Daniel Schillinger v. Josh Kiley

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-2404

DANIEL A. SCHILLINGER,

Plaintiff-Appellant,

v.

JOSH KILEY, RANDY STARKEY,

and RICHARD MATTI,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 16-cv-529-wmc — William M. Conley, Judge.

____________________

ARGUED SEPTEMBER 25, 2019 — DECIDED APRIL 6, 2020

____________________

Before FLAUM, SYKES, and SCUDDER, Circuit Judges.

SYKES, Circuit Judge. Daniel Schillinger, a Wisconsin pris-

oner, was brutally assaulted by another inmate as the pris-

oners were walking back to their housing unit after

recreation. He suffered a fractured skull, broken teeth, cuts,

and other serious injuries. Schillinger sued three prison

guards under 42 U.S.C. § 1983 for violating his Eighth

Amendment rights by failing to protect him from the attack.

2 No. 18-2404

The district judge screened the complaint and permitted

Schillinger to proceed on a claim that the officers failed to

take preventive action after learning of hostility between

Schillinger and his attacker during the recreation period

shortly before the attack. The judge later ruled that

Schillinger had not exhausted his administrative remedies

on this claim and entered summary judgment for the de-

fendants.

On appeal Schillinger argues that the judge should have

gleaned from his complaint two additional factual grounds

for a failure-to-protect claim against the officers: that they

did not respond fast enough to an alarm about a medical

emergency on his unit once the attack was underway and

they stood by without intervening to stop the attack while it

was ongoing. He also challenges the judge’s exhaustion

ruling.

We reject these arguments and affirm. The judge did not

overlook plausible alternative factual grounds for the claim

against these defendants. And we find no fault with the

judge’s exhaustion ruling. Though Schillinger pursued a

complaint through all levels of the prison’s inmate-

complaint system, he never mentioned the claim he raised in

this litigation: that the three officers were aware of threaten-

ing behavior by the attacker in the recreation area before the

assault and failed to take steps to protect him.

I. Background

Schillinger was a prisoner at Wisconsin’s Secure Program

Facility at the time of the assault. 1 We take the following

1Schillinger was transferred to Racine Correctional Institution in August

of 2016.

No. 18-2404 3

factual allegations from his complaint, accepting them as

true for present purposes. On the morning of September 17,

2015, Schillinger was playing chess with inmate Diaz in the

recreation area in the prison’s Delta Unit. At about 10:05 a.m.

they were approached by another inmate named Terry, who

made threats and demanded that Schillinger buy canteen

items for him.

Correctional Officer Randy Starkey approached the

group and asked, “are you guys horseplaying or are you for

real?” Diaz told Officer Starkey everything was under

control. Officer Starkey signaled for assistance from Correc-

tional Officer Josh Kiley, who came over and asked the

inmates if they were going to fight. Diaz said, “no[,] it’s all

good.”

Recreation ended at about 10:15 a.m. As Schillinger start-

ed to walk back to his cell in Charlie Unit, Officers Starkey

and Kiley asked if he was going to be okay. Schillinger said

he didn’t know because Terry made threats and he did not

trust Terry. Shortly thereafter, an inmate named Clark in the

Delta Unit cellblock overheard Officer Starkey tell an uni-

dentified “John Doe” sergeant that he thought there was

going to be a “rumble.” A couple of minutes after overhear-

ing this conversation, Clark heard a radio alarm calling for a

medical response on Charlie Unit.

When Schillinger and Terry arrived back in Charlie Unit,

Terry attacked. At the time of the assault, there were “no

staff on the range,” and Terry beat Schillinger for approxi-

mately eight to ten minutes before help came. When “staff”

finally arrived, they did not immediately break up the fight

but simply said “stop” for one to two minutes and made no

effort to intervene until after Schillinger was knocked un-

4 No. 18-2404

conscious. He suffered a skull fracture, cuts to the face

requiring stitches, a cut on his elbow, a lost tooth and a

chipped tooth, possible permanent nerve damage on the side

of his mouth, and a bruised lung.

On September 27 Schillinger filed an offender complaint

with the prison’s inmate-complaint system regarding the

September 17 beating. He described his injuries and ques-

tioned why “there was no correctional officer on the range at

the time of the incident” and “why it took so long for them

to respond.” He did not name his attacker. He did not

identify Officers Starkey or Kiley or refer to the involvement

of an unnamed sergeant. He made no mention of threaten-

ing behavior by the attacker before the assault.

In the meantime, prison security officials and the Grant

County Sheriff’s Office commenced an investigation of the

beating. As a result, the complaint examiner saw no need for

a duplicative administrative investigation and dismissed

Schillinger’s grievance without further action. That decision

was affirmed on administrative appeal.

Schillinger then filed a pro se complaint in federal court

against Officers Starkey and Kiley, a John Doe sergeant, the

prison’s security director, and the warden seeking damages

under § 1983 for violation of his Eighth Amendment rights.

As required by the Prison Litigation Reform Act (“PLRA” or

“the Act”), 28 U.S.C. § 1915A, the judge screened the com-

plaint to identify facially plausible claims. He concluded that

the complaint stated an Eighth Amendment failure-to-

protect claim against Officers Starkey and Kiley based on the

allegations that they were aware of Terry’s threat against

Schillinger during recreation and took no steps to protect

him from the ensuing attack. The judge also identified a

No. 18-2404 5

failure-to-protect claim against a “Sergeant John Doe” based

on the allegation that inmate Clark overheard Officer

Starkey and the sergeant discussing a potential fight. The

judge dismissed the warden and the security director from

the suit because Schillinger did not allege that they were

personally involved in these events.

Sergeant John Doe was later identified as Sergeant

Richard Matti. Officers Starkey and Kiley and Sergeant Matti

moved for summary judgment, arguing that Schillinger

failed to exhaust his administrative remedies on the failure-

to-protect claim the judge had identified. The judge granted

the motion, explaining that Schillinger’s offender complaint

did not allege that the defendants were aware of Terry’s

threat and thus had reason to believe that Schillinger might

be attacked and failed to take preventive action. Rather, the

grievance questioned only why no staff were present on the

range where the assault took place and why it took so long

for staff to come to Schillinger’s aid after the attack began.

Schillinger appealed, still representing himself. We

struck the original briefs and recruited pro bono counsel to

assist him. 2

II. Discussion

With the benefit of pro bono representation, Schillinger

advances two arguments on appeal. First, he challenges the

judge’s screening order, arguing that the judge should have

permitted him to proceed on two additional factual grounds

for his failure-to-protect claim: that the defendants inade-

2 Attorneys David Feder and Meir Feder of Jones Day accepted the

representation and have ably discharged their duties. We thank them for

their assistance to their client and the court.

6 No. 18-2404

quately responded to the emergency medical alarm and

failed to intervene after arriving at the scene of the attack.

Second, he challenges the judge’s exhaustion ruling.

Both arguments rest on aspects of the PLRA. The Act re-

quires district courts to screen prisoner complaints and

“identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint … fails to state a

claim upon which relief may be granted.” 28 U.S.C.

§ 1915A(b)(1). At screening the judge must apply the stand-

ards for a motion to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, permitting claims to go

forward only to the extent that the prisoner has pleaded facts

to demonstrate that he has a plausible claim for relief.

Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012).

A claim is plausible when the complaint alleges enough

facts to draw the reasonable inference that the defendant is

liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff

must include adequate factual detail to lift his claims from

mere speculative possibility to plausibility. Id. A claim for

relief may not proceed merely because some set of facts can

be imagined that would entitle a plaintiff to relief. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 561–63 (2007). Pro se com-

plaints are construed more forgivingly than a pleading

prepared by a lawyer. Perez v. Fenoglio, 792 F.3d 768, 776 (7th

Cir. 2015). We review the judge’s screening order de novo,

accepting the complaint’s factual allegations as true and

drawing all reasonable inferences in the plaintiff’s favor. Id.

The judge permitted Schillinger to go forward on one

Eighth Amendment claim: a failure-to-protect claim against

Officers Starkey and Kiley and Sergeant Matti based on the

No. 18-2404 7

allegations that they failed to act to protect Schillinger after

they learned of Terry’s threat and the possibility of a rumble.

That ruling was unquestionably sound. A prison official

may be liable for one prisoner’s attack on another prisoner if

two conditions are met. First, there must have been a sub-

stantial risk of serious harm to the prisoner who was at-

tacked. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second,

the prison official must have acted with deliberate indiffer-

ence to the health or safety of the prisoner. Id. The judge

correctly concluded that Schillinger plausibly alleged that

these three officials were deliberately indifferent to a sub-

stantial risk of serious harm because they learned of the

threatening incident with Terry and failed to take steps to

protect him.

Schillinger argues that the judge overlooked additional

factual grounds for a failure-to-protect claim against the

defendants based on the complaint’s allegations about a

slow response to the emergency medical alarm and the

failure by staff to quickly intervene once they arrived at the

scene of the attack. We disagree. The allegations concerning

the alarm and the failure to break up the attack do not

support a plausible failure-to-protect claim against these

defendants.

As to the emergency alarm, the complaint contains a sin-

gle factual allegation: that inmate Clark heard an alarm radio

calling for a medical response on Charlie Unit a few minutes

after overhearing a conversation between Officer Starkey

and a John Doe sergeant about a possible rumble. The

allegations about inadequate intervention after the attack

began are similarly thin: that the complaint says only that

8 No. 18-2404

“staff” did not come for eight to ten minutes, and when they

did arrive, they waited too long to stop the assault.

These allegations do not provide a plausible alternative

factual basis for a different or additional failure-to-protect

claim against Officers Starkey or Kiley or Sergeant Matti.

The complaint says that all three officers were on duty in

Delta Unit, but the alarm Clark allegedly overheard reported

a medical emergency on Charlie Unit. Nothing in the com-

plaint suggests that they had a responsibility to leave their

posts and respond to an emergency in a different unit.

Moreover, no allegations place these officers at the scene of

the attack. Although Schillinger made other specific allega-

tions against these three officers, he did not allege that they

were among the “staff” that responded too slowly once the

attack was underway and stood idly by while the beating

continued. There is nothing in the complaint that would

support that inference.

Schillinger relies on Velez v. Johnson, but the circumstanc-

es in that case were far different. In Velez the plaintiff

claimed that he pushed an emergency call button in his jail

cell when his cellmate threatened him; he further alleged

that the defendant Johnson was the officer in charge of the

control station in his pod and was responsible for monitor-

ing and responding to emergency calls from inmates in their

cells, yet failed to take action to avert the brutal attack that

followed. 395 F.3d 732, 734–36 (7th Cir. 2005). That’s a far cry

from the allegations here, which place Officers Starkey and

Kiley and Sergeant Matti on duty in an entirely different unit

in a large prison and provide no factual basis from which to

infer that they even heard the medical alarm, had a duty to

respond, or were among the “staff” that arrived too slowly

No. 18-2404 9

and did too little to stop the attack. We find no flaw in the

judge’s screening order.

That brings us to the judge’s summary-judgment ruling,

which rests on a different requirement in the PLRA. The Act

provides that a prisoner may not bring a suit in federal court

challenging prison conditions “until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). The judge determined that Schillinger had not

exhausted the lone claim that survived screening. We review

exhaustion rulings de novo. Kaba v. Stepp, 458 F.3d 678, 681

(7th Cir. 2006).

The PLRA does not specify what a prisoner must do to

exhaust his administrative remedies. Those requirements are

found in the law establishing the relevant administrative

remedies: state law for state prisons and federal law for

federal prisons. Strong v. David, 297 F.3d 646, 649 (7th Cir.

2002). Because this case concerns conditions in a Wisconsin

prison, we look to the grievance procedures established by

Wisconsin law.

There is no dispute that Schillinger pursued a grievance

through all levels of the inmate-complaint system in a timely

fashion, receiving decisions at every stage. This exhaustion

dispute centers on a provision of the Wisconsin Administra-

tive Code that requires prisoners to “clearly identify the

issue” in their offender complaints. WIS. ADMIN. CODE DOC

§ 310.09 (2002) (amended 2018). The judge concluded that

Schillinger’s grievance did not clearly identify the failure-to-

protect claim at issue in this litigation; instead, it focused

entirely on the absence of correctional officers on the range

where the attack occurred and the slow response once the

attack was underway.

10 No. 18-2404

The regulation specifying that a prisoner must “clearly

identify the issue” in an inmate complaint is not more

specific about what it takes to satisfy this requirement. When

the applicable regulations provide little guidance regarding

the required contents of a prison administrative complaint,

we have held that an inmate’s complaint will suffice for

exhaustion purposes if it provides notice to the prison of

“the nature of the wrong for which redress is sought.”

Strong, 297 F.3d at 650.

This notice principle is grounded in the purposes of ex-

haustion under the PLRA. The exhaustion requirement

protects the prison’s administrative authority by giving it an

opportunity to correct its own mistakes before suit is filed

against it in federal court. Woodford v. Ngo, 548 U.S. 81, 89

(2006). In addition, exhaustion promotes efficiency because a

claim can generally be resolved much more quickly in an

administrative proceeding than in litigation in federal court.

Id. Accordingly, we’ve held that a prisoner satisfies the

exhaustion requirement when he gives a prison “notice of,

and an opportunity to correct, a problem.” Turley v. Rednour,

729 F.3d 645, 650 (7th Cir. 2013).

Schillinger’s offender complaint did not provide ade-

quate notice of the failure-to-protect claim at issue here. The

complaint begins by identifying the date and approximate

time of the attack: “On September 17, 2015, right after court-

yard in the morn[ing,] I was beat up pretty bad.” It then lists

Schillinger’s injuries. The next and final passage identifies

his core complaint against the prison:

I was wondering why there was no correctional

officer on the range at the time of the incident.

And why it took so long for them to respond to

No. 18-2404 11

my aid. I was also told this [on] Friday[,]

September 18, 2015[,] in the morn[ing] at the

hospital. By a correctional officer. He stated to

me[,] it sure took them awhile to respond to

you. If they would of responded right away, I

wouldn’t be in this position I’m in now. They

said it would take awhile for my injuries to heal

up.

That concludes the complaint. Officers Starkey and Kiley

are not mentioned. Nor is Sergeant Matti—or an unidenti-

fied sergeant, for that matter. The attacker is not identified,

and there’s no reference to an earlier confrontation between

Schillinger and the attacker, much less a previous threat. In

short, there are no allegations that any prison guards—even

unnamed guards—had reason to know in advance that an

attack might occur and failed to take appropriate measures

to prevent it.

Instead, Schillinger’s grievance raised two entirely differ-

ent problems: no guards were nearby when the attack

occurred, and the responding guards took too long to come

to his aid. This did not give the prison notice of the claim at

issue here, which concerns events preceding the attack and

conduct by officers who were not mentioned in the griev-

ance. Accordingly, the judge correctly concluded that

Schillinger failed to exhaust the single claim that survived

screening. Summary judgment for the defendants was

proper.

AFFIRMED