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Bagola v. Kindt

December 5, 1997

LOREN BAGOLA, PLAINTIFF-APPELLANT,

v.

THOMAS KINDT, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division.

No. 93 C 93--John D. Tinder, Judge.

Before Flaum, Diane P. Wood, and Evans, Circuit Judges.

Flaum, Circuit Judge.

Argued September 8, 1997

Decided December 5, 1997

While working for Federal Prison Industries, inmate Loren Bagola's right hand was severed when he slipped and caught his arm in a machine that was operating at the time. Alleging that the appellee prison factory officials were deliberately indifferent to his safety, Bagola brought a Bivens *fn1 claim against the appellees for violating his Eighth Amendment rights. The district court granted summary judgment to the appellees, finding that Bagola had not established an inference of the appellees' deliberate indifference towards inmate safety. We affirm.

Background

In August 1989, Bagola was convicted in federal court of second-degree murder and of using a firearm during a crime of violence. He received a sentence of twenty years in prison and was committed to the United States Penitentiary in Terre Haute, Indiana (USPTH). Shortly thereafter, Bagola began work for Federal Prison Industries, Inc. (known as UNICOR), which is a government corporation within the Bureau of Prisons that provides industrial work programs and training opportunities to federal prisoners. Inmates must apply to work in UNICOR programs; applicants ordinarily are placed on waiting lists and will not be hired if UNICOR officials adjudge them a threat to safe factory operations. See 28 C.F.R. secs. 345.10-.50.

Bagola worked as a "card fixer" in the penitentiary factory's Card and Spin Department, which produced wool blankets. His responsibilities included cleaning, inspecting, and repairing twelve Whitten card machines--large textile machines used to manufacture wool. The twelve machines were aligned in two rows, and an aisle separated the rows of six machines. At the time of Bagola's accident, gates protected three sides of each machine. The side that faced the aisle remained completely exposed.

Bagola had been working in the Department for nearly two years when, on October 15, 1991, the unfortunate events giving rise to this litigation occurred. Bagola slipped on a patch of oil on the floor while he was inside the gates inspecting a Whitten machine that was in operation. He lost his balance and caught his hand in one of the machine's exposed parts--the "stripper roller." Bagola's cries of pain alerted one of his co-workers, inmate Steven Wallace, who turned off the machine. When factory officials extricated Bagola's arm from the roller, his right hand was missing. Bagola was rushed to the hospital, where efforts to reattach his hand proved unsuccessful.

Because he sustained his injury while working for UNICOR, Bagola was entitled to compensation for his injuries pursuant to 18 U.S.C. sec. 4126 and the regulations promulgated by the Attorney General thereunder. Section 4126(c)(4) permits UNICOR to compensate injured workers for their work-related injuries. Bagola received $928.32 in lost-time wages pursuant to 28 C.F.R. secs. 301.201-.204. In addition, Bagola may apply for compensation for the loss of his hand within forty-five days of his release from prison. *fn2 See id. sec. 301.303.

So far, the facts of this case, though tragic, constitute no more than a traditional worker's compensation case-- albeit in a penological setting. Bagola's Eighth Amendment claim relies on additional facts that, he argues, indicate a history of safety problems in the factory and prison officials' indifference to those problems. We portray these facts in the light most favorable to Bagola, as we must when reviewing an appeal of the district court's award of summary judgment. See, e.g., Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir. 1996).

While UNICOR industries are not required by law to comply with the Occupational Safety and Health Administration's (OSHA) safety standards, OSHA officials inspect federal prison industries and advise prison officials regarding perceived safety problems. When OSHA Compliance Officer Nick Antonio inspected the USPTH in September 1990, he found several safety violations, many of which pertained to the Whitten card machines. Antonio's report concluded that various nip points *fn3 on the machines were not adequately guarded, and that the machines were inadequately guarded in other ways as well. In response to these problems, Safety Manager R.J. Vastlik installed gates and cages around the machines, as well as an emergency shutoff cable that extended the full length of the machines. Vastlik informed then-Warden Thomas Kindt, in a January 15, 1991 memorandum, that all of the violations pertaining to the Whitten machines had been abated.

When he returned to the USPTH on August 27, 1991, Antonio learned that the violations had not, in fact, been sufficiently remedied. Instead, he found that various nip points on the machines remained inadequately guarded. Before OSHA issued any safety violation notices as a result of Antonio's August inspection, it sent a letter to Vastlik on October 11, outlining five non-mandatory proposals to abate the hazards posed by the Whitten machines. *fn4 The proposals included modifying the gates surrounding the machines to make them lock automatically when someone closes them; and increased supervision of workers, particularly while the gates were open and the machinery was operating. Then, on October 15, the day of Bagola's accident, OSHA issued three Notices of Unsafe or Unhealthful Working Conditions as a result of Antonio's August inspection. OSHA sent these notices to Kindt by letter on October 16, but he did not receive the letter until October 21. Following these OSHA notices and Bagola's accident, factory officials installed new barrier gates, guards, and electric safety features to eliminate the possibility of worker access to nip points while the machines were running.

Notwithstanding the hazards posed by the card machines, the record reflects that factory officials took worker safety seriously. UNICOR safety officials conducted monthly safety inspections. Bagola, like other factory workers, was required to attend periodic safety talks; some of those that he attended include "Protecting Your Hands" and "Hand and Finger Injuries." In addition, Bagola received a job safety analysis that detailed the hazards of his job. The analysis indicated that he was not permitted inside the gates while the machines were energized, and that when inspecting or repairing a machine, he was required to ensure that the machine was not only turned off, but "locked out" so that no other employee could turn on the machine.

While Bagola acknowledges that he attended the safety meetings, and that he read the analysis and signed a declaration to comply with its requirements, he asserts that the reality of his employment duties was quite different. He claims that he was required to work inside the protective gates in the aisle between the machines and to inspect the machines while they were running. This requirement caused him to work around nip points that were left completely exposed. Bagola asserts that the factory officials knew that the Whitten machines were still dangerous, despite Vastlik's January 15th memorandum asserting that the unsafe conditions had been abated. *fn5

Bagola filed this complaint in the Southern District of Indiana, seeking $750,000 in compensatory damages and $1,000,000 in punitive damages from each of the defendants. Bagola's amended complaint named five prison officials as defendants: then-Warden Kindt; Terah Tracy, the Factory Manager; Steve Ashley, the Assistant Factory Manager; and Thomas Clifton and Don Fountain, Lead Card and Spin Foremen at the factory. *fn6 The district court initially dismissed Bagola's in forma pauperis (IFP) petition as frivolous, on the ground that the Complaint did not allege the defendants' subjective, deliberate indifference to Bagola's safety, which is an essential element of his Bivens claim. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).

On appeal, this Court reversed the district court's denial of IFP status to Bagola, reasoning that the Complaint adequately alleged facts supporting the defendants' subjective, deliberate indifference. See Bagola v. Kindt, 39 F.3d 779, 780 (7th Cir. 1995) (Bagola I). We also noted that the worker's compensation provided to Bagola by 18 U.S.C. sec. 4126 did not preclude his Bivens claim. Recognizing that this was an issue of first impression, we remanded to the district court with instructions to appoint counsel for Bagola. See id. On remand, the defendants filed a motion to dismiss or, in the alternative, for summary judgment. Reviewing the expanded evidentiary record, the court granted the summary judgment motion. The court found that the evidence did not establish an inference that the defendants acted with deliberate indifference toward worker safety. *fn7 The district court believed that the evidence supporting Bagola's assertions indicated nothing more than negligence, which would be insufficient to support an Eighth Amendment claim.

Discussion

Bagola argues that the district court erred in granting summary judgment, because evidence in the record created a genuine issue regarding the appellees' deliberate indifference to inmate safety at the UNICOR factory. Before reaching this argument, we must consider the appellees' contention that the district court did not have jurisdiction under 28 U.S.C. sec. 1331 to hear Bagola's Bivens claim. They argue that the worker's ...


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