Michael Hunter v. Kelly Mueske ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1340
MICHAEL LEE HUNTER,
Plaintiff-Appellant,
v.
KELLY MUESKE and TYSHEME WALKER,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 18-CV-1500 — William E. Duffin, Magistrate Judge.
____________________
ARGUED OCTOBER 31, 2022 — DECIDED JULY 17, 2023
____________________
Before EASTERBROOK, JACKSON-AKIWUMI, and LEE, Circuit
Judges.
LEE, Circuit Judge. Michael Hunter was an inmate at
Redgranite Correctional Institution, a Wisconsin state prison.
While there, he suffered a vicious beating at the hands of his
cellmate, Donald Patterson, shortly after Patterson was
reassigned to a new cell. Hunter brought this action under
42 U.S.C. § 1983 against Redgranite officials Kelly Mueske
and Tysheme Walker, alleging that they were deliberately
2 No. 22-1340
indifferent to his reports that Patterson had threatened him in
the months leading up to the attack. The district court granted
summary judgment for both defendants. Because Hunter has
offered no facts from which a reasonable jury could find that
Walker acted with deliberate indifference or that Mueske’s
conduct caused his injury, we affirm.
I. Background
A. Hunter and Patterson’s Relationship
Hunter was housed in a general-population wing of “Unit
H” at Redgranite. Patterson became Hunter’s cellmate on
March 8, 2017, and remained so through December 6, 2017.
Patterson had a reputation at Redgranite. Correctional
officer Robert Wilcox described him as a “lifer inmate” and a
“violent individual.” Wilcox testified that his and other
Redgranite staff’s interactions with Patterson were “fairly
negative.” Indeed, Wilcox believed that Patterson should not
have been housed in general population at all.
So perhaps it is unsurprising that Hunter and Patterson
had a rocky relationship as cellmates. Their disagreements
started out small. For instance, Patterson got mad when
Hunter had gas or breathed too loudly. But things soon
escalated. On multiple occasions, Patterson told Hunter that
he would beat him with a cribbage board while he slept. He
also threatened to “whoop” Hunter’s “ass” and repeatedly
warned Hunter that Hunter needed to find a new cellmate.
According to Hunter, it was a “good week” if Patterson was
only angry at him for “part of each day.”
The relationship was not all bad, though. Hunter and
Patterson sometimes played games, talked about sports, and
even hugged. But ultimately, Hunter denies that he and
No. 22-1340 3
Patterson ever truly got along. He claims that he constantly
feared for his life, and that he simply tried to keep Patterson
happy to avoid any violent confrontations.
B. Hunter’s Complaints
Hunter tried to bring Patterson’s threats to the attention of
Mueske, who was Redgranite’s unit supervisor for Unit H. In
that capacity, Mueske had final say over all housing
assignments in the unit. Hunter sent Mueske several informal
complaint forms describing Patterson’s threats and
requesting a cell reassignment. It is undisputed that Mueske
received at least one of these forms.
According to Hunter, Mueske did not take any action in
response to his concerns. Eventually, he confronted Mueske
in person about his outstanding complaints. Per Hunter,
Mueske dismissed him and stated that she discards any
complaints she cannot read.
Frustrated by the lack of response from Mueske, Hunter
turned to Walker for help. Walker was a correctional sergeant
in Unit H; he did not have any authority over housing
assignments. Hunter told Walker about Patterson’s threats
and said that he could not be cellmates with Patterson any
longer. Walker recommended that Hunter fill out an Inmate
Complaint form. An Inmate Complaint is a formal complaint
submitted by an inmate after a failed attempt to resolve an
issue with the appropriate staff member.
Hunter filled out an Inmate Complaint form and gave it to
Walker, who recommended that Hunter include Patterson’s
threat to hit him with a cribbage board. Then, Walker told
Hunter to place the form in a box designated for Inmate
Complaints. The Inmate Complaint form filled out by Hunter
4 No. 22-1340
is dated August 9, 2017, and it specifically references
Patterson’s cribbage-board threat and Walker’s assistance.
Walker typically notifies his superiors and drafts an incident
report when he learns of threats between inmates, but he did
not do so in this case.
C. The Fight and Aftermath
Wilcox decided to move Patterson out of Unit H on
December 6, 2017. It was not due to Hunter’s complaints,
however. Rather, a new inmate was scheduled to move into
the unit, and an existing inmate had to be moved out. Wilcox
selected Patterson due to his negative interactions with
Redgranite staff.
On the day of Patterson’s move, Hunter decided to bid
him farewell. Hunter testified that he wanted Patterson to
know that there was “no bad blood” between them. He added
that, despite their up-and-down relationship, he and
Patterson “had a connection,” and that he wanted to tell
Patterson that he loved him. And so, Hunter, who was in a
common area at the time, approached Patterson, who was in
their cell.
What happened next is disputed. Hunter claims that
Patterson flew into a rage, calling Hunter a “rat” and accusing
him of causing Patterson’s reassignment. Patterson denies
this. He testified that Hunter called him various derogatory
terms, including the N-word. Whatever was said, the verbal
altercation turned physical. Patterson violently battered
Hunter and stomped on his head. The fight left Hunter with
permanent injuries and triggered his post-traumatic stress
disorder from his time in the military. The altercation was
captured on video.
No. 22-1340 5
D. Proceedings Below
The district court granted summary judgment against
Hunter and in favor of Mueske and Walker with respect to
Hunter’s § 1983 claims. Hunter v. Mueske, No. 18-CV-1500,
2022 WL 227534 (E.D. Wis. Jan. 26, 2022). As to Mueske, the
district court recognized that factual questions existed as to
whether Mueske had exhibited deliberate indifference to the
risk Patterson posed to Hunter, but it determined that Hunter
had failed to raise any facts to establish causation. The court
reasoned that the fight occurred several months after
Hunter’s last communication with Mueske and only
happened because Hunter took it upon himself to approach
Patterson. Id. at *5. And as to Walker, the court held that no
reasonable jury could find that he was deliberately indifferent
to Hunter’s plight, given his assistance to Hunter in the
preparation of the Inmate Complaint form. Id.II. Legal Standard and Standard of Review
We review the district court’s grant of summary judgment
de novo. REXA, Inc. v. Chester, 42 F.4th 652, 661–62 (7th Cir.
2022). A court “shall grant [a motion for] summary judgment
if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Material facts” are facts
that “might affect the outcome of the suit,” and a dispute as
to those facts is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding if a genuine dispute of material fact exists, we
“view the evidence and draw all [reasonable] inferences” in
favor of the non-moving party. Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).
6 No. 22-1340
III. Analysis
Section 1983 confers a private right of action against
government officials who, acting under color of state law,
deprive a plaintiff of “any rights, privileges, or immunities
secured by the Constitution and laws” of the United States.
42 U.S.C. § 1983; Bayview-Lofberg’s, Inc. v. City of Milwaukee,
905 F.2d 142, 144 (7th Cir. 1990). Hunter claims that Mueske
and Walker deprived him of his rights under the Eighth
Amendment, which prohibits the imposition of “cruel and
unusual punishments.” U.S. Const. amend. VIII.
It is well settled that the Eighth Amendment requires
correctional officials to protect inmates from certain dangers
posed by other inmates. Farmer v. Brennan, 511 U.S. 825, 833–
34 (1994) (“Being violently assaulted in prison is simply not
‘part of the penalty that criminal offenders pay for their
offenses against society.’”) (quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981)). That does not mean, however, that a
constitutional violation occurs every time an inmate gets into
a fight. Rather, only “deliberate indifference” to an inmate’s
wellbeing is actionable: “[a] prison official is liable for failing
to protect an inmate from another prisoner only if the official
‘knows of and disregards an excessive risk to inmate health
or safety.’” Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir.
2015) (quoting Farmer, 511 U.S. at 837).
Thus, a deliberate-indifference claim under the Eighth
Amendment requires the following three elements: (1) there
must be a risk of harm to the plaintiff that is so objectively
serious as to be “excessive” (and that risk must in fact
materialize); (2) the defendant must “know” of the risk (put
differently, he must possess subjective awareness that the risk
exists); and (3) the defendant’s response to the risk must be so
No. 22-1340 7
inadequate as to constitute “disregard” of (or deliberate
indifference toward) the risk. See id. In addition, a fourth
element exists: (4) the plaintiff must prove that the
defendant’s deliberate indifference actually caused his injury.
Roe v. Elyea, 631 F.3d 843, 864 (7th Cir. 2011).
We assume without deciding that the first two elements
are satisfied here—namely, that Patterson’s threats of violence
created an objectively serious risk of grave harm to Hunter
(which eventually materialized), and that Hunter’s written
and verbal complaints to Mueske and Walker placed each on
subjective notice of that risk. But Hunter’s claims falter on the
third and fourth elements: he cannot show that Walker was
deliberately indifferent to any risk of harm, and he cannot
show that any deliberate indifference on Mueske’s part
caused his injury. We address each in turn.
A. Deliberate Indifference
In order to survive summary judgment, Hunter must
produce evidence that would allow a reasonable jury to find
that Mueske and Walker were deliberately indifferent to the
risk Patterson posed. Hunter bears a hefty burden here.
Deliberate indifference is more than mere negligence or
carelessness: it is “something approaching a total unconcern”
for inmate safety. Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir.
2012) (quoting Collins v. Seeman, 462 F.3d 757, 762 (7th Cir.
2006)); see also Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022)
(stating that deliberate-indifference claims will fail absent
evidence of “callous disregard” for inmate wellbeing). Thus,
Hunter cannot succeed merely by showing that Mueske and
Walker failed to “choose the best course of action” in
addressing Patterson’s threats. Peate v. McCann, 294 F.3d 879,
882 (7th Cir. 2002). So long as they took measures reasonably
8 No. 22-1340
calculated to address the risk Hunter faced, they cannot be
held liable under § 1983, even though they ultimately failed
to prevent his injury. Dale v. Poston, 548 F.3d 563, 569 (7th Cir.
2008).
Turning first to Mueske, assuming she was on notice that
Patterson posed a serious risk to Hunter (and there are facts
in the record to support such an inference), a rational jury
certainly could find that she was deliberately indifferent to
that risk. According to Hunter, Mueske did nothing at all
about his housing situation, despite his numerous written
complaints. Obviously, doing absolutely nothing about a
known serious risk constitutes deliberate indifference. See
Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940 (7th Cir. 2015).
The story is different for Walker. The undisputed facts
demonstrate that he was not deliberately indifferent to
Patterson’s threats. Rather, he proactively helped Hunter
address those threats. According to Hunter’s own version of
events, after Mueske ignored his concerns about Patterson, he
shared those concerns with Walker. In response, Walker told
him to file an Inmate Complaint. Walker also read over
Hunter’s Inmate Complaint form and recommended that he
include Patterson’s threat to beat him with a cribbage board.
Then Walker told Hunter where to file the form to ensure it
reached the proper officials. Walker’s demonstrated concern
for Hunter’s wellbeing is a far cry from the sort of callous
disregard for inmate safety necessary to support a deliberate-
indifference claim. Rosario, 670 F.3d at 822 (affirming
summary judgment for officers on deliberate-indifference
claim where record showed they acted with “compassion”);
Lee v. Young, 533 F.3d 505, 511 (7th Cir. 2008) (holding prison
officials could not be liable for deliberate indifference where
No. 22-1340 9
the “record [was] replete with instances of concern, not
indifference”).
In fact, Walker did all that reasonably could have been
expected of him, given that Hunter’s housing complaints
were outside the purview of his primary job duties. As a
correctional sergeant, Walker certainly was charged with
keeping inmates safe, but he had no authority over cell
assignments and no power to reassign inmates. Simply put,
he cannot be held liable for failing to do something he had no
authority to do. Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir.
2009) (“Public officials do not have a free-floating obligation
to put things to rights … Bureaucracies divide tasks; no
prisoner is entitled to insist that one employee do another’s
job.”); Mitchell v. Kallas, 895 F.3d 492, 498–99 (7th Cir. 2018)
(holding prison psychologist was not liable for delay in
processing, and denial of, plaintiff’s request for hormone-
therapy treatment, where there was “no evidence” the
psychologist could have “sped up” the process or
“influenced” the final decision). And there is no evidence that
Walker could have taken any additional action to influence or
expedite resolution of Hunter’s concerns.
Fighting this conclusion, Hunter contends that Walker
was deliberately indifferent by failing to create an incident
report notifying his supervisors of Patterson’s threats. But
Walker’s mere failure to follow (in Hunter’s view) the “best
course of action” does not mean that he acted with deliberate
indifference. Peate, 294 F.3d at 882. Hunter does not have a
constitutional right to “the most intelligent, progressive,
humane, or efficacious prison administration.” Anderson v.
Romero, 72 F.3d 518, 524 (7th Cir. 1995). Since Walker
responded reasonably to the risk of which he was aware, he
10 No. 22-1340
cannot be held liable for Hunter’s injuries. Under our cases,
the possibility that he could have done more does not evince
deliberate indifference.1 See Lee, 533 F.3d at 510–11 (holding
prison officials were not deliberately indifferent to asthmatic
inmate’s exposure to secondhand smoke, even though they
did not reassign his smoking cellmate or prevent the prison
commissary from selling cigarettes to inmates in nonsmoking
cells).
Hunter also argues that Walker acted unreasonably
because, despite knowing that Hunter’s prior complaints to
Mueske had been ignored, he advised Hunter to file another
complaint. But the mere fact that Mueske did not take action
on Hunter’s informal complaints did not necessarily mean
that his Inmate Complaint also would be ignored. Indeed,
Inmate Complaints are meant to be used when informal
complaints have failed, and they are handled by personnel
other than Mueske. Far from being unreasonable, Walker’s
recommendation that Hunter fill out an Inmate Complaint
form was an appropriate response to Hunter’s specific
predicament. There is no evidence that Walker was aware that
Hunter’s Inmate Complaint would be ignored or not taken
seriously; he was entitled to rely on the professional judgment
and competence of the officials charged with processing those
complaints. And there is no evidence that, at the time Hunter
1 Hunter also argues that Walker’s job duties required him to file an
incident report. Even if this is true, Walker’s failure to follow Redgranite
prison procedures is not a constitutional violation in and of itself. Est. of
Novack ex rel. Turbin v. Cnty. of Wood, 226 F.3d 525, 532 n.3 (7th Cir. 2000);
Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (“[Section] 1983 protects
plaintiffs from constitutional violations, not violations of state laws or …
departmental regulations[.]”).
No. 22-1340 11
informed Walker of Patterson’s threats, Patterson was
imminently about to act on those threats. Indeed, Patterson
did not attack Hunter until December 6, 2017, almost four
months after Hunter submitted his Inmate Complaint form.
Thus, Walker responded reasonably to the risk of which he
was aware. See Borello v. Allison, 446 F.3d 742, 749–50 (7th Cir.
2006) (holding prison officials were not liable for attack on
plaintiff by cellmate, where officials reasonably relied on
psychiatrist’s determination that cellmate could safely return
to cell, plaintiff did not seem to be in imminent danger, and
attack did not occur until a week after plaintiff’s complaints
about cellmate). And the district court properly entered
summary judgment in his favor.
B. Causation
Returning to Mueske, even if a reasonable jury could find
the other elements of deliberate indifference, Hunter’s claim
against her fails for lack of causation. In assessing causation
in § 1983 cases, we look to general principles of causation
from tort law. Whitlock v. Brueggemann, 682 F.3d 567, 582–83
(7th Cir. 2012). At summary judgment, Hunter must produce
evidence sufficient to persuade a reasonable jury that two
types of causation exist: causation-in-fact and proximate
causation (also known as legal causation). Id. We focus on the
latter here. Under the doctrine of proximate causation, a
defendant is liable only for those harms she foreseeably risked
by her wrongful actions. Dan B. Dobbs et al., The Law of Torts
§ 198 (2d ed. 2023) (“Dobbs”); United States v. Luce, 873 F.3d
999, 1012 (7th Cir. 2017) (stating that proximate causation
exists when “the [plaintiff’s] injury is of a type that a
reasonable person would see as a likely result of his or her
conduct”) (cleaned up). Put differently, a defendant will be
12 No. 22-1340
held to answer only for those harms the risk of which made
her conduct wrongful in the first place. Restatement (Third)
of Torts: Liability for Physical and Emotional Harm § 29 (Am.
L. Inst. 2010). So when a plaintiff’s injury could not reasonably
have been foreseen by the defendant (i.e., when it was beyond
the scope of the risk generated by the defendant’s conduct),
there is no proximate causation and, thus, no liability. A
corollary to these principles is the idea of “superseding
cause”: when the plaintiff’s injury is caused not by a risk
created by the defendant but by an unforeseeable intervening
act, that act will operate to sever the defendant’s liability.
Dobbs § 204; Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837–
38 (1996); see Perron ex rel. Jackson v. J.P. Morgan Chase Bank,
N.A., 845 F.3d 852, 858 (7th Cir. 2017) (“Where the harm
which in fact results is caused by the intervention of factors or
forces which form no part of the recognizable risk involved in
the actor’s conduct, the actor is ordinarily not liable.”)
(quoting Restatement (Second) of Torts § 281 cmt. f (Am. L.
Inst. 1965)).
We note that, in § 1983 cases, causation is typically a
question best left for the jury. Gayton v. McCoy, 593 F.3d 610,
624 (7th Cir. 2010). But there are cases where proximate
causation may be decided as a matter of law. And this is such
a case, for no reasonable jury could conclude that Hunter’s
injury was within the foreseeable risk generated by Mueske’s
conduct.
Hunter claims that Mueske ignored his repeated requests
that she exercise her authority over Unit H housing
assignments to separate him and Patterson. To determine
whether proximate causation might lie, we must ask what
sorts of risks a reasonable person would foresee as a likely
No. 22-1340 13
result of Mueske’s failure to act. Luce, 873 F.3d at 1012. By
leaving Hunter in a cell with Patterson, Mueske created the
foreseeable risk that Hunter would be left defenseless and
Patterson would attack him while the two were housed in
close quarters together. But that is not what happened here.
The fight that caused Hunter’s injuries occurred after
Patterson had been reassigned to a new cell and was being
moved (in other words, after Hunter had received the very
relief he had been seeking from Mueske). And the fight
happened only because Hunter approached Patterson of his
own volition, near Hunter’s open and unlocked cell, and
initiated an interaction.2 This harm was not within the
foreseeable risk generated by Mueske’s inaction. Mueske’s
failure to separate Hunter and Patterson as cellmates did not
make it any more likely that Hunter would seek out
interactions with Patterson as Patterson was moving out of
their cell. See Dobbs § 198 (indicating that a defendant is liable
2 Hunter and Patterson’s interaction, including the ensuing physical
altercation, was captured on video. The district court described the events
as such: “The video is partially obscured, and there is no audio, so the
court cannot know what was said. But whatever Hunter said provoked
Patterson, resulting in the beating.” Hunter, 2022 WL 227534, at *5. Hunter
devotes significant energy to attacking the district court’s use of the word
“provoked,” arguing that the court improperly weighed the evidence at
summary judgment and blamed him for the fight. He argues that the
district court’s conclusion that he provoked the fight is at odds with
Patterson’s 2018 battery conviction arising out of the fight. We agree that
the district court probably failed to view the video in the light most
favorable to Hunter, as required at summary judgment. But ultimately,
this issue is not material to our decision. While it is unclear who provoked
the fight, the key and undisputed fact is that it was Hunter who
approached Patterson, thereby initiating the interaction that led to the
fight, after Patterson had been ordered to move out.
14 No. 22-1340
only for risks “create[d] or increase[d]” by her conduct); see
also Carris v. Marriott Int’l, Inc., 466 F.3d 558, 559–60 (7th Cir.
2006).
To put it differently, Hunter’s deliberate choice to
approach Patterson was an unforeseeable superseding cause
of his injury that severs Mueske’s liability. Mueske could not
reasonably have predicted that Hunter would voluntarily
approach Patterson while Patterson was being moved,
especially since Hunter repeatedly made clear to Mueske that
he feared Patterson and did not want to be around him.
Hunter’s injury was caused not by Mueske’s conduct but by
his own decision to place himself in harm’s way. See Dixon v.
Burke Cnty., 303 F.3d 1271, 1275 (11th Cir. 2002) (stating that
proximate causation “does not exist when the continuum
between Defendant’s action and the ultimate harm is
occupied by the conduct of deliberative and autonomous
decision-makers”). We find persuasive the Eleventh Circuit’s
decision in the similar case of Buckman v. Halsey, No. 20-13596,
2021 WL 4127067 (11th Cir. Sept. 10, 2021) (per curiam).
There, the plaintiff prisoner had been threatened by another
inmate, and the defendant guard was aware of those threats.
Id. at *1. At some point, the plaintiff initiated an altercation
with the other inmate and sued to hold the guard liable for
his injury. Id. The court rejected the claim, concluding that the
guard’s failure to protect the plaintiff from the other inmate
was not the proximate cause of the plaintiff’s injury, because
the plaintiff himself had started the fight, even though he
safely could have avoided the other inmate altogether. Id. at
*3. Here, too, Hunter approached Patterson and initiated an
interaction with him (even though it is not clear who started
the physical fight). Hunter does not argue (nor does the
record show) that he could not safely have avoided his cell
No. 22-1340 15
while Patterson was being moved out. See also Hailey v. Kaiser,
201 F.3d 447 (table), No. 99-7046, 1999 WL 1009614, at *2 (10th
Cir. Nov. 8, 1999) (affirming summary judgment where
plaintiff inmate initiated an altercation with fellow inmate,
even though he “could have avoided” him). On these facts,
Hunter’s choice to approach Patterson “form[ed] no part of
the recognizable risk involved in [Mueske’s] conduct.” Perron,
845 F.3d at 858 (quoting Restatement (Second) of Torts § 281
cmt. f).
To be clear, we do not suggest that Hunter is to blame for
his injuries, far from it. We hold only that his decision to
approach Patterson, and his resulting injury, were not within
the scope of the foreseeable risk generated by Mueske’s
conduct. Therefore, Hunter has not created a genuine
question of material fact as to causation, and the district court
properly entered summary judgment for Mueske.
IV. Conclusion
For the reasons stated above, the judgment of the district
court is AFFIRMED.