Pinkston, James E. v. Madry, Anthony

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2973

JAMES E. PINKSTON,

Plaintiff-Appellant,

v.

ANTHONY MADRY and

JANIENE GRISSELLE,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:00 CV 090 RM—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED DECEMBER 2, 2004—DECIDED MARCH 14, 2006

____________

Before COFFEY, RIPPLE and MANION, Circuit Judges.

COFFEY, Circuit Judge. On May 3, 2000, James

Pinkston filed a complaint in federal court pursuant to

42 U.S.C. § 1983 alleging that two correctional officers at

the Indiana Department of Corrections Maximum Con-

trol Complex in Westville, Indiana, violated his Eighth

Amendment rights when they allowed another prisoner

to assault him and thereafter refused to assist him in

receiving adequate medical care. While discovery was

underway, the district court assigned a magistrate judge to

dispense with all non-dispositive matters and to file

proposed findings of fact and conclusions of law. See 28

U.S.C. § 636(b)(1)(B). The magistrate judge subsequently

2 No. 03-2973

convened an evidentiary hearing and, after performing a de

novo review of the evidentiary hearing transcript and the

magistrate judge’s recommendations, the district court

adopted the magistrate judge’s decision granting

the defendants-appellees motion for “Judgment on Partial

Findings” under Federal Rules of Civil Procedure 52(c).

We affirm.

I. BACKGROUND

At all times relevant to this appeal Pinkston was confined

at the Indiana Department of Corrections Maximum

Control Complex (“MCC”) in Westville, Indiana, a maxi-

mum security prison operated as an institution to confine

the most aggressive criminals in the Indiana prison

system.1 While incarcerated at the facility, Pinkston had a

number of acrimonious and brutal run-ins with corrections

officers as well as fellow inmates.2

Sometime in September of 1999, Pinkston commenced

to harbor animosity towards Corrections Officer Anthony

Madry. On or about September 16, 1999, Pinkston allegedly

witnessed Madry returning a pair of sweatpants that he

had laundered for another inmate, Dana Smith. Feeling left

out, Pinkston asked Madry to wash his sweats as well, but

that request was summarily denied.

1

Correctional Officer Madry, a defendant in this action, testified

at the evidentiary hearing that, before being reassigned to the

MCC, the criminals “had to be at another prison [previously],

[where they had] committed assault on an officer or another

offender, or [had been] involved in some kind of riot, or something

like that.” Pinkston became eligible for placement in the MCC

after he attacked another inmate with a weapon.

2

In 1997, Pinkston attacked another offender with a weapon and

testified that he regularly “got into . . . fights.”

No. 03-2973 3

On the morning of September 17, 1999, with tensions

somewhat charged from the events of the previous day,

Smith and Pinkston began trading insults back and forth

from their adjacent cells. In hopes of avoiding the possi-

bility of being alone with Smith, Pinkston chose to go to the

showers that afternoon instead of going to recreation.

Officer Madry was assigned to accompany Pinkston to the

shower facility and, according to Pinkston, while Madry was

shackling him for transport he (Madry) intentionally left his

handcuffs “loose.” Then, during the walk to the showers,

Pinkston claims that Madry encouraged him to “slip his

cuffs” as a sign of aggression so that Madry would be

justified in engaging in an altercation with him. Pinkston

refused to do so and, after showering, requested that two

different officers escort him back to his cell. The guards

eventually acquiesced, and Pinkston was returned to his

cell without incident.

The events of September 19, 1999, however, are the

impetus of this lawsuit. Pinkston claims that, after he

showered, Madry began yelling at him, telling him that he

was going to “whoop him.” Another officer, Officer Chap-

man, allegedly joined Pinkston and Madry in the shower

area with baton in hand, and Pinkston claims that he

became frightened that the officers might “jump” him.

However, nothing happened and he was led back to his

cell without incident.

What happened next is the subject of dispute. Pinkston

claims that later that day (September 19th) he was again

approached by Madry, this time while he was locked in his

cell. Madry allegedly spoke to Pinkston, with Smith in

earshot, intimating that he was going to unlock the doors of

the two inmates cells so that Smith and Pinkston could

fight it out. At some point in the next few minutes, Madry

walked away and the doors to Smith and Pinkston’s cells

opened. With other inmates watching, the two allegedly

4 No. 03-2973

engaged in fisticuffs, with Pinkston receiving a punch to the

face from Smith, injuring his lip and drawing blood.

According to Pinkston, while the fight was going on

Madry and another officer, Officer Janiene Grisselle,

observed the melee from the control room and, as a result,

Madry immediately went down to investigate.3 As Madry

approached, the tussle ceased and Pinkston returned to

his cell. Madry located a mop and cleaned up the blood

on the floor. While he was doing this, Pinkston requested

that he be allowed to see the nurse. Madry allegedly

responded flippantly4 and returned to the control room

when he was finished cleaning up. After Madry re-

turned to the control room, Grisselle walked down to

Pinkston’s cell and assessed his wounds. Grisselle then

secured some Band-Aids, tape, and ice from the nurse’s

station, returned to Pinkston’s cell and proceeded to

treat his lip with a bandage and an alcohol pad while

attempting to calm him down. The nurse was not called

at that time, but Grisselle did return later to re-dress

Pinkston’s lip.

Approximately four days later, on September 23, 1999,

Pinkston submitted a formal medical request as well as

a form requesting a conference with a counselor. The

following day, Pinkston was interviewed by Rosanne

Downey-Zinkan a behavioral clinician, who discussed the

incident with Pinkston and observed that he had an “injury

to [his] lip, puffy, and injury about [his] eye; both on the left

3

A shift change occurred and Officer Chapman had been replaced

by Officer Janiene Grisselle.

4

Pinkston claims that Madry stated: “That’s what happens to

little bitches. You better lay down and take that ass kicking.”

No. 03-2973 5

side [of his face].”5 The clinician suggested that Pinkston

seek medical help, if he felt that was necessary, and advised

him that he might want to file a grievance, if he was so

inclined. Pinkston followed this advice and, on September

24, 1999, filed a grievance with the prison’s administration,

which was denied as untimely.6

On September 29, 1999, Pinkston was again examined,

this time by a nurse who described him in her report as

being “very uncooperative” and noted that, at that time, she

observed no “redness, swelling or discharge” on the left side

of his face. She went on to note that, when Pinkston was

“asked how [the] injury occurred and where other injuries

are located [he] stood up and left the room,” without

answering. Two days later, Pinkston submitted a second

written medical request. Upon receipt, the nurse on duty

requested that an x-ray of Pinkston’s facial area be per-

formed in order to rule out a broken jaw. The prison’s doctor

agreed with the recommendation and ordered an x-ray,

scheduling it for October 6, 1999. However, Pinkston

refused the x-ray procedure in writing when he submitted

a third health care request form on October 5, 1999, in

which he wrote that he didn’t “need an x-ray” because he

didn’t “have a fracture[d] jaw.”7 Instead, Pinkston averred

that he “just wanted to be seen under confidentiality, and

have it noted [sic] about the injuries [he] received from the

assault.” On October 8, 1999, Pinkston filed a fourth

medical request form complaining that his “jaw [was] still

5

Downey-Zinkan also had a follow up meeting with Pinkston

on October 5, 1999, after which she noted that his “[l]ip was

not swollen, [and that the] facial discoloration was gone.”

6

According to prison regulations all grievances must be sub-

mitted within 48 hours of the alleged incident.

7

In addition, Pinkston also refused x-rays on October 12, 1999,

and October 14, 1999.

6 No. 03-2973

swollen.” That request was granted and the doctor agreed

to see Pinkston on October 14, 1999, but apparently

Pinkston once again refused medical attention, for in his

file it is noted that he “refused to be seen by the M.D.”8

On October 20, 1999, Pinkston wrote the superintendent

of the prison alleging that Officers Madry and Grisselle

allowed another inmate to assault him and requested

that his complaint be investigated. On November 21, 1999,

a formal investigation was launched by Investigator Surney

of the Indiana Department of Corrections. Surney later

submitted a report, concluding that “[d]ue to lack of evi-

dence and [Pinkston’s] unwillingness to cooperate with the

medical staff, this writer finds the incident to be unfounded

and without merit.”

Not happy with the outcome of the Department of Correc-

tion’s investigation, Pinkston filed suit in the United States

District Court for the Northern District of Indiana on

February 9, 2000. In his pro se complaint Pinkston asserted

that Officers Madry and Grisselle had violated his Eighth

Amendment rights on September 19, 1999, when they: (1)

failed to protect him from inmate Smith who attacked him

and; (2) failed to provide him with adequate medical care

following the incident. Following discovery and an unsuc-

cessful motion by the defendants for summary judgment,

the case was referred to a magistrate judge on August 6,

2002, for disposition of all dispositive and non-dispositive

matters. See 28 U.S.C. § 636(b)(1)(B).

The assigned magistrate judge, Judge Nuechterlein,

ordered an evidentiary hearing. At the hearing, on April 30-

May 1, 1999, Pinkston presented a number of witnesses,

including a fellow inmate, John Meriweather, and four

prison employees, Officers Jeffery Caldwell and Michael

8

Although the record is somewhat unclear, it appears that

Pinkston was examined in person by medical staff on at least

two occasions. See supra pp. 4-5.

No. 03-2973 7

Walker, Nurse Michelle Conrad, and behavioral clinician

Rosanne Downey-Zinkan. Of these witnesses, Meriweather

was the only person that claimed to have actually witnessed

the attack. While he could not be “specific on the date” of

the fight and acknowledged that he did not actually “see the

incident” due to the position of his cell, Meriweather

testified that from his cell he “could hear somebody . . .

fighting” in the vicinity of Pinkston’s cell on or about the

19th of September, 1999.

After presenting his witnesses, Pinkston also testified

on his own behalf in a narrative, during which Judge

Nuechterlein felt it was necessary to ask a number of

questions in an attempt to clarify portions of his testimony.

Specifically, Pinkston testified that, around 7:00 pm on

September 19, 1999, Officer Madry was the only officer left

on the cell block after a shift change had occurred. Pinkston

stated that, shortly thereafter, he had a brief conversation

with inmate Smith and then proceeded to the control tower

where he “gave power to [Pinkston’s] door,” causing it to

open. At that point, Pinkston told the court that he walked

out of his cell where he and inmate Smith “fought three

times . . . it was like wrassling [sic] and stuff.” According to

Pinkston it was Madry who went down to the area where

the fight was taking place to “break it up,” but stated that

before the fight was interrupted Smith “hit [him] in the

mouth and split [his] lip.” Pinkston then informed the court

that, after the fight ended, he retreated to his cell while

Madry “grabbed a mop and started mopping up the blood.”9

In addition, Pinkston specifically testified concerning

9

Pinkston added that, while he was mopping up the blood, Madry

was taunting him, saying things like “[y]ou better lay down that

take that [explicative deleted] beating,” and congratulating Smith,

telling him that he “got [sic] him good.”

8 No. 03-2973

Officer Grisselle’s absence during or prior to the fight,10 as

well as her appearance afterwards and efforts to supply

Pinkston with medical assistance on two different occasions.

On cross-examination, Pinkston also made clear that Madry

did not, at any point, strike him and he was not claiming

that Madry ever directly physically harmed him.

At the close of Pinkston’s presentation of his case, Madry

and Grisselle moved for judgement on partial findings

pursuant to Fed. R. Civ. P. 52(c). The court granted the

motion, in part, finding that Pinkston had failed to carry his

burden of establishing by a preponderance of the evidence

that either Madry or Grisselle had been deliberately

indifferent to his serious medical need following his fight

with Smith. See Wynn v. Southward, 251 F.3d 588, 593 (7th

Cir. 2001). Specifically, the magistrate judge concluded

that: (a) Pinkston’s claims of a split or bloody lip and

bruising on his back were insufficient to qualify as a

“serious medical need”; (b) facts and evidence produced at

the hearing established that Pinkston waited a prolonged

period of time (4-5 days) before he formally requested

medical attention severely undermined his assertion that

his injury was serious; and (c) the fact that Pinkston was

uncooperative and unreceptive when medical treatment was

offered in response to his requests belied his claim of

deliberate indifference to a serious medical need on the part

of prison officials.11 In addition, the magistrate verbally

10

For example, when asked whether he was, in any way, claiming

that Officer Grisselle was involved in allowing the fight with

Smith to take place, Pinkston stated that “she didn’t [sic] do

nothing . . . I don’t think she had any knowledge of it . . . . She

didn’t even know it was going to happen.”

11

In addition, in his written submission of findings of fact and

conclusions of law, the magistrate judge cited Pinkston’s testi-

mony that, on at least two occasions, Grisselle “administered

(continued...)

No. 03-2973 9

granted the defense’s motion to dismiss Grisselle from the

suit pursuant to Rule 52(c), finding that Pinkston had not

established that Grisselle had failed to protect him.12

Nevertheless, because the magistrate felt that there was

some degree of uncertainty in the evidence presented as to

Madry’s specific role in the fight, i.e., whether Madry

purposely allowed Smith to attack Pinkston in hopes that

Pinkston would be harmed, the magistrate judge declined

to render any judgment on Madry’s motion for judgment on

partial findings until the close of the defense’s case. See

Fed. R. Civ. P. 52(c).

The defense called only one witness, Officer Madry,

during its presentation at the evidentiary hearing. Madry

testified that he recalled “exchanging words” and trading

“negative comments; that type of thing” with Pinkston, but

denied instigating or allowing the fight to take place

between Pinkston and Smith. In addition, Madry corrobo-

rated testimony given by two other prison guards (Caldwell

and Surney), stating that it took two officers to activate the

locking devices in order to open an inmate’s cell and that

one officer, on his own, could not open a cell door (in

contrast to Pinkston’s assertion that Officer Madry opened

his cell door without assistance from anyone outside the cell

block’s control room).13 Madry concluded his testimony by

11

(...continued)

medical aid to [Pinkston’s] injuries.”

12

Indeed, Pinkston himself testified that Grisselle was not

present in the cell block at the time that his fight with Smith took

place. See supra p. 8 n.10 and accompanying text.

13

Specifically, Madry testified that the process of opening an

inmate’s cell required two people: one officer, located in the

control room which overlooks the cell block, to “give power” to

the cell door, and another guard, positioned right outside the

cell, to push a button that—when activated at the same time as

(continued...)

10 No. 03-2973

stating that he was unable to explain why that day’s time

sheets had not been filled out and filed, although it was

official policy to document all operations in the cell block.14

After Madry’s testimony, the defense rested and the

magistrate judge—without rendering judgment on Madry’s

motion for judgment on the findings under Fed. R. Civ. P.

52(c)—retired to prepare written findings of fact and

conclusions of law in accordance with the district judge’s

instructions and 28 U.S.C. § 636(b)(1)(B).

On May 13, 2003, Magistrate Judge Nuechterlein

issued his written findings of fact and conclusions of law. In

that document, the magistrate judge reiterated his previous

findings, including his decision to grant Grisselle and

Madry judgment on partial findings based on Pinkston’s

failure to provide medical care claim. See supra p. 7-8. In

addition, the judge also found that the defense was entitled

to judgment under Rule 52(c) on Pinkston’s failure to

protect claim. The judge repeated his finding that, accord-

ing to Pinkston’s own testimony, Grisselle was not present

in the cell block during the time period when the fight took

place and, therefore, could not be responsible for the fight,

much less held liable under § 1983. Further, the magistrate

judge concluded that, despite Madry’s “unconvincing

memory lapses” concerning the events of September 19,

13

(...continued)

the button in the control room—would open the cell door. Thus, it

was physically, as well as mechanically, impossible for one person

standing in the control room to open any cell door, including

Pinkston’s, on his own; that is, without assistance from another

person standing right in front of the cell pushing the correspond-

ing button.

14

Indeed, Madry was unable to recall many details concerning the

events of September 19, 1999, such as what time Officer Grisselle

left the cell block and when—or if—the prisoners were taken for

showers or recreation that day.

No. 03-2973 11

1999, Pinkston had not established that Madry had violated

his Eighth Amendment right by failing to protect him from

a substantial risk of serious harm. Explaining this conclu-

sion, the magistrate cited: (a) the fact that Madry would not

have been able to open Pinkston’s cell door from the control

room without the assistance of another guard in a differ-

ent area of the cell block; (b) Pinkston’s failure to timely

report the supposedly serious injuries he incurred from the

fight until September 23, five days thereafter; and (c) the

lack of evidence corroborating Pinkston’s version of

events—except for the vague testimony of fellow inmate

John Meriweather, who testified that he did not see the

fight, only overheard it and could not state with any

specificity what took place prior to or during the incident.

Having so concluded, the magistrate judge recommended

that the district court enter judgment in favor of the

defendants.

Following receipt of the magistrate’s recommendation,

Pinkston filed a number of hand-written objections to

the recommendation with the district court. On July 3,

2003, Chief Judge Robert L. Miller, Jr., after reviewing the

magistrate’s report as well as Pinkston’s objections, entered

judgment in favor of the defendants. In his order, Judge

Miller wrote the following:

Having thoroughly reviewed the plaintiff’s objections to

[the] United States Magistrate Judge’s report and

recommendation of May 13, 2003, and having conducted

a de novo review of the transcript of the evidentiary

hearing conducted on April 30 and May 1, 2003, the

court finds itself in complete agreement with the

reasoning and result of the report and recommendation.

The court therefore OVERRULES the plaintiff’s objec-

tions (filed May 28, 2003). Having no difficulty in

reading the handwritten objections, the court also

DENIES the plaintiff’s motion (filed May 28, 2003) for

additional time within which to submit a typed version.

12 No. 03-2973

The court ADOPTS the magistrate judge’s report

and recommendation and directs that judgment be

entered for both defendants and against the plaintiff.

SO ORDERED.

Pinkston v. Madry, No. 3:00CV0090RM (N.D. Ill. July 3,

2003). Pinkston timely appealed.

II. ISSUES

On appeal Pinkston argues that the district court erred in

adopting the magistrate’s finding that Pinkston had not

established by a preponderance of the evidence his § 1983

claims for failure to protect and deliberate indifference

to a serious medical need. Pinkston also claims that

the procedure that the district court employed in adopt-

ing the magistrate’s recommendations violated both the

spirit and letter of 28 U.S.C. § 636(b)(1)(B). Specifically,

Pinkston argues that the district court erred by allowing the

magistrate judge to conduct a “quasi bench trial rather than

an evidentiary hearing.” Also, Pinkston claims that instead

of “rubber stamping” the magistrate’s decision, the district

court should have conducted a more thorough review of the

evidentiary hearing.

III. DISCUSSION

The district court adopted the magistrate judge’s grant of

the defendant-appellant’s motion for Judgment on Partial

Findings pursuant to Fed. R. Civ. P. 52(c). Rule 52(c)

provides that:

If during a trial without a jury a party has been fully

heard on an issue and the court finds against the

party on that issue, the court may enter judgment

as a matter of law against that party with respect to

a claim or defense that cannot under the controlling law

No. 03-2973 13

be maintained or defeated without a favorable finding

on that issue, or the court may decline to render any

judgment until the close of all the evidence. Such a

judgment shall be supported by findings of fact and

conclusions of law . . . .

Id. When reviewing a judgment premised on Rule 52(c), the

district court’s factual findings—adopted from the magis-

trate judge’s recommendation—are reviewed for clear error

only. See Collins v. Ralston Purina Co., 147 F.3d 592, 599

(7th Cir. 1998); Hirsch v. Burke, 40 F.3d 900, 903 (7th Cir.

1994); Zeige Distributing Co. v. All Kitchens, Inc., 63 F.3d

609, 612 (7th Cir. 1995). In addition, where the district

court “correctly states the law, then his findings as to

whether the facts meet the legal standard will be disturbed

only if they are clearly erroneous.” Daniels v. Essex Group,

Inc., 937 F.2d 1264, 1269 (7th Cir. 1991) (citing Pull-

man-Standard v. Swint, 456 U.S. 273, 288 (1982) and Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)).

Under the clearly erroneous standard we may not “reverse

the finding of the trier of fact simply because . . . [we] would

have decided the case differently.” Anderson v. City of

Bessemer, 470 U.S. 564, 573 (1985). Instead, we are re-

quired to affirm the district court’s judgment “[i]f the

district court’s account of the evidence is plausible in light

of the record viewed in its entirety.” Id. at 573-74. Clear

error is an extremely deferential standard of review, and

will only be found to exist where the “reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed.” Anderson, 470 U.S. at

573 (quoting United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948)).

A. Pinkston’s § 1983 Claims

Pinkston’s initial argument on appeal is that it was

clear error for the district court to adopt the magistrate’s

14 No. 03-2973

finding that neither of the guards, Madry or Grisselle,

violated Pinkston’s Eighth Amendment rights by allegedly

failing to protect him from his attacker and failing to

provide timely and adequate medical care to him follow-

ing the altercation. For simplicity’s sake, we discuss each of

his Eighth Amendment claims in turn.

1. Failure to Protect

Pinkston argues that it was clear error for the district

court to adopt the magistrate’s determination that he failed

to establish that either Madry or Grisselle had failed to

protect him from a serious risk of physical harm by allowing

a fight to occur between inmate Smith and himself. Specifi-

cally, Pinkston argues that he carried his burden by

demonstrating that Madry had the ability, as well as the

opportunity, to singlehandedly open the prisoners’ cells so

that a fight could take place. Going further out on a limb,

Pinkston also claims on appeal that he established that

Grisselle was either a direct participant or was complicit in

the attack. We disagree and find no merit to either of these

assertions.

As the Supreme Court has recognized, “prison officials

have a duty . . . to protect prisoners from violence at the

hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825,

833 (1994) (quoting Cortes-Quinones v. Jimenez- Nettleship,

842 F.2d 556, 558 (1st Cir. 1988)). “It is not, however, every

injury suffered by one prisoner at the hands of another that

translates into constitutional liability for prison officials

responsible for the victim’s safety.” Id. at 834. In order to

state a claim under the Eighth Amendment for failure to

protect, a plaintiff bears the burden of establishing prison

officials were “deliberately indifferent” to the fact that an

inmate was in serious peril of being harmed. Board v.

Farnham, 394 F.3d 469, 478 (7th Cir. 2005); see Henderson

v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). In other

words, in order to prevail, Pinkston must demonstrate that

No. 03-2973 15

he “ ‘was at serious risk of being harmed [and Madry and

Grisselle] decided not to do anything to prevent that harm

from occurring even though [they] could have easily done

so.’ ” Board, 394 F.3d at 478. (quoting Armstrong v.

Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)). However,

“conduct that simply amounts to ‘mere negligence or inadver-

tence’ is insufficient to justify the imposition of liability.”

Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985) (quoting

Estate of Davis v. Johnson, 745 F.2d 1066, 1070 (7th Cir.

1984)). Instead, “[i]n order to infer callous indifference when

an official fails to protect a prisoner from the risk of attack,

there must be a ‘strong likelihood’ rather than a ‘mere

possibility’ that violence will occur.” Id.

At the evidentiary hearing Pinkston failed to establish

that Madry and/or Grisselle failed to protect him from a

situation in which there was a “strong likelihood” that

violence would occur. Id. As the magistrate judge pointed

out in his recommendation to the district court, Pinkston

failed to establish by a preponderance of the evidence

that Madry could have opened the cell door on his

own/without assistance and, as Pinkston himself stated,

Grisselle wasn’t even present in the cell block area when his

cell door was opened. When asked at the evidentiary

hearing whether he was “seeking damage [sic] from former

officer Grisselle for opening the cell door,” Pinkston in

fact stated that “she didn’t have nothing [sic] to do with

that part.” In addition, no less than three witnesses—

Officers Madry and Caldwell, along with Department of

Corrections investigator Surney—testified at the eviden-

tiary hearing concerning the locking mechanism on the

cell doors. Specifically, each witness testified that, in order

to open a particular inmate’s cell, one officer needs to

be located in the control room “giving power” to the door

with the pushing of a button, and another officer must be

stationed directly in front of the inmate’s door simulta-

neously depressing another button. See supra p. 10 n.13.

16 No. 03-2973

During the hearing neither Pinkston nor his witnesses

could identify any other guards that were present on the

cell block at the time of his fight with Smith, that would

have been in a position to help Madry open the cell door.

Nonetheless, in his brief, without citing any support in

the record, Pinkston argues that the magistrate judge

should have credited Pinkston’s testimony that Madry could

have opened his cell from the control room by himself, over

that of at least two other credible witnesses.15 However, the

procedural posture of this case falls under a judgment on

partial findings under Rule 52(c), not summary judgment

under Rule 56. Unlike summary judgment which requires

that judgment be rendered as a matter of law, a trial court

ruling on a motion for judgment on partial findings under

Rule 52(c) is acting in the capacity of a finder of fact,

weighing evidence and assessing the credibility of the

15

In a related argument, Pinkston claims that the magistrate

judge precluded him from calling additional witnesses to testify as

to the events of September 19, 1999. However, it is clear from the

record that the magistrate judge did no such thing. Prior to the

evidentiary hearing the magistrate judge informed Pinkston via

letter that he would not be allowed to call “several prisoners to

testify to the same thing.” This was a reasonable determination by

the magistrate judge, who was simply trying to preclude the

introduction of cumulative or repetitive testimony and thus

conserve judicial resources; Pinkston was in no way prejudiced

during the evidentiary hearing by the magistrate judge’s determi-

nation. See Horton v. Litscher, 427 F.3d 498, 507-08 n.15 (7th Cir.

2005); see also United States v. Orr, 825 F.2d 1537, 1540 (11th Cir.

1987) (stating that a trial court judge may limit testimony where

cumulative and when defendant had substantial opportunity to

expose witness’ potential biases). Nevertheless, because Pinkston

failed to object to the magistrate judge’s order prior to, during or

after the hearing, the issue has been waived. See, e.g., Wernsing

v. Thompson, 423 F.3d 732, 751 (7th Cir. 2005); Premcor USA, Inc.

v. Am. Home Assurance Co., 400 F.3d 523, 530 (7th Cir. 2005);

Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir. 2002).

No. 03-2973 17

witnesses. See United States v. $242,484.00, 389 F.3d 1149,

1172 (11th Cir. 2004) (citing Caro-Galvan v. Curtis Richard-

son, Inc., 993 F.2d 1500, 1504 (11th Cir. 1993)); see also

Furth v. Inc. Publishing Corp., 823 F.2d 1178, 1179 (7th

Cir. 1987). Accordingly, appellate review of a judgment

rendered under Rule 52(c) is for clear error only, and we

afford the plaintiff no special deference and need not draw

any inferences in his favor. See Int’l Union of Operating

Engineers, Local 103 v. Indiana Constr. Corp., 13 F.3d 253,

257 (7th Cir. 1994) (holding that the district “court is within

its prerogative ‘to weigh the evidence, resolve any conflicts

in it, and decide for itself where the preponderance lies.’ ”)

(quoting Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d

1467, 1475 (7th Cir. 1993)).

Pinkston has failed to present us with any evidence which

would bolster his speculative claim that Madry could have

opened his cell door without the assistance of another

guard, thus allowing the fight to occur. Further, the record

is barren of any evidence which would suggest that there

was another guard present on the cell block who could have

assisted Madry in the opening of the cell door. Thus, after

considering the evidence of record and the transcript of the

hearing, it was not error, much less clear error for the

district court to adopt the magistrate judge’s recommenda-

tion that the defendants were entitled to judgment on

partial findings as to the failure to protect portion of

Pinkston’s claim.16

16

In a tag-along argument, Pinkston claims that the district court

should have somehow surmised from Pinkston’s testimony that

another, unidentified guard or other person, helped Madry open

his cell so that the fight could take place. However, at the

evidentiary hearing Pinkston specifically renounced this newly

introduced theory, stating that he could not, and would not,

identify any other person that may have assisted Madry in

(continued...)

18 No. 03-2973

2. Deliberate Indifference to a Serious Medical Need

Next, Pinkston claims that the district court judge

erred in adopting the magistrate’s conclusion that neither

Madry nor Grisselle violated his Eighth Amendment

rights by refusing him adequate medical attention following

the fisticuffs with Smith. Specifically, Pinkston argues that

the magistrate’s determination that his swollen cheek,

combined with his split lip did not rise to the level of an

objectively serious medical condition, constituted clear

error. Pinkston maintains, not only that his split lip and

swollen cheek constituted an objectively serious medical

need, but also that Madry and Grisselle were deliberately

indifferent to that need by failing to request or provide

adequate medical care. We disagree.

As the magistrate judge noted, in order to prevail on an

Eighth Amendment claim for failure to provide medical

care, a plaintiff has the burden of demonstrating that

“(1) the harm to the plaintiff was objectively serious; and (2)

the official was deliberately indifferent to her health

or safety.” Board, 394 F.3d at 478, accord Farmer, 511

U.S. at 834-37. At the evidentiary hearing Pinkston failed

to establish either prong of this long-standing test.

Initially, we note this court has held that injuries, such as

those alleged by Pinkston—a split lip and a swollen

cheek—do not rise to the level of an objectively serious

medical need. For example, in Davis v. Jones, this court

held that a one-inch laceration to an arrestee’s temple, that

was neither deep enough or long enough to require stitches,

16

(...continued)

opening the door. In addition, an unidentified guard would

not helped Pinkston’s case, for in order to prevail on a § 1983

claim a plaintiff must identify those individuals who have

allegedly violated a constitutional right. See Harper v. Albert, 400

F.3d 1052, 1066 (7th Cir. 2005).

No. 03-2973 19

and a scraped elbow did not require prompt medical

attention under the Eighth Amendment. See Davis v. Jones,

936 F.2d 971, 972-73 (7th Cir. 1991). In sum, Pinkston’s

split lip and swollen cheek do not qualify as injuries that

are “so obvious that even a lay person would easily recog-

nize the necessity for a doctor’s attention.” Wynn, 251 F.3d

at 593.

Furthermore, even if we were to assume, for purposes

of argument only, that Pinkston has indeed somehow

established an objectively serious medical need, he has

certainly failed to demonstrate that Madry and Grisselle

were deliberately indifferent to that hypothetical need. See

Board, 394 F.3d at 478; see also Hughes v. United Van

Lines, Inc., 829 F.2d 1407, 1420 (7th Cir. 1987) (holding

that: “[w]hen findings are based on determinations regard-

ing the credibility of witnesses, Rule 52 demands even

greater deference to the trial court’s findings; for only the

trial judge [is in a position to be] aware of the variations in

demeanor including but not limited to the actions, manner-

isms, and facial expressions that bear so heavily on the

listener’s understanding of and belief in what is said.”);

United States v. Woods, 233 F.3d 482, 484 (7th Cir. 2000)

(holding that we will not second-guess the credibility

determinations of a trial judge, because “he or she has the

‘opportunity to observe the verbal and nonverbal behavior of

the witnesses focusing on the subject’s reactions and re-

sponses to the interrogatories, their facial expressions,

attitudes, tone of voice, eye contact, posture and body move-

ments,’ as well as confused or nervous speech patterns in

contrast with merely looking at the cold pages of an appel-

late record.”) (emphasis in original) (citations omitted). The

record clearly supports the conclusion that Madry and

Grisselle both undertook necessary steps to treat Pinkston

for his injuries immediately after the altercation with Smith

took place. For instance, Pinkston himself testified that

after Madry “went into the control booth,” Grisselle came to

20 No. 03-2973

his cell “looked at [his] lip, and then went into the nurse’s

station and got some skin closures, some Band-Aids, some

tape, [and] some ice.” After securing the medical supplies,

Pinkston testified that Grisselle entered his cell and “taped

and bandaged” his split lip. Further, Pinkston testified that

Grisselle returned shortly thereafter, assessed his condi-

tion, and secured additional “medical supplies” in order to

change the dressing on his lip. There was nothing indiffer-

ent, much less deliberately indifferent about the care and

treatment offered by the officers that day. See Wynn, 251

F.3d at 593; Farmer, 511 U.S. at 835 (stating that “deliber-

ate indifference entails something more than mere negli-

gence.”)

What’s more, the record establishes that if anyone was

indifferent to Pinkston’s injuries, it was Pinkston himself.17

It is undisputed that Pinkston failed to formally request

medical attention until approximately four days after the

altercation took place—the fight allegedly took place on

September 19, 1999, and despite the fact that he was

allegedly “seriously injured” Pinkston did not submit a

medical attention request form until September 23, 1999.

Citing this fact, the magistrate judge correctly concluded

that even Pinkston did not consider his injuries serious

enough that they rose “to the level of injuries which [were]

life threatening or pose[d] a risk of needless pain or linger-

ing disability if not treated at once as required by the

Eighth Amendment.” Pinkston v. Grisselle, No. 3:00-CV-

090RM at *8 (N.D. Ind. May 13, 2003); see Davis v. Jones,

936 F.2d 971, 972 (7th Cir. 1991). Thus, summoning the

services of a physician/surgeon was not necessary under the

17

Indeed, the lackadaisical and even obstinate attitude that

Pinkston exhibited towards his requests for medical help regard-

ing his on-again/off-again “serious” injuries in the days following

the fight is compelling evidence that those injuries were, in fact,

very minor.

No. 03-2973 21

factual situation presented, for “a prison official cannot be

found liable . . . for denying an inmate humane conditions

of confinement unless the official knows of and disregards

an excessive risk to inmate health or safety; the official

must both 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.” Farmer, 511 U.S. at 837.

In addition, the record is replete with repeated instances of

Pinkston being most uncooperative with medical staff and

refusing medical assistance when it was offered to him,

such as the various occasions on which he refused doctor-

ordered x-rays to assist in determining whether or not

any bones in his face had been broken. See supra p. 5-6.

Thus, because the record is most clear that Pinkston’s

injuries were not objectively serious and because the prison

staff’s actions were anything but deliberately indifferent,

the district court did not commit clear error, or err in any

way, when adopting the magistrate judge’s finding that

Pinkston’s failure to provide medical attention claim should

fail.

B. The District Court’s Adoption of the Magistrate Judge’s

Recommendation

Pinkston also claims that the district court violated 28

U.S.C. § 636(b)(1)(B) by allowing the magistrate judge to

conduct a “quasi bench trial rather than an evidentiary

hearing” and that the court erred by “rubber stamping”

the magistrate’s decision rather than conducting a more

thorough de novo review of the evidentiary hearing. This is

rather innovative, yet arrantly unavailing argument.

Section 636(b)(1)(B) of Title 28 specifically provides that

a district court judge “may designate a magistrate judge

to conduct hearings, including evidentiary hearing, and

to submit to a judge of the court proposed findings of

22 No. 03-2973

fact and recommendations for the disposition . . . of any

motion excepted in subparagraph (A) . . . .” This is exactly

what Judge Miller did when he drafted his order instructing

Magistrate Judge Nuechterlein to “conduct such proceed-

ings as are required and, when appropriate, enter into the

record a written order setting forth the disposition of all

nondispositive pretrial matters now pending . . . and further

to conduct hearings, including evidentiary hearings and

trial, and to submit proposed findings of fact and recom-

mendations for the disposition of the plaintiff’s complaint

pursuant to 28 U.S.C. § 636(b)(3).”

As Pinkston correctly points out, 28 U.S.C. § 636(b)(3)

requires that a magistrate judge must procure “the consent

of the parties” in order to conduct a bench trial. Members v.

Paige, 140 F.3d 699, 701 (7th Cir. 1998). However, that

point was never reached in this case. A trial did not become

a necessity because, after the hearing, the magistrate judge

recommended—and the district court agreed— that the

judgment would be entered pursuant to Fed. R. Civ. P.

52(c). See id. (stating that “because the plaintiff

is a prisoner and the case concerns ‘conditions of con-

finement’ . . . the judge could refer the case to a magis-

trate judge for a hearing and recommendation under

§ 636(b)(1)(B), subject to de novo review by the district

judge”). Thus, since the magistrate judge was acting

well within the scope of his authority and jurisdiction

pursuant to § 636(b)(1)(B) by overseeing the commencement

of an evidentiary hearing, Pinkston’s musings about the

requirements of 28 U.S.C. § 636(b)(3) are superfluous. In

addition, any claim by Pinkston that the magistrate judge

conducted a “quasi bench trial” is misplaced, for the eviden-

tiary hearing that was convened was well within

the strictures of § 636(b)(1)(B), as was the magistrate’s

recommendation to the district judge that judgment be

entered under Rule 52(c). See, e.g., McCarthy v. Bronson,

No. 03-2973 23

500 U.S. 136, 140-44 (1991); Goffman v. Gross, 59 F.3d 668,

670-672 (7th Cir. 1995).

Finally, Pinkston quibbles with what he sarcastically

characterizes as the district court’s “rubber stamping” of the

magistrate judge’s proposed findings of fact and recommen-

dations for disposition. We disagree.

Section 636(b)(1) of Title 28 requires that, where a party

files written objections to a magistrate judge’s proposed

findings or recommendations, “[a] judge of the court shall

make a de novo determination of those portions of the

report or specified proposed findings or recommendations to

which objection is made.” This means that while the statute

requires a “de novo determination” by the district court, a

“de novo hearing” is not required. United States v. Raddatz,

447 U.S. 667, 674 (1980). As the Supreme Court stated in

Raddatz, there is “nothing in the legislative history of the

statute to support the contention that the judge is required

to rehear the contested testimony in order to carry out the

statutory command to make the required ‘determination.’ ”

Id.

Here Judge Miller complied with both the spirit and the

letter of the statute by performing a “de novo review of

the transcript of the evidentiary hearing conducted on April

30 and May 1, 2003.” And, as evinced by his statement that

he had “no difficulty in reading the handwritten objections,”

it is clear that Judge Miller conducted a thorough review of

all objections and responses made by Pinkston to the

magistrate judge’s recommendation. See Goffman, 59 F.3d

at 671 (stating that “if following a review of the record the

district court is satisfied with the magistrate judge’s

findings and recommendations it may in its discretion treat

those findings and recommendations as its own”); see also

United States v. Larson, 760 F.2d 852, 857 (8th Cir. 1985);

Andrews v. Deland, 943 F.2d 1162, 1170-71 (10th Cir. 1991).

It is clear that Pinkston’s argument in this regard is

24 No. 03-2973

nothing more than a collateral attack on the magistrate’s

reasoning, masquerading as an assault on the district

court’s entirely acceptable decision to adopt the magistrate’s

opinion instead of conducting an evidentiary hearing on its

own. However, the law requires the district judge to do no

such thing. See Raddatz, 447 U.S. at 674.

Despite Pinkston’s suggestion that we should do other-

wise, Judge Miller is a most knowledgeable, experienced

and well-respected Article III judge and, without strong

evidence to the contrary, we will take him at his word when

he informs us that he has conducted a de novo review and

considered the plaintiffs objections in compliance with §

636(b)(1). See United States v. Severson, 49 F.3d 268, 273

(7th Cir. 1995); United States v. Rodriguez, 888 F.2d 519,

521-22 (7th Cir. 1989); see also Stokes v. Singletary, 952

F.2d 1567, 1576 (11th Cir. 1992); United States v. Remsing,

874 F.2d 614, 618 (9th Cir. 1989); cf. Orpiano v. Johnson,

687 F.2d 44, 47-48 (4th Cir. 1982) (holding that “[f]ailure to

review the evidence presented to the magistrate and failure

even to have a transcript filed with the district court . . .

was reversible error”); United States v. Tortora, 30 F.3d 334,

337 (2d Cir. 1994) (holding that: “By blindly adopting the

magistrate judge’s findings, apparently without ever having

received a report and recommendation, the district court

violated § 636(b)(1).”). To do otherwise would be contrary to

our very system of law. Accordingly, we refuse to accept

Pinkston’s invitation to inquire as to whether the district

court “rubber stamped” the magistrate’s opinion, and hold

that a district court’s assurance in a written order that

the court has complied with the requirements of 28 U.S.C.

§ 636 is sufficient, in all but the most extraordinary of

cases, to resist assault on appeal.

The decision of the district court is

AFFIRMED.

No. 03-2973 25

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-14-06