Matthew Labrec v. Lindsay Walker ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1682
MATTHEW LABREC,
Plaintiff‐Appellant,
v.
LINDSAY WALKER, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:16‐cv‐00774‐jdp — James D. Peterson, Chief Judge.
____________________
ARGUED SEPTEMBER 17, 2019 — DECIDED JANUARY 24, 2020
____________________
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. Matthew LaBrec brought an action
under 42 U.S.C. § 1983 against a number of Wisconsin Depart‐
ment of Corrections employees, alleging that they violated his
rights under the Eighth Amendment of the Constitution.
Specifically, LaBrec, who is an inmate, alleged that the de‐
fendants were aware that his cellmate posed a danger to him
and that they failed to protect him from that cellmate. The dis‐
2 No. 18‐1682
trict court granted summary judgment in favor of the defend‐
ants and declined to exercise supplemental jurisdiction over
the state claims that LaBrec also brought. LaBrec now appeals
that grant of summary judgment. He also appeals the district
court’s denial of his request for appointed counsel. We review
the court’s grant of summary judgment de novo. Sinn v. Lem‐
mon, 911 F.3d 412, 419 (7th Cir. 2018). As for the denial of the
request for counsel, we review the court’s decision only for
abuse of discretion. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.
2014).
The plaintiff and defendants present different accounts of
what LaBrec communicated to them and to the doctors at Psy‐
chological Services. However, in considering the defendant’s
motion for summary judgment, the district court was re‐
quired to take all evidence, including reasonable inferences
from that evidence, in the light most favorable to the plaintiff.
Sinn, 911 F.3d at 419. The facts underlying the Eighth Amend‐
ment claim, in the light most favorable to LaBrec and credit‐
ing his version over that of the defendants for the purpose of
the summary judgment motion, are as follows.
LaBrec was an inmate housed at Columbia Correctional
Institute, a maximum security institution. His conduct report
history included prior assaults on inmates and staff, and on
July 20, 2016, he was involved in an incident that resulted in
his transfer from General Population to the Restricted Hous‐
ing Unit. In that incident, LaBrec threw a chair after he be‐
came upset that his phone call was disconnected upon the ex‐
piration of his allotted phone time, and began kicking and
pounding on the control center windows and refused to go
back to his cell. He received a conduct report for that incident
and was transferred that night to the Restricted Housing Unit
No. 18‐1682 3
where he was placed in a cell with Patrick McNeely. McNeely
was in the Restricted Unit following a conduct report for as‐
sault involving McNeely and his prior cellmate.
LaBrec was designated a “pair with care” inmate, which
means that the security staff needed to take extra care in eval‐
uating the choice of cellmates for him. Because of that status,
the Psychological Services Unit was supposed to be consulted
prior to assigning a cellmate with LaBrec, but that consulta‐
tion never occurred before LaBrec was placed with McNeely.
LaBrec informed the defendants repeatedly of his status as a
“pair with care” inmate.
The morning following his transfer to the cell with
McNeely, LaBrec demanded—and was allowed—to see Dr.
Julia Persike in the Psychological Services Unit. LaBrec in‐
formed Persike that McNeely was talking about beating up
his last cellmate and that LaBrec felt intimidated by it and did
not feel safe with McNeely. LaBrec further told Persike that
McNeely was “acting very unstable, he would get all worked
up, talking really fast, shaking his head back and forth, raising
his voice and cursing,” and that McNeely was “acting crazy”
and “displaying very erratic behavior.” LaBrec Separate Ap‐
pendix (“App.”), LaBrec Prosposed Findings of Facts at A110
¶ 5 and Declaration of LaBrec A121 ¶¶ 19, 20. Persike and
LaBrec discussed both the safety issue and McNeely’s history
of methamphetamine use as reasons for moving LaBrec from
that cell assignment.
Persike discussed with defendants Joshua Craft and Debra
Wilson, who were correctional officers, his conversation with
LaBrec and the concerns with LaBrec’s cellmate situation.
They then proposed a move to a different cell with a different
cellmate. LaBrec asked them to move him as soon as possible
4 No. 18‐1682
as he feared he was unsafe. Despite their assurance, however,
he was not moved by the end of their day shift. LaBrec con‐
veyed to defendants Jason Chatman, the second‐shift ser‐
geant, and correctional officer Dustin Meeker, who were
working the night shift, that he was supposed to be moved
and did not feel safe in the cell with McNeely. When it became
apparent to LaBrec that he would not be moved that night, he
had an anxiety attack and began crying and asking for help.
Security staff called Psychological Services, and Dr. Schwenn
came to LaBrec’s cell and spoke with LaBrec. LaBrec asked to
be pulled out of the cell to discuss the problem confidentially,
but that request was denied so he spoke with Schwenn cell‐
side. LaBrec informed Schwenn that he did not feel safe in the
cell with McNeely and that he was supposed to be moved.
Schwenn asked LaBrec to be specific as to what would hap‐
pen, and LaBrec explained he was unable to be more specific
as he could not predict his cellmate’s actions. No action was
taken to transfer him to a different cell.
The following morning, LaBrec again sought help from
Psychological Services, this time meeting with Dr. Dan Norge
and conveying his concerns. LaBrec subsequently spoke with
defendant Lindsay Walker, the Unit Manager, as part of a
conduct report meeting, and again explained that he did not
believe that he was safe in his cell with McNeely. Walker de‐
nies that LaBrec informed her that he felt unsafe, and states
that if he had told her that he felt at risk of harm from his cell‐
mate during that meeting, she would not have returned him
to the cell. Throughout that time, LaBrec repeatedly informed
the defendants that the “pair with care” protocol was not fol‐
lowed with his cellmate assignment.
No. 18‐1682 5
LaBrec was not reassigned to a different cellmate, and at
2:30 a.m. on July 24—three days after the initial assignment to
that cell—McNeely and LaBrec were involved in an alterca‐
tion in their cell in which McNeely stabbed LaBrec with a pen
behind his left ear, in the back, and in his left shoulder. Both
inmates received conduct reports for the assault, and
McNeely was transferred to the most restrictive housing unit,
RHU‐1, whereas LaBrec remained in a cell in the mid‐level
restricted housing, RHU‐2. A search of the cell following the
assault revealed a note from McNeely in which McNeely set
forth his intention to stab LaBrec.
It is well established that prison officials face a duty to pro‐
tect prisoners from violence at the hands of other prisoners
and that the failure to protect can violate the Eighth Amend‐
ment. Farmer v. Brennan, 511 U.S. 825, 833 (1994). The prohi‐
bition against cruel and unusual punishment in the Eighth
Amendment “obligates prison officials to ‘take reasonable
measures to guarantee the safety of … inmates.’” Sinn, 911
F.3d at 419, quoting Farmer, 511 U.S. at 832.
A prisoner seeking to establish a violation of that Eighth
Amendment right must show that the prison official was de‐
liberately indifferent to an excessive risk to the prisoner’s
health or safety, which includes both an objective and subjec‐
tive component. Id.; Gevas v. McLaughlin, 798 F.3d 475, 480 (7th
Cir. 2015); Farmer, 511 U.S. at 838. First, the harm to which the
prisoner was exposed must be an objectively serious one.
Sinn, 911 F.3d at 419. The parties do not dispute that this cri‐
terion is met. Second, the prison official must have actual, not
merely constructive, knowledge of the risk to be liable. Id.
This requires that the official “’must both be aware of facts
from which the inference could be drawn that a substantial
6 No. 18‐1682
risk of serious harm exists, and he must also draw that infer‐
ence.’” Gevas, 798 F.3d at 480, quoting Farmer, 511 U.S. at 837;
Sinn, 911 F.3d at 419. “Whether a prison official had the req‐
uisite knowledge of a substantial risk is a question of fact sub‐
ject to demonstration in the usual ways, including inference
from circumstantial evidence … and a factfinder may con‐
clude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Farmer, 511 U.S. at 842;
Gevas, 798 F.3d at 480. Because a prison official’s duty under
the Eighth Amendment is to ensure “reasonable safety,”
prison officials who actually knew of a substantial risk to in‐
mate health or safety can nevertheless escape liability if they
responded reasonably to the risk, whether or not the harm
was ultimately averted. Farmer, 511 U.S. at 844‐45.
Only the second part of the test is at issue here, which is
whether LaBrec failed to present sufficient evidence to allow
the inference that the prison officials had the requisite
knowledge to act with deliberate indifference. The district
court concluded that the allegations of the threat to LaBrec
were too vague and generalized to meet that standard be‐
cause LaBrec failed to explain why he felt unsafe.
The court considered, in turn, the evidence that McNeely
had assaulted his prior cellmate, that LaBrec was classified as
a “pair with care” prisoner, that LaBrec told the defendants
that he did not feel safe and McNeely was acting crazy, and
that McNeely wrote a note to officers that stated that he was
going to stab LaBrec. First, the court stated that even if it as‐
sumed that all the defendants were aware that McNeely had
assaulted his prior cellmate, that would not show the defend‐
ants knew of a substantial risk that McNeely would assault
LaBrec as well. The court reasoned that many prisoners have
No. 18‐1682 7
engaged in aggressive or violent behavior and therefore an
assailant must have an unusually violent history to require
prison officials to treat him specially. The court held that in
general one previous fight is insufficient to indicate a prisoner
was unusually violent. For its conclusion, the court relied on
Owens v. Hinsley, 635 F.3d 950 (7th Cir. 2011), arguing that in
Owens officials were not held liable even though they knew
the same prisoners had been involved in an altercation earlier.
The court next considered LaBrec’s status as a “pair with
care” prisoner. The court questioned the significance of that
status, stating that neither side suggested he was therefore a
member of a vulnerable group. Even assuming, however, that
LaBrec was a vulnerable prisoner, the court concluded that
would not be enough to show that the prison officials knew
that McNeely posed a substantial risk to LaBrec’s safety.
The court then turned to LaBrec’s communications of the
threat to the defendants. The court deemed LaBrec’s state‐
ment that he “did not feel safe” to be too generalized to con‐
vey a threat because LaBrec was not specific as to why he was
not safe. The court contrasted LaBrec’s statement with that of
the plaintiff in Gevas, in which the plaintiff told the defendant
that his cellmate had threatened that “something crucial was
going to happen,” and concluded that LaBrec’s statements
were not nearly as specific. The court concluded that a pris‐
oner must explain the basis for the belief that he is in danger
in order to distinguish cases in which the prisoner is simply
discontented or paranoid. The court further dismissed
LaBrec’s statement that McNeely was “acting crazy,” again
noting that Labrec did not allege that he told the defendants
anything specific about what McNeely was doing. The court
further reasoned that “[w]ithout more context, a statement
8 No. 18‐1682
that the cellmate was ‘acting crazy’ could mean nothing more
than that the cellmate was engaging in irritating but harmless
behavior.” Dist. Ct. Op., LaBrec Opening Brief Appendix
(hereinafter simply “Dist. Ct. Op.”) at 9. The court concluded
that it was no more informative than other statements courts
have deemed too ambiguous.
The last evidence considered by the court was the discus‐
sions that LaBrec had with the nondefendant prison staff
members such as Dr. Persike. The court stated that LaBrec had
not cited any evidence that the information provided to Per‐
sike was communicated to the defendants, and therefore it
was irrelevant. Similarly, the court did not consider the note
found in the cell in which McNeely expressed his intention to
stab LaBrec, because it was found only after the assault oc‐
curred.
Because we review de novo, we need not address the dis‐
trict court’s opinion. Grieveson v. Anderson, 538 F.3d 763, 770
(7th Cir. 2008). But the defendants’ arguments mirror the
analysis used by the district court, and therefore we briefly
address the reasoning to highlight some of the problems pre‐
sented by the arguments not only in the district court’s opin‐
ion but in the briefs. The conclusions of the district court are
problematic in that the court considered each factor in isola‐
tion, rather than in combination with each other. As we will
discuss, the overall context is the relevant focus, and that
must include consideration of all of the factors as a whole ra‐
ther than as discrete, independent components.
In addition, the court in analyzing our prior cases, dis‐
missed evidence if it did not fit the fact pattern in those cases.
Courts analyzing the fact patterns in prior cases must be care‐
ful not to interpret those cases as a checklist of the evidence
No. 18‐1682 9
that must occur in each case. We held as much in Sinn, noting
that we are not constrained by the fact patterns of prior cases,
and the determination that threats to a specific detainee by a
specific source does not thereby equate with a requirement of
such evidence in another case. Sinn, 911 F.3d at 421. In Sinn,
we recognized that numerous cases had held that an inmate’s
articulation of a perceived threat was too vague or general‐
ized to establish the defendant’s subjective knowledge, but
“our analysis in those cases about the specificity of the in‐
mate’s complaint was but one part of the greater analysis re‐
garding the defendants’ subjective knowledge.” Id. We noted
that “[t]he reason the specificity of an inmate’s complaint mat‐
ters is because that complaint is often the only information a
prison official has of the treatment or conditions the inmate is
experiencing. Failure‐to‐protect claims are predicated on a
prison official’s subjective knowledge, though, not just the
ability of an inmate to write detailed complaints.” Sinn, 911
F.3d at 422; Horshaw v. Casper, 910 F.3d 1027, 1028‐29 (7th Cir.
2018) (noting that “prisoners do not threaten each other with
the level of detail the judge demanded”). We must consider
the context of the perceived threat as a whole, and whether
the evidence, circumstantial, documentary or otherwise, was
sufficient to indicate that the officials were aware of the sub‐
stantial risk.
That can be shown in a variety of ways, including but not
limited to an articulation of a specific threat, the obviousness
of a risk, or the realities of prison gang conduct. See e.g. Gevas,
798 F.3d at 481 (defendants informed of a specific threat in‐
cluding the identity of the individual threatening him, the na‐
ture of the threat, and the context for it); Sinn, 911 F.3d at 422
(reasonable to infer that the defendant had subjective
10 No. 18‐1682
knowledge of a threat even though the identity of the individ‐
ual attacker could not be ascertained because the defendant
was aware of the patterns of gang violence and the specific
risk Sinn faced from the Vice Lords); Horshaw, 910 F.3d at 1029
(“[p]risoners do not need ‘advance knowledge of every detail
of a future assault’ to show that they faced a serious risk;’”
communication of an anonymous warning sufficient where
gang context rendered it believable); Farmer, 511 U.S. at 842
(knowledge of a substantial risk is a question of fact “subject
to demonstration in the usual ways, including inference from
circumstantial evidence … and a factfinder may conclude that
a prison official knew of a substantial risk from the very fact
that the risk was obvious”).
The common thread in all of our cases is that the circum‐
stances as a whole must be considered. Therefore, the Owens
court’s conclusion that the single incident between the in‐
mates was insufficient to apprise the guards of a substantial
risk of harm does not indicate a single act of prior violence
can never suffice. In Owens, the incidents between Owens and
his cellmates, first Gordon and then Autin, both occurred only
after a month of the two sharing a cell without any incident,
and involved relatively minor altercations—between Owens
and Gordon involved a single punch and between Owens and
Autin involved Autin swinging at Owens but not landing a
punch. 635 F.3d at 953. One cannot conclude from Owens that
a single violent incident does not indicate an inmate is violent;
in each case, the entire context must be considered, including,
for instance, as in Owens, the entire history of the cellmates,
and the severity of the actions and likelihood of a future
threat.
No. 18‐1682 11
Here, the nature of the communications between LaBrec
and the defendants is disputed, with LaBrec and the prison
officials presenting starkly different stories. The defendants
repeatedly base their arguments on their version of the facts,
recognizing but not always crediting the plaintiff’s version.
But on summary judgment, we do not resolve such credibility
differences. Because it is the defendants who seek summary
judgment, we consider the evidence, including all reasonable
inferences, in the light most favorable to LaBrec, and in that
context the district court improperly granted judgment for the
defendants.
First, LaBrec’s alleged communications in this case do not
present the type of vague, generalized expression of danger
that has been deemed insufficient. LaBrec did not allege that
he believed that he was in danger in his cellblock generally
without any particular basis such as gang affiliation, nor did
he state that he was fearful of living with any cellmate. He
identified this particular cellmate as presenting an immediate
danger to himself and identified the basis for that belief by
explaining that it was based on McNeely’s behavior in the cell.
He explained that McNeely was unstable and was acting
crazy. That is specific enough to at least raise the specter of a
serious risk of harm. See Young v. Selk, 508 F.3d 868, 873‐74
(8th Cir. 2007) (complaints to guard that cellmate who had
just been assigned to him was deranged and threatened him
and seeking an immediate, urgent reassignment was suffi‐
cient to survive summary judgment as to the guard’s subjec‐
tive knowledge of the risk); compare Olson, 750 F.3d at 713
(inmate’s claim that his cellmate Russell was dangerous be‐
cause Russell was not taking prescribed medications and was
hearing voices was contradicted in that the guards reported
that Russell was taking the medications and Russell had no
12 No. 18‐1682
history of violence). In fact, Walker, the Unit Manager,
acknowledged that such a communication would warrant ac‐
tion, stating that if LaBrec had informed her that he felt he was
at risk of harm from his cellmate she would not have returned
him to his cell but would have moved him to another cell and
worked with unit security staff to investigate. Walker did not
recall LaBrec raising any such safety concerns, but that would
be a factual dispute not resolvable on summary judgment. Fi‐
nally, LaBrec provided even more detail in his sworn declara‐
tion filed with the court, stating that he communicated that
McNeely was “acting very unstable, he would get all worked
up, talking really fast, shaking his head back and forth, raising
his voice and cursing,” and “displaying very erratic behav‐
ior.”1 That specific description of the abnormal behavior
added credence to his claim that he faced a safety risk.
The district court was dismissive of that characterization
of McNeely’s behavior, stating that LaBrec did not provide
specifics of what McNeely was doing, and that “[w]ithout
more context, a statement that the cellmate was ‘acting crazy’
could mean nothing more than that the cellmate was engag‐
ing in irritating but harmless behavior.” Dist. Ct. Op. at 9. In
the context here, it is questionable whether it would even be
a reasonable inference that LaBrec’s complaint of crazy, er‐
ratic and unstable behavior referenced only irritating but
harmless behavior, given that LaBrec simultaneously stated
1The district court noted that LaBrec failed to include in his brief or
his proposed findings of fact the allegations as to McNeely’s behavior, but
held that the allegations would be insufficient even if the court overlooked
the failure to follow the court procedure. Given that LaBrec was proceed‐
ing pro se and that his request for counsel was denied, we agree that the
better approach is to consider the facts attested to in his Declaration.
No. 18‐1682 13
that he felt unsafe and needed to be moved from the cell. But
we need not go that far. The relevant question is whether a
reasonable jury could infer that LaBrec’s statement that
McNeely was acting crazy and erratic and that he felt unsafe
communicated that McNeely presented a threat to his safety
and apprised the defendants that McNeely presented a risk of
serious harm. LaBrec does not need to demonstrate that the
jury would be compelled to draw that conclusion, only that it
could. Gevas, 798 F.3d at 482. A reasonable jury certainly
could interpret LaBrec’s statement as to McNeely’s behavior
as communicating that McNeely presented a danger to
LaBrec.
But we need not consider whether LaBrec’s communica‐
tion of McNeely’s behavior alone is sufficient to demonstrate
that McNeely presented a danger to LaBrec – and to apprise
the defendants of that danger ‐‐ because the other surround‐
ing circumstances lend further credence to his claim that he
was in danger. Taken together, the evidence establishes that
LaBrec communicated the threat to his safety ‐‐ identifying
the behavior that led him to believe he was in danger ‐‐ and
the surrounding circumstances supplied a context that ren‐
dered the threats plausible. See Gevas, 798 F.3d at 481 (hold‐
ing that a jury could infer that defendants were subjectively
aware of the danger when Gevas identified the individual
threatening him, the nature of the threat and supplied context
that rendered the threat plausible). First, LaBrec’s cellmate,
McNeely, was in that restrictive housing unit following an in‐
cident in which McNeely assaulted his prior cellmate. See Ric‐
cardo v. Rausch, 375 F.3d 521, 527 (7th Cir. 2004) and Olson, 750
F.3d at 713 (both noting that one factor for a guard in deter‐
mining whether a threat is credible is whether the person al‐
leged to present the threat had a prior history of violence or
14 No. 18‐1682
conflicts with other inmates). Second, LaBrec’s claim that he
was in danger was not a passing reference, but a repeated and
insistent plea. He went to Psychological Services—the unit
tasked with handling cell assignments—three times in a
three‐day period to express his fears for his safety and his
need to transfer. When his request for a transfer was not
granted and he realized he was not going to be transferred out
of the cell with McNeely that night, LaBrec had an anxiety at‐
tack causing Dr. Schwenn from Psychological Services to
come to LaBrec’s cell and attend to him. Those repeated, in‐
sistent pleas for a transfer and the physical manifestation of
his anxiety lend credibility to his claim that he believed
McNeely presented a threat, and no countervailing factors ne‐
gated that scenario. And finally, LaBrec was under a “pair
with care” designation that recognized the potential for a
problem with cellmate pairings, and the required psycholog‐
ical consultation prior to assigning an inmate had never oc‐
curred, thus circumventing the process that would have
helped ensure that the cellmate placement did not present a
danger. See Brown v. Budz, 398 F.3d 904, 915 (7th Cir. 2005)
(“deliberate indifference can be predicated upon knowledge
of a victimʹs particular vulnerability … or, in the alternative,
an assailantʹs predatory nature ….”).
All of those factors considered above are the types of con‐
siderations that this court has deemed relevant in assessing
failure to protect claims by prisoners under the Eighth
Amendment. The defendants argue that LaBrec failed to pre‐
sent evidence that such contacts with Psychological Services
were unusual or that LaBrec had anxiety attacks rarely. Fur‐
ther, the defendants claim that there is no evidence in the rec‐
ord as to whether the “pair with care” designation was pro‐
vided because LaBrec was particularly vulnerable as opposed
No. 18‐1682 15
to particularly dangerous. But the defendants point to no ev‐
idence in the record, let alone undisputed evidence, that such
use of Psychological Services was routine or that the “pair
with care” designation is issued to inmates who present a par‐
ticular danger. In fact, the only evidence in the record as to
the meaning of the “pair with care” designation is that it re‐
quires a psychological consultation prior to assigning a cell‐
mate, and that no such consultation occurred here. The argu‐
ments posed by the defendants as to the inferences that
should be drawn from the evidence belong at the trial phase,
not on summary judgment where all inferences must be taken
in favor of the non‐moving party. LaBrec does not need to ne‐
gate all contrary interpretations of the evidence. Defendants
are free to argue that placed in a different context, those visits
were not unusual enough to apprise the defendants that he
was in real fear of McNeely. On the record before us now,
however, the evidence set forth by LaBrec would be sufficient
to allow a jury to infer that those circumstances evidence a
real threat of harm, and that the defendants witnessing
LaBrec’s complaints and the surrounding circumstances
would be aware of that risk of harm. The factual inferences
must be considered in combination, not in isolation from each
other. Our cases are clear that the focus is on the circum‐
stances as a whole in determining whether there is a factual
dispute as to subjective knowledge.
But that does not end our inquiry, because we must con‐
sider each defendant individually and determine whether the
facts allegedly known to that defendant are sufficient. There
is evidence in the record that all defendants were aware of the
pair with care designation which was not followed, LaBrec’s
complaints that he was not safe in his cell with McNeely, and
his resort to Psychological Services. At least three defendants,
16 No. 18‐1682
Walker, Craft, and Wilson, were aware of McNeely’s assault
on his prior cellmate, and Craft and Wilson were informed
that LaBrec described McNeely as acting crazy and exhibiting
erratic behavior. At least two defendants, Chatman and
Meeker, were aware of LaBrec’s anxiety attack when not
transferred. Finally, LaBrec attested that at least two defend‐
ants, Craft and Wilson, determined that he should be trans‐
ferred, but then failed to complete that transfer, and Walker
also stated that if LaBrec had complained that he felt unsafe
as he asserts in this case, Walker would have moved him to
another cell while the claim was investigated.
As to two defendants, Chatman and Meeker, the court
properly granted summary judgment. The evidence taken in
the light most favorable to LaBrec shows only that Chatman
and Meeker were aware that LaBrec claimed he did not feel
safe with McNeely, that he was designated a pair‐with‐care,
that he visited with Psychological Services and that he had an
anxiety attack. Those defendants therefore were unaware of
some of the other surrounding circumstances that could ren‐
der plausible LaBrec’s claim of a threat to his safety, such as
the description of McNeely’s behavior or the fact that he was
moved to restrictive housing after an assault involving his
prior cellmate. That is insufficient to allow an inference that a
substantial risk of serious harm existed and that they in fact
recognized that risk.
As to the remaining three defendants, that context that
would render the claim of a risk of harm more plausible is
present. The case as to Walker is close, but sufficient to survive
summary judgment. The record demonstrates that Walker
was aware that LaBrec claimed he did not feel safe with
McNeely, that he was designated a pair‐with‐care, and that he
No. 18‐1682 17
visited with Psychological Services seeking a transfer. In con‐
trast to Chatman and Meeker, Walker also was aware that
McNeely was transferred to restrictive housing following an
assault involving his prior cellmate. Therefore, LaBrec’s claim
of feeling unsafe was rendered plausible not only by the con‐
sistency and intensity of his requests to Psychological Ser‐
vices, but also by the awareness that McNeely had recently
been involved in an assault incident with his prior cellmate.
In fact, Walker does not argue that he did not find the com‐
plaint of a risk of harm plausible. To the contrary, he argues
that if LaBrec had indeed communicated that complaint to
him, he would have removed LaBrec from that cell and inves‐
tigated the matter. In light of the pair with care designation
that already should have alerted the defendants to the need
for scrutiny of potential cellmates prior to assignment, those
facts are sufficient to meet the standard.
That is true as well for the final defendants, Craft and Wil‐
son. The evidence in the record, if believed, could demon‐
strate that they were aware that LaBrec complained that he
was not safe in a cell with McNeely, that he engaged with Psy‐
chological Services to address that problem and seek a trans‐
fer, that he was designated a pair‐with‐care, and that
McNeely was in restrictive housing following an assault in‐
volving McNeely’s prior cellmate; evidence in the record also
indicates that they were informed of the substance of LaBrec’s
conversation with Dr. Persike which included LaBrec’s claim
that McNeely was acting crazy and displaying very erratic be‐
havior. As previously discussed, in light of all of that evi‐
dence, a jury could reasonably infer that the defendants pos‐
sessed a subjective awareness of a serious risk to LaBrec, and
failed to take the minimal, reasonable action of inquiring fur‐
ther and investigating the situation. See Sinn, 911 F.3d at 422
18 No. 18‐1682
(such subjective knowledge necessitates that the prison offi‐
cial take reasonable responsive actions); Farmer, 511 U.S. at
844 (“prison officials who actually knew of a substantial risk
to inmate health or safety may be found free from liability if
they reasonably responded to the risk, even if the harm ulti‐
mately was not averted”). Had they investigated LaBrec’s
claim that McNeely posed the threat, they might have ob‐
served the troubling behavior of which LaBrec complained,
or have found the Interview Request form in the cell, filled
out by McNeely, in which McNeely stated that he planned on
stabbing LaBrec. Based on the facts and circumstances taken
in the light most favorable to LaBrec, summary judgment is
not appropriate.
The remaining issue raised by LaBrec on appeal concerns
the district court’s denial of his request for counsel. We review
a district court’s determination whether to grant or deny
counsel only for abuse of discretion. Olson, 750 F.3d at 711. In
Olson, we noted that two questions are relevant to such a re‐
quest for counsel: whether the plaintiff made a reasonable at‐
tempt to obtain counsel or was effectively precluded from do‐
ing so, and whether the plaintiff is competent to litigate the
case himself, considering the complexity of the case and the
plaintiff’s capabilities. Id.
LaBrec argued that he was not capable of handling the
case himself because he has mental health issues, he has lim‐
ited access to the library because he is housed in disciplinary
separation status, and he has been unable to take depositions.
As to his mental health issues, he stated in the motion for ap‐
pointment of counsel that he suffered from a number of men‐
tal illnesses but that the one that is most detrimental to his
No. 18‐1682 19
ability to pursue his case is Attention Deficit Disorder. He fur‐
ther argued to the district court that a lawyer would be help‐
ful for settlement discussions and at trial.
The district court considered those arguments and en‐
gaged in the proper analysis in denying counsel. First, the
court held that LaBrec had shown that multiple lawyers de‐
clined to represent him. As to the second part of the analysis,
the court held that plaintiff was capable of effectively repre‐
senting himself. As an initial matter, the court noted that
LaBrec had cited no evidence as to any mental health impair‐
ment, but assumed for the purpose of its decision that such
impairments exist. The court held, however, that LaBrec’s
summary judgment motion showed no signs of any impair‐
ment. The court noted that “LaBrec’s summary judgment sub‐
missions show that he is intelligent, understands law and pro‐
cedure, and is capable of conducting discovery, explaining his
version of events in a declaration, and making legal argu‐
ments in a brief.” Dist. Ct. Op. at 12. In fact, the court con‐
cluded that LaBrec’s summary judgment filings “were clear
and thorough, showing skill and knowledge well above that
of the average pro se litigant.” Id. The court further held that
LaBrec’s housing status did not adversely impact him because
additional legal research would not have aided him. Finally,
the court held that LaBrec failed to identify why depositions
would be necessary given his personal knowledge of most of
the relevant facts and in light of his use of written discovery
and his failure to identify any questions he was unable to ask
in that discovery.
The court therefore properly considered LaBrec’s request,
but determined that he was capable of handling the case him‐
self in light of his abilities and the complexity of the case. We
20 No. 18‐1682
noted in Olson, 750 F.3d at 711, that “[d]istrict courts are …
placed in the unenviable position of identifying, among a sea
of people lacking counsel, those who need counsel the most,”
and that determination rests in the district court’s discretion.
“[O]ur job is to ensure that the district court applied the
proper legal standards without abusing that discretion.” Id.
That standard is met here. The district court recognized the
appropriate legal standards and applied them to LaBrec’s re‐
quest. There is no basis to conclude that the court abused its
discretion in that determination.
Accordingly, the decision of the district court denying the
request for counsel is AFFIRMED. The decision granting sum‐
mary judgment is AFFIRMED as to Defendants‐Appellees Ja‐
son Chatman and Dustin Meeker and is REVERSED as to the
remaining Defendants‐Appellees, Joshua Craft, Debra Wil‐
son, and Lindsay Walker, and the case is REMANDED for fur‐
ther proceedings.