Scarver, Christopher v. Litscher, Jon

In the

United States Court of Appeals

For the Seventh Circuit

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No. 05-2999

CHRISTOPHER J. SCARVER,

Plaintiff-Appellant,

v.

JON LITSCHER, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 01-C-0497-C—Barbara B. Crabb, Chief Judge.

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ARGUED DECEMBER 8, 2005—DECIDED JANUARY 18, 2006

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Before BAUER, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge. The plaintiff in this prisoner’s civil

rights suit, Christopher Scarver, contends that officials of

the Wisconsin Secure Program Facility—nicknamed

“Supermax”—violated his constitutional right not to be

subjected to cruel and unusual punishment. (“Supermax”

actually is a generic term for “facilities or units designated

for inmates who have been disruptive or violent while

incarcerated and whose behavior can be controlled only by

separation, restricted movement, and limited direct access

to staff and other inmates, thereby excluding routine

disciplinary segregation, protective custody, or other

2 No. 05-2999

routine purposes.” Leena Kurki & Norval Morris, “The

Purposes, Practices, and Problems of Supermax Prisons,” 28

Crime & Justice 385, 388 (2001).) The district judge, after

dismissing several of the defendants, held that a jury could

reasonably find that the remaining ones had violated

Scarver’s constitutional right by subjecting him to condi-

tions of confinement that had significantly aggravated his

mental illness. But she granted summary judgment for these

defendants anyway on the ground of qualified immunity:

settled law did not, she ruled, establish the unlawfulness of

their behavior. We address the merits, and will not have to

consider immunity.

Scarver is schizophrenic and delusional, and, unlike most

schizophrenics, extremely dangerous. He has murdered

three people, two of them in prison in 1994. One was the

notorious Jeffrey Dahmer—the cannibal murderer of 17

young men. Scarver, who hears voices constantly, claimed

that God had ordered him to commit the murders. At the

time, he was in Wisconsin’s Columbia Correctional Institu-

tion, where he twice attempted suicide, once by setting fire

to himself. The year after the two murders, he was trans-

ferred (after a brief sojourn in the U.S. Medical Center for

Federal Prisoners in Springfield, Missouri, for a psychiatric

evaluation) to the federal prison at Florence, Colorado, the

most secure prison in the federal system. The Wisconsin

prison authorities didn’t think they had a secure enough

prison to protect inmates and staff from him.

Scarver spent five years in the federal prison at Florence,

and was surprisingly well behaved. He was given audio-

tapes to help quiet the voices in his head, worked, and was

permitted daily contact with other inmates in the prison’s

recreation yard, all without incident. At the end of this for

him happy interlude he was returned to Wisconsin at the

request of one of the defendant officials and interned in the

No. 05-2999 3

then-new Supermax facility in Boscobel, Wisconsin. The

defendants believed that this facility was secure enough to

hold him. But after three years there, and after the district

court had determined in a preliminary-injunction hearing

that “conditions at Supermax are so severe and restrictive

that they exacerbate the symptoms that mentally ill inmates

exhibit” and that “many of the severe conditions serve no

legitimate penological interest; they can only be considered

punishment for punishment’s sake,” Jones ‘El v. Berge, 164 F.

Supp. 2d 1096, 1116-17 (W.D. Wis. 2001) (see 374 F.3d

541 (7th Cir. 2004), for a subsequent stage of the case),

Scarver was sent back to Colorado, though this time to a

state prison, where he is being allowed to mingle with other

inmates just as he was at the federal prison in Florence. The

staff at the state prison does not regard him as a manage-

ment problem. However, he had been there for only a brief

time before the record of this case closed. His complaint is

about his treatment at Supermax.

The facility has several degrees of restrictiveness, called

“levels.” Inmates spend their first 30 days on Level One,

where they are locked in windowless single-person cells for

all but four hours of the week; the four hours are for

recreation in a small windowless room not much larger than

the cells. The cells are illuminated 24 hours a day so that the

guards can watch the inmates, although they glance in only

intermittently. The cells are not air-conditioned, and so,

being windowless, they become extremely hot during the

summer—the heat index sometimes rises above 100 degrees,

and often above 90. The inmates are not allowed to have

mechanical or electronic possessions, such as a television

set, a clock, or even a watch—just one religious text, one box

of legal documents, and 25 personal letters.

The inmate who behaves himself during his initial 30-day

stay at Level One is transferred to Level Two, where he has

slightly better conditions and more privileges; and from

4 No. 05-2999

there he can move by successive promotions based on good

behavior to Level Five and then out of Supermax altogether,

to a less restrictive prison, though given Scarver’s history it

is doubtful whether he could have progressed that far no

matter how well he had behaved. And in any event men-

tally ill prisoners have great difficulty behaving and

therefore getting promoted, or if promoted (rarely beyond

Level Two) staying at their new level, since misbehavior

leads to demotion; so they end up spending most of their

time at Level One.

The heat of the cells during the summer interacted with

Scarver’s antipsychotic drugs to cause him extreme discom-

fort; antipsychotic medication puts a person at risk of heat

stroke, dangerously low blood pressure, and a rare and

often fatal heat-related disease called neuroleptic malignant

syndrome (NMS). The constant illumination of the cells

disturbs psychotics. And without audiotapes or a radio or

any other source of sound Scarver could not still the voices

in his head. He attempted suicide twice, once by taking an

overdose of his antipsychotic pills and the other time by

swallowing a large number of Tylenol tablets. On several

occasions he banged his head against the cell wall for

protracted periods, telling a prison psychologist that he

wanted to break his head open so that the voices could

escape. He also cut his head with a razor in an effort to cut

out whoever or whatever was talking and moving around

inside his head. On another occasion he cut his wrists. His

symptoms would worsen when he stopped taking his

antipsychotic medication, which he would do when the heat

of his cell interacted with the medication to cause him

serious distress.

It is a fair inference that conditions at Supermax aggra-

vated the symptoms of Scarver’s mental illness and by

doing so inflicted severe physical and especially mental

No. 05-2999 5

suffering. He was closely watched and so the defendants

were well aware of his problems. Their reactions were at

times bizarre, as when they denied him a promotion to a

higher level because “the incident of you banging your head

on the wall and other bizarre behavior is not appropriate.

We highly recommend that you cooperate w/ clinical

services so that advancement can be considered in the

future.” He was banging his head because he is crazy, not

because he was unwilling to cooperate.

There is no evidence, however, that defendants knew

when they brought Scarver back from Florence because they

now had a secure enough facility to house him safely that he

would be at risk of severe distress. Probably they should

have known, but that would make them guilty merely of

negligence and not of deliberate indifference (the mental

state required to establish an Eighth Amendment violation),

which would require proof that they were conscious of the

risk. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994); Case v.

Ahitow, 301 F.3d 605 (7th Cir. 2002). Of course they soon

realized that Scarver was in serious distress because of his

mental illness. But there is no indication that they attributed

this to the heat of the cell, the constant illumination of the

cell, or the denial of audiotapes or similar equipment—no

evidence in short that they realized the harm that the

conditions of his confinement were inflicting on him. They

were not indifferent to his welfare. They gave him constant

psychiatric attention, plied him with antipsychotic medica-

tion, and through close surveillance thwarted his two

suicide attempts. They did not know what more to do.

There is no indication that they had detailed knowledge of

the program at Florence for homicidal maniacs (nor has

Scarver’s lawyer favored us with a description of it) and

they state without contradiction that Florence had not

forwarded any of its records of Scarver’s conduct there to

6 No. 05-2999

the Wisconsin authorities, who may not have known that he

had behaved better at Florence than he was behaving at

Supermax. The warden of Supermax had, it is true, inter-

viewed Scarver at Florence and had learned a little about

him from the warden there; but while the warden did not

mention any misconduct by Scarver he did comment,

enigmatically, that “Mr. Scarver has, has a dark side.”

The Supermax officials might have been expected eventu-

ally, at some point during Scarver’s three years there, to

realize that the heat, the constant illumination, and the lack

of sound were adverse conditions that the medication

couldn’t completely offset (especially given the interaction

of the medication with the heat) and that created a substan-

tial risk of causing Scarver serious physical and mental

suffering. There is an extensive literature on the effect of

such conditions, particularly of isolation, on mentally

disturbed prisoners. E.g., Jennifer R. Wynn & Alisa

Szatrowski, “The Modern American Penal System: Hidden

Prisons: Twenty-Three-Hour Lockdown Units in New York

State Correctional Facilities,” 24 Pace L. Rev. 497, 512-14

(2004); Craig Haney, “Mental Health Issues in Long-Term

Solitary and ‘Supermax’ Confinement,” 49 Crime & Delin-

quency 124 (2003); Stuart Grassian, “Psychopathological

Effects of Solitary Confinement,” 140 Am. J. Psychiatry 1450

(1983), and references in Madrid v. Gomez, 889 F. Supp. 1146,

1231 (N.D. Cal. 1995). Some of the literature postdates

Scarver’s detention in the Supermax and thus is irrelevant

to what the defendants knew when he was there, but much

of it is earlier. Although we know from the Jones ‘El opinion

that the defendants had a copy of Grassian’s article,

Scarver’s lawyer has not contested the defendants’ denial

that they knew that the conditions of confinement at the

Supermax prison would aggravate Scarver’s mental disease

and has not argued that the literature was so widely

No. 05-2999 7

disseminated in correctional circles that it is a fair inference

that despite their denials they did know that.

What is more, the treatment of a mentally ill prisoner who

happens also to have murdered two other inmates is much

more complicated than the treatment of a harmless lunatic.

Cf. Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th Cir.

1995). Measures reasonably taken to protect inmates and

staff from him may unavoidably aggravate his psychosis; in

such a situation, the measures would not violate the Consti-

tution. It was when Scarver was permitted to mingle with

other inmates at the Columbia Correctional Institution that

he killed two of them. Maybe there is some well-known

protocol for dealing with the Scarvers of this world, though

probably there is not (we have found none, and his lawyer

has pointed us to none); fortunately they are few in number.

Scarver has presented no evidence concerning the tech-

niques that the two prisons in Colorado use to allow a

dangerous prisoner to mingle with other inmates without

endangering them or staff. Dahmer, who doubtless would

have been executed in any state that retains the death

penalty, was a unique target. The other inmate whom

Scarver murdered was not; the motive there may have been

that the inmate had tried to pin his crime on a black man

(Scarver is black). Race may also have played a role in

Scarver’s decision to murder Dahmer, many of whose

victims were black. Other white inmates—at least those

whom Scarver perceives to have wronged blacks—might

also be at risk of being attacked and perhaps killed by him.

The murderous ingenuity of murderous inmates, espe-

cially in states such as Wisconsin that do not have capital

punishment, so that inmates who like Scarver are already

serving life terms are undeterrable, cannot be overesti-

mated. See, e.g., Schlup v. Delo, 513 U.S. 298, 301-02 (1995);

Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir. 2005); United

8 No. 05-2999

States v. Tokash, 282 F.3d 962, 965 (7th Cir. 2002); Bruscino v.

Carlson, 854 F.2d 162, 164 (7th Cir. 1988); United States v.

Fountain, 768 F.2d 790 (7th Cir. 1985); United States v.

Silverstein, 732 F.2d 1338, 1341-42 (7th Cir. 1984); Allen v.

Woodford, 366 F.3d 823, 831-33 (9th Cir. 2004); Shrader v.

White, 761 F.2d 975, 982 (4th Cir. 1985). Prison authorities

must be given considerable latitude in the design of mea-

sures for controlling homicidal maniacs without exacerbat-

ing their manias beyond what is necessary for security. It is

a delicate balance. “Federal judges must always be circum-

spect in imposing their ideas about civilized and effective

prison administration on state prison officials. The Constitu-

tion does not speak with precision to the issue of prison

conditions (that is an understatement); federal judges know

little about the management of prisons; managerial judg-

ments generally are the province of other branches of

government than the judicial; and it is unseemly for federal

courts to tell a state . . . how to run its prison system.” Duran

v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985); see also Bell v.

Wolfish, 441 U.S. 520, 547 (1979).

It may be necessary to separate measures taken to protect

inmates and staff from a homicidal inmate from condi-

tions that inflict serious suffering without any security

rationale. (We say “may be” because the two types of

condition may not be separable in practice.) Had the

defendants realized the risk of serious harm to Scarver that

was created by extreme heat (interacting with his

antipsychotic medication) and the denial of audiotapes,

their decision to disregard that risk probably could not have

been justified by his dangerousness. Those aspects of his

confinement did not protect other inmates or guards from

Scarver or Scarver from himself, although the

heat—conceivably even the prohibition of audiotapes—may

have been an indirect result of trying to prevent prisoners

from fashioning weapons from fixtures, perhaps including

No. 05-2999 9

air-conditioning vents and control, or from other materials,

in the cell. The constant illumination of his cell may have

had a security rationale as well; it reduced the likelihood

that Scarver would use the cloak of darkness to attempt

suicide or make a weapon of some sort. In any event, as we

noted earlier, Scarver has failed to cite evidence to overcome

the defendants’ denials that they knew these conditions

were making his mental illness worse.

AFFIRMED.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-18-06