Edward Joseph X. Chapman v. George W. Pickett, Warden, U.S. Penitentiary, Marion, Defendants , 801 F.2d 912 ( 1986 )

CUDAHY, Circuit Judge.

After refusing on religious grounds to clean pork off food trays, plaintiff, a prisoner at the federal penitentiary in Marion, Illinois, was held in segregated confinement for nine months. He filed suit contending that the punishment was excessive. • After numerous trials and appeals, this court determined that defendants — officials at the prison — had violated plaintiff’s eighth amendment rights. On remand, the district court for the Central District of Illinois found defendants individually liable to plaintiff for $7,000. Defendants appeal the size of the award and the finding of individual liability. Plaintiff cross-appeals the award — arguing that it is too small — as well as the district court’s failure to grant punitive damages. We affirm.

Edward Joseph X. Chapman was convicted in 1969 of armed robbery and sentenced to 20 years in prison. He was originally detained at the federal penitentiary in Lew-isburg, Pennsylvania, then at Leavenworth, Kansas, before being transferred to the Marion Penitentiary on October 4, 1972. On October 9,1972, Chapman was assigned to kitchen detail. This included removing trays from food carts and cleaning off the carts. Because the food trays had pork on them, plaintiff, a devout Black Muslim whose faith forbids any handling of pork, refused to perform the task. James E. Brown, the supervising officer, warned Chapman that if he did not complete his assignment he would receive a disciplinary citation. Chapman still refused and told Brown that the last person who had written a disciplinary report on him had been “blown out of an oven” at Leavenworth two months earlier.¹

Brown filed a report with the prison’s Adjustment Committee under Prison Code section 303, charging Chapman with “failing to perform work as instructed by supervisor.” This report noted Chapman’s religious grounds for refusing to work. The report also mentioned Chapman’s remark about the Leavenworth incident, although Chapman was not charged with threatening an officer. That same day, an investigation by a member of the Adjustment Committee concluded that Chapman generally had a good attitude and noted that Chapman had found another prisoner to remove the pork and had afterwards completed the task. Chapman also performed his kitchen tasks the following two days without incident.

On October 11, 1972, the Adjustment Committee met on Brown’s report and concluded that Chapman should be placed in segregated confinement for an indeterminate period. Thereafter, Chapman’s status in segregated confinement was reviewed regularly. At one point, he wrote Warden George W. Pickett and requested immediate release and an explanation of why he was in segregation. This inquiry was not answered. On March 15, 1973, Warden Pickett received a copy of a letter dated March 9, 1973 from the Director of the Federal Bureau of Prisons, Norman A. Carlson, in which the director told Congressman Charles Rangel that prisoners should not be assigned to details involving the handling of pork if their religious beliefs forbade it. Despite this letter, Chapman remained segregated. He was returned to the general population on July 25, 1973, after spending 289 days in segregation.

While in segregation, Chapman had no social contact with other inmates. Many of his religious materials were confiscated and he had no opportunity to attend religious services. While prisoners in the general population were allowed out of their cells up to 12 hours a day, Chapman was only allowed out for exercise a few times each week and then only for 15 to 30 minute intervals. He was unable to bathe as frequently as those in the general population, was unable to request food that complied with his religious dietary restrictions, and received no vocational training.

He initially filed suit in April 1973. After much litigation,² this court found Chapman’s eighth amendment rights to have been violated by his extended confinement in segregation. Chapman v. Pickett, 586 F.2d 22 (7th Cir.1978). The case was then remanded to the district court for determination of who was responsible for the eighth amendment violation, when the violation began and what damages Chapman should receive.³

The district court determined that segregating Chapman for more than one week for failure to work was impermissible. Based on prior awards for wrongful segregation, the district court determined that Chapman should receive $7,000. The court determined that the three members of the Adjustment Committee, Jack Culley, E.M. Cage and Earl Buzzard were individually liable because they made the determination that Chapman should be segregated for an indefinite period. The court found Deputy Warden Fred Frey liable for approving this indeterminate sentence. The court also found Warden Pickett liable, based on the specific facts to which he had stipulated. Pickett admitted having the authority to override the Adjustment Committee’s determination. He admitted knowing of plaintiff’s confinement after October 11, 1972. He also knew of Norman Carlson’s letter stating that individuals should not be forced to handle meat in violation of their religious beliefs.

The district court did not award plaintiff punitive damages, finding that the officers had not acted with malice and that they legitimately believed that Chapman had threatened Officer Brown. Defendants now appeal the award of more than nominal damages to Chapman, contending that evidence of Chapman’s threat should be considered in assessing the reasonableness of his confinement. Defendants also contend that they should not be held individually liable. Chapman cross-appeals contending that the award of actual damages was too small in light of the length of his confinement and claiming that his treatment warranted punitive damages.

I.

Defendants first argue that Chapman is not entitled to more than nominal damages because, even if he was wrongfully confined for refusing to work on religious grounds, his comment that the last man who had written a disciplinary report on him had been blown out of an oven provided a reasonable basis for his long-term segregation. Defendants note that this comment was in Officer Brown’s report and was admitted by Chapman before the Adjustment Committee. As Chapman was an armed robber confined in a maximum security prison, defendants contend, it was reasonable to take his comment seriously and keep him under stricter supervision for 289 days. Thus, under Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) — which holds that damages are only recoverable when a deprivation of a right would not have occurred absent á constitutional violation — they conclude that Chapman is entitled to no more than nominal damages.

In raising this argument, defendants attempt to circumvent the settled law of this case. In 1978, this circuit stated:

Defendants assert that Chapman’s remarks concerning the supervisor at Leavenworth properly may have been considered in determining the length of Chapman’s confinement, even though defendants admit the Leavenworth investigation of the oven incident did not raise Chapman as a suspect. If the prison authorities had wished to charge Chapman with threatening another with bodily harm, they could have done so; it was, in fact, a separately listed “Prohibited Act” under Prison Code § 004. No such charge was ever made, nor was any hearing regarding it ever held. Defendant Pickett did not even reply to Chapman’s request for a formal explanation of his confinement. The mere fact that the remark was listed in the violation report and the investigator’s report is not sufficient. Not having been communicated to Chapman as a ground for the decision, it may not properly be relied on as justifying the punishment of indeterminate segregation.

Chapman v. Pickett, 586 F.2d 22, 28 n. 4 (7th Cir.1978). Never in the nine months of his segregation did any of the defendants profess that the remark was the reason for Chapman’s being penalized. Moreover, the officials knew that Chapman was not suspected of causing any harm to the employee at Leavenworth. We can only conclude that Chapman was punished solely for the offense he was charged with — failing to perform work as instructed by his supervisor. As the Adjustment Committee explained in its Committee Action Report of October 11, 1972:

The inmate stated that he has a Muslim order and that he always follows them to the letter. It forbids one from being around pork much less touch or eat. It is Allah’s way. Now that he is in our house he will do as he is told.

Appendix for Plaintiff-Appellee, Cross-Appellant at A-28. As a result of this determination, Chapman was kept in virtual isolation for nine months with severe restrictions on his mobility and daily routine. We cannot say that Chapman did not suffer actual damage.

II.

Granting that Chapman has suffered actual damage, it is appropriate to consider his argument that he should have received more than $7,000 in compensation for his injuries. He notes that in certain instances courts have overturned damage awards that were substantially out of line with awards in similar cases. See Levka v. City of Chicago, 748 F.2d 421 (7th Cir.1984) ($50,000 award for victim of unwarranted strip search reduced as excessive); Phillips v. Hunter Trail Community Association, 685 F.2d 184 (7th Cir.1982) ($25,-000 award for victim of Fair Housing Act violation reduced as excessive). Plaintiff points out that he received approximately $25 per day for his injuries while other victims of wrongful segregation have sometimes received more. See Mary & Crystal v. Ramsden, 635 F.2d 590 (7th Cir.1980) ($80 per day damages to juveniles who were wrongfully confined); United States ex rel. Larkins v. Oswald, 510 F.2d 583, 584 (2d Cir.1975) ($80 per day damages to segregated prisoner who was subjected to strip search and probing of his anal cavity); Maxwell v. Mason, 668 F.2d 361 (8th Cir.1981) ($100 per day for wrongful detention in solitary confinement).

The district judge sitting as factfinder has broad discretion in assessing damages. See Saxner v. Benson, 727 F.2d 669, 672-73 (7th Cir.1984) (“In view of the general restrictions on appellate review of a jury’s award of monetary damages we will not substitute our judgment in these circumstances for that of the judge and jury who heard the testimony.”), aff'd sub nom. Cleavinger v. Saxner, — U.S. -, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985); Phillips v. Hunter Trail Community Association, 685 F.2d at 191. His findings will not be overturned unless found to be clearly erroneous. Plaintiff contends that the decision here was clearly erroneous because some prisoners received damages more than four times per day greater than what he received.

An individual can always point to cases in which others received more and say that he received too little. To accept that argument is to say that a court must match the most generous offer made elsewhere, even though the circumstances of the case before it may be different and even though it may be the higher awards that less accurately reflect actual damages. In cases of wrongful segregation, at least one other court has awarded sums to victims of wrongful segregation similar to what Chapman received. See Riley v. Johnson, 528 F.Supp. 333, 343 (E.D.Mich.1981) ($25 per day). While some courts have awarded larger amounts, this may have been due to factors not present in Chapman’s case. For example, the plaintiffs in Mary & Crystal v. Ramsden were juveniles. The plaintiff in United States ex rel. Larkins v. Oswald was marched naked to his cell and subjected to a strip search and the probing of his anal cavity. The district judge was aware of these cases when he calculated his award. We cannot say he abused his discretion.

III.

Chapman also seeks punitive damages. A court may award punitive damages “when the defendant’s conduct is shown to be motivated by evil motive and intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Here, the district court found that even though defendants’ good faith belief that plaintiff had threatened an officer was not a basis for segregating Chapman, it did provide grounds for denying punitive damages. The award of punitive damages is also within the sound discretion of the district judge and his finding will not be disturbed.

IV.

The final issue raised on appeal is whether defendants may be held personally liable for plaintiffs damage.⁴ A plaintiff may establish personal responsibility “if the official acts or fails to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge or consent.” Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982); Wellman v. Faulkner, 715 F.2d 269, 275 (7th Cir.1983). This test was clearly satisfied as to the three members of the Adjustment Committee and Associate Warden Frey. The members of the Adjustment Committee made the initial determination that plaintiff should be confined to segregation. They met repeatedly during his time in segregation to review his case. While in a position to return plaintiff to the general prison population, they kept him in segregation for nine months. Associate Warden Frey participated in many of the meetings concerning Chapman’s confinement. In his position as supervisor, he too had the power to correct plaintiffs wrongful confinement. Under similar circumstances in Crowder we found the personal responsibility requirement had been met:

The evidence presented by Crowder indicated that both Moore and Devero sat as members of the disciplinary committee and, thus, participated directly in the “disciplinary hearings” by which Crow-der was repeatedly sentenced to confinement in the D.O. seclusion unit. In addition, Crowder testified that Moore and Devero were directly responsible for denying his requests for legal assistance and legal materials_ Moreover, because Moore and Devero were personally accountable for reviewing the status of inmates held in D.O. seclusion, they could properly be held liable for an eighth amendment violation if, at any time, Crowder’s continued confinement in D.O. seclusion became unlawfully disproportionate to the seriousness of his prison infractions.

687 F.2d at 1006.

Warden Pickett’s personal liability presents a more difficult question. Courts have exacting standards for establishing supervisory officials’ personal liability and hesitate to saddle supervisors with responsibility for decisions they did not make. The dissent points to cases that have not met these exacting standards and apparently concludes that “supervisory officials are not liable for failing to intervene to ameliorate things.” However, the law does not accord supervisors such sweeping freedom from liability. Rather, established law holds that under certain circumstances supervisors may be personally liable for failing to act when they have knowledge of a constitutional deprivation. See Crowder v. Lash, 687 F.2d at 1006; Cf. McKinnon v. City of Berwyn, 750 F.2d 1383, 1391 (7th Cir.1984) (failing to supervise subordinates may be actionable). The knowledge that is required is not only that a constitutional deprivation exists but also that the supervisor’s personal action is necessary to set it right.

The requisite knowledge is present in this case. Warden Pickett stipulated to knowing of Chapman’s confinement and doing nothing about it, even after he received a letter from the Director of Prisons — Pickett’s own supervisor. He stipulated before the district court

that among his duties was to see that discipline was maintained at the prison; that as chief officer of the prison Mr. Picket[t] had the authority to override the decisions of officers at the prison; that Mr. Picket[t] was aware of Plaintiff’s placement in segregation on October 11, 1972 and that he was continued and confined there until July 25, 1973; that on March 15, 1973 Mr. Picket[t] received a copy of a letter from Norman A. Carlson, Director, Federal Bureau of Prisons to Representative Charles Ran-gel. The letter indicated, ... “We have your letter of January 11, 1973 concerning Mr. Edward Chapman. In your letter we take exception to your statement of January 17, 1973, that men of the Black Muslim Faith at our facility were assigned the task of handling pork. We reviewed the situation and have communicated to the heads of the department of instructions not to assign individuals to details where they must work with pork as it is against their religious beliefs.”

Transcripts of Proceeding Before District Court, Nov. 3, 1976 at 95.

Pickett was the official at Marion to receive Director Carlson’s communication, which should have put him on notice that Chapman was wrongfully segregated. While that placed him in the best position to know that a constitutional deprivation had occurred and while he had the authority to remedy the situation, he did nothing. Chapman remained in segregated confinement for more than four more months. Under these circumstances, the district court was entitled to find Warden Pickett personally liable and we cannot say this disposition was clearly erroneous.⁵

For the foregoing reasons the judgment of the court below is Affirmed.

1 . In fact, an employee was involved in an oven accident at Leavenworth, but Marion officials were aware that Chapman was not suspected of involvement in the incident.

2 . Chapman originally sought declaratory and injunctive relief and damages, alleging violations of his rights under the first amendment’s free exercise clause, the fifth amendment's due process clause and the eighth amendment’s prohibition against cruel and unusual punishment. After hearing from only two witnesses, the district court entered judgment for defendants on grounds that Chapman failed to prove any of the allegations in his complaint and that his claim for a mandatory injunction was moot because he had already been released from segregation. On appeal, this circuit affirmed the denial of a mandatory injunction ordering release but reversed the dismissal of claims for damages and for certain declaratory and prohibitory relief. Chapman v. Kleindienst, 507 F.2d 1246 (7th Cir.1974). The court held that Chapman had made a prima facie case for a first amendment violation, that he had received procedural due process and that the district court had erred in terminating testimony. The court made no determination on Chapman’s eighth amendment claim due to the inadequacy of the record. It remanded the case for a new trial.

On retrial, the district court ruled that qualified immunity shielded defendants from Chapman’s first amendment claim. It found that pliantiffs eighth amendment rights were violated but refused to award money damages because no actual damages were shown. On appeal this court affirmed the finding of an eighth amendment violation and the determination that the first amendment claim was barred by qualified immunity. The court reversed the finding that no actual damages had been shown.

3 . On remand the district court determined that no eighth amendment violation existed in light of Rummel v. Estelle, 442 U.S. 939, 99 S.Ct. 2879, 61 L.Ed.2d 309 (1979). Chapman v. Pickett, 491 F.Supp. 967 (C.D.Ill.1980). This circuit reversed, ruling that Rummel did not apply to this case. Chapman v. Pickett, 645 F.2d 73 (7th Cir.1980) (unpublished order). The court found that the district judge had departed from the law of the case and again remanded for a determination of when plaintiffs eighth amendment violation began and a calculation of what damages were appropriate. Chapman v. Pickett, 676 F.2d 697 (7th Cir.1982) (unpublished order).

4 . Defendants claim they should be immune from liability. They initially argued that they were absolutely immune from liability but this argument was foreclosed by the Supreme Court's decision in Cleavinger v. Saxner, — U.S. -, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985), that members of prison disciplinary committees receive only qualified and not absolute immunity. The defendants now claim they should receive qualified immunity from liability for violations of plaintiffs eighth amendment rights. They did not advance a qualified immunity argument before the district court in this case. In 1978, this circuit rejected defendants’ qualified immunity argument and concluded:

There can be no serious contention with the fact that the right to be free from disproportionate punishment has long been ‘clearly established.’ At least as early as 1910, the Supreme Court declared it to be ‘a precept of justice’ that punishment for crime must be proportioned to the offenses, lest it be found to be cruel and unusual. Weems v. United States, 217 U.S. 349, 367 [30 S.Ct. 544, 549, 54 L.Ed. 793].

American Intern. Ins. Co. v. Vessel SS Fortaleza, 585 F.2d 22, 28 (7th Cir.1978). Since that time the Supreme Court has decided Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). That case articulated an objective standard for determining qualified immunity. Under that test “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. We do not believe that Harlow changes the 1978 result. In 1972 it was established that excessive punishment in segregated confinement for the exercise of a religious right could subject prison officials to liability. See Bryant v. Harris, 465 F.2d 365, 367 (7th Cir.1972).

5 . The dissent is in all other particulars an attack on Chapman v. Pickett, 586 F.2d 22 (7th Cir.1978). None of the points raised by the dissent (apart from the immunity arguments) has been argued by the government here for the very good reason that, except under rare circumstances, one panel of this court may not overrule a result reached by another panel. See Devines v. Maier, 728 F.2d 876, 880 (7th Cir.), cert. denied, 469 U.S. 836, 105 S.Ct. 130, 83 L.Ed.2d 71 (1984); Appleton Electric Co. v. Graves Truck Line, Inc., 635 F.2d 603, 607 (7th Cir.1980) ("we have long held that ‘matters decided on appeal become the law of the case to be followed ... on second appeal, in the appellate court, unless there is plain error of law in the original decision.’’’) (quoting Kaku Nagano v. Brownell, 212 F.2d 262, 263 (7th Cir.1954)). The law of the case doctrine has an extremely persuasive rationale in this case as in others, and one can hardly imagine a matter more fraught with Pandora’s Box potential than reopening the judgments reached by prior panels in the same case. The "change of law" rationale offered by the dissent for its extraordinary exploration of closed matters seems to us, under the circumstances of this case, a license to second-guess, or apply hindsight, to any number of otherwise settled decisions of this court.