Opposition Brief — Rice v. Mitchell

Rupreme Gout, WS

FitDRD

|

| JUL 24 Wee

No. 91-2082 OFFIGE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

.

NATHAN A. RICE, BOBBY R. WATSON and

BOB SEYMOUR,

Petitioners,

JAMES CALVIN MITCHELL,

Respondent.

¢

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

.

BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

¢

Mack SPERLING*

Rosert J. Kine Ill

Brooks, Pierce, MCLENDON,

HUMPHREY & LEONARD

Suite 2000 Renaissance Plaza

230 North Elm Street (27401)

Post Office Drawer U

Greensboro, North Carolina

27402-0820

(919) 373-8850

Attorneys for Respondent

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................... ii

STATEMENT OF THE CASE AND FACTS......... 1

REASONS FOR DENYING CERTIORARI........... 2

I. THE FOURTH CIRCUIT APPLIED A TRADI-

TIONAL QUALIFIED IMMUNITY ANALYSIS

WHICH DOES NOT WARRANT REVIEW BY

WON ENS 5 fae Chee u cere tas cee.

Il. THIS IS NOT A CASE WHERE TURNER v.

SAFLEY SHOULD HAVE BEEN APPLIED.....

Ill. THE RIGHT TO OUT-OF-CELL EXERCISE OF

AT LEAST SOME MINIMAL DEGREE WAS

SUFFICIENTLY WELL ESTABLISHED.........

APT cb. 5 5 ino 3 We 5504 ook kenaava vena

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ..........3, 8

Clark v. Link, 855 F.2d 156 (4th Cir. 1988) ....... ae

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

Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977),

cert. denied, 496 US... FIG: CIG7EE sks cece esccts re |

Harlow v. Fitzgerald, 457 U.S. 800 (1982).............. 4

Jordon v. Gardner, 953 F.2d 1137 (9th Cir. 1992)....... 5

Kenyatta v. Moore, 744 F.2d 1179 (5th Cir. 1984),

cert. demted, G71 US.) CS Cid oe xe wens 4

Kirby v. Blackledge, 530 F.2d 583 (4th Cir. 1976)....... 8

McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992)..... 5

Martin v. D.C. Metropolitan Police Dept., 812 F.2d

$629 (D.C... Cie FRE io oc iets eee nek eas 4

Mitchell v. Rice, 954 F.2d 187 (4th Cir. 1992)..... Pe Se.

Pueblo Neighborhood Health Centers, Inc. v. Losavio,

OG/ F.20 GES CIO CW Tee nk crc ooo eee ss 4

Skehan v. Board of Trustees, 538 F.2d 53 (3d Cir.),

cert. deniad, 429 US. D7 Cres so dade ven chs eenns cs 4

Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979)...... 6, 8

Sweet v. South Carolina Department of Corrections,

529 F.2d 854 (4th Cir. 1975)(en banc) ............... 8

Turner v. Safley, 482 U.S. 78 (1987) ..........-....0005 5

Wilson v. Seiter, 111 S.C4.. 2501 (IGWEs. o. okn ss cua eass 3, 4

TABLE OF AUTHORITIES — Continued

AUTHORITIES

28 C.

28 C.

28 C.

26 C.

MA...

N.C.

N.C.

N.C.

Page

SM ER? 2h). ) ern Pere ae

Pam me wen.ee (8991), ..... Eee TT eT Pro L ete ei

Pues Oe Net) CUPPED 6 cic is cece a sansa ru

ake Se OE ARLE) CE DBED cick c vier cea esas es er

Admin. Code tit.5 r.2©.0303(3)(b) (Oct. 1991) .....6

Admin. Code tit.5 r.2C.0303(4) (Oct. 1991)..... 6

Admin. Code tit.5 r.2C.0303(4)(e) (Oct. 1991) ..... 6

Admin. Code tit.5 r.2C.0303(4)(f) (Oct. 1991) ..... 6

No. 91-2082

e

In The

Supreme Court of the United States

October Term, 1992

¢

NATHAN A. RICE, BOBBY R. WATSON and

BOB SEYMOUR,

Petitioners,

JAMES CALVIN MITCHELL,

Respondent.

*

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

¢

BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

¢

Respondent James Calvin Mitchell respectfully sub-

mits that a writ of certiorari to review the opinion of the

United States Court of Appeals for the Fourth Circuit in

Mitchell v. Rice, 954 F.2d 187 (4th Cir. 1992), is unneces-

sary and should not issue.

STATEMENT OF THE CASE AND FACTS

Petitioners devote most of their Statement of the Case

to a summary of Respondent’s poor disciplinary record.

Their purpose is to obscure the nature of the punishment

meted out by the Petitioners to obtain an “improvement”

of Respondent's behavior. Petitioners’ response to these

discipline problems was to confine Respondent to his cell,

on a twenty-hour per day basis, for two extended periods

of time. The first such confinement was for seven months.

The second was for thirteen months. Respondent was

permitted to leave his cell only to shower twice each

week, and then in full chain restraints. He had no oppor-

tunity for any out-of-cell exercise or recreation during

this nearly two year period.

It was this deprivation which forms the basis for

Respondent’s Eighth Amendment claim. The Petitioners

contended that they were entitled to qualified immunity

on Respondent’s claim because it was not clearly estab-

_lished that such confinement was unconstitutional. The

District Court and the Fourth Circuit rejected this argu-

ment. ,

¢

REASONS FOR DENYING CERTIORARI

I. THE FOURTH CIRCUIT APPLIED A TRADI-

TIONAL QUALIFIED IMMUNITY ANALYSIS

WHICH DOES NOT WARRANT REVIEW BY THIS

COURT.

The Petitioners see demons where there are none.

Their application for certiorari is based upon the asser-

tion that the Fourth Circuit’s opinion has “in effect elimi-

nate[d] qualified immunity.” Pet. at 11. That is hardly the

case. This strained interpretation is based on the Fourth

Circuit’s passing reference, in a footnote, to this Court’s

a

recent opinion in Wilson v. Seiter, 111 S.Ct. 2321 (1991).

Mitchell v. Rice, 954 F.2d 187, 193 n.6 (4th Cir. 1992). The

Court of Appeals referred to Wilson to underscore that it

was not ruling or the merits of Respondent’s claim, but

that it was limiting its decision to whether the right that

Petitioners violated was clearly delineated for qualified

immunity purposes. Wilson was cited for its admonition

that there must be an inquiry into the state of mind of the

actors accused of the constitutional violation before an

Eighth Amendment violation can be found.

The Petitioners have a very different view of the

Fourth Circuit’s footnote. They interpret it as creating an

“alternative theory of liability” for prisoners to raise

which Petitioners say will effectively bypass the qualified

immunity defense. Their position appears to be that the

Fourth Circuit’s holding means that since an Eighth

Amendment claimant must establish a culpable state of

mind, that culpability will always be a question of fact

and summary judgment will never be appropriate.

It is the Petitioners, and not the Fourth Circuit, who

have blurred the distinction between qualified immunity

and the questions of fact surrounding any resolution on

the merits. The only question at this stage, under

Anderson v. Creighton, 483 U.S. 635 (1987), was whether

“[t]he contours of the right [were] sufficiently clear that a

reasonable official would understand that what he is

doing violates that right.” Id. at 640. The issue under

Anderson is not whether the Defendant’s conduct was

unconstitutional. The Court engaged in a thorough

review of its precedent regarding a prisoner’s right to

out-of-cell exercise opportunities, and properly con-

cluded that this right was sufficiently clear that it could

not grant summary judgment on Petitioners’ claims of

qualified immunity.

The immunity accorded prison officials is only a

qualified one. Petitioners may wish for more, but the

objective test of Harlow v. Fitzgerald, 457 U.S. 800, 818-19

(1982), was properly applied here, and the Petitioners

could not establish their entitlement to qualified immu-

nity. This was their burden. See, e.g., Dellums v. Powell, 566

F.2d 167, 176 (D.C. Cir. 1977), cert. denied, 438 U.S. 916

(1978); Skehan v. Board of Trustees, 538 F.2d 53, 61 (3d Cir.),

cert. denied, 429 U.S. 979 (1976). Cf. Clark v. Link, 855 F.2d

156, 160-61 (4th Cir. 1988) (burden “appears” to rest on

claimant). Petitioners’ claim that the Fourth Circuit

“grafted” the subjective standard of Wilson onto the

objective standard of Harlow, and that the Court gave the

Respondent a “sword” meant to be only a “shield”, is

based upon a misreading of the holding of the Court. It

was true to the principles of Harlow. But, if indeed the

Fourth Circuit inquired into the subjective motivation in

making its ruling, that was appropriate. As virtually |

every Court of Appeals has recognized, it is often impos-

sible to keep Harlow entirely on its objective underpin-

nings. See, e.g., Pueblo Neighborhood Health Centers, Inc. v.

Losavio, 847 F.2d 642, 648 (10th Cir. 1988) (where subjec-

tive intent is an underlying element of the tort, Harlow

did not exclude an inquiry into the intent of.the defen-

dants); Martin v. D.C. Metropolitan Police Dept., 812 F.2d

1425, 1432 (D.C. Cir. 1987) (rejecting defendants’ claim

that, under Harlow, state of mind was never relevant,

referring to this as “a fault or vulnerability in the current

law of qualified immunity.”); Kenyatta v. Moore, 744 F.2d

1179, 1185 (5th Cir. 1984) (Supreme Court has “not

entirely eliminate[d] subjective inquiry from every quali-

fied immunity analysis.”), cert. denied, 471 U.S. 1066

(1985).

To the extent that Petitioners suggest that the Mitchell

decision is in conflict with the Ninth Circuit’s decision in

McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992), they

‘are wrong. There was no qualified immunity issue raised

-n McKinney. The holding of that case ultimately stands

for the same proposition as the footnote in Mitchell — that

a prisoner making an Eighth Amendment claim must, at

some stage, establish the state of mind of the person

violating his rights. Id. at 854. This is an inquiry separate

from that of qualified immunity, and one to be made after

the qualified immunity issue is resolved. That is the issue

which should now be addressed by the district court, and

which is not now before this Court.

Il. THIS IS NOT A CASE WHERE TURNER v. SAFLEY

SHOULD HAVE BEEN APPLIED.

There are North Carolina prison regulations that set

out the steps prison officials must take before depriving

an inmate of out-of-cell exercise opportunities. Peti-

tioners now claim that since they acted pursuant to regu-

lation, it is the regulation itself, not their conduct, which

is at issue. They contend that the Court should have

applied the four-prong test of Turner v. Safley, 482 U.S. 78,

89-90 (1987). The Supreme Court has never applied Turner to

an Eighth Amendment case. See Jordon v. Gardner, 953 F.2d

1137 (9th Cir. 1992) (applying Turner to First Amendment

claim but not Fourth Amendment or Eight Amendment

claims). As Judge (now Justice) Kennedy wrote in Spain v.

Procunier, 600 F.2d 189 (9th Cir. 1979):

it must . . . be remembered that enforcement of

the eighth amendment is not always consistent

with allowing complete deference to all admin-

istrative determinations by prison officials.

Whatever rights one may lose at the prison

gates, the full protections of the eighth amend-

ment most certainly remain in force. The whole

point of the amendment is to protect persons

convicted of crimes. Eighth amendment protec-

tions are not forfeited by one’s prior acts.

Mechanical deference to the findings of state

prison officials in the context of the eighth

amendment would reduce that provision to a

nullity in precisely the context where it is most

necessary.

Id. at 193-94 (citations omitted).

The North Carolina prison regulations in question

provide that inmates in maximum custody are entitled to

outside exercise at least twice a week. N.C. Admin. Code

tit.5 r.2C.0303(3)(b) (Oct. 1991). The regulations explicitly

provide that if it is necessary to restrict out-of-cell activ-

ity because of an inmate’s assaultive behavior, the pris-

oner shall be allowed to exercise in security restraints. Id.

at r.2C.0303(4). If further restriction is necessary, the

inmate shall be “advised of specific alternate exercise

programs.” Id. at r.2C.0303(4)(e). And if such drastic

restrictions are imposed, they are to be reviewed at 30-

day intervals. Id. at r.2C.0303(4)(f). There is no evidence in

the record that Mitchell was ever advised of alternate exercise

programs or that his severe punishment was reviewed at the

appropriate times.)

In its present posture, this case is not about those

regulations. There are genuine issues of material fact

whether Petitioners complied with them. The issues

raised at this stage concern the Respondent’s conditions

of confinement and whether they violated a “clearly

established right” for qualified immunity purposes.

If Petitioners wish to raise the defense that they acted

pursuant to prison regulations or to put into play the

constitutionality of those regulations, they are entitled to

do that in the appropriate forum. Respondent has not

contended that these regulations are unconstitutional. All

that is before this Court is the issue of qualified immu-

nity.

Ill. THE RIGHT TO OUT-OF-CELL EXERCISE OF AT

LEAST SOME MINIMAL DEGREE WAS SUFFI-

CIENTLY WELL ESTABLISHED.

Petitioners’ final argument is that Mitchell’s right to

out of cell recreation was not sufficiently clear at the time

for them to anticipate that their complete deprivation of

1 Federal prison regulations protect exercise privileges

with equal care. Inmates are specifically guaranteed the right

to exercise. 28 C.F.R. § 541.12. (1991) Prison disciplinary com-

mittees may revoke exercise privileges, but oniy for a specified

period of time. Id. at § 541.13. Such a withdrawal may not

exceed a period of one week. Id. at § 541.22(6). Inmates in a

“control unit program” (those who have injured or threatened

others) are guaranteed “a minimum of seven hours weekly

recreation and exercise out of the cell.” Jd. at § 541.46(e)(1).

this right might entitle him to damages. If this were so,

Petitioners would have been entitled to qualified immu-

nity. Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).

The Fourth Circuit properly held, however, that this

right was sufficiently clear. The federal courts have long

emphasized the importance of allowing even the most

dangerous prisoners some brief relief from their cells to

exercise and recreate. See, e.g., Spain v. Procunier, 600 F.2d

189, 199 (9th Cir. 1979). The law in the Fourth Circuit

counselled strongly against complete deprivations of

exercise opportunities. See, e.g., Clay v. Miller, 626 F.2d

345, 346 (4th Cir. 1980) (“[I]n certain circumstances,

restricting inmates’ opportunities for physical exercise

constitutes cruel and unusual punishment in violation of

the Eighth Amendment.”); Kirby v. Blackledge, 530 F.2d

583, 587 (4th Cir. 1976) (“Many of the circumstances taken

alone reach the level of cruel and unusual punishment,

such as . . . inadequate exercise .. . . ”); Sweet v. South

Carolina Department of Corrections, 529 F.2d 854, 866 (4th

Cir. 1975) (en banc) (“[I]ndefinite limitation on exercise

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

amount to ‘cruel and unusual’ punishment.”).

The Petitioners were on notice that they were tread-

ing in an area of constitutional significance. If the issue in

this case had been whether a set period of exercise, of a

set frequency, was constitutionally permissible, perhaps

qualified immunity would be appropriate. Here, how-

ever, there was no exercise at all allowed. No court has

ever held that the total deprivation of exercise for such

long periods of time is constitutionally permissible.

Qualified immunity therefore was not appropriate

here. There is no reason for the Supreme Court to disturb

this aspect of the Court of Appeals’ ruling.

S

CONCLUSION

This case presents none of the “special and impor-

tant” reasons justifying a grant of a writ of certiorari.

Respondent respectfully requests that the Petition be

denied.

Respectfully submitted this the 24th day of July 1992.

/s/

/s/

*

Attorneys for Respondent

Mack Sperling*

Mack SPERLING

*Counsel of Record

Rosert J. Kine III

Rosert J. Kine Ill

Brooks, Pierce, McCLENDON,

HumPHREY & LEONARD

Suite 2000 Renaissance Plaza

230 North Elm Street (27401)

Post Office Drawer U

Greensboro, North Carolina

27402-0820

(919) 373-8850