          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  March 26, 2008
                                No. 07-30770
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

RUSSELL HEWITT

                                            Plaintiff-Appellant

v.

ROBERT HENDERSON; NATHAN CAIN; ROY WILLIAMS; HERBERT
RAGLE; ANGIE PIERCE; MARCUS MYERS; DAVID CLOUSE; GENE
WILSON; BRENT THOMPSON; ROBBIE BERUBE; LINDA RAMSAY;
DELANIE BURGESS

                                            Defendants-Appellees


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 2:06-CV-1697


Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      Russell Hewitt, Louisiana prisoner # 331926, appeals from the dismissal
of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim on
which relief may be granted pursuant to 28 U.S.C. §§ 1915 & 1915A(b)(1).
Hewitt alleges that the defendants have subjected him to cruel and unusual
punishment by denying him the opportunity to participate in out-of-cell

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                    No. 07-30770

recreation during his confinement in administrative segregation.            Hewitt
contends that he has been psychologically and physically damaged by the
defendants’ imposition of absolute cell confinement and asserts that the district
court failed to consider that the total deprivation of out-of-cell exercise violates
the Eighth Amendment. Hewitt further argues that the district court failed to
undertake the required factual inquiry into the constitutionality of the
defendants’ absolute prohibition against exercise or the sufficiency of defendants’
justifications for its exercise policy.
      The district court is directed to dismiss a complaint filed by a prisoner if
the complaint is frivolous or fails to state a claim upon which relief may be
granted. See §§ 28 U.S.C. 1915A(b)(1) & 1915(e)(2)(B). Because the district
court dismissed Hewitt’s claims as both frivolous and for failure to state a claim,
our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
A complaint is “frivolous” if it lacks “an arguable basis in law or fact.” Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999). A plaintiff fails to state a claim upon
which relief can be granted when the complaint does not contain “‘enough facts
to state a claim to relief that is plausible on its face.’” In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (2007)).
      To establish an Eighth Amendment violation for conditions of confinement,
an inmate must show that the alleged violation was sufficiently serious, i.e., that
it deprived him of the most minimal level of life’s necessities, and that prison
officials acted with deliberate indifference to his health or safety. Farmer v.
Brennan, 511 U.S. 825, 834, 847 (1994); Wilson v. Seiter, 501 U.S. 294, 303
(1991). The Supreme Court has identified exercise as “an identifiable human
need” protected by the Eighth Amendment. Wilson, 501 U.S. at 304-05. This
court has held that deprivation of exercise may constitute an impairment of
health, which is actionable under the Eighth Amendment, and that the absence
of outdoor exercise opportunities may constitute an Eighth Amendment

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violation. See Green v. Ferrell, 801 F.2d 765, 771-72 (5th Cir. 1986); Ruiz v.
Estelle, 679 F.2d 1115, 1152 (5th Cir.), modified, 688 F.2d 266 (5th Cir. 1982);
Montana v. Commissioner’s Court, 659 F.2d 19, 22 (5th Cir. 1981), abrogation on
other grounds recognized by Henslee v. Lopez, 20 F.3d 470 (5th Cir. 1994). This
court has suggested that deprivation of exercise claims should be evaluated on
a case-by-case basis using, inter alia, the following criteria: (1) the size of the
inmate’s cell; (2) the amount of time the inmate spends locked in his cell each
day; and (3) the overall duration of the inmate’s confinement. Ruiz, 679 F.2d at
1152; Green 801 F.2d at 771.
        The record in the instant case has not been developed on the specifics of
the exercise prohibition to which Hewitt has been subject or the particulars of
the exercise alternatives available to him.        Furthermore, in reaching its
conclusion that Hewitt’s claims were frivolous and failed to state a claim on
which relief could be granted, the district court did not sufficiently inquire into
Hewitt’s particular conditions of confinement and the exact manner in which the
defendants have applied the exercise prohibition to him. See Ruiz, 679 F.2d at
1152.    For instance, the record is incomplete concerning, inter alia, the
particular size of Hewitt’s cell or the degree to which in-cell exercise in fact was
practicable; whether Hewitt is provided with some form of regular out-of-cell
exercise or an otherwise appropriate exercise alternative; whether Hewitt has
exposure to fresh air and sunlight during his recreation periods; the amount of
time that Hewitt is required to spend in his cell each day; the prospective length
of Hewitt’s imprisonment; and the amount of time that Hewitt already has been
in administrative segregation.      These factors and other specific details of
Hewitt’s conditions of confinement ultimately are determinative of whether
Hewitt has stated an Eighth Amendment claim for deprivation of adequate
exercise opportunities. See McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir.
1979); Montana, 659 F.2d at 22; Ruiz, 679 F.2d at 1152.



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      Thus, treating Hewitt’s allegations as “true (even if doubtful in fact)”
under the revised FED. R. CIV. P. 12(b)(6) standard set forth in Bell Atlantic
Corp., 127 S. Ct. at 1965, Hewitt’s pleadings contain “‘enough facts to state a
claim to relief that is plausible on its face.’” In re Katrina Canal, 495 F.3d at 205
(quoting Bell Atl. Corp., 127 S. Ct. at 1974). For similar reasons, his claims are
not frivolous because they do not lack “an arguable basis in law or fact.” Berry,
192 F.3d at 507. The district court therefore erred in dismissing Hewitt’s
complaint at this stage of the proceedings. Furthermore, to the extent that
Hewitt is challenging the prohibition against out-of-cell exercise as a disciplinary
tool, the additional facts developed on remand also will inform the analysis. See
Turner v. Safley, 482 U.S. 78, 89 (1987).
      For the foregoing reasons, we VACATE the judgment of the district court
and REMAND this case for further proceedings consistent with this opinion. We
express no opinion as to the ultimate disposition of the case.




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