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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

(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

y Sb eS eae Ss” fy Ree eR vitae ten oe PNanems ORE MNCS EA MeO ONEA IT I
vs gim 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

_

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1083%3A1. Public record. Not legal advice.