Smith v. Ullman

• Decision Date: 31 August 1994
• Docket Number: No. 4:CV92-3083.,4:CV92-3083.
• Citation: 874 F. Supp. 979
• Parties: Jeff S. SMITH, Plaintiff, v. Gary T. ULLMAN, Defendant.
• Court: U.S. District Court — District of Nebraska

874 F. Supp. 979

Jeff S. SMITH, Plaintiff, v. Gary T. ULLMAN, Defendant.

No. 4:CV92-3083.

United States District Court, D. Nebraska.

June 14, 1994.

Memorandum after Recommitment for Reconsideration August 31, 1994.

Judith A. Vitamvas, Lincoln, NE, for plaintiff.

Terri M. Weeks, Lincoln, NE, for defendant.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the Court on the Magistrate Judge's Report and Recommendation (filing 72). No objections to such report and recommendation have been filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

The Court has reviewed the Magistrate Judge's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4 and finds after de novo review that the report and recommendation should be adopted and judgment entered in favor of the defendant.

As the Magistrate Judge pointed out in his thoughtful and well-reasoned report and recommendation, although the plaintiff suffered a brutal attack in an environment which did not allow him or prepare him to protect himself, nor did it make any effort to protect him in this instance, the law is such that, based on the facts of this case, the defendant cannot be held responsible for failing to protect plaintiff. While this may seem to unfair to plaintiff, and to others who experience a visceral reaction to tales of violence in the prisons, the caselaw establishes that prison officials must receive specific notice of a specific risk of harm to the inmate before they must mobilize their resources to protect him. Accordingly,

IT IS ORDERED:

1. The Magistrate Judge's Report and Recommendation (filing 72) is adopted; and

2. Separate judgment shall be entered this date in favor of defendant.

REPORT AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

An evidentiary hearing was held in this matter before the undersigned on April 28, 1994. The following constitutes my findings and recommended disposition of the case in accordance with 28 U.S.C. § 636(b)(1)(B).¹

Plaintiff brought this civil rights action as a result of an alleged attack by four inmates while he was incarcerated at the Lincoln Correctional Center Evaluation Unit ("LCCEU"). The Defendant, Gary Ullman, was employed as a Correctional Officer at LCCEU at the time of the assault. Plaintiff alleges Defendant Ullman violated his Eighth Amendment right to be free from violent assaults from fellow inmates. I conclude that judgment should be entered for Defendant Ullman.

FACTS

Plaintiff was assigned to LCC-EU on December 2, 1991. On December 28, 1991, plaintiff alleges he was assaulted by four other inmates: Artist Hall, Ronald Washington, Darion Love and Malcolm Weston. Plaintiff is white; the four alleged assailants are black. Plaintiff testified that he had had no prior contact with any of the assailants, but that he had been warned about Washington. Additionally, plaintiff testified that he had used the word "nigger" the previous day, and that he believes this was the reason for the assault. Plaintiff denies, however, that he called any of the alleged assailants a "nigger."

During breakfast on December 28, Darion Love approached plaintiff and told him that what plaintiff had said "wouldn't go unnoticeable sic." Plaintiff testified that he was not worried about Love's statement, and continued his day as usual. After lunch that day plaintiff was approached by Love and Artist Hall, who threatened plaintiff by stating that plaintiff "wasn't going to make it through the day." While this threat was entirely verbal, plaintiff testified that he took it seriously because other inmates were nearby and discussing the matter.

Prompted by this concern, plaintiff approached Corporal Joseph Byler, the correctional officer then on duty. Plaintiff testified that Byler took no action, responding that he saw no problem. Byler testified that he was never approached by plaintiff.² Plaintiff returned to his cell.

Between 1:45 and 2:00 p.m. Byler was replaced by incoming correctional officer Ullman. Ullman and Byler discussed Byler's shift; both Byler and Ullman testified that the alleged threats to plaintiff were not discussed.

Plaintiff's cell door remained locked until 1:45 p.m., when doors were "run" (i.e. unlocked) to allow the inmates to exit and return. Plaintiff testified that between 1:50-1:55 p.m. he approached Defendant Ullman, now on duty, and told him that he had been threatened by Love and Hall, and asked to be removed. Plaintiff testified that he did not, however, describe the threat in more detail. Plaintiff further testified that Ullman responded that he "would keep an eye on plaintiff." Ullman testified that plaintiff told him he had been threatened earlier in the day, but refused to provide any further details or request removal.³ Ullman testified that plaintiff's demeanor during this exchange was "normal" and "quiet," but that this was the first time plaintiff had initiated conversation with him at the beginning of this shift. Ullman further noted that plaintiff impressed him as being naive, in that he "didn't know what prison was like." Ullman testified that he did not believe that plaintiff's life or well being was threatened at the time.

After this exchange Ullman returned to the control room, where he examined the log book to see if any entries had been made regarding plaintiff and any alleged threat.⁴ Ullman found no such entries and took no further action.

Plaintiff waited for Ullman for approximately five minutes. When Ullman did not return, plaintiff walked to the upper level of G Unit to watch television. On his way to the television area, plaintiff passed the cell of Ronald Washington. Washington began talking to plaintiff, summoning plaintiff towards his cell. Plaintiff testified that he was not concerned about Washington, as he had had no prior contact with him and assumed Washington only wanted plaintiff to hand him something or give him a light for a cigarette. Plaintiff walked to the door of Washington's cell, but did not enter. Malcolm Weston then appeared and pushed plaintiff into Washington's cell, hitting plaintiff in the upper left side of his face. Artist Hill and Darion Love then entered the cell and began beating plaintiff. Ullman testified that neither he nor the full-time control room officer saw anything of the assault. Plaintiff eventually lost consciousness.

Sometime later plaintiff regained consciousness and walked back to his cell, collapsing onto his bed and again losing consciousness. Although plaintiff's cellmate was there at the time, he apparently believed plaintiff was merely sleeping. Plaintiff remained unconscious for the next few hours. Ullman made hourly checks past plaintiff's cell, but assumed plaintiff was sleeping. Plaintiff did not regain consciousness until after supper, at which time he had his cellmate contact Ullman. The cellmate told Ullman that plaintiff had been assaulted. Ullman had plaintiff taken to the hospital. The next day, December 29, plaintiff filed an interview request seeking protection from his assailants. (Defense Exhibit 108.)

Plaintiff's injuries were extensive. Plaintiff underwent surgery on his face, after which his jaws were wired shut for two to three weeks such that he could take only liquid foods. Plaintiff lost weight, lost some feeling in his jaw, and saw a "black dot" in his left eye for some time. Plaintiff remained in the hospital for two and one-half months, after which he was transferred to the Air Park work release center.

DISCUSSION

"Prisons are dangerous places." McGill v. Duckworth, 944 F.2d 344 (7th Cir.1991), cert. denied, 503 U.S. 907, 112 S.Ct. 1265, 117 L.Ed.2d 493 (1992). However, inmates have the right to be free from violent attacks by other inmates. Andrews v. Siegel, 929 F.2d 1326, 1330 (8th Cir.1991). "The safety of an institution's guards and inmates is perhaps the most fundamental responsibility of the prison administration." Hewitt v. Helms, 459 U.S. 460, 473, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983).

To prevail on a failure to protect claim, plaintiff must show that prison officials "were deliberately indifferent to his constitutional rights, either because they actually intended to deprive him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates." Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir.1982) (per curiam); Andrews, 929 F.2d at 1330.

A recent Seventh Circuit decision provides a clarifying overview of the failure to protect claim under the Eighth Amendment; I therefore quote it at length:

Relying on identical provisions in the English Bill of Rights of 1689 and the Virginia Declaration of Rights of 1776, the Framers of the eighth amendment sought, as its words suggest, to prevent judges and legislators from imposing on citizens barbarous or "cruel and unusual" forms of punishment. See generally Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Calif.L.Rev. 839 (1969). Consequently, the eighth amendment has long been thought to prohibit such inhumane punishment as torture, lingering death, In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890), drawing and quartering, disembowelling, and burning at the stake. Wilkerson v. Utah, 99 U.S. 130, 135-36, 25 L.Ed. 345 (1879). But beyond this, the Supreme Court has interpreted the eighth amendment "in a flexible and dynamic manner," Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 2924, 49 L.Ed.2d 859 (1976) (joint opinion), to reach beyond the extreme physical punishments proscribed in early American history. Today it prohibits punishments which, although not physically barbarous, "involve the unnecessary and wanton infliction of pain," id., 428 U.S. at 173, 96 S.Ct. at 2925, or are grossly disproportionate to the severity of the crime. Harmelin v. Michigan, 501 U.S. 957, 997-99, 111 S.Ct. 2680, 2703, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring).

...