UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31371
Summary Calendar
FREDDIE RAY LEWIS,
Plaintiff-Appellant,
versus
CHRIS SMITH, III, ET AL.,
Defendants,
H. JAMES, Lieutenant; BOLGER, Sergeant; PRUITT, Patrolman; K.
NOBLE, Lieutenant; COOPER, Patrolman; BOBBY D. HICKMAN; R. ALLEN,
Patrolman; S. DESMOND, Patrolman; CITY OF LEESVILLE,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(97-CV-1420)
_________________________________________________________________
November 13, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Concerning Freddie Lewis’ 42 U.S.C. § 1983 action arising out
of his confinement for approximately 600 days in the City of
Leesville jail, partial summary judgment was granted Defendants on
numerous issues, with a jury trial held on the remainder. At the
close of Lewis’ case, judgment as a matter of law was granted to
several Defendants. The jury returned a verdict for the remaining
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Defendants. Lewis’ timely motion for judgment as a matter of law
concerning claimed unconstitutional confinement was denied.
Lewis appeals the adverse summary judgment on three of his
claims; the exclusion of expert testimony; and the denial of his
motion for judgment as a matter of law on the issue of
unconstitutional conditions of confinement.
Concerning the summary judgment on the issues of denial of
physical exercise, denial of access to the courts, and denial of
due process, the ruling is reviewed de novo, applying the same test
as the district court. E.g., Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 912 (5th Cir.), cert. denied, 506 U.S. 832 (1992).
“Summary judgment is proper ‘if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to [a] judgment
as a matter of law.’” Id. (quoting FED. R. CIV. P. 56(c)).
For the denial of the right to exercise claim, Lewis contends
he was unconstitutionally denied that right because the ability to
exercise was contingent upon trustee status, which he refused.
Deprivation of exercise is not a per se constitutional violation;
an extended deprivation of exercise opportunities, however, may
violate an inmate's right not to be subjected to cruel and unusual
punishment. Miller v. Carson, 563 F.2d 741, 751 n.12 (5th Cir.
1977)(deprivation of exercise not a per se constitutional violation
but “may constitute an impairment of health forbidden under the
eighth amendment”); see also Stewart v. Winter, 669 F.2d 328, 336
n.19 (5th Cir. 1982) (failure to provide recreation program does
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not, by itself, constitute cruel and unusual punishment). To
succeed on an Eighth Amendment claim that he was denied adequate
recreation, Lewis must establish: (1) that prison officials failed
to provide him with adequate exercise opportunities, see Ruiz v.
Estelle, 679 F.2d 1115, 1152 (5th Cir.)(“Courts have frequently
stated that confinement of inmates for long periods of time without
opportunity for regular physical exercise constitutes cruel and
unusual punishment.”), modified, 688 F.2d 266 (5th Cir. 1982),
cert. denied, 460 U.S. 1042 (1983); see also Miller, 563 F.2d at
750 (“inmates must be allowed reasonable recreational
facilities”)(internal quotation marks omitted); and (2) that prison
officials acted with deliberate indifference to a substantial risk
of harm to his health and safety, see Farmer v. Brennan, 511 U.S.
825, 828 (1994)(“A prison official’s deliberate indifference to a
substantial risk of serious harm to an inmate violates the Eighth
Amendment.”)(internal quotation marks omitted); Herman v. Holiday,
238 F.3d 660, 664 (5th Cir. 2001) (requiring showing of deliberate
indifference to establish Eighth Amendment claim for unhealthful
conditions at detention center).
This claim is meritless because it is premised on the
erroneous assumption that Lewis had an absolute right to exercise
or recreation. As discussed, what is constitutionally required,
however, is that he not be confined for long periods without the
opportunity for regular physical exercise. See Ruiz, 679 F.2d at
1152. He concedes he was provided the opportunity for outside
recreation/exercise when he was offered trustee status; he refused
that status, however, because he did not want to work for the city.
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The opportunity for exercise was afforded; any deprivation was
self-imposed.
Applying the same logic used in his exercise claim, Lewis
contends he was denied his right to access to the courts because
prisoners’ use of the city’s public library was also conditioned
upon trustee status. A prisoner must allege a deliberate denial of
his right of access to the courts to allege the deprivation of a
substantive constitutional right, Jackson v. Procunier, 789 F.2d
307, 311 (5th Cir. 1986); and he may not prevail on such claim
unless he demonstrates prejudice. McDonald v. Steward, 132 F.3d
225, 230-31 (5th Cir. 1998).
Lewis’ claim is meritless because he has not established that
Defendants deliberately denied him use of the public library. Had
he accepted the offer of trustee status, he could have used the
public library’s legal materials.
Lewis challenges the summary judgment against his claim his
due process rights were denied when he was placed several times in
“isolation” without being afforded a hearing. To bring a
procedural due process claim under § 1983, Lewis must: identify a
protected liberty interest; and then prove governmental action
resulted in a deprivation of that interest. San Jacinto Sav. &
Loan v. Kacal, 928 F.2d 697, 700 (5th Cir. 1991). Administrative
segregation does not constitute a deprivation of a constitutionally
cognizable liberty interest. Pichardo v. Kinker, 73 F.3d 612, 613
(5th Cir. 1996).
Lewis uses the term “isolation” loosely, implying he was
placed in solitary confinement. The district court, however, ruled
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that Lewis had been placed in administrative segregation, not
isolation, and that ruling is supported by the record. The cell
where he was placed was several feet from the main population,
allowing Lewis to converse with other inmates, and the cell was
identical to the others in the jail with the exception that it did
not have a telephone. Lewis does not challenge that ruling on
appeal. Lewis has not shown error.
Lewis contests the exclusion at trial of the expert testimony
of Dr. Sechrest. A ruling on the admissibility of expert testimony
is reviewed for an abuse of discretion. United States v.
Alexander, 816 F.2d 164, 167 (5th Cir. 1987), cert. denied, 493
U.S. 1069 (1990); see FED. R. EVID. 702. Lewis has not identified
any facts to which Dr. Sechrest would have testified that would not
have been within the common knowledge of the jury. His contention
is devoid of an explanation of how Dr. Sechrest’s proposed
testimony concerning American Correctional Association standards
would have been relevant to the Leesville City Jail and this
litigation. He has, therefore, not demonstrated an abuse of
discretion.
Finally, Lewis challenges the denial of his motion for
judgment as a matter of law on the issue of unconstitutional
conditions of confinement. The denial of a motion for judgment as
a matter of law is reviewed de novo. Logan v. Burgers Ozark
Country Cured Hams Inc., 263 F.3d 447, 455 (5th Cir. 2001). Such
judgment is appropriate only if the evidence, viewed in the
nonmoving party’s favor, points but one way and is not susceptible
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to reasonable inferences which may support the nonmovant’s
position. Id.
Lewis contends that the totality of the evidence showed he was
in isolation anywhere from 180 to 310 days of his confinement. His
deposition testimony, which was offered at trial because Lewis was
unavailable to testify, supports a finding that his time spent in
isolation was not continuous. The evidence was open to reasonable
inferences that supported Defendants’ position.
AFFIRMED
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