It has been clearly established law since 2020, a Ninth Circuit panel concluded this week, that prisoners have an Eighth Amendment right to “outdoor exercise or otherwise meaningful opportunities for recreation.” Evidence that a Nevada prisoner was confined to his cell for 23 or 23 and a half hours a day for more than a year raised a triable issue of fact as to whether that right was violated, the appellate court concluded in Cardenas-Ornelas v. Johnson, 24-6755. The fact that the appellant could do in-cell exercise or walk to work was not an adequate substitute for conditions that permitted actual recreation, and the fact that the warden argued that this confinement was a response to COVID-19 did not defeat that conclusion.
Photo by Hédi Benyounes on Unsplash.
The length of the deprivation is important here. In Witkin v. Pittsley, 2:22-cv-1211 WBS CSK P (E.D.Cal. Oct. 1, 2025), a district court concluded that a 60-day suspension of outdoor exercise for an inmate was covered by qualified immunity. 2025 U.S. Dist. LEXIS 194849 at * 9-10.
The damages in this type of case will typically be based on the psychological impact to the prisoner, which is a potentially tricky issue because the Prison Litigation Reform Act normally requires a showing of physical injury in order for a case brought based on emotional damages to be brought. In cases where there has been extensive (i.e., more than six weeks) deprivation of exercise, however, there is precedent (in the Seventh and Ninth Circuits, at least) for the idea that the deprivation in itself is sufficient. Lopez v. Smith, 203 F.3d 1122, 133, fn. 15 (9th Cir. 2000); Delaney v. DeTella, 256 F.3d 679, 685 (7th Cir. 2001).
Also interesting is the way Cardenas-Ornelas showed the subjective awareness of the defendant warden of the fact that this confinement was occurring and was excessive: namely because the warden personally denied his first-level grievance, and thus was put on notice of the situation. At least in this situation, then, the bureaucratic runaround of administrative exhaustion actually served some purpose in identifying who was responsible for what was happening.
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