Petition for Writ of Certiorari — Jonathan Apodaca, et al., Petitioners v. Rick Raemisch, et al.

No.

IN THE

Supreme Court of the United States

_________

JONATHAN APODACA & JOSHUA VIGIL,

Petitioners,

v.

RICK RAEMISCH & TRAVIS TRANI,

Respondents.

________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

________

PETITION FOR A WRIT OF CERTIORARI

________

ELISABETH L. OWEN

DANIEL M. GREENFIELD

LEVIN-SITCOFF

Counsel of Record

1512 Larimer Street, RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

Suite 650

NORTHWESTERN UNIVERSITY PRITZKER

Denver, CO 80202

SCHOOL OF LAW

(303) 575-9390

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-8538

daniel-greenfield@law.northwestern.edu

Attorneys for Petitioners

i

QUESTION PRESENTED

Whether clearly established Eighth Amendment

law permits prison officials to permanently deprive a

prisoner in solitary confinement of outdoor exercise

without a security rationale.

ii

TABLE OF CONTENTS

Question Presented ............................................................. i

Table Of Authorities ........................................................... i

Petition For A Writ Of Certiorari ....................................... i

Opinion And Order Below .................................................. 1

Jurisdiction ........................................................................ 1

Constitutional Provisions Involved ................................... 1

Introduction........................................................................ 2

Statement Of The Case ...................................................... 3

I.

Petitioners’ Prolonged Solitary Confinement

Without Outdoor Exercise. ........................................ 3

II. The District Court’s Decision. ................................... 5

III. The Tenth Circuit’s Decision. .................................... 8

Reasons For Granting The Petition ................................... 9

I.

The Tenth Circuit’s Decision Creates A Split With

Five Other Circuits Which Have Concluded That

Prison Officials May Not Even Temporarily Deprive

Those In Solitary Confinement Of Outdoor Exercise

Without A Security Rationale. ................................ 10

II. This Case Is A Perfect Vehicle To Resolve This

Issue. ........................................................................ 14

III. The Issues Presented Are Important. ..................... 15

IV. The Tenth Circuit’s Decision Is Wrong. .................. 19

V. Granting Review Would Allow The Court To Revisit

The Law Of Qualified Immunity. ............................ 23

VI. In The Alternative, The Court Should Summarily

Reverse. ................................................................... 26

Conclusion ........................................................................ 27

iii

Appendix A

Order, Apodaca v. Raemisch, No. 15-1454

(10th Cir. Oct. 10, 2017) ............................................. 1a

Appendix B

Opinion, Apodaca v. Raemisch, 864 F.3d 1071 (10th

Cir. 2017) .................................................................... 2a

Appendix C

Order, Apodaca v. Raemisch, 2015 WL 13215657 (D.

Colo. October 30, 2015) ............................................ 16a

Appendix D

Report and Recommendation, Apodaca v. Raemisch,

No. 15-cv-00845 (D. Colo. Sept. 8, 2015) .................. 22a

Appendix E

Exhibit 9 to Defendants’ Motion for Partial

Summary Judgment, Decoteau v. Raemisch,

No. 1:13-cv-03399 (D. Colo. July 6, 2016) ................ 32a

i

TABLE OF AUTHORITIES

Cases

Ajaj v. United States, 293 F. App’x 575,

2008 WL4192378 (10th Cir. 2008) .............................. 6, 7

Allen v. Sakai, 48 F.3d 1082 (9th Cir. 1994) .............. 11-12

Anderson v. Colorado, 887 F. Supp. 2d 1133

(D. Colo. 2012) ........................................................passim

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ................... 19, 20

Bailey v. Schillinger, 828 F.2d 651 (10th Cir. 1987) ......... 8

Bass v. Perin, 170 F.3d 1312 (11th Cir. 1999) ........... 13, 14

Crawford–El v. Britton, 523 U.S. 574 (1998)................... 24

Davis v. Ayala, 135 S. Ct. 2187 (2015)......................passim

Fogle v. Pierson, 435 F.3d 1252

(10th Cir. 2006) ...........................................21, 22, 23, 24,

Glossip v. Gross, 135 S. Ct. 2726 (2015) .......................... 17

Hernandez v. Velazquez, 522 F.3d 556 (5th Cir. 2008) ... 12

Hope v. Pelzer, 536 U.S. 730 (2002) ..........................passim

Lowe v. Raemisch, 864 F.3d 1205 (10th Cir. 2017) ........... 6

Malley v. Briggs, 475 U. S. 335 (1986)............................. 23

In re Medley, 134 U.S. 160 (1890) ................................ 2, 15

Milligan v. Hovey, 17 F. Cas. 380 (No. 9605)

(C.C.D. Ind. 1871).......................................................... 24

Mullenix v. Luna, 136 S. Ct. 305 (2015) ...................passim

Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010) ........... 11

Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001) ............. 13

Perkins v. Kan. Dep’t of Corr., 165 F.3d 803

(10th Circuit 1999) .................................................passim

Procunier v. Martinez, 416 U.S. 396 (1974) ..................... 19

Ruiz v. Texas, 137 S. Ct. 1246 (2017) ................................ 2

Saucier v. Katz, 533 U.S. 194 (2001) ............................... 20

Spain v. Procunier, 600 F.2d 189

(9th Cir. 1979) ................................................3, 10, 11, 17

Thornburgh v. Abbott, 490. U.S. 401 (1989) .................... 19

ii

Tracy v. Swartwout, 35 U.S. 80 (1836) ............................ 24

Walker v. Mintzes, 771 F.2d 920 (6th Cir. 2016) ....... 12, 13

Wyatt v. Cole, 504 U.S. 158 (1992) ........................ 10, 23-24

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .................... 10, 23

Constitutional Provisions

U.S. Const. amend. VIII ..................................................... 1

Other Authorities

Appellant Br., Lowe v. Raemisch, 864 F.3d 1205 (10th Cir.

2017) (No. 16-1300) ......................................................... 6

Craig Haney, Mental Health Issues in Long-Term

Solitary and “Supermax” Confinement, 49 CRIME

& DELINQUENCY 124 (2003) .................................... 16, 17

David H. Cloud, et al., Public Health and Solitary

Confinement in the United States, 105(1) AM. J. PUB.

HEALTH 18 (2015) .......................................................... 16

Exhibit 9 to Defendants’ Motion for Partial

Summary Judgment, ECF No. 50-9, Decoteau v.

Raemisch, No. 1:13-cv-3399 (D. Colo. July 6, 2016) ....... 5

Fyodor Dostoyevsky, THE HOUSE OF THE DEAD

(Constance Garnett trans. 1961) (1862)) ...................... 18

James E. Pfander & Jonathan L. Hunt, Public

Wrongs and Private Bills: Indemnification and

Government Accountability in the Early Republic,

85 N.Y.U. L. REV. 1862 (2010) ................................. 24-25

Kenneth L. Appelbaum, American Psychiatry Should

Join the Call to Abolish Solitary Confinement,

43 J. AM. ACAD. PSYCHIATRY & L. 406 (2015) .......... 15-16

Kit Kinports, The Supreme Court’s Quiet Expansion

of Qualified Immunity, 100 MINN. L. REV.

HEADNOTES 62 (2016) ................................................... 25

Minute Entry for Fairness Hearing, ECF No. 180,

Decoteau v. Raemisch, No. 1:13-cv-3399

(D. Colo. July 6, 2016) ..................................................... 5

iii

Motion for Hearing, ECF No. 115, Decoteau v.

Raemisch, No. 1:13-cv-3399 (D. Colo. July 6, 2016) ....... 5

Order, ECF No. 12, Fogle v. Slack, No. 1:05-cv-01211

(D. Colo. July 20, 2010) ................................................. 22

Rick Raemisch, Opinion, My Night in Solitary,

N.Y. TIMES, Feb. 21, 2014 ............................................. 16

Settlement Agreement, ECF No. 162, Decoteau v.

Raemisch, No. 1:13-cv-3399 (D. Colo. July 6, 2016) ....... 5

Stuart Grassian, Psychiatric Effects of Solitary

Confinement, 22 WASH. U. J. L. & POL’Y 325 (2006)..... 17

William Baude, Is Qualified Immunity Unlawful,

106 CAL. L. REV. 45, 55–61 (2018) ................................ 24

The Yale Book of Quotations (F. Shapiro ed. 2006) ........ 18

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners Jonathan Apodaca and Joshua Vigil

respectfully petition this Court for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Tenth Circuit.

OPINION AND ORDER BELOW

The Tenth Circuit’s opinion (Pet. App. 2a–15a) is

published at 864 F.3d 1071. The opinion of the district

court (Pet. App. 16a–21a) is unpublished, but is

available at 2015 WL 13215657.

JURISDICTION

The judgment of the United States Court of

Appeals for the Tenth Circuit was entered on July 25,

2017. Petitioners timely filed a petition for rehearing,

which the court of appeals denied on October 10, 2017.

On December 19, 2017, Justice Sotomayor granted an

extension of time to file a petition for a writ of

certiorari to March 9, 2018. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the United States

Constitution provides: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.”

2

INTRODUCTION

One hundred and twenty-eight years ago, this

Court expressed grave concerns with solitary

confinement. In re Medley, 134 U.S. 160, 170–71

(1890). More recently, Justice Kennedy has called for

this Court to examine its constitutionality and

lamented that “research still confirms what this Court

suggested over a century ago: Years on end of neartotal isolation exact a terrible price.” Davis v. Ayala,

135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring).

And just last term, Justice Breyer described the

“terrible” trauma inflicted by solitary confinement

and emphasized the need for “constitutional scrutiny”

of the practice. Ruiz v. Texas, 137 S. Ct. 1246, 1247

(2017) (Breyer, J., dissenting from denial on

application for stay of execution).

Here, solitary confinement was imposed in a brutal

manner that exacerbated its cruelty. For twenty-three

years, prisoners in solitary confinement at the

Colorado State Penitentiary (“CSP”) were denied all

access to outdoor recreation. ECF No. 1 at ¶¶ 21–23.

Respondents did not assert that the blanket

prohibition at CSP was compelled by a security

rationale. See ECF No. 18. In fact, Respondents did

not assert any rationale. See id. Yet, Petitioners

Jonathan Apodaca and Joshua Vigil endured that

inhumane regime for eleven months. ECF No. 1 at ¶¶

86–87.

When the Tenth Circuit held that prison officials

were shielded by qualified immunity, it created a split

with five other circuits. In every other circuit to have

considered this issue, prison officials may not even

temporarily deny those in solitary confinement access

to outdoor recreation absent a security justification.

3

There is good reason for the prevailing view: in light

of the isolation and restrictions on out-of-cell

movement inherent to solitary confinement, it has

long been recognized that “some form of regular

outdoor exercise is extremely important to the

psychological and physical well being of the inmates.”

Spain v. Procunier, 600 F.2d 189, 1999 (9th Cir. 1979)

(Kennedy, J.).

This case is an ideal vehicle for considering the

question presented because the record is clean and the

decisions below reasoned. If, however, the Court does

not grant plenary review, it should summarily reverse

for two reasons. First, the appellate decision squarely

conflicts with this Court’s holding that a security

rationale must motivate restrictions of the sort

imposed upon Petitioners. Second, the court of

appeals’ qualified immunity analysis cannot be

reconciled with the inquiry mandated by this Court.

STATEMENT OF THE CASE

I.

Petitioners’

Prolonged

Solitary

Confinement Without Outdoor Exercise.

For more than eleven months, Petitioners were

consigned to solitary confinement at CSP without any

access to outdoor recreation. ECF No. 1 at ¶¶ 86–87.

At CSP, prisoners in solitary confinement are

housed alone in a small cell containing a metal bed,

desk, and toilet. Anderson v. Colorado, 887 F. Supp.

2d 1133, 1137 (D. Colo. 2012). “The cells [at CSP] were

designed in a manner that discourages and largely

restricts vocal communication between cells.”

Anderson, 887 F. Supp. 2d at 1137. Petitioners were

confined to their cells at CSP for twenty-three hours a

day, five days out of the week, and twenty-four hours

4

a day the remaining two. ECF No. 1 at ¶ 25. In short,

“[t]he inmates’ daily existence [at CSP] is one of

extreme isolation.” Anderson, 887 F. Supp. 2d at 1137.

As members of this Court have recognized,

prolonged solitary confinement inflicts profound

harm. See, e.g., Ayala, 135 S. Ct. at 2209 (Kennedy, J.,

concurring). And CSP’s solitary confinement regime

was uniquely harmful. From 1993 until 2016,

prisoners in solitary confinement at CSP were denied

access to outdoor recreation. ECF No. 1 at ¶¶ 21–23.

Respondents did not assert that the blanket

prohibition at CSP was compelled by a security

rationale. See ECF No. 18. In fact, Respondents did

not assert any rationale. See id. Notably, “CSP itself

was designed with a central open-air courtyard that

could be used for outdoor exercise.” Anderson, 887 F.

Supp. 2d at 1141; see also ECF No. 1 at ¶ 28.

As a consequence of the outdoor exercise ban, on

those days a Petitioner was permitted to leave his cell,

he was escorted to another cell-like space where he

could recreate alone for approximately one hour. See

generally ECF No. 1 at ¶ 25. As one court has observed

of the exercise room available to prisoners in solitary

confinement at CSP:

This room is empty except for a chin-up

bar. It has two vertical “windows,”

approximately five feet by six inches in

size, which are not glassed but instead

are covered with metal grates. The

grates have holes approximately the size

of a quarter that open to the outside.

Anderson, 887 F. Supp. 2d at 1137 (quotation marks

in original); see also ECF No. 1 at ¶ 25; Pet. App. 32a

5

(reproducing a photograph of that room from another

challenge to the outdoor exercise restriction at CSP,

Exhibit 9 to Defendants’ Motion for Partial

Summary Judgment, ECF No. 50-9, Decoteau v.

Raemisch, No. 1:13-cv-03399 (D. Colo. July 6, 2016)).

On April 22, 2015, Petitioners filed the present

action, seeking damages and alleging that the

deprivation of outdoor exercise violated the Eighth

Amendment. ECF No. 1.

Approximately five months later, in response to

another lawsuit, Respondents entered into a

settlement agreement obligating them to provide

outdoor exercise to prisoners at CSP. See Settlement

Agreement, ECF Nos. 162, and Minute Entry for

Fairness Hearing, ECF No. 180, Decoteau v.

Raemisch, No. 1:13-cv-3399 (D. Colo. July 6, 2016). As

a result, the Colorado Department of Corrections

(“CDOC”) erected exercise areas at CSP where

prisoners in segregation now recreate outdoors. See

generally Motion for Hearing at 2, ECF No. 115,

Decoteau v. Raemisch, No. 1:13-cv-3399 (D. Colo. July

6, 2016).

II.

The District Court’s Decision.

On June 19, 2015, Respondents filed a motion to

dismiss. ECF No. 18. In relevant part, they argued

that they were entitled to qualified immunity. Id. at

9–11. Respondents conceded that “[t]he extended

deprivation of outdoor exercise to inmates in

segregation conditions may constitute a violation of

the Eighth Amendment.” Id. at 6 (citing Perkins v.

Kan. Dep’t of Corr., 165 F.3d 803, 805 (10th Cir.

1999)). They contended, however, that only outdoor

exercise deprivations of twelve months or more could

6

violate the Eighth Amendment. Id. at 8. Because

Petitioners were deprived of outdoor exercise for

eleven months, Respondents were entitled to qualified

immunity, they argued. 1 Id. at 10–11.

The district court referred the matter to the

magistrate judge, which recommended denying

Respondents’ motion to dismiss. Pet. App. 23a.

Subsequently, the district court issued a reasoned

opinion

adopting

the

magistrate

judge’s

recommendation. Pet App. 21a.

Nearly two decades ago, the district court

explained, the Tenth Circuit decided Perkins v. Kan.

Dep’t of Corrections, 165 F.3d 803, 810 (10th Cir.

1999). Pet. App. 18a–19a. That decision “makes

pellucid” that “that a prisoner’s Eighth Amendment

claim for denial of access to outdoor recreation is not

automatically barred simply because the deprivation

lasts less than a prescribed number of months.” Pet.

App. 19a.

The district court also found that a subsequent

Tenth Circuit decision, Ajaj v. United States, 293 F.

App’x 575 (10th Cir. 2008) (unpublished), further

entrenched the rule of Perkins. Pet. App. 19a. “Even if

Perkins itself were somehow unclear on this point—

1 In connection with a case challenging a more than two-year

deprivation of outdoor exercise at CSP, see Lowe v. Raemisch, 864

F.3d 1205 (10th Cir. 2017), Respondents argued, somewhat

inconsistently, that a two-plus year deprivation was also

insufficiently lengthy to put officials on notice that their conduct

was unlawful. See Appellant Br. at 17, Lowe, 864 F.3d 1205 (10th

Cir. 2017) (No. 16-1300). Petitioner in that case, represented by

undersigned counsel, also seeks this Court’s review of the Tenth

Circuit’s qualified immunity decision. See Lowe v. Raemisch, No.

17A650 (U.S. Dec. 18, 2017).

7

which it is not—former Chief Judge Henry’s

concurring opinion in Ajaj v. United States should

have served to confirm the Circuit’s position on this

issue.” Pet. App. 19a (citing Ajaj, 293 Fed App’x at

587–91 (Henry, C.J., concurring)). There, “Judge

Henry took especial care to examine the precedents

both in this circuit and others before concluding that

‘a prisoner who has been deprived of outdoor exercise

for one year . . . could make out an Eighth Amendment

claim under the summary judgment standard of

review.’” 2 Pet. App. 20a (quoting Ajaj, 293 F. App’x at

588) (Henry, C.J., concurring) (emphasis in the

original)).

Finally, the district court called attention to

Respondents’ alleged “fail[ure] to provide outdoor

recreation opportunities to all inmates at CSP even

after a Colorado district court found that practice

violated the Eighth Amendment.” Pet. App. 20a–21a

(citing Anderson, 887 F. Supp. 2d at 1142). In

Anderson, the district court concluded that prison

officials had violated the Eighth Amendment by

withholding outdoor exercise for more than a decade

from a prisoner in solitary confinement at CSP:

CDOC officials know that the CSP is out

of step with the rest of the nation. They

have been told by the experts whom they

hired that access to outdoor recreation at

2 Ultimately, the Ajaj Plaintiff, a prisoner at a federal facility

who regularly declined the opportunity to recreate outside, had

not come forth, at summary judgment, with sufficient evidence

that his Eighth Amendment right to outdoor exercise had been

violated. Ajaj, 293 Fed. App’x at 584; see Pet. App. 20a & n.5.

8

the CSP is deficient. However, so far as

the evidence in this case shows, nothing

has been done to provide any form of

outdoor exercise to Mr. Anderson or to

other inmates who have been held in

administrative segregation at the CSP

for long periods.

Anderson, 887 F. Supp. at 1142.

III.

The Tenth Circuit’s Decision.

Respondents took an interlocutory appeal of the

district court’s order denying their motion to dismiss.

They reiterated that Tenth Circuit law does not

clearly establish that the denial of outdoor exercise for

a period of eleven months violates the Eighth

Amendment. Appellant Br. at 18–25.

Without considering the absence of a security

rationale, the court of appeals reversed, holding that

Respondents were entitled to qualified immunity. Pet.

App. 15a.

“Roughly three decades ago,” the Tenth Circuit

“recognized the importance of outdoor exercise for

prisoners,” noting that “there is substantial

agreement among the cases . . . that some form of

regular outdoor exercise is extremely important to the

psychological and physical well being of inmates . . . .”

Pet. App. 9a (quoting Bailey v. Schillinger, 828 F.2d

651, 653 (10th Cir. 1987) (per curiam)). Nonetheless,

the court opined that the question in this case—

whether denying outdoor exercise to a prisoner in

solitary confinement for eleven months violates the

Eighth Amendment—remained open. Pet. App. 3a.

9

First, the court of appeals considered its own

precedent insufficiently probative of the right at issue.

Pet. App. 9a–13a. Second, the court observed that the

district court finding in Anderson, that CSP prison

officials had violated the Eighth Amendment by

denying outdoor exercise to a prisoner in solitary

confinement, was irrelevant for purposes of qualified

immunity. Pet. App. 14a–15a. The court of appeals did

not consider whether “[t]he obvious cruelty inherent

in this practice should have provided respondents

with some notice that their alleged conduct violated

[Petitioners’] constitutional protection against cruel

and unusual punishment.” See Hope v. Pelzer, 536

U.S. 730, 745 (2002).

Petitioners timely filed a petition for rehearing en

banc, which was denied. Pet. App. 1a.

REASONS FOR GRANTING THE PETITION

The circuit split created by the court of appeals

concerns a fundamental constitutional deprivation

and warrants this Court’s review.

For more than a century, this Court has expressed

grave concerns with solitary confinement, a

restriction imposed here in brutal fashion. In this

case, the court of appeals concluded that qualified

immunity shielded prison officials who permanently

denied outdoor recreation to prisoners consigned to

solitary confinement.

This holding creates a split with five other circuits.

Every other circuit to consider the issue has concluded

that prison officials may not even temporarily deprive

those subjected to solitary confinement of outdoor

exercise unless the restriction is compelled by a

security rationale. As one court recognized decades

10

ago, “[t]here is substantial agreement among the

cases in this area that some form of regular outdoor

exercise is extremely important to the psychological

and physical well being of the inmates.” Spain, 600

F.2d at 199 (Kennedy, J.). That proposition applies

with particular force to prisoners in solitary

confinement. See id.

While the right at stake is clearly established

pursuant to this Court’s qualified immunity

jurisprudence, this case also presents an excellent

opportunity to respond to concerns that the doctrine

has “diverged to a substantial degree from the

historical standards” that prevailed when Congress

enacted Section 1983. See, e.g., Wyatt v. Cole, 504 U.S.

158, 170 (1992) (Kennedy, J., joined by Scalia, J.,

concurring); Ziglar v. Abbasi, 137 S. Ct. 1843, 1871

(2017) (Thomas, J., concurring).

Because the record is clean and the decisions below

reasoned, this case is an ideal vehicle for considering

the question presented.

I.

The Tenth Circuit’s Decision Creates A

Split With Five Other Circuits Which Have

Concluded That Prison Officials May Not

Even Temporarily Deprive Those In

Solitary

Confinement

Of

Outdoor

Exercise Without A Security Rationale.

The Tenth Circuit stands alone. In five other

circuits, prison officials may not inflict even a

temporary restriction of this nature without a security

rationale. Spain v. Procunier, 600 F.2d 189, 192 (9th

Cir. 1979) (Kennedy, J.), is the seminal opinion.

Subsequent decisions are faithful to its principles.

11

Ninth Circuit. In Spain, several prisoners who

were charged with or convicted of rioting and other

violent acts were assigned to an “adjustment center”

used to segregate and discipline disruptive prisoners.

600 F.2d at 192. The prisoners were then denied all

outdoor exercise for periods of up to four-and-a-half

years. Id. The court affirmed the district court finding

that “[t]he denial of fresh air and regular exercise

constitutes cruel and unusual punishment,” without

reaching the question of “whether a denial is a per se

violation of the eighth amendment.” Id. at 199.

Although the state argued that the deprivation was a

security measure to prevent violent attacks and

escape attempts, the court found that the “concerns

justif[ied] not permitting plaintiffs to mingle with the

general prison population but [did] not explain why

other exercise arrangements were not made,” noting

that “[t]he cost or inconvenience of providing adequate

facilities is not a defense to the imposition of a cruel

punishment.” Id. at 200. “Several factors combined to

make outdoor exercise a necessity. [Administrative

Confinement] prisoners were in continuous

segregation, spending virtually 24 hours every day in

their cells with only meager out-of-cell movements

and corridor exercise. Their contact with other

persons was minimal.” Id. at 199; see also Norwood v.

Vance, 591 F.3d 1062, 1068–70 (9th Cir. 2010) (in light

of “extraordinary violence gripping the prison [that]

threatened staff and inmates alike,” qualified

immunity shielded prison officials responsible for

temporary outdoor exercise restriction); Allen v.

Sakai, 48 F.3d 1082, 1087–88 (9th Cir. 1994) (prison

officials not entitled to qualified immunity because

prisoner in solitary confinement was deprived of

outdoor

exercise

without

an

antecedent

12

“determination by prison officials that he presented a

‘grave security risk when outside his cell’ and that

measures were necessary to deter violent behavior”)

(citation omitted)).

Fifth Circuit. In Hernandez v. Velazquez, a

prisoner in solitary confinement was deprived of

outdoor exercise for thirteen months after he was

identified as a member of the Texas Syndicate, a

violent prison gang engaged in “planning a gang war”

in retaliation for the murder of one of its members by

a rival prison gang. 522 F.3d 556, 558–59 (5th Cir.

2008) (per curiam). Prison officials determined that

withholding outdoor exercise was necessary to

preserve institutional security in light of threatened

gang violence. Id. Moreover, the Eighth Amendment

was not violated because Hernandez “presented no

evidence at summary judgment” that he “suffered a

serious illness or injury” as a result of the deprivation.

Id. at 561. The court explained that its analysis

“follow[ed] from the principle that only the

unnecessary and wanton infliction of pain implicates

the Eighth Amendment.” Id. at 560–61 (internal

quotation marks omitted).

Sixth Circuit. In Walker v. Mintzes, prison

officials drastically decreased yard time after an

outbreak of “rioting . . . burning and looting,” with

prisoners in solitary confinement receiving virtually

no outdoor time for a year. 771 F.2d 920, 924, 926–27

& n.3 (6th Cir. 2016). The district court found the

deprivation violated the Eighth Amendment, but,

without explanation, ordered different minimum yard

times depending on the classification of each prisoner.

Id. at 926–27. In light of “the inmates’ constitutional

need for time outdoors,” the court remanded for

13

“further explanation or rationale with respect to the

bases for these differences . . . taking into account, of

course, prison security requirements and conditions.”

Id. at 927–28.

Seventh Circuit. In Pearson v. Ramos, a prisoner

was consigned to solitary confinement and denied

outdoor exercise for one year in response to grave

misconduct, including arson and the brutal assault of

a guard. 237 F.3d 881, 885 (7th Cir. 2001). Under the

circumstances, the court held that the restriction did

not violate the Eighth Amendment. Id. As the court

explained, “[t]o allow [the prisoner] exercise in the

yard would have given him additional opportunities to

attack prison staff and set fires. Preventing access to

the yard was a reasonable method of protecting the

staff and other prisoners from his violent

propensities.” Id. The court also noted that qualified

immunity would shield prison officials in light of the

security rationale for the restriction. Id. at 884.

Eleventh Circuit. In Bass v. Perin, two prisoners

designated a threat to security—for possession of

firearms, the murder of a prison guard, and attempted

escape—were assigned to solitary confinement and

deprived of all outdoor exercise for more than two

years. 170 F.3d 1312, 1315 (11th Cir. 1999). The court

recognized the gravity of the restriction, observing

that “[a]lthough being in solitary confinement with

minimal time outside is only marginally different

from being in solitary confinement with no time

outside, there is nevertheless a significant difference

between some time outside—even a minimal

amount—and none at all.” Id. at 1316. The “pain

inflicted on the plaintiffs, however, cannot be said to

be unnecessary” because “it would be hard to imagine

14

a situation in which two persons had shown a greater

threat to the safety and security of the prison.” Id.

Consequently, the court held that the Eighth

Amendment was not violated. Id. at 1317.

Petitioners’ claim that they were subjected to an

extreme form of solitary confinement was thrown out

because they were imprisoned in Colorado. Had they

been incarcerated in one of the twenty-two states that

comprise the Fifth, Sixth, Seventh, Ninth, and

Eleventh Circuits, Petitioners’ claim would not have

been dismissed.

II.

This Case Is A Perfect Vehicle To Resolve

This Issue.

This case is ideally suited to resolving the question

of whether clearly established Eighth Amendment

law permits prison officials to permanently deprive a

prisoner in solitary confinement of outdoor exercise

without a security rationale.

The decision below squarely presents the issue

raised by this petition. That prison officials are

purportedly entitled to qualified immunity was the

court of appeals’ sole reason for reversing the district

court. Both the district court and the court of appeals

examined the question in substantial, reasoned

decisions.

The record below is straightforward. Generally

speaking, prisoners in solitary confinement can be

temporarily denied access to outdoor recreation as a

consequence of a variety of dangerous misconduct. See

supra pp. 11–14. In the typical case, the specific

asserted security rationale must be balanced against

the right at issue. And the record concerning each is

likely to be nuanced given the complexities of prison

15

security. Id. This case, by contrast, offers unusual

clarity in that prison officials have not asserted an

individualized security rationale for withholding

outdoor access from Petitioners: the restriction was

permanent and applied indiscriminately to all

prisoners subjected to solitary confinement.

For each of these reasons, this case squarely raises

the question presented.

III.

The Issues Presented Are Important.

The split created by the decision below presents a

question of fundamental importance.

1. Long-term solitary confinement is devastating

to human beings. For greater than a century, this

Court has expressed significant doubts about solitary

confinement. In 1890, the Court described it as “an

additional punishment of the most important and

painful character[.]” Medley, 134 U.S. at 171. Already,

this Court had come to recognize its destructive

effects, noting that after even one month of solitary

confinement many prisoners descended into a “semifatuous condition,” “became violently insane,”

“committed suicide,” and “did not recover sufficient

mental activity to be of any subsequent service to the

community.” Id. at 168.

Since that time, more evidence that solitary

confinement causes profound harm has accrued.

Indeed, “[n]early every scientific inquiry into the

effects of solitary confinement over the past 150 years

has concluded that subjecting an individual to more

than 10 days of involuntary segregation results in a

distinct set of emotional, cognitive, social, and

physical pathologies.” Kenneth L. Appelbaum,

American Psychiatry Should Join the Call to Abolish

16

Solitary Confinement, 43 J. AM. ACAD. PSYCHIATRY &

L. 406, 410 (2015) (quoting David H. Cloud, et al.,

Public Health and Solitary Confinement in the United

States, 105(1) AM. J. PUB. HEALTH 18, 21 (2015))

(alteration in original). As another expert observes,

“[e]mpirical research on solitary and supermax-like

confinement has consistently and unequivocally

documented the harmful consequences of living in

these kinds of environments.” Craig Haney, Mental

Health Issues in Long-Term Solitary and “Supermax”

Confinement, 49 CRIME & DELINQUENCY 124, 130

(2003).

Correctional experts like the Executive Director of

the Colorado Department of Corrections (“CDOC”),

Respondent in this case, have also called attention to

the dangers of solitary confinement. In fact, more than

a year before Petitioners filed this lawsuit,

Respondent wrote an op-ed in the New York Times,

describing the twenty hours he spent in a CDOC

solitary confinement cell. Rick Raemisch, Opinion, My

Night in Solitary, N.Y. TIMES, Feb. 21, 2014, at A25.3

He noted that “Terry Kupers, a psychiatrist and

expert on confinement,” has long documented the

“many psychological effects of solitary.” Id. And he

wondered, if he had to live in solitary confinement,

“[h]ow long it would take before [it] chipped [] away”

his “mind.” Id. Whatever the precise measure,

Respondent was “confident that it would be a battle

[he] would lose.” Id.

The consensus among experts that prolonged

solitary confinement is uniquely destructive is

3 Available at https://www.nytimes.com/2014/02/21/opinion/my-

night-in-solitary.html.

17

reflected in calls from members of this Court to

examine its constitutionality. See, e.g., Ayala, 135 S.

Ct. at 2210 (Kennedy, J., concurring); Glossip v. Gross,

135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting).

Justice Breyer has observed that “it is well

documented that . . . prolonged solitary confinement

produces numerous deleterious harms” including

hallucination, panic, paranoia, and self-mutilation.

Glossip, 135 S. Ct. at 2765 (Breyer, J., dissenting)

(citing Haney, supra, at 130; Stuart Grassian,

Psychiatric Effects of Solitary Confinement, 22 WASH.

U. J. L. & POL’Y 325, 331 (2006)). And Justice Kennedy

has emphasized “[t]he human toll wrought by

extended terms of isolation” and described solitary

confinement as a “regime that will bring you to the

edge of madness, perhaps to madness itself.” Ayala,

135 S. Ct. at 2209 (Kennedy, J., concurring).

2. This case presents an especially cruel

incarnation of solitary confinement—isolation

compounded by being denied access to the outdoors for

nearly a year. Petitioners’ only respite from their

isolation cell was a similarly-sized, even starker

room—deemed an “exercise” cell because of the

existence of a single pull-up bar. Pet. App. 32a. Their

“out-of-cell” recreation time consisted of walking

around another cell. As Justice Kennedy observed

nearly 40 years ago, the isolation and inactivity

intrinsic to solitary confinement “combined to make

outdoor exercise a necessity.” Spain, 600 F.2d at 199.

The “dehumanizing effect of solitary confinement,”

Glossip, 135 S. Ct. at 2765 (Breyer, J., dissenting),

was amplified here in an extreme manner—a

circumstance that could, without this Court’s

intervention, metastasize. This Court should grant

18

certiorari to ensure that prison officials have a

disincentive against implementing a regime that may

exceed human capacity to bear and that a humane

society cannot tolerate. See Ayala, 135 S. Ct. at 2210

(Kennedy, J., concurring) (“The degree of civilization

in a society can be judged by entering its prisons.”

(citing The Yale Book of Quotations 210 (F. Shapiro

ed. 2006) quoting Fyodor Dostoyevsky, THE HOUSE OF

THE DEAD (Constance Garnett trans. 1961) (1862))).

This Court has granted certiorari in the face of

qualified immunity shielding prison officials from

liability for disturbing conduct even where relatively

few prisoners had been or were likely to be subjected

to the challenged policy. See Hope, 536 U.S. at 733.

Yet, even were this Court to ignore the relevance of

this case to the solitary confinement regime itself, it

did not occur in isolation. For twenty-three years,

prison officials applied this restriction to all prisoners

languishing in solitary confinement at the State’s

largest supermax facility. And while the restriction at

CSP was mercifully discontinued in 2016, there is

nothing to stop officials from reviving it at another

prison in the future.

3. If this Court ultimately considers whether the

Eighth Amendment imposes limitations on solitary

confinement generally, that question will require an

intricate balancing of security interests and

constitutional rights. But the issue here is narrow,

and stark—does solitary confinement with the added

cruelty of being denied access to the outside violate

the Eighth Amendment when unaccompanied by a

security rationale?

Respondents did not claim a security rationale for

their categorical ban on outdoor exercise for solitary

19

confinement prisoners at CSP. Nor did they explain

why CSP needed to ban outdoor exercise for solitary

confinement prisoners while solitary confinement

prisoners elsewhere have long been allowed outside.

See supra pp. 11–14. In a broader case, “the judiciary

may be required, within its proper jurisdiction and

authority, to determine whether workable alternative

systems for long-term [solitary] confinement exist.”

Ayala, 135 S. Ct. at 2210 (Kennedy, J., concurring). At

minimum, however, the experience of other states

shows that solitary confinement with outdoor exercise

is a “workable alternative system[ ]” to solitary

confinement without outdoor exercise. See also

Procunier v. Martinez, 416 U.S. 396, 414 n. 14 (1974)

(“While not necessarily controlling, the policies

followed at other well-run institutions would be

relevant to a determination of the need for a

particular type of restriction.”), overruled on other

grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989).

IV.

The Tenth Circuit’s Decision Is Wrong.

The decision below is incorrect because it

misapplies

this Court’s

qualified

immunity

jurisprudence. Although “[q]ualified immunity gives

government officials breathing room to make

reasonable but mistaken judgments about open legal

questions,” Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011), this Court has squarely rejected the theory

that prison officials are immune from liability “unless

the very action in question has previously been held

unlawful.” Hope, 536 U.S. at 739. In other words, this

Court “do[es] not require a case directly on point, but

existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix v.

20

Luna, 136 S. Ct. 305, 308 (2015) (quoting al-Kidd, 563

U.S. at 741).

In this case, the question is whether it would be

clear to a reasonable official that denying outdoor

exercise was unlawful “in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194–95, 202

(2001). In accordance with this Court’s qualified

immunity jurisprudence, it has long been beyond

debate that the Eighth Amendment does not

countenance Petitioners’ mistreatment.

First, “[t]he obvious cruelty inherent in this

practice should have provided respondents with some

notice that their alleged conduct violated [Petitioners’]

constitutional protection against cruel and unusual

punishment.” Hope, 536 U.S. at 745. Depriving a

prisoner of access to the outdoors for nearly a year is

shocking. The compulsion to go outside and feel the

wind and sun is universal. Impeding it for nearly a

year ensured that Petitioners were “treated in a way

antithetical to human dignity.” Hope, 536 U.S. at 745.

Worse still is that this obviously cruel regulation

was imposed without a corresponding security

rationale. This Court has long made clear that,

consistent with the Eighth Amendment, restrictions

of this nature may not be inflicted without a security

rationale. Hope, 536 U.S. at 738 (this Court’s Eighth

Amendment “precedent clearly prohibits” extreme

restrictions absent countervailing “safety concerns” or

“an emergency situation”). Prison officials have not,

however, asserted a security rationale for their policy.

Second, the Tenth Circuit’s own precedent further

emphasized that outdoor exercise could not be

withheld for eleven months without violating the

21

Eighth Amendment. In particular, the Tenth Circuit’s

decisions in Perkins v. Kan. Dep’t of Corr., 165 F.3d

803 (10th Cir. 1999), and Fogle v. Pierson, 345 F.3d

1252 (10th Cir. 2006), “placed the . . . constitutional

question beyond debate.” See Mullenix, 136 S. Ct. at

308.

In Perkins, the Tenth Circuit held that a Kansas

prisoner in solitary confinement adequately stated an

Eighth Amendment claim where prison officials

denied him outdoor exercise for nine months:

We conclude that plaintiff’s complaint

presents facts from which a factfinder

could infer both that prison officials

knew of a substantial risk of harm to

plaintiff’s well being resulting from the

lengthy denial of outdoor exercise and

that they disregarded the harm.

Therefore, the district court erred in sua

sponte dismissing plaintiff’s Eighth

Amendment claim for deprivation of

outdoor exercise.

165 F.3d at 810.

Perkins alone was enough to put Respondents on

notice that their actions were unlawful. But Perkins is

not the only Tenth Circuit case that provided notice.

In Fogle, the court of appeals reviewed a claim

concerning the withholding of outdoor exercise for

three years from a prisoner in solitary confinement.

435 F.3d at 1260. The Tenth Circuit held 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.”

Id. As the Fogle court recognized, “the extended

22

deprivation of outdoor exercise” could represent an

“excessive risk to [Fogle’s] well-being.” Id. (citation

omitted).

Moreover, the Fogle decision involves facts nearly

identical to those at issue here. The deprivation of

outdoor exercise occurred at CSP, the same prison

implicated in this case. See Order at 3, ECF No. 12,

Fogle v. Slack, No. 1:05-cv-01211 (D. Colo. July 20,

2010). And, as is the case here, Fogle “acknowledge[d]

that he [was] allowed access to a cell with a pull-up

bar a few times each week”—i.e., the same indoor

recreation room available to Petitioners. Fogle, 435

F.3d at 1260 n.4. 4

Fogle and Perkins provided prison officials with

clear notice that a nearly year-long deprivation of

outdoor exercise is forbidden. Indeed, they are far

more illustrative of a clearly established right than

the Eleventh Circuit precedent this Court relied upon

in Hope v. Pelzer for the proposition. See Hope, 536

U.S. at 742–43. It is difficult to imagine what more

precision the Tenth Circuit would require before

concluding that Respondents were on notice that it

was unlawful to deprive Petitioners of outdoor

4 Fogle does not represent the only time prison officials were put

on notice that the outdoor exercise ban imposed at CSP violated

the Eighth Amendment. See Anderson, 887 F. Supp. 2d at 1142.

Even assuming that the district court order in Anderson does not

constitute clearly established law, it nevertheless provided

Respondents with substantial notice that their conduct was

unconstitutional. See Hope, 536 U.S. at 744–45 (Department of

Justice report decrying the challenged conduct, although not

communicated to defendants, nevertheless “buttressed” the

“conclusion that a reasonable person would have known of the

violation”) (internal quotations and citations omitted)).

23

exercise for nearly a year. Perhaps they would require

a Tenth Circuit case with identical facts, but this

Court has repeatedly stated that is not necessary. See,

e.g., Hope, 536 U.S. at 739–41; Mullenix, 136 S. Ct. at

308. To overcome Respondents’ qualified immunity

defense, Petitioners must demonstrate the officials in

question had “fair warning” of what the law required.

See, e.g., Hope, 536 U.S. at 741. That standard has

been met here. See Fogle, 345 F.3d 1252; Perkins, 165

F.3d 803.

In sum, the combined weight of the obvious cruelty

inherent in the practice, this Court’s precedent, and

Tenth Circuit authority permits only two conclusions:

prison officials were “incompetent” or they “knowingly

violate[d] the law.” Mullenix, 136 S. Ct. at 308

(quoting Malley v. Briggs, 475 U. S. 335, 341 (1986)).

V.

Granting Review Would Allow The Court

To Revisit The Law Of Qualified

Immunity.

Although the right at issue here is clearly

established under the Court’s qualified immunity

doctrine, this case also offers an opportunity to

consider whether the law of qualified immunity

comports with the rules that prevailed when Congress

enacted 42 U.S.C. § 1983.

Several members of this Court have observed that

the qualified immunity doctrine has “diverged from

the historical inquiry mandated by the statute.”

Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017)

(Thomas, J., concurring); accord Wyatt v. Cole, 504

U.S. 158, 170 (1992) (Kennedy, J., joined by Scalia, J.,

concurring) (“In the context of qualified immunity for

public officials, however, we have diverged to a

24

substantial degree from the historical standards”);

Crawford–El v. Britton, 523 U.S. 574, 611 (1998)

(Scalia, J., joined by Thomas, J., dissenting) (“[O]ur

treatment of qualified immunity under 42 U.S.C. §

1983 has not purported to be faithful to the commonlaw immunities that existed when § 1983 was

enacted.”).

Indeed, the decision below rested on an immunity

that would not have been available to Respondents

when § 1983 was enacted. See, e.g., William Baude, Is

Qualified Immunity Unlawful, 106 CAL. L. REV. 45,

55–61 (2018). In 1871, most government officers were

held strictly liable for harm resulting from illegal or

unconstitutional misconduct, and the burden of such

liability was ameliorated by the availability of

indemnification. Id. at 56–57; see also, e.g., Tracy v.

Swartwout, 35 U.S. 80, 98–99 (1836) (“Some personal

inconvenience may be experienced by an officer who

shall be held responsible in damages for illegal acts

done under instructions of a superior; but, as the

government in such cases is bound to indemnify the

officer, there can be no eventual hardship.”); Milligan

v. Hovey, 17 F. Cas. 380 (No. 9605) (C.C.D. Ind. 1871)

(finding an officer liable if his actions contravened the

Constitution).

At common law, the purpose of subjecting

government officials who violated a constitutional

right or otherwise engaged in illegal misconduct to

strict liability “was to ensure legal accountability for

the benefit of the victim of the government

wrongdoing and to place Congress in charge of

protecting officers from the consequences of

potentially ruinous personal liability.” James E.

Pfander & Jonathan L. Hunt, Public Wrongs and

25

Private Bills: Indemnification and Government

Accountability in the Early Republic, 85 N.Y.U. L.

REV. 1862, 1914 (2010). Qualified immunity, much

like indemnity, relieves the wrongdoer from financial

responsibility but, unlike indemnity, leaves the victim

of the wrongdoer bearing the ultimate burden. Where

there is a violation of a prisoner’s constitutional

rights, awarding prison officials qualified immunity

cannot be squared with common law immunities that

existed at the time § 1983 was enacted. Such

expansive grants of immunity allow officers to avoid

liability for their actions, while victims are left

without redress under the statute specifically

designed for such violations.

Moreover, qualified immunity is least compelling

where the challenged action is deliberative rather

than heat-of-the-moment. Most of this Court’s recent

qualified immunity cases have involved split-second

decision making by police officers in the field, often

during potentially life-threatening situations. See,

e.g., Mullenix, 136 S. Ct. at 308 (observing that

qualified immunity is especially compelling in the

Fourth Amendment context, as “[i]t is sometimes

difficult for an officer to determine how the relevant

legal doctrine . . . will apply to the factual situation

the officer confronts.” (internal quotation omitted));

see also Kit Kinports, The Supreme Court’s Quiet

Expansion of Qualified Immunity, 100 MINN. L. REV.

HEADNOTES 62, 63 nn.6 & 7 (2016) (collecting recent

cases). Such circumstances may not lend themselves

to second guessing. This case, in contrast, is the result

of a policy implemented in 1993. From that time, until

2016 when the ban was rescinded, prison officials had

ample time to consider and re-consider their decision

26

to withhold outdoor exercise without any of the

exigencies that typically accompany this Court’s

qualified immunity cases. 5

For each of the aforementioned reasons, this Court

should grant certiorari, resolve the circuit split

created by the Tenth Circuit, and correct the Tenth

Circuit’s decision

VI.

In The Alternative, The Court Should

Summarily Reverse.

If the Court chooses not to grant plenary review, it

should summarily reverse the court of appeals for two

reasons.

First, without examining whether a security

rationale compelled the outdoor exercise restriction

imposed by prison officials, the court of appeals held

that qualified immunity shielded them from liability.

This error warrants summary reversal because it so

squarely conflicts with this Court’s precedent.

As set forth above, it has long been clear that

restrictions like those imposed upon Petitioners may

not be instituted without a security rationale. See,

e.g., Hope, 536 U.S. at 738. Prison officials have not,

however, asserted a security rationale for their policy.

Second, the court of appeals’ qualified immunity

analysis diverged radically from the inquiry

mandated by this Court. The court of appeals would

This Court’s guidance on qualified immunity would be

particularly helpful in the context of enduring prison conditions

that are the result of policies maintained under circumstances

conducive to careful deliberation.

5

27

require an identical case to overcome Respondents’

qualified immunity defense. However, this Court has

long made it clear that such precision is not required.

Hope, 536 U.S. at 739–41; Mullenix, 136 S. Ct. at 308.

Rather, Petitioners must show that the officials in

question had “fair warning” of what the law required.

See, e.g., Hope, 536 U.S. at 741. That burden is

satisfied here. See Fogle, 345 F.3d 1252; Perkins, 165

F.3d 803.

Because the decision of the court of appeals

conflicts dramatically with this Court’s precedent,

summary reversal is appropriate.

CONCLUSION

For the foregoing reasons, the Court should grant

either the petition for a writ of certiorari or summary

reversal.

28

Respectfully submitted,

DANIEL M. GREENFIELD*

Counsel of Record

RODERICK AND SOLANGE

MACARTHUR JUSTICE CENTER

NORTHWESTERN UNIVERSITY PRITZKER

SCHOOL OF LAW

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-8538

daniel-greenfield@law.northwestern.edu

ELISABETH L. OWEN

LEVIN-SITCOFF

1512 Larimer Street, Suite 650

Denver, CO 80202

(303) 575 -9390

Attorneys for Petitioners

* Oxford University student Joshua Pickar and

Northwestern University student Rosalind Dillon

contributed to the preparation of this petition.