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Tenth Circuit: Lengthy Denials of Outdoor Exercise Protected by Qualified Immunity

The Court of Appeals for the Tenth Circuit issued two decisions in July 2017 which held prison officials were entitled to qualified immunity for denying outdoor exercise to prisoners for 11 and 25 months.

Colorado state prisoners Jonathan Apodaca and Joshua Vigil were denied outdoor recreation during the eleven months they were confined in administrative segregation. Relying on Perkins v. Kansas Department of Corrections, 165 F.3d 803 (10th Cir. 1999) [PLN, Sept. 1999, p.27], they filed suit in federal court, arguing that the denial of outdoor exercise violated the Eighth Amendment. The district court rejected the defendants’ qualified immunity defense and they appealed.

The Tenth Circuit reversed. The Court of Appeals assumed that the deprivation of outdoor exercise for eleven months was a violation of the Eighth Amendment, but held prison officials were entitled to qualified immunity because the underlying constitutional right had not been clearly established in that circuit.

“Roughly three decades ago, we recognized a consensus in the case law regarding the importance of outdoor exercise for prisoners,” the Court explained. “‘There is substantial agreement among the cases ... that some form of regular outdoor exercise is extremely important to the psychological and physical wellbeing of inmates.’” Nevertheless, “a denial of outdoor exercise does not per se violate the Eighth Amendment,” and courts “must examine the totality of the circumstances,” including “the length of the deprivation.”

The appellate court observed that Perkins can be interpreted expansively to include outdoor exercise claims or narrowly to apply only to out-of-cell exercise. The narrow interpretation was supported by an unpublished opinion in Ajaj v. United States, 293 Fed.Appx. 575 (10th Cir. 2008), which held that a 12-month deprivation of outdoor recreation did not violate the Eighth Amendment. “If Perkins is read broadly, Ajaj might appear to conflict with Perkins,” the Court of Appeals observed. However, it was unnecessary to resolve which interpretation was correct. “It is enough to conclude that the question is within the realm of reasonable debate, for Perkins can be read either expansively or narrowly,” the Court held.

Perkins’ ambiguity means that our circuit has not clearly established a right to outdoor exercise over an eleven-month period,” the Eighth Circuit concluded. “As a result, the warden and director are entitled to qualified immunity.”

The appellate court rejected the prisoners’ reliance on Fogle v. Pierson, 435 F.3d 1252 (10th Cir. 2006) [PLN, Jan. 2007, p.44] and Housley v. Dodson, 41 F.3d 597 (10th Cir. 1994) [PLN, Oct. 1995, p.10]. Fogle was distinguished because its analysis focused on the subjective prong of the Eighth Amendment while the objective prong controlled the claims brought by Apodaca and Vigil. Housley involved out-of-cell rather than outdoor exercise. “These differences could reasonably have led the warden and director to question the applicability of Fogle and Housley,” the Court of Appeals stated.

The Court also rejected the prisoners’ reliance on Anderson v. Colorado, 887 F.Supp.2d 1133 (D. Colo. 2012) [PLN, Jan. 2015, p.28], which found an Eighth Amendment violation for denial of outdoor recreation at the same facility. “The deprivation in the district court’s earlier case spanned twelve years,” the appellate court observed. “Here, the alleged deprivation lasted only about eleven months.” See: Apodaca v. Raemisch, 864 F.3d 1071 (10th Cir. 2017).

In a separate case, Colorado prisoner Donnie Lowe also filed a federal lawsuit for a 25-month denial of outdoor exercise. As in Apodaca, the district court denied qualified immunity to the defendants but the Tenth Circuit reversed, finding prison officials were entitled to qualified immunity because the Eighth Amendment right had not been clearly established.

“We must gauge the clarity of the constitutional right based on our precedents’ similarity of conditions or obvious applicability. In our view, competent public officials could reasonably have viewed our precedents as inapplicable,” the appellate court wrote. “As a result, competent officials could reasonably disagree about the constitutionality of disallowing outdoor exercise for two years and one month. In light of this room for reasonable disagreement, the defendants are entitled to qualified immunity.” See: Lowe v. Raemisch, 864 F.3d 1205 (10th Cir. 2017).

Readers should note that the case law regarding denial of outdoor recreation, and whether the right to such recreation has been clearly established, may be different in the federal circuit with jurisdiction over their state.

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Related legal case

Lowe v. Raemisch