Edward Joseph X. Chapman v. George W. Pickett, Warden, U.S. Penitentiary, Marion, Defendants

“crucial,” “necessary” why nothing are not opinion this is intended to cast computerized of a document-retrieval costs doubt on the propriety lumping costs in system, paralegals, or of or for that matter attorney’s fees where there is an at- attorneys? What would be left of the torney’s fee-shifting play, statute in that is rule,” ex whereby “American with narrow not an issue we need today. resolve We ceptions winning party must bear the mention it to make clear that it re- See, expense of his side of the lawsuit? open. mains e.g., Coyne-Delaney Capital Devel Co. The order on costs is reversed and the opment Bd., 717 case remanded to redetermine them in ac- 1983). major If inroads into the such opinion. cordance with this Rule 18 shall made as American rule are to be SGE not apply on remand. case, they will have advocates to be and Reversed Remanded with Di- by the that decided made Court Henkel rections. strongly —and that reaffirmed the Ameri Pipeline

can rule in Alyeska Service Co. v. Soc’y,

The Wilderness (1975) not —and

by us. however, ruling, speaks only

Our present,

cases such as the where no statute attorney’s

authorizes the award of fees to explained winning party. by Judge As CHAPMAN, Joseph Edward X. Champion Rubin in his dissent in the Int’l case, Plaintiff-Appellee, paradox there is an element of allowing the winner to recover his attor- ney’s fees, expert-witness fees not but see George PICKETT, Warden, W. 1181-93; held, we as Marion, Penitentiary, al., et courts, Judge have other cited in Rubin’s Defendants-Appellants. dissent, attorney’s fee to which fee-shifting such refer statutes “includes 84-2842, Nos. 84-2913. out-of-pocket expenses in preparation for Appeals, United States Court of Webermeier, trial.” Henry v. Seventh Circuit. (7th Cir.1984). Henry did not fees, however, expert-witness involve Argued March 1986. their mention in Heiar v. Coun- Crawford Sept. Decided 1986. (7th Cir.1984), ty, 746 F.2d as an Sept. As Amended preparatory expenses illustration attorney’s that are to be assimilated to fees attorney’s fee-shifting cases where an applicable, True,

statute is is dictum. attorney’s might assimilate fees costs to

go against purpose fee-shifting of a

statute. (Compare Equal Access to Act,

Justice explicitly which includes ex-

pert-witness among expenses fees prevailing

shifted to party when the applies, 2412(d)(2)(A).)

Act see 28 U.S.C. § might

And it also cause inefficient substitu- lawyers

tions: would have an incentive to witnesses,

undertake expert tasks that

paralegals, might and secretaries be able to

perform cheaper. better and But while Lewis, Atty., Springfield,

James A. Ill., defendants-appellants. Anderson,

David Northwestern Universi- Clinic, Ill., Legal Chicago, plaintiff- ty appellee. CUMMINGS, Judge,

Before Chief CU- EASTERBROOK, DAHY and Circuit Judges.

CUDAHY, Judge. Circuit religious grounds After plaintiff, pris- рork trays, clean off food Marion, penitentiary in oner at the federal Illinois, segregated confine- was held He ment for nine months. filed suit con- (cid:127) tending was excessive. appeals, trials and After numerous that defendants —officials court determined plaintiff’s violated —had remand, rights. On for the district court Central District individually Illinois found defendants liable $7,000. plaintiff appeal Defendants finding of the size of the award and the liability. cross-appeals Plaintiff individual arguing that it is too small—as the award — grant as the district court’s failure to well damages. punitive We affirm. Joseph X.

Edward was convict- On October Adjustment robbery ed in 1969 of armed and sentenced Committee report met on Brown’s and con- years prison. originally to 20 He was cluded that should placed penitentiary at the federal detained Lew- segregated confinement for an indeter- isburg, Pennsylvania, Leavenworth, then at period. Thereafter, minate Chapman’s sta- Kansas, being before transferred to the segregated tus in confinement was re- Penitentiary Mаrion on October 1972. regularly. point, viewed At one he wrote 9,1972, Chapman On assigned October was George Warden W. requested Pickett and removing to kitchen detail. This included immediate explanation release and an of trays carts cleaning from food and off the why in segregation. he was inquiry This trays pork carts. Because food had on not 15, 1973, was answered. On March them, plaintiff, a devout Black Muslim copy Warden Pickett received a of a letter any handling whose faith forbids pork, dated March 1973 from the Director of perform refused task. James E. Prisons, Federal Bureau of Norman A. Brown, supervising officer, warned Carlson, in which the director told Con- Chapman that if he did complete not his gressman Rangel Charles prisoners assignment he disciplinary would receive a should assigned not be involving details Chapman citation. still refused and told handling pork if religious their be- person Brown that the last who had writ- liefs Despite letter, forbade it. Chap- this disciplinary report ten him on had been man segregated. remained Hе was re- “blown out of an oven” at Leavenworth general turned to population July two months earlier.1 spending after days segre- report prison’s Brown filed a with the gation. Adjustment Committee under Prison Code in segregation, Chapman While had no 303, charging Chapman section with “fail- social contact with other Many inmates. ing perform work as instructed su- religious materials were confiscated pervisor.” report This Chapman’s noted and he had opportunity no to attend reli- religious grounds to work. gious services. While gen- in the report also Chapman’s mentioned re- population eral were allowed out of their incident, mark about the Leavenworth al- up cells day, to 12 hours Chapman was though Chapman charged was not only allowed out for exercise a few times threatening day, an officer. That same an each week and then only for 15 to min- investigation by a member of Adjust- ute intervals. He was unable to bathe as ment Committee Chapman concluded that frequently as general those in the popula- generally good had a attitude and noted tion, request was unable food that com- Chapman had prisoner found another plied religious with his dietary restrictions, pork to remove the and had afterwards and training. received no vocational completed Chapman the task. per- also formed his kitchen tasks following initially two He filed April suit in Af- 1973. days without incident. litigation,2 ter much Chap- court found fact, employee 1. In allegations was involved in an complaint oven in his and that his Leavenworth, accident at mandatory but injunction Marion officials claim for a was moot Chapman were suspected already aware that seg- because he had been released from regation. appeal, involvement in the incident. On this circuit affirmed the mandatory injunction ordering denial of a re- Chapman originally sought declaratory and lease but reversed the dismissal of claims for injunctive damages, relief alleging damages viola- declaratory pro- and for certain rights Kleindiеnst, tions of his under the hibitory first Chapman amendment’s relief. clause, free exercise the fifth amendment's due F.2d 1246 The court held that process pro- clause and Chapman prima amendment’s had made a facie case for a against punishment. violation, hibition cruel and unusual first amendment that he had received witnesses, hearing After procedural process two the dis- due and that the district judgment trict court entered terminating testimony. defendants on court had erred in grounds Chapman prove failed to Chapman’s court made no determination on Chapman’s to have evidence of threat should man’s by his extended confinement assessing been violated considered in the reasonableness Pickett, segregation. Chapman 586 of his confinement. Defendants also con- Cir.1978). The case was then F.2d 22 tend that should held not be individu- court for determi- remanded to the district ally Chapman cross-appeals liable. con- responsible who was nation of tending damages that the award of actual violation, the vio- eighth amendment when light length was too small in of his began damages lation and what claiming confinement and that his treat- receive.3 should punitive damages. ment warranted segre- court determined that The district one week

gating for more than I. impermissible. for failure to work was argue Defendants first wrongful segre- prior awards for Based on not entitled to more than nominal gation, the district court determined because, wrongfully even if he was con- $7,000. The court receive Chapman should religious fined for to work on of the that the three members determined grounds, his comment that the last man Committee, Culley, E.M. Adjustment Jack report disciplinary who had written a individually Cage Earl Buzzard were provid- him had been blown out of an oven determination they made the liable because long-term ed a reasonable basis for his segregated for an Chapman that should be Deputy segregation. period. The court found Defendants note that this indefinite Frey approving Fred liable for this report Warden comment was Officer Brown’s also sentence. The court by Chapman indeterminate and was admitted before the liable, based on the found Warden Pickett Chapman Adjustment Committee. As stipulated. he had specific facts to which confined in a maximum an armed robber having authority admitted Pickett contend, security prison, defendants it was Adjustment de- override the Committee’s seriously to take his comment reasonable knowing He admitted termination. supervision keep him under stricter plaintiff’s confinement after October Thus, days. Carey Piphus, under 289 1972. He also knew of Norman Carlson’s 55 L.Ed.2d 252 stating not be letter should individuals (1978) damages are holds that —which of their forced to handle meat violation deprivation of a recoverable when religious beliefs. á constitu- not have occurred absent would plaintiff ‍​​‌‌‌​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​‌‌​​​​​​‌‌​​​‌‍Chap- court not award conclude that The district did tional violation— damages, finding that the officers punitive is entitled to no more than nominal man and that had not acted with malice damages. Chapman had

legitimately believed that argument, defend raising In Defendants threatened Officer Brown. the settled attempt to circumvent law nom- ants appeal the award of more than now In this circuit stated: contending that of this case. damages Chapman, inal inadequacy court determined that 3. On remand the district amendment claim due to light violation existed in case for a new no amendment It remanded the record. Estelle, of Rummel v. 2879, trial. (1979). Chapman v. Pick retrial, quali- the district court ruled On ett, (C.D.Ill.1980). F.Supp. This circuit Chap- defendants from fied shielded reversed, ruling apply did not that Rummel claim. It found that man’s first amendment Pickett, Chapman case. this Cir.1980) pliantiffs eighth were violat- order). (unpublished The court found money damages be- ed but to award refused departed judge district had ap- damages were shown. On cause no actual again remanded for a deter law of the case and finding peal of an this court affirmed the plaintiffs eighth amendment mination of when and the determination amendment violation began dam and a calculation what violation amendment clаim was barred that the first Pickett, ages appropriate. Chapman were immunity. qualified reversed the The court order). (7th Cir.1982) (unpublished F.2d 697 finding no actual had been shown. Chapman’s assert re- Defendants II. concerning supervisor marks at Leav- Granting has suf properly may enworth have been con- damage, fered actual it is appropriate to determining length sidered argument consider his that he should have confinement, Chapman’s though even de- $7,000 received more than compensation fendants admit the Leavenworth investi- injuries. He notes that in certain gation of the oven incident did not raise instances courts have damage overturned suspect. as a If substantially awards that were out of line authorities had charge Chap- wished to with awards in similar cases. See Levka v. threatening

man with another with bodi- City Chicago, 748 F.2d 421 harm, they so; ly was, could have done it 1984) ($50,000 award for victim of unwar fact, separately listed “Prohibited strip excessive); ranted Act” under Prison search reduced as Code 004. No such § made, charge was ever nor was Phillips hear- v. Hunter Community Trail As ing regarding it ever held. Defendant sociation, (7th Cir.1982)($25,- 685 F.2d 184 Pickett did not reply Chapman’s 000 award Housing for victim of Fair Act request explanation for a formal of his excessive). violation reduced as Plaintiff confinement. The mere fact that the re- points out that he approximately received mark report was listed in the violation per day injuries $25 for his while other investigator’s report and the is not suffi- wrongful victims having cient. Not been communicated to sometimes received more. Mary See & decision, ground as a for the Ramsden, Crystal v. 635 F.2d 590 may properly justify- be relied on as Cir.1980)($80per day damages juveniles to ing seg- of indeterminate confined); who were wrongfully United regation. Oswald, States ex rel. Larkins v. 510 F.2d Pickett, Chapman v. 586 F.2d 28 n. 4 (2d Cir.1975)($80 per day 584 damages (7th Cir.1978). Never the nine months of segregated prisoner subjected who was his did of the defendants strip probing search and of his anal profess that the remark was the reason for cavity); Mason, Maxwell v. 668 F.2d 361 Chapman’s being penalized. Moreover, the (8th Cir.1981) ($100 per day wrongful for Chapman officials knew that was not sus- cоnfinement). solitary detention in pected causing any of employ- harm to the ee at Leavenworth. We can conclude judge sitting The district as factfinder that Chapman punished solely was for the has assessing damages. broad discretion in charged failing offense he was with— Benson, See Saxner v. 727 F.2d 672- perform supervi- work as instructed his (7th Cir.1984) (“In 73 general view of the Adjustment sor. As the Committee ex- appellate restrictions on review of jury’s plained Report in its Committee Action monetary damages award of we will not October 1972: judgment substitute our in these circum The inmate stated that he has a Muslim judge jury stances for that of the who always order and that he follows them to testimony.”), heard the sub nom. aff'd being the letter. It forbids one from Saxner, Cleavinger -, pork around much less touch or eat. It S.Ct. Phillips is way. Allah’s that he Now our Association, Hunter Trail Community house he will do as he is told. findings 685 F.2d at 191. His will not be Appendix Plaintiff-Appellee, Cross-Ap- overturned unless found clearly to be erro pellant at A-28. As a result this deter- neous. Plaintiff contends that the decisiоn mination, Chapman kept in was iso- virtual clearly here was erroneous because some lation for nine months with severe restric- received more than four tions on mobility daily routine. We per day greater say cannot times than what did not suffer he re actual damage. ceived. always point

An cases individual can Wade, others.” Smith v. say 30, 56, 103 in which others received more and that U.S. accept argu- little.

he received too To (1983). Here, the district court found say ment is to that a court must match the though even good defendants’ faith elsewhere, generous most offer made plaintiff belief that had threatened an offi though the circumstances of the case be- cer was not a basis for segregating Chap may though fore it be different and even it man, provide it did grounds denying may higher be the awards that less accu- punitive damages. The award punitive rately damages. reflect actual In cases of damages is also within the sound discretion wrongful segregation, one at least other judge of the distriсt and his finding will not court awarded sums to victims of be disturbed. wrongful segregation similar to what Johnson, Riley received. See IV. (E.D.Mich.1981)($25 F.Supp. appeal final issue raised on

per day). While some courts have awarded may whether defendants personally be held amounts, larger may have been due to plaintiffs plaintiff liable A damage.4 present Chapman’s factors not case. may personal establish responsibility “if plaintiffs in example, Mary For & the official acts or fails to act with a delib Crystal juveniles. v. Ramsden were erate disregard plaintiff’s or reckless plaintiff States ex rel. Larkins v. United rights, constitutional or if the conduct caus Oswald marched naked to his cell and was ing the deprivation constitutional occurs at subjected strip probing to a search and the her knowledge direction or with her cavity. judge of his anal The district was Lash, consent.” Crowder v. aware of these cases when he calculated (7th Cir.1982); Faulkner, Wellman say his award. We cannot he abused his This test discretion. clearly satisfied as to thе three mem III. Adjustment bers of the Committee and As Frey. sociate Warden The members of the punitive also seeks dam Adjustment Committee made the initial de ages. A punitive court award dam plaintiff termination that ages should be con “when the defendant’s conduct segregation. They repeatedly fined to met by shown to be motivated evil motive and intent, during segregation his or when it involves reckless or cal time to review his federally protected lous indifference to the in position plaintiff case. While to return 4. Defendants claim they should be immune to be cruel and unusual. Weems v. United 349, States, 544, 549, liability. They initially argued they from 217 U.S. [30 absolutely liability were immune but this from L.Ed. 793]. argument Supreme Fortaleza, was foreclosed American Intern. Ins. Co. v. VesselSS Saxner, Cleavinger 22, Court's decision in Since that time -, (1985), Supreme Court decided has Harlow v. Fitz- ‍​​‌‌‌​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​‌‌​​​​​​‌‌​​​‌‍prison disciplinary members of re- gerald, committees 457 U.S. only qualified immunity. ceive and not absolute objective That case articulated an they The defendants now claim should receive determining quаlified immunity. standard for qualified immunity liability for violations “government perform- Under that test officials plaintiffs eighth rights. They of ing discretionary generally functions are shield- qualified immunity argument did not advance liability ed from for civil insofar as before the district court in this case. In clearly their conduct does not violate estab- rejected qualified this circuit defendants’ immu- statutory lished or constitutional of which nity argument and concluded: person a reasonable would have known.” Id. at 818, 102 S.Ct. at 2738. We do not believe that There can no serious contention with changes right Harlow the 1978 result. In 1972 it was dispropor- fact that the to be free from segre- punishment punishment long ‘clearly established that excessive tionate been es- gated religious early confinement for the exercise of a tablished.’ At least as as the Su- subject liability. preme precept Court declared it to be ‘a of could officials to Harris, justice’ Bryant See Cir.1972). for crime must be offenses, proportioned to the lest it be found general prison populаtion, they kept required is not that a constitutional segregation

him in for nine months. Asso- deprivation supervi- exists but also that the Frey participated many ciate Warden personal sor’s is necessary action to set it meetings concerning Chapman’s con- right. position supervisor, In finement. his as he requisite knowledge power plaintiffs present had the to correct

too in this case. wrongful stipulated confinement. similar cir- Warden Under Pickett per- knowing cumstances we found the of Chapman’s Crowder confinement and do responsibility requirement ing nothing it, sonal had been about after he received met: a letter from the Director of Prisons—Pick supervisor. ett’s own presented by stipulated

The evidence He Crowder indi- before the district court cated both Moore and Devero sat as disciplinary members of the committee among his duties was to see that and, thus, participated directly in the discipline was prison; maintained at the “disciplinary hearings” by which Crow- that as chief officer of thе Mr. repeatedly der was sentenced to confine- authority had the to override Picket[t] ment in the In D.O. seclusion unit. addi- prison; decisions of officers at tion, Crowder testified that Moore and that Mr. was aware of Plain- Picket[t] directly responsible Devero were for de- placement tiff’s on Octo- nying requests legal assistance ber 1972 and that he was continued materials_ Moreover, legal be- 25, 1973; and confined July there until personally cause Moore and Devero were that on March 1973 Mr. re- Picket[t] reviewing accountable for the status of copy ceived a of a letter from Norman A. seclusion, inmates held in D.O. Carlson, Director, Federal Bureau of properly could be held liable Representative Prisons to Charles Ran- if, amendment violation gel. indicated, The letter ... “We have time, Crowder’s continued confinement in your January letter 1973 concern- unlawfully dispro- D.O. seclusion became ing Chapman. your Mr. Edward In let- portionate to pris- the seriousness of his exception your ter we take statement on infractions. January that men of the 687 F.2d at 1006. Black Muslim facility Faith at our were personal Warden liability Pickett’s assigned handling pork. the task of We presents question. a more difficult Courts reviewed the situation and have commu- exacting establishing standards for department nicated to the heads of the supervisory personal liability officials’ assign not to instructions individuals to supervisors hesitate to respon- saddle details where must pork work with sibility for decisions they did not make. against as it is religious their beliefs.” points dissent to cases that have not Transcripts Proceeding Before District met exacting these apparent- standards and Court, Nov. 1976 at 95. ly “supervisory concludes that officials are Pickett was the official Marion to re- not failing liable for to intervene to amelio- communication, ceive Director Carlson’s things.” However, rate the law does not put which should have him on notice that supervisors accord sweeping such freedom Chapman wrongfully segregated. Rather, frоm liability. established law placed position While that him in the best holds that under certain circumstances su- deprivation to know that a pervisors constitutional may personally for fail- be liable had occurred and ing while he had the authori- knowledge to act when of a situation, ty remedy nothing. he did deprivation. constitutional See Crowder v. Lash, 1006; segregated remained in McKinnon v. confine- Cf. (7th City ment Berwyn, 750 F.2d for more than four more months. Cir.1984) circumstances, (failing supervise subordinates Under these the district may actionable). knowledge be that is court was entitled to find Warden Pickett say sive” for the offense of to handle and we cannot personally liable pork panel in the clearly erroneous.5 kitchen. The both found disposition was a violation of the amendment and foregoing judgment For the reasons rejected the immunity, defendants’ claim of is Affirmed. the court below stating: early “At least as as Supreme precept Court declared it to be ‘a EASTERBROOK, Judge, dissent- Circuit justice’ punishment for crime must ing. offense, proрortioned be lest turned first amendment case has This found to be cruel and unusual. Weems eighth amendment one because of into an States, 349, 367, United U.S. 30 S.Ct. holding in 1978 that the defend the court’s being 54 L.Ed. 793 This qualified immunity from dam ants have so, question becomes defend- whether Chapman on account of ages punishing ants ‘knew or should have known’ that F.2d 25-26. religious beliefs. 586 segrega- their confinement of public may officials to which The extent grossly disproportion- tion was or became religious beliefs accommodate sincere must ate to the offense with which he had been cases that are produced a series of charged. question But this almost answers apply. These cases hard to reconcile and itself, point if a time can be deter- deeply. E.g., Bowen v. the Justices divide mined when the became so ser- — -, Roy, disproportionate iously as to violate the L.Ed.2d 735 Goldman Wein Amendment, Eighth point at that same de- -, berger, pun- fendants ‘should have known’ that the (1986). See also Caldwell v. Thus, grossly ishment was excessive. ... Miller, Cir. immunity qualified the defense of official McConnell, 1986); Michael W. Accommo damages arising out of not available Sup.Ct.Rev. A Religion, 1985 dation of Chapman’s Eighth Amendment claim.” accommo humane administration 586 F.2d at 28-29. assigning religious jobs, when dates beliefs does, of Prisons now but it as the Bureau components of this decision are Several I clear in 1972 that it had to. do was not “excessively long” untenable. One is that today, given cases such not think it is clear separation general population from the of a prisoner the fact that a as Goldman and A prison violates the amendment. military more like member of the than of general is that the enunciation of a second society. Madyun free See also v. Fran punishment fit the as “let the —such zen, sort of clear articulation crime”—is the immunity This of the de establishes dissipates immunity. A third is that fendants from under first general right applied by 1973 this had been amendment. discipline. A fourth is that offi- apply to violations claim cial does This left for decision 1978 the amendment. is “exces- that nine months court, plain particulars there is error of law in an attack late unless 5. The dissent is in all other Pickett, decision.’’’) Nagano original (quoting F.2d 22 Kaku 1978). by points (7th Cir.1954)). Brownell, raised the dissent None of the immunity arguments) (apart has been extremely The law of the case doctrine has very argued by government here for the others, persuasive rationale in this case as in that, except good under rare circum reason hardly imagine a matter more and one can stances, panel not over of this court one potential fraught than re- with Pandora’s Box panel. another See rule a result reached by prior panels opening judgments the reached 876, Cir.), Maier, (7th 728 F.2d 880 Devines v. "change in the same case. The of law" rationale 836, 130, denied, 105 S.Ct. cert. L.Ed.2d 71 extraordinary ex- offered the dissent for its (1984); Appleton Electric Co. v. us, ploration seems to under of closed matters 603, Line, Inc., (7th 635 F.2d Graves Truck case, sec- circumstances of this a license to the Cir.1980) ("we long held that ‘matters de ond-guess, apply hindsight, number of appеal the law of the case to cided on become decisions of this court. otherwise settled appeal, appel- in the ... on second followed majority does not Weems, discuss these hold 1. panel which the cited in 1978 ings, judgment depends, proposition on which its for the punish “excessive” forbidden, ments though are the defendants was pris maintain that the a case about conditions, on life at chains, hard labor in immunity holding in 1978 is incorrect and rather than about the duration of confine light in should be reviewed of more recent ment alone. The applications other of the rely My cases. brethren on the law of the eighth amendment to also are panel case.1 It is unwise one to undo about conditions—about the amount of the work of another in the same case. Liti space prisoner has, a about the quality of gants able to panels should be assume that food, the care, about medical about free they of this court are alike. Otherwise will dom injury. E.g., Albers, Whitley v. (and ours) spend their time trying to con -,U.S. 1078, 106 S.Ct. panel vince each upset follow or the last (1986); Rhodes v. Chapman, 452 U.S. decision. The law of the case is a salutary 337, (1981); judge doctrine even when a believes that an Caldwell, 600-01; Duckworth wrong. earlier decision is Yet the doctrine Franzen, (7th Cir.1986); 780 F.2d 645 exceptions, the important being most Owens, French (7th 777 F.2d 1250 Cir. intervening changes in the law. See 1985). Chapman If had been sent to a ‍​​‌‌‌​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​‌‌​​​​​​‌‌​​​‌‍California, Arizona v. 460 U.S. 618- hellhole, he would have a claim under the 19 & n. 1391 & n. 75 eighth segregation amendment. But at Cameo Convalescent Marion is not Many prisoners infernal. Center, Percy, Inc. stay longer a lot than nine months in Mari Cir.1986); (7th Chicago North & Western Unit, on’s Control Chap which is worse. States, Transportation Co. v. United 574 man does not contend that the conditions of also, e.g., See segregation independently violated the Maier, Devines Constitution. 1984) (discussing exception an for clear er decision, usually in the earlier error that ror If the segregation conditions of at Mari- intervening “clear” because of de becomes on are within the range, tolerable and if cisions); v. Colt Industries Christianson damages are not appropriate the response Operating Corp., 798 F.2d Chapman put reason segre- (a Cir.1986) “manifestly in decision that is gation we must given assume the hold- —as correct” be reexamined even when ing is not entitled to relief intervening change there has not been of under the first amendment —then the dura- law). Although majority’s opinion ap the tion of was not unconstitu- plies principles that have been estab tional. did not tell case, opinions earlier in this lished officials that he clearing would start appropriate principles to reexamine these dishes. He held to his Every day beliefs. light after of decisions 1978 and few Chapman was in segregation day was a panel earlier decisions that the overlooked which he would have refused to handle portion of that 1978. decision based pork. if So amendment estab- wrong just on the amendment is principle lishes a of proportional length of ought every particular. It not stand. abоut differential treatment within prison, Moreover, majority introduces a new defendants did not transgress against it. error, I end which discuss of this This was no more a violation opinion. amendment than nine months’ confinement requests 1. also contends that the defendants district court with to violate the court issues, preserved preserve appeals' have not these because mandate in order to did not raise them in the district court after the appellate to ask the court to reexamine its They decision must, have done what holdings. earlier litigant pester however. A need not point some ). in grand their incarceration There a of a recalcitrant witness before seg- is no constitutional difference between jury would be. regation general population; pris- and the problem The most with our substantial prisons oners have no entitlement decision, however, assumption is its populations”, “general have as our recent protected prisoner any legally that a sustaining the decision “lockdown” of the enjoying interest in the same conditions of population at prisoners. confinement as other entire Marion more than Caldwell, day did not an extra because of his nine serve months shows. pork. simply handle He had less

refusal to 600-05. pleasant Suppose he had been conditions. panel principles The not did discuss these security pris- from a minimum transferred in 1978. It not cite and did Meachum his refusal to do on to Marion because of Hewitt, similar held a cases. which assigned have been work. His loss would prisoner not have a in- does constitutional greater than the difference between the remaining general popula- in in terest Mar- general population segregation at tion, True, not until 1983. decided established, however, It is that a con- ion. interpreted the four- Meachum and Hewitt crime allows executive officials viction for eighth teenth rather than the amendment. will, place prisoners where to sub- plead- Yet these cases are not accidents of in ject rаnge them to the of conditions rendered a ing. The Court would many prisons. Nation’s Meachum if the had ar- different decision 215, 224-25, Fano, 427 U.S. 96 S.Ct. gued under the amend- their cases 2538-39, (1976); Moody v. 49 L.Ed.2d 451 process of the due clause of ment instead n. Daggett, 429 U.S. S.Ct. all, After the fourteenth. 279 n. 50 L.Ed.2d 236 Olim applies to the states amendment Wakinekona, 461 U.S. 103 S.Ct. “incorporated” in the extent it has been (1983). of the fourteenth. Mea- process due clause “disproportionate question The about Hewitt, pris- chum, (holding that Hudson sentences” under the pri- legitimate expectation of oners have no deprived person a state has a whether cases establish that vacy), and similar liberty long, given for too the nature of prisoners to does not entitle Constitution big the offense. There is a difference be has to prison conditions a live in the best being being prison. in tween out of offer. Chapman’s liberty, though, natural was not protected may create interests. state hanging liberty in the balance. His to se example, adopt providing may, It rules lect where and how he would live had been (or people will be sent to Marion closer extinguished by judgment convic Marion) only on ac confinement within Palmer, tion. See Hudson v. 468 U.S. restricting the count of misconduct. Rules 524-28, 3194, 3199-3201, 82 L.Ed. legit may officials establish discretion of why the Court That 2d 393 pris imate claims of entitlement of which held in Meachum that a conviction autho may deprived only pro due oners be any in prisoner state to confine a rizes the ultimately held cess of law. Court institutions, though may of its even one regulations Pennsylvania’s cre Hewitt pleasant than another. For the much less legitimate claim of entitlement to ated prison same reason a state confine its general population remain in the change the cell within a ers its force though the Constitution of own prisoner’s regimen meals —individual McDonnell, See also does not. group instead meals Wolff 2963, 41 L.Ed.2d 935 showers, 418 U.S. general population, fewer less ex (1974), Helms, and the treatment of Mea ercise, on. and so Hewitt v. Wolff 225-27, chum, at 96 S.Ct. at 2538- 460, 468, 103 427 U.S. perspective is (1983) quеstion 40. The from this (segregation “is within the discretion of inmates whether rules restricted the sort of confinement segrega- receiving put Chapman in reasonably anticipate the defendants to should refusing In justification tion for to work. 1980 we discipline under Marion’s More, pro- remarked on the difference between rules. the district court found that prison discipline, prison cess and substance im- officials did not act maliciously repudiating premises vindictively; or plicitly of our this is the basis which on Saxbe, punitive damages. Bono v. court denied 1978 decision. This potential Cir.1980), liability source of holds that the is foreclosed. rather process due clause than the explosive place. Marion is an It is the governs segre- amendment duration of security prison, populat- Nation’s maximum Marion, gated confinement unless the ed violent and intractable offenders who confinement conditions of are unconstitu- adjust could not prisons. to life in other tionally process Ours is harsh.2 not a due prisons Administrators of have hard tasks. hearing. case. had a He does They population cannot control the without hearing procedur- contend that the it, authority yet every over exercise of au- ally or defective that the defendants lacked thority may expose liability. them to authority regulations under the then Supreme again Court has said over and put segregation. him in force to He there- respect prison that courts should officials’ process fore cannot recover under the due judgment. exercise of We have said over clause, and he does not seek to do so. again Marion, the officials at difficult, especially whose task is deserve way There is one more in which this case especial E.g., deference. McCollum v. argued may be under the amend- (7th Cir.1986)(Mar- Williford, 793 F.2d 903 prison If ment. officials knew that discipline ion may on basis of they punish Chapman, had no basis to but reports disciplinary withheld even from the they put kept him or in segregation him committee, although might imper- vindictively, might state a claim. Pris- prisons). missible at other Officials on officials must have some reason to im- respond judicial reducing orders their pose punishment, they up if set rules con- by exerting discretion control other fining their Superintendent discretion. ways. They change can way Hill, Walpole organized. There will be no more disobe- (1985). 86 L.Ed.2d 356 during dience at Marion work details. punish officials had reason to Chapman. has Work been cancelled. or con- Guards He order defied a direct and said he would press tractors clean the dishes and again. gave defy it He reason disobe- prisoners stay shirts. The locked in their dience, but under our 1978 decision the cells. I doubt that count the trade a defendants have damages gain. accept account of their refusal to reason. It is as put if had been It imagine is hard to a rule more enervat- press green ing prisoner than one that allows a to col- in the laundry, proclaiming shirts keepers lect from his on the green shirts look better crinkled. Involun- ground should have him returned tary portion cоnvicts, servitude is the general population, after an admit- says. the thirteenth amendment A prison- offense, nine, ted in six months rather than er who decides he will work on terms perhaps in three weeks rather than four. satisfactory expect ‍​​‌‌‌​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​‌‌​​​​​​‌‌​​​‌‍to himself must his con- authority This transfers effective from the finement to become more onerous jury; warden to a it increases the risk of Chapman’s than it was. taking disobedience is firm prison’s measures. The offi- replaces analysis process" Bono contrary. "substantive due assumes the styled process”, Morrissette, with one "substantive due see See also Gumz 615-18, replacement and this is as Cir.1985) (concurring opinion), Meachum, Hewitt, Moody, inconsistent with denied, -, cert. Olirn as is our 1978 case. Hewitt knocked the (1986). But this is not the time to by holding struts out from under Bono process, Chap deal with substantive due which regulate independently Constitution does not man has not invoked. See also note 3 below. segregation; analysis transfers to based on they may what do until Similarly, ques not know if a cials will and the case is оver decision been tion arises whether an affidavit establishes appeal. Yet if administrators probable warrant, rendered on cause to obtain a a court by this threat to their say: long react to wallets could “It has been established misconduct, easy may on the result going you probable get need cause to a war guards of and rant, be the deaths you got so if prob a warrant without many There have been too deaths at alike. you “probable able cause are liable.” But sanguine discipline. Marion to be about lax general. cause” is too In Malley Briggs, — (when in The Framers did not decide 1789 U.S. -, 1092, 106 S.Ct. 89 L.Ed.2d Congress Rights the Bill of the sent to (1986), 271 the Court concluded that the States) (when Virginia provided 1791 right question is whether a well trained necessary put to the first ten ratification and careful official should have known that effect) juries amendments into to commit to his conduct would be viewed as unconstitu prisoner’s separa- question whether a light precedents. tional in of the available general population from the lasted too tion It wrote: will not be immune “[defendants long light in of the seriousness of his of- if, basis, objective on an it is obvious that authority fense. We have no to decide so reasonably competent no officer would today. have concluded that a warrant should is sue; but if compe officers reasonable wrong, this is 2. Assume now that disagree issue, tence could on this immuni unconstitutionally long Chapman spent an ty recognized.” should be 106 S.Ct. at segregation. The defendants are time 1096; see also id. at 1098-99. liability in dam- entitled to ages “clearly es- unless their acts violated right Until the constitutional has been rights ... constitutional of which tablished reasonably competent stated so that offi- person would have known.” reasonable agree application cers would on its to a 800, 818, 457 Fitzgerald, Harlow v. U.S. facts, given set of it “clearly has not been 2727, 2738, (1982). 73 L.Ed.2d 396 102 S.Ct. purposes established” for of Harlow. In — Saxner, Cleavinger See also U.S. recognized several cases since 1978we this. -, Brown, 1161, E.g., F.2d Zook v. 748 1165 (1985). thought panel 1978 that (7th Cir.1984); Frantz, Coleman v. 754 “clearly had established” that “ex- Weems 719, (7th Cir.1985); 15 Lojuk 730 n. punishments are unconstitutional. cessive” 619, Johnson, (7th Cir.1985); 770 F.2d 628 268, Allphin, 786 F.2d Benson v. sleight always This is of hand. It is Cir.1986). Fairman, Azeez v. right possible to state the constitutional at (7th Cir.1986), recent, 1296 is most and general “clearly it a level so establish- 1301): dispositive its discussion {id. right question. question es” If a ‘clearly “The words established ... consti- arises, Attorney such as whether an Gener- rights’ may tutional not be used read the security al authorize a national wire- immunity out of federal tort law defense of warrant, tap reply a court could without a by expedient stating constitu- the facile pre- Supreme Court established general possible in the most tional warrants, sumption in favor of 1967 terms, anyone prevails on the so who interception applied the Court (for example) merits of a claim based telephone conversations. So time exercise of re- the First Amendment’s free office, it Attorney General Mitchell came clause, is, ligion claim novel that however there “clearly was established” that had immunity simply can defeat defense interception. This a warrant for an by pointing right to the free out that not, however, Supreme the method the long religion exercise of one’s been a used to decide the case. It asked Court right. clearly established constitutional general rule had been instead when sufficiently particular- is, must be specific when the Court first made —that put potential ized to defendants on notice security wiretaps require held that national Forsyth, probably 472 that their conduct is unlawful.” a warrant. See Mitchell v. Wilson, 26 See also Hobson v. & n. 105 S.Ct. — denied, U.S. -, (D.C.Cir.1984), punishments” five cert. is No. It is not so estab 1843, L.Ed.2d 142 Our lished today. It certainly was not so estab is a derelict—in this lished in decision of circuit 1973. Not until June when Helm, decided Solem v. recognize company I that it has anyway. S.Ct. did Supreme circuits, e.g., Creighton City other St. Court hold a criminal sentence invalid be Paul, Cir.1985), F.2d 1269 cert. long. cause too Earlier cases had held that the name granted under Anderson v. length punishment, of a as opposed to U.S. -, Creighton, (torture, death, its character on), and so (1986), pre but these decisions a matter for the judgment legisla explain why ap do not Malley date it is ture and the sentencing E.g., court. Hutto broadly phrased propriate right to take a as Davis, 370, v. 454 703, U.S. 102 S.Ct. 70 establishing” particular “clearly applica a (1982); 556 Estelle, L.Ed.2d Rummel v. tion. court should attorn to the Our stan 263, 100 445 1133, S.Ct. 63 L.Ed.2d 382 Azeez, under which the in dard of 1972- law (1980); States, Badders v. United 240 U.S. “clearly 73 had not established” that 391, 395, 367, 368, 36 S.Ct. 60 L.Ed. 706 eighth the amendment forbids “excessive” 126, Howard Fleming, 191 U.S. segregated terms of within a confinement 136, 24 S.Ct. (1903). 48 L.Ed. 121 prison.3 Rummel, 1978, Hutto decided after eighth show amendment does not Officers competence of “reasonable authorize federal to insist pun courts that disagree” (Malley, 1096) could 106 at S.Ct. ishments finely be proportioned to the propriety about the of their conduct in Supreme crime. The has not Court extend opinion shows, judges As this still principle ed the intra-prison to Solem disagree about the stan constitutional sanctions, suggests and Solem itself that dards. The will defendants take cold com only outrageous (life punishments prison in knowing they fort in that have been found for shoplifting) eighth violate the ground amend reasonably liable—on the that no ment. No court to day well has held that trained person could have believed nine in prison months they is cruel and were unusual entitled to act as did—for doing anything, for something jaywalking.4 that the court district thought misdemeanors, Statutes often (our authorize entitled to do a were deci rag-tag offenses, sion in collection of court) 1978 small reversed the district to punished by year’s judge panel imprisonment. at least one of this thinks And because was not Constitution allows them to do. sent to Cf. Nix v. Williams, 431, pork, 467 to handle 350-51, just but was 2501, 2512-13, prison, moved a new cell in the analogy (1983) (White, J., eighth other cases under the amendment concurring). is even weaker. 3. The question answer “was it clearly eighth only in 1973 that the case arguably established makes the question amendment in sufficiently particular forbids ‘excessive’ administra- 3. panel especially intimated in 1978 a rule adopted that was after he had officials should have released put segregation been in and that does not men- general population soon after the Bureau of appropriate tion the treatment of adopted Prisons policy against assigning peo- its Chapman’s position. eighth It amendment ple to handle foods forbidden them their nothing. religions. saying This amounts to ad- prison system ministrative rules of the “estab- 4. I put to one side the remark in Robinson v. right. lished" the constitutional v. Scher- Davis 660, California, 667, 1417, 370 U.S. 82 S.Ct. 3012, er, 468 U.S. n. 194 & (1962), day L.Ed.2d 758 that one is cruel & (1984), n. holds otherwise. and unusual having for the crime a common Davis establishes that when rule estab- us, imprison cold. Colds best of and at all lishes the claim for relief upon sued does a events the case dealt require- with the minimum violation of ty. abrogate a “clear" rule immuni- punishment, ments criminal not with the Inc., See also Companies, Gramenos v. Jewel imprisonment duration of relation to Chapman is gravity of the offense. not entitled to recover on account of a violation of the Bureau rules, of Prisons' internal Carlson, grounds, U.S. -, on other 488 F.2d 635-36 Adams 23, 1973), Aug. panel whiсh the panel Cir. Another 27) applied of this court has (586 F.2d at establishes that Harlow stan 1978 said dard of to a violation of the “disproportionate” punishment pris- amendment, eighth however, Joseph see Adams, unconstitutional. based on on is Brierton, procedural process, pre- principles of due 1984), although rejected the defense on Meachum, Moody, and Hewitt. It is ceded presented, the facts and at least two other longer authoritative. Adams did not no circuits hold that officials who violate the eighth directly hold that amendment eighth amendment be immune from limits the duration of from the liability damages. Sampson King, general population. Its discussion of the (5th Cir.1982); 693 F.2d 566 McCray v. principles melds of due Burrell, (4th Cir.1975) process proportionality, those of and it (en banc). ultimately holds that the claims before it logically applies The Harlow standard ripe amendment were not under under the cases amendment. The adjudication. concluding A decision definition of the in violation sometimes dispute it could not rеsolve the (such cludes a mental element as “deliber disposition Article III hand—that forbade indifference”, Whitley ate see and Duck- eighth on the merits of the ), objec the test under worth but Harlow legal “clearly claim—cannot establish” tive, that the element does so mental not opinions principles, advisory not unless dispose immunity question. of It is the have become law of the land. say the defendants quite consistent to that point, Adams was decided More suffer, or indif wanted to were seg after had been released from did, a reason ferent to whether he and that regation! prison The case arose out of a person have believed able would Marion, officials sum disturbance whose of was law that the infliction prisoners marily confined number fleeing shoots a police ful. The officer who segregation. indefinite The person, it injure that but subject wants to sought injunction compel to their re the officer never can does not follow that lease. The district court held that this wrongful immunity use of force. claim confinement did not violate the constitu (Mal reasonably trained officer If a well prisoners. tional Adams v. 1098) have conclud 106 S.Ct. at would ley, (E.D.Ill. Carlson, F.Supp. 891-94 force, use permissible it to ed that was 1973). At the time the defendants Jan. pain inflict subjective intent to defendant’s segregation, keep Chapman in decided immunity. here. abrogate the So not does then, by told a dis recently been had dis reasonably trained warden or If a well Marion had no prisoners at trict court that thought in ciplinary committee would lengthy impeded rights that constitutional keep some permissible 1973 that was me how the de segregation. beyond It is nine months for a one oppo supposed (but deliberate) to know were infraction of the fendants nonviolent rules, prisoner opposite could be an infraction prison’s alone how the site—let repeat, then there should be pledged in had “clearly established” been said to have Only pres when the qualified immunity. Benson, 786 of 1973. See also spring that defines the of the mental element ence 278. F.2d at reasonably that no also shows violation suggested decision of 1978 Our thought his could have trained official well there can be no when Brierton, proper, Joseph as in behavior The question is the amendment. incompatible of a violation is the existence apparently this Ninth Circuit takes view. immunity. with Compare Younger, 718 F.2d Haygood v. banc, (1983), my explores modified en far 5. The discussion so (1985), I disagreements the decision in 1978. F.2d with Albers v. (1984), disagreement one with the decision rev’d have Whitley, 743 example, today. The district court held former the court held that notice to a war- along Warden Pickett liable with his subor- den prisoner that a being was beaten did not dinates. No evidence in the record shows justify damages when the warden did not Chapman’s segre- that Pickett authorized steps take to prevent beatings. future gation approved stipu- its duration. The A may apportion responsibilities majority lation to which the refers shows among exposing supervi- officials without only Warden knew sors to liability ground on nothing, in confinement and did prevent failed to what the subordinates receiving stating after a letter doing. were The majority does not recon- adopted policy Bureau of Prisons had holding cile its with the cases I have cited. relieving handling people of food to which “clearly doctrine, The erroneous” to which they objected religious grounds. The refers, majority applies to facts and record does show that Warden read inferences; think, I however, do not (the stipulation says letter that he “re- disputed. facts and inferences are it) or that pris- ceived” wardens federal question is stipulated whether on facts the customarily disciplinary ons review cases in warden of a failing liable for light changing directives. For all the prevent a violation of the amend- shows, things, record wardens leave these ment stipulation subordinates. The along with most of the other tasks of suggest, facts does not and the district management, to their subordinates. Ward- find, court did not that Warden Pickett had policy tаsks; ens assign establish de- personal either the role or the mental state tail daily work and administration are required for a violation among parcelled the tasks out. amendment. eighth, amendment does not establish superiors’ liability. A warden is liable does,

for what he not for what he fails to

prevent his doing. subordinates from delegation

division of and the labor of func

tions within a are not unconstitution

al. A asleep job warden on the ‍​​‌‌‌​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​‌​​‌‌​​​​​​‌‌​​​‌‍will have to superiors, dozing

answer to his but off on

company time is not a violation the Con stitution. The proper defendants are those BROCK, Secretary William E. put Chapman who segregation and, de Labor, Petitioner, spite regularly reviewing status, re fused to him let out. We have held that U.S.A., DOW Operating CHEMICAL supervisory officials are not liable for fail Co., Unit of Corp. the Dow Chemical ing to things. intervene to ameliorate E.g., Occupational Safety & Health Re- Thompson, Kunzelman v. 799 F.2d 1172— Commission, view Respondents. (7th Cir.1986); Rowe, Walker v. (7th F.2d Cir.1986); 508-09 Ustrak v. U.S.A., DOW Petitioner, CHEMICAL Fairman, (7th 781 F.2d 575-77 1986); Franzen, Duckworth v. LABOR, Respondent. SECRETARY OF 650; City McKinnon v. Berwyn, 750 85-2541, Nos. 85-2545. (7th Cir.1984); Wellman v. Cir.1983), Faulkner, 715 F.2d United States Court of Appeals, denied, 1217, 104 rt. 468 U.S. ce Seventh Circuit. Crowder v. Argued 6,May 1986. Lash, 687 F.2d Cir.1982); Sept. 16, Decided Duckworth, Duncan (7th Cir.1981); Pate, Adams Some of these cases are very similar to Pate, this. In Adams v.

Case Details

Case Name: Edward Joseph X. Chapman v. George W. Pickett, Warden, U.S. Penitentiary, Marion, Defendants

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 25, 1986

Citation: 801 F.2d 912

Docket Number: 84-2842, 84-2913

Court Abbreviation: 7th Cir.