                                                                                [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                                                                   U.S. COURT OF APPEALS
                                         No. 96-3428                 ELEVENTH CIRCUIT
                                                                          04/01/99
                                                                      THOMAS K. KAHN
                                                                           CLERK
                              D. C. Docket No. 93-871-Civ-J-10


       FRANKIE LEE BASS, LEONARD BEAN,

                                                                          Plaintiffs-Appellants,

                                            versus

        EVERETT I. PERRIN, JR., L.R. JOHNSON,
        RICHARD L. DUGGER, THOMAS BARTON,
       L.E. TURNER, and A.D. THORNTON, in their individual
       and official capacities, HARRY K. SINGLETARY, JR.,
       in his individual capacity, and MICHAEL W. MOORE,
       in his official capacity,

                                                                        Defendants-Appellees.



                         Appeal from the United States District Court
                             for the Middle District of Florida


                                        (April 1, 1999)


Before TJOFLAT and ANDERSON, Circuit Judges, and HOEVELER*, Senior District Judge.

_______________________________________________
*Honorable William M. Hoeveler, Senior U.S. District Judge for the Southern District of
Florida, sitting by designation.
TJOFLAT, Circuit Judge:


       The plaintiffs, inmates in the Florida State Prison, challenge certain prison practices and

procedures. After careful consideration, we conclude that those practices are within the limits

established by the United States Constitution.



                                                 I.

       Frankie Lee Bass and Leonard Bean are inmates at the Florida State Prison in Starke,

Florida. Throughout most of their confinement, each has been in “Close Management,” a form

of solitary confinement for persons who have proven to be a danger to the rest of the prison

population. See Fla. Admin. Code Ann. r. 33-3.0083(1) (1990).1

       Inmates in Close Management are given two hours per week of outdoor exercise,

commonly known as “yard.” If, however, “clear and compelling facts can document [that] such

exercise periods should not be granted,” Fla. Admin. Code Ann. r. 33-3.0083(9)(i) (1990), then

an inmate may be placed on the Yard Suspension List (“YSL”) and thereby deprived of all

outdoor exercise time.2 The decision to place an inmate on the YSL is made by the prison’s

Chief Correctional Officer, after a recommendation by the officer in charge of the wing where

the inmate’s misbehavior occurred. The inmate is not present when this decision is made; he is,


       1
          Regulation 33-3.0083 was repealed on October 1, 1995 (subsequent to the filing of this
lawsuit), and replaced with regulations 33-38.001 through 33-38.013. The relevant (for purposes
of this suit) provisions relating to Close Management remained substantially unchanged.
       2
         Actions that lead to placement on the YSL are: recent demonstrations of violence,
continuing threats of physical harm toward staff and other inmates, involvement in acts that
seriously interfere with the staff’s daily security functions, and actions demonstrating an extreme
escape risk.

                                                 2
however, notified in writing of his placement on the list. The inmate may then file a grievance

with prison authorities. If the grievance is denied, the inmate receives a written statement of

reasons, and may appeal the decision to the Office of Inmate Grievance in Tallahassee.

Furthermore, the YSL is reviewed every month at the Florida State Prison supervisors meeting,

and each inmate is discussed to determine whether he should be removed from the list.

       Plaintiff Bass was placed on the YSL in October 1989 for possession of two homemade

firearms, two handcuff keys, and a package of pulverized match heads. In May 1991, Bass

stabbed another inmate, which extended his time on the YSL. He was removed from the list in

May 1992. In April 1993, during a yard session, he and plaintiff Bean scaled a fence,

commandeered a dump truck (by ejecting the driver at knifepoint), and drove through the

perimeter fence in an attempt to escape. Bass and Bean were captured and returned to the

prison, and Bass was again placed on the YSL. Bass remained on the YSL at the time he filed

this lawsuit in June 1993.

       Plaintiff Bean was placed on the YSL in May 1983 for the murder of a correctional

officer. He was taken off of the list in November 1991. He was returned to the YSL in April

1992 after being found in possession of a homemade plastic handcuff key. He was removed

from the list in November 1992, but was returned to the YSL in April 1993 after participating in

the escape attempt with Bass, and remained on the YSL when he filed this lawsuit.

       Bass and Bean brought suit pro se against various prison officials under 42 U.S.C. §

1983, seeking damages, a declaratory judgment, and an injunction. The district court granted

summary judgment for the defendants. Bass and Bean appeal.




                                                 3
                                                II.

       Bass and Bean claim that the defendants violated their constitutional rights by placing

them on the YSL. Specifically, they claim that the placement is cruel and unusual punishment,

that the procedures used in the placement do not comply with the requirements of the Due

Process Clause, and that such placement is discriminatory in violation of the Equal Protection

Clause. We discuss each of these claims in this section.



                                                A.

       The Eighth Amendment – applicable to the states through the Fourteenth Amendment –

forbids cruel and unusual punishments. As a historical matter, it is clear that the framers would

not have considered the plaintiffs’ fate to be cruel and unusual. In 1790, the first modern prison

– the Walnut Street Prison in Philadelphia – opened its doors. There, prisoners convicted of

serious but noncapital offenses were kept in solitary confinement and, except in cases of medical

necessity, never permitted to emerge from their cells. See Orlando F. Lewis, The Development

of American Prisons and Prison Customs, 1776-1845, at 30 (2d ed. 1967). These conditions

were not considered cruel and unusual; on the contrary, the Walnut Street Prison was the

brainchild of Quaker philanthropists and was considered to be on the cutting edge of penological

reform. See id. at 26-28.

       Eighth Amendment violations, however, are not confined to situations that would have

been considered cruel and unusual by the Framers. Contemporary standards of decency must be

brought to bear in determining whether a punishment is cruel and unusual. See Ford v.

Wainwright, 477 U.S. 399, 406, 106 S.Ct. 2595, 2600, 91 L.Ed.2d 335 (1986). This fact,


                                                 4
however, does not give judges carte blanche to impose their theories of penology on the nation’s

prisons. Instead, the Supreme Court has, insofar as it is possible, attempted to set forth concrete

standards by which courts can measure Eighth Amendment violations. See Coker v. Georgia,

433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (noting that the Court’s

“judgment should be informed by objective factors to the maximum possible extent”). In the

context of an inmate’s conditions of confinement after incarceration, the standard is that prison

officials violate the Eighth Amendment through “the unnecessary and wanton infliction of

pain.”3 Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986)

(citation omitted).

       Placement on the YSL certainly involves the “infliction of pain,” at least in the broad

sense of that phrase. Cf. Rhodes v. Chapman, 452 U.S. 337, 348-49, 101 S.Ct. 2392, 2400, 69

L.Ed.2d 59 (1981) (suggesting that placement of two inmates in a single cell might “inflict[]

pain” for Eighth Amendment purposes). Although being in solitary confinement with minimal

time outside is only marginally different from being in solitary confinement with no time

outside, there is nevertheless a significant difference between some time outside – even a

minimal amount – and none at all.4


       3
         The “wanton” element of the test is based on the Supreme Court’s distinction between
punishments imposed pursuant to judicial decree and punishments imposed by prison officials.
Punishments of the first type are examined without consideration of the intent with which they
are imposed. On the other hand, “[i]f the pain inflicted is not formally meted out as punishment
by the statute or the sentencing judge, some mental element must be attributed to the inflicting
officer before it can qualify [as cruel and unusual].” Wilson v. Seiter, 501 U.S. 294, 300, 111
S.Ct. 2321, 2325, 115 L.Ed.2d 271 (1991).
       4
         For instance, in the seventeenth century, heirs to the Turkish throne were kept in
continual confinement to prevent any possibility of their ascending to the throne via
assassination of the present Sultan. The result was a series of insane rulers. See Noel Barber,

                                                 5
       The pain inflicted on the plaintiffs, however, cannot be said to be unnecessary – in other

words, “totally without penological justification.” Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct.

2909, 2929, 49 L.Ed.2d 859 (1976). On the contrary, it would be hard to imagine a situation in

which two persons had shown a greater threat to the safety and security of the prison. Each

plaintiff was initially incarcerated for violent crimes: Bass for robbery, kidnaping, and armed

burglary; Bean for armed robbery. Since incarceration, each plaintiff has continued to engage in

violent behavior: Bass has been convicted of aggravated battery; Bean has been convicted of

murder and attempted murder. Each plaintiff has attempted to escape during yard time; plaintiff

Bass, in addition, has five convictions for escape. Finally, each plaintiff is serving a life

sentence with no opportunity for release in the foreseeable future; the incentives for proper

behavior by the plaintiffs are therefore minimal. Placement on the YSL was a rational, albeit

debatable, response to the substantial threat posed by the plaintiffs.

       In addition, the behavior of the defendants cannot properly be described as “wanton.”

Wantonness has been defined as “deliberate indifference to a substantial risk of serious harm to a

prisoner.”5 Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 1978, 128 L.Ed.2d 811

(1994).6 The record is filled with evidence indicating that prison officials were very concerned


The Sultans 78-80 (1973).
       5
         Some Eighth Amendment claims require a showing of more than “deliberate
indifference” to satisfy the wantonness requirement. For instance, claims of excessive force
require a plaintiff to show that the defendants acted with malice. See Farmer v. Brennan, 511
U.S. 825, 835, 114 S.Ct. 1970, 1978, 128 L.Ed.2d 811 (1994). Claims based on a prisoner’s
conditions of confinement, however, are clearly resolved under the deliberate indifference
standard. See id. at 836, 114 S.Ct. at 1978.
       6
         The Supreme Court, in Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2326-27,
115 L.Ed.2d 271 (1991), defined “wantonness” in the context of Eighth Amendment challenges
to conditions of confinement as “deliberate indifference.” In Farmer, cited in the text, the

                                                  6
about the potential harm to inmates from placement on the YSL, and took a variety of steps to

ensure that the plaintiffs were not harmed as a result of their continuous confinement. The

plaintiffs received daily cell-front medical evaluations, and received more thorough medical

examinations upon request. Any problems discovered were promptly treated. Furthermore, a

booklet (along with training from medical personnel) was made available to the plaintiffs

detailing proper methods of exercise while in confinement. The plaintiffs also received weekly

cell-front psychological evaluations, and could receive further examinations upon request. We

therefore conclude that the defendants were not “wanton” in their conduct.7 Cf. Helling v.

McKinney, 509 U.S. 25, 36-37, 113 S.Ct. 2475, 2482, 125 L.Ed.2d 22 (1993) (recognizing

preventative measures taken by prison officials as strong evidence that they were not deliberately

indifferent to risks of prisoner harm).

       The pain suffered by the plaintiffs was thus neither unnecessary nor wanton. We

therefore conclude that the complete denial to the plaintiffs of outdoor exercise, although harsh,

did not violate the Eighth Amendment.8


Supreme Court then clarified the meaning of “deliberate indifference.”
       7
         Plaintiffs complain of a wide variety of ailments – such as sleeplessness, mood swings,
and loss of muscle tone – that they claim have resulted from their placement on the YSL. These
ailments do not, for the most part, qualify as “serious harm” for Eighth Amendment purposes.
More importantly, the plaintiffs have not produced any evidence of physiological problems that
were willfully ignored by the defendants. The plaintiffs’ allegations tend to prove, at most,
negligence by the defendants in discovering and/or treating their ailments; mere negligence is
insufficient to establish the “deliberate indifference” required for an Eighth Amendment claim.
See Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).
       8
          The plaintiffs cite a substantial number of cases in support of their argument that the
deprivation of outdoor exercise is cruel and unusual punishment. Most of these cases involved
situations in which the overall conditions in a prison were unconstitutional; the court, in granting
injunctive relief, required that inmates receive a certain amount of time for outdoor exercise.
See, e.g., Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980); Mitchell v. Untreiner, 421 F.

                                                 7
                                                 B.

       The plaintiffs also claim that the procedures by which they were put on the YSL were

insufficient to satisfy the requirements of the Fourteenth Amendment’s Due Process Clause. We

disagree.

       As an initial matter, we must determine whether the injury claimed by the plaintiffs is

within the scope of the Due Process Clause. The Due Process Clause protects against

deprivations of “life, liberty, or property without due process of law.” U.S. Const. amend. XIV.

Clearly the plaintiffs were not deprived of life or property; they are therefore entitled to due

process only if they were deprived of “liberty” within the meaning of the Fourteenth

Amendment. This is often a difficult determination in the context of a prison, because prisoners

have already been deprived of their liberty in the ordinary sense of the term. Nevertheless, the

Supreme Court has made clear that there are two circumstances in which a prisoner can be

further deprived of his liberty such that due process is required. The first is when a change in a

prisoner’s conditions of confinement is so severe that it essentially exceeds the sentence imposed

by the court. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418




Supp. 886, 901 (N.D. Fla. 1976). These cases are largely irrelevant to our inquiry, because a
court that is fashioning injunctive relief to cure cruel and unusual prison conditions may go
beyond the minimum requirements of the Constitution. See Miller v. Carson, 563 F.2d 741, 751
(5th Cir. 1977).
         A few cases, however, explicitly hold that the long-term denial of outdoor exercise is
cruel and unusual punishment in violation of the Eighth Amendment. See, e.g., Rhem v.
Malcolm, 371 F. Supp. 594, 627 (S.D.N.Y. 1974); Sinclair v. Henderson, 331 F. Supp. 1123,
1131 (E.D. La. 1971). In response, the defendants cite this court’s statement that “deprivation of
exercise per se does not violate the cruel and unusual punishment clause.” Miller, 563 F.2d at
751 n.12. Ultimately, however, none of these cases are persuasive for the simple reason that
none of them was decided within the “unnecessary and wanton infliction of pain” framework
that the Supreme Court has established in recent years.

                                                  8
(1995); see, e.g., Vitek v. Jones, 445 U.S. 480, 492-93, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552

(1980) (holding that a prisoner is entitled to due process prior to being transferred to a mental

hospital). The second is when the state has consistently given a certain benefit to prisoners (for

instance, via statute or administrative policy), and the deprivation of that benefit “imposes

atypical and significant hardship on the inmate in relation to the ordinary incidents of prison

life.” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300; see, e.g., Wolff v. McDonnell, 418 U.S. 539,

558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974) (prisoners may not be deprived of statutory

“good-time credits” without due process); cf. Dudley v. Stewart, 724 F.2d 1493, 1497-98 (11th

Cir. 1984) (explaining how the state creates liberty interests).9 In the first situation, the liberty

interest exists apart from the state; in the second situation, the liberty interest is created by the

state.

         We conclude that the second situation is present here. Pursuant to the Florida

Administrative Code, prisoners in Close Management are given two hours per week of yard time

unless clear and compelling reasons exist to do otherwise. See Fla. Admin. Code Ann. r. 33-

3.0083(9)(i). Prisoners therefore have a state-created interest in yard time. Cf. Sheley v.

Dugger, 833 F.2d 1420, 1424 (11th Cir. 1987) (holding that language in the Florida

Administrative Code created a liberty interest for prisoners). Furthermore, deprivation of yard

time imposes enough of a hardship to qualify as a constitutionally protected liberty interest. As



         9
          In Dudley, we held that the Due Process Clause protects only those liberties created by
the state – in other words, apart from a state-created right, prisoners have no due process rights
in regard to prison disciplinary proceedings. See Dudley, 724 F.2d at 1496-97. Sandin,
however, decided by the Supreme Court subsequent to Dudley, made clear that in some
situations the Due Process Clause applies “of its own force.” Sandin, 515 U.S. at 484, 115 S.Ct.
at 2300.

                                                   9
noted previously, although the plaintiffs were deprived of only two hours of yard time per week,

the marginal value of those two hours to a person in Close Management is substantial. Such a

deprivation is therefore atypical and significant even in solitary confinement.10

       Having concluded that the plaintiffs have a protected liberty interest in yard time, we

now turn to the question whether the plaintiffs were afforded due process in conjunction with the

deprivation of that interest. The minimum requirements of due process for prisoners facing

disciplinary action (in this case, placement on the YSL) are (1) advance written notice of the

charges; (2) a written statement of the reasons for the disciplinary action taken; and (3) the

opportunity to call witnesses and present evidence, when consistent with institutional safety and

correctional goals. See Young v. Jones, 37 F.3d 1457, 1459-60 (11th Cir. 1994).

       In this case, the plaintiffs were given written notice of the charges, but only after

placement on the YSL.11 We hold, however, that the failure to provide such notice in advance

was irrelevant. It is a well-settled principle of law that “the state may cure a procedural

deprivation by providing a later procedural remedy; only when the state refuses to provide a

process sufficient to remedy the procedural deprivation does a constitutional violation actionable

under section 1983 arise.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994). In this case,



       10
          Because we hold that the plaintiffs were deprived of a state-created liberty interest, we
need not determine whether they were deprived of a liberty interest that would exist even apart
from state policy – in other words, whether the deprivation of yard time “exceed[s] the sentence
in such an unexpected manner as to give rise to protection by the Due Process Clause of its own
force,” Sandin, 515 U.S. at 484, 115 S.Ct. at 2300.
       11
          For instance, one such notice (dated April 26, 1993) told each plaintiff that he had been
added to the YSL “due to an incident which occurred on April 13, 1993.” Although the notice
does not specifically name the incident, the plaintiffs were surely aware that the referenced
incident was their escape attempt.

                                                 10
the plaintiffs were given a full appeal process (which they used repeatedly) after the decision to

put them on the YSL was made. Furthermore, the purpose of the advance notice requirement is

“to afford the prisoner an opportunity to challenge the contemplated action and to understand the

nature of what is happening to him.” Vitek, 445 U.S. at 496, 100 S.Ct. at 1265. Those purposes

were entirely fulfilled by the notice procedure used in this case. Finally, in light of the

substantial deference to be accorded to prison officials in prison administration, see Bell v.

Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 1878-79, 60 L.Ed.2d 447 (1979), we are hesitant

to require strict compliance with the “advance” in the advance notice requirement. We therefore

find that the notice in this case was sufficient.

        In regard to the second requirement – a written statement of reasons – the plaintiffs were

repeatedly made aware, in writing, of the reasons for their placement on the YSL.

        The third requirement mandates that prisoners be given the opportunity to present

evidence. This requirement, however, applies only when permitting a prisoner to present

evidence would not jeopardize institutional safety. See Ponte v. Real, 471 U.S. 491, 499, 105

S.Ct. 2192, 2197, 85 L.Ed.2d 553 (1985). The plaintiffs in this case had repeatedly shown

themselves to be a threat to the safety of the prison; it was therefore well within the defendants’

discretion to deny them the opportunity to present evidence. See Battle v. Barton, 970 F.2d 779,

782-83 (11th Cir. 1992) (holding that demonstrated uncooperativeness of inmate justified his

absence from a disciplinary hearing). Furthermore, under the circumstances, the plaintiffs had

no need to present evidence because the facts underlying the defendants’ decision – the instances

of misbehavior by the plaintiffs – were not in dispute.




                                                    11
       In sum, the process given to the plaintiffs in conjunction with their placement on the

YSL, although minimal, was sufficient to satisfy the requirements of the Due Process Clause.



                                                 C.

       Finally, Bass and Bean challenge their placement on the YSL on the ground that it

deprives them of their Fourteenth Amendment right to the equal protection of the laws. Bass and

Bean allege that death row inmates are given four hours of yard per week, while persons on the

YSL have none. Because non-death row inmates are not a protected class, we review this

discriminatory treatment to see if it has a rational basis. See Chandler v. Georgia Pub.

Telecomms. Comm’n, 917 F.2d 486, 489 (11th Cir. 1990). It does: Death row inmates have not

necessarily shown themselves to be a threat to the internal operations of the prison, while

persons on the YSL have. We therefore reject the plaintiffs’ equal protection claim.



                                                 III.

       In addition to their substantive challenges to the district court’s decision, the plaintiffs

claim that the district court abused its discretion in denying their motions for appointment of an

expert witness and appointment of counsel. See Steele v. Shah, 87 F.3d 1266, 1270-71 (11th Cir.

1996) (noting that the denial of motions for an expert witness and for counsel are reviewed for

an abuse of discretion). We find no abuse of discretion for the reasons stated in this section.



                                                 A.




                                                 12
       The plaintiffs moved the court to appoint Dr. Michael L. Pollock, Professor of Medicine

and Director of the Center for Exercise Science at the University of Florida, as an expert witness

pursuant to Fed. R. Evid. 706. Dr. Pollock presumably would have testified as to the potentially

harmful effects of the total deprivation of outdoor exercise. Such evidence would support a

claim of cruel and unusual punishment by demonstrating that placement on the YSL involves the

“infliction of pain,” see supra part II.A, and might also support the plaintiffs’ due process claim

by demonstrating that placement on the YSL “imposes atypical and significant hardship” on

inmates, thereby triggering due process protections, see supra part II.B. These elements of the

plaintiffs’ claims, however, are not in need of additional evidentiary support. Instead, as

discussed previously, plaintiffs’ cruel and unusual punishment claim fails because they have not

shown that the infliction of pain was “unnecessary” or “wanton,” and their due process claim

fails because they have been given the process that was due. Thus, the testimony of Dr. Pollock

was unnecessary, and the district court did not abuse its discretion by refusing to appoint him as

an expert witness.12



                                                 B.

       We also hold that the district court did not abuse its discretion by denying the plaintiffs’

motion for appointment of counsel. A plaintiff in a civil case has no constitutional right to

counsel. A court may, however, pursuant to 28 U.S.C. § 1915(e)(1), appoint counsel for an

indigent plaintiff. The district court has broad discretion in making this decision, see Killian v.


       12
          The plaintiffs did not request any form of medical exam that might have discovered
that they suffered, or had suffered, severe physical or mental ailments that were willfully ignored
by the defendants.

                                                 13
Holt, 166 F.3d 1156, 1157 (11th Cir. 1999), and should appoint counsel only in exceptional

circumstances, see Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992). In this case, there were

no exceptional circumstances that would require the appointment of counsel. The core facts of

the case – the conditions of the plaintiffs’ confinement – are not in dispute, and their legal claims

– violations of the Eighth and Fourteenth Amendments – are straightforward. The plaintiffs, like

any other litigants, undoubtedly would have been helped by the assistance of a lawyer, but their

case is not so unusual that the district court abused its discretion by refusing to appoint counsel.13



                                                 IV.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




       13
          In conjunction with their appointment of counsel claim, the plaintiffs challenge the
Florida State Prison’s restrictive policies in regard to prisoner access to legal materials. This is
in essence an access to courts claim, for which the plaintiffs must show “actual injury” – in other
words, the plaintiffs must demonstrate that they had a legitimate claim that they were unable to
pursue due to the prison’s restrictions. See Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th
Cir. 1998). No such showing has been made here.

                                                 14
