Kenyon Norbert v. City and County of San Francisco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENYON NORBERT ; M ONTRAIL
BRACKENS ; J OSE POOT ; M ARSHALL
HARRIS ; ARMANDO CARLOS ;
M ICHAEL BROWN; TROY
M CALLISTER, on behalf of
themselves individually and others
similarly situated, as a class and
Subclass,
Plaintiffs-Appellees/
Cross-Appellants,
v.
CITY AND C OUNTY OF S AN
FRANCISCO,
Defendant-Appellant/
Cross-Appellee,
and
SAN FRANCISCO SHERIFF 'S
DEPARTMENT ; VICKI HENNESSY, San
Francisco Sheriff; PAUL M IYAMOTO ,
San Francisco Chief Deputy Sheriff;
J ASON J ACKSON; M CCONNELL ,
Defendants.
Nos. 20-15341
20-15449
D.C. No.
3:19-cv-02724-
SK
OPINION

-- 1 of 38 --

2 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Argued and Submitted March 11, 2021
San Francisco, California
Filed August 26, 2021
Before: M. Margaret McKeown, Sandra S. Ikuta, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress
SUMMARY*
Prisoner Civil Rights
The panel (1) dismissed as moot defendants’ appeal from
the district court’s preliminary injunction order;
(2) affirmed, on cross-appeal, the district court’s denial of
plaintiffs’ request for more expansive preliminary injunctive
relief; and (3) dismissed, for lack of jurisdiction, plaintiffs’
appeal from the district court’s order dismissing certain
defendants in an action brought pursuant to 42 U.S.C. § 1983
by seven inmates at county jails in San Francisco alleging,
among other things, violations of the Eighth and Fourteenth
Amendments, based on the City’s allegedly unconstitutional
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

-- 2 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 3
practice of denying inmates housed in County Jail 5 access
to outdoor recreation time and direct sunlight exposure.
Plaintiffs challenged the City’s “complete deprivation of
access to outdoor recreation and sunshine.” They requested
that all inmates be given three hours per week of “outdoor
recreation time” and one hour per day of out-of-cell time.
The district court granted in part and denied in part plaintiffs’
motion for a preliminary injunction. The district court
found that the evidence was inconclusive as to whether the
lack of access to direct sunlight created a medical risk and
that plaintiffs had not shown a likelihood of success on their
constitutional claims seeking exercise time outdoors.
Applying a totality of the circumstances framework, the
district court held the City’s policy of permitting CJ5’s
general population inmates to receive between 4.5 and 8
hours of day room time and 30 minutes of gym time per day
was constitutionally sufficient. The district court also found,
however, that under the Fourteenth Amendment, relevant to
pretrial detainees, forcing people to live without direct
sunlight for many years was simply punishment. The district
court ordered the City to provide one hour per week of direct
sunlight (which it defined as light “not filtered through a
window”) to inmates in CJ5 who had been incarcerated for
more than four years. In the same order, the district court
dismissed the San Francisco Sheriff’s Department as a
superfluous defendant and dismissed all the individual
defendants based on qualified immunity.
The panel first held that the City’s appeal was moot
because, under the Prison Litigation Reform Act, the district
court’s preliminary injunction order expired ninety days
after entry, and there was no indication that plaintiffs moved
the district court to extend its injunction past the 90-day
period. Plaintiffs’ cross-appeal, however, was not moot

-- 3 of 38 --

4 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
because plaintiffs were appealing the district court’s order to
the extent it denied their motion for a preliminary injunction,
which sought broader relief than what the district court
issued.
The panel held that, in light of this court’s precedents and
on this record, the district court did not err in denying
plaintiffs greater preliminary injunctive relief. Addressing
the claim that plaintiffs were entitled to three hours per week
of outdoor exercise time, the panel held that the district court
correctly explained that there is no bright line test to
determine if and when inmates are entitled to outdoor
exercise. Outdoor exercise can be required, however, when
otherwise meaningful recreation is not available. Here, the
district court validly determined that the conditions at CJ5
did not resemble those extreme and degrading circumstances
in which outdoor exercise has been required. Most inmates
in CJ5 spend eight hours per day out of their cells between
free time and programming. They can exercise in both the
day rooms and gyms. And they have cell windows that
permit in outside natural light, and gyms that allow in both
outside light and ambient air. The district court reasonably
concluded on this record that inmates were given
constitutionally sufficient recreation time.
The panel also rejected plaintiffs’ argument that the
district court should have imposed a broader preliminary
injunction that required three hours of direct sunlight per
week for all inmates incarcerated more than six weeks. The
panel concluded that on this record, plaintiffs had not shown
a likelihood of success on their “direct sunlight” claim given
the district court’s extensive factual findings, following an
evidentiary hearing, that plaintiffs and their expert had not
demonstrated a risk of material harm to human health arising
from the light exposure in CJ5.

-- 4 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 5
The panel held that it lacked appellate jurisdiction over
plaintiffs’ cross-appeal as it pertained to the dismissal of the
Sheriff’s Department and the individual defendants because
orders appealing the dismissal of some defendants, but not
all, are ordinarily not appealable and the requirements for
pendent appellate jurisdiction were not met in this case.
COUNSEL
Kaitlyn Murphy (argued), Sabrina M. Berdux, and Margaret
W. Baumgartner, Deputy City Attorneys; Meredith B.
Osborn, Chief Trial Attorney; Dennis J. Herrera, City
Attorney; Office of the City Attorney, San Francisco,
California; for Defendants-Appellants/Cross-Appellees.
Yolanda Huang (argued), Law Offices of Yolanda Huang,
Oakland, California, for Plaintiffs-Appellees/Cross-
Appellants.
OPINION
BRESS, Circuit Judge:
We consider in this case a constitutional challenge to
certain conditions of confinement at a San Francisco jail.
The district court enjoined some of the jail’s practices, but
we principally address the plaintiff inmates’ appeal of the
district court’s order insofar as it denied their request for a
broader preliminary injunction, through which plaintiffs
sought more outdoor recreation time for a greater number of
inmates.

-- 5 of 38 --

6 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
We hold that under our precedents and on this record, the
district court did not err to the extent it denied the plaintiffs’
request for more expansive preliminary injunctive relief than
the district court had already ordered. We further hold that
the city’s appeal is moot and that we lack jurisdiction to
consider plaintiffs’ appeal of the district court’s order
dismissing certain defendants.
I
A
The plaintiffs are seven inmates at county jails in San
Francisco. When this case was filed, plaintiffs were
incarcerated at either County Jail 4 (“CJ4”) or County Jail 5
(“CJ5”). All plaintiffs are pretrial detainees, except for
plaintiff Armando Carlos, who has been convicted and is
awaiting sentencing. The defendants are the City and
County of San Francisco (“City”), which operates the county
jails; the San Francisco County Sheriff’s Department;
Sheriff Vicki Hennessy; Chief Deputy Sheriff Paul
Miyamoto; Captain Jason Jackson; and Captain Kevin
McConnell.
Plaintiffs’ putative class action complaint asserted a
broad challenge to various conditions of confinement at CJ4
and CJ5. Relevant to plaintiffs’ later request for a
preliminary injunction are those claims brought under
42 U.S.C. § 1983 for violations of the Eighth and Fourteenth
Amendments, based on the City’s allegedly unconstitutional
practice of denying inmates access to outdoor recreation
time and direct sunlight exposure. The complaint and
request for preliminary injunction discuss the conditions at
both CJ4 and CJ5, but the City later permanently closed CJ4
and moved all inmates, including plaintiffs, to CJ5.

-- 6 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 7
Accordingly, the parties agree that only the conditions of
CJ5 are relevant to this appeal.
CJ5 was opened in 2006. It is a “pod-style” jail that
houses male felony inmates, more than 90% of whom are
pretrial detainees. It is organized into 16 identical pods, each
of which has 24 two-person cells arranged in two tiers. Each
cell has a window on the back wall, which looks onto a semi-
transparent wall consisting of stripes of clear and frosted
panes, which in turn allows into cells natural light from the
outside while providing visual access to the outdoors.
The cells in CJ5 all face a central common area, or “day
room.” Each cell door has clear plastic that allows inmates
to see into the day room, but cell doors are kept open during
day room time. The day rooms contain phones, a shower, a
television, tables, and stools. The district court found that
while the day rooms “are not large enough for vigorous
exercise,” they “do allow some space for some limited
exercise.”
Connected to each day room is a gym, which is around
half the size of a basketball court and is available for inmates
to exercise. Each gym has two large grates on the sidewall
that allow in fresh air and provide an “occluded sky view”
that allows some light to enter the gym. The grates are not
covered by glass but are rather open to the ambient air
outside. There are 16 gyms total in CJ5.
CJ5 has no secure outdoor space for inmate recreation,
so inmate exercise occurs indoors. When CJ5 was built, it
replaced the old San Bruno Jail, a “linear-style” jail that did
have an outdoor exercise yard. The San Bruno Jail had
several security features (like a “cat-walk” and guard tower)
that permitted effective oversight of the exercise yard. These
features no longer exist in the current facility. The San

-- 7 of 38 --

8 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
Bruno Jail also housed a population of inmates who were
considered lower security risks than the current population
of CJ5, which made it possible for inmates to use the yard
with more minimal safety protocols. The old yard has not
been used or maintained for over a decade.
Inmates in CJ5 who are not in disciplinary segregation
are generally classified into two groups: general population
or administrative segregation. General population consists
of inmates with no unique needs who may live safely with
the other inmates. Administrative segregation is a non-
disciplinary classification for inmates who have
psychological or medical needs or who pose a safety risk,
including due to the risk that other inmates will harm them.
Plaintiffs appear to be a mix of general population and
administrative segregation inmates. The City represents that
although some inmates’ personal circumstances do not
typically change, it reviews inmates’ classification status
every two weeks to determine if an inmate in administrative
segregation can be reassigned to general population.
CJ5 inmates in general population have access to the day
room for 4.5 hours on weekdays and 8 hours on weekend
days, which is organized around other educational and
rehabilitative programming. They also are allowed at least
30 minutes in the gym each day, seven days a week.
Inmates in administrative segregation have less
recreation time than those in general population; due to
safety concerns, they cannot use the common areas as a
group. CJ5 instead provides administrative segregation
inmates at least 30 minutes of gym time and 30 minutes of
common room time each day, seven days per week,
generally in groups of two. However, jail administrators try
to create larger groups so that recreation time can be
extended. In particular, the district court explained that if

-- 8 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 9
the jail could safely accommodate more administrative
segregation inmates at once, their exercise time could then
increase. Specifically, “[f]or each two inmates added to the
total, the exercise time is increased by 30 minutes; e.g., four
inmates in the gym together would get one hour of time, six
would get one and a half hours, etc.”
B
In June 2019, plaintiffs moved for a preliminary
injunction challenging the City’s “complete deprivation of
access to outdoor recreation and sunshine.” They requested
that all inmates in CJ4 and CJ5 be given three hours per week
of “outdoor recreation time” and one hour per day of out-of-
cell time.
In support of their motion, several plaintiffs submitted
declarations about physical and emotional ailments that they
claimed were attributable to a lack of exposure to direct
sunlight over a period of years. The plaintiffs have been
incarcerated for varying numbers of years, although the
district court found it was unclear why plaintiffs who were
pretrial detainees had been detained for long periods of time.
In addition, and as relevant here, plaintiffs submitted a
three-page expert report from Dr. Jamie Zeitzer, a Stanford
psychiatrist who studies the effects of light deprivation but
who did not examine or treat any of the plaintiffs or visit
their facilities. In his report, Dr. Zeitzer explained that many
biological activities rely on a proper circadian clock, which
“is dependent on exposure to regular light-dark cycle.” He
opined that disruption of the circadian clock can lead to
health problems and sleep disruption. But the district court
recounted that Dr. Zeitzer later testified at an evidentiary
hearing that while indoor lighting “‘doesn’t completely
recapitulate what you would get outside’ for health

-- 9 of 38 --

10 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
purposes,” generally sunlight “filtered through windows”
supplies “the proper differential.” In addition to taking
testimony at the evidentiary hearing, the district court also
conducted site visits to both CJ4 and CJ5.
The district court granted in part and denied in part the
plaintiffs’ motion for preliminary injunction. It first
reviewed the evidentiary record and made several relevant
findings about plaintiffs’ medical evidence and the
testimony of Dr. Zeitzer. The district court summarized its
findings as follows:
[T]he total amount of light a person receives
is not the important factor for health; instead,
the difference between light at night and light
during the day is significant for health. In
general, the type of light—whether sunlight
or artificial light—is not significant.
However, exposure to a smaller amount of
sunlight each week suffices to reset the
Circadian clock because sunlight is usually
very bright. Zeitzer’s opinions about the
conditions of the inmates at County Jails 4
and 5 are based on general knowledge and not
on any specific medical data for the
individual inmates, and Zeitzer, who is not a
medical doctor, has not treated or examined
any of the inmates.
From this, the district court found that the “scientific
evidence regarding access to light is inconclusive,” in that
“[t]he evidence in the record at this point is inconclusive as
to whether the lack of access to direct sunlight creates a
medical risk.” (capitalization omitted). Noting the lack of
any measurements of the differential between light during

-- 10 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 11
the day and night at CJ4 or CJ5, the district court found that
“it is impossible for the Court to determine if Plaintiffs are
suffering harm caused by an insufficient difference between
light during the day and light during the night.”
The district court also found that plaintiffs had not
demonstrated harm from a lack of exposure to direct
sunlight. The district court noted that plaintiffs in CJ5 (and
CJ4) did have exposure to sunlight through cell windows and
gym grates. Explaining that “the issue is one of causation,”
the district court found that “[t]he evidence at this time is not
clear, and Plaintiffs do not meet their burden to show that the
conditions caused their physical problems because the
evidence at this time does not show causation between the
lack of direct sunlight and the medical problems.”
As the district court concluded:
To the extent that Plaintiffs claim harm from
lack of direct sunlight, as opposed to lack of
a sufficient difference between light at night
and light during the day, the evidence does
not support that claim. Zeitzer opined that
the type of light that a person receives
generally does not matter, as long as the light
source does not filter out certain types of
light, and Zeitzer does not know what type of
light inmates receive. Thus, Plaintiffs have
not met their burden for purposes of this
motion for preliminary injunction to show
that the amount of light or type of light they
receive is harmful to them.
Turning to its legal analysis, the district court first held
that plaintiffs had not shown a likelihood of success on their
constitutional claims seeking exercise time outdoors.

-- 11 of 38 --

12 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
Surveying case law, the district court reasoned that “outdoor
exercise is necessary when inmates or pretrial detainees are
held in cells with little opportunity for out-of-cell movement,
where the incarceration is lengthy, and where there is no
concern about safety that requires elimination of outdoor
exercise.” But it noted that “access to day rooms or other
indoor exercise areas, without a showing of actual harm, can
make up for lack of outdoor exercise.” The district court
explained that “[a]ll of these factors are interrelated, and
there is no bright line test to determine if and when inmates
are entitled to outdoor exercise—as opposed to ‘meaningful
recreation.’”
Applying this totality of the circumstances framework,
the district court held it was constitutionally sufficient that
CJ5’s general population inmates received between 4.5 and
8 hours of day room time and 30 minutes of gym time per
day. The district court also held that CJ5’s policies for
administrative segregation inmates passed constitutional
muster, although “barely.” As noted, these inmates were
given at least 30 minutes of gym time and 30 minutes of day
room time each day.1
The district court applied a different analysis to
plaintiffs’ Fourteenth Amendment claims, relevant to
pretrial detainees, on the issue of direct sunlight exposure.
The district court held that under the Fourteenth
Amendment, “[e]ven if the evidence shows that access to
1 The district court found that administrative segregation inmates in
CJ4, who were receiving only three hours per week of out-of-cell time,
did show a likelihood of success on the merits of their constitutional
claims. The court observed that “[t]he issue in County Jail 4 for inmates
in administrative segregation is not the denial of outdoor exercise, but a
denial of outdoor exercise without a meaningful alternative of out-of-cell
time.” (Emphasis added).

-- 12 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 13
direct sunlight is not medically necessary, forcing people to
live without direct sunlight for many years is simply
punishment,” unless the deprivation is “for a short period of
time.”
Having concluded that the remaining preliminary
injunction factors favored the plaintiffs, the district court
ordered that those inmates who had been incarcerated for
more than four years must be given access to “direct
sunlight” at least one hour per week. The court identified
the four-year mark as the relevant point in time based on our
decision in Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979).
As for the amount of direct sunlight required per week,
the court “realize[d] that any injunction draws an arbitrary
line.” It chose one hour of direct sunlight per week because
although Dr. Zeitzer had “recommend[ed] 30 minutes of
sunlight per day,” the court was “also concerned about the
practical ability of the City and County of San Francisco to
provide access to direct sunlight.” Still, the court
acknowledged that “it is unclear if Zeitzer’s
recommendation would be the same for” inmates who
received access to filtered sunlight during the day (the case
for inmates in CJ5). The district court’s preliminary
injunction purports to extend to all covered inmates, even
though the court had not certified any class under Federal
Rule of Civil Procedure 23.
In response to the City’s later request for clarification of
the preliminary injunction, the district court issued a further
order explaining that “direct sunlight” requires sunlight that
“is not filtered through a window.” The parties interpret this
to mean that the sunlight from cell windows in CJ5 or from
the gym grates is insufficient. Because the district court
order requiring “direct sunlight” exposure did not indicate
that inmates would need to be able to exercise during that

-- 13 of 38 --

14 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
time, we understand the district court’s Fourteenth
Amendment analysis to be based on an identified right to
direct natural light exposure (not filtered through a window),
as opposed to a right to physical recreation outdoors. That
is consistent with the district court’s earlier analysis rejecting
plaintiffs’ request for outdoor exercise in light of the indoor
exercise opportunities made available to them.2
In the same order as the preliminary injunction, the
district court granted in part the City’s motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). The court
dismissed with prejudice the San Francisco Sheriff’s
Department because it is not a separate entity from the City,
cannot be sued in its own name, and was therefore a
superfluous defendant. The district court also dismissed
with prejudice all the individual defendants based on
qualified immunity.
C
The City filed a notice of appeal of the district court’s
preliminary injunction order and moved in the district court
for a stay of the preliminary injunction pending appeal.
Before the stay motion could be heard, the parties stipulated
to a continuance while they pursued settlement talks.
Plaintiffs then filed a notice of cross-appeal. Plaintiffs
appeal certain aspects of the district court’s denial of
preliminary injunctive relief and also purport to appeal the
2 In addition to the direct sunlight requirement, the district court
ordered the City to provide inmates in CJ4’s administrative segregation
unit with at least one hour of daily exercise. The City complied with that
requirement by closing CJ4 and moving all CJ4 inmates to CJ5, which
the district court found provided adequate exercise opportunities. CJ5
has since been renamed CJ3, but for ease of reference we will continue
to refer to it as CJ5.

-- 14 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 15
Rule 12(b)(6) dismissal of the Sheriff’s Department and the
individual defendants.
In the meantime, after the parties failed to settle, they
completed briefing in the district court on the City’s motion
to stay the injunction pending appeal. But the district court
denied the stay motion as moot, finding that the preliminary
injunction had in fact already expired under the Prison
Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110
Stat. 1321–66 (1996) (codified as amended in scattered
sections of 11, 18, 28, and 42 U.S.C.).
Under the PLRA, “[p]reliminary injunctive relief shall
automatically expire on the date that is 90 days after its entry,
unless the court makes the findings required under
subsection (a)(1) for the entry of prospective relief and
makes the order final before the expiration of the 90-day
period.” 18 U.S.C. § 3626(a)(2). There is no indication that
plaintiffs moved the district court to extend its injunction
past the 90-day period. The district court explained that its
preliminary injunction had expired automatically under the
PLRA because the court had not made the preliminary
injunction a final injunction, nor had the court renewed it.
The plaintiffs do not challenge this determination on
appeal.3
3 Proceedings before the district court have continued during the
pendency of this appeal. As relevant here, plaintiffs filed a second
motion for preliminary injunction, seeking to renew the relief awarded
in the first (expired) injunction, as well as additional relief. The district
court denied this request without prejudice, citing this pending appeal
and the materially changed circumstances caused by the COVID-19
pandemic. Plaintiffs did not appeal this order. In the meantime,
plaintiffs’ pending motion for class certification is set for hearing on
August 30, 2021.

-- 15 of 38 --

16 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
II
We first address the City’s motion to dismiss this
appeal. The City argues that because the district court’s
preliminary injunction has now expired, both the City’s
appeal and the plaintiffs’ cross-appeal of the preliminary
injunction order are now moot. The City is correct that its
own appeal is moot. See, e.g., Edmo v. Corizon, Inc.,
935 F.3d 757, 782 (9th Cir. 2019) (“Generally, the
expiration of an injunction challenged on appeal moots the
appeal.”). We thus grant the City’s motion to dismiss its
appeal.
Plaintiffs’ cross-appeal is not moot. Under 28 U.S.C.
§ 1292(a)(1), we have jurisdiction over appeals from the
denial of preliminary injunctive relief. See, e.g., Monarch
Content Mgmt. LLC v. Ariz. Dep’t of Gaming, 971 F.3d
1021, 1026–27 (9th Cir. 2020) (“We have jurisdiction over
this appeal of the district court’s denial of a preliminary
injunction under 28 U.S.C. § 1292 . . . .”). Plaintiffs are
appealing the district court’s order to the extent it denied
their motion for a preliminary injunction, which sought
broader relief than what the district court issued. The PLRA
does not prevent plaintiffs from appealing the district court’s
order insofar as it denied plaintiffs relief because what
expired after 90 days was only the preliminary injunctive
relief that was entered. See 18 U.S.C. § 3626(a)(2). To this
extent, the City’s motion to dismiss this appeal is denied.
We thus turn to plaintiffs’ cross-appeal of the
preliminary injunction order.

-- 16 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 17
III
A
“We review an order regarding preliminary injunctive
relief for abuse of discretion, but review any underlying
issues of law de novo.” Karnoski v. Trump, 926 F.3d 1180,
1198 (9th Cir. 2019) (per curiam). A preliminary injunction
is an “extraordinary remedy.” California v. Azar, 950 F.3d
1067, 1105 (9th Cir. 2020) (citing Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008)). It “should not be
granted unless the movant, by a clear showing, carries the
burden of persuasion.” Lopez v. Brewer, 680 F.3d 1068,
1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (per curiam)).
“A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits, [2] that
he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his
favor, and [4] that an injunction is in the public interest.”
Winter, 555 U.S. at 20. “Likelihood of success on the merits
is ‘the most important’ factor . . . .” Azar, 911 F.3d at 575
(quoting Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848,
856 (9th Cir. 2017)).
The plaintiffs, as we have noted, are either pretrial
detainees or have been convicted and are awaiting
sentencing. Under case law, “[t]he status of the detainees
determines the appropriate standard for evaluating
conditions of confinement.” Vazquez v. County of Kern,
949 F.3d 1153, 1163 (9th Cir. 2020) (quoting Gary H. v.
Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987)); see also
Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015); Bell v.
Wolfish, 441 U.S. 520, 535 n.16 (1979).

-- 17 of 38 --

18 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
For plaintiff Armando Carlos, who is convicted and
awaiting sentencing, the Eighth Amendment supplies the
relevant standard. See Vazquez, 949 F.3d at 1164. The
Eighth Amendment prohibits “cruel and unusual
punishments.” U.S. Const. amend. VIII. “An Eighth
Amendment claim that a prison official has deprived inmates
of humane conditions of confinement must meet two
requirements, one objective and one subjective.” Allen v.
Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (citing Farmer v.
Brennan, 511 U.S. 825, 834 (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 Farmer, 511 U.S. at 834). This
requires the inmate to demonstrate “conditions posing a
substantial risk of serious harm” that present an “excessive
risk to [his] health or safety.” Farmer, 511 U.S. at 834, 837.
“The subjective requirement, relating to the defendant’s state
of mind, requires deliberate indifference.” Allen, 48 F.3d
at 1087.
The claims of the remaining plaintiffs, who are pretrial
detainees, “are analyzed under the Fourteenth Amendment
Due Process Clause, rather than under the Eighth
Amendment.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.
1998) (citing Bell, 441 U.S. at 535 n.16). Precedent teaches
that “the Fourteenth Amendment is more protective than the
Eighth Amendment ‘because the Fourteenth Amendment
prohibits all punishment of pretrial detainees.’” Vazquez,
949 F.3d at 1163–64 (quoting Demery v. Arpaio, 378 F.3d
1020, 1029 (9th Cir. 2004)). By this standard, “[f]or a
particular governmental action to constitute punishment,
(1) that action must cause the detainee to suffer some harm
or ‘disability,’ and (2) the purpose of the governmental
action must be to punish the detainee.” Demery, 378 F.3d
at 1029. This requires showing at least reckless disregard

-- 18 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 19
for inmates’ health or safety. See Castro v. County of Los
Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016).
Plaintiffs argue that the district court’s preliminary
injunction did not go far enough. Whereas the district court
determined that inmates at CJ5 who had been incarcerated
more than four years must be given access to “direct
sunlight” at least one hour per week, plaintiffs maintain that
all inmates who have been incarcerated for more than six
weeks should receive three hours of “outdoor exercise” per
week. (Before the district court plaintiffs sought this relief
for all inmates regardless of their time in jail, but now
propose that relief begin at the six-week mark.) Under the
district court’s (now-expired) injunction, those plaintiffs
who had been incarcerated more than four years already
received some amount of relief, although they claim they are
entitled to more. At least three plaintiffs had been
incarcerated less than four years and so received no relief.
What this means is that although the City’s appeal is
moot and plaintiffs are only challenging the denial of
additional preliminary injunctive relief beyond what the
district court ordered, to resolve the plaintiffs’ cross-appeal
we must necessarily consider some of the same legal issues
underlying the injunctive relief that the district court did
order. Plaintiffs appear to seek class-wide relief, but at the
time of the preliminary injunction decision (and now), no
class had been certified. It is well-established that “[w]ithout
a properly certified class, a court cannot grant relief on a
class-wide basis.” Zepeda v. INS, 753 F.2d 719, 728 n.1 (9th
Cir. 1983). Thus, the plaintiffs’ cross-appeal must be limited
to the named plaintiffs’ claims only.
One of the complexities of this case, however, is the
precise nature of those claims. To some extent, plaintiffs
argue that they are entitled to three hours per week of

-- 19 of 38 --

20 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
outdoor exercise time. But plaintiffs also maintain they are
entitled to three hours per week of exposure to direct
sunlight.
We will analyze plaintiffs’ claims both ways. As we
now explain, on this record, plaintiffs have not shown a
likelihood of success on either theory because, at the very
least, plaintiffs have not shown that the district court erred in
denying them more expansive relief than what the court
already ordered.
B
1
We begin with the outdoor exercise theory. We have
recognized that “exercise is ‘one of the basic human
necessities protected by the Eighth Amendment.’” May v.
Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (quoting
LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993)). We
have held the same under the Fourteenth Amendment. See,
e.g., Pierce v. County of Orange, 526 F.3d 1190, 1211–12
(9th Cir. 2008). Plaintiffs appear to maintain, however, that
this right must always encompass the opportunity to exercise
outdoors.
We think that our cases do not extend quite so far. We
have stated that “the long-term denial of outside exercise is
unconstitutional.” LeMaire, 12 F.3d at 1458 (emphasis in
original). Even so, we have never held that all deprivations
of outdoor exercise are per se unconstitutional. See Spain v.
Procunier, 600 F.2d 189, 199 (9th Cir. 1979). Whether
under the Eighth or Fourteenth Amendments, we have not
imposed a rigid requirement of outdoor exercise regardless
of the other opportunities for physical exercise that a
correctional institution affords. Instead, we have explained,

-- 20 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 21
“the Constitution requires jail officials to provide outdoor
recreation opportunities, or otherwise meaningful
recreation, to prison inmates.” Shorter v. Baca, 895 F.3d
1176, 1185 (9th Cir. 2018) (emphasis added). Thus, to
vindicate a constitutional right to exercise, outdoor exercise
can indeed be required, when “otherwise meaningful
recreation” is not available.
While plaintiffs cast Shorter’s allowance of otherwise
meaningful recreation off as mere dicta, it is an accurate
encapsulation of our case law as a whole. And while
plaintiffs point out that some of our cases couched the right
to “exercise” as one for “outdoor exercise,” it is not apparent
in those cases that “otherwise meaningful recreation,” id.,
was available. A tour through our cases bears this out.
Our decision in Spain, 600 F.2d 189, is the foremost
circuit precedent on this issue. In Spain, we explained that
“[t]here 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.” Id. at 199. But, importantly, we did not “consider
it necessary to decide whether deprivation of outdoor
exercise is a per se violation of the [E]ighth [A]mendment.”
Id.
That is because “[s]everal factors combined to make
outdoor exercise a necessity” on the facts of that case. Id.;
see also Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.
1984) (explaining that in Spain, “we held that, on the facts
presented, the denial of outdoor exercise constituted cruel
and unusual punishment”); Wright v. Rushen, 642 F.2d 1129,
1134 (9th Cir. 1981) (explaining that Spain’s approval of an
order mandating outdoor exercise was based on “the
cumulative effect of related prison conditions”).
Specifically, the inmates in Spain were held “in continuous

-- 21 of 38 --

22 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
segregation, spending virtually 24 hours every day in their
cells with only meager out-of-cell movements and corridor
exercise,” had “minimal” contact with other persons, and
were offered no “affirmative programs of training or
rehabilitation.” 600 F.2d at 199.
Under these “degrading” conditions, we held “it was
cruel and unusual punishment for a prisoner to be confined
for a period of years without opportunity to go outside.” Id.
at 199–200. We thus affirmed the district court’s order that
inmates who were confined for more than four years under
these conditions should receive outdoor exercise five days
per week for one hour per day. Id. at 200.
While we framed our discussion in Spain in terms of
“outdoor exercise,” we did not suggest that indoor
recreational opportunities could never satisfy constitutional
standards. And importantly, it is apparent that the prison in
Spain did not have adequate indoor recreation options.
Instead, we noted that the indoor recreational opportunities
for inmates were nominal at best: the plaintiffs “were
permitted to exercise one at a time in a corridor,” and “in
practice the exercise times were often far shorter than one
hour and less frequent than five days a week.” Id. at 199.
Since Spain, we have reaffirmed that the
constitutionality of conditions for inmate exercise must be
evaluated based on the full extent of the available
recreational opportunities. In Toussaint v. Yockey, 722 F.2d
1490 (9th Cir. 1984), inmates were held in “administrative
segregation” and many “were confined to their cells for as
much as 23 ½ hours a day.” Id. at 1492–93. We concluded
that the conditions were “[s]imilar” to those in Spain and
therefore affirmed a preliminary injunction requiring the
state to provide “outdoor exercise.” Id. at 1493.

-- 22 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 23
Once again, however, our analysis in Toussaint
demonstrated that we were not imposing a per se
requirement that exercise necessarily take place outside.
Instead, if anything, we indicated the opposite. We
specifically noted the defendants’ argument that the state’s
own regulations permitted indoor exercise. Id. But we
explained that “Defendants’ argument misses the point”
because “[t]he district court did not invalidate the state
regulation; it merely held that, given the circumstances of
this case, the denial of outdoor exercise was probably
unconstitutional.” Id. (emphasis added). We then
immediately followed this point with a favorable
comparison citation of Spain to the Fourth Circuit’s decision
in Clay v. Miller, 626 F.2d 345 (4th Cir. 1980) (per curiam),
which we described as holding that outdoor exercise was not
required “where prisoners had access to [a] dayroom
eighteen hours a day.” Id. The plain import of our citation
of Clay was that indoor recreation opportunities could be
constitutionally sufficient in some circumstances.4
Our analysis in Pierce v. County of Orange, 526 F.3d
1190 (9th Cir. 2008), a Fourteenth Amendment case
4 Indeed, the Supreme Court in Wilson v. Seiter, 501 U.S. 294
(1991), drew a similar comparison between Spain and Clay. Id. at 304–
05. It explained that “[s]ome conditions of confinement may establish
an Eighth Amendment violation ‘in combination’ when each would not
do so alone, but only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need such as
food, warmth, or exercise . . . .” Id. at 304. Like Toussaint, the Supreme
Court then offered this example: “Compare Spain v. Procunier, 600 F.2d
189, 199 (CA9 1979) (outdoor exercise required when prisoners
otherwise confined in small cells almost 24 hours per day), with Clay v.
Miller, 626 F.2d 345, 347 (CA4 1980) (outdoor exercise not required
when prisoners otherwise had access to dayroom 18 hours per day).” Id.
at 304–05; see also Wright, 642 F.2d at 1133 (drawing the same
comparison between Spain and Clay).

-- 23 of 38 --

24 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
involving pre-trial detainees, is along the same lines. There
we considered the “almost complete denial of exercise,” id.
at 1213, which is not comparable to inmates’ experiences in
CJ5. We held in Pierce that as to inmates in administrative
segregation who spent twenty-two hours or more in their
cells, providing “only ninety minutes of exercise per week—
less than thirteen minutes per day—does not comport with
constitutional standards.” Id. at 1208, 1212. We declined to
“hold that there is a specific minimum amount of weekly
exercise that must be afforded to detainees who spend the
bulk of their time inside their cells,” but ordered that the
inmates be permitted to exercise at least two times each week
for at least two hours per week. Id. at 1212–13.
Relevant here, in Pierce we once again did not suggest
that the physical exercise necessarily had to take place
outdoors. To the contrary, we noted that “inmates’ access to
day rooms . . . is a factor affecting our determination of what
constitutes adequate exercise.” Id. at 1212 n.22. But we
concluded that the indoor facilities at issue were inadequate
for exercise purposes: the “day rooms [were] not designed
for exercise” and did not provide an “exercise opportunity”
“given the space constraints and absence of any appropriate
equipment.” Id.
Our decision in Pierce thus focused on the combination
of conditions related to physical recreation. Id. at 1212–13
& n.22. And our analysis indicated that indoor exercise was
not incapable of providing that “meaningful vindication of
the constitutional right to exercise.” Id. at 1212 & n.22.
Indeed, we cited Pierce several years later when noting that
“the Constitution requires jail officials to provide outdoor
recreation opportunities, or otherwise meaningful
recreation, to prison inmates.” Shorter, 895 F.3d at 1185
(emphasis added).

-- 24 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 25
Plaintiffs cite our decision in LeMaire, 12 F.3d 1444.
But we do not think LeMaire can be read as requiring
plaintiffs’ “outside exercise” rule. In LeMaire, we held that
the plaintiff inmate had not established an Eighth
Amendment violation even though he “had been deprived of
outside exercise for most of a five-year period of
incarceration” due to his serious misconduct in prison. Id.
at 1457. We noted not only that the plaintiff had incurred
this deprivation as a result of his own actions, but that he also
had indoor exercise opportunities as well. Id. at 1457–58.
Specifically, the plaintiff “still can exercise within his cell,”
including “low and non-impact aerobic exercise.” Id.
at 1458. Our discussion of available indoor exercise options
is thus consistent with how we approached this issue in
Spain, Toussaint, and Pierce.
Plaintiffs also cite other of our cases referencing
“outdoor exercise.” See Lopez v. Smith, 203 F.3d 1122 (9th
Cir. 2000) (en banc); May, 109 F.3d 557; Keenan v. Hall,
83 F.3d 1083 (9th Cir. 1996); Allen, 48 F.3d 1082. But once
again, we did not in these cases suggest that the Eighth or
Fourteenth Amendments categorically required exercise to
take place outdoors regardless of any indoor recreation
options.
These cases also involved deprivations of recreation that
were far more severe than what we have here. See Lopez,
203 F.3d at 1133 & n.15 (inmate was on “single-cell status”
for more than six weeks); Keenan, 83 F.3d at 1088, 1089–91
(inmate was denied outdoor exercise during six months of
segregation, only permitted recreation in “a 10’ by 12’
room” for an unspecified amount of time, and was otherwise
confined to a cell that was unsanitary and illuminated
twenty-four hours per day by fluorescent lighting); Allen,
48 F.3d at 1086 n.1, 1087, 1088 n.5 (inmate received only

-- 25 of 38 --

26 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
45 minutes of outdoor exercise in six weeks, was “permitted
out of his cell only weekly,” and was confined in “the
harshest conditions of confinement found” at the prison).
Indeed, in Norwood v. Vance, 591 F.3d 1062 (9th Cir.
2010), we noted that one of these cases, Allen, “does not hold
that a prisoner’s right to outdoor exercise is absolute and
indefeasible, or that it trumps all other considerations.” Id.
at 1068. That broader statement aligns with our case law
overall. Far from treating indoor exercise as constitutionally
insufficient as a matter of law, we have treated it as relevant
in determining whether a correctional institution is allowing
for constitutionally sufficient physical exercise.
In evaluating case references to “outdoor exercise,” the
Seventh Circuit’s assessment of our case law thus coincides
with our own:
[C]ases that purport to recognize a right to
outdoor exercise, such as Allen v. Sakai,
40 F.3d 1001, 1003–04 (1994), amended,
48 F.3d 1082 (9th Cir. 1995), and Spain v.
Procunier . . . involve special circumstances,
such as that the prisoners were confined to
their cells almost 24 hours a day and were not
offered alternative indoor exercise facilities
(Allen), or the only alternative offered to the
prisoners was exercise in the corridor outside
their cells rather than in an indoor exercise
facility and the lack of outdoor exercise was
merely one of a number of circumstances that
in the aggregate constituted the infliction of
cruel and unusual punishment [(Spain)].
Anderson v. Romero, 72 F.3d 518, 528 (7th Cir. 1995).

-- 26 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 27
Plaintiffs also identify no other circuit that has adopted
their ironclad “outdoor” exercise requirement either. In fact,
the few analogous cases we have identified have rejected
such claims on the facts before them. Most notably, in
Wilkerson v. Maggio, 703 F.2d 909 (5th Cir. 1983) (per
curiam), and as relevant here, the plaintiff, a maximum-
security inmate, brought an Eighth Amendment claim for
damages based on his confinement for more than seven years
without outdoor exercise and sunshine. Id. at 911–12.
The Fifth Circuit rejected this claim based on the
plaintiff’s opportunities for indoor exercise. Id. at 912. As
the Fifth Circuit explained, “[w]e conclude on this record
that one hour a day of exercise provided on the indoor tier
satisfied the constitutional minimum in this case.” Id.; see
also Anderson, 72 F.3d at 528 (citing Wilkerson with
approval); Green v. Ferrell, 801 F.2d 765, 771–72 (5th Cir.
1986) (setting aside court order requiring jail to provide
outdoor exercise or an indoor exercise facility because
inmates’ ability to exercise in their cells and five hours per
day in a day room was sufficient).
Similarly, in Campbell v. McGruder, 580 F.2d 521 (D.C.
Cir. 1978), the D.C. Circuit set aside a portion of a district
court order requiring a jail to provide at least one hour of
outdoor recreation time daily. See id. at 544–46. While the
court agreed “that the opportunity for some form of
recreation is necessary to protect the mental and physical
health of all pretrial detainees,” it remanded “for a
determination of the quality, duration, and location of this
recreation.” Id. at 546. That was because “there was no
evidence about the necessity for [o]utdoor recreation.” Id.
at 545. The issue, the court explained, was “the quality and
kind of recreation opportunities that must be afforded.” Id.

-- 27 of 38 --

28 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
In Smith v. Dart, 803 F.3d 304 (7th Cir. 2015), the
Seventh Circuit also rejected a pretrial detainee’s challenge
to a lack of outdoor recreation. The Seventh Circuit noted
that “[l]ack of exercise may rise to a constitutional violation
in extreme and prolonged situations where movement is
denied to the point that the inmate’s health is threatened.”
Id. at 313 (quotations omitted). But it explained that “there
is a significant difference between a lack of outdoor
recreation and an inability to exercise.” Id. Because the
plaintiff “d[id] not allege that his movements [were]
restricted to the point that he is unable to exercise inside his
cell or in jail common areas,” the plaintiff “fail[ed] to state a
sufficiently serious constitutional deprivation.” Id.
These precedents from other circuits are consistent with
our observation that “the Constitution requires jail officials
to provide outdoor recreation opportunities, or otherwise
meaningful recreation, to prison inmates.” Shorter, 895 F.3d
at 1185.
2
In light of our precedents, the district court did not err in
denying plaintiffs greater preliminary injunctive relief than
it already issued. In the context of our review of the denial
of a preliminary injunction, “[i]f the district court identifies
the correct legal standard, it will not be reversed simply
because the appellate court would have arrived at a different
result if it had applied the law to the facts of the case.” Doe
v. Kelly, 878 F.3d 710, 719 (9th Cir. 2017) (quotations
omitted). “Rather, the court only abuses its discretion when
its application of the standard is illogical, implausible, or
without support in inferences that may be drawn from the
record.” Id. (quotations omitted). That is not the case here.

-- 28 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 29
After thoroughly reviewing our cases, the district court
correctly explained that “there is no bright line test to
determine if and when inmates are entitled to outdoor
exercise.” The district court also validly determined that the
conditions at CJ5 do not resemble those extreme and
degrading circumstances in which we have required outdoor
exercise. Most inmates in CJ5 spend eight hours per day out
of their cells between free time and programming. They can
exercise in both the day rooms and gyms. And they further
have cell windows that permit in outside natural light, and
gyms that allow in both outside light and ambient air.
The district court reasonably concluded on this record
that inmates were given constitutionally sufficient recreation
time. CJ5 inmates in both general population and
administrative segregation are all offered at least 30 minutes
of exercise time in the gyms seven days a week. And while
inmates in administrative segregation can be limited to
30 minutes of day room time each day due to safety
concerns, general population inmates can access the day
room for 4.5 hours on weekdays and 8 hours on weekend
days.
Even excluding the time in the day room, where at least
some exercise can still take place, the amount of gym time
offered to inmates in CJ5 exceeds the recreation we ordered
in Pierce, which required—without specifying that the
exercise must take place outdoors—that inmates “be
permitted exercise at least twice each week for a total of not
less than 2 hours per week.” 526 F.3d at 1213. Notably, the
inmates in Pierce were otherwise kept in their cells for
twenty-two hours or more each day, see id. at 1212, a far
more severe restriction of physical mobility than the general
population inmates in CJ5 (again, inmates in administrative
segregation face greater restrictions due to security concerns

-- 29 of 38 --

30 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
that plaintiffs do not challenge in this appeal). And while
the Fourteenth Amendment is generally more protective than
the Eighth Amendment, Vazquez, 949 F.3d at 1163, our
decision in Pierce, a Fourteenth Amendment case, see
526 F.3d at 1205, shows that on the facts here, plaintiffs have
not demonstrated that the result under the Fourteenth
Amendment should be different.
We note further that the amount of recreation time
provided to inmates at CJ5 also compares favorably to the
district order we upheld in Spain. There, and when there was
no indication of sufficient indoor exercise opportunities, the
prison was ordered to provide inmates who had been held for
more than four years one hour of outdoor exercise time, five
days a week. Spain, 600 F.2d at 199–200.
Here, by comparison, all inmates in CJ5—regardless of
the duration of their incarceration—are given considerably
more recreation opportunities than in Spain. Between the
day room and the gym, CJ5 administrative segregation
inmates receive at least one hour of recreation time seven
days a week. And general population inmates are allowed at
least 4.5 hours of total recreation time each day during the
week, and at least 8 hours on weekends. Moreover, the
“degrading” conditions in Spain—inmates in “continuous
segregation,” locked in cells “virtually 24 hours every day”
with “minimal” contact with others and no “affirmative
programs of training or rehabilitation,” 600 F.2d at 199—in
no way approximate the conditions in CJ5.
Finally, plaintiffs have not identified any risk of harm,
substantial or otherwise, from having their exercise time take
place indoors, as opposed to outdoors. See Farmer, 511 U.S.
at 828 (“cruel and unusual punishment” under the Eighth
Amendment requires a showing of “a substantial risk of
serious harm”); Demery, 378 F.3d at 1030 (“punishment”

-- 30 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 31
under the Fourteenth Amendment requires a showing of
“harm or disability” that “significantly” exceeds or is
“independent of” the “inherent discomforts of
confinement”). Indeed, plaintiffs in the district court did not
proffer any apparent evidence showing that indoor exercise
caused them harm. That was also not the focus of plaintiffs’
expert testimony.
C
We next turn to plaintiffs’ second constitutional theory
concerning access to direct sunlight. The district court
ordered the City to provide one hour per week of direct
sunlight (which it defined as light “not filtered through a
window”) to inmates in CJ5 who had been incarcerated for
more than four years. Although the City asserts it lacks the
facilities to comply with this requirement, plaintiffs argue
that the district court should have gone further and imposed
a broader preliminary injunction that required three hours of
direct sunlight per week for all inmates incarcerated more
than six weeks. Once again, we conclude that on this record,
the district court did not err insofar as it denied plaintiffs’
request for a more substantial injunction than the one the
court entered.
As an initial matter, plaintiffs have not identified
authority that establishes a constitutional right to a particular
quantum or quality of direct sunlight “not filtered through a
window.” For its part, the City states in its briefing that it
“does not argue that it may constitutionally deny inmates the
ability to experience the sunlight over long periods of time.”
But it maintains it has given inmates sufficient access to
sunlight throughout the day based on the windows in their
cells and the grates in the gym that also allow in outside air.

-- 31 of 38 --

32 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
We need not and do not consider in this case the contours
of any claimed right to direct sunlight not filtered through a
window. That is because even assuming such a right is
cognizable, the plaintiffs on this record did not come forward
with evidence sufficient to demonstrate a causal connection
between their claimed constitutional right and claimed harm.
Under the Eighth Amendment, plaintiffs must show “a
substantial risk of serious harm” that presents an “excessive
risk to inmate health or safety.” Farmer, 511 U.S. at 834,
837. Such an “objectively intolerable risk of harm,” id.
at 846, requires that “the risk must be ‘sure or very likely to
cause serious illness and needless suffering.’” Baze v. Rees,
553 U.S. 35, 50 (2008) (emphasis omitted) (quoting Helling
v. McKinney, 509 U.S. 25, 33 (1993)).
Under the Fourteenth Amendment (and contrary to the
district court’s apparent suggestion otherwise) to show
improper “punishment” plaintiffs must again demonstrate
that the challenged conditions produce a “harm or
disability.” Vazquez, 949 F.3d at 1163 (citing Demery,
378 F.3d at 1029); see also Bell, 441 U.S. at 538–39. That
harm “must either significantly exceed, or be independent
of, the inherent discomforts of confinement.” Vazquez,
949 F.3d at 1163 (quoting Demery, 378 F.3d at 1030).
Consistent with these requirements, courts have rejected
constitutional claims when the plaintiffs did not demonstrate
sufficiently serious harm from the allegedly unconstitutional
conditions of confinement. For example, in Rhodes v.
Chapman, 452 U.S. 337 (1981), the Supreme Court
considered an Eighth Amendment challenge to a prison’s
practice of housing two inmates in 63-square feet single
cells. While the district court had found this practice
unconstitutional, the Supreme Court disagreed because “[i]n
view of the District Court’s findings of fact, its conclusion

-- 32 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 33
that double celling at [the prison] constitutes cruel and
unusual punishment is unsupportable.” Id. at 347. While
acknowledging that many inmates were incarcerated for
long periods of time and spent most of their time in their
cells, there was no evidence in the record showing that
double celling “inflicts unnecessary or wanton pain.” Id.
at 348.
Justice Brennan wrote separately in Rhodes to emphasize
this same point. See id. at 352–68 (Brennan, J., concurring
in the judgment). As Justice Brennan explained, “[a] court
is under the obligation to examine the actual effect of
challenged conditions upon the well-being of the prisoners.”
Id. at 367. In Rhodes, Justice Brennan went on, the district
court “was unable to identify any actual signs that the double
celling . . . has seriously harmed the inmates,” and “indeed,
the court’s findings of fact suggest that crowding at the
prison has not reached the point of causing serious injury.”
Id. at 367–68.
Consistent with Rhodes, various other cases have
rejected Eighth Amendment condition of confinement
claims when the plaintiffs failed to show that the challenged
conditions created harm at the required levels. See, e.g.,
LeMaire, 12 F.3d at 1457 (reversing injunction prohibiting
use of restraints when “[t]here is no evidence in the record
LeMaire has suffered any serious injury as a result of this
practice” or that it “create[d] a sufficiently unsafe
condition”); Williams v. Shah, 927 F.3d 476, 481 (7th Cir.
2019) (affirming judgment against inmate who failed to
show “a substantial risk of serious harm” from the prison’s
policy of serving two meals per day); Kelley v. Hicks,
400 F.3d 1282, 1285 (11th Cir. 2005) (per curiam)
(affirming judgment against inmate who “offer[ed] no
evidence to show that his headaches were causally linked to

-- 33 of 38 --

34 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
his exposure” to secondhand smoke); Scott v. District of
Columbia, 139 F.3d 940, 942–43 (D.C. Cir. 1998) (reversing
injunction in favor of inmate who “failed to demonstrate a
causal relationship between his conditions and an increased
risk of harm to him from second-hand smoke”); Davenport
v. DeRobertis, 844 F.2d 1310, 1316–17 (7th Cir. 1988)
(reversing injunction requiring three showers per week in the
absence of evidence that one shower per week “endanger[ed]
the[] physical or mental health” of inmates).
Applying these principles, we hold that on this record,
plaintiffs have not shown a likelihood of success on their
“direct sunlight” claim given the district court’s extensive
factual findings, following an evidentiary hearing, that
plaintiffs and their expert had not demonstrated a risk of
material harm to human health arising from the light
exposure in CJ5. At the preliminary injunction stage, we
review the district court’s factual findings for clear error.
State v. U.S. Dep’t of State, 996 F.3d 552, 560 (9th Cir.
2021). In this case, the record amply supports the district
court’s factual determinations about the lack of compelling
medical evidence.
After surveying Dr. Zeitzer’s opinions and testimony
and pointing out his limited base of knowledge—Dr. Zeitzer
was not a medical doctor, had not treated or examined the
plaintiffs, had not visited their facilities, and did not rely on
“any specific medical data” pertaining to them—the district
court found that “[t]he evidence in the record at this point is
inconclusive as to whether the lack of access to direct
sunlight creates a medical risk.”
That conclusion was firmly rooted in the evidence. The
district court recounted Dr. Zeitzer’s testimony that
“generally, the source or type of light (sunlight vs. artificial
light) did not make a difference,” and that “[s]unlight filtered

-- 34 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 35
through windows” typically “supplies sufficient light.” The
district court noted further that Dr. Zeitzer had “opined that
the type of light that a person receives generally does not
matter, as long as the light source does not filter out certain
types of light, and [Dr.] Zeitzer does not know what type of
light inmates receive.” What was important, therefore, per
Dr. Zeitzer, was the “difference between light at night and
light during the day,” not “the total amount of light a person
receives.” And there was no evidence in the record showing
the difference between daytime and nighttime light exposure
in CJ5.
Between Dr. Zeitzer’s opinions and the evidence that
inmates in CJ5 did receive natural light exposure through
windows in their cells and openings in the gym, the district
court reasonably concluded that “[t]o the extent that
Plaintiffs claim harm from lack of direct sunlight, as opposed
to lack of a sufficient difference between light at night and
light during the day, the evidence does not support that
claim.” And the court likewise reasonably concluded from
the record that the plaintiffs “do not meet their burden to
show that the conditions caused their physical problems
because the evidence at this time does not show causation
between the lack of direct sunlight and the medical
problems.”
As the district court therefore succinctly and permissibly
summed up: “The Court finds that there is currently
insufficient evidence, even accepting the opinion of
Plaintiffs’ expert witness, to determine if the amount of light,
type of light, and variance between light during the day and
night supports Plaintiffs’ claim of harm.” That finding was
soundly based in the evidence and not clearly erroneous.
We express no views on the City’s other arguments
because the district court’s factual findings on the lack of any

-- 35 of 38 --

36 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
demonstrated causal harm provide a sufficient basis for
concluding that plaintiffs on this record failed to show a
likelihood of success on a “direct sunlight” theory. We hold
that plaintiffs at a minimum have not shown that the district
court erred in declining to grant plaintiffs broader relief than
it did. And for the same reasons, plaintiffs on this record
have not demonstrated the required irreparable harm to
warrant a preliminary injunction. Winter, 555 U.S. at 20.
IV
The remainder of plaintiffs’ cross-appeal challenges the
district court’s Rule 12(b)(6) dismissal of the San Francisco
Sheriff’s Department as a superfluous defendant and the
individual defendants on qualified immunity grounds.
Plaintiffs do not argue they could independently appeal the
district court’s Rule 12(b)(6) order, nor could they. Orders
dismissing some defendants or claims, but not all, are
ordinarily not immediately appealable. See Hyan v.
Hummer, 825 F.3d 1043, 1046 (9th Cir. 2016) (per curiam);
Maurer v. L.A. Cnty. Sheriff’s Dep’t, 691 F.2d 434, 436 n.1
(9th Cir. 1982). Thus, plaintiffs instead argue we may
exercise “pendent appellate jurisdiction” on the theory that
the Rule 12(b)(6) dismissals are “inextricably intertwined”
with the preliminary injunction order, which we do have
jurisdiction to review under 28 U.S.C. 1292(a). Plaintiffs err
in relying on the doctrine of pendent appellate jurisdiction.
Pendent appellate jurisdiction permits us to review
certain interlocutory orders, not otherwise appealable, if the
issues are either “‘inextricably intertwined’ with or
‘necessary to ensure meaningful review of’ decisions over
which we have jurisdiction.” Meredith v. Oregon, 321 F.3d
807, 812 (9th Cir. 2003), amended, 326 F.3d 1030 (9th Cir.
2003) (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S.
35, 51 (1995)).

-- 36 of 38 --

NORBERT V. CITY & CNTY. OF SAN F RANCISCO 37
Whether two issues are “inextricably intertwined” is
“narrowly construed.” Meredith, 321 F.3d at 813. We have
held that “[t]wo issues are not ‘inextricably intertwined’ if
we must apply different legal standards to each issue.” Id.
at 814 (quoting Cunningham v. Gates, 229 F.3d 1271, 1285
(9th Cir. 2000)). Instead, “the legal theories on which the
issues advance must either (a) be so intertwined that we must
decide the pendent issue in order to review the claims
properly raised on interlocutory appeal, or (b) resolution of
the issue properly raised on interlocutory appeal necessarily
resolves the pendent issue.” Id. (quoting Cunningham,
321 F.3d at 1285); see also Puente Arizona v. Arpaio,
821 F.3d 1098, 1109 (9th Cir. 2016).
The requirements for pendent appellate jurisdiction are
not met here. Whether the Sheriff’s Department is a separate
legal entity has no legal or factual commonalities with the
preliminary injunction. Similarly, the legal standard and
some of the relevant facts governing qualified immunity are
different from the analysis we perform in determining
whether plaintiffs are entitled to a preliminary injunction. In
neither case do we need to decide these pendent issues to
consider plaintiffs’ cross-appeal of the preliminary
injunction order, nor does our resolution of that cross-appeal
necessarily resolve the allegedly pendent issues. Meredith,
321 F.3d at 814. It is also not necessary to decide the
pendent issues in order meaningfully to review the
preliminary injunction order. Id.
We therefore lack appellate jurisdiction to consider the
merits of the district court’s order dismissing the Sheriff’s
Department and the individual defendants.
* * *

-- 37 of 38 --

38 NORBERT V. CITY & CNTY. OF SAN F RANCISCO
For the foregoing reasons, we dismiss the City’s appeal
as moot. As to the plaintiffs’ cross-appeal, we affirm in part
and dismiss in part for lack of jurisdiction. The parties shall
bear their own costs on appeal.
AFFIRMED IN PART AND DISMISSED IN PART.

-- 38 of 38 --