indicate that the named prisoner was questioned about the matter or that any steps were taken to investigate the particular individual.
Lee also apparently indicated to the prison officials that the threats resulted from his being a witness against one Dobson in a shooting incident. Apparently Lee was a witness in a case involving Dobson, but since no transcript was available it was impossible to determine whether Lee's testimony incriminated Dobson. Also no record was discovered of Dobson being in federal custody at the time. While the information on a link between the threats and the Dobson matter are not clear, they do tend to support the plaintiff's argument that he is in danger. See generally Defendants' exhibit Nos. 8 and 12.
An interesting fact which the defendants do not discuss is contained in the reply of a Mr. Putman (for Grzegorek) to the memorandum of Warden Wilkinson requesting a transfer of Lee to the United States Penitentiary at Leavenworth, Kansas. Defendants' exhibit No. 9. As has been indicated previously, Lee is a Category 12 CMC. A Category 12 is watched to prevent his being confined with certain other prisoners for their mutual protection. Lee was to be separated from two other prisoners, Julian Wilson # 02276-100 and Darrell Johnson # 17209-037. Defendants' exhibit No. 8 at 2. Putman said the following in his memorandum of February 11, 1982: "A separatee of Mr. Lee, one Darryl Johnson, Reg. No.: 17209-037 is no longer in Federal custody, having been removed from USP, Lewisburg on January 2, 1982." Johnson was thus arguably present at USP-Lewisburg when the written threat against Lee occurred on or about June 30, 1981.
The staff at USP-Lewisburg has developed the opinion that the note was written by Lee himself. The defendants do not offer much in the way of facts as to why the staff reached this conclusion. One reason for the conclusion is a statement by the plaintiff that he would force the prison staff to transfer him back to FCI-Memphis. Defendants' brief in support of motion for summary judgment at 3. It is not clear what other circumstances the staff relied upon in reaching their conclusion.
The incident of March 4, 1982 in which Lee received a facial laceration has also been differently interpreted by the parties. Lee pictures the incident as an assault which confirms his need for protection. The defendants are not sure what occurred, but claim that their investigation of the event has been made impossible by Lee's refusal to name the other inmate involved.
The physician's assistant who treated Lee makes an interesting comment in the report he filed. He said "Patient was asked numerous times as to how it happened, to which he replied that he did not know. It is my impression after examining the patient that he was assaulted by another person. He did not have any contusions or abrasions to either hand, which would reinforce my impression." Defendants' exhibit No. 10.
Lee alleges that he was questioned about the assault while he was being treated and that he responded that he did not see who assaulted him. He goes on to allege that no further investigation was made. The defendants assert that Lee said he did not know how the injury occurred and never admitted to the staff that he was assaulted or who might have assaulted him. There appears to be substantial disagreement between the parties as to what happened and whether the investigation was satisfactory. The defendants also argue that the injuries might have been the result of a fight instigated by the plaintiff. The report of the physician's assistant tends to mitigate against this understanding of the event.
An eighth amendment claim which is based on the failure to provide security for a certain inmate must allege a deliberate indifference on the part of the prison officials. Redmond v. Baxley, 475 F. Supp. 1111, 1117 (E.D.Mich.1979). See Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976). "Deliberate indifference" as used by the Supreme Court denotes "a species of recklessness or callous neglect." 475 F. Supp. at 1118.
In the instant case, the prison officials have taken a number of steps to protect Lee. When Lee informed the prison officials that he had received a threatening note, he was placed in administrative segregation. While in administrative segregation he received numerous incident reports. He was placed in disciplinary segregation as a result of these reports. On March 4, 1982 Lee was allegedly assaulted while he was in disciplinary segregation. He was given medical treatment for the injuries sustained and apparently has remained in disciplinary segregation since the assault. The prison officials have for the second time recommended that Lee be transferred to another institution. A decision on that second recommendation is not a part of the record.
These facts should be compared to the allegations in Little v. Walker, 552 F.2d 193 (7th Cir.1977). Judge Cummings, writing for the court, described the allegations as follows:
According to the complaint, on September 6, 1973, through defendants' failure to afford reasonable protection, cell-house B was seized by a group of rebellious inmates for nine hours while gang rapes were inflicted on other inmates. Plaintiff's personal property, including legal materials, was destroyed and confiscated. After the rebellion, defendants nevertheless continued to confine plaintiff in the same area with those inmates in disciplinary segregation who had instigated the uprising. Id. at 195.
Clearly the actions of the prison officials in the instant case are not comparable to the thoughtless insensitivity of the prison officials in the Little case.
A case which appears on the surface to find an eighth amendment violation on less drastic facts than Little is Withers v. Levine, 449 F. Supp. 473 (D.Md.1978). Withers was a new arrival at the Maryland House of Correction. He was placed in a two-man cell with another inmate. Withers was sexually assaulted by his cellmate. The problem in the case came from the fact that no procedure existed to evaluate the placement of new arrivals. Id. at 477-78. The court granted injunctive relief in the Withers case to require the development of a systematic, preliminary screening process as to the compatibility of new cellmates. Id. at 478.
Lee's complaint in the present case does not relate to the lack of a procedure at the prison which might have prevented the threatening note or the assault. He has in fact had numerous opportunities to present his case to the prison officials and according to the facts has been protected as much as possible since the first threats. Lee was allegedly assaulted while in disciplinary segregation. The prison officials returned him to disciplinary segregation after he received treatment for the injuries sustained in the assault. Their alternatives were, however, limited. Lee would not return to the general population. His continuing disciplinary problems made administrative segregation an inadvisable place to house him. Disciplinary segregation was arguably the best choice. It certainly was not a selection which showed deliberate indifference.
The facts as alleged by Lee do not support an eighth amendment claim. The actions or inactions of the prison officials are not recklessness or callous neglect. Any shortcomings are at the most negligence. Negligence is not sufficient to create a constitutional deprivation. Penn v. Oliver, 351 F. Supp. 1292, 1294 (E.D.Va.1972). See Redmond v. Baxley, 475 F. Supp. 1111, 1117 (E.D.Mich.1979). Summary judgment will be granted in favor of the defendants on the claims under the eighth amendment.
In his counterstatement of material facts, Lee alleges that Bureau of Prison policy statement 5100.1 was violated because the designating teletype from the regional designator did not indicate a good reason for his redesignation to USP-Lewisburg. Judge Muir of this district considered the issue of whether the policy statements of the Bureau of Prisons create liberty interests. He said:
The policies of the Bureau of Prison, while relevant on the question of the reasonableness of Respondent's decision, do not give prisoners a liberty interest to enforce execution of those policies. Except under very unusual situations, executive guidelines and policy statements such as those at issue do not create liberty interests. McCaskill v. U.S., No. 82-0905 at 4 (M.D.Pa. Mar. 7, 1983).