Daniel Schillinger v. Josh Kiley ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2404
DANIEL A. SCHILLINGER,
Plaintiff-Appellant,
v.
JOSH KILEY, RANDY STARKEY,
and RICHARD MATTI,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 16-cv-529-wmc — William M. Conley, Judge.
____________________
ARGUED SEPTEMBER 25, 2019 — DECIDED APRIL 6, 2020
____________________
Before FLAUM, SYKES, and SCUDDER, Circuit Judges.
SYKES, Circuit Judge. Daniel Schillinger, a Wisconsin pris-
oner, was brutally assaulted by another inmate as the pris-
oners were walking back to their housing unit after
recreation. He suffered a fractured skull, broken teeth, cuts,
and other serious injuries. Schillinger sued three prison
guards under 42 U.S.C. § 1983 for violating his Eighth
Amendment rights by failing to protect him from the attack.
2 No. 18-2404
The district judge screened the complaint and permitted
Schillinger to proceed on a claim that the officers failed to
take preventive action after learning of hostility between
Schillinger and his attacker during the recreation period
shortly before the attack. The judge later ruled that
Schillinger had not exhausted his administrative remedies
on this claim and entered summary judgment for the de-
fendants.
On appeal Schillinger argues that the judge should have
gleaned from his complaint two additional factual grounds
for a failure-to-protect claim against the officers: that they
did not respond fast enough to an alarm about a medical
emergency on his unit once the attack was underway and
they stood by without intervening to stop the attack while it
was ongoing. He also challenges the judge’s exhaustion
ruling.
We reject these arguments and affirm. The judge did not
overlook plausible alternative factual grounds for the claim
against these defendants. And we find no fault with the
judge’s exhaustion ruling. Though Schillinger pursued a
complaint through all levels of the prison’s inmate-
complaint system, he never mentioned the claim he raised in
this litigation: that the three officers were aware of threaten-
ing behavior by the attacker in the recreation area before the
assault and failed to take steps to protect him.
I. Background
Schillinger was a prisoner at Wisconsin’s Secure Program
Facility at the time of the assault. 1 We take the following
1Schillinger was transferred to Racine Correctional Institution in August
of 2016.
No. 18-2404 3
factual allegations from his complaint, accepting them as
true for present purposes. On the morning of September 17,
2015, Schillinger was playing chess with inmate Diaz in the
recreation area in the prison’s Delta Unit. At about 10:05 a.m.
they were approached by another inmate named Terry, who
made threats and demanded that Schillinger buy canteen
items for him.
Correctional Officer Randy Starkey approached the
group and asked, “are you guys horseplaying or are you for
real?” Diaz told Officer Starkey everything was under
control. Officer Starkey signaled for assistance from Correc-
tional Officer Josh Kiley, who came over and asked the
inmates if they were going to fight. Diaz said, “no[,] it’s all
good.”
Recreation ended at about 10:15 a.m. As Schillinger start-
ed to walk back to his cell in Charlie Unit, Officers Starkey
and Kiley asked if he was going to be okay. Schillinger said
he didn’t know because Terry made threats and he did not
trust Terry. Shortly thereafter, an inmate named Clark in the
Delta Unit cellblock overheard Officer Starkey tell an uni-
dentified “John Doe” sergeant that he thought there was
going to be a “rumble.” A couple of minutes after overhear-
ing this conversation, Clark heard a radio alarm calling for a
medical response on Charlie Unit.
When Schillinger and Terry arrived back in Charlie Unit,
Terry attacked. At the time of the assault, there were “no
staff on the range,” and Terry beat Schillinger for approxi-
mately eight to ten minutes before help came. When “staff”
finally arrived, they did not immediately break up the fight
but simply said “stop” for one to two minutes and made no
effort to intervene until after Schillinger was knocked un-
4 No. 18-2404
conscious. He suffered a skull fracture, cuts to the face
requiring stitches, a cut on his elbow, a lost tooth and a
chipped tooth, possible permanent nerve damage on the side
of his mouth, and a bruised lung.
On September 27 Schillinger filed an offender complaint
with the prison’s inmate-complaint system regarding the
September 17 beating. He described his injuries and ques-
tioned why “there was no correctional officer on the range at
the time of the incident” and “why it took so long for them
to respond.” He did not name his attacker. He did not
identify Officers Starkey or Kiley or refer to the involvement
of an unnamed sergeant. He made no mention of threaten-
ing behavior by the attacker before the assault.
In the meantime, prison security officials and the Grant
County Sheriff’s Office commenced an investigation of the
beating. As a result, the complaint examiner saw no need for
a duplicative administrative investigation and dismissed
Schillinger’s grievance without further action. That decision
was affirmed on administrative appeal.
Schillinger then filed a pro se complaint in federal court
against Officers Starkey and Kiley, a John Doe sergeant, the
prison’s security director, and the warden seeking damages
under § 1983 for violation of his Eighth Amendment rights.
As required by the Prison Litigation Reform Act (“PLRA” or
“the Act”), 28 U.S.C. § 1915A, the judge screened the com-
plaint to identify facially plausible claims. He concluded that
the complaint stated an Eighth Amendment failure-to-
protect claim against Officers Starkey and Kiley based on the
allegations that they were aware of Terry’s threat against
Schillinger during recreation and took no steps to protect
him from the ensuing attack. The judge also identified a
No. 18-2404 5
failure-to-protect claim against a “Sergeant John Doe” based
on the allegation that inmate Clark overheard Officer
Starkey and the sergeant discussing a potential fight. The
judge dismissed the warden and the security director from
the suit because Schillinger did not allege that they were
personally involved in these events.
Sergeant John Doe was later identified as Sergeant
Richard Matti. Officers Starkey and Kiley and Sergeant Matti
moved for summary judgment, arguing that Schillinger
failed to exhaust his administrative remedies on the failure-
to-protect claim the judge had identified. The judge granted
the motion, explaining that Schillinger’s offender complaint
did not allege that the defendants were aware of Terry’s
threat and thus had reason to believe that Schillinger might
be attacked and failed to take preventive action. Rather, the
grievance questioned only why no staff were present on the
range where the assault took place and why it took so long
for staff to come to Schillinger’s aid after the attack began.
Schillinger appealed, still representing himself. We
struck the original briefs and recruited pro bono counsel to
assist him. 2
II. Discussion
With the benefit of pro bono representation, Schillinger
advances two arguments on appeal. First, he challenges the
judge’s screening order, arguing that the judge should have
permitted him to proceed on two additional factual grounds
for his failure-to-protect claim: that the defendants inade-
2 Attorneys David Feder and Meir Feder of Jones Day accepted the
representation and have ably discharged their duties. We thank them for
their assistance to their client and the court.
6 No. 18-2404
quately responded to the emergency medical alarm and
failed to intervene after arriving at the scene of the attack.
Second, he challenges the judge’s exhaustion ruling.
Both arguments rest on aspects of the PLRA. The Act re-
quires district courts to screen prisoner complaints and
“identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint … fails to state a
claim upon which relief may be granted.” 28 U.S.C.
§ 1915A(b)(1). At screening the judge must apply the stand-
ards for a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, permitting claims to go
forward only to the extent that the prisoner has pleaded facts
to demonstrate that he has a plausible claim for relief.
Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012).
A claim is plausible when the complaint alleges enough
facts to draw the reasonable inference that the defendant is
liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff
must include adequate factual detail to lift his claims from
mere speculative possibility to plausibility. Id. A claim for
relief may not proceed merely because some set of facts can
be imagined that would entitle a plaintiff to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 561–63 (2007). Pro se com-
plaints are construed more forgivingly than a pleading
prepared by a lawyer. Perez v. Fenoglio, 792 F.3d 768, 776 (7th
Cir. 2015). We review the judge’s screening order de novo,
accepting the complaint’s factual allegations as true and
drawing all reasonable inferences in the plaintiff’s favor. Id.
The judge permitted Schillinger to go forward on one
Eighth Amendment claim: a failure-to-protect claim against
Officers Starkey and Kiley and Sergeant Matti based on the
No. 18-2404 7
allegations that they failed to act to protect Schillinger after
they learned of Terry’s threat and the possibility of a rumble.
That ruling was unquestionably sound. A prison official
may be liable for one prisoner’s attack on another prisoner if
two conditions are met. First, there must have been a sub-
stantial risk of serious harm to the prisoner who was at-
tacked. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second,
the prison official must have acted with deliberate indiffer-
ence to the health or safety of the prisoner. Id. The judge
correctly concluded that Schillinger plausibly alleged that
these three officials were deliberately indifferent to a sub-
stantial risk of serious harm because they learned of the
threatening incident with Terry and failed to take steps to
protect him.
Schillinger argues that the judge overlooked additional
factual grounds for a failure-to-protect claim against the
defendants based on the complaint’s allegations about a
slow response to the emergency medical alarm and the
failure by staff to quickly intervene once they arrived at the
scene of the attack. We disagree. The allegations concerning
the alarm and the failure to break up the attack do not
support a plausible failure-to-protect claim against these
defendants.
As to the emergency alarm, the complaint contains a sin-
gle factual allegation: that inmate Clark heard an alarm radio
calling for a medical response on Charlie Unit a few minutes
after overhearing a conversation between Officer Starkey
and a John Doe sergeant about a possible rumble. The
allegations about inadequate intervention after the attack
began are similarly thin: that the complaint says only that
8 No. 18-2404
“staff” did not come for eight to ten minutes, and when they
did arrive, they waited too long to stop the assault.
These allegations do not provide a plausible alternative
factual basis for a different or additional failure-to-protect
claim against Officers Starkey or Kiley or Sergeant Matti.
The complaint says that all three officers were on duty in
Delta Unit, but the alarm Clark allegedly overheard reported
a medical emergency on Charlie Unit. Nothing in the com-
plaint suggests that they had a responsibility to leave their
posts and respond to an emergency in a different unit.
Moreover, no allegations place these officers at the scene of
the attack. Although Schillinger made other specific allega-
tions against these three officers, he did not allege that they
were among the “staff” that responded too slowly once the
attack was underway and stood idly by while the beating
continued. There is nothing in the complaint that would
support that inference.
Schillinger relies on Velez v. Johnson, but the circumstanc-
es in that case were far different. In Velez the plaintiff
claimed that he pushed an emergency call button in his jail
cell when his cellmate threatened him; he further alleged
that the defendant Johnson was the officer in charge of the
control station in his pod and was responsible for monitor-
ing and responding to emergency calls from inmates in their
cells, yet failed to take action to avert the brutal attack that
followed. 395 F.3d 732, 734–36 (7th Cir. 2005). That’s a far cry
from the allegations here, which place Officers Starkey and
Kiley and Sergeant Matti on duty in an entirely different unit
in a large prison and provide no factual basis from which to
infer that they even heard the medical alarm, had a duty to
respond, or were among the “staff” that arrived too slowly
No. 18-2404 9
and did too little to stop the attack. We find no flaw in the
judge’s screening order.
That brings us to the judge’s summary-judgment ruling,
which rests on a different requirement in the PLRA. The Act
provides that a prisoner may not bring a suit in federal court
challenging prison conditions “until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The judge determined that Schillinger had not
exhausted the lone claim that survived screening. We review
exhaustion rulings de novo. Kaba v. Stepp, 458 F.3d 678, 681
(7th Cir. 2006).
The PLRA does not specify what a prisoner must do to
exhaust his administrative remedies. Those requirements are
found in the law establishing the relevant administrative
remedies: state law for state prisons and federal law for
federal prisons. Strong v. David, 297 F.3d 646, 649 (7th Cir.
2002). Because this case concerns conditions in a Wisconsin
prison, we look to the grievance procedures established by
Wisconsin law.
There is no dispute that Schillinger pursued a grievance
through all levels of the inmate-complaint system in a timely
fashion, receiving decisions at every stage. This exhaustion
dispute centers on a provision of the Wisconsin Administra-
tive Code that requires prisoners to “clearly identify the
issue” in their offender complaints. WIS. ADMIN. CODE DOC
§ 310.09 (2002) (amended 2018). The judge concluded that
Schillinger’s grievance did not clearly identify the failure-to-
protect claim at issue in this litigation; instead, it focused
entirely on the absence of correctional officers on the range
where the attack occurred and the slow response once the
attack was underway.
10 No. 18-2404
The regulation specifying that a prisoner must “clearly
identify the issue” in an inmate complaint is not more
specific about what it takes to satisfy this requirement. When
the applicable regulations provide little guidance regarding
the required contents of a prison administrative complaint,
we have held that an inmate’s complaint will suffice for
exhaustion purposes if it provides notice to the prison of
“the nature of the wrong for which redress is sought.”
Strong, 297 F.3d at 650.
This notice principle is grounded in the purposes of ex-
haustion under the PLRA. The exhaustion requirement
protects the prison’s administrative authority by giving it an
opportunity to correct its own mistakes before suit is filed
against it in federal court. Woodford v. Ngo, 548 U.S. 81, 89
(2006). In addition, exhaustion promotes efficiency because a
claim can generally be resolved much more quickly in an
administrative proceeding than in litigation in federal court.
Id. Accordingly, we’ve held that a prisoner satisfies the
exhaustion requirement when he gives a prison “notice of,
and an opportunity to correct, a problem.” Turley v. Rednour,
729 F.3d 645, 650 (7th Cir. 2013).
Schillinger’s offender complaint did not provide ade-
quate notice of the failure-to-protect claim at issue here. The
complaint begins by identifying the date and approximate
time of the attack: “On September 17, 2015, right after court-
yard in the morn[ing,] I was beat up pretty bad.” It then lists
Schillinger’s injuries. The next and final passage identifies
his core complaint against the prison:
I was wondering why there was no correctional
officer on the range at the time of the incident.
And why it took so long for them to respond to
No. 18-2404 11
my aid. I was also told this [on] Friday[,]
September 18, 2015[,] in the morn[ing] at the
hospital. By a correctional officer. He stated to
me[,] it sure took them awhile to respond to
you. If they would of responded right away, I
wouldn’t be in this position I’m in now. They
said it would take awhile for my injuries to heal
up.
That concludes the complaint. Officers Starkey and Kiley
are not mentioned. Nor is Sergeant Matti—or an unidenti-
fied sergeant, for that matter. The attacker is not identified,
and there’s no reference to an earlier confrontation between
Schillinger and the attacker, much less a previous threat. In
short, there are no allegations that any prison guards—even
unnamed guards—had reason to know in advance that an
attack might occur and failed to take appropriate measures
to prevent it.
Instead, Schillinger’s grievance raised two entirely differ-
ent problems: no guards were nearby when the attack
occurred, and the responding guards took too long to come
to his aid. This did not give the prison notice of the claim at
issue here, which concerns events preceding the attack and
conduct by officers who were not mentioned in the griev-
ance. Accordingly, the judge correctly concluded that
Schillinger failed to exhaust the single claim that survived
screening. Summary judgment for the defendants was
proper.
AFFIRMED