Petition for Writ of Certiorari — Rice v. Mitchell

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

NATHAN A. RICE, BOBBY R. WATSON and

BOB SEYMOUR,

Petitioners,

Vv.

JAMES CALVIN MITCHELL,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LACY H. THORNBURG

Attorney General of North Carolina

James Peeler Smith

Special Deputy Attorney General

*Sylvia Hargett Thibaut

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 733-7188

Attomeys for Petitioners

*Counsel of Record

Il.

QUESTIONS PRESENTED

DID THE FOURTH CIRCUIT COURT OF APPEALS ERR BY

GRAFTING THE SUBJECTIVE COMPONENT OF WILSON

y. SEITER ONTO THE PURELY OBJECTIVE STANDARD

OF HARLOW vy. FITZGERALD, THEREBY DENYING

QUALIFIED IMMUNITY AND CREATING A SEPARATE

OFFENSIVE THEORY OF LIABILITY IN DIRECT CON-

TRAVENTION OF RULINGS OF THIS COURT?

DID THE FOURTH CIRCUIT COURT OF APPEALS ERR BY

APPLYING THE REPUDIATED "LEAST RESTRICTIVE

ALTERNATIVE" TEST, RATHER THAN THE FOUR-PRONG

ANALYSIS REQUIRED BY TURNER y. SAFLEY, THEREBY

DENYING QUALIFIED IMMUNITY IN A CLAIM ARISING

FROM DENIAL OF OUT-OF-CELL EXERCISE

PRIVILEGES TO A VIOLENTLY ASSAULTIVE INMATE

WHEN LESSER MEASURES HAD BEEN REPEATEDLY

ATTEMPTED AND CONSISTENTLY FAILED?

DID THE FOURTH CIRCUIT COURT OF APPEALS ERR BY

FAILING TO APPLY THE PARTICULARIZED STANDARD

OF REVIEW FOR A QUALIFIED IMMUNITY DEFENSE

REQUIRED BY ANDERSON v. CREIGHTON?

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

TABLE OF CONTENTS

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

STATEMENT OF THE CASE .n cece ccccsccccccsccces

I.

THE FOURTH CIRCUIT COURT OF APPEALS

ERRED BY GRAFTING THE SUBJECTIVE COM-

PONENT OF WILSON V. SEITER ONTO THE

PURELY OBJECTIVE STANDARD OF HARLOW

V. FITZGERALD, THEREBY DENYING

QUALIFIED IMMUNITY AND CREATING A

SEPARATE OFFENSIVE THEORY OF LIABILITY

IN DIRECT CONTRAVENTION OF RULINGS OF

TED GHRAIB. becca vaccvecceneseeksubeeenac anes

THE FOURTH CIRCUIT COURT OF APPEALS

ERRED BY APPLYING THE REPUDIATED

"LEAST RESTRICTIVE ALTERNATIVE" TEST,

RATHER THAN THE FOUR-PRONG ANALYSIS

REQUIRED BY TURNER v. SAFLEY, THEREBY

DENYING QUALIFIED IMMUNITY IN A CLAIM

ARISING FROM DENIAL OF OUT-OF-CELL

EXERCISE PRIVILEGES TO A VIOLENTLY AS-

SAULTIVE INMATE WHEN LESSER MEASURES

HAD BEEN REPEATEDLY ATTEMPTED AND

COBGREDEMEUELSS TOAILABD 2... ceccccsccccecscoces

von an

Il. THE FOURTH CIRCUIT COURT OF APPEALS

ERRED BY FAILING TO APPLY THE PAR-

TICULARIZED STANDARD OF REVIEW FOR A

QUALIFIED IMMUNITY DEFENSE REQUIRED

BY ANDERSON v. CREIGHTON. .................045. 14

TM RcR ches Gh45 866006 s500605506005066000% 21

iv

TABLE OF AUTHORITIES

Anderson v. Creighton, 483 U.S. 635 (1987) ....... 14,17,19

Bell v. Wolfish, 441 U.S. 520 (1979) ...........-. 17

Block v. Rutherford, 468 U.S. 576 (1984) ......... 17

Clay v. Miller, 626 F.2d 345 (4th Cir. 1980) ....... 15,18

Davenport v. DeRobertis, 653 F. Supp. 649

(N.D. Ill. 1987), modified and affirmed.

oe Bk Te fe | re 19,20

Davis v. Scherer, 468 U.S. 183 (1984) ............ 14,17

Harlow vy. Fitzgerald, 457 U.S. 800 (1982) ........ 9,10,11

Hunter vy. Bryant, 502 U.S. .

tye Gee 2), ere PEP TUTE ET TTT eT 18,19

Jones v. North Carolina Prisoners’

Me A ys ra 17

Kirby v. Blackledge, 530 F.2d 583

SE acc oda tieges abc's sd eeas a00%s 15,18

Malley v. Briggs, 475 U.S. 335 (1986) ........... 18

McKinney v. Anderson, 959 F.2d 853

Ee eee ewes nad Ewe oxen d den 11

Mitchell v. Forsyth, 472 U.S. 511 (1985) .......... 9, 10,20

Mitchell v. Martin, 836 F.2d 546

ee eee shauna eas 2

Mitchell v. Martin, 867 F.2d 609

ee ay oak bw Wea we 2

Mitchell v. Martin, No. 86-235-CRT

(E.D.N.C. July 20, 1987 and August 12, 1987) ..... 2

Mitchell v. Rice, 954 F.2d $87

RRP ear a 2,9, 12, 14,19

Mitchell v. Rice, No. 86-235-CRT

(E.D.N.C. Feb. 1, 1990)unpublished) ............ 2

Peli v. Procunier, 417 U.S. 817 (1974) ........... 17

Procunier v. Martinez, 416 U.S. 396 (1974) ....... 17

Rhodes v. Chapman, 452 U.S. 337 (1981) ......... 16,18

Siegert v. Gilley, ___ U.S. ___, 111 S. Ct.

| rn en ee ree eer 11

Spain v. Procunier, 600 F.2d 189

Oe A ere ctor 20

Sweet v. South Carolina Dept. of Corrections,

529 F.2d 854 (4th Cir. 1975) .......-- eee eee eee 15,18

Turner v. Safley, 482 U.S. 78 (1987) ......-----+: 10, 12,13,14, 17

United States v. Fountain, 768 F.2d 790

(2) Pee eee eo 20

Wallace v. King, 626 F.2d 1157

(4th Cir. 1980), cert. denied,

Pye) & ol. | | er er 18

Whitley v. Albers, 475 U.S. 312 (1986) ........--. 17

Wilson v. Seiter, 501 U.S. __,

the Boe fi, | ere re eee 9,10,11,13

STATUTES AND CONSTITUTIONS

Eighth Amendment, U.S. Constitution ..........- 3

y Bip Som oy. |) err rere Se reer er 2

Fo Rik (om f. . Serre rery ye rer tn. 3

MISCELLANEOUS

N.C. Admin. Code tit. 5, r. 2C .0300(d)(1) ......-. 5

N.C. Admin. Code tit. 5, r. 2C .0303 ef Seg. ....--- 3

N.C. Admin. Code tit. 5, r. 2C .0401 (Dec. 1984) ...4

Te a ne

No.

a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

NATHAN A. RICE, BOBBY R. WATSON and

BOB SEYMOUR,

Petitioners,

v.

JAMES CALVIN MITCHELL,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners, officials of the North Carolina Department of

Correction, pray that this Court issue its Writ of Certiorari to

review the judgment of the United States Court of Appeals for

the Fourth Circuit, decided January 10, 1992, which affirmed the

district court’s denial of qualified immunity.

OPINIONS BELOW

The order of the Court of Appeals for the Fourth Circuit

denying the petition for rehearing and suggestion for rehearing

__ in banc in this case may be found in the appendix (App.) to this

petition at App. A127.

The opinion of the Court of Appeals for the Fourth Circuit

in this matter, affirming the district court’s denial of qualified

‘immunity, is reported at Mitchell v. Rice, 954 F.2d 187 (4th Cir.

1992), and may be found in the appendix at App. A113.

The opinion of the district court denying qualified im-

munity, Mitchell v. Rice, No. 86-235-CRT (E.D. N.C. Feb. 1,

1990) (unpublished), may be found in the appendix at App. A109.

A prior opinion of the Court of Appeals for the Fourth

Circuit in this matter, Mitchell v. Martin, 867 F.2d 609 (4th Cir.

1989) [Table], which vacated the district court’s entry of sum-

mary judgment for petitioners, may be found in the appendix at

App. A34.

The initial opinion of the Court of Appeals for the Fourth

Circuit in this matter, Mitchell v. Martin, 836 F.2d 546 (4th Cir.

1987) [Table], may be found in the appendix at App. A28.

The magistrate judge’s memorandum and recommenda-

tion, which granted summary judgment to the petitioners, and the

district court’s adoption of that memorandum and recommenda-

tion, Mitchell v. Martin, No. 86-235-CRT (E.D.N.C. July 20,

1987 and August 12, 1987) (unpublished), may be found in the

appendix at App. A19.

STATEMENT OF JURISDICTION

The decision of the Fourth Circuit Court of Appeals

denying the petitioners’ petition for rehearing and suggestion for

rehearing en banc was filed on February 28, 1992. (App. A127).

The time for filing this petition, which was originally due ninety

days after February 28, 1992, or on May 28, 1992, was extended

by order of Chief Justice Rehnquist, to and including June 27,

1992. (App. A129). Jurisdiction of the Court is, thus, invoked

pursuant to 28 U.S.C. § 1254(1). ‘

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitu-

tion: "Excessive bail shall not be required, nor exces-

sive fines imposed, nor cruel and unusual punishments

inflicted."

42 U.S.C. § 1983:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thegeof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress.

N.C. Admin. Code tit. 5, r. 2C 0303 et seq.:'

The original and amended versions of these regula-

tions may be found in the appendix at App. A130, A145.

Because this regulation was amended between respondent's

first and second restricted exercise periods, both versions are

included.

4

STATEMENT OF THE CASE

The undisputed facts of this case, as found by the Fourth

Circuit Court of Appeals, are as follows:

In December 1973, respondent James Calvin Mitchell

(hereinafter "Mitchell") began serving a thirty-year sentence for

second degree murder and a consecutive five to ten-year sentence

for armed robbery. (App. Al). During this incarceration,

Mitchell was convicted of further crimes. On April 23, 1975,

Mitchell was convicted of assault with a deadly weapon with

intent to kill resulting in serious injury, for which he received a

three-year concurrent sentence. (App. Al). On November 10,

1975, Mitchell was convicted of attempted escape from prison,

for which he received a four-month concurrent sentence. (App.

Al). On October 14, 1980, Mitchell was convicted of assault

with a deadly weapon inflicting serious injury, for which he

received a twelve-month concurrent sentence. (App. Al). On

July 11, 1983, Mitchell assaulted two inmates in a dayroom, for

which he was later convicted on two counts of assault with a

deadly weapon with intent to kill inflicting serious injury. He

received consecutive sentences of ten and twenty years for these

convictions. (App. A2). From 1973 to 1986, Mitchell incurred

over seventy-six prison rule infractions, many of which were

assaultive in nature. (App. A2).

At the time of Mitchell’s July 11, 1983 assaults, he was

in the most restrictive custody level in the North Carolina prison

system -- maximum custody, assigned to intensive management

at Central Prison. (App. A2-A3). Intensive management (later

renamed "maximum custody") is used to isolate inmates who

“pose an imminent threat to the life or health of other inmates or

the staff....". N.C. Amin. Code tit. 5, r. 2C .0401 (Dec. 1984).

(App. A3, A37). These same prison regulations provide that

inmates who are assigned to intensive management may be

further restricted as to their outside cell activities “[iJn any

instance where an inmate has seriously assaulted or threatened to

assault staff or other inmates if allowed outside the cell...."_ 1. 2C

.0300(d)1. (App. A38, A134, A148). Further restrictions

authorized, if the initial restrictions fail to resolve an inmate's

threatening and dangerous behavior, include outside cell ac-

tivities only while restrained in hand and leg cuffs and, finally,

total restriction on out-of-cell activities except for showers.

(App. A38, A134-A135, A148-A149). If total out-of-cell restric-

tions are imposed, notice anc a hearing are provided. Id.

As a result of Mitchell’s July 11, 1983 assaults, Mitchell

was placed in full restraints (hand and leg cuffs) any time he was

outside his cell. Despite these further restrictions, Mitchell’s

assaultive behavior continued unabated. On July 24, 1983, while

exercising in full restraints in the dayroom of the maximum

custody cellblock, Mitchell attempted to break the window of the

Control Station with a broom handle. (App. A3). This behavior

led Bobby R. Watson, Associate Warden for Operations at Central

Prison (hereinafter "Watson") to recommend that Mitchell be

restricted to his cell except for showers in full restraints. (App.

A3). After notice and a hearing, these restrictions were approved

by the Director’s Subcommittee on July 28, 1983, with review

scheduled and given every thirty days. (App. A3, A39). Pursuant

to standard operating procedures, Mitchell was provided an

exercise manual demonstrating in-cell exercises.

Seven months later, on February 29, 1984, Mitchell’s

out-of-cell exercise privilege was restored, but Mitchell, still

consideréd quite dangerous, was placed in full restraints when-

ever he was out of his cell. (App. A3).

One year later, on February 26, 1985, Mitchell resumed

his assaultive behavior by again attempting to break the window

in the Control Station with a mop wringer, after refusing to return

to his cell. (App. A4). The out-of-cell exercise restrictions were

again imposed by the Director’s Classification Committee

(formerly the Director’s Subcommittee) on April 3, 1985. (App.

A4).

Eleven months later, on March 14, 1986, the out-of-cell

exercise restrictions were lifted and Mitchell was transferred to

Caledonia Correctional Institution. (App. A4).

During the two periods of out-of-cell exercise restrictions

Mitchell did not file any grievances complaining about his health

or medical problems and his medical records do not reveal any

injuries attributable to his restrictions. (App. A39-A40).

Mitchell filed this civil action pro se on March 3, 1986,

in the United States District Court for the Eastern District of

North Carolina, Raleigh Division, against Govemmor James Mar-

tin (hereinafter "Governor Martin"); Nathan Rice (hereinafter

“Warden Rice"), who was at that time the Warden of Central

Prison in Raleigh, North Carolina; Bobby Seymour (hereinafter

"Seymour"), who was a Program Director for Classification at

Central Prison; and Bobby R. Watson (collectively "defendants").

On July 28, 1986, the defendants filed motions to dismiss and for

summary judgment, supported by a brief and affidavits. On July

20, 1987, the Honorable Charles K. McCotter, Jr., United States

Magistrate Judge, recommended summary judgment be granted

defendants. (App. A19). The magistrate judge’s recommenda-

tion was adopted by the Honorable W. Earl Britt, United States

District Judge, on August 12, 1987. (App. A26). Mitchell timely

appealed.

On December 17, 1987, the Fourth Circuit Court of

Appeals affirmed the judgment of the district court in all respects,

with the exception of Mitchell’s claim that the restrictions the

defendants had placed on his out-of-cell exercise privileges vio-

lated his Eighth Amendment rights. (App. A28).

Defendants moved for an extension of time to petition for

rehearing, which was granted. (App. A32(a)). On January 13,

1988, defendants filed a petition for rehearing, which was granted

on February 29, 1988, and thereafter appellate counsel was

appointed for Mitchell. (App. A33).

On January 12, 1989, the Fourth Circuit Court of Appeals

vacated the entry of summary judgment on Mitchell’s claim of

denial of out-of-cell exercise privileges and remanded the case to

the district court "for the development of additional facts on this

issue, particularly whether the plaintiff offered any proof of

injury...." (App. A34, A36).

On January 23, 1989, Warden Rice, Seymour and Watson

filed an answer, specifically asserting the defense of qualified

immunity.” The defendants filed a renewed motion for summary

judgment, supported by a brief and extensive affidavits concern-

ing documentation of the restrictions on Mitchell’s out-of-cell

exercise privileges and his medical records, specifically raising

their defense of qualified immunity.

On August 9, 1989, the district court denied without

prejudice defendants’ renewed motion for summary judgment,

without addressing their defense of qualified immunity. (APP.

A104, A106).

2 Governor Martin was dismissed from this action by the district

court and that dismissal was affirmed by the Fourth Circuit Court

of Appeals on the first appeal. (App. A32).

On December 12, 1989, Mitchell moved to amend his

complaint in order to name the remaining defendants in their

individual as well as official capacities. Mitchell also sought to

add additional defendants and further relief.

On February 1, 1990, the district court filed an order

denying qualified immunity and allowing Mitchell to amend his

complaint. (App. A109). On February 12, 1990, the defendants

filed notice of appeal based on the district court’s denial of

qualified immunity. (App. A112).

On January 10, 1992, the Fourth Circuit Court of Appeals

entered an opinion affirming the district court’s denial of

qualified immunity. (App. A113). The defendants timely peti-

tioned for rehearing with suggestion for rehearing en banc. On

February 28, 1992, the Fourth Circuit Court of Appeals entered

an order denying defendants’ petition for rehearing. (App.

A127).

The defendants thereafter moved for an extension of time

to petition for a writ of certiorari, which was granted on May 12,

1992. (App. A129).

REASONS FOR GRANTING THE WRIT

I THE FOURTH CIRCUIT COURT OF APPEALS

ERRED BY GRAFTING THE SUBJECTIVE COM-

PONENT OF WILSON V. SEITER ONTO THE

PURELY OBJECTIVE STANDARD OF HARLOW V.

FITZGERALD, THEREBY DENYING QUALIFIED

MMUNITY AND CREATING A SEPARATE OF-

PENSIVE THEORY OF LIABILITY IN DIRECT

@ ONTRAVENTION OF RULINGS OF THIS

—

“he Fourth Circuit Court of Appeals denied qualified

wmmmunety to the defendant prison officials, holding that inquiry

into the constitutionality of their actions in the case at bar "would

be better accomplished by a trial judge after a full hearing on the

acts.” Mitchell v. Rice, 954 F.2d at 193. The Court of Appeals

then cited to this Court’s most recent Eighth Amendment

decision, Wilson v. Seiter,501 U.S.__, 111 S. Ct. 2321 (1991),

for the proposition that this hearing would require inquiry into ~

the prison officials’ state of mind when they imposed the exercise

restrictions on Mitchell. 954 F.2d at 193 n.6. By taking this

approach, the Fourth Circuit Court of Appeals has grafted the

subjective component of Wilson v. Seiter onto the purely objec-

tive standard of Harlow v. Fitzgerald, 457 U.S. 800 (1982),

thereby repudiating Harlow’s elimination of a subjective intent

component as a separate inquiry in a qualified immunity defense.

In Mitchell v. Forsyth, 472 U.S. 511 (1985), this Court

clearly stated that, when resolving a defense of qualified im-

munity, a trial court "need not consider the correctness of the

plaintiff’s version of the facts, nor even determine whether the

plaintiff’s allegations actually state a claim," as the question of

immunity "is separate from the merits of the underlying action."

472 U.S. at 528. The threshold question for the trial court, thus,

10

is pot whether the plaintiff’s constitutional rights may have been

violated, but rather, what was the clearly established law at the

time of the defendants’ actions and was that law sufficiently

particularized to have given the defendants notice that their

actions may violate the plaintiff’s constitutional rights.

This Court specifically noted in Harlow v. Fitzgerald,

457 U.S. 800 (1982), that the objective reasonableness standard

of review was established because "questions of subjective intent

so rarely can be decided on summary judgment" and the defense

of qualified immunity shields public officials from "wide-ranging

discovery" and trial, not merely liability. 457 U.S. at 816-18.

Accord Mitchell v. Forsyth, 472 U.S. at 526-27. Thus, even an

allegation of malice will not suffice to negate the defense of

qualified immunity. Harlow, 457 U.S. at 817-18.

If the Fourth Circuit Court of Appeals is correct in saying

that this case should go to trial on the merits, then the question

of the defendant prison officials’ subjective intent would be

relevant conceming the issue of deliberate indifference. Wilson

v. Seiter, 501 U.S. at__, 111 S. Ct. at 2324-25. The defendants

contend, however, that this would be purely an additional theory

of defense, not -- as the Fourth Circuit Court of Appeals would

have it -- an alternate and independent theory of liability. When

a court is determining the threshold question of qualified im-

munity, there is no subjective element -- the issue is purely a legal

one. The defendants perceive the subjective element of Wilson

v. Seiter to be a matter purely of defense, not an alternative theory

for prisoners to utilize to bypass Harlow v. Fitzgerald and

Turner v. Safley, 482 U.S. 78 (1987), to get to a jury. Under

Seiter, only if an actual constitutional violation is established

does the focus shift to the subjective intent of the defendants.

Even assuming such violation, if the defendants are not shown to

have been deliberately indifferent -- failing to take reasonable

11

ameliorating actions readily available to them, for example --

then plaintiff’s claim nonetheless fails.

The effect of the Fourth Circuit Court of Appeals’ use of

the Seiter subjective element is to re-establish a separate theory

of potential liability which a plaintiff can plead affirmatively and

which will in effect eliminate qualified immunity. The Ninth

Circuit Court of Appeals has recently recognized that the subjec-

tive element of Seiter is an additional barrier to a prisoner’s

Eighth Amendment claim. McKinney v. Anderson, 959 F.2d 853

(9th Cir. 1992). This conflict in application of Seiter, and espe-

cially the Fourth Circuit’s application of its disastrous version to

a defense of qualified immunity, will continue until this Court

makes clear the substantive and procedural posture of the subjec-

tive element. Is the subjective element only a shield for defen-

dants or, as employed by the Fourth Circuit i in the case at bar, is

it a separate sword to be wielded by plaintiffs?” The Court should

allow this petition to address this important constitutional issue.

3 See, i.e., Justice Kennedy’s analysis of “the tension between

the rationale of Harlow" and a claim containing intent as an

element. Siegert v. Gilley, _ U.S. ____, 111 S. Ct. 1789, 1795

(1991).

12

Il. THE FOURTH CIRCUIT COURT OF APPEALS

ERRED BY APPLYING THE REPUDIATED "LEAST

RESTRICTIVE ALTERNATIVE" TEST, RATHER

THAN THE FOUR-PRONG ANALYSIS REQUIRED

BY TURNER v. SAFLEY, THEREBY DENYING

QUALIFIED IMMUNITY IN A CLAIM ARISING

FROM DENIAL OF OUT-OF-CELL EXERCISE

PRIVILEGES TO A VIOLENTLY ASSAULTIVE IN-

MATE WHEN LESSER MEASURES HAD BEEN

REPEATEDLY ATTEMPTED AND CONSISTENTLY

FAILED.

The holding of the Fourth Circuit Court of Appeals forces

prison officials to act at their peril when they restrict an inmate’s

out-of-cell exercise privileges, pursuant to prison regulations,

even if the inmate is violently assaultive and continuously un-

manageable. Moreover, the decision precludes qualified im-

munity as a defense, even in the absence of any injury to the

inmate.

The court reached this holding by applying a "least

restrictive altemative" analysis, in direct contradiction to this

Court’s majority ruling in Turner v. Safley, 482 U.S. 78 (1987),

and relying instead on Justice Stevens’ dissenting opinion. See,

i.c., Mitchell v. Rice, 954 F.2d at 193 andn. 5 ("Adetailed review

of the feasibility of alternatives in this case, such as solitary

out-of-cell exercise periods, or the adequacy of in-cell exercise

would need to precede a grant of qualified immunity in a case

such as this."). A review of the record reveals that graduated,

measured alternatives, including solitary out-of-cell exercise

periods, were attempted by the prison officials in this case prior

to the imposition of the prohibition of all Mitchell’s out-of-cell

exercise. (App. A2-A4). These alternatives consistently failed

13

to curb Mitchell’s assaultive behavior, necessitating the final

measure of a prohibition on all out-of-cell exercise.

Not only did the Fourth Circuit Court of Appeals er-

roneously reject the four-prong Turner analysis, but com-

pounded the error by placing the burden on defendants to show

the absence of reasonable, less restrictive alternatives. This

shifting of the burden clearly violates this Court’s holding in

Turner. Prison officials "do not have to set up and then shoot

down every conceivable alternative method of accommodating

the claimant’s constitutional complaint." 428 U.S. at 90-91.

Defendants further assert that Turner v. Safley and

Wilson v. Seiter are readily interconnected. If prison officials

apply in a rational fashion the four-prong Turner analysis to their

discretionary decisions regarding internal security, only in rare

instances could they be held to have acted with deliberate indif-

ference to conditions which might violate the Constitution. This

process of conscious application of the four prongs all but

eliminates deliberate indifference. Moreover, when prison offi-

cials must exercise their discretion, courts are directed to defer to

that discretion in the absence of totally unreasonable acts. Thus,

when prison officials exercise their discretion within objectively

reasonable bounds, as did the defendants in the case at bar, they

must be granted qualified immunity.

Defendants contend that a proper application of the four-

prong standard of review established by this Court in Turner

4 The four prongs are: (1) whether there exists a logical

connection between the regulation and the legitimate

governmental interest upon which it is based, (2) whether there

are alternative means of exercising the right the regulation

14

v. Safley, areview the defendants presented but the Fourth Circuit

Court of Appeals refused to apply, results in a grant of qualified

immunity to them.

Hl. THE FOURTH CIRCUIT COURT OF APPEALS

ERRED BY FAILING TO APPLY THE PAR-

TICULARIZED STANDARD OF REVIEW FOR A

QUALIFIED IMMUNITY DEFENSE REQUIRED

BY ANDERSON v. CREIGHTON.

In Anderson v. Creighton, 483 U.S. 635 (1987), this

Court held that the general rule of qualified immunity is to

provide government officials with the ability "reasonably [to]

anticipate when their conduct may give rise io liability for

damages." 483 U.S. at 639, citing to Davis v. Scherer, 468 U.S.

183, 195 (1984). Thus, the standard of review a court must

apply when determining whether the law was clearly established

is a "particularized" determination, i.¢., whether the "contours of

the right [are so] sufficiently clear that a reasonable official would

understand that what he is doing violates that right." Anderson,

483 U.S. at 640. "[I]n the light of pre-existing law the unlawful-

ness must be apparent." Id.

The Fourth Circuit Court of Appeals specifically noted in

its opinion that it had "never held that denial of out-of-cell

exercise opportunities is per se unconstitutional cruel and unusual

punishment." Mitchell v. Rice, 954 F.2d at 191. In fact, the court

+

(Footnote continued)

restricts or prohibits, (3) the impact ‘eccommedetion of the

asserted constitutional right will have on staff and other inmates,

= Ang other alternatives to the restrictions imposed. 482 U.S. at

eerie

15

held the following to be the "clearly established" law in their

opinion:

[P]recedent from this and other circuits clearly

establish that depriving inmates of all meaningful

opportunities to exercise generally violates the

Eighth Amendment prohibitions against cruel and

unusual punishment. Exceptions may be made

under exigent circumstances that necessitate con-

striction of these rights.

954 F.2d at 193.

The precedent in the Fourth Circuit upon which the court

relied includes Clay v. Miller, 626 F.2d 345 (4th Cir. 1980), Kirby

v. Blackledge, 530 F.2d 583 (4th Cir. 1976), and Sweet v. South

Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir. 1975).

None of these cases sets forth any clear rule of law upon which

a prison official could base a discretionary decision. Clay v.

Miller stated that "courts must look at the totality of the cir-

cumstances, including the extent to which the restrictions ad-

versely affect the mental or physical health of the inmate...." 626

F.2d at 347, Kirby v. Blackledge held that the totality of condi-

tions may constitute an Eighth Amendment violation and, in

dicta, held that inadequate exercise could reach the level of cruel

and unusual punishment, but remanded to the district court for a

determination of whether "the combination of conditions and

circumstances alleged really amounted to cruel and unusual

punishment..." 530 F.2d at 587. Sweet v. South Carolina Dept.

of Corrections held that "indefinite limitation on exercise may

be harmful to a prisoner’s health, and, if so, would amowrit to

‘cruel and unusual’ punishment...."_ 529 F.2d at 566 (emphasis

added).

Thus, the Fourth Circuit precedent upon which the prison

officials in this case had to rely instructed that it was a totality of

16

circumstances test which controlled and that actual injury was the

single factor which could -- alone -- signal a constitutional

violation. The facts adopted in the case at bar by the Fourth

Circuit Court of Appeals revealed that Mitchell suffered no actual

injury and that his only complaint was lack of out-of-cell exer-

cise. Further, he did not complain of the totality of his conditions

of confinement, nor does the record reflect that Mitchell ever

submitted a grievance or any other formal or informal complaint

about the effect of the lack of out-of-cell exercise, and his medical

records reflect no injury or illness attributable to the exercise

restrictions. Accordingly, Fourth Circuit precedent could not

have placed the prison officials on notice that they might be

violating Mitchell’s constitutional rights.

The only case from this Court which gave any direction

to the prison officials is Rhodes v. Chapman, 452 U.S. 337

(1981). Rhodes also employed a totality of circumstances

standard, holding that only conditions which "resulted in unques-

tioned and serious deprivations of basic human needs" would

constitute an Eighth Amendment violation. 452 U.S. at 347.

Rhodes went on to hold, however, that conditions could be

"restrictive and even harsh." Id.

This Court has repeatedly noted in its prison cases that

the issue of internal security is one best left to the informed

discretion of prison officials.

[JJudgments regarding prison security "are

peculiarly within the province and professional

expertise of corrections officials, and, in the ab-

sence of substantial evidence in the record to

indicate that the officials have exaggerated their

response to these considerations, courts should

ordinarily defer to their expert judgment in such

matters."

in naman ieaieeaieieane es E

17

Turner v. Safley, 482 U.S. at 86, citing to Pell v. Procunier,

417 U.S. 817, 827 (1974). Accord Procunier v. Martinez,

416 U.S. 396 (1974); Jones v. North Carolina Prisoners’

Union, 433 U.S. 119 (1977); Bell v. Wolfish, 441 U.S. 520

(1979), Rhodes v. Chapman, supra; Block v. Rutherford, 468

U.S. 576 (1984); Whitley v. Albers, 475 U.S. 312 (1986).

Based on the established law of this Court and the Fourth

Circuit when Mitchell’s out-of-cell exercise was prohibited, it

is clear that the "particularized" guidance required by Anderson

v. Creighton was not available to the defendants in reaching their

decision to impose the exercise restrictions. The relevant case

law established that an Eighth Amendment violation occurred

only if the conditions caused injury or resulted in a denial of a

basic human need. Mitchell was neither injured nor so denied.

The defendants were charged with the formidable task of

striking a balance between the safety and security of the prison

staff and other inmates and the welfare of Mitchell, in the face of

no particularized legal precedent. The defendants attempted a

measured approach to the problem, but lesser measures were not

effective. When persuasion and reward proved miserably inef-

fective, the unpleasant but necessary recourse of pure restraint

was employed and proved effective.

5 For purposes of determining whether a constitutional right was

Clearly established, the court may look to the law of the relevant

circuit at the time of the conduct in question, Davis v. Scherer,

468 U.S. 183, 191-92 (1984), and this Court.

18

Prison officials are not required to anticipate changes in

the law. Wallace v. King, 626 F.2d 1157 (4th Cir. 1980), cert.

denied, 457 U.S. 969 (1981). In light of the Fourth Circuit Court

of Appeals’ holdings in Sweet, Kirby and Clay , and this Court’s

holding in Rhodes, it was reasonable for the defendant prison

officials to believe that they were not violating Mitchell’s Eight

Amendment rights by prohibiting out-of-cell exercise so long as

he did not suffer any actual injury and the totality of his conditions

of confinement were not substandard. That was how the district

court initially interpreted the case law when it granted summary

judgment to the defendants. (App. A23). That is why the

defendants should have been granted qualified immunity.

This Court has stated that qualified immunity protects "all

but the plainly incompetent or those who knowingly violate the

law." Malley v. Briggs, 475 U.S. 335, 343 (1986). The defendant

prison officials in the case at bar can be accused of neither in light

of the acknowledged facts. As recently noted in Hunter v.

Bryant, 502 US.__, __, 112 S. Ct. 534, 537 (1991), "[tJhis

accommodation for reasonable error exists because ‘officials

should not err always on the side of caution’ because they fear

being sued." The defendant prison officials in a maximum

custody prison, faced with a discretionary decision regarding

security, armed with regulations which provided an effective

solution, especially in light of no particularized, clearly estab-

lished law, should not hesitate to act in the fear that some court

6 How can these defendant prison officials be held to know that

their conduct may have violated clearly established law when a

federal judge a magistrate judge have found their actions in

this case constitutional? (App. Al9, A26-A27).

may, years after the fact, fashion “another reasonable, or more

reasonable" solution. Id.

If reasonable prison officials could differ as to the

decision, qualified immunity should be granted. The Fourth

Circuit Court of Appeals noted its own inadequacy to address the

factual situation presented to them in the case at bar. "We are not

penologists ... [and] cannot properly judge the necessity or

adequacy of appellants’ actions." Mitchell v. Rice, 954 F.2d at

193. Mitchell himself presented no testimony, expert or other-

wise, that a less restrictive means was available, much less that

restricting his exercise privilege was unreasonable. The Fourth

Circuit Court of Appeals has elevated out-of-cell exercise to the

level of a discrete constitutional right equal in majesty to the

prohibition against corporal punishment. Even if the court were

correct, surely it is a right that can be waived by conduct inimical

to -- indeed, contemptuous of -- the exercise of that right.

Mitchell’s unrelenting assaultiveness in the face of graduated

levels of restrictions clearly constitutes such a waiver. Surely

these prison officials should not be subjected to the burden of a

jury trial and potential liability when they decide to forbid totally

out-of-cell exercise privileges to a prisoner who poses a constant

danger of assault. Are prison officials constitutionally required

to expose themselves to assault by a prisoner in order not to

violate the prisoner’s supposed constitutional right to exercise

outside his cell? The Fourth Circuit Court of Appeals incorrectly

applied the Anderson particularized standard of review in

denying the defendant prison officials qualified immunity.

The Fourth Circuit Court of Appeals’ decision in this case

is also in direct conflict with a quite similar case in the Seventh

Circuit, in which qualified immunity was granted. In Davenport

v. DeRobertis, 653 F. Supp. 649 (N.D. Ill. 1987), modified and

affirmed, 844 F.2d 1310 (7th Cir. 1988), the Seventh Circuit

Court of Appeals granted qualified immunity to prison officials

who allowed long term segregated inmates only one hour of

out-of-cell exercise per week. The Davenport district court,

further recognizing the occasional need for total denial of out-of-

cell exercise to maintain security, held that total restriction was

not objectionable “if a segregated inmate violates prison rules

during his exercise or shower period...." 653 F. Supp. at 664. The

Seventh Circuit Court of Appeals specifically approved this total

restriction, noting that "[t]he exception for fractious inmates

protects the defendants’ legitimate interest in security, well

illustrated by United States v. Fountain, 768 F.2d 790 (7th Cir.

1985); it is unfortunate but unavoidable that the exception may

itself engender litigation...." 844 F.2d at 1315.’

In the case at bar, Mitchell did violate prison rules -- by

attempting to break a control station window to assault a guard

-- while he was exercising by himself in the dayroom in full

restraints. Mitchell, then, is that fractious inmate who engenders

litigation. It would be impossible for any court to fashion a rule

of law as to just what type of behavior is required to meet the

"fractious inmate" standard. Prison officials must be able to

employ their professional judgment in determining whether an

inmate has reached that level.

Qualified immunity is a legal question. Mitchell v.

Forsyth, 472 U.S. 511 (1985). The record in the case at bar

is sufficient, factually, to determine the legal correctness of

the defendant prison officials’ actions. Under very similar

7 Even the Ninth Circuit Court of Appeals, in Spain v. Procunier,

600 F.2d 189, 199 (9th Cir. 1979), noted the possible need for a

total deprivation of out-of-cell exercise when "disciplinary needs"

required that decision.

21

circumstances, the Seventh Circuit Court of Appeals held that

qualified immunity applied. It should apply here as well. The

defendant prison officials urge this Court to grant their petition,

review the record, and determine for itself that their actions entitle

them to qualified immunity.

CONCLUSION

For the reasons stated, the petitioners believe that the

decision of the Fourth Circuit Court of Appeals is in conflict with

decisions of this Court and the Seventh Circuit Court of Appeals.

Therefore, the Court should issue the writ in order to settle the

conflicts and correct the decision below.

»

Respectfully submitted this the AS” day of June, 1992.

LACY H. THORNBURG

Attorney General

James Peeler Smith

Special Deputy Attorney General

*Sylvia Hargett Thibaut

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 733-7188

Attomeys for Petitioners

*Counsel of Record

APPENDIX

A-i

APPENDIX

TABLE OF CONTENTS

Affidavit of Nathan Rice, filed February 19, Page

1987, in support of petitioners’ original motion

SOF GUMNGRETY POGGTAGTE once ccccccccccsessccscncecesss Al

Magistrate Judge’s Memorandum and

Recommendation, filed July 20, 1987,

recommending summary judgment for

SONNY o vccccccseresdccetekinesesses tanks asses Al9

Order of district court, filed August 12, 1987,

adopting Magistrate Judge’s recommendation

for summary judgment for petitioners ...............+. A26

Judgment from district court, filed August 12,

1987, allowing petitioners’ motion for summary

judgment and dismissing case ...............0eeeeeeee A27

Unpublished opinion of Court of Appeals for the

Fourth Circuit, decided December 17, 1987,

affirming the district court’s granting of

summary judgment for petitioners, except for

the denial of out-of-cell exercise claim, and

remanding to the district Court ............cceeeeeeeees A28

Order of the Court of Appeals for the Fourth

Circuit, filed January 19, 1988, extending the

time within which petitioners may file a petition

SOP CORAM 6 cscs cctcevvchinatasereaneeedeseeaes as A32(a)

Order of the Court of Appeals for the Fourth

Circuit, filed February 29, 1988, granting

petitioners’ petition for rehearing ...............eeee005 A33

A-ii

Unpublished opinion of Court of Appeals for the

Fourth Circuit, decided January 12, 1989,

reversing the district court’s granting of

summary judgment on respondent’s denial of

ROVER EGh SGA cabacccascevesscccescccece A34

Supplemental affidavit of Bobby R. Watson,

filed April 28, 1989, in support of petitioners’

renewed motion for summary GC Ukwce bases’ eee A37

Order of district court, filed August 9, 1989,

denying without prejudice petitioners’ renewed

motion for summary judgment until after

ES A104

Order of district court, filed November 28,

1989, directing respondent to respond to

petitioners’ motion to reconsider their renewed

motion for summary judgment ........................ A108

Order of district court, filed February 1, 1990,

denying petitioners’ defense of qualified

ST UMMUN MRE UA Senne S4Ssy0cveeececccccecces A109

Notice of Appeal, filed February 12, 1990,

appealing the denial of qualified immunity .............. All12

Published opinion of the Court of Appeals for

the Fourth Circuit, decided January 10, 1992,

denying petitioners’ defense of qualified

SEMEN UNOS ENG SAU 4 G4 vesso40crseccccccasccces A113

Order of the Court of Appeals for the Fourth

Circuit, filed February 28, 1992, denying

petitioners’ petition for rehearing with

suggestion for rehearing in banc ....................... A127

Order of the Supreme Court, entered May 12,

1992, extending the time within which

petitioners may file their petition for writ of

CUNT 6 bn Se ceWENs Kedeede dscns cssceces.

Regulations of the NCDOC governing

conditions of confinement for segregated

inmates codified as N.C. Admin. Code tit. 5, r.

2C .0303, et seq., effective February 6,

BPE SaebESeARde Ros onbedercceranecvseseccees

Regulations of the NCDOC governing

conditions of confinement for segregated

inmates, codified as N.C. Admin. Code tit. 5, r.

2C .0303, et seq., effective December 1,

FT eve ecnkctaceebubectuaneh ia by e¥ss 065%

Al

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

CIVIL NO. 86-235-CRT

FILED

Feb 19 1987

JAMES CALVIN MITCHELL,

Plaintiff

Vv.

AFFIDAVIT

GOVERNOR JAMES G. MARTIN,

et al.,

Defendants.

i i a ee a

I, NATHAN RICE, being first duly sworn, do hereby

depose and say:

I am employed by the North Carolina Department of

Correction, Division of Prisons, as Warden of Central Prison in

Raleigh, North Carolina.

Inmate James Calvin Mitchell was admitted to the North

Carolina Prison System on December 18, 1973 to serve a 30-year

sentence for Second Degree Murder and a 5 to 10 year consecu-

tive sentence for Armed Robbery. On April 23, 1975, he was

convicted of Assault With A Deadly Weapon with Intent to Kill

Resulting in Serious Injury for which he received a 3 year

concurrent sentence. On November 10, 1975, he was convicted

of Attempted Escape From Prison for which he received a 4

month concurrent sentence. On October 14, 1980, he was con-

victed of Assault with a Deadly Weapon Inflicting Serious Injury

and received a 12-month concurrent sentence.

On July 11, 1983, while incarcerated at Central Prison,

Inmate Mitchell assaulted two inmates, Harold Waddell, and

Vernon Talbert in the dayroom. On September 20, 1984, he was

convicted in Wake County Superior Court for these assaults. In

Case No. 83-CRT-49597, he was convicted of Assault With a

Deadly Weapon With Intent to Kill Inflicting Serious Injury. For

this conviction, he was sentenced to 20 years in the custody of

the Department of Correction with the sentence to begin at the

expiration of all sentences. In Case No. 83-CRS-49596, he was

convicted of Assault With A Deadly Weapon With Intent To Kill

Inflicting Serious Injury. For this conviction, he received a

sentence of 10 years in the custody of the Department of Correc-

tion with the sentence to begin at the expiration of all sentences

which he was obligated to serve, and specifically, at the expiration

of sentence imposed in Case No. 83-CRS-49597.

Inmate Mitchell has incurred 76 infractions of prison

rules since his admission to prison. A copy of Inmate Mitchell’s

history card documenting the infractions is attached to this Af-

fidavit, marked Exhibit A, and included as a part hereof. Inmate

Mitchell was housed at Central Prison from January 5, 1982

through March 14, 1986 when he was transferred to Caledonia

Correctional Institution. On one occasion, while Inmate Mitchell

was out to court in Wake County, he took a weapon from an

officer in the courthouse. Obviously, Inmate Mitchell has an

extremely assaultive history and was a threat to staff and inmates

while housed at Central Prison.

In July, 1983, Inmate Mitchell was assigned to maximum

custody at Central Prison. The Division of Prisons, at that time,

had four custody levels: minimum, medium, close and maxi-

mum. Maximum was the most stringent custody level in terms

of security.

Inmate Mitchell was also assigned to Intensive Manage-

ment. At that time, the purpose of intensive management was to

isolate inmates that posed an imminent threat to the life or health

of other inmates or staff of the unit or institution involved. (The

Division of Prisons abolished the status of "intensive manage-

ment" effective December 1, 1984.)

On July 11, 1983, Inmate Mitchell committed an assault

on two inmates in he day room.’ A copy of the incident report

documenting the assault is attached to this Affidavit, marked

Exhibit B, and included as apart hereof. As a result of this assault,

Inmate Mitchell was placed in restraints anytime he was to come

out of his cell. On July 24, 1983, Inmate Mitchell, while in

restraints in the dayroom on BC2A, picked up a broom and began

beating on the control station window. A copy of an office

memorandum documenting this incident is attached to this Af-

fidavit, marked Exhibit C, and included as a part hereof. On July

25, 1983, Bobby R. Watson, Assistant Superintendent of Opera-

tions at Central Prison, made a request to Mr. R. B. Seymour,

Program Director I in charge of classification, that Inmate

Mitchell needed further restrictions placed on him in order to

control his behavior. Subsequently, Inmate Mitchell’s out of cell

privileges were restricted to allow him only come out of his cell

in order to take a shower each day. This action was approved by

Mr. J. Dwight Sanderford, Assistant Director of Prisons, who was

the final approving authority. The restrictions wefe reviewed in

October, 1983. The final approving authority determined that the

restrictions were still warranted based on Mitchell’s behavior.

The restrictions were lifted in February, 1984. However, as of

February, 1984, Inmate Mitchell still presented an imminent

threat to other inmates and staff. Therefore, he was retained in

maximum custody, on intensive management status. Inmate

Mitchell’s custody and intensive management status were again

reviewed on September 10, 1984. The final approVing authority,

A4

Gene T. Cousins, determined that Inmate Mitchell should be

retained on intensive management in maximum custody.

On February 26, 1985, Inmate Mitchell was in the

dayroom when he refused instructions by the officer to go back

to his cell. Mitchell picked up a mop wringer and started beating

on the window to the control station. Therefore, Associate War-

den for Operations, Mr. Bobby R. Watson, again referred Inmate

Mitchell to classification authorities and recommended that In-

mate Mitchell not be allowed out of his cell except to shower each

day. This recommendation was considered by the classification

committee. The final approving authority, Gene T. Cousins,

approved the recommendation. Therefore, Inmate James

Mitchell was only allowed outside of his cell once a day to

shower. Subsequently, Inmate Mitchell’s classification status

was reviewed in October, 1985, and March, 1986. Inmate

Mitchell was transferred to Caledonia on March 14, 1986.

In his complaint Inmate Mitchell alleges that he was

harassed by prison officials. I absolutely deny this allegation. I

have never harassed Inmate Mitchell nor have I discriminated

against him. The restrictions that were placed on Inmate Mitchell

while he was incarcerated at Central Prison were only a conse-

quence of his own violent and assaultive behavior. When his own

behavior showed improvement, some of the restrictions placed

on Inmate Mitchell were lifted. This is shown by the classifica-

tion action in February, 1984, when his outdoor exercise period

and ability to use the law library were retumed to him. Again, in

1985, he threatened the officer in the control station with a mop

wringer by beating it against the window. Again restrictions were

necessary to control his violent behavior. As Warden of Central

Prison, it is my responsibility to protect the safety of the lives of

inmates and staff assigned to this prison. Inmate Mitchell, for

. periods of time, was restricted to his cell except to shower. This

action was justified in order to protect inmates and staff from

further assaults by Inmate Mitchell. Inmate Mitchell was

showered in full restraints. This was necessitated by his own

history of assaultive behavior.

During the periods of time that Inmate Mitchell was

restricted from going to the law library, he was allowed to request

law library materials and have them provided to him in his cell.

In conclusion, I deny that I have ever acted in a manner

intended to deprive this inmate of any rights secured to him by

the Constitution of the United States or federal law.

This the ___]__ day of July, 1986.

/s/NATHAN A. RICE

Affiant

Sworn to and subscribed before me

this the 1 day of July, 1986.

/s/ Michael J. Lamm

Notary Public

My Commission Expires: April 13, 1991

EXHIBIT A

ca aaa ileal

A6

4690-383-21157-OS JAMES CALVIN MITCHELL TYPE/CUST: MAX

ALIAS:

ADM DATE: 12/18/73

ADR: 400 SYLVANIA AVE CURR LOC: CALEDONIA 3305 SEG: A/S

CHARLOTTE 28206 ADMTLOC: POLK 3925

RACE: BLACK

SEX: MALE FPC: 18PM101515D117151516TYPE REL:

DOB: 11/01/57 FBI: 0038364M4 LST VIO: 0509/86PROJ REL: 104/30-13

POB:

OUT OF STAT PRIOR CONV: 00 TOT VIO: O76COUTY REL: MECK 60

RES: MBCKLEN

BURG SBI: BSC/ABS: 095-75ANALYST: kARASOW

HGT: 5°7" OLN: TOT BSC: 001 1/3 SPEC: 000/00

WGT: 140 OLS: TOT DET: 000 PAR ELIG: 09/18/79

HAIR: BLACK MAR: MARRIED STUDY R:PAR REFER: 01/06/87

EYES: BROWN OCC: STUDENT WORK R:COMP TYPE:

SMT: EDUC: 09 GAIN TM: COMP ST:

SOC: 238-04-9750 GOOD TIME LOST CURR.SENT: 01060TCMNSL: 35-00-00

TOT RELATIVE: ELEANOR MITCHELL MOTHER TCMXSL: 70-00-00

SENT 07 ADDRESS:

COMSER P: 000/00D

CURR CRIME: CONV CNTY F BEGIN SENT SENT REL REL JAIL SENT

SENT

01 MURDER 2ND 121773 MECK F

DATE MIN MAX MIN MAXCRED TYPE

121773 300000 000000 043093 0000000 000

DATE CONV M

PF |-PFORWARD 2-BACKWARD 3-IST SENT 4-DOC MENU W/DOC

5-DOC MENU 9-MAPP 10-MASTER MENU !!1-NAME MENU

SENTENCE SCRBEN-ACTIVE FILB 0606/86 09:53:58

M4690-383-21157-OS JAMES CALVIN MITCHELI. 3305 CALE MAX SENT 0! OF 07

CMTD MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXPOF: CONCW: HOLD: 02SQ: 02 SMAX: 00-00

ADM: 12/18/73 BEG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 0000

RULE VIOL 050986 3305 MAX 030DAYS MAJ 19 SET FIRE, EXPLOS DEVICE

RULE VIOL

RULE VIOL

041986 3305 MAX OOO DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

031486 3305 ASS OFF 00000

031186 3100 MAX CUST REV 080186 TYPE: CUST

111385 3100 MAX 030DAYS MAJ 26 ASSAULT

111385 3100 MAX CUST REV 040186 TYPE: CUST

072385 3100 MAX 000 DAYS MAJ 39 DISOBBY PRISON OFFICIAL

072285 3100 MAX 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

061085 3100 MAX 030 DAYS MAJ 39 DISOBEY PRISON OFFICIAL

060685 3100 MAX 030 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

040385 3100 MAX CUST REV 043085 TYPE: CUST

022685 3100 CLOSE 030 DAYS MAJ 33 DAMG/DSTRY/LOSE PROPERTY

021785 3100 CLOSE 000 DAYS MAJ 39 DISOBEY PRISON OFFICIAL

020685 3100 CLOSE TO MAX CUST REV 080685 TYPE: CUST

1115843100 MAX 000 DAYS MAJ 18 POSSESSING ANY WEAPON

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT

SENTENCE SCREEN-ACTIVE FILE 06/6/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 01 OF 07

CMTD: MURDER SBCOND DBGREE F MECK SUPER 00CRO00000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXPOF: CONC W: HOLD:02SQ: 02 SMAX: 00-00

ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0040/00 REST: 00000

RULS VIOL 092184 3100 MAX O30DAYS MAJ 18 POSSESSING ANY WEAPON

RULE VIOL 041684 3100 MAX OOODAYS MAJ 39 DISOBEY PRISON OFFICIAL

RULE VIOL 040584 3100 MAX O30DAYS MAJ 18 POSSESSING ANY WEAPON

RULE VIOL 122483 3100 MAX O30DAYS MAJ 19 SET FIRE, EXPLOS DEVICE

OUT TO COURT 121283 SUPERIOR WAKE

RULE VIOL 092283 3100 MAX 030DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 0724833100 MAX O030DAYS MAJ 39 DISOBBY PRISON OFFICIAL

RULE VIOL 0711833100 MAX O30DAYS MAJ 26 ASSAULT .

RULE VIOL 0516833100 MAX OISDAYS MAJ 38 PROFANE LANG/GESTURE/ACT

COMMENT 040183 NEW PRISON POLICY FOR TIME CREDIT

RULE VIOL 0402833100 MAX 030DAYS MAJ 18 POSSESSING ANY WEAPON

CUSTODY 0616823100 CLOSE TO MAX CUST REV 121682

COMMENT 020182 NEW PRISON POLICY POR TIME CREDIT

COMMENT 23181 GOOD TIME POR PAR ELIG 0982 DAYS

COMMENT 123181 G OOD TIME POR PAR ELIG 09862 DAYS

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

SENTENCE SCRBEEN-ACTIVE FILE 0606/86 09:54:49

M4690-383-21157-OS JAMES MITCHELL 3305 CALE MAX SENT 01 OF 07

CMTD MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXP OF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00

ADM: 12/18/73 BBG: 12/17/73; MIN: 30-00-00 EX MIN: 04/30/93

CONV. 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/000 REST: 00000

RULE VIOL 111681 3940 CLOSE 000 DAYS MAJ 26 ASSAULT

SEGREGATION 111681 4465 ASS OFF 010582

SBGRBEGATION 100281 4465 D/S OFF 102981

RULE VIOL 092481 3940 CLOSE 030 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 091881 3940 CLOSE 030 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 072381 3940 CLOSE 000 DAYS MAJ 20 FIGHTING (BODILY INJURY)

SEGREGATION 071581 4465 DAS OFF 082181

RULE VIOL 070281 3940 CLOSE 000 DAYS MAJ 39 DISOBEY PRISON OFFICIAL

RULE VIOL 062281 3305 CLOSE 000 DAYS MAJ 18 POSSESSING ANY WEAPON

SBGREGATION 0603813305 D/S OFF 062581

RULE VIOL 052481 3305 CLOSE 030 DAYS MAJ 39 DISOBEY PRISON OFFICIAL

CUSTODY 030481 3100 MAX TO CLOSB

CUSTODY 071080 3940 CLOSE TO MAX =CUST REV. 011081

RULE VIOL 062380 3940 CLOSE 030 DAYS MAJ 26 ASSAULT

RULE VIOL 060780 3940 CLOSE 030 DAYS MAJ 26 ASSAULT

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

SENTENCE SCRBBN-ACTIVE PILE 060686

_ Saag

09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305CALE MAX SENT 0! OF 07

CMTD MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT

JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00

ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0000/00 REST: 00000

RULE VIOL 030480 3310 CLOSE 030 DAYS

RULE VIOL 022380 3310 CLOSE 030 DAYS

RULE VIOL 021980 3310 CLOSE 030 DAYS

GAIN TIME 021980

GAIN TIME 020580

GAIN TIME 010980

RULE VIOL 010980 3310 CLOSE 030 DAYS

RULE VIOL 010980 3310 CLOSE 030 DAYS

GAIN TIME 22779 RATE 2

RULE VIOL 122579 3310 CLOSE 000 DAYS

GAIN TIME 121979

RULE VIOL 121179 3310 CLOSE 030 DAYS

RULE VIOL 121079 3310 CLOSE 000 DAYS

GAIN TIME 12079 RATE 2

RULE VIOL 102579 3310 CLOSE 000 DAYS

RATE 2

MAJ 39 DISOBEY PRISON OFFICIAL

MAJ 10 DISORDERLY CONDUCT

MAJ 26 ASSAULT

MAJ 38 PROFANE LANG/GESTURE/ACT

MAJ 39 DISOBEY PRISON OFFICIAL

MIN 39 DISOBEY PRISON OFFICIAL

MAJ 39 DISOBEY PRISON OFFICIAL

MIN 39 DISOBEBY PRISON OFFICIAL

MAJ 38 PROFANE LANG/GESTURE/ACT

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

SENTENCE SCREEN-ACTIVE FILE 06066

09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT01 OF 07

CMTD MURDER SBCOND DEGREE F MECK SUPER 00CRO00000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00

ADM: 12/18/73 BEG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0000/00 REST: 00000

GAIN TIME 100979

RULE VIOL 100879 3310 CLOSE 030 DAYS

RULE VIOL 100179 3310 CLOSE 000 DAYS

RULE VIOL 100179 3310 CLOSE 030 DAYS

RULE VIOL 092179 3310 CLOSE 000 DAYS

GAIN TIME 082979 RATE 2

GAIN TIME 082079

RULE VIOL 082079 3310 CLOSE 030 DAYS

GAIN TIME 081479 RATE 2

GAIN TIME 080479

RULE VIOL 080479 3310 CLOSE 030 DAYS

GAIN TIME 070979 RATE 2

RULE VIOL 062779 3310 CLOSE 030 SUSP

RULE VIOL 050779 3310 CLOSE 000 DAYS

RULE VIOL 041779 3310 CLOSE 030 DAYS

MAJ 39 DISOBEY PRISON OFFICIAL

MAJ 39 DISOBEY PRISON OFFICIAL

MAJ 38 PROFANE LANG/GESTURE/ACT

MIN 39 DISOBEY PRISON OFFICIAL

MAJ 39 DISOBEY PRISON OFFICIAL

MAJ 18 POSSESSING ANY WEAPON

MAJ 39 DISOBEY PRISON OFFICIAL.

MIN 39 DISOBEY PRISON OFFICIAL

MAJ 39 DISOBRY PRISON OFFICIAL

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 1!-NAME ENTER-

CONT.

SENTENCE SCREEN-ACTIVE FILE 060686

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT01 OF07

CMTD: MURDER SECOND DEGREE F MBCK SUPER 00CR000000 JUDGE: NOT

JAIL: GAIN: EXPOP: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00

ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093

09:54:49

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 00000

RULE VIOL

041779

101979 3310 CLOSE 015 DAYS

101178

100378 3310 CLOSE 030 DAYS

100378

091978 3310 CLOSE 000 DAYS

081178

061578

011878 3310 CLOSE 000 DAYS

121777

120977 3310 CLOSE 000 DAYS

112177 3310 CLOSE 030 DAYS

112177

100577 3310 CLOSE 000 DAYS

091477 3310 CLOSE 030 DAYS

MAJ 18 POSSESSING ANY WEAPON

MAJ 24 ESCAPING

MAJ 39 DISOBEY PRISON OFFICIAL

MAJ 03 PEIGN ILLNS TO AVOID WRK

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

SENTENCE SCREEN-ACTIVE FILE 060686

09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENTO! OF07

CMTD: MURDER SBCOND DEGREE F MBCK SUPER 00CR000000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00

\ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 00000

RULE VIOL

RULE VIOL

GAIN TIME

CUSTODY

RULE VIOL

RULE VIOL

RULE VIOL

RULE VIOL

“ULE VIOL

RULE VIOL

RULE VIOL

RULE VIOL

GAIN TIME

RULE VIOL

RULE VIOL

081777 3310 CLOSE 010 DAYS

050977 3310 CLOSE 000 DAYS

042877

042277 0000 MED

032977 3925 MED 030 DAYS

031777 3925 MED 000 DAYS

031177 3925 MED 000 DAYS

021677 3925 MED 030 DAYS

021577 3925 MED 000 DAYS

010177 3925 MED 000 DAYS

121276 3925 MED 030 DAYS

082476 3805 MED 000 DAYS

071576

061676 3805 MED 000 DAYS

060876 3805 MED 000 DAYS

MAJ 39 DISOBEY PRISON OFFICIAL

MAJ 39 DISOBEY PRISON OFFICIAL

RATE 2

MAJ 33 DAMG/DSTRY/LOSE PROPERTY

MIN 39 DISOBEY PRISON OFFICIAL

MIN 39 DISOBEY PRISON OFFICIAL

MAJ 38 PROFANE LANG/GESTURE/ACT

MAJ 38 PROFANE LANG/GESTURE/ACT

MIN 39 DISOBEY PRISON OFFICIAL

TRANSFERRED

MIN 26 ASSAULT

MIN 39 DISOBEY PRISON OFFICIAL

PF 4-MENU W/DOC S-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

Al0

SENTENCE SCREEN-ACTIVE FILE 060686 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENTO! OF 07

CMTD: MURDER SECOND DEGREE F MBECK SUPER 00CR000000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 S MAX: 00-00

ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 00000

GAIN TIME 052576 RATE 2

RULE VIOL 030676 3805 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 090575 3905 MED 000 SUSP MAJ 24 ESCAPING

CAPTURE 090575 3905

ESCAPE 090575 3905 MED

RULE VIOL 020375 3905 MED 000 DAYS MAJ 26 ASSAULT

RULE VIOL 092174 3905 MED 000 SUSP MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 091574 3905 MED 000 DAYS MAJ 26 ASSAULT

RULE VIOL 082074 3905 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 070974 3905 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 020774 3905 MED 000 DAYS MAJ 26 ASSAULT

CERTIFI-

CATION 012574 CANC US MARSHALL ASHEVILLE NC

RULE VIOL 011474 3905 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT

RULE VIOL 010874 3905 MED 000 SUSP MAJ 39 DISOBEY PRISON OFFICIAL

JAIL CREDIT 121773 158 DAYS

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 01 OF 07

CMTD: MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: (2S MAX: 00-00

ADM: 1! 2/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0000/00 REST: 00000

SENTENCE SCREEN-ACTIVE FILE 066/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 0! OF 07

CMTD: MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT

REPORTED

JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02S MAX: 00-00

ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093

CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/000 REST: 00000

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

|

»

SENTENCE SCREEN-ACTIVE FILE 060686 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 03 OF 07

ASSAULTS F MBCK SUPER 00CRO000 00 JUDGE: NOT REPORTED

JAIL: GAIN: EXPOP: CONC W: HOLD: 02 SQ: 04S MAX: 00-00

ADM: 12/18/73 BBG: 0000/00 MIN: 03-00-00 EX MIN: 00/00/00

CONV: 04/23/75 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/000 REST: 00000

SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 04 OF 07

ESCAPE PRISON F MBCK SUPER 00CRO00000 JUDGE: NOT REPORTED

JAIL: GAIN: EXPOPF: CONC W: HOLD: SQ: 05S MAX: 00-00

ADM: 12/18/73 BBG: 000/00 MIN: 00-04-00 EX MIN: 0000/00

CONY: 11/10/75 REL: 104/30/13 MAX: 00-00-00 EX MAX: 000000 REST: 00000

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

SENTENCB SCREBN-ACTIVE FILE 06/06/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 0S OF 07

AWDWISI F CASH SUPER 80CR001262 JUDGE: CHARLES T. KIVETT

JAIL: 000 GAIN: EXPOF: 01 CONC W:02 HOLD: SQ: 06 SMAX: 00-00

ADM: ‘2/18/73 BBG:00/00(0 MIN: 00-00-00 EX MIN: 00/0000

CONV: 10/14/80 REL: 104/30/13 MAX: 00-12-00 EX MAX: 00/0040 REST: 00000

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

Al12

SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 06 OF 07

AWDWWITKISI F WAKE SUPER 83CRO49 7 JUDGE: H V BARNETT

JAIL: 000 GAIN: EXPOF:02 CONC W: HOLD:07 SQ: 07 SMAX: 00-00 FR-F

ADM: 09/20/84 BEG: 104/30/98 MIN: 00-00-00 EX MIN: 00/00/00

CONV: 09/20/84 REL: 104/30/13 *MAX: 20-00-00 EX MAX: 104/30/03 REST: 00000

COMMENT 082685 NO ERROR BY CRT OF APPEALS

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 1!1-NAME ENTER-

CONT.

SENTENCE SCREEN-ACTIVE FILB 0606/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 07 OF 07

AWDWISI F WAKE SUPER 83CR049596 JUDGE: H VY BARNETT

JAIL: 000 GAIN: EXPOF:06 CONC W: HOLD: SQ: SMAX: 00-00 FR-H

ADM: 12/18/73 BBG: 104/30/08 MIN: 00-00-00 EX MIN: 00/00/00

CONV: 09/20/84 REL: 104/30/13 *MAX: 10-00-00 EX MAX: 104/30/13 REST: 00000

COMMENT

TRANSFER

TRANSFER

TRANSFER

TRANSFER

TRANSFER

TRANSFER

TRANSFER

TRANSFER

082685

031486 3100MAX TO 3305

010582 3940 CLOSE TO 3100

062581 3305 CLOSE TO 3940

030481 3100-MAX TO 3305

073080 3940 CLOSE TO 3100

051380 3100 CLOSE TO 3940

043080 3940 CLOSE TO 3100

031980 3310 CLOSE TO 3940

NO ERROR BY CRT OF APPEALS

TRANSFER

TRANSFER

TRANSFER

TRANSFER

042777 3925 MED TO 3310

120776 3805 MED TO 3925

120376 3925 MED TO 3805

102876 3805 MED TO 3925

TRANSFER 072276 3100 MED TO 3805

TRANSFER 071576 3805 MED TO 3100

PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER-

CONT.

SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49

4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 07 OF 07

AWDWISI F WAKE SUPER 83CR049596 JUDGE: H V BARNETT

JAIL: 000 GAIN: EXPOF:06 CONC W: HOLD: SQ: SMAX: 00-00 FR-H

ADM: 12/18/73 BEG: 104/308 MIN: 00-00-00 EX MIN: 00/000

CONV: 09/20/84 REL: 104/30/13 *MAX: 10-00-00 EX MAX: 104/30/13 REST: 00000

TRANSFER 012276 3905 MED TO 3805

TRANSFER

TRANSFER

TRANSFER

TRANSFER

Al3

EXHIBIT B

OFFICE MEMORANDUM

TO: G.E. Currie, Captain DATE: July 13, 1983

FROM: /s/R.G. West, Lieutenant

RE: Incident Report Assault of Inmates

Harold Waddell 10163-41

Vernon Talbert 10753-0S

On July 11, 1983 at approximately 10:15 a.m:, while the lower level of

2A Westside was having dayroom privileges, Officer Jernigan who was

working BC2A observed Inmates Willie Granford, 20952-80 and James

Mitchell 21157-0S assaulting Inmates Vernon Talbert 10753-0S and

also Harold Waddell 10163-41 with homemade weapons (shanks). He

immediately used his intercom and advised OC3 that he had a fight in

the dayroom and to send some help in a hurry because the Inmates had

weapons.

Sgt. Richardson who was working OC3 immediately called me in the

Lieutenant’s Office and also stopped Officer Brooks and Boyd who

were enroute to the hospital with an IM Inmate and told them to report

to 2A. Officer Brooks left Officer Boyd with the Inmate and ran down

the hall toward 2A, slowing down at the Sergeants Office long enough

to get Sgt. Alford. I immediately called Captain Currie’s Office, Lt. J.

V. Fogg answered the phone and I instructed him to send all available

help from the east side to 2A, that a fight was in progress. I then ran to

2A dayroom, Sgt. Alford, Officers Brooks and Douglas were already

at the scene. All Inmates were in their cells when I arrived with the

exception of the victims. Inmate Waddell was lying against door 89

(inside sallyport door on 2A Westside) causing it to jam, so we had to

Al4

use the eastside entrance and go through the lower level emergency exit

door to get to the scene.

I immediately went to the victims and observed both bleeding profusely,

I instructed Officers Jernigan and Cole (Mr. Cole was working 1A and

came upstairs to help) to get medical aid and some stretchers. Officer

Cole stated he had already called the First Aid Room and that nurses

were on their way. Nurses Morgan and Baker arrived shortly and were

able to enter from the Westside, Inmate Waddell had moved some and

door 89 would open without difficulty. They rendered first aid until the

stretchers arrived, then they accompanied the victims to the Acute

Hospital, where they were treated and admitted to the Intensive Care

Unit.

I then instructed Sgt. Hill and Sgt. Alford to use the Officers that were

on the scene to search all inmates and cells on the Westside on 2A. A

total of four (4) homemade weapons were found, they are being kept

by Sgt. Alford as evidence. The weapons were found in the following

Inmates Cells: 1. Willie Granford 20952-80 AL-201, 2. James Mitchell

21157-OS AL-207, 3. Demorris Carter 20054-33 AU-207, 4. Claudie

Carter 20451-25 AL-205. I then began my investigation, there were

five (5) inmates in the dayroom when the assault occurred. They were

the victims, the assailants and Josh Matthews (he did not participate).

Two (2) other Inmates are housed on the lower level but are currently

on cell lock-up. They are Kenneth Cherry and Claudie Carter.

Pictures were taken of the dayroom area, they will be attached. I was

unable to get pictures of the victims due to the emergency medical

attention needed to stop their loss of blood.

I talked privately with every Inmate housed on the Westside of 2A,

Upper and Lower levels. Everyone seemed to think this was something

planned by the assailant and it seeius they kept it quiet, because no one

knew about it. It appears there had been no argument, or negative

feeling between the assailants and the victims. On July 12, 1983 I

questioned the victims in the ICU, Inmate Waddell was very sarcastic

and disrespectful, Inmate Talbert (has only been at CP about a week)

stated he didn’t even know the assailants, and could offer no explanation

for the assault. I then questioned some Inmates on B-Block who had

recently moved from A Block, they could offer nothing of benefit.

aerate ent

Al5

Next I got written statements from all staff involved. Officer Jernigan

who was working in BC2A stated the first thing he saw was inmate

Willie Granford attack Harold Waddell with a long shiny object. As he

was using his intercom to contact Sgt. Richardson to send help he

observed James Mitchell attack Vernon Talbert with a shorter weapon.

Officer Cole who was working 1A heard Officer Jernigan calling for

help and came upstairs to help and he called FAR for medical help.

Both Officer observed the assault and observed Inmate Granford beat-

ing the victims about the head with a mop bucket. The Officers state

that they pounded on the glass to get the Inmates attention and gave

them several direct orders to stop fighting. Officer Jernigan observed

Officer Douglas standing in the hallway near the Chaplains Office (he

was escorting some Death Row Inmates) and yelled to him that he had

a fight to get some help. He went to the Westside of 2A and observed

both assailants striking both victims. He started after some help but

saw Sgt. Alford and Officer Brooks coming. When Sgt. Alford and

Officer Brooks reached the westside of 2A, the outside door (88) to the

sallyport was open, but the inside door (89) would not open, Inmate

Waddell was lying against it and had it jammed, they observed Inmate

Granford and Mitchell stab the victims several times. Realizing that

door 89 would not open they went through the eastside and used the

lower level emergency door to gain entrance to the Westside dayroom,

When they arrived the assailants had stopped their attack and were

going into their cells.

While talking to the Inmates I got several conflicting bit and pieces of

information

(1) Both of the Victims are white, it seems that Inmate Waddell

stabbed a Black Inmate recently while at Blanch Prison by the name

of Gus George, and Talbert stabbed an Inmate Dennis Oaks very

recently while assigned to Avery County. This is their reason for

being in Maximum Custody, on Intensive Management and as-

signed to Central Prison.

Al6

(2) It seems Inmate Granford has a clique going with several other

black Inmates housed on the Westside of 2A and he is quiet

disturbed because there are no homosexuals on this block. He has

written grievances complaining of this. He had directed sexual

slurs toward Inmate Waddell in the past but the best I can determine

no one including Waddell had taken him serious.

Both assailants will be charged Administratively with violations of

articles 18, 26 and 39, they are currently on Administrative Segregation

pending a hearing by Unit Supt.

I have read the Miranda Warning to each assailant and explained their

rights, they both acknowledged that they fully understood. They

declined to make any statement at this time.

I recommend that both assailants be kept in full mechanical restraints

anytime they are out of their cells. My reasoning for this is that I fully

think this assault would have been fatal had their weapons and timing

been better.

If additional information is needed please advise.

Attachments

Pictures (6)

Hospital Emergency Room Report (2)

Statements of Witnesses

OK

/s/ illegible

7-14-83

Al7

EXHIBIT C

OFFICE MEMORANDUM

TO: Capt. H.M. Godfrey DATE: 7-24-83

FROM: /s/ Lt. E.E. Hodge

RE: Inmate James C. Mitchell M4690-383-21157-0S

OFFENSE REPORT

My investigation revealed on 7-24-83, around 6:40 p.m., Officer

Grant, who was assigned to BC2A, observed Inmate James C.

Mitchell, who was in the East side dayroom in full restraints, come

up to the BC Station. Mitchell began to question Officer Grant on

the provisions of a memorandum set forth by Supt. Watson that

states the food passage doors on the doors of Disciplinary lock-up in-

mates will remain closed unless in use. Officer Grant explained to

Mitchell he was observing the memorandum, whereas he didn’t want

to argue with Mitchell over it. Mitchell became unruly and wanted

to argue some more, but Officer Grant walked away from the front

of the Station.

Inmate Mitchell, seeing Officer Grant had walked away from him,

yelled for Officer Grant to return to the front of the Station so he

could talk to him. When Officer Grant refused, Mitchell picked up a

broom that was in the day room and began banging on the Lexan

glass with the broom handle, stating he wanted to see the Sgt. Of-

ficer Grant immediately told him to stop beating on the glass

whereas Mitchell told Grant he didn’t want to hear that shit and con-

tinued to bang on the glass with the broom. Mitchell became persist-

ent end continued to bang on the glass. Officer Grant at this time

Al8

called the Sgt. by phone to explain the problem he was having.

Mitchell seeing Officer Grant on the phone, stopped banging on the

glass.

I questioned Inmate Mitchell about the incident. Mitchell eventually

admitted to me that he did in fact bang on the glass with the broom

but it was only after the Officer had turned his back on him. I care-

fully explained to Mitchell the proper avenue to take to air a com-

plaint.

I chose to advise Mitchell of his rights and inform him I was charg-

ing him with Section 39. Mitchell refused to sign, make, or have

anyone else submit a statement in his behalf. Mitchell was tcld that

he would remain as is, disciplinary lock-up, pending a Supt. hearing.

Al9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

NO. 86-235-CRT

FILED

Jul 20 1987

JAMES CALVIN MITCHELL

Plaintiff

v.

GOV. JAMES MARTIN,

NATHAN RICE, BOBBY WATSON,

BOB SEYMOUR

Nee Ne ON Ne Ne ee ees we GS

Defendants

Plaintiff, a state court prisoner in the custody of the North

Carolina Department of Correction and housed at the time of the

matters in question at Central Prison in Raleigh, has brought this

civil rights action pursuant to 42 U.S.C. § 1983, in which he

alleges violations of his constitutional rights. Specifically, the

plaintiff contends that:

(a) He has been deprived of an opportunity to have a

proper shower because prison officials put him in full restraints;

(b) He has been denied any kind of recreational activities

outside his cell and, furthermore, that he has been denied daily

sunshine and fresh, outside air;

(c) He has been denied permission to clean his prison cell

daily with needed equipment such as broom, mop, etc.;

(d) He has been denied the use of the Central Prison law

library for reasons unjustified, which denies him access to the

courts;

(¢) He has been exposed to cruel and unusual punishment

and inhumane and sadistic treatment without reasonable justifica-

tion;

(f) He has been denied due process because he was placed

in intensive management lockup by an inter-prison committee,

and his only counsel was a staff member of the prison system.

Therefore, he was denied effective counsel and denied due

process.

(g) Prison officials have demonstrated unjust discrimina-

tion by not responding to his requests;

(h) He did not assault or threaten staff or inmates but,

rather, he damaged state property when he took a mop wringer

and hit the plexiglas window of a guard station several times,

making a few scratches and leaving the mop wringer bent;

(i) His letters to institution heads have been met with

replies of pure disrespect and mockery; and

(j) He is being discriminated against mentally, physically,

arbitrarily, capriciously, and illicitly.

Plaintiff seeks $175,000 in damages for the alleged viola-

tions of his rights guaranteed by the Eighth Amendment and the

Due Process Clause of the Fourteenth Amendment of the U.S.

Constitution.

The defendants seek dismissal of Governor Martin as a

defendant and a judgment as a matter of law and a dismissal of

the action, alleging that the plaintiff has failed to state any

grounds upon which relief can be granted. These motions are

now ready for ruling.

A. Mootness

The defendants contend that allegations in the complaint

are moot. Since the prisoner was moved to Caledonia Correc-

tional Institution on May 14, 1986, there no longer exists an

outstanding case or controversy between the plaintiff and the

defendants for which injunctive or declaratory relief is

appropriate. See Inmates v. Sheriff Owens, 561 F.2d 560 (4th

Cir. 1977). However, his claim for damages would not be moot.

B. Dismissal of Governor Martin as a Defendant

The defendants contend that the doctrine of respondeat

Superior does not apply in civil rights actions in the absence of

some sort of personal involvement in the deprivation of constitu-

tional rights. A defendant may not be held liable on the theory

of implied liability. Liability attaches if conduct directly causing

deprivation is done to effectuate official policy or custom for

which the official is responsible. Vinnedge v. Gibbs, 550 F.2d

946 (4th Cir. 1977). Govemor Martin had no personal involve-

ment in inmate Mitchell’s case and cannot be held liable simply

because of his position as Govemor of North Carolina. The

defendants’ motion to dismiss Governor Martin as a defendant

should be ALLOWED.

C. Conditions of Confinement

Plaintiff Mitchell contends that the restrictions placed

upon his ability to exercise, shower and clean his cell daily have

amounted to cruel and unusual punishment. The defendants

argue that inmate Mitchell must be in full restraint in maximum

security because he assaulted two other inmates in 1983 during

his incarceration at Central Prison (see Affidavits of Warden

Nathan Rice and Bobby Watson), where he was serving a 30-year

sentence for second-degree murder and concurrent sentences for

armed robbery, assault with a deadly weapon inflicting serious

injury, and attempted escape from prison. He received an addi-

tional 30 years to begin at the expiration of all other sentences.

Inmate Mitchell also incurred 76 infractions of prison rules since

his admission to prison, demonstrating extremely assaultive

history, and he was a threat to staff and inmates while housed at

Central Prison (January 5, 1982, through March 14, 1986).

Prison administrators have a responsibility to protect

inmates from assaults by other inmates. See Withers v. Levine,

651 F.2d 158 (4th Cir), cert. denied, 449 U.S. 849 (1980).

Central Prison officials had a duty to protect other inmates and

staff from inmate Mitchell’s assaultive behavior and, therefore,

extreme restraint was necessary because of his behavioral history.

Prison officials would have been remiss in their duties had they

acted otherwise.. Warden Rice also denied in his affidavit that the

inmate had been harassed at any time.

- Prison officials must also balance their responsibilities

to provide prison inmates adequate opportunities to shower,

exercise, and clean their ceils with their duty to provide other

inmates with a safe living environment. See Sweet v. South

Carolina Department of Corrections, 529 F.2d 584 (4th Cir.

1975). Unless the prisoner is confined in a manner which is

a ot arte Sh tld

htabey

wrth Se Ene Mt a

A23

“physically barbarous," the proscriptions of the Eighth Amend-

ment have not been violated. Estelle v. Gamble, 429 U.S. 97,

5 L.Ed.2d 251, 97 S. Ct. 285 (1976). "Conditions that cannot be

said to be cruel and unusual under contemporary standards are

not unconstitutional." To the extent that such conditions are

restrictive and even harsh, they are part of the penalty criminal

o.fenders pay for their offenses against society. Rhodes v. Chap-

man, 452 U.S. 337, 347, 69 L.Ed.2d 59, 69, 101 S. Ct. 2392

(1981).

Prisoner Mitchell’s past disruptive and dangerous be-

havior provides ample justification for the restrictions placed

upon him. (See Affidavit of Warden Rice.) To allow him clean-

ing items for his cell might have given him more opportunity to

use them upon others. He cannot object to his conditions simply

because he was not satisfied with them. He was given adequate

opportunities to attend to his health and hygiene needs, given his

violent tendencies. See Clay v. Miller, 626 F.2d 345 (4th Cir.

1980). Therefore, his requested claim for relief should be

DENIED.

D. Due Process Considerations

The plaintiff claims he was denied due process because

he was placed in intensive management lockup by an inter-prison

committee. Statements of prison officials (see Affidavits of R.

B. Seymour and Bobby Watson) indicate that these changes in

classification were a direct result of his disruptive behavior and

assaults on others, and they were made by proper procedures in

use at the time by the Division of Prisons. Inmate Mitchell was

given notice and a proper hearing as to these changes in his

classification. When administrative segregation is at issue, due

process merely requires that the inmate receive some notice of

the charges against him and an opportunity to present his views

to the prison official charged with deciding whether to transfer

him to administrative segregation. Hewitt v. Helms, 459 U.S.

460 (1983).

E. Denial of Access to the Courts

Plaintiff contends that he has been denied access to the

courts He alleges that he was unjustifiably restricted from the

prison law library. States have a constitutional duty to provide

reasonable access to the courts. Bounds v. Smith, 430 U.S 817,

52 L.Ed.2d 72, 97 S. Ct. 1491 (1971). North Carolina provides

prisoner law libraries to satisfy this requirement, but prison

officials may make reasonable restrictions as to the operation of

these libraries. Again, prison order and the safety of other

prisoners is paramount. See Williams v. Leek, 584 F.2d 1336 (4th

Cir. 1978).

Prisoner Mitchell was a maximum security prisoner who

had attacked two other prisoners, grabbed a gun, although un-

loaded, from a guard, and struck a prison guard booth. Prison

records and affidavits amply demonstrate the necessity of limit-

ing the prisoner to the use of legal materials in his cell. This

reasonable security measure did not deny him access to the

courts. Therefore, the plaintiff failed to show that he was denied

due process or that he has been injured by the security restrictions

on his on-site use of the prison library. The plaintiff was provided

use of legal materials, but his maximum security status neces-

sitated restricted access. See Hatfield v. Bailleaux, 290 F.2d 632

(9th Cir. 1961).

E. Allegations of Discriminati

Furthermore, the plaintiff’s allegations of discrimination

are conclusory and should be DISMISSED. See White v. Boyle,

538 F.2d 1077 (4th Cir. 1976).

$

Zz

4

*

CONCLUSION

For the foregoing reasons, the plaintiff has failed to state

any valid grounds upon which relief can be granted. Therefore,

the defendants’ motion for summary judgment should be

ALLOWED.

THIS MEMORANDUM AND RECOMMENDATION

ENTERED this the 17th day of July, 1987.

/s/Charles K. McCotter, Ir.

CHARLES K. McCOTTER, JR.

United States Magistrate

I certify the foregoing to be a true

and correct copy of the original.

J. Rich Leonard, Clerk

United States District Court

Eastern District of North Carolina

By /s/ Lorita K. Pinnix

Deputy Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION FILED

Aug 12 1987

NO. 86-235-CRT

JAMES CALVIN MITCHELL )

Plaintiff. )

)

v. ) ORDER

)

GOVERNOR JAMES MARTIN, )

et al., )

Defendants. )

On 20 July 1987 Magistrate Charles K. McCotter, Jr., filed

his memorandum and recommendation with regard to the motion by

defendants to dismiss or, in the alternative, for summary judgment.

In apt time plaintiff filed objections, and the matter is now before the

court for decision.

Upon review the court is convinced that the recommenda-

tion uf Masistraic McCotter is, in all r ts, in accordance with

law. Therefore, the objections of plaintiff to the recommendation are

overruled, the court adopts the recommendation of Magistrate Mc-

Cotter as its own, and for the reasons set forth in his memorandum

the motion by defendants for summary judgment is allowed and this

action is hereby dismissed.

This 12 day of August, 1987.

/s/W. Earl Britt _

W. EARL BRITT

United States District Judge

I certify the foregoing to be a true and

Eastem District of North Carolina

By: /s/ (illegible) __

Pee eR aD ee

‘ . 5 ol ye ee eee ere een

ee id 6 0 0 A MEOOLE EA | RT A iin cat TE AEN sl Bi Lhe Ne

LOA Lait SI espn RD ceil OG

a el lavea

, Vhabid Herts: <&

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

JAMES CALVIN MITCHELL,

Plaintiff JUDGMENT IN A CIVIL CASE

v.

GOV. JAMES MARTIN,

NATHAN RICE, BOBBY

WATSON, BOB SEYMORE, Case Number: 86-235-CRT

Defendants

Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury has rendered

its decision.

X Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED

that the court adopts the recommendation of the magistrate, the

defendants’ motion for summary judgment is allowed and this

action is DISMISSED.

THE ABOVE JUDGMENT WAS ENTERED THIS DAY,

August 12, 1987 AND A COPY MAILED TO:

James Calvin Mitchell Mr. Lucien Capone, ITI

Central Prison Special Deputy Attomey General

1300 Western Blvd. N.C. Department of Justice

Raleigh, NC 27606 P.O. Box 629

Raleigh, N.C. 27602-0629

AUGUST 12,1987 ——.._ RICH LEONARD

Date Clerk

/s/ Steven B. Wade _

(By) Deputy Clerk Steven B. Wade

(UNPUBLISHED)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-6592

JAMES CALVIN MITCHELL

Plaintiff-Appellant

Ve

JAMES MARTIN, Governor;

NATHAN RICE; BOBBY

WATSON; BOB SEYMORE

Defendants-Appellees

Appeal from the United States District Court for the Eastern District

of North Carolina, at Raleigh. W. Earl Britt, Chief District Judge.

(C/A No. 86-235-CRT)

Submitted: October 30, 1987 Decided: December 17, 1987

Before RUSSELL, PHILLIPS, AND CHAPMAN, Circuit

Judges.

(James Calvin Mitchell, Appellant Pro Se. Lucien Capone, II,

Assistant Attorney General, for Appellees.)

ee

PER CURIAM:

James Calvin Mitchell, a North Carolina inmate, appeals

the dismissal of his 42 U.S.C. § 1983 action. He brought this suit

for damages against the Central Prison warden, the superinten-

dent of operations, the chairman of the ICC board, and the

Governor of North Carolina. He alleged that his fourteenth and

; eighth amendment rights were violated because:

3

;

:

3

i

(1) prison officials tried to provoke him to justify their

mental and physical abuse of hirn;

(2) he was forced to shower in full restraints;

(3) he was denied all recreational activities and exercise

outside of his cell including daily sunshine and fresh air for

extended periods;

(4) he was not allowed to clean his cell daily;

(5) he was restricted in his use of the law library;

(6) when he was disciplined, the only due process he was

afforded was the assistance of a staff member to help him

when he met with the disciplinary committee; however, he

was allowed no witnesses;

(7) he was put in restraints in violation of the rules because

he was disciplined for an incident which only involved

damaged property; and

(8) his punishment was unusually severe and as such vio-

lated the equal protection clause.

eink

The respondents submitted extensive evidence regarding

Mitchell’s history of assaultive behavior while in prison. A

magistrate carefully reviewed all of Mitchell’s claims and recom-

mended granting summary judgment for the defendants. After

considering Mitchell’s objections to the magistrate’s report, the

district court reviewed the record de novo and adopted the

magistrate’s report and recommendation. On appeal Mitchell

requests a temporary restraining order against the defendants for

allegedly harassing him although he states he is no longer in

restraints.

We have thoroughly reviewed the record, and we find that

the district court’s decision based on she magistrate’s recommen-

dation is correct on all points with the exception of Mitchell’s

claims that he was denied all exercise and outside activities for

three extended periods, one of which exceeded a year. Therefore,

this case shall be affirmed in part and vacated in part. Regarding

his claim for denial of exercise, Mitchell alleged the following.

In July of 1983, after seriously assaulting two inmates and

subsequently beating on a guard booth with a broom, Mitchell’s

out-of-cell privileges were restricted tc allow him only to come

out of his cell to take a shower each day. Before leaving his cell

to shower, he was placed in full restraints. Full restraints included

handcuffs, a waistchain, and leg cuffs. After seven months, these

out-of-cell restrictions were lifted. One year later, Mitchell again

beat on a guard booth with a mop, and, as a result, he was only

allowed out of his cell to shower each day. Whenever he came

out of his cell to shower, he was placed in full restraints. As a

result, Mitchell was allowed no exercise or outdoor activity for a

period of thirteen months, after which he was transferred to

Caledonia Prison Mitchell was transferred back to Central Prison

in December of 1986, and was involved in a serious altercation

with a guard in February of 1987. His out-of-cell privileges were

= is

a - 1”

She eater Oa Bat) aha

nde POT ATR athe he ALT ae TO DP SN A aia ten! CE SO pep WINS Oe ee eT aes it”

again restricted to allow him to come out of his cell only to take

a shower each day. Before being allowed to shower, Mitchell

was placed in full restraints. It is not clear from the record how

long the restrictions which were placed on Mitchell in February

of 1987 were maintained.

Summary judgment for the defendants on this claim was

inappropriate. Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir.

1983)(summary judgment for defendant was improper where

plaintiff alleged 46-day denial of out-of-cell exercise); Kirby v.

Blackledge, 530 F.2d 583, 584-87 (4th Cir. 1976)(summary

judgment for defendant premature because inadequate exercise

taken alone can reach level of cruel and unusual punishment).

Although the prison had legitimate concems about Mitchell’s

assaultive history, these concems cannot justify a complete denial

of exercise for over a year. The courts have reviewed the rights

of inmates at least as dangerous as Mitchell and have held that

they retain a right to exercise. See, ¢.g., Spain v. Procunier, 600

F.2d 189, 199 (9th Cir. 1979)(most dangerous men of prison, each

of whom had been convicted of or charged with violent acts while

in prison even before being responsible for crimes in which three

prison guards and two inmates were killed, would be entitled to

fresh air and regular outdoor exercise).

We have held that conditions of administrative segrega-

tion will meet constitutional standards if inmates are provided

regular times to exercise. Shrader v. White, 761 F.2d 975, 981

(4th Cir. 1985). Moreover, in Sweet v. South Carolina Dep’t of

Corrections, 529 F.2d 854, 865-66 (4th Cir. 1975), we remanded

the case for a determination of whether two exercise periods a

week met constitutional standards. Finally, under the cir-

cumstances of the instant case, where an inmate was denied all

exercise for over a year, we do not think that our holding in Clay

v. Miller, 626 F.2d 345, 347 (4th Cir. 1980), can be construed to

A32

mean that Mitchell must first sustain an injury from this denial

before he has a valid constitutional claim.

Therefore, we vacate the entry of summary judgment on

Mitchell’s claim regarding the denial of exercise and outdoor

activity and remand the case to the district court for further review

of that claim. In all other respects, the district court’s judgment

based on the magistrate’s recommendation is affirmed. As

Mitchell is no longer in restraints and makes only vague and

conclusory allegations of harassment, we deny his motion for a

temporary restraining order. Because the dispositive issues have

recently been decided authoritatively, we dispense with oral

argument.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

iS aI LAH ASDA Pe Sita GOR SM SRL DMI eles RE aM aA Sahih SA in Se WPF ANGLES: ln BLO ELI ci Hage Bhs ile

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 87-6592 Filed

Jan 19 1988

James Calvin Mitchell,

Plaintiff - Appellant,

Vv.

James Martin, etc., et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District

of North Carolina, at Raleigh. W. Earl Britt, District Judge.

Upon consideration of the appellees’ motion for an exten-

sion of time until January 14, 1988 in which to file their petition

for rehearing.

IT IS ORDERED that the motion is granted.

For the Court

JOHN M. GREACEN

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-6592 FILED

Feb. 29 1988

James Calvin Mitchell

Plaintiff-Appellant,

Vv.

James Martin, Governor; Nathan

Rice; Bobby Watson; Bob Seymore,

Defendants-Appellees.

On Petition for Rehearing

Upon consideration of the appellees’ petition for rehear-

ing,

ITIS ORDERED that the petition for rehearing is granted

and this case is set down for formal briefing and oral argument.

Entered at the direction of Judge Chapman, with the

concurrence of Judge Russell and Judge Phillips.

For the Court

JOHN M. GREACEN __

CLERK

:

;

4

4

5

(UNPUBLISHED)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-6592

JAMES CALVIN MITCHELL,

Plaintiff-Appellant

Vv.

JAMES MARTIN, Governor:

NATHAN RICE; BOBBY WATSON:

BOB SEYMORE,

Defendants-Appellees,

Appeal from the United States District Court for the Eastern District

of North Carolina, at Raleigh. W. Earl Britt, Chief District Judge.

(C/A No. 86-235-CRT)

Argued: October ‘, 1988 Decided: January 12, 1989

Before RUSSELL, PHILLIPS, and CHAPMAN , Circuit Judges

Mack Sperling (BROOKS, PIERCE, MCLENDON,

HUMPHREY & LEONARD on brief) for Appellant. Sylvia

Hargett Thibaut, Assistant Attorney General (Lacy H. Thomburg,

Attomey General; David Parker, Associate Attorney General on

brief) for Appellee.

A35

PER CURIAM:

James Calvin Mitchell, a North Carolina inmate, brought

this 42 U.S.C. § 1983 action for damages against the Governor

of North Carolina, the Warden of Central Prison, the Associate

Warden, and the Prison Program Director, alleging that actions

taken by the defendants while he was incarcerated amounted to

violation of his Fourteenth and Eighth Amendment rights. Sum-

mary judgment was granted in favor of the defendants. Upon

appeal, this Court affirmed in part, vacated in part, and remanded

the claim of the plaintiff that the defendants had violated his

Eighth Amendment rights in imposing restrictions on his right to

exercise.

Thereafter, the defendants-appellees filed a petition for

rehearing, contending that this court should rehear its decision to

remand plaintiff’s claim regarding denial of exercise and outdoor

activity, and that the decision was in conflict with decisions of

the Supreme Court and of this Circuit. The petition for rehearing

was granted and the case was set down for formal briefing and

oral argument.

For the reasons stated in our previous opinion! we order

that the entry of summary judgment on plaintiff’s claim of denial

of exercise and outdoor activity be vacated, and that the case be

James Calvin Mitchell v. James Martin, et al., No. 87-6592 (4th Cir.),

December 17, 1987, unpublished).

2

3

e

nd

:

-

-

3

:

A36

remanded to the District Court for the development of additional

facts on this issue, particularly whether the plaintiff offered any

proof of injury, with an opportunity to both parties to present any

additional evidence they may desire.

REVERSED IN PART

and

A37

IN THE UNITED STATES DISTRICT COURT

FOR THF EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

JAMES C. MITCHELL,

)

)

Plaintiff, )

)

v. ) 86-235-CRT

)

GOVERNOR JAMES MARTIN, )

et al., )

)

Defendants. )

SUPPLEMENTAL AFFIDAVIT

I, BOBBY R. WATSON, being first duly sworn, do

depose and say that:

I am employed by the North Carolina Department of

Correction, Division of Prisons, as the Associate Warden for

Operations at Central Prison in Raleigh, North Carolina.

Central Prison houses approximately one thousand

(1000) of the most violent and dangerous inmates in the North

Carolina prison system. Under the classification system in effect

at the time of the events in this matter, inmate James C. Mitchell

was housed at Central Prison in maximum custody, assigned to

intensive management. The policy providing for assignment to

intensive management, codified as 5 NCAC 2C .0401 (now

revised and renamed simply "maximum custody", see i.e.

5 NCAC 2C .0401 et seq.), defined the function of intensive

management as "isolat[ing] inmates that pose an imminent threat

to the life or health of other inmates or the staff of the unit or

A38

institution involved." Thus, this assignment for inmate Mitchell

meant that his presence in the general population was believed to

pose a clear and present danger to the physical well-being of other

inmates or members of the staff.

Departmental policy, codified at 5 NCAC 2C .0303(d),

provides that inmates who are assigned to intensive management

(now known as maximum custody) may be further restricted as

to their outside cell activities "[iJn any instance where an inmate

has seriously assaulted or threatened to assault staff or other

inmates if allowed outside the cell...." The first such restriction

is that the inmate only be allowed outside his cell while in security

restraints (hand and leg cuffs). If the use of these restraints fails

to resolve the threatening and dangerous behavior, further restric-

tions :nay be imposed, including a restriction which only allows

the inmate to leave his cell, while handcuffed and legcuffed, to

Shower. The inmate is given notice of the recommendation that

such restrictions be applied and appears before a committee for

their approval or disapproval of the recommended restrictions.

I made recommendations that inmate Mitchell be

restricted to his cell, except for showers, on two occasions as a

result of the clear and present danger I perceived him to represent

to both staff and inmates. Copies of those recommendations are

attached to my original affidavit, marked as Exhibits D and K.

Inmate Mitchell was given notice of these recommendations.

Copies of the notices are attached to the affidavit originally

submitted by Mr. R. B. Seymour, Program Director for Clas-

sification at Central Prison, and marked as Exhibits A and H.

Once I have made recommendations for further restric-

tions for maximum custody inmates, and those recommendations

have been approved and are in place, I regularly review such an

inmate’s behavior in order that I can recommend the removal of

these restrictions as soon as I believe they are no longer necessary.

A39

I did so in inmate Mitchell’s case. I met with my shift com-

manders at least once a month and discussed with them the

restrictions on inmate Mitchell, as well as the restrictions on all

other inmates in the maximum security area. I discussed the

restricted inmate’s behavior, his disciplinary violations, and all

other relevant matters, as well as sought and received recommen-

dations from the shift commanders. When all these factors were

taken into consideration, and indicated removal of the restric-

tions, I so recommended. Copies of the recommendations I made

requesting removal of inmate Mitchell’s restrictions are attached

to my original affidavit and marked as Exhibits I and L (see also

Exhibit J).

In summary, inmate Mitchell was, and still may be, a very

violent and assaultive, as well as unpredictable, inmate. His

convictions are all for very violent crimes, including murder,

armed robbery and assault with a deadly weapon with intent to

kill resulting in serious injury. His sentences total seventy (70)

years. He has incurred over seventy-six (76) prison rule infrac-

tions, many of which were assaultive in nature. See Exhibit A

attached to Nathan Rice's original affidavit. Mitchell has at-

tempted to escape by seizing a .357 magnum pistol from a Wake

County Deputy Sheriff he overpowered on December 13, 1983

while appearing in the Wake County Courthouse. It appears this

inmate believed he simply had nothing to lose by being as

assaultive as possible. The only way to control him, in the

professional opinion of prison officials, including myself, was

through the use of restrictions on his out-of-cell activities.

Departmental policy provides for just such restrictions and, in

this case, the restrictions worked, as demonstrated by inmate

Mitchell’s eventual promotion out of the restrictions. Moreover,

no further staff nor inmates were injured subsequent to imposition

of the restrictions, which was the ultimate reason for the restric-

tions. Further, Mitchell never complained to me, or to anyone

else to my knowledge, that the restrictions were adversely affect-

aes

aa 1A apna ped CM <f EEN ee tbiAd Soest at

TO SE Pe Bic

A40

ing his health. I have attached hereto copies of all the grievances

filed by Mitchell during the times he was restricted to his cell,

marked as Exhibits Z-1 through Z-7. A review of those grievan-

ces reveals not only that Mitchell made no complaint about his

health as a result of the restrictions, but also that he exhibited a

very hostile and assaultive attitude. See especially Exhibit Z-6;

see also Merkel affidavit and medical records attached thereto.

I have also attached to this affidavit a copy of a

departmental manual about exercise marked as Exhibit Y, which

is distributed to segregated inmates at Central Prison. This

particular version has been given to segregated inmates since the

first part of 1986. I believe a previous version was distributed in

1980, but I have been unable to locate a copy of it. At any rate,

a review of this manual reveals that an inmate who is restricted

to his cell is not deprived of exercise but may in fact carry out

extensive exercise. The maximum security cells, where Mitchell

was housed, contain sixty-seven (67) square feet of space (ap-

proximately 7 feet x 9 feet). Not only is there sufficient room for

exercise therein in my opinion, but this Court held in a previous

opinion that an inmate could exercise sufficiently under such

constraints. See Memorandum and Recommendation, at pp. 4-6,

in Dizor v. Creecy, et al., No. 87-800-CRT (February 2,

1989)(copy attached); see also Hollingsworth, et al. v. Stephen-

son, et al., No. 84-6688 (4th Cir. November 6, 1985)(copy

attached). Thus, the restrictions placed on Mitchell did not

deprive him of exercise opportunities.

Since this complaint has been filed, it has come to my

attention that my recommendations, and the approval of those

recommendations by the Director’s Classification Committee

(previously the Director’s Review Sub-committee) were not al-

ways followed by the staff actually assigned to the maximum

custody cellblocks. See, i.e., affidavits of Correctional Sergeant

Tennyson R. Stewart, Correctional Sergeant Ellis H. Langdon,

A41

Correctional Officer D.W. Jones, Correctional Officer Antonio

Caldwell, Correctional Officer L.O. West, Correctional Officer

Emest B. Smith, Correctional Officer Henry P. Royster, Correc-

tional Officer Billy J. Blackmon, Correctional Officer K.D.

Wilkins, and Correctional Officer Douglas L. Williams. My only

response to this failure to follow the restrictions is that the staff

was very lucky that no assaultive incident occurred. If I had been

aware at the time that the restrictions were not being followed,

the staff would have been subject to disciplinary measures.

Finally, I personally do not have the authority to place

restrictions on an inmate’s out-of-cell activities. I only have the

authority to recommend those restrictions. Out-of-cell restric-

tions can only be imposed by the Director’s Classification Com-

mittee (formerly the Director’s Review Sub-committee). 5

NCAC 2 C .0303(d)(1)(A) et seq.

In summary, I deny that I have ever intentionally violated

inmate Mitchell’s constitutional rights.

This the 19 day of April, 1989.

/s/ BOBBY R. WATSON ___

Affiant

Sworn to and subscribed before me this

19 day of April, 1989.

/s/ James Ray Moody

Notary Public

My Commission Expires: 4-25-90

A42

EXHIBIT Z-1

DC-410 GRIEVANCE FORM

Rev. 10/83

? NAME /s/ Karim Abdul Akbar

i LOCATION AU-205

3 /o/_LR. Jones 1-18-85 2:15 p.m. DATE 1-18-85TIME 1:30

Receiving Officer's Signature Date & Time

F A. GRIEVANCE STATEMENT

4 (Attach additional pages if necessary)

: /s/Katim Abdul Akbar

: Inmate's Signature

: B. EVALUATION

3 (Attach additional pages if necessary) (To be completed within 24 hours)

: My investigation has revealed that this grievance has been

; answered previously and that it was determined that no change

; would be made in the operations in this area.

: pn.

4 Investigator’s Signature Date & Time

C. ACTION RECOMMENDED/TAKEN

(To be completed within 5 days)

i The issues pointed out in this Grievance has been addressed

i previously. policy states that the lights will be dimmed at 11:00

: p-m. and all activities will cease. This has been done in accordance

7 with policy. The T.V.'s are tumed off at 11:00 p.m. in accordance

‘ with policy. No further action recommended.

é /s/

; Superintendent's Signature & Date

i D. __AGREE X APPEAL TO AREA BOARD _/s/J.C.M. 1-22-85

i Inmate’s Signature & Date

.

rv

BE. GRIEVANCE REVIEW BOARD RECOMMENDATION

(AREA/INSTITUTIONAL LEVEL)

(To be completed within 15 days)

This grievance submitted by James C. Mitchell has been reviewed.

Refer vo both Section B and C for evaluation and official response

by staff. No further action recommended.

/s/ Capt. E.G, Chamblee KH. 2/1/85

Member Membe rArea Administrator/Inst. Head & Date

F. ___ AGREE WITH ACTION TAKEN

_X APPEAL TO INMATE GRIEVANCE COMMISSION

(el L.C.M, 1-25-85

Inmate's Signature & Date

I filed a grievance as to why these cell lights has got to be

burning bright in the daytime. And that question wasn’t

answered I also asked why is the T.V. cut off at 3 min till 11:00,

2 min till 11:00 ect. and the cell lights are not cut off until 11:30

to 12:00. Now since you state that its so you can see. Then why

do you officals stand in front of inmates cells and shine their

flashlight in their face until they wake up. And that be around 2

to 4:00. And you lied too. Yeah you feed us at 5:30 sometime.

But you cut these lights on at 5:00 and open these trap doors at

5:00 to 5:15. You don’t sleep in your house with your lights on

dim or bright so why you expect us to sleep with lights on dim

and bright. This whole system is full of lies and evil genocidial

ways. You're all a bunch of people that build your ego by being

able to give another MAN orders. YOU ALL AIN’T NOTHING

But LIARS. YOU’RE the ONES that should be in PRISON. You

people ain’t NOTHING but RACIST Bent on GENOCIDE.

A45

EXHIBIT Z-2

DC-410 GRIEVANCE FORM

Rev. 10/83

M4590-383-21157-0.S.

NAME /s/ Karim Abdul Akbar

A.K.A. James C. Mitchell 21157-0S

LOCATION AU-205

/s/ B.D. Moore 2-27-85 5:00 p.m \DATE.2:27-85 TIME. 5:00

Receiving Officer's Signature Date & Time

A. GRIEVANCE STATEMENT

(Attach additional pages if necessary)

See attached pages | and 2

/s/ Karim Abdul Akbar

A.K.A. James C. Mitchell

Inmate's Signature

B. EVALUATION (Attach additional pages if necessary)

(To be completed within 24 hours)

See attached memo A85-2.44 dated 2-28-85. No further action

necessary.

/s/ James E. Taylor 10:15 a.m. 3-04-

85

Investigator’s Signature Date & Time

C. ACTION RECOMMENDED/TAKEN

(To be completed within 5 days)

See attached. No further action recommended.

/s/

Superintendent's Signature & Date

D _WAGREE X APPEAL TO AREA BOARD /s/J.C,Mitchell 3-5-85

Inmate’s Signature & Date

eo

Sei a RAs AT al Oia tlhe ONS eee Loe

AT RO ae Sas Se NR Ts 3 GIR

rR ale ) i> toe”

:

A46

BE. GRIEVANCE REVIEW BOARD RECOMMENDATION (AREA/INSTITU-

TIONAL LEVEL)

(To be completed within 15 days)

This grievance submitted by James C. Mitchell has been reviewed.

Refer to attached statement from staff for an official response.

Purther action unnecessary.

/*/L4. Chamblee KHIR8S

Member Member Area Administrator/inst. Head & Date

F. AGREE WITH ACTION TAKEN

X APPEAL TO INMATE GRIEVANCE COMMISSION

/s/ Kasi .

Inmate’s Signature & Date

revi *

I demand a reasonable explaination as to why I am being

discriminated against. I was charged with stabbing two inmates

and was given | to 30 days in disiplinary segregation and loss of

30 days goodtime. I was also placed in Full Chain Restraints and

given 30 years in Wake County Court. I stayed in F.C.R. (Full

Chain Restraints) for 1 year. And 6 or 7 months of that year I

wasn’t allowed outside my cell other Than visitation or meet one

of these prison boards. Now why all this punishment? Another

inmate here at Central Prison "killed" a Black inmate name James

Harris in COLD BLOOD. The inmate that killed James Harris

name is Mark Vechnak who is Caucasain was "Not" placed in

Full Chain Restraints nor was Mark Vechnak taken to Wake

County Court and tried for premeditated first degree murder, nor

was Mark Vechnak placed in disciplinary segregation, nor was

Mark Vechnak placed in one of the Intensive Management Lock-

up Blocks. What I want to know is why am I being placed in

F.C.R. just for taking a mop wringer and hitting the flex glass

window of the Control Booth. Now if I am going to be placed in

F.C.R. for taking a mop wringer to the Flex Glass of the Control

Booth window, then I have no other alternative but to file a U.S.C.

1983 Form and 4 Class Action Suite against this instivution and

its Commanders and Personel. Because this what YOU ALL are

doing to me is an ACT of Racial Discrimination.

N =

i OFFICE MEMORANDUM

TO: R.B. Seymour, Program Director I DATE: 2-28-85

FROM: /s/ Bobby R. Watson, Associate Warden for Operations

RE: Inmate James C. Mitchell 21157-OS -

In July, 1983 the DCC restricted the out of cell activities and Law Library

privileges of James C. Mitchell due to his assaultive behavior. These

restrictions remained in effect until February, 1984 at which time they were

removed as a result of his improved conduct.

As of this date, I have reinstated these special restrictions pending a referral

to you and the DCC. On February 26, 1985, inmate Mitchell was in the

dayroom when he refused instructions by the officer to go back to his cell.

Mitchell picked up a mop wringer and started beating on the window to the

control station. This is the same type action that resulted in the special

restrictions being placed on him back in July, 1983. It is my recommenda-

tion that the DCC approve a restriction of his Law Library privileges and

all other out of cell activities with the exception of a shower each day after

which he will be immediately retumed to his cell. The shower will take

Place with Mitchell in full restraints.

Your prompt attention to this request is appreciated.

A49

EXHIBIT Z-3

DC-410 GRIEVANCE FORM

Rev. 10/83

M4590-383-21157-O.S.

- oo NAMB /s/ Karim Abdul Akbar

A.K.A. James C. Mitchell 21157-0S

LOCATION_AU-205 =

/s/ TL. Porter DATE _2-28-85 . TIME __

Receiving Officer's Signature Date & Time

A. GRIEVANCE STATEMENT

(Attach additional pages if necessary)

See attached page 1

/s/ Kasim Abdul Akbar ..__

A.K.A. James C. Mitchell

Inmate's Signature

B. EVALUATION (Attach additional pages if necessary)

(To be completed within 24 hours)

See attached memo A85-2.44 dated 2-28-85. No further action

necessary.

/s/ James BE, Taylor 10:15 a.m, 3-04-

85

Investigator’s Signature Date & Time

C. ACTION RECOMMENDED/TAKEN

(To be completed within 5 days)

See attached. No further action recommended.

/s/ Capt. E.G, Chamblee ._

Superintendent's Signature & Date

D. AGREE X APPEALTO AREABOARD /s/ LC,Mitchell 3-5-85

Inmate's Signature & Date

// Lt. Carroll __ '

KH.

Member Member have Adaieionae oe Hised & Beas

F AGREE WITH ACTION TAKEN

—X_APPEAL TO INMATE GRIEVANCE COMMISSION

/e/ -

Inmate's Signature & Date

AS1

On tuesday February 26, 1985 I damaged state property.

As a result I do "NOT" have shower, dayroom or recreation

privileges and have been placed in Special Restraints. I have

"NOT" threatened to assault any staff member or prisoner, nor

did I assault such persons, nor did I attempt to assault such

persons. According to administrative rules and policies 5 NCAC

2C Classification 0303 Conditions of Confinement I am being

UNLAWFULLY RESTRAINED.

me" = OFFICE MEMORANDUM

TO: R.B. Seymour, Program Director I DATE: 2-28-85

FROM: Bobby R. Watson, Associate Warden for Operations

RE: Inmate James C. Mitche!l 21157-OS -

In July, 1983 the DCC restricted the out of cell activities and Law Library

Privileges of James C. Mitchell due to his assaultive behavior. These

restrictions remained in effect until February, 1984 at which time they were

‘ removed as a result of his improved conduct.

Control station. This is the same type action that resulted in the special

restrictions being placed on him back in July, 1983. It is my recommenda-

ce: Deputy Warden Dixon

AS3

EXHIBIT Z-4

DC-410 GRIEVANCE FORM

Rev. 10/83

M4590-383-21157-O.S.

NAME /s/ Karim Abdul Akbar _

A.K.A. James C. Mitchell 21157-0S

LOCATION AU-205

/s/ TL. Porter 2-28-85 7:27am... DATE 2-28-85 TIME 7:30am.

Receiving Officer's Signature Date & Time

A. GRIEVANCE STATEMENT

(Attach additional pages if necessary)

See attached page 1

/s/ Karim Abdul Akbar

A.K.A. James C, Mitchell .._

Inmate’s Signature

B. EVALUATION (Attach additional pages if necessary)

(To be completed within 24 hours)

See attached memo A85-2.44 dated 2-28-85. No further action

necessary.

/s/ Tames E. Taylor 10:15 a.m. 3-04-

85

Investigator’s Signature Date & Time

C. ACTION RECOMMENDED/TAKEN

(To be completed within 5 days)

See attached. No further action.

/s/ Capt. E.G. Chamblee

Superintendent's Signature & Date

D. _ AGREE X APPEAL TO AREA BOARD

/s/ LC. Mitchell 3-5-85

Inmate’s Signature & Date

.

Andee inane nt we

Sabla aii,

E. GRIEVANCE REVIEW BOARD RECOMMENDATION

(AREA/INSTITUTIONAL LEVEL)

(To be completed within 15 days)

This grievance submitted by James C. Mitchell has been reviewed.

Refer to attached statement from staff for an official response.

Purther action unnecessary.

/s/ Lt. Cosroll _ KH. RBS _

Member Member Area Administrator/Inst. Head & Date

F __AGREE WITH ACTION TAKEN

~X_APPEAL TO INMATE GRIEVANCE COMMISSION

/s/ Karim Abdul Akbar 3-7-85

Inmate's Signature & Date

ASS

On tuesday February 26, 1985 I damaged state property.

As a result I do "NOT" have shower, dayroom or recreation

privileges and have been placed in Special Restraints. I have

"NOT" threatened to assault any staff member or prisoner, nor

did I assault such persons, nor did I attempt to assault such

persons. According to administrative rules and policies 5 NCAC

2C Classification 0303 Conditions of Confinement I am being

UNLAWFULLY RESTRAINED.

oO eat

OPPO ATM. Dhow ns ow 04 \ *

OFFICE MEMORANDUM

Ss

TO: RB. Seymour, Program Director I DATE: 2-28-85

FROM: /s/ Bobby R. Watson, Associate Warden for Operations

RE: Inmate James C. Mitchell 21157-OS -

AS7

EXHIBIT Z-5

DC-410 GRiEVANCE FORM

Rev. 10/83

M4590-383-21157-0.S.

NAME /s/ Karim Abdul Akbar

LOCATION AU-205

/s/ T.L. Poster DATE ___2-28-85 TIME _

Receiving Officer's Signature Date & Time

A. GRIEVANCE STATEMENT

(Attach additional pages if necessary)

See attached page |

/s/ Karim Abdul Akbar

A.K.A. James C. Mitchell

Inmate's Signature

B. EVALUATION (Attach additional pages if necessary)

(To be completed within 24 hours)

See attached memo A85-2.44 dated 2-28-85.

/s/ James E, Taylor/3-5-95/9;00 a.m.

. Investigator's Signature Date & Time

C. ACTION RECOMMENDED/TAKEN .

(To be completed within 5 days)

See attached. No further action.

/s/ Capt. E.G. Chamblee

Superintendent's Signature & Date

D. __ AGREE _X_ APPEAL TO AREA BOARD

/s/ L.C,Mitchell 3-5-85

Inmate's Signature & Date

Ft) agli

AS58

(To be completed within 15 days)

This grievance submitted by James C. Mitchell has been reviewed.

Refer to attached statement from staff for an official response.

Purther action unnecessary.

bef. KH.

—- Member Area Advaelowetoefiaat Had & Dom

F AGREE WITH ACTION TAKEN

X_APPEAL TO INMATE GRIEVANCE COMMISSION

/s/ Kari : eis

Inmate's Signature & Date

AS9

On tuesday February 26, 1985 1 damaged state property.

As a result I do "NOT" have shower, dayroom or recreation

privileges and have been placed in Special Restraints. I have

"NOT" threatened to assault any staff member or prisoner, nor

did I assault such persons, nor did I attempt to assault such

persons. According to administrative rules and poiicies 5 NCAC

2C Classification 0303 Conditions of Confinement I am being

UNLAWFULLY RESTRAINED.

A60

o

owe" OFFICE MEMORANDUM

TO: R.B. Seymour, Program Director I DATE: 2-28-85

FROM:Bobby R. Watson, Associate Warden for Operations

RE: Inmate James C. Mitchell 21157-OS -

Referral for Special Restrictions

In July, 1983 the DCC restricted the out of cell activities and Law Library

privileges of James C. Mitchell due to his assaultive behavior. These

restrictions remained in effect until February, 1984 at which time they were

removed as a result of his improved conduct.

As of this date, I have reinstated these special restrictions pending a referral

to you and the DCC. On February 26, 1985, inmate Mitchell was in the

dayroom when he refused instructions by'the office to go back to his cell.

Mitchell picked up a mop wringer and started beating on the window to the

control station. This is the same type action’ that resulted in the special

restrictions being placed on him back in July, 1983. It is my recommenda-

tion that the DCC approve a restriction of his Law Library privileges and

all other out of cell activities with the exception of a shower each day after

which he will be immediately retumed to his cell. The shower will take

place with Mitchell in full restraints. .

Your prompt attention to this request is appreciated.

ce: Deputy Warden Dixon

Associate Warden Harris

Capt. Chamblee

Inmate Record

file

EXHIBIT Z-6

DC-410 GRIEVANCE FORM

Rev. 10/83

‘ M4590-383-21157-0.S.

NAME /s/ Karim Abdul Akbar

AKA. J, C, Mitchell 21157-0S

LOCATION AU-205 ___

/s/ Lt. Nobles 12:08 a.m. 10-15-85 oo... DATE 10-15-85 TIME 12:08

Receiving Officer's Signature Date & Time

A. GRIEVANCE STATEMENT

(Attach additional pages if necessary)

I've been in chains since february, 1985, due to the fact that I hit

the Plexis Glass (cont page 1,2,3,4)

/s/ LC, Mitchell

Inmate's Signature

B. EVALUATION (Attach additional pages if necessary)

(To be completed within 24 hours)

You were placed in Full Restraints due to your assaultive and

aggressive behavior. Your case is reviewed every six months by

the board and periodically by Associate Warden Watson.

/s/ Sgt. (illegible) 10-15-85 1:00 p.m.

. Investigator's Signature Date & Time

C. ACTION RECOMMENDED/TAKEN

(To be completed within 5 days)

Agree with Section B.

/s/ KE. Parker, Lt, 10-15-82 1:00

pum. .

Superintendent's Signature & Bate

D. _AGREE X APPEAL TO AREA BOARD

/s/ i = ‘

Inmate's Signature & Date

Wi Se,

E. GRIEVANCE REVIEW BOARD RECOMMENDATION

(AREA/INSTITUTIONAL LEVEL)

(To be completed within 15 days)

The grievance submitted by inmate Mitchell has been reviewed by

the Board, refer to Section B for official staff response. No further

action recommended.

/s/ Li.Camoll K.H 102585

Member Member Area Administrator/Inst. Head & Date

FP. AGREE WITH ACTION TAKEN

X_ APPEAL TO INMATE GRIEVANCE COMMISSION

LC. Mitchell 10-21-85

Inmate's Signature & Date

A63

window with a mop wringer. I’ve met different boards. And each time,

their excuse for keeping me in chains is because of my behavior when I

went to Court in Wake County, and It was said that I attacked a Deputy

Sheriff and took his .357 magnum service revolver. And set fire to Wake

County Jail. Now I’ve met Mr. Seymour’s board twice and met the

D.R.S.C. Board twice. And this last time I met the D.R.S.C. Board, Mr.

Seymour was a member of the board. I know there is a conspiracy against

me. Because other inmates have assaulted inmates and been placed in

chains and out of chain within the next 30 to 60 days. And I know for a

fact some of their records are worser than mine. Because I been knowing

them for years. But yet in still I’m being held in chains. Only to come out

of my Cell for a fifteen minute shower (which I refuse to take in chains. I

know its a conspiracy against me. Because an INMATE that I’ve been

knowing for years and a few others that I just met told me that 3 sargents

and 2 Lt. (whose names I won't mention offered them $100 (ONE Hundred

Dollars and a SHANK if they would KILL me when they open my door for

a shower (while I’m in chains). IF any fool stab or kill me thats how he got

to do it. Or catch me when I’m sleep. These police set James Harris up and

got him killed. And they set Willie Grandford up and almost got him killed.

They set Billy Clark up and almost got him killed. Now they’re trying to

set me up. I’m a MAN and a WARRIOR. I'll walk through the shadow of

DEATH (without chains on) and fear no evil. Because ALLAH will guide

me in battle. But I won’t walk in chains, knowing I have no way possible

to defend myself. And I won’t shower in chains. I ain’t about to rely on no

police to save me from getting stabbed up. Not when I know they'll stand

back and watch, and have set the whole thing up. They can’t set me up

when I’m NOT in chains. Because they know it will be a blood war. I

know how to use a shank and I know how to fight with my hands and feet

as lethal weapons. I’m not registered, but I know what I can do. So I want

to know why I'm being kept in chains other than trying to be set up. I’m

NOT going to WALK or SHOWER in chains. If you want me dead. Then

let me out of chains. But remember, it take A__ to get A__ and I ain’t run-

ning from Sh__. I never have, and never will. If you want me dead so

Da_n bad. Then let me out of chains and give your flunkies knives and

shanks and send them my oh, NO, I’m not going to attack one da_n soul

when I get out of chain. But best not no Da_n soul attack me if he wants to

live. Because I'll die for what is mine. And this body is mine for my soul

to live in until judgement day. Or until A’.AH says I have to give this

body up so my soul can rest until its judgement day. So come on with it.

But you better not slip. Because I’m not running and hiding. I don’t fear

a ee eee ity

man I fear ALLAH. Man can only hurt the body. ALLAH can hurt both

soul and body.

Karim Abdul Akbar

A.K.A./James Calvin Mitichell

21157-O.S.

ALLAH-U AKBAR

A65

EXHIBIT Z-7

AU-202

DC-410 | GRIEVANCE FORM

Rev. 10/83 ,

M4590-383-21157-0.S. |

NAME /s/ James C.Mitchelll 21157-

om |

LOCATION CENTRAL PRISON

/s/ LE. Jeffrey 12-24-85 11:30 DATE 12-24-85 TIME 10:30

Receiving Officer's Signature Date & Time

A. GRIEVANCE STATEMENT

(Attach additional pages if necessary)

I would like to know why these guys in full chain restraint doors

are being see attached pages (1,2,3,4)

/s/Jomes Calvin Mitchell _

Inmate's Signature

B. EVALUATION (Attach additional pages if necessary)

(To be completed within 24 hours)

The food passage doors for the full restraint inmates are not locked

at all times. Your food passage door is locked because of a

memorandum wrote by Lt. Polk on second shift 11-14-85.

/s/ Sgt. RS. Walker 12-27-85 11:15

a...

Investigator's Signature Date & Time

C. ACTION RECOMMENDED/TAKEN

(To be completed within 5 days)

See Section B.

/s/ :

Superintendent's Signature & Date

D. _AGREE X APPEAL TO AREA BOARD

/s/ LC.Mitchell 12-31-85

Inmate's Signature & Date

A66

E. GRIEVANCE REVIEW BOARD RECOMMENDATION

(AREA/INSTITUTIONAL LEVEL)

(To be completed within 15 days)

Inmate refused to complete sec D - No further action. Your

demonstrated behavior has required that the full restraint only be

continued.

/s/ Lt. Cacroll K.H 1/686

Member Member Area Administrator/Inst. Head & Date

F. AGREE WITH ACTION TAKEN

~X APPEAL TO INMATE GRIEVANCE COMMISSION

LC, Mitchell 10-21-85

Inmate's Signature & Date

A67

moved to this cell at about 7:40 p.m. and due to the amount of

personal property I had, It took me until 8:00 to move all my

personal belongings from segregation (AL-215) to regular lock-

up (AU-202). And the two officers that escorted me while

moving didn’t say NOTHING TO ME about the Full Chain

Restraint Inmates trap doors being locked at all times. Third shift

locked my trap door after breakfast (5:30 or 5:45 a.m.) and told

me the Sgt. said my trap door and all Full Chain Restraint Inmates

Door are to stay locked at all times. And when Officer Oliver

Massey came around passing out shaving razors he told me and

the rest of the inmates in Full Chain Restraints the same thing.

BUT he also added that EVER SINCE HE WAS BEEN WORK.

ING HERE ALL Full Chain Restraints Inmates Trap Doors has

always been kept locked. I know that to be a lie. So I questioned

Officer Massey. His reply was, and I quote it. Write a grievance

I’m only doing my damn job. Well I asked him to call the Sgt.

down here and he told me he would go talk to the Sgt. I asked

him what Sgt. is working and he said Sgt. Murphy. I asked

Massey if he would tell the Sgt. to come down here and he said

again. He would talk to Sgt. Murphy. I know who Sgt. Murphy

is I think. But I’ve been in this prison ever since it opened and I

don’t ever recall hearing Sgt. Murphy being the Sgt. in Charge

of A-Block. Its always has been Sgt. Hopskins, Sgt. Barefoot,

Sgt. Hill, Lt. Fogg (any regular officers as active sgt.) Azyway

I asked Officer W. Johnson the same thing about the trap doors.

And he related to me through another inmate that he can’t call

the Capt or Lt. but said that Lt. Harris told all the OFFICERS in

LINE-UP this moming that ALL FULL CHAIN RESTRAINTS

Trap door will remain locked. He also told me that the Sgt. and

Lt. is checking on it. And I just ask Officer Massey what the Sgt.

Said and he told me that he talked to the Sgt. and the Sgt. and Lt.

is checking on it. Well they been checking on it since 7:35 a.m.

this moming and its about 12:00 and they’re still checking on it.

And the Sgt. Lt. Capt has not made their rounds for the day. I’m

not going to fall for no trap by refusing to move my leg or arm

so he can lock my trap door. Because thats an unnecessary

write-up. And they’ll write me up for disobeying a direct order.

As always when they write someone up. So what is the out come

of these trap doors of Full Chain Restraint Inmates.

Respectfully Written

Karim Abdul Akbar

A.K.A./James Calvin Mitchell

M4690-383-21157-OS

December 24, 1985

A69

EXHIBIT Y

CATED ae i Serta

North Carolina Department

of Correction

Manual On Exercising

te) BO PA Keanna Se chats Sie

PE a atta es AL REN RE Rea nt ons ite 0 Be Ua lee BM ie ie Sihane e R sll

Central Prison

A70

Manual on Exercising

For The Incarcerated

CENTRAL PRISON HOSPITAL

Prepared as a patient education service by

the In-Service Education Department of C.P.

The Need for Exercise and Physical

POU enhancsnncdortecdsentdccssanscéevseveses 1

PED sk ideetbusebaeudeoaclNcekko he chneeeebans 1

Exercise and Physical Fitness Programs ...................4. 2

Guidelines and Recommendations For

NE Mg eho ais oe eed ducked vevnackeaues bats 2

PRE SUD kod vena nceues bevteeeeuassean wun 3

Pe SY IN, 6 ok ocn'v0 ceesecesecdandeeeveased 6

TTT eee 6

ee PEUST OTIS TT ET TT epee ee ere TT 13

C. Warmown Bassciess . 0.0.0... cc nsec ceces 20

ROTTEN CETTE ee ET EE PTO Ey Pe ee” 21

| ee eee ee rn errr rr 22

ot PVTTTT TET TTT re rr eer ere 23

ee a ee ee a ee ee

A72

Physical activity for an inmate is extremely important to help reduce the weakening

of body and mind which would otherwise occur in the idle institutional environ-

° PHYSICAL FITNESS

The physical elements that are basic for adult fitness are muscular strength and en-

durance, flexibility and cardiorespiratory endurance.

Muscular Strength

Muscular strength is the ability of a muscle to exert a single, maximal force against

a resistance. Lifting the heaviest weight or barbell you can handle at one time is an

Placed on the muscles involved in generating the force.

Muscular endurance is the ability of a muscle to exert force repeatedly against a

resistance or to perform work continually. Lifting a weight several times or doing a

maximum number of sit-ups, pull-ups or push-ups are examples of muscular en-

durance. The endurance of muscles is dependent upon their strength, condition, and

the number of repetitions Placed on the muscles involved.

beginner. The length and condition of the muscles, ligaments, and tendons largely

determine the amount of movement possible at each joint.

A73

Cardiorespiratory endurance is the ability to continue strenuous activity involving large

muscle groups for long periods of time. In essence, it is the ability of the heart and

lungs to supply oxygen and nutrients to your muscles and to remove carbon dioxide

and other waste products. Three of the best examples of cardiorespiratory activities

are jogging, swimming and cycling, when done continuously for an extended period

of time. Cardiorespiratory endurance is the most essential physical component in adult

fitness.

EXERCISE AND PHYSICAL FITNESS

PROGRAMS

One of the most popular and effective programs for developing muscular strength and

endurance is the weight training program (use of barbells). Many prisons have

developed weight training programs not only because of the value of the program, but

also because of their popularity. Some books are listed in the reference which pertain

to weight training.

An isometrics training program, involving contrection of opposing muscles without

movement, resulting in toning and strengthening of muscles, is more practical and

applicable for a confined person, but it requires more instruction and motivation.

Probably the most effective exercises available would be the traditional calisthenic

program plus various other appropriate exercises. Several adult fitness books are listed

in the references and would make an excellent supplement for the exercises listed in

this monograph.

GUIDELINES AND RECOMMENDATIONS FOR

EXERCISE PROGRAMS

The success of any exercise program depends in great part on the person's following

certain guidelines or rules regarding the frequency, intensity, duration and regularity

of exercising.

Frequency

The minimum number of times that one should exercise is 3 to 5 days a week. Daily

exercising is recommended.

Intensity

It is important to begin with light to moderate efforts; then increase work loads and

progress to higher levels of exercise as your fitness improves over weeks and months.

ee ee eee ae sities

A74

Seantesiie af ates

A daily regular workout time is important so you can better see the effects of the training.

Other guidelines to follow when exercising include:

Warm-up - A gradual warm-up is suggested because sudden strenuous

exercises can cause muscle pulls and injuries to joints.

Workout - The main part of the exercise program is the workout (that

is, the time spent in doing your sequence of exercises).

Warm-Down- A gradual tapering off period following strenuous activity

allows the body to remove excess heat and circulation and

respiration to return to their normal states.

FITNESS TEST AND EVALUATION

Since most jails are not equipped to do compyhensive fitness testing, the fitness test

items selected are based on ease of administration, c »st of equipment and time available.

The following tests have Proven practical and helpful in assessing adults prior to starting

an exercise program.

Equipment

a. mug or mat on which to do sit-ups.

b. clock or watch with sweep second hand

or stop-watch

MW.

The One-Minute Sit-up Test:

The inmate starts by lying on his/her back, knees bent at a 90° angle and heels flat on

the floor. A partner holds the feet down. The inmate then performs as many correct

sit-ups (see Figure 1) as possible in one minute. In the up position, the inmate should

touch the elbows to the knees and then return to a full lying position before starting the

next sit-up. The total number of sit-ups performed in one minute will translate into a

fitness score in the norms table (see Appendix A). This test indicates the general

strength and endurance of the muscular system, especially the abdominal muscle group,

an area of important concem.

Equipment

a. one yardstick

b. tape or chalk for line.

’

Flexibili

The Bend and Reach Test:

The inmate sits on the floor with legs extended at right angles to a taped or marked line,

as shown in Figure 2. The heels touch the near edge of the line and are about six inches

apart. A yardstick is placed between the legs of the subject and rests on the floor with

i.

the 15 inch mark on the line. The subject slowly reaches forward with both hands as

far as possible and holds the position momentarily (knees remain straight). The

distance reached on the yardstick by the fingertips is recorded and the best of three

trials is the flexibility score to be compared to the norms in the fitness table (see

Appendix A). Prior to actual test administration, the inmate can warm-up slowly by

practicing stretching. Trunk flexion serves as an important measure of hip and back

flexibility and elasticity of the hamstring muscle group.

Equipment

a. 12 inch bench, step, chair or box (preferably 18 inches wide).

b. clock or watch with sweep second hand or stop-watch.

mala

Contionens lias

The Three-Minute Step Test:

The inmate starts hy standing on the floor and in front ofa 12-inch high box, bench,

chair or step, any of which can be used for the step test.

A77

On the signal "begin", the watch is started and one starts stepping on the bench. First

the left foot up, then the right foot up, then the left foot down, then the right foot down

(see Figure 3). (The count is up, up, down, down). This constitutes 4 counts. Step in

cadence at 96 counts per minute or 24 complete step cycles per minute. During the

three-minute test, the inmate will make 72 complete stepping cycles.

Immediately after the three minutes of stepping, the subject sits down. A 60 second

heart rate is counted starting five seconds after completion of stepping. (Heart rate may

best be taken on the carotid artery on the side of the throat by counting the beats for

ten seconds and multiplying by six to get the rate for one minute.) The heart rate count

will give a fitness score to be interpreted with the norms table (see Appendix A).

Bench stepping serves as a measure of heart and lung functioning and is a most

important measure of adult fitness.

BASIC CALISTHENIC PROGRAM

By the process of elimination, the best exercise program for a confined person is built

around a calisthenic program. Calisthenics are the best conditioners when cost of

equipment, facilities, space, time and instruction are considered. Some other con-

ditioners are included besides calisthenics.

Individuals should record the number of minutes spent daily on each type of exercise

(see Appendix B for sample).

A. WARM-UP EXERCISES

Warm-up exercises should begin gently and gradually progress to more vigorous action

as you prepare for the workout.

*For unconditioned persons, the warm-up exercises should

be adequate for the first two to four weeks, then add Level |

of workout.

*For all stretching movements, gradually increase the degree

of stretch with each repetition and be sure to do them slowly

and gently, not abruptly or forcefully.

*Do the exercises in the order listed.

ee ee ee ed

A78

“Je

Jumping Jacks:

Stand with arms at sides. Jump, spreading feet to the side and at the same time swing

the arms overhead; then swing the arms down and

jump back to the starting position.

Use a rhythmical and comfortable count. Repeat 15 times.

Tiunk Twister:

Stand, feet comfortably apart, with arms extended out from the sides, palms down.

Slowly twist to one side as far as you can go, hold for five counts, and repeat on the

other side. Repeat 5 times on each side.

rt

Forward Bend and Reach:

Stand with feet about 18 inches apart, knees slightly bent, arms hanging loosely at the

sides. Bend forward, extend the arms between the legs and gently reach to touch the

ground at about heel level. Hold for 5 counts, and then come up to a standing position.

Repeat 5 times.

A80

Shoulder Stretcher:

Stand with feet comfortably apart, with the arms bent, hands in front of the chest and

the elbows out to the side. Without arching the back, rhythmically thrust the elbows

backwards and retum to starting position. Repeat 10 times.

Shoulder Roll:

Stand with feet comfortably apart, with the fingers of each hand touching the shoulders.

Slowly rotate the elbows in a full circle - forward, up, back, and down. Repeat 5 times,

then reverse the rotation.

A81

-10-

Neck Roll:

Stand with feet comfortably apart, with hands on the hips. Gently roll the head in a

full circle first to one side, then forward, then to the other side, then backward. Repeat

5 times. Reverse the direction for an additional 5 times.

RK

Knee Lifts:

Stand with feet comfortably apart, arms at the sides. Raise one knee to the chest, grasp

and gently pull it to the chest, retum and repeat with cther leg. Keep the back straight.

Repeat 5 times with each leg.

Le

A82

Half Knee Bend:

Stand with feet comfortably apart, hands on hips. Bend the legs to just short of a 90

degree angle (squat), extending the arms forward for balance as you go down, then ;

retum and repeat in a slow moderate pace. Repeat 10 times.

tt

Toe Touches:

Stand with feet together, arms at sides. Keeping the knees slightly bent, lean forward

and gently stretch hands toward the toes or floor. Retum and repeat in a slow rhythm.

(Caution: do not bob or jerk down to toes.) Repeat 10 times.

Ny

A83

-12-

Sitting Stretcher:

Sit on floor, knees extended, your legs spread at approximately a 45 degree angle. Bend

fo:ward slowly at the waist. Reach out to the left and try to touch your head to your

left knee until you feel stretching pain in the back of the leg. Hold this position for 2

or 3 seconds, then return to starting position. Reach out to the right side and do the

same thing. Repeat 5 times to each side. .

Slow Jog:

Stand in place with arms in a running position. Slowly jog in place or in a small circle

for 60 counts or 60 seconds. Count each time the left foot strikes the floor. Begin

slowly and pick up the pace gradually every 15 counts or 15 seconds. Speed can be

increased as conditioning improves.

A84

. PF

Deep Breathing:

Stand with feet comfortably apart. Slowly swing the arms forward and upward, raise

up on the toes and inhale deeply until arms are in an overhead position. Swing the arms

down, drop to the heels and exhale as the arms are returned to the starting position.

Repeat 5 times.

—

This workout uses a set of 12 exercises called the Daily Dozen set of exercises and is

designed to advance the user through three levels of fitness. The Daily Dozen consists

of a set of graduated exercises to be used after the warm-up exercises have prepared

you physically and mentally for the workout. During the first week or two, you may

be physically able to do only the warm-up exercises because of your present condition-

ing. When you feel ready for a complete workout, start with exercise one, Level I, of

the Daily Dozen.

B. WORKOUT

Workouts for this set of exercises include three levels of conditioning. The numbers

in the columns to the right indicate how many times you should repeat the exercise for

that level of fitness.

Work at Level I or the beginning level until your conditioning allows you to complete

all of Level I without undue stress. Then progress to Level I, and finally to Level I.

A85

« She

Toe Touch Series:

There are four standing positions for this

exercise, starting with the feet at shoulder

width, then together, then crossing one

foot over the other and finally reversing

foot positions. Rhythmically and gently

stretch and touch the toes in each of the

four positions. Then retum to the starting

position.

LEVELS

(Of Repetition)

——

5 10 15

Squat Jumps: LEVELS

(Of Repetition)

ae SP

10 20 30

Stand with feet comfortably apart with one foot slightly ahead of the other and put

hands behind head with fingers interlocked. Drop down to a half squat position and

keep back as straight as possible. Jump to upright position with body straight and feet

leaving floor. Reverse position of feet before landing and retum to half squat position.

mW

ee Te

A86

-15.

LEVELS

(Of Repetition)

10 20 W

Place hands on the floor at shoulder width and

lean forward with one leg well up under the

chest and the other fully extended to the rear.

Shift leg positions in a two count thythm.

Push-ups: 10 15 2

(Men) Lie face down on floor with hands

directly under the shoulder joints, fingers

pointing straight ahead. Extend the arms

and raise the body in a straight line from

head to heels to a fully extended position

supported by the arms and toes. Lower the

body in a straight line by bending the arms

until the chest just touches or comes within

an inch of the floor. Repeat in moderate

thythm. (Women) Same, except keep the

knees in contact with floor throughout the

movement.

ee

A87

-16-

LEVELS

(Of Repetition)

= ae

>] w ®@

Static Stretcher:

Sit on floor with feet together, hands at

sides. Without bending legs, bend truck

forward, tuck head, reach forward as far

as possible and grasp firmly around legs,

ankles or feet according to the extent of

your reach. Hold for six seconds, relax

and retum to starting position.

Squat Thrusts: 10 15 2

Four distinct motions are to be performed

in rapid succession. Stand with your hands

at your sides, then bend your knees and place

your hands on the floor in front of your feet;

thrust your legs back to a fully extended

position; return to the squat position; then

return to the erect position.

| Te

-1]7.

(Of Repetition)

— =

5 10 15

Curd-ups:

Lie flat on back, legs straight and together

and with the arms extending overhead. In

one motion, curl up, bring the knees up and

wrap the arms around the knees. Return to

the starting position. While raising up, roll

the head, neck, shoulder, upper and lower

back in order. Then unfold in reverse order

coming down.

OE A er aie See

Leg-Overs:; 10 15 20

Lie on back, legs straight and together,

arms stretched sidewards at shoulder level,

palms down. Lift both legs until they are

perpendicular to floor, keeping them

straight and toge her. Lower legs to the left

and touch the floor. Lift to perpendicular

and lower to the right side. Lift again =

perpendicular and retum to starting posi-

tion.

. =

Side Leg Lifts:

Lie on one side with legs together, head

supported by the elbow and hand and the

other hand on floor in front of body for

balance. With the leg straight, lift it as far

as possible and retum to the start- ing posi-

tion. Repeat on other side.

oe

Double Leg Raiser: 10 15 Ww

Lie on back, hands under buttocks, palms

down, with lower back touching floor. With

knees straight, raise both legs to straight up

or 90 degree position, then exhale. Lower

legs slowly to floor and inhale.

re

Mitty heheh: ah tte cet: aliiilimiiaks ania,

eee

ti Ue! ate Nig

Low Back Stretcher:

Lie on your back with knees straight. Pull

one knee to your chest. As you do so, curl

your shoulders and head toward the knee.

Retum to starting position and repeat exer-

cise with other leg.

<<a

Prone Arch;

Lie face down with your arms extended over

your head and your legs extended. Lift your

right arm and left leg simultaneously and keep

them extended for three to four seconds, then

retum to starting position. Now lift the left

arm and right leg simultaneously for three to

four seconds. Repeat. Do this exercise slow-

ly; do not jerk your legs and arms.

10 15 20

LEVELS

(In Minutes)

— a

Select one of the following endurance exercises.

*Jogging 1-2 46 8-10

Jog in place or in a small circle.

*Jogging 1-2 46 8-10

Jog in place or in small circle

using alternate slow, medium

and fast speeds.

*Bench Stepping 24 68 10-12

Step up and down on a bench

or chair (approximately 16-18"

high) at the rate of 15 steps a

minute (one every four

seconds)l. If this pace is too

easy for you, you may increase

this stepping rate to one every

three seconds and finally to

one every two seconds. This

should be only after you have

gone through the three levels.

C. WARM-DOWN EXERCISES

The warm-down period is best accomplished by a continuation of activity at a lowered

intensity. Keep moving for about three to five minutes. Walking, slow jogging or

repeating the stretching exercises are excellent ways to retum to your normal state.

When heart rate and breathing return to near normal, you should finish the workout

with a shower.

A92

GLOSSARY

ML SSA GR Gb AChNsdsceevecess A measure of thythmical motion or a rhyth-

mical flow of sounds.

Calisthenic Program. ............... A series of exercises without use of equip-

ment or with light equipment.

: Cardiorespiratory .......0.. 000000. Joint functioning of the heart and lungs.

|

SA He ES pa n05045 0050000000000 Separate or Different.

Hamstring Muscle Group. .......... ‘Two groups of tendons at the back of the

knee.

: PIN Snes se de cee ed eencnccnces Physical stress on the body during exercise,

determined by measuring heart or pulse rate

after exercising.

PI UUAbC Need asdasesncesacs Basic substances of the body which are

provided by foods.

PU Ad UNG c es ca vaececaes Straight up from the floor or at a 90° angle

to the floor.

IS pS ace Ns cc ewenceencss Being repeated.

Simultaneously. ................5. At the same time.

ere T ere ee An extension of muscle tissue which at-

taches to the bone.

A93

-22-

APPENDIX A

NORMS TABLE

FITNESS §ONE-MINUTE BEND AND THREE-MINUTE

CATEGORY SIT-UPTEST’ |REACHTEST® STEPTEST®

(# of Sit-ups) (# of Inches (Heart Beats

Reached) Per Muinute)

Excellent 35 and above 22-23 84 and below

Good 30-34 20-25 85-94

Average 20-29 J4-19 95 to 119

Below 15-19 12-13 120 to 129

Poor 14 and below 10-11 130 and above

a. Myers, Golding and Sinning sit-up test

b. Myers, Golding and Sinning bend and reach test

c. Kasch and Bover step test

alien this

A94

-23-

APPENDIX B

Record Minutes Spent in Each Type of Exercise

Month:

___ WORKOUT

Day Warm-up _Levell Levelll Level I Cardiorespiratory

ee

$<

A95

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION FILED

Feb 3 1989

LOUIS A. DIZOR, JR., )

5

Plaintiff, ) No. 87-800-CRT

)

Vv. ) MEMORANDUM

) AND

C. CREECY, et al., ) RECOMMENDATION

)

)

Defendants.

Plaintiff’s complaint, as amended, alleges that for 199

days his exercise was restricted to ten-foot cubed fenced

enclosures while he was on administrative segregation. He con-

tends that this amounts to cruel and unusual punishment which

gives rise to this Section 1983 action in which he seeks both

monetary damages and injunctive relief. In an amendment dated

December 30, 1987, plaintiff also complains that the North

Carolina Inmate Grievance Commission was ineffective and

should be "done away with." The amendment also includes a

demand for a jury trial. After a number of delays in which the

court has attempted to have the record supplemented with suffi-

cient information so that the case can be ruled upon, and other

delays at the request of both parties, it now appears that the

defendants’ motions to dismiss and for summary judgment are

ready for ruling.

PLAINTIFF'S CLAIM AGAINST THE INMATE

GRIEVANCE COMMISSION

In his December 30, 1987 amendment the plaintiff com-

plained that the North Carolina Inmate Grievance Commission

had dismissed his complaint of inadequate exercise facilities.

ie i a site

¥

i

i

5

?

ia

z

:

A96

Concluding that the Grievance Commission was ineffective,

plaintiff asked the court to eliminate that commission. As it

developed, only two days later that portion of plaintiff’s request

was granted. The Inmate Grievance Commission was dissolved

effective January 1, 1988 and replaced with the Grievance

Resolution Board. (Chapter 746, Section 1, Session Laws of

1987.) Moreover, there is no constitutional right for any such

commission. See Jones v. Prisoners’ Labor Union, 433 U.S.

119 (1977, Burger, C.J., concurring).

Accordingly, both for mootness and for failure to state a

claim of constitutional dimension, IT IS HEREBY RECOM-

MENDED that defendants’ motion to dismiss BE ALLOWED as

to plaintiff’s compliant that the North Carolina Inmate Grievance

Commission is ineffective.

CLAIM OF CONSTITUTIONALLY INADEQUATE EX-

ERCISE AREA

Plaintiff contends that for 199 days the only exercise he

was allowed was one hour per day in a ten-foot cubed wire

enclosed area. He further contends that because of this limitation

of his exercise over a long period of time that he suffered injury

to his leg and back. The defendants deny that plaintiff has

suffered any injury as a result of restrictions on his exercise and

further deny that restricting his exercise to a ten-foot cubed wire

enclosure is constitutionally inadequate.

In affirming an opinion from this court, the Fourth Circuit

has held that it is not cruel and unusual punishment to restrict the

exercise allowed to intensive management inmates to these ten-

foot cubed wire enclosed exercise areas for one hour each day,

weather permitting. Hollingsworth y. Stephenson, (un-

published) No. 84-6688 (4th Cir. November 6, 1985). (copy

attached)

But it is widely accepted that some form of regular

outdoor exercise is extremely important to the psychological and

physical well being of inmates. Ruiz v. Estelle, 679 F.2d 1115,

1152 (Sth Cir. 1982), modified on other grounds, 688 F.2d 266,

cert. denied 460 U.S 10452; Spain v. Procunier, 600 F.2d 189,

199 (9th Cir. 1979); Miller v. Carson, 392 F. Supp. 515 (M.D.

Fla. 1975); Rhem v. Malcolm, 371 F. Supp. 594 (S.D.N.Y. 1974),

aff’d, 507 F.2d 333 (2d Cir. 1974).

Restrictions on exercise can amount to cruel and unusual

punishment if: (1) it continues for a sufficiently protracted period

of time or (2) it is harmful to the prisoner’s health. Sweet v. South

Carolina Department of Corrections, 529 F.2d 854, 866 (4th Cir.

1975); Ruiz v. Estelle, supra, at 11252; Knop v. Johnson, 667 F.

Supp. 467, 476 (W.D. Mich. 1987). This is not inconsistent with

the undersigned’s Memorandum and Recommendation in Linder

v. Hunt, No. 81-554-CRT (E.D.N.C. 1981) (adopted by Judge

Fox and affirmed by the Fourth Circuit, 714 F.2d 131 (4th Cir.

1983)), because there was no evidence that Linder’s health had

been harmed or that his restrictions had continued for an unduly

long period.

In this case, plaintiff alleges both a long duration of

restrictions and injury to his health. There appears to be no

question but that plaintiff's exercise restrictions were for 199

days. The court will review the matters of record conceming

plaintiff’s health consequences.

It is not disputed that plaintiff has had some health

problems with his lower back and left leg of some origin. He

alleges that these health problems were caused by inadequate

exercise during the 199 days that he was limited to the ten-foot

cubed wire cages during his exercise period.

i

2

®

a

The only evidence in this file on the issue of whether

plaintiff’s back and leg problems were caused by restrictions on

exercise for 199 days is the affidavit of Dr. Dwight G. Davis, a

surgeon under contract with the North Carolina Department of

Correction. Because it is critical to the disposition of this case,

it is worth setting out here the relevant portions of Dr. Davis’

affidavit:

In July and August 1988 I diagnosed Inmate

Dizor who was referred to me with symptoms of

left sided claudication including pain. Aortog-

raphy revealed 80% stenosis of left common iliac

artery as well as moderate narrowing of right

common iliac artery at its origin.

After the patient discussed the therapeutic

possibilities with Dr. Scott Thomas he has decided

to undergo aorto iliac endarterectomy, to remove

the arterial obstruction.

The arterial obstruction is secondary to

arterial schlerotic cardiovascular disease. This

disease develops slowly over a long period of

time. There are several factors that contribute to

this disease one of which is smoking, a habit

practiced by Inmate Dizor.

Lack of aerobic exercise is sometimes thought

to be a contributing factor to arterial sclerotic

cardiovascular disease. Benefit from aerobic ex-

ercise can be obtained by a person confined to a

ten foot by ten foot area for an hour per day, by

doing continuous strenuous activity such as run-

ning in place or calisthenics. For that matter, Mr.

Dizor could have done these exercises while con-

A99

fined to his cell and achieved aerobic benefit

which may or may not have helped his condition.

It is very doubtful that Inmate Dizor’s medical

problems were caused by a lack of exercise due

to his being on adininistrative segregation for 199

days with his exercise area being limited to a ten

foot by ten foot area for one hour per day.

Thus, all of the evidence is that while lack of aerobic

exercise may contribute to arterial sclerotic cardiovascular dis-

ease, one can obtain adequate aerobic exercise in a ten-foot cubed

enclosure. Although plaintiff attacks the credibility of Dr. Davis

by pointing out that he is a consultant for the State, his testimony

that one can obtain aerobic exercise in a ten-foot cubed enclosure

merely comports with common sense and knowledge of such

exercises as jumping jacks and running in place. Moreover,

plaintiff has submitted no evidence to contradict Dr. Davis.

Plaintiff has been accorded an opportunity for aerobic

exercise daily, weather permitting. The fact that he would prefer

to play basketball or to run around a large track rather than run

in place is immaterial. As an aside, the medical evidence suggests

that if plaintiff is truly concerned about his arterial health he

would be well advised to stop smoking.

Because the plaintiff has advanced no evidence that he

has suffered any adverse health consequences attributable to

restricting his exercise to one hour per day in ten foot cubed

enclosures for 199 days, that restriction cannot be found to

amount to cruel and unusual punishment. There being no con-

stitutional deprivation, defendants’ Motion for Summary Judg-

ment should be ALLOWED.

A100

In summary, IT IS HEREBY RECOMMENDED that

defendants’ Motion for Summary Judgment BE ALLOWED as

to all of plaintiff’s claims.

This the 2nd day of February, 1989.

/s/Alexander B. Denson

ALEXANDER B. DENSON

UNITED STATES MAGISTRATE

Al0l

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 84-6688

Kenneth John Hollingsworth,

Norman Terry Harris,

William A. Moye, Bobby A.

Barrett, Gregory Roberson,

Justice E. Miller, individually

and on behalf of all others

similarly situated,

Appellants

versus

L.V. Stephenson, James

Roe, and Sgt. Williams,

Appellees

Appeal from the United States District Court for the Eastern District

of North Carolina, at Raleigh. W. Earl Britt, District Judge. (CA

83-1411-CRT)

Argued June 6, 1985 Decided November 6, 1985

Before WIDENER and MURNAGHAN, Circuit Judges, and

GORDON, District Judge for the Middle District of North

Carolina, sitting by designation.

Marvin Sparrow (North Carolina Prisoner Legal Services, Inc.

on brief) for Appellants; Jacob L. Safron, Special Deputy

ee

-

Attomey General (Lacy H. Thornburg, Attomey General, on

brief) for Appellees.

PER CURIUM:

In this civil action brought under 42 U.S.C. § 1983,

plaintiffs, state court prisoners, properly classified and housed in

the intensive management unit at the Caledonia Correctional

Institution at Tillery, North Carolina, sought declaratory, injunc-

tive, and compensatory relief, contending that restrictions on

their opportunity to exercise violated their eighth amendment,

due process, and equal protection guarantees. More specifically,

plaintiffs alleged that the individual outdoor exercise areas, each

enclosed by a cyclone fence, which measures ten feet in all

directions, and in which intensive management inmates are al-

lowed to exercise seven times a week for an hour each day,

weather permitting, are inadequate and constitute cruel and un-

usual punishment. The argument goes that they are more restric-

tive than intensive management exercise facilities at other North

Carolina prisons, and constitute additional restrictions on the

plaintiffs’ right to exercise that have been imposed without due

process. ‘Both plaintiffs and defendants moved for summary

judgment, and in a well-reasoned Opinion, the district court

granted the defendants’ motion and entered judgment against the

plaintiffs.

With regard to the plaintiffs’ eighth amendment claims,

the district court held that the plaintiffs were not entitled to any

relief because the eighth amendment does not prohibit exercise

facilities that are merely "inadequate," and because the prison

administrators acted within their broad discretion in allowing

admittedly assaultive and disruptive prisoners to exercise in the

outdoor exercise areas. In denying the plaintiffs’ equal protection

———— i

A103

claim, the district court emphasized that intensive management

inmates at other North Carolina prisons are required to exercise

in hand or leg restraints, and concluding that the plaintiffs could

not plausibly argue that exercising in a ten foot square enclosed

exercise area is more restrictive than exercising in hand or leg

restraints. Finally, with regard to the plaintiffs’ due process

claim, the district court held that the enclosed exercise areas are

not “additional restrictions" that give rise to the due process

requirements provided for in the North Carolina prison regula-

tions.

The plaintif

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.