# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 5, 2019 *

Decided March 6, 2019

Before

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 18-1768

EZRA R.E. FRENCH, Plaintiff-Appellant

,

v

.

SCOTT ECKSTEIN, et al., Defendants-Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 18-CV-282

William C. Griesbach, Chief Judge

.

O R D E R

Ezra French, an inmate at the Green Bay Correctional Instit ution in Wisconsin, sued three prison officials for violating th e Eighth Amendment after French was injured

when a corrections officer ordered him to compress cardboard in a recycling bin. The district court dismissed French’s complain t under 28 U.S.C. § 1915A(b)(1) for failure to

* The defendants were not served in the di strict court and are not participating on appeal. We have agreed to decide this ca se without oral argument because the briefs and record adequately present the facts an d legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 18-1768 Page 2

state a claim. Because French’s allegations do not state a claim that any of the three defendants recklessly disregarded French’s safety, we affirm.

French alleges that he was working on the “yard crew” when a corrections

officer instructed him and another inmate to climb inside a recycling bin or dumpster and compress its cardboard contents. A third inmate reminded the officer that under the prison’s rules inmates were not permitte d inside dumpsters, and a sign on the dumpster warned people not to climb insi de. But the officer insisted. When French attempted to climb out of the dumpster, he fell to the ground and hurt his back. He sought medical attention and was taken to th e prison’s health services unit, where he received x-rays, ibuprofen, and a four-day excused absence from work. Since then, he

has received “minimum medical attention” and still experiences “constant pain and suffering.” French wrote to an inmate-compl aint examiner about the dumpster incident.

The examiner first said that “no incident re port was written,” but later replied that “an incident report was filled out.” The examiner dismissed French’s complaint because it came down to “one person[’]s word agai nst another[’s].” (The corrections officer disputed that he told the inmate s to condense the cardboard from inside the dumpster.)

French sued the corrections officer, comp laint examiner, and the prison’s warden under 42 U.S.C. § 1983 seeking damages for hi s injury. The district court dismissed French’s complaint at screening because it di d not state a claim against any defendant. Starting with the corrections officer, the court gave two reasons why he was not deliberately indifferent to French’s safety. Firs t, even if an order that French climb into the dumpster violated prison rules, “it was no t so inherently dangerous as to give rise to an Eighth Amendment claim.” Second, the officer enabled French to receive

immediate medical attention after his fall. The court also ruled that French never alleged how the complaint examiner violated hi s rights or contributed to his injury, and that he made no personal allegations against the warden. So those claims failed as well.

On appeal French first argues that he re ceived inadequate medical treatment, but French does not state an Eighth Amendme nt claim for inadequate medical care. See

Estelle v. Gamble , 429 U.S. 97, 104 (1976). First, he does not allege that any of the three defendants, all of whom are non-medical pe rsonnel, ignored his requests for medical care. To the contrary, he alleges that the on e defendant who knew that he needed care— the corrections officer—enabled him to get it (x-rays, pain medication, and four days off work). Second, he does not allege that any de fendant had reason to believe that this care was inadequate, and we generally allow non-medical staff to defer to the judgment of medical professionals. See Hayes v. Snyder , 546 F.3d 516, 525 (7th Cir. 2008). Third,No. 18-1768 Page 3

although he alleges that he still feels pain from the fall, the Eigh th Amendment does not guarantee that an inmate shall be “pain -free in the aftermath of proper medical

treatment.” Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996).

French next argues that the corrections officer violated the Eighth Amendment by ordering him into the recycling dumpster to crush cardboard, but he is incorrect. Such a claim would require a substantial risk of harm that is “so great” that it is “almost

certain to materialize.” Brown v. Budz , 398 F.3d 904, 911 (7th Cir. 2005) (internal quotation marks and citation omitted). We w ill assume that such a risk would arise if the officer had no idea about the dumpster’s contents, for then ordering an inmate inside of it to compress trash that might include sharp metal, rancid food, or glass

shards would reflect deliberate indifference. See Arnett v. Webster , 658 F.3d 742, 751 (7th Cir. 2011); Board v. Farnham , 394 F.3d 469, 478 (7th Cir. 2005). But French alleges that the bin contained only recyclable cardboard, and climbing onto and off of a bundle of cardboard is not “‘sure or very likely to cause ... needless suffering’ and give rise to ‘sufficiently imminent dangers.’” Baze v. Rees , 553 U.S. 35, 50 (2008) (Roberts, C.J., plurality opinion) (emphasis deleted) (quoting Helling v. McKinney , 509 U.S. 25, 33 (1993)); see also Burton v. Downey , 805 F.3d 776, 785 (7th Cir. 2015) (only intentional

misconduct or criminal recklessness—not ne gligence, gross negligence, or tortious recklessness—violates Eighth Amendment). Fren ch replies that the officer violated the prison’s own rules and ignored the dumpster’s posted notice, but a violation of these

standards does not in itself amount to deliberate indifference under the Eighth

Amendment. See Lee v. Young , 533 F.3d 505, 510–11 (7th Cir. 2008) (asthmatic inmate’s complaints that prison officials failed to enforce nonsmoking policy “do not rise to the level deliberate indifference”); Carroll v. DeTella , 255 F.3d 470, 472 (7th Cir. 2001).

Finally, French contends that the compla int examiner and warden violated the Eighth Amendment by “maliciously” refusing to resolve his grievance in his favor and in covering up the misconduct of the correct ions officer. We assume that French is reprising his allegation that the examiner contradicted himself about whether someone reported his fall and that the examiner de nied his grievance about the incident by accepting the officer’s story. But because the examiner “did not create the peril facing” French in the dumpster “or do anything that increased the peril, or make it harder for” French to get medical treatment, he did not violate the Eighth Amendment. Burks
v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). It follows , then, that the warden also did not violate the Eighth Amendment by si gning off on the grievance denial.

AFFIRMED