NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 31, 2009 * Decided April 2, 2009



### Before

F RANK H. E ASTERBROOK , Chief Judge

D IANE P. W OOD , Circuit Judge

D IANE S. S YKES , Circuit Judge

No. 07

- 302 1

M ARK A. W INGER , Plaintiff

- Appellant
,

v

. G UY D. P IERCE , et al

. , Defendants

- Appellees

. Appeal from the United States District Court for the Central District of Illinois.

No. 06

- 1226 Harold A. Baker, Judge

.

Order Mark Winger filed a complaint under 42 U.S.C. §1983, contending that officials at his prison violated the Constitution by restricting his opportunity for outdoor exercise for more than a year. A disciplinary infraction (soliciting a murder) led to the revocation of a year’s good

- time credits , a year in segregation, and a year’s loss of yard privileges. According to the complaint Winger spent at least 9 consecutive months indoors. After he complained of panic attacks, he was a llowed a single hour of outdoor exercise. The district court dismiss ed the complaint u n der 28 U.S.C. §1915A, citing Pearson v. Ramos
, 237 F.3d 881 (7th Cir. 2001), for the prop o sition that a year’s denial of yard privileges does not violate the Constitution’s eighth amendment.

Pearson reached its conclusion only after a tr ial, and the court thus was able to evaluate the effects of the limit on yard privileges in the context of the prison’s justific a tions for the restrictions. We observed along the way that an unjustified, lengthy depr i vation of opportunity for out

- of

- cell e xercise “could reasonably be d e scribed as cruel and, by refe r ence to the current norms of American prisons, unusual.” 237 F.3d at 884. See also

* Defendants were not served with process in the district court and have elected not to participate in this appeal, which is submitted for decision on appellant’s brief and the record. See Fed. R. App. P. 3 4(a); Cir. R. 34(f).No. 07

- 3021 Page 2

Delaney v. D e Tella , 256 F.3d 679, 684 (7th Cir. 2001); Antonelli v. Sheahan , 81 F.3d 1422, 1432 (7th Cir. 1996). But Pearson’s misconduct justified the restrictions, we co n cluded. Pearson repeatedly attacked guards, making it understandable that the prison wanted a form of punishment that reduced his opportunity for similarly aggressive b e havior: “To confine in ‘sol itary’ a prisoner who behaves like a wild beast whenever he is let out of his cell is the least cruel measure that occurs to us for dealing with such a pe r son.” 237 F.3d at 885. Winger equates “lack of yard privileges” with “lack of exercise.” If that is s o, then it is difficult to see how even nine months’ deprivation could be deemed consistent with the eighth amendment. Dismissal under §1915A was therefore inappropriate. Yet pe rhaps the prison offered Winger an o p portunity for adequate indoor exercise, or pe rhaps there are good penological reasons for the sort of restrictions to which Winger

was su b jected. See Turner v. Safley , 482 U.S. 78 (1987). Once the defendants answer the

co m plaint, and the parties have an opportunity to pr e sent evidence, these quest ions may come into focus. We do not hold that Winger is entitled to prevail, only that his

co m plaint states the sort of claim that cannot be di s missed out of hand. Because further proceedings are necessary, the district court may wish to reco n sider whether it would be appropriate to recruit counsel to assist Winger. See Pruitt v. Mote
, 503 F.3d 647 (7th Cir. 2007) (en banc). The judgment is vacated, and the case is remanded for further proceedings. In light of this disposition, neither the suit nor the appe al counts as a “strike” under 28 U.S.C. §1915(g).