In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4110

Alex Pearson,

Plaintiff-Appellee,

v.

Anthony Ramos,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 6591--Paul E. Plunkett, Judge.


Argued June 7, 2000--Decided January 22, 2001



 Before Posner, Coffey, and Ripple, Circuit Judges.

 Posner, Circuit Judge. The plaintiff, a state
prisoner, brought suit under 42 U.S.C. sec. 1983
against the superintendent of the disciplinary-
segregation unit of the prison, seeking damages
for harm that the plaintiff claimed to have
suffered as a result of being denied access to
the prison yard for exercise for an entire year.
A jury awarded the plaintiff $15,000 in
compensatory damages and $50,000 in punitive
damages; the judge cut the punitive damages to
$15,000 and entered judgment for the plaintiff,
precipitating this appeal.

 Prisoners in the segregation unit are confined
to their cells, which are small (9 feet by 12
feet) and, because the cell contains a toilet and
sink as well as a bed, cramped. They are allowed
out only for trips to the law library or the
health-care unit or to receive visitors or take a
shower once a week, except that they are also
allowed to use the yard for an hour a week, or
five hours a week if they have been in
segregation for at least 90 consecutive days.
However, one of the authorized sanctions for
serious infractions of prison rules is denial of
yard privileges for 90 days. During a six-month
period the plaintiff committed four such
infractions and was punished for each one with a
90-day denial of yard privileges, the "sentences"
to run consecutively ("stacked," as the parties
call it). As a result, he was denied access to
the yard for a year. He contends that this denial
was a cruel and unusual punishment.

 The defendant claims entitlement to immunity, as
well as challenging the judgment on the merits.
The plaintiff argues that since the defendant
could have appealed from the denial of his
immunity claim before the trial and judgment, it
is too late for him to appeal now. That is wrong.
Even when there is a right of interlocutory
appeal, a party can wait till the case is over
and then appeal, bringing before us all nonmoot
interlocutory rulings adverse to him. Jays Foods,
L.L.C. v. Chemical & Allied Product Workers
Union, Local 20, 208 F.3d 610, 614 (7th Cir.
2000); Retired Chicago Police Ass’n v. City of
Chicago, 7 F.3d 584, 608 (7th Cir. 1993);
Chambers v. Ohio Dept. of Human Services, 145
F.3d 793, 796-97 (6th Cir. 1998). This principle
is as applicable to rulings on immunity as to any
other interlocutory rulings, SEC v. Quinn, 997
F.2d 287 (7th Cir. 1993); Goff v. Bise, 173 F.3d
1068, 1072 (8th Cir. 1999); Ernst v. Child &
Youth Services of Chester County, 108 F.3d 486,
492-93 (3d Cir. 1997); Kiser v. Garrett, 67 F.3d
1166, 1169 (5th Cir. 1995); but see Price v.
Kramer, 200 F.3d 1237, 1243-44 (9th Cir. 2000),
although as we explained in Quinn the defendant
who postpones his immunity appeal till after
trial forfeits one of the rights that immunity
confers, the right not to be tried at all.
Certainly from our standpoint, however, it is
preferable for a party to file a single appeal at
the end of the case rather than a series of
interlocutory appeals.

 In order that legal doctrine may continue to
evolve in common law fashion, the Supreme Court
has instructed us to decide the merits of an
appeal even if there is a good immunity defense,
since a decision on whether the defendant is
entitled to immunity requires freezing the law as
of the date he acted. Wilson v. Layne, 526 U.S.
603, 609 (1999); County of Sacramento v. Lewis,
523 U.S. 833, 841 n. 5 (1998); Siegert v. Gilley,
500 U.S. 226, 232-33 (1991). Whether this rule is
absolute may be doubted, for reasons explained in
Kalka v. Hawk, 215 F.3d 90, 94-98 (D.C. Cir.
2000), and Horne v. Coughlin, 191 F.3d 244 (2d
Cir. 1999), but the reasons are inapplicable
here. The issue on the merits is important and
should be resolved without further delay. We
shall reverse the judgment on the merits, and so
moot the issue of immunity. But we cannot forbear
to express our surprise at the action of the
district court in rejecting the defense of
immunity. Since no one could believe that a
single 90-day denial of yard privileges would be
a cruel and unusual punishment for a serious
violation of prison disciplinary rules, the
dispositive issue in this case is whether the
stacking of such sanctions to the point of
depriving a prisoner of an entire year of yard
access is cruel and unusual punishment; and as
there was no case law when the defendant acted
indicating that it is and no tenable argument
then or now that stacking so clearly violated the
Eighth Amendment that an official in the
defendant’s position would have had to know that
it did, even without any guidance from case law,
it is obvious that the immunity defense should
have been sustained. Wilson v. Layne, supra, 526
U.S. at 614-15; Anderson v. Creighton, 483 U.S.
635, 639-41 (1987); Burgess v. Lowery, 201 F.3d
942, 944-45 (7th Cir. 2000); Anderson v. Romero,
72 F.3d 518, 526-27 (7th Cir. 1995); Eberhardt v.
O’Malley, 17 F.3d 1023, 1028 (7th Cir. 1994);
McBride v. Village of Michiana, 100 F.3d 457, 460
(6th Cir. 1996); Buonocore v. Harris, 65 F.3d
347, 356-57 (4th Cir. 1995).

 On to the merits. In Davenport v. DeRobertis,
844 F.2d 1310 (7th Cir. 1988), we upheld, as not
clearly erroneous, a judge’s finding that the
Eighth Amendment entitled prisoners held in
segregation for 90 days or more to five hours of
out-of-cell exercise a week. See also Anderson v.
Romero, supra, 72 F.3d at 527-28; Jamison-Bey v.
Thieret, 867 F.2d 1046 (7th Cir. 1989); Allen v.
Sakai, 40 F.3d 1001, 1004 (9th Cir. 1994).
Confinement in segregation is an approximation to
solitary confinement, and evidence that this
court in Davenport found convincing indicates
that long stretches of such confinement can have
serious adverse effects on prisoners’
psychological well-being. When unrelieved by
opportunities for out-of-cell exercise, such
confinement could reasonably be described as
cruel and, by reference to the current norms of
American prisons, unusual. Tighter limits on the
right to exercise have been upheld when the
period of restriction was shorter than 90 days.
E.g., Thomas v. Ramos, 130 F.3d 754, 762-64 (7th
Cir. 1997); Caldwell v. Miller, 790 F.2d 589,
600-01 (7th Cir. 1986).

 The 90-day threshold for considering a denial of
out-of-cell exercise opportunities a possible
violation of the cruel and unusual punishments
clause is of course arbitrary. But issues of
immunity to one side, prison authorities are
entitled to some guidance from the courts with
respect to the meaning of the vague generalities
of the Constitution. We think it a reasonable
rule that a denial of yard privileges for no more
than 90 days at a stretch is not cruel and
unusual punishment. Thomas v. Ramos, supra, 130
F.3d at 763-64; cf. Henderson v. Lane, 979 F.2d
466, 469 (7th Cir. 1992) (per curiam). At least
in general; for the cruel and unusual punishments
clause has a relative as well as an absolute
component. Certain forms of punishment are
considered cruel and unusual without regard to
the conduct for which they are imposed. Lousiana
ex rel. Francis v. Resweber, 329 U.S. 459, 464
(1947); In re Kemmler, 136 U.S. 436, 446-47
(1890); James v. Milwaukee County, 956 F.2d 696,
698-99 (7th Cir. 1992). Even a mass murderer is
not to be executed by being drawn and quartered.
In addition, however, forms of punishment that
are permitted for serious crimes may violate the
clause if imposed for trivial ones. Solem v.
Helm, 463 U.S. 277 (1983); Rice v. Cooper, 148
F.3d 747, 752 (7th Cir. 1998); Leslie v. Doyle,
125 F.3d 1132, 1135 (7th Cir. 1997); United
States v. Saccoccia, 58 F.3d 754, 787-89 (1st
Cir. 1995). That is, there is a norm of
proportionality (though attenuated in recent
decisions of the Supreme Court, notably Harmelin
v. Michigan, 501 U.S. 957, 990-94 (1991), we
continue to recognize it, Henry v. Page, 223 F.3d
477, 482 (7th Cir. 2000)), and we can 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,
though we cannot find any case to support such a
suggestion.

 The infractions here were not trivial, however.
In the first one, the plaintiff and another
inmate attacked and beat a guard, injuring him
seriously enough to require his hospitalization.
In the second, the plaintiff set fire to
blankets, coats, and cardboard boxes, producing
so much smoke that prisoners with respiratory
problems had to be evacuated. Next, the plaintiff
spat in the face of a guard who was trying to
restrain him after the plaintiff had assaulted
another guard. Last, he threw a broom and a
bottle of unspecified "bodily fluids" at a
medical technician, and the fluids got on the
victim’s face. We do not understand the plaintiff
to be arguing that for each such infraction a 90-
day withdrawal of yard privileges would be
excessive punishment, even in conjunction with
the other sanctions imposed on the plaintiff each
time, such as loss of good time. Rather, he asks
us to treat this case as if a 360-day denial of
yard privileges had been decreed for a course of
misconduct embracing the four infractions.

 Suppose we do that; we still do not think that,
in the circumstances, it could reasonably be
found that the punishment was cruel and unusual.
All four infractions occurred when the plaintiff
was outside his cell. All occurred within the
short space of six months. They marked the
plaintiff as violent and incorrigible. To allow
him to exercise in the yard would have given him
additional opportunities to attack prison staff
and set fires. Preventing access to the yard was
a reasonable method of protecting the staff and
the other prisoners from his violent
propensities. Any objection to the punishment
based on considerations of proportionality thus
dissolves and leaves for consideration only
whether the denial of yard privileges for a year
does so much harm to a prisoner that it is
intolerable to the sensibilities of a civilized
society no matter what the circumstances. The
answer is no, and is supported by case law,
Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir.
1988) (per curiam); Bass v. Perrin, 170 F.3d
1312, 1316-17 (11th Cir. 1999); LeMaire v. Maass,
12 F.3d 1444, 1457-58 (9th Cir. 1993), which
casts still further doubt on the district court’s
denial of qualified immunity.

 To confine in "solitary" a prisoner who behaves
like a wild beast whenever he is let out of his
cell is the least cruel measure that occurs to us
for dealing with such a person. What else should
the prison have done? No answer is suggested by
the plaintiff’s lawyer or by the district court,
and we shall merely register our astonishment at
the judge’s remark that none of the plaintiff’s
infractions involved "serious harm to others."
The first inflicted serious harm, and the second
(the arson) and the fourth (the assault with the
bottle of bodily fluids) created a serious danger
of inflicting serious harm.

 It is telling that no credible evidence was
presented of any physical or psychological harm
to the plaintiff as a result of his protracted
confinement in the segregation unit, although he
was permitted to perjure himself by testifying
that he lost weight during the year that he was
denied yard privileges, when unchallenged prison
records showed that he did not lose any weight,
and by testifying that his teeth fell out as a
consequence of his lack of out-of-cell exercise,
when in fact he lost only one tooth and that at
the outset of the period. Even permitting him to
testify about his teeth violated the rules of
evidence. A nonexpert is not permitted to give
expert testimony. Fed. R. Evid. 702. Wholly
lacking in medical knowledge as he was, the
plaintiff was incompetent to testify on the
causal relation if any between exercise and
healthy gums. See Pedraza v. Jones, 71 F.3d 194,
197 (5th Cir. 1995); cf. Fedro v. Reno, 21 F.3d
1391, 1396-97 (7th Cir. 1994); In re TMI
Litigation, 193 F.3d 613, 680 (3d Cir. 1999);
Summers v. Missouri Pacific R.R. System, 132 F.3d
599, 604 (10th Cir. 1997). There was no expert
testimony concerning the effects of the denial of
yard privileges on the plaintiff’s physical or
mental health, though an expert was permitted to
answer a hypothetical question concerning the
possible effect of protracted solitary
confinement on prisoners in general.

 In any event, it is wrong to treat stacked
sanctions as a single sanction. To do so produces
the ridiculous consequence of enabling a
prisoner, simply by recidivating, to generate a
colorable Eighth Amendment claim. Suppose that
the sanction for an infraction of the prison’s
disciplinary rules were only a single week’s
withdrawal of yard privileges; on the plaintiff’s
theory, if he committed 52 infractions, he could
complain that a year’s denial of yard privileges
violated his rights under the Eighth Amendment.
"If [the defendant] has subjected himself to a
severe penalty, it is simply because he has
committed a great many of such offenses. It would
scarcely be competent for a person to assail the
constitutionality of the statute prescribing a
punishment for burglary, on the ground that he
had committed so many burglaries that, if
punishment for each were inflicted upon him, he
might be kept in prison for life. The mere fact
that cumulative punishments may be imposed for
distinct offenses in the same prosecution is not
material upon this question." State v. Four Jugs
of Intoxicating Liquor, 2 Atl. 586, 593 (Vt.
1886), quoted in O’Neil v. Vermont, 144 U.S. 323,
331 (1892) (emphasis in original); see also
Hawkins v. Hargett, 200 F.3d 1279, 1285 n. 5
(10th Cir. 1999); United States v. Aiello, 864
F.2d 257, 265 (2d Cir. 1988). Every disciplinary
sanction, like every sentence, must be treated
separately, not cumulatively, for purposes of
determining whether it is cruel and unusual. Any
other rule would permit a defendant, at the end
of a long criminal career, to ask a court to tack
together all his criminal punishments and decide
whether, had they been a single punishment, they
(it) would have been cruel and unusual. Suppose a
defendant sentenced to death had previously
served 20 years in prison for an unrelated crime.
Would it be open to him to argue that imprisoning
a person for 20 years and then executing him
constitutes cruel and unusual punishment? We
think not.

 Incidentally, we are at a loss to understand
what the district judge was thinking when he
upheld an award of punitive damages against this
defendant, even if we are wrong in thinking that
there was no violation of the plaintiff’s rights.
There is no suggestion that the defendant acted
with any malice toward the plaintiff. He imposed
a sanction authorized by state law; and though he
imposed it repeatedly, not only was this stacking
also authorized, but he had no reason to believe
that he was violating the Eighth Amendment. The
criteria for imposing punitive damages in a civil
rights case, on which see Smith v. Wade, 461 U.S.
30, 56 (1983); Kolstad v. American Dental Ass’n,
527 U.S. 526, 535-36 (1999); Kyle v. Patterson,
196 F.3d 695, 697-98 (7th Cir. 1999);
Merriweather v. Family Dollar Stores of Indiana,
Inc., 103 F.3d 576, 581-82 (7th Cir. 1996);
Iacobucci v. Boulter, 193 F.3d 14, 25-26 (1st
Cir. 1999), were not remotely satisfied here.
Indeed, there isn’t enough evidence of the state
of mind of the defendant to justify a finding of
liability, even if the plaintiff’s confinement
was a violation of the Eighth Amendment, as we
have held it is not. For there is no evidence
that Superintendent Ramos was actually aware of
any risk to the plaintiff’s physical or
psychological well-being. See Wilson v. Seiter,
supra, 501 U.S. at 303; In re Long Term
Administrative Segregration of Inmates Designated
as Five Percenters, 174 F.3d 464, 471-72 (4th
Cir. 1999); Bass v. Perrin, supra, 170 F.3d at
1317.

 The judgment of the district court is reversed
with instructions to enter judgment for the
defendant.

Reversed.




 RIPPLE, Circuit Judge, concurring in the
judgment. The Eighth Amendment to the
Constitution of the United States prohibits the
infliction of cruel and unusual punishment. The
question we must resolve in this case is whether
Mr. Ramos violated this constitutional provision
when he ordered Mr. Pearson to be confined in
segregation without an opportunity to exercise
outside his cell for a long period of time.

1.

 Our understanding of the issue before us--and of
the import of the majority’s conclusion--will
best be understood if the facts surrounding Mr.
Pearson’s extended deprivation are placed in the
broader factual context of the case.
 Mr. Pearson is serving a 45-year sentence in
Stateville Correctional Center ("Stateville") for
murder. For disciplinary reasons, Mr. Pearson was
placed in segregation in "I House"; Mr. Ramos is
the Unit Manager (or cell block supervisor) for I
House. Inmates in segregation usually are allowed
at least one hour of outdoor recreation ("yard")
privileges per week. After an inmate has been in
segregation for 90 days or more, he is allowed
five hours of yard time per week. However, under
a Stateville directive, called "Administrative
Directive 05.03.140" or "Department Rule 504,"
the warden or his designee (here, Mr. Ramos) can
limit or deny yard privileges to inmates who have
been found guilty of certain offenses or for
other disciplinary reasons. According to the
policy, yard privileges may be restricted for up
to 90 days for an inmate’s first offense and,
thereafter, allows for successive restrictions to
be imposed for subsequent offenses. When the
warden orders a lockdown, no prisoners are given
yard time. Inmates are not prohibited from
exercising in their cells (to the extent that
exercise in the cells is possible), and they are
given an instruction pamphlet on how to do so.

 Over the period beginning in November 1993, and
ending in May 1994, the prison’s adjustment
committee found Mr. Pearson guilty of a series of
infractions./1 For each infraction, Mr. Ramos
restricted Mr. Pearson’s yard privileges for 90
days, and, except for a one-week gap,/2 the
restrictions ran consecutively. See R.47 at 3-4.
Except for this week-long gap in March 1993,
however, Mr. Pearson was denied yard privileges
at all times between December 15, 1993, and
December 23, 1994.

 This loss of yard privileges imposed by Mr.
Ramos was separate from, and in addition to, that
imposed by the prison adjustment committee. The
prison adjustment committee’s disciplinary
measures for Mr. Pearson’s infractions included
the revocation of good time credits, the
imposition of additional time in segregation, the
demotion of Mr. Pearson to "C grade" for a period
of time, and the denial of commissary privileges
for a period of time.

 During this year of yard restriction, Mr.
Pearson’s daily life was, as a practical
matter,/3 limited to his cell./4 In October
1994, Mr. Pearson submitted a grievance in which
he protested the lack of yard privileges and
claimed that, as a result, he was suffering
"psychological harm and stress, etc." See R.47 at
5 (internal quotation marks and citations
omitted). At trial, Mr. Pearson testified that he
suffered from appetite and weight loss and that
he was not "as big" as before. See id. (internal
quotation marks and citations omitted).

2.

 The panel majority holds that, as a matter of
law, the prolonged confinement of Mr. Pearson in
this manner does not violate the Eighth
Amendment. It arrives at this conclusion by
characterizing Mr. Pearson’s continuous
confinement under these circumstances as simply
the unfortunate accumulation of consecutive
sentences on Mr. Pearson’s part. Indeed, making
no distinction between sentences to confinement
by a court for criminal charges and the
administrative measures at issue here, the
majority emphasizes that, when multiple offenses
are committed, the Cruel and Unusual Punishments
Clause is not violated when separate punishments
are imposed for each violation; the concomitant
enhancement in the total sanction can be viewed
as the product of the offender’s recalcitrant
behavior. See O’Neil v. Vermont, 144 U.S. 323,
331 (1892).

  This general principle of criminal law is
unexceptional. With respect to criminal sentences
imposed by a court, it is well-established in our
jurisprudence. The question remains, however,
whether it is appropriate or helpful to the
resolution of the situation before us today. The
problem before us does not require that we simply
measure against Eighth Amendment standards the
length of a prison sentence. Rather, this case
concerns conditions of confinement. We must
determine whether a prison official can execute
administrative penalties in such a way as to
deprive the prisoner of an opportunity for
exercise outside his cell for a prolonged period
of time, in this case, almost a year.

3.

 Relying on the methodology articulated by the
Supreme Court in a number of decisions,/5 the
panel majority immediately proceeds to the merits
of the appeal rather than examine in the first
instance the possibility that there is a valid
qualified immunity defense. The panel majority
then determines that, contrary to a jury verdict
rendered under instructions about which neither
party takes issue, Mr. Pearson was not treated in
a manner that violates the Eighth Amendment.

 The basic principles governing a conditions of
confinement case under the Eighth Amendment are
well-settled. The Supreme Court has said that "a
prison official may be held liable under the
Eighth Amendment for denying humane conditions of
confinement only if he knows that inmates face a
substantial risk of serious harm and disregards
that risk by failing to take reasonable measures
to abate it." Farmer v. Brennan, 511 U.S. 825,
847 (1994). This test has an objective and a
subjective component. To satisfy the objective
component, the inmate must establish that the
alleged deprivation is "objectively, sufficiently
serious." Farmer, 511 U.S. at 834 (internal
quotation marks and citations omitted). To be
sufficiently serious, the official’s action or
omission must result in "the denial of the
minimal civilized measure of life’s necessities."
Farmer, 511 U.S. at 834 (internal quotation marks
and citations omitted). This circuit has said
that only "extreme deprivations" make out a
"conditions-of-confinement claim." Henderson v.
Sheahan, 196 F.3d 839, 845 (7th Cir. 2000)
(internal quotation marks and citations omitted).
To satisfy the subjective component, the inmate
must demonstrate that the prison official knew of
a substantial risk of serious injury. The
official must be aware of the facts from which
the inference could be drawn that a substantial
risk of serious harm exists. See Farmer, 511 U.S.
at 842; Henderson, 196 F.3d at 845.

 There can be no doubt--indeed it is common
ground between the parties and admitted by the
panel majority--that a failure to afford
prisoners an adequate opportunity to exercise can
state an Eighth Amendment claim. See Antonelli v.
Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996).
Although Mr. Ramos is correct that cases like
Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.
1988), do not set out the constitutional minimum
for exercise time, the principles that can be
drawn from this circuit’s case law manifest a
clear aversion to denying prisoners outside
exercise time for extended periods absent an
acute need to do so. Davenport and Harris v.
Fleming, 839 F.2d 1232 (7th Cir. 1988), strongly
suggest that a total restriction is acceptable
only when that restriction is short term. See
Davenport, 844 F.2d at 1315 ("[W]e are impressed
by the number of decisions that hold or suggest
that a failure to provide inmates (confined for
more than a very short period . . .) with the
opportunity for at least five hours a week of
exercise outside the cell raises serious
constitutional questions."); Harris, 839 F.2d at
1236 (emphasizing that the restriction was only
four weeks). One year is not short term. No
doubt, there are situations in which
considerations of prison security require such a
drastic curtailment of an inmate’s movement.
There are indeed, as the panel majority notes,/6
extreme cases in which such measures have been
tolerated because of particularly acute security
situations. For instance, the Ninth Circuit’s
decision in LeMaire stands for the proposition
that prison officials may impose complete yard
restrictions--even for an extended period of
time--when there is an acute security need to do
so. 12 F.3d at 1457-58. This circuit as well has
acknowledged this exception. See Anderson v.
Romero, 72 F.3d 518, 527 (7th Cir. 1995) ("To
deny a prisoner all opportunity for exercise
outside of his cell would, the cases suggest,
violate the Eighth Amendment unless the prisoner
posed an acute security risk if allowed out of
his cell for even a short time.").

4.

 The case before us presents a close and
difficult one for the application of these
principles. Under our existing case law, which
the panel majority does not purport to overrule,
a total restriction on exercise of this duration
would not be sustainable absent exigent
circumstances. Therefore, the action of Mr. Ramos
in imposing such a restriction depends entirely
on whether there is an adequate basis in prison
security concerns. In this regard, there is
certainly evidence in the record that Mr. Pearson
was a dangerous offender. He received three of
the four restriction periods because of assaults
he perpetrated on prison staff. On the other
hand, it is clear that Mr. Pearson did not pose
the serious threat that the "beast" of an inmate
in LeMaire posed. 12 F.3d at 1464 (Noonan, J.,
dissenting).

 The existence of viable alternatives to out-of-
cell exercise must also be taken into
consideration. As Mr. Ramos argues, Mr. Pearson
was not cut off from all human contact. 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 for meaningful exercise." R.88 at 2.

 Perhaps the most difficult question to resolve
is whether Mr. Ramos acted with a sufficiently
culpable state of mind for him to be liable. The
record shows that Mr. Ramos imposed these
successive restrictions on Mr. Pearson in
response to his disciplinary infractions and the
safety threat Mr. Pearson had demonstrated. Thus,
Mr. Ramos’ motivation for these restrictions had
some penological purpose. Moreover, if it is true
that Mr. Ramos has seen other prisoners
exercising in their cells, it might be too much
to say that he consciously disregarded a
substantial risk of harm.

 Given the difficult factual assessments that
must be made in this case, including the issue of
intent, the district court took the view that
whether the confinement of a prisoner without the
opportunity for exercise outside his cell for so
long a period constituted cruel and unusual
punishment was an issue for the jury. It
therefore submitted the issue to the jury under
instructions that are not contested here. The
jury found that such prison conditions
constituted cruel and unusual punishment. The
district court, perceiving no error in the jury
verdict, let it stand.
 My colleagues now ignore that jury verdict and
hold that, as a matter of law, the confinement of
Mr. Pearson under these conditions did not
constitute cruel and unusual punishment. It is
difficult to see where the majority finds the
legal error that justifies such a rigid approach.
As I have noted earlier, it certainly cannot be
in the district court’s permitting the jury to
assess the punishment in the aggregate. This is
not a simple sentencing matter, but a prison
conditions matter. The basic question is not
whether Mr. Pearson can be deprived of a certain
number of days of yard time, but whether he can
be deprived of those days in a continuous manner.
Nor can the majority’s approach be justified on
the ground that the two-step process outlined by
the Supreme Court for the assessment of qualified
immunity claims requires such action. Surely, the
court complies with the Supreme Court directive
by holding that the record developed at trial
creates a genuine issue of triable fact as to
whether Mr. Ramos’ actions constituted cruel and
unusual punishment.

 At bottom, the majority appears simply to
disagree with the jury as to whether this
incarceration offends the sensibilities of a
civilized society. Central to its analysis
appears to be the belief that a "beast," slip op.
at 6, deserves beastly treatment. Moreover, its
manner of expressing that disagreement places in
doubt the circumstances under which it would be
appropriate, in its view, to submit an Eighth
Amendment case to the jury. In the past, we have
recognized the role of the jury in assessing
prison condition cases. See Walker v. Shanksky,
28 F.3d 666, 673 (7th Cir. 1994). Today’s opinion
marks a decided mistrust in that institution and
a concomitant endorsement of the view that judges
are endowed with a superior view of what our
society ought to tolerate in the treatment of
prisoners.

5.

 If all the facts of this case are construed in
favor of Mr. Pearson, there certainly is
sufficient evidence to permit a jury to find a
violation of the Eighth Amendment. We
nevertheless must determine whether Mr. Ramos was
entitled to qualified immunity at the time of Mr.
Pearson’s prolonged incarceration. "[G]overnment
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." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The law must be clear when the defendant
official acted. See, e.g., Rakovich v. Wade, 850
F.2d 1180, 1208-09 (7th Cir. 1988) (en banc).

 Even if we construe all facts in favor of Mr.
Pearson, Mr. Ramos is correct in his argument
that, in 1994, at the time he acted, it was not
entirely clear that the confinement he imposed
violated the Eighth Amendment. Nor was it clear
at the time that "stacked" administrative
punishments imposed for subsequent infractions
were to be analyzed cumulatively. Indeed, my
colleagues take the contrary position today.
Accordingly, I believe that Mr. Ramos is entitled
to qualified immunity and, on that basis, join in
reversing the judgment of the district court.



/1 These infractions were: (1) seriously assaulting
a prison official in November 1993; (2) setting
fires outside his cell in March 1994; (3)
assaulting a prison official in April 1994; and
(4) seriously assaulting yet another prison
official in May 1994.

/2 There was a one-week gap between the 90-day
periods for his first and second offenses. The
first 90-day period ended on March 15, 1994, and
the second period began on March 23, 1994.

/3 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.

/4 Mr. Pearson apparently transferred cells a few
times over the course of the year. It appears
that each of Mr. Pearson’s cells would have
contained a sink, a bed, and a toilet. They also
would have had a window, which could be cracked
open. In its summary judgment order, the district
court reports that his cell contained an open
area approximately 10’2" long and between 3’8"
and 4’8" wide. See R.47 at 4. Later, in the
district court’s order denying the motion for
judgment as a matter of law, the court stated
that the open area in Mr. Pearson’s cell was "two
by five feet." R.88 at 2.

/5 See Wilson v. Lane, 526 U.S. 603, 609 (1999);
County of Sacramento v. Lewis, 523 U.S. 833, 841
n.5 (1998); Siegent v. Gilley, 500 U.S. 226, 232-
33 (1991).

/6 See, e.g., Bass v. Perrin, 170 F.3d 1312, 1316-17
(11th Cir. 1999); LeMaire v. Maass, 12 F.3d 1444,
1457-58 (9th Cir. 1993).
