FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEWAYNE MCGEE RICHARDSON, 

Plaintiff-Appellant,

v.

D. L. RUNNELS, Warden; M. D.

MCDONALD, Associate Warden; T.

FELKER, Chief Deputy Warden; R.

K. WONG, Captain; D.

BLANKENSHIP, Captain; D.

PEDDICORD, Lieutenant; M. JOCELYN

No. 07-16736 LOPEZ WRIGHT, Lieutenant; D. J.

DAVEY, Sergeant; T. POSCH, D.C. No.

Sergeant; M. ROBERTS, Sergeant;  CV-04-00393-

B. HULBERT, Correctional Officer; MCE/GGH

and J. SANTANA, Correctional OPINION

Officer,

Defendants-Appellees,

and

WAGNER, Appeals Coordinator; D.

JACKSON, Appeals Coordinator; R.

RATH; J. ARCEO, Captain, Appeals

Examiner; N. GRANNIS, Chief

Inmate Appeals,

Defendants. 

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

February 13, 2009—San Francisco, California

Filed January 12, 2010

913
Before: John T. Noonan, Marsha S. Berzon and

N. Randy Smith, Circuit Judges.

Opinion by Judge Noonan

914 RICHARDSON v. RUNNELS
COUNSEL

Cynthia J. Larsen, Sacramento, California; Tara M.

McManiba, Sacramento, California, for the plaintiffappellant.

John W. Riches, II, Sacramento, California, for the

defendants-appellees.

OPINION

NOONAN, Circuit Judge:

DeWayne McGee Richardson appeals the summary judgment entered against him by the district court in his action

under 42 U.S.C. § 1983 against the warden and designated

officers of High Desert State Prison (“HDSP”). Holding that

the defendants offered no evidence to disprove his claim of

racial discrimination governing the prison lockdowns to

which he was subjected, we reverse the judgment of the district court as to the racially-discriminatory lockdowns.

Richardson’s Eighth Amendment claim may also proceed.

We affirm the judgment of the district court as to his claim of

violation of his right to due process.

FACTS

Richardson, an African-American, is serving a life term in

HDSP, a high security California prison, of which the defendants are officials. He was housed in Facility D, which contained high risk prisoners, a number of whom were AfricanAmerican. 

Richardson failed to follow the local rule requiring specific

objections in any oppositions to summary judgment. He did

916 RICHARDSON v. RUNNELS
file a “Statement of Relevant Facts on Lockdowns.” On

appeal, he argues that this statement was sufficient substantive compliance by a pro se plaintiff. The defendants stand on

the rule. Rather than resolve this dispute, we treat as compendious and convenient the defendants’ statement of facts in

their brief on this appeal. We quote:

“On November 30, 2002, a Black inmate committed battery on a correctional officer during the morning yard release on Facility D, Yard 1 (D-1). All

Black inmates on this yard were placed on lockdown status, and programming was suspended pending an investigation into this incident. The investigation revealed that the November 30th attack was

premeditated and a planned assault.

“On December 29, 2002, prison officials received

information about inmates planning assault against

staff at HDSP, and the entire prison was placed on

lock-down status pending investigation, searches,

and further administrative review. The investigation

into this threat indicated that the Black prison gang

known as the Black Guerilla Family (BGF) was

responsible for planning acts of violence towards

staff at HDSP. As a result, approximately 100

inmates determined to be either members, affiliates,

associates, suspected gang sympathizers, or otherwise in communication or contact with the BGF and

their respective cell-mates, including Richardson,

were placed in administrative segregation pending an

investigation in this matter. Shortly thereafter, officials determined that the report relied upon was fabricated by a correctional officer.

“On January 16, 2003, the entire institution,

including those Black inmates placed in administrative segregation on November 30, 2002, resumed

normal programing.

RICHARDSON v. RUNNELS 917
“On January 18, 2003, a correctional officer was

the victim of an assault and an attempted assault by

two Black inmates. Due to the seriousness of this

incident, all Black inmates on D-1 were placed on

lock-down pending an investigation into the incident. On March 5, 2003, the investigation was concluded with the determination that this assault was

an isolated incident. Officials instituted an incremental release, and the Black inmate population on D-1

returned to normal program on March 14, 2003.

“On April 8, 2003, a Black inmate committed battery on two correctional officers resulting in serious

bodily injury, and another Black inmate was determined to be a suspect in the conspiracy to commit

battery on staff. Due to the seriousness of this incident, all Black inmates on D-1 were placed on lockdown pending an investigation into the incident. The

investigation revealed that inmates associated with

the “Crips” disruptive group were responsible for the

batteries, and there was no indication of any tension

or threat between the other Black groups on Facility

D and staff. [ . . . ] On May 29, 3003, the Black

inmate population on D-1 was released from lockdown, with the exception of inmates with a connection to the Crips. On or about August 5, 2003, after

an incremental unlock, the D-1 Crip inmate population was returned to normal programing.

“On June 7, 2003, an incident occurred in the

Facility D dining hall involving Southern Hispanic

inmates. Numerous inmates from all ethnic groups

refused to promptly comply with staff’s orders, and

a subsequent search of the dining hall revealed seven

inmate-manufactured weapons. As a result, all D-1

inmates were placed on lock-down status pending an

investigation into the incident. On June 25, 2003,

normal programing was resumed, except that the

918 RICHARDSON v. RUNNELS
inmates affiliated with the Crips disruptive group,

locked-down as a result of the April 8, 2003, incident, remained on lock-down.

“On August 6, 2003, two separate inmate-oninmate attacks occurred involving the use of inmatemanufactured weapons. One incident involved White

inmates and the second incident involved inmates

associated with the Crips. All D-1 White inmates

and all D-1 Black inmates associated with the Crips,

were placed on lock-down status pending an investigation into these two incidents. The investigation of

the Crip-affiliated inmate incident indicated that this

was an isolated incident between two specific

inmates. After signing an unlock agreement representing their desire for positive programing, all Cripaffiliated inmates were returned to normal program

on August 19, 2003.”

As indicated by the ellipses in the quotation describing the

April 8, 2003 incident, a sentence has been omitted from the

quoted statement of facts. The omitted sentence reads, “Because Richardson’s probation report reflected a Crip membership, he was locked-down whenever the Crip inmate

population was locked-down.” This sentence is cast in doubt

by an Appeal Decision by Chief Deputy Warden Felker

addressed to Richardson, which states: “During an interview

with Lt. Rath, it was explained to you that there was no documentation in your central file that reflects any involvement

with the disruptive group CRIPS. Your recent lock down was

caused by you having a cellmate who is a documented associate of this group. . . . You have since gone to Unit Classification Committee on August 11, 2003, and a complete review

of your file was done. There is a probation report that states

you are an associate and this will not be removed. There is no

corroboration or paperwork that connects you with any prison

gang. Per Facility Captain Wong, your CDC § 12 was updated

and your gang status of being a CRIP has been deleted.”

RICHARDSON v. RUNNELS 919
PROCEEDINGS

Pro se and in forma pauperis on September 15, 2003, Richardson filed his complaint under 42 U.S.C. § 1983 after

exhausting his administrative remedies. In response to his

amended complaint of January 31, 2005, the defendants on

March 1, 2006 moved for summary judgment. Richardson did

not file an opposition. On June 6, 2006, Magistrate Judge

Gregory G. Hollows recommended that the motion be

granted. Richardson filed objections. On August 25, 2006, the

district court vacated the magistrate judge’s findings and recommendations and gave Richardson thirty days to file an

opposition. He did so on September 21, 2006 but did not obey

Eastern District Rule 56-260 requiring a party opposing summary judgment to specify what facts were disputed or admitted. He did file “Plaintiff’s Response to Defendants’ Motion

for Summary Judgment,” setting out his version of the facts

relating to the lockdowns. The district court then adopted in

full the findings and recommendations of Magistrate Judge

Hollows.

Richardson, still pro se, appealed. This court appointed pro

bono counsel to represent him.

ANALYSIS

Race-driven action by State officials. We do not deal with

the unexhausted claims of retaliation. See 42 U.S.C.

§ 1997e(a); McKinney v. Carey, 311 F.3d 1198, 1200 (9th

Cir. 2002) (per curiam) (district court must dismiss a case

without prejudice “when there is no presuit exhaustion,” even

when there is exhaustion while the suit is pending). The facts

presented by the defendants show that, in several instances,

assaults that were believed to be perpetrated or planned by

prisoners who were African-American led to the lockdown of

all African-American inmates in a particular unit of the

prison, among whom was Richardson. The defendants apparently believe that without showing any linkage between the

920 RICHARDSON v. RUNNELS
perpetrators and the prisoners subjected to the lockdown, it

was enough to assume that race alone tied together the perpetrators and the larger group. An assumption of this kind is

grounded on race.

In the course of the oral argument on appeal, this court

explored the existence of this assumption with counsel for the

defendants. The court repeatedly asked why the prison locked

down all the African-Americans in Facility D when only one

or two African-Americans were involved in an incident. This

colloquy ended with this exchange:

The Court: “Okay, but aren’t [prison administrators]

required to come forward with some explanations for

choosing a group instead of another group? Some

explanation?”

Counsel: “I thought the fact that it was, that when it

was, race-based.”

[ . . . ]

The Court: “[The statements made by the administration say] that we locked down black people

because they were black.”

Counsel: “Yes, because the blacks were the ones

who were, who were at risk. These inmates were the

ones creating the security risk.”

The Court: “That, I mean, that is just a flatly racist

statement.” 

Counsel: “Of course it is. This was a race-based

security decision.” 

[1] In February 2005 the Supreme Court announced a

strict-scrutiny standard for racial classifications in prisons,

RICHARDSON v. RUNNELS 921
requiring the government to prove that such measures be narrowly tailored to further a compelling governmental interest.

Johnson v. California, 543 U.S. 499, 505-07 (2005). Defendants argue that at the time of the lockdowns, the reasonableness standard applied. Johnson v. California, 321 F.3d 791,

798-99 (9th Cir. 2003). We are now addressing only the constitutional issue as no qualified immunity question is before

us, so the Supreme Court’s 2005 Johnson decision is the relevant precedent. We note that even under the weaker standard,

which may govern the qualified immunity question, the assertion that it was sufficient for prison officials simply to believe

there to be a link between an individual incident perpetrated

by one or two inmates, and the risk of violence from all the

African-American prisoners in Facility D, with no evidentiary

basis whatever indicated for that belief, falls short. 

[2] Moving for summary judgment, the defendants had the

burden of showing that on undisputed facts, they were entitled

to prevail. See Fed. R. Civ. P. 56; Ellison v. Robertson, 357

F.3d 1072, 1075 (9th Cir. 2004) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986)). In this case, under

Johnson, the defendants had to show that reasonable men and

women could not differ regarding the necessity of a racial

classification in response to prison disturbances and that the

racial classification was the least restrictive alternative (i.e.,

that any race-based policies are narrowly tailored to legitimate

prison goals). See Johnson, 543 U.S. at 505. They have failed

to carry this burden on Richardson’s equal protection claim,

as they have made no evidentiary showing at all concerning

the basis for regarding all African-Americans as a security

risk when one or a few African-American inmates are responsible for an assault. 

Cruel and unusual punishment by State officials. Richardson claims deliberate indifference by officials to his need for

exercise and therefore a violation of the Eighth Amendment.

The test is that “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be

922 RICHARDSON v. RUNNELS
aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also

draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). If the prison allots a standard number of hours per

week for exercise, the prison officials are aware that denial of

this exercise for a substantial period creates an excessive risk

to a prisoner’s health. Allen v. Sakai, 48 F. 3d 1082, 1088 (9th

Cir. 1995). 

[3] In their brief, the defendants concede that “exercise is

one of the basic human necessities protected by the Eighth

Amendment.” The defendants further concede that the constitutional adequacy of the exercise provided depends upon “the

individual facts of each case.” The defendants observe that a

thirty-day emergency lockdown has been held not to violate

the Eighth Amendment. Hayward v. Procunier, 629 F.2d 599,

603 (9th Cir. 1980). The cumulative total of the lockdowns

here, however, amounts to much more than thirty days. Indisputably, prison officials have, and must have, discretion to

deal with disruption and they deserve deference in their exercise of this discretion. Bell v. Wolfish, 441 U.S. 520, 547

(1979); Norwood v. Vance, 572 F.3d 626, 629-30 (9th Cir.

2009). But the facts justifying the exercise of discretion

remain to be established at trial. 

In Norwood, we considered a similar Eighth Amendment

claim and noted the context-sensitive nature of this type of

claim. Norwood is not controlling in this appeal because it

was decided under the rigorous and defendant-friendly rules

of qualified immunity. See id. at 633. Here, we do not reach

qualified immunity because the issue has never been

addressed by the district court. Schneider v. County of San

Diego, 28 F.3d 89, 93 (9th Cir. 1994) (declining to reach

qualified immunity where “[t]he district court granted summary judgment without reaching the immunity issues”

because they “should be addressed in the first instance by the

district court”). Nonetheless, as in Norwood, claims involving

RICHARDSON v. RUNNELS 923
a prisoner’s right to exercise require a full consideration of

context, and thus a fully developed record. 

[4] Due process. Richardson focuses on his administrative

segregation as a result of his suspected involvement with the

Black Guerilla Family. California Code of Regulations Title

15 §§ 3335 and 3336 create a liberty interest in freedom from

arbitrary segregation. Toussaint v. McCarthy, 801 F.2d 1089,

1097-98 (9th Cir. 1986). To deprive Richardson of his liberty

by segregation required an informal hearing in which he was

informed of the charge and allowed to present his views. Id.

at 1100-01. Such a hearing was not held. 

[5] The defendants respond by arguing as if Richardson

alleged that all the lockdowns denied him due process. But

that is to exaggerate his claim. The defendants offer no explanation for Richardson’s segregation from January 1 to January

16, 2003. But it would be difficult to conclude that this extra

deprivation of liberty, arbitrary as it was, “impose[d] atypical

and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,

484 (1995). We affirm the judgment on this claim. 

The judgment of the district court on Richardson’s claim of

a violation of due process is AFFIRMED. The district court’s

judgment on his equal protection and Eighth Amendment

claim is REVERSED. The case is REMANDED for trial. 

Each party shall bear its own costs on appeal. 

924 RICHARDSON v. RUNNELS