# Petition for Writ of Certiorari — DeRobertis v. Henderson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0142%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 503 U.S. 966 ## Text 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 ili 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0142%3A1. Public record. Not legal advice.