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

No. 06-2099
NATHAN GILLIS,
                                           Plaintiff-Appellant,
                              v.

JON E. LITSCHER, GERALD A. BERGE,
Warden, BRADLEY HOMPE, et al.,
                                 Defendants-Appellees.
                    ____________
          Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 02-C-463—William C. Griesbach, Judge.
                        ____________
 ARGUED SEPTEMBER 28, 2006—DECIDED NOVEMBER 14, 2006
                        ____________


  Before FLAUM, Chief Judge, and RIPPLE and EVANS,
Circuit Judges.
  EVANS, Circuit Judge. 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.
2                                               No. 06-2099

  Nathan Gillis alleges in this case, brought under 42
U.S.C. § 1983, that his rights under the Eighth and Four-
teenth Amendments to the United States Constitution were
violated while he was a prisoner at the Wisconsin Secure
Program Facility at Boscobel.
  The district court granted summary judgment for the
defendants and Gillis appeals, raising two important issues.
He contends there is a genuine issue of material fact
precluding summary judgment both as to whether a
Behavioral Modification Program (BMP) imposed on him for
an infraction of the rules constituted cruel and unusual
punishment in violation of the Eighth Amendment and
whether the deprivation he suffered under the BMP was an
atypical and significant hardship, thus implicating his due
process rights.
  The proposed findings of fact the parties filed with the
district court tell the following story. The prison in
Boscobel, dubbed the “Supermax,” is Wisconsin’s highest
security prison. It is an all-segregation facility, designed
to house recalcitrant inmates. At the relevant time,
Supermax used a five-level system of inmate classification,
with level one being the most restrictive. Inmates, including
Gillis, were placed in level one upon their arrival at the
prison. In this most restrictive level, inmates are allowed
canteen items, hygiene products such as toothpaste, combs,
and denture cleaners, legal materials, personal mail,
religious items, clothing, and bedding. They are allowed
three showers a week.
  Gillis arrived at Supermax on February 15, 2002. Within
2 weeks of his arrival he was placed in the BMP for an
infraction of what he sees as a relatively minor rule. The
rule requires that inmates sleep with their heads toward
the back of the cell (and the toilet). Gillis slept with his
head toward the front of the cell and on occasion covered his
head. He says that the rule was not being uniformly
No. 06-2099                                                 3

enforced and that some inmates did not follow the rule
because it forced them to lie with their heads next to the
toilet. The defendants, various prison officers and agents,
see it differently. They argue that compliance with the
rule is necessary so guards can see an inmate’s head
through a small window on the cell door. If the guards
cannot see the head of the inmate, they cannot determine
his condition. Defendants also say that they began to
enforce the rule on February 22, 2002, which is about a
week before the BMP was imposed on Gillis. The toilets,
they say, are “perfectly clean,” so that cannot be the
reason inmates sleep with their heads in the wrong direc-
tion. The security director did not classify this violation as
a “major offense,” but defendant Bradley Hompe, a unit
supervisor, who was the moving force behind Gillis’s
placement, considered the violation to be major.
  Whether “major” or “minor,” it was for this infraction that
Gillis was placed in the BMP. The BMP is a program
designed to force difficult inmates to conform to the rules.
The memo Gillis received upon being placed in the program
is as follows:
    Stage One: You will be placed on stage one for a
    period of three days. All property will be removed from
    your cell during this time and you will receive nutri-loaf
    for meals.
    Stage Two: Upon completion of three days in stage
    one with appropriate behavior the Unit Manager
    may initiate stage two. Stage two will be in effect for 7
    days. In stage two your in cell property will be limited
    to a segregation smock. You will receive regular meals.
    In stage two you will receive hygiene items two times
    per day and will receive showers on regular shower
    days. Upon completion of day 7 in stage two with
    appropriate behavior, the Unit Manager may deactivate
    the plan.
    ** Any inappropriate behavior, as described above, will
4                                                No. 06-2099

    result in being placed on day one of stage one.
    ** Security restrictions may also alter this plan and will
    continue after deactivation of plan.
    ** This plan will be in effect for a period of six
    months and will be activated when you display inappro-
    priate behavior as explained above.
    ** The Unit Manager may modify this plan at any time.
 The warden’s office received a copy of the memo, and
Gillis’s placement in the BMP was approved by Deputy
Warden Peter Huibregtse.
  After successful completion of the 3 days at stage one,
Gillis would have been eligible to move to stage two, but
he was continued in stage one for 2 more days because of
his inappropriate behavior. He claims that appropriate
behavior would simply have been lying on his bed in
compliance with the rules. In his case, it appears that stage
one was continued because of very bad, but possibly unre-
lated behavior—smearing blood and feces around his cell.
The defendants say such behavior is related to the rule
because guards cannot see through a feces-covered window.
After 5 days, Gillis moved on to stage two, where he stayed
for 7 more days.
   In stage one, Gillis was deprived of nearly all human
contact and sensory stimuli. He had no property in his
cell and no privileges. He was stark naked and had no
mattress or other bedding. He slept naked on the concrete
floor or on the concrete slab that is the bed. He tried to
sleep next to a heat vent, but the air from the vent was cool.
He says he was so cold that he had to walk around his small
cell some 14 hours a day trying to stay warm. He claims he
developed sores on his feet from pacing and on his body
from sleeping on the concrete and that his request for soap
to clean his sores was denied. Defendants dispute that
Gillis had to walk to keep warm. They say the temperature
No. 06-2099                                                5

in the cell was always 70 degrees or above, apparently in
their view a temperature at which people sleep comfortably
without pajamas or bedding.
  Gillis was fed nutri-loaf—basically a ground-up block
of food. He was denied mail, visitors, phone privileges,
canteen items, writing materials, and use of the law library.
There is a dispute of fact over the amount of toilet paper he
received. He says he received it on only five occasions
during the entire time he was in the BMP, and then it was
four squares at a time. The defendants say he received
toilet paper on request.
  When he was placed in stage two, he was given what
is called a sleeveless “seg smock,” which is a one-piece
item of clothing much like a poncho which covers a person
from chest to below the groin. It is worn without underwear.
Gillis also began to receive regular meals in styrofoam
containers and a toothbrush and toothpaste, but no soap.
He was finally allowed to shower 9 days into his ordeal. He
was not given bedding or a mattress.
  The program had an adverse effect on Gillis’s mental
stability. He heard voices telling him that “these people
were trying to kill” him. He suffered panic attacks, with
palpitations, shortness of breath, and a feeling that he
was going to die. He became suicidal. He inflicted
wounds on his body and wrote the words “help me” in blood
on the walls of his cell. When a guard noticed the wounds
and called the health services unit, Gillis was transferred
to a different cell, where he further injured himself and
began smearing feces on his cell walls and on the window.
He was placed on clinical observation, but the conditions of
his confinement did not change.
  Gillis defines the BMP as a punitive measure unrelated
to the conduct the officials were trying to correct. In his
affidavit, Steve J. Martin, an independent consultant in
corrections, says that the “BMP provided officials carte
6                                                No. 06-2099

blanche to circumvent, in a wholesale fashion, the provi-
sions of Chapter DOC 303 [of the Wisconsin Administrative
Code] . . . .” The defendants, on the other hand, say the
BMP was not punitive; it was merely an attempt to con-
vince Gillis to conform his behavior to the rules.
  The Eighth Amendment prohibits cruel and unusual
punishment and applies to the states through the Due
Process Clause of the Fourteenth Amendment. Robinson v.
California, 370 U.S. 660 (1962). To prevail on his Eighth
Amendment claim, Gillis must show that the BMP imposed
conditions which denied him “the minimal civilized measure
of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981); see also Wilson v. Seiter, 501 U.S. 294 (1991). He
must also show that the defendants acted with a culpable
state of mind:
    [A] prison official may be held liable under the Eighth
    Amendment for denying humane conditions of con-
    finement only if he knows that inmates face a sub-
    stantial 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).
  To succeed on his Fourteenth Amendment Due Process
claim, Gillis must establish that he has a liberty interest in
not being placed in the BMP—as it was administered to
him—without procedural protections. It is undisputed that
he received no procedural due process, so the claim turns on
whether he can establish a liberty interest.
   Sandin v. Conner, 515 U.S. 472 (1995), established that
in evaluating whether a liberty interest exists, we must ask
whether the conditions impose an “atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life.” At 484. Prior to Sandin, we had assumed
that some conditions—while not constituting Eighth
Amendment violations—would nevertheless establish a
liberty interest. After Sandin, given the proliferation of
No. 06-2099                                                 7

supermax, 23-hour lockdown prisons, it appeared that
inmates would be hard-pressed to establish a liberty
interest if the conditions in the most restrictive prison in a
state, or perhaps in the nation, were to form the baseline
and were considered the “ordinary incidents of prison life.”
We contemplated this issue in Wagner v. Hanks, 128 F.3d
1173, 1174 (7th Cir. 1997). We thought it would be
    difficult (we do not say impossible) to make disciplinary
    segregation sufficiently more restrictive than the
    conditions of the general population of such a prison to
    count as an atypical and significant deprivation of
    liberty—that is, to count as a substantial incremental
    deprivation—without scraping up against the Eighth
    Amendment’s prohibition against cruel and unusual
    punishments.
In other words, how do prison officials make conditions in a
supermax prison worse than usual without violating the
Eighth Amendment?
  After Wagner was decided, the Supreme Court determined
in Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384 (2005),
that there can, in fact, be a liberty interest—short of an
Eighth Amendment violation—triggering procedural
requirements. The Court required the State of Ohio to
provide limited due process protections before inmates could
be transferred to its most restrictive prison. The Court
noted the difficulty in identifying the proper baseline
against which to measure conditions but said that assign-
ment to the prison “imposes an atypical and significant
hardship under any plausible baseline.” At 2394. Wilkinson
turns, however, not on denial of basic life necessities so
much as on the extension of incarceration. The determining
factors were that placement at the prison is of indefinite
duration and it disqualifies an otherwise eligible inmate
from consideration for parole. Wilkinson does not answer
the question as to when the denial of life’s necessities alone
8                                               No. 06-2099

could give rise to a liberty interest but still fall short of
violating the Eighth Amendment. There is, as we said in
Wagner, a “small space” between the two. In our case, we
must determine whether we are standing in that small
space or on either side of it. As we said, the district court
answered the question by granting summary judgment for
the defendants.
  Our review of a grant of summary judgment is de novo.
Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). Summary
judgment can be granted only if there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law. Federal Rule of Civil Procedure 56. We
must construe the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in
his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986).
  Determining whether Gillis’s constitutional rights have
been violated requires a “fact-intensive inquiry under
constitutional standards,” as in Chandler v. Baird, 926 F.2d
1057, 1064 (11th Cir. 1991), an Eighth Amendment case we
have discussed with approval. See Del Raine v. Williford, 32
F.3d 1024 (7th Cir. 1994). In Chandler, the inmate was
confined in a cell with no clothing except undershorts and
with a plastic-covered mattress without bedding. The
temperature in the cell was alleged to be as low as 60
degrees. The inmate contended that he sometimes slept
huddled with a roommate, sleeping between two mat-
tresses. The prison officials disagreed, saying that the cell
was controlled by the same thermostat that controlled areas
of the prison occupied by nurses and no one else complained
about the temperature. They acknowledged, however, that
the other people in these areas were fully clothed. The
inmate also received no toilet paper for 3 days. The Chan-
dler court vacated a grant of summary judgment for the
prison officials and sent the case back to the district court
for trial.
No. 06-2099                                                 9

  We now turn specifically to Gillis’s Eighth Amendment
claim. Under the amendment, life’s necessities include
shelter and heat, Dixon v. Godinez, 114 F.3d 640 (7th Cir.
1997), as well as hygiene items. See Del Raine. A lack of
heat, clothing, or sanitation can violate the Eighth Amend-
ment. See Lewis v. Lane, 816 F.2d 1165 (7th Cir. 1987) (an
allegation of inadequate heating may state an Eighth
Amendment violation); Ramos v. Lamm, 639 F.2d 559, 568
(10th Cir. 1980) (“[A] state must provide . . . reasonably
adequate ventilation, sanitation, bedding, hygienic ma-
terials, and utilities (i.e., hot and cold water, light, heat,
plumbing).”); Maxwell v. Mason, 668 F.2d 361, 365 (8th Cir.
1981) (confinement in isolation without adequate clothing
or bedding supports an Eighth Amendment claim: “clothing
is a ‘basic necessity of human existence’ ”). In McCray v.
Burrell, 516 F.2d 357 (4th Cir. 1975), an inmate was
confined 2 days in a cell where for part of the first night a
concrete slab was his bed. A mattress was furnished later
during that night, but no blankets were supplied. The
inmate was so cold he tore open the mattress and slept
inside it. He also was denied articles of personal hygiene.
The court found a violation of the Eighth Amendment. Some
conditions of confinement may establish an Eighth Amend-
ment violation in combination when each alone would not
do so. This is true when the deprivations have a mutually
enforcing effect which produces the deprivation of a single,
identifiable human need, such as food or warmth, for
example “a low cell temperature at night combined with a
failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294,
304 (1991).
  When we asked the defendants’ attorney at oral argument
what case provides the strongest support for the proposition
that the conditions of Gillis’s confinement did not violate
the Eighth Amendment, we were directed to Trammell v.
Keane, 338 F.3d 155 (2nd Cir. 2003). The case fails to carry
the day. In that case the issue was not whether the condi-
10                                               No. 06-2099

tions to which Trammell was subjected were sufficiently
serious to deny him life’s necessities, but rather his failure
to show that the authorities acted with deliberate indiffer-
ence. In addition, certain significant distinctions exist
between that case and Gillis’s. Trammell’s behavior was
significantly more uncontrollable. In a 5-week period he was
cited for 16 disciplinary violations. Gillis had only been at
Supermax for 2 weeks, and the rule he violated had only
been uniformly enforced for about one week, before he was
placed in the BMP. He had only one conduct report, and
that grew out of the same behavior giving rise to his
BMP—sleeping the wrong way on his bed. Furthermore,
Trammell was able to receive a blanket and mattress after
48 hours if he stopped his misbehavior. Gillis could not
regain his bedding while he was in the program, nor could
he make the BMP stop once it was activated. Trammell
never was denied all of his clothing. He was allowed one
pair of undershorts—which, while probably not significant
as to warmth, is significant as to dignity.
  What the cases show is that the principle on which Gillis
relies is well-established, and the inquiry as to whether
there is a violation is fact-specific. Because of competing
facts and inferences in this case, whether Gillis was
denied the “minimal civilized measure of life’s necessities”
cannot be determined on summary judgment.
  Summary judgment on the Eighth Amendment claim
might still be proper, however, if Gillis cannot show that
the defendants acted with disregard of the substantial
risk of serious harm to him. Our review, though, convinces
us that, on this issue as well, he must be allowed to proceed
to trial. Defendants contend that placing Gillis on clinical
observation shows that they did not disregard his safety.
But nothing much changed for Gillis during clinical obser-
vation. Also, there is some indication in the record that the
defendants saw the BMP in general as a way to deal with
inmates without regard to the requirements of Chapter
No. 06-2099                                                11

DOC 303 of the Wisconsin Administrative Code. The Code
outlines procedures to be used in placing inmates in
adjustment status and does not, as far as we can see, have
provisions for the sort of deprivation Gillis suffered. The
BMP was imposed basically on Hompe’s say-so, with the
knowledge of the warden and deputy warden.
  Gillis’s case is one in which the
    plaintiff is entitled to have the trier of fact determine
    whether the conditions of his administrative confine-
    ment, principally with regard to the cell temperature
    and the provision of hygiene items, violated the mini-
    mal standards required by the Eighth Amendment.
Del Raine, at 1034.
  We also note for the record that Gillis’s case is not a
situation analogous to civil contempt in that he holds the
keys to his own fate. In contrast to cases such as Rodriguez
v. Briley, 403 F.3d 952 (7th Cir. 2005), Freeman v. Berge,
441 F.3d 543 (7th Cir. 2006), or even, as we discussed
above, Trammell, Gillis did not hold the keys to his own
release. He may have held the keys to the final 2 days at
stage one of his BMP, but not to the entire period. In
contrast, Rodriguez could have corrected his situation
immediately. He missed many meals because he refused to
put his belongings in a storage box before leaving his cell to
go to the cafeteria. He could have gone to meals immedi-
ately had he complied. We said:
    [W]e think that deliberate noncompliance with a valid
    rule does not convert the consequences that flow
    automatically from that noncompliance into punish-
    ment. Rodriguez punished himself.
403 F.3d at 952-53. Freeman refused to comply with a rule
which required that inmates—who were in solitary confine-
ment and fed in their cells—must be standing in the middle
of their cells, with the lights on, wearing trousers or gym
12                                              No. 06-2099

shorts in order to get their food delivered. Freeman would
not put his pants on and so was denied food. We said,
“[T]here is a difference between using food deprivation as a
punishment and establishing a reasonable condition to the
receipt of food.” 441 F.3d at 545.
  The BMP is different. It is not simply a natural conse-
quence “automatically” growing out of a rule infraction. It
is much more elaborate. An inmate who refuses to put on
his trousers can correct his situation immediately by
putting them on. In contrast, defendants did not simply
take Gillis’s blanket away until he conformed with the rule.
Once he received notice that he was to be put in the BMP,
he had to complete the whole program; he couldn’t make it
stop. To say he could have avoided the program altogether
by not breaking the rules in the first place would be to
severely limit valid Eighth Amendment claims. One could
say that most punishments could be avoided by simply
following the rules. In a broader sense, no one would be in
prison if everyone simply followed the rules. Freeman and
Rodriguez are inapposite.
  The inevitable conclusion that Gillis’s due process claim
also survives summary judgment follows from our discus-
sion of his treatment under the BMP. Gillis may well be
able to convince a jury that the program imposes an
atypical and significant hardship even measured against
the ordinary incidents of life at Supermax, thus establishing
a liberty interest.
  Also, defendants have not shown that they are entitled to
qualified immunity. They cannot show that in 2002, when
these events occurred, it was not well-established that
denial of shelter, heat, and hygiene items implicated an
inmate’s constitutional rights.
  As always in conditions of confinement cases, we are
reluctant to interfere with the administration of the
prisons. See Mathews v. Eldridge, 424 U.S. 319 (1976);
No. 06-2099                                               13

Westefer v. Snyder, 422 F.3d 570 (7th Cir. 2005). But our
reluctance does not mean we can avoid our obligation to
carefully evaluate constitutional claims, such as this one. In
addition, we question how much this particular case will
affect the administration of the prisons. It is unclear what
exactly the status of the BMP program is at Supermax.
Gillis contends that the policy “is currently in ef-
fect. . . . Inmates continue to be denied a hearing prior to
placement on BMP.” Defendants, with notable ambiguity,
say that “[a]lthough the policy may still be in effect, the
BMP program is no longer used” at Supermax.
  The judgment of the district court is VACATED and this
case is REMANDED for further proceedings consistent
with this opinion.

A true Copy:
       Teste:

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




                   USCA-02-C-0072—11-14-06
