In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-4318

DENNIS E. JONES-EL, et al.,

Plaintiffs-Appellees,

v.

GERALD A. BERGE, MATTHEW J. FRANK,

and JON E. LITSCHER,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00 C 421—Barbara B. Crabb, Chief Judge.

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ARGUED JUNE 1, 2004—DECIDED JULY 2, 2004

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Before EASTERBROOK, KANNE, and ROVNER, Circuit

Judges.

KANNE, Circuit Judge. This appeal arises out of an action

filed in 2000 by two prisoners confined at the Supermax

Correctional Institution in Boscobel, Wisconsin (this facility

was recently renamed the Wisconsin Secure Program

Facility, but for the sake of continuity, we will refer to the

prison as “Supermax”). In their conditions of confinement

suit, the plaintiffs asserted that they were subjected to

extreme temperatures in violation of the Eighth Amendment, in addition to other claims. After a plaintiff class was
2 No. 03-4318

certified, the district court granted a preliminary injunction

requiring, in part, that certain inmates particularly susceptible to elevated temperatures be immediately removed

from Supermax. Jones’El v. Berge, 164 F. Supp. 2d 1096

(W.D. Wis. 2001) (“Jones’El I”). Prior to trial on January 24,

2002, the parties entered into a consent decree. Among

other concessions, the Wisconsin Department of Corrections

(“DOC”) agreed to investigate and implement a means of

cooling the cells during summer heat waves. The agreement

also stated that the district court would retain jurisdiction

to enforce its terms and that it was consistent with the

requirements of the Prison Litigation Reform Act (“PLRA”),

18 U.S.C. § 3626. On June 24, 2002, the district court

approved the agreement. 

Then, on October 10, 2003, the plaintiffs moved to enforce

various provisions of the consent decree, including the term

requiring the DOC to implement a means of cooling the

cells. During the November 24, 2003 hearing on this

motion, the defendants admitted that the only practical way

to cool the cells was to install air conditioning. Consequently, the district court ordered the defendants to take

immediate steps to air condition the cells at Supermax

(“November order” or “enforcement order”). The defendants

have appealed that award of relief by the district court, and,

as of March 11, 2004, the November order has been stayed

pending the disposition of this appeal. For the following

reasons, we affirm the district court’s enforcement order.

I. Analysis

First, we must address whether jurisdiction lies to consider this appeal. Under 28 U.S.C. § 1291, we have jurisdiction over appeals from all final decisions of the district

courts. The consent decree itself was a final decision for

purposes of § 1291, even though, as a complex equitable

decree, it lacks the trappings of a readily-identifiable-as-
No. 03-4318 3

final money judgment. As a result, the district court’s

enforcement order, the subject of this appeal, is properly

conceived of as a postjudgment order. We treat a postjudgment proceeding as if it were a freestanding lawsuit

and attempt to identify the final decision in that proceeding. See Alliance to End Repression v. City of Chicago, 356

F.3d 767, 773 (7th Cir. 2004) (citing Bogard v. Wright, 159

F.3d 1060, 1062-63 (7th Cir. 1998) (citing cases)); Gautreaux

v. Chicago Hous. Auth., 178 F.3d 951, 955-56 (7th Cir. 1999)

(citing Ass’n of Cmty. Orgs. for Reform Now v. Ill. State Bd.

of Elections, 75 F.3d 304, 306 (7th Cir. 1996)). Hence, we

find ourselves heading into rocky terrain—where a consent

decree serves as the “first” order of the postjudgment

controversy, the postjudgment proceedings may not bear

sufficient similarities to a freestanding lawsuit to enable

easy identification of a plausible counterpart to a final

judgment as required under § 1291. See Bogard, 159 F.3d

at 1062-63. Because the finality question in the context of

postjudgment proceedings is such a tough one, instead of

attempting to conquer such terrain, we assume the November order was non-final and take the plainer path—28

U.S.C. § 1292(a)(1).

Under § 1292(a)(1), we have jurisdiction over appeals

from interlocutory orders of the district courts granting

injunctions. An order—including a postjudgment order—is

properly characterized as an “injunction” when it substantially and obviously alters the parties’ pre-existing legal

relationship. Gautreaux, 178 F.3d at 958 (citing Bogard, 159

F.3d at 1064; Motorola, Inc. v. Computer Displays Int’l, Inc.,

739 F.2d 1149, 1155 (7th Cir. 1984)). Even though an

interlocutory order may not explicitly grant an injunction,

if its consequences may cause a party irreparable harm,

then it likely substantially altered the legal relationship of

the parties and immediate appealability is appropriate. See

Heartwood, Inc. v. U.S. Forest Serv., 316 F.3d 694, 698 (7th

Cir. 2003) (citing Carson v. Am. Brands, Inc., 450 U.S. 79,
4 No. 03-4318

1 In fact, the district court denied the defendants’ motion to stay

the enforcement order on December 23, 2003. The defendants

were able to discontinue the air conditioning project only because

this court on March 11, 2004 granted their motion to stay the

order pending disposition of the appeal. The record reveals that

approximately one-third of the project has been completed (although much to our vexation, the defendants were not able to

identify at oral argument what exact improvements or construction have thus far been completed), at a cost of about $250,000.

84 (1981)). Put differently, an unappealable order is one

that interprets or clarifies a prior order and does not create

new rights or obligations independently enforceable through

a contempt action. 

Applying this standard to the November order, we conclude that it is an appealable grant of a “fresh” injunction,

and not simply an interpretation of the consent decree. The

November order required the DOC to immediately take

steps to air condition the cells at Supermax and set a

deadline for completion of the air conditioning project: the

first heat of 2004.1

 Assuming arguendo that the order is in

error, without an immediate appeal, the defendants would

have to comply with the order and incur substantial costs,

and would therefore suffer serious irreparable harm. 

Moreover, it is impossible to conceive that, absent the

enforcement order, the plaintiffs could have successfully

pursued a motion for contempt of the decree based upon the

defendants’ failure to air condition the cells at Supermax.

The decree included no provision guaranteeing air conditioning, it only stated that the defendants would implement

a means of cooling the cells during summer heat waves. The

plaintiffs assert that because the defendants admitted at

the pre-order hearing that the only practical means of

cooling the cells is air conditioning, the consent decree ipso

facto required air conditioning and the enforcement order

should properly be construed as an interpretation of the
No. 03-4318 5

2 Following the defendants’ admission at the November 24, 2003

hearing, the plaintiffs certainly could have abandoned their motion to compel enforcement with respect to the air conditioning

and instead filed a contempt action against the state for violating

the decree based upon that admission. But this never came to

pass. The plaintiffs continued to press their enforcement motion

and obtained the desired—and, despite their protestations to the

contrary, appealable—enforcement order.

decree and not as an injunction. This circular logic is

unavailing. It is still the case that, absent the November

order, it would not be possible to hold the DOC in contempt

of the original consent decree for failing to install air

conditioning.2

The enforcement order substantially and obviously

changed the legal relationship of the parties by specifically

requiring the installation of air conditioning, evidenced by

the irreparable harm the defendants could suffer absent the

availability of an immediate appeal. Therefore, we have

jurisdiction under § 1292(a)(1).

Next, we briefly address the defendants’ assertions that

the district court’s enforcement order is invalid. All these

arguments allege that the November order fails to comply

with the requirements for prospective relief under the

PLRA. Specifically, 18 U.S.C. § 3626(a)(1) mandates that

prospective relief must be narrowly drawn, extend no further than necessary to correct the violation of the federal

right, and must be the least intrusive means necessary

to correct the violation. Problematically, the defendants

failed to make any of their highly fact-bound arguments as

to why the order would violate the PLRA in their briefing to

the district court or at the November 24, 2003 hearing on

the issue. This failure not only deprived the plaintiffs of a

meaningful opportunity to respond (and concomitantly

waived these arguments for the purposes of appeal, see, e.g.,

United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.
6 No. 03-4318

1991)), but also reveals that this appeal of the enforcement

order is not the proper mechanism for the particular

challenges the defendants wish to raise.

The enforcement of a valid consent decree is not the kind

of “prospective relief” considered by § 3626(a). See, e.g.,

Hallett v. Morgan, 296 F.3d 732, 743 (9th Cir. 2002) (citing

Essex Co. Jail Annex Inmates v. Treffinger, 18 F. Supp. 2d

445, 462 (D.N.J. 1998)). So long as the underlying consent

decree remains valid—and the defendants here have not

(yet) made a § 3626(b) motion to terminate or modify the

decree—the district court must be able to enforce it. Id. The

district court’s enforcement order on its face is valid, and

the defendants offer no proper argument (i.e., one that does

not rest upon the PLRA) to the contrary. Challenges to the

appropriateness of the November order requiring the

installation of air conditioning based upon the PLRA can

only be properly brought as a § 3626(b) motion to terminate

or modify the decree. By this route, both parties will be

offered an equal opportunity to argue the facts and substantive merits with respect to the consent decree’s provision

requiring the cooling of the cells at Supermax. 

Before concluding, we must mention a few items regarding the defendants’ arguments as to the “practicality” of

installing air conditioning. First, the defendants will be

hard-pressed to demonstrate that they should not be held

to their admission at the November 24, 2003 hearing that

air conditioning is the only practical way to cool the cells at

Supermax. See, e.g., Burgin v. Broglin, 900 F.2d 990, 993

n.3 (7th Cir. 1990). Second and relatedly, at oral argument,

the defendants also (and somewhat surprisingly) disclaimed

costs as a practical impediment to the installation of the air

conditioning. Last, we note that before this court, only one

argument as to why air conditioning would not be a practical means to cool the cells at Supermax was offered.

Defendants incredibly argued that the air conditioning of

cells at Supermax to a balmy temperature between 80 and
No. 03-4318 7

84 degrees during summer heat waves would entice inmates

at other prisons to attack prison guards and/or other

inmates in order to be transferred there. This is despite the

fact that Supermax inmates are held in windowless cells for

all but four to five hours a week and have almost no human

contact. We agree with the district court that this proposition is “dubious in the extreme.”

II. Conclusion

For the foregoing reasons, the November 25, 2003 enforcement order of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-2-04