good morning your honor it's may please the court many was eric rochas time representing rudy rodriguez the appellant in this case i would like to reserve two minutes for rebuttal the issues in this case are not very complicated and the facts are not very complicated but they are important the at issue is whether a deprivation of outdoor exercise for forty days is a violation of the eighth amendment now because of the posture of this case that a motion for summary judgment was granted against against mr rodriguez the court must accept the fact that mr rodriguez was deprived of all outdoor exercise for forty days even the defendants of one point in their response to undermine that claim for purpose deprivation of outdoor exercise was to fission long term to violate the eighth amendment and what is important in that case is not only that it was six weeks which is at most two days more than the deprivation that occurred here but the prisoner in that case was allowed forty five minutes of exercise per week so the plaintiffs mean allen actually received a minimum of three hours and forty five minutes more exercise total in a in a forty days then mr rodriguez did and you could count that in terms of hours you could see there are x number of days  exercise not thirty six days in which there were not exercise yes alan and here we have forty days without any action without any exercise whatsoever ok or or is in that case the the prisoner whose name smith so it got me confused for a while but at least the prisoner they're talking about the court made a point of saying that his incarceration in the special housing unit was indefinite and therefore potentially long term now that apparently does not apply to your client does that make a difference well i would disagree that it doesn't apply to my client because on my client was originally segregated on february twenty fifth and march third the institutional classification committee held that mr rodriguez should be segregated indefinitely it was not until the twenty eighth of march so over a month later that they made the decision that he should removed he should be put back in the general population so for a period of over a month he didn't know how long he didn't know if it was going to be there he was going to be segregated indefinitely and obviously  alan i mean i don't know the exact facts in terms of how they determined it was indefinite but it was it was a period of six weeks so there was an end date to that deprivation as well but in terms of the psychological impact it would have had on mr rodriguez he had no idea when he was going to be placed in the back in the general population so it would be it was indefinite from his perspective and it wasn't even indefinite until the c made its decision in at the end of march that the mr rodriguez was not at fault and therefore should be placed back in the general population my problem with your case is assuming damage suit and we're parsing the cases here you've got a qualified immunity problem that is to say not only does this have to be a violation this has to be a very clear violation if i can sort of paraphrase the case law how do we get from violation to a clear violation of any reasonable correctional officer should have known if it's taking us this amount of work to parse the cases well i believe that there's several reasons when one i that the defendants are entitled to qualified immunity and i base that on a few things one is that the right it's outdoor exercise was this that was in the ninth circuit twenty five years ago in spain versus you know where there was a forty year yes for the nation and also and more importantly an alan the court found that six weeks was sufficient deprivation and that even at that time the law was clearly established that this was a sufficiently long term depravation to violate the eighth amendment one other thing that i think is important is  department of corrections regulations state that even prisoners housed in administrative segregation units have a right to a minimum of ten hours per week of outdoor exercise so for defendants to argue that they didn't know that there was a right to the prisoners to have a director sized i think is somewhat disingenuous and they justify their actions by saying that there were these gang fights occurring at the time and that they were understaffed essentially and couldn't provide monitors the issue of the gang fights was addressed more or less in lopez saying that it not sufficient justification that you're saying that you deprive this prisoner for his own protection you mean you need more than that you can maybe he needs special dispensation he can't go out and yard but that's not that's not enough and the fact that the courts made the understand or the prisons may be understaffed i don't necessarily dispute but that's not sufficient justification to deprive an inmate of his  eighth amendment right take the record for the court the plaintiff has failed to establish that he was denied his constitutional rights to be free from cruel and unusual punishment secondly even if the court were to determine that a constitutional violation had occurred the defendants as correctional officers would be entitled to qualified immunity because it was not sufficiently clear or clearly established that at the time of the alleged offense which is in two size less than forty two days was not clearly established it's important to note in this manner with regard to mr rodriguez he had been placed in administrative segregation which  sentially by definition is a temporary situation it's a temporary condition of his housing administrators segregation is not permanent by nature of the regulations that mr had an opportunity to appear before the classification committee within ten days and then to appear again within thirty after the hearing following the ten day initial period in ministry of segregation furthermore  at the time of the alleged affair alleged violation i reasoned officer would not be in a position to determine whether or not it's a period of confinement without outdoor exercise that was less than forty two days or in excess of twenty one or twenty two days would result in a constitutional violation it would be reasonable to expect the officer to do that nor would it be  the officer know was that this deprivation of actual size for forty consecutive days is a violation of prison regulations and the officer also know about  now someone who knows he's violating valid or not likable regulations you may or may not be able to know for sure where the allen constitutional line and your honor we would propose that the officer  let's just say alan because it's forty two days during which there was some minimal amount of exercise right and the purpose of the qualified immunity it would be the constitutional right of the inmate that must be clearly established and if that were clearly established at twenty two days and as long as the inmates had not been deprived of outdoor exercise either to the same level the same number of days forty two immunity it is a relevant any violation of prison regulations you don't believe a prison regulations have a fifteen regulation would give rise to a constitutional violation of basis for  regulation that he's got qualified immunity does it make a difference to the qualified immunity that there's a prison regulation that you know is violating if you want i believe it as long  clarity of the constitutional line and violation of regulations that issues neither here nor there yes ron and i believe that again i think as i've argued i'm trying to lead you to an answer to the argument that was made before a violation of a prison regulation is or procedure with in california for an inmate to pursue grievance or any kind of remedial action complains was it without the violation of the prison regulations and it would have the would be an additional level of view that the inmate could see with in the institution and if that wasn't satisfactory the inmate could then appeal it to the directors level outside of the institution for reme the grievance was ruled upon the inmate had been transferred out of administrators segregation and had been moved to a different area within the institution believed by then the inmate actually was made from c eight to do three and then i believe to be facility and at the time i think i think could be done or it may i take it that the california internal procedure is a is a remedial one not ok thank you thank you very much established right allan the court stated that a public official is not entitled to qualified immunity when the contours of the right are sufficiently clear that a reasonable fish would understand what he is doing violates that right foreshadow our particular result so the fact that forty days had not been decided by the ninth circuit i don't think is dispositive in this case forty two days had been decided what about thirty eight well and that's the inevitable argument how  those two points actually to that one is there have been prisoners housed in ca for three months before mr rodriguez got there and none of the record reflects that none of them had gotten outdoor exercise for any of that time  well and that that is true but well one other point i think that goes to that is the in terms of deprivation of rights for prisoners under the eighth amendment it's important to keep in mind that the standard should reflect the current scientific and evidence of what is required for help and alan was decided ten ten years  ago and said that forty two days was sufficiently long term the lopez which was decided six years ago six and a half weeks is longer than al and therefore it qualifies as a long term right but that doesn't necessarily mean that anything short of and how and i would argue well not sufficiently well attorneys twenty one days isn't right but in this case where between twenty one and forty two there's some