Appendix — Freeman v. Berge (No. 05-1641)

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 05-2820

BERRELL FREEMAN,

Plaintiff-Appellant,

V.

GERALD A. BERGE, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03-C-21-C—Barbara B. Crabb, Chief Judge.

ARGUED NOVEMBER 7, 2005—

DECIDED MARCH 23, 2006

Before POSNER, EASTERBROOK, and WOOD, Circuit

Judges.

POSNER, Circuit Judge. A jury in this suit under 42 U.S.C.

§ 1983 (denial of federal right under color of state law) found

that the defendants, officials at a Wisconsin prison, had in-

flicted crue] and unusual punishment on inmate Freeman by

denying him meals. The jury awarded him $50,000 in com-

pensatory damages, plus punitive damages, incomprehensible

in light of the evidence, aggregating $1.2 million. The judge

granted judgment as a matter of law for the defendants.

Freeman appeals from that judgment, seeking reinstatement

of the jury’s verdict.

2a

Freeman is serving a 58-year sentence in Wisconsin’s

maximum-security prison (nicknamed the “Supermax,”

Scarver v. Litscher, 434 F.3d 972 (7th Cir. 2006); see Jones-

El v. Berge, 374 F.3d 541, 542-43 (7th Cir. 2004)) for a

variety of violent crimes. Inmates in the Supermax are fed

their three meals a day in their cells. The prison’s feeding rule

requires that the prisoner stand in the middle of his cell, with

the lights on, when the meal is delivered and that he be

wearing trousers or gym shorts. If the inmate does not comply

with the rule, the meal is not served him. Freeman wanted to

eat in his underwear, so on a number of occasions over a two-

and-a-half-year period he refused to put on pants or gym

shorts and as a result was not served, and because he skipped

so many meals he lost 45 pounds. The prison also refused to

serve him when he had a sock on his head (which could~be

used as a weapon, depending on what was in it), when his cell

walls were smeared with blood and feces that he refused to

clean, and when he was asleep.

His behavior was disgusting. But he argues that denial of

food is a cruel and unusual punishment for the violation of a

prison rule or norm. It is certainly an unusual form of

punishment nowadays, and in cases in which it inflicts serious

harm on the prisoner it is also cruel. Reed v. McBride, 178

F.3d 849, 853-54 (7th Cir. 1999); Thompson v. Gibson, 289

F.3d 1218, 1222 (10th Cir. 2002); see Farmer v. Brennan,

511 U.S. 825, 832 (1994); Sanville v. McCaughtry, 266 F.3d

724, 733-34 (7th Cir. 2001); Talib v. Gilley, 138 F.3d 211,

214 n. 3 (Sth Cir. 1998). But there is a difference between

using food deprivation as a punishment and establishing a

reasonable condition to the receipt of food. Suppose that

when a guard delivered a food tray to Freeman, Freeman

hurled it at the guard. Freeman would have missed a meal but

it would be a consequence not of punishment but of a

reasonable condition of being fed—that you not throw back

the food in the server's face. In such a case Freeman would

3a

be the author of his deprivation rather than a victim of pun-

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

The same is true here. The pants requirement may not seem

a reasonable condition on receiving food but it is. In the

words of the appellees’ lawyer in his opening statement to the

jury, “There are two primary reasons. Number one, there are

a lot of women security officers working in this facility so

they are entitled to basic privacy. Secondly, there are security

issues. Inmates throw urine, feces, expose themselves, ejacu-

late, and to prevent that from happening to any security

officer, there is a rule that the inmate must be clothed.” The

pants requirement, violation of which was the major cause of

Freeman’s missed meals, imposed a condition that he could

readily have complied with; he offers no excuse for his non-

compliance.

He missed some meals not because of the pants rule but

because of the sock on the head, the blood and feces on the

wall, or his being asleep. The refusal to serve him in the first

of these cases, whether or not authorized or directed by any

rule, cannot be thought unreasonable; the sock posed a poten-

tial threat to the guards. The possibility of contamination of

the food by blood or feces might justify refusal to serve a

meal in the second case, but this is not argued. Unless the

guards had difficulty waking him or were fearful as to how he

might react to being wakened, his being asleep at mealtime

would not be a good reason for not feeding him. But Freeman

failed to show how many of his missed meals were missed for

reasons that cannot be easily related to the refusal to comply

with a reasonable condition on the receipt of food, except that

he testified that he received only one meal a day for two

weeks because he refused to keep his cell clean (at the end of

that time prison employees cleaned it). That deprivation by

itself would not in the circumstances of this case rise to the

level of cruel and unusual punishment.

4a

The reason for distinguishing between food deprivation as

a punishment and food deprivation as a consequence of a

refusal to comply with a condition precedent to being fed is

that if as Freeman argues any deprivation of food is an uncon-

stitutional punishment, a food policy cannot be enforced, at

least against prisoners in Freeman’s situation. When we asked

his lawyer what alternative response to her client’s behavior

would have been effective in getting Freeman to comply with

the food policy, all she could think of was placing him in

segregation (but he already is in segregation—-that is why he

is being served all his meals in his cell), denying him good-

time credits, or depriving him of commissary and other privi-

leges, such as a television set in his cell. Given the length of

his sentence and what is plainly a propensity for obstreperous

behavior, it is unlikely that a denial of good-time credits will

inflict significant disutility on him; and as far as denial of

privileges is concerned, he has been denied privileges, with-

out the denial having deterred him from continuing to violate

the food rule. The logic of his position is that if he refuses any

meal that is not prepared by Charlie Trotter, the prison must

procure his meals from Trotter’s catering service and cast

about for some method unrelated to food of discouraging him

from making such demands. Freeman refuses to take seri-

ously the practical limitations of prison discipline as a means

of maintaining an orderly environment.

A better argument is that while alternative responses to

Freeman’s behavior may have seemed unpromising, food

deprivation turned out not to be very effective either, for it

took more than two years for the deprivation to be effective—

and it is not clear that hunger or the health effects of loss of

weight was what motivated Freeman to start eating again. But

we are pointed to no alternatives that would have been more

efficacious. —

It does not follow from anything we have said, however,

that a prison can allow a prisoner to starve himself to death,

Sa

or even starve himself to the point at which he seriously

impairs his health, which could happen even if his ending

weight was “normal” (imagine a person whose weight falls

from 250 to 150 pounds in a couple of months). The prison

cannot be forced by such tactics to change an otherwise

reasonable rule, Rodriguez v. Briley, supra, 403 F.3d at 953;

Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir. 2001); Talic v.

Gilley, supra, 138 F.3d at 216; In re Caulk, 480 A.2d 93, 96

(N.H. 1984); People ex rel. Illinois Dept. of Corrections v.

Millard, 782 N.E.2d 966, 972 (Ill. App. 2003), but at some

point it may have to force-feed the prisoner to prevent him

from seriously endangering his health.

Two situations can be distinguished. In the first, the pris-

oner is insane, and his insanity causes him to refuse food; the

prison is constitutionally obligated to treat his mental illness,

if necessary by force-feeding him. Sanville v. McCaughitry,

266 F.3d 724, 733-34 (7th Cir. 2001); Comstock v. McCrary,

273 F.3d 693, 703 (6th Cir. 2001). In the second situation,

the prisoner is perfectly sane, but he either wants to commit

suicide (and there are rational suicides) or he is prepared to

risk death from a hunger strike to make a political point. Free

people who are sane have a liberty interest in refusing life-

saving medical treatment, Cruzan v. Director, Missouri Dept.

of Health, 497 U.S. 261, 278-79 (1990); see Washington v.

Glucksberg, 521 U.S. 702, 722 n. 17 (1997), and likewise in

refusing to eat, Blouin ex rel. Estate of Pouliot v. Spitzer, 356

F.3d 348, 359 (2d Cir. 2004); Bouvia v. Superior Court, 225

Cal. Rptr. 297, 300, 305 (App. 1986); see also Washington v.

Glucksberg, supra, 521 U.S. at 723, a method by which some

elderly people commit suicide. Ronald M. Holmes & Stephen

T. Holmes, Suicide: Theory, Practice, and Investigation 59-

60 (2005); Martin Tolchin, “When Long Life Is Too Much:

Suicide Rises Among Elderly,” New York Times, July 19,

1989, p. Al. But either prisoners don’t have such an interest,

or it is easily overridden. /n re Grand Jury Subpoena John

Doe, 150 F.3d 170, 172 (2d Cir. 1998) (per curiam); Martinez

6a

v. Turner, 977 F.2d 421, 423 (8th Cir. 1992); Laurie v.

Senecal, 666 A.2d 806, 809 (R.1. 1995); In re Caulk, supra,

480 A.2d at 96-97; State ex rel. White v. Narick, 292 S.E.2d

54, 58 (W. Va. 1982); McNabb v. Department of Corrections,

112 P.3d 592, 594-95 (Wash. App. 2005); People ex rel.

Dept. of Corrections v. Fort, 815 N.E.2d 1246, 1250-51 (I.

App. 2004); contra, Zant v. Prevatte, 286 S.E.2d 715, 716- 17

(Ga. 1982).

The reasons are practical. (No longer does one hear that

prisoners must not be allowed to evade punishment by killing

themselves and thus “cheating the gallows.”) If prisoners

were allowed to kill themselves, prisons would find it even

more difficult than they do to maintain discipline, because of

the effect of a suicide in agitating the prisoners. Prison offi-

cials who let prisoners starve themselves to death would also

expose themselves to lawsuits by the prisoners’ estates. Reck-

less indifference to the risk of a prisoner’s committing suicide

is a Standard basis for a federal civil rights suit. E.g., Boncher

ex rel. Boncher v. Brown County, 272 F.3d 484 (7th Cir.

2001). The idea behind liability in such cases is that incar-

ceration can place a person under unusual psychological

strain and the jail or prison under a commensurate duty to

prevent the prisoner from giving way to the strain. The

analysis is applicable when suicide takes the form of starving

oneself to death. See Laurie v. Senecal, supra, 666 A.2d at

809; Commonwealth of Pennsylvania, Dept. of Public Welfare

v. Kallinger, 580 A.2d 887, 893 (Commonwealth Ct. 1990).

So at some point in Freeman’s meal-skipping the prison

doctors would have had a duty and certainly a right to step in

and force him to take nourishment. Knowing this, the prison

has a policy of requiring a prisoner who has skipped all his

meals for three consecutive days to be inspected by employ-

ees of the prison’s health service to make sure he isn't

seriously endangering his health. Twice Freeman did not

receive a timely inspection and as a result, on each occasion,

7a

went eight days straight without a meal. But there is no indi-

cation that his life or health was 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 symptoms, such as blurred vision.

But there is no evidence that the defendants knew that he was

endangering his health sufficiently to require drastic interven-

tion. He was visited by nurses who confirmed that he was

taking water and checked his appearance through the window

of his cell, and he was visited by a doctor as well though at

some point he began refusing to see the doctor. No doubt he

would have sued the defendants for battery had they ordered

him force-fed.

Because to an overwhelming degree Freeman’s food dep-

rivation 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.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

tees.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

[Filed May 19, 2005]

Case No. 03-C-0021-C

BERRELL FREEMAN,

Plaintiff,

Vv.

GERALD BERGE, Warden, in his official and individual

capacities; JON LITSCHER; PETER HUIBREGTSE, Deputy

Warden, in his individual capacity; GARY BOUGHTON,

Security Director, in his individual capacity; JOHN SHARPE,

Unit Manager (former) in his individual capacity; and

BRAD Hompe, Unit Manager, in his individual capacity,

Defendants.

AMENDED JUDGMENT IN A CIVIL CASE

This action came for consideration before the court with

DISTRICT JUDGE BARBARA B. CRABB presiding. The

issue have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

that the motion of defendants Gerald Berge, Peter Huibregtse

and Brad Hompe for judgment as a matter of law is

GRANTED and judgment entered December 30, 2004 is

VACATED.

9a

IT IS FURTHER ORDERED AND ADJUDGED that

judgment is entered DISMISSING this case as to all

defendants.

Approved as to form this 18th day of May, 2005.

/s/ Barbara B. Crabb

BARBARA B. CRABB

DISTRICT JUDGE

/s/ Theresa M. Owens May 19, 2005

Theresa M. Owens Date

Clerk of Court

10a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

[Filed May 17, 2005]

03-C-0021-C

BERRELL FREEMAN,

Plaintiff,

v.

GERALD BERGE, Warden, in his official and individual

capacities; PETER HUIBREGTSE, Deputy Warden, in his

individual capacity; GARY BOUGHTON, Security Director, in

his individual capacity; and BRAD HomPE, Unit Manager, in

his individual capacity,

Defendants.

OPINION AND ORDER

In a recent case, the Court of Appeals for the Seventh

Circuit held that the denial of meals to a prisoner is not

punishment within the meaning of the Eighth Amendment if

the denials are a response to the prisoner’s refusal to obey a

valid institutional regulation. Rodriguez v. Briley, 403 F.3d

952, 952-53 (7th Cir. 2005) (“deliberate noncompliance with

a valid rule does not convert the consequences that flow

automatically from that noncompliance into punishment”).

Rodriguez bears directly on the case before the court, in

which plaintiff Berrell Freeman sued prison officials Gerald

Berge, Peter Huibregtse, Gary Boughton and Brad Hompe

pursuant to 42 U.S.C. § 1983 for damages and injunctive

relief. Plaintiff alleged that he had suffered injuries as a result

of defendants’ enforcement of an institution policy under

which inmates who do not wear pants (shorts or trousers),

stand in the middle of their cells and turn on their cell lights

lla

before their meals are delivered are considered to have re-

fused the meals. Plaintiff contended that defendants had vio-

lated his Eighth Amendment protection against cruel and —

unusual punishment by enforcing a prison policy that resulted

in plaintiff's not receiving hundreds of meals over a three to

four year period. In addition to the meal policy claim, plain-

tiff raised a number of other claims about the conditions in

which he was held at the Wisconsin Secure Program Facility,

all of which were dismissed in pretrial rulings.

At trial, plaintiff adduced 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 pants over his

underwear or turn on his light in accordance with the meal

delivery policy, had worn a sock around his head, refused to .

clean his cell or slept through the announcement of the meal.

He missed meals for three days in April 2001; he missed

approximately 242 meals between July 6, 2001 and Novem-

ber 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 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. Plaintiff

testified that as a result of the missed meals, he lost weight,

had headaches, constipation, trouble breathing and walking,

suffered from depression and started hearing and seeing things.

At the end of the liability phase of the trial, the jury found

that plaintiff had been subjected to a serious deprivation of

his basic need for food while he was confined at the Secure

Program Facility between April 23, 2001 and October 12,

2003 and that defendants Gerald Berge, Peter Huibregtse and

Brad Hompe had acted or failed to act with deliberate indif-

12a

ference or reckless disregard of the inbsnane conditions of

confinement complained of by plaintiii. The jury found no

liability as to defendant Gary Boughton. In the damages

phase, the jury found that plaintiff suffered physical injury

from defendants’ action or inaction. The jury was sufficiently

concerned about plaintiff's treatment that it awarded him

$50,000 in compensatory damages and $400,000 in punitive

damages against each of the remaining defendants. Following

the entry of judgment, defendants renewed their motion: for

judgment as a matter of law and moved in the alternative for a

new trial or a remittitur of the compensatory damages in the

amount of $25,000. Plaintiff filed a motion relating to attor-

ney fees. -

Shortly after the post-trial briefing was completed, the

Court of Appeals for the Seventh Circuit decided Rodriguez,

403 F.3d 952. The rule at issue in Rodriguez was one that

required inmates to store their belongings in a storage box

before they left their cells; if they did not do so, they were

not allowed to leave the cell, even for a shower or a meal.

Rodriguez refused to put his belongings into his storage box

with the result that he missed about 75 showers and between

300 and 350 meals and lost 90 pounds over the course of 18

months. The court of appeals held that he was never subjected

to any “punishment”; rather, he punished himself. “As soon

as Rodriguez puts his belongings in the storage box, he can

leave his cell and go to the cafeteria. So, he was not punished,

and we need not decide whether, or how many, skipped meals

constitute a cruel and unusual punishment for violation of a

valid prison regulation.” /d. at 953. The court added that at.

some point, “refusal to eat might turn suicidal and then the

prison would have to intervene. Likewise if noncompliance

with the rule were a product of insanity.” /d. (internal cita-

tions omitted).

Plaintiff suggests that his case is distinguishable from

Rodriguez because Rodriguez never challenged the validity of

13a

the rule requiring him to stow his belongings before leaving

his cell and because the rule had a safety or security purpose.

(It promoted fire safety, facilitated cell searches and “in other

ways as well promote safety and security.” /d. at 952.) Plain-

tiff points out that he was denied meals not only for failing to

wear pants but on one occasion, for failing to clean the blood

and feces he had smeared on the walls of his cell.

Nothing in the court of appeals’ holding suggests that the

court would view the rules at issue in this case as “invalid”

for the purpose of determining whether plaintiff was sub-

jected to punishment for refusing to follow them. The law

gives prisons and their administrators wide latitude with

respect to day-to-day operations. Bell v. Wolfish, 441 US.

520, 547 (1979). The rules at issue in this case could be

justified as designed to decrease incidents of sexual exhibi-

tionism, safety (standing in mid-cell with the lights on pro-

tects the officers who. are setting food trays on the trap, as

does not being able to wear a sock around one’s head to hide

a potential weapon), health and cleanliness.

In Rodriguez, the court of appeals had no reason to decide

whether an inmate might have an actionable Eighth Amend-

ment claim if he could show that he had suffered serious

harm that did not rise to the level of being “suicidal” or to any

other “substantial risk of serious harm” because that issue

was not present in the suit. The consequences of Rodriguez’s

refusal to obey the rule were limited to weight loss (which the

court seemed to think was beneficial to him), fatigue and a

rash. It is likely that the court would view a showing amount-

ing to a substantial risk of serious harm as sufficient to

change the calculus. Although prison officials may legally

deny food to inmates who refuse to comply with institution

rules, they cannot stand by and allow an inmate to bring upon

himself a substantial risk of serious harm to his health or

safety. Furmer v. Brennan, 511 U.S. 825 (1994). As I noted

in the December 17, 2003 order in this case denying defen-

14a

dants’ motion for summary judgment, “It is one thing to

acknowledge that prison officials have a legitimate interest in

enforcing compliance with prison rules. It is quite another to

_ conclude that there are no limitations on the enforcement of

those rules so long as the prisoner always has a choice to

comply.” Dkt. #129 at 16. At some point, intervention is

required to preserve the inmate’s health and life.

In the December 17 order, defendants were denied sum-

mary judgment on the ground that a reasonable jury could

find that plaintiff was subjected to a substantial risk of serious

harm to his health when he was denied food as many as 242

times between July and November 2001. Defendants argued

that the Eighth Amendment did not apply to a case of food

deprivation when the inmate could have received the food if

he had chosen to comply with the rule at issue. In response to

this argument, | noted that it was true that no court had held

that using food as a tool for behavior modification was a

violation of the Eighth Amendment in all circumstances,

although some courts had questioned the penological value of

the practice. In plaintiff's case, however, the evidence that

was undisputed for the purpose of summary judgment showed

that he had been denied food repeatedly for periods lasting

several days or longer. | rejected defendants’ argument to

the extent that they argued that there were no limitations on

the enforcement of compliance with prison rules so long as

the prisoner always has the choice of complying. Such an

approach seemed inconsistent with the case law holding that

prison officials may be liable if they are shown to have been

deliberately indifferent to an inmate’s risk of harming himself

in a suicide attempt, even though the immediate cause of the

injury is the inmate’s own actions. In my view, the question

was whether the inmaie’s nutrition is sufficient to maintain

his health; if it was not, an Eighth Amendment violation

could be made out even if the defendants had denied the

inmate food for violations of rules and not because of malice

or neglect. Williams v. Greifinger, 97 F.3d 699, 705 (2d Cir.

15a

1996) (even when inmate holds “‘the key to his cell,” in the

sense that by agreeing to comply with prison rules he could

have achieved release from segregation; . . . that fact in no

way relaxe[s] the court’s inquiry into the adequacy of

the conditions to which [inmate] was subjected”); see also

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

1083 (Sth Cir. 1991) (holding that prisoner stated cause of

action when he alleged that prison officials had withheld food

from him for long periods of time because he refused to

follow dress regulations for meals; “facially permissible form

of punishment may, for example, through continual use inflict

cruel and unusual punishment”).

ee6

Rodriguez, 403 F.3d 952, does not undermine the view that

at some point, the denial of food to an inmate may violate the

Eighth Amendment even if the denial is the result of the

inmate’s own choice not to follow the rules. To do so, how-

ever, the denial must result in the substantial risk of serious

harm. It is only extreme deprivations that make out an Eighth

Amendment claim. Hudson v. McMillian, 503 U.S. 1, 8-9

(1992) (holding that only “those deprivations denying the

‘minimal civilized measure of life’s necessities’ are suffi-

ciently grave to form the basis of an Eighth Amendment

claim”).

In the course of ruling on the parties’ motions prior to trial,

I understood plaintiff to be raising an “as applied” challenge

to defendants’ policy. For example, in the order denying de-

fendants’ motion for qualified immunity, | stated, “I do not

understand [plaintiff's] second amended complaint to present

a facial challenge to the [meal] policy. Rather, as I read the

complaint, [plaintiff] is alleging that defendants’ implemen-

tation of the policy is unconstitutional because its enforce-

ment has resulted in the denial of hundreds of meals on at

least a semi-regular basis over several years and for more

than a week at a time on two occasions.” Nov. 10, 2004 Op.

& Order, dkt. # 181, at 10. At trial, however, plaintiff based

his case on a facial challenge to the policy of using food to

16a

coerce behavior. His counsel began her opening statement by

saying

This case is about whether the Wisconsin Prison System

can withhold the food from prison inmates as a punish-

ment for not following prison rules or whether that

practice violates the United States Constitution.

In light of the decision in Rodriguez, it is clear that this

facial challenge to the policy is untenable. However, the

outcome would have been the same even if he had continued

to challenge the policy as it was applied to him because he

was unable to show that he had been subjected to a sub-

stantial risk of serious harm. He adduced no evidence that

before October 2003, he had ever been denied more than nine

meals in succession, so as to trigger the institution’s policy of

bringing in a doctor and nurse to assess an inmate’s health

status and he admitted that nurses started visiting him in

October, which is when he missed nine consecutive meals.

He testified that he continued to drink water even when he

missed meals and that he saw nurses during the periods when

he was not receiving every meal. His own expert witness

testified that plaintiff's lack of food could have caused him

headaches, dizziness, muscle weakness, inability to stand for

long periods of time and difficulty breathing and talking but

she did not identify these particular consequences as serious

physical harm. She testified also that so long as plaintiff was

drinking water, he could go without food for several weeks

before experiencing organ failure. She did note one study in

which 36 healthy men in the military were given only half of

their caloric requirements for a six-month period and that two

or three of the men had become psychotic at the end of

the study. In addition, she testified that starvation, or organ

- fatlure, would be the end of a continuum of physical harm

that individuals suffer as a result of lack of food. She agreed

that nothing in plaintiff's medical records showed that he had

come anywhere near the point of organ failure and that she

17a

would not expect to see a significant health risk where an

individual goes three days without eating but continues to

drink liquids. Also, she noted that the institution records

showed that on several occasions a Dr. Maier had ordered a

high caloric, high protein diet for plaintiff when he was losing

weight and that the diet orders were carried out.

One of the institution nurses testified that when plaintiff

did miss more than nine consecutive meals in October 2003,

the institution initiated its hunger strike protocol, under which

nurses began monitoring plaintiff, giving him information

about the risks of not eating and assessing his vital signs. Had

plaintiff continued to refuse to follow the meal service policy,

the nurses would have had a doctor see him and they could

have taken additional steps to assess his condition, such as

weighing him and drawing blood for analysis.

Defendant Hompe testified that institution policy requires

staff to generate an incident report when an inmate misses

nine consecutive meals and give notice to the health services

unit, clinical services, the unit manager and the security direc-

tor. At that point, the health services unit places the inmate on

hunger strike protocol for monitoring and both the sergeant

and the unit manager talk to the inmate to try to find out why

he is refusing meals. A multidisciplinary meeting is held to

discuss the inmate and others with special needs to make sure

that the inmate is being monitored 7d the doctor is assessing

him. In extreme conditions, the inst.tution will notify lawyers

and obtain a court order for forced feeding or hydration.

The trial evidence falls short of establishing that plaintiff's

course of conduct and defendants’ response subjected plain-

tiff to a substantial risk of serious harm. There was no evi-

dence that any of his physical problems amounted to scrious

harm; he missed more than nine consecutive meals on only

one occasion, in October 2003, and he continued to drink

water when he was missing meals. He never reached the point

of organ failure or came close to it. There was no evidence

18a

that he became psychotic or suffered any other serious mental

reaction from his lack of food. Therefore, the jury’s finding of

liability cannot be sustained. Because plaintiff did not prove

he was at risk, he did not prove the first of the two prongs

that are necessary to establish an Eighth Amendment claim: a

substantial risk of serious harm. Without a showing of a

substantial risk, he has no basis on which to argue the second

prong: that defendants were deliberately indifferent or acted

in reckless indifference to the risk. Plaintiffs’ failure to prove

the facts necessary to sustain his Eighth Amendment claim

moots the issue of defendants’ entitlement to qualified immu-

nity and plaintiff's motion relating to attorney fees.

Although the verdict cannot be upheld in light of the court

of appeals’ decision in Rodriguez, 403 F.3d 952, and plain-

tiffs failure to show that the cumulative effect of the meals

he missed put him at substantial risk of serious harm, it would

be unfortunate if the Department of Corrections disregarded

the expression of public opinion that the jury’s verdict repre-

sents. It is evident that the jury found the institution’s policy

of using food to coerce behavior to be inhumane in an institu-

tion in which all inmates are deprived of most forms of

sensory stimulation and many lack the mental or emotional

wherewithal to make intelligent decisions. ORDER IT IS

ORDERED that the motion of defendants Gerald Berge, Peter

Huibregtse and Brad Hompe for judgment as a matter of law

is GRANTED; the judgment entered herein on December 30,

2004 is VACATED and the clerk of court is directed to enter

judgment for all defendants in all respects. FURTHER, IT IS

ORDERED that plaintiff Berreli Freeman's motion relating to

attorney fees is DENIED as moot.

Entered this 16th day of May, 2005.

BY THE COURT:

/s/

BARBARA B. CRABB

District Judge

19a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

[Filed Dec. 1, 2004]

03-C-0021-C

BERRELL FREEMAN,

Plaintiff,

V.

GERALD BERGE, Warden, in his official and individual

capacities; PETER HUIBREGTSE, Deputy Warden, in his

individual capacity; GARY BOUGHTON, Security Director,

in his individual capacity; and BRAD HomPE, Unit Manager

(former), in his individual capacity,

Defendants.

SPECIAL VERDICT LIABILITY

We, the jury, for our special verdict, do find as follows:

Question No. |: Was plaintiff Berrell Freeman subjected

to a serious deprivation of his basic need for food while he

was confined at the Wisconsin Secure Program Facility be-

tween April 23, 2001 and October |2, 2003?

Answer: Yes

(Yes or No)

If you answered “Yes” to Question |, proceed to Question

2. If you answered “No” to Question |, proceed no further.

Question No. 2: Did any one or more of the defendants

act or fail to act with deliberate indifference or reckless disre-

20a

gard of the inhumane conditions of confinement complained

of by plaintiff Freeman?

Answer:

Gerald A. Berge Yes

(Yes or No)

Peter Huibregtse Yes

(Yes or No)

Gary Boughton No

(Yes or No)

Brad Hompe Yes

(Yes or No)

/s/ Vicki McHone

Presiding Juror

Madison, Wisconsin

Dated this | day of December, 2004.

2la

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

[Filed Dec. 1, 2004]

03-C-0021-C

BERRELL FREEMAN,

Plaintiff,

Vv.

GERALD BERGE, Warden, in his official and individual

capacities; PETER HUIBREGTSE, Deputy Warden, in his

individual capacity, GARY BOUGHTON, Security Director,

in his individual capacity; and BRAD HomPE, Unit Manager

(former), in his individual capacity,

Defendants.

SPECIAL VERDICT DAMAGES

We, the jury, for our special verdict, do find as follows:

Question No. |: Did plaintiff Berrell Freeman suffer any

physical injury from the action or inaction of any one or more

of the defendants?

Answer: Yes

(Yes or No)

if you answered “Yes” to Question |, proceed to Question

2. If you answered “No” to Question |, proceed to Question

3.

Question No. 2: What sum of money, if any, would fairly

and reasonably compensate the plaintiff Berrell Freeman for

his injuries?

22a

Answer: $50,000

Answer Question 3 only if you answered “yes” to Question

No. 1.

Question No. 3: For those defendants that you found were

aware of and deliberately indifferent to the inhumane condi-

tions of confinement complained of by plaintiff Berrell

Freeman, what sum of money, if any, should be awarded to

plaintiff in order to punish the defendants for their conduct

and to deter the defendants from engaging in similar conduct

in the future?

Answer:

Gerald A. Berge $ 400,000

Peter Huibregtse $ 400,000

Brad Hompe $400,000

/s/ Vicki McHone

Presiding Juror

Madison, Wisconsin

Dated this | day of December, 2004.

23a

APPENDIX F

JURY INSTRUCTIONS

[Filed Dec. 1, 2004]

Ladies and Gentlemen of the Jury:

Now that you have heard the evidence and the arguments, |

will give you the instructions that will govern your delibera-

tions in the jury room. It is my job to decide what rules of law

apply to the case and to explain those rules to you. It is your

job to follow the rules, even if you disagree with them or

don’t understand the reasons for them. You must follow all of

the rules; you may not follow some and ignore others.

The decision you reach in the jury room must be unani-

mous. In other words, you must all agree on the answer to

each question.

Your deliberations will be secret. You will never have to

explain your verdict to anyone.

If you have formed any idea that | have an opinion about

how the case should be decided, disregard that idea. It is your

job, not mine, to decide the facts of this case.

The case will be submitted to you in the form of a special

verdict consisting of two questions. In answering the ques-

tions, you should consider only the evidence that has been

received at this trial. Do not concern yourselves with whether

your answers will be favorable to one side or another, or with

what the final result of this lawsuit may be.

24a

The Eighth Amendment to the United States Constitution pro-

vides that no cruel and unusual punishment may be inflicted.

Plaintiff Berrell Freeman is an inmate at the Wisconsin

Secure Program Facility. Plaintiff Freeman claims that the

defendants denied him his Eighth Amendment rights by

implementing a policy that resulted in Mr. Freeman’s being

denied meals between April 23, 2001 and October 12, 2003.

The defendants deny that they deprived plaintiff Freeman of

his rights under the Eighth Amendment.

The problems that arise in the day-to-day operation of a cor-

rectional facility are not susceptible to easy solutions. Prison

administrators therefore should be accorded wide-ranging

deference in the adoption and execution of policies and prac-

tices that in their judgment are needed to preserve internal

order and discipline and to maintain institutional security.

However, the Eighth Amendment imposes the duty on prison

officials to provide humane conditions of confinement. Prison

officials must ensure that inmates receive nutritionally ade-

quate food, clothing, shelter and medical care.

Question number | asks whether plaintiff Freeman was sub-

jected to a serious deprivation of his basic need for food

while he was confined at the Wisconsin Secure Program

Facility between April 23, 2001 and October 12, 2003. It is

not enough that the conditions plaintiff Freeman complains of

were restrictive or even harsh; this is part of the penalty that

criminal offenders must pay. To answer the question “Yes,”

you must find that plaintiff was deprived of one of the mini-

mal civilized measure of life’s necessities. The test is an ob-

jective one. In applying it, you should be guided by society’s

contemporary standards of decency.

Question number 2 asks whether the defendants acted or

failed to act with deliberate indifference or reckless disregard

of the conditions of confinement complained of by plaintiff

Freeman. To answer “Yes” as to any defendant, you must

find that the defendant was personally responsible for the

25a

deprivation of nutritionally adequate food, resulting is a sub-

stantial risk of harm to plaintiff. The personal responsibility

requirement is satisfied if the conduct causing the deprivation

occurred at the defendant’s direction or with the defendant’s

knowledge and consent. That is, he must have known about

the conduct and facilitated it, approved it, condoned it, or

turned a blind eye. The personal involvement requirement

may also be satisfied by those responsible for ‘creating

policies, practices and customs that caused the deprivation.

Deliberate indifference is established only if there is actual

knowledge that plaintiff Freeman was not receiving nutrition-

ally adequate food and if the defendants disregarded that fact

by intentionally refusing or failing to take reasonable meas-

ures to deal with the problem. Mere 1-eligence or inad-

vertence does not constitute deliberate indifference. To act

“deliberately” means to act intentionally; that is, knowingly

and voluntarily and not because of mistake or accident.

Acts are reckless when they represent a gross departure from

ordinary care in a situation where a high degree of danger is

apparent. If any one of the defendants was in a position in

which he certainly should have known that his conduct would

violate plaintiff's rights, and proceeded to act in disregard of

that knowledge and of the harm or the risk of harm that would

result to the plaintiff, then he acted with reckless disregard for

the plaintiff's rights.

You have heard evidence that certain witnesses have been

convicted of crimes. Evidence of a witness’s prior conviction

of a crime may be considered by you only insofar as it may

affect the credibility of the witness. You may use that evi-

dence only to help you decide whether to believe that witness

and how much weight to give that witness’s testimony.

The burden of proof rests upon the party contending that the

answer to a question should be “Yes.” This burden is to

satisfy you, to a reasonable certainty, by the preponderance or

26a

greater weight of the credible evidence, that “Yes” should be

the answer.

By the preponderance of the evidence is meant evidence

which when weighed against that opposed to it has more

convincing power. Credible evidence is evidence that is

worthy of belief in the light of reason and common sense.

If, after you have discussed the testimony and all other

evidence that bears upon a particular question, you find that

the evidence is so uncertain or inadequate that you have to

guess what the answer should be, then the party having the

burden of proof as to that question has not met the required

burden of proof. Your answers are not to be based on guess-

work or speculation. They are to be based upon credible

evidence from which you can find the existence of the facts

that the party must prove in order to satisfy the burden of

proof on the question under consideration.

When you go to the jury room to begin considering the evi-

dence in thts case you should first select one of the members

of the jury to act as your presiding juror. This person will

help to guide your discussions in the jury room. Once you are

there, if you need to comimunicate with me, the presiding

juror will send a written message to me. However, don’t tell

me how you stand as to your verdict.

As | have mentioned before, the decision you reach must be

unanimous; you must all agree. When you have reached a

decision, the presiding juror will sign the verdict form, put a

date on it, and all of you will return with the verdict into the

court.