855 F.2d 442 (7th Cir. 1988), 87-1492, DeMallory v. Cullen

Docket Nº:87-1492, 87-1493.
Citation:855 F.2d 442
Party Name:Robert DeMALLORY, et al., Plaintiffs-Appellants, v. Timothy CULLEN, et al., [*] Defendants-Appellees.
Case Date:August 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 442

855 F.2d 442 (7th Cir. 1988)

Robert DeMALLORY, et al., Plaintiffs-Appellants,


Timothy CULLEN, et al., [*] Defendants-Appellees.

Nos. 87-1492, 87-1493.

United States Court of Appeals, Seventh Circuit

August 23, 1988

Argued June 10, 1988.

Page 443

[Copyrighted Material Omitted]

Page 444

Gary L. Starkman, Marc C. Smith, Arvey, Hodes, Costello & Burman, Chicago, Ill., for plaintiffs-appellants.

John J. Glinski, Asst. Atty. Gen., State of Wis., Dept. of Justice, Madison, Wis., for defendants-appellees.

Before BAUER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

BAUER, Chief Judge.

Plaintiff, Robert DeMallory, is an inmate at Wisconsin's Waupun Correctional Institute (WCI). On August 17, 1978, WCI authorities placed DeMallory in the WCI Adjustment Center, a maximum security facility within the prison that separates certain inmates from general population inmates, because of his alleged involvement in a disturbance at WCI. The Adjustment Center's surroundings are spartan, and its prisoners' activities are more restricted than those of general population inmates. On November 4, 1978, prison authorities released DeMallory from the Adjustment Center, but returned him on January 10, 1979, where he remained until February, 1988.

DeMallory originally brought two suits. In the first, DeMallory alleged that conditions of confinement in the WCI Adjustment Center amounted to cruel and unusual punishment. In the second, he argued that limitations on the legal resources available to Adjustment Center prisoners unconstitutionally restrict their access to the courts, thus violating their Fourteenth Amendment rights. Defendants, various government and prison officials, moved for summary judgment on both the conditions-of-confinement claim and the access-to-courts claim. DeMallory moved for summary judgment on the access-to-courts claim. After submitting the matter to a magistrate, the district court granted summary judgment on both of DeMallory's claims in favor of defendants. DeMallory appeals.


DeMallory first argues that conditions in the Adjustment Center constitute cruel and unusual punishment. His Eighth Amendment claim focuses primarily on the defendants' allegedly willful failure to protect him from the activities of other Adjustment Center inmates and the unsanitary conditions in the unit. He alleges that WCI officials knowingly housed mentally-ill inmates with the rest of the Adjustment Center population, that these inmates soil their cells and surrounding areas by throwing food, human waste, and other debris, and that these inmates have set "approximately 50 fires," that have resulted in the hospitalization of several inmates, including himself. He further alleges that the various defendants are personally responsible for the health and safety hazards, specifically, that WCI officials intentionally allowed the Adjustment Center to remain unsanitary and kept Adjustment Center windows locked despite repeated fires. Finally, DeMallory contends that a guard spit on him while he was housed in the Adjustment Center.

The district court granted summary judgment in favor of the defendants, holding that "there has been no competent evidence presented that the prison officials evidenced a deliberate indifference to DeMallory's medical needs, due to the inhalation of smoke, for a finding that his Eighth Amendment rights were violated." As for the spitting incident, the court ruled that "a correctional officer spitting upon a prisoner does not rise to the level of a constitutional violation." Id. at 3. We agree with the district court's disposition of those portions of DeMallory's Eighth Amendment claim that address the medical care given DeMallory and the spitting incident.

Page 445

Because the district court failed to address the primary thrust of DeMallory's complaint--that WCI officials have willfully allowed unsanitary and dangerous conditions to continue in the Adjustment Center, however, we reverse the order granting summary judgment and remand for further proceedings. "It has long been established that prisoners have rights under the Eighth Amendment to receive reasonable protection from harm inflicted by other inmates." Madyun v. Thompson, 657 F.2d 868, 875 (7th Cir.1981). Such a claim may be sustained only by a showing of deliberate indifference by prison officials; mere negligence is not enough. Duckworth v. Franzen, 780 F.2d 645, 652-55 (7th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Liability under the Eighth Amendment "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." Campbell v. Greer, 831 F.2d 700, 702 (7th Cir.1987).

The district court, without expressly saying so, apparently treated the defendants' motion for summary judgment on DeMallory's Eighth Amendment claim as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Only the plaintiff's complaint and the defendants' answers were before the court; no discovery was taken. In their answer to the complaint, the defendants asserted that they had insufficient information from which they could form an opinion with respect to the allegations and denied any unconstitutional conduct. By awarding summary judgment in this situation, the district court actually dismissed the case on the pleadings. In so doing, the district court failed to follow the basic standard governing Rule 12(b)(6) dismissals.

"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Moreover, in "complex cases involving both fundamental rights and important questions of public policy, such peremptory treatment is rarely appropriate." Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th Cir., 1988) (Ripple, J., concurring in part, dissenting in part). In this case, the district court did not read DeMallory's Eighth Amendment claim in this light. Rather, by focusing on only two incidents alleged in the complaint, the court failed to consider the complaint as a whole and seemingly ignored the more pressing issues alleged by DeMallory.

DeMallory's conditions-of-confinement complaint, taken as true, as it must for purposes of a motion to dismiss, states a claim on which relief can be granted. The Supreme Court has emphasized that "[n]o static 'test' can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' " Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citation omitted). See also Smith v. Fairman, 690 F.2d 122, 125 (7th Cir.1982), cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). In all cases, the determination as to whether prison conditions constitute cruel and unusual punishment turns on the totality of the conditions of confinement. Madyun, 657 F.2d at 874; see also Smith, 690 F.2d at 125 (quoting Madyun ). Not surprisingly, suits challenging the sanitation and safety of prisons have received varying treatment by federal courts. This court has repeatedly stressed that the Eighth Amendment requires prison officials to maintain minimal sanitary and safe prison conditions and we have not hesitated to award damages to inmates when prison conditions have fallen below the threshold of decency ensured by the Eighth Amendment. See, e.g., Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.1988) (Eighth Amendment requires at least five hours of exercise and one shower each week for inmates segregated more than ninety days); Wells v. Franzen, 777 F.2d 1258 (7th Cir.1985) (Eighth Amendment requires minimal exercise, showers, clothing, and

Page 446

sanitary eating conditions). We therefore reverse the judgment of the district court and remand the case for further consideration.


DeMallory next argues that restrictions on library access for prisoners in the Adjustment Center preclude their effective access to the courts. Prisoners in the Adjustment Center may not go to the prison library, may not confer personally with WCI's inmate paralegals, and may not participate in the legal training and services offered through the WCI paralegal program. The Adjustment Center prisoners may check out books from the legal library by written request and may consult paralegals by correspondence. They also may confer with each other during exercise periods and seek some legal assistance through public defenders, court-appointed counsel, private attorneys, or Wisconsin's Legal Assistance to Institutionalized Persons (LAIP) Program. A set of 1969 Wisconsin statutes is also available to the inmates housed in the Adjustment Center. The record includes several memoranda in which WCI officials acknowledge that they are "aware of the problem of legal assistance for those inmates in segregation status," but no solution appears forthcoming.

A prison inmate's right of access to the courts is the most fundamental right he or she holds. "All other rights of an inmate are illusory without it, being entirely dependent for their existence on the whim or caprice of the prison warden." Adams v. Carlson, 488 F.2d 619, 630 (7th Cir.1973). In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court held that the constitutional right of access to the courts "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law...

To continue reading