Dennis E. Jones -E L v. GERALD A. BERGE , MATTHEW J. FRANK , and JON E. LITSCHER

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4318
D ENNIS E. J ONES -E L , et al.,
Plaintiffs-Appellees,
v.
G ERALD A. B ERGE , M ATTHEW J. F RANK ,
and J ON E. L ITSCHER ,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C 421—Barbara B. Crabb, Chief Judge.
____________
A RGUED J UNE 1, 2004—D ECIDED J ULY 2, 2004
____________
Before E ASTERBROOK , K ANNE , and R OVNER , Circuit
Judges.
K ANNE , 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 Amend-
ment, in addition to other claims. After a plaintiff class was

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2 No. 03-4318
certified, the district court granted a preliminary injunction
requiring, in part, that certain inmates particularly suscep-
tible 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. Conse-
quently, 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 con-
sider this appeal. Under 28 U.S.C. § 1291, we have jurisdic-
tion 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-

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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 post-
judgment proceeding as if it were a freestanding lawsuit
and attempt to identify the final decision in that proceed-
ing. 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 Novem-
ber 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 substan-
tially 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,

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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 (al-
though much to our vexation, the defendants were not able to
identify at oral argument what exact improvements or construc-
tion 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 con-
clude 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 condi-
tioning, 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

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No. 03-4318 5
2 Following the defendants’ admission at the November 24, 2003
hearing, the plaintiffs certainly could have abandoned their mo-
tion 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 fur-
ther 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.

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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 substan-
tive 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 regard-
ing 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 practi-
cal 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

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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 proposi-
tion is “dubious in the extreme.”
II. Conclusion
For the foregoing reasons, the November 25, 2003 en-
forcement order of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-2-04

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