Appealed From No. similar ORIGINAL JURISDICTION similar.
Before: Honorable Dan Pellegrini, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri.
The opinion of the court was delivered by: Silvestri
OPINION BY SENIOR JUDGE SILVESTRI
Before us are the preliminary objections of the Respondents, Martin F. Horn, Commissioner of the Department of Corrections of Pennsylvania, and James S. Price, Superintendent State Correctional Institution at Greene, to an action in mandamus filed by the Petitioners, Robert Dehart and Raymond Ziomek, inmates of general population at the State Correctional Institution at Greene (SCI-Greene), to compel the Respondents to provide them with at least two hours of daily, outdoor, physical exercise as mandated by Section 1 of the Act of June 14, 1923, P.L. 775, 61 P.S. § 101 (Act). *fn1
When ruling on preliminary objections, this Court shall sustain such objections and dismiss the action only in cases that are clear and free from doubt that the law will not permit recovery. *fn2 Stone and Edwards Insurance Agency, Inc., v. Department of Insurance, 151 Pa. Commw. 266, 616 A.2d 1060 (Pa. Commw. 1992). The preliminary objections, herein, are all in the nature of a demurrer. *fn3 We therefore must accept as true all well-pleaded allegations and all inferences reasonable deduced therefrom. Pennsylvania Chiropractic Federation v. Foster, 136 Pa. Commw. 465, 583 A.2d 844 (Pa. Commw. 1990).
Petitioners, pro se, filed an amended petition for review *fn4 which contained fifty, inartfully pleaded, paragraphs which are summarized as follows. SCI-Greene has an outdoor exercise yard which is surrounded by a security fence. The existing exercise schedule ensured that all inmates in the general population received their entitlement to two hours of daily, outdoor, physical exercise as mandated by Section 1 of the Act, 61 P.S. § 101. On September 30, 1996, the exercise yard was closed, Mondays through Fridays, for approximately one month to allow for the construction of a fence which bisected the exercise yard into two smaller halves; the exercise yard continued to be open to the inmates on Saturdays and Sundays. The inmates were not afforded exercise opportunities when the exercise yard was closed due to the fence being built therein. In early November of 1996, construction of the fence was completed thereby ending the weekday closures of the exercise yard.
The Petitioners assert that the Respondents deprived them of all outdoor exercise while the exercise yard was closed during construction of the fence. In response thereto, the Respondents filed a preliminary objection on the basis that the issue is now moot since the Petitioners are not being currently subjected to the allegedly adverse prison condition of which they complain. *fn5 We agree. *fn6 Upon completion of the fence construction, the exercise yard was reopened and a new schedule was implemented under which the inmates received outdoor daily exercise in the morning from 8:15 to 10:15 or in the afternoon from 1:00 to 3:00. The Petitioners, by virtue of their own allegations, concede that, with the reopening of the exercise yard, the issue of whether the closure of the exercise yard, during the construction of the fence, constituted a deprivation of their entitlement to receive two hours of daily, outdoor, physical exercise is moot. *fn7
Petitioners also assert that, as a result of the exercise yard being partially closed during the construction of the fence, they were subjected to "considerable physical and mental pain" which caused their Eighth Amendment right against cruel and unusual punishment, as applicable to the States through the Fourteenth Amendment, to be violated. For conditions of confinement to violate the Eighth Amendment prohibition against cruel and unusual punishment, the United States Supreme Court has said these conditions must be totally without penological justification and deprive an inmate of the minimal civilized measure of life's necessities. Rhodes v. Chapman, 452 U.S. 337, 346-347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981); Gregg v. Georgia, 428 U.S. 153, 183, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). *fn8
The Petitioners merely allege that there was no necessity to close the exercise yard. In so doing, however, the Petitioners fail to identify a single fact upon which this Court can infer that the closing of the exercise yard was totally without penological justification. Furthermore, the denial of recreation for a short period of time is not a per se constitutional violation. See Rust v. Grammer, 858 F.2d 411, 414 (8th Cir. 1988) (suspension of yard privileges for thirteen days during lockdown does not violate Eighth Amendment); Leonard v. Norris, 797 F.2d 683, 685 (8th Cir. 1986) (no out-of-cell exercise for fifteen days in punitive confinement not unconstitutional). The exercise yard was closed on weekdays only and the construction in its entirety lasted approximately one month. The alleged deprivation occurred in five day increments, Monday through Friday, with two days of exercise between each period of inactivity. Given the temporary nature of the deprivation and the deference afforded prison officials in maintaining the internal security of their institutions *fn9, we agree that the Petitioners have failed to state a claim of cruel and unusual punishment.
Accordingly, we will sustain the preliminary objections of the Respondents and dismiss, with prejudice, the Petitioners' amended petition for review.
SILVESTRI SILVESTRI, Senior Judge
AND NOW, this 22nd day of May , 1997, the preliminary objections of Martin F. Horn and James S. Price are sustained and the amended petition for review of Robert DeHart ...