morning your honour's may please the court kevin king court appointed to micus for appellant lionel mcrae i'd like to focus on mr macrae's deprivation of exercise claim which is one of the two claims on which this court requested briefing and in particular i'd like to focus on the early stage of this litigation were here on a motion to dismiss which means that all well we did factual allegations of complaint must be taken as true in all reasonable inferences must be drawn in the plaintiff's favor that simple straightforward rule resolves and dispose of quite a few or perhaps even all of the defendants arguments for dismissal here where the defendants are seeking to have inferences drawn in their favor or are simply challenging the accuracy of  allegations that's not something you can do on a motion to dismiss it is however something you can do on summary judgment here we haven't had discovery we haven't had summary judgment to start with the objective of the th amendment analysis this court recognized thirty five years ago anderson that the th amendment protects the right of inmates to exercise and the allegation here is that mr mcrae was deprived entirely of that right for a four month period in other words he was unable to exercise at all at green haven because all but one of the exercise yards were closed i think it's really two months right i mean i know these were supplied i guess on appeal but it appears that he was in this lockdown period that winter for two hundred and thirty day intervals rights and the the other points in the winter where the yards more i see you could have had indoor exercises really two months that you're saying he could have neither right i don't agree with that your honor i think that the complaint is ambiguous at best about when exactly he was subject to all this but what he says i believe it's on page let's see here on page eighty nine in paragraph eleven he says for four months he was unable to exercise it's true he says at the top keep locked for either thirty or sixty days but i don't read the allegation if you go down to the next paragraph on eighty eight and then turn it over to eighty nine i would be eighty nine he says he was exposed to these dangerous winter conditions for four months so just talking about the yard for months refers to the yard had ice for four months it doesn't say i can exercise indoors for four months isn't it but i understand what you're saying and he did in those records on appeal which is not the way it works let me speak to the indoor gymnasium  briefly on eighty eight in that in the st full paragraph i believe what he says there is that access to the indoor gymnasium was restricted to special call outs for special events only and if you're reading the complaint liberally this is a pro se complaint and you inferences in the plaintiff's favor i think what you have to conclude there is it wasn't available to you ledges that he was deprived of all exercise he alleges that access was restricted a reasonable inference from those two things is the gymnasium was not available to him regardless of claim what what do you think he's doing this thing which is your client's case from the standard slip and fall two responses that chief judge st i don't have a client here i'm appointed by you so you were centrally are my client  s but it's going to the merits of that there are two claims in this case there's a slip and fall claim and a deprivation of exercise claim what i've been discussing thus far has been about the latter your question i take it goes to the former the slip and fall claim here is quite weak it's thin we gave in our brief what we think is the best available argument in support of that claim that it would meet this exceptional circumstances test but i think frankly it's it's a very tough road for the appellate on that issue i think it's a different analysis for the deprivation of exercise cl think courts of look to four factors are several factors maybe five factors if you look at the williams case on page eighteen footnote ten of my brief you'll see what those factors are there things like the you know the duration of the deprivation and the extent of the deprivation the justification things like that and so that's the kind of argument that i think could prevail for the state on a summary judgment but i don't see how in a motion to dismiss you could say well four months is you know it's so short right this court has said case you know the opportunity to exercise in name only is not enough and that's the allegation here so again i don't see a way out that claim could be dismissed you define as i understand  respect to qualified immunity vis the standard to be the right to be the right to safe living conditions that would be the right with respect to the slip and fall claim but the clearly established right is different with respect to the well there's a deep bench of precedent in this court using regular exercise indoors does that count absolutely imprisons get significant deference significant difference in the type of exercise when it's provided how much all of these things but what the one thing they can't do with the one thing that it's alleged that they've done here which is provide an opportunity to exercise in name only but without substance so that's the clearly established we point out on page twenty of our brief  you know the three facts that go to the subjective prong of the th amendment analysis just a few clean up points i see them over my time significantly here the defendants assert in their final brief in response to my brief that the defen did not request damages against the defendants in their individual capacities with regard to the deprivation of exercise claim that's not true if you look at page a ninety nine of the appendix you'll see the complaint asserts a claim for compensatory damages in specific dollar amounts with regard to each defendant and does not differentiate between the two claims however we do agree or i do agree with the defendants that injunctive relief is improper here mr mcrae is no longer at green haven there's no sign that he'll return to green haven outdoor exercise as the short recognized the ground outside was simply because of snow or ice that is a condition that is faced by the the general public you picture it a member of the public on a winter exercise on that day even though as did make it brief states recently been a major snowstorm and it was one of the most up snow if that weren't on record so even in that you know it doesn't really come down to this issue of the indoor exercise because obviously days that it was the whole winter that he couldn't go outside because it was too icing call because it was a record year and that he was not allowed indoor exercise that would be for him that he needs your exercise for potentially  up to four months i don't believe that they play as compliance can be read consistent is saying that there was no exercise at all for four months or the complaint that he say i into i went to indoor exercise or outdoor exercise is simply a condition of being in a northern climate in the winter furthermore there is apparently no case holding that allowing ice and snow to humiliate outdoors at a prison just two points on rebuttal st let me start with the inmate porters it's it's true that i think those allegations are not brought back into the nd minute complaint but i think actually one further thought the point is academic because if you look at the  two allegations of the prior complaints they admit nothing the st one that cited by the defendants says the work done by the inmate porters if any was done at all or something to that effect the nd says that the inmate porters to the extent they were doing any work in the yard they left significant snow and ice in the walkways and the very next paragraph on that page that cited by the defendants says no snow and ice removal so read in context the prior allegations are not admissions they do not undermine the current claims so i think that resolves the inmate porters finally did counsel for defendant said that you know any claim based on a slippery surface would fail and frankly i would agree but that's not the claim here again the claim here is a complete deprivation of the right to exercise that right has to occur somewhere indoors outdoors wherever and so the allegation on the st issue is is not about a slippery surface it was that clear feel so for these reasons i would urge the court to reverse and remand with respect