Federal Court Orders Colorado to Provide Outdoor Recreation to Supermax Prisoner

by Matt Clarke

A federal court in Colorado has heldthat a mentally ill prisoner who spent over 12 years in administrative segregation must be afforded an opportunity for outdoor recreation. The court also ordered the Colorado Department of Corrections (CDOC) to have a physician re-evaluate the prisoner’s medication and treatment needs.

Colorado state prisoner Troy Anderson has been diagnosed with mental illness. His behavior in prison led to his placement in segregation for over 12 years, with the last 10 at the “supermax” Colorado State Penitentiary (CSP) in Cañon City, where prisoners in segregation were not allowed any outdoor recreation. [See: PLN, July 2014, p.4].

With the assistance of attorneys, Anderson filed a civil rights suit in federal court alleging that the denial of outdoor recreation and denial of adequate treatment for his mental illness violated the Eighth Amendment because they constituted cruel and unusual punishment. He also complained that the method by which prisoners could earn their way out of segregation was administered in a manner that violated due process and was unfair to mentally ill prisoners.

In an August 24, 2012 order, the district court found that Anderson had been denied outdoor recreation for 12 years, which constituted cruel and unusual punishment. Although Anderson’s expert psychiatrist and every one of the defendants’ eight medical experts agreed that outdoor recreation was “‘extremely important’ for the mood, sleep and overall wellbeing of an individual,” the CDOC attempted to argue that indoor recreation in a 90-square-foot cell was the equivalent of outdoor recreation. The court was not convinced.

“The fact that this highly experienced senior official in the CDOC believes that a tiny indoor room with a chin-up bar and a grate with small openings to the outside provides an ‘outdoor environment’ and ‘lots of opportunity for exercising,’ and that it is ok for Mr. Anderson to be confined without outdoor exercise or any real exposure to fresh air that is out of doors for 12 years and counting is troubling to say the least,” the district court wrote.

“The clinical personnel who are charged with providing mental health care to inmates at the CSP know better. CDOC officials know that the CSP is out of step with the rest of the nation. They have been told by their experts whom they hired that access to outdoor recreation at the CSP is deficient. However, so far as the evidence in this case shows, nothing has been done to provide any form of outdoor exercise to Mr. Anderson and the other inmates who have been held in administrative segregation at CSP for long periods. The Court concludes that defendants have been deliberately indifferent to Mr. Anderson’s mental and his physical health.”

The district court noted that the Tenth Circuit and other federal circuit courts had long held that the lengthy denial of an opportunity for fresh air and outdoor recreation was cruel and unusual punishment, and that such decisions were handed down well before CSP was built. The court also noted that Anderson’s experts had testified that, to their knowledge, “CSP is the only supermax facility in the country, including the notorious federal supermax prison at Florence, Colorado, that does not provide some opportunity for outdoor exercise.”

Anderson’s complaints about inadequate mental health care focused largely on failure to treat his diagnosed antisocial personality disorder and attention deficit hyperactivity disorder with stimulants. The CDOC physicians testified they had not tried stimulants, such as Ritalin, which were not on the CDOC’s formulary and required special permission to order, for several reasons.

The court wrote that it did not prescribe medication and would not substitute its judgment for that of psychiatrists and physicians or the pharmacists who developed the formulary. However, since one expert admitted the prison had tried just about everything else and should perhaps consider stimulants, the court ordered the CDOC to assign a psychiatrist “to re-evaluate Mr. Anderson’s current mental health treatment needs. Preferably, though not necessarily, this will be a physician who has not already formed an opinion regarding the appropriate medication regimen for him.”

Anderson also complained that the system of allowing any staff member to enter a negative report in a prisoner’s chronological record (a “chrono”), which prevented his progression toward release from segregation without due process or timely notification that the entry had been made, constituted a due process violation. He further argued that the mandatory monthly segregation reviews were of poor quality and offered no guidance on how to progress out of segregation.

The district court held that due to the harshness of the conditions and length of time he had been segregated, Anderson had a due process right in progressing out of administrative segregation. However, the prison had revised its procedures for segregation reviews since the lawsuit was filed and the new procedures appeared to address most of Anderson’s concerns. Plus there was evidence that prison staff had tried to work with Anderson by placing him in a program for segregated prisoners with mental health issues, but he had been removed from the program for repeated disruptive behavior.

Therefore, the court did not grant relief on this issue but noted that should the new procedures “prove to be form over substance,” Anderson could again seek relief from the court.

The court entered judgment in Anderson’s favor on the issue of outdoor recreation and ordered the CDOC to provide him at least one hour of outdoor exercise, three times a week. The court further ordered the defendants to have a CDOC physician take a fresh look at Anderson’s medication and treatment needs. Finally, the court determined that the outdoor exercise issue was the central focus of the suit and that, even though he did not prevail on all issues, Anderson was the prevailing party for purposes of costs and attorney fees. See: Anderson v. State of Colorado, 887 F.Supp.2d 1133 (D. Colo. 2012).

In July 2013, Anderson filed a motion to enforce the August 2012 judgment. On September 4, 2013, the court denied Anderson’s motion to alter or amend the judgment, and denied his motion to enforce the judgment with respect to attorney fees.

The defendants contended that the CDOC had created a new regulation, 650-03 (AR 6540-03), which they said mooted Anderson’s due process claim, arguing the regulation provided for “meaningful out-of-cell meeting[s]” with case managers.

Anderson filed another motion to enforce the judgment or show cause on September 12, 2014, which remains pending. He noted the defendants had transferred him to the Sterling Correctional Facility to comply with the court’s order, but that “Sterling’s exercise rooms did not provide outdoor exercise in compliance with the Court’s Final Order and Judgment.” He also informed the district court that many of the mental health programs and services on which the court had based its earlier judgment were not available at Sterling. The case remains pending. See: Anderson v. Colorado, U.S.D.C. (D.Col.), Case No. 1:10-cv-01005-RBJ-KMT.

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