Schoelch v. Mitchell

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2776
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Charles Schoelch, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Emmett Mitchell, individually and in *
official capacity; St. Louis County; *
Michael Henderson, Capt., individually *
and in official capacity; Cheryl Stone; *
Kenneth Reed, Major, Internal Affairs *
Officer, individually and in official *
capacity; Roy Mueller, Director of *
Department of Justice Services, *
individually and in official capacity; *
John Szuba, Unit Manager, St. Louis *
County Justice Center; John and Jane *
Does, individually and in official *
capacity, *
*
Appellees. *
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Submitted: March 9, 2010
Filed: November 12, 2010
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Before BYE, ARNOLD, and COLLOTON, Circuit Judges.
___________

COLLOTON, Circuit Judge.
 Darien Lindsey attacked fellow pretrial detainee Charles Schoelch, leaving
Schoelch with facial injuries that required surgery. Schoelch brought this action,
pursuant to 42 U.S.C. §§ 1983, 1986, and 1988, against jail guard Emmett Mitchell,
alleging that Mitchell failed to protect him from Lindsey. He also asserted that
various supervisory officials and St. Louis County should be held liable for failing to
protect him and for failing to train and supervise Mitchell. The district court1 granted
summary judgment for Mitchell and the other defendants, and we affirm.2

I.

On review of a summary judgment, we recount the facts in the light most
favorable to Schoelch. After his arrest for felony theft on July 27, 2004, Schoelch was
detained in the St. Louis County Justice Center pending trial. He was assigned to
housing unit 6B, a direct supervision unit that typically held approximately 66 or 67
inmates. In direct supervision units, inmates may move freely about the housing unit,
unless the unit is on “lock down” status and the inmates are confined in their cells.
Lindsey, who awaited trial on charges of robbery, armed criminal action, and drug
distribution, also was housed in unit 6B. As of September 7, 2004, Emmett Mitchell,

1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
2
After the case was submitted, counsel for Mitchell filed a suggestion of death,
pursuant to Federal Rule of Appellate Procedure 43(a)(1), notifying the court that
Mitchell died on June 10, 2010, and that he has no personal representative. In
response to an order to show cause why the appeal against Mitchell should not be
dismissed, Schoelch moved to substitute a personal representative, but identified no
such representative, and requested time to file a claim in probate proceedings in
Missouri and report back to this court. Because resolution of Schoelch’s claims
against Mitchell facilitates the disposition of other claims at issue on appeal, we elect
to proceed to the merits. See Aswegan v. Harper, No. 98-4036, 2000 WL 116051, at
*1 n.1 (8th Cir. Jan. 12, 2000).

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a fifty-nine-year-old guard who started working at the Justice Center in 1992, was
assigned to work in unit 6B.

Lindsey, nicknamed “Big D,” had a reputation among Justice Center officers
for aggressiveness and misbehavior. An officer remarked in a report dated February
9, 2004, that Lindsey exhibited “bizarre behavior,” including “depression, high
anxiety, attention seeking, [and] sudden changes in behaviors from high to low,”
which the officer speculated might be “suicidal signs.” On March 14, guard Sue
Weatherford witnessed Lindsey fight inmate Demetrius Taylor. On June 1, after Amy
Vaughn released Lindsey from his cell for a shower, he charged after inmate David
Allen. Vaughn was unable to stop Lindsey until other officers responded to her call
for assistance.

Schoelch’s troubles began on October 27, 2004, when Mitchell placed him on
lock down for sneaking food to his cell after lunch and for cursing. Schoelch and
another inmate then allegedly caused a flood of water in unit 6B, although the source
of the water is not apparent from the record. Upon discovering the flood, Mitchell
announced the cancellation of activities and commissary privileges for all inmates.
Mitchell allowed Lindsey to assist with cleaning up the water. Lindsey, evidently
upset with Schoelch for causing a loss of privileges for all inmates in the unit, asked
Mitchell to open Schoelch’s cell so that he could assault him. Mitchell did not accede
to Lindsey’s request, but Lindsey paced near Schoelch’s cell during the cleanup
process and continued to threaten Schoelch.

Approximately thirty minutes after Lindsey first threatened Schoelch, Mitchell
opened Schoelch’s cell. Schoelch testified in an administrative hearing that he now
“assume[s]” that Mitchell opened his cell so that it could be cleaned. Lindsey entered,
saying that he intended to “kill” Schoelch. He grabbed Schoelch and slammed him
against the wall. The incident lasted “[m]aybe a couple seconds,” according to
Schoelch, and ended when another inmate intervened.

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 After that incident, Schoelch sought neither medical attention nor a transfer
from unit 6B. He did not report an assault to Mitchell, because he suspected that
Mitchell was aware of the incident. Schoelch complained to Lieutenant Michael
Henderson about being locked in his cell as punishment for the flooding incident, but
he did not report an assault to Henderson. Schoelch mentioned an assault to
Lieutenant Cedric Kelly, but did not name the assailant. According to Schoelch, he
and Lindsey “agreed [and] shook hands,” and “nothing was ever more said about” the
incident.

Early on the morning of November 12, Mitchell opened Joshua Hoth’s cell door
after Hoth failed to respond to orders to prepare for a court appearance. Lindsey
entered, pulled Hoth out of his cell, and said “get your ass out here for court.”
Lindsey released Hoth from his grasp when Hoth exited the cell. Hoth approached
Mitchell, complained about Lindsey entering his cell, and then proceeded to his court
appearance.

Also on November 12, after the incident with Hoth, Lindsey had another
altercation with Schoelch. As inmates stood in line for lunch, Lindsey yelled at
Schoelch for making excessive noise in the unit and pushed him. Mitchell was at a
nearby podium from which he had an unobstructed view of the push, but he did not
intervene. Schoelch turned away from Lindsey. After Schoelch picked up a lunch
tray and sat down to eat, Lindsey approached him and, according to Schoelch, “started
swinging.” Schoelch slid his chair away from Lindsey, but Lindsey connected with
one blow to the face. Approximately ten seconds elapsed between when Lindsey
approached Schoelch and the end of the attack. Mitchell was looking in the direction
of Lindsey and Schoelch during the attack, but did not respond.

Schoelch continued eating his lunch before recognizing that he was bleeding.
Holding his face, he approached Mitchell and asked to be seen by a nurse. He also
asked Mitchell to open his cell door. Mitchell opened the cell door, and Schoelch

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proceeded to his cell. Mitchell called Henderson and asked him to check on Schoelch.
After Henderson arrived, Schoelch informed Henderson that Lindsey punched him at
lunch. Soon after the attack on Schoelch, Hoth informed Henderson about Lindsey
entering his cell to rouse him.

Henderson called for a nurse to assist Schoelch, and then escorted Lindsey to
the eighth floor of the jail to be placed on lock down status and segregated from other
inmates. Schoelch was taken to a hospital, where a CAT scan revealed several facial
fractures. He also lost teeth in the attack. Schoelch underwent reconstructive surgery
approximately one month later. Following an internal investigation, Mitchell was
fired for violations of several jail policies arising from the incidents of October 27 and
November 12.

Schoelch brought this action against Mitchell, several supervisory officials, and
St. Louis County.3 He alleged that Mitchell and the supervisory officials failed to
protect him from Lindsey’s assaults. Schoelch also asserted that the officials knew
about inadequacies in Mitchell’s training and performance, and that Lindsey should
have been incarcerated in a more secure housing unit. According to Schoelch,
municipal liability should be imposed against St. Louis County.

The district court granted summary judgment for the defendants. The court
ruled that the record did not show any defendant failed to respond reasonably to a
substantial risk of harm. The court also found that Schoelch’s allegation that Mitchell
received insufficient training and supervision was unsupported by evidence, and
determined that classifying Lindsey such that he was housed in a direct supervision
unit with Schoelch did not constitute deliberate indifference.

3
Although the complaint also names “John/Jane Does,” we find no record that
Schoelch identified these parties.

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 II.

We review the grant of summary judgment de novo, construing the evidence in
the light most favorable to Schoelch and drawing all reasonable inferences in his
favor. Summary judgment is appropriate when the record presents no genuine issue
of material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56. We may affirm on any basis supported by the record. Moyle v. Anderson,
571 F.3d 814, 817 (8th Cir. 2009).

The Eighth Amendment requires officials to “provide humane conditions of
confinement” by taking reasonable steps to protect inmates convicted of crimes from
assault by other inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Schoelch’s
custodians had a comparable duty to protect Schoelch as a pretrial detainee, although
this duty arose under the Due Process Clause of the Fourteenth Amendment. Kahle
v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007). To prove unconstitutional failure to
protect from harm, Schoelch must show (1) an “objectively, sufficiently serious”
deprivation, meaning that he was incarcerated under conditions posing a substantial
risk of serious harm, Farmer, 511 U.S. at 834 (internal quotation omitted), and (2) that
the defendant was deliberately indifferent to the substantial risk of serious harm. Id.
The second requirement is a subjective test; the defendant must be “aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Id. at 837.

We begin with Schoelch’s claim that Mitchell violated his constitutional rights
by failing to protect him from Lindsey. Schoelch suggests that the October 27
incident on its own demonstrates a constitutional violation. The district court
concluded that Schoelch’s “allegation that defendant Mitchell opened his cell so that
Lindsey could hurt [him] is not supported by the evidence,” but this is not sufficient
reason to dispose of the claim. Even assuming the court was correct about Mitchell’s
purpose, Schoelch need not prove that Mitchell acted with specific intent to harm.

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“Farmer stands for the broad proposition that deliberate indifference includes
something more than negligence but less than actual intent to harm.” Newman v.
Holmes, 122 F.3d 650, 653 (8th Cir. 1997). If Schoelch can show that Mitchell
evinced deliberate indifference to his safety by opening the cell door, Schoelch might
satisfy the subjective prong of his constitutional claim.

There may well be a submissible case of subjective deliberate indifference on
this record. The question is at least close enough that we prefer to resolve the case on
other grounds. Although Mitchell may legitimately have wanted Lindsey to clean
Schoelch’s cell, he also knew that Lindsey had requested only thirty minutes earlier
that Mitchell open the cell so that Lindsey could enter for the specific purpose of
assaulting Schoelch. The presence of a legitimate reason for opening the cell does not
foreclose the possibility that Mitchell was deliberately indifferent to the fact that
allowing Lindsey, in particular, to enter for any purpose created a substantial risk of
harm to Schoelch.

Assuming for the sake of argument that Schoelch’s claim survives the
subjective prong, however, we conclude that Schoelch failed to present sufficient
evidence to establish that he suffered an objectively serious deprivation. The
complaint alleges no injury, and the record includes no evidence that Schoelch
suffered physical or mental injury on October 27. In response to an interrogatory
asking him to describe “every mental or physical injury” that he claimed to suffer as
a result of the occurrences mentioned in the complaint, Schoelch asserted no injury
on October 27. He described only injuries suffered on November 12.

To establish a “conditions-of-confinement” claim, including one based on an
alleged failure to protect, see Wilson v. Seiter, 501 U.S. 294, 303 (1991), Schoelch
must show that “the alleged wrongdoing was objectively ‘harmful enough’ to
establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8 (1992)
(quoting Wilson, 501 U.S. at 303). Schoelch must demonstrate that he suffered

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“extreme deprivations,” meaning that he was denied the “minimal civilized measure
of life’s necessities.” Id. at 9 (internal quotation omitted); see Farmer, 511 U.S. at
834. The objective standard that must be satisfied in a conditions-of-confinement
claim differs from that applicable in the excessive force context, where the malicious
and sadistic use of force by prison officials always violates “contemporary standards
of decency.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (quoting Hudson, 503
U.S. at 9); see also Hudson, 503 U.S. at 27 (Thomas, J., dissenting) (disagreeing with
the Court’s holding that serious injury is not required to prove an excessive force
claim under the Eighth Amendment when the injury requirement “remains applicable
to all other prison deprivations”).

Just as an inmate alleging unconstitutional conditions of confinement based on
an unreasonable delay in the provision of medical care, see Wilson, 501 U.S. at 303,
must show that the delay caused objectively serious harm, Beyerbach v. Sears, 49 F.3d
1324, 1326 (8th Cir.), abrogated on other grounds by Johnson v. Jones, 515 U.S. 304
(1995), Schoelch must show that the harm he suffered from Mitchell’s alleged failure
to protect him was objectively serious. See Irving v. Dormire, 519 F.3d 441, 448 (8th
Cir. 2008). Because Schoelch presented no evidence that he suffered an objectively
serious mental or physical injury from the conditions of his confinement on October
27, or that the conditions on that date (i.e., the failure to protect him from Lindsey on
that date) are likely to cause serious injury in the future, see Helling v. McKinney, 509
U.S. 25, 34 (1993), he has not satisfied the objective component of his failure-to-
protect due process claim.

As to the November 12 assault that caused Schoelch’s injury, we conclude that
the claim fails for lack of proof on the subjective element. There is insufficient
evidence to establish that Mitchell was deliberately indifferent to a substantial risk of
serious harm to Schoelch on that date. The October 27 incident between Schoelch and
Lindsey resulted in no injury, and the two men reconciled. Between October 27 and
November 12, Schoelch and Lindsey recreated, dined, and resided together in unit 6B,

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under Mitchell’s watch, without incident. Schoelch did not request a transfer from
unit 6B or otherwise suggest to anyone that Lindsey posed a threat.

Although Lindsey had a history of fighting, the incidents with inmates
Demetrius Taylor and David Allen occurred well before Schoelch’s incarceration at
the Justice Center. Mitchell had heard about the June 1 incident involving Allen, but
had not reviewed the incident report; otherwise, Mitchell was unaware of Lindsey’s
aggressive reputation.

Lindsey’s altercation with inmate Hoth on November 12 did not place Mitchell
on notice of a substantial risk that Lindsey would violently attack Schoelch at lunch.
Nor did Lindsey’s lunch-line push of Schoelch rise to that level of seriousness.
Schoelch responded to the push by moving through the lunch line and sitting down
to eat. He did not seek assistance from Mitchell or any officer. The attack that
followed played out so quickly that Schoelch did not even have time to raise his arms
for protection before Lindsey landed the blow, and it was finished before Mitchell
reasonably could have intervened.

Schoelch’s briefing makes much of Mitchell’s behavior after the attack,
including his failure to summon medical assistance for Schoelch despite conspicuous
facial injuries. Mitchell’s post-attack behavior, however, does not support Schoelch’s
claim that Mitchell failed to protect Schoelch from a harm that already had occurred.
Nothing about Mitchell’s alleged indifference to Schoelch’s post-attack plight
strengthens the case that Mitchell subjectively recognized a substantial risk of serious
harm before Lindsey’s attack. The evidence shows only that it was a surprise attack.
Therefore, the district court correctly concluded that Schoelch failed to present
sufficient evidence to show that Mitchell violated his constitutional rights.

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 III.

Schoelch also appeals the judgment in favor of Henderson, Cheryl Stone,
Kenneth Reed, Roy Mueller, and John Szuba, in their individual capacities. Schoelch
alleged in his complaint that these officials were liable for his injury, because they
failed to protect him, failed to train and supervise Mitchell, and permitted Lindsey to
remain in a direct supervision unit, despite the serious charges that he faced and his
altercations with other inmates. During Schoelch’s incarceration at the Justice Center,
Henderson was a lieutenant at the Justice Center, and Stone was manager for unit 6B.
As part of their duties, Henderson and Stone toured unit 6B regularly to make
themselves available to inmates with complaints. The other officials named in
Schoelch’s complaint held high-level positions within the St. Louis County
Department of Justice Services. Reed was an internal affairs officer; Mueller was the
Department’s director; and Szuba held a superintendent position.

Although Schoelch’s complaint states that these defendants knew of and
permitted Mitchell’s “pattern and practice of inappropriate behavior,” the record does
not support that allegation. Schoelch failed to notify either Henderson or Stone that
Lindsey entered his cell on October 27 until after the November 12 attack. There is
no evidence that any of these defendants knew that Lindsey had entered Schoelch’s
cell until after the November 12 attack. The defendants were not present in the lunch
area when Lindsey pushed and subsequently punched Schoelch.

Nor does the record contain evidence that the officials inadequately trained and
supervised Mitchell. To the contrary, Mitchell was trained to follow several policies
aimed at preventing incidents such as those that occurred on October 27 and
November 12. As discussed, Lindsey’s altercations with inmates Taylor and Allen
happened long before Schoelch’s incarceration, and the officials had no duty to
segregate Lindsey perpetually due to those earlier incidents or because he faced
significant criminal charges. See Norman v. Schuetzle, 585 F.3d 1097, 1105 (8th Cir.

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2009). The district court thus correctly granted summary judgment for Henderson,
Stone, Reed, Mueller, and Szuba.

IV.

Schoelch also appeals the district court’s dismissal of his claims for municipal
liability against St. Louis County and various officials in their official capacities.
Because we conclude that he has not presented a submissible case that any officer
committed a constitutional violation, the claim for municipal liability necessarily fails
as well. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).

* * *

The judgment of the district court is affirmed. Schoelch’s motion to
supplement the record is denied.
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