Mark Winger v. Guy Pierce , 325 F. App'x 435 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 31, 2009*
Decided April 2, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07-3021
MARK A. WINGER, Appeal from the United
Plaintiff-Appellant, States District Court for the
Central District of Illinois.
v.
No. 06-1226
GUY D. PIERCE, et al., Harold A. Baker, Judge.
Defendants-Appellees.
Order
Mark Winger filed a complaint under 42 U.S.C. §1983, contending that officials at his
prison violated the Constitution by restricting his opportunity for outdoor exercise for
more than a year. A disciplinary infraction (soliciting a murder) led to the revocation of
a year’s good-time credits, a year in segregation, and a year’s loss of yard privileges.
According to the complaint Winger spent at least 9 consecutive months indoors. After
he complained of panic attacks, he was allowed a single hour of outdoor exercise. The
district court dismissed the complaint under 28 U.S.C. §1915A, citing Pearson v. Ramos,
237 F.3d 881 (7th Cir. 2001), for the proposition that a year’s denial of yard privileges
does not violate the Constitution’s eighth amendment.
Pearson reached its conclusion only after a trial, and the court thus was able to evalu-
ate the effects of the limit on yard privileges in the context of the prison’s justifications
for the restrictions. We observed along the way that an unjustified, lengthy deprivation
of opportunity for out-of-cell exercise “could reasonably be described as cruel and, by
reference to the current norms of American prisons, unusual.” 237 F.3d at 884. See also
* Defendants were not served with process in the district court and have elected not to participate in this
appeal, which is submitted for decision on appellant’s brief and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).
No. 07-3021 Page 2
Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir. 2001); Antonelli v. Sheahan, 81 F.3d 1422,
1432 (7th Cir. 1996). But Pearson’s misconduct justified the restrictions, we concluded.
Pearson repeatedly attacked guards, making it understandable that the prison wanted a
form of punishment that reduced his opportunity for similarly aggressive behavior:
“To confine in ‘solitary’ a prisoner who behaves like a wild beast whenever he is let out
of his cell is the least cruel measure that occurs to us for dealing with such a person.”
237 F.3d at 885.
Winger equates “lack of yard privileges” with “lack of exercise.” If that is so, then it
is difficult to see how even nine months’ deprivation could be deemed consistent with
the eighth amendment. Dismissal under §1915A was therefore inappropriate. Yet per-
haps the prison offered Winger an opportunity for adequate indoor exercise, or per-
haps there are good penological reasons for the sort of restrictions to which Winger
was subjected. See Turner v. Safley, 482 U.S. 78 (1987). Once the defendants answer the
complaint, and the parties have an opportunity to present evidence, these questions
may come into focus. We do not hold that Winger is entitled to prevail, only that his
complaint states the sort of claim that cannot be dismissed out of hand.
Because further proceedings are necessary, the district court may wish to reconsider
whether it would be appropriate to recruit counsel to assist Winger. See Pruitt v. Mote,
503 F.3d 647 (7th Cir. 2007) (en banc).
The judgment is vacated, and the case is remanded for further proceedings. In light
of this disposition, neither the suit nor the appeal counts as a “strike” under 28 U.S.C.
§1915(g).