In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3620

JOHN TOWNSEND,

Plaintiff-Appellant,

v.

SARAH COOPER, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 2:10-cv-00347-PJG — Patricia J. Gorence, Magistrate Judge.

ARGUED MAY 31, 2013 — DECIDED JULY 17, 2014

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. John Townsend was a prisoner at the

GreenBay CorrectionalInstitution (“GBCI”), a facilityoperated

by the Wisconsin Department of Corrections (“DOC”).

Townsend sued a number of officials at the Green Bay facility

for violations of his civil rights under the Eighth and

Fourteenth Amendments. The lower court granted summary
2 No. 12-3620

judgment in favor of the defendants. We affirm in part and

vacate and remand in part.

I.

On appeal from a grant of summary judgment, “[t]he

evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). We must therefore credit

Townsend’s version of the facts at this stage. GBCI has

procedures in place for inmates who violate prison rules. See

Wis. Admin. Code (the “Code”) §§ DOC 303.01 et seq. (the

“rules governing inmate conduct under this chapter describe

the conduct for which an inmate may be disciplined and the

procedures for the imposition of discipline.”). The extensive

procedures that follow section DOC 303.01 govern how prison

officials may enforce discipline in Wisconsin prisons. See e.g.

Wis. Admin. Code. §§ DOC 303.69 & 303.70 (describing

procedures for major penalties including adjustment

segregation, programsegregationanddisciplinaryseparation).

See also R. 63-9 (GBCI Segregation Unit Handbook). 

The prison also has procedures for inmates who are

mentally ill and pose a danger to themselves or others. See Wis.

Admin. Code §§ DOC 311.01 et seq. That chapter provides “for

an involuntary or voluntary nonpunitive status to be used for

the temporary confinement of an inmate to ensure the inmate's

safety and the safety of others if the inmate is mentally ill and

dangerous, [or] is dangerous to himself or herself[.]” As with

disciplinary infractions, the Code provides extensive

procedures for placements for mental health reasons. See e.g.

Wis. Admin. Code § DOC 311.04 (“Mental health placement”).
No. 12-3620 3

The non-punitive status that GBCI employs is referred to as

“observation status,” a very restrictive status in which prison

staff remove any property that the inmate could use to injure

himself or others. See Wis. Admin. Code § DOC 311.14

(“Conditions of confinement while in observation”). For an

inmate bent on self-destruction, this could include almost any

property, and some Wisconsin inmates have proven morbidly

creative in their use of common objects to harm themselves. See

e.g. Bowers v. Pollard, 602 F. Supp. 2d 977, 981 (E.D. Wis. 2009)

(behavior action plan applied to mentally ill inmate who

repeatedly attempted to injure himself by inserting objects

such as the teeth of a comb, fingernails, a piece of a milk carton

and a piece of a mattress, into his penis). 

Townsend presented complex challenges to the staff at

GBCI because he suffered from significant mental illness and

also engaged in disruptive behavior. The resulting actions that

prison staff took to address his behavior were a blend of the

two approaches. As we will see, though, the hybrid approach

lacked procedural protections required by the due process

clause and sometimes resulted in living conditions that did not

meet the Eighth Amendment’s standard for the minimal

civilized measures of life’s necessities. Under the hybrid

approach, if an inmate at GBCI engages in “continual

disruptive, destructive, assaultive or self-harming behaviors”

and “regular measures” have “failed to correct the inmate’s

behavior,” the prison’s Segregation Review Committee

implements a Behavior Action Plan (“BAP”) for the inmate.

According to the defendants, a BAP is an individualized plan

that is designed to provide incentives for appropriate behavior.

An inmate on a BAP faces restrictions on his property and
4 No. 12-3620

privileges; good behaviorresults inrestoration of property and

privileges, and “unstable” behavior is met with more severe

restrictions. Although the prison characterizes a BAP as nonpunitive, it also cites as the source of authority for the BAP the

sections of the WisconsinAdministrative Code that provide for

“Major penalties: adjustment segregation,” and “Major

penalties: program segregation and disciplinary separation.”

See Wis. Admin. Code. §§ DOC 303.69 & 303.70. Whether the

BAP is punitive and whether it requires notice and an

opportunity to object is one of the disputed issues in the case

that we will address below. 

According to a prison psychologist, Townsend had

“multiple observation placements dating back to February

2004.” R. 63-11, at 2. These placements were based on threats

of self-harm and Townsend’s inability to “contract for safety.”

In February 2004, for example, while housed in the general

population, Townsend tried to hang himself from a light with

a bed sheet. Beyond being placed on observation status, the

record does not reveal how the prison responded to

Townsend’s February 2004 suicide attempt. In March 2005,

Townsend again told prison staff that he wanted to kill himself.

As a result, a prison psychologist, Dr. Steven Schmidt, placed

Townsend on observation status on March 17, 2005. During the

next three months, Townsend twice tried to kill himself and

repeatedly expressed suicidal desires. Prison psychologists Dr.

Todd Hamilton and Dr. Martha Breen-Smith regularly visited

Townsend during this period and adjusted his living

conditions to remove from his possession objects he could use

to harm himself. For example, aftertrying to hang himselffrom

a light fixture on May 24, 2005, his possessions were limited to
No. 12-3620 5

a blanket, a smock and a book. On May 26, he was released

briefly from observation status only to be placed back on that

status later that same day after again threatening to harm

himself. On June 2, he was released from observation status but

was found later with a sheet wrapped around his neck,

resulting in a return to observation that same day. A few

weeks later, when he removed a strip of Velcro from his smock

and stated an intention to use it to hang himself, he was given

a paper gown instead. At times, when staff deemed it safe, he

was allowed to shower and was given soap, a towel and

shower shoes for that purpose. Otherwise, while on

observation status, Townsend’s access to his property was very

limited.

In May 2005, in the midst of multiple placements and

releases from observation status, Dr. Schmidt conducted a

“Review for Mental Health Placement” forTownsend. R. 63-11,

at 1. Dr. Schmidt diagnosed Townsend as suffering from PostTraumatic Stress Disorder (“PTSD”). He noted that Townsend

had“multiple contacts with psychological services in the past,”

that he was generally cooperative and did not show signs of

psychotic symptoms “except one time.” He was at times

agitated and dysphoric, and he reported to prison

psychologists that events in the general population sometimes

triggered memories that led to him acting out. Dr. Schmidt 1

According to the National Institute of Mental Health, “PTSD develops

1

after a terrifying ordeal that involved physical harm or the threat of

physical harm.” Common symptoms of PTSD include re-experiencing the

initial trauma, which is sometimes triggered by words, objects, or situations

that are reminders of the event; avoidance, including both physically

(continued...)
6 No. 12-3620

noted in his report that Townsend had been placed on

observation status twice in May 2005 after telling staff that he

was depressed and wanted to hurt himself. Townsend had not

been prescribed any psychotropic medications. Dr. Schmidt

concluded that Townsend was looking for help, wanted to be

helped, and was motivated to work with the staff at the

Wisconsin Resource Center (“WRC”), a secure mental health

facility for prisoners. On May 18, 2005, Dr. Schmidt therefore

recommended an “urgent transfer” to the WRC for Townsend.

But Townsend was not transferred to that facility. Although

the record does not reveal the reason that Dr. Schmidt’s urgent

request and recommendation was not carried out, at oral

argument, counsel for the defendants stated that there was

another inmate at the WRC with whom Townsend could not

be placed. Instead, on June 21, 2005, just weeks after Dr.

2

Schmidt’s urgent recommendation, Townsend was released

 (...continued) 1

staying away from reminders and also emotional symptoms such as

numbness, guilt and depression; and hyperarousal, including being easily

startled, feeling tense or “on edge,” having difficulty sleeping, and having

angry outbursts. Recognized treatments for PTSD include psychotherapy

and medication. See http://www.nimh.nih.gov/health/topics/post-trau

matic-stress-disorder-ptsd/index.shtml (last visited June 20, 2014). 

In response to the court’s questions, counsel could not explain why the 2

presence of a single inmate with whom Townsend had an unspecified

conflict precluded him entirely from placement at the WRC. According to

Townsend, whom we must credit on summary judgment, in February 2006,

Breen-Smith told Townsend that he would never go to the WRC because

she believed he was faking his symptoms and that there was nothing wrong

with him.
No. 12-3620 7

from segregation status and on June 22, he was released from

observation status and returned to the prison’s general

population. 

Not surprisingly, his stay in the general population was

short-lived. Within a day, he got into a fight with other

inmates, and on June 23, 2005, he was placed in “temporary

lock-up status.” On June 24, he was placed in “control status”

and given a paper gown. On that same day, the Segregation 3

Review Committee placed Townsend on a BAP. He was given

a memorandum that described the terms of his first BAP:

You have recently made threats to yourself and

others. Additionally, your behavior has been very

disruptive. Therefore, pursuant to the DOC Admin

Cod 303.69 and 303.70, your property will be kept

outside of your cell, due to safety and security

concerns presented by allowing you to have it in

cell.

•Your cell will be searched two times a week.

•You will be given a bag meal.

•You will be taken out of your cell of [sic] Fridays

to review mail, write letter, etc. You will be

According to the defendants, an inmate is placed in “control status” when 3

the inmate is behaving in a disruptive manner. During control status, the

institution provides a mattress, light, toilet, sink, ventilation and heating,

adequate clothing, essential hygiene supplies and nutritionally adequate

meals, but otherwise maintains close control of the inmate’s property. R. 48,

at 16.
8 No. 12-3620

allowed one hour to perform these tasks. An

officer will be present at all time.

•You will have a paper gown to wear.

•Upon request, you will be given a self-help book

by clinical services.

•You will be given a segregation mattress.

•You will be given a shower on regular shower

days. As appropriate, a towel and hygiene

supplies will be provided to you prior to the

shower. You will be expected to return all items

after the shower.

No changes will be made in the plan without Lt.

Swiekatowski, Program Supervisor Cooper, Dr.

Hamilton and/or Dr. Breen’s approval.

This plan will be reviewed on an ongoing and

regular basis. Modifications will be made as

appropriate,to include giving you more privileges

and property as your behavior stabilizes, ortaking

more privileges and property if you become

unstable.

R. 48-8. Twelve days later, the BAP was modified to change the

segregation mattress to a regular mattress and to provide a

“seg blanket.” Id. With few changes, future BAP notices

provided for similar conditions, sometimes allowing more

property and privileges and sometimes imposing stricter

constraints. When Townsend was placed on a BAP in

November 2005, the notice specified “This plan will be

reviewed on an ongoing and regular basis, there is no set date
No. 12-3620 9

that this will occur.” R. 48-21. Townsend claimed that he was

not always given all of the property or privileges specified in

the BAP. No BAP provided any opportunity for a hearing or

for Townsend to object. Other than general statements in each

BAP that the plan would be reviewed “regularly,” and that

Townsend would receive adjustments to the restrictions based

on stable or unstable behavior, there was no end date for any

BAP and there was no specified way for Townsend to bring an

end to the restrictions imposed under a BAP.

Between June 24, 2005 and March 31, 2006 (when he was

transferred to another facility), Townsend was subjected to

different BAPs for 259 days. During that time, his property 4

and privileges were severely constrained. For at least ninety of

those days, he was either naked or issued only a paper gown

or segregation smock. He was denied a regular mattress for

106 days, and was not allowed sheets or a pillow for almost the

entirety of the BAP period. When he did not have a regular

mattress, he slept on either a rubber mat or a concrete slab.

Cold air blew into his cell from the ventilation system and

Townsend was often very cold. He walked non-stop around

his cell in an attempt to keep warm. He was allowed out of his

cell for one hour per week to read his mail and write letters. He

was not allowed access to toiletries or a towel for almost the

entirety of his confinement under the BAP. That meant he had

no toilet paper (or at times only a very small amount of toilet

For brief periods of time, Townsend was released from the BAP. Thus, 4

although 280 days elapsed between the first imposition of the BAP and

Townsend’s transfer to another facility, he was subjected to the BAP, by his

own calculation, for 259 days.
10 No. 12-3620

paper), no soap to wash his hands, and no toothpaste or

toothbrush. For 136 days, he was denied writing materials in

his cell, and his access to books and mail was severely

restricted. For a lengthy period, he was given his meals in a

bag, to eat with his hands, rather than a meal tray with utensils

that was provided to other prisoners. For a period of weeks (he

does not specify how many), Townsend was entirely naked

and provided with no clothing, bedding, linen, mattress or

shoes. 

At certain times during the BAP, he was also on

observation status and, during those times, he was visited by

Drs. Hamilton and Breen-Smith. According to Townsend, he

kept hearing voices telling him to kill himself in order to end

the pain and suffering he was experiencing on the BAP. But

when he shared these thoughts with the psychologists, they

told him that, because he was already naked and had nothing

in his cell with which to harm himself, they were not worried

about his suicidal thoughts. Sometimes the psychologists

would laugh at Townsend and tell him that he was making

things up so that he would be removed from the BAP. On

March 31, 2006, Townsend was transferred to Columbia

Correctional Institution. 

Townsend then filed suit against a number of GBCI prison

officials under 42 U.S.C. § 1983. He alleged that the defendants

(1) violated his rights under the Fifth and Fourteenth

Amendments by subjecting him to the BAP without due

process; (2) deprived him of the minimal civilized measure of

life’s necessities while he was subject to the BAP, contrary to

the Eighth Amendment; and (3) were deliberately indifferent

to his serious medical needs, also in violation of the Eighth
No. 12-3620 11

Amendment. The district court granted summary judgment in

favor of the defendants on all three counts. The court found

that the BAP was not punitive but rather was implemented to

protect Townsend from harming himself or others, and

therefore no notice was required under the due process clause.

The court also concluded that Townsend’s conditions-ofconfinement claim failed because the conditions were imposed

for safety reasons and because Townsend could have ended

the harsh conditions by simply behaving appropriately.

Finally, the court determined that prison officials were not

deliberately indifferent toTownsend’smental health issues but

treated him appropriately. Townsend appeals.

II.

On appeal, Townsend contends that the BAP was punitive

and that due process required notice and an opportunity to

object. He also asserts that the conditions to which he was

subject under the BAP violated the Eighth Amendment

prohibition against cruel and unusual punishment. Finally, he

maintains that prison officials were deliberately indifferent to

his serious medical needs when they failed to appropriately

treat him and actually worsened his mental illness by

subjecting him to conditions that they knew would exacerbate

hisdepressionandsuicidal urges. Although Townsend initially

sued a much larger group of employees of the DOC, he

appeals only that part of the district court’s decision that

relates to Sarah Cooper (the Programs Supervisor of GBCI’s

Segregation Unit); William Swiekatowski(a supervising officer

and lieutenant); Mark Zimonick (a Segregation Social Worker);

Martha Breen-Smith (a psychologist); Todd Hamilton (another

psychologist); and William Pollard (the warden of GBCI). He
12 No. 12-3620

does not appeal the district court’s conclusion that other prison

employees who were not personally involved in the harms he

alleges may not be held liable under section 1983. See Ashcroft

v. Iqbal, 556 U.S. 662, 677 (2009) (in a section 1983 suit, each

government official is liable only for his or her own

misconduct). The defendants do not deny that these remaining

prison officials were personally involved in the decision to

impose the BAP and implement its terms, but they do deny

that the BAP conditions violated constitutional standards. We

review the district court's grant of summary judgment de novo,

examining the record in the light most favorable to Townsend

and construing all reasonable inferences from the evidence in

his favor. Anderson, 477 U.S. at 255; Naficy v. Illinois Dep't of

Human Servs., 697 F.3d 504, 509 (7th Cir. 2012);

Norman–Nunnery v. Madison Area Technical Coll., 625 F.3d 422,

428 (7th Cir. 2010). Summary judgment is appropriate when

there are no genuine disputes of material fact and the movant

is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);

Naficy, 697 F.3d at 509.

A.

We begin with the question of whether the imposition of

the BAP without notice and an opportunity to object violated

Townsend’s due process rights, and the closely related

question of whether the conditionsofTownsend’s confinement

under the BAP violated his rights under the Eighth

Amendment. There is a certain disconnect between the parties

in their briefing of the legal issues related to the BAP.

Townsend characterizes the program as entirely punitive; the

defendants contend it was implemented for safety reasons. As
No. 12-3620 13

a factual matter, however, it appears that the BAP was

implemented in response to both safety concerns and

infractions of prison rules; at the very least, there are genuine

issues of material fact regarding the reasons for implementing

the BAP. Each party’s characterization of the BAP heavily

influenced how they briefed the issues. For example, the

defendants contend that, because the BAP was not punitive,

and because the BAP did not impose an atypical and

significant hardship on Townsend, no opportunity to object

was required before applying the program to Townsend. They

also argue that Townsend did receive a notice of sorts; each

time he was placed on the BAP or the terms were changed, he

was given a description of the conditions that were to be

imposed. The defendants appear to concede that the program

was imposed without any opportunity to object. Townsend, in

turn, argues that the BAP was entirely punitive and was

implemented without due process. He does not address the

conundrum that prison officials faced in dealing with a

prisoner who was both mentally ill and willfully disruptive.

Our analysis must necessarily account for the factual reality:

Townsend was both mentally ill and repeatedly in violation of

prison regulations.

To succeed on his Fourteenth Amendment due process

claim, Townsend “must establish that he has a liberty interest

in not being placed in the [BAP]—as it was administered to

him—without procedural protections. It is undisputed that he

received no procedural due process, so the claim turns on

whether he can establish a liberty interest.” Gillis v. Litscher, 468

F.3d 488, 491-92 (7th Cir. 2006). In Sandin v. Conner, 515 U.S.

472 (1995), “the Court explained that the Fourteenth
14 No. 12-3620

Amendment provides to inmates a liberty interest in avoiding

transfer to more restrictive prison conditions if those

conditions result in an ‘atypical and significant hardship’ when

compared to ‘the ordinary incidents of prison life.’” Townsend

v. Fuchs, 522 F.3d 765, 768 (7th Cir. 2008) (quoting Sandin, 515

U.S. at 484-86). When a transfer to conditions meeting this

standardoccurs, the “prison must afford the inmateprocedural

protections before the transfer occurs.” Townsend, 522 F.3d at

768 (citing Sandin, 515 U.S. at 487). Townsend therefore must

demonstrate that the BAP imposed conditions resulting in an

atypical and significant hardship compared to ordinary prison

life. He easily meets this standard. 5

Due process applies when an inmate is subject to conditions that pose an

5

atypical and significant hardship when compared to the ordinary incidents

of prison life, and also when the conditions “exceed[] the sentence in such

an unexpected manner as to give rise to protection by the Due Process

Clause of its own force.” Sandin, 515 U.S. at 484 (citing Vitek v. Jones, 445

U.S. 480, 494 (1980) (holding that an involuntary transfer to a mental

hospital for the purpose of psychiatric treatment implicated a liberty

interest protected by the due process clause); and Washington v. Harper, 494

U.S. 210, 221-22 (1990) (holding that a prisoner possesses a significant

liberty interest in avoiding the unwanted administration of antipsychotic

drugs under the Due Process Clause of the Fourteenth Amendment)). In

Vitek, for example, the Court concluded thatthe “stigmatizing consequences

of a transfer to a mental hospital for involuntary psychiatric treatment,

coupled with the subjection of the prisoner to mandatory behavior

modification as a treatment for mental illness, constitute the kind of

deprivations of liberty that requires procedural protections.” 445 U.S. at

494. Under Vitek and Washington, an inmate subjected to conditions

impinging a liberty interest for mental health reasons must still be afforded

due process. 
No. 12-3620 15

The conditions imposed in Gillis were remarkably similar

to those Townsend experienced. In Gillis, a different Wisconsin

prison implemented a “Behavioral Modification Program,” or

a “BMP,” for certain inmate infractions. Gillis was placed on a

two-stage BMP for violating a rule that required him to sleep

with his head at the back of his cell so that he would be visible

to guards checking him through a small window on his door.

In Stage One, “all property” was removed from his cell for

three days and he was fed nutri-loaf for his meals. Stage One

was extended two days for Gillis based on certain behaviors he

exhibited during the first three days. In Stage Two, which

generally lasted a minimum of seven days but could have been

extended based on Gillis’s behavior, he was allowed a

segregation smock, hygiene items twice a day and showers on

regular shower days. When prison officials said “all property”

would be removed in Stage One, apparently they meant that

all of his clothing, bedding and even basic hygiene items were

removed. Gillis was left naked in his cell with a concrete slab

for a bed, without soap or even toilet paper for all of Stage One

and most of Stage Two on the BMP, for a total of twelve days.

He was denied mail, visitors, phone privileges, canteen items,

writing materials and access to the law library. He was allowed

toilet paper on five occasions in those twelve days, four

squares at a time. The segregation smock that he was allotted

in Stage Two was a sleeveless poncho that covered his chest

and groin. He was not issued underwear. At some point, he

began to receive regular meals in Styrofoam containers and

was allowed the use of toothpaste and a toothbrush, but was

not given soap, bedding or a mattress. While on the BMP, Gillis

began to hear voices telling him that people were trying to kill
16 No. 12-3620

him. He suffered panic attacks, palpitations, shortness of

breath and a fear that he was about to die. He became suicidal

and wrote the words “help me” in his own blood on the walls

of his cell. At that point, he was placed on observation status

but the conditions of the BMP did not change. 468 F.3d at 490-

91.

As is the case with Townsend, in addition to a due process

claim, Gillis also sued prison officials under the Eighth

Amendment for conditions of confinement that constituted

cruel and unusual punishment. That claim required a showing

that the BMP imposed conditions that denied him “the

minimal civilized measure of life’s necessities.” Gillis, 468 F.3d

at 491 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

Gillis also was required to demonstrate that the defendants

acted with knowledge that he faced a substantial risk of serious

harm and disregarded that risk by failing to take reasonable

measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994);

Gillis, 468 F.3d at 491. 

In Gillis, we noted that life’s necessities include shelter,

heat, hygiene items and clothing. We cited cases where a lack

of heat, clothing, sanitation, and bedding, alone or in

combination,were found to violate the Eighth Amendment. See

Gillis 468 F.3d at 493 (collecting cases). See also Rice ex rel. Rice

v. Correctional Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012)

(incarcerated persons are entitled to confinement under

humane conditionswhich provide for their basic humanneeds,

including adequate sanitation and hygienic materials).

Although the defendants here deny that they subjected Townsend to these sorts of conditions, Townsend has created a
No. 12-3620 17

genuine issue of material fact regarding the conditions under

which he was held with his own sworn statements. In addition

to the conditions we described above, Townsend averred that

he spent a period of weeks completely naked, with no clothing,

shoes, bedding, linens, mattress, mail or legal materials. We

found Gillis’s claim sufficient to proceed to trial on both an

EighthAmendment conditions-of-confinement claimandadue

process claim when he suffered similar conditions for twelve

days, including five days in Stage One and seven days in Stage

Two. Townsend endured these conditions in varying degrees

for 259 days. We have held that “both the duration and the

conditions of the segregation must be considered in the due

process analysis; if the conditions of segregation were

significantly harsher than those in the normal prison

environment, ‘then a year of [segregation] might count as a

deprivation of liberty where a few days or even weeks might

not.’” Marion v. Columbia Correction Inst., 559 F.3d 693, 698 (7th

Cir. 2009). In Marion, we concluded that a term of segregation

lasting 240 days required scrutiny of the actual conditions of

segregation, especially in light of the decisions of other courts

of appeals holding that periods of confinement that approach

or exceed one year may trigger a cognizable liberty interest

without any reference to conditions. 559 F.3d at 698-99 n.4

(collecting cases). In Townsend’s case, both the duration of the

BAP and the conditions imposed implicate liberty interests that

require procedural protections. At a minimum, those

protections should have included notice and an opportunity to

object in some fashion.

As we noted above, to avoid summary judgment on his

conditions-of-confinement claim, Townsend must also
18 No. 12-3620

demonstrate that the defendants acted in disregard of a

substantial risk of serious harm to him. “Our review, though,

convinces us that, on this issue as well, he must be allowed to

proceed to trial.” Gillis, 468 F.3d at 494. Townsend’s BAPs

did not provide end dates, and like Gillis’s BMP, Townsend’s

BAPs did not specify how Townsend could bring an end to

the obviously harsh conditions. Gillis, 468 F.3d at 493–94.

Thus, the defendants’ reliance on the Second Circuit’s

decision in Trammel v. Keane, 338 F.3d 155 (2d Cir. 2003),

is unpersuasive for virtually the same reasons we explained

in Gillis. See Gillis, 468 F.3d at 493–94.

Townsend has also raised a genuine issue of material fact

regarding whether the BAP was imposed for safety reasons or

as a disciplinary measure. Of course, safety and discipline are

not mutually exclusive concerns. Townsend seems to concede

as much by characterizing the BAP as a hybrid program. And

Townsend, by his own admissions, presented both disciplinary

problems and mental health issues to prison officials. Nothing

precludes prison officials from addressing both concerns, even

simultaneously. But as support for the imposition of the BAP,

GBCI cited Wisconsin Administrative Code §§ 303.69 (“Major

penalties: adjustment segregation”), 303.70 (“Major penalties:

program segregation and disciplinary separation”) and 303.71

(“Controlled segregation”). Sections 303.69 and 303.70 each

specify that the penalty may not exceed the period specified in

section 303.84 (“Sentencing procedure and schedule of

penalties”). That section, as its title suggests, specifies penalties

(including durations) “where an inmate is found guilty of one

or more violations of the disciplinary rules.” Wis. Admin.Code

DOC § 303.84. The defendants concede that the BAP “has

elements designed to enforce discipline,” (Brief at 23) and
No. 12-3620 19

noted several times that the BAP was activated by Townsend’s

violations of prison rules. For example, the BAP was initially

activated because Townsend got into a fight with other

inmates, and then refused to enter his cell because he wanted

to be housed closer to his brother. His second placement on the

BAP followed several conduct reports for infractions such as

refusing to return his lunch bag, refusing his meal tray, and

covering his cell window. When he engaged in behaviors that

were harmful to himself, the prison also used “observation

status” to ensure his safety. Observation status, as we noted

earlier, is governed by section DOC 311.14, “Conditions of

confinement while in observation,” and accompanying

regulations. But when Townsend engaged in rules infractions

unaccompanied by threats of self-harm, he was subjectedto the

BAP and endured severe property restrictions unrelated to his

personal safety. Thus, Townsend has raised a genuine issue of

fact regarding whether the BAP was imposed as discipline for

violations of prison rules. 

We note that, at times when Townsend was on the BAP,

prison officials used observation status and the related

procedures because Townsend posed a danger to himself or

others. They also employed certain disciplinary procedures

while Townsend was on the BAP for particular rules violations.

In those instances where prison officials indisputably

employed established procedures to address particular safety

issues or disciplinary concerns, due process was satisfied. But

they employed no due process for the additional restrictions

occasioned by the BAP itself when it was arguably used as a

punitive measure. In light ofthe remarkable similarity between

the conditions imposed in Gillis under the BMP and Town-
20 No. 12-3620

send’s BAP, we therefore conclude that the court erred in

granting judgment in favor of the defendants on Townsend’s

due process claim and his Eighth Amendment conditions-ofconfinement claim.

B.

All that remains is Townsend’s claim against Drs. Hamilton

and Breen-Smith for deliberate indifference to his serious

medical needs. The Eighth Amendment imposes a duty on

government officials to provide medical care to prisoners.

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); see also Gil v. Reed,

535 F.3d 551, 556 (7th Cir. 2008); Williams v. Liefer, 491 F.3d 710,

714 (7th Cir. 2007). Prison officials violate the Eighth

Amendment when they are deliberately indifferent to a

prisoner's serious medical needs. Estelle, 429 U.S. at 104, Gil,

535 F.3d at 556; Williams, 491 F.3d at 714. “A claim of deliberate

indifference to a serious medical need contains both an

objective and a subjective component. To satisfy the objective

component, a prisoner must demonstrate that his medical

condition is ‘objectively, sufficiently serious.’” Greeno v. Daley,

414 F.3d 645, 653 (7th Cir. 2005) (quoting Farmer, 511 U.S. at

834). The defendants concede that Townsend had a serious

medical need based on his severe mental illness. 

To satisfy the subjective component, a prisoner must

demonstrate that prison officials acted with a “sufficiently

culpable state of mind.” Farmer, 511 U.S. at 834; Greeno, 414

F.3d at 653. In particular:

The officials must know of and disregard an

excessive risk to inmate health; indeed they must

“both be aware of facts from which the inference
No. 12-3620 21

could be drawn that a substantial risk of serious

harm exists” and “must also draw the inference.”

Farmer, 511 U.S. at 837, 114 S. Ct. 1970. This is not to

say that a prisoner must establish that officials

intended or desired the harm that transpired.

Walker, 293 F.3d at 1037. Instead, it is enough to

show that the defendants knew of a substantial risk

of harm to the inmate and disregarded the risk. 

Greeno, 414 F.3d at 653. The defendants acknowledge that Drs.

Hamilton and Breen-Smith were aware of Townsend’s

condition and the risk to his health. They contend, however,

that Townsend has failed to raise a genuine issue of material

fact regarding whether the prison psychologists disregarded

the risk to Townsend’s health. Instead, they point out that Drs.

Hamilton and Breen-Smithrepeatedly visited Townsend when

he expressed any desire for self-harm. They regularly assessed

and adjusted his access to property that he could use to harm

himself, and they repeatedly placed him on observation status

to ensure his safety when he was suicidal. 

Townsend counters that the visits by Drs. Breen-Smith and

Hamilton did not constitute treatment and that the

psychologists actually aggravated his condition by placing him

on the BAP. Specifically, he charges that they should have

knownabout a January 2005 report produced by the Wisconsin

Department of Corrections on “Treating Mentally Ill Inmates

in Segregated Settings: A Report of the Segregation Workgroup” (hereafter “Report”). According to Townsend, the

Report concludes that segregation and removal of property

“aggravates the condition of mentally ill patients.” Townsend

contends that Drs. Hamilton and Breen-Smith “inflicted” those
22 No. 12-3620

conditions on Townsend “despite clear contraindication from”

the Report. 

There are numerous problems with Townsend’s analysis.

First, as a factual matter, the Report does not state conclusively

that segregation and the removal of property aggravate mental

illness. Instead, the Report notes that the “scientific literature

on the mental health effects of prolonged segregation is still

incomplete and conflicting,” but that “there is a growing

consensus that inmates with psychological vulnerabilities can

deteriorate if placed in settings that have significant social

isolation and inactivity.” R. 63-8, at 6. Second, the Report predates Townsend’s placement on the BAP by fewer than six

months, and Townsend has cited no evidence that Drs. BreenSmith and Hamilton were even aware of the Report’s

conclusions, much less that they intentionally ignored them.

Nor is there evidence that the prison psychologists would have

been able, by themselves, to change prison policies in the

months between the issuance of the Report and the imposition

of the BAP. 

Third, and perhaps most importantly, Townsend has cited

no evidence that Drs. Breen-Smith and Hamilton displayed a

conscious disregard of his needs. Any difference of opinion

between Drs. Breen-Smith and Hamilton with Dr. Schmidt

regarding the need to transfer Townsend to the WRC does not

itself support a claim of deliberate indifference. See Shields v.

Illinois Dep’t of Corrections, 746 F.3d 782, 797 (7th Cir. 2014). Nor

does Dr. Breen-Smith’s remark that Townsend was faking his

symptoms in order to be released from the BAP support a

conclusion that she was deliberately indifferent. Rice, 675 F.3d

at 684 (sincere belief that inmate was malingering does not
No. 12-3620 23

support a conclusion that a nurse was deliberately indifferent

to an inmate’s medical needs). We recently noted that

“prolonged confinement in administrative segregation may

constitute a violation of the Eighth Amendment (and therefore

the Fourteenth), depending on the duration and nature of the

segregation and whether there were feasible alternatives to

that confinement.” Rice, 675 F.3d at 666. See also Walker v.

Shansky, 28 F.3d 666, 673 (7th Cir. 1994). But as in Rice, Townsend has failed to identify any alternatives open to the

psychologists for keeping him safe during periods when he

expressed suicidal wishes. Because Townsend presented no

evidence that Drs. Hamilton and Breen-Smith were

deliberately indifferent to his serious mental health needs, the

district court did not err in granting summary judgment in

favor of the defendants on that claim.

III.

In sum, Townsend has raised genuine issues of material fact

regarding whether (1) the imposition of the BAP violated his

due process rights by imposing an atypical and significant

hardship compared to the ordinary incidents of prison life,

without appropriate notice and an opportunity to be heard;

and (2) the BAP imposed conditions of confinement that

denied Townsend the minimal civilized measures of life’s

necessities. We therefore vacate the judgment on those two

claims and remand for further proceedings. On Townsend’s

Eighth Amendment claim for deliberate indifference to his

serious medical needs, we affirm the district court’s grant of

summary judgment in favor of the defendants.

AFFIRMED IN PART; VACATED AND REMANDED IN

PART.