In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1920

SCOTT ELWELL,

Plaintiff-Appellant,

v.

KENNETH P. DOBUCKI,

Defendant-Appellee.



Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 93-3068--Richard Mills, Judge.


Argued February 8, 2000--Decided August 10, 2000



  Before Cudahy, Manion, and Diane P. Wood, Circuit
Judges.

  Diane P. Wood, Circuit Judge. In late 1991,
Kenneth Dobucki, the warden at Graham
Correctional Center (a medium security prison run
by the state of Illinois), was assigned the task
of hiring three new lieutenants for Graham.
Eighteen employees applied for those three
vacancies, 15 of whom worked at Graham and three
of whom were employed at other facilities
operated by the Illinois Department of
Corrections (DOC). This case was brought by one
of the disappointed applicants, Scott Elwell, who
believed that either prohibited political
favoritism or race discrimination explained why
he had been unsuccessful. The district court
granted Warden Dobucki’s motion for summary
judgment on grounds of qualified immunity for the
equal protection claim and on the merits for the
political affiliation claim. Elwell appealed only
from the adverse judgment on the equal protection
claim based on qualified immunity. We affirm.

  Our account of the facts would normally take
them in the light most favorable to Elwell, as
the nonmoving party, but here again we have a
case in which the nonmovant chose not to contest
the moving party’s statement of undisputed facts,
filed here under Local Rule 7.1(D)(1) of the
Central District of Illinois. We therefore accept
those facts as uncontested, as did the district
court.

  Warden Dobucki went about filling the three
1991 vacancies, as he was required to do under
pertinent Illinois DOC rules, by posting a notice
state-wide. Of the 24 applicants who initially
came forward, Dobucki found that 18 were eligible
for the lieutenant position. These 18 were
interviewed in January 1992 by a three-person
team from Graham (not including Dobucki himself).
Based on those interviews and other information
in the file, Assistant Warden Michael Baker
prepared a memorandum for Dobucki ranking the
candidates. He submitted the memorandum to Warden
Dobucki at the end of January. The top five were
(1) Charlotte Crockran, a black woman who held
another job at Graham; (2) Theodore Macon, an
African-American man who worked at another
correctional center; (3) Ron Krueger, a white man
who worked at another correctional center; (4)
James Cohan, a white man who held another job at
Graham; and (5) Elwell, who is white and who held
another job at Graham. In June of 1992, Dobucki
selected Crockran, Macon, and Cohan for the
positions.

  Elwell was upset by being passed over for the
promotion and filed a 42 U.S.C. sec. 1983
complaint. His initial complaint alleged that
Dobucki denied him the promotion because of his
political affiliations, in violation of the First
Amendment. In 1994 he amended the complaint to
add the charge that he was passed over because he
was white, in violation of the Equal Protection
Clause. This latter claim rested on Elwell’s
belief that Dobucki had a policy of hiring in-
house (i.e. applicants presently working at
Graham). Had Dobucki followed that policy, he
would have still chosen Crockran and Cohan, but
Elwell would have replaced Macon as the third
choice. According to Elwell, Dobucki veered from
his normal hiring policy, passing over Elwell and
hiring Macon, because he wanted more African-
American lieutenants. Evidence in the record
showed that as of February 1992 (before the
hiring decision in June 1992), only four of the
25 lieutenants working at Graham were African-
American. The record further showed that as of
the same time, there were 1,269 inmates at
Graham, 46% of whom were African-American. The
security staff included one major, six captains,
the 25 lieutenants, 22 sergeants, and 259
correctional officers; 16 of those individuals,
or 3.6%, were African-American.

  The district court granted Dobucki’s motion for
summary judgment on the First Amendment count in
October 1994. Years later, in March of 1998, it
agreed that he had qualified immunity on the
equal protection count and it therefore granted
his motion for summary judgment on that theory as
well. We review the grant of summary judgment de
novo, examining the record (including its lack of
uncontested facts) in the light most favorable to
Elwell to see if he has shown any genuine issue
of material fact. See Bahl v. Royal Indem. Co.,
115 F.3d 1283, 1289-90 (7th Cir. 1997); Fed. R.
Civ. P. 56(c).

  Qualified immunity is a doctrine which allows
government officials the freedom to perform their
discretionary functions without fear of potential
liability for civil damages. See Harlow v.
Fitzgerald, 457 U.S. 800, 816-18 (1982).
Officials lose their immunity only when their
conduct violates clearly established statutory or
constitutional rights. See id. at 817. In our
review of Dobucki’s qualified immunity defense,
the question is not whether Dobucki actually
overstepped the boundaries of the law in his
hiring decision. We must consider only whether
Elwell has shown that the legal standards for the
application of equal protection to the
circumstances he alleges were clearly established
in June of 1992 when Dobucki made the hiring
decision. See Erwin v. Daley, 92 F.3d 521, 525
(7th Cir. 1996); see also Anderson v. Creighton,
483 U.S. 635 (1987) (emphasizing the need to look
at the particular situation facing the
defendant). Dobucki is protected by qualified
immunity unless, based on such clear legal
standards, a reasonable person would have known
that the hiring decision would violate the
Constitution. See Erwin, 92 F.3d at 525.

  We begin with a look at the legal landscape in
June of 1992. This is ground we largely covered
in our decision in Erwin v. Daley, supra, which
dealt with the similar question whether public
officials of the City of Chicago were entitled to
qualified immunity with respect to the City’s
program to increase minority representation among
the ranks of officers in the Chicago Police
Department. The reference year in Erwin was 1990,
rather than 1992 as here, but the difference in
the underlying caselaw is immaterial. In both
instances, the most recent authoritative decision
from the Supreme Court was City of Richmond v.
Croson, 488 U.S. 469 (1989), which dealt with
Richmond’s program that required 30% of
government subcontracts to go to minority-owned
businesses. We concluded in Erwin that Croson did
not clearly foreclose the use of numerical
promotional goals for the promotion of minority
police officers. 92 F.3d at 526. For example,
only a year after Croson, in Metro Broadcasting
v. FCC, the Court upheld an FCC licencing program
which favored minority businesses against an
Equal Protection Clause challenge, applying
intermediate scrutiny to the program. 497 U.S.
547, 564-65 (1990).

  This was the backdrop against which Warden
Dobucki acted in 1992. He was not required to
have a crystal ball that would have revealed the
Supreme Court’s 1995 holding in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995),
that all racial classifications, "benign" or
otherwise, were subject to the strict scrutiny
standard. Id. at 226. Furthermore, had he known
that, he would also have known about the Court’s
cautionary statement in Adarand dispelling the
then-commonly held notion that "strict scrutiny
is strict in theory, but fatal in fact." Id. at
202. This court’s 1996 decision in Wittmer v.
Peters, 87 F.3d 916 (7th Cir. 1996), which upheld
a policy of considering race when promoting
lieutenants in a minimum security boot camp for
nonviolent male offenders, demonstrates plainly
that the Warden could reasonably have thought in
1992 that he was entitled to do precisely the
same thing at his prison. We are certainly not
prepared to say that the state of law in 1992 was
clearly established in the opposite direction,
when we ourselves continue to uphold some hiring
decisions that take race into account. (While it
is of no immediate legal relevance to this case,
it is interesting to note that Wittmer was well
known to the parties in this case; it was pending
before the same district judge, and the
plaintiffs challenging the policy that was
eventually upheld were represented by the same
lawyer who represents Elwell.)

  A snapshot of the law in 1992, then, shows that
there was no clearly established prohibition
against taking race into account in a hiring
decision within a prison or police department
context. We are assuming for purposes of this
decision that this is what Warden Dobucki did; we
note as well that he denies the existence of a
rigid policy requiring him to hire in-house
candidates over external applicants and indeed
denies that this case is properly characterized
as an "affirmative action" situation at all. If
there were no policy favoring internal candidates
(and the Illinois DOC requirement of a state-wide
posting tends to support that position), then
Elwell would not have received the job in any
event. If Warden Dobucki had followed the strict
rank order on the list, he would have hired
Crockran (African-American), Macon (African-
American), and Krueger (white). What the Warden
actually did was to skip over Krueger for the
number four applicant, Cohan--also white, but
from Graham unlike Krueger. Only a rigid policy
of preferring Graham applicants would have
brought the Warden far enough down the list to
reach Elwell, who had the number five spot. Thus,
this is the odd "affirmative action" challenge in
which the state official is accused of hiring
people who were ranked as better qualified than
the plaintiff, instead of dipping further down
into the list for some reason and thus passing
over a more highly ranked minority candidate.

  But we cannot resolve the disputed fact
question about the alleged preference for Graham
applicants. Even if there were such a policy, we
cannot find that Dobucki’s action would clearly
have been found to violate the Constitution.
Elwell admits that Dobucki may have had
operational reasons for using race as one factor
in hiring lieutenants: Graham was a medium
security prison with many African-American
inmates. Discipline was critically important for
the security and safety of the prison. Dobucki
allegedly deviated from his policy of internal
hiring when he chose Macon (an African-American
from Centralia) for the second spot instead of
skipping down to Cohan (from Graham), and then to
Elwell for the third spot. Nothing in 1992 would
or should have led Warden Dobucki to the
conclusion that such an action would be a clear
violation of Elwell’s equal protection rights. He
is therefore entitled to qualified immunity, and
the judgment of the district court is Affirmed.
