Norman v. Schuetzle

*1112BYE, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s decision reversing the district court’s denial of qualified immunity to Warden Tim Schuetzle. I dissent, in part, because, based on the facts as alleged by James Norman, a reasonable jury could conclude the remaining appellants violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

“[T]he eighth amendment’s prohibition against cruel and unusual punishment requires prison officials to ‘take reasonable measures to guarantee’ inmate safety by protecting them from attacks by other prisoners.” Young v. Selk, 508 F.3d 868, 871-72 (8th Cir.2007) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (emphasis added)). Prison officials act unreasonably — thereby violating the Eighth Amendment — when they are “deliberately indifferent to a ‘substantial risk of serious harm.’ ” Id. at 872 (quoting Farmer, 511 U.S. at 828, 114 S.Ct. 1970). To prove deliberate indifference, an inmate must make a two-part showing: “The first requirement tests whether, viewed objectively, the deprivation of rights was sufficiently serious. The second requirement is subjective and requires that the inmate prove that the prison officials had a ‘sufficiently culpable state of mind.’ ” Irving v. Dormire, 519 F.3d 441, 446 (8th Cir.2008) (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970) (internal citation omitted). The deprivation is “ ‘objectively, sufficiently serious,’ [under the first requirement when] the official’s failure to protect resulted in the inmate being ‘incarcerated under conditions posing a substantial risk of serious harm.’ ’” Young, 508 F.3d at 872 (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). “An official is deliberately indifferent [under the second requirement] if he or she actually knows of the substantial risk and fails to respond reasonably to it.” Id. at 873 (citing Farmer, 511 U.S. at 844-45, 114 S.Ct. 1970) (emphasis added).

When considering the first requirement, the assailant’s conduct can provide us “the most probative evidence of the degree and type of risk that [the inmate] faced.” Id. at 872. When viewed in the light most favorable to Norman, evidence of Michael Meyers’s conduct shows a substantial risk of serious harm to Norman existed. Meyers’s past conduct proved conclusively he was prone to violent, assaultive behavior. In the two-year period prior to the assault on Norman, Meyers had been administratively sanctioned for five assaultive incidents. He had been removed to administrative segregation and required to undergo anger management training. Meyers completed his punishment and was released back into general population, but after returning to general population, Meyers, who worked as a prison barber, cut the letters “cho” into an inmate’s hair identifying him as a child molester. In a prison population child molesters are viewed with disdain and Meyers’s desire to openly brand another inmate, thereby exposing him to a serious risk of violent assault, demonstrates he continued to pose a significant threat to other inmates.

It is with this background in mind that Meyers’s threats against Norman have to be evaluated to determine if Norman faced a substantial risk of serious harm. Approximately two weeks before Meyers attacked Norman, Mary Materi was told about “some black guy [who] was looking to hire someone to beat up Norman.” Additionally, Dan Wrolstad, the prison’s educational director, was aware several inmates were angry at Norman and considering action against him. A day prior to the assault, Brian Taylor, a correctional officer assigned to the cellblock where *1113Meyers was housed, called Marc Schwehr, who worked in Norman’s cellblock, informing him Meyers was threatening to attack Norman.3 Shortly after receiving the call from Taylor, Meyers attempted to convince Schwehr to let Norman out of his cell for a haircut. The district court found evidence the request was made under suspicious circumstances because “Norman was on cell confinement for the evening and Schwehr understood that persons on cell confinement were not allowed out for a haircut, but Meyers attempted to convince him that the policy had changed.” Later, Meyers had a towel delivered to Norman in a further attempt to lure him out of his cell. In response to Meyers’s threats against Norman and his attempt to lure Norman from his cell, Schwehr notified his superior and placed a warning in the logbook indicating Meyers may assault Norman. Finally, Norman states Schwehr told him it looked as if “someone was out to get him.”

Based on this evidence, it is objectively apparent Norman faced a substantial risk of serious harm. As early as two weeks before the attack an inmate was soliciting other inmates to assault Norman, and Meyers, who had proven himself a threat to other inmates on numerous occasions, agreed to do the job. The day before the assault, Meyers openly threatened to attack Norman and attempted to have him released from his cell to facilitate the attack. The fact that Schwehr advised his superior, refused to release Norman from his cell, placed a written warning in the logbook memorializing the threats, and warned Norman all strengthen the conclusion about the danger to Norman being very real.

When considering the second requirement, we ask whether Norman has presented sufficient evidence of the subjective aspect of his Eighth Amendment claim. “To meet this requirement, [Norman must] show that the defendants exhibited a sufficiently culpable state of mind, that is, [they] must have been deliberately indifferent to the substantial risk of serious harm to [Norman].” Young, 508 F.3d at 873 (citation and internal quotation marks omitted). “An official is deliberately indifferent if he or she actually knows of the substantial risk and fails to respond reasonably to it.” Id. (citing Farmer, 511 U.S. at 844-45, 114 S.Ct. 1970) (emphasis added). “The question of whether the official knew of the substantial risk is a factual one ‘subject to demonstration in the usual ways, including inference from circumstantial evidence.’ ” Id. (citing Farmer, 511 U.S. at 842, 114 S.Ct. 1970). Norman need not show “that a prison official acted or failed to act believing harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Moreover, “in order to have a viable deliberate indifference claim, a plaintiff is not required to allege and prove that the defendant ... specifically knew about or anticipated the precise source of the harm.” Kahle v. Leonard, 477 F.3d 544, 551 (8th Cir.2007) (emphasis in original) (quoting Krein v. Norris, 309 F.3d 487, 491 (8th Cir.2002)).

*1114I conclude Norman’s evidence is sufficient to avoid summary judgment on the subjective component of his Eighth Amendment claim. As previously noted, inmate Meyers had a long history of violent assaultive behavior. On the evening before he assaulted Norman, Meyers told Taylor he intended to assault Norman and Taylor forwarded the threats on to Schwehr. Schwehr contends Taylor characterized Meyers’s threats as “joking” and downplays their seriousness. On such a record, I conclude, unlike the majority, that the import of Meyers’s threats cannot be minimized when determining if summary judgment was appropriate. Schwehr’s own words and actions undermine his self-serving claim he subjectively viewed the threats as incredible. After Taylor informed Schwehr of Meyers’s threats against Norman, Meyers tried to talk Schwehr into releasing Norman from his cell. In his affidavit, Schwehr suggests he had no idea why Meyers wanted Norman out of his cell. Incredibly, he disregards the most obvious reason — to facilitate the threatened assault on Norman. Despite Schwehr’s convenient omission in his affidavit, his actions at the time indicate he took the threats seriously. His affidavit confirms his suspicions and he did not believe Meyers’s proffered reasons for wanting access to Norman: “I did not know whether Meyers [sic] request was an attempt by Meyers to get Norman out of his cell so Meyers could give Norman a haircut, to talk to him, to buy something for him, or any number of other possible reasons.” Indeed, because of the threats and the “towel incident” Schwehr refused to release Norman from his cell. Instead, he notified his superior and made a notation in the logbook warning of a possible assault. Schwehr also told Norman: “It looks like someone is trying to set you up.”

Schwehr was made expressly aware that Meyers, an inmate with a long history of violence, was threatening to attack Norman. Schwehr was also aware of Meyers’s suspicious attempts to have Norman released from his cell. Having been made aware of the substantial risk of serious harm to Norman, Schwehr’s duty under the Eighth Amendment was “to take reasonable measures to abate it.” Farmer, 511 U.S. 848, 114 S.Ct. 1970 (“[A] prison official may be held liable under the Eighth Amendment ... only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”); see also Prater v. Dahm, 89 F.3d 538, 541 (8th Cir.1996) (“[An inmate’s] pleadings must demonstrate that the prison officials failed to act reasonably despite knowledge of a substantial risk of serious harm....”). I conclude, as did the district court, Schwehr actually knew of the substantial risk to Norman but recklessly disregarded the known risk by failing to take reasonable measures to protect him. As a threshold matter, before addressing the unreasonableness of Schwehr’s actions, I first address the majority’s misapprehension of controlling precedent.

In direct contravention of controlling Supreme Court precedent, the majority bushes aside the evidence and holds Schwehr was not required to act reasonably in response to his subjective knowledge of the substantial risk of serious harm to Norman. “[W]e have noted on numerous occasions that reasonableness is a negligence standard, and mere negligence does not support a conclusion that [a prison official] exercised callous disregard or reckless indifference in responding to a risk[.]” Ante, at 1106 (internal quotation marks and citation omitted). The majority states:

Schwehr’s failure to take additional security measures may not have been the best judgment call in hindsight, but giv*1115en the circumstances known to Schwehr at the time we cannot say that Schwehr engaged in unconstitutionally cruel and unusual punishment when he noted the threat in the logbook and contacted his supervisor but did no more.

Ante, at 1107 (internal citations omitted). Instead of measuring Schwehr’s attempts to abate the risk to Norman against a reasonableness standard, the majority holds Norman cannot prevail unless Schwehr acted recklessly. This is quite simply wrong.

To be sure, the legal concept of “recklessness” is germane to this discussion. It is not, however, the standard by which Schwehr’s actions, after he became aware of the substantial risk of serious harm to Norman, are judged. The Supreme Court has clearly and repeated stated an official must act reasonably to abate such harm. Recklessness, as used by the Supreme Court, speaks to the official’s deliberately indifferent state of mind. “[Deliberate indifference describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835, 114 S.Ct. 1970 (emphasis added). As such, an official’s state of mind is not relevant to whether he acted reasonably in response to the known risk, but rather whether his disregard of the risk was done recklessly or with deliberate indifference. In other words, “subjective recklessness ... [is] the test for ‘deliberate indifference’ under the Eighth Amendment.” Id. at 839-40, 114 S.Ct. 1970. “[T]o act recklessly ... a person must ‘consciously disregard]’ a substantial risk of serious harm.” Id. at 839, 114 S.Ct. 1970 (citing Model Penal Code § 2.02(2)(c)). Nowhere has the Supreme Court suggested an official’s actions, taken in response to a known substantial risk of serious harm, are to be judged by a recklessness standard. To the extent this court’s precedent may hold otherwise, it is of no consequence and must yield to the Supreme Court’s most clear pronouncements.

Turning now to an analysis of Schwehr’s actions, I conclude he failed to act reasonably to abate the risk to Norman. As noted, despite Meyers’s proven propensity for violence, Schwehr did not take the threats against Norman seriously. Schwehr’s casual attitude towards a violent inmate’s threats of violence against another inmate and his attempts to gain access to the inmate, constitute a deliberate disregard of a substantial risk of serious harm. In response to this known risk, Schwehr states he informed his supervisor as to Meyers threatening to attack Norman. He neglects, however, to share the identity of the supervisor (beyond indicating it was an unidentified lieutenant) or to tell the court what, if any, actions he was instructed to take.4 Such information is vital to any inquiry into the reasonableness of his actions, and the failure to provide it precludes any meaningful evaluation of Schwehr’s conduct. All we know is he claims to have made a telephone call, which, as a matter of law, cannot be adjudged reasonable under the circumstances. If Schwehr was instructed to take further action but disregarded those orders, he acted unreasonably. Similarly, if Schwehr was instructed to and did ignore the known risk, he also acted unreasonably. The only other action Schwehr took was to make a notation in the cell-block logbook indicating “Meyers, Michael may assault Norman, James.” Schwehr undertook no investigation of the threats, did not speak with other on-duty *1116officers about the threats, and did not inform Norman about Meyers threatening him. Based on this evidence, I have no trouble concluding a jury could find Sehwehr failed to take reasonable actions once he became aware of the substantial risk of serious harm to Norman. I also note the majority, though it mistakenly measures Schwehr’s actions by a recklessness standard, also concludes Sehwehr exercised poor judgment.

I further conclude the evidence supports Norman’s claim as to Materi recklessly disregarding the substantial risk of serious harm Meyers posed to him. The morning after Meyers threatened Norman and attempted to gain access to him, Materi, who two weeks earlier had been informed of threats against Norman, came on duty at 5:30 a.m. at Norman’s cellbloek. She denies actually reading the logbook containing Schwehr’s notation regarding Meyers’s threats against Norman, but her denial is contradicted by a notation she made indicating she read it upon arriving at work. Despite this knowledge, which we must assume, Materi took no action to protect Norman and the assault occurred at approximately 6:20 a.m. The majority concludes Materi was too busy to take any action to protect Norman, including conferring with other prison staff members or locking Norman in his cell until such time as she could properly investigate the threats. A jury, however, might readily conclude it was unreasonable for Materi to do nothing. The majority excuses Materi’s inaction by concluding she was reasonable in assuming the matter had been communicated to other staff members. Assuming other staff members had been briefed about the threats, they were not privy to the additional information Materi had received two weeks earlier which corroborated the threats outlined in the logbook. The immediate and specific threats by Meyers, coupled with the information conveyed to Materi earlier, substantially increased the credibility of the risk to Norman. It was, therefore, unreasonable for Materi to withhold information critical to a full and accurate assessment of the situation and to take no action to prevent the assault.

Finally, the majority disregards Materi’s statement indicating if she “had any valid information about a planned assault on Norman [she] would have immediately began an investigation.” The majority finds the statement has no probative value because it was made in reference to the information Materi received two weeks earlier about an inmate attempting to hire someone to attack Norman. I find this reasoning curious. Materi stated upon receipt of valid information concerning a planned assault an investigation should immediately be started. Her belief as to what steps should be undertaken in such circumstances is directly relevant to whether she acted reasonably to protect Norman. Unlike the majority, I find no basis for discounting Materi’s account of proper procedure simply because it referenced an incident which predated the assault on Norman. A jury, based on Materi’s statement, would almost certainly conclude on the day Norman was assaulted she held the same understanding of what procedures to follow in the event a credible threat against an inmate was received.

I also disagree with the majority’s decision granting qualified immunity to Dan Wrolstad on the basis of Norman’s asserted constitutional right as not being clearly established.

In early 2005, Norman began complaining to Warden Tim Schuetzle about a restaurant class offered through the prison education department. In particular, Norman complained about funding for the class and accused Wrolstad, the prison’s *1117education director, of misusing government funds. These complaints followed earlier complaints by Norman accusing Wrolstad of other misdeeds. While his complaints regarding the class were pending, Norman filed another complaint with Schuetzle contending Wrolstad had given a copy of his complaints to other inmates and in doing so was attempting to incite them to retaliate. Schuetzle instructed Wrolstad he should not disseminate inmate grievances among other inmates. According to Norman, his complaints could have caused some class activities to be eliminated which would have angered inmates taking the class. He further alleges, Wrolstad gave the complaints to other inmates out of a desire to retaliate for the recent and earlier grievances filed against Wrolstad.

To prove his allegations against Wrolstad, Norman offered the affidavits of two inmates. One inmate indicated he observed another inmate enter a classroom carrying nothing, and later leave the room carrying a piece of paper. According the affidavit, Wrolstad and the other inmate were the only two people in the room. The affiant further stated the other inmate came into the room he was in and showed him the paper which was a copy of Norman’s grievance. The inmate then discussed the grievance with the affiant and another inmate, including what actions should be taken against Norman.

A second inmate offered a similar affidavit, indicating he saw a piece of paper, overheard the conversation about retaliating against Norman, but was unable to actually read the document.

Finally, Norman offered an affidavit submitted by Wrolstad to the warden in response to one of Norman’s grievances. In it Wrolstad denied showing the grievance to any inmates but conceded he was aware inmates were angry and complaining about Norman’s activities.

The majority concedes Norman has presented sufficient evidence from which a jury could infer Wrolstad provided copies of Norman’s grievances to other inmates. The majority nonetheless concludes Wrolstad’s actions did not violate Norman’s clearly established constitutional rights. I must respectfully disagree.

Norman’s pro se complaint alleges:

Mr. Wrolstad purposely passed my confidential letter and grievances around to inmates in his dept, as a retaliatory action in hopes of getting me to stop requesting information from him and the way things were being run in his dept.. And Mr. Wrolstad’s disregard to my confidential rights have lead [sic] to the recent assault on me.

Appendix of Appellee, p. 16.

Construing the complaint liberally, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding a pro se complaint must be liberally construed), Norman has alleged Wrolstad’s actions were taken in retaliation for grievances Norman filed against Wrolstad. A prisoner’s right under the First Amendment to petition for redress of grievances under a prison’s grievance procedures is clearly established in our court. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989) (“[T]he First Amendment right to petition for redress of grievances includes redress under established prison grievance procedures.”). Similarly, it has for twenty years been the law of this circuit that actions taken in retaliation for p,n inmate’s filing of a grievance are actionable under 42 U.S.C. § 1983. Id. (citing Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir.1988)). The right to be free from retaliation for availing one’s self of the prison grievance process is also clearly established in other circuits. See, e.g., Rivera v. Senkowski, 62 *1118F.3d 80, 86 (2d Cir.1995) (“[A]n inmate’s right to be free of retaliation for filing grievances was in 1990 and 1991 a clearly established statutory or constitutional right [] of which a reasonable person would have known.”) (internal quotation marks and citation omitted); Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995) (holding it is unconstitutional for a prison official to retaliate against an inmate for filing a grievance); Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir.1996) (holding retaliation directed against an inmate for filing a grievance violates clearly established constitutional law); and Farrow, v. West, 320 F.3d 1235, 1248 (11th Cir.2003) (“The First Amendment forbids prison officials from retaliating against prisoners for exercising the right of free speech.”).

To prevail on a claim of retaliation, a prisoner must show 1) he engaged in a protected expression, 2) he suffered an adverse action, and 3) the adverse action was causally related to the protected expression. See Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir.2004). The first prong presents no barrier to Norman’s retaliation claim. He alleges Wrolstad’s actions were taken in response to grievances Norman filed, and access to the grievance process is protected under the First Amendment.

As for the second prong, Norman alleges Wrolstad distributed copies of his grievances to other inmates to put them on notice as to Norman’s complaints possibly leading to the cancellation of an inmate cookout planned as part of a restaurant management class. He further alleges the affected inmates would be angered — to the point of taking action against him — by the prospect of being deprived of the much-anticipated outing. To prove he suffered an adverse action, Norman offers a response from Warden Schuetzle to one of his grievances indicating it was a violation of prison policy to distribute an inmate’s grievances to other inmates and Wrolstad should not be showing Norman’s grievances to other inmates. Additionally, he offers an affidavit from Wrolstad indicating several inmates were upset by Norman’s attempts to sabotage the inmate cookout. As noted by the district court, Wrolstad’s decision to distribute Norman’s grievances to other inmates must be evaluated against the backdrop of prison life. “[W]e are not dealing here with a population of entirely reasonable and rational persons. Moreover, it is conceivable that prisoners may get upset about what otherwise are trivial matters, particularly those that might provide temporary respite from the boredom of prison life.” Assuming, as we must, that Wrolstad disclosed the content of Norman’s grievances to inmates whose interests stood to be adversely affected, the evidence shows Wrolstad’s actions violated prison policy. A reasonable jury could conclude Wrolstad was aware of prison policy and his decision to violate the policy is evidence he intended to anger and incite the other inmates. Such a conclusion is especially reasonable in light of the fact that Wrolstad has offered no legitimate reasons for his violation of prison policy. Furthermore, in his affidavit Wrolstad acknowledges he was aware the other inmates were angry and discussing what action they should take in retaliation against Norman.

After carefully reviewing Norman’s allegations and the evidence offered to support his claims, I cannot accede to the majority’s conclusion finding no evidence to suggest Wrolstad intended to incite other inmates against Norman. The mere fact Wrolstad disclosed the information in direct violation of prison policy, without offering any legitimate reasons for having done so, counsels against such a conclusion. A prison policy prohibiting the dissemination of confidential information con*1119tained within inmate grievances serves the purpose of preventing sensitive, potentially volatile, information from coursing through the nether world of prison life. The unique mischief that disclosure of such information may advance within a prison’s walls would be readily apparent to any reasonable prison official. Therefore, under the facts as alleged, Wrolstad was on fair notice his conduct was unconstitutional. Bonner v. Outlaw, 552 F.3d 673, 679 (8th Cir.2009). Accordingly, I conclude Norman has presented sufficient evidence from which a jury could conclude Wrolstad, with retaliatory intent, disclosed the contents of Norman’s grievances to other inmates for the purpose of provoking them to take action against Norman.

Finally, Norman has also offered sufficient evidence to prove the disclosure of his grievances and resulting attack were causally related to the exercise of his First Amendment right. Norman filed multiple grievances complaining about Wrolstad’s management of the prison’s educational program. The complaints sought to curtail or eliminate elements of the program, alleged misconduct by Wrolstad, and demanded his dismissal. In the absence of any other explanation, a jury could reasonably conclude Wrolstad’s violation of prison policy was undertaken with a retaliatory motive. Additionally, Norman’s evidence shows the inmates to whom the information was disclosed plotted to take action against him for jeopardizing the inmate cookout. Two weeks prior to the assault, Materi was informed an inmate was soliciting other inmates to attack Norman. The evening before the assault Meyers threatened to attack Norman and attempted to have Norman released from his cell. Finally, an eye-witness to the assault stated it appeared to have been planned in advance and was not the result of a mutual disagreement between Norman and Meyers.

In summary, I concur in the majority’s decision reversing the district court’s denial of qualified immunity to Warden Schuetzle. I respectfully dissent from Parts II.B, II.C, II.D, and III of the opinion because, based on the facts as alleged, a reasonable jury could conclude the remaining appellants violated the Eighth Amendment’s prohibition against cruel and unusual punishment focused upon prison inmate James Norman.

. The majority minimizes the seriousness of the threats by adopting Taylor's claim that "Meyers was joking about fighting with Norman ...." Ante, at 1106. When reviewing the denial of qualified immunity we consider the evidence in the light most favorable to the non-moving party, Irving, 519 F.3d at 446, and the majority's characterization of Meyers's threats as "joking” is not supported by the evidence. Meyers’s past violent behavior, his threats against Norman, his attempts to gain access to Norman the evening before the assault, and the attack on Norman all clearly indicate Meyers was not joking.

. Notably, the district court ordered Schwehr to produce any written reference or note documenting a contact between Schwehr and the unidentified lieutenant and none was produced. Nor has Schwehr provided an affidavit from the mystery lieutenant.