be invariably attainable because
of inclement weather, an outbreak
of violence within the jail, or
emergency situations. It is,
however, a goal toward which the
jail authorities should strive.
We hold that presumably innocent
pretrial detainees who are not
classified as security risks and
who have not been shown to have
violated the disciplinary rules
of the jail have a fourteenth
amendment and 1983 right to
regular access to the outdoors.

563 F.2d at 750.

The court in Campbell v. McGruder, 580 F.2d 521 (D.C. Cir. 1978), remanded for a determination of the quality and kind of recreational opportunities that must be afforded plaintiff pretrial detainees in order to protect their mental and physical health. The district court had required the prison officials to provide at least one hour of outdoor recreation daily for each resident of the jail. The court of appeals commented that although the district court may have had in mind the salutary effects of exposure to fresh air and sunshine, there was no evidence about the necessity for outdoor recreation.

Dorrough v. Hogan, 563 F.2d 1259, 1264 (5th Cir. 1977) affirmed the district court's finding that plaintiffs, segregated inmates, were not subjected to cruel and unusual punishment in being limited to only two one-hour exercise periods a week. The dictrict court

officials to merely change their exercise schedule might be an unwarranted intrusion into an area governed by official discretion.

563 F.2d at 1263. The district court then allowed the parties twenty days to submit additional pleadings on the questions of health and practicality.

the district court stated:

After review of the additional

pleadings, this court concludes that an order requiring a change in exercise periods from two days a week to three or five, or whatever, would be an unwarranted intrusion upon the Bureau of Prisons' discretion in this area

The

denial of additional exercise
periods simply is not a sufficiently
grave deprivation of bodily needs to
trigger special injunctive relief
from this court.

563 F.2d at 1264.

Subsequently

Nadeau v. Helgemoe, 561 F.2d 411, 420 (1st Cir. 1977) held that the district court had improperly applied the "penological purpose" test in its determination that plaintiffs were not given adequate opportunity to exercise. The plaintiffs were limited to two hours a day "tier time" and less than two hours a week outdoor exercise time. The district court's finding that these limitations posed a threat to plaintiff's health over the long run was relevant but the court of appeals questioned whether the district court had sufficient evidence to make that finding and suggested that additional evidence be taken on remand.

James v. Wallace, 406 F.Supp. 318 (M.D. Ala. 1976) mandated:

Each institution shall employ a qualified full-time recreation director with at least bachelor's level training, or its equivalent, in recreation or physical education. Adequate equipment and facilities shall be provided to offer

recreational opportunities to every inmate. Space shall be available for inmates to

engage in hobbies. Suitable vocational programs shall be provided.

406 F.Supp. at 335.

4.

Isolation, Administrative Segregation, Maximum
Security, Incarceration With Another Prisoner
Under Psychiatric Care, Female Prisoner in
Segregation in Male Prison

The question of whether a prisoner's confinement in isolation, administrative segregation, or maximum security subjects him to cruel and unusual punishment in violation of the Eighth Amendment is distinguished from his Fourteenth Amendment right to a due process hearing prior to his placement in such confinement as a disciplinary measure. 126

The district court in Hutto v. Finney,

U.S.

98 S.Ct. 2565, 57 L. Ed. 2d 522 (1978) had properly limited sentences to punitive isolation to thirty days. The Supreme Court stated:

Read in its entirety, the District Court's opinion makes it abundantly clear that the length of isolation sentences was not considered in a vacuum. In the court's words, punitive isolation "is not necessarily unconstitutional, but it may be, depending on the duration of the confinement and the conditions thereof."

A

filthy, overcrowded cell and a

diet of "grue" might be tolerable for a few days and intolerably

cruel for weeks or months.

U.S. at

98 S.Ct. at 2571-72,57 L. Ed. 2d at 531-32. The Court described the conditions originally found by the district court:

126. See Section VIII, K, 4 infra.

An average of four, and sometimes
as many as 10 or 11 prisoners were
crowded into windowless 8' x 10'
cells containing no furniture
other than a source of water and a
toilet that could only be flushed
from outside the cell
At
night the prisoners were given
mattresses to spread on the floor.
Although some prisoners suffered
from infectious diseases such as
hepatitis and venereal disease,
mattresses were removed and jumbled
together each morning, then returned
to the cells at random in the evening
Prisoners in isolation
received fewer than 1,000 calories a
day; their meals consisted primarily
of 4-inch squares of "grue,
substance created by mashing meat,
potatoes, oleo, syrup, vegetables,
eggs, and seasoning into a paste
and baking the mixture in a pan.

U.S. at

S. Ct. at

a

57 L.Ed.2d at 529. The district court had given the department of correction several opportunities to "make a substantial start" on improving conditions and to file reports on its progress. Later, when new hearings were conducted, the district court found that conditions had seriously deteriorated:

There were still twice as many
prisoners as beds in some cells.
And because inmates in punitive
isolation are often violently
antisocial, overcrowding led to
persecution of the weaker prisoners.
The "grue" diet was still in use,
and practically all inmates were
losing weight on it. The cells
had been vandalized to a "very
substantial" extent

Because of their inadequate
numbers, guards assigned to
the punitive isolation cells
frequently resorted to physical
violence, using nightsticks and
Mace in their efforts to maintain
order. Prisoners were sometimes
left in isolation for months,

their release depending on "their attitudes as appraised by prison personnel."

U.S. at

98 S.Ct. at 2570-71, 57 L.Ed.2d at 530. The district court had placed limits on the number of men that could be confined in one cell, required that each have a bunk, discontinued the "grue" diet, and set thirty days as the maximum isolation sentence. Supreme Court stated:

U.S. at

The

98 S.Ct. at 2511, 57 L.Ed.2d at 531. The Court concluded: "We find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishments."

98 S. Ct. at 2572, 57 L. Ed. 2d at 532.

U.S. at

In Sostre v. McGinnis, 442 F.2d 178 (2d Cir.

1971), 127 the plaintiff had been confined in punitive segregation for twelve months and eight days. "[F] or four months only one other prisoner was confined with [plaintiff] in his small 'segment' of five cells, [although] the entire punitive segregation unit housed . . about 15 prisoners at any one time." 442 F.2d at 185. The other prisoners were confined in cells near plaintiff and he could communicate with them, although with some difficulty. He had been able to dictate a legal document to one prisoner. Plaintiff had aggravated his isolation by refusing to participate

127. Cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, and Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972).