Lewis v. Richards

• Decision Date: 24 February 1997
• Docket Number: No. 95-3785,95-3785
• Citation: 107 F.3d 549
• Parties: Tommy Ray LEWIS, Plaintiff-Appellant, v. Thomas D. RICHARDS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 549

107 F.3d 549

Tommy Ray LEWIS, Plaintiff-Appellant, v. Thomas D. RICHARDS, et al., Defendants-Appellees.

No. 95-3785.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 1996.

Decided Feb. 24, 1997.

Dave Welter (argued), Valparaiso University Law Clinic, Valparaiso, IN, for Plaintiff-Appellant.

Pamela Carter, Anthony Overholt (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.

Before COFFEY, FLAUM, and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

This case involves the prison problem of coping with violence. Tommy Ray Lewis, a state prisoner, sued several employees and officials at the Westville (Indiana) Correctional Center ("WCC"), claiming that they violated his Eighth Amendment ¹ right to be free from cruel and unusual punishment by being deliberately indifferent to three separate sexual assaults to which Lewis was subjected. The district court granted summary judgment to defendants. Lewis appeals, arguing that unresolved issues of material fact--namely, whether defendants were aware of, and disregarded, a substantial risk to his health and safety in the form of sexual assaults by gang members in the prison--precluded summary judgment. We modify the judgment, and affirm as modified.

I.

Because this is an appeal from summary judgment, we view the facts in the light most favorable to Lewis. Jelinek v. Greer, 90 F.3d 242, 243 (7th Cir.1996). Lewis was serving a four-year sentence at the WCC. He was housed with the general prison population in November of 1990. At no time before the first attack had he ever advised prison authorities that he feared that he was in danger, nor had he requested that he be housed separately from any other inmates. ² On November 23, two inmates beat and sexually assaulted Lewis in one of the prison dormitories. Lewis maintains that both were members of the Gangster Disciples, a gang which, as defendants concede, is one of the predominant gangs among inmates at the WCC. Lewis maintains that he immediately reported the attack to the officer in charge of the dormitory. The officer never reported this incident to his superiors. His only response, according to Lewis, was to make a number of snide and vulgar comments about the incident. Subsequently, Lewis says that about twenty members of the Disciples, including the two who had committed the rape, confronted him and threatened him with physical harm if he told anyone else about the attack. Lewis inferred that the officer he told (whose employment at the prison was later terminated for reasons unconnected to this case) relayed the information to the gang members instead of passing the information up the prison's chain of command, as he was supposed to do. Lewis took no further action until April 18, 1991, when he again reported the same offense to two different prison officials after visiting the prison infirmary, seeking medical treatment for venereal warts which, according to Lewis, he contracted as a result of the attack.

When he reported the rape on April 18th, Lewis claims that he also requested protection from those inmates who had perpetrated the assault upon him, and further claims that he had informed the defendant prison authorities that his attackers were members of the Disciples gang, and also asked for an investigation into gang violence at the WCC. Defendants responded and continue to maintain that Lewis neither identified his attackers nor sought protective custody. Eventually Lewis was transferred to a different dormitory. On June 3, 1991, Lewis claims that several Gangster Disciples again threatened and harassed him about being a "snitch," asking if he was informing on gang members during visits to the infirmary. Lewis says he did not report this initial June 3d encounter because he feared retaliation for being a snitch. That night, in the dormitory's bathroom, Lewis was again sexually Lewis was placed in protective custody ten days later on June 13, 1991, and remained there almost two years. Lewis claims that Gangster Disciples members, especially an inmate named Schaefer, who was one of the perpetrators of the second rape and served food to inmates at the prison mess hall, continued to harass him while he was in protective custody. On March 10, 1992, Lewis filed suit in federal district court under 42 U.S.C. § 1983, claiming that defendants were deliberately indifferent to his safety because they knew about and ignored the threat which the Disciples posed, and thus their failure to protect him from the two sexual assaults violated his constitutional rights.

assaulted by two different inmates, both, according to Lewis, members of the Disciples. His attackers, who were not separatees of Lewis (supra note 1), also choked him and stabbed him with a knife. Lewis immediately reported the second attack, and received medical attention for his wounds. The next day, Lewis filed a grievance with prison officials, complaining about the June 3d rape and attack.

On March 14, 1993, while the lawsuit was pending, Lewis allegedly physically attacked a nurse who was treating him for chest pains. Prison officials placed Lewis on a suicide prevention watch ³ and transferred him to a seclusion cell in the prison psychiatric unit. Three days later, a psychiatric team determined that Lewis was no longer suicidal and could be moved out of the psychiatric unit. In accordance with the WCC's standard practice, Lewis was removed from the seclusion cell on March 17th and placed in the general population dormitory of the psychiatric unit, pending a return to the protective custody unit. Lewis insists that he protested being placed in the psychiatric unit's general population dormitory, and reminded prison officials that he had protective custody status.

Lewis claims that on the night of March 18, 1993, three inmates raped him in the general population dormitory of the psychiatric unit, telling him they were doing it "for Schaefer," the inmate who perpetrated the second assault and, according to Lewis, verbally harassed him throughout his tenure in protective custody. Lewis concedes that neither the three inmates who raped him nor any other resident of the psychiatric unit's general population dormitory were listed as separatees of his.

The government presents a quite different version of the March 18th incident: the warden on the psychiatric unit observed suspicious behavior near Lewis' bed, and apprehended Lewis and three other inmates on suspicion of engaging in sexual activity with Lewis. Lewis was charged with engaging in consensual sexual activity, and the WCC's Conduct Adjustment Board ("CAB") found him guilty of the charged offense of participating in consensual sexual activity after a disciplinary hearing. Lewis, who lost six months' good-time credit, did not appeal the CAB's decision. He did, however, amend his lawsuit to include the third alleged attack. After discovery, the district court granted defendants' motion for summary judgment, ruling that Lewis failed to present evidence that he had provided defendants with actual knowledge of threats to his safety for each of the incidents to which he referred. Lewis appeals.

II.

Lewis argues that the district court should not have granted defendants' motion for summary judgment, because he presented evidence sufficient to establish that defendants knew of the risk to his safety, and disregarded it. We review a grant of summary judgment de novo, and will affirm only where there exist no disputed issues of material fact. Griffin v. City of Milwaukee, 74 F.3d 824, 826-27 (7th Cir.1996); Fed.R.Civ.P. 56(c).

"[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 831-33, 114 S.Ct. 1970,

                1976, 128 L.Ed.2d 811 (1994);  Langston v. Peters, 100 F.3d 1235, 1237 (7th Cir.1996).  Failure to provide such protection, however, violates the Eighth Amendment's prohibition of cruel and unusual punishment only if "deliberate indifference by prison officials [to the prisoner's welfare] effectively condones the attack by allowing it to happen[.]"  Haley v. Gross, 86 F.3d 630, 640 (7th Cir.1996);   Jelinek, 90 F.3d at 244.   Thus, in order that he might sustain his Eighth Amendment claim, Lewis must demonstrate that the defendants had "actual knowledge of an impending harm easily preventable, so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant's failure to prevent it."  McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir.1991).  It is not enough that a reasonable prison official would or should have known that the prisoner was at risk:  the official must actually know of and disregard the risk to incur culpability.   Farmer, 511 U.S. at 837-38, 114 S.Ct. at 1979
                

A. The Attacks of November 23, 1990 and June 3, 1991

After reviewing the record, we are convinced that Lewis failed to present sufficient evidence regarding the first two attacks (on November 23 and June 3) to survive summary judgment. Lewis in effect concedes that prior to the first attack, prison officials had no knowledge that he was at risk, for he neither advised any of the authorities that his safety was in jeopardy, ⁴ nor has he pointed out other facts or information the prison officials might have had at their disposal that would have led them to conclude that he was at risk. Farmer, 511 U.S. at 838-42, 114 S.Ct. at 1981-82; see infra at 10-11. Without such knowledge, defendants can hardly have been deliberately indifferent to Lewis' safety. See Goka v. Bobbitt, 862 F.2d 646, 647-48 (7th Cir.1988). Neither, prior to the second attack, did Lewis specifically seek protection from the two inmates who assaulted him on that occasion, identify the twenty gang members who threatened him after the first rape, or inform authorities of the threats which were made against him earlier in the day of the second attack. Therefore, Lewis did not demonstrate...