Balsewicz v. Pawlyk, 19-3062

• Decision Date: 26 June 2020
• Docket Number: No. 19-3062,19-3062
• Citation: 963 F.3d 650
• Parties: John H. BALSEWICZ, a/k/a Melissa Balsewicz, Plaintiff-Appellant, v. Jonathan S. PAWLYK, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

963 F.3d 650

John H. BALSEWICZ, a/k/a Melissa Balsewicz,^* Plaintiff-Appellant,

v.Jonathan S. PAWLYK, et al., Defendants-Appellees.

No. 19-3062

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2020

Decided June 26, 2020

Amended July 2, 2020

David Michael Shapiro, Esq., Attorney, Roderick & Solange MacArthur Justice Center, Chicago, IL, for Plaintiff - Appellant.

John H. Balsewicz, pro se.

Clayton P. Kawski, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants - Appellees.

Nicole Brianne Godfrey, Attorney, University of Denver Sturm College of Law, Civil Rights Clinic, Denver, CO, for Amicus Curiae Former Corrections Directors.

John J. Hamill, Attorney, DLA Piper LLP (US), Chicago, IL, for Amici Curiae.

Before WOOD, Chief Judge, and MANION and KANNE, Circuit Judges.

KANNE, Circuit Judge.

When a prison official knows that an inmate faces a substantial risk of serious harm, the Eighth Amendment requires that official to take reasonable measures to abate the risk.

Inmate John "Melissa" Balsewicz reported to a prison guard that while she was in the shower house, another inmate threatened to beat her up.¹ The guard, Sergeant Jonathan Pawlyk, took no action in response to Balsewicz's report; and two days later, the inmate who had threatened Balsewicz punched her in the head repeatedly, causing her to fall unconscious.

Balsewicz filed a claim against Sergeant Pawlyk and other prison officials under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. She alleged that Sergeant Pawlyk failed to take reasonable measures to abate a known, substantial risk of serious harm to her, and thus violated one of her Eighth Amendment rights. Granting summary judgment to Sergeant Pawlyk, the district court reasoned that the threat Balsewicz reported to the guard could only be understood as expiring once the inmates left the shower house, so no factfinder could conclude that Sergeant Pawlyk knew Balsewicz faced an ongoing risk of serious harm.

Because a reasonable juror could conclude otherwise based on the submitted evidence, and because Sergeant Pawlyk is not entitled to qualified immunity, we reverse.

I. BACKGROUND²

The events underlying this lawsuit occurred at Waupun Correctional Institution in Wisconsin. Wisconsin Department of Corrections policy requires that transgender prisoners taking cross-gender hormones, like Balsewicz, must shower separately from inmates who are not transgender or intersex. See Wis. Dep't of Corrs., Div. of Adult Insts. Policy No. 500.70.27. In March 2017, Balsewicz began complaining that inmates who were not transgender or intersex were being allowed to shower with those who are, including her. Balsewicz eventually identified Denzel Rivers as one of those inmates, believing Rivers falsely claimed to be transgender to receive housing in a single cell.

On May 5, 2017, Rivers and Balsewicz were in a shower house with other inmates. Rivers told Balsewicz to stay out of the shower stall between two transgender inmates, and Balsewicz asked him why. Rivers responded, "Don't worry about it, punk ass h[o]nky! I'll beat the fuck out of you!" Another inmate asked Rivers, "Why you threaten her like that?" to which Rivers returned, "Mind your business before you get [the] same treatment."

Balsewicz finished showering and went straight to Sergeant Pawlyk, the regular supervising sergeant in the North Cell Hall, where prisoners with Gender Dysphoria are housed. Balsewicz told Pawlyk "everything which had transpired" in the shower house and complained that Rivers should not be showering with her and the other transgender inmates because he wasn't really transgender or intersex. She repeatedly asked Sergeant Pawlyk to report her concerns for her personal safety following Rivers's threat. Nearby inmates witnessed this interaction, and one recalled that Balsewicz "appeared agitated and fearful" and was talking in a "pleadingly assertive manner." Later that day, Balsewicz asked another prison official to remind Sergeant Pawlyk to report her "personal safety concerns of inmate River[s]’s threat, with a supervisor." Sergeant Pawlyk ultimately took no action on Balsewicz's complaint.

Two days later, when Rivers and Balsewicz were leaving a dining hall with other inmates, Rivers "without any type of provocation or warning" punched Balsewicz multiple times in the head. Balsewicz collapsed, lost consciousness, and experienced dizziness and numbness in her face.

After exhausting her administrative remedies, Balsewicz filed a complaint against Sergeant Pawlyk and other prison officials. The claim at issue here is one against Sergeant Pawlyk, under 42 U.S.C. § 1983, that he failed to protect Balsewicz from a known and substantial risk of serious harm from Rivers. The district court granted summary judgment to Sergeant Pawlyk. The court reasoned that Balsewicz had not produced enough evidence for a jury to conclude that the guard knew Rivers's threat was ongoing after the inmates finished showering. Balsewicz appealed, and Sergeant Pawlyk reasserted that he is entitled to qualified immunity.

II. ANALYSIS

We review both the district court's grant of summary judgment and Sergeant Pawlyk's assertion of qualified immunity de novo . Orlowski v. Milwaukee County , 872 F.3d 417, 421 (7th Cir. 2017). We first address whether a jury could decide that Sergeant Pawlyk knew Balsewicz faced a substantial risk of serious harm from Rivers after she left the shower house. We then turn to whether Sergeant Pawlyk is entitled to qualified immunity.

A. Genuine Issue of Material Fact

Summary judgment for Sergeant Pawlyk is appropriate if he, as the movant, has shown that no genuine dispute as to any material fact exists and he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Conversely—setting aside the guard's assertion of a qualified-immunity defense, which we address later—summary judgment is inappropriate if the submitted evidence would allow a reasonable jury to return a verdict for Balsewicz. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because Balsewicz bears the burden of proof at trial, a jury would not be able to return a verdict for her if she has "fail[ed] to make a showing sufficient to establish the existence of an element essential to [her] case." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Sergeant Pawlyk contends that this is precisely why summary judgment is appropriate: Balsewicz failed to support an element essential to her case—namely, Sergeant Pawlyk's knowledge that Balsewicz faced an excessive risk to her safety after she left the showers.

The guard's knowledge is indeed an essential part of Balsewicz's case, and it is the only contested element of her § 1983 claim. Her claim is that Sergeant Pawlyk, under color of state law, subjected Balsewicz to a deprivation of her Eighth Amendment right not to be inflicted with cruel and unusual punishment. See 42 U.S.C. § 1983. That right is enforceable against the state of Wisconsin through the Fourteenth Amendment. See Robinson v. California , 370 U.S. 660, 664–66, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

The Eighth Amendment's "cruel and unusual punishments" clause requires prison officials to "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer , 468 U.S. 517, 526–27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) ); see U.S. Const. amend. VIII. This means that a constitutional violation inheres in a prison official's "deliberate indifference" to a substantial risk of serious harm to an inmate. Farmer , 511 U.S. at 828, 114 S.Ct. 1970. A "deliberate indifference" violation has two components, one objective and one subjective.

The objective component is that the prisoner must have been exposed to a harm that was objectively serious. Farmer , 511 U.S. at 834, 114 S.Ct. 1970. No one contests that this criterion was met here. Indeed, Rivers's violent beating of Balsewicz in the head is the kind of in-prison assault that "is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’ " Id. (quoting Rhodes v. Chapman , 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) ); see, e.g. , Brown v. Budz , 398 F.3d 904, 910–11 (7th Cir. 2005).

The subjective component is that the prison official must have known of and disregarded an excessive risk to the inmate's health or safety.

Farmer , 511 U.S. at 837–38, 114 S.Ct. 1970 ; LaBrec v. Walker , 948 F.3d 836, 841 (7th Cir. 2020). Specifically, the official must have been "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," and he must have "draw[n] th[at] inference." Farmer , 511 U.S. at 837, 114 S.Ct. 1970.

Finally, an official is not liable if he takes reasonable measures to abate the known risk. Id. at 844, 114 S.Ct. 1970. It is undisputed that Sergeant Pawlyk took no action in response to Balsewicz's complaint. And Sergeant Pawlyk does not argue that his inaction would have been reasonable had he known Balsewicz continued to face a substantial risk of serious harm from Rivers after Balsewicz left the showers.

So, the only contested part of Balsewicz's claim is the subjective component: Sergeant Pawlyk's knowledge of a substantial risk of serious harm to Balsewicz.

A prison official's subjective knowledge can be shown "in the usual ways" that facts are demonstrated, "including inference from circumstantial evidence." Id. at 842, 114 S.Ct. 1970. For example, if an inmate provides evidence that the risk of serious harm was obvious, a factfinder could reasonably infer that the official knew of the risk. Id. Likewise, a factfinder could typically infer an official's knowledge from evidence that the inmate complained to the official about a specific threat to her safety—so long...