Campbell v. Greer

• Decision Date: 19 November 1987
• Docket Number: No. 86-2256,86-2256
• Parties: , 23 Fed. R. Evid. Serv. 1170 Rudolph V. CAMPBELL, Jr., Plaintiff-Appellant, v. James GREER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 700

831 F.2d 700

56 USLW 2170, 23 Fed. R. Evid. Serv. 1170

Rudolph V. CAMPBELL, Jr., Plaintiff-Appellant, v. James GREER, et al., Defendants-Appellees.

No. 86-2256.

United States Court of Appeals, Seventh Circuit.

Argued April 20, 1987.

Decided Sept. 9, 1987.

Rehearing and Rehearing En Banc Denied Nov. 19, 1987.

James S. Whitehead, Sidley & Austin, Chicago, Ill., for plaintiff-appellant.

William Frazier, Asst. Ill., Atty. Gen., Patricia Rosen, Ill. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and WILL, Senior District Judge. ^*

POSNER, Circuit Judge.

Rudolph Campbell, an inmate at the Illinois state prison at Menard, appeals from a judgment for the Illinois prison officials and guards whom Campbell sued under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. Sec. 1983. The suit charged them with having deprived Campbell of his right to be free from cruel and unusual punishments, a right granted federal prisoners by the Eighth Amendment and extended to state prisoners by interpretation of the Fourteenth Amendment. By consent of the parties, the trial was conducted before a federal magistrate. Campbell and his witnesses (inmates all) testified that he had learned he was the target for a "hit" by other inmates and had requested the defendants to be sure to leave his cell on "deadlock," but that they had neglected to do so and, as a result, when the cells were opened from a centrally located locking-and-unlocking station the "hit men" entered his cell and stabbed him repeatedly. To "deadlock" a cell so that it remains locked when the master switch is thrown open requires the guard to turn a second lock in the door, and this wasn't done. The defendants did not deny the stabbing but said that Campbell had never asked any of them to deadlock his cell. The jury brought in a verdict for the defendants. Campbell wants a new trial. He says that the instructions were erroneous and that the defendants' counsel should not have been allowed to bring out, in cross-examining him, the fact that he was in Menard as a result of having been convicted of rape.

The magistrate gave the following instruction (we have corrected the punctuation slightly), to which Campbell objects:

In order for plaintiff to prevail it must be shown that defendants actually intended to deprive him of reasonable protection, or that defendants acted with deliberate indifference to plaintiff's legitimate need for protection. When I use the phrase "deliberate indifference" I mean conduct which intentionally or deliberately or recklessly ignores any person's constitutional rights. Deliberate indifference is established only if there is actual knowledge of impending harm rather than a mere suspicion that plaintiffs would be assaulted and [if] the defendants consciously and culpably refused to take steps to prevent this assault.

Mere negligence or inadvertence does not constitute deliberate indifference.

We find no error in this instruction, though we would prefer to have seen it worded less legalistically, with shorter sentences and less reliance on words that are not a secure part of most people's vocabulary, such as "culpable." But if jury instructions had to be in Basic English to pass muster on appellate review, few jury verdicts would be upheld.

The instruction follows closely the standard we announced in Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir.1985). See also Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1094 (7th Cir.1986). In Duckworth a prisoner had been killed and several seriously injured when a prison bus caught fire and the prisoners' egress was impeded by measures that had been taken to make the bus secure. In reversing a judgment for the plaintiffs we said that the prison officials who were responsible for those measures would not have been liable even if they had been negligent or even grossly negligent in failing to foresee the danger of a fire and strike a reasonable balance between that danger and the danger of an escape. Negligence, and a fortiori gross negligence, would be enough for ordinary tort liability but the Eighth Amendment is not a tort statute. Liability under the Eighth Amendment requires punishment, and punishment requires more than negligence, whether ordinary or gross. It requires, at a minimum, that the prison officials have realized there was imminent danger and have refused--consciously refused, knowingly refused--to do anything about it. The Supreme Court quoted our Duckworth standard with apparent approval in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986).

The defendants in this case likewise could not be held liable unless they were shown to have had "actual knowledge of impending harm" and to have "consciously and culpably refused to take steps to prevent" it from occurring, as the instruction stated. If Campbell had told the prison staff that he was the target of a "hit" and his cell should therefore be placed on "deadlock" (the standard protective measure in such a case, as the defendants concede), and the staff misunderstood or forgot or inadvertently deadlocked the wrong cell or disbelieved him or got the time wrong, these facts might demonstrate negligence or even gross negligence but would not be "punishment" as we defined it in Duckworth v. Franzen. Only if the defendants believed that Campbell was in serious danger and they decided to do nothing would they be liable. That was indeed a possible interpretation of the facts. If the jury had thought that Campbell and his witnesses were telling the truth, it could have concluded that the defendants must have known of the danger to him and must have deliberately refused to do anything about it. It is not unknown for guards to take a strong dislike to a particular prisoner even to the point of refusing to take measures to protect him from a "hit"; he might be unpopular among his fellow inmates for the same reasons he is unpopular among the guards. Guards who do this are reckless (or worse) in the criminal or quasi-criminal sense that we said in Duckworth v. Franzen is the only sense of recklessness that is relevant to liability for inflicting cruel and unusual punishments. Punishment is not an accidental act.

Although we think the instruction was correct, we add that this is not a case in which the nuances of the instructions were likely to spell the difference between victory and defeat for the plaintiff. The jury believed either the plaintiff and his witnesses, or the defendants. The former testified to Campbell's having repeatedly warned the defendants of his peril; if the jury believed them it was quite likely to infer intentional or reckless misconduct from the defendants' failure to take the standard simple precaution of deadlocking his cell. If instead the jury believed the defendants, it would exonerate them from any wrongdoing, since they testified that Campbell never told them he was in danger. The essence of this case was credibility, not instructions.

But this point merely brings to the fore Campbell's second ground for a new trial--the use of his rape conviction to impeach his credibility as a witness. This ground requires us to consider the vexing question of the proper use of a criminal conviction to impeach a witness in a civil trial. Discussed at length--but without conclusion--in Christmas v. Sanders, 759 F.2d 1284, 1289-91 (7th Cir.1985), it is a question of first impression in this circuit. For a comprehensive and up-to-date discussion see Note, Prior Convictions Offered for Impeachment in Civil Trials: The Interaction of Federal Rules of Evidence 609(a) and 403, 54 Fordham L.Rev. 1063 (1986).

The use of prior convictions to undermine the confidence of the trier of fact that a witness is telling the truth is addressed in Rule 609(a) of the Federal Rules of Evidence, which provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

Campbell's first submission is that subsection (1) of this rule required the magistrate, before admitting the evidence of Campbell's conviction for rape, to balance its prejudicial effect against its probative value. We disagree. The rule requires such balancing only when there is prejudicial effect "to the defendant," and Campbell is the plaintiff. If the defendant is not prejudiced, and the evidence otherwise satisfies the requirements of the rule, it is admissible, period; at least that is what the rule seems to say. Campbell argues that it would be absurd to read the rule literally, for that would allow a defendant in a civil case, but not a plaintiff, to complain about the use of his criminal record to impeach. That would indeed be absurd. It would load the dice in favor of defendants in civil cases, even though it is often a matter of happenstance in a civil suit which party is plaintiff and which defendant. As is true of many rules and statutes, Rule 609(a) can't mean what it says. It needs some judicial patchwork. We merely disagree with Campbell's suggested patch, which would require a balancing of probative value and prejudicial effect with regard to every witness in every federal trial, civil and criminal, whose testimony the opposing party wanted to impeach with a conviction.

An interpretation of the rule that is more in keeping with its background and legislative history is that the only witness who may demand a balancing of the prejudicial value of his criminal record against its...