110 F.3d 520 (7th Cir. 1997), 95-2851, Doe v. Welborn

Docket Nº:95-2851.
Citation:110 F.3d 520
Party Name:John DOE [*], Plaintiff-Appellant, v. George C. WELBORN, Warden, Austin Randolph, Unit Manager, and M. Mifflin, Defendants-Appellees.
Case Date:April 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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110 F.3d 520 (7th Cir. 1997)

John DOE [*], Plaintiff-Appellant,

v.

George C. WELBORN, Warden, Austin Randolph, Unit Manager,

and M. Mifflin, Defendants-Appellees.

No. 95-2851.

United States Court of Appeals,Seventh Circuit.

April 11, 1997

Argued Dec. 4, 1996.

As Amended May 29, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied June 18, 1997.

Page 521

Lauren Robel, Cynthia Bauerly, Law Student (argued), Bloomington, IN, for plaintiff-appellant.

Paul Racette (argued), Office of Attorney General, Civil Appeals Division, Chicago, IL, for defendants-appellees.

Before RIPPLE, MANION, and DIANE P. WOOD, Circuit Judges.

MANION, Circuit Judge.

John Doe, a self-described prison snitch, alerted officials at the Menard Correctional Center that a prison gang had placed a "hit" on the Center's superintendent. On another occasion, he set fire to his cell to draw the officials' attention to an attempted prison escape by two gang members. Following each incident, the defendants placed Doe in protective custody for his own safety; they then transferred him to the Joliet Correctional Center less than two months after the thwarted escape. But during those two months, Doe claims he was threatened constantly (in his words, "terrorized") by gang members housed in nearby cells within the protective custody unit. He sued the prison officials under 42 U.S.C. § 1983, claiming that they violated his eighth amendment right to be free from cruel and unusual punishment principally by waiting two months before transferring him to another facility. After a bench trial, the magistrate judge entered judgment for the defendants on the

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ground that they were not deliberately indifferent to Doe's safety. We affirm.

I.

In February 1991, John Doe was an inmate at the Menard Correctional Center, a maximum security facility operated by the Illinois Department of Corrections. On February 6, correctional officers found a shank (homemade knife) under his bed. Two days later, Doe told correctional officers where they could find additional shanks and that certain inmates had placed a "contract" or "hit" on Menard's superintendent. Shortly afterward, the prison officials moved Doe into the protective custody unit, the most secure unit in the Menard facility.

On February 22, Doe was transferred to the segregation unit pending investigation of the shank incident. Three days later, on February 25, he started a fire in his cell to alert prison officials to an ongoing escape by two other inmates. Doe apparently had to argue with the correctional officers before they took him seriously, and it is possible that other inmates jailed nearby heard the argument. Doe convinced the officers he was telling the truth in time for them to catch the would-be escapees.

The correctional officials again considered Doe at risk for turning in other inmates. Accordingly, the officials returned Doe to protective custody on the same day as the attempted escape. In addition, the officials began the paperwork to transfer Doe to another maximum security institution. Doe remained in protective custody for less than two months when, on April 17, 1991, he was transferred to the Joliet Correctional Center, a facility typically used to house smaller, more vulnerable inmates.

In December 1991, Doe filed a pro se complaint under 42 U.S.C. § 1983. He named as defendants George C. Welborn, former warden at Menard, former superintendent Austin Randolph, and Officer Mark Mifflin. 1 The gist of Doe's complaint was that while he was in protective custody, the defendants violated his eighth amendment right to be free from cruel and unusual punishment by failing to protect him from a physical assault and verbal abuse on the part of other inmates. The district court appointed counsel to represent Doe, and the parties consented to trial before a magistrate judge.

Doe's trial testimony focused on an incident involving Corrections Officer Mifflin. Shortly after Doe was placed in protective custody, Mifflin approached him because he was playing his radio too loud in his cell. According to Mifflin, Doe asked the officer whether he knew who Doe was. Mifflin responded that Doe was the person who started the fire, but that he would receive no special privileges for doing so.

Doe claimed that Mifflin's reprimand was loud enough to be overheard by other inmates housed in the protective custody gallery. Indeed, according to Doe, other inmates must have heard the remarks because they began harassing him. They made threatening comments to him and threw things into his cell. According to Doe, at least one inmate physically assaulted him in the shower on March 21. However, the correctional officer who ran the shower line that day testified that no assault occurred. Other than the alleged shower assault, Doe conceded at trial that he suffered no injuries while in protective custody awaiting his transfer.

Following a two-day bench trial, the district court issued several findings of fact. Most significant for purposes of this appeal are these: on two separate occasions, the defendants transferred Doe to the protective custody unit, which was the most secure unit at Menard; after placing Doe in that unit a second time on February 25, 1991, the Menard officials immediately started the paperwork to transfer Doe to another facility; Doe's claim of a shower assault could not be substantiated by medical records and was contradicted by the officer who had operated the shower line; and from February 25 until

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his transfer on April 17, Doe was housed in the protective custody unit and was not assaulted. The court entered judgment for the defendants because the evidence established they were not deliberately indifferent to Doe's safety and security during his stay in protective custody.

On appeal, Doe has new counsel and, to some extent, a new emphasis. Gone is his claim that he was the victim of a physical assault. The district court determined that the single assault alleged by Doe at trial--the shower incident--could not be substantiated. We would overturn that finding only if it were clearly erroneous, Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), mainly because the district court was in a far better position to compare Doe's credibility with that of the officers who insisted the assault never occurred. It matters not: on appeal, Doe's new counsel do not ask us to overturn this...

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