IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40426

ROBERT Z. HERNANDEZ, JR.

Plaintiff - Appellant

v.

ARTHUR H. VELASQUEZ; STEVEN R. SWIFT; LAURENCE P. CHING;

AGRELLO VILLAREAL; E. FRANCO; H. BARRERA; M.K. MCCLEARY;

ALBERT DELEON; WILLIAM J. DUGGER; MICHAEL P. GEERDE;

RONDA L. CAMBY; JEFFREY E. NEWMAN; DONALD R. WILSON

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas 

Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:

Robert Z. Hernandez, Texas prisoner # 837364, brought this § 1983 action

against Defendants, alleging violations of his Eighth Amendment and due

process rights. The district court granted summary judgment to all Defendants,

and Hernandez appeals. We affirm.

BACKGROUND

In March 2002, Texas Department of Criminal Justice (“TDCJ”) officials

received information that two rival Hispanic gangs, the Texas Syndicate (“TS”)

and the Raza Unida (“RU”) were planning a gang war. Security Threat Group

United States Court of Appeals

Fifth Circuit

F I L E D

March 28, 2008

Charles R. Fulbruge III

Clerk
No. 06-40426

1 The STG officer explained in his affidavit, “It was believed that if an inmate was even

suspected of associating with TS or RU, that the rival gang would assault them.”

2

(“STG”) officers in each prison unit were ordered to compile lists of all known,

suspected, and affiliated TS and RU members. In late March 2002, RU members

assaulted and killed a TS member at the Polunsky Unit, and lockdowns were

ordered for all known or suspected TS and RU members and affiliates. These

lockdowns were not punitive in nature, but were for the safety of the suspected

gang members and others in the prison system.1

At that time, Robert Hernandez was incarcerated at the Darrington Unit,

serving a life sentence for capital murder. Prior to his lockdown he was

classified as a minimum custody, State Approved Trusty III inmate living in the

general prison population. In April 2002, Hernandez was identified by a

Darrington STG officer as a suspected TS member and was placed in lockdown

status. This custodial assignment was based on a “screen” in Hernandez’s file

indicating he had been a suspected TS member since June of 2001. The STG

also had received a handwritten communication from Hernandez dated April 3,

2002, in which Hernandez admitted he was a TS “helper” in the past, though he

claimed he had never become a full-fledged “member” and had since withdrawn

from the TS completely.

Hernandez claims that, beginning in July 2002, he was denied all outdoor

and out-of-cell exercise privileges. He remained in lockdown status while prison

officials investigated suspected gang members and worked to defuse tensions

between the rival gangs. In November 2002, a search of Hernandez’s regular cell

turned up evidence suggesting a possible TS association. Prison officials found

a letter mentioning a TS member, a note from the TS member, and addresses of
No. 06-40426

3

confirmed TS members. According to the STG officer, this was not enough to

confirm Hernandez as a TS member, and as Hernandez was already classified

as a suspected TS member, nothing was done with the new information.

Hernandez remained in lockdown until June 2003, when he met with the STG

officer to ask that questionable information be removed from his file. At that

time the STG officer determined that the initial “screen” linking Hernandez to

the TS actually applied to another inmate surnamed Hernandez. Robert

Hernandez was removed from lockdown, and his record was cleared of the

suspected TS status.

Hernandez alleges that during lockdown he was confined to a cell

measuring 5' x 9', which he usually shared with another inmate. He was allowed

to leave his cell only for showers, medical appointments, and family visits.

Defendants presented evidence at summary judgment that prisoners on

lockdown are allowed indoor recreation in the “dayroom,” but the evidence does

not show that Hernandez himself was ever allowed this opportunity. Prison

officials did provide Hernandez with information on how to perform in-cell

exercises. Nonetheless, Hernandez claims that due to his confinement his

“muscles have allowed to atrophy — stiffening up and he has lost his range of

movement and flexibility.” Hernandez also complains he suffered from

depression.

During his time on lockdown status, Hernandez filed administrative

grievances, arguing that he was not a TS member and asking to be returned to

the general prison population. TDCJ officials responded to these grievances,

advising that Hernandez was properly on lockdown for safety and security
No. 06-40426

2 For example, in late 2002 defendant E. Franco responded to a letter from Hernandez,

stating, in part, “You will be released when the lock-down is lifted should you not be validated

as a TS member. You are in lockdown status to protect your safety and the safety of others.

. . . I have reviewed your file and found enough evidence to support your suspected status.”

Another grievance review from May 2002 bears the handwritten note, “Lock up due to

Hispanic race.” This is not, as the district court seemed to infer, an explanation of why prison

officials placed Hernandez on lockdown. Rather it is a summary of Hernandez’s attached

grievance, alleging that he had been placed on lockdown solely because he is Hispanic.

3 At the time Hernandez filed his complaint, he was still on lockdown status.

4 Defendants explained to the district court that they initially failed to brief the due

process claim because they believed the magistrate judge had limited Hernandez’s claim to

Eighth Amendment issues.

4

reasons.2 Nevertheless, Hernandez contends he was provided with no hearing

or review, either prior to or during lockdown, in violation of his due process

rights.

Hernandez filed this lawsuit on June 13, 2003,3 alleging he was placed on

lockdown status in violation of his due process rights, and that the denial of

outdoor and out-of-cell exercise constituted cruel and unusual punishment in

violation of the Eighth Amendment. Defendants filed a motion for summary

judgment, which the district court granted as to the Eighth Amendment claims.

The district court denied the motion for summary judgment on the due process

claims, noting that Defendants had failed to include this issue in their motion

for summary judgment. With the permission of the court,4 Defendants filed a

second motion for summary judgment on the due process claims. The district

court granted this motion, adopting the report of the magistrate judge. This

appeal followed.
No. 06-40426

5 While this circuit has noted in the past that “deprivation of exercise per se does not

violate the cruel and unusual punishment clause,” Miller v. Carson, 563 F.2d 741, 751 n.12

(5th Cir. 1977); see also Wilkerson v. Maggio, 703 F.2d 909, 912 n.5 (5th Cir. 1983), it has also

noted that denial of exercise may constitute an “impairment of health” actionable under the

Eighth Amendment. See Miller, 563 F.2d at 751 n.12.

5

STANDARD OF REVIEW

This court reviews the district court’s grant of summary judgment de novo.

Berquist v. Wash. Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). Summary

judgment is appropriate if the submissions show that “there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter

of law.” FED R. CIV. P. 56(c). When deciding whether a fact issue exists, we

review the evidence and the inferences drawn from it in the light most favorable

to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co.,

336 F.3d 410, 412 (5th Cir. 2003). Even if this court disagrees with the reasons

given by the district court, it may affirm a grant of summary judgment on any

grounds supported by the record and presented to the court below. Berquist,

500 F.3d at 349; Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999).

DISCUSSION

I. Eighth Amendment

Hernandez claims the denial of outdoor and out-of-cell exercise for thirteen

months constituted cruel and unusual punishment under the Eighth Amendment to the Constitution.5 We read his complaint primarily as a challenge to

the conditions of his confinement, and address it first under that standard. To

maintain this action under the Eighth Amendment, Hernandez must meet two

requirements. First, he must show that his confinement resulted in a
No. 06-40426

6

deprivation that was “objectively, sufficiently serious.” Farmer v. Brennan, 511

U.S. 825, 834 (1994) (internal quotation and citation omitted). It is well settled

that “the Constitution does not mandate comfortable prisons,” and that prison

conditions may be “restrictive and even harsh” without running afoul of the

Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981); see also

id. at 347 (noting that such conditions are “part of the penalty that criminal

offenders pay for their offenses against society”). Nonetheless, conditions may

not be “grossly disproportionate to the severity of the crime warranting

imprisonment.” Id. The Supreme Court has defined a “sufficiently serious”

deprivation under the Eighth Amendment as the denial of“the minimal civilized

measure of life’s necessities.” Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S.

at 347).

Assuming Hernandez can show a sufficiently serious deprivation, he also

must show that prison officials acted with “deliberate indifference” to his health

or safety. Id. This follows from the principle that “only the unnecessary and

wanton infliction of pain implicates the Eighth Amendment.” Id.; see also id. at

837 (“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it

outlaws cruel and unusual ‘punishments.’”). A prison official acts with

deliberate indifference “only if he knows that inmates face a substantial risk of

serious harm and disregards that risk by failing to take reasonable measures to

abate it.” Id. at 847. This knowledge requirement is subjective: The official

“must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.”

Id. at 837.
No. 06-40426

6

Indeed, Hernandez acknowledges in his complaint that he was receiving medical

treatment for the symptoms allegedly resulting from his lack of exercise.

7

We conclude that Hernandez cannot show deliberate indifference as

required by Farmer because there is no record evidence he was ever placed at

“substantial risk of serious harm.” At summary judgment there was evidence

on both sides as to the nature of Hernandez’s discomfort. Defendants presented

expert testimony that Hernandez’s records revealed no complaint of muscle

disorder. Defendants’ exhibits also included Hernandez’s grievance forms and

medical requests, along with the prison officials’ responses, which reference the

same symptoms Hernandez recites in his complaint. For his part, Hernandez

presented no evidence at summary judgment, though the allegations in his

verified complaint may be considered competent evidence insofar as they comply

with the requirements of Federal Rule of Civil Procedure 56(e). King v. Dogan,

31 F.3d 344, 346 (5th Cir. 1994). Assuming the evidence creates a fact issue as

to whether Hernandez suffered from muscle atrophy, stiffness, loss of range of

motion, and depression, there is nonetheless no indication these conditions posed

a substantial risk of serious harm. The district court properly concluded there

was no genuine issue as to whether Hernandez suffered a “serious illness or

injury” sufficient to constitute an Eighth Amendment violation. See Estelle v.

Gamble, 429 U.S. 97, 105 (1976).

It is not entirely clear from Hernandez’s complaint that he is also alleging

an impairment of health claim.6 But he does allege medical symptoms resulting

from his lockdown confinement, and as he is proceeding pro se, we construe his

pleadings liberally. Id. at 106. If his complaint is read as alleging an impairment of health, Hernandez still must make the two-prong showing required by
No. 06-40426

7 Though it appears the district court never ruled on the motion to reconsider, the

unexcused failure to present available evidence at the time of summary judgment is a valid

reason for denying a motion for rehearing. ICEE Distribs., Inc. v. J&J Snack Foods Corp.,

445 F.3d 841, 847 (5th Cir. 2006).

8

Farmer. In the specific context of a health impairment claim, the facts of a case

must“clearly evince”the prisoner’s serious medical need and the prison officials’

deliberate indifference to it. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985) (“The legal conclusion of ‘deliberate indifference,’ therefore, must rest on

facts clearly evincing ‘wanton’ actions on the part of the defendants.”); see also

Estelle, 429 U.S. at 106. Merely negligent diagnosis or treatment of a medical

condition does not state a claim under the Eighth Amendment. Estelle, 429 U.S.

at 106. Rather, there must be “deliberate indifference, which results in

substantial harm.” Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

Hernandez has not shown that prison officials failed reasonably to address

his medical needs. The Defendants’ summary judgment evidence shows that

prison officials systematically responded to Hernandez’s complaints with

treatment. Hernandez initially presented no documentary evidence, but after

the court granted the Defendants summary judgment on the Eighth Amendment

claims, Hernandez filed a motion to reconsider. Attached to this motion were

several sick call requests Hernandez submitted during lockdown complaining of

muscle soreness, stiffness, and loss of range of motion.7 These sick call requests

also bear notations from medical staff showing that they responded to

Hernandez timely. These forms and other evidence in the record document that

medical personnel responded to each of Hernandez’s requests, treating his back

pain with heat packs, conducting an x-ray, advising Hernandez to take naproxen

and ibuprofen for soreness, and recommending exercises for soreness and
No. 06-40426

8 Wilkerson v. Stalder, 329 F.3d 431, 435-36 (5th Cir. 2003); Moody v. Baker, 857 F.2d

256, 257-58 (5th Cir. 1988); see also Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“[T]he

Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse

conditions of confinement.”).

9

stiffness. Viewing this evidence in the light most favorable to Hernandez, it does

not show that Defendants wantonly disregarded his medical needs. Rather, it

shows that Hernandez was provided with medical care as he requested it. For

this reason as well, he cannot show “deliberate indifference,” and the district

court’s judgment on his Eighth Amendment claim is affirmed.

II. Due Process

Hernandez also claims his lockdown without a hearing violated his rights

to due process. To maintain this due process challenge, Hernandez must

establish that his transfer to lockdown deprived him of a liberty interest

protected by the Fourteenth Amendment. Meachum v. Fano, 427 U.S. 215, 223

(1976). But generally speaking, a prisoner has no liberty interest in his

custodial classification.8 This court has repeatedly affirmed that “[p]rison

officials should be accorded the widest possible deference” in classifying

prisoners’ custodial status as necessary “to maintain security and preserve

internal order.” McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990);

Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2005). And in the specific

context of administrative lockdown, we have clearly held that “absent

extraordinary circumstances, administrative segregation as such, being an

incident to the ordinary life as a prisoner, will never be a ground for a

constitutional claim.” E.g., Pichardo v. Kinker, 73 F.3d 612, 612-13 (5th Cir.
No. 06-40426

9 See also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (placement in administrative

segregation based on allegedly erroneous gang-member status was not a “deprivation of a

constitutionally cognizable liberty interest”); Harper v. Showers, 174 F.3d 716 (5th Cir. 1999)

(placement of prisoner on lockdown under 24-hour observation did not implicate due process).

10

1996) (affirming dismissal of claim that lockdown for suspected gang affiliation

violated due process).9

Only when a prisoner demonstrates “extraordinary circumstances” may

he maintain a due process challenge to a change in his custodial classification.

Id. In other words, segregated confinement is not grounds for a due process

claim unless it “imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,

484 (1995).

Cases where segregated confinement is sufficiently “atypical”to implicate

a due process liberty interest involve circumstances much harsher than those

presented here. In Wilkerson v. Stalder, this court held that due process might

have been violated where the plaintiffs had been kept on lockdown status for 30

years. 329 F.3d at 436 (remanding for determination whether such confinement

was “atypical” under Sandin). In another case, the Supreme Court held that

transfer to the Ohio “Supermax” facility implicated a liberty interest, in part

because conditions there were “more restrictive than any other form of

incarceration in Ohio.” Wilkinson v. Austin, 545 U.S. 209, 214 (2005). The

Wilkinson Court noted that at the Supermax facility, “almost all human contact

is prohibited.” Id. at 223. Ohio Supermax prisoners are kept in single cells with

solid metal doors that prevent communication from one cell to another; prisoners

take all their meals alone in their cells rather than in a common area; and

“opportunities for visitation are rare” and are conducted through glass walls. Id.
No. 06-40426

10 See Harper, 174 F.3d at 717 (no due process claim where inmate claimed he was

placed in lockdown “in cells next to psychiatric patients who scream, beat on metal toilets,

short out the power, flood the cells, throw feces, and light fires;” was often “moved into filthy,

feces-smeared cells;” and was deprived of “cleanliness, sleep, and peace of mind.”); Martin v.

Scott, 156 F.3d 578, 579 n.1, 580 (5th Cir. 1998) (segregated prisoner’s complaints that his

recreation and visitation time were restricted, that he was denied certain personal items, and

that he was handcuffed every time he left his cell were “far from extraordinary”); Griffin v.

Vaughn, 112 F.3d 703 (3d Cir. 1997) (prisoner’s 15-month (and at the time, potentially

indefinite) lockdown for suspected rape of a prison guard was not an atypical or significant

hardship).

11

at 214, 223-24. Ohio Supermax inmates spend 23 hours a day alone in their

cells, where a light remains on at all times. Id. at 224. The Supreme Court

further noted that confinement at the Supermax facility was indefinite, and

otherwise eligible inmates were disqualified for parole consideration. Id. These

conditions and others were sufficiently extraordinary that the Supreme Court

concluded prisoners had a liberty interest in avoiding assignment to the

Supermax facility. Id.

The thirty-year confinement in Wilkerson and the extreme conditions in

Wilkinson are distinguishable from the present facts. Here, Hernandez has not

shown that his lockdown posed an atypical or significant hardship. The

conditions he complains of — confinement to a shared cell for twelve months

with permission to leave only for showers, medical appointments, and family

visits — are comparable to, if not less severe than those found unactionable in

other cases.10 As the Seventh Circuit noted in a similar case, non-disciplinary

lockdown is by no means an atypical prison experience:

Every state must have somewhere in its prison system single-person

cells in which prisoners are sometimes confined not because they

have misbehaved but simply because the prison has no other space,

wishes to protect some prisoners from others, wishes to keep

prisoners isolated from one another in order to minimize the risk of
No. 06-40426

12

riots or other disturbances, wishes to prevent the spread of disease,

and so forth.

Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997) (Posner, C.J.). Temporary

lockdown designed to prevent gang-related violence is to be expected as an

ordinary incident of prison life. Viewing the facts in the light most favorable to

Hernandez, his assignment to lockdown was well “within the range of

confinement to be normally expected” for a prisoner serving a life sentence for

capital murder. Sandin, 515 U.S. at 487. Accordingly, he has not alleged a

deprivation of a cognizable liberty interest. The district court’s grant of

summary judgment to Defendants on this claim was proper.

CONCLUSION

For the aforementioned reasons, the judgment of the district court is

AFFIRMED.