Del Raine v. Williford

MANION, Circuit Judge,

concurring.

Ronald Del Raine, a prisoner at the United States Penitentiary in Marion, Illinois, sued thirty-four employees of the Bureau of Prisons alleging various violations of his constitutional rights. While the amended complaint is disjointed, it appears that Del Raine alleged constitutional violations based on (1) the alleged cold conditions of confinement; (2) the propriety of, and method of, performing a rectal exam; (3) allegedly unnecessary X-rays; (4) the confiscation of property, including three dictionaries; (5) the refusal to deliver two publications (The Marionette and A New Iron Column); (6) a strip search and accompanying sarcastic comments; (7) the beating of a fellow inmate; and (8) the cumulative conditions of confinement. The amended complaint also alleged that five defendants were liable for supervising these alleged constitutional violations.

*1049 The district court dismissed the claims against twenty-four defendants for failure to effect service. The district court dismissed claims against eight additional defendants, finding that Del Raine’s complaint failed to adequately allege constitutional violations. Additionally, the district court granted partial summary judgment to defendant Willi-ford, finding that Williford had not violated Del Raine’s constitutional rights by refusing him access to two issues of the publication The Marionette. 1 The district court also granted summary judgment to another defendant, Dillow, on Del Raine’s claim concerning the propriety of a rectal exam. The district court, however, refused to grant summary judgment on Del Raine’s claim concerning the manner in which Dillow performed the rectal exam. This issue proceeded to trial, and at the close of evidence the district court directed a verdict in favor of Dillow, finding that Dillow had not performed the rectal exam in an unconstitutional manner.

Del Raine presents five issues on appeal: (1) whether the district court erred in dismissing claims against twenty defendants for failure to effect service; 2 (2) whether the district court erred in dismissing Del Raine’s Eighth Amendment claim concerning the alleged cold conditions of confinement; (3) whether the district court erred in dismissing Del Raine’s Eighth Amendment claim concerning the manner in which Dillow performed the rectal exam; (4) whether the district court erred in dismissing Del Raine’s claim for confiscation of dictionaries; and (5) whether the district court erred in dismissing claims against five supervisory defendants. 3

I. Failure to Effect Service

I concur with the court’s decision affirming the dismissal of defendants Brush, Deer, Denton, Gora, Edwards, Sansom, John Doe Guards, Sullivan, Clark, Morrison, Sively, Krajenta, Sheffer, Barker, Westenberger, Williams, John Doe No. 4, Pysher, Thompson, Pool, Trusty and Thomas pursuant to Rule 4(j).

Rule 4(j) provides that

[i]f a service of summons and complaint is not made upon a defendant with 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Fed.R.Civ.P. 4(j).

Del Raine failed to serve these defendants within 120 days of the filing of his amended complaint on November 4, 1985 and Del Raine’s only good cause argument is merit-less. Del Raine claims that good cause existed for his failure to serve the defendants within 120 days because it is the Marshal’s responsibility to effect service. Del Raine, however, did not provide the Marshal with copies of his amended complaint until April 12,1986, which was more than 120 days after he filed it on November 4, 1985. Therefore, the failure to effect service within 120 days cannot be blamed on the Marshal.

II. Eighth Amendment Cold Conditions of Confinement

The district court dismissed Del Raine’s Eighth Amendment claims concerning the cold conditions of confinement. Here, the court concludes that the district court incorrectly granted summary judgment on this issue. In doing so, the court notes that it is difficult to determine whether the district court dismissed the action under Rule *1050 12(b)(6) or under Rule 56, but nonetheless concludes that the district court granted summary judgment to defendants on this Eighth Amendment claim. I concur with the court that the district court’s decision concerning the Eighth Amendment cold conditions of confinement claims should be reversed, but conclude that the district court’s order is more appropriately reviewed as a 12(b)(6) dismissal. 4

An inmate who alleges an Eighth Amendment violation must show (1) that the deprivation is one of constitutional magnitude; and (2) that the officials in question acted with deliberate indifference. Hudson v. McMillian, — U.S. -, -, 112 S.Ct. 995, 999 , 117 L.Ed.2d 156 (1992); Wilson v. Setter, 501 U.S. 294, 296 , 111 S.Ct. 2321, 2323 , 115 L.Ed.2d 271 (1991). “An allegation of inadequate heating may state an eighth amendment violation.” Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir.1987). See Wilson, 501 U.S. at 303 , 111 S.Ct. at 2327 (allegations of a low cell temperature in combination with the failure to issue blankets may be sufficient to state an Eighth Amendment claim); Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir.1991) (there is a constitutional right of prison inmates to adequate heat). For the inadequate condition to be of constitutional magnitude, however, it must be an extreme deprivation; mere discomfort is not enough. Hudson , — U.S. at -, 112 S.Ct. at 1000 ; Wilson, 501 U.S. at 298 , 111 S.Ct. at 2324 (“The Constitution ... ‘does not mandate comfortable prisons’ ”) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 , 101 S.Ct. 2392, 2400 , 69 L.Ed.2d 59 (1981)).

In respect to the cold conditions, Del Raine alleges

Every few days I’m striped (sic) searched in my cell (notwithstanding the bitter cold resulting from the open window above my cell), cuffed behind my back, pulled backwards from my cell, put in an empty cell while cuffed, from fifteen to thirty minutes, ... This practice continues to the present time. On December 23, 1983 while the chill factor was minus 40 degrees to 50 degrees below zero, according to the radio weather reports, I was strip searched and placed in an empty cell ... No hats, jackets, or gloves were allowed, nor could we put a blanket over our cell bars to warm the cell. Many other days were also bitterly cold. Repeated requests to Unit Manager Deer, Associate Warden Keo-hane, and Warden Miller to close the windows and fix broken ones were futile.

Del Raine’s allegations are far from clear on the extremity of the cold. For example, Del Raine does not allege that the cell was bitterly cold. He also does not claim that he was denied clothing and blankets. In fact, Del Raine alleges that he was given blankets the day after he requested them. This goes against Del Raine’s claim. But “[a] complaint need not narrate all relevant facts or recite the law; all it has to do is set out a claim for relief.” Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963 (7th Cir.1992). Moreover, in “reviewing the grant of a motion to dismiss, we must take as true all well-pleaded factual allegations and make all possible inferences in favor of the plaintiff.” Johnson v. Martin, 943 F.2d 15, 16 (7th Cir.1991). Furthermore, “pro se complaints are to be liberally construed....” Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378 (7th Cir.1988); Haines v. Kerner, 404 U.S. 519, 520 , 92 S.Ct. 594, 595 , 30 L.Ed.2d 652 (1972) (“the allegations of the pro se complaint, ... we hold to less stringent standards than formal pleadings drafted by law-yers_”).

*1051 Del Raine’s allegations create a possible inference that he was routinely placed in a cell with unreasonably low temperatures and without adequate clothing. Even though the allegations can also be interpreted as only constituting mere discomfort, “[w]hether language in a complaint ‘can be interpreted’ as deficient is immaterial’ ” Hrubec, 981 F.2d at 963 . Rather, a complaint should not be dismissed “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Johnson, 943 F.2d at 16 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99, 101-102 , 2 L.Ed.2d 80 (1957)). Applying the standard for 12(b)(6) dismissal and the leniency required of pro se litigants, it is conceivable that Del Raine will be able to prove a set of facts sufficient to demonstrate that the cold was of “constitutional magnitude.”

This is still not enough for an Eighth Amendment violation, however; Del Raine must also allege that the prison official was “deliberately indifferent.” Farmer v. Brennan, — U.S. -, -, 114 S.Ct. 1970, 1977 , 128 L.Ed.2d 811 (1994). “Deliberate indifference” requires that “the official knows of and disregards an excessive risk to inmate health or safety-” Id. — U.S. at -, 114 S.Ct. at 1979 .

Again, Del Raine’s complaint is disjointed. With respect to the cold conditions, Del Raine merely alleges that “[rjepeated requests to Unit Manager Deer, Associate Warden Keohane, and Warden Miller to close the windows and fix broken ones were futile.” Del Raine, however, also alleges more broadly that the defendants are “responsible for establishing policies and procedures authorizing the violations stated in this complaint, for ordering them, for supervising them, for not investigating complaints about them, and ultimately for not preventing them....” Under the liberal standard of 12(b)(6), read in tandem with the liberal standard governing pro se litigants, “deliberate indifference” is sufficiently alleged.

Del Raine’s claims may, however, go quickly on summary judgment because of these problems. For example, if the defendants irrefutably demonstrate that the cell temperature was maintained at a reasonable level, or that sufficient clothing and blankets were provided, or that an accidental mechanical problem caused the cold, summary judgment will be appropriate. See e.g., Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.1992) (“If the harm is remote rather than immediate, or the officials don’t know about it or can’t do anything about it, the subjective component [of deliberate indifference] is not established and the suit fails.”); Wilson, 501 U.S. at 300 , 111 S.Ct. at 2325 (“[I]f a prison boiler malfunctions accidentally during a cold winter, an inmate would have no basis for an Eighth Amendment claim, even if he suffers objectively significant harm.”). Nonetheless, dismissal at this point was improper.

III. Eighth Amendment Claim Concerning the Method of Performing a Rectal Exam

Del Raine also asserts an Eighth Amendment claim against Dillow, contesting the manner in which Dillow performed a rectal exam. The district court directed a verdict in Dillow’s favor on this Eighth Amendment claim. The court affirms the directed verdict. In affirming the district court, however, we need not reiterate nor give credibility to Del Raine’s argument that “forced digital rectal examinations [should] be ended.” Opn. at 33. The continued use of these examinations is not before the court. We also need not consider whether the Fourth Amendment is implicated because Del Raine has not asserted any Fourth Amendment claim. We furthermore need not consider the viability of Del Raine’s claim that the Eighth Amendment protects against “psychological harm” because no reasonable jury could have concluded that Dillow performed the rectal exam with deliberate indifference. See Anderson v. Gutschenritter, 836 F.2d 346, 348 (7th Cir.1988). I therefore concur only in the affirmance of the directed verdict.

IV. Bivens Action for Loss of Property

The district court dismissed Del Raine’s Bivens action against Whitaker, Walker and Moralez for their alleged unconstitutional confiscation of property because Del Raine did not first file a Federal Tort Claims Act *1052 action. The district court applied the same rationale to dismiss all other alleged property losses. On appeal, Del Raine asserts that “[t]he only lost property issue to survive dismissal for failure to effect service was against Correctional Officer David Whitaker.” 5 I concur with this court’s decision affirming the dismissal of the Bivens action based on allegedly unconstitutional property deprivations.

Del Raine specifically alleges that “[a] dictionary was taken from me in 1972. Two more dictionaries were taken from me in October, November, 1983....” Del Raine could have attempted to obtain relief for these alleged property losses by bringing a Federal Tort Claims Act action. See Sellers v. United States, 902 F.2d 598 (7th Cir.1990). Where an adequate post-deprivation remedy exists, due process is not offended. Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 536 , 104 S.Ct. 3194, 3205 , 82 L.Ed.2d 393 (1984). 6 Therefore, no due process violation occurred and no constitutional violation underlies Del Raine’s Bivens claim. Accordingly, I conclude that the district court correctly dismissed Del Raine’s Bivens action against Whitaker.

V. Supervisory Liability

The district court dismissed Del Raine’s claims against Miller, Carlson, Williford, Keohane and Lamar for supervisory liability concluding that defendants, who are supervisors, cannot be held liable in a Bivens action under the doctrine of respondeat superior. Lojuk v. Quandt, 706 F.2d 1456, 1468 (7th Cir.1983). While supervisors cannot be held liable under the doctrine of respondeat superior, they can be liable for the conduct of their subordinates if they were personally involved in that conduct. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988). A superior may be personally involved by formulating and directing an unconstitutional policy, Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir.1986), or by knowing about unconstitutional “conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference.” Jones, 856 F.2d at 992 .

Del Raine alleged in his complaint that the supervisory staff is “responsible for establishing policies and procedures authorizing the violations stated in this complaint, for ordering them, for supervising them, for not investigating complaints about them, and ultimately for not preventing them....” In his brief, Del Raine argues that the supervisors could be liable for either establishing unconstitutional policies or for being deliberately indifferent to their subordinates’ unconstitutional conduct, as alleged in the complaint. Del Raine’s complaint alleged numerous purported constitutional violations, including claims based on: (1) the alleged cold conditions of confinement; (2) the propriety of, and method of, performing a rectal exam; (3) unnecessary X-rays; (4) the confiscation of property; (5) the refusal to deliver two publications (The Marionette and A New Iron Column); (6) a strip search and accompanying sarcastic comments; (7) the beating of a fellow inmate; and (8) the cumulative conditions of confinement. The district court dismissed all of these claims, concluding that the allegations were insufficient to state a constitutional violation. On appeal, Del Raine attacks only the district court’s decision concerning the cold conditions of confinement, the rectal exam, and the confiscation of dictionaries. Del Raine has therefore waived any objection to the dismissal of these other claims. The court has rejected all of Del Raine’s claims with the exception of the cold conditions of confinement claim. Therefore, the only possible underlying constitutional violation for which supervisory liability may exist concerns the cold conditions of confinement.

*1053 The court concludes that the claims of supervisory liability based on the cold conditions of confinement against Miller and Keo-hane are redundant because Del Raine alleges an Eighth Amendment violation on the same basis. I agree. Supervisory liability, in this case, could only be based on the alleged deliberate indifference to the cold conditions of confinement. This is identical to Del Raine’s Eighth Amendment claim against Miller and Keohane. Thus, I concur with the court’s decision concerning Miller and Keohane’s supervisory liability. I also concur with the court’s decision affirming the dismissal of defendants-appellees Carlson, Williford and Lamar, against whom Del Raine also asserted claims of supervisory liability, because Del Raine’s complaint fails to specifically tie these defendants to the alleged unconstitutional cold conditions of confinement.

VI. Conclusion

For the foregoing reasons, I concur with the court’s decision that the only claims which should remain are Del Raine’s Eighth Amendment cold conditions of confinement claims against Keohane and Miller.

. This court reversed the partial denial of Willi-ford's motion for summary judgment concerning the publication A New Iron Column in Del Raine v. Williford, 952 F.2d 405 (7th Cir.1992).

. The district court dismissed twenty-four defendants for failure to effect service. Del Raine, however, does not appeal the dismissal of four of the defendants because they were listed as John Does and, therefore, not adequately named.

.On appeal, Del Raine also requests that we "provide a framework for the district court's fair disposition of this case....” The court, apparently finding the request meritless, does not address this issue. I also find Del Raine's request without merit.

. The confusion over the categorization of the motion occurs because the defendants presented the motion as a Motion to Dismiss or in the Alternative Motion for Summary Judgment and Del Raine presented an affidavit, of sorts, in opposition to the motion. Notwithstanding this characterization, in granting the motion, the district court's order does not rely on anything outside of the pleadings. Moreover, the order is framed in terms of dismissal, not summary judgment. For these reasons, I conclude that the district court’s order is more appropriately considered as a Rule 12(b)(6) dismissal. See First Interstate Bank of Nev. v. Chapman & Cutler, 837 F.2d 775 , 777 (7th Cir.1988) (rejecting appellants’ contention that the motion to dismiss was converted to a motion for summary judgment because the appellant failed "to point to any matters outside the pleadings that the district court considered with respect to the dismissal for failure to state a claim").

. The court accepts Del Raine's assertions, but Del Raine's claims against Walker and Moralez also survived dismissal for failure to effect service. Nonetheless, because Del Raine only challenges dismissal of his claim against Whitaker, he has waived any objection to the dismissal of Walker and Moralez.

. To the extent that Del Raine is objecting to the classification of dictionary as a non-law book, I conclude that this classification is not arbitrary. Therefore, a due process claim based on this classification must fail. See e.g., Caldwell v. Miller, 790 F.2d 589, 609 (7th Cir.1986).