Petition for Writ of Certiorari — Lane v. Davenport

eS

88-331 [-

, Supreme Court, U.S,

No. q) FILED

AUG 22 i988

: CLERK

Supreme Court of the Anited State:

Octoser TERM, 1988

MICHAEL LANE, MICHAEL O’LEARY,

and RICHARD W. DeROBERTIS,

Petitioners,

VB.

JAMES DAVENPORT, CHARLES RICHMOND,

HECTOR RIVERA, CARL LUCAS, ROGER PENNIE,

CHARLES TERRY, and MARK McBRIDE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROBERT J. RUIZ

Solicitor General, State of Illinois

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3312

Attorneys for Petitioners

Rosatyn B. Kapian *

VaLeRIE J. PEER

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, Tlinois 60601

(312) 917-3698

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 34176—55—8-22-88)

i

QUESTIONS PRESENTED

I. Whether the determination that conditions of incarcer-

ation violate the Eighth Amendment’s proscription against

cruel and unusual punishment is a question of law sub-

ject to de novo review by a court of appeals.

II. Whether petitioners waived their argument that

such a determination is a question of law before the court

of appeals.

III. Whether petitioners denied respondents their right

to be free from cruel and unusual punishment under the

Eighth Amendment as a matter of law.

li

TABLE OF CONTENTS

QUESTIONS PRESENTED ................-- i

TABLE OF AUTHORITIES ................. ili

OPINIONS BELOW ........ccccccccccccscens 1

JURISDICTION |... sien ee 2

STATUTE INVOLVED ..............-seeeee- 2

STATEMENT OF THE CASE ..............-. 3

REASONS FOR GRANTING THE WRIT .... 5

I

WHETHER CONDITIONS OF INCARCERA-

TION VIOLATE THE EIGHTH AMENDMENT’S

PROSCRIPTION AGAINST CRUEL AND UN-

USUAL PUNISHMENT IS A QUESTION OF

LAW AND NOT OF FACT ..........-.-.-: 6

Il.

THE DEFENDANTS DID NOT WAIVE THE

ISSUE OF THE APPROPRIATE STANDARD

OF REVIEW ...ccccscscccnesncsaenescsss 9

CONCLUSION ...0.0.05ssscsuussuuneeeeueeen 10

ili

TABLE OF AUTHORITIES

Cases

Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir.

DME PIGAGL ADDR GUNG a Skee ded dc0 bere.

Hartford Accident and Indemnity Co. v. Sullivan,

846 F.2d 377 (7th Cir. 1988) ..............

Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88

i ee ses ei 6 cedseeee

Mucha v. King, 792 F.2d 602 (7th Cir. 1986) ..

Pullman-Standard v. Swint, 456 U.S. 273, 102

S.Ct. 1781, 72 L.Ed.2d 66 (1982) ..........

Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392,

I OE 6 a ais's vices cassaacdacec

Statutes

EE a

EE NaS bd necseWascencdiwcnessones

28 U.S.C. §§ 1331, 1343(aX3) and 1343(aX4) ..

a is veka ha cn sake ecenases

ae ss ls bee W aa de vaw kk We

EE an ee

PAGE

In Tue

Supreme Court of the Anited States

Ocroser Term, 1988

MICHAEL LANE, MICHAEL O’LEARY,

and RICHARD W. DeROBERTIS,

Petitioners,

vs.

JAMES DAVENPORT, CHARLES RICHMOND,

HECTOR RIVERA, CARL LUCAS, ROGER PENNIE,

CHARLES TERRY, and MARK McBRIDE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Michael P. Lane, Michael O’ Leary and Richard

DeRobertis, respectfully pray that a writ of certiorari

issue to review the opinion and judgment of the United

States Court of Appeals for the Seventh Circuit entered

in this case on April 18, 1988, and modified on petitioners’

petition for rehearing May 23, 1988.

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported at 844 F.2d 1310 (7th Cir. 1988) and is attached

~

as an appendix. (App. A). The opinion was modified upon

denial of petitioners’ petition for rehearing. The order

modifying the opinion, issued May 23, 1988, is attached

as an appendix. (App. B). The opinion of the United States

District Court for the Northern District of Illinois, issued

January 30, 1987, is reported at 653 F. Supp. 643 (N.D.

Il]. 1987), and is also attached as an appendix. (App. C).

JURISDICTION

The respondents’ ciaim was brought under the Eighth

and Fourteenth Amendments and 42 U.S.C. § 1983. The

jurisdiction of the district court was based on the exist-

ence of a federal question. 28 U.S.C. §§ 1331, 1343(aX3)

and 1343(aX4). The basis of jurisdiction in the Court of

Appeals was 28 U.S.C. § 1291. Jurisdiction in this Court

vests pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

42 U.S.C. § 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage of any State or Territory or

the District of Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the “apy; of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress.

alien

STATEMENT OF THE CASE

Stateville Correctional Center is a maximum security

prison operated by the Illinois Department of Corrections.

Inmates who are found to have violated one of the rules

or regulations in effect at Stateville may be placed in a

segregation unit within Stateville. Those inmates placed

in segregation have performed violent or disruptive acts

within the institution. At all times relevant, inmates in

the segregation unit were provided with one hour of ex-

ercise outside of their cell and one shower per week. In

January, 1985, the segregation unit was moved to a newly

constructed facility.

The respondent class of inmates brought this action

under 42 U.S.C. § 1983 seeking damages and injunctive

relief from petitioners, officials of the Illinois Department

of Corrections. The class consisted of inmates incarcerated

in the segregation unit at Stateville for 90 or more con-

secutive days. Respondents alleged that the conditions in

the segregation unit, particularly with respect to the op-

portunity to exercise and shower, were so substandard

as to violate the Eighth Amendment’s proscription against

cruel and unusual punishment. The named petitioners

were Michael Lane, Director of the Illinois Department

of Corrections; Richard DeRobertis, warden at Stateville

at the time the action was filed; and Michael O’Leary,

who succeeded DeRobertis as warden during the penden-

cy of the case.

A jury trial was had on respondents’ claim for damages.

The jury awarded each named respondent one dollar in

compensatory and one dollar in punitive damages. The

district court set aside the jury’s verdict, however, on

lies

the ground that the petitioners were immune under the

Eleventh Amendment from liability for damages.

The district court then entered judgment against the

petitioners on the respondents’ claims for injunctive relief.

Based on the totality of circumstances, the court found

that the provision of only one hour of exercise and one

shower per week constituted cruel and unusual punish-

ment. According to the court, limited access to exercise

outside the cell and to showers amounted to deprivation

of the basic necessities of life for inmates confined to

segregation for more than ninety days. The district court

ordered that inmates in segregation be provided with five

hours of exercise outside their cells and three showers

per week.

The petitioners appealed from the district court’s judg-

ment. The Court of Appeals reviewed the district court’s

judgment utilizing the “clearly erroneous” standard of re-

view. App. at 7, 8, 12. The Court ruled that petitioners

waived the question of whether the judgment was review-

able as a question of law rather than a question of fact

by failing to raise the issue in their appellate brief. App.

at 2-3. At the same time, the court acknowledged that

petitioners did argue that the ultimate question, whether

the conditions constituted cruel and unusual punishment,

was not a question of fact. App. at 3.

Under the “clearly erroneous” standard, the Court of

Appeals held that the district court’s judgment was sup-

ported by the record as to the provision of only one hour

of exercise outside the cell per week. App. at 7-8. The

court rejected the district court’s finding that the provi-

sion of only one shower per week constituted cruel and

unusual punishment. App. at 12. Accordingly, the Court

of Appeals affirmed that part of the injunction mandating

alpen

that inmates in segregation be given the opportunity to

exercise outside their cells at least five hours per week,

but vacated the part of the injunction requiring three

showers per week.*

The petitioners respectfully pray for the issuance of a

writ of certiorari to review that decision.

REASONS FOR GRANTING THE WRIT

Whether the determination that conditions of incarcera-

tion violate the Eighth Amendment is a question of law

is, itself, a question of first impression in this Court. The

court of appeals’ utilization of the “clearly erroneous’”’

standard in making this determination conflicts with the

standard utilized by at least one other court of appeals.

As a matter of law, the conditions at Stateville did not

violate respondents’ constitutional rights. The contrary

determination by the court of appeals, and its use of an

inappropriate legal standard, will have a significant and

detrimental impact on the operation of penal institutions

by petitioners and by other correctional officers through-

out the country. For these reasons, the petitioners pray

that a writ of certiorari issue to review the decision of

the Seventh Circuit Court of Appeals.

en for rehearing, the Court of Appeals deleted that

wi. of the injunction pertaining to the provision of showers.

-

I

WHETHER CONDITIONS OF INCARCERATION VIO-

LATE THE EIGHTH AMENDMENT’S PROSCRIPTION

AGAINST CRUEL AND UNUSUAL PUNISHMENT IS A

QUESTION OF LAW AND NOT OF FACT.

The District Court found that the provision of one hour

of exercise per week, given the totality of all the circum-

stances of incarceration in the segregation unit, consti-

tuted cruel and unusual punishment violative of the Eighth

Amendment. On appeal, the Seventh Circuit Court of Ap-

peals reviewed the decision of the district court as a ques-

tion of fact reviewable under the “clearly erroneous” stan-

dard. The Court of Appeals held that the district court’s

decision must be upheld because it was supported by the

evidence introduced at trial. The utilization of the “clearly

erroneous” standard of Rule 52 of the Federal Rules of

Civil Procedure was itself error by the Court. Fed. R.

Civ. Pro. 52. The ultimate question of whether conditions

of incarceration are violative of the Eighth Amendment

is a question of law subject to de novo review by the

Court of Appeals. Because the ultimate question is one

of law, it was incumbent upon the Court of Appeals to

make an independent assessment of whether the provi-

sion of one hour of exercise per week outside the cell was,

given the totality of the circumstances, cruel and unusual

punishment.

Rule 52 provides, in pertinent part, that “([flindings of

fact shall not be set aside unless clearly erroneous. .. .”’

The clearly erroneous standard, however, does not apply

to conclusions of law. Pullman-Standard v. Swint, 456

U.S. 278, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

This Court first addressed the issue of whether condi-

tions of incarceration could constitute cruel and unusual

punishment in Rhodes v. Chapman, 452 U.S. 337, 101 S.

=

Ct. 2392, 69 L.Ed.2d 59 (1981). In Rhodes, this Court held

that conditions of incarceration would constitute cruel and

unusual punishment when the conditions deprived the in-

mates of basic human necessities as measured by contem-

porary standards of decency. As noted by the Court of

Appeals in the cause at bar, the Rhodes decision implicitly

treats such a judgment as a question of law. The Rhodes

Court accepted the district court’s findings of fact, but

subjected the district court’s conclusion that the facts

demonstrated cruel and unusual punishment to de novo

review. Although the Rhodes Court did not specifically

address the issue of whether such determinations are

questions of law or fact under Rule 52, the Court’s

analysis indicates that such determinations are questions

of law.

A similar analysis was utilized by the court of appeals

in Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir. 1986).

Plaintiff Alberti, representing a class of inmates, brought

suit under 42 U.S.C. § 1983 against prison officials claim-

ing that the conditions of incarceration constituted cruel

and unusual punishment. The district court granted injunc-

tive relief against the prison officials. On review, the court

of appeals specifically addressed the appropriate standard

for review. The court noted that findings of fact were

reviewed under the “clearly erroneous” standard. Once

the facts were established, the court ruled, the issue of

whether the facts “constituted a violation of constitutional

rights is a question of law that may be assailed anew upon

appeal.” 790 F.2d at 1225. The court elaborated:

Thus, the existence of the challenged conditions in

the jails presents a question of fact to be reversed

only if clearly erroneous; we bring our own judgment

to bear on whether these conditions constitute cruel

and unusual punishment.

Id. The decision in Alberti is contrary to the decision ren-

dered by the court of appeals in the cause at bar.

SE

=

This Court has not specifically addressed the question

presented by the cause at bar. Prior decisions of the

Court on related issues support the principle that the

question of whether conditions of incarceration constitute

cruel and unusual punishment is a question of law. In

Miller v. fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.

2d 405 (1985), the Court held that the “‘voluntariness’”’ of

a confession was a question of law for purposes of 28

U.S.C. § 2254(d). Several factors were utilized in reaching

this determination. ‘{A]ssessments of credibility and de-

meanor are not crucial to the proper resolution of the ulti-

mate issue of ‘voluntariness’ ’”’. 474 U.S. at ____, 106 S.Ct.

at 453. Additionally, the “hybrid quality of the voluntari-

ness inquiry (footnote omitted), subsuming as it does a

‘complex of values’ (citation omitted), itself militates

against treating the question as one of simple historical

fact.”” Id. The Miller Court concluded that once the

underlying factual issues had been resolved, a state court

which initially rules on the voluntariness of a confession

is not in an appreciably better position to judge volun-

tariness than is the federal court which determines volun-

tariness in a habeas corpus proceeding.

The decision in Miller strongly supports the proposition

that the question of whether conditions constitute cruel

and unusual punishment is one of law. Assessments of

credibility and demeanor are not crucial to the proper

resolution of the ultimate issue. Once the subsidiary facts

of the conditions of incarceration have been found, the ulti-

mate question of whether such conditions are unconstitu-

tional is unrelated to witness credibility. Further, whether

conditions are cruel and unusual subsumes a complex of

values which are evolving as contemporary standards of

decency evolve. Once the underlying factual issues are

resolved, the court of appeals is in an equal position with

a

the district court to judge the constitutionality of condi-

tions of incarceration.

As a matter of law, the totality of conditions presented

in the cause at bar do not establish a violation of respon-

dents’ rights under the Eighth Amendment. The facts

found by the district court do not, as a matter of law,

demonstrate conditions which deprive respondents of the

basic human necessities.

It is petitioners’ contention that the appropriate stan-

dard of review for questions of whether conditions of in-

carceration violate the Eighth Amendment is review as

a question of law. This question of first impression merits

review by this Honorable Court.

Il.

THE DEFENDANTS DID NOT WAIVE THE ISSUE OF

THE APPROPRIATE STANDARD OF REVIEW.

The court of appeals ruled that petitioners waived the

argument that the constitutionality of conditions of in-

carceration is a question of law. This ruling is incorrect

as a matter of both fact and law.

In their briefs, petitioners argued specifically that the

ultimate question of the constitutionality of the conditions

at Stateville was a question of law. The court of appeals,

in its decision, acknowledged that petitioners argued that

the ultimate question was not one of fact. (App. at 3).

Thus, the petitioners did, in fact, argue before the court

of appeals that the constitutionality of the conditions of

incarceration was a question of law and not of fact.

The error of which petitioners complain is the utiliza-

tion of an incorrect standard of review by the court of

appeals. The appropriate standard of review to be utilized

by the court of appeals is not an “error” by the district

=

court which must be raised in the briefs in order to be

preserved for consideration on review. It is incumbent

upon the appellate court to utilize the correct standard

of review. Thus, even where a party asserts an incorrect

standard of review, the reviewing court will utilize the

appropriate standard. See generally, Hartford Accident

and Indemnity Co. v. Sullivan, 846 F.2d 377, 384 (7th

Cir. 1988); Mucha v. King, 792 F.2d 602, 604 (7th Cir.

1986). The Court of Appeals erred in failing to conduct

a de novo review of the district court’s conclusion that,

as a matter of law, the underlying facts demonstrated

cruel and unusual punishment inflicted by the petitioners.

CONCLUSION

For these reasons, this petition for certiorari should be

granted.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROBERT J. RUIZ

Solicitor General, State of Illinois

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3312

Attorneys for Petitioners

ROSALYN B. KAPLAN *

VALERIE J. PEILER

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3698

Of Counsel * Counsel of Record

INDEX TO APPENDIX

A— Opinion of the United States Court of Appeals

for the Seventh Circuit, April 13, 1988 ....

B— Order of the United States Court of Appeals

for the Seventh Circuit Modifying Opinion in

Response to Petition for Rehearing, May 23,

A cher andecateekadanendtadeeae ss

C— Memorandum Opinien and Judgment Order of

the United States District Court for the North-

ern District of Illinois, Eastern Division, Jan-

i see PCCC sh beetaeek awe aicsene

PAGE

App. 1

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 87-1233

JAMES DAVENPORT, et al.,

Plaintiffs-Appellees,

Vv.

RICHARD DEROBERTIS, MICHAEL O’LEARY,

and MICHAEL P. LANE,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 83 C 4392—William T. Hart, Judge.

ARGUED JANUARY 8, 1988--DEcIDED APRIL 13, 1988

Before CUMMINGS, POSNER, and CUDAHY, Circuit Judges.

POSNER, Circuit Judge. This class action on behalf of

prisoners confined in the segregation unit at Stateville,

the State of Illinois’ maximum-security prison, charges

that living conditions in the unit are so substandard as

to be a form of cruel and unusual punishment within the

meaning of the Eighth Amendment, made applicable to

the states by interpretation of the Fourteenth Amend-

ment. (The average number of prisoners confined in seg-

regation at Stateville is 225, but this suit is limited to

those confined there for more than ninety consecutive

days.) A jury agreed, and awarded nominal damages to

eee SS OO SS SS OE eee

App. 2

the class. The district judge set aside the award of dam-

ages on the ground that the defendants (Illinois correc-

tional officials) were immune from liability for damages,

but he entered an injunction which requires the defendants

to provide “every Stateville segregation inmate who has

been confined in segregation for 90 or more consecutive

days the opportunity to shower at least three times each

week and to exercise outside of his cell at least five hours

each week.” However, if the “inmate violates prison rules

during his exercise or shower period, he may be denied

the exercise or shower rights provided herein for a rea-

sonable period of time pursuant to tion roved

by this court.” 653 F. Supp. 649 (N.D. IIL. 1987).

The defendants’ challenge to the district court’s deci-

sion is a narrow one. They do not challenge the jury’s

finding that the conditions of segregated confinement at

Stateville violated the Eighth Amendment. They do not

argue that the district ju should have paid no atten-

tion to the finding because ultimately he determined that

the defendants were immune from liability for damages

and set aside the jury’s verdict. A public official's immuni-

ty in a suit for damages is, no y, immunity from trial,

not just from the award of damages. Mitchell v. F

472 U.S. 511, 526 (1985); Green v. Carlson, 826 F.2d 647,

651 (7th Cir. 1987). If there are factual disputes that can-

not be resolved without a trial, then trial there must be,

id. at 652; but there was no trial on immunity here; after

the trial the judge decided that the defendants were en-

titled to immunity after all, and set aside the jury’s ver-

dict. But the defendants do not argue that, by doing this,

he deprived the jury’s finding of liability of binding force

in the injunction suit. They easily could so argue, as we

shall see.

Nor do they argue that the ultimate question in an

Eighth Amendment case is a question of law for the Judge

to decide rather than a question of fact for the jury. The

question whether a rule of law has been violated—a ques-

tion that requires applying the rule to the facts—is nor-

mally treated as a question of fact, see, e.g., Mucha v.

App. 3

King, 792 F.2d 602, 605 (7th Cir. 1986), not because it

is a question of fact (it isn’t) but as a way of expressing

a decision to leave the answer to the trial judge or jury

to make, subject only to limited appellate review. The

defendants miss this point in arguing, half-heartedly, that

ultimate questions are not questions of fact. They base

this nt on a case, no longer authoritative, which

had held on the basis of a decision later expressly over-

ruled by the Su ta 2 Court in Pullman-Standard v.

Swint, 456 U.S. 285-86 (1982), that the question of

discrimination in a Title VII case is one of law rather than

of fact. See Stewart v. General Motors Corp., 542 F.2d

445, 449 (7th Cir. 1976).

There are ex wore Dated om gynetronee vm tig

tions are dee questions of fact, an example being the

question of actual malice in defamation cases; of the

exceptions are discussed in Miller v. Fenton, 474 U.S. 104

(1985), and Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485, 505-11 (1984). The defendants do

a ee ee et ee

though in Rhodes v. Chapman, 452 U.S. 337 (1981), the

Supreme Court had implicitly treated the question whether

particular prison conditions amounted to cruel and unusual

punishment as one of law, see id. at 347, 352; none of

the opinions in that case, however, discusses the standard

of review. Several lower-court decisions treat the ques-

tion as one of fact, but again without discussion. See, e

Shrader v. White, 761 F.2d 975, 980 (4th Cir. 1985);

v. Hall, 668 F.2d 52, 54-55 (1st Cir. 1981); cf. Joseph v.

Brierton, 739 F.2d 1244, 1246 (7th Cir. 1984). We need

not try to resolve the issue, given the defendants’ failure

to raise it.

All that the defendants are arguing is that the most the

Constitution guarantees the segregated inmates of State-

ville under current conditions in the segregation unit—a

vital qualification, as will shortly appear—is one hour of

exercise outside the cell, and one shower, per week, _

hence that the injunction is too severe. In so a eaility

defendants may seem to have overlooked the ility

that the injunction might be intended to be more severe

App. 4

—_ the Constitution, in order to rectify more effective-

the constitutional violations that the jury found and

; t the defendants no longer contest. , e.g., Hutto

v. Finney, 437 U.S. 678, 687 (1978). But we do not under-

stand the injunction to reflect such a design; it seems

rather to reflect the district court’s view of the constitu-

tional minimum in the circumstances.

The defendants’ challenge to the terms of the injunction

may seem inconsistent with their failure to challenge the

jury’s finding of a constitutional violation. But as —

= int out, much of the evidence on which that finding w

ased concerned conditions in F- House, the building that

housed the tion unit until shortly before the trial.

Conditions in ouse, an old unit, were very bad. Not

only were the cells small (4'9” by 10’ 6"), but they were

dirty and roach-infested, toilets were frequently backed

up, and food was served to the inmates cold. By the time

of trial all the inmates had been moved to a new

tion unit, I-House, and not only is I-House newly built

and modern but its cells measure 7’ 2” by 13'2”, giving

them almost twice the square footage as the cells in F- ouse

(94 square feet versus 50 square feet). There is no evi-

dence of unsanitary conditions or unheated food in I-House;

and although the doors to the cells have only narrow slits

rather than the barred windows of the doors to F-House’s

cells, each cell in I-House has an outside window at the

back. The windows in the doors of F-House’s cells, com-

bined with the circular shape of F-House, made F-House

a more sociable habitat for the inmates than I-House, but

also and by the same token made the inmates more rowdy

and by doing so may have been indirectly responsible for

much of the filthy condition of the cells. Rowdy inmates

are given to throwing food out of their cells, stopping up

toilets, and preventing maintenance staff from entering.

There was testimony, both lay and medical, including

testimony by the medical director of the Illinois Depart-

ment of Corrections, Dr. Shansky, that four to seven hours

of exercise outside the cell, and three showers, are the week-

ly minimum necessary to prevent serious adverse effects

App. 5

on the physical and mental health of inmates confined,

as these inmates are, in what realistically is a form of

solitary confinement. It is true that each cell contains a

sink in which the inmate can wash himself as often as

he wants and that the cells in I-House are large enough

for the inmate to engage in various forms of exercise, in-

cluding push-ups, sit-ups, step-ups, and running in place.

It is also true that the inmates are allowed to leave their

cells for a variety of reasons, such as to use the law li-

brary, see visitors, consult with lawyers and other coun-

selors, and visit the medical unit. But these excursions

consume in the aggregate only two to three hours a

week on average, and degree of constraint is consider

able. A visit to the law library, for example, means being

escorted in handcuffs to a caged carrel in the library—

not browsing in stacks or working at a library table in

a reading room.

Confinement in segregation is usually for a much shorter

time than the prisoner’s full term. Whereas most Stateville

prisoners are violent criminals serving long terms (one-

third are serving terms for murder and three-fourths have

been convicted of murder at some point in their criminal

careers), most prisoners confined to segregation serve only

a few months there (at least consecutively). But the plain-

tiff class is, as noted earlier, limited to prisoners who

served more than ninety consecutive days in segregation,

and several of the class members spent more than a year

there and one spent more than two and a half years there.

Confinement in Stateville’s segregation unit involves

considerable isolation, sometimes for protracted periods;

and the record shows, what anyway seems pretty obvious,

that isolating a human being from other human bei

year after year or even month after month can cause su

a sychological damage, even if the isolation is not

course, "tt is highly probable that the experience

re being imprisoned inflicts psychological damage whether

or not the prisoner is isolated, so it is only the marginal

psychological damage from segregation that is relevant.

And the infliction of disutility, to borrow a convenient

App. 6

economic term, is one of the objectives of criminal punish-

ment; only if the only objective of punishment were inca-

pacitation could it be argued that living conditions should

be as comfortable in prison as outside. The Eighth Amend-

ment has, however, been interpreted to place limitations

on the harshness of prison conditions, and the defendants

as we have said do not quarrel with the propriety of the

jury’s having determined in this case that conditions in

the segregation unit at Stateville exceeded those limita-

tions. The principal—though not, as it seems to us, an

insuperable—difficulty in using this proposition to ground

the injunction is that most of the testimony at trial was

directed toward the totality of conditions in segregation

at Stateville, including the small size and filthy conditions

of the cells in F-House. The totality is of limited signifi-

cance in appraising the injunction. The injunction looks

to the future; and the future is I-House, not F-House.

The difficulty is compounded by the statement in the

district judge’s opinion that he “‘should accept the jury’s

findings as predicate for equitable relief.” 653 F. Supp.

at 663. If the judge meant by this that he was required

to issue the injunction that would have been appropriate

if I-House had never been built—appropriate if the mem-

bers of the plaintiff class were still confined in F-House—

he was wrong. It is true that if the jury’s finding on lia-

bility had been valid, he could not have refused to issue

an injunction on the ground that he di d with the

jury’s finding. Hunter v. Allis-Chalmers Corp., T97 F.2d

1417, 1421 (7th Cir. 1986); Hussein v. Oshkosh Motor Truck

Co., 816 F.2d 348, 355 (7th Cir. 1987). The jury’s verdict

would bind the judge under the doctrine of collateral es-

toppel (thus demonstrating that the doctrine does not re-

uire a final ae es in the conventional sense). See

statement, nd, Judgments § 13 and comment g and

illustration 3; Lummus Co. v. Commonwealth Oil Refin-

ing Co., 297 F.2d 80, 89 (2d Cir. 1961) (Friendly, J.). But

he set aside the jury’s verdict. It is true that he did this

not because he disagreed with its findings but because

he thought that the defendants had immunity from dam-

App. 7

ages liability. But by setting aside the verdict on a ground

not challenged by the plaintiffs he deprived the findings

of the collateral estoppel effect that they would otherwise

have had. The plaintiffs had no right to a jury verdict,

so how can they have a right to benefit from it? In any

event, and more fundamentally, the judge was required

to tailor the equitable relief to the actual circumstances

before him, which included the circumstance that the pris-

oners are now housed in I-House.

Did he try to do this? A positive answer is strongly im-

plied by his discussion of conditions in other prisons. See

653 F. Supp. at 663. A negative answer is weakly implied

by his citation (also id.) to the page of Shelby County Jail

Inmates v. Westlake, 798 F.2d 1085, 1092 (7th Cir. 1986),

at which this court, while indicating that the district judge

must make an independent judgment on equitable issues

insofar as they are not identical to the | issues deter-

mined by the jury, found that the legal and equitable is-

sues in that case were identical. Maybe the district judge

in this case thought the same thing, in which event he

was wrong, because the jury did not purport to determine

the equitable relief necessary to prevent the se por mma

or recurrence of the defendants’ unlawful acts. But although

the district judge’s opinion could have been clearer on this

important point, we conclude that he did make an indepen-

dent judgment on the equitable relief necessary to secure

the plaintiffs’ rights in J-House, which is all that is rele-

vant since no one suggests that the defendants might de-

cide to move the segregation unit back to F-House.

We are noi disposed to quarrel with the district judge’s

conclusion that to allow even I-House inmates only one

hour of exercise out of the cell per week (the defendants’

sition) would fall below the minimum decencies that the

ighth Amendment requires of incarceration, especially

since the defendants’ concession requires us to treat this

as a question of fact and therefore to defer broadly to

the answer given by the district judge. There was exten-

sive evidence, much of it conflicting, and we cannot say

that in sorting through it the judge committed clear error.

App. 8

Of course, as the defendants argue, an inmate can pre-

serve his cardiovascular fitness and overall muscle tone

by running in place or by engaging in other forms of ex-

ercise that are feasible without leaving the cell; but this

misses the point. The opportunity to exercise or even just

to stand around, outside, in the company of other pris-

oners, is the inmate’s principal break from what other-

wise is solitary confinement except for his limited oppor-

tunities to visit other parts of the prison on specific and

tightly supervised missions. With only one hour of exer-

cise outside the cell a week and only two other hours out-

side the cell, an inmate spends 165 out of 168 hours in

a 90-square-foot cage. That is too little, or so at least the

district judge could find without committing a clear error.

This conclusion depends, obviously, on the proposition

that the requirements of the Eighth Amendment have

changed over time; for it was not so long ago that soli-

tary confinement—real solitary confinement—was consid-

ered neither unusual nor especially cruel. But “the Eighth

Amendment has not been regarded as a static concept.”

Gregg v. Georgia, 428 U.S. 153, 172-73 (1976) (plurality

opinion); see also Estelle v. Gamble, 429 U.S. 97, 102

(1976); Hutto v. Finney, 437 U.S. 678, 685 (1978); Rhodes

v. Chapman, supra, 452 U.S. at 346 (“No static ‘test’ can

exist by which courts determine whether conditions of

confinement are cruel and unusual, for the Eighth Amend-

ment ‘must draw its meaning from the evolving standards

of decency that mark the p ss of a maturing socie-

ty’”’). It would not be an arid literalism—it would be a

bold interpolation—to read the amendment as if the words

“as so regarded on the date of this enactment”’ followed

the words “cruel and unusual punishments.” The term

“cruel and unusual punishments” was taken verbatim from

the English Declaration of Rights of 1689, see Granucci,

“Nor Cruel and Unusual Punishments Inflicted:” The

Original Meaning, 57 Calif. L. Rev. 839, 852-53 (1969), so

if a historical view is taken perhaps the proper reference

date is a century before the enactment of the Eighth

Amendment. Like much of the rest of the Bill of Rights,

the Eighth Amendment would be obsolete if its meaning

App. 9

were thought bounded by the mental horizons of its eigh-

teenth-century framers, broad as those horizons were.

The term “cruel and unusual punishments” is relative

rather than absolute. The conditions in which prisoners

are housed, like the poverty line, is a function of a soci-

ety’s standard of living. As that standard rises, the stan-

dard of minimum decency of prison conditions, like the

poverty line, rises too.

A knowledgeable witness testified that he knows of

no other prison in the United States, including the fed-

eral penitentiary at Marion, Illinois—the nation’s highest-

security prison—that allows inmates of its segregation unit

so little time for out-of-cell exercise. The defendants could

have presented a witness who would testify that there

were other such prisons—or, if not, still that Stateville

is at or above the constitutionally permissible minimum.

It cannot be right that the least comfortable prison con- -

ditions in the United States automatically violate the Con-

stitution, cf. Rummel v. Estelle, 445 U.S. 263, 281-82

(1980); for then, by the inevitable progression of successive

cases, all conditions other than the most comfortable

would be found to violate it. The defendants did not pre-

sent such a witness, however, and the district judge was

entitled to draw the natural inference from their failure

to do so. Nor do the defendants argue that the statement

in Rhodes that te pore of expert witnesses do not estab-

lish constitutional minima, see 452 U.S. at 348 n. 13, pre-

cludes the taking of expert testimony on questions (such

as a Yayoi harm, or comparative prison practices)

logically related to the constitutional judgment. From the

evidence before him the judge could reasonably conclude

that the defendants must provide each inmate in I-House

with at least five hours of exercise time per week in order

to comply with the Eighth Amendment. The exception for

fractious inmates protects the defendants’ legitimate inter-

est in security, well illustrated by United States v. Foun-

tain, 768 F.2d 790 (7th Cir. 1985); it is unfortunate but

unavoidable that the exception may itself engender litiga-

tion by inmates claiming that the defendants are misap-

plying it.

App. 10

Our conclusion that the district judge was authorized to

establish a five-hour minimum for exercise is bolstered by

other judicial decisions on prisoners’ exercise rights. The

decisions are fact-specific; not surprisingly, the federal

courts have not attempted to specify detailed guidelines

for the administration of state prisons. Nevertheless we 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—a qualification that distinguishes such

cases as Harris v. Fleming, No. 86-2549, slip op. at 7-8

(7th Cir. Feb. 10, 1988), and Shelby County Jail Inmates

v. Westlake, supra, 798 F.2d at 1089) with the opportunity

for at least five hours a week of exercise outside the cell

raises serious constitutional questions. See, e.g., French

v. Owens, 777 F.2d 1250, 1255-56 (7th Cir. 1985); Ruiz v.

Estelle, 679 F.2d 1115, 1151-52 (5th Cir. 1982); Campbell

v. Cauthron, 623 F.2d 508, 507 (8th Cir. 1980) (pretrial

detainees); Spain v. Procunier, 600 F.2d 189, 199-200 (9th

Cir. 1979); Sweet v. South Carolina Dept. of Corrections,

529 F.2d 854, 865-66 (4th Cir. 1975); Frazier v. Ward, 426

F. Supp. 1354, 1367-69 (N.D.N.Y. 1977); cf. Caldwell v.

Miller, 790 F.2d 589, 601 (7th Cir. 1986). We do not sug-

gest that this is always and everywhere the constitutional

minimum; much less may suffice when the period of in-

carceration is brief. But a judge who, on an adequate rec-

ord, requires this level of exercise opportunity has not

exceeded the outer bounds of permissible interpretation

of the Eighth Amendment.

In contrast, we do not think that the provision of the

injunction requiring the defendants to allow the inmates

to take three showers a week has adequate sunport in

the record or in constitutional doctrine. No douk: Amer-

icans take the most showers per capita of any people in

the history of the world, but many millions of Americans

take fewer than three showers (or baths) a week without

endangering their physical or mental health, and abroad

people as civilized and healthy as Americans take many

fewer showers on average, as every tourist knows. Any

inmate of Stateville’s segregation unit who wants to keep

App. 11

as clean as a free person can wash himself daily, or if

he wants hourly, in the sink in his cell—a point ignored

by Dr. Shansky, the medical expert for the plaintiff class

on the issue of showers. There is evidence that inmates

of the segregation unit consume on average more medical

services than nonsegregated inmates, but there is no evi-

dence connecting this datum to the number of showers

for each group. The importance of the daily shower to

the average American is cultural rather than hygienic; as

Dr. Shuman, the defendants’ expert, testified, “I know

of nothing that says that a shower is necessary more than

one day a week. I believe in this culture it is done that

way but I don’t know of any medical need for it.” The

judge was not obliged to believe the defendants’ witness,

but Dr. Shansky made the same point as Shuman when

he said that being able to take only one shower a week

makes inmates feel “less than human.” While there is

plenty of medical and psychological literature concerning

the ill effects of solitary confinement (of which segrega-

tion is a variant), see, e.g., Grassian, Psychopathological

Effects of Solitary Confinement, 140 Am. J. Psychiatry

1450 (1983), we have not found any corresponding litera-

ture on the effects of limiting the number of showers that

prisoners may take. The deprivation merely of cultural

amenities is not cruel and unusual punishment. Harris v.

Fleming, supra, slip op. at 6-8. Moreover, the evidence

on this aspect of the case was heavily contaminated by

evidence about conditions in F-House; for of course the

filthier the conditions under which inmates are living, the

greater their need for frequent showers.

There would be a special irony in requiring the State

of Illinois to provide the security escorts and other ser-

vices and facilities necessary to enable the most incorrigi-

ble of its prisoners to take three showers a week, when

many law-abiding poor people in dilapidated public housing

projects do not have working showers. The necessity to

make painful tradeoffs between competing public projects

in an era of governmental fiscal scarcity counsels caution

in the formulation of equitable relief requiring public ex-

penditures.

App. 12

Preston v. Thompson, 589 F.2d 300, 303 (7th Cir. 1978),

upheld a district court’s injunction that required a mini-

mum entitlement of two showers a week, but the circum-

stances were different. The prison officials had imposed

a prison-wide deadlock or lockdown, with drastic conse-

quences for all prisoners. The district court thought the

prison was too slow in returning to normalcy, and the two-

shower provision was intended to nudge the defendants

in that direction. The plaintiffs in our case rely heavily

on a district court decision, Lightfoot v. Walker, 486 F.

Supp. 504, 511 (S.D. Ill. 1980), which finds that allowing

inmates only one shower per week “promotes deteriora-

tion of inmates physically.” But the district court’s opinion

in that case does not explain the basis of its finding or

indicate whether the deterioration resulted solely from the

infrequency of the showers or from that in combination

with a failure to allow the inmates more than an hour

of exercise per week. On the record in the present case

one shower a week for inmates of Stateville’s segregation

unit is constitutionally sufficient and the district judge’s

contrary finding is clearly erroneous. The injunction is

modified by substituting “once” for “three times” and as

modified is affirmed. No costs on appeal.

MODIFIED AND AFFIRMED.

CuDAHY, Circuit Judge, concurring in part and dissenting

in part:

After marching up the hill to uphold very ably and con-

vincingly the five hour exercise prescription, the major-

ity marches down the other side to somehow find three

showers clearly erroneous. This is puzzling, because in the

minds of most Americans there is some considerable link-

age between occasions of vigorous exercise and the need

for showers. In addition, I doubt that American tourists,

whose observations the majority cites, would recommend

importing at random foreign standards of balneation, even

SK

App. 13

into maximum security prisons. As a matter of fact, the

majority may be maligning foreigners since the Japanese,

for example, have traditionally surpassed Westerners in

their zeal for frequent bathing.

Whatever may be the dubious logic of the majority’s

stand on showers, a one-shower-a-week regimen takes us

back in memory to the days of the Saturday night bath

in a washtub heated on a wood stove. But that is history.

Indoor plumbing has now been with us for some years—

even in prisons. I have the impression the jury in bring-

‘ing in its verdict understood some of these things better

than the majority.

No less an authority than Dr. Shansky, the medical di-

rector of the Illinois Department of Corrections, testified

that three showers are the weekly minimum (in connec-

tion with adequate exercise) necessary to prevent serious

adverse effects on the physical and mental health of in-

mates in what amounts to solitary confinement. On that

basis alone, I have great difficulty in seeing how Judge

Hart’s conclusion can be called clearly erroneous. I there-

fore respectfully dissent on the shower reversal.

On another point, the majority says that, “the infliction

of disutility .. . is one of the objectives of criminal punish-

ment... .” Supra pp. 5-6 (Emphasis supplied). This sounds

a bit ominous to me—assuming that I understand it. On

that shaky premise, I would also most respectfully dis-

agree on this point.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 14

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

May 23, 1988

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. RICHARD D. CuDAHy, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

JAMES DAVENPORT, et al.,

Plaintiffs-Appellees,

No. 87-1233 v.

RICHARD DEROBERTIS, MICHAEL O’LEARY,

and MICHAEL P. LANE,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 83 C 4392—William T. Hart, Judge.

ORDER MODIFYING OPINION IN

RESPONSE TO PETITION FOR REHEARING

The petition for rehearing filed by the defendants on

April 27, 1988, is granted, and the second to last sentence

of the majority opinion is amended to read as follows:

The injunction is modified to delete the reference to

showers and as modified is affirmed.

Seen nnn Tn et en ne a en

App. 15

APPENDIX C

[Dated January 30, 1987]

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 838 C 4392

JAMES DAVENPORT, CHARLES RICHMOND, HECTOR RIVERA,

CARL LUCAS, ROGER PENNIE, CHARLES TERRY,

and MARK MCBRIDE,

Plaintiffs,

Vv.

RICHARD W. DEROBERTIS, MICHAEL LANE,

and MICHAEL O’LEARY,

Defendants.

MEMORANDUM OPINION AND

JUDGMENT ORDER

This is a class action for deprivation of plaintiffs’ consti-

tutional rights brought pursuant to 42 U.S.C. § 1983. Juris-

diction of the court is properly invoked pursuant to 28

U.S.C. § 1348 and is not disputed. Plaintiffs seek damages

individually and injunctive relief on behalf of a class of

current and potential long-term segregation inmates at the

Stateville Correctional Center (“‘Stateville”) operated by

the defendant officials of the Illinois Department of Cor-

rections where plaintiffs were or are now confined. Plain-

App. 16

tiffs seek to redress alleged individual and class violations

of their eighth amendment rights because they contend

that they were incarcerated under conditions that sub-

jected them to pain, physical deterioration and emotional

distress caused by a lack of adequate showers and physi-

cal exercise.

On March 31, 1986, for the purpose of seeking injunc-

tive relief, plaintiffs Rivera and Lucas were certified as

representatives of the following class: all present and

future Stateville inmates confined to Stateville segrega-

tion for 90 or more consecutive days.

The defendants in this action are Richard W. DeRobertis,

former Warden of Stateville, Michael P. Lane, Director

of the Illinois De ment of Corrections, and Michael

O’Leary, current Warden of Stateville. Each defendant

was sued for damages and injunctive relief in his indi-

vidual capacity. After trial, plaintiffs moved to amend the

complaint to allege that each defendant was also sued in

his official capacity. The charges and issues have essen-

tially related to official conduct. See Walker v. Rowe, 791

F.2d 507, 507 (7th Cir.), cert. denied, 107 S.Ct. 597 (1986).

Inasmuch as no objections have been made to this amend-

ment and because no other or different proofs would have

been presented, this motion is granted. The amendment,

however, has eleventh amendment implications which

must be considered.

Inasmuch as damages were sought, the liability and

damage issues were properly tried to a jury. The matter

of injunctive relief, if any, was reserved for decision by

the court.

The jury was asked to return a special verdict answer-

ing seven questions and to determine damages. In response

to the liability questions, the jury found that, under the

totality of the circumstances in this case: (1) providing only

one shower per week constitutes crue] and unusual punish-

ment; (2) providing only one hour of out-of-cell exercise

per week constitutes cruel and unusual punishment; (3)

each defendant was personally responsible for cruel and

App. 17

unusual punishment; (4) each defendant acted with deliber-

ate indifference or reckless disregard for the health and

well-being or constitutional rights of plaintiffs; (5) plain-

tiffs sustained injury or damages; (6) defendants’ acts or

conduct was the proximate cause of plaintiffs’ injury or

damages; (7) there exists a pattern or custom of defen-

dants which has resulted in denial of rights to be free

from cruel and unusual punishment. Each of the named

plaintiffs was awarded one dollar compensatory and one

dollar punitive damages against each defendant.

Defendants filed timely motions for a directed verdict,

for judgment notwithstanding the verdict or, in the alter-

native, for a new trial. The parties were also directed to

separately brief the issue of relief should the post-trial

motions be denied. This was done, and the matter was

set for a status hearing on December 22, 1926. At that

time the parties were asked by the court whether they

wished to offer any additional evidence directed solely to

the question of appropriate relief. Each side indicated a

desire to submit case to the court on the record made

at the trial of the liability and damage issues and on the

briefs submitted without any additional evidence.

The matters to be resolved are (1) the post-trial mo-

tions, (2) defendants’ claims of qualified immunity, (3) the

application of the eleventh amendment, and (4) the nature

of any injunctive relief.

I.

Post-Trial Motions

A. Directed Verdict—

Judgment Notwithstanding the Verdict

The legal standard applicable to defendants’ motion for

a directed verdict or judgment notwithstanding the ver-

dict is clear. “The motion ‘should be denied where the

evidence, along with the inferences to be reasonably

drawn therefrom, when viewed in the light most favorable

to the party opposing such motion, is such that reason-

App. 18

able men in a fair and impartial exercise of their judg-

ment may reach different conclusions.’ ” Freeman v. Fran-

zen, 695 F.2d 485, 488 (7th Cir. 1982), cert. denied, 463

U.S. 1214 (1983) (quoting Konczak v. Tyrrell, 603 F.2d

13, 15 (7th Cir. 1979), cert. denied, 444 U.S. 1016 (1980)).

The court must “resolve all conflicting evidence in favor

of the jury’s verdict,” and may not “reweigh the evidence

or make [its] own determinations of credibility.” Shelby

County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th

Cir. 1986). The motion must be denied where the evidence

includes “disparate accounts of the underlying incident(s},”

raising questions of credibility that only the jury may re-

solve. Freeman, 695 F.2d at 488; Carter v. Duncan-Hug-

gins, Ltd., 727 F.2d 1225, 1227 (D.C. Cir. 1984) (“if there

is substantial conflicting evidence, the judgment n.o.v. mo-

tion must be denied.”’).

There is no dispute as to the applicable constitutional

standard. As stated in the instructions to the jury: “prison

conditions can be cruel and unusual when they deprive

inmates of the minimal civilized measure of life’s neces-

sities,’ when they inflict “pain without justification,” or

when they violate “the evolving standards of decency that

mark the progress of a maturing society.” The jury was

instructed to make its determinations based on the “total-

ity of the circumstances.” Defendants did not object to

these instructions, and they are supported by precedent.

Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Caldwell

v. Miller, 790 F.2d 589, 600 (7th Cir. 1986).

The jury had before it the following uncontested facts

which were part of the final pretrial order:

1. Stateville is a maximum security prison operated by

the Illinois Department of Corrections. The segregation

unit at Stateville is a maximum security unit that houses

those inmates who have been found guilty of violating

prison rules and regulations. At any one time approxi-

mately 225 single-celled inmates are confined in segre-

gation. Prior to January 1985, the segregation unit was

in F-House. In January, 1985, the segregation unit was

moved to I-House, a newly built segregation unit.

App. 19

2. The cells in F-House are virtually identical to each

other. The dimensions of the typical F-House cell are

somewhat pie-shaped 10’6” x 49” x 106”. Available un-

blocked floor space consists of two rectangular areas

measuring approximately 3’ x 6%’, and 40” x 30’.

3. I-House has 24 wings, each wing containing 12 or

13 cells. The cells in I-House are virtually identical to each

other. The dimensions of the typical I-House cells are

72” x 132". Available unblocked floor space consists of

a rectangular area approximately 10'2” by 49”.

4. There is one shower stall in each wing which meas-

ures 43%” x 7’. It serves the 12 or 13 cells in its wing.

5. The typical I-House cell has a metal door through

which the inmate can peer at certain times through a slot

29” from the floor. The cell walls and floor are made of

concrete. The typical cell has a window to the outdoors

that measures 48” x 11”, which can be opened and closed

by the inmate.

6. The segregation unit inmates are provided with a

stool fixed to the floor, bed (including mattress, pillow,

and blanket), sink, toilet, soap, towel, and shelf. The sink

has running water. Inmates are allowed to have personal

toiletry items in their cells. The prison provides a laun-

dry service for segregation inmates once a week.

7. The defendants, Michael Lane, Michael O’Leary, and

Robert DeRobertis were at all times relevant to the law-

suit acting under color of the laws of Illinois and the rules

and regulations of the Illinois Department of Corrections.

Michael Lane is the Director of the Illinois Department

of Corrections. Richard DeRobertis was Warden at State-

ville until November 1983, at which time Michael O’Leary

became Warden.

8. Illinois Department of Corrections Administrative

Rule 804, and Department of Corrections Rules, Section

504.620 (which superseded AR 804), both provide that seg-

regation unit inmates shall be provided with not less than

one shower and one hour of recreation or exercise out-

App. 20

side their cells a week. Defendant Michael Lane was per-

sonally involved in the adoption of these rules. The

warden at Stateville has discretion to provide more than

the minimum amounts of showers and exercise.

9. Out-of-cell recreation for segregation inmates consists

solely of time spent in one of two outdoor recreation

yards. Each yard is blacktopped and enclosed by a chain-

link fence. The dimensions of the irregularly shaped F-

House yards are approximately 63’ x 18’ x 40’ x 42’. The

dimensions of the five sides yards at I-House are approxi-

mately 55’ x 45’ x 32’ x 41’. Both yards have basketball

hoops.

10. The procedure for giving segregation inmates their

yard time consists of the following. There are two nearly

identical outdoor yards at I-House. At any one time, each

yard can accommodate up to 10 inmates. Four exercise

periods are scheduled each day between 8:30 a.m. and 2:30

p.m. Four guards are required at any given time to pro-

vide yard time to those segregation inmates who wish to

use it. Two guards cuff the inmates and escort them to

their respective yards. Two guards stand watch over the

yards in a nearby tower.

11. While the segregation unit was in F-House, segre-

gation inmates were generally provided one shower a

week on a scheduled basis. The F'-House shower room is

located beneath the main floor in the center of the round

house. It measures 20’ x 8’. There is also a drying room

measuring 10’ x 10’ and an access area measuring 20’ x 4’.

12. Segregation unit inmates are provided no indoor

recreation outside of their cells.

13. Segregation unit inmates are locked in their cells

24 hours a day except when they have yard time, take

a shower, go to the hospital, see visitors, visit the law

library, attend administrative proceedings, appear before

the parole board, visit their counselors, or appear in court

by means of a writ of habeas corpus.

App. 21

14. Segregation inmates in I-House can and do at least

some limited forms of exercise in their cells such as push-

ups, sit-ups, steps-ups, and running in place, although

some inmates do not do such exercise.

15. Segregation inmates can and do use the sinks in

their cells to wash themselves, although some inmates do

not.

16. Medical technicians visit the segregation inmates

in their cells on a regular basis and will respond to those

inmates who request medical attention. Physician atten-

dants also see to the inmates’ medical needs. There is a

medical doctor and psychiatrist available for inmates. A

clinic and hospital are also available for segregation in-

mates.

17. The individual plaintiffs were confined to the State-

ville segregation unit during the following periods:'

Richmond 7/82 to 1/84

Pennie 4/83 to 1/84

Davenport 2/83 to 6/84

Rivera 5/83 to 5/84

Lucas 6/83 to 1/86

Terry 8/82 to 12/84

McBride 7/83 to 12/84

The jury had before it the “Standards for Adult Correc-

tional Institutions” (second edition) (““A.C.A.””) which state

with respect to showers and exercise as foliows:

2-4224 Written policy and procedure provide that in-

mates in segregation have the opportunity to shave

and shower at least three times per week. (Essential)

DISCUSSION: Inmates in segregation should

have the opportunity to maintain an acceptable

level of personal hygiene, including the oppor-

tunity to shave and shower at least three times

per week, unless these procedures present an un-

' Two plaintiffs were in custody at the time of trial.

App. 22

due security hazard. If conditions permit, these

inmates should be able to shower daily.

2-4232 Written policy and procedure provide that in-

mates in segregation receive a minimum of one hour

per day, five days per week, of exercise outside their

cells, unless security or safety considerations dictate

otherwise. (Essential)

DISCUSSION: Opportunities to maintain physi-

cal fitness are critical for inmates in disciplinary

detention and administrative segregation because

of the obvious limitations on their movement.

They should be provided the o Ss. to ex-

ercise in an area designated for this purpose,

with opportunities to exercise outdoors, weather

permitting, unless security or safety considera-

tions dictate otherwise. A written record should

be kept of each inmate’s participation, or lack

of it, in the exercise program. Reasons for the

imposition of constraints should be documented.

The evidence also included the “Standards for Health

Service in Prisons” published in July 1979 by the Amer-

ican Medical Association which states with respect to ex-

ercise as follows:

161 Written policy and defined procedures outline a

program of-exercising and require that each in-

mate is allowed a daily minimum of one hour of

exercise involving large muscle activity, away

from the cell, on a planned, supervised basis.

Discussion: It is recognized that many facilities

do not have a separate facility or room for exer-

cising. The dayroom adjacent to the cell may be

used for this purpose. The dayroom meets com-

pliance, if planned, programmed activities are

directly supervised by staff and/or trained volun-

teers; otherwise, the ‘haan hour would not

be different from any of the other hours of the

day. Examples of large muscle activity include

App. 23

walking, jogging in place, basketball, ping pong,

and isometrics. Television and table games do

not meet compliance.

The evidence disclosed that Stateville segregation in-

mates have been subjected to isolation, locked in their

cells almost 24 hours a day for periods up to two years.

At most, they are allowed out of their cells for two or

three hours a week. There was evidence that their cells

are dirty and roach-infested. Sinks and toilets often backed

up, flooding the gallery with filth. Water was frequently

cold, and the food was usually cold. James Davenport said

the cell house smelled like a garbage dump. Hector Rivera

said it smelled like spoiled milk. Exercise periods and

showers were often denied for periods of several weeks,

and they never were allowed more than once a week.

Plaintiffs testified that they experienced skin disorders,

head and back pains, and musculo-skeletal problems that

they had not had before segregation, and that improved

when they were released from segregation. Stateville med-

ical personnel testified that inmates in segregation were

less healthy than inmates in the general population.

Dr. Harold Shuman, Stateville’s Medical Director, testi-

fied that segregation inmates consume 25% more medical

services than inmates in the general population. State-

ville’s health services reports show that generally 15% to

30% (and in one month 71%) of the inmates examined each

month by physician’s assistants were segregation inmates,

although the segregation unit housed only 10% of the

more than 2,000 inmates of Stateville.

Plaintiffs (Pennie, Davenport, Rivera, McBride, and Rich-

mond) experienced sleep disorders, nightmares, violent

fantasies, and thoughts of suicide while in segregation, and

two of them (Davenport and McBride) sought psychiatric

counseling. Plaintiffs witnessed bizarre and self-destructive

behavior of other inmates in segregation. Defendant De-

Robertis testified that suicide and suicide attempts are

more common in segregation than in the general popula-

tion.

App. 24

Dr. Ronald Shansky, Medical Director of the Illinois De-

partment of Corrections, testified that permitting segrega-

tion inmates only one hour of out-of-cell exercise and one

shower per week is ‘medically unacceptable.’”’ He stated

that limiting inmates to one shower per week increases

the likelihood of skin disease and infection, and makes in-

mates feel “less than human.” Dr. Shansky considers

three showers per week “essential” to maintain inmates’

mental and physical well-being. Dr. Shansky also testified

that limiting inmates to one hour per week of out-of-cell

exercise is ‘medically unacceptable” because it can lead

to deterioration of the cardio-vascular system, hardening

of the arteries, atrophy of muscles, musculo-skeletal prob-

lems, and adverse psychological effects. Dr. Shansky

stated that limiting inmates to one shower and one hour

of exercise per week would increase inmates’ need for

health care. Shansky testified that his conclusion that such

a limitation on showers and exercise was “medically unac-

ceptable” at Menard in 1976 is equally applicable at State-

ville in 1986.

Professor Leon McConville testified, based on his study

of penological matters, that prolonged idleness and isola-

tion can cause mental illness and physical deterioration.

He stated that limiting inmates to one hour per week of

out-of-cell exercise carries grave risks with no penological

justification.

Dr. Terry Brelje said that there is a correlation, noted

in the professional literature, between prolonged isolation

and various psychopathological symptoms.

It is undisputed that Stateville’s segregation unit allows

inmates far less out-of-cell exercise than other segrega-

tion units in maximum security prisons. Dr. John Harness

testified that every segregation unit he has visited pro-

vides more outside exercise than Stateville.

Professor McConville testified that the general practice

in maximum security prisons in civilized countries is to

permit all inmates 5-7 hours of exercise per week, and

that he knows of no other prison in a civilized country

App. 25

that limits inmates to one hour of exercise per week.

Every federal penitentiary, including the ‘Level VI’

prison at Marion, Illinois, permits segregation inmates

more hours of out-of-cell exercise per week. McConville

concluded that Stateville’s exercise limitation is without

penological justification.

The evidence supports the jury’s finding of cruel and

unusual punishment. “ ‘Lack of exercise may certainly rise

to a constitutional violation.’”’ Shelby County Jail In-

mates v. Westlake, 798 F.2d 1085, 1089 (7th Cir. 1986)

(quoting French v. Owens, T77 F.2d 1250, 1255 (7th Cir.

1985)). The jury’s verdict is consistent with cases holding

similar limitations on out-of-cell exercise to be cruel and

unusual punishment. Campbell v. Cauthron, 623 F.2d 503,

507 (8th Cir. 1980) (each inmate that is confined to his

cell for more than sixteen hours per day shall ordinarily

be given the opportunity to exercise for at least one hour

per day outside the cell); Spain v. Procunier, 600 F.2d

189, 199 (9th Cir. 1979) (“There is substantial agreement

among the cases in this area that some form of regular

outdoor exercise is extremely important to the psycho-

logical and physical well being of the inmates.”); Lightfoot

v. Walker, 486 F. Supp. 504, 511 (S.D. Ill. 1980) (“one

shower and one hour of exercise per week... is nota

medically acceptable frequency or duration of showers or

exercise; it promotes deterioration of inmates physically.’’);

Hutchings v. Corum, 501 F. Supp. 1276, 1294 (W.D. Mo.

1980) (“in order to avoid inhumane conditions a minimum

of one hour of exercise per day for each inmate outside

the cell must be provided”); Bono v. Saxbe, 462 F. Supp.

146, 149 (E.D. Ill. 1978), affd in part and remanded in

part on other grounds, 620 F.2d 609 (7th Cir. 1980) (find-

ing “a minimum of four (4) hours weekly” of exercise to

be constitutionally inadequate and ordering “that inmates

in the Marion Control Unit be provided a minimum total

of seven (7) hours per week for physical exercise’’);

Frazier v. Ward, 426 F. Supp. 1354, 1368 (N.D.N.Y. 1977)

(finding ‘‘that the lack of adequate outside yard exercise

in the open air may inflict, depending on the strength of

App. 26

the individual, grave physical and psychological harm upon

the inmate’); Conklin v. Hancock, 334 F. Supp. 1119, 1122

(D.N.H. 1971) (ordering that plaintiff receive a daily shower

and exercise period); Morris v. Travisono, 310 F. Supp.

857, 869 (D.R.I. 1970) (ordering a minimum of two showers

a week and one hour a day of exercise).

In Lightfoot v. Walker, 486 F. Supp. 504, 511 (S.D. II.

1980), the court found that the same exercise and shower

limitations challenged here violated the eighth amendment

when used at Menard Correctional Center. A central issue

in this case was whether Stateville’s conditions are suffi-

ciently different from Menard to render the Lightfoot

panel’s conclusions inapplicable at Stateville. The medical

panel report relied upon by the Lightfoot court was intro-

duced into evidence. That report concludes that limiting

inmates to one hour of out-of-cell exercise and one shower

per week is “medically unacceptable.” Dr. Shansky, one

of the authors of the medical panel report and now Medi-

cal Director of the Department of Corrections, testified

that in his opinion, based upon his medical expertise and

his knowledge about both Menard and Stateville, the exer-

cise and shower limitations also are medically unaccept-

able at Stateville. The jury was entitled to believe him.

The jury’s finding of cruel and unusual punishment is sup-

ported by the evidence.

Defendants also argue that because plaintiffs did not

present medical expert testimony establishing that their

specific mental and physical ailments were caused by a

lack of exercise and showers, the defendants are entitled

to judgment notwithstanding the verdict.

Plaintiffs testified that they suffered emotional distress,

humiliation, personal indignity, and dejection as a result

of the denial of adequate out-of-cell exercise and showers.

The jury was entitled to believe them. These effects are

compensable actual injury under § 1983. See Memphis

Community School District v. Stachura, 106 S.Ct. 2537,

2543 (1986) (“compensatory damages may include...

‘personal humiliation, and mental anguish and suffering’ ”’);

App. 27

Carey v. Piphus, 485 U.S. 247, 264 (1978) (‘‘mental and

emotional distress ... itself is compensable under § 1983”’);

Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir. 1983)

(“emotional distress, humiliation, personal indignity and

physical injury” are “some of the elements of compen-

sable injury’’).

Isolation in solitary confinement can cause compensable

emotional damages even where there is no evidence that

it caused mental or physical deterioration. Chapman v.

Pickett, 801 F.2d 912, 916 (7th Cir. 1986) (“Chapman was

kept in virtual isolation for nine months with severe re-

strictions on his mobility and daily routine. We cannot

say that Chapman did not suffer actual damage.”’).

The jury was instructed that it could award nominal

damages of one dollar if it found that “‘a plaintiffs right

to be free from cruel and unusual punishment was vio-

lated,” but that “the plaintiff has not sustained actual

damages.” Instructions, p. 28. Defendants did not object to

this instruction, and it accurately states the law. Nominal

damages “are the appropriate means of ‘vindicating’ rights

whose deprivation has not caused actual, provable injury.”

Memphis Community School District v. Stachura, 106

S.Ct. 2537, 2544 n.11 (1986).

In Madison County Jail Inmates v. Thompson, 773 F.2d

834, 844 (7th Cir. 1985), the Seventh Circuit held that

nominal damages are an appropriate remedy in an eighth

amendment case where the plaintiffs fail to prove actual

injury proximately caused by cruel and unusual punish-

ment. Plaintiffs in that case challenged several conditions

of confinement, including the lack of a “recreation or exer-

cise program” at the jail. Jd. at 836. They submitted ex-

pert testimony that the challenged conditions ‘‘would cause

stress to anyone,” id. at 840, and that “about ten per-

cent of the population would react with significant emo-

tional or mental difficulty.” Jd. The trial court found that

the challenged conditions were cruel and unusual punish-

ment, but that the plaintiffs had not proved that those

conditions caused them actual injury. The court therefore

App. 28

awarded nominal damages. The Seventh Circuit affirmed,

reasoning as follows:

We agree with the district court that the evidence

was insufficient to establish actual harm for the 3,700

inmates for whom damages were awarded. While the

evidence does not support a finding of consequential

damages, nominal damages are appropriate.

Id. at 844.

There was ample evidence that the denial of adequate

out-of-cell exercise and showers was medically unaccept-

able and created a substantial threat of mental and physi-

cal injury to inmates. The jury was justified in finding

that plaintiffs were subjected to cruel and unusual punish-

ment. Because the jury declined to award substantial com-

pensatory damages, the adequacy of plaintiffs’ evidence

of damages is not at issue. Whether or not plaintiffs proved

actual damages, nominal damages were appropriate. The

jury’s verdict cannot be set aside for lack of adequate evi-

dentiary support.

B. Defendants’ Motion for a New Trial

Defendants contend that the court should have stricken

all of plaintiffs’ testimony about the physical and mental

- effects of solitary confinement upon them, arguing that

there is no evidence that the challenged conditions of con-

finement caused the effects plaintiffs reported.

Defendants acknowledge that the expert testimony, con-

strued in light most favorable to plaintiffs, establishes that

the challenged conditions ‘might, could, or are likely to”

cause the effects plaintiffs complain of. Defendants’ Memo-

randum of Law at 14, 17-18. From this testimony, along

with plaintiffs’ testimony that their ailments first occurred

in the segregation unit and improved when plaintiffs were

releaced from segregation, the jury could infer that plain-

tiffs’ ailments were caused by conditions in segregation.

The evidence was properly considered.

App. 29

Defendants argue that the court should not have per-

mitted Dr. Shansky to express opinions about conditions

at Stateville, because Dr. Shansky was not listed on the

pretrial order as an expert witness. Dr. Shansky was

listed as a witness in the pretrial order. He was not orig-

inally listed as an expert, just as Dr. Shuman, who gave

expert testimony for defendants, was not listed as an ex-

pert. Dr. Shansky’s title and his role in the Menard Panel

Report, however, made it clear that Dr. Shansky would

be asked medical questions which invariably involve opin-

ions. Plaintiffs moved to amend the pretrial order to list

Dr. Shansky as an expert witness on September 10, 1986.

The court granted that motion at a pretrial conference.

Defendants claim that they were surprised by Dr. Shan-

sky’s testimony about Stateville. They had no reason to

be surprised. The issue of Dr. Shansky’s testimony was

discussed at a pretrial conference. The court ruled that

Dr. Shansky would be required to testify as an expert,

and specifically noted that Dr. Shansky’s expert opinion

on the differences, if any between Menard and Stateville

would be relevant to this case. Plaintiffs’ counsel asked

Dr. Shansky whether his opinion about shower and exer-

cise restrictions at Menard was equally applicable at State-

ville. The defendants could not have been surprised that

plaintiffs asked this question.

Defendants knew what Dr. Shansky would say far bet-

ter than plaintiffs did. Dr. Shansky testified that he had

specifically informed defendant O’Leary that the shower

policy in Stateville’s segregation unit was medically un-

acceptable, and that Warden O’Leary promised to change

that policy. Defendants’ counsel were free to discuss this

case with Dr. Shansky before trial, although they success-

fully opposed plaintiffs’ attempt to take his deposition.

Acting pursuant to Fed. R. Evid. Rule 403, the court

granted plaintiffs’ motion in limine to exclude evidence

of plaintiffs’ past crimes not involving dishonesty or false

statement. Pursuant to that ruling, plaintiffs Richmond

and Pennie admitted their theft convictions but defendants

App. 30

were not permitted to introduce evidence of the specific

crimes (which did not involve dishonesty or false state-

ment) for which the other plaintiffs were incarcerated. De-

fendants argue that this court had no discretion under

Rule 463 to exclude evidence of plaintiffs’ past crimes,

not involving dishonesty and false statement, no matter

how prejudicial that testimony might be. The Seventh Cir-

cuit has not decided this issue. See Christmas v. Sanders,

759 F.2d 1284, 1290-91 (7th Cir. 1985). But there is a line

of authority which holds that Rule 403 can be invoked

in civil cases to exclude evidence of a plaintiff's prior

felony conviction. Wierstak v. Heffernan, 789 F.2d 968,

972 (Ist Cir. 1986); Radtke v. Cessna Aircraft Co., 707

F.2d 999, 1000 (8th Cir. 1983). See also authorities cited

in Christmas, 759 F.2d at 1291.

Even if defendants were entitled to introduce evidence

of plaintiffs’ crimes, the exclusion was not prejudicial. The

jury was told that all plaintiffs were convicted criminals

who had also violated prison rules. There was testimony

about how long they had been in prison and in segrega-

tion. Plaintiffs Pennie and Richmond testified about their

theft convictions. Defendants also introduced evidence that

Stateville is a maximum security prison for serious of-

fenses, that 30% of the Stateville inmates were there for

murder, and that most segregation inmates had been sent

to segregation for assault.

The court also excluded evidence of the specific rule vio-

lations for which plaintiffs (other than Roger Pennie) were

sent to se tion, for the same reason that it excluded

evidence of crimes for which plaintiffs were sent to

prison: such evidence would have been more prejudicial

than probative. It might have suggested to the jury that

particular plaintiffs were evil men who did not deserve

consideration of their crimes.

The ruling was made in response to the defendants’ ob-

jection to Roger Pennie’s testimony about the reasons for

his confinement in segregation. Pennie testified that he

was sent to segregation for attempted escape, and started

App. 31

to testify that he was later acquitted of the charge

in a criminal trial. Defendants objected to the latter tes-

timony, because it suggested that Pennie was unjustly

confined in segregation. The court sustained defendants’

objection, and ruled that no further evidence of the rea-

sons (or lack thereof) for plaintiff's confinement in segre-

gation would be admitted.

Defendant O’Leary testified that some inmates were in

pay ome for murders committed in prison. Superinten-

dent ro and defendants testified at great length (and

without objection) about the violent propensities of the

tion inmates; how they would run wild when let

out of their cells, fight with each other and with guards

and destroy prison fixtures. Defendants also introduced

evidence that 30% of the inmates in Stateville are there

for murder, that 70% are there for Class X or Class I

felonies, that most of the inmates in segregation are there

for assault, and that segregation inmates generally com-

prise “the worst of the worst.”

Plaintiffs, far from trying to exclude this evidence, read-

ily admitted it. Plaintiffs testified about the frequency of

their visits to the adjustment committee, and about the

bizarre and disruptive behavior of other inmates in segre-

gation. On cross-examination they acknowledged that they

had been sent to segregation for violation of prison rules.

Professor McConville testified about the violent behavior

of the segregation inmates (based on his interview with

Roger Pennie) and opined that violent behavior often is

caused by excessive isolation and idleness.

Defendants were not precluded from introducing evi-

wre ciygion ny their claim that se tion inmates are

violent, and that security concerns therefore justify shower

and exercise restrictions. Furthermore, the court specifi-

cally ruled that defendants were entitled to show that par-

ticular plaintiffs had been “fractious” while in segrega-

tion, and therefore could not safely be allowed out of their

cells for showers or exercise. Defendants were not prej-

udiced by the exclusion of the specifics of plaintiffs’ rule

violations.

App. 32

Defendants complain that the court did not aera

instruct the jury that the A.C.A. and American Medical As-

sociation standards do not establish constitutional minima.

Plaintiffs never suggested to the jury that the A.C.A. and

American Medical Association standards were dispositive.

From the start the jury was told to consider the totality

of the circumstances. This court’s instructions made clear

that expert opinions were not dispositive and that the case

was to be decided on the basis of the totality of the cir-

cumstances.

The court had no duty to go beyond the instruction it

gave and explicitly reject a notion—that the American

Medical Association and A.C.A. standards were disposi-

tive—that had never been suggested in the course of the

litigation. Brandes v. Burbank, 613 F.2d 658, 669 (7th Cir.

1980) (“The primary purpose of instructions is to tell the

jury what the applicable law is rather than what it is

not. . . . If the essential elements are imparted to the

jury, the judge has performed the necessary task.”’).

It would have been a mistake to give the instructions

proposed by defendants, since the instructions might have

confused the j or appeared to be a comment on the

evidence intended to favor the defense. Lenard v. Argento,

699 F.2d 874, 890 (7th Cir.), cert. denied, 464 U.S. 815

(1983) (“Repetitious instructions which place undue empha-

sis on matters favorable to either side constitute rever-

sible error.’’).

Defendants argue that the jury’s verdict must have been

an improper compromise because the jury found a consti-

tutional violation and injury, but awarded each individual

plaintiff gq ty in compensatory and $3.00 in punitive

. re is nothing improper about a finding of

constitutional violation and an award of nominal s

to particular individual plaintiffs. Carey v. Piphus,

U.S. 247, 264-67 (1978); Ustrak v. Fairman, 781 F.2d 573,

578 (7th Cir.), cert. denied, 107 S.Ct. 95 (1986); Madison

momy Ane Inmates v. Thompson, 773 F.2d 834 (7th Cir.

1985). Nominal damages are particularly appropriate where,

App. 33

as here, the evidence of serious injury to the plaintiff class

(e.g., suicide attempts, disproportionate use of medical ser-

vices) was stronger than the evidence of serious injury

to the individual plaintiffs. Madison County Jai’ Inmates,

supra (evidence that “about ten percent of the popula-

tion would react with significant emotional or mental diffi-

culty” and “severe stress” justified award of nominal dam-

ages). Finally, plaintiffs’ attorneys stated to the jury in

final argument that they were more interested in the jury

finding “cruel and unusual punishment” than in money

damages—clearly inviting an award of nominal damages,

but supportive of corrective relief.

Qualified Immunity from Damages and the

Application of the Eleventh Amendment

Defendants contend that they are individually immune

from monetary damages through the application of quali-

fied immunity. They argue that where application of con-

stitutional rules requires balancing, in this case a review

of the totality of conditions of confinement at a particular

facility, the doctrine of qualified immunity is applicable

since the law cannot be said to be clearly established.

In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the

Supreme Court held that “government officials perform-

ing 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.”

Two years later, in Davis v. Scherer, 468 U.S. 183 (1984),

the Court reaffirmed the holding in Harlow and stated:

“{Aln official would not be held liable in damages

under § 1983 unless the constitutional right he was

alleged to have violated was ‘clearly established’ at

the time of the violation.”’

Davis, 468 U.S. at 194 (emphasis omitted).

EO

App. 34

The Seventh Circuit has held that

[t]he words “clearly established . . . constitutional

rights” may not be used to read the defense of im-

munity out of federal tort law by the facile expedient

of stating constitutional rights in the most general

possible terms, so that anyone who prevails on the

merits of a claim based on (for example) the First

Amendment’s free exercise of religion clause, . . . can

defeat the defense of immunity simply by pointing

out that the right to the free exercise of one’s re-

ligion has long been a clearly established constitu-

tional right. The right must be sufficiently particular-

ized to put potential defendants on notice that their

conduct probably is unlawful.

Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986).

The Seventh Circuit has found that “there is one type

of constitutional rule, namely that involving the balanc-

ing of competing interests, for which the standard may

be clearly established, but its application is so fact depen-

dent that the ‘law’ can rarely be considered ‘clearly estab-

lished.’ ”’ Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.),

cert. denied, 107 S.Ct. 172 (1986). The Court noted with

approval Murray v. Gardner, 741 F.2d 434, 440 n.2 (D.C.

Cir. 1984), cert. denied, 470 U.S. 1050 (1985):

Government officials must be granted the ability to

pass unmolested through bogs of murky legal prece-

dent. They must not become prey to every hypothesis

of what the law might have come to forbid had it

eventually developed along certain lines. When the

law is clear, and an official’s duties delineated, then

he will not be able to rely on the immunity defense.

But we must not and do not demand that every gov-

ernment official skilled in guessing the future path

of the law.

The Court in Benson concluded that ‘“‘whenever a balanc-

ing of interests is required, the facts of the existing case-

law must closely correspond to the contested action before

the defendant official is subject to liability . . . qualified

_ loa

App. 35

immunity typically casts a wide net to protect govern-

ment officials from damage liability whenever balancing

is required.”’ 786 F.2d at 276.

In denying defendants’ motion to dismiss, this court re-

served ruling on the constitutionality of the exercise and

showers permitted plaintiffs. This court noted that “{aJs

stated by the Seventh Circuit in Wellman v. Faulkner,

715 F.2d 269, 274 (7th Cir. 1983), cert. denied, 104 S.Ct.

3587 (1984), ‘[vlarious prison conditions do not exist in _

isolation. Rather, challenged conditions must be viewed

in the light of other prison conditions that may aggravate

or mitigate the effect of the challenged conditions.’ ”

Memorandum Opinion and Order, September 13, 1984.

Constitutional entitlement by segregation unit inmates

to more than one shower and one exercise period per

week at Stateville was not clearly established law. ik

nois law provides that “{aJll institutions and facilities of

the Department shall provide every committed person

with access to . . . bathing facilities at least once each

week. . . .” Ill. Rev. Stat. ch. 38, ¢ 1003-7-2(a), eff. August

31, 1979. State statutes are presumed to be constitutional.

North Shore Post No. 21 of the American Legion v. Korzen,

38 Ill.2d 231, 230 N.E.2d 833 (1967).

In Pinkston v. Bensinger, 359 F. Supp. 95 (N.D. IIl.

1973), the court held that one hour of exercise and one

shower per week did not constitute cruel and unusual pun-

ishment at Joliet. In Preston v. Thompson, 589 F.2d 300

(7th Cir. 1978), the Seventh Circuit held that the district

court did not abuse its discretion when it issued a prelimi-

nary injunction which required prison officials at Pontiac

to provide, inter alia, two showers a week and daily

recreation to all inmates. The court stated that this might

go beyond the constitutional minimum. The dissent stated

a plan submitted by prison officials to provide one shower

a week for all inmates “would appear to meet minimal

constitutional standards.” Jd. at 306 (citing Sostre v. Mc-

Ginnis, 442 F.2d 178, 186 (2d Cir. 1971)). In Sostre,

hygienic conditions were found adequate where plaintiff

App. 36

was allowed to shave and shower with hot water once each

week and his cell had a sink with cold running water and

he was provided with soap and a towel. 442 F.2d at 186.

In Lightfoot v. Walker, 486 F. Supp. 504 (S.D. Ill. 1980),

the court found gross deficiencies in the health care sys-

tem and environmental deficiencies at the Menard Correc-

tional Center. One hour of exercise and one shower per

week for segregation inmates at Menard was not medical-

ly acceptable. In Dorrough v. Hogan, 563 F.2d 1259 (5th

Cir. 1977), the court affirmed the district court’s finding

that segregation inmates were not subjected to cruel and

unusual punishment in being limited to two one-hour exer-

cise periods a week. The district court had stated that

‘‘a court order requiring daily exercise is appropriate when

overall conditions are found to be sub-standard... .’’ Id.

at 1263 (emphasis added). In Walker v. Mintzes, 771 F.2d

920, 927 (6th Cir. 1985), the court found that differing cir-

cumstances from prison to prison explain minor differences

in constitutionally required yard time.

Consequently, the minimum amount of showers and exer-

cise constitutionally required depends on many facts in-

cluding the adequacy of the health care delivery system,

and the finding in Lightfoot, where health care was gross-

ly deficient, did not clearly establish a constitutional stan-

dard for Stateville where health care delivery is not con-

tested. Seventh Circuit cases support the position that

Lightfoot does not establish a constitutional standard in

the instant action. The Seventh Circuit has stated that

‘fin this circuit, we determine whether there have been

‘serious deprivations of basic human needs,’ . . . by ex-

amining the ‘totality of the conditions of confinement.’ ”’

French v. Owens, T77 F.2d 1250, 1252 (7th Cir. 1985), cert.

denied, 107 S.Ct. 77 (1986); Smith v. Fairman, 690 F.2d

122, 125 (7th Cir. 1982), cert. denied, 461 U.S. 946 (1983);

Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981).

In Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985), the

Sixth Circuit affirmed the district court’s order that pris-

oners in segregation be afforded one shower per week as

App. 37

a constitutional minimum. The district court in Walker

ordered that inmates in administrative segregation be

given 30 minutes of yard time each week. The matter of

yard time requirements was remanded for further consid-

eration and clarification.

The Seventh Circuit recently found that segregation in-

mates who received exercise twice a week and spent one

hour each week in the commissary were not subjected to

“wanton and unnecessary infliction of pain” because they

had to exercise in cramped quarters, and that the exer-

cise period allowed was within the constitutional minimum.

French v. Owens, 777 F.2d 1250, 1255-56 (7th Cir. 1985),

cert. denied, 107 S.Ct. 77 (1986).

In a matter as fact-bound as this, it cannot be said that

the defendants must have known that their conduct was

in violation of clear constitutional precedent in this cir-

cuit. Accordingly, to the extent that defendants are sued

in their individual capacity, they are entitled to qualified

immunity from compensatory or punitive damages. The

jury’s damage verdicts must be set aside.

Insofar as defendants are sued in their official capacity,

the action is one inst the state, Walker v. Rowe, 791

F.2d 507, 508 (7th Cir.), cert. denied, 107 S.Ct. 597 (1986),

and the eleventh amendment prohibits the imposition of

damages, but prospective injunctive relief may be consid-

ered to restrain future constitutional violations. Kentucky

v. Graham, 105 S.Ct. 3099, 3106 n.14 (1985). That is the

relief being sought.

III.

Equitable Relief

The court may rely on the jury’s findings of cruel and

unusual punishment in deciding the merits of the claim

for equitable relief. The legal liability fact issues decided

by the jury are the same as the equitable liability fact

issues. This court should accept the jury’s findings as

predicate for equitable relief after denying post-trial mo-

App. 38

tions. See Shelby County Jail Inmates v. Westlake, 798

F.2d 1085, 1092 (7th Cir. 1986).

Defendants acknowledge that some change in their pres-

ent exercise and shower policy “would be supported by

the record and meet the constitutional minimum.” Defen-

dants’ Memorandum in Opposition to Plaintiffs’ Motion for

Permanent Injunction, at 6.

Plaintiffs’ request for three showers per week and five

hours of out-of-cell exercise per week has ample support

in the record. Dr. Ronald Shansky, Medical Director of

the Department of Corrections, testified that to prevent

physical and psychological deterioration, Stateville segre-

gation inmates should be allowed at least three showers

per week and five hours of out-of-cell exercise per week.

The American Correctional Association standards also re-

quire three showers per week and five hours of out-of-

cell exercise per week in the absence of a security emer-

gency. Professor McConville testified that Stateville segre-

gation inmates should be given an hour of out-of-cell ex-

ercise every day. The standards of the American Medical

Association indicate “a daily minimum of one hour of exer-

cise involving large muscle activity, away from the cell.”

Defendants are providing Menard segregation inmates

with six hours of out-of-cell outdoor exercise per week and

three showers per week.

Superintendent Romero testified that exercise yard se-

curity measures are “adequate” and that the segregation

unit’s exercise yards can hold 20 inmates at a time. There

are about 200° inmates in the segregation unit. Also,

shower facilities are readily accessible to segregation in-

mates’ cells.

The proposed order would require five hours of out-of-

cell exercise per week; other courts have ordered seven

hours of out-of-cell exercise per week. Campbell v. Cau-

thron, 623 F.2d 503, 507 (8th Cir. 1980) (“each inmate that

is confined to his cell for more than sixteen hours per

day shall ordinarily be given the opportunity to exercise

for at least one hour per day outside the cell’); Bono v.

Pei caukalas

App. 39

Saxbe, 462 F. Supp. 146, 149 (E.D. Ill. 1978) (ordering

“that inmates in the Marion Control Unit be provided a

minimum total of seven (7) hours per week for physical

exercise’’), aff'd in part and remanded in part on other

grounds, 620 F.2d 609 (7th Cir. 1980).

The injunction would apply only to segregation inmates

confined for periods of 90 or more consecutive days. Dr.

Shansky testified that inmates confined for more than one

week need five hours of out-of-cell exercise per week.

Many courts have ordered daily exercise for prisoners con-

fined for periods of four days or less. Ruiz v. Estelle, 679

F.2d 1115, 1151 (5th Cir. 1982) (‘“‘each inmate must be af-

forded the opportunity for at least one hour of exercise

a day if he is in administrative segregation for more than

three consecutive days’); Hutchings v. Corum, 501 F.

Supp. 1276, 1294, 1279 (W.D. Mo. 1980) (“in order to avoid

inhumane conditions a minimum of one hour of exercise

per day for each inmate outside the cell must be pro-

vided” although most prisoners were incarcerated for only

one to three days).

The proposed order would not apply during temporary

emergencies and lockdowns which unfortunately are not

unusual at Stateville given the nature and size of the

population. There would also be an exception for fractious

inmates. These exceptions are reasonable. Conklin v. Han-

cock, 334 F. Supp. 1119, 1120, 1122 (D.N.H. 1971) (holding

that even though the plaintiff was ‘‘a high security risk’’

who had allegedly killed a guard in an escape attempt,

he must be allowed a daily shower and a “daily fresh air

exercise period of at least one hour’’).

Based on the record before the court, the proposed

relief is appropriate and should be granted. The elimina-

tion of cruel and unusual punishment is not only required

by the Constitution, it is goed penal practice. The recoil

of cruel and [sic] punishment is more crime, violence and

injury to individuals and to society.

IT IS THEREFORE ORDERED, ADJUDGED AND DE-

CREED as follows:

App. 40

(1) Plaintiffs’ motion to amend their complaint to con-

form to the evidence and sue defendants Lane and O’ Leary

in their official capacity is granted.

(2) Defendants’ motions for a directed verdict, judg-

ment notwithstanding the verdict and for a new trial are

denied.

(3) Defendants individually are entitled to qualified im-

munity from damages and, in their official capacity, the

eleventh amendment prohibits the imposition of damages.

The jury’s verdicts of compensatory and punitive damages

are set aside.

(4) Within 60 days after this order becomes final either

by expiration of the time to appeal or after appeal and

review, the following mandatory injunction shall take

effect:

Except in temporary emergencies and institutional

lockdowns, defendants Michael Lane and Michael

O’Leary, and their successors in the offices of Direc-

tor of the Illinois Department of Corrections and

Warden of Stateville Correctional Center, shall pro-

vide every Stateville segregation inmate who has

been confined in segregation for 90 or more consecu-

tive days the opportunity to shower at least three

times each week and to exercise outside of his cell

at least five hours each week; provided, however, that

if a segregation inmate violates prison rules during

his exercise or shower period, he may be denied the

exercise or shower rights provided herein for a rea-

sonable period of time pursuant to regulation ap-

proved by this court; provided, further, that other

reasonable exceptions to the shower and exercise

rights established herein may be created pursuant to

regulations approved by this court; provided, further,

that instances of denial of minimum shower and ex-

ercise periods must be documented.

(5) The court retains jurisdiction of the subject matter

and the parties to enforce or modify this injunction.

App. 41

(6) Plaintiffs may apply for attorneys’ fees/ and costs

within 60 days.? i

ENTER:

/s/ WILLIAM T. HART

United States District Judge

Dated: Jan. 30, 1987

2 Daniel M. Harris and Mitchell D. Raup of the firm of Mayer,

Brown & Platt and Joseph N. DiNatale and Edmund P. Wander-

ling of the firm of DiNatale & Montemurro were appointed to

represent the plaintiff class. Appointed counsel provided excellent

professional services on behalf of the plaintiffs.