Jeffrey Leiser v. Karen Kloth

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-3378

JEFFREY D. LEISER,

Plaintiff-Appellee,

v.

KAREN KLOTH, Correctional Sergeant, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:15-cv-00768-slc — Stephen L. Crocker, Magistrate Judge.

____________________

ARGUED SEPTEMBER 5, 2018 — DECIDED AUGUST 1, 2019

____________________

Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit

Judges.

HAMILTON, Circuit Judge. Jeffrey Leiser was an inmate at

the Wisconsin Stanley Correctional Institution where Ser-

geant Karen Kloth was employed. Leiser, who was later diag-

nosed with Post Traumatic Stress Disorder while at Stanley,

alleged that beginning in 2013 he self-reported his disorder to

Kloth and “informed” her not to stand directly behind him

because doing so triggered his mental health symptoms. He

2 No. 17-3378

claims Kloth did not comply with his request but instead in-

creased the amount of time she stood behind him while pa-

trolling common areas. Leiser filed this suit against Kloth, her

supervisor, and the warden, claiming that Kloth’s behavior

violated the Eighth Amendment’s prohibition against cruel

and unusual punishment. The district court denied the de-

fendants’ motion for summary judgment after determining

they were not entitled to qualified immunity because Leiser

had a well-established right to be free from intentionally in-

flicted psychological harm. The defendants filed this interloc-

utory appeal, asking us to resolve the legal question of

whether they were, in fact, entitled to qualified immunity. We

reverse. Defendants are entitled to qualified immunity. At the

relevant times, it did not violate clearly established constitu-

tional law for non-medical correctional staff to refuse to pro-

vide a prisoner with what amounts to a medical accommoda-

tion that had not been ordered by medical staff and the need

for which was not obvious to a layperson.

I. Facts

We construe the evidence in the light most favorable to

Leiser as the non-moving party. See Lovett v. Herbert, 907 F.3d

986, 990 (7th Cir. 2018). At all times relevant, Jeffrey Leiser was

an inmate in the custody of the Wisconsin Department of Cor-

rections, housed at the Stanley Correctional Institution. Ser-

geant Karen Kloth was a correctional officer who worked in

Leiser’s unit. Kloth reported to Unit Manager Paula Stoudt

and in turn to Warden Reed Richardson.

Leiser was housed in Stanley’s mental health unit. He

struggled with numerous mental health issues, including at

times suicidal tendencies. Especially relevant to this case, the

psychological services staff eventually diagnosed Leiser with

No. 17-3378 3

Post Traumatic Stress Disorder (“PTSD”) stemming from a

sexual attack he suffered as a child. Leiser alleges that because

of this attack, when someone stands directly behind him, he

experiences flashbacks and may become angry, knock his

head against a wall, break out in a sweat, yell, scream, and

want to hurt whoever triggered the episode. Leiser told staff

in the Psychological Services Unit he was experiencing PTSD

symptoms as early as October 2014, but he was not diagnosed

with the disorder until some time in the spring of 2015.

While at Stanley, Leiser met regularly with staff from the

Psychological Services Unit. On March 30, 2015, he told his

treating clinician that he could not tolerate people standing

directly behind him and that his anxiety spiked when he was

waiting in line for medications in the Health Services Unit.

His psychiatrist then arranged for him to receive his medica-

tions directly from nursing staff, rather than after waiting in

line, to avoid this discomfort. Leiser did not receive any other

accommodation for his PTSD from the psychological staff.

Stanley’s Psychological Services Unit does not inform correc-

tional officers of an inmate’s clinical diagnosis if no accommo-

dation is required.

At some point in 2013, well before his diagnosis, Leiser no-

ticed that Sergeant Karen Kloth began standing behind him in

common areas, close enough, he says, to trigger his PTSD.

Leiser told Kloth that he suffered from PTSD and that he

could not tolerate anyone standing so close behind him. Kloth

responded by telling Leiser he would just have to “deal with

it” because she could stand where she wanted.

After this exchange, Leiser claims, Kloth increased the

amount of time she stood directly behind him. Leiser submit-

ted declarations from three other inmates who testified that

4 No. 17-3378

Kloth stood directly behind Leiser “every time” she worked

and that she would stand behind him until he started shaking

and sweating. Another inmate, Loren Leiser (Leiser’s brother)

told Kloth that she should not stand behind Leiser because of

his PTSD, explained his symptoms, and that it would be her

fault if he “snapped on her.” Leiser’s witnesses testified that

after Kloth stood behind Leiser, he would dump his tray and

retreat to his cell where he would shake, sweat, and talk to

himself. Leiser indicated he began skipping meals when

Kloth was on duty to avoid the risk of experiencing his PTSD

symptoms.

Notes from treating clinicians say that Leiser was having

problems with unit staff standing behind him, but they do not

indicate he ever identified it was Kloth. Leiser eventually

complained in writing about Kloth’s behavior to her supervi-

sors, Stoudt and Richardson. Though the written complaints

to Stoudt did not indicate Kloth was engaging in conduct

which triggered his PTSD, the letter he wrote to Warden Rich-

ardson specifically requested that Kloth be prohibited from

standing behind him for that reason. Neither Stoudt nor Rich-

ardson acted on these complaints.

Leiser sued under 42 U.S.C. § 1983 on November 30, 2015.

Among other claims, Leiser alleged that Kloth was intention-

ally causing him psychological harm by repeatedly attempt-

ing to trigger his PTSD, which he said violated the Eighth

Amendment’s prohibition against cruel and unusual punish-

ments. He also sued Stoudt and Richardson for failing to pro-

tect him from Kloth’s behavior.

Following a mandatory screening of the in forma pauperis

complaint under 28 U.S.C. § 1915A, the district court permit-

ted Leiser to proceed on the Eighth Amendment claim against

No. 17-3378 5

Kloth and failure-to-protect claims against Stoudt and Rich-

ardson. The defendants later moved for summary judgment.

They argued that Kloth’s behavior did not rise to the level of

cruel and unusual punishment, and even if it did, the evi-

dence did not establish that the defendants knew that Leiser’s

PTSD was triggered when Kloth stood behind him. Regard-

less, they argued, defendants were entitled to qualified im-

munity because if there was a constitutional violation, the le-

gal rule was not clearly established at the time of Kloth’s al-

leged conduct.

The court denied the defendants’ motion for summary

judgment, despite acknowledging it was not persuaded that

Leiser met the requirements discussed in Calhoun v. DeTella,

319 F.3d 936, 939 (7th Cir. 2003), that is, evidence that Kloth’s

actions were not done for a legitimate penological reason and

were instead intended to humiliate and inflict psychological

pain. The court held that a jury could find Kloth violated the

Eighth Amendment when she increased the amount of time

she spent standing behind Leiser after she learned of his

PTSD. Regarding qualified immunity, the district court found

that Leiser had a clearly established right to be free from in-

tentionally inflicted psychological harm at the time of these

events, making the defendants ineligible for qualified immun-

ity. This interlocutory appeal followed.

II. Analysis

A. Appellate Jurisdiction

We have jurisdiction to hear this appeal because “a district

court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 notwithstanding the

6 No. 17-3378

absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511,

530 (1985); see also, e.g., Johnson v. Jones, 515 U.S. 304, 319–20

(1995). We review the denial de novo, considering whether the

defendants were entitled to qualified immunity when view-

ing the facts in the light most favorable to Leiser as the non-

moving party. Howell v. Smith, 853 F.3d 892, 897 (7th Cir.

2017), citing Estate of Escobedo v. Bender, 600 F.3d 770, 778 (7th

Cir. 2010).

Leiser contends we do not have jurisdiction because this

appeal is really a “back-door effort” to contest facts, rather

than to resolve an issue of law. “[A]n appellant challenging a

district court’s denial of qualified immunity effectively pleads

himself out of court by interposing disputed factual issues in

his argument.” Gutierrez v. Kermon, 722 F.3d 1003, 1010 (7th

Cir. 2013); see also Gant v. Hartman, 924 F.3d 445, 451 (7th Cir.

2019) (dismissing officer’s appeal of denial of qualified im-

munity because his argument depended on disputed facts).

For purposes of this appeal, however, appellants

acknowledge that all issues of material fact must be resolved

in Leiser’s favor and reviewed in a light most favorable to

him. See Knox v. Smith, 342 F.3d 651, 657 (7th Cir. 2003) (de-

fendant is not generally permitted to appeal denial of a sum-

mary judgment that involves mixed question of law and fact,

“but where, as here, one side concedes the other’s facts as to

what happened, it is a question of law”).

Leiser argues that the appeal focuses on the disputed fact

of Kloth’s intent, not a legal question, because the operative

questions are whether Kloth stood behind Leiser knowing that

this could trigger his PTSD and if so, whether this rose to the

level of injury cognizable by the Eighth Amendment. Even

framing the questions this way, we have jurisdiction.

No. 17-3378 7

Appellants concede—and we assume—for purposes of sum-

mary judgment that Kloth did know her conduct could cause

Leiser psychological discomfort related to his PTSD. Whether

an injury rises to a level “cognizable by the Eighth Amend-

ment” is an issue of law that we have jurisdiction to decide.

This appeal does not depend on disputed facts, so we have

jurisdiction to hear this appeal. We now move on to whether

the defendants were entitled to qualified immunity.

B. Qualified Immunity

Qualified immunity is a doctrine that “protects govern-

ment officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or con-

stitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009), quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In other words,

qualified immunity does not shield a government official if

the alleged conduct violates a right that was clearly estab-

lished at the time. Thayer v. Chiczewski, 705 F.3d 237, 253 (7th

Cir. 2012).

To defeat a defense of qualified immunity, the plaintiff

must show two elements: first, that the facts show “a violation

of a constitutional right,” and second, that the “constitutional

right was clearly established at the time of the alleged viola-

tion.” Gill v. City of Milwaukee, 850 F.3d 335, 340 (7th Cir. 2017).

We have discretion to choose which of these elements to ad-

dress first. Pearson, 555 U.S. at 236. Because the second prong

is dispositive here, we will address only whether the right at

issue was clearly established under the circumstances the de-

fendant faced. Lovett v. Herbert, 907 F.3d 986, 991–92 (7th Cir.

2018), quoting Mason-Funk v. City of Neenah, 895 F.3d 504, 507–

08 (7th Cir. 2018).

8 No. 17-3378

While qualified immunity is an affirmative defense, once

raised, the burden shifts to the plaintiff to defeat it. Purvis v.

Oest, 614 F.3d 713, 717 (7th Cir. 2010). To meet his burden on

this prong, Leiser needed to “show either a reasonably analo-

gous case that has both articulated the right at issue and ap-

plied it to a factual circumstance similar to the one at hand or

that the violation was so obvious that a reasonable person

necessarily would have recognized it as a violation of the

law.” Howell, 853 F.3d at 897, quoting Chan v. Wodnicki, 123

F.3d 1005, 1008 (7th Cir. 1997). This requirement does not

mean Leiser had to find a case “on all fours” with the facts

here. Howell, 853 F.3d at 897, citing Hope v. Pelzer, 536 U.S. 730,

741 (2002). He did, however, need to show some settled au-

thority that would have shown a reasonable officer in Kloth’s

position that her alleged actions violated the Constitution.

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).

“To be clearly established, a right must be sufficiently clear

that every reasonable official would have understood that

what he is doing violates that right” meaning that “existing

precedent must have placed the statutory or constitutional

question beyond debate.” Reichle v. Howards, 566 U.S. 658, 664

(2012) (cleaned up). That is, the right must be clearly estab-

lished to a degree of specificity such that a reasonable govern-

ment official would be able to identify the violation with a

specific set of facts.

In deciding a question of qualified immunity, the level of

specificity at which the legal question is asked is often deci-

sive, and it is possible to be too general and too specific. See,

e.g., Thompson v. Cope, 900 F.3d 414, 421–22 (7th Cir. 2018). We

must determine whether a right is clearly established “in light

of the specific context of the case, not as a broad general

No. 17-3378 9

proposition.” Lovett, 907 F.3d at 992, quoting Mullenix, 136 S.

Ct. at 308. This requires us to consider “whether the violative

nature of particular conduct is clearly established.” Mullenix,

136 S. Ct. at 308, quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011). The Supreme Court has “repeatedly told courts … not

to define clearly established law at a high level of generality.”

Mullenix, 136 S. Ct. at 308, see also al-Kidd, 563 U.S. at 742

(“The general proposition, for example, that an unreasonable

search or seizure violates the Fourth Amendment is of little

help in determining whether the violative nature of particular

conduct is clearly established.”).

We first look to whether the Supreme Court or this circuit

has previously held that conduct analogous to the present

case violates the right at issue. Lovett, 907 F.3d at 992. The lack

of specific precedent is not necessarily fatal to a qualified im-

munity defense because the Supreme Court has recognized

that “officials can still be on notice that their conduct violates

established law … in novel factual circumstances.” Safford

Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377–78 (2009),

quoting Hope, 536 U.S. at 741–42 (no qualified immunity when

prison guards handcuffed inmate to hitching post for seven

hours without regular water or bathroom breaks for his dis-

ruptive behavior, despite his having already been subdued).

If no existing precedent puts the conduct beyond debate, we

next consider if this is one of the rare cases, like Hope, where

the state official’s alleged conduct is so egregious that it is an

obvious violation of a constitutional right. Abbott v. Sangamon

County, 705 F.3d 706, 723–24 (7th Cir. 2013) (no qualified im-

munity for police officer for excessive force claims where of-

ficer tased nonviolent misdemeanant who did not respond to

instructions to turn over after being tased a first time).

10 No. 17-3378

The district court determined that Leiser had “a clearly es-

tablished right to be free from intentionally inflicted psycho-

logical harm.” Leiser frames the question differently, as

“whether Kloth subjected Leiser to calculated harassment un-

related to prison needs.” Both of these statements are at too

high a level of generality. See Brosseau v. Haugen, 543 U.S. 194,

199–200 (2004) (remanding denial of summary judgment on

qualified immunity because court of appeals found fair warn-

ing in general tests regarding prohibition of shooting fleeing

suspects rather than the more “particularized” fact of shoot-

ing fleeing suspects “when persons in the immediate area are

at risk from that flight”).

As we see the case, the issue is whether it was clearly es-

tablished that Kloth was constitutionally required to accom-

modate Leiser’s specific and unique mental health need based

solely on his self-reporting and demands of other inmates, ab-

sent instructions from the medical staff.

“The Eighth Amendment prohibits unnecessary and wan-

ton infliction of pain, thus forbidding punishment that is ‘so

totally without penological justification that it results in the

gratuitous infliction of suffering.’” Calhoun v. DeTella, 319 F.3d

936, 939 (7th Cir. 2003), quoting Gregg v. Georgia, 428 U.S. 153,

173 (1976). This prohibition against cruel and unusual pun-

ishment of inmates includes both physical and psychological

harm. See Beal v. Foster, 803 F.3d 356, 357–58 (7th Cir. 2015)

(reversing dismissal of § 1983 claim against prison guard who

allegedly made remarks labelling a male inmate as homosex-

ual, allegedly causing inmate severe psychological harm due

to worry of increased likelihood of sexual assaults, thus mak-

ing it more than “simple verbal harassment”), quoting Wa-

tison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

No. 17-3378 11

Inmates have long had a clearly established right to be free

from intentionally inflicted psychological torment and humil-

iation unrelated to penological interests. Hudson v. Palmer, 468

U.S. 517, 530 (1984) (mentioning the Eighth Amendment pro-

tects against “calculated harassment unrelated to prison

needs”); King v. McCarty, 781 F.3d 889, 892 (7th Cir. 2015) (re-

versing dismissal; inmate plausibly alleged see-through

jumpsuit that exposed his genitals during transfer to new

prison had no penological purpose and only intended to hu-

miliate and inflict psychological pain in violation of Eighth

Amendment); Beal, 803 F.3d at 359 (jury could find correc-

tional officer’s verbal and nonverbal harassment was cruel

and unusual because it “may have made him a pariah to his

fellow inmates and inflicted significant psychological harm”);

Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009) (reversing

summary judgment for prison guards in light of inmates’ al-

legations of strip searches publicly conducted in cold room

with guards who did not change their latex gloves and made

demeaning comments to inmates; genuine dispute over

whether searches “were conducted in a harassing manner in-

tended to humiliate and cause psychological pain”). How-

ever, “not every psychological discomfort a prisoner endures

amounts to a constitutional violation.” Calhoun, 319 F.3d at

939.

Leiser argues that Kloth had a constitutional obligation to

modify her movements around the common area to avoid

standing directly behind Leiser after he informed her that this

proximity to him exacerbated his self-reported PTSD. How-

ever, none of the cases from this circuit he relies upon have

facts closely analogous to those here. Se Davis v. Wessel, 792

F.3d 793, 796 (7th Cir. 2015) (body restraints); Mays, 575 F.3d

12 No. 17-3378

at 649 (strip searches); Delaney v. DeTella, 256 F.3d 679, 681–82

(7th Cir. 2001) (conditions of confinement).

The cases Leiser cites from other circuits also fail to show

this right was clearly established. The only authority he points

to that deals with psychological harm rather than physical

harm or threats is OʹConnor v. Huard, 117 F.3d 12, 17 (1st Cir.

1997), where the First Circuit considered the denial of quali-

fied immunity under a plain error standard because the de-

fendant had failed to preserve the affirmative defense. There,

a jury found for the former pretrial detainee who had claimed

that a correctional officer deprived him of mental health med-

ication and intentionally triggered his anxiety attacks. Id. at

15. The district judge denied the officer’s motion for judgment

notwithstanding the verdict, where she asserted for the first

time that she was entitled to qualified immunity. The First

Circuit affirmed the verdict for the plaintiff because the officer

“never brought forward any evidence suggesting that her ac-

tions were objectively reasonable in light of [plaintiff’s] clearly

established due process right.” Id. at 17. Though O’Connor

presents closer facts than the other cases Leiser cites, it in-

volved the denial of access to prescribed medications, which

would clearly interfere with prescribed medical treatment. In

addition, the differences in procedural posture and standard

of review undermine his argument that the right at issue here

was clearly established at the time of Kloth’s conduct.

Because he does not provide an analogous case, we now

consider whether Leiser established that Kloth’s conduct was

so outrageous that no reasonable correctional officer would

have believed the conduct was legal. He did not meet this bur-

den. As noted above, in some “rare cases,” such as Hope v.

Pelzer, where the constitutional violation is “patently

No. 17-3378 13

obvious,” the plaintiffs may not need to cite closely analogous

cases because “widespread compliance with a clearly appar-

ent law may have prevented the issue from previously being

litigated.” Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir.

2000). For example, in Abbott v. Sangamon County, qualified

immunity did not apply despite the lack of analogous cases

because it was clearly “unlawful to deploy a taser in dart

mode against a nonviolent misdemeanant who had just been

tased in dart mode and made no movement when, after the

first tasing, the officer instructed her to turn over.” 705 F.3d

706, 732 (7th Cir. 2013); cf. Lovett, 907 F.3d at 993 (not “egre-

giously” or “obviously unreasonable” to assign a severely in-

toxicated pre-trial detainee a top bunk from which he fell and

died); Kemp v. Liebel, 877 F.3d 346, 353–54 (7th Cir. 2017) (qual-

ified immunity applies on Free Exercise claim where no anal-

ogous case identified and it was not egregious or unreasona-

ble for Jewish prisoners to be unintentionally denied religious

services for several months after transfer to a new prison).

At the time of Kloth’s conduct here, it was not clearly es-

tablished that she was constitutionally required to avoid

standing behind Leiser as a result of his self-reporting of a

pending (albeit eventual) diagnosis. Such conduct, if intended

to provoke a negative response from Leiser, may have been

unprofessional and unjustified, but the law did not make clear

that it amounted to cruel and unusual punishment. Leiser’s

claim here implies that prison staff have a constitutional obli-

gation to modify the way they do their jobs based solely on an

inmate’s assertion that their actions elicit extreme psycholog-

ical responses. We must recognize the risk that such a rule of

law, which would apply without orders from prison medical

staff, could create a real danger of inmates manipulating

14 No. 17-3378

correctional officers for purposes unrelated to their mental

health.

This would be an entirely different case if Leiser had been

diagnosed with PTSD and the medical staff had ordered cor-

rectional staff to provide an accommodation for Leiser that

Kloth ignored. Generally, non-medical staff of jails and pris-

ons must comply with medical directives, which includes

mental health accommodations. Mitchell v. Kallas, 895 F.3d

492, 499 (7th Cir. 2018) (“An absence of treatment is equally

actionable whether the inmate’s suffering is physical or psy-

chological.”); Arnett v. Webster, 658 F.3d 742, 752–53 (7th Cir.

2011) (refusal to provide inmate with prescribed medication

or to follow advice of specialists can violate the Eighth

Amendment); Ralston v. McGovern, 167 F.3d 1160, 1161–62

(7th Cir. 1999) (reversing summary judgment because non-

medical prison guard’s refusal to comply with physician’s

therapy decision could be cruel and unusual).

While the lack of an accommodation directive from a psy-

chiatrist should not be treated as permission to harass inmates

in any manner, it is not unreasonable for a non-medical prison

staff member to assume that a treating physician would have

ordered an accommodation if one was necessary. See Arnett,

658 F.3d at 755 (recognizing non-medical prison staff “will

generally be justified in believing that the prisoner is in capa-

ble hands” when relying on expertise of medical personnel);

Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (“As a prac-

tical matter, it would be unwise to require more of a nonmed-

ical staff member” than reliance on prison medical staff, as

“the law encourages non-medical security and administrative

personnel at jails and prisons to defer to the professional med-

ical judgments”).

No. 17-3378 15

Kloth is entitled to summary judgment because Leiser did

not establish that he had a clearly established constitutional

right to an accommodation of a self-reported mental diagno-

sis without confirmation from medical staff or existence of a

treatment plan. This conclusion means that defendants Stoudt

and Richardson are also entitled to summary judgment. See,

e.g., Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017)

(failure-to-intervene claims failed where plaintiff’s right to be

free from certain interrogation tactics was not clearly estab-

lished at the time).

With high numbers of inmates suffering from mental ill-

nesses, the scope of prison medical and non-medical staffs’

duties toward mentally ill prisoners is an issue we can expect

to face often. We understand that the relationships between

inmates and prison staff are not always the model of civility,

but it is essential that correctional staff comply with orders

from medical staff. Here there were no such orders, so Leiser

has not established that Kloth’s alleged conduct rose to an

Eighth Amendment violation beyond reasonable debate at

the time of her alleged conduct.

We REVERSE the district court’s denial of summary judg-

ment and REMAND with instructions to grant summary

judgment in favor of the appellants.