IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 28, 2008
No. 06-40426 Charles R. Fulbruge III
Clerk
ROBERT Z. HERNANDEZ, JR.
Plaintiff - Appellant
v.
ARTHUR H. VELASQUEZ; STEVEN R. SWIFT; LAURENCE P. CHING;
AGRELLO VILLAREAL; E. FRANCO; H. BARRERA; M.K. MCCLEARY;
ALBERT DELEON; WILLIAM J. DUGGER; MICHAEL P. GEERDE;
RONDA L. CAMBY; JEFFREY E. NEWMAN; DONALD R. WILSON
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:
Robert Z. Hernandez, Texas prisoner # 837364, brought this § 1983 action
against Defendants, alleging violations of his Eighth Amendment and due
process rights. The district court granted summary judgment to all Defendants,
and Hernandez appeals. We affirm.
BACKGROUND
In March 2002, Texas Department of Criminal Justice (“TDCJ”) officials
received information that two rival Hispanic gangs, the Texas Syndicate (“TS”)
and the Raza Unida (“RU”) were planning a gang war. Security Threat Group
No. 06-40426
(“STG”) officers in each prison unit were ordered to compile lists of all known,
suspected, and affiliated TS and RU members. In late March 2002, RU members
assaulted and killed a TS member at the Polunsky Unit, and lockdowns were
ordered for all known or suspected TS and RU members and affiliates. These
lockdowns were not punitive in nature, but were for the safety of the suspected
gang members and others in the prison system.1
At that time, Robert Hernandez was incarcerated at the Darrington Unit,
serving a life sentence for capital murder. Prior to his lockdown he was
classified as a minimum custody, State Approved Trusty III inmate living in the
general prison population. In April 2002, Hernandez was identified by a
Darrington STG officer as a suspected TS member and was placed in lockdown
status. This custodial assignment was based on a “screen” in Hernandez’s file
indicating he had been a suspected TS member since June of 2001. The STG
also had received a handwritten communication from Hernandez dated April 3,
2002, in which Hernandez admitted he was a TS “helper” in the past, though he
claimed he had never become a full-fledged “member” and had since withdrawn
from the TS completely.
Hernandez claims that, beginning in July 2002, he was denied all outdoor
and out-of-cell exercise privileges. He remained in lockdown status while prison
officials investigated suspected gang members and worked to defuse tensions
between the rival gangs. In November 2002, a search of Hernandez’s regular cell
turned up evidence suggesting a possible TS association. Prison officials found
a letter mentioning a TS member, a note from the TS member, and addresses of
1
The STG officer explained in his affidavit, “It was believed that if an inmate was even
suspected of associating with TS or RU, that the rival gang would assault them.”
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confirmed TS members. According to the STG officer, this was not enough to
confirm Hernandez as a TS member, and as Hernandez was already classified
as a suspected TS member, nothing was done with the new information.
Hernandez remained in lockdown until June 2003, when he met with the STG
officer to ask that questionable information be removed from his file. At that
time the STG officer determined that the initial “screen” linking Hernandez to
the TS actually applied to another inmate surnamed Hernandez. Robert
Hernandez was removed from lockdown, and his record was cleared of the
suspected TS status.
Hernandez alleges that during lockdown he was confined to a cell
measuring 5' x 9', which he usually shared with another inmate. He was allowed
to leave his cell only for showers, medical appointments, and family visits.
Defendants presented evidence at summary judgment that prisoners on
lockdown are allowed indoor recreation in the “dayroom,” but the evidence does
not show that Hernandez himself was ever allowed this opportunity. Prison
officials did provide Hernandez with information on how to perform in-cell
exercises. Nonetheless, Hernandez claims that due to his confinement his
“muscles have allowed to atrophy — stiffening up and he has lost his range of
movement and flexibility.” Hernandez also complains he suffered from
depression.
During his time on lockdown status, Hernandez filed administrative
grievances, arguing that he was not a TS member and asking to be returned to
the general prison population. TDCJ officials responded to these grievances,
advising that Hernandez was properly on lockdown for safety and security
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No. 06-40426
reasons.2 Nevertheless, Hernandez contends he was provided with no hearing
or review, either prior to or during lockdown, in violation of his due process
rights.
Hernandez filed this lawsuit on June 13, 2003,3 alleging he was placed on
lockdown status in violation of his due process rights, and that the denial of
outdoor and out-of-cell exercise constituted cruel and unusual punishment in
violation of the Eighth Amendment. Defendants filed a motion for summary
judgment, which the district court granted as to the Eighth Amendment claims.
The district court denied the motion for summary judgment on the due process
claims, noting that Defendants had failed to include this issue in their motion
for summary judgment. With the permission of the court,4 Defendants filed a
second motion for summary judgment on the due process claims. The district
court granted this motion, adopting the report of the magistrate judge. This
appeal followed.
2
For example, in late 2002 defendant E. Franco responded to a letter from Hernandez,
stating, in part, “You will be released when the lock-down is lifted should you not be validated
as a TS member. You are in lockdown status to protect your safety and the safety of others.
. . . I have reviewed your file and found enough evidence to support your suspected status.”
Another grievance review from May 2002 bears the handwritten note, “Lock up due to
Hispanic race.” This is not, as the district court seemed to infer, an explanation of why prison
officials placed Hernandez on lockdown. Rather it is a summary of Hernandez’s attached
grievance, alleging that he had been placed on lockdown solely because he is Hispanic.
3
At the time Hernandez filed his complaint, he was still on lockdown status.
4
Defendants explained to the district court that they initially failed to brief the due
process claim because they believed the magistrate judge had limited Hernandez’s claim to
Eighth Amendment issues.
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STANDARD OF REVIEW
This court reviews the district court’s grant of summary judgment de novo.
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). Summary
judgment is appropriate if the submissions show that “there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter
of law.” FED R. CIV. P. 56(c). When deciding whether a fact issue exists, we
review the evidence and the inferences drawn from it in the light most favorable
to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co.,
336 F.3d 410, 412 (5th Cir. 2003). Even if this court disagrees with the reasons
given by the district court, it may affirm a grant of summary judgment on any
grounds supported by the record and presented to the court below. Berquist,
500 F.3d at 349; Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
DISCUSSION
I. Eighth Amendment
Hernandez claims the denial of outdoor and out-of-cell exercise for thirteen
months constituted cruel and unusual punishment under the Eighth Amend-
ment to the Constitution.5 We read his complaint primarily as a challenge to
the conditions of his confinement, and address it first under that standard. To
maintain this action under the Eighth Amendment, Hernandez must meet two
requirements. First, he must show that his confinement resulted in a
5
While this circuit has noted in the past that “deprivation of exercise per se does not
violate the cruel and unusual punishment clause,” Miller v. Carson, 563 F.2d 741, 751 n.12
(5th Cir. 1977); see also Wilkerson v. Maggio, 703 F.2d 909, 912 n.5 (5th Cir. 1983), it has also
noted that denial of exercise may constitute an “impairment of health” actionable under the
Eighth Amendment. See Miller, 563 F.2d at 751 n.12.
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deprivation that was “objectively, sufficiently serious.” Farmer v. Brennan, 511
U.S. 825, 834 (1994) (internal quotation and citation omitted). It is well settled
that “the Constitution does not mandate comfortable prisons,” and that prison
conditions may be “restrictive and even harsh” without running afoul of the
Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981); see also
id. at 347 (noting that such conditions are “part of the penalty that criminal
offenders pay for their offenses against society”). Nonetheless, conditions may
not be “grossly disproportionate to the severity of the crime warranting
imprisonment.” Id. The Supreme Court has defined a “sufficiently serious”
deprivation under the Eighth Amendment as the denial of “the minimal civilized
measure of life’s necessities.” Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S.
at 347).
Assuming Hernandez can show a sufficiently serious deprivation, he also
must show that prison officials acted with “deliberate indifference” to his health
or safety. Id. This follows from the principle that “only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.” Id.; see also id. at
837 (“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it
outlaws cruel and unusual ‘punishments.’”). A prison official acts with
deliberate indifference “only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to
abate it.” Id. at 847. This knowledge requirement is subjective: The official
“must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 837.
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We conclude that Hernandez cannot show deliberate indifference as
required by Farmer because there is no record evidence he was ever placed at
“substantial risk of serious harm.” At summary judgment there was evidence
on both sides as to the nature of Hernandez’s discomfort. Defendants presented
expert testimony that Hernandez’s records revealed no complaint of muscle
disorder. Defendants’ exhibits also included Hernandez’s grievance forms and
medical requests, along with the prison officials’ responses, which reference the
same symptoms Hernandez recites in his complaint. For his part, Hernandez
presented no evidence at summary judgment, though the allegations in his
verified complaint may be considered competent evidence insofar as they comply
with the requirements of Federal Rule of Civil Procedure 56(e). King v. Dogan,
31 F.3d 344, 346 (5th Cir. 1994). Assuming the evidence creates a fact issue as
to whether Hernandez suffered from muscle atrophy, stiffness, loss of range of
motion, and depression, there is nonetheless no indication these conditions posed
a substantial risk of serious harm. The district court properly concluded there
was no genuine issue as to whether Hernandez suffered a “serious illness or
injury” sufficient to constitute an Eighth Amendment violation. See Estelle v.
Gamble, 429 U.S. 97, 105 (1976).
It is not entirely clear from Hernandez’s complaint that he is also alleging
an impairment of health claim.6 But he does allege medical symptoms resulting
from his lockdown confinement, and as he is proceeding pro se, we construe his
pleadings liberally. Id. at 106. If his complaint is read as alleging an impair-
ment of health, Hernandez still must make the two-prong showing required by
6
Indeed, Hernandez acknowledges in his complaint that he was receiving medical
treatment for the symptoms allegedly resulting from his lack of exercise.
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Farmer. In the specific context of a health impairment claim, the facts of a case
must “clearly evince” the prisoner’s serious medical need and the prison officials’
deliberate indifference to it. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985) (“The legal conclusion of ‘deliberate indifference,’ therefore, must rest on
facts clearly evincing ‘wanton’ actions on the part of the defendants.”); see also
Estelle, 429 U.S. at 106. Merely negligent diagnosis or treatment of a medical
condition does not state a claim under the Eighth Amendment. Estelle, 429 U.S.
at 106. Rather, there must be “deliberate indifference, which results in
substantial harm.” Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Hernandez has not shown that prison officials failed reasonably to address
his medical needs. The Defendants’ summary judgment evidence shows that
prison officials systematically responded to Hernandez’s complaints with
treatment. Hernandez initially presented no documentary evidence, but after
the court granted the Defendants summary judgment on the Eighth Amendment
claims, Hernandez filed a motion to reconsider. Attached to this motion were
several sick call requests Hernandez submitted during lockdown complaining of
muscle soreness, stiffness, and loss of range of motion.7 These sick call requests
also bear notations from medical staff showing that they responded to
Hernandez timely. These forms and other evidence in the record document that
medical personnel responded to each of Hernandez’s requests, treating his back
pain with heat packs, conducting an x-ray, advising Hernandez to take naproxen
and ibuprofen for soreness, and recommending exercises for soreness and
7
Though it appears the district court never ruled on the motion to reconsider, the
unexcused failure to present available evidence at the time of summary judgment is a valid
reason for denying a motion for rehearing. ICEE Distribs., Inc. v. J&J Snack Foods Corp.,
445 F.3d 841, 847 (5th Cir. 2006).
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No. 06-40426
stiffness. Viewing this evidence in the light most favorable to Hernandez, it does
not show that Defendants wantonly disregarded his medical needs. Rather, it
shows that Hernandez was provided with medical care as he requested it. For
this reason as well, he cannot show “deliberate indifference,” and the district
court’s judgment on his Eighth Amendment claim is affirmed.
II. Due Process
Hernandez also claims his lockdown without a hearing violated his rights
to due process. To maintain this due process challenge, Hernandez must
establish that his transfer to lockdown deprived him of a liberty interest
protected by the Fourteenth Amendment. Meachum v. Fano, 427 U.S. 215, 223
(1976). But generally speaking, a prisoner has no liberty interest in his
custodial classification.8 This court has repeatedly affirmed that “[p]rison
officials should be accorded the widest possible deference” in classifying
prisoners’ custodial status as necessary “to maintain security and preserve
internal order.” McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990);
Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2005). And in the specific
context of administrative lockdown, we have clearly held that “absent
extraordinary circumstances, administrative segregation as such, being an
incident to the ordinary life as a prisoner, will never be a ground for a
constitutional claim.” E.g., Pichardo v. Kinker, 73 F.3d 612, 612-13 (5th Cir.
8
Wilkerson v. Stalder, 329 F.3d 431, 435-36 (5th Cir. 2003); Moody v. Baker, 857 F.2d
256, 257-58 (5th Cir. 1988); see also Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“[T]he
Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse
conditions of confinement.”).
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1996) (affirming dismissal of claim that lockdown for suspected gang affiliation
violated due process).9
Only when a prisoner demonstrates “extraordinary circumstances” may
he maintain a due process challenge to a change in his custodial classification.
Id. In other words, segregated confinement is not grounds for a due process
claim unless it “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995).
Cases where segregated confinement is sufficiently “atypical” to implicate
a due process liberty interest involve circumstances much harsher than those
presented here. In Wilkerson v. Stalder, this court held that due process might
have been violated where the plaintiffs had been kept on lockdown status for 30
years. 329 F.3d at 436 (remanding for determination whether such confinement
was “atypical” under Sandin). In another case, the Supreme Court held that
transfer to the Ohio “Supermax” facility implicated a liberty interest, in part
because conditions there were “more restrictive than any other form of
incarceration in Ohio.” Wilkinson v. Austin, 545 U.S. 209, 214 (2005). The
Wilkinson Court noted that at the Supermax facility, “almost all human contact
is prohibited.” Id. at 223. Ohio Supermax prisoners are kept in single cells with
solid metal doors that prevent communication from one cell to another; prisoners
take all their meals alone in their cells rather than in a common area; and
“opportunities for visitation are rare” and are conducted through glass walls. Id.
9
See also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (placement in administrative
segregation based on allegedly erroneous gang-member status was not a “deprivation of a
constitutionally cognizable liberty interest”); Harper v. Showers, 174 F.3d 716 (5th Cir. 1999)
(placement of prisoner on lockdown under 24-hour observation did not implicate due process).
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No. 06-40426
at 214, 223-24. Ohio Supermax inmates spend 23 hours a day alone in their
cells, where a light remains on at all times. Id. at 224. The Supreme Court
further noted that confinement at the Supermax facility was indefinite, and
otherwise eligible inmates were disqualified for parole consideration. Id. These
conditions and others were sufficiently extraordinary that the Supreme Court
concluded prisoners had a liberty interest in avoiding assignment to the
Supermax facility. Id.
The thirty-year confinement in Wilkerson and the extreme conditions in
Wilkinson are distinguishable from the present facts. Here, Hernandez has not
shown that his lockdown posed an atypical or significant hardship. The
conditions he complains of — confinement to a shared cell for twelve months
with permission to leave only for showers, medical appointments, and family
visits — are comparable to, if not less severe than those found unactionable in
other cases.10 As the Seventh Circuit noted in a similar case, non-disciplinary
lockdown is by no means an atypical prison experience:
Every state must have somewhere in its prison system single-person
cells in which prisoners are sometimes confined not because they
have misbehaved but simply because the prison has no other space,
wishes to protect some prisoners from others, wishes to keep
prisoners isolated from one another in order to minimize the risk of
10
See Harper, 174 F.3d at 717 (no due process claim where inmate claimed he was
placed in lockdown “in cells next to psychiatric patients who scream, beat on metal toilets,
short out the power, flood the cells, throw feces, and light fires;” was often “moved into filthy,
feces-smeared cells;” and was deprived of “cleanliness, sleep, and peace of mind.”); Martin v.
Scott, 156 F.3d 578, 579 n.1, 580 (5th Cir. 1998) (segregated prisoner’s complaints that his
recreation and visitation time were restricted, that he was denied certain personal items, and
that he was handcuffed every time he left his cell were “far from extraordinary”); Griffin v.
Vaughn, 112 F.3d 703 (3d Cir. 1997) (prisoner’s 15-month (and at the time, potentially
indefinite) lockdown for suspected rape of a prison guard was not an atypical or significant
hardship).
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No. 06-40426
riots or other disturbances, wishes to prevent the spread of disease,
and so forth.
Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997) (Posner, C.J.). Temporary
lockdown designed to prevent gang-related violence is to be expected as an
ordinary incident of prison life. Viewing the facts in the light most favorable to
Hernandez, his assignment to lockdown was well “within the range of
confinement to be normally expected” for a prisoner serving a life sentence for
capital murder. Sandin, 515 U.S. at 487. Accordingly, he has not alleged a
deprivation of a cognizable liberty interest. The district court’s grant of
summary judgment to Defendants on this claim was proper.
CONCLUSION
For the aforementioned reasons, the judgment of the district court is
AFFIRMED.
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