United States District Court, S.D. Illinois
August 1, 2005.
ZAKII TAWWAB WAHIID, Plaintiff,
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
(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
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(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
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 the yard, and he has
not stated a viable constitutional claim against either.
IT IS THEREFORE ORDERED that Defendants ANDERSON and
TUCKER are DISMISSED from this action with prejudice.
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver
of Service of Summons) for Defendant DEMPSEY. The Clerk shall
forward those forms, USM-285 forms submitted by Plaintiff, and
sufficient copies of the complaint to the United States Marshal
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendant DEMPSEY in the manner specified by Rule 4(d)(2) of
the Federal Rules of Civil Procedure. Process in this case shall
consist of the complaint, applicable forms 1A and 1B, and this
Memorandum and Order. For purposes of computing the passage of
time under Rule 4(d)(2), the Court and all parties will compute
time as of the date it is mailed by the Marshal, as noted on the USM-285 form.
With respect to former employees of Illinois Department of
Corrections who no longer can be found at the work address
provided by Plaintiff, the Department of Corrections shall
furnish the Marshal with the Defendant's last-known address upon
issuance of a court order which states that the information shall
be used only for purposes of effectuating service (or for proof
of service, should a dispute arise) and any documentation of the
address shall be retained only by the Marshal. Address
information obtained from I.D.O.C. pursuant to this order shall
not be maintained in the court file, nor disclosed by the
The United States Marshal shall file returned waivers of
service as well as any requests for waivers of service that are
returned as undelivered as soon as they are received. If a waiver
of service is not returned by a defendant within THIRTY (30)
DAYS from the date of mailing the request for waiver, the United
States Marshal shall:
Request that the Clerk prepare a summons for that
defendant who has not yet returned a waiver of
service; the Clerk shall then prepare such summons as
Personally serve process and a copy of this Order
upon the defendant pursuant to Rule 4 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for the defendant, along with evidence of any
attempts to secure a waiver of service of process and
of the costs subsequently incurred in effecting
service on said defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the
personally served defendant in accordance with the
provisions of Federal Rule of Civil Procedure 4(d)(2)
unless the defendant shows good cause for such
Plaintiff is ORDERED to serve upon defendant or, if
appearance has been entered by counsel, upon that attorney, a
copy of every further pleading or other document submitted for consideration by this Court. He shall include with the original
paper to be filed with the Clerk of the Court a certificate
stating the date that a true and correct copy of any document was
mailed to defendant or his counsel. Any paper received by a
district judge or magistrate judge which has not been filed with
the Clerk or which fails to include a certificate of service will
be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate
responsive pleading to the complaint, and shall not waive filing
a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to
a United States Magistrate Judge for further pre-trial
Further, this entire matter is hereby REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk
and each opposing party informed of any change in his
whereabouts. This shall be done in writing and not later than
seven (7) days after a transfer or other change in address
IT IS SO ORDERED.