## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 27 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DARREN EUGENE PERKINS,

Plaintiff-Appellant,

v. KANSAS DEPARTMENT OF CORRECTIONS; LES DERSTEIN, Unit Manager, El Dorado Correctional Facility; MICHAEL A. NELSON, Warden, El Dorado Correctional Facility; WILLIAM CUMMINGS, Risk Manager, El Dorado Correctional Facility; CHARLES SIMMONS, Secretary of Corrections, El Dorado Correctional Facility; PRISON HEALTH SERVICES; (NFN) AYENI, Regional Medical Director for the Kansas Department of Corrections,

Defendants-Appellees. No. 98-3005

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 97-CV-3460)

Submitted on the briefs: Darren Eugene Perkins, pro se.1 “HIV” stands for human immunodeficiency virus, whic h can cause acquired

immunodeficiency syndrome (“AIDS”), a “secondary im munodeficiency syndrome . . . characterized by opportunistic infections, ma lignancies, neurologic dysfunction, and a variety of other syndromes.” The Merck Manual of Diagnosis and Therapy 77 (Robert Berkow, M.D. et al. eds., 16th ed. 1992 ).

2 Although it appears that plaintiff actually filed two separate complaints on the same day, the district court assigned both of t hem the same case number and treated them as though they were a single action. Therefore, we will consider plaintiff’s allegations in the two documents and attachments as a single, integrated complaint. -2- Hsingkan Chiang, Assistant Attorney General, Topeka , Kansas, for Defendants-Appellees.

Before PORFILIO , BARRETT , KELLY , Circuit Judges.

PORFILIO , Circuit Judge.

Plaintiff, a pro se prisoner who is HIV positive, 1 appeals the district court’s dismissal of his civil rights action 2 seeking redress for (1) being required to wear a face mask whenever he leaves his cell; (2) being denied all outdoor exercise for more than nine months; and (3) being denied treatme nt for his serious medical condition. The district court granted plaintiff le ave to proceed informa pauperis under 28 U.S.C. § 1915. Thereafter, the court sua sponte dismissed the action pursuant to § 1915(e)(2)(B)(ii), concluding that th e complaint failed to state a claim upon which relief can be granted. The dismis sal occurred before the3 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is therefore ordered submitted without oral argument. -3- complaint was served on defendants. Our jurisdicti on over this appeal arises under 28 U.S.C. § 1291. 3
I. Standard of Review. At the outset, we must determine the appropriate st andard under which to review the district court’s dismissal. Section 191 5(e)(2)(B)(ii), which was added to the statute as part of the Prison Litigation Ref orm Act of 1996 (“PLRA”), Pub. L. No. 104-134, §§ 801-10, 110 Stat. 1321, pro vides that “the court shall dismiss the case at any time if the court determine s that . . . the action or appeal . . . fails to state a claim upon which relief can be granted.” This language parallels that of Federal Rule of Civil Procedure 1 2(b)(6). We have traditionally applied a de novo standard of review to dismissals made under Rule 12(b)(6). See, e.g. , Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 854 (10th Cir. 1996). We agree with our sister circuits that a similar de no vo standard should govern review of dismissals under § 1915(e)(2)(B)(ii). See Barren v. Harrington , 152 F.3d 1193, 1194 (9th Cir. 1998), pet’n for cert. filed , (U.S. Nov. 17, 1998) (No. 98-7214); Black v. Warren , 134 F.3d 732, 733 (5th Cir. 1998); Mitchell v. Farcass , 112 F.3d 1483, 1489-90 (11th Cir. 1997); McGore v. Wrigglesworth , 114 F.3d 601, 604-4-

(6th Cir. 1997); Atkinson v. Bohn , 91 F.3d 1127, 1128 (8th Cir. 1996). Therefore, we will review the present dismissal de novo. Dismissal of a pro se complaint for failure to stat e a claim is proper only where it is obvious that the plaintiff cannot preva il on the facts he has alleged and it would be futile to give him an opportunity to amend. See Whitney v. New Mexico , 113 F.3d 1170, 1173 (10th Cir. 1997). In determi ning whether dismissal is proper, we must accept the allegations of the co mplaint as true and we must construe those allegations, and any reasonable infe rences that might be drawn from them, in the light most favorable to the plaintiff. See Breidenbach v. Bolish , 126 F.3d 1288, 1292 (10th Cir. 1997). Further, we must liberally construe the allegations of a pro se complaint. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). Because we conclude that the district court prematurely dismissed certain of plaintiff’s claims, we affirm in part, reverse i n part, and remand for further proceedings. II. Factual Background. Plaintiff, who alleges that he has had AIDS since S eptember 1993, has been housed in administrative segregation at the state p rison in El Dorado, Kansas, during all times pertinent to this action. The bul k of plaintiff’s claims arise out of an incident that occurred on January 27, 1997. On that day, plaintiff became angry with two prison guards and then spat on them when he went outside into the4 In his February 1998 appellate brief, plaintiff ind icated these restrictions

were still in effect, and appellees did not dispute this representation in their response brief.

5 Plaintiff alleges that he caught pneumonia in Febru ary 1997 and since that time has been plagued with respiratory infections, weakness, shortness of breath, and fevers. -5- prison yard. Since then, plaintiff has been requir ed to wear a face mask that covers his entire head whenever he leaves his cell and he has been denied all exercise outside his cell. 4 Plaintiff alleges that having to wear the face maskis demeaning and causes him great emotional and psychological distress, whi ch further weakens his immune system and hastens his death. 5 Plaintiff alleges similar psychological and physical injuries from the denial of outdoor exerci se. He says the only way he can avoid injury arising from the face mask restric tion is to decline to leave his cell--even for showers and medical appointments--wh ich he has done for extended periods of time. Plaintiff contends he had no prior warning of the c onsequences of spitting on a guard and he has never been given a hearing on the face mask and exercise restrictions. He also alleges other inmates who have spat on guards, other inmates, and/or common areas of the prison have nothad to endure similar restrictions. Plaintiff asserts he is being punish ed simply because he is HIV positive. Plaintiff claims the face mask and out-o f-cell exercise restrictions-6-

violate his rights to due process and equal protection, contravene the ex post facto prohibition, and constitute cruel and unusual punis hment. Plaintiff also contends he has been denied treatment for his serious medical needs, in violation of the Eight Amendment, because he has not been treated with a particular drug. Plaintiff concedes that he has received treatment for his HIV, but he contends he will become immune to the drugs with which he is being treated if he is not also given a different drug, c alled a protease inhibitor. The district court explicitly addressed only the du e process and Eighth Amendment aspects of the face mask and exercise res trictions. Noting that prison officials are given great deference in adopting and implementing policies aimed at preserving internal order, discipline, and security , the court concluded the restrictions did not give rise to a due process cla im because they were imposed “in direct response to an incident of disruptive co nduct for which plaintiff accepts responsibility, and the restrictions are reasonablyrelated to the legitimate goal of maintaining order and security.” R., Doc. 3 at 3 (citing Bell v. Wolfish , 441 U.S. 520, 547 (1979)). The court also concluded these restrictions did notgive rise to an Eighth Amendment claim because plaintiff did not establishthat prison officials acted with deliberate indifference to his health or safety. See Wilson v. Seiter , 501 U.S. 294, 303 (1991) (adopting deliberate indiffere nce as standard for subjective-7-

component of Eighth Amendment claims based on condi tions of confinement). Specifically, the court determined that plaintiff’s claim failed because he “show[ed] no excessive risk to his well-being, [andthere was no] evidence to reasonably suggest defendants acted without regard to plaintiff’s circumstances.” R., Doc. 3 at 3. Likewise, the court held plaintiff failed to state an Eighth Amendment claim based on the denial of medical treatment. Th e court concluded plaintiff’s pleadings showed that prison officials recognized h is condition as serious and provided him ongoing medical care for that conditio n; plaintiff simply disagreed with them as to the exact treatment he should recei ve. We will address each of these claims in turn. As an initial matter, howeve r, we must consider the effect of the limitation provisions of 42 U.S.C. § 1997e(e) o n plaintiff’s claims. III. 42 U.S.C. § 1997e(e). Plaintiff filed the present action after the effect ive date of the PLRA, which provides in part that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional f acility, for mental or emotional injury suffered while in custody without a prior sh owing of physical injury.” 42 U.S.C. § 1997e(e). Courts have generally construedthis provision as a limitation on the relief a prisoner can receive for injuries suffered while in custody. See,
e.g. , Zehner v. Trigg , 133 F.3d 459, 463 (7th Cir. 1997) (“§ 1997e(e) on ly limits6 The plain language of § 1997e(e) applies only to ac tions “for mental or

emotional injury.” While a claim for compensatory damages would clearly be (continued...) -8- the relief to which plaintiffs are entitled; it doe s not restrict their access to the courts to press claims for which the substantive law provides an underpinning”). Therefore, although “mental and emotional distress can constitute a compensable injury in suits for damages under 42 U.S.C. § 1983 based upon violations of constitutional rights[, § 1997e(e) provides] that s uch a suit cannot stand unless the plaintiff has suffered a physical injury in add ition to mental or emotional harms.” Id. at 461. Here, the primary harm plaintiff alleges as a resul t of both the exercise and the face mask restrictions is mental or emotional. Plaintiff does allege physical harm as well, because he claims his mental anguish has been so severe that it has caused his physical condition to deteriorate and ha s hastened his death. As yet, neither the parties nor the district court have add ressed whether plaintiff’s allegations are sufficient to avoid the limitation contained in § 1997e(e). We, therefore, will leave this issue to the district co urt to decide in the first instance. We note that plaintiff has requested three types of damages in his complaint: compensatory, punitive, and nominal. On remand, th e district court will have to separately determine whether § 1997e(e) prohibits p laintiff’s claims for each of these types of damages. 66 (...continued)

barred in the absence of any showing of physical in jury, it is not clear that a claim for either punitive or nominal damages would also b e barred. Nominal damages, for instance, are available for the violation of ce rtain “absolute” constitutional rights, such as due process, without any showing of actual injury. Carey v. Piphus , 435 U.S. 247, 266 (1978). Thus, one could argue that a claim for nominal damages arising from a due process violation such a s that alleged here is not actually an action “for mental or emotional injury” that would be subject to the limitations of § 1997e(e). See Davis v. District of Columbia , 158 F.3d 1342, 1349 (D.C. Cir. 1998) (noting possibility that § 19 97e(e) would not apply to claim for nominal damages); Wright v. Miller , 973 F. Supp. 390, 396 (S.D.N.Y. 1997) (noting that § 1997e(e) would bar plaintiffs from r ecovering any damages other than nominal ones for alleged due process violation s that caused only mental injury). -9- If, on remand, the district court concludes that pl aintiff’s claims for damages are barred by § 1997e(e), plaintiff may sti ll have an avenue of redress through injunctive relief. Although plaintiff’s co mplaint does not include an express request for injunctive relief, a liberal co nstruction of his allegations demonstrates a clear desire for injunctive relief. Our research reveals that only two circuits have considered whether § 1997e(e) lim its claims for injunctive or declaratory relief, and both have concluded that it does not. See Davis v. District of Columbia , 158 F.3d 1342, 1346 (D.C. Cir. 1998) ; Zehner , 133 F.3d at 462-63. As the D.C. Circuit explained in Davis , “the statute does not materially thwart actions for injunctions or declaratory judgments, f or the simple reason that a plaintiff’s ability to claim such relief is normall y independent of any injury other than the threatened loss of the constitutional right.” 158 F.3d at 1346. We agree-10-

with our sister circuits that § 1997e(e) does not a ffect actions for declaratory or injunctive relief. Therefore, even if the districtcourt determines that plaintiff cannot pursue his damage claims arising from the fa ce mask and exercise restrictions, § 1997e(e) would not bar claims for i njunctive relief relating to those restrictions.
IV. Due Process. “The Fourteenth Amendment prohibits any State from depriving a person of life, liberty, or property without due process of law.” Meachum v. Fano , 427 U.S. 215, 223 (1976). A prisoner’s liberty interests may arise either from the Due Process Clause itself or from state law. See Hewitt v. Helms , 459 U.S. 460, 466 (1983). “The Due Process Clause standing alone offe rs prisoners only a narrow range of protected liberty interests.” Abbott v. McCotter , 13 F.3d 1439, 1442 (10th Cir. 1994) (quotation omitted). State-create d liberty interests, in turn, are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give ri se to protection by the Due Process Clause of its own force, nonetheless impose s 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) (citations omitted). In Sandin , the prisoner contended that the disciplinary hear ing that preceding his placement in disciplinary segregationdid not afford him procedural-11-

due process. Id. at 476. The Court concluded, at the summary judgm ent stage, that the prisoner’s “discipline in segregated confi nement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest” and, therefore, he had no constit utional right to due process in connection with that confinement. Id. at 486. To reach this conclusion, the Court carefully examined the specific conditions of the p risoner’s confinement. The Court determined that the prisoner’s conditions ess entially “mirrored those conditions imposed upon inmates in administrative s egregation and protective custody,” so the prisoner’s “confinement did not ex ceed similar, but totally discretionary, confinement in either duration or degree of restriction.” Id. Based upon its comparison of inmates inside and outside d isciplinary segregation, the Court concluded that the conditions to which the pr isoner was subjected as a result of the allegedly faulty disciplinary hearing were “within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life,” and, therefore, neither the Due Pro cess Clause nor state law afforded the prisoner a protected liberty interest. Id. at 487. Here, the district court did not have evidence befo re it from which it could engage in the analysis required by Sandin and determine whether the conditions of plaintiff’s confinement presented the type of atypi cal, significant deprivation that would implicate a liberty interest. Plaintiff’s al legations, accepted as true,-12-

showed that he is confined in an eight-foot by fourteen-foot concrete cell for twenty-three and one-half hours a day. He is permi tted to leave his cell for thirty minutes each day, to take a shower, but he must wea r the face mask when he is out of his cell. Plaintiff has not been permitted exercise outside his cell for over
a year.Plaintiff contends that no other inmates bear simil ar restrictions, and there is no evidence in the record at present to contradi ct this allegation. On appeal, appellees argue that the conditions of plaintiff’s confinement do not represent an atypical and significant hardship because “[i]t is ordinary for prisoners to be locked down in segregation for various offenses andto be isolated from others due to extreme behavior.” Appellees’ Br. at 5. Th is evidence was not before the district court at the time plaintiff’s claim was di smissed, and, in any event, it does not fully address both the duration and degree of p laintiff’s restrictions as compared with other inmates. See Sandin , 515 U.S. at 486. Based upon our review, we conclude the district court erred in suasponte dismissing plaintiff’s due process claim. V. Eighth Amendment. “The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, prohibi ts the infliction of cruel and unusual punishments on those convicted of crimes.” Wilson , 501 U.S. at 296-977 Appellees characterize plaintiff’s challenge to the face mask restriction as a

challenge to the use of excessive physical force, t o which a different subjective standard would apply. See Hudson , 503 U.S. at 6-7 (“[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishment Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or resto re discipline, or maliciously and sadistically to cause harm.”). We conclude that pl aintiff’s allegations are more accurately categorized as a challenge to the condit ions of his confinement, however, because the face mask restriction is an on going condition and plaintiff does not allege the application of physical force b y prison officials in connection with the mask. -13- (citation and quotation omitted). “Punishments inc ompatible with the evolving standards of decency that mark the progress of a maturing society or involv[ing] the unnecessary and wanton infliction of pain are r epugnant to the Eighth Amendment.” Hudson v. McMillian , 503 U.S. 1, 10 (1992) (quotations omitted) (alteration in original). An Eighth Amendment claim has both an objective component–whether the deprivation is sufficiently serious–and a subjectiv e component–whether the official acted with a sufficiently culpable state of mind. See Wilson , 501 U.S. at 298-99. In cases challenging the conditions of a p risoner’s confinement, the subjective standard is one of deliberate indifferen ce to inmate health or safety.
See Farmer v. Brennan , 511 U.S. 825, 834 (1994). All three of plaintiff’s Eighth Amendment claims challenge the conditions of his co nfinement and, therefore, are analyzed under a deliberate indifference standard. 7-14-

For a prison official to be found liable of deliber ate indifference under the Eighth Amendment, the official must “know[] of and disregard[] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must draw the inference.” Id. at 837. “Whether a prison official had the requis ite knowledge of a substantial risk is a question of fa ct subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a subst antial risk from the very fact that the risk was obvious.” Id. at 842 (citation omitted). With these standards i n mind, we turn to the first of plaintiff’s Eighth Am endment claims, relating to the deprivation of outdoor exercise.
A. Exercise Restriction. As this and other courts have recognized, “some form of regular outdoor exercise is extremely important to the psychologica l and physical well being of inmates.” Bailey v. Shillinger , 828 F.2d 651, 653 (10th Cir. 1987) (citing Spain v. Procunier , 600 F.2d 189, 199 (9th Cir. 1979)); accord Williams v. Greifinger , 97 F.3d 699, 703-05 (2d Cir. 1996) (discussing cont ours of right to out-of-cell exercise); Mitchell v. Rice , 954 F.2d 187, 191 (4th Cir. 1992) (“Generally a prisoner should be permitted some regular out-of-cell exercise.”); Davenport v. DeRobertis , 844 F.2d 1310, 1313 (7th Cir. 1988) (upholding di strict court finding-15-

that allowing inmates in segregation unit only one hour of out-of-cell exercise a week violated Eighth Amendment). “Although we have never expressly held that prisoners have a constitutional right to exercise, there can be no doubt that total denial of exercise for an extended period of time w ould constitute cruel and unusual punishment prohibited by the Eighth Amendment.” Housley v. Dodson , 41 F.3d 597, 599 (10th Cir. 1994). In Housley , we concluded that an inmate who alleged he had re ceived only thirty minutes of out-of-cell exercise in three mon ths stated an Eighth Amendment claim, and we reversed the district court’s dismissal of his action. Id. at 599. In reaching this conclusion, we noted that “[i]n Bailey , we found that even a convicted murderer who had murdered another inmate and represented a major security risk was entitled to outdoor exercise.” Id. In light of our previous holdings, we conclude the district court here erredwhen it held that plaintiff’s allegations about the extended deprivation of outdo or exercise “show[ed] no excessive risk to his well-being.” R. Doc. 3 at 3. Accepting the allegations of plaintiff’s complaint as true, they also establish that prison officials knew of his continu ing deprivation of outdoor exercise. Not only did the officials renew the res triction on a weekly basis, but plaintiff filed prison grievances challenging the r estriction. We conclude that plaintiff’s complaint presents facts from which a f actfinder could infer both that8 As in Housley , “[w]e recognize . . . that what constitutes adequ ate exercise

will depend on the circumstances of each case, incl uding the physical characteristics of the cell and jail and the averag e length of stay of the inmates.” 41 F.3d at 599; see also Mitchell , 954 F.2d at 191-92 (applying a totality of the circumstances analysis to restrictions on out-of-ce ll exercise and noting that “penological considerations may, in certain circums tances, justify restrictions”). Whether unusual circumstances exist to justify the restrictions imposed here, however, cannot be answered at this stage of the litigation. See Mitchell , 954 F.2d at 192. -16- prison officials knew of a substantial risk of harmto plaintiff’s well being resulting from the lengthy denial of outdoor exerci se and that they disregarded that harm. 8 Therefore, the district court erred in sua sponte dismissing plaintiff’s Eighth Amendment claim for deprivation of outdoor e xercise.
B. Face Mask Restriction. Whether plaintiff’s allegations concerning the face mask restriction are sufficient to state an Eighth Amendment claim prese nts a closer question. While our research revealed no cases addressing a similarrestriction, the Seventh Circuit’s opinion in Anderson v. Romero , 72 F.3d 518 (7th Cir. 1995), provides some guidance. We begin with the proposition that “the Eighth Amendment forbids the state to punish people for a physical c ondition, as distinct from acts.” Id. at 526. Thus, prison officials may not punish pla intiff for being an HIV carrier. See id. Further, the infliction of psychological pain can violate the Eighth Amendment. See id. at 523. For example, disseminating “humiliating b ut penologically irrelevant details of a prisoner’s me dical history,” or “branding or-17-

tatooing HIV-positive inmates . . . or making them wear a sign around their neck that read ‘I AM AN AIDS CARRIER!’” may violate the Eighth Amendment. Id. Here, plaintiff alleges that he is forced to wear t he face mask, which covers his entire head, simply as punishment for being HIVpositive. He notes that the face mask restriction does not truly prevent him fr om spitting on inmates or guards, because he has an opportunity to do so every time he takes a shower. Plaintiff further alleges that, despite these opportunities for spitting, he has not spit on anyone since the single incident on January27, 1997. Thus, he contends, the face mask is simply a punishment for his HIV st atus, meant to brand him as an HIV carrier and humiliate him whenever he leaves hi s cell. Plaintiff notes that, in addition to requiring him to wear the face mask, pr ison officials have placed a sign on his cell door warning that he is extremely dangerous. Plaintiff alleges that being subjected to this cons tant humiliation has resulted in extreme mental anguish and has hastenedhis death. Plaintiff further alleges that prison officials knew of the harm theywere inflicting, but disregarded it. Under these circumstances, we conclude the dis trict court erred in dismissing plaintiff’s claim sua sponte without at least order ing defendants to prepare a report pursuant to the guidelines of Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978).
C. Medical Treatment.9 Protease inhibitors are one of three types of drugs used to treat HIV by

interfering with the replication of the virus. Pro tease inhibitors inhibit the action of the enzyme protease, which functions at the end of the HIV replication cycle. The other two types of drugs are nucleosides (such as AZT and 3TC) and non-nucleosides. These drugs inhibit the action of the enzyme reverse transcriptase, which functions at the beginning of the HIV replication cycle. See Martin Markowitz, M.D., Combination Therapy for HIV Infection , (Oct. 1997) <http://www.iapac.org/clinmgt/avtherapies/patient/c ombbk.html#whathiv>. -18- Plaintiff’s final Eighth Amendment claim relates to the medical treatment he has received. Prison officials violate the Eigh th Amendment when they are deliberately indifferent to the serious medical nee ds of prisoners in their custody.
See Estelle v. Gamble , 429 U.S. 97, 104-06 (1976). A negligent failure to provide adequate medical care, even one constitutin g medical malpractice, does not give rise to a constitutional violation. See id. at 105-06. Moreover, a prisoner who merely disagrees with a diagnosis or aprescribed course of treatment does not state a constitutional violation. See id. at 107; Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir.1993). Plaintiff concedes that he has received treatment f or his HIV with two drugs, AZT and 3TC. He claims, however, that the H IV will become immune to those drugs if he is not also given a protease inhibitor. 9 Plaintiff states that he has stopped taking the AZT and 3TC until he can rec eive a protease inhibitor. Our review of plaintiff’s complaint shows that pris on officials have recognized his serious medical condition and are treating it. Plaintiff simply disagrees with10 We will not consider plaintiff’s affidavit requesti ng that we direct the

Kansas Department of Corrections to convert his ind eterminate sentence to a determinate sentence. Plaintiff did not raise this issue in the district court. -19- medical staff about the course of his treatment. T his disagreement does not give rise to a claim for deliberate indifference to seri ous medical needs. Therefore, the district court properly dismissed this Eighth A mendment claim.
VI. Conclusion. Based upon our review, we conclude the district cou rt properly dismissed plaintiff’s Eighth Amendment claim based on the all eged denial of medical treatment. We further conclude, however, that the district court erred in sua sponte dismissing plaintiff’s due process and Eighth Amendment claims based on the alleged exercise and face mask restrictions. T herefore, we must remand these claims to the district court. On remand, the distr ict court should determine whether § 1997e(e) precludes plaintiff from pursuin g claims for damages arising from these restrictions. The court also should add ress plaintiff’s ex post facto and equal protection claims, which it did not consi der initially. Accordingly, the judgment of the United States District Court for the District of Kansas is AFFIRMED in part, and REVERSE D in part, and the case is REMANDED for further proceedings consistent with this opinion. 10