# Opposition Brief — Rice v. Mitchell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0885%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 905 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0885%3A2. Public record. Not legal advice.