United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
original complaint, plaintiff Cornell Smith alleged that
correctional officers and others employed by the Wisconsin
Department of Corrections at Waupun Correctional Institution
violated his rights under the Fourteenth and Eight
Amendments, by denying him recreational time, and the First
Amendment, by interfering with his attempts to utilize the
prison grievance process. Because Smith is incarcerated and
is seeking redress from a governmental employee, the Prison
Litigation Reform Act (“PLRA”) requires the court
to screen his complaint and dismiss any portion that is: (1)
frivolous or malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks money damages from a
defendant who is immune from such relief. 28 U.S.C. §
with that obligation, this court denied Smith leave to
proceed, finding that his original complaint failed to allege
a constitutional violation, but also provided him an
opportunity to file an amended complaint as to his Eighth
Amendment claim for denial of recreation and the court
directed Smith to specify in particular the length of time he
was denied access to recreation. (12/10/14 Order (dkt. #6).)
Now that the proposed amended complaint is properly before
this court, plaintiff will be denied leave to proceed, and
his complaint will be dismissed.
times relevant to his complaint, Smith has been an inmate at
the Waupan Correctional Institution (“Waupun”).
Ms. Erickson, Captain Greff, Deputy Warden Donald Strahota,
Lt. Sabish, Chief Warden Mr. Williams Pollard, Tonia Moon and
Anglia E. Kroll are (or were during at least parts of the
relevant period) employees with the Department of Corrections
employed at Waupun. Rick Raemisch is the former Secretary of
the Department of Corrections.
alleges that recreation time for prisoners at Waupan has been
reduced generally due to overcrowding. Under the rule
material to Smith’s complaint, inmates were no longer
afforded recreational time five days a week; rather, they
were allowed to attend recreational time Monday, Wednesday
and Friday one week, and then Tuesday and Thursday the next
week. (Am. Compl. (dkt. #15) ¶ 11.) For Smith, the
Friday recreation time from 2:30 p.m. to 3:45 p.m. conflicts
with his Islamic religious service, which is held from 2:00
p.m. to 3:00 p.m.
August 15, 2012, a correctional officer informed Smith that
his name had been removed from the recreational activity
exercise list. That same day, Smith submitted a request slip
to Erickson, seeking information as to why his name was
removed. When Erickson did not respond, Smith submitted an
inmate complaint. This prompted Kroll to ask Smith to forward
his complaint to defendant Greff and ask him for a response.
September 6, 2012, Greff did so, stating, “You had [an
unexcused absence] and your name was
removed.” (Am. Compl. (dkt. #15) ¶ 16.) Greff
also explained that “it was mandatory according to
W.C.I. policy to attend to his chief/primary Islamic
religious service instead of his scheduled Leisure time
structure rec exercise activity.” (Id.) Smith
alleges that he appealed Greff’s decision, but that
defendant Strahota affirmed the decision.
on these allegations, Smith alleges that defendants Erickson,
Greff and Strahota deprived him “for four(4)
mo[n]ths” of his “only mean[s] to Leisure time
structure rec exercise activity.” (Id. at
¶ 18.) Smith appears to allege that he was denied
recreational time on Friday afternoons for an additional two
month period beginning on February 11, 2013, which was the
subject of a second grievance submitted to defendant Pollard.
This grievance, too, apparently resulted in no
court explained in its initial opinion and order, the Eighth
Amendment’s prohibition against cruel and unusual
punishment imposes upon prison officials the duty to provide
prisoners “humane conditions of confinement.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994). To
constitute cruel and unusual punishment, conditions of
confinement must be extreme. The Court of Appeals for the
Seventh Circuit has recognized that exercise is “a
necessary requirement for physical and mental well-being,
” and has held that depriving prisoners of out-of-cell
exercise opportunities may violate the Eighth Amendment.
Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir.
2001). However, “short-term denials of exercise”
do not violate the constitution. Thomas v. Ramos,
130 F.3d 754, 764 (7th Cir. 1997) (denial of outdoor exercise
for 70 days permissible); Harris v.
Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (denial of
out-of-cell exercise for 28 days permissible).
additional allegations in his amended complaint still do not
meet this Eighth Amendment threshold. To the contrary,
Smith’s new allegations merely confirm -- as the court
assumed in its opinion on his original complaint -- that he
was not denied all access to out-of-cell
time, but rather denied access to recreational activity on
Friday afternoons, because that activity conflicted with
Smith’s religious services. Smith’s disagreement
with the reasonableness of defendants’ decision to make
religious services paramount, or failing to find a way to
accommodate both, is certainly understandable, but his
allegations fail to establish a violation of his
constitutional rights under the Eighth Amendment.
amended complaint, Smith cites repeatedly to Wis. Admin Code
§ DOC 309.36(1), which provides in pertinent part:
The department shall provide as much leisure time activity as
possible for inmates, consistent with available resources and
scheduled programs and work. Leisure time activity is free
time outside the cell or room during which the inmate may be
involved in activities such as ...