1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MICHAEL WITKIN, No. 2:22-cv-1211 WBS CSK P 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY 15 PITTSLEY, JUDGMENT 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff Michael Witkin is a former state prisoner 20 proceeding pro se in this action brought under 42 U.S.C. § 1983. 21 Defendant M. Pittsley is a correctional lieutenant at the 22 California Medical Facility, who served as the senior hearing 23 officer in a disciplinary hearing at which plaintiff was found 24 guilty of disobeying an officer’s order to follow COVID-19 25 protection policies during visiting hours. As part of his 26 disciplinary decision, Lt. Pittsley assessed a sixty-day 27 suspension on plaintiff’s recreational yard privileges. 28 1 Plaintiff argues that such action violated his rights under the 2 Eighth Amendment to the United States Constitution to be free 3 from cruel and unusual punishment. (See Docket No. 42.) 4 The matter was referred to a United States magistrate 5 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 6 Both sides filed motions for summary judgment, and on July 25, 7 2025, the magistrate judge filed findings and recommendations 8 herein, recommending that both plaintiff’s and defendant’s 9 motions be denied (Docket No. 24). The findings and 10 recommendations were served on all parties and contained notice 11 to all parties that any objections to the findings and 12 recommendations were to be filed within fourteen days. Defendant 13 filed objections, and on September 15, 2025, plaintiff filed a 14 late reply.1 15 In accordance with the provisions of 28 U.S.C. § 16 636(b)(1)(C) and Local Rule 304, this court has conducted a de 17 novo review of this case, and for the following reasons declines 18 to follow the full recommendation of the magistrate judge. 19 The magistrate judge recommends denying defendant’s 20 motion for summary judgment on the grounds that plaintiff had 21 raised genuine disputes of material fact as to both whether his 22 conditions of confinement violated the Eighth Amendment and 23 whether defendant was entitled to qualified immunity. (See 24 Docket No. 42.) 25
26 1 Plaintiff contends that defendant failed to serve plaintiff with a copy of defendant’s objections. (ECF No. 46 at 27 1.) However, defendant’s objections are accompanied by a certificate of service attesting to service by mail on 28 plaintiff’s address of record. (ECF No. 45 at 10.) 1 However, the Supreme Court has instructed that a court 2 may assume without deciding the existence of a constitutional 3 violation for the purposes of determining whether the official 4 who committed the alleged violation was entitled to qualified 5 immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). 6 Pursuant to that guidance, this court elects not to first answer 7 the question of whether defendant’s conduct which is the subject 8 of this action violated plaintiff’s constitutional rights. 9 Instead, the court proceeds first to address the question of 10 whether, construing the facts in the light most favorable to 11 plaintiff, defendant is entitled to qualified immunity. 12 I. Legal Standard 13 In § 1983 actions, “[q]ualified immunity protects 14 government officials from liability for civil damages insofar as 15 their conduct does not violate clearly established statutory or 16 constitutional rights of which a reasonable person should have 17 known.” Pearson, 555 U.S. at 231 (2009) (citation modified). 18 “The test for qualified immunity is: (1) identification of the 19 specific right being violated; (2) determination of whether the 20 right was so clearly established as to alert a reasonable officer 21 to its constitutional parameters; and (3) a determination of 22 whether a reasonable officer would have believed that the policy 23 or decision in question was lawful.” McDade v. West, 223 F.3d 24 1135, 1142 (9th Cir. 2000). 25 “Once the defense of qualified immunity is raised by 26 the defendant, the plaintiff bears the burden of showing that the 27 rights allegedly violated were ‘clearly established.’” LSO, Ltd. 28 v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). “If plaintiff 1 carries this burden, then the officer[] must prove that [his] 2 conduct was reasonable even though it might have violated 3 constitutional standards.” Romero v. Kitsap Cnty., 931 F.2d 624, 4 627 (9th Cir. 1991). 5 A. Determining What Constitutes Clearly Established Law 6 Whether the unlawfulness of the conduct at issue is 7 clearly established “depends largely upon the level of generality 8 at which the relevant ‘legal rule’ is to be identified.” Wilson 9 v. Layne, 526 U.S. 603, 614 (1999). The Supreme Court’s “cases 10 [have] establish[ed] that the right the official is alleged to 11 have violated must have been ‘clearly established’ in a more 12 particularized, and hence more relevant, sense: The contours of 13 the right must be sufficiently clear that a reasonable official 14 would understand that what he is doing violates that right.” 15 Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Vos v. 16 City of Newport Beach, 892 F.2d 1024, 1035 (9th Cir. 2018) (“The 17 Supreme Court has repeatedly admonished courts not to define 18 clearly established law at a high level of generality.” 19 (quotations omitted)). 20 “This is not to say that an official action is 21 protected by qualified immunity unless the very action in 22 question has previously been held unlawful, but it is to say that 23 in light of pre-existing law the unlawfulness must be apparent.” 24 Anderson, 483 U.S. at 640 (citation omitted). In other words, 25 “[f]or a right to be clearly established, case law must 26 ordinarily have been earlier developed in such a concrete and 27 factually defined context to make it obvious to all reasonable 28 government actors, in the defendant's place, that what he is 1 doing violates federal law.” Shafer v. Cnty. of Santa Barbara, 2 868 F.3d 1110, 1117 (9th Cir. 2017); see also Reichle v. Howards, 3 566 U.S. 658, 664 (2012) (for a right to be clearly established, 4 “existing precedent must have placed the statutory or 5 constitutional question beyond debate.”). 6 “Although the Supreme Court has provided little 7 guidance as to where courts should look to determine whether a 8 particular right was clearly established at the time of the 9 injury,” courts “in the Ninth Circuit begin [their] inquiry by 10 looking to binding precedent.” Hopkins v. Bonvicino, 573 F.3d 11 752, 772 (9th Cir. 2009) (citation modified). “If the right is 12 clearly established by decisional authority of the Supreme Court 13 or this Circuit, [the] inquiry should come to an end.” Id. 14 B. Clearly Established Law Regarding Outdoor Exercise 15 While the Ninth Circuit has decried the deprivation of 16 outdoor exercise in various instances, it has never held that the 17 lack of outdoor exercise for prisoners per se constitutes an 18 Eighth Amendment violation. Although it has held that “some form 19 of regular outdoor exercise is extremely important to the 20 psychological and physical well being of . . . inmates,” Spain v. 21 Procunier, 600 F.2d 189, 199 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MICHAEL WITKIN, No. 2:22-cv-1211 WBS CSK P 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY 15 PITTSLEY, JUDGMENT 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff Michael Witkin is a former state prisoner 20 proceeding pro se in this action brought under 42 U.S.C. § 1983. 21 Defendant M. Pittsley is a correctional lieutenant at the 22 California Medical Facility, who served as the senior hearing 23 officer in a disciplinary hearing at which plaintiff was found 24 guilty of disobeying an officer’s order to follow COVID-19 25 protection policies during visiting hours. As part of his 26 disciplinary decision, Lt. Pittsley assessed a sixty-day 27 suspension on plaintiff’s recreational yard privileges. 28 1 Plaintiff argues that such action violated his rights under the 2 Eighth Amendment to the United States Constitution to be free 3 from cruel and unusual punishment. (See Docket No. 42.) 4 The matter was referred to a United States magistrate 5 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 6 Both sides filed motions for summary judgment, and on July 25, 7 2025, the magistrate judge filed findings and recommendations 8 herein, recommending that both plaintiff’s and defendant’s 9 motions be denied (Docket No. 24). The findings and 10 recommendations were served on all parties and contained notice 11 to all parties that any objections to the findings and 12 recommendations were to be filed within fourteen days. Defendant 13 filed objections, and on September 15, 2025, plaintiff filed a 14 late reply.1 15 In accordance with the provisions of 28 U.S.C. § 16 636(b)(1)(C) and Local Rule 304, this court has conducted a de 17 novo review of this case, and for the following reasons declines 18 to follow the full recommendation of the magistrate judge. 19 The magistrate judge recommends denying defendant’s 20 motion for summary judgment on the grounds that plaintiff had 21 raised genuine disputes of material fact as to both whether his 22 conditions of confinement violated the Eighth Amendment and 23 whether defendant was entitled to qualified immunity. (See 24 Docket No. 42.) 25
26 1 Plaintiff contends that defendant failed to serve plaintiff with a copy of defendant’s objections. (ECF No. 46 at 27 1.) However, defendant’s objections are accompanied by a certificate of service attesting to service by mail on 28 plaintiff’s address of record. (ECF No. 45 at 10.) 1 However, the Supreme Court has instructed that a court 2 may assume without deciding the existence of a constitutional 3 violation for the purposes of determining whether the official 4 who committed the alleged violation was entitled to qualified 5 immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). 6 Pursuant to that guidance, this court elects not to first answer 7 the question of whether defendant’s conduct which is the subject 8 of this action violated plaintiff’s constitutional rights. 9 Instead, the court proceeds first to address the question of 10 whether, construing the facts in the light most favorable to 11 plaintiff, defendant is entitled to qualified immunity. 12 I. Legal Standard 13 In § 1983 actions, “[q]ualified immunity protects 14 government officials from liability for civil damages insofar as 15 their conduct does not violate clearly established statutory or 16 constitutional rights of which a reasonable person should have 17 known.” Pearson, 555 U.S. at 231 (2009) (citation modified). 18 “The test for qualified immunity is: (1) identification of the 19 specific right being violated; (2) determination of whether the 20 right was so clearly established as to alert a reasonable officer 21 to its constitutional parameters; and (3) a determination of 22 whether a reasonable officer would have believed that the policy 23 or decision in question was lawful.” McDade v. West, 223 F.3d 24 1135, 1142 (9th Cir. 2000). 25 “Once the defense of qualified immunity is raised by 26 the defendant, the plaintiff bears the burden of showing that the 27 rights allegedly violated were ‘clearly established.’” LSO, Ltd. 28 v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). “If plaintiff 1 carries this burden, then the officer[] must prove that [his] 2 conduct was reasonable even though it might have violated 3 constitutional standards.” Romero v. Kitsap Cnty., 931 F.2d 624, 4 627 (9th Cir. 1991). 5 A. Determining What Constitutes Clearly Established Law 6 Whether the unlawfulness of the conduct at issue is 7 clearly established “depends largely upon the level of generality 8 at which the relevant ‘legal rule’ is to be identified.” Wilson 9 v. Layne, 526 U.S. 603, 614 (1999). The Supreme Court’s “cases 10 [have] establish[ed] that the right the official is alleged to 11 have violated must have been ‘clearly established’ in a more 12 particularized, and hence more relevant, sense: The contours of 13 the right must be sufficiently clear that a reasonable official 14 would understand that what he is doing violates that right.” 15 Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Vos v. 16 City of Newport Beach, 892 F.2d 1024, 1035 (9th Cir. 2018) (“The 17 Supreme Court has repeatedly admonished courts not to define 18 clearly established law at a high level of generality.” 19 (quotations omitted)). 20 “This is not to say that an official action is 21 protected by qualified immunity unless the very action in 22 question has previously been held unlawful, but it is to say that 23 in light of pre-existing law the unlawfulness must be apparent.” 24 Anderson, 483 U.S. at 640 (citation omitted). In other words, 25 “[f]or a right to be clearly established, case law must 26 ordinarily have been earlier developed in such a concrete and 27 factually defined context to make it obvious to all reasonable 28 government actors, in the defendant's place, that what he is 1 doing violates federal law.” Shafer v. Cnty. of Santa Barbara, 2 868 F.3d 1110, 1117 (9th Cir. 2017); see also Reichle v. Howards, 3 566 U.S. 658, 664 (2012) (for a right to be clearly established, 4 “existing precedent must have placed the statutory or 5 constitutional question beyond debate.”). 6 “Although the Supreme Court has provided little 7 guidance as to where courts should look to determine whether a 8 particular right was clearly established at the time of the 9 injury,” courts “in the Ninth Circuit begin [their] inquiry by 10 looking to binding precedent.” Hopkins v. Bonvicino, 573 F.3d 11 752, 772 (9th Cir. 2009) (citation modified). “If the right is 12 clearly established by decisional authority of the Supreme Court 13 or this Circuit, [the] inquiry should come to an end.” Id. 14 B. Clearly Established Law Regarding Outdoor Exercise 15 While the Ninth Circuit has decried the deprivation of 16 outdoor exercise in various instances, it has never held that the 17 lack of outdoor exercise for prisoners per se constitutes an 18 Eighth Amendment violation. Although it has held that “some form 19 of regular outdoor exercise is extremely important to the 20 psychological and physical well being of . . . inmates,” Spain v. 21 Procunier, 600 F.2d 189, 199 (9th Cir. 1979), it has not clearly 22 established that the deprivation of outdoor exercise for a 23 temporary period, offset in part by the maintenance of other 24 privileges, violates the Eighth Amendment. 25 In Spain, the Ninth Circuit found that denying inmates 26 outdoor exercise privileges constituted an Eighth Amendment 27 violation only when viewed in conjunction with “[s]everal [other] 28 factors”: the inmates were in “continuous segregation, spending 1 virtually 24 hours every day in their cells with only meager out- 2 of-cell movements and corridor exercise,” had “minimal” contact 3 with “other persons,” and lived in “an atmosphere of fear and 4 apprehension.” Id. 5 In the years following Spain, in dealing with the 6 deprivation of outdoor exercise, the Ninth Circuit has required a 7 showing of harsh conditions beyond simply being deprived of 8 outdoor exercise in order to constitute an Eighth Amendment 9 violation. For example, in Keenan v. Hall, 83 F.3d 1083, 1089 10 (9th Cir. 1996), opinion amended on denial of reh'g, 135 F.3d 11 1318 (9th Cir. 1998), the court emphasized that the inmates were 12 “confined to continuous and long-term segregation.” Also, in 13 Thomas v. Ponder, 611 F.3d 1144, 1146, 1152-53 (9th Cir. 2010) 14 the inmate was not just deprived of outdoor exercise but was 15 confined to the maximum security housing unit. See also Allen v. 16 Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994) (prison official not 17 entitled to qualified immunity when prisoner was largely deprived 18 of outdoor exercise for six weeks while being “indefinite[ly]” 19 housed in special holding unit “under admittedly ‘harsh’ 20 conditions”). 21 The court sees nothing per se cruel or unusual in 22 requiring prisoners to exercise indoors rather than out-of-doors. 23 Indeed, weather and air quality are often better indoors, and 24 many people, even those who are not incarcerated, choose to 25 exercise indoors. For that reason, the Ninth Circuit has 26 repeatedly held that prison officials who suspended outdoor 27 exercise privileges during outbreaks of prison violence or to 28 mitigate violent prisoners were either entitled to qualified 1 immunity or did not violate the Eighth Amendment. See, e.g., 2 Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010) (prison 3 officials who denied inmate outdoor exercise privileges during 4 period of prison violence entitled to qualified immunity); 5 LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993) (no Eighth 6 Amendment violation when inmate was deprived of outdoor exercise 7 privileges for approximately five years because of violent 8 disciplinary infractions); Hayward v. Procunier, 629 F.2d 599, 9 603 (9th Cir. 1980) (no Eighth Amendment violation where prison 10 officials instituted month-long deprivation of outdoor exercise 11 privileges during prison lockdown), cert. denied, 451 U.S. 937 12 (1981); Corona v. Knowles, 687 F.App’x 602, 603 (9th Cir. 2017) 13 (prison warden who deprived inmate of outdoor exercise for 14 approximately five months in response to violent attack on prison 15 officials entitled to qualified immunity at summary judgment). 16 But the Ninth Circuit has yet to determine the 17 circumstances under which a temporary deprivation of outdoor 18 exercise for an inmate not subject to “continuous and long-term 19 segregation,” Keenan, 83 F.3d at 1089, or otherwise “harsh 20 conditions,” Allen, 48 F.3d at 1088, rises to the level of an 21 Eighth Amendment violation. Cf. Rhoden v. Mayberg, No. 1:07-cv- 22 01151 BLW LMB, 2011 WL 219992, at *3 (E.D. Cal. Jan. 21, 2011) 23 (“No clearly established law exists governing what combination of 24 indoor and outdoor exercise is appropriate for inmates . . . 25 where ‘harsh’ living conditions are not at issue, but where 26 facility staff must take into consideration the possible health 27 risks attendant with high summer temperatures.”), aff’d, 473 28 F.App’x 737 (9th Cir. 2012). 1 Indeed, the Ninth Circuit has suggested that outdoor 2 exercise may not be required at all so long as “otherwise 3 meaningful recreation” is provided to inmates. Shorter v. Baca, 4 895 F.3d 1176, 1185 (9th Cir. 2018); see also Norbert, 10 F.4th 5 at 929 (“[W]e have not imposed a rigid requirement of outdoor 6 exercise regardless of the other opportunities for physical 7 exercise that a correctional institution affords.”). Thus, no 8 clearly established law exists regarding whether, and how much, 9 outdoor exercise is required for inmates not subject to harsh 10 conditions. 11 II. Conclusion 12 It is important not to forget that the events giving 13 rise to this lawsuit occurred during the height of the Covid-19 14 pandemic, during which Covid-19 was a “quickly evolving area of 15 science . . . about which scientific conclusions have been hotly 16 contested.” Høeg v. Newsom, 652 F. Supp. 3d 1172, 1188 (E.D. Cal. 17 2023). At the time, “COVID-19 [wa]s a novel, highly infectious 18 virus that . . . resulted in lockdowns of entire countries around 19 the globe to stop the spread of the virus.” Torres v. Milusnic, 20 472 F. Supp. 3d 713, 727 (C.D. Cal. 2020). Even in noncustodial 21 settings, quarantines, masking, and social distancing were the 22 order of the day. 23 “The novel nature of COVID-19 and the atmosphere of 24 confusion concerning the proper methods of addressing it are 25 particularly salient here given that the events alleged in the 26 complaint occurred in” 2021, approximately one year “into the 27 pandemic.” Cox v. Bal, No. 2:22-cv-00804 WBS EFB, 2024 WL 28 4977193, at *2 (E.D. Cal. Dec. 4, 2024). “With this context in ee ne I OO EOE IE REE IIE IIE IEE ONDE III I OSE OE OE EES
1 mind, it is clear that . . . prison officials were trying to do 2 the best they could in unprecedented circumstances,” id., by 3 penalizing an inmate for breaching the very safety protocols 4 designed to curb the spread of the pandemic. 5 Viewing the evidence in the light most favorable to 6 | plaintiff, the court finds that plaintiff’s conditions of 7 | confinement fall short of the extreme circumstances in Spain and 8 its progeny. Because plaintiff has failed to show the existence 9 | of clearly established law regarding when a temporary deprivation 10 of outdoor exercise for inmates not subject to harsh conditions 11 constitutes an Eighth Amendment violation, defendant is entitled 12 to qualified immunity. 13 Qualified immunity protects “all but the plainly 14 incompetent or those who knowingly violate the law.” Malley v. 15 | Briggs, 475 U.S. 335, 341 (1986). Given the circumstances of 16 this case, this court cannot conclude that Lt. Pittsley was 17 plainly incompetent or knowingly violated the law. Accordingly, 18 because the court finds that defendant is entitled to gualified 19 immunity, it does not reach the question of whether defendant’s 20 conduct in fact violated plaintiff’s Highth Amendment rights. 21 IT IS THEREFORE ORDERED that plaintiff’s motion for 22 summary judgment (Docket No. 22) be, and the same hereby is 23 DENIED; 24 AND IT IS FURTHER ORDERED that defendant’s motion for 25 summary judgment (Docket No. 36) be, and the same hereby is, 26 GRANTED on the ground of qualified immunity. 27 Dated: September 30, 2025 dete ak. 4) 4 28 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE