Ustrak v. Fairman

• Decision Date: 13 March 1986
• Docket Number: Nos. 85-1089,85-1164,s. 85-1089
• Citation: 781 F.2d 573
• Parties: Stephen L. USTRAK, Plaintiff-Appellee, Cross-Appellant, v. James W. FAIRMAN, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 573

781 F.2d 573

Stephen L. USTRAK, Plaintiff-Appellee, Cross-Appellant, v. James W. FAIRMAN, Defendant-Appellant, Cross-Appellee.

Nos. 85-1089, 85-1164.

United States Court of Appeals Seventh Circuit.

Argued Oct. 31, 1985.

Decided Jan. 9, 1986.

As Amended on Denial of Rehearing and Rehearing En Banc

March 13, 1986.

James P. Nally, Office of Illinois Atty. Gen., Chicago, Ill., for plaintiff-appellee, cross-appellant.

Stephen Kent Sheffler, Pelini, Crewell & Sheffler, Champaign, Ill., for defendant-appellant, cross-appellee.

Before BAUER, POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Stephen Ustrak, an alumnus of the Illinois state prison at Pontiac, where he served time for burglary and related offenses and for bail jumping, won a verdict of almost $50,000 in compensatory and punitive damages for violations of his civil rights by the warden. 42 U.S.C. Sec. 1983. The warden appeals. Ustrak cross-appeals from the grant of summary judgment in the warden's favor on one count in the complaint.

Ustrak is white, as were all the members of the jury; 80 to 90 percent of the prisoners in Pontiac are black, as is the warden, Fairman, although 80 to 90 percent of the prison staff is white. Two of the three claims on which Ustrak prevailed are claims of racial discrimination. The first arises from an incident in which Ustrak was penalized by withdrawal of commissary privileges for one month for having contraband in his cell. Ustrak's cellmate, who was black, was not disciplined, even though there apparently was a practice of punishing both cellmates for possessing contraband in the cell unless it was crystal clear that only one was guilty. Here it was not crystal clear, although the contraband was found on Ustrak's side of the cell. The guard who found the contraband and lodged charges against Ustrak but not his cellmate was white.

Although the warden approved the punishment of Ustrak, there is no evidence that he did so for racial reasons. This ought to end the matter, for no doctrine of superiors' liability is recognized in section 1983 cases. McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir.1984); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir.1985). But the warden waived this ground for challenging the verdict, by failing to object to instructions under which the jury had only to find that he had "purposefully and intentionally concurred in and acquiesced in the discriminatory proceedings brought against Mr. Ustrak." Although the meaning of this instruction is far from clear, we read it as allowing the jury to find against Fairman if it determined that he had been aware of and had approved of Ustrak's being punished even though Ustrak's cellmate was not punished; and of this awareness and approval there was some evidence.

But we do not think a rational trier of fact could have found that Ustrak was a victim of racial discrimination. The contraband was found on Ustrak's side of the cell, so it was natural that he rather than his cellmate was disciplined. There may have been a practice of disciplining both cellmates in a situation such as presented in this case; but in no area of life is discipline meted out with perfect consistency. "Selective, incomplete enforcement of the law is the norm in this country." Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir.1985). This is not only because some violations are not detected, but also because the resources for law enforcement are often radically inadequate to the number of violations. The authorities must pick and choose; and given the well-known disciplinary problems of American prisons it is not to be believed that prison authorities never overlook known violations of disciplinary regulations. Moreover, Ustrak's charge of incomplete enforcement focuses on the failure to enforce not a written regulation but an unwritten policy by no means in keeping with the best American traditions: collective guilt. Although the evidence pointed to Ustrak's having brought the contraband into his cell, that policy required punishment of his cellmate as well, even though the cellmate probably was innocent. Failure to enforce consistently a rule of collective guilt is one of the less insidious examples of the selective enforcement of law, provided the inconsistency is not racially motivated.

The inevitability of selective enforcement suggests that if Ustrak's proof is enough to make out a prima facie case of racial discrimination, then whenever a black and a white commit the same offense and only one is punished, the other will have a prima facie case of racial discrimination. The racial makeup of Pontiac assures that most white prisoners will have black cellmates unless the prison is racially segregated, which would violate the Fourteenth Amendment. A white prisoner who is disfavored will point to the fact that the warden is black; a black prisoner to the fact that most of the staff is white. Thus, if the jury verdict stands, Pontiac's guards and officials are exposing themselves to potential liability for racial discrimination every time they fail to attain the unattainable- --perfect consistency in enforcing the prison's rules, written and unwritten.

A prima facie case, whether under the equal protection clause of the Fourteenth Amendment or Title VII of the Civil Rights Act of 1964 or any other antidiscrimination principle that we are familiar with, requires proof of a state of facts that makes it more likely than not that there has been discrimination. See, e.g., Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 2799-800, 81 L.Ed.2d 718 (1984). Since Ustrak had a cellmate of a different race, no significance can be assigned to the bare fact of a departure from consistent enforcement that favored the cellmate. Any departure had to injure one cellmate at the expense of another of a different race yet most inconsistencies in enforcement are unrelated to racial discrimination, being the result merely of imperfections in law enforcement. It would be insulting and unfair to Warden Fairman to presume that because he is black any unequal enforcement of prison regulations that hurts a white prisoner is the product of racial prejudice; and remember that it was a white guard who failed to charge Ustrak's black cellmate and that most of the prison staff is white.

Since the charge of discriminatory punishment must be dismissed, we have no occasion to consider whether, if it were proved, an award of damages would be a suitable remedy. Ustrak does not complain that it was wrong to punish him. He complains only that it was wrong not to punish his black cellmate also.

Ustrak's second complaint is that he was denied a job as a clerk in the prison library because of his race. For this wrong the jury awarded the remarkable sum of $15,000 in compensatory damages--remarkable because Ustrak proved no injury beyond a self-serving, unelaborated, uncorroborated, and unsubstantiated conjecture that getting the job would have "increase[d] my typing skills. Right now, Your Honor, I can type 60 words a minute. It would also have given me something to get into the looking up of cases in law and possibly becoming a researcher for a law firm upon my release from the penitentiary."

Ustrak testified that there were three vacancies in the library when he applied for a job there, that one was reserved for whites, that he didn't get the job, and that later he saw that all three vacancies had been filled by blacks. One can see here the shadow of Title VII, under which a prima facie case can be made out by showing that the plaintiff was denied a job for which he was qualified and that a person of another race got the job instead. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Pontiac operates under a consent decree which (rightly or wrongly) guarantees blacks the same percentage of prison jobs as their percentage of the prison population. There is evidence that, as the decree has been interpreted by the prison authorities, one job on the library staff of five or six has been reserved for whites, and the others for blacks; and there is some evidence that Ustrak was qualified for the "white" vacancy which instead went to a black.

But we do not think this adds up to a prima facie case of racial discrimination. The only thing that would be unlawful would be if the librarian with Fairman's connivance had turned down Ustrak because he is white. Of this there is no evidence. At most the evidence shows that the librarian overrode a racial preference for whites and gave the job to a black. That does not show racial animus. The consent decree was not adopted for the protection of white prisoners. In a prison that is 80 to 90 percent black (the record contains no more precise estimate), it would hardly be surprising, with or without a consent decree, if in a particular job classification that had only five or six jobs all were filled by blacks. If there were five jobs, one filled by a white, the percentage of blacks would be only 80 percent, less than their percentage in the prison, and the figure would rise only to 83 percent if there were six jobs (the record does not show whether there were five or six). Since medical science does not yet know how to divide a person, like a planarian, into viable portions, no inference that the blacks got more than relative merit entitled them to can be drawn from the fact that three rather than two of the vacancies were filled by blacks; there is no evidence that the black who filled the "white" slot was unqualified.

The method adopted in McDonnell Douglas for making out a prima facie case is designed for the protection of minorities and women rather than of whites. Racial discrimination against whites is forbidden, it is true, but no presumption of discrimination can be based on the mere fact that a white is passed over in favor of a black. See Lanphear v. Prokop, 703...