# Petition for Writ of Certiorari — Lane v. Davenport

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 908

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0026%3A1. Public record. Not legal advice.