Petition for Writ of Certiorari — Rice v. Mitchell
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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.
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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.
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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
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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
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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.
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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
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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
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PRE SUD kod vena nceues bevteeeeuassean wun 3
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C. Warmown Bassciess . 0.0.0... cc nsec ceces 20
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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
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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
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