McGill v. Duckworth

• Citation: 944 F.2d 344
• Decision Date: 17 September 1991
• Docket Number: Nos. 90-1845,90-1945,s. 90-1845
• Parties: , 20 Fed.R.Serv.3d 1247 Herbert F. McGILL, Plaintiff-Appellee/Cross-Appellant, v. Jack R. DUCKWORTH, et al., Defendants-Appellants/Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 344

944 F.2d 344

60 USLW 2217, 20 Fed.R.Serv.3d 1247

Herbert F. McGILL, Plaintiff-Appellee/Cross-Appellant, v. Jack R. DUCKWORTH, et al., Defendants-Appellants/Cross-Appellees.

Nos. 90-1845, 90-1945.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 20, 1991.

Decided Sept. 17, 1991.

Donald W. Pagos (argued), F. Parkerson, Sweeney, Dabagia, Donoghue & Thorne, Michigan City, Ind., for plaintiff-appellee.

Linley E. Pearson, Atty. Gen., David A. Arthur, Deputy Atty. Gen., Thomas D. Quigley (argued), Federal Litigation, Indianapolis, Ind., for defendants-appellants.

Before WOOD, Jr., CUDAHY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Prisons are dangerous places. Housing the most aggressive among us, they place violent people in close quarters. Those who have difficulty conforming to society's norms outside prison may find obedience no more attractive inside--and the threat of punishment for violence is diminished for one already serving a long term. Herbert McGill asks the federal courts to hold prison officials to answer for the injuries that their charges inflict on each other.

I

In 1983 McGill shot and killed (and then robbed) David Anderson. McGill pleaded guilty to voluntary manslaughter and robbery. He is serving a 27-year sentence in an Indiana prison. McGill was assigned to a cell in the general population and began to receive sexually suggestive notes and comments from other inmates. (McGill is slightly built, and word spread that the Anderson murder had homosexual overtones.) McGill asked to be moved to another institution; prison officials denied this request but moved McGill closer to the officers' station.

McGill was labelled a "snitch" after he testified against an inmate who assaulted a guard. He asked to be placed in protective custody after he was assaulted because of his testimony. Prison officials obliged; McGill was sent to one of the prison's segregation units, I Cellhouse ("IDU"). IDU houses not only inmates in need of protection but also those on disciplinary segregation status. These groups were placed in the same unit temporarily: another unit of the prison houses only inmates in protective custody, but there was no room at the time for McGill. Prisoners in IDU are locked in their cells at least 23 hours a day. They may spend the remaining hour as they wish. They may shower or go to the gym with other inmates. Alternatively they may arrange for individual time out of their cells (eliminating all risk of assault). The most timorous may choose to remain locked in their cells 'round the clock.

Soon after McGill arrived in IDU, two inmates on disciplinary status--Ausley and Halliburton--began harassing him through the bars of his cell. McGill asked prison officials to remove him from IDU because it wasn't what he expected; he did not tell them about the inmates' threats. (McGill did not want the guards to return him to the general population. He wanted, rather, to go to a protective-custody-only unit. But the prison could not accommodate that request without bumping another protective-custody inmate into the general population or the IDU.) On his third day in IDU, McGill was leaving his cell for a shower when Ausley approached him and made sexually suggestive comments. McGill continued on to the showers. Ausley and Halliburton followed McGill down the range, threatening him as they walked along. On the way McGill encountered two correctional officers--Webb and Jones. He spoke with the two briefly about some property McGill was trying to locate but did not ask them for help. Ausley and three other men entered the shower room as McGill shampooed his hair. While the three stood guard at the door, brandishing homemade knives, Ausley raped McGill in the anus after gagging him with a washcloth. (The defendants denied that a rape occurred, but the jury resolved that question adversely to them.) Ausley and the others then escorted McGill back to his own cell.

McGill sued four prison administrators (Gordon Faulkner, Cloid Shuler, Jack Duckworth, and Robert Bronnenberg) and four prison guards (Jeff Fisher, Jerry Jones, Jay Kirkpatrick, and Brian Webb) under 42 U.S.C. § 1983, maintaining that they violated the eighth amendment's prohibition of cruel and unusual punishment (applied to Indiana through the fourteenth amendment) and the due process clause of the fourteenth. He also presented a pendent claim of negligence under Indiana law. The case went to trial with six defendants after McGill dismissed guards Kirkpatrick and Fisher. At the close of McGill's evidence, the district court granted a directed verdict in favor of two administrators (Faulkner and Shuler) on all issues and a directed verdict in favor of the four remaining defendants on McGill's due process claim only. The jury returned a verdict in favor of McGill against Duckworth, Bronnenberg, and Webb on both the eighth amendment and negligence claims, while absolving Jones on all claims against him. Special verdict forms revealed that the jury awarded $10,000 on each of the constitutional and tort claims, raising the question whether the jury meant to award a total of $10,000 or $20,000. The district judge decided that the jury intended one $10,000 award for McGill's damages, and entered judgment on the eighth amendment claim alone. He rejected defendants' objections to the jury instructions and their request for judgment notwithstanding the verdict. 726 F.Supp. 1144 (N.D.Ind.1989).

II

Courts properly start with common law and statutory issues, seeking to avoid decision on constitutional questions. Doing so initially looks attractive here, for the district judge concluded that the jury meant to return a single $10,000 award, which could be supported on either state-law or constitutional grounds. Two considerations, however, require us to consider both the common law and constitutional issues. First, McGill's cross-appeal contends that the jury really awarded him $20,000, half on the constitutional question. Second, McGill wants an award of attorneys' fees under 42 U.S.C. § 1988 as the prevailing party on the constitutional claim. Defendants argue, and McGill agrees, that an award of fees is not possible under state tort law. We must therefore address both constitutional and common law theories of liability, and we start with the eighth amendment.

A

Ausley, who raped McGill, is not among the defendants. Indiana did not harm McGill; rather it failed to prevent harm. Although the Supreme Court has never held that the eighth amendment requires the state to protect prisoners from each other, the duty to do so is a logical correlative of the state's obligation to replace the means of self-protection among its wards. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Archie v. Racine, 847 F.2d 1211 (7th Cir.1988) (in banc). A state with a constitutional duty to attend to prisoners' medical problems, even though the problems are not of the state's creation, Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), has no lesser obligation to attend to the need for physical safety. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), although decided under the due process clause of the fourteenth amendment, assumes that the prison system may not ignore prisoners' risk of harm at the hands of other inmates.

A prisoner's interest in safety does not lead to absolute liability, however, any more than the state is the insurer of medical care for prisoners. Not only Estelle but also more recent cases such as Wilson v. Seiter, --- U.S. ----, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), and Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), hold that the eighth amendment has a mental component. The eighth amendment addresses only punishment. Whether an injury inflicted by fellow prisoners, or the pain of a medical condition, is "punishment" depends on the mental state of those who cause or fail to prevent it. If prison officials put McGill into the IDU so that a bigger inmate would have a better chance to rape him, then it is as if the officials inflicted that pain and humiliation themselves. Other mental states, including total indifference to risks, come so close to deliberateness that courts treat them alike. Thus judges speak, as in Estelle and Archie, of "deliberate indifference" or "recklessness" as the functional equivalent of intent. Although there are shadings of meaning here, total unconcern for a prisoner's welfare--coupled with serious risks--is the functional equivalent of wanting harm to come to the prisoner.

Once we equate "recklessness" with intent, however, it becomes important to give recklessness a definition that separates "punishment" (with which alone the eighth amendment is concerned) from the unwelcome injuries that occur when so many violent persons are locked up together. Wardens and guards do not desire these injuries, do not "intend" them in any useful sense. And although one could say that the state as an entity knows that intra-inmate violence is inevitable and intends the natural and probable consequences of its acts in confining prisoners, the state as entity is not a defendant here--and even if it were could not be held liable on this theory. In constitutional law there is a gulf between what a government intends and what it knows will happen. A state "intends" a consequence when it acts because of that effect; when it acts in spite of an effect it does not intend that effect. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). Common law courts have given the term "reckless" different meanings, depending on context, and these differences have consequences. We must select the meaning suited to the substantive constitutional provisions.

The instructions to the jury in this case came from Benson v. Cady, ...