Argued May 31, 2013
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:10-cv-00347-PJG -- Patricia J. Gorence, Magistrate Judge.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
For John Townsend, Plaintiff - Appellant: Dillon Ambrose, Attorney, Heather K. Gatewood, Attorney, Kathy L. Nusslock, Attorney, Elizabeth K. Miles, Attorney, Davis & Kuelthau, Milwaukee, WI.
For Sarah Cooper, William Swiekatowski, Mark Zimonick, Martha Breen-Smith, TODD HAMILTON, Doctor, Defendants - Appellees: Crystal A. Banse, Attorney, Francis X. Sullivan, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.
Before FLAUM, MANION, and ROVNER, Circuit Judges.
Rovner, Circuit Judge.
John Townsend was a prisoner at the Green Bay Correctional Institution (" GBCI" ), a facility operated by the Wisconsin Department of Corrections (" DOC" ). Townsend sued a number of officials at the Green Bay facility for violations of his civil rights under the Eighth and Fourteenth Amendments. The lower court granted summary judgment in favor of the defendants. We affirm in part and vacate and remand in part.
On appeal from a grant of summary judgment, " [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must therefore credit Townsend's version of the facts at this stage. GBCI has procedures in place for inmates who violate prison rules. See Wis. Admin. Code (the " Code" ) § § DOC 303.01 et seq . (the " rules governing inmate conduct under this chapter describe the conduct for which an inmate may be disciplined and the procedures for the imposition of discipline." ). The extensive procedures that follow section DOC 303.01 govern how prison officials may enforce discipline in Wisconsin prisons. See e.g . Wis. Admin. Code. § § DOC 303.69 & 303.70 (describing procedures for major penalties including adjustment segregation, program segregation and disciplinary separation). See also R. 63-9 (GBCI Segregation Unit Handbook).
The prison also has procedures for inmates who are mentally ill and pose a danger to themselves or others. See Wis. Admin. Code § § DOC 311.01 et seq . That chapter provides " for an involuntary or voluntary nonpunitive status to be used for the temporary confinement of an inmate to ensure the inmate's safety and the safety of others if the inmate is mentally ill and dangerous, [or] is dangerous to himself or herself[.]" As with disciplinary infractions, the Code provides extensive procedures for placements for mental health reasons. See e.g . Wis. Admin. Code § DOC 311.04 (" Mental health placement" ). The non-punitive status that GBCI employs is referred to as " observation status," a very restrictive status in which prison staff remove any property that the inmate could use to injure himself or others. See Wis. Admin. Code § DOC 311.14 (" Conditions of confinement while in observation" ). For an inmate bent on self-destruction, this could include almost any property, and some Wisconsin inmates have proven morbidly creative in their use
of common objects to harm themselves. See e.g. Bowers v. Pollard, 602 F.Supp.2d 977, 981 (E.D. Wis. 2009) (behavior action plan applied to mentally ill inmate who repeatedly attempted to injure himself by inserting objects such as the teeth of a comb, fingernails, a piece of a milk carton and a piece of a mattress, into his penis).
Townsend presented complex challenges to the staff at GBCI because he suffered from significant mental illness and also engaged in disruptive behavior. The resulting actions that prison staff took to address his behavior were a blend of the two approaches. As we will see, though, the hybrid approach lacked procedural protections required by the due process clause and sometimes resulted in living conditions that did not meet the Eighth Amendment's standard for the minimal civilized measures of life's necessities. Under the hybrid approach, if an inmate at GBCI engages in " continual disruptive, destructive, assaultive or self-harming behaviors" and " regular measures" have " failed to correct the inmate's behavior," the prison's Segregation Review Committee implements a Behavior Action Plan (" BAP" ) for the inmate. According to the defendants, a BAP is an individualized plan that is designed to provide incentives for appropriate behavior. An inmate on a BAP faces restrictions on his property and privileges; good behavior results in restoration of property and privileges, and " unstable" behavior is met with more severe restrictions. Although the prison characterizes a BAP as nonpunitive, it also cites as the source of authority for the BAP the sections of the Wisconsin Administrative Code that provide for " Major penalties: adjustment segregation," and " Major penalties: program segregation and disciplinary separation." See Wis. Admin. Code. § § DOC 303.69 & 303.70. Whether the BAP is punitive and whether it requires notice and an opportunity to object is one of the disputed issues in the case that we will address below.
According to a prison psychologist, Townsend had " multiple observation placements dating back to February 2004." R. 63-11, at 2. These placements were based on threats of self-harm and Townsend's inability to " contract for safety." In February 2004, for example, while housed in the general population, Townsend tried to hang himself from a light with a bed sheet. Beyond being placed on observation status, the record does not reveal how the prison responded to Townsend's February 2004 suicide attempt. In March 2005, Townsend again told prison staff that he wanted to kill himself. As a result, a prison psychologist, Dr. Steven Schmidt, placed Townsend on observation status on March 17, 2005. During the next three months, Townsend twice tried to kill himself and repeatedly expressed suicidal desires. Prison psychologists Dr. Todd Hamilton and Dr. Martha Breen-Smith regularly visited Townsend during this period and adjusted his living conditions to remove from his possession objects he could use to harm himself. For example, after trying to hang himself from a light fixture on May 24, 2005, his possessions were limited to a blanket, a smock and a book. On May 26, he was released briefly from observation status only to be placed back on that status later that same day after again threatening to harm himself. On June 2, he was released from observation status but was found later with a sheet wrapped around his neck, resulting in a return to observation that same day. A few weeks later, when he removed a strip of Velcro from his smock and stated an intention to use it to hang himself, he was given a paper gown instead. At times, when staff deemed it safe, he was allowed to shower and was given soap, a towel and shower shoes for that purpose. Otherwise, while on observation status,
Townsend's access to his property was very limited.
In May 2005, in the midst of multiple placements and releases from observation status, Dr. Schmidt conducted a " Review for Mental Health Placement" for Townsend. R. 63-11, at 1. Dr. Schmidt diagnosed Townsend as suffering from Post-Traumatic Stress Disorder (" PTSD" ). He noted that Townsend had " multiple contacts with psychological services in the past," that he was generally cooperative and did not show signs of psychotic symptoms " except one time." He was at times agitated and dysphoric, and he reported to prison psychologists that events in the general population sometimes triggered memories that led to him acting out. Dr. Schmidt noted in his report that Townsend had been placed on observation status twice in May 2005 after telling staff that he was depressed and wanted to hurt himself. Townsend had not been prescribed any psychotropic medications. Dr. Schmidt concluded that Townsend was looking for help, wanted to be helped, and was motivated to work with the staff at the Wisconsin Resource Center (" WRC" ), a secure mental health facility for prisoners. On May 18, 2005, Dr. Schmidt therefore recommended an " urgent transfer" to the WRC for Townsend.
But Townsend was not transferred to that facility. Although the record does not reveal the reason that Dr. Schmidt's urgent request and recommendation was not carried out, at oral argument, counsel for the defendants stated that there was another inmate at the WRC with whom Townsend could not be placed. Instead, on June 21, 2005, just weeks after Dr. Schmidt's urgent recommendation, Townsend was released from segregation status and on June 22, he was released from observation status and returned to the prison's general population.
Not surprisingly, his stay in the general population was short-lived. Within a day, he got into a fight with other inmates, and on June 23, 2005, he was placed in " temporary lock-up status." On June 24, he was placed in " control status" and given a paper gown. On that same day, the Segregation Review Committee placed Townsend on a BAP. ...