Leiser v. Kloth

• Citation: 933 F.3d 696
• Decision Date: 01 August 2019
• Docket Number: No. 17-3378,17-3378
• Parties: Jeffrey D. LEISER, Plaintiff-Appellee, v. Karen KLOTH, Correctional Sergeant, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

933 F.3d 696

Jeffrey D. LEISER, Plaintiff-Appellee,

v.Karen KLOTH, Correctional Sergeant, et al., Defendants-Appellants.

No. 17-3378

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2018

Decided August 1, 2019

Rehearing and Rehearing En Banc Denied September 24, 2019^*

Barry Levenstam, Carla Jean Baumel, Clifford Berlow, Attorneys, JENNER & BLOCK LLP, Chicago, IL, for Plaintiff - Appellee.

Jody J. Schmelzer, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI, for Defendants - Appellants.

Before Easterbrook, Hamilton, and Scudder, Circuit Judges.

Hamilton, Circuit Judge.

Jeffrey Leiser was an inmate at the Wisconsin Stanley Correctional Institution where Sergeant Karen Kloth was employed. Leiser, who was later diagnosed with Post Traumatic Stress Disorder while at Stanley, alleged that beginning in 2013 he self-reported his disorder to Kloth and "informed" her not to stand directly behind him because doing so triggered his mental health symptoms. He claims Kloth did not comply with his request but instead increased the amount of time she stood behind him while patrolling common areas. Leiser filed this suit against Kloth, her supervisor, and the warden, claiming that Kloth’s behavior violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court denied the defendants’ motion for summary judgment after determining they were not entitled to qualified immunity because Leiser had a well-established right to be free from intentionally inflicted psychological harm. The defendants filed this interlocutory appeal, asking us to resolve the legal question of whether they were, in fact, entitled to qualified immunity. We reverse. Defendants are entitled to qualified immunity. At the relevant times, it did not violate clearly established constitutional law for non-medical correctional staff to refuse to provide a prisoner with what amounts to a medical accommodation that had not been ordered by medical staff and the need for which was not obvious to a layperson.

I. Facts

We construe the evidence in the light most favorable to Leiser as the non-moving party. See Lovett v. Herbert , 907 F.3d 986, 990 (7th Cir. 2018). At all times relevant, Jeffrey Leiser was an inmate in the custody of the Wisconsin Department of Corrections, housed at the Stanley Correctional Institution. Sergeant Karen Kloth was a correctional officer who worked in Leiser’s unit. Kloth reported to Unit Manager Paula Stoudt and in turn to Warden Reed Richardson.

Leiser was housed in Stanley’s mental health unit. He struggled with numerous mental health issues, including at times suicidal tendencies. Especially relevant to this case, the psychological services staff eventually diagnosed Leiser with Post Traumatic Stress Disorder ("PTSD") stemming from a sexual attack he suffered as a child. Leiser alleges that because of this attack, when someone stands directly behind him, he experiences flashbacks and may become angry, knock his head against a wall, break out in a sweat, yell, scream, and want to hurt whoever triggered the episode. Leiser told staff in the Psychological Services Unit he was experiencing PTSD symptoms as early as October 2014, but he was not diagnosed with the disorder until some time in the spring of 2015.

While at Stanley, Leiser met regularly with staff from the Psychological Services Unit. On March 30, 2015, he told his treating clinician that he could not tolerate people standing directly behind him and that his anxiety spiked when he was waiting in line for medications in the Health Services Unit. His psychiatrist then arranged for him to receive his medications directly from nursing staff, rather than after waiting in line, to avoid this discomfort. Leiser did not receive any other accommodation for his PTSD from the psychological staff. Stanley’s Psychological Services Unit does not inform correctional officers of an inmate’s clinical diagnosis if no accommodation is required.

At some point in 2013, well before his diagnosis, Leiser noticed that Sergeant Karen Kloth began standing behind him in common areas, close enough, he says, to trigger his PTSD. Leiser told Kloth that he suffered from PTSD and that he could not tolerate anyone standing so close behind him. Kloth responded by telling Leiser he would just have to "deal with it" because she could stand where she wanted.

After this exchange, Leiser claims, Kloth increased the amount of time she stood directly behind him. Leiser submitted declarations from three other inmates who testified that Kloth stood directly behind Leiser "every time" she worked and that she would stand behind him until he started shaking and sweating. Another inmate, Loren Leiser (Leiser’s brother) told Kloth that she should not stand behind Leiser because of his PTSD, explained his symptoms, and that it would be her fault if he "snapped on her." Leiser’s witnesses testified that after Kloth stood behind Leiser, he would dump his tray and retreat to his cell where he would shake, sweat, and talk to himself. Leiser indicated he began skipping meals when Kloth was on duty to avoid the risk of experiencing his PTSD symptoms.

Notes from treating clinicians say that Leiser was having problems with unit staff standing behind him, but they do not indicate he ever identified it was Kloth. Leiser eventually complained in writing about Kloth’s behavior to her supervisors, Stoudt and Richardson. Though the written complaints to Stoudt did not indicate Kloth was engaging in conduct which triggered his PTSD, the letter he wrote to Warden Richardson specifically requested that Kloth be prohibited from standing behind him for that reason. Neither Stoudt nor Richardson acted on these complaints.

Leiser sued under 42 U.S.C. § 1983 on November 30, 2015. Among other claims, Leiser alleged that Kloth was intentionally causing him psychological harm by repeatedly attempting to trigger his PTSD, which he said violated the Eighth Amendment’s prohibition against cruel and unusual punishments. He also sued Stoudt and Richardson for failing to protect him from Kloth’s behavior.

Following a mandatory screening of the in forma pauperis complaint under 28 U.S.C. § 1915A, the district court permitted Leiser to proceed on the Eighth Amendment claim against Kloth and failure-to-protect claims against Stoudt and Richardson. The defendants later moved for summary judgment. They argued that Kloth’s behavior did not rise to the level of cruel and unusual punishment, and even if it did, the evidence did not establish that the defendants knew that Leiser’s PTSD was triggered when Kloth stood behind him. Regardless, they argued, defendants were entitled to qualified immunity because if there was a constitutional violation, the legal rule was not clearly established at the time of Kloth’s alleged conduct.

The court denied the defendants’ motion for summary judgment, despite acknowledging it was not persuaded that Leiser met the requirements discussed in Calhoun v. DeTella , 319 F.3d 936, 939 (7th Cir. 2003), that is, evidence that Kloth’s actions were not done for a legitimate penological reason and were instead intended to humiliate and inflict psychological pain. The court held that a jury could find Kloth violated the Eighth Amendment when she increased the amount of time she spent standing behind Leiser after she learned of his PTSD. Regarding qualified immunity, the district court found that Leiser had a clearly established right to be free from intentionally inflicted psychological harm at the time of these events, making the defendants ineligible for qualified immunity. This interlocutory appeal followed.

II. Analysis

A. Appellate Jurisdiction

We have jurisdiction to hear this appeal because "a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ; see also, e.g., Johnson v. Jones , 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). We review the denial de novo , considering whether the defendants were entitled to qualified immunity when viewing the facts in the light most favorable to Leiser as the non-moving party. Howell v. Smith , 853 F.3d 892, 897 (7th Cir. 2017), citing Estate of Escobedo v. Bender , 600 F.3d 770, 778 (7th Cir. 2010).

Leiser contends we do not have jurisdiction because this appeal is really a "back-door effort" to contest facts, rather than to resolve an issue of law. "[A]n appellant challenging a district court’s denial of qualified immunity effectively pleads himself out of court by interposing disputed factual issues in his argument." Gutierrez v. Kermon , 722 F.3d 1003, 1010 (7th Cir. 2013) ; see also Gant v. Hartman , 924 F.3d 445, 451 (7th Cir. 2019) (dismissing officer’s appeal of denial of qualified immunity because his argument depended on disputed facts). For purposes of this appeal, however, appellants acknowledge that all issues of material fact must be resolved in Leiser’s favor and reviewed in a light most favorable to him. See Knox v. Smith , 342 F.3d 651, 657 (7th Cir. 2003) (defendant is not generally permitted to appeal denial of a summary judgment that involves mixed question of law and fact, "but where, as here, one side concedes the other’s facts as to what happened, it is a question of law").

Leiser argues that the appeal focuses on the disputed fact of Kloth’s intent, not a legal question, because the operative questions are whether Kloth stood behind Leiser knowing that this could trigger his PTSD and if so, whether this rose to the level of injury cognizable by the Eighth Amendment. Even framing the questions this way, we have jurisdiction. Appellants concede—and we assume—for purposes of summary judgment that Kloth did know her conduct could cause...