U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

No Clearly Established Right for Prisoners to Exercise Outside

Prisoners may exercise their rights, but that does not include a right to exercise outside.

So said the U.S. Tenth Circuit Court of Appeals in Lowe v. Raemisch. The appeals court said the Eighth Amendment prohibits cruel and unusual punishment, but it does not clearly establish a constitutional right to exercise outdoors.

"[D]eprivation of outdoor exercise for two years and one month would not have obviously crossed a constitutional line," Judge Robert Bacharach wrote for the unanimous court.

Two Years

Donnie Lowe had been serving time for a parole violation, according to his Facebook page, and was due to be released this summer. While in prison, however, he tried to stay in shape by exercising.

After sweating it out in his cell for twenty-five months, he sued the prison officials who had denied him the privilege to exercise outside. He alleged they had violated his Eighth Amendment rights.

A trial judge agreed, pushing aside the officials' claim of immunity. The appeals court reversed.

The panel said that, even if the officials violated the Eighth Amendment, they were protected by a qualified immunity because the law was not clear that two years was an unconstitutional deprivation.

Three Years

The court acknowledged that denial of outdoor exercise could be cruel and unusual punishment under some circumstances. In Fogle v. Pierson, for example, the court had held that three years could be "deliberate indifference to an inmate's health."

The officials claimed they were not indifferent to Lowe's health. The court considered their conduct on a sliding scale: from objectively not serious to obvious, egregious conduct.

Ultimately, the appeals court said two years was not clearly established as an unlawful deprivation of Lowe's rights. Prison officials were entitled to immunity because they did not knowingly violate the law.

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