In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4145

GLEN DELANEY,

Plaintiff-Appellee,

v.

GEORGE DeTELLA, GLENN MALONE,
CHRISTOPHER HUGHES, EUGENE McADORY,
CLARENCE WRIGHT, DONALD BURNS, and
DAVID WALKER,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 4476--David H. Coar, Judge.

Argued June 4, 2001--Decided July 9, 2001


  Before RIPPLE, EVANS, and WILLIAMS, Circuit
Judges.

  EVANS, Circuit Judge. Glen Delaney, an
inmate at Stateville Correctional Center
in Illinois, filed this suit under 42
U.S.C. sec. 1983 alleging an Eighth
Amendment violation for being denied all
out-of-cell exercise opportunities for 6
months. The defendants, six guards and
the prison warden, filed a motion for
summary judgment asserting a qualified
immunity defense. District Judge David H.
Coar denied the motion and the defendants
appeal.

  In January 1995, Delaney was placed in
Stateville’s segregation unit. While in
segregation, he was allowed 5 hours of
out-of-cell exercise time (yard
privileges) per week as called for by a
prison regulation./1

  In the spring of 1996, Stateville
instituted a "lockdown" for the purpose
of reviewing security measures,
conducting a "shakedown" of inmates, and
redesigning prisoner cells. The lockdown
continued for just over 6 months, and
during this time Delaney was denied all
out-of-cell exercise. His movements were
restricted to a once a week shower, three
family visits (one in April, one in May,
and one in June), and two brief trips to
the prison’s medical unit. During these
excursions he was shackled and chained to
the inmate in front and behind him. A
trip to either the medical unit or the
visitation center took around 10 minutes.

  The segregation cells are small and
cramped, measuring only about 122 inches
by 43 to 56 inches. During the 6-month
lockdown, Delaney says he repeatedly
spoke with the correctional officer
defendants (McAdory, Malone, Hughes,
Walker, Burns, and Wright) about getting
yard privileges so he could exercise. He
also filed a grievance with Warden George
DeTella. However, no out-of-cell exercise
opportunities were offered to Delaney or,
for that matter, to any other segregated
inmates during the long lockdown.

  As a result of being denied an
opportunity to exercise for over 6
months, Delaney contends he suffered from
migraines, heartburn, stomach cramps,
neck pains, constipation, lethargy, and
depression. Although he received some
medication for his ailments, he requested
medical attention from more senior
personnel and filed grievances against
several prison medical technicians.

  Before Judge Coar, the defendants argued
that penological interests justified the
6-month denial of exercise privileges and
that guards (but not Warden DeTella) were
not personally involved in the lockdown
decision. On appeal, the defendants shift
their focus, arguing primarily that
Delaney did not suffer a serious injury
and that even if he did, they were not
told of the severity of his complaint.

  We have jurisdiction over an
interlocutory appeal from a denial of
qualified immunity only when no factual
issues need be resolved. Behrens v.
Pelletier, 516 U.S. 299, 308 (1996);
Levenstein v. Salafsky, 164 F.3d 345, 346
(7th Cir. 1998). We must review the
district court’s denial of qualified
immunity de novo, considering all
undisputed facts in the light most
favorable to Delaney. Khuans v. School
Dist. 110, 123 F.3d 1010, 1013 (7th Cir.
1997).

  In reviewing the affirmative defense of
qualified immunity, we apply a two-step
approach. As a threshold issue, we
determine if Delaney has asserted a
violation of a constitutional right.
County of Sacramento v. Lewis, 523 U.S.
833, 841 n. 5 (1998); Kitzman-Kelley v.
Warner, 203 F.3d 454, 457 (7th Cir.
2000). We next consider whether the right
was clearly established at the time the
alleged violation occurred. Wilson v.
Layne, 526 U.S. 603, 609, 119 S. Ct.
1692, 1697 (1999). Thus, the judge-made
qualified immunity doctrine serves to
protect government officials from
insubstantial suits based on
unforeseeable changes in the law. See
Crawford-El v. Britton, 523 U.S. 574, 590
(1998).

  Whether the first prong of a qualified
immunity defense, as outlined by the
Court in Lewis, is a mandatory step or
merely a recommendation remains, to some
extent, a bit of an open question. See
Hudson v. Hall, 231 F.3d 1289, 1296 f.5
(11th Cir. 2000); Kalka v. Hawk, 215 F.3d
90 (D.C. Cir. 2000); Horne v. Coughlin,
191 F.3d 244 (2nd Cir. 1999). However, in
recent cases where the Supreme Court
considered qualified immunity defenses on
summary judgment, Saucier v. Katz, 2001
WL 672265, ___ S. Ct. ___ (June 18,
2001), Wilson v. Layne, 526 U.S. 603, and
Conn v. Gabbert, 526 U.S. 286, 119 S. Ct.
1292 (1999), it first addressed if a
constitutional violation was asserted
before moving on to the question of
whether it was "clearly established" at
the time of the alleged violation.

  These cases, however, require only that
a plaintiff allege a constitutional
deprivation; thus we are required to
determine only whether Delaney’s
allegations, if true, state a claim of
deprivation. Wilson, 526 U.S. at 609;
Conn, 526 U.S. at 290; see also Siegert
v. Gilley, 500 U.S. 226, 232 (1991)
(prior to deciding if right is "clearly
established," must determine if
constitutional claim is asserted at all
and this determination is "purely
legal").

  An Eighth Amendment claim has two
components-- objective and subjective. To
satisfy the objective component, "the
deprivation alleged must be, objectively,
’sufficiently serious.’" Henderson v.
Sheahan, 196 F.3d 839, 845 (7th Cir.
1999) (citing Farmer v. Brennan, 511 U.S.
825, 834 (1994)). "Therefore, ’extreme
deprivations are required to make out a
conditions-of-confinement claim.’" Id.
(quoting Hudson v. McMillian, 503 U.S. 1,
9 (1992)).

  The subjective component relates to a
defendant’s state of mind and requires a
showing of deliberate indifference. At a
minimum in a case like this, an inmate
must allege "actual knowledge of
impending harm easily preventable." Jack
son v. Duckworth, 955 F.2d 21, 22 (7th
Cir. 1992) (quoting Duckworth v. Franzen,
780 F.2d 645, 653 (7th Cir. 1985)). "A
failure of prison officials to act in
such circumstances suggests that the
officials actually want the prisoner to
suffer the harm." Id.

  Delaney contends that to deny a
segregated inmate all out-of-cell
exercise opportunities for 6 months
constitutes an objectively serious
deprivation of a basic human need. In
determining whether an act or omission
constitutes cruel and unusual punishment,
the Eighth Amendment provides little
guidance. Thus, courts have added
substance to its meager admonishment by
consulting the "evolving standards of
decency that mark the progress of a
maturing society." Rhodes v. Chapman, 452
U.S. 337, 346 (1981). Thus, conditions
which may have been acceptable long ago
may be considered unnecessarily cruel in
light of our growing understanding of
human needs and the changing norms of our
society. Davenport v. DeRobertis, 844
F.2d 1310, 1315 (1988) ("The conditions
in which prisoners are housed, like the
poverty line, is a function of a
society’s standard of living. As that
standard rises, the standard of minimum
decency of prison conditions, like the
poverty line, rises too."). While the
Constitution does not require that
prisons be comfortable, prison conditions
do violate the Constitution where they
"deprive inmates of the minimal civilized
measure of life’s necessities." Rhodes,
452 U.S. at 347. Therefore, we consider
whether a complete denial of reasonable
exercise opportunities for 6 months falls
below contemporary standards.

  In recent years we have not only
acknowledged that a lack of exercise can
rise to a constitutional violation,
French v. Owen, 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).

  Here, both in duration and severity, the
nature of Delaney’s alleged deprivation
was significant and serious, and
apparently no alternatives were made
available to mitigate the effects of the
deprivation. We recently noted that
segregation is akin to solitary
confinement and that such confinement,
uninterrupted by opportunities for out-
of-cell exercise "could reasonably be
described as cruel and, by reference to
the current norms of American prisons,
unusual." Pearson v. Ramos, 237 F.3d 881,
884 (7th Cir. 2001). Except for limited
calisthenics inside his small cell, the
defendants do not argue that Delaney had
any other recreational alternatives or
access to common areas which may have
mitigated the severity of a 6-month
denial of yard privileges. See Harris,
839 F.2d at 1236 (no serious deprivation
where segregated inmate retained ability
to move freely through unit and could
improvise exercise regimen); Shelby, 798
F.2d at 1089 (no violation where
prisoners had access to common area
exercise bikes). Here, for 6 months,
Delaney remained in a cell the size of a
phone booth without any meaningful chance
to exercise.

  Nor can the defendants argue that the 6-
month denial was brought on by Delaney’s
misconduct or propensity to escape. See
Pearson, 237 F.3d at 885 (four
consecutive, 90-day denials of out-of-
cell exercise privileges for serious
violations of prison disciplinary rules
not cruel and unusual punishment);
LeMaire v. Maass, 12 F.3d 1444, 1457-58
(9th Cir. 1993) (no Eighth Amendment
violation where prisoner denied out-of-
cell exercise for 5 years because inmate
posed constant threat of attack); Martin
v. Tyson, 845 F.2d 1451, 1456 (7th Cir.
1988) (no constitutional violation for 4-
month denial of exercise where prisoner
posed escape risk). Rather, the parties
agree that Delaney was not a fractious
inmate and his yard privileges, prior to
the lockdown, were never withheld for
disciplinary purposes.

  While there may in certain cases be
legitimate penological reasons justifying
an extended denial of exercise
privileges, here none are presented.
Citing the lockdown, the defendants
merely say, in conclusory fashion, that
allowing inmates yard time for exercise
would pose a "potential security threat."
This unsupported statement is
insufficient. Given the length of this
exercise restriction, the state
defendants should have, but didn’t,
advance any legitimate penological need
for denying all forms of outside
exercise.

  The defendants also argue that the
denial of all exercise opportunities was
not an objectively serious deprivation
because Delaney didn’t provide expert
testimony showing that his physical
health was threatened by the denial. But
as we have noted, on a motion for
qualified immunity we consider whether
plaintiff’s allegations, if true, state
a claim of deprivation. Wilson, 526 U.S.
603, 609. To decide if qualified immunity
should be granted we ask only, if viewed
in the light most favorable to Delaney,
was a deprivation alleged? Thus, we
consider whether it was possible that
serious injuries were sustained, not
whether it was probable. See Antonelli,
81 F.3d 1422, 1432 (viable Eighth
Amendment claim for denial of exercise
where inmate alleged "health and physical
well being have deteriorated").

  Moreover, while we have not waived the
injury requirement for claims involving
the denial of exercise, but see Lopez v.
Smith, 203 F.3d 1122, 1133 f.15 (9th Cir.
2000) (where inmate alleges long-term
denial of exercise--in excess of 6 weeks-
-no showing of adverse medical effects
required), we have acknowledged the
strong likelihood of psychological injury
when segregated prisoners are denied all
access to exercise for more than 90 days.
Davenport v. DeRobertis, 844 F.2d 1310,
1313 ("[T]he record shows, what anyway
seems pretty obvious, that isolating a
human being from other human beings year
after year or even month after month can
cause substantial psychological damage .
. . ."). We have also noted, in
conditions-of-confinement cases, that
there may be some interplay between the
severity of the deprivation alleged and
the required showing of injury. Dixon v.
Godinez, 114 F.3d 640, 643 (given
severity and duration of prison
condition,"[c]old temperatures need not
imminently threaten inmates’ health to
violate the Eighth Amendment"); Del Raine
v. Williford, 32 F.3d 1024, 1035 (7th
Cir. 1994) (need not allege frostbite or
hypothermia to establish that cold
temperatures endangered inmate’s health).

  The defendants also are wrong in
concluding that only a showing of
physical injury can satisfy an Eighth
Amendment claim. See Hudson, 503 U.S. 1,
16 (Blackmun, J., concurring) ("It is not
hard to imagine inflictions of
psychologial harm--without corresponding
physical harm--that might prove to be
cruel and unusual punishment."). Here,
Delaney alleges both physical and mental
injuries including migraines, heartburn,
stomach cramps, neck pains, constipation,
lethargy, and depression. It is possible
that his mental injuries, along with the
attendant physical symptoms, were
sufficiently severe. He was given
medications and taken to the health unit
twice, and he repeatedly requested
additional treatment. Thus, Delaney has
alleged an injury from an objectively
serious deprivation.

  We now turn to the subjective prong of
this claim, the element of deliberate
indifference. Wilson v. Seiter, 501 U.S.
294, 303 (1991). "[A]n Eighth Amendment
claimant need not show that a prison
official acted or failed to act believing
that harm actually would befall an
inmate; it is enough that the official
acted or failed to act despite his
knowledge of a substantial risk of
serious harm." Farmer v. Brennan, 511
U.S. 825, 842 (1994). Moreover, in
determining whether prison officials had
knowledge of the potential harm, we
consider whether "the circumstances
suggest that the defendant-official being
sued had been exposed to information
concerning the risk and thus ’must have
known’ about it . . . ." Id.

  Delaney argues that these defendants
were subjectively aware that denying
prisoners access to all out-of-cell exer
cise for more than 90 days posed a
substantial risk of serious harm. In 1988
we upheld an injunction requiring prison
officials (at Stateville) to provide 5
hours of exercise per week to prisoners
in segregation for more than 90 days.
Davenport, 844 F.2d 1310, 1314. We noted
that at trial the medical director of the
Illinois Department of Corrections
testified to the "serious adverse effects
on the physical and mental health" of
segregated inmates who were denied access
to exercise. Id. at 1313. The risk
identified in Davenport was acknowledged
in the institutional directive requiring
5 hours of exercise per week for
segregated inmates.

  Also, the defendants argue that they
were unaware that the denial of exercise
posed a significant risk to Delaney.
However, it is enough that Delaney
alleges that they acted with deliberate
indifference towards all members of a
class of which he is a part, rather than
having to allege that they acted with
particularized malice towards him. See
Crawford-El, 523 U.S. 574, 592 ("When
intent is an element of a constitutional
violation . . . the primary focus is not
on any possible animus directed at the
plaintiff; rather, it is more specific,
such as an intent to disadvantage all
members of a class that includes the
plaintiff . . . ."). Deliberate indiffer
ence is akin to criminal recklessness;
thus, it is enough that defendants are
aware that their action may cause injury
without being able to divine the most
likely victim. Farmer, 511 U.S. at 843
("Nor may a prison official escape
liability for deliberate indifference by
showing that, while he was aware of an
obvious, substantial risk to inmate
safety, he did not know that the
complainant was especially likely to be
assaulted by the specific prisoner . . .
.").

  Here, Delaney alleges that he repeatedly
complained to each of the named
defendants, filed a grievance, and
requested medical attention frequently
because he could not exercise outside his
cell. In spite of these repeated requests
and their knowledge of the potential
risk, Delaney claims the defendants did
nothing. This inaction satisfies the sub
jective element of an Eighth Amendment
claim. See Jackson, 955 F.2d 21, 22
(inmate’s allegation that prison officers
knew of unconstitutional conditions but
did nothing was sufficient to show
"deliberate indifference").

  Having found that Delaney has alleged a
constitutional violation, we consider
whether the right he asserts was clearly
established prior to the spring of 1996.
"’[C]learly established’ for purposes of
qualified immunity means that ’[t]he
contours of the right must be
sufficiently clear that a reasonable
official would understand that what he is
doing violates that right.’" Wilson v.
Layne, 526 U.S. 603, 614-15 (quoting
Anderson v. Creighton, 483 U.S. 635, 640
(1987)); Lanigan v. Village of East Hazel
Crest, 110 F.3d 467, 472 (7th Cir. 1997).
"[T]he inquiry focuses on the objective
legal reasonableness of the action, not
the state of mind or good faith of the
officials in question." Levenstein v.
Salafsky, 164 F.3d 345, 350 (7th Cir.
1998) (quoting Erwin v. Daley, 92 F.3d
521, 525 (7th Cir. 1996)).

  While the right must be defined at the
appropriate level of specificity, it is
not to say "that an official action is
protected by qualified immunity unless
the very action in question has
previously been held unlawful . . . ."
Wilson, 526 U.S. at 615. Rather, it is
enough if, based on the pre-existing law,
the unlawfulness of the conduct is
apparent. Id.

  As early as 1986--10 years before this
lockdown was instituted--we held that a
lack of exercise could rise to a
constitutional violation. French, 777
F.2d 1250, 1255. Then in 1988 we decided
Davenport v. DeRobertis, 844 F.2d 1310,
arising from this same segregation unit.
We upheld the district court’s injunction
requiring Stateville officials to provide
segregated inmates "with at least five
hours of exercise time per week in order
to comply with the Eighth Amendment." Id.
at 1315. We based our decision in part on
the impressive number of cases from our
sister circuits which held that failure
to provide inmates with the opportunity
for at least 5 hours of exercise a week
outside the cell raised serious
constitutional questions. Id. A year
before this lockdown was instituted, we
again noted that "[t]o deny a prisoner
all opportunity for exercise outside his
cell would, the cases suggest, violate
the Eighth Amendment unless the prisoner
posed an acute security risk if allowed
out of his cell for even a short time."
Anderson v. Romero, 72 F.3d 518, 527 (7th
Cir. 1995). Thus, years before the
lockdown at issue here was instituted,
the case law clearly established that
extended denials of exercise privileges
raised constitutional concerns./2 In
light of Davenport and Anderson, it was
objectively unreasonable for prison offi
cials to institute a complete 6-month
denial of all out-of-cell exercise
privileges for segregated prisoners.

  Finally, we note that it may very well
be that the defendant guards have no
liability here because they did not
establish the lockdown. If they had no
discretion, then it would appear that
only Warden DeTella is a proper
defendant. But we can’t say that now on
this record, for the defendants have made
no effort to, for instance, outline the
chain of command--with responsibilities--
assigned to each. On this record, Judge
Coar was right to deny the qualified
immunity plea of all defendants. While
all of these defendants may have other
defenses available to them, at this stage
of the case the order denying them an
early exit on qualified immunity grounds
is AFFIRMED and the case REMANDED for
further proceedings.

FOOTNOTES

/1 The Stateville Institutional Directive
05.04.000K3 at II.C.9 provides:

Inmates who have been housed in segregation less
than 90 days will be afforded a minimum of one
hour of recreational activity outside their cells
per week. Recreational activity will be noted in
a log. Five hours of recreational yard time shall
be available to all inmates who have served a
minimum of 90 days in segregation status in
compliance with the Davenport Consent Decree.

/2 To support its argument that the pre-1996 case
law on the denial of exercise was unclear, the
defendants cite two cases outside this circuit.
Strickler v. Waters, 989 F.2d 1375, 1380 (4th
Cir. 1993) (6 months without outdoor exercise did
not constitute a constitutional violation where
inmates had access to day room for indoor exer-
cise during waking hours), and Wishon v. Gammon,
978 F.2d 446, 449 (8th Cir. 1992) (limiting out-
of-cell exercise to 45 minutes once a week did
not violate the Eighth Amendment rights where
inmate was confined to protective custody for his
own safety). Both cases are easily distinguish-
able. Neither case involved a complete denial of
all out-of-cell exercise or recreational options.
