Pearson v. Ramos, 98-4110

Citation237 F.3d 881
Decision Date22 January 2001
Docket NumberNo. 98-4110,98-4110
Parties(7th Cir. 2001) Alex Pearson, Plaintiff-Appellee, v. Anthony Ramos, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 6591--Paul E. Plunkett, Judge. [Copyrighted Material Omitted] Before Posner, Coffey, and Ripple, Circuit Judges.

Posner, Circuit Judge.

The plaintiff, a state prisoner, brought suit under 42 U.S.C. sec. 1983 against the superintendent of the disciplinary- segregation unit of the prison, seeking damages for harm that the plaintiff claimed to have suffered as a result of being denied access to the prison yard for exercise for an entire year. A jury awarded the plaintiff $15,000 in compensatory damages and $50,000 in punitive damages; the judge cut the punitive damages to $15,000 and entered judgment for the plaintiff, precipitating this appeal.

Prisoners in the segregation unit are confined to their cells, which are small (9 feet by 12 feet) and, because the cell contains a toilet and sink as well as a bed, cramped. They are allowed out only for trips to the law library or the health-care unit or to receive visitors or take a shower once a week, except that they are also allowed to use the yard for an hour a week, or five hours a week if they have been in segregation for at least 90 consecutive days. However, one of the authorized sanctions for serious infractions of prison rules is denial of yard privileges for 90 days. During a six-month period the plaintiff committed four such infractions and was punished for each one with a 90-day denial of yard privileges, the "sentences" to run consecutively ("stacked," as the parties call it). As a result, he was denied access to the yard for a year. He contends that this denial was a cruel and unusual punishment.

The defendant claims entitlement to immunity, as well as challenging the judgment on the merits. The plaintiff argues that since the defendant could have appealed from the denial of his immunity claim before the trial and judgment, it is too late for him to appeal now. That is wrong. Even when there is a right of interlocutory appeal, a party can wait till the case is over and then appeal, bringing before us all nonmoot interlocutory rulings adverse to him. Jays Foods, L.L.C. v. Chemical & Allied Product Workers Union, Local 20, 208 F.3d 610, 614 (7th Cir. 2000); Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 608 (7th Cir. 1993); Chambers v. Ohio Dept. of Human Services, 145 F.3d 793, 796-97 (6th Cir. 1998). This principle is as applicable to rulings on immunity as to any other interlocutory rulings, SEC v. Quinn, 997 F.2d 287 (7th Cir. 1993); Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999); Ernst v. Child & Youth Services of Chester County, 108 F.3d 486, 492-93 (3d Cir. 1997); Kiser v. Garrett, 67 F.3d 1166, 1169 (5th Cir. 1995); but see Price v. Kramer, 200 F.3d 1237, 1243-44 (9th Cir. 2000), although as we explained in Quinn the defendant who postpones his immunity appeal till after trial forfeits one of the rights that immunity confers, the right not to be tried at all. Certainly from our standpoint, however, it is preferable for a party to file a single appeal at the end of the case rather than a series of interlocutory appeals.

In order that legal doctrine may continue to evolve in common law fashion, the Supreme Court has instructed us to decide the merits of an appeal even if there is a good immunity defense, since a decision on whether the defendant is entitled to immunity requires freezing the law as of the date he acted. Wilson v. Layne, 526 U.S. 603, 609 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998); Siegert v. Gilley, 500 U.S. 226, 232-33 (1991). Whether this rule is absolute may be doubted, for reasons explained in Kalka v. Hawk, 215 F.3d 90, 94-98 (D.C. Cir. 2000), and Horne v. Coughlin, 191 F.3d 244 (2d Cir. 1999), but the reasons are inapplicable here. The issue on the merits is important and should be resolved without further delay. We shall reverse the judgment on the merits, and so moot the issue of immunity. But we cannot forbear to express our surprise at the action of the district court in rejecting the defense of immunity. Since no one could believe that a single 90-day denial of yard privileges would be a cruel and unusual punishment for a serious violation of prison disciplinary rules, the dispositive issue in this case is whether the stacking of such sanctions to the point of depriving a prisoner of an entire year of yard access is cruel and unusual punishment; and as there was no case law when the defendant acted indicating that it is and no tenable argument then or now that stacking so clearly violated the Eighth Amendment that an official in the defendant's position would have had to know that it did, even without any guidance from case law, it is obvious that the immunity defense should have been sustained. Wilson v. Layne, supra, 526 U.S. at 614-15; Anderson v. Creighton, 483 U.S. 635, 639-41 (1987); Burgess v. Lowery, 201 F.3d 942, 944-45 (7th Cir. 2000); Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir. 1995); Eberhardt v. O'Malley, 17 F.3d 1023, 1028 (7th Cir. 1994); McBride v. Village of Michiana, 100 F.3d 457, 460 (6th Cir. 1996); Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir. 1995).

On to the merits. In Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir. 1988), we upheld, as not clearly erroneous, a judge's finding that the Eighth Amendment entitled prisoners held in segregation for 90 days or more to five hours of out-of-cell exercise a week. See also Anderson v. Romero, supra, 72 F.3d at 527-28; Jamison-Bey v. Thieret, 867 F.2d 1046 (7th Cir. 1989); Allen v. Sakai, 40 F.3d 1001, 1004 (9th Cir. 1994). Confinement in segregation is an approximation to solitary confinement, and evidence that this court in Davenport found convincing indicates that long stretches of such confinement can have serious adverse effects on prisoners' psychological well-being. When unrelieved by opportunities for out-of-cell exercise, such confinement could reasonably be described as cruel and, by reference to the current norms of American prisons, unusual. Tighter limits on the right to exercise have been upheld when the period of restriction was shorter than 90 days. E.g., Thomas v. Ramos, 130 F.3d 754, 762-64 (7th Cir. 1997); Caldwell v. Miller, 790 F.2d 589, 600-01 (7th Cir. 1986).

The 90-day threshold for considering a denial of out-of-cell exercise opportunities a possible violation of the cruel and unusual punishments clause is of course arbitrary. But issues of immunity to one side, prison authorities are entitled to some guidance from the courts with respect to the meaning of the vague generalities of the Constitution. We think it a reasonable rule that a denial of yard privileges for no more than 90 days at a stretch is not cruel and unusual punishment. Thomas v. Ramos, supra, 130 F.3d at 763-64; cf. Henderson v. Lane, 979 F.2d 466, 469 (7th Cir. 1992) (per curiam). At least in general; for the cruel and unusual punishments clause has a relative as well as an absolute component. Certain forms of punishment are considered cruel and unusual without regard to the conduct for which they are imposed. Lousiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947); In re Kemmler, 136 U.S. 436, 446-47 (1890); James v. Milwaukee County, 956 F.2d 696, 698-99 (7th Cir. 1992). Even a mass murderer is not to be executed by being drawn and quartered. In addition, however, forms of punishment that are permitted for serious crimes may violate the clause if imposed for trivial ones. Solem v. Helm, 463 U.S. 277 (1983); Rice v. Cooper, 148 F.3d 747, 752 (7th Cir. 1998); Leslie v. Doyle, 125 F.3d 1132, 1135 (7th Cir. 1997); United States v. Saccoccia, 58 F.3d 754, 787-89 (1st Cir. 1995). That is, there is a norm of proportionality (though attenuated in recent decisions of the Supreme Court, notably Harmelin v. Michigan, 501 U.S. 957, 990-94 (1991), we continue to recognize it, Henry v. Page, 223 F.3d 477, 482 (7th Cir. 2000)), and we can imagine the norm's being violated by imposing a 90-day denial of yard privileges for some utterly trivial infraction of the prison's disciplinary rules, though we cannot find any case to support such a suggestion.

The infractions here were not trivial, however. In the first one, the plaintiff and another inmate attacked and beat a guard, injuring him seriously enough to require his hospitalization. In the second, the plaintiff set fire to blankets, coats, and cardboard boxes, producing so much smoke that prisoners with respiratory problems had to be evacuated. Next, the plaintiff spat in the face of a guard who was trying to restrain him after the plaintiff had assaulted another guard. Last, he threw a broom and a bottle of unspecified "bodily fluids" at a medical technician, and the fluids got on the victim's face. We do not understand the plaintiff to be arguing that for each such infraction a 90- day withdrawal of yard privileges would be excessive punishment, even in conjunction with the other sanctions imposed on the plaintiff each time, such as loss of good time. Rather, he asks us to treat this case as if a 360-day denial of yard privileges had been decreed for a course of misconduct embracing the four infractions.

Suppose we do that; we still do not think that, in the circumstances, it could reasonably be found that the punishment was cruel and unusual. All four infractions occurred when the plaintiff was outside his cell. All occurred within the short space of six months. They marked the plaintiff as violent and incorrigible. To allow him to exercise in the yard would have given him additional opportunities to attack prison staff and set fires. Preventing access to the yard was a reasonable method of protecting the staff and...

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