McNeill v. Currie , 84 F. App'x 276 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES C. MCNEILL, 
Plaintiff-Appellant,
v.
GEORGE E. CURRIE; TONY C. JONES;
MICHAEL A. MUNNS; JAMES BOYD
BENNETT; VIRGINIA LANCASTER;
RICHARD T. JONES; CHARLES E. HILL;
MICHAEL ROACH; JAMES P. ORWIN;
MARVIN THOMAS; JAMES A. REID;
WILLIAM BROWN; DENNIS W.
VANBUREN; THOMAS D. AKER;
THURMAN HINES; DAVID A. CARROLL,  No. 03-6940
Sargeant; LAVERN MCRAE; RICHARD
CROMARTIE; WILLIAM W. WESLEY;
ERIC R. GRANDY; PAMELA C.
WOODALL; RENEE SMITH; MARGARET
COOPER; JAMES CHAPPELL; LEROY
HARRIS; KIMBERLY REID; ROY
PATTERSON; JERRI HARRIS; CHARISSA
DAWSON; CORRECTIONAL OFFICER
CLARKE; MICHAEL MCDONALD
MURPHY, M.D.; PHILIP HOPKINS,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-03-223-5-H)
Submitted: October 15, 2003
Decided: December 22, 2003
2 MCNEILL v. CURRIE
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
James C. McNeill, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James C. McNeill, a North Carolina inmate, appeals the district
court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint
under 28 U.S.C. § 1915(e)(2)(B) (2000). McNeill alleged a number of
constitutional violations by prison officials at Polk Youth Institution,
including violations of due process and the prohibition against cruel
and unusual punishment in connection with certain disciplinary hear-
ings, interference with legal mail, retaliation for filing grievances and
complaints, denial of medical care, and sexual harassment. We affirm
in part, vacate in part, and remand for further proceedings.
McNeill claims that he was denied certain due process protections
with respect to various prison disciplinary hearings. In order to show
the deprivation of a liberty interest protected by the Due Process
Clause, an inmate must show either: (1) the conditions exceed the
sentence imposed in such an unexpected manner as to give rise to pro-
tection by the Due Process Clause or (2) the confinement creates an
atypical or significant hardship in relation to the ordinary incidents of
MCNEILL v. CURRIE 3
prison life. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). A claim
having no arguable basis in law or fact may be dismissed as frivolous.
Neitzke v. Williams, 490 U.S. 319, 328 (1989). We review de novo
a dismissal under § 1915(e)(2) (2000). De’Lonta v. Angelone, 330
F.3d 630, 633 (4th Cir. 2003).
We conclude that McNeill was not entitled to due process protec-
tions with respect to his disciplinary hearings on December 22, 2000,
July 10, 2001, September 18, 2001, November 8, 2001, and Decem-
ber 12, 2001, because the disciplinary actions taken and McNeill’s
placement in administrative segregation did not create an atypical or
significant hardship in relation to the ordinary incidents of prison life.
See Beverati v. Smith, 120 F.3d 500, 503-04 (4th Cir. 1997). We
therefore affirm the portion of the district court’s order dismissing
McNeill’s due process claims with respect to these five proceedings.
However, with respect to the proceedings held on August 1, 2002, and
December 31, 2002, we vacate the district court’s dismissal of
McNeill’s due process claims because we conclude that these claims
have an arguable basis in law and fact. On remand, the district court
should compare the conditions in segregation to which McNeill is
exposed, including his loss of out-of-cell exercise, with the ordinary
incidents of prison life, to determine whether McNeill possessed a lib-
erty interest requiring due process protections during these two disci-
plinary hearings.
We also vacate the district court’s dismissal of McNeill’s depriva-
tion of exercise claim and remand for consideration of this claim. In
order to make out an Eighth Amendment claim relating to conditions
of confinement, a plaintiff must establish both (1) "a serious depriva-
tion of a basic human need" and (2) "deliberate indifference to prison
conditions on the part of prison officials." Strickler v. Waters, 989
F.2d 1375, 1379 (4th Cir. 1993). A plaintiff must also "produce evi-
dence of a serious or significant physical or emotional injury resulting
from the challenged conditions." Id. at 1381. We have held that it may
generally be considered that "complete deprivation of exercise for an
extended period of time violates Eighth Amendment prohibitions
against cruel and unusual punishment." Mitchell v. Rice, 954 F.2d
187, 191 (4th Cir. 1992).
McNeill’s allegation, which must be accepted as true at this stage
of the proceedings, is that he was deprived of out-of-cell exercise for
4 MCNEILL v. CURRIE
approximately seven months while housed in segregation. McNeill
also alleged that he needs exercise to rehabilitate his various injuries
and that the lack of exercise has caused him serious physical and
emotional distress. Whether such facts, if proven, amounted to an
Eighth Amendment violation should be considered in the first
instance by the district court.
Accordingly, we affirm the district court’s dismissal of McNeill’s
due process claims relating to his disciplinary hearings on December
22, 2000, July 10, 2001, September 18, 2001, November 8, 2001, and
December 12, 2001, and affirm the dismissal of those claims not
raised in McNeill’s informal brief. See 4th Cir. R. 34(b). However, we
vacate the district court’s dismissal of McNeill’s due process claims
relating to the disciplinary proceedings on August 1, 2002, and
December 31, 2002, vacate the dismissal of McNeill’s deprivation of
exercise claim, and remand to the district court for further proceed-
ings consistent with this opinion.*
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
*By this disposition, we indicate no view as to the ultimate merits of
McNeill’s claims.