Malcom D. Cobb, Jr. v. George Payne

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 25, 2024*
Decided June 27, 2024
Before
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1390
MALCOM D. COBB, JR.,
Plaintiff-Appellant,
v.
GEORGE PAYNE,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:20-CV-837-MGG
Michael G. Gotsch, Sr.,
Magistrate Judge.
O R D E R
Malcom Cobb, an Indiana prisoner who uses a wheelchair, sued the Deputy
Warden of Miami Correctional Facility, George Payne, for acting with deliberate
indifference in violation of the Eighth Amendment by allegedly placing Cobb in a cell
that was not handicap-accessible and that was covered in feces. See 42 U.S.C. § 1983. A
magistrate judge, presiding with the parties’ consent, see 28 U.S.C. § 636(c), entered
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and 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NONPRECEDENTIAL DISPOSITION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 only in accordance with F ED. R. APP . P. 32.1

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summary judgment for Payne. Because Cobb did not supply evidence sufficient to raise
a genuine issue of material fact about whether Payne knew that conditions in Cobb’s
cell posed an excessive risk to his safety, we affirm.
We draw our account of the facts from the record at summary judgment, which
we view in the light most favorable to Cobb, the nonmoving party. See Thomas v.
Blackard, 2 F.4th 716, 720 (7th Cir. 2021). On December 10, 2019, Cobb exchanged his old,
broken wheelchair for a replacement wheelchair. Prison staff noticed that two pieces of
steel tubing were missing from the old wheelchair and became concerned because
prisoners had previously used scraps of metal to make weapons. When Payne learned
of the missing metal fragments, he asked Cobb where they were; Cobb responded that
staff had removed a handle from the wheelchair a while back. Payne then ordered
officers to transfer Cobb to restrictive housing pending an investigation into the missing
parts. The investigation was inconclusive, and on December 12, Payne told staff that
Cobb could be transferred out of segregation. Cobb was moved six days later.
The parties disagree about what happened in the interim. Cobb swore that he
told Payne on December 10 that he needed a handicap-accessible cell. Officers in the
restrictive housing unit told Payne that a cell on the bottom floor was open but was
“not clean.” Payne “walked away,” and the officers put Cobb in the cell, which was not
handicap-accessible and was covered in feces. Cobb complained to prison guards and
officials, his family, and his attorney; finally, someone came to clean it. Cobb also sent
informal complaints (the first step of the grievance process) to Payne about the cell.
In this lawsuit, Cobb alleged that Payne violated his rights under (1) the Eighth
Amendment, by placing him in a cell that posed a serious risk to his health and safety;
(2) the First Amendment, by placing him in segregation as an act of retaliation; and (3)
the Rehabilitation Act, by refusing to place him in an accessible cell. At screening under
28 U.S.C. § 1915A, the district court allowed Cobb to proceed only with his Eighth
Amendment claim. As for the retaliation claim, the court noted that Cobb had not
alleged that any protected activity motivated his transfer to segregation. And, with
respect to the claim under the Rehabilitation Act, the court concluded that Payne, an
individual, was not a proper defendant. See Jaros v. Illinois Dep’t of Corr., 684 F.3d 667,
670 (7th Cir. 2012). Cobb did not amend his complaint.
During the discovery period, Cobb asked the district court for permission to
subpoena ten non-party officers as “witnesses” who knew when his wheelchair had
broken. The court construed this as a request for production of documents related to a

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No. 23-1390 Page 3
“trip log” that Cobb mentioned in the request, and it ordered Payne to respond. Payne
objected to the request, stating that it was overbroad because it did not specify a date or
timeframe for the trip log. Cobb made no further effort to obtain this information.
Payne later moved for summary judgment based primarily on his own
declaration. He attested that he was not aware of what cell Cobb was taken to, that all
cells are to be cleaned by staff before a prisoner is placed inside, that he was not aware
of the alleged conditions of Cobb’s cell, and that he was not aware of Cobb’s complaints
about the cell until after Cobb left segregation. Therefore, Payne argued, he could not
have acted with deliberate indifference. Cobb responded that Payne must have known
about the cell’s conditions because an officer had informed Payne that the first-floor cell
was “not clean,” and because Payne (Cobb assumes) eventually sent someone to clean
it. The district court concluded that no reasonable jury could find that Payne knew of
and disregarded an excessive risk to Cobb’s safety and granted Payne’s motion.
In his appellate brief, Cobb primarily restates the factual basis for his claim. But
we understand him to argue generally that there is a genuine factual dispute about
whether Payne was aware of the conditions in Cobb’s cell. We review the
summary-judgment decision de novo. See Thomas, 2 F.4th at 720. For his Eighth
Amendment claim to withstand the summary-judgment motion, Cobb needed evidence
that (1) the conditions in his cell were sufficiently serious, and (2) Payne knew of and
disregarded the excessive risk to Cobb’s safety. See Farmer v. Brennan, 511 U.S. 825, 834,
837 (1994). The district court declined to reach Payne’s argument that the conditions
were not sufficiently serious, and Payne does not press the argument on appeal, so we
confine our analysis to the subjective component of our inquiry.
Cobb did not produce sufficient admissible evidence from which a reasonable
jury could find that Payne had a culpable state of mind. Cobb highlights the informal
complaints he wrote, contending that they prove Payne’s awareness of the conditions in
his cell. But Cobb offered no evidence that Payne received those forms before his release
from segregation, whereas Payne attested that he was not aware of the complaints or
the alleged conditions of the cell until after Cobb left segregation. See Daugherty v.
Harrington, 906 F.3d 606, 611 (7th Cir. 2018).
Other evidence that Cobb relies upon is equally unhelpful to his claim. Although
Cobb attested that Payne told staff that the cell was “not clean,” this does not establish

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that Payne knew it was “covered in feces” and posed an excessive risk to Cobb’s safety.1
See id. And Cobb’s assertion that Payne must have known about the feces or he would
not have sent someone to clean the cell is speculative: there is no evidence that Payne is
the one who instructed the cell to be cleaned. See id. Therefore, on this record, no
reasonable factfinder could conclude that Payne acted with deliberate indifference.
Finally, to the extent that Cobb takes issue with Payne’s refusal to provide certain
discovery materials or the court’s dismissal of his claim under the Rehabilitation Act, he
did not preserve either issue and so cannot claim error now. See Markel Ins. Co. v. Rau,
954 F.3d 1012, 1018 (7th Cir. 2020). First, after Payne objected to Cobb’s discovery
request, Cobb did not adjust the request or move to compel Payne to provide the
information, see F ED. R. C IV. P. 37(a)(3)(B)(iv), and so we have no ruling to review.
Second, Cobb abandoned his claim under the Rehabilitation Act when he did not
amend his complaint to name a proper defendant. (He does not argue that suing Payne
was correct.) He had ample time after screening to amend as a matter of course, see F ED.
R. C IV. P. 15(a)(1)(B), and he never asked for leave to amend under Rule 15(a)(2).
AFFIRMED
1 In his verified complaint, Cobb alleged that an officer made a more specific
statement to Payne about the cell’s condition, but Cobb did not cite his complaint or
otherwise put this statement before the district court at summary judgment, see F ED. R.
C IV. P. 56(c)(1)(A), and so the court had no reason to consider it, see Hildreth v. Butler,
960 F.3d 420, 429 (7th Cir. 2020). Cobb also does not discuss that statement on appeal.

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