# Petition for Writ of Certiorari — Rice v. Mitchell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0885%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 905 ## Text IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1991 NATHAN A. RICE, BOBBY R. WATSON and BOB SEYMOUR, Petitioners, Vv. JAMES CALVIN MITCHELL, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR WRIT OF CERTIORARI LACY H. THORNBURG Attorney General of North Carolina James Peeler Smith Special Deputy Attorney General *Sylvia Hargett Thibaut Assistant Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Telephone: (919) 733-7188 Attomeys for Petitioners *Counsel of Record Il. QUESTIONS PRESENTED DID THE FOURTH CIRCUIT COURT OF APPEALS ERR BY GRAFTING THE SUBJECTIVE COMPONENT OF WILSON y. SEITER ONTO THE PURELY OBJECTIVE STANDARD OF HARLOW vy. FITZGERALD, THEREBY DENYING QUALIFIED IMMUNITY AND CREATING A SEPARATE OFFENSIVE THEORY OF LIABILITY IN DIRECT CON- TRAVENTION OF RULINGS OF THIS COURT? DID THE FOURTH CIRCUIT COURT OF APPEALS ERR BY APPLYING THE REPUDIATED "LEAST RESTRICTIVE ALTERNATIVE" TEST, RATHER THAN THE FOUR-PRONG ANALYSIS REQUIRED BY TURNER y. SAFLEY, THEREBY DENYING QUALIFIED IMMUNITY IN A CLAIM ARISING FROM DENIAL OF OUT-OF-CELL EXERCISE PRIVILEGES TO A VIOLENTLY ASSAULTIVE INMATE WHEN LESSER MEASURES HAD BEEN REPEATEDLY ATTEMPTED AND CONSISTENTLY FAILED? DID THE FOURTH CIRCUIT COURT OF APPEALS ERR BY FAILING TO APPLY THE PARTICULARIZED STANDARD OF REVIEW FOR A QUALIFIED IMMUNITY DEFENSE REQUIRED BY ANDERSON v. CREIGHTON? QUESTIONS PRESENTED TABLE OF AUTHORITIES OPINIONS BELOW STATEMENT OF JURISDICTION TABLE OF CONTENTS CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED STATEMENT OF THE CASE .n cece ccccsccccccsccces I. THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY GRAFTING THE SUBJECTIVE COM- PONENT OF WILSON V. SEITER ONTO THE PURELY OBJECTIVE STANDARD OF HARLOW V. FITZGERALD, THEREBY DENYING QUALIFIED IMMUNITY AND CREATING A SEPARATE OFFENSIVE THEORY OF LIABILITY IN DIRECT CONTRAVENTION OF RULINGS OF TED GHRAIB. becca vaccvecceneseeksubeeenac anes THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY APPLYING THE REPUDIATED "LEAST RESTRICTIVE ALTERNATIVE" TEST, RATHER THAN THE FOUR-PRONG ANALYSIS REQUIRED BY TURNER v. SAFLEY, THEREBY DENYING QUALIFIED IMMUNITY IN A CLAIM ARISING FROM DENIAL OF OUT-OF-CELL EXERCISE PRIVILEGES TO A VIOLENTLY AS- SAULTIVE INMATE WHEN LESSER MEASURES HAD BEEN REPEATEDLY ATTEMPTED AND COBGREDEMEUELSS TOAILABD 2... ceccccsccccecscoces von an Il. THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY FAILING TO APPLY THE PAR- TICULARIZED STANDARD OF REVIEW FOR A QUALIFIED IMMUNITY DEFENSE REQUIRED BY ANDERSON v. CREIGHTON. .................045. 14 TM RcR ches Gh45 866006 s500605506005066000% 21 iv TABLE OF AUTHORITIES Anderson v. Creighton, 483 U.S. 635 (1987) ....... 14,17,19 Bell v. Wolfish, 441 U.S. 520 (1979) ...........-. 17 Block v. Rutherford, 468 U.S. 576 (1984) ......... 17 Clay v. Miller, 626 F.2d 345 (4th Cir. 1980) ....... 15,18 Davenport v. DeRobertis, 653 F. Supp. 649 (N.D. Ill. 1987), modified and affirmed. oe Bk Te fe | re 19,20 Davis v. Scherer, 468 U.S. 183 (1984) ............ 14,17 Harlow vy. Fitzgerald, 457 U.S. 800 (1982) ........ 9,10,11 Hunter vy. Bryant, 502 U.S. . tye Gee 2), ere PEP TUTE ET TTT eT 18,19 Jones v. North Carolina Prisoners’ Me A ys ra 17 Kirby v. Blackledge, 530 F.2d 583 SE acc oda tieges abc's sd eeas a00%s 15,18 Malley v. Briggs, 475 U.S. 335 (1986) ........... 18 McKinney v. Anderson, 959 F.2d 853 Ee eee ewes nad Ewe oxen d den 11 Mitchell v. Forsyth, 472 U.S. 511 (1985) .......... 9, 10,20 Mitchell v. Martin, 836 F.2d 546 ee eee shauna eas 2 Mitchell v. Martin, 867 F.2d 609 ee ay oak bw Wea we 2 Mitchell v. Martin, No. 86-235-CRT (E.D.N.C. July 20, 1987 and August 12, 1987) ..... 2 Mitchell v. Rice, 954 F.2d $87 RRP ear a 2,9, 12, 14,19 Mitchell v. Rice, No. 86-235-CRT (E.D.N.C. Feb. 1, 1990)unpublished) ............ 2 Peli v. Procunier, 417 U.S. 817 (1974) ........... 17 Procunier v. Martinez, 416 U.S. 396 (1974) ....... 17 Rhodes v. Chapman, 452 U.S. 337 (1981) ......... 16,18 Siegert v. Gilley, ___ U.S. ___, 111 S. Ct. | rn en ee ree eer 11 Spain v. Procunier, 600 F.2d 189 Oe A ere ctor 20 Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir. 1975) .......-- eee eee eee 15,18 Turner v. Safley, 482 U.S. 78 (1987) ......-----+: 10, 12,13,14, 17 United States v. Fountain, 768 F.2d 790 (2) Pee eee eo 20 Wallace v. King, 626 F.2d 1157 (4th Cir. 1980), cert. denied, Pye) & ol. | | er er 18 Whitley v. Albers, 475 U.S. 312 (1986) ........--. 17 Wilson v. Seiter, 501 U.S. __, the Boe fi, | ere re eee 9,10,11,13 STATUTES AND CONSTITUTIONS Eighth Amendment, U.S. Constitution ..........- 3 y Bip Som oy. |) err rere Se reer er 2 Fo Rik (om f. . Serre rery ye rer tn. 3 MISCELLANEOUS N.C. Admin. Code tit. 5, r. 2C .0300(d)(1) ......-. 5 N.C. Admin. Code tit. 5, r. 2C .0303 ef Seg. ....--- 3 N.C. Admin. Code tit. 5, r. 2C .0401 (Dec. 1984) ...4 Te a ne No. a IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1991 NATHAN A. RICE, BOBBY R. WATSON and BOB SEYMOUR, Petitioners, v. JAMES CALVIN MITCHELL, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioners, officials of the North Carolina Department of Correction, pray that this Court issue its Writ of Certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit, decided January 10, 1992, which affirmed the district court’s denial of qualified immunity. OPINIONS BELOW The order of the Court of Appeals for the Fourth Circuit denying the petition for rehearing and suggestion for rehearing __ in banc in this case may be found in the appendix (App.) to this petition at App. A127. The opinion of the Court of Appeals for the Fourth Circuit in this matter, affirming the district court’s denial of qualified ‘immunity, is reported at Mitchell v. Rice, 954 F.2d 187 (4th Cir. 1992), and may be found in the appendix at App. A113. The opinion of the district court denying qualified im- munity, Mitchell v. Rice, No. 86-235-CRT (E.D. N.C. Feb. 1, 1990) (unpublished), may be found in the appendix at App. A109. A prior opinion of the Court of Appeals for the Fourth Circuit in this matter, Mitchell v. Martin, 867 F.2d 609 (4th Cir. 1989) [Table], which vacated the district court’s entry of sum- mary judgment for petitioners, may be found in the appendix at App. A34. The initial opinion of the Court of Appeals for the Fourth Circuit in this matter, Mitchell v. Martin, 836 F.2d 546 (4th Cir. 1987) [Table], may be found in the appendix at App. A28. The magistrate judge’s memorandum and recommenda- tion, which granted summary judgment to the petitioners, and the district court’s adoption of that memorandum and recommenda- tion, Mitchell v. Martin, No. 86-235-CRT (E.D.N.C. July 20, 1987 and August 12, 1987) (unpublished), may be found in the appendix at App. A19. STATEMENT OF JURISDICTION The decision of the Fourth Circuit Court of Appeals denying the petitioners’ petition for rehearing and suggestion for rehearing en banc was filed on February 28, 1992. (App. A127). The time for filing this petition, which was originally due ninety days after February 28, 1992, or on May 28, 1992, was extended by order of Chief Justice Rehnquist, to and including June 27, 1992. (App. A129). Jurisdiction of the Court is, thus, invoked pursuant to 28 U.S.C. § 1254(1). ‘ CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED The Eighth Amendment to the United States Constitu- tion: "Excessive bail shall not be required, nor exces- sive fines imposed, nor cruel and unusual punishments inflicted." 42 U.S.C. § 1983: Every person who, under color of any statute, or- dinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thegeof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. N.C. Admin. Code tit. 5, r. 2C 0303 et seq.:' The original and amended versions of these regula- tions may be found in the appendix at App. A130, A145. Because this regulation was amended between respondent's first and second restricted exercise periods, both versions are included. 4 STATEMENT OF THE CASE The undisputed facts of this case, as found by the Fourth Circuit Court of Appeals, are as follows: In December 1973, respondent James Calvin Mitchell (hereinafter "Mitchell") began serving a thirty-year sentence for second degree murder and a consecutive five to ten-year sentence for armed robbery. (App. Al). During this incarceration, Mitchell was convicted of further crimes. On April 23, 1975, Mitchell was convicted of assault with a deadly weapon with intent to kill resulting in serious injury, for which he received a three-year concurrent sentence. (App. Al). On November 10, 1975, Mitchell was convicted of attempted escape from prison, for which he received a four-month concurrent sentence. (App. Al). On October 14, 1980, Mitchell was convicted of assault with a deadly weapon inflicting serious injury, for which he received a twelve-month concurrent sentence. (App. Al). On July 11, 1983, Mitchell assaulted two inmates in a dayroom, for which he was later convicted on two counts of assault with a deadly weapon with intent to kill inflicting serious injury. He received consecutive sentences of ten and twenty years for these convictions. (App. A2). From 1973 to 1986, Mitchell incurred over seventy-six prison rule infractions, many of which were assaultive in nature. (App. A2). At the time of Mitchell’s July 11, 1983 assaults, he was in the most restrictive custody level in the North Carolina prison system -- maximum custody, assigned to intensive management at Central Prison. (App. A2-A3). Intensive management (later renamed "maximum custody") is used to isolate inmates who “pose an imminent threat to the life or health of other inmates or the staff....". N.C. Amin. Code tit. 5, r. 2C .0401 (Dec. 1984). (App. A3, A37). These same prison regulations provide that inmates who are assigned to intensive management may be further restricted as to their outside cell activities “[iJn any instance where an inmate has seriously assaulted or threatened to assault staff or other inmates if allowed outside the cell...."_ 1. 2C .0300(d)1. (App. A38, A134, A148). Further restrictions authorized, if the initial restrictions fail to resolve an inmate's threatening and dangerous behavior, include outside cell ac- tivities only while restrained in hand and leg cuffs and, finally, total restriction on out-of-cell activities except for showers. (App. A38, A134-A135, A148-A149). If total out-of-cell restric- tions are imposed, notice anc a hearing are provided. Id. As a result of Mitchell’s July 11, 1983 assaults, Mitchell was placed in full restraints (hand and leg cuffs) any time he was outside his cell. Despite these further restrictions, Mitchell’s assaultive behavior continued unabated. On July 24, 1983, while exercising in full restraints in the dayroom of the maximum custody cellblock, Mitchell attempted to break the window of the Control Station with a broom handle. (App. A3). This behavior led Bobby R. Watson, Associate Warden for Operations at Central Prison (hereinafter "Watson") to recommend that Mitchell be restricted to his cell except for showers in full restraints. (App. A3). After notice and a hearing, these restrictions were approved by the Director’s Subcommittee on July 28, 1983, with review scheduled and given every thirty days. (App. A3, A39). Pursuant to standard operating procedures, Mitchell was provided an exercise manual demonstrating in-cell exercises. Seven months later, on February 29, 1984, Mitchell’s out-of-cell exercise privilege was restored, but Mitchell, still consideréd quite dangerous, was placed in full restraints when- ever he was out of his cell. (App. A3). One year later, on February 26, 1985, Mitchell resumed his assaultive behavior by again attempting to break the window in the Control Station with a mop wringer, after refusing to return to his cell. (App. A4). The out-of-cell exercise restrictions were again imposed by the Director’s Classification Committee (formerly the Director’s Subcommittee) on April 3, 1985. (App. A4). Eleven months later, on March 14, 1986, the out-of-cell exercise restrictions were lifted and Mitchell was transferred to Caledonia Correctional Institution. (App. A4). During the two periods of out-of-cell exercise restrictions Mitchell did not file any grievances complaining about his health or medical problems and his medical records do not reveal any injuries attributable to his restrictions. (App. A39-A40). Mitchell filed this civil action pro se on March 3, 1986, in the United States District Court for the Eastern District of North Carolina, Raleigh Division, against Govemmor James Mar- tin (hereinafter "Governor Martin"); Nathan Rice (hereinafter “Warden Rice"), who was at that time the Warden of Central Prison in Raleigh, North Carolina; Bobby Seymour (hereinafter "Seymour"), who was a Program Director for Classification at Central Prison; and Bobby R. Watson (collectively "defendants"). On July 28, 1986, the defendants filed motions to dismiss and for summary judgment, supported by a brief and affidavits. On July 20, 1987, the Honorable Charles K. McCotter, Jr., United States Magistrate Judge, recommended summary judgment be granted defendants. (App. A19). The magistrate judge’s recommenda- tion was adopted by the Honorable W. Earl Britt, United States District Judge, on August 12, 1987. (App. A26). Mitchell timely appealed. On December 17, 1987, the Fourth Circuit Court of Appeals affirmed the judgment of the district court in all respects, with the exception of Mitchell’s claim that the restrictions the defendants had placed on his out-of-cell exercise privileges vio- lated his Eighth Amendment rights. (App. A28). Defendants moved for an extension of time to petition for rehearing, which was granted. (App. A32(a)). On January 13, 1988, defendants filed a petition for rehearing, which was granted on February 29, 1988, and thereafter appellate counsel was appointed for Mitchell. (App. A33). On January 12, 1989, the Fourth Circuit Court of Appeals vacated the entry of summary judgment on Mitchell’s claim of denial of out-of-cell exercise privileges and remanded the case to the district court "for the development of additional facts on this issue, particularly whether the plaintiff offered any proof of injury...." (App. A34, A36). On January 23, 1989, Warden Rice, Seymour and Watson filed an answer, specifically asserting the defense of qualified immunity.” The defendants filed a renewed motion for summary judgment, supported by a brief and extensive affidavits concern- ing documentation of the restrictions on Mitchell’s out-of-cell exercise privileges and his medical records, specifically raising their defense of qualified immunity. On August 9, 1989, the district court denied without prejudice defendants’ renewed motion for summary judgment, without addressing their defense of qualified immunity. (APP. A104, A106). 2 Governor Martin was dismissed from this action by the district court and that dismissal was affirmed by the Fourth Circuit Court of Appeals on the first appeal. (App. A32). On December 12, 1989, Mitchell moved to amend his complaint in order to name the remaining defendants in their individual as well as official capacities. Mitchell also sought to add additional defendants and further relief. On February 1, 1990, the district court filed an order denying qualified immunity and allowing Mitchell to amend his complaint. (App. A109). On February 12, 1990, the defendants filed notice of appeal based on the district court’s denial of qualified immunity. (App. A112). On January 10, 1992, the Fourth Circuit Court of Appeals entered an opinion affirming the district court’s denial of qualified immunity. (App. A113). The defendants timely peti- tioned for rehearing with suggestion for rehearing en banc. On February 28, 1992, the Fourth Circuit Court of Appeals entered an order denying defendants’ petition for rehearing. (App. A127). The defendants thereafter moved for an extension of time to petition for a writ of certiorari, which was granted on May 12, 1992. (App. A129). REASONS FOR GRANTING THE WRIT I THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY GRAFTING THE SUBJECTIVE COM- PONENT OF WILSON V. SEITER ONTO THE PURELY OBJECTIVE STANDARD OF HARLOW V. FITZGERALD, THEREBY DENYING QUALIFIED MMUNITY AND CREATING A SEPARATE OF- PENSIVE THEORY OF LIABILITY IN DIRECT @ ONTRAVENTION OF RULINGS OF THIS — “he Fourth Circuit Court of Appeals denied qualified wmmmunety to the defendant prison officials, holding that inquiry into the constitutionality of their actions in the case at bar "would be better accomplished by a trial judge after a full hearing on the acts.” Mitchell v. Rice, 954 F.2d at 193. The Court of Appeals then cited to this Court’s most recent Eighth Amendment decision, Wilson v. Seiter,501 U.S.__, 111 S. Ct. 2321 (1991), for the proposition that this hearing would require inquiry into ~ the prison officials’ state of mind when they imposed the exercise restrictions on Mitchell. 954 F.2d at 193 n.6. By taking this approach, the Fourth Circuit Court of Appeals has grafted the subjective component of Wilson v. Seiter onto the purely objec- tive standard of Harlow v. Fitzgerald, 457 U.S. 800 (1982), thereby repudiating Harlow’s elimination of a subjective intent component as a separate inquiry in a qualified immunity defense. In Mitchell v. Forsyth, 472 U.S. 511 (1985), this Court clearly stated that, when resolving a defense of qualified im- munity, a trial court "need not consider the correctness of the plaintiff’s version of the facts, nor even determine whether the plaintiff’s allegations actually state a claim," as the question of immunity "is separate from the merits of the underlying action." 472 U.S. at 528. The threshold question for the trial court, thus, 10 is pot whether the plaintiff’s constitutional rights may have been violated, but rather, what was the clearly established law at the time of the defendants’ actions and was that law sufficiently particularized to have given the defendants notice that their actions may violate the plaintiff’s constitutional rights. This Court specifically noted in Harlow v. Fitzgerald, 457 U.S. 800 (1982), that the objective reasonableness standard of review was established because "questions of subjective intent so rarely can be decided on summary judgment" and the defense of qualified immunity shields public officials from "wide-ranging discovery" and trial, not merely liability. 457 U.S. at 816-18. Accord Mitchell v. Forsyth, 472 U.S. at 526-27. Thus, even an allegation of malice will not suffice to negate the defense of qualified immunity. Harlow, 457 U.S. at 817-18. If the Fourth Circuit Court of Appeals is correct in saying that this case should go to trial on the merits, then the question of the defendant prison officials’ subjective intent would be relevant conceming the issue of deliberate indifference. Wilson v. Seiter, 501 U.S. at__, 111 S. Ct. at 2324-25. The defendants contend, however, that this would be purely an additional theory of defense, not -- as the Fourth Circuit Court of Appeals would have it -- an alternate and independent theory of liability. When a court is determining the threshold question of qualified im- munity, there is no subjective element -- the issue is purely a legal one. The defendants perceive the subjective element of Wilson v. Seiter to be a matter purely of defense, not an alternative theory for prisoners to utilize to bypass Harlow v. Fitzgerald and Turner v. Safley, 482 U.S. 78 (1987), to get to a jury. Under Seiter, only if an actual constitutional violation is established does the focus shift to the subjective intent of the defendants. Even assuming such violation, if the defendants are not shown to have been deliberately indifferent -- failing to take reasonable 11 ameliorating actions readily available to them, for example -- then plaintiff’s claim nonetheless fails. The effect of the Fourth Circuit Court of Appeals’ use of the Seiter subjective element is to re-establish a separate theory of potential liability which a plaintiff can plead affirmatively and which will in effect eliminate qualified immunity. The Ninth Circuit Court of Appeals has recently recognized that the subjec- tive element of Seiter is an additional barrier to a prisoner’s Eighth Amendment claim. McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992). This conflict in application of Seiter, and espe- cially the Fourth Circuit’s application of its disastrous version to a defense of qualified immunity, will continue until this Court makes clear the substantive and procedural posture of the subjec- tive element. Is the subjective element only a shield for defen- dants or, as employed by the Fourth Circuit i in the case at bar, is it a separate sword to be wielded by plaintiffs?” The Court should allow this petition to address this important constitutional issue. 3 See, i.e., Justice Kennedy’s analysis of “the tension between the rationale of Harlow" and a claim containing intent as an element. Siegert v. Gilley, _ U.S. ____, 111 S. Ct. 1789, 1795 (1991). 12 Il. THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY APPLYING THE REPUDIATED "LEAST RESTRICTIVE ALTERNATIVE" TEST, RATHER THAN THE FOUR-PRONG ANALYSIS REQUIRED BY TURNER v. SAFLEY, THEREBY DENYING QUALIFIED IMMUNITY IN A CLAIM ARISING FROM DENIAL OF OUT-OF-CELL EXERCISE PRIVILEGES TO A VIOLENTLY ASSAULTIVE IN- MATE WHEN LESSER MEASURES HAD BEEN REPEATEDLY ATTEMPTED AND CONSISTENTLY FAILED. The holding of the Fourth Circuit Court of Appeals forces prison officials to act at their peril when they restrict an inmate’s out-of-cell exercise privileges, pursuant to prison regulations, even if the inmate is violently assaultive and continuously un- manageable. Moreover, the decision precludes qualified im- munity as a defense, even in the absence of any injury to the inmate. The court reached this holding by applying a "least restrictive altemative" analysis, in direct contradiction to this Court’s majority ruling in Turner v. Safley, 482 U.S. 78 (1987), and relying instead on Justice Stevens’ dissenting opinion. See, i.c., Mitchell v. Rice, 954 F.2d at 193 andn. 5 ("Adetailed review of the feasibility of alternatives in this case, such as solitary out-of-cell exercise periods, or the adequacy of in-cell exercise would need to precede a grant of qualified immunity in a case such as this."). A review of the record reveals that graduated, measured alternatives, including solitary out-of-cell exercise periods, were attempted by the prison officials in this case prior to the imposition of the prohibition of all Mitchell’s out-of-cell exercise. (App. A2-A4). These alternatives consistently failed 13 to curb Mitchell’s assaultive behavior, necessitating the final measure of a prohibition on all out-of-cell exercise. Not only did the Fourth Circuit Court of Appeals er- roneously reject the four-prong Turner analysis, but com- pounded the error by placing the burden on defendants to show the absence of reasonable, less restrictive alternatives. This shifting of the burden clearly violates this Court’s holding in Turner. Prison officials "do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint." 428 U.S. at 90-91. Defendants further assert that Turner v. Safley and Wilson v. Seiter are readily interconnected. If prison officials apply in a rational fashion the four-prong Turner analysis to their discretionary decisions regarding internal security, only in rare instances could they be held to have acted with deliberate indif- ference to conditions which might violate the Constitution. This process of conscious application of the four prongs all but eliminates deliberate indifference. Moreover, when prison offi- cials must exercise their discretion, courts are directed to defer to that discretion in the absence of totally unreasonable acts. Thus, when prison officials exercise their discretion within objectively reasonable bounds, as did the defendants in the case at bar, they must be granted qualified immunity. Defendants contend that a proper application of the four- prong standard of review established by this Court in Turner 4 The four prongs are: (1) whether there exists a logical connection between the regulation and the legitimate governmental interest upon which it is based, (2) whether there are alternative means of exercising the right the regulation 14 v. Safley, areview the defendants presented but the Fourth Circuit Court of Appeals refused to apply, results in a grant of qualified immunity to them. Hl. THE FOURTH CIRCUIT COURT OF APPEALS ERRED BY FAILING TO APPLY THE PAR- TICULARIZED STANDARD OF REVIEW FOR A QUALIFIED IMMUNITY DEFENSE REQUIRED BY ANDERSON v. CREIGHTON. In Anderson v. Creighton, 483 U.S. 635 (1987), this Court held that the general rule of qualified immunity is to provide government officials with the ability "reasonably [to] anticipate when their conduct may give rise io liability for damages." 483 U.S. at 639, citing to Davis v. Scherer, 468 U.S. 183, 195 (1984). Thus, the standard of review a court must apply when determining whether the law was clearly established is a "particularized" determination, i.¢., whether the "contours of the right [are so] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. "[I]n the light of pre-existing law the unlawful- ness must be apparent." Id. The Fourth Circuit Court of Appeals specifically noted in its opinion that it had "never held that denial of out-of-cell exercise opportunities is per se unconstitutional cruel and unusual punishment." Mitchell v. Rice, 954 F.2d at 191. In fact, the court + (Footnote continued) restricts or prohibits, (3) the impact ‘eccommedetion of the asserted constitutional right will have on staff and other inmates, = Ang other alternatives to the restrictions imposed. 482 U.S. at eerie 15 held the following to be the "clearly established" law in their opinion: [P]recedent from this and other circuits clearly establish that depriving inmates of all meaningful opportunities to exercise generally violates the Eighth Amendment prohibitions against cruel and unusual punishment. Exceptions may be made under exigent circumstances that necessitate con- striction of these rights. 954 F.2d at 193. The precedent in the Fourth Circuit upon which the court relied includes Clay v. Miller, 626 F.2d 345 (4th Cir. 1980), Kirby v. Blackledge, 530 F.2d 583 (4th Cir. 1976), and Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir. 1975). None of these cases sets forth any clear rule of law upon which a prison official could base a discretionary decision. Clay v. Miller stated that "courts must look at the totality of the cir- cumstances, including the extent to which the restrictions ad- versely affect the mental or physical health of the inmate...." 626 F.2d at 347, Kirby v. Blackledge held that the totality of condi- tions may constitute an Eighth Amendment violation and, in dicta, held that inadequate exercise could reach the level of cruel and unusual punishment, but remanded to the district court for a determination of whether "the combination of conditions and circumstances alleged really amounted to cruel and unusual punishment..." 530 F.2d at 587. Sweet v. South Carolina Dept. of Corrections held that "indefinite limitation on exercise may be harmful to a prisoner’s health, and, if so, would amowrit to ‘cruel and unusual’ punishment...."_ 529 F.2d at 566 (emphasis added). Thus, the Fourth Circuit precedent upon which the prison officials in this case had to rely instructed that it was a totality of 16 circumstances test which controlled and that actual injury was the single factor which could -- alone -- signal a constitutional violation. The facts adopted in the case at bar by the Fourth Circuit Court of Appeals revealed that Mitchell suffered no actual injury and that his only complaint was lack of out-of-cell exer- cise. Further, he did not complain of the totality of his conditions of confinement, nor does the record reflect that Mitchell ever submitted a grievance or any other formal or informal complaint about the effect of the lack of out-of-cell exercise, and his medical records reflect no injury or illness attributable to the exercise restrictions. Accordingly, Fourth Circuit precedent could not have placed the prison officials on notice that they might be violating Mitchell’s constitutional rights. The only case from this Court which gave any direction to the prison officials is Rhodes v. Chapman, 452 U.S. 337 (1981). Rhodes also employed a totality of circumstances standard, holding that only conditions which "resulted in unques- tioned and serious deprivations of basic human needs" would constitute an Eighth Amendment violation. 452 U.S. at 347. Rhodes went on to hold, however, that conditions could be "restrictive and even harsh." Id. This Court has repeatedly noted in its prison cases that the issue of internal security is one best left to the informed discretion of prison officials. [JJudgments regarding prison security "are peculiarly within the province and professional expertise of corrections officials, and, in the ab- sence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." in naman ieaieeaieieane es E 17 Turner v. Safley, 482 U.S. at 86, citing to Pell v. Procunier, 417 U.S. 817, 827 (1974). Accord Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977); Bell v. Wolfish, 441 U.S. 520 (1979), Rhodes v. Chapman, supra; Block v. Rutherford, 468 U.S. 576 (1984); Whitley v. Albers, 475 U.S. 312 (1986). Based on the established law of this Court and the Fourth Circuit when Mitchell’s out-of-cell exercise was prohibited, it is clear that the "particularized" guidance required by Anderson v. Creighton was not available to the defendants in reaching their decision to impose the exercise restrictions. The relevant case law established that an Eighth Amendment violation occurred only if the conditions caused injury or resulted in a denial of a basic human need. Mitchell was neither injured nor so denied. The defendants were charged with the formidable task of striking a balance between the safety and security of the prison staff and other inmates and the welfare of Mitchell, in the face of no particularized legal precedent. The defendants attempted a measured approach to the problem, but lesser measures were not effective. When persuasion and reward proved miserably inef- fective, the unpleasant but necessary recourse of pure restraint was employed and proved effective. 5 For purposes of determining whether a constitutional right was Clearly established, the court may look to the law of the relevant circuit at the time of the conduct in question, Davis v. Scherer, 468 U.S. 183, 191-92 (1984), and this Court. 18 Prison officials are not required to anticipate changes in the law. Wallace v. King, 626 F.2d 1157 (4th Cir. 1980), cert. denied, 457 U.S. 969 (1981). In light of the Fourth Circuit Court of Appeals’ holdings in Sweet, Kirby and Clay , and this Court’s holding in Rhodes, it was reasonable for the defendant prison officials to believe that they were not violating Mitchell’s Eight Amendment rights by prohibiting out-of-cell exercise so long as he did not suffer any actual injury and the totality of his conditions of confinement were not substandard. That was how the district court initially interpreted the case law when it granted summary judgment to the defendants. (App. A23). That is why the defendants should have been granted qualified immunity. This Court has stated that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 343 (1986). The defendant prison officials in the case at bar can be accused of neither in light of the acknowledged facts. As recently noted in Hunter v. Bryant, 502 US.__, __, 112 S. Ct. 534, 537 (1991), "[tJhis accommodation for reasonable error exists because ‘officials should not err always on the side of caution’ because they fear being sued." The defendant prison officials in a maximum custody prison, faced with a discretionary decision regarding security, armed with regulations which provided an effective solution, especially in light of no particularized, clearly estab- lished law, should not hesitate to act in the fear that some court 6 How can these defendant prison officials be held to know that their conduct may have violated clearly established law when a federal judge a magistrate judge have found their actions in this case constitutional? (App. Al9, A26-A27). may, years after the fact, fashion “another reasonable, or more reasonable" solution. Id. If reasonable prison officials could differ as to the decision, qualified immunity should be granted. The Fourth Circuit Court of Appeals noted its own inadequacy to address the factual situation presented to them in the case at bar. "We are not penologists ... [and] cannot properly judge the necessity or adequacy of appellants’ actions." Mitchell v. Rice, 954 F.2d at 193. Mitchell himself presented no testimony, expert or other- wise, that a less restrictive means was available, much less that restricting his exercise privilege was unreasonable. The Fourth Circuit Court of Appeals has elevated out-of-cell exercise to the level of a discrete constitutional right equal in majesty to the prohibition against corporal punishment. Even if the court were correct, surely it is a right that can be waived by conduct inimical to -- indeed, contemptuous of -- the exercise of that right. Mitchell’s unrelenting assaultiveness in the face of graduated levels of restrictions clearly constitutes such a waiver. Surely these prison officials should not be subjected to the burden of a jury trial and potential liability when they decide to forbid totally out-of-cell exercise privileges to a prisoner who poses a constant danger of assault. Are prison officials constitutionally required to expose themselves to assault by a prisoner in order not to violate the prisoner’s supposed constitutional right to exercise outside his cell? The Fourth Circuit Court of Appeals incorrectly applied the Anderson particularized standard of review in denying the defendant prison officials qualified immunity. The Fourth Circuit Court of Appeals’ decision in this case is also in direct conflict with a quite similar case in the Seventh Circuit, in which qualified immunity was granted. In Davenport v. DeRobertis, 653 F. Supp. 649 (N.D. Ill. 1987), modified and affirmed, 844 F.2d 1310 (7th Cir. 1988), the Seventh Circuit Court of Appeals granted qualified immunity to prison officials who allowed long term segregated inmates only one hour of out-of-cell exercise per week. The Davenport district court, further recognizing the occasional need for total denial of out-of- cell exercise to maintain security, held that total restriction was not objectionable “if a segregated inmate violates prison rules during his exercise or shower period...." 653 F. Supp. at 664. The Seventh Circuit Court of Appeals specifically approved this total restriction, noting that "[t]he exception for fractious inmates protects the defendants’ legitimate interest in security, well illustrated by United States v. Fountain, 768 F.2d 790 (7th Cir. 1985); it is unfortunate but unavoidable that the exception may itself engender litigation...." 844 F.2d at 1315.’ In the case at bar, Mitchell did violate prison rules -- by attempting to break a control station window to assault a guard -- while he was exercising by himself in the dayroom in full restraints. Mitchell, then, is that fractious inmate who engenders litigation. It would be impossible for any court to fashion a rule of law as to just what type of behavior is required to meet the "fractious inmate" standard. Prison officials must be able to employ their professional judgment in determining whether an inmate has reached that level. Qualified immunity is a legal question. Mitchell v. Forsyth, 472 U.S. 511 (1985). The record in the case at bar is sufficient, factually, to determine the legal correctness of the defendant prison officials’ actions. Under very similar 7 Even the Ninth Circuit Court of Appeals, in Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979), noted the possible need for a total deprivation of out-of-cell exercise when "disciplinary needs" required that decision. 21 circumstances, the Seventh Circuit Court of Appeals held that qualified immunity applied. It should apply here as well. The defendant prison officials urge this Court to grant their petition, review the record, and determine for itself that their actions entitle them to qualified immunity. CONCLUSION For the reasons stated, the petitioners believe that the decision of the Fourth Circuit Court of Appeals is in conflict with decisions of this Court and the Seventh Circuit Court of Appeals. Therefore, the Court should issue the writ in order to settle the conflicts and correct the decision below. » Respectfully submitted this the AS” day of June, 1992. LACY H. THORNBURG Attorney General James Peeler Smith Special Deputy Attorney General *Sylvia Hargett Thibaut Assistant Attorney General N.C. Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Telephone: (919) 733-7188 Attomeys for Petitioners *Counsel of Record APPENDIX A-i APPENDIX TABLE OF CONTENTS Affidavit of Nathan Rice, filed February 19, Page 1987, in support of petitioners’ original motion SOF GUMNGRETY POGGTAGTE once ccccccccccsessccscncecesss Al Magistrate Judge’s Memorandum and Recommendation, filed July 20, 1987, recommending summary judgment for SONNY o vccccccseresdccetekinesesses tanks asses Al9 Order of district court, filed August 12, 1987, adopting Magistrate Judge’s recommendation for summary judgment for petitioners ...............+. A26 Judgment from district court, filed August 12, 1987, allowing petitioners’ motion for summary judgment and dismissing case ...............0eeeeeeee A27 Unpublished opinion of Court of Appeals for the Fourth Circuit, decided December 17, 1987, affirming the district court’s granting of summary judgment for petitioners, except for the denial of out-of-cell exercise claim, and remanding to the district Court ............cceeeeeeeees A28 Order of the Court of Appeals for the Fourth Circuit, filed January 19, 1988, extending the time within which petitioners may file a petition SOP CORAM 6 cscs cctcevvchinatasereaneeedeseeaes as A32(a) Order of the Court of Appeals for the Fourth Circuit, filed February 29, 1988, granting petitioners’ petition for rehearing ...............eeee005 A33 A-ii Unpublished opinion of Court of Appeals for the Fourth Circuit, decided January 12, 1989, reversing the district court’s granting of summary judgment on respondent’s denial of ROVER EGh SGA cabacccascevesscccescccece A34 Supplemental affidavit of Bobby R. Watson, filed April 28, 1989, in support of petitioners’ renewed motion for summary GC Ukwce bases’ eee A37 Order of district court, filed August 9, 1989, denying without prejudice petitioners’ renewed motion for summary judgment until after ES A104 Order of district court, filed November 28, 1989, directing respondent to respond to petitioners’ motion to reconsider their renewed motion for summary judgment ........................ A108 Order of district court, filed February 1, 1990, denying petitioners’ defense of qualified ST UMMUN MRE UA Senne S4Ssy0cveeececccccecces A109 Notice of Appeal, filed February 12, 1990, appealing the denial of qualified immunity .............. All12 Published opinion of the Court of Appeals for the Fourth Circuit, decided January 10, 1992, denying petitioners’ defense of qualified SEMEN UNOS ENG SAU 4 G4 vesso40crseccccccasccces A113 Order of the Court of Appeals for the Fourth Circuit, filed February 28, 1992, denying petitioners’ petition for rehearing with suggestion for rehearing in banc ....................... A127 Order of the Supreme Court, entered May 12, 1992, extending the time within which petitioners may file their petition for writ of CUNT 6 bn Se ceWENs Kedeede dscns cssceces. Regulations of the NCDOC governing conditions of confinement for segregated inmates codified as N.C. Admin. Code tit. 5, r. 2C .0303, et seq., effective February 6, BPE SaebESeARde Ros onbedercceranecvseseccees Regulations of the NCDOC governing conditions of confinement for segregated inmates, codified as N.C. Admin. Code tit. 5, r. 2C .0303, et seq., effective December 1, FT eve ecnkctaceebubectuaneh ia by e¥ss 065% Al IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA CIVIL NO. 86-235-CRT FILED Feb 19 1987 JAMES CALVIN MITCHELL, Plaintiff Vv. AFFIDAVIT GOVERNOR JAMES G. MARTIN, et al., Defendants. i i a ee a I, NATHAN RICE, being first duly sworn, do hereby depose and say: I am employed by the North Carolina Department of Correction, Division of Prisons, as Warden of Central Prison in Raleigh, North Carolina. Inmate James Calvin Mitchell was admitted to the North Carolina Prison System on December 18, 1973 to serve a 30-year sentence for Second Degree Murder and a 5 to 10 year consecu- tive sentence for Armed Robbery. On April 23, 1975, he was convicted of Assault With A Deadly Weapon with Intent to Kill Resulting in Serious Injury for which he received a 3 year concurrent sentence. On November 10, 1975, he was convicted of Attempted Escape From Prison for which he received a 4 month concurrent sentence. On October 14, 1980, he was con- victed of Assault with a Deadly Weapon Inflicting Serious Injury and received a 12-month concurrent sentence. On July 11, 1983, while incarcerated at Central Prison, Inmate Mitchell assaulted two inmates, Harold Waddell, and Vernon Talbert in the dayroom. On September 20, 1984, he was convicted in Wake County Superior Court for these assaults. In Case No. 83-CRT-49597, he was convicted of Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury. For this conviction, he was sentenced to 20 years in the custody of the Department of Correction with the sentence to begin at the expiration of all sentences. In Case No. 83-CRS-49596, he was convicted of Assault With A Deadly Weapon With Intent To Kill Inflicting Serious Injury. For this conviction, he received a sentence of 10 years in the custody of the Department of Correc- tion with the sentence to begin at the expiration of all sentences which he was obligated to serve, and specifically, at the expiration of sentence imposed in Case No. 83-CRS-49597. Inmate Mitchell has incurred 76 infractions of prison rules since his admission to prison. A copy of Inmate Mitchell’s history card documenting the infractions is attached to this Af- fidavit, marked Exhibit A, and included as a part hereof. Inmate Mitchell was housed at Central Prison from January 5, 1982 through March 14, 1986 when he was transferred to Caledonia Correctional Institution. On one occasion, while Inmate Mitchell was out to court in Wake County, he took a weapon from an officer in the courthouse. Obviously, Inmate Mitchell has an extremely assaultive history and was a threat to staff and inmates while housed at Central Prison. In July, 1983, Inmate Mitchell was assigned to maximum custody at Central Prison. The Division of Prisons, at that time, had four custody levels: minimum, medium, close and maxi- mum. Maximum was the most stringent custody level in terms of security. Inmate Mitchell was also assigned to Intensive Manage- ment. At that time, the purpose of intensive management was to isolate inmates that posed an imminent threat to the life or health of other inmates or staff of the unit or institution involved. (The Division of Prisons abolished the status of "intensive manage- ment" effective December 1, 1984.) On July 11, 1983, Inmate Mitchell committed an assault on two inmates in he day room.’ A copy of the incident report documenting the assault is attached to this Affidavit, marked Exhibit B, and included as apart hereof. As a result of this assault, Inmate Mitchell was placed in restraints anytime he was to come out of his cell. On July 24, 1983, Inmate Mitchell, while in restraints in the dayroom on BC2A, picked up a broom and began beating on the control station window. A copy of an office memorandum documenting this incident is attached to this Af- fidavit, marked Exhibit C, and included as a part hereof. On July 25, 1983, Bobby R. Watson, Assistant Superintendent of Opera- tions at Central Prison, made a request to Mr. R. B. Seymour, Program Director I in charge of classification, that Inmate Mitchell needed further restrictions placed on him in order to control his behavior. Subsequently, Inmate Mitchell’s out of cell privileges were restricted to allow him only come out of his cell in order to take a shower each day. This action was approved by Mr. J. Dwight Sanderford, Assistant Director of Prisons, who was the final approving authority. The restrictions wefe reviewed in October, 1983. The final approving authority determined that the restrictions were still warranted based on Mitchell’s behavior. The restrictions were lifted in February, 1984. However, as of February, 1984, Inmate Mitchell still presented an imminent threat to other inmates and staff. Therefore, he was retained in maximum custody, on intensive management status. Inmate Mitchell’s custody and intensive management status were again reviewed on September 10, 1984. The final approVing authority, A4 Gene T. Cousins, determined that Inmate Mitchell should be retained on intensive management in maximum custody. On February 26, 1985, Inmate Mitchell was in the dayroom when he refused instructions by the officer to go back to his cell. Mitchell picked up a mop wringer and started beating on the window to the control station. Therefore, Associate War- den for Operations, Mr. Bobby R. Watson, again referred Inmate Mitchell to classification authorities and recommended that In- mate Mitchell not be allowed out of his cell except to shower each day. This recommendation was considered by the classification committee. The final approving authority, Gene T. Cousins, approved the recommendation. Therefore, Inmate James Mitchell was only allowed outside of his cell once a day to shower. Subsequently, Inmate Mitchell’s classification status was reviewed in October, 1985, and March, 1986. Inmate Mitchell was transferred to Caledonia on March 14, 1986. In his complaint Inmate Mitchell alleges that he was harassed by prison officials. I absolutely deny this allegation. I have never harassed Inmate Mitchell nor have I discriminated against him. The restrictions that were placed on Inmate Mitchell while he was incarcerated at Central Prison were only a conse- quence of his own violent and assaultive behavior. When his own behavior showed improvement, some of the restrictions placed on Inmate Mitchell were lifted. This is shown by the classifica- tion action in February, 1984, when his outdoor exercise period and ability to use the law library were retumed to him. Again, in 1985, he threatened the officer in the control station with a mop wringer by beating it against the window. Again restrictions were necessary to control his violent behavior. As Warden of Central Prison, it is my responsibility to protect the safety of the lives of inmates and staff assigned to this prison. Inmate Mitchell, for . periods of time, was restricted to his cell except to shower. This action was justified in order to protect inmates and staff from further assaults by Inmate Mitchell. Inmate Mitchell was showered in full restraints. This was necessitated by his own history of assaultive behavior. During the periods of time that Inmate Mitchell was restricted from going to the law library, he was allowed to request law library materials and have them provided to him in his cell. In conclusion, I deny that I have ever acted in a manner intended to deprive this inmate of any rights secured to him by the Constitution of the United States or federal law. This the ___]__ day of July, 1986. /s/NATHAN A. RICE Affiant Sworn to and subscribed before me this the 1 day of July, 1986. /s/ Michael J. Lamm Notary Public My Commission Expires: April 13, 1991 EXHIBIT A ca aaa ileal A6 4690-383-21157-OS JAMES CALVIN MITCHELL TYPE/CUST: MAX ALIAS: ADM DATE: 12/18/73 ADR: 400 SYLVANIA AVE CURR LOC: CALEDONIA 3305 SEG: A/S CHARLOTTE 28206 ADMTLOC: POLK 3925 RACE: BLACK SEX: MALE FPC: 18PM101515D117151516TYPE REL: DOB: 11/01/57 FBI: 0038364M4 LST VIO: 0509/86PROJ REL: 104/30-13 POB: OUT OF STAT PRIOR CONV: 00 TOT VIO: O76COUTY REL: MECK 60 RES: MBCKLEN BURG SBI: BSC/ABS: 095-75ANALYST: kARASOW HGT: 5°7" OLN: TOT BSC: 001 1/3 SPEC: 000/00 WGT: 140 OLS: TOT DET: 000 PAR ELIG: 09/18/79 HAIR: BLACK MAR: MARRIED STUDY R:PAR REFER: 01/06/87 EYES: BROWN OCC: STUDENT WORK R:COMP TYPE: SMT: EDUC: 09 GAIN TM: COMP ST: SOC: 238-04-9750 GOOD TIME LOST CURR.SENT: 01060TCMNSL: 35-00-00 TOT RELATIVE: ELEANOR MITCHELL MOTHER TCMXSL: 70-00-00 SENT 07 ADDRESS: COMSER P: 000/00D CURR CRIME: CONV CNTY F BEGIN SENT SENT REL REL JAIL SENT SENT 01 MURDER 2ND 121773 MECK F DATE MIN MAX MIN MAXCRED TYPE 121773 300000 000000 043093 0000000 000 DATE CONV M PF |-PFORWARD 2-BACKWARD 3-IST SENT 4-DOC MENU W/DOC 5-DOC MENU 9-MAPP 10-MASTER MENU !!1-NAME MENU SENTENCE SCRBEN-ACTIVE FILB 0606/86 09:53:58 M4690-383-21157-OS JAMES CALVIN MITCHELI. 3305 CALE MAX SENT 0! OF 07 CMTD MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOF: CONCW: HOLD: 02SQ: 02 SMAX: 00-00 ADM: 12/18/73 BEG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 0000 RULE VIOL 050986 3305 MAX 030DAYS MAJ 19 SET FIRE, EXPLOS DEVICE RULE VIOL RULE VIOL 041986 3305 MAX OOO DAYS MAJ 38 PROFANE LANG/GESTURE/ACT 031486 3305 ASS OFF 00000 031186 3100 MAX CUST REV 080186 TYPE: CUST 111385 3100 MAX 030DAYS MAJ 26 ASSAULT 111385 3100 MAX CUST REV 040186 TYPE: CUST 072385 3100 MAX 000 DAYS MAJ 39 DISOBBY PRISON OFFICIAL 072285 3100 MAX 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT 061085 3100 MAX 030 DAYS MAJ 39 DISOBEY PRISON OFFICIAL 060685 3100 MAX 030 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT 040385 3100 MAX CUST REV 043085 TYPE: CUST 022685 3100 CLOSE 030 DAYS MAJ 33 DAMG/DSTRY/LOSE PROPERTY 021785 3100 CLOSE 000 DAYS MAJ 39 DISOBEY PRISON OFFICIAL 020685 3100 CLOSE TO MAX CUST REV 080685 TYPE: CUST 1115843100 MAX 000 DAYS MAJ 18 POSSESSING ANY WEAPON PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT SENTENCE SCREEN-ACTIVE FILE 06/6/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 01 OF 07 CMTD: MURDER SBCOND DBGREE F MECK SUPER 00CRO00000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOF: CONC W: HOLD:02SQ: 02 SMAX: 00-00 ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0040/00 REST: 00000 RULS VIOL 092184 3100 MAX O30DAYS MAJ 18 POSSESSING ANY WEAPON RULE VIOL 041684 3100 MAX OOODAYS MAJ 39 DISOBEY PRISON OFFICIAL RULE VIOL 040584 3100 MAX O30DAYS MAJ 18 POSSESSING ANY WEAPON RULE VIOL 122483 3100 MAX O30DAYS MAJ 19 SET FIRE, EXPLOS DEVICE OUT TO COURT 121283 SUPERIOR WAKE RULE VIOL 092283 3100 MAX 030DAYS MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 0724833100 MAX O030DAYS MAJ 39 DISOBBY PRISON OFFICIAL RULE VIOL 0711833100 MAX O30DAYS MAJ 26 ASSAULT . RULE VIOL 0516833100 MAX OISDAYS MAJ 38 PROFANE LANG/GESTURE/ACT COMMENT 040183 NEW PRISON POLICY FOR TIME CREDIT RULE VIOL 0402833100 MAX 030DAYS MAJ 18 POSSESSING ANY WEAPON CUSTODY 0616823100 CLOSE TO MAX CUST REV 121682 COMMENT 020182 NEW PRISON POLICY POR TIME CREDIT COMMENT 23181 GOOD TIME POR PAR ELIG 0982 DAYS COMMENT 123181 G OOD TIME POR PAR ELIG 09862 DAYS PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. SENTENCE SCRBEEN-ACTIVE FILE 0606/86 09:54:49 M4690-383-21157-OS JAMES MITCHELL 3305 CALE MAX SENT 01 OF 07 CMTD MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT REPORTED JAIL: GAIN: EXP OF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00 ADM: 12/18/73 BBG: 12/17/73; MIN: 30-00-00 EX MIN: 04/30/93 CONV. 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/000 REST: 00000 RULE VIOL 111681 3940 CLOSE 000 DAYS MAJ 26 ASSAULT SEGREGATION 111681 4465 ASS OFF 010582 SBGRBEGATION 100281 4465 D/S OFF 102981 RULE VIOL 092481 3940 CLOSE 030 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 091881 3940 CLOSE 030 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 072381 3940 CLOSE 000 DAYS MAJ 20 FIGHTING (BODILY INJURY) SEGREGATION 071581 4465 DAS OFF 082181 RULE VIOL 070281 3940 CLOSE 000 DAYS MAJ 39 DISOBEY PRISON OFFICIAL RULE VIOL 062281 3305 CLOSE 000 DAYS MAJ 18 POSSESSING ANY WEAPON SBGREGATION 0603813305 D/S OFF 062581 RULE VIOL 052481 3305 CLOSE 030 DAYS MAJ 39 DISOBEY PRISON OFFICIAL CUSTODY 030481 3100 MAX TO CLOSB CUSTODY 071080 3940 CLOSE TO MAX =CUST REV. 011081 RULE VIOL 062380 3940 CLOSE 030 DAYS MAJ 26 ASSAULT RULE VIOL 060780 3940 CLOSE 030 DAYS MAJ 26 ASSAULT PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. SENTENCE SCRBBN-ACTIVE PILE 060686 _ Saag 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305CALE MAX SENT 0! OF 07 CMTD MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00 ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0000/00 REST: 00000 RULE VIOL 030480 3310 CLOSE 030 DAYS RULE VIOL 022380 3310 CLOSE 030 DAYS RULE VIOL 021980 3310 CLOSE 030 DAYS GAIN TIME 021980 GAIN TIME 020580 GAIN TIME 010980 RULE VIOL 010980 3310 CLOSE 030 DAYS RULE VIOL 010980 3310 CLOSE 030 DAYS GAIN TIME 22779 RATE 2 RULE VIOL 122579 3310 CLOSE 000 DAYS GAIN TIME 121979 RULE VIOL 121179 3310 CLOSE 030 DAYS RULE VIOL 121079 3310 CLOSE 000 DAYS GAIN TIME 12079 RATE 2 RULE VIOL 102579 3310 CLOSE 000 DAYS RATE 2 MAJ 39 DISOBEY PRISON OFFICIAL MAJ 10 DISORDERLY CONDUCT MAJ 26 ASSAULT MAJ 38 PROFANE LANG/GESTURE/ACT MAJ 39 DISOBEY PRISON OFFICIAL MIN 39 DISOBEY PRISON OFFICIAL MAJ 39 DISOBEY PRISON OFFICIAL MIN 39 DISOBEBY PRISON OFFICIAL MAJ 38 PROFANE LANG/GESTURE/ACT PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. SENTENCE SCREEN-ACTIVE FILE 06066 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT01 OF 07 CMTD MURDER SBCOND DEGREE F MECK SUPER 00CRO00000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00 ADM: 12/18/73 BEG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0000/00 REST: 00000 GAIN TIME 100979 RULE VIOL 100879 3310 CLOSE 030 DAYS RULE VIOL 100179 3310 CLOSE 000 DAYS RULE VIOL 100179 3310 CLOSE 030 DAYS RULE VIOL 092179 3310 CLOSE 000 DAYS GAIN TIME 082979 RATE 2 GAIN TIME 082079 RULE VIOL 082079 3310 CLOSE 030 DAYS GAIN TIME 081479 RATE 2 GAIN TIME 080479 RULE VIOL 080479 3310 CLOSE 030 DAYS GAIN TIME 070979 RATE 2 RULE VIOL 062779 3310 CLOSE 030 SUSP RULE VIOL 050779 3310 CLOSE 000 DAYS RULE VIOL 041779 3310 CLOSE 030 DAYS MAJ 39 DISOBEY PRISON OFFICIAL MAJ 39 DISOBEY PRISON OFFICIAL MAJ 38 PROFANE LANG/GESTURE/ACT MIN 39 DISOBEY PRISON OFFICIAL MAJ 39 DISOBEY PRISON OFFICIAL MAJ 18 POSSESSING ANY WEAPON MAJ 39 DISOBEY PRISON OFFICIAL. MIN 39 DISOBEY PRISON OFFICIAL MAJ 39 DISOBRY PRISON OFFICIAL PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 1!-NAME ENTER- CONT. SENTENCE SCREEN-ACTIVE FILE 060686 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT01 OF07 CMTD: MURDER SECOND DEGREE F MBCK SUPER 00CR000000 JUDGE: NOT JAIL: GAIN: EXPOP: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00 ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093 09:54:49 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 00000 RULE VIOL 041779 101979 3310 CLOSE 015 DAYS 101178 100378 3310 CLOSE 030 DAYS 100378 091978 3310 CLOSE 000 DAYS 081178 061578 011878 3310 CLOSE 000 DAYS 121777 120977 3310 CLOSE 000 DAYS 112177 3310 CLOSE 030 DAYS 112177 100577 3310 CLOSE 000 DAYS 091477 3310 CLOSE 030 DAYS MAJ 18 POSSESSING ANY WEAPON MAJ 24 ESCAPING MAJ 39 DISOBEY PRISON OFFICIAL MAJ 03 PEIGN ILLNS TO AVOID WRK PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. SENTENCE SCREEN-ACTIVE FILE 060686 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENTO! OF07 CMTD: MURDER SBCOND DEGREE F MBCK SUPER 00CR000000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 SMAX: 00-00 \ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 00000 RULE VIOL RULE VIOL GAIN TIME CUSTODY RULE VIOL RULE VIOL RULE VIOL RULE VIOL “ULE VIOL RULE VIOL RULE VIOL RULE VIOL GAIN TIME RULE VIOL RULE VIOL 081777 3310 CLOSE 010 DAYS 050977 3310 CLOSE 000 DAYS 042877 042277 0000 MED 032977 3925 MED 030 DAYS 031777 3925 MED 000 DAYS 031177 3925 MED 000 DAYS 021677 3925 MED 030 DAYS 021577 3925 MED 000 DAYS 010177 3925 MED 000 DAYS 121276 3925 MED 030 DAYS 082476 3805 MED 000 DAYS 071576 061676 3805 MED 000 DAYS 060876 3805 MED 000 DAYS MAJ 39 DISOBEY PRISON OFFICIAL MAJ 39 DISOBEY PRISON OFFICIAL RATE 2 MAJ 33 DAMG/DSTRY/LOSE PROPERTY MIN 39 DISOBEY PRISON OFFICIAL MIN 39 DISOBEY PRISON OFFICIAL MAJ 38 PROFANE LANG/GESTURE/ACT MAJ 38 PROFANE LANG/GESTURE/ACT MIN 39 DISOBEY PRISON OFFICIAL TRANSFERRED MIN 26 ASSAULT MIN 39 DISOBEY PRISON OFFICIAL PF 4-MENU W/DOC S-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. Al0 SENTENCE SCREEN-ACTIVE FILE 060686 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENTO! OF 07 CMTD: MURDER SECOND DEGREE F MBECK SUPER 00CR000000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02 S MAX: 00-00 ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/0000 REST: 00000 GAIN TIME 052576 RATE 2 RULE VIOL 030676 3805 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 090575 3905 MED 000 SUSP MAJ 24 ESCAPING CAPTURE 090575 3905 ESCAPE 090575 3905 MED RULE VIOL 020375 3905 MED 000 DAYS MAJ 26 ASSAULT RULE VIOL 092174 3905 MED 000 SUSP MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 091574 3905 MED 000 DAYS MAJ 26 ASSAULT RULE VIOL 082074 3905 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 070974 3905 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 020774 3905 MED 000 DAYS MAJ 26 ASSAULT CERTIFI- CATION 012574 CANC US MARSHALL ASHEVILLE NC RULE VIOL 011474 3905 MED 000 DAYS MAJ 38 PROFANE LANG/GESTURE/ACT RULE VIOL 010874 3905 MED 000 SUSP MAJ 39 DISOBEY PRISON OFFICIAL JAIL CREDIT 121773 158 DAYS PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 01 OF 07 CMTD: MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: (2S MAX: 00-00 ADM: 1! 2/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/30/93 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 0000/00 REST: 00000 SENTENCE SCREEN-ACTIVE FILE 066/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 0! OF 07 CMTD: MURDER SECOND DEGREE F MECK SUPER 00CR000000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOF: CONC W: HOLD: 02 SQ: 02S MAX: 00-00 ADM: 12/18/73 BBG: 12/17/73 MIN: 30-00-00 EX MIN: 04/3093 CONV: 12/17/73 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/000 REST: 00000 PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. | » SENTENCE SCREEN-ACTIVE FILE 060686 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 03 OF 07 ASSAULTS F MBCK SUPER 00CRO000 00 JUDGE: NOT REPORTED JAIL: GAIN: EXPOP: CONC W: HOLD: 02 SQ: 04S MAX: 00-00 ADM: 12/18/73 BBG: 0000/00 MIN: 03-00-00 EX MIN: 00/00/00 CONV: 04/23/75 REL: 104/30/13 MAX: 00-00-00 EX MAX: 00/000 REST: 00000 SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 04 OF 07 ESCAPE PRISON F MBCK SUPER 00CRO00000 JUDGE: NOT REPORTED JAIL: GAIN: EXPOPF: CONC W: HOLD: SQ: 05S MAX: 00-00 ADM: 12/18/73 BBG: 000/00 MIN: 00-04-00 EX MIN: 0000/00 CONY: 11/10/75 REL: 104/30/13 MAX: 00-00-00 EX MAX: 000000 REST: 00000 PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. SENTENCB SCREBN-ACTIVE FILE 06/06/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 0S OF 07 AWDWISI F CASH SUPER 80CR001262 JUDGE: CHARLES T. KIVETT JAIL: 000 GAIN: EXPOF: 01 CONC W:02 HOLD: SQ: 06 SMAX: 00-00 ADM: ‘2/18/73 BBG:00/00(0 MIN: 00-00-00 EX MIN: 00/0000 CONV: 10/14/80 REL: 104/30/13 MAX: 00-12-00 EX MAX: 00/0040 REST: 00000 PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. Al12 SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 06 OF 07 AWDWWITKISI F WAKE SUPER 83CRO49 7 JUDGE: H V BARNETT JAIL: 000 GAIN: EXPOF:02 CONC W: HOLD:07 SQ: 07 SMAX: 00-00 FR-F ADM: 09/20/84 BEG: 104/30/98 MIN: 00-00-00 EX MIN: 00/00/00 CONV: 09/20/84 REL: 104/30/13 *MAX: 20-00-00 EX MAX: 104/30/03 REST: 00000 COMMENT 082685 NO ERROR BY CRT OF APPEALS PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 1!1-NAME ENTER- CONT. SENTENCE SCREEN-ACTIVE FILB 0606/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 07 OF 07 AWDWISI F WAKE SUPER 83CR049596 JUDGE: H VY BARNETT JAIL: 000 GAIN: EXPOF:06 CONC W: HOLD: SQ: SMAX: 00-00 FR-H ADM: 12/18/73 BBG: 104/30/08 MIN: 00-00-00 EX MIN: 00/00/00 CONV: 09/20/84 REL: 104/30/13 *MAX: 10-00-00 EX MAX: 104/30/13 REST: 00000 COMMENT TRANSFER TRANSFER TRANSFER TRANSFER TRANSFER TRANSFER TRANSFER TRANSFER 082685 031486 3100MAX TO 3305 010582 3940 CLOSE TO 3100 062581 3305 CLOSE TO 3940 030481 3100-MAX TO 3305 073080 3940 CLOSE TO 3100 051380 3100 CLOSE TO 3940 043080 3940 CLOSE TO 3100 031980 3310 CLOSE TO 3940 NO ERROR BY CRT OF APPEALS TRANSFER TRANSFER TRANSFER TRANSFER 042777 3925 MED TO 3310 120776 3805 MED TO 3925 120376 3925 MED TO 3805 102876 3805 MED TO 3925 TRANSFER 072276 3100 MED TO 3805 TRANSFER 071576 3805 MED TO 3100 PF 4-MENU W/DOC 5-MENU 6-BASE 7-NEXT SENT 9-MAPP 10-MASTER 11-NAME ENTER- CONT. SENTENCE SCREEN-ACTIVE FILE 0606/86 09:54:49 4690-383-21157-OS JAMES CALVIN MITCHELL 3305 CALE MAX SENT 07 OF 07 AWDWISI F WAKE SUPER 83CR049596 JUDGE: H V BARNETT JAIL: 000 GAIN: EXPOF:06 CONC W: HOLD: SQ: SMAX: 00-00 FR-H ADM: 12/18/73 BEG: 104/308 MIN: 00-00-00 EX MIN: 00/000 CONV: 09/20/84 REL: 104/30/13 *MAX: 10-00-00 EX MAX: 104/30/13 REST: 00000 TRANSFER 012276 3905 MED TO 3805 TRANSFER TRANSFER TRANSFER TRANSFER Al3 EXHIBIT B OFFICE MEMORANDUM TO: G.E. Currie, Captain DATE: July 13, 1983 FROM: /s/R.G. West, Lieutenant RE: Incident Report Assault of Inmates Harold Waddell 10163-41 Vernon Talbert 10753-0S On July 11, 1983 at approximately 10:15 a.m:, while the lower level of 2A Westside was having dayroom privileges, Officer Jernigan who was working BC2A observed Inmates Willie Granford, 20952-80 and James Mitchell 21157-0S assaulting Inmates Vernon Talbert 10753-0S and also Harold Waddell 10163-41 with homemade weapons (shanks). He immediately used his intercom and advised OC3 that he had a fight in the dayroom and to send some help in a hurry because the Inmates had weapons. Sgt. Richardson who was working OC3 immediately called me in the Lieutenant’s Office and also stopped Officer Brooks and Boyd who were enroute to the hospital with an IM Inmate and told them to report to 2A. Officer Brooks left Officer Boyd with the Inmate and ran down the hall toward 2A, slowing down at the Sergeants Office long enough to get Sgt. Alford. I immediately called Captain Currie’s Office, Lt. J. V. Fogg answered the phone and I instructed him to send all available help from the east side to 2A, that a fight was in progress. I then ran to 2A dayroom, Sgt. Alford, Officers Brooks and Douglas were already at the scene. All Inmates were in their cells when I arrived with the exception of the victims. Inmate Waddell was lying against door 89 (inside sallyport door on 2A Westside) causing it to jam, so we had to Al4 use the eastside entrance and go through the lower level emergency exit door to get to the scene. I immediately went to the victims and observed both bleeding profusely, I instructed Officers Jernigan and Cole (Mr. Cole was working 1A and came upstairs to help) to get medical aid and some stretchers. Officer Cole stated he had already called the First Aid Room and that nurses were on their way. Nurses Morgan and Baker arrived shortly and were able to enter from the Westside, Inmate Waddell had moved some and door 89 would open without difficulty. They rendered first aid until the stretchers arrived, then they accompanied the victims to the Acute Hospital, where they were treated and admitted to the Intensive Care Unit. I then instructed Sgt. Hill and Sgt. Alford to use the Officers that were on the scene to search all inmates and cells on the Westside on 2A. A total of four (4) homemade weapons were found, they are being kept by Sgt. Alford as evidence. The weapons were found in the following Inmates Cells: 1. Willie Granford 20952-80 AL-201, 2. James Mitchell 21157-OS AL-207, 3. Demorris Carter 20054-33 AU-207, 4. Claudie Carter 20451-25 AL-205. I then began my investigation, there were five (5) inmates in the dayroom when the assault occurred. They were the victims, the assailants and Josh Matthews (he did not participate). Two (2) other Inmates are housed on the lower level but are currently on cell lock-up. They are Kenneth Cherry and Claudie Carter. Pictures were taken of the dayroom area, they will be attached. I was unable to get pictures of the victims due to the emergency medical attention needed to stop their loss of blood. I talked privately with every Inmate housed on the Westside of 2A, Upper and Lower levels. Everyone seemed to think this was something planned by the assailant and it seeius they kept it quiet, because no one knew about it. It appears there had been no argument, or negative feeling between the assailants and the victims. On July 12, 1983 I questioned the victims in the ICU, Inmate Waddell was very sarcastic and disrespectful, Inmate Talbert (has only been at CP about a week) stated he didn’t even know the assailants, and could offer no explanation for the assault. I then questioned some Inmates on B-Block who had recently moved from A Block, they could offer nothing of benefit. aerate ent Al5 Next I got written statements from all staff involved. Officer Jernigan who was working in BC2A stated the first thing he saw was inmate Willie Granford attack Harold Waddell with a long shiny object. As he was using his intercom to contact Sgt. Richardson to send help he observed James Mitchell attack Vernon Talbert with a shorter weapon. Officer Cole who was working 1A heard Officer Jernigan calling for help and came upstairs to help and he called FAR for medical help. Both Officer observed the assault and observed Inmate Granford beat- ing the victims about the head with a mop bucket. The Officers state that they pounded on the glass to get the Inmates attention and gave them several direct orders to stop fighting. Officer Jernigan observed Officer Douglas standing in the hallway near the Chaplains Office (he was escorting some Death Row Inmates) and yelled to him that he had a fight to get some help. He went to the Westside of 2A and observed both assailants striking both victims. He started after some help but saw Sgt. Alford and Officer Brooks coming. When Sgt. Alford and Officer Brooks reached the westside of 2A, the outside door (88) to the sallyport was open, but the inside door (89) would not open, Inmate Waddell was lying against it and had it jammed, they observed Inmate Granford and Mitchell stab the victims several times. Realizing that door 89 would not open they went through the eastside and used the lower level emergency door to gain entrance to the Westside dayroom, When they arrived the assailants had stopped their attack and were going into their cells. While talking to the Inmates I got several conflicting bit and pieces of information (1) Both of the Victims are white, it seems that Inmate Waddell stabbed a Black Inmate recently while at Blanch Prison by the name of Gus George, and Talbert stabbed an Inmate Dennis Oaks very recently while assigned to Avery County. This is their reason for being in Maximum Custody, on Intensive Management and as- signed to Central Prison. Al6 (2) It seems Inmate Granford has a clique going with several other black Inmates housed on the Westside of 2A and he is quiet disturbed because there are no homosexuals on this block. He has written grievances complaining of this. He had directed sexual slurs toward Inmate Waddell in the past but the best I can determine no one including Waddell had taken him serious. Both assailants will be charged Administratively with violations of articles 18, 26 and 39, they are currently on Administrative Segregation pending a hearing by Unit Supt. I have read the Miranda Warning to each assailant and explained their rights, they both acknowledged that they fully understood. They declined to make any statement at this time. I recommend that both assailants be kept in full mechanical restraints anytime they are out of their cells. My reasoning for this is that I fully think this assault would have been fatal had their weapons and timing been better. If additional information is needed please advise. Attachments Pictures (6) Hospital Emergency Room Report (2) Statements of Witnesses OK /s/ illegible 7-14-83 Al7 EXHIBIT C OFFICE MEMORANDUM TO: Capt. H.M. Godfrey DATE: 7-24-83 FROM: /s/ Lt. E.E. Hodge RE: Inmate James C. Mitchell M4690-383-21157-0S OFFENSE REPORT My investigation revealed on 7-24-83, around 6:40 p.m., Officer Grant, who was assigned to BC2A, observed Inmate James C. Mitchell, who was in the East side dayroom in full restraints, come up to the BC Station. Mitchell began to question Officer Grant on the provisions of a memorandum set forth by Supt. Watson that states the food passage doors on the doors of Disciplinary lock-up in- mates will remain closed unless in use. Officer Grant explained to Mitchell he was observing the memorandum, whereas he didn’t want to argue with Mitchell over it. Mitchell became unruly and wanted to argue some more, but Officer Grant walked away from the front of the Station. Inmate Mitchell, seeing Officer Grant had walked away from him, yelled for Officer Grant to return to the front of the Station so he could talk to him. When Officer Grant refused, Mitchell picked up a broom that was in the day room and began banging on the Lexan glass with the broom handle, stating he wanted to see the Sgt. Of- ficer Grant immediately told him to stop beating on the glass whereas Mitchell told Grant he didn’t want to hear that shit and con- tinued to bang on the glass with the broom. Mitchell became persist- ent end continued to bang on the glass. Officer Grant at this time Al8 called the Sgt. by phone to explain the problem he was having. Mitchell seeing Officer Grant on the phone, stopped banging on the glass. I questioned Inmate Mitchell about the incident. Mitchell eventually admitted to me that he did in fact bang on the glass with the broom but it was only after the Officer had turned his back on him. I care- fully explained to Mitchell the proper avenue to take to air a com- plaint. I chose to advise Mitchell of his rights and inform him I was charg- ing him with Section 39. Mitchell refused to sign, make, or have anyone else submit a statement in his behalf. Mitchell was tcld that he would remain as is, disciplinary lock-up, pending a Supt. hearing. Al9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION NO. 86-235-CRT FILED Jul 20 1987 JAMES CALVIN MITCHELL Plaintiff v. GOV. JAMES MARTIN, NATHAN RICE, BOBBY WATSON, BOB SEYMOUR Nee Ne ON Ne Ne ee ees we GS Defendants Plaintiff, a state court prisoner in the custody of the North Carolina Department of Correction and housed at the time of the matters in question at Central Prison in Raleigh, has brought this civil rights action pursuant to 42 U.S.C. § 1983, in which he alleges violations of his constitutional rights. Specifically, the plaintiff contends that: (a) He has been deprived of an opportunity to have a proper shower because prison officials put him in full restraints; (b) He has been denied any kind of recreational activities outside his cell and, furthermore, that he has been denied daily sunshine and fresh, outside air; (c) He has been denied permission to clean his prison cell daily with needed equipment such as broom, mop, etc.; (d) He has been denied the use of the Central Prison law library for reasons unjustified, which denies him access to the courts; (¢) He has been exposed to cruel and unusual punishment and inhumane and sadistic treatment without reasonable justifica- tion; (f) He has been denied due process because he was placed in intensive management lockup by an inter-prison committee, and his only counsel was a staff member of the prison system. Therefore, he was denied effective counsel and denied due process. (g) Prison officials have demonstrated unjust discrimina- tion by not responding to his requests; (h) He did not assault or threaten staff or inmates but, rather, he damaged state property when he took a mop wringer and hit the plexiglas window of a guard station several times, making a few scratches and leaving the mop wringer bent; (i) His letters to institution heads have been met with replies of pure disrespect and mockery; and (j) He is being discriminated against mentally, physically, arbitrarily, capriciously, and illicitly. Plaintiff seeks $175,000 in damages for the alleged viola- tions of his rights guaranteed by the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. The defendants seek dismissal of Governor Martin as a defendant and a judgment as a matter of law and a dismissal of the action, alleging that the plaintiff has failed to state any grounds upon which relief can be granted. These motions are now ready for ruling. A. Mootness The defendants contend that allegations in the complaint are moot. Since the prisoner was moved to Caledonia Correc- tional Institution on May 14, 1986, there no longer exists an outstanding case or controversy between the plaintiff and the defendants for which injunctive or declaratory relief is appropriate. See Inmates v. Sheriff Owens, 561 F.2d 560 (4th Cir. 1977). However, his claim for damages would not be moot. B. Dismissal of Governor Martin as a Defendant The defendants contend that the doctrine of respondeat Superior does not apply in civil rights actions in the absence of some sort of personal involvement in the deprivation of constitu- tional rights. A defendant may not be held liable on the theory of implied liability. Liability attaches if conduct directly causing deprivation is done to effectuate official policy or custom for which the official is responsible. Vinnedge v. Gibbs, 550 F.2d 946 (4th Cir. 1977). Govemor Martin had no personal involve- ment in inmate Mitchell’s case and cannot be held liable simply because of his position as Govemor of North Carolina. The defendants’ motion to dismiss Governor Martin as a defendant should be ALLOWED. C. Conditions of Confinement Plaintiff Mitchell contends that the restrictions placed upon his ability to exercise, shower and clean his cell daily have amounted to cruel and unusual punishment. The defendants argue that inmate Mitchell must be in full restraint in maximum security because he assaulted two other inmates in 1983 during his incarceration at Central Prison (see Affidavits of Warden Nathan Rice and Bobby Watson), where he was serving a 30-year sentence for second-degree murder and concurrent sentences for armed robbery, assault with a deadly weapon inflicting serious injury, and attempted escape from prison. He received an addi- tional 30 years to begin at the expiration of all other sentences. Inmate Mitchell also incurred 76 infractions of prison rules since his admission to prison, demonstrating extremely assaultive history, and he was a threat to staff and inmates while housed at Central Prison (January 5, 1982, through March 14, 1986). Prison administrators have a responsibility to protect inmates from assaults by other inmates. See Withers v. Levine, 651 F.2d 158 (4th Cir), cert. denied, 449 U.S. 849 (1980). Central Prison officials had a duty to protect other inmates and staff from inmate Mitchell’s assaultive behavior and, therefore, extreme restraint was necessary because of his behavioral history. Prison officials would have been remiss in their duties had they acted otherwise.. Warden Rice also denied in his affidavit that the inmate had been harassed at any time. - Prison officials must also balance their responsibilities to provide prison inmates adequate opportunities to shower, exercise, and clean their ceils with their duty to provide other inmates with a safe living environment. See Sweet v. South Carolina Department of Corrections, 529 F.2d 584 (4th Cir. 1975). Unless the prisoner is confined in a manner which is a ot arte Sh tld htabey wrth Se Ene Mt a A23 “physically barbarous," the proscriptions of the Eighth Amend- ment have not been violated. Estelle v. Gamble, 429 U.S. 97, 5 L.Ed.2d 251, 97 S. Ct. 285 (1976). "Conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional." To the extent that such conditions are restrictive and even harsh, they are part of the penalty criminal o.fenders pay for their offenses against society. Rhodes v. Chap- man, 452 U.S. 337, 347, 69 L.Ed.2d 59, 69, 101 S. Ct. 2392 (1981). Prisoner Mitchell’s past disruptive and dangerous be- havior provides ample justification for the restrictions placed upon him. (See Affidavit of Warden Rice.) To allow him clean- ing items for his cell might have given him more opportunity to use them upon others. He cannot object to his conditions simply because he was not satisfied with them. He was given adequate opportunities to attend to his health and hygiene needs, given his violent tendencies. See Clay v. Miller, 626 F.2d 345 (4th Cir. 1980). Therefore, his requested claim for relief should be DENIED. D. Due Process Considerations The plaintiff claims he was denied due process because he was placed in intensive management lockup by an inter-prison committee. Statements of prison officials (see Affidavits of R. B. Seymour and Bobby Watson) indicate that these changes in classification were a direct result of his disruptive behavior and assaults on others, and they were made by proper procedures in use at the time by the Division of Prisons. Inmate Mitchell was given notice and a proper hearing as to these changes in his classification. When administrative segregation is at issue, due process merely requires that the inmate receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Hewitt v. Helms, 459 U.S. 460 (1983). E. Denial of Access to the Courts Plaintiff contends that he has been denied access to the courts He alleges that he was unjustifiably restricted from the prison law library. States have a constitutional duty to provide reasonable access to the courts. Bounds v. Smith, 430 U.S 817, 52 L.Ed.2d 72, 97 S. Ct. 1491 (1971). North Carolina provides prisoner law libraries to satisfy this requirement, but prison officials may make reasonable restrictions as to the operation of these libraries. Again, prison order and the safety of other prisoners is paramount. See Williams v. Leek, 584 F.2d 1336 (4th Cir. 1978). Prisoner Mitchell was a maximum security prisoner who had attacked two other prisoners, grabbed a gun, although un- loaded, from a guard, and struck a prison guard booth. Prison records and affidavits amply demonstrate the necessity of limit- ing the prisoner to the use of legal materials in his cell. This reasonable security measure did not deny him access to the courts. Therefore, the plaintiff failed to show that he was denied due process or that he has been injured by the security restrictions on his on-site use of the prison library. The plaintiff was provided use of legal materials, but his maximum security status neces- sitated restricted access. See Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961). E. Allegations of Discriminati Furthermore, the plaintiff’s allegations of discrimination are conclusory and should be DISMISSED. See White v. Boyle, 538 F.2d 1077 (4th Cir. 1976). $ Zz 4 * CONCLUSION For the foregoing reasons, the plaintiff has failed to state any valid grounds upon which relief can be granted. Therefore, the defendants’ motion for summary judgment should be ALLOWED. THIS MEMORANDUM AND RECOMMENDATION ENTERED this the 17th day of July, 1987. /s/Charles K. McCotter, Ir. CHARLES K. McCOTTER, JR. United States Magistrate I certify the foregoing to be a true and correct copy of the original. J. Rich Leonard, Clerk United States District Court Eastern District of North Carolina By /s/ Lorita K. Pinnix Deputy Clerk UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION FILED Aug 12 1987 NO. 86-235-CRT JAMES CALVIN MITCHELL ) Plaintiff. ) ) v. ) ORDER ) GOVERNOR JAMES MARTIN, ) et al., ) Defendants. ) On 20 July 1987 Magistrate Charles K. McCotter, Jr., filed his memorandum and recommendation with regard to the motion by defendants to dismiss or, in the alternative, for summary judgment. In apt time plaintiff filed objections, and the matter is now before the court for decision. Upon review the court is convinced that the recommenda- tion uf Masistraic McCotter is, in all r ts, in accordance with law. Therefore, the objections of plaintiff to the recommendation are overruled, the court adopts the recommendation of Magistrate Mc- Cotter as its own, and for the reasons set forth in his memorandum the motion by defendants for summary judgment is allowed and this action is hereby dismissed. This 12 day of August, 1987. /s/W. Earl Britt _ W. EARL BRITT United States District Judge I certify the foregoing to be a true and Eastem District of North Carolina By: /s/ (illegible) __ Pee eR aD ee ‘ . 5 ol ye ee eee ere een ee id 6 0 0 A MEOOLE EA | RT A iin cat TE AEN sl Bi Lhe Ne LOA Lait SI espn RD ceil OG a el lavea , Vhabid Herts: toe” : A46 BE. GRIEVANCE REVIEW BOARD RECOMMENDATION (AREA/INSTITU- TIONAL LEVEL) (To be completed within 15 days) This grievance submitted by James C. Mitchell has been reviewed. Refer to attached statement from staff for an official response. Purther action unnecessary. /*/L4. Chamblee KHIR8S Member Member Area Administrator/inst. Head & Date F. AGREE WITH ACTION TAKEN X APPEAL TO INMATE GRIEVANCE COMMISSION /s/ Kasi . Inmate’s Signature & Date revi * I demand a reasonable explaination as to why I am being discriminated against. I was charged with stabbing two inmates and was given | to 30 days in disiplinary segregation and loss of 30 days goodtime. I was also placed in Full Chain Restraints and given 30 years in Wake County Court. I stayed in F.C.R. (Full Chain Restraints) for 1 year. And 6 or 7 months of that year I wasn’t allowed outside my cell other Than visitation or meet one of these prison boards. Now why all this punishment? Another inmate here at Central Prison "killed" a Black inmate name James Harris in COLD BLOOD. The inmate that killed James Harris name is Mark Vechnak who is Caucasain was "Not" placed in Full Chain Restraints nor was Mark Vechnak taken to Wake County Court and tried for premeditated first degree murder, nor was Mark Vechnak placed in disciplinary segregation, nor was Mark Vechnak placed in one of the Intensive Management Lock- up Blocks. What I want to know is why am I being placed in F.C.R. just for taking a mop wringer and hitting the flex glass window of the Control Booth. Now if I am going to be placed in F.C.R. for taking a mop wringer to the Flex Glass of the Control Booth window, then I have no other alternative but to file a U.S.C. 1983 Form and 4 Class Action Suite against this instivution and its Commanders and Personel. Because this what YOU ALL are doing to me is an ACT of Racial Discrimination. N = i OFFICE MEMORANDUM TO: R.B. Seymour, Program Director I DATE: 2-28-85 FROM: /s/ Bobby R. Watson, Associate Warden for Operations RE: Inmate James C. Mitchell 21157-OS - In July, 1983 the DCC restricted the out of cell activities and Law Library privileges of James C. Mitchell due to his assaultive behavior. These restrictions remained in effect until February, 1984 at which time they were removed as a result of his improved conduct. As of this date, I have reinstated these special restrictions pending a referral to you and the DCC. On February 26, 1985, inmate Mitchell was in the dayroom when he refused instructions by the officer to go back to his cell. Mitchell picked up a mop wringer and started beating on the window to the control station. This is the same type action that resulted in the special restrictions being placed on him back in July, 1983. It is my recommenda- tion that the DCC approve a restriction of his Law Library privileges and all other out of cell activities with the exception of a shower each day after which he will be immediately retumed to his cell. The shower will take Place with Mitchell in full restraints. Your prompt attention to this request is appreciated. A49 EXHIBIT Z-3 DC-410 GRIEVANCE FORM Rev. 10/83 M4590-383-21157-O.S. - oo NAMB /s/ Karim Abdul Akbar A.K.A. James C. Mitchell 21157-0S LOCATION_AU-205 = /s/ TL. Porter DATE _2-28-85 . TIME __ Receiving Officer's Signature Date & Time A. GRIEVANCE STATEMENT (Attach additional pages if necessary) See attached page 1 /s/ Kasim Abdul Akbar ..__ A.K.A. James C. Mitchell Inmate's Signature B. EVALUATION (Attach additional pages if necessary) (To be completed within 24 hours) See attached memo A85-2.44 dated 2-28-85. No further action necessary. /s/ James BE, Taylor 10:15 a.m, 3-04- 85 Investigator’s Signature Date & Time C. ACTION RECOMMENDED/TAKEN (To be completed within 5 days) See attached. No further action recommended. /s/ Capt. E.G, Chamblee ._ Superintendent's Signature & Date D. AGREE X APPEALTO AREABOARD /s/ LC,Mitchell 3-5-85 Inmate's Signature & Date // Lt. Carroll __ ' KH. Member Member have Adaieionae oe Hised & Beas F AGREE WITH ACTION TAKEN —X_APPEAL TO INMATE GRIEVANCE COMMISSION /e/ - Inmate's Signature & Date AS1 On tuesday February 26, 1985 I damaged state property. As a result I do "NOT" have shower, dayroom or recreation privileges and have been placed in Special Restraints. I have "NOT" threatened to assault any staff member or prisoner, nor did I assault such persons, nor did I attempt to assault such persons. According to administrative rules and policies 5 NCAC 2C Classification 0303 Conditions of Confinement I am being UNLAWFULLY RESTRAINED. me" = OFFICE MEMORANDUM TO: R.B. Seymour, Program Director I DATE: 2-28-85 FROM: Bobby R. Watson, Associate Warden for Operations RE: Inmate James C. Mitche!l 21157-OS - In July, 1983 the DCC restricted the out of cell activities and Law Library Privileges of James C. Mitchell due to his assaultive behavior. These restrictions remained in effect until February, 1984 at which time they were ‘ removed as a result of his improved conduct. Control station. This is the same type action that resulted in the special restrictions being placed on him back in July, 1983. It is my recommenda- ce: Deputy Warden Dixon AS3 EXHIBIT Z-4 DC-410 GRIEVANCE FORM Rev. 10/83 M4590-383-21157-O.S. NAME /s/ Karim Abdul Akbar _ A.K.A. James C. Mitchell 21157-0S LOCATION AU-205 /s/ TL. Porter 2-28-85 7:27am... DATE 2-28-85 TIME 7:30am. Receiving Officer's Signature Date & Time A. GRIEVANCE STATEMENT (Attach additional pages if necessary) See attached page 1 /s/ Karim Abdul Akbar A.K.A. James C, Mitchell .._ Inmate’s Signature B. EVALUATION (Attach additional pages if necessary) (To be completed within 24 hours) See attached memo A85-2.44 dated 2-28-85. No further action necessary. /s/ Tames E. Taylor 10:15 a.m. 3-04- 85 Investigator’s Signature Date & Time C. ACTION RECOMMENDED/TAKEN (To be completed within 5 days) See attached. No further action. /s/ Capt. E.G. Chamblee Superintendent's Signature & Date D. _ AGREE X APPEAL TO AREA BOARD /s/ LC. Mitchell 3-5-85 Inmate’s Signature & Date . Andee inane nt we Sabla aii, E. GRIEVANCE REVIEW BOARD RECOMMENDATION (AREA/INSTITUTIONAL LEVEL) (To be completed within 15 days) This grievance submitted by James C. Mitchell has been reviewed. Refer to attached statement from staff for an official response. Purther action unnecessary. /s/ Lt. Cosroll _ KH. RBS _ Member Member Area Administrator/Inst. Head & Date F __AGREE WITH ACTION TAKEN ~X_APPEAL TO INMATE GRIEVANCE COMMISSION /s/ Karim Abdul Akbar 3-7-85 Inmate's Signature & Date ASS On tuesday February 26, 1985 I damaged state property. As a result I do "NOT" have shower, dayroom or recreation privileges and have been placed in Special Restraints. I have "NOT" threatened to assault any staff member or prisoner, nor did I assault such persons, nor did I attempt to assault such persons. According to administrative rules and policies 5 NCAC 2C Classification 0303 Conditions of Confinement I am being UNLAWFULLY RESTRAINED. oO eat OPPO ATM. Dhow ns ow 04 \ * OFFICE MEMORANDUM Ss TO: RB. Seymour, Program Director I DATE: 2-28-85 FROM: /s/ Bobby R. Watson, Associate Warden for Operations RE: Inmate James C. Mitchell 21157-OS - AS7 EXHIBIT Z-5 DC-410 GRiEVANCE FORM Rev. 10/83 M4590-383-21157-0.S. NAME /s/ Karim Abdul Akbar LOCATION AU-205 /s/ T.L. Poster DATE ___2-28-85 TIME _ Receiving Officer's Signature Date & Time A. GRIEVANCE STATEMENT (Attach additional pages if necessary) See attached page | /s/ Karim Abdul Akbar A.K.A. James C. Mitchell Inmate's Signature B. EVALUATION (Attach additional pages if necessary) (To be completed within 24 hours) See attached memo A85-2.44 dated 2-28-85. /s/ James E, Taylor/3-5-95/9;00 a.m. . Investigator's Signature Date & Time C. ACTION RECOMMENDED/TAKEN . (To be completed within 5 days) See attached. No further action. /s/ Capt. E.G. Chamblee Superintendent's Signature & Date D. __ AGREE _X_ APPEAL TO AREA BOARD /s/ L.C,Mitchell 3-5-85 Inmate's Signature & Date Ft) agli AS58 (To be completed within 15 days) This grievance submitted by James C. Mitchell has been reviewed. Refer to attached statement from staff for an official response. Purther action unnecessary. bef. KH. —- Member Area Advaelowetoefiaat Had & Dom F AGREE WITH ACTION TAKEN X_APPEAL TO INMATE GRIEVANCE COMMISSION /s/ Kari : eis Inmate's Signature & Date AS9 On tuesday February 26, 1985 1 damaged state property. As a result I do "NOT" have shower, dayroom or recreation privileges and have been placed in Special Restraints. I have "NOT" threatened to assault any staff member or prisoner, nor did I assault such persons, nor did I attempt to assault such persons. According to administrative rules and poiicies 5 NCAC 2C Classification 0303 Conditions of Confinement I am being UNLAWFULLY RESTRAINED. A60 o owe" OFFICE MEMORANDUM TO: R.B. Seymour, Program Director I DATE: 2-28-85 FROM:Bobby R. Watson, Associate Warden for Operations RE: Inmate James C. Mitchell 21157-OS - Referral for Special Restrictions In July, 1983 the DCC restricted the out of cell activities and Law Library privileges of James C. Mitchell due to his assaultive behavior. These restrictions remained in effect until February, 1984 at which time they were removed as a result of his improved conduct. As of this date, I have reinstated these special restrictions pending a referral to you and the DCC. On February 26, 1985, inmate Mitchell was in the dayroom when he refused instructions by'the office to go back to his cell. Mitchell picked up a mop wringer and started beating on the window to the control station. This is the same type action’ that resulted in the special restrictions being placed on him back in July, 1983. It is my recommenda- tion that the DCC approve a restriction of his Law Library privileges and all other out of cell activities with the exception of a shower each day after which he will be immediately retumed to his cell. The shower will take place with Mitchell in full restraints. . Your prompt attention to this request is appreciated. ce: Deputy Warden Dixon Associate Warden Harris Capt. Chamblee Inmate Record file EXHIBIT Z-6 DC-410 GRIEVANCE FORM Rev. 10/83 ‘ M4590-383-21157-0.S. NAME /s/ Karim Abdul Akbar AKA. J, C, Mitchell 21157-0S LOCATION AU-205 ___ /s/ Lt. Nobles 12:08 a.m. 10-15-85 oo... DATE 10-15-85 TIME 12:08 Receiving Officer's Signature Date & Time A. GRIEVANCE STATEMENT (Attach additional pages if necessary) I've been in chains since february, 1985, due to the fact that I hit the Plexis Glass (cont page 1,2,3,4) /s/ LC, Mitchell Inmate's Signature B. EVALUATION (Attach additional pages if necessary) (To be completed within 24 hours) You were placed in Full Restraints due to your assaultive and aggressive behavior. Your case is reviewed every six months by the board and periodically by Associate Warden Watson. /s/ Sgt. (illegible) 10-15-85 1:00 p.m. . Investigator's Signature Date & Time C. ACTION RECOMMENDED/TAKEN (To be completed within 5 days) Agree with Section B. /s/ KE. Parker, Lt, 10-15-82 1:00 pum. . Superintendent's Signature & Bate D. _AGREE X APPEAL TO AREA BOARD /s/ i = ‘ Inmate's Signature & Date Wi Se, E. GRIEVANCE REVIEW BOARD RECOMMENDATION (AREA/INSTITUTIONAL LEVEL) (To be completed within 15 days) The grievance submitted by inmate Mitchell has been reviewed by the Board, refer to Section B for official staff response. No further action recommended. /s/ Li.Camoll K.H 102585 Member Member Area Administrator/Inst. Head & Date FP. AGREE WITH ACTION TAKEN X_ APPEAL TO INMATE GRIEVANCE COMMISSION LC. Mitchell 10-21-85 Inmate's Signature & Date A63 window with a mop wringer. I’ve met different boards. And each time, their excuse for keeping me in chains is because of my behavior when I went to Court in Wake County, and It was said that I attacked a Deputy Sheriff and took his .357 magnum service revolver. And set fire to Wake County Jail. Now I’ve met Mr. Seymour’s board twice and met the D.R.S.C. Board twice. And this last time I met the D.R.S.C. Board, Mr. Seymour was a member of the board. I know there is a conspiracy against me. Because other inmates have assaulted inmates and been placed in chains and out of chain within the next 30 to 60 days. And I know for a fact some of their records are worser than mine. Because I been knowing them for years. But yet in still I’m being held in chains. Only to come out of my Cell for a fifteen minute shower (which I refuse to take in chains. I know its a conspiracy against me. Because an INMATE that I’ve been knowing for years and a few others that I just met told me that 3 sargents and 2 Lt. (whose names I won't mention offered them $100 (ONE Hundred Dollars and a SHANK if they would KILL me when they open my door for a shower (while I’m in chains). IF any fool stab or kill me thats how he got to do it. Or catch me when I’m sleep. These police set James Harris up and got him killed. And they set Willie Grandford up and almost got him killed. They set Billy Clark up and almost got him killed. Now they’re trying to set me up. I’m a MAN and a WARRIOR. I'll walk through the shadow of DEATH (without chains on) and fear no evil. Because ALLAH will guide me in battle. But I won’t walk in chains, knowing I have no way possible to defend myself. And I won’t shower in chains. I ain’t about to rely on no police to save me from getting stabbed up. Not when I know they'll stand back and watch, and have set the whole thing up. They can’t set me up when I’m NOT in chains. Because they know it will be a blood war. I know how to use a shank and I know how to fight with my hands and feet as lethal weapons. I’m not registered, but I know what I can do. So I want to know why I'm being kept in chains other than trying to be set up. I’m NOT going to WALK or SHOWER in chains. If you want me dead. Then let me out of chains. But remember, it take A__ to get A__ and I ain’t run- ning from Sh__. I never have, and never will. If you want me dead so Da_n bad. Then let me out of chains and give your flunkies knives and shanks and send them my oh, NO, I’m not going to attack one da_n soul when I get out of chain. But best not no Da_n soul attack me if he wants to live. Because I'll die for what is mine. And this body is mine for my soul to live in until judgement day. Or until A’.AH says I have to give this body up so my soul can rest until its judgement day. So come on with it. But you better not slip. Because I’m not running and hiding. I don’t fear a ee eee ity man I fear ALLAH. Man can only hurt the body. ALLAH can hurt both soul and body. Karim Abdul Akbar A.K.A./James Calvin Mitichell 21157-O.S. ALLAH-U AKBAR A65 EXHIBIT Z-7 AU-202 DC-410 | GRIEVANCE FORM Rev. 10/83 , M4590-383-21157-0.S. | NAME /s/ James C.Mitchelll 21157- om | LOCATION CENTRAL PRISON /s/ LE. Jeffrey 12-24-85 11:30 DATE 12-24-85 TIME 10:30 Receiving Officer's Signature Date & Time A. GRIEVANCE STATEMENT (Attach additional pages if necessary) I would like to know why these guys in full chain restraint doors are being see attached pages (1,2,3,4) /s/Jomes Calvin Mitchell _ Inmate's Signature B. EVALUATION (Attach additional pages if necessary) (To be completed within 24 hours) The food passage doors for the full restraint inmates are not locked at all times. Your food passage door is locked because of a memorandum wrote by Lt. Polk on second shift 11-14-85. /s/ Sgt. RS. Walker 12-27-85 11:15 a... Investigator's Signature Date & Time C. ACTION RECOMMENDED/TAKEN (To be completed within 5 days) See Section B. /s/ : Superintendent's Signature & Date D. _AGREE X APPEAL TO AREA BOARD /s/ LC.Mitchell 12-31-85 Inmate's Signature & Date A66 E. GRIEVANCE REVIEW BOARD RECOMMENDATION (AREA/INSTITUTIONAL LEVEL) (To be completed within 15 days) Inmate refused to complete sec D - No further action. Your demonstrated behavior has required that the full restraint only be continued. /s/ Lt. Cacroll K.H 1/686 Member Member Area Administrator/Inst. Head & Date F. AGREE WITH ACTION TAKEN ~X APPEAL TO INMATE GRIEVANCE COMMISSION LC, Mitchell 10-21-85 Inmate's Signature & Date A67 moved to this cell at about 7:40 p.m. and due to the amount of personal property I had, It took me until 8:00 to move all my personal belongings from segregation (AL-215) to regular lock- up (AU-202). And the two officers that escorted me while moving didn’t say NOTHING TO ME about the Full Chain Restraint Inmates trap doors being locked at all times. Third shift locked my trap door after breakfast (5:30 or 5:45 a.m.) and told me the Sgt. said my trap door and all Full Chain Restraint Inmates Door are to stay locked at all times. And when Officer Oliver Massey came around passing out shaving razors he told me and the rest of the inmates in Full Chain Restraints the same thing. BUT he also added that EVER SINCE HE WAS BEEN WORK. ING HERE ALL Full Chain Restraints Inmates Trap Doors has always been kept locked. I know that to be a lie. So I questioned Officer Massey. His reply was, and I quote it. Write a grievance I’m only doing my damn job. Well I asked him to call the Sgt. down here and he told me he would go talk to the Sgt. I asked him what Sgt. is working and he said Sgt. Murphy. I asked Massey if he would tell the Sgt. to come down here and he said again. He would talk to Sgt. Murphy. I know who Sgt. Murphy is I think. But I’ve been in this prison ever since it opened and I don’t ever recall hearing Sgt. Murphy being the Sgt. in Charge of A-Block. Its always has been Sgt. Hopskins, Sgt. Barefoot, Sgt. Hill, Lt. Fogg (any regular officers as active sgt.) Azyway I asked Officer W. Johnson the same thing about the trap doors. And he related to me through another inmate that he can’t call the Capt or Lt. but said that Lt. Harris told all the OFFICERS in LINE-UP this moming that ALL FULL CHAIN RESTRAINTS Trap door will remain locked. He also told me that the Sgt. and Lt. is checking on it. And I just ask Officer Massey what the Sgt. Said and he told me that he talked to the Sgt. and the Sgt. and Lt. is checking on it. Well they been checking on it since 7:35 a.m. this moming and its about 12:00 and they’re still checking on it. And the Sgt. Lt. Capt has not made their rounds for the day. I’m not going to fall for no trap by refusing to move my leg or arm so he can lock my trap door. Because thats an unnecessary write-up. And they’ll write me up for disobeying a direct order. As always when they write someone up. So what is the out come of these trap doors of Full Chain Restraint Inmates. Respectfully Written Karim Abdul Akbar A.K.A./James Calvin Mitchell M4690-383-21157-OS December 24, 1985 A69 EXHIBIT Y CATED ae i Serta North Carolina Department of Correction Manual On Exercising te) BO PA Keanna Se chats Sie PE a atta es AL REN RE Rea nt ons ite 0 Be Ua lee BM ie ie Sihane e R sll Central Prison A70 Manual on Exercising For The Incarcerated CENTRAL PRISON HOSPITAL Prepared as a patient education service by the In-Service Education Department of C.P. The Need for Exercise and Physical POU enhancsnncdortecdsentdccssanscéevseveses 1 PED sk ideetbusebaeudeoaclNcekko he chneeeebans 1 Exercise and Physical Fitness Programs ...................4. 2 Guidelines and Recommendations For NE Mg eho ais oe eed ducked vevnackeaues bats 2 PRE SUD kod vena nceues bevteeeeuassean wun 3 Pe SY IN, 6 ok ocn'v0 ceesecesecdandeeeveased 6 TTT eee 6 ee PEUST OTIS TT ET TT epee ee ere TT 13 C. Warmown Bassciess . 0.0.0... cc nsec ceces 20 ROTTEN CETTE ee ET EE PTO Ey Pe ee” 21 | ee eee ee rn errr rr 22 ot PVTTTT TET TTT re rr eer ere 23 ee a ee ee a ee ee A72 Physical activity for an inmate is extremely important to help reduce the weakening of body and mind which would otherwise occur in the idle institutional environ- ° PHYSICAL FITNESS The physical elements that are basic for adult fitness are muscular strength and en- durance, flexibility and cardiorespiratory endurance. Muscular Strength Muscular strength is the ability of a muscle to exert a single, maximal force against a resistance. Lifting the heaviest weight or barbell you can handle at one time is an Placed on the muscles involved in generating the force. Muscular endurance is the ability of a muscle to exert force repeatedly against a resistance or to perform work continually. Lifting a weight several times or doing a maximum number of sit-ups, pull-ups or push-ups are examples of muscular en- durance. The endurance of muscles is dependent upon their strength, condition, and the number of repetitions Placed on the muscles involved. beginner. The length and condition of the muscles, ligaments, and tendons largely determine the amount of movement possible at each joint. A73 Cardiorespiratory endurance is the ability to continue strenuous activity involving large muscle groups for long periods of time. In essence, it is the ability of the heart and lungs to supply oxygen and nutrients to your muscles and to remove carbon dioxide and other waste products. Three of the best examples of cardiorespiratory activities are jogging, swimming and cycling, when done continuously for an extended period of time. Cardiorespiratory endurance is the most essential physical component in adult fitness. EXERCISE AND PHYSICAL FITNESS PROGRAMS One of the most popular and effective programs for developing muscular strength and endurance is the weight training program (use of barbells). Many prisons have developed weight training programs not only because of the value of the program, but also because of their popularity. Some books are listed in the reference which pertain to weight training. An isometrics training program, involving contrection of opposing muscles without movement, resulting in toning and strengthening of muscles, is more practical and applicable for a confined person, but it requires more instruction and motivation. Probably the most effective exercises available would be the traditional calisthenic program plus various other appropriate exercises. Several adult fitness books are listed in the references and would make an excellent supplement for the exercises listed in this monograph. GUIDELINES AND RECOMMENDATIONS FOR EXERCISE PROGRAMS The success of any exercise program depends in great part on the person's following certain guidelines or rules regarding the frequency, intensity, duration and regularity of exercising. Frequency The minimum number of times that one should exercise is 3 to 5 days a week. Daily exercising is recommended. Intensity It is important to begin with light to moderate efforts; then increase work loads and progress to higher levels of exercise as your fitness improves over weeks and months. ee ee eee ae sities A74 Seantesiie af ates A daily regular workout time is important so you can better see the effects of the training. Other guidelines to follow when exercising include: Warm-up - A gradual warm-up is suggested because sudden strenuous exercises can cause muscle pulls and injuries to joints. Workout - The main part of the exercise program is the workout (that is, the time spent in doing your sequence of exercises). Warm-Down- A gradual tapering off period following strenuous activity allows the body to remove excess heat and circulation and respiration to return to their normal states. FITNESS TEST AND EVALUATION Since most jails are not equipped to do compyhensive fitness testing, the fitness test items selected are based on ease of administration, c »st of equipment and time available. The following tests have Proven practical and helpful in assessing adults prior to starting an exercise program. Equipment a. mug or mat on which to do sit-ups. b. clock or watch with sweep second hand or stop-watch MW. The One-Minute Sit-up Test: The inmate starts by lying on his/her back, knees bent at a 90° angle and heels flat on the floor. A partner holds the feet down. The inmate then performs as many correct sit-ups (see Figure 1) as possible in one minute. In the up position, the inmate should touch the elbows to the knees and then return to a full lying position before starting the next sit-up. The total number of sit-ups performed in one minute will translate into a fitness score in the norms table (see Appendix A). This test indicates the general strength and endurance of the muscular system, especially the abdominal muscle group, an area of important concem. Equipment a. one yardstick b. tape or chalk for line. ’ Flexibili The Bend and Reach Test: The inmate sits on the floor with legs extended at right angles to a taped or marked line, as shown in Figure 2. The heels touch the near edge of the line and are about six inches apart. A yardstick is placed between the legs of the subject and rests on the floor with i. the 15 inch mark on the line. The subject slowly reaches forward with both hands as far as possible and holds the position momentarily (knees remain straight). The distance reached on the yardstick by the fingertips is recorded and the best of three trials is the flexibility score to be compared to the norms in the fitness table (see Appendix A). Prior to actual test administration, the inmate can warm-up slowly by practicing stretching. Trunk flexion serves as an important measure of hip and back flexibility and elasticity of the hamstring muscle group. Equipment a. 12 inch bench, step, chair or box (preferably 18 inches wide). b. clock or watch with sweep second hand or stop-watch. mala Contionens lias The Three-Minute Step Test: The inmate starts hy standing on the floor and in front ofa 12-inch high box, bench, chair or step, any of which can be used for the step test. A77 On the signal "begin", the watch is started and one starts stepping on the bench. First the left foot up, then the right foot up, then the left foot down, then the right foot down (see Figure 3). (The count is up, up, down, down). This constitutes 4 counts. Step in cadence at 96 counts per minute or 24 complete step cycles per minute. During the three-minute test, the inmate will make 72 complete stepping cycles. Immediately after the three minutes of stepping, the subject sits down. A 60 second heart rate is counted starting five seconds after completion of stepping. (Heart rate may best be taken on the carotid artery on the side of the throat by counting the beats for ten seconds and multiplying by six to get the rate for one minute.) The heart rate count will give a fitness score to be interpreted with the norms table (see Appendix A). Bench stepping serves as a measure of heart and lung functioning and is a most important measure of adult fitness. BASIC CALISTHENIC PROGRAM By the process of elimination, the best exercise program for a confined person is built around a calisthenic program. Calisthenics are the best conditioners when cost of equipment, facilities, space, time and instruction are considered. Some other con- ditioners are included besides calisthenics. Individuals should record the number of minutes spent daily on each type of exercise (see Appendix B for sample). A. WARM-UP EXERCISES Warm-up exercises should begin gently and gradually progress to more vigorous action as you prepare for the workout. *For unconditioned persons, the warm-up exercises should be adequate for the first two to four weeks, then add Level | of workout. *For all stretching movements, gradually increase the degree of stretch with each repetition and be sure to do them slowly and gently, not abruptly or forcefully. *Do the exercises in the order listed. ee ee ee ed A78 “Je Jumping Jacks: Stand with arms at sides. Jump, spreading feet to the side and at the same time swing the arms overhead; then swing the arms down and jump back to the starting position. Use a rhythmical and comfortable count. Repeat 15 times. Tiunk Twister: Stand, feet comfortably apart, with arms extended out from the sides, palms down. Slowly twist to one side as far as you can go, hold for five counts, and repeat on the other side. Repeat 5 times on each side. rt Forward Bend and Reach: Stand with feet about 18 inches apart, knees slightly bent, arms hanging loosely at the sides. Bend forward, extend the arms between the legs and gently reach to touch the ground at about heel level. Hold for 5 counts, and then come up to a standing position. Repeat 5 times. A80 Shoulder Stretcher: Stand with feet comfortably apart, with the arms bent, hands in front of the chest and the elbows out to the side. Without arching the back, rhythmically thrust the elbows backwards and retum to starting position. Repeat 10 times. Shoulder Roll: Stand with feet comfortably apart, with the fingers of each hand touching the shoulders. Slowly rotate the elbows in a full circle - forward, up, back, and down. Repeat 5 times, then reverse the rotation. A81 -10- Neck Roll: Stand with feet comfortably apart, with hands on the hips. Gently roll the head in a full circle first to one side, then forward, then to the other side, then backward. Repeat 5 times. Reverse the direction for an additional 5 times. RK Knee Lifts: Stand with feet comfortably apart, arms at the sides. Raise one knee to the chest, grasp and gently pull it to the chest, retum and repeat with cther leg. Keep the back straight. Repeat 5 times with each leg. Le A82 Half Knee Bend: Stand with feet comfortably apart, hands on hips. Bend the legs to just short of a 90 degree angle (squat), extending the arms forward for balance as you go down, then ; retum and repeat in a slow moderate pace. Repeat 10 times. tt Toe Touches: Stand with feet together, arms at sides. Keeping the knees slightly bent, lean forward and gently stretch hands toward the toes or floor. Retum and repeat in a slow rhythm. (Caution: do not bob or jerk down to toes.) Repeat 10 times. Ny A83 -12- Sitting Stretcher: Sit on floor, knees extended, your legs spread at approximately a 45 degree angle. Bend fo:ward slowly at the waist. Reach out to the left and try to touch your head to your left knee until you feel stretching pain in the back of the leg. Hold this position for 2 or 3 seconds, then return to starting position. Reach out to the right side and do the same thing. Repeat 5 times to each side. . Slow Jog: Stand in place with arms in a running position. Slowly jog in place or in a small circle for 60 counts or 60 seconds. Count each time the left foot strikes the floor. Begin slowly and pick up the pace gradually every 15 counts or 15 seconds. Speed can be increased as conditioning improves. A84 . PF Deep Breathing: Stand with feet comfortably apart. Slowly swing the arms forward and upward, raise up on the toes and inhale deeply until arms are in an overhead position. Swing the arms down, drop to the heels and exhale as the arms are returned to the starting position. Repeat 5 times. — This workout uses a set of 12 exercises called the Daily Dozen set of exercises and is designed to advance the user through three levels of fitness. The Daily Dozen consists of a set of graduated exercises to be used after the warm-up exercises have prepared you physically and mentally for the workout. During the first week or two, you may be physically able to do only the warm-up exercises because of your present condition- ing. When you feel ready for a complete workout, start with exercise one, Level I, of the Daily Dozen. B. WORKOUT Workouts for this set of exercises include three levels of conditioning. The numbers in the columns to the right indicate how many times you should repeat the exercise for that level of fitness. Work at Level I or the beginning level until your conditioning allows you to complete all of Level I without undue stress. Then progress to Level I, and finally to Level I. A85 « She Toe Touch Series: There are four standing positions for this exercise, starting with the feet at shoulder width, then together, then crossing one foot over the other and finally reversing foot positions. Rhythmically and gently stretch and touch the toes in each of the four positions. Then retum to the starting position. LEVELS (Of Repetition) —— 5 10 15 Squat Jumps: LEVELS (Of Repetition) ae SP 10 20 30 Stand with feet comfortably apart with one foot slightly ahead of the other and put hands behind head with fingers interlocked. Drop down to a half squat position and keep back as straight as possible. Jump to upright position with body straight and feet leaving floor. Reverse position of feet before landing and retum to half squat position. mW ee Te A86 -15. LEVELS (Of Repetition) 10 20 W Place hands on the floor at shoulder width and lean forward with one leg well up under the chest and the other fully extended to the rear. Shift leg positions in a two count thythm. Push-ups: 10 15 2 (Men) Lie face down on floor with hands directly under the shoulder joints, fingers pointing straight ahead. Extend the arms and raise the body in a straight line from head to heels to a fully extended position supported by the arms and toes. Lower the body in a straight line by bending the arms until the chest just touches or comes within an inch of the floor. Repeat in moderate thythm. (Women) Same, except keep the knees in contact with floor throughout the movement. ee A87 -16- LEVELS (Of Repetition) = ae >] w ®@ Static Stretcher: Sit on floor with feet together, hands at sides. Without bending legs, bend truck forward, tuck head, reach forward as far as possible and grasp firmly around legs, ankles or feet according to the extent of your reach. Hold for six seconds, relax and retum to starting position. Squat Thrusts: 10 15 2 Four distinct motions are to be performed in rapid succession. Stand with your hands at your sides, then bend your knees and place your hands on the floor in front of your feet; thrust your legs back to a fully extended position; return to the squat position; then return to the erect position. | Te -1]7. (Of Repetition) — = 5 10 15 Curd-ups: Lie flat on back, legs straight and together and with the arms extending overhead. In one motion, curl up, bring the knees up and wrap the arms around the knees. Return to the starting position. While raising up, roll the head, neck, shoulder, upper and lower back in order. Then unfold in reverse order coming down. OE A er aie See Leg-Overs:; 10 15 20 Lie on back, legs straight and together, arms stretched sidewards at shoulder level, palms down. Lift both legs until they are perpendicular to floor, keeping them straight and toge her. Lower legs to the left and touch the floor. Lift to perpendicular and lower to the right side. Lift again = perpendicular and retum to starting posi- tion. . = Side Leg Lifts: Lie on one side with legs together, head supported by the elbow and hand and the other hand on floor in front of body for balance. With the leg straight, lift it as far as possible and retum to the start- ing posi- tion. Repeat on other side. oe Double Leg Raiser: 10 15 Ww Lie on back, hands under buttocks, palms down, with lower back touching floor. With knees straight, raise both legs to straight up or 90 degree position, then exhale. Lower legs slowly to floor and inhale. re Mitty heheh: ah tte cet: aliiilimiiaks ania, eee ti Ue! ate Nig Low Back Stretcher: Lie on your back with knees straight. Pull one knee to your chest. As you do so, curl your shoulders and head toward the knee. Retum to starting position and repeat exer- cise with other leg. <