•
UNITED TATES DISTRICT COURT FOR THE WES ERN DISTRICT OF WISCONSIN

BERRELL FREEMAN Wisconsin Secure Program Facility 1101 Morrison Drive
P.O. Box 1000 Boscobel, WI 53805-0900,

Plaintiff, v.

Case No. 03-C-0021-C

GERALD BERGE, Warden, in his offi ial and individual capacities, PETER HUIBREGTSE, Deputy Ward n, in his individual capacity, GARY BOUGHTON, Security Direct r, in his individual capacity JOHN SHARPE, Unit Manager (form ), in his individual capacity, Wisconsin Secure Program Facility
1101 Morrison Drive P.O. Box 1000 Boscobel, WI 53805-0900,

BRAD HOMPE, Unit Manager (forme ),in his individual capacity, Racine Correctional Institution 2019 Wisconsin St, PO Box 900 Sturtevant, WI 53177-0900,

Defendants

SECOND A ENDED COMPLAINT

TO: Peggy A. Lautenschlager, Atto ey General Corey F. Finkelmeyer, Assistant Attorney General Wisconsin Department of Justic 17 West Main Street P.O. Box 7857 Madison, WI 53707-7857

Preli

Statement

This is a civil rights action file by Berrell Freeman, a state prisoner, for injunctive

relief and damages under 42 U.S.C. § 1983, alleging that defendants exposed plaintiff to

serious hann to his health through en rcement of a policy that deprived plaintiff of

nutritionally adequate food and that, i so doing, defendants violated plaintiffs right to

be free from cruel and unusual punish ent under the Eighth Amendment to the United

States Constitution.

Plaintiff alleges as follows: Parties
1. PlaintiffBerrell Freema is an adult currently incarcerated at the Wisconsin Secure Program Facility ("WSPF") in Boscobel, Wisconsin. Plaintiff has been in the custody of the Wisconsin Department of Corrections throughout all events described in this complaint.
2. Defendant Gerald Berge is employed by the Wisconsin Department of Corrections as the warden at the WSP and has been so employed at all times relevant to this action. He is sued in his individu I and official capacities.

3. In addition to serving as arden at the WSPF, defendant Berge is also employed by the Wisconsin Departme t of Corrections as the warden at the Prairie du Chien Correctional Institution and has een so employed since July 2003.

4. Warden Berge spends a roximately half of his time at the WSPF.

2

5. Defendant Peter Huibre se is employed by the Wisconsin Department of Corrections as the deputy warden at th WSPF and has been so employed since at least April 2002.
6. Defendant Gary Bought n is employed by the Wisconsin Department of Corrections as the security director at he WSPF since November 2000.
7. Defendant John Shazpe as employed by the Wisconsin Department of Corrections as a unit manager at the SPF until at least sometime in 2002. Upon infOlmation and belief, Mr. Shazpe is resently employed as a captain at the WSPF and has been so employed since leaving hi position as unit manager.
8. Defendant Brad Hompe as employed by the Wisconsin Department of Corrections as a unit manager at the SPF at alI times relevant to this action. Upon information and belief, Mr. Hompe is resently employed as the Deputy Warden at the Racine Correctional Institution.
J risdiction and Venue 9. This court has jurisdicti n over the claims in this action under 28 U.S.C. §§ 1331 and 1343. 10. Venue is proper under 2 U.S.C. § 1391 (b)(l) and (2).
3

actual Back round 11. The WSPF has a policy equiring that, in order to receive meals, inmates must put on pants, turn on their cell Ii ht, and stand in the middle of their cell in full view of officers. 12. The policy does not hav a safety purpose, but rather is purportedly intended to prevent inmates from exp sing themselves to officers. 13. If an inmate fails to foll w this procedure, the inmate mayor may not be given a meal and, per the meal delive policy, the inmate may be considered to have "refused" his meal. 14. An inmate that does not omp1ete1y comply with the policy is sometimes given a meal anyway, depending upon the officers involved with serving the meal. 15. The Canteen section oft e Level Program Handbook includes no requirement that inmates have trouse or shorts on and stand in the middle of their cells with the cell lights on in order to recei e canteen items. 16. Except during delivery f meals and medicine, inmates are not required to tum on their lights, put pants on, and s and in the middle of their cell in order to receive anything.
4

17. For example, officers d liver inmates legal loan materials and canteen items without requiring inmates to tum on t e cell light, put their pants on, or stand in the middle of the cell.
18. Officers are able to tum on cell lights by use of a switch on the outside of the cell.
19. Defendant Berge is resp nsible for the administration and operation of the WSPF and is familiar with the securit policies in place there.
20. Upon information and b lief, defendant Huibregtse takes over the responsibilities ofthe warden when W rden Berge is not at the WSPF.
21. Upon information and b lief, defendant Huibregtse also supervises the unit managers and serves as the reviewing uthority for inmate complaints.
22. Security Director Bough on is responsible for the WSPF's policies and procedures for security. He also signs off on incident reports and conduct reports.
23. Unit Manager Hompe w s, upon information and belief, responsible for Unit Delta, the staff working on that u it, and the inmates on that unit, including Mr. Freeman, during times relevant to this ction.
24. Unit Manager Sharpe wa , upon information and belief, responsible for Unit Foxtrot, the staff working on that nit, and the inmates on that unit, including Mr. Freeman, during times relevant to this ction.
5

25. Officers have denied pI intiffmeals on the basis that he did not comply with the meal delivery policy. Under the meal distribution policy, an inmate's noncompliance with the meal distribu ion policy may be considered a "refusal."
26. Since 2000, the plainti has, on numerous occasions, been deprived of regular and nutritionally adequate me Is for continuous periods of time often extending over days.
27. On April 23, 2001, to A ril 25, 2001, plaintiff was denied all his meals. 28. Between July 6,2001, a d November 3, 2001, plaintiff received only approximately 121 meals and was de ied approximately 242 meals. 29. In January 2002, plainti was denied all meals for three days. 30. In April 2002, plaintiff as denied all meals for two days. 31. Between June 29, 2002, and July 8, 2002, plaintiff was denied most, ifnot all, of his meals, including a period 0 eight consecutive days in which he was denied all meals. 32. In late January 2003, pI intiffwas denied at least four meals over a period offour days. 33. In February 2003, plain iff was denied all meals for at least three consecutive days.
6

34. In March 2003, plaintiff was denied all meals for at least three consecutive days.
35. From May 18,2003, to une 5, 2003, plaintiff was denied at least 32 of 57 meals.
36. Plaintiff was denied all ea1s on September 12-13, 2003, and again was denied most, ifnot all, meals on Septe ber 22-25,2003.
37. Plaintiff was denied foo every day from October 2, 2003, through October 12,2003, including a period of at least eight consecutive days in which he received no meals.
38. Inmates on Levels 1 and 2 are not allowed to purchase any food items available from the canteen.
39. Even if inmates are allo ed to buy food from the canteen, they are limited to five food items.
40. Most of the food items a ailable from the canteen are candy or snack foods such as chips.
41. Warden Berge holds we kly multidisciplinary "Special Needs" meetings during which various officials corne t ether to report on and discuss problems with specific inmates.
7

42. The Warden andlor the eputy Warden attend(s) the Special Needs meetings.
43. Security Director Bough on attends the Special Needs meetings.
44. Representatives ofheaIt services and clinical services attend the Special Needs meetings.
45. Unit managers attend the Special Needs meetings.
46. An inmate missing nume ous meals would typically be something discussed at the Special Needs meetin s.
47. Warden Berge does not r caIJ there ever being a discussion at a Special Needs meeting about Mr. Freeman mis ing meals.
48. Security Director Bought n does not recall there ever being a discussion at a Special Needs meeting about Mr. Fre man missing meals.
49. Dr. Gary Maier, the psyc iatrist at WSPF, does not recall there ever being a discussion at a Special Needs meeting bout Mr. Freeman missing meals.
50. Under Procedure 524.06 n the Security Policies and Procedures Manual in effect at the WSPF since October 10, 2 00,
In the event an inmate denies a eal, refuses staff directives to obtain a meal, or fails to consume the me I provided, a notation shall be made in the Unit multi-purpose log book an the following is to be followed:
8

A. Day2 1. After two conse utive days of an inmate not eating, the Unit Sergeant shall di cuss with the inmate why he is not eating.
B. Day 3 1. After three cons cutive days of not eating, the Unit Sergeant shall complete and in ident report and verbally inform HSU, Clinical staff and the Unit Ma ager. This contact and all information available is to be documente in the Unit log book and on the incident report. 2. HSU staff shall valuate the inmate. The evaluation may occur on the Unit or in H U. HSU will continue to monitor the inmate on a daily basis. 3. Unit staff will c ntinue to monitor the inmate's behavior.
C. Day 4 and after 1. The Unit Sergea t will review the daily meal log and write an Incident Report or each inmate that is continuing to deny/refuse meals.
This procedure also states that "[rJefusal to comply with staff directives to receive a meal shall be documented in the U ·t behavioral log."
51. When plaintiff missed eals, he was not monitored by the health services
staff any more often than usual.
52. The Department of Co ections has a form titled "Not Eating or Drinking
Information" that it provides to inmat s. It states:
Not eating food or drin ing fluids may cause short term or long term illness up to and inc1udi g death.
Not eating or drinking ything may cause death in just a few days. Drinking fluids and not ating is less dangerous, but can lead to serious illness if contin ed for days.
9

:
Body reactions to starvi g include: loss of body fluids, dizziness, Iightheadedness, weakn ss, nausea, vomiting, tiredness, sluggishness, initability weight loss, low blood sugar, slow heart rate and low blood pres reo Starving can result in he rt damage, kidney damage, and death. Depending on the length of starvati n, damage to the heart and kidneys may be permanent. 53. Inmates on Levels 1 an 2 are not allowed to order food items from the canteen.
54. Plaintiff has suffered fr m depression, sleep disturbances, acid reflux, ulceration, nausea, chest pain, muscle ain, and frequent headaches. He has received medication for these conditions. He s metimes has trouble breathing. In addition, plaintiff's vision has deteriorated sinc being incarcerated at the WSPF. He is often forgetful and confused. He has been laced on clinical observation for attempting suicide and for smearing blood, feces and uri e all over his cell.
55. On February 12,2003, dge Barbara B. Crabb entered an order granting plaintiffleave to proceed on his depri ation of food claim.
56. In an order filed June 4, 2003, Judge Crabb allowed plaintiff's case relating to his food deprivation claims to go fi iward after finding that plaintiff had exhausted all administrative remedies.
57. Defendants were aware f conditions that created a serious risk of harm to plaintiffs health, conditions that wer easily preventable, yet they remained deliberately indifferent to this risk.
10

58. As a result of defendants' denial of meals and use of food as punishment, plaintiff has suffered great mental and hysical distress.
Claim for Relief
59. The defendants' enforce ent of a policy that creates serious harm to plaintiffs health by repeatedly denyin him meals constitutes deliberate indifference to plaintiffs basic nutritional needs in vi lation of the Eighth Amendment to the United States Constitution and 42 U.S.C. § 19 3.
Relief Requested WHEREFORE, the plaintiff req ests that the court grant the following relief: A. Issue a declaratory judg ent stating that defendants' enforcement ofa policy that deprived plaintiff of repeate meals over periods of days as a form punishment violated the plaintiff's righ s under the Eighth Amendment to the United States Constitution; and
B. Issue an injunction requi ng that defendants not use the deprivation of food as a punishment; and
c. Award compensatory da ages against defendants for the physical and
emotional injury resulting from the defi ndants' deliberate indifference to plaintiffs nutritional needs; and
D. Award punitive damages gainst defendants; and E. Award plaintiff his attorn y's fees and costs; and
11

F. equitable.

Grant such other and rther relief as this Court may deem just and

Jury Demand The plaintiff demands a trial y JUry.

Dated this 8th day of July, 20 4.

Respectfully submitted

David J. Harth Sarah C. Walkenhorst Heller Ehrman White & McAuliffe LLP 1 East Main Street Suite 201 Madison, WI 53703 (608) 663-7460
Attorneys for Berrell Freeman

12

 
 IN THE UNIT D STATES DISTRICT COURT FOR THE WEST RN DISTRICT OF WISCONSIN

BERRELL FREEMAN,
Plaintiff,
v.
GERALD A. BERGE, PETER HUIB GARY BOUGHTON, JOHN S BRAD HOMPE,

OPINION and ORDER
03-C-0021-C

This is a civil action under 42 .S.c. § 1983 for declaratory, injunctive and monetary relief. Plaintiff, an inmate at the isconsin Secure Program Facility, contends that defendants violated his Eighth Amend ent protection against cruel and unusual punishment by enforcing a prison policy that resul ed in plaintiffs not receiving hundreds of meals over a three to four year period. This case s before the court on defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6). D fendants assert that they are entitled to qualified immunity. Jurisdiction is present. 28 .S.c. § 1331.
For the reasons stated below, will deny defendants' motion. In brief, although

1

Copy of this document has bee

provi ed to'::,.c..l~=---'rlI:oL.j.'

{L

prison officials have an unquestiona Ie interest in enforcing rules and procedures, they also

have obligations under the Eighth endment to provide inmates adequate food and to

protect inmates from self-destructi e behavior. Plaintiffs allegations establish conduct

sufficient to satisfy both the objecti e and subjective aspects of the Eighth Amendment

inquiry. Plaintiff's right to be free from the treatment alleged in his second amended

complaint was clearly established by

Thus, at this stage of the litigation, defendants

are not entitled to qualified immuni

For the sole purpose of decidi g this motion, I find that plaintiff's second amended

complaint alleges the following.

ALLE ATIONS OF FACT Plaintiff is an inmate at th Wisconsin Secure Program Facility in Boscobel, Wisconsin. Defendant Berge is the wa den, responsible for the administration and operation of the facility and familiar with the ecurity policies in place at the facility. Defendant Huibregtse is the deputy warden at e facility. He serves as the warden in defendant Berge's absence, supervises unit rna agers and reviews inmate complaints. Defendant Boughton is employed as the securi y director at the facility; he is responSible for the facility's security policies and signs of on conduct reports and incident reports. Defendant Sharpe served as a unit manager at t e facility at some time in 2002; he now serves as a
2

captain at the facility. Defendant H mpe served as a unit manager at the facility at all times relevant to this action; presently, e is the deputy warden at the Racine Correctional Institution. Defendants Sharpe an Hompe were responsible for the staff working in the units to which plaintiff was assigne at all times relevant to this lawsuit.
The Secure Program Facility equires inmates to put on pants, turn on the light in their cells and stand in the middle f their cells in full view of corrections officers before receiving meals. The policy is desi ned to prevent inmates from exposing themselves to officers. If an inmate fails to comply 'th anyone of these requirements, he may not receive his meal. The inmate's failure to co ply may be deemed a refusal of the meal.
At various times from 2000- 003, plaintiff was denied meals because of his failure to comply with the facility'S policy egarding meal delivery. Plaintiff was denied all meals from April 23-25, 2001. Between J Iy 6, 2001 and November 3, 2001, plaintiff received approximately 121 meals and was de ied approximately 242 meals. Plaintiffwas refused all meals for at least two consecutive da s in January and April 2002. Between June 29, 2002 and July 8, 2002, plaintiff was deni d almost all of his meals; for a period of eight days he received no meals at all. Plaintiff as denied four meals over the course of four days in January 2003 and did not receive an meals for three consecutive days in both February and March 2003. From May 18, 2003 0 June 5, 2003, plaintiff was denied at least 32 of 57 meals. Plaintiff was denied all mea s on September 12-13 and September 22-25, 2003.
3

Finally, plaintiff was denied at least ne meal each day from October 2-12, 2003, and did not receive any meals for eight days d ring that period. When plaintiff missed meals, he did not receive increased attention from the health services staff.
Under Secure Program Facilit procedures, if an inmate refuses or does not consume a meal, "a notation shall be made in he unit's mUlti-purpose log book." If an inmate goes two consecutive days without eating, the unit sergeant is required to speak with the inmate about why he is not eating. After hree days, (1) the unit sergeant must complete an incident report and verbally inform the health services unit, clinical staff and the unit manager; (2) the health services unit must evaluate the inmate; and (3) the unit staff must monitor the inmate's behavior. If an inmate does not eat for at least four consecutive days, the unit sergeant must review the d ily meal log and complete incident reports for each denial or refusal.
Officials at the facility keep tr ck of problems with inmates through weekly "Special Needs" meetings. The warden, dep ty warden, security coordinator and unit managers attend these meetings along with embers of the health services and clinical services departments. An inmate who misses meals continually would be discussed at the "Special Needs" meetings. Defendants Berge nd Boughton do not recall ever discussing the denial of meals to plaintiff at a "Special Ne ds" meeting.
The Department of Correc ons has a form titled "Not Eating or Drinking
4

Information" that it gives inmates t sign. The form states: Not eating food or drinking fl ids may cause short term or long term illness up to and including death. Not eating or drinking anyth·ng may cause death in just a few days. Drinking fluids and not eati g is less dangerous, but can lead to serious illness if continued for days. Body reactions to starving in lude: loss of body fluids, dizziness, lightheadedness, weakness, nausea, vomiting, ti edness, sluggishness, irritability, weight loss, low blood sugar, slow heart rate and 10 blood pressure. Starving can result in heart d mage, kidney damage and death. Depending on the length of starvation, damage 0 the heart and kidneys may be permanent. Plaintiffhas suffered from and eceived medication for depression, sleep disturbances,
frequent headaches, ulceration, nau ea, acid reflux and chest and muscle pain. He has experienced trouble breathing and vi ion deterioration since arriving at the Secure Program Facility. He is often confused and fo getful and has been placed on clinical observation for attempting suicide and for smearing lood, urine and feces over his cell.
DISCUSSION A. ualified Immuni The procedures for deciding a otion to dismiss under Fed. R. Civ. P. 12(b)(6) and the analYSis of a qualified immunit question are different and often in tension. On a
5

motion to dismiss under Rule 12(b (6), a court limits its inquiry to the allegations in the complaint and grants the motion nly if, after accepting those allegations as true, it concludes that the plaintiff could p ove no set of facts in support of his claim that would entitle him to relief. Conle v. Gibs n, 355 U.S. 41,45-46 (1957). In the context of a suit brought under § 1983, a court limits 'ts examination to whether the plaintiff has alleged that a person acting under color of state I deprived him of a federal right. Alvarado v. Litscher, 267 F.3d 648,651 (7th Cir. 2001) citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). The plaintiffs allegations must provo de only a short and plain statement of the claim, Fed. R. Civ. P. 8(a), and need not antici ate and plead around affirmative defenses to avoid dismissal. Iacobs v. City of Chicago 215 F.3d 758, 765 n.3 (7th Cir. 2000) ("the notice pleading requirements of Rule 8 do ot require that a plaintiff anticipate the assertion of qualified immunity by the defendant nd plead allegations that will defeat that immunity. "); cf. Xechem Inc. v. Bristol-M ers S ibb Co., No. 03-4292, slip op. at 4 (7th Cir. June 23, 2004) ("Complaints need not con in any information about defenses and may not be dismissed for that omission.") (emp sis in original).
However, when a defendant b ses his motion to dismiss on qualified immunity, the court's inquiry is different. Qualifie immunity shields government officials performing discretionary functions from moneta liability as long as their conduct "does not violate clearly established statutory or constit tional rights ofwhich a reasonable person would have
6

known." Harlow v. Fitzgerald, 457 .S. 800, 818 (1982). "The threshold inquiry a court must undertake in a qualified immu ity analysis is whether plaintiffs allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736 (2002) (citing Saucier v. Katz, 533 U.S. 194,201 2001). Next, a court must determine "whether the [constitutional] right was clearly esta lished," an inquiry that "must be undertaken in light of the specific context of the case, n t as a broad general proposition." Saucier, 533 U. S. at 201. Although this inquiry su ests that development of the facts of a case is a prerequisite, the Supreme Court ha stated that qualified immunity questions may be presented in a motion to dismiss beca se qualified immunity is '''an entitlement not to stand trial or face the other burdens of Iitiga ion '" and ."an immunityfrom suit''' that is ."effectively lost if a case is erroneously permitted 0 go to triaL'" Saucier, 533 U.S. at 200-01 (quoting Mitchell v. Fors.yth, 472 U.S. 511, 26 (1985) (emphasis in original». The Court of Appeals for the Seventh Circuit has suggested that qualified immunity should be used sparingly as a ground for dismissal u der Rule 12(b)(6). Alyarado, 267 F.3d at 651-52
(quoting Jacobs, 215 F.3d at 775 (Eas rbrook, J., concurring) ("Rule 12(b)(6) is a mismatch
for immunity and almost always a ba ground for dismissaL"». In Jacobs, the court noted that
In some cases, a complaint ay be dismissed under Rule 12(b)(6) on qualified immunity grounds where the p aintiff asserts the violation of a broad constitutional right that had not been artic lated at the time the violation is alleged to have
7

occurred. In that case, while e plaintiff may have stated a claim, it is not one 'upon which relief can be granted' and a court may properly address this purely legal question under Rule 12(b)(6 '" However, in many cases, the existence of qualified immunity will depend on th particular facts of a given case. In those cases, the plaintiff is not required init ally to plead factual allegations that anticipate and overcome a defense of qualifi d immunity. Id. at 765 n.3. With this in min , I turn to the first prong of the qualified immunity analysis: whether plaintiff's allegati ns establish a constitutional violation.
1. Constitutional violation Although "prison conditions ay be harsh and uncomfortable without violating the
Eighth Amendment's prohibition ag 'nst cruel and unusual punishment," Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997 , prison officials have a duty to insure that inmates receive adequate food, clothing, sheIt r and medical care. Sanville v. McCaughtt:y, 266 F.3d 724, 733 (7th Cir. 2001) (citing Fa er v. Brennan, 511 U.S. 825, 832 (1994)). Failure to provide an inmate "nutritionally dequate food" may violate the Eighth Amendment if it continues for an extended period. Antonelli v. Sheehan, 81 F.3d 1422, 1432 (7th Cir. 1996).
In determining whether pia ntiff's allegations state a claim under the Eighth Amendment, the critical question i whether the allegations show that defendants were deliberately indifferent to a substanti I risk of serious harm to the inmate's health or safety.
8

Sanville, 266 F.3d at 733. This in uiry can be broken down into objective and subjective components. The objective comp nent is whether the alleged deprivation is sufficiently serious. The subjective component eals with the defendants' state of mind and whether the defendants were deliberately indiffe ent to plaintiffs plight. Delaney v. DeTella, 256 F.3d 679,683 (7th Cir. 2001).
a. Serious risk of harm A serious risk of harm to a inmate can arise from denial of "minimal civilized
measures of life's necessities." Reed . McBride, 178 F.3d 849, 852 (7th Cir. 1999) (citing Dixon, 114 F.3d at 640). A court m st weigh the amount and duration of any deprivation in determining its seriousness. Reed, 178 F.3d at 853. Several courts have stated that the amount and duration of the depriv tion are inversely proportional such that substantial deprivations of food may violate the ighth Amendment despite relatively short durations. DeSpain v. Uphoff, 264 F.3d 965, 9 4 (10th Cir. 2001) (citing Iohnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000)). In his se ond amended complaint, plaintiff alleges that he has been deprived of hundreds of meals er a three to four year period because of his failure to follow the Secure Program Facility's p ocedure for meal delivery. Plaintiff alleges that he was denied all meals for at least two co secutive days in the follOwing months: April 2001, January 2002, April 2002, June and J ly 2002, January 2003, February 2003, March 2003,
9

September 2003 and October 2003. laintiff alleges that on two occasions, in July 2002 and October 2003, he did not receive a s ngle meal for at least eight consecutive days. During these periods of deprivation, plain 'ff alleges, he was not given any increased medical attention despite suffering a myriad f physical and mental problems.
Defendants argue that the Se ure Program Facility'S meal delivery policy does not violate the Eighth Amendment. I do ot understand petitioner's second amended complaint to present a facial challenge to the olicy. Rather, as I read the complaint, petitioner is alleging that defendants' implemen ation of the policy is unconstitutional because its enforcement has resulted in the deni I 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. Plaintiff does not attack the policy on its face, but rat er its application to him. Considering that plaintiff alleges denial of hundreds of meals ver the course of three to four years, including two periods in which plaintiff did not r ceive one meal for more than a week straight, I am satisfied that plaintiffs allegations ar objectively serious enough to constitute a substantial risk of serious harm to his health. Co are Berry v. Brady, 192 F.3d 504,506-07 (5th Cir. 1999) (ruling that denial of eight m als over seven month period did not support Eighth Amendment claim) and Talib v. Gill ,138 F.3d 211 (5th Cir. 1998) (affirming dismissal of claim alleging denial of fifty meals ver course of five months) with DeMaio v. Mann, 877 F. Supp. 89, 93 (ND.N.Y. 1995) (st ting that deprivation of food and clothing for twelve
10

consecutive days would be "'sufficie t1y serious' to trigger Eighth Amendment concerns") and Moss v. Ward, 450 F. Sup. 591, 596-97 (W.D.N.Y. 1978) (finding Eighth Amendment violation where inmat received no meals for four consecutive days and one meal during each of next three days).
b. Deliberate indifference To satisfy the subjective pr ng, an inmate must allege, at a minimum, "actual
knowledge of impending harm easilY reventable." Delaney, 256 F.3d at 683 (emphasis in original). The Supreme Court has sated that "it is enough that the official acted or failed to act despite his knowledge of a subs ntial risk of serious harm." Farmer, 511 U.S. at 842. In making this determination, I can consider whether "the circumstances suggest that the official being sued had been exposed 0 information concerning the risk and thus 'must have known' about it." Turnerv. Miller, 3 I F.3d 599,603-04 (7th Cir. 2002) (quoting Farmer, 511 U.S. at 842).
Plaintiff alleges that defenda t Berge conducts weekly "Special Needs" meetings at which various prison officials meet 0 discuss problems with specific inmates. Plaintiff alleges that defendants Berge, Huibre e and Boughton attend the meetings, as do the unit managers. (Defendants Sharpe and ompe were the unit managers responsible for the units to which plaintiff was assigned durin the periods relevant in this case.) Although plaintiff
II

alleges that defendants Berge and Bo ghton do not recall any discussion of plaintiffs refusal of meals at a "Special Needs" meeti g, it is possible that defendants Berge and Boughton learned of plaintiffs situation throu h other means. In addition, Secure Program Facility policy requires staff to record each i stance of meal refusal in a unit log book and to notify unit managers verbally if an inmate oes not eat for three straight days. These allegations suggest that defendants had exposur to information concerning the risk to plaintiffs health and they do not assert that they we unaware of it.
Defendants argue that they id not act with deliberate indifference; plaintiff made the decision to refuse his meals by ch osing not to comply with the meal delivery policy. His refusal to comply with the meal deliv ry policy is the only reason why he missed some meals. In a previous order in this case, I dis issed this argument:
To accept defendants' argum nt, I would have to conclude that prison officials may disregard a substantial risk t an inmate's health so long as the reason for doing so is the inmate's failure to com Iy with prison rules. It is one thing to acknowledge that prison officials have a Ie 'timate interest in enforcing compliance with prison rules. It is quite another to co clude that there are no limitations on the enforcement of those rules so long as the isoner always has a choice to comply. Op. & Order, dkt. #129, at 16. Ta n to its extreme (but logical) conclusion, defendants' argument would preclude a finding 0 deliberate indifference even if defendants had allowed plaintiff to starve himself by not c mplying with meal delivery rules. At some point, defendants' interest in enforcing pri on rules must give way to an obligation to prevent an
12

inmate from committing slow suicid . Although it might suffice to leave it to the inmate to decide whether he wishes to com ly with meal delivery rules when the refusals are intermittent or short-term, this han s off attitude cannot continue when the number of meals denied reaches triple digits nd the inmate does not receive any meals for eight consecutive days.
It is settled law in this circuit at prison officials may violate the Eighth Amendment if they are deliberately indifferent t an inmate's risk of harming himself. Matos ex reI. Matos v. O'Sullivan, 335 F.3d 557 ( th Cir. 2003); Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003); Sanville v. McCaughtI)'. 66 F.3d 724 (7th Cir. 2001); Estate of Novack ex reI. Turbin v. County of Wood, 226 F. d 525 (7th Cir. 2000). An official's reason for his behavior is always relevant in deter ining whether he acted with deliberate indifference. Lunsford v. Bennett, 17 F.3d 157 , 1581-82 (7th Cir. 1994). Defendants justify the facility's meal delivery rule not as a s fety measure but instead as a way to prevent inmates from exposing themselves to priso officials. "Although this is a legitimate concern, protecting an officer's sensibilities would not necessarily justify starving a prisoner indefinitely." Op. & Order, dkt. #1 9, at 22.
In sum, I have expressed my iew on two prior occasions in this case that plaintiff's allegations are sufficient to state a cl im under the Eighth Amendment. See Op.& Order, dkt. # 129; Order, dkt. # 159. Althou h prison officials are not constitutionally barred from
13

using food to discipline inmates for n isconduct, see Lemaire v. Maass, 12 F.3d 1444, 145556 (9th Cir. 1993), even recalcitrant prisoners are entitled to the minimal civilized measure of life's necessities. Farmer, 511 .S. at 833-34. Courts in other jurisdictions have concluded that inmates state valid E' ghth Amendment claims under similar circumstances. See~, Phelps v. Kapnolas, 308 F.3 180 (2d Cir. 2002) (holding that inmate stated claim under Eighth Amendment by alleging that he was given nutritionally inadequate food for two weeks); Coo er v. Sheriff Lubbock ount Texas, 929 F.2d 1078 (5th Cir. 1991) (ruling that inmate stated claim under Eigh h Amendment by alleging denial of food for thirteen days); Dearman v. Woodson, 429 F. d 1288 (10th Cir. 1970) (finding valid § 1983 claim where inmate alleged food deprivatio for approximately four days). None of the arguments or authority provided by defenda ts have convinced me that this view is incorrect. Therefore, I must determine wheth the right was clearly established at the time of the violation.
2. Clearly established right The "clearly established" inqu'ry is conducted in the specific factual context of the
case. Saucier, 533 U.S. at 201. In a recent case, the Supreme Court stated that For a constitutional right to b clearly established, its contours 'must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that n official action is protected by qualified immunity
14

-
unless the very action in que tion has previously been held unlawful ... but it is to say that in light of pre-existi g law the unlawfulness must be apparent.' Hope v. Pelzer, 536 U.S. 730, 739 ( 002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Plaintiff has the bur en of showing that the right in question was clearly established at the time of the vi lation and may point to "closely analogous cases demonstrating that the conduct is u lawful or demonstrate that the violation is so obvious that a reasonable state actor would ow that what he is doing violates the Constitution." McGreal v. Ostrov, 368 F.3d 657, 6 3 (7th Cir. 2004) (citing Morrell v. Mock, 270 F.3d 1090, 1100 (7th Cir. 2001)). Plai tiff need not produce a case "on all fours" with the present case to meet his burden, M ntville v. Lewis, 87 F.3d 900, 902 (7th Cir. 1996); indeed, in Hope, the Supreme Cour stated that "officials can still be on notice that their conduct violates established law eve in novel factual circumstances." Hope, 536 U.S. at 741. "The salient question is not wether there is a prior case on all fours with the current claim but whether the state of the la at the relevant time gave the defendants fair warning that their treatment of the plaintif was unconstitutional." McGreal, 368 F.3d at 683 (internal citations omitted). Plaintiff alleges that defenda ts began denying him meals in 2000, so it is at that point that I begin my examination of the law. Before 2000, it was well-settled that inmates have a right under the Eighth Am ndment to receive adequate food and other basic
15

necessities while imprisoned. See Fa mer, 511 U.S. at 832-33 (citing cases); Oliver v. Deen, 77 F.3d 156,159 (7th Cir. 1996); (eenan v. Hall, 83 F.3d 1083,1091 (9th Cir. 1996) ("Adequate food is a basic human n ed protected by the Eighth Amendment"); Woods v. Thieret, 903 F.2d 1080, 1082 (7th :::ir. 1990); Newman v. Alabama, 559 F.2d 283, 286 (5th Cir. 1977), modified sub. nom. Alabama v. Pugh, 438 U.S. 781 (1978) ("It is much too late in the day for states and pri on authorities to think that they may withhold from prisoners the basic necessities of Iif , which include reasonably adequate food, clothing, shelter, sanitation, and necessary mee ical attention. "). In 1991, the Supreme Court framed the inquiry for a food deprivation clai n by stating that "only those deprivations denying 'the minimal civilized measure of life's neFessities' ... are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337,3 '17 (1981 )). In addition to basic necessities oflife, the Court of Appeals for the Seventh Cir uit recognizes an inmate's constitutional right "to be protected from self-destructive tend ncies." Hall v. Ryan, 957 F.2d 402, 406 (7th Cir. 1992) (inmate suicide) (citing Tosenn v. Brierton, 739 F.2d 1244 (7th Cir. 1984)).
Also clearly established prior t( 2000 was the fact that diSciplinary sanctions used by prison officials to enforce internal rul~s and procedures are subject to Eighth Amendment scrutiny. See Helling v. McIGnney. ~09 U.S. 25, 31 (1993) ("It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are
16

subject to scrutiny under the Eighth endment. "). As early as 1968, one circuit court of appeals stated that the protection gainst cruel and unusual punishment sets limits on internal prison discipline. ackson v. Bisho , 404 F.2d 571, 580-81 (8th Cir. 1968) ("Neither do we wish to draw ... an meaningful distinction between punishment by way of sentence statutorily prescribed an punishment imposed for prison disciplinary purposes. It seems to us that the Eighth Amend ent's proscription has application to both. "); see also
Loux v. Rhay. 375 F.2d 55,60 (9th ir. 1967) (Hamley, J., dissenting) ("While the matter
of state prison discipline is not ordin rily subject to examination in federal courts, the rule is otherwise if the treatment of a pris ner amounts to cruel and unusual punishment within the meaning of the Eighth Amendme t"). Courts of appeals, including the Court ofAppeals for the Seventh Circuit, continue t recognize explicitly and implicitly that the Eighth
Amendment is a check on prison of lcials' use of disciplinary measures. 4 , Thomas v.
Ramos, 130 F.3d 754 (7th Cir. 1997) (considering inmate's Eighth Amendment challenge to lack of outdoor exercise while in di ciplinary segregation); White v. Nix, 7 F.3d 120 (8th Cir. 1993) (considering Eighth Ame dment challenge to placement of inmate in screened cell as punishment for altercation wi another inmate); Ort v. White, 813 F.2d 318, 321 (11 th Cir. 1987) ("Eighth amendm nt principles apply not only to judicially imposed punishments, but also when conditio s of confinement constitute the punishment at issue. . . . The limitations imposed by the amendment thus provide the proper framework for
17

evaluating challenges to various sch mes of prison discipline. "); Madyun v. Franzen, 704 F.2d 954,960 (7th Cir. 1983) ("W have not hesitated to hold in appropriate cases that seriously disproportionate punishm nts meted out by state prison officials may violate the Eighth Amendment.").
Within this circuit, the parti s point to Reed v. McBride, 178 F.3d 849 (7th Cir. 1999), a case in which an inmate fil d suit, alleging that he had been deprived of meals for three to five days at a time on severa occasions. He did not receive meals when he did not have his identification badge at t e time they were served and he did not have his identification badge on a number 0 occasions because he was not allowed to retrieve it whenever he returned to the facility fter receiving medical treatment at a hospital. Id. at 851. The court noted that it had" ever addressed the question of whether depriving a prisoner of food for any period of ti e violates the Eighth Amendment." Id. at 853. The court began its analysis by citing ilson v. Seiter, 501 U.S. 294 (1991), in which the Supreme Court stated "in dicta that 't would be an Eighth Amendment violation to deny a prisoner an 'identifiable human ne d such as food.'" Reed, 178 F.3d at 853 (quoting Wilson, 501 U.S. at 304). Next, the ourt cited three cases in which other circuit courts of appeal had analyzed food deprivation laims and either found Eighth Amendment violations or concluded that the inmate's alleg tions stated a claim under the Eighth Amendment. Reed, 178 F.3d at 853. The court eld that a food deprivation claim could satisfy the
18

objective component of the Eighth endment analysis depending on the "amount and
duration of the deprivation." rd. oting that the inmate in the case was ill prior to the
deprivations and the absence of any' extraordinary or extenuating circumstances," the court concluded that the inmate's allegati ns were sufficient to avoid dismissal. Id. at 853-54.
Reed appears to be the only case in which the Court of Appeals for the Seventh Circuit has considered an Eighth Am ndment claim for food deprivation and its holding does not clearly establish the unconstituti nality of defendants' conduct in this case. Moreover, Reed is not "on all fours" with the resent case because it does not appear that food was withheld to discipline voluntary in ate conduct or to compel a change in conduct. Id. at 851 (noting that inmate was not all wed to retrieve identification badge needed to receive meals). In the absence of controlling authority in this circuit, I must look to decisions from other circuits that establish a clear rend with respect to the issue. Donovan v. City of Milwaukee, 17 F.3d 944, 952 (7th ir. 1994).
Cases dealing with the use of f od deprivation as a diSciplinary measure indicate that there are limits on the ability of priso officials to withhold food because of inmate conduct. For example, in Moss v. Ward, 450 . Supp. 951 (W.D.N.Y. 1978), an inmate alleged that he was deprived of food for four day because he did not follow a rule requiring inmates to turn in all oftheir utensils from their st meal before they received their next meal. The rule was designed to prevent prisoners fr m using utensils to collect human waste to throw at
19

prison guards. The inmate refused t turn in a plastic cup, claiming that he needed it for his dentures. The court granted summ ry judgment to the inmate on his Eighth Amendment claim, stating that "prison officials cannot impose such severe sanctions for breaking a disciplinary rule ... on prisoners wh n there is no showing that the prisoner is engaging in the type of conduct the rule is desig ed to prevent. Id. at 596. (I note that neither party presented evidence in conjunction ·th this motion concerning whether plaintiff exposed himself to prison officials at meal delivery times.) The court stated further that the "punishment was grossly dispropo ionate to the offense and went beyond what was necessary to achieve the state's goals.' Id. at 597. See also Cunningham v. Tones, 567 F.2d 653 (6th Cir. 1977) (remanding for further factual development inmate's Eighth Amendment challenge to "slow sta tion diet" consisting of total deprivation of food for four days and one meal every third d y for several weeks thereafter imposed as punishment for attempted escape).
A similar policy was at issue in Williams v. Coughlin, 875 F. Supp. 1004 (W.D.N.Y. 1995). In Williams, an inmate all ged that he had been denied food for two days in violation of the Eighth Amendment b cause he did not turn over utensils. The court refused to grant summary judgment to the prison officials, relying on Moss and several other decisions. Id. at 10 11-13 (citing Rob es v. Co hli, 725 F.2d 12 (2d Cir. 1983) (refusing to dismiss complaint alleging food de rivation for twelve days); Dearman v. Woodson, 429
20

F.2d 1288 (10th Cir. 1970); Coo e v. Sheriff LubbockCount Texas, 929 F.2d 1078 (5th Cir. 1991); Hodge v. Ruperto, 739 . Supp. 873 (S.D.N.Y. 1990) (allegations of food and water deprivation and crowded an unsanitary confinement allow reasonable inference of deliberate indifference)). The cour ruled further that there was an issue of fact regarding the question of deliberate indiffere ce, noting that "the risks of extended periods of food deprivation might well be regarded s obvious." Williams, 875 F. Supp. at 1014.
Finally, in Coo erv.Sheriff ubbockCoun Texas, 929F.2d 1078 (5thCir. 1991), an inmate alleged food deprivation y jail officials for thirteen days. The officials argued that the inmate was denied food on y because he did not follow a policy requiring inmates to be fully dressed for meals. In a dition, the officials argued that they were entitled to qualified immunity. Noting that the "mere existence of such a regulation is not an automatic shield against a civil rig ts suit," the court ruled that plaintiff's allegations of continuous food deprivation stated a claim under the Eighth Amendment. Id. at 1083. Because food deprivation was a "fo m of corporal punishment," the Eighth Amendment imposed limits on its use. Id. Th court also rejected the officials' qualified immunity argument because "this circuit has I ng held that state prisoners are entitled to reasonably adequate food." These cases illustr te what should be an obvious point: the use of food deprivation as a disciplinary meas re is subject to the limits imposed by the Eighth Amendment, even when the only re on for the deprivation is an inmate's failure to follow
21

prison regulations. Defendants rely on several a ders issued by this court in other cases concerning the
Secure Program Facility's meal deliv ry rules in which this court dismissed food deprivation claims as legally frivolous. Williams . Ber e, No. 02-C-0070-C, 2002 WL 32350038, at *3 (W.D. Wis. Apr. 3,2002). Those c ses did not involve the extended periods of deprivation of all meals alleged by plaintiff in thO s case. Williams concerned a prisoner who was denied breakfast or lunch over the course 0 a month. In the present case, plaintiff alleges denial of all meals on two separate occasio s for eight consecutive days as well as at various other times over a three to four year perio . The allegations of total deprivation presented in this case stand in stark contrast to the c mparably minor deprivations at issue in Williams.
Setting aside the parsing of c se law, it appears that this case involves conduct that a reasonable state actor would reco nize as obviously beyond the limits set by the Eighth Amendment. It is difficult to see wh defendants would need to resort to case law or statute before realizing that an inmate who did not receive hundreds of meals over a three or four year period, including two week-Io g stretches in which that inmate did not receive any meals, was being subjected to cruel a d unusual punishment regardless of the reason for the deprivations. Cf. Brown v. Thorn s n, 868 F. Supp. 326,330 (S.D. Ga. 1994) ("Denial of food and medical attention are, p a facie, clearly established violations of the Eighth Amendment ... As such, qualifie immunity is not appropriate in this context. Any
22

reasonable prison official is fully awa e that deprivation of food and medical care for serious medical conditions is illegal; it woul be beyond credibility for prison medical staff to claim ignorance as to the potentially c nstitutional implications of denying inmates basic necessities of life."). Considering th amount and duration of the deprivations alleged by plaintiff, a reasonable state actor wo ld know that defendants' persistence in enforcing the meal delivery policy, even though pIa ntiff chose not to comply with it, denied plaintiff "the minimal civilized measure of life's n cessities." Rhodes, 452 U.S. at 347.
Qualified immunity is design d to give public officials "the benefit of legal doubts." Elliott v. Thomas, 937 F.2d 338, 34 (7th Cir. 1991). A prisoner's right to adequate food was not in doubt in 2000 and has n t been in doubt for years. Likewise, the applicability of the Eighth Amendment to prison isciplinary measures was clearly established by 2000. Assuming as I must that plaintiffs al egations are true, I find that defendants' conduct does not straddle the line between legal nd illegal conduct. At this stage of the litigation, I cannot conclude that defendants are entitled to qualified immunity.
B. Moneta Defendants note that to the e ent plaintiff seeks monetary damages from defendant Berge in his official capacity, plaint ffs claim is barred because defendant Berge is not subject to suit under § 1983 in his 0 ficial capacity. Sanville, 266 F.3d at 732-33 (official
23

capacity claims for money damages ot cognizable under § 1983). Plaintiff contends that he is suing defendant Berge for mo etary relief in his individual capacity and seeks only injunctive relief against defendant Berge in his official capacity. A plaintiff seeking prospective relief against a state offi ial in his official capacity may bring his claim under § 1983. Williams v. Wisconsin, 336 F 3d 576,580-81 (7th Cir. 2003). Thus, it appears that defendants' argument is moot bec use plaintiff is not seeking monetary relief against defendant Berge in his official capac ty.

ORDER

IT IS ORDERED that defend nts' motion to dismiss is DENIED.

Entered this

'D ~ d Yof November, 2004.

BY THE COURT:

. ~~~.e.. -LL-
BARBARA B. CRABB District Judge

24

 
 IN THE UNIT D STATES DISTRICT COURT FOR THE WEST RN DISTRICT OF WISCONSIN

BERRELL FREEMAN,

Plaintiff,
v.
GERALD BERGE, Warden in his official and individual capacities; ON LITSCHER; PETER HUIBREGT E, Deputy Warden, in his individual capacity; GARY BOUGHTON, Security Director, in his individu capacity; JOHN SHARPE, Unit Manager (former) in his individ capacity; and BRAD HOMPE, U Manager, in his individual capacit ,

JUDGMENT IN A CIVIL CASE Case No. 03-C-0021-C

Defendants.

This action came before th court and a jury with DISTRICT JUDGE BARBARA B. CRABB presiding. e issues have been considered and tried and the jury has rendered its verdict.

IT IS ORDERED AND ADJ DGED THAT JUDGMENT IS ENTERED: (I) DENYING plaintiffs requ st for leave to proceed with respect to his claims
that defendants violated hi right to due process under the Fourteenth Amendment by restricting e paper he receives and his Fourth Amendment rights by searching his cell; (2) GRANTING defendants' otion to dismiss plaintiffs claims that he was strip

fud ent in a Civil Case

Pa e 2

subject to sensory deprivati n and social isolation in violation of the Eighth

Amendment;

(3) GRANTING defendants' otion for summary judgment with respect to

plaintiffs claim that defen ants violated his Eighth Amendment rights by

subjecting him to extreme old and DISMISSING all claims against defendant

Jon Litscher;

(4) AWARDING plaintiff Berr 11 Freeman damages in the total amount of

$1,250,000.00 against de£ ndants Gerald A Berge, Peter Huibregtse and Brad

Hompe following trial on aintiffs claim that he was deprived of food in

violation of the Eighth Am ndment and DISMISSING all claims against

defendant Gary Boughton;

(5) GRANTING plaintiffs m tion for permanent injunction and enjoining

defendants Gerald Berge, eter Huibregtse and Brad Hompe from withholding

meals from plaintiff Berrel Freeman as a response to any rule violation that

does not constitute an i inent security risk. Approved as to form this ~ day of December, 2004.

BARBARA B. CRABB
DISTRICT JUDGE
~J{
Theresa M. Owens, Cle k of Court

OH :l 0 2004
Date

 
 2003 WL 23277412 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald Berge and Jon E. LITSCHER, Defendants.
No. 03–C–0021–C. | July 30, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion

ORDER
CROCKER, Magistrate J.
*1 Before the court are plaintiff Berrell Freeman’s motions to compel the defendants to provide more complete responses to his First Request for Production of Documents and Request for Admissions (dkts.29–31). Defendants have objected to all but two of plaintiff’s document requests on the ground that they seek information related to claims that this court has dismissed from this lawsuit. Defendants made the same objection to plaintiff’s requests for admissions; at the same time, however, they answered each request with a categorical denial. Defendants maintain that most of the information plaintiff seeks is not relevant to this lawsuit; plaintiff maintains that it is.
Only two of plaintiff’s claims are still alive: 1) his claim that defendants violated his Eighth Amendment rights by subjecting him to extreme cell temperatures; and 2) his claim that defendants violated his Eighth Amendment rights when they denied him adequate food. In his submissions in support of his motion to compel, plaintiff maintains that he should be allowed to argue that the “excessive temperatures, denial of food, etc. together caused the plaintiff’s injuries,” pointing out that the Supreme Court has recognized a “totality of conditions” theory as a basis for an Eighth Amendment claim. Plaintiff is wrong. There is no “etc.” in this case. The court has allowed plaintiff to proceed only on his claims relating to cell temperatures and the denial of food, not the totality of the conditions existing at the Wisconsin Secure Program Facility.
As explained in this court’s decision on defendants’ motion to dismiss, although the Supreme Court has recognized that some conditions of confinement may “in combination” establish an Eighth Amendment violation when each would not do so alone, this theory is only viable when the particular conditions “have a mutually enforcing effect that produces the deprivation of a single, identifiable human need.” Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (citing low nighttime cell temperature plus a failure to issue blankets as example). Although the court recognized in previous orders that plaintiff’s allegations in his complaint might state a claim that certain conditions at SMCI/WSPF operated together to deprive him of a basic human need for social interaction and sensory stimulation, it dismissed this claim on the ground that defendants were entitled to qualified immunity on this issue. With respect to his complaints of excessive cell temperatures and the use of food as punishment, the court held that each of these claims alone stated independent Eighth Amendment claims. Plaintiff does not need to proceed on a “combination” theory with respect to these claims because each is adequate alone to state a violation of the

	  

1	  

Eighth Amendment. Furthermore, plaintiff has not identified a single basic human need that is disturbed by the combined effect of the alleged food deprivation and excessive cell temperatures. Every condition that is egregious enough to violate the Eight Amendment is likely to cause emotional pain and mental distress. These psychological injuries are common human responses to unconstitutional behavior. The “need” to be free from such injuries inflicted by others is not the kind of basic human need that was envisioned by the Supreme Court as warranting special treatment under the Eighth Amendment.
*2 Having clarified the scope of this lawsuit, I now turn to plaintiff’s specific discovery requests.
Requests for Admissions Plaintiff concedes that his Requests for Admission 1–7 seek medical opinions that defendants are not qualified to give. In Requests for Admission 8–14, plaintiff asks defendants to admit that plaintiff has suffered from a variety of ailments while at SMCI/WSPF, including secretion of excessive gastric acid; constant/frequent headaches; physical complaints that are without any diagnosable basis; despair and sleep disorders; complications in breathing; distortions or illusions; and forgetfulness and confusion. Request for Admission 15 asks defendants to admit that plaintiff has been placed on a medical diet while a prisoner at SMCI/WSPF. Defendants objected to every request as “irrelevant and outside the scope of this litigation given that the court has dismissed any and all claims related to the subject matter found in this admission request.” Notwithstanding that objection, the defendants categorically denied each of plaintiff’s requests.
Because defendants have answered each of plaintiff’s requests, it is unnecessary to rule on the sufficiency of their relevance objection. Under Fed.R.Civ.P. 36(a), a party who denies a request to admit
shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder.
Fed.R.Civ.P. 36(a). Plaintiff argues that defendants have violated this rule by denying his requests for admissions categorically. However, plaintiff has not submitted any evidence or argument to support his contention that defendants lacked a good faith basis for their denials. Absent evidence to the contrary, this court presumes that the defendants are familiar with Rule 36 and that they complied with it when they drafted their answers to plaintiff’s requests for admissions.
That said, I note that in their response to plaintiff’s motion to compel, defendants have asserted that plaintiff’s admissions seek “several mental and physical health determinations from defendants who are not qualified to provide such determinations.” If that is the reason defendants denied all of plaintiff’s requests for admissions regarding his health while at SMCI/WSPF, then their responses are inadequate under Rule 36. According to the rule, an answer to a request for admission “shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the mater.” In other words, “I don’t know” is different from a denial: when a party answers “I don’t know,” then he must explain why not.
In addition, the rule states that
[a]n answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.
*3 I don’t know the basis for defendants’ denials, so I cannot conclude that defendants’ responses are inadequate. To prevent misunderstandings, however, I am directing that defendants review their answers to ensure full compliance with Rule 36, and to amend their answers forthwith if there are any deficiencies.

	  

2	  

Document Requests I am denying plaintiff’s motion for an order compelling defendants to produce documents. Requests nos. 1– 6, 8, 15 and 16 seek information relating to the effects of solitary confinement or the “behavioral modification process” on a prisoner, including studies and evaluations of the SMCI/WSPF or other Supermax facilities by outside groups or individuals; policies regarding the placement and retention of inmates at the institution; and the incidence of depression, sleep disturbances and attempted suicide at SMCI/WSPF compared to other Wisconsin prisons. This information all relates to plaintiff’s claim that the totality of the conditions at SMCI/WSPF deprived him of the basic human need for social interaction and sensory stimulation. As such, it is irrelevant to this lawsuit.
Request No. 7 seeks copies of correspondence exchanged between defendants and Dr. Gary Maier addressing the inadequacy of the mental health service at SMCI/WSPF. Request No. 12 seeks any documents that relate to “SMCI directing Dr. Maier to curtail the prescribing of sleep medications or other medications.” It is unclear how this information relates to plaintiff’s claims that he was denied food as punishment and that he was subject to extreme cell temperatures. Plaintiff has not alleged in this case that prison officials were deliberately indifferent to his serious medical needs. Absent such an allegation, I presume that these document requests are related to plaintiff’s “totality of conditions” claim, which has now been dismissed. Accordingly, defendants will not be ordered to respond to these discovery requests.
Request Nos. 10, 11 and 18 seek copies of various medical reports pertaining to the plaintiff. Even assuming some of these reports might be relevant to plaintiff’s claims regarding excessive cell temperatures and food deprivation, defendants do not have to produce them. In fact, because the records plaintiff seeks are confidential, defendants cannot have access to them unless plaintiff provides a signed medical release to defendants. Plaintiff may obtain his own copies of his medical reports from the institution.
Request No. 14 seeks information related to cell and strip searches. Because this court has dismissed plaintiff’s complaint regarding monthly cell and strip searches, defendants do not have to produce this information.
Request No. 17 seeks copies of defendants’ “answers to interrogatories, admissions, depositions and declarations” previously given in the Jones ‘El v. Litscher case, 00–C–421–C. Although some of these materials might contain relevant information insofar as excessive cell temperature was an issue in the Jones ‘El case, I am not ordering defendants to produce them. Plaintiff’s request is much too broad and it imposes an undue burden on defendants. Plaintiff may discover the information he needs by drafting his own interrogatories tailored to the specific issues in his case.
*4 Finally, in a separate motion, plaintiff contends that defendants’ response to Request No. 9, which asked for documents related to the adequacy of WSPF/SMCI’s heating and ventilation system, is inadequate because it does not include the temperature records for June 29, 2001 to July 25, 2001. Defendants have not opposed plaintiff’s request for those records. Accordingly, this motion will be granted.

ORDER
IT IS ORDERED:
1. Plaintiff’s motion to compel defendants to produce more complete responses to his requests for admissions (dkt.30) is DENIED.
2. Plaintiff’s motion for an order compelling discovery (dkt.29) is DENIED.
3. Plaintiff’s motion for an order to produce documents (dkt.31) is GRANTED. Defendants are ordered to produce records showing the temperatures at SMCI between June 29, 2001 to July 25,

	  

3	  

2001, if such documents exist. Plaintiff’s motion to compel the production of documents is denied in all other respects.

	  

4	  

 
 283 F.Supp.2d 1009 (2003)
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03-C-0021-C.
United States District Court, W.D. Wisconsin.
June 3, 2003.
1010 *1010 Berrell Freeman, Boscobel, WI, Pro se.
1011 *1011 Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for defendants.
OPINION AND ORDER
CRABB, District Judge.
In an order dated February 12, 2003, I allowed plaintiff Berrell Freeman to proceed in forma pauperis on claims that defendants Gerald Berge and Jon Litscher violated his rights (1) to be free from unreasonable searches under the Fourth Amendment and from excessive force under the Eighth Amendment; (2) to receive adequate food under the Eighth Amendment; (3) to be free from extreme cell temperatures under the Eighth Amendment; and (4) to receive social interaction and sensory stimulation under the Eighth Amendment. Defendants have filed a motion to dismiss most of these claims on multiple grounds. First, defendants contend that plaintiff has failed to exhaust his administrative remedies for each of his claims except for his claim regarding extreme cell temperatures. Second, they argue that plaintiff's claim that he was denied food in violation of the Eighth Amendment is barred by the settlement agreement in Jones `El v. Berge, No. 00-C-421-C. Third, they argue that they are entitled to qualified immunity on plaintiff's claims that he was denied social interaction and sensory stimulation.
Defendants' motion will be granted in part and denied in part. I agree with defendants that plaintiff failed to exhaust his administrative remedies with respect to his claim that defendants subjected him to unconstitutional strip searches. Also, I agree that defendants are entitled to qualified immunity on plaintiff's claims that defendants deprived him of social interaction and sensory stimulation in violation of the Eighth Amendment. Accordingly, I will dismiss these claims. However, I conclude that plaintiff has administratively exhausted his claim that defendants denied him adequate food and that this claim is not barred by the Jones `El settlement agreement.
Also before the court is plaintiff's second motion for appointment of counsel. Because I am not persuaded that appointed counsel is appropriate in this case, plaintiff's motion will be denied.
For the purpose of deciding this motion to dismiss, I accept as true the allegations in plaintiff's complaint. In addition, I have considered documentation of plaintiff's use of the inmate complaint review system. Because these are public records, a court may take judicial notice of the documents without converting the motion to dismiss into a motion for summary judgment. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 455 (7th Cir. 1998).
FACTS
In inmate complaint number WSPF-2002-41916, dated December 2, 2002, plaintiff wrote: "Due to the Settlement Agreement food is not to be used as punishment. I have been denied food because I did not have my light on, etc. This is using food as punishment. I HAVE NEVER REFUSED MY MEALS." The inmate complaint examiner

recommended that the complaint be dismissed, writing that the policies regarding meal delivery were reasonable. The reviewer, the corrections complaint examiner and the office of the secretary affirmed the dismissal.
In complaint number WSPF-2002-41987, also dated December 2, 2002, plaintiff wrote that the "lack of access to the outdoors deprives me of my basic human need for sensory stimulation." The inmate complaint examiner 1012 recommended that the complaint be dismissed, concluding that "complainant has provided no evidence *1012 whatsoever that he resides in an environment harmful to his well-being." The decision was affirmed by the reviewer, the corrections complaint examiner and the office of the secretary.
Plaintiff filed inmate complaint number WSPF-2002-41219 on November 25, 2002, in which he wrote that he has been "subjected to 24 hour monitoring by video/audio denying me meaningful human contact." The inmate complaint examiner rejected the complaint, stating, "The issues in this complaint have been addressed in WSPF-2002-41987." This decision was affirmed by the corrections complaint examiner and the office of the secretary.
On December 9, 2002, plaintiff filed inmate complaint number WSPF-2002-42678. He wrote: "Due to the 24 hour lighting I have suffered from decreased vision/associated medical problems." The inmate complaint examiner noted that there was "nothing noted regarding decreased vision from the lighting at WSPF in plaintiff's last eye doctor report from January 28, 2002." The examiner recommendation that the complaint be dismissed, a decision that was affirmed by the reviewer, the corrections complaint examiner and the office of the secretary.
In complaint number WSPF-2002-17961, plaintiff wrote that he was subject to monthly cell and strip searches. The inmate complaint examiner recommended that the complaint be dismissed and plaintiff did not appeal that decision.
OPINION
I. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prohibits the bringing of any action "with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Section 1997e(a)'s exhaustion requirement is mandatory and applies to all prisoners seeking redress for wrongs occurring in prison. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Court of Appeals for the Seventh Circuit has held that "a suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits." Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999); see also Massey v. Helman, 196 F.3d 727 (7th Cir.1999). The potential effectiveness of an administrative response bears no relationship to the statutory requirement that prisoners first attempt to obtain relief through administrative procedures. Massey, 196 F.3d at 733.
"Before an inmate may commence a civil action ... the inmate shall exhaust all administrative remedies that the department of corrections has promulgated by rule." Wis. Admin. Code § DOC 310.05 (November 2002). (Plaintiff filed at least one of the inmate complaints at issue in this case before the November amendments to Chapter DOC 310 became effective On December 1, 2002. However, the differences between the two versions are not relevant to deciding this case.) Generally, to administratively exhaust a claim, an inmate must file a complaint with an inmate complaint examiner, receive a decision on the merits and appeal an adverse decision to the "appropriate reviewing authority," the corrections complaint examiner and the office of the secretary. Wis. Admin. 1013 Code § DOC 310.07. (In limited instances not at issue in this case, the *1013 filing and appeal process is altered somewhat.)
An inmate shall include only one issue in each complaint and file no more than two complaints each week. Wis. Admin. Code §§ DOC 310.09(1)(e) and (2). The inmate complaint examiner may reject a complaint if it fails to allege sufficient facts upon which redress may be made, does not raise a "significant issue," is untimely or raises an issue already addressed in another complaint, among other reasons. Wis. Admin. Code § DOC 310.11(4).

To exhaust administrative remedies, a prisoner must observe the procedural requirements of the system. Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002) ("unless the prisoner completes the administrative process by following the rules the state has established for that process, exhaustion has not occurred"). Any other approach would defeat the statutory objective of allowing the prison administration the opportunity to fix the problem, id. at 1024, and would remove the incentive that § 1997e provides for inmates to follow state procedure, id. at 1025.
The first issue concerns plaintiff's claim that he was denied sensory stimulation and social interaction. The factual allegations underlying this claim are that he lacked access to the outdoors, and was subject to 24-hour lighting and audio and video monitoring. Defendants contend that plaintiff failed to exhaust his administrative remedies with respect to this claim because he never challenged the prison's policies regarding lighting, monitoring and the outdoors in one complaint. Instead, he filed complaints addressing each of these issues separately.
I disagree with defendants that plaintiff was required to put all of these allegations in one grievance. They are separate occurrences involving separate facts. What joins these allegations is a legal theory, recognized in Wilson v. Seiter, 501 U.S. 294, 305, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), that multiple conditions having "a mutually enforcing effect" on one human need may violate the Eighth Amendment in combination when they would not do so alone. Defendants point to no regulation requiring inmates to put all allegations encompassed by a legal theory in a single complaint. Rather, the regulations instruct inmates to include only "one issue" in each complaint. Wis. Admin. Code. § 310.09(1)(e) (November 2002). Although the term "issue" as used in the regulation has not been construed in the case law, it appears that examiners are interpreting issues to mean factual issues and not legal issues. See Horton v. Berge, No. 02-C-470-C, dkt. # 50 (W.D.Wis. March 12, 2003) (granting defendants' motion to dismiss for failure to exhaust administrative remedies when plaintiff included in his inmate complaint "a variety of grievances relating to sensory deprivation and social isolation" and examiner rejected complaint because it contained more than one issue).
Defendants cannot have it both ways. An inmate must be permitted to either separate or join his allegations regarding isolation and sensory deprivation; defendants cannot make it impossible for inmates to file claims involving the type of claim identified in Wilson. Strong v. David, 297 F.3d 646, 649 (7th Cir.2002) ("[N]o prison system may establish a requirement inconsistent with the federal policy underlying § 1983."). So long as plaintiff has employed the administrative review system to timely raise all the factual issues encompassed by a particular legal claim, the regulations do not require an inmate to combine all of his grievances into one complaint. (A 1014 colorable argument could be made that plaintiff failed to administratively exhaust his claim with respect *1014 to the issue of 24-hour lighting because he did not refer expressly to sensory deprivation in his prison grievance. However, defendants did not make this argument, so I will leave its resolution for another day.)
The next issue concerns the timing of plaintiff's grievances in relation to the date of the settlement agreement in Jones `el v. Berge, No. 00-C-421-C, to which plaintiff is party and which addresses many of the claims that plaintiff raised in his complaint. Defendants argue that because plaintiff filed many of his grievances after the settlement agreement took effect in March 2002, he is "really" alleging violations of the settlement agreement. Therefore, defendants contend, plaintiff failed to exhaust his administrative remedies on his claims of social isolation and sensory deprivation for the period before the settlement agreement.
I agree with defendants to the extent they are arguing that the settlement agreement limits the relief plaintiff may obtain in this lawsuit for injuries he has sustained as a result of social isolation and sensory deprivation. In the March 12, 2003 order allowing plaintiff leave to proceed, I noted that if plaintiff believed that defendants were violating the settlement agreement, he should direct his concerns to the monitor rather than file a separate lawsuit. However, plaintiff remained free to maintain a lawsuit for money damages for conditions that existed before the settlement agreement took effect.
Defendants' argument that plaintiff is barred completely from proceeding on his social isolation and sensory deprivation claims is based on an assumption that because plaintiff filed his grievances after the settlement agreement, he did not intend to challenge conditions as they existed before the settlement agreement. This assumption is not justified. Nothing in plaintiff's prison grievances suggest that he intended them to be time restricted. Thus, plaintiff's grievances should be construed as challenging the conditions as they existed since he was transferred to the Secure Program Facility, which was before March 2002.

It is true that the regulations permit examiners to reject complaints as untimely if they are filed more than 14 days after the event giving rise to a claim. Wis. Admin. Code § DOC 310.11(4)(d). Regardless whether this requirement would apply to ongoing violations, it is undisputed that the examiners did not reject plaintiff's complaint for untimeliness or limit consideration of the question raised to a particular time period. Thus, I conclude that plaintiff has administratively exhausted these claims.
Defendants also argue that plaintiff's claim that he was denied food in violation of the Eighth Amendment is barred by the settlement agreement because the agreement contains a provision covering the use of food as punishment. However, even assuming that all of plaintiff's claims regarding the deprivation of food arose after March 2002, he is not barred from litigating that issue in this suit. The issue of using food as punishment was not certified for class treatment in Jones `El or otherwise presented to the court. As I explained in Gonzalez v. Litscher, 230 F.Supp.2d 950 (W.D.Wis. 2002), as a general rule, unless an issue in a class action is approved for class treatment, the inclusion of that issue in a settlement agreement will not prohibit subsequent lawsuits seeking to litigate constitutional claims involving the same issue. Otherwise, class members could be bound by settlements with respect to issues for which they had no adequate representation and little or no opportunity to be heard.
1015 *1015 The plaintiffs in Jones `El did not allege that inmates were being denied food unlawfully and I did not certify the issue for class treatment. Thus, the settlement agreement does not bar plaintiff from litigating this issue in this case, insofar as he is alleging that the denial of food violates the Eighth Amendment and not just the settlement agreement.
Finally, I agree with defendants that plaintiff failed to exhaust his administrative remedies with respect to his claim that he was strip searched in violation of the Fourth and Eighth Amendments. Plaintiff did not appeal his inmate complaint regarding strip searches. By failing to appeal the dismissal, plaintiff failed to exhaust his administrative remedies. Pozo, 286 F.3d at 1024. Accordingly, I will dismiss plaintiff's claim that he was unlawfully strip searched for failure to exhaust his administrative remedies.
II. QUALIFIED IMMUNITY
Defendants argue that they are entitled to qualified immunity on plaintiff's claims that he was denied social interaction and sensory stimulation. Qualified immunity provides officers with protection from lawsuits for money damages when there is no clearly established law that the official's act violated the Constitution. Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A plaintiff cannot show that the law is clearly established by pointing to an "abstract right." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). However, it is not necessary to show that there is an identical case or one with "materially similar" facts. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Rather, a right is "clearly established" when a reasonable official would know that what he or she is doing violates that right. Id.
The legal theory under which I allowed plaintiff to proceed was first recognized by the Supreme Court in Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), in which the court stated that conditions "alone, or in combination, may deprive inmates of the minimal civilized measure of life's necessities." This statement was further refined in Wilson v. Seiter: "Some 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." The Court identified expressly only "food, warmth [and] exercise" as human needs. See also Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (stating that life's necessities include food, clothing, shelter and medical care).
In Jones `El, I concluded that basic human needs include social interaction and sensory stimulation. Although the Court of Appeals for the Seventh Circuit has recently confirmed the view that the Eighth Amendment prohibits wanton infliction of psychological as well as physical pain, Calhoun v. DeTella, 319 F.3d 936 (7th Cir.2003), it has not expressly held that social isolation and sensory deprivation may serve as bases for a claim under the Eighth Amendment. Rather, in Bono v. Saxbe, 620 F.2d 609, 614 (7th Cir.1980), the court held: "Inactivity, lack of companionship and a low level of intellectual stimulation do not constitute cruel and unusual punishment even if

they continue for an indefinite period of time." But see Hoptowit v. Ray, 682 F.2d 1237, 1257-58 (9th Cir.1982) ("The deprivation of nearly all fresh air and light, particularly when coupled with the guard's control over the 1016 window and the electric light, creates an extreme hazard to the physical and mental *1016 well-being of the prisoner in violation of the Eighth Amendment."); Ruiz v. Johnson, 37 F.Supp.2d 855, 915 (S.D.Tex.1999) (finding that prison officials violated Eighth Amendment when they subjected inmates to "extreme social isolation and reduced environmental stimulation"); Madrid v. Gomez, 889 F.Supp. 1146, 1264 (N.D.Cal.1995) (placement of mentally ill inmates in segregation is cruel and unusual punishment).
I noted in Jones `El that Bono does not stand for the proposition that claims of social isolation and sensory deprivation can never amount to violations of the Eighth Amendment. I adhere to the view that harm caused by lack of human contact and sensory stimulation may violate "contemporary standards of decency" in some instances. However, with Bono as the only case as a guide in this circuit, it would not be unreasonable for a prison official to believe that constant cell illumination, audio and visual monitoring and lack of access to the outdoors did not violate the Eighth Amendment, alone or in combination. Although the determination whether a law is clearly established is not limited to a review of cases in this circuit, I cannot say that there was such a "clear trend" in the case law from other courts that it was "merely a question of time" that the right would be recognized by the Court of Appeals for the Seventh Circuit. Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir.2000). Few courts have addressed the issue directly and those that have are not in agreement regarding what the Eighth Amendment requires. Compare Ruiz, 37 F.Supp.2d 855 and Madrid, 889 F.Supp. 1146, with Newman v. State of Alabama, 559 F.2d 283, 291 (5th Cir.1977) (rejecting argument that deterioration of mental health implicates Eighth Amendment concerns); Everson v. Nelson, 941 F.Supp. 1048, 1051 (D.Kan.1996) (holding that "retrogression of human development" does not state claim under Eighth Amendment); see also Gertrude Strassburger, Judicial Inaction and Cruel and Unusual Punishment, 11 Temp. Pol. & Civ. Rts. L.Rev. 199 (2001) ("[N]o state or federal court has ever held that isolation for prolonged periods of time is a constitutional violation per se.")
Since the court of appeals decided Bono, evidence has accumulated regarding the harm that depriving inmates of social interaction and sensory stimulation can cause. See Leena Kurki & Norval Morris, Purposes, Practices and Problems of Supermax Prisons, 28 Crime & Just. 385 (2001) (evaluating studies and concluding that solitary confinement will have detrimental psychological effects unless it lasts only a short time); Maria Dorte Sestoft, et al., Impact of Solitary Confinement on Hospitalization among Danish Prisoners in Custody, 21 Int'l J.L. & Psychiatry 99 (1998) (finding that rate of hospitalization of prisoners in solitary confinement for more than four weeks was 20 times higher than prisoners in the general population); Craig Haney & Mona Lynch, Regulating Prisoners of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 481 (1997) ("[C]onstitutional doctrines currently governing solitary confinement fail to recognize the nature and magnitude of the psychological trauma that can be inflicted by this form of punishment."); Stuart Grassian, Psychological Effects of Solitary Confinement, 140 Am. J. Psychiatry 1450 (1983) (finding that many inmates in solitary confinement for long periods of time became hypersensitive to external stimuli, suffered from hallucinations, perceptual distortions, paranoia and acute anxiety attacks, had difficulty with memory and concentration and engaged in self-mutilation). However, agreement among mental 1017 health professionals *1017 regarding the deleterious effects of solitary confinement does not translate into legal notice that defendants may have been violating the Eighth Amendment. In the absence of case law concluding that conditions similar to those alleged by plaintiff are unconstitutional, I must conclude that defendants are entitled to qualified immunity on plaintiff's claims that he was subjected to sensory deprivation and social isolation.
Qualified immunity does not apply to claims for injunctive relief. However, plaintiff cannot obtain injunctive relief on these claims because such relief is preempted by the settlement agreement. Accordingly, these claims must be dismissed.
Two of plaintiff's claims remain: (1) his claim that defendants denied him food in violation of the Eighth Amendment; and (2) his claim that defendants subjected him to extreme cell temperatures in violation of the Eighth Amendment. Defendants do not argue that they are entitled to qualified immunity on these claims, so I do not address that issue. All other claims are dismissed.

III. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff argues that the court should appoint counsel for him because he suffers from a mental illness and the case is too complex for him to prosecute on his own. It appears that plaintiff has complied with the requirements of Jackson v. County of McLean, 953 F.2d 1070 (7th Cir.1992), by first attempting to obtain representation on his own from at least three lawyers. However, before I may appoint counsel for plaintiff, I must conclude that plaintiff is unable to represent him or herself given the complexity and the presence of counsel would make a difference in the outcome of his lawsuit. Zarnes v. Rhodes, 64 F.3d 285 (7th Cir. 1995) (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)).
I am not persuaded that plaintiff is unable to represent himself. Although plaintiff contends that he is mentally ill, there is no indication that he is incapable of prosecuting cuting this case. Rather, plaintiff's numerous submissions to the court in both this lawsuit and others belie his assertion that counsel is necessary. Further, plaintiff's most complicated claims were those in which he contended that defendants deprived him of sensory stimulation and social interaction. Plaintiff's two remaining claims are not unduly complex. With respect to his food deprivation claim, plaintiff will have to present evidence that he was denied food for so long that his health was threatened. See Reed v. McBride, 178 F.3d 849, 853 (7th Cir.1999); LeMaire v. Maass, 12 F.3d 1444 (9th Cir.19-93). Similarly, to prove his claim that the temperatures in his cell violated the Eighth Amendment, he will have to present evidence that the temperatures were so extreme that there was a substantial risk of serious harm to his health or safety. Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.1997); Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir. 1986). It is true that plaintiff may need to obtain expert testimony to prove one or both of these claims. Plaintiff argues that he is indigent and will be unable to pay for an expert. Unfortunately for plaintiff, the desire to shift the costs of litigation to a third party is not an appropriate consideration in determining whether to appoint counsel. If plaintiff is unable to persuade any lawyers she wrote to take his case on a contingency basis, this may be because they have determined that the case is not likely to succeed or will not result in a damage award large enough to recoup the expense of prosecuting the case. It is 1018 inappropriate for a court to ask a lawyer to *1018 take the case without regard for his or her assessment of the risks of incurring the expense of the lawsuit against the probability of succeeding on the merits of the case. If plaintiff is to be represented by counsel, he will have to find counsel on his own. If he wishes, he may contact the Wisconsin State Bar Lawyer Referral and Information Service at P.O. Box 7158, Madison, Wisconsin, 53707, 1-800-362-8096, to obtain the names and phone numbers or addresses of lawyers whose practices include Eighth Amendment cases.
ORDER
IT IS ORDERED that
1. The motion to dismiss filed by defendants Gerald Berge and Jon Litscher is DENIED with respect to plaintiff Berrell Freeman's claim that he was denied food in violation of the Eighth Amendment.
2. Defendants' motion is GRANTED with respect to plaintiff's claims that he was strip searched in violation of the Fourth and Eighth Amendments and that he was subjected to sensory deprivation and social isolation in violation of the Eighth Amendment. These claims are DISMISSED from this action.
3. Plaintiff's second motion for appointment of counsel is DENIED.
Save trees - read court opinions online on Google Scholar.

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23142229 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Petitioner, v.
Gerald BERGE and Jon E. Litscher, Respondents. No. 03–C–0021–C. | Jan. 21, 2003.
Attorneys and Law Firms David J. Harth, for Plaintiff. Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendant. Opinion
ORDER
CRABB, J. *1 Petitioner Barrell Freeman, a prisoner at the Wisconsin Secure Program Facility Correctional Institution in Boscobel, Wisconsin, has submitted a proposed complaint. He asks for leave to proceed in forma pauperis. Because petitioner is a prisoner, he is subject to the 1996 Prisoner Litigation Reform Act. This means that before this court may decide whether he can proceed with

his complaint in forma pauperis, petitioner will have to pay an initial partial payment of the filing fee in the amount of $2.11 and the remainder of the fee in monthly installments even if his request for leave to proceed is denied. If petitioner does not have the money to pay the initial partial payment in his regular account, he will have to arrange with prison authorities to pay some or all of the assessment from his release account. This does not mean that petitioner is free to ask prison authorities to pay all of his filing fee from his release account. The only amount petitioner must pay at this time is the $2.11 initial partial payment. Before they take any portion of that amount from petitioner’s release account, prison officials may first take whatever amount up to the full amount petitioner owes from his regular account.
ORDER
IT IS ORDERED that petitioner is assessed $2.11 as an initial partial payment of the $150 fee for filing this case. He is to submit a check or money order made payable to the clerk of court in the amount of $2.11 on or before February 3, 2003. If, by February 3, 2003, petitioner fails to pay the initial partial payment or show cause for his failure to do so, I will assume that he wishes to withdraw this action voluntarily and the clerk of court is directed to close this file without prejudice to petitioner’s filing his case at a later date.
	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23109671 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Petitioner, v.
Gerald BERGE and Jon E. Litscher, Respondents.
No. 03–C–0021–C. | Feb. 12, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion
ORDER
CRABB, J.
*1 This is a proposed civil action for declaratory, injunctive and monetary relief brought pursuant to 42 U.S.C. § 1983. Petitioner Berrell Freeman is presently confined at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. He alleges that respondents Jon Litscher and Gerald Berge violated his Eighth Amendment right to be free from cruel and unusual conditions of confinement, his Fourth Amendment right to be free from unreasonable searches and his Fourteenth Amendment right to due process. In addition, he has filed a motion for appointment of counsel.
Petitioner seeks leave to proceed without prepayment of fees and costs or providing security for such fees and costs, pursuant to 28 U.S.C. § 1915. From the affidavit of indigency accompanying petitioner’s proposed complaint, I conclude that petitioner is unable to prepay the full fees and costs of instituting this lawsuit. Petitioner has submitted the initial partial payment required under § 1915(b)(1).
In addressing any pro se litigant’s complaint, the court must construe the complaint liberally. See Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, if the litigant is a prisoner, the 1996 Prison Litigation Reform Act requires the court to deny leave to proceed if, on three or more previous occasions, the prisoner has had a suit dismissed for lack of legal merit (except under specific circumstances that do not

exist here), or if the prisoner’s complaint is legally frivolous, malicious, fails to state a claim upon which relief may be granted or seeks money damages from a defendant who is immune from such relief. This court will not dismiss petitioner’s case on its own for lack of administrative exhaustion, but if respondents believe that petitioner has not exhausted the remedies available to him as required by § 1997e(a), they may allege his lack of exhaustion as an affirmative defense and argue it on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Massey v. Helman, 196 F.3d 727 (7th Cir.1999); see also Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir.1999).
Petitioner has filed two previous lawsuits against respondents, in which he asserted most of the same claims he raises in this lawsuit. See Freeman v. Wisconsin Department of Corrections, Case No. 02–C–365–C; Freeman v. Litscher, Case No. 02–C–24–C. In both cases, I dismissed each of the claims on the ground that petitioner had failed to exhaust his administrative remedies. However, because I did not decide the merits of these claims, petitioner is not barred by the doctrine of claim preclusion from reasserting them. Now that it appears that petitioner has exhausted his administrative remedies, I will grant him leave to proceed on his claim that respondents violated the Fourth Amendment by subjecting him to unreasonable strip searches and that they violated the Eighth Amendment by using excessive force against him. In addition, I will allow him to proceed on his claims that respondents violated his Eighth Amendment right to be free from cruel and unusual punishment when they (1) denied him food; (2) subjected him to extreme cell temperatures; and (3) subjected him to sensory deprivation and social isolation by keeping him in a cell that is constantly illuminated and under 24–hour video surveillance and by depriving him of access to the outdoors.
*2 Petitioner has added one new claim in this lawsuit: that respondents deprived him of due process of law in violation of the Fourteenth Amendment when they placed him on “paper restriction” status. Petitioner’s request for leave to proceed on this claim will be denied because it is legally frivolous.
In his complaint, petitioner makes the following allegations of fact.
ALLEGATIONS OF FACT
Petitioner Berrell Freeman is a prisoner at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. Respondent Gerald Berge is the prison’s warden.
1

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
Respondent Jon Litscher is Secretary of the Wisconsin Department of Corrections.
Petitioner has been confined at the Secure Program Facility for almost three years. During this entire period, petitioner has been subjected to 24–hour lighting, 24–hour monitoring by audio, video and staff, excessive heat in the summer and excessive cold in the winter. Petitioner has no access to the outdoors except for medical appointments.
Petitioner has been subjected to undocumented monthly cell and strip searches. These are conducted to harass and intimidate petitioner.
Petitioner has been denied food when he turned his light off or was not wearing his pants. Each time that petitioner is punished with the denial of food, staff say that he “refused” his meal. Petitioner has never refused food.
Petitioner was placed on “paper restriction” status. This means that petitioner was allowed only 12 sheets of tissue paper each shift, one sheet of writing paper on first and second shift and use of hygiene products twice a day. Plaintiff was placed on “paper restriction” for 14 days without cause.
These conditions of confinement have caused petitioner to be so severely depressed that he must take anti-depressants. Petitioner has tried to commit suicide. He cannot sleep without medication, has difficulty breathing in the summer and is plagued with colds and the flu in the winter. Because of the extreme temperatures, petitioner must sleep with a mattress on the floor next to the vent. In addition, petitioner suffers from a build-up of fluid in his nipples and lumps and rashes all over his body that cause him pain and physical discomfort. He experiences distortions, illusions, forgetfulness and confusion. The constant illumination had led to impaired vision, headaches and eye pain.
DISCUSSION
A. Due Process: Paper Restriction Status
I understand petitioner to allege that respondents have violated his due process rights under the Fourteenth Amendment by restricting the paper products he receives. When due process applies, it generally requires notice and an opportunity to be heard before adverse action may be taken. However, due process protections do not attach to every state action taken for a punitive reason. Sandin v.. Connor, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d

418 (1995). Rather, they apply only when there is a protected liberty or property interest at stake. Averhart v. Tutsie, 618 F.2d 479, 480 (7th Cir.1980). Liberty interests can be created by state law or by the due process clause itself. Thielman v. Leean, 282 F.3d 478, 480 (7th Cir.2002). Petitioner does not identify a state-created liberty interest, so the question is whether his freedom from restraint has been restricted so greatly that it “exceed[s] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Sandin, 515 U.S. at 484; see also Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (finding liberty interest when punishment was “qualitatively different” from the punishment characteristically suffered by a person convicted of a crime)
*3 Thus far, the Supreme Court has identified two instances in which the due process clause creates a liberty interest in the context of a prison sentence: a transfer from a prison to a mental hospital, Vitek, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), and the involuntary administration of psychotropic drugs, Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Petitioner cannot argue successfully that limiting the amounts of paper he is entitled to receive because of misconduct is comparable to the conditions discussed in Vitek or Harper. Accordingly, I will deny petitioner leave to proceed on his claim that respondents violated his right to due process when they put him on paper restriction. The claim is legally frivolous.
B. Unreasonable Searches
I understand petitioner to allege that respondents condone subjecting him to monthly cell and strip searches for the sole purpose of harassment and intimidation. With respect to the cell searches, the Supreme Court has held that prison officials may search an inmate’s cell at random without violating the Fourth Amendment because prisoners have no reasonable expectation of privacy in their cells. Hudson v. Palmer, 468 U.S. 517, 519–20, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Therefore, this portion of petitioner’s Fourth Amendment claim will be denied as legally frivolous. However, the Court of Appeals for the Seventh Circuit has recognized that prisoners retain some protection under the Fourth Amendment against unreasonable searches of their person. Peckham v. Wisconsin Department of Corrections, 141 F.3d 694, 697 (7th Cir.1998). Reasonableness is determined by balancing “the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In addition to
2

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
the protections under the Fourth Amendment, the Eighth Amendment’s prohibition on the use of excessive force may apply when the purpose of the search is solely for harassment rather than legitimate institutional concerns. Peckham, 141 F.3d at 697; see Hudson v. McMillan, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (standard for excessive force is whether “prison officials maliciously and sadistically use force to cause harm”). It may be that petitioner has been searched for legitimate security concerns. However, from the scant allegations in the complaint, I cannot say that the strip searches are reasonable. I will assume at this stage that the monthly strip searches are conducted either pursuant to a policy or at the direction or consent of respondents. See Sheik–Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir.1994) (Under § 1983, “liability does not attach unless the individual defendant caused or participated in a constitutional deprivation.”) Petitioner’s request for leave to proceed on this claim will be granted.
C. Eighth Amendment: Conditions of Confinement
Petitioner contends that he is subjected to conditions of confinement at the Wisconsin Secure Program Facility that violate his Eighth Amendment right to be free from cruel and unusual punishment.
*4 The Eighth Amendment prohibits conditions of confinement that “involve the wanton and unnecessary infliction of pain” or that are “grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Because the Eighth Amendment draws its meaning from evolving standards of decency in a maturing society, there is no fixed standard to determine when conditions are cruel and unusual. Id. at 346. However, conditions that create “temporary inconveniences and discomforts” or that make “confinement in such quarters unpleasant” are insufficient to state an Eighth Amendment claim. Adams v. Pate, 445 F.2d 105, 108–09 (7th Cir.1971).
Petitioner alleges that from the time of his arrival at the Wisconsin Secure Program Facility until the present he has been exposed to extreme cold in the winter and extreme heat in the summer. He has received a medical restriction allowing him to place his mattress on the floor near the air vent. The extreme temperatures have caused petitioner chronic colds and flus that dehydrated him, resulting in pain and discomfort. In addition, petitioner has suffered from a build-up of fluid in his nipples and lumps and rashes all over his body that have caused him pain and physical discomfort.
Prisoners are entitled to “the minimal civilized measure of

life’s necessities.” Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.1997) (citing Farmer v. Brennan, 511 U.S. 825, 833–34, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). This includes a right to protection from extreme cold, see id. (holding that cell so cold that ice formed on walls and stayed throughout winter might violate Eighth Amendment), and extreme heat, see Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir.1986). “[C]ourts should examine several factors in assessing claims based on low cell temperature, such as the severity of the cold; its duration; whether the prisoner has alternative means to protect himself from the cold; the adequacy of such alternatives; as well as whether [the inmate] must endure other uncomfortable conditions as well as cold.” Dixon, 114 F.3d at 644. In certain circumstances extreme hot or cold cell temperature may constitute violations of the Eighth Amendment. Although at this early stage I cannot say that petitioner could not prove any set of facts entitling him to relief on this claim, I note that he faces an uphill battle. To succeed on this claim, petitioner will have to obtain evidence of the actual temperature in his cells during the time in question and be prepared to prove that as a result of the extreme heat or cold he suffered adverse health effects beyond mere discomfort. Petitioner’s request for leave to proceed in forma pauperis on this claim will be granted.
Petitioner alleges also that he has been denied regular meals because he turned off his light or was not wearing pants. Prison officials are not constitutionally barred from using food to discipline inmates for misconduct. See, e.g., Lemaire v. Maass, 12 F.3d 1444, 1455–56 (9th Cir.1993). However, even recalcitrant prisoners are entitled to “the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 833–34. These include “adequate food, clothing, shelter and medical care.” Id. at 832. Thus, failure to provide an inmate with “nutritionally adequate food” may constitute a violation of the Eighth Amendment. Antonelli v. Sheehan, 81 F.3d 1422, 1432 (7th Cir.1996).
*5 It is not possible to tell from petitioner’s scant allegations whether he was deprived of food over several days or whether the sanction was only sporadic. Because the facts are unclear on this point, I cannot say that petitioner’s claim that he was deprived of food is not sufficiently serious to state a claim under the Eighth Amendment. Petitioner’s allegations may present a situation similar to that in Cooper v. Sheriff, Lubbock County, Texas, 929 F.2d 1078, 1081 (5th Cir.1991), in which a prisoner alleged that he had been denied food for several days in a row because he was not fully dressed at mealtime. The Court of Appeals for the Fifth Circuit held that although withholding food for failing to dress may be “a facially permissible form of punishment,” being deprived of food for several days could constitute cruel and unusual punishment. Id . at 1083. See also Dearmann v. Woodson, 429 F.2d 1288, 1289 (10th Cir.1970)
3

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
(prisoner stated a claim under § 1983 when he alleged that prison officials deprived him of food for 50½ hours); Williams v. Coughlin, 875 F.Supp. 1004, 1013 (W.D.N.Y.1995) (officials may have violated Eighth Amendment when they withheld food for two days for prisoner’s failure to return food tray). Although petitioner will be granted leave to proceed on this claim, if he is to succeed in the end, he will have to prove that the amount of food he received was not “adequate to maintain [his] health.” LeMaire, 12 F.3d at 1456.
In Jones ‘El v. Berge, case no. 00–C–421–C, in which petitioner is a class member, I granted the plaintiff class leave to proceed on a claim that certain conditions constitutionally permissible by themselves might violate the Eighth Amendment if, in combination, they deprived an inmate of a single identifiable basic human need.
The conditions making up the “totality” claim in Jones ‘El were as follows:
(1) 24–hour lock down, except that some inmates are able to leave their cells for up to four hours a week to use an unheated or cooled indoor recreation cell;
(2) cells with a sliver of a window and a boxcar door that prevents inmates from seeing outside their cell;
(3) extremely limited use of the telephone, family or personal visits by video screen only and visiting regulations so burdensome as to prevent many inmates from receiving visitors;
(4) chronic sleep deprivation caused by 24–hour cell illumination and, for inmates choosing to block the light by covering their heads, being awakened hourly throughout the night by security staff;
(5) use of a video camera rather than human interaction to monitor all inmate movement; and
(6) extreme cell temperatures.
In Jones’El, I understood the plaintiffs to contend that these conditions combined to deprive them of the clearly identifiable and basic human needs of social interaction and sensory stimulation. In this case, petitioner alleges that he was subjected to the following conditions also found among the conditions listed in Jones ‘El:
*6 (1) no access to the outdoors;
(2) constant cell illumination;
(3) constant video monitoring; and
(4) extreme cell temperatures.

I have concluded that petitioner states an independent claim for relief under the Eighth Amendment with respect to the extreme temperatures in his cell. I concluded in case no. 02–C–24–C that the lack of access to the outdoors, constant illumination and constant video monitoring failed to state viable independent Eighth Amendment claims. For that reason, I have not repeated the analysis in this opinion. However, petitioner alleges that the lack of access to the outdoors, constant illumination and constant monitoring together deprive him of sensory stimulation and social interaction and require him to take antidepressants and sleep medications. Accordingly, I conclude that petitioner’s allegations make out a claim that the combination of conditions deprive him of his human need for sensory stimulation and social interaction in violation of the Eighth Amendment. Petitioner’s request for leave to proceed in forma pauperis will be granted on this claim.
Petitioner should be aware that he faces an uphill battle on this claim. Not only will he have to show that he is deprived of any meaningful amount of social interaction and sensory stimulation, he will also have to show that this deprivation creates a substantial risk of serious harm for him. The allegations in petitioner’s complaint provide almost no details regarding this claim. Although the Federal Rules of Civil Procedure permit plaintiffs to allege in a complaint the bare minimum of facts that are sufficient to give the defendant notice of the plaintiff’s claim, the procedure is much different on a motion for summary judgment. If respondents later move for summary judgment and petitioner does nothing more than restate his allegations in affidavit form, I will have to dismiss petitioner’s case. Fed.R.Civ.P. 56 requires parties to “set forth specific facts which show that there is a genuine issue for trial.” See also Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“The object of [summary judgment] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.”) Petitioner will have to present sufficient evidence to permit a reasonable jury to find in his favor.
In addition, I note that because the settlement in Jones ‘El did not resolve the issue of liability on the conditions of confinement claim, it will be necessary for petitioner to establish respondents’ liability as well as his damages in order to prevail ultimately on this claim. Further, petitioner is limited in the relief that he can obtain with respect to any of the conditions certified for class treatment and addressed by the settlement agreement in Jones ‘El. These include the conditions regarding cell temperatures, constant monitoring and illumination and lack of access to the outdoors. In approving the agreement, I concluded that it was fair, reasonable and lawful. See Jones El’ v. Litscher, 00–C–421–C, Order dated March 28, 2002, dkt. # 207, at 8. Therefore, petitioner cannot obtain injunctive relief on these claims
4

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
and can obtain monetary damages only for conduct occurring before March 28, 2002, the date I approved the settlement agreement. This also means that in acquiring evidence to prove these claims, petitioner should focus solely on evidence showing his conditions as they existed before March 28, 2002. To the extent that petitioner believes that respondents have not been complying with the settlement agreement since it was approved, he should direct his concerns to the monitor.
*7 Because I did not certify for class treatment the issue of using food as punishment and because the settlement agreement did not address the reasonableness of inmate strip searches, petitioner is not limited in the relief he may seek on those two claims.
D. Motion for Appointment of Counsel
In determining whether counsel should be appointed, I must first find that plaintiff made reasonable efforts to retain counsel and was unsuccessful or that he was precluded effectively from making such efforts. Jackson v. County of McLean, 953 F.2d 1070 (7th Cir.1992). Petitioner must provide the court with the names and addresses of at least three lawyers that he has asked to represent him in this case and who have declined to take the case before I can find that he has made reasonable efforts to secure counsel. Petitioner suggests that this requirement should not apply to him because “[t]he court is well aware that the plaintiff has contacted numerous attorneys concerning representation.” However, petitioner is not excused from the requirements under Jackson simply because he has been unsuccessful in finding counsel in previous cases. The court of appeals did not indicate in Jackson that the only time pro se parties must look for representation is the first time they file a claim.
Even if petitioner had made reasonable efforts to obtain counsel, I still could not appoint counsel for him at this early stage. Appointment of counsel is not appropriate unless the pro se plaintiff is unable to represent him or herself given the complexity and the presence of counsel would make a difference in the outcome of his lawsuit. Zarnes v. Rhodes, 64 F.3d 285 (7th Cir.1995) (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). It is simply too early in the lawsuit to make these determinations. Petitioner has shown in this case and in previous actions that he is capable of drafting motions and making legal arguments. I am convinced that petitioner is capable of representing himself at least in the earliest stages of litigation.

ORDER
IT IS ORDERED that
1. Petitioner Berrell Freeman’s request for leave to proceed in forma pauperis is GRANTED on his claims that respondents Jon Litscher and Gerald Berge violated his rights (1) to be free from unreasonable strip searches under the Fourth Amendment and from excessive force under the Eighth Amendment; and (2) to be free from cruel and unusual conditions of confinement under the Eighth Amendment relating to extreme cell temperatures, food deprivation, and sensory deprivation and social isolation stemming from lack of access to the outdoors, constant illumination in his cell and constant video monitoring.
2. Petitioner’s request for leave to proceed is DENIED with respect to his claim that respondents violated his right to due process under the Fourteenth Amendment by restricting the paper he receives and on his claim that respondents violated his Fourth Amendment rights by searching his cell. These claims are DISMISSED as legally frivolous.
*8 3. Petitioner’s motion for appointment of counsel is DENIED.
4. For the remainder of this lawsuit, petitioner must send respondents a copy of every paper or document that he files with the court. Once petitioner has learned what lawyer will be representing respondents, he should serve the lawyer directly rather than respondents. The court will disregard any documents submitted by petitioner unless petitioner shows on the court’s copy that he has sent a copy to respondent or to respondent’s attorney.
5. Petitioner should keep a copy of all documents for his own files. If petitioner does not have access to a photocopy machine, he may send out identical handwritten or typed copies of his documents.
5. The unpaid balance of petitioner’s filing fee is $147.79; this amount is to be paid in monthly payments according to 28 U.S.C. § 1915(b)(2) when the funds become available.
	  

5

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)

2003 WL 23167292 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03–C–0021–C. | March 20, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion

ORDER
CRABB, J.
*1 Plaintiff Berrell Freeman has filed a motion for a default judgment. He argues that defendants Gerald Berge and Jon Litscher have failed to answer his complaint within the time prescribed by Fed. R. Civ. P 12(a)(1)(A), which requires a defendant to file and serve an answer within 20 days after being served with the summons and complaint. The problem with this argument is that Fed.R.Civ.P. 12(a)(1)(A) does not apply to defendants’ answer. Because defendants waived personal service under Fed.R.Civ.P. 4(d) and accepted service by mail, they have 60 days from the date of service (February 19, 2003) in which to answer plaintiff’s complaint. Fed.R.Civ.P. 12(a)(1)(B). Accordingly, IT IS ORDERED that plaintiff’s motion for a default judgment is DENIED.
	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23208945 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03–C–0021–C. | June 19, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendant.
Opinion
ORDER
CRABB, J.
*1 In an order dated June 3, 2003, I granted defendants’ motion to dismiss plaintiff’s claim that defendants subjected him to strip searches that were both unreasonable and constituted a use of excessive force because plaintiff had failed to exhaust his administrative remedies on this claim. Also, I granted defendants’ motion to dismiss plaintiff’s claim that he was denied social interaction and sensory stimulation by a combination of certain conditions of his confinement, after concluding that defendants are entitled to qualified immunity on this claim. I denied defendants’ motion to dismiss plaintiff’s claim that defendants denied him adequate food in violation of the Eighth Amendment. Still pending in this lawsuit is plaintiff’s claim that defendants violated his Eighth Amendment right to be free from extreme cell temperatures.
Now before the court is plaintiff’s motion for reconsideration of that part of the June 3, 2003, decision in which I granted defendants’ motion to dismiss in part and a motion titled “Motion for Court Order/Intervention HELP!” I construe the latter motion as a motion for an order directing prison officials to return plaintiff’s legal papers relating to this case.
Plaintiff’s motion for reconsideration will be denied. The arguments plaintiff makes in support of his present motion are the same thorough and concise arguments he made in his brief in opposition to defendants’ motion. I

have already considered these arguments carefully and remain convinced that the conclusion I reached in the June 3 order is not legally or factually erroneous.
With respect to plaintiff’s motion for an order directing prison officials to return his legal papers to him, I will stay a decision until defendants provide information about the facts relating to this situation.
Plaintiff states that for approximately two weeks, he “smeared, smashed and spread” blood and feces on his cell wall. In response to this behavior, prison officials placed plaintiff in a clinical observation cell. While plaintiff was in observation, all of his personal belongings except his television, mattress and reading glasses were removed from his former cell. When he returned to his cell on June 4, plaintiff asked for his legal property, including all of his papers relating to this case. Defendants have not returned the property to plaintiff. Plaintiff suggests that prison officials have no excuse for failing to return his papers because they were enclosed in a large legal envelope and were not “exposed [to] or tainted” by his excrement and blood.
When an inmate engages in destructive behavior and destroys or contaminates his own legal property, prison officials have no obligation to replace or return his papers. Plaintiff avoids saying whether the envelope containing his legal papers was contaminated with feces or blood. His statement suggests only that the papers inside the envelope were protected from his blood and feces and thus should have been returned to him. I would disagree, if that is the scenario. Prison officials have no obligation to handle any container or envelope covered in feces or blood to retrieve its contents. On the other hand, if the envelope containing plaintiff’s legal papers was in fact untainted by plaintiff’s antics, then prison officials may be subject to an order directing them to return the papers to him.
*2 Accordingly, I will allow defendants one week, or until June 26, 2003, in which to advise the court of the disposition of plaintiff’s legal property. If defendants advise me that the property was destroyed because it was contaminated by plaintiff’s blood or feces or both, then I will count the pages of docketed materials in the court’s file and advise plaintiff of the cost of obtaining another copy of the record from the court.
ORDER
IT IS ORDERED that
1) Plaintiff’s motion for reconsideration of the June 3,
1

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003, decision granting defendants’ motion to dismiss in part is DENIED; and
2) A decision is STAYED on plaintiff’s motion for an order directing prison officials to return plaintiff’s legal papers relating to this case.

Further, IT IS ORDERED that defendants may have until June 26, 2003, in which to advise the court and plaintiff what disposition has been made of his legal property.
	  

2

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23282509 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03-C-0021-C. | June 30, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendant.
Opinion
ORDER
CRABB, J.
*1 Two issues remain to be resolved in this case. The first is whether defendants subjected plaintiff to extreme cell temperatures in violation of his Eighth Amendment rights. The second is whether defendants denied plaintiff adequate food in violation of the Eighth Amendment. (In a recent communication regarding a discovery dispute, plaintiff expresses the belief that he also is litigating a claim that the food deprivation and excessive cell temperatures together deprived him of the basic human need for sensory stimulation and social interaction in violation of the Eighth Amendment. He is wrong. In an order dated June 3, 2003, I ruled that defendants are entitled to qualified immunity on plaintiff’s claim that a combination of conditions of his confinement worked together to cause him sensory deprivation and social isolation.)
On June 13, 2003, plaintiff filed a motion titled “Motion for Court Order/Intervention HELP!” In an order dated June 19, 2003, I construed this motion as a motion for an order directing prison officials to return plaintiff’s legal papers relating to this case and I stayed a decision on the motion to allow defendants to advise the court of the disposition of plaintiff’s legal papers. Defendants have submitted their response and the motion is once again before the court.
In his motion, plaintiff advised the court that for two

weeks, he engaged in destructive behavior in his cell by smearing, smashing and spreading blood and feces on his cell walls. Subsequently, he was taken from his cell and placed in clinical observation status. When he was returned to his cell, all that remained of his property was a mattress, television, and reading glasses. Plaintiff’s legal papers relating to this case were removed and have not been returned to plaintiff. According to defendants, plaintiff’s legal property was destroyed because plaintiff contaminated it with his own blood and feces.
Plaintiff denies that his property was contaminated. On June 25, 2003, he submitted a document titled “Motion to Turn Over/Submit Evidence,” in which he asks for an order requiring defendants to produce photographs he believes were taken of the damaged and contaminated cell so that he can show the court that his legal papers were unscathed by his rampage.
I conclude that at this point it makes no difference what the photographs would show. Defendants have represented that they have destroyed plaintiff’s legal property because it was contaminated. I cannot order defendants to return plaintiff’s property if it no longer exists. To avoid further delay in this lawsuit, I am enclosing to plaintiff with this order copies of (1) his complaint; (2) the magistrate judge’s preliminary pretrial conference order dated April 23, 2003, with its attachments; and (3) a copy of this court’s order of June 3, granting in part and denying in part defendants’ motion to dismiss. Also enclosed is a copy of the docket sheet in the case. If plaintiff believes he needs any other document listed on the docket sheet beyond those enclosed with this order in order to prosecute his two remaining claims, he will have to identify them for the court and pay for them at the rate of $.10 a page.
ORDER
*2 IT IS ORDERED that
1) Plaintiff’s motion for an order directing prison officials to return plaintiff’s legal papers relating to this case is DENIED. A copy of the papers in the court’s record that the court deems necessary for plaintiff to prosecute the two claims remaining in this lawsuit are enclosed to plaintiff with this order. If plaintiff wants additional portions of the record, he will have to identify on the enclosed docket sheet the documents he wants and pay for them at the rate of $.10 a page.
	  
1

Freeman v. Berge, Not Reported in F.Supp.2d (2003) 2

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23315888 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants. No. 03–C–0021–C. | July 25, 2003.
Attorneys and Law Firms David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion
ORDER
CRABB, J. *1 Plaintiff is proceeding in this action on his claims that defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment when they subjected him to extreme cell temperatures and inadequate food at the Wisconsin Secure Program Facility. Now plaintiff has filed a “Motion for Court to Appoint Experts,” in which he asks the court to appoint an expert to testify as a witness for plaintiff on the subject

of the heating and ventilation system at the Facility and another expert to testify on the subject of “psychological and physical torture.”
Rules 706 and 614 of the Federal Rules of Evidence give district courts discretion to appoint an impartial expert witnesses in a civil case to assist the court in evaluating complex scientific evidence. See McKinney v. Anderson, 924 F.2d 1500 (9th Cir.1991) (district court might appoint impartial expert to help court evaluate scientific evidence on health effects of exposure to secondary cigarette smoke). In that instance, the court has the discretion to apportion the costs of the expert to one side. Ledford v. Sullivan, 105 F.3d 354, 361 (7th Cir.1997).
In this case, however, plaintiff is asking the court to obtain expert testimony to assist him in presenting his claim, rather than to assist the court to evaluate conflicting evidence. As necessary as the testimony of experts might be to the prosecution of plaintiff’s claims, the funds to pay for his expert are not available under 28 U.S.C. § 1915 and are not compelled under Fed.R.Evid. 614 or 706(b). Therefore, I will deny plaintiff’s request for the court’s assistance in obtaining expert evidence.
ORDER
IT IS ORDERED that plaintiff’s request that the court appoint expert witnesses to testify on his behalf is DENIED.
	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23220727 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants. No. 03–C–0021–C. | Aug. 26, 2003.
Attorneys and Law Firms David J. Harth, for Plaintiff. Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants. Opinion
ORDER
CRABB, J. *1 Presently before the court are the following motions:
1. Plaintiff’s July 31, 2003 “Motion for Reconsideration” of the magistrate judge’s July 30, 2003 decision on plaintiff’s motion to compel discovery (Dkt. # 45);
2. Plaintiff’s “Objection to Court Order of July 30 and Motion to Reconsider,” dated August 3, 2003 (Dkt.# 47);
3. Plaintiff’s “Motion for Court Order that Witnesses be Brought to Court at Time of Trial,” dated August 3, 2003 (Dkt.# 49);
4. Plaintiff’s second “Motion for Order to Stop/Cease and Desist Retaliation” dated August 10, 2003 (Dkt.# 91);
4. Plaintiff’s “Motion for Filing and Information,” dated August 11, 2003 (Dkt.# 53);
5. Plaintiff’s “Notice/Clarification to Court,” dated August 12, 2003 (Dkt. # 68);
6. Plaintiff’s “Notice to Court with Proof of Obstruction by Defendants,” dated August 15, 2003 (Dkt.# 85); and
7. Plaintiff’s “Motion for Appointment of Counsel,” dated August 15, 2003 (Dkt.# 86).
In addition, plaintiff has filed several discovery motions

and a motion for summary judgment, together with supporting documents and two separate mailings of affidavits in support. The first group of affidavits (Dkt.58–67) accompanied plaintiff’s motion for summary judgment and were filed on August 14, 2003. The second packet of affidavits (Dkt.71–84) were filed on August 21, 2003. I have scanned plaintiff’s proposed findings of fact in support of his motion for summary judgment to determine whether plaintiff cites to these latter affidavits to support proposed findings of fact and find that he does. Therefore, they will be considered in connection with plaintiff’s motion for summary judgment.
There are only two claims remaining to be resolved in this lawsuit: 1) whether, before March 28, 2002 (the date the settlement agreement was reached in Jones El’ v. Litscher, 00–C–421–C) plaintiff was subjected to cell temperatures at the Wisconsin Secure Program Facility that violated the Eighth Amendment; and 2) whether plaintiff has been and is being deprived of food in violation of the Eighth Amendment.
Filings Related to Plaintiff’s Motion for Summary Judgment As noted above, plaintiff filed a motion for summary judgment on August 14, 2003. At that time, he admitted he had not served it on defendants. Instead, he filed a “Motion for Filing and Information” (Dkt.# 53), in which he complained that he had asked twice for copies at the prison and that his requests had been denied. He asked the court to advise him how much the court would charge for two copies of the motion, brief and supporting documents.
The next day, on August 15, 2003, plaintiff filed a “Notice of Clarification to Court” (Dkt.# 68). In that document, plaintiff stated that he had served defense counsel with a copy of all of his hand-written documents and that the only documents he failed to serve are the affidavits of other prisoners and “typewritten documents” attached to his brief. He asked again to be allowed to purchase copies of these papers from the court.
*2 On August 21, 2003, plaintiff submitted a check for $35 and again requested two copies of his motion for summary judgment. This time, he specified that he wanted copies of all supporting documents, including “briefs, affidavits, etc.” Also on August 21, 2003, plaintiff filed a document titled “Notice to Court,” in which he stated that he had served defendants with the second batch of affidavits.
Not surprisingly, defense counsel has written a letter dated August 18, 2003, requesting guidance about how he should proceed with respect to plaintiff’s motion for
1

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
summary judgment since he does not have all the supporting documents.
Plaintiff’s motion for summary judgment consists of a one-page motion, 43 pages of proposed findings of fact, a six-page brief, an 11–page personal affidavit, and 108 pages of exhibits and affidavits from other inmates. Counsel for defendants has received some but not all of these documents. Because plaintiff has paid for them, I have made two copies of the motion and all of the supporting papers, including the brief and proposed findings of fact. On this one occasion, I am sending one copy of the complete motion and supporting documents to defense counsel directly and sending the other copy to plaintiff. Below, I will set a schedule for briefing the motion.
Plaintiff should be aware that this court does not have sufficient personnel or financial resources to make copies for the parties in a lawsuit on a regular basis. With one exception, plaintiff has not provided this court with a copy of the requests he made to prison officials for photocopies and a copy of their responses to his requests showing that they were unwilling to copy his documents. The one document he did submit is attached to his “Notice to Court with Proof of Obstruction by Defendants” (Dkt.# 85), and shows only that the prison refused to copy “court orders” as “not approved on legal loan extension.”
It is unnecessary for plaintiff to send this court copies of its own orders or the orders of other courts that have not been published. Thus, plaintiff’s “proof of obstruction” is not proof of obstruction at all. In this regard, I note that plaintiff has not limited his submissions to those he needs to prove his claims. A great many of the affidavits he has solicited from other inmates fail to shed light on the temperatures plaintiff was subjected to before March 28, 2002, or on what dates and for how long plaintiff was deprived of food. Instead, the majority of the affidavits are made on the personal knowledge of the affiants about what happened to them and not to plaintiff.
I note as well that plaintiff has jumped the gun in filing his motion for summary judgment. According to the magistrate judge’s preliminary pretrial conference order, dispositive motions are not due until September 25, 2003. Perhaps if plaintiff had waited to file his motion until closer to the deadline, he would have accumulated funds with which to pay for copies of his submissions instead of relying on legal loan extensions or the court.
Plaintiff’s Objections to the Magistrate Judge’s July 30, 2003 Order *3 Plaintiff has filed two motions objecting to the magistrate judge’s July 30, 2003 order granting in part

and denying in part his motion to compel discovery (Dkt.45 and 47). I construe these submissions as motions for reconsideration of the July 30 order pursuant to 28 U.S.C. § 636(b)(1)(A).
In deciding whether to reconsider any pretrial matter determined by a magistrate judge, the court must find that the magistrate judge’s order is clearly erroneous or contrary to law. I have reviewed the rulings plaintiff challenges and conclude that with one minor exception, the magistrate judge’s disposition of plaintiff’s motion to compel was entirely correct and well within the magistrate judge’s discretion. The exception is the magistrate judge’s decision that defendants need not produce for inspection the documents identified in plaintiff’s document request No. 16 as “all documents labeled ‘Wisconsin Department of Corrections Mission Statement’ and related documents.” Plaintiff points out that the magistrate judge’s decision to deny his motion to compel defendants to produce documents in response to this request was grounded on the magistrate judge’s assumption that the request related strictly to the totality of conditions of confinement claim that was dismissed from this lawsuit. Plaintiff contends that this document relates directly to his two remaining claims. Although the document has dubious value to plaintiff in ultimately proving his entitlement to relief on the remaining claims, I conclude that it was error for the magistrate judge to hold that the documents are relevant only to plaintiff’s dismissed claims.
Plaintiff’s Motion for Witnesses at Trial Plaintiff has moved for an order that witnesses be brought to court at the time of trial (Dkt.# 49). This motion will be denied as premature. If the case goes to trial, plaintiff can refile his request as a motion for writs of habeas corpus ad testificandum in accordance with this court’s Procedures for Calling Witnesses to Trial, a copy of which is attached to this order.
Plaintiff’s Second Motion to Cease Retaliation Plaintiff’s second “Motion to Stop/Cease and Desist Retaliation” (Dkt.# 91) will be denied as well. In this motion, plaintiff asserts that a Captain Bigger retaliated against him by confiscating a piece of his outgoing mail on August 5, 2003 and issuing him a conduct report. Plaintiff states that the letter was addressed to Diane Block, whom he “may” call to testify in this case and contained a request that Ms. Block call someone at the law office of Cannon and Dunphy. He contends that confiscation of the letter is an attempt to damage his case.
In his first “Motion to Stop/Cease and Desist Retaliation,” plaintiff alleged that Captain Julie Biggar had confiscated
2

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
letters that he wanted to send to Diane Block and Alicia Miller and issued him a conduct report because he placed letters to different people in one envelope. At that time, plaintiff asked for an order enjoining retaliation against him. In an order dated August 12, 2003, I denied the motion because plaintiff had not shown that Captain Biggar took adverse action against him because he was exercising a constitutional right, such as his right to gain access to the courts and, more important, because I was unwilling to entertain a claim of retaliation in the context of this lawsuit short of a showing that prison officials were physically preventing plaintiff from prosecuting this action. Nothing in plaintiff’s second motion convinces me that Biggar’s confiscation of plaintiff’s August 5 letter is preventing him from proceeding in this case. Indeed, he has filed close to two hundred pages of documents in this action in the past month. If plaintiff believes that Biggar is retaliating against him for exercising a constitutional right, he will have to file a separate lawsuit on this issue.
Plaintiff’s Motion for Appointment of Counsel *4 Finally, plaintiff has moved for appointment of counsel to represent him in this action. In an order dated June 3, 2003, I gave thorough consideration to plaintiff’s earlier motion for appointment of counsel. For the reasons stated in that order, plaintiff’s newest motion for appointment of counsel will be denied.
ORDER
IT IS ORDERED that

1. Plaintiff’s “Motion for Filing and Information” (Dkt.# 53) is GRANTED. Enclosed to plaintiff and defendants is a copy of plaintiff’s motion for summary judgment, together with all of the supporting papers, including the brief and proposed findings of fact.
2. The parties are to observe the following schedule for briefing plaintiff’s motion for summary judgment:
Defendants may have until September 15, 2003, in which to respond to the motion.
Plaintiff may have until September 25, 2003, in which to serve and file a reply.
3. Plaintiff’s motions pursuant to 28 U.S.C. § 636(b)(1)(A) for reconsideration of the magistrate judge’s July 30, 2003 order (Dkt.45 and 47) are GRANTED with respect to plaintiff’s document request No. 16. Defendants are to make the Department of Correction’s mission statement and “related documents” available to plaintiff for inspection. In all other respects, plaintiff’s motions for reconsideration are DENIED.
4. Plaintiff’s “Motion for Court Order that Witnesses be Brought to Court at Time of Trial” (Dkt.# 49) is DENIED as premature;
5. Plaintiff’s second “Motion to Stop/Cease and Desist Retaliation” (Dkt.# 91) is DENIED; and
6. Plaintiff’s motion for appointment of counsel (Dkt.# 86) is DENIED.
	  

3

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)

2003 WL 23120065 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03–C–0021–C. | Sept. 22, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendant.
Opinion
ORDER
CRABB, J.
*1 On September 18, 2003, plaintiff filed a “Motion for Clarification” and a “Motion for Joinder.” In the motion for clarification, plaintiff asks whether his claims that he was subjected to unconstitutional cell temperatures at the Wisconsin Secure Program Facility and that he was deprived of food are restricted to injuries he allegedly incurred before March 28, 2002 (the date the settlement agreement was reached in Jones El’ v. Litscher, 00–C–421–C). This is ground I have covered twice before in orders entered in this case on June 3, 2003 and February 12, 2003. The restriction applies to his cell temperatures claim; it does not apply to his food deprivation claim. To the extent that plaintiff appears to be requesting modification of the earlier decisions restricting his cell temperatures claim, I decline to rehash those decisions at this late date.

Also, plaintiff’s motion for joinder will be denied. In this motion, plaintiff requests permission to add the Wisconsin Secure Program Facility maintenance department and Samuel A. Nelson as defendants. Plaintiff alleges that defendant Berge has admitted to relying on the maintenance department and Samuel Nelson in making “building maintenance decisions” and that Nelson is responsible for “supervision of all construction in the institution.”
It is well past the time for plaintiff to amend his complaint to add defendants. The parties are briefing cross motions for summary judgment and both sides have filed all but their reply briefs. If the undisputed facts reveal that the cell temperatures at the facility were so severe as to cause plaintiff physical harm and not mere discomfort, and that one or the either or both defendants knew of these extreme conditions and allowed them to exist, then he will be entitled to monetary relief. Neither Berge nor Litscher has advanced an argument that he lacked personal responsibility for insuring that the heating and cooling system at the prison operated in a manner that would maintain the safety and health of the prison’s inmates. Plaintiff does not suggest that he has discovered evidence that the entire “maintenance department” and Samuel Nelson had control over defendant Berge’s and Litscher’s ability to control allegedly unconstitutional cell temperatures. He contends only that defendant Berge relied on maintenance staff and Nelson in making building maintenance decisions. This is not enough to make the maintenance staff and Nelson liable to plaintiff.
ORDER
IT IS ORDERED that plaintiff’s motions for clarification and for joinder are DENIED.
	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)

2003 WL 23095636 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03–C–0021–C. | Sept. 23, 2003.
Attorneys and Law Firms
Berrell Freeman, pro se, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion

CRABB, J.

ORDER

*1 Plaintiff’s motion for reconsideration of this court’s order of August 26, 2003, denying as premature his motion for witnesses at trial is DENIED. If the case survives a motion for summary judgment, plaintiff is free at that time to renew his motion. Contrary to plaintiff’s belief that he will have to refile his list of witnesses, he may simply refer the court to the earlier filed motion (Dkt.# 49) for the names of the persons he wishes present at trial.
In the past, I have tolerated abusive language in plaintiff’s filings. However, plaintiff’s latest submission reveals a highly disrespectful tone and a significant escalation in plaintiff’s use of vulgar language. Although I can understand that plaintiff is disappointed and frustrated by some of the rulings in his case, this court nevertheless expects the parties to comport themselves with dignity and to be respectful in their communications with the opposing parties and the court. In the future, I will disregard any communication plaintiff files with the court in which he uses belligerent vulgarities to describe actions taken by the court or opposing counsel.
	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23315889 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants. No. 03-C-0021-C. | Sept. 24, 2003.
Attorneys and Law Firms David J. Harth, for Plaintiff. Corey F. Finkelmeyer, Assistant Attorney General,

Madison, WI, for Defendants. Opinion
ORDER
CRABB, J. *1 Plaintiff’s “Motion to Revisit the Denial of Plaintiff’s Claim” that he was deprived of sensory stimulation and social interaction by a combination of conditions, including lack of outdoor recreation, is DENIED.
	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23282531 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03–C–0021–C. | Dec. 3, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer Assistant Attorney General Madison, WI, for Defendant Gerald Berge.
Opinion
ORDER
CROCKER, Magistrate J.
*1 The only two claims remaining in this lawsuit are plaintiff Berrell Freeman’s allegations of unconstitutionally extreme cell temperatures, and the cruel and unusual denial of adequate food as a punishment. Virtually all information relevant to these claims now is in the record as a result of defendants’ fully-briefed summary judgment motion. This has not prevented plaintiff from filing myriad motions to broaden his claims and to obtain additional discovery.
Earlier this fall the court entered several orders dealing with clusters of plaintiff’s motions, see dkts. 92 (disposing of six motions) and 94 (eight motions).1 It is now early December and enough new golden-hued sheaves have wafted through the door to merit yet another such order: today’s chore is to address plaintiff’s motions docketed as 108, 109, 110, 117, 118, 119, 120, 121, 122 and 123. For the reasons stated below, all are denied.
In September, Assistant Attorney General Finkelmeyer gave up even trying to respond to each of plaintiff’s discovery motions. He summarized his position in a September 4, 2003 letter to the court (filed in the correspondence folder) in which he contended that he had more than met all of his discovery obligations in this lawsuit by virtue of the information disclosed in defendants’ proposed findings of fact in support of summary judgment; even so “the defendants fully anticipate that the plaintiff will be either wholly or

partially dissatisfied with defendants’ solution to these discovery issues.” AAG Finkelmeyer was correct, plaintiff has filed the motions listed above, and the defendants have not even bothered to respond to them, presumably because they are satisfied that they have made their record and because they are tired of playing plaintiff’s game. Having covered most of this ground before, I will not spend much time on motions that are repeats, immaterial variations of their predecessors, or clearly beyond the ken of allowable discovery in this case.
108 is a motion for sanctions, asking this court to strike the affidavit of defendant Gerald Berge offered in support of defendants’ motion for summary judgment. Although plaintiff invokes F.R.Civ.Pro. 11, there is no indication that he provided defendant Berge with the required notice, but I doubt Berge would have withdrawn the contested portion of his affidavit. This court’s practice is to stay a ruling on a motion to strike a submission relevant to summary judgment until the court rules on the underlying summary judgment motion. Here, plaintiff simply disputes Berge’s interpretation of certain portions of the prisoner handbook and practices flowing therefrom. This is not a ground to strike an affidavit; at best, it could be viewed as a dispute over a proposed finding of fact. There is no need to stay a ruling on the motion to strike: 108 is DENIED. Nonetheless the court will consider plaintiff’s allegations when considering defendants’ proposed findings of fact.
*2 109 is plaintiff’s motion for a response from defendants as required by this court’s August 29, 2003 order; 110 is a fully-contained subset, demanding production of all information requested in his July 30 discovery demand. Defendants, in their September 4 letter, quoted above, explicitly responded to the court’s order by adopting their summary judgment submissions as their discovery response. It’s an unorthodox approach, but in this situation it works: every relevant fact in defendants’ possession that plaintiff wants disclosed now is of record. Undoubtedly plaintiff disputes many of defendants’ claims, but from a discovery perspective, plaintiff is not entitled to anything else. It’s not as if defendants would have or could have provided any different or additional information in response to plaintiff’s discovery demands; in fact, defendants’ presentation of the facts in their submissions to the court undoubtedly is a smoother narrative that ought to be more useful to plaintiff. So, 109 and 110 are DENIED.
117 is a motion asking this court to order defendants to stop interfering with plaintiff’s mail seeking discovery in this case. According to plaintiff, on August 15, 2003 he put into the prison mail stream a request for documents to someone named Marie Morris and asked her to mark her return envelope “legal.” According to plaintiff, on
1

Freeman v. Berge, Not Reported in F.Supp.2d (2003)

September 24, 2003 he received a notice of non-delivery for the letter. It is not entirely clear, but from context, it seems that the prison decided not to deliver the letter, but waited over a month before advising plaintiff. Plaintiff claims that although the prison has a right to inspect his mail, this particular letter did not violate any DOC rules and it should have been delivered. Plaintiff then sent a flurry of letters to defendant Berge demanding that the letter be sent; according to plaintiff, Warden Berge declined to answer, at least in part because of the institutional policy that “correspondence to [Warden Berge] on paper supplied to you as part of the ‘legal loan’ process will not be acknowledged, read or responded to.” See Dkt. 117 at ¶ 7. Plaintiff complains that this is not true, and that he is entitled to have his letter delivered. This is a circumstance in which a brief response from defendants would have been helpful. Nonetheless, I am not prepared to conclude that plaintiff automatically is entitled to delivery of his letter to Morris. There are legitimate reasons for prisons to control outgoing prisoner mail, and plaintiff’s proffer in his motion does not provide enough information for me to determine that he is entitled to any of the relief he is requesting. If plaintiff wants the letter delivered, he must explain who Marie Morris is, what documents he requested of her, and why this qualifies as legal mail relevant to this lawsuit. I will then reconsider this issue. So that the pending motion doesn’t linger in limbo, 117 is DENIED WITHOUT PREJUDICE.
*3 118 and 120 are simply follow-ups to plaintiff’s previously-denied motions, except with requests for harsher sanctions. Having reviewed the case file and all the submissions, I am satisfied that although plaintiff does not haveindeed never will have-everything he wants from the defendants, the defendants have complied with their discovery and disclosure obligations in the instant lawsuit. 119 is a motion to strike all of defendants’ summary judgment exhibits because they are not authenticated to be accurate, complete or true. Actually, ICE Ellen Ray has sworn that the exhibits are “true and exact copies” of the originals, which suffices. See Affidavit, dkt. 103, at 2. In sum, 118–120 are DENIED.
121 is plaintiff’s motion to compel sworn answers from both defendants to his September 26, 2003 interrogatories. According to plaintiff, all he got was an

unsigned, answer from one defendant (Berge). Given the posture of this particular case, plaintiff’s proffer is insufficient to establish a discovery violation. Without further specification from plaintiff as to what he actually requested in his September 26 interrogatories and what defendant Berge actually said in response, there is no basis for me to compel defendant to disclose any additional information. On the record before the court 121 is DENIED.
122 is another motion to compel based on plaintiff’s irritation with defendants’ objections to his various September 2003 discovery requests. Plaintiff demanded “absolutely any and all” inmate handbooks, clinical file records and incident reports about plaintiff. Plaintiff also requested a number of new admissions from defendants to which defendants objected on relevance grounds. Having considered all of plaintiff’s various requests for production and admissions, I conclude that defendants are right and plaintiff is wrong. The issues remaining in this lawsuit are extremely narrow and plaintiff’s tenacious attempts to broaden them and to obtain related discovery have been, are, and will continue to be absolutely unavailing. Plaintiff has access to the information he needs, so he is not entitled to the relief he seeks in this motion. 122 is DENIED.
123 is plaintiff’s motion to compel additional responses to plaintiff’s October 13, 2003 request for production of documents. Plaintiff sought all records of all visits he received at SMCI/WSPF, and well as all records that showed plaintiff regularly participated in Ramadan. Given the nature of his two remaining claims, there is nothing relevant about this information and defendants were within their rights to object. 123 is DENIED.
ORDER
IT IS ORDERED that plaintiff’s motions docketed as 108, 109, 110, 117, 118, 119, 120, 121, 122 and 123 all are DENIED.
	  

Footnotes

1

Not to mention the orders docketed as 9, 22, 24, 28, 38, 41, 42, 46, 52, 114 and 115 that dealt only with one or two motions each.

Occasionally plaintiff wins a portion of a motion, but not often enough to justify his obsessive and repetitive motions practice.

	  
2

Freeman v. Berge, Not Reported in F.Supp.2d (2003) 3

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2003)
2003 WL 23272395 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03-C-0021-C. | Dec. 17, 2003.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion
OPINION AND ORDER
CRABB, J.
*1 This prisoner civil rights action under 42 U.S.C. § 1983 presents two difficult questions. First, do prison officials violate the Eighth Amendment when they deny food to an inmate for several days because he has failed to comply with the rules for meal delivery? Second, at what point do severe cell temperatures become cruel and unusual punishment? Presently before the court are plaintiff Berrell Freeman’s and defendants Gerald Berge’s and Jon Litscher’s motions for summary judgment on both of these issues.
I conclude that there are genuine issues of material fact with respect to plaintiff’s claim that his Eighth Amendment rights were violated when he was deprived of food. Although an inmate’s failure to comply with prison rules is a relevant consideration in determining whether a defendant was deliberately indifferent to the inmate’s health, I cannot conclude that it insulates a defendant from liability. To rule otherwise would be inconsistent with Supreme Court precedent and holdings of the majority of lower courts and would allow prison officials to withhold food from inmates to the point of death. A reasonable jury could find from the undisputed facts that plaintiff was subjected to a substantial risk of serious harm to his health and that defendant Berge, as the prison’s warden, was deliberately indifferent to that risk. Accordingly, both plaintiff’s and defendant Berge’s motion for summary judgment will be denied with respect to this claim. However, because there is no evidence in

the record that defendant Litscher was personally involved in denying food to plaintiff or in enacting the policy under which the deprivation occurred, I will grant Litscher’s motion for summary judgment on this claim.
With respect to plaintiff’s claim of extreme cell temperatures, I will grant defendants’ motion for summary judgment. As discussed more fully below, I find it troubling that defendants took almost no precautions to protect inmates from excessive heat in the summers of 2000 and 2001. However, although it is clear that plaintiff was subjected to uncomfortable conditions, plaintiff has not adduced sufficient evidence to allow a reasonable jury to find that he was subjected to cruel and unusual punishment.
In his brief and in his proposed findings of fact, plaintiff raises additional issues regarding inadequate medical care at the prison and the deprivation of social interaction and sensory stimulation. In addition, he argues that he has been subjected to atypical and significant hardships in violation of the due process clause. Plaintiff did not allege inadequate medical care in his complaint. Also, in previous orders, I dismissed plaintiff’s due process claim under 28 U.S.C. § 1915 because it was legally frivolous and I granted defendants’ motion to dismiss plaintiff’s social isolation and sensory deprivation claim because defendants were entitled to qualified immunity on that claim. Therefore, I have not considered any evidence or arguments related to those claims or to any claims other than those of food deprivation and extreme cell temperatures.
*2 From the parties’ proposed findings of fact and the record, I find that the following facts are undisputed.
UNDISPUTED FACTS
Plaintiff Berrell Freeman is an inmate at the Wisconsin Secure Program Facility in Boscobel, Wisconsin, where he has been incarcerated since December 1999. Defendant Gerald Berge has been the warden of the Secure Program Facility since 1999. He is responsible for the overall administration and operation of the prison and is familiar with the security policies in effect there. Defendant Jon Litscher was Secretary of the Wisconsin Department of Corrections until 2003.
A. Food Deprivation
The policies and procedures of the Secure Program
1

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
Facility are set out in a handbook that is given to all of the inmates. One of these policies regulates the behavior of inmates during meal delivery, as follows. When the meals are about to be delivered, an officer will announce over the public address system that meals will be distributed. Before inmates may receive their meal, they must put on trousers, turn on their light and stand in the middle of their cell in full view of the officer delivering the meal. The purpose of the rule is to prevent inmates from exposing themselves to staff. (If necessary, an officer can turn on the light with a switch outside the cell.) When an inmate fails to comply with any one of these requirements, staff does not give him his meal. Instead, the inmate’s behavior is recorded as a “refusal” to accept his meal. If an inmate complies with the rules, he will receive three meals a day.
Plaintiff was denied meals on various occasions in 2000, 2001 and 2002, for failing to comply with the meal delivery requirements. When plaintiff missed meals, he was not monitored by health services staff any more often than usual.
In November 2001, a doctor in the health services unit ordered that plaintiff be given double supper portions until January 31, 2001. In December 2001, the same doctor discontinued plaintiff’s double supper portions and ordered that plaintiff be given double lunch portions for the next three months. In January 2002, a nurse in the health services unit placed plaintiff on a “high protein, high calorie diet” until March 4, 2002. In February 2002, a doctor from the health services unit placed plaintiff on the same diet until April 30, 2002. The special diet was continued until July 2002.
The Department of Corrections has a form titled “Not Eating or Drinking Information” that it provides to inmates to sign. It states: Not eating food or drinking fluids may cause short term or long term illness up to and including death.
Not eating or drinking anything may cause death in just a few days.
Drinking fluids and not eating is less dangerous, but can lead to serious illness if continued for days.
Body reactions to starving include: loss of body fluids, dizziness, lightheadedness, weakness, nausea, vomiting, tiredness, sluggishness, irritability, weight loss, low blood sugar, slow heart rate and low blood pressure.
*3 Starving can result in heart damage, kidney damage, and death. Depending on the length of starvation, damage to the heart and kidneys may be permanent.
Plaintiff has suffered from and received medication for

depression, sleep disturbances, frequent headaches, ulceration, nausea and acid reflux. In addition, plaintiff’s vision has deteriorated since he was transferred to the Secure Program Facility. In July 2001, plaintiff was treated at UW Hospital for pain in his chest. At times, plaintiff has difficulty breathing. He is often forgetful and confused. He has been placed on clinical observation because he attempted suicide and smeared blood, feces and urine all over his cell.
B. Cell Temperatures
1. Summer months Cells in the Secure Program Facility do not have windows. All of the cells have “boxcar” doors that are constructed of solid metal. Each cell includes vents for exhausting air in the cell and bringing in fresh air. Inmates are not permitted to sleep near the ventilation ducts. During the summer, temperatures in the cells are usually about the same as the outside air temperature. However, during periods of hot weather, cell temperatures may exceed the outside temperature because the prison’s concrete walls retain heat. This occurred in August 2001.
During August 2001, plaintiff was housed in the echo unit of the prison. He was not required to engage in any strenuous physical activity. If he wished, plaintiff could spend almost all of his time lying on his bed.
Generally, inmates are allowed to take three ten-minute showers a week. The water coming out of the showers is set at 110 degrees Fahrenheit. In August 2001, defendant Berge began allowing inmates to take an additional shower, but he discontinued this policy because it increased the humidity in the cells. (Showers are located in each of the cells.) At some point, the shower water temperature was reduced to 101 degrees.
Cells also include sinks, which have controls for “hot” and “cold.” The hot water is set at 110 degrees; the cold water temperature is 76 degrees. However, during hot weather, the “cold” water may rise a few degrees. Inmates may drink water from their sink whenever they choose. In addition, inmates may wet a towel or a t-shirt at the sink and wring out the water on themselves. However, plaintiff was not told he could do this until summer 2002.
Neither plaintiff nor any other inmate at the prison was hospitalized because of the heat in August 2001. Staff from the health services unit made “regular” rounds to check on the health of inmates during this time.
According to weekly checks conducted by the prison’s superintendent, during 2001, the highest recorded
2

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
temperature in plaintiff’s unit was 91.4 degrees Fahrenheit, which occurred on July 25, 2001. The temperature reached between 85 and 90 degrees during the weeks of June 14, 2001, June 29, 2001, July 18, 2001, August 2, 2001 and August 9, 2001. The recorded temperatures for the remaining weeks during this time period did not exceed 84 degrees. (Neither plaintiff nor defendants submitted records of the temperatures during summer 2000. However, I note that according to records of the National Climatic Data Center, available at http://www.ncdc.noaa.gov, the temperature in Boscobel, Wisconsin, exceeded 90 degrees only once in July and August 2000. The average high temperature for both months was between 82 and 83 degrees. See Del Raine v. Williford, 32 F.3d 1024, 1036 n. 4 (7th Cir.1994) (noting with approval district court’s order taking judicial notice of air temperatures of nearest airport for purposes of determining temperatures in the prison)).
*4 In July 2002, the Wisconsin Department of Corrections issued an internal management procedure titled “Heat Advisory.” It provided: Heat exhaustion can result when too much time is spent in a very warm environment, resulting in excessive sweating without adequate fluid and electrolyte replacement. This can occur ... indoors, with or without exercise. There is a high risk that the individual will continue on to a state of heat stroke.
Heat stroke occurs when the body becomes unable to control its temperature. The body’s temperature rises rapidly, the sweating mechanism fails and the body is unable to cool down. Body temperatures may rise to 106 degrees F or higher within 10 to 15 minutes. Heatstroke can result from over exposure to direct sunlight, with or without physical activity, or to very high indoor temperatures. It can cause death or permanent disability if emergency treatment is not given.
In addition, the heat advisory recommends that staff take various precautions once the heat index reaches 90 degrees, such as issuing advisories, increasing access to ice and advising inmates to drink more fluids.
Defendant Berge was not involved in the decision to build the prison without air conditioning and he does not have the authority to order that it be installed.
2. Winter months Inmates frequently complain about the cold in their cells. In October 2000, a prison official saw prisoners walking in their cells with blankets wrapped around them. Inmates were given extra blankets and thermal underwear to alleviate the effects of cold temperatures. In the winter, members of the prison staff wear sweaters and coats.

Between October 9, 2000, and December 29, 2000, the recorded weekly temperatute checks show that cell temperatures in plaintiff’s unit did not fall below 73 degrees. In 2001 and between January 2, 2002, and March 20, 2002, there were no cell temperatures in plaintiff’s unit recorded below 71 degrees.
DISPUTED FACTS
The parties dispute how many meals plaintiff has been denied for failing to comply with rules. According to plaintiff, he was denied the following meals: from January 11, 2001, to January 13, 2001, all meals; from April 23, 2001, to April 25, 2001, all meals; from July 6, 2001, to November 3, 2001, 242 meals; from April 5, 2002, to April 6, 2002, all meals; from June 29, 2002, to July 6, 2002, all meals.
According to defendants’ records, plaintiff missed 18 meals between July 1, 2002, and July 8, 2002 (out of a total of 24 meals). He received no meals on July 1, July 3, July 5, and July 6, 2002. In addition, defendants have recorded a number of isolated “refusals” throughout 2000, 2001 and 2002.
The parties also dispute whether plaintiff was placed on a special diet because of the adverse effects of being denied food.
OPINION
A. Food Deprivation
Prisoners forfeit many rights when they pass through the jailhouse gate. Shaw v. Murphy, 532 U.S. 223, 229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) ( “[S]ome rights are simply inconsistent with the status of a prisoner.”). They may not visit with family members whenever they choose, Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003), read the publications of their choice, Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), or even be free from random searches of their person, Peckham v. Wisconsin Dept. of Corrections, 141 F.3d 694, 697 (7th Cir.1998). However, despite the necessary restrictions on inmates’ freedom, the Eighth Amendment requires that prison officials provide them with humane conditions of confinement, which include the basic necessities of life, such as shelter, clothing, medical care and food. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128
3

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
L.Ed.2d 811 (1994); see also Jones ‘El v. Berge, 164 F.Supp.2d 1096 (W.D.Wis.2001) (concluding that social interaction and sensory stimulation are among life’s basic necessities). The question in this case is whether defendants satisfied their obligation to provide plaintiff with the basic necessity of food.
*5 Inmates do not have a right to receive the diet of their choice. Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir.2001); Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir.1994); see also Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.2002). An occasional missed meal does not violate the Eighth Amendment. Morrison v. Martin, 755 F.Supp. 683, 686 (E.D.N.C.), aff’d 917 F.2d 1302 (4th Cir.1990). However, a failure to provide an inmate with “nutritionally adequate food” will constitute a violation of the Eighth Amendment if it persists for an extended period. Antonelli v. Sheehan, 81 F.3d 1422, 1432 (7th Cir.1996); see also Hutto v. Finney, 437 U.S. 678, 683, 686-87, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (diet consisting of fewer than 1,000 calories each day could violate Eighth Amendment if maintained for substantial time period).
The question in a food deprivation case is generally the same as in any other case involving conditions of confinement, that is, whether the defendants were deliberately indifferent to a substantial risk of serious harm to the inmate’s health or safety. Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir.2001). In making this determination, “a court must assess the amount and duration of the deprivation.” Reed v. McBride, 178 F.3d 849, 853 (7th Cir.1999). “The more basic the particular need, the shorter the time it can be withheld.” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir.1982).
Plaintiff has presented evidence that he was denied food for three days in January 2001, for three days in April 2001, for two days in April 2002 and for eight days in June and July 2002. In addition, he avers that he was denied 242 meals between July and November 2001. Defendants dispute most of this evidence, but they admit that plaintiff was denied 18 meals between July 1, 2002, and July 8, 2002, and that he received no meals on July 1, July 3, July 5 and July 6.
Viewing the evidence in the light most favorable to plaintiff, I conclude that a reasonable jury could find that he was subjected to a substantial risk of serious harm to his health. In Reed, 178 F.3d at 853, the Court of Appeals for the Seventh Circuit concluded that the district court had erred in granting summary judgment to the defendants on a claim in which the plaintiff presented evidence that he had been denied food for three to five days. Plaintiff’s deprivation was comparably serious.
Decisions in other jurisdictions support a conclusion that

defendants are not entitled to judgment as a matter of law. See, e.g., Phelps v. Kapnolas, 308 F.3d 180 (2d Cir.2002) (prisoner stated claim under Eighth Amendment by alleging that he was given nutritionally inadequate food for two weeks); Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir.2000) (reversing grant of summary judgment for defendants on plaintiffs’ Eighth Amendment claim when there was evidence in record that plaintiffs had been denied “edible” food and “adequate” water for four days); Simmons v. Cook, 154 F.3d 805 (8th Cir.1998) (upholding district court’s conclusion that denial of four consecutive meals supported Eighth Amendment violation); Cooper v. Sheriff, Lubbock County, Texas, 929 F.2d 1078 (5th Cir.1991) (prisoner stated claim under Eighth Amendment by alleging that he was denied food for several days); Beckford v. Portuondo, 151 F.Supp.2d 204 (N.D.N.Y.2001) (denying defendants’ motion for summary judgment on plaintiff’s Eighth Amendment claim that he was denied two out of three meals each day for eight days); Williams v. Coughlin, 875 F.Supp. 1004 (W.D.N.Y.1995) (denying defendants’ summary judgment motion on claim that defendants violated Eighth Amendment by denying plaintiff food for two days).
*6 In one paragraph, defendants advance three arguments in support of their motion for summary judgment on this claim. They argue first that there is no evidence of weight loss. However, it is undisputed that plaintiff was repeatedly placed on special diets of more food and more calories. Although defendants dispute plaintiff’s averment that he was placed on these special diets to increase his weight as a result of food deprivation, I must accept plaintiff’s version of events on a motion for summary judgment. Butera v. Cottey, 285 F.3d 601, 605 (7th Cir.2002) (on motion for summary judgment, court must draw all reasonable inferences in favor of the non-moving party).
In any event, whether plaintiff can prove weight loss is an issue of damages, not liability. Defendants point to no authority that makes weight loss the touchstone of an Eighth Amendment food deprivation claim. They do not deny that going without food for several days could subject a prisoner to a substantial risk of serious harm, which is the ultimate question in an Eighth Amendment case. Williams, 875 F.Supp. at 1014 (stating that risk of denying food for two days “might well be regarded as obvious”); Gutierrez v. Peters, 111 F.3d 1364, 1373, 1372 (7th Cir.1997) (expert testimony on risk of harm not necessary if seriousness of risk would be obvious to lay person). In fact, the department’s own forms acknowledge that “not eating ... can lead to serious illness if continued for days.” At trial, if plaintiff is unable to prove that he suffered a physical injury as a result of his food deprivation, he may not be entitled to compensatory damages, at least for emotional harm. See 42 U.S.C. § 1997e(e). But even if plaintiff proves no physical injury, he may still receive injunctive relief, as well as nominal
4

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
and punitive damages. Calhoun v. Detella, 319 F.3d 936, 939-42 (7th Cir.2003); Doe v. Welborn, 110 F.3d 520, 524 n. 3 (7th Cir.1997).
Second, defendants suggest that plaintiff was not at a risk of harm because even when he went without meals for a substantial period of time, “he consistently accepted his snack bag.” Dfts.’ Br., dkt. # 99, at 5. In support of this allegation, defendants cite an entry in plaintiff’s “Behavioral Incident Form,” dated July 5, 2002, that states, “[Plaintiff] has been refusing a lot of his meals but accepts his snack bag on a regular basis.” Exh. # 104, at 76, attached to Aff. of Ellen Ray, dkt. # 103. Even assuming this record would fall into the business records exception of the rule against hearsay, I cannot consider this fact as undisputed because defendants did not include it in their proposed findings of fact and plaintiff has not had an opportunity to respond to it. Even if the fact was undisputed, it would not show that defendants are entitled to summary judgment. There is no evidence that the snacks alone would be enough to provide plaintiff with adequate nutrition. Further, the incident form addresses only the deprivation in early July 2002; plaintiff has presented evidence that he was denied food on many other occasions as well.
*7 Finally, defendants note that this case involves a twist because the denial of food was directly related to plaintiff’s own conduct. If plaintiff had complied with the prison rules, he would have received his meals. (Plaintiff has submitted an affidavit from another prisoner, who avers that “brothers” have been denied meals “because the staff passing them out didn’t like the way [the prisoners] talked or carried themselves. I personally was denied a meal by an officer because I didn’t smile and because he found my frown to be threatening.” Aff. of Raynell Morgan, dkt. # 63, at ¶ 4. This affidavit is irrelevant because it concerns the experience of another prisoner. Plaintiff has not adduced any evidence or even alleged that he was denied food for any reason other than failing to comply with prison rules.)
There is an instinctive appeal to the view that the Eighth Amendment simply does not apply to a case of food deprivation when the inmate himself “carries the keys to the cupboard.” It is difficult to conjure up sympathy for someone who is at least partly responsible for his own predicament. Certainly, prison officials are not constitutionally barred from using food to discipline inmates for rules violations, particularly when the misconduct is related to food delivery. Although some courts have questioned the penological value of using food as a tool for behavior modification, no court has held that doing so is a violation of the Eighth Amendment in all circumstances. For instance, a number of courts have upheld the practice of feeding inmates “nutra-loaf” for misusing their food or even for disciplinary reasons unrelated to food. LeMaire v. Maass, 12 F.3d 1444, 1456

(9th Cir.1993); Myers v. Milbert, 281 F.Supp.2d 859, 865 (N.D.W.Va.2003); Beckford, 151 F.Supp.2d at 213. Other courts have noted that even denying food for rules violations is a “facially permissible form of punishment.” Cooper, 929 F.2d at 1083; see Reed, 178 F.3d at 853 (“This is not to say that withholding of food is a per se objective violation of the Constitution.”).
However, these cases are readily distinguishable from plaintiff’s situation. In none of them was there a question whether the inmate was being subjected to a substantial risk of serious harm. In the nutra-loaf cases, the inmates were given food that was “not particularly appetizing,” but nevertheless “exceed[ed] an inmate’s minimal daily requirements for calories, protein and vitamins.” LeMaire, 12 F.3d at 1455. Similarly, it would not threaten an inmate’s health to deny him one meal or only a few meals over a longer period of time. The same cannot be said for repeated denials of food over several days or longer. To accept defendants’ argument, I would have to conclude that prison officials may disregard a substantial risk to an inmate’s health so long as the reason for doing so is the inmate’s failure to comply with prison rules. 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.
*8 To begin to see the danger of adopting defendants’ suggested approach, one only has to consider its application in the context of dispensing medication. Inmates with conditions such as asthma, diabetes or HIV/AIDS rely critically on medication to manage their illness. Even one missed dose may have serious consequences on the inmate’s health. If a prison strictly enforced behavioral rules for dispensing medication, it would not be long before an inmate was seriously injured. (I note that plaintiff proposes as a fact that the Secure Program Facility does enforce the same rules for receiving medication as it does for receiving food. Plt.’s PFOF dkt # 56, at ¶¶ 132, 247. Although defendants do not list delivery of medicine as one of the activities for which the policy is enforced, see Dfts.’ PPOF, dkt. # 100, at ¶¶ 64-72, they do not directly dispute plaintiff’s proposed fact.)
A heavy reliance on an inmate’s choice in rejecting an Eighth Amendment claim soon runs into trouble because the case law is clear that prison officials may be held liable under the Eighth Amendment for an inmate’s injury, even when the immediate cause of that injury is the inmate’s own actions. For instance, suicide is a choice, but the Court of Appeals for the Seventh Circuit has held repeatedly that prison officials may violate the Eighth Amendment if they are deliberately indifferent to an inmate’s risk of harming himself. Matos ex rel. Matos v. O’Sullivan, 335 F.3d 553 (7th Cir.2003); Cavalieri v.
5

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
Shepard, 321 F.3d 616 (7th Cir.2003); Sanville v.. McCaughtry, 266 F.3d 724 (7th Cir.2001); Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525 (7th Cir.2000). In none of these cases did the court of appeals suggest that courts should apply a different analysis under the Eighth Amendment when the inmate himself is at least partially at fault for his own injury.
Of course, death is a more serious injury than malnourishment, but defendants do not cite any authority that would support a conclusion that noncompliant prisoners are denied the protection of the Eighth Amendment until they are dead. Rather, in most cases involving the use of food to discipline, courts have asked only whether the inmates were receiving enough nutrition to maintain their health; courts have not suggested the Eighth Amendment analysis should change depending on whether food was denied for rules violations or simply out of malice or neglect. See LeMaire, 12 F.3d at 1456 (stating that only relevant question under Eighth Amendment was whether “prisoners receive food that is adequate to maintain health.”); Cooper, 929 F.2d at 1083 (concluding that district court erred in modifying Eighth Amendment standard in case involving denial of food because plaintiff was not fully dressed); Williams, 875 F.Supp. at 1011 (applying standard of deliberate indifference to substantial risk of serious harm in case involving denial of food for inmate’s failure to return his meal tray). In a case involving an extended denial of exercise, the Court of Appeals for the Second Circuit stated emphatically that even when an inmate “holds the key to his cell ... that fact in no way relaxe [s] [this] court’s inquiry into the adequacy of the conditions to which [an inmate is] subjected.” Williams v. Greifinger, 97 F.3d 699, 705 (2d Cir.1996) (no qualified immunity on claim that defendants violated Eighth Amendment by depriving prisoner of out-of-cell exercise for 589 days because he refused to take tuberculosis test).
*9 There is at least one case in which the court applied a different analysis to the denial of food for failure to comply with a rule. In Talib v. Gilley, 138 F.3d 211 (5th Cir.1998), the plaintiff had been involved in gang-related violence in the prison. Before the plaintiff could be served a meal, prison staff required him to kneel down with his hands behind his back. If the inmate did not comply with this rule, he was denied the meal. This occurred approximately 10 times a month over the course of five months. The plaintiff contended that the deprivation of food violated the Eighth Amendment. In analyzing the inmate’s claim, the court of appeals abandoned the standard generally applied in Eighth Amendment cases and replaced it with the test from Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), under which the Court asks whether a prison regulation is “reasonably related to legitimate penological interests.” The court then concluded that the defendants had a legitimate interest in insuring the safety of prison staff

and that requiring the inmate to kneel down was reasonably related to that interest.
The court did not explain its reasons for applying the Turner test. The Supreme Court adopted the Turner test in response to an inmate’s First Amendment challenge to a regulation that restricted correspondence between inmates and a Fourteenth Amendment challenge to a restriction on marriage. Since the Court decided Turner, it has applied the same test to challenges involving the free exercise of religion, O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), free speech, Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), and familial association, Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). However, the Court has never applied Turner in cases involving challenges under the Eighth Amendment. Rather, in Eighth Amendment cases challenging a prison’s conditions of confinement, the Court has always asked whether the defendant was deliberately indifferent to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 829, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In fact, in Overton, the Court considered both a substantive due process challenge and an Eighth Amendment challenge to a visitation restriction. Although the Court analyzed the substantive due process claim under Turner, when it came to the Eighth Amendment claim, the Court concluded that the regulation was constitutional because it did not “involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur.” Overton, 123 S.Ct. at 2170.
The likely reason for the Court’s refusal to extend Turner to Eighth Amendment claims is that the test cannot accommodate situations that involve threats to an inmate’s health or safety. Under the approach of Talib, prison officials could allow an inmate to die so long as they were enforcing a legitimate rule. I cannot conclude that such a result would be consistent with the “ ‘evolving standards of decency” ’ or with the “ ‘dignity of man.” ’ Atkins v. Virginia, 536 U.S. 304, 311-12, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)). Thus, I respectfully disagree with the court’s decision in Talib to apply the Turner test in a case involving a challenge under the Eighth Amendment.
*10 This does not mean, however, that in considering whether there has been an Eighth Amendment violation, courts should ignore the reasons that a prisoner suffered a deprivation. An official’s reasons for his behavior are always relevant in determining whether he acted with deliberate indifference. Lunsford v. Bennett, 17 F.3d 1574, 1581-82 (7th Cir.1994). For example, if an inmate
6

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
was being unsafe to the extent that entering his cell to deliver his meal would pose a risk to the correctional officer, it would not be deliberate indifference but rather common sense to withhold food from the inmate until a safe way to feed him was discovered. Pearson v. Ramos, 237 F.3d 881 (7th Cir.2001) (defendants did not violate Eighth Amendment by keeping inmate in disciplinary segregation for one year because he “behave[d] like a wild beast whenever he [was] let out of his cell”); see also Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (finding deliberate indifference when defendants handcuffed inmate to hitching post for seven hours in hot sun, without bathroom breaks and with little water in part because “[a]ny safety concerns had long since abated by the time petitioner was handcuffed to the hitching post”). Along the same lines, if the inmate was denied food for refusing to comply with an illegitimate order, this would support a finding that the defendant had acted without regard for the inmate’s health. Cf. Felix v. McCarthy, 939 F.2d 699 (9th Cir.1991) (holding that officer was not entitled to qualified immunity on Eighth Amendment claim that he pushed and handcuffed inmate for refusing to comply with order to clean up officer’s spit). Thus, the better the defendant’s reason for imposing a deprivation, the more difficult it will be for the plaintiff to prove that the defendant was deliberately indifferent to his health or safety.
In this case, defendants have pointed to no evidence in the record suggesting that the rules for receiving meals are necessary to insure the safety of prison staff. Rather, defendants’ only justification for the policy is to prevent inmates from exposing themselves to staff. Although this is a legitimate concern, protecting an officer’s sensibilities would not necessarily justify starving a prisoner indefinitely. Furthermore, there is no evidence in the record that, when plaintiff continued to “refuse” meal after meal, any member of the staff even attempted to find solutions to the problem that would both uphold prison discipline and insure that plaintiff received adequate nutrition. The evidence in the record does not reveal that any action was taken or that any action would be taken, beyond the recording of plaintiff’s “refusal.” The absence of such evidence is particularly disturbing in this case in light of evidence that plaintiff suffered from a variety of physical and psychological problems that could have affected his ability to comply with the rules and heightened the potential harm that food deprivation could cause. See Reed, 178 F.3d at 853 (noting that “the plaintiff was already infirm, and an alleged deprivation of food could possibly have more severe repercussions for him”). (Defendants object to plaintiff’s averments regarding mental illness. Although I agree that plaintiff is not qualified to diagnose himself as mentally ill, it is preposterous to argue that plaintiff cannot testify to whether he tried to commit suicide or smeared blood, feces and urine all over his cell.) Thus, on the current record, I cannot conclude as a matter of law that the

continued denial of food was consistent with the requirements of the Eighth Amendment.
*11 Plaintiff did not name as defendants the officers who denied his meals and he points to no evidence in the record that either defendant Berge or defendant Litscher knew that officers were denying meals to him. A supervisory official may not be held liable for a constitutional violation unless he knew about the conduct and facilitated it, approved it, condoned it, or turned a blind eye for fear of what he might see. Morfin v. City of East Chicago, 349 F.3d 989 (7th Cir.2003). In this case, the officers denying food to plaintiff were enforcing a policy of the Secure Program Facility. As the warden of the prison, defendant Berge is ultimately responsible for the policies that are enforced in the prison. Thus, if the policy is unconstitutional, this would be sufficient to find that defendant Berge condoned or turned a blind eye to the constitutional violation. See Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir.2002); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.1995).
On the current record, I cannot conclude that defendant Berge’s policy is constitutional because its enforcement seems to have no limits. The policy states only that inmates will be denied food if they do not put on trousers, turn on their light and stand in the middle of their cell. The record does not indicate that the policy includes any restrictions on how long an inmate may be denied food for rules violations. The undisputed fact that plaintiff received almost no food for a week supports an inference that no such limitation exists. In addition, defendants adduced no evidence that defendant Berge directs his staff to communicate with him or each other or to take any special precautions when an inmate repeatedly “refuses” food, such as additional monitoring by health professionals or attempts to learn why the inmate refuses to comply with orders and how the problem may be addressed safely. If the policy allows prison staff to deny food indefinitely without addressing the resulting threat to the inmates’ health, the policy may be unconstitutional because it evinces deliberate indifference to a substantial risk of serious harm to the inmates’ health. Even if defendant Berge’s own view is that the policy should not be enforced when an inmate’s health is threatened, he may still be held liable if he has not instructed his staff on safeguards that should be employed when an inmate continually fails to comply with meal delivery rules. Kitzman-Kelly v. Warner, 203 F.3d 454, 459 (7th Cir.2000).
Therefore, defendants’ motion for summary judgment will be denied with respect to plaintiff’s claim that defendant Berge violated plaintiff’s Eighth Amendment rights by denying him food over an extended period. However, there is no basis in the record from which a jury could reasonably infer that defendant Litscher was personally involved in denying plaintiff food. The policy
7

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
at issue is not one of the Department of Corrections but of the Secure Program Facility only. Accordingly, I will grant defendants’ motion for summary judgment on this claim as it applies to defendant Litscher. Furthermore, because there are several material factual issues that are unresolved, I will deny plaintiff’s motion for summary judgment as well.
B. Cell Temperatures
*12 Prisoners have a right under the Eighth Amendment to be free from extreme hot and cold temperatures. Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir.1986). The same Eighth Amendment standard applies to cell temperatures as to other conditions of confinement: whether the temperatures subject the inmate to a substantial risk of serious harm. Murphy v. Walker, 51 F.3d 714 (7th Cir.1995). In assessing whether this standard has been satisfied, a court should consider the temperature’s severity, its duration, whether the inmate has alternative means to protect himself from the extreme temperatures, the adequacy of these alternatives and whether the inmate must endure other uncomfortable conditions apart from the severe temperature. Dixon v. Godinez, 114 F.3d 640, 644 (7th Cir.1997).
1. Summer months There are many disconcerting facts about the cell temperatures in the Secure Program Facility during the summer months of 2000 and 2001. Of most note is the apparent lack of effort of defendants to help reduce the heat in the cells or alleviate the effects caused by the heat. Inmates could not take cold showers. (At some point, shower water temperature was reduced from 110 degrees to 101 degrees, but defendants do not identify when this occurred.) Although even a hot shower might provide limited relief, inmates were allowed only three showers a week. They were not given fans or ice or even cold water to drink (the “cold” water temperature from the inmates’ sink was at least 76 degrees in the summer). Inmates did have access to drinking water, but defendants have submitted no evidence that staff monitored inmates to make sure they were drinking sufficient fluids to prevent dehydration or even encouraged inmates to do so. Although there was a ventilation system, the air coming in the cell was at least as hot as the outside temperature and sometimes hotter.
Inmates were given no instructions on how to protect themselves from the heat or on how to recognize heat-related symptoms. Although staff from the health services unit would check on inmates, defendants do not indicate how often they did this, if rounds became more

frequent during especially hot weather, or even if high risk populations were monitored more closely. Defendants’ only attempt to provide relief was to allow the inmates to take additional (hot) showers, which only made matters worse because it raised the humidity in the prison.
In short, even though the prison had been open since 1999, by summer 2001, defendants still had no policy in effect for protecting inmates from excessively hot weather. (Defendants propose many facts regarding measures they have taken since 2002 to address the effects of hot weather in the summer. However, as I have noted in several previous orders in this case, events that occurred after I approved the settlement agreement in Jones ‘El v. Berge, No. 00-C-421-C, on March 28, 2002, are not relevant to plaintiff’s claim.) These facts could be sufficient to allow a reasonable jury to find that defendants were deliberately indifferent to plaintiff’s health and safety.
*13 However, to prevail on a claim under the Eighth Amendment, plaintiff must do more than prove defendants’ subjective state of mind. Rather, he must show also that he was subjected to a substantial risk of serious harm. This is where plaintiff’s claim fails. It appears that defendants may benefit from the fortuity that the summers of 2000 and 2001 did not have long periods of excessively hot temperatures. According to defendants’ records, the temperature in plaintiff’s unit did not exceed 91.4 degrees during summer 2001. Most of the time, defendants’ records do not show the heat exceeding 85 degrees.
These records are far from perfect. Defendants’ figures do not take into account the humidity, which could increase the heat index. In addition, cell temperatures were recorded only once a week and not necessarily during the hottest time of the day. Defendant did not submit any records for summer 2000. (However, records from the National Climatic Data Center show only one day in which the air temperature in Boscobel exceeded 90 degrees in July and August 2000. See “Undisputed Facts,” supra, at 7.) Nevertheless, these records are the only competent evidence provided by the parties. A court may not deny a motion for summary judgment on the basis of speculation alone. McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir.2003).
Plaintiff includes many proposed findings of fact based on his affidavit and the affidavits of other inmates that he was often subjected to temperatures greater than 100 degrees. Although plaintiff is certainly qualified to testify regarding how he felt when the weather was hot (and plaintiff has submitted virtually no evidence on this point), he is not a climatologist and there is no indication in his affidavits that he or any other prisoner used any equipment to gauge their cell temperatures. Without a
8

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
basis for a conclusion that the cell temperatures were as hot as plaintiff says they were, I cannot consider this evidence. Even assuming that a lay person is qualified to testify about temperatures, plaintiff has failed nonetheless to adduce any evidence regarding how long he believed his cell was hotter than 100 degrees. Short-term exposure to such temperatures would not violate the Eighth Amendment by itself. Compare Wilson v. Seiter, 893 F.2d 861, 864 (6th Cir.1990) (occasional exposure to 95 degree heat did not violate Eighth Amendment), vacated on other grounds, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) with Dixon, 114 F.3d 640 (summary judgment improper on Eighth Amendment claim when there was evidence that plaintiff was subject to near freezing temperatures over course of four winters).
In his brief, plaintiff also asks the court to consider the facts in Jones ‘El v. Berge, No. 00-C-421, in examining his claim. Although some facts that plaintiff would have to prove at trial overlap with those at issue in Jones ‘El, plaintiff cannot rely on “facts” surrounding the conditions of confinement in Jones ‘El because those facts were not final findings of fact that support a judgment. Instead, they were facts found only for the purpose of the particular rulings at hand. To prove his claims, plaintiff must show that defendant was liable for the conditions that caused him harm. Plaintiff cannot rely on facts found for a limited purpose in Jones ‘El.
*14 Current precedent does not draw a clear line between temperatures that are merely uncomfortable and those that are inhumane or unhealthy. Of course, there reaches a point when heat is so excessive that the risk to an inmate’s health is obvious. Brock v. Warren County, Tennessee, 713 F.Supp.2d 238 (E.D.Tenn.1989) (defendants violated Eighth Amendment when 62-year old inmate died after being exposed to temperatures up to 110 degrees in cell with no ventilation and very high humidity). In this case, however, the available evidence does not suggest that temperatures in plaintiff’s unit were that extreme.
In his brief, plaintiff argues that the risk of harm is demonstrated by defendants’ internal management procedure, “Heat Advisory,” which was issued in July 2002. It warns that serious injury or death can occur with prolonged exposure to extreme heat. Of course this is true, but it still raises the question, “How hot is too hot?” The heat advisory procedure does not support a conclusion that temperatures of 85 to 90 degrees pose a serious risk of harm to the average person. The procedure does not recommend any preventive action until the heat index reaches 90 degrees. Although even defendants’ records show cell temperatures reaching this range, it appears to have been only for a short time.
There is no other evidence in the record that makes up for what the procedure lacks. There is no evidence that

plaintiff or anyone else was hospitalized with a heat-related illness or that plaintiff was on psychotropic medications that would make him more vulnerable to heat. Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir.2002) (reversing denial of summary judgment on Eighth Amendment claim involving inmate on medication that subjected him to increased risk of heat stroke); Jones ‘El, 164 F.Supp.2d at 1100 (noting that heat is more likely to be harmful for those on psychotropic medications). Although plaintiff lists many ailments that he suffered from, none of them is obviously a result of exposure to heat and plaintiff has failed to adduce any evidence that the heat caused him harm. See Pearson, 237 F.3d at 881 (plaintiff had no medical knowledge and therefore could not testify that his tooth fell out because he was not allowed to exercise outside his cell). (Plaintiff submitted the affidavit of one prisoner who averred that some “prisoners” suffered from heat stroke. See Aff. of Jeremy Daubon, dkt. # 61. However, he did not identify who it was that suffered or how he knew this. Therefore, I cannot consider this affidavit because it fails to meet the requirement of Fed.R.Civ.P. 56 that affidavits set forth “specific facts” and be based on personal knowledge. Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir.2001) (affidavit of plaintiff referring to conduct of other employees not admissible when it did not explain how she learned about conduct); Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th Cir.1998) (“Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.”). The drinking water plaintiff received may have been, as he describes it, “tepid at best,” Plts’ Br., dkt. # 105, at 6, but there is no suggestion that the water was insufficient to prevent plaintiff from dehydrating.
*15 Finally, I note that in almost all of the cases finding potential Eighth Amendment violations for excessive heat, there was corresponding evidence of severely deficient ventilation. Kost v. Kozakiewicz, 1 F.3d 176, 188-89 (3d Cir.1993); Blake v. Hall, 668 F.2d 52 (1st Cir.1981); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980); Rhem v. Malcom, 507 F.2d 333, 338 (2d Cir.1974); Caldwell v. District of Colmbia, 201 F.Supp.2d 27, 36 (D.D.C.2001); Inmates of Occaquan v. Barry, 717 F.Supp. 854 (D.D.C.1989); Brock, 713 F.Supp.2d 239; Tillery v. Owens, 719 F.Supp. 1256, 1271 (W.D.Pa.1989) (“Insufficient ventilation ... undermines the health of the inmates and the sanitation of the institution.... Moreover, a lack of ventilation coupled with double-celling increases the likelihood of disease, as well as frustration brought on by uncomfortable temperatures and odors.”). In this case, it is undisputed that the facility had a working ventilation system. Although the air coming in was not cool, the air movement should have lessened the risk to plaintiff’s health.
9

Freeman v. Berge, Not Reported in F.Supp.2d (2003)
In sum, I do not doubt that summer temperatures in plaintiff’s cell were uncomfortable. Although the question is a close one, I cannot conclude on the basis of the record that a reasonable jury could find that defendants violated plaintiff’s Eighth Amendment rights. Plaintiff’s motion for summary judgment will be denied and defendants’ motion for summary judgment will be granted on plaintiff’s claim that defendants violated the Eighth Amendment by exposing him to excessive heat. Plaintiff may take some comfort in the knowledge that in Jones ‘El v. Berge, No. 00-C-421-C, I recently ordered the defendants to comply with the settlement agreement in that case by installing air conditioning in the Secure Program Facility so that the summer cell temperatures may reach a goal of 80-84 degrees.
2. Winter months According to defendants’ records, the cell temperatures during the winter did not fall below 71 degrees. In challenging the accuracy of these records, plaintiff points to the undisputed facts that inmates often complain about the cold, that prisoners have been seen in their cells with blankets wrapped around them and that members of the prison staff wear sweaters and coats to work. Even assuming that these facts would be sufficient to put defendants’ records in dispute, they would not support a finding that the winter temperatures in plaintiff’s cell were so extreme that they subjected him to a substantial risk of serious harm. Plaintiff’s evidence does not approach what would be necessary to allow a reasonable jury to find in his favor. Although plaintiff does not need to show that he suffered from “frostbite, hypothermia or similar infliction,” Del Raine v. Williford, 32 F.3d 1024, 1035 (7th Cir.1994), it is not sufficient to merely show that he was uncomfortable. See Dixon, 114 F.3d at 644 (“just because low temperature forces a prisoner to bundle up indoors during winter does not mean that prison conditions violate the Eighth Amendment”); Henderson v. DeRobertis, 940 F.2d 1055 (7th Cir.1991) (finding that qualified immunity did not apply in case involving cell temperatures below freezing).

*16 Plaintiff’s evidence with respect to deliberate indifference is also lacking. It is undisputed that during the winter, inmates were given extra blankets and thermal underwear to alleviate the effects of the cold. This is evidence that defendants were not recklessly disregarding plaintiff’s need for warmth. Cf. Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (stating that prison officials might violate Eighth Amendment if they subjected inmates to low temperatures and failed to give inmates blankets). The record is devoid of any evidence that the steps defendants took were insufficient or if they were, that defendants knew that more was required to protect the inmates’ health. Farmer, 511 U.S. at 837 (“the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”). Plaintiff’s motion for summary judgment will be denied and defendants’ motion for summary judgment will be granted with respect to plaintiff’s claim that defendants violated his Eighth Amendment rights by subjecting him to extreme cold.
ORDER
IT IS ORDERED that
1. Plaintiff Berrell Freeman’s motion for summary judgment is DENIED.
2. The motion for summary of defendants Gerald Berge and Jon Litscher is DENIED with respect to plaintiff’s claim that defendant Berge violated his Eighth Amendment rights by denying him food for failing to comply with food delivery rules. Defendants’ motion for summary judgment is GRANTED in all other respects.
3. Defendant Jon Litscher is DISMISSED from this case.
	  

10

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2004)

2004 WL 66774 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE and Jon E. Litscher, Defendants.
No. 03–C–0021–C. | Jan. 6, 2004.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion

Wisconsin Bar, have agreed jointly to represent plaintiff, with the understanding that they will serve with no guarantee of compensation for their services. It is this court’s intention that the appointment of Mr. Harth and Ms. Walkenhorst to represent plaintiff extend to proceedings in this court only.1 Because plaintiff’s counsel will require time to consult with plaintiff and familiarize themselves with the case, I will rescind the previously scheduled trial date. In addition, I will request the clerk of court to set a scheduling conference before the United States Magistrate Judge at which counsel may work out a new trial date and adjustments to other pretrial deadlines presently in place.
Plaintiff should be aware that because I am appointing counsel to represent him, he may not communicate directly with the court about matters pertaining to his case. He must work directly with his lawyers and permit them to exercise their professional judgment to determine which matters are appropriate to bring to the court’s attention and in what form.

ORDER
CRABB, J.
*1 Plaintiff Berrell Freeman is proceeding in this civil action pro se and in forma pauperis. All of the claims plaintiff raised in his complaint have been resolved except a claim that defendants are violating plaintiff’s Eighth Amendment rights by enforcing a policy of denying food for alleged failures to comply with food delivery rules. Presently, this claim is scheduled for trial on February 23, 2004. However, I have decided that the court will be aided in the resolution of this final claim, whether it is to be tried or resolved informally, if plaintiff is represented by counsel.

ORDER
IT IS ORDERED that David Harth and Sarah Walkenhorst are appointed to represent plaintiff Berrell Freeman in this case.
Further, IT IS ORDERED that the February 23, 2004 trial date previously set in this case is RESCINDED. The clerk of court is requested to schedule a conference before United States Magistrate Judge Stephen Crocker at which the parties may establish a new trial date and reschedule the remaining pretrial deadlines.
	  

David Harth and Sarah Walkenhorst, members of the

Footnotes

1

“Proceedings in this court” include all matters leading up to a final judgment on the merits, the filing of a Notice of Appeal, if

appropriate, and ensuring that all steps are taken to transfer the record to the Court of Appeals for the Seventh Circuit.

	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2004)
2004 WL 1774737 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald BERGE, Defendant.
No. 03–C–0021–C. | July 28, 2004.
Attorneys and Law Firms
David J. Harth, for Plaintiff.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendant.
Opinion
ORDER
CRABB, J.
*1 This case is proceeding on plaintiff Berrell Freeman’s claim that defendant Gerald Berge violated plaintiff’s right to be free from cruel and unusual punishment by depriving him of food. Plaintiff has moved to amend his complaint under Fed.R.Civ.P. 15(a) to include additional defendants that he believes are responsible for the deprivation: Peter Huibregtse, the deputy warden of the Wisconsin Secure Program Facility; Gary Boughton, the security director of the facility; and John Sharpe and Brad Hompe, both of whom are or were unit managers at the facility. In addition, plaintiff wishes to supplement his complaint under Rule 15(d) to include other instances of food deprivation that occurred after he filed his complaint. Defendant objects to the amendment on three grounds: futility, undue delay and unfair prejudice. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (district court may deny motion to amend complaint if there was undue delay in bringing the motion, if there is a dilatory motive on the part of the movant or if amendment would be futile or cause unfair prejudice to opposing party); Glatt v. Chicago Park District, 87 F.3d 190, 194 (7th Cir.1996) (applying same standard to motion to supplement under Rule 15(d)).
I disagree with defendant’s arguments that filing a motion to amend would be futile and that plaintiff was dilatory in bringing the motion. Further, any unfair prejudice may be cured by extending the trial date. Accordingly, I will grant plaintiff’s motion to amend and supplement his

complaint.
Futility Defendant’s futility argument is based on 42 U.S.C. § 1997e(a), which requires prisoners to exhaust any available administrative remedies before they bring suits in federal court challenging prison conditions. Specifically, defendant says that plaintiff has “provided no proof” that he exhausted his administrative remedies with respect to the new defendants and additional instances of food deprivation. As an initial matter, I note that it is defendant and not plaintiff that must “provide proof” of the absence of plaintiff’s exhaustion efforts because failure to exhaust administrative remedies is an affirmative defense. Massey v. Helman, 196 F.3d 727 (7th Cir.1999). In any event, even if I assume that plaintiff has not filed any inmate complaints regarding food deprivation besides those that are already in the record, I cannot conclude that allowing plaintiff to amend his complaint would be futile.
Most of defendant’s argument centers on plaintiff’s failure to identify the names of the new defendants in his inmate complaints. Curiously, defendant did not make this argument with respect to himself in his earlier motion to dismiss for lack of exhaustion, even though plaintiff’s inmate complaints do not identify defendant by name either. Perhaps defendant recognized then what he is trying to challenge now, which is that plaintiff was not required to name the defendants in his inmate complaints.
*2 Defendant relies on Burton v. Jones, 321 F.3d 569 (6th Cir.2003), and Curry v. Scott, 249 F.3d 493, 504–05 (6th Cir.2001), in which the court concluded that the prisoner had not exhausted his claims as to a particular defendant because that defendant was not named in the administrative complaint. Although the Court of Appeals for the Seventh Circuit has noted this approach, it has not adopted it. Rather, in Strong v. David, 297 F.3d 646, 647 (7th Cir.2002), the court held that the level of specificity required in a prison grievance is determined by what the administrative system requires. A review of the Wisconsin Administrative Code reveals that it contains few content-related requirements for inmate complaints. Wis. Admin. Code § DOC 310.09(1) requires the inmate to type or write the complaint legibly, to sign the complaint, to refrain from using abusive or obscene language, to file the complaint under his assigned name and to “clearly identify” the issue that is the subject of the complaint.
Defendant does not suggest that plaintiff failed to comply with any of these requirements. Instead, he argues that the requirement to name each defendant in an inmate
1

Freeman v. Berge, Not Reported in F.Supp.2d (2004)
complaint can be found in Wis. Admin. Code § DOC 310.05, which provides:
Before an inmate may commence a civil action or special proceedings against any officer, employee or agent of the department in the officer’s, employee’s or agent’s official or individual capacity for acts or omissions committed while carrying out that person’s duties as an officer, employee or agent or while acting within the scope of the person’s office, the inmate shall exhaust all administrative remedies that the department of corrections has promulgated by rule.
Although this section includes several references to “officers,” “employees” and “agents,” it is in the context of discussing civil actions against these individuals, not the requirements for inmate complaints. The only directive in this regulation is that “the inmate shall exhaust all administrative remedies that the department of corrections has promulgated by rule.” The regulation does not specify any content-related requirements. No reasonable interpretation of § DOC 310.05 would support a conclusion that the regulation requires inmates to name defendants individually in their inmate complaints.
Defendant points to no other administrative rule that would have required plaintiff to name the defendants individually. “When the administrative rulebook is silent, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Strong, 297 F.3d at 650. The inmate complaints related to plaintiff’s food deprivation claim in the record satisfy this standard. In one complaint, plaintiff wrote that he had been “denied food because I did not have my light on, etc. This is using food as punishment. I have never refused my meals.” Offender Complaint WSPF 2002–41916, attached to Aff. of John Ray, dkt. # 13, Exh. B. The complaint was dismissed not because plaintiff failed to identify the individuals responsible, but because there was a prison policy that permitted officers to deny meals to inmates when they fail to follow prison rules.
*3 Defendant argues that by failing to name Huibregtse, Boughton, Sharpe and Hompe in his inmate complaint, plaintiff failed to give them notice of his claim. I make two observations in response. First, defendant does not explain why these individuals needed notice of plaintiff’s administrative complaint. In the context of the inmate complaint review system, it is not notice to individual actors that is important but notice to the prison administration. The purpose of administrative exhaustion is not to protect the rights of officers, but to give prison

officials a chance to resolve the complaint without judicial intervention. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 537–38 (7th Cir.1999) (exhaustion serves purposes of “narrow[ing] a dispute [and] avoid[ing] the need for litigation”). Thus, in determining whether an inmate complaint provides sufficient notice, the question should be whether the prisoner has provided enough information to allow the reviewing authority to resolve the complaint.
In some instances, prison officials might not be able to effectively resolve an inmate complaint unless the prisoner identified the individuals responsible. For example, if a prisoner were to claim that he had been subjected to excessive force, it would be difficult for prison officials to take any action on the complaint without having some description of the officer who allegedly used excessive force. An inmate complaint that did not include identifying information in this situation might be appropriately rejected, not because of any unfairness to the officer but because the reviewing administrator would not have sufficient information on which to act.
In this case, plaintiff was objecting to a prison policy that was causing him to be denied food. This was sufficient to allow prison administrators to evaluate his complaint and reject it on the ground that they believed the policy to be sound. Defendant does not suggest that plaintiff’s complaint would have been handled any differently if he had stated his belief that Huibregtse, Boughton, Sharpe and Hompe were responsible for the deprivation.
Second, even in federal court, in which notice pleading is employed, a pro se complaint is not subject to automatic dismissal when the plaintiff fails to identify a defendant by name. Rather, “when the substance of a pro se civil rights complaint indicates the existence of claims against individual officials not named in the caption of the complaint, the district court must provide the plaintiff with an opportunity to amend the complaint.” Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 555 (7th Cir.1996); see also Duncan v. Duckworth, 644 F.2d 653, 655–56 (7th Cir.1981) (if prisoner does not know name of defendant, court may allow him to proceed against administrator for purpose of determining defendants’ identity). The reason for this rule is that it would be unfair to penalize a prisoner for failing to identify a defendant by name when the prisoner is unaware of the person or persons who are ultimately responsible for the alleged violation of his constitutional rights. Donald, 95 F.3d at 555.
*4 The rationale of Duncan and Donald apply to this case. Plaintiff’s reasoning for amending his complaint to include Huibregtse, Boughton, Sharpe and Hompe is not that they personally denied plaintiff meals but that they were responsible for implementing prison policy. Plt.’s
2

Freeman v. Berge, Not Reported in F.Supp.2d (2004)
Br., dkt. # 150 at 4 (“They are, upon information and belief, officials who were authorized to make decisions regarding plaintiff’s meal delivery services or, at the very least, had supervisory authority over such officers and either had knowledge of or acquiesced in the conduct.”). It is unlikely that plaintiff could have known to include these individuals in his administrative complaint because he would not have had personal knowledge of the decision making structure within the prison. See Brown v. Sikes, 212 F.3d 1205, 1208 (11th Cir.2000) (holding that § 1997e(a) does not require inmate complaints to include names of individuals that he “did not know and could not readily ascertain”); Wheeler v. Prince, 318 F.Supp.2d 767, 771 (E.D.Ark.2004) (following Brown ). The prison officials reviewing plaintiff’s inmate complaint would have been in a much better position than he to determine who was responsible for creating and implementing the policy.
As I noted in Franklin v. McCaughtry, 02–C–618–C, (W.D.Wis. May 27, 2003), if defendant were to impose a requirement on inmates to identify alleged wrongdoers by name, he would have to create a corresponding discovery-type system that would permit inmates to learn the names of those responsible within the deadline for filing inmate complaints, which is 14 days. Wis. Admin. Code § DOC 310.09(6). Otherwise, such a requirement would likely be invalid. See Strong, 297 F.3d at 649 (“[N]o prison system may establish a requirement inconsistent with the federal policy underlying § 1983.”); see also Spruill v. Gillies, 372 F.3d 218, 232 (3d Cir.2004) (“a prison’s grievance system’s procedural requirements [may not] be imposed in a way that offends the Federal Constitution or the federal policy embodied in § 1997e(a)”). Defendant does not suggest that such a system is employed at the facility or that plaintiff was given any assistance in determining who was responsible for the policy. Accordingly, I conclude that allowing plaintiff to amend his complaint to include Huibregtse, Boughton, Sharpe and Hompe would not be futile. Neither the Wisconsin regulations nor § 1997e(a) required plaintiff to identify these defendants by name in his inmate complaint.
Defendant raises a similar futility objection with respect to plaintiff’s motion to supplement his complaint to include new instances of food deprivation that have occurred since he filed his complaint in federal court. However, defendant fails to develop any argument on this point or cite a regulation that would require plaintiff to file separate inmate complaints for these acts. Accordingly, I conclude that defendant has waived this argument. Central States, Southeast and Southwest Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 808 (7th Cir.1999) (“Arguments not developed in any meaningful way are waived.”). It is highly unlikely that such a rule exists. It would mean that plaintiff would have to file a separate inmate complaint for each instance

of food deprivation that occurred (plaintiff alleges hundreds of missed meals), a result that would thwart rather than further the prison’s interest in resolving disputes efficiently.
*5 Even if there were such a rule, it is questionable whether it would withstand scrutiny. Enforcement of the rule would make it impossible for prisoners to obtain full relief in cases involving ongoing constitutional violations without filing additional lawsuits each time a new violation occurred because § 1997e(a) requires prisoners to seek an administrative remedy before they file a complaint in federal court. Johnson v. Jones, 340 F.3d 624 (8th Cir.2003); see Perez, 182 F.3d at 535 (“a suit filed by a prisoner before administrative remedies have been exhausted must be dismissed”). Such a result that would be both wasteful and contrary to the policy behind § 1983 and § 1997e(a). See Jones ‘El v. Berge, 172 F.Supp.2d 1128, 1131 (W.D.Wis.2001) (concluding that § 1997e(a) required only one inmate in prison class action to exhaust his administrative remedies in part because rule requiring all class members to exhaust would make class actions for injunctive relief impossible). Prison officials had the opportunity to resolve plaintiff’s first inmate complaint administratively. As noted above, they relied on a prison policy in dismissing complaint. There is no reason to believe that their response would be any different now. Id. at 1133 (“As long as prison officials have received a single complaint ... they have the opportunity to resolve disputes internally and to limit judicial intervention in the management of prisons.”). Accordingly, I conclude that defendant has failed to show that it would be futile for plaintiff to supplement his complaint to include additional instances of food deprivation.
Undue Delay and Unfair Prejudice Defendant emphasizes that trial is currently scheduled for August 23, 2004, and that allowing plaintiff to amend his complaint at this late date would be unfairly prejudicial to the newly named defendants. Normally, I would agree that a motion to amend a complaint brought six weeks before trial is scheduled would be unduly dilatory. However, this is an unusual case. For much of the history of this case, plaintiff was proceeding without counsel. Counsel was not appointed until January 2004, after I denied defendant’s summary judgment motion with respect to plaintiff’s food deprivation claim. I am persuaded that since that time counsel for plaintiff has acted diligently in becoming educated about the facts of the case and in preparing for trial.
One of the most important issues in this case involves determining the person or persons responsible for denying food to plaintiff. Neither side had developed this issue fully at the summary judgment stage. During the course of
3

Freeman v. Berge, Not Reported in F.Supp.2d (2004)
discovery, counsel has discovered facts that led them to believe that defendant was not solely responsible for the alleged deprivation. Now that the case has proceeded as far as it has, it would be a grave injustice if plaintiff were denied any relief, not because no constitutional violation occurred, but because plaintiff failed to realize in time who the appropriate defendants were. The court of appeals has admonished district courts “to take appropriate measures to permit the adjudication of pro se claims on the merits rather their to order their dismissal on technical grounds.” Donald, 95 F.3d at 555. This mandate, along with the requirement of Fed.R.Civ.P. 15 to allow amendment “when justice so requires” compels a conclusion that plaintiff’s motion to amend his complaint be granted. Although one could argue that plaintiff could have moved to amend his complaint more swiftly after appointment of counsel, I cannot conclude that there has been undue delay, particularly given counsel’s agreement to represent plaintiff without any guarantee of compensation despite their busy schedules.
*6 I come to the same conclusion with respect to plaintiff’s motion to supplement his complaint under Rule 15(d) to include instances of food deprivation that have occurred since plaintiff filed this action in federal court. If prison officials are continuing to deny plaintiff food, plaintiff should not be denied full relief because he filed his lawsuit too soon.
It is important to note that plaintiff is not trying to amend his complaint to include new legal theories or new claims unrelated to food deprivation. Defendant suggests in his brief that plaintiff is attempting to create “a rehash of Jones ‘El v. Litscher, 00–C–421–C,” a case that involved a challenge to the totality of the conditions of confinement at the Wisconsin Secure Program Facility. However, a reading of plaintiff’s amended complaint shows that defendant’s concern is not well founded. Plaintiff’s changes are limited to the number of defendants and the timing of the alleged deprivations; plaintiff is not seeking to bring in claims regarding social isolation and sensory deprivation. (He could not, for the

reasons discussed in the June 3, 2003 Op. and Order, dkt. # 24.)
In sum, I conclude that justice requires granting plaintiff’s motion to amend and supplement his complaint. However, I agree with defendant that it would be unfairly prejudicial to hold a trial less than a month after the scope of the plaintiff’s claim has been significantly expanded. Therefore, I will rescind the trial date and direct the clerk of court to set up a new scheduling conference before Magistrate Judge Stephen Crocker. At this conference, the magistrate judge will set expedited deadlines in consultation with the parties for discovery, summary judgment motions and trial. However, because I have concluded already that plaintiff has adduced sufficient evidence to allow a reasonable jury to conclude that he was subjected to a substantial risk of serious harm, I anticipate that any additional summary judgment motions will be limited to the issue of personal involvement, unless there is new evidence that would require judgment as a matter of law in favor of plaintiff or defendants.
ORDER
IT IS ORDERED that plaintiff Berrell Freeman’s motion to amend and supplement his complaint to add Peter Huibregtse, Gary Boughton, John Sharpe and Brad Hompe as defendants and to include instances of food deprivation that occurred after January 2003 is GRANTED. Plaintiff should take immediate steps to serve the amended complaint on the new defendants. Defendant Berge may file his response to the amended complaint at the same time that the new defendants file their response. The clerk of court is directed to set up a prompt scheduling conference to be held before the magistrate judge.
	  

4

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2004)

2004 WL 3006937 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
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; John Sharpe, Unit Manager (former), in his individual capacity; and Grad Hompe, Unit Manager, in his individual capacity, Defendants.
No. 03-C-0021-C. | Dec. 21, 2004.
Attorneys and Law Firms
Berrell Freeman, pro se.
orey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.

Opinion
PERMANENT INJUNCTION ORDER
CRABB, J.
*1 In light of the jury verdict finding defendants Gerald Berge, Peter Huibregtse and Brad Hompe liable for violating plaintiff’s constitutional rights in this matter, IT IS ORDERED that plaintiff Berrell Freeman’s motion for a permanent injunction is GRANTED and defendants Gerald Berge, Peter Huibregtse and Brad Hompe are enjoined from withholding meals from plaintiff Berrell Freeman as a response to any rule violation that does not constitute an imminent security risk. I find that the relief granted in this order is narrowly drawn, extends no further than necessary to correct the alleged violation of plaintiff’s federal rights and is the least intrusive means necessary to correct the alleged violation of plaintiff’s federal rights.
	  

1

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2005)
2005 WL 1168311 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
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.
No. 03-C-0021-C. | May 16, 2005.
Attorneys and Law Firms
Berrell Freeman, pro se.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendants.
Opinion
OPINION AND ORDER
CRABB, J.
*1 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 before their meals are delivered are considered to have refused the meals. Plaintiff contended that defendants had violated 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, plaintiff 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 November 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 indifference or reckless disregard of the inhumane conditions of confinement complained of by plaintiff. 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 attorney fees.
*2 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
1

Freeman v. Berge, Not Reported in F.Supp.2d (2005)
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.” Id. 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.” Id. (internal citations omitted).
Plaintiff suggests that his case is distinguishable from Rodriguez because Rodriguez never challenged the validity of 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.” Id. at 952.) Plaintiff 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 subjected 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 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The rules at issue in this case could be justified as designed to decrease incidents of sexual exhibitionism, safety (standing in mid-cell with the lights on protects 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 Amendment 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 amounting 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. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). As I noted in the December 17, 2003 order in this case denying defendants’ 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.
*3 In the December 17 order, defendants were denied summary 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, I 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. I 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 inmate’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.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 (5th 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”).
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, however, the denial must result in the substantial risk of serious harm. It is only extreme
2

Freeman v. Berge, Not Reported in F.Supp.2d (2005)
deprivations that make out an Eighth Amendment claim. Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (holding that only “those deprivations denying the ‘minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment claim”).
*4 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 defendants’ motion for qualified immunity, I 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’ implementation of the policy is unconstitutional because its enforcement 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 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 punishment 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 substantial 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 failure, 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 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.
*5 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 director. 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 and the doctor is assessing him. In extreme conditions, the institution 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 plaintiff to a substantial risk of serious harm. There was no evidence that any of his physical problems amounted to serious 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 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
3

Freeman v. Berge, Not Reported in F.Supp.2d (2005)
sustain his Eighth Amendment claim moots the issue of defendants’ entitlement to qualified immunity 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 plaintiff’s 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 represents. It is evident that the jury found the institution’s policy of using food to coerce behavior to be inhumane in an institution 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
*6 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 Berrell Freeman’s motion relating to attorney fees is DENIED as moot.
	  

4

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2005)

2005 WL 1484521 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
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; John Sharpe, Unit Manager (former), in his individual capacity; and Grad Hompe, Unit Manager, in his individual capacity, Defendants.
No. 03-C-0021-C. | June 22, 2005.
Attorneys and Law Firms
Berrell Freeman, pro se.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Defendant.
Opinion

of the defendants. Subsequently, on May 23, 2005, plaintiff Berrell Freeman, who is represented in this case by appointed counsel, filed a notice of appeal and a request for leave to proceed in forma pauperis on appeal. Although plaintiff’s notice and request were docketed by the clerk of court, they will be disregarded. As I informed plaintiff at the time I appointed counsel to represent him, he may not communicate directly with the court about matters pertaining to his case. He must work directly with his lawyers and permit them to exercise their professional judgment to determine which matters are appropriate to bring to the court’s attention and in what form.
On June 20, 2005, counsel for plaintiff filed a notice of appeal on plaintiff’s behalf and paid the full filing fee. Although counsel has not requested that a copy of the transcript of the trial proceedings in this case be produced and sent to the court of appeals for its consideration in connection with plaintiff’s appeal, I construe the notice to include such a request. Plaintiff qualifies for indigent status in connection with this case. Without access to a trial transcript, it will be extremely difficult for the court of appeals to assess adequately plaintiff’s arguments on appeal. Therefore, it appears to be in the interest of justice to grant plaintiff’s request for preparation of the trial transcript at government expense pursuant to 28 U.S.C. §§ 753(f) and 1915(c).

ORDER
CRABB, J. *1 An amended judgment was entered in this case on May 19, 2005, vacating the judgment entered herein on December 30, 2004, and granting judgment in favor of all

Accordingly, IT IS ORDERED that a transcript of the proceedings in the trial of this case be prepared and furnished to the plaintiff, with the fees therefor to be paid by the United States, pursuant to 28 U.S.C. § 753(f) and 28 U.S.C. § 1915(c).1
	  

Footnotes

1

Opening and closing statements, the jury selection process and jury instructions are not included as a part of the trial transcript

unless the appellant makes a showing that these aspects of the trial are subject to legally meritorious attack on appeal. Plaintiff has

made no such showing in this case.

	  

1

 
 Freeman v. Berge
United States District Court for the Western District of Wisconsin September 13, 2004, Decided 03-C-0021-C

Reporter: 2004 U.S. Dist. LEXIS 18425 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; JOHN SHARPE, Unit Manager (former), in his individual capacity; and GRAD HOMPE, Unit Manager, in his individual capacity, Defendants.
Subsequent History: Motions ruled upon by Freeman v. Berge, 2004 U.S. Dist. LEXIS 24222 (W.D. Wis., Nov. 23, 2004)
Prior History: Freeman v. Berge, 2004 U.S. Dist. LEXIS 15532 (W.D. Wis., July 28, 2004)
Disposition: Motion to dismiss was allowed.
Counsel: [*1] Freeman, Barrell, PLAINTIFF, Pro se.
For Gerald Berge, DEFENDANT: Joely Urdan, Assistant Attorney General, Madison, WI USA.
Judges: BARBARA B. CRABB, District Judge.
Opinion by: BARBARA B. CRABB
Opinion
MEMORANDUM
Having reviewed the parties' letters on the question whether defendants are entitled to move to dismiss the only remaining claim in this action on the ground of qualified immunity, I conclude that the motion should be allowed. All of the defendants raised qualified immunity as an affirmative defense in their answer to the second amended complaint. This was the first opportunity for defendants Boughton, Sharpe, Hompe and Huibregtse to raise affirmative defenses, as they were added as defendants in the second amended complaint. Although defendant Berge has been a defendant in this action since its inception, he raised a general qualified

immunity defense in response to the numerous claims raised in the original complaint and has reasserted the defense in response to plaintiff's first and second amended complaints.
Plaintiff argues that this court already has decided that plaintiff states a claim of a constitutional deprivation with respect to his food [*2] deprivation claim and that to permit defendants to press the qualified immunity defense at this late date will constitute nothing more than a rehash of issues already decided and draw the parties' attention away from trial preparation. I agree with plaintiff that I have voiced my view on two previous occasions in this lawsuit, once expressly in the December 17, 2003 order denying the parties' cross motions for summary judgment (Dkt. # 129) and once implicitly in the July 28, 2004 order permitting plaintiff to file a second amended complaint (Dkt. # 159), that plaintiff states a viable Eighth Amendment claim that defendants disregarded a substantial risk to his health when they repeatedly denied him food for his failure to comply with prison rules. Nevertheless, I am convinced that defendants are entitled to be heard on their affirmative defense of qualified immunity insofar as they wish to argue that their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
In opposing defendants' motion, plaintiff bears the burden of demonstrating [*3] that defendants violated a constitutional right that was clearly established at time of the incidents giving rise to his Eighth Amendment claim. Perry v. Sheahan, 222 F.3d 309, 315 (7th Cir. 2000). The schedule for briefing the motion already has been established in the magistrate judge's order of September 7, 2004.
Entered this 13th day of September, 2004.
BY THE COURT:
BARBARA B. CRABB
District Judge

 
 Freeman v. Berge
United States District Court for the Western District of Wisconsin November 23, 2004, Decided 03-C-0021-C

Reporter: 2004 U.S. Dist. LEXIS 24222 BERRELL FREEMAN, Plaintiff, v. GERALD A. BERGE, PETER HUIBREGTSE, GARY BOUGHTON, JOHN SHARPE and BRAD HOMPE, Defendants.
Subsequent History: Request granted, Costs and fees proceeding at Freeman v. Berge, 2005 U.S. Dist. LEXIS 2464 (W.D. Wis., Jan. 27, 2005)
Prior History: Freeman v. Berge, 2004 U.S. Dist. LEXIS 18425 (W.D. Wis., Sept. 13, 2004)
Counsel: [*1] For BERRELL FREEMAN, Plaintiff: DAVID J. HARTH.
For GERALD BERGE, GARY BOUGHTON, JOHN SHARPE, BRAD HOMPE, PETER HUIBREGTSE, Defendants: JAMES E. MCCAMBRIDGE, ASSISTANT ATTORNEY GENERAL, WISCONSIN DEPARTMENT OF JUSTICE, MADISON, WI.
Judges: BARBARA B. CRABB, District Judge.
Opinion by: BARBARA B. CRABB
Opinion
FINAL PRETRIAL CONFERENCE ORDER

Counsel advised the court that the case would probably take two days but might last three. They agreed to a jury of seven. All witnesses will be sequestered except for expert witnesses and the parties.
Counsel were informed of the court's schedule and the method of selecting jurors.
Counsel agreed to the proposed voir dire questions in the form distributed to them at the final conference. They reviewed the proposed instructions and form of verdict but have delayed discussion of them until after the evidence is in on the liability phase of the case.
With respect to the motions in limine, plaintiff's motion to exclude any [*2] and all expert testimony by defendants' witnesses was GRANTED. Defendants have no intention of producing any expert witnesses. Defendants' request to exclude references to Jones 'El was GRANTED. In addition, their motion to exclude references to the termination of Corrections Officer Michael Slaney was GRANTED. Plaintiff has no intention of presenting any evidence about Officer Slaney's termination.
The trial in this case will begin at 9:00 a.m. on Monday, November 29, 2004.

A final pretrial conference was held in this case on November 19, 2004, before United States District Judge Barbara B. Crabb. David Harth and Sarah Walkenhorst appeared on behalf of plaintiff. James McCambridge represented defendants.

Entered this 23rd day of November, 2004. BY THE COURT: BARBARA B. CRABB

District Judge

 
 Freeman v. Berge
United States District Court for the Western District of Wisconsin January 27, 2005, Decided 03-C-0021-C

Reporter: 2005 U.S. Dist. LEXIS 2464 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; JOHN SHARPE, Unit Manager (former), in his individual capacity; and GRAD HOMPE, Unit Manager, in his individual capacity, Defendants
Subsequent History: Later proceeding at Freeman v. Berge, 2005 U.S. Dist. LEXIS 7700 (W.D. Wis., Apr. 18, 2005)
Prior History: Freeman v. Berge, 2004 U.S. Dist. LEXIS 24222 (W.D. Wis., Nov. 23, 2004)

Opinion by: STEPHEN L. CROCKER
Opinion
ORDER
Plaintiff's request for leave to file an amended motion for an award of attorney fees is GRANTED. The schedule for briefing the motion is modified as follows: Defendants may have until February 11, 2005, in which to oppose the motion. Plaintiff may have until February 23, 2005, in which to serve and file a reply.

Counsel: [*1] For FREEMAN, BERRELL, Plaintiffs: DAVID J. HARTH
For BERGE, GERALD, BOUGHTON, GARY, SHARPE, JOHN, HOMPE, BRAD, HUIBREGTSE, PETER, Defendants: CHARLES D. HOORNSTRA, ASSISTANT ATTORNEY GENERAL, MADISON, WI

Entered this 27th day of January, 2005. BY THE COURT: STEPHEN L. CROCKER Magistrate Judge

Judges: STEPHEN L. CROCKER, Magistrate Judge

 
 Freeman v. Berge
United States District Court for the Western District of Wisconsin April 18, 2005, Decided 03-C-0021-C

Reporter: 2005 U.S. Dist. LEXIS 7700 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; JOHN SHARPE, Unit Manager (former), in his individual capacity; and GRAD HOMPE, Unit Manager, in his individual capacity, Defendants.
Subsequent History: Later proceeding at Freeman v. Berge, 2005 U.S. Dist. LEXIS 9609 (W.D. Wis., May 16, 2005)
Prior History: Freeman v. Berge, 2005 U.S. Dist. LEXIS 2464 (W.D. Wis., Jan. 27, 2005)
Counsel: [*1] For Barrell Freeman, Plaintiff: Berrell Freeman.

Opinion
ORDER
In light of the recent decision of the Court of Appeals for the Seventh Circuit in Rodriguez v. Briley, 403 F.3d 952, 2005 U.S. App. LEXIS 6152, No. 04-1554 (7th Cir. Apr. 14, 2005), the parties are requested to supplement their briefs in support of and in opposition to defendants' post-judgment motions. Defendants may have until April 29, 2005, in which to supplement their brief in support of their motions. Plaintiff may have until May 9, 2005, in which to file a supplemental brief in opposition to the motions. There is no need for a reply. Entered this 18th day of April, 2005.

For Gerald Berge, Jon E Litscher, Defendants: Joely Urdan, BY THE COURT:

Assistant Attorney General, Madison, WI, USA.

BARBARA B. CRABB

Judges: BARBARA B. CRABB, District Judge.

District Judge

Opinion by: BARBARA B. CRABB

 
 Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 1 of 11
U.S. District Court Western District of Wisconsin (Madison) CIVIL DOCKET FOR CASE #: 3:03−cv−00021−bbc

CLOSED

FREEMAN, BERRELL v. BERGE, GERALD Assigned to: District Judge Barbara B. Crabb Referred to: Magistrate Judge Stephen L. Crocker Demand: $0 Cause: No cause code entered
Plaintiff

Date Filed: 01/23/2003 Date Terminated: 12/30/2004 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Berrell Freeman

represented by David J. Harth Perkins Coie LLP One East Main St., Ste. 201 Madison, WI 53703 608−663−7470 Fax: 608−663−7499 Email: DHarth@perkinscoie.com ATTORNEY TO BE NOTICED

V. Defendant Gerald Berge
Defendant Jon E. Litscher TERMINATED: 01/25/2008 Defendant Gary Boughton
Defendant John Sharpe
Defendant Brad Hompe
Defendant Peter Huibregtse

represented by Charles David Hoornstra Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707−7857 608−267−2775 Fax: 608−267−8906 Email: hoornstracd@doj.state.wi.us ATTORNEY TO BE NOTICED
represented by Charles David Hoornstra (See above for address) ATTORNEY TO BE NOTICED
represented by Charles David Hoornstra (See above for address) ATTORNEY TO BE NOTICED
represented by Charles David Hoornstra (See above for address) ATTORNEY TO BE NOTICED
represented by Charles David Hoornstra (See above for address) ATTORNEY TO BE NOTICED
represented by Charles David Hoornstra (See above for address) ATTORNEY TO BE NOTICED

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 2 of 11

Date Filed 01/23/2003 01/23/2003
01/23/2003
01/28/2003 02/13/2003
02/13/2003 02/13/2003
02/13/2003
02/20/2003
02/21/2003 03/18/2003 03/18/2003 03/20/2003
03/21/2003 03/21/2003 03/21/2003 03/21/2003 03/25/2003
03/25/2003
04/18/2003
04/18/2003 04/18/2003
04/18/2003 04/18/2003 04/25/2003 05/02/2003
05/30/2003 06/04/2003

# Docket Text
Jams Import Utility Entry (Entered: 01/23/2003)
Case Note: BRIEFING FOR MOT #216, JUDGMENT AS A MATTER OF LAW;AFTER TRIAL TRANSCRIPTS ARE FILED, SET 30/30/10 BRFG.JUDGMENT NEEDS REFERENCE TO #2, #129 (Entered: 01/23/2003)
1 ORDER REQUIRING PARTIAL FILING FEE OF $2.11 BY 02/03/2003 OR ACTION SUBJECT TO DISMISSAL (Entered: 01/23/2003)
RECD. INITIAL PARTIAL FILING FEE OF $2.21. (Entered: 01/28/2003)
2 ORDER TO PROCEED ifp − GRANTED IN PART; PETR. MOTION FOR APPOINTMENT OF COUNSEL DENIED. (Entered: 02/13/2003)
3 COMPLAINT (Entered: 02/13/2003)
4 MOTION BY PLTF./ FOR APPOINTMENT OF COUNSEL. (Entered: 02/13/2003)
MATERIALS MLD. TO ATTY. GENERAL FOR ACCEPTANCE OF SERVICE. (JMD) (Entered: 02/14/2003)
5 NOTICE OF APPEARANCE OF AAG URDAN ON BEHALF OF RESPTS. (Entered: 02/20/2003)
6 ACCEPTANCE OF SERVICE ON BEHALF OF DEFTS. (Entered: 02/24/2003)
7 MOTION BY PLTF. FOR DEFAULT JUDGMENT. (Entered: 03/18/2003)
8 AFFIDAVIT OF BERRELL FREEMAN. (Entered: 03/18/2003)
9 ORDER DENYING PLTF. MOTION FOR DEFAULT JUDGMENT. (Entered: 03/20/2003)
10 ANSWER (Entered: 03/21/2003)
11 MOTION BY DEFTS. TO DISMISS. (Entered: 03/21/2003)
12 BRIEF IN SUPPORT OF DEFTS. MOTION TO DISMISS. (Entered: 03/21/2003)
13 AFFIDAVIT OF JOHN RAY. (Entered: 03/21/2003)
14 BRIEF IN OPPOSITION BY PLTF. TO DEFTS. MOTION TO DISMISS. (Entered: 03/25/2003)
15 MOTION BY PLTF. TO EXPUNGE TESTIMONY/AFFIDAVIT OF JOHN RAY AND BAR HIS FUTURE TESTIMONY. (Entered: 03/25/2003)
16 BRIEF IN REPLY IN SUPPORT OF DEFTS. MOTION TO DISMISS. (Entered: 04/18/2003)
17 MOTION BY DEFTS. FOR PROTECTIVE ORDER. (Entered: 04/18/2003)
18 BRIEF IN SUPPORT OF DEFTS. MOTION FOR PROTECTIVE ORDER. (Entered: 04/18/2003)
19 AFFIDAVIT OF SANDRA J. HUTAMAKI. (Entered: 04/18/2003)
20 AFFIDAVIT OF JOELY URDAN. (Entered: 04/18/2003)
21 PTC ORDER (SLC) (Entered: 04/25/2003)
22 ORDER GRANTING DEFTS. MOTION FOR PROTECTIVE ORDER; DISCOVERY STAYED PENDING RESOLUTION OF MOTION TO DISMISS. (SLC) (Entered: 05/02/2003)
23 MOTION FOR APPOINTMENT OF COUNSEL BY PLTF. (Entered: 05/30/2003)
24 ORDER GRANTING IN PART DEFTS. MOTION TO DISMIS; DENYING PLTF. MOT. TO APPT. CNSL. (Entered: 06/04/2003)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 3 of 11

06/12/2003 06/13/2003 06/13/2003 06/20/2003
06/23/2003 06/23/2003 06/25/2003 06/25/2003 06/26/2003 06/26/2003 06/26/2003 06/27/2003 06/30/2003 06/30/2003
07/09/2003 07/21/2003 07/28/2003 07/31/2003
08/01/2003 08/04/2003 08/05/2003 08/06/2003 08/07/2003 08/07/2003 08/07/2003 08/07/2003

25 NOTICE OF APPEARANCE FOR DEFTS. (Entered: 06/12/2003)
26 MOTION BY PLTF. FOR RECONSIDERATION. (Entered: 06/13/2003)
27 MOTION BY PLTF. FOR COURT ORDER/INTERVENTION. (Entered: 06/13/2003)
28 ORDER DENYING IN PART PLTF. MOTION FOR RECONSIDERATION; DEFTS. TO ADVISE STATUS OF PLTF. LEGAL MATERIAL BY 6/26/03. (Entered: 06/20/2003)
29 MOTION BY PLTF. TO COMPEL DISCOVERY. (Entered: 06/23/2003)
30 MOTION BY PLTF. THAT MATTER IS ADMITTED OR THAT AN AMENDED ANSWER BE SERVED. (Entered: 06/23/2003)
31 MOTION BY PLTF. FOR ORDER TO PRODUCE DOCUMENTS. (Entered: 06/25/2003)
32 MOTION BY PLTF. TO TURN OVER/SUBMIT EVIDENCE. (Entered: 06/25/2003)
33 DEFTS. RESPONSE TO PLTF. MOTION TO COMPEL. (Entered: 06/26/2003)
34 DEFTS. RESPONSE TO PLTF. REQUEST FOR ADMISSIONS. (Entered: 06/26/2003)
35 DEFTS. RESPONSE TO PLTF. 1ST REQUEST FOR PRODUCTION OF DOCUMENTS. (Entered: 06/26/2003)
36 DEFTS. RESPONSE TO 6/19/03 ORDER. (Entered: 06/30/2003)
37 PLTF. REPLY TO DEFTS. RESPONSE TO MOTION TO COMPEL AND MOTION TO ADMIT. (Entered: 06/30/2003)
38 ORDER DENYING PLTF. MOT. FOR CT. ORDER/INTERVENTION; CT. PROVIDING PLTF. W/COPIES OF RECORD FOR PROSECUTION OF CLMS. (Entered: 06/30/2003)
39 PLTF. RESPONSE TO COURT ORDER OF 6/30/03. (Entered: 07/09/2003)
40 MOTION BY PLTF. FOR COURT APPOINTED EXPERTS. (Entered: 07/21/2003)
41 ORDER DENYING PLTF. REQUEST THAT THE COURT APPOINT EXPERT WITNESSES TO TESTIFY ON HIS BEHALF. (Entered: 07/28/2003)
42 ORDER DENYING MOTS. BY PLTF. TO COMPEL; GRANTING MOT. BY PLTF. THAT DEFT. PRODUCE RECORDS OF TEMPERATURES AT SMCI. (SLC) (Entered: 07/31/2003)
43 MOTION BY PLTF. FOR ORDER TO COMPEL DISCOVERY. (Entered: 08/01/2003)
44 MOTION BY PLTF. FOR RECONSIDERATION OF COURT ORDER OF 7/25/03. (Entered: 08/04/2003)
45 MOTION BY PLTF. FOR RECONSIDERATION OF COURT ORDER OF 7/30/03. (Entered: 08/05/2003)
46 ORDER DENYING PLTF. MOTION FOR RECONSIDERATION OF 7/25/03 ORDER. (Entered: 08/06/2003)
47 MOTION BY PLTF. TO RECONSIDER 7/30/03 ORDER. (Entered: 08/07/2003)
48 PLTF. DISCLOSURE OF EXPERT TESTIMONY. (Entered: 08/07/2003)
49 MOTION BY PLTF. FOR COURT ORDER THAT WITNESSES BE BROUGHT TO COURT AT TIME OF TRIAL. (Entered: 08/07/2003)
50 AFFIDAVIT OF BERRELL FREEMAN. (Entered: 08/07/2003)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 4 of 11

08/11/2003
08/13/2003
08/14/2003 08/14/2003 08/14/2003
08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/14/2003 08/15/2003 08/19/2003
08/20/2003
08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003 08/21/2003

51 MOTION BY PLTF. TO CEASE AND DESIST RETALIATION. (Entered: 08/11/2003)
52 ORDER DENYING PLTF. MOT. TO STOP/CEASE AND DESIST RETALIATION. (Entered: 08/13/2003)
53 MOTION BY PLTF. FOR FILING AND INFORMATION. (Entered: 08/14/2003) 54 MOTION FOR SUMMARY JUDGMENT BY PLTF. (Entered: 08/14/2003) 55 BRIEF IN SUPPORT OF PLTF. MOTION FOR SUMMARY JUDGMENT.
(Entered: 08/14/2003) 56 PLTF. PROPOSED FINDINGS OF FACT. (Entered: 08/14/2003) 57 AFFIDAVIT OF BERRELL FREEMAN. (Entered: 08/14/2003) 58 AFFIDAVIT OF JONATHAN P. COLE. (Entered: 08/14/2003) 59 AFFIDAVIT OF A'KINHO J.S. HASHIM−TIGGS. (Entered: 08/14/2003) 60 AFFIDAVIT OF JEREMY S. DAUBON. (Entered: 08/14/2003) 61 AFFIDAVIT (2ND) OF JEREMY S. DAUBON. (Entered: 08/14/2003) 62 AFFIDAVIT OF NORMAN C. GREEN. (Entered: 08/14/2003) 63 AFFIDAVIT OF RAYNELL D. MORGAN. (Entered: 08/14/2003) 64 AFFIDAVIT OF EDDIE JOHNIKIN. (Entered: 08/14/2003) 65 AFFIDAVIT (2ND) OF EDDIE JOHNIKIN. (Entered: 08/14/2003) 66 AFFIDAVIT OF JOHN SPICER. (Entered: 08/14/2003) 67 AFFIDAVIT OF ONTARIO DAVIS. (Entered: 08/14/2003) 68 PLTF. NOTICE OF CLARIFICATION TO COURT. (Entered: 08/15/2003) 69 MOTION BY PLTF. FOR ORDER TO COMPEL DISCOVERY. (Entered:
08/19/2003) 70 MOTION BY PLTF. TO WITHDRAW ACCESS AND PERMISSION TO USE
MEDICAL/CLINICAL RECORDS. (Entered: 08/20/2003) 71 AFFIDAVIT OF GLEN T. TURNER. (Entered: 08/21/2003) 72 AFFIDAVIT OF ANDRAE ROBERTS. (Entered: 08/21/2003) 73 AFFIDAVIT OF RODOSVALDO C. POZO. (Entered: 08/21/2003) 74 AFFIDAVIT OF NATE LINDELL. (Entered: 08/21/2003) 75 AFFIDAVIT OF DENNIS GONZALEZ. (Entered: 08/21/2003) 76 AFFIDAVIT OF WAYNE L. BREWER. (Entered: 08/21/2003) 77 AFFIDAVIT OF DENNIS E. JONES−EL. (Entered: 08/21/2003) 78 AFFIDAVIT OF JOSEPH D. KOUTNIK. (Entered: 08/21/2003) 79 AFFIDAVIT OF KARRY D. HILLEY, JR. (Entered: 08/21/2003) 80 AFFIDAVIT OF PRESLEY HUBANKS. (Entered: 08/21/2003) 81 AFFIDAVIT OF LEE A. WOFFORD. (Entered: 08/21/2003) 82 AFFIDAVIT OF KEEYON BARKER. (Entered: 08/21/2003) 83 AFFIDAVIT OF CARLOS G. ROSA (Entered: 08/21/2003) 84 AFFIDAVIT OF THOMAS EDWARD DEERING. (Entered: 08/21/2003)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 5 of 11

08/21/2003
08/21/2003
08/21/2003 08/21/2003
08/21/2003 08/21/2003
08/26/2003
08/27/2003
08/27/2003
08/29/2003
09/03/2003 09/03/2003 09/04/2003 09/05/2003 09/05/2003 09/05/2003 09/05/2003 09/05/2003 09/05/2003 09/05/2003
09/15/2003
09/15/2003 09/15/2003
09/15/2003
09/15/2003
09/15/2003
09/18/2003 09/18/2003 09/22/2003

85 PLTF. NOTICE TO COURT WITH PROOF OF OBSTRUCTION BY DEFTS. (Entered: 08/21/2003)
86 MOTION BY PLTF. FOR APPOINTMENT OF COUNSEL. (Entered: 08/21/2003)
87 MOTION BY PLTF. TO ADMIT MATTER. (Entered: 08/21/2003)
88 MOTION BY PLTF. FOR ORDER COMPELLING DISCOVERY. (Entered: 08/21/2003)
89 MOTION BY PLTF. FOR SUBPOENAS. (Entered: 08/21/2003)
90 MOTION BY PLTF. TO ADMIT MATTER AND FOR CONTEMPT OF COURT. (Entered: 08/21/2003)
91 MOTION BY PLTF. FOR ORDER TO STOP/CEASE AND DESIST RETALIATION. (Entered: 08/26/2003)
92 ORDER RULING ON MOTIONS NOS. 45, 47, 49, 53, 86 AND 91; BRFG. SET ON PLTF. MOTION FOR S/J. (Entered: 08/27/2003)
93 MOTION BY PLTF. FOR MENTAL HEALTH AND MEDICAL RECORDS. (Entered: 08/27/2003)
94 ORDER GRANTING MOTS. 43, 69, 87, AND 88; DENYING MOTS. 70, 90 AND 93; GRANTING IN PART MOT. 89. (SLC) (Entered: 08/29/2003)
95 MOTION BY PLTF. FOR RECONSIDERATION. (Entered: 09/03/2003)
96 PLTF. STATEMENT TO THE COURT. (Entered: 09/03/2003)
97 AFFIDAVIT OF BERRELL FREEMAN. (Entered: 09/04/2003)
98 MOTION FOR SUMMARY JUDGMENT BY DEFTS. (Entered: 09/05/2003)
99 BRIEF IN SUPPORT OF DEFTS. MOTION FOR S/J. (Entered: 09/05/2003)
100 PROPOSED FINDINGS/CONCL. BY DEFTS. (Entered: 09/05/2003)
101 AFFIDAVIT OF GERALD A. BERGE. (Entered: 09/05/2003)
102 AFFIDAVIT OF SAMUEL A. NELSON. (Entered: 09/05/2003)
103 AFFIDAVIT OF ELLEN RAY. (Entered: 09/05/2003)
104 RESPONSE TO PROPOSED S/J FINDINGS/CONCL. BY DEFTS. (Entered: 09/05/2003)
105 BRIEF IN OPPOSITION BY PLTF. TO DEFTS. MOTION FOR SUMMARY JUDGMENT. (Entered: 09/15/2003)
106 AFFIDAVIT OF BERRELL FREEMAN. (Entered: 09/15/2003)
107 RESPONSE TO PROPOSED S/J FINDINGS/CONCL. BY PLTF. (Entered: 09/15/2003)
108 MOTION BY PLTF. FOR SANCTIONS AND TO STRIKE AFFIDAVIT. (Entered: 09/15/2003)
109 MOTION BY PLTF. FOR RESPONSE PURSUANT TO 8/29/03 ORDER. (Entered: 09/15/2003)
110 MOTION BY PLTF. FOR ORDER COMPELLING DISCOVERY. (Entered: 09/15/2003)
111 MOTION BY PLTF. FOR CLARIFICATION. (Entered: 09/18/2003)
112 MOTION BY PLTF. FOR JOINDER. (Entered: 09/18/2003)
113 MOTION BY PLTF. TO REVISIT DENIAL OF CLAIM. (Entered: 09/22/2003)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 6 of 11

09/22/2003 09/24/2003 09/25/2003 10/06/2003 10/22/2003 10/23/2003 10/23/2003 10/23/2003 10/23/2003 10/29/2003 12/04/2003 12/04/2003 12/15/2003 12/16/2003 12/17/2003 12/17/2003
01/06/2004 01/07/2004
01/07/2004
02/02/2004 02/09/2004 02/13/2004 02/23/2004 05/03/2004
05/24/2004 05/24/2004

114 ORDER DENYING PLTF. MOTIONS FOR CLARIFICATION AND JOINDER. (Entered: 09/22/2003)
115 ORDER DENYING PLTF. MOTION TO REVISIT DENIAL OF CLAIM. (Entered: 09/24/2003)
116 ORDER DENYING PLTF. MOTION FOR RECONSIDERATION OF 8/26/03 ORDER DENYING MOTION FOR TRIAL WITNESSES. (Entered: 09/25/2003)
117 MOTION BY PLTF. TO ORDER DEFT. TO CEASE INTERFERING WITH MAIL. (Entered: 10/06/2003)
118 MOTION BY PLTF. TO COMPEL DISCOVERY. (Entered: 10/22/2003)
119 MOTION BY PLTF. TO STRIKE ALL EXHIBITS PRODUCED BY DEFTS. RE: MOTIONS FOR S/J. (Entered: 10/23/2003)
120 MOTION BY PLTF. FOR SANCTIONS AND TO HOLD DEFTS. IN CONTEMPT. (Entered: 10/23/2003)
121 MOTION (FIRST) BY PLTF. TO COMPEL. (Entered: 10/23/2003)
122 MOTION (SECOND) BY PLTF. TO COMPEL. (Entered: 10/23/2003)
123 MOTION BY PLTF. TO COMPEL DISCOVERY. (Entered: 10/29/2003)
124 MOTION BY PLTF. TO WITHDRAW ACCESS AND PERMISSION TO USE MEDICAL/CLINICAL RECORDS. (Entered: 12/04/2003)
125 ORDER DENYING PLTF. MOTIONS DOCKETED AS 108, 109, 110, 117, 118, 119, 120, 121, 122 AND 123. (Entered: 12/04/2003)
126 MOTION BY PLTF. FOR RECONSIDERATION. (Entered: 12/15/2003)
127 ORDER GRANTING IN PART PLTF. MOTION FOR RECONSIDERATION. (SLC) (Entered: 12/16/2003)
128 MOTION BY PLTF. FOR JUDICIAL NOTICE. (Entered: 12/17/2003)
129 ORDER PARTIALLY GRANTING DEFTS. MOTION FOR S/J; DENYING PLTF. MOTION FOR S/J; DMSG. DEFT. LITSCHER FROM CASE. (Entered: 12/17/2003)
130 MOTION BY PLTF. FOR PROTECTIVE ORDER AND TO REVISIT MOTION TO PRODUCE WITNESSES. (Entered: 01/06/2004)
131 ORDER DENYING PLTF. MOTION FOR PROTECTIVE ORDER AND TO REVISIT RULING ON WITNESS PRODUCTION AS MOOT. (SLC) (Entered: 01/07/2004)
132 ORDER APPOINTING ATTYS. DAVID HARTH AND SARAH WALKENHORST AS COUNSEL FOR PLTF; TRIAL DATE RESCINDED. (Entered: 01/07/2004)
133 ORDER ON 1/29/04 TELE. SCHEDULING CONF.; AMENDED COMPLAINT DUE 2/9/04; SCHEDULE AMENDED. (SLC) (Entered: 02/02/2004)
134 COMPLAINT − AMENDED. (Entered: 02/09/2004)
135 ORDER THAT AMENDED COMPLAINT OPERATIVE PLEADING IN CASE; DEFT. LITSCHER DISMISSED. (Entered: 02/13/2004)
136 ANSWER TO AMENDED COMPLAINT. (Entered: 02/23/2004)
137 ORDER − 2ND AMENDED SCHEDULING; SCHEDULE SET FOR FILING AND BRIEFING OF MOTION TO AMEND COMPLT.; SCHEDULE RESET. (SLC) (Entered: 05/03/2004)
138 DEPOSITION OF GERALD A. BERGE, TAKEN 4/27/04. (Entered: 05/24/2004)
139 DEPOSITION OF GARY A. BOUGHTON, TAKEN 4/27/04 AND 4/28/04. (Entered: 05/24/2004)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 7 of 11

05/24/2004 05/24/2004
05/24/2004 05/24/2004
05/24/2004 05/24/2004 05/24/2004
07/02/2004 07/02/2004
07/09/2004
07/09/2004
07/16/2004
07/20/2004 07/20/2004 07/22/2004
07/23/2004
07/26/2004 07/26/2004 07/27/2004
07/29/2004
07/29/2004 08/05/2004 08/12/2004
08/19/2004 09/01/2004 09/02/2004
09/07/2004 09/07/2004 09/08/2004

140 DEPOSITION OF ELLEN KAY RAY, TAKEN 4/28/04. (Entered: 05/24/2004)
141 DEPOSITION OF MICHAEL J. SLANEY, TAKEN 4/28/04. (Entered: 05/24/2004)
142 DEPOSITION OF JOHN S. SPICER, TAKEN 4/29/04. (Entered: 05/24/2004)
143 DEPOSITION OF HIPOLITO CLAUDIO, JR., TAKEN 4/29/04. (Entered: 05/24/2004)
144 DEPOSITION OF KEITH A. JONES, TAKEN 4/29/04. (Entered: 05/24/2004)
145 DEPOSITION OF COLETTE CULLEN, TAKEN 4/30/04. (Entered: 05/24/2004)
146 DEPOSITION OF JOSEPH PETER MAIER, M.D., TAKEN 4/30/04. (Entered: 05/24/2004)
147 PLTF. EXPERT REPORT OF LINDA FARLEY. (Entered: 07/02/2004)
148 PLTF. EXPERT REPORT OF CHARLES M. MONTGOMERY. (Entered: 07/02/2004)
149 MOTION BY PLTF. FOR LEAVE TO AMEND COMPLAINT. (Entered: 07/09/2004)
150 BRIEF IN SUPPORT OF MOTION FOR LEAVE TO AMEND COMPLAINT BY PLTF. (Entered: 07/09/2004)
151 MOTION BY PLTF. FOR LEAVE TO TAKE ADDITIONAL DEPOSITIONS. (Entered: 07/16/2004)
152 DEPOSITION OF LINDA FARLEY, TAKEN 7/15/04. (Entered: 07/20/2004)
153 EXPERT REPORT OF LINDA FARLEY. (Entered: 07/20/2004)
154 BRIEF IN OPPOSITION BY DEFT. TO PLTF. MOTION TO AMEND COMPLAINT. (Entered: 07/22/2004)
155 SUPPLEMENT TO DEFTS. OPPOSITION TO PLTF. MOTION TO AMEND COMPLAINT. (Entered: 07/23/2004)
156 PLTF. RULE 26 DISCLOSURES. (Entered: 07/26/2004)
157 DEFT. RULE 26 DISCLOSURES. (Entered: 07/26/2004)
158 ORDER GRANTING PLTF. LEAVE TO TAKE ADDITIONAL DEPOSITIONS. (SLC) (Entered: 07/27/2004)
159 ORDER GRANTING PLTF MOT/AMEND COMPLT; TRIAL DATE RESCINDED; PLTF TO SERVE AMENDED COMPLT; SCHED CONF. TO BE SET. (Entered: 07/29/2004)
160 COMPLAINT − SECOND AMENDED (Entered: 07/29/2004)
161 WAIVER OF SERVICE OF SUMMONS. (Entered: 08/05/2004)
162 DEPOSITION OF CHARLES W. MONTGOMERY, TAKEN 7/27/04. (Entered: 08/12/2004)
163 ANSWER TO SECOND AMENDED COMPLAINT. (Entered: 08/19/2004)
164 PTC ORDER (SLC) (Entered: 09/01/2004)
TELE. SCHEDULING CONFERENCE SET FOR 9/7/04, 11:00 AM. (SLC) (Entered: 09/02/2004)
165 MOTION BY RESPTS. TO DISMISS. (Entered: 09/07/2004)
166 BRIEF IN SUPPORT OF DEFTS. MOTION TO DISMISS. (Entered: 09/07/2004)
167 ORDER ON 9/7/04 TELE. SCHEDULING CONFERENCE; BRIEFING SET ON RESPTS. MOT. TO DMS. (SLC) (Entered: 09/08/2004)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 8 of 11

09/08/2004
09/09/2004 09/15/2004
10/01/2004
10/08/2004
10/13/2004
10/13/2004
10/13/2004 10/18/2004
10/21/2004
10/25/2004
11/01/2004
11/01/2004 11/10/2004 11/10/2004
11/12/2004 11/12/2004 11/12/2004 11/12/2004 11/15/2004 11/15/2004
11/15/2004 11/15/2004 11/15/2004 11/16/2004
11/16/2004
11/16/2004

168 PLTF. RESPONSE THAT DEFTS. MOTION TO DISMISS SHOULD BE DISMISSED WITHOUT FULL RESPONSIVE BRIEFING. (Entered: 09/10/2004)
169 DEFTS. RESPONSE RE: MOTION TO DISMISS. (Entered: 09/10/2004)
170 ORDER FINDING THAT DEFTS. ARE ENTITLED TO PURSUE MOTION TO DISMISS; BRIEFING TO PROCEED AS PREVIOUSLY SET. (Entered: 09/15/2004)
171 BRIEF IN OPPOSITION BY PLTF. TO DEFTS. MOTION TO DISMISS. (Entered: 10/05/2004)
172 BRIEF IN REPLY IN SUPPORT OF DEFTS. MOTION TO DISMISS. (Entered: 10/08/2004)
173 MOTION BY DEFTS. TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS. (Entered: 10/14/2004)
174 BRIEF IN SUPPORT OF DEFTS. MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS. (Entered: 10/14/2004)
175 AFFIDAVIT OF COREY F. FINKELMEYER. (Entered: 10/14/2004)
176 BRIEF IN OPPOSITION BY PLTF. TO RESPTS. MOTION TO STAY DISCOVERY PENDING RESOLUTION OF THEIR MOTION TO DISMISS. (Entered: 10/19/2004)
177 ORDER DENYING DEFTS. MOTION TO STAY DISCOVERY PENDING RESOLUTION OF MOTION TO DISMISS. (SLC) (Entered: 10/21/2004)
178 MOTION BY PLTF. FOR ISSUANCE OF WRIT OF H/C FOR APPEARANCE AT TRIAL ON 11/29/04 AND 11/30/04. (Entered: 10/25/2004)
179 NOTICE OF APPEARANCE OF JAMES MCCAMBRIDGE IN PLACE OF COREY FINKELMEYER FOR DEFTS. (Entered: 11/02/2004)
180 DEFTS. PRETRIAL DISCLOSURES. (Entered: 11/02/2004)
181 ORDER DENYING DEFTS. MOTION TO DISMISS. (Entered: 11/10/2004)
WRIT ISSUED FOR PLTF. APPEARANCE AT TRIAL; DELIVERED TO WSPF FOR SERVICE. (BBC) (Entered: 11/10/2004)
182 PROPOSED VOIR DIRE BY DEFTS. (Entered: 11/12/2004)
183 PROPOSED JURY INSTRUCTIONS BY DEFTS. (Entered: 11/12/2004)
184 PROPOSED SPECIAL VERDICT BY DEFTS. (Entered: 11/12/2004)
185 MOTION IN LIMINE BY DEFTS. (Entered: 11/12/2004)
186 PLTF. AMENDED PRETRIAL DISCLOSURES. (Entered: 11/15/2004)
187 MOTION IN LIMINE BY PLTF. TO EXCLUDE ANY EXPERT TESTIMONY BY DEFENSE WITNESSES. (Entered: 11/15/2004)
188 PROPOSED VOIR DIRE BY PLTF. (Entered: 11/15/2004)
189 PROPOSED JURY INSTRUCTIONS BY PLTF. (Entered: 11/15/2004)
190 PROPOSED SPECIAL VERDICT BY PLTF. (Entered: 11/15/2004)
191 DEPOSITION OF JOHN W. SHARPE, TAKEN 11/10/04. (VIDEOTAPE) (Entered: 11/16/2004)
192 DEPOSITION OF JOHN MURRAY, TAKEN 11/10/04. (SEALED) (Entered: 11/16/2004)
193 DEPOSITION OF PETER HUIBREGTSE, TAKEN 11/10/04. (VIDEOTAPE) (Entered: 11/16/2004)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 9 of 11

11/16/2004 11/16/2004 11/17/2004 11/18/2004 11/18/2004 11/19/2004
11/26/2004 11/26/2004 11/29/2004 11/29/2004 11/30/2004 12/01/2004
12/01/2004 12/01/2004 12/01/2004 12/01/2004 12/01/2004 12/03/2004 12/07/2004 12/07/2004 12/13/2004 12/23/2004 12/30/2004
01/10/2005
01/12/2005
01/12/2005

194 DEPOSITION OF PETER HUIBREGTSE, TAKEN 11/11/04. (SEALED) (VIDEOTAPE FILED 11/18/04) (Entered: 11/16/2004)
195 DEPOSITION OF BERRELL FREEMAN, TAKEN 11/11/04. (VIDEOTAPE FILED 11/18/04) (Entered: 11/16/2004)
196 DEPOSITION OF BRAD HOMPE, TAKEN 11/15/04. (VIDEOTAPE) (Entered: 11/17/2004)
197 PLTF. 2ND AMENDED PRETRIAL DISCLOSURES. (Entered: 11/18/2004)
198 CTRM. MIN. FINAL PRETRIAL CONFERENCE; CONFERENCE ADJOURNED TO 11/19/04 AT 2:00. (SLC) 10 (Entered: 11/19/2004)
199 CTRM. MIN. FINAL PRETRIAL CONFERENCE; 3 DAY TRIAL EST; MOTIONS IN LIMINE, VOIR DIRE, VERDICT FORM DISCUSSED. 22 (Entered: 11/19/2004)
200 ORDER ON FPTC; PLTF. AND DEFTS. MOTIONS IN LIMINE GRANTED. (Entered: 11/26/2004)
201 MOTION BY DEFTS. TO VOIR DIRE PLTF. EXPERTS. (Entered: 11/26/2004)
202 JURY SELECTION SHEET (Entered: 11/29/2004)
203 CTRM. MIN. JURY SELECTION AND FIRST DAY JURY TRIAL. (Entered: 11/30/2004)
204 CTRM. MIN. ; SECOND DAY JURY TRIAL. (Entered: 12/01/2004)
205 CTRM. MIN. ; THIRD DAY JURY TRIAL; JURY DELIBERATES; LIABILTY FOUND; DAMAGES AWARDED; BRFG. SET ON P/I RELIEF. (Entered: 12/02/2004)
206 JURY INSTRUCTIONS RE: LIABILITY. (Entered: 12/02/2004)
207 SPECIAL VERDICT RE: LIABILITY. (Entered: 12/02/2004)
208 JURY INSTRUCTIONS RE: DAMAGES. (Entered: 12/02/2004)
209 SPECIAL VERDICT RE: DAMAGES. (Entered: 12/02/2004)
MOTION FOR ENTRY OF PERMANENT INJUNCTIION. (Entered: 12/02/2004)
210 PLTF. PROPOSED PERMANENT INJUNCTION ORDER. (Entered: 12/03/2004)
211 DEFTS. OPPOSITION TO PLTF. PROPOSED PERMANENT INJUNCTION ORDER. (Entered: 12/08/2004)
212 AFFIDAVIT OF GERALD BERGE. (Entered: 12/08/2004)
213 BRIEF IN REPLY IN SUPPORT OF PLTF. PROPOSED PERMANENT INJUNCTION. (Entered: 12/14/2004)
214 ORDER GRANTING PLTF. MOTION FOR PERMANENT INJUNCTION. (Entered: 12/23/2004)
215 JUDGMENT DMSG. CERTAIN CLAIMS; AWARDING PLTF. INJ. RELIEF AND $1,250,000 AGNST. DEFTS. BERGE, HUIBREGTSE &HOMPE. CC MLD (Entered: 12/30/2004)
216 MOTION BY DEFTS. FOR JUDGMENT AS A MATTER OF LAW, TO AMEND JUDGMENT OR FOR A NEW DAMAGES TRIAL. (Entered: 01/10/2005)
217 ORDER SETTING BRIEFING ON DEFTS. MOTION FOR JUDGMENT AS A MATTER OF LAW, TO AMEND JUDGMENT OR FOR A NEW TRIAL. (Entered: 01/12/2005)
218 TRANSCRIPT OF FIRST DAY JURY TRIAL (VOLUME 1−A), HELD 11/29/04. (Entered: 01/12/2005)

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 10 of 11

01/12/2005 01/13/2005 01/13/2005 01/13/2005 01/18/2005 01/20/2005 01/20/2005 01/20/2005 01/20/2005 01/25/2005
01/28/2005 02/07/2005
02/07/2005 02/17/2005 02/18/2005 02/23/2005 03/22/2005
03/23/2005 03/30/2005 04/18/2005
04/29/2005 05/09/2005 05/10/2005 05/17/2005

219 TRANSCRIPT OF THIRD DAY JURY TRIAL (VOLUME 3), HELD 12/1/04. (Entered: 01/12/2005)
220 MOTION BY PLTF. FOR AWARD OF ATTORNEYS FEES, COSTS AND OUT OF POCKET EXPENSES. (Entered: 01/14/2005)
221 BRIEF IN SUPPORT OF PLTF. MOT. FOR AWARD OF ATTYS. FEES, COSTS AND OUT OF POCKET EXPENSES. (Entered: 01/14/2005)
222 AFFIDAVIT OF DAVID J. HARTH. (Entered: 01/14/2005)
223 AAG MCCAMBRIDGE WITHDRAWAL OF APPEARANCE FOR DEFTS; AAG HOORNSTRA WILL CONTINUE TO REPRESENT. (Entered: 01/19/2005)
224 TRANSCRIPT OF FIRST DAY JURY TRIAL (VOLUME 1−B), HELD 11/29/04. (Entered: 01/21/2005)
225 TRANSCRIPT OF SECOND DAY JURY TRIAL (VOLUME 2−A), HELD 11/30/04. (Entered: 01/21/2005)
226 TRANSCRIPT OF SECOND DAY JURY TRIAL AFTERNOON SESSION, HELD 11/30/04. (Entered: 01/21/2005)
227 MOTION (AMENDED) BY PLTF. FOR AWARD OF ATTY. FEES, COSTS AND OUT OF POCKET EXPENSES. (Entered: 01/21/2005)
228 ORDER GRANTING PLTF. REQUEST TO FILE AMENDED MOT. FOR ATTY. FEES; OPPOSITION DUE 2/11/05; REPLY DUE 2/23/05. (SLC) (Entered: 01/25/2005)
229 TRANSCRIPT OF JURY INSTRUCTIONS HELD 12/1/04. (Entered: 01/28/2005)
230 BRIEF IN OPPOSITION BY DEFTS. TO PLTF. MOTION FOR AWARD OF ATTY. FEES, COSTS AND OUT OF POCKET EXPENSES. (Entered: 02/07/2005)
231 AFFIDAVIT OF CHARLES D. HOORNSTRA. (Entered: 02/07/2005)
232 STIPULATION AND ORDER IN RE: PLTF. MOTION FOR ATTY. FEES, COSTS AND OUT OF POCKET EXPENSES. (Entered: 02/17/2005)
233 BRIEF IN SUPPORT OF DEFTS. POST JUDGMENT MOTIONS. (Entered: 02/18/2005)
234 BRIEF IN REPLY IN SUPPORT OF PLTF. MOTION FOR ATTY. FEES. (Entered: 02/24/2005)
235 STIPULATION AND ORDER EXTENDING TIME FOR PLTF. TO FILE RESPONSE TO DEFTS. POST JUDGMENT MOTS. UNTIL 3/23/05.(TMO) CC MLD (Entered: 03/22/2005)
236 BRIEF IN OPPOSITION BY PLTF. TO DEFTS. POST JUDGMENT MOTIONS. (Entered: 03/23/2005)
237 BRIEF IN REPLY IN SUPPORT OF DEFTS. POST JUDGMENT MOTIONS. (Entered: 03/30/2005)
238 ORDER REQUESTING PARTIES TO SUPPLEMENT POST−JUDGMENT BRIEFS; DEFTS. SUPPORT 4/29/05; PLTF. OPPO. 5/9/05; NO REPLY. (Entered: 04/18/2005)
239 BRIEF IN SUPPORT (SUPPLEMENT) OF DEFTS. POST JUDGMENT MOTIONS. (Entered: 04/29/2005)
240 BRIEF IN OPPOSITION (SUPPLEMENTAL) BY PLTF. TO DEFTS. POST JUDGMENT MOTIONS. (Entered: 05/10/2005)
241 PLTF. NOTICE OF CHANGE OF FIRM NAME. (Entered: 05/10/2005)
242 ORDER GRANTING DEFTS. MOTION FOR JUDGMENT AS A MATTER OF LAW; JUDGMENT VACTED; PLTF. MOT./ATTY FEES DENIED AS MOOT.

Case: 3:03-cv-21 As of: 03/26/2013 11:07 AM CDT 11 of 11

05/19/2005 05/23/2005 05/24/2005 06/20/2005 06/22/2005
07/01/2005 08/15/2005 10/03/2005 10/03/2005 04/17/2006 04/19/2006

(Entered: 05/17/2005)
243 JUDGMENT − AMENDED VACATING 12/30/04 JUDGMENT; DISMISSING CASE AS TO ALL DEFTS. (BBC/TMO) CC MLD (Entered: 05/19/2005)
244 NOTICE OF APPEAL BY PLTF. NO FEE PAID, NO DS FILED, SR SENT CC:PARTIES (05−2512) (Entered: 05/24/2005)
245 AFFIDAVIT (PETITION) OF PLTF TO APPEAL IFP. (Entered: 05/24/2005)
246 NOTICE OF APPEAL BY PLTF. FEE PAID, DS FILED, SR SENT CC:PARTIES (05−2820) (Entered: 06/20/2005)
247 ORDER THAT PLTF'S APPEAL OF 5−23−05 W/BE DISREGARDED BECAUSE PLTF HAS APPTD ATTY. TRANS OF TRIAL PROD &FEES PAID BY US. (Entered: 06/22/2005)
RECORD PREPARED (Entered: 07/01/2005)
248 ORDER FROM USCA DISMISSING #05−2512 AS DUPLICATIVE AND WAIVING THE APPEAL FEE FOR THIS APPEAL. (Entered: 08/15/2005)
Certified and Transmitted Record on Appeal to US Court of Appeals re 246 Notice of Appeal (Entered: 10/03/2005)
RECORD SENT (Entered: 09/29/2005)
249 JUDGMENT FROM USCA AFFIRMING DIST CRT. (05−2820) RECORD NOT RETURNED (Entered: 04/17/2006)
RECORD RETURNED (Entered: 04/19/2006)

 
 441 F.3d 543 (2006)
Berrell FREEMAN, Plaintiff-Appellant, v.
Gerald A. BERGE, et al., Defendants-Appellees.
No. 05-2820.
United States Court of Appeals, Seventh Circuit.
Argued November 7, 2005. Decided March 23, 2006.
544 *544 David J. Harth, Sarah C. Walkenhorst (argued), Heller Ehrman LLP, Madison, WI, for Plaintiff-Appellant.
Charles D. Hoornstra (argued), Peggy A. Lautenschlager, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.
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 inflicted cruel and unusual punishment on inmate Freeman by denying him meals. The jury awarded him $50,000 in compensatory 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.
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 545 serious harm on the prisoner it is also cruel. Reed v. McBride, 178 F.3d 849, 853-54 (7th Cir. *545 1999); Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.2002); see Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir.2001); Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th 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 0907 that you not throw back the food in the server's face. In such a case Freeman would be the author of his deprivation rather than a victim of punishment. 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, ejaculate, 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 noncompliance.
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 potential 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.
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 unconstitutional 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 0907 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 privileges, 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 546 privileges, without the *546 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 seriously 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 0907 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, 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); Talib v. Gilley, supra, 138 F.3d at 216; In re Caulk, 125 N.H. 226, 480 A.2d 93, 96 (1984); People ex rel. Illinois Dept. of Corrections v. Millard, 335 Ill.App.3d 1066, 270 Ill.Dec. 407, 782 N.E.2d 966, 972 (2003), but at some point it may have to forcefeed the prisoner to prevent him from seriously endangering his health.
Two situations can be distinguished. In the first, the prisoner 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. McCaughtry, 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, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); see Washington v. Glucksberg, 521 U.S. 702, 722 n. 17, 117 S.Ct. 2258, 138 L.Ed.2d 772 (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, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297, 300, 305 (1986); see also Washington v. Glucksberg, supra, 521 U.S. at 723, 117 S.Ct. 2258, 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. A1. But either prisoners don't have such an interest, or it is easily overridden. In re Grand Jury Subpoena John Doe, 150 F.3d 170, 172 (2d Cir.1998) (per curiam); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.1992); Laurie v. Senecal, 666 A.2d 806, 809 (R.I.1995); In re Caulk, supra, 480 A.2d at 96-97; State ex rel. White v. Narick, 170 W.Va. 195, 292 S.E.2d 54, 58 (1982); McNabb v. Department of Corrections, 127 Wash.App. 854, 112 P.3d 592, 594-95 (2005); People ex rel. Dept. of Corrections v. Fort, 352 Ill.App.3d 309, 287 Ill.App.3d 309, 287 Ill.Dec. 443, 815 N.E.2d 1246, 1250-51 (2004); contra, Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715, 716-17 (1982).
547 *547 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 other prisoners. Prison officials who let prisoners starve themselves to death would also expose themselves to lawsuits by the prisoners' estates. Reckless 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 incarceration 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, 134 Pa.Cmwlth. 415, 580 A.2d 887, 893 (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 employees 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, went eight days straight without a meal. But there is no indication 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 intervention. 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 deprivation 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.
Save trees - read court opinions online on Google Scholar.

 
 Freeman v. Berge, 68 Fed.Appx. 738 (2003)

68 Fed.Appx. 738 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Seventh Circuit Rule 32.1.
(Find CTA7 Rule 32.1) United States Court of Appeals,
Seventh Circuit.

Berrell FREEMAN, et al., Plaintiffs-Appellants, v.
Gerald A. BERGE, Warden, Wisconsin Secure Program Facility, and Matthew J. Frank,
Secretary, Wisconsin Department of Corrections, Defendants-Appellees.

No. 02-2191. | Submitted June 18, 2003.*

*

After an examination of the briefs and the record, we

have concluded that oral argument is unnecessary.

Thus, the appeal is submitted on the briefs and the

record. See Fed. R.App. P. 34(a)(2).

| Decided June 20, 2003.
*739 Appeal from the United States District Court for the Western District of Wisconsin. No. 00-C-421-C. Barbara B. Crabb, Chief Judge.
Before MANION, ROVNER, and DIANE P. WOOD, Circuit Judges.
Opinion

ORDER
Berrell Freeman and seven of his fellow unnamed class members appeal pro se from the district court’s judgment approving a settlement of their civil rights suit that challenged the conditions at the Wisconsin Secure Program Facility in Boscobel, *740 Wisconsin. Because they have not demonstrated that the district court abused its discretion in rejecting their objections and approving the settlement, we affirm.

Background The Wisconsin Secure Program Facility, formerly known

as the Supermax Correctional Institution, is a 500-bed technologically advanced, super-maximum prison in northern Wisconsin purportedly designed to house the state’s most dangerous and recalcitrant inmates. The conditions at the prison are isolating and unpleasant for all of its inmates but particularly for those in the most restrictive levels of custody. The prison employs an incentive system; inmates sent there typically start in the most restrictive level, Level One, and with good behavior can progress to the least restrictive, Level Five, and then to another institution. The district court described the conditions on Level One at the time of this suit as especially harsh, ranging from sensory deprivation to extreme isolation and near-total confinement to their cells:
Inmates on Level One at the State of Wisconsin’s Supermax Correctional Institution in Boscobel, Wisconsin spend all but four hours a week confined to a cell. The “boxcar” style door on the cell is solid except for a shutter and a trap door that opens into the dead space of a vestibule through which a guard may transfer items to the inmate without interacting with him. The cells are illuminated 24 hours a day. Inmates receive no outdoor exercise. Their personal possessions are severely restricted: one religious text, one box of legal materials and 25 personal letters. They are permitted no clocks, watches, cassette players or televisions. The temperature fluctuates wildly, reaching extremely high and low temperatures depending on the season. A video camera rather than a human eye monitors the inmate’s movements. Visits other than with lawyers are conducted through video screens.
See Jones ‘El v. Berge, 164 F.Supp.2d 1096, 1098 (W.D.Wis.2001). Many inmates, particularly mentally ill prisoners, could not adequately conform their behavior to the institutional requirements and found themselves stuck in Level One for months at a time. Not surprisingly, the harsh conditions in the most restrictive levels of custody exacerbated the symptoms of mentally ill prisoners.
Shortly after the prison opened in Fall 1999, inmates Dennis Jones’el and Micha‘el Johnson sued their
1

Freeman v. Berge, 68 Fed.Appx. 738 (2003)
custodians on behalf all of Supermax inmates, alleging among other things that the conditions at the prison were so severe that they ran afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court appointed counsel for Jones’el, Johnson, and the class of “all persons who are now, or will in the future be, confined at Supermax Correctional Institution in Boscobel, Wisconsin,” which the court certified for injunctive relief only. Shortly thereafter the plaintiffs moved for preliminary injunctive relief focusing exclusively on the seriously mentally ill inmates. In October 2001 the court granted the plaintiffs’ motion, ordering the defendants to stop housing seriously mentally ill inmates at the facility and to arrange for independent mental health professionals to immediately evaluate certain categories of inmates. See Jones ‘El, 164 F.Supp.2d at 1125-26.
Two months later, after extensive negotiations among class counsel, the named plaintiffs, and counsel for defendants, a comprehensive settlement was reached. In addition to restricting the defendants’ ability to house mentally ill inmates at the prison, the agreement purports to guarantee all inmates confined there at least the *741 same rights and privileges of inmates confined in segregation in other maximum security prisons in the state. The defendants agreed to ease the extreme isolation and sensory deprivation by restricting the time during which inmates could remain in Level One status to not more than seven days absent cause and for an additional seven days with cause. Inmates were to be provided more out-of-cell exercise, cell shutters that open to the hallway, more reading material, expanded face-to-face visitation, a minimum of three showers a week, reduced physical restraints, increased phone privileges, calendar clocks in each cell to give them some temporal reference, and dim cell lighting at night to ease sleep. Notably, the defendants also agreed to build an outdoor recreational area, regulate cell temperatures, and refrain from using certain stunning devices inside cells and from punishing prisoners by feeding them nothing but “nutri-loaf,” a blended and baked compost of prison food. An independent monitor was appointed to ensure that the agreement was implemented properly.
The district court gave notice of the proposed settlement to the class members and permitted them thirty days to object or otherwise comment. More than 100 prisoners objected to various aspects of the proposed settlement, including Freeman and the other seven appellants. The district court reviewed the objections at a “fairness” hearing held on March 8, 2002, and a few weeks later approved the settlement. In its March 28, 2002 order of approval, the court noted that the common theme of the objections was that the proposed settlement did not go far enough in alleviating the harsh conditions at the prison.

The district court, however, reasoned that as much as the objectors “would like to have a broader scope of relief,” the agreement “achieved a great deal” in ameliorating the most oppressive conditions. The court went on to conclude that the settlement was “fair, reasonable, lawful and adequate as a resolution of this class action.” The agreement left it up to the district court to define “mental illness.” After holding hearings on that issue, the court set forth a definition and entered final judgment approving the agreement on June 24, 2002. This appeal followed.
Analysis
[1] At the outset, we note that unnamed class members like these appellants who objected to the proposed settlement in the district court are entitled to appeal the court’s decision to disregard their objections and approve the agreement. See Devlin v. Scardelletti, 536 U.S. 1, 14, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002). Our review of the district court’s decision to approve the agreement, however, is narrow; we will reverse only if the district court abused its discretion. See Uhl v. Thoroughbred Technology & Telecommunications, Inc., 309 F.3d 978, 986 (7th Cir.2002); Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir.1996). Because federal courts favor the settlement of class action litigation, a district court properly limits its inquiry to whether the proposed settlement is lawful, fair, reasonable, and adequate. Uhl, 309 F.3d at 986.
Freeman and the other unnamed class members contend that the district court abused its discretion in approving a settlement that, in their view, is unlawful insofar as it allows conditions at the prison to remain below constitutional standards. This is not, however, the right way to look at the settlement. Our focus is upon the general principles governing approval of class action settlements and not upon the substantive law governing the claims asserted in the litigation. Isby, 75 F.3d at 1197. The presence of constitutional claims does not prevent us from applying those principles, so long as the agreement *742 does not “authorize[ ] the continuation of clearly illegal conduct.” Id. In making that determination, this court must not decide unsettled legal questions; “any illegality or unconstitutionality must appear as a legal certainty on the face of the agreement.” Id. As such, “prior judicial decisions must have found that practice to be illegal or unconstitutional as a general rule.” Id. (internal citation and quotations omitted).
[2] The appellants do not come close to making that showing here. They do not identify any specific illegal or unconstitutional practice that is certain to continue despite the agreement. Rather, they generally complain that the
2

Freeman v. Berge, 68 Fed.Appx. 738 (2003)
agreement leaves too much discretion in the hands of prison administrators to implement the “thousands of rules, regulations, policies, and procedures enforced upon the prisoners”; permits substantially more restrictive conditions than those in the state’s other maximum security prisons; and does not adequately address the mental deterioration to healthy inmates caused by those conditions. In affirming the approval of a settlement of a similar prison conditions case, we cautioned that “the essence of settlement is compromise.... A settlement will not be rejected solely because it does not provide a complete victory to the plaintiffs.” Isby, 75 F.3d at 1200 (internal citation and quotations omitted). Likewise, although appellants may not have gotten everything they wanted here, the settlement achieved significant reforms, limiting substantially the amount of time inmates could be continuously confined to Level One and mandating comprehensive improvements aimed at generally reducing the isolation and sensory deprivation that the inmates experience throughout the prison. We cannot say that there is anything unlawful from the face of this agreement.
The appellants’ arguments concerning the agreement’s maintenance of the “level” program at the prison do not suggest otherwise. They argue that the agreement gives the warden unfettered discretion to extend an inmate’s stay on Level One past the seven days prescribed by the agreement. But, contrary to the appellants’ assertion, the warden’s discretion to exceed the seven days is confined; the monitor must be notified of all stays exceeding more than fourteen days, and any extended stays must be supported by serious disciplinary infractions established after a hearing. They also argue that the agreement is illegal because it does not mandate hearings to review level determinations. The district court considered this argument at the fairness hearing but properly rejected it, noting that the court had denied the class leave to proceed on that issue because “Supreme Court law is so clear that those kind of hearings are not required for promotion or demotion from one level to another.” Indeed, appellants would face an uphill battle to demonstrate their entitlement to due process before being transferred among levels, since prisoners generally do not have a federally protected liberty interest in being housed in a particular facility or a less restrictive area within a facility. See Sandin v. Connor, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Pischke v. Litscher, 178 F.3d 497, 499 (7th Cir.1999). In any event, the settlement agreement requires that only prisoners placed in a “specified segregation status” may be sent to the prison

and that those prisoners receive a disciplinary hearing before being placed in that status.
[3] The appellants’ criticisms of the agreement do not show that it was unlawful, much less that the district court erred in finding the settlement fair, reasonable, and adequate. In making that determination, a district court should examine (1) the *743 strength of the plaintiffs’ case compared to the amount of the settlement offer; (2) an assessment of the likely complexity of a trial; (3) the length and expense of the litigation; (4) the amount of opposition to settlement among affected parties; (5) the opinion of competent counsel; and (6) the stage of the proceedings and amount of discovery completed at the time of settlement. Isby, 75 F.3d at 1199. The district court properly considered those factors. The court found that the class members probably attained better results from the settlement than they would have obtained after a lengthy, expensive, and complex trial. Although class members objected to various aspects of the settlement, the court correctly noted that many of the objections concerned individualized complaints or matters that were never raised in the lawsuit or approved for class certification (such as the absence of hearings for level determinations), and lacked merit in any event. The court further reasoned that the monitor could address individual complaints not explicitly covered by the agreement. Finally, the district court also properly relied on the opinion of class counsel, a team of experienced and wellrespected civil rights attorneys, who reached this agreement only after exhaustive negotiations and extensive discovery. We are fully satisfied that the district court properly exercised its discretion in this case when disregarding the appellants’ objections and approving the settlement.
[4] The appellants also contend that over the past year the agreement has done little to change anything at the prison except its name. To the extent that these prisoners believe that the defendants have not lived up to their end of the bargain, however, their remedy is to enforce the agreement, not attack it.
AFFIRMED
Parallel Citations
2003 WL 21462603 (C.A.7 (Wis.))
	  

3

 
 State ex rel. Freeman v. Berge, 266 Wis.2d 1063 (2003)
266 Wis.2d 1063 Unpublished Disposition See Rules of Appellate Procedure, Rule 809.23(3), regarding citation of unpublished opinions. Unpublished opinions issued before July 1, 2009, are of no precedential value and may not be cited except in limited instances. Unpublished opinions issued on or after July 1, 2009 may be cited for persuasive value. NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A
REPORTER TABLE. Court of Appeals of Wisconsin.
STATE of Wisconsin EX REL. Berrell FREEMAN, Petitioner-Appellant, v.
Gerald BERGE, Respondent-Respondent.
No. 03-0802. | July 24, 2003.
Appeal from an order of the circuit court for Dane County: Diane M. Nicks, Judge. Affirmed.
Before VERGERONT, P.J., DYKMAN and DEININGER, JJ.
Opinion
PER CURIAM.
*1 Berrell Freeman appeals from an order dismissing his certiorari review action. The trial court concluded that the action was rendered moot by subsequent events. We agree, and therefore affirm.
¶ 2 While incarcerated at Whiteville Correctional Facility in Tennessee, Freeman was charged with a major disciplinary infraction for his role in a violent prison riot that occurred in November 1999. He was found guilty in a disciplinary proceeding at the facility on December 9, 1999, and transferred to the Wisconsin Secure Program Facility (WSPF) (formerly Supermax Correctional Institution) in April 2000. Relying on the Whiteville disciplinary findings, the Department of Corrections administrative confinement review committee (ACRC) ordered his placement in administrative confinement.
¶ 3 After seeking various administrative remedies Freeman commenced this action by filing a petition for writ of habeas corpus, in which he challenged the Whiteville disciplinary decision, the decision transferring him to WSPF and the decision to place him in administrative confinement. The trial court construed the petition as one seeking certiorari review of the three administrative decisions, and dismissed it because Freeman did not exhaust his administrative remedies before filing it. Freeman appealed, and on review we reversed in part and remanded to allow Freeman to proceed on his challenge to the ACRC decision of April 2000. State ex rel. Freeman v. Berge, 2002 WI App 213, ¶ 1, 257 Wis.2d 236, 651 N.W.2d 881.
¶ 4 Meanwhile, other inmates had successfully challenged administrative confinements also imposed because of their participation in the Whiteville riot, on the grounds that the subsequent Whiteville disciplinary proceedings were procedurally invalid. See State ex rel. Curtis v. Litscher, 2002 WI App 172, 256 Wis.2d 787, 650 N.W.2d 43. In such cases, this court held that the DOC could impose administrative confinement based on the Whiteville riot participation only to the extent that it proved the inmate’s participation without relying on findings of the Whiteville disciplinary proceedings. Id. at ¶ 1.
¶ 5 Consequently, the DOC vacated Freeman’s administrative confinement decision of April 2000, and conducted an independent investigation of his conduct during the riot. After that investigation revealed Freeman’s significant participation in the riot, the ACRC again placed him in administrative confinement.
¶ 6 Because Freeman was confined due to subsequent proceedings, and the April 2000 decision no longer affected his status, the trial court declared his action moot. This appeal concerns that determination.
¶ 7 The trial court properly dismissed this proceeding as moot. An action is moot when its resolution will have no practical effect on the parties. See State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis.2d 685, 608 N.W.2d 425. At this point, the proceeding concerns a voided decision that has no bearing on Freeman’s present status. It is moot.
1

State ex rel. Freeman v. Berge, 266 Wis.2d 1063 (2003) ¶ 8 Freeman nevertheless contends that we should reverse and allow him to proceed on a challenge to the subsequent ACRC decision continuing his administrative confinement. He contends that the petition should be converted back into one seeking habeas corpus relief in order to accomplish this. However, habeas corpus relief is not available if other remedies are. State ex rel. Dowe v. Waukesha County Cir. Court, 184 Wis.2d 724, 729, 516 N.W.2d 714 (1994). Freeman’s other remedies, after the subsequent, independent determination of the ACRC, were to pursue his administrative remedies and, if still aggrieved, to initiate certiorari review. He cannot skip over those steps and bootstrap review of the subsequent, independent proceedings into this action, regardless how the petition is labeled. *2 By the Court.-Order affirmed. This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. Parallel Citations 668 N.W.2d 564 (Table), 2003 WL 21705992 (Wis.App.), 2003 WI App 188
2

 
 Freeman v. Berge, Not Reported in F.Supp.2d (2004)
2004 WL 1196815 Only the Westlaw citation is currently available.
United States District Court, W.D. Wisconsin.
Berrell FREEMAN, Plaintiff, v.
Gerald A. BERGE, Stephen Casperson, Secretary of DOC, and John Sharpe, Defendants.
No. 04–C–302–C. | May 27, 2004.
Attorneys and Law Firms
Berrell Freeman, pro se.
Charles D. Hoornstra, Assistant Attorney General, Madison, WI, for Defendants.
Opinion
ORDER
CRABB, J.
*1 Plaintiff Berrell Freeman is an inmate at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. He filed this complaint in the Circuit Court for Dane County, Wisconsin; defendants have removed it to this court pursuant to 28 U.S.C. §§ 1441 and 1446. Plaintiff has objected to the removal. Although I conclude that it was proper for defendants to remove this case to federal court because plaintiff raised federal claims, after screening the complaint, I find that none of the federal claims that plaintiff has alleged survive the screening. With only state claims left, the case will be remanded to state court.
A defendant may remove to federal court any action brought in state court over which the federal court has original jurisdiction. 28 U.S.C. § 1441(a). Plaintiff raises the following federal law claims in his complaint: (1) defendants retaliated against him by keeping him at the Secure Program Facility after he successfully challenged one of his incident reports, in violation of the First Amendment; (2) defendants are denying plaintiff’s right to due process under the Fourteenth Amendment by keeping him in administrative confinement without sufficient evidence of wrongdoing; (3) defendants have transferred other inmates out of the Secure Program Facility when they successfully challenged their disciplinary infractions, in violation of the equal protection clause of the Fourteenth Amendment; (4) defendants found plaintiff guilty of misconduct in May

2003 without sufficient evidence, in violation of the due process clause; (5) defendants are keeping plaintiff at the Secure Program Facility, where the conditions are harsher and more restrictive than those at other maximum security prisons, in violation of the equal protection clause.
Plaintiff raises the following state law claims in his complaint: (1) defendant Sharpe failed to comply with Wis. Admin. Code § DOC 303.76(6)(f) in connection with plaintiff’s disciplinary proceeding on conduct report # 1412234; (2) defendants are denying plaintiff a right to call witnesses at his “administrative confinement hearings;” and (3) defendants violated state law when they failed to expunge all references to the incident report that resulted in plaintiff’s transfer and loss of a job.
Federal courts have original jurisdiction over cases raising questions of federal constitutional law, such as those plaintiff raises in his complaint. Therefore, this court has original jurisdiction over plaintiff’s constitutional claims under 18 U.S.C. § 1331. Further, a federal district court may exercise supplemental jurisdiction over state law claims that form part of the same case or controversy as federal law claims. 28 U.S.C. § 1367(a).
Although defendants paid the full filing fee at the time of removal, because plaintiff is a prisoner and defendants are government officers, this court is required to screen the complaint, identify the claims and dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b).
*2 I conclude that each of plaintiff’s federal claims must be dismissed. With respect to plaintiff’s First Amendment retaliation claim, I decided in Freeman v. Wisconsin Dep’t. of Corrections, 02–C–348–C, that plaintiff did not state a claim for retaliation because he admitted in his complaint that the allegedly unconstitutional re-labeling of his disciplinary infraction did not occur as the result of his exercise of a constitutional right. Accordingly, this claim is barred by the doctrine of issue preclusion. With respect to his due process claims, plaintiff has not identified a liberty or property interest that would trigger the protections of the due process clause. Finally, plaintiff’s equal protection claims fail because there is a rational basis for any differential treatment he may have received. Because I am dismissing all of plaintiff’s federal claims, I decline to exercise supplemental jurisdiction over his state law claims. These claims will be remanded to the Circuit Court for Dane County.
In addressing any pro se litigant’s complaint, the court must construe the complaint liberally. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
1

Freeman v. Berge, Not Reported in F.Supp.2d (2004)
In his complaint, plaintiff makes the following allegations of fact.
ALLEGATIONS OF FACT
At all relevant times, plaintiff was a prisoner at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. Defendant Gerald Berge was the warden and defendant John Sharpe was a hearing officer at the Facility. Defendant Stephen Casperson is alleged to be the “DAI” Administrator in the Wisconsin Department of Corrections.
On or about December 9, 1999, plaintiff was found guilty of a major disciplinary infraction and transferred to the Wisconsin Secure Program Facility, where he was placed in administrative confinement. In or around August 2001, plaintiff successfully challenged the disciplinary infraction that precipitated his transfer. Under state law, the disciplinary documents and incident reports should have been expunged from plaintiff’s records and not used for any placement decisions. However, because plaintiff successfully challenged the disciplinary infractions leading to his transfer, defendants retaliated against him by creating a document titled “Disturbance Review,” which is composed of an incident report related to the expunged incident report and other documents relied upon to bring the charges in the initial incident report. In plaintiff’s view, the “disturbance review” is nothing more than a re-labeled disciplinary infraction that was to have been expunged from his record.
The “disturbance review” is based on hearsay, confidential informant statements, “mere allegations” and “bald assertions.” Defendants have produced no evidence that plaintiff is an active gang member or affiliated with an active gang. Nevertheless, they are using this review as a reason to keep plaintiff in administrative confinement. Defendants have refused to pay plaintiff the back pay and wages that he lost as a result of the erroneous disciplinary conviction that led to his transfer.
*3 Defendants have denied plaintiff the right to call witnesses at his administrative confinement hearings. Other inmates similarly situated to plaintiff who successfully challenged the disciplinary infractions that led to their transfer to the Wisconsin Secure Program Facility were moved from the Facility and taken out of administrative confinement.
On May 5, 2003, plaintiff was found guilty of conduct report # 1412234. Defendant Sharpe was the hearing officer who found plaintiff guilty. Defendant Berge received plaintiff’s appeal but did not make a decision within 60 days of the date he received plaintiff’s appeal.

Therefore, the hearing officer’s decision was deemed affirmed. On July 16, 2003, plaintiff received the record of witness testimony form. The form contained no explanation why the testimony and evidence that plaintiff gave was not credible. Plaintiff presented evidence that he was not guilty of the violation of conduct report # 1412234 and was still found guilty.
The conditions of confinement at the Wisconsin Secure Program Facility are more harsh and restrictive than the normal prison environment. Plaintiff’s treatment is inconsistent with the treatment of maximum custody inmates at Dodge, Columbia, Green Bay and Waupun Correctional Institutions.
DISCUSSION
A. Retaliation
Plaintiff has made a viable allegation of retaliation. He alleges that “defendants” retaliated against him for mounting a successful challenge against an incident report that served as the ground for removing him from his job and transferring him to the Wisconsin Secure Program Facility, and that defendants did this by creating a document titled “Disturbance Review,” which is nothing more than the incident report re-labeled. According to plaintiff, defendants are using this disturbance review to keep him in administrative confinement at the Wisconsin Secure Program Facility and to deny him back pay and lost wages. This allegation of retaliation for exercising his right to file a grievance or lawsuit is sufficiently detailed to put the defendants on notice of the retaliation claim so that they may file an answer. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002) (indicating that plaintiff’s charge that he was placed in lockdown segregation for 11 days after bringing lawsuit satisfied bare minimum facts necessary to put defendant on notice of claim so that he could file answer); see also Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002) (stating that there is no pleading requirement to allege chronology of events from which retaliation may plausibly be inferred). Nevertheless, plaintiff cannot proceed on this claim.
The obstacle to proceeding is that plaintiff has already litigated the claim in this court. In Freeman v. Wisconsin Dept. of Corrections, 02–C–348–C, plaintiff alleged that the disciplinary infractions for which he was sent to the Secure Program Facility were expunged after “inmates” successfully challenged the infractions in State ex rel. Curtis v. Litscher, 00–CV–1604, aff’d, 2002 WI App 172, 256 Wis.2d 787, 650 N.W.2d 43. In Curtis, seven inmates challenged disciplinary decisions in which they had been
2

Freeman v. Berge, Not Reported in F.Supp.2d (2004)
found guilty of participating in a prison riot in 1999. Both the circuit court and the court of appeals agreed with the inmates that the disciplinary hearings conducted by the prison were invalid under state regulations because the hearing examiner had been a witness to the riot. However, the court of appeals held that the Department of Corrections could hold new hearings to determine whether the inmates engaged in conduct justifying placement in administrative confinement.
*4 In 02–C–348–C, plaintiff alleged that the defendants attempted to avoid the holding of Curtis as it applied to him by re-labeling his infraction as a “disturbance review” so that they could keep him at the Secure Program Facility. In the screening order for 02–C–348–C, I concluded that keeping plaintiff in administrative confinement for participating in Curtis would state a claim for retaliation under the First Amendment. However, plaintiff later admitted that he was not a party to Curtis, so I dismissed his retaliation claim in an order dated August 21, 2002:
Petitioner has responded in a document titled “Plaintiff’s Clarification of His Retaliation Claim,” informing the court that he was not a plaintiff in Curtis. Nevertheless, petitioner contends that he should be allowed to proceed because, regardless whether he was a party in Curtis, respondents retaliated against him for exercising a constitutional right. Specifically, he alleges that he had a constitutional right to challenge his disciplinary infractions administratively, and that respondents retaliated against him for doing so by renaming his disciplinary report as a “disturbance review” and keeping him in administrative confinement.
I agree with petitioner that his constitutional right to redress of grievances and access to courts includes the right to pursue administrative remedies that must be exhausted before he can seek relief in court. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.2000). However, there are no allegations in petitioner’s complaint that would permit me to infer that respondents retaliated against petitioner for exercising that right. Although in his complaint petitioner does identify as a cause of action that “[t]he defendants conspired to retaliate against plaintiff for successfully challenging the disciplinary infractions,” the factual allegations in his complaint are inconsistent with this assertion.
Petitioner does not allege in his complaint that respondents re-labeled his disciplinary infractions as a “disturbance review” after he sought administrative review of his infractions. Rather, he alleges that respondents retaliated against him after his infractions were expunged, apparently as the result of the state court’s decision in Curtis. If petitioner was not a plaintiff in Curtis, then he cannot successfully argue

that respondents re-labeled his infractions in reaction to the exercise of his constitutional rights. At most, I could infer from petitioner’s proposed complaint that respondents re-labeled his infractions as a result of the success of the plaintiffs in Curtis. If respondents’ actions were the result of Curtis, as petitioner alleges they were, then respondents would have taken the same action regardless whether petitioner had challenged his disciplinary infractions. Therefore, even assuming that all the allegations in petitioner’s complaint are true, he has not stated a claim for retaliation. Although petitioner is not required to plead all the facts that if true would prove his claim, Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002), or allege a chronology of events, Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002), if the facts he does allege would defeat his claim if proven, then he cannot survive a motion to dismiss, see Massey v. Helman, 259 F.3d 641, 645 (7th Cir.2001).
*5 The essence of petitioner’s complaint is that he believes that respondents should have transferred him out of administrative confinement as a result of Curtis, but they have not. Perhaps petitioner is correct, but even if he is, this does not give rise to a claim under 42 U.S.C. § 1983. Whether Curtis should apply to petitioner and, if so, whether Curtis would prohibit respondents from re-labeling his disciplinary infractions (or whether how they are labeled affects petitioner’s administrative confinement) are matters of Wisconsin, not federal, law and thus cannot be the basis for a § 1983 claim. Accordingly, I will deny petitioner leave to proceed on his retaliation claim.
Plaintiff is attempting to do the same thing in this case that he did in 02–C–348–C, that is, obscure the allegations in his complaint so that it appears as if it was something that he did that motivated defendants to “re-label” his disciplinary infraction even though he has admitted that this happened as a result of the Curtis decision. Plaintiff never moved this court to reconsider its decision in 02–C–348–C and he never argued that the court had misconstrued his complaint. Accordingly, I conclude that this issue has already been decided against plaintiff. This means that he may not raise it again in another case. Loeb Industries v. Sumitomo Corp., 306 F.3d 469, 496 (7th Cir.2002) (setting forth elements of issue preclusion); Gleash v. Yuswak, 308 F.3d 758, 760–61 (7th Cir.2002) (court may raise affirmative defense on its own if it is clear from face of complaint that defense applies).
However, this ruling does not extend to plaintiff’s claim that defendants violated state law when they failed to expunge all references to the incident report that resulted in his transfer and loss of a job. Plaintiff can go forward with that claim in state court.
3

Freeman v. Berge, Not Reported in F.Supp.2d (2004)
B. Conduct Report # 1412234 and Administrative Confinement Hearings
It is unclear from plaintiff’s complaint what kind of claims he is raising with respect to conduct report # 1412234 and his administrative confinement hearings. If plaintiff is alleging that his Fourteenth Amendment procedural due process rights were violated because the hearing officer failed to explain on the “record of witness testimony form” why plaintiff’s evidence and testimony were not credible, his claim fails. Similarly, if plaintiff is alleging a procedural due process violation because he is unable to call witnesses at what he describes as “administrative confinement hearings,” his claim fails. As plaintiff is well aware from his earlier cases in this court, he has no entitlement to Fourteenth Amendment due process protections unless he has a protected liberty or property interest at stake. Averhart v. Tutsie, 618 F.2d 479, 480 (7th Cir.1980). Liberty interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (citations omitted). After Sandin, in the prison context, protected liberty interests are essentially limited to the loss of good time credits because the loss of such credit increases the length of an inmate’s incarceration despite his having earned an earlier release date. Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir.1997) (when sanction is confinement in disciplinary segregation for period not exceeding remaining term of prisoner’s incarceration, Sandin does not allow suit complaining about deprivation of liberty). In this case, plaintiff does not allege a connection between defendant Sharpe’s failure to explain why he ruled the way he did and any increase in the length of his incarceration. He does not allege that the decision to retain him in administrative confinement extends the term of his incarceration. Therefore, the allegations are insufficient to implicate a protected liberty interest under Sandin. Plaintiff will not be allowed to proceed on these claims.
*6 Plaintiff does not cite any state law requiring witness testimony forms to include an explanation why his evidence and testimony was not credible. However, Wis. Admin. Code § DOC 303.76(6)(f) requires the decisionmaker to “provide the accused inmate and the inmate’s advocate, if any, a written copy of the decision with reasons for the decision.” To the extent that plaintiff may be alleging that defendant Sharpe failed to comply with § DOC 303.76(6)(f), the claim is one of a state law violation that must be brought in state court. Because

plaintiff is not proceeding in this court on a related federal law claim, I decline to exercise supplemental jurisdiction over this claim. Instead, I will remand this portion of plaintiff’s complaint to state court.
Plaintiff does not cite any state law governing “administrative confinement hearings.” If there are state laws governing such hearings, and those laws entitle him to call witnesses, I decline to exercise supplement jurisdiction over this claim but instead remand it for review in state court.
C. Unequal Treatment
Plaintiff alleges that other inmates who successfully challenged the disciplinary infractions that led to their transfer to the Wisconsin Secure Program Facility were moved from the facility and taken out of administrative confinement. In addition, he alleges that because the conditions of confinement at the Wisconsin Secure Program Facility are more harsh and restrictive than other maximum security prisons, his treatment at the facility is inconsistent with the treatment maximum custody inmates receive at Dodge, Columbia, Green Bay and Waupun Correctional Institutions.
The equal protection clause of the Fourteenth Amendment guarantees that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiff does not allege membership in a suspect class of persons receiving unequal treatment. Therefore, his equal protection claim must be evaluated under the rational basis test. Under rational basis review, classifications “must be upheld against equal protection challenge if there is any reasonably conceivable set of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).
Plaintiff’s allegations fall far short of suggesting that he is similarly situated to other inmates whose incident reports have been expunged or that there is no rational basis for treating him differently from the other inmates who were transferred out of the Wisconsin Secure Program Facility after their incident reports were expunged. By their very nature, programming and placement decisions take into account the individual histories and rehabilitative needs of each inmate. Plaintiff’s history and rehabilitative needs are unique to him. It is not possible to infer from his allegations that his circumstances are similar to any other inmate’s. Therefore, it is not possible to infer that defendants had no rational reason for treating him differently.
4

Freeman v. Berge, Not Reported in F.Supp.2d (2004)
*7 With respect to plaintiff’s claim that because he is subject to such harsh and restrictive confinement, his treatment at the Wisconsin Secure Program Facility is not comparable to the treatment of inmates at other institutions, I have ruled previously that prison administrators may rationally implement different behavior modification programs for different offenders at different prisons and offer different privileges to prisoners at different levels in the Wisconsin Secure Program Facility, in order to achieve the legitimate goal of safely incarcerating and rehabilitating convicted criminals. Garrett v. Berge, 01–C–532–C (W.D.Wis. Sept. 16, 2001). Plaintiff will not be allowed to proceed on his equal protection claims because they are legally meritless.
ORDER
IT IS ORDERED that

1. Plaintiff Berrell Freeman’s motion to remand is GRANTED. Plaintiff has failed to state a claim upon which relief may be granted with respect to any of his federal law claims. These claims are DISMISSED WITH PREJUDICE. I decline to exercise supplemental jurisdiction over plaintiff’s state law claims that (1) defendant Sharpe failed to comply with Wis. Admin. Code § DOC 303.76(6)(f) in connection with plaintiff’s disciplinary proceeding on conduct report # 1412234; (2) defendants are denying plaintiff a right to call witnesses at his “administrative confinement hearings;” and (3) defendants violated state law when they failed to expunge all references to the incident report that resulted in plaintiff’s transfer and loss of a job. These claims are REMANDED to the Circuit Court for Dane County, Wisconsin.
	  

5

 
 State ex rel. Freeman v. Berge, 289 Wis.2d 219 (2005)
289 Wis.2d 219 Unpublished Disposition See Rules of Appellate Procedure, Rule 809.23(3), regarding citation of unpublished opinions. Unpublished opinions issued before July 1, 2009, are of no precedential value and may not be cited except in limited instances. Unpublished opinions issued on or after July 1, 2009 may be cited for persuasive value. NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A
REPORTER TABLE. Court of Appeals of Wisconsin.
STATE of Wisconsin ex rel. Berrell FREEMAN, Plaintiff-Appellant, v.
Gerald BERGE, Stephen Casperson, John Sharpe and Department of Corrections, Defendants-Respondents.
No. 2005AP86. | Dec. 22, 2005.
Appeal from an order of the circuit court for Dane County: Shelley J. Gaylord, Judge. Affirmed.
Before LUNDSTEN, P.J., DYKMAN and HIGGINBOTHAM, JJ.
Opinion
¶ 1 PER CURIAM.
*1 Berrell Freeman appeals an order dismissing a complaint that raised various claims against the Department of Corrections and three of its officers. The case was first removed to Federal Court; the district court dismissed Freeman’s federal claims and subsequently remanded to state court the three remaining State law claims: whether one of the defendants failed to comply with WIS. ADMIN. CODE § DOC 303.76(6)(f) during a disciplinary proceeding against Freeman; whether the Department denied him the right to call witnesses at a hearing to extend his administrative confinement; and whether the Department unlawfully continues to rely on a certain incident report to administratively confine him when prior court decisions have ordered the Department to expunge that report. We conclude the trial court properly ruled against Freeman on all three issues and affirm.
¶ 2 WISCONSIN ADMIN. CODE § DOC 307.76(6)(f) provides that the subject of a prison disciplinary proceeding must receive an explanation of the decision in writing. Freeman alleged that respondent John Sharpe violated this rule in a disciplinary proceeding concluded in May 2003. However, the right to seek review of a disciplinary decision in the circuit court depends on the inmate’s exhaustion of his or her administrative remedies. See WIS. STAT. § 801.02(7)(b) (2003-04).1 For procedural issues, such as the one Freeman raised here, the administrative remedies include the inmate complaint review system. WIS. ADMIN. CODE § DOC 310.08(3). Here, Freeman did not file an inmate complaint seeking review of the alleged procedural error.
¶ 3 Freeman’s due process claim, that he was denied witnesses at an administrative confinement hearing, was untimely and properly denied on that basis. WISCONSIN STAT. § 893.735(2) provides that an action seeking a remedy available by certiorari, which is the case for Freeman’s claim, is barred unless commenced within forty-five days after the cause of action accrues. Freeman did not commence this action until nine months after the administrative confinement hearing at issue.
¶ 4 As determined in earlier litigation, Freeman has no basis to contend that the Department is using an expunged report to administratively confine him. While incarcerated at Whiteville Correctional Facility in Tennessee, Freeman was charged with a major disciplinary infraction for his role in a violent prison riot that occurred in November 1999. He was found guilty in a disciplinary proceeding at the facility on December 9, 1999, and transferred to the Wisconsin Secure Program Facility (WSPF) (formerly Supermax Correctional Institution) in April 2000. Relying on the Whiteville disciplinary findings, the Department’s Administrative Confinement Review Committee (ACRC) ordered his placement in administrative confinement.
¶ 5 After seeking various administrative remedies, Freeman commenced this action by filing a petition for writ of habeas corpus in which he challenged the Whiteville disciplinary decision, the decision transferring him to WSPF and the decision to place him in administrative confinement. The trial court construed the petition as one seeking certiorari review of the three
1

State ex rel. Freeman v. Berge, 289 Wis.2d 219 (2005)
administrative decisions and dismissed it because Freeman did not exhaust his administrative remedies before filing it. Freeman appealed and on review we reversed in part and remanded to allow Freeman to proceed on his challenge to the ACRC decision of April 2000. State ex rel. Freeman v. Berge, 2002 WI App 213, ¶ 1, 257 Wis.2d 236, 651 N.W.2d 881.
*2 ¶ 6 Meanwhile, other inmates had successfully challenged administrative confinements also imposed because of their participation in the Whiteville riot, on the grounds that the subsequent Whiteville disciplinary proceedings were procedurally invalid. See State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶ 1, 256 Wis.2d 787, 650 N.W.2d 43. In such cases, this court held the DOC could impose administrative confinement based on the Whiteville riot participation but only to the extent the DOC proved the inmate’s participation without relying on findings of the Whiteville disciplinary proceedings. Id., ¶ 1.
¶ 7 Consequently, the DOC vacated Freeman’s administrative confinement decision of April 2000 and conducted an independent investigation of his conduct during the riot. After that investigation revealed Freeman’s significant participation in the riot, the ACRC again placed him in administrative confinement. In other words, Freeman’s administrative confinement no longer has any connection to the expunged document.
Order affirmed.
This opinion will not be published. See WIS. STAT. RULEE 809.23(1)(b)5.

Parallel Citations

709 N.W.2d 112 (Table), 2005 WL 3488414 (Wis.App.), 2006 WI App 20

Footnotes

1

All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

2

 
 Freeman v. Berge, 549 U.S. 824 (2006)
127 S.Ct. 176 Supreme Court of the United States
Berrell FREEMAN, petitioner, v.
Gerald A. BERGE, Warden, et al. No. 05-1641. | Oct. 2, 2006.
Case below, 441 F.3d 543.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit denied.
Parallel Citations 127 S.Ct. 176 (Mem), 166 L.Ed.2d 42, 75 USLW 3001, 75 USLW 3023, 75 USLW 3157, 75 USLW 3165
	  

1