Norwood

ORDER AND AMENDED OPINION

ORDER

The opinion filed July 9, 2009, 572 F.3d 626 , is amended as follows:

Page 629, column 1, line 26, Add a footnote after “Defendants appeal.” stating: “Only an Eighth Amendment outdoor exercise claim is before us on this appeal. We therefore express no view as to the race-based aspect of the lockdowns or any potential Equal Protection claim.”

Page 632, column 2, lines 36-37, Replace “constitution” with “Eighth Amendment”

Page 633, column 1, line 35, Replace “lawful” with “consistent with the Eighth Amendment”

Appellee’s Petition for Panel Rehearing and Rehearing en banc is otherwise denied. See Fed. R.App. P. 35, 40. Judge Thomas would grant the petition.

No further petitions for rehearing or rehearing en banc may be filed.

*1065 OPINION

We consider when prison officials may be held liable for depriving inmates of outdoor exercise.

Facts

Gregory Norwood was incarcerated at CSP-Sacramento, a maximum security prison, during a particularly violent period in the prison’s history. Norwood brought this section 1983 action alleging that prison officials violated the Eighth Amendment when they denied him outdoor exercise during four separate…

dissenting:

There is no reason on this record to disturb the jury verdict. The district court correctly analyzed the law and properly instructed the jury consistent with our precedent. The jury considered all of the evidence and rejected the government’s *1071 theory that defendants were not deliberately indifferent because security concerns justified the ongoing deprivations. Substantial evidence supports the jury verdict.

I would not reach the question of qualified immunity because the government did not preserve the issue for appeal. Assuming for argument’s sake that it was proper for us to entertain the defense, I would hold that the defendants were not entitled to qualified immunity. Clearly established law precludes prison officials from depriving inmates of outdoor exercise for extended periods absent exigent circumstances. The jury’s finding that defendants acted with reckless disregard to the risk to Nor-wood’s health and safety leaves no room to conclude defendants could reasonably have believed their actions lawful.

For these reasons, I must respectfully dissent.

I

We afford trial judges “substantial latitude in tailoring jury instructions.” Mockler v. Multnomah…

Facts

Gregory Norwood was incarcerated at CSP-Sacramento, a maximum security prison, during a particularly violent period in the prison’s history. Norwood brought this section 1983 action alleging that prison officials violated the Eighth Amendment when they denied him outdoor exercise during four separate extended lockdowns over the course of two years.

The prison initiated these lockdowns after serious inmate assaults on staff. During the lockdowns, inmates were con- fined to their cells and normal programs were suspended while officials investigated the violence. Based on what they learned, officials gradually eased restrictions on specific gangs, ethnic and racial groups, restoring outdoor exercise sooner for inmates who they believed would pose less risk of further violence. Norwood was not a gang member, but gang 8498 NORWOOD v. VANCE members often pressured unaffiliated inmates of the same race or ethnicity to assist them. Prison officials therefore believed that limiting the scope of lockdowns to gang mem- bers would be inadequate to ensure safety.

During this two-year period, there were also numerous inmate-on-inmate attacks. Officials did not always…