1 8-1144

M c C ray v. Lee

1 U NITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2019 5 ( Argued: February 1 9, 2020 Decided: June 18, 2020) 6 Docket No. 18-1144 7

_ ________________________________________________________ 8 L IONEL MCCRAY, 9 Plaintiff-Appellant, 10 - v. - 11 Superintendent W ILLIA M L EE, Watch Commander Lt. PLIMLEY, 12 S ergeant KUTZ, 13 Defendants-Appellees . * 14

_

________________________________________________________ 15 B efore: KATZMANN, Chief Judge, KEARSE and BIANCO, Circuit Judges . 16

* The Clerk of Court is instructed to amend the official caption to

conform with the above.1 Plaintiff pro se, a New York State prisoner, appeals fro m a judgment o f 2 the United States Di strict Court for the Southern D istrict of New York, Kenneth M. 3 Karas, Judge, dismissing his action under 4 2 U.S.C. § 1983 a gainst correctional facility 4 o fficials for failure t o c lear snow and ice fro m outdoor exercise yards for an entire 5 w inter, thereby allegedly v i olating plaintiff's rights under the Eighth Amendment by 6 ( a) denying him physical exercise for four months, and (b) causing him to be injured 7 in a slip-and-fall accident. The district court granted defendants' motion to dismiss 8 pursuant to F ed. R. Civ. P. 12(b)(6) on grounds of qualified immunity and failure t o 9 state a claim on which r e l ief can be granted under the Eighth Amendment, and o f 10 mootness as to plaintiff's requests for injunctive relief given his transfer to a different 11 c orrectional facility. See M cCray v. Lee, No. 16-CV-1730, 2018 WL 1620976 (S.D.N.Y. 12 M a r. 29, 2018). On appeal, plaintiff challenges these rulings and contends that 13 d efendants' failure also violated a 1985 consent decree. We c onclude that the district 14 c ourt e rred in dismissing pursuant to Rule 1 2(b)(6) the Eigh th A m en dment c l aims 15 seeking damages for the d enial of exercise, but we affirm the di s m i s s al of the 16 r emaining Eighth Amendment claims. 17 Affirmed in part, vacated and remanded in part.

21 Lionel McCray, Auburn, New York, Plaintiff2 Appellant pro se . 3 DAVID LAWRENCE III, Assistant Solicitor General, New 4 York, New York (Letitia J ames, Attorney General o f 5 the State o f New Y ork, Barba ra D. Underwood, 6 Solicitor General, Anisha S . Dasgupta, Deputy 7 Solicitor G e ne r a l, Ne w Y ork, New York, o n the brief), 8 for Defendants-Appellees . 9 KEVIN KING, Wash i n g ton, D.C. (Amy Leiser, Covington 10 & Burling, on the brief), Court-Appointed Amicus11 Curiae, in support of Plaintiff-Appellant . 12 KEARSE, Circuit Judge : 13 Plaintiff pro se Lionel McCray, a New York State prisoner, appeals from 14 a judgment o f the United States District Court for the Southern D istrict of New York, 15 Kenneth M. Karas, Judge, dismissing his claims brought under 42 U.S.C. § 1983 and 16 state law, a lleging that the defendant o fficials at the correctional facility where he was 17 previously incarcerated failed to clear snow and ice from outdoor exercise yards for 18 an e ntire winter and thereby violated his rights under the Eighth Amendment b y (a) 19 d enying him a meaningful opportunity for physical exercise for four months, and (b) 20 c ausing him to be injured in a slip-and-fall a ccident. The district court granted 21 d efendants' motion to d ismiss McCray's second amended compla i n t pursuant t o 22 F ederal Rule of Civil Procedure 12(b)(6), principally ruling that McCray failed to state 31 a claim under the Eighth Amendment; that if such a claim for damages were stated, 2 d efendants would be entitled to qualified i mmunity; and that requests for injunctive 3 r elief were moot because McC ray had been transferred t o a different correctional 4 facility. The court also declined to exercise supplemental jurisdiction over McCray's 5 state-law claims. On appeal, McCray challenges th es e rulings and contends that 6 d efendants' failure also v iolated a 1985 consent d ecree. We conclude that the district 7 c ourt erred in granti n g a Rul e 12(b)(6) dismissal of McCray's Eighth Amendment 8 c laims seeking damages for the denial of physical e x ercise; and as those c laims are t o 9 b e reinstated, w e also reinstate McCray's state-law clai ms. In all other respects, we 10 a ffirm.

11 I. BACKGROUND

12 The second amended complaint in this a ction (hereinafter " Complaint" 13 o r "SAC") a l l eg ed the following facts, which must be t aken as true for purposes o f 14 c onsidering a dismissal pursuant to Rule 12(b)(6).

41 A . The Events 2 During part of 2013-2014, McCray was incarc era ted at Green Haven 3 C orrectional Facility ("Green Haven") in Stormville, New York. During that period, 4 d efendant W illiam Lee was Green Haven's Superintendent and was responsible for 5 o perations, management, policymaking, and correctional officer sup ervision; 6 d efendant William P limley, who served as Facility Watch Commander, was an agent 7 o f Lee and w as responsible for implementing policies a dopted by L ee. ( See SAC ¶¶ 2, 8 4 .) D e fendant Sergeant Kutz was an agent of Lee; his d uties included inspection o f 9 the outdoor exercise y ard available to McCray, and supervision of McCray's physical 10 a ctivity. ( See id . ¶ 12.)

11 1 . The Denial of Physical Exercise 12 For part o f the winter of 2013-2014 ("Winter of 2014" or " W inter"), 13 M c C ray w as on "keeplock" status. In that status, he was allowed out o f his cell each 14 d ay for one hour o f exercise. Green Haven had several o utdoor e xercise yards and 15 o ne indoor gymnasium. M cCray was permitted t o exercise only in an outdoor yard; 16 a ccess to the indoor gymnasium, which was sometimes used for special events, was 17 r estricted to inmates in other categories. ( SeeSAC ¶¶ 8, 9.)

51 In the Winter o f 2014, Lee's policy was not to have snow and ice removed 2 from any outdoor exercise yard. R ather, the snow and i ce w ere allowed t o 3 a ccumulate in each y ard, to remain there until the arrival of sufficientl y warm 4 w eather to melt the snow and ice a way. During the winter months, any natural 5 melting that o ccurred r e froze into slippery ice overnight, and the y ard remained 6 uncleared. ( See id . ¶¶ 6, 10.) 7 In that Winter, Lee closed one o r mor e o u t d o o r r e c reational yards. Given 8 that Green Haven's prisoner population w as a t the facility's maximum capacity, the 9 c losures and the snow-and-ice accumulation s c reated overcrowding in the open 10 y ards, blocked access to the yards' e xercise equipment, and prevented McCray from 11 moving sufficiently freely to be able to exercise. ( See id . ¶¶ 6, 9 .) These impediments 12 t o exercise persisted for four months. ( See id . ¶ 11.) 13 Defendants Lee and Plimley were aware of these circumstances. The 14 c onditions (a) were "easily visible from the facility's long hallways," and (b) were the 15 subject of inmate griev ances and complaints. (SAC ¶ 7.)

16 2 . McCray's Slip and Fall 17 By February 20, 2014, a ll of the r ecreational yards at Green Haven were 61 c overed with uncleared sno w a n d i c e; in more than 75 percent of the areas, 2 a ccumulated snow and ice w ere waist-high. On that day, S erge ant Kutz inspected the 3 G and H block yard and o rdered McCray an d o th er i n mates to enter for exercise, 4 despite those conditions. While a ttempting to avoid a large sheet of ice, Mc Cra y 5 stepped into a snowbank and sl i p p ed on concealed ice, permanently injuring his 6 ankle and shoulder. ( S eeSAC ¶¶ 10, 12-14, 17.)

7 B . Dismissal of the Present Action 8 McCray commenced the present action in 2016, b y which time he had 9 b e en moved to a different c orrectional facility. Th e C o m plaint--filed after various 10 proceedings addressing his o r i gina l and hi s fi r st amended pleadings--alleged that the 11 r efus a l o f defendants at Green Haven t o have snow and ice removed from the only 12 e xercise areas available to M cCray had deprived him, for four months, of his Eighth 13 A mendment right to exercise, and had caused his slip-and-fall accident by denying 14 him a "hazard free environment" as required by the Eighth Amendment and state law 15 (SA C ¶ 1 8). McCray requested declaratory and injunctive relief, as well a s 16 c ompensatory, punitive, and future damages. 17 D e fe n d ant s m o ve d to d i s m i s s the C o m p l a int princ i pa l ly pu r su ant t o F e d . 71 R . C iv. P. 12(b)(6). They argued that the Complaint failed to state a c laim under the 2 E ighth Amendment; that they were entitled t o qualified immunity on the ground that 3 no such Eighth Amendment righ t s had been clearly established; that McCray's 4 r equests for injunctive relief were moot because he was no longer at Green Ha v en; 5 and that, abs en t any viable Eighth Amendment claim, the c ourt lacked jurisdiction 6 o ver McCray's state-law claims. 7 In an Opinion and Order reported in McCray v. Lee, No. 1 6

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- 1 73 0, 2 0 1 8 8 WL 1620976 (S.D.N.Y. March 29, 2018) ( " McCray I"), the district c o urt g ranted 9 d efendants' motions. It held, first, that the C omplaint failed to state a claim under the 10 E ighth Amendment with respect to McCray's slip-and-fall accident. The court noted 11 that slip-and-fall claims are seldom viewed as having constitutional d imension, see, 12 e .g. , id . at *7, and it rejected M cCray's argument that Kutz's ordering McCray o nto the 13 slippery yard constituted an "exceptional c ircumstance" th a t rose to the level of a 14 c onstitutional viola ti o n, reasoning (1) that "conditions such as winter snow and ice 15 ' constitute a daily ri s k faced by members o f the public at large,'" id . a t *8 (quoting 16 R eynolds v. Powell, 370 F.3 d 1 0 2 8 , 1031 (10th Cir. 2004)); (2) that McCray was not 17 o rdered to walk on ice but was ordered simply to proceed into the yard, see McCray I , 18 2 018 WL 1620976, at *8; and (3) that 81 [t]he allegations in the SAC are insufficient to allege plausibly that 2 any Defendant acted w ith a sufficiently culpable sta te of mind 3 because Plaintiff has, at most, alleged that Defen dants were 4 negligent, not that any [D]efendant obdurately and wan to nly 5 refused to remedy a specific risk to [P]laintiff, 6 i d . at *9 (internal quotation marks omitted). 7 Turning to McCray's Eighth Amendment denial-of-exercise claims, the 8 c ourt viewed McCray as requesting only injunctive relief, see McCray I , 2018 W L 9 1 620976, at * 10 n.11, and it held that his c laims were moot because he was no longer 10 housed at Green Haven, see id . a t *10. The c o urt held that to the e x tent that McCray 11 r equested damages for denial of exercise, he failed to allege a viable Eighth 12 A mendment claim, stating as follows: 13 If P laintiff in fact seeks damages for an Eighth A mendment claim 14 for restricted a cc es s to e x ercise separate from his slip and fall 15 injuries, . . . his al legations a re insufficient to state a c laim. 16 " [T]emporary limitations on access t o exercise, without full denial 17 of opportunities, do[] not violate the E ighth Amendment." Burns 18 v. Martuscello, No. 13-CV-48 6 , 2 0 1 5 WL 541293, at *12 (N.D.N.Y. 19 F eb. 1 0, 2015). Defendants' choice to temporarily restrict access to 20 some of the recreation yards due to the presence of ice, is not "based 21 o n a culpable state of mind o r deliberate indifference to 22 [Plaintiff's] health or safety, but the legitimate p enological interest of 23 w aiting until the yard was cleared o f i ce and snow so that it w o u l d b e 24 safe for inmates to use ." Id . 25 M c Cray I

, 2018 WL 1620976, at *10 n.11 (emphases ours). The court continued:

91 " [A]n occasional day without exercise when weather conditions preclude 2 outdoor activity [is n ot] cruel and unusual punishment. With outdoor 3 recreation s p ace provided and opportunity f or its daily use assured, the 4 absence of additional exercise space indoors and of recreation a l 5 equipment for use in the outdoor space i s no t a denial o f 6 constitutional rights." . . . . And, . . . Plaintiff made use of outdoor 7 recreation options . . . . 8 I d . (quoting Anderson v. Coughlin , 757 F.2d 33, 36 (2d Cir. 1985) (emphases ours)). 9 The court a lso concluded that if McCray had sufficiently pleaded a claim 10 under the Eighth Amendment, defendants would be entitled to qualified immunity. 11 It stated that "a prisoner[']s constitutional right against a failure to remedy naturally 12 a ccumulating ice or snow during winter months has not been clearly e stablished by 13 e ither the Supreme Court or the Second Circuit." Id . at *10. 14 Hav ing d i s mi sse d M c C r ay ' s fe d e r a l c l a i m s, the c ourt declined to exer c i se 15 supplemental jurisdic tion over his state-law claims. See id . at *11. 16 McCray timely appealed and filed his appellate b rief pro se . During the 17 a ppeal, he moved for appointment of counsel. The motion was granted to the extent 18 that counsel was to brief the Eighth Amen d m ent issues; but, for various reasons, 1 9 M c C r ay d e c l ine d the a ppo intment . F o l l o w ing d e fendants' filing their brief, this Court 20 a ppointed counsel to present Eighth Amendment positions on behalf of McCray as 21 a micus curiae . 101 II. DISCUSSION

2 On appeal, M cCray contends that the district court should have denied 3 d efendants' motion to d ismiss in its entirety . H e a rgues principally that the Eighth 4 A mendment (a) protects a prisoner' s ri ght to meaningful physical e x ercise, and (b) 5 r equires the state to maintain conditions that do not jeopardize a prisoner's health or 6 safety. 7 In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court 8 " must accept as true a l l of the factual allegations contained in the complaint." Erickson 9 v . Pardus , 551 U.S. 89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 5 50 U.S. 544, 555- 10 5 6 (2007) (" Twomb ly " ) ) . While the court is not required to accept as true allegations 11 that are wholly c o n c l usory, see, e.g. , Ashcroft v . Iqbal, 556 U.S. 662, 6 78-79 (2009) 12 ( " Iqbal "), the Federal Rules of Civil Pro c ed ure p rovide that the c omplaint should 13 c ontain " a short and plain statement o f the claim showing that the pleader is entitled 14 t o relief," Fed. R. Civ. P. 8(a)(2). Thus, "the statement need only 'give the defendant 15 fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson , 551 16 U .S. at 93 (quoting T wombly, 550 U.S. at 5 55 (other internal quotation marks omitted)). 17 A llegations of facts that would show " that a risk was obvious or otherwise must have

111 b e en know n " ca n be sufficient. Walker v. Schult, 717 F.3d 119, 125 ( 2d Cir. 2013) 2 ( " Walker ") (internal quotation marks omitted). 3 A complaint filed by a plaintiff p ro se is to be c onstrued "liberally to raise 4 the strongest arguments [it] suggest[s]." Id . at 124 (internal quotation marks omitted); 5 s ee, e .g. , Erickson , 551 U.S. at 94. To avoid d ismissal pursuant to Rule 1 2(b)(6), it " must 6 c ontain sufficient factual matter, accepted as true, to state a claim to relief that is 7 plausible on its face," i .e. , sufficient factual content to "allow[] the c ourt to draw the 8 r easo n abl e inference that the defendant is liable for the misconduct alleged." Iqbal, 9 5 56 U.S. at 678 (internal quotation marks omitted). 10 Giv e n the se prin c i pl e s, w e c o nc lu d e tha t the C o mpl a int states cognizab l e 11 E ighth Amendment claims for damages with regard to the d enial o f phy si cal exercise.

12 A . The Eighth Amendment Claims for Denial of Physical Exercise 13 We begin by noting th at the district c ourt properly dismissed as moot 14 M c C ray's requests for injunctive or declarato ry r e l i e f a g a in st o ffi c i als at Green Haven. 15 The Complaint itself showed that McCray had been moved to a different correctional 16 facility. An inmate's transfer from a prison facility moots his c l aims for declaratory 17 o r injunctive relief against officials of the transferring facility. See, e.g. , Salahuddin v. 121 G oord, 467 F.3d 2 63, 2 72 (2d C ir. 2 006). However, the transfer does not moot his claim 2 for da ma g e s, i d . ; an d c o ntr a ry t o the d i strict court's view, M c C ray's Complaint alleged 3 v iable damages claims for the denial of physical exercise. 4 The E ighth Amendment prohibits the infliction of "cruel an d unusual 5 punishments." U.S. Const. a mend. VIII. To state an Eighth A mend ment claim against 6 aprison official based on conditions of confinement, 7 an inmate must allege that: (1) objec tively, the deprivation the 8 inmate suffered wa s "sufficiently serious that he was denied the 9 minimal civilized measure o f l ife's n ec es sities," and (2) 10 subjectively, the defen d ant official acted w ith "a sufficiently 11 culpable state of mind . . . , such as deliberate indifference t o 12 inmate health or safety." 13 W

a l ker, 717 F.3d at 1 25 (quoting Gaston v. Coughlin , 249 F.3d 156, 164 (2d Cir. 2001)); 14 s ee Farmer v. Brennan , 511 U.S. 825, 834 (1994). 15 Conditions of confinement inflict c ruel and unusual punishment 16 when they result "in un questioned and serious d eprivations o f 17 basic human needs" or "deprive inmates of the minimal civilized 18 measure of l ife's necessities." Rhodes v. Chapman , 4 52 U.S. 337, 347, 19 101 S.Ct. 2392, 2399, 6 9 L.Ed.2d 59 ( 1 9 8 1 ) . . . . Courts have 20 recognized that some opportunity f o r ex e rcise must be afforded to 21 prisoners . 22 A nderson v. Coughlin , 757 F .2d 33, 34-35 (2d C ir. 1985) (emphasis added) (citing Ruiz 23 v . Estelle, 679 F.2d 1115, 1151-52 (5th C ir.), modified on other grounds , 688 F.2d 266 (5th

131 C ir. 1982), cert. denied, 460 U.S. 1042 (1983); Newman v . A labama, 559 F.2d 283, 2 91 (5th 2 C ir. 1977), rev'd in part o n other grounds s ub nom . Alabama v. Pugh, 438 U.S. 781 (1978)); 3 s ee also Jolly v . Coughlin , 7 6 F.3d 468, 480-81 (2d Cir. 1996) ( a ffirming preliminary 4 injunction requiring prison officials to allow plainti ff i n mate, a fter prolonged 5 c onfinement to his cell with little exercise, a meaningful oppo rtun ity for physical 6 e xercise); Williams v. Greifinger , 97 F.3d 699, 703-04 (2d Cir. 1996) (" Williams ") (in this 7 C ircuit a prisoner's Eighth Amendment right to " receive some opportunity for 8 exerc ise" is " settled"). Although deprivations of physical exercise for short periods 9 w ill not rise t o constitutional dimension, Eighth Amendment claims for periods far 10 shorter than the four months for which McCray alleged he was deprived have been 11 held viable. See, e.g. , A ntonelli v. Sheahan , 8 1 F.3d 1422, 1432 (7th Cir. 1996) (reversing 12 d is mi s sal of complaint for seven-week d eprivation); Lopez v. Smith, 203 F.3d 1122, 13 1 132-33 (9th Cir. 2000) (en banc) (reversing summary judgment dismissal of a claim 14 for six-and-one-half-week deprivation). 15 The C omplaint alleged that McCray had been d ep ri ved of any 16 meaningful opportuni ty for physical exercise for four months because of the policy 17 a dopted by Lee, and a dministered by Plimley, of declining to have any snow or ice 18 c leared from any Green H a v en outdoor exercise y ard in the e ntire Winter of 2014.

141 W ithout suggesting that McCray's mone t a ry r e quests were limited to his slip-and-fall 2 c laims, the Complaint r e quested compensatory da mages of $550,000 and $425,000 3 from Lee and P limley, respec tively, and punitive damages of $2 million from Lee. 4 ( See SAC ¶ "V. Relief.") W e thus cannot agree with the district c ourt's view that 5 M c C ray requested only equitable relief for his Eighth Amendment claims of denial 6 o f physical exercise. 7 Nor do we agree with the district court's suggestion that the Complaint 8 a lleged merely a "temporar[y] r estrict[ion of] access , " M c C ray I , 2 018 WL 1620976, 9 a t *10 n.11, to snow- and ice-covered yards. While the denial of access to meaningful 10 physical exercise ended when warm weather allowed the snow and ice to melt fully 11 and not refreeze, the Complaint d i d not allege that defendants merely imposed 12 temporary restrictions. It a l leged that one or more yards were entirely c losed down 13 for the Winter of 2 014, and that Lee adopted a policy, followed by Plimley, to allow 14 the e xercise yards t o accumulate snow and ice, witho ut c learing any of it away, for 15 the entire Winter. The C omplaint does not suggest that there w a s any penological 16 r eason, in disregard of the rights of inmates for a meaningful opportunity for physical 17 e xercise, to refuse to have the yards cleared of i ce and s n o w f or an entire third of a 18 y ear. 151 Further, having characterized the actions of Lee and Plimley as merely 2 " temporarily restrict[ing exercise yard] access" and noting that "there i s no 3 c onstitutional r i ght to indoor exercise," the court stated that "Plaintiff made use o f 4 o utdoor recreation options." Id . This characterization o f M c C ray's acts did not accept 5 the factual allegations of the Complaint as true. And t o the extent that the court may 6 have zeroed i n solely on the principle that i t does not violate Eighth Amendment 7 r ights t o have "'an occasional day without e xercise,'" i d . (quoting Anderson v. Coughlin , 8 757 F .2d at 3 6), that fragment of language cannot safely be unbundled from the stated 9 hypothesis that informed it. In Anderson v. Coughlin , w e made those observations that 10 the lack of "indoor" exercise and the "occasional day without exercise" do not give rise 11 t o a constitutional claim where "outdoor recreation space [is] provided[,] and 12 opportunity for its da ily u se [is] assured ." 757 F.2d a t 36 ( emphasis added). We stated 13 that " the absence of additional exerci s e sp ac e i ndoors . . . is not a denial o f 14 c onstitutional rights." I d . (emphasis added). Any assumption that defendants here 15 a ssured the opportunity for meaningful daily outdoor exercise in the Winter of 2014 16 i s squa rely contradicted by McCray's Complaint, which alleged that with the 17 o vercrowding, the closure of one or more of the yards, and the shrinking space within 18 the yards because of defendants' refusal to have i ce and snow cleared a way, leaving 161 more than 75 percent of yard space with snow and ice at waist height, McCray in fact 2 d id not have room to exercise and was denied any meaningful exercise opportunity 3 for four months. ( See, e.g. , SAC ¶¶ 6, 9-11.) 4 Defendants argue that these allegations in the Compl ai n t should be 5 d iscredited because McCray made "admissions" in his earlier pleadings th a t G reen 6 Haven employed inmates to clear snow and ice from walkways. ( E.g. , Defendants' 7 b r i e f on appeal "in Response to Amicus Curiae" at 5 .) Howev er, e ven if plaintiff's 8 statements in an earlier complaint are determined to be inconsistent with allegations 9 in the superseding c omplaint, if not repeated they are not part of the o p era ti v e 10 c omplaint. Though the prior statements may b e admissible a gainst th e plaintiff in 11 l a ter stages of the proceedings as admissions, consideration of a motion under Rule 12 1 2(b)(6) is limited t o the contents of the operative complaint and documents attached 13 t o it or incorporated into it by reference. S ee, e.g. , D angler v. New York City Off Track 14 B etting Corp. , 193 F.3d 130, 1 38 (2d Cir. 1 999); Chambers v. Time W arner, Inc. , 282 F.3d 15 1 47, 152-53 (2d Cir. 2002). We decline defendants' invitation t o a ffirm a Rule 12(b)(6) 16 d ismissal on the basis of m a tters beyond the operative c omplaint and documents 17 d eemed part of it. 18 The d istrict c ourt a lso found that the C omplaint failed to allege that

171 d efendants had a "sufficiently culpable state of mind," stati ng that its allegation o f 2 " deliberate indifference" was a "conclusory legal allegation[]." McCray I , 2018 WL 3 1 620976, at * 9 (internal quotation marks omitted). However, the Complaint included 4 a llegations that the i mpassible conditions in the yards were visible through windows 5 a t the ends of hallways and that Lee and Plimley received grievances and complaints 6 from inmates about those conditions. In addition, given the Complaint's allegation 7 that the prisoner population at Green Haven was at the maximum for the facility, it 8 permits a reasonable inference that Lee and Plimley must h a ve known that their 9 c losing of one o r more yards was causing overcrowding in the yards that remained 10 o pen, even as the accumulating snow and ice, which they refused to have cleared, 11 w as c onstricting that space. These allegations are ample to give Lee and Plimley fair 12 notice as to th e n a ture of McCray's claims and the basis for his assertion that their 13 a damant refusal to have any y a rd s c l ea red of snow and i ce for the entire Winter 14 r esulted fr om their deliberate indifference to inmates' constitutional rights t o a 15 meaningful opportuni ty for physical exercise. 16 Finally, we disagree with the district court's alternative ruling that even 17 i f the Complaint stated a c ause of action for denial of a meaningful opportun i ty for 18 p hy si c a l e x e r c i se in v i o l a ti o n o f the E i ghth A mendment, defendants w o u l d b e e nti tl e d 181 t o d i sm i s s a l on the ground of qualified immunity. Qualified immunity shields 2 o fficials "from liability for c ivil damages insofar as their c onduct does n o t v i o l ate 3 c learly established statutory or constitutional rights of wh i ch a reasonable person 4 w ould have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); s ee generally Tellier 5 v . Fie l ds , 2 8 0 F .3d 69, 8 4 (2d Cir. 2000) (such clarity may be established by decisions 6 o f the Supreme Court or of the appropriate circuit). 7 The operatio n o f the "clearly established" standard "depends 8 subs tantially upon the level of generality a t which the relevant 'legal rule' is to be 9 i d entified." Anderson v. Creighton , 4 83 U .S. 635, 639 (1987). To d eny qua lified 10 i mmunity, "[t]he contours of the right must be sufficiently clear that a reasonable 11 o fficial w o ul d un derstand that what he i s doing v i olates that right." Id . at 640. But 12 this d oes "not" mean that th e o fficial e njoys immunity "unless the very action in 13 question has previously been held unlawful." Id . 14 In this Circuit the rights of prisoners to a meaningful o pportunity for 15 physical e xercise had b een clearly established nearly three decades before the events 16 o f which McCray complains: 17 In 1985, in Anderson v. Coughlin , . . . we described the ri ght t o 18 exercise in unequivocal term s, stating that "[c]ourts have 19 recognized that some opportunity for exercise must b e afforded t o 191 prisoners." 757 F.2d 33, 35 (2d Cir. 1985) . . . . 2 W

i lliams , 97 F.3d a t 704 (emphasis in Williams ); see, e.g. , Paul v . LaValley, 712 F. App'x 3 78, 79 (2d Cir. 2018) ("we hav e h el d th a t this r ight" o f prisoners to have "some 4 o pportunity for exercise . . . was clearly established for qualified i mmunity purposes 5 b yno later than 1985" (internal quotation marks omitted)). 6 In McCray I , the court acknowledged that Anderson v. Coughlin is the law 7 in the Circuit. However, th e d istrict court d e fined the right to a meaningful 8 o pportunity for physical exercise at an unduly narrow level of specificity, stating that 9 d efendants here would be entitled t o qualified immunity " because there is no c learly 10 e stablished constitutional r i ght to a prison yard without naturally accumulating ice 11 o r snow during winter months." McCray I , 2018 WL 1 620976, at *10. But the right t o 12 a meaningful opportunity for physical exercise is not confined to a particular season; 13 a lth ough n o t constant, the right is ongoing. The right need not be described with 14 specific references to the weather or characteristics of the seasons of the year in order 15 for a reasonable prison official to understand that cl i m atic features may necessitate 16 r esponsive measures to e nsure that the right to a meaningful o pportunity for physical 17 e xercise not be denied. 18 In sum, we conclude that McCray's Eighth Amendment d amages c l aims 201 for denial of physical exercise, at least as against Lee and Plimley, should not have 2 b e en d ismissed. Because it is unclear from the Complaint whether McCray intended 3 t o assert his denial-of-exercise claim also a gainst Kutz, that issue should be explored 4 f urther by the d istrict court on remand, including through a p oten ti al request that 5 M c C ray, in order to avoid entry of a Rule 12(b)(6) dismissal of that claim as to Kutz, 6 a mend the Complaint to state facts showing the plausibility of such a claim against 7 Kutz. 8 In l i ght o f the r e instatement o f the E ighth Amend ment d e ni a l

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- e x e r c i se 9 c l a i ms, w e a l so v a c a te the d i str i c t c ourt's d e cision t o decline supplemental ju r i sd i c ti o n 10 o ver McCray's state-law claims. Those claims are reinstated against all defendants.

11 B . The Slip-and-Fall Claims 12 We affirm the d ismissal of so much of the Complain t as seeks r elief o n 13 the b asis that the combination of the slippery c onditions in the r ecreation yards and 14 Kutz's order that McCray go into the yard on February 20, 20 1 4, violated McCray's 15 r ights under the E ighth Amendment. When a prisoner asserts a c laim predicated o n 16 an unsafe condition, the court must determine "whether so c i e ty c o nsi d e r s the r i s k tha t 17 the prisoner c omplains of to be so grave that i t vi o l a tes c o ntemporary standards o f

211 d ecency to e xpose anyone unwillin g l y to s uch a risk." Helling v. M cKinney, 509 U.S. 2 2 5, 36 (1993) (emphasis in original). "In other w ords, the prisoner must show that the 3 r isk of which he complains is not one that t oday's society chooses to tolerate." Id . As 4 the district court noted, M cCray's Complaint did not make any c laims o f exceptional 5 c ircumstances that would elevate the Green Haven yard conditions bey o n d the 6 typical level of danger presented by a slippery sidewalk or a wet floor. We affirm the 7 d ismissal of these claims substantially for the reasons stated by the court in McCray I .

8 C . Other Matters 9 On a ppe a l, M c C r ay ha s c o nte nd e d tha t d e fe nd ant s' r e f u sa l t o have Gr e e n 10 Haven's recreational yards cleared of snow and ice in the Winter of 2014 also violated 11 the terms of a consent decree entered in 1985. In connection with this contention, he 12 has filed several motions in this Court: a m otion to enforce the decree and hold 13 d efendants in contempt fo r nonpe r fo rmanc e, a mo ti on fo r ju d i c i a l no tice of a Supreme 14 C ourt ruling a s to a possible defense against such a motion for contempt, a motion for 15 l e ave to reply to d efendants' opposition t o his motion for judicial notice, and a motion 16 for a writ of sequestration. 17 The contention that defendants have failed to comply with a consent 221 d ecree is not pleaded in the Complaint and was not raised in the d istrict court. It is 2 not properly before u s, and w e decline to address it. McCray's motions, to the extent 3 not previously ruled o n, are denied.

4 CONCLUSION

5 We have considered all of the pa rti es ' a rguments in support o f their 6 r espective positions o n this appeal and have found them to be without merit e xcept 7 t o the extent indicated above. F or the reasons stated above, th e j ud g m en t o f the 8 d istrict court i s v acated insofar as it (a) dismissed McCray's claims seeking damages 9 under the Eighth A mendment for denial o f a meaningful opportunity for physical 10 e xercise, and (b) declined to exercise supplemental jurisdiction over McCray's state11 l a w claims. The judgment is affirmed to the e x tent that it dismissed c l a i m s for 12 d eclaratory and injunctive relief and claims under the Eighth Amendment for 13 M c C ray's s l ip-and-fall injury. The matter is remanded for further proceedings not 14 inconsistent with this o pinion.

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