Walker v. Rowe

• Decision Date: 19 May 1986
• Docket Number: No. 85-2057,85-2057
• Parties: Dale WALKER, et al., Plaintiffs-Appellees, v. Charles ROWE and David Sandahl, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 507

791 F.2d 507

54 USLW 2616

Dale WALKER, et al., Plaintiffs-Appellees, v. Charles ROWE and David Sandahl, Defendants-Appellants.

No. 85-2057.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 1986.

Decided May 19, 1986.

Bart T. Murphy, Office of Ill. Atty. Gen., Chicago, Ill., for defendants-appellants.

Terry Ekl, Connolly & Ekl, Hinsdale, Ill., for plaintiffs-appellees.

Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and NOLAND, District Judge. ^*

EASTERBROOK, Circuit Judge.

The Pontiac Correctional Center is the maximum security prison of Illinois. On July 22, 1978, inmates of Pontiac who were being returned to their cells after exercise in the courtyard killed three guards, injured others, and set fire to part of the prison. Three of the injured guards, and the estates of the three deceased guards, filed this suit against Charles Rowe, then the Director of the Illinois Department of Corrections, and David Sandahl, the Assistant Warden of Operations at Pontiac. They contended that Rowe and Sandahl (together with others since dismissed from the suit) deprived them of their constitutional right to a safe working environment. The jury returned verdicts aggregating $706,845, to which the district court added $145,792 in attorneys' fees and costs. These recoveries came on top of workers' compensation awards and other benefits afforded by state law. ¹ Because we conclude that the constitution is not a code of occupational safety, we reverse the judgments.

I

One preliminary matter. The defendants maintain that the suit is one against the state and therefore barred by the eleventh amendment. Certainly so if the suit is against the defendants in their "official capacity," but the "capacity" in which litigation proceeds is largely the plaintiff's choice. If the theory is that the defendant occupied a given office, and the occupant of that office had a duty (one attaching to any occupant of the office) to do such-and-such, then we have an "official capacity" suit. It avoids the immunities that apply to "individual capacity" suits but is likely to be brought up short by the eleventh amendment. See Kentucky v. Graham, --- U.S. ----, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985). If the theory is that the defendant did something that is tortious independent of the office the defendant holds, we have an "individual capacity" suit.

The plaintiff may plead a claim either way, and if he pleads what is naturally an official capacity suit as an individual capacity suit, he avoids the eleventh amendment but confronts a fatal problem--inability to prove personal responsibility. Duckworth v. Franzen, 780 F.2d 645, 649-50 (7th Cir.1985). The plaintiff who says that the occupant of a given office should have done something (by virtue of office) but neglected to do it fails for two reasons: most provisions of the bill of rights do not forbid simple neglect, see Daniels v. Williams, --- U.S. ----, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (due process); Whitley v. Albers, --- U.S. ----, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (eighth amendment), and the constitution does not make supervisory officeholders vicariously liable for the acts and omissions of their subordinates, see Ustrak v. Fairman, 781 F.2d 573, 575 (7th Cir.1986); Duckworth, 780 F.2d at 650; McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir.1984).

Many of the grounds on which the guards sought to collect damages fail because, if they do not seek to attach liabilities to the office, they seek to hold the defendants responsible for the acts or omissions of others. The plaintiffs say, for example, that Pontiac was unsafe because:

. The prison had "dead spots" hidden from guard towers

. There were too few guards, and 56 authorized positions were vacant because of high turnover

. The prison was overcrowded, with 1,962 inmates in 1,200 cells

. Some of the inmates had formed gangs, and in general "the inmates clearly were in charge" of the prison

. The phone system was new, hard to use, and had defects

. The door and "cage" in the North Cell House were old and flimsy

. The guards did not receive enough training in controlling riots, and the existing training was poor

These and similar complaints have to do with the prison system as a whole. They do not fix individual responsibility on Director Rowe, who did not design a prison with "dead spots," or an Assistant Warden Sandahl, who could not refuse to accept prisoners committed by the courts. They are either attempts to fasten liability on the office, which the eleventh amendment forbids, or attempts to impose vicarious liability on Rowe and Sandahl. Either way, these complaints cannot be the foundation of liability.

II

Some of the acts in question are at least colorably the personal responsibility of the defendants. The jury might have found the following, among other things, and it might have connected these to the decisions of Rowe and Sandahl:

. Although Pontiac had metal detectors, they were not operational

. Although prisoners were known to make weapons in the metal shop, prison officials did not conduct enough random shakedowns of the inmates' cells to find the weapons, and the request of the guards' union for more shakedowns was "not immediately accepted"

. Although Sandahl should have known that the prison was tense, he allowed it to operate on a normal routine instead of "locking down" the prison (that is, locking inmates in their cells)

. When Sandahl (who was at home) learned that a riot was in progress, he did not immediately issue shotguns to the tactical squad and order it to quell the disturbance; instead Sandahl put Major Lowery in charge, and Major Lowery did not issue shotguns until Sandahl arrived and ordered their issuance more than an hour later

Our question is whether acts and omissions of this character, which arguably increased the danger to which the guards were exposed, violate the constitution. The district court held that they do, both before trial, when it denied a motion to dismiss, see 535 F.Supp. 55, 58 & n. 5 (N.D.Ill.1982), and after trial, when it denied a motion for judgment n.o.v. We may assume that Rowe and Sandahl knew that these acts and omissions increased the risk of injury facing the guards and after full deliberation decided to do nothing. We may assume that the decision to accept these risks was negligent, meaning that the costs of reducing the risks were less than the benefits (the harms avoided, discounted by the probability that there would be a riot). We may even assume that the decision to accept these risks was grossly negligent (meaning that the costs were substantially less than the anticipated benefits). The answer to the question is no, under any of these assumptions.

The defendants did not kill or injure the guards; prisoners did, and this makes all the difference. See Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980). To see why, consider the language of the due process clause of the fourteenth amendment, on which the guards rely: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law ..." The constitution requires the state to grant "process" before it deprives people of life, liberty, or property. It is a constraint on the state's power to act, a prohibition on the misuse of official power. Daniels v. Williams, 106 S.Ct. at 665-66. It does not require the state to guarantee life, liberty, or property against invasion by private actors; it requires only that the state not act, unless with due process, when life, liberty, or property are in the balance.

"Due process" does not mean "due care." Davidson v. Cannon, --- U.S. ----, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). We concluded in Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982), that because the bill of rights is a charter of negative liberties, the state need not protect people from danger. See also Hinman v. Lincoln Towing Service, Inc., 771 F.2d 189, 194 (7th Cir.1985). Bowers held that the state has no constitutional obligation to keep aggressive people out of free society. Subsequent cases have held, among other things, that the police have no constitutional duty to save people in danger. Beard v. O'Neal, 728 F.2d 894, 899 (7th Cir.) (person known to be threatened by criminal), cert. denied, --- U.S. ----, 105 S.Ct. 104, 83 L.Ed.2d 48 (1984); Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983) (person in burning car), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984). The bill of rights is designed to protect people from the state, not to ensure that the state supplies minimum levels of safety or comfort.

Governments regularly sacrifice safety for other things. A city may decide to spend more money on parks or education and less on police, even though its officials know that the expenditure on police would reduce the cost of crime by more than the expenditure on the police. It may do this without answering in damages to people subsequently mugged in the parks. The police department may decide to hire more police and give each one less costly equipment. One predictable result is that the police will suffer more auto accidents in high speed chases than they would if the city used sports cars as patrol vehicles. The city may choose the kind of car it will furnish to the police without explaining to a jury in a Sec. 1983 suit why it picked Chevrolet sedans rather than safer and faster Audi 5000 Turbo Quattros. The level of safety to be provided by the police to the people--like the level of safety to be provided to the police and prison guards--is determined by political and economic forces, not by juries implementing the due process clause. People through the democratic process may choose more or less "crime in the streets" by altering their support of the police, the courts, social welfare programs, and economic policies stimulating growth; so too...