                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1443
GENISE HART, et al.,
                                                Plaintiffs-Appellants,
                                  v.

MICHAEL SHEAHAN, SHERIFF OF COOK
 COUNTY, and COOK COUNTY,
                                               Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 03 C 1768—James B. Zagel, Judge.
                          ____________
   ARGUED NOVEMBER 30, 2004—DECIDED FEBRUARY 1, 2005
                          ____________


  Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
  POSNER, Circuit Judge. This is an appeal from the dis-
missal, for failure to state a claim, of a suit by female
inmates of the Cook County Jail in Chicago against the jail’s
superintendent and the County. The plaintiffs are pretrial
detainees who complain that the defendants, by gratu-
itously exposing them to dangerous and degrading condi-
tions of confinement, are depriving them of their liberty
without due process of law and thus violating the Four-
teenth Amendment. They seek an injunction and damages.
2                                                No. 04-1443

   We begin with a difficult question of appellate jurisdic-
tion. The plaintiffs appealed within 30 days of the denial of
their postjudgment motion under Fed. R. Civ. P. 59(e) for
reconsideration of the judgment dismissing their case. But
whether the appeal brought up for review not only the
denial of the motion but also—what is much more impor-
tant given the limited scope of appellate review of a denial
of a Rule 59(e) motion—the dismissal of the suit depends on
whether the motion was filed within 10 days after the entry
of the judgment. Fed. R. App. P. 4(a)(4)(A)(iv). The judg-
ment was entered on December 19, 2003. The Rule 59(b)
motion was filed on January 7, which, because of the
exclusion of Christmas and weekend days, was the eleventh
day after the filing of the motion unless December 26 is also
excluded from the computation—and it is excluded only if
it was a “legal holiday” within the meaning of Fed. R. Civ.
P. 6(a)
  That rule provides that “when the period of time pre-
scribed or allowed [by a Federal Rule of Civil Procedure] is
less than 11 days, intermediate . . . legal holidays shall
be excluded in the computation,” “legal holiday” being
defined in the rule to include not only Thanksgiving,
Christmas, and other holidays enumerated in the rule
but also “any other day appointed as a holiday by the
President or the Congress of the United States, or by the
state in which the district court is held.” The day after
Christmas is not one of the enumerated holidays. But on
December 9, 2003, President Bush had issued Executive
Order 13320, § 3, 68 Fed. Reg. 69,295, which states, so far as
pertinent here, that “Friday, December 26, 2003, shall be
considered as falling within the scope of Executive Order
11582 of February 11, 1971, and of 5 U.S.C. 5546(b).” So we
go to Executive Order 11582, § 2(a), 36 Fed. Reg. 2,957 (Feb.
11, 1971), and find that it specifies how federal employees
No. 04-1443                                                      3

are to be compensated on legal holidays or “any other
calendar day designated as a holiday by Federal statute
or Executive order.” Section 5546(b) of Title 5 likewise
specifies compensation for “an employee who performs
work on a holiday designated by Federal statute [or]
Executive order.” (The President’s authority to declare legal
holidays is implied by this provision and also by 5 U.S.C. §
6104(3), as well as by joint resolutions that were eventually
codified in these statutes. J. Res. 5, 23 Stat. 516 (Jan. 6, 1885);
J. Res. 551, 52 Stat. 1246 (June 29, 1938).)
  The defendants argue that because Executive Order 13320,
on which the plaintiffs rely for the proposition that Decem-
ber 26 of 2003 was a legal holiday, does not say that the
President has declared December 26 to be a holiday, the
plaintiffs’ Rule 59(e) motion was untimely. In support they
cite our decision in Latham v. Dominick’s Finer Foods, 149 F.3d
673 (7th Cir. 1998). The deadline for filing a Rule 59(e)
motion in that case was December 26, 1997, also a Thursday.
But the court was closed that day, and the closure order said
that motions due that day didn’t have to be filed until the
following Monday. We held that because the plaintiff
couldn’t have filed on December 26, he was excused. But
not because December 26 was a legal holiday; for we
reasoned that while President Clinton had ordered the
executive branch of the federal government closed that day,
he had not declared a legal holiday; nor had he ordered the
federal courts closed. The closure order had come from the
chief judge of the district court, who of course is not the
President and did not purport to be declaring a legal
holiday and anyway lacked the authority to do so. Garcia-
Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 9 (1st Cir.
2004). We analogized the closure order to an order closing
the court because of bad weather, noting that Rule 6(a)
excludes the last day to file if “weather or other conditions
4                                                 No. 04-1443

have made the office of the clerk of the district court
inaccessible” on that day. Because of the last-day limitation
in this rule on which we were basing our decision by
analogy, we said that our decision had no application to a
case in which the clerk is inaccessible on an intermediate
day. Whether the appeal in this case flies or falls, therefore,
depends entirely on whether December 26, 2003, was a legal
holiday.
  Our statement in Latham that the corresponding day in
1997 was not a legal holiday was a dictum—for whether
that day was or was not a holiday, the appeal was timely by
virtue of the chief judge’s closure order—and so does not
bind us in this case. The dictum was rejected in Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1098-
99 (D.C. Cir. 2003). At issue in that case was an earlier
executive order by President Bush materially identical to the
one at issue in this case, as well as to President Clinton’s
1997 order. The court in Mashpee thought the fact that the
executive order expressly incorporated provisions govern-
ing compensation of federal employees on legal holidays
was a sufficient indication that the President had declared
December 26 a holiday. We had not considered this possible
interpretation of Clinton’s (=Bush’s) executive order in
Latham. We own to finding the D.C. Circuit’s interpretation
persuasive. It is true that that court bolstered its analysis by
pointing out that one of the litigants was a federal agency,
which would be closed on December 26; but the court did
not make that observation the linchpin of its analysis. It
would have been odd had it done so; it would have meant
that the opposing litigants in the case had different filing
deadlines, since the plaintiff was not a federal agency.
  Mashpee is supported by the natural understanding of
what the President is doing when he closes the executive
branch on the day after Christmas: he is extending the
No. 04-1443                                                  5

Christmas holiday. It would be positively Grinch-like for the
President to say, “you can have December 26 off, but don’t
think it’s a legal holiday.” It would mean, among other
things, that federal employees who had to work that day
(such as air controllers) would not receive the double pay
that they are entitled to for working on a holiday. 5 U.S.C.
§ 5546(b). Realistically, moreover, when Christmas falls on
a Thursday it is pretty hard to get employees to put in a
serious day’s work on Friday. This is true for the private
sector as well as for the public sector. So that’s a lost day,
and with the time for preparing and filing a Rule 59(e)
motion already compressed to only 10 days, it makes
practical sense to interpret the Presidential closure order as
declaring a legal holiday.
  The clincher is the superior simplicity of a rule that
says that when the President closes the government for
celebratory or commemorative reasons (see, e.g., Execu-
tive Order 13343, 69 Fed. Reg. 32,245 (June 6, 2004), clos-
ing the government for a day of commemoration of Presi-
dent Reagan), rather than because of a budgetary crisis (see
“Federal Workers Bear Brunt of Budget Shutdown,” Nov.
14, 1995 http://www.cnn.com/US/9511/debt_limit/11-
13/employees/index.html), or for a snow emergency,
terrorist act, or some other force majeure, the presumption is
that he has declared a legal holiday. The presumption has
not been rebutted.
  So we can turn to the merits of the appeal. Had the
plaintiffs been convicted, their challenge to the conditions of
their confinement would be governed by the “cruel and
unusual punishments” clause of the Eighth Amendment,
which has been interpreted to require proof that the con-
victs’ custodians were deliberately indifferent to a serious
hazard created by those conditions. Farmer v. Brennan, 511
6                                                  No. 04-1443

U.S. 825, 828 (1994); Riccardo v. Rausch, 375 F.3d 521, 525-26
(7th Cir. 2004). These plaintiffs, however, have not been
convicted of a crime. It would be odd, to say the least, if by
reason of not having been convicted they had fewer rights
than convicts; and of course they don’t. The “liberty” that
the due process clauses secure against deprivation without
due process of law includes not only the right to be free,
which pretrial detainees do not have, but also the right to
bodily integrity, which they do. Washington v. Glucksberg,
521 U.S. 702, 719-20 (1997); Rochin v. California, 342 U.S. 165,
172 (1952); Doe v. Taylor Independent School District, 15 F.3d
443, 450-52 (5th Cir. 1994) (en banc). They don’t need the
Eighth Amendment to be able to complain about conditions
that would violate their Eighth Amendment rights if they
were convicted criminals rather than pretrial detainees.
  In the ruling case of Bell v. Wolfish, 441 U.S. 520 (1979), the
Supreme Court said that the proper question to guide
determination of the constitutionality of restrictive condi-
tions in pretrial detention was “whether those condi-
tions amount to punishment of the detainee.” Id. at 535
(footnote omitted). We doubt that the Court meant that
the plaintiff has to show that the jail officials meant to
punish him, though that is the construction placed on the
decision by the dissenting Justices. Id. at 565, 584-86. The
majority did say that “loading a detainee with chains and
shackles and throwing him in a dungeon may ensure his
presence at trial and preserve the security of the institution.
But it would be difficult to conceive of a situation where
conditions so harsh, employed to achieve objectives that
could be accomplished by so many alternative and less
harsh methods, would not support a conclusion that the
purpose for which they were imposed was to punish.” Id. at
539 n. 20. But why proof of a punitive purpose should be
necessary is unclear. The jail officials might simply be
No. 04-1443                                                     7

preoccupied with making sure that none of the inmates
caused trouble in the jail, or escaped. Punishment is not
the only possible motive for brutal treatment. But what-
ever the motive is, if the brutal treatment is gratuitous,
due process in its substantive sense has been violated. May
v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000); Rapier v. Harris,
172 F.3d 999, 1005 (7th Cir. 1999); Lyons v. Powell, 838 F.2d
28, 30-31 (1st Cir. 1988) (per curiam); cf. Demery v. Arpaio,
378 F.3d 1020, 1029-32 (9th Cir. 2004).
  “Punishment” in such a case is really just a name for
unreasonably harsh treatment meted out to inmates who
have not yet been convicted of any crime. As we said in May
v. Sheahan, supra, 226 F.3d at 884, another case about the
conditions in which inmates are held in the Cook County
Jail, “the use of bodily restraints constitutes punishment in
the constitutional sense if their use is not rationally related
to a legitimate non-punitive government purpose or they
appear excessive in relation to the purpose they allegedly
serve.” See also Block v. Rutherford, 468 U.S. 576, 583-85
(1984); Bell v. Wolfish, supra, 441 U.S at 537-39; Zarnes v.
Rhodes, 64 F.3d 285, 291 (7th Cir. 1995); Collazo-Leon v. U.S.
Bureau of Prisons, 51 F.3d 315, 317-18 (1st Cir. 1995). Even
Eighth Amendment cases no longer require proof of a
punitive purpose; callous indifference will do, Farmer v.
Brennan, supra, 511 U.S. at 834-36; Haley v. Gross, 86 F.3d 630,
641-42 (7th Cir. 1996); Blackmore v. Kalamazoo County, 390
F.3d 890, 895 (6th Cir. 2004); Phelps v. Kapnolas, 308 F.3d 180,
185-86 (2d Cir. 2002) (per curiam), even if it is not intended
to augment the prisoner’s punishment.
  Another way to interpret the cases, however, is that they
understand the Eighth Amendment’s term cruel and
unusual “punishments” to refer to the character of the act
rather than to the intention in inflicting it. If the act involves
8                                                  No. 04-1443

the gratuitous infliction of pain or suffering it is deemed to
be punishment, and as long as the act was intended it is a
violation of the prisoner’s constitutional right even if the act
was not intended as punishment.
   On either understanding of the Eighth Amendment’s use
of the word “punishments,” the standards applicable to
complaints by convicts and by pretrial detainees about
unsafe conditions of confinement merge. See, e.g., Zentmyer
v. Kendall County, 220 F.3d 805, 810 (7th Cir. 2000); Burrell v.
Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002); Gibbs v.
Grimmette, 254 F.3d 545, 548-49 (5th Cir. 2001); Barrie v.
Grand County, 119 F.3d 862, 868-69 (10th Cir. 1997). Al-
though some cases prefer to say that the rights of pretrial
detainees are “at least” as great as those of convicts, e.g.,
County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998);
Washington v. LaPorte County Sheriff’s Department, 306 F.3d
515, 517 (7th Cir. 2002); Jackson v. Illinois Medi-Car, Inc., 300
F.3d 760, 764 (7th Cir. 2002); Payne for Hicks v. Churchich, 161
F.3d 1030, 1040 (7th Cir. 1998), they do not indicate what
greater rights the pretrial detainees might have. They do
have some: they cannot be punished (except for infractions
of jail rules or other offenses committed in the jail, Rapier v.
Harris, supra, 172 F.3d at 1003; Collazo-Leon v. U.S. Bureau of
Prisons, supra, 51 F.3d at 318-19) even in a nonbrutal fashion,
because punishment requires a conviction. Id. But when the
issue is whether brutal treatment should be assimilated to
punishment, the interests of the prisoner is the same
whether he is a convict or a pretrial detainee. In either case
he (in this case she) has an interest in being free from
gratuitously severe restraints and hazards, while the
detention facility has an interest in protecting the safety of
inmates and guards and preventing escapes.
    We have now to apply the standard. Our only source of
No. 04-1443                                                  9

facts is the complaint. The following are its essential allega-
tions. The jail, or at least the part where the women are held,
is divided into a number of tiers. Each tier contains cells,
each of which houses two inmates. Each tier also has a day
room where the inmates can socialize and watch television,
and adjacent to the day room are shower stalls. The tiers are
separated by locked doors, at each of which a guard is
stationed. From his station he can see what is going on in
the day room but cannot see inside the cells. Once a month
the jail is locked down, meaning that all the inmates are
confined to their cells to enable the guards to search the
entire facility for weapons and contraband. The lockdown
lasts from Friday afternoon to Sunday afternoon—48 to 50
hours—and during that entire time the inmates are confined
to their cells. They are fed, but they are not under the
observation, or even within hailing distance, of the guards,
who are busy with the searches. If during this protracted
period of sequestration two inmates sharing a cell get into
a fight, as they not infrequently do, or experience some
other crisis, such as giving birth, they often can’t get the
attention of a guard, and injuries, sometimes serious, result.
The custodian of the jail, Sheriff Sheahan, is well aware of
all this. (We emphasize that at this stage in the litigation
these are merely allegations and not proven facts.)
  These consequences might not condemn the administra-
tion of the jail if there were no other way to conduct the
lockdown. But given the allegation that the tiers are sepa-
rated by a locked door, it is unclear why, when the guards
have finished searching one tier, which apparently takes less
than an hour, they cannot let the inmates of that tier out of
their cells so that they can enter the day room and thus be in
sight and hearing of a guard and therefore be able to
summon him should trouble erupt. Of course while the tier
is being searched all the inmates in that tier have to be
10                                              No. 04-1443

locked in their cells. If they were roaming around, an inmate
whose cell hadn’t been searched yet could slip a weapon or
contraband to an inmate whose cell had been searched and
was now in the day room with access to the grates in the
doors of all the other cells. But unless inmates can go
between tiers, once a tier has been searched there is no
apparent reason why the inmates in that tier can’t be let out
of their cells. There may well be a reason of which we’re
unaware, but the case is in the pleading stage and we have
no evidence that would enable us to identify and evaluate
such a reason.
   The defendants point us to a paragraph in the complaint
which states that during a lockdown one of the plaintiffs
was attacked by her cellmate and yelled for help but “it took
approximately 10 minutes for an inmate worker to get the
attention of a correctional officer.” The defendants argue
that the quoted passage pleads the plaintiffs out of court by
alleging that an inmate (the “inmate worker”) had managed
to enter the tier, thus showing that there is traffic between
tiers and it is therefore necessary for the entire jail to be
locked down. The argument fails. The incident occurred
during a lockdown, when according to the defendants
themselves all the inmates are locked in their cells, so what
was this “inmate worker” doing? There are a number of
possible answers—all consistent with the plaintiffs’ claim.
Some inmates may be trusted. Some, who may not be
trusted, may nevertheless be needed to work during
lockdowns and maybe they are searched when they pass
from a searched tier to a tier that hasn’t been searched yet.
Or maybe the plaintiff’s tier had been searched and inmate
workers are allowed into a tier as soon as the search of that
tier has been completed.
  The district judge misunderstood the plaintiffs’ claim,
No. 04-1443                                                   11

though forgivably since it is not well articulated. He thought
they were arguing only “that the searches could
be performed faster and that detainees could then be
immediately released from their cells.” Were that their
argument, it could well be found not to state a claim, as it
would be ridiculous for judges to be placing time limits on
the search of a jail cell. Cf. Lunsford v. Bennett, 17 F.3d 1574,
1581-82 (7th Cir. 1994); Whitnack v. Douglas County, 16 F.3d
954, 958 (8th Cir. 1994). But the heart of the plaintiffs’ claim,
with enough merit to withstand a motion to dismiss, is that
the jail is subjecting them to a risk of serious harm by an
unreasonably protracted detention of them out of sight and
hearing of guards.
  So the judgment must be reversed. We offer several
observations for guidance on remand. First, the judge
dismissed the suit without ruling on whether, as the
plaintiffs requested, the case should be certified as a class
action. That should be the first order of business on remand.
Fed. R. Civ. P. 23(c)(1)(A); cf. Nelson v. Murphy, 44 F.3d 497,
500 (7th Cir. 1995); Koch v. Stanard, 962 F.2d 605, 607 (7th
Cir. 1992); Watkins v. Blinzinger, 789 F.2d 474, 475 n. 3 (7th
Cir. 1986). Second, the judge should define the issues
carefully to comport with the analysis in this opinion, in
effect pruning the overlong complaint of untenable charges.
Third, to the extent that damages as well as injunctive relief
are sought, the judge should promptly address issues of
immunity and municipal liability.
  One loose end remains to be tied up. The defendants
object to the plaintiffs’ having referred in their reply brief to
the report of a grand jury investigation into abuses at
the Cook County Jail. To present new evidence at the appeal
stage is improper and in appropriate cases sanctionable.
Youker v. Schoenenberger, 22 F.3d 163, 169 (7th Cir. 1994). But
a party is free to cite academic or other studies that may be
12                                                  No. 04-1443

factual in nature, provided the facts are “legislative” rather
than “adjudicative” in character, that is, provided they are
facts that help a court formulate a rule, as distinct from facts
specific to the case that help the trier of fact decide whether
the rule applies to the case. Indiana Harbor Belt R.R. v.
American Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990);
Daggett v. Commission on Governmental Ethics & Election
Practices, 172 F.3d 104, 112 (1st Cir. 1999); United States v.
Hernandez-Fundora, 58 F.3d 802, 810-12 (2d Cir. 1995). The
report of an investigation could be either. But the plaintiffs
have made clear that they want to use the grand jury report
as a source of adjudicative facts. They argue that the
findings in it are evidence, and appeal to the public-records
exception to the hearsay rule, Fed. R. Evid. 803(8)(c), which
is pertinent only when hearsay is sought to be used as
evidence, rather than merely as background; only proof of
adjudicative facts is governed by the rules of evidence.
  But in objecting to what the plaintiffs have done, the
defendants overlook the procedural posture. This is an
appeal from the grant of a motion to dismiss for failure to
state a claim, a grant that is proper only if there is no state of
facts consistent with the complaint that would entitle the
plaintiffs to relief. In submitting the report of the grand jury
investigation, the plaintiffs were merely indicating that, yes,
there may well be facts they could prove that would show
they had a claim. There was no impropriety, e.g., Thomas v.
Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004); Trevino v.
Union Pacific R.R., 916 F.2d 1230, 1239 (7th Cir. 1990);
Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 912
(7th Cir. 1985), and so there is no occasion for the imposition
of sanctions.
                                   REVERSED AND REMANDED.
No. 04-1443                                            13

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—2-1-05
