author: RIPPLE, Circuit Judge.

text:
    Lana CANEN, Plaintiff-Appellant, v. Dennis CHAPMAN, in his individual capacity as Deputy for the Elkhart County Sheriff Department, Defendant-Appellee.
    No. 16-1621
    United States Court of Appeals, Seventh Circuit.
    Argued September 23, 2016
    Decided January 27, 2017

      Michael K. Sutherlin, Attorney, Suther-lin & Associates, Indianapolis, IN, for Plaintiff-Appellant.
    Michael F. DeBoni, Nathaniel M. Jordan, Attorneys, Yoder, Ainlay, Ulmer & Buckingham, Goshen, IN, for Defendant-Appellee.
    Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
   RIPPLE, Circuit Judge.

Lana Canen was convicted of felony murder on August 10, 2005 in Indiana state court. Over seven years later, the state postconviction court vacated her conviction after Detective Dennis Chapman, the state’s fingerprint expert, recanted his trial testimony. He conceded that he mistakenly had identified a latent fingerprint found at the crime scene as belonging to Ms. Canen. The misidentification occurred because Detective Chapman only was trained to compare “known prints” (ie., digital, ink, or powder fingerprint exemplars), not “latent prints” (ie., invisible, unknown fingerprints found at a crime scene), and thus lacked the necessary qualifications to identify the latent print removed from the crime scene. At no time had he disclosed his lack of training to any party in the underlying state criminal proceeding.

Following her release, Ms. Canen brought this action against Detective Chapman under 42 U.S.C. § 1983. She claimed that he had withheld his lack of qualification to perform latent fingerprint analysis and therefore had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court dismissed the case at summary judgment. It held that Detective Chapman was entitled to qualified immunity. Ms. Canen then filed an appeal in this court.

We now hold that the district court’s analysis was correct. Detective Chapman’s failure to disclose that he was not trained as a latent print examiner cannot be characterized as a violation of any clearly established right, and, accordingly, the doctrine of qualified immunity protects Detective Chapman. Moreover, to the degree that this action is premised on the preparation or presentation of his trial testimony, absolute immunity protects him. Accordingly, we affirm the judgment of the district court.

I

BACKGROUND

A.

On November 28, 2002, Helen Sailor was strangled to death in her apartment. At the time, she was a resident of the Waterfall Highrise Apartments in Elkhart, Indiana, which provided housing for low-income elderly people and adults with disabilities. Lana Canen and Andrew Royer, both recipients of Social Security disability benefits, were also residents.

During the murder investigation, the Elkhart City Police Department (“ECPD”) found fingerprints on a number of items in Sailor’s apartment, including a plastic container used to hold her medication. The ECPD sent these lifts, along with fingerprint samples from various suspects, to Detective Chapman of the Elkhart County Sheriffs Department for analysis because they knew that the Indiana State Police Laboratory would have required substantially more time to do the analysis. Detective Chapman concluded that the latent print'on the container matched Ms. Can-, en’s left pinky finger.

As the investigation progressed, the ECPD interviewed Royer about Sailor’s murder. Royer made multiple inconsistent statements during his interviews and ultimately confessed to the murder. He was charged with the crime. Some of Royer’s statements also implicated Ms. Canen. During her interview, Ms. Canen denied ever being in Sailor’s apartment and, even after being told that her fingerprint was found there, continued to deny ever being in the apartment. Subsequently, the prosecutor also charged Ms. Canen in connection with Sailor’s murder.

Prior to her trial, the State allowed Ms. Canen’s attorney to review the prosecutor’s entire file, including Detective Chapman’s report. To aid in her evaluation, Ms. Canen’s attorney retained Charles Lamb-din, a retired ECPD detective, to analyze the latent print. He examined the print for approximately thirty minutes and found two points of similarity, but no points of difference. As a result of his examination, Mr. Lambdin believed that Ms. Canen was possibly the source of the print. Ms. Can-en’s attorney did not seek a pretrial deposition of Detective Chapman, nor did he move to exclude his testimony.

B.

At trial, the State’s evidence against Ms. Canen focused on testimony regarding her relationship with Royer, her false statement that she was out of town on the day of Sailor’s murder, her denial of ever having been inside Sailor’s apartment, and Detective Chapman’s latent print identification.

Detective Chapman’s testimony included a discussion of his prior experience with fingerprint examinations. He described his past experience with the FBI and his participation in a twelve-week FBI training program in which he had learned how to classify and examine fingerprints. He also stated that he was assigned to the Elkhart County Sheriffs Department Crime Laboratory after attending the Integrated Indiana Law Enforcement Crime Scene Training School in the fall of 200Q. Additionally, he testified:

Q: ... And in the lab as a full time detective technician, is it one of your responsibilities to examine as well [as] compare fingerprints?
A: Yes, it is.
.Q: Based upon your experience, have you been able to make fingerprint comparisons in the past several years?
A: Yes, I have.
Q: Any idea how many comparisons you’ve made?
A: Not right off the top of my head. Several — maybe 100 or so.
Q: ... Do you also have training and experience in attempting to recover latent prints from a crime scene?
A: Yes.
Q: Is that part of your responsibilities at the sheriffs department?
A: Yes,itis.[]

Detective Chapman then explained how he compared Ms. Canen’s known print card to the latent print taken from Sailor’s apartment and stated that the latent print matched Ms. Canen’s known print. On cross-examination, Ms. Canen’s attorney did not question Detective Chapman about his qualifications, nor did he offer a witness to refute his conclusion.

The jury convicted both Ms. Canen and Royer. The court imposed a fifty-five year sentence on Ms. Canen. The Indiana Court of Appeals affirmed her conviction on direct appeal, and the Indiana Supreme Court denied transfer.

C.

In August 2009, after exhausting her direct appeals, Ms. Canen filed a petition for state postconviction relief (“PCR”). As part of her PCR, Ms. Canen’s attorney retained an expert, Kathleen Bright-Birn-baum, to analyze the fingerprint evidence. Ms. Bright-Birnbaum is certified in latent fingerprint examination, and her review excluded Ms. Canen as the source of the fingerprint.

Detective Chapman re-examined the evidence and also concluded that he had erred in his previous finding. He testified as to this conclusion during the PCR hearing. When asked why his opinion had changed, he stated that “part of it” was additional training on latent fingerprint identification received in 2006 (after Ms. Canen’s trial). He also stated that he had more experience “[IJooking at a lot of prints” since he conducted the initial analysis. Detective Chapman explained that when he had testified at trial about his experience, he was referring to his experience with “known” or “inked” prints. He simply had not reviewed as many latent prints as suggested by his initial testimony. When asked if he ever considered saying “maybe [he] shouldn’t” do the comparison, Detective Chapman testified, ‘Tes.” Nonetheless, he explained that he did not bring this to someone’s attention because he “was trying to help out Elkhart City.”

The State then requested a continuance in the PCR proceeding to allow the Indiana State Police Laboratory (“State Police”) to examine the fingerprint evidence. The State Police excluded Ms. Can-en as the source of the latent print. The court then granted Ms. Canen’s PCR petition; it concluded that Ms. Canen’s exclusion as the source of the latent print constituted newly discovered evidence. Her conviction was vacated. She was released after over seven years of confinement.

D.

In this subsequent civil action in the federal district court, Ms. Canen sought money damages. Her complaint under 42 U.S.C. § 1983 alleged that Detective Chapman had violated her right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when he held himself out as an expert in fingerprint identification but failed to inform anyone that he lacked the qualifications necessary to examine latent fingerprints.

On cross-motions for summary judgment, the district court granted judgment in favor of Detective Chapman. The court expressed “doubts” as to whether Detective Chapman’s inexperience was “suppressed for purposes of Brady” because the evidence was potentially “available to [Ms.] Canen through the exercise of reasonable diligence.” The district court did not resolve that issue, however, because it believed that, in any event, Detective Chapman was immune from suit.

The district court based its determination of immunity on two grounds. First, the district court noted that Detective Chapman enjoyed absolute immunity for his allegedly misleading testimony that he had made “maybe 100 or so” fingerprint comparisons. The court also held that Detective Chapman was entitled to qualified immunity. In this respect, the court focused its analysis on the second prong of the qualified immunity test: whether the constitutional right was clearly established at the time of the alleged violation. Specifically, the court held that Ms. Canen had failed to establish “whether the violative nature of [Chapman’s] particular conduct is clearly established.”

II

DISCUSSION

We review a district court’s decision granting summary judgment de novo. McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016). “Summary judgment is appropriate when, after construing the record in the light most favorable to the nonmoving party, we conclude that no reasonable jury could rule in favor of the nonmoving party.” Bagwe v. Sedgwick Claims Mgmt. Servs., 811 F.3d 866, 879 (7th Cir. 2016).

A.

We first examine whether Detective Chapman is entitled to qualified immunity. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (emphasis added). The district court declined to answer definitively the first inquiry and focused on the second. In doing so, the court acted well within its discretion. See id. (explaining that courts may address the prongs in either order).

For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks omitted) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074). In order to carry that burden, Ms. Canen must “show either a reasonably analogous case that has both articulated the right at issue and applied it to a factual circumstance similar to the one at hand or that the violation was so obvious that a reasonable person necessarily would have recognized it as a violation of the law.” Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997). Because the inquiry is aimed at determining whether a reasonable person in the officer’s position would have understood his actions to be against the law at the time he acted, the Supreme Court has stressed that the right at issue must be articulated at a meaningful level of particularity. White v. Pauly, No. 16-67, — U.S.-, 137 S.Ct. 548, 551-52, 196 L.Ed.2d 463, 2017 WL 69170, at *4 (U.S. Jan. 9, 2017). This requirement does not mean that a plaintiff must be able to point to a case “on all fours” with the defendant officer’s alleged misconduct. But there must be settled authority that would cause him to understand the illegality of the action. See Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015).

Ms. Canen notes that the right that she asserts here is rooted in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). There, the Supreme Court established the- general proposition that a prosecutor’s suppression of exculpatory evidence violates the Due Process Clause of the Fourteenth Amendment. Ms. Canen also correctly notes that subsequent case law has established clearly that the Brady doctrine applies equally to both exculpatory and impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The mere invocation of these general principles is insufficient. Rather, we must refine our inquiry and examine whether, at the time of Ms. Canen’s criminal trial, the law clearly required someone in Detective Chapman’s situation to declare voluntarily his minimal training in evaluating latent finger prints.

In an effort to meet this burden, Ms. Canen invites our attention to Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), a case involving exculpatory Brady evidence. In Newsome, the police failed to alert the prosecutor to the fact that the fingerprints from the crime scene did not match the defendant’s. In our analysis, we asked whether it was “clearly established ... that police could not withhold from prosecutors exculpatory information about fingerprints” and came to the unremarkable conclusion that, having failed to provide the defense with clearly exculpatory information, the officer could not claim qualified immunity. Id. at 752.

Newsome, however, cannot carry the day for Ms. Canen. The evidence at issue in this case is of a substantially different kind than the evidence in Newsome. In Newsome, the suppressed evidence clearly violated Brady because it had direct exculpatory value; the fingerprint analysis excluded the defendant as the source of an incriminating fingerprint. By contrast, the right asserted here is of an entirely different ilk; the Detective took the stand and stated his job, his experience, and his conclusions about the latent prints that he was tasked with analyzing. He simply did not disparage his testimony by volunteering that he lacked the training that most witnesses who testify about latent fingerprints have.

Ms. Canen also invites our attention to a number of cases involving Brady violations rooted in the suppression of impeachment evidence. We find these cases meaningfully distinguishable for three reasons. First, under the Indiana Rules of Evidence, Detective Chapman’s testimony was admissible. Expert testimony in Indiana is governed by Indiana Rule of Evidence 702, which states:

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

Ind. R. Evid. 702. The Indiana Supreme Court has clarified that, under the Indiana Rules of Evidence, “[n]o precise quantum of knowledge is required if the witness shows a sufficient acquaintance with the subject.” Fox v. State, 506 N.E.2d 1090, 1095 (Ind. 1987). Rather, “[t]he determination of whether a witness is qualified to testify as an expert is within the sound discretion of the trial court whose rulings will not be disturbed absent an abuse of discretion.” Id. “As such, a witness may qualify as an expert on the basis of practical experience alone,” Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003), and “[a] lack of extensive formal training or experience goes to the weight of the expert testimony rather than to its admissibility,” White v. State, 547 N.E.2d 831, 837 (Ind. 1989). Accordingly, Detective Chapman, an officer trained in known fingerprint analysis by the FBI and the Integrated Indiana Law Enforcement Crime Scene Training School, and who had performed latent fingerprint retrieval and latent fingerprint examinations in the past, qualified as an expert under Indiana’s rules of evidence and his testimony was admissible.

Second, both the prosecution and defense declined to probe the weight of Detective Chapman’s testimony. For example, having established Detective Chapman’s qualifications, the first mention of latent prints proceeded as follows:

Q: Okay. I’d like to show you what has been — actually, before we do that. Let’s talk a little bit about fingerprints. Do you also have training and experience in attempting to recover latent prints from a crime scene?
A: Yes.
Q: -Is that part of your responsibilities at the sheriffs department?
A: Yes, itis.[]

Similarly, Detective Chapman’s cross-examination focused on the number of points of comparison needed for a successful match to be established, not his training or experience. At bottom, the prosecution and both defense lawyers elected not to ask Detective Chapman to identify the differences between latent and known fingerprints, or his formal training in one discipline verses the other.

Finally, the cases cited by Ms. Canen all involve disabilities of a very different kind than that presented by the instant facts. For example, in United States v. Banks, 546 F.3d 507 (7th Cir. 2008), this Court ordered a new trial when it learned that the chemist who tested the drugs at issue in the case was under investigation for possible misconduct at the time of her trial testimony. Id. at 509, 513. Similarly, in State v. Davila, 184 Wash.2d 55, 357 P.3d 636 (2015), the Washington Supreme Court found that the termination of a DNA specialist for incompetence was favorable impeachment evidence under Brady. Id. at 638, 643. Finally, in State v. Proctor, 358 S.C. 417, 595 S.E.2d 476 (2004), the Supreme Court of South Carolina found that the trial court had erred in denying the defendant a hearing on his claim that the state suppressed evidence of a DNA lab’s error rate. Id. at 479.

In marked contrast, Detective Chapman’s conduct and background present none of the issues outlined above. He was not under investigation at the time of trial. Moreover, he had not been fired for incompetence, nor is there any indication in the record that he was incompetent. Lastly, there was no evidence that he had a particularly high error rate. Detective Chapman simply had none of the affirmative disabilities outlined in the cases cited by Ms. Canen.

Ultimately, Ms. Canen has pointed us to no case that establishes the legal principle that an officer is obliged to reveal the limitations on his training when he has stated his background, such as it is, and then exposed himself to cross-examination by the defense. We accordingly see no reason to conclude that Detective Chapman’s failure to declare affirmatively his lack of training in latent fingerprint evaluation violated any clearly established right.

B.

To the extent that Ms. Canen’s allegation focuses on Detective Chapman’s actual testimony and his preparation for that testimony, he also is protected by the traditional absolute immunity accorded to witnesses at a judicial proceeding.

It is long-established that witnesses enjoy absolute immunity, Briscoe v. LaHue, 460 U.S. 325, 330-33, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), and we have acknowledged that this protection covers the preparation of testimony as well as its actual delivery in court, Newsome v. McCabe, 319 F.3d 301, 304 (7th Cir. 2003). The rule is designed to aid the search for truth by limiting any fear of recrimination, which in turn decreases any attendant motivation to self-censor. See Briscoe, 460 U.S. at 332-33,103 S.Ct. 1108.

Conclusion

The district court correctly granted summary judgment for Detective Chapman. Accordingly, we affirm the judgment of the district court.

AFFIRMED

      . The district court’s jurisdiction was premised on 28 U.S.C. §§ 1331, 1343(a)(3).

      . Our jurisdiction is premised on 28 U.S.C. § 1291.

      .Detective Chapman denies making any representations that he was an expert in latent fingerprint analysis. R.42-2 at 28.

      . R.30-1 at 132-33 (emphasis added).

      . R.30-3 at 2.

      . Id.; Canen v. State, 860 N.E.2d 591 (Ind.2006).

      . Indiana Post-Conviction Relief Rule 1.

      . R.30-2 at 29; see also id. at 22.

      . Id. at 29.

      . Id. at 32-33.

      . Compare R.30-1 at 132, with R.30-2 at 32-33.

      . R.30-2 at 33.

      . Id.

      . R.30-3 at 8.

      . See id.

      . R.62 at 21.

      . Id. at22n.6.

      . Id. at 25 (emphasis and alteration in original) (internal quotation marks omitted) (quoting Mullenix v. Luna,-U.S.-, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)).

      . R.36-11 at 2-3.

      . Id. at 5.

      . R.42-1 at 5 ("Part of my duties as a patrolman included dusting for and retrieving fingerprint impressions from crime scenes.”).

      . Id. at 6 ("[F]rom time to time, I was asked to examine latent fingerprints that were taken from a crime scene and compare those fingerprints to ‘known prints.' ”); see also R.42-2 at 27.

      . . R.30-1 at 133.

      . See id. at 148-51.

      . We note that these cases are pure Brady claims, rather than § 1983 claims arising from a Brady violation.

      . The court declined to find a violation of Brady because the suppressed impeachment evidence was not material. State v. Davila, 184 Wash.2d 55, 357 P.3d 636, 648-49 (2015).

      . The court nonetheless found the nondisclosure was not material. State v. Proctor, 358 S.C. 417, 595 S.E.2d 476, 480 (2004).

      . Detective Chapman was disciplined and forbidden from assisting other agencies with fingerprint identification only after disavowing his previous fingerprint identification in this case. R.42-2 at 26.

      . Ms. Canen's invocation of Manning v. Miller, 355 F.3d 1028 (7th Cir. 2004), does not alter this rule. That case involved FBI investigators actively colluding with a witness to commit perjury— "behavior that [went] well beyond testimony given at trial.” Id. at 1032-33.


source: Caselaw Access Project

author: HAMILTON, Circuit Judge.

license: Public Domain

text:
    ARLINGTON SPECIALTIES, INC., Plaintiff-Appellant, v. URBAN AID, INC., Defendant-Appellee.
    No. 14-3416
    United States Court of Appeals, Seventh Circuit.
    Argued September 15, 2016
    Decided January 27, 2017

      Jami A. Gekas, Attorney, Foley & Lardner LLP, Chicago, IL, for Plaintiff-Appellant.
    Christopher W. Niro, William L. Niro, Attorneys, Niro Law Group, LLC, Chicago, IL, Philip H. Stillman, Attorney, Still-man & Associates, Miami Beach, FL, for Defendant-Appellee.
    Before FLAUM, MANION, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

This Lanham Act case turns on whether the shape and design of a small bag, modeled after a men’s Dopp Kit and used in personal care kits, are functional and therefore not protected as trade dress. Plaintiff sells personal care kits in such a bag. When another personal care kit seller copied plaintiff’s bag, plaintiff sued, claiming the bag was protected trade dress. The district court granted summary judgment in defendant’s favor, finding that the bag’s design and shape were functional. We agree, so we affirm the district court’s decision.

I. Factual and Procedural Background

Plaintiff Arlington Specialties, Inc. does business as Pinch Provisions. It sells personal care kits: small bags containing small portable toiletries like hairspray, stain' remover, and deodorant. Plaintiffs products include a line of kits called “Minimer-gency Kits,” which come in small fabric bags designed to look like men’s Dopp Kits (ironically enough, a now-cancelled trademark for travel kits, originally for men’s shaving gear, used widely by the military in World War II). A picture of plaintiffs bag is Appendix A to this opinion.

Defendant Urban Aid, Inc. also sells personal care kits. It agreed to create a custom kit for a shoe' distributor that wanted to use the kits as part of a sales promotion. The shoe distributor wanted the kits to come in a bag similar to plaintiffs bag, and it gave Urban Aid a picture of plaintiffs bag to work from. Urban Aid obliged; side-by-side images of the two parties’ bags are Appendix B to this opinion.

After the shoe distributor began its sales ■ promotion, plaintiff filed suit in the Northern District of Illinois. It claimed that the shape and design of its bag were protected trade dress, that Urban Aid’s bag violated the Lanham Act, the Illinois Uniform Deceptive Trade Practices Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act, and that Urban Aid’s bag tortiously interfered with plaintiffs prospective business relations.

Urban Aid moved for summary judgment on four grounds: that plaintiffs trade dress was generic, that it was functional, that it lacked secondary meaning, and that Urban Aid’s design caused no likelihood of confusion. The district court found that plaintiffs claimed trade dress was functional as a matter of law. Arlington Specialties, Inc. v. Urban Aid, Inc., No. 13 CV 4180, 2014 WL 4913531, at *3 (N.D. Ill. Sept. 30, 2014). Because all of plaintiffs claims depend on whether the claimed trade dress is protectable, the court granted summary judgment for the defendant on the federal Lanham Act claim and the related state-law claims. Id. at *4. Plaintiff has appealed.

II. Analysis

We review de novo a district court’s grant of summary judgment; we view the evidence in the light reasonably most favorable to the non-moving party and must affirm if no reasonable trier qf fact could find in favor of the non-moving party. White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016). We agree with the district court that the undisputed facts show here that plaintiffs claimed trade dress is functional and therefore not protected by the Lanham Act.

A. Trade Dress and Functionality

The Lanham Act establishes a cause of action against any “person who ... in connection with any goods or services” uses “any word, term, name, symbol, or device” which “is likely to cause confusion” as to the good or service’s source. 15 U.S.C. § 1125(a)(1)(A). That protection can extend to “trade dress,” such as the design or packaging of a product that is so distinctive as to identify the manufacturer or source. TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 28, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 608 (7th Cir. 1986) (“trade dress is a form of trademark”).

Such trade dress cannot “be used in a manner likely to cause confusion as to the origin” of the product. TrafFix Devices, 532 U.S. at 28, 121 S.Ct. 1255. This feature of trademark law presents both an opportunity for producers and a potential threat to consumers. Other forms of federal intellectual property — patents and copyrights — -come with time limits, after which competitors and the public are free to copy the protected item. Trademark protection does not expire, though, as long as the protected mark is being used in commerce to designate the origin of a product. See id. at 29,121 S.Ct. 1255.

The doctrine of functionality imposes a critical limit on trade dress rights because “product design almost invariably serves purposes other than source identification.” TrafFix Devices, 532 U.S. at 29, 121 S.Ct. 1255, quoting Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 213, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). Because trademark protection for trade dress has no time limit, giving one competitor a perpetual and exclusive right to a useful product feature would result in a perpetual competitive advantage. See Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). “The Lanham Act does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its [limited] period of exclusivity.” TrafFix Devices, 532 U.S. at 34, 121 S.Ct. 1255. When the trade dress is unregistered (as plaintiffs is), the party seeking protection has the burden to show it is not functional. 15 U.S.C. § 1125(a)(3).

In TrafFix Devices, the Supreme Court embraced two tests for functionality from its precedents. See Eppendorf-Netheler-Hinz GmbH v. Ritter GmbH, 289 F.3d 351, 355-56 (5th Cir. 2002) (explaining the two TrafFix definitions of functionality); Brett Ira Johnson, Trade Dress Functionality: A Doctrine in Need of Clarification, 34 Campbell L. Rev. 125, 129 (2011) (same). A product feature is functional, the Court said, “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” TrafFix Devices, 532 U.S. at 32, 121 S.Ct. 1255, quoting Qualitex, 514 U.S. at 165, 115 S.Ct. 1300. Even if a product feature does not satisfy that definition, it can still be functional if it is a “competitive necessity,” that is, if its exclusive use “would put competitors at a significant non-reputation-related disadvantage.” Id. at 32-33, 121 S.Ct. 1255, quoting Qualitex, 514 U.S. at 165,115 S.Ct. 1300.

In an effort to narrow the doctrine of functionality, plaintiff emphasizes the latter verbal formulation using the concept of necessity. Plaintiff argues that summary judgment can be affirmed only if its competitors “must” be able to use its claimed trade dress to compete. In TrafFix Devices, however, the Supreme Court rejected exclusive reliance on that definition. The Court explained (a) that competitive necessity is “incorrect as a comprehensive definition” of functionality and (b) that a feature is functional when it “affects the cost or quality of the device.” 532 U.S. at 33, 121 S.Ct. 1255; accord, Eco Manufacturing LLC v. Honeywell Int’l, Inc., 357 F.3d 649, 654-55 (7th Cir. 2003) (“TrafFix rejected an equation of functionality with necessity; it is enough that the design be useful.”); see also Eppendorf-Netheler-Hinz, 289 F.3d at 356 (recognizing that TrafFix Devices superseded Fifth Circuit’s reliance on an earlier test “virtually identical to the ‘competitive necessity’ test”). We consider both definitions in evaluating this case.

We applied the broader definition of functionality—affecting the cost or quality of a product—in Specialized Seating, Inc. v. Greenwich Industries, LP, 616 F.3d 722 (7th Cir. 2010). That decision held squarely that a design feature need not function optimally to be functional and thus not protectable as trade dress. One party claimed trade dress protections in an “x-frame” style folding chair. Id. at 723-24. It argued that its design was not functional, pointing to other designs that were “stronger, or thinner, or less likely to collapse ... or lighter.” Id. at 727. (Irony is often a feature of litigation over functionality, as the party seeking trade dress protection criticizes its own product’s features. That happened in this case as well.) We rejected that argument, reasoning that a design need not be “the only way to do things” to be functional; it need only “rep-resente ] one of many solutions to a problem.” Id.; see also Georgia-Pacific Consumer Products LP v. Kimberly-Clark Corp., 647 F.3d 723, 731 (7th Cir. 2011) (applying Specialized Seating’s reasoning to quilting design on toilet paper, and noting ironic conflict between plaintiffs own advertising touting advantages of the design and its litigation position denying such practical benefits). The chair design in Specialized Seating amounted to a “compromise! ]” along several functional “axes,” a “selection of attributes” on functional dimensions. 616 F.3d at 727. Such design features are functional even if other solutions to the design problems are available to competitors. Id.

B. Functionality Doctrine Applied Here

Functionality is a factual question, Specialized Seating, 616 F.3d at 726, but the bar for functionality is so low that it can often be decided as a matter of law, as in this case. See Georgia-Pacific, 647 F.3d at 727; Jay Franco & Sons, Inc. v. Franek, 615 F.3d 855, 856-57 (7th Cir. 2010).

Plaintiff identifies five elements in its claimed trade dress: (1) the bag’s cuboi-dal shape; (2) the bag’s softness; (3) the zipper’s location on the bag; (4)' the “folded and tucked” corners; and (5) the seam halfway up the bag’s sides. Those elements determine the bag’s shape, its degree of rigidity, and how hard or easy it is to access its contents—all, the undisputed evidence shows, functional aspects of the product. Plaintiff submitted a declaration from its founder, who explained that whether these bags are soft or rigid affects how susceptible they are to puncture and deformation. She discussed how the bags’ shapes influence their cost, how easy their contents are to access, and what handbags they fit into. Plaintiff emphasizes that customers care about those features for reasons other than source identification: the features “affect[ ] the ... quality of the article.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851 n.10, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). That is the very definition of a functional feature.

Plaintiff argues that those facts are not fatal to its case. It points to evidence that the bag’s features were chosen for their aesthetic appeal rather than for their functional qualities. As in Specialized Seating, this is “not a complete answer, as attractiveness is a kind of function,” but as in that case, we need not pursue the point. See 616 F.3d at 725 (citation omitted). Its bag, plaintiff says, is in fact inferior to competing options: metal tins are cheaper and less easily damaged, for example, and other shapes make accessing the bag’s contents easier. That is just the sort of argument we rejected in Specialized Seating. We reject it again here. These different design features present alternative functional designs with different advantages and disadvantages that have nothing to do with the source of a particular product. Alternative designs can be “part of the total evidentiary matrix to be weighed” in deciding whether claimed trade dress is functional. J. Thomas McCarthy, 1 McCarthy on Trademarks and Unfair Competition § 7:75 (4th ed. 2008); see Georgia-Pacific, 647 F.3d at 727-28 (listing availability of alternative designs among factors considered to decide functionality).

The question is not, as plaintiff would have it, whether the claimed trade dress has “less utility” than alternatives. Focusing on that question would be contrary to our precedent and sound interpretation of the Lanham Act, offering unlimited monopolies for useful design features. It would also encourage peculiar arguments by trade-dress plaintiffs criticizing their own products, as plaintiff did in this case. Under TrafFix Devices, Specialized Seating, and Georgia-Pacific, the right question is whether the design feature affects product quality or cost or is “merely ornamental.” McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 312 (4th Cir. 2014). Here, the undisputed evidence shows that the claimed design features affect product quality, so we need not consider the availability of alternative designs for competitors. See TrafFix Devices, 532 U.S. at 33, 121 S.Ct. 1255 (“Functionality having been established ... [t]here is no need ... to engage ... in speculation about other design possibilities.”).

The district court’s judgment is AFFIRMED.

APPENDIX A

APPENDIX B

Plaintiffs bag (left); Urban Aid’s bag (right)


author: EASTERBROOK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven R. SCHENIAN, Defendant-Appellant.
    No. 16-3132
    United States Court of Appeals, Seventh Circuit.
    Argued January 24, 2017
    Decided January 30, 2017
    Rebecca Taibleson, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

      Peter J. Heflin, Attorney, Milwaukee, WI, for Defendant-Appellant.
    Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
   EASTERBROOK, Circuit Judge.

After pleading guilty to drug and firearms charges, Steven Schenian was sentenced to 144 months’ imprisonment — two years higher than the statutory minimum, but within the Guidelines range of 135 to 168 months. The plea bargain included an agreement that the prosecutor would recommend a sentence of 144 months, while Schenian would argue for less. The district judge accepted the prosecutor’s recommendation.

Schenian used illegal drugs in addition to peddling them. While in jail on these charges he had his girlfriend smuggle drugs to him, but he told the judge that he had decided, to turn his life around. The prosecutor stated, however, that a urine sample collected the evening before sentencing showed that Schenian even then had one unauthorized drug in his system. When imposing sentence the judge did not mention the previous night’s test but did deem it significant that Schenian had continued using drugs while in custody.

The prosecutor turned out to have been mistaken. He had misinterpreted raw data from the test. The lab report concluded that Schenian had not been on drugs at the time of that test. Eight days after Schenian’s sentencing, the prosecutor sent letters to the court and Schenian’s lawyer disclosing the error. The district court promptly issued this order:

The Court has considered the correction of information conveyed in the Government’s ... letter. The Court remains convinced that the original sentence imposed in this case was sufficient but not greater than necessary to accomplish the purpose of sentencing. None of the facts contained in .that letter would lead the Court to alter its decision.

Schenian then asked the judge to use Fed. R. Crim, P. 35(a) to resentence him. This rule provides: “Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” The judge denied this request, explaining:

In response to the Government’s letter correcting the record made at the sentencing hearing ..., counsel for the defendant has requested • resentencing. Having reviewed the presentence report, the Court remains convinced that the sentence imposed was sufficient but not greater than necessary to accomplish the goals of sentencing as set forth in 18 U.S.C. § 3553. The Court notes that it imposed a sentence of 72 months on each of the two counts to be run consecutively for a total of 144 months, or 12 years. This was the sentence that the Government had agreed to recommend in the plea agreement that was filed with the Court on April 18, 2016, months before the sentencing hearing where the erroneous information surfaced. Furthermore, given the nature of the crime and the history of the defendant, the Court would have been inclined to impose a higher sentence, had it not been for the Government’s recommendation. Under these circumstances, the Court is satisfied that the erroneous information concerning [Schenian’s] use of drugs just before his sentencing did not affect his sentence. Had it done so, the Court would have ignored the plea agreement and gone above the 12 years recommended by the Government. Indeed, the 144 month sentence fell well within the Guideline range. For this reason, and for the reasons set forth in the Court’s sentencing comments, the motion for resen-teneing or reduction in sentence is denied.

Despite having asked the district judge to use his power under Rule 35(a) to reduce the sentence, Schenian argues to us that the judge had no such power — that no “arithmetical, technical, or other clear error” occurred. As Schenian now sees things, because the judge had no power to grant the request, he likewise had no power to deny it; if he lacked power to deny it, then we must ignore his statement that the error did not affect the sentence; and if we ignore the district judge’s views, then the only sensible thing to do is to remand for resentencing, which Schenian thinks should be conducted by a different judge. We do not agree with any part of this chain of contentions.

Let us suppose for the moment that a sentence affected by a particular proposition of fact cannot be called a “clear error” even though everyone now agrees that the proposition was false. Then the district judge could not have granted the motion. But he still had power to deny the motion. The need to deny a motion does not determine what reason a judge gives for taking the required action. The district judge might have said “I have no authority to grant this motion” and stopped. But he equally could have said “I would deny this motion even if I had the power to grant it, and here’s why.” The district court denied Schenian’s motion without deciding whether he had the power to grant it, explaining that the sentence did not reflect an error of any kind. If there was no error, there was no clear error. The absence of a clear error was at once a reason not to grant the motion and a reason why the judge lacked authority to grant the motion. Either way, the judge’s explanation supplies valuable information that a court of appeals can consider.

If the district judge came to think that the sentence was too high, because it had been influenced by a false belief that Sche-nian was on drugs the night before sentencing, that would have revealed a “clear error” that would have allowed the judge to fix the problem within 14 days of sentencing. A mistakenly high sentence cannot be called an “arithmetical” or “technical” gaffe, but an error it would be — and if the error was clear only in hindsight, still it would be “clear error.” Cf. Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) (an error that is plain only in retrospect can be corrected as “plain error” under Fed. R. Crim. P. 52(b)). The “clear error” standard of Rule 35(a) and the “plain error” standard of Rule 52(b) may well be the same thing— the former for use by district courts (with a short time limit) and the latter for use by appellate courts. What could be gained by declaring that a district court cannot rectify an obvious error? The main function of Rule 35(a) is to allow district judges to fix errors that otherwise would be bound to produce reversal. See United States v. Clark, 538 F.3d 803, 809 (7th Cir. 2008).

Schenian’s problem is not that a judge’s reliance on false information can never be “clear error.” It is that the district judge did not rely on the false information, so there was no judicial error. The prosecutor made an error, and that error was clear in retrospect (once the lab released its report). But Rule 35(a) does not authorize a judge to revise a sentence because one of the litigants has made a mistake. It authorizes the court to fix sentences affected by its own errors, whether they be arithmetical, technical, or otherwise “clear”. Once a judge has decided that the sentence is unaffected by error, there is no need for a do-over.

What the district judge said shows that Schenian’s sentence was unaffected by the prosecutor’s error. We have no reason to doubt the judge’s assessment of his own thinking. Indeed, his second explanation strikes us as compelling. See also, e.g., United States v. Abbas, 560 F.3d 660, 666-67 (7th Cir. 2009), among the many cases in which we have accepted a district judge’s reasoned statement that a particular fact or legal belief did not affect a sentence. A remand for further proceedings would waste everyone’s time.

Affirmed


author: EASTERBROOK, Circuit Judge. POSNER, Circuit Judge,

text:
    ESTATE OF William A. MILLER, BY its representatives Patrick T. CHASSIE and Linda Wilkerson, Plaintiff-Appellant, v. Helen J. MARBERRY and Gary Rogers, Defendants-Appellees.
    No. 15-1497
    United States Court of Appeals, Seventh Circuit.
    Argued November 29, 2016
    Decided January 30, 2017

      Jessica R. Amunson, Previn Warren, Attorneys, Jenner & Block LLP, Washington, DC, Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Plaintiff-Appellant.
    Gina Shields, Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendants-Appellees.
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   EASTERBROOK, Circuit Judge.

While confined at the federal prison in Terre Haute, Indiana, William Miller fell out of an upper bunk and broke his back. Contending that he should have been in a lower bunk, Miller seeks compensation in this Bivens action. Miller died in June 2016; the record does not show why. His estate has been substituted as the plaintiff, but we use his name to make the exposition easier to follow.

Miller’s principal problem is the identity of the two defendants: Gary Rogers, a guard, and Helen Marberry, then the Warden of Terre Haute. Miller does not seek relief from any physician or nurse, even though the prison’s medical department is responsible for deciding who has a medical need for a lower bunk. (His complaint named nurse Trisha Haddix, but he has abandoned that claim.) Nor did Miller sue the guard responsible for making bunk assignments. That guard sits in a pod containing a computer with access to the prison’s SENTRY database that identifies medical restrictions. Rogers, by contrast, roamed the cells on foot.

The events underlying this suit began on January 6, 2009, when Miller was moved from the prison’s general population to the more restrictive “special housing unit” and assigned to an upper bunk. Miller contends, and we assume, that when Rogers made his rounds later that day Miller told Rogers that he had a brain tumor and was entitled to a lower bunk. Rogers replied that Miller must follow his assignment or be put on report for disobedience.

Five days later Miller fell from the ladder between the upper bunk and the floor. He hit his head and lost consciousness. Miller does not contend that Rogers (who apparently was not working that shift) or anyone else responded inadequately. Miller was carried on a backboard with a cervical collar to an examination room, where a nurse noted that he reported pain in his neck, back, and left foot. He was transported by ambulance to a hospital’s emergency room. The hospital conducted a CT scan that did not detect any fall-related problems. Miller returned to the prison within a few hours and was again assigned to an upper bunk. He does not contend that either Rogers or Marberry played a role in that assignment. Nor does he contend that any of the many medical personnel he saw that day issued, or should have issued, a lower-bunk-only directive. He does not contend that he then (or ever) went to the guard responsible for bunk assignments and either asked for a lower bunk or told that guard that he had a medical pass for one. He does say, however, that once he had returned to the special housing unit he told Rogers that he had fallen and repeatedly asked him for a lower bunk, and that Rogers did not respond.

On February 14, 2009, Miller rolled over while asleep in the upper bunk and fell approximately six feet to the cement floor. This time he broke his back and suffered other serious injuries. Once again Miller does not contend that the care he received was substandard. He was carried on a backboard, with a cervical collar, to a hospital for a CT scan, which revealed injuries that led to surgery. When he returned to the prison he was again placed in an upper bunk, where he remained until December 1, 2009, when the medical staff directed that he be assigned to a lower bunk. Miller does not contend that Rogers played any role in his assignment to an upper bunk between his return from the hospital and December 1 — nor does he contend that any of the prison’s medical staff is liable for failing to ensure that he had a lower bunk then, or earlier. Finally, Miller does not contend that either Rogers or Marber-ry is liable for failing to ensure that upper bunks have railings, nets, or other devices ■to prevent inmates from falling out while asleep.

The district court granted summary judgment to Rogers and Marberry, giving two principal reasons. The first, to which we have alluded, is that neither Rogers nor Marberry was responsible for bunk assignments. The second is that if Rogers had consulted the SENTRY database he would not have discovered a lower-bunk directive. The district judge found it uncontested that an earlier pass had expired and that a new one was not issued until December 1, 2009. The judge stated that guards and wardens are entitled to rely on the medical staff to make medical decisions about medical problems.

Miller sees this séeond reason as his opening. He contends that there is a material dispute about what Rogers would have found had he consulted the SENTRY database. When denying a post-fall grievance about his bunk assignment, Warden Mar-berry wrote that Miller had had authorization for a lower bunk since early 2008 and should have brought this to the attention of the guard responsible for placement decisions (that is, the guard in the pod). Miller observes that this contradicts affidavits filed by Rogers and others relating that in January and February 2009 the SENTRY database did not contain a lower-bunk notation. Both statements could be correct; a lower-bunk assignment may have been issued but not added to the database. But there is still an apparent inconsistency, and Miller maintains that this requires a trial.

Yet the first problem remains— 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. He told Rogers that he had a brain tumor and a lower-bunk assignment, and Rogers did nothing. He maintains that, while Marberry was walking through the special housing unit, he tried to tell her too, though she turned her back and left before he was finished. That makes her as much responsible as Rogers, Miller believes.

That line of argument is deficient on multiple levels. One is that it supposes that every federal employee is responsible, on pain of damages, for not implementing the decision of any other federal employee, so that all Miller need show is the existence of a lower-bunk order. Yet the Supreme Court has never held that Bivens actions can be used to enforce administrative orders. Nor has the Court held that every public official has a duty to carry out every other public official’s decisions. To the contrary, Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), holds that police and prosecutors are not hable for their failure to enforce a judicial no-contact order. Why would a lower-bunk permit receive greater status? 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. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Petties v. Carter, 836 F.3d 722 (7th Cir. 2016) (en banc).

A lower-bunk permit does not supplant that framework for Eighth Amendment claims. Miller does not contend that the very existence of a lower-bunk assignment would convey to any conscientious prison employee the existence of a serious medical condition, something that is a sine qua non of an Eighth Amendment medical-care claim. For all this record shows, medical personnel issue lower-bunk directives for reasons that do not imply the existence of a “serious” health problem; Miller did not ask in discovery for the criteria that the prison uses to issue lower-bunk directives.

His statement to Rogers that he had a brain tumor likewise falls short of demonstrating a serious medical condition. Brain tumors come in many sizes and locations; they have a range of effects, including none; benign tumors can last decades without causing adverse consequences. So to say “I have a brain tumor” would not necessarily imply to every guard or warden the need for medical care, let alone the particular accommodation (a lower bunk) that Miller demanded. What’s more, Rogers was not obliged to believe Miller’s assertion that he had a brain tumor and a lower-bunk pass. Prisoners can be manipulative, using deceit to obtain advantages; guards are accordingly entitled to be skeptical. Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004).

Prisons respond to the risk of manipulative conduct by exploiting the division of labor — for example, by allocating bunk-assignment duties to guards who have computer terminals that enable them to check prisoners’ assertions. Miller made his assertions about a brain tumor and a lower-bunk pass to Rogers, who could not verify them, while never complaining to the guard with bunk-assigning duties and access to the SENTRY database. This record shows that Miller .did have a thalamic brain tumor, diagnosed before he entered prison, that reduced sensation on the left side of his body. A lower-bunk assignment may have been well justified, but neither Rogers nor Marberry knew the details, consequences, and appropriate accommodations of Miller’s medical condition.

Liability under Bivens is personal rather than vicarious. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Vance v. Rumsfeld, 701 F.3d 193, 203-05 (7th Cir. 2012) (en banc). One consequence of this rule was spelled out in Burks v. Raemisch, 555 F.3d 592 (7th Cir. 2009), which holds that prison officials who reject prisoners’ grievances do not become liable just because they fail to ensure adequate remedies. That’s a fair description of Rogers’s and Marberry’s situations. Indeed, Rogers did not have any grievance-adjustment responsibilities, and Marberry, who was the ultimate grievance adjuster, did not receive a formal grievance, from Miller until 18 months after his second fall. Defendants’ brief in this court relies on Burks and two similar decisions, Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011), and King v. Kramer, 680 F.3d 1013, 1018. (7th Cir. 2012), but Miller’s briefs do not discuss any of the three.

Although Iqbal, Vance, and Burks all hold that inaction following receipt of a complaint about someone else’s conduct is not a source of liability, Miller seeks support from Haywood v. Hathaway, 842 F.3d 1026 (7th Cir. 2016), in which the majority of a divided panel thought that allegations against a state prison’s warden created a triable Eighth Amendment issue. Haywood contended that he had been held for 60 days in freezing conditions. The panel’s majority stressed that the warden had given instructions to the prison’s engineering staff, received a report, visited the scene, and declared that all was well. That personal involvement permitted an inference that the warden’s own conduct was unconstitutional. Miller’s allegation, by contrast, is that Rogers and Marberry brushed off his complaints, leaving them to be handled through the chain of command. That brings Miller’s claim within the scope of Iqbal, Vance, and Burks rather than Haywood.

AFFIRMED

POSNER, Circuit Judge,

dissenting.

In November 2006 William Miller was convicted of bank robbery and sentenced to 120 months in prison. Between then and his imprisonment, which began thirteen months later in the Federal Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute” as the prison is more commonly known), he was diagnosed with a thalamic brain tumor (more commonly referred to in the medical profession as a thalamic glioma) that impaired the feeling in the' left side of his body — a typical symptom of the disease.

A month after entering prison, Miller was given a “lower-bunk restriction”: his doctor ordered that he be assigned to a lower bunk because of his medical condition, and a notation to that effect was added (or should have been added) to his profile in the prison’s electronic record-keeping system. A year later, for unknown reasons (but there is no indication that the reasons were disciplinary), he was assigned to a more restrictive housing unit in the prison than he’d originally been in, called the Special Housing Unit. He was initially given a lower bunk, but within hours was moved to an upper one. He complained to Gary Rogers, the number one guard in the unit, that because of his brain tumor he had a lower-bunk restriction, but Rogers told him he wouldn’t be switched to a lower bunk and if he refused the upper bunk he would “receive a disciplinary report for refusing a direct order.”

Yet just five days after this contretemps, climbing down the,ladder from his upper bunk Miller became dizzy, slipped, and fell to the concrete floor, hitting his head , and losing consciousness. According to the prison’s report of the incident, Miller was found “lying in [on?] [the] floor of [his] cell at [the] bottom of [the] bunk stairs” with “blood noted to [at?] top of head with a small ... laceration.” He was taken to a hospital, treated, and given a CAT scan, but upon his return to the prison was again assigned an upper bunk. He complained about the assignment, without effect, both to Rogers and to an attending nurse.

At about this time the prison’s warden, defendant Marberry, on one of her weekly walks through the Special Housing Unit, stopped at the door to Miller’s cell, and he told her he’d recently fallen from the upper bunk and should be placed in a lower bunk. As warden she could of course have taken up the issue of lower versus upper bunk for Miller with the prison’s medical staff, but she didn’t; she merely “walked away from [Miller’s] cell door leaving him in midspeech” (according to the complaint) — and this despite the fact that before he entered the Special Housing Unit, Miller had repeatedly discussed his brain tumor with the warden on her visits to prisoners during their lunch period.

The following month (February 2009) Miller while sleeping fell from his upper bunk at about 2:30 a.m. and remained lying on the floor for an hour or two until noticed by staff, who placed him on a back board with a cervical collar around his neck and took him to the emergency room of a nearby hospital, where a CAT scan revealed that Miller had severely compacted (that is, compressed) the cervical segment of his spine and sustained a fracture in the thoracic region. He was placed in a hard clamshell back brace.

Upon his return to the prison so accoutered, he again requested a lower-bunk assignment and it was again refused without reasons given. Warden Marberry walked through the Special Housing Unit many times in 2009 and saw Miller lying on the upper bunk in his cell wearing his clam-shell back brace and a cervical brace. Each time she approached his cell he asked her for a lower bunk, but she did nothing in response to his request; and Rogers, who in making his rounds also saw Miller frequently, also did nothing. Throughout this period Miller was in acute pain.

Finally on December 1, 2009, Miller was given a new lower-bunk restriction for one year. Eleven days later, however, the day after a nurse removed surgical staples in Miller’s back that had been placed there during his most recent surgery, the wound that had been stapled burst open, discharging a large amount of a yellowish fluid consisting mainly of blood. He was taken to a hospital and remained there for four months until the wound healed. It appears that after returning from the hospital Miller was at last given a lower-bunk assignment.

Miller filed an administrative complaint with the prison the following year, complaining about all the time he’d been made to sleep in an upper bunk despite its serious consequences for his health. His complaint was denied on the ground that— although he’d had a lower-bunk restriction since January 29, 2008 — he had never submitted a document confirming that restriction to a member of the prison’s staff, as required by a notice to the prisoners that “It is your responsibility to have all medical restrictions on your person to present to staff.” Although he’d had a lower-bunk restriction since January 29, 2008, he had lost the document confirming the restriction and had been unable to obtain a new one from the prison’s medical staff until well into the following year.

He continued complaining about having to sleep in an upper bunk, all to no avail, and culminating in this remarkable brushoff by the Federal Bureau of Prisons Office of Regional Counsel: an “investigation of your claim did not reveal you suffered any personal injury as a result of the negligent acts or omissions of Bureau of Prisons employees acting within the scope of their employment.” In fact he had suffered severe injuries as a result of the negligence — indeed the deliberate indifference — of Rogers and Marberry, both of whom were aware of his problems, could not have failed to realize that they had resulted from his being sentenced to an upper bunk, and could readily have alerted the prison’s medical and administrative staff to the need to give him a lower bunk. They did nothing. That’s what’s called deliberate (that is, knowing) indifference to a serious medical need.

Judge Easterbrook’s majority opinion speculates that medical personnel might issue lower-bunk restrictions for reasons that don’t imply the existence of a serious medical need; points out that not all brain tumors are serious; and reminds the reader that guards are not obliged to believe whatever a prisoner tells them. All true— but whether Rogers or 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. 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.

His administrative claims denied, Miller brought this civil suit pro se against Rogers, Marberry, and a nurse named Haddix (whom we can ignore however because there is no evidence that she neglected any of Miller’s needs), charging them with deliberate indifference to his medical problems in violation of the Eighth Amendment. The district judge granted summary judgment in favor of the defendants, however, mainly on the basis of the defendants’ claim that Miller was not listed in the prison’s electronic database as having a lower-bunk restriction. This as I’ll show is almost certainly incorrect.

He appealed to our court, again pro se, but while the appeal was pending the court recruited counsel for Miller and struck all the briefs that had been filed thus far with the court. Four months later Miller died, causes unknown — so far as appears no autopsy, was performed. Miller’s lawyer was permitted to substitute Miller’s estate as the appellant, and the appeal was argued to this panel on November 29 of last year.

Now it’s true that Rogers and Marber-ry, not being medical personnel, were entitled to “rely on the expertise of medical personnel,” Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011), but nonmedical prison personnel “cannot [be permitted to] simply ignore an inmate’s plight” of which they’re aware, id. — which a jury could well find was what happened in this case. The defendants knew after Miller’s first fall from an upper bunk, and from his complaints to both of them, that he was in danger of a serious injury if he remained in an upper bunk, and it would been the simplest thing in the world for either or both of them to have conveyed his complaints to the prison’s medical staff for confirmation of whether he already had, and if not should be given, a lower-bunk restriction.

Warden Marberry’s reactions to Miller’s complaints made to her repeatedly in person as she made her rounds through the Special Housing Unit were grossly insensitive — so callous that they could have been expected to cost her her job. All she would have had to do in response to Miller’s complaints was alert the prison’s medical staff to them; the staff would have responded with alacrity to a directive by the warden to determine whether Miller should be given (or indeed already had, as indeed he did have after January 2008) a lower-bunk restriction. It would have taken her no time, no effort, and no detailed knowledge of Miller’s condition to respond intelligently to his repeated and plausible complaints (plausible given his brain tumor and his falls from the upper bunk). After his first fall, and certainly after his second, it must have been obvious to Marberry and Rogers and any other prison personnel who knew of Miller’s condition that he should not be consigned to an upper bunk.

And finally we know that Miller had been given a lower-bunk restriction in January 2008, before both of his falls from his upper bunk, which occurred early the following year; he just didn’t have a paper copy of it and so couldn’t prove to Rogers’ satisfaction that he had such a restriction. Warden Marberry confirmed in writing that Miller had been given the restriction then and that it was recorded in the prison’s database. As a defendant’s statement against interest, that confirmation was sufficient to create a factual dispute that could not be resolved by the district judge on summary judgment. The contrary evidence was in fact weak, for remember that it was the warden who said that Miller had had a lower-bunk restriction since January 2008; and Rogers testified weakly that “it would have been” his practice to rely on the number two officer in the Special Housing Unit to check the database if an inmate complained that he had a bunk restriction that wasn’t being honored. And more weakly still: “I vaguely remember this inmate [Miller] and do not specifically recall what his medical issues were or may have been on January 6, 2009.”

Marberry also pleaded forgetfulness. She claimed no recollection of what if anything she’d done in response to Miller’s repeated complaints about being denied a lower bunk. (Obviously, nothing.) No defendant has argued that all the lower bunks were filled by inmates who, like Miller, could not be safely assigned to upper bunks, so that there was no room for him. Most important, there is no evidence that anyone checked the database to see whether, as Miller repeatedly said, he had a lower-bunk restriction.

The insouciance of Rogers and Marber-ry is remarkable, as well as deplorable, when one recalls that both knew about Miller’s brain tumor, about his wanting a lower bunk for medical reasons, and about at least his first fall from the upper bunk and his resulting hospitalization. (Almost certainly they knew of the second fall as well.) True, Rogers is just a guard, but as we said in Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 941 (7th Cir. 2015), “prison guards have a responsibility for prisoners’ welfare. If a prisoner is writhing in agony, the guard cannot ignore him on the ground of not being .a doctor; he has to make an effort to find a doctor, or in this case a dentist, or a technician, or a pharmacist— some medical professional.” See also Smego v. Mitchell, 723 F.3d 752, 767 (7th Cir. 2013). If that’s true of a mere guard, it is a fortiori true of a warden who knows that a prisoner’s potentially very dangerous health condition is being ignored by the prison’s guards and medical staff that she — the warden — supervises.

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....” 18 U.S.C. § 4042(a)(2). The Bureau failed in this case. Quarters with an upper-bunk assignment are not suitable for someone with the kind of brain tumor that Miller had; he was denied both safekeeping and care. This is a classic case of turning a blind eye to “a substantial risk of serious harm to a prisoner.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015).

Judge Easterbrook’s opinion cites Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), for its rejection of a theory of “supervisory liability” that would make supervisors liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” The Court in Iqbal thus rejected the proposition that a supervisor’s mere knowledge of a subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. ‘‘[Petitioners may not be held accountable for the misdeeds of their agents.... Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of a clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose ... liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.” Id.

I have no quarrel with that. But knowledge and duty can be entwined. “A prison official’s knowledge of prison conditions learned from an inmate’s communications can, under some circumstances, constitute sufficient knowledge of the conditions to require the officer to exercise his or her authority and to take the needed action to investigate and, if necessary, to rectify the offending condition.” Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996). Both Rogers and Marberry .were responsible for the safety of prison inmates and were on notice that Miller’s safety was jeopardized as a consequence of confining him to an upper bunk. They were complicit in his suffering and may have hastened his death.

A dog would have deserved better treat-. ment.

We should reverse.