GEORGE W. PICKETT, ET. AL., PETITIONERS V. EDWARD JOSEPH X. CHAPMAN

   No. 87-28

   In the Supreme Court of the United States

   October Term, 1987

   The Solicitor General, on behalf of George W. Pickett, Fred Frey,
Earl Buzzard, Jack Culley, J. E. Brown, and Eugene M. Cage, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Seventh Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Seventh Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties named in the caption, Fred Frey, Earl
Buzzard, Jack Culley, J. E. Brown, and Eugene M. Cage are defendants
in the district court and are petitioners in this Court.

         TABLE OF CONTENTS
   Parties to the proceeding
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-33a) is
reported at 801 F.2d 912.  Two prior opinions of the court of appeals
(App., infra, 45a-59a, 60a-72a) are reported at 586 F.2d 22 and 507
F.2d 1246 respectively.  Two prior judgment orders issued by the court
of appeals (App., infra, 34a-39a, 40a-44a) are unreported.  The
opinion of the district court (App., infra, 73a-84a) is unreported.
One prior opinion of the district court (App., infra, 89a-105a) is
reported at 491 F. Supp. 967.  Two other prior opinions of the
district court (App., infra, 85a-88a, 106a-124a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 125a-126a) was
entered on September 15, 1986.  A petition for rehearing was denied on
February 5, 1987 (App., infra, 127a-128a).  On April 27, 1987, Justice
Stevens entered an order extending the time within which to file a
petition for a writ of certiorari to and including June 5, 1987;  on
May 28, 1987, Justice Stevens entered an order further extending the
time within which to file a certiorari petition to and including July
3, 1987.  The jurisdiction of this Court rests upon 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioners' immunity from monetary liability under Harlow
v. Fitzgerald, 457 U.S. 800 (1982), may be defeated by a showing that
the general legal standard governing their conduct had been announced
at the time of the relevant events, or whether their immunity may be
overcome only if petitioners reasonably could have known that their
actions violated that general legal principle.

                               STATEMENT

   1. In October 1972, respondent was incarcerated in the federal
penitentiary in Marion, Illinois, in connection with his conviction
for armed robbery.  On October 9, respondent was assigned to the
prison kitchen detail and was instructed by his supervisor --
petitioner J. E. Brown -- to clean the food trays.  The food trays
contained pork.  Respondent, whose religious faith forbids the
handling of pork, refused to perform his work assignment.  Brown
informed respondent that he would be subject to disciplinary action if
he did not perform the work assignment.  Respondent refused and told
Brown that his God "had once before punished a correctional officer
who had ordered him to handle pork in contravention of his religious
beliefs, by blowing him out of an oven at the Leavenworth Federal
Penitentiary." App., infra, 109a;  see also id. at 2a, 46a-47a.  /1/

   Brown subsequently filed an incident report charging respondent
with "violating prison code 303, 'Failing to perform work as
instructed by a supervisor'" (App., infra, 2a-3a, 47a, 109a).  On
October 11, the prison Adjustment Committee, which included
petitioners Jack Culley, Earl Buzzard, and E. M. Cage, met to consider
Brown's report.  Respondent admitted the facts alleged in the report
and explained that his religion barred him from handling or serving
pork.  The committee decided to place respondent in segregation.
Respondent's status was considered at several subsequent meetings, and
he was returned to the general prison population on July 25, 1973,
after spending 289 days in segregation.  App., infra, 3a, 47a-48a,
110a-111a.  /2/

   2. In April 1973, respondent commenced this action against
petitioners -- six federal officials holding various positions at the
Marion facility.  Respondent sought an order directing his release
from segregation, other declaratory and injunctive relief, and money
damages from petitioners in their personal capacities for alleged
violations of his constitutional rights.  In particular, respondent
asserted that petitioners had violated his rights under the Religion
Clauses of the First Amendment, his right to procedural due process,
and his Eighth Amendment right to be free of cruel and unusual
punishment.  The district court held a hearing at which respondent
appeared pro se.  The court subsequently entered judgment for
petitioners, holding that respondent had failed to prove the
allegations in his complaint and that his claim for injunctive relief
was moot because he had been released from segregation.  App., infra,
61a-62a.

   The court of appeals reversed in part (App., infra, 60a-72a).  It
upheld the district court's determination that respondent's claim for
an order directing his release was moot, and it concluded that
petitioners were entitled to judgment on respondent's due process
claim.  With respect to the First and Eighth Amendment claims,
however, the court of appeals held that the district court had erred
by prematurely terminating respondent's evidentiary presentation.  The
court therefore remanded the case to the district court for further
consideration of those claims.

   Following a trial, the district court entered a declaratory
judgment stating that respondent's confinement in segregation violated
the Eighth Amendment;  the court denied all of respondent's other
claims for relief (App., infra, 106a-124a).  The court of appeals
again reversed in part (id. at 45a-59a).  The court of appeals first
held that petitioners were entitled to immunity from damages liability
on respondent's First Amendment claim because "the specific right at
issue here -- that of a prisoner to refuse an order requiring him to
handle foodstuffs forbidden by his religion -- was not 'clearly
established' in October 1972" (id. at 51a).  /3/

   Turning to respondent's Eighth Amendment claim, the court of
appeals observed that "'punishment which is disproportionate to the
offense committed constitutes cruel and unusual punishment, whether
imposed without or within prison walls'" (App., infra, 56a, quoting
Adams v. Carlson, 488 F.2d 619, 635-636 (7th Cir. 1973)).  The court
found that "(a)t the very least, the period of confinement for+ nearly
seven months from October 11, 1972 to May 5, 1973 was manifestly
disproportionate to the offense of failing to perform work as
instructed," especially in view of the religious reasons underlying
plaintiff's refusal to perform the work (App., infra, 56a (emphasis in
original)).  The court of appeals held that the district court had
erred by concluding that the Eighth Amendment violation could not
support an award of damages.  It directed the district court to
determine the extent to which respondent's confinement violated the
Eighth Amendment and to calculate the damages to which respondent was
entitled for that Eighth Amendment violation.  Id. at 57a-58a.

   The court of appeals further held that petitioners were not
entitled to immunity from damages liability on the Eighth Amendment
claim (App., infra, 58a-59a (footnote ommitted)):

         There can be no serious contention with the fact that the
      right to be free from disproportionate punishment has long been
      "clearly established." At least as early as 1910, the Supreme
      Court declared it to be "a precept of justice" that punishment
      for crime must be proportioned to the offense, lest it be found
      to be cruel and unusual.  Weems v. United States, 217 U.S. 349,
      367 * * * (1910).  This being so, the question becomes one of
      whether (petitioners) "knew or should have known" that their
      confinement of (respondent) to segregation was or became grossly
      disproportionate to the offense with which he had been charged.
      But this question almost answers itself, for if a point in time
      can be determined when the punishment became so seriously
      disproportionate as to violate the Eighth Amendment, at that
      time point (petitioners) "should have known" that the punishment
      was grossly excessive.

   On remand, the district court stated that this Court's intervening
decision in Rummel v. Estelle, 445 U.S. 263 (1980), "collide(d) with
the mandates of (the court of appeals) and requires a total
reconsideration of the Eighth Amendment issue in this case" (App.,
infra, 101a).  /4/ The District court held "(i)n light of Rummel" that
respondent's "length of stay in segregation did not work a violation
of his rights under the Eighth Amendment to be free from cruel and
unusual punishment" (id. at 105a).

   The court of appeals again reversed the district court (App.,
infra, 40a-44a).  It held that Rummel "limited judicial inquiry into
whether statutorily prescribed punishments are proportionate to the
offenses to which they are attached," but that "Rummel does not apply
to the administratively prescribed punishment involved here" (App.,
infra, 44a).  The court of appeals again directed the district court
to award damages on respondent's Eighth Amendment claim.  /5/

   In considering the question of the amount of damages, the district
court stated that "(a) determination of when (respondent's) punishment
became disproportionate essentially requires this Court to sit as the
adjustment committee hearing the refusal to work charges" (App.,
infra, 77a).  After weighing the evidence that was before the
adjustment committee, the district court held that respondent's
confinement in segregation "became disproportionate after seven days"
(id. at 78a).  It awarded compensatory damages in the amount of $7,000
for the time respondent was confined in segregation, declined to award
any punitive damages, and held that all petitioners other than
petitioner Brown were personally liable for the damages awarded to
respondent (id. at 82a, 84a).

   3. The court of appeals affirmed by a divided vote (App., infra,
1a-33a).  The majority concluded that respondent had suffered actual
damage, that the amount of damages awarded was within the district
court's discretion, that the district court did not err by declining
to award punitive damages, and that petitioners each could be held
personally liable for the injury to plaintiff.  See id. at 6a-14a.
The court of appeals rejected petitioners' claim of qualified immunity
on the prior appeal, and stated that it "d(id) not believe that Harlow
changes the 1978 result" (App., infra, 11a n.4).

   Judge Easterbrook dissented (App., infra, 15a-33a).  He first
concluded that petitioners' actions did not violate the Eighth
Amendment (id. at 18a-24a).  He then stated that even if respondent's
constitutional rights had been violated, petitioners were entitled to
immunity from monetary liability.  Judge Easterbrook stated that
"(u)ntil the constitutional right has been stated so that reasonably
competent officers would agree on its application to a given set of
facts, it has not been 'clearly established' for purposes of Harlow"
(id. at 25a).  Because "(o)fficers of 'reasonable competence could
disagree' about the propriety of (petitioners') conduct in 1973,"
Judge Easterbrook concluded that petitioners should have been found to
be immune from monetary liability (id. at 27a (citation omitted)).

   Petitioners filed a petition for rehearing and a suggestion for
rehearing en banc.  Both the petition and the suggestion were denied,
with Judges Posner, Coffey, Flaum, and Easterbrook voting to grant
rehearing en banc.  See App., infra, 127a-128a.

                   REASONS FOR GRANTING THE PETITION

   This Court held in Harlow v. Fitzgerald, 457 U.S. 800 (1982), that
a government official's entitlement to immunity from personal
liability in an action seeking damages for alleged violations of the
Constitution turns upon the objective reasonableness of the official's
actions.  An official may be deprived of his immunity only if he is
found to have violated legal rules that were "clearly established" at
the time of the challenged conduct (457 U.S. at 818-819).  As the
Court observed in Harlow (457 U.S. at 819 (footnote and citation
omitted)),

         (w)here an official could be expected to know that certain
      conduct would violate statutory or constitutional rights, he
      should be made to hesitate;  and a person who suffers injury
      caused by such conduct may have a cause of action.  But where an
      official's duties legitimately require action in which clearly
      established rights are not implicated, the public interest may
      be better served by action taken "with independence and without
      fear of consequences."

   In its recent decision in Anderson v. Creighton, No. 85-1520 (June
25, 1987), this Court considered "the level of generality at which the
relevant 'legal rule' is to be identified" for purposes of applying
the Harlow standard (slip op. 3).  The Court observed that "the right
to due process of law is quite clearly established by the Due Process
Clause, and thus there is a sense in which any action that violates
that Clause (no matter how unclear it may be that the particular
action is a violation) violates a clearly established right.  Much the
same could be said of any other constitutional or statutory violation"
(id. at 3-4).  But "if the test of 'clearly established law' were to
be applied at this level of generality," the Court stated, "it would
bear no relationship to the 'objective legal reasonableness' that is
the touchstone of Harlow" (slip op. 4).  The court concluded that in
order for a right to be clearly established within the meaning of
Harlow, "(t)he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates
that right.  This is not to say that an official action is protected
by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the light of
preexisting law the unlawfulness must be apparent" (id. at 4-5
(citations omitted)). 64 The court below failed to apply that standard
in the present case.  Its conclusion that petitioners are not entitled
to immunity rests solely on the determination that an abstract legal
principle -- the bar against disproportionate punishment -- had been
established at the time of the challenged action.  Thus, the court
stated (App., infra, 10a-11a n.4, 58a-59a) that respondent's right to
be free of disproportionate punishment was clearly established because
this Court in Weems v. United States, 217 U.S. 349, 367 (1910),
indicated that the punishment for a crime must be proportional to the
offense.  As Judge Easterbrook discussed in detail in his dissenting
opinion (App., infra, 24a-27a), the court of appeals simply did not
consider whether Weems' general discussion of proportional punishment
was by itself sufficient to inform a reasonable official in the
situation faced by petitioners "that what (petitioners were) doing
violate(d) that right" (Anderson, slip op. 4-5).  /6/ Accordingly, the
judgment of the court of appeals should be vacated and the case
remanded to allow the court of appeals to conduct the proper immunity
inquiry.  /7/

                              CONCLUSION

   The petition for a writ of certiorari should be granted, the
judgment of the court of appeals vacated, and the case remanded for
further consideration in light of this Court's decision in Anderson v.
Creighton, supra.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JULY 1987

   /1/ It was subsequently determined that respondent was not involved
in the Leavenworth incident.  App., infra, 2a, n.1, 109a.

   /2/ Respondent at one point wrote to petitioner George W. Pickett,
the prison warden, requesting his release from segregation and a
statement of the reasons for his confinement;  respondent did not
receive a reply.  On March 15, 1973, Pickett received a copy of a
letter written by the Director of the Federal Bureau of Prisons
indicating that prisoners should not be assigned to handle pork if
that task conflicted with their religious beliefs.  App., infra, 3a,
47a-48a, 111a.

   The court of appeals observed (App., infra, 3a-4a) that

         (w)hile in segregation, Chapman had no socical contact with
      other inmates.  Many of his religious materials were confiscated
      and he had no opportunity to attend religious services.  While
      prisoners in the general population were allowed out of their
      cells up to 12 hours a day, Chapman was only allowed out for
      exercise a few times each week and then only for 15 to 30 minute
      intervals.  He was unable to bathe as frequently as those in the
      general population, was unable to request food that complied
      with his religious dietary restrictions, and received no
      vocational training.

   /3/ The court of appeals directed the district court to consider
respondent's entitlement under the First Amendment to expungement of
the record of his punishment, and it found that respondent's other
claims for injunctive and declaratory relief were moot (App., infra,
52a-54a).  The district court subsequently ordered expungement of the
punishment from respondent's records (id. at 95a-100a).

   /4/ The case had been assigned to a different district judge on
remand.

   /5/ On remand from that judgment, the district court entered an
order dismissing respondent's Eighth Amendment claim on the ground
that respondent's punishment could not be disproportionate in
violation of the Eighth Amendment, because the punishment had been
found to be unlawful under the First Amendment, but petitioners had
been found to have immunity with respect to respondent's First
Amendment claim (App., infra, 85a-87a).  (The case was again assigned
to a different district judge on remand.) The court of appeals again
reversed and again directed the district court to award damages on
respondent's Eighth Amendment claim (id. at 34a-39a).

   /6/ The court of appeals cited two other cases in support of its
rejection of petitioners' immunity defense.  The first case, Adams v.
Carlson, 488 F.2d 619 (7th Cir. 1973), was not decided until after
respondent was released from segregation.  It therefore provides no
basis for concluding that respondent's Eighth Amendment right was
clearly established prior to that time.  The second case, Bryant v.
Harris, 465 F.2d 365 (7th Cir. 1972), did not address the merits of
any constitutional claim;  it simply vacated the district court's sua
sponte dismissals of several habeas corpus petitions and remanded the
actions for further proceedings.  In the absence of any ruling on the
merits, Bryant obviously cannot be the basis for a clarification of
any constitutional right.

   /7/ In our view, examination of the relevant case law makes clear
that petitioners could not have known that their conduct violated the
Eighth Amendment.  As Judge Easterbrook observed in his dissenting
opinion, "(t)he answer to the question 'was it clearly established in
1973 that the eighth amendment forbids "excessive" administrative
punishments' is No" (App., infra, 27a).  Solem v. Helm, 463 U.S. 277
(1983), was the first case in which this Court held a criminal
sentence invalid on the gound that it was too long;  prior decisions
rejected claims that the Eighth Amendment closely limited a sentencing
authority's discretion.  See, e.g., Hutto v. Davis, 454 U.S. 370
(1982);  Rummel v. Estelle, 445 U.S. 263 (1980).

   Moreover, as Judge Easterbrook noted, this Court "has not extended
the principle of Solem to intra-prison sanctions, and Solem itself
suggests that only outrageous punishments (life in prison for
shoplifting) violate the eighth amendment.  No court to this day has
held that nine months in prison is cruel and unusual punishment for
anything, even jaywalking.  * * * And because (respondent) was not
sent to prison for refusing to handle pork, but was just moved to a
new cell in prison, the analogy to other cases under the eighth
amendment is even wealker" (App., infra, 28a-29a (emphasis in
original)).  For these reasons, the court of appeals erred by
concluding that petitioners were not entitled to immunity.

   Appendix