                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                     September 15, 2008
                                  TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 AHMED M. AJAJ,

          Plaintiff-Appellant,
 v.                                                        No. 07-1073
 UNITED STATES OF AMERICA,                     (D.C. No. 03-CV-1959-MSK-PAC)
 ROBERT A. HOOD, JAMES                                     (D. Colo.)
 BURRELL, DAVID DUNCAN, R.
 WILEY, in his official capacity, and
 MICHAEL NALLEY, in his official
 capacity,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.


      Plaintiff Ahmed M. Ajaj is a federal prisoner incarcerated at the

Administrative Maximum United States Penitentiary in Florence, Colorado (ADX).

In this prisoner civil rights action, brought pursuant to 28 U.S.C. § 1331 and Bivens, 1

Plaintiff challenges the conditions of his confinement at ADX, as well as the United


      *
        This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. The Court will, however,
permit citation of this decision for its persuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.
      1
       See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).
States Bureau of Prisons’ (BOP) failure to provide him notice of, or a hearing

concerning, his transfer to ADX in 2002. See Simmat v. U.S. Bureau of Prisons, 413

F.3d 1225, 1230-32 (10th Cir. 2005). Plaintiff appeals from the district court’s

December 22, 2006 Order Granting Qualified Immunity and Dismissing Claims. We

affirm in part, reverse in part, and remand.

                                          I.

      Because the district court accurately and thoroughly set forth this case’s

extensive facts and procedural history, we only set forth this matter’s background to

the extent necessary to resolve this appeal. See Ajaj v. United States, No. 03-CV-

1959-MSK-PAC, 2006 WL 3797871, at *1-5 (D. Colo. Dec. 22, 2006). Plaintiff

sued all Defendants in their individual and official capacities, alleging, as relevant

here, four claims. Third Am. Compl. ¶8. First, Plaintiff asserted Defendant United

States violated the Federal Tort Claims Act (FTCA) in negligently failing to house

him in a low-altitude and smoke-free environment contrary to medical instructions

(Claim 1). Second, Plaintiff averred Defendants Hood, Burrell, Wiley, and Nalley

(the Federal Officers) violated the Eighth Amendment by failing to protect Plaintiff

from an unreasonable risk of harm by failing to move him to a low altitude, smoke-

free housing assignment, contrary to prescribed medical instructions (Claim 2).

Third, Plaintiff claimed that the Federal Officers violated the Eighth Amendment by

acting with deliberate indifference to Plaintiff’s conditions of confinement at ADX

(i.e., limitations on his property rights, mail, access to telephones and recreation,

                                          2
lock-down 23 hours per day, extreme isolation, imposition of discipline for minor

offenses, noise, and the indefinite nature of his confinement) (Claim 3(A)). Fourth,

Plaintiff asserted Defendant Hood deprived him of a liberty interest by transferring

Plaintiff to ADX without notice or a hearing, and also by continuing to confine him

there for an indefinite duration without the ability to meaningfully challenge his

placement (i.e.,without admittance to ADX’s “step-down program”) (Claim 3(B)). 2

Therein, Plaintiff sought compensatory damages and injunctive relief. Third Am.

Compl. at 17-18.

      The Federal Officers moved for summary judgment on “all claims.” App. at

178. The district court subsequently issued an Order Granting Qualified Immunity

and Dismissing Claims. The Order granted the Federal Officers’ motion in its

entirety, save Plaintiff’s official capacity claim under Claim 3(B) to the extent it

sought admittance to ADX’s step down program. Ajaj, 2006 WL 3797871, at *12

(stating that the “sole claim remaining for trial is Claim 3(B) (denial of procedural

due process with regard to ADX step downs) against [the Federal Officers] . . . in



      2
         As the district court explained:
       ADX has a stratified housing system which allows inmates to progress
       through a step-down program from the most restrictive to the least
       restrictive housing assignment . . . . Ordinarily, inmates are
       automatically assessed every six months for purposes of determining
       whether they should progress . . . . [Plaintiff] contends that he has
       repeatedly been denied step downs [despite meeting all of the step down
       criteria as of January 2005] . . . .
Ajaj, 2006 WL 3797871, at *5.

                                         3
their official capacities.” (emphasis added)). On January 4, 2007, BOP placed

Plaintiff in ADX’s step-down program. As such, the parties submitted a Fed. R. Civ.

P. 41(a)(1)(ii) stipulation to dismiss Claim 3(B). 3 Ajaj, No. 03-CV-1959-MSK-PAC,

Doc. #270, at ¶9 (filed 2/22/07) (agreeing that Plaintiff’s placement in ADX’s step-

down unit program meant he had obtained “the remedy available pursuant to the . . .

December 22, 2006 Order . . . under [C]laim 3(B)”). Pursuant to the parties’

stipulation, the district court dismissed Claim 3(B) without prejudice and directed

the clerk to close the case. See Ajaj, No. 03-CV-1959-MSK-PAC, Doc. #271, at 1

(filed 2/23/07). Plaintiff appeals.

                                        II.

      We review “de novo a district court’s decision regarding qualified immunity.”

Amundsen v. Jones, 533 F.3d 1192, 1198 (10th Cir. 2008). Under the summary

judgment standard, we generally review the evidence in the light most favorable to

the nonmoving party. See Nelson v. McMullen, 207 F.3d 1202, 1205 (10th Cir.


      3
         The district court’s February 23, 2007 Order dismissed Claim 3(B) without
prejudice. On February 20, 2007, Plaintiff filed a Notice of Appeal providing that
“Plaintiff . . . hereby appeal [sic] . . . from an Order Granting Qualified Immunity
and Dismissing Claims entered in this action on the 22nd day of December, 2006.”
Because Claim 3(B) remained viable in the district court, , however, Plaintiff’s
Notice of Appeal was premature. See Heimann v. Snead, 133 F.3d 767, 768-69 (10th
Cir. 1998). Accordingly, we issued a jurisdictional show cause order. The district
court — at the parties’ request — subsequently dismissed Plaintiff’s Claim 3(B) with
prejudice. As such, Plaintiff’s February 20, 2007 Notice of Appeal ripened with the
district court’s entry of its dismissal of Claim 3(B). Ruiz v. McDonnell, 299 F.3d
1173, 1180 (10th Cir. 2002); Lewis v. B.F. Goodrich Co., 850 F.3d 641, 645-46
(10th Cir. 1988) (en banc).

                                         4
2000). Yet, when “qualified immunity is raised in a summary judgment motion, . .

. [this Court applies] special rules to determine whether the motion was properly

granted or denied.” Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004)

(quotations omitted).    Because the Federal Officers raised qualified immunity,

Plaintiff “bears the initial burden of proving”: (1) the Federal Officers’ conduct

violated a constitutional right; and (2) this right was clearly established at the time

the conduct at issue occurred. Amundsen, 533 F.3d at 1198. If Plaintiff makes this

showing, the burden shifts back to the Federal Officers to demonstrate no genuine

issues of material fact exist and they are entitled to judgment as a matter of law. Id.

The Federal Officers prevail, however, if Plaintiff fails to carry the initial twofold

burden. Id. To be clear, a “qualified immunity defense is only available to parties

sued in their individual capacity.” Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir.

2005); Hammons v. Saffle, 348 F.3d 1250, 1257 (10th Cir. 2003). Hence, on

summary judgment, official capacity claims for prospective injunctive relief are

subject to normal Fed. R. Civ. P. 56(c) standards.

                                         III.

      Plaintiff first argues that the district court erred in granting summary judgment

to the Federal Officers on his Eighth Amendment failure to protect claim (Claim 2).

Claim 2 averred that the Federal Officers failed to act in accordance with prescribed

medical treatment or exposed Plaintiff to an unreasonable risk of harm by not

moving him to a low-altitude and smoke-free prison assignment. Plaintiff contends

                                          5
that, contrary to the district court’s conclusion, he marshaled sufficient evidence to

withstand summary judgment. The Federal Officers, however, maintain Plaintiff

failed to demonstrate their conduct violated Plaintiff’s constitutional rights.

      To establish an Eighth Amendment inadequate medical care claim, Plaintiff

must establish that the Federal Officers acted with “deliberate indifference to an

inmate’s serious medical needs.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005);

see Estelle v. Gamble, 429 U.S. 97, 103 (1976). Deliberate indifference in the

Eighth Amendment context encompasses an objective and subjective prong. Namely,

“the plaintiff must show that he is incarcerated under conditions posing a substantial

risk of serious harm, the objective component, and that the prison official was

deliberately indifferent to his safety, the subjective component.”            Smith v.

Cummings, 445 F.3d 1254, 1257 (10th Cir. 2006) (quotation omitted). Hence, to

satisfy the objective prong, Plaintiff must demonstrate that the medical needs he

avers the Federal Officers neglected are “sufficiently serious” to satisfy the objective

element.   Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006).            Meeting the

subjective prong requires Plaintiff demonstrate “sufficiently culpable” states of mind

on the Federal Officers’ part. Id.

      “A medical need is serious if it has been diagnosed by a doctor or is one that

has been diagnosed by a physician as mandating treatment or one that is so obvious

that even a lay person would easily recognize the necessity for a doctor’s attention.”

Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (quotation omitted)

                                           6
(“Conduct which, at most, is medical malpractice redressable in state court does not

represent cruel and unusual punishment.”). Failure to act in accordance with or

intentional interference with prescribed medical treatment or instructions can give

rise to an Eighth Amendment claim. Estelle, 429 U.S. at 104-05.

      First, Plaintiff has failed to satisfy the objective prong regarding ADX’s

altitude. Like the district court, our review of the record reveals no evidence that the

Federal Officers contravened medical instructions by placing and continuing to house

him at ADX, rather than at a low-altitude prison. A 1998 “Transfer Summary” —

signed by a psychiatrist and psychologist at BOP’s medical facility in Springfield,

Missouri, following Plaintiff’s left pneumonectomy — is not to the contrary. That

record provides: “[Plaintiff] will experience limited exercise capacity at facilities

more than 2,000 feet above sea level and should be considered for facilities with

elevations lower than that.” App. at 593 (emphasis added). While the 1998 record

recommended Plaintiff be considered for a low-altitude housing assignment, the

physicians in no way indicated that such a placement was medically necessary or

otherwise required. Hence, Plaintiff’s placement and continued confinement at ADX

does not contravene medical instructions or pose an unreasonable risk of harm.

      Indeed, Plaintiff’s treating physician at ADX never indicated that Plaintiff’s

health required a low-altitude housing placement. Although BOP authorized Plaintiff

to undergo pulmonary function testing by an independent pulmonologist, the

procedure yielded normal results, indicating that Plaintiff was “adequately

                                           7
compensating at [ADX’s] altitude.” App. at 588. Other medical records reveal that

Plaintiff’s treating physician at ADX considered him to generally be in “excellent

health.” App. at 579; see also id. at 555-56, 626-27. Finally, Plaintiff’s own

medical expert opined in his deposition testimony that he “d[id] not believe

[Plaintiff] need[ed] to be moved to a lower altitude.” 4 App. at 729 (deposition

testimony of Dr. Dennis Clifford). As such, the Federal Officers are entitled to

qualified immunity in regard to Plaintiff’s Eighth Amendment claim related to

ADX’s altitude.

      Second, even assuming without deciding Plaintiff sufficiently evidenced that

his exposure to second-hand or environmental tobacco smoke (ETS) at ADX, before

it became a smoke-free facility, was sufficiently serious to meet the objective prong

of the Eighth Amendment test, qualified immunity in regard to this claim is also

appropriate. 5 See United States v. Hasan, 526 F.3d 653, 663 (10th Cir. 2008) (noting

      4
         We note that, in addressing Plaintiff’s physical and mental health, his
January 25, 2005 BOP Progress Report notes — without any further explanation —
he has “an altitude restriction.” App. at 695. The district court’s order makes no
reference to this document. Because (1) neither party mentions or explains the
significance of this reference, and (2) there is a dearth of evidence that Plaintiff
required a low-altitude housing assignment, the annotation in the Progress Report
does not give us pause. See Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir.
2000) (“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.”).
      5
         We note that the district court found ADX became a smoke-free facility in
July 2005, while the Federal Officers maintain “ADX became a smoke-free facility”
in November 2004.” Compare Ajaj, 2006 WL 3797871, at *4, with Appellees’ Resp.
Br. at 8. Because this factual discrepancy is not outcome determinative here, we
                                                                         (continued...)

                                         8
that we may “affirm a district court for any reason supported by the record”).

Plaintiff simply has not shown the Federal Officers acted with deliberate indifference

to his requests for a smoke-free environment. Undoubtedly, the record evidences

medical instructions that Plaintiff should be placed in non-smoking housing. See

App. at 556, 569-70, 579, 591; see also id. at 729. In response to Plaintiff’s

complaints of smelling ETS in his cell, his treating physician at ADX, Dr. Leyba,

was unable to confirm or disprove Plaintiff’s symptoms of reactions to ETS. He

recommended Plaintiff be moved to a non-smoking unit in ADX. Id. Though not

dispositive, given ADX’s unique role in the federal prison system, we believe the

fact Dr. Leyba never sought a medical transfer for Plaintiff out of ADX on Plaintiff’s

behalf notable.

       Further, far from ignoring Plaintiff’s complaints, or the recommendations of

Dr. Leyba, the Federal Officers responded by investigating Plaintiff’s complaints and

trying to accommodate his needs, within the high-security ADX setting. App. at 417

(noting that ADX “is the most secure prison in the federal system” with “unique

security and control procedures”).     For instance, Defendant Duncan, an ADX

Associate Warden, testified that he responded to Plaintiff’s complaints by

coordinating with ADX’s facilities personnel and Plaintiff’s ADX physician. With

their aid, Defendant Duncan undertook an investigation into whether Plaintiff could



(...continued)
decline to resolve it. See Cooperman, 214 F.3d at 1164.

                                          9
— as he maintained — be exposed to ETS and, if so, how to minimize any such

exposure. App. at 587. Defendant Duncan testified that the investigation revealed

that ADX’s air filtration system was such that Plaintiff could be exposed to ETS.

App. at 587 (explaining that four cells are connected together and that ETS could

pass between the cells). Accordingly, Duncan stated no inmates who smoked were

housed in any of the three cells adjoining Plaintiff’s cell.

      Additionally, in early 2003, ADX installed air filters in Plaintiff’s cell.

Plaintiff’s Unit Manager noted in a memo to Defendant Burrell that Plaintiff told the

ADX Facilities Manager that, although he continued to complain about ETS, “the

filter had helped him.” App. at 667. Further, Defendant Hood testified to the best

of his knowledge Plaintiff was placed “on a range with either no smokers or, if any,

[Plaintiff was placed] at the far end of the range” where the cells’ configuration

precluded his exposure to ETS. App. at 650. True, a June 2004 memo from a BOP

official to an ADX administrator continued to draw attention to this issue. But the

document reflects that the official’s concern, regarding Plaintiff not having been

assigned to a smoke-free unit, was driven more by Plaintiff’s litigiousness than by

concern for his ETS exposure. Id. at 588; see generally Self v. Crum, 439 F.3d 1227,

1232 (10th Cir. 2006) (“A claim is . . . actionable only in cases where the need for

additional treatment . . . is obvious.” (emphasis added)).

      In short, the record adduces no indication the Federal Officers disregarded “a

known or obvious consequence” of their actions, Bd. of County Comm’rs of Bryan

                                          10
County v. Brown, 520 U.S. 397, 410 (1997), nor “an excessive risk to [Plaintiff’s]

health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Estelle,

429 U.S. at 105-06 (inadvertence does not satisfy the subjective prong of an Eighth

Amendment claim regarding federal officers’ conduct); cf. Self, 439 F.3d at 1232

(subjective deliberate indifference would be demonstrated where “e.g., a patient

complains of chest pains and the prison official, knowing that medical protocol

requires referral or minimal diagnostic testing . . . [nevertheless] sends the inmate

back to his cell.”). As such, Plaintiff cannot satisfy the subjective prong of our

Eighth Amendment analysis and the Federal Officers are entitled to qualified

immunity on this claim. See Self, 439 F.3d at 1232-33.

                                         IV.

      Plaintiff also appeals the district court’s sua sponte dismissal of his claim

under the Federal Tort Claims Act (Claim 1). In support of his position, Plaintiff

points to medical instructions that stated he “would function better” in a low-altitude

environment and should be assigned to smoke-free housing. See Appellant’s Br. at

33. The district court dismissed Claim 1 sua sponte, deeming it premised on the

same facts as Claim 2. Ajaj, 2006 WL 3797871, at *12; see also supra Part.III.

Whether the district court made this determination under the motion to dismiss

standard, or pursuant to the summary judgment standard, is unclear from the district

court’s cursory ruling. See id.

      Under the FTCA, the law of the place where the allegedly negligent or

                                          11
wrongful act occurred “determines the legal basis for liability.” See Gundy v. United

States, 728 F.2d 484, 487 (10th Cir. 1984). Here, Colorado law governs and directs

that, as with any common law negligence claim, “a claimant alleging negligence of

another party must establish the existence of a duty, a breach of that duty, causation,

and damages.” Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 80 (Colo.

2001) (en banc). We have previously stated that while “Colorado courts have not yet

addressed whether prison officials owe a duty of care to inmates regarding their

medical needs,” if specifically presented with the question, we believe Colorado law

would impose a duty of care on prison officials to “protect[] inmates’ health and

safety.” Kikumura v. Osagie, 461 F.3d 1269, 1301 (10th Cir. 2006), abrogated on

other grounds by Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007); see also

Restatement (Second) of Torts §!! 314(a)(4) (1965).

      Regarding Plaintiff’s need for a low-altitude placement, as discussed above,

the record is devoid of medical records recommending such an accommodation. In

contrast, the record reflects that Plaintiff’s treating physician at ADX clearly

recommended Plaintiff reside in a smoke-free unit. As a general matter, prison

administrators do not breach their duty of care when an inmate is placed in an

environment where that inmate will be exposed to ETS in reasonable quantities. See

Friedman v. United States, 87 F. App’x 459, 462 (6th Cir. 2003) (finding no

negligence in prison officials’ failure to prevent inmate’s exposure to ETS where no

evidence existed that exposure to smoke exacerbated inmate’s pre-existing medical

                                          12
condition). But where an inmate possesses an obvious medical need for housing in

a smoke-free environment, and prison administrators fail to respond to that need, the

inmate may have a viable negligence claim as a result of the alleged breach of care.

As such, an FTCA inmate-plaintiff alleging a particular medical need for smoke-free

housing, like Plaintiff, may potentially demonstrate a breach of the duty of care when

the United States fails to place that inmate in a completely smoke-free environment.

      Here, Plaintiff alleges the United States breached that duty when he was not

placed in a completely smoke-free environment, and that this breach was the “direct

and proximate cause of serious, permanent and continuing injuries to Mr. Ajaj.”

Third Am. Compl. ¶70; see also id. ¶¶63-64, 66. The record reflects ADX personnel

attempted to discern and minimize Plaintiff’s exposure to ETS. See supra Part. III.

But the record was only developed in relation to Plaintiff’s other claims (i.e., the

claims at issue in the Federal Officers’ summary judgment motion), not his FTCA

claim. Further, whether the district court’s short and vague sua sponte dismissal of

Claim 1 employed the motion to dismiss standard, or the summary judgment

standard, remains unclear. In any event, concluding that these alternative steps

foreclose Plaintiff’s claim, at this juncture, would ignore the basic allegation

Plaintiff asserts in his FTCA claim regarding ETS, i.e., that regardless of any other

accommodations the prison administrators made, the United States breached its duty

of care by not placing Plaintiff in completely smoke-free housing. See Third Am.

Compl. ¶70.

                                         13
      The district court may ultimately conclude ADX personnel acted reasonably,

and find that by investigating Plaintiff’s complaints, placing non-smoking inmates

in the cells adjoining Plaintiff’s, and installing a special air filter, the United States

satisfied the duty owed to Plaintiff. But whether anything short of placing Plaintiff

in a completely smoke-free environment was a breach of Defendants’ duty of care

may not be adjudged at this early stage of litigation. 6 We therefore conclude

Plaintiff’s allegations are adequate to warrant further proceedings on Claim 1.

                                           V.

      Next, Plaintiff appeals the district court’s ruling on his Eighth Amendment

conditions of confinement claim (Claim 3(A)). Claim 3(A) asserts that the following

conditions of Plaintiff’s ADX confinement amount to “atypical and significant

hardships,” as compared to the general population: (1) limitations on his property

rights, mail, access to telephones, and recreation; (2) lock-down for 23 hours per day

in extreme isolation; (3) imposition of discipline for minor offenses; (4) noise;


      6
          For clarity’s sake, we note that concluding Plaintiff’s FTCA claim remains
tenable is entirely consistent with concluding that his Eighth Amendment deliberate
indifference claim is appropriate for summary judgment. To sustain an Eighth
Amendment deliberate indifference claim a “plaintiff must show that he is
incarcerated under conditions posing a substantial risk of serious harm . . . and that
the prison official was deliberately indifferent to his safety.” See supra Part. III
(emphasis added) (quoting Smith, 445 F.3d at 1257). We concluded above that ADX
personnel’s efforts to minimize Plaintiff’s ETS exposure demonstrated they did not
act with deliberate indifference to Plaintiff’s requests for a smoke-free environment
(i.e., the second requirement of an Eighth Amendment claim). The FTCA, of course,
does not implicate any such inquiry into prison officials’ “state of mind.” See
Kikumara, 461 F.3d at 1293; see also id. at 1301.

                                           14
(5) lights which remain on in his cell 24 hours per day; and (6) his indefinite

confinement at ADX.

         “The Eighth Amendment’s prohibition of cruel and unusual punishment

imposes a duty on prison officials to provide humane conditions of confinement,

including adequate food, clothing, shelter, sanitation, medical care, and reasonable

safety from serious bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.

2008).     As stated above, Plaintiff bears the burden of showing, first, that his

conditions of confinement are, objectively, sufficiently serious, and, second, that the

Federal Officers were deliberately indifferent to his safety. See id. The district

court granted summary judgment to the Federal Officers, concluding Plaintiff failed

to show that the conditions of his ADX confinement are sufficiently serious.

Specifically, the district court noted that, although Plaintiff took issue with numerous

conditions of his confinement, his summary judgment response referenced record

evidence only in regard to his limited ability to exercise outdoors and his indefinite

confinement at ADX. Ajaj, 2006 WL 3797871, at *9. The district court ultimately

deemed Plaintiff’s evidence of these conditions inadequate to withstand summary

judgment. See id.

         On appeal, Plaintiff contends that his deposition testimony, which he

submitted as an attachment to his summary judgment response, evidenced all the

conditions of confinement set forth in Claim 3(A). Principally, Plaintiff’s briefing

underscores his restricted access to outdoor exercise and the indefinite nature of his

                                          15
detention at ADX. The Federal Officers respond that the conditions of confinement

Plaintiff complains of are not, as a matter of law, sufficiently serious to maintain his

Eighth Amendment claim.

      Undoubtedly:

      It is important to consider the conditions of confinement as a whole
      because several deprivations “in combination” may constitute a
      constitutional violation “when they have a mutually enforcing effect
      that produces the deprivation of a single, identifiable human need such
      as food, warmth, or exercise-for example, a low cell temperature at
      night combined with a failure to issue blankets.”


Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996) (quoting Wilson v. Seiter,

501 U.S. 294, 304 (1991)). But equally true is that “[n]othing so amorphous as

‘overall conditions’ can rise to the level of cruel and unusual punishment when no

specific deprivation of a single human need exists.” Wilson, 501 U.S. at 305; accord

Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) (“Some conditions of

confinement may establish an Eighth Amendment violation in combination when

each alone would not do so. This is true when the deprivations have a mutually

enforcing effect which produces the deprivation of a single, identifiable human need,

such as food or warmth . . . .”).

      Quite simply, save Plaintiff’s allegations regarding his access to exercise, the

conditions of confinement he avers do not, even taken together, constitute the sort

of “significant departure from the healthy habilitative environment the state is

required to provide its inmates.” See Mitchell, 80 F.3d at 1442; see, e.g., Ramos v.

                                          16
Lamm, 639 F.2d 559, 568 (10th Cir. 1980) (inmate must be provided with

“reasonably adequate ventilation, sanitation, bedding, hygienic materials, and

utilities (i.e., hot and cold water, light, heat, plumbing)”). Compare Gillis, 468 F.3d

at 493 (ruling qualified immunity inappropriate on Wisconsin supermax

inmate/plaintiff’s Eighth Amendment claim where conditions of his confinement

included:   “denial of shelter, heat, and hygiene items implicated an inmate's

constitutional rights”), with Third Am. Compl. ¶73, and Ruark v. Solano, 928 F.2d

947, 949 (10th Cir. 1991) (concluding an inmate’s allegations that his cell was small

and noisy, that his movement outside his cell was severely restricted, and that he

enjoyed very limited visitation did not implicate the Eighth Amendment).

      Regarding Plaintiff’s access to exercise, we recognize:

      that some form of regular outdoor exercise is extremely important to the
      psychological and physical well being of inmates, and some courts have
      held a denial of fresh air and exercise to be cruel and unusual
      punishment under certain circumstances.


Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006) (quotation omitted); see also

Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) (“Although no precise

standards have been set forth delineating what constitutes constitutionally sufficient

opportunities for exercise, the right to some exercise was clearly established at the

time of Mr. Housley's confinement.”), abrogated on other grounds by Lewis v.

Casey,518 U.S. 343 (1996); Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987)

(while restrictive, limiting inmate, who was assigned to high-security segregation

                                          17
unit, to one hour per week in outdoor exercise facility, without more, did not rise to

level of an Eighth Amendment violation).

      Here, Plaintiff asserts he was denied access to outdoor recreation his first year

at ADX. But this deprivation of outdoor recreation is not sufficiently serious to

implicate the Eighth Amendment. See Fogle, 435 F.3d at 1260 (holding that “a

factfinder might conclude that the risk of harm from three years of deprivation of

any form of outdoor exercise was obvious and that [prison] officials disregarded that

risk by keeping Fogle in administrative segregation” (emphasis added)); see also

Bailey, 828 F.2d at 653 (recognizing that courts have not deemed the denial of fresh

air and exercise to be a “per se” Eighth Amendment violation).

      Plaintiff also argues that, even after his first year at ADX, he is inconsistently

afforded outdoor recreation. He asserts outdoor recreation is regularly cancelled due

to inclement weather or staffing issues. Even assuming such allegations implicate

the Eighth Amendment, the record clearly reflects that Plaintiff regularly declined

opportunities to recreate outdoors. App. at 736 , 739-805. As such, Plaintiff failed

to evidence a constitutional violation and, thus, the Federal Officers are entitled to

qualified immunity on Claim 3(A).

                                         VI.

      Lastly, Plaintiff maintains that his procedural due process claims related to his

2002 transfer to ADX (Claim 3(B)) — the first against Defendant Hood in his


                                          18
individual capacity for monetary damages, and the second against Defendants Hood,

Nalley, and Wiley, in their official capacities for injunctive relief — remain viable. 7

For the reasons that follow, we conclude that none of Plaintiff’s procedural due

process claims can withstand summary judgment. 8

                                          A.

      Plaintiff appeals the district court’s grant of qualified immunity to Defendant

Hood regarding his 2002 transfer to ADX.           Therein, Plaintiff argues that his

protected liberty interest in avoiding assignment to ADX was clearly established in

2002, thus entitling him to some form of legal process before his transfer. See



      7
          The Federal Officers also argue that Plaintiff’s due process claim against
Defendant Hood must fail because he was not personally involved in Plaintiff’s
transfer to ADX. Because, as discussed below, we conclude Plaintiff’s due process
claims fail in any event, we need not reach this issue.
      8
         Because confusion remained regarding the nature, contours, and continued
viability of Plaintiff’s official capacity due process claim, we ordered the parties to
clarify their positions on the issue. In their supplemental response, the Federal
Officers raise — for the first time in this litigation — Ajaj v. Smith, 108 F. App’x
743 (4th Cir. 2004) (per curiam). The Federal Officers argue that issue preclusion
or collateral estoppel precludes our consideration of Plaintiff’s due process claims.
Plaintiff replies that the Federal Officers waived the affirmative defense because they
failed to timely assert it, noting that he referenced the District of South Carolina
case’s docket number in his response to the Federal Officers’ request for production
of documents. A party’s failure to raise the affirmative defense of issue preclusion
generally waives the issue. See Fed. R. Civ. P. 8(c); see also Pittsburg County Rural
Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 708 n.4 (10th Cir. 2004). We
have no difficulty concluding here that the Federal Officers waived the res judicata
issue by — inexplicably — failing to apprise the Court of the Fourth Circuit’s
decision until the thirteenth hour — i.e., its court-ordered supplemental response
brief.

                                          19
Sandin v. Connor, 515 U.S. 472, 485-86 (1995). Defendant Hood counters that

Plaintiff’s transfer to ADX, even assuming ADX affords less amenable and more

restrictive quarters than those Plaintiff had at FCI Edgefield’s administrative

segregation unit, does not implicate a liberty interest protected by the Due Process

Clause. In any event, the Federal Officers maintain such a liberty interest was not

clearly established in 2002 as evidenced by Wilkinson v. Austin, 545 U.S. 209

(2005), decided over two years after Plaintiff’s 2002 transfer. Plaintiff replies that

Wilkinson did not change the law, but rather applied the clearly established law of

Sandin. Because we conclude that any protected liberty interest Plaintiff might have

in avoiding transfer to ADX was not clearly established in 2002, Defendant Hood is

entitled to summary judgment.

      “The Fourteenth Amendment’s Due Process Clause protects persons against

deprivations of life, liberty, or property; and those who seek to invoke its procedural

protection must establish that one of these interests is at stake.” Wilkinson, 545 U.S.

at 221. “A liberty interest may arise from the Constitution itself, by reason of

guarantees implicit in the word “liberty,” or it may arise from an expectation or

interest created by state laws or policies.” Id. “[T]he Constitution itself does not

give rise to a liberty interest in avoiding transfer to more adverse conditions of

confinement.” Id. (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). But “a

liberty interest in avoiding particular conditions of confinement may arise from state

policies or regulations, subject to the important limitations set forth in Sandin [v.

                                          20
Conner].” Id. Sandin clarified that, in determining whether state policies and

regulations give rise to a liberty interest, courts must focus on the nature of “the

interests allegedly created by the State.” Sandin, 515 U.S. at 480 (disavowing the

approach taken in a series of previous cases in which the Court “wrestled with the

language of . . . prison guidelines to determine whether mandatory language and

substantive predicates created an enforceable expectation that the State would

produce a particular outcome with respect to the prisoner’s conditions of

confinement”).

      Sandin addressed whether a Hawaii prison inmate had a protected liberty

interest in avoiding thirty days’ confinement in segregation as punishment for

disruptive behavior. In considering the issue, the Supreme Court focused on whether

thirty days in segregation “impose[d] atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.

Therein, the Court undertook a “comparison between inmates inside and outside

disciplinary segregation.” Id. at 486. Ultimately, the Sandin Court concluded that

the thirty days in segregation “did not work a major disruption in his environment,”

nor did it “inevitably affect the duration of his sentence.” Id. at 486-87. As such,

the Court held that the conditions “did not present the type of atypical, significant

deprivation in which a State might conceivably create a liberty interest.” Id. at 486

(noting that at the time of one inmate’s punishment “disciplinary segregation, with

insignificant exceptions, mirrored those conditions imposed upon inmates in

                                         21
administrative segregation and protective custody”). To the contrary, thirty days in

segregation was “within the range of confinement to be normally expected for one

serving an indeterminate term of 30 years to life.” Id. at 487.

      Seeking to show his right to process before his transfer to ADX, a supermax

facility, Plaintiff relies on the Supreme Court’s 2005 Wilkinson decision, which

considered what process (if any) an inmate is entitled to upon being considered for

placement at the Ohio State Penitentiary supermax facility (OSP). See Wilkinson,

545 U.S. at 220-22 (addressing the threshold inquiry of whether the inmates

established a constitutionally protected liberty interest and concluding that they had,

but later holding that the inmates received due process). According to Plaintiff, we

may look to Wilkinson even though it was handed down after his 2002 transfer

because it simply applied Sandin’s clearly established rule to the supermax context.

      Wilkinson expressly provides otherwise. The Wilkinson court recognized:

      In Sandin’s wake the Courts of Appeals have not reached consistent
      conclusions for identifying the baseline from which to measure what is
      atypical and significant in any particular prison system. This
      divergence indicates the difficulty of locating the appropriate baseline,
      an issue that was not explored at length in the briefs.

Wilkinson, 545 U.S. at 223 (collecting cases); accord Jordan v. Fed’l Bureau Prisons,

191 F. App’x 639, 650-51 (10th Cir. 2006) (“[T]he circuit courts are split on which

baseline comparison” — i.e., whether conditions, duration or restrictions of

confinement are atypical as compared with other inmates “in the same segregation”


                                          22
or the “general prison population” — “to use.”). Indeed, we have acknowledged that

our own opinions have “inconsistently used comparisons either with inmates in the

same segregation or those in the general prison population.” Jordan, 191 F. App’x

at 650 (citation omitted). Furthermore, regardless of the baseline employed, like the

majority of our sister Courts of Appeal, we have “never held the conditions, duration

or restrictions of the detentions presented on appeal created a liberty interest . . . .”

Id. at 650-51 & nn.9-10 (collecting cases). This confusion and divergence evidences

that Sandin’s rule continues to evolve, even after Wilkinson. Thus, we have no

qualm in concluding that the law was not clearly established as to whether Plaintiff

had a protected liberty interest in avoiding transfer to ADX in 2002. See Saucier v.

Katz, 533 U.S. 194, 202 (2001) (acknowledging that the “dispositive inquiry” in

determining whether a right was clearly established “is whether it would be clear to

a reasonable officer that his conduct was unlawful in the [particular] situation”); see

also Jiron v. City of Lakewood, 392 F.3d 410, (10th Cir. 2004) (qualified immunity

“is designed to ‘protect all but the plainly incompetent or those who knowingly

violate the law’” (citation omitted)).     Defendant Hood is therefore entitled to

qualified immunity regarding Plaintiff’s transfer to ADX.

                                           B.

      Next, Plaintiff maintains he has an extant official capacity claim for injunctive

relief regarding his initial transfer to ADX. Nothing in the evidence suggests,



                                           23
however, that the district court ever ruled on the merits of this claim. See, e.g., Ajaj,

2006 WL 3797871, at *9-11 (although in considering Claim 3(B) the district court

expressly stated Plaintiff “retain[ed] his official capacity claim” against Defendants

Hood, Nalley, and Wiley, the district court never expressly referenced, analyzed, or

ruled on Plaintiff’s official capacity claim related to his 2002 transfer to ADX). The

district court, quite reasonably, may have assumed Plaintiff had abandoned this

claim. For instance, though the district court granted the Federal Officers leave to

file a summary judgment motion only as to qualified immunity during a July 2006

hearing, Plaintiff gave no indication that he maintained an official capacity claim for

injunctive relief. See App. at 176-77; see generally Simmat, 413 F.3d at 1231

(“There is no such animal as a Bivens suit against a public official tortfeasor in his

or her official capacity.”); Beedle, 422 F.3d at 1069 (“[Qualified immunity] is only

available to parties sued in their individual capacity.”). Nor did Plaintiff’s summary

judgment response make substantive arguments in support of, or otherwise make

clear that he continued to prosecute, an official capacity claim related to his ADX

transfer under Claim 3(B). See App. 480-504. In any event, and most importantly,

our review of the record indicates that — despite having ample opportunities to do

so — Plaintiff has never challenged the district court’s view that its December 22,

2006 Order disposed of “all claims” save Claim 3(B) as to the step-down program.

      An “issue must be presented to, considered by, and decided by a trial court

before it can be raised on appeal.” Id. (quotation omitted). See Tele-Commc’ns, Inc.

                                           24
v. Comm’r of Internal Revenue Serv., 104 F.3d 1229, 1232-33 (10th Cir. 1997) (“In

order to preserve the integrity of the appellate structure, we should not be considered

a ‘second-shot’ forum . . . where secondary, back-up theories may be mounted for

the first time.”). This principle’s import is particularly pronounced here where the

claim at issue is one for injunctive relief arising out of the penal context. See

generally Jones v. Salt Lake County, 503 F.3d 1147, 1153-54 (10th Cir. 2007)

(recognizing significant deference to the “informed discretion of corrections

officials” is warranted when accommodating an inmate’s asserted constitutional right

will materially affect other inmates or prison staff). Put simply, because Plaintiff

failed to preserve his official capacity claim for injunctive relief related to his 2002

transfer to ADX for appeal, we will not address it here for the first time on appeal.

See Simmat, 413 F.3d at 1240. 9




      9
         Although ADX admitted Plaintiff to the step-down program in 2007, he
appeals the district court’s grant of qualified immunity to Defendant Hood on this
Bivens claim (Claim 3(B)). Assuming arguendo Plaintiff had any protected liberty
interest in admittance to the step down program, such a right was not clearly
established at the time of Defendant Hood’s allegedly wrongful conduct. As
discussed above, the rule of Sandin continued to evolve even after Wilkinson.
Defendant Hood is, therefore, entitled to qualified immunity. See Hasan, 526 F.3d
at 663.

                                          25
      For the foregoing reasons, the district court’s judgment is AFFIRMED IN

PART, REVERSED IN PART, and REMANDED for further proceedings as stated

herein.


                                   Entered for the Court


                                   Bobby R. Baldock
                                   United States Circuit Judge




                                     26
HENRY, Chief Judge, concurring:


      I concur in the majority’s disposition of Mr. Ajaj’s conditions of confinement

claim (Claim 3A) because the record and the pleadings before the district court

convince me that this deprivation does not violate the Eighth Amendment. As the

majority explains, review of the record makes clear that the appellant regularly

declined outdoor exercise opportunities. Also, he was allowed indoor recreation.

However, I write separately to encourage the government to re-examine its proffered

view of the exercise issue and, in particular, outdoor exercise.

      On appeal, the government argues, “Ajaj appears to complain chiefly about the

restrictions on outdoor recreation, alleging he was denied outdoor exercise for the

first year at ADX, and not consistently allowed since. However, on its face, this fails

to state a claim.” Aple’s Br. at 25 (emphasis added). The government’s assertion

that a prisoner, even one in administrative segregation, may not make out an Eighth

Amendment claim by alleging a one-year deprivation of outdoor exercise is

challenged by our caselaw. Furthermore, the government’s statement and its terse

argument were unnecessary under the facts of this case. 1 I agree that, due to Mr.

Ajaj’s failure to substantiate his claims adequately, the defendants were entitled to

qualified immunity in this case.    However, a prisoner who has been deprived of



      1
        The government adds, “[T]he record demonstrates that the main reason he
has had less outdoor exercise is that he has refused it.” Aple’s Br. at 25. This
opaque reference to the record concludes the government’s short discussion of Mr.
Ajaj’s alleged deprivation of outdoor exercise.
outdoor exercise for one year – especially one with health issues whose doctor has

recommended outdoor exercise – could make out an Eighth Amendment claim under

the summary judgment standard of review.

      Clearly, the Eighth Amendment “does not mandate comfortable prisons,”

Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998) (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)). However, as a general rule, prisoners are

entitled to some out-of-cell exercise. In Housley v. Dodson, we held that an inmate

alleged an Eighth Amendment violation by claiming to have been afforded only

thirty minutes of out-of-cell exercise over the course of three months. 41 F.3d 597,

599 (10th Cir. 1994), overruled on other grounds by Lewis v. Casey, 518 U.S. 343

(1996). We noted, “[T]here can be no doubt that total denial of exercise for an

extended period of time would constitute cruel and unusual punishment prohibited

by the Eighth Amendment.” Id. at 599. Housley further explained that “a failure to

provide inmates (confined for more than a short a very short period . . . ) with the

opportunity for at least five hours a week of exercise outside the cell raises serious

constitutional questions.” Id. (internal quotation marks omitted).

      Several of our sister circuits have also expressed the view that prisoners are

entitled to out-of-cell recreation. For example, the Ninth Circuit has noted that

“exercise has been determined to be one of the basic human necessities protected by

the Eighth Amendment.” Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005)



                                         -2-
(internal quotation marks omitted). The Seventh Circuit has observed that “exercise

is no longer considered an optional form of recreation, but is instead a necessary

requirement for physical and mental well-being.” Delaney v. DeTella, 256 F.3d 679,

683 (7th Cir. 2001) (finding that prison officials were not entitled to qualified

immunity where an inmate in segregated housing alleged a six-month deprivation of

out-of-cell exercise). Indeed, “exercise is now regarded in many quarters as an

indispensable component of preventative medicine.” Id. (emphasis added); see also

Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (“We have no difficulty

concluding that [three-and-half years’ deprivation of out-of-cell exercise] would run

afoul of the Eighth Amendment.”); Rodgers v. Jabe, 43 F.3d 1082, 1087 (6th Cir.

1995) (“[R]estrictions on exercise may violate the Eighth Amendment under some

circumstances.”); Mitchell v. Rice, 954 F.2d 187, 192 (4th Cir. 1992) (“[A] total or

near-total deprivation of exercise or recreational opportunity, without penological

justification, violates Eighth Amendment guarantees.”); Ruiz v. Estelle, 679 F.2d

1115, 1152 (5th Cir. 1982) (“Although deprivation of exercise is not per se cruel and

unusual punishment, in particular circumstances a deprivation may constitute an

impairment of health forbidden under the [E]ighth [A]mendment.” (internal quotation

marks omitted)), vacated in part on other grounds by 688 F.2d 266 (5th Cir. 1982).

      Federal Bureau of Prisons (BOP) regulations recognize the importance of

recreation, both indoor and outdoor. According to BOP regulations, even inmates

housed in “control units” – i.e., inmates “who are unable to function in a less

                                         -3-
restrictive environment,” 28 C.F.R. § 541.40 – must have an “opportunity to receive

a minimum of seven hours weekly recreation outside of the cell.” Id. at § 541.46(e).

The regulations also provide that “staff [in control units] may offer outdoor

recreation to inmates, weather permitting.” Federal Bureau of Prisons, Program

Statement No. 5212.07 (Control Unit Programs), at 12 (supplying commentary for

2 8       C . F . R .   §     5 4 1 . 4 6 ( e ) ( 1 ) ) ,     a v a i l a b l e      a t

http://www.bop.gov/DataSource/execute/dsPolicyLoc. The American Correctional

Association’s Standards for Correctional Institutions, a publication referenced in the

BOP regulations governing the recreation of general population prisoners, 2

recommends that inmates be provided with ample space for indoor and outdoor

recreation. See A MERICAN C ORRECTIONAL A SSOCIATION , S TANDARDS          FOR    A DULT

C ORRECTIONAL I NSTITUTIONS 43, 74 (4th ed. 2003); Federal Bureau of Prisons,

Program Statement No. p5370-70, Inmate Recreation Programs 3 (June 25, 2008),

available at http://www.bop.gov/DataSource/execute/dsPolicyLoc (citing AMERICAN

C ORRECTIONAL A SSOCIATION , S TANDARDS FOR A DULT C ORRECTIONAL I NSTITUTIONS



      2
          The American Correctional Association (ACA) offers accreditation to
correctional institutions that comply with its standards. According to the Department
of Justice (DOJ), “[T]he BOP utilizes ACA to obtain an external assessment of its
ability to meet the basics of corrections.” The United States Department of Justice,
Strategic Plan 2000 - 2005, Strategic Objective 5.3, Strategies to Achieve the
O b j e c t i v e ,                        a v a i l a b l e                       a t
http://www.usdoj.gov/archive/mps/strategic2000_2005/goal5.htm. Further, DOJ
noted, “BOP will continue to prepare all activated facilities for accreditation with the
[ACA].” Id.

                                          -4-
(3d ed. 1990)).

      Though BOP regulations do not appear to require outdoor recreation for all

inmates under all circumstances, our cases demonstrate that a deprivation of outdoor

exercise may amount to an Eighth Amendment violation, even when an inmate is

afforded some measure of indoor exercise. This is because, as the majority opinion

in this case notes:

      There 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 inmates, and some courts have
      held a denial of fresh air and exercise to be cruel and unusual
      punishment under certain circumstances.


Maj. Op., at 17 (quoting Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006)

(quoting Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (quoting Spain v.

Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (Kennedy, J.) (collecting cases))); see

also Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (“Deprivation of outdoor

exercise violates the Eighth Amendment rights of inmates confined to continuous and

long-term segregation.”).

      Our cases suggest that the general rule entitling prisoners to outdoor exercise

may not be violated, absent a strong justification. In Bailey, for example, we

acknowledged that “a convicted murderer who had murdered another inmate and

represented a major security risk was entitled to outdoor exercise.” Housley, 41 F.3d

at 599 (emphasis added) (citing Bailey, 828 F.2d at 653). We did not find an Eighth


                                         -5-
Amendment violation in Bailey, but we observed that the inmate was permitted to

exercise in an outdoor facility for one hour per week. Bailey, 828 F.2d at 653. In

fact, we cabined our holding in Bailey, avoiding a suggestion that a more complete

deprivation would be permissible: “Although this amount of exposure to exercise

and fresh air is still restrictive, we cannot say, without more, that it fails to satisfy

the demands of the Eighth Amendment.” Id. (emphasis added).

      In Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 809-10 (10th Cir.

1999), which the government did not address before this court, we held that a one-

year deprivation of outdoor exercise did give rise to an Eighth Amendment claim.

There, a prisoner was “permitted to leave his cell for thirty minutes each day, to take

a shower . . . [and was not] permitted to exercise outside his cell for over a year.”

Id. at 810 (emphasis added). While the prisoner had been deprived of all out-of-cell

exercise, we labeled Mr. Perkins’s argument a “claim for deprivation of outdoor

exercise.” Id. (emphasis added). Relying on then-Judge Kennedy’s discussion of

fresh air and outdoor exercise in Spain, we found that Mr. Perkins’s alleged

deprivation of outdoor exercise was sufficient to state an Eighth Amendment claim.

Id. (holding that the “district court erred when it held that plaintiff’s allegations

about the extended deprivation of outdoor exercise showed no excessive risk to his

well-being”) (internal quotation marks omitted) (emphasis added).

      Similarly in Fogle, we held that a prisoner who had been placed in



                                           -6-
administrative segregation after repeated escape attempts articulated an Eighth

Amendment claim when he alleged he had been “denied all outdoor exercise for the

three years he was in administrative segregation.” 435 F.3d at 1259-60. In that case,

the prisoner acknowledged that he was “allowed access to a cell with a pull-up bar

a few times each week.” Id. at 1260 n.4. However, consistent with Perkins, we

observed that “the district court erred as a matter of law in concluding that a prisoner

must allege denial of all exercise, not just outdoor exercise, to present an arguable

claim” under the Eighth Amendment. Id. at 1260 (citing Perkins, 165 F.3d at 810).

      While our cases recognize that prisoners are generally entitled to outdoor

exercise, a denial of outdoor exercise is not an Eighth Amendment violation per se.

See Bailey, 828 F.2d at 653. As we have recognized, “[t]he Eighth Amendment does

not provide a fixed formula for determining whether the effect of particular

conditions constitutes cruel and unusual punishment.” Id. (internal quotation marks

omitted). The length of a deprivation of outdoor exercise necessary to trigger an

Eighth Amendment violation may vary, depending the government’s justifications

for the deprivation.    See Perkins, 165 F.3d at 810 n.8 (observing that “what

constitutes adequate exercise will depend on the circumstances of each case”

including “penological considerations”); cf. Yousef v. Reno, 254 F.3d 1214, 1219

(10th Cir. 2001) (noting that prisoners convicted of terrorist activities may be

subjected to Special Administrative Measures, “in 120 day increments,” including

administrative detention and limited contact with others).

                                          -7-
      Particularly in light of the principle that “what constitutes adequate exercise

will depend on the circumstances of each case,” Perkins, 165 F.3d at 810 n.8, the

government has offered this court surprisingly little factual analysis in this case. The

government has instead supplied us with the broad assertion that Mr. Ajaj “fail[ed]

to state a[n Eighth Amendment] claim,” Aple’s Br. at 25, by alleging that he had

been deprived of outdoor exercise for one year. The government cited two opinions,

our decision in Bailey and one case from the Fifth Circuit, but neither provides any

support for the government’s contention. First, Bailey actually supports the position

that an alleged one-year deprivation of all outdoor exercise could amount to an

Eighth Amendment claim, as the Bailey court carefully observed that one hour of

outdoor exercise per week was “restrictive,” even if it was not in violation of the

Eighth Amendment under those circumstances. 828 F.2d at 653. Similarly, in

Wilkerson v. Maggio, 703 F.2d 909, 911-12 (5th Cir. 1983), the government’s second

case, the court held that prison officials were entitled to qualified immunity,

notwithstanding the prisoner’s contention that he had been denied outdoor recreation

for approximately five years. However, the court reasoned that Mr. Wilkerson was

permitted to exercise regularly in a room that was “about thirty yards long” and was

“lined with windows which permitted fresh air to enter the cell block area.” Id. at

912. Unlike Mr. Wilkerson, Mr. Ajaj alleged – although he ultimately did not

support the claim with particularized factual assertions – that he was denied access




                                          -8-
to fresh air and sunlight for one year. 3

      While I disagree with the government’s apparent contention that Mr. Ajaj

failed to allege an Eighth Amendment violation when he asserted that he was denied

outdoor exercise for one year, I agree that the defendants are entitled to qualified

immunity. As the majority correctly observes, the record generated before the

district court – which the government did not address in depth before this court –

demonstrates that Mr. Ajaj was offered, but refused, outdoor exercise on several

occasions during his first year at ADX. The record also suggests, and Mr. Ajaj does

not dispute, that prison officials afforded him regular solitary indoor exercise

opportunities (as seems warranted by these facts). Therefore, I join the majority’s

opinion.

      Nonetheless, as noted above our cases clearly suggest that failure to allow

adequate exercise (in most cases with an outdoor component) for a period of a year

raises real constitutional concern. As federal prisons aspire to the standards of the

ACA and must follow Eighth Amendment jurisprudence, I am perplexed that the

      3
        The government’s opening brief also discussed In re Long Term Segregation
of Inmates Designated as Five Percenters, 174 F.3d 464 (4th Cir. 1999), which it
characterized as “the most analogous published decision” addressing an Eighth
Amendment conditions of confinement claim involving an inmate housed in
administrative segregation. Aple’s Br. at 24. Although the government did not cite
this case for the proposition that a one-year deprivation of outdoor exercise could not
violate the Eighth Amendment, I note that the In re Long Term Segregation court did
not discuss outdoor recreation; it appears that the prisoners did not raise the issue.
Rather, the court simply noted that approximately five hours of exercise per week did
not violate the Eighth Amendment under the facts of that case. See id. at 471-72.

                                            -9-
government did not explicitly discuss the facts that allowed it to prevail.




                                         -10-
