                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


NEIL GRENNING,                            No. 11-35579
                 Plaintiff-Appellant,
                                             D.C. No.
                 v.                       2:09-cv-00389-
                                               JPH
MAGGIE MILLER-STOUT; JIM
DYSON; FRED FOX, sued in their
individual and official capacities,          OPINION
               Defendants-Appellees.


      Appeal from the United States District Court
        for the Eastern District of Washington
       Edward F. Shea, District Judge, Presiding

               Argued and Submitted
         March 5, 2013—Seattle, Washington

                 Filed January 16, 2014

  Before: Ferdinand F. Fernandez, William A. Fletcher,
       and Johnnie B. Rawlinson, Circuit Judges.

             Opinion by Judge W. Fletcher;
              Dissent by Judge Rawlinson
2                 GRENNING V. MILLER-STOUT

                           SUMMARY*


                      Prisoner Civil Rights

   The panel reversed the district court’s summary judgment
and remanded in a 42 U.S.C. § 1983 action brought by a
Washington state prisoner who alleged that the continuous
twenty-four-hour illumination of his cell violated the Eighth
Amendment.

    The panel held that there were material issues of fact as
to (1) the brightness of the continuous lighting in plaintiff’s
Special Management Unit cell, (2) the effect on plaintiff of
the continuous lighting, and (3) whether the defendant
officials were deliberately indifferent. The panel held that
even if it were possible for a defendant to defeat an Eighth
Amendment conditions of confinement claim at summary
judgment by showing a legitimate penological interest,
defendants failed to make such a showing in this case. The
panel held that on remand the district court should consider
the issue of qualified immunity in the first instance. The
panel also determined that on remand, the district court
should consider in the first instance plaintiff’s request that
prison officials not garnish more than 20% of his prison
account at a time in order to pay his court fees.

    Dissenting, Judge Rawlinson stated that the record
supported affirming the grant of summary judgment in favor
of the prison officials on the basis of qualified immunity
because it would not be clear to a reasonable prison official

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               GRENNING V. MILLER-STOUT                    3

that reliance on the proffered justifications for the use of
constant illumination in the Special Management Unit would
violate the Eighth Amendment.


                        COUNSEL

Hunter Olds Ferguson (argued), Leonard J. Feldman, Stoel
Rives, LLP, Seattle, Washington, for Plaintiff-Appellant.

Candie M. Dibble, Joseph T. Edwards, Kevin Clarke Elliott
(argued), Office of the Attorney General, Spokane,
Washington, for Defendants-Appellees.


                        OPINION

W. FLETCHER, Circuit Judge:

    Neil Grenning appeals a grant of summary judgment in
favor of defendant prison officials. Grenning contends that
continuous twenty-four-hour illumination of his cell violated
the Eighth Amendment. We reverse and remand for further
proceedings.

                       I. Background

    Neil Grenning is a Washington State inmate at Airway
Heights Corrections Center (“Airway Heights”). Prison staff
placed Grenning in the Special Management Unit (“SMU”)
of Airway Heights “pending investigation” into a fight “that
he was allegedly involved in.” Grenning was kept in the
SMU for about thirteen days.
4               GRENNING V. MILLER-STOUT

    The SMU is an administrative segregation unit with
single-inmate cells that are continuously illuminated for
twenty-four hours a day. Each cell in the SMU has three
four-foot-long fluorescent lighting tubes in a mounted light
fixture. A cell occupant can use a switch inside the cell to
turn off two of the tubes. However, the center tube is always
on. The center tube is covered by a blue light-diffusing
sleeve.

    Terry Propeck, a correctional unit supervisor, provided a
declaration describing practices in the SMU. Propeck’s term
for inmates kept in the SMU is “offenders.” Propeck states,
“Offenders housed in the SMU are considered a high risk to
staff, other offenders, and themselves. Some offenders are
placed in SMU pending an investigation into an incident that
the offender was involved in.” Some inmates are placed in
SMU because they request protective custody. Institution
policy requires welfare checks in the SMU to be conducted
every thirty minutes, which is more frequent than checks for
the general prison population.

    According to Propeck, continuous illumination allows
officers to “assess[] the baseline behavior of offenders to
ensure they are not at risk of harming themselves or making
an attempt to harm staff, cause property damage or incite
problem behavior from other offenders.” Propeck states that
turning the cell lights on and off every thirty minutes would
be disruptive to the cell occupants. Further, turning the lights
on and off also might endanger staff because guards would be
unable to see into the cell until they were immediately in
front of it and had turned on the light. Turning lights on and
off would also alert inmates to staff presence. Finally,
Propeck states, “If an emergency occurred necessitating
keeping the lights on for a prolonged period of time, this
                GRENNING V. MILLER-STOUT                     5

could cause a disruption in the unit and frustrate or cause
anxiety for offenders as opposed to having the light on as a
norm.”

    Grenning filed a verified complaint alleging that the
continuous lighting in his SMU cell violated the Eighth
Amendment. Grenning alleges that the light was so bright he
could not sleep, even with “four layers of towel wrapped
around his eyes.” He alleges that the lighting gave him
“recurring migraine headaches” and that he could not
distinguish between night and day in the cell. Grenning also
alleges that the lighting caused him pain and disoriented him.

    There is no evidence that Grenning sought medical
assistance while in the SMU. However, he did submit a
grievance informing prison officials that he could not sleep
and that he had headaches as a result of the continuous
lighting. He requested that prison officials replace the center
tube with something that would give off less light.

   The district court granted summary judgment in favor of
Defendants, holding that Grenning had not established an
Eighth Amendment violation. Grenning timely appealed.

                   II. Standard of Review

    We review a grant of summary judgment de novo.
Summary judgment is appropriate when, “with the evidence
viewed in the light most favorable to the non-moving party,
there are no genuine issues of material fact, so that the
moving party is entitled to a judgment as a matter of law.”
San Diego Police Officers’ Ass’n v. San Diego City Emps.’
Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009).
6               GRENNING V. MILLER-STOUT

                       III. Discussion

      A. “Physical Injury” Requirement of the PLRA

    Defendants argue that Grenning’s claim is barred by a
requirement of the Prison Litigation Reform Act (“PLRA”)
that a prisoner have suffered a physical injury. The language
of the relevant section provides:

       (e) Limitation on recovery

           No Federal civil action may be brought by
           a prisoner confined in a jail, prison, or
           other correctional facility, for mental or
           emotional injury suffered while in custody
           without a prior showing of physical injury
           ....

42 U.S.C. § 1997e(e). This section does not bar Grenning’s
case because he does not seek recovery for “mental or
emotional injury.” See Oliver v. Keller, 289 F.3d 623, 629
(9th Cir. 2002) (“[Section] 1997e(e) applies only to claims for
mental and emotional injury.”). He alleges various forms of
physical injury and discomfort, and he seeks a declaratory
judgment stating that the continuous lighting violated the
Eighth and Fourteenth Amendments, an injunction preventing
Defendants from continuing their lighting policy,
compensatory damages, and “other relief as it may appear
that plaintiff is entitled.”

                   B. Eighth Amendment

   To prove an Eighth Amendment violation based on prison
conditions, a prisoner must satisfy a two-part test. The
                GRENNING V. MILLER-STOUT                     7

objective part of the test requires a showing that the
defendants deprived the plaintiff of the “minimal civilized
measure of life’s necessities.” Hallett v. Morgan, 296 F.3d
732, 744 (9th Cir. 2002) (internal quotation marks and
citations omitted). The subjective part requires a showing
that the defendants “acted with ‘deliberate indifference’ in
doing so.” Id.

    We have held that continuous lighting can satisfy the
objective part of the test. “Adequate lighting is one of the
fundamental attributes of ‘adequate shelter’ required by the
Eighth Amendment. Moreover, there is no legitimate
penological justification for requiring inmates to suffer
physical and psychological harm by living in constant
illumination. This practice is unconstitutional.” Keenan v.
Hall, 83 F.3d 1083, 1090 (9th Cir. 1996) (alterations, internal
quotation marks, and citations omitted), opinion amended on
denial of reh’g, 135 F.3d 1318 (9th Cir. 1998). Keenan
alleged in his verified complaint that the continuous lighting
caused him “grave sleeping problems,” and that it was so
bright that he “had no way of telling night or day.” Id. at
1091. The state submitted an affidavit stating that an inmate
could sleep with the twenty-four-hour lighting. We held that
Keenan had presented enough evidence to show a disputed
issue of material fact. Id.; see also LeMaire v. Maass, 745 F.
Supp. 623, 636 (D. Or. 1990), vacated, 12 F.3d 1444 (9th Cir.
1993) (vacated in part because state agreed to modify lighting
policy, see id. at 1459); cf. Chappell v. Mandeville, 706 F.3d
1052, 1057–58 (9th Cir. 2013) (finding officials entitled to
qualified immunity for Eighth Amendment lighting claim by
prisoner on contraband watch who did not claim sleep
deprivation).
8               GRENNING V. MILLER-STOUT

    A showing of deliberate indifference, under the subjective
part of the test, requires a showing that the defendant knew of
an excessive risk to inmate health or safety that the defendant
deliberately ignored. Johnson v. Lewis, 217 F.3d 726, 734
(9th Cir. 2000). Whether an official possessed such
knowledge “is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial
evidence.”        Id. (internal quotation marks omitted).
Knowledge of a risk of harm can be inferred where that risk
is “obvious,” but prison officials are not liable if they respond
reasonably to the risk. Thomas v. Ponder, 611 F.3d 1144,
1150 (9th Cir. 2010).

                  C. Evidence in the Record

    To show that the continuous lighting violated the
objective part of the test, Grenning filed a verified complaint
alleging that the SMU lighting was so bright he could not
sleep and that it gave him recurring migraines. He alleges
that he could not distinguish between night and day in the
cell. Finally, he alleges that the continuous lighting caused
pain and disorientation.

    The only evidence concerning the brightness of the SMU
cells submitted by Defendants is a report and a declaration by
Airway Heights Electrician Supervisor Steve McCallum.
McCallum states in his report that he performed light meter
readings in two SMU cells, using two meters in each cell. In
one cell, the readings with the blue sleeve in place were 9.99
foot-candles using one meter, and 11.16 foot-candles using
the other. The distance from bunk to light fixture was seven
feet four inches. In the other cell, the light meter readings
with the blue sleeve in place were 10.9 foot-candles and 12.4
                GRENNING V. MILLER-STOUT                     9

foot-candles. The “[d]istance from bunk to light fixture” was
seven feet.

    McCallum does not state in his report that he did his light
meter readings at bunk level; but we may infer that he did so,
for otherwise his measurements would be useless for
purposes of this suit. McCallum also does not state in his
report that he did his light meter reading with only the center
tube turned on; but we may again infer that he did so, for
otherwise his measurements would be useless. Finally,
McCallum does not state in his report that he did his
measurements in the particular SMU cell that Grenning
occupied.

   In his sworn declaration, almost certainly prepared for
him by Defendants’ attorneys, McCallum states:

       I performed a light meter test in a standard
       SMU cell on July 8, 2010. A light meter test
       of a standard SMU cell indicates that without
       the blue sleeve there is a reading of 17.5 foot
       candles. With the blue sleeve installed the
       meter reads 9.99 foot candles.

McCallum does not mention in his sworn statement that
another measurement in the same cell was 11.16 rather than
9.99 foot-candles. Nor does he mention that measurements,
in tests performed on the same day in another SMU cell, were
10.9 and 12.4 foot-candles. Further, McCallum does not say
in his sworn statement how he determined that the cell with
the 9.99 to 11.16 foot-candle measurements, rather than the
cell with the 10.9 to 12.4 foot-candle measurements, is “a
standard SMU cell.” Again, McCallum does not say that
10              GRENNING V. MILLER-STOUT

either of the two SMU cells in which he performed the tests
was the particular SMU cell that Grenning occupied.

    We are unable to determine from this record how bright
the lighting in Grenning’s cell actually was. There are
problems with McCallum’s report and declaration, as just
described. There is also nothing in the record to give us a
clear idea of what a foot-candle measurement means in
practical terms. Grenning put unverified third-party Internet
documents into the record, but no other declarations or
testimony were put in the record. Grenning’s documents tell
us that a foot-candle is the amount of light received by one
square foot of surface from a candle one foot away from the
surface area. However, without further specifications
regarding the actual luminous intensity of the point source,
that does not advance our understanding of the evidence.
While we could speculate about whether a point source of the
stipulated luminosity one foot away from a prisoner’s face
would seriously interfere with his sleep, on this limited record
that would be inappropriate.

    To show that Defendants were aware of prisoners’
complaints about the continuous lighting in the SMU,
Grenning put into evidence not only his own grievance, but
also fifteen grievances about the SMU lighting from other
inmates. Defendants contend that legitimate penological
interests justify the continuous lighting in SMU cells, and that
they responded reasonably to the risk of harm presented by
that lighting. The precise role of legitimate penological
interests is not entirely clear in the context of an Eighth
Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley,
482 U.S. 78 (1987), which requires only a reasonable
relationship to a legitimate penological interest to justify
                GRENNING V. MILLER-STOUT                     11

prison regulations, does not apply to Eighth Amendment
claims. Johnson v. California, 543 U.S. 499, 511 (2005)
(“[W]e have not used Turner to evaluate Eighth Amendment
claims of cruel and unusual punishment in prison. We judge
violations of that Amendment under the ‘deliberate
indifference’ standard, rather than Turner’s ‘reasonably
related’ standard. This is because the integrity of the criminal
justice system depends on full compliance with the Eighth
Amendment.”) (internal citations omitted). The existence of
a legitimate penological justification has, however, been used
in considering whether adverse treatment is sufficiently
gratuitous to constitute punishment for Eighth Amendment
purposes. See Rhodes v. Chapman, 452 U.S. 337, 346 (1981)
(“Among ‘unnecessary and wanton’ inflictions of pain are
those that are ‘totally without penological justification.’”
(quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976))). In
both Chappell, 706 F.3d at 1058, and Keenan, 83 F.3d at
1090, we referred to possible legitimate penological interests
when considering allegations that continuous lighting violated
the Eighth Amendment.

    Even if it were possible for a defendant to defeat an
Eighth Amendment conditions of confinement claim at
summary judgment by showing a legitimate penological
interest, Defendants have failed to make such a showing in
this case. The record shows that an individual may be placed
in the SMU for a number of reasons, including reasons that
do not appear to support a blanket policy of continuous
lighting. There are several possible reasons for placing an
inmate in segregation at Airway Heights: “Threat to Others,”
“Threat to Self,” “Threat to Security,” “Threat to Orderliness
of Facility,” and “Other.” The paperwork in Grenning’s case
indicates that he was placed in the SMU, “pending
investigation of an assault,” under the heading of “Threat to
12              GRENNING V. MILLER-STOUT

Orderliness of Facility[.]” So far as the record shows,
Grenning could have been placed in the SMU because he
attacked someone, because he was a victim of an attack, or
because he was an innocent bystander caught up in a melee.
There is thus no indication that Defendants’ proffered
justifications for constant illumination were relevant to
Grenning.

    Defendants contend that they were not deliberately
indifferent because they relied on a 1996 district court
decision upholding continuous lighting.              However,
Defendants are unable to tell us about either the factual
circumstances or the reasoning of the court in that case, and
have not included a copy of the case in the record. It is thus
impossible for us to determine, even if a decision of that court
were binding law, whether the continuous lighting in this case
would have been constitutional in the view of that court.

   Defendants further contend that the lighting in Grenning’s
SMU cell was “accredited” by the American Correctional
Association (“ACA”). McCallum states in his declaration:

           In 2007, the lighting in the cells at
       [Airway Heights Correctional Center
       (“AHCC”)] was tested for compliance by the
       American Correctional Association (ACA). I
       was involved with the testing protocols. The
       lighting in the cells at AHCC passed the
       national accreditation standards of the ACA
       during the testing in 2007.

We are unable to determine from McCallum’s statement the
significance of the “accreditation” by the ACA. We are not
informed of the standards of the ACA, nor are we informed
                GRENNING V. MILLER-STOUT                      13

about the thoroughness of the testing performed at Airway
Heights. Notably absent from McCallum’s statement, for
example, is a description of the ACA’s standard for
continuous lighting in cells, and any statement that the
lighting in the SMU cells was tested.

    We conclude, based on the foregoing, that there are
material issues of fact remaining as to the brightness of the
continuous lighting in Grenning’s SMU cell, as to the effect
on Grenning of the continuous lighting, and as to whether the
defendant officials were deliberately indifferent.

                    D. Qualified Immunity

    The district court did not consider the question of
qualified immunity because it granted summary judgment to
Defendants on the merits. We leave the issue of qualified
immunity for the district court to determine in the first
instance on remand. See Price v. Hawai’i, 939 F.2d 702, 707
(9th Cir. 1991).

    If the district court finds for Grenning on the merits of his
Eighth Amendment claim, and if it finds that Defendants are
entitled to qualified immunity, Grenning may still be entitled
to injunctive relief. See The Presbyterian Church (U.S.A.) v.
United States, 870 F.2d 518, 527 (9th Cir. 1989). It is
obvious from the record before us that prisoners at Airway
Heights may be placed in the SMU for many reasons, and, so
far as the record shows, Grenning is likely to remain a
prisoner at Airway Heights for a sustained period. It thus
appears that there is sufficient likelihood of Grenning being
again confined in the SMU to preserve his claim for
injunctive relief. Cf. City of L.A. v. Lyons, 461 U.S. 95, 107
n.8 (1983) (finding injunctive relief inappropriate where
14              GRENNING V. MILLER-STOUT

plaintiff could not show sufficient likelihood he would be
subject to Los Angeles Police Department choke-hold policy
in the future).

                 E. Filing Fees Deductions

    Grenning has asked us to hold that prison officials at
Airway Heights may not garnish more than 20% of his prison
account at a time in order to pay his court fees. The district
court granted Grenning in forma pauperis status in this case.
Airway Heights then began withholding 20% of Grenning’s
monthly income to pay his court fees pursuant to the PLRA.
28 U.S.C. § 1915(b). When Grenning appealed to this court,
we also granted in forma pauperis status. Airway Heights
then reduced Grenning’s income by an additional 20%.

    Grenning has sought a ruling from us that would allow
Airway Heights to garnish only 20% of his income per
month, a method called the “sequential” or “per prisoner”
approach. See Torres v. O’Quinn, 612 F.3d 237, 242–48 (4th
Cir. 2010). Defendants argue that Airway Heights can bill
Grenning 20% per case, a method termed the “simultaneous”
or “per case” approach. Id. The district court has not had the
opportunity to consider this issue. We think it appropriate for
the district court to consider it in the first instance.

                         Conclusion

   We reverse the summary judgment granted to Defendants
and remand for further proceedings consistent with this
opinion.

     REVERSED and REMANDED.
                GRENNING V. MILLER-STOUT                      15

RAWLINSON, Circuit Judge, dissenting:

    I respectfully dissent from the majority’s failure to rule on
the issue of qualified immunity in this case. We may affirm
the district court’s decision “on any ground supported by the
record.” Serrano v. Francis, 345 F.3d 1071, 1076–77 (9th
Cir. 2003). And the record in this case supports affirming the
grant of summary judgment in favor of the prison officials on
the basis of qualified immunity. See id.

    I agree that constant illumination of an inmate’s sleeping
quarters may constitute a serious deprivation of the right to
shelter guaranteed by the Eighth Amendment in some
circumstances. See Keenan v. Hall, 83 F.3d 1983, 1090–91
(9th Cir. 1996). However, before denying qualified immunity
to prison officials, we must determine whether the party
asserting the injury has sufficiently alleged a constitutional
violation, and whether the right violated was clearly
established. See Wilkins v. City of Oakland, 350 F.3d 949,
954 (9th Cir. 2003). “[C]learly established means that it
would be clear to a reasonable [prison official] that his
conduct was unlawful in the situation he confronted.” Id.
(citation and internal quotation marks omitted) (emphasis in
the original).

    We recently held that constant illumination of an inmate’s
cell is unconstitutional only if no penological justification is
provided for such illumination. See Chappell v. Mandeville,
706 F.3d 1052, 1057–58 (9th Cir. 2013). We distinguished
Keenan, the case relied on by Plaintiff Neil Grenning. We
emphasized that “Keenan did not clearly establish that
constant illumination violates the Eighth Amendment when
done for a legitimate penological purpose.” Id. at 1058.
Rather the panel in Keenan expressly “noted that no
16              GRENNING V. MILLER-STOUT

legitimate penological justification had been offered [by the
prison officials] in that case. . . .” Id. (citation omitted).

    By contrast, in this case, prison officials offered the
following legitimate penological purposes for constant
illumination:

       •   Offenders in the Segregation Management
           Unit (SMU) pose a greater security risk
           within the institution.

       •   Because of the greater security risk,
           inmates housed in the SHU are subjected
           to security checks every thirty minutes.

       •   Constant illumination allows staff to
           conduct security checks without
           disrupting offenders by turning on the
           lights every thirty minutes or by shining a
           flashlight into the inmate’s cell.

       •   Constant illumination prevents inmates
           from observing the use of lights by
           correctional staff to assess their proximity.

    As federal judges, we are in no position to second-guess
the legitimacy of these proffered justifications. See Noble v.
Adams, 646 F.3d 1138, 1144 (9th Cir. 2011) (“When
balancing the obligation to provide for inmate and staff safety
against the duty to accord inmates the rights and privileges to
which they are entitled, prison officials are afforded wide-
ranging deference. . . .”) (alteration and internal quotation
marks omitted). “[W]e may not lightly second-guess [prison]
officials’ expert judgments” on these security issues. Id.
                GRENNING V. MILLER-STOUT                     17

    In my view, the presence of legitimate justifications for
the constant illumination in the SMU sufficiently
distinguishes this case from Keenan such that it would not be
clear to a reasonable prison official that reliance on the
proffered justifications for the use of constant illumination in
the SMU would violate the Eighth Amendment. I would
affirm the district court’s grant of summary judgment in favor
of the prison officials on the alternative basis that they were
entitled to qualified immunity.
