Inmate may proceed with claim alleging the denial of his right to exercise

The Court of Appeals has reinstated an Eighth Amendment lawsuit filed by an inmate who alleges that the jail denied him exercise opportunities because they decided against clearing the outside recreational areas of snow and ice during the winter months.

The case is McCray v. Lee, issued on June 18. Plaintiff filed this case pro se. He says the jail's policy of not clearing the snow and ice meant he could not undertake any outside exercise for four months, and that jail officials were deliberately indifferent to his right to exercise. There is such a right, by the way. While the very capable district court judge dismissed this case for failure to state a claim under Rule 12(b)(6), the Court of Appeals (Kearse, Bianco and Katzmann) says the plaintiff is entitled to discovery on this issue because the complaint does not suggest the jail had any legitimate penological reasons to refuse to clear the yards of ice and snow "for an entire third of a year."

The state, of course, raises the qualified immunity defense. Under that form of immunity, the defendants cannot be sued if the plaintiff fails to allege they violated clearly-established case law set down by the Second Circuit or the Supreme Court. The district court agreed with that argument holding that no case had previously held that inmates had the right to exercise in a prison yard "without naturally accumulating ice or snow during winter months." That may be true, but that frames the qualified immunity inquiry too narrowly. The Second Circuit holds that "the right need not be described with specific references to the weather or characteristics of the seasons of the year in order for a reasonable prison official to understand that climatic features may necessitate responsible measures to ensure that the right to a meaningful opportunity for physical exercise not be denied." The proper question, according to the Court of Appeals, is whether prisoners have "some opportunity for exercise." The Court cites cases dating to 1985 for that proposition. So plaintiff's right was in fact clearly established.

The Circuit has not published an Eighth Amendment right to exercise case in years. This case provides a template for inmates who want to pursue these claims. In the process of handling a case like this myself, I can say these cases are common in Connecticut in particular, though they do not involve snow and ice. It may surprise you that the right to exercise is protected under the Constitution. While the Constitution says nothing about prison exercise, it is considered one of life's necessities, and it cannot be denied with a good reason. For now, without the benefit of discovery, plaintiff alleges that jail officials knew about the denial of his exercise but were deliberately indifferent to that denial. While you might think the right to exercise can be corrected by allowing the plaintiff to exercise in his cell, the decision does not make reference to that at all. Perhaps the Court of Appeals believes that outdoor exercise is critical under the Eighth Amendment.

For you civil procedure wizards out there, this case has an interesting pit stop about the relevant documents to draw from in determining whether the plaintiff has a plausible claim under Rule 12. Plaintiff amended his complaint, the document which the Second Circuit reviewed on this appeal. But the state argued that the initial complaint in this case had admissions that worked against plaintiff's position. The Court of Appeals says those prior admissions may be useful in attacking plaintiff's credibility later in the case, but they cannot be relevant in determining if the amended complaint states a claim. The Circuit cites two cases, Dangler v. Off-Track Betting, 193 F.3d 130 (2d Cir. 1999), and Chambers v. Time Warner, 282 F.3d 147 (2d Cir. 2002).