Berrell Freeman v. Gerald A. Berge

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2820
B ERRELL F REEMAN ,
Plaintiff-Appellant,
v.
G ERALD A. B ERGE , 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.
____________
A RGUED N OVEMBER 7, 2005—D ECIDED M ARCH 23, 2006
____________
Before POSNER , E ASTERBROOK , and W OOD, Circuit Judges.
P OSNER , 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 dam-
ages, 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.

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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 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 viola-
tion 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

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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 punish-
ment. 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 di-
rected by any rule, cannot be thought unreasonable;
the sock posed a potential threat to the guards. The possibil-
ity 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

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4 No. 05-2820
end of that time prison employees cleaned it). That depriva-
tion 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 situ-
ation. When we asked his lawyer what alternative re-
sponse 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 privi-
leges, such as a television set in his cell. Given the length of
his sentence and what is plainly a propensity for obstreper-
ous 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 cater-
ing 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-

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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); Com-
stock 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

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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 disci-
pline, because of the effect of a suicide in agitating the
prisoners. Prison officials who let prisoners starve them-
selves 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

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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 pris-
on 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 jeopar-
dized. 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 ex-
perienced real suffering, extreme discomfort, or any last-

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8 No. 05-2820
ing detrimental health consequences, the judgment for
the defendants must be, and it is,
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-23-06

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