In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2820

BERRELL FREEMAN,

Plaintiff-Appellant,

v.

GERALD A. BERGE, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03-C-21-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED NOVEMBER 7, 2005—DECIDED MARCH 23, 2006

____________

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.
2 No. 05-2820

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 twoand-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

serious harm on the prisoner it is also cruel. Reed v. McBride,

178 F.3d 849, 853-54 (7th Cir. 1999); Thompson v. Gibson, 289

F.3d 1218, 1222 (10th Cir. 2002); see Farmer v. Brennan, 511

U.S. 825, 832 (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—that you not throw back the food in
No. 05-2820 3

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
4 No. 05-2820

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—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 privileges,

without the 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 effec-
No. 05-2820 5

tive—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, 480 A.2d 93,

96 (N.H. 1984); People ex rel. Illinois Dept. of Corrections v.

Millard, 782 N.E.2d 966, 972 (Ill. App. 2003), but at some

point it may have to force-feed 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 (1990);

see Washington v. Glucksberg, 521 U.S. 702, 722 n. 17 (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
6 No. 05-2820

Court, 225 Cal. Rptr. 297, 300, 305 (App. 1986); see also

Washington v. Glucksberg, supra, 521 U.S. at 723, 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,

292 S.E.2d 54, 58 (W. Va. 1982); McNabb v. Department of

Corrections, 112 P.3d 592, 594-95 (Wash. App. 2005); People

ex rel. Dept. of Corrections v. Fort, 815 N.E.2d 1246, 1250-51

(Ill. App. 2004); contra, Zant v. Prevatte, 286 S.E.2d 715, 716-

17 (Ga. 1982).

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

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
No. 05-2820 7

Laurie v. Senecal, supra, 666 A.2d at 809; Commonwealth of

Pennsylvania, Dept. of Public Welfare v. Kallinger, 580 A.2d

887, 893 (Commonwealth Ct. 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 last-
8 No. 05-2820

ing detrimental health consequences, the judgment for

the defendants must be, and it is,

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-23-06