In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1497
ESTATE OF WILLIAM A. MILLER, by its representatives Patrick
T. Chassie and Linda Wilkerson,
Plaintiff‐Appellant,
v.
HELEN J. MARBERRY and GARY ROGERS,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:11‐cv‐262‐JMS‐DKL — Jane Magnus‐Stinson, Chief Judge.
____________________
ARGUED NOVEMBER 29, 2016 — DECIDED JANUARY 30, 2017
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. While confined at the federal
prison in Terre Haute, Indiana, William Miller fell out of an
upper bunk and broke his back. Contending that he should
have been in a lower bunk, Miller seeks compensation in this
Bivens action. Miller died in June 2016; the record does not
show why. His estate has been substituted as the plaintiff,
but we use his name to make the exposition easier to follow.
2 No. 15‐1497
Miller’s principal problem is the identity of the two de‐
fendants: Gary Rogers, a guard, and Helen Marberry, then
the Warden of Terre Haute. Miller does not seek relief from
any physician or nurse, even though the prison’s medical
department is responsible for deciding who has a medical
need for a lower bunk. (His complaint named nurse Trisha
Haddix, but he has abandoned that claim.) Nor did Miller
sue the guard responsible for making bunk assignments.
That guard sits in a pod containing a computer with access
to the prison’s SENTRY database that identifies medical re‐
strictions. Rogers, by contrast, roamed the cells on foot.
The events underlying this suit began on January 6, 2009,
when Miller was moved from the prison’s general popula‐
tion to the more restrictive “special housing unit” and as‐
signed to an upper bunk. Miller contends, and we assume,
that when Rogers made his rounds later that day Miller told
Rogers that he had a brain tumor and was entitled to a lower
bunk. Rogers replied that Miller must follow his assignment
or be put on report for disobedience.
Five days later Miller fell from the ladder between the
upper bunk and the floor. He hit his head and lost con‐
sciousness. Miller does not contend that Rogers (who appar‐
ently was not working that shift) or anyone else responded
inadequately. Miller was carried on a backboard with a cer‐
vical collar to an examination room, where a nurse noted
that he reported pain in his neck, back, and left foot. He was
transported by ambulance to a hospital’s emergency room.
The hospital conducted a CT scan that did not detect any
fall‐related problems. Miller returned to the prison within a
few hours and was again assigned to an upper bunk. He
does not contend that either Rogers or Marberry played a
role in that assignment. Nor does he contend that any of the
No. 15‐1497 3
many medical personnel he saw that day issued, or should
have issued, a lower‐bunk‐only directive. He does not con‐
tend that he then (or ever) went to the guard responsible for
bunk assignments and either asked for a lower bunk or told
that guard that he had a medical pass for one. He does say,
however, that once he had retuned to the special housing
unit he told Rogers that he had fallen and repeatedly asked
him for a lower bunk, and that Rogers did not respond.
On February 14, 2009, Miller rolled over while asleep in
the upper bunk and fell approximately six feet to the cement
floor. This time he broke his back and suffered other serious
injuries. Once again Miller does not contend that the care he
received was substandard. He was carried on a backboard,
with a cervical collar, to a hospital for a CT scan, which re‐
vealed injuries that led to surgery. When he returned to the
prison he was again placed in an upper bunk, where he re‐
mained until December 1, 2009, when the medical staff di‐
rected that he be assigned to a lower bunk. Miller does not
contend that Rogers played any role in his assignment to an
upper bunk between his return from the hospital and De‐
cember 1—nor does he contend that any of the prison’s med‐
ical staff is liable for failing to ensure that he had a lower
bunk then, or earlier. Finally, Miller does not contend that
either Rogers or Marberry is liable for failing to ensure that
upper bunks have railings, nets, or other devices to prevent
inmates from falling out while asleep.
The district court granted summary judgment to Rogers
and Marberry, giving two principal reasons. The first, to
which we have alluded, is that neither Rogers nor Marberry
was responsible for bunk assignments. The second is that if
Rogers had consulted the SENTRY database he would not
have discovered a lower‐bunk directive. The district judge
4 No. 15‐1497
found it uncontested that an earlier pass had expired and
that a new one was not issued until December 1, 2009. The
judge stated that guards and wardens are entitled to rely on
the medical staff to make medical decisions about medical
problems.
Miller sees this second reason as his opening. He con‐
tends that there is a material dispute about what Rogers
would have found had he consulted the SENTRY database.
When denying a post‐fall grievance about his bunk assign‐
ment, Warden Marberry wrote that Miller had had authori‐
zation for a lower bunk since early 2008 and should have
brought this to the attention of the guard responsible for
placement decisions (that is, the guard in the pod). Miller
observes that this contradicts affidavits filed by Rogers and
others relating that in January and February 2009 the
SENTRY database did not contain a lower‐bunk notation.
Both statements could be correct; a lower‐bunk assignment
may have been issued but not added to the database. But
there is still an apparent inconsistency, and Miller maintains
that this requires a trial.
Yet the first problem remains—Miller has not sued the
people responsible for bunk assignments. Miller supposes
that it is enough to tell someone about a problem; anyone
told must fix the problem, he insists. He told Rogers that he
had a brain tumor and a lower‐bunk assignment, and Rogers
did nothing. He maintains that, while Marberry was walking
through the special housing unit, he tried to tell her too,
though she turned her back and left before he was finished.
That makes her as much responsible as Rogers, Miller be‐
lieves.
No. 15‐1497 5
That line of argument is deficient on multiple levels. One
is that it supposes that every federal employee is responsi‐
ble, on pain of damages, for not implementing the decision
of any other federal employee, so that all Miller need show is
the existence of a lower‐bunk order. Yet the Supreme Court
has never held that Bivens actions can be used to enforce
administrative orders. Nor has the Court held that every
public official has a duty to carry out every other public offi‐
cial’s decisions. To the contrary, Castle Rock v. Gonzales, 545
U.S. 748 (2005), holds that police and prosecutors are not lia‐
ble for their failure to enforce a judicial no‐contact order.
Why would a lower‐bunk permit receive greater status? To
get anywhere, Miller needed to establish that Rogers and
Marberry violated his constitutional rights—which for a
medical claim under the Eighth Amendment means know‐
ing of (or being deliberately indifferent to) a serious medical
condition, then not taking minimally competent steps to deal
with that condition. See Estelle v. Gamble, 429 U.S. 97 (1976);
Farmer v. Brennan, 511 U.S. 825 (1994); Petties v. Carter, 836
F.3d 722 (7th Cir. 2016) (en banc).
A lower‐bunk permit does not supplant that framework
for Eighth Amendment claims. Miller does not contend that
the very existence of a lower‐bunk assignment would convey
to any conscientious prison employee the existence of a seri‐
ous medical condition, something that is a sine qua non of an
Eighth Amendment medical‐care claim. For all this record
shows, medical personnel issue lower‐bunk directives for
reasons that do not imply the existence of a “serious” health
problem; Miller did not ask in discovery for the criteria that
the prison uses to issue lower‐bunk directives.
His statement to Rogers that he had a brain tumor like‐
wise falls short of demonstrating a serious medical condi‐
6 No. 15‐1497
tion. Brain tumors come in many sizes and locations; they
have a range of effects, including none; benign tumors can
last decades without causing adverse consequences. So to
say “I have a brain tumor” would not necessarily imply to
every guard or warden the need for medical care, let alone
the particular accommodation (a lower bunk) that Miller
demanded. What’s more, Rogers was not obliged to believe
Miller’s assertion that he had a brain tumor and a lower‐
bunk pass. Prisoners can be manipulative, using deceit to
obtain advantages; guards are accordingly entitled to be
skeptical. Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004).
Prisons respond to the risk of manipulative conduct by
exploiting the division of labor—for example, by allocating
bunk‐assignment duties to guards who have computer ter‐
minals that enable them to check prisoners’ assertions. Miller
made his assertions about a brain tumor and a lower‐bunk
pass to Rogers, who could not verify them, while never
complaining to the guard with bunk‐assigning duties and
access to the SENTRY database. This record shows that Mil‐
ler did have a thalamic brain tumor, diagnosed before he en‐
tered prison, that reduced sensation on the left side of his
body. A lower‐bunk assignment may have been well justi‐
fied, but neither Rogers nor Marberry knew the details, con‐
sequences, and appropriate accommodations of Miller’s
medical condition.
Liability under Bivens is personal rather than vicarious.
See, e.g., Iqbal v. Ashcroft, 556 U.S. 662, 677 (2009); Vance v.
Rumsfeld, 701 F.3d 193, 203–05 (7th Cir. 2012) (en banc). One
consequence of this rule was spelled out in Burks v. Raemisch,
555 F.3d 592 (7th Cir. 2009), which holds that prison officials
who reject prisoners’ grievances do not become liable just
because they fail to ensure adequate remedies. That’s a fair
No. 15‐1497 7
description of Rogers’s and Marberry’s situations. Indeed,
Rogers did not have any grievance‐adjustment responsibili‐
ties, and Marberry, who was the ultimate grievance adjuster,
did not receive a formal grievance from Miller until 18
months after his second fall. Defendants’ brief in this court
relies on Burks and two similar decisions, Arnett v. Webster,
658 F.3d 742, 755 (7th Cir. 2011), and King v. Kramer, 680 F.3d
1013, 1018 (7th Cir. 2012), but Miller’s briefs do not discuss
any of the three.
Although Iqbal, Vance, and Burks all hold that inaction fol‐
lowing receipt of a complaint about someone else’s conduct
is not a source of liability, Miller seeks support from Hay‐
wood v. Hathaway, 842 F.3d 1026 (7th Cir. 2016), in which the
majority of a divided panel thought that allegations against a
state prison’s warden created a triable Eighth Amendment
issue. Haywood contended that he had been held for 60 days
in freezing conditions. The panel’s majority stressed that the
warden had given instructions to the prison’s engineering
staff, received a report, visited the scene, and declared that
all was well. That personal involvement permitted an infer‐
ence that the warden’s own conduct was unconstitutional.
Miller’s allegation, by contrast, is that Rogers and Marberry
brushed off his complaints, leaving them to be handled
through the chain of command. That brings Miller’s claim
within the scope of Iqbal, Vance, and Burks rather than Hay‐
wood.
AFFIRMED
8 No. 15‐1497
POSNER, Circuit Judge, dissenting. In November 2006 Wil‐
liam Miller was convicted of bank robbery and sentenced to
120 months in prison. Between then and his imprisonment,
which began thirteen months later in the Federal Correction‐
al Complex in Terre Haute, Indiana (“FCC Terre Haute” as
the prison is more commonly known), he was diagnosed
with a thalamic brain tumor (more commonly referred to in
the medical profession as a thalamic glioma) that impaired
the feeling in the left side of his body—a typical symptom of
the disease.
A month after entering prison, Miller was given a “low‐
er‐bunk restriction”: his doctor ordered that he be assigned
to a lower bunk because of his medical condition, and a no‐
tation to that effect was added (or should have been added)
to his profile in the prison’s electronic record‐keeping sys‐
tem. A year later, for unknown reasons (but there is no indi‐
cation that the reasons were disciplinary), he was assigned
to a more restrictive housing unit in the prison than he’d
originally been in, called the Special Housing Unit. He was
initially given a lower bunk, but within hours was moved to
an upper one. He complained to Gary Rogers, the number
one guard in the unit, that because of his brain tumor he had
a lower‐bunk restriction, but Rogers told him he wouldn’t be
switched to a lower bunk and if he refused the upper bunk
he would “receive a disciplinary report for refusing a direct
order.”
Yet just five days after this contretemps, climbing down
the ladder from his upper bunk Miller became dizzy,
slipped, and fell to the concrete floor, hitting his head and
losing consciousness. According to the prison’s report of the
incident, Miller was found “lying in [on?] [the] floor of [his]
cell at [the] bottom of [the] bunk stairs” with “blood noted to
No. 15‐1497 9
[at?] top of head with a small … laceration.” He was taken to
a hospital, treated, and given a CAT scan, but upon his re‐
turn to the prison was again assigned an upper bunk. He
complained about the assignment, without effect, both to
Rogers and to an attending nurse.
At about this time the prison’s warden, defendant Mar‐
berry, on one of her weekly walks through the Special Hous‐
ing Unit, stopped at the door to Miller’s cell, and he told her
he’d recently fallen from the upper bunk and should be
placed in a lower bunk. As warden she could of course have
taken up the issue of lower versus upper bunk for Miller
with the prison’s medical staff, but she didn’t; she merely
“walked away from [Miller’s] cell door leaving him in mid‐
speech” (according to the complaint)—and this despite the
fact that before he entered the Special Housing Unit, Miller
had repeatedly discussed his brain tumor with the warden
on her visits to prisoners during their lunch period.
The following month (February 2009) Miller while sleep‐
ing fell from his upper bunk at about 2:30 a.m. and remained
lying on the floor for an hour or two until noticed by staff,
who placed him on a back board with a cervical collar
around his neck and took him to the emergency room of a
nearby hospital, where a CAT scan revealed that Miller had
severely compacted (that is, compressed) the cervical seg‐
ment of his spine and sustained a fracture in the thoracic re‐
gion. He was placed in a hard clamshell back brace.
Upon his return to the prison so accoutered, he again re‐
quested a lower‐bunk assignment and it was again refused
without reasons given. Warden Marberry walked through
the Special Housing Unit many times in 2009 and saw Miller
lying on the upper bunk in his cell wearing his clamshell
10 No. 15‐1497
back brace and a cervical brace. Each time she approached
his cell he asked her for a lower bunk, but she did nothing in
response to his request; and Rogers, who in making his
rounds also saw Miller frequently, also did nothing.
Throughout this period Miller was in acute pain.
Finally on December 1, 2009, Miller was given a new
lower‐bunk restriction for one year. Eleven days later, how‐
ever, the day after a nurse removed surgical staples in Mil‐
ler’s back that had been placed there during his most recent
surgery, the wound that had been stapled burst open, dis‐
charging a large amount of a yellowish fluid consisting
mainly of blood. He was taken to a hospital and remained
there for four months until the wound healed. It appears
that after returning from the hospital Miller was at last given
a lower‐bunk assignment.
Miller filed an administrative complaint with the prison
the following year, complaining about all the time he’d been
made to sleep in an upper bunk despite its serious conse‐
quences for his health. His complaint was denied on the
ground that—although he’d had a lower‐bunk restriction
since January 29, 2008—he had never submitted a document
confirming that restriction to a member of the prison’s staff,
as required by a notice to the prisoners that “It is your re‐
sponsibility to have all medical restrictions on your person
to present to staff.” Although he’d had a lower‐bunk re‐
striction since January 29, 2008, he had lost the document
confirming the restriction and had been unable to obtain a
new one from the prison’s medical staff until well into the
following year.
He continued complaining about having to sleep in an
upper bunk, all to no avail, and culminating in this remark‐
No. 15‐1497 11
able brush‐off by the Federal Bureau of Prisons Office of Re‐
gional Counsel: an “investigation of your claim did not re‐
veal you suffered any personal injury as a result of the neg‐
ligent acts or omissions of Bureau of Prisons employees act‐
ing within the scope of their employment.” In fact he had
suffered severe injuries as a result of the negligence—indeed
the deliberate indifference—of Rogers and Marberry, both of
whom were aware of his problems, could not have failed to
realize that they had resulted from his being sentenced to an
upper bunk, and could readily have alerted the prison’s
medical and administrative staff to the need to give him a
lower bunk. They did nothing. That’s what’s called deliber‐
ate (that is, knowing) indifference to a serious medical need.
Judge Easterbrook’s majority opinion speculates that
medical personnel might issue lower‐bunk restrictions for
reasons that don’t imply the existence of a serious medical
need; points out that not all brain tumors are serious; and
reminds the reader that guards are not obliged to believe
whatever a prisoner tells them. All true—but whether Rog‐
ers or Marberry was aware of the serious health risk to Mil‐
ler from being assigned to an upper bunk is an open ques‐
tion that needs to be addressed at a trial. The record contains
facts that support Miller’s claim that he had a serious medi‐
cal need and that the defendants knew it and did nothing
despite their responsibilities.
His administrative claims denied, Miller brought this
civil suit pro se against Rogers, Marberry, and a nurse
named Haddix (whom we can ignore however because there
is no evidence that she neglected any of Miller’s needs),
charging them with deliberate indifference to his medical
problems in violation of the Eighth Amendment. The district
judge granted summary judgment in favor of the defend‐
12 No. 15‐1497
ants, however, mainly on the basis of the defendants’ claim
that Miller was not listed in the prison’s electronic database
as having a lower‐bunk restriction. This as I’ll show is al‐
most certainly incorrect.
He appealed to our court, again pro se, but while the
appeal was pending the court recruited counsel for Miller
and struck all the briefs that had been filed thus far with the
court. Four months later Miller died, causes unknown—so
far as appears no autopsy was performed. Miller’s lawyer
was permitted to substitute Miller’s estate as the appellant,
and the appeal was argued to this panel on November 29 of
last year.
Now it’s true that Rogers and Marberry, not being medi‐
cal personnel, were entitled to “rely on the expertise of med‐
ical personnel,” Arnett v. Webster, 658 F.3d 742, 755 (7th Cir.
2011), but nonmedical prison personnel “cannot [be permit‐
ted to] simply ignore an inmate’s plight” of which they’re
aware, id.—which a jury could well find was what happened
in this case. The defendants knew after Miller’s first fall from
an upper bunk, and from his complaints to both of them,
that he was in danger of a serious injury if he remained in an
upper bunk, and it would been the simplest thing in the
world for either or both of them to have conveyed his com‐
plaints to the prison’s medical staff for confirmation of
whether he already had, and if not should be given, a lower‐
bunk restriction.
Warden Marberry’s reactions to Miller’s complaints
made to her repeatedly in person as she made her rounds
through the Special Housing Unit were grossly insensitive—
so callous that they could have been expected to cost her her
job. All she would have had to do in response to Miller’s
No. 15‐1497 13
complaints was alert the prison’s medical staff to them; the
staff would have responded with alacrity to a directive by the
warden to determine whether Miller should be given (or in‐
deed already had, as indeed he did have after January 2008)
a lower‐bunk restriction. It would have taken her no time, no
effort, and no detailed knowledge of Miller’s condition to
respond intelligently to his repeated and plausible com‐
plaints (plausible given his brain tumor and his falls from
the upper bunk). After his first fall, and certainly after his
second, it must have been obvious to Marberry and Rogers
and any other prison personnel who knew of Miller’s condi‐
tion that he should not be consigned to an upper bunk.
And finally we know that Miller had been given a low‐
er‐bunk restriction in January 2008, before both of his falls
from his upper bunk, which occurred early the following
year; he just didn’t have a paper copy of it and so couldn’t
prove to Rogers’ satisfaction that he had such a restriction.
Warden Marberry confirmed in writing that Miller had been
given the restriction then and that it was recorded in the
prison’s database. As a defendant’s statement against inter‐
est, that confirmation was sufficient to create a factual dis‐
pute that could not be resolved by the district judge on
summary judgment. The contrary evidence was in fact weak,
for remember that it was the warden who said that Miller
had had a lower‐bunk restriction since January 2008; and
Rogers testified weakly that “it would have been” his prac‐
tice to rely on the number two officer in the Special Housing
Unit to check the database if an inmate complained that he
had a bunk restriction that wasn’t being honored. And more
weakly still: “I vaguely remember this inmate [Miller] and
do not specifically recall what his medical issues were or
may have been on January 6, 2009.”
14 No. 15‐1497
Marberry also pleaded forgetfulness. She claimed no
recollection of what if anything she’d done in response to
Miller’s repeated complaints about being denied a lower
bunk. (Obviously, nothing.) No defendant has argued that
all the lower bunks were filled by inmates who, like Miller,
could not be safely assigned to upper bunks, so that there
was no room for him. Most important, there is no evidence
that anyone checked the database to see whether, as Miller
repeatedly said, he had a lower‐bunk restriction.
The insouciance of Rogers and Marberry is remarkable,
as well as deplorable, when one recalls that both knew about
Miller’s brain tumor, about his wanting a lower bunk for
medical reasons, and about at least his first fall from the up‐
per bunk and his resulting hospitalization. (Almost certainly
they knew of the second fall as well.) True, Rogers is just a
guard, but as we said in Dobbey v. Mitchell‐Lawshea, 806 F.3d
938, 941 (7th Cir. 2015), “prison guards have a responsibility
for prisoners’ welfare. If a prisoner is writhing in agony, the
guard cannot ignore him on the ground of not being a doc‐
tor; he has to make an effort to find a doctor, or in this case a
dentist, or a technician, or a pharmacist—some medical pro‐
fessional.” See also Smego v. Mitchell, 723 F.3d 752, 757 (7th
Cir. 2013). If that’s true of a mere guard, it is a fortiori true of
a warden who knows that a prisoner’s potentially very dan‐
gerous health condition is being ignored by the prison’s
guards and medical staff that she—the warden—supervises.
I note that the Bureau of Prisons is required by law to
“provide suitable quarters and provide for the safekeeping,
care, and subsistence of all persons charged with or convict‐
ed of offenses against the United States … .” 18 U.S.C.
§ 4042(a)(2). The Bureau failed in this case. Quarters with an
upper‐bunk assignment are not suitable for someone with
No. 15‐1497 15
the kind of brain tumor that Miller had; he was denied both
safekeeping and care. This is a classic case of turning a blind
eye to “a substantial risk of serious harm to a prisoner.” Pe‐
rez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015).
Judge Easterbrook’s opinion cites Ashcroft v. Iqbal, 556
U.S. 662, 677 (2009), for its rejection of a theory of “supervi‐
sory liability” that would make supervisors liable for
“knowledge and acquiescence in their subordinates’ use of
discriminatory criteria to make classification decisions
among detainees.” The Court in Iqbal thus rejected the prop‐
osition that a supervisor’s mere knowledge of a subordi‐
nate’s discriminatory purpose amounts to the supervisor’s
violating the Constitution. “[P]etitioners may not be held ac‐
countable for the misdeeds of their agents. … Absent vicari‐
ous liability, each Government official, his or her title not‐
withstanding, is only liable for his or her own misconduct.
In the context of determining whether there is a violation of
a clearly established right to overcome qualified immunity,
purpose rather than knowledge is required to impose … lia‐
bility on the subordinate for unconstitutional discrimination;
the same holds true for an official charged with violations
arising from his or her superintendent responsibilities.” Id.
I have no quarrel with that. But knowledge and duty can
be entwined. “A prison official’s knowledge of prison condi‐
tions learned from an inmate’s communications can, under
some circumstances, constitute sufficient knowledge of the
conditions to require the officer to exercise his or her author‐
ity and to take the needed action to investigate and, if neces‐
sary, to rectify the offending condition.” Vance v. Peters, 97
F.3d 987, 993 (7th Cir. 1996). Both Rogers and Marberry were
responsible for the safety of prison inmates and were on no‐
tice that Miller’s safety was jeopardized as a consequence of
16 No. 15‐1497
confining him to an upper bunk. They were complicit in his
suffering and may have hastened his death.
A dog would have deserved better treatment.
We should reverse.