REGGIE TOWNSEND, Plaintiff-Appellant, v. LARRY FUCHS and JERRY ALLEN, Defendants-Appellees.
No. 07-1384
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 25, 2007—DECIDED APRIL 10, 2008
Appeal from the United States District Court for the Western District of Wisconsin. No. 05 C 204—Barbara B. Crabb, Chief Judge.
KANNE, Circuit Judge. Wisconsin inmate Reggie Townsend filed a civil-rights action under
Townsend‘s civil-rights action has a convoluted factual and procedural history; we will endeavor to simplify the underlying proceedings, while simultaneously drawing all reasonable factual inferences in Townsend‘s favor. See Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007). We begin on November 11, 2004, when several members of the Latin Kings gang led a riot against correctional officers stationed in New Lisbon‘s Unit A. The gang members injured more than a dozen officers during the melee; one gang member, in particular, struck an officer in the jaw with a padlock that he placed in a sock and swung like a mace. In response, Warden Farrey placed New Lisbon in emergency status, suspended the prison‘s administrative rules, see
According to the WDOC administrative code, TLU is a “nonpunitive segregated status allowing an inmate to be removed from the general population pending further administrative action.”
Approximately 150 inmates were assigned to TLU at one time or another while prison officials attempted to determine who participated in the November 11 prison riot. Townsend himself was placed in TLU on November 15, after officials received word that, during the riot, he had destroyed evidence that could have revealed the identities of some of the inmates who were involved. See
Townsend remained in TLU for 59 days while prison officials investigated his role in the prison riot, and on January 13, 2005, he was transferred back to New Lisbon‘s general population when the officials were unable to confirm that he had destroyed evidence regarding the riot.1 In accordance with the WDOC administrative code, Townsend‘s parole eligibility was not affected by his TLU placement, nor was his sentence extended because of it. See
In the weeks following his transfer back to New Lisbon‘s general population, Townsend filed several complaints with the prison‘s Inmate Complaint Examiner, challenging both his placement in TLU and the unsanitary conditions in his cell. After Townsend exhausted the administrative remedies available to him, see
Townsend also alleged that Sergeant Allen deprived him of his Eighth Amendment rights by demonstrating deliberate indifference to his basic need for clean and sanitary bedding. According to Townsend, Allen knew that he was forced to sleep on a wet and moldy mattress, and yet did nothing to remedy the unsanitary conditions. After discovery commenced, Townsend submitted an affidavit and provided deposition testimony, in which he explained his allegations against Allen in greater detail. Specifically, Townsend stated that while he was in TLU, he personally complained about his mattress to Allen and requested a new, clean mattress for his cell. However, Townsend continued, Allen responded, “We can‘t get you a mattress right now,” and denied his request without further explanation. Townsend further related that several prison guards later informed him that his request for a new mattress was denied because if he received the mattress, prison officials would have to provide a new mattress to everyone else in TLU. Townsend also stated that the unsanitary sleeping conditions caused him to suffer several severe ailments, such as respiratory problems, chest and stomach pains, and muscle aches.
Security Director Fuchs and Sergeant Allen disputed Townsend‘s allegations and moved for summary judgment. Fuchs argued, among other things, that Townsend‘s due-process claim was meritless because the conditions in TLU were not analogous to those conditions the Supreme Court deemed atypically and significantly harsh in Wilkinson. Allen, in turn, argued that Townsend‘s Eighth Amendment claim failed because he was not personally responsible for the unsanitary condition of Townsend‘s mattress. In support of his argument, Allen attested in an affidavit that Townsend never spoke with him regarding the condition of his mattress; as Allen put it, “[a]t no time” did Townsend complain to him “about unsanitary or wet condition[s] of his cell or mattress,” nor did he “personally observe a problem concerning an unsanitary cell or wet mattress” in Townsend‘s cell or any other cell in TLU. But in several proposed findings of fact that Allen later filed with the district court, he admitted that Townsend had complained to him about the state of his mattress and had requested a new one; Allen further stated that he did not provide Townsend with a new mattress, even though New Lisbon had clean mattresses available. Finally, Allen conceded that he understood that it is unhealthy to sleep on a wet and moldy mattress, and that people risk developing health problems if they are forced to sleep on such a mattress.
After briefing on the summary-judgment motion completed, Townsend sought leave to amend his complaint and add Warden Farrey as a defendant to both his due-process and Eighth Amendment claims. See
The district court granted Security Director Fuchs and Sergeant Allen‘s motion for summary judgment. The court first rejected Townsend‘s due-process claim against Fuchs on the ground that Townsend did not have a liberty interest in
Finally, the district court denied as futile Townsend‘s motion to amend. Because Townsend had no liberty interest in avoiding placement in TLU, the court determined that he had no viable due-process claim against Warden Farrey. Likewise, the court continued, any Eighth Amendment claim against Farrey would fail because Townsend proffered no evidence showing that she was personally responsible for the conditions in his cell. The court accordingly entered judgment for Security Director Fuchs and Sergeant Allen, and closed the case.
II. ANALYSIS
On appeal, Townsend attacks the district court‘s grant of summary judgment for Security Director Fuchs and Sergeant Allen. Townsend also asserts that the court erred by denying his motion to amend his complaint. We will address these arguments in order, beginning with the district court‘s grant of summary judgment.
A. The district court‘s grant of summary judgment
By bringing his § 1983 action against Security Director Fuchs and Sergeant Allen, Townsend shouldered the burden of establishing that the men deprived him of his constitutional rights under the Fourteenth and Eighth Amendments, respectively. See Johnson v. Snyder, 444 F.3d 579, 583-85 (7th Cir. 2006). Thus, to prevail on his argument that the district court erroneously granted summary judgment for Fuchs and Allen, Townsend must show that the evidence he proffered created a “genuine issue as to any material fact” as to whether either man deprived him of his rights, and that they were not “entitled to judgment as a matter of law.”
1. Townsend‘s Fourteenth Amendment claim against Security Director Fuchs
We first address Townsend‘s argument that the district court erroneously granted summary judgment for Security Director Fuchs. Townsend essentially reasserts the argument that he made before district court. Specifically, he contends that Fuchs violated his due-process rights under Sandin and Wilkinson by placing him in TLU without procedural protections.
Because it is undisputed that Townsend was not afforded a hearing or other procedural protections before he was placed in TLU, his argument turns on whether he had a constitutionally protected liberty interest in avoiding placement in TLU. See Ky. Dep‘t of Corrs. v. Thompson, 490 U.S. 454, 459-60 (1989); Gillis v. Litscher, 468 F.3d 488, 491-92 (7th Cir. 2006). The Constitution itself does not create an interest in avoiding transfer within a correctional facility. See Wilkinson, 545 U.S. at 222; Meachum v. Fano, 427 U.S. 215, 225 (1976). Nevertheless, in Sandin the Supreme Court determined that the Fourteenth Amendment provides to inmates a liberty interest in avoiding placement in more restrictive conditions, such as segregation, when those conditions pose an atypical and significant hardship when compared to the ordinary incidents of prison life. See 515 U.S. at 484. However, since the Court decided Sandin, we have repeatedly determined that even extremely harsh prison conditions may not be so “atypical” as to create the liberty interest the Court contemplated. See, e.g., Lekas v. Briley, 405 F.3d 602, 609 (7th Cir. 2005); Thomas v. Ramos, 130 F.3d 754, 760-62 (7th Cir. 1998); Wagner v. Hanks, 128 F.3d 1173, 1175-76 (7th Cir. 1997). To that end, we have concluded that inmates have no liberty interest in avoiding transfer to discretionary segregation—that is, segregation imposed for administrative, protective, or investigative purposes. See Lekas, 405 F.3d at 608-09 & 608 n.4 (“[R]eassignment from the general population to discretionary segregation does not constitute a deprivation of a liberty interest.“); Crowder v. True, 74 F.3d 812, 815 (7th Cir. 1996) (holding that placement of inmate in non-disciplinary segregation for three months did not create liberty interest). Indeed, there is nothing “atypical” about discretionary segregation; discretionary segregation is instead an “ordinary incident of prison life” that inmates should expect to experience during their time in prison. See Lekas, 405 F.3d at 608-09; Wagner, 128 F.3d at 1176 (“Even a prisoner who had committed a white-collar crime and had been assigned to the lowest-security prison in the state‘s system might find himself in segregation for a nondisciplinary reason.“); Meriwether v. Faulkner, 821 F.2d 408, 414 (7th Cir. 1987) (“Given the broad uses of administrative segregation . . . inmates should reasonably anticipate being confined in administrative segregation at some point in their incarceration.“).
Here, it is clear that Townsend‘s assignment to TLU was discretionary. In fact, by admitting that his placement in TLU was contingent upon prison officials’ continuing investigation into whether he destroyed evidence related to the prison riot, Townsend concedes that he was placed in TLU for discretionary reasons. See
Townsend continues, however, that although he was placed in TLU for discretionary reasons, the conditions he endured while in TLU were sufficiently harsh to trigger the due-process protections announced in Sandin. Specifically, Townsend renews his contention that the conditions he faced in TLU—the double bunking, the sharing of the small wet cell and its amenities, and the limited human contact—were sufficiently analogous to the conditions of the state Supermax prison in Wilkinson to create a liberty interest in avoiding TLU.
Townsend misreads Wilkinson, and in so doing commits a mistake that renders inapt any comparison between the conditions in TLU and the conditions of the Supermax prison. As we noted in our recent decision Gillis v. Litscher, the Supreme Court in Wilkinson did not determine that the conditions in the Supermax prison created a liberty interest by themselves. See Gillis, 468 F.3d at 492. Although the Court briefly summarized the conditions that inmates faced in the Supermax, the Court based its holding largely on the fact that placement was indefinite and disqualified otherwise eligible inmates from consideration for parole. See Wilkinson, 545 U.S. at 223-24; Gillis, 468 F.3d at 492. Indeed, absent the indefinite placement and disqualification from parole, the Court stated that the conditions of confinement at the Supermax “likely would apply to most solitary confinement facilities,” suggesting that the conditions themselves were ordinary incidents of prison life that inmates have no liberty interests in avoiding. Wilkinson, 545 U.S. at 224; see also Westefer v. Snyder, 422 F.3d 570, 587 (7th Cir. 2005). In short, the Court in Wilkinson did not delineate what specific harsh conditions give rise to a liberty interest. See Wilkinson, 545 U.S. at 224; Gillis, 468 F.3d at 492. And because Townsend‘s placement in TLU neither was indefinite, nor affected his parole eligibility, nothing in Wilkinson requires us to reconsider our established position that inmates have no liberty interest in avoiding placement in discretionary segregation. See Gillis, 468 F.3d at 492; see also Holly v. Woolfolk, 415 F.3d 678, 680 (7th Cir. 2005) (citing Wilkinson to support proposition that “being placed in segregation is too trivial an incremental deprivation of a convicted prisoner‘s liberty to trigger the duty of due process“). The district court thus correctly granted summary judgment for Security Director Fuchs.
This is not to say that Townsend has no avenue to seek redress for the conditions he experienced while in TLU. We conclude only that the conditions have no bearing on whether New Lisbon prison officials were required to provide Townsend with procedural protections before placing him in TLU. The issue of the cell conditions in TLU is best analyzed as a claim brought under the Eighth Amendment, cf. Gillis, 468 F.3d at 492-95, which Townsend raised against Sergeant Allen, and to which we now turn.
2. Townsend‘s Eighth Amendment claim against Sergeant Allen
Townsend next challenges the district court‘s grant of summary judgment for Sergeant Allen. According to Townsend, he proffered evidence before the district court showing that Allen had actual knowledge that his health was jeopardized by sleeping on the wet and moldy mattress. That evidence, Townsend asserts, created a genuine issue of material fact as to whether Allen exhibited deliberate indifference to the unsanitary conditions in his cell.
Based on the parties’ dearth of input on the matter, it appears that they assume that Townsend endured a prison condition sufficiently serious to constitute an Eighth Amendment violation. The parties’ assumption might be incorrect if Townsend himself contributed to the mattress‘s foul state by, say, failing to place it on top of the bed while he or his cell-mate showered, and until the floor had dried. See Freeman v. Berge, 441 F.3d 543, 547 (7th Cir. 2006) (concluding that prisoner‘s starvation was self-inflicted when prison deprived meals because of his refusal to abide by prison‘s meal-time rules). However, Sergeant Allen forfeited the point on appeal by failing to raise it in his brief. See Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir. 2002). And even if Allen had raised the point, on this record we cannot say for certain that he would have prevailed. The party opposing summary judgment receives the benefit of reasonable inferences, see Vinning-El, 482 F.3d at 924, and it is possible that there was some reason why Townsend could not have placed his mattress on top of his cell-mate‘s bunk, so that both mattresses stayed dry. Indeed, at oral argument Townsend‘s attorney stated that Townsend attempted to move his mattress to keep it from getting wet when the shower was turned on, but to no avail. If Townsend was, in fact, unable to move his mattress to a dry area, then we would be hard-pressed to fault him and his cell-mate for refusing to abstain from bathing for his entire 59-day stint in TLU, just so Townsend could have had a dry place to sleep. See Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) (“[A] state must provide . . . reasonably adequate ventilation, sanitation, bedding, [and] hygienic materials. . . .“).
We therefore turn our attention to whether Townsend proffered evidence establishing that Sergeant Allen was deliberately indifferent to the unsanitary conditions in his cell. The district court concluded that Townsend proffered no such evidence; as the court explained, Townsend “proposed no facts” showing that he complained about his mattress to Allen. But the district court did not properly characterize the evidence when reaching this conclusion, and, more importantly, did not view the evidence in a light most favorable to Townsend. See Vinning-El, 482 F.3d at 924. Specifically, Townsend submitted an affidavit and provided deposition testimony, in which he stated that he personally complained about his mattress to Allen and requested a new, clean mattress for his cell. Townsend further related that Allen denied his request without explanation, and that he later learned that his request was denied on the basis that if he received a mattress, everyone else in TLU would also have to receive one. Allen initially disputed Townsend‘s version of events in an affidavit of his own, and for a time during the sum- mary-judgment proceedings, both men stood by their respective stories and asserted that their version of events—and only their version—was true. But then Allen‘s story wavered. Allen stated in proposed findings of fact that Townsend complained to him about the state of his mattress and requested a new one. Allen further admitted that he did not provide Townsend with a new mattress even though the prison had clean mattresses available, and that he also understood that an individual could develop health problems if he was forced to sleep on a wet and moldy mattress.
In other words, neither Townsend, nor Sergeant Allen, proffered evidence beyond their own testimony that either directly corroborated their respective stories, or completely refuted the competing version of events. Thus, the dispute over whether Allen knew about Townsend‘s cell conditions comes down to a good old-fashioned swearing contest that can be resolved only by assessing the credibility of the two men. Credibility determinations, however, lie exclusively within the fact-finder‘s domain and are not appropriate for a district court to make at the summary judgment stage, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001); Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (2000), particularly when the moving party‘s version of the facts changed over time to eventually support the non-moving party‘s position, see Outlaw v. Newkirk, 259 F.3d 833, 836 (7th Cir. 2001) (“Summary judgment is warranted only if ‘there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law.’ ” (alteration in original)
Therefore, when we view the record in the light most favorable to Townsend, we see a material dispute over whether Sergeant Allen knew that Townsend was forced to sleep on the wet and moldy mattress while he was in TLU. See Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003) (“[W]e have warned before of falling for the trap of weighing conflicting evidence during a summary judgment proceeding.“). And whether Allen knew about the substantial risk of serious harm created by the unsanitary cell conditions speaks directly to whether he exhibited deliberate indifference to Townsend‘s plight. See Pierson, 391 F.3d at 902; Proffitt, 279 F.3d at 506. The district court accordingly was wrong to grant summary judgment for Allen.
B. The district court‘s denial of Townsend‘s motion to amend
Finally, Townsend argues that the district court erred by denying his motion to amend his complaint and name Warden Farrey as a defendant. The district court concluded that such an amendment would be futile because Townsend‘s proposed claims against Farrey would not survive summary judgment. See King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007); Sound of Music Co. v. Minn. Mining & Mfg. Co., 477 F.3d 910, 923 (7th Cir. 2007). That decision was one left to the district court‘s discretion, Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005), which, we cannot say, the court abused. It would, indeed, be futile for Townsend to include Warden Farrey as a defendant on his due-process claim; as explained earlier, Townsend had no liberty interest in avoiding placement in TLU, and thus his claim would fail regardless of whom he named as a defendant. See King, 496 F.3d at 819; see also Lekas, 405 F.3d at 607. And Townsend failed to establish that Farrey had direct control over the unsanitary conditions in TLU. The most that Townsend asserts is that Farrey should have known about the conditions in his cell because, as the “ultimate decision-maker” at New Lisbon, she knew that inmates were double-celled in TLU and had to sleep on the floor. But because Townsend points to no evidence showing that Farrey either observed Townsend‘s cell personally or was informed of his specific situation, he would be unable show that she acted with deliberate indifference by failing to remedy the conditions in his cell. See Galdikas v. Fagan, 342 F.3d 684, 693 (7th Cir. 2003) (” ‘An individual cannot be held liable in a § 1983 action unless he caused or participated in [the] alleged constitutional deprivation.’ ” (quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983))); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); see also Farmer, 511 U.S. at 837. Thus, the district court correctly concluded that it would be futile to add Farrey as a defendant to Townsend‘s Eighth Amendment claim, see King, 496 F.3d at 819, and was right to deny his motion to amend.
III. CONCLUSION
To recap, we AFFIRM both the district court‘s grant of summary judgment for Security Director Fuchs and its denial of Townsend‘s motion to amend. However, we REVERSE the court‘s grant of summary judgment for Sergeant Allen, and REMAND for further proceedings.