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Seventh Circuit Dissent: “A Dog Would Have Deserved Better Treatment”

by Derek Gilna

William A. Miller, incarcerated at FCC Terre Haute, a Bureau of Prisons (BOP) facility in Indiana, entered prison with a serious health problem – a thalamic brain tumor that required a lower bunk assignment, or “pass,” issued by prison medical officials. He was initially given a lower-bunk pass, but for reasons unknown, a year later was assigned an upper bunk. While in that bunk he fell and fractured his back.

Before BOP prisoners can obtain judicial relief they must go through the administrative remedy process and file what are known as “BP’s.” After his complaints to lead guard Gary Rogers went unanswered, Miller filed administrative remedies, which were all denied, then brought a Bivens action that named Rogers, Warden Helen Marberry and a nurse as defendants.

Rogers and Marberry moved for summary judgment, arguing that neither was personally responsible for issuing the lower bunk pass that would have prevented Miller’s debilitating fall (nor was the nurse responsible). The district court granted summary judgment to the defendants, dismissing the case, and Miller died in June 2016 while the litigation was pending.

The Seventh Circuit affirmed the dismissal on January 30, 2017, but not without controversy. According to the majority opinion, “Miller has not sued the people responsible for bunk assignments. Miller supposes that it is enough to tell someone about a problem; anyone told must fix the problem, he insists.... To get anywhere, Miller needed to establish that Rogers and Marberry violated his constitutional rights – which for a medical claim under the Eighth Amendment means knowing of (or being deliberately indifferent to) a serious medical condition, then not taking minimally competent steps to deal with that condition.”

The dissent was not impressed with that argument, in a case where the BOP was apparently negligent and Warden Marberry took no action even though she saw Miller in his upper bunk wearing a neck brace, and he repeatedly told her he needed a lower-bunk pass.

“Whether Marberry was aware of the serious health risk to Miller from being assigned to an upper bunk is an open question that needs to be addressed at a trial,” Judge Richard Posner stated, in dissent. “The record contains facts that support Miller’s claim that he had a serious medical need and that the defendants knew it and did nothing despite their responsibilities.”

He added, “I note that the Bureau of Prisons is required by law to ‘provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States....’ The Bureau failed in this case.”

In conclusion, Judge Posner – who recently announced his retirement from the federal bench – wrote that “Both Rogers and Marberry were ... complicit in [Miller’s] suffering and may have hastened his death. A dog would have deserved better treatment.” See: Estate of Miller v. Marberry, 847 F.3d 425 (7th Cir. 2017), rehearing denied, rehearing en banc denied

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Related legal case

Estate of Miller v. Marberry