by David M. Reutter

Is it unconstitutional to deprive a mentally ill prisoner of exercise for three years? In Illinois, the answer is no, according to two of three judges on a panel for the U.S. Court of Appeals for the Seventh Circuit – a decision the full Court then declined to rehear en banc on August 25, 2022.

The former prisoner, Michael Johnson, began serving a sentence at Illinois State Prison in February 2007. Between 2009 and August 2016, he was transferred dozens of times as he racked up more than 70 conduct violations. The offenses included fighting, assaulting guards, making threats, causing intimidation, damaging property, throwing feces and urine at others, smearing feces on himself or his cell, impairing surveillance, disobeying direct orders and insolence.

Johnson was classified as seriously mentally ill. He was diagnosed with antisocial personality disorder, depression, bipolar disorder, poor impulse control, panic disorder, anxiety disorder, and severe scratching disorder. In March 2013, he was sent to Pontiac Correctional Center (PCC) to serve a lengthy accumulated period of disciplinary segregation resulting from consecutive penalties for his many conduct violations. He remained there until December 2016, when his request for placement in a mental health treatment facility were finally granted.

As a result of his conditions and treatment at PCC, Johnson filed suit pro se in federal court for the Central District of Illinois under 42 U.S.C. § 1983, “alleging inadequate mental health and medical care and … inhumane conditions of confinement,” as that court later recalled. On November 15, 2018, it granted Defendants summary judgment.

As to Johnson’s claim that he was forced to endure excessive heat, the district court said he failed to “identify any specific cell in which temperature became an issue.” As to feces he claimed fouled his cell, it said that he had not “provided any evidence regarding the duration of time he was exposed to such conditions, or identified any specific prison official responsible.” And as to his claim that he was denied yard exercise, the district court said that he “could still move around in his cell to a certain extent, and the outdoor recreational area was not that much bigger than his cell.”

Unsurprisingly, Johnson appealed.

At the Seventh Circuit, armed with new the legal representation and amici, “an extensive and sophisticated attack on solitary confinement generally” was mounted, as the Court noted in its ruling on March 31, 2022. But since that issue was not raised in the district court, it was summarily waived.

The Court then agreed with the district court that Johnson failed to detail how long or often he endured the allegedly harsh cell conditions. Moreover it said his mental health treatment reflected a mere disagreement in methods, not a constitutional violation. Thus, dismissal of those issues was affirmed.

The Court also affirmed dismissal of the yard-access claim. Johnson alleged that stacking 90-day revocation periods for a total of three years violated the Eighth Amendment. The majority of the panel’s judges said the issue was foreclosed by its ruling in Pearson v. Ramos, 237 F.3d 881 (7th Cir. 2001), which held that imposing consecutive 90-day periods of no-yard privileges was constitutional unless the sanctions were meted out for “some utterly trivial infraction of the prison’s disciplinary rules.” Johnson did not argue, nor could he show, that his conduct was trivial, the Court said.

In dissent, Judge Llana D. Rovner agreed with the majority in all respects except the loss of yard privileges. Johnson, she said, was denied “virtually all access to exercise” while held in segregation for three years. “The result was a deteriorating mental state that virtually ensured further rule violations, creating a self-perpetuating cycle.” She also noted that, unlike the facts in Pearson, none of Johnson’s misconduct was related to yard activity, and the Defendants asserted no security concerns to justify yard restrictions.

“[A]ccess to exercise is not a perquisite or privilege to be used as a sword to ensure compliance with any institutional rule,” the judge said. “It is an essential human need, and Johnson's challenge to those conditions should have survived summary judgment.”

On appeal, Johnson was represented by Chicago attorneys Daniel Greenfield and Elizabeth Mazur, of the Roderick & Solange Macarthur Justice Center and the West Town Community Law Office, respectively. See: Johnson v. Prentice, 29 F.4th 895 (7th Cir. 2022).

On Johnson’s petition for rehearing en banc, five of the Court’s judges voted for it and the other five voted against it, so the petition died on the tie vote. See: Johnson v. Prentice, 47 F.4th 529 (7th Cir. 2022).

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