John Townsend v. Sarah Cooper

In the

United States Court of Appeals
For the Seventh Circuit
No. 12-3620

JOHN TOWNSEND,
Plaintiff-Appellant,

v.

SARAH COOPER, et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-cv-00347-PJG — Patricia J. Gorence, Magistrate Judge.

ARGUED MAY 31, 2013 — DECIDED JULY 17, 2014

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. John Townsend was a prisoner at the
Green Bay Correctional Institution (“GBCI”), a facility operated
by the Wisconsin Department of Corrections (“DOC”).
Townsend sued a number of officials at the Green Bay facility
for violations of his civil rights under the Eighth and
Fourteenth Amendments. The lower court granted summary
2 No. 12-3620

judgment in favor of the defendants. We affirm in part and
vacate and remand in part.
I.
On appeal from a grant of summary judgment, “[t]he
evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). We must therefore credit
Townsend’s version of the facts at this stage. GBCI has
procedures in place for inmates who violate prison rules. See
Wis. Admin. Code (the “Code”) §§ DOC 303.01 et seq. (the
“rules governing inmate conduct under this chapter describe
the conduct for which an inmate may be disciplined and the
procedures for the imposition of discipline.”). The extensive
procedures that follow section DOC 303.01 govern how prison
officials may enforce discipline in Wisconsin prisons. See e.g.
Wis. Admin. Code. §§ DOC 303.69 & 303.70 (describing
procedures for major penalties including adjustment
segregation, program segregation and disciplinary separation).
See also R. 63-9 (GBCI Segregation Unit Handbook).
The prison also has procedures for inmates who are
mentally ill and pose a danger to themselves or others. See Wis.
Admin. Code §§ DOC 311.01 et seq. That chapter provides “for
an involuntary or voluntary nonpunitive status to be used for
the temporary confinement of an inmate to ensure the inmate's
safety and the safety of others if the inmate is mentally ill and
dangerous, [or] is dangerous to himself or herself[.]” As with
disciplinary infractions, the Code provides extensive
procedures for placements for mental health reasons. See e.g.
Wis. Admin. Code § DOC 311.04 (“Mental health placement”).
No. 12-3620 3

The non-punitive status that GBCI employs is referred to as
“observation status,” a very restrictive status in which prison
staff remove any property that the inmate could use to injure
himself or others. See Wis. Admin. Code § DOC 311.14
(“Conditions of confinement while in observation”). For an
inmate bent on self-destruction, this could include almost any
property, and some Wisconsin inmates have proven morbidly
creative in their use of common objects to harm themselves. See
e.g. Bowers v. Pollard, 602 F. Supp. 2d 977, 981 (E.D. Wis. 2009)
(behavior action plan applied to mentally ill inmate who
repeatedly attempted to injure himself by inserting objects
such as the teeth of a comb, fingernails, a piece of a milk carton
and a piece of a mattress, into his penis).
Townsend presented complex challenges to the staff at
GBCI because he suffered from significant mental illness and
also engaged in disruptive behavior. The resulting actions that
prison staff took to address his behavior were a blend of the
two approaches. As we will see, though, the hybrid approach
lacked procedural protections required by the due process
clause and sometimes resulted in living conditions that did not
meet the Eighth Amendment’s standard for the minimal
civilized measures of life’s necessities. Under the hybrid
approach, if an inmate at GBCI engages in “continual
disruptive, destructive, assaultive or self-harming behaviors”
and “regular measures” have “failed to correct the inmate’s
behavior,” the prison’s Segregation Review Committee
implements a Behavior Action Plan (“BAP”) for the inmate.
According to the defendants, a BAP is an individualized plan
that is designed to provide incentives for appropriate behavior.
An inmate on a BAP faces restrictions on his property and
4 No. 12-3620

privileges; good behavior results in restoration of property and
privileges, and “unstable” behavior is met with more severe
restrictions. Although the prison characterizes a BAP as non-
punitive, it also cites as the source of authority for the BAP the
sections of the Wisconsin Administrative Code that provide for
“Major penalties: adjustment segregation,” and “Major
penalties: program segregation and disciplinary separation.”
See Wis. Admin. Code. §§ DOC 303.69 & 303.70. Whether the
BAP is punitive and whether it requires notice and an
opportunity to object is one of the disputed issues in the case
that we will address below.
According to a prison psychologist, Townsend had
“multiple observation placements dating back to February
2004.” R. 63-11, at 2. These placements were based on threats
of self-harm and Townsend’s inability to “contract for safety.”
In February 2004, for example, while housed in the general
population, Townsend tried to hang himself from a light with
a bed sheet. Beyond being placed on observation status, the
record does not reveal how the prison responded to
Townsend’s February 2004 suicide attempt. In March 2005,
Townsend again told prison staff that he wanted to kill himself.
As a result, a prison psychologist, Dr. Steven Schmidt, placed
Townsend on observation status on March 17, 2005. During the
next three months, Townsend twice tried to kill himself and
repeatedly expressed suicidal desires. Prison psychologists Dr.
Todd Hamilton and Dr. Martha Breen-Smith regularly visited
Townsend during this period and adjusted his living
conditions to remove from his possession objects he could use
to harm himself. For example, after trying to hang himself from
a light fixture on May 24, 2005, his possessions were limited to
No. 12-3620 5

a blanket, a smock and a book. On May 26, he was released
briefly from observation status only to be placed back on that
status later that same day after again threatening to harm
himself. On June 2, he was released from observation status but
was found later with a sheet wrapped around his neck,
resulting in a return to observation that same day. A few
weeks later, when he removed a strip of Velcro from his smock
and stated an intention to use it to hang himself, he was given
a paper gown instead. At times, when staff deemed it safe, he
was allowed to shower and was given soap, a towel and
shower shoes for that purpose. Otherwise, while on
observation status, Townsend’s access to his property was very
limited.
In May 2005, in the midst of multiple placements and
releases from observation status, Dr. Schmidt conducted a
“Review for Mental Health Placement” for Townsend. R. 63-11,
at 1. Dr. Schmidt diagnosed Townsend as suffering from Post-
Traumatic Stress Disorder (“PTSD”). He noted that Townsend
had “multiple contacts with psychological services in the past,”
that he was generally cooperative and did not show signs of
psychotic symptoms “except one time.” He was at times
agitated and dysphoric, and he reported to prison
psychologists that events in the general population sometimes
triggered memories that led to him acting out.1 Dr. Schmidt

1
According to the National Institute of Mental Health, “PTSD develops
after a terrifying ordeal that involved physical harm or the threat of
physical harm.” Common symptoms of PTSD include re-experiencing the
initial trauma, which is sometimes triggered by words, objects, or situations
that are reminders of the event; avoidance, including both physically
(continued...)
6 No. 12-3620

noted in his report that Townsend had been placed on
observation status twice in May 2005 after telling staff that he
was depressed and wanted to hurt himself. Townsend had not
been prescribed any psychotropic medications. Dr. Schmidt
concluded that Townsend was looking for help, wanted to be
helped, and was motivated to work with the staff at the
Wisconsin Resource Center (“WRC”), a secure mental health
facility for prisoners. On May 18, 2005, Dr. Schmidt therefore
recommended an “urgent transfer” to the WRC for Townsend.
But Townsend was not transferred to that facility. Although
the record does not reveal the reason that Dr. Schmidt’s urgent
request and recommendation was not carried out, at oral
argument, counsel for the defendants stated that there was
another inmate at the WRC with whom Townsend could not
be placed.2 Instead, on June 21, 2005, just weeks after Dr.
Schmidt’s urgent recommendation, Townsend was released

1
(...continued)
staying away from reminders and also emotional symptoms such as
numbness, guilt and depression; and hyperarousal, including being easily
startled, feeling tense or “on edge,” having difficulty sleeping, and having
angry outbursts. Recognized treatments for PTSD include psychotherapy
and medication. See http://www.nimh.nih.gov/health/topics/post-trau
matic-stress-disorder-ptsd/index.shtml (last visited June 20, 2014).

2
In response to the court’s questions, counsel could not explain why the
presence of a single inmate with whom Townsend had an unspecified
conflict precluded him entirely from placement at the WRC. According to
Townsend, whom we must credit on summary judgment, in February 2006,
Breen-Smith told Townsend that he would never go to the WRC because
she believed he was faking his symptoms and that there was nothing wrong
with him.
No. 12-3620 7

from segregation status and on June 22, he was released from
observation status and returned to the prison’s general
population.
Not surprisingly, his stay in the general population was
short-lived. Within a day, he got into a fight with other
inmates, and on June 23, 2005, he was placed in “temporary
lock-up status.” On June 24, he was placed in “control status”
and given a paper gown.3 On that same day, the Segregation
Review Committee placed Townsend on a BAP. He was given
a memorandum that described the terms of his first BAP:
You have recently made threats to yourself and
others. Additionally, your behavior has been very
disruptive. Therefore, pursuant to the DOC Admin
Cod 303.69 and 303.70, your property will be kept
outside of your cell, due to safety and security
concerns presented by allowing you to have it in
cell.
•Your cell will be searched two times a week.
•You will be given a bag meal.
•You will be taken out of your cell of [sic] Fridays
to review mail, write letter, etc. You will be

3
According to the defendants, an inmate is placed in “control status” when
the inmate is behaving in a disruptive manner. During control status, the
institution provides a mattress, light, toilet, sink, ventilation and heating,
adequate clothing, essential hygiene supplies and nutritionally adequate
meals, but otherwise maintains close control of the inmate’s property. R. 48,
at 16.
8 No. 12-3620

allowed one hour to perform these tasks. An
officer will be present at all time.
•You will have a paper gown to wear.
•Upon request, you will be given a self-help book
by clinical services.
•You will be given a segregation mattress.
•You will be given a shower on regular shower
days. As appropriate, a towel and hygiene
supplies will be provided to you prior to the
shower. You will be expected to return all items
after the shower.
No changes will be made in the plan without Lt.
Swiekatowski, Program Supervisor Cooper, Dr.
Hamilton and/or Dr. Breen’s approval.
This plan will be reviewed on an ongoing and
regular basis. Modifications will be made as
appropriate, to include giving you more privileges
and property as your behavior stabilizes, or taking
more privileges and property if you become
unstable.
R. 48-8. Twelve days later, the BAP was modified to change the
segregation mattress to a regular mattress and to provide a
“seg blanket.” Id. With few changes, future BAP notices
provided for similar conditions, sometimes allowing more
property and privileges and sometimes imposing stricter
constraints. When Townsend was placed on a BAP in
November 2005, the notice specified “This plan will be
reviewed on an ongoing and regular basis, there is no set date
No. 12-3620 9

that this will occur.” R. 48-21. Townsend claimed that he was
not always given all of the property or privileges specified in
the BAP. No BAP provided any opportunity for a hearing or
for Townsend to object. Other than general statements in each
BAP that the plan would be reviewed “regularly,” and that
Townsend would receive adjustments to the restrictions based
on stable or unstable behavior, there was no end date for any
BAP and there was no specified way for Townsend to bring an
end to the restrictions imposed under a BAP.
Between June 24, 2005 and March 31, 2006 (when he was
transferred to another facility), Townsend was subjected to
different BAPs for 259 days.4 During that time, his property
and privileges were severely constrained. For at least ninety of
those days, he was either naked or issued only a paper gown
or segregation smock. He was denied a regular mattress for
106 days, and was not allowed sheets or a pillow for almost the
entirety of the BAP period. When he did not have a regular
mattress, he slept on either a rubber mat or a concrete slab.
Cold air blew into his cell from the ventilation system and
Townsend was often very cold. He walked non-stop around
his cell in an attempt to keep warm. He was allowed out of his
cell for one hour per week to read his mail and write letters. He
was not allowed access to toiletries or a towel for almost the
entirety of his confinement under the BAP. That meant he had
no toilet paper (or at times only a very small amount of toilet

4
For brief periods of time, Townsend was released from the BAP. Thus,
although 280 days elapsed between the first imposition of the BAP and
Townsend’s transfer to another facility, he was subjected to the BAP, by his
own calculation, for 259 days.
10 No. 12-3620

paper), no soap to wash his hands, and no toothpaste or
toothbrush. For 136 days, he was denied writing materials in
his cell, and his access to books and mail was severely
restricted. For a lengthy period, he was given his meals in a
bag, to eat with his hands, rather than a meal tray with utensils
that was provided to other prisoners. For a period of weeks (he
does not specify how many), Townsend was entirely naked
and provided with no clothing, bedding, linen, mattress or
shoes.
At certain times during the BAP, he was also on
observation status and, during those times, he was visited by
Drs. Hamilton and Breen-Smith. According to Townsend, he
kept hearing voices telling him to kill himself in order to end
the pain and suffering he was experiencing on the BAP. But
when he shared these thoughts with the psychologists, they
told him that, because he was already naked and had nothing
in his cell with which to harm himself, they were not worried
about his suicidal thoughts. Sometimes the psychologists
would laugh at Townsend and tell him that he was making
things up so that he would be removed from the BAP. On
March 31, 2006, Townsend was transferred to Columbia
Correctional Institution.
Townsend then filed suit against a number of GBCI prison
officials under 42 U.S.C. § 1983. He alleged that the defendants
(1) violated his rights under the Fifth and Fourteenth
Amendments by subjecting him to the BAP without due
process; (2) deprived him of the minimal civilized measure of
life’s necessities while he was subject to the BAP, contrary to
the Eighth Amendment; and (3) were deliberately indifferent
to his serious medical needs, also in violation of the Eighth
No. 12-3620 11

Amendment. The district court granted summary judgment in
favor of the defendants on all three counts. The court found
that the BAP was not punitive but rather was implemented to
protect Townsend from harming himself or others, and
therefore no notice was required under the due process clause.
The court also concluded that Townsend’s conditions-of-
confinement claim failed because the conditions were imposed
for safety reasons and because Townsend could have ended
the harsh conditions by simply behaving appropriately.
Finally, the court determined that prison officials were not
deliberately indifferent to Townsend’s mental health issues but
treated him appropriately. Townsend appeals.
II.
On appeal, Townsend contends that the BAP was punitive
and that due process required notice and an opportunity to
object. He also asserts that the conditions to which he was
subject under the BAP violated the Eighth Amendment
prohibition against cruel and unusual punishment. Finally, he
maintains that prison officials were deliberately indifferent to
his serious medical needs when they failed to appropriately
treat him and actually worsened his mental illness by
subjecting him to conditions that they knew would exacerbate
his depression and suicidal urges. Although Townsend initially
sued a much larger group of employees of the DOC, he
appeals only that part of the district court’s decision that
relates to Sarah Cooper (the Programs Supervisor of GBCI’s
Segregation Unit); William Swiekatowski (a supervising officer
and lieutenant); Mark Zimonick (a Segregation Social Worker);
Martha Breen-Smith (a psychologist); Todd Hamilton (another
psychologist); and William Pollard (the warden of GBCI). He
12 No. 12-3620

does not appeal the district court’s conclusion that other prison
employees who were not personally involved in the harms he
alleges may not be held liable under section 1983. See Ashcroft
v. Iqbal, 556 U.S. 662, 677 (2009) (in a section 1983 suit, each
government official is liable only for his or her own
misconduct). The defendants do not deny that these remaining
prison officials were personally involved in the decision to
impose the BAP and implement its terms, but they do deny
that the BAP conditions violated constitutional standards. We
review the district court's grant of summary judgment de novo,
examining the record in the light most favorable to Townsend
and construing all reasonable inferences from the evidence in
his favor. Anderson, 477 U.S. at 255; Naficy v. Illinois Dep't of
Human Servs., 697 F.3d 504, 509 (7th Cir. 2012);
Norman–Nunnery v. Madison Area Technical Coll., 625 F.3d 422,
428 (7th Cir. 2010). Summary judgment is appropriate when
there are no genuine disputes of material fact and the movant
is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Naficy, 697 F.3d at 509.
A.
We begin with the question of whether the imposition of
the BAP without notice and an opportunity to object violated
Townsend’s due process rights, and the closely related
question of whether the conditions of Townsend’s confinement
under the BAP violated his rights under the Eighth
Amendment. There is a certain disconnect between the parties
in their briefing of the legal issues related to the BAP.
Townsend characterizes the program as entirely punitive; the
defendants contend it was implemented for safety reasons. As
No. 12-3620 13

a factual matter, however, it appears that the BAP was
implemented in response to both safety concerns and
infractions of prison rules; at the very least, there are genuine
issues of material fact regarding the reasons for implementing
the BAP. Each party’s characterization of the BAP heavily
influenced how they briefed the issues. For example, the
defendants contend that, because the BAP was not punitive,
and because the BAP did not impose an atypical and
significant hardship on Townsend, no opportunity to object
was required before applying the program to Townsend. They
also argue that Townsend did receive a notice of sorts; each
time he was placed on the BAP or the terms were changed, he
was given a description of the conditions that were to be
imposed. The defendants appear to concede that the program
was imposed without any opportunity to object. Townsend, in
turn, argues that the BAP was entirely punitive and was
implemented without due process. He does not address the
conundrum that prison officials faced in dealing with a
prisoner who was both mentally ill and willfully disruptive.
Our analysis must necessarily account for the factual reality:
Townsend was both mentally ill and repeatedly in violation of
prison regulations.
To succeed on his Fourteenth Amendment due process
claim, Townsend “must establish that he has a liberty interest
in not being placed in the [BAP]—as it was administered to
him—without procedural protections. It is undisputed that he
received no procedural due process, so the claim turns on
whether he can establish a liberty interest.” Gillis v. Litscher, 468
F.3d 488, 491-92 (7th Cir. 2006). In Sandin v. Conner, 515 U.S.
472 (1995), “the Court explained that the Fourteenth
14 No. 12-3620

Amendment provides to inmates a liberty interest in avoiding
transfer to more restrictive prison conditions if those
conditions result in an ‘atypical and significant hardship’ when
compared to ‘the ordinary incidents of prison life.’” Townsend
v. Fuchs, 522 F.3d 765, 768 (7th Cir. 2008) (quoting Sandin, 515
U.S. at 484-86). When a transfer to conditions meeting this
standard occurs, the “prison must afford the inmate procedural
protections before the transfer occurs.” Townsend, 522 F.3d at
768 (citing Sandin, 515 U.S. at 487). Townsend therefore must
demonstrate that the BAP imposed conditions resulting in an
atypical and significant hardship compared to ordinary prison
life.5 He easily meets this standard.

5
Due process applies when an inmate is subject to conditions that pose an
atypical and significant hardship when compared to the ordinary incidents
of prison life, and also when the conditions “exceed[] the sentence in such
an unexpected manner as to give rise to protection by the Due Process
Clause of its own force.” Sandin, 515 U.S. at 484 (citing Vitek v. Jones, 445
U.S. 480, 494 (1980) (holding that an involuntary transfer to a mental
hospital for the purpose of psychiatric treatment implicated a liberty
interest protected by the due process clause); and Washington v. Harper, 494
U.S. 210, 221-22 (1990) (holding that a prisoner possesses a significant
liberty interest in avoiding the unwanted administration of antipsychotic
drugs under the Due Process Clause of the Fourteenth Amendment)). In
Vitek, for example, the Court concluded that the “stigmatizing consequences
of a transfer to a mental hospital for involuntary psychiatric treatment,
coupled with the subjection of the prisoner to mandatory behavior
modification as a treatment for mental illness, constitute the kind of
deprivations of liberty that requires procedural protections.” 445 U.S. at
494. Under Vitek and Washington, an inmate subjected to conditions
impinging a liberty interest for mental health reasons must still be afforded
due process.
No. 12-3620 15

The conditions imposed in Gillis were remarkably similar
to those Townsend experienced. In Gillis, a different Wisconsin
prison implemented a “Behavioral Modification Program,” or
a “BMP,” for certain inmate infractions. Gillis was placed on a
two-stage BMP for violating a rule that required him to sleep
with his head at the back of his cell so that he would be visible
to guards checking him through a small window on his door.
In Stage One, “all property” was removed from his cell for
three days and he was fed nutri-loaf for his meals. Stage One
was extended two days for Gillis based on certain behaviors he
exhibited during the first three days. In Stage Two, which
generally lasted a minimum of seven days but could have been
extended based on Gillis’s behavior, he was allowed a
segregation smock, hygiene items twice a day and showers on
regular shower days. When prison officials said “all property”
would be removed in Stage One, apparently they meant that
all of his clothing, bedding and even basic hygiene items were
removed. Gillis was left naked in his cell with a concrete slab
for a bed, without soap or even toilet paper for all of Stage One
and most of Stage Two on the BMP, for a total of twelve days.
He was denied mail, visitors, phone privileges, canteen items,
writing materials and access to the law library. He was allowed
toilet paper on five occasions in those twelve days, four
squares at a time. The segregation smock that he was allotted
in Stage Two was a sleeveless poncho that covered his chest
and groin. He was not issued underwear. At some point, he
began to receive regular meals in Styrofoam containers and
was allowed the use of toothpaste and a toothbrush, but was
not given soap, bedding or a mattress. While on the BMP, Gillis
began to hear voices telling him that people were trying to kill
16 No. 12-3620

him. He suffered panic attacks, palpitations, shortness of
breath and a fear that he was about to die. He became suicidal
and wrote the words “help me” in his own blood on the walls
of his cell. At that point, he was placed on observation status
but the conditions of the BMP did not change. 468 F.3d at 490-
91.
As is the case with Townsend, in addition to a due process
claim, Gillis also sued prison officials under the Eighth
Amendment for conditions of confinement that constituted
cruel and unusual punishment. That claim required a showing
that the BMP imposed conditions that denied him “the
minimal civilized measure of life’s necessities.” Gillis, 468 F.3d
at 491 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Gillis also was required to demonstrate that the defendants
acted with knowledge that he faced a substantial risk of serious
harm and disregarded that risk by failing to take reasonable
measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994);
Gillis, 468 F.3d at 491.
In Gillis, we noted that life’s necessities include shelter,
heat, hygiene items and clothing. We cited cases where a lack
of heat, clothing, sanitation, and bedding, alone or in
combination, were found to violate the Eighth Amendment. See
Gillis 468 F.3d at 493 (collecting cases). See also Rice ex rel. Rice
v. Correctional Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012)
(incarcerated persons are entitled to confinement under
humane conditions which provide for their basic human needs,
including adequate sanitation and hygienic materials).
Although the defendants here deny that they subjected Town-
send to these sorts of conditions, Townsend has created a
No. 12-3620 17

genuine issue of material fact regarding the conditions under
which he was held with his own sworn statements. In addition
to the conditions we described above, Townsend averred that
he spent a period of weeks completely naked, with no clothing,
shoes, bedding, linens, mattress, mail or legal materials. We
found Gillis’s claim sufficient to proceed to trial on both an
Eighth Amendment conditions-of-confinement claim and a due
process claim when he suffered similar conditions for twelve
days, including five days in Stage One and seven days in Stage
Two. Townsend endured these conditions in varying degrees
for 259 days. We have held that “both the duration and the
conditions of the segregation must be considered in the due
process analysis; if the conditions of segregation were
significantly harsher than those in the normal prison
environment, ‘then a year of [segregation] might count as a
deprivation of liberty where a few days or even weeks might
not.’” Marion v. Columbia Correction Inst., 559 F.3d 693, 698 (7th
Cir. 2009). In Marion, we concluded that a term of segregation
lasting 240 days required scrutiny of the actual conditions of
segregation, especially in light of the decisions of other courts
of appeals holding that periods of confinement that approach
or exceed one year may trigger a cognizable liberty interest
without any reference to conditions. 559 F.3d at 698-99 n.4
(collecting cases). In Townsend’s case, both the duration of the
BAP and the conditions imposed implicate liberty interests that
require procedural protections. At a minimum, those
protections should have included notice and an opportunity to
object in some fashion.
As we noted above, to avoid summary judgment on his
conditions-of-confinement claim, Townsend must also
18 No. 12-3620

demonstrate that the defendants acted in disregard of a
substantial risk of serious harm to him. “Our review, though,
convinces us that, on this issue as well, he must be allowed to
proceed to trial.” Gillis, 468 F.3d at 494. Townsend’s BAPs
did not provide end dates, and like Gillis’s BMP, Townsend’s
BAPs did not specify how Townsend could bring an end to
the obviously harsh conditions. Gillis, 468 F.3d at 493–94.
Thus, the defendants’ reliance on the Second Circuit’s
decision in Trammel v. Keane, 338 F.3d 155 (2d Cir. 2003),
is unpersuasive for virtually the same reasons we explained
in Gillis. See Gillis, 468 F.3d at 493–94.
Townsend has also raised a genuine issue of material fact
regarding whether the BAP was imposed for safety reasons or
as a disciplinary measure. Of course, safety and discipline are
not mutually exclusive concerns. Townsend seems to concede
as much by characterizing the BAP as a hybrid program. And
Townsend, by his own admissions, presented both disciplinary
problems and mental health issues to prison officials. Nothing
precludes prison officials from addressing both concerns, even
simultaneously. But as support for the imposition of the BAP,
GBCI cited Wisconsin Administrative Code §§ 303.69 (“Major
penalties: adjustment segregation”), 303.70 (“Major penalties:
program segregation and disciplinary separation”) and 303.71
(“Controlled segregation”). Sections 303.69 and 303.70 each
specify that the penalty may not exceed the period specified in
section 303.84 (“Sentencing procedure and schedule of
penalties”). That section, as its title suggests, specifies penalties
(including durations) “where an inmate is found guilty of one
or more violations of the disciplinary rules.” Wis. Admin. Code
DOC § 303.84. The defendants concede that the BAP “has
elements designed to enforce discipline,” (Brief at 23) and
No. 12-3620 19

noted several times that the BAP was activated by Townsend’s
violations of prison rules. For example, the BAP was initially
activated because Townsend got into a fight with other
inmates, and then refused to enter his cell because he wanted
to be housed closer to his brother. His second placement on the
BAP followed several conduct reports for infractions such as
refusing to return his lunch bag, refusing his meal tray, and
covering his cell window. When he engaged in behaviors that
were harmful to himself, the prison also used “observation
status” to ensure his safety. Observation status, as we noted
earlier, is governed by section DOC 311.14, “Conditions of
confinement while in observation,” and accompanying
regulations. But when Townsend engaged in rules infractions
unaccompanied by threats of self-harm, he was subjected to the
BAP and endured severe property restrictions unrelated to his
personal safety. Thus, Townsend has raised a genuine issue of
fact regarding whether the BAP was imposed as discipline for
violations of prison rules.
We note that, at times when Townsend was on the BAP,
prison officials used observation status and the related
procedures because Townsend posed a danger to himself or
others. They also employed certain disciplinary procedures
while Townsend was on the BAP for particular rules violations.
In those instances where prison officials indisputably
employed established procedures to address particular safety
issues or disciplinary concerns, due process was satisfied. But
they employed no due process for the additional restrictions
occasioned by the BAP itself when it was arguably used as a
punitive measure. In light of the remarkable similarity between
the conditions imposed in Gillis under the BMP and Town-
20 No. 12-3620

send’s BAP, we therefore conclude that the court erred in
granting judgment in favor of the defendants on Townsend’s
due process claim and his Eighth Amendment conditions-of-
confinement claim.
B.
All that remains is Townsend’s claim against Drs. Hamilton
and Breen-Smith for deliberate indifference to his serious
medical needs. The Eighth Amendment imposes a duty on
government officials to provide medical care to prisoners.
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); see also Gil v. Reed,
535 F.3d 551, 556 (7th Cir. 2008); Williams v. Liefer, 491 F.3d 710,
714 (7th Cir. 2007). Prison officials violate the Eighth
Amendment when they are deliberately indifferent to a
prisoner's serious medical needs. Estelle, 429 U.S. at 104, Gil,
535 F.3d at 556; Williams, 491 F.3d at 714. “A claim of deliberate
indifference to a serious medical need contains both an
objective and a subjective component. To satisfy the objective
component, a prisoner must demonstrate that his medical
condition is ‘objectively, sufficiently serious.’” Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005) (quoting Farmer, 511 U.S. at
834). The defendants concede that Townsend had a serious
medical need based on his severe mental illness.
To satisfy the subjective component, a prisoner must
demonstrate that prison officials acted with a “sufficiently
culpable state of mind.” Farmer, 511 U.S. at 834; Greeno, 414
F.3d at 653. In particular:
The officials must know of and disregard an
excessive risk to inmate health; indeed they must
“both be aware of facts from which the inference
No. 12-3620 21

could be drawn that a substantial risk of serious
harm exists” and “must also draw the inference.”
Farmer, 511 U.S. at 837, 114 S. Ct. 1970. This is not to
say that a prisoner must establish that officials
intended or desired the harm that transpired.
Walker, 293 F.3d at 1037. Instead, it is enough to
show that the defendants knew of a substantial risk
of harm to the inmate and disregarded the risk.
Greeno, 414 F.3d at 653. The defendants acknowledge that Drs.
Hamilton and Breen-Smith were aware of Townsend’s
condition and the risk to his health. They contend, however,
that Townsend has failed to raise a genuine issue of material
fact regarding whether the prison psychologists disregarded
the risk to Townsend’s health. Instead, they point out that Drs.
Hamilton and Breen-Smith repeatedly visited Townsend when
he expressed any desire for self-harm. They regularly assessed
and adjusted his access to property that he could use to harm
himself, and they repeatedly placed him on observation status
to ensure his safety when he was suicidal.
Townsend counters that the visits by Drs. Breen-Smith and
Hamilton did not constitute treatment and that the
psychologists actually aggravated his condition by placing him
on the BAP. Specifically, he charges that they should have
known about a January 2005 report produced by the Wisconsin
Department of Corrections on “Treating Mentally Ill Inmates
in Segregated Settings: A Report of the Segregation Work-
group” (hereafter “Report”). According to Townsend, the
Report concludes that segregation and removal of property
“aggravates the condition of mentally ill patients.” Townsend
contends that Drs. Hamilton and Breen-Smith “inflicted” those
22 No. 12-3620

conditions on Townsend “despite clear contraindication from”
the Report.
There are numerous problems with Townsend’s analysis.
First, as a factual matter, the Report does not state conclusively
that segregation and the removal of property aggravate mental
illness. Instead, the Report notes that the “scientific literature
on the mental health effects of prolonged segregation is still
incomplete and conflicting,” but that “there is a growing
consensus that inmates with psychological vulnerabilities can
deteriorate if placed in settings that have significant social
isolation and inactivity.” R. 63-8, at 6. Second, the Report pre-
dates Townsend’s placement on the BAP by fewer than six
months, and Townsend has cited no evidence that Drs. Breen-
Smith and Hamilton were even aware of the Report’s
conclusions, much less that they intentionally ignored them.
Nor is there evidence that the prison psychologists would have
been able, by themselves, to change prison policies in the
months between the issuance of the Report and the imposition
of the BAP.
Third, and perhaps most importantly, Townsend has cited
no evidence that Drs. Breen-Smith and Hamilton displayed a
conscious disregard of his needs. Any difference of opinion
between Drs. Breen-Smith and Hamilton with Dr. Schmidt
regarding the need to transfer Townsend to the WRC does not
itself support a claim of deliberate indifference. See Shields v.
Illinois Dep’t of Corrections, 746 F.3d 782, 797 (7th Cir. 2014). Nor
does Dr. Breen-Smith’s remark that Townsend was faking his
symptoms in order to be released from the BAP support a
conclusion that she was deliberately indifferent. Rice, 675 F.3d
at 684 (sincere belief that inmate was malingering does not
No. 12-3620 23

support a conclusion that a nurse was deliberately indifferent
to an inmate’s medical needs). We recently noted that
“prolonged confinement in administrative segregation may
constitute a violation of the Eighth Amendment (and therefore
the Fourteenth), depending on the duration and nature of the
segregation and whether there were feasible alternatives to
that confinement.” Rice, 675 F.3d at 666. See also Walker v.
Shansky, 28 F.3d 666, 673 (7th Cir. 1994). But as in Rice, Town-
send has failed to identify any alternatives open to the
psychologists for keeping him safe during periods when he
expressed suicidal wishes. Because Townsend presented no
evidence that Drs. Hamilton and Breen-Smith were
deliberately indifferent to his serious mental health needs, the
district court did not err in granting summary judgment in
favor of the defendants on that claim.
III.
In sum, Townsend has raised genuine issues of material fact
regarding whether (1) the imposition of the BAP violated his
due process rights by imposing an atypical and significant
hardship compared to the ordinary incidents of prison life,
without appropriate notice and an opportunity to be heard;
and (2) the BAP imposed conditions of confinement that
denied Townsend the minimal civilized measures of life’s
necessities. We therefore vacate the judgment on those two
claims and remand for further proceedings. On Townsend’s
Eighth Amendment claim for deliberate indifference to his
serious medical needs, we affirm the district court’s grant of
summary judgment in favor of the defendants.
AFFIRMED IN PART; VACATED AND REMANDED IN
PART.