Mark Winger v. Guy Pierce , 521 F. App'x 569 ( 2013 )

NONPRECEDENTIAL DISPOSITION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 April 5, 2013*
Decided April 8, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11-3480
MARK A. WINGER, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 06-1226
GUY D. PIERCE, et al., Joe Billy McDade,
Defendants-Appellees. Judge.
ORDER
For a year Mark Winger was prevented from exercising outside his prison cell,
except on one occasion for an hour. This confinement, Winger claims, violated the Eighth
Amendment. Previously we reinstated Winger’s suit under 42 U.S.C. § 1983, which the
district court had dismissed at screening on the mistaken view that the complaint did not
state a claim. See Winger v. Pierce, 325 F. App’x 435 (7th Cir. 2009). On remand the court
granted summary judgment for the defendants, all prison officials. Winger again appeals.
*
This appeal is successive to case no. 07-3021 and is being decided by the same panel
under Operating Procedure 6(b). After examining the briefs and the record, we have
concluded that oral argument is unnecessary. See FED. R. APP. P. 34(a)(2)(C).
No. 11-3480 Page 2
Winger was sentenced to life imprisonment in 2002 for the murders of his wife and a
driver for an airport shuttle service. Winger had lured the driver to their home and then
told police he shot the man in self defense after he broke into the house and killed Winger’s
wife with a hammer. At the time Winger also was having an affair, and the woman became
the prosecution’s star witness after Winger confessed the murders to her. See Linda Rockey,
Domestic Disturbance, CHI. TRIB., Jan. 20, 2002, (Magazine) at 10. In 2005 while he was at
Pontiac Correctional Center, Winger solicited another inmate to arrange the woman’s
kidnapping and murder. Winger envisioned that his murder convictions would be
overturned if the woman was forced to make a video recanting her trial testimony and then
died in an apparent suicide. Prison staff learned about this plot in June and moved Winger
to administrative segregation while they investigated. A month later, on July 21, an
adjustment committee found him guilty of several infractions arising from his plan. The
committee recommended, in addition to other sanctions, that Winger serve a year in
disciplinary segregation without access to the recreation yard. In early August the warden
approved that recommendation.
Winger promptly filed a grievance, which for prisoners in Illinois is the correct
procedure to challenge a disciplinary decision. See ILL. ADMIN. CODE tit. 20, § 504.810(a).
That lengthy grievance, dated August 16, 2005, raises a number of substantive and
procedural objections to the finding of guilt. But Winger’s objection to the recreation
restriction concerned only its length; he insisted that Illinois law, see id. § 504.670, limits
restrictions on recreation privileges to 90 days. He did not assert that the cells in
disciplinary segregation are too small for physical exercise. Neither did he assert that his
confinement without yard privileges was causing physical or emotional harm. In October
the warden accepted the grievance officer’s recommendation to deny Winger’s submission.
He then appealed to the Administrative Review Board. In his written submission
dated October 14, Winger reasserted his substantive and procedural challenges to the
finding of guilt, but this time he made no specific mention about the recreation restriction
and he did not assert that his confinement was making exercise impossible or causing
physical or psychological harm. On December 14 the ARB’s chairperson, Melody Ford,
interviewed Winger by video link and allowed him to elaborate on his written submission.
Her written summary of that interview (no recording was made) recounts that Winger
wanted compensation because his banishment from the recreation yard had exceeded
90 days. According to the chairperson, Winger also had asserted that the Department of
Corrections was “showing deliberate indifference by denying yard.” Ford recommended to
the Department’s director that Winger’s appeal be rejected, and the Director, acting
through two subordinates, concurred. The Director’s ruling was issued on January 9, 2006.
No. 11-3480 Page 3
That’s the extent of the defendants’ involvement in the events underlying Winger’s
lawsuit, which names the Director (who is now deceased), his two subordinates, the ARB
chairperson, the Pontiac warden who approved Winger’s punishment and that warden’s
successor, the facility’s grievance officer, and the members of the adjustment committee
involved in disciplining Winger. Winger did not submit another grievance until June 2006;
in that submission (which the defendants deny receiving) he did not ask for any relief and
explained that his use of the recreation yard was about to be restored and thus the point of
the grievance was “to document” the denial of “yard activity” except for an hour he was
allowed in late April 2006.
That opportunity came about through Winger’s communications with his
counselor and a prison psychiatrist, neither of whom is a defendant or provided evidence
in this litigation. A letter from Winger to his counselor dated April 15, 2006, recounts that
twice, in January and March, he had discussed the denial of “outside yard” with the
psychiatrist, who reported back that the “house lieutenants . . . apparently could not”
authorize yard time. Winger complained in this letter about physical illness, depression,
and panic attacks, which he implied could be traced to his exclusion from the recreation
yard, though not specifically to a lack of physical exercise. Two weeks later, on April 30,
Winger was allowed to spend an hour in the recreation yard, and afterward he wrote
another letter to the counselor thanking him for interceding. After that Winger continued to
meet with the psychiatrist, who, Winger admits, told him it was likely that his anxiety was
partly due to a charge of solicitation to commit murder, which by then state prosecutors
had filed. Winger first appeared in state court on that charge in May 2006, and he was
convicted and sentenced to another 35 years in prison in 2007. See People v. Winger,
No. 4-09-0523, 2011 WL 10468205, at *3 (Ill. App. Ct. Jan. 26, 2011).
Winger was transferred to another prison at some point in June 2006, and soon after
this move his recreation privileges were restored. He then filed this lawsuit, alleging that
he suffered panic attacks, depression, and other physical and psychological symptoms
because of the restriction on outdoor recreation. We understood Winger to claim that the
defendants had prevented him from exercising during his year in segregation, leading to
these impairments. This was enough for his complaint to survive screening, see 28 U.S.C.
§ 1915A, but we also recognized that Winger might face any number of hurdles to
prevailing on the merits. We noted, for example, that Winger may have had adequate
opportunities for indoor exercise or, alternatively, his punishment might have been
justified by legitimate penological interests. See Winger, 325 F. App’x at 436.
After our remand the defendants deposed Winger, and both sides moved for
summary judgment. At his deposition Winger testified that while in segregation he was
No. 11-3480 Page 4
confined to cells measuring about 6 feet by 12 feet in which the area available for exercise
was about 2 feet by 10 feet. He had attempted jumping jacks and running in place in this
space, he said, but found it very difficult without banging his knees or elbows on either the
bunk or the cell walls. He also testified that exercise was difficult due to the lack of air
circulation and stifling heat in both the summer and winter. Winger further claimed that
the filthy condition of his cell and poor air quality, which he attributed to human waste and
the pepper spray used on unruly inmates, hindered his exercises. He testified that he had
also attempted sit-ups and other exercises on his bed but that this left the bed soaked in
sweat. He noted, too, that the floor was too narrow for push-ups and was contaminated by
feces, urine, mouse and cockroach droppings, and cockroaches.
Despite this testimony, which the defendants did not contest (and cited extensively
in their statement of undisputed facts), the district court concluded that a jury could not
reasonably find that Winger was unable to exercise adequately in his cell. And if that
conclusion was incorrect, the court added, the defendants nonetheless were entitled to
summary judgment because Winger lacked evidence that they knew of any harm to him.
Moreover, the court said, Winger did not present evidence that his alleged physical injuries
(which the court characterized as “de minimis”) and mental-health issues were caused by
the denial of yard privileges.
On appeal Winger challenges the grant of summary judgment for the defendants
and also contends that the district court should have recruited counsel to assist him. We
cannot conclude that the court abused its discretion by declining to seek a lawyer. Winger
had asserted that counsel was essential because, he said, the case is complex and his panic
attacks would hinder his ability to present the matter to a jury. He also points out here, as
he did in the district court, that an attorney could have assisted in locating an expert to
establish a link between the deprivation of yard time and his panic attacks. As the district
court noted, however, Winger (who worked as a nuclear engineer before his incarceration)
had capably advocated for himself throughout the proceedings, even winning a reversal of
the dismissal of his suit. And although Winger may have encountered difficulty securing
an expert, an inmate may rely on his treating physicians for medical evidence. See Gil v.
Reed, 381 F.3d 649, 660 (7th Cir. 2004). In light of the high quality of Winger’s filings and the
straightforward nature of his Eighth Amendment claim, the district court reasonably
denied his motion for appointment of counsel. See Romanelli v. Suliene, 615 F.3d 847, 852–53
(7th Cir. 2010).
On the merits the district court’s analysis raises concerns. For one, the court erred in
suggesting that Winger could not prevail on his Eighth Amendment claim because, the
court thought, his physical injuries were trivial. We have repeatedly rejected the notion that
No. 11-3480 Page 5
“de minimis” physical harm is not actionable in a prisoner civil-rights suit. See Thomas v.
Illinois, 697 F.3d 612, 614 (7th Cir. 2012); Washington v. Hively, 695 F.3d 641, 642–43 (7th Cir.
2012); Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012). We also are skeptical of the court’s
conclusion that a jury could not find that Winger lacked the ability to exercise in his cell.
Although a jury might reasonably conclude that Winger was able to exercise adequately on
his bed or in the narrow space beside it, his deposition testimony that he couldn’t run in
place or do jumping jacks for more than a few minutes before banging his knees and
shoulders on the walls is enough to raise a triable issue of fact.
Still, we agree with the district court that none of these defendants (including the
Director’s subordinates who were dismissed on the basis of the statute of limitations) could
be liable for the claimed Eighth Amendment violation. Early on Winger protested to some
of the defendants that his loss of yard privileges would exceed the duration allowed under
state law, but § 1983 is not a means of enforcing state law or recovering for its violation.
See Waubanascum v. Shawano County, 416 F.3d 658, 666 (7th Cir. 2005); Higgin v. Johnson,
346 F.3d 788, 793 (7th Cir. 2003). Winger did not file any grievance specifically complaining
that his cell was too small to accommodate exercise, nor did he complain in a grievance
about panic attacks or other consequences of a lack of exercise. Indeed, as far as this record
shows, the only people Winger sought help from were his counselor and the prison
psychiatrist, who then arranged for him to spend an hour in the prison yard. And there is
no evidence that the counselor and psychiatrist intervened with the named defendants to
win that brief reprieve.
Winger averred at his deposition that he told Melody Ford, the ARB chairperson,
about his physical and psychological symptoms during her video interview in December
2005. But that interview was conducted for the purpose of adjudicating Winger’s wide-
ranging grievance challenging the disciplinary proceeding on a number of substantive and
procedural grounds. His grievance protested the yard restriction only because he thought
that state law limited its duration to 90 days, and at his deposition Winger did not assert
that he told Ford that the yard restriction was causing his health issues. In fact, during that
deposition, Winger conceded that no doctor ever had attributed his ills to the denial of yard
time. See Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir. 2001) (noting that inmate was not
competent to testify on relation between exercise and dental problems); Gruenberg v.
Schneiter, 474 F. App’x 459, 463 (7th Cir. 2012) (affirming grant of summary judgment in
favor of defendants where inmate presented no admissible evidence linking muscle pain
and depression to exercise deprivation).
The scant information Winger says he disclosed to Ford is too little for a jury to find
that she knew that the lengthy yard restriction was causing harm or even impeding his
ability to exercise. And concerning the other defendants, Winger produced no evidence
No. 11-3480 Page 6
that they knew about any of the health issues he attributes to the yard restriction. Nor does
he point to evidence that the defendants knew that he lacked room in his cell to exercise
adequately (a problem Winger attributes to his “particular build”). Although Winger
insists that the health risks of his confinement were obvious and cites precedent from other
circuits for the proposition that a prolonged deprivation of out-of-cell exercise is per se
unconstitutional, we have held only that denying opportunities for exercise may violate the
Eighth Amendment “in certain limited circumstances where movement is denied and
muscles are allowed to atrophy and the health of the individual is threatened.” Thomas v.
Ramos, 130 F.3d 754, 763 (7th Cir. 1997) (citation, quotation marks, and alteration omitted).
We have noted that in-cell exercise may serve as an alternative to out-of-cell exercise,
see Pearson, 237 F.3d at 890 (Ripple, J., concurring); Ramos, 130 F.3d at 763, and required
inmates claiming deliberate indifference to show that prison officials knew that the
inmates’ health was threatened, see Pearson, 237 F.3d at 887 (reversing punitive-damages
award where trial record did not support finding that prison superintendent was aware of
risk to plaintiff’s well-being from year-long denial of yard privileges); cf. Delaney v. DeTella,
256 F.3d 679, 686 (7th Cir. 2001) (affirming denial of summary judgment for defendants
where plaintiff “repeatedly complained to each of the named defendants” that he lacked
meaningful opportunity to exercise).
Accordingly, since intent is essential for liability under the Eighth Amendment,
see Farmer v. Brennan, 511 U.S. 825, 837 (1994); Vance v. Rumsfeld, 701 F.3d 193, 204 (7th Cir.
2012) (en banc), these defendants were entitled to summary judgment. Whether other
employees at Pontiac might have been aware of, or could have intervened to prevent, the
alleged deprivation of exercise is not a question presented by this appeal. And because
Winger did not develop evidence tying these defendants to the harms he allegedly
suffered, neither is it necessary to explore whether his evidence was enough for a jury to
find that those harms resulted from a lack of out-of-cell exercise.
AFFIRMED.