*1 concurrent or consec- impose discretion to underlying the state the conduct cause 5G1.3(c) (2000). § in deter- relevant conduct sentences under utive sentence The district sentence. mining the federal Fourth, appealed had the dis Collier if did not request. Collier denied court request denial of his for trict court’s appeal. There- on direct raise the issue credit, would have the contention sentence un- § 2255 relief fore, may not obtain he contrary rejected appeal on direct as been prejudice ex- can show cause less he 3585(b) § as construed to 18 U.S.C. See United procedural this default. cusing Wilson, 329, 112 States v. United (8th Wilson, 429, 481 v. States (1992). 1351, 117L.Ed.2d 593 S.Ct. Cir.1993). showing. has made no such He district court is judgment Second, argues for a now Collier affirmed. undis with “the concurrent sentence un Kansas sentence term” of the charged 5G1.3(b). sentencing both § But at
der court for he asked the district hearings, credit, concurrent sen not for sentence tences, he advised the no doubt because NORMAN, Appellee, James E. only hearing that he had at the first court v. on the more month to serve one Kansas defense coun hearing, At that sentence. SCHUETZLE; Schwehr; Marc Tim court, “I’m not explicitly advised sel Mary Materi, Appellants. with the concurrent sentence asking for Norman, Appellee, E. James just asking for credit I’m state sentence. Thus, the concurrent for time served.” v. waived. issue was sentence Wrolstad, Appellant. Dan Third, concurrent sen- Collier’s 08-1686, 08-2219. Nos. merits. He fails on the argument tences 5G1.3(b) Guidelines, Appeals, § of the 2000 relies on United States Court impose court to a federal required which Eighth Circuit. if conduct only concurrent sentence 13, 2009. Submitted: Feb. undischarged sentence
underlying Filed: Nov. 2009. into account the determina- “fully taken for the instant the offense level tion of Rehearing En Banc Rehearing and 5G1.3(b) (2000). § offense.” U.S.S.G. 7, 2010.* Denied Jan. underlying concedes the conduct Collier fully not taken Kansas sentence was his federal determining into account that the 2000 version argues He
sentence. 5G1.3(b) applied § because nonetheless qualified have as rele- that conduct could rejected this squarely vant conduct. We Schafer, States contention United Cir.2005). Thus, 789, 791-92 F.3d sen- requested had concurrent Collier tences, would have had the district court
* rehearing in No. 08-2219. petition en banc grant Judge Murphy would
HANSEN, Judge. Circuit inmate, attack
Following an a fellow appellee James and an in- mate at the North Dakota Peniten- State (NDSP), § tiary filed a U.S.C. claim against various officials for alleged their failure to him in viola- tion of the Amendment. The dis- qualified immunity trict court granted *4 officials, all but four of the who then interlocutory filed these consolidated ap- peals from denial the of their motions for immunity. qualified We reverse and re- entry summary mand for judgment qualified based on immunity favor of each of appellants.
I. In the interlocutory context of an appeal qualified from the denial of immunity, we light construe the evidence in the most Norman, favorable nonmoving par- to ty. Fortner, See Brown (8th Cir.2008). Norman was assaulted September inmate Michael on 22, 2005, while the two in the were traffic hallway of the NDSP before breakfast. Meyers approached Norman from behind as Norman came out of the showers and him, hit knocking him to ground. He hitting continued and him until kicking guard intervened. Norman received a cut stitches, eye above his requiring a broken nose, abrasions, numerous and a concus- sion.
We turn to now the events that occurred prior to the assault that form the basis for Norman’s claim that officials knew of a that substantial risk Norman Peterson, AAG, George William argued, Early would be assaulted. Nor- Bismarck, ND, appellant. (or man filed prison griev- several “kites” ances) Sanderson, Reginald argued, Wrolstad, Paul against Appellant Bis- Dan ND, marck, for appellee. Education, the NDSP’s Director of who
supervised a restaurant management class WOLLMAN, HANSEN, Before at prison. Norman charged Wrol- BYE, Judges. operated Circuit stad the restaurant program ille- (Id) doing Stromme turned the kite get fired. The it.” sought to him gaily Coad, Deputy to an NDSP an inmate cookout be over to Bob kites related to Warden, class management supervisor. the restaurant who was Wrolstаd’s held May as well as use investigated complaint by Wrolstad’s dis- Coad program. Wrolstad, funds within grant cussing provided with who Tim Appellant a kite to Warden sent denying allegations response written 7, 2005, complaining on March Schuetzle Norman’s kites other that he showed to allowed other inmates to that Wrolstad denying he had inmates and solicited filed the kites Norman had read up anyone pro- to beat Norman. Coad to Nor- responded Wrolstad. Schuetzle response vided the written “Mr. Wrol- day, stating man the next who, meantime, sending in the continued your not show kites stad should Bertsch, kites to Stromme and to LeAnn inmates, to research & but he does have the Director of the North Dakota De- questions.” (Appellee’s respond your Corrections, get partment seeking 25.) Norman continued send App. response trig- fired. Wrolstad Wrolstad’s complaining about the letters Wrolstad July kites gered more from Norman *5 management restaurant class. to 2005 and addressed Coad Stromme Corky a letter to Strom- complaining Norman sent about what Norman deemed (Strom- me, Security Chief NDSP inadequate investigation an into Wrol- granted qualified immunity), dat- me was in depart- activities the education stad’s 2005, 28, again complaining June that ed ment. pris- his to other showed kites
Wrolstad to allegedly Wrolstad showed kites pass and them to the kites oners allowed Bryant, Jeremy inmate who showed the Although among the inmatеs. he other Meyers, kites to Michael inmate who trying to complained that Wrolstad was ultimately Septem- assaulted on Norman dirty inmates to his work” get other “do 22, Meyers a history ber 2005. had to trying and to incite other inmates as- the NDSP to prior assaultive behavior at him, request pro- sault Norman did not his on Norman. He had five ad- assault tection, but for Mr. Wrolstad’s “ask[ed] ministrative arrests related to assaults on (Id. 26.) In a termination.” at June 30 fellow inmates between December 2003 kite, addendum to the June 28 Norman Meyers placed and December 2004. was him that another inmate told that stated in his segregation, administrative served stay to told the other inmate Wrolstad time, ultimately into the and was released away from Norman because Norman was February general population pur- up,” to beat and Norman “going get Af- suant to an “administrative contract.” soliciting wrote “Wrolstad is general ter his into population, release (Id 27.) me up.” someone to beat Meyers was involved in the Intensive An- Again, protection Norman did not seek program and earned his ger Management for a asking but ended the kite meet- way housing unit on preferred into a based going to what was to be done ing discuss positive his behavior. had no dis- stating, and “I’m with Mr. ask- Wrolstad (Id) February 2005 ciplinary problems between job.” for his Norman added a ing in September and assault on Norman his stating, nothing “This has to do with note July. Meyers except one incident my paperwork, this all getting inmates barber, and, an inmate while worked as Any Mr. Wrolstad. inmate would take hair, he shaved cutting to another inmate’s paperwork given them Staff motive the letter into the back of the inmate’s member. It’s Wrolstad’s behind “C” they identify ing hair to him a child molester. him from behind while were both as hallway. in the day. He corrected haircut same traffic Meyers’ brought weeks Norman a civil prior About two as- action under Norman, approached § an U.S.C. February sault on inmate Materi, officials, Appellant Mary claiming an NDSP various Case NDSP (where right free from Worker in the East Cell House to be cruel and unusual housed), punishment Norman told her under the Eighth was and that a Amendment looking black man was hire someone when the violated defendants failed to Meyers’ assault Materi told the him from assault. inmate The verify magistrate judge, presiding she would need to the claim with the con- pursuant inmate looking parties asked for the name of the sent of the 28 U.S.C. 636(c), § an February to hire the assault but did not further entered order on investigate allegation. day granting summary judgment before some assault, Taylor, Brian denying NDSP Case named defendants but it as House, Schuetzle, Schwehr, Materi, Worker in the West Cell called con- Schwehr, Appellant cluding Marc a Case Worker that fact precluded issues their House, immunity. the East Cell and told qualified Schwehr claims to The court joked ruling had fight- around about deferred on Wrolstad’s motion for ing with evening, summary judgment Norman. On the same to allow who who, Meyers, se, proceeding pro as earlier mentioned was an to submit addition- barber, talked to Schwehr al regarding about evidence whether Wrolstad letting out of for a supplied his cell haircut. Norman’s kites to inmates. *6 2008, May 23, Schwehr refused because Norman was on On the court concluded that Meyers cell confinement. tried to con- fact precluded finding issues Wrolstad en- vince that Schwehr inmates could be let titled to on qualified immunity summary haircuts, out of cell confinement for judgment. but Each of prison the officials Schwehr still refused. Meyers interlocutory also sent a filed an of appeal the denial package containing towel, to Norman a of his or claim qualified immunity, her of which was night granted delivered to Norman that and our joint court their motion to by Schwehr. appeals. consolidate the Schwehr made a note in the East Cell II. logbook House that night which stated “Meyers, Michael # 2427 interlocutory assault appeal Nor- this from man, 16372, # James Lt. was summary notified.” the denial judgment of based on 42.) (Appellants’ App. at took a claim qualified immunity, Schwehr no of we review action, other stating in his affidavit that he the district court’s decision de novo. See Dormire, did not seriously 441, take the threat Irving because v. 519 F.3d 445 Cir.2008). joked often around. The next review limited Our is to the morning, reported whether, Materi for duty legal and considering issue of entry made an in logbook at 5:30 light am: facts most to favorable Nor (Id. Duty, man, “Materi Log on a any clearly Reviewed.” there violation of 46.) roll-out, She then morning conducted right. established federal Id. at 445-46. which is when the jurisdiction inmates are let out lack Although we review a shower, medications, their cells to take district court’s conclusion that sum go during to breakfast. It mary judgment genuine this time record raised that Meyers by concerning assaulted Norman attack- issue of fact the gov- material
1103
process
not “an
two-step
in actions
the Saucier
involvement
officials’
ernment
requirement”).
“the un-
inflexible
Where
that,
true,
peti-
have violated the
would
lawfulness of the officers’ conduct ... was
rights, see Johnson
constitutional
tioner’s
established,
clearly
are
2151,
[the officers]
not
Jones,
304, 313, 115 S.Ct.
v.
Pearson,
qualified immunity.”
entitled
(1995), may
we
still “ex-
238
132 L.Ed.2d
Qualified engaging from in cruel having government its the from defend prison official punishment, requires which § on the and unusual premised 1983 lawsuit take reasonable meas discretionary officials performance official’s *7 from violence from ures to inmates long prison as the official’s functions as Brennan, inmates. See Farmer v. “clearly an inmate’s other actions do not violate 825, 832, 1970, 114 128 511 U.S. S.Ct. statutory or constitutional established (1994). inmates have L.Ed.2d 811 While person a reasonable would rights of which Selk, “right pro to be F.3d an Amendment Young known.” v. 508 have Cir.2007) (internal ..., (8th 868, by from harm fellow inmates marks tected 871 omitted). only right violate this when determining pris prison whether a officials immunity, they exhibit a ‘deliberate or callous indif qualified on official is entitled safety.” Tucker v. to an inmate’s look first at whether ference’ generally courts Evans, 999, 1001 violated the in 276 F.3d alleged official’s conduct Cannon, 474 and, so, Davidson v. U.S. (quoting at all then rights federal mate’s 344, 347, 668, 677 106 88 L.Ed.2d right estab S.Ct. ask whether (internal omitted)). (1986) In a citations Irving, the conduct. lished at the time of claim, Eighth Amendment (discussing prisoner F.3d at 446 Saucier 519 requirements, 194, 201, 2151, 150 satisfy must two Katz, “prisoner 121 S.Ct. subjective. The (2001)); objective and one Pearson v. one 272 but see L.Ed.2d , — whether, viewed -, 808, tests requirement first 129 S.Ct. U.S. Callahan (2009) rights was deprivation (holding objectively, 813, 565 172 L.Ed.2d 1104 subordinates, Fowler,
sufficiently
require
serious. The second
see Andrews v.
(8th
subjective
requires
1069,
Cir.1996),
ment is
that the F.3d
and the
prove
prison
that the
officials had a
information known
the individual case
”
‘sufficiently culpable state of mind.’
Irv
imputed
workers cannot be
to the Warden
Farmer,
ing,
(quoting
jective component prison asks whether the dangerousness, pointing to the fact that deliberately official was indifferent prior had five administrative con- serious risk of an attack on the inmate. assaulting victions related to other inmates subjective component requires Id. The “ placed and had been seg- administrative the official was both ‘aware of facts from regation. concedes, however, As Norman which the inference could be drawn that a Meyers had served his time in exist[ed], substantial risk of harm administra- serious ” segregation; and he must also draw the tive he was inference.’ released back Morrison, Pagels v. general into the population pursuant Cir.2003) Farmer, (quoting 511 U.S. at Administrative Segregation Contract 1970). Negligence S.Ct. on the February which placed conditions on part of official is insufficient to general his return to the population and satisfy subjective component; the offi required Meyers to participate in an Inten- cial recklessly known, must disregard a Anger Management sive program. Fol- excessive risk of serious harm to in lowing his release from seg- administrative subjective mate. Id. Given the culpability regation, he also way earned his into a requirement, we address each offi preferred housing unit based on his dem- cial’s qualified entitlement to immunity in positive onstrated behavior. dividually.
The district court on relied the haircut A. Warden Sehuetzle incident that in July occurred 2005 to con- clude that there was evidence from which
Norman’s “case [Warden] jury prison officials, could find that in- Sehuetzle is based on the claim that in cluding Sehuetzle, Warden were aware mate awas substantial risk to Meyеrs presented inmates, a substantial just not risk and that to other inmates but failed to appro- [Warden] Sehuetzle was take deliberately indif 37.) priate ferent to that risk.” corrective action.1 (Appellee’s Br. at The district *8 found, that, The district court that a jury court concluded could and Norman con find cedes, given Meyers’ prior behavior, there is no evidence that the assaultive Warden any prison was aware of officials of the informa should have in steps had by tion known Taylor, place requiring Case prompt protective Workers Ma meas- teri, or September Schwehr on 21 in any and 22. ures the event of type by of threat Warden Meyers, Sehuetzle cannot be held liable the haircut incident could under a supervisory theory prompted absent notice have protective such measures a pattern taken, by unconstitutional acts his be and that prison officials dispute 1. ported There is a about by by whether Warden the affidavit filed the inmate who incident, Sehuetzle was aware of the haircut claiming received the haircut that he filed a interlocutory appeal, haircut, but in accept grievance this we following which would allegation sup- that he was aware of it as have alerted Sehuetzle to the incident.
1105 Hennepin County, in Hott v. unreasonably failing to lation. See acted therefore (8th Cir.2001) Minn., 901, Meyers general popula- from the 260 remove F.3d 907-08 (“[T]he haircut incident. following the plaintiff tion evidence adduced is support insufficient to an inference that presented facts as Nor suicide amounts to such a substantial risk on put did not Warden Schuetzle man general safety that Rieder’s fail Meyers presented a substantial notice that according ure to conduct checks to ADC in general harm to inmates risk of policy amounted to deliberate indifference such that he should have fore population Reece, needs.”); Hott’s 60 F.3d at cf. Meyers’ attack on Norman. The sub seen (concluding that risk on 491 of assault qualified immuni jective component of the inmate who was known informant and that the official “knew ty inquiry requires placed segregation administrative for disregarded an excessive risk to” of and obvious); protection his own Krein v. safety. Pagels, 335 F.3d at the inmate’s “ Norris, 487, 309 F.3d 489-90 may ‘a factfinder conclude 740. While (affirming summary judgment denial of af of a prison that a official knew substantial open fatally inmates in facility ter barrack the fact that the risk was obvi risk from Reece, attacked another inmate where there ous,’” at (quoting 60 F.3d 491 1970), Farmer, 842, 114 evidence that barrack was understaffed for 511 U.S. S.Ct. prison months, fact remains that official period of several that violence in inference, Pagels, see must still draw the than in higher the barrack was five times Supreme at 740. The Court 335 F.3d barracks, facility failed to track prison that a official made clear Farmer number location assaults various prisoner cannot liable for a attack be held barracks). required ‘are not “[P]risons subjectively he was aware of the unless indefinitely all segregate inmates whose recklessly ignored it. See Farm risk and original suggest they might crimes be ca ” er, 841-42, 114 511 U.S. at S.Ct. pable of further violence.’ Blades v. (“[W]e accept petitioner’s argument cannot Schuetzle, 801, 302 F.3d 803-04 Cir. Harris, 378, 109 that Canton [v. 2002) Crist, (quoting Curry v. (1989) ] S.Ct. 103 L.Ed.2d com (8th Cir.2000)). The same true pels prison the conclusion here that a offi engage for inmates who in violence while cial who was unaware of a substantial risk prison. give We must substantial defer of harm to an inmate nevertheless be ence to officials to determine the Eighth Amendment if held liable under dealing dangerous best methods for with the risk was obvious and reasonable inmates in the volatile environment that is it.”). prison officialwould have noticed Montgomery, life. See Crow v. (8th Cir.2005) (“ ‘A prison F.3d
That cut a into an “C” duty official’s under the Amend performing hair a haircut inmate’s while incorporates regard pris ment ... due does not make it so obvious that keeping on officials’ task of unenviable inmate, physically would assault another custody men in safe under hu dangerous Meyers’ given prior even assaultive behav *9 Farmer, (quoting mane conditions.” ior, in light of the seven months other 1970)). 844-45, U.S. at S.Ct. Cоnsid Meyers appropriate behavior that wise ering alleged, the facts as Norman has jury could infer from it that Warden present any failed to evidence from which deliberately to a Schuetzle was indifferent a fact finder could conclude that Warden substantial risk of harm to other inmates aware of a substantial risk leaving Meyers general popu- from in the Schuetzle was Further, Meyers prisoner that would attack another Schwehr did not let Norman out two months later if he was allowed to of his cell for a haircut requested by as general following Meyers, limiting Meyers’ remain in the further population access to Curry, supervisor the haircut incident. See 226 F.3d Schwehr notified his (concluding at 978 that warden did not of the threat and the events of the evening, Eighth rights though violate the of all even he Amendment did not believe the threat serious, prisoners general population an to be and he when noted the threat logbook. history inmate with violent who made threats to commit mass murder prison A official violates an in general popu- was allowed into the mate’s rights only Amendment period lation after an extensive of nonviol- “deliberately when he is indifferent to the conduct). ent The district court erred in need inmate from a substan denying qualified immunity to Warden tial risk serious harm from in other Schuetzle. Everett, mates.” Jackson v. 140 F.3d Cir.1998) (internal marks B. Case Worker Schwehr omitted). The distriсt court here conclud Norman claims Case Worker ed that Schwehr’s actions were not reason Schwehr violated rights his constitutional able as a matter of law. But we have when he failed to take further action to noted on numerous occasions that “reason protect him receiving after the information standard,” a negligence ableness is id. at Taylor from Case Worker that Meyers had negligence and “mere ‘sup does not made statements about fighting Norman. port a conclusion that [a official] The district court concluded that Schwehr exercised disregard callous or reckless in was not entitled qualified immunity ” be risk,’ in responding difference to the id. cause there was sufficient evidence from Wood, (quoting Bailey which a jury could conclude that Schwehr (8th Cir.1990)). Jackson, the dis was aware of a substantial threat to Nor trict court had deemed to be insufficient man Taylor’s based on report, coupled prison guard’s response an anony with the events of night before the mous note that one inmate would kill an Meyers attack when get tried to Schwehr during night. other one guard to release Norman for a haircut and sent involved, interviewed the two inmates both him the towel. The district court also having of whom denied an issue with the although concluded that Schwehr took other, and supervisor notified his the fol some action when he noted the threat lowing morning. Although the attack did logbook supervisor, and informed his not occur until following day, later on the say could not that Schwehr’s actions were the district court concluded that “reasonably sufficient as a matter of law” guard’s separate failure to the two inmates (Add. him qualified immunity. entitle (who were bunked next to each in an 36-37.) barrack) open or weapons check for could When Schwehr received notice from be construed as deliberate indifference Taylor joking fight- jury. about Id. We reversed the denial of ing with was housed in qualified immunity, reasoning “[b]e- House, the West Cell and Norman give prison cause we ‘wide-ranging officials Thus, housed in the East Cell House. preserve deference ... internal order Meyers did not have immediate access to discipline and to maintain institutional Norman to follow through security,’ with the threat. guard’s] failure to [the take addi-
1107 measures, guesses gray not liable for bad ar- security arguably even tional eas; they reckless disre- are for transgressing cannot constitute liable negligent, at known risk.” Id. 1152-53 gard bright qualified immunity of a lines.... The Nesbitt, F.2d 379 (quoting Falls gives ample standard room for mistaken (8th Cir.1992)). all judgments protecting but the incompetent or those who plainly know- Jackson, As was true in (internal ingly violate the law.” marks given “wide-ranging are officials here omitted)). and citations order preserve to internal deference maintain institu- discipline and and to (internal security.” Id. marks
tional
C. Case Worker Materi
omitted).
ignore Schwehr did not
Taking
favorably
the facts most
to
notify
his su-
proceeded
threat but
Norman,
Materi
in
Case Worker
logbook.
in the
logged
and
pervisor
prior
weeks
to the assault
formed two
to take additional se-
failure
Schwehr’s
guy”
was look
an inmate
“some black
curity
may not have been
measures
ing to hire someone
assault
hindsight,
giv-
but
judgment call
best
assault,
morning
On the
Materi
known to Schwehr
en the circumstances
reported for work at 5:30 a.m. and attend
Blades,
time,
at
see
at
a.m.
briefing
ed a
until 6:00
as
(“[T]he
indiffer-
matter of deliberate
If
saulted Norman at 6:20 a.m. Materi saw
regard
determined with
ence must be
entry at 5:30 a.m. when she
logbook
prison official’s knowl-
to the relevant
in,
fact
signed
a
we take as true on the
question,
time in
not with
edge at the
record,2
disputed
she also would have seen
(internal
hindsight’s
perfect
vision.”
Lieutenant of the
that Schwehr notified his
omitted)),
say
we cannot
marks
undisputed
threat.
It is
that Materi rou
unconstitutionally
engaged in
Schwehr
tinely
approximately
at work
an
arrived
punishment when he
cruel and unusual
members,
than other staff
who
hour later
logbook
noted the threat
by a
separately
morning
were
briefed each
supervisor
but did no
contacted
a
district court
captain or
lieutenant. The
Tucker,
more,
ing the consent-once-removed doctrine at payment to inmates to
targeted
assault the
actions),
the time of the officers’
and held inmate,
arming
even
one inmate with a
that
qualified
thе officers were entitled to
contrast,
razor
In
alleges
blade.
immunity because “the unlawfulness of the
only that Wrolstad showed the kites Nor-
officers’ conduct in this case was not dear- man had written complaining about the
established,”
ly
id.
823.
program
restaurant
to other inmates in
hopes
they
dirty
would “do his
Following
Supreme
Court’s
work.” There is no evidence that Wrol-
then,
lead
we must determine whether
stad verbalized his hopes that someone
Wrolstad was on fair
spring
notice
would
dirty
“do his
work” or take care of
of 2005 that his actions of allowing the
fact,
Norman.
In
only
pre-
evidence
other inmates to view Norman’s kites com
sented
is Wrolstad told
that it
inmates
plaining about how Wrolstad ran the res
was not worth losing
privileges
their
over
taurant class
unreasonably subject
would
event,
any
Irving was decid-
Norman to a threat of substantial harm at
long
ed
after the events involved here and
the hands of the other inmates. Norman
put
could not have Wrolstad on notice that
argues that Wrolstad’s actions are akin to
analogous
actions
an
labeling
inmate a
snitch, which,
him
labeling
a
subsequent to
snitch violate the inmate’s constitutional
here,
the events at issue
our circuit held
rights.
violates an inmate’s constitutional rights.
See Irving,
Further,
forming him considering require- When the second Shortly receiving after attack Norman.3 ment, pre- we ask whether Norman has Taylor, Meyers attempted to the call from subjective sented sufficient evidence of the to let Norman out of convince Schwehr aspect of his Amendment claim. for a haircut. The district court his cell requirement, “To meet this [Norman must] un- request found evidence the was made that the show defendants exhibited suffi- suspicious der circumstances because mind, is, ciently culpable state of on cell confinement for the “Norman was [they] deliberately must have been indif- evening per- and Schwehr understood that ferent to the substantial risk of serious were not allowed sons on cell confinement Young, harm to [Norman].” 508 F.3d at haircut, Meyers attempted for a but out (citation quotation and internal marks policy him that had to convince omitted). deliberately “An official is indif- Later, Meyers had a towel de- changed.” actually ferent he or she knows of the attempt livered to Norman a further risk and to respond substantial fails rea- response lure him out of his cell. Farmer, sonably (citing to it.” Id. against Norman and his Meyers’s threats 1970) 844-45, cell, (emphasis U.S. S.Ct. lure Norman from his attempt added). question “Thе of whether the offi- superior placed notified his Schwehr warning logbook indicating Meyers in the cial knew of the substantial risk is a factu- Finally, ‘subject assault Norman. al one to demonstration told him it looked as if states Schwehr ways, including usual inference from cir- ” him.” get “someone was out (citing cumstantial evidence.’ Id. Farm- *16 er, 1970). 842, 511 at 114 U.S. S.Ct. Nor- evidence, objectively it is Based on this prison man need not show “that a official risk apparent Norman faced substantial harm believing acted or failed to act actu- early harm. As as two weeks of serious inmate; ally enough would befall an is soliciting attack an inmate was before the or to act de- the official acted failed Norman, and inmates to assault of spite knowledge his substantial risk himself a threat Meyers, proven who had Farmer, 842, harm.” 511 serious U.S. occasions, to other inmates on numerous Moreover, 114 1970. “in order to S.Ct. agreed job. day to do the The before the claim, have a deliberate indifference viable assault, at- Meyers openly threatened to plaintiff required allege is not and attempted tack Norman and to have him prove specifically that the defendant ... facilitate at- released from his cell to the anticipated precise knew about or the tack. The fact that advised his Schwehr Leonard, of the harm.” Kahle v. source superior, refused to rеlease Norman from 544, cell, (emphasis 477 F.3d placed warning his a written the Norris, threats, original) (quoting Krein v. the logbook memorializing (8th Cir.2002)). strengthen all the conclu- F.3d warned Norman majority's Mey- majority 3. the and the characterization of minimizes seriousness "joking” supported by by adopting Taylor's the threats claim that ers's threats as is not behavior, Meyers’s past "Meyers joking fighting the evidence. violent was about with Nor- Norman, Ante, reviewing attempts man ...." at 1106. When the his threats his gain evening qualified immunity we access to Norman the before the denial of consider assault, light all evidence in the favorable to the and the attack on Norman most joking. non-moving party, Irving, 519 F.3d at indicate was not violence, attack threatening Nor I conclude Norman’s evidence suffi- summary judgment on the Meyers’s cient to avoid man. Schwehr was also aware of subjective component Eighth of his suspicious attempts to have Norman re noted, previously As Amendment claim. Having leased from cell. been made his history long had a of vio- risk of aware of the substantial serious evening lent assaultive behavior. On the duty harm to Schwehr’s under Norman, Meyers assaulted told before he Eighth Amendment was “to take rea Taylor he intended to assault Norman and Farmer, sonable measures to abate it.” Taylor forwarded the threats on to (“[A] 848, 114 S.Ct. 1970 Taylor char- Schwehr. Schwehr contends official be held liable under Meyers’s “joking” acterized threats as only Amendment ... he knows downplays their seriousness. On such a that inmates face a substantial risk of seri conclude, record, majority, I unlike the disregards harm and that risk ous fail import Meyers’s that the threats cannot ing to take reasonable measures to abate determining be minimized when if sum- it.”); Dahm, see also Prater v. mary judgment appropriate. (8th Cir.1996) (“[An plead inmate’s] Schwehr’s own words and actions under- ings must demonstrate that the offi self-serving subjectively mine his claim he reasonably despite cials failed to act as After viewed threats incredible. knowledge of a substantial risk of serious Taylor Meyers’s informed Schwehr of harm....”). conclude, I as did the district Norman, Meyers threats tried court, actually Schwehr knew of the sub talk releasing Schwehr into Norman from recklessly stantial risk to Norman but dis affidavit, suggests his cell. In his Schwehr regarded by failing risk known to take why Meyers he had no idea Nor- wanted reasonable measures to him. As a man out of his cell. Incredibly, he disre- matter, addressing threshold before gards the most obvious facili- reason —to actions, unreasonableness of Schwehr’s I tate the threatened assault on Norman. majority’s first misapprehen address Despite Schwehr’s convenient omission in sion of controlling precedent. affidavit, his actions at the time indi- controlling direct contravention of cate seriously. he took the threats His Supremе precedent, majority Court suspicions affidavit confirms his and he did *17 bushes aside the evidence and holds Meyers’s not believe proffered reasons for required Schwehr was not to act reason- wanting access to Norman: “I did not ably subjective in response to his knowl- Meyers know request whether was an [sic] edge of the of substantial risk serious attempt by Meyers get to Norman out of harm to Norman. “[W]e have noted on his cell so give could Norman a numerous occasions that haircut, him, reasonableness is to talk buy something standard, negligence him, negli- and mere any possible for or number of other Indeed, gence support does not a conclusion that [a reasons.” because of the threats exercised disregard official] and the “towel incident” callous Schwehr refused Instead, responding to release Norman from or reckless indifference in to a his cell. (internal Ante, superior quotation he notified his a nota- at 1106 risk[.]” made omitted). logbook warning majority tion in the of a marks and citation The possible assault. Schwehr also told Norman: “It states: trying you
looks like someone is up.” set Schwehr’s failure to take additional se- curity expressly Schwehr was made aware that measures not have been the Meyers, long history judgment hindsight, giv- an inmate with a of best call in but harm, judged by en the circumstances known to Schwehr serious are to be a reck- say that at the time we cannot Schwehr lessness standard. To the extent this unconstitutionally precedent may otherwise, cruel engaged and court’s hold it is punishment when he noted the consequence yield unusual of no and must to the logbook threat in the and contacted his Supreme pronounce- Court’s most clear supervisor but did no more. ments. (internal omitted).
Ante, at 1107 citations Turning analysis now to an of Schwehr’s measuring attempts Instead of Schwehr’s actions, I conclude he failed act reason- against the risk to Norman abate ably to abate the risk to Norman. As standard, majority reasonableness noted, despite Meyers’s proven propensity prevail holds Norman cannot unless violence, for Schwehr did not take the recklessly. quite acted This is Schwehr threats seriously. simply wrong. Schwehr’s casual attitude towards a violent sure, legal concept
To of “reck- be inmate’s threats of violence anoth- It germane attempts gain lessness” is to this discussion. er inmate and his access not, however, inmate, the standard which to the constitute deliberate disre- actions, gard after he became aware of a Schwehr’s substantial risk of serious harm. response risk, of the risk of harm to In substantial serious to this known Schwehr judged. Supreme are supervisor Court states he informed his as to repeated threatening has stated an official to attаck Norman. however, reasonably neglects, must act to abate such harm. He identity to share the Recklessness, Supreme supervisor (beyond as used indicating it was lieutenant) Court, deliberately speaks to the official’s unidentified or to tell the what, if any, indifferent state mind. court actions he was “[Deliberate instruct- a state indifference describes mind ed to take.4 Such information is vital to blameworthy any more than negligence.” inquiry into the reasonableness of his Farmer, actions, provide S.Ct. 1970 and the failure to it pre- added). such, an (emphasis any meaningful As official’s cludes evaluation of state of mind is not relevant to whether he conduct. All Schwehr’s we know is he call, reasonably response acted to the known claims to have made a telephone risk, which, law, disregard but rather whether his as a matter of cannot be ad- recklessly judged the risk was done or with delib- reasonable under the circum- words, If erate indifference. “sub- stances. Schwehr was instructed to jective recklessness ... take further action but disregarded test those [is] orders, unreasonably. ‘deliberate indifference’ under the he acted Similarly, 839-40, 114 Amendment.” Id. at S.Ct. Schwehr was instructed to ig- and did *18 risk, recklessly ... person 1970. act nore the known he also “[T]o acted unrea- ‘consciouslydisregard]’ sonably. only must a substantial The other action Schwehr risk serious harm.” Id. at 114 took was to make a notаtion in the cell- (citing logbook indicating “Meyers, S.Ct. 1970 Model Penal Code block Michael 2.02(2)(c)). Norman, § Nowhere has the assault Supreme James.” actions, an taken suggested investigation Court official’s Schwehr undertook no threats, in response speak on-duty to a known substantial risk of did not with other Notably, pro- 4. the district court ordered Schwehr unidentified lieutenant and none was produce any provided written reference or note doc- duced. Nor has Schwehr an affida- umenting mystery a contact between Schwehr and the vit from the lieutenant. earlier, threats, conveyed substantially to Materi and did not about the officers threatening credibility of the to Nor- Norman increased the risk inform about evidence, was, therefore, I have no him. Based on this man. It unreasonable for jury find concluding a could trouble information critical to a Materi withhold actions failed to take reasonable Sehwehr full and accurate assessment of the situa- the substantial once he became aware of prevent tion and to take no action to I risk of serious harm to Norman. also assault. majority, though mistakenly it note Finally, majority disregards Materi’s actions a reckless- measures Schwehr’s indicating any statement she “had valid standard, concludes Sehwehr ex- ness also a planned information about assault on judgment. poor ercised immediately Nоrman would have be- [she] supports I further conclude the evidence an gan investigation.” majority The finds recklessly Norman’s claim as to Materi probative the statement has no value be- disregarding the substantial risk of serious cause it was made reference to the morning Meyers posed harm to him. The information Materi received two weeks and at- after threatened Norman attempting earlier about to hire him, Materi, gain access to who tempted someone to attack Norman. I find this earlier had been informed of two weeks reasoning upon curious. Materi stated re- Norman, duty on against threats came ceipt of valid information concerning a.m. at 5:30 Norman’s cellbloek. She de- planned investigation assault an should im- actually reading logbook nies contain- mediately be started. Her belief as ing regarding Meyers’s Schwehr’s notation steps what should be undertaken in such Norman, her threats but denial is directly circumstances relevant contradicted a notation she made indi- reasonably protect whether she acted cating upon arriving she read it at work. majority, I Unlike find no Despite knowledge, this which we must discounting basis Materi’s account of assume, protect Materi took no action to proper procedure simply because it refer- at ap- Norman and the assault occurred predated enced an incident which the as- proximately majority 6:20 a.m. The con- jury, sault on Norman. A based on Ma- busy any cludes Materi too to take statement, certainly teri’s almost would including action to con- day on the conclude Norman was assaulted ferring with other staff or members understanding she held same of what Norman in until locking his cell such time procedures to follow in the event a credible properly investigate as she could threat an inmate was received. however, jury, A might readily
threats. conclude was unreasonable for Materi to I disagree majority’s also with the deci- nothing. majority do excuses Ma- granting qualified immunity sion to Dan by concluding teri’s inaction she was rea- Wrolstad on the basis of Norman’s assert- assuming sonable in the matter had been right being clearly ed constitutional as not communicated to other staff members. established. Assuming other staff members had been early began complain- threats, they briefed were not about Tim ing to Warden Schuetzle about res- privy to the additional information Materi *19 through taurant class offered had received two weeks earlier which cor- department. particular, education Nor- log- roborated the threats outlined specific complained funding book. The and man about for the immediate threats Wrolstad, Meyers, coupled prison’s with the information class and accused director, misusing govern- of aware inmates angry complain- education were ing about Norman’s activities. complaints ment funds. These followed complaints by accusing earlier majority The concedes pre- Norman has misdeeds. his of other While Wrolstad sented sufficient evidence from which a pend- the class complaints regarding were jury provided could infer copies Wrolstad complaint another with ing, Norman filed grievances of Norman’s to other inmates. contending given had Schuetzle Wrolstad majority nonetheless concludes Wrol- copy complaints of his other inmates stad’s actions did not violate Norman’s in doing attempting so was to incite clearly rights. established constitutional I them to retaliate. Schuetzle instructed respectfully disagree. must he should not disseminate inmate Wrolstad pro complaint Norman’s se alleges: among other grievances inmates. Accord- Mr. purposely passed my Wrolstad con- Norman, ing complaints his could have fidential letter and grievances around to caused some class activities to be eliminat- dept, retaliatory inmates his as a ac- angered ed which would have inmates tak- tion in hopes getting me to stop re- ing alleges, the class. He further Wrol- questing information from him and the gave complaints to stad other inmates way things being were run in dept.. his out of a desire to retaliate for the recent And Mr. disregard my Wrolstad’s grievances against and earlier filed Wrol- rights confidential have lead [sic] to the stad. recent assault on me. prove allegations against To Appendix Wrol- of Appellee, p. 16. stad, Norman offered the affidavits of two Construing complaint liberally, Es-
inmates. One inmate indicated he ob-
Gamble,
97, 106,
telle v.
97 S.Ct.
served another inmate enter a classroom
(1976)
(holding
from which could conclude Wrol- stad, intent, retaliatory disclosed the with grievances
contents of Norman’s to other purpose provoking inmates for the them Reginald CLEMONS; Clay; Richard D. to take action Jeffrey Ferguson; R. Roderick Finally, Norman also offered suffi- has Nunley, Plaintiffs, prove cient evidence to the disclosure of grievances resulting attack were Anthony Taylor; Link; Michael Martin causally related to the exercise of his First Christeson; Rousan; Mark William L. right. Amendment Norman filed multiple Middleton; John Charles Russell Earl grievances complaining about Wrolstad’s Bucklew; Ringo, Jr., Earl Intervenor management prison’s educational Plaintiffs/Appellants, program. complaints sought to cur- program, tail or eliminate elements of the Wrolstad, alleged misconduct and de- Larry CRAWFORD; Purkett; James D. manded his dismissal. In the absence of Terry Moore, Defendants/Appellees. any explanation, jury could rea- Nos. 08-2807/08-2813/08-2894/08-2895. sonably conclude violation Wrolstad’s prison policy was undertaken with a retal- United States of Appeals, Court iatory Additionally, motive. Norman’s evi- Eighth Circuit. dence shows the inmates to whom the Submitted: Feb. 2009.
information plotted was disclosed to take Filed: Nov. 2009. jeopardizing action him for the in- prior mate cookout. Two weeks to the Rehearing En Rehearing Banc assault, Materi was informed an inmate Denied Dec. 2009.* soliciting other inmates to attack Nor- evening man. The before the assault
Meyers threatened to attack Norman and
attempted to have Norman released from Finally, eye-witness his cell. to the appeared assault stated it to have been planned in advance and not the result disagreement
of a mutual between Nor- Meyers. man and * Judge part Benton took no in the consider- ation or decision this matter.