# Petition for Writ of Certiorari — Pickett v. Chapman

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0591%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 807

## Text

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

IE TRIO ... -cccscccesntonsensrecereasecuseasceedicannenensageorscosersoneeas
ia tdesniben padnccnenincnsioountbetnnenecanascasion
i nc iiadssciensnadohmmnebnnnknanitiersesbaneiceebanececnasenonee
Reasons for granting the petition ...............--.-.....2-2.2.....--
a lednccinniapninestneanvexatonmurocdeosinnssesenses
Nee a cas aseebacepennninencemens
lll sciccnidastledksenianonnense seienssahsannisiniibininniaaneng eek
TE asesasesdaganenbaseciasbnonausensrsauacesinns
Neen ita ccsictsedseninkiaietikisedignoetansehaemhanetatennes
ail dia cadicheaeieancpantindqusegeeaneyemmeniinstenecccnsteseseee
Appendix F ................ irate anal ditdier ob Mictsldcbesenentehansanctonseuses
NE ee
a ssnnnhacgntabebnrcnnonciccnneas
Nee Nic cislahnl ncinhiabaeninbanentindetisnenisenens
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.

43a

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

44a

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.

45a

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

47a

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 o

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0591%3A1. Public record. Not legal advice.