Rovner, Circuit Judge.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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.
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.
But the direction of fire cannot be conclusively resolved on this thin and disputed
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, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.1, 77 S.Ct. 443, 1 L.Ed.2d 493 (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, 75 S.Ct. 127, 99 S.Ct. 150 (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
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").
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
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.
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
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, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), and Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (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
The Eighth Amendment forbids the imposition of "cruel and unusual punishments" against persons convicted of crimes. Whitley, 475 U.S. at 318, 106 S.Ct. 1078. 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, 106 S.Ct. 1078.
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, 106 S.Ct. 1078. 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:
Whitley, 475 U.S. at 323, 106 S.Ct. 1078. 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, 106 S.Ct. 1078.
In reaching this conclusion, the Court reasoned that Eighth Amendment claims must be analyzed "with due regard for differences in the kind of conduct
Whitley, 475 U.S. at 320, 106 S.Ct. 1078. For that reason:
Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.)).
The ultimate determination of the intent of the person applying the force in an excessive force claim involving prison security measures depends upon a number of factors, including: (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response. Whitley, 475 U.S. at 321, 106 S.Ct. 1078. See also Hudson, 503 U.S. at 7, 112 S.Ct. 995 (listing the five factors); Lewis v. Downey, 581 F.3d 467, 477 (7th Cir. 2009) (same); Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004) (same). "From such considerations inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321, 106 S.Ct. 1078.
Deference must be accorded to prison administrators in the adoption and execution of policies and practices that are needed to preserve order and ensure institutional security. Whitley, 475 U.S. at 321-22, 106 S.Ct. 1078. The Court intended that this deference be extended to a particular security measure taken in response to an actual prison disturbance as well as to preventative measures:
Whitley, 475 U.S. at 322, 106 S.Ct. 1078.
Although Whitley involved a prison riot that included a guard being held hostage, the Court later remarked that the concerns underlying the holding of Whitley apply whenever guards use force to keep order:
Hudson, 503 U.S. at 6-7, 112 S.Ct. 995 (citations omitted).
In Hudson, the Court also made clear that not "every malevolent touch by a prison guard gives rise to a federal cause of action." 503 U.S. at 9, 112 S.Ct. 995. Instead, the Eighth Amendment's prohibition against cruel and unusual punishments excludes from constitutional recognition de minimis uses of force that are not of the kind that would be "repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10, 112 S.Ct. 995 (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). But the Court also clarified that "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident." Hudson, 503 U.S. at 9, 112 S.Ct. 995. The extent of injury is relevant to the Eighth Amendment inquiry because it provides some indication of the amount of force applied, and because it may suggest whether the use of force was plausibly necessary in a particular situation; but the absence of serious injury is not the end of the analysis. Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010).
In this case, the threshold question of whether the force applied was more than de minimis is easily answered. The firing of two shotguns toward the crowd, or into the ceiling of a crowded dining hall no doubt qualifies as more than a de minimis use of force, as the district court found. See McCottrell v. Correctional Officers, No. 1:15-cv-03208, slip. op. at 9, 2017 WL 2224880 (N.D. Ill. May 22, 2017) (finding that discharging a firearm is plainly more than a de minimis use of force). The prison itself had installed a "shot box" device on the ceiling to minimize the known risks of ricochet from warning shots discharged in that space, and both defendants aimed away from this safety device. The resulting injuries and the pain inflicted confirm that the force was significant. See Lewis, 581 F.3d at 475 (pain is the barometer by which we measure claims of excessive force, and the use of a stun gun, which sends an electric pulse through the body causing immobilization, disorientation, loss of balance, and weakness,
Setting aside for a moment the plaintiffs' claim that the guards may have fired directly toward the crowd, the dissent suggests that firing two shotguns loaded with buckshot into the ceiling of a crowded dining hall cannot be deemed to be malicious and sadistic or even characterized as an intentional application of force without a showing that a guard "intended to hit or harm someone with his application of force." That standard is met here. A jury may infer intent to make physical contact from the nature of the act taken, and spraying buckshot into a crowded room, either directly towards people or by the known force of ricochet, is circumstantial evidence that gives rise to an inference that the guards intended to injure the persons seated below. As we discuss infra, both defendants averred that they fired into the ceiling, avoiding the device intended to minimize ricochet. That action of purposely avoiding the shot box gives rise to an inference that the guards intended to make physical contact. That they might not have cared which particular inmate (or how many inmates) they hit is not relevant to the question of whether they intentionally applied force. Discharging shotguns loaded with buckshot in a crowded dining hall was a "force applied" that was more than de minimis. From consideration of the Whitley factors, "inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321, 106 S.Ct. 1078. See also Farmer v. Brennan, 511 U.S. 825, 835-36, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (in a claim for excessive force during a prison disturbance, the claimant must show that officials applied force maliciously and sadistically for the very purpose of causing harm, or that officials used force with a knowing willingness that harm occur). Firing a shotgun into the ceiling and away from the shot boxes in a crowded dining hall gives rise to an inference that the guards used force with a "knowing willingness" that harm would occur. Whitley, 475 U.S. at 321, 106 S.Ct. 1078.
Although Whitley afforded deference to prison officials during a disturbance, the Court did "not insulate from review actions taken in bad faith and for no legitimate purpose." 475 U.S. at 322, 106 S.Ct. 1078. A warning shot taken when there is no need to warn arguably has no legitimate purpose, and one purposely aimed away from a safety device raises an inference of bad faith. But under the dissent's version of the test, a guard could blindly unload a shotgun above a crowd of bystanders with impunity because making contact is not a certainty. Nothing in Whitley requires targeting. Whitley instead refers to a "security measure ... undertaken to resolve a disturbance" and directs us to consider "whether the measure taken inflicted unnecessary and wanton pain and suffering," a calculus that, in the prison disturbance setting, turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. at 321, 106 S.Ct. 1078. Firing buckshot toward a crowd of bystanders or into the ceiling above them (and away from the devices intended to reduce ricochet) may be comfortably characterized as a force applied during a security measure. See also Gomez v. Randle, 680 F.3d 859, 861-62, 864-65 (7th Cir. 2012) (bystander prisoner struck by buckshot fired into inmate population by guard on catwalk as guards on the ground sought to break up a fight between two unarmed
The dissent also asserts that, in order to show that the guards intentionally shot the plaintiffs (as opposed to recklessly disregarding the risk of ricochet), the plaintiffs could have introduced evidence regarding the composition of the ceiling in order to demonstrate that ricochet was "very likely." In that event, the dissent continues, "firing into the ceiling would be the functional equivalent of firing into the crowd." Post, at 675. There is no evidence in the record regarding the composition of the ceiling but there is evidence that the prison regarded the ceiling as a dangerous target: the prison itself installed shot boxes throughout the facility to reduce ricochet from warning shots. The installation of those boxes is evidence that the prison itself considered ricochet to be "very likely." A jury may infer from the presence of the shot boxes that the guards were aware that a shotgun blast to the ceiling would ricochet into the crowd below.
As we discuss below, in analyzing the fifth Whitley factor (efforts made to temper the severity of the force), the plaintiffs contend that "failure to hit the shot box might have been malicious." Opening Brief at 26. The plaintiffs argued that the guns were either directed at the crowd or at the ceiling. They maintained that if the shots were fired into the ceiling, a reasonable jury could infer that the guards' "failure to hit the shot box intended to catch buckshot was because they did not want the buckshot caught." Opening Brief at 26. The plaintiffs also argued that a jury could find that the guards' claims regarding the shot box (including their inability to hit it or their decisions to aim elsewhere, purportedly for safety reasons) were not credible, especially in light of their other misleading statements. Id. Thus, the plaintiffs do in fact cite circumstantial evidence that shooting at the ceiling (and away from the shot box) was functionally equivalent to sending buckshot into the crowd. This is more than recklessness, as the dissent asserts; a jury could conclude that this application of force "evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321, 106 S.Ct. 1078. It is obviously easier for the plaintiffs to prove that the guards met this standard if the guns were pointed at the crowd instead of the ceiling. But it is possible to prove that the standard was met even if the guns were pointed at the ceiling and purposefully away from the shot box. From the evidence presented, the jury could infer both intent to make contact and malice.
So we turn to the five factors that the Supreme Court set forth in Whitley, the controlling test for determining intent when more than de minimis force is applied in a prison disturbance.
The first factor is the need for the application of force, and on this point, there are material disagreements of fact. The plaintiffs produced evidence that the fight was nothing more than a minor shoving match between two unarmed combatants, and that the tussling inmates had been separated and subdued and were in the process of being handcuffed when the shots were fired. In the plaintiffs' view, there was no need for the warning shots because the officers on the ground had already successfully used pepper spray to secure the situation. Some of the factual conclusions of the internal affairs report bolster this view. The report found that the fighting inmates had already been separated, that neither was armed with a weapon, that no staff members had been struck, and that the fighting inmates were brought to compliance with the application of pepper spray before the shots were fired.
The defendant guards, on the other hand, told an evolving story about the sequence of events, at first reporting that the inmates were fighting and struggling with staff members who were trying to separate them at the moment the shots were fired, then later stating that the inmates had been separated before the shots were fired, and then finally that the inmates had been separated and only one inmate continued to struggle before the shots were then fired. A jury could infer from the shifting stories told by the guards that they were not truthful regarding the need for the application of force. See Reeves, 530 U.S. at 147, 120 S.Ct. 2097; Ray v. Clements, 700 F.3d 993, 1025 n.7 (7th Cir. 2012) (witness's changing story supports inference of lying).
If the plaintiffs are correct about the sequence of events, then there was arguably no need for warning shots at all. Lewis, 581 F.3d at 477 (where the exact sequence of events leading to a stun gun's use is strongly disputed, the court is required to view the facts in the light most favorable to prisoner opposing summary judgment). Unlike Whitley, there was no ongoing dangerous and volatile situation. See Lewis, 581 F.3d at 477-78 (where an inmate asserts that he was merely lying on his bunk, weak and sluggish from a hunger strike, without sufficient time to respond to an order to stand, the inmate displayed no aggressive or threatening behavior that would have justified application of a stun gun without warning). But if the defendants' various versions of the event can be reconciled and are correct, then from the guards' perspective, the force could plausibly have been thought necessary. Whitley, 475 U.S. at 321, 106 S.Ct. 1078; Wilkins, 559 U.S. at 37, 130 S.Ct. 1175. The evidence supports an inference that the shots were fired after the fight on the floor was under control. Only a jury can resolve the factual dispute regarding the state of the conflict and the need for force at the time the shots were fired. But, construing the facts in favor of the plaintiffs, there was no need for any warning shots at the time they were fired, which gives rise to an inference of malice and sadism on the part of the guards.
The second factor, the relationship between the need for force and the amount of force employed, is closely tied to the first factor. Obviously, if there was no need for the warning shots, then those shots were significantly disproportionate to the need for force. The guards on the
As we noted in footnote 6 above, the district court concluded that the report was admissible under Federal Rule of Evidence 803(8), as "factual findings from a legally authorized investigation," a conclusion that the defendants did not contest on appeal. Thus, the plaintiffs are free to use the factual findings of the report to demonstrate that there are genuine issues of material fact that must be resolved at trial. It is not the prison's policies or the guards' violations of those policies that are relevant. Only the factual findings may be considered, and those findings bolster the plaintiffs' evidence that the shots were fired after the conflict was over, at a time when there may have been "no plausible basis for the officials' belief that this degree of force was necessary." Whitley, 475 U.S. at 323, 106 S.Ct. 1078. See also Lewis, 581 F.3d at 478 (in light of the absence of any agitation or threat from an inmate, the short passage of time between a single order and the application of a stun gun, and a lack of warning as to the consequences of a failure to comply with the order, summary judgment in favor of the defendant officer is not appropriate). Construing the facts in favor of the plaintiffs, the force applied was grossly disproportionate to the force that could plausibly have been thought necessary, again giving rise to an inference of malice and sadism.
We next consider the extent of injury inflicted. McCottrell and Clay each suffered physical and psychological wounds caused by the buckshot. In Clay's case, the wound had to be closed with stitches and the buckshot remains in his arm. McCottrell bled from the wounds in his neck and leg, and required pain medication. Both men also suffered psychological trauma from the event and sought treatment for their emotional injuries. "Injury and force ... are only imperfectly correlated, and it is the latter that ultimately counts." Wilkins, 559 U.S. at 38, 130 S.Ct. 1175. The defendant guards do not dispute the extent of the injuries or the nature of the force applied, and we can safely say that the injuries and the force employed were significant enough to bring the case within the constitutional realm.
The fourth factor is the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible individuals on the basis of the
At the same time, other witnesses reported that the fight was over by the time the shots were fired, that no weapons had materialized, that no other inmates joined the fracas, and that no staff had been attacked. Unlike Whitley, there was no prison riot, no hostage, and no armed agitator. In combination with the finding that White and Williams gave inaccurate and evolving accounts of the sequence of events, a jury could infer that their perception of the threat was not reasonable. If the defendants saw that the fight was over and that the guards on the floor had the situation under control, then there was no penological justification for firing warning shots, giving rise to an inference of malice and sadism. Whitley, 475 U.S. at 322, 106 S.Ct. 1078 (deference to prison officials does not insulate from review actions taken in bad faith and for no legitimate purpose); Fillmore, 358 F.3d at 504 (infliction of pain that is totally without penological justification is per se malicious).
The fifth and final factor is whether any efforts were taken to temper the severity of a forceful response. This factor is also disputed. As we discussed above, there is a reasonable inference that the guards fired directly toward the bystander inmates. Supra at pp. 656-59. That would indicate that little or no effort was taken to temper the severity of the force. Even the defendants' evidence, as construed in favor of the plaintiffs, demonstrates that White and Williams purposely fired into the ceiling rather than the shot box, the device intended to reduce injuries from ricochet. Williams submitted an affidavit during summary judgment proceedings in which he stated that he "discharged a warning shot into the ceiling toward the nearest shot-box." R. 75-4, at 2. Williams did not indicate whether he was trying to hit the shot box and missed, or purposely aimed at the ceiling, but the evidence raises an inference that he purposely shot at the ceiling. In his official "Incident Report," Williams wrote that he "fired one warning round into the ceiling." R. 85, at 54. In his interview with the investigator, he also stated that he fired a round "into the ceiling." R. 85, at 52. Only in his affidavit did he add the detail that he fired the shot "toward the nearest shot-box." Construing this account in favor of the plaintiffs, Williams chose the ceiling rather than the shot box for the warning shot. As discussed above, the plaintiffs also raised a reasonable inference that the shots were directed toward the inmates.
White conceded that he purposely "discharged a warning shot into the ceiling," rather than at the shot box. He claimed that, prior to this incident, he "had been told by [his] colleagues that shooting into the ceiling, as opposed to the shot box, decreased the chance of ricochet." R. 75-5,
In any event, this evidence, construed in favor of the plaintiffs, indicates that both White and Williams purposely fired into the ceiling rather than the shot box. If the jury determines that the shots were directed at the ceiling instead of toward the inmates, the jury must also assess the credibility of White's purported reason for his choice. Williams has yet to explain why he did not fire into the shot box. Negligence (even gross negligence) is not actionable but neither defendant has claimed that he mistakenly missed the shot box. A jury could conclude that purposely shooting toward the inmates or into the ceiling of a crowded dining hall rather than the shot box "evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321, 106 S.Ct. 1078.
Moreover, purposely avoiding the shot box served no penological purpose. That is, a warning shot aimed at the shot box fulfills the purpose of a warning shot, and no additional penological value is gained by purposely avoiding this safety device, again giving rise to an inference of malice and sadism. See Fillmore, 358 F.3d at 504. Aiming a warning shot into the shot box was the course for the guards if the purpose of the shot was a good faith effort to restore order. As the plaintiffs argue, purposely avoiding the shot box gives rise to an inference that the guards "did not want the buckshot caught." Opening Brief at 26.
There are a number of contested issues of material fact that preclude the entry of summary judgment at this stage. To summarize, a finder-of-fact must first determine whether the guards intended to hit the inmates with buckshot when they discharged their shotguns over the crowded dining hall, a calculus that depends in part on the disputed direction of fire. Whether the guards fired in the direction of the inmates or at the ceiling, there are genuine disputes of material fact for virtually every factor in the Supreme Court's five-part test, and we must vacate the judgment and remand for further proceedings.
The facts, construed in favor of the plaintiffs, support an inference that the defendants acted maliciously and sadistically rather than in good faith to restore order. If the jury found both that the brawling inmates were subdued before the shots were fired and that the defendants perceived as much, then the jury could find that by purposely discharging shotguns toward the crowd or into the ceiling (rather than toward the shot box), the defendants acted maliciously and sadistically for the purpose of causing harm, and did so at a time when there was no need for any force. The jury would have to focus on what the defendants could see and actually did see before they discharged their firearms. But on this record, we cannot rule out the possibility that the defendants saw that the fight was over, and that the combatants had been separated and subdued before the shots were fired. Failing to accurately depict the event in official reports and failing to aim for the very device intended to protect bystanders are
We acknowledge that the Supreme Court called for deference to prison officials making split-second decisions during disturbances. But a jury must determine whether the shots were fired during an ongoing struggle that threatened staff and other prisoners, or after the struggle was over. Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078. See also Lewis, 581 F.3d at 478 (although it is not difficult to imagine any number of scenarios that would justify the immediate and unadvertised use of summary force, where the inmate's version of the facts calls into question the guard's state of mind at the time force is applied, summary judgment is not appropriate). And a jury must determine why the officers chose to fire toward the crowd or into the ceiling rather than the shot box. In short, there are significant factual disputes that affect the analysis of every one of the five Whitley factors. We may not simply credit the claims of White and Williams that they believed the shots were necessary to restore order and defer to that claim when there is evidence that appears to contradict their assertion of good faith. See McGreal v. Ostrov, 368 F.3d 657, 677 (7th Cir. 2004) ("It is rarely appropriate on summary judgment for a district court to make a finding on state of mind."); Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985) ("`Summary judgment is notoriously inappropriate for determination of claims in which issues of intent, good faith and other subjective feelings play dominant roles.'") (quoting Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 185 (8th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977)). Summary judgment is not appropriate when there is evidence in the record that could support a reasonable jury finding that the defendants acted maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to restore order. Anderson, 477 U.S. at 255-56, 106 S.Ct. 2505; Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078.
VACATED AND REMANDED.
Barrett, Circuit Judge, dissenting.
As the plaintiffs briefed and argued this case, they would have lost it. They argued that the defendants violated the Eighth Amendment by discharging their weapons into the ceiling, rather than into the shot box, immediately after the fight had been broken up and there was no plausible need for that use of force. But they did not argue—and had no evidence to prove— that the defendants intentionally hit anyone. That deficit should have been fatal, because if the officers did not intend to hit anyone, they could not have done so "maliciously and sadistically," as Whitley v. Albers requires. 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance. In the context of prison discipline, however, "deliberate indifference" is not enough.
The Supreme Court has drawn a clear distinction between the standard applicable to claims challenging the conditions of confinement and the standard applicable to claims challenging the use of excessive force. In Farmer v. Brennan, it explained
The Court emphasized, however, that "`application of the deliberate indifference standard is inappropriate' in one class of prison cases: when `officials stand accused of using excessive physical force.'" Id. at 835, 114 S.Ct. 1970 (citation omitted); see also Whitley, 475 U.S. at 320, 106 S.Ct. 1078 (holding that the "deliberate indifference" standard does not apply in the context of prison security). In that context, "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 discipline or maliciously and sadistically for the very purpose of causing harm.'" Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (citation omitted). The Court has described this as a "very high state of mind" requirement—one much higher than the criminal recklessness necessary to show deliberate indifference. Farmer, 511 U.S. at 836, 114 S.Ct. 1970. The Whitley factors are designed to evaluate this "very high state of mind" by smoking out why the guard inflicted harm: was it to maintain discipline or for the satisfaction of hurting the prisoner? A guard who injures a prisoner by using force in the absence of a reasonable belief that a threat exists and without any effort to temper the severity of the force can be thought to knowingly will "the unjustified infliction of harm." Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (emphasis added). In other words, those circumstances support an inference that the guard acted in extreme bad faith rather than "in a good faith effort to maintain or restore discipline." Id. at 320, 106 S.Ct. 1078.
An inmate cannot satisfy the "malicious and sadistic" standard without showing that a guard intended to hit or harm someone with his application of force. After all, if the guard did not intentionally apply force to a prisoner, how could he have had a malicious and sadistic intent to cause him pain? In the absence of an intent to exert force on someone, there is nothing for the Whitley factors to probe.
Faced with this hole in the plaintiffs' case, the majority gives them an assist by changing the case. It offers two theories of why the plaintiffs can show that the guards intended to shoot the inmates. First, it insists that the guards might have shot directly into the crowd of inmates, rather than at the ceiling. Second, it suggests that the guards might have intentionally tried to hit the inmates by bouncing buckshot off of the ceiling. Yet the plaintiffs did not raise the first argument at all before us, and the second argument consists of one oblique sentence in their brief. And in any event, there is insufficient evidence in the record to permit a reasonable juror to draw either conclusion.
In the district court, the plaintiffs relied on the hearsay testimony of two other inmates to support the claim that the guards shot directly into the crowd. The defendants, in contrast, swore in their affidavits that they aimed at the ceiling. The district court resolved that issue against the plaintiffs. It stated:
Memorandum Opinion and Order at 12 (record citations omitted).
The plaintiffs have not challenged either the district court's evidentiary ruling or its conclusion that the plaintiffs had failed to create a factual dispute on this issue. That was a prudent choice. The district court's resolution of the hearsay issue was plainly correct, and without that testimony, the plaintiffs have no evidence that the officers shot into the crowd. It bears emphasis that this is so even if the officers lied in their affidavits about the direction of the shots. A plaintiff cannot discharge her burden simply by tearing the defendant's case down; "[i]nstead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Although the plaintiffs do not ask us to reverse this ruling, the majority, reading between the lines of the brief, maintains that "the plaintiffs' arguments ... encompass
As for the claim that the guards indirectly aimed at the plaintiffs by intentionally bouncing buckshot off the ceiling and into the crowd: this too is an argument that the plaintiffs do not develop and that the evidence does not support. To be sure, the plaintiffs contend that the guards fired into the ceiling and that the buckshot then ricocheted and hit them. But to show that the guards intentionally shot them—as opposed to recklessly disregarding the risk that the buckshot would ricochet—the plaintiffs needed to introduce some evidence that guards were intentionally, albeit indirectly, aiming to hit them.
The most that the plaintiffs say to support a "deliberate ricochet" theory is that "a reasonable jury could [ ] 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." The guards' failure to hit the shot box is certainly evidence in the plaintiffs' favor. But without any evidence of how likely ricochet was from the ceiling, the comparatively lower risk of ricochet from the shot box would not permit a reasonable jury to find that the officers pinballed buckshot off the ceiling with the intent to hit a prisoner.
If the plaintiffs could win by showing that the guards recklessly put them at risk by firing warning shots into the ceiling after the fight on the floor was under control, I would agree that they could survive summary judgment. But because that is not the standard, I respectfully dissent.