102 F.3d 267 (7th Cir. 1996), 94-3806, Babcock v. White

Docket Nº:94-3806.
Citation:102 F.3d 267
Party Name:John C. BABCOCK, Plaintiff-Appellant, v. R.L. WHITE and G. McDaniel, Defendants-Appellees.
Case Date:December 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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102 F.3d 267 (7th Cir. 1996)

John C. BABCOCK, Plaintiff-Appellant,


R.L. WHITE and G. McDaniel, Defendants-Appellees.

No. 94-3806.

United States Court of Appeals, Seventh Circuit.

December 9, 1996

Argued May 15, 1996.

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Harold J. Krent (argued), Chicago-Kent College of Law, Chicago, IL, for Plaintiff-Appellant.

Thomas E. Kieper (argued), Office of the United States Attorney, Indianapolis, IN, for Defendants-Appellees.

Before CUDAHY, COFFEY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

John Babcock is living proof of the dangers that prison gangs pose to inmates, and of the logistical nightmare they create for prison administrators. Serving a thirty-five-year sentence at the United States Penitentiary at Leavenworth, Kansas, Babcock was stabbed seven times in an attack by members of a gang known as the Mexican Mafia. Following this assault, Babcock was transferred to the United States Penitentiary at Terre Haute, Indiana ("USP-Terre Haute")--a facility supposedly free of Mexican Mafia members. Upon his arrival, however, Babcock became afraid for his life when he discovered that he had not escaped the reaches of the gang. This suit, filed pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleges that prison officials at USP-Terre Haute violated his rights under the First, Fifth, and Eighth Amendments by their response (or lack thereof) to Babcock's pleas for protection. The United States District Court for the Southern District of Indiana granted the defendants' motion for summary judgment. We affirm in part, reverse in part, and remand for further proceedings.


Read in the light most favorable to Babcock, the record presents a troubling picture, one that tends to become obscured in the bureaucratic prison-speak with which the defendants meet his allegations. Following the attack on his life, the Bureau of Prisons ("BOP") classified Babcock as a "separation" case within the Central Inmate Monitoring ("CIM") System. See 28 C.F.R. §§ 524.70-524.78 (1992). The regulations in place at the time defined separation cases as "[i]nmates who may not be confined in the same facility with other specified individuals," 28 C.F.R. § 524.72(g) (1992), 1 and Babcock received notice to the effect that he would "not be housed with other specific individuals while in the custody of the Bureau of Prisons." The notice continued, "You require separation from the Disruptive Group, Mexican Mafia." In order to realize this separation, Babcock was transferred to USP-Terre Haute on July 14, 1992.

According to Babcock's complaint, USP-Terre Haute was not the haven he anticipated. Babcock claims that defendant White, the intake officer who interviewed him upon

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his arrival, informed him that USP-Terre Haute did indeed house members of the Mexican Mafia, "but mostly just a lot of 'wannabes' "--prisoners who aspired to gang membership. (The defendants now insist that there "were no active confirmed members of the Mexican Mafia located at USP-Terre Haute," although their own submissions concede that "there may be inmates housed at USP, Terre Haute, who are separated from these groups or who are sympathizers or 'wannabees'.") White nevertheless told Babcock to enter the general population with what, to Babcock, must have seemed rather glib advice: "Just keep your eyes open." That very same day, Babcock refused his assignment, preferring the more severe restrictions of administrative detention in a special housing unit to the certain harm that he believed he faced in the general population. The defendants emphasize that Babcock was not disciplined for refusing to enter the general population, but it does appear that his behavior provoked a Unit Discipline Committee ("UDC") hearing, which was suspended pending the outcome of a protective custody investigation. Babcock remained in administrative detention for the remainder of his stay at USP-Terre Haute.

The tradeoff between comfort and security, unpalatable as it was, did not materialize once Babcock moved to administrative detention. At the UDC hearing, conducted in mid-July, Babcock reported spotting two Mexican Mafia members in the recreation yard. 2 Later that month, defendant McDaniel, a unit manager and UDC member investigating Babcock's claim for protection, showed Babcock photographs of Hispanic inmates housed at USP-Terre Haute and asked him to identify the individuals he claimed to have seen. Babcock selected the picture of an inmate named "Vargas." Babcock asserts that McDaniel acknowledged at the time that this was the notorious Vargas we described as an active United States v. Silverstein, 732 F.2d 1338 (7th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985), and that Babcock's Vargas indeed sported a tattoo denoting membership in the Mexican Mafia. McDaniel denies that he ever made any such representation concerning Vargas's identity, and adds that the "Vargas" Babcock selected "was not a confirmed, active member of the Mexican Mafia." At this stage of the proceedings, we must assume that "Vargas" was the Vargas Babcock claims he was. This Vargas allegedly was housed only three cells away from Babcock, but Vargas's proximity was not the only reason for Babcock's concern. Babcock claims that he received threats from other inmates and that, on one occasion, scalding water was thrown into his cell. So afraid was Babcock that he remained in his cell during the one hour of recreation allowed prisoners in administrative detention.

Availing himself of BOP grievance procedures, Babcock repeatedly sought transfer to a facility free of Mexican Mafia members or affiliates--a request frustrated by the initial prison investigation's conclusion in July 1992 that Babcock should be classified as an "unverified protection case." Babcock claims that in October he handed McDaniel a letter, subsequently ignored, informing him of threats Babcock had received and requesting a meeting "about my protection needs." In November, the warden at USP-Terre Haute informed Babcock that he would be "continually housed in Administrative Detention until we are able to obtain information which would support the need for verified protection status." When, on one occasion, Babcock called McDaniel to his cell to ask why he had been placed in this state of limbo, McDaniel allegedly suggested, "Maybe you ought to stop filing all that shit," which Babcock understood as a reference to appeals he had made within the prison system and to lawsuits he had filed against the BOP. McDaniel's advice proved unsound, however, for in December 1992 Regional Director Ingram

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informed Babcock that he had asked "staff at Terre Haute to further evaluate your protection needs." On May 27, 1993, after more than ten months in administrative detention at USP-Terre Haute, Babcock was transferred to USP-Atlanta.

Babcock filed this suit against the BOP, White and McDaniel on August 26, 1993, seeking $35,000 in compensatory damages, $50,000 in punitive damages, and injunctive relief. His complaint alleged that the defendants exhibited deliberate indifference to his safety, in violation of the Eighth Amendment, by knowingly incarcerating him with members of the Mexican Mafia despite his classification as a separation case; that mandatory federal regulations created a protected liberty interest, under the Due Process Clause, in not being housed with members of the group that had sworn to kill him; and that the defendants, in violation of Babcock's First Amendment rights, retaliated against him for seeking redress within the prison system and the courts. On November 5, 1993, the district court dismissed Babcock's action against the BOP based on that entity's immunity from suit. The court also determined that, as a result of Babcock's transfer to Atlanta, it lacked jurisdiction to hear his claim for injunctive relief. On September 30, 1994, without permitting discovery, the district court dismissed Babcock's case in its entirety. In granting the defendants' motion for summary judgment, the court addressed itself only to the merits of Babcock's Eighth Amendment claim. As an alternative basis for dismissal, the court held that the defendants were entitled to the defense of qualified immunity. At the time Babcock filed his notice of appeal, he was a prisoner in Talladega, Alabama.


We review de novo the district court's grant of summary judgment and will affirm only if the record indicates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We of course read the record in the light most favorable to Babcock, the nonmoving party, and afford him the benefit of all reasonable inferences. See Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 257 (7th Cir.1996). Because there was no discovery below, the record consists primarily of pleadings and affidavits, along with certain correspondence relating to Babcock's appeals within the BOP's administrative grievance process. With these materials before us, we turn to Babcock's claims under the Eighth, Fifth, and First Amendment, respectively


Babcock's Eighth Amendment claim presents a unique situation. The danger to which he allegedly was exposed--attacks by Mexican Mafia members or "wannabes"--never materialized. Moreover, Babcock does not complain to this court of an ongoing violation of his constitutional rights: the district court dismissed Babcock's claim for injunctive relief for the very reason that he had been transferred from USP-Terre Haute by the time he filed suit, and Babcock does not appeal this ruling. This case thus squarely presents the question whether or not a federal prisoner who was not assaulted by, and who is no longer at risk from, fellow inmates may nevertheless maintain a Bivens claim for money damages...

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