Randall Blue v. Michael Baenen , 681 F. App'x 524 ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 17, 2017 *
Decided March 22, 2017
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 16-2421
RANDALL BLUE, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 13-CV-01439
MICHAEL BAENEN, et al.,
Defendants-Appellees. William C. Griesbach,
Chief Judge.
ORDER
Randall Blue, a Wisconsin prisoner, appeals the grant of summary judgment
against him in this suit brought under 42 U.S.C. § 1983. He asserts that prison staff
violated his Eighth and Fourteenth Amendment rights by deliberately ignoring a risk
that he faced in climbing to his top bunk bed, causing him to fall and injure himself.
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. CIV. P. 34(a)(2)(C).
No. 16-2421 Page 2
Because Blue lacks evidence suggesting that the defendants knew about and ignored a
substantial risk of serious harm, we affirm.
In reviewing the grant of summary judgment against Blue, we recite the facts in
the light most favorable to him. See Tradesman Int’l, Inc. v. Black, 724 F.3d 1004, 1009
(7th Cir. 2013). Green Bay Correctional Institute uses bunk beds that do not include a
ladder. The parties dispute whether inmates typically use the lower bed to climb to and
from the upper bunk. Prison staff attest that inmates get up and down from the top
bunk without difficulty by stepping on the lower-bunk frame. But one prisoner attests
that “no one dare[s]” climb on another inmate’s bed frame.
Blue uses a chair to reach his top bunk. The prison provides a chair in double-
occupancy cells so that the inmate assigned to the top bunk has a place to sit, but the
chair is not intended for climbing. Blue says that he has told staff that for him “there’s
no other way to climb down.” In July 2013, as he was using his chair to reach his bed, it
slipped from under him (as it had before). His cellmate caught him, saving him from
potential injury.
This incident led Blue to submit a grievance to Cathy Francois, a complaint
examiner, requesting a new chair. She told him to “inform Capt. Pusich” that he wanted
“a sturdy chair [he could] use to get on and off the top bunk, so that [he would] not slip
and hurt [him]self.” Francois also advised Blue to request a pass from health services
for a lower bunk if he felt that he could not safely climb. Blue did not do this. Finally
Francois said that if Pusich was unable to “address the issue to [Blue’s] satisfaction,”
Blue could resubmit his grievance, with Pusich’s signature. When Blue resubmitted it
the next week, it was unsigned by Pusich, and Francois recommended that the warden
dismiss it. The warden, Michael Baenen, did so.
Eventually Blue asked Pusich for a sturdy chair. Blue explained that he had
“filed a complaint about … slipping on the chair climbing down from [his] top bunk,”
but it had been rejected because he had not contacted Pusich. He asserted he had “no
safe way of climbing” to and from the top bunk. Pusich responded that “chairs are
limited” and did not give Blue one, but suggested that he ask the unit staff for help.
Again Blue did not ask for a lower-bunk pass.
A little over a week later, Blue fell off the chair when trying to get down from the
top bunk. (Blue asserts in a brief that one of the legs of the plastic chair broke under his
weight, though he never attested to this fact.) After a hospital visit, Blue was diagnosed
with neck and lower-back strain. He then requested, and two weeks later received, a
No. 16-2421 Page 3
lower-bunk restriction. Over the next five months, he saw health-services staff for pain
from his fall at least 32 times and was also sent to off-site doctors multiple times.
Blue then brought this deliberate-indifference suit against Warden Baenen,
Captain Pusich, and the complaint examiner Francois for not providing a sturdy chair
or ladder. (He also sued a doctor for faulty medical treatment, but he abandons that
claim on appeal, replacing it with a claim that he did not raise below, so we do not
discuss it.) Baenen and Pusich attested that they did not know of any physical condition
that prevented Blue from reaching the top bunk by using the lower-bunk frame, as they
have seen many inmates do. Blue countered with two arguments. First, inmates
assigned to top bunks fear using the bottom-bed frame because that could generate
fights with cellmates. Second, his request for a lower-bunk restriction three years earlier
based on his back pain had been denied.
The district court granted summary judgment to the defendants. It noted that
district courts around the country have held that the lack of a ladder to reach a top bunk
does not pose a serious risk of harm. And even if it did, the court continued, Blue did
not show that the defendants knew about that risk and disregarded it.
To succeed on a claim of deliberate indifference, Blue must submit evidence that
he was “incarcerated under conditions posing a substantial risk of serious harm” and
that the defendants knew of but ignored the risk. Farmer v. Brennan, 511 U.S. 825, 834
(1994); see also Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016). We will assume
that an inmate assigned to a top bunk who cannot safely access the bed may face a
sufficiently serious risk of harm. See Withers v. Wexford Health Sources, Inc., 710 F.3d 688,
689–90 (7th Cir. 2013). We may also assume that Blue notified the defendants that he
used only a chair to get to his bed, that the chair was unsteady, that he had fallen when
climbing on it, and that he could injure himself if he used it again. See Gevas v.
McLaughlin, 798 F.3d 475, 480–81 (7th Cir. 2015); Reed v. McBride, 178 F.3d 849, 854
(7th Cir. 1999).
But to overcome summary judgment, Blue must point to evidence that the
defendants knew (or recklessly avoided knowing) that he could not use the lower-bunk
frame to get into his bunk safely. See Farmer, 511 U.S. at 834. He has not. Although he
says he asserted to prison staff that he had “no other way” to reach his top bunk besides
a chair, “[t]he Constitution does not oblige guards to believe whatever inmates say.”
Riccardo v. Rausch, 375 F.3d 521, 527 (7th Cir. 2004). He must identify some other
information available to staff that would enable them to “separate fact from fiction.” Id.
He responds that staff must have known that he could not safely use the lower-bunk
No. 16-2421 Page 4
frame because prison culture prohibits stepping on a cellmate’s bed. But neither he nor
any other inmate swears to the supposed cultural prohibition on bed-frame climbing,
and his unsworn argument is not evidence. See Fed. R. Civ. P. 56(c)(1)(A), (e); cf. Olson v.
Morgan, 750 F.3d 708, 714 (7th Cir. 2014). Although one inmate asserted that “no one
dare[s]” climb on a bed frame, the inmate does not say why or assert that staff members
know this.
In any case, even if the defendants knew that Blue could not safely step on his
cellmate’s bed frame, they were not deliberately indifferent to his situation. Francois
told Blue about a safe, easy alternative to both the chair and the bed frame: He could
request a lower-bunk restriction. Yet despite the simplicity of this solution, Blue did not
ask for one until after his injury. Blue replies that it would have been futile to ask for
one because three years earlier he had been denied one for his back pain. But the record
reveals too little about that earlier request to permit a reasonable inference that all
requests, no matter how well-founded, are futile. Anyway, “[n]o one can know whether
administrative requests will be futile; the only way to find out is to try.” Perez v. Wis.
Dep’t of Corr., 182 F.3d 532, 536 (7th Cir. 1999). And Blue’s success in receiving a
lower-bunk restriction after he did ask confirms that requests are not futile. Thus even
though the defendants did not give Blue a new chair or ladder to climb to and from his
upper bunk, they were not deliberately indifferent to his needs.
AFFIRMED.