Dale, Curtis L. v. Poston,Pamela ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2847
C URTIS L. D ALE,
Plaintiff-Appellant,
v.
P AMELA P OSTON et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 C 143—Sarah Evans Barker, Judge.
A RGUED S EPTEMBER 19, 2008—D ECIDED N OVEMBER 21, 2008
Before P OSNER, R IPPLE, and E VANS, Circuit Judges.
E VANS, Circuit Judge. Curtis Dale, a federal prisoner,
filed this suit in 2002 against several prison employees
claiming that they violated the Eighth Amendment by
failing to protect him from an attack by another inmate.
The case has gone back and forth with both Dale and the
government going 2 for 4: a loss for Dale at the
pleading stage, a win by Dale on appeal, a win by Dale
before a jury on a threshold issue, and finally a loss for
Dale on summary judgment. The last loss brings the
case before us a second time.
2 No. 06-2847
Dale filed his complaint in the district court in 2002,
naming Officer Pamela Poston, counselor Eric White, and
Harley G. Lappin, then the warden at the prison, as
defendants. Later, Dale amended his complaint to
include two additional defendants, Officer Phyliss King
and Officer Lynn Fortune. The district court screened the
complaint under 28 U.S.C. § 1915A and dismissed the
warden as a defendant. Still later, the district court
granted summary judgment in favor of the defendants
on the ground that Dale had failed to exhaust his ad-
ministrative remedies.
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 ex-
haustion] 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 administra-
tive remedies. The jury determined that the defendants
had not met their burden. Accordingly, the case pro-
ceeded on to the merits of Dale’s claims. In 2006, the
district court granted the defendants’ motion for sum-
mary 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
No. 06-2847 3
concluded that Dale’s “Statement of Facts” violated the
court’s local rule. For reasons we will explain later, that
little twist causes no concern as we proceed to recall the
settled facts in some detail.
Dale was serving time at the high-level security peniten-
tiary 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 testifican-
dum, 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 com-
pleted. The record is not entirely clear on this point, but
it appears that prison officials will not remove an
4 No. 06-2847
inmate from the SHU even if his fears are completely
unfounded. The purpose of the investigation is to deter-
mine whether there is a legitimate threat, not whether
the inmate should be permitted to remain in the SHU. No
inmate is forced to enter the general population if he
believes his safety is at risk.
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 authori-
ties 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 popula-
tion.” 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 enforce-
ment 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
No. 06-2847 5
just said he was having “problems.” He also told Fortune
that he wanted a transfer from Terre Haute because he
“could not live in general population.” Dale wanted to
move to the federal prison in Pekin, Illinois, a step down
on the security scale—Terre Haute being maximum
security, Pekin being medium security. But Fortune, as
an intake screening officer, lacked the authority to
transfer prisoners, so he stayed in the SHU pending
further review.1 Fortune had no contact with Dale
after this initial interview.
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
1
The intake review process is complex; the transfer process
more so. The intake review is a team effort, but only one
member of the team (the unit manager) has the authority to
recommend a transfer. If the unit manager feels a transfer is
warranted, she forwards the request to the warden. The
warden also lacks the power to transfer an inmate unilaterally;
he has the discretion to reject a transfer, but he must forward a
request he favors to the appropriate BOP regional office. Only
that office—with oversight of multiple prisons—has the
power to transfer someone.
6 No. 06-2847
prosecutor had called him and said he was under the
impression Dale had been threatened in some way and
other inmates might know he was cooperating. In light
of this call, Glancy instructed Poston and the review team
to “ensure a thorough intake interview is conducted to
determine if there are any security concerns” and, “if
appropriate, prepare a referral for redesignation.”
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 undis-
puted that, absent a verifiable threat, Dale’s “custody
classification score” required him to be at a maximum-
security facility like Terre Haute.
No. 06-2847 7
Dale was equally guarded in his discussions with
defendant Eric White. White was Dale’s correctional
counselor, and the two met on April 26, 2000, as part of the
next phase in the team-review process. Dale told White
that the “pressure was on,” that “they were asking ques-
tions,” and that he wanted a transfer to Pekin. White’s
response was consistent with Poston’s—he told Dale
that a transfer could only be approved by the regional
office, based on either a change in Dale’s security designa-
tion or a protective custody investigation that revealed
a true safety issue. White insisted that the regional office
and the warden would need more specific information
about who was threatening him and why, but Dale
always answered with “you know who” and “I am not
going to say anymore.” When White suggested protective
custody in Terre Haute (i.e., staying in the SHU perma-
nently), Dale said he did not “want to lock up because
they will know why I am doing it.” In other words, Dale
thought holing up in the SHU would be a sure sign to
other inmates that he was a snitch.
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
8 No. 06-2847
warden, who is no longer a defendant in this case, evi-
dently took no action on these letters. If he did do some-
thing, he never told the defendants about it or even the
fact that he had received these letters.
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
No. 06-2847 9
had testified against Lewis, and Omar and Wahdu were
“suspicious” because this was Dale’s fifth or sixth time
returning from a writ. Dale was not satisfied they bought
his story, either. From August 15 to September 22,
Dale visited Poston and White in their offices several
times, each time reminding them that he wanted a
transfer out of Terre Haute. Just like before, however,
Dale never “express[ed] any specific threat that would
make it dangerous or impossible for him to continue to
live in general population.” Nor did he identify any
particular inmate or group of inmates that was giving
him problems. Once more, Dale refused Poston and
White’s offers of detention in the SHU.
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 materi-
als, 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
10 No. 06-2847
was the one who would ultimately make an attempt
on Dale’s life. Barnes was telling other inmates that Dale
“done been to court several times and . . . shouldn’t be
allowed to stay.” Then Barnes began to loiter outside
Dale’s cell and give him menacing looks, prompting
Dale to seek assurances from elder Omar that Barnes
wouldn’t be a problem. Omar assured Dale that Barnes
would not harm him. Whether a lie or an innocent mis-
apprehension of his own ability to control Barnes, Omar’s
assessment proved false.
Things came to a head on September 22. Barnes ap-
proached 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 cooper-
ated, 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 liber-
ally. Haines v. Kerner, 404 U.S. 519, 520 (1972). But proce-
dural 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
2
“Hot” in this context refers to a “snitch.”
3
Apparently, Mr. Dale has made a full recovery.
No. 06-2847 11
for summary judgment. Dale filed a brief in opposition,
but the district court ignored it because it failed to
comply with a local rule. Designed to facilitate sum-
mary judgment, the rule mandates that a party opposing
a motion must “include a section labeled ‘Statement of
Material Facts in Dispute’ which responds to the movant’s
asserted material facts” and shows that issues of fact
remain for the jury. S.D. Ind. Local Rule 56.1(b). “These
facts shall be supported by appropriate citations to dis-
covery responses, depositions, affidavits, and other
admissible evidence . . . .” Id. The district court found
that Dale had contravened the rule because, although
he had included a sworn statement along with his op-
position brief, it was “argumentative” and “lack[ed]
detail.” Dale v. Poston, 2006 WL 1328724, *2 (May 11, 2006).
As a result, the court ignored Dale’s submission and
adopted the defendants’ statement of facts. This would
normally give us pause to inquire whether Dale was
given a fair shake, but his attorney tells us “[i]t is
counsel’s considered judgment that, even if the district
court erred in disregarding Dale’s submission, any
such error was harmless and does not require reversal.”
Upon this record, the district court held that no reason-
able jury could conclude that the defendants acted with
deliberate indifference.
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
12 No. 06-2847
law.” Fed. R. Civ. P. 56(c). The ultimate question is
whether “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
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 demon-
strated 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 re-
sponse 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
No. 06-2847 13
is a cobra there or at least that there is a high probability
of a cobra there, and do nothing, that is deliberate indif-
ference.” Billman v. Ind. Dep’t of Corrections, 56 F.3d 785,
788 (7th Cir. 1995). The precise identity of the threat, be
it a cobra or a fellow inmate, is irrelevant. A prison
official “cannot escape liability by showing that he did
not know that a plaintiff was especially likely to be as-
saulted by the specific prisoner who eventually com-
mitted the assault.” Mayoral v. Sheahan, 245 F.3d at 939.
On the other hand, as the vagueness of a threat
increases, the likelihood of “actual knowledge of im-
pending harm” decreases. See Fisher v. Lovejoy, 414 F.3d
659, 662 (7th Cir. 2005). So, too, does the official’s ability
to respond. The ultimate measure of the adequacy of the
response is therefore reasonableness in light of the sur-
rounding circumstances.
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 state-
ments 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
14 No. 06-2847
of facts from which they could draw an inference of
substantial harm, let alone evidence that they actually
drew that inference.
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 Con-
stitution 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
No. 06-2847 15
to protective custody but is usually somewhat reluctant
to do so because of the stigma attached to such a re-
quest.”). Yet, it’s undisputed that Dale could have re-
mained in protective custody if he wanted. With limited
social opportunities, that may not have been the most
pleasant of experiences, but it would have eliminated
the risk of an attack. Prison officials do not violate the
Eight Amendment because the mode of protection they
offer does not sit well with a prisoner. Rather, if they
offer reasonable protection from the threat, they have
done their duty.
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 differ-
ently—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
16 No. 06-2847
asked him for supporting details. See Grieveson, 538 F.3d
at 777 (affirming summary judgment in favor of prison
officials who did not make such an effort). We cannot
emphasize enough the prisoner’s responsibility to
furnish information in these situations, a responsibility
that Dale shirked.
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 indif-
ference; 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 Eight Amendment if they don’t segre-
gate 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
No. 06-2847 17
ensure the safety of these inmates. However, that only
proves the reasonableness of the defendants’ actions—they
offered to place Dale in protective custody. It’s a shame he
refused, but the defendants really can’t be blamed. And
even if they can, they were negligent at most. The Eighth
Amendment requires more than that. Duckworth v. Ahmad,
532 F.3d 675, 679 (7th Cir. 2008).
The judgment of the district court is A FFIRMED.
11-21-08