UNITED STATES of America, Plaintiff, v. SANFORD-BROWN, LIMITED, et al., Defendants-Appellees.
No. 14-2506
United States Court of Appeals, Seventh Circuit
October 24, 2016
840 F.3d 445
Appeal of: Brent M. Nelson
In these circumstances we can‘t see how the defendants, who as supervisory employees of the prison would have limited interactions with inmates, can be thought to have been deliberately indifferent to the possibility that the plaintiff would be raped—that is, would know there was a nontrivial danger of that happening, could prevent it without danger or other undue cost to themselves, but instead decided to do nothing.
Had the plaintiff any fear of DaSilva, it behooved him to ask the prison staff to transfer him to another cell. If he either is a homosexual or, as he contends, felt vulnerable because he was believed by prison staff and prisoners to be one, it behooved him to complain to prison staff, consistently with the advice in the prison handbook. He didn‘t do that. He argues that random assignment of cellmates is deliberate indifference per se to prisoners’ safety. But the only alternative he suggests (for he does not argue that all prison inmates should be in solitary confinement or even that he should have been) is that sex offenders never be placed in cells with any inmate who for whatever reason is at a heightened risk of being sexually assaulted. Given the number of characteristics that could trigger such a heightened risk, sex offenders would probably have to be either placed in solitary confinement or given cellmates who were also sex offenders. The feasibility of such a solution can be questioned; but more important is the fact that the plaintiff presents no evidence that it would promote prison safety more than the handbook, which emphasizes a prisoner‘s right to complain about danger posed to him by a cellmate. Apropos is our comment in Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995), that if prison staff “place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent—even grossly negligent or even reckless in the tort sense—in failing to know.” We can‘t even say that administrators of the Stanley Correctional Institution were negligent or reckless in erecting this policy. The line officers who assigned Ramos and DaSilva to the same cell may have been negligent or reckless, but he hasn‘t sued them—just the administrators.
In short, the plaintiff has no case, and so his suit was rightly dismissed by the district court.
AFFIRMED.
James H. Kaster, Attorney, Minneapolis, MN, for Appellant Brent M. Nelson.
Martin M. Loring, Derek T. Teeter, Attorneys, HUSCH BLACKWELL LLP, Kansas City, MO, Daniel J. Vaccaro, S. Edward Sarskas, Attorneys, MICHAEL BEST & FRIEDRICH LLP, Milwaukee, WI, for Defendants-Appellees.
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge.
This matter is before us on remand from the United States Supreme Court for re-
I.
The plaintiff-relator‘s false presentment claim is based on a theory of “implied false certification.” In Universal Health, the Court held that the implied false certification theory can be a basis for liability where two conditions are met: “first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant‘s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.” Universal Health Servs., Inc., 136 S.Ct. at 2001 (footnote omitted).
Neither condition is met here. Nelson (the plaintiff-relator) offered no evidence that defendant Sanford-Brown College (SBC) made any representations at all in connection with its claims for payment, much less false or misleading representations. Nelson‘s bare speculation that SBC made misleading representations is insufficient to survive summary judgment. See Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014) (“Speculation is no substitute for evidence at the summary judgment stage.“).
SBC is also entitled to summary judgment because Nelson failed to establish the independent element of materiality. As the Universal Health Court explained, “a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government‘s payment decision in order to be actionable under the False Claims Act.” Universal Health Servs., Inc.; 136 S.Ct. at 2002 (emphasis added). The Act‘s materiality requirement is “rigorous” and “demanding.” Id. at 2002-03 & n.6 at 2004. To establish materiality, it is not enough to show that “the Government would have the option to decline to pay if it knew of the defendant‘s noncompliance.” Id. at 2003. Instead, “materiality looks to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Id. at 2002 (emphasis added) (internal marks omitted).
Here, Nelson has offered no evidence that the government‘s decision to pay SBC would likely or actually have been different had it known of SBC‘s alleged noncompliance with Title IV regulations. On the contrary, as we previously noted, the subsidizing agency and other federal agencies in this case “have already examined SBC multiple times over and concluded that neither administrative penalties nor termination was warranted.” Sanford-Brown, Ltd., 788 F.3d at 712; see also Universal Health Servs., Inc., 136 S.Ct. at 2003 (“[I]f the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.“). At bottom, even
II.
Having reconsidered our previous opinion in light of Universal Health Services, Inc. v. United States, — U.S. —, 136 S.Ct. 1989, 195 L.Ed.2d 348 (2016), we once again affirm the district court in all respects. With the exception of part IV(B)(2), the vacated opinion of June 8, 2015, is reinstated.
AFFIRMED.
MANION
Circuit Judge