Norman v. Schuetzle

• Decision Date: 09 November 2009
• Docket Number: No. 08-1686.,No. 08-2219.,08-1686.,08-2219.
• Citation: 585 F.3d 1097
• Parties: James E. NORMAN, Appellee, v. Tim SCHUETZLE; Marc Schwehr; Mary Materi, Appellants. James E. Norman, Appellee, v. Dan Wrolstad, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

585 F.3d 1097

James E. NORMAN, Appellee, v. Tim SCHUETZLE; Marc Schwehr; Mary Materi, Appellants.

James E. Norman, Appellee, v. Dan Wrolstad, Appellant.

No. 08-1686.

No. 08-2219.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2009.

Filed: November 9, 2009.

William George Peterson, AAG, argued, Bismarck, ND, for appellant.

Paul Reginald Sanderson, argued, Bismarck, ND, for appellee.

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.

HANSEN, Circuit Judge.

Following an attack by a fellow inmate, James Norman, the appellee and an inmate at the North Dakota State Penitentiary (NDSP), filed a 42 U.S.C. § 1983 claim against various prison officials for their alleged failure to protect him in violation of the Eighth Amendment. The district court granted qualified immunity to all but four of the prison officials, who then filed these consolidated interlocutory appeals from the denial of their motions for qualified immunity. We reverse and remand for entry of summary judgment based on qualified immunity in favor of each of the appellants.

I.

In the context of an interlocutory appeal from the denial of qualified immunity, we construe the evidence in the light most favorable to Norman, the nonmoving party. See Brown v. Fortner, 518 F.3d 552, 555 (8th Cir.2008). Norman was assaulted by inmate Michael Meyers on September 22, 2005, while the two were in the traffic hallway of the NDSP before breakfast. Meyers approached Norman from behind as Norman came out of the showers and hit him, knocking him to the ground. He continued hitting and kicking him until a guard intervened. Norman received a cut above his eye requiring stitches, a broken nose, numerous abrasions, and a concussion.

We turn now to the events that occurred prior to the assault that form the basis for Norman's claim that the prison officials knew of a substantial risk that Norman would be assaulted. Early in 2005, Norman filed several "kites" (or prison grievances) against Appellant Dan Wrolstad, the NDSP's Director of Education, who supervised a restaurant management class at the prison. Norman charged that Wrolstad operated the restaurant program illegally and sought to get him fired. The kites related to an inmate cookout to be held by the restaurant management class in May 2005, as well as Wrolstad's use of grant funds within the program. Norman sent a kite to Appellant Warden Tim Schuetzle on March 7, 2005, complaining that Wrolstad allowed other inmates to read the kites Norman had filed against Wrolstad. Schuetzle responded to Norman the next day, stating that "Mr. Wrolstad should not show your kites to other inmates, but he does have to research & respond to your questions." (Appellee's App. at 25.) Norman continued to send letters to Wrolstad complaining about the restaurant management class.

Norman sent a letter to Corky Stromme, the NDSP Chief of Security (Stromme was granted qualified immunity), dated June 28, 2005, again complaining that Wrolstad showed his kites to other prisoners and allowed them to pass the kites among the other inmates. Although he complained that Wrolstad was trying to get other inmates to "do his dirty work" and trying to incite other inmates to assault him, Norman did not request protection, but "ask[ed] for Mr. Wrolstad's termination." (Id. at 26.) In a June 30 addendum to the June 28 kite, Norman stated that another inmate told him that Wrolstad told the other inmate to stay away from Norman because Norman was "going to get beat up," and Norman wrote that "Wrolstad is soliciting for someone to beat me up." (Id. at 27.) Again, Norman did not seek protection but ended the kite by asking for a meeting to discuss what was going to be done with Mr. Wrolstad and stating, "I'm asking for his job." (Id.) Norman added a note stating, "This has nothing to do with inmates getting my paperwork, this is all Mr. Wrolstad. Any inmate would take paperwork given to them by a Staff member. It's Wrolstad's motive behind doing it." (Id.) Stromme turned the kite over to Bob Coad, an NDSP Deputy Warden, who was Wrolstad's supervisor. Coad investigated the complaint by discussing it with Wrolstad, who provided a written response denying the allegations that he showed Norman's kites to other inmates and denying that he had solicited anyone to beat up Norman. Coad provided the written response to Norman, who, in the meantime, continued sending kites to Stromme and to LeAnn Bertsch, the Director of the North Dakota Department of Corrections, seeking to get Wrolstad fired. Wrolstad's response triggered more kites from Norman in July 2005 addressed to Coad and Stromme complaining about what Norman deemed an inadequate investigation into Wrolstad's activities in the education department.

Wrolstad allegedly showed the kites to inmate Jeremy Bryant, who showed the kites to Michael Meyers, the inmate who ultimately assaulted Norman on September 22, 2005. Meyers had a history of assaultive behavior at the NDSP prior to his assault on Norman. He had five administrative arrests related to assaults on fellow inmates between December 2003 and December 2004. Meyers was placed in administrative segregation, served his time, and was ultimately released into the general population in February 2005 pursuant to an "administrative contract." After his release into the general population, Meyers was involved in the Intensive Anger Management program and earned his way into a preferred housing unit based on his positive behavior. Meyers had no disciplinary problems between February 2005 and his assault on Norman in September 2005, except one incident in July. Meyers worked as an inmate barber, and, while cutting another inmate's hair, he shaved the letter "C" into the back of the inmate's hair to identify him as a child molester. He corrected the haircut the same day.

About two weeks prior to Meyers' assault on Norman, an inmate approached Appellant Mary Materi, an NDSP Case Worker in the East Cell House (where Norman was housed), and told her that a black man was looking to hire someone to assault Norman. Materi told the inmate she would need to verify the claim and asked for the name of the inmate looking to hire the assault but did not further investigate the allegation. The day before the assault, Brian Taylor, an NDSP Case Worker in the West Cell House, called Appellant Marc Schwehr, a Case Worker in the East Cell House, and told Schwehr that Meyers had joked around about fighting with Norman. On the same evening, Meyers, who, as mentioned earlier was an inmate barber, talked to Schwehr about letting Norman out of his cell for a haircut. Schwehr refused because Norman was on cell confinement. Meyers tried to convince Schwehr that inmates could be let out of cell confinement for haircuts, but Schwehr still refused. Meyers also sent a package to Norman containing a towel, which was delivered to Norman that night by Schwehr.

Schwehr made a note in the East Cell House logbook that night which stated "Meyers, Michael # 2427 may assault Norman, James # 16372, Lt. was notified." (Appellants' App. at 42.) Schwehr took no other action, stating in his affidavit that he did not take the threat seriously because Meyers often joked around. The next morning, Materi reported for duty and made an entry in the logbook at 5:30 am: "Materi on Duty, Log Reviewed." (Id. at 46.) She then conducted morning roll-out, which is when the inmates are let out of their cells to shower, take medications, and go to breakfast. It was during this time that Meyers assaulted Norman by attacking him from behind while they were both in the traffic hallway.

Norman brought a civil action under 42 U.S.C. § 1983 in February 2006 against various NDSP officials, claiming that his right to be free from cruel and unusual punishment under the Eighth Amendment was violated when the defendants failed to protect him from Meyers' assault. The magistrate judge, presiding with the consent of the parties pursuant to 28 U.S.C. § 636(c), entered an order on February 7, 2008, granting summary judgment to some of the named defendants but denying it as to Schuetzle, Schwehr, and Materi, concluding that fact issues precluded their claims to qualified immunity. The court deferred ruling on Wrolstad's motion for summary judgment to allow Norman, who was proceeding pro se, to submit additional evidence regarding whether Wrolstad supplied Norman's kites to other inmates. On May 23, 2008, the court concluded that fact issues precluded finding Wrolstad entitled to qualified immunity on summary judgment. Each of the prison officials filed an interlocutory appeal of the denial of his or her claim of qualified immunity, and our court granted their joint motion to consolidate the appeals.

II.

In this interlocutory appeal from the denial of summary judgment based on a claim of qualified immunity, we review the district court's decision de novo. See Irving v. Dormire, 519 F.3d 441, 445 (8th Cir.2008). Our review is limited to the legal issue of whether, considering the facts in the light most favorable to Norman, there was a violation of any clearly established federal right. Id. at 445-46. Although we lack jurisdiction to review a district court's conclusion that the summary judgment record raised a genuine issue of material fact concerning the government officials' involvement in actions that, if true, would have violated the petitioner's constitutional rights, see Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), we may still "examine the facts as they were known to the government official[s] in order to determine whether clearly established law would be violated by [their] actions," Reece v. Groose, 60 F.3d 487, 489 (8th Cir.1995) (discussing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Although "this usually means adopting the plaintiff's version of the facts" in qualified immunity cases, the court must limit its consideration...