Davenport v. DeRobertis

• Decision Date: 23 May 1988
• Docket Number: No. 87-1233,87-1233
• Citation: 844 F.2d 1310
• Parties: James DAVENPORT, et al., Plaintiffs-Appellees, v. Richard DeROBERTIS, Michael O'Leary, and Michael P. Lane, Defendants- Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1310

844 F.2d 1310

James DAVENPORT, et al., Plaintiffs-Appellees, v. Richard DeROBERTIS, Michael O'Leary, and Michael P. Lane,

Defendants- Appellants.

No. 87-1233.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1988.

Decided April 13, 1988.

As Modified May 23, 1988.

John Botner, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

Daniel Harris, Mayer, Brown & Platt, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS, POSNER and CUDAHY, Circuit Judges.

POSNER, Circuit Judge.

This class action on behalf of prisoners confined in the segregation unit at Stateville, the State of Illinois' maximum-security prison, charges that living conditions in the unit are so substandard as to be a form of cruel and unusual punishment within the meaning of the Eighth Amendment, made applicable to the states by interpretation of the Fourteenth Amendment. (The average number of prisoners confined in segregation at Stateville is 225, but this suit is limited to those confined there for more than ninety consecutive days.) A jury agreed, and awarded nominal damages to the class. The district judge set aside the award of damages on the ground that the defendants (Illinois correctional officials) were immune from liability for damages, but he entered an injunction which requires the defendants to provide "every Stateville segregation inmate who has been confined in segregation for 90 or more consecutive days the opportunity to shower at least three times each week and to exercise outside of his cell at least five hours each week." However, if the "inmate violates prison rules during his exercise or shower period, he may be denied the exercise or shower rights provided herein for a reasonable period of time pursuant to regulation approved by this court." 653 F.Supp. 649 (N.D.Ill.1987).

The defendants' challenge to the district court's decision is a narrow one. They do not challenge the jury's finding that the conditions of segregated confinement at Stateville violated the Eighth Amendment. They do not argue that the district judge should have paid no attention to the finding because ultimately he determined that the defendants were immune from liability for damages and set aside the jury's verdict. A public official's immunity in a suit for damages is, normally, immunity from trial, not just from the award of damages. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985); Green v. Carlson, 826 F.2d 647, 651 (7th Cir.1987). If there are factual disputes that cannot be resolved without a trial, then trial there must be, id. at 652; but there was no trial on immunity here; after the trial the judge decided that the defendants were entitled to immunity after all, and set aside the jury's verdict. But the defendants do not argue that, by doing this, he deprived the jury's finding of liability of binding force in the injunction suit. They easily could so argue, as we shall see.

Nor do they argue that the ultimate question in an Eighth Amendment case is a question of law for the judge to decide rather than a question of fact for the jury. The question whether a rule of law has been violated--a question that requires applying the rule to the facts--is normally treated as a question of fact, see, e.g., Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986), not because it is a question of fact (it isn't) but as a way of expressing a decision to leave the answer to the trial judge or jury to make, subject only to limited appellate review. The defendants miss this point in arguing, half-heartedly, that ultimate questions are not questions of fact. They base this argument on a case, no longer authoritative, which had held on the basis of a decision later expressly overruled by the Supreme Court in Pullman-Standard v. Swint, 456 U.S. 273, 285-86, 102 S.Ct. 1781, 1788-89, 72 L.Ed.2d 66 (1982), that the question of discrimination in a Title VII case is one of law rather than of fact. See Stewart v. General Motors Corp., 542 F.2d 445, 449 (7th Cir.1976).

There are exceptions to the principle that ultimate questions are deemed questions of fact, an example being the question of actual malice in defamation cases; many of the exceptions are discussed in Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), and Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505-11, 104 S.Ct. 1949, 1962-65, 80 L.Ed.2d 502 (1984). The defendants do not argue that this case falls within one of the exceptions, though in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Supreme Court had implicitly treated the question whether particular prison conditions amounted to cruel and unusual punishment as one of law, see id. at 347, 352, 101 S.Ct. at 2399-2400, 2402; none of the opinions in that case, however, discusses the standard of review. Several lower-court decisions treat the question as one of fact, but again without discussion. See, e.g., Shrader v. White, 761 F.2d 975, 980 (4th Cir.1985); Blake v. Hall, 668 F.2d 52, 54-55 (1st Cir.1981); cf. Joseph v. Brierton, 739 F.2d 1244, 1246 (7th Cir.1984). We need not try to resolve the issue, given the defendants' failure to raise it.

All that the defendants are arguing is that the most the Constitution guarantees the segregated inmates of Stateville under current conditions in the segregation unit--a vital qualification, as will shortly appear--is one hour of exercise outside the cell, and one shower, per week, and hence that the injunction is too severe. In so arguing the defendants may seem to have overlooked the possibility that the injunction might be intended to be more severe than the Constitution, in order to rectify more effectively the constitutional violations that the jury found and that the defendants no longer contest. See, e.g., Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571-72, 57 L.Ed.2d 522 (1978). But we do not understand the injunction to reflect such a design; it seems rather to reflect the district court's view of the constitutional minimum in the circumstances.

The defendants' challenge to the terms of the injunction may seem inconsistent with their failure to challenge the jury's finding of a constitutional violation. But as they point out, much of the evidence on which that finding was based concerned conditions in F-House, the building that housed the segregation unit until shortly before the trial. Conditions in F-House, an old unit, were very bad. Not only were the cells small (4'9"' by 10'6"'), but they were dirty and roach-infested, toilets were frequently backed up, and food was served to the inmates cold. By the time of trial all the inmates had been moved to a new segregation unit, I-House, and not only is I-House newly built and modern but its cells measure 7'2"' by 13'2"', giving them almost twice the square footage as the cells in F-House (94 square feet versus 50 square feet). There is no evidence of unsanitary conditions or unheated food in I-House; and although the doors to the cells have only narrow slits rather than the barred windows of the doors to F-House's cells, each cell in I-House has an outside window at the back. The windows in the doors of F-House's cells, combined with the circular shape of F-House, made F-House a more sociable habitat for the inmates than I-House, but also and by the same token made the inmates more rowdy and by doing so may have been indirectly responsible for much of the filthy condition of the cells. Rowdy inmates are given to throwing food out of their cells, stopping up toilets, and preventing maintenance staff from entering.

There was testimony, both lay and medical, including testimony by the medical director of the Illinois Department of Corrections, Dr. Shansky, that four to seven hours of exercise outside the cell, and three showers, are the weekly minimum necessary to prevent serious adverse effects on the physical and mental health of inmates confined, as these inmates are, in what realistically is a form of solitary confinement. It is true that each cell contains a sink in which the inmate can wash himself as often as he wants and that the cells in I-House are large enough for the inmate to engage in various forms of exercise, including push-ups, sit-ups, step-ups, and running in place. It is also true that the inmates are allowed to leave their cells for a variety of reasons, such as to use the law library, see visitors, consult with lawyers and other counselors, and visit the medical unit. But these excursions consume in the aggregate only two to three hours per week on average, and the degree of constraint is considerable. A visit to the law library, for example, means being escorted in handcuffs to a caged carrel in the library--not browsing in stacks or working at a library table in a reading room.

Confinement in segregation is usually for a much shorter time than the prisoner's full term. Whereas most Stateville prisoners are violent criminals serving long terms (one-third are serving terms for murder and three-fourths have been convicted of murder at some point in their criminal careers), most prisoners confined to segregation serve only a few months there (at least consecutively). But the plaintiff class is, as noted earlier, limited to prisoners who served more than ninety consecutive days in segregation, and several of the class members spent more than a year there and one spent more than two and a half years there.

Confinement in Stateville's segregation unit involves considerable isolation, sometimes for protracted periods; and the record shows, what anyway seems pretty obvious, that isolating a human being from other human beings year after year or even month after month can cause substantial psychological damage, even if the isolation is not total. Of course, it is highly probable that the experience of being imprisoned inflicts psychological damage whether or not the prisoner is...