Gruenberg v. Gempeler

Decision Date26 September 2012
Docket NumberNo. 10–3391.,10–3391.
Citation697 F.3d 573
PartiesDarrin GRUENBERG, Plaintiff–Appellant, v. Debra GEMPELER, Captain, et al., Defendants–Appellees.
CourtU.S. Court of Appeals — Seventh Circuit


Leigh C. Bonsall (argued), Attorney, Hinshaw & Culbertson, Chicago, IL, for PlaintiffAppellant.

Jody J. Schmelzer (argued), Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for DefendantsAppellees.

Before EASTERBROOK, Chief Judge, and FLAUM and MANION, Circuit Judges.

MANION, Circuit Judge.

While incarcerated for burglary, Darrin Gruenberg seized a set of keys from a prison security guard and swallowed them. He was taken to a hospital, where an x-ray showed that the keys were lodged in his abdomen. A physician told the prison officials that Gruenberg would probably pass the keys naturally within five days. They returned him to the prison and kept Gruenberg naked and in restraints for five days until he passed the keys. After five days, Gruenberg had not yet passed them and surgery was needed to remove them. Gruenberg sued the officials, claiming they violated his Eighth Amendment right to be free from cruel and unusual punishment by keeping him restrained for five days. The district court granted summary judgment in favor of the defendants, and because the officials have qualified immunity, we affirm.


On April 19, 2006, a security officer at Waupun Correction Institution (“Waupun”) was administering medication to a prisoner, Darrin Gruenberg, 1 when Gruenberg pulled the officer's arm inside his cell and grabbed the officer's key ring. The key ring held three keys: a handcuff key, a key to activate cell doors, and a key for the padlock on waist restraints. The officer ordered Gruenberg to return the keys, but Gruenberg exclaimed, “watch this,” and proceeded to place each key into his mouth and then swallow each one.

This set off a security alert in the prison, and the warden was immediately notified. Gruenberg was taken to the emergency room at Waupun Memorial Hospital for x-rays to determine the location of the keys. The x-ray confirmed that they were in his abdomen. The physician who treated Gruenberg believed that the keys would pass through his system within five days if Gruenberg took medication to help them pass. Gruenberg agreed to take the medication, and was returned to Waupun.

The warden, the prison's medical staff, and the prison's security staff developed a protocol for Gruenberg until the keys passed through his system. Gruenberg was placed in Waupun's Health and Segregation Complex (“HSC”), the unit that houses inmates with pending disciplinary hearings for rule violations, who have been found guilty of rules violations, or who are in administrative confinement. During his confinement in the HSC, which lasted five days, he was kept naked and restrained for approximately 22 to 23 hours per day. Specifically, Gruenberg was restrained in a chair during the day for twelve hours, and restrained to a bed for twelve hours during the evening. 2 The prison officials thought it was necessary to keep Gruenberg restrained to prevent him from re-swallowing the keys after he had passed them. 3 Twice per shift, on the first and second shifts, Gruenberg was released from the chair or bed and allowed to walk for 30 minutes.

During the five-day period, Gruenberg complained of being cold and repeatedly asked for a blanket.4 This request was denied because, the prison officials asserted, a blanket would restrict the view of security staff who monitored Gruenberg to ensure he was breathing. The prison staff also thought it was necessary to monitor any possible expulsion of the keys from Gruenberg, as one of the keys he swallowed was a master key that would open any restraint used in the prison and another key could open any cell door in the prison. Gruenberg was fed “nutri-loaf” (a sort of nutritional food loaf which does not require utensils to eat) while restrained, and was denied permission to brush his teeth or wash his hands (but was permitted to shower once). Gruenberg also complained that he was forced to lie in his own feces on two occasions, despite the officials' assertion that Gruenberg was allowed to use the bedpan and urinal whenever he asked to do so.

The security staff checked on Gruenberg every 15 minutes while he was restrained, and nurses from the prison's Health Services Unit checked his condition every four hours. The HSC's clinical staff also saw him regularly. All told, during the five-day period Gruenberg was restrained he was checked by nurses 31 times and assessed by the clinical staff nine times. He was also visited by the Waupun Psychological Services Staff each day, who noted in several reports that Gruenberg was frustrated by the situation but remained cooperative.

By April 24 (the fifth day), Gruenberg was experiencing pain in his lower spine, tailbone, buttocks, and joints. He developed cuts and raw skin on his wrists and ankles from the restraints. He was taken to the hospital for another x-ray, which revealed that the keys had not moved from his abdomen. The prison staff then determined that Gruenberg no longer needed to be restrained because it was unlikely that he would be able to pass the keys naturally. He was placed in a “dry cell” in the prison's Health Services Unit (a dry cell being one in which the water has been turned off so that the toilet does not flush). The health services staff could monitor Gruenberg in this cell and, being isolated, it was impossible for Gruenberg to pass the keys to another inmate if he were to expel them naturally. Additional security staff were assigned to sit outside Gruenberg's cell to monitor his bowel movements to determine if the keys passed.

The keys did not pass, and on April 26, Gruenberg was again taken to the hospital where he underwent an endoscopy and colonoscopy to remove the keys. The endoscopy procedure successfully removed two of the keys, but the third key (the padlock key) remained in his body. Finally, on May 4, Gruenberg passed the remaining key naturally.

Gruenberg filed a pro se suit against some 25 staff members and officials at Waupun on May 5, 2009, asserting that the defendants violated his Eighth and Fourteenth Amendment rights under 42 U.S.C. § 1983. Gruenberg also filed a motion requesting the appointment of counsel. On August 24, 2009, the district court denied Gruenberg's request for counsel, finding that Gruenberg demonstrated his “ability to petition this court for redress of his grievances.” On December 17, 2009, the defendants filed a motion for summary judgment, and on September 30, 2010, the district court granted summary judgment in favor of the defendants on all claims. The district court ruled that a trier of fact could find that Gruenberg's Eighth Amendment rights were violated, but held that the doctrine of qualified immunity shielded the defendants from suit. Gruenberg's Fourteenth Amendment procedural due process claim was dismissed on the grounds that it was “better conceptualized under the Eighth Amendment,” see Bowers v. Pollard, 345 Fed.Appx. 191, 196 (7th Cir.2009), not the Fourteenth Amendment. Gruenberg appealed in February 2011, and in June 2011 we determined that counsel should be appointed to represent Gruenberg on appeal. We issued an order striking the previously-filed briefs, and Gruenberg, now represented by counsel, filed his appeal in November 2011.


We review the district court's grant of summary judgment de novo. Int'l Union v. ZF Boge Elastmetall LLC, 649 F.3d 641, 646 (7th Cir.2011). In considering the district court's grant of summary judgment, we construe all facts and draw all inferences in favor of Gruenberg, and will affirm if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.

Gruenberg argues that because he was kept immobilized, naked, cold, and in pain for five days, the defendants deprived him of basic human needs and violated his clearly established rights under the Eighth Amendment. The defendants counter that the novelty of Gruenberg's situation and his past history of being a difficult prisoner necessitated restraining Gruenberg, that the unique circumstances presented by Gruenberg's situation demonstrate that none of the defendants could have been on notice that they were violating a clearly established constitutional right, and that the district court properly found that none of the defendants acted with deliberate indifference to Gruenberg's needs. Thus, they argue, the district court correctly applied qualified immunity.

We review the validity of a qualified immunity defense de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Qualified immunity shields government officials from liability under Section 1983 “for actions taken while performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.” Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th Cir.2000). It protects “all but the plainly incompetent or those who knowingly violate the law.... If officers of reasonable competence could disagree on the issue [of whether or not an action was constitutional], immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). To defeat a claim of qualified immunity, Gruenberg must show that the defendants violated a constitutional right and demonstrate that the right in question was clearly established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 201–02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Thus, when analyzing a qualified immunity defense, courts consider whether the alleged facts demonstrate a constitutional violation, and whether the constitutional right was clearly established. Pearson v. Callahan, 555...

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