Darrin Gruenberg v. Debra Gempeler

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3391

D ARRIN G RUENBERG ,

Plaintiff-Appellant,

v.

D EBRA G EMPELER, Captain, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-CV-00455—William C. Griesbach, Judge.

A RGUED A PRIL 4, 2012—D ECIDED S EPTEMBER 26, 2012

Before E ASTERBROOK, Chief Judge, and F LAUM and

M ANION, Circuit Judges.

M ANION, Circuit Judge. While incarcerated for

burglary, Darrin Gruenberg seized a set of keys from a

prison security guard and swallowed them. He was

taken to a hospital, where an x-ray showed that the

keys were lodged in his abdomen. A physician told the

prison officials that Gruenberg would probably pass

the keys naturally within five days. They returned him

2 No. 10-3391

to the prison and kept Gruenberg naked and in

restraints for five days until he passed the keys. After

five days, Gruenberg had not yet passed them and

surgery was needed to remove them. Gruenberg sued

the officials, claiming they violated his Eighth Amend-

ment right to be free from cruel and unusual punishment

by keeping him restrained for five days. The district

court granted summary judgment in favor of the defen-

dants, and because the officials have qualified im-

munity, we affirm.

I.

On April 19, 2006, a security officer at Waupun Cor-

rection Institution (“Waupun”) was administering med-

ication to a prisoner, Darrin Gruenberg, 1 when

Gruenberg pulled the officer’s arm inside his cell and

grabbed the officer’s key ring. The key ring held three

keys: a handcuff key, a key to activate cell doors, and a

key for the padlock on waist restraints. The officer

ordered Gruenberg to return the keys, but Gruenberg

exclaimed, “watch this,” and proceeded to place each

key into his mouth and then swallow each one.

This set off a security alert in the prison, and the

warden was immediately notified. Gruenberg was

1

Gruenberg began serving a sentence for burglary in 1999.

Since first entering the Wisconsin Department of Corrections,

he has accumulated more than 230 misconduct reports at

seven different facilities. See Gruenberg v. Schneiter, 474

Fed. Appx. 459 (7th Cir. 2012).

No. 10-3391 3

taken to the emergency room at Waupun Memorial

Hospital for x-rays to determine the location of the keys.

The x-ray confirmed that they were in his abdomen. The

physician who treated Gruenberg believed that the

keys would pass through his system within five days

if Gruenberg took medication to help them pass.

Gruenberg agreed to take the medication, and was re-

turned to Waupun.

The warden, the prison’s medical staff, and the

prison’s security staff developed a protocol for Gruen-

berg until the keys passed through his system. Gruenberg

was placed in Waupun’s Health and Segregation

Complex (“HSC”), the unit that houses inmates with

pending disciplinary hearings for rule violations, who

have been found guilty of rules violations, or who are

in administrative confinement. During his confinement

in the HSC, which lasted five days, he was kept naked

and restrained for approximately 22 to 23 hours per

day. Specifically, Gruenberg was restrained in a chair

during the day for twelve hours, and restrained to a

bed for twelve hours during the evening.2 The prison

officials thought it was necessary to keep Gruenberg

restrained to prevent him from re-swallowing the keys

2

Gruenberg was restrained with RIPP restraints, which are

polypropylene belts approximately two inches wide. They are

adjusted with Velcro closures. The restraints were placed

around Gruenberg’s upper chest, wrists, thighs, and legs.

4 No. 10-3391

after he had passed them.3 Twice per shift, on the first

and second shifts, Gruenberg was released from the

chair or bed and allowed to walk for 30 minutes.

During the five-day period, Gruenberg complained of

being cold and repeatedly asked for a blanket. 4 This

request was denied because, the prison officials asserted,

a blanket would restrict the view of security staff who

monitored Gruenberg to ensure he was breathing. The

prison staff also thought it was necessary to monitor

any possible expulsion of the keys from Gruenberg, as

one of the keys he swallowed was a master key that

would open any restraint used in the prison and

another key could open any cell door in the prison.

Gruenberg was fed “nutri-loaf” (a sort of nutritional

food loaf which does not require utensils to eat) while

restrained, and was denied permission to brush his

teeth or wash his hands (but was permitted to shower

once). Gruenberg also complained that he was forced to

lie in his own feces on two occasions, despite the offi-

cials’ assertion that Gruenberg was allowed to use

the bedpan and urinal whenever he asked to do so.

The security staff checked on Gruenberg every

15 minutes while he was restrained, and nurses from the

3

This has actually happened. See, e.g., Malone v. Oklahoma, 168

P.3d 185, 213 (Okla. Crim. App. 2007) (an inmate who secretly

brought a key into jail by swallowing it retrieved it from his

feces after passing it and then swallowed it again).

4

The record shows that the indoor cell temperatures of the

area in which Gruenberg was restrained varied between

72 degrees and 77 degrees during the five-day period.

No. 10-3391 5

prison’s Health Services Unit checked his condition

every four hours. The HSC’s clinical staff also saw

him regularly. All told, during the five-day period

Gruenberg was restrained he was checked by nurses

31 times and assessed by the clinical staff nine times.

He was also visited by the Waupun Psychological

Services Staff each day, who noted in several reports

that Gruenberg was frustrated by the situation but re-

mained cooperative.

By April 24 (the fifth day), Gruenberg was experi-

encing pain in his lower spine, tailbone, buttocks, and

joints. He developed cuts and raw skin on his wrists

and ankles from the restraints. He was taken to the

hospital for another x-ray, which revealed that the

keys had not moved from his abdomen. The prison

staff then determined that Gruenberg no longer needed

to be restrained because it was unlikely that he would

be able to pass the keys naturally. He was placed in a

“dry cell” in the prison’s Health Services Unit (a dry

cell being one in which the water has been turned off

so that the toilet does not flush). The health services

staff could monitor Gruenberg in this cell and, being

isolated, it was impossible for Gruenberg to pass the

keys to another inmate if he were to expel them natu-

rally. Additional security staff were assigned to sit outside

Gruenberg’s cell to monitor his bowel movements to

determine if the keys passed.

The keys did not pass, and on April 26, Gruenberg

was again taken to the hospital where he underwent an

endoscopy and colonoscopy to remove the keys. The

6 No. 10-3391

endoscopy procedure successfully removed two of the

keys, but the third key (the padlock key) remained in

his body. Finally, on May 4, Gruenberg passed the re-

maining key naturally.

Gruenberg filed a pro se suit against some 25 staff

members and officials at Waupun on May 5, 2009,

asserting that the defendants violated his Eighth and

Fourteenth Amendment rights under 42 U.S.C. § 1983.

Gruenberg also filed a motion requesting the appoint-

ment of counsel. On August 24, 2009, the district court

denied Gruenberg’s request for counsel, finding that

Gruenberg demonstrated his “ability to petition this

court for redress of his grievances.” On December 17,

2009, the defendants filed a motion for summary judg-

ment, and on September 30, 2010, the district court

granted summary judgment in favor of the defendants

on all claims. The district court ruled that a trier of

fact could find that Gruenberg’s Eighth Amendment

rights were violated, but held that the doctrine of

qualified immunity shielded the defendants from suit.

Gruenberg’s Fourteenth Amendment procedural due

process claim was dismissed on the grounds that it was

“better conceptualized under the Eighth Amendment,”

see Bowers v. Pollard, 345 Fed. Appx. 191, 196 (7th Cir.

2009), not the Fourteenth Amendment. Gruenberg ap-

pealed in February 2011, and in June 2011 we determined

that counsel should be appointed to represent Gruen-

berg on appeal. We issued an order striking the previously-

filed briefs, and Gruenberg, now represented by counsel,

filed his appeal in November 2011.

No. 10-3391 7

II.

We review the district court’s grant of summary judg-

ment de novo. Int’l Union v. ZF Boge Elastmetall LLC, 649

F.3d 641, 646 (7th Cir. 2011). In considering the district

court’s grant of summary judgment, we construe all

facts and draw all inferences in favor of Gruenberg,

and will affirm if “the movant shows that there is no

genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Id.

Gruenberg argues that because he was kept

immobilized, naked, cold, and in pain for five days, the

defendants deprived him of basic human needs and

violated his clearly established rights under the Eighth

Amendment. The defendants counter that the novelty of

Gruenberg’s situation and his past history of being a

difficult prisoner necessitated restraining Gruenberg,

that the unique circumstances presented by Gruenberg’s

situation demonstrate that none of the defendants

could have been on notice that they were violating

a clearly established constitutional right, and that the

district court properly found that none of the defendants

acted with deliberate indifference to Gruenberg’s needs.

Thus, they argue, the district court correctly applied

qualified immunity.

We review the validity of a qualified immunity defense

de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). Quali-

fied immunity shields government officials from

liability under Section 1983 “for actions taken while

performing discretionary functions, unless their conduct

violates clearly established statutory or constitutional

8 No. 10-3391

rights of which a reasonable person would have

known.” Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th

Cir. 2000). It protects “all but the plainly incompetent

or those who knowingly violate the law. . . . If officers of

reasonable competence could disagree on the issue [of

whether or not an action was constitutional], immunity

should be recognized.” Malley v. Briggs, 475 U.S. 335, 341

(1986). To defeat a claim of qualified immunity, Gruenberg

must show that the defendants violated a constitutional

right and demonstrate that the right in question was

clearly established at the time of the alleged violation.

Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

Thus, when analyzing a qualified immunity defense,

courts consider whether the alleged facts demonstrate

a constitutional violation, and whether the constitu-

tional right was clearly established. Pearson v. Callahan,

555 U.S. 223, 232 (2009). A constitutional right is clearly

established when “it would be clear to a reasonable

officer that his conduct was unlawful in the situation

he confronted.” Saucier, 533 U.S. at 202; see also Estate

of Escobedo v. Bender, 600 F.3d 770, 779 (7th Cir. 2010)

(“For a constitutional right to be clearly established,

its contours must be sufficiently clear that a reasonable

official would understand that what he is doing

violates that right.”) (quotations omitted).

Gruenberg claims that the defendants violated his

constitutional right to be free from cruel and unusual

punishment. Specifically, he argues that when the de-

fendants restrained him naked for five days, they

deprived him of basic human needs and thus violated

No. 10-3391 9

his clearly established rights under the Eighth Amend-

ment. To defeat the defense of qualified immunity,

Gruenberg must present evidence from which the finder

of fact could conclude that the conditions of his confine-

ment resulted in “the denial of the minimal civilized

measure of life’s necessities,” and that the defendants

were “deliberately indifferent” to the conditions in

which he was held. Townsend v. Fuchs, 522 F.3d 765, 773

(7th Cir. 2008) (citations omitted); see also Estelle v. Gamble,

429 U.S. 97, 104 (1976) (“deliberate indifference” to a

prisoner’s serious medical needs is cruel and unusual

punishment). The Eighth Amendment proscribes condi-

tions that “involve the wanton and unnecessary inflic-

tion of pain.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

The Supreme Court has held, however, that “[n]ot

every governmental action affecting the interests or well-

being of a prisoner is subject to Eighth Amendment

scrutiny . . . .” Whitley v. Albers, 475 U.S. 312, 319 (1986).

Indeed, “conduct that does not purport to be punish-

ment at all must involve more than ordinary lack of

due care for the prisoner’s interests or safety. . . . It is

obduracy and wantonness, not inadvertence or error

in good faith, that characterize the conduct prohibited

by the Cruel and Unusual Punishments Clause . . . .” Id.

Even if we were to find, at least in some context, that

the conditions under which Gruenberg was confined for

five days could have amounted to cruel and unusual

punishment, the defendants here are entitled to

qualified immunity. As Judge Griesbach reasoned in his

opinion, “[t]his case presents a classic situation in which

the doctrine [of qualified immunity] is required to shield

10 No. 10-3391

officials acting in good faith in responding to a unique

situation that involved both inmate health and prison

security.” While the condition in which Gruenberg

was held was undoubtedly uncomfortable, there is no

evidence in the record that demonstrates that any

member of the prison staff showed “deliberate indif-

ference” to Gruenberg’s health or safety. In fact, the

record shows otherwise—Gruenberg was monitored

constantly to ensure that he was not in danger, and was

visited 31 times by nurses and nine times by the

prison’s clinical staff. The prison’s psychological staff

also visited Gruenberg several times to check on his

mental health. As Judge Griesbach rightly noted, such

frequent medical and mental health monitoring is incon-

sistent with claims that the defendants intentionally

or recklessly subjected Gruenberg to cruel and unusual

punishment.

Furthermore, instead of forcing Gruenberg to undergo

immediate surgery to remove the keys (a decision

which could have raised more serious Eighth Amend-

ment concerns than presented here), the defendants

relied on the advice of a physician who thought that

Gruenberg would pass the keys within five days. And

while keeping Gruenberg in restraints for five days ulti-

mately proved ineffective in light of the fact that he

had two of the keys removed later via a colonoscopy

and the third passed naturally while he was held unre-

strained in a dry cell, qualified immunity protects deci-

sions made in the moment, when the benefit of hindsight

No. 10-3391 11

is not available.5 As we have previously held, qualified

immunity depends “upon all the circumstances as they

reasonably appeared to the official at the time the chal-

lenged conduct took place.” Crowder v. Lash, 687 F.2d

996, 1006-07 (7th Cir. 1982).

Thus, the defendants here faced what Judge Griesbach

called an “unprecedented breach of security”: an excep-

tionally disruptive prisoner with over 230 documented

citations for misconduct who stole and then swallowed

three critical security keys.6 The potential security prob-

lems this could cause are numerous, and the defendants

had to ensure that Gruenberg would not pass the keys

only to re-swallow them. While a less disruptive

prisoner may not have merited such measures, Judge

Griesbach rightly pointed out that the defendants here

were in “uncharted waters” and that the Eighth Amend-

ment “does not provide a clear roadmap as to how

5

While our analysis here focuses on qualified immunity, we

note that the Supreme Court rejected a post-hoc reasonableness

approach that would deem acts as cruel and unusual punish-

ment due to the fact that they appear to have been unneces-

sary in hindsight. See Whitley, 475 U.S. at 319 (“The infliction of

pain in the course of a prison security measure, therefore,

does not amount to cruel and unusual punishment simply

because it may appear in retrospect that the degree of force

authorized or applied for security purposes was unreasonable,

and hence unnecessary . . . .”).

6

This is not the first time Gruenberg has attempted to steal a

guard’s keys. See Gruenberg v. Schneiter, 474 Fed. Appx. 459,

460 (7th Cir. 2012)

12 No. 10-3391

prison staff must treat an inmate who has swallowed a

set of keys.” 7 Furthermore, there is no evidence that

the defendants acted with deliberate indifference or

recklessness towards Gruenberg’s health.8 Qualified

immunity is intended to shield officials from liability

when they exercise judgment, and here they exercised

that judgment when dealing with a difficult prisoner in

a unique situation. For those reasons, we affirm the

district court’s grant of qualified immunity.

Gruenberg also raises a procedural due process claim

under the Fourteenth Amendment, arguing that he has

7

The district court also raises an interesting point: Gruenberg’s

situation involved more than 25 members of the prison staff,

none of whom evidently thought the protocol developed for

handling Gruenberg was unreasonable. While not dispositive,

the fact that so many individuals found Gruenberg’s treat-

ment to be reasonable seriously undercuts Gruenberg’s claim

that a reasonable person would have been aware that this

conduct violated Gruenberg’s clearly established consti-

tutional rights.

8

While the defendants have qualified immunity, we hasten to

note that the confinement and treatment of Gruenberg was not

“punishment,” let alone cruel and unusual punishment. The

only thing unusual here was Gruenberg’s extreme behavior:

he grabbed a guard’s arm, pulled it through the bars of his cell,

seized the guard’s key ring, said “watch this,” and then swal-

lowed the keys. This was obviously a serious security problem,

and was exacerbated by Gruenberg’s extensive history of

misbehavior. However, in a different setting, with a less

troublesome prisoner, keeping a prisoner in near-constant

restraints, naked, in a cell under continual observation might

constitute cruel and unusual punishment.

No. 10-3391 13

a liberty interest in avoiding being held in restraints

for five days and that the defendants unconstitutionally

deprived him of that interest when he was restrained

without notice or an opportunity to be heard. In essence,

Gruenberg argues that his restraint was punishment

for swallowing the keys, and that he was deprived of

the right to have a hearing before he was placed in re-

straints. The record is devoid of any evidence to

support this claim, and in fact the record entirely

supports the defendants’ contention that placing

Gruenberg in restraints was solely out of a concern

for security.

Furthermore, we have found only two instances in

which the Fourteenth Amendment’s due process clause

created a liberty interest in the context of a prison

sentence: a transfer to a mental hospital, see Vitek v.

Jones, 445 U.S. 480, 493 (1980), and the involuntary ad-

ministration of psychotropic drugs, see Washington v.

Harper, 494 U.S. 210, 221-22 (1990). Neither is implicated

here, and we have previously held that claims

such as those raised by Gruenberg here “are better con-

ceptualized under the Eighth Amendment.” Bowers, 345

Fed. Appx. at 196. Thus, we affirm the district court’s

grant of summary judgment in favor of the defendants

on Gruenberg’s procedural due process claim.

Gruenberg also argues that he should be allowed to

advance claims against the defendants under the Fourth

Amendment and under the Fourteenth Amendment

substantive due process clause. However, Gruenberg

mentions these arguments for the first time on appeal. He

14 No. 10-3391

concedes that he did not argue these issues because the

district court refused to appoint counsel (see below).

Nevertheless, “(i)t is a well-settled rule that a party op-

posing a summary judgment motion must inform the

trial judge of the reasons, legal or factual, why summary

judgment should not be entered. If it does not do so, and

loses the motion, it cannot raise such reasons on ap-

peal.” Domka v. Portage County, Wis., 523 F.3d 776, 783

(7th Cir. 2008) (quotations omitted); see also Arendt v.

Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir. 1996) (issues

that are not raised in the district court in response to a

motion for summary judgment are waived on appeal).

Furthermore, as we noted above, Gruenberg’s claims

are better addressed under the Eighth Amendment.

Thus, Gruenberg’s Fourth Amendment and Fourteenth

Amendment substantive due process claims are barred.

Finally, Gruenberg argues that the district court abused

its discretion when it denied Gruenberg’s request for

counsel. We review a district court’s decision to deny

the appointment of counsel under 28 U.S.C. § 1915(e)(1)

for an abuse of discretion, but will reverse only “upon a

showing of prejudice.” Pruitt v. Mote, 503 F.3d 647, 659

(7th Cir. 2009). Gruenberg repeatedly requested counsel

to advance his claims here, and the district court denied

those requests, finding that, in light of the numerous

pro se lawsuits Gruenberg had filed in the past, Gruenberg

was competent to litigate his case. “An indigent civil

litigant may ask the district court to request an attorney

to represent him pro bono publico.” Id. at 649. When a

litigant requests counsel, the district court must ask

No. 10-3391 15

(1) “has the indigent plaintiff made a reasonable attempt

to retain counsel or been effectively precluded from

making such efforts . . .”; and if so, (2) “given the difficulty

of the case, did the plaintiff appear competent to try it

himself?” Id. at 654.

Gruenberg did attempt to seek counsel, apparently

contacting eight different attorneys to represent him.

When he was unable to find counsel, he petitioned the

district court to appoint counsel, arguing that his mental

health issues and lack of education precluded him from

conducting discovery and from briefing a response to a

summary judgment motion. The district court disagreed,

holding that, despite Gruenberg’s mental health issues,

he was competent enough to represent himself effec-

tively and to argue his case.

The district court noted that the facts here were not

so complicated that a reasonable pro se litigant could

not advance them, and that Gruenberg had filed

numerous motions and declarations detailing what

had happened to him and the relief he sought, belying

his incompetence claim. In fact, the district court

pointed out that Gruenberg’s presentation of the case

was significantly above the capabilities of the average

pro se litigant.9 In light of this, the district court did not

9

This is far from the only case Gruenberg has litigated pro se.

He has filed at least six cases pro se in state and federal court

alleging various violations during his incarceration. See, e.g.,

Gruenberg v. Schneiter, 474 Fed. Appx. 459 (7th Cir.); Gruenberg

(continued...)

16 No. 10-3391

abuse its discretion by ruling that Gruenberg

was competent to advance his case and was not entitled

to appointed counsel.

III.

For the foregoing reasons, we affirm the judgment of

the district court. The defendants are entitled to qualified

immunity on Gruenberg’s Eighth Amendment claims.

Gruenberg’s procedural due process claim fails, and he is

barred from raising Fourteenth Amendment substantive

due process or Fourth Amendment claims on appeal.

Finally, the district court did not abuse its discretion

when it denied Gruenberg’s request for counsel.

A FFIRMED.

9

(...continued)

v. Lundquist, 318 Fed. Appx. 424 (7th Cir. 2008); and Gruenberg

v. Pollard, No. 08-cv-0524-slc, 2008 U.S. Dist. WL 4722531

(W.D. Wis. Oct. 22, 2008).

9-26-12