*1 In the
United States Court of Appeals
For the Seventh Circuit
No. 98-4110
Alex Pearson,
Plaintiff-Appellee,
v.
Anthony Ramos,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 6591--Paul E. Plunkett, Judge.
Argued June 7, 2000--Decided January 22, 2001 Before Posner, Coffey, and Ripple, Circuit Judges. Posner, Circuit Judge. The plaintiff, a state prisoner, brought suit under 42 U.S.C. sec. 1983 against the superintendent of the disciplinary- segregation unit of the prison, seeking damages for harm that the plaintiff claimed to have suffered as a result of being denied access to the prison yard for exercise for an entire year. A jury awarded the plaintiff $15,000 in compensatory damages and $50,000 in punitive damages; the judge cut the punitive damages to $15,000 аnd entered judgment for the plaintiff, precipitating this appeal.
Prisoners in the segregation unit are confined to their cells, which are small (9 feet by 12 feet) and, because the cell contains a toilet and sink as well as a bed, cramped. They are allowed out only for trips to the law library or the health-care unit or to receive visitors or take a shower once a week, except that they are also allowed to use the yard for an hour a week, or five hours a week if they have been in segregation for at least 90 consecutive days.
However, one of the authorized sanctions for serious infractions of prison rules is denial of yard privileges for 90 days. During a six-month period the plaintiff committed four such infractions and was punished for each one with a 90-day denial of yard privileges, the "sentences" to run consecutively ("stacked," as the parties *2 call it). As a result, he was denied access to the yard for a year. He contends that this denial was a cruel and unusual punishment.
The defendant claims entitlement to immunity, as
well as challenging the judgment on the merits.
The plaintiff argues that since the defendant
could have appealed frоm the denial of his
immunity claim before the trial and judgment, it
is too late for him to appeal now. That is wrong.
Even when there is a right of interlocutory
appeal, a party can wait till the case is over
and then appeal, bringing before us all nonmoot
interlocutory rulings adverse to him. Jays Foods,
L.L.C. v. Chemical & Allied Product Workers
Union, Local 20,
2000); Retired Chicago Police Ass’n v. City of
Chicago,
Kramer,
Certainly from our standpoint, however, it is preferable for a party to file a single appeal at the end of the case rather than a series of interlocutory appeals.
In order that legal doctrine may continue to
evolve in common law fashion, the Supreme Court
has instructed us to decide the merits of an
appeal even if there is a good immunity defense,
since a decision on whether the defendant is
entitled to immunity requires freezing the law as
of the date he acted. Wilson v. Layne, 526 U.S.
603, 609 (1999); County of Sacramento v. Lewis,
2000), and Horne v. Coughlin,
On to the merits. In Davenport v. DeRobertis,
Confinement in segregation is an approximation to
solitary confinement, and evidence that this
court in Davenport found convincing indicates
that long stretches of such confinement can have
serious adverse effects on prisoners’
psychological well-being. When unrelieved by
opportunities for out-of-cell exercise, such
confinement could reasonably be described as
cruel and, by referencе to the current norms of
American prisons, unusual. Tighter limits on the
right to exercise have been upheld when the
period of restriction was shorter than 90 days.
E.g., Thomas v. Ramos,
The 90-day threshold for considering a denial of
out-of-cell exercise opportunities a possible
violation of the cruel and unusual punishments
clause is of course arbitrary. But issues of
immunity to one side, prison authorities are
entitled to some guidance from the courts with
respect to the meaning of the vague generalities
of the Constitution. We think it a reasonable
rule that a denial of yard privileges for no more
than 90 days at a stretch is not cruel and
unusual punishment. Thomas v. Ramos, supra, 130
F.3d at 763-64; cf. Henderson v. Lane, 979 F.2d
466, 469 (7th Cir. 1992) (per curiam). At least
*4
in general; for the cruel and unusual punishments
clause has a relative as well as an absolute
component. Certain forms of punishment are
considered cruel and unusual without regard to
the conduct for which they are imposed. Lousiana
ex rel. Francis v. Resweber,
Helm,
The infractions here were not trivial, however. In the first one, the plaintiff and another inmate attacked and beat a guard, injuring him seriously enough to require his hospitalizаtion. In the second, the plaintiff set fire to blankets, coats, and cardboard boxes, producing so much smoke that prisoners with respiratory problems had to be evacuated. Next, the plaintiff spat in the face of a guard who was trying to restrain him after the plaintiff had assaulted another guard. Last, he threw a broom and a bottle of unspecified "bodily fluids" at a medical technician, and the fluids got on the victim’s face. We do not understand the plaintiff to be arguing that for each such infraction a 90- day withdrawal of yard privileges would be excessive punishment, even in conjunction with the оther sanctions imposed on the plaintiff each time, such as loss of good time. Rather, he asks us to treat this case as if a 360-day denial of yard privileges had been decreed for a course of misconduct embracing the four infractions.
Suppose we do that; we still do not think that,
in the circumstances, it could reasonably be
found that the punishment was cruel and unusual.
All four infractions occurred when the plaintiff
was outside his cell. All occurred within the
short space of six months. They marked the
plaintiff as violent and incorrigible. To allow
him to exercise in the yard would have given him
*5
additional opportunities to attack prison staff
and set fires. Preventing access to the yard was
a reasonable method of protecting the staff and
the other prisoners from his violent
propensities. Any objection to the punishment
based on considerations of proportionality thus
dissolves and leaves for consideration only
whether the denial of yard privileges for a year
does so much harm to a prisoner that it is
intolerable to the sensibilities of a civilized
society no matter what the circumstances. The
answer is no, and is supported by case law,
Martin v. Tyson,
To confine in "solitary" a prisoner who behaves like a wild beast whenever he is let out of his cell is the least cruel measure that occurs to us for dealing with such a person. What else should the prison have done? No answer is suggested by the plaintiff’s lawyer or by the district court, and we shall merely register our astonishment at the judge’s remark that none of the plaintiff’s infractions involved "serious harm to others." The first inflicted serious harm, and the second (the arson) and the fourth (the assault with the bottle of bodily fluids) creаted a serious danger of inflicting serious harm.
It is telling that no credible evidence was
presented of any physical or psychological harm
to the plaintiff as a result of his protracted
confinement in the segregation unit, although he
was permitted to perjure himself by testifying
that he lost weight during the year that he was
denied yard privileges, when unchallenged prison
records showed that he did not lose any weight,
and by testifying that his teeth fell out as a
consequence of his lack of out-of-cell exercise,
when in fact he lost only one tooth and that at
the outset of the period. Even permitting him to
testify about his teeth violated the rules of
evidence. A nonexpert is not permitted to give
expert testimony. Fed. R. Evid. 702. Wholly
lacking in medical knowledge as he was, the
plaintiff was incompetent to testify on the
causal relation if any between exercise and
healthy gums. See Pedraza v. Jones,
In any event, it is wrong to treat stacked
sanctions as a single sanction. To do so produces
the ridiculous consequence of enabling a
prisoner, simply by recidivating, to generate a
colorable Eighth Amendment claim. Suppose that
the sanction for an infraction of the prison’s
disciplinary rules were only a single week’s
withdrawal of yard privileges; on the plaintiff’s
theory, if he committed 52 infractions, he could
complain that a year’s denial of yard privileges
violated his rights under the Eighth Amеndment.
"If [the defendant] has subjected himself to a
severe penalty, it is simply because he has
committed a great many of such offenses. It would
scarcely be competent for a person to assail the
constitutionality of the statute prescribing a
punishment for burglary, on the ground that he
had committed so many burglaries that, if
punishment for each were inflicted upon him, he
might be kept in prison for life. The mere fact
that cumulative punishments may be imposed for
distinct offenses in the same prosecution is not
material upon this question." State v. Four Jugs
of Intoxicating Liquor,
1886), quoted in O’Neil v. Vermont,
Incidentally, we are at a loss to understand
what the district judge was thinking when he
upheld an award of punitive damages against this
defendant, even if we are wrong in thinking that
there was no violation of the plaintiff’s rights.
There is no suggestion that the defendant acted
with any malice toward the plaintiff. He imposed
a sanction authorized by state law; and though he
imposed it repeatedly, not only was this stacking
also authorized, but he had no reason to believe
that he was violating the Eighth Amendment. The
criteria for imposing punitive dаmages in a civil
*7
rights case, on which see Smith v. Wade, 461 U.S.
30, 56 (1983); Kolstad v. American Dental Ass’n,
Indeed, there isn’t enough evidence of the state
of mind of the defendant to justify a finding of
liability, even if the plaintiff’s confinement
was a violation of the Eighth Amendment, as we
have held it is not. For there is no evidence
that Superintendent Ramos was actually aware of
any risk to the plaintiff’s physical or
psychological well-being. See Wilson v. Seiter,
supra,
The judgment of the district court is reversed with instructions to enter judgment for the defendant.
Reversed.
RIPPLE, Circuit Judge, concurring in the judgment. The Eighth Amendment to the Constitution of the United States prohibits the infliction of cruel and unusual punishment. The question we must resolve in this case is whether Mr. Ramos violated this constitutional provision when he ordered Mr. Pearson to be confined in segregation without an opportunity to exercise outside his cell for a long period of time.
1.
Our understanding of the issue before us--and of the import of the majority’s conclusion--will best be understood if the facts surrounding Mr. Pearson’s extended deprivation are placed in the broader factual context of the case.
Mr. Pearson is serving a 45-year sentence in Stateville Correctional Center ("Stateville") for murder. For disciplinary reasons, Mr. Pearson was placed in segregation in "I House"; Mr. Ramos is the Unit Manager (or cell block supervisor) for I House. Inmates in segregation usually are allowed at least one hour of outdoor recreation ("yard") privileges per week. After an inmate has been in *8 segregation for 90 days or more, he is allowed five hours of yard time per week. However, under a Stateville directive, called "Administrative Directive 05.03.140" or "Department Rule 504," the warden or his designee (here, Mr. Ramos) can limit or deny yard privileges to inmates who have been found guilty of certain offenses or for other disciplinary reasons. According to the policy, yard privileges may be restricted for up to 90 days for an inmate’s first offense and, thereafter, allows for successive restrictions to be imposed for subsequent offenses. When the warden orders a lockdown, no prisoners are given yard time. Inmates are not prohibited from exercising in their cells (to the extent that exercise in the cells is possible), and they are given an instruction pamphlet on how to do so. Over the period beginning in November 1993, and ending in May 1994, the prison’s adjustment committee found Mr. Pearson guilty of a series of infractions./1 For each infraction, Mr. Ramos restricted Mr. Pearson’s yard privileges for 90 days, and, except for a one-week gap,/2 the restrictions ran consecutively. See R.47 at 3-4. Except for this week-long gap in March 1993, however, Mr. Pearson was denied yard privileges at all times between December 15, 1993, and December 23, 1994.
This loss of yard privileges imposed by Mr.
Ramos was separate from, and in addition to, that imposed by the prison adjustment committee. The prison adjustment сommittee’s disciplinary measures for Mr. Pearson’s infractions included the revocation of good time credits, the imposition of additional time in segregation, the demotion of Mr. Pearson to "C grade" for a period of time, and the denial of commissary privileges for a period of time.
During this year of yard restriction, Mr.
Pearson’s daily life was, as a practical matter,/3 limited to his cell./4 In October 1994, Mr. Pearson submitted a grievance in which he protested the lack of yard privileges and claimed that, as a result, he was suffering "psychological harm and stress, etc." See R.47 at 5 (internal quotation marks and citations omitted). At trial, Mr. Pearson testified that he suffered from appetite and weight loss and that he was not "as big" as before. See id. (internal quotation marks and citations omitted).
2.
The panel majority holds that, as a matter of
law, the prolonged confinement of Mr. Pearson in
this manner does not violate the Eighth
Amendment. It arrives at this conclusion by
*9
characterizing Mr. Pearson’s continuous
confinement under these circumstances as simply
the unfortunate accumulation of consecutive
sentences on Mr. Pearson’s part. Indeed, making
no distinction between sentences to confinement
by a court for criminal charges and the
administrative measures at issue here, the
majority emphasizes that, when multiple offenses
are committed, the Cruel and Unusual Punishments
Clause is not violated when separate punishments
are imposed for each violation; the concomitant
enhancement in the total sanction can be viewed
as the product of the offender’s recalcitrant
behavior. See O’Neil v. Vermont,
This general principle of criminal law is unexceptional. With respect to criminal sentences imposed by a court, it is well-established in our jurisprudence. Thе question remains, however, whether it is appropriate or helpful to the resolution of the situation before us today. The problem before us does not require that we simply measure against Eighth Amendment standards the length of a prison sentence. Rather, this case concerns conditions of confinement. We must determine whether a prison official can execute administrative penalties in such a way as to deprive the prisoner of an opportunity for exercise outside his cell for a prolonged period of time, in this case, almost a year.
3.
Relying on the methodology articulated by the Supreme Court in a number of decisions,/5 the panel majority immediately proceeds to the merits of the appeal rather than examine in the first instance the possibility that there is a valid qualified immunity defense. The panel majority then determines that, contrary to a jury verdict rendered under instructions about which neither party takes issue, Mr. Pearson was not treated in a manner that violates the Eighth Amendment.
The basic principles governing a conditions of
confinement case under the Eighth Amendment are
well-settled. The Supreme Court has said that "a
prison оfficial may be held liable under the
Eighth Amendment for denying humane conditions of
confinement only if he knows that inmates face a
substantial risk of serious harm and disregards
that risk by failing to take reasonable measures
to abate it." Farmer v. Brennan,
There can be no doubt--indeed it is common
ground between the parties and admitted by the
panel majority--that a failure to afford
prisоners an adequate opportunity to exercise can
state an Eighth Amendment claim. See Antonelli v.
Sheahan,
Although Mr. Ramos is correct that cases like
Davenport v. DeRobertis,
Fleming,
There are indeed, as the panel majority notes,/6
extreme cases in which such measures have been
tolerated because of particularly acute security
situations. For instance, the Ninth Circuit’s
decision in LeMaire stands for the proposition
that prison officials may impose complete yard
restrictions--even for an extended period of
time--when there is an acute security need to do
so.
Romero,
4.
The case before us presents a close and
difficult one for the application of these
principles. Under our existing case law, which
the panel majority does not purport to overrule,
a total restriction on exercise of this duration
would not be sustainable absent exigent
circumstances. Therefore, the action of Mr. Ramos
in imposing such a restriction depends entirely
on whether there is an adequate basis in prison
security concerns. In this regard, there is
certainly evidence in the record that Mr. Pearson
was a dangerous offender. He rеceived three of
the four restriction periods because of assaults
he perpetrated on prison staff. On the other
hand, it is clear that Mr. Pearson did not pose
the serious threat that the "beast" of an inmate
in LeMaire posed.
The existence of viable alternatives to out-of- cell exercise must also be taken into consideration. As Mr. Ramos argues, Mr. Pearson was not cut off from all human contact. But it seems less than certain that he could exercise in any meaningful way in his cell. Notably, the district court stated that Mr. Pearson’s cell was "too small for meaningful exercise." R.88 at 2. Perhaps the most difficult question to resolve is whether Mr. Ramos acted with a sufficiently culpable state of mind for him to be liable. The record shows that Mr. Ramos imposed these successive restrictions on Mr. Pearson in response to his disciplinary infractions and the safety threat Mr. Pearson had demonstrated. Thus, Mr. Ramos’ motivation for these restrictions had some penological purpose. Moreover, if it is true that Mr. Ramos has seen other prisoners exercising in their cells, it might be too much to say that he consciously disregarded a substantial risk of harm.
Given the difficult factuаl assessments that must be made in this case, including the issue of intent, the district court took the view that whether the confinement of a prisoner without the opportunity for exercise outside his cell for so long a period constituted cruel and unusual punishment was an issue for the jury. It therefore submitted the issue to the jury under instructions that are not contested here. The jury found that such prison conditions constituted cruel and unusual punishment. The district court, perceiving no error in the jury verdict, let it stand.
My colleagues now ignore that jury verdict and hold that, as a matter of law, the confinement of Mr. Pearson under thеse conditions did not constitute cruel and unusual punishment. It is difficult to see where the majority finds the legal error that justifies such a rigid approach. As I have noted earlier, it certainly cannot be in the district court’s permitting the jury to assess the punishment in the aggregate. This is not a simple sentencing matter, but a prison conditions matter. The basic question is not whether Mr. Pearson can be deprived of a certain number of days of yard time, but whether he can be deprived of those days in a continuous manner. Nor can the majority’s approach be justified on the ground that the two-step proсess outlined by the Supreme Court for the assessment of qualified immunity claims requires such action. Surely, the court complies with the Supreme Court directive by holding that the record developed at trial creates a genuine issue of triable fact as to whether Mr. Ramos’ actions constituted cruel and unusual punishment.
At bottom, the majority appears simply to
disagree with the jury as to whether this
incarceration offends the sensibilities of a
civilized society. Central to its analysis
appears to be the belief that a "beast," slip op.
at 6, deserves beastly treatment. Moreover, its
manner of expressing that disagreement places in
doubt the circumstances under which it would be
appropriate, in its view, to submit an Eighth
Amendment case to the jury. In the past, we have
recognized the role of the jury in assessing
prison condition cases. See Walker v. Shanksky,
5.
If all the facts of this case are construed in
favor of Mr. Pearson, there certainly is
sufficient evidencе to permit a jury to find a
violation of the Eighth Amendment. We
nevertheless must determine whether Mr. Ramos was
entitled to qualified immunity at the time of Mr.
Pearson’s prolonged incarceration. "[G]overnment
officials performing discretionary functions
generally are shielded from liability for civil
damages insofar as their conduct does not violate
clearly established statutory or constitutional
rights of which a reasonable person would have
known." Harlow v. Fitzgerald,
Even if we construe all facts in favor of Mr. Pearson, Mr. Ramos is correct in his argument that, in 1994, at the time he acted, it was not entirely clear that the confinement he imposed violated the Eighth Amendment. Nor was it clear at the time that "stacked" administrative punishments imposed for subsequent infractions were to be analyzed cumulatively. Indeed, my colleagues take the contrary position today. Accordingly, I believe that Mr. Ramos is entitled to qualified immunity and, on that basis, join in reversing the judgment of the district court.
/1 These infractions were: (1) seriously assaulting a prison official in November 1993; (2) setting fires outside his cell in March 1994; (3) assaulting a prison official in April 1994; and (4) seriously assaulting yet аnother prison official in May 1994.
/2 There was a one-week gap between the 90-day periods for his first and second offenses. The first 90-day period ended on March 15, 1994, and the second period began on March 23, 1994.
/3 Over the course of the year, Mr. Pearson left his cell at least four times a month and more often seven or eight times a month, either to take showers (generally once a week), to visit family members, to go to the law library, or to visit the health center. Whenever he left his cell, Mr. Pearson’s legs were shackled and his arms restrained by chains. "Any walking he did outside his cell would have beеn little more than a shuffle." R.88 at 2. During the first 90-day period, Mr. Pearson left his cell at least 23 times for a total of 31.7 hours. (Although prison records show that Mr. Pearson was given 3 hours of yard time on February 14, 1994, Mr. Pearson denies that this occurred.) During the second 90- day period, Mr. Pearson left his cell at least 20 times for a total of about 33 hours away from it. The prison was under a lockdown for 33 days during this period. During the third 90-day period, Mr. Pearson left his cell at least 16 times for a total of 32.5 hours. The prison was under a lockdown for 28 days during this period. Finally, during the fourth 90-day period, Mr.
Pearson left his cell 13 times for a total of 24 hours. The prisоn was under a lockdown for 42 days during this period.
/4 Mr. Pearson apparently transferred cells a few times over the course of the year. It appears that each of Mr. Pearson’s cells would have *14 contained a sink, a bed, and a toilet. They also would have had a window, which could be cracked open. In its summary judgment order, the district court reports that his cell contained an open area approximately 10’2" long and between 3’8" and 4’8" wide. See R.47 at 4. Later, in the district court’s order denying the motion for judgment as a matter of law, the court stated that the open area in Mr. Pearson’s cell was "two by five feet." R.88 at 2.
/5 See Wilson v. Lane,
/6 See, e.g., Bass v. Perrin,