CURTIS L. DALE, Plaintiff-Appellant, v. PAMELA POSTON et al., Defendants-Appellees.
No. 06-2847
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 19, 2008—DECIDED NOVEMBER 21, 2008
Before POSNER, RIPPLE, and EVANS, Circuit Judges.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 02 C 143—Sarah Evans Barker, Judge.
Dale appealed, and we reversed and remanded the case for further proceedings finding that “the defendants did not meet their burden of establishing the absence of disputed issues of material fact concerning [the exhaustion] question.” Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
On remand, a jury trial was held to determine whether the defendants had proven by a preponderance of the evidence that Dale had failed to exhaust his administrative remedies. The jury determined that the defendants had not met their burden. Accordingly, the case proceeded on to the merits of Dale‘s claims. In 2006, the district court granted the defendants’ motion for summary judgment. Today, we resolve Dale‘s appeal from that judgment.
Usually, we begin our discussion in a case like this by repeating the oft-stated rule that we review the facts in the light most favorable to the nonmoving party. In this case, however, the facts as we will soon go on to state them come from the government because the district court
Dale was serving time at the high-level security penitentiary at Terre Haute, Indiana, after he pleaded guilty to drug charges in 1998. As part of a plea agreement, Dale agreed to cooperate with the government and provide testimony against persons involved in the drug trade. Terre Haute, home to the only death row in the federal system, is not known for its hospitality. For “snitches” it is even worse.
Things went okay for Dale at first. When he started leaving the prison on writs of habeas corpus ad testificandum, they got a little testy. After providing testimony against several individuals, Dale returned to Terre Haute on October 21, 1999. Pursuant to Bureau of Prison (BOP) policy, he was placed in the Special Housing Unit (SHU) pending a review of his return circumstances. BOP policy requires a temporary stay in the SHU, a unit that isolates prisoners from one another, whenever an inmate returns from a writ due to the potential dangers arising from cooperation. The SHU provides inmates “the highest form of personal protection” available at Terre Haute, and inmates can always request “lock up” (a.k.a. “protective custody“) in the SHU if they fear for their safety. If an inmate requests protective custody he is housed in the SHU until an investigation can be completed. The record is not entirely clear on this point, but it appears that prison officials will not remove an
After a routine evaluation in which Dale expressed no concerns for his safety, he was placed in the general population “E Unit.” It was then that his troubles started. One of the individuals against whom Dale testified, Sean Lewis, also lived in the E Unit. Though Dale said nothing at the time, he would later testify that he was having problems with Lewis, as well as with certain members of the “Muslim community.” But as far as prison authorities knew, Dale served his time from mid-October 1999 to mid-January 2000 without incident.
Dale left Terre Haute on another writ on January 19, 2000, and returned three months later on April 19. He was placed in the SHU when he returned and went through the usual intake screening to determine if there were “special issues or needs which require[d] housing or services other than [those] offered in the general population.” Defendant Lynn Fortune conducted the screening, at which time Dale first reported his past troubles with the Muslim community in general and one inmate in particular. Dale told Fortune he was assisting law enforcement officials and had testified in court, and he thought this was the source of the trouble. However, Dale didn‘t mention anyone by name—he identified Sean Lewis only several years later—and he did not give any details. Dale
Defendant Pamela Poston then met with Dale in the SHU on April 25. Poston was Dale‘s case manager at the time, but she, too, lacked transfer power. In fact, she did not even have the authority to initiate a transfer request; that was the sole province of the unit manager, at that time a man named James Cross. Before she met with Dale, Poston was aware that he might be facing some problems. Poston was copied to an e-mail on April 18 from Robert Glancy, regional designator at the Mid-Atlantic Regional Office, stating as much. Glancy reported that a federal
As was his habit, Dale was vague with Poston, saying that “they” were “pressuring” him and “asking questions,” without explaining who “they” were or what exactly they said. Despite Poston‘s request for more information, Dale kept quiet and just reiterated his desire for a transfer to Pekin. Poston told Dale that the regional office was responsible for his security designation and that a transfer would have to be approved by personnel in that office. In the meantime, Poston informed Dale that “if he was in fear [for] his personal safety, or in danger of an assault or attack, . . . we could [keep] him in the SHU and begin a protective custody investigation.” Dale declined. Whenever Poston made this suggestion, Dale always responded with remarks like “it‘s OK” and “I don‘t want to go out like that.” Poston was sympathetic to Dale‘s hopes for a transfer, so she told him a move was possible if Dale could “verify that he could not live safely in the general population” at Terre Haute. Again, Dale failed to extrapolate on his fears, so no transfer request was initiated. Indeed, Dale did not even tell Poston that he had been labeled a snitch. And it is undisputed that, absent a verifiable threat, Dale‘s “custody classification score” required him to be at a maximum-security facility like Terre Haute.
Although Dale didn‘t want to stay in the SHU, he remained there for three weeks due to the nature of the process—the reentry evaluation is involved and a bed has to be located in general population. But even then Dale was not placed in general population, as he left on another writ on May 10.
While Dale was out, the same AUSA who had called Glancy wrote a letter to the warden on May 17, informing the warden that Dale might be under threat from other inmates. A different AUSA said the same thing months later on September 11, just days before the attack. The
Dale returned to Terre Haute three months later, on August 9, 2000. Per normal procedure, he was placed in the SHU for intake screening, where defendant Phyllis King conducted the interview. Dale told King he had been to court six times since May 1998 and inmates were “asking questions.” He therefore asked King for a transfer to a different facility. Again, though, Dale didn‘t name any names, he didn‘t say that his life was in danger, and he ended by saying he would go into Terre Haute‘s general population “if you make me.” As an intake officer, King lacked authority to transfer a prisoner; in line with standard policy, she designated Dale for housing in the SHU pending a team review of his return circumstances.
On August 11, Poston met with Dale a second time. Dale renewed his request for a transfer but again stonewalled Poston‘s demand for more information. Apparently, Dale thought his allegations of “pressure” and “questions” were enough. They were not. Dale was released into general population on August 15, 2000, when the housing committee determined that there was no reason for him to remain in lock up.
Shortly after he returned to Unit E, Dale approached inmates Omar and Wahdu, two “Muslim elders.” Hoping to absolve himself of the snitch label and win favor with the Muslims, Dale told them he came back to general population because “nobody went to trial.” In truth, Dale
Shawn Sykes, not named as a defendant in this action, was Dale‘s unit manager for most of this saga. He was the one with the authority to initiate a transfer request, and he also supervised the other members of the unit team, including King, White, and Poston. (Sykes was not in charge of Fortune when she interviewed Dale because he did not become unit manager until July 2000.) Skyes saw no reason to transfer Dale to Pekin because (1) there was no verifiable information that Dale faced a threat; and (2) Dale‘s circumstances warranted incarceration at a high-security prison. However, Sykes did not know about the e-mail from Glancy or the two letters sent by AUSAs to the warden. Had Sykes known of these materials, he might have recommended a transfer.
In the meantime, while Dale privately feared retaliation from Lewis, trouble arose with a different inmate, Parish Barnes. Barnes, also a member of the Muslim group, was the man with whom Dale should have been concerned—he
Things came to a head on September 22. Barnes approached Dale in the yard as he was working out and talking to another inmate, a man named Pieto. Barnes told Pieto that he “shouldn‘t be talking to that hot MF,”2 and “if it was up to me he wouldn‘t be here.” Pieto grabbed Barnes by the arm and told him to let it go. Barnes cooperated, but he warned Dale that he would “see [him] in the unit.” Dale responded in kind, and Barnes walked away with Pieto. Though the situation appeared to be defused, it was not. Barnes came back a few moments later and said, “let me talk to you.” As they walked along, Barnes stabbed Dale seven times with a knife.3
Judges, of course, must construe pro se pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). But procedural rules cannot be ignored. Here, after Dale prevailed on a jury trial on the issue of exhaustion, the parties conducted discovery and the defendants filed a motion
We review a decision granting summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party. Walker v. Sheahan, 526 F.3d 973, 976 (7th Cir. 2008). Summary judgment is proper if “there is no genuine issue as to any material fact,” such that “the movant is entitled to judgment as a matter of
Dale‘s claim rests on the Eighth Amendment. “Because officials have taken away virtually all of a prisoner‘s ability to protect himself, the Constitution imposes on officials the duty to protect those in their charge from harm from other prisoners.” Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001). Yet, a prison official does not violate the Eighth Amendment every time an inmate gets attacked by another inmate. Prisons, after all, are dangerous places often full of people who have demonstrated aggression. And so, an inmate has no claim “unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The deliberate indifference test therefore has both objective and subjective prongs, the former requiring a grave risk and the latter requiring actual knowledge of that risk. See Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Once prison officials know about a serious risk of harm, they have an obligation “to take reasonable measures to abate it.” Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006). Of course, an official‘s response may be reasonable even if it fails to avert the harm. Id.
Another way to think of it: picture an inmate with a cobra in his cell. If the prison officials “know that there
We agree with the district court that the defendants in this case are entitled to summary judgment. As it turned out, there was a cobra lurking in the grass; the objective prong is satisfied. But that‘s not dispositive. The focus is on the defendants’ subjective state of mind, and for all they knew, Dale was being harassed by a garter snake. Irritating, yes. Deadly, no. Dale‘s vague statements that inmates were “pressuring” him and “asking questions” were simply inadequate to alert the officers to the fact that there was a true threat at play. See Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (holding that an inmate who “told jail officials only that he was afraid and that he wanted to be moved” failed to put those officials on notice of an actionable threat). There is no evidence that any of the defendants here were aware
Dale asks us to find deliberate indifference due to the inherent risks faced by snitches in prison; he would have Eighth Amendment liability every time an inmate known to be cooperating with authorities is attacked. That would be quite a stretch. Just because a correctional officer knows an inmate has been branded a snitch—and it‘s common knowledge that snitches face unique risks in prison—does not mean that an officer violates the Constitution if the inmate gets attacked. Cf. id. at 775-76 (suggesting that officer knowledge of a snitch reputation may support, not prove, a claim for deliberate indifference). Each case must be examined individually, with particular focus on what the officer knew and how he responded. Poston, Fortune, King, and White all listened when Dale expressed fear for his safety; they all implored him for details; and they all offered to start a protective custody investigation with detention in the SHU in the meantime. Dale had multiple opportunities to take them up on their offer, but he declined.
Dale argues that he refused protective custody because it would have been a sure signal that he was cooperating with authorities. Probably so. See James E. Robertson, A Clean Heart and An Empty Head: The Supreme Court and Sexual Terrorism in Prison, 81 N.C. L. Rev. 433, 459 (2003) (prisoners “assume [inmates in protective custody] are snitches“); David K. v. Lane, 839 F.2d 1265, 1267 (7th Cir. 1988) (“An inmate may request a transfer
But Dale says the defendants did not respond reasonably because a reasonable response would have been a transfer. In making this argument, Dale places a lot of weight on the testimony of Sykes, the unit manager at the time of the attack. Sykes testified that, had he known about the prosecutors’ concerns, he may have drafted a transfer request for the warden‘s signature. But just because one official would have responded differently—in this case by advocating for a transfer—does not mean the other officials responded unreasonably. It was quite natural to assume that, had Dale‘s situation in general population been so dire as to warrant a transfer, he would have taken advantage of protective custody. At the very least, he should have spoken up when Poston and the others pressed him for specifics. Moreover, Dale wasn‘t looking for just any transfer—for him, it was only Pekin. Pekin has a lower security rating than Terre Haute, so that was another reason for the defendants to hesitate when Dale requested a transfer. And for all that, they did not dismiss Dale‘s request out of hand—they
The fact that federal prosecutors and the regional BOP director were concerned for Dale‘s safety changes nothing. Acting on a prosecutor‘s advice, the regional director instructed Terre Haute personnel to perform a thorough intake screening to evaluate potential risks to Dale. Poston and the others followed these instructions, giving Dale the option of protective custody and begging him for details so they could determine whether a transfer was appropriate. That is not deliberate indifference; it is almost the opposite. What more should they have done? Segregate Dale against his will? We will not create this sort of constitutional Catch 22—where prison officials violate the Eighth Amendment if they don‘t segregate a prisoner but violate the Due Process Clause if they do. See Hewitt v. Helms, 459 U.S. 460, 472 (1983) (holding that moving a prisoner from general population to administrative segregation is a deprivation of liberty that must be accompanied by due process of law).
Dale cites scholarly materials to show that informants occupy the lowest rung in the prison hierarchy. See, e.g., Robertson at 461 (“The inmate code condemns snitching. Indeed, as an act of betrayal, it merits assault, sodomy, and even murder.“). We do not doubt that. Nor do we doubt that protective custody is often necessary to
The judgment of the district court is AFFIRMED.
11-21-08