Pearson, Alex v. Ramos, Anthony

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 and 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

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 from 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, 208 F.3d 610, 614 (7th Cir.

2000); Retired Chicago Police Ass’n v. City of

Chicago, 7 F.3d 584, 608 (7th Cir. 1993);

Chambers v. Ohio Dept. of Human Services, 145

F.3d 793, 796-97 (6th Cir. 1998). This principle

is as applicable to rulings on immunity as to any

other interlocutory rulings, SEC v. Quinn, 997

F.2d 287 (7th Cir. 1993); Goff v. Bise, 173 F.3d

1068, 1072 (8th Cir. 1999); Ernst v. Child &

Youth Services of Chester County, 108 F.3d 486,

492-93 (3d Cir. 1997); Kiser v. Garrett, 67 F.3d

1166, 1169 (5th Cir. 1995); but see Price v.

Kramer, 200 F.3d 1237, 1243-44 (9th Cir. 2000),

although as we explained in Quinn the defendant

who postpones his immunity appeal till after

trial forfeits one of the rights that immunity

confers, the right not to be tried at all.

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,

523 U.S. 833, 841 n. 5 (1998); Siegert v. Gilley,

500 U.S. 226, 232-33 (1991). Whether this rule is

absolute may be doubted, for reasons explained in

Kalka v. Hawk, 215 F.3d 90, 94-98 (D.C. Cir.

2000), and Horne v. Coughlin, 191 F.3d 244 (2d

Cir. 1999), but the reasons are inapplicable

here. The issue on the merits is important and

should be resolved without further delay. We

shall reverse the judgment on the merits, and so

moot the issue of immunity. But we cannot forbear

to express our surprise at the action of the

district court in rejecting the defense of

immunity. Since no one could believe that a

single 90-day denial of yard privileges would be

a cruel and unusual punishment for a serious

violation of prison disciplinary rules, the

dispositive issue in this case is whether the

stacking of such sanctions to the point of

depriving a prisoner of an entire year of yard

access is cruel and unusual punishment; and as

there was no case law when the defendant acted

indicating that it is and no tenable argument

then or now that stacking so clearly violated the

Eighth Amendment that an official in the

defendant’s position would have had to know that

it did, even without any guidance from case law,

it is obvious that the immunity defense should

have been sustained. Wilson v. Layne, supra, 526

U.S. at 614-15; Anderson v. Creighton, 483 U.S.

635, 639-41 (1987); Burgess v. Lowery, 201 F.3d

942, 944-45 (7th Cir. 2000); Anderson v. Romero,

72 F.3d 518, 526-27 (7th Cir. 1995); Eberhardt v.

O’Malley, 17 F.3d 1023, 1028 (7th Cir. 1994);

McBride v. Village of Michiana, 100 F.3d 457, 460

(6th Cir. 1996); Buonocore v. Harris, 65 F.3d

347, 356-57 (4th Cir. 1995).

On to the merits. In Davenport v. DeRobertis,

844 F.2d 1310 (7th Cir. 1988), we upheld, as not

clearly erroneous, a judge’s finding that the

Eighth Amendment entitled prisoners held in

segregation for 90 days or more to five hours of

out-of-cell exercise a week. See also Anderson v.

Romero, supra, 72 F.3d at 527-28; Jamison-Bey v.

Thieret, 867 F.2d 1046 (7th Cir. 1989); Allen v.

Sakai, 40 F.3d 1001, 1004 (9th Cir. 1994).

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 reference 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, 130 F.3d 754, 762-64 (7th

Cir. 1997); Caldwell v. Miller, 790 F.2d 589,

600-01 (7th Cir. 1986).

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

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, 329 U.S. 459, 464

(1947); In re Kemmler, 136 U.S. 436, 446-47

(1890); James v. Milwaukee County, 956 F.2d 696,

698-99 (7th Cir. 1992). Even a mass murderer is

not to be executed by being drawn and quartered.

In addition, however, forms of punishment that

are permitted for serious crimes may violate the

clause if imposed for trivial ones. Solem v.

Helm, 463 U.S. 277 (1983); Rice v. Cooper, 148

F.3d 747, 752 (7th Cir. 1998); Leslie v. Doyle,

125 F.3d 1132, 1135 (7th Cir. 1997); United

States v. Saccoccia, 58 F.3d 754, 787-89 (1st

Cir. 1995). That is, there is a norm of

proportionality (though attenuated in recent

decisions of the Supreme Court, notably Harmelin

v. Michigan, 501 U.S. 957, 990-94 (1991), we

continue to recognize it, Henry v. Page, 223 F.3d

477, 482 (7th Cir. 2000)), and we can imagine the

norm’s being violated by imposing a 90-day denial

of yard privileges for some utterly trivial

infraction of the prison’s disciplinary rules,

though we cannot find any case to support such a

suggestion.

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 hospitalization.

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 other 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

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, 845 F.2d 1451, 1456 (7th Cir.

1988) (per curiam); Bass v. Perrin, 170 F.3d

1312, 1316-17 (11th Cir. 1999); LeMaire v. Maass,

12 F.3d 1444, 1457-58 (9th Cir. 1993), which

casts still further doubt on the district court’s

denial of qualified immunity.

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) created 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, 71 F.3d 194,

197 (5th Cir. 1995); cf. Fedro v. Reno, 21 F.3d

1391, 1396-97 (7th Cir. 1994); In re TMI

Litigation, 193 F.3d 613, 680 (3d Cir. 1999);

Summers v. Missouri Pacific R.R. System, 132 F.3d

599, 604 (10th Cir. 1997). There was no expert

testimony concerning the effects of the denial of

yard privileges on the plaintiff’s physical or

mental health, though an expert was permitted to

answer a hypothetical question concerning the

possible effect of protracted solitary

confinement on prisoners in general.

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 Amendment.

"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, 2 Atl. 586, 593 (Vt.

1886), quoted in O’Neil v. Vermont, 144 U.S. 323,

331 (1892) (emphasis in original); see also

Hawkins v. Hargett, 200 F.3d 1279, 1285 n. 5

(10th Cir. 1999); United States v. Aiello, 864

F.2d 257, 265 (2d Cir. 1988). Every disciplinary

sanction, like every sentence, must be treated

separately, not cumulatively, for purposes of

determining whether it is cruel and unusual. Any

other rule would permit a defendant, at the end

of a long criminal career, to ask a court to tack

together all his criminal punishments and decide

whether, had they been a single punishment, they

(it) would have been cruel and unusual. Suppose a

defendant sentenced to death had previously

served 20 years in prison for an unrelated crime.

Would it be open to him to argue that imprisoning

a person for 20 years and then executing him

constitutes cruel and unusual punishment? We

think not.

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 damages in a civil

rights case, on which see Smith v. Wade, 461 U.S.

30, 56 (1983); Kolstad v. American Dental Ass’n,

527 U.S. 526, 535-36 (1999); Kyle v. Patterson,

196 F.3d 695, 697-98 (7th Cir. 1999);

Merriweather v. Family Dollar Stores of Indiana,

Inc., 103 F.3d 576, 581-82 (7th Cir. 1996);

Iacobucci v. Boulter, 193 F.3d 14, 25-26 (1st

Cir. 1999), were not remotely satisfied here.

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, 501 U.S. at 303; In re Long Term

Administrative Segregration of Inmates Designated

as Five Percenters, 174 F.3d 464, 471-72 (4th

Cir. 1999); Bass v. Perrin, supra, 170 F.3d at

1317.

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

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 committee’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

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, 144 U.S. 323,

331 (1892).

This general principle of criminal law is

unexceptional. With respect to criminal sentences

imposed by a court, it is well-established in our

jurisprudence. The 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 official 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, 511 U.S. 825,

847 (1994). This test has an objective and a

subjective component. To satisfy the objective

component, the inmate must establish that the

alleged deprivation is "objectively, sufficiently

serious." Farmer, 511 U.S. at 834 (internal

quotation marks and citations omitted). To be

sufficiently serious, the official’s action or

omission must result in "the denial of the

minimal civilized measure of life’s necessities."

Farmer, 511 U.S. at 834 (internal quotation marks

and citations omitted). This circuit has said

that only "extreme deprivations" make out a

"conditions-of-confinement claim." Henderson v.

Sheahan, 196 F.3d 839, 845 (7th Cir. 2000)

(internal quotation marks and citations omitted).

To satisfy the subjective component, the inmate

must demonstrate that the prison official knew of

a substantial risk of serious injury. The

official must be aware of the facts from which

the inference could be drawn that a substantial

risk of serious harm exists. See Farmer, 511 U.S.

at 842; Henderson, 196 F.3d at 845.

There can be no doubt--indeed it is common

ground between the parties and admitted by the

panel majority--that a failure to afford

prisoners an adequate opportunity to exercise can

state an Eighth Amendment claim. See Antonelli v.

Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996).

Although Mr. Ramos is correct that cases like

Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.

1988), do not set out the constitutional minimum

for exercise time, the principles that can be

drawn from this circuit’s case law manifest a

clear aversion to denying prisoners outside

exercise time for extended periods absent an

acute need to do so. Davenport and Harris v.

Fleming, 839 F.2d 1232 (7th Cir. 1988), strongly

suggest that a total restriction is acceptable

only when that restriction is short term. See

Davenport, 844 F.2d at 1315 ("[W]e are impressed

by the number of decisions that hold or suggest

that a failure to provide inmates (confined for

more than a very short period . . .) with the

opportunity for at least five hours a week of

exercise outside the cell raises serious

constitutional questions."); Harris, 839 F.2d at

1236 (emphasizing that the restriction was only

four weeks). One year is not short term. No

doubt, there are situations in which

considerations of prison security require such a

drastic curtailment of an inmate’s movement.

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. 12 F.3d at 1457-58. This circuit as well has

acknowledged this exception. See Anderson v.

Romero, 72 F.3d 518, 527 (7th Cir. 1995) ("To

deny a prisoner all opportunity for exercise

outside of his cell would, the cases suggest,

violate the Eighth Amendment unless the prisoner

posed an acute security risk if allowed out of

his cell for even a short time.").

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 received 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. 12 F.3d at 1464 (Noonan, J.,

dissenting).

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 factual 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 these 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 process 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,

28 F.3d 666, 673 (7th Cir. 1994). Today’s opinion

marks a decided mistrust in that institution and

a concomitant endorsement of the view that judges

are endowed with a superior view of what our

society ought to tolerate in the treatment of

prisoners.

5.

If all the facts of this case are construed in

favor of Mr. Pearson, there certainly is

sufficient evidence 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, 457 U.S. 800, 818

(1982). The law must be clear when the defendant

official acted. See, e.g., Rakovich v. Wade, 850

F.2d 1180, 1208-09 (7th Cir. 1988) (en banc).

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 another 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 been 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 prison 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

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, 526 U.S. 603, 609 (1999);

County of Sacramento v. Lewis, 523 U.S. 833, 841

n.5 (1998); Siegent v. Gilley, 500 U.S. 226, 232-

33 (1991).

/6 See, e.g., Bass v. Perrin, 170 F.3d 1312, 1316-17

(11th Cir. 1999); LeMaire v. Maass, 12 F.3d 1444,

1457-58 (9th Cir. 1993).