Gillis v. Litscher

• Decision Date: 14 November 2006
• Docket Number: No. 06-2099.,06-2099.
• Citation: 468 F.3d 488
• Parties: Nathan GILLIS, Plaintiff-Appellant, v. Jon E. LITSCHER, Gerald A. Berge, Warden, Bradley Hompe, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

468 F.3d 488

Nathan GILLIS, Plaintiff-Appellant, v. Jon E. LITSCHER, Gerald A. Berge, Warden, Bradley Hompe, et al., Defendants-Appellees.

No. 06-2099.

United States Court of Appeals, Seventh Circuit.

Argued September 28, 2006.

Decided November 14, 2006.

Pamela R. McGillivray (argued), David C. Bender, McNeil & McGillivray, Madison, WI, for Plaintiff-Appellant.

Adrian Dresel-Velasquez (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before FLAUM, Chief Judge, and RIPPLE and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Stripped naked in a small prison cell with nothing except a toilet; forced to sleep on a concrete floor or slab; denied any human contact; fed nothing but "nutri-loaf"; and given just a modicum of toilet paper—four squares—only a few times. Although this might sound like a stay at a Soviet gulag in the 1930s, it is, according to the claims in this case, Wisconsin in 2002. Whether these conditions are, as a matter of law, only "uncomfortable, but not unconstitutional" as the State contends, is the issue we consider in this case.

Nathan Gillis alleges in this case, brought under 42 U.S.C. § 1983, that his rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated while he was a prisoner at the Wisconsin Secure Program Facility at Boscobel.

The district court granted summary judgment for the defendants and Gillis appeals, raising two important issues. He contends there is a genuine issue of material fact precluding summary judgment both as to whether a Behavioral Modification Program (BMP) imposed on him for an infraction of the rules constituted cruel and unusual punishment in violation of the Eighth Amendment and whether the deprivation he suffered under the BMP was an atypical and significant hardship, thus implicating his due process rights.

The proposed findings of fact the parties filed with the district court tell the following story. The prison in Boscobel, dubbed the "Supermax," is Wisconsin's highest security prison. It is an all-segregation facility, designed to house recalcitrant inmates. At the relevant time, Supermax used a five-level system of inmate classification, with level one being the most restrictive. Inmates, including Gillis, were placed in level one upon their arrival at the prison. In this most restrictive level, inmates are allowed canteen items, hygiene products such as toothpaste, combs, and denture cleaners, legal materials, personal mail, religious items, clothing, and bedding. They are allowed three showers a week.

Gillis arrived at Supermax on February 15, 2002. Within 2 weeks of his arrival he was placed in the BMP for an infraction of what he sees as a relatively minor rule. The rule requires that inmates sleep with their heads toward the back of the cell (and the toilet). Gillis slept with his head toward the front of the cell and on occasion covered his head. He says that the rule was not being uniformly enforced and that some inmates did not follow the rule because it forced them to lie with their heads next to the toilet. The defendants, various prison officers and agents, see it differently. They argue that compliance with the rule is necessary so guards can see an inmate's head through a small window on the cell door. If the guards cannot see the head of the inmate, they cannot determine his condition. Defendants also say that they began to enforce the rule on February 22, 2002, which is about a week before the BMP was imposed on Gillis. The toilets, they say, are "perfectly clean," so that cannot be the reason inmates sleep with their heads in the wrong direction. The security director did not classify this violation as a "major offense," but defendant Bradley Hompe, a unit supervisor, who was the moving force behind Gillis's placement, considered the violation to be major.

Whether "major" or "minor," it was for this infraction that Gillis was placed in the BMP. The BMP is a program designed to force difficult inmates to conform to the rules. The memo Gillis received upon being placed in the program is as follows:

Stage One: You will be placed on stage one for a period of three days. All property will be removed from your cell during this time and you will receive nutri-loaf for meals.

Stage Two: Upon completion of three days in stage one with appropriate behavior the Unit Manager may initiate stage two. Stage two will be in effect for 7 days. In stage two your in cell property will be limited to a segregation smock. You will receive regular meals. In stage two you will receive hygiene items two times per day and will receive showers on regular shower days. Upon completion of day 7 in stage two with appropriate behavior, the Unit Manager may deactivate the plan.

* * Any inappropriate behavior, as described above, will result in being placed on day one of stage one.

* * Security restrictions may also alter this plan and will continue after deactivation of plan.

* * This plan will be in effect for a period of six months and will be activated when you display inappropriate behavior as explained above.

* * The Unit Manager may modify this plan at any time.

The warden's office received a copy of the memo, and Gillis's placement in the BMP was approved by Deputy Warden Peter Huibregtse.

After successful completion of the 3 days at stage one, Gillis would have been eligible to move to stage two, but he was continued in stage one for 2 more days because of his inappropriate behavior. He claims that appropriate behavior would simply have been lying on his bed in compliance with the rules. In his case, it appears that stage one was continued because of very bad, but possibly unrelated behavior—smearing blood and feces around his cell. The defendants say such behavior is related to the rule because guards cannot see through a feces-covered window. After 5 days, Gillis moved on to stage two, where he stayed for 7 more days.

In stage one, Gillis was deprived of nearly all human contact and sensory stimuli. He had no property in his cell and no privileges. He was stark naked and had no mattress or other bedding. He slept naked on the concrete floor or on the concrete slab that is the bed. He tried to sleep next to a heat vent, but the air from the vent was cool. He says he was so cold that he had to walk around his small cell some 14 hours a day trying to stay warm. He claims he developed sores on his feet from pacing and on his body from sleeping on the concrete and that his request for soap to clean his sores was denied. Defendants dispute that Gillis had to walk to keep warm. They say the temperature in the cell was always 70 degrees or above, apparently in their view a temperature at which people sleep comfortably without pajamas or bedding.

Gillis was fed nutri-loaf—basically a ground-up block of food. He was denied mail, visitors, phone privileges, canteen items, writing materials, and use of the law library. There is a dispute of fact over the amount of toilet paper he received. He says he received it on only five occasions during the entire time he was in the BMP, and then it was four squares at a time. The defendants say he received toilet paper on request.

When he was placed in stage two, he was given what is called a sleeveless "seg smock," which is a one-piece item of clothing much like a poncho which covers a person from chest to below the groin. It is worn without underwear. Gillis also began to receive regular meals in styrofoam containers and a toothbrush and toothpaste, but no soap. He was finally allowed to shower 9 days into his ordeal. He was not given bedding or a mattress.

The program had an adverse effect on Gillis's mental stability. He heard voices telling him that "these people were trying to kill" him. He suffered panic attacks, with palpitations, shortness of breath, and a feeling that he was going to die. He became suicidal. He inflicted wounds on his body and wrote the words "help me" in blood on the walls of his cell. When a guard noticed the wounds and called the health services unit, Gillis was transferred to a different cell, where he further injured himself and began smearing feces on his cell walls and on the window. He was placed on clinical observation, but the conditions of his confinement did not change.

Gillis defines the BMP as a punitive measure unrelated to the conduct the officials were trying to correct. In his affidavit, Steve J. Martin, an independent consultant in corrections, says that the "BMP provided officials carte blanche to circumvent, in a wholesale fashion, the provisions of Chapter DOC 303 [of the Wisconsin Administrative Code]. . . ." The defendants, on the other hand, say the BMP was not punitive; it was merely an attempt to convince Gillis to conform his behavior to the rules.

The Eighth Amendment prohibits cruel and unusual punishment and applies to the states through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). To prevail on his Eighth Amendment claim, Gillis must show that the BMP imposed conditions which denied him "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); see also Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). He must also show that the defendants acted with a culpable state of mind:

[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.

Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

To succeed on his Fourteenth Amendment Due Process claim, Gillis must establish that he has a liberty interest in not being placed in the BMP—as it was administered...