Antonio Smith v. John Kind

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-2870

ANTONIO M. SMITH,

Plaintiff-Appellant,

v.

JOHN KIND, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for

the Eastern District of Wisconsin.

No. 2:18-cv-01569-PP — Pamela Pepper, Chief Judge.

____________________

ARGUED DECEMBER 6, 2024 — DECIDED MAY 30, 2025

____________________

Before HAMILTON, SCUDDER, and LEE, Circuit Judges.

SCUDDER, Circuit Judge. Nearly 50 days into a hunger

strike, Antonio Smith refused a correctional officer’s order to

exit his cell for a daily wellness check. So for three days, offic-

ers entered Smith’s cell, assisted him into a wheelchair, and

transported him to the prison’s health unit—all without inci-

dent. But perhaps frustrated by the noncompliance, Captain

Jay Van Lanen changed course on day four by resorting to

pepper spray for the extraction, knowing that Smith had a

2 No. 22-2870

medical contraindication to the spray. Smith reacted to the

spray by gasping for breath for about eight minutes, only then

to find himself placed naked in a cold cell for the next 23

hours. Because we conclude that a jury could find that both

actions—using pepper spray and housing Smith in the frigid

cell—lacked a legitimate penological purpose and thus vio-

lated the Eighth Amendment, we disagree with the district

court’s grant of summary judgment for the defendants on that

ground. But in the end, troubled though we are by what Smith

endured, the principle of qualified immunity leads us to af-

firm.

I

A

At the summary judgment stage, we view the facts in the

light most favorable to the nonmoving party, here Antonio

Smith. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). By his telling, the situation unfolded as follows.

In October 2017 Smith began a prolonged hunger strike to

protest prison conditions at Green Bay Correctional Institu-

tion in Wisconsin. Pursuant to prison policy, Smith had re-

ported to the prison’s health unit for 45 days, each time de-

clining to submit to a wellness check. On day 46, however, he

declined to leave his cell, believing that prison policy allowed

a nurse to come to him. A nurse did indeed go to Smith’s cell

that day to document his refusal to submit to the wellness

check.

The following day correctional officers once again di-

rected Smith to leave his cell to go to the health unit. Having

received authorization to use force to gain Smith’s compli-

ance, a correctional officer entered the cell with a taser drawn

No. 22-2870 3

as Smith lay prone on his bed in a so-called “surrendering rit-

ual”—hands behind his back, legs crossed at the ankles, and

facing the wall. An extraction team followed closely behind

and placed Smith in handcuffs and leg restraints before sitting

him in a mobile restraint chair, essentially a wheelchair,

which allowed them to transport him to the health unit. Smith

continued to refuse orders to leave his cell, so the team fol-

lowed this same procedure the next day. And when Smith re-

fused for the fourth time, a new correctional officer, Captain

Jay Van Lanen, took charge of the extraction and repeated the

same process.

But on November 28, 2017, when Smith refused to walk to

the health unit for the fifth time, the process changed again.

For reasons not clear in the record, the officers elected to vid-

eotape this extraction. So although we continue to view gen-

uine factual disputes in favor of Smith, we will defer to the

video footage if it “firmly settles a factual issue.” Horton v.

Pobjecky, 883 F.3d 941, 944 (7th Cir. 2018).

Captain Van Lanen gathered a four-man extraction team

outside the restrictive housing unit where Smith was housed.

He stated that the extraction techniques used the previous

three days were no longer suitable. Elaborating, Van Lanen

said that Smith had “an extensive violent history with assign-

ing hits on the streets to have people killed, assault[ing]

within the prison system, and assault[ing] in general through-

out his prison career.” Smith had also grown accustomed to

the previous extraction method, Van Lanen observed, and the

team had no way of knowing whether he had a weapon in his

cell. Finally, Van Lanen explained that, because Smith was on

a hunger strike, it was important to observe whether he could

walk to the health unit, rather than be wheeled in a restraint

4 No. 22-2870

chair. On that basis, he believed it necessary to alter their ap-

proach for this extraction, adding that, although Smith had a

medical contraindication to pepper spray, Security Director

John Kind had authorized its use.

Donning full tactical gear, the extraction team entered the

housing unit and approached Smith’s cell. Lying on his bed,

Smith removed his blanket to allow the officers to see his full

body and assumed the so-called surrendering ritual. For five

minutes, Captain Van Lanen urged Smith to come to the cell

door. Smith ignored the instruction.

Van Lanen then informed Smith of his intent to use pepper

spray to gain compliance and reminded him about his contra-

indication to the spray. When Smith did not budge, Van

Lanen deployed a burst of the spray through his cell window,

immediately triggering Smith’s asthma. The video shows

that, for eight minutes, Smith had difficulty breathing,

seemed disoriented, and was drooling, coughing, spitting,

and moaning. While Smith continued to gasp for air, Van

Lanen ordered him to remove his clothes and comply with a

strip search. Although he struggled to compose himself,

Smith obeyed the order.

After handcuffing Smith, still naked, the extraction team

covered his genitals with a towel. They then helped him to his

feet and walked with him down the hallway to the health unit

where he refused a shower and wellness check. Instead of re-

turning Smith to his cell, as done the three previous days, the

officers placed him in a “control cell” used for disruptive in-

mates. Van Lanen informed Smith he could request a shower

and soap at any time and said he would return to discuss

“clothing and stuff.” This discussion occurred around noon

on November 28.

No. 22-2870 5

Smith offered evidence that the control cell was very cold

the night of November 28. By his account, the heating vent

blew air equivalent to the outside temperature, which, during

his stay in the cell, ranged from 25 to 57 degrees Fahrenheit.

All the while, the control cell had no mattress or bedding, and

Smith no clothes. And although Captain Van Lanen’s past

practice involved placing a smock, clothing, and other permit-

ted property in a security box attached to the cell regardless

of whether an inmate requests such items, he did not do so for

Smith.

Three and a half hours after being placed in the cell, Smith

requested clothing, bedding, and a mattress from Lieutenant

Timothy Retzlaff. He also complained of the cold and asked

to be moved to a warmer cell. Retzlaff informed Smith that he

needed to check with Captain Van Lanen. Twelve hours later,

another officer approached Smith and proposed an offer: if

Smith submitted to future medical evaluations, he could have

a smock; if not, he would remain naked and cold. Smith de-

clined the offer.

Smith continued waiting for Lieutenant Retzlaff to return

with word from Captain Van Lanen. But word never came. So

day turned to night. And night turned to day. And 23 hours

after Van Lanen placed him in the control cell, there Smith

remained, naked and freezing. He described his time in the

cell as painful, adding that he could not sleep and spent most

of the 23 hours on his feet.

B

In time Smith invoked 42 U.S.C. § 1983 and filed a com-

plaint in federal court alleging that various correctional offic-

ers violated his constitutional rights. After screening, the

6 No. 22-2870

district court allowed him to proceed on his Eighth Amend-

ment excessive force claims against Captain Van Lanen for

using pepper spray and Security Director John Kind for au-

thorizing its use; an Eighth Amendment conditions-of-con-

finement claim against Van Lanen and Lieutenant Retzlaff

stemming from Smith’s night in the control cell; and an Eighth

Amendment excessive force claim against officers Alexander

Bonis, John Diedrick, and Cole Meyer for alleged misconduct

during their escort of Smith to the health unit following the

use of pepper spray. The defendants moved for summary

judgment on each claim, and the district court, seeing no

Eighth Amendment violations, granted their motion in its en-

tirety.

Smith now appeals.

II

Summary judgment is appropriate when there is “no gen-

uine dispute as to any material fact,” and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

In reviewing the district court’s summary judgment ruling,

we proceed on “a clean slate, drawing all reasonable infer-

ences from the record in favor of [Smith] as the non-movant.”

Xiong v. Bd. of Regents of Univ. of Wis. Sys., 62 F.4th 350, 353

(7th Cir. 2023).

Smith alleges three Eighth Amendment violations. A via-

ble Eighth Amendment claim contains both an objective and

subjective component. See Farmer v. Brennan, 511 U.S. 825, 834

(1994). The objective component requires Smith to show that

the officers’ actions were “objectively ‘harmful enough’ to es-

tablish a constitutional violation.” Hudson v. McMillian, 503

U.S. 1, 8 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 303

No. 22-2870 7

(1991)). As for the subjective component, Smith must establish

that the defendants “acted wantonly and with a sufficiently

culpable state of mind.” Lunsford v. Bennett, 17 F.3d 1574, 1579

(7th Cir. 1994) (citing Wilson, 501 U.S. at 297).

The defendants urge us to affirm the district court’s ruling

that they acted at all times in good faith, without wantonness

and within constitutional bounds. They also invite us to af-

firm on the alternative ground of qualified immunity. We

travel the latter path.

“The doctrine of qualified immunity” is an affirmative de-

fense that “shields officials from civil liability so long as their

conduct ‘does not violate clearly established statutory or con-

stitutional rights of which a reasonable person would have

known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pear-

son v. Callahan, 555 U.S. 223, 231 (2009)). Once a defendant

raises the defense, “it becomes the plaintiff’s burden to defeat

it.” Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008).

To overcome qualified immunity, Smith must clear two

hurdles. First, he must show that the officers violated his con-

stitutional rights. Second, he must demonstrate that those

rights were clearly established at the time of the violation. See

Pearson, 555 U.S. at 232. Courts have discretion to begin with

the second step to refrain from ruling on potentially difficult

constitutional questions. See id. at 236. This approach, the Su-

preme Court has explained, aligns with principles of consti-

tutional avoidance and can save “substantial expenditure of

scarce judicial resources on difficult questions that have no

effect on the outcome of the case.” Id. at 236–37.

But skipping the first question has its drawbacks. Contin-

ued avoidance of constitutional questions, the Supreme Court

8 No. 22-2870

likewise has recognized, stunts the development of constitu-

tional precedent. See id. at 236 (recognizing that following

“the two-step procedure promotes the development of consti-

tutional precedent and is especially valuable with respect to

questions that do not frequently arise in cases in which a qual-

ified immunity defense is unavailable”); Camreta v. Greene,

563 U.S. 692, 704–06 (2011) (observing that constitutional

avoidance “sometimes does not fit the qualified immunity sit-

uation because it threatens to leave standards of official con-

duct permanently in limbo” and explaining that “constitu-

tional determinations” in qualified immunity cases are “self-

consciously designed” to “establish[] controlling law and pre-

vent[] invocations of immunity in later cases”).

This downside is especially evident when we look to the

demanding standard for showing that a right is “clearly es-

tablished”: a plaintiff must point to “existing precedent” that

puts the “statutory or constitutional question beyond de-

bate”—no doubt a monumental task if there is little constitu-

tional precedent to consider. Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011). Recognizing that both approaches have a proper

time and place, the Supreme Court leaves it to the “sound dis-

cretion” of the lower courts to determine the order of decision.

See Pearson, 555 U.S. at 236.

We exercise that discretion here to consider the first prong

and resolve whether Smith demonstrated a constitutional vi-

olation for each of his three claims. Doing so allows us to clar-

ify Eighth Amendment law in our circuit and establish future

constitutional boundaries to what, if Smith’s account is taken

as true, we see as a serious and disproportionate correctional

response to an inmate’s noncompliance with an officer’s di-

rectives. See Camreta, 563 U.S. at 705 (explaining that the

No. 22-2870 9

purpose of allowing courts the discretion to reach the consti-

tutional question is “to promote clarity—and observance—of

constitutional rules”).

A

1

We begin with Smith’s Eighth Amendment excessive force

claims arising from the use of pepper spray. Smith advances

this claim against Captain Van Lanen, the correctional officer

who deployed the spray and led the cell-extraction efforts, as

well as John Kind, the Green Bay prison’s Security Director.

Because Smith has provided no evidence that Kind acted with

wantonness in authorizing Van Lanen’s use of force to facili-

tate his extraction, we affirm the district court’s grant of sum-

mary judgment in Kind’s favor. The analysis for Van Lanen is

not so straightforward, however.

Captain Van Lanen does not dispute that his use of pepper

spray satisfies the objective harm component of Smith’s

Eighth Amendment claim. So we consider only whether he

acted with the requisite intent—wantonness. See Wilson, 501

U.S. at 302. “Wantonness,” the Supreme Court has explained,

“does not have a fixed meaning but must be determined with

‘due regard for differences in the kind of conduct against

which an Eighth Amendment objection is lodged.’” Id. (quot-

ing Whitley v. Albers, 475 U.S. 312, 320 (1986)). Experience

shows that excessive force claims often arise in contexts

where correctional officers are required to act “in haste, under

pressure, and frequently without the luxury of a second

chance,” such as in quelling a riot or other disturbance. Whit-

ley, 475 U.S. at 320. Correctional officers “must balance the

threat unrest poses to inmates, prison workers,

10 No. 22-2870

administrators, and visitors against the harm inmates may

suffer if guards use force.” Hudson, 503 U.S. at 6.

Recognizing the difficulty of balancing these competing

concerns, the Supreme Court has held that Eighth Amend-

ment excessive force claims require a “very high state of

mind”: a correctional officer’s use of force only qualifies as

“unnecessary and wanton infliction of pain” if it is applied

not “in a good-faith effort to maintain or restore discipline,”

but “maliciously and sadistically to cause harm.” Wilson, 501

U.S. at 302; Hudson, 503 U.S. at 6.

Because direct evidence of intent rarely exists, several fac-

tors inform whether “the use of force could plausibly have

been thought necessary, or instead evinced such wantonness

with respect to the unjustified infliction of harm as is tanta-

mount to a knowing willingness that it occur.” Whitley, 475

U.S. at 321. Those factors include examining the need for

force, the threat posed by the inmate as reasonably perceived

by the responsible official, the relationship between the need

for force and the amount of force used, and any efforts made

to temper the severity of a forceful response. See id.; see also

Hudson, 503 U.S. at 7. Applying these factors, we conclude

that a reasonable jury could infer that Captain Van Lanen’s

deployment of pepper spray into Smith’s cell under the cir-

cumstances presented here was malicious and sadistic.

We, of course, recognize that correctional officers have

broad leeway to exercise force when a situation presents a

threat to immediate safety. See Whitley, 475 U.S. at 321 (ex-

plaining that deference to prison administrators “carries spe-

cial weight” when the “‘ever-present potential for violent con-

frontation and conflagration’ ripens into actual unrest and

conflict” (citation omitted) (quoting Jones v. N.C. Prisoners'

No. 22-2870 11

Lab. Union, Inc., 433 U.S. 119, 132 (1977)); Lewis v. Downey, 581

F.3d 467, 477 (7th Cir. 2009) (observing that aggressive behav-

ior “increases the need for force and often poses a threat to the

security officers”). But viewing the facts in Smith’s favor, as

we must, a jury could find that he posed no such threat at the

time Captain Van Lanen deployed pepper spray into his cell.

Remember, foremost, that officers had entered Smith’s cell

to facilitate his extraction for three straight days before Cap-

tain Van Lanen chose to resort to pepper spray. Each of those

extractions proceeded without incident in the same routine

way, and nothing in the record suggests that Smith acted ag-

gressively toward correctional officers or threatened violence

in the future. To be sure, in the pre-extraction meeting, Van

Lanen stated that Smith had a history of assaultive behavior

while in prison. But the summary judgment record contains

no documented instances of Smith engaging in any violence

while incarcerated. And Smith, for his part, insists that he had

no history of violence while incarcerated.

But even on the generous assumption that Van Lanen’s

perception that Smith had a history of violent behavior was

reasonable, see McCottrell v. White, 933 F.3d 651, 668–69 (7th

Cir. 2019), on this record we have a hard time seeing his deci-

sion to change course—to shift from entering Smith’s cell

without incident to using pepper spray to which Smith had a

medical contraindication—as justified. For starters, if Smith

had a reputation of being assaultive on the day Van Lanen

used pepper spray, then he surely had that reputation the day

before. Van Lanen, however, offered no explanation for why

Smith’s alleged past behavior did not deter him from entering

Smith’s cell the previous day. So we are puzzled as to what

prompted Van Lanen to discontinue a successful extraction

12 No. 22-2870

method in favor of one that he knew could cause complica-

tions for Smith’s health.

Nor can we lose sight of the bigger picture: a four-man ex-

traction team donned full tactical gear and faced a single, un-

armed inmate, lethargic after reportedly starving himself for

more than 50 days. See Lewis, 581 F.3d at 477 (considering that

an inmate “was merely lying on his bunk, weak and sluggish

from more than ten days without food” when analyzing a cor-

rectional officer’s need for force); see also Abbott v. Sangamon

County, 705 F.3d 706, 727 (7th Cir. 2013) (discussing the “gen-

eral proposition” that using pepper spray on a subdued sub-

ject is excessive).

Captain Van Lanen also attempted to justify his resort to

pepper spray by suggesting that Smith may have had a

weapon. But here too we see, and Van Lanen has identified,

no evidence supporting that speculation: Smith was in restric-

tive housing, had not used or threatened to use a weapon dur-

ing previous extractions, and his hands were visible and

empty at all times. Van Lanen has likewise failed to explain

why his concern about Smith harboring a weapon suddenly

developed—he extracted Smith from his cell without pepper

spray and without incident just the day before.

Still, we recognize that an immediate threat to safety is not

the only circumstance in which a correctional officer can ap-

propriately use force. The Supreme Court has emphasized

many times over that correctional officers receive special def-

erence in their approach to restoring or maintaining order and

discipline. See, e.g., Bell v. Wolfish, 441 U.S. 520, 547 (1979);

Whitley, 475 U.S. at 322; Hudson, 503 U.S. at 6. That deference

applies not only to materialized threats to prison order and

inmate misconduct, like fighting or rioting, but also to

No. 22-2870 13

preventative measures intended to avoid future disturbances.

See Whitley, 475 U.S. at 322.

We applied this same principle to reverse a district court’s

determination that prison officials’ use of mace on inmates

who repeatedly refused orders to exit their cells violated the

Eighth Amendment. See Soto v. Dickey, 744 F.2d 1260, 1271

(7th Cir. 1984). The correctional officers in Soto, like here with

Smith, issued what seemed like non-emergency directives to

inmates locked in their cells. See id. at 1265–67. But the simi-

larities between the two cases end there.

Many of the inmates in Soto had well-known and docu-

mented histories of assaulting prison guards and other in-

mates. See id. at 1265. The events leading to the use of pepper

spray often involved situations where inmates prone to

throwing items (like meal trays) at guards refused to turn

over the objects. See id. at 1265–66. Put simply, it gives anal-

ogy a bad name to see the inmates in Soto as like Smith, who

was 50 days into a hunger strike and had no demonstrated

history of violence within the prison. And while correctional

officials entered Smith’s cell three days in a row without inci-

dent, the maximum-security prison in Soto had developed its

policy of using pepper spray as the first response to an in-

mate’s refusal to leave his cell after careful analysis and con-

sideration of the unit’s history of disruption and the inmates’

past use of makeshift weapons. See id. at 1262–65, 1267.

Captain Van Lanen nevertheless insists that, like the

guards in Soto, he was justified in using pepper spray once

Smith refused his orders because “[i]nmates cannot be per-

mitted to decide which orders they will obey, and when they

will obey them.” Id. at 1267. At that level of generality, we

agree—inmates may not pick and choose which orders to

14 No. 22-2870

obey. But an inmate’s passive disobedience, without more,

does not in and of itself authorize unrestrained or extreme es-

calation of force. See Treats v. Morgan, 308 F.3d 868, 872–73

(8th Cir. 2002) (“Not every instance of inmate resistance justi-

fies the use of force, and use of pepper spray will not be justi-

fied every time an inmate questions orders or seeks redress

for an officer’s actions.” (citations omitted)). Instead, we con-

sider an inmate’s disobedience, along with the surrounding

“facts and circumstances,” to determine whether a particular

use of force was necessary. Soto, 744 F.2d at 1270. Here, sev-

eral factors—particularly Smith’s weakened condition and

the history of peaceful and successful extractions on three pre-

ceding days—could lead a reasonable jury to find that Van

Lanen’s use of pepper spray was unnecessary.

Our conclusion that the need for Van Lanen to resort to

pepper spray was relatively low informs the corollary analy-

sis of the relationship between the need for force and the

amount of force used. If there was little need for force, then

even a small amount of force may be disproportionate. See

McCottrell, 933 F.3d at 667 (“Obviously, if there was no need

for the warning shots, then those shots were significantly dis-

proportionate to the need for force.”).

Many inmates may experience pepper spray as a relatively

minor use of force. See Soto, 744 F.2d at 1262 (“Without excep-

tion, the institutional officials and officers were of the opinion

that the use of mace was much more humane and effective

than a flesh to flesh confrontation with an inmate.”); see also

Roberson v. Torres, 770 F.3d 398, 406–07 (6th Cir. 2014) (ex-

plaining that whether use of pepper spray is preferable to a

physical altercation depends on the circumstances). And

courts, including ours, have sanctioned the use of pepper

No. 22-2870 15

spray on noncompliant inmates. See, e.g., Soto, 744 F.2d at

1270; Staples v. Gerry, 923 F.3d 7, 17–18 (1st Cir. 2019).

But Smith was not the typical inmate. See Segrain v. Duffy,

118 F.4th 45, 61 (1st Cir. 2024) (explaining that the “type of

physical reaction an incarcerated person has to the pepper

spray” matters in an Eighth Amendment excessive force anal-

ysis). Not only was he 50 days into a hunger strike, but he also

had a documented history of asthma, making the resort to

pepper spray all the more dangerous. See Garvin v. Armstrong,

236 F.3d 896, 898 (7th Cir. 2001) (“Asthma, depending upon

its degree, can be a serious medical condition.”). Captain Van

Lanen knew of this danger.

In the final analysis, based on Smith’s version of events,

we conclude that a reasonable jury could find in his favor on

the excessive force claim against Captain Van Lanen. The ev-

idence supports a “reliable inference” that Van Lanen knew

that Smith—on the verge of starvation, with no documented

history of violence while incarcerated—posed no credible

threat to officer safety or prison administration. Whitley, 475

U.S. at 322. From there a jury could determine that Van

Lanen’s opting for a method of force that he knew Smith had

a medical contraindication to was so disproportionate to the

risks that it could not “plausibly have been thought neces-

sary” and “instead evinced such wantonness with respect to

the unjustified infliction of harm as is tantamount to a know-

ing willingness that it occur.” Id. at 321.

2

Having determined that a jury could find that Van Lanen

violated Smith’s constitutional rights, we move to the second

prong of the qualified immunity analysis: whether that right

16 No. 22-2870

was clearly established. See Pearson, 555 U.S. at 232. It is on

this prong that Smith falls short. The fact intensive inquiry

that led us to conclude that Van Lanen’s actions violated his

right to be free from excessive force precludes us from deter-

mining at the requisite level of specificity that the constitu-

tional violation was clearly established enough as to put Van

Lanen on notice.

State correctional officers are immune from liability for

conduct that “does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per

curiam) (quoting White v. Pauly, 580 U.S. 73, 78–79 (2017) (per

curiam)). For a law to be clearly established, “existing prece-

dent must have placed the statutory or constitutional ques-

tion beyond debate.” White, 580 U.S. at 79 (quoting Mullenix,

577 U.S. at 12); see Sabo v. Erickson, 128 F.4th 836, 844 (7th Cir.

2025) (en banc). Put differently, save for the “rare ‘obvious’”

violation, Smith must identify a case that “every reasonable

official would interpret … to establish the particular rule” he

seeks to apply. District of Columbia v. Wesby, 583 U.S. 48, 63

(2018) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)

(per curiam)).

Smith cannot clear this high bar. Returning our attention

to Soto, he contends that Captain Van Lanen violated his

clearly established right by using “mace or other chemical

agents in quantities greater than necessary.” 744 F.2d at 1270.

But the Supreme Court has cautioned courts against reason-

ing from broad principles when considering whether a right

is clearly established for qualified immunity purposes. See

Kisela, 584 U.S. at 104. Especially in excessive force cases,

where “it is sometimes difficult for an officer to determine

No. 22-2870 17

how the relevant legal doctrine … will apply to the factual

situation the officer confronts,” correctional officers are enti-

tled to qualified immunity “unless existing precedent

‘squarely governs’ the specific facts at issue.” Id. (emphasis

added) (quoting Mullenix, 577 U.S. at 308–09); see also Smith

v. Finkley, 10 F.4th 725, 742 (7th Cir. 2021) (observing that spec-

ificity is “particularly important” in excessive force cases, “as

it can be difficult to determine how the law will apply to a

factual situation”).

After examining the specific facts before us, we cannot

conclude that a reasonable correctional officer would have

known that using pepper spray to extract Smith from his cell

violated the Eighth Amendment. Indeed, in Soto—the only

controlling case Smith relies on—we held that the correctional

officer could deploy pepper spray on non-compliant inmates.

See 744 F.2d at 1270–71. No other precedent from our court or

the Supreme Court addresses circumstances close enough to

those here to defeat qualified immunity.

Nor does Smith’s documented medical contraindication to

pepper spray change the outcome. While a close call, we do

not view Smith’s account of what transpired here, though

very concerning, as falling within that narrow category of

cases where the constitutional violation is so severe and bla-

tant as to be obvious. See Hope v. Pelzer, 536 U.S. 730, 738

(2002) (holding that correctional officers were not entitled to

qualified immunity for handcuffing an inmate to a hitching

post for seven hours in extreme heat because “the Eighth

Amendment violation was obvious”); Taylor v. Riojas, 592 U.S.

7, 8–9 (2020) (per curiam) (reversing a court of appeals’s deci-

sion that granted correctional officers qualified immunity for

housing an inmate in a sewage-filled, frigidly cold cell for four

18 No. 22-2870

days because any reasonable officer would know such condi-

tions offend the Eighth Amendment).

We therefore affirm the district court’s grant of summary

judgment for Captain Van Lanen on Smith’s Eighth Amend-

ment excessive force claim.

B

1

We next consider whether the conditions Smith faced dur-

ing his 23 hours in the control cell violated the Eighth Amend-

ment. Here too we conclude that a jury could find in Smith’s

favor.

The Constitution allows restrictive and even harsh condi-

tions of confinement. See Rhodes v. Chapman, 452 U.S. 337, 347

(1981). What the Constitution does not allow, however, is a

deprivation “of the minimal civilized measure of life’s neces-

sities.” Id. A prison official who denies an inmate an “identi-

fiable human need such as food, warmth, or exercise,” Wilson,

501 U.S. at 304, “violates the Eighth Amendment upon exhib-

iting ‘deliberate indifference to a substantial risk of serious

harm to an inmate,’” Thomas v. Blackard, 2 F.4th 716, 719 (7th

Cir. 2021) (quoting Farmer, 511 U.S. at 828). To succeed on his

Eighth Amendment claim, then, Smith must show that Lieu-

tenant Retzlaff and Captain Van Lanen denied him a human

need and did so with deliberate indifference.

Because warmth is one such need, “prisoners have a right

to protection from extreme cold.” Dixon v. Godinez, 114 F.3d

640, 642 (7th Cir. 1997). Whether an inmate’s exposure to cold

rises to a constitutional level depends on “the severity of the

cold; its duration; whether the prisoner has alternative means

to protect himself from the cold; the adequacy of such

No. 22-2870 19

alternatives; as well as whether he must endure other uncom-

fortable conditions as well as cold.” Id. at 644. This fact-inten-

sive inquiry “will often be peculiarly appropriate for resolu-

tion by the trier of facts.” Id. at 643.

Smith spent almost 24 hours in a cell equivalent to the tem-

perature outside. And despite the temperature reaching be-

low freezing at night, he was left naked—given no clothes, no

bedding, and no way to protect himself from the cold. See Wil-

son, 501 U.S. at 304 (observing that a low cell temperature at

night plus failure to issue blankets can combine to create un-

constitutional conditions of confinement). Smith explained

that the extreme cold he experienced overnight caused him

pain and prevented sleep. On these facts, Smith has done

enough to create a genuine dispute of material fact as to

whether these conditions meet the “constitutionally necessary

minimum protection against severe cold.” Dixon, 114 F.3d at

644.

The question then becomes whether Smith has presented

evidence that Captain Van Lanen and Lieutenant Retzlaff

acted with deliberate indifference. This requires us to deter-

mine if a reasonable jury could conclude that the two defend-

ants had actual knowledge that Smith faced “a substantial

risk of serious harm” to his health or safety and, if so, what

steps they took to respond to that risk. Farmer, 511 U.S. at 847.

Beginning with Captain Van Lanen, a few observations

lead us to conclude that a reasonable juror could find that he

was deliberately indifferent to Smith’s exposure to extreme

cold. First, he placed Smith naked in a cold cell surely know-

ing that it was November 28 in Green Bay, Wisconsin when

the temperature would (and did) drop below freezing. Van

Lanen did so with full awareness of Smith’s weakened state

20 No. 22-2870

and pepper spray-induced asthma attack. Second, Van Lanen

chose not to follow his usual practice of making a smock and

bedding available to Smith in the control cell. Nor did he ever

return to the cell that night to discuss clothing, even though

he promised Smith he would do so.

Viewing these facts in the light most favorable to Smith, a

juror could reasonably conclude that Van Lanen was aware of

the risk of serious harm to Smith—left naked in a frigid cell

overnight—but did nothing, making him deliberately indif-

ferent to that risk. Id. at 842 (“Whether a prison official had

the requisite knowledge of a substantial risk is a question of

fact subject to demonstration in the usual ways, including in-

ference from circumstantial evidence, and a factfinder may

conclude that a prison official knew of a substantial risk from

the very fact that the risk was obvious.” (citation omitted));

see also id. at 842 (“[I]t is enough that the official acted or

failed to act despite his knowledge of a substantial risk of se-

rious harm.”).

The analysis is even more straightforward for Lieutenant

Retzlaff. Smith asked Retzlaff to provide him with clothes and

bedding or move him to a warmer cell. Retzlaff did neither. A

jury could therefore infer that he was deliberately indifferent

to the serious health risk arising from Smith’s exposure to ex-

treme cold.

2

Again though, when it comes to defeating a qualified im-

munity defense, establishing a constitutional violation is only

one step, not the finish line. Smith must also show that the

conditions of the control cell were unconstitutional “beyond

No. 22-2870 21

debate.” Ashcroft, 563 U.S. at 741. It is at this step that Smith’s

claim again falls short.

Our case law is clear on the general proposition that in-

mates have a well-established constitutional right to protec-

tion from extreme cold. See, e.g., Henderson v. DeRobertis, 940

F.2d 1055, 1059 (7th Cir. 1991). But this statement sweeps too

broadly for qualified immunity purposes. To overcome the

officers’ immunity defense, Smith needs to show that the spe-

cific conditions he faced in the control cell were unconstitu-

tional.

Once we view the situation at the appropriate level of par-

ticularity, we can locate no case that “squarely governs” Van

Lanen’s or Retzlaff’s conduct. Brosseau, 543 U.S. at 201. Before

today, we had never held it unconstitutional on closely anal-

ogous facts to house an inmate in a cell that ranged in temper-

ature from 25 to 57 degrees over a 23-hour period without

clothes or a way to keep warm.

To be sure, Smith points us to a number of cases where we

determined that cold cell conditions violated an inmate’s

Eighth Amendment rights. But the temperature in those cases

was more extreme, see, e.g., Henderson, 940 F.2d at 1057 (four

days of subzero temperature); Del Raine v. Williford, 32 F.3d

1024, 1031 (7th Cir. 1994) (temperature reached 50 degrees be-

low zero during an inmate’s strip search), or the duration ex-

tended far beyond 23 hours, see, e.g., Lewis v. Lane, 816 F.2d

1165, 1166, 1171 (7th Cir. 1987) (cell temperature was around

53 degrees for two months). And while we credit the pain and

extreme discomfort Smith says he experienced, we cannot

conclude that this constitutional violation was so “obvious”

as to avoid the need to point to a closely analogous case.

Wesby, 583 U.S. at 63 (quoting Brosseau, 543 U.S. at 199).

22 No. 22-2870

That leaves us to affirm the district court’s grant of sum-

mary judgment for Van Lanen and Retzlaff on Smith’s condi-

tions-of-confinement claim.

C

Smith’s final claim concerns the escort from his cell to the

health unit after the pepper spray incident. He contends that

members of the extraction team—Alexander Bonis, John Die-

drick, and Cole Meyer—exercised excessive force by placing

him in chokeholds and bending his wrists. We agree with the

district court’s conclusion that Smith’s characterization of his

escort is “contradicted by the record, so that no reasonable

jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).

Video footage of the extraction confirms that the officers

did not behave maliciously while escorting Smith. Because he

had difficulty sustaining his own weight, two officers sup-

ported Smith by his arms. And despite Smith’s assertion oth-

erwise, the video shows no dragging, chokeholds, or other

misconduct. There being no violation of the Eighth Amend-

ment, we affirm the district court’s grant of summary judg-

ment for the defendants on this claim.

* * *

For these reasons, we AFFIRM the district court’s grant of

summary judgment for the defendants on each of Smith’s

claims.

No. 22-2870 23

HAMILTON, Circuit Judge, concurring in part and

dissenting in part. I agree with most of the analysis and

holdings in Judge Scudder’s opinion for the court. I agree that

a jury could find that defendant Van Lanen violated the

Eighth Amendment by using the pepper spray against

plaintiff Smith, at least where Van Lanen knew of plaintiff’s

special vulnerability to that weapon, but that Van Lanen is

entitled to qualified immunity on that claim. I also agree that,

given the video evidence, we must affirm summary judgment

on plaintiff’s excessive force claim based on the guards’

moving plaintiff to the control cell.

I also agree with the majority’s holding that plaintiff

offered evidence that would allow a jury to find that

defendants Van Lanen and/or Retzlaff imposed conditions of

confinement on plaintiff that violated his Eighth Amendment

rights. Plaintiff has provided evidence that the defendants

intentionally placed him and left him for hours in a cold cell

without clothing or blankets or other protection. The

majority’s holding that a jury could find this deliberate

exposure of a prisoner to extreme cold without protection to

have been cruel and unusual punishment is clear and

important. And the majority wisely chooses to use our

discretion to decide step one of the qualified immunity

analysis—the merits of the claims—on both the pepper spray

claim and the conditions of confinement claim.

I. Qualified Immunity and Deliberate Exposure to Cold

With respect, however, I must dissent from the majority’s

decision to affirm summary judgment for defendants Van

Lanen and Retzlaff on the claim for deliberate exposure to

cold based on the defense of qualified immunity. The majority

reaches that conclusion by applying what the Supreme Court

24 No. 22-2870

has called “a rigid, overreliance on factual similarity.” Hope v.

Pelzer, 536 U.S. 730, 742 (2002). As the majority explains here:

“Before today, we had never held it unconstitutional on

closely analogous facts to house an inmate in a cell that

ranged in temperature from 25 to 57 degrees over a 23-hour

period without clothes or a way to keep warm.” Ante at 21.

That observation is literally correct but certainly should not

be decisive. It loses sight of the long-established and more

general standard for qualified immunity: whether a reasona-

ble official in the defendant’s position would have under-

stood that his actions were unlawful. E.g., Ziglar v. Abbasi, 582

U.S. 120, 152 (2017); Hope, 536 U.S. at 739; Saucier v. Katz, 533

U.S. 194, 206 (2001); Anderson v. Creighton, 483 U.S. 635, 640

(1987); Manery v. Lee, 124 F.4th 1073, 1080 (7th Cir. 2025); Dox-

tator v. O’Brien, 39 F.4th 852, 863 (7th Cir. 2022).

Prisoners have a well-established right not to be subjected

to extreme cold, at least without protection from it. For

purposes of summary judgment and this appeal, we must

assume that these defendants deliberately placed a prisoner

“in a cell that ranged in temperature from 25 to 57 degrees

over a 23-hour period without clothes or a way to keep

warm.” Ante at 21. As the majority opinion explains, several

pieces of evidence—including defendant Van Lanen’s typical

practice of providing inmates with a smock, his failure to

return to discuss clothing with Smith, and the Green Bay

weather in late November—would allow a reasonable jury to

infer that Van Lanen, Retzlaff, or both were deliberately

indifferent to plaintiff Smith’s unprotected exposure to the

cold. I respectfully submit that it should have been obvious to

a reasonable prison official that such conditions violate a

prisoner’s right not to be subjected to cruel and unusual

punishment.

No. 22-2870 25

The Supreme Court and our court have long recognized

that where the constitutional violation is sufficiently obvious,

a plaintiff need not always point to a case that is factually on

all fours. Hope, 536 U.S. at 740–41; Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011) (collecting cases and explaining: “We do not

require a case directly on point, but existing precedent must

have placed the statutory or constitutional question beyond

debate.”); Schimandle v. Dekalb County Sheriff’s Office, 114 F.4th

648, 655 (7th Cir. 2024) (plaintiff need not point to an “identi-

cal case”); Lopez v. Sheriff of Cook County, 993 F.3d 981, 988 (7th

Cir. 2021) (“The prong-two clearly-established-law assess-

ment does not require a case with identical factual circum-

stances, lest qualified immunity become absolute immun-

ity.”), citing Kisela v. Hughes, 584 U.S. 100, 104 (2018). Plaintiff

has offered evidence that defendants chose to punish his mis-

conduct by, in effect, refrigerating him—naked and unpro-

tected—for hours. Plaintiff’s evidence is that Van Lanen or

Retzlaff or both deliberately exposed him to that cold for pur-

poses of “control.” That last word is a euphemistic way of say-

ing they deliberately subjected him to a practice widely rec-

ognized in law as a form of torture to coerce him to change

his behavior.

The proper question for qualified immunity is whether a

reasonable prison official would have understood it to be

unlawful to deliberately expose a naked prisoner to cold

conditions in an effort to coerce different behavior. I think the

answer is obviously yes. That is the answer based on

elementary notions of human decency and dignity. And the

answer does not depend on exactly how cold it was or exactly

how many hours the prisoner suffered.

26 No. 22-2870

If more specific support is needed for the proposition that

it is obviously unconstitutional to deliberately subject a naked

prisoner to temperatures equivalent to and colder than a re-

frigerator, I offer that support in three forms. First, United

States law and international covenants to which the United

States is a party recognize that deliberately subjecting a pris-

oner to extreme cold is a form of torture. This means that the

actions alleged here could be found to have violated both

United States and international law. Second, a good deal of

prior case law deals with prison officials trying to manage

when prison heating systems break down or when poor

maintenance of prison buildings makes them difficult to heat

adequately. The general principles applied in those cases

should have made it obvious that deliberately subjecting a na-

ked prisoner to extreme temperatures is beyond the pale of

arguably tolerable conduct. A third form of support is the

complete absence of any attempt here, by defendants or the

majority opinion, to argue how an official in this situation

might have thought this deliberate refrigeration of a naked

human being could have been permissible.

II. The Law and Practice of Torture

Federal law makes it a crime for a person to engage in tor-

ture outside the United States. Torture Act, 18 U.S.C. §§ 2340

& 2340A. Torture is defined as “an act committed by a person

acting under the color of law specifically intended to inflict

severe physical or mental pain or suffering (other than pain

or suffering incidental to lawful sanctions) upon another per-

son within his custody or physical control.” § 2340(1). The

United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (most fa-

miliar to our court from immigration cases and widely known

No. 22-2870 27

as the CAT), to which the United States is a party, defines tor-

ture as:

any act by which severe pain or suffering,

whether physical or mental, is intentionally

inflicted on a person for such purposes as

obtaining from him or a third person

information or a confession, punishing him for

an act he or a third person has committed or is

suspected of having committed, or intimidating

or coercing him or a third person, or for any

reason based on discrimination of any kind,

when such pain or suffering is inflicted by or at

the instigation of or with the consent or

acquiescence of a public official or other person

acting in an official capacity. It does not include

pain or suffering arising only from, inherent in

or incidental to lawful sanctions.

United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment art. 1, Dec.

10, 1984, S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 113–14; see

also 8 C.F.R. § 208.18(a)(1) (incorporating a very similar defi-

nition into domestic law for asylum purposes); Torture Victim

Protection Act of 1991, 106 Stat. 73 § 3(b)(1), note following 28

U.S.C. § 1350 (defining torture in similar terms in statute cre-

ating private right of action against torturers).

Deliberately exposing a naked prisoner to extreme cold as

asserted here easily fits within both definitions. For the rea-

sons explained in the majority opinion, a jury could find that

the defendants “specifically intended to inflict severe physical

or mental pain or suffering” on plaintiff Smith while he was

in their custody. 18 U.S.C. § 2340(1). A jury could likewise

28 No. 22-2870

find that plaintiff was placed in the literally freezing control

cell, in order to punish him for an act he committed, “with the

consent or acquiescence of a public official or other person

acting in an official capacity” in violation of the CAT.

The torture definitions in both the Torture Act and the

CAT exclude pain and suffering inflicted as part of “lawful

sanctions,” but to my knowledge, there is no plausible claim

here of any explicit or implicit authority in law to deliberately

expose naked Wisconsin prisoners to extreme cold as part of

their sentences. Defendants have not tried to argue here that

they were authorized by law to deliberately refrigerate a

naked prisoner. The defendants have argued instead that

plaintiff has the facts wrong, but that is a matter for trial rather

than summary judgment.

Extensive international authorities make the point that

these general definitions of torture encompass deliberate use

of extreme cold to cause pain and suffering. The United Na-

tions Committee Against Torture monitors implementation of

the CAT. It has long explained that “using cold air to chill”

can amount to torture under the Convention. Rep. of the U.N.

Committee Against Torture, Israel (“Report on Israel”), U.N.

GAOR, 52nd Sess., Supp. No. 44 at 38 ¶ 257, U.N. Doc. A/52/44

(Sept. 10, 1997). The same Committee Against Torture also

adopted a similar finding from a local human rights body re-

garding practices in Mexico, explaining that torture in prison

included “being undressed and kept in a freezing, air-condi-

tioned room for days at a time.” U.N. Committee Against Tor-

ture, 30th Sess., Report on Mexico at 35–36 ¶ 165, U.N. Doc.

CAT/C/75 (May 26, 2003). More generally, the United Nations

Special Rapporteur of the Commission on Human Rights ob-

served in 2004: “The jurisprudence of both international and

No. 22-2870 29

regional human rights mechanisms is unanimous in stating”

that interrogation methods including “using cold air to chill”

violate the “prohibition of torture and ill treatment.” U.N.

Special Rapporteur of the Commission on Human Rights, Tor-

ture and other cruel, inhuman, or degrading treatment or punish-

ment, ¶ 17, U.N. Doc. A/59/324 (Sept. 1, 2004), quoting Report

on Israel, supra, at ¶ 257.

United States case law on the deliberate use of cold against

prisoners is, thankfully, relatively sparse, but the available

case law clearly indicates it can be a form of torture and that

courts virtually take for granted the fact it is unlawful. 1 In

Lhanzom v. Gonzales, 430 F.3d 833 (7th Cir. 2005), for instance,

this court remanded a person’s claim for relief under the Con-

vention Against Torture based on State Department reports

documenting torture of Chinese prisoners in Tibet, including

“electric shocks, exposure to cold, and severe beating.” Id. at

848–49, citing U.S. Department of State, 2005 Country Report

on Human Rights Practices: China (March 8, 2006)

(https://perma.cc/39K2-Z35H).

Several other cases support the principle. In Al Shimari v.

CACI Premier Technology, Inc., 300 F. Supp. 3d 758 (E.D. Va.

1 Members of this court had no difficulty finding that conduct includ-

ing deliberate exposure of detainees to cold air could amount to torture in

Vance v. Rumsfeld, 701 F.3d 193, 205–06 (7th Cir. 2012) (en banc) (Wood, J.,

concurring in the judgment); id. at 213 (Hamilton, J., dissenting). The Vance

majority did not disagree, but did not decide the issue only because the

defense in that case did not even try to dispute whether the conduct al-

leged, including “prolonged exposure to cold,” amounted to torture. Id. at

196 (en banc majority); see also Vance v. Rumsfeld, 653 F.3d 591, 597, 610–

11 (7th Cir. 2011) (vacated panel opinion) (noting that the plaintiffs’ cells

were kept “intolerably cold” and that such conditions were clearly unlaw-

ful).

30 No. 22-2870

2018), the plaintiffs had been prisoners at the infamous Abu

Ghraib complex operated by the United States in Iraq.

Plaintiffs offered evidence that U.S. military contractors had

subjected them to a range of abuses that amounted to torture,

including “using cold air to chill.” Id. at 781–82 (internal

quotation marks omitted); see also id. at 764, 769, 770

(describing conduct in that case, including deliberately

imposed cold). The court carefully reviewed United States

and international law and allowed some claims to go forward

on the theory that the defendants purposefully aided

violations of international law by facilitating abuses that

amounted to torture and/or cruel, inhuman, or degrading

treatment. See, e.g., id. at 777–82 (determining jurisdiction

under torture statutes). It explained that “international law

and domestic executive and military sources … clearly

identify the abuse experienced by plaintiffs as torture.” Id. at

781. 2

Similarly, in Cicippio v. Islamic Republic of Iran, 18 F. Supp.

2d 62 (D.D.C. 1998), a group of former political hostages

2 Courts and executive agencies have likewise characterized as torture

the use of cold water in interrogation and/or confinement. See, e.g., In re

Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460, 1463 (D. Hawaii

1995) (characterizing as torture the practice of forcing a “detainee while

wet and naked to sit before an air conditioner often while sitting on a block

of ice”); U.S. Department of State, 2005 Country Report on Human Rights

Practices: Egypt (March 8, 2006) (https://perma.cc/8T3X-3NJF) (torture

practices included “dousing victims with cold water”); U.S. Department

of State, 2004 Country Report on Human Rights Practices: Yemen (Feb. 28,

2005) (https://perma.cc/35NF-V9PX). While leaving an inmate wet and

cold is distinct from just cold, these authorities further support the idea

that a reasonable official should have known it is unlawful to place a na-

ked inmate in freezing or near-freezing conditions.

No. 22-2870 31

brought claims alleging torture by Iranian officials. One plain-

tiff was kept chained on a balcony for an entire winter, during

which he developed frostbite on his hands and feet. Id. at 66.

The court ruled that he had been “tortured” as defined by an

old version of the Foreign Sovereign Immunities Act, 28

U.S.C. § 1605(e) (1997), and entered default judgment for the

plaintiffs. Id. at 69.

Weighed against these authorities, which are only a

sample of a broad international literature on the law and

practice of torture, I have found no contrary authorities

suggesting that deliberate exposure of a prisoner, especially a

naked prisoner, to extreme cold is an accepted and lawful

means of punishment. In other words, I find no legal

foundation for a prison official in these defendants’

circumstances to have believed his actions could have been

lawful.

I am not suggesting that conditions of confinement falling

short of torture are acceptable under the Eighth Amendment.

But our qualified immunity analysis should recognize action-

able violations, without qualified immunity, when officials

deliberately impose conditions that amount to torture. See Pa-

dilla v. Yoo, 678 F.3d 748, 763 & n.10 (9th Cir. 2012) (stating that

“the unconstitutionality of torturing a United States citizen

was ‘beyond debate’ by 2001” and collecting authorities for

the principle).

III. Broken Furnaces and Drafty Prisons

A more extensive body of case law concerns prison heat-

ing systems that failed in cold weather or drafty prison build-

ings that were difficult to keep humanely warm in cold

weather. The majority cites several of these cases. See ante at

32 No. 22-2870

21, citing Del Raine v. Williford, 32 F.3d 1024, 1031 (7th Cir.

1994); Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir.

1991); Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987). It none-

theless concludes that they do not control the outcome here

because they do not show that it is unlawful to “house an in-

mate in a cell that ranged in temperature from 25 to 57 degrees

over a 23-hour period without clothes or a way to keep

warm.” Ante at 21.

Respectfully, that conclusion misses the point of the cases

that is most relevant here. We made clear decades ago in these

cases that when a prisoner is being subjected to temperatures

like those alleged here—for any reason, including without

fault of prison officials—prison officials have a duty to take

corrective measures, such as providing extra protective cloth-

ing and bedding and repairing heating systems or buildings

within a reasonable time. See, e.g., Henderson, 940 F.2d at

1059–61 (qualified immunity reversed when prison heating

system malfunctioned and defendants took four days to fix it;

collecting cases for principle that constitution requires prison-

ers to “be provided with adequate heat and shelter”); Lewis,

816 F.2d at 1171 (vacating summary judgment when plaintiffs

provided evidence that defendants maintained cell block be-

tween 52 and 54 degrees for several months).

The Supreme Court made the same point more than thirty

years ago, writing as self-evident that “a low cell temperature

at night combined with a failure to issue blankets” may estab-

lish an Eighth Amendment violation. Wilson v. Seiter, 501 U.S.

294, 304 (1991). More recent decisions from this court have re-

affirmed the point. See, e.g., Hill v. Nicholson, 829 F. App’x 141,

142 (7th Cir. 2020) (plaintiff stated Eighth Amendment claim

when officers let him take only cold showers and his cell block

No. 22-2870 33

was “extremely cold”); Budd v. Motley, 711 F.3d 840, 843 (7th

Cir. 2013) (“[W]e have observed that jails must meet minimal

standards of habitability. This includes adequate bedding and

protection from cold, both of which were allegedly lacking

here.”); Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir. 1996)

(reversing dismissal when prison officials failed to provide

blankets despite “extremely cold indoor air temperature”).

Those cases did not draw bright lines based on exactly

how cold was too cold or exactly how long the cold conditions

lasted. They did make clear that prison officials have a duty

under the United States Constitution to respond quickly with

protective clothing and bedding. The broken-furnace/drafty-

cell cases cannot reasonably be read as offering any support

for the cruel idea that a prison official could deliberately subject

a naked and unprotected prisoner to extreme cold for any

length of time.

We recognized that point in Gillis v. Litscher, 468 F.3d 488

(7th Cir. 2006), a case with facts extraordinarily similar to this

case. In Gillis, Wisconsin prison officials left an inmate naked

in his cell—without clothing, bedding, or a mattress—for five

days as part of a “Behavioral Modification Program.” Id. at

489–90. The cell’s vent blew cold air, and the prisoner said that

he had to walk around his cell for 14 hours a day just to stay

warm. Id. at 490. We found that the plaintiff had created an

issue of fact sufficient to get his Eighth Amendment claim

past summary judgment. We specifically addressed the inten-

tional nature of the defendants’ conduct, explaining that some

evidence in the record indicated that the prison officials used

Behavioral Modification Programs “as a way to deal with in-

mates without regard” for Wisconsin law. Id. at 494. We also

rejected the defendants’ qualified immunity defense,

34 No. 22-2870

explaining tersely that it was well-established that “denial of

shelter, heat, and hygiene items implicated an inmate’s con-

stitutional rights.” Id. at 495.

Gillis helps show why qualified immunity is inappropriate

here. In this case, as in Gillis, prison officials altered the

conditions of confinement to motivate a change in inmate

behavior. In both cases, the change involved a denial of

clothing and prolonged exposure to cold air. The deliberate

choice by prison officials to expose inmates to chilling

conditions was then—and is still now—a clear violation of the

Eighth Amendment.

Gillis is a rare case because, as noted, case law on deliberate

exposure of unprotected prisoners to cold is thankfully

sparse. But our case law makes unequivocally clear that pris-

oners have a right to adequate heat. Similarly, the Lhanzom, Al

Shimari, and Cicippio cases discussed above all recognized de-

liberate exposure of a prisoner to extreme cold as a form of

torture. And Gillis made clear that cold conditions cannot be

constitutionally used as part of prison discipline.

IV. The Absence of a Counter-Theory

My third form of support comes from the absence of any

theory, from these defendants or from the majority opinion,

as to how these defendants might reasonably have thought

they could lawfully refrigerate a naked human being for

hours.

One might respond that the burden to defeat qualified im-

munity is on the plaintiff, not the defendant. That’s true as a

matter of law. But it is equally true that the plaintiff need not

always come forward with case law showing that the same or

even closely analogous conduct has been held unlawful

No. 22-2870 35

where the violation is obvious. The canonical case on this

point is Hope v. Pelzer, where the Supreme Court reversed a

grant of qualified immunity despite the absence of closely

analogous case law. 536 U.S. at 744–46. The violation was so

“obvious” that the unlawfulness of the punishment should

have been apparent to a reasonable prison official. Id. at 741.

The plaintiff in Hope was an Alabama prisoner who had

allegedly engaged in misconduct while on a chain-gang road

crew. As punishment, he had his shirt removed, was shackled

to a post in a painful position, and was left in the Alabama

sun for seven hours with very little water. The Supreme Court

held that the illegal character of that punishment was suffi-

ciently obvious that qualified immunity was not available. Id.

The Court of Appeals in Hope had reasoned, much like the

majority opinion here, that qualified immunity applied unless

plaintiff could show a finding of a constitutional violation in

a previous case on facts “’materially similar’ to Hope’s

situation.” Id. at 739, quoting Hope v. Pelzer, 240 F.3d 975, 981

(11th Cir. 2001). The Supreme Court said this “rigid gloss” on

the qualified immunity standard was “not consistent with our

cases.” Id. It explained that the contours of an asserted

constitutional right “must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is

protected by qualified immunity unless the very action in

question has previously been held unlawful….“ Id., quoting

Anderson, 483 U.S. at 640.

The ruling in Hope was not a simple “we know it when we

see it” reaction to disturbing facts. The Court took care to look

at other cases and administrative actions concerning the Ala-

bama practice of shackling prisoners uncomfortably in the

36 No. 22-2870

heat as punishment, finding that the defendants had ample

notice that the practice was not permissible under the law. 536

U.S. at 741–45. The signals in those cases and administrative

actions were similar to the signals relevant here, from both the

“cold as torture” authorities and the broken-furnace and

drafty-cell cases.

We do not need a case exactly on point to reject the

qualified immunity defense here, at least on the facts we must

treat as true on appeal. While I am pleased to join most of the

majority opinion, including its important holding that the

alleged intentional exposure to cold was sufficient to violate

the Eighth Amendment, I respectfully dissent from the

portion of the opinion and judgment affirming summary

judgment on the conditions of confinement claim based on

qualified immunity.