MICHAEL JOHNSON v. SUSAN PRENTICE, et al.
No. 18-3535
United States Court of Appeals for the Seventh Circuit
March 31, 2022
ARGUED JULY 22, 2020
Appeal from the United States District Court for the Central District of Illinois.
No. 16-C-1244 — Colin S. Bruce, Judge.
Before SYKES, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.
Johnson suffers from serious mental illness, including depression and bipolar disorder, and he was on crisis watch nine times while he was in segregation. Mental-health professionals employed by Wexford Health Sources, Inc., the prison healthcare provider, regularly monitored his condition and treated him with medication, which was periodically adjusted.
Johnson‘s misconduct continued while he was in segregation, especially when he refused to take his medication, and many of his violations were serious enough to trigger penalties of 30 to 90 days of no “yard” access—that is, exercise time outside his cell—as a sanction. Johnson alleged in his pro se complaint that the cumulative yard restrictions—about three years in total, some 24 months of it consecutive—violated his Eighth Amendment right to be free from cruel and unusual punishment. He also complained of unsanitary conditions, poor ventilation, and summertime heat in his cell, and excessive noise by other inmates. Finally, he alleged a claim for inadequate mental-health treatment. The district court entered
Johnson‘s case has undergone a major transformation on appeal. Now represented by counsel and supported by two amici, he seeks redress for the prolonged period he spent in solitary confinement from March 2013 until his transfer to a mental-health unit in August 2016. For support he cites academic research on the harmful effects of solitary confinement. This claim is new on appeal. Johnson never sought relief for the time he spent in solitary confinement; he sued over his loss of yard access, certain unhealthy conditions in his cell, and his mental-health treatment. Not surprisingly, the record is entirely undeveloped on the issue of the physical and psychological effects of prolonged solitary confinement. Claims not raised in the district court are waived. To the very limited extent that Johnson‘s current arguments track the claims that were raised below, they are foreclosed by the record and circuit precedent. We therefore affirm.
I. Background
Johnson began serving a sentence in Illinois state prison in February 2007. He was frequently transferred between correctional facilities, partly because of his serious prison misconduct, which includes more than 70 conduct violations from 2008 through August 2016. Almost all were classified as “major” violations. Johnson was often violent, threatening, and destructive. His adjudicated misconduct includes, for example, multiple instances of assaulting correctional officers or other inmates, fighting, intimidation and threats, possession of contraband, damaging property, throwing feces or urine out of his cell or at others, smearing feces on himself or his
Johnson was classified as a seriously mentally ill inmate and was diagnosed with antisocial personality disorder, depression, bipolar disorder, poor impulse control, panic disorder, anxiety disorder, and excoriation disorder (com-pulsive scratching). He also has a history of suicide threats or attempts. When he arrived at Pontiac, a psychiatrist employed by Wexford, the prison system‘s healthcare contractor, reviewed his records, evaluated him, and developed a treatment plan that included several psychotropic medications.
Johnson‘s misconduct continued while he was in segregation at Pontiac. Between March 2013 and August 2016, the time period at issue here, he accumulated more than three dozen conduct violations, all but one classified as “major.” These included assaults on staff and other inmates (repeated spitting and throwing bodily fluids); possession of contraband (including, once, a piece of mirror); disobeying orders; impairing surveillance; and throwing urine or feces out of his cell (among other violations). For this new misconduct, he accrued additional periods of time in disciplinary segregation, which when added to his already-accumulated segregation time meant that Johnson spent almost three and a half years—from March 2013 to August 2016—in solitary confinement. (He was also sanctioned with restrictions on his yard access, which we‘ll discuss in a moment.)
Johnson never stayed long in any one cell. During his time in segregation, Johnson transferred cells roughly 40 times. His stays typically lasted under 14 days. Some were longer, with eight stays lasting between 15 to 30 days and four stays lasting between 30 to 60 days. Johnson‘s longest stay in a single cell was 150 days, which happened once. The reasons for the cell transfers varied. Many were routine, some were disciplinary, and some were for medical or other nondisciplinary reasons. Johnson‘s pro se complaint alleged Eighth Amendment claims under
An inmate in segregation is permitted to exercise outside his cell for a few hours each week, either in an outdoor exercise area (in a small secured cage) or in an indoor recreation room. These out-of-cell exercise sessions are referred to as “yard” privileges. Yard privileges may be revoked as punishment for major misconduct, and Johnson incurred many such sanctions. Each of his individual yard restrictions ranged from 30 to 90 days, depending on the severity of his misconduct. But the sheer volume of his violations meant that he was under a yard restriction of some duration from April to July 2013 and then almost continuously from about January 2014 through August 2016, for a cumulative total of about three years. (The prison disciplinary records are not clear about the precise start and end dates for each restriction period.)
While under yard restrictions, an inmate is permitted only one hour of out-of-cell exercise per month. Johnson claimed that
Johnson complained to guards three times in the summer of 2016 about the heat in his cell and was twice relocated in response. Johnson also alleged that noise from other inmates screaming and pounding on their cell doors contributed to the poor conditions in the segregation unit, making it hard to sleep and causing him to suffer headaches and “frayed nerves.”
Finally, Johnson challenged the adequacy of his mental-health treatment. From almost the moment of his arrival at Pontiac in March 2013, his compliance with treatment was sporadic, and he vacillated between periods of stability and instability. As noted, he was evaluated when he arrived in segregation, and a treatment plan was put in place. The record reflects that he was regularly monitored by Wexford physicians and other mental-health professionals. Sometimes he agreed to meet with them, sometimes not. His medication regimen was adjusted many times, especially when he refused to take his prescribed medication or com-plained of side effects. From March 2013 to August 2016, Wexford psychiatrists prescribed the following medications at various times as they adjusted his treatment in an effort to achieve better control of his mental illness: Vistaril, Thorazine, Risperdal, Depakote, Lithium, Lamictal, Zoloft, and Cogentin (for side effects). Still, sustained stability was elusive. Johnson was placed on crisis watch nine times because of suicidal thoughts or threats, sometimes for a day or two and sometimes longer. While on crisis watch, a guard checked on him every 15 minutes.
Johnson repeatedly requested a transfer to a mental-health unit, but his treating psychiatrists concluded that it was not warranted. In August 2016 the psychiatrists finally recommended a transfer to a specialized mental-health unit. Johnson attributes the decision to this lawsuit, which he had filed two months earlier. The providers say it was because he achieved a measure of compliance with his treatment plan and was a better candidate for transfer to the specialized unit. Either way, Johnson was transferred to a mental-health unit by the end of that month.
Johnson‘s suit named numerous corrections officials,1 Wexford mental-health staff,2 and Wexford itself as defend-ants, and he raised the claims we‘ve just described.
After discovery both sets of defendants—the corrections officials and the Wexford defendants—moved for summary judgment. They supported their motions in the usual way with sworn declarations, deposition testimony, and prison records. At first Johnson did not respond. The judge gave him an additional 30 days to do so. He then filed a timely 18-page, 60-paragraph response but submitted no evidence. At the end of his response, he wrote: “I could not finish.”
The judge granted the motions and entered judgment for the defendants. He first addressed Johnson‘s contentions regarding poor conditions and excessive heat in his cell. The record was unclear about how often and for how long Johnson‘s cell was excessively hot. The judge reasoned that at most this condition was intermittent (occurring only occasionally in the summer) and would have been brief because Johnson routinely switched cells. The same was true about his complaint of poor ventilation and unsanitary cell conditions. The record did not show the frequency or extent to which Johnson was subjected to these conditions.
The judge next rejected the claim about loss of yard access, citing our decision in Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001), and also noting that the record did not establish that Johnson suffered any adverse health consequences. We‘ll return to Pearson later. For now, it‘s enough to say that our decision there establishes that a 90-day denial of yard privileges for serious misconduct by an inmate in segregation is not cruel and unusual punishment, id. at 884, nor is it an Eighth Amendment violation to “stack” such penalties unless the inmate‘s misconduct was so minor as to be “trivial,” id. at 885.
Finally, the judge addressed the claim of inadequate mental-health treatment and rejected it as unsupported by the record. Undisputed evidence established that the Wexford defendants continuously monitored Johnson‘s mental-health condition and regularly adjusted his medication as circumstances warranted. The corrections defendants did nothing to interfere with his treatment and were otherwise entitled to defer to the decisions of the mental-health professionals. For these reasons, the judge concluded that although Johnson suffered from objectively serious mental illness, the record did not support an inference that the defendants were deliberately indifferent to his mental-health needs.
II. Discussion
We review the judge‘s order granting summary judgment de novo. Quinn v. Wexford Health Sources, Inc., 8 F.4th 557, 565 (7th Cir. 2021). As we‘ve noted, Johnson was unrepresented in the district court, but on appeal he has the assistance of counsel and the support of two amici. The briefing on his side is therefore plentiful and well written. But it dramatically reframes the case.
In the district court, Johnson raised claims concerning his loss of yard access, certain unhealthy conditions in his cell, and the adequacy of his mental-health treatment. In contrast, his appellate counsel and amici now mount an extensive and sophisticated attack on solitary confinement generally, especially when it is used for prolonged periods of time and for inmates
Whatever its potential merit, this claim was not raised in the district court. It is therefore waived. Mahran v. Advoc. Christ Med. Ctr., 12 F.4th 708, 713 (7th Cir. 2021). As we recently explained:
“Failing to bring an argument to the district court means that you waive that argument on appeal.” Wheeler v. Hronopoulos, 891 F.3d 1072, 1073 (7th Cir. 2018). A party must present the specific argument urged on appeal and cannot rest on having addressed the same general issue. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2021); Fednav Int‘l Ltd. v. Cont‘l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). Although the argument need not be present in all its particulars and a party may elaborate in its appellate briefs, Lawson v. Sun Microsystems, Inc., 791 F.3d 754, 761 (7th Cir. 2015), a conclusory argument that amounts to little more than an assertion does not preserve a question for our review[,] Betco Corp. v. Peacock, 876 F.3d 306, 309 (7th Cir. 2017).
Soo Line R.R. Co. v. Consol. Rail Corp., 965 F.3d 596, 601 (7th Cir. 2020). Waiver doctrine rests on concerns about fair notice and the proper roles of the trial and appellate courts in our adversarial system.
One more point: Although we construe pro se filings liberally, pro se litigants are generally subject to the same waiver rules as those who are represented by counsel. Douglas v. Reeves, 964 F.3d 643, 649 (7th Cir. 2020).
Even liberally construed, Johnson‘s pro se filings in the district court never raised and developed a claim for damages for his prolonged detention in solitary confinement. As the case comes to us, the record is entirely undeveloped on the issue of the physical and psychological effects of solitary confinement, either in general or in Johnson‘s case in particular. The record clearly establishes that he suffered from serious mental illness predating his transfer to Pontiac and remained seriously mentally ill during the extended time he spent in solitary confinement, cycling between periods of stability and crisis. But it is equally clear that neither Johnson‘s complaint nor his response to the summary-judgment motions hinted at a claim for damages stemming from his placement or continuation in solitary confinement. To repeat, he challenged the loss of yard privileges, certain cell conditions, and the adequacy of his mental-health treatment.
Accordingly, neither the corrections officials nor the Wexford defendants developed legal arguments or an evidentiary record to meet a general attack on the use of solitary confinement or even a more focused argument regarding the use of solitary confinement as a response to Johnson‘s persistent and serious misconduct. Nor did the judge address any such claim in his summary-judgment ruling. There was no need to. Read fairly and with generosity, Johnson‘s filings never mentioned such a claim.
To be sure, the reframed appellate argument incorporates some of the evidence underlying Johnson‘s original claims—but only as part of the background for the newly raised challenge to his solitary confinement. That could be construed as an abandonment of the claims raised below.
We begin with the familiar deliberate-indifference liability standard:
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards 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 serious harm exists, and he must also draw that inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). The claim thus has subjective and objective elements, “each of which must be satisfied.” Quinn, 8 F.4th at 565. The plaintiff must prove that the defendant was subjectively aware of and intentionally disregarded an objectively serious risk to his health or safety. Id. at 565–66. The record is unclear about how often or for how long Johnson endured each of the harsh cell conditions he complained of below. (Recall that he was moved to a different cell some 40 times.) Generally speaking, challenges to conditions of confinement cannot be aggregated and considered in combination unless “they have a mutually enforcing effect that produces the deprivation of a single, identifiable need such as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991). That‘s because “[n]othing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” Id.
The record does not establish the frequency, severity, or duration of the unsanitary cell conditions, excessive heat, or poor ventilation in Johnson‘s cells, making it hard to evaluate the objective component of the claim. And even if we assume that one or more of these conditions was objectively serious, there‘s a failure of proof on the subjective element. The record lacks an adequate factual basis to evaluate the state-of-mind question for each defendant regarding each of the complained-of cell conditions. Without sufficient evidence of their subjective culpability, they cannot be held liable.
The yard-access claim is deficient under our decision in Pearson. There we held that a 90-day period of no yard privileges as a sanction for misconduct does not inflict cruel and unusual punishment on an inmate in segregation. Pearson, 237 F.3d at 884. We further held that imposing consecutive 90-day periods of no-yard privileges for separate misconduct violations does not violate the Eighth Amendment unless the sanctions were meted out for “some utterly trivial infraction of the prison‘s disciplinary rules.” Id. at 885. Pearson involved a challenge to four “stacked” 90-day yard restrictions, for a total of 360 consecutive days. The sanctions were imposed for beating a guard, spitting on a guard, setting fire to cell property, and throwing bodily fluids at a medical technician. Id. That is not trivial misconduct, so the challenge to the aggregated 360-day no-yard sanction failed. Id.
Johnson‘s cumulative yard restrictions were far longer: about three years in total, approximately two years of it consecutive. But he did not argue below (and does not argue here) that his misconduct was trivial, either individually or in the aggregate. Nor could he. While perhaps not as violent as the misconduct at issue in Pearson, his
The rest of Johnson‘s opening brief consists of seven short pages directed at the challenge to the adequacy of his mental-health treatment. Though the argument is thin—almost an afterthought—this claim was preserved below and is raised again here, so we turn to it now. We can be brief. To prevail, Johnson needed to present evidence that one or more of the defendants deliberately disregarded his mental-health needs. Quinn, 8 F.4th at 565. More specifically, he needed evidence that the defendants “actually knew of [his] serious health need and acted with deliberate indifference to [his] suffering.” Howell v. Wexford Health Sources, Inc., 987 F.3d 647, 653 (7th Cir. 2021). For a claim against a prison medical provider, the plaintiff must show that “the medical professional‘s response was so inadequate that it demonstrated an absence of professional judgment.” Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 763 (7th Cir. 2021) (quotation marks omitted). A mere difference of opinion about a treatment decision will not suffice; “[a] medical professional is entitled to deference in treatment decisions unless no minimally competent professional would have so responded under those circumstances.” Id. (quotation marks omitted). Put slightly differently, “where a prisoner has received at least some medical treatment[,] he must show a substantial departure from accepted professional judgment, practice, or standards.” Eagan v. Dempsey, 987 F.3d 667, 683 (7th Cir. 2021) (quotation marks omitted). And “expert medical evidence is often required to prove this aspect of [the] claim.” Id. (quotation marks omitted).
There‘s no real dispute about the objective element of the claim here: Johnson clearly suffered from serious mental illness. But the record falls far short on the subjective element. The evidence shows that the Wexford defendants evaluated Johnson when he arrived at Pontiac, developed a treatment plan for his mental illnesses, and continuously monitored his condition, adjusting his medication as needed. He maintains that they should have transferred him to a specialized mental-health unit far sooner. This argument reflects a difference of opinion about his medical care. There is no expert testimony that their treatment decisions represented a departure from accepted professional standards—much less a substantial departure—and no evidence suggests that their decisions were not actually based on medical judgment. The Monell claim against Wexford itself suffers from two deficiencies: there is no proof of an underlying constitutional violation by any individual Wexford defendant nor any evidence that an institutional policy caused such a violation. Quinn, 8 F.4th at 568.
Johnson‘s discussion of this claim does not mention the corrections defendants. We take that as a waiver, but we add that any claim against them fails for a different reason. “We have long recognized that the division of labor within a prison necessitates that non-medical officials may reasonably defer to the judgment of medical professionals regarding inmate treatment.” Giles v. Godinez, 914 F.3d 1040, 1049 (7th Cir. 2019).
Before closing, we note for completeness that Johnson does not challenge the judge‘s denial of his several requests under
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
ROVNER, Circuit Judge, dissenting in part. Although the appellant and the amici present strong arguments that confinement in a segregation unit, particularly for the length of time and under the conditions here, is constitutionally problematic, I agree with the panel that the issue as to the constitutionality of solitary confinement itself was never presented to the district court. Therefore, I join the majority in concluding that this issue was not before us, and in its disposition of the remaining issues with one exception.
I cannot join in the opinion to the extent that it upholds summary judgment as to the yard restrictions. In contrast to the issue of segregation itself, the constitutionality of the yard restrictions, which operated to virtually eliminate all opportunity to exercise, was directly preserved in the district court and is argued here. And it, too, necessarily involves consideration of the conditions of confinement in the segregation unit. See Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001) (noting that “segregation is akin to solitary confinement and that such confinement, uninterrupted by opportunities for out-of-cell exercise could reasonably be described as cruel and, by reference to the current norms of American prisons, unusual“) (internal quotation marks omitted). For more than three years, Johnson was held in segregation and denied virtually all access to exercise as a punishment for his refusal, or inability, to comply with prison rules. The result was a deteriorating mental state that virtually ensured further rules violations, creating a self-perpetuating cycle. But access to exercise is not a perquisite or privilege to be used as a sword to ensure compliance with any institutional rule. It is an essential human need, and Johnson‘s challenge to those conditions should have survived summary judgment. See Wilson v. Seiter, 501 U.S. 294, 304 (1991). In segregation at Pontiac, Johnson was held in isolation day and night, in a windowless cell, with a cell light that remained on 24/7, and behind a door that for most or all of his cell placements was a solid one. Meals were eaten in the cell and delivered through a slot in the door. He was allowed out of his cell once per week for a ten minute shower, and when not on yard restriction, was provided an opportunity to exercise in the yard on a weekly basis. Even in the yard, inmates were kept in individual cages, but the cage in the yard was a little bigger than his cell, contained a pull-up bar, and allowed room for exercise because in his cell any of his clothes and possessions had to be kept on the limited floor space as no shelves or storage options were provided. The rest of his time was spent in his cell in the segregation unit and therefore alone and isolated from others.
When on yard restrictions, Johnson was allowed only one hour per month of yard time, and even that time was routinely eliminated, thus essentially resulting in “24/7” solitary confinement. As the majority recognizes, the yard restrictions imposed
Among his objections to the conditions of his confinement while in that segregation unit, Johnson challenges those yard restrictions, arguing that “prolonged solitary confinement cannot be imposed without access to regular out-of-cell exercise (whether indoor or outdoor) unless a pressing security concern necessitates this severe restriction.” Appellant‘s Brief at 20. As to that issue, I would vacate the district court‘s grant of summary judgment and remand the case.
In assessing an action under the Eighth Amendment‘s prohibition against cruel and unusual punishment, courts consult the “‘evolving standards of decency that mark the progress of a maturing society,‘” Delaney, 256 F.3d at 683, quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981). “Thus, conditions which may have been acceptable long ago may be considered unnecessarily cruel in light of our growing understanding of human needs and the changing norms of our society.” Id. For well over 20 years, we have recognized that the failure to provide opportunities for exercise to prisoners can violate the Eighth Amendment. In 1995, we recognized that “exercise is now regarded in many quarters as an indispensable component of preventive medicine,” Anderson v. Romero, 72 F.3d 518, 528 (7th Cir. 1995), and by 2001 we held that “exercise is no longer considered an optional form of recreation but is instead a necessary requirement for physical and mental well-being.” Delaney, 256 F.3d at 683. At
an institutional directive requiring five hours of exercise per week for segregated inmates. Id. at 686, quoting Davenport, 844 F.2d at 1314.2 Because yard restrictions which deny the prisoner the ability to exercise deprive him of a necessity for physical and mental well-being and create a strong likelihood of psychological injury, a disciplinary restriction with such an impact on the health of prisoners cannot be imposed lightly if it is to survive
In upholding summary judgment against Johnson on that claim, the majority relies on Pearson as holding that “a 90-day period of no yard privileges as a sanction for misconduct does not inflict cruel and unusual punishment on an inmate in segregation.” Maj. op. at 13. Again relying on Pearson, the majority also holds that “imposing consecutive 90-day periods of no-yard privileges for separate misconduct violations does not violate the
As an initial matter, the Pearson holding that a yard restriction limited to 90 days is not cruel and unusual punishment is a qualified one. The Pearson court cautioned that the 90-day threshold avoids constitutional issues “[a]t least in general,” but noted that the cruel and unusual punishments clause has both a relative and an absolute component, and that even a 90-day denial of yard privileges could violate the
Moreover, the language in Pearson regarding “trivial” infractions must be read in light of the issue actually before the court. The four infractions at issue in Pearson were indisputably “serious” ones that involved: attacking and beating a guard such that the guard required hospitalization; setting fire to blankets, coats and boxes so as to require evacuation of prisoners with respiratory problems; spitting in the face of a guard who was trying to restrain him after he assaulted another guard; and throwing a broom and a bottle of bodily fluids at a medical technician, such that the fluids got in the victim‘s face. 237 F.3d at 885. Because the yard restriction was necessary for the security of the staff and prisoners, Pearson did not have occasion to consider the other end of the spectrum of misconduct-behavior which would be insufficiently serious to justify the deprivation of the right to exercise under the
Those cases cited in Pearson illustrate the type of situations in which a restriction on yard access can be constitutionally justified as not intolerable in a civilized society. In Martin, the court held that there were no outdoor exercise facilities available and that the space within Martin‘s cell allowed for exercise, but also that Martin posed a security risk because he was facing criminal charges for an escape from jail. 845 F.2d at 1456. The court therefore concluded that the limitation on his access to the outdoors was related to a legitimate prison concern. Id. LeMaire similarly recognized that out-of-cell exercise could be denied where it would present a serious security threat. In that case, the court recognized that exercise was one of the basic human necessities protected by the
That holding is consistent with the holdings in other cases in which restrictions on exercise were imposed upon prisoners by the institution. In those cases, we have repeatedly held that “‘[t]o deny a prisoner all opportunity for exercise outside his cell would, the cases suggest, violate the Eighth Amendment unless the prisoner posed an acute security risk if allowed outside of his cell for even a short time.‘” Delaney, 256 F.3d at 687, quoting Anderson, 72 F.3d at 527. That approach to assessing exercise restrictions was echoed recently by Justice Sotomayor in a statement respecting the denial of certiorari in Apodaca v. Raemisch, 139 S. Ct. 5, 7-8 (2018), noting that with respect to deprivations of outdoor exercise, “the presence (or absence) of a particularly compelling security justification has, rightly, played an important role in the analysis of the Courts of Appeals,” and that “[i]t should be clear by now that our Constitution does not permit such a total deprivation [of outdoor exercise] in the absence of a particularly compelling interest.”
That focus is consistent with our treatment of deprivations of food or warmth, which, like exercise, have been identified as essential human needs for
Similarly, in Freeman v. Berge, 441 F.3d 543, 544 (7th Cir. 2006), we addressed the denial of food service to Freeman when he refused to comply with the rules for the receipt of food, including the requirement to stand in the middle of the cell and to wear shorts or pants while the food was delivered through the door slot. As a result of violations of that rule, Freeman was denied a significant number of meals, and he argued that the denial of food for the violation of a prison rule was cruel and unusual punishment under the
In Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006), we again considered whether the conditions to which an inmate was subjected were sufficiently serious to deny him “the minimal civilized measure of life‘s necessities.” Gillis was placed in a Behavioral Modification Program (the “Program“) after violating the prison rule requiring inmates to sleep with their head positioned towards the back of the cell rather than aligning themselves on the bed with their head to the front, so that guards could see their heads through the small window on the cell door. Id. at 489-90. The Program involved progressive stages of various levels of deprivations. Stage one involved confinement to a cell with no clothes, property, or bedding, in which he had to sleep naked on a concrete bed, and received nutri-loaf (“basically a ground-up block of food“) for meals. Id. at 490-91. He argued that without clothing or bedding he was so cold he had to pace in his cell for some 14 hours trying to get warm, resulting in sores on his feet. Id. That stage was supposed to last for three days, but was continued for two more days after he smeared blood and feces around his cell, which the government argued can impair its ability to see through the window. Id. at 490. At stage two, which is supposed to last for seven days, he received some limited additional “privileges,” including a one-piece item of clothing like a sleeveless poncho, and meals in his cell, although no bedding, mattress, or shower. Id. at 491. He suffered a deteriorating mental state, including becoming suicidal, under those
Those cases relating to the denial of the basic human necessities establish the “critical ‘distinction, for purposes of applying the eighth amendment in the context of prison discipline, between punishment after the fact and immediate coercive measures necessary to restore order or security.‘” Rodriguez, 403 F.3d at 953, quoting Ort, 813 F.2d at 324-25. Even where a prison rule is violated such as the failure to sleep in an orientation that would enable proper observation, we have recognized that the denial of essential human needs can result in unconstitutional conditions of confinement. Here, the deprivation of all opportunities to exercise deprived Johnson of an essential human need, and it was an after-the-fact punishment not a coercive measure. Johnson could not restore his ability to exercise by simply complying with the rule. Once the violation was assessed, he could not exercise for the entirety of the 2 to 3 month period regardless of his conduct. If the deprivation here was food, clothing or warmth, the cases cited above would be clear that the total deprivation adequately alleged a violation of the
Considering only the infractions identified above for which we have a factual basis, however, none present the type of acute security risk that can support a granting of summary judgment as to the constitutionality of that expansive denial of the right to exercise-a right rendered even more critical given that Johnson was in segregation and that exercise constituted his only regular reprieve from the isolation of the cell and the psychological deterioration that comes with that situation. The question here is not whether such misconduct warranted disciplinary action. Indeed, Johnson received other consequences for the infractions in addition to the yard restriction. For each of those infractions, Johnson also received discipline in the form of 2-3 months’ additional segregation. But the yard restrictions at issue deprived Johnson of all but one hour a month of out-of-cell exercise (with even that one hour regularly cancelled and not rescheduled) even though the infractions did not indicate that Johnson would present a security risk or a safety threat if allowed access to the yard, with its individual cages, to exercise. The imposition of consecutive yard restrictions for those infractions is particularly disturbing in light of the admission in the State‘s Statement of Undisputed Facts that “Plaintiff would voluntarily cover himself and his cell with feces due to his mental illness.” App. 523, #132. Given the acknowledgment that his mental illness contributed to that behavior, it is particularly problematic to then use that conduct as a basis to deny yard privileges-when the access to exercise is recognized as critical for mental health, and denial of that exercise for segregated prisoners for more than 90 days creates the strong likelihood of further psychological injury. Delaney, 256 F.3d at 685. That creates a cycle which a prisoner in segregation will be ill-equipped to overcome. The Constitution cannot countenance such a routine use of yard restrictions absent any security concerns with the actual yard access by the prisoner.
And significantly, the defendants do not assert that there are indeed any such security concerns. In fact, there are no allegations that any infraction occurred during yard time, whether serious or trivial. Accordingly, as to the yard restrictions, the district court cannot determine as a matter of law that the
For those reasons, I respectfully dissent as to the grant of summary judgment regarding