Johnson v. Prentice

Decision Date25 August 2022
Docket Number18-3535
PartiesMichael Johnson, Plaintiff-Appellant, v. Susan Prentice, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeal from the United States District Court for the Central District of Illinois. No. 16-C-1244 - Colin S. Bruce, Judge.

On Petition for Rehearing and Rehearing En Banc

Before SYKES, Chief Judge, and EASTERBROOK, ROVNER, WOOD, HAMILTON BRENNAN, SCUDDER, ST. EVE, KIRSCH, and JACKSON-AKIWUMI Circuit Judges.

On consideration of the petition for panel rehearing or rehearing en banc filed May 18, 2022, Chief Judge Sykes and Circuit Judges Easterbrook, Brennan, Scudder, and Kirsch voted to deny rehearing en banc. Circuit Judges Rovner, Wood Hamilton, St. Eve, and Jackson-Akiwumi voted to grant rehearing en banc. On the tie vote, the petition for rehearing en banc is DENIED. The petition for panel rehearing is DENIED.

SCUDDER, Circuit Judge, concurring in the denial of the petition for rehearing en banc. Michael Johnson asks the full court to revisit our 2001 decision in Pearson v. Ramos, 237 F.3d 881, and therefore to reconsider the standard for determining the point at which denying a prisoner access to exercise offends the Eighth Amendment. In my view, this case is not the best candidate for en banc review because the record, perhaps owing to Johnson representing himself in the district court, is underdeveloped on points of fact and law essential to proper consideration of such a difficult question. Make no mistake, though: the issue is important and cries out for the full court's consideration in a future case.

What makes the question presented so difficult is that it does not seem amenable to a categorical answer at either bookend. To my eye, Pearson is too broad: it suggests that the proper Eighth Amendment focus is not on the cumulative effect of disciplinary infractions, which can result in a prisoner losing access to exercise for months or years on end, but rather on whether each individual instance of misconduct warranted denying that access for some lesser increment of time. See id. at 886. Pearson, in short, seems to say that the Eighth Amendment is not concerned with the sum total of the deprivation so long as each component is not problematic when measured in isolation. It is hard to square that view with the Supreme Court's observation in Wilson v. Seiter that "[s]ome conditions of confinement may establish an Eighth Amendment violation 'in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise-for example, a low cell temperature at night combined with a failure to issue blankets." 501 U.S. 294, 304 (1991) (emphasis in original).

Nor does the question presented seem amenable to an equally categorical answer at the other end of the spectrum- that the deprivation of access to exercise always violates the Eighth Amendment once some point in time is surpassed. So much would seem to depend on how two primary variables intersect: the safety risk presented by the prisoner and the harm he suffers from being unable to exercise, either on the yard or in a larger cell, over the length of time at issue.

My point is that broad rules (akin to always and never answers) are most often the exception and not the norm on difficult questions of law. At the very least, categorical answers in any direction seem at odds with the established preference of resolving Eighth Amendment challenges to prison conditions on their individual facts with legal guideposts informing the proper inquiry. See Farmer v. Brennan, 511 U.S. 825 (1994).

Getting to the right legal standard requires a case where the facts and law have benefitted from full development and sound adversarial presentation in the district court. At a minimum, it seems a record would benefit from evidence on these points:

• Why and for how long did the prisoner lose access to exercise?
• Was the loss of access just to the prison yard or also to indoor spaces, including oversized cells, that would have allowed some forms of exercise?
• What risks-security or otherwise-did the institution face by affording the prisoner access to exercise? Was the institution unable to manage those risks? Did the answer change over time?
• What was the physical and mental impact of the deprivation on the prisoner and how did it change over time? These points seem especially amenable to being informed by expert testimony on the importance, if not necessity, of exercise to some baseline of physical and mental well-being.
• What institutional policies exist around eliminating access to exercise, and did the deprivation in question reflect implementation of those institutional policies? This question may inform the prospect of municipal liability, especially where it may be difficult to identify any one decision maker responsible for the cumulative effect of the denial of access to exercise. See Monell v. Dep't of Social Servs. of New York, 436 U.S. 658 (1978).

It is also easy to foresee how a deprivation of access to exercise may intersect with other detrimental and equally serious conditions, including prolonged solitary confinement.

This case, then, is by no means the final word. To the contrary, we will await another appeal with a more developed record that will afford the full court an opportunity to answer the important and unresolved question we decline to resolve today.

WOOD Circuit Judge, with whom ROVNER, HAMILTON, ST. EVE and JACKSON-AKIWUMI, Circuit Judges, join, dissenting from the denial of rehearing en banc. In a civilized country, even prisoners cannot be deprived of what the Supreme Court calls the "minimal civilized measure of life's necessities." See Wilson v. Seiter, 501 U.S. 294, 298 (2001) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). However badly behaved a prisoner may be, actions such as starvation, torture, deprivation of essential healthcare, and failure to provide life-sustaining warmth (or cooling), are out of bounds for the prison authorities. The case now before this court focuses on another one of those necessities: exercise. Wilson confirms that exercise is on the list of "minimal" needs that must be addressed. Id. at 304.

The majority's opinion, however, has taken the liberty of deleting "exercise" from the prison's responsibilities. It holds instead that Michael Johnson's right to some minimal level of exercise can be withdrawn from him for a period of more than two years, because (as all agree) Johnson is an obstreperous, violent person. No decision from either the Supreme Court or the lower courts justifies our carving out exercise from the Supreme Court's list. Indeed, the majority's decision puts the Seventh Circuit at odds with many other courts and thus makes this case a suitable candidate for Supreme Court attention. See S.CT. R. 10(a).

As far back as 1979, then-Judge Anthony Kennedy, writing for a panel of the Ninth Circuit, recognized that the total deprivation of exercise "for a period of years" is an impermissible form of punishment under the Constitution. Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979); cf. Davis v. Ayala, 576 U.S. 257, 286-90 (2015) (Kennedy, J., concurring). Today, by my count, the Second, Fourth, Fifth, Eighth, and Ninth Circuits all recognize some minimal opportunity to exercise as one of life's necessities.[1] As best I can determine, only the Eleventh Circuit might be on the other side, but it has not reconsidered this issue since the Supreme Court handed down Wilson, and so may by now have a different position. See Bass v. Perrin, 170 F.3d 1312, 1317 (11th Cir. 1999).

Moreover, a brief review of the facts confirms (contrary to the concerns expressed by the concurring opinion) that there are no quirks in the record of this case that stand in the way of our reaching this issue. See Johnson v. Prentice, 29 F.4th 895 (7th Cir. 2022). Imprisoned since 2007, Johnson was often violent, disruptive, and destructive, engaging in such behaviors as fighting, possessing contraband, damaging property, attacking guards with feces and urine, disobeying orders, and insolence. This behavior earned him a lengthy stint in disciplinary segregation, for which he was transferred to Pontiac in March 2013. Once at Pontiac, he continued to misbehave, and so he accumulated additional conduct violations that led to consecutive periods in disciplinary segregation. This meant "that Johnson spent almost three and a half years-from March 2013 to August 2016-in solitary confinement. (He was also sanctioned with restrictions on his yard access ... .)" Id. at 900.

Normally, inmates subject to segregation are given permission to exercise outside their cells for a few hours each week, id., or, at a bare minimum, they have enough room within their cells to engage in limited exercise. As the majority does, I will refer to the out-of-cell activities as "yard" privileges. I will specify when in-cell activities are relevant. Because this case reaches us from a grant of summary judgment for the defendants, we must accept for present purposes Johnson's account of any disputed facts. That means we must accept the fact that Johnson's cell was too small to permit in-cell exercise-in other words, on this record, it was exercise out of the cell (i.e., in the yard) or nothing.

The key issue before us, on that understanding, is whether there is a limit on how long yard privileges may be revoked entirely when yard time constitutes the prisoner's only meaningful opportunity to exercise. It is hard to avoid the conclusion that there is indeed such a limit, given the recognition in Wilson that "exercise" is a fundamental necessity. The...

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