Joseph Hosna v. Michael Groose , 80 F.3d 298 ( 1996 )


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  •      ___________
    No. 94-3578
    ___________
    Joseph Frank Hosna,               *
    *
    Appellee,           *
    *
    v.                           *
    *
    Michael Groose; David Dormire;    *
    Jon W. Kirk; Daniel Kempker;      *
    Robert Acree,                     *
    *
    Appellants.         *
    ___________
    Appeals from the United States
    No. 94-3579                      District Court for the
    ___________                      Western District of Missouri.
    Kelly Neal,                       *
    *
    Appellee,           *
    *
    v.                           *
    *
    Michael Groose; Gerald Bommell;   *
    Jack Kirk, *
    *
    Appellants.         *
    ___________
    No. 94-3580
    ___________
    Max D. Miller,                    *
    *
    Appellee,           *
    *
    v.                           *
    *
    Michael Groose; David Dormire;    *
    Dick Moore; Steve Long; Gerald    *
    Bommell; Jack Kirk,               *
    *
    Appellants.         *
    ___________
    No. 94-3649
    ___________
    Joseph Frank Hosna,               *
    *
    Appellant,          *
    *
    v.                           *
    *
    Michael Groose; David Dormire;    *
    Jon W. Kirk; Daniel Kempker;      *
    Robert Acree,                     *
    *
    Appellees.          *
    *
    --------------------              *
    *
    Donald E. Miller,                 *
    *
    Appellant,          *
    *
    v.                           *
    *
    Michael Groose; Jon W. Kirk;      *
    David Dormire; Gerald Bommell;    *
    Daniel Kempker; Betty Jaeger;     *
    John Doe; Robert Faith; James     *
    Eberle,                           *
    *
    Appellees.          *
    *
    --------------------              *
    *
    Kelly Neal,                       *
    *
    Appellant,          *
    *
    v.                           *
    *
    Mike Groose; Gerald Bommell;      *
    Jack Kirk, *
    *
    Appellees.          *
    *
    --------------------              *
    *
    Max D. Miller,                    *
    *
    Appellant,          *
    -2-
    *
    v.                           *
    *
    Michael Groose; David Dormire;    *
    Dick Moore; Steve Long; Gerald    *
    Bommell; Jack Kirk,               *
    *
    Appellees.            *
    ___________
    No. 94-3686
    ___________
    Donald E. Miller,                 *
    *
    Appellee,             *
    *
    v.                           *
    *
    Michael Groose; Jon W. Kirk;      *
    David Dormire; Gerald Bommell;    *
    Daniel Kempker; Betty Jaeger,     *
    *
    Appellants,           *
    *
    John Doe,                         *
    *
    Robert Faith,                     *
    *
    Appellant,            *
    *
    James Eberle,                     *
    *
    Defendant.            *
    ___________
    No. 95-1328
    ___________
    Robert Don Arnold,                *
    *
    Appellee,             *
    *
    v.                           *
    *
    Dick Moore; Gail Hughes; Steve    *
    Long; Michael Groose,             *
    *
    -3-
    Appellants.                *
    ___________
    No. 95-1329
    ___________
    Robert Don Arnold,                    *
    *
    Appellant,                 *
    *
    v.                               *
    *
    Dick Moore; Gail Hughes; Steve        *
    Long; Michael Groose,                 *
    *
    Appellees.                 *
    __________
    Submitted:   December 12, 1995
    Filed:   April 4, 1996
    __________
    Before MAGILL, GOODWIN,* and MURPHY, Circuit Judges.
    ___________
    MAGILL, Circuit Judge.
    Joseph Hosna, Donald Miller, Kelly Neal, Max D. Miller, and Robert
    Arnold (the Inmates) are prisoners housed in Missouri's Jefferson City
    Correctional Center's (JCCC) administrative segregation unit.1     They
    brought separate 42 U.S.C. § 1983 actions
    *THE HONORABLE ALFRED T. GOODWIN, United States Circuit
    Judge for the Ninth Circuit, sitting by designation.
    1
    Plaintiff James M. Boudreau has dismissed his cross-appeal,
    and his case has been remanded to the district court for a hearing
    on a motion to vacate. In addition, plaintiff Richard Seefeldt
    transferred to Pacific Correctional Center during the course of
    litigation, and the district court dismissed his claims as moot;
    plaintiff Michael Saunders' action was dismissed under Rule 41(a)
    on December 17, 1993.
    -4-
    against JCCC officials, seeking damages and injunctive relief for alleged
    equal protection violations because they enjoyed fewer privileges than
    inmates housed in protective custody.         The district court consolidated the
    cases and denied damages, but granted partial injunctive relief.                JCCC
    officials appeal the district court's grant of partial injunctive relief,
    and the Inmates cross-appeal the denial of full injunctive relief.           Because
    we hold that no equal protection violation occurred, we reverse the
    district court's grant of partial injunctive relief.
    I.
    JCCC is a maximum security prison housing approximately 2000 of
    Missouri's most dangerous criminals.            Prisoners are assigned to three
    housing    categories:    general      population,     protective    custody,    and
    administrative segregation.    General population allows inmates the greatest
    number of privileges.    Inmates in general population may have food, changes
    of clothing, televisions, and radios in their cells, and are allowed to
    attend group religious services, work, visit the law library, attend
    classes, eat in a cafeteria, have telephone access, have recreation with
    others, and go to the    canteen frequently.        Inmates in protective custody
    have much the same privileges as general population inmates, but for their
    safety live in a communal setting completely segregated from the general
    population inmates.      Protective custody inmates have canteen privileges
    twice per week.
    Administrative      segregation    is    the   most   restrictive   confinement
    setting.      For their own and others' safety, inmates in administrative
    segregation are housed in individual cells and kept separate from all other
    inmates at all times.      Administrative segregation inmates have very few
    privileges.    To reduce the likelihood of weapons being created or hidden,
    the type and amount of personal property permitted to administrative
    segregation inmates is severely limited.            To reduce the possibility of
    danger
    -5-
    by or to administrative segregation inmates, the inmates are allowed out
    of their cells only three hours per week for recreation.            When out of their
    cells, inmates are handcuffed and escorted by guards.                   Inmates may not
    attend classes, religious services, or group recreational activities, they
    cannot work or visit the law library, they do not have telephone access for
    personal calls, their visitation privileges are more restrictive than that
    enjoyed by other inmates, and they have canteen privileges only twice per
    month.
    Inmates are assigned to administrative segregation for a variety of
    reasons, including discipline, restraint of dangerous inmates and those
    prone to escape, medical quarantine, and additional security for inmates
    who would be unsafe in protective custody.                 The Inmates bringing this
    action are housed in administrative segregation by their own request,
    because       they   felt   unsafe   in   both   general   population   and   protective
    2
    custody.        They filed this lawsuit, arguing that they should be accorded
    the same privileges as inmates in protective custody, because they are in
    administrative segregation for their own safety rather than for
    2
    In a joint stipulation, the parties agreed that
    Inmates who have requested assignment to administrative
    segregation for protection at JCCC have done so because
    they have incurred gambling debts and either cannot or
    will not repay those debts, they have incurred debts for
    drugs, they have become the subject of homosexual
    advances or been assaulted, they have engaged in
    prostitution and gotten into trouble, they have been
    identified by other inmates as an alleged snitch, they
    have received threats from other inmates for various
    reasons including the nature of their crime or the victim
    of their crime, and they have had a falling out with
    their sexual partner.
    Appellants' App. at 6.
    -6-
    disciplinary reasons.3    The Inmates sought a variety of injunctive relief,
    including that they be allowed to have a greater array and quantity of
    personal possessions in their cells.
    The district court referred the case to a magistrate judge for an
    evidentiary hearing.     See 28 U.S.C. § 636(b)(1)(B).     Following the hearing,
    the magistrate judge determined that the JCCC officials had not violated
    the Inmates' right to equal protection, and recommended that all relief be
    denied.   Assuming that the Inmates held in administrative segregation for
    their own safety were similarly situated to inmates in protective custody,
    the magistrate judge concluded that the limitations placed on the Inmates
    in   administrative    segregation   were    rationally   related   to   legitimate
    penological interests.     The magistrate judge found that
    there is a direct correlation between the amount of property
    possessed and danger. Through testimony, the parties revealed
    that virtually any item possessed can be fashioned into a
    weapon. Defendants showed ropes made out of paper bed sheets,
    handcuff keys made from plastic silverware, and "stickers" made
    from any type of metal or plastic, including disposable razors
    and food cans, and other instruments, used to stab and cut
    people.   Typewriters, television sets and radios have been
    disassembled and used as weapons and devices to jam door locks.
    Inmates have been able to manufacture brass knuckles and zip-
    guns. Knives are made from razor blades and wood. Cloth and
    paper bags of any kind can be used as "Cadillacs," a means to
    transport weapons or other items from one cell to another.
    With a little ingenuity, any item can be dangerous and threaten
    security. Even if an inmate did not use the item of property
    to manufacture a weapon, another inmate could obtain the
    property from that inmate and manufacture a weapon to use
    against others. Furthermore, the more property contained in a
    3
    The Inmates essentially seek reinstatement of a fourth type
    of custody, previously available at JCCC, known as "no-contact,
    red-tag, protective custody." This combined the enhanced security
    of administrative segregation with the greater privileges of
    protective confinement. This fourth category was discontinued by
    the JCCC because it was impracticable, ineffective, and created
    additional risks to inmates.
    -7-
    cell, the more difficult it is to search for contraband which
    might be used as a weapon, key or device to jam a lock. The
    prison has a duty to protect not only the inmates, but also the
    guards. The more property that is allowed, the harder it is to
    provide security for everyone.
    Report & Recommendation of Aug. 23, 1993, at 7.
    The      magistrate    judge   rejected   the   Inmates'   contention   that
    restrictions on their property were irrational because they were victims,
    rather than aggressors.      The magistrate judge found that the Inmates "are
    all dangerous individuals who have been convicted of serious offenses
    involving violence."       
    Id. at 8.4
      The magistrate judge also found that
    Plaintiffs demonstrated they had been able to work within the
    system to obtain dangerous items such as shards of glass, soda
    and tuna cans, bug spray, caustic cleaning supplies, razor
    blades, marbles, a variety of metal objects and food stuffs.
    
    Id. at 10.5
    The magistrate judge concluded that "[i]f the court were to grant
    plaintiffs' request that they be allowed additional property,
    4
    Inmate Arnold was convicted of first degree murder and escape
    from confinement.      Inmate Donald Miller was convicted as a
    dangerous offender for forcible rape and first degree burglary.
    Inmate Neal was convicted for rape, kidnapping and sodomy. Inmate
    Hosna was convicted for forcible sodomy, forcible rape, armed
    criminal action, and kidnapping. Inmate Max Miller was convicted
    of first degree robbery and escape.
    5
    Despite the Inmates' demonstrated capacity for violence and
    their continued threat to prison security, the limitations placed
    on the Inmates are not punitive in nature.       As found by the
    magistrate judge, "[t]he harshness of the conditions in the no-
    contact administrative segregation status are not a result of
    defendants' desire to punish plaintiffs; rather, it is the
    unfortunate result of plaintiffs' need for protection." Report &
    Recommendation of Aug. 23, 1993, at 10.
    -8-
    it would merely increase the difficulty of providing security and would
    likely    increase the number and severity of assaults which could be
    committed.   Therefore, no violation of the equal protection clause has been
    shown."    
    Id. Upon de
      novo   review   of    the   magistrate   judge's   Report   and
    Recommendation, the district court accepted the magistrate judge's findings
    of fact, and held that the defendants were not liable for money damages
    because they had not violated a well-established constitutional right.        The
    district court rejected, however, the magistrate judge's conclusion of law
    that no equal protection violation had occurred due to the limitations on
    the Inmates' in-cell property privileges.        The district court held that
    certain of the limitations imposed on the no-contact inmates
    are not justified by safety or security concerns or are an
    exaggerated response to such concerns.        These no-contact
    protective custody inmates are not being punished; therefore,
    all reasonable efforts should be made to treat them on an equal
    basis with other protective custody inmates, if such efforts
    will not threaten the security or safety of the institution.
    Order of Jan. 26, 1994, at 3-4.        The district court remanded the case to
    the magistrate judge to determine appropriate injunctive relief.
    After a second hearing, the magistrate judge recommended the grant
    of injunctive relief to meet some of the Inmates' requests.      The magistrate
    judge first recommended that the frequency of the Inmates' access to the
    canteen be increased from once every two weeks to once every ten days.        The
    magistrate judge also recommended that the Inmates be allowed to have the
    same quantity and type of food stuffs, stationary, and certain personal
    hygiene products as prisoners in protective custody.         This included, for
    example, an increase in the number of Slim Jims from 0 to 6, bags of
    cookies from 1 to 5, fried pies from 1 to 6, and tubes of
    -9-
    toothpaste from 1 to 2.        See Report & Recommendation of June 24, 1994, at
    7; Appellants' App. at 61-62, 67 (Attachment Charts A and F).
    The magistrate judge also determined that much of the injunctive
    relief requested by the Inmates should be denied.                  The Inmates conceded
    that   there   was   no    real    discrepancy    between    the    treatment     afforded
    protective custody inmates and themselves with regard to meals, bedding,
    mail, hair care, laundry, and medical services.             The magistrate judge found
    that   restrictions       on   the   Inmates'     visitation,      religious     services,
    telephone, recreation, showers, access to the law library, and possession
    of items other than food stuffs and underwear were rationally related to
    legitimate security concerns.6
    Both parties filed objections to the magistrate judge's Report and
    Recommendation.      Upon de novo review, the district court adopted the
    magistrate     judge's    Report     and   Recommendation    in    full,   and   issued a
    permanent injunction against the JCCC officials.            The JCCC officials appeal
    the district court's grant of injunctive relief, while the Inmates appeal
    the district court's denial of full injunctive relief.              In addition, Inmate
    Arnold makes a pro se appeal of several issues.
    II.
    We review the district court's conclusions of law de novo, see More
    v. Farrier, 
    984 F.2d 269
    , 271 (8th Cir.), cert. denied, 
    114 S. Ct. 74
    (1993), and its grant of injunctive relief for abuse of discretion; see
    F.T.C. v. Freeman Hosp., 
    69 F.3d 260
    , 267 (8th Cir.
    6
    The magistrate judge also found that the use of handcuffs
    while escorting the Inmates out of their cells was justified by
    security needs, and that requiring the Inmates to wear distinctive
    jump suits to identify them as administrative segregation inmates
    did not violate equal protection.
    -10-
    1995).     "Abuse of discretion occurs if the district court rests its
    conclusion on clearly erroneous factual findings or if its decision relies
    on erroneous legal conclusions."         International Ass'n of Machinists &
    Aerospace Workers, Dist. Lodge 19 v. Soo Line R.R., 
    850 F.2d 368
    , 374 (8th
    Cir. 1988) (en banc), cert. denied, 
    489 U.S. 1010
    (1989).
    III.
    We begin our analysis by noting that it is not the role of federal
    courts to micro-manage state prisons.             See Klinger v. Department of
    Corrections, 
    31 F.3d 727
    , 733 (8th Cir. 1994), cert. denied, 
    115 S. Ct. 1177
      (1995).    Instead,   "federal    courts    ought   to   afford   appropriate
    deference and flexibility to state officials trying to manage a volatile
    environment. . . . Such flexibility is especially warranted in the fine-
    tuning of the ordinary incidents of prison life . . . ."          Sandin v. Conner,
    
    115 S. Ct. 2293
    , 2299 (1995) (citations omitted).                 In Procunier v.
    Martinez, 
    416 U.S. 396
    , 404-05 (1974), overruled in part, Thornburgh v.
    Abbott, 
    490 U.S. 401
    (1989),7 the Supreme Court explained the basis for
    this deference:
    Traditionally, federal courts have adopted a broad hands-off
    attitude toward problems of prison administration.      In part
    this policy is the product of various limitations on the scope
    of federal review of conditions in state penal institutions.
    More fundamentally, this attitude springs from complementary
    perceptions about the nature of the problems and the efficacy
    of   judicial   intervention.     Prison   administrators   are
    responsible for maintaining internal order and discipline, for
    securing their institutions against unauthorized access or
    escape, and for rehabilitating, to the extent that human nature
    and inadequate resources allow, the inmates placed in their
    custody. The Herculean obstacles to effective
    7
    In Thornburgh, the Supreme Court mandated greater deference
    by courts to prison administrators' decisions regarding prisoners'
    access to incoming correspondence than had been suggested by the
    Martinez decision. See 
    Thornburgh, 490 U.S. at 413-14
    .
    -11-
    discharge of these duties are too apparent to warrant
    explication. Suffice it to say that the problems of prisons in
    America are complex and intractable, and, more to the point,
    they are not readily susceptible of resolution by decree. Most
    require expertise, comprehensive planning, and the commitment
    of resources, all of which are peculiarly within the province
    of the legislative and executive branches of government. For
    all of those reasons, courts are ill equipped to deal with the
    increasingly urgent problems of prison administration and
    reform. Judicial recognition of that fact reflects no more
    than a healthy sense of realism. Moreover, where state penal
    institutions are involved, federal courts have a further reason
    for deference to the appropriate prison authorities.
    (notations omitted).    See also Turner v. Safley, 
    482 U.S. 78
    , 84-85 (1987);
    Jones v. North Carolina Prisoners' Union, 
    433 U.S. 119
    , 126 (1977).
    Of    course,   "federal   courts    must   take   cognizance   of   the   valid
    constitutional claims of prison inmates."          
    Turner, 482 U.S. at 84
    .        The
    Inmates bringing this action have a right to equal protection.            See Lee v.
    Washington, 
    390 U.S. 333
    , 334 (1968) (per curiam).               Where, as here,
    plaintiffs do not allege that they are members of a suspect class, we
    review their claims under a rational basis standard.             See Moreland v.
    United States, 
    968 F.2d 655
    , 660 (8th Cir.) (en banc), cert. denied, 
    506 U.S. 1028
    (1992).    To prevail in their claims, the Inmates must prove that
    "(1) persons who are similarly situated are treated differently by the
    government, and (2) [that] the government [has failed] to provide a
    rational basis for the dissimilar treatment."            
    Id. (citing Cleburne
    v.
    Cleburne Living Ctr., Inc., 
    473 U.S. 432
    , 439-41 (1985)).
    We shall assume, without deciding, that the Inmates have met their
    burden of proving that they are similarly situated to inmates in protective
    custody.   Cf. Divers v. Department of Corrections, 
    921 F.3d 191
    , 193 (8th
    Cir. 1990) (per curiam) (equal protection
    -12-
    claims of protective custody inmates were not frivolous).8              We therefore
    focus on the second step in the analysis, whether restrictions placed on
    the Inmates are "reasonably related to legitimate penological interests."
    
    Turner, 482 U.S. at 89
    .
    The     JCCC   officials   have   attempted   to    prohibit   administrative
    segregation inmates' access to objects which could be used to either
    create,    conceal, or transport weapons or escape devices.                The JCCC
    officials'    goal    of   maintaining    security      for   inmates    housed   in
    administrative segregation and for JCCC staff is clearly a legitimate
    penological objective.      See Bell v. Wolfish, 
    441 U.S. 520
    , 547 (1979)
    ("Prison administrators therefore should be accorded wide-ranging deference
    in the adoption and execution of policies and practices that in their
    judgment are needed to preserve internal order and discipline and to
    maintain institutional security.").      Our inquiry in this case is therefore
    limited to whether the restrictions on the Inmates have a reasonable place
    in the assurance of security at the JCCC, see 
    More, 984 F.2d at 269
    , and
    not whether defendants have shown a compelling reason for limiting the
    Inmates to a specific number of fried pies and Slim Jims.
    8
    Because we conclude that the reasons given for dissimilar
    treatment of the Inmates and protective custody inmates are
    reasonably related to legitimate penological objectives, we need
    not reach the issue of whether they are, in fact, similarly
    situated.   We are, however, concerned that the district court
    presumed, because both the Inmates and protective custody inmates
    were in specialized confinement settings for their own protection,
    that they were necessarily similarly situated. While the reasons
    that a prisoner is in a specific type of confinement may be
    relevant to an equal protection analysis, cf. 
    Moreland, 968 F.2d at 661
    (persons in same halfway house for different reasons not
    similarly situated), it is not determinative. Rather, courts must
    focus "on whether the plaintiffs are similarly situated to another
    group for purposes of the challenged government action." 
    Klinger, 31 F.3d at 731
    ; see also 
    More, 984 F.2d at 271
    (disabled inmates
    similarly situated to nondisabled inmates for certain purposes, but
    not for others).
    -13-
    Inmates who reside in administrative segregation have been generally
    identified as either being a particular danger to others, or being in
    particular danger from others.    Because of this, the security needs of this
    unit are heightened, and every inmate must be construed as a potential
    threat to every other inmate.      See Report & Recommendation of Aug. 23,
    9
    1993, at 8-9.      In addition, having variable rules for differing classes
    of inmates within administrative segregation could lead to confusion and
    dangerous errors by staff.    Finally, allowing any inmate in administrative
    segregation   to   have   possession   of   prohibited   objects    increases    the
    likelihood that other, possibly more dangerous, inmates will acquire those
    items.
    JCCC officials had previously extended additional privileges to
    inmates in the Inmates' circumstances, and concluded that "no-contact, red-
    tag, protective custody" was not a workable alternative at the JCCC.            When
    creating policies "at an individual prison under the restrictions of a
    limited budget, prison officials must make hard choices.       They must balance
    many considerations, ranging from the characteristics of the inmates at
    that prison to the size of the institution" to create an optimal set of
    privileges and restrictions.      
    Klinger, 31 F.3d at 732
    .         Second guessing
    state prison administrators' decisions inhibits their willingness to
    experiment and innovate, see 
    id., and is
    not authorized by the Equal
    Protection Clause.    See New Orleans v. Dukes, 
    427 U.S. 297
    , 303 (1976) (per
    curiam) (Fourteenth Amendment does not authorize the judiciary to "sit as
    a superlegislature to judge the wisdom or desirability of legislative
    policy determinations made in areas that neither affect fundamental rights
    nor proceed along suspect lines").
    9
    While it is true that the Inmates are in administrative
    segregation for their protection rather than as a direct result of
    their own wrong-doing, this does not mean that they are harmless.
    Rather, as the magistrate judge found, these Inmates have violent
    pasts, and remain a possible risk to each other.
    -14-
    We find nothing unreasonable nor exaggerated in limiting the type of
    personal          property      in    administrative      segregation   cells,    because    this
    prevents the creation and transportation of weapons by administrative
    segregation inmates.                 We find nothing unreasonable nor exaggerated in
    limiting the amount of personal property in administrative segregation
    cells, because this enables JCCC officials to more effectively search the
    cells for contraband and weapons.                  In the aggregate, these regulations help
    ensure the safety and security of both inmates and staff at the JCCC, and
    are reasonable.10             Because these limitations on the Inmates are reasonable,
    the Inmates' right to equal protection has not been violated.                      Because the
    district court erred, as a matter of law, in holding that a constitutional
    violation occurred, it abused its discretion in granting injunctive relief.
    See International Ass'n of 
    Machinists, 850 F.2d at 374
    .
    IV.
    Proceeding on appeal pro se, Inmate Arnold raises several additional
    issues.11             First, Arnold argues that, because the district court did not
    specify how it had conducted its de novo review, and because the district
    court        did       not   make    specific   reference    to   Arnold's   pro    se   written
    exceptions, the district court committed reversible error by failing to
    conduct           a    de    novo    review   of   the    magistrate    judge's    Reports    and
    Recommendations.
    A district court must make a de novo review of a magistrate judge's
    report and recommendation upon a party's written exceptions, see 28 U.S.C.
    § 636(b)(1).             We presume that the
    10
    Similarly, restrictions on the Inmates' access to prison
    resources and the requirement that they be handcuffed while out of
    their cells are, as found by the district court, reasonable.
    11
    Arnold has also moved this Court to supplement the record in
    these proceedings with affidavits from inmates incarcerated in
    another Missouri prison. We deny the motion.
    -15-
    district court has made a de novo review, however, unless affirmative
    evidence demonstrates otherwise.    Grinder v. Gammon, 
    73 F.3d 793
    , 795 (8th
    Cir. 1996) (per curiam) (quoting United States v. Hamell, 
    931 F.2d 466
    , 468
    (8th Cir.), cert. denied, 
    502 U.S. 928
    (1991)).            The district court
    affirmatively stated that it had made such a review, see Order of Jan. 26,
    1994, at 3; Order of Sept. 7, 1994, at 1, and Arnold has presented no
    evidence that the district court failed to make a proper de novo review in
    this case.   Arnold's first claim of error is therefore denied.
    Arnold also claims that the district court improperly granted the
    JCCC officials qualified immunity for an alleged violation of his Eighth
    Amendment right to be free from cruel and unusual punishment.           Arnold
    alleges that defendants violated the Eighth Amendment by offering him only
    three hours of exercise per week in an enclosed area out-of-doors.12         A
    "lack of exercise may be a constitutional violation if one's muscles are
    allowed to atrophy or if an inmate's health is threatened."         Whishon v.
    Gammon, 
    978 F.2d 446
    , 449 (8th Cir. 1992).     To prevail on his claim, Arnold
    "had to show that the prison officials were deliberately indifferent to his
    exercise needs."   
    Id. at 448-49.
    While not permitting inhumane conditions, "[t]he Constitution does
    not mandate comfortable prisons . . . "        Brown v. Nix, 
    33 F.3d 951
    , 955
    (8th Cir. 1994).   Requiring an inmate to exercise in an enclosed area is
    not itself a per se violation of the Eighth Amendment, see, e.g., Peterkin
    v. Jeffes, 
    855 F.2d 1021
    , 1031-32 (3d Cir. 1988), nor does a limitation of
    three hours per week of out-of-cell exercise necessarily violate the
    Constitution.   See 
    Whishon, 978 F.2d at 449
    (forty-five minutes of exercise
    per week not constitutionally infirm).      Arnold stated in his complaint that
    12
    Arnold alleges that he is limited to a "dog-run" exercise
    area that is 3 feet wide by 20 feet long by 7 feet high. Arnold
    does not allege that he is physically unable to exercise in this
    area.
    -16-
    he refused to make use of the exercise opportunities that have been
    provided to him, see Arnold Compl., Count II, ¶ 32, and any ill effects
    arising from lack of exercise stem from his own, rather than defendants',
    actions or inactions.    Cf. 
    Whishon, 978 F.2d at 449
    (noting that plaintiff
    had failed to use all the recreation time available to him).    In light of
    this, we cannot say that the district court erred in ruling in favor of the
    JCCC officials on this issue.13
    V.
    We affirm the district court's grant of qualified immunity to
    defendants and its denial of injunctive relief unrelated to in-cell
    personal property.     We reverse its grant of injunctive relief.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    13
    Arnold also claims that JCCC officials were improperly
    granted qualified immunity on the Inmates' claims for damages,
    because the defendants had violated a clearly established
    constitutional right. See Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818-
    19 (1982) (standard for qualified immunity). Because we hold that
    the JCCC officials did not violate any of the Inmates'
    constitutional rights, clearly established or otherwise, this issue
    is without merit.
    -17-