Petition for Writ of Certiorari — Freeman v. Berge (No. 05-1641)

(1) Supreme Court, U.S.

No. 051641 JUN 21 2006

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

BERRELL FREEMAN,

Petitioner,

V.

GERALD A. BERGE, ef al.,

Respondents,

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID J. HARTH

(Counsel of Record)

SARAH C. WALKENHORST

HELLER EHRMAN LLP

One East Main Street

Suite 201

Madison, WI 53703-5118

(608) 663-7460

Counsel for Petitioner

BERRELL FREEMAN

seni cP eae AB BINA RI A RMON tT EE AMEND EISLER REIN TNL Si REE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the court of appeals erred in determining

that food deprivation resulting from an inmate’s refusal

to follow various prison regulations does not constitute

punishment within the meaning of the Eighth

Amendment, even where the deprivation included at least

two periods lasting eight or more consecutive days?

2. Whether the court of appeals erred by failing to

draw all reasonable inferences in petitioner’s favor in

reviewing the district court’s grant of the prison officials’

post-trial motion for judgment as a matter of law?

3. Whether the court of appeals erred in applying the

objective component of the deliberate indifference test as

set out by this Court?

4. Whether_prison officials may withhold all food

from an inmate under any circumstances and, if so, for

how long?

iii

PARTIES TO THE PROCEEDING

Petitioner is Berrell Freeman.

Respondents are Gerald A. Berge, Peter Huibregtse,

Brad Hompe, Gary Boughton and John Sharpe. '

—_

’ John Sharpe and Gary Boughton were included on the list of appellees in

the caption of this case before the United States Court of Appeals for the

- Seventh Circuit and, as such, are included here as respondents pursuant to

Supreme Court Rule 12.6. However, John Sharpe was voluntarily

- dismissed before trial and the jury did not find Gary Boughton liable.

Petitioner has not sought, and docs not here seck, review of any judgment

relating to Mr. Boughton or Mr. Sharpe.

iV

TABLE OF CONTENTS

QUESTIONS PRESENTED............ ee a ieee i

PARTIES TO THE PROCEEDING ....ssssesecsccsccssesssesssee ii

TABLE OF AUINONITINS... vi

PETITION FOR A WRIT OF CERTIORARI w.sccccccssee

ONIONS MIL OW oe

WN i a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED co.cc iccocscccscoecscscctcecoseconoce I

STATEMENT OF THE CASE. 3

REASONS FOR GRANTING THE PETITION ...ceccecee. 7

. 1. The United States Court Of Appeals For The

Seventh Circuit Decided An Important Federal

Question In A Way That Conflicts With eaten

Cpr SIE FE ROGUE Sia civvcoesdsc ecksiciscetsiontenivediosons 7

A. The Panel’s Determination That There Was No

“Punishment” Conflicts With This Comt’ s Eighth

PCIE PYODOBUIG cicsosvvvkdcoicnccccsdestscdasitetvcss 7

B. The Panel Failed to Follow This Court’s

Precedents Relating to Review of a Grant of a

Judgment as a Matter of Law Overturning a Jury

WII Fachrackicuinasacistndiciantocis diana: 11

Il. The Seventh Circuit’s Decision Conflicts With

The Decisions Of Other United States Courts Of

Appeals On The Same Important Issuc.................... Be

Vv

A. The Seventh Circuit Held Deprivations of

Food Including Periods Lasting Eight

Consecutive Days Are Not “Sufficiently

Serious” to Meet the Objective Component of

Petitioner’s Eighth Amendment Claim................. 17

B. Other Federal Appellate Courts Have, In a

Variety of Circumstances, Applied the

Deliberate Indifference Standard and Found

Allegations of Comparable or’ Lesser

Deprivations Maintainable..................ccccesseeceeeees 18

Os Fe FS OOP Saas cicekesassudosssantiasenaines 18

hOB CN since Sins cenedbassves tospncoes 21

Bs TG BEE CUE fais ectedicsasiaveraseieesstanpermedes 22

4. Other Appellate Courts ........:.00.:.ccececercseee 23

III AF IIE Seiden sitnstenvant He vasentelinakach bs coe ecnueneeeuamreene 25

vi

TABLE OF AUTHORITIES |

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....... 12

Berry v. Brady, 192 F.3d 504 (Sth Cir. 1999)............04.. 20, 21

Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969)............0.. 23

Cooper v. Sheriff, Lubbock County, Texas,

929 F.2d 1078 (Sth Cir. 1991) 0. 18, 19, 20

Dearman v. Woodson,

429 F.2d 1288 (10th Cir. 1970) ue eee 22, 23

Duckworth v. Franzen,

780 F.2d 645 (7th Cir. 1985), cert. denied,

Ps ET cciitienkssacsenscciiebvdgidarnaoien SS

Farmer v. Brennan, 511 U.S. 825 (1994)..............00 8, 11,15

Hope v. Pelzer, $36 U.S. 730 (2002)............ccssssessroreeeeserrees 10

Hutto v. Finney, 437 U.S. 678 (1978)........ccccccsecereecececeees 9, 24

Johnson v. California, 543 U.S. 499 (2005) ..........cceeeceeeees 10

LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993) 0.0.0.0... 24

Moss v. Ward, 450 F. Supp. 591 (W.D.N.Y. 1978) ............ 22

Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002)..........c:cccceeee 21

Reeves v. Sanderson Plumbing Prods., Inc.,

EE AER SFP CO bes eeciriihnisttsiingpecuiaeneiele eaaicelanttie 12

vii

Robles v. Couglin, 725 F.2d 12 (2d Cir. 1983)............... wooed

Rodriguez v. Briley, 403 F.3d 952 (7th Cir. 2005) EARS TN 5

Rust v. Grammer, 858 F.2d 41 (8th Cir. 1988)... 24

Talib v. Gilley, 138 F.3d 211 (Sth Cir. 1998) occ 19, 20

Turner v. Safley, 482 U.S. 78 (1987) ......ccccccccccsssssscecsesesesees 10

Weisgram v. Marley Co., 528 U.S. 440 (2000) ..............0006 12

Williams v. Greifinger, 97 F.3d 699 (2d Cir. 1996) ............ 22

Wilson v. Seiter, 501 U.S. 294 (1991)... eee 8, 9, 15

Statutes and Other Authorites

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vs gim <M ED: | SRD aera sor Mbt on Wake BA RIE Te De N 3

BEET k OEP even csciccisateantintahdbemtigaescctavasdeaniccnivivanios 3

ee a ee 1,3

SpUmenna SE TEI CIES oi crceiess incest ccecs sa dassunsnconicnntriecnschins 7

RES TEE TRIN Fl ce recta cicecicsenanicacictsrcimesenrieciecsacnias ill

SOE, GONE AAV: PURE. FUE cachsrnecsisccinsornisvsetacsovasentenidcsunsd 12

PETITIO.. .OR A WRIT OF CERTIORARI

Petitioner Berreil Freeman respectfully petitions this

Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Seventh

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 441

F.3d 543 (Pet. App. la). The district court’s opinion and

order is reported at 2005 WL 1168311 (Pet. App. 8a).

JURISDICTION

The judgment of the court of appeals was entered on

March 23, 2006. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

AMENDMENT VIII. Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual

punishments inflicted.

42 U.S.C. § 1983: Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding

for redress, except that in any action brought aginst a

2

judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless

a declaratory decree was violated or declaratory relief was

unavailable. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

3

STATEMENT OF THE CASE

Berrell Freeman is a prison inmate who, at all times

during these proceedings, has been incarcerated by and in

the custody of the Wisconsin Department of Corrections

(DOC) at the Wisconsin Secure Program Facility

(“WSPF”) (a facility formerly known as “Supermax”) in

Boscobel, Wisconsin. Freeman brought suit under 42

U.S.C. § 1983 against Gerald Berge, the Warden at

WSPF during the period relevant to this case, Peter

Huibregtse, the Deputy Warden at WSPF, and Brad

Hompe, the Unit Manager responsible for Freeman’s

unit. Pet. App. 10a. Freeman alleged violations of his

Eighth Amendment right to be free from cruel and

unusual punishment. /d. at Ila. The district court had

jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

Although several of Freeman’s initial claims were

dismissed, Freeman was permitted to go to trial on his

claim that defendants had punished him for violations of

various prison rules by withholding his meals for days,

and in some cases, weeks at a time. Pet. App. Ila. At

trial, Freeman presented evidence that he had been

denied meals on hundreds of occasions over a period of

about 27 months because he had refused to put shorts or

trousers over his underwear or turn on his light in

accordance with the prison’s meal delivery policy, had

worn a sock around his head, refused to clean his cell or

slept through announcement of-a meal. /d. Freeman

missed meals for three days in April 2001; he missed

approximately 242 meals between July 6, 2001 and

November 3, 2001: he missed all meals for two

consecutive days in April 2002; he missed meals for at

least eight consecutive days in June through early July

2002: he missed meals for several consecutive days in

February 2003; he missed meals for three consecutive

4

days in March 2003; he received only his breakfast meal

each day from May 18 until June 5, 2003; he missed all

meals for two periods in September 2003, one lasting two

days and one lasting four; and he missed all meals for at

least eight straight days during October 2003. /d.

Freeman testified that, as a result of officials’

withholding his meals, he lost between 40 and 50 pounds.

He began experiencing massive headaches, shortness of

breath, dizziness, muscle weakness, bone pain and

difficulty defecating. Pet. App. lla; Tr. 1 A 61-62, Tr. 1

B 11:1-9. Freeman testified that “[e]verything you taste

gets messed up and stuff starts smelling funny,” and that

the muscle weakness became so acute that he requested

to have his mattress on the floor so that he did not have

to stand up. Tr. 1 A 61:7-10. Freeman also told the jury

that he coughed up blood and began seeing and hearing

things. Tr. | A 61-62.

Freeman testified that he did not refuse his meals; in

all instances, he wanted to eat, but was denied his meal.

Tr. | A 40:18-19. Freeman complained to prison

officials of his situation on a number of occasions, but

his complaints were dismissed or ignored. Tr. 2 A I 1-12,.

Tr. 2 A 14, Tr. 2 A 16-17.

The prison had a “hunger strike” policy requiring that

health services be notified if an inmate missed nine

consecutive meals. Tr. | B 72-73. Although Freeman

testified that he missed meals for at Icast eight

consecutive days in July 2002, there was no evidence that

the prison’s policy was put into action at that time. With

regard to the other eight-consecutive day period, there

was no evidence that anyone saw Freeman until he had

missed at least fourteen consecutive meals and even then,

he was not seen by a doctor and was not provided with

food. Tr. 4B 48.

5

A jury found Berge, Huibregtse and Hompe liable for

their deliberate indifference to a substantia] risk of

serious harm placed upon Mr. Freeman while in their

custody. Pet. App. I la-12a, 19a-20a. The jury awarded

Freeman $50,000 in compensatory damages and

$400,000 in punitive damages against each of the three

defendants. /d. at 12a, 21a-22a.

After trial, Berge, Huibregtse and Hompe renewed

their motion for judgment as a matter of law, pursuant to

Fed. R. Civ. P. 50(b) and moved, in the alternative, for a

new trial or a remittitur of the compensatory damages in

the amount of $25,000. Pet. App. 12a. The district court

granted defendants’ motion, overturning the jury’s

verdict against each of the three defendants on the basis

of the Seventh Circuit’s decision in Rodriguez v. Briley.

403 F.3d 952 (7th Cir. 2005) and because the trial

evidence “ffell] short of establishing that plaintiff's

course of conduct and defendants’ response subjected

plaintiff to a substantial risk of serious harm.” "Pet ‘pp.

17a.’ The court noted that Freeman “never reached the

point of organ failure or came close to it” and “[t]here

? In granting the Rule 50 motion. the district court misconstrued Freeman’s

claim to be, at least in part. a facial challenge to the prison meal rule and.

on that basis. held that judgment as a matter of law was appropriate on the

basis of Rodriguez v. Briley. 403 F.3d 952 (7th Cir. 2005). Pet. App. I6a

(“In light of the decision in Rodriguez, it is clear that this facial challenge

to the policy is untenable.”). However. Freeman's allegations raised only

an as-applied challenge to the WSPF policy, challenging the extent and

duration of the deprivation, which was properly considered and decided by

the jury. Pet. App. 19a-20a, 24a-25a: see also Ir. 1 A 6 (wherein the

district court stated its understanding of the issue before the jury: “The

jury is going to decide whether in this situation, in this set of facts. it was

legal or illegal for the defendants to withhold food. and whether it [the

policy} was constitutional in other cases just isn’t appropriate.~). Tr. 3

30:4-5 (wherein petitioner's counsel argued in closing that “[i]t’s not the

rcasonableness of the rule itself. It's the implementation here.”)

6

was no evidence that he became psychotic or suffered

any other serious mental! reaction from his lack of food”

and that, therefore, the jury’s verdict could not sustained.

Id. at 17a-18a.

The Seventh Circuit affirmed. Judge Posner, writing

for the panel, held that “[b]ecause to an overwhelming

degree Freeman’s food deprivation was self-inflicted,

even if not 100 percent of it was, and the record contains

no evidence that he experienced real suffering, extreme

discomfort, or any _ lasting detrimental health

consequences, the judgment for the defendants must be,

and it is, [affirmed].” Pet. App. 7a.

7

REASONS FOR GRANTING THE PETITION

I. —° The United States Court Of Appeals For The

Seventh Circuit Decided An Important Federal

Question In A Way That Conflicts With

Controlling Decisions Of This Court.

In affirming the district court’s grant of judgment as a

matter of law in favor of the prison officials, the Seventh

Circuit failed to follow this Court’s established

jurisprudence in two respects. First, the court of appeals’

determination that Freeman was not punished within the

meaning of the Eighth Amendment fundamentally

conflicts with this Court’s long line of Eighth

Amendment precedents. Second, the court of appeals

failed to follow this Court’s well-established precedents

relating to a district court’s decision to overturn a jury

verdict by granting a motion for judgment as a matter of

law. Because the Seventh Circuit’s analysis was severely

flawed in both regards, the Court should grant this

petition pursuant to Supreme Court Rule 10(c).

A. The Panel’s Determination That There

Was No “Punishment” Conflicts With

This Court’s Eighth Amendment

Precedents.

The court of appeals focused exclusively on the

question of whether the deprivation of petitioner’s meals

_in and of itself constituted Eighth Amendment

punishment. That analysis ignored the fact that petitioner -

has been subject to Eighth Amendment “punishment”

from the first day he was locked up in a Wisconsin

prison. And a long line of this Court's Eighth

Amendment cases required respondents to provide him

with food and the basic necessities of life during all times

he was subject to that punishment.

8

It is well established that a complete deprivation of

food violates an inmate’s constitutional right to be free of

cruel and unusual punishment. For example, in Farmer

v. Brennan, 511 U.S. 825, 832 (1994), this Court held

that “the Eighth Amendment places restraints on prison

officials,” such as against excessive force, and further

imposes duties—on—these officials, who must

provide humane conditions of confinement;

prison officials must ensure that inmates

receive adequate food, clothing, shelter, and

medical case, and “must take reasonable

measures to guarantee the safety of the

inmates.”

Farmer, 511 U.S. at 832 (1994) (citations omitted)

(emphasis added). Although “[t]he Constitution ‘does

not mandate comfortable prisons,” prison officials are

charged with maintaining conditions that do not “posjfe] a

substantial risk of serious harm” to the inmates in their

custody. /d. at 832, 834.

Similarly, in Wilson vy. Seiter, 501 U.S. 294 (1991),

this Court held that it would be an Eighth Amendment

violation to deny a prisoner an “identifiable human need

such as food.” In Wilson, this Court indicated that the

determination of whether “punishment” has taken place is

built into the determination of subjective intent:

The source of the intent requirement is not the

predilections of this Court, but the Eighth

Amendment itself, which bans only cruel and

unusual punishment. If the pain inflicted ts not

formally meted out as punishment by the statute

or the sentencing judge, some mental element

: 9

must be attributed to the inflicting officer

before it can qualify.’

Id. at 300.

In Hutto v. Finney, this Court evaluated the use of

“grue”—a “substance created by mashing meat, potatoes,

oleo, syrup, vegetables, eggs, and seasoning into a paste

and baking the mixture into a pan.” 437 U.S. 678, 683

(1978). Prisoners on this diet received fewer than 1,000

calories a day. Jd. According to the Court:

A daily allowance of 2,700 calories is

recommended for the average male between 23

and 50. National Academy of Sciences,

Recommended Dietary Allowances, Appendix

(8"" rev. ed. 1974). Prisoners in punitive

isolation are less active than the average

person; but a mature man who spends 12 hours

a day lying down and 12 hours a day simply

sitting or standing consumes approximately

2,000 calories a day.

Hutto, 437 U.S. at 683 n.7. This Court found that “[a]

filthy, overcrowded cell and a diet of ‘grue’ might be

> The Court went on to quote the author of the panel opinion in this case:

As Judge Posner has observed:

“The infliction of punishment is a deliberate act intended to chastise or

deter. This is what the word means today; it is what it meant in the

eighteenth century.... [I]f [a] guard accidentally stepped on [a]

prisoner’s toe and broke it. this would not be punishment in anything

remotely like the accepted meaning of the word, whether we consult

the usage of 1791. or 1868, or 1985." Duckworth v. Franzen, 780 F.2d

645. 652 (CA7 1985). cert. denied, 479 U.S. 816, 107 S. Ct. 71, 93 L.

Ed. 2d 28 (1986).

Wilson v. Seiter, 501 U.S. 294, 300 (1991).

10

tolerable for a few days and intolerably cruel for weeks

or months.” /d. at 686-87.

In Hope v. Pelzer, 536 U.S. 730 (2002), a case in

which this Court held that use of a “hitching post”

violated Eighth Amendment standards, the Court held

that it was established law that an officer’s temporary

denial of water to a prisoner who refused to do his share

of work assigned to a farm squad “should not be viewed

as punishment in the strict sense, but instead as necessary

coercive measures undertaken to obtain compliance with

a reasonable prison rule,” but that “a violation [would]

have occurred if the method of coercion reached a point

of severity such that the recalcitrant prisoner’s health was

at risk.” /d. at 743.

The Seventh Circuit’s determination that petitioner

was not “punished” ignores the fact that petitioner was at

all relevant times being imprisoned by the State of

Wisconsin as punishment for his crimes. This Court’s

Eighth Amendment jurisprudence required the defendant

officials to provide petitioner with food during his

incarceration. Whether the deprivation of petitioner’s

meals did or did not constitute additional punishment

ultimately does not matter under the Court’s precedents.”

* The court of appeals’ focus on the penological justifications for the

prisons meal delivery rules is reminiscent of the Turner test applied by

_ this Court in other constitutional contexts, wherein a prison regulation

claimed to-infringe an inmate’s constitutional rights may be upheld if it is

“reasonably related to legitimate penological interests.” 7urner v. Safley,

482 U.S. 78, 89 (1987). This Court has explicitly stated. however, that

such a test is inapplicable in the Eighth Amendment context. See Johnson

v. California, 543 U.S. 499, SIL (2005) (“[Wle have not used Turner to

evaluate Eighth Amendment claims of cruel and unusual punishment in

prison. We judge violations of that Amendment under the ‘deliberate

indifference’ standard, rather than Turner's ‘reasonably — related’

(footnote continued...)

1]

The Seventh Circuit failed to even acknowledge, let

alone properly apply the Farmer line of cases, instead

choosing to find that unless there is evidence that an

inmate is at death’s door or suicidal, the “keys to the

cupboard” argument controls the analysis. But that sets

the bar far too high. Deprivation of “the minimal

civilized measure of life’s necessities,” which creates a

“substantial risk of serious harm” violates the Eighth

Amendment under this Court’s established precedent.

B. The Panel Failed to Follow This Court’s

Precedents Relating to Review of a

Grant of a Judgment as a Matter of Law

Overturning a Jury Verdict.

The Seventh Circuit failed to follow this Court’s

precedents relating to proper appellate review of the

grant of a motion for judgment as a matter of law

following a jury verdict. Indeed, neither the Seventh

Circuit opinion nor the district court opinion includes

even a passing reference to a standard of review. See

Pet. App. la-7a, 10a-18a. Both the district court and the

court of appeals ignored the high standard required to

overturn a jury’s verdict based on a motion for judgment

as a matter of law under Rule 50 of the Federal Rules of

Civil Procedure and instead chose to reweigh ‘the

evidence put forth at trial to reach their preferred result.

(continued from previous page)

standard.”) (citations omitted). Thus. to the exter’ the Seventh Circuit

applied such a standard to petitioner’s claim, its decision conflicts with the

clear precedent of this Court.

* And so the jury was instructed. Pet. App. 25a To the extent that the

court of appeals based its ruling on a determinatica that the harm suffered

by petitioner was not sufficiently serious, see Part 1B.

12

In Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133 (2000), this Court held that “{uJnder Rule 50, a

court should render judgment as a matter of law when ‘a

party has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable jury

to find for that party on that issue.’” /d. at 149 (citing

Fed. Rule Civ. Proc. 50(a); Weisgram v. Marley Co., 528

U.S. 440, 447-448 (2000)). Although the court is to

review all the record evidence, “the court must draw all

reasonable inferences in favor of the nonmoving party

and it may not make credibility determinations or weigh

the evidence.” Reeves, 530 U.S. at 150 (citations

omitted). Further, this Court has made clear that

determining credibility, weighing evidence, and drawing

legitimate inferences from the facts are the role of the

jury rather than the judge. /d. at 150-51 (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)). The

court is to disregard all evidence favorable to the moving

party that the jury ts not required to believe; “[t}hat is,

the court should give credence to the evidence favoring

the nonmovant as well as that ‘evidence supporting the

moving party that is uncontradicted and unimpeached, at

least to the extent that the evidence comes from

disinterested witnesses.’” /d. at 151 (citations omitted).

Here the Seventh Circuit usurped the jury’s role by

proceeding with its own weighing of the evidence. For

instance, the court of appeals opined that the “record

contains no evidence that [Freeman] experienced real

suffering, extreme discomfort, or any lasting detrimental

health consequences....” Pet. App. 7a. The court stated:

Twice Freeman did not receive a_ timely

inspection and, as a result, on each occasion, —

went eight days straight without a meal. But

there is no indication that his life or health was

13

jeopardized. He lost 45 pounds over 31

months, but since he weighed 195 pounds at the

beginning and is only 5 foot 6 inches tall he

ended up closer to the normal weight for a

person of his height than when he began. Not

that that is a complete defense, as we indicated

earlier. Because of the irregularity of his

eating, he experienced unpleasant :

such as blurred vision.

Pet. App. 6a-7a.

At trial, however, Freeman adduced evidence that he

had missed hundreds of meals between April 2001 and

October 2003 and that on at least two occasions he was

not fed at all for periods exceeding a week. Pet. App.

10a-tla. Freeman testified that he began suffering from

headaches, dizziness, difficulty breathing, difficulty

defecating, and that he coughed up blood. Pet. App. 11a;

Tr. | A 61. He testified that he began hearing and seeing

things. Pet. App. Ila; Tr. 1 A 62:11. Freeman’s medical

expert, Dr. Linda Farley, also testified extensively about

the deleterious effects of not eating and how quickly a

person can be impacted by a lack of nutrition:

[Flood being absolutely essential to our

functioning as an organism, even withholding

food for 24 hours can use up the body, stores of

carbohydrates.

The liver stores carbohydrates, so even

within 24 hours, our carbohydrates are pretty

much used up. And so then you go to the next

24 hours and the body begins to use its reserve

of fat to supply the body’s energy needs. And

then if there’s not much of that or as time goes

on and food is withheld. ... I’m saying if

14

hydration is still going on, as it was with Mr.

Freeman, he was still drinking water, then the

next thing is that the body, when the fat

supplies are used up and the carbohydrate

supplies were pretty much used up, then the

body draws upon the muscles, the protein

elements of the body itself.

And this can cause all kinds of incredibly

injurious things to our body function from

weakness to low blood pressure to a lower

metabolic rate, to other kinds of just symptoms

that, such as were described that Mr. Freeman

experienced, such as headaches, inability to—

He described the inability to stand up and

breathe properly and talk at the same time when

he was without food for a period of time. So

there’s all kinds of massive kinds of ...

deregulation of body functions.

Tr. 2 B 7-8. With regard to petitioner, Dr. Farley

concluded: “Mr. Freeman, in periods of time, was

deprived of adequate caloric intake, and judging by the

weight loss which he suffered, which other people

certainly noticed, it says to me that he was not receiving

adequate nutrition for his size and weight and level of

activity.” Tr. 2 B 34:19-24.

The court of appeals also was of the opinion that

petitioner was not punished. While acknowledging that

denial of food is “certainly an unusual form of

punishment nowadays,” and that “in cases where it

inflicts serious harm on a prisoner it is also cruel,” the

court of appeals discerned a difference “between food

deprivation as a punishment” and “food deprivation as a

consequence of a refusal to comply with a condition

precedent to being fed.” Pet. App. 2a, 4a.

15

As discussed in Part IA, the relevant “punishment”

here was petitioner’s incarceration in a state institution. -

But even if the proper inquiry was whether the extended

deprivation of his meals was constitutional punishment in

and of itself, there is hardly a bright line between

“punishment” and “refusal.” The issue of whether an

inmate was “punished” necessarily depends upon the

circumstances presented, and is inherently a fact question

properly before the jury.°

Petitioner maintained throughout trial that he had

never refused a meal, but that in all instances, the prison

officials had subjected him to punishment for his failure

to follow prison policy. Tr. 1 A 20:6-12, Tr. 1 A 40:18-

19, Tr.2 A 11-12, Tr. 2 A 14, Tr. 2 A 16-17, Tr. 2 A 102,

Tr. 3 30:2-10. The meal delivery policy set out in the

WSPF Inmates’ Handbook requires inmates to stand in

the middle of the cell with the light on and pants on in

order to receive a meal. T. 1 B 43-44. Petitioner was

denied meals many times because he did not have his

pants on as required. Tr. 1 A 40:15-22, Tr. | A 41:1-9,

Tr. 1 A 43:10-44:12, Tr. 1 A 44:18-45:5, Tr. 1 A 50:20-

51:10, Tr. 1 A 51:24-25. Petitioner was also denied his

meals for a variety of other reasons: he testified he was

denied meals because he did not clean his cell, Tr. | A

45:6-16, Tr. 1 A 48:7-16; for wearing a sock around his

head, Tr. 1 A 44:5-6, Tr. 1 A 48:22-49:10, Tr. 1 A 51:16-

* The punishment inquiry relates to the subjective component of the Eighth

Amendment analysis—-the second necessary component—which requires

that officers acted with a “sufficiently culpable state of mind.” Wilson.

501 U.S. at 298. This Court in Farmer indicated that the knowledge

requirement relative to deliberate indifference is a question of fact for the

jury, opining that a factfinder “may conclude that a prison official knew of

a substantial risk from the very fact that the risk was obvious.” /armer.

S51 US. at 842.

16

— 25; for washing his hands instead of being in the middle

of the cell; for standing by the television; or for sleeping

through or not otherwise hearing an announcement of the

meal, Tr. 1 A 54:14-22, Tr. 1 A 55:3-56:2. Throughout

the trial, petitioner urged the jury to find that these

deprivations constituted punishment. Tr. 1 A 16:21-24,

Tr. 1 A 17:9-21, Tr. 1 A 19:15-20:12, Tr. 3 13:13-14:25;

Tr. 3 30:3-15.

Defendants, on the other hand, maintained that they

had not punished petitioner by withholding his food, but

instead, that petitioner had refused his meals by failing to

comply with the rules. Tr. 1 B 53-54, Tr. | B 67:17-25,

Tr. | B 69-70, Tr. 1 B 75:2-16, Tr. 1 B 84-85, Tr. 1 B 91-

93, Tr. 1 B 119-120, Tr. 1 B 124:17-25, Tr. 3 22-25.

Respondent Huibregtse even agreed that the use of food

as punishment is unacceptable from a _ corrections

standpoint. Tr. 2 A 19:1-8.

The court of appeals, by declaring that petitioner had

not been subjected to punishment, simply appropriated

for itself the key factual issue in the case—an issue that

the jury found in petitioner’s favor. The jury was entitled

to find that, despite petitioner’s recalcitrant behavior, the

prison officials’ responsive behavior—to withhold his

meéals for extensive periods of time—was constitutionally

impermissible punishment. Contrary to this Court’s

precedents, the court of appeals substituted itself for the

jury as the finder of fact.

17

il. The Seventh Circuit’s Decision Conflicts With

The Decisions Of Other United States Courts Of

Appeals On The Same Important Issue.

A. The Seventh Circuit Held Deprivations

of Food Including Periods Lasting Eight

Consecutive Days Are Not “Sufficiently

Serious” to Meet the Objective

Component of Petitioner’s Eighth

Amendment Claim.

While acknowledging that Freeman on at least two

occasions missed all meals for at least eight consecutive

days, the Seventh Circuit found that there was no

evidence of sufficiently serious harm to support his

Eighth Amendment claim. After concluding that

Freeman did not suffer punishment within the meaning of

the Eighth Amendment, the court went on to

acknowledge that “[i]t does not follow from anything we

have said ... that a prison can allow a prisoner to starve

himself to death, or even starve himself to the point at

which he seriously impairs his health.” Pet. App. 4a—Sa.

The court of appeals found that “at some point it may

have to force-feed the prisoner to prevent him from

seriously endangering his health.” Pet. App. Sa.

While acknowledging the prison has, at some point, a

responsibility to step in, the Seventh Circuit found that

even the two undisputed deprivations of eight days

straight were insufficient to constitute an Eighth

Amendment violation, as a matter of law. Jd. at 6a—7a.

18

B. Other Federal Appellate Courts Have, In

a Variety of Circumstances, Applied the

Deliberate Indifference Standard and

Found Allegations of Comparable or

Lesser Deprivations Maintainable.

Numerous federal appellate courts outside the Seventh

Circuit have had occasion to review inmate allegations of

food deprivation in various contexts. These courts,

unlike the Seventh Circuit, have found that deprivations

of food, even partial or for shorter durations than those

alleged in the present case, could sustain an Eighth

Amendment claim.

1, The Fifth Circuit.

In an analogous case, the Fifth Circuit held that

officers had no entitlement to qualified immunity and

that the district court should not have dismissed an

inmate’s allegations of food deprivation be vacated.

Cooper v. Sheriff, Lubbock County, Texas, 929 F.2d 1078

(Sth Cir. 1991). The inmate in Cooper alleged that he

was denied meals for thirteen days, twelve of which were _

consecutive. /d. at 1081. ‘The facility at issue had a

policy that “all inmates dress fully for all meals” and that

if an inmate is not fully dréssed and refuses to fully

dress, “*he voluntarily rejects the meal.’” /d. (citations

omitted). The inmate conceded that he refused to dress

fully before meals. /d. The court held that the mere

existence of a regulation “is not an automatic shield

against a civil rights suit.” /d. at 1083. Indeed, although

the court recognized that complaints against enforcement

of regulations that deprive inmates of certain privileges

may, “in the proper circumstances, be dismissed as

frivolous,” the court noted that “[w]hether, ... a

prisoner’s meals constitute a like ‘privilege’ is

questionable.” /d. The court of appeals further found

19

that deprivation of adequate food is a form of corporal

punishment and that, as such, the Eighth Amendment

“imposes limits on prison officials’ power to so deprive a

prisoner.” /d. Based on the findings, the court of

appeals concluded that “Cooper’s assertion that he was

continuously deprived of food presents a set of facts that

may entitle him to relief.” /d.

The Seventh Circuit, in acknowledging _ that

deprivation of food is an unusual punishment and one

that is cruel when it inflicts serious harm on a prisoner,

cited another case from the Fifth Circuit, Za/ib v. Gilley,

138 F.3d 211 (Sth Cir. 1998). The reasoning in Talib,

however, directly contradicts the decision reached by the

Seventh Circuit. In 7a/ib, the Fifth Circuit found that the

circumstances—an inmate missing approximately one out

of every nine meals for failure to follow a prison rule—

did not rise to the level of a constitutional violation. /d.

However, comparing its case to Cooper, the court

recognized that there are limits to the deprivations that

may be imposed in the name of prison discipline, even

where a reasonable rule exists:

The deprivation of food constitutes cruel and

unusual punishment only if it denies a prisoner

the “‘minimal civilized measure of life’s

necessities.’” Whether the deprivation of food

falls below this threshold depends on the

amount and duration of the deprivation. Talib

alleges that he missed about fifty meals in five

months and lost about fifteen pounds. Missing

a mere one out of every nine meals is hardly

more than that missed by many working

citizens over the same period. We are therefore

doubtful that Talib was denied anything close

to a minimal measure of life’s necessities.

20

Our decision in Cooper v. Sheriff, Lubbock

County, Texas, 929 F.2d 1078 (1991) requires

no less. There, Cooper, a prisoner, alleged that

prison officials refused to feed him any food for

twelve consecutive days. Given the clearly

substantial nature of this deprivation, the court

held that “Cooper’s assertion that he was

continuously deprived of food presents a sets of

facts that may entitle him to relief.” Jd. at 1083

(emphasis added). Talib, on the other hand, has

not alleged a continuous and substantial denial

of food, nor does the record support such an

inference. Thus, the unique circumstances

controlling the Cooper case—the complete

deprivation of food over an extended period of

time—are simply not present in this case.

Talib, 138 F.3d at 214 n.3 (internal citations omitted).

in a more recent case out of the Fifth Circuit, the court

applied a similar analysis, again finding that the alleged

deprivation was not sufficiently serious and the case

properly dismissed. Berry v. Brady, 192 F.3d 504 (Sth

Cir. 1999). In Berry, an inmate alleged cruel and unusual

punishment on the basis that he was denied eight meals_

(not, apparently, consecutive) as punishment for his

refusal to shave in accordance with institution policy. /d.

at 506. Even in this context, again analogous to the

present case, the court of appeals found that “([tjo

establish an Eighth Amendment claim, the prisoner must

demonstrate. infer alia, an objective component of

conditions so serious as to deprive him of the minimal

measure of life's necessities, as when denied some basic

human need.” Jd. at 507. Noting that the Constitution

requires that inmates are provided nutritionally adequate

food, the court held that “‘{w]hether the deprivation of

21

food falls below this threshold depends on the amount

and duration of the deprivation.’” /d. (internal citation

omitted). Since the inmate did not allege he was

deprived of a nutritionally adequate diet or that he

suffered any physical harm other than hunger pains, the

court upheld the magistrate judge’s finding that the claim

was frivolous. /d. at 508.

a The Second Circuit.

The Second Circuit reversed a_ district court's

dismissal of an inmate’s complaint that prison officials

violated his Eighth Amendment rights by placing him on

a nutritionally inadequate diet. Phelps v. Kapnolas, 308

F.3d 180 (2d Cir. 2002). The inmate in that case alleged

that he was placed on a “restricted diet” consisting of raw

cabbage and “bread-like loaf that appeared to contain

ground vegetables” for 14 days after being charged with

throwing a Styrofoam bowl of cereal. /d. at 182. The

inmate claimed the restricted dict was nutritionally

inadequate. /d. (citation omitted). Noting that under this

Court’s precedents, “prisoners may not be denied ‘the

minimal civilized measure of life’s necessities,’” id. at

185, and that under the Eighth Amendment prisoners

must not be deprived of their basic human needs,

including food, the court found the inmate’s allegations

that the he was deprived of a nutritionally adequate diet

for fourteen consecutive days were “not as a matter of

law insufficiently serious to meet the objective

requirement.” /d. at 186. The inmate claimed that, as a

result of the inadequate diet, he “lost over thirty pounds,

suffered severe abdominal pain, and suffered severe

emotional distress, which caused or exacerbated mental

illness from which [he] continues to suffer today.” Jd. at

182 (citation omitted).

22

In an earlier case, the Second Circuit found a

complaint by inmates alleging that they were denied

adequate meals by an official who refused to feed them

on 12 days, three of which were consecutive, within a 53

day period and that the food was contaminated by

officials. Robles v. Coughlin, 725 F.2d 12, 13 (2d Cir.

1983). Citing, among other things, a district court

opinion in which deprivation of food for four days was

held unconstitutionally disproportionate punishment for

violation of a disciplinary rule, see Moss v. Ward, 450 F.

Supp. 591, 596-97 (W.D.N.Y. 1978), the Second Circuit

held that the combined allegations of food deprivation

and food contamination were sufficient to withstand

dismissal. Robles, 725 F.2d at 15-16.

Notably, the Second Circuit has explicitly rejected the

position that conduct does not constitute a violation of

the Constitution if an inmate holds the so-called “keys to

the cupboard.” In a non-food related prisoner case, the

Second Circuit held that the court “in no way endorsed

the proposition that a prisoner who ‘holds the keys to his

cell’ may be subjected to treatment which would

otherwise be impermissible under the Eighth

Amendment.” Williams v. Greifinger, 97 F.3d 699, 705

(2d Cir. 1996).

3. The Tenth Circuit.

In one of the earlier cases dealing with food

deprivation, the Tenth Circuit held that it could not

conclude, “as a matter of law, that 50 4 hours of

starvation was not cruel and unusual punishment.”

Dearman v. Woodson, 429 F.2d 1288, 1290 (10th Cir.

1970). In Dearman, the court set aside an order

dismissing the case and remanded the case, holding that,

although there were indications that a “riot atmosphere”

existed during the time period in question, “we think it is

23

beyond dispute that a punishment may be cruel and

unusual when, although applied in- pursuit of legitimate

penal aims, it goes beyond what is necessary to achieve

those aims.” Jd. The court of appeals further described

its analysis of the deprivation, given the purported

disciplinary context:

In Bethea vy. Crouse, 417 F.2d 504 (10th

Cir. 1969), we considered in fair detail the

general principles governing prisoner

complaints of constitutional deprivations. As

we there noted, we are always hesitant to

review matters of prison administration. But

when the care, treatment or discipline of those

confined amount to a clear abuse or caprice on

the part of prison officials, we will give

cognizance to the complaint. The ultimate

issue in the instant controversy poses exactly

that question: Were the acts mere discipline in

pursuit of quelling a prison disturbance or were _

they something more which amounted to a clear

abuse or caprice, resulting in an infringement of

constitutional rights?

Dearman, 429 F.2d at 1290.

4, Other Appellate Courts.

As the decisions of the Seventh, Second, Tenth, and

Fifth Circuits indicate, there is a conflict between the

Seventh Circuit’s holding that a deprivation of hundreds

of meals, including two periods lasting at least eight

consecutive days, was not, as a matter of law,

“sufficiently serious” to meet the objective component of

the deliberate indifference test and the rulings by other

circuits. Indeed, even where other circuits have found

insufficient harm for the case to go forward, the amounts

and/or duration of the deprivations have been nothing

24

close to that of the present case. For example, the Eighth

Circuit found that a sandwich diet, lacking fruits and

vegetables, might violate the Eighth Amendment if

imposed as a regular diet, but that since it was imposed

only for nine-day lockdown period implemented in

response to a violent and disruptive atmosphere in the

prison, it was a “constitutionally permissible response.”

Rust v. Grammer, 858 F.2d 411, 412-14 (8th Cir. 1988).

The Ninth Circuit—in a case involving a uniquely

violent inmate who regularly attempted to attack guards

or other inmates and, further, threw items out of his cell

at guards, including feces, hot water and food—evaluated

the inmate’s complaint that imposition of a nutraloaf diet

for periods up to seven days as a sanction for

misbehavior violated his Eighth Amendment rights.

LeMaire v. Maass, 12 F.3d 1444, 1449-50 (9th Cir.

1993). Acknowledging that the Eighth Amendment

requires that “prisoners receive food that is adequate to

maintain health,” the court found that a Nutraloaf diet

was nutritionally adequate and did not meet the threshold

required by the objective component described in this

Court’s Wilson decision. /d. at 1456. The court found

that Nutraloaf, unlike the “grue” discussed in Hutto y.

Finney, 437 U.S. at 686-87, provided an “excess of

nutritional requirements” and further, unlike the inmates

in Hutto who lost weight, LeMaire actually gained weight

on the diet. LeMaire, 12 F.3d at 1456.

Thus, in cases outside the Seventh Circuit, courts have

acknowledged the deference due to prison officials, but

have not found that a disciplinary context eclipses the

need to evaluate the amount and duration of the

deprivation, just as would be done in any conditions of

confinement case. This Court should grant certiorari to

mend this divide. |

25

CONCLUSION

The scope of an inmate’s right to nutritionally

adequate food is an important question of federal law that

should be addressed by this Court. The need for this

Court to grant certiorari is apparent, given the conflict

between the Seventh Circuit’s decision in this case and

decisions by this Court and other federal appellate courts.

For these reasons, petitioner respectfully requests that

this Court grant this petition for a writ of certiorari.

Respectfully Submitted,

David J. Harth

(Counsel of Record)

Sarah C. Walkenhorst

Heller Ehrman LLP

One East Main Street, Suite 201

Madison, WI 53703-5118

(608) 663-7460

Counsel for Petitioner

BERRELL FREEMAN

_