867 F.2d 609Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.James Calvin MITCHELL, Plaintiff-Appellant,v.James MARTIN, Governor;  Nathan Rice;  Bobby Watson;  BobSeymore, Defendants- Appellees,
No. 87-6592.
United States Court of Appeals, Fourth Circuit.
Argued:  Oct. 5, 1988.Decided:  Jan. 12, 1989.

Mack Sperling (Brooks, Pierce, McLendon, Humphrey & Leonard, on brief), for appellant.
Sylvia Hargett Thibaut, Assistant Attorney General (Lacy H. Thornburg, Attorney General;  David Parker, Associate Attorney General, on brief), for appellee.
Before DONALD RUSSELL, JAMES DICKSON PHILLIPS and CHAPMAN, Circuit Judges
PER CURIAM:


1
James Calvin Mitchell, a North Carolina inmate, brought this 42 U.S.C. Sec. 1983 action for damages against the Governor of North Carolina, the Warden of Central Prison, the Associate Warden, and the Prison Program Director, alleging that actions taken by the defendants while he was incarcerated amounted to violation of his Fourteenth and Eighth Amendment rights.  Summary judgment was granted in favor of the defendants.  Upon appeal, this Court affirmed in part, vacated in part, and remanded the claim of the plaintiff that the defendants had violated his Eighth Amendment rights in imposing restrictions on his right to exercise.


2
Thereafter, the defendants-appellees filed a petition for rehearing, contending that this court should rehear its decision to remand plaintiff's claim regarding denial of exercise and outdoor activity, and that the decision was in conflict with decisions of the Supreme Court and of this Circuit.  The petition for rehearing was granted and the case was set down for formal briefing and oral argument.


3
For the reasons stated in our previous opinion1 we order that the entry of summary judgment on plaintiff's claim of denial of exercise and outdoor activity be vacated, and that the case be remanded to the District Court for the development of additional facts on this issue, particularly whether the plaintiff offered any proof of injury, with an opportunity to both parties to present any additional evidence they may desire.


4
REVERSED IN PART and REMANDED WITH INSTRUCTIONS.



1
 James Calvin Mitchell v. James Martin, et al., No. 87-6592 (4th Cir.), December 17, 1987, unpublished


