MANION, Circuit Judge.
While incarcerated for burglary, Darrin Gruenberg seized a set of keys from a prison security guard and swallowed them. He was taken to a hospital, where an x-ray showed that the keys were lodged in his abdomen. A physician told the prison officials that Gruenberg would probably pass the keys naturally within five days. They returned him to the prison and kept Gruenberg naked and in restraints for five days until he passed the keys. After five
On April 19, 2006, a security officer at Waupun Correction Institution ("Waupun") was administering medication to a prisoner, Darrin Gruenberg,
This set off a security alert in the prison, and the warden was immediately notified. Gruenberg was taken to the emergency room at Waupun Memorial Hospital for x-rays to determine the location of the keys. The x-ray confirmed that they were in his abdomen. The physician who treated Gruenberg believed that the keys would pass through his system within five days if Gruenberg took medication to help them pass. Gruenberg agreed to take the medication, and was returned to Waupun.
The warden, the prison's medical staff, and the prison's security staff developed a protocol for Gruenberg until the keys passed through his system. Gruenberg was placed in Waupun's Health and Segregation Complex ("HSC"), the unit that houses inmates with pending disciplinary hearings for rule violations, who have been found guilty of rules violations, or who are in administrative confinement. During his confinement in the HSC, which lasted five days, he was kept naked and restrained for approximately 22 to 23 hours per day. Specifically, Gruenberg was restrained in a chair during the day for twelve hours, and restrained to a bed for twelve hours during the evening.
During the five-day period, Gruenberg complained of being cold and repeatedly asked for a blanket.
The security staff checked on Gruenberg every 15 minutes while he was restrained, and nurses from the prison's Health Services Unit checked his condition every four hours. The HSC's clinical staff also saw him regularly. All told, during the five-day period Gruenberg was restrained he was checked by nurses 31 times and assessed by the clinical staff nine times. He was also visited by the Waupun Psychological Services Staff each day, who noted in several reports that Gruenberg was frustrated by the situation but remained cooperative.
By April 24 (the fifth day), Gruenberg was experiencing pain in his lower spine, tailbone, buttocks, and joints. He developed cuts and raw skin on his wrists and ankles from the restraints. He was taken to the hospital for another x-ray, which revealed that the keys had not moved from his abdomen. The prison staff then determined that Gruenberg no longer needed to be restrained because it was unlikely that he would be able to pass the keys naturally. He was placed in a "dry cell" in the prison's Health Services Unit (a dry cell being one in which the water has been turned off so that the toilet does not flush). The health services staff could monitor Gruenberg in this cell and, being isolated, it was impossible for Gruenberg to pass the keys to another inmate if he were to expel them naturally. Additional security staff were assigned to sit outside Gruenberg's cell to monitor his bowel movements to determine if the keys passed.
The keys did not pass, and on April 26, Gruenberg was again taken to the hospital where he underwent an endoscopy and colonoscopy to remove the keys. The endoscopy procedure successfully removed two of the keys, but the third key (the padlock key) remained in his body. Finally, on May 4, Gruenberg passed the remaining key naturally.
Gruenberg filed a pro se suit against some 25 staff members and officials at Waupun on May 5, 2009, asserting that the defendants violated his Eighth and Fourteenth Amendment rights under 42 U.S.C. § 1983. Gruenberg also filed a motion requesting the appointment of counsel. On August 24, 2009, the district court denied Gruenberg's request for counsel, finding that Gruenberg demonstrated his "ability to petition this court for redress of his grievances." On December 17, 2009, the defendants filed a motion for summary judgment, and on September 30, 2010, the district court granted summary judgment in favor of the defendants on all claims. The district court ruled that a trier of fact could find that Gruenberg's Eighth Amendment rights were violated, but held that the doctrine of qualified immunity shielded the defendants from suit. Gruenberg's Fourteenth Amendment procedural due process claim was dismissed on the grounds that it was "better conceptualized under the Eighth Amendment," see Bowers v. Pollard, 345 Fed.Appx. 191, 196 (7th Cir.2009), not the Fourteenth Amendment. Gruenberg appealed in February 2011, and in June 2011 we determined that counsel
We review the district court's grant of summary judgment de novo. Int'l Union v. ZF Boge Elastmetall LLC, 649 F.3d 641, 646 (7th Cir.2011). In considering the district court's grant of summary judgment, we construe all facts and draw all inferences in favor of Gruenberg, and will affirm if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.
Gruenberg argues that because he was kept immobilized, naked, cold, and in pain for five days, the defendants deprived him of basic human needs and violated his clearly established rights under the Eighth Amendment. The defendants counter that the novelty of Gruenberg's situation and his past history of being a difficult prisoner necessitated restraining Gruenberg, that the unique circumstances presented by Gruenberg's situation demonstrate that none of the defendants could have been on notice that they were violating a clearly established constitutional right, and that the district court properly found that none of the defendants acted with deliberate indifference to Gruenberg's needs. Thus, they argue, the district court correctly applied qualified immunity.
We review the validity of a qualified immunity defense de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Qualified immunity shields government officials from liability under Section 1983 "for actions taken while performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th Cir.2000). It protects "all but the plainly incompetent or those who knowingly violate the law.... If officers of reasonable competence could disagree on the issue [of whether or not an action was constitutional], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). To defeat a claim of qualified immunity, Gruenberg must show that the defendants violated a constitutional right and demonstrate that the right in question was clearly established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Thus, when analyzing a qualified immunity defense, courts consider whether the alleged facts demonstrate a constitutional violation, and whether the constitutional right was clearly established. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A constitutional right is clearly established when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151; see also Estate of Escobedo v. Bender, 600 F.3d 770, 779 (7th Cir.2010) ("For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.") (quotations omitted).
Gruenberg claims that the defendants violated his constitutional right to be free from cruel and unusual punishment. Specifically, he argues that when the defendants restrained him naked for five days, they deprived him of basic human needs and thus violated his clearly established rights under the Eighth Amendment. To defeat the defense of qualified
Even if we were to find, at least in some context, that the conditions under which Gruenberg was confined for five days could have amounted to cruel and unusual punishment, the defendants here are entitled to qualified immunity. As Judge Griesbach reasoned in his opinion, "[t]his case presents a classic situation in which the doctrine [of qualified immunity] is required to shield officials acting in good faith in responding to a unique situation that involved both inmate health and prison security." While the condition in which Gruenberg was held was undoubtedly uncomfortable, there is no evidence in the record that demonstrates that any member of the prison staff showed "deliberate indifference" to Gruenberg's health or safety. In fact, the record shows otherwise — Gruenberg was monitored constantly to ensure that he was not in danger, and was visited 31 times by nurses and nine times by the prison's clinical staff. The prison's psychological staff also visited Gruenberg several times to check on his mental health. As Judge Griesbach rightly noted, such frequent medical and mental health monitoring is inconsistent with claims that the defendants intentionally or recklessly subjected Gruenberg to cruel and unusual punishment.
Furthermore, instead of forcing Gruenberg to undergo immediate surgery to remove the keys (a decision which could have raised more serious Eighth Amendment concerns than presented here), the defendants relied on the advice of a physician who thought that Gruenberg would pass the keys within five days. And while keeping Gruenberg in restraints for five days ultimately proved ineffective in light of the fact that he had two of the keys removed later via a colonoscopy and the third passed naturally while he was held unrestrained in a dry cell, qualified immunity protects decisions made in the moment, when the benefit of hindsight is not available.
Thus, the defendants here faced what Judge Griesbach called an "unprecedented breach of security": an exceptionally disruptive prisoner with over 230 documented citations for misconduct who stole and then swallowed three critical security keys.
Gruenberg also raises a procedural due process claim under the Fourteenth Amendment, arguing that he has a liberty interest in avoiding being held in restraints for five days and that the defendants unconstitutionally deprived him of that interest when he was restrained without notice or an opportunity to be heard. In essence, Gruenberg argues that his restraint was punishment for swallowing the keys, and that he was deprived of the right to have a hearing before he was placed in restraints. The record is devoid of any evidence to support this claim, and in fact the record entirely supports the defendants' contention that placing Gruenberg in restraints was solely out of a concern for security.
Furthermore, we have found only two instances in which the Fourteenth Amendment's due process clause created a liberty interest in the context of a prison sentence: a transfer to a mental hospital, see Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), and the involuntary
Gruenberg also argues that he should be allowed to advance claims against the defendants under the Fourth Amendment and under the Fourteenth Amendment substantive due process clause. However, Gruenberg mentions these arguments for the first time on appeal. He concedes that he did not argue these issues because the district court refused to appoint counsel (see below). Nevertheless, "(i)t is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal." Domka v. Portage County, Wis., 523 F.3d 776, 783 (7th Cir.2008) (quotations omitted); see also Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir.1996) (issues that are not raised in the district court in response to a motion for summary judgment are waived on appeal). Furthermore, as we noted above, Gruenberg's claims are better addressed under the Eighth Amendment. Thus, Gruenberg's Fourth Amendment and Fourteenth Amendment substantive due process claims are barred.
Finally, Gruenberg argues that the district court abused its discretion when it denied Gruenberg's request for counsel. We review a district court's decision to deny the appointment of counsel under 28 U.S.C. § 1915(e)(1) for an abuse of discretion, but will reverse only "upon a showing of prejudice." Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir.2009). Gruenberg repeatedly requested counsel to advance his claims here, and the district court denied those requests, finding that, in light of the numerous pro se lawsuits Gruenberg had filed in the past, Gruenberg was competent to litigate his case. "An indigent civil litigant may ask the district court to request an attorney to represent him pro bono publico." Id. at 649. When a litigant requests counsel, the district court must ask (1) "has the indigent plaintiff made a reasonable attempt to retain counsel or been effectively precluded from making such efforts ..."; and if so, (2) "given the difficulty of the case, did the plaintiff appear competent to try it himself?" Id. at 654.
Gruenberg did attempt to seek counsel, apparently contacting eight different attorneys to represent him. When he was unable to find counsel, he petitioned the district court to appoint counsel, arguing that his mental health issues and lack of education precluded him from conducting discovery and from briefing a response to a summary judgment motion. The district court disagreed, holding that, despite Gruenberg's mental health issues, he was competent enough to represent himself effectively and to argue his case.
The district court noted that the facts here were not so complicated that a reasonable pro se litigant could not advance them, and that Gruenberg had filed numerous motions and declarations detailing what had happened to him and the relief he sought, belying his incompetence claim. In fact, the district court pointed out that Gruenberg's presentation of the case was significantly above the capabilities of the
For the foregoing reasons, we affirm the judgment of the district court. The defendants are entitled to qualified immunity on Gruenberg's Eighth Amendment claims. Gruenberg's procedural due process claim fails, and he is barred from raising Fourteenth Amendment substantive due process or Fourth Amendment claims on appeal. Finally, the district court did not abuse its discretion when it denied Gruenberg's request for counsel.
AFFIRMED.