Facilities Review Panel
Charleston, West Virginia
Counsel for Petitioner
Silas B. Taylor
Senior Deputy Attorney General
Richard M. Gutmann
Assistant Attorney General
State of West Virginia
Charleston, West Virginia
Counsel for Respondents
This Opinion was delivered PER CURIAM.
"A writ of mandamus will not issue unless three elements co-exist--(1) a clear legal right in the petitioner to the relief
sought; (2) a legal duty on the part of respondent to do the thing
which the petitioner seeks to compel; and (3) the absence of
another adequate remedy." Syl. Pt. 2, State ex rel. Kucera v. City
of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
Petitioner, Gregory Wagner, M.D., brings this petition seeking
a writ of mandamus pursuant to this Court's original jurisdictionSee footnote 1
on behalf of the Facility Review Panel.See footnote 2 Petitioner seeks to
compel respondents Billy Burke as Director of the Regional Jail and
Correctional Facility Authority and Jack Alsop as the Chairperson
of the West Virginia Regional Jail and Correctional Facility
Authority to revise the architectural plans for the South Central
Regional Jail ("jail"). The specific revisions sought by
petitioner are the creation of an outdoor exercise space measuring
sixty feet by eighty feet with adequate space and equipment to
permit outdoor sports activities and the elimination of double
celling in the architectural design for jail cells measuring
approximately seventy feet. Having fully reviewed this matter, we
determine that sufficient grounds do not exist for the issuance of
a writ of mandamus at this time. Accordingly, the writ of mandamus
The only regional jail at issue here is the one which is to be built in Kanawha County, West Virginia. Petitioner asserts that the architectural plans for the jail violate state regulations pertaining to construction, operation, and maintenance of jails.
The regulations at issue were drafted by the West Virginia Jail and
Prison Standards Commission pursuant to West Virginia Code § 31-20-9 (Supp. 1992) and became effective on April 5, 1988. See 7 W. Va.
C.S.R. § 95-1-1 to -24.61 (Legislative Rules, Jail and Prison
Standards Commission, Series 1, West Virginia Minimum Standards for
Construction, Operation, and Maintenance of Jails).
The legislative rules provide in 7 W. Va. C.S.R. § 95-1-8.19
for the inclusion of exercise areas in all jails. Specifically,
that rule provides as follows:
Exercise Areas. Space outside the cell or
room shall be provided for inmate exercise.
Indoor and outdoor exercise areas shall be
secure and available to all inmates. Outdoor
areas shall have adequate space and equipment
to permit regular outdoor sports activities.
For facilities with over one hundred (100)
inmates, this area shall be increased in
proportion to the inmate population and shall
contain a variety of equipment. Indoor
exercise programs may be conducted in a multi-purpose room or dayroom provided the space is
available and the location is acceptable.
Indoor space is an area in which lighting,
temperature and ventilation is artificially
The legislative rule providing for exercise areas in jails contains no specifics regarding the dimensions of the areas required to permit such activities. Relying on two unrelated cases involving completely different entitiesSee footnote 3 which culminated in the entry of
consent decrees, petitioner asserts that the jail must have an
outdoor exercise area of at least sixty feet by eighty feet.
Petitioner states in his petition that the outdoor recreation
areas are only twenty-eight feet by forty-two feet and that there
are six separate recreation areas of this size. Respondent,
however, states that in addition to the six recreation areas which
are each twenty-eight feet by forty-two feet, there is a separate
outdoor exercise area included in the design which will be 10,500
square feet in size. Respondents further note that there is an
indoor gymnasium included in the design which is 99 feet by 65.33
feet or 6,467.67 square feet in size. Respondents explain that the
indoor gymnasium will be used for various types of sports,
including basketball, whereas the outdoor exercise areas will be
used for such activities as weight lifting, handball, and
The standard for issuance of a writ of mandamus is well- established: "A writ of mandamus will not issue unless three elements co-exist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. Pt. 2, State ex rel. Kucera v. City
of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969). Based on
respondent's representations that the architectural plans for the
regional jail do include an outdoor recreational area which
exceeds the size of the area sought by the petitioner, sufficient
grounds do not exist for the issuance of a writ of mandamus.See footnote 4 See
id. Respondents are directed, however, to permit petitioner's
counsel to examine the architectural plans pertaining to the jail
for verification of the inclusion of an outdoor exercise area as
Petitioner's second ground for seeking a writ of mandamus
arises from the fact that brackets are currently being installed in
the jail walls which would structurally enable double celling in
the future. The regulations pertinent to this issue are
subsections 8.7, 8.8, and 8.10 of the West Virginia Code of State
Rules § 95-1-8. Those regulations provide as follows:
8.7 Single occupancy. Only one inmate shall
occupy a cell or detention room designed for
8.8 Floor space. All single rooms or cells
in detention facilities shall have at least
seventy (70) square feet of floor space.
8.10 Multiple occupancy. Where used, multiple occupancy rooms shall house no less than four (4) and no more than fifty (50) inmates each. Inmates shall be screened prior to admission for suitability to group living.
Multiple occupancy rooms shall provide for: .
. . (b) A minimum floor area of fifty (50)
square feet per occupant in the sleeping area
and a clear floor to ceiling height of not
less than not less than eight (8) feet;
. . . .
The cells at issue which are currently being equipped with
brackets which could enable double celling measure approximately
seventy square feet. Accordingly, the applicable regulations now
in force prohibit double celling in cells of such size. We can
find no violation of the regulations, however, by the mere
installation of brackets which would enable double celling. In
fact, the installation of such brackets during the construction
phase is obviously a prudent step should the regulations
controlling jails be amended to permit double celling. While we do
not find a violation to have occurred through the installation of
brackets, respondents are nonetheless placed on notice to comply
with all orders and regulations which prohibit double celling.
Based on the foregoing opinion, the writ of mandamus sought by
petitioner is hereby denied.
Footnote: 1See W. Va. Const. art. VIII, § 3 and W. Va. Code § 51-1-3 (1981).
Footnote: 2See W. Va. Code § 49-5-16b (1992).
Footnote: 3Petitioner places precedential reliance on two cases which involved separate entities and resulted in consent decrees. No res judicata effect can be placed on those consent decrees because the parties, issues, and relief sought are not identical. See State ex rel. Div. of Human Servs. v. Benjamin, P.B., Syl. Pt. 2, 183 W. Va.
220, 395 S.E.2d 220 (1990). Furthermore, because a consent decree is not an adjudication by a court, it does not, by definition, permit the application of the doctrine of res judicata. See id. at syl. pt. 1.
Footnote: 4By this ruling, we do not infer in any fashion that the optimum size of an outdoor recreational area for a jail is 60 feet by 80 feet. Our decision merely reflects that the relief sought is apparently already in place in the current architectural plans and therefore, this aspect of the petition is moot.