                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 23 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDWARD TERRAN FURNACE,                           No. 09-16983

              Plaintiff - Appellant,             D.C. No. 3:06-cv-04229-MMC

  v.
                                                 MEMORANDUM *
M. S. EVANS; ANTHONY HEDGPETH;
G. PONDER; J. CELAYA; M. NILSSON;
T.A. VARIZ; E. MEDINA; K.
KNUCKLES; D. VEGA; S.
MCDONALD; J. RODRIGUEZ,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                Maxine M. Chesney, Senior District Judge, Presiding

                     Argued and Submitted November 17, 2011
                             San Francisco, California

Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.

       Edward Furnace (“Furnace”), a California state prisoner, appeals the district

court’s summary judgment in this 42 U.S.C. § 1983 action naming various prison



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
officials as defendants. Furnace alleges that his constitutional rights were violated

when prison officials restricted him to conditions similar to solitary confinement

and denied him outdoor activity and exercise for twenty consecutive months.

Prison officials insisted that Furnace sign a pledge form renouncing violence as a

condition for ending his cell confinement, and he repeatedly refused. The

lockdown was precipitated by a state of emergency because of the attempted

murder of two correctional officers by another inmate. The district court found

that defendants did not violate Furnace’s First or Eighth Amendment rights, or his

due process rights, and granted summary judgment in favor of the prison official

defendants.

      We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the

district court’s order granting summary judgment. Hauk v. JP Morgan Chase Bank

USA, 552 F.3d 1114, 1117 (9th Cir. 2009).

      The outcome of the Eighth Amendment claims is controlled by Thomas v.

Ponder, 611 F.3d 1144 (2010). Thomas was decided on substantially similar facts

arising from the same correctional facility. Given the timing, the district court did

not have the benefit of the Thomas decision before granting summary judgment

here. Under Thomas, Furnace has established a genuine issue of material fact




                                          -2-
regarding an Eighth Amendment violation We therefore reverse and remand for

reconsideration of Furnace’s Eighth Amendment claims in light of Thomas.

      The second issue is whether the district court applied the proper test to

evaluate the lawfulness of Furnace’s First Amendment retaliation claim. The

Supreme Court’s Turner test, Turner v. Safely, 482 U.S. 78, 89–91 (1987), is the

proper test. It was error not to apply Turner here because the real issue was not

retaliation against a particular inmate but rather the validity of general prison

policy applied to all inmates in Facility C. A constitutional challenge to a prison

policy is an inquiry best conducted under the four-part Turner test. Thus, we

remand for an application of the Turner test to determine the validity of the

challenged prison policy of requiring inmates to sign a pledge before being

returned to a normal program.

      Finally, we affirm the district court’s grant of summary judgment on

Furnace’s due process claims. The record includes a long paper trail documenting

Furnace’s efforts to appeal and to challenge various aspects of his confinement

under the modified program. The district court found that a genuine emergency

existed during the entire disputed period, and it concluded that Furnace “was not

entitled to a hearing with respect to his placement and continued retention on

modified program status.” We agree.


                                          -3-
      The prison officials argue that even if Furnace were to establish a

constitutional violation, they are entitled to qualified immunity. “Here, we do not

reach qualified immunity because the issue has never been addressed by the district

court.” Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010).

      REVERSED and REMANDED with direction to reconsider Furnace’s

Eighth Amendment claims in light of the decision in Thomas, to apply the Turner

test in evaluating Furnace’s First Amendment claims, and to consider defendants’

qualified immunity defense. We AFFIRM the grant of summary judgment for

defendants on Furnace’s due process claims.

      Each party shall bear its own costs on appeal.




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