Since throngs of you* have been asking, “hey, what’s up with that outdoor exercise case you all were working on,” I thought today — the day after a massive two-brief filing** — would be a good time for an update.

In 2010, we and the Civil Rights Clinic at the University of Denver filed a lawsuit against the Colorado Department of Corrections (CDOC) on behalf of Troy Anderson, who had been in solitary confinement at the Colorado State Penitentiary (CSP) for over a decade without outdoor exercise. Instead, he was permitted to exercise here for one hour per day five days a week.

CDOC called this “outdoor exercise.”  As it turned out, Judge Jackson did not.  In August, 2012, he held that this limited exercise violated the Eighth Amendment and ordered CDOC to provide Mr. Anderson with

access for at least one hour, at least three times per week, to outdoor exercise in an area that is fully outside and that includes overhead access to the elements, e.g., to sunlight, rain, snow and wind, unless inclement weather or disciplinary needs make that impossible.

Anderson v. Colorado, 887 F. Supp. 2d 1133, 1157 (D. Colo. 2012).

Instead of providing outdoor exercise at CSP, as the Eighth Amendment requires, CDOC moved Mr. Anderson to Sterling Correctional Facility where he exercised here:

In September, 2013, Judge Jackson held that that wasn’t outdoor exercise, either, and believe it or not we’ve been jawboning with the CDOC ever since. That’s a whole nother post!

Meanwhile, back at CSP, inmates in solitary still weren’t getting outdoor exercise, so in December, 2013, we filed a class action lawsuit to essentially enforce the outdoor exercise holding in Anderson. This case — Decoteau v. Raemisch — is still pending before Judge Martinez. Six months after we filed, the CDOC announced changes in the regulations governing solitary, but still did not provide for outdoor exercise. A month after that — late July of last year — the CDOC announced a plan to seek funding from the legislature to build an outdoor exercise area at CSP by the end of 2016. Progress, right? Contingent on the legislature. Over two years away. But glimmers of progress, right? Not so fast: the plan still did not incorporate outdoor exercise for inmates in the status the CDOC now calls Restrictive Housing Maximum Security Status or “Max.”

Last October, we filed a motion for partial summary judgment in the Decoteau case on the claim that inmates in Max were not getting outdoor exercise. In response, Defendants announced that they would provide outdoor exercise for Max inmates for one hour a day, three days a week. Here

 

in that cage.   Or one of two others to be built where the cones outline their perimeters.  The ceiling of this slightly-less-than-700-square-foot area is 20 feet above the ground and made of steel mesh and (in part) razor wire.  Here is the ceiling

and here is an architect’s 3D rendering, as seen from above.

Inmates who have been in Max for more than nine months will be allowed to exercise in one of the cages for one hour three times each week.  The remainder of the space around the cages constitutes the “outdoor exercise” available once each week to inmates in a status called “close custody transition.”

On Friday, we filed our reply brief, as well as a response in opposition to the CDOC’s motion for summary judgment.  Big kudos for all the great work by clinic students Jenny Vultaggio and Kevin Benninger and their professors Lindsey Webb and Lauren Fontana.  And stay tuned for further developments in “outdoor” “exercise”!

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*  Actually, just my step-dad.  Hi, David!

**  Thanks & a shout out to our paralegal, Sophie Breene, a/k/a the PACER-whisperer, who discovered mid-filing that the CDOC had put such impenetrable security features on the pdf of its regulation that not only was she unable to add an exhibit sticker, but the federal court’s electronic filing system would not accept it.  Now that’s security!

[Cross-posted at the CREECblog.]