The constitutional right, based upon the Eighth Amendment's proscription of cruel and unusual punishment, of long term Close Management (C.M.) prisoners to outdoor recreation exercise yard is long and well established, nation wide, going back more than two decades. Federal courts have universally and consistently held that long term confinement prisoners require a minimum amount of daily outdoor yard to allow vigorous, large muscle exercise and to thus ensure the maintenance of good physical, mental and emotional health. Put another way, prison officials who confine prisoners in long term confinement statuses in one man cells, including death row, while denying them outdoor yard, violate the Eighth Amendment as a matter of law. See: e.g., Lock v. Jenkins, 464 F.Supp. 541, 551 (N.D. Ind. 1978) ["confinement for long periods of time without the opportunity for regular exercise does as a matter of law constitute cruel and unusual punishment."]; Sinclair v. Henderson, 331 F.Supp. 1123 (E.D.La 1971) ["confinement of death row inmate for long period of time without opportunity for regular outdoor exercise violates Eighth Amendment as a matter of law."]; Taylor v. Sterret, 344 F.Supp. 411, 420 (N.D. Tex. 1972) [Same]; Mawbry v. Ambroyer, 568 F.Supp. 245, 252 (E.D. Mich. 1983) [Same].
These decisions, like all of the cases cited in this article, were rendered after the courts heard and entertained scores of expert witnesses who consistently testified as to the medical community's universal consensus that a minimum amount of vigorous, large muscle, outdoor exercise is necessary for prisoners in close confinement to maintain a minimal level of good health. The constitutional right to yard applies equally to unconvicted pretrial detainees in jail, although these claims are analyzed under the Fourteenth Amendment's due process clause, while convicted prisoners' claims are analyzed under the Eighth Amendment. The following cases are a representative selection of major "yard" cases which hold that the Eighth Amendment mandates a minimum amount of outdoor yard. See: Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979); Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982); Peterkin v. Jeffes, 855 F.2d. 1021 (3rd Cir. 1988); Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir. 1988); Kirby v. Blackledge, 530 F.2d 583, 586 (4th Cir. 1976); Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980); Walker v. Johnson, 544 F.Supp. 345, 359-65 (E.D. Mich. 1982); Frazier v. Ward, 426 F.Supp. 1354 (N.D. N.Y. 1977); Harris v. Bell, 402 F.Supp. 469 (W.D. Mo. 1975); Dorrough v. Hogan, 563 F.2d 1259 (5th Cir. 1977); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854 (4th Cir. 1975); Grubbs v. Bradley, 552 F.Supp. 1052, 1130-31 (M.D. Tenn. 1982); Heitman v. Gabriel, 524 F.Supp. 622 (W.D. Mo. 1981); Krist v. Smith, 309 F.Supp 497 (S.D. Ga. 1970), Hendrix v. Faulkner, 525 F.Supp. 435 (N.D. Ind. 1981), Bono v. Saxbe, 462 F.Supp 146 (E.D. Ill. 1978); Toussaint v. McCarthy, 597 F.Supp. 1388 (N.D. Cal. 1984); Mitchell v. Untreiner, 421 F.Supp. 886 (N.D. Fla 1984), Roby v. Dept. of Corrections, 427 F.Supp. 251 (D. Neb. 1977). Many other cases, too numerous to cite here, can be located with minimal effort.
Moreover, these same courts have also held specifically that claims of "escape risk" or "security threat" are not acceptable justifications for prison officials to deny prisoners this fundamental constitutional right. See, e.g., Spain v. Procunier, supra; Krist v. Smith, supra; Dawson v. Kendrick, 527 F.Supp. 1252 (S.D. W.Va. 1981).
Furthermore, these cases consistently hold that the constitutional minimum is one hour per day of outdoor yard. A few cases have held that five (5) hours per week is constitutionally acceptable. See: e.g., Heitman v. Gabriel, supra [one hour per day of meaningful exercise], Bono v. Saxbe, supra [seven hours of outdoor exercise per week], Rhem v. Malcolm, 389 F.Supp. 964, 972 (S.D. N.Y. 1975) [expert medical testimony establishes inmates' medical need for at least one hour per day of exercise]; Albro v. County of Onondaga, 681 F.Supp. 991, 995 (N.D. N.Y. 1988) [inmates must be accorded at least one hour per day of exercise]; Toussaint v. Rushen, 533 F.Supp. 1365, 1385 (N.D. Cal. 1983) [court ordered at least 8-10 hours, minimum, of yard per week]; Anderson v. Coughlin, 757 F.2d 33, 35-36 (2nd Cir. 1985) [One hour per day of exercise passes Eighth Amendment scrutiny]; Campbell v. Cauthron, supra [One hour of outdoor recreation per day for inmates confined to cells more than 16 hours per day]; Ruiz v. Estelle, supra [One hour per day]; Harris v. Bell, supra [One hour per day]; and many others.
Notwithstanding the foregoing wealth of case law, the Florida DOC continues to deprive hundreds of its prisoners in Close Management (C.M.) status of any and all outdoor or out of cell yard time, often for years at a time, and for any reason - real or imagined - and continues to deprive all of its C.M. prisoners of the constitutionally acceptable minimum amount of yard. Florida maintains several thousand prisoners on C.M. status, which is defined by law as long term, single cell confinement. Florida prisoners are routinely kept in C.M. for 3-10 years, and longer. C.M. prisoners have severely restricted visits (one hour per month), property, books and privileges; they have no radios, T.V., hot water, and they cannot participate in any type of program (academic, vocational, educational) or leave their cells. In short, C.M. prisoners sit in tiny 6' x 9' cells, 24 hours a day, year after year, and vegetate. The rate of suicide and psychosis is, not surprisingly, quite high. C.M. status is, in effect, an indefinite de facto disciplinary confinement status.
By Florida DOC rule, C.M. prisoners receive only a maximum of two hours of yard per week, where 24 prisoners are placed into a fenced-in concrete pad measuring 24' x 33', giving each prisoner far less square footage than there is in their own cells! There is nothing to do on this "yard" except stand in the sun for two hours. It's too crowded to run or exercise. There is no recreation equipment available. However, in reality, C.M. prisoners average only about four hours of yard per month due to consistent cancellations of yard (for inclement weather, callouts, holidays, "emergencies", etc.) and those lost hours are not made up for.
The Florida two hours per week policy is itself far below the constitutional minimum, making the rule [33-3.00 83(9) (i), F.A.C.] unconstitutional on its face. More pernicious, however, is the total denial of yard. At Florida State Prison (F.S.P.) this is accomplished by placing the prisoner on the Yard Suspension List (YSL). Prisoners can be, and are, placed on the YSL for any reason at all - usually having nothing to do with yard itself - and they can and do remain on the YSL for years. I myself was on YSL for three straight years, not for any misconduct in prison, but instead based solely upon the nature of the crime I committed on the streets (involving the homicide of a correctional officer). See: Van Poyck v. Dugger, 582 So.2d 108 (Fla lstDCA 1991); Van Poyck v. Dugger, 579 So.2d 346 (Fla 1st DCA 1991); as well as Van Poyck v. Dugger, 779 F.Supp. 571 (M.D. Fla. 1991), affirmed, 977 F.2d 598 (11th Cir. 1992). I have personally known prisoners to be on the YSL for up to ten continuous years, and 2-4 years is not uncommon. At any given time at least 100 prisoners at F.S.P. are on the YSL (out of 800 C.M. prisoners).
Placement on the YSL is accomplished with absolutely no procedural due process being accorded to the prisoner (e.g., no written or prior notice of the "charge", no hearing, no right to present evidence or testimony, no right to confront any evidence or cross examine any witnesses, etc...). Because there exists no written, objective guidelines or criteria for placement on the YSL, or removal from the YSL, it is essentially up to the Colonel and/or Superintendent (who always follows the Colonel's recommendations anyway) to decide who goes on YSL, for what reason, and for how long. It can, and should, be argued that placement on the YSL constitutes an indefinite placement on a de facto disciplinary status (or imposition of a disciplinary sanction) which requires prison officials to accord prisoners with minimal procedural due process protections in accordance with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974), and progeny. In essence the DOC utilizes the YSL as a disciplinary punishment tool, one totally outside the scope of the existing disciplinary regulations (which mandate procedural due process protections). There is substantial case law support for the proposition that prison of officials cannot circumvent their due process responsibilities simply by renaming or relabeling the punishment imposed. See: Sheley v. Dugger, 833 F.2d 1420, 1427 n.8 (11th Cir. 1987); Parker v. Cook, 642 F.2d 865, 875 (5th Cir. 1981); Taylor v. Clement, 433 F.Supp. 585, 687-88 (S.D. N.Y. 1977); Walker v. Johnson, 544 F.Supp. 345, 347 (E.D. Mich. 1982), Van Poyck v. Dugger, 582 So.2d 108 (Fla 1st DCA 1991). See also: Todaro v. Bowman, 872 F.2d 43 (3rd Cir. 1989), Abdul-Wadood v. Duckworth, 860 F.2d 280 (7th Cir. 1988). Moreover, the total lack of any meaningful periodic review of the YSL status (based upon written, objective criteria and guidelines) clearly violates due process. See: Tyler v. Black, 811 F.2d 424 (8th Cir. 1987); Mims v. Sharp, 744 F.2d 946 (3rd Cir. 1984), Sheley v. Dugger, supra; Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1985); Sourbeer v. Robinson, 791 F.2d 1094 (3rd Cir. 1986); McCray v. Bennett, 467 F.Supp. 187 (M.D. Ala. 1978); Hardwick v. Ault, 447 F.Supp. 116 (N.D. Ga. 1978); and many others. Finally, the mandatory language contained in 33-3.00 83(9) (i), F.A.C. gives C.M. prisoners a state created due process protected liberty interest (over and above the straight Eighth Amendment claim) in going to the yard, yet the Florida DOC freely admits that they do not accord any due process in connection with placement on the YSL.
In view of the clearly established and unambiguous case law already discussed, how then does Florida continue to get away with maintaining this clearly unconstitutional system? The answer is two fold and simple. First, for reasons not clear to me, no attorney or legal group will challenge these rules or any other blatantly unconstitutional policies extistant in Florida. I've spent years and years writing scores of exhaustively detailed letters to attorneys, ACLU, The Prison Project, Florida Institutional Legal Services (a joke of an organization, funded by the state, which refuses flat out to challenge any DOC rules or policies lest their funding be yanked) and many other so-called civil rights attorneys. All reply with promises and/or referral, and expressions of sympathy, but no action. This has always been puzzling to me inasmuch as any attorney could easily take these cases, convert them into class actions, prevail and obtain substantial attorney fees. A first year law student could win on these issues. I myself have litigated and won this yard issue, and I received substantial compensation for my three years on the YSL when the DOC settled with me three days before trial. See: Van Poyck v. Barton, #89-l 9-Civ-J-16 (M.D. Fla, Jacksonville Division). See also: Van Poyck v. Dugger, 582 So.2d 108 (Fla 1st DCA 1991). But, because my case was not a class action suit, it benefited nobody but me. There are, at present, two good, solid pro se 42 U. S.C. §1983 on this subject now pending (as of Nov. 1994) in Jacksonville, and any attorney could step into them, convert them to class actions, and clear all of this up.
The second reason is that in our federal district court in Jacksonville we have two ultra-conservative, right wing, judges who actively thwart pro se prisoner suits. These judges never appoint counsel to represent any prisoner litigants, period, no matter how meritorious and valid the claim. In the 15 plus years I have personally been involved with this court, they have never appointed counsel for a single pro se prisoner, despite the fact that this court has the second largest prisoner civil case load in the nation. Many attorneys are frightened of and intimidated by these two judges; I've had at least three attorneys claim that the reason they don't want to challenge these rules is because they fear those two judges.
Because the vast majority of F.S.P. prisoners are illiterate, or at least ignorant of the law, and are in confinement with no access to the law library, and are flatly forbidden to receive any legal assistance from other prisoners, including legal aides (more blatantly unconstitutional rules which the Jacksonville court is not only aware of but condones in order to minimize its case load), few competently drawn up complaints are ever filed. The few that survive because the prisoner litigant is knowledgeable in the law are usually settled by the state. These cases are never certified as class action because the court refuses to ever appoint counsel, and counsel is a prerequisite under Rule 23 (a) (4), Fed. R. Civ. Proc. With no legal counsel (either voluntary or appointed) there is no class action, and with no class action the best that can happen is that an individual prisoner wins an individual suit, leaving the DOC free to maintain its system over the remainder of the population. This is a vicious cycle, and it perpetuates the current system which allows Florida, alone in the nation, to maintain this blatantly unconstitutional policy. In the process Florida violates all A.C.A. standards for treatment of prisoners, as well as the Eighth Amendment. Until some attorney or legal group has the courage to challenge these unconstitutional rules, Florida will remain mired in its 1930's mentality and it will remain a blight on the legal community.
[Editor's Note: William Van Poyck has been awarded a one-year gift subscription to PLN for this outstanding article. It will remain our policy to award gift subscriptions (and by-lines) to any reader who submits a well researched and written article such as this one. We are particularly interested in just this type of material - a very well researched and case-cited overview of an important prison rights issue. Many of our readers have little or no access to law libraries, or must rely on an "exact cite" system. An article like this is just what our readers need to help them litigate important issues. Unfortunately, myself and the other PLN editor are kept so busy writing, keyboarding, proof reading, editing, answering correspondence, etc. etc. that we have almost no time to do the outstanding, meticulous research that is required for this kind of article. We most heartily welcome and appreciate this type of material from you, our readers.]
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