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McCottrell v. White

United States Court of Appeals, Seventh Circuit

July 29, 2019

John McCottrell and Dustin S. Clay, Plaintiffs-Appellants,
Marcus White and Labarin Williams, Defendants-Appellees.

          Argued October 25, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:15-cv-03208 - Amy J. St. Eve, Judge.

          Before Rovner, Hamilton, and Barrett, Circuit Judges.


         The plaintiffs were inmates at Stateville Correctional Center when they were struck by buckshot fired by the defendant prison guards. The plaintiffs sued under 42 U.S.C. § 1983, asserting that the guards violated their rights under the Eighth Amendment when they discharged their shotguns over a crowded prison dining hall. The guards countered that they fired the shots as a necessary warning to two other inmates who were fighting with each other and resisting the efforts of other guards who were trying to break up the conflict. The district court granted summary judgment in favor of the defendants. We vacate and remand.


         On summary judgment, we must construe the facts in favor of the nonmovant, and may not make credibility determinations or weigh the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). At the time of the November 6, 2013 incident, inmates John McCottrell and Dustin Clay were eating lunch in the Stateville Correctional Center dining hall. Guards Marcus White and Labarin Williams were stationed in a tower some fifteen feet above the dining hall and overlooking the area where inmates wait in line to enter the hall (a fenced space which the parties call "the chute") and the seating area. White and Williams were armed with loaded shotguns. In the dining hall, security staff are vastly outnumbered by inmates, who enter the hall without hand or foot restraints. Guards on the floor of the dining hall are armed only with pepper spray, and as many as four hundred inmates may be in the dining hall at a meal. Fights occur more frequently in the dining hall than in any other part of the facility because mealtimes are one of the few occasions where large groups of unrestrained inmates interact. Fights may escalate quickly, and inmates are sometimes armed with improvised weapons. Fights therefore pose a serious security threat to staff and other inmates.

         On this occasion, a scuffle broke out between two inmates (for security reasons, we will not name them) who were entering the hall via the chute, approximately forty to fifty feet from where the plaintiffs were seated. The brawling inmates were not armed and were wrestling or tussling with one another. Several correctional officers quickly intervened in the confrontation. Both inmates initially resisted the staff but short blasts of pepper spray from the officers on the floor brought compliance from each. According to the plaintiffs, after the inmates were separated and subdued, they were in the process of being handcuffed when White and Williams simultaneously discharged their shotguns over the dining hall.[1] The ceiling of the dining hall is equipped with a "shot box," a device intended to reduce the ricochet from warning shots. Neither White nor Williams hit the shot box, instead discharging their weapons either in the direction of the plaintiffs or into the ceiling, as we will clarify in a moment. Along with two other inmate bystanders, McCottrell and Clay were struck by buckshot from the blasts. The entire incident lasted less than a minute. Clay was wounded in his right arm above the elbow and the injury was serious enough to require stitches. McCottrell was struck in the neck and the leg, and was given bandages for his wounds. In addition to their physical injuries, both men suffered mental health issues arising from the incident.

         Before proceeding, we must clarify the summary judgment record regarding the direction in which the shots were fired. In the district court, the plaintiffs argued that the guards fired toward the inmates in the dining hall, rather than into the ceiling. R. 82, at 1-2. Both plaintiffs testified in their depositions that, although they did not see where the guards were aiming their guns, they both assumed that the guns must have been pointed toward the inmates because of the number of inmates who were hit by buckshot and because of their own wounds. R. 75-3, Tr. at 34; R. 75-2, Tr. at 21. The guards averred that they fired into the ceiling. In response to the defendants' statement of uncontested facts, the plaintiffs' lawyer contended that it was unlikely that both guards had fired into the ceiling because it was composed of acoustic tile and yet four inmates were struck by buckshot.[2] R. 84, at 10. But there is no evidence in the record regarding the composition of the ceiling. Oral Argument at 14:51-15:15 (defendants' counsel confirming that the record does not contain evidence regarding composition of ceiling). The district court appropriately rejected as hearsay the plaintiffs' additional assertions that other inmates told them that the guns were pointed toward the crowd.[3] The court then accepted as undisputed fact the defendants' claims that they aimed at the ceiling.

         But the direction of fire cannot be conclusively resolved on this thin and disputed record. Circumstantial evidence supports two possible paths for the buckshot to travel to the plaintiffs. The plaintiffs' assertion that the guns were pointed toward the inmates is a reasonable inference drawn from circumstantial evidence given that the buckshot penetrated the clothing and the skin of multiple bystander inmates (including the plaintiffs). One could argue that when A fires a gun and the bullet ends up in B, the most natural inference is that the gun was pointed at B. That inference in this case is supported by the force with which the buckshot arrived (again, the shot penetrated the clothing and skin of the plaintiffs and buckshot remains embedded in Clay's arm) and the number of persons injured. The defendants' alternate assertion that the buckshot arrived indirectly by ricochet, is also a reasonable inference, given that the shotguns (devices designed to scatter the pellets loaded in the shell) were fired indoors, in a crowded room, and away from the device installed to reduce ricochet. That inference is supported by the defendants' affidavits, but those affidavits do not conclusively resolve which competing inference is correct.[4]

         Circumstantial evidence "is proof of a fact, or a series of facts, that tends to show that some other fact is true."Seventh Circuit Pattern Jury Instructions - Civil § 1.12. For example, the observation of someone entering a room carrying a wet umbrella is circumstantial evidence that it is raining. Id. Similarly, the presence of buckshot in a person's body gives rise to competing inferences that the shotgun was either pointed in that person's direction or pointed in a manner that allowed the shot to arrive indirectly, by ricochet. Courts routinely direct juries that the "law makes no distinction between the weight to be given to either direct or circumstantial evidence." Id. That is so because "[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.1 (1957)). Indeed, circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt in criminal cases, and deserves no less respect in civil matters. See Holland v. United States, 348 U.S. 121, 139-40 (1954).

         The dissent's assertion that the plaintiffs have "no evidence that the officers shot into the crowd" is incorrect. The plaintiffs possess circumstantial evidence that the gun was pointed in their direction. In the dissent's view, a court would be required to conclusively credit a witness's sworn statement that it was not raining even in the face of the proverbial wet umbrella. But in the face of circumstantial evidence, a jury would not be required to credit the defendants' statements here, and that would leave the two competing inferences that the shot arrived either directly or indirectly. On summary judgment, a "'court may not assess the credibility of witnesses, choose between competing inferences or balance the relative weight of conflicting evidence; it must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party'" Orton-Bell v. Indiana, 759 F.3d 768, 772-73 (7th Cir. 2014) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005)). And if a jury not only rejected the defendants' assertion but also concluded that the defendants affirmatively lied about the direction of fire, that lie would be additional circumstantial evidence supporting the inference that the shot was aimed toward the plaintiffs. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (in the employment discrimination setting, proof that the defendant's purportedly nondiscriminatory explanation for its actions is "unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.").

         Contrary to the dissent's charge that we have given the plaintiffs "an assist/' the plaintiffs' arguments below and on appeal encompass both the possibility that the shots were fired into the ceiling, as the defendants claim, or toward the inmates, as may be inferred from the injuries sustained. See R. 82, at 1-2 (characterizing the defendants' actions as "[f]iring shotguns into a crowd of innocent bystanders ..." and asserting that defendants "were aiming at them when they fired").[5] Having preserved the issue in the district court, the plaintiffs do not expressly concede on appeal that the shots were directed at the ceiling (as the defendants claim), instead arguing that the district court "improperly credited Defendants' version of the facts." Opening Brief at 3. On appeal, the plaintiffs focus primarily on the guards' avoidance of the shot box, but contrary to the dissent's assertion that the direction of the shots is undisputed, there is a preserved fact question regarding the direction of fire. See Opening Brief at 2 ("fired gunshots that hit at least four bystander inmates"); at 4-5 ("fired buckshots that hit four inmates"); at 6 ("failed to shoot the 'shot box'"); at 11 ("neither Defendant shot the shotboxes"); at 20 ("extreme response of firing gunshots into the ceiling of a crowded area"); at 25 ("district court gave Defendants credit for purportedly choosing to aim 'at the ceiling and at the shot board on the ceiling'"); at 26 ("A reasonable jury could instead determine that Defendants' decision to shoot in the first place and their failure to hit the shot box intended to catch buckshot was because they did not want the buckshot caught."). In addition to these references in the Opening Brief, the plaintiffs expressly characterize the shots as being fired into a crowded area or near a crowd in their Reply Brief. Reply Brief at 11-15. As we explain above, that is a reasonable inference drawn from circumstantial evidence. That there is a competing inference and testimony to the contrary creates an issue for the jury We will also focus primarily on the claim that the shots were aimed at the ceiling and away from the shot box, but the plaintiffs are free to dispute the direction of fire on remand, having never conceded the point. As we conclude below, summary judgment is not appropriate in either scenario.

         White and Williams filed written Incident Reports with prison authorities and submitted to interviews with an internal affairs investigator from the Illinois Department of Corrections regarding the event. They also submitted affidavits with their motion for summary judgment. White and Williams wrote the Incident Reports within hours of the event, and the interviews took place in the early afternoon of the same day. In his brief Incident Report, Williams wrote that when staff rushed in to separate the inmates, the inmates began to struggle with the staff. He asserted that he believed the lives of the staff were in danger and so he "fired a warning round into the ceiling." He wrote that staff members were then able to secure the inmates. Williams told the investigator that he saw the inmates begin to fight but did not see any weapons. The inmates were wrestling up against a wall when staff rushed in to separate them. Williams saw the staff separate the inmates but did not see whether any officers on the ground used pepper spray. After the inmates were pulled apart, he could see only one of the inmates and that man was resisting and non-compliant but did not strike any staff members. Williams claimed that he thought the lives of the guards were in danger and so he fired a warning shot into the ceiling. R. 86, at 52-53.

         In his Incident Report, White wrote that he saw the two inmates striking each other in the face and head with closed fists. He saw security staff respond to the scene and attempt to break up the fight but the men continued to be combative and would not stop fighting. At that point, White said, he believed that lives were in imminent danger and so he fired one warning shot into the ceiling. After the shot, the guards on the floor were able to separate and restrain the brawling inmates. White told the investigator that Williams directed his attention to the chute where two inmates were "punching each other in the face." He saw "a bunch of staff" attempt to stop the fight but the inmates continued to scuffle. White reported that the inmates were "still going at it" when he fired a warning shot into the ceiling. He did not see a weapon and did not see the inmates strike any staff member but would not rule out the possibility that a staff member had been struck. White told the investigator that he fired the warning shot because he felt that the staff members were in imminent danger. Finally White said that he saw the staff members use pepper spray after he fired the warning shot.

         After completing interviews and receiving reports from staff and inmate witnesses, the investigator issued a report concluding that both White and Williams "violated Department Rules regarding Use of Excessive Force[.]" R. 86, at 5. The investigator found that the shots were fired immediately after one of the guards administered pepper spray toward one of the brawling inmates. Both defendants failed to note in their Incident Reports that the fighting inmates had been separated before the warning shots were fired. Both White and Williams also failed to give accurate depictions of the incident in chronological order in their official reports. For example, White's claim that the inmates were "still going at it" when he fired a warning shot conflicted with the video and other evidence.[6] Moreover, no staff members were punched or struck during the altercation, and the video showed no signs that anyone within view sustained injuries that could be considered "great bodily harm." R. 86, at 5. The report concluded that "White and Williams used an unreasonable amount of force (warning shot) outside the scope and not in accordance with Departmental Rule 501.30 Justifiable Use of Force." R. 86, at 5.[7]

         McCottrell and Clay sued Williams and White under 42 U.S.C. § 1983, alleging that the guards violated their rights under the Eighth Amendment by using excessive force when they fired shotguns into the crowded dining hall after the conflict was over.[8] During the course of the litigation, some three years after the internal affairs report was issued, White and Williams signed affidavits describing the event somewhat differently than they had on the day of the shooting. White's affidavit states, in relevant part:

On November 6, 2013, I witnessed two offenders fighting within the dining hall. Correctional staff acted quickly to separate the offenders. However, one of the offenders continued to struggle with correctional staff and refused to comply. Correctional staff members were having difficulty restraining this offender. I discharged a warning shot into the ceiling.

         R. 75-5, at 2. Williams' affidavit repeats this language word for word, adding the phrase, "toward the nearest shot-box" to the end of the final sentence. R. 75-4, at 2. White added to his affidavit that he shot into the ceiling as opposed to the shot box because he had been advised that it would decrease the risk of ricochet and he wished to minimize that risk. Thus, contrary to their earlier reports, they acknowledged during the litigation that the inmates had been separated and that only a single inmate purportedly continued to struggle at the time the shots were fired. Williams had not previously reported that his firearm was directed toward the shot box, and White had not previously claimed that he believed the ceiling to present less of a risk of ricochet than the shot box. Both guards averred that they believed that warning shots were necessary to restore safety and order in the dining hall, that the struggling offender posed a serious threat to the correctional staff attempting to subdue him, that they did not know whether the offender possessed a weapon, and that they did not fire their weapons with the intent to injure anyone.

         The district court granted summary judgment in favor of the defendants after concluding that the plaintiffs lacked evidence that the officers' use of force was wanton or unnecessary. Noting the statements of White and Williams that they fired the shots in order to restore order, the court found that the defendants' belief that the shots were necessary was reasonable given that prison fights often escalate quickly and inmates sometimes use makeshift weapons. Crediting the defendants' statements that the shots were fired toward the ceiling rather than in the direction of the plaintiffs, the district court found that the direction of the shots indicated an attempt to temper the severity of the response. The court also noted that neither officer knew the plaintiffs or harbored any personal ill will toward them. After reviewing a blurry surveillance video of the dining hall, the court concluded that the shots were fired while one of the inmates continued to struggle with the officers, and the court found that it was therefore reasonable to believe that the warning shot was necessary to restore order.[9] Because the plaintiffs lacked evidence that the defendants acted "maliciously and sadistically/'[10] the court granted judgment in favor of the defendants. McCottrell and Clay appeal.


         On appeal, McCottrell and Clay assert that there are genuine issues of material fact regarding the intent of the defendant officers when they fired the shots over the dining hall. They argue that the court should have applied the five-factor test set forth by the Supreme Court in Hudson v. McMillian, 503 U.S. 1 (1992), and Whitley v. Albers, 475 U.S. 312 (1986), in determining the officers' intent, and that application of those factors would have made clear that the key question of intent was disputed. Instead, they maintain, the court inappropriately resolved disputed fact questions in favor of the defendants. We review the district court's grant of summary judgment de novo, examining the record in the light most favorable to the plaintiffs and construing all reasonable inferences from the evidence in their favor. Anderson, 477 U.S. at 255; Lapre v. City of Chicago, 911 F.3d 424, 430 (7th Cir. 2018). Summary judgment is appropriate when there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477 U.S. at 247-48; Lapre, 911 F.3d at 430.


         The Eighth Amendment forbids the imposition of "cruel and unusual punishments" against persons convicted of crimes. Whitley, 475 U.S. at 318. In Whitley, prison personnel were faced with a riot instigated by drunken inmates who took a guard hostage. One inmate was armed with a homemade knife and had threatened to kill the hostage if prison officials sent in an assault squad to end the conflict. After assessing the situation, officials decided to send in the armed assault team with directions to fire a warning shot and then aim low at any prisoners taking a staircase that led to the area where the hostage was being held. The assault squad was successful in retrieving the hostage and capturing the inmate who was armed with a knife. But in the course of the rescue, an inmate uninvolved in the fracas was shot when he attempted to take the staircase back to his cell. 475 U.S. at 314-16.

         The bystander inmate sustained severe injuries to his leg as well as mental and emotional distress. Like McCottrell and Clay, he brought suit under 42 U.S.C. § 1983, claiming violation of his rights under the Eighth Amendment. Although the district court granted summary judgment to the defendants, the court of appeals reversed. The court of appeals relied on evidence that the disturbance was subsiding at the time that prison officials sent in the assault squad. Moreover, the plaintiff had presented expert evidence concluding that the amount of force employed was excessive under the circumstances. But the Supreme Court determined that the court of appeals had "effectively collapsed the distinction between mere negligence and wanton conduct ... implicit in the Eighth Amendment." Whitley, 475 U.S. at 322. Although the general disturbance had died down, the situation remained dangerous and volatile; the safety of the guard being held hostage was still in question and an inmate was armed. As for the expert opinion:

At most, this evidence, which was controverted by petitioners' experts, establishes that prison officials arguably erred in judgment when they decided on a plan that employed potentially deadly force. It falls far short of a showing that there was no plausible basis for the officials' belief that this degree of force was necessary. Indeed, any such conclusion would run counter to common sense, in light of the risks to the life of the hostage and the safety of inmates that demonstrably persisted notwithstanding repeated attempts to defuse the situation. An expert's after-the-fact opinion that danger was not "imminent" in no way establishes that there was no danger, or that a conclusion by the officers that it was imminent would have been wholly unreasonable.

Whitley, 475 U.S. at 323. Ultimately the Court concluded that the prison officials did not violate the plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. Whitley, 475 U.S. at 326.

         In reaching this conclusion, the Court reasoned that Eighth Amendment claims must be analyzed "with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged." Whitley, 475 U.S. at 320. For example, claims regarding deliberate indifference to a prisoner's serious medical needs or harsh conditions of confinement do not present the same institutional concerns as those relating to the amount of force needed to maintain or restore order to the prison. Id. As the Court pointed out, the jailer's "responsibility to attend to the medical needs of prisoners does not ordinarily clash with other equally important governmental responsibilities." Id.

But, in making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials undoubtedly must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used.

Whitley, 475 U.S. at 320. For that reason:

Where a prison security measure is undertaken to resolve a disturbance ... that indisputably poses significant risks to the safety of inmates and prison staff, ... the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "whether force was applied in a good faith effort to maintain or restore ...

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