                         NONPRECEDENTIAL DISPOSITION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 November 14, 2013*
                              Decided November 21, 2013

                                          Before

                            DIANE P. WOOD, Chief Judge

                            JOEL M. FLAUM, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge

No. 12-3275

GREGORY TURLEY,                                Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Southern District of Illinois.

       v.                                      No. 08-cv-0007-SCW

DANNY BEDINGER, et al.,                        Stephen C. Williams,
    Defendants-Appellees.                      Magistrate Judge.

                                        ORDER

        Gregory Turley, an inmate at the Menard Correctional Center, appeals from the
judgment entered after a jury verdict in his civil-rights suit. He principally contests the
district court’s pretrial dismissal of two claims (challenging the conditions in his cell
and overcrowding in the exercise yard) and the severance of another claim. Because the




      *
       After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. A PP. P. 34(a)(2)(C).
No. 12-3275                                                                            Page 2

allegations about the conditions in his cell state a claim, but the other rulings are correct,
we affirm in part, and vacate and remand in part.

        We begin by describing the allegations of the dismissed and severed claims,
which at this stage we take as true. See Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.
2000). First, Turley alleges that, in retaliation for complaints he made about
mistreatment by the defendant prison guards, those guards transferred him to the cell
block at Menard with the worst conditions. The defendants confined him to one of the
smallest cells, having only 11 square feet of open space and 38 square feet total, with a
cellmate for “at least 23 ½ hours on most days” and at least 17 straight days, with
exposure to secondhand smoke and without proper ventilation. The unventilated, tight
confinement caused him respiratory, gastrointestinal, joint, and anxiety problems. He
also alleges that, while in this unit, he was allowed to exercise only in an overcrowded
recreation yard. The yard was so congested that, with all the jostling of prisoners,
another inmate punched him, mistaking him for an attacker. Later, Turley was placed in
segregation after being found guilty of failing to reenter his cell after dinner while the
door was open. Turley had defended the charge by arguing that the door malfunctioned
and had not opened in the first place. He alleges that the hearing officer, Jeffrey
Broshears, knowingly disregarded Turley’s evidence of his innocence.

       Turley filed this complaint under 42 U.S.C. § 1983, alleging several Eighth
Amendment claims. Among them are his claim that his cell’s conditions were
unconstitutionally harmful and that the exercise yard was unconstitutionally small. He
also brought a claim against Danny Bedinger, a prison guard, for using excessive force
by choking Turley and shoving him into a wall, and against Broshears for denying
Turley a fair disciplinary hearing. Finally, he brought retaliation claims against other
defendants, but these are not subject to this appeal.

       After intervening proceedings (in which we reversed the dismissal of Turley’s
complaint and denial of pauper status based on an improper application of the “three-
strikes” rule, see Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010)), the district judge
screened the complaint under 28 U.S.C. § 1915A. The judge dismissed Turley’s cell-
conditions claim, ruling that Turley did not allege that his cell conditions either caused
his ailments or presented any apparent risk to his health or safety. The judge also
dismissed Turley’s claims about overcrowding in the exercise yard because Turley did
not allege that the yard’s size deprived him of life’s necessities or created a safety risk.
The judge concluded, however, that Turley stated a claim for Bedinger’s use of
excessive force and for retaliation by other guards. Finally, the judge ruled that Turley’s
No. 12-3275                                                                          Page 3

claim against Broshears for approving a faulty disciplinary report was not sufficiently
related to the claims against the other defendants, and the judge was thus “inclined to
sever” it. The judge advised Turley that he could avoid severance and a second filing
fee by voluntarily dismissing the claim. Turley declined, and a few weeks later, the
judge severed the claim into a separate action.

       The parties consented to having a magistrate judge preside over Turley’s
remaining claims. The magistrate judge granted either summary judgment or judgment
as a matter of law for the defendants on all but one of the surviving claims. On that
claim—against Bedinger for excessive force—a jury ruled in Turley’s favor. Turley
moved to amend the judgment because the jury awarded only nominal damages, but
the district court denied the motion.

         On appeal Turley first challenges the district court’s dismissal of his cell-
conditions claim. He disputes the court’s conclusion that he did not sufficiently allege
that his cell conditions caused his ailments by pointing to the following allegations: his
cell is smaller than 40 square feet, there is only 11 square feet of open floor space shared
between two inmates, he was confined to this tight space for nearly 24 hours daily up to
17 days straight without regular opportunity for exercise, it lacked adequate ventilation,
and he was exposed to secondhand smoke. All of these conditions, he alleged, produced
gastrointestinal, joint, breathing, and psychological problems.

       In a recent and similar case also involving Turley, we overturned the dismissal of
his complaint. Turley v. Rednour, 729 F.3d 645 (7th Cir. 2013). Like this complaint, the
complaint in Turley alleged Eighth Amendment violations by Menard officials for
confining Turley to a small cell for an extended period—a confinement that caused him
a similar set of maladies. In reversing, we observed that other district courts had
correctly determined that other complaints against Menard, alleging that officials had
confined prisoners for nearly the entire day to overcrowded, unsanitary cells smaller
than 40 square feet, stated a claim. Turley, 729 F.3d at 652–53.

       This case is sufficiently similar to warrant a like result. A double-bunked 38-
square-foot cell is considerably smaller than the double-bunked 63-square-foot-cell
found constitutional in Rhodes v. Chapman, 452 U.S. 337, 348–49 (1981). Turley has
alleged that his tiny, cramped, poorly ventilated cell, exacerbated by his inability to
leave it for exercise, caused his joint pain, respiratory difficulty, gastrointestinal
problems, and anxiety. These allegations are sufficient to state a valid Eighth
Amendment claim. See also Helling v. McKinney, 509 U.S. 25, 35 (1993) (secondhand
No. 12-3275                                                                           Page 4

smoke); Wilson v. Seiter, 501 U.S. 294, 304 (1991) (exercise is “an identifiable human
need”); Budd v. Motley, 711 F.3d 840, 842-43 (7th Cir. 2013) (“poor sanitation and
hygiene alongside lack of heat and bedding, blocked ventilation, overcrowding, and
inadequate recreation”); Powers v. Snyder, 484 F.3d 929, 932 (7th Cir. 2007) (secondhand
smoke); Gillespie v. Crawford, 833 F.2d 47 (5th Cir. 1987) (“cell block was overcrowded,
had inadequate ventilation and lighting, and was dirt and insect infested,” inmates
complained about conditions, and conditions caused them to contract tuberculosis). Of
course, in reinstating this claim we express no opinion about the factual validity of any
of its allegations, which require proof, and imply no assessment of any potential
defenses to the claim.

       Turley next argues that the district court erred by dismissing his exercise-yard
claim. He explains that he alleged that he warned officials of the overcrowding and
even recited the instance in which he was punched by another inmate who mistook him
as an attacker. But even if the exercise yard is crowded, Turley did not allege that the
overcrowding at the exercise yard denied him “life’s necessities.” See Rhodes, 452 U.S. at
347. Likewise, even if he told guards that another inmate had accidentally punched him,
Turley did not allege that the injury was serious. So the defendants did not know of and
disregard the excessive risk that the crowding posed to his health or safety. See Farmer
v. Brennan, 511 U.S. 825, 837 (1994); Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001).
Accordingly, Turley did not state a claim based on the conditions in the exercise yard.

        Finally, Turley argues that the district court abused its discretion by severing his
retaliation claim against defendant Broshears. He argues that the claim is inextricable
from the claim against Bedinger and that he would suffer prejudice if he brought the
claim in a separate action. Severance is appropriate under Federal Rule of Civil
Procedure 21 as long as the two resulting claims are “discrete and separate.” Rice v.
Sunrise Express, 209 F.3d 1008, 1016 (7th Cir. 2000); see also George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007). Broshears’s decision to discredit Turley’s claim of innocence on the
disciplinary charge was unrelated to Turley’s other claims against other defendants.
Broshears could be liable regardless of whether the other defendants confined Turley in
unconstitutional conditions, mistreated him, or retaliated against him. Because the
district court could resolve Turley’s claim against Broshears without resolving any of
the others, the court did not abuse its discretion by severing it. See Gaffney v. Riverboat
Servs. of Ind., Inc., 451 F.3d 424, 442–43 (7th Cir. 2006); Rice, 209 F.3d at 1016.
No. 12-3275                                                                      Page 5

     Accordingly, we AFFIRM the district court’s judgment except insofar as we
VACATE the district court’s order dismissing Turley’s conditions-of-confinement claim.
We REMAND for further proceedings consistent with this order.
