UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31371 Summary Calendar

FREDDIE RAY LEWIS,

Plaintiff-Appellant,

versus

CHRIS SMITH, III, ET AL.,

Defendants,

H. JAMES, Lieutenant; BOLGER, Sergeant; PRUITT, Patrolman; K. NOBLE, Lieutenant; COOPER, Patrolman; BOBBY D. HICKMAN; R. ALLEN, Patrolman; S. DESMOND, Patrolman; CITY OF LEESVILLE,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (97-CV-1420) _________________________________________________________________ November 13, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Concerning Freddie Lewis’

action arising out

of his confinement for approximately 600 days in the City of

Leesville jail, partial summary judgment was granted Defendants on

numerous issues, with a jury trial held on the remainder. At the

close of Lewis’ case, judgment as a matter of law was granted to

several Defendants. The jury returned a verdict for the remaining

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Defendants. Lewis’ timely motion for judgment as a matter of law

concerning claimed unconstitutional confinement was denied.

Lewis appeals the adverse summary judgment on three of his

claims; the exclusion of expert testimony; and the denial of his

motion for judgment as a matter of law on the issue of

unconstitutional conditions of confinement.

Concerning the summary judgment on the issues of denial of

physical exercise, denial of access to the courts, and denial of

due process, the ruling is reviewed de novo, applying the same test

as the district court. E.g., Skotak v. Tenneco Resins, Inc.,

(5th Cir.), cert. denied,

(1992).

“Summary judgment is proper ‘if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to [a] judgment

as a matter of law.’” Id. (quoting FED. R. CIV. P. 56(c)).

For the denial of the right to exercise claim, Lewis contends

he was unconstitutionally denied that right because the ability to

exercise was contingent upon trustee status, which he refused.

Deprivation of exercise is not a per se constitutional violation;

an extended deprivation of exercise opportunities, however, may

violate an inmate's right not to be subjected to cruel and unusual

punishment. Miller v. Carson,

, 751 n.12 (5th Cir.

1977)(deprivation of exercise not a per se constitutional violation

but “may constitute an impairment of health forbidden under the

eighth amendment”); see also Stewart v. Winter,

, 336

n.19 (5th Cir. 1982) (failure to provide recreation program does

2 not, by itself, constitute cruel and unusual punishment). To

succeed on an Eighth Amendment claim that he was denied adequate

recreation, Lewis must establish: (1) that prison officials failed

to provide him with adequate exercise opportunities, see Ruiz v.

Estelle,

(5th Cir.)(“Courts have frequently

stated that confinement of inmates for long periods of time without

opportunity for regular physical exercise constitutes cruel and

unusual punishment.”), modified,

(5th Cir. 1982),

cert. denied,

(1983); see also Miller,

(“inmates must be allowed reasonable recreational

facilities”)(internal quotation marks omitted); and (2) that prison

officials acted with deliberate indifference to a substantial risk

of harm to his health and safety, see Farmer v. Brennan,

(1994)(“A prison official’s deliberate indifference to a

substantial risk of serious harm to an inmate violates the Eighth

Amendment.”)(internal quotation marks omitted); Herman v. Holiday,

(5th Cir. 2001) (requiring showing of deliberate

indifference to establish Eighth Amendment claim for unhealthful

conditions at detention center).

This claim is meritless because it is premised on the

erroneous assumption that Lewis had an absolute right to exercise

or recreation. As discussed, what is constitutionally required,

however, is that he not be confined for long periods without the

opportunity for regular physical exercise. See Ruiz,

. He concedes he was provided the opportunity for outside

recreation/exercise when he was offered trustee status; he refused

that status, however, because he did not want to work for the city.

3 The opportunity for exercise was afforded; any deprivation was

self-imposed.

Applying the same logic used in his exercise claim, Lewis

contends he was denied his right to access to the courts because

prisoners’ use of the city’s public library was also conditioned

upon trustee status. A prisoner must allege a deliberate denial of

his right of access to the courts to allege the deprivation of a

substantive constitutional right, Jackson v. Procunier,

(5th Cir. 1986); and he may not prevail on such claim

unless he demonstrates prejudice. McDonald v. Steward,

(5th Cir. 1998).

Lewis’ claim is meritless because he has not established that

Defendants deliberately denied him use of the public library. Had

he accepted the offer of trustee status, he could have used the

public library’s legal materials.

Lewis challenges the summary judgment against his claim his

due process rights were denied when he was placed several times in

“isolation” without being afforded a hearing. To bring a

procedural due process claim under § 1983, Lewis must: identify a

protected liberty interest; and then prove governmental action

resulted in a deprivation of that interest. San Jacinto Sav. &

Loan v. Kacal,

(5th Cir. 1991). Administrative

segregation does not constitute a deprivation of a constitutionally

cognizable liberty interest. Pichardo v. Kinker,

(5th Cir. 1996).

Lewis uses the term “isolation” loosely, implying he was

placed in solitary confinement. The district court, however, ruled

4 that Lewis had been placed in administrative segregation, not

isolation, and that ruling is supported by the record. The cell

where he was placed was several feet from the main population,

allowing Lewis to converse with other inmates, and the cell was

identical to the others in the jail with the exception that it did

not have a telephone. Lewis does not challenge that ruling on

appeal. Lewis has not shown error.

Lewis contests the exclusion at trial of the expert testimony

of Dr. Sechrest. A ruling on the admissibility of expert testimony

is reviewed for an abuse of discretion. United States v.

Alexander,

(5th Cir. 1987), cert. denied,

(1990); see FED. R. EVID. 702. Lewis has not identified

any facts to which Dr. Sechrest would have testified that would not

have been within the common knowledge of the jury. His contention

is devoid of an explanation of how Dr. Sechrest’s proposed

testimony concerning American Correctional Association standards

would have been relevant to the Leesville City Jail and this

litigation. He has, therefore, not demonstrated an abuse of

discretion.

Finally, Lewis challenges the denial of his motion for

judgment as a matter of law on the issue of unconstitutional

conditions of confinement. The denial of a motion for judgment as

a matter of law is reviewed de novo. Logan v. Burgers Ozark

Country Cured Hams Inc.,

(5th Cir. 2001). Such

judgment is appropriate only if the evidence, viewed in the

nonmoving party’s favor, points but one way and is not susceptible

5 to reasonable inferences which may support the nonmovant’s

position.

Lewis contends that the totality of the evidence showed he was

in isolation anywhere from 180 to 310 days of his confinement. His

deposition testimony, which was offered at trial because Lewis was

unavailable to testify, supports a finding that his time spent in

isolation was not continuous. The evidence was open to reasonable

inferences that supported Defendants’ position.

AFFIRMED

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