Petition for Writ of Certiorari — DeRobertis v. Henderson

Supreme Court, U.S.

J FILLED

91°1255 | JAN 3.9 1999

No. OFFICE GF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

RICHARD DeROBERTIS, Warden: and

MICHAEL O’LEARY, Assistant Warden,

Petitioners,

ROBERT HENDERSON; THOMAS JEFFERSON;

WILLIE WILLIAMS; and WARREN LEE HARRIS,

Individually and on behalf

of all others similarly situated,

Respondents.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

ROLAND W. BURRIS

Attorney General

State of Illinois

ROSALYN B. KAPLAN

Solicitor General

Counsel of Record

JENNIFER A. KELLER

Assistant Attorney General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3698

Counsel for Petitioners

Printed by Authority of the State of Illinois (P.O. 35352—60—1-30-92)

QUESTIONS PRESENTED

1. Whether prison officials are entitled to qualified im-

munity from liability for damages in connection with

their course of action during temporary, unprecedented

emergency conditions at the prison, notwithstanding

the existence of prior case law to guide their conduct

under non-emergency circumstances?

bo

Whether the warden and assistant warden of a max-

imum security prison may be held liable for failure

to personally verify the satisfaction of each prisoner’s

clothing and supply needs during a period of unprece-

dented cold weather conditions coupled with a mal-

functioning heating system?*

*

Petitioners present this question in an effort to preserve the

issue for argument in the event certiorari is granted on the first

question presented. It is not argued as an independent reason for

the grant of certiorari.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ................4..

TABLE OF AUTHORITIES 2.2 -sccccsccivess

OPINIONS BEAST ov ciccs ca ceccscenvessecs

FUR TSIC LAS 6 ce hv cans cxdnapeonseeeauenies

CONSTITUTIONAL PROVISION

iat A}? erent reer ye eee ror

STATEMENT OF THE CASE ...............

Procedural Background ............se2se6

Factual Background .............sseese0s-

The bhanmbew’ GO coi < dacad ee sans cnc es

The Prison Officinin’ COSO 6.00 cick cance

REASONS FOR GRANTING THE WRIT....

THE SEVENTH CIRCUIT’S OVERLY BROAD

GENERALIZATION OF THE EIGHTH AMEND-

MENT RIGHTS AT ISSUE DEPRIVED PETI-

TIONERS OF THEIR RIGHT TO QUALIFIED

IMMUNITY FROM LIABILITY FOR AD-

VERSE CONDITIONS OF CONFINEMENT IN

CONNECTION WITH THEIR RESPONSE TO

EMERGENCY WEATHER CONDITIONS AND

EQUIPMENT MALFUNCTIONS AT THE

PENAL INSTITUTION THAT THEY SUPER-

gs | rr eee net crore ss ea

CONCLANSIOIS 4.0445 440 000d see ee eee aes

PAGE

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APPENDIX

Opinion of the U.S. Court of Appeals, Seventh

Circuit, August 15, 1991 ...............

Judgment of the U.S. Court of Appeals, Seventh

Larewus, Ammuat 15, 1001 .........s.005

Opinion of the U.S. District Court for the

Northern District of Illinois, Eastern Divi-

sion, in Jefferson v. Lane and Henderson v.

a ee

Judgment of the U.S. District Court for the

Northern District of Illinois, Eastern Divi-

sion, in Jefferson v. Lane and Henderson v.

a a a: 2

Memorandum Opinion and Order of the U.S

District Court for the Northern District of

Illinois, Eastern Division, in Harris v.

DeRobertis, November 18, 1988 .........

Judgment of the U.S. District Court for the

Northern District of Illinois, Eastern Divi-

sion, in Harris v. DeRobertis, November 18,

SR Ar A ea ae

Memorandum Order of the U.S. District Court

for the Northern District of Illinois, Eastern

Division, in Williams v. DeRobertis, No-

ee eke wens

Judgment of the U.S. District Court for the

Northern District of Illinois, Eastern Divi-

sion, in Williams v. DeRobertis, November

18, 1988

Order of the U.S. Court of Appeals denying

petition for rehearing, November 1, 1991 ..

PAGE

App. 1

App. 11]

App. 13

App. 22

App. 23

App. 34

App. 39

App. 36

App. 37

iv

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ...

Powers v. Lightner, 820 F.2d 818 (7th Cir. 1987)

Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988) .

Wilson v. Seiter, ___ U.S. ___, 111 S. Ct. 23821

Lo | PERT CeCe ETT CT Pere rere ee

Other Authorities

Sa Cn I We ons oc ea awk « Oe as

me ep | SA eee

DO

DO

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

RICHARD DeROBERTIS, Warden: and

MICHAEL O’LEARY, Assistant Warden,

Petitioners,

ROBERT HENDERSON; THOMAS JEFFERSON;

WILLIE WILLIAMS; and WARREN LEE HARRIS,

Individually and on behalf

of all others similarly situated,

Respondents.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit is reported at 940 F.2d 1055, and is reprinted in

the appendix hereto at App. 1.

The Court of Appeals’ decision reflects a consolidated

disposition of three decisions of the United States District

Court for the Northern District of Illinois, Eastern Divi-

sion, none of which is reported. The memorandum opin-

ion in Jefferson v. Lane and Henderson v. Lane (Nos.

82 C 1263 and 82 C 0887 consolidated), is reprinted in the

appendix hereto at App. 13. The memorandum opinion and

order in Harris v. DeRobertis, No. 86 C 5094, is reprinted

in the appendix hereto at App. 23. The memorandum or-

der in Williams v. DeRobertis, No. 86 C 9267, is reprinted

in the appendix hereto at App. 35.

JURISDICTION

The judgment of the court of appeals was entered on

August 15, 1991. A petition for rehearing was denied on

November 1, 1991. App. 37. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const. amend. VIII

Excessive bail shall not be required. nor cruel and un-

usual punishments inflicted.

STATEMENT OF THE CASE

Procedural Background

Respondents, inmates at the Stateville Correctional

Center, a maximum security prison in Joliet, Illinois,

brought these actions claiming violations of their rights

to be free from cruel and unusual punishment, as a result

of the conditions at Stateviile from January 8, 1982 through

January 11, 1982. During that time, Stateville was beset

with record-breaking cold weather; additionally, the heat-

ing system of the segregation cellhouse in which the re-

spondents were housed was not working to its full capaci-

ty. The essence of the respondents’ complaints is that the

petitioners, by failing to take various actions and con

tinuing to house the inmates in the B-West segregation

unit, which was concededly cold during that four-day

—3—

period, violated the inmates’ eighth amendment rights to

be free from cruel and unusual punishment.

After a jury trial, a verdict was returned in favor

of respondents Henderson and Jefferson. The court, how-

ever, granted petitioners’ motion for a judgment notwith-

standing the verdict on the basis of qualified immunity.

App. 22.

In separate proceedings based on the same facts and

circumstances, the district court dismissed the complaints

filed by respondents Harris and Williams. App. 34, 36.

By order of the court of appeals, all of the cases were

consolidated for purposes of appeal.

The Seventh Circuit reversed the district court’s grant

of qualified immunity to petitioners and its entry of a

judgment notwithstanding the verdict. It also vacated the

dismissals of the Harris and Williams complaints, and re-

manded those cases for further proceedings. App. 12.

Petitioners’ request for a rehearing was subsequently

denied, as was their motion to the Seventh Circuit to stay

its mandate pending application for certiorari.

Factual Background*

During the period from January 8, 1982, through Jan-

uary 11, 1982, the entire northern section of the State

of Illinois was beset by record-breaking cold weather.

(“H” R. Doc. 92 at 40). The temperature measured 22

* These facts are drawn primarily from the Henderson and Jeffer-

son records, and references to the records will be in the form of

“H” R. Doe. ___., and “J”? R. Doe. ___ as appropriate. Refer-

ence to Volumes I-III of the transcript of proceedings will be to

Tr. 1, ; ae « OF ir. 4,

—4—

degrees below zero with a wind chill factor of 80 degrees

below zero. (“H” R. Doc. 92 at 40-41). Henderson and Jef-

ferson, two inmates at Stateville, were housed in the B-

West segregation area within Stateville during this ex-

tremely cold period. (‘““H’”’ R. Doc. 92 at 34).

It is undisputed that on January 8, 1982 the main heat-

ing system of B-West was not working to full capacity;

it is also undisputed that while attempts were made to

repair the heating system, that system was not working

at full capacity until January 12, 1982. (/d.).

The Inmates’ Case

Robert Henderson

During the four-day period in question, Henderson did

not leave his cell. (Tr. 1, 37). As to the condition of the

cellhouse, Henderson said that there were several broken

windows in the wall opposite his cell; some of the broken

windows were covered with cardboard and blankets. (Tr.

1, 38).

Henderson testified that the only clothing he had in

B-West was what he had on when he was brought to seg-

regation. (Tr. 1, 41). When asked why he did not have

any of the clothes from his cell in C House, Henderson

replied that ‘Lieutenant Keane instructed [him] that [he]

couldn’t take nothing with [him] at that particular time.”’

(Id.). With respect to his bed coverings, Henderson tes-

tified that he was initially given two sheets and was sub-

sequently given a blanket; he claimed that he asked for

additional blankets, but stated that he received none. (Tr.

1, 48). He then testified as to the effects of the cold

weather on him and his cellmate.

7 t

|

Upon cross-examination, Henderson acknowledged that

inmates had been responsible for the broken windows

which were opposite the cells. (Tr. 1, 60). He also acknowl.

edged that he was brought cold tablets and aspirin during

the four-day period at issue. (Tr. 1, 64).

Thomas Jefferson

Jefferson stated that he was transferred to B-West seg-

regation on December 25, 1981. (Tr. 1, 79). Like Hender-

son, Jefferson was permitted to bring only the clothes he

was wearing at the time of his transfer to B-West. (Tr.

1, 82). Jefferson stated, however, that he never asked

anybody about obtaining the clothing he had left behind

in C-House. (Tr. 1, 83). He also testified about the effect

of the cold weather.

Upon cross-examination, Jefferson was questioned about

his testimony that there was no heat in B-West. He ad-

mitted that there were several heaters in B-West: he

could only state that the one heater near his cell was not

operating properly. (Tr. 1, 128-29),

Other Testimony

Three other inmates testified, describing the conditions

in B-West. (Tr. 1, 143-58, 160-69, 174-98). Inmate Mondie

testified regarding his assistance of correctional employees

who were engaged in efforts to repair the heating system.

(Tr. 1, 174 - Tr. 2, 198).

—

The Prison Officials’ Case

Michael O’Leary

O’Leary, the Assistant Warden of Stateville, explained

that the facility experienced staff shortages during the

four-day period in question, due to the extreme weather

conditions. (Tr. 2, 257). In order to alleviate the problems

with staff shortages, overtime was implemented. (/d.).

When asked whether he had ever contemplated moving

the inmates from B-West to another part of the institu-

tion, O’Leary replied in the negative. (Tr. 2, 259). Elabo-

rating, he noted that there were special considerations

concerning the inmates in B-West because it housed pro-

tective custody and segregation inmates; the unique cir-

cumstances surrounding those inmates required direct

supervision for security purposes. (Tr. 2, 260-262). In light

of the security rules which applied to the two distinct

groups of inmates, O’Leary stated that he could not house

segregation inmates with general population inmates. (/d.).

Q’Leary recalled conversations he had with several of

the inmates in B-West. He did not recall speaking to any

specific inmates; he just recalled that he had spoken with

several of them on the topic of the cold conditions. (Tr.

2, 273). He indicated that the purpose of his conversa-

tions was to inform the inmates that the prison officials

were working on the problem. (/d.).

Q’Leary was asked whether he had specifically looked

inside Henderson and Jefferson’s cell to see if they had

adequate clothing and blankets; he replied in the negative.

(Tr. 2, 295). Elaborating, O’Leary stated that he did not

deal with those two inmates specifically. (Tr. 2, 296). He

also noted that he was not aware that they were missing

any clothes. (/d.). When asked if he had done anythin

y

yc

—_—(—

to make sure that the broken windows were covered,

O’Leary said that he had spoken with Superintendent

Boles about covering the windows with cardboard. (Tr.

2, 297). Blankets or cardboard were not put in front of

the cells in B-West because that would have presented

both a security risk and a fire hazard. (Id.).

O’Leary further testified that he did not return Hen-

derson or Jefferson to their cells in C-House; nor did he

provide auxiliary heaters in B-West. (J/d.). Additionally,

O’Leary did not contact other prison facilities for the pur-

pose of transferring the segregation inmates. (Tr. 2, 298).

He added that it would have been impractical to transfer

the segregation inmates to other institutions due to the

extreme weather conditions throughout the State and the

fact that such a move would entail unacceptable security

risks. (Tr. 2, 312).

Richard DeRobertis

DeRobertis was the Warden of Stateville during the

pertinent time period. (Tr. 3, 401). When asked about the

heating system in B-West, DeRobertis responded that he

had never been informed that heat was not functioning.

(Tr. 3, 432). In response to a query about his contact with

the plaintiffs during that period, DeRobertis testified that

he had no contact with Henderson or Jefferson. (Tr. 3,

433). DeRobertis further testified that he was not pres-

ent when Henderson or Jefferson were brought to segre-

gation. (Tr. 3, 443).

As to the possibility of moving the inmates to another

cellhouse or to another institution, DeRobertis stated that

there could not have been an evacuation of B-West due

to the security risks involved in such an act. (Tr. 3, 434).

Specifically, DeRobertis noted that it took two days to

=

move segregation inmates within the cellhouse itself; he

added that there was not enough security to move the

segregation inmates to other parts of the institution. (Tr.

3, 435, 438).

Delineating his duties upon cross-examination, DeRober-

tis stated that he was generally responsible for the overall

functioning of the institution. (Tr. 3, 446). He was not,

however, aware of heating repairs which took place in B-

West. (Tr. 3, 447). In response to a question of whether

he checked to see that Henderson and Jefferson had proper

clothing and blankets, DeRobertis answered in the nega-

tive: “([t]hey were one of two hundred people and, no, I

did nothing to specifically check on those two individuals

that’s correct.” (Tr. 3, 449).

Other Testimony

Boles was the Superintendent of B-West from October,

1981 until April, 1982. (Tr. 2, 316). He was responsible

for ensuring that all three shifts within B-West were fully

staffed; he was also responsible for delivering the basic

services to the B-West inmates. (/d.). Such services in-

cluded recreation, showers, medical attention and the dis-

tribution of basic supplies which were passed out weekly.

(/d.). Boles further testified that he was responsible for

the repairs and maintenance in B-West; specifically, it was

his duty to ensure that the proper work orders were re-

quested when malfunctions arose. (Tr. 2, 324).

Milo Newton (‘‘Newton’’), who was a correctional ser-

geant at Stateville, testified that he was assigned to B-

West during the time in question. (Tr. 2, 364). He said

that his duties at that time were to oversee the perform-

ance of the other unit officers and to coordinate activities

for the inmates in B-West. (/d.). Newton stated that dur-

~~

ing that period he received inmate complaints regarding

the cold conditions; he noted that most of the complaints

involved requests for additional blankets. (Tr. 2, 367). He

testified that some blankets were distributed to B-West

inmates. (/d.).

REASONS FOR GRANTING THE WRIT

THE SEVENTH CIRCUIT’S OVERLY BROAD GENERAL-

IZATION OF THE EIGHTH AMENDMENT RIGHTS AT

ISSUE DEPRIVED PETITIONERS OF THEIR RIGHT TO

QUALIFIED IMMUNITY FROM LIABILITY FOR AD-

VERSE CONDITIONS OF CONFINEMENT IN CON-

NECTION WITH THEIR RESPONSE TO EMERGENCY

WEATHER CONDITIONS AND EQUIPMENT MALFUNC-

TIONS AT THE PENAL INSTITUTION THAT THEY

SUPERVISED.

In Wilson v. Seiter, ___ U.S. ___, 111 S. Ct. 2321

(1991), it was taken for granted “that if a prison boiler

malfunctions accidentally during the cold winter, an in-

mate would have no basis for an Eighth Amendment

claim, even if he suffers objectively significant harm.” 111

S. Ct. at 2325. In the present case, the Seventh Circuit

held not only that such a scenario could give rise to liabil-

ity on the part of prison officials, but that a reasonable

official should have known, in January 1982, that the tem-

porary failure to provide prisoners with adequate heat

under such emergency conditions was a clearly established

constitutional violation.

The Seventh Circuit broadly framed the qualified im-

munity question as whether “pre-1982 cases describe a

clearly established constitutional right of prison inmates

to adequate heat.” By so doing, the court effectively ‘‘con-

vertled] the rule of qualified immunity that our cases

—10—

plainly establish into a rule of virtually unqualified liability

simply by alleging violation of [an] extremely abstract

right{ ].’”’ Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Petitioners do not dispute a general right of prisoners

to receive adequate heat, but they submit that a rule of

such generality cannot reasonably be applied to evaluate

their actions under emergency, rather than ordinary, cir-

cumstances. Anderson v. Creighton, 483 U.S. at 639. The

proper qualified immunity inquiry in this case is whether

it was authoritatively decided in 1982 that the actions

undertaken by petitioners in response to the accidental

heating malfunction, during unprecedented weather con-

ditions, were constitutionally inadequate. Wilson v. Seiter

strongly suggests that, even now, the eighth amendment

does not shield prisoners from the temporary ill effects

of emergency weather situations. Petitioners submit that

the contrary cannot have been the clearly established law

a decade ago.

The Seventh Circuit’s refusal to narrow the qualified

immunity issue beyond the general obligation to provide

heat in prison cells demonstrates a need for this Court

to revisit the immunity doctrine, especially in terms of

its extension to emergency temporary situations where

normal services cannot be supplied. The particular circum-

stances under which a state official acts must be recog-

nized to control not only his ultimate liability, but his abil-

ity to recognize the parameters of implicated rights.

Given the unprecedented conditions at Stateville in Jan-

uary 1982, and the genuine security concerns that limited

officials’ options in responding to the emergency, the

prison officials responsible for the institution as a whole

should not be held personally liable for continuing to

operate their institution with, the expectation that weather

| an

conditions would improve and equipment malfunctions

would soon be repaired. The body of law in existence in

1982 did not establish a constitutional right to be free

from temporarily inadequate heat during an emergency.

While it is conceded that there were several pre-1982

cases establishing an inmate’s “general” right to adequate

heat (see App. at 6-7), the District Court correctly ob-

served that:

none of the prior cases had dealt with the situation

confronting the defendants which was the temporarily

inadequate heat in an eighth amendment context.

The defendants had no instructive legal precedent

to look to with which to conform their actions. With

hindsight plaintiffs’ counsel suggested that to avoid

an eighth amendment violation the defendants should

have moved plaintiffs and the entire Cellhouse B-

West to other locations. (Tr. 486). Fixing the B-West

heating system, which was being attempted, or the

temperature rising, which was beyond defendants’

control, would have produced the same result.

(“H” R. Doc. 118 at 8; App. at 19-20).

Unquestionably, petitioners were confronted with a unique

situation which did not lend itself to an easy solution.

Their determination that the inmates could not be re-

located, but that repairs to the heating system would be

expedited and blankets would be distributed, was not

clearly established, in 1982, to constitute deliberate in-

difference to the welfare of the inmates.* The dearth of

* Respondents testified to their complaints to petitioners, either

orally or in writing, about the temperature in B-West; however,

a failure to respond personally to each complaint does not establish

petitioners’ liability under the eighth amendment. For example,

O’Leary’s uncontroverted testimony reveals that he advised Super-

(Footnote continued on following page)

=

“closely analogous” case law on this issue should have

led the Seventh Circuit to sustain the District Court’s rul-

ing on qualified immunity. See, e.g., Rakovich v. Wade,

850 F.2d 1180, 1209 (7th Cir. 1988); Powers v. Lightner,

820 F.2d 818, 821 (7th Cir. 1987).

In sum, this is not a typical “‘conditions of confinement”’

case, but one which presents a significant question re-

garding prison conditions during a temporary and extra-

ordinary situation. This Court is urged to grant certiorari

to examine the propriety, for qualified immunity purposes,

of holding supervisory prison officials who are attempting

to cope with an emergency to the most general standards

applicable to ordinary circumstances and conditions.

continued

intendent Boles to distribute blankets to the inmates. (Tr. 2, 270).

Boles testified that blankets were distributed; his testimony was

corroborated by Sergeant Newton. (See Tr. 2, 327, 367). Petitioners

were unable to state that a particular respondent had, :n fact,

received specific supplies, but it is untenable to suggest that clear-

ly established law required O’Leary either to ensure Boles’ compii-

ance or distribute the blankets himself. Accordingly, petitioners

have sought to preserve in this petition an issue not addressed

by the Seventh Circuit, although it was raised before that court:

whether any constitutionally cognizable harm to respondents was

personally attributable to the petitioners.

*

le.

CONCLUSION

For the foregoing reasons, petitioners respectfully pray

that a writ of certiorari be granted to review the decision

of the Seventh Circuit.

Respectfully submitted,

ROLAND W. BURRIS

Attorney General

State of Illinois

ROSALYN B. KAPLAN

Solicitor General

Counsel of Record

JENNIFER A. KELLER

Assistant Attorney General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3698

: —

Counsel for Petitioners

APPENDIX

App. 1

IN THE

UNITED STATES COURT OF A PPEALS

FOR THE SEVENTH CIRCUIT

No. 88-2698

ROBERT HENDERSON and THOMAS JEFFERSON.

Pla intiffs-Appella nts.

RICHARD DEROBERTIS. Warden: and

MICHAEL O’LEARY, Assistant Warden.

Defendants Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Divisio

Nos. 82 C 887 and &2 C 1263—James F Holderman, Juda

os

Nos. 88-3407, 88-3430

WILLIE WILLIAMS: and WARREN LEE HARRIS, Individ

ually and on Behalf of all Others Similarly Situated,

Plaintiffs Appellants,

RICHARD DEROBERTIS and Mi HAEL O’LEARY,

Defendants-A ppellee s.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

Nos. 86 C 5094 and 86 C 9267—Milton I. Shadur, Juda

ARGUED May 10, 1990—Decipep Auci sT 15, 199]

App. 2

Before COFFEY and KANNE, Circuit Judges, and

E.SCHBACH, Senior Circuit Judge.

KANNE, Circuit Judge. During a four-day period in

1982, the outdoor temperature at Illinois’ Stateville Cor-

rectional Center plunged to a low of 22 degrees below

zero; the prison’s heating system in Cellhouse B-West mal-

functioned at the same time. Two of some 300 inmates

housed in B-West, Thomas Jefferson and Robert Hender-

son, filed separate complaints under 42 U.S.C. § 1983

alleging that prison officials violated their eighth amend-

ment rights by subjecting them to freezing temperatures

which constituted unusual punishment. In a consolidated

trial a jury apparently agreed that because of the deliber-

ate indifference of prison officials, Jefferson and Hender-

son received neither adequate protection nor relief from

the freezing conditions in their cells. The jury awarded

each plaintiff $3,000.00 in compensatory and $2,000.00 in

punitive damages. Defendants filed a motion for judgment

notwithstanding the verdict, or in the alternative, a new

trial. The district judge entered judgment in favor of

defendants notwithstanding the verdict because he found

that qualified immunity protected the officials from liabil

ity. The motion for a new trial was not considered.

Soon after the jury returned their verdicts, two other

inmates of B-West, Warren Lee Harris and Willie Williams,

filed separate § 1988 complaints based upon the same fac

tual circumstances. Harris also sought to certify as a class

the prisoners confined in Cellhouse B-West during the

four-day period. The district judge to whom the Harris

and Williams cases were assigned, put these cases on hold

until a decision was rendered on the defendants’ post-trial

motions for judgment notwithstanding the verdict in the

Henderson and Jefferson cases. After the judgment not

withstanding the verdict was granted in favor of the

prison officials, class certification was granted to Harris.

The Harris and Williams cases then were dismissed with

prejudice on the basis of the qualified immunity decision

rendered in the Henderson and Jefferson cases.

App. 3

All four cases have been consolidated in this appeal.

Because we find that the prison officials were not entitled

to the protection of qualified immunity, we reverse the

district court’s judgment notwithstanding the verdict,

reinstate the jury’s verdicts in favor of Henderson and

Jefferson, and vacate the dismissal of the complaints of

Harris and Williams and remand those cases for further

proceedings.

The outcome of this appeal is based on the judgment

notwithstanding the verdict entered in favor of Jefferson

and Henderson,! and our review of that decision is de

novo. David Copperfield’s Disappearing, Inc. v. Haddon

Advertising Agency Inc., 897 F.2d 288, 291 (7th Cir. 1990);

Webb v. City of Chester, 813 F.2d 824, 827 (7th Cir. 1987).

A judgment notwithstanding the verdict, granted in

favor of a defendant, “is proper only if reasonable peo-

ple, viewing the facts most favorably to the plaintiff and

disregarding conflicting unfavorable testimony, could not

conclude that the plaintiff has made out a prima facie

case.’ Rakovich v. Wade, 850 F.2d 1180, 1188 (7th Cir.)

(citing Crowder v. Lash, 687 F.2d 996, 1002 (7th Cir.

1982)), cert. denied, 488 U.S. 968, 109 S. Ct. 497 (1988).

We must view all the evidence and inferences in the light

most favorable to Henderson and Jefferson, who prevailed

with the jury; any conflicts in the evidence must be re-

solved in favor of those inmates and every permissible

' The question of a new trial is not addressed in this appeal. Not

withstanding Federal Rule of Civil Procedure 5O(cX1), there was

no ruling on the alternate motion for a new trial when the JNOV

was granted. As we have said before, where the motion for a new

trial is not pressed on the trial court after the grant of JNOV,

it is abandoned. Oberman v. Dun & Bradstreet. Inc., 507 F.2d 349,

303 (7th Cir. 1974); Vera Cruz v,. Chesapeake & O. R. Co., 312

F.2d 330 (7th Cir.), cert. denied, 375 U.S. 813, 84S. Ct. 44 (1963).

Here the appellees failed to pursue their motion for a new trial]

with the district judge and furthermore, failed to argue for a rul-

ing on that motion in this appeal; we are not obliged to remand

for such a ruling.

App. 4

inference must be drawn in their favor. Rakovich, 850

F.2d at 1187-88; Mathewson v. National Automatic Tool

Co., 807 F.2d 87, 90 (7th Cir. 1986). Thus, we base our

analysis on the following facts which are presented with

the required inferences drawn and conflicts resolved in

favor of Henderson and Jefferson.

Frigid weather descended upon northern Illinois from

January 8th through January 11th of 1982. The sub-zero

temperatures recorded dropped to twenty-two degrees

below zero with a corresponding wind chill factor of eighty

degrees below zero. During these abnormally cold days,

many areas in the Stateville Correctional Center experi-

enced colder than usual temperatures. But in Cellhouse

B-West, the heating system malfunctioned and the inside

temperatures there fell and remained below freezing.

Broken windows in the cell block permitted the frigid

outside air to flow in, ice formed in the cells, and “it was

cold enough to see your breath.” Richard DeRobertis, the

former warden of Stateville, and Michael O’Leary, the

former assistant warden of operations, were present in

B-West at various times during the period from January

8 through January 11. O’Leary testified that it was im-

portant with the kind of environmental conditions being

experienced by the inmates that the administrative of.-

ficials be present so inmates would know that officials

were aware of the severity of the condit*vns. Correctional

officers, cellhouse workers and the warden wore winter

coats, hats and gloves while in B-West during this four

day period. An inmate plumber while doing work in B-

West on January 10th wore an overcoat with fur inside,

a jumpsuit, pants, shirt, sweatpants, sweatshirt, longjohns,

three pairs of socks, work boots with rubber boots over

them, gloves and a skullcap and still was not warm.

Segregation inmates who were moved to B-West from

their general population cells for violations of prison rules

were not permitted to bring along any of their extra

clothes such as winter coats or additional shirts. Hender

son testified that after the heating system malfunctioned

he asked O’Leary for blankets and clothes. Jefferson

App. 5

wrote a letter to DeRobertis complaining that there was

no heat, and also asked O'Leary, as he made his rounds.

to get him out of Cellhouse B-West.

The assistant warden told the Superintendent that extra

blankets should be distributed. The superintendent said

that extra blankets were passed out starting on Friday,

the 8th. A senior corrections officer permitted extra

blankets to be distributed upon request, provided that in-

mates would not use them as rugs. But Henderson, Jeffer-

son and Harris did not receive additional blankets 2

Because of security concerns and because his personnel

were working to fix the heat problem, assistant warden

O’Leary never contemplated moving inmates from B-West

to another part of the institution where the heating

system worked. Moving a prisoner safely from his cell in

Cellhouse B-West to other less secure areas required the

presence of a correctional officer and the use of handcuffs

on the prisoner. Moreover, despite efforts to bring in em-

ployees stranded in their homes by the cold weather,

Stateville experienced staff shortages during the four-day

period. Stateville officials took measures to have the

heating system repaired, but four days passed before

Henderson and Jefferson were provided with relief from

the freezing conditions in Cellhouse B-West.

It was solely on the basis of qualified immunity that

the verdict in favor of Henderson and Jefferson was set

aside. Qualified immunity is a question of law reserved

for the district judge and not the jury, but it must be

determined within the framework of the particular facts

of the case. Rakovich, 850 F.2d at 1180. Thus, it is in

the context of the foregoing facts that we must judge the

propriety of the district judge’s grant of a judgment not-

withstanding the verdict in favor of the defendants.

Government officials performing discretionary functions

will be shielded from liability for damages where their

* Harris testified in the Henderson and Jefferson jury trial prior

to filing his own complaint.

App. 6

conduct does not violate “clearly established statutory or

constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S. Ct. 2727, 2788 (1982). A constitutional right still

may be clearly established even if the precise action in

question has not previously been held unlawful, however,

the unlawfulness must then be apparent in the light of pre-

existing law. Anderson v. Creighton, 483 U.S. 635, 640, 107

S. Ct. 3034, 3039 (1987). A court should “look to whatever

decisional law is available to ascertain whether the law

is clearly established.”’ Rakovich, 850 F.2d at 1209 (citing

Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985)).

Thus, a “ ‘sufficient consensus’ based on all relevant case

law, ‘indicating that the officials’ conduct was unlawful’ ’

is required. Landstrom v. Illinois Dept. of Children &

Family Serv., 892 F.2d 670, 676 (7th Cir. 1990) (quoting

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

denied 474 U.S. 1067, 106 S. Ct. 822 (1986)). This court

has further elaborated on the “clearly established”’ stan-

dard and said that “the right must be sufficiently particu-

larized to put potential defendants on notice that their

conduct probably is unlawful.”’ Colaizzi v. Walker, 812

F.2d 304, 308 (7th Cir. 1987) (citing Azeez v. Fairman,

795 F.2d 1296, 1301 (7th Cir. 1986)). We have held that

until a particular constitutional right has been stated so

that reasonably competent officers would agree on its ap-

plication to a given set of facts, it has not been clearly

established. Powers v. Lightner, 820 F.2d 818, 821 (7th

Cir. 1987), cert. denied, 484 U.S. 1078, 108 S. Ct. 1057

(1988).

In its judgment, the district court said it could not “find

the right plaintiffs asserted under the facts of this case

to have been clearly established in 1982 to remove defen-

dants’ qualified immunity.” Nevertheless, the district

court, in its ruling, noted pre-1982 cases where appellate

courts held that the constitution required prisoners to be

provided with adequate heat and shelter. For example,

the district court cited Lareau v. Manson, 651 F.2d 96

(2d Cir. 1981) (prisoners are entitled to adequate shelter);

App. 7

Wright v. Rushen, 642 F.2d 1129. 1132-33 (9th Cir. 1981)

(an institution has eighth amendment obligation to pro-

vide prisoners with adequate shelter or quarters); Ramos

v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) (the state

must provide reasonably adequate heat to inmates), cert.

denied, 450 U.S. 1041, 101 S. Ct. 1759 (1981); Wolfish v.

Levi, 573 F.2d 118, 125 (2d Cir. 1978) (the court said that

“an institution’s obligation under the eighth amendment

is at an end if it furnishes sentenced prisoners with ade-

quate food, clothing, shelter, sanitation, medical care, and

personal safety”), rev’d sub nom. Bell v. Wolfish, 441 U.S.

520, 99 S. Ct. 1861 (1979): Kirby v. Blackledge, 530 F.2d

083, 587 (4th Cir. 1976) (allegation of inadequate heating

reaches the level of cruel and unusual punishment); and

Bell v. Wolfish, 441 U.S. at 529 n.11, 99 S. Ct. at 1869

n.11. Plaintiffs cite additional cases in support of the same

proposition. See Bono v. Saxbe, 620 F.2d 609 (7th Cir.

1980) (the court said that insufficient heat is a factor fre-

quently crucial to finding cruel and unusual punishment);

Gates v. Collier, 501 F.2d 1291, 1300-01 (Sth Cir. 1974)

(the court found that the “bathroom, kitchen, heating and

housing facilities [were constitutionally] inadequate.’’).

These pre-1982 cases describe a clearly established consti-

tutional right of prison inmates to adequate heat. Thus,

there was no question that in 1982 a reasonable prison

official would have known of a prisoner’s constitutional

right to adequate protection from extreme cold.

The defendants position, however, is that they could not

have known that prisoners had a constitutional right to

adequate heat if emergency conditions intervened—appar-

ently because no reported court decision describing inmates’

constitutional rights addressed such a factual scenario. Put

another way, the defendants claim that there was no

clearly established constitutional right for prisoners to

have adequate heat and shelter during the period of ab-

normal weather and heating conditions and therefore the

defendants enjoyed immunity from the consequences of

their actions in merely restoring the heat to normal after

four days had elapsed.

App. 8

Contrary to defendants’ assertion, constitutional rights

don’t come and go with the weather. The right of prisoners

to adequate heat and shelter was known in 1982 and that

right is constant. What is not constant is the level of ef-

fort and the course of conduct by prison officials neces-

sary to provide adequate protection from extremely cold

weather.

Government officials will be shielded from civil damages

liability “fas long as their actions could reasonably have

been thought consistent with the rights they are alleged

to have violated.”’ Anderson, 483 U.S. at 638, 107 S. Ct.

at 3038. If the evidence demonstrates deliberate indiffer-

ence by defendants in light of known hazardous conditions

and while protective measures were in effect, then defen-

dants are not entitled to qualified immunity. Rellergert

v. Cape Girardeau, 924 F.2d 794, 797 (8th Cir. 1991). The

Supreme Court has said that “deliberate indifference”’ is

the standard to be used to determine the culpability of

officials in prison condition cases which include claims

alleging inadequacies in the temperature a prisoner is sub-

jected to in his cell. Wilson v. Seiter, __ ~U.S. ___., 111

S. Ct. 2321, 2326-27 (1991). In this circuit, we have said

that defendants acted with deliberate indifference if they

possessed actual knowledge of impending harm, easily pre-

ventable, so that a conscious, culpable refusal to prevent

the harm could be inferred from their failure to prevent

it. Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir.

1985), cert. denied, 479 U.S. 816, 107 S. Ct. 71 (1986).

It was the standard enunciated in Franzen (and ulti-

mately in Wilson), that the jury applied in determining

whether taking four days to repair the heating system

in B-West, without providing any temporary or alternate

means of protection from the subfreezing temperatures,

constituted deliberate indifference on the part of the de-

fendants. Whether the district judge or this court in weigh-

ing all the evidence in this case would have found that

the defendants acted with deliberate indifference is not

before us at this point. We are restricted in our review

of contested matters in this case to only those facts in

App. 9

evidence and inferences drawn therefrom which favor

Henderson and Jefferson. While given the full range of

evidence we may not have found that the defendants

acted with deliberate indifference, that was the finding

implicit in the verdict the jury was given the opportu-

nity to return upon the denial of defendants’ motion for

directed verdict. Great credence is given to a jury’s ver-

dict in appellate review of a judgment notwithstanding

the verdict based on a grant of qualified immunity. Reller-

gert, 924 F.2d at 797. As the district court found in its

analysis,

[t]he jury by its verdict awarding plaintiffs compen-

satory damages found that plaintiffs had shown by

a preponderance of the evidence [t]hat at defendants

O’Leary’s and DeRobertis’s direction, or with their

knowledge or consent, in deliberate indifference to

plaintiffs’ constitutional rights, plaintiffs were confined

in Cellhouse B-West from January 8th through Jan-

uary 11th, 1982... .[A]nd due to defendants’ delib-

erate indifference, plaintiffs did not receive adequate

clothing or protection from or relief from the cold.

In sum, in 1982 it was clearly established that prison

inmates had a right under the eighth amendment of the

Constitution to adequate heat and shelter. Viewing the

evidence in the light most favorable to Henderson and

Jefferson, the defendants knew of the hazardously cold

conditions those two inmates were experiencing in Cell-

house B-West. Thus, under the facts we must consider,

reasonable jurors could have found that the defendants’

conduct in leaving Henderson and Jefferson exposed to

temperatures below freezing for four days without afford-

ing them any protection beyond that usually provided

when the heating system functioned properly, constituted

deliberate indifference to their eighth amendment rights.

The district judge’s post-verdict finding of a lack of any

clearly established constitutional right under the facts of

this case was erroneous, as was his resulting grant of the

haan

App. 10

protection of qualified immunity to the defendants. The

existence of a constitutional right to heat and shelter pro-

tecting Henderson and Jefferson, coupled with the jury’s

reasonable interpretation of the facts in reaching its ver-

dict, precluded the district judge from entering a judg-

ment notwithstanding the verdict.

The dismissal of the consolidated case of Willie Williams

and Warren Lee Harris was predicated on the erroneous

grant of qualified immunity to the same defendants in the

case of Henderson and Jefferson. Therefore, those dis-

missals were also erroneously granted.

We REVERSE the district court’s grant of qualified im-

munity to the defendants and-its entry of a judgment not-

withstanding the verdict; order reinstatement of the jury’s

verdicts in favor of the plaintiffs Henderson and Jeffer-

son and direct that judgment be entered thereon; and

VACATE the dismissals of the complaints of Harris and

Williams and REMAND those cases for further proceed-

ings.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 11

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT—WITH ORAL ARGUMENT

Date: August 15, 1991

BEFORE:

Honorable John L. Coffey, Circuit Judge

Honorable Michael S. Kanne, Circuit Judge

Honorable Jesse E. Eschbach, Senior Circuit Judge

No. 88-2698

ROBERT HENDERSON and THOMAS JEFFERSON,

Plaintiffs-Appellants

MICHAEL P. LANE, Director, Illinois Department of Cor-

rection; RICHARD DeROBERTIS, Warden and MICHAEL

O’LEARY, Assistant Warden,

Defendants-Appellees

Nos. 88-3407 and 88-3430

WILLIE WILLIAMS and WARREN LEE HARRIS,

Plaintiffs-Appellants

RICHARD DeROBERTIS and MICHAEL O’LEARY,

Defendants-Appellees

p}

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 82 C 12638, Judge James F. Holderman

These causes were heard on the record from the above

mentioned district court, and were argued by counsel.

On consideration whereof, IT IS ORDERED AND AD.-

JUDGED by this Court that the district court’s grant of

qualified immunity to the defendants and its entry of a

judgment notwithstanding the verdict are REVERSED,

that the jury’s verdicts in favor of the plaintiffs Hender

son and Jefferson are ordered reinstated and it is directed

that judgment be entered thereon, and the dismissals of

the complaints of Harris and Williams are VACATED and

those cases are REMANDED for further proceedings, in

accordance with the opinion of this Court filed this date.

App. 13

[DATED AuGUST 1, 1988]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 82 C 1263 Consolidated with No. 82 C 0887

THOMAS JEFFERSON, —e

Plaintiff,

MICHAEL P. LANE, et al., ;

Defendants.

ROBERT HENDERSON, ee

Plaintiff,

MICHAEL P. LANE, et al.. :

Defendants.

MEMORANDUM OPINION

JAMES F. HOLDERMAN, District Judge:

On July 15, 1988, this court granted defendants’ post-

trial motion for judgment notwithstanding the verdict on

the basis of defendants’ qualified immunity. This memo-

randum opinion sets forth the court’s reasoning for that

decision.

FACTS

The two plaintiffs, Thomas Jefferson and Robert Hender-

son, in these consolidated cases, were cellmates at the

App. 14

Stateville Correctional Center (“Stateville’’) near Joliet,

Illinois during the period from Friday, January 8 through

Monday, January 11, 1982. During that period the north-

ern Illinois region where Stateville is located suffered an

unprecedented record-breaking, sub-zero cold spell. The

outside temperature reached from 22° to 25° below zero

with a wind chill of minus 80°.

The plaintiffs were confined in a first floor cell of the

building at Stateville known as Cellhouse B-West, a five-

level structure. At that time Cellhouse B-West housed in-

mates in protective custody and in segregation. Plaintiffs

were segregated from the general prison population due

to certain prison infractions they had committed within

the institution.

The main heating system malfunctioned of Cellhouse B-

West on January 8, 1982. Although attempts were made

to repair the heating system, heat was not restored to

the cellhouse until January 12, 1982. During that period

there was no thermometer inside B-West, but there is

no question it was cold in the plaintiffs’ cellblock. Numer-

ous windows had been broken allowing the outside air to

enter the cellhouse. Several witnesses testified that peo-

ple could see their breath in the cellhouse. It was cold

enough in the area where the plaintiffs were housed to

form ice.

In January 1982, the heating system for B-West had two

parts. The main source of heat was an induction heater,

which, when operating, used a single large fan to blow

hot air through a tunnel duct system that discharged at

ground level. As an auxiliary source of heat, the cellhouse

had six individual unit heaters. The unit heater hung from

the ceiling of the cellhouse. Each had its own blower,

which, when operating, moved air across steam-heated

App. 15

coils in the unit heater to provide heat in B-West. Steam

was the source of heat for the main heater as well as the

unit heaters. All steam was generated in a central plant

and, when operating, steam was piped into B-West to

supply both the main and unit heaters.

During January, 1982, the total inmate capacity of State-

ville was 2445 inmates. Actual occupancy of the facility

did not exceed 2053 inmates. During that month occupan-

cy of B-West, both segregation and protective custody in-

mates, was between 350 and 400 inmates.

The plaintiffs contended at trial pursuant to 42 U.S.C.

§ 1983 that defendants, by failing to take various actions

and continuing to house plaintiffs in the concededly cold

conditions inside Cellhouse B-West during that four-day

period, violated plaintiffs’ eighth amendment rights to be

free from cruel and unusual punishment.

The jury awarded each of the plaintiffs $3,000.00 com-

pensatory damages and assessed punitive damages against

the two defendants in favor of each plaintiff in the amount

of $2,000.00 for a total damage award of $5,000.00 to each

plaintiff.

The jury by its verdict awarding plaintiffs compensatory

damages found that plaintiffs had shown by a preponder-

ance of the evidence:

(t]hat at defendants O’Leary’s and DeRobertis’s direc-

tion, or with their knowledge or consent, in deliberate

indifference to plaintiffs’ constitutional rights, plain-

tiffs were confined in Cellhouse B-West from January

8th through January 11th, 1982. During that time

there was a malfunction in the cellblock heating sys-

tem, compounded by numerous broken windows, so

that temperatures in the cellblock were below freez-

ing, and due to defendants’ deliberate indifference,

App. 16

plaintiffs did not receive adequate clothing or pro

tection from or relief from the cold.

(Tr. 535; Agreed Instruction No. 12, pp. 43-44, Final Pre

trial Order)

sy assessing punitive damages against each defendant

the jury found that the plaintiffs had Shown by a pre

ponderance of the evidence that each of the defendants

acted “‘with malice, wilfulness, or callous and reckless in

difference to the rights of others.’’ (Tr. 541).

The Defense of Qualified Immunity

The defendants asserted the affirmative defense of quali

fied immunity but did not seek a pretrial determination

of the issue. Instead, defendants tendered a jury instruc

tion on the issue. (Df. inst. No. 7, Final Pretrial Order

No. 7). Plaintiffs properly objecte d to instructing the jury

on erry immunity citing Joseph v. Brierton, 739 F.2d

1244, 1249 (7th Cir. 1984). Defendants withdrew their ten

dened ‘qualified immunity” jury instruction and the court

took the issue under advisement with the defendants’ mo-

tion for direct verdict at the close of all the evidence.

After the jury returned its verdict, the defendants in their

post-trial motion reasserted the argument that they are

ititled to immunity from the damages awarded by the

jury.

The doctrine of qualified immunity articulated by the

Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800

(1982) shields public officials from civil liability for their

actions until the law upon which the damage liability is

premised is clearly established. The question of allowing

an official qualified immunity requires an objective deter

mination.

App. 17

The Seventh Circuit recently reaffirmed the proper ap-

proach set forth in Wade v. Hegner, 804 F.2d 67, 70 (7th

Cir. 1986) stating:

under Harlow the district court must conduct a two-

party analysis: (1) does the alleged conduct set out

a constitutional violation? and (2) were the constitu-

tional standards clearly established at the time in

question? .. . Intent is relevant to (1) but not to (2).

Rakovich v. Wade, No. 85-1529, slip op. at 58 (7th Cir.

June 8, 1988) (en banc). Consequently, the defendants’ in

tent is of no moment to the issue of whether or not they

should be accorded qualified immunity or not.

The application of qualified immunity turns on whether

the plaintiffs’ asserted constitutional right was clearly

established in the law at the time and within the factual

setting in which the defendants acted.

As the Supreme Court explained in Anderson Creigh

ton, 107 S.Ct. 3034, 30389 (1987):

The contours of the right must be sufficiently clear

that a reasonable official would understand that what

he is doing violates the right... . [I]n light of the

preexisting law the unlawfulness must be apparent.

Even before the Anderson explanation, the Seventh Cir-

cuit articulated ‘‘that the test for immunity should be

whether the law was clear in relation to the specific facts

confronting the public official when he acted.” Colaizzi

v. Walker, 815 F.2d 304, 308 (7th Cir. 1987). The factual

circumstances of the actions under scrutiny need not

be identical to those of prior holdings, Le Clair v. Hart,

800 F.2d 692, 696 (7th Cir. 1986), but closely analogous,

Powers v. Lightner, 820 F.2d 818, 821 (7th Cir. 1987) so

that “‘reasonably diligent government officials would have

known of the case law, related it to the situation at hand,

and molded their conduct according!\ |

(70 F.2d 619, 628 (7th Cir. 1985)

hus, in the case at bar. the defendant ictior

be defined or characterized according to the specifi

presented here and a comparison made to the body of

as it existed in January 1982. See Rakovich, supra at 55

06. In evaluating the specific facts regarding the issue

jualified immunity in the context of a motion for direct

verdict or a motion for judgment notwithstanding the

] + " . ' " » Il!) } ] ]

dict, the court must consider all the undisputed evid

n the record in the light most favorable to the

ant ld al iv

The enearific facte nracented har —~ i

if peciil Lact pDresenved nere, a recora-dreal

ae ‘old spel] ls —. .. eer

‘ , bOu! da\ LUI Oil and a Mailluyn»ne LONnINY ILA re ere

inie heating system, of course, are nowhere to be fou

{ ) ‘

inv pre-19& iSé addr ing the jUuestlol I pr

)] tion vithin Ln conte xT 6) | i) ‘ orht } heal Cy ey

) }

tutional violatio1

In 1987 the Seventh Circuit confronted with alleg:

of two months of inadequate heat in an Illinois prisor

there may be an eighth amendment violation. Citn

way of example one pre-1982 Tenth Circuit opin

seventh Circuit stated:

An allegation of inadequate heating may state a

eighth amendment violation. See, e.g., Ramos v. Lamn

639 F.2d 559, 568 (10th Cir. 1980) (“‘a state must pr

vide .. . reasonably adequate ventilation, sanitatio1

bedding, hygienic materials and utilities (i.e., |

cold water, light, heat, plumbing)’’) (citations omitt

cert. denied, 450 U.S. 1041 (1981) "i

Lewis Lane, 816 F.2d 1165, 1171 (7th Cir. 1987) (f

note omitted) (emphasis added). The Ramos cass

nate lass actlo! deait. however. not with temp i

App. 19

adequate heat, but with a multitude of ini albeit

permanent and failing conditions regarding inmate shelter,

food, sanitation among others.

Earlier Seventh Circuit authority, Bono v. Saxbe, 620

F.2d 609, 613 (7th Cir. 1980), stated:

Appellants have not contended that access to medical

care, bedding or heating was insufficient or that the

\utritional value of the food was inadequate; such fac

tors are frequently crucial to a finding of cruel and

unusual punishment.

Looking beyond Seventh Circuit case law, see, Powers

Lightner, 820 F.2d 818, 821 (7th Cir. 1987), one finds

that other courts prior to 1982 had held that providing

prison inmates inadequate shelter including inadequate

heat, constitute cruel and unusual punishment under the

eighth amendment. See, e.g., Lareau v. Manson, 651 F.2d

96, 106 (2nd Cir. 1981); Wright v. Rushen, 642 F.2d 1129,

1182-33 (9th Cir. 1981); Ramos v. Lamm, 6389 F.2d 559.

568 (10th Cir. 1980); Wolfish v. Levi, 5738 F.2d 118, 125

2nd Cir. 1978); Kirby v. Blackledge, 5380 F.2d 583, 587

(4th Cir. 1976). Moreover, the Supreme Court had stated

that adequate shelter was an institution’s obligation under

the eighth Capea See, e.g., Bell v. Wolfish, 441 U.S.

920, 529 n.11 | Although these cases may have made

it clear that ae heat for inmates was a requirement

for institutional compliance with the eighth amendment,

none of the prior cases had dealt with the situation con

fronting the defendants which was temporarily inadequate

heat in an eighth amendment context.

he defendants had no instructive legal precedent to

look to with which to conform their actions. With hind

sight plaintiffs’ counsel suggested that to avoid an eighth

amendment violation the defendants should have moved

App. 20

plaintiffs and the entire Cellhouse B-West to other loca

tions. (Tr. 486). Fixing the B-West heating system, which

was being attempted, or the temperature rising, which

was beyond defendants’ control, would have produced the

same result.

To properly consider the fact-specific analysis required

in determining whether qualified immunity applies and

considering the plaintiffs’ position favorably, the question

in this case should be expressed as follows:

When the defendants confronted January 1982 the

situation of being temporarily unable, due to the

weather and the malfunctioning heating wre ie to

provide adequate heat to the plaintiffs, should t

as reasonable prison officials have known based jaw

the law at the time that to continue to house the

plaintiffs in the segregation section of Cellhouse B

West in which the temperature was freezing until the

heater was fixed or the weather changed rather than

move them to other areas within the general prison

population was a violation of the plaintiffs’ eighth

amendment rights?

Looking at the case law as it existed at the time and

balancing the factors, cold temperatures in the cellhouse

against prison security in the situation, reasonable prison

officials could have differed as to whether the failure to

relocate the plaintiffs violated the eighth amendment

The Supreme Court had stated in 1979 in Bell v. Wolf

ish, 441 U.S. 520, 547,

(The problems that arise in the day-to-day ope ration

of a corrections facility are not susceptible of easy

solutions. Prison administrators therefore should }

accorded wide-ranging deference in the adoption oer

execution of policies and practices that in their judg

ment are needed to preserve internal order and dis

cipline and to maintain institutional security.

App. 21

It was cold in the cellhouse, but yet neither plaintiff

suffered any serious medical harm as a result of the inci-

dent. The evidence shows that at least one other inmate

in the cellhouse was taken to the prison medical facility

during the period when the need arose.

Taking all the specific facts and the case law into ac-

count, this court cannot find the right plaintiffs asserted

under the facts of this case to have been clearly estab

lished in 1982 to remove defendants’ qualified immunity.

Moreover, the acts of defendants under the circumstances

were not so egregious as to make the qualified immuni-

ty balancing test a foregone conclusion. See, Benson v.

Allphin, 768 F.2d 268, 276 (7th Cir.), cert. denied, 107

S.Ct. 172 (1986). Defendants should be accorded qualified

immunity.

CONCLUSION

Defendants’ motion for judgment notwithstanding the

verdict is GRANTED. Judgment is entered in favor of the

defendants. No costs.

ENTER:

s/ JAMES F. HOLDERMAN

JAMES S. HOLDERMAN

United States District Judge

DATED: August 1, 1988.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Eastern Division

JUDGMENT IN A CIVIL CASE

CASE NO.: 82 C 887 consolidated with 82 C 1263

Robert Henderson

Defendants

ans : Aas tes

and consolidated Wwitn

_ ‘a

Thomas Jefferson

= is

Plaintiff

Defendants

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

Decision by Court. This action came to trial or hear

ing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED defendants’ motion

for judgment notwithstanding the jury verdict is GRANTED.

No costs.

August 1, 1988 s/ H. STUART CUNNINGHAM

] date ( v erk

App. 23

[Dated November 18, 1988]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 86 C 5094

WARREN LEE HARRIS, ae

Plaintiff,

RICHARD DeROBERTIS, et al.. ,

Defendants.

MEMORANDUM OPINION AND ORDER

Warren Lee Harris (‘‘Harris’’) seeks to bring this 42

U.S.C. §1983 (“Section 1983’’) action not only on his own

behalf but for the entire class of prisoners who were con-

fined in Cellhouse B-West (“‘B-West’’) at Stateville Correc-

tional Center (“Stateville”) during the four day period of

January 8 through 11, 1982. Defendant Richard DeRobertis

(““DeRobertis,” then Stateville’s Warden) and Michael

O’Leary (“O’Leary,” then a Stateville Assistant Warden)

oppose such class certification, sought under Fed. R. Civ.

P. (“Rule’’) 23(a) and 23(b\X3). For the reasons stated in

this memorandum opinion and order:

l. Class certification is granted.

2. This action is dismissed on qualified immunity

erounds.

App. 24

Procedural Background

From January 8 through 11, 1982 B-West was totally

without heat. That was the coldest period in the recorded

history of this area (on January 10 it was 26° below zero,

with a wind-chill factor of 80° below).

Two of Harris’ fellow B-West prisoners, Robert Hender-

son and Thomas Jefferson, promptly filed pro se Section

1983 lawsuits in this District Court (Henderson v. Lane,

82 C 887 and Jefferson v. Lane, 82 C 1263), charging cruel

and unusual punishment—an Eighth Amendment viola-

tion.! Counsel were appointed to represent those plain-

tiffs, and when the cases ultimately went to trial before

this Court’s colleague Honorable James Holderman each

plaintiff was successful in obtaining a $5,000 damages

award (including punitive damages) from the jury hearing

their consolidated trial.

That success (coming in June 1986) triggered a flurry

of lawsuits by other B-West inmates, including Harris.

This Court appointed as Harris’ counsel the same able

lawyers who had prevailed in the Henderson-Jefferson

cases. On December 23, 1986 they came into court with

(1) an Amended Complaint expanding Harris’ individual

claim into one for the entire class described at the outset

of this opinion and (2) a motion for class certification. This

Court allowed the filing of the Amended Complaint but

entered and continued the motion for certification.

;

As always, for convenience and because of the universality «

the practice (despite its technical inaccuracy), this Court refers to

the underlying Bill of Rights provision rather than citing more

precisely to the Fourteenth Amendment (which is necessarily in

issue where state actors are involved, and which applies the Bill

7 »; . . +; via, - + Near o«yt} 5 hwy “ofor ’

of Rights guaranties only through incorporation by reference)

_

App. 25

Needless to say, this Court is well aware of the man-

date of Rule 23(c\1):

As soon as practicable after the commencement of

an action brought as a class action, the court shall

determine by order whether it is to be so maintained.

For that reason, this Court’s standard practice is to give

prompt attention to the certification issue in any puta-

tive class action case assigned to this Court’s calendar.

But this particular case presented a special situation.

With the vigorously-contested trial before Judge Holder-

man having resulted in a verdict against DeRobertis and

O’Leary, the important common questions of law and fact

bearing on their liability to other prisoners in the puta-

tive class appeared to have been resolved against De-

Robertis and O’Leary as a matter of offensive issue pre-

clusion (see Parklane Hosiery Co. v. Shore, 439 U.S. 322

(1979) and its progeny).? And with the predicate for liabil-

ity of DeRobertis and O’Leary thus firmly established,

the remaining issues applicable to Harris and to other

potential class members would only be those of damages

(or perhaps the possibility of no liability existing in some

unusual individual case)—and those issues appeared to this

Court to be clearly individual rather than class-oriented.

Accordingly, so long as the Henderson-Jefferson judgment

stood up Rule 23(bX3) would not be satisfied here, because

* As this Court has frequently written, it prefers not to use the

more common terms “res judicata” and “collateral estoppel” as

a contrasting pair, because the former term is also often confus-

ingly employed as the genus including both those species of pre-

clusion (see Justice Blackmun’s thorough treatment of the subject

in Migra v. Warren City School. District Board of Education, 465

U.S. 75, 77 n.1 (1984)). Accordingly this Court regularly speaks

of “claim preclusion” and “issue preclusion” Gust as Justice Black-

mun did throughout Migra).

App. 26

there would be a negative answer to the question whether

“the questions of law or fact common to the members of

the class predominate over any questions affecting onl)

individual members. r

What caused this Court’s deferral of Harris’ class certi-

fication motion (rather than considering its outright denial

of Rule 23(bX3) grounds) was the pendency of post-trial

motions in the Henderson-Jefferson cases before Judge

Holderman. Counsel for both sides in this action reported

those matters had been briefed and were under advise-

ment by Judge Holderman. Because any overturning of

the jury verdict—or even any modification of the substan

tive rulings—in those cases could have had an obvious im

pact on the appropriate ruling here, this action and the

class certification. motion were effectively put on hold

pending Judge Holderman’s decision.

On July 15, 1988 Judge Holderman announced his grant

ing of the DeRobertis-O’Leary motion for judgment not

withstanding the verdict on qualified immunity grounds,

and he then issued a memorandum opinion August 1 to

explain the reasoning supporting that decision.* This Court

promptly reactivated the motion for class certification, and

the parties have now completed briefing the issues.

As might pe expected, an appeai has been lodged from that

decision, so the matter is now pending before our Court of Ap

peals. In the meantime there had been a number of other Section

1983 actions brought by individual plaintiffs—also members of the

putative class—after the favorable jury verdict in Henderson

Jefferson. Since Judge Holderman’s decision, several of this Court’s

colleagues on whose calendars those other cases were pending have

dismissed them sua sponte pursuant to 28 U.S.C. §1915(d) on the

strength of Judge Holderman’s opinion in Henderson-Jefferson

App. 27

Rule 23(a) and 23(b)(3)

Although DeRobertis and O’Leary really do not serious-

ly question (save in one possible respect) the fact that this

case satisfies all the standards for class certification, a

brief run-through of those criteria is in order before this

Court turns to the one issue seriously advanced in op-

position to Harris’ motion. For convenience this opinion’s

capsule discussion will employ the inelegant terminology

that has come to be the accepted way of talking about

the Rule 23(a) standards.

As for “numerosity” (Rule 23(a)(1)), some 350 to 400

prisoners occupied B-West during the four-day period in

question. All were subjected to the same conditions and

are therefore putative class members. Under all the cases

that plainly meets the definition of “so numerous that

joinder of all members is impracticable’ (see, e.g., this

Court’s opinion in Williams v. Lane, 96 F.R.D. 383. 385

(N.D. Ill. 1982); 1 Newberg, Class Actions §3.05. at 14]

(2d ed. 1985)).

As for “commonality” (Rule 23(aX2)), this Court has said

“plaintiffs need only demonstrate there is at least one

issue of law or fact common to the claims of the class

members” (Armstrong v. Chicago Park District, 117

F’.R.D. 623, 628 (N.D. Ill. 1987)). Here the crucial ques-

tion is whether cruel and unusual punishment was inflicted

on the class members by their being subjected to the

extraordinary cold for a four-day period. That is enough.

As for “‘typicality”’ (Rule 23(aX3)), this Court’s colleague

Honorable James Moran has accurately said in Walters

v. Thompson, 615 F.Supp. 330, 334 (N.D. Ill. 1985):

The typicality requirement is satisfied if the named

representative’s claims have the same essential char-

acteristics as the claims of the class at large.

App. 28

There is no real question but that description fits this case

admirably. DeRobertis-O’ Leary Mem. 7-8 does not quarrel

with the definition (indeed it cites the same Seventh Cir-

cuit authority as Judge Moran did for that proposition),

but it then goes on to assert individualized distinctions

in the facts that may have impacted on different class

members. It is enough to say that “typicality” is not

synonymous with “identity,” else there would never be

an occasion to make the Rule 23(bX3) determination “that

the questions of . . . fact common to the members of the

class predominate over any questions affecting only indi-

vidua! members. . . .”” DeRobertis and O’Leary are simply

wrong on this issue.

Finally, as to “adequacy-of representation” (Rule 23(aX4)):

1. Harris meets that requirement because of the

coextensiveness of his own interests with those of al]

other class members.

2. Harris’ appointed counsel are especially well

qualified to urge the class’ interests vigorously and

effectively, not only because of the long-standing tra-

dition of pro bono publico service by their law firm

(Jenner & Block), having the resources and willing-

ness to act in that capacity, but also because the indi-

vidual lawyers have already done yeoman and effec-

tive service in this very situation in Henderson-Jeffer-

son.

Those two factors do the job (see, e.g., such cases as

Allen v. Isaac, 99 F.R.D. 45, 55 (N.D. Ill. 1988) and

Williams, 96 F.R.D. at 386).

So much for the Rule 23(a) requirements. In terms of

Rule 23(bX3), in the present posture of affairs the concern

that had caused this Court’s deferral of the certification

a ee

App. 29

motion in the first place has been eliminated—indeed, to

the disadvantage of the class. Now DeRobertis and O’ Leary

are not bound by an adverse decision in the Henderson-

Jefferson cases, and certainly the present DeRobertis-

O’Leary victory there does not bind Harris and the other

class members who have not yet had their own days in

court.4

That being so, it cannot now be gainsaid “that the ques-

tions of law or fact common to the members of the class

predominate over any questions affecting only individual

members. . . .”’ All class members are subject to and af-

fected by the dominant question of liability vel non. Under

present circumstances that heavily overshadows the ques-

tion bearing on individual claims, which would have to be

dealt with if the class were ultimately to prevail as to lia-

bility. And that means Rule 23(bX3) has been satisfied too.

Rule 23(0))(1)

All this, however, only sets the stage for the DeRobertis-

O’Leary opposition to current certification because of the

earlier-quoted command of Rule 23(c\(1). On that score

their Mem. 7 says this:

Defendants object to plaintiff's motion to certify a

class in this action as not timely pursuant to Rule

23(cX1) based upon the time that has elapsed since

the 1982 incident, the delay of filing for certification

until the judgment in Henderson and Jefferson, the

judgment notwithstanding the verdict granted to de-

fendants in the consolidated cases of Henderson and

Jefferson now on appeal to the Seventh Circuit, and

* Obviously the situation is not an appropriate one for applica-

tion of defensive issue preclusion notions.

the dismissal pursuant to 28 U.S.C. §1915(d) as de

scribed in the “Facts’’ Section above.

None of those factors is at all persuasive.

As for the “time that has elapsed since the 1982 inci

dent,” there is no question this action was timely when

filed—though that was four and one-half years after the

incident. That is so whether limitations were inapplicable

because of the two-year window established by Anton

Lehpamer, 787 F.2d 1141, 1146 (7th Cir. 1986) or whether

a five-year limitation period is rather the correct response

to Wilson v. Garcia, 471 U.S. 261 (1985) (see this Court’s

yl in Shorters v. City of Chicago, 617 F.Supp. 661,

663-66 (N.D. Ill. 1985))

Nor does the notion of “delay of filing for certification

until the judgment in Henderson and Jefferson” make any

sense in current times. This action was first filed only

after the Henderson-Jefferson judgment, and appointed

counsel then sought to convert it to a class action prompt

ly after their appointment. As the earlier discussion has

shown, the existence of the Henderson-Jefferson judgment

then militated against certification in this Court’s view

(and would likely have led to denial of certification had

it stood up). But certainly a delay in the filing of this

case cannot justify rejecting class certification once the

effect of the Henderson-Jefferson judgment—an adver

st so far as certification is concerned—has been lifted

(as now has).

As for “‘the judgment notwithstanding the verdict granted

to defendants in the consolidated cases of Henderson and

[Footnote by this Court] That last ‘“‘dismissal”’ item refer

the dismissals described in the last sentence of n.3

App. 31

Jefferson now on appeal to the Seventh Circuit,’ De-

Robertis and O’Leary are in an odd posture in seeking

to object on that ground. After all, it is in their own in-

terest to have a like ruling made applicable to the entire

class, rather than leaving DeRobertis and O’Leary even

potentially subject to piecemeal claims by individual class

members.

Finally, the dismissal of the few other individual actions

by other judges does not counsel denial of certification.

That judicial response may be suggestive of the appro-

priate disposition of this action after certification, but

that is a quite different question dealt with later in this

opinion.

It seems clear that what really underlies the DeRober-

tis-O’Leary hostility to, rather than a welcoming of, the

current motion lies in the total misperception disclosed

by their Mem. 6-7:

The timeliness issue is further complicated by the fact

that the Statute of Limitations has since run on the

time to file an action based on this incident.

That statement is nothing short of astonishing, given coun-

sel’s citation earlier on the same page to American Pipe

and Construction Co. v. Utah, 414 U.S. 538, 554 (1974).

American Pipe, id. held “‘the commencement of a class

action suspends the applicable statute of limitations as to

all asserted members of the class who would have been

parties had the suit been permitted to continue as a class

action.’’ And if any possible question remained as to the

scope of that holding (because the Court there had dealt

only with putative class members who chose to intervene),

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983)

has dispelled any such question. After explaining in detail

why any such nonliteral reading of American Pipe was

App. 3?

?

appropriate, Crown. Cork & Seal. 46? U.S. at 358-54 but

toned matters up beyond dispute:

We conclude, as did the Court in American Pipe,

that “the commencement of a class action suspends

the applicable statute of limitations as to ali asserted

members of the class who would have been parties

had the suit been permitted to continue as a class

action.”’ 414 U.S., at 554. Once the statute of limita

tions has been tolled, it remains tolled for all mem

bers of the putative class until class certification is

denied. At that point, class members may choose to

file their own suits or to intervene as plaintiffs in

the pending action

In sum, because the Rule 23(b\3) standard as well as

the Rule 23(a) criteria have been satisfied, nothing in

the intervening time lapse or in the present procedural

status of this or other litigation calls for noncertification

of the class. In fact, responsible jurisprudence (that is,

providing the appropriate judicial treatment for the bens

fit of both sides—DeRobertis and O’Leary as well as thx

] Hatt al« aanlle fay } 309 4 ‘ , , 2 +

pDlaintul class) calis for the merits to be dealt with as to

}

all class members and not on a one-by-one basis

Decis O) O? Chee Me rits

Now that the propriety of class certification has bee

resolved, the obvious remaining question is what disposi

tion should be made on the merits of the plaintiff class’

claims. Like several of its colleagues, this Court finds the

rationale for Judge Holderman’s qualified immunity deci

sion a persuasive precedent to follow. It would of courss

be possible to do instead what this Court’s colleague Judge

Prentice Marshall has done in Boclaire v. DeRobertis,

87 C 304: stay this action pending the final resolution on

appeal of Henderson-Jefferson. But two factors counsel

wainst such deferral:

App. 33

1. Because this is now a class rather than an indi-

vidual action, responsible jurisprudence also would

seem best served by putting the case in the posture

for immediate appeal (and, it might be hoped, for con-

solidation with the Henderson-Jefferson appeal if that

is still possible). At a minimum the Court of Appeals

will be made aware of the impact of its decision on

the merits as to the entire plaintiff class.

2. With class counsel here being the same lawyers

who are handling the Henderson-Jefferson appeal, all

efforts at appeal of this case and its possible consoli-

dation with Henderson-Jefferson will be simplified.

Conclusion

This Court determines, for the reasons stated at some

length in this opinion, that this action may and should

be maintained as a class action on behalf of all prisoners

who were confined in Cellhouse B-West of the Stateville

Correctional Center during the four-day period from Jan-

uary 8 through January 11, 1982. Then, for the reasons

stated in Judge Holderman’s August 1, 1988 memoran-

dum opinion and Henderson v. Lane, 82 C 887 and Jeffer-

son v. Lane, 82 C 1263, this Court determines that both

Richard DeRobertis and Michael O’Leary are entitled to

qualified immunity against the liability sought to be im-

posed upon them in the current action. This case, treated

as a class action on behalf of the plaintiff class, is there-

fore dismissed with prejudice.

s/ MILTON I. SHADUR

Milton I. Shadur

United States District Judge

Date: November 18, 1988

App. 34

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Eastern Division

JUDGMENT IN A CIVIL CASE

CASE NUMBER: &b6 C 5094

Warren Lee Harris

Richard DeRobertis, et al

. aii . . | .

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

@ Decision by Court. This action came to trial or hear

ing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that this case,

treated as a class action on behalf of the plaintiff class,

is dismissed with prejudice.

November 18, 1988

Date

s/ GEORGE D. SCHWEMIN

(By) Deputy Clerk

App. 35

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 86 C 9267

WILLIE WILLIAMS,

RICHARD DeROBERTIS and MICHAEL O’LEARY.

MEMORANDUM ORDER

Plaintiff Willie Williams is a member of the class de

scribed in the Complaint in Harris v. DeRobertis, 86 C 5094

and asserts a claim identical to that in Harris. By memo

randum opinion and order issued today in Harris, this

Court has:

l. granted class certification and

2. dismissed the action on qualified immunity grounds

(see Judge Holderman’s August 1, 1988 memorandum

opinion in Henderson v. Lane, 82 C 887 and Jeffer

son v. Lane, 82 C 1263 on the identical issue pre

sented in Harris and here).

Accordingly this action is also dismissed with prejudice.

s/ MILTON I. SHapt

Milton I. Shadur

United States District Ju love

Date: November LS. 1988

App. 36

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Eastern Division

JUDGMENT IN A CIVIL CASE

CASE NUMBER: 8&6 C 9267

Willie Williams

Richard DeRobertis and

Michael O’Leary

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

@ Decision by Court. This action came to trial or hear

ing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that this action

is dismissed with prejudice.

November 18, 1988

Date

i

(By) Deputy Cle rk

s/ GEORGE D. SCHWEM

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

November 1, 1991.

ROBERT HENDERSON and THOMAS JEFFERSON,

RICHARD DeROBERTIS, WARDEN; and

MICHAEL O’LEARY, Assistant Warden,

Defe ndants-A ppe Th eS.

WILLIX WILLIAMS; and WARREN LEE HARRIS,

Individually and on Behalf of all Others Similarly Situated,

Pla ntiffs-A pne llants.

Nos. 88-3407, 88-3430

RICHARD DeROBERTIS and MICHAEL O’LEARY

Defendants Appr lees

Appeal from the United States District Court

Northern District of Illinois, Eastern Divisior

Nos. 82 C 887 and 82 C 1263—James F. Holdermar

Appeal from the United States District Ci irt for the

Northern District of Illinois, Eastern Divisi

86 C 5094 a 86 C 9267—Milton I. Shadur,

ORDER

On consideration of the petition for rehearing with sug-

gestion for rehearing en banc filed in the above-entitled

cause, no judge in active service requested a vote and

all of the judges on the original panel have voted to deny

a rehearing. Accordingly,

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is hereby, DENIED.