Dale v. Poston

• Decision Date: 21 November 2008
• Docket Number: No. 06-2847.,06-2847.
• Citation: 548 F.3d 563
• Parties: Curtis L. DALE, Plaintiff-Appellant, v. Pamela POSTON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

548 F.3d 563

Curtis L. DALE, Plaintiff-Appellant, v. Pamela POSTON et al., Defendants-Appellees.

No. 06-2847.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2008.

Decided November 21, 2008.

Andrew C. Adair (argued), Mayer Brown, Washington, DC, for Plaintiff-Appellant.

Gerald A. Coraz, Thomas E. Kieper, Shelese M. Woods (argued), Office of the United States Attorney, Indianapolis, IN, for Defendants-Appellees.

Before POSNER, RIPPLE, and EVANS, Circuit Judges.

EVANS, 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.

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 administrative 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 exhaustion] 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 administrative remedies. The jury determined that the defendants had not met their burden. Accordingly, the case proceeded on to the merits of Dale's claims. In 2006, the district court granted the defendants' motion for summary 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 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 penitentiary 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 testificandum, 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 completed. The record is not entirely clear on this point, but it appears that prison officials will not remove an inmate from the SHU even if his fears are completely unfounded. The purpose of the investigation is to determine 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 authorities 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 population." 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 enforcement 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 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 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 undisputed that, absent a verifiable threat, Dale's "custody classification score" required him to be at a maximum-security facility like Terre Haute.

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 questions," 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 designation 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 permanently), 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...