Delaney, Glen v. DeTella, George

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4145

GLEN DELANEY,

Plaintiff-Appellee,

v.

GEORGE DeTELLA, GLENN MALONE,

CHRISTOPHER HUGHES, EUGENE McADORY,

CLARENCE WRIGHT, DONALD BURNS, and

DAVID WALKER,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 4476--David H. Coar, Judge.

Argued June 4, 2001--Decided July 9, 2001

Before RIPPLE, EVANS, and WILLIAMS, Circuit

Judges.

EVANS, Circuit Judge. Glen Delaney, an

inmate at Stateville Correctional Center

in Illinois, filed this suit under 42

U.S.C. sec. 1983 alleging an Eighth

Amendment violation for being denied all

out-of-cell exercise opportunities for 6

months. The defendants, six guards and

the prison warden, filed a motion for

summary judgment asserting a qualified

immunity defense. District Judge David H.

Coar denied the motion and the defendants

appeal.

In January 1995, Delaney was placed in

Stateville’s segregation unit. While in

segregation, he was allowed 5 hours of

out-of-cell exercise time (yard

privileges) per week as called for by a

prison regulation./1

In the spring of 1996, Stateville

instituted a "lockdown" for the purpose

of reviewing security measures,

conducting a "shakedown" of inmates, and

redesigning prisoner cells. The lockdown

continued for just over 6 months, and

during this time Delaney was denied all

out-of-cell exercise. His movements were

restricted to a once a week shower, three

family visits (one in April, one in May,

and one in June), and two brief trips to

the prison’s medical unit. During these

excursions he was shackled and chained to

the inmate in front and behind him. A

trip to either the medical unit or the

visitation center took around 10 minutes.

The segregation cells are small and

cramped, measuring only about 122 inches

by 43 to 56 inches. During the 6-month

lockdown, Delaney says he repeatedly

spoke with the correctional officer

defendants (McAdory, Malone, Hughes,

Walker, Burns, and Wright) about getting

yard privileges so he could exercise. He

also filed a grievance with Warden George

DeTella. However, no out-of-cell exercise

opportunities were offered to Delaney or,

for that matter, to any other segregated

inmates during the long lockdown.

As a result of being denied an

opportunity to exercise for over 6

months, Delaney contends he suffered from

migraines, heartburn, stomach cramps,

neck pains, constipation, lethargy, and

depression. Although he received some

medication for his ailments, he requested

medical attention from more senior

personnel and filed grievances against

several prison medical technicians.

Before Judge Coar, the defendants argued

that penological interests justified the

6-month denial of exercise privileges and

that guards (but not Warden DeTella) were

not personally involved in the lockdown

decision. On appeal, the defendants shift

their focus, arguing primarily that

Delaney did not suffer a serious injury

and that even if he did, they were not

told of the severity of his complaint.

We have jurisdiction over an

interlocutory appeal from a denial of

qualified immunity only when no factual

issues need be resolved. Behrens v.

Pelletier, 516 U.S. 299, 308 (1996);

Levenstein v. Salafsky, 164 F.3d 345, 346

(7th Cir. 1998). We must review the

district court’s denial of qualified

immunity de novo, considering all

undisputed facts in the light most

favorable to Delaney. Khuans v. School

Dist. 110, 123 F.3d 1010, 1013 (7th Cir.

1997).

In reviewing the affirmative defense of

qualified immunity, we apply a two-step

approach. As a threshold issue, we

determine if Delaney has asserted a

violation of a constitutional right.

County of Sacramento v. Lewis, 523 U.S.

833, 841 n. 5 (1998); Kitzman-Kelley v.

Warner, 203 F.3d 454, 457 (7th Cir.

2000). We next consider whether the right

was clearly established at the time the

alleged violation occurred. Wilson v.

Layne, 526 U.S. 603, 609, 119 S. Ct.

1692, 1697 (1999). Thus, the judge-made

qualified immunity doctrine serves to

protect government officials from

insubstantial suits based on

unforeseeable changes in the law. See

Crawford-El v. Britton, 523 U.S. 574, 590

(1998).

Whether the first prong of a qualified

immunity defense, as outlined by the

Court in Lewis, is a mandatory step or

merely a recommendation remains, to some

extent, a bit of an open question. See

Hudson v. Hall, 231 F.3d 1289, 1296 f.5

(11th Cir. 2000); Kalka v. Hawk, 215 F.3d

90 (D.C. Cir. 2000); Horne v. Coughlin,

191 F.3d 244 (2nd Cir. 1999). However, in

recent cases where the Supreme Court

considered qualified immunity defenses on

summary judgment, Saucier v. Katz, 2001

WL 672265, ___ S. Ct. ___ (June 18,

2001), Wilson v. Layne, 526 U.S. 603, and

Conn v. Gabbert, 526 U.S. 286, 119 S. Ct.

1292 (1999), it first addressed if a

constitutional violation was asserted

before moving on to the question of

whether it was "clearly established" at

the time of the alleged violation.

These cases, however, require only that

a plaintiff allege a constitutional

deprivation; thus we are required to

determine only whether Delaney’s

allegations, if true, state a claim of

deprivation. Wilson, 526 U.S. at 609;

Conn, 526 U.S. at 290; see also Siegert

v. Gilley, 500 U.S. 226, 232 (1991)

(prior to deciding if right is "clearly

established," must determine if

constitutional claim is asserted at all

and this determination is "purely

legal").

An Eighth Amendment claim has two

components-- objective and subjective. To

satisfy the objective component, "the

deprivation alleged must be, objectively,

’sufficiently serious.’" Henderson v.

Sheahan, 196 F.3d 839, 845 (7th Cir.

1999) (citing Farmer v. Brennan, 511 U.S.

825, 834 (1994)). "Therefore, ’extreme

deprivations are required to make out a

conditions-of-confinement claim.’" Id.

(quoting Hudson v. McMillian, 503 U.S. 1,

9 (1992)).

The subjective component relates to a

defendant’s state of mind and requires a

showing of deliberate indifference. At a

minimum in a case like this, an inmate

must allege "actual knowledge of

impending harm easily preventable." Jack

son v. Duckworth, 955 F.2d 21, 22 (7th

Cir. 1992) (quoting Duckworth v. Franzen,

780 F.2d 645, 653 (7th Cir. 1985)). "A

failure of prison officials to act in

such circumstances suggests that the

officials actually want the prisoner to

suffer the harm." Id.

Delaney contends that to deny a

segregated inmate all out-of-cell

exercise opportunities for 6 months

constitutes an objectively serious

deprivation of a basic human need. In

determining whether an act or omission

constitutes cruel and unusual punishment,

the Eighth Amendment provides little

guidance. Thus, courts have added

substance to its meager admonishment by

consulting the "evolving standards of

decency that mark the progress of a

maturing society." Rhodes v. Chapman, 452

U.S. 337, 346 (1981). Thus, conditions

which may have been acceptable long ago

may be considered unnecessarily cruel in

light of our growing understanding of

human needs and the changing norms of our

society. Davenport v. DeRobertis, 844

F.2d 1310, 1315 (1988) ("The conditions

in which prisoners are housed, like the

poverty line, is a function of a

society’s standard of living. As that

standard rises, the standard of minimum

decency of prison conditions, like the

poverty line, rises too."). While the

Constitution does not require that

prisons be comfortable, prison conditions

do violate the Constitution where they

"deprive inmates of the minimal civilized

measure of life’s necessities." Rhodes,

452 U.S. at 347. Therefore, we consider

whether a complete denial of reasonable

exercise opportunities for 6 months falls

below contemporary standards.

In recent years we have not only

acknowledged that a lack of exercise can

rise to a constitutional violation,

French v. Owen, 777 F.2d 1250, 1255 (7th

Cir. 1986), but have concluded that

"exercise is now regarded in many

quarters as an indispensable component of

preventive medicine." Anderson v. Romero,

72 F.3d 518, 528 (7th Cir. 1995). Given

current norms, exercise is no longer

considered an optional form of

recreation, but is instead a necessary

requirement for physical and mental well-

being.

Although we have recognized the value of

exercise and its medicinal effects, we

have also consistently held that short-

term denials of exercise may be

inevitable in the prison context and are

not so detrimental as to constitute a

constitutional deprivation. Thomas v.

Ramos, 130 F.3d 754, 764 (7th Cir. 1997)

(70-day denial permissible); Harris v.

Fleming, 839 F.2d 1232, 1236 (7th Cir.

1988) (28-day denial not deprivation);

Shelby County Jail Inmates v. Westlake,

798 F.2d 1085, 1089 (7th Cir. 1986)

(limited recreational activities

sufficient, where average prison stay was

10 days or less); Caldwell v. Miller, 790

F.2d 589, 601 (7th Cir. 1986) (no

deprivation where exercise was denied for

30 days, but then allowed one hour indoor

exercise for next 6 months); but see

Antonelli v. Sheahan, 81 F.3d 1422, 1432

(7th Cir. 1996) (viable constitutional

claim where prisoner denied recreational

opportunities for 7 weeks); Jamison-Bey

v. Thieret, 867 F.2d 1046, 1048 (1989)

(reversing summary judgment for prison

officials where segregated prisoner

denied exercise for 101 days).

Here, both in duration and severity, the

nature of Delaney’s alleged deprivation

was significant and serious, and

apparently no alternatives were made

available to mitigate the effects of the

deprivation. We recently noted that

segregation is akin to solitary

confinement and that such confinement,

uninterrupted by opportunities for out-

of-cell exercise "could reasonably be

described as cruel and, by reference to

the current norms of American prisons,

unusual." Pearson v. Ramos, 237 F.3d 881,

884 (7th Cir. 2001). Except for limited

calisthenics inside his small cell, the

defendants do not argue that Delaney had

any other recreational alternatives or

access to common areas which may have

mitigated the severity of a 6-month

denial of yard privileges. See Harris,

839 F.2d at 1236 (no serious deprivation

where segregated inmate retained ability

to move freely through unit and could

improvise exercise regimen); Shelby, 798

F.2d at 1089 (no violation where

prisoners had access to common area

exercise bikes). Here, for 6 months,

Delaney remained in a cell the size of a

phone booth without any meaningful chance

to exercise.

Nor can the defendants argue that the 6-

month denial was brought on by Delaney’s

misconduct or propensity to escape. See

Pearson, 237 F.3d at 885 (four

consecutive, 90-day denials of out-of-

cell exercise privileges for serious

violations of prison disciplinary rules

not cruel and unusual punishment);

LeMaire v. Maass, 12 F.3d 1444, 1457-58

(9th Cir. 1993) (no Eighth Amendment

violation where prisoner denied out-of-

cell exercise for 5 years because inmate

posed constant threat of attack); Martin

v. Tyson, 845 F.2d 1451, 1456 (7th Cir.

1988) (no constitutional violation for 4-

month denial of exercise where prisoner

posed escape risk). Rather, the parties

agree that Delaney was not a fractious

inmate and his yard privileges, prior to

the lockdown, were never withheld for

disciplinary purposes.

While there may in certain cases be

legitimate penological reasons justifying

an extended denial of exercise

privileges, here none are presented.

Citing the lockdown, the defendants

merely say, in conclusory fashion, that

allowing inmates yard time for exercise

would pose a "potential security threat."

This unsupported statement is

insufficient. Given the length of this

exercise restriction, the state

defendants should have, but didn’t,

advance any legitimate penological need

for denying all forms of outside

exercise.

The defendants also argue that the

denial of all exercise opportunities was

not an objectively serious deprivation

because Delaney didn’t provide expert

testimony showing that his physical

health was threatened by the denial. But

as we have noted, on a motion for

qualified immunity we consider whether

plaintiff’s allegations, if true, state

a claim of deprivation. Wilson, 526 U.S.

603, 609. To decide if qualified immunity

should be granted we ask only, if viewed

in the light most favorable to Delaney,

was a deprivation alleged? Thus, we

consider whether it was possible that

serious injuries were sustained, not

whether it was probable. See Antonelli,

81 F.3d 1422, 1432 (viable Eighth

Amendment claim for denial of exercise

where inmate alleged "health and physical

well being have deteriorated").

Moreover, while we have not waived the

injury requirement for claims involving

the denial of exercise, but see Lopez v.

Smith, 203 F.3d 1122, 1133 f.15 (9th Cir.

2000) (where inmate alleges long-term

denial of exercise--in excess of 6 weeks-

-no showing of adverse medical effects

required), we have acknowledged the

strong likelihood of psychological injury

when segregated prisoners are denied all

access to exercise for more than 90 days.

Davenport v. DeRobertis, 844 F.2d 1310,

1313 ("[T]he record shows, what anyway

seems pretty obvious, that isolating a

human being from other human beings year

after year or even month after month can

cause substantial psychological damage .

. . ."). We have also noted, in

conditions-of-confinement cases, that

there may be some interplay between the

severity of the deprivation alleged and

the required showing of injury. Dixon v.

Godinez, 114 F.3d 640, 643 (given

severity and duration of prison

condition,"[c]old temperatures need not

imminently threaten inmates’ health to

violate the Eighth Amendment"); Del Raine

v. Williford, 32 F.3d 1024, 1035 (7th

Cir. 1994) (need not allege frostbite or

hypothermia to establish that cold

temperatures endangered inmate’s health).

The defendants also are wrong in

concluding that only a showing of

physical injury can satisfy an Eighth

Amendment claim. See Hudson, 503 U.S. 1,

16 (Blackmun, J., concurring) ("It is not

hard to imagine inflictions of

psychologial harm--without corresponding

physical harm--that might prove to be

cruel and unusual punishment."). Here,

Delaney alleges both physical and mental

injuries including migraines, heartburn,

stomach cramps, neck pains, constipation,

lethargy, and depression. It is possible

that his mental injuries, along with the

attendant physical symptoms, were

sufficiently severe. He was given

medications and taken to the health unit

twice, and he repeatedly requested

additional treatment. Thus, Delaney has

alleged an injury from an objectively

serious deprivation.

We now turn to the subjective prong of

this claim, the element of deliberate

indifference. Wilson v. Seiter, 501 U.S.

294, 303 (1991). "[A]n Eighth Amendment

claimant need not show that a prison

official acted or failed to act believing

that harm actually would befall an

inmate; it is enough that the official

acted or failed to act despite his

knowledge of a substantial risk of

serious harm." Farmer v. Brennan, 511

U.S. 825, 842 (1994). Moreover, in

determining whether prison officials had

knowledge of the potential harm, we

consider whether "the circumstances

suggest that the defendant-official being

sued had been exposed to information

concerning the risk and thus ’must have

known’ about it . . . ." Id.

Delaney argues that these defendants

were subjectively aware that denying

prisoners access to all out-of-cell exer

cise for more than 90 days posed a

substantial risk of serious harm. In 1988

we upheld an injunction requiring prison

officials (at Stateville) to provide 5

hours of exercise per week to prisoners

in segregation for more than 90 days.

Davenport, 844 F.2d 1310, 1314. We noted

that at trial the medical director of the

Illinois Department of Corrections

testified to the "serious adverse effects

on the physical and mental health" of

segregated inmates who were denied access

to exercise. Id. at 1313. The risk

identified in Davenport was acknowledged

in the institutional directive requiring

5 hours of exercise per week for

segregated inmates.

Also, the defendants argue that they

were unaware that the denial of exercise

posed a significant risk to Delaney.

However, it is enough that Delaney

alleges that they acted with deliberate

indifference towards all members of a

class of which he is a part, rather than

having to allege that they acted with

particularized malice towards him. See

Crawford-El, 523 U.S. 574, 592 ("When

intent is an element of a constitutional

violation . . . the primary focus is not

on any possible animus directed at the

plaintiff; rather, it is more specific,

such as an intent to disadvantage all

members of a class that includes the

plaintiff . . . ."). Deliberate indiffer

ence is akin to criminal recklessness;

thus, it is enough that defendants are

aware that their action may cause injury

without being able to divine the most

likely victim. Farmer, 511 U.S. at 843

("Nor may a prison official escape

liability for deliberate indifference by

showing that, while he was aware of an

obvious, substantial risk to inmate

safety, he did not know that the

complainant was especially likely to be

assaulted by the specific prisoner . . .

.").

Here, Delaney alleges that he repeatedly

complained to each of the named

defendants, filed a grievance, and

requested medical attention frequently

because he could not exercise outside his

cell. In spite of these repeated requests

and their knowledge of the potential

risk, Delaney claims the defendants did

nothing. This inaction satisfies the sub

jective element of an Eighth Amendment

claim. See Jackson, 955 F.2d 21, 22

(inmate’s allegation that prison officers

knew of unconstitutional conditions but

did nothing was sufficient to show

"deliberate indifference").

Having found that Delaney has alleged a

constitutional violation, we consider

whether the right he asserts was clearly

established prior to the spring of 1996.

"’[C]learly established’ for purposes of

qualified immunity means that ’[t]he

contours of the right must be

sufficiently clear that a reasonable

official would understand that what he is

doing violates that right.’" Wilson v.

Layne, 526 U.S. 603, 614-15 (quoting

Anderson v. Creighton, 483 U.S. 635, 640

(1987)); Lanigan v. Village of East Hazel

Crest, 110 F.3d 467, 472 (7th Cir. 1997).

"[T]he inquiry focuses on the objective

legal reasonableness of the action, not

the state of mind or good faith of the

officials in question." Levenstein v.

Salafsky, 164 F.3d 345, 350 (7th Cir.

1998) (quoting Erwin v. Daley, 92 F.3d

521, 525 (7th Cir. 1996)).

While the right must be defined at the

appropriate level of specificity, it is

not to say "that an official action is

protected by qualified immunity unless

the very action in question has

previously been held unlawful . . . ."

Wilson, 526 U.S. at 615. Rather, it is

enough if, based on the pre-existing law,

the unlawfulness of the conduct is

apparent. Id.

As early as 1986--10 years before this

lockdown was instituted--we held that a

lack of exercise could rise to a

constitutional violation. French, 777

F.2d 1250, 1255. Then in 1988 we decided

Davenport v. DeRobertis, 844 F.2d 1310,

arising from this same segregation unit.

We upheld the district court’s injunction

requiring Stateville officials to provide

segregated inmates "with at least five

hours of exercise time per week in order

to comply with the Eighth Amendment." Id.

at 1315. We based our decision in part on

the impressive number of cases from our

sister circuits which held that failure

to provide inmates with the opportunity

for at least 5 hours of exercise a week

outside the cell raised serious

constitutional questions. Id. A year

before this lockdown was instituted, we

again noted that "[t]o deny a prisoner

all opportunity for exercise outside his

cell would, the cases suggest, violate

the Eighth Amendment unless the prisoner

posed an acute security risk if allowed

out of his cell for even a short time."

Anderson v. Romero, 72 F.3d 518, 527 (7th

Cir. 1995). Thus, years before the

lockdown at issue here was instituted,

the case law clearly established that

extended denials of exercise privileges

raised constitutional concerns./2 In

light of Davenport and Anderson, it was

objectively unreasonable for prison offi

cials to institute a complete 6-month

denial of all out-of-cell exercise

privileges for segregated prisoners.

Finally, we note that it may very well

be that the defendant guards have no

liability here because they did not

establish the lockdown. If they had no

discretion, then it would appear that

only Warden DeTella is a proper

defendant. But we can’t say that now on

this record, for the defendants have made

no effort to, for instance, outline the

chain of command--with responsibilities--

assigned to each. On this record, Judge

Coar was right to deny the qualified

immunity plea of all defendants. While

all of these defendants may have other

defenses available to them, at this stage

of the case the order denying them an

early exit on qualified immunity grounds

is AFFIRMED and the case REMANDED for

further proceedings.

FOOTNOTES

/1 The Stateville Institutional Directive

05.04.000K3 at II.C.9 provides:

Inmates who have been housed in segregation less

than 90 days will be afforded a minimum of one

hour of recreational activity outside their cells

per week. Recreational activity will be noted in

a log. Five hours of recreational yard time shall

be available to all inmates who have served a

minimum of 90 days in segregation status in

compliance with the Davenport Consent Decree.

/2 To support its argument that the pre-1996 case

law on the denial of exercise was unclear, the

defendants cite two cases outside this circuit.

Strickler v. Waters, 989 F.2d 1375, 1380 (4th

Cir. 1993) (6 months without outdoor exercise did

not constitute a constitutional violation where

inmates had access to day room for indoor exer-

cise during waking hours), and Wishon v. Gammon,

978 F.2d 446, 449 (8th Cir. 1992) (limiting out-

of-cell exercise to 45 minutes once a week did

not violate the Eighth Amendment rights where

inmate was confined to protective custody for his

own safety). Both cases are easily distinguish-

able. Neither case involved a complete denial of

all out-of-cell exercise or recreational options.