Unpublished Disposition, 930 F.2d 29 (9th Cir. 1990)

No. 89-16006.

United States Court of Appeals, Ninth Circuit.

Before TANG and NOONAN, Circuit Judges, and SHUBB,^*  District Judge.

MEMORANDUM^** 

Appellant brought a 42 U.S.C. § 1983 action claiming a violation of his Eighth Amendment rights arising from a 36 day denial of outdoor exercise while he was an inmate on the North Block at San Quentin. The district court granted summary judgment for the defendants on the ground of qualified immunity.

Appellant did not raise the issue of waiver of the sovereign immunity defense in the district court. In general, this court will not consider an issue not raised in the district court except for plain error. See e.g., United States v. Visman, 919 F.2d 1390, 1394 (9th Cir. 1990); 2 Federal Procedure Lawyers Edition, Sec. 3:647 (1981 & Supp.1990).

This court reviews de novo the question of whether the law was clearly established for purposes of a qualified immunity defense. Price, et al. v. State of Hawaii, et al., 1990 WL 209401 (88-15528) (9th Cir. December 26, 1990); Burgess v. Pierce County, 918 F.2d 104, 105 (9th Cir. 1990); Bryant v. United States Treasury Dept., Secret Service, 903 F.2d 717, 719 (9th Cir. 1990).

The district court was not precluded from considering and ruling on appellee's defense of qualified immunity pursuant to Fed. R. Civ. P. 15(b) on two grounds. First, " [w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Fed. R. Civ. P. 15(b). Both parties argued the merits of the qualified immunity defense before the magistrate and the district judge. Thus the district judge reasonably could have concluded that the availability of this defense was tried by implied consent.

Second, even if appellant had properly objected on the ground that the issue was "not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits." Fed. R. Civ. P. 15(b). Appellant was not prejudiced by the introduction of the issue of qualified immunity. The evidence on the question of qualified immunity was also relevant to the issue of penological necessity which was indisputably raised by the pleadings. Therefore, the district court was not precluded from considering whether appellees were entitled to qualified immunity.

"Government officials performing discretionary functions enjoy qualified immunity from civil damages so long as their conduct does not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1989) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Anderson v. Creighton, 483 U.S. 635, 638-39 (1987) and Bryant v. U.S. Treasury Dept. Secret Service, 903 F.2d at 720. " [W]hether an official protected by qualified immunity may be held personally liable turns on the 'objective legal reasonableness' of the action assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. at 639. When trying to overcome the defense of qualified immunity, the plaintiff has the burden of proving that the law was 'clearly established.' Davis v. Scherer, 468 U.S. 183, 197 (1983).

"The Eighth Amendment standard for conditions in isolation, segregation and protective custody cells are no different from standards applying for the general population." Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982). The denial of all outdoor exercise may constitute cruel and unusual punishment absent unusual circumstances. Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979); see also Martino v. Carey, 563 F. Supp. 984, (D. Or. 1983). The inquiry concerning the constitutional adequacy of exercise must proceed from the individual facts of each case. Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984). As the court stated in Toussaint:

Several factors present in Spain combined to make outdoor exercise necessary. The prisoners were in continuous segregation, spending virtually all their time in their cells; their contact with other persons was minimal; they lived in an atmosphere of fear and apprehension; and they were confined under degrading conditions without affirmative programs of training or rehabilitation. We deemed it important that the inmates in question were not temporarily in segregation: they had already been there over four years.

Id at 1492-93 (emphasis added).

In Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980), cert. denied, 451 U.S. 937 (1981), involving a temporary denial of outdoor exercise, this court did not find an Eighth Amendment violation. Hayward involved prisoners who were denied exercise for 30 days during an emergency lockdown. This court found that a lockdown was an unusual circumstance justifying the temporary denial of outdoor exercise. As we explained, "the measure was temporary and plaintiffs here were allowed approximately the minimum exercise mandated in Spain within one month after the imposition of the lockdown." Hayward v. Procunier, 629 F.2d at 603.

Factually, this case appears to fall somewhere between Hayward and Spain. The facts correspond closely to those of Spain except for the significant difference in the duration of the denial of outdoor exercise and the emphasis the Spain Court placed on this fact.¹  In contrast, Hayward bears a closer analogy on the temporary nature of the deprivation but differs in the strength of the justification offered for denying exercise.

The fact that this case falls between two precedents indicates that at the time of the injury of which plaintiff complains, the decisional law had not "clearly established" the right to outdoor exercise on these facts. This court previously has given prison officials some leeway in assessing when less critical needs may be temporarily denied in the interests of prison security or inmate safety. See Hoptowit v. Ray, 682 F.2d at 1259.²  In view of the fine factual distinctions drawn by our decisional law on this issue, it cannot be said the law of the circuit "clearly established" a right to exercise under these circumstances. Measured objectively, it was not apparent that appellees' actions amounted to an Eighth Amendment violation.

Appellant urges the panel to consider the law of other circuits in deciding this issue. However, in this instance, the court is not persuaded that the law of other circuits 'clearly establishes' a violation on these facts. Furthermore, it is not obvious this circuit would follow it even if it did. See, Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir. 1989), cert. denied, --- U.S. ----, 111 S. Ct. 341 (1990) and Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987). For these reasons, we affirm the district court's decision that the defense of qualified immunity bars appellant's action for civil damages.

Because we decide that the appellees were immune from suit on these facts, we do not examine the question whether the "obdurate and wanton" standard of Whitley v. Albers, 475 U.S. 312 (1986) extends to conditions of confinement. See Wilson v. Seiter, 893 F.2d 861 (6th Cir.), cert. granted, --- U.S. ----, 111 S.Ct 41 (1990).

Accordingly the judgment is

AFFIRMED.