Christopher J. Scarver v. Jon Litscher

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2999
C HRISTOPHER J. S CARVER ,
Plaintiff-Appellant,
v.
J ON L ITSCHER , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01-C-0497-C—Barbara B. Crabb, Chief Judge.
____________
A RGUED D ECEMBER 8, 2005—D ECIDED J ANUARY 18, 2006
____________
Before B AUER , P OSNER , and K ANNE , Circuit Judges.
P OSNER , Circuit Judge. The plaintiff in this prisoner’s civil
rights suit, Christopher Scarver, contends that officials of
the Wisconsin Secure Program Facility—nicknamed
“Supermax”—violated his constitutional right not to be
subjected to cruel and unusual punishment. (“Supermax”
actually is a generic term for “facilities or units designated
for inmates who have been disruptive or violent while
incarcerated and whose behavior can be controlled only by
separation, restricted movement, and limited direct access
to staff and other inmates, thereby excluding routine
disciplinary segregation, protective custody, or other

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2 No. 05-2999
routine purposes.” Leena Kurki & Norval Morris, “The
Purposes, Practices, and Problems of Supermax Prisons,” 28
Crime & Justice 385, 388 (2001).) The district judge, after
dismissing several of the defendants, held that a jury could
reasonably find that the remaining ones had violated
Scarver’s constitutional right by subjecting him to condi-
tions of confinement that had significantly aggravated his
mental illness. But she granted summary judgment for these
defendants anyway on the ground of qualified immunity:
settled law did not, she ruled, establish the unlawfulness of
their behavior. We address the merits, and will not have to
consider immunity.
Scarver is schizophrenic and delusional, and, unlike most
schizophrenics, extremely dangerous. He has murdered
three people, two of them in prison in 1994. One was the
notorious Jeffrey Dahmer—the cannibal murderer of 17
young men. Scarver, who hears voices constantly, claimed
that God had ordered him to commit the murders. At the
time, he was in Wisconsin’s Columbia Correctional Institu-
tion, where he twice attempted suicide, once by setting fire
to himself. The year after the two murders, he was trans-
ferred (after a brief sojourn in the U.S. Medical Center for
Federal Prisoners in Springfield, Missouri, for a psychiatric
evaluation) to the federal prison at Florence, Colorado, the
most secure prison in the federal system. The Wisconsin
prison authorities didn’t think they had a secure enough
prison to protect inmates and staff from him.
Scarver spent five years in the federal prison at Florence,
and was surprisingly well behaved. He was given audio-
tapes to help quiet the voices in his head, worked, and was
permitted daily contact with other inmates in the prison’s
recreation yard, all without incident. At the end of this for
him happy interlude he was returned to Wisconsin at the
request of one of the defendant officials and interned in the

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No. 05-2999 3
then-new Supermax facility in Boscobel, Wisconsin. The
defendants believed that this facility was secure enough to
hold him. But after three years there, and after the district
court had determined in a preliminary-injunction hearing
that “conditions at Supermax are so severe and restrictive
that they exacerbate the symptoms that mentally ill inmates
exhibit” and that “many of the severe conditions serve no
legitimate penological interest; they can only be considered
punishment for punishment’s sake,” Jones ‘El v. Berge, 164 F.
Supp. 2d 1096, 1116-17 (W.D. Wis. 2001) (see 374 F.3d
541 (7th Cir. 2004), for a subsequent stage of the case),
Scarver was sent back to Colorado, though this time to a
state prison, where he is being allowed to mingle with other
inmates just as he was at the federal prison in Florence. The
staff at the state prison does not regard him as a manage-
ment problem. However, he had been there for only a brief
time before the record of this case closed. His complaint is
about his treatment at Supermax.
The facility has several degrees of restrictiveness, called
“levels.” Inmates spend their first 30 days on Level One,
where they are locked in windowless single-person cells for
all but four hours of the week; the four hours are for
recreation in a small windowless room not much larger than
the cells. The cells are illuminated 24 hours a day so that the
guards can watch the inmates, although they glance in only
intermittently. The cells are not air-conditioned, and so,
being windowless, they become extremely hot during the
summer—the heat index sometimes rises above 100 degrees,
and often above 90. The inmates are not allowed to have
mechanical or electronic possessions, such as a television
set, a clock, or even a watch—just one religious text, one box
of legal documents, and 25 personal letters.
The inmate who behaves himself during his initial 30-day
stay at Level One is transferred to Level Two, where he has
slightly better conditions and more privileges; and from

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4 No. 05-2999
there he can move by successive promotions based on good
behavior to Level Five and then out of Supermax altogether,
to a less restrictive prison, though given Scarver’s history it
is doubtful whether he could have progressed that far no
matter how well he had behaved. And in any event men-
tally ill prisoners have great difficulty behaving and
therefore getting promoted, or if promoted (rarely beyond
Level Two) staying at their new level, since misbehavior
leads to demotion; so they end up spending most of their
time at Level One.
The heat of the cells during the summer interacted with
Scarver’s antipsychotic drugs to cause him extreme discom-
fort; antipsychotic medication puts a person at risk of heat
stroke, dangerously low blood pressure, and a rare and
often fatal heat-related disease called neuroleptic malignant
syndrome (NMS). The constant illumination of the cells
disturbs psychotics. And without audiotapes or a radio or
any other source of sound Scarver could not still the voices
in his head. He attempted suicide twice, once by taking an
overdose of his antipsychotic pills and the other time by
swallowing a large number of Tylenol tablets. On several
occasions he banged his head against the cell wall for
protracted periods, telling a prison psychologist that he
wanted to break his head open so that the voices could
escape. He also cut his head with a razor in an effort to cut
out whoever or whatever was talking and moving around
inside his head. On another occasion he cut his wrists. His
symptoms would worsen when he stopped taking his
antipsychotic medication, which he would do when the heat
of his cell interacted with the medication to cause him
serious distress.
It is a fair inference that conditions at Supermax aggra-
vated the symptoms of Scarver’s mental illness and by
doing so inflicted severe physical and especially mental

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No. 05-2999 5
suffering. He was closely watched and so the defendants
were well aware of his problems. Their reactions were at
times bizarre, as when they denied him a promotion to a
higher level because “the incident of you banging your head
on the wall and other bizarre behavior is not appropriate.
We highly recommend that you cooperate w/ clinical
services so that advancement can be considered in the
future.” He was banging his head because he is crazy, not
because he was unwilling to cooperate.
There is no evidence, however, that defendants knew
when they brought Scarver back from Florence because they
now had a secure enough facility to house him safely that he
would be at risk of severe distress. Probably they should
have known, but that would make them guilty merely of
negligence and not of deliberate indifference (the mental
state required to establish an Eighth Amendment violation),
which would require proof that they were conscious of the
risk. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994); Case v.
Ahitow, 301 F.3d 605 (7th Cir. 2002). Of course they soon
realized that Scarver was in serious distress because of his
mental illness. But there is no indication that they attributed
this to the heat of the cell, the constant illumination of the
cell, or the denial of audiotapes or similar equipment—no
evidence in short that they realized the harm that the
conditions of his confinement were inflicting on him. They
were not indifferent to his welfare. They gave him constant
psychiatric attention, plied him with antipsychotic medica-
tion, and through close surveillance thwarted his two
suicide attempts. They did not know what more to do.
There is no indication that they had detailed knowledge of
the program at Florence for homicidal maniacs (nor has
Scarver’s lawyer favored us with a description of it) and
they state without contradiction that Florence had not
forwarded any of its records of Scarver’s conduct there to

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6 No. 05-2999
the Wisconsin authorities, who may not have known that he
had behaved better at Florence than he was behaving at
Supermax. The warden of Supermax had, it is true, inter-
viewed Scarver at Florence and had learned a little about
him from the warden there; but while the warden did not
mention any misconduct by Scarver he did comment,
enigmatically, that “Mr. Scarver has, has a dark side.”
The Supermax officials might have been expected eventu-
ally, at some point during Scarver’s three years there, to
realize that the heat, the constant illumination, and the lack
of sound were adverse conditions that the medication
couldn’t completely offset (especially given the interaction
of the medication with the heat) and that created a substan-
tial risk of causing Scarver serious physical and mental
suffering. There is an extensive literature on the effect of
such conditions, particularly of isolation, on mentally
disturbed prisoners. E.g., Jennifer R. Wynn & Alisa
Szatrowski, “The Modern American Penal System: Hidden
Prisons: Twenty-Three-Hour Lockdown Units in New York
State Correctional Facilities,” 24 Pace L. Rev. 497, 512-14
(2004); Craig Haney, “Mental Health Issues in Long-Term
Solitary and ‘Supermax’ Confinement,” 49 Crime & Delin-
quency 124 (2003); Stuart Grassian, “Psychopathological
Effects of Solitary Confinement,” 140 Am. J. Psychiatry 1450
(1983), and references in Madrid v. Gomez, 889 F. Supp. 1146,
1231 (N.D. Cal. 1995). Some of the literature postdates
Scarver’s detention in the Supermax and thus is irrelevant
to what the defendants knew when he was there, but much
of it is earlier. Although we know from the Jones ‘El opinion
that the defendants had a copy of Grassian’s article,
Scarver’s lawyer has not contested the defendants’ denial
that they knew that the conditions of confinement at the
Supermax prison would aggravate Scarver’s mental disease
and has not argued that the literature was so widely

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No. 05-2999 7
disseminated in correctional circles that it is a fair inference
that despite their denials they did know that.
What is more, the treatment of a mentally ill prisoner who
happens also to have murdered two other inmates is much
more complicated than the treatment of a harmless lunatic.
Cf. Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th Cir.
1995). Measures reasonably taken to protect inmates and
staff from him may unavoidably aggravate his psychosis; in
such a situation, the measures would not violate the Consti-
tution. It was when Scarver was permitted to mingle with
other inmates at the Columbia Correctional Institution that
he killed two of them. Maybe there is some well-known
protocol for dealing with the Scarvers of this world, though
probably there is not (we have found none, and his lawyer
has pointed us to none); fortunately they are few in number.
Scarver has presented no evidence concerning the tech-
niques that the two prisons in Colorado use to allow a
dangerous prisoner to mingle with other inmates without
endangering them or staff. Dahmer, who doubtless would
have been executed in any state that retains the death
penalty, was a unique target. The other inmate whom
Scarver murdered was not; the motive there may have been
that the inmate had tried to pin his crime on a black man
(Scarver is black). Race may also have played a role in
Scarver’s decision to murder Dahmer, many of whose
victims were black. Other white inmates—at least those
whom Scarver perceives to have wronged blacks—might
also be at risk of being attacked and perhaps killed by him.
The murderous ingenuity of murderous inmates, espe-
cially in states such as Wisconsin that do not have capital
punishment, so that inmates who like Scarver are already
serving life terms are undeterrable, cannot be overesti-
mated. See, e.g., Schlup v. Delo, 513 U.S. 298, 301-02 (1995);
Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir. 2005); United

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8 No. 05-2999
States v. Tokash, 282 F.3d 962, 965 (7th Cir. 2002); Bruscino v.
Carlson, 854 F.2d 162, 164 (7th Cir. 1988); United States v.
Fountain, 768 F.2d 790 (7th Cir. 1985); United States v.
Silverstein, 732 F.2d 1338, 1341-42 (7th Cir. 1984); Allen v.
Woodford, 366 F.3d 823, 831-33 (9th Cir. 2004); Shrader v.
White, 761 F.2d 975, 982 (4th Cir. 1985). Prison authorities
must be given considerable latitude in the design of mea-
sures for controlling homicidal maniacs without exacerbat-
ing their manias beyond what is necessary for security. It is
a delicate balance. “Federal judges must always be circum-
spect in imposing their ideas about civilized and effective
prison administration on state prison officials. The Constitu-
tion does not speak with precision to the issue of prison
conditions (that is an understatement); federal judges know
little about the management of prisons; managerial judg-
ments generally are the province of other branches of
government than the judicial; and it is unseemly for federal
courts to tell a state . . . how to run its prison system.” Duran
v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985); see also Bell v.
Wolfish, 441 U.S. 520, 547 (1979).
It may be necessary to separate measures taken to protect
inmates and staff from a homicidal inmate from condi-
tions that inflict serious suffering without any security
rationale. (We say “may be” because the two types of
condition may not be separable in practice.) Had the
defendants realized the risk of serious harm to Scarver that
was created by extreme heat (interacting with his
antipsychotic medication) and the denial of audiotapes,
their decision to disregard that risk probably could not have
been justified by his dangerousness. Those aspects of his
confinement did not protect other inmates or guards from
Scarver or Scarver from himself, although the
heat—conceivably even the prohibition of audiotapes—may
have been an indirect result of trying to prevent prisoners
from fashioning weapons from fixtures, perhaps including

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No. 05-2999 9
air-conditioning vents and control, or from other materials,
in the cell. The constant illumination of his cell may have
had a security rationale as well; it reduced the likelihood
that Scarver would use the cloak of darkness to attempt
suicide or make a weapon of some sort. In any event, as we
noted earlier, Scarver has failed to cite evidence to overcome
the defendants’ denials that they knew these conditions
were making his mental illness worse.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-06

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