Shane Kervin v. La Clair Barnes , 787 F.3d 833 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2983
SHANE KERVIN,
Plaintiff-Appellant,
v.
LA CLAIR BARNES, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:14-cv-00379-JTM-CAN — James T. Moody, Judge.
____________________
SUBMITTED APRIL 14, 2015 — DECIDED MAY 29, 2015
____________________
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Shane Kervin, an inmate of an In-
diana prison, appeals the dismissal of his suit in which, in-
voking 42 U.S.C. § 1983, he alleges that prison officials vio-
lated his constitutional rights because of his insisting on be-
ing allowed to see his lawyer, who had come to the prison to
speak with him. He contends that he was placed in segrega-
tion as punishment for insisting on keeping his appointment
with the lawyer and denied his right to due process of law
2 No. 14-2983
when his attempts to seek redress through the prison’s
grievance system for his wrongful punishment were thwart-
ed by biased grievance officers. The district judge dismissed
the suit on the pleadings.
A prison guard forbade Kervin to enter the prison’s visit-
ation room to meet with his lawyer. (We’ve not been told the
purpose of the meeting.) The guard relented after some
minutes and permitted the meeting, but according to Kervin
told him he’d write up a false report and have him placed in
segregation. And indeed it appears that Kervin was forced to
serve up to 30 days in segregation and temporarily (we do
not know for how long) denied telephone and commissary
privileges—punishments that he says he was unable to avert
because of the hostility to him of the prison’s grievance of-
ficers.
The district judge gave Kervin two opportunities to
amend his complaint in order to clarify his claims, but was
dissatisfied with Kervin’s response and after screening the
complaint pursuant to 28 U.S.C. § 1915A for nonfrivolous
claims ruled that Kervin had failed to state a valid claim. The
complaint itself alleged that despite the guard’s threat to file
a false report Kervin had been punished for defying the
guard’s order by asking to be let out of the day room to meet
with his lawyer after being told that he could not leave the
room just yet. So either the guard did not file a false report
despite his threat to do so or the report was disregarded, for
by Kervin’s own account it was not the basis of his punish-
ment—his backtalk was. And backtalk by prison inmates to
guards, like other speech that violates prison discipline, is
not constitutionally protected. Ustrak v. Fairman, 781 F.2d
573, 580 (7th Cir. 1986) (“We can imagine few things more
No. 14-2983 3
inimical to prison discipline than allowing prisoners to
abuse guards and each other. The level of violence in Ameri-
can prisons makes it imperative that the authorities take ef-
fective steps to prevent provocation”); see also Watkins v.
Kasper, 599 F.3d 791, 799 (7th Cir. 2010); Bridges v. Gilbert, 557
F.3d 541, 551 (7th Cir. 2009); Gee v. Pacheco, 627 F.3d 1178,
1187–88, 1191 (10th Cir. 2010).
Kervin further argues that he was punished not for his
insubordinate speech but rather for meeting with, and pre-
sumably talking to, his lawyer, which he also claims was
protected speech. But we aren’t told anything about the law-
yer’s meeting with Kervin, and so we don’t know whether it
involved any protected speech.
As for Kervin’s due process claim, the judge ruled that
neither the loss of privileges was a severe enough sanction,
nor his time in segregation long enough, to deprive him of
any liberty protected by the due process clause of the Four-
teenth Amendment.
The judge further ruled that Kervin’s claim against the al-
legedly hostile grievance officers failed because they had not
blocked him from pursuing his grievances in court. The
Prison Litigation Reform Act does not require a state to cre-
ate a grievance procedure for its prison inmates, 42 U.S.C.
§ 1997e(b), though if it does yet prevents a prisoner from uti-
lizing it he will be excused from having to exhaust the griev-
ance process as a prerequisite to suing in federal court on the
ground that the grievance is of federal constitutional magni-
tude. Kaba v. Stepp, 458 F.3d 678, 684–86 (7th Cir. 2006). But
the inadequacies of the grievance procedure itself, as distinct
from its consequences, cannot form the basis for a constitu-
tional claim. Bridges v. Gilbert, supra, 557 F.3d at 555;
4 No. 14-2983
Grieveson v. Anderson, 538 F.3d 763, 772–73 (7th Cir. 2008);
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
The district judge rejected Kervin’s complaint about the
grievance proceedings not because of Kervin’s ability to liti-
gate his grievance, however, but rather because his stints in
segregation and denial of telephone and commissary privi-
leges were, the judge decided, neither “atypical” nor “signif-
icant,” hence not “a dramatic departure from the basic con-
ditions of [the prisoner’s] sentence.” And so, consistently
with Sandin v. Conner, 515 U.S. 472, 484–85 (1995), from
which we’ve been quoting, Kervin hadn’t been deprived of
liberty.
The Supreme Court has noted that “in Sandin’s wake the
Courts of Appeals have not reached consistent conclusions
for identifying the baseline from which to measure what is
atypical and significant in any particular prison system. This
divergence indicates the difficulty of locating the appropri-
ate baseline.” Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (ci-
tations omitted). Compare Beverati v. Smith, 120 F.3d 500, 504
(4th Cir. 1997), which thought disgusting conditions of ad-
ministrative segregation not to be actionable because they
had lasted for “only” six months, with Hatch v. District of Co-
lumbia, 184 F.3d 846, 858 (D.C. Cir. 1999), holding that 29
weeks (a shade over six months) in administrative segrega-
tion could be actionable even though the conditions of seg-
regation, although restrictive, were not unsanitary or other-
wise disgusting, id. at 854—were not, as alleged in Beverati,
“infested with vermin,” “smeared with human feces and
urine,” “flooded with water from a leak in the toilet on the
floor above,” etc. 120 F.3d at 504. Wilkerson v. Goodwin, 774
F.3d 845, 853 (5th Cir. 2014), and Brown v. Oregon Department
No. 14-2983 5
of Corrections, 751 F.3d 983, 988 (9th Cir. 2014), sensibly sug-
gest that the severity of treatment should be combined with
its duration in assessing the gravity of the conditions com-
plained of by the prisoner. See also Keenan v. Hall, 83 F.3d
1083, 1089 (9th Cir. 1996). But this need not imply that a rigid
six-month period of inhuman confinement is a condition
precedent to a deprivation of a prisoner’s constitutionally
protected liberty.
Marion v. Radtke, 641 F.3d 874, 876 (7th Cir. 2011), points
out that that “the right comparison is between the ordinary
conditions of a high-security prison in the state, and the
conditions under which a prisoner is actually held.” That
doesn’t say a great deal, however, because the critical ques-
tion is how far the treatment of the complaining inmate de-
viates from those ordinary conditions. And what if the in-
mate is an elderly person convicted of a nonviolent crime
such as bank fraud and serving his prison term in a mini-
mum-security prison; wouldn’t it be “atypical” and “signifi-
cant” for him to be sent to a high-security prison for a trivial
disciplinary infraction?
Meachum v. Fano, 427 U.S. 215 (1976), contains language
to the effect that moving a prisoner from a lower-security to
a higher-security prison does not deprive him of liberty pro-
tected by the due process clause. But that was a case in
which prisoners were transferred because they were sus-
pected of having committed arson in the lower-security
prison. They had to be transferred, to protect the inmates and
staff of the lower-security prison. It would be a mistake to
extrapolate from those facts a rule that allowed a prisoner to
seek relief for being placed in solitary confinement in his
prison but never for being transferred from a prison in
6 No. 14-2983
which he hadn’t been in solitary confinement to one in
which all prisoners are in solitary (or the common 23-hour
approximation thereto), as at ADX, the federal “Supermax”
prison in Florence, Colorado.
The judge made two errors in finding that Kervin could
not establish a violation of the Sandin standard, though they
were not consequential. The first was to evaluate separately
the gravity of each punishment meted out to him, thereby
failing to assess the aggregate punishments inflicted. We
said in Marion v. Columbia Correctional Institution, 559 F.3d
693, 699 (7th Cir. 2009), that “we must take into considera-
tion all of the circumstances of a prisoner’s confinement in
order to ascertain whether” he has been deprived of liberty
within the meaning of the due process clause. The judge’s
second error was to suggest, echoing the Beverati decision,
that a prisoner must spend at least six months in segregation
before he can complain about having been deprived of liber-
ty without due process of law. A considerably shorter period
of segregation may, depending on the conditions of con-
finement and on any additional punishments, establish a vi-
olation, as held in such cases as Palmer v. Richards, 364 F.3d
60, 65–67 (2d Cir. 2004) (77 days); Mitchell v. Horn, 318 F.3d
523, 527, 532–33 (3d Cir. 2003) (90 days); and Gaines v.
Stenseng, 292 F.3d 1222, 1225–26 (10th Cir. 2002) (75 days).
Six months is not an apt presumptive minimum for es-
tablishing a violation. Judges who lean toward such a pre-
sumption may be unfamiliar with the nature of modern
prison segregation and the psychological damage that it can
inflict. Segregation isn’t just separating a prisoner from one
or several other prisoners. As noted by the Supreme Court in
the Wilkinson case, “almost all human contact is prohibited,
No. 14-2983 7
even to the point that conversation is not permitted from cell
to cell; the light, though it may be dimmed, is on for 24
hours; exercise is for 1 hour per day, but only in a small in-
door room.” 545 U.S. at 223–24. The serious psychological
consequences of such quasi-solitary imprisonment have
been documented. See, e.g., Elizabeth Bennion, “Banning the
Bing: Why Extreme Solitary Confinement is Cruel and Far
Too Usual Punishment,” 90 Indiana Law Journal 741 (2015);
Stuart Grassian, “Psychiatric Effects of Solitary Confine-
ment,” 22 Washington University Journal of Law & Policy 325
(2006); Craig Haney & Mona Lynch, “Regulating Prisons of
the Future: A Psychological Analysis of Supermax and Soli-
tary Confinement,” 23 N.Y.U. Review of Law & Social Change
477 (1997).
Kervin, however, was placed in segregation for at most
30 days and, more importantly, does not allege that he suf-
fered any significant psychological or other injury from it. So
the judge was right to dismiss his suit. But we take this op-
portunity to remind both prison officials and judges to be
alert for the potentially serious adverse consequences of pro-
tracted segregation as punishment for misbehavior in prison,
especially the kind of nonviolent misbehavior involved in
the present case.
AFFIRMED.