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See Order and Findings and Recommendations, filed on January 5, 2006 at pp. 1-2. (The 1

Findings and Recommendations were adopted by Order, filed on March 2, 2006).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SANTIAGO SOTO, 

Plaintiff, No. CIV S- 04-0571 FCD GGH P

vs.

WARDEN D. L. RUNNELS, 

Defendant. FINDINGS AND RECOMMENDATIONS

 /

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. §

1983. Pending before the court is defendant’s motion for summary judgment, filed on October

17, 2005, to which plaintiff filed an opposition on November 2, 2005.

Complaint

As set forth in a prior filing by the court, plaintiff, who sues only for prospective 1

injunctive relief, alleges that the implementation of “Op. 1” on April 29, 2002, by the defendant

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 Although plaintiff initially named T. Felker as the defendant, ascribing the prison 2

policies at issue to him, as he sues only for prospective injunctive relief, the court substituted in 

the name of the current Warden of High Desert State Prison. See Order filed on July 14, 2004,

fn. 1.

2

warden resulted in two unconstitutional policies in violation of the Eighth and First 2

Amendments: one, compelling High Desert State Prison (HDSP) inmates, including plaintiff, to

choose between outdoor exercise and law library access; the other, limiting prisoners’ weekly

outdoor exercise to from zero to three hours per week. Form Complaint, p. 8;Attachment, pp. 3-

6. 

Plaintiff seeks relief in the form of a declaratory judgment that defendant’s

policies violate plaintiff’s Eighth Amendment rights and in the form of an order requiring

defendant to implement a policy that allows at least 10 hours a week of outdoor exercise and a

policy that provides for law library exercise at times/days not allotted for outdoor exercise. Form

Comp., p. 8, Attachment, pp. 5-6. 

Motion for Summary Judgment

Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set

forth in Fed. R. Civ. P. 56(c) is met. “The judgment sought shall be rendered forthwith if . . .

there is no genuine issue as to any material fact, and . . . the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party 

always bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of “the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,” which it believes

demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct., 2548, 2553 (1986). “[W]here the

nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary

judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers

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to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered,

after adequate time for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial. See id. at 322, 106 S. Ct. at 2552. “[A] complete

failure of proof concerning an essential element of the nonmoving party’s case necessarily

renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be

granted, “so long as whatever is before the district court demonstrates that the standard for entry

of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323, 106 S. Ct. at 2553. 

If the moving party meets its initial responsibility, the burden then shifts to the

opposing party to establish that a genuine issue as to any material fact actually does exist. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356

(1986). In attempting to establish the existence of this factual dispute, the opposing party may

not rely upon the allegations or denials of its pleadings but is required to tender evidence of

specific facts in the form of affidavits, and/or admissible discovery material, in support of its

contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11,

106 S. Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is

material, i.e., a fact that might affect the outcome of the suit under the governing law, see

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986); T.W. Elec.

Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the

dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the

nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party

need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary

judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

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genuine need for trial.’” Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (quoting Fed. R. Civ. P.

56(e) advisory committee’s note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,

477 U.S. at 255, 106 S. Ct. at 2513. All reasonable inferences that may be drawn from the facts

placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S.

at 587, 106 S. Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the

opposing party’s obligation to produce a factual predicate from which the inference may be

drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

party “must do more than simply show that there is some metaphysical doubt as to the material

facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct.

1356 (citation omitted).

On August 26, 2004, the court advised plaintiff of the requirements for opposing a

motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154

F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v.

Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

Discussion

Defendant moves for summary judgment as a matter of law, contending that

Operational Procedure No. 1 at High Desert State Prison (HDSP) (which plaintiff identifies as

“Op. 1,” and which the court will hereafter abbreviate as “OP No. 1”) does not, as plaintiff

alleges, compel plaintiff to choose between outdoor exercise or accessing the law library. 

Motion for Summary Judgment (MSJ), pp. 3-4. Moreover, defendant argues that plaintiff has

suffered no injury as a result of failing to obtain law library access and therefore fails to allege a

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 Defendant’s Exh. A includes the abstract of judgment for plaintiff’s commitment as well 3

as his subsequent chronological history within the CDC (now CDCR). 

5

violation of the First Amendment. Id., at 4. With respect to plaintiff’s claim that Op. No. 1

limits his access to the yard to between zero to three hours per week in violation of his Eighth

Amendment rights and his demand for ten hours a week of outdoor exercise, defendant argues

that no evidence supports his claim that he is being so limited; that there is no constitutional

requirement that he receive ten hours weekly of outdoor exercise and that Op. No. 1 is reasonably

related to a legitimate penological interest. MSJ, pp. 7-11. 

It is important at the outset of this discussion to reiterate that the complaint

challenges only the policies listed above. Plaintiff does not allege in the complaint that the

policies as applied do not in practice give inmates even the levels of exercise set forth in the

policies, and therefore establish further violations of the Constitution, although he appears to take

that tack in several places in the opposition to summary judgment. The purpose of the complaint,

of which plaintiff is master, is to apprise defendants of the claims which will be made and for

which an answer and defense prepared. Plaintiff may not, by way of opposition to summary

judgment, expand his claims into areas not fairly encompassed by the complaint. A de jure

attack on stated policies is one thing, and an overall attack of de facto events is quite another –

the latter being very fact intensive. Moreover, plaintiff must exhaust administrative remedies and

there is no suggestion that the de facto attack was ever submitted to prison officials. Therefore,

this Findings and Recommendation will confine itself to the issues stated in the complaint. 

Defendant sets forth Undisputed Material Facts (DUDF), the following of which

are, in fact, not disputed by plaintiff:

1. At all times relevant to this action, Plaintiff Santiago Soto was

an inmate in the custody of the California Department of

Corrections and Rehabilitation (CDCR), housed at the

High Desert State Prison (HDSP) in Susanville, California.

Defendant’s Exhibit (DX) A, pp. 1-5. Soto has been an inmate in 3

the custody of the CDCR since May 17, 1996. Soto has been an

inmate at HDSP since April 17, 2000. Since his arrival at HDSP,

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Soto has been housed on the following yards: D Facility from April

17, 2000 to March 23, 2001; C Facility from March 23, 2001 to

April 10, 2002; D Facility from April 10, 2002 to May 26, 2002; C

Facility from May 26, 2002 to May 19, 2004. On May 19, 2004,

Soto was moved back to D Facility where he currently remains.

Soto was briefly housed in administrative segregation from April

10, 2002 through May 26, 2002, and again from May 19, 2004

through June 17, 2004. With the exception of these two times, Soto

has been in the general population during the relevant time period.

Decl. of D. Runnels, ¶¶ 5-6.

2. At all times relevant to this action, Defendant Runnels was the

Warden at HDSP. Declaration of D. Runnels In Support of Motion

for Summary Judgment, ¶1.

3. Operational Procedure (OP) No. 1, was implemented on April

29, 2002. The OP No. 1 deals with inmate count, movement,

feeding and work release. The OP No. 1 sets a schedule for inmate

movement for the various facilities. The HDSP OP No. 1 is now

the HDSP Departmental Operations Manual (DOM) Supplement

52020. Decl. of D. Runnels, ¶¶ 4, 8.

4. There are five facilities (also referred to as “yards”) at HDSP.

These are facilitiesA, B, C, and D and E. Facilities A and B are a

270 design facilities. Facilities C and D are a 180 design facilities.

Facility E is a level one minimum support facility. Decl. of D.

Runnels, ¶ 8.

5. The manner in which inmates are released for various activities

throughout the day such as meals, showers, job assignments,

classification committees, and outdoor recreation depends on

various factors. These factors include the inmates’ work group and

privilege group, institutional count, as well as the needs of the

facilities. Furthermore, there is a fixed number of daylight hours

during which certain programs, such as yard, can be safely run.

Decl. of D. Runnels, ¶ 9.

6. Every able bodied person committed to the custody of the

Director or Corrections is obligated to work as assigned by

department staff and by personnel of other agencies to whom

the inmate’s custody and supervision may be delegated.

Assignment may be to a full day of work, education, or other

program activity, or to a combination of work and education or

other program activity. Cal. Code Regs. tit. 15, § 3040(a). In

accordance with this provision of the title 15, inmates are classified

and assigned to one of the various work and privilege groups. The

various work group/privilege groups are: A2/B, A1/A unassigned,

and A1/A on RDO, A1/A assigned. Decl. of D. Runnels, ¶ 10.

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Access to Outdoor Exercise

7. Inmates classified as A2/B, A1/A unassigned, and A1/A on

RDO receive the following number of hours of “outdoor exercise,”

(hours released to the yard for recreation) Monday through Friday

on a rotating week:

Week One - 4.5 to 5 hours per week;

Week Two - 6.75 to 7.25 hours per week;

The inmates in the above classifications receive no hours on

Saturdays, Sundays and Holidays. Decl. of D. Runnels, ¶ 11.

8. Inmates classified as A1/A assigned, receive the same time as

the group above, depending on their work schedule. On Saturdays,

Sundays, and Holidays, A1/A assigned inmates receive 2.25 hours

per day, except for the A1/A inmates assigned to the in-cell

education bridging program who receive 4.5 hours per weekend

day and Holiday because they do not normally receive yard during

the week because of their work hours which are 0730 to 1530

hours, Monday through Friday. Decl. of D. Runnels, ¶ 11.

10. Facilities C and D, which is where Soto has been housed while

at HDSP, are 180 design facilities which house level IV inmates

(maximum security inmates). These facilities are each divided into

8 buildings, 1 through 8. Each building is further divided into three

sections, A, B, and C. Each section is separated by a concrete wall.

Buildings 1 through 4 are referred to as the “lower yard.” Buildings

5 through 8 are the “upper yard.” There are approximately 128

inmates in each building. The lower yard shares one recreational

yard and the upper yard shares a separate recreational yard. Decl. of

D. Runnels, ¶¶ 12-13.

12. In addition, many inmates have jobs or academic or vocational

programs that they are released to in the mornings. Others are

released to the sick call line, the pill line, or the insulin line.

Accordingly, there would be a great deal of traffic in and out of the

housing units if all these things were done at once. Decl. of D.

Runnels, ¶15.

13. To alleviate the traffic and maintain order, inmates are released

to their various programs and activities at different times

depending on a set schedule. Decl. of D. Runnels, ¶ 16.

14. Pursuant to the schedules set in the OP No. 1, two hours and

fifteen minutes are scheduled for outdoor yard time in the

mornings and two hours and fifteen minutes are scheduled

for outdoor yard time in the afternoons. Since the lower yard

consists of four buildings, each divided into three sections, and the

upper yard consists of four buildings, each divided into three

sections as well, it is not possible to release all buildings to the

yard at the same time. Accordingly, inmates do not get five hours

of outdoor yard time per day. Rather, buildings rotate pursuant to

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the Facility Yard Schedule. Decl. of D. Runnels, ¶ 17.

18. On alternating weeks, Soto receives on average three days of

outdoor exercise one week and two days the following week.

Exhibit B, Plaintiff’s Deposition, 20:5-9. Soto has suffered no

physical injury as a result of inadequate exercise. Exhibit B,

Plaintiff’s Deposition, 22:18-22.

19. Inmates are not necessarily confined to their cells when not on

the yard for outdoor recreation. Inmates are released from their

cells for work, education, classification committees, medical, and

various other activities. They also have access to the day room on

their non-yard days. Decl of D. Runnels, ¶ 19.

Access to the Law Library

20. The DOM Supplement 53060 addresses law library access. In

accordance with the DOM supplement, the facility libraries operate

according to the posted schedules. Schedules are set taking into

consideration all programs such as work and education, meals,

committees, showers, and recreation, and they take staffing issues

into consideration as well. Institutional circumstances may alter

library access per safety and security needs. Decl. of D. Runnels, ¶

20.

21. Facilities C and D each have their own law library and hours of

operation. Decl. of D. Runnels, ¶ 22.

22. The C Facility Law Library has the following hours of

operation: Tuesday - 7:30 a.m. to 9:30 a.m.; 9:45a.m. to 11:45

a.m.; and 1:00 p.m. to 2:45 p.m. Wednesday - 7:30 a.m. to 9:30

a.m.; 9:45a.m. to 11:45 a.m.; and 1:00 p.m. to 2:45 p.m.

Thursday - 7:30 a.m. to 9:30 a.m.; 9:45a.m. to 11:45 a.m.; and 1:00

p.m. to 2:45 p.m. Friday - 7:30 a.m. to 9:30 a.m.; 9:45a.m. to 11:45

a.m.; and 1:00 p.m. to 2:45 p.m. Saturday - 8:00 a.m. to 10:00 a.m;

10:15 a.m. to 11:45 a.m.; and 1:00 p.m. to 2:45 p.m. Decl. of D.

Runnels, ¶ 22.

23. The D Facility Law Library has the following hours of

operation: Tuesday - 8:30 a.m. to 10:30 a.m.; and 12:30 p.m. to

2:30 p.m. Wednesday - 8:30 a.m. to 10:30 a.m.; and 12:30 p.m. to

2:30 p.m. Thursday - 8:30 a.m. to 10:30 a.m.; and 12:30 p.m. to

2:30 p.m. Friday - 8:30 a.m. to 10:30 a.m.; and 12:30 p.m. to 2:30

p.m. Saturday - 8:30 a.m to 10:30 a.m.; and 1:00 p.m. to 3:00 p.m.

Decl. of D. Runnels, ¶ 22.

24. In order to access the law library, an inmate must complete a

law Library Access Request form and submit it to the law library

by giving it to his Building Floor Officer who will take all

completed law library access request forms to the Program Office

or give them directly to the Library Technical Assistant (LTA). The

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 Although defendant sets forth as an undisputed fact that OP No. 1 specifically forces 4

inmates to have to choose between yard or the law library “at all times,” in both the defendant’s

declaration and the separate statement, it is clear by the memorandum of points and authorities,

that defendant meant to state, within DUDF No. 27, that the policy does not compel inmates to

have to choose one or the other activities all the time. Defendant also, at another point,

apparently inadvertently, states: “There are no facts which could not lead a rational trier of fact to

find for Plaintiff.” MSJ at p. 5. 

9

LTA picks up all completed Law Library Access Request Forms

from the Program Office on a daily basis. The LTA then submits a

list based on these requests to the Inmate Assignment Office (IAO)

for ducating. All inmates requesting access will receive a ducat

noting the date and time to report to the Law Library. Decl. of D.

Runnels, ¶ 23.

25. Inmates may access the law library based on the following

priorities. Inmates with verifiable court case deadlines, Priority

Legal Users, have first priority in order of imminence. Inmates

doing legal research, or General Legal Users, have second priority.

Last are inmates requesting recreational reading. Decl. of D.

Runnels, ¶ 24.

26. The Law Library cannot accommodate all inmates at once.

There is a limit of 12 inmate users and three clerks in the Law

Library at any time. This is due to the size and capacity of the Law

Library and the number of staff assigned to the Law Library. This

serves to preserve the safety and security of the institution,

inmates, and staff. Too many inmates in the Law Library at one

time can cause disruptions which are more difficult to control than

if a smaller number of inmates are allowed. Decl. of D. Runnels, ¶

25.

27. It may happen at times that an inmate is “ducated’ to go to the

law library during the time that he is scheduled to go to the yard. In

that event, the inmate must make a choice. However, OP #1,

DOM Supplement 52020, does specifically [sic] schedule yard

time so as to force the inmates to have to choose between one of

the two activities at all times. Decl. of D. Runnels, ¶ 26. 4

28. Soto has never missed a court deadline because of a lack of

access to the law library. Exhibit B, Plaintiff’s Deposition, 20:23-

25.

Defendant’s Separate Statement of Undisputed Facts.... (DUDF), pp. 2 - 7.

Plaintiff’s premise about a Hobson’s choice commences with an implicit

misimpression – that he is entitled on a continuing basis to utilize the maximum number of law

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library hours permitted by the policies, and therefore, if he does so, such law library use sets up

an inherent conflict with utilization of policy granted exercise time. Plaintiff is not

constitutionally entitled in the abstract to use a maximum amount of law library time. Moreover,

even if, at times, plaintiff’s use of the law library may be intensive enough to foreclose allotted

exercise time, plaintiff faces no more a difficult temporary choice than do people everywhere,

i.e., a person’s duties or obligations sometimes preclude utilization of otherwise desired

recreation time. This is life, not an Eighth Amendment violation.

Nor is the undersigned’s conclusion ultimately contrary to plaintiff’s cited case of

Allen v. City and County of Honolulu, 39 F.3d 936 (9th Cir. 1994), a case which held that a

prisoner did not have to sacrifice a right of access to the courts in order to get exercise, or vice

versa. The Allen case was decided prior to the seminal case on access to the courts – Lewis v.

Casey, 518 U.S. 343, 116 S. Ct. 2174 (1994). Allen viewed the access to the courts issue as one

of fundamental proportion, and nearly unlimited with respect to provision of law library time,

citing Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977). However, Lewis greatly retracted

the prisoner’s access to the courts insofar as a violation of such access could only be shown if

plaintiff suffers an actual injury from lack of law library access. It is no longer sufficient to posit

a hypothetical conflict between maximum possible, continuous utilization of the law library for

whatever purpose and potential exercise time. Plaintiff herein has posited no such actual injury. 

That is, he has not raised an issue of fact that the policies at issue here caused him to sacrifice

exercise time over a lengthy period in order to avoid an actual, imminent legal injury. Indeed,

after Lewis, such a showing would be very difficult. See also Cornett v. Donovan, 51 F.3d 894,

898 (9th Cir. 1995) (right of access to a law library extends only to the pleading stages of a

lawsuit). Generally, the pleading stages of a lawsuit do not extend over a period of time such

that continuous and long term access to the law library is required. Thus, plaintiff has not

demonstrated any actionable conflict between law library usage and exercise time post-Lewis. 

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 It is odd, even somewhat jarring, that plaintiff refers to himself in the third person, at 5

least throughout the deposition excerpt defendant has submitted; for example, in the excerpt that

includes testimony used as support for DUDF No. 28, the exchange reads: “Q. ‘Have you ever

missed a court deadline because of a lack of access to the law library?’ A. ‘He hasn’t lost a

deadline. These last 12 days he’s been trying to get into the library to make copies of a habeas

corpus petition that he would like to submit, but he says he hasn’t been able to access the library.’

Q. ‘Do you expect to be able to access the library eventually to file this habeas corpus petition?’

A. ‘Yes. Eventually, yes.’ Q. ‘Other than the habeas corpus petition, is there any other legal

action you have not been able to take because of the limited law library access?’ A. ‘No.’” Exh.

B., 20: 23-25 through 21:1-11. As defendant’s counsel has put “Gracias” on the record more

than once in the deposition, the most logical explanation is that plaintiff testified in Spanish and

an interpreter translated for plaintiff, feeling it necessary to modify the more extended responses

from the first person to the third person voice, apparently to reflect that the testimony in English

was a translation. 

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In his deposition, as defendant notes, plaintiff conceded that he has not been

precluded from meeting a court deadline, or suffered any actual injury in relation to the court

access he has had, by implementation of OP No. 1. Defendant’s Undisputed Material Fact

(DUDF) No. 28, Exhibit (Exh.) B, Plaintiff’s Deposition (P Depo), 20:23-25. Moreover, in his 5

opposition, he expressly states that “plaintiff has never alleged that OP No. 1 interferes with his

right of access to the courts.” Opp., p. 7. Plaintiff also concedes that every inmate with a court

deadline is accorded priority over general legal users, with recreational law library users coming

last, and he does not challenge that policy. Opp., p. 5. He even calls the existing law library

policy “a perfect way to classify library users....” Id. 

As plaintiff alleges no actual injury in connection with the policy at issue,

defendant is entitled to judgment as a matter of law on any claim by plaintiff that his rights under

the First Amendment to access the courts have been violated under defendant’s OP No. 1 policy. 

Plaintiff frames his claim as one wherein he is compelled by the policy to choose between one

constitutionally guaranteed right (under the Eighth Amendment) (right to adequate outdoor

exercise) in order to exercise another (under the First Amendment) (right of access to the courts),

and that OP No. 1 does not infringe on his right of court access only because he forgoes outdoor

exercise for law library exercise. Opp., pp. 7 - 8.

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However the claim is characterized, because plaintiff concedes that he has not

suffered any First Amendment injury, on account of the policy, and importantly has set forth no

facts which demonstrate that he avoided an “actual legal injury” by sacrificing exercise time over

a lengthy period on account of the policies at issue, this matter proceeds only on his claim of a

violation of the Eighth Amendment, on the more narrowed basis that the policy deprives, or

potentially deprives, him only of adequate outdoor exercise. Plaintiff attempts to place in dispute

the following facts that defendant has set forth as undisputed: 

9. The reasons for the set schedules and the limits on the numbers

of hours inmates can have access to the yard are not only

legitimate, but compelling in order to preserve the safety and

security of the prison at all times. Decl. of D. Runnels, ¶ 12.

11. It is not possible, nor is it prudent to release all inmates in the

lower yard or the upper yard at the same time. That would place

over 500 inmates on each yard at once. For obvious security

reasons, that cannot be done. It is extremely difficult to supervise a

group which consists of 500 inmates as opposed to a group which

consists of 128 or less. For example, if a fight or riot was [sic] to

break out on the recreational yard, it would easier to control 128

inmates and to restore order. Decl of D. Runnels, ¶ 14.

15. On Monday through Friday, Facilities C and D yards run from

9:15 to 11:30 in the morning and again from 1:00 to 3:15 in the

afternoon. See, Attachment A to Decl. of D. Runnels, Schedule of

Facility C Inmate Movement Monday through Friday and Schedule

of Facility D Inmate Movement Monday through Friday.

16. On Saturday, Sundays, and Holidays, Facilities C and D yards

run from 8:15 to 11:30 in the morning and again from 12:30 to

3:30 in the afternoon. See, Attachment A to Decl.of D. Runnels,

Schedule of Facility C Inmate Movement Saturday, Sunday, and

Holidays and Schedule of Facility D Inmate Movement Saturday,

Sunday, and Holidays.

17. Nonetheless, over a two-week time period, inmates average

between 11.25 and12.25 hours of outdoor yard time. Decl. of D.

Runnels, ¶ 18.

Plaintiff avers that upon his arrival at HDSP in April, 2000, and for about two

years thereafter, he and the rest of the general population inmates received from 10 to 12 hours of

outdoor exercise per week, with yard access beginning at 9:00 a.m. and ending at 1:15 p.m.

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(plaintiff does not specify the days of the week for this schedule). Opp., p. 2. As of April 2002,

when the new policy was implemented, the hours were reduced to 4 hours and thirty minutes for

one week, followed by 6 hours and 45 minutes the following week. Opp., p. 2, see also, DUDF

No. 7. 

Plaintiff argues that inmates are scheduled to access the law library on their

outdoor exercise days; forcing them to give up outdoor exercise time in order to go to the library

(or the reverse). Plaintiff filed grievances about what he calls the two policies, which were

rejected as untimely. (Unnumbered) Exhibits to Opp., p.2. Plaintiff also contends that it is

prison staff practice to cancel outdoor exercise for a variety of reasons, including staff shortages,

staff training days, officers’ funerals and incidents occurring at other facilities. Opp., p. 2. He

alleges that, for example, on October 24, 2005, outdoor exercise (elsewhere he gives this date as

one on which dayroom was cancelled) was cancelled due to an incident at another facility.

Plaintiff takes specific issue with the amount of outdoor exercise currently provided to D-yard

general population inmates, the yard on which he is housed. Opp., p. 3. Plaintiff includes a

number of declarations, in addition to his own, that contradict defendant’s representation as to

the amount of outdoor exercise these inmates are allowed. Id. 

 Plaintiff alleges that during normal programming, “‘open-line’” access to the law

library is called from Tuesday to Saturday while inmates are exercising on the yard, that inmates

are still ducated for the law library on their outdoor exercise days; that defendant admits that

inevitably an inmate will have to choose between the yard and the law library but that this choice

is not occasional but constant. Opp., pp. 5-6. Plaintiff goes to on to contend that defendant’s

statement that because plaintiff goes to the yard for two to three days a week on a rotating

schedule, “[t]hat leaves two to three days during the week during which plaintiff does not have

yard time and during which he may go to the law library” is precisely the relief he is seeking, to

his March 22, 2004 complaint (see p. 6 of attachment to complaint). Opp., pp. 6-7, citing MSJ at

p. 5. Plaintiff contends that defendant could allow inmates to be ducated for library access on

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their non-yard days. Opp., p. 8. He insists that outdoor exercise is already limited to zero to

three hours per week, even though he has earlier stated that the schedule is 4 hours and thirty

minutes for one week, followed by 6 hours and 45 minutes the following week on a rotating

schedule basis. This inconsistency is not explained by the apparent conflict in law library access

because he is saying that even with the law library accommodation he seeks, he would be

reduced to zero to three hours a week. Plaintiff “demands” ten hours a week of outdoor exercise,

stating that the California Code of Regulations establishes that he has a liberty interest in no less

than ten such hours and that OP No. 1 is not reasonably related to a legitimate penological

interest. Opp., p. 8. 

The remainder of plaintiff’s opposition continues in this vein. Although plaintiff

does an impressive job for a pro se incarcerated plaintiff in marshaling various and sundry facts

about de facto lack of exercise, he forgets that his complaint is singularly focused on the exercise

policy(s), not the implementation of that policy. Plaintiff makes little effort to demonstrate that

the exercise policy itself falls below Constitutional minima.

The Ninth Circuit has recognized that exercise is “one of the basic human 

necessities protected by the Eighth Amendment.” LeMaire v. Maass, 12 F.3d 1444, 1457 (9th

Cir. 1993). 

 An Eighth Amendment claim that a prison official has deprived

inmates of humane conditions must meet two requirements, one

objective, and one subjective. Farmer v. Brennan, 511 U.S. 825,

[834,] 114 S. Ct. 1970, 1977 [] (1994). Under the objective

requirement, the prison official’s acts or omissions must deprive an

inmate of “‘the minimal civilized measure of life’s necessities.’”

Id.(quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct.

2392, 2399-2400 [] (1981). The subjective requirement, relating to

the defendant’s state of mind, requires deliberate indifference. 

Farmer, 511 U.S. at [837,] 114 S. Ct. at 1979.

Allen v. Sakai, 48 F.3d 1082, 1087 ( 9 Cir. 1994). th

In Allen v. Sakai, 48 F. 3d at 1088, the court found that a long-term deprivation of

exercise did constitute a denial of a basic human need in violation of the Eighth Amendment

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(prisoner in secured housing allowed only forty-five minutes of outdoor exercise per week for six

weeks violated Eighth Amendment); see also, Lopez v. Smith, 203 F.3d 1122, 1133 & n. 15

(prisoner deprived of outdoor exercise for 45 days constituted cruel and unusual punishment). 

 Earlier, the Ninth Circuit had held that a deprivation of outdoor exercise for a

“period of years” contravenes the Eighth Amendment; however, the court did not consider

whether deprivation of outdoor exercise was a per se violation of the Eighth Amendment. Spain

v. Procunier, 600 F.2d 189, 199-200 (9 Cir. 1979). By contrast, an inmate’s allegation that he th

was not allowed, inter alia, outdoor exercise for 21 days while in the Disciplinary Segregation

Unit did not demonstrate a serious deprivation and deliberate indifference. May v. Baldwin, 109

F.3d 557, 565 (9 Cir. 1997); see also, Hoptowit v. Ray, 682 F.2d 1237, 1258-59 (9 Cir. 1982) th th

(denial of opportunity for regular outdoor exercise violates the Eighth Amendment, but can be

temporarily denied under prison conditions that warrant it); Hayward v. Procunier, 629 F.2d 599,

603 (9th Cir.1980) (deprivation of outdoor exercise and five-month lockdown in response to

genuine emergency – i.e., safety or staffing concerns – did not violate the Eighth Amendment). 

On the other hand, it has been found that deprivation of outdoor exercise for a six-month period

violates the Eighth Amendment: “[d]eprivation of outdoor exercise violated the Eighth

Amendment rights of inmates confined to continuous and long-term segregation.” Keenan v.

Hall, 83 F.3d 1083, 1089-1090 (9 Cir. 1996), citing Spain v. Procunier, 600 F.2d at 199 (“There th

is substantial agreement among the cases in this area that some form of regular outdoor exercise

is extremely important to the psychological and physical well being of the inmates.”). 

At note 15, Lopez, 203 F.3d at 1133, noted the distinction made by the May

Court, 109 F.3d at 565, which found that a temporary denial of outdoor exercise without adverse

medical effects is not a substantial deprivation while recognizing that Allen, 48 F. 3d at 1088,

found a long-term deprivation substantial, regardless of effects. Thus, May supra, distinguished

Allen, supra, at 1088, and Spain, supra, at 199-200, on the basis of the lengthy deprivations set

forth therein, recognizing that confining an inmate to a cell “for less than 24 hours in order to

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encourage compliance with prison security regulations does not rise to the level of deliberate

indifference.” Id. at 566, citing Anderson v. County of Kern, 45 F.3d 1310, 1316 (9 Cir. 1995). th

See also, Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9 Cir. 1984) th

(preliminary injunction upheld requiring outdoor exercise) (cites Wright v. Rushen,642 F.2d

1129, 1133 (9 Cir. 1981)), which compares Spain, requiring outdoor exercise where prisoners th

are confined to small cells twenty-four hours a day, to Clay v. Miller, 626 F.2d 345, 347 (4 Cir. th

1980), which did not require outdoor exercise where inmates had dayroom access 18 hours a day;

Allen v. Sakai, 48 F.3d at 1087-88 (no qualified immunity for outdoor exercise claim). Martino

v. Carey, 563 F. Supp. 984, 100-1002 (D.C. Or 1983) (district court found denial of all

opportunity to exercise, including even in jail cell, violated the Eighth Amendment) (denial of all

outdoor exercise endangers physical and mental health of prisoners). 

As a result of OP1, according to Warden Runnels, prisoners in plaintiff’s

classification receive, on rotating weeks, 4.5 to 5 hours of outdoor exercise and 6.75 to 7.25

hours per week respectively. This is the High Desert policy under attack. However, based on the

cases above, the court cannot find that such a policy violates the Eighth Amendment in terms of

lack of sufficient exercise time.

Accordingly, IT IS HEREBY RECOMMENDED that defendant’s October 17,

2005 motion for summary judgment be granted and judgment be entered for defendant. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, plaintiff may file written

objections with the court. Such a document should be captioned “Objections to Magistrate

Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 7/5/06

/s/ Gregory G. Hollows

 

 GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

GGH:009

soto0571.msj 

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