Alex Pearson v. Anthony Ramos

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 desig-nee (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 *888 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 , 12 S.Ct. 693 , 36 L.Ed. 450 (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 *889 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 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (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 , 114 S.Ct. 1970 (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 , 114 S.Ct. 1970 (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 , 114 S.Ct. 1970 ; 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 *890 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 *891 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,” Op. at 885, 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. Shansky, 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. “[Gjovernment 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 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (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.

. 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.

. 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.

. 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.

. 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.

. See Wilson v. Layne, 526 U.S. 603, 609 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999); County of Sacramento v. Lewis, 523 U.S. 833 , 841 n. 5, 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998); Siegert v. Gilley, 500 U.S. 226, 232-33 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991).

. See, e.g., Bass v. Perrin, 170 F.3d 1312 , 1316-17 (11th Cir.1999); LeMaire v. Maass, *890 12 F.3d 1444, 1457-58 (9th Cir.1993).