Petition for Writ of Certiorari — Pickett v. Chapman

Supreme Court, U.S.

97-28 FILED |

UL 2 1987

No.

JOSEPH F. SPANIOL, JR,

, ae

In the Supreme Court of the United States

OCTOBER TERM, 1987

GEORGE W. PICKETT, ET AL., PETITIONERS

Vv.

EDWARD JOSEPH X. CHAPMAN

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ANY Se

ea

oa re

QUESTION PRESENTED

Whether petitioners’ immunity from monetary lia-

bility under Harlow v. Fitzgerald, 457 U.S. 800

(1982), may be defeated by a showing that the gen-

eral legal standard governing their conduct had been

announced at the time of the relevant events, or

whether their immunity may be overcome only if pe-

titioners reasonably could have known that their ac-

tions violated that general legal principle.

(I)

II

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption,

Fred Frey, Earl Buzzard, Jack Culley, J. E. Brown,

and Eugene M. Cage were defendants in the district

court and are petitioners in this Court.

TABLE OF CONTENTS

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Appendix J

Appendix K

Appendix L

Appendix M ..

TABLE OF AUTHORITIES

Cases:

Adams V. Carlsun, 488 F.2d 619 (7th Cir. 1973)...

Anderson v. Creighton, No. 85-1520 (June 25,

ET 1 SE a

Bryant v. Harris, 465 F.2d 365 (7th Cir. 1972)

Harlow vy. Fitzgerald, 457 U.S. 800 (1982)

(111)

Page

IV

Cases—Continued: Page

Hutto v. Davis, 454 U.S. 370 (1982) ...............2...... ll

Rummel v. Estelle, 445 U.S. 263 (1980) —.............. 6, 7, 11

Solem v. Helm, 463 U.S. 277 (1983) ............-.---..------ 11

Weems v. United States, 217 U.S. 349 (1910) ........ 10, 11

Constitution:

U.S. Const. :

Amend. I (Religion Clauses) ............................... 4,5,7

4, 5, 6, 7,8

pO Eg RRB, EES A AER Ree Spe a ee IE TEN?

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No.

GEORGE W. PICKETT, ET AL., PETITIONERS

Vv.

EDWARD JOSEPH X. CHAPMAN

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Solicitor General, on behalf of George W.

Pickett, Fred Frey, Earl Buzzard, Jack Culley, J. E.

Brown, and Eugene M. Cage, petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Seventh Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-33a) is reported at 801 F.2d 912. Two prior opin-

ions of the court of appeals (App., infra, 45a-59a,

60a-72a) are reported at 586 F.2d 22 and 507 F.2d

1246 respectively. Two prior judgment orders issued

by the court of appeals (App., infra, 34a-39a, 40a-

44a) are unreported. The opinion of the district

court (App., infra, 73a-84a) is unreported. One

: (1)

2

prior opinion of the district court (App., infra, 89a-

105a) is reported at 491 F. Supp. 967. Two other

prior opinions of the district court (App., infra, 85a-

88a, 106a-124a) are unreported.

JURISDICTION

The judgment of the court of appeals (App., infra,

125a-126a) was entered on September 15, 1986. A

petition for rehearing was denied on February 5,

1987 (App., infra, 127a-128a). On April 27, 1987,

Justice Stevens entered an order extending the time

within which to file a petition for a writ of certiorari

to and including June 5, 1987; on May 28, 1987, Jus-

tice Stevens entered an order further extending the

time within which to file a certiorari petition to and

including July 3, 1987. The jurisdiction of this Court

rests upon 28 U.S.C. 1254(1).

STATEMENT

1. In October 1972, respondent was incarcerated

in the federal penitentiary in Marion, Illinois, in con-

nection with his conviction for armed robbery. On

October 9, respondent was assigned to the prison

kitchen detail and was instructed by his supervisor—

petitioner J. E. Brown—to clean the food trays. The

food trays contained pork. Respondent, whose reli-

gious faith forbids the handling of pork, refused to

perform his work assignment. Brown informed re-

spondent that he would be subject to disciplinary ac-

tion if he did not perform the work assignment. Re-

spondent refused and told Brown that his God “had

once before punished a correctional officer who had

ordered him to handle pork in contravention of his

religious beliefs, by blowing him out of an oven at

3

the Leavenworth Federal Penitentiary.” App., infra,

109a; see also id. at 2a, 46a-47a.'

Brown subsequently filed an incident report charg-

ing respondent with “violating prison code 303, ‘Fail-

ing to perform work as instructed by a supervisor’ ”

(App., infra, 2a-3a, 47a, 109a). On October 11, the

prison Adjustment Committee, which included peti-

tioners Jack Culley, Earl Buzzard, and E. M. Cage,

met to consider Brown’s report. Respondent admitted

the facts alleged in the report and explained that his

religion barred him from handling or serving pork.

The committee decided to place respondent in segre-

gation. Respondent’s status was considered at several

subsequent meetings, and he was returned to the gen-

eral prison population on July 25, 1973, after spend-

ing 289 days in segregation. App., infra, 3a, 47a-48a,

110a-11la.*

'It was subsequently determined that respondent was not

involved in the Leavenworth incident. App., infra, 2a n.1,

109a.

2? Respondent at one point wrote to petitioner George W.

Pickett, the prison warden, requesting his release from segre-

gation and a statement of the reasons for his confinement:

respondent did not receive a reply. On March 15, 1973, Pickett

received a copy of a letter written by the Director of the

Federal Bureau of Prisons indicating that prisoners should

not be assigned to handle pork if that task conflicted with their

religious beliefs. App., infra, 3a, 47a-48a, 111la.

The court of appeals observed (App., infra, 3a-4a) that

{wlhile in segregation, Chapman had no social] contact

with other inmates. Many of his religious materials were

confiscated and he had no opportunity to attend religious

services. While prisoners in the general population were

allowed out of their cells up to 12 hours a day, Chapman

was only allowed out for exercise a few times each week

and then only for 15 to 30 minute intervals. He was

4

2. In April 1973, respondent commenced this ac-

tion against petitioners—six federal officials holding

various positions at the Marion facility. Respondent

sought an order directing his release from segrega-

tion, other declaratory and injunctive relief, and

money damages from petitioners in their personal

capacities for alleged violations of his constitutional

rights. In particular, respondent asserted that peti-

tioners had violated his rights under the Religion

Clauses of the First Amendment, his right to proce-

dural due process, and his Eighth Amendment right

to be free of cruel and unusual punishment. The dis-

trict court held a hearing at which respondent ap-

peared pro se. The court subsequently entered judg-

ment for petitioners, holding that respondent had

failed to prove the allegations in his complaint and

that his claim for injunctive relief was moot because

he had been released from segregation. App., infra,

61a-62a.

The court of appeals reversed in part (App., infra,

60a-72a). It upheld the district court’s determination

that respondent’s claim for an order directing his re-

lease was moot, and it concluded that petitioners were

entitled to judgment on respondent’s due process

claim. With respect to the First and Eighth Amend-

ment claims, however, the court of appeals held that

the district court had erred by prematurely terminat-

ing respondent’s evidentiary presentation. The court

therefore remanded the case to the district court for

further consideration of those claims.

unable to bathe as frequently as those in the general

population, was unable to request food that complied

with his religious dietary restrictions, and received no

vocational training.

5

Following a trial, the district court entered a de-

claratory judgment stating that respondent’s confine-

ment in segregation violated the Eighth Amendment;

the court denied all of respondent’s other claims for

relief (App., infra, 106a-124a). The court of appeals

again reversed in part (id. at 45a-59a). The court of

appeals first held that petitioners were entitled to

immunity from damages liability on respondent’s

First Amendment claim because “the specific right at

issue here—that of a prisoner to refuse an order re-

quiring him to handle foodstuffs forbidden by his

religion—was not ‘clearly established’ in October

1972” (id. at 51a).*

Turning to respondent’s Eighth Amendment claim,

the court of appeals observed that “ ‘punishment

which is disproportionate to the offense committed

constitutes cruel and unusual punishment, whether

imposed without or within prison walls’” (App.,

infra, 56a, quoting Adams vy. Carlson, 488 F.2d 619,

635-636 (7th Cir. 1973)). The court found that

“Ta]t the very least, the period of [confinement for]

nearly seven months from October 11, 1972 to May 5,

1973 was manifestly disproportionate to the offense

of failing to perform work as instructed,” especially

in view of the religious reasons underlying plaintiff’s

refusal to perform the work (App., infra, 56a (em-

phasis in original) ). The court of appeals held that

the district court had erred by concluding that the

’ The court of appeals directed the district court to consider

respondent’s entitlement under the First Amendment to ex-

pungement of the record of his punishment, and it found that

respondent’s other claims for injunctive and declaratory relief

were moot (App., infra, 52a-54a). The district court subse-

quently ordered expungement of the punishment from re-

spondent’s records (id. at 95a-100a).

6

Eighth Amendment violation could not support an

award of damages. It directed the district court to

determine the extent to which respondent’s confine-

ment violated the Eighth Amendment and to calculate

the damages to which respondent was entitled for

that Eighth Amendment violation. /d. at 57a-58a.

The court of appeals further held that petitioners

were not entitled to immunity from damages liability

on the Eighth Amendment claim (App., infra, 58a-

59a (footnote omitted) ) :

There can be no serious contention with the

fact that the right to be free from disproportion-

ate punishment has long been “clearly estab-

lished.” At least as early as 1910, the Supreme

Court declared it to be “fa precept of justice”

that punishment for crime must be _ propor-

tioned to the offense, lest it be found to be cruel

and unusual. Weems v. United States, 217 U.S.

349, 367 * * * (1910). This being so, the ques-

tion becomes one of whether [petitioners] ‘‘knew

or should have known’’ that their confinement of

[respondent] to segregation was or became

grossly disproportionate to the offense with

which he had been charged. But this question

almost answers itself, for if a point in time can

be determined when the punishment became so

seriously disproportionate as to violate the

Eighth Amendment, at that time point [petition-

ers] “should have known” that the punishment

was grossly excessive.

On remand, the district court stated that this

Court’s intervening decision in Rummel vy. Estelle,

445 U.S. 263 (1980), “collide[d] with the mandates

of [the court of appeals] and requires a total recon-

sideration of the Eighth Amendment issue in this

7

case” (App., infra, 101a).* The district court held

“Tijn light of Rummel” that respondent’s “length of

stay in segregation did not work a violation of his

rights under the Eighth Amendment to be free from

cruel and unusual punishment” (id. at 105a).

The court of appeals again reversed the district

court (App., infra, 40a-44a). It held that Rummel

“limited judicial inquiry into whether statutorily

prescribed punishments are proportionate to the of-

fenses to which they are attached,” but that “Rwmmel

does not apply to the administratively prescribed

punishment involved here’ (App., infra, 44a). The

court of appeals again directed the district court to

award damages on respondent’s Eighth Amendment

claim.°

In considering the question of the amount of dam-

ages, the district court stated that “[a] determina-

tion of when [respondent’s] punishment became dis-

proportionate essentially requires this Court to sit

as the adjustment committee hearing the refusal to

work charges” (App., infra, 77a). After weighing

the evidence that was before the adjustment com-

mittee, the district court held that respondent’s

* The case had been assigned to a different district judge

on remand.

5 On remand from that judgment, the district court entered

an order dismissing respondent’s Eighth Amendment claim

on the ground that respondent’s punishment could not be

disproportionate in violation of the Eighth Amendment, be-

cause the punishment had been found to be unlawful under

the First Amendment, but petitioners had been found to have

immunity with respect to respondent’s First Amendment claim

(App., infra, 85a-87a). (The case was again assigned to a

different district judge on remand.) The court of appeals

again reversed and again directed the district court to award

damages on respondent’s Eighth Amendment claim (id. at

34a-39a).

8

confinement in segregation “became disproportionate

after seven days” (id. at 78a). It awarded compen-

satory damages in the amount of $7,000 for the time

respondent was confined in segregation, declined to ,

award any punitive damages, and held that all peti-

tioners other than petitioner Brown were personally

liable for the damages awarded to respondent (id. at

82a, 84a).

3. The court of appeals afiirmed by a divided vote

(App., infra, la-33a). The majority concluded that

respondent had suffered actual damage, that the

amount of damages awarded was within the district

court’s discretion, that the district court did not err

by declining to award punitive damages, and that pe-

titioners each could be held personally liable for the

injury to plaintiff. See id. at 6a-l4a. The court of

appeals rejected petitioners’ claim that they were en-

titled to immunity from damages under Harlow vy.

Fitzgerald, 457 U.S. 800 (1982). The court noted

that it had rejected petitioners’ claim of qualified

immunity on the prior appeal, and stated that it

“d[id] not believe that Harlow changes the 1978 re-

sult” (App., infra, lla n.4).

Judge Easterbrook dissented (App., infra, 1l5a-

33a). He first concluded that petitioners’ actions did

not violate the Eighth Amendment (id. at 18a-24a).

He then stated that even if respondent’s constitu-

tional rights had been violated, petitioners were en-

titled to immunity from monetary liability. Judge

Easterbrook stated that “‘[u]ntil the constitutional

right has been stated so that reasonably competent

officers would agree on its application to a given set

of facts, it has not been ‘clearly established’ for pur-

poses of Harlow” (id. at 25a). Because “[o]fficers

of ‘reasonable competence could disagree’ about the

propriety of [petitioners’] conduct in 1973,” Judge

9

Easterbrook concluded that petitioners should have

been found to be immune from monetary liability (1d.

at 27a (citation omitted) ).

Petitioners filed a petition for rehearing and a sug-

gestion for rehearing en banc. Both the petition and

the suggestion were denied, with Judges Posner, Cof-

fey, Flaum, and Easterbrook voting to grant rehear-

ing en bane. See App., infra, 127a-128a.

REASONS FOR GRANTING THE PETITION

This Court held in Harlow v. Fitzgerald, 457 U.S.

800 (1982), that a government official’s entitlement

to immunity from personal liability in an action seek-

ing damages for alleged violations of the Constitution

turns upon the objective reasonableness of the offi-

cial’s actions. An official may be deprived of his

immunity only if he is found to have violated legal

rules that were “clearly established” at the time of

the challenged conduct (457 U.S. at 818-819). As the

Court observed in Harlow (457 U.S. at 819 (footnote

and citation omitted) ),

{w]here an official could be expected to know

that certain conduct would violate statutory or

constitutional rights, he should be made to hesi-

tate; and a person who suffers injury caused by

such conduct may have a cause of action. But

where an official’s duties legitimately require ac-

tion in which clearly established rights are not

implicated, the public interest may be better

served by action taken “with independence and

without fear of consequences.”

In its recent decision in Anderson v. Creighton, No.

85-1520 (June 25, 1987), this Court considered ‘“‘the

level of generality at which the relevant ‘legal rule’

is to be identified” for purposes of applying the Har-

10

low standard (slip op. 3). The Court observed that

“the right to due process of law is quite clearly es-

tablished by the Due Process Clause, and thus there

is a sense in which any action that violates that

Clause (no matter how unclear it may be that the

particular action is a violation) violates a clearly

established right. Much the same could be said of

any other constitutional or statutory violation” (id.

at 3-4). But “if the test of ‘clearly established law’

were to be applied at this level of generality,” the

Court stated, “it would bear no relationship to the

‘objective legal reasonableness’ that is the touchstone

of Harlow” (slip op. 4). The Court concluded that

in order for a right to be clearly established within

the meaning of Harlow, “t]he contours of the right

must be sufficiently clear that a reasonable official

would understand that what he is doing violates that

right. This is not to say that an official action is pro-

tected by qualified immunity unless the very action in

question has previously been held unlawful, but it is

to say that in the light of preexisting law the unlaw-

fulness must be apparent” (id. at 4-5 (citations

omitted) ).

The court below failed to apply that standard in

the present case. Its conclusion that petitioners are

not entitled to immunity rests solely on the determi-

nation that an abstract legal principle—the bar

against disproportionate punishment—had been es-

tablished at the time of the challenged action. Thus,

the court stated (App., infra, 10a-1la n.4, 58a-59a)

that respondent’s right to be free of disproportionate

punishment ‘was clearly established because this

Court in Weems v. United States, 217 U.S. 349, 367

(1910), indicated that the punishment for a crime

must be proportional to the offense. As Judge Faster-

11

brook discussed in detail in his dissenting opinion

(App., infra, 24a-27a), the court of appeals simply

did not consider whether Weems’ general discussion

of proportional punishment was by itself sufficient to

inform a reasonable official in the situation faced by

petitioners “that what [petitioners were] doing vio-

late[d] that right’? (Anderson, slip op. 4-5).° Ac-

cordingly, the judgment of the court of appeals should

be vacated and the case remanded to allow the court

of appeals to conduct the proper immunity inquiry.‘

6 The court of appeals cited two other cases in support of

its rejection of petitioners’ immunity defense. The first case,

Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973), was not

decided until after respondent was released from segregation.

It therefore provides no basis for concluding that respondent’s

Kighth Amendment right was clearly established prior te that

time. The second case, Bryant v. Harris, 465 F.2d 365 (7th

Cir. 1972), did not address the merits of any constitutional

claim; it simply vacated the district court’s sua sponte dis-

missals of several habeas corpus petitions and remanded the

actions for further proceedings. In the absence of any ruling

on the merits, Bryant obviously cannot be the basis for

clarification of any constitutional right.

7JIn our view, examination of the relevant case law makes

clear that petitioners could not have known that their conduct

violated the Eighth Amendment. As Judge Easterbrook ob-

served in his dissenting opinion, “[t]he answer to the question

‘was it clearly established in 1973 that the eighth amendment

forbids “excessive” administrative punishments’ is No” (App.,

infra, 27a). Solem v. Helm, 463 U.S. 277 (1983), was the

first case in which this Court held a criminal sentence invalid

on the ground that it was too long; prior decisions rejected

claims that the Eighth Amendment closely limited a sentenc-

ing authority’s discretion. See, e.g., Hutto v. Davis, 454 U.S.

370 (1982); Rummel v. Estelle, 445 U.S. 263 (1980).

Moreover, as Judge Easterbrook noted, this Court “has not

extended the principle of Sclem to intra-prison sanctions, and

12

CONCLUSION

The petition for a writ of certiorari should be

granted, the judgment of the court of appeals va-

cated, and the case remanded for further considera-

tion in light of this Court’s decision in Anderson v.

Creighton, supra.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JULY 1987

Solem itself suggests that only outrageous punishments (life

in prison for shoplifting) violate the eighth amendment.

No court to this day has held that nine months in prison is

cruel and unusual punishment for anything, even jaywalking.

* * * And because [respondent] was not sent to prison for

refusing to handle pork, but was just moved to a new cell in

prison, the analogy to other cases under the eighth amend-

ment is even weaker” (App., infra, 28a-29a (emphasis in

original) ). For these reasons, the court of appeals erred by

concluding that petitioners were not entitled to immunity.

\

APPENDIX A

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

Nos. 84-2842, 84-2913

EDWARD JOSEPH X. CHAPMAN,

PLAINTIFF-APPELLEE

Vv.

GEORGE W. PICKETT, WARDEN, U.S.

PENITENTIARY, MARION, ET AL.,

DEFENDANTS-APPELLANTS

Argued March 31, 1986

Decided Sept. 15, 1986

As Amended Sept. 25, 1986

Before CUMMINGS, Chief Judge, CUDAHY and

EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

After refusing on religious grounds to clean pork

off food trays, plaintiff, a prisoner at the federal pen-

itentiary in Marion, Illinois, was held in segregated

confinement for nine months. He filed suit contend-

ing that the punishment was excessive. After numer-

(la)

2a

ous trials and appeals, this court determined that de-

fendants—officials at the prison—had violated plain-

tiff’s eighth amendment rights. On remand, the dis-

trict court for the Central District of Illinois found

defendants individually liable to plaintiff for $7,000.

Defendants appeal the size of the award and the

finding of individual liability. Plaintiff cross-appeals

the award—arguing that it is too small—as well as

the district court’s failure to grant punitive damages.

We affirm.

Edward Joseph X. Chapman was convicted in 1969

of armed robbery and sentenced to 20 years in prison.

He was originally detained at the federal penitenti-

ary in Lewisburg, Pennsylvania, then at Leaven-

worth, Kansas, before being transferred to the Mar-

ion Penitentiary on October 4, 1972. On October 9,

1972, Chapman was assigned to kitchen detail. This

included removing trays from food carts and clean-

ing off the carts. Because the food trays had pork

on them, plaintiff, a devout Black Muslim whose faith

forbids any handling of pork, refused to perform the

task. James E. Brown, the supervising officer,

warned Chapman that if he did not complete his as-

signment he would receive a disciplinary citation.

Chapman still refused and told Brown that the last

person who had written a disciplinary report on him

had been “blown out of an oven” at Leavenworth two

months earlier.’

Brown filed a report with the prison’s Adjustment

Committee under Prison Code section 303, charging

Chapman with “failing to perform work as instructed

1In fact, an employee was involved in an oven accident at

Leavenworth, but Marion officials were aware that Chapman

was not suspected of involvement in the incident.

- 8a

by supervisor.” This report noted Chapman’s reli-

gious grounds for refusing to work. The report also

mentioned Chapman’s remark about the Leavenworth

incident, although Chapman was not charged with

threatening an officer. That same day, an investiga-

tion by a member of the Adjustment Committee con-

cluded that Chapman generally had a good attitude.

and noted that Chapman had found another prisoner

to remove the pork and had afterwards completed the

task. Chapman also performed his kitchen tasks the

following two days without incident.

On October 11, 1972, the Adjustment Committee

met on Brown’s report and concluded that Chapman

should be placed in segregated confinement for an in-

determinate period. Thereafter, Chapman’s status in

segregated confinement was reviewed regularly. At

one point, he wrote Warden George W. Pickett and

requested immediate release and an explanation of

why he was in segregation. This inquiry was not

answered. On March 15, 1973, Warden Pickett re-

ceived a copy of a letter dated March 9, 1973 from

the Director of the Federal Bureau of Prisons, Nor-

man A. Carlson, in which the director told Congress-

man Charles Rangel that prisoners should not be

assigned to details involving the handling of pork

if their religious beliefs forbade it. Despite this let-

ter, Chapman remained segregated. He was returned

to the general population on July 25, 1973, after

spending 289 days in segregation.

While in segregation, Chapman had no social con-

tact with other inmates. Many of his religious mate-

rials were confiscated and he had no opportunity to

attend religious services. While prisoners in the gen-

eral population were allowed out of their cells up to

12 hours a day, Chapman was only allowed out for

4a

exercise a few times each week and then only for

15 to 30 minute intervals. He was unable to bathe

as frequently as those in the general population, was

unable to request food that complied with his reli-

gious dietary restrictions, and received no vocational

training.

He initially filed suit in April 1973. After much

litigation,’ this court found Chapman’s eighth amend-

ment rights to have been violated by his extended con-

? Chapman originally sought declaratory and injunctive re-

lief and damages, alleging violations of his rights under the

first amendment’s free exercise clause, the fifth amendment’s

due process clause and the eighth amendment’s prohibition

against cruel and unusual punishment. After hearing from

only two witnesses, the district court entered judgment for

defendants on grounds that Chapman failed to prove any of

the allegations in his complaint and that his claim for a man-

datory injunction was moot because he had already been

released from segregation. On appeal, this circuit affirmed

the denial of a mandatory injunction ordering release but

reversed the dismissal of claims for damages and for certain

declaratory and prohibitory relief. Chapman v. Kleindienst,

507 F.2d 1246 (7th Cir. 1974). The court held that Chapman

had made a prima facie case for a first amendment violation,

that he had received procedural due process and that the

district court had erred in terminating testimony. The court

made no determination on Chapman’s eighth amendment claim

due to the inadequacy of the record. It remanded the case for

a new trial.

On retrial, the district court ruled that qualified immunity

shielded defendants from Chapman’s first amendment claim.

It found that plaintiff's eighth amendment rights were vio-

lated but refused to award money damages because no actual

damages were shown. On appeal this court affirmed the find-

ing of an eighth amendment violation and the determination

that the first amendment claim was barred by qualified im-

munity. The court reversed the finding that no actual damages

had been shown.

5a

finement in segregation. Chapman v. Pickett, 586

F.2d 22 (7th Cir.1978). The case was then remanded

to the district court for determination of who was

responsible for the eighth amendment violation, when

the violation began and what damages Chapman

should receive.*

The district court determined that segregating

Chapman for more than one week for failure to work

was impermissible. Based on prior awards for wrong-

ful segregation, the district court determined that

Chapman should receive $7,000. The court deter-

mined that the three members of the Adjustment

Committee, Jack Culley, E.M. Cage and Earl Buz-

zard were individually liable because they made the

determination that Chapman should be segregated

for an indefinite period. The court found Deputy

Warden Fred Frey liable for approving this inde-

terminate sentence. The court also found Warden

Pickett liable, based on the specific facts to which he

had stipulated. Pickett admitted having the author-

ity to override the Adjustment Committee’s determi-

nation. He admitted knowing of plaintiff’s confine-

ment after October 11, 1972. He also knew of Nor-

*On remand the district court determined that no eighth

amendment violation existed in light of Rummel v. Estelle, 442

U.S. 939, 99 S.Ct. 2879, 61 L.Ed.2d 309 (1979). Chapman v.

Pickett, 491 F.Supp. 967 (S.D.Ill. 1980). This circuit re

versed, ruling that Rummel did not apply to this case. Chap-

man v. Pickett, 645 F.2d 73 (7th Cir. 1980) (unpublished

order). The court found that the district judge had departed

from the law of the case and again remanded for a determi-

nation of when plaintiff’s eighth amendment violation began

and a calculation of what damages were appropriate. Chap-

man v. Pickett, 676 F.2d 697 (7th Cir. 1982) (unpublished

order).

6a

man Carlson’s letter stating that individuals should

not be forced to handle meat in violation of their

religious beliefs.

The district court did not award plaintiff punitive

damages, finding that the officers had not acted with

malice and that they legitimately believed that Chap-

man had threatened Officer Brown. Defendants now

appeal the award of more than nominal damages to

Chapman, contending that evidence of Chapman’s

threat should be considered in assessing the reason-

ableness of his confinement. Defendants also contend

that they should not be held individually liable. Chap-

man cross-appeals contending that the award of ac-

tual damages was too small in light of the length of

his confinement and claiming that his treatment war-

ranted punitive damages.

I.

Defendants first argue that Chapman is not entitled

to more than nominal damages because, even if he

was wrongfully confined for refusing to work on re-

ligious grounds, his comment that the last man who

had written a disciplinary report on him had been

blown out of an oven provided « reasonable basis for

his long-term segregation. Defendants note that this

comment was in Officer Brown’s report and was ad-

mitted by Chapman before the Adjustment Commit-

tee. As Chapman was an armed robber confined in a

maximum security prison, defendants contend, it was

reasonable to take his comment seriously and keep

him under stricter supervision for 289 days. Thus,

under Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042,

55 L.Ed.2d 252 (1978)—which holds that damages

are only recoverable when a deprivation of a right

would not have occurred absent a constitutional vio-

7a

lation—they conclude that Chapman is entitled to no

more than nominal damages.

In raising this argument, defendants attempt to

circumvent the settled law of this case. In 1978, this

circuit stated:

Defendants assert that Chapman’s remarks con-

cerning the supervisor at Leavenworth properly

may have been considered in determining the

length of Chapman’s confinement, even though

defendants admit the Leavenworth investigation

of the oven incident did not raise Chapman as a

suspect. If the prison authorities had wished to

charge Chapman with threatening another with

bodily harm, they could have done so; it was, in

fact, a separately listed “Prohibited Act” under

Prison Code § 004. No such charge was ever

made, nor was any hearing regarding it ever

held. Defendant Pickett did not even reply to

Chapman’s request for a formal explanation of

his confinement. The mere fact that the remark

was listed in the violation report and the investi-

gator’s report is not sufficient. Not having been

communicated to Chapman as a ground for the

decision, it may not properly be relied on as justi-

fying the punishment of indeterminate segrega-

tion.

Chapman v. Pickett, 586 F.2d 22, 28 n. 4 (7th Cir.

1978). Never in the nine months of his segregation

did any of the defendants profess that the remark

was the reason for Chapman’s being penalized. More-

over, the officials knew that Chapman was not sus-

pected of causing any harm to the employee at Leav-

enworth. We can only conclude that Chapman was

punished solely for the offense he was charged with

8a

—failing to perform work as instructed by his super-

visor. As the Adjustment Committe explained in its

Committee Action Report of October 11, 1972:

The inmate stated that he has a Muslim order

and that he always follows them to the letter.

It forbids one from being around pork much less

touch or eat. It is Allah’s way. Now that he is

in our house he will do as he is told.

Appendix for Plaintiff-Appellee, Cross-Appellant at

A-28. As a result of this determination, Chapman

was kept in virtual isolation for nine months with

severe restrictions on his mobility and daily routine.

We cannot say that Chapman did not suffer actual

damage.

II.

Granting that Chapman has suffered actual dam-

age, it is appropriate to consider his argument that

he should have received more than $7,000 in compen-

sation for his injuries. He notes that in certain in-

stances courts have overturned damage awards that

were substantially out of line with awards in similar

eases. See Levka v. City of Chicago, 748 F.2d 421

(7th Cir. 1984) ($50,000 award for victim of unwar-

ranted strip search reduced as excessive) ; Phillips v.

Hunter Trail Community Association, 685 F.2d 184

(7th Cir.1982) ($25,000 award for victim of Fair

Housing Act violation reduced as excessive). Plain-

tiff points out that he received approximately $25

per day for his injuries while other victims of wrong-

ful segregation have sometimes received more. See

Mary & Crystal v. Ramsden, 635 F.2d 590 (7th Cir.

1980) ($80 per day damages to juveniles who were

wrongfully confined) ; United States ex rel. Larkins

v. Oswald, 510 F.2d 588, 584 (2d Cir.1975) ($80 per

9a

day damages to segregated prisoner who was sub-

jected to strip search and probing of his anal cavity) ;

Maxwell v. Mason, 668 F.2d 361 (8th Cir.1981)

($100 per day for wrongful detention in solitary con-

finement).

The district judge sitting as factfinder has broad

discretion in assessing damages. See Saxner v. Ben-

son, 727 F.2d 669, 72-73 (7th Cir. 1984) (‘In view

of the general restrictions on appellate review of a

jury’s award of monetary damages we will not sub-

stitute our judgment in these circumstances for that

of the judge and jury who heard the testimony.’),

aff'd sub nom. Cleavinger v. Saxner, US. »

106 S.Ct. 496, 88 L.Ed.2d 507 (1985); Phillips v.

Hunter Trail Community Association, 685 F.2d at

191. His findings will not be overturned unless found

to be clearly erroneous. Plaintiff contends that the

decision here was clearly erroneous because some

prisoners received damages more than four times per

day greater than what he received.

An individual can always point to cases in which

others received more and say that he received too

little. To accept that argument is to say that a court

must match the most generous offer made elsewhere,

even though the circumstances of the case before it

may be different and even though it may be the

higher awards that less accurately reflect actual dam-

ages. In cases of wrongful segregation, at least one

other court has awarded sums to victims of wrongful

segregation similar to what Chapman received. See

Riley v. Johnson, 528 F.Supp. 333, 343 (E.D.Mich.

1981) ($25 per day). While some courts have

awarded larger amounts, this may have been due to

factors not present in Chapman’s case. For example,

the plaintiffs in Mary & Crystal v. Ramsden were

10a

juveniles. The plaintiff in United States ex rel. Lark-

ins v. Oswald was marched naked to his cell and sub-

jected to a strip search and the probing of his anal

cavity. The district judge was aware of these cases

when he calculated his award. We cannot say he

abused his discretion.

IIl.

Chapman also seeks punitive damages. A court

may award punitive damages “when the defendant’s

conduct is shown to be motivated by evil motive and

intent, or when it involves reckless or callous indif-

ference to the federally protected rights of others.”

Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625,

1640, 75 L.Ed.2d 632 (1983). Here, the district

court found that even though defendants’ good faith

belief that plaintiff had threatened an officer was not

a basis for segregating Chapman, it did provide

grounds for denying punitive damages. The award

of punitive damages is also within the sound discre-

tion of the district judge and his finding will not be

disturbed.

IV.

The final issue raised on appeal is whether defend-

ants may be held personally liable for plaintiffs dam-

age.* A plaintiff may establish personal responsibil-

* Defendants claim they should be immune from liability.

They initially argued that they were absolutely immune from

liability but this argument was foreclosed by the Supreme

Court’s decision in Cleavinger v. Saxner, U.S. ——, 106

S.Ct. 496, 88 L.Ed.2d 507 (1985), that members of prison

disciplinary committees receive only qualified and not absolute

immunity. The defendants now claim they should receive

qualified immunity from liability for violations of plaintiff's

eighth amendment rights. They did not advance a qualified

lla

ity “if the official acts or fails to act with a delib-

erate or reckless disregard of plaintiff’s constitutional

rights, or if the conduct causing the constitutional

deprivation occurs at her direction or with her

knowledge or consent.” Crowder v. Lash, 687 F.2d

996, 1005 (7th Cir.1982); Wellman v. Faulkner, 715

F.2d 269, 275 (7th Cir.1983). This test was clearly

satisfied as to the three members of the Adjustment

Committee and Associate Warden Frey. The mem-

bers of the Adjustment Committee made the initial

determination that plaintiff should be confined to seg-

immunity argument before the district court in this case. In

1978, this circuit rejected defendants’ qualified immunity

argument and concluded:

There can be no serious contention with the fact that the

right to be free from disproportionate punishment has

long been ‘clearly established.’ At least as early as 1910,

the Supreme Court declared it to be ‘a precept of justice’

that punishment for crime must be proportioned to the

offenses, lest it be found to be cruel and unusual. Weems

v. States, 217 U.S. 349, 367 [80 S.Ct. 544, 549, 54 L.Ed.

793].

American Intern. Ins. Co. v. Vessel SS Fortaleza, 585 F.2d

22, 28 (7th Cir. 1978). Since that time the Supreme Court

has decided Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct.

2727, 73 L.Ed.2d 396 (1982). That case articulated an objec-

tive standard for determining qualified immunity. Under that

test “government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Jd. at 818, 102 S.Ct. at 2738. We do not believe

that Harlow changes the 1978 result. In 1972 it was estab-

lished that excessive punishment in segregated confinement

for the exercise of a religious right could subject prison

officials to liability. See Bryant v. Harris, 465 F.2d 365, 367

(7th Cir. 1972).

12a

regation. They met repeatedly during his time in

segregation to review his case. While in a position

to return plaintiff to the general prison population,

they kept him in segregation for nine months. Asso-~

ciate Warden Frey participated in many of the meet-

ings concerning Chapman’s confinement. In his posi-

tion as supervisor, he too had the power to correct

plaintiff’s wrongful confinement. Under similar cir-

cumstances in Crowder we found the personal re-

sponsibility requirement had been met:

The evidence presented by Crowder indicated

that both Moore and Devero sat as members of

the disciplinary committee and, thus, partici-

pated directly in the “disciplinary hearings” by

which Crowder was repeatedly sentenced to con-

finement in the D.O. seclusion unit. In addition,

Crowder testified that Moore and Devero were

directly responsible for denying his requests for

legal assistance and legal materials. . . . More-

over, because Moore and Devero were personally

accountable for reviewing the status of inmates

held in D.O. seclusion, they could properly be

held liable for an eighth amendment violation if,

at any time, Crowder’s continued confinement in

D.O. seclusion became unlawfully disproportion-

ate to the seriousness of his prison infractions.

687 F.2d at 1006.

Warden Pickett’s personal liability presents a more

difficult question. Courts have exacting standards for

establishing supervisory officials’ personal liability

and hesitate to ‘saddle supervisors with responsibility

for decisions they did not make. The dissent points

to cases that have not met these exacting standards

13a

and apparently concludes that “supervisory officials

are not liable for failing to intervene to ameliorate

things.” However, the law does not accord supervi-

sors such sweeping freedom from liability. Rather,

established law holds that wnder certain circum-

stances supervisors may be personally liable for fail-

ing to act when they have knowledge of a constitu-

tional deprivation. See Crowder v. Lash, 687 F.2d

at 1005; Cf. McKinnon v. City of Berwyn, 750 F.2d

1383, 1391 (7th Cir.1984) (failing to supervise su-

bordinates may be actionable). The knowledge that

is required is not only that a constitutional depriva-

tion exists but also that the supervisor’s personal ac-

tion is necessary to set it right.

The requisite knowledge is present in this case.

Warden Pickett stipulated to knowing of Chapman’s

confinement and doing nothing about it, even after he

received a letter from the Director of Prisons—Pick-

ett’s own supervisor. He stipulated before the dis-

trict court

that among his duties was to see that discipline

was maintained at the prison; that as chief offi-

cer of the prison Mr. Picket[t] had the authority

to override the decisions of officers at the prison;

that Mr. Picket[t] was aware of Plaintiff’s

placement in segregation on October 11, 1972

and that he was continued and confined there

until July 25, 1973; that on March 15, 1973 Mr.

Picket[t] received a copy of a letter from Nor-

man A. Carlson, Director, Federal Bureau of

Prisons to Representative Charles Rangel. The

letter indicated, . . . “We have your letter of

January 11, 1973 concerning Mr. Edward Chap-

man. In your letter we take exception to your

l4a

statement of January 17, 1973, that men of the

Black Muslim Faith at our facility were as-

signed the task of handling pork. We reviewed

the situation and have communicated to the

heads of the department of instructions not to

assign individuals to details where they must

work with pork as it is against their religious

beliefs.”

Transcripts of Proceeding Before District Court,

Nov. 3, 1976 at 95.

Pickett was the official at Marion to receive Di-

rector Carlson’s communication, which should have

put him on notice that Chapman was wrongfully seg-

regated. While that placed him in the best position

to know that a constitutional deprivation had oc-

curred and while he had the authority to remedy the

situation, he did nothing. Chapman remained in seg-

regated confinement for more than four more months.

Under these circumstances, the district court was en-

titled to find Warden Pickett personally liable and we

cannot say this disposition was clearly erroneous.®

5 The dissent is in all other particulars an attack on Chap-

man v. Pickett, 586 F.2d 22 (7th Cir. 1978). None of the

points raised by the dissent (apart from the immunity argu-

ments) has been argued by the government here for the very

good reason that, except under rare circumstances, one panel

of this court may not overrule a result reached by another

panel. See Devines v. Maier, 728 F.2d 876, 880 (7th Cir.),

cert. denied, 469 U.S. 836, 105 S.Ct. 130, 83 L.Ed.2d 71

(1984) ; Appleton Electric Co. v. Graves Truck Line, Inc.,

635 F.2d 603, 607 (7th Cir. 1980) (“we have long held that

‘matters decided on appeal become the law of the case to be

followed . . . on second appeal, in the appellate court, unless

there is plain error of law in the original decision.’ ”’) (quot-

ing Kaku Nagano v. Brownell, 212 F.2d 262, 263 (7th Cir.

1954)). The law of the case doctrine has an extremely per-

15a

For the foregoing reasons the judgment of the

court below is AFFIRMED.

EASTERBROOK, Circuit Judge, dissenting.

This first amendment case has turned into an

eighth amendment one because of the court’s holding

in 1978 that the defendants have qualified immunity

from damages for punishing Chapman on account of

his religious beliefs. 586 F.2d 22, 25-26. The extent

to which public officials may or must accommodate

sincere religious beliefs has produced a series of cases

that are hard to reconcile and apply. These cases

divide the Justices deeply. E.g., Bowen v. Roy,

USS. , 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986);

Goldman v. Weinberger, US. , 106 S.Ct.

1310, 89 L.Ed.2d 478 (1986). See also Caldwell v.

Miller, 790 F.2d 589, 597-600 (7th Cir. 1986); Mi-

chael W. McConnell, Accommodation of Religion,

1985 Sup.Ct.Rev. 1. A humane prison administra-

tion accommodates religious beliefs when assigning

jobs, as the Bureau of Prisons now does, but it was

not clear in 1972 that it had to. I do not think it is

clear today, given cases such as Goldman and the

fact that a prisoner is more like a member of the

military than of free society. See also Madyun v.

Franzen, 704 F.2d 954, 958-60 (7th Cir.1983). This

suasive rationale in this case as in others, and one can hardly

imagine a matter more fraught with Pandora’s Box potential

than reopening the judgments reached by prior panels in the

same case. The “change of law” rationale offered by the

dissent for its extraordinary exploration of closed matters

seems to us, under the circumstances of this case, a license to

second-guess, or apply hindsight, to any number of otherwise

settled decisions of this court.

16a

establishes the immunity of the defendants from

damages under the first amendment.

This left for decision in 1978 the claim that nine

months in segregation is “excessive” for the offense

of refusing to handle pork in the kitchen. The panel

both found a violation of the eighth amendment and

rejected the defendants’ claim of immunity, stating:

“At least as early as 1910, the Supreme Court de-

clared it to be ‘a precept of justice’ that punishment

for crime must be proportioned to the offense, lest it

be found to be cruel and unusual. Weems v. United

States, 217 U.S. 349, 367, 30 S.Ct. 544, 549 54 L.Ed.

793 (1910). This being so, the question becomes

whether defendants ‘knew or should have known’ that

their confinement of Chapman to segregation was or

became grossly disproportionate to the offense with

which he had been charged. But this question almost

answers itself, for if a point in time can be deter-

mined when the punishment became so seriously dis-

proportionate as to violate the Eighth Amendment,

at that same point defendants ‘should have known’

that the punishment was grossly excessive. Thus,...

the defense of qualified official immunity is not avail-

able for damages arising out of Chapman’s Eighth

Amendment claim.” 586 F.2d at 28-29.

Several components of this decision are untenable.

One is that “excessively long” separation from the

general population of a prison violates the eighth

amendment. A second is that the general enunciation

of a right—such as “let the punishment fit the

crime’”—is the sort of clear articulation that dissi-

pates immunity. A third is that by 1973 this general

right had been applied to prison discipline. A fourth

is that official immunity does not apply to violations

of the eighth amendment.

|

17a

The majority does not discuss these holdings, on

which its judgment depends, even though the defend-

ants maintain that the immunity holding in 1978 is

incorrect and should be reviewed in light of more

recent cases. My brethren rely on the law of the

case.! It is unwise for one panel to undo the work

of another in the same case. Litigants should be

able to assume that panels of this court are alike.

Otherwise they will spend their time (and ours) try-

ing to convince each panel to follow or upset the last

decision. The law of the case is a salutary doctrine

even when a judge believes that an earlier decision

is wrong. Yet the doctrine has exceptions, the most

important being for intervening changes in the law.

See Arizona v. California, 460 U.S. 605, 618-19 &

n. 8, 103 S.Ct. 1882, 1891 & n. 8, 75 L.Ed.2d 318

(1983); Cameo Convalescent Center, Inc. v. Percy,

800 F.2d 108, 109-10 (7th Cir.1986); Chicago &

North Western Transportation Co. v. United States,

574 F.2d 926, 930 (7th Cir.1978). See also, eg.,

Devines v. Maier, 728 F.2d 876, 880 (7th Cir. 1984)

(discussing an exception for clear error in the earlier

decision, error that usually becomes “clear” because

of intervening decisions) ; Christianson v. Colt Indus-

tries Operating Corp., 798 F.2d 1051, 1056 (7th Cir.

1986) (a decision that is “manifestly incorrect” may

be reexamined even when there has not been an inter-

vening change of law). Although the majority’s

' Chapman also contends that the defendants have not pre-

served these issues, because they did not raise them in the

district court after the decision of 1978. They have done

what they must, however. A litigant need not pester the

district court with requests to violate the court of appeals’

mandate in order to preserve the right to ask the appellate

court to reexamine its earlier holdings.

18a

opinion applies the principles that have been estab-

lished in the earlier opinions in this case, it is appro-

priate to reexamine these principles in light of deci-

sions after 1978 and a few earlier decisions that the

panel overlooked in 1978. The portion of that deci-

sion based on the eighth amendment is wrong in just

about every particular. It ought not stand. More-

over, the majority introduces a new error, which I

discuss at the end of this opinion.

1. Weems, which the panel cited in 1978 for the

proposition that “excessive” punishments are forbid-

den, was a case about prison conditions, life at hard

labor in chains, rather than about the duration of

confinement alone. The other applications of the

eighth amendment to prisoners also are about con-

ditions—about the amount of space a prisoner has,

about the quality of the food, about medical care,

about freedom from injury. E.g., Whitley v. Albers,

— US. , 106 S.Ct. 1078, 89 L.Ed.2d 251

(1986) ; Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct.

2392, 69 L.Ed.2d 59 (1981); Caldwell, 790 F.2d

at 600-01; Duckworth v. Franzen, 780 F.2d 645 (7th

Cir. 1986); French v. Owens, 777 F.2d 1250 (7th

Cir. 1985). If Chapman had been sent to a hellhole,

he would have a claim under the eighth amendment.

But segregation at Marion is not infernal. Many

prisoners stay a lot longer than nine months in Mari-

on’s Control Unit, which is worse. Chapman does not

contend that the conditions of segregation indepen-

dently violated the Constitution.

If the conditions of segregation at Marion are

within the tolerable range, and if damages are not

the appropriate response to the reason Chapman was

put in segregation—as we must assume given the

holding that Chapman is not entitled to relief under

19a

the first amendment—then the duration of the segre-

gation was not unconstitutional. Chapman did not

tell the prison officials that he would start clearing

the dishes. He held to his beliefs. Every day Chap-

man was in segregation was a day on which he would

have refused to handle pork. So if the eighth amend-

ment establishes a principle of proportional length of

differential treatment within a prison, the defendants

did not transgress against it. This was no more a

violation of the eighth amendment than nine months’

confinement of a recalcitrant witness before a grand

jury would be.

The most substantial problem with our 1978 deci-

sion, however, is its assumption that a prisoner has

any legally protected interest in enjoying the same

conditions of confinement as other prisoners. Chap-

man did not serve an extra day because of his refusal

to handle pork. He simply had less pleasant condi-

tions. Suppose he had been transferred from a mini-

mum security prison to Marion because of his refusal

to do assigned work. His loss would have been

greater than the difference between the general popu-

lation and segregation at Marion. It is established,

however, that a conviction for crime allows executive

officials to place prisoners where they will, to subject

them to the range of conditions in the Nation’s many

prisons. Meachum v. Fano, 427 U.S. 215, 224-25, 96

S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976); Moody

v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n.

9, 50 L.Ed.2d 236 (1976); Olim v. Wakinekona, 461

U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983).

The question about “disproportionate sentences”

under the eighth amendment is whether a state has

deprived a person of his liberty for too long, given

the nature of the offense. There is a big difference

20a

between being in and being out of prison. Chapman’s

natural liberty, though, was not hanging in the bal-

ance. His liberty to select where and how he would

live had been extinguished by the judgment of convic-

tion. See Hudson v. Palmer, 468 U.S. 517, 524-28,

104 S.Ct. 3194, 3199-3201, 82 L.Ed. 2d 393 (1984).

That is why the Court held in Meachum that a con-

viction authorizes the state to confine a prisoner in

any of its institutions, even thoug!i one may be much

less pleasant than another. For the same reason a

state may confine its prisoners in any cel] within a

prison or change the prisoner’s regimen—individual

meals in segregation instead of group meals in the

general population, fewer showers, less exercise, and

so on. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct.

864, 869, 74 L.Ed.2d 675 (1983) (segregation within

a prison “is the sort of confinement that inmates

should reasonably anticipate receiving at some point

in their incarceration”). There is no constitutional

difference between segregation and the general popu-

lation; prisoners have no entitlement that prisons

have “general populations”, as our recent decisions

sustaining the “lockdown” of the entire population at

Marion for more than nine months shows. Caldwell,

790 F.2d at 600-05.

The panel did not discuss these principles in 1978.

It did not cite Meachum and similar cases. Hewitt,

which held that a prisoner does not have a constitu-

tional interest in remaining in the general popula-

tion, was not decided until 1983. True, Meachum

and Hewitt interpreted the fourteenth rather than

the eighth amendment. Yet these cases are not acci-

dents of pleading. The Court would not have ren-

dered a different decision if the prisoners had argued

their cases under the eighth amendment instead of

ee

2la

the due process clause of the fourteenth. After all,

the eighth amendment applies to the states only to

the extent it has been “incorporated’”’ in the due proc-

ess clause of the fourteenth. Meachum, Hewitt, Hud-

son (holding that prisoners have no legitimate ex-

pectation of privacy), and similar cases establish

that the Constitution does not entitle prisoners to live

in the best conditions a prison has to offer.

The state may create protected interests. It may,

for example, adopt rules providing that people will

be sent to Marion (or closer confinement within

Marion) only on account of misconduct. Rules re-

stricting the discretion of officials may establish le-

gitimate claims of entitlement of which prisoners

may be deprived only with due process of law. The

Court ultimately held in Hewitt that Pennsylvania’s

regulations created a legitimate claim of entitlement

to remain in the general population even though the

Constitution of its own force does not. See also Wolff

v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.

2d 935 (1974), and the treatment of Wolff in Mea-

chum, 427 U.S. at 225-27, 96 S.Ct. at 2538-40. The

question from this perspective is whether rules re-

stricted the discretion of the defendants to put Chap-

man in segregation for refusing to work. In 1980

we remarked on the difference between process and

substance in prison discipline, implicitly repudiating

the premises of our 1978 decision. Bono v. Saxbe,

620 F.2d 609, 611-12 (7th Cir.1980), holds that the

due process clause rather than the eighth amendment

governs the duration of segregated confinement at

Marion, unless the conditions of confinement are un-

constitutionally harsh.? Ours is not a due process

2 Bono replaces the eighth amendment analysis with one

styled “substantive due process”, see 620 F.2d at 615-18, and

———a=aaaaaaa

22a

case. Chapman had a hearing. He does not contend

that the hearing was procedurally defective or that

the defendants lacked authority under the regula-

tions then in force to put him in segregation. He

therefore cannot recover under the due _ process

clause, and he does not seek to do so.

There is one more way in which this case may be

argued under the eighth amendment. If the prison

officials knew that they had no basis to punish Chap-

man, but they put him or kept him in segregation

vindictively, this might state a claim. Prison offi-

cials must have some reason to impose punishment, if

they set up rules confining their discretion. Superin-

tendent of Walpole v. Hill, 472 U.S. 445, 105 S.Ct.

2768, 86 L.Ed.2d 356 (1985). The prison officials

had reason to punish Chapman. He defied a direct

order and said he would defy it again. He gave a

reason for disobedience, but under our 1978 decision

the defendants have immunity from damages on ac-

count of their refusal to accept his reason. It is as if

Chapman had been put in segregation for refusing

to press green shirts in the laundry, proclaiming

that green shirts look better crinkled. Involuntary

servitude is the portion of convicts, the thirteenth

amendment says. A prisoner who decides he will

this replacement is as inconsistent with Meashum, Moody,

Hewitt, and Olim as is our 1978 case. Hewitt knocked the

struts out from under Bono by holding that the Constitution

does not independently regulate transfers to segregation; an

analysis based on “substantive due process” assumes the

contrary. See also Gumz v. Morrissette, 772 F.2d 1395, 1405-

09 (7th Cir. 1985) (concurring opinion), cert. denied,

U.S. , 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986). But this

is not the time to deal with substantive due process, which

Chapman has not invoked. See also note 3 below.

23a

work only on terms satisfactory to himself must ex-

pect his confinement to become even more onerous

than it was. Chapman’s disobedience is justification

for discipline under Marion’s rules. More, the dis-

trict court found that the prison officials did not act

maliciously or vindictively; this is the basis on which

the court denied punitive damages. This potential

source of liability is foreclosed.

Marion is an explosive place. It is the Nation’s

maximum security prison, populated by violent and

intractable offenders who could not adjust to life in

other prisons. Administrators of prisons have hard

tasks. They cannot control the population without

authority over it, yet every exercise of authority may

expose them to liability. The Supreme Court has said

over and again that courts should respect prison offi-

cials’ exercise of judgment. We have said over and

again that the officials at Marion, whose task is espe-

cially difficult, deserve especial deference. E.g., Mc-

Collum v. Williford, 793 F.2d 903 (7th Cir. 1986)

(Marion may discipline prisoners on the basis of re-

ports vithheld even from the disciplinary committee,

although that might be impermissible at other pris-

ons). Officials may respond to judicial orders reduc-

ing their discretion by exerting control in other ways.

They can change the way the prison is organized.

There will be no more disobedience at Marion during

work details. Work has been cancelled. Guards or

contractors clean the dishes and press the shirts. The

prisoners stay locked in their cells. I doubt that they

count the trade a gain.

It is hard to imagine a rule more enervating than

one that allows a prisoner to collect damages from his

keepers on the ground that they should have returned

him to the general population, after an admitted of-

24a

fense, in six months rather than nine, or perhaps in

three weeks rather than four. This transfers effec-

tive authority from the warden to a jury; it in-

creases the risk of taking firm measures. The pris-

on’s officials will not know what they may do until

the case is over and the decision has been rendered

on appeal. Yet if administrators react to this threat

to their wallets by going easy on misconduct, the

result may be the deaths of prisoners and guards

alike. There have been too many deaths at Marion

to be sanguine about lax discipline. The Framers did

not decide in 1789 (when Congress sent the Bill of

Rights to the States) or 1791 (when Virginia pro-

vided the ratification necessary to put the first ten

amendments into effect) to commit to juries the

question whether a prisoner’s separation from the

general population lasted too long in light of the ser-

iousness of his offense. We have no authority to de-

cide so today.

2. Assume now that this is wrong, that Chapman

spent an unconstitutionally long time in segregation.

The defendants are entitled to immunity from liabil-

ity in damages unless their acts violated “clearly

established . . . constitutional rights of which a rea-

sonable person would have known.” Harlow v. Fitz-

gerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982). See also Cleavinger v. Saxner,

— US. ——, 106 S.Ct. 496, 504, 88 L.Ed.2d 507

(1985). The panel thought in 1978 that Weems had

“clearly established” that “excessive” punishments

are unconstitutional.

This is sleight of hand. It is always possible to

state the constitutional right at a level so general

that it “clearly establishes” the right in question. If

a question arises, such as whether an Attorney Gen-

25a

eral may authorize a national security wiretap with-

out a warrant, a court could reply that the Supreme

Court established a presumption in favor of war-

rants, and in 1967 the Court applied this to the inter-

ception of telephone conversations. So by the time

Attorney General Mitchell came to office, it was

“clearly established” that there had to be a warrant

for an interception. This was not, however, the

method the Supreme Court used to decide the case.

It asked instead when the general rule had been made

specifie—that is, when the Court first held that na-

tional security wiretaps require a warrant. See

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806,

2818-20 & n. 12, 86 L.Ed.2d 411 (1985). Similarly,

if a question arises whether an affidavit establishes

probable cause to obtain a warrant, a court could

say: “It has long been established that you need

probable cause to get a warrant, so if you got a war-

rant without probable cause you are liable.” But

“probable cause” is too general. In Malley v. Briggs,

— US. , 106 S.Ct. 1092, 89 L.Ed.2d 271

(1986), the Court concluded that the right question

is whether a well trained and careful official should

have known that his conduct would be viewed as un-

constitutional in light of the available precedents. It

wrote: “[d]jefendants will not be immune if, on an

objective basis, it is obvious that no reasonably com-

petent officer would have concluded that a warrant

should issue; but if officers of reasonable competence

could disagree on this issue, immunity should be rec-

ognized.” 106 S.Ct. at 1096; see also id. at 1098-99.

Until the constitutional right has been stated so

that reasonably competent officers would egree on

its application to a given set of facts, it has not

been “clearly established” for purposes of Harlow.

26a

In several cases since 1978 we recognized this. E.g.,

Zook v. Brown, 748 F.2d 1161, 1165 (7th Cir.1984) ;

Coleman v. Frantz, 754 F.2d 719, 730 n. 15 (7th

Cir.1985) ; Lojuk v. Johnson, 770 F.2d 619, 628 (7th

Cir.1985) ; Benson v. Allphin, 786 F.2d 268, 275-76

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

(7th Cir.1986), is the most recent, and its discussion

is dispositive (id. at 1801): ‘The words ‘clearly es-

tablished . . . constitutional rights’ may not be used

to read the defense of immunity out of federal tort

law by the facile expedient of stating constitutional

rights in the most general possible terms, so that any-

one who prevails on the merits of a claim based on

(for example) the First Amendment’s free exercise

of religion clause, however novel that claim is, can

defeat the defense of immunity simply by pointing

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

gion has long been a clearly established constitutional

right. The right must be sufficiently particularized

to put potential defendants on notice that their con-

duct probably is unlawful.” See also Hobson v. Wil-

son, 737 F.2d 1, 26 (D.C.Cir.1984), cert. denied,

USS. , 105 S.Ct. 1848, 85 L.Ed.2d 142 (1985).

Our decision of 1978 is a derelict—in this circuit

anyway. I recognize that it has company in other

circuits, e.g., Creighton v. City of St. Paul, 766 F.2d

1269 (8th Cir.1985), cert. granted under the name

Anderson v. Creighton, USS. , 106 S.Ct.

3292, 92 L.Ed.2d 708 (1986), but these decisions

predate Malley and do not explain why it is appro-

priate to take a broadly phrased right as “clearly

establishing” a particular application. Our court

should attorn to the standard of Azeez, under which

the law in 1972-73 had not “clearly established” that

27a

the eighth amendment forbids “excessive” terms of

segregated confinement within a prison.°

Officers of “reasonable competence could disagree”’

(Malley, 106 S.Ct. at 1096) about the propriety of

their conduct in 1978. As this opinion shows, judges

still disagree about the constitutional standards.

The defendants will take cold comfort in knowing

that they have been found liable—on the ground that

no reasonably well trained person could have be-

lieved they were entitled to act as they did—for doing

something that the district court thought they were

entitled to do (our decision in 1978 reversed the

district court) and that at least one judge of this

panel thinks the Constitution allows them to do. Cf.

Nix v. Williams, 467 U.S. 4381, 350-51, 104 S.Ct.

2501, 2512-18, 81 L.Ed.2d 377 (1988) (White, J.,

concurring). :

3. The answer to the question “was it clearly es-

tablished in 1973 that the eighth amendment forbids

‘excessive’ administrative punishments” is No. It is

3’ The panel intimated in 1978 that the prison officials should

have released Chapman to the general population soon after

the Bureau of Prisons adopted its policy against assigning

people to handle foods forbidden them by their religions. This

amounts to saying that the administrative rules of the prison

system “established” the constitutional right. Davis v. Scherer,

468 U.S. 183, 194 & n. 12, 104 S.Ct. 3012, 2019 & n. 12, 82

L.Ed.2d 139 (1984), holds otherwise. Davis establishes that

only when the rule establishes the claim for relief sued upon

does a violation of a “clear” rule abrogate an immunity. See

also Gramenos v. Jewel Companies, Inc., 797 F.2d 482, 434

(7th Cir. 1986). Chapman is not entitled to recover damages

on account of a violation of the Bureau of Prisons’ internal

rules, especially a rule that was adopted after he had been put

in segregation and that does not mention the appropriate

treatment of prisoners in Chapman’s position. It is the eighth

amendment or nothing.

28a

not so established today. It certainly was not so es-

tablished in 1973. Not until June 1988, when it de-

cided Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001,

77 L.Ed.2d 637, did the Supreme Court hold a crim-

inal sentence invalid because too long. Earlier cases

had held that the length of a punishment, as opposed

to its character (torture, death, and so on), is a mat-

ter for the judgment of the legislature and the sen-

tencing court. E.g., Hutto v. Davis, 454 U.S. 370,

102 S.Ct. 703, 70 L.Ed.2d 556 (1982); Rummel v.

Estelle, 445 U.S. 263, 100 S.Ct. 1138, 63 L.Ed.2d

382 (1980); Badders v. United States, 240 U.S. 391,

395, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916); How-

ard v. Fleming, 191 U.S. 126, 186, 24 S.Ct. 49, 50,

48 L.Ed. 121 (1903). Hutto and Rummel, decided

after 1978, show that the eighth amendment does not

authorize federal courts to insist that punishments be

finely proportioned to the crime. The Supreme Court

has not extended the principle of Solem to intra-

prison sanctions, and Solem itself suggests that only

outrageous punishments (life in prison for shoplift-

ing) violate the eighth amendment. No court to this

day has held that nine months in prison is cruel and

unusual punishment for anything, even jaywalking.‘

Statutes often authorize misdemeanors, a rag-tag col-

lection of small offenses, to be punished by a year’s

imprisonment. And because Chapman was not sent

to prison for refusing to handle pork, but was just

*I put to one side the remark in Robinson v. California,

370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962),

that one day is cruel and unusual for the crime of having a

common cold. Colds imprison the best of us, and at all events

the case dealt with the minimum requirements for criminal

punishment, not with the duration of imprisonment in rela-

tion to the gravity of the offense.

Hed ay J woul

29a

moved to a new cell in prison, the analogy to other

cases under the eighth amendment is even weaker.

The only case that arguably makes the right in

question sufficiently particular is Adams v. Carlson,

488 F.2d 619, 635-36 (7th Cir. Aug. 28, 1973), which

the. panel in 1978 said (586 F.2d at 27) establishes

that any “disproportionate” punishment in prison is

unconstitutional. Adams, based on principles-of pro-

cedural due process, preceded Meachum, Moody, and

Hewitt. It is no longer authoritative. Adams did

not hold that the eighth amendment directly limits

the duration of segregation from the general popula-

tion. Its discussion of the eighth amendment melds

principles of due process with those of proportion-

ality, and it ultimately holds that the claims before

it under the eighth amendment were not ripe for

adjudication. A decision concluding that it could not

resolve the dispute at hand—that Article III forbade

a disposition on the merits of the eighth amendment

claim—cannot “clearly establish” any legai principles,

not unless advisory opinions have become the law of

the land.

More to the point, Adams was decided after Chap-

man had been released from segregation! The case

arose out of a prison disturbance at Marion, whose

officials summarily confined a number of prisoners in

indefinite segregation. The prisoners sought an in-

junction to compel their release. The district court

held jat this confinement did not violate the consti-

tutional rights of the prisoners. Adams v. Carlson,

302 F.Supp. 882, 891-94 (E.D.IIll. Jan. 15, 1973). At

the time the defendants decided to keep Chapman in

segregation, then, they had recently been told by a

district court that prisoners at Marion had no econsti-

tutional rights that impeded lengthy segregation. It

30a

is beyond me how the defendants were supposed to

know the opposite—let alone how the opposite could

be said to have been “clearly established” in the

spring of 1973. See also Benson, 786 F.2d at 278.

4. Our decision of 1978 suggested that there can

be no immunity when the right in question is the

eighth amendment. The Ninth Circuit apparently

takes this view. Compare Haygood v. Younger, 718

F.2d 1472, 1488-84 (1983), modified en bane, 769

F.2d 1350, 1858-59 (1985), with Albers v. Whitley,

743 F.2d 1372, 1876, (1984), rev’d on other grounds,

— US. , 106 S.Ct. 1078, 89 L.Ed.2d 251

(1986). Another panel of this court has applied the

Harlow standard of immunity to a violation of the

eighth amendment, however, see Joseph v. Brierton,

739 F.2d 1244, 1249-50 (7th Cir. 1984), although it

rejected the defense on the facts presented, and at

least two other circuits hold that officials who violate

the eighth amendment may be immune from liability

in damages. Sampson v. King, 6938 F.2d 566 (5th

Cir.1982); McCray v. Burrell, 516 F.2d 357, 370-72

(4th Cir.1975) (en banc).

The Harlow standard logically applies to cases un-

der the eighth amendment. The definition of the

violation sometimes includes a mental! element (such

as “deliberate indifference”, see Whitley and Duck-

worth), but the test under Harlow is objective, so

that the mental element does not dispose of the im-

munity question. It is quite consistent to say that the

defendants wanted Chapman to suffer, or were in-

different to whether he did, and that a reasonable

person would have believed in 1973 that the infliction

of punishment was lawful. The police officer who

shoots a fleeing subject wants to injure that person,

but it does not follow that the officer never can claim

wt —

3la

immunity fer wrongful use of force. If a reasonably

well trained officer (Malley, 106 S. Ct. at 1098)

would have concluded that it was permissible to use

force, the defendant’s subjective intent to inflict pain

does not abrogate the immunity. So here. If a rea-

sonably well trained warden or disciplinary commit-

tee would have thought in 1978 that it was permis-

sible to keep someone in segregation for nine months

for a nonviolent (but deliberate) infraction of the

prison’s rules, an infraction the prisoner had pledged

to repeat, then there should be qualified immunity.

Only when the presence of the mental element that

defines the violation also shows that no reasonably

well trained official could have thought his behavior

proper, as in Joseph v. Brierton, is the existence of

a violation incompatible with immunity.

5. The discussion so far explores my disagree-

ments with the decision in 1978. I have one disagree-

ment with the decision of today. The district court

held former Warden Pickett liable along with his

subordinates. No evidence in the record shows that

Pickett authorized Chapman’s segregation or ap-

proved its duration. The stipulation to which the

majority refers shows only that the Warden knew

that Chapman was in confinement and did nothing,

even after receiving a letter stating that the Bureau

of Prisons had adopted a policy relieving people of

handling food to which they objected on religious

grounds. The record does not show that the Warden

read this letter (the stipulation says that he “re-

ceived” it) or that wardens in federal prisons cus-

tomarily review disciplinary cases in light of chang-

ing directives. For all the record shows, wardens

leave these things, along with most of the other tasks

of management, to their subordinates. Wardens es-

32a

tablish policy and assign tasks; detail work and daily

administration are among the tasks parcelled out.

The eighth amendment does not establish supe-

riors’ liability. A warden is liable only for what he

does, not for what he fails to prevent his subordi-

nates from doing. The division of labor and the dele-

gation of functions within a prison are not uncon-

stitutional. A warden asleep on the job will have to

answer to his superiors, but dozing off on company

time is not a violation of the Constitution. The

proper defendants are those who put Chapman in

segregation and, despite regularly reviewing his

status, refused to let him out. We have held that su-

pervisory officials are not liable for failing to inter-

vene to ameliorate things. E.g., Kunzelman v.

Thompson, 799 F.2d 1172-75 (7th Cir. 1986);

Vialker v. Rowe, 791 F.2d 507, 508-09 (7th Cir.

1986); Ustrak v. Fairman, 781 F.2d 573, 575-77

(7th Cir. 1986); Duckworth v. Franzen, 780 F.2d

at 650; McKinnon v. City of Berwyn, 750 F.2d 1383,

1390 (7th Cir. 1984); Wellman v. Faulkner, 715

F.2d 269, 275-76 (7th Cir. 1983), cert. denied, 468

U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984);

Crowder v. Lash, 687 F.2d 996, 1005-06 (7th Cir.

1982); Duncan v. Duckworth, 644 F.2d 653, 655

(7th Cir. 1981); Adams-v. Pate, 445 F.2d 105, 107

(7th Cir. 1971). Some of these cases are very simi-

lar to this. In Adams v. Pate, for example, the court

held that notice to a warden that a prisoner was

being beaten did not justify damages when the

warden did not take steps to prevent future beatings.

A prison may apportion responsibilities among of-

ficials without exposing supervisors to liability on the

ground that they failed to prevent what the sub-

ordinates were doing. The majority does not recon-

cile its holding with the cases I have cited. The

“clearly erroneous” doctrine, to which the majority

refers, applies to facts and inferences; I do not think,

however, that facts and inferences are disputed. The

question is whether on stipulated facts the warden

of a prison is liable for failing to prevent a violation

of the eighth amendment by his subordinates. The

stipulation of facts does not suggest, and the district

court did not find, that Warden Pickett had either

the personal role or the mental state required for a

violation of the eighth amendment.

34a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Before

HON. LUTHER M. SwYGERT, Senior Circuit Judge

HON. WILLIAM J. BAUER, Circuit Judge

HON. RICHARD D. CUDAHY, Circuit Judge

No. 81-1809

EDWARD JOSEPH X. CHAPMAN, PLAINTIFF-APPELLANT

vs.

GEORGE PICKETT, ET AL., DEFENDANTS-APPELLEES

Appeal from the United States District Court for the

Central District of Illinois, Danville Division

No. 75-C-2041—Judge Robert D. Morgan

January 4, 1982

JUDGMENT—ORAL ARGUMENT

This cause was heard on the record from the

United States District Court for the Central District

of Illinois, Danville Division, and was argued by

counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of the

said District Court in this cause appealed from be,

and the same is hereby, REVERSED and RE-

MANDED, in accordance with the order of this

Court entered this date.

vee

~ 48

35a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Before

Hon. LUTHER M. SWYGERT, Senior Circuit Judge

HON. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

No. 81-1809

EDWARD JOSEPH X. CHAPMAN, PLAINTIFF-APPELLANT

VS.

GEORGE PICKETT, ET AL., DEFENDANTS-APPELLEES

Appeal from the United States District Court for the

Central District of Illinois, Danville Division

No. CV 75-2-041—ROBERT D. MorRGAN, Judge

January 4, 1982

(Argued December 15, 1981)

ORDER

I.

This is the fourth time this case has been before

the court. In 1973, Chapman filed a pro se civil

rights action alleging: (1) violation of his First

Amendment right to free exercise of religion, (2)

_ denial of procedural due process at the disciplinary

eT

86a

hearing which preceded his segregation, and (3)

cruel and unusual punishment in violation of the

Eighth Amendment by assignment to segregation for

more than nine months. In Chapman I, 507 F.2d

1246 (7th Cir. 1974), we remanded the case for a

new trial.’

In Chapman II, 586 F.2d 22 (7th Cir. 1978), we

reversed the trial court’s finding as to the date an

Eighth Amendment violation occurred and reversed

the court’s determination that Chapman was not en-

titled to damages.” On the second remand, the dis-

trict court, 491 F. Supp, 967 (1980), found that

Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133

(1980), was dispositive of the Eighth Amendment

issue.”

In an unpublished order, December 12, 1980, we

remanded holding that Rummel v. Estelle was not

1 Chapman’s case was prematurely terminated before he had

completed presentation of his case. We held that Chapman’s

release from segregation did not moot his claims for monetary,

declaratory, or prohibitory injunctive relief.

2 The facts of this case were set out in detail in Chapman

II. We held that: (i) the defendants had official immunity as

a defense to Chapman’s First Amendment claim for money

damages under the first prong of the test enunciated in Wood

v. Strickland, 420 U.S. 308 (1975); (ii) defendants immunity

from monetary damages based on the First Amendment claim

did not render moot Chapman’s claims for injunctive and

declaratory relief; (iii) defendants qualified official immunity

on the First Amendment claim did not extend to the Eighth

Amendment violation and thus defendant had made out an

Eighth Amendment violation.

3 The court also ordered that the report of the incident and

the disciplinary action taken against Chapman be expunged

from his records. Injunctive relief was granted forbidding

further use of such record.

37a

applicable.* We stated that two issues remained in

this case: (1) when the violation began, and (2)

what the damage award should be. (Chapman III).

On remand, the court reviewed the record, briefs,

and prior decisions, and found it unnecessary to con-

duct another evidentiary hearing. In an order en-

tered April 20, 1981, the district court summarized

the prior findings and found no cognizable Eighth

Amendment claim and thus no entitlement to dam-

ages. In reaching this decision, the district court re-

lied on language in Chapman I, 507 F.2d 1246,

1252-53, which read:

Of course, if Chapman should be successful in

demonstrating that the sole reason for his segre-

gation was his refusal to obey an order that vio-

lated his First Amendment rights, there would

be no occasion to reach the Eighth Amendment

claim. For in that event the punishment would

be entirely impermissible and no question of dis-

proportionality would remain.

Because the defendants had qualified official immu-

nity from damages for the alleged First Amendment

violation, the district court held that Chapman was

not entitled to damages. Chapman appeals the order

of dismissal.

Il.

The issue on appeal is whether the district court

erred in finding that there was no Eighth Amend-

ment violation and thus no entitlement to damages.

We conclude that this was error.

* Rummel limited judicial inquiry into whether statutorily

prescribed punishments are proportionate to the offenses to

which they are attached. Rummel does not apply, as here, to

administratively prescribed punishment.

38a

An appellate decision establishes the law of the

case for all subsequent stages of the litigation. Thus,

the trial court is restrained with respect to those is-

sues that have been considered and resolved by the

appellate court. Holcomb v. United States, 622 F.2d

937, 940 (7th Cir. 1980). In Chapman II, 586 F.2d

22, 28 (1978), we stated that: “[i]t is questionable

whether indeterminate segregation was at all appro-

priate for the type of offense charged. At the very

least, the period of nearly seven months from Octo-

ber 11, 1972 to May 5, 1973 was manifestly dispro-

portionate to the offense of failing to perform work

as instructed, especially when viewed in light of the

facts that the refusal was based on religious grounds.

alias [A]s of March 9, 1973, the Bureau of

Prisons ‘had adopted a policy which prohibited as-

signment to kitchen clean-up detail of those prisoners

who refused to handle pork on religious grounds;

yet Chapman was not released from punishment for

this ‘offense’ until over four months later. The dis-

trict court should consider these facts on remand in

determining the extent of the Eighth Amendment

violation.” Moreover, we stated that the conditions

under which Chapman was confined should be trans-

lated into a realistic dollar figure as in Buise v.

Hudkins, 584 F.2d 223 (7th Cir. 1978).

Our instructions on remand were to determine

“when” Chapman’s segregation became an Eighth

Amendment violation. The district court had found

a violation and this finding was affirmed in Chapman

II. The district court found that Chapman’s confine-

ment constituted an Eighth Amendment violation as

of Mey 5, 1973. We found that as of March 9, 1973

a policy of the Bureau of Prisons prohibited confine-

ment for such “offense” as Chapman was charged.

39a

Thus, the question is when will we charge defend-

ants with notice or knowledge of their own prison

regulations. See Chavis v. Rowe, 643 F.2d 1281 (7th

Cir. 1981).

We reverse and remand for disposition in accord-

ance with our order of December 12, 1980, 7.e., when

the violation began, and what the damage award

should be.

Circuit Rule 18 will apply.

40a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Before

HON. WILLIAM J. BAUER, Circuit Judge

HON. JOHN MINOR WISDOM, Senior Circuit Judge *

HON. RICHARD D. CUDAHY, Circuit Judge

No. 80-1640

EDWARD JOSEPH X. CHAPMAN, PLAINTIFF-APPELLANT

V8.

GEORGE PICKETT, ET AL., DEFENDANTS-APPELLEES

Appeal from the United States District Court for the

Eastern District of Illinois, Danville Division

No. 75-C-2041—-Judge Harold A. Baker

December 12, 1980

* Hon. John Minor Wisdom, Senior Circuit Judge for the

United States Court of Appeals for the Fifth Circuit, sitting

by designation.

Pisce rin.

4la

JUDGMENT—ORAL ARGUMENT

This cause was heard on the record from the

United States District Court for the Eastern District

of Illinois, Danville Division, and was argued by

counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of the

said District Court in this cause appealed from be,

and the same is hereby REVERSED and RE-

MANDED with instructions, in accordance of the

order of this court entered this date.

42a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

- Before

HON. WILLIAM J. BAUER, Circuit Judge

HON. JOHN MINOR WISDOM, Senior Circuit Judge *

Hon. RICHARD D. CUDAHY, Circuit Judge

No. 80-1640

EDWARD JOSEPH X. CHAPMAN, PLAINTIFF-APPELLANT

vs.

GEORGE PICKETT, ET AL., DEFENDANTS-APPELLEES

Appeal from Eastern District of Illinois

No. 75-C-2041—Baker, Judge

Argued: November 3, 1980

December 12, 1980

* Honorable John Minor Wisdom, Senior Circuit Judge for

the United States Court of Appeals for the Fifth Circuit,

sitting by designation.

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ORDER

This appeal marks the third time this case has

come before the Court. Last time we affirmed the

district court’s conclusion that the appellant had suf-

fered a violation of his eighth amendment right to be

free from cruel and unusual punishment but re-

manded the case for reconsideration as to the extent

of the violation and the amount of monetary dam-

ages plaintiff should recover. Chapman v. Pickett,

586 F.2d 22, (7th Cir. 1978). While the case was

on remand, the United States Supreme Court decided

Rummel v. Estelle, 1980, U.S. , 68 L.Ed.2d

382, 100 S.Ct. 1133. In the district court’s view,

Rummel dictated a reversal of the earlier finding of

an eighth amendment violation. Because we assess

Rummel differently, we reverse and remand.

Chapman, the appellant, was a prisoner at the

Marion, Illinois federal penitentiary at the time this

claim arose. While assigned to a kitchen detail,

Chapman refused to handle pork because of the be-

liefs of his Black Muslim faith. His supervisor re-

ported him for failure to perform work as instructed

and a prison disciplinary committee decided to place

Chapman in segregated confinement for an indeter-

minate period. He was not released from segregation

until almost ten months later.

In holding that Chapman’s eighth amendment

rights had been violated, we applied the principle

that ‘punishment which is disproportionate to the

offense committed constitutes cruel and unusual pun-

ishment, whether imposed within or without prison

walls”. 586 F.2d at 27 (quoting Adams v. Carlson,

488 F.2d 619, 635-36 (7th Cir. 1973)). The Su-

preme Court’s decision in Rummel does not require

us to discard that principle. To be sure, Rummel has

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limited judicial inquiry into whether statutorily

prescribed punishments are proportionate to the

offenses to which they are attached. But by its own

terms, Rummel does not apply to the administratively

prescribed punishment involved here. The rationale

underlying the holding is that any inquiry into pro-

portionality inevitably involves value judgments con-

cerning the gravity of the offense and the severity of

the punishment. Since legislatures, rather than

courts, are the primary repositories of societal val-

ues, legislative choices concerning punishments for

crimes are entitled to a substantial amount of defer-

ence. That rationale is simply not applicable here

where the punishment decision was the product of

administrative, not legislative, judgment.

Since Rummel has not undermined the basis for

this court’s earlier decision that the punishment im-

posed upon the appellant violated his eighth aiiend-

ment rights, we reverse and remand to the district

court for determinations on the only two issues that

remain in this case: when the violation began and

what the damage award should be. Our decision

does not affect the unappealed holdings in the district

court’s opinion.

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APPENDIX F

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

No. 77-1859

EDWARD JOSEPH X. CHAPMAN, PLAINTIFF-APPELLANT

Vv.

GEORGE PICKETT ET AL., DEFENDANTS-APPELLEES

Argued April 13, 1978

Decided Oct. 30, 1978

Before CASTLE, Senior Circuit Judge, and

SWYGERT and SPRECHER, Circuit Judges.

SWYGERT, Circuit Judge.

In this case involving the constitutional rights of

a federal prisoner, plaintiff-appellant Edward Joseph

X. Chapman appeals the denial by the district court

after a bench trial of his prayers for injunctive,

declaratory, compensatory, and punitive relief. Chap-

man contends that defendants violated his First

Amendment rights by punishing him for his refusal

on religious grounds to handle pork during a kitchen

cleanup detail. Finding that defendants enjoy a

qualified official immunity from liability for dam-

46a

ages and ruling that the adoption of a new policy by

the Bureau of Prisons and plaintiff’s release on

parole mooted his requests for injunctive and de-

claratory relief, the district court refused to reach

the merits of Chapman’s First Amendment claim.

Although agreeing with Chapman that the punish-

ment he suffered was so disproportionate to the se-

verity of the offense with which he was charged that

it violated his Eighth Amendment rights, the district

court ruled that he was not entitled to monetary

damages because he had failed to show that actual

damages were suffered. We affirm the district court’s

finding of qualified immunity on the First Amend-

ment issue but reverse on the question of mootness.

As to the Eighth Amendment claim, we affirm as to

liability but reverse on the issue of damages.

I

Edward Joseph X. Chapman was a prisoner in

the federal penitentiary at Leavenworth, Kansas

when, on October 4, 1972, he was transferred to the

Marion, Illinois penitentiary. On October 9 Chap-

man was assigned to the kitchen detail, which as-

signment included transporting food carts and clear-

ing food off of them. When Chapman discovered that

the food trays in the carts contained pork, he went

to his supervisor, defendant J. E. Brown, and in-

formed him that because of the beliefs of his Black

Muslim faith, he could not handle the pork on the

trays. According to his testimony at trial, Brown

then offered Chapman the use of either gloves or

various kitchen utensils to enable him to complete

the task. While Chapman at trial denied that he was

offered these, he did acknowledge that, regardless of

such an offer, he would still have refused to do the

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work, since even indirect touching was forbidden.

Brown then advised Chapman that he would be

forced to write a disciplinary report on Chapman if

the task were not performed. Chapman responded by

saying that the last man who had written a report

on him concerning an incident of this nature had

been “blown out of an oven” at Leavenworth just

two months previously.

After the incident Brown filed a report charging

Chapman with violating Prison Code § 303, “Failing

to perform work as instructed by a supervisor.” His

report also mentioned the Leavenworth remark. An

investigative report, completed the day of the incident

by another official and sent to the prison’s Adjust-

ment Committee, stated that “Chapman had a very

good attitude.” It noted that “apparently through

Chapman’s efforts someone had removed the pork

from the cart and Chapman had finished cleaning

the cart.”

On October 11 the Adjustment Committee, which

included defendants Jack Culley, Earl Buzzard, and

E. M. Cage, met to consider Brown’s report. Chap-

man was present and, upon having the report read

to him, admitted the facts of the incident, again ex-

plaining that his refusal was the result of his Black

Muslim beliefs. The Committee decided to punish

Chapman by placing him in the segregation unit for

an indeterminate term.

Chapman’s status in segregated confinement was

reviewed periodically. At least once during this con-

finement Chapman sought a formal explanation of

his confinement from defendant George Pickett,

warden at Marion, and requested immediate release.

No reply from Pickett was received. During Chap-

man’s confinement on March 15, 1973, Pickett re-

48a

ceived a copy of a letter dated March 9, 1973 from

the Director of the Federal Bureau of Prisons, Nor-

man A. Carlson, in which the Director stated to Con-

gressman Charles Rangel that “We have re-examined

the situation and have communicated to the heads of

our facilities instructions not to assign individuals to

the details where they must work with pork if it is

against the religious beliefs of those men.” Chapman

was not returned to the general prison population,

however, until July 25, 1973. While in segregation,

Chapman did not eat foods containing pork. He was

not provided with added portions of items not con-

taining pork.

Prior to his release from segregation, Chapman in-

stituted this action. Following a one-day hearing

held on October 9, 1973, the district court for the

Eastern District of Illinois entered judgment for de-

fendants, ruling that Chapman’s request for an in-

junction was mooted by his release from segregation

and that Chapman had failed to prove his complaint.

On appeal to this court we affirmed the denial of a

mandatory injunction but otherwise reversed and

remanded the cause for a new trial, finding that the

claims for monetary, declarative, and prohibitive in-

junctive relief had not been mooted. Chapman v.

Kleindienst, 507 F.2d 1246 (7th Cir. 1974). We also

found that the district court had prematurely termi-

nated Chapman’s presentation of evidence and had

erred in concluding that Chapman had failed to prove

a prima facie case. Following the remand, a new

trial was held. The district judge feund Chapman’s

confinement in segregation was excessive after May

5, 1973 and declared that this violated Chapman’s

rights under the Eighth Amendment. All other re-

1s i nid asec

49a

lief prayed for by Chapman, however, was denied.

Chapman then brought this appeal.

II

Chapman first appeals the district court’s ruling

that the defendants enjoy qualified official immunity

from liability for the damages he claims to have suf-

fered as a result of their violation of his First

Amendment rights. The test currently employed to

determine the availability of the official immunity de-

fense was enunciated by the Supreme Court in Wood

v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d

214 (1975). Although that case involved the immu-

nity of local school board «.embers, the same test was

applied by this court to state correctional administra-

tors in Knell v. Bensinger, 522 F.2d 720 (7th Cir.

1975). The Supreme Court recently approved this

extension of the Wood test to prison officials and offi-

cers in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct.

855, 55 L.Ed.2d (1978).’

1It may be noted that Wood, Knell, and Navarette all were

42 U.S.C. § 1983 cases against state officials, whereas the

instant case is an action against federal officials based directly

on the Constitution in the manner of Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

(1971). In Butz v. Economou, U.S. ——, 98 S.Ct. 2894,

57 L.Ed.2d 895 (1978), the Supreme Court approved the use

of the test as developed in Scheuer v. Rhodes, 416 U.S. 232,

94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), in cases involving the

question of qualified official immunity of federal executive

officials in Bivens-type cases. The Wood test for the applica-

bility of the qualified immunity specified in Scheuer is utilized

here because it is the test used by the Court in analyzing the

immunity of state prison officia!s in Navarette.

—rerrereeeee

50a {

As the Court states in Navarette, the test is essen-

tially two-pronged:

Under the first part of the Wood v. Strick-

land rule, the immunity defense would be un-

availing to petitioners if the constitutional right

allegedly infringed by them was clearly estab-

lished at the time of their challenged conduct, if

they knew or should have known of that right

and if they knew or should have known that

their conduct violated the constitutional norm.

7 . * *

[T]he second branch of the Wood v. Strickland

standard .. . would authorize liability where the

official has acted with “malicious intention” to

deprive the plaintiff of a constitutional right or

to cause him “other injury.” This part of the

rule speaks of “intentional injury,” contemplat-

ing that the actor intends the consequences of

his conduct.

Id. at 562, 566, 98 S.Ct. at 861-62. Since Chapman

does not contend that defendants acted with mali-

cious intentions, and since the record is devoid of evi-

dence that defendants did so act, we are here con-

cerned solely with the first prong of the Wood test.

One of the requirements of this test is that the

constitutional right allegedly infringed by the de-

fendants must have been clearly established at the

time of the challenged conduct. The general First

Amendment right of a prisoner to be free from pun-

ishment or discrimination on account of his religious

faith may be said to be clear. Cooper v. Pate, 382

F.2d 518, 521 (7th Cir. 1967). Under Procunier v.

Navarette, supra, however, it appears that the right

5la

in question must have been established in a more

particularized way to meet the Wood test.

In Navarette a state prisoner sought relief for an

alleged violation of 42 U.S.C. $1983 when prison

officials interfered with his outgoing mail. The Su-

preme Court held that, at the time of the alleged in-

terference no specific right protecting the mailing

privileges of prisoners had been established. The

Court so held even though a series of cases in the

local United States district court had confirmed such

rights as that of inmates to receive newspapers and

magazines and that of parolees to make speeches to

public gatherings without obtaining advance permis-

sion. 434 U.S. at 564 n. 11, 98 S.Ct. 855. Indeed.

one case had recognized that pretrial detainees have

a First Amendment right in their correspondence.

Id. None of these cases, however, had dealt specifi-

cally with the rights of convicted prisoners in their

mail, and thus the Court found that the particular

constitutional right at issue had not yet been de-

clared.

Following the rationale of Navarette, it would ap-

pear that the specific right at issue here—that of a

prisoner to refuse an order requiring him to handle

foodstuffs forbidden by his religion—was not “clearly

established” in October 1972. While Cooper noted

the existence of a prisoner’s right to be free from

punishment on account of his religious beliefs. it also

noted that a prisoner is subject to various curtail-

ments of his freedom to exercise his beliefs. 482 F.2d

at 521. Indeed, courts in other circuits had at the

time declared that the practice of one’s religious

faith does not permit violation of prison discipline.

Evans v. Ciccone, 377 F.2d 4 (8th Cir. 1967) ; Sostre

52a

v. McGinnis, 334 F.2d 906, 908 (2d Cir.), cert. de-

nied, 879 U.S. 892, 85 S.Ct. 168, 138 L.Ed.2d 96

(1964). In Evans a federal prisoner of the Islamic

faith had been disturbing others by religious discus-

sion and was punished for direct disobedience of an

order to return to bed. The court held that he had

not suffered discrimination on account of his reli-

gion, noting that “[f]reedom of religion can never

mean .. . freedom to flagrantly disregard reasonable

rules of conduct in or out of prison.” 377 F.2d at 6.

We need not here comment on the correctness of

these decisions or whether they would necessarily be

followed today. It is sufficient that we note their

existence at the time of the incident at issue, for,

coupled with the absence of decisions which could be

said to declare such a right, they support the propo-

sition that no such right was “clearly established”

at the time. “Because they could not reasonably have

been expected to be aware of a constitutional right

that had not yet been declared, [defendants] did not

act with such disregard for the established law that

their conduct ‘cannot reasonably be characterized as

in good faith.’” Procunier v. Navarette, 434 U.S.

at 565, 98 S.Ct. at 861 (citation omitted). Thus, the

Wood test is not met and official immunity is avail-

able to the defendants as a defense to Chapman’s

First Amendment claim for monetary damages.

Ill

That defendants are immune from monetary dam-

ages based on the First Amendment claim does not,

of course, render moot Chapman’s claims for injunc-

tive and declaratory relief. Nor does the fact that

Chapman is currently on parole moot these claims, as

53a

the district court apparently reasoned. In Chapman

v. Kleindienst, we noted that “[a]s long as Chapman

remains at Marion, and as long as he may again be

required to handle pork, or may again go before the

Adjustment Committee, the possibility of the reoccur-

rence of these issues satisfies the ‘actual controversy’

requirement of the Declaratory Judgments Act, 28

U.S.C. § 2201, and the ‘case or controversy’ require-

ment of Article III.” 507 F.2d at 1249-50 (footnote

omitted). While it is true that Chapman is no longer

physically at Marion, he will apparently remain on

parole until 1988 and could be returned to prison

should he violate the terms of his conditional release.

Because there may yet be a continuing effect from

the use of records maintained concerning the punish-

ment he received,” we may not dismiss the matter as

moot. Morales v. Schmidt, 489 F.2d 1335 (7th Cir.

1973); Black v. Warden, 467 F.2d 202 (10th Cir.

1972).

The instant case is distinguishable from Preiser v.

Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d

272 (1975). In Preiser the Court ruled that a pris-

oner’s request for declaratory and injunctive relief

following an unconstitutional transfer had been

mooted by the fact that the prisoner had been trans-

ferred back to his original prison. The Court stated

that the mere possibility the prison authorities might

use the record notations of the transfer against the

prisoner in the future was too speculative to merit

review of the prisoner’s requests that the transfer be

declared unconstitutional and that an injunction

* F.g., if Chapman should be returned to prison, computa-

tion of good time allowance may be affected by past punish-

ment. See 18 U.S.C. § 4161; Black v. Warden, 467 F.2d 202

(10th Cir. 1972).

54a

issue ordering that all records of it be expunged and

that no future transfer be made without a hearing.

The Court relied on the fact that a notation had been

made in his file by the prison authorities expressly

stating that the transfer should have no bearing in

any future determinations. It was thus able to say

that it had before it more than a mere voluntary ces-

sation of allegedly illegal conduct which left the de-

fendant free to return to his old ways. Jd. at 402,

95 S.Ct. 2330.

Unlike the Court in Preiser, we have before us no

indication of any kind that the record of Chapman’s

punishment will not be used against him in the fu-

ture. Thus, the issue of an injunction against such

future use is not moot. On remand, which we order

infra, the district court should address itself to the

question of expurgation of the record of his punish-

ment, which will entail an inquiry into whether

Chapman was wrongfully placed in segregation in

violation of his First Amendment rights. See Chap-

man v. Kleindienst, 507 F.2d at 1248 n. 2. See also

Ware v. Heyne, 575 F.2d 593 (7th Cir. 1978).

With regard to Chapman’s request for declaratory

and injunctive relief against future infringements of

his religious freedom, following the rationale of

Preiser, that request has been mooted by the adoption

of a new Bureau of Prisons policy prohibiting the

assignment of prisoners to details where they must

work with pork if it is against their religious beliefs.

See Plaintiff’s Exhibit No. 4. Therefore, no further

action on these claims need be taken on remand.

IV

Chapman also appeals the district court’s denial

of his claim for relief based on the fact that he was

ee ch i lll

55a

not provided food substitutes for the pork items from

which he abstained during confinement in segrega-

tion. The district court based its denial of relief on

the doctrine of Rizzo v. Goode, 423 U.S. 362 96 S.Ct.

598, 46 L.Ed.2d 561 (1976). The Court in that case

stated that 42 U.S.C. § 1983 “impose[s] liability—

whether in the form of payment of redressive dam-

ages or being placed under an injunction—only for

conduct which ‘subjects, or causes to be subjected’

the complainant to a deprivation of a right secured

by the Constitution and the laws.” Jd. at 370-71, 96

S.Ct. at 604. It therefore refused to hold liable su-

pervisory personnel who played no affirmative part

in the deprivation of a right. The district court in

the instant case found that the evidence showed that

at best only one defendant, Pickett, had any respon-

sibility for the diet of prisoners in segregation, and

that Pickett’s responsibility was merely supervisory.

Since nothing has been shown to contradict these

findings, we affirm the district court’s application of

the Rizzo doctrine.®

V

Finally, Chapman appeals the district court’s rul-

ings that his confinement in segregation did not con-

stitute cruel and unusual punishment violative of the

3 The district court also found that a 1970 Federal Bureau

of Prisons policy statement provided that a committed offender

may abstain from eating those food items which are prohibited

by his religion and that he may receive added portions from

the main line of non-rationed items to make up any nutritional

deficiency. Absent any affirmative act on the part of de-

fendants to circumvent this policy, however, its mere existence

does not take the case out of the Rizzo doctrine. See Rizzo v.

Goode, 423 U.S. at 275-76, 96 S.Ct. 598.

56a

Eighth Amendment until May 5, 1973, and that even

after that date Chapman failed to demonstrate that

he was entitled to damages for his unconstitutional

punishment. While we agree that an Eighth Amend-

ment violation has occurred, we reverse as to the

date of its occurrence and Chapman’s entitlement to

damages.

In Adams v. Carlson, 488 F.2d 619 (7th Cir.

1973), we recognized that “punishment which is

disproportionate to the offense committed constitutes

cruel and unusual punishment, whether imposed

without or within prison walls.” Jd. at 635-36. We

further recognized that disproportionality is a ques-

tion both of degree and of fact, and we gave some

examples to illustrate our thinking and to serve as

benchmarks in future cases. We contrasted the case

of an inmate who refuses an order to shave his beard

with that of the mastermind of a large-scale escape

attempt, noting that the former “does not ordinarily

deserve solitary confinement.” Jd. at 636. Chapman’s

alleged “‘offense,” if such it was, is clearly closer to

the former than the latter example. It is questionable

whether indeterminate segregation was at all appro-

priate for the type of offense charged. At the very

least, the period of nearly seven months from Octo-

ber 11, 1972 to May 5, 1973 was manifestly dispro-

portionate to the offense of failing to perform work

as instructed, especially when viewed in light of the

facts that the refusal was based on religious grounds,

the pork was somehow removed by another through

Chapman’s efforts, he finished the task of cleaning

the cart himself, and due to his attitude he was al-

lowed to return to his work for the remainder of the

day. It is also to be noted that at least as of March 9,

res AL ean |

57a

1973, the Bureau of Prisons had adopted a policy

which prohibited assignment to kitchen clean-up de-

tail of those prisoners who refused to handle pork on

religious grounds; yet Chapman was not released

from punishment for this “offense” until over four

months later. The district court should consider these

facts on remand in determining the extent of the

Eighth Amendment violation.*

The district court also erred in its denial of Chap-

man’s claim for monetary damages based on the

Eighth Amendment violation. The court found that

plaintiff failed to show that actual damages were suf-

fered, although it noted the conditions under which

Chapman lived while confined in segregation, includ-

ing lack of exercise, lack of society with other in-

mates or family and friends, and lack of work or

* Defendants assert that Chapman’s remarks concerning the

supervisor at Leavenworth properly may have been considered

in determining the length of Chapman’s confinement, even

though defendants admit the Leavenworth investigation of the

oven incident did not raise Chapman as a suspect. If the

prison authorities had wished to charge Chapman with threat-

ening another with bodily harm, they could have done so; it

was, in fact, a separately listed ‘“‘Prohibited Act” under Prison

Code § 004. No such charge was ever made, nor was any hear-

ing regarding it ever held. Defendant Pickett did not even

reply to Chapman’s request for a formal explanation of his

confinement. The mere fact that the remark was listed in the

violation report and the investigator’s report is not sufficient.

Hayes v. Walker, 555 F.2d 625, 633 (7th Cir. 1975), cert.

denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977).

Not having been communicated to Chapman as a ground for

the decision, it may not properly be relied on as justifying the

punishment of indeterminate segregation. See United States

ex rel. Richerson v. Wolff, 525 F.2d 797 (7th Cir. 1975), cert.

denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764 (1976).

ae

58a

vocational training. We recently held in Buwise v.

Hudkins, 584 F.2d 228 (7th Cir. 1978), that such a

list of conditions is sufficient to support a claim for

damages, and we find that case to be controlling here.

As we stated in Buise, “[a]dmittedly, it is difficult to

move from these [conditions] to a compensatory dol-

lar amount, but such difficulty cannot preclude an

award of more than nominal damages. ... Other

courts have translated a series of conditions into a

realistic dollar figure, and the district court should

do so on remand.” /d. at 233.

VI

One additional matter requires our attention. Al-

though we have held that defendants enjoy a quali-

fied official immunity from monetary damages re-

garding Chapman’s First Amendment claim, this does

not extend to the Eighth Amendment violation. In-

deed, it is arguable that the very nature of an Eighth

Amendment violation would preclude the availability

of a qualified official immunity defense. We need not

reach that question, however, for, regardless of its

theoretical availability, the defense may not be used

here because defendants have failed to qualify under

the Wood standards.

There can be no serious contention with the fact

that the right to be free from disproportionate pun-

ishment has long been “‘clearly esta!:ished.” At least

as early as 1910, the Supreme Court declared it to

be “fa precept of justice” that punishment for crime

must be proportioned to the offense, lest it be found

to be cruel and unusual. Weems v. United States,

217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 798 (1910).

This being so, the question becomes one of whether

defendants “knew or should have known” that their

awe

59a

confinement of Chapman to segregation was or be-

came grossly disproportionate to the offense with

which he had been charged. But this question almost

answers itself, for if a point in time can be deter-

mined when the punishment became so seriously dis-

proportionate as to violate the Eighth Amendment,

at that same point defendants “should have known”

that the punishment was grossly excessive.° Thus,

under the Wood standards, the defense of qualified

official immunity is not available for damages arising

out of Chapman’s Eighth Amendment claim.

The judgment of the district court is affirmed in

part and reversed in part; the cause is remanded for

further proceedings consistent with this opinion.

5 The determination of that point in time is left to the dis-

trict court on remand.

60a

APPENDIX G

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

No. 74-1218

EDWARD JOSEPH X. CHAPMAN,

PLAINTIFF-APPELLANT

Vv.

RICHARD KLEINDIENST ET AL.,

DEFENDANTS-APPELLEES

Argued Nov. 20, 1974

Decided Dec. 16, 1974

PER CURIAM.

Edward Joseph X. Chapman, a prisoner at Marion

Federal Penitentiary, brought this pro se civil rights

action against various federal prison officials’ as a

result of his extended confinement in punitive segre-

gation at the institution. Chapman alleged that his

placement in segregation for his refusal to handle

1 Attorney General Richard G. Kleindienst; Norman A.

Carlson, Director of the Federal Bureau of Prisons; George

W. Pickett, Charles Fenton, and Captain Earl Buzzard, Marion

officials; and Frederick Siber, Director of Chaplaincy Services,

Federal Bureau of Prisons.

6la

pork, motivated by his observance of what he con-

tends is a basic tenet of his Black Muslim religion,

during kitchen clean-up duties violated his First

Amendment free exercise rights. He further claimed

that he was denied procedural due process at the

hearing that preceded his segregation and that the

resulting segregation for nine months constituted

cruel and unusual punishment. Chapman sought, in

substance, a mandatory injunction ordering his re-

turn to the general prison population, an injunction

restraining defendants from interfering with his

religious freedom, actual and punitive damages, a

declaratory judgment, and a writ of mandamus.’

Chapman’s request for the appointment of counsel

was cenied by District Judge Foreman at the com-

mencement of the one-day hearing held on October 9,

1973. Chapman called two witnesses, James Tippy,

a Marion caseworker, and James Culley, who had

served on the Adjustment Committee that ordered

Chapman placed in segregation. At the close of Cul-

ley’s testimony, Judge Foreman recessed the case and

indicated that he would hear no more testimony.

When Chapman protested that he wished to call an-

other witness, Keith X. Ferres, to testify as to the

tenents of the Muslim faith, Judge Foreman indi-

2 In addition, if it is found that Chapman was wrongfully

placed in segregation, expurgation of the record of this punish-

ment would seem appropriate to protect Chapman from future

prejudice in obtaining parole, work assignments, and the

transfer to a prison nearer his home. Chapman included in

his complaint a general prayer for all appropriate relief. It ic

axiomatic that pro se prison complaints will be held to a less

stringent standard than pleadings drafted by lawyers. See

Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30

L.Ed.2d 652; Bryant v. Harris, 465 F.2d 365, 366 (7th Cir.

1972).

settee nireiatianiiat ia mee

62a

cated that Chapman could submit an affidavit instead,

but that he, Judge Foreman, would determine whether

additional testimony would be necessary.

On December 17, 1973, the district court entered

judgment for the defendants, holding Chapman’s

claim for a mandatory injunction moot because he

had been released from segregation on July 23, 1973.

The court further concluded that Chapman had failed

to prove any of the allegations of his complaint.

On this appeal, Chapman, who is now represented

by counsel, argues that the district court erred in

the following respects: 1) even though Chapman

had been released from segregation, his claim for

injunctive relief was not thereby mooted; 2) the

district judge abused his discretion in not appointing

trial counsel for Chapman; 3) the district court im-

properly terminated the case prior to the close of

Chapman’s presentation; 4) Chapman had in fact

made out a prima facie case on each of the three

alleged constitutional vivlations; and 5) several evi-

dentiary rulings were erroneous. For the following

reasons, we reverse and remand for a new trial.

I.

Insofar as the ruling that Chapman’s release from

segregation rendered his claim for a mandatory in-

junction ordering release moot is concerned, the trial

judge was clearly correct. We do not read his order

as holding that Chapman’s release mooted his claims

for monetary, declaratory, or prohibitory injunctive

relief. The pwlease could not have had those effects;

the recovery of damages for the alleged violations of

® The defendants suggest opaquely that Judge Foreman’s

mootness determination applied to the entire request for in-

junctive relief. Appellees’ Brief at 5.

63a

his constitutional rights does not turn on his con-

tinued presence in segregation.* Nor would his re-

lease render moot his request for a declaratory judg-

ment that the acts of these prison officials were un-

constitutional, for an injunction prohibiting further

such actions, and for further appropriate relief, in-

cluding the expurgation of his prison record. As long

as Chapman remains at Marion, and as long as he

may again be required to handle pork, or may again

go before the Adjustment Committee, the possibility

of the reoccurrence of these issues satisfies the “ac-

tual controversy” requirement of the Declaratory

Judgments Act, 28 U.S.C. § 2201, and the “case or

controversy” requirement of Article III.°

* Defendants have argued here that Chapman may not

maintain his damage action because of the doctrine of “official

immunity.” Judge Foreman did not rule on this defense

below; it is unclear that it was presented to him, although

the defendants did cryptically state in their answer that ‘‘In-

mates of federal penitentiaries are not entitled to monetary

damages for violation of their First Amendment rights, if

such a violation occurred.” In any event, the defense of official

immunity, because it is not an absolute bar to damage recov-

eries, requires a full hearing and concomitant findings of fact

by the trial judge. On remand, which we order infra, the

defendants may argue that the circumstances in which dam-

ages may be recovered against federal officials for official acts

first enunciated in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335,

3 L.Ed.2d 1484, and further developed in our decisions in

Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967), cert. denied,

389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666; Skolnick v. Camp-

bell, 398 F.2d 23 (7th Cir. 1968); and Scherer v. Morrow,

401 F.2d 204 (7th Cir. 1968), cert. denied, 393 U.S. 1084, 89

S.Ct. 868, 21 L.Ed.2d 777, have not been demonstrated by

Chapman.

5 The federal courts have concluded that prisoner complaints

were not moot under similar circumstances in West v. Cun-

a

64a

In addition, Chapman’s complaint was drafted as

a class action, brought on behalf of all Black Mus-

lims at Marion, some of whom, he alleges, are in

segregation as a result of the same First Amendment

violations of which Chapman complains. Judge Fore-

man failed to conduct the investigation and make the

findings of the appropriateness of the class action

required by Fed.R.Civ.P. 23(c). If Chapman’s con-

tentions of a uniform institutional policy applying to

all Black Muslims are correct, this is another com-

pelling reason for finding that the case is not moot

and deciding these questions at this time. See Work-

man v. Mitchell, 502 F.2d 1201, 1207-1208 (9th Cir.

1974).

II.

Chapman next argues that the trial judge abused

his discretion in not granting Chapman’s motion for

appointment of counsel, once it became clear that he

had a reasonable chance of succeeding in this action.

Without determining whether Judge Foreman abused

his discretion in this case, we have concluded that on

remand it would be appropriate for Chapman to have

the assistance of counsel. A staff attorney of the

Northwestern Legal Assistance Clinic, which repre-

sented Chapman before us, has indicated both the

willingness and the financial capacity to continue this

representation. Since she has already demonstrated

her competence and familiarity with the record, we

ningham, 456 F.2d 1264, 1265-1266 (4th Cir. 1972); Barnett

v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995, 997 n. 1

(969) ; Jackson v. Bishop, 404 F.2d 571, 575-576 n. 5 (8th

Cir. 1968) (Blackmun, J.) ; and Pierce v. LaVallee, 293 F.2d

233, 234 (2d Cir. 1961).

<

65a

direct the trial judge to make the necessary request

pursuant to 28 U.S.C. § 1915(d).°

III.

After Chapman had completed his examination of

his first two witnesses, the trial judge stated:

“The Court will continue this matter generally

at this time. I’ll take the matter under advise-

ment with regard to the evidence that is pre-

sented and with regard to the other matters that

are to be submitted to me and I’ll make a ruling

as to whether or not, in my opinion, additional

evidence is needed. I do not have any more time

available for this matter at this time.” Tr. 71.

* We have previously held that the decision whether to re-

quest counsel to represent an indigent in a civil case, as

authorized by 28 U.S.C. § 1915(d), “rests in the sound discre-

tion of district courts unless denial would result in funda-

mental unfairness impinging on due process rights.” LaClair v.

United States, 374 F.2d 486, 489 (7th Cir. 1967). See also

Ehrlich v. Van Epps, 428 F.2d 363, 364 (7th Cir. 1970).

Chapman would have us adopt the standard set forth in

Dreyer v. Jalet, 349 F.Supp. 452, 486 (S.D.Tex. 1972), aff'd

mem., 479 F.2d 1044 (5th Cir. 1973) :

“(I}f a civil action brought by an indigent acting pro se,

including prison inmates, has merit requiring an eviden-

tiary hearing, then counsel should be appointed to prop-

erly present the claim.”

See Peterson v. Nadler, 452 F.2d 754, 757-758 (8th Cir. 1971);

Chubbs v. City of New York, 324 F.Supp. 1183, 1191 (E.D.

N.Y. 1971); cf. United States v. Simpson, 141 U.S.App.D.C.

8, 436 F.2d 162, 167-170 (1970). These cases discuss the

highly complex institutional and financial considerations posed

in a request for counsel for the indigent civil litigant. We

need not, however, decide this important question in this case.

66a

Chapman was permitted to submit the affidavit of

Keith X. Ferres, his expert on the Black Muslim

religion, but was never subsequently allowed to call

any more witnesses.

Termination of the proceedings in this manner

was improper since Chapman had not finished pre-

senting his case. Judge Foreman’s ultimate ruling

‘that Chapman had not proved the allegations of his

complaint was not consistent with the implicit under-

standing that, should he decide additional evidence

was necessary, he would permit Chapman to continue

with the presentation of his case.

The defendants make much of the fact that Chap-

man stated that he had only one more witness, Keith

X. Ferres, that Ferres was to testify only as to the

tenets of the Muslim faith, and that there was no

dispute over this issue. Judge Foreman decided to

terminate the proceedings, however, before Chapman

made this statement. See Tr. at 71. In truth, Chap-

man may have desired to call several additional wit-

nesses, including himself, to the stand, but concluded

that, in light of the judge’s statement, he could hope

that Judge Foreman would hear at least one more

witness.

In addition, Chapman indicated that he might wish

to call other witnesses for “rebuttal” testimony. Tr.

at 74. While an attorney would refer to testimony

as “rebuttal” only if it were to be presented after

the defendants’ case, Chapman may have meant sim-

ply additional witnesses. Judge Foreman so inter-

preted this reference; he stated:

“If you desire to submit to the Court an affi-

davit of the other witnesses or witness—Mr.

Ferres, that was here today, you may do so.”

Tr. at 74.

67a

Thus, we cannot be certain that, but for Judge

Foreman’s premature termination of Chapman’s pre-

sentation, the plaintiff would not have introduced the

evidence that Judge Foreman concluded was lacking

to prove the allegations of the complaint.’

While we sympathize with the trial judge’s desire

to have this case tried speedily, since we also are con-

scious of the number of prisoner cases on his docket,

nevertheless the procedure used in this « . is un-

acceptable. The fact that the trial judge had not

scheduled additional time for this matter is plainly

not a sufficient justification for aborting the trial

before the plaintiff had completed his case.

IV.

Chapman contends that even on this truncated rec-

ord Judge Foreman erred in concluding that he had

not proved the allegations of his complaint.

With respect to Chapman’s claim that he was pun-

ished for his observance of a basic tenet of his Black

Muslim faith, we agree that he presented substantial

evidence of interference with First Amendment

rights and that judgment should not have been en-

tered prior to hearing the defendant’s evidence.

The defendants, in their brief, acknowledge that

Chapman introduced proof that “(1) his religion for-

bids touching pork; (2) he was called upon to han-

dle pork; (8) he was placed in segregation for refus-

7 Our ruling herein does not in any way interfere with the

sound discretion of a trial judge to limit the number of

witnesses that may appear to present essentially cumulative

evidence. See Loux v. United States, 389 F.2d 911, 917 (9th

Cir. 1968), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d

185. Such was clearly not the basis of Judge Foreman’s

actions.

68a

ing to obey an order by a supervisor, and that order

was to handle pork. ...” Appellees’ Brief at 19.°

Having established this interference with his First

Amendment right, and having tendered additional

evidence by an expert in the Muslim religion, Chap-

man was entitled to have the defendants come forth

with their explanation of the reasons for the require-

ment that he handle pork. It was error for Judge

Foreman to enter judgment for defendants on this

issue. See Walker v. Blackwell, 411 F.2d 23, 25 (5th

Cir. 1969); Barnett v. Rodgers, 133 U.S.App.D.C.

296, 410 F.2d 995, 1000 (1969) ; Cooper v. Pate, 382

F.2d 518, 521 (7th Cir. 19F7).

We do not agree with Chapman, however, that

Judge Foreman erred in granting judgment for the

defendants on his procedural due process claim.

Chapman contends that he was not afforded the pro-

cedural protections we described in United States ex

rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973),

cert. denied, Gutierrez v. Department of Public

Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102.

Although his segregation hearing was held on Octo-

8 There is some evidence in the record that Chapman’s segre-

gation may have resulted in part from a threat made to the

prison officer who ordered him to handle pork. Chapman

admits saying that ‘‘ ‘Allah (God) might come to his defense

and blow (Mr. Brown) him through an oven’ as he allegedly

did a previous prison oppressor of plaintiff.’”” Complaint

Paragraph 16(d). The Incident Report filed by Brown,

however, stated the charge as “Failing to perform work as

instructed by a supervisor,” a violation of Code No. 303.

Judge Foreman, in entering judgment for defendants, made

no finding that the threat was the real reason for the segrega-

tion, instead of the refusal to handle pork. In its present

incomplete posture, the record strongly indicates that Chap-

man was punished at least in part for his refusal to clean off

the food carts.

69a

ber 11, 1972, prior to our decision in Miller, he ar-

gues that we should apply that decision retroactively.

In both Adams v. Carlson, 488 F.2d 619, 624-629

(7th Cir. 1973), and Thomas v. Pate, 493 F.2d 151,

161 n. 6 (7th Cir. 1974), we did so apply the Miller

standards. The Supreme Court, however, granted

certiorari in Thomas, vacated the judgment, and re-

manded the case for a reconsideration of the retro-

activity issue in light of its decision in Wolff v. Mc-

Donnell, 418 U.S. 539, 94 S.Ct. 2968, 41 L.Ed.2d 935

(1974); see Cannon v. Thomas, U.S. ——, 95

S.Ct. 288, 42 L.Ed.2d 39 (1974). In Wolff, the Su-

preme Court stated that due process requirements in

prison disciplinary proceedings are not to be applied

retroactively. 94 S.Ct. at 2983. Thus, we may not

apply the Miller standards in Chapman’s case.

Instead, the procedures used in Chapman’s segre-

gation hearing must be judged against the due process

standards in force at that time, the standards set

forth in Adams v. Pate, 445 F.2d 105 (7th Cir. 1971).

In Adams we stated that procedural due process was

complied with when “the prisoner is confronted with

the accusation against him and afforded a reasonable

opportunity to deny the accusation or explain his ac-

tions.” 445 F.2d at 108. Chapman’s segregation was

ordered only after compliance with these procedures.

Thus, Chapman’s claim for damages and for the ex-

purgation of his records on this basis was properly

denied. As there is no evidence that Marion officials

are not complying with Miller at this time, the entry

of a prohibitory injunction would have been improper.

Chapman finally contends the Judge Foreman erred

in entering judgment for the defendants on Chap-

man’s claim that his nine-month segregation was in

violation of the Eighth Amendment prohibition of

70a

cruel and unusual punishment. The essence of his

claim is that a nine-month segregation period was

disproportionate to the offense he allegedly commit-

ted, even assuming that prison officials could prop-

erly punish his refusal to handle pork.

In Adams v. Carlson, 488 F.2d 619 (7th Cir.

1973), we recognized that “punishment which is dis-

proportionate to the offense committed constitutes

cruel and unusual punishment ....” 488 F.2d at

635-636. See also Haines v. Kerner, 492 F.2d 937,

942 (7th Cir. 1974). But, we noted that such a

determination in the individual case must turn of

necessity on an assessment of all the facts and cir-

cumstances surrounding the segregation decision, in-

cluding such matters as the disciplinary offense in-

volved, the prisoner’s disciplinary record, and the

offense for which the prisoner was originally sen-

tenced.

It is precisely these facts that are missing from

the record of this case. We do not know whether the

threat Chapman admits making influenced the segre-

gation length. We know nothing of any prior disci-

plinary problems or of any of the myriad factors that

may have been and could properly be considered in

setting the segregation term. The trial judge made

no findings of fact and, as noted in Part III, supra,

Chapman was prevented from completely presenting

his case. For these reasons, although we express no

opinion on the merits of the Eighth Amendment con-

tention, Chapman is not foreclosed- from pursuing

this claim on remand. Of course, if Chapman should

be successful in demonstrating that the sole reason

for his segregation was his refusal to obey an order

that violated his First Amendment rights, there

would be no oceasion to reach the Eighth Amendment

7la

claim. For in that event the punishment would be

entirely impermissible and no question of dispropor-

tionately would remain.

V.

In summary, we hold that Judge Foreman erred in

truncating Chapman’s presentation of his case, and

that the facts in the record made out a prima facie

case of a First Amendment violation. On remand,

Chapman may pursue both his religious freedom vio-

lation and his cruel and unusual punishment claims.°

We note that, although Chapman’s complaint con-

tained what must be construed as a demand for a

jury trial on the legal issues presented,’® Judge Fore-

man conducted the October 9, 1978, hearing without

a jury. While we agree that burying the jury de-

mand in the complaint is not the best practice,” the

court and its staff have a special responsibility to

scrutinize carefully pro se complaints for just such

infirmities. If Judge Foreman was aware of the jury

demand but decided to hear the case himself first be-

cause of the prayer for injunctive in addition to dam-

age relief, he clearly erred. The Supreme Court de-

cisions in Beacon Theatres, Inc> v. Westover, 359

U.S. 500, 510-511, 79 S.Ct. $48, 3 L.Ed.2d 988, and

Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-473,

82 S.Ct. 894, 8 L.Ed.2d 44, require the presentation

of the legal claims to the jury prior to any factual

® Because of our disposition of his other contentions, it is

unnecessary for us to consider Chapman’s allegations concern-

ing the trial judge’s evidentiary rulings.

10 See Complaint Paragraph 34(b) (7).

11 See 5 J. Moore, Federal Practice © 38.40, at 328.1-328.2

(2d ed. 1974).

72a

resolution by the trial judge on the equitable claims.

The fact that Chapman also sought a declaratory

judgment does not affect this requirement.”

It is more likely, however, that Judge Foreman

was simply unaware of the jury demand; Chapman

raised no objection when the hearing was held with-

out a jury. Normally, the failure to object under

such circumstances would constitute a waiver of the

right to a jury trial. See National Family Insurance

Company v. Exchange National Bank of Chicago, 474

F.2d 237, 241 (7th Cir. 1973), cert. denied, 414 U.S.

825, 94 S.Ct. 129, 38 L.Ed.2d 59; Smith v. Cushman

Motor Works, 178 F.2d 958, 954 (8th Cir. 1950).

Here, however, Chapman, who was not represented

by counsel, may not have been aware of his right to

object to a hearing to the court. Thus, on remand,

Chapman should be allowed a jury trial unless one

is formally waived pursuant to Fed.R.Civ.P. 39(a).

The judgment is accordingly vacated and the case

is remanded for further proceedings.

12 Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504-505,

79 S.Ct. 948, 3 L.Ed.2d 988.

so

73a

APPENDIX H

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS—

SPRINGFIELD DIVISION

No. 84-3001

EDWARD JOSEPH X. CHAPMAN, PLAINTIFF

Vv,

GEORGE W. PICKETT,

Warden, U.S. Penitentiary, Marion;

RICHARD J. KLEINDIENST,

Attorney General of the United States;

NORMAN A. CARLSON,

Director, Bureau of Prisons;

Lt. J. CULLEY,

Control Program Manager, Marion Penitentiary;

FREDERICK SIBER,

Director of Chaplain Services,

Bureau of Prisons, DEFENDANTS

[Filed Sep. 26, 1984]

ORDER

After a long and tortured history, this Court be-

lieves that finally it can be concluded. Originally filed

in April, 1973, the Plaintiff, Edward Joseph X. Chap-

74a

man, alleged that federal prison officials violated his

first, eighth, and fourteenth amendment rights for

placing him in prison segregation for refusing to

work due to religious reasons. Already this case has

spawned a total of eight separate trial and appellate

court decisions. Chapman v. Kleindienst, No. 73-92-e

slip op. (E.D. Ill. Dee. 17, 1973) (Foreman, J.),

vacated by Chapman v. Kleindienst, 507 F.2d 1246

(7th Cir. 1974); on remand, Chapman v. Pickett,

No. 75-2-041 slip op. (E.D. Ill. April 4, 1977) (Wise,

C. J.), aff'd. in part and rev’d in part by Chapman

v. Pickett, 586 F.2d 22 (7th Cir. 1978); on remand,

Chapman vy. Pickett, 491 F. Supp. 967 (C.D. Ill.

1980) (Baker, J.); rev’d. by Chapman v. Pickett,

No. 80-1640, slip op. (7th Cir. Dec. 12, 1980) ; Chap-

man v. Pickett, No. 75-C-2041, slip op. (C.D. Ill.

Apr. 20, 1981) (Morgan, J.); rev’d. by Chapman v.

Pickett, No. 81-1809, slip op. (7th Cir. Jan. 4, 1982).

In an effort to end this case, this Court denied the

Plaintiff’s motion for a summary judgment and heard

all testimony on the sole remaining question in this

case—the date when the Defendants began violating

the Plaintiff’s eighth amendment rights and the

amount of damages the Plaintiff suffered for that

violation. In addition to hearing live testimony on

the question of damages, this Court has also reviewed

the transcripts and documentary evidence produced

by the other hearings in this case. Upon this factual

record, and the arguments of fact and law made by

counsel for the respective parties, this Court makes

the following findings of fact' and conclusions of

law on damages.

' This Court will not delve into all the facts which gave rise

to the Defendants’ liability, focusing only on the facts relevant

75a

In 1972, the Plaintiff, Edward Joseph X. Chapman,

was incarcerated at Marion Federal Penitentiary.

On October 9, 1972, while on a kitchen work detail,

he refused to clean some food trays which contained

pork. Mr. Chapman refused because the tenets of

his Islamic faith forbid him to handle pork in any

fashion. Mr. Chapman informed his supervisor, De-

fendant J. E. Brown, of his inability to perform the

work assigned because of his religious beliefs. De-

spite the fact that the refusal to perform the assigned

work was based on a sincerely held religious belief,

Mr. Brown filed an incident report charging Chap-

man with a violation of prison coded 303, failing to

perform work as instructed by a supervisor. The dis-

ciplinary ticket stated that Mr. Chapman’s religious

beliefs formed the basis for his refusal to work. AI-

though Mr. Chapman refused to do the work as-

signed, he did obtain the assistance of another in-

mate who performed the necessary cleaning. Mr.

Chapman continued to work in the kitchen detail

without incident for the next two days.

On October 11, 1972, Defendants Jack Culley,

E. M. Cage, and Earl Buzzard, members of the Ad-

justment Committee for Marion at that time, met to

act on Defendant Brown’s disciplinary report. Mr.

Chapman stated at the hearing that he had refused

the order because it was prohibited by the tenets of

his religion. Apparently unmoved by Mr. Chapman’s

religious grounds for his refusal to work, the ad-

justment committee sentenced Mr. Chapman to con-

finement in the prison’s segregation block for an in-

to the narrew questions before it. For a more exhaustive and

detailed account of the incidents which gave rise to the law-

suit, see Chapman IT, 586 F.2d at 24-25 (7th Cir. 1978).

76a

determinate term. Mr. Chapman remained in segre-

gation until his release on July 25, 1973, a period

of 289 days.

The United States Court of Appeals for the Sev-

enth Circuit determined in Chapman II that confine-

ment and segregation for over seven months con-

stituted disproportionate punishment to the Plain-

tiff’s refusal to work, in violation of the Plaintiff’s

eighth amendment rights. 586 F.2d at 28. As stated

previously, this Court must now determine when Mr.

Chapman’s confinement in segregation became dis-

proportionate and the damages resulting from Mr.

Chapman’s confinement in segregation from the date

his punishment became disproportionate. Despite this

apparently clear mandate from the Seventh Circuit,

the Defendants have argued that Mr. Chapman

should not receive any damages for his extended con-

finement in segregation. The Defendants contend

that the adjustment committee placed Mr. Chapman

in segregation because of an alleged threat he made

on Officer Brown’s life when the latter wrote a dis-

ciplinary report for the Plaintiff’s refusal to work.

Defendants argue that confinement in segregation

for 289 days does not constitute disproportionate

punishment for a threat on a guard’s life. There-

fore, according to the Defendants, the decision of the

United States Supreme Court in Carey v. Piphus,

435 U.S. 247 (1978), limits this Court to an award

of only nominal damages. The Plaintiff has re-

sponded by arguing that the law of this case as stated

by the Seventh Circuit in Chapman II, 586 F.2d at

28 n. 4, precludes consideration of the alleged threat

made against Officer Brown. The Plaintiff further

argues that the Carey decision does not support the

Defendants’ argument for an award of nominal dam-

77a

ages. See Section I, Plaintiff’s Reply Memorandum

in Support of a Request for Judgment for the Plain-

tiff (filed April 17, 1984). Plaintiff’s reply memo-

randum quite adequately disposes of the arguments

of the Defendants. For the record this Court adopts

the arguments contained within Section I of the

Plaintiff’s Reply Memorandum, as any further ex-

position on the subject by this Court would con-

stitute only a duplication of effort.

A determination of when Mr. Chapman’s punish-

ment became disproportionate essentially requires

this Court to sit as the adjustment committee hear-

ing the refusal to work charges. This Court will

therefore consider only those facts which were

properly before the adjustment committee when it

initially sentenced Mr. Chapman to an indeterminate

term in segregation. According to the incident re-

port, the adjustment committee was fully aware that

Mr. Chapman’s refusal to work was based on a sin-

cerely held religious belief. Def. Ex. 1, Record

(1976). Both Defendant Culley and Cage have testi-

fied that the sole reason Plaintiff was placed in

segregation was his refusal to work. Record (1976)

at 137 and 167-168. According to the investigation

of the incident, Mr. Chapman displayed a good at-

titude and stated that his refusal to work was solely

based on his religious beliefs against handling pork.

The incident report further states that Chapman,

through his own efforts, obtained the assistance of

another prisoner and completed his work assignment.

Finally, Mr. Chapman continued to work in the

kitchen, without incident, for two full days following

his initial refusal to handle pork. During these two

days he worked alongside Officer Brown, the individ-

78a

ual who Mr. Chapman allegedly threatened with

grievous bodily harm.

Both sides have tendered expert testimony on the

amount of punishment Mr. Chapman should have re-

ceived based on his refusal to work for religious rea-

sons. Professor Joseph Cannon, the Plaintiff’s ex-

pert witness, testified that placing Mr. Chapman in

segregation for any length of time on the facts out-

lined above constituted improper punishment. Record

(1984) at 24. The Defendants’ expert witness,

Charles E. Fenton, came to an almost identical con-

clusion. According to Mr. Fenton, an inmate charged

with refusal to work under the facts outlined above

would receive from three days to a week in segrega-

tion. Record (1984) at 171. This Court believes that

Mr. Fenton’s testimony is especially credible in light

of the fact that he was employed as an assistant war-

den at Marion when Mr. Chapman was incarcerated.

In light of the facts outlined above, and the expert

testimony tendered by both the Plaintiff and the De-

fendants, this Court holds that the Plaintiff’s intern-

ment in segregation became disproportionate after

seven days. This Court must show some deference to

the needs of the prison environment. See Bell v. Wol-

fish, 441 U.S. 520, 547 (1979). Allowing a prisoner’s

refusal to work to go unpunished could raise serious

disciplinary problems, as this Court was made aware

by Mr. Fenton’s testimony. After one week, how-

ever, even Mr. Fenton agreed that such punishment

becomes disproportionate to the charge against the

Plaintiff. Mr. Chapman refused to do the work as-

signed purely because of a religious reason. In this

case, the Honorable Harold A. Baker has already held

that such refusal was a proper exercise of Mr. Chap-

man’s first amendment rights. See 491 F. Supp. at

79a

970-972. Furthermore, the facts of this case show

that there was no disruption in the kitchen as a re-

sult of the Plaintiff’s refusal to work. On the day of

the refusal which resulted in the charge, the Plain-

tiff procurred another prisoner to do the work which

Mr. Chapman refused to perform. For two days

after the charge was made, the Plaintiff worked in

the kitchen without incident, and apparently effec-

tively fulfilled all his duties. In light of these facts,

this Court believes that seven days in segregation

was sufficient punishment for the Plaintiff’s refusal

to work based on religious reasons. This Court must

award damages for 282 of the 289 days Mr. Chap-

man spent in segregation.

In assessing damages, this Court must determine

the difference in living conditions which Mr. Chap-

man had while in segregation as opposed to those he

would have enjoyed had he been a member of the

general prison population. Chapman II, 584 F.2d at

28, citing Buise v. Hudkins, 584 F.2d 223, 233 (7th

Cir. 1978). Despite the Defendants’ contentions to

the contrary, the facts show that confinement in

segregation creates significant and much more re-

strictive conditions of confinement. The most obvi-

ous distinction is the complete denial of social con-

tact with other inmates. Mr. Chapman testified that

throughout his confinement in segregation he had no

direct contact with any of the other inmates. This

inability to socialize had an even more significant ef-

fect on Mr. Chapman. The Plaintiff’s confinement

in segregation denied him the opportunity to attend

any religious services. Furthermore, the evidence

shows that only once was Mr. Chapman visited by

a minister of his faith.

The Plaintiff suffered other deprivations relating

to his segregation. According to the uncontroverted

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testimony of Mr. Chapman, prison authorities con-

fiscated all his religious materials when he entered

segregation. While in segregation, the prisoner re-

mained within his own cell. An inmate in segrega-

tion could only exercise a few times a week and at

those times only for fifteen to thirty minute inter-

vals. The Plaintiff was unable to shower or shave as

frequently as the Plaintiff’s religious beliefs de-

manded. Apparently, in the general prison popula-

tion the Plaintiff was able to maintain such habits.

The Plaintiff was unable to receive adequate nutri-

tion because a significant portion of the meals he was

served contained pork. If the Plaintiff had remained

in general population, he could have substituted other

items for the pork items. Finally, the Plaintiff was

unable to receive any vocational training while in

segregation. Although the Plaintiff was able to re-

ceive his high school equivalency, the denial of voca-

tional training did constitute a difference between

segregation and the general prison population.” Fi-

nally, the Plaintiff testified that his placement in

segregation caused him emotional distress, and the

developed nervous condition.

This Court has reviewed all the precedents cited by

both Plaintiff and Defendants in support of their

respective positions on the amount of damages the

Plaintiff suffered. Although they offer some guidance

to this Court, the wide disparity in the amounts

granted by courts show that I have a fairly large

amount of discretion to determine the proper amount

2 The Plaintiff’s testimony and these findings are consistent

with Judge Foreman’s findings of fact on the conditions of

confinement in the Control Unit at Marion in Bono v. Saxbe,

450 F. Supp. 934 (E.D. Ill. 1978).

8la

of damages. In Saxner v. Benson, 727 F.2d 669 (7th

Cir. 1984), the United States Court of Appeals for

the Seventh Circuit upheld an award of $4,500 to two

plaintiffs for thirty-five days spent in segregation in

an Indiana correctional institution. As evidence in

support of the damage award, the court noted that

one of the prisoners was confined almost twenty-four

days to the segregation cell without access to the

prison yard or other exercise facilities, and that the

prisoners lost various other privileges. Furthermore,

the court approved the trial court’s consideration of

mental and emotional distress injuries attributable

to the due process violations which placed the prison-

ers in segregation.

The trial court found that “anguish and frustra-

tion which flowed from the patent unfairness of

the hearings and the fear that such unfair treat-

ment would continue in the future in their ad-

ministrative review and appeals, at their parole

hearings, and in their day to day existence in

the segregation units unrelated to the issue of

length (35 days) of time served in segregation”’

contributed to their actual injuries.

Id. at 672. In Mary and Crystal v. Ramsden, 635

F.2d 590 (7th Cir. 1980), the United States Court of

Appeals for the Seventh Circuit upheld jury awards

of $2,400 and $1,600 for twenty-nine and nineteen

days, respectively, spent by the juvenile plaintiffs in

isolation in a juvenile correctional center. The in-

juries suffered by the juvenile plaintiffs while in

isolation were comparable to those suffered by Mr.

Chapman at Marion. In United States ex rel. Lar-

kins v. Oswald, 510 F.2d 583 (2d Cir. 1975), the

United States Court of Appeals for the Second Cir-

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cuit approved an award of $1,000 for twelve days

spent in segregation under circumstances similar to

those of Mr. Chapman. Finally, in Riley v. Johnson,

528 F. Supp. 333 (E.D. Mich. 1981), a federal dis-

trict court awarded $25 per day solely for emotional

distress caused by the insult to the inmate’s dignity

occasioned by the inmate’s illegal confinement in seg-

regation. In light of the precedent above, I shall

therefore award the Plaintiff $7,000 for the time he

was unconstitutionally incarcerated in segregation at

Marion Penitentiary.

Next, this Court must determine which Defend-

ants will be liable for the damages. First, this Court

does not believe that Officer Brown is liable for any

damages. The damages imposed here are for the sen-

tence which the Plaintiff was required to serve dis-

proportionate to the offense to which it was charged.

The Plaintiff has made no showing that Officer Brown

had any involvement in the sentence imposed on the

Plaintiff. Officer Brown, by bringing the charge, was

merely an actor in a sequence of events which ulti-

mately caused the Plaintiff’s eighth amendment

rights to be violated.

This Court does find liable, however, Defendants

Cully, Buzzard and Cage. All three of these individ-

uals were on the original sentencing committee, and

according to the testimony presented in the 1976

hearing, all apparently sat on a committee which re-

viewed Mr. Chapman’s confinement to segregation.

It was these three individuals who apparently had

primary responsibility for determining who would

remain in segregation and the amount of time a

prisoner would remain.

This Court shall impose liability on Defendant

Fry. Mr. Fry approved the original indeterminate

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sentence. His approval of the indeterminate sentence

gave rise to the constitutional violation. In light of

the Defendants’ expert’s testimony that the Plaintiff’s

acts should have resulted in a maximum of three to

seven days in segregation, this Court believes that

Mr. Fry should be held liable for approving an in-

determinate sentence. .

George Pickett creates a peculiar problem. Nor-

mally, a plaintiff would be hardpressed in proving

a warden liable for an administrative committee plac-

ing an inmate into segregation. In the trial before

Judge Wise in 1976, however, the parties entered

into a stipulation on behalf of Mr. Pickett. In that

statement, Mr. Pickett stated that he had knowledge

of the Plaintiff’s placement in segregation on Octo-

ber 11, 1972, and that he had the authority to over-

ride the decisions of. the officers at his prison. Fur-

thermore, Mr. Pickett stated that he received a copy

of the March 15, 1973, letter from Norman A. Carl-

son, the Director of the Federal of Prisons, to Con-

gressman Charles Rangel. At the very least, this

letter, which implied that Mr. Chapman felt that he

was being punished for his religious beliefs, should

have put Mr. Pickett on notice to investigate the

situation. On these facts I shall therefore impose

liability on Mr. Pickett.

The Plaintiff also has requested an award of puni-

tive damages. This Court does not believe that the

facts of this case warrant such an award. This Court

believes that the Defendants sincerely thought that

the Plaintiff’s statement that Allah would punish

Officer Brown was a threat. Despite the fact that

they completely failed to investigate the alleged

“threats,” or ever allow Mr. Chapman a chance to be

heard on the supposed “threat,” I do believe that such

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a belief precludes the existence of a malicious intent

required for punitive damages.

This Court, therefore, awards the Plaintiff dam-

ages in the amount of $7,000 plus costs. The Clerk is

hereby ordered to enter judgment accordingly.

Enter this 25 day of September, 1984.

/s/ J. Waldo Ackerman

J. WALDO ACKERMAN

Chief U.S. District Judge

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APPENDIX I

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

No. 75-C-2041

EDWARD JOSEPH X. CHAPMAN, PLAINTIFF

v.

GEORGE PICKETT, ET AL., DEFENDANTS

[Filed Apr. 20, 1981]

MEMORANDUM AND ORDER ON DAMAGES

This case comes to this court on remand from the

United States Court of Appeals for the Seventh Cir-

cuit. It was originally filed in 1973 as a pro se com-

plaint seeking relief under 42 U.S.C. § 1983 for al-

leged violations of constitutional rights. Plaintiff was

an inmate at the federal penitentiary in Marion, Illi-

nois. He was placed in a segregation unit after he

refused a supervisvr’s instructions to handle pork in

the kitchen. Plaintiff is a practicing Muslim, and he

claimed that any hendling of pork would be contrary

to Muslim teachings. Plaintiff remained in the seg-

regation unit for approximately 10 months.

Prior to this consideration, this case has been heard

by three different district judges, each of whom held

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evidentiary hearings and rendered decisions based on

specific findings of facts and conclusions of law. The

Court of Appeals has reviewed each of those deci-

sions, which have been affirmed in part and reversed

and remanded in part. On the present remand, this

court has reviewed the entire record, including tran-

scripts, pleadings, briefs, and all of the court deci-

sions, and finds that another evidentiary hearing is

not appropriate. The prior findings that are relevant

at this time may be summarized as follows:

1. There were no procedural due process vio-

lations in the hearing afforded Chapman before

he was placed in segregation, Chapman v. Klein-

dienst, 507 F.2d 1246, 1252 (7th Cir. 1974)

(Chapman !).

2. All of the defendants are entitled to official

immunity against any money damages based on

plaintiff’s First Amendment claims, Chapman v.

Pickett, 586 F.2d 22, 26 (7th Cir. 1978) (Chap-

man IT).

3. Plaintiff is not entitled to relief on his

claim that officials refused to substitute other

foods for the pork in his diet, Chapman II, 586

F.2d at 27.

4. Plaintiff’s assignment to segregation did

not alter the physical conditions of his environ-

ment, Chapman v. Pickett, 491 F. Supp. 967, 970

(D.C., C.D Til. 1980) (Chapman III).

5. Plaintiff’s First Amendment right to free

exercise of religion was violated by his punish-

ment for refusal to handle pork, Chapman III,

491 F. Supp. at 972.

6. The report of the incident and the dis-

ciplinary action taken against plaintiff is now to

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have been expunged from his record, and any

future use of such record has been enjoined,

Chapman ITI, 491 F. Supp. at 974.

The Court of Appeals in Chapman IV (December

This text is long and has been trimmed here. Open the source document for the complete record.