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WAHIID v. DEMPSEY

August 1, 2005.

ZAKII TAWWAB WAHIID, Plaintiff,
v.
SCOTT DEMPSEY, T. ANDERSON and NANCY S. TUCKER, Defendants.



The opinion of the court was delivered by: DAVID HERNDON, District Judge

MEMORANDUM AND ORDER

The Court previously granted Plaintiff's request for leave to proceed in forma pauperis and assessed an initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(2). In response to an order directing him to show cause why he was unable to pay that fee, Plaintiff filed another motion to proceed in forma pauperis (Doc. 9), which the Court construes as a request for a temporary waiver of Plaintiff's initial partial filing fee. See 28 U.S.C. § 1915(b)(4). The Court finds that Plaintiff currently has no assets, and he currently has no means, with which to pay that fee. Therefore, the instant motion is GRANTED. Plaintiff's initial partial filing fee is temporarily waived until such time as he has means to pay it.

Three other motions are currently pending in this action.

  MOTION TO APPOINT COUNSEL (DOC. 3)

  There is no absolute right to appointment of counsel in a civil case. Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975); Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971). When deciding whether to appoint counsel, the Court must first determine if a pro se litigant has made reasonable efforts to secure counsel before resorting to the courts. Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). Plaintiff makes no showing that he has attempted to retain counsel. Therefore, the Court finds that appointment of counsel is not warranted. Accordingly, Plaintiff's motion for appointment of counsel is DENIED.

  MOTION TO AMEND (DOC. 6)

  Federal Rule of Civil Procedure 15(a) dictates that leave to amend a pleading "shall be given whenever justice so requires," see Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir. 1995); and, indeed, the rule expressly grants a plaintiff one opportunity to amend the complaint as a matter of course before a responsive pleading is served. Camp v. Gregory, 67 F.3d 1286, 1289 (7th Cir. 1995). The Court notes that subsequent to filing this motion, Plaintiff filed his amended complaint (Doc. 10). Therefore, this motion is MOOT.

  MOTION ON THE DENIAL OF OUTSIDE EXERCISE (DOC. 7)

  This pleading is actually just a brief in support of his complaint; no specific relief is sought. Therefore, it is not a motion, and as such it is MOOT.

  AMENDED COMPLAINT (DOC. 10)

  This case is now before the Court for a preliminary review of the amended complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. — The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal. — On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint —
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are legally frivolous and thus subject to summary dismissal.

  Plaintiff alleges that on June 16, 2003, while in the Illinois River Correctional Center, he received a disciplinary ticket that resulted in three months of segregation and two months of yard denial, among other sanctions.*fn1 In July 2003, he was transferred to the Lawrence Correctional Center, where he was assigned to the segregation unit to complete his three-month term of segregation. For reasons not clear in the complaint, Plaintiff remained in segregation until November 22, 2003. The subject of this action, though, is not the disciplinary ticket nor the time in segregation. Rather, Plaintiff filed this action because, from June 28 through November 25, he alleges that he was not allowed any outdoor yard privilege. He alleges that he made a request to Dempsey in October 2003, and also filed a grievance at the end of that month as well as another in November.

 
In recent years we have not only acknowledged that a lack of exercise can rise to a constitutional violation, French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1986), but have concluded that "exercise is now regarded in many quarters as an indispensable component of preventive medicine." Anderson v. Romero, 72 F.3d 518, 528 (7th Cir. 1995). Given current norms, exercise is no longer considered an optional form of recreation, but is instead a necessary requirement for physical and mental well-being.
Although we have recognized the value of exercise and its medicinal effects, we have also consistently held that short-term denials of exercise may be inevitable in the prison context and are not so detrimental as to constitute a constitutional deprivation. Thomas v. Ramos, 130 F.3d 754, 764 (7th Cir. 1997) (70-day denial permissible); Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (28 day denial not deprivation); Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1089 (7th Cir. 1986) (limited recreational activities sufficient, where average prison stay was 10 days or less); Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir. 1986) (no deprivation where exercise was denied for 30 days, but then allowed one hour indoor exercise for next 6 months); but see Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) (viable constitutional claim where prisoner denied recreational opportunities for 7 weeks); Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (1989) (reversing summary judgment for prison officials where segregated prisoner denied exercise for 101 days).
Delaney v. DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001). Based on these standards, the Court is unable to dismiss Plaintiff's claim against Dempsey at this point in the litigation. See 28 U.S.C. § 1915A.

  However, it appears from the exhibits that by the time his grievances worked up through the system to Anderson and Tucker, Plaintiff's yard restriction had been restored. Therefore, neither Anderson or Tucker were personally involved in the decisions regarding Plaintiff's access to ...


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