In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 18-3535
MICHAEL JOHNSON,
Plaintiff-Appellant,
v.
SUSAN PRENTICE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 16-C-1244 — Colin S. Bruce, Judge.
____________________
On Petition for Rehearing and Rehearing En Banc
____________________
DECIDED AUGUST 25, 2022
____________________
Before SYKES, Chief Judge, and EASTERBROOK, ROVNER,
WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE, KIRSCH, and
JACKSON-AKIWUMI, Circuit Judges.
On consideration of the petition for panel rehearing or
rehearing en banc filed May 18, 2022, Chief Judge Sykes and
Circuit Judges Easterbrook, Brennan, Scudder, and Kirsch
2 No. 18-3535
voted to deny rehearing en banc. Circuit Judges Rovner,
Wood, Hamilton, St. Eve, and Jackson-Akiwumi voted to
grant rehearing en banc. On the tie vote, the petition for
rehearing en banc is DENIED. The petition for panel rehearing
is DENIED.
No. 18-3535 3
SCUDDER, Circuit Judge, concurring in the denial of the petition for rehearing en banc. Michael Johnson asks the full
court to revisit our 2001 decision in Pearson v. Ramos, 237 F.3d
881, and therefore to reconsider the standard for determining
the point at which denying a prisoner access to exercise offends the Eighth Amendment. In my view, this case is not the
best candidate for en banc review because the record, perhaps
owing to Johnson representing himself in the district court, is
underdeveloped on points of fact and law essential to proper
consideration of such a difficult question. Make no mistake,
though: the issue is important and cries out for the full court’s
consideration in a future case.
What makes the question presented so difficult is that it
does not seem amenable to a categorical answer at either
bookend. To my eye, Pearson is too broad: it suggests that the
proper Eighth Amendment focus is not on the cumulative effect of disciplinary infractions, which can result in a prisoner
losing access to exercise for months or years on end, but rather
on whether each individual instance of misconduct warranted denying that access for some lesser increment of time.
See id. at 886. Pearson, in short, seems to say that the Eighth
Amendment is not concerned with the sum total of the deprivation so long as each component is not problematic when
measured in isolation. It is hard to square that view with the
Supreme Court’s observation in Wilson v. Seiter that
“[s]ome conditions of confinement may establish an Eighth
Amendment violation ‘in combination’ when each would not
do so alone, but only when they have a mutually enforcing
effect that produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise—for example,
a low cell temperature at night combined with a failure to issue blankets.”
501 U.S. 294, 304 (1991) (emphasis in original).
4 No. 18-3535
Nor does the question presented seem amenable to an
equally categorical answer at the other end of the spectrum—
that the deprivation of access to exercise always violates the
Eighth Amendment once some point in time is surpassed. So
much would seem to depend on how two primary variables
intersect: the safety risk presented by the prisoner and the
harm he suffers from being unable to exercise, either on the
yard or in a larger cell, over the length of time at issue.
My point is that broad rules (akin to always and never answers) are most often the exception and not the norm on difficult questions of law. At the very least, categorical answers
in any direction seem at odds with the established preference
of resolving Eighth Amendment challenges to prison conditions on their individual facts with legal guideposts informing the proper inquiry. See Farmer v. Brennan, 511 U.S. 825
(1994).
Getting to the right legal standard requires a case where
the facts and law have benefitted from full development and
sound adversarial presentation in the district court. At a minimum, it seems a record would benefit from evidence on these
points:
• Why and for how long did the prisoner lose access
to exercise?
• Was the loss of access just to the prison yard or
also to indoor spaces, including oversized cells,
that would have allowed some forms of exercise?
• What risks—security or otherwise—did the institution face by affording the prisoner access to
No. 18-3535 5
exercise? Was the institution unable to manage
those risks? Did the answer change over time?
• What was the physical and mental impact of the
deprivation on the prisoner and how did it change
over time? These points seem especially amenable
to being informed by expert testimony on the importance, if not necessity, of exercise to some baseline of physical and mental well-being.
• What institutional policies exist around eliminating access to exercise, and did the deprivation in
question reflect implementation of those institutional policies? This question may inform the prospect of municipal liability, especially where it
may be difficult to identify any one decision
maker responsible for the cumulative effect of the
denial of access to exercise. See Monell v. Dep’t of
Social Servs. of New York, 436 U.S. 658 (1978).
It is also easy to foresee how a deprivation of access to exercise may intersect with other detrimental and equally serious conditions, including prolonged solitary confinement.
This case, then, is by no means the final word. To the contrary, we will await another appeal with a more developed
record that will afford the full court an opportunity to answer
the important and unresolved question we decline to resolve
today.
6 No. 18-3535
WOOD, Circuit Judge, with whom ROVNER, HAMILTON, ST.
EVE and JACKSON-AKIWUMI, Circuit Judges, join, dissenting
from the denial of rehearing en banc. In a civilized country,
even prisoners cannot be deprived of what the Supreme Court
calls the “minimal civilized measure of life’s necessities.” See
Wilson v. Seiter, 501 U.S. 294, 298 (2001) (quoting Rhodes v.
Chapman,
452 U.S. 337, 347 (1981)). However badly behaved a
prisoner may be, actions such as starvation, torture, deprivation of essential healthcare, and failure to provide life-sustaining warmth (or cooling), are out of bounds for the prison authorities. The case now before this court focuses on another
one of those necessities: exercise. Wilson confirms that exercise
is on the list of “minimal” needs that must be addressed. Id.
at 304.
The majority’s opinion, however, has taken the liberty of
deleting “exercise” from the prison’s responsibilities. It holds
instead that Michael Johnson’s right to some minimal level of
exercise can be withdrawn from him for a period of more than
two years, because (as all agree) Johnson is an obstreperous,
violent person. No decision from either the Supreme Court or
the lower courts justifies our carving out exercise from the Supreme Court’s list. Indeed, the majority’s decision puts the
Seventh Circuit at odds with many other courts and thus
makes this case a suitable candidate for Supreme Court attention. See S. CT. R. 10(a).
As far back as 1979, then-Judge Anthony Kennedy, writing for a panel of the Ninth Circuit, recognized that the total
deprivation of exercise “for a period of years” is an impermissible form of punishment under the Constitution. Spain v.
Procunier, 600 F.2d 189, 200 (9th Cir. 1979); cf. Davis v. Ayala,
576 U.S. 257, 286–90 (2015) (Kennedy, J., concurring). Today,
No. 18-3535 7
by my count, the Second, Fourth, Fifth, Eighth, and Ninth Circuits all recognize some minimal opportunity to exercise as
one of life’s necessities. 1 As best I can determine, only the
Eleventh Circuit might be on the other side, but it has not reconsidered this issue since the Supreme Court handed down
Wilson, and so may by now have a different position. See Bass
v. Perrin,
170 F.3d 1312, 1317 (11th Cir. 1999).
Moreover, a brief review of the facts confirms (contrary to
the concerns expressed by the concurring opinion) that there
are no quirks in the record of this case that stand in the way
of our reaching this issue. See Johnson v. Prentice, 29 F.4th 895
(7th Cir. 2022). Imprisoned since 2007, Johnson was often violent, disruptive, and destructive, engaging in such behaviors
as fighting, possessing contraband, damaging property, attacking guards with feces and urine, disobeying orders, and
1 See Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir. 1996) (recognizing
a longstanding circuit rule that “some opportunity for exercise must be
afforded to prisoners”); Mitchell v. Rice,
954 F.2d 187, 191 (4th Cir. 1992)
(recognizing both the general principle that "complete deprivation of exercise for an extended period of time violates Eighth Amendment prohibitions against cruel and unusual punishment” and a narrow security exception); Lyles v. Stirling,
844 F. App’x 651, 653–54 (4th Cir. 2021) (noting
the continued force of the general principle established in Mitchell); Hewitt
v. Henderson,
271 F. App’x 426, 428 (5th Cir. 2008) (summarizing circuit
precedent to hold “that deprivation of exercise may constitute an impairment of health, which is actionable under the Eighth Amendment” and
that such claims should be evaluated in light of “(1) the size of the inmate’s
cell; (2) the amount of time the inmate spends locked in his cell each day;
and (3) the overall duration of the inmate’s confinement”); Wishon v. Gammon,
978 F.2d 446, 449 (8th Cir. 1992) ("[L]ack of exercise may be a constitutional violation if one’s muscles are allowed to atrophy or if an inmate’s
health is threatened.”); Thomas v. Ponder, 611 F.3d 1144, 1152 (9th Cir. 2010)
(reaffirming Spain).
8 No. 18-3535
insolence. This behavior earned him a lengthy stint in disciplinary segregation, for which he was transferred to Pontiac
in March 2013. Once at Pontiac, he continued to misbehave,
and so he accumulated additional conduct violations that led
to consecutive periods in disciplinary segregation. This meant
“that Johnson spent almost three and a half years—from
March 2013 to August 2016—in solitary confinement. (He was
also sanctioned with restrictions on his yard access … .)” Id.
at 900.
Normally, inmates subject to segregation are given permission to exercise outside their cells for a few hours each
week, id., or, at a bare minimum, they have enough room
within their cells to engage in limited exercise. As the majority
does, I will refer to the out-of-cell activities as “yard” privileges. I will specify when in-cell activities are relevant. Because this case reaches us from a grant of summary judgment
for the defendants, we must accept for present purposes Johnson’s account of any disputed facts. That means we must accept the fact that Johnson’s cell was too small to permit in-cell
exercise—in other words, on this record, it was exercise out of
the cell (i.e., in the yard) or nothing.
The key issue before us, on that understanding, is whether
there is a limit on how long yard privileges may be revoked
entirely, when yard time constitutes the prisoner’s only meaningful opportunity to exercise. It is hard to avoid the conclusion that there is indeed such a limit, given the recognition in
Wilson that “exercise” is a fundamental necessity. The only serious issue is whether a jury could find that the deprivation
Pontiac imposed on Johnson exceeded that limit. It is common
ground between the majority and me that Johnson was “almost continuously” prohibited from yard access “from about
No. 18-3535 9
January 2014 through August 2016.” Id. While an inmate is
under yard restrictions, Pontiac permits him only one hour of
out-of-cell exercise per month, but even this paltry amount
was frequently denied to Johnson. Id. at 900–01. “He contended that between June 2015 and June 2016 he was not permitted any yard access at all.” Id. at 901 (emphasis added). The
record also indicates that inmates in disciplinary segregation
were permitted one ten-minute shower per week, but no one
contends that this qualifies as exercise time.
The panel majority has attempted to avoid the question
Johnson has presented in his briefs by recharacterizing it as a
challenge to prolonged solitary confinement. See id. at 902–04.
It asserts that there is a sharp break between Johnson’s theories in the district court, which concerned specific conditions
such as the lack of opportunity to exercise (and which he advanced pro se), and his argument on appeal, which the majority characterizes as one about solitary confinement.
But that is not a fair reading of Johnson’s argument, either
in the district court or before this court. Johnson is asserting
that he had exactly zero time outside his cell that he could use
for purposes of exercise, and he is also contending that in-cell
exercise was impossible. It is easy enough to see a factual link
between his exercise argument and an argument about confinement to the cell, but it is not unusual for one set of facts to
underlie two or more legal theories. His lengthy confinement
to his cell provides important context for his exercise claim.
In making that connection, it is worth recalling that the Supreme Court in Wilson acknowledged the importance of context:
10 No. 18-3535
Some conditions of confinement may establish an
Eighth Amendment violation “in combination” when
each would not do so alone, but only when they have
a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food,
warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets.
501 U.S. at 304 (emphasis deleted). As applied here, Johnson
has focused not on any generalized problems with solitary
confinement, serious and troublesome though they may be,
but instead on the total deprivation of meaningful exercise
opportunities, either in or out of his cell, for an extended time.
The length of the deprivation is relevant. No one is saying
that a 24-hour deprivation, or even a deprivation lasting two
or three weeks, automatically violates the Eighth Amendment, any more than one would say that the Constitution entitles Johnson to a state-of-the-art gym. But somewhere between three weeks and two years, the constitutional line is
crossed. At this stage of the litigation, we must credit Johnson’s assertion (based on personal knowledge) that he was totally deprived of exercise for more than two years. That happened because of the prison’s decision to impose back-to-back
terms of confinement to his cell. Maybe that was a convenient
punishment, but at some time well short of two years, it became an unconstitutional one—just as unconstitutional as if
the prison had decided to punish Johnson by refusing to feed
him or by keeping the temperature in his cell at 40 degrees
Fahrenheit. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
The legal issue that is sharply presented in this case is
whether a prison is entitled to deprive an inmate of any of the
basic necessities of human life as punishment for bad behavior.
No. 18-3535 11
The majority answers that question in the affirmative, but that
squarely conflicts with Wilson and the decisions of the other
circuits noted earlier. If this case involved any of the other
basic necessities—food, medical care, warmth—we would
not be having this discussion. No matter how obstreperous
Johnson was, no matter how violent or inappropriate his behavior, the Eighth Amendment does not permit the deprivation of the basic necessities of human existence. Exercise, the
Supreme Court has said, is one of those necessities. Only the
Court has the authority to delete it from that list.
The concurrence to the denial of Johnson’s petition for rehearing agrees that “determining the point at which denying
a prisoner access to exercise offends the Eighth Amendment
… is important and cries out” for review, but insists that the
record is too underdeveloped to permit en banc review. Ante
at 3 (Scudder, J. concurring in the denial of rehearing en banc).
Under the panel majority’s view, however, the factual details
that the concurrence claims are essential to review—such as
whether an inmate lost access to all or only some exercise
spaces, whether the prison could manage any security risk associated with allowing exercise, and the physical and mental
impact of the deprivation on the inmate—are irrelevant. That
is because the panel majority held that completely depriving
an inmate of exercise for two years does not violate the Eighth
Amendment as a matter of law so long as the inmate has committed a “serious” offense. Johnson, 29 F.4th at 904–05. No deficiency in the record prevents us from correcting this sweeping holding.
I conclude with a few words about Pearson v. Ramos, 237
F.3d 881 (7th Cir. 2001). If it indeed compels the result here,
then it too should be overruled by the en banc court of appeals.
12 No. 18-3535
That said, it may be possible to distinguish it on its facts, as I
now explain.
The plaintiff in Pearson was seeking damages for the harm
he suffered “as a result of being denied access to the prison
yard for exercise for an entire year.” Id. at 883. A majority of
the panel reversed a jury verdict in Pearson’s favor on the
ground that the record did not reveal circumstances that
amounted to cruel and unusual punishment. Judge Ripple,
concurring in the judgment, would have found qualified immunity for the prison officials, not because he had ruled out a
constitutional violation, but instead because any such right
was not yet, in his view, clearly established. The panel majority portrayed the “dispositive issue” as “whether the stacking
of … sanctions to the point of depriving a prisoner of an entire
year of yard access is cruel and unusual punishment.”
Id. at
884. It held that a single 90-day denial of yard privileges did
not amount to such punishment, but then (problematically)
said that four consecutive denials of 90 days apiece similarly
could not be understood as cruel and unusual punishment.
Id.
at 885. What else was the prison to do, the majority asked,
faced with a violent and incorrigible inmate?
Id.
But that takes us right back to the distinction between deprivation of yard privileges and deprivation of all opportunities to exercise. A closer look at Pearson shows that the plaintiff there, unlike Johnson, had some residual opportunities for
movement outside his cell. The Pearson majority reported that
there was “no credible evidence … of any physical or psychological harm to the plaintiff as a result of his protracted confinement in the segregation unit … .” Id. at 886. Second, as
footnote 3 to the concurring opinion notes, the yard was not
No. 18-3535 13
Pearson’s only outlet—he had some opportunities to leave his
cell for other purposes:
Over the course of the year, Mr. Pearson left his cell at
least four times a month and more often seven or eight
times a month, either to take showers (generally once
a week), to visit family members, to go to the law library, or to visit the health center. Whenever he left his
cell, Mr. Pearson’s legs were shackled and his arms restrained by chains. “Any walking he did outside his
cell would have been little more than a shuffle.” R.88
at 2. During the first 90–day period, Mr. Pearson left
his cell at least 23 times for a total of 31.7 hours. (Although prison records show that Mr. Pearson was given
3 hours of yard time on February 14, 1994, Mr. Pearson
denies that this occurred.) During the second 90 day
period, Mr. Pearson left his cell at least 20 times for a
total of about 33 hours away from it. The prison was
under a lockdown for 33 days during this period. During the third 90–day period, Mr. Pearson left his cell at
least 16 times for a total of 32.5 hours. The prison was
under a lockdown for 28 days during this period. Finally, during the fourth 90–day period, Mr. Pearson
left his cell 13 times for a total of 24 hours. The prison
was under a lockdown for 42 days during this period.
Id. at 888 n.3 (Ripple, J., concurring in the judgment). Yet at a
different point, the concurring opinion recognized that Pearson too may have been faced with a complete deprivation of
exercise: “The existence of out-of-cell exercise must also be
taken into consideration. … But it seems less than certain that
he could exercise in any meaningful way in his cell. Notably,
the district court stated that Mr. Pearson’s cell was ‘too small
14 No. 18-3535
for meaningful exercise.’” Pearson,
237 F.3d at 890 (Ripple, J.
concurring).
The more faithful reading of Pearson thus shows that it
makes the same mistake that the majority is making here, by
failing to give effect to the Supreme Court’s recognition that
exercise is a basic need. This is an error that the en banc court
can and should correct.
The Johnson majority also overreads Pearson in its discussion of the reasons that might justify a total deprivation of
yard privileges and the opportunity to exercise. Speaking of
the norm of proportionality found in the Eighth Amendment
(pursuant to which some forms of punishment that are permitted for serious crimes may violate the clause if imposed
for trivial ones), the Pearson majority stated that it “could imagine the norm’s being violated by imposing a 90-day denial
of yard privileges for some utterly trivial infraction of the
prison’s disciplinary rules … .” Id. at 885. The imposition of a
severe sanction for an “utterly trivial” violation would certainly be sufficient to show an Eighth Amendment violation,
but the Pearson panel never said that this was necessary. Deprivation of an essential human need is not acceptable even for
major transgressions. Again, we are confusing two things:
what measures is the prison entitled to use in a punitive way,
and when do its actions reach the point at which there is a
deprivation of the minimal civilized necessities of human life?
Prisons are entitled to use proportionate sanctions within a
wide range, but the Eighth Amendment still insists that the
basics of human life be furnished.
This may be a low bar, but in my opinion Johnson showed
enough to defeat the motion for summary judgment. In finding to the contrary, the majority has failed to observe the
No. 18-3535 15
distinction between the minimal necessities of life and other
sanctions. Depriving an inmate of the former is incompatible
with the Eighth Amendment. We are making a grave mistake
by failing to clarify, and then to follow, the difference between
those two standards. Regrettably, this opinion sends the message that an inmate who behaves as badly as Johnson did is
now fair game for torture, or starvation, or medical neglect,
or wholesale deprivation of exercise. The Eighth Amendment
assures that minimal human standards cannot be compromised. I respectfully dissent from the en banc court’s decision
not to correct this error.
