Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Seventh Circuit: Wisconsin Supermax Conditions Unconstitutional

by John E. Dannenberg

PLN has oft reported on the psychologically debilitating conditions at the Wisconsin Department of Corrections’ supermax prison at Boscobel. [See, e.g., PLN, April 2002, p.1, Barbaric Conditions at Wisconsin Supermax Result in PI to Transfer Mentally Ill Prisoners]. The Seventh Circuit U.S. Court of Appeals has now made specific findings of unconstitutionality.

As Judge Evans ominously began the appellate ruling, “Stripped naked in a small prison cell with nothing except a toilet; forced to sleep on a concrete floor or slab; denied any human contact; fed nothing but ‘nutri-loaf’; and given just a modicum of toilet paper – four squares – only a few times. Although this might sound like a stay at a Soviet gulag in the 1930s, it is, according to the claims in this case, Wisconsin in 2002. Whether these conditions are, as a matter of law, only ‘uncomfortable, but not unconstitutional’ as the State contends, is the issue we consider in this case.”

This case well illustrates that the paramount goal of super max prisons is neither security nor order but to break the spirit, will and mind of the prisoners the state places there on its whim.

WDOC prisoner Nathan Gillis was placed in supermax as punishment for his “sin” of having slept the wrong way on his prison bunk, with his head close to the door. WDOC rules require that prisoners sleep with their heads next to the toilet. Supervisor Bradley Hompe classified Gillis’ disciplinary write-up as “serious,” which automatically put Gillis into the Boscobel supermax Behavioral Modification Program (BMP). There, he was initially placed in Stage I, wherein he was left naked, without bedding, had no property, no visits or phone calls, no law library access, no showers, only a few squares of toilet paper, slept on a concrete slab, was constantly cold, and was fed only “nutri-loaf” (a disgusting block of ground-up food scraps). He would stay in Stage I for three days; if he programmed successfully, and thereupon advanced to Stage II, he would be provided with a smock, regular meals, showers and a few privileges for seven days.

After Gillis was kept in Stage I for five days he began to have hallucinations and suicidal ideations, and injured himself. Eventually Gillis sued under 42 U.S.C. § 1983, alleging cruel and unusual punishment in violation of the Eighth Amendment and improper placement in BMP in violation of his Fourteenth Amendment liberty interest rights. WDOC’s position was that BMP was not punitive per se, but rather served the legitimate penological interest of bringing prisoners into conformance with prison rules. The appeals court rephrased the parties’ dispute thusly: “How do prison officials make conditions in a supermax prison worse than usual without violating the Eighth Amendment?”

The court noted the recent U.S. Supreme Court decision in Wilkinson v. Austin, 545 U.S. 209 (2005), wherein there can be a liberty interest deprivation, not amounting to an Eighth Amendment violation, that nonetheless triggers due process protection. Importantly, being in the narrow “space” between these two Amendments would move determination of an actual constitutional violation to the domain of a trier of fact.

The appeals court reviewed precedent that found Eighth Amendment violations for inadequate heat, clothing, sanitation, ventilation, bedding and hygienic materials. Noting Gillis’ allegations of denial of all manner of such necessities in Stage I, the appellate court concluded that the district court’s grant of summary judgment in favor of WDOC denied Gillis any opportunity to prove his allegations to a trier of fact. Further, Gillis still bore the burden of proving that the defendants acted with disregard to substantial risk of serious harm, a claim he alleged when psychiatric personnel called to observe his self-mutilation did nothing to assist him.

Gillis’ due process claim survived as well; viewing the facts alleged, the court found he may well be able to prove to a jury that the BMP program imposed an atypical and significant hardship when measured against the ordinary incidents of prison life. The Seventh Circuit went on to declare that the defendants had not demonstrated a defense of qualified immunity, which would require them to show that as of 2002, “it was not well established that denial of shelter, heat and hygiene items implicated a prisoner’s constitutional rights.”

Accordingly, the appellate court did not excuse WDOC from the due process challenge. It noted that BMP placement occurs without even a hearing. WDOC waffled to the court by stating that “although the policy [BMP] may still be in effect, the BMP program is no longer used.” The Seventh Circuit wasn’t impressed, and vacated the district court’s grant of summary judgment and remanded the case for further proceedings. See: Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Gillis v. Litscher