David Gevas v. Christopher McLaughlin

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1057
DAVID C. GEVAS,
Plaintiff-Appellant,
v.
CHRISTOPHER MCLAUGHLIN, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:08-cv-01379-JBM-JAG — Joe Billy McDade, Judge.
ARGUED JUNE 4, 2015* — DECIDED AUGUST 20, 2015
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. While David Gevas was imprisoned
at the Henry Hill Correctional Center in Galesburg, Illinois, his
*
This appeal was initially submitted for decision on the briefs and the
record. See Fed. R. App. P. 34(a)(2). Upon consideration of the appeal,
however, the panel concluded that it would benefit from re-briefing and
oral argument. Counsel was appointed to represent Gevas (who initially
had briefed the appeal pro se) for these purposes.
2 No. 13-1057
cellmate stabbed him in the neck with a pen. Gevas filed a pro
se complaint against three prison officials, alleging inter alia
that they violated the Eighth Amendment’s proscription
against cruel and unusual punishment by failing to protect him
from the attack. See U.S. CONST. amend. VIII, cl. 3; 42 U.S.C.
§ 1983.1 That claim proceeded to a jury trial, at which Gevas
was represented by appointed counsel. At the conclusion of
Gevas’s case in chief, however, the district court granted
judgment as a matter of law to the officials on the ground that
no reasonable jury could conclude that they were subjectively
aware that Gevas was in danger. See Fed. R. Civ. P. 50(a). We
reverse. Were a jury to credit Gevas’s testimony that he alerted
each of the defendants to his cellmate’s threats to stab him, it
could find that the defendants were aware of the danger posed
to Gevas. The district court therefore erred in granting judg-
ment as a matter of law to the defendants on that ground. We
conclude further that neither of the alternative arguments
advanced by the defendant officials would sustain the entry of
judgment as a matter of law. The case will be returned to the
district court for a second trial.
I.
The case that Gevas presented in support of his Eighth
Amendment claim consisted entirely of his own testimony. As
judgment was entered against Gevas pursuant to Rule 50(a),
we are obliged to assume the truth of his testimony and
otherwise construe the record in the light most favorable to
1
Certain other claims and defendants were disposed of prior to trial. Only
the Eighth Amendment claim is at issue in this appeal.
No. 13-1057 3
him. E.g., Acevedo v. Canterbury, 457 F.3d 721, 722 (7th Cir.
2006).
Gevas, who is serving a life sentence, was transferred to
Hill from the Stateville Correctional Center on January 2, 2008.
Upon completion of an orientation period, Gevas was assigned
to a succession of different cells and cellmates in the general
population of the prison. See R. 194 at 7.
Gevas testified that, in the months before the pen-stabbing
incident, he had repeatedly complained to prison officials
about certain cellmates that he believed posed a danger to him;
and in March and April 2008, he filed grievances demanding
that he not be celled with gang members. He was assigned to
a new cell, with William Adkins, on May 17, 2008; but Adkins’
mercurial and hostile temperament had Gevas ?walking on egg
shells.” R. 231 at 11. Gevas testified that Adkins ?wanted me
out of his cell” and threatened on a daily basis to stab him,
saying that Gevas was ?not too big to bleed” and ?not too big
to be beaten up.” R. 231 at 10-11. (We are told that Gevas has
a stout physique.) According to Gevas, Adkins identified
himself as a gang member and accused Gevas of snitching on
a previous cellmate, John Taylor, who was also a gang mem-
ber. Gevas testified that Adkins’s behavior caused him to feel
?very tormented, in fear for [his] life.” R. 231 at 14.
Gevas discussed the situation with three prison staff
members. First he spoke with Wayne Steele, his prison coun-
selor, on May 22, five days after Adkins had become his
cellmate. Gevas told Steele that Adkins was threatening to stab
him. He asked Steele to put the two of them on a ?keep-
separate” list and, in Gevas’s words, ?begged for [Steele] to
4 No. 13-1057
move me.” R. 231 at 15. Gevas also handed Steele a letter (and
sent an identical follow-up letter through the prison mail on
May 26) saying that Adkins had accused him of snitching on
his previous cellmate and ?constantly talks about his gang and
stabbing me and wants me out of his cell.” Plaintiff’s Group Ex.
12. Second, the day after meeting with Steele, Gevas briefly
saw Steve Wright, the acting warden of operations, as Wright
was conducting one of his frequent walk-through inspections
of the kitchen where Gevas was working as a cook. As there
were other inmates present in the kitchen and Gevas had work
to do, he spoke to Wright discretely. Gevas told Wright ?as fast
as [he] could” that Adkins had threatened Gevas (including
Adkins’s remark that he was ?not too big to bleed”) and
expressed concern that he not be stabbed. R. 231 at 33. Third,
Gevas met with Christopher McLaughlin, an internal affairs
officer, who visited Gevas’s cell two days later, on May 25.
Gevas had a 10- to 15-minute discussion with McLaughlin in
which he again described Adkins’s threats and he asked to be
placed in protective custody. McLaughlin advised Gevas that
because Hill is a medium-security prison, no protective
custody was available. Three days prior to and one day after
this meeting, Gevas also sent to McLaughlin (through the
prison mail) the same letters that he sent to Steele. Plaintiff’s
Group Ex. 14. (Re-typed copies of these letters were admitted
into evidence.) Gevas testified that none of the three officials
responded to the concerns he had raised about Adkins.
McLaughlin had told Gevas that he would summon Gevas to
the internal affairs office for a follow-up discussion, but that
did not occur either.
No. 13-1057 5
On cross-examination, defense counsel elicited details about
a conversation that Gevas had with McLaughlin in late March
regarding a prior cellmate, Taylor.2 Gevas acknowledged that
McLaughlin informed him on that occasion that he could
?refuse housing” if he believed he was in jeopardy from his
cellmate. We gather that an inmate refuses housing by declar-
ing to a prison official that he will not comply with his cell
assignment—in other words, that he will refuse to return to his
designated cell. Gevas understood that if he did refuse hous-
ing, he would receive a disciplinary ticket for disobeying an
order, be moved immediately to the prison’s segregation unit
(and thus separated from Adkins), and remain there for a
period of 30 days (longer for subsequent offenses) while prison
officials investigated his refusal. ?That’s punishment,” Gevas
opined. R. 231 at 50. ?I’m being punished for being threatened
on top of it.” R. 231 at 50. Gevas acknowledged that, when an
inmate receives a disciplinary ticket, ?ultimately you get the
chance to go to the adjustment committee, which is a group of
staff that decide whether or not you had a good reason for
refusing housing … .” R. 231 at 51. But in his experience, the
odds of convincing the adjustment committee to exonerate him
of the disciplinary violation were not good. Gevas conceded
that he rejected ?the option of refusing housing and being
separated from Mr. Adkins,” and instead ?chose to stay in the
cell with” him. R. 231 at 53-54. On re-direct, Gevas explained
2
Neither the context nor the timing of this conversation was established
by the questioning of Gevas at trial. However, the record otherwise makes
clear that this conversation took place on or about March 30, 2008, when
McLaughlin spoke with Gevas regarding a grievance he had submitted over
a prior cell assignment. See R. 176 at 10, 176-1 at 22; R. 187 at 3 ¶ 9.
6 No. 13-1057
that he did not want to go to segregation because he believed
that he would lose his job in the prison kitchen (which, per his
earlier testimony, would mean that he would spend 23 hours
per day in his cell rather than 16 to 18 hours) and would have
to speak with his terminally-ill mother through a glass barrier
when she visited the prison.
On May 29, four days after Gevas spoke with McLaughlin,
Adkins stabbed Gevas four times in the neck with a pen as
Gevas was tying his shoes and preparing to exit their cell for
dinner. Adkins then commenced throwing items in the cell at
Gevas, until a guard arrived and took Adkins into custody.
Gevas was escorted to the prison’s health care unit, where a
nurse cleaned the puncture wounds and gave him a tetanus
shot. The wounds healed within two weeks, although Gevas
testified that he experienced continuing anxiety as a result of
the assault. Gevas testified that he also suffered an injury to his
shoulder in the incident which caused him ongoing pain.
After Gevas rested his case, the defendant officials moved
for judgment as a matter of law. They argued that they had
responded reasonably to the reported threats by providing
Gevas the opportunity to refuse housing and thereby avoid
Adkins. In the alternative, they asked for qualified immunity
because ?there is no case law that says they have to give
[Gevas] the way out of that cell that he wants; they [just] have
to provide some way for him to get away from an inmate that
is a danger. They provided that.” R. 231 at 60-61. Gevas’s
lawyer replied that refusing housing was not a reasonable
option, because Gevas ?would lose his job and all visitation
with his family members” in segregation. R. 231 at 61.
No. 13-1057 7
The district court granted judgment as a matter of law to
the officials, see Rule 50(a), but not for the reasons they had
argued. The court concluded that Gevas had not put forward
sufficient evidence showing that the officials were subjectively
aware of a serious risk of harm to him, see Farmer v. Brennan,
511 U.S. 825, 837-38, 114 S. Ct. 1970, 1979 (1994), and so could
not prove that the officials violated the Eighth Amendment.
R. 231 at 65-66. The court declined to additionally rest its
decision on the officials’ argument that their response to the
danger—advising Gevas that he could refuse housing—was
reasonable. The court pointed out that according to Gevas’s
testimony, refusing housing would expose him to punishment;
and the court was not prepared to say that Gevas was required
to do that in order to separate himself from Adkins. R. 231 at
67. Gevas’s subsequent request for a new trial was denied.
II.
Gevas argues on appeal that he presented enough evidence
to permit a reasonable jury to find that the officials actually
knew that he was in danger, and that the district court erred in
finding otherwise when it granted judgment as a matter of law
to the defendants. Gevas further contends that the alternate
grounds on which the officials defend the judgment are not
meritorious. The option of refusing housing was not a reason-
able response to the threat that Adkins posed, Gevas reasons,
because it required him to commit a disciplinary infraction and
expose himself to punishment in order to separate himself
from a cellmate whose threats he had reported to the officials.
Nor are the defendants entitled to qualified immunity, he
argues, because no prison official could have reasonably
believed that requiring a prisoner to commit a disciplinary
8 No. 13-1057
infraction was an adequate response to the threat posed by his
cellmate.
A prison official is liable for failing to protect an inmate
from another prisoner only if the official ?knows of and
disregards an excessive risk to inmate health or safety[.]”
Farmer, 511 U.S. at 837, 114 S. Ct. at 1979. A claim that a prison
official was deliberately indifferent to such a risk has both an
objective and a subjective component. Id. at 834, 114 S. Ct. at
1977. First, the harm to which the prisoner was exposed must
be an objectively serious one. Ibid. There is no dispute that the
threat of which Gevas was complaining (being stabbed by his
cellmate) meets this criterion. See, e.g., Brown v. Budz, 398 F.3d
904, 910 (7th Cir. 2005) (?a beating suffered at the hands of a
follow detainee … clearly constitutes serious harm”). The
parties’ dispute instead focuses on the subjective prong of the
deliberate indifference claim, which requires that the official
must have actual, and not merely constructive, knowledge of
the risk in order to be held liable; specifically, he ?must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
that inference.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1979.
Although this inquiry focuses on an official’s subjective
knowledge, a prisoner need not present direct evidence of the
official’s state of mind: ?Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference
from circumstantial evidence … .” Id. at 842, 114 S. Ct. at 1981.
?In failure to protect cases, <[a] prisoner normally proves
actual knowledge of impending harm by showing that he
No. 13-1057 9
complained to prison officials about a specific threat to his
safety.’” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (per
curiam) (quoting McGill v. Duckworth, 944 F.2d 344, 349 (7th
Cir. 1991), overruled on other grounds by Farmer); see also
Gidarisingh v. Pollard, 571 F. App’x 467, 470 (7th Cir. 2014) (non-
precedential decision); James v. Milwaukee County, 956 F.2d 696,
700 (7th Cir. 1992); Santiago v. Walls, 599 F.3d 749, 769 (7th Cir.
2010) (Sykes, J., dissenting) (?Each defendant's state of mind is
inferred primarily from the circumstances surrounding the
assaults in question and the grievances Santiago filed alerting
prison officials to his complaints about [his assailants].”); cf.
Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1999) (knowledge
that plaintiff was being deprived of food and medication
established by prisoner’s letters). Complaints that convey only
a generalized, vague, or stale concern about one’s safety
typically will not support an inference that a prison official had
actual knowledge that the prisoner was in danger. See, e.g., Dale
v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (?[The prisoner’s]
vague statement that inmates were 540 F.3d 633, 639-40 (7th Cir. 2008) (beyond expressing
fear for his life, prisoner’s statements to guards did not identify
who was threatening him or what the threats were); Grieveson
v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (prisoner did not
mention to guards that he was perceived to be a ?snitch” or
otherwise apprise them of a specific threat to his life); Butera v.
Cottey, 285 F.3d 601, 606 (7th Cir. 2002) (prisoner only stated
vaguely that he was ?having problems” in his cellblock and
?needed to be removed”). Nor will complaints that are contra-
10 No. 13-1057
dicted by the prisoner himself suffice to establish knowledge.
See, e.g., Riccardo v. Rausch, 375 F.3d 521, 527 (7th Cir. 2004)
(prisoner initially expressed mortal fear of harm at hands of
cellmate, but subsequently indicated to guard he had no
concern). By contrast, a complaint that identifies a specific,
credible, and imminent risk of serious harm and identifies the
prospective assailant typically will support an inference that
the official to whom the complaint was communicated had
actual knowledge of the risk. See, e.g., Haley v. Gross, 86 F.3d
630, 643 (7th Cir. 1996) (prisoner advised sergeant, inter alia,
that cellmate was intimidating him, acting strangely, had
threatened that ?something crucial was going to happen” if one
of them was not moved, and was now ?deadlocked” in cell,
which restricted ingress to and egress from cell).
Gevas has adduced sufficient evidence that defendants
McLaughlin and Steele knew he was in danger of being
harmed by Adkins. He testified that he informed McLaughlin
and Steele in person that Adkins had threatened to stab him.
He also introduced into evidence re-typed copies of notes he
had handed or mailed to the officials; the notes stated that
Adkins had accused him of snitching on his prior cellmate and
?constantly talks about his gang and stabbing me.” Plaintiff’s
Group Exs. 12, 14. See Vance v. Peters, 97 F.3d 987, 993 (7th Cir.
1996) (letters to prison administrators may support inference
of knowledge, so long as prisoner ?demonstrat[es] that the
communication, in its content and manner of transmission,
gave the prison official sufficient notice to alert him or her to
Farmer,
511 U.S. at 837, 114 S. Ct. at 1979). In reviewing the district
court’s Rule 50(a) judgment, we must credit Gevas’s testimony
No. 13-1057 11
as true; and by his account, he related to both McLaughlin and
Steele a specific, repeated, imminent, and plausible threat to his
safety: Gevas identified the individual threatening him
(Adkins), the nature of the threat (that Adkins would stab
him), and supplied context that rendered the threats plausible
(including Adkins’s remark that Gevas had ?snitched” on a
prior cellmate). Cf. Dale, 548 F.3d at 570 (although defendant
officers ?all implored [plaintiff] for details” of threat to his
safety, he provided none). Given what was communicated to
these defendants, a jury reasonably could infer that they not
only had notice of facts from which they could infer that Gevas
faced a serious risk of substantial harm from Adkins, but that
they actually drew this inference, and were thus subjectively
aware of the danger he faced. See Haley v. Gross, 86 F.3d at 642-
43.
A jury could draw the same inference as to Wright. By
Gevas’s own telling, his interaction with Wright in the prison
kitchen was quite brief; and Gevas did not follow up by
sending a letter to Wright as he did with McLaughlin and
Steele. Nonetheless, accepting Gevas’s description of the
encounter as accurate, Gevas did manage to apprise Wright
that his cellmate was threatening to stab him. This was
sufficient to communicate the essential nature of the threat to
Wright and to support the inference that Wright, like
McLaughlin and Steele, had actual knowledge of the threat
that Gevas faced.
It is true that the defendants were not required to believe
that Gevas was in danger. See Riccardo, 375 F.3d at 525
(?[g]uards … must discriminate between serious risks of harm
and feigned or imagined ones”). For any number of reasons,
12 No. 13-1057
including information acquired in the course of any investiga-
tion into Gevas’s complaints, the defendants might have
concluded either that Gevas was not credible or that Adkins
did not present a genuine threat to his safety. In other words,
Gevas’s testimony, even accepted as the truth, does not compel
the finding that any of the defendants did draw the inference
that Gevas faced a substantial risk of serious harm. But for
purposes of Rule 50(a), the question is not whether the finder
of fact was compelled to determine or would have determined
that the defendants were actually aware of the danger, but
whether it could have made that finding. For the reasons we
have already articulated, Gevas’s testimony would permit a
jury to find that the defendants knew Adkins posed a substan-
tial risk to his safety.
Gevas is not otherwise required to prospectively negate the
defense case in order to survive a Rule 50(a) motion, as the
district court seemed to think. See R. 231 at 65-66. What, if any,
investigation the defendants did into the threats that Gevas
reported, and what they may have subjectively concluded as
to the credibility and gravity of the threats as a result of such
investigation, are matters that are within their knowledge and
will no doubt be presented in the defense case. Gevas is not
required to anticipate and refute that showing before it is
made. He need only present evidence from which their
knowledge may be inferred, and he has presented such
evidence. In any case, a determination of what the defendants
actually knew will almost certainly turn on an assessment of
each party’s credibility, for rarely is there direct, let alone
irrefutable, evidence of an individual’s subjective mental state.
See Farmer, 511 U.S. at 842, 114 S. Ct. at 1981; see also Miller v. Ill.
No. 13-1057 13
Dep’t of Transp., 643 F.3d 190, 196-97 (7th Cir. 2011); United
States v. Ramirez, 574 F.3d 869, 877-81 (7th Cir. 2009); United
States v. Carrillo, 269 F.3d 761, 769-70 (7th Cir. 2001); Knorr Brake
Corp. v. Harbil, Inc., 738 F.2d 223, 227-28 (7th Cir. 1984).
All that the record includes at this stage of the litigation is
what Gevas says he communicated to the defendants, and that
account, which stands unrebutted and unimpeached, would
support the requisite finding that the defendants were both on
notice of the danger that Adkins posed to Gevas, and that they
drew the inference that Gevas was at risk of being injured. The
district court therefore erred in finding that Gevas had not
produced sufficient evidence to support a judgment in his
favor.
This leaves us with the defendants’ first alternative
contention—that even if they were aware of the danger that
Adkins posed to Gevas, no reasonable jury could find that they
recklessly disregarded that risk, because they had made
available to Gevas a means of separating himself from Adkins.
Some seven weeks earlier, when Gevas had filed a grievance
expressing concern about a prior cellmate, McLaughlin had
advised Gevas that he could always refuse his cell assignment
and thereby trigger his transfer into disciplinary segregation
for a period of thirty days. See n.2, supra. Gevas ultimately
would have the opportunity to explain his refusal to an
adjustment committee which in turn could, in the exercise of its
discretion, deem his refusal justified. Gevas conceded, on cross-
examination, that he was aware of this option; and in the
defendants’ view, the fact that there was a process by which
Gevas could effectuate his own transfer out of his cell and that
Gevas knew he had this option is enough to establish that they
14 No. 13-1057
had offered Gevas a reasonable form of protection from the
threat posed by Adkins, if not the one he preferred. See, e.g.,
Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007) (so long as
officer responded reasonably to the risk, he cannot be said to
have been deliberately indifferent, even if his response did not
prevent harm from occurring) (quoting Peate v. McCann,
294 F.3d 879, 882 (7th Cir. 2002)).
One problem with this reasoning is its presumption that
Gevas understood that it was up to him to exercise this option
with respect to Adkins in particular. Our understanding is that
when McLaughlin had mentioned the possibility of refusing
housing, it was in the context of informing Gevas that his
grievance regarding Taylor was being denied. Gevas thus
understood that refusing housing was available as a last resort
if prison officials were unwilling to help him. But, so far as the
record reveals, the defendants had not yet communicated such
a message to Gevas with respect to Adkins. Gevas had re-
ported the threats Adkins had made, and as far as Gevas knew,
the defendants were looking into them; certainly he had not
been told that the defendants did not regard Adkins’s threats
(or his report of those threats) as credible and/or that they did
not plan to intervene. Certainly Gevas understood that it was
possible for him to refuse housing: he acknowledged that he
was aware of this option and that he chose not to pursue it and
instead remain in his assigned cell with Adkins. R. 231 at 53-54.
But it is not clear that Gevas understood that he should take
matters out of the defendants’ hands and into his own by
exercising this option before he knew whether the defendants
would take his complaints about Adkins seriously.
No. 13-1057 15
A second and more important problem with the defen-
dants’ reasoning, on the current record, is that it places a
burden on Gevas to commit a disciplinary infraction in pursuit
of his own safety. Gevas understood that if he refused housing,
he would be issued a disciplinary ticket, placed into the
prison’s disciplinary segregation unit, and later given the
opportunity to explain himself to the adjustment committee,
with no guarantee that the committee would find his refusal of
housing justified. In the meantime, because he had committed
a disciplinary infraction (and would be confined to disciplinary
segregation while the infraction was investigated), Gevas
believed he would lose his job in the prison kitchen and his
visitation rights would be limited in the sense that he would
only be able to interact with visitors through glass. And there
would be no assurance that the adjustment committee ulti-
mately would absolve him of the rules violation; if it did not,
he could be subject to punishment including the loss of good-
time credits. (By contrast, if officials instead had responded to
Gevas’s complaints by placing Adkins in administrative
detention as a precautionary measure while they looked into
his reported threats upon Gevas, it would have been consid-
ered a non-disciplinary placement. See 20 Ill. Admin. Code
§ 504.660(b)(2).) Gevas’s understanding of the refusal-of-
housing process and its consequences may or may not be
accurate; but on this record, it stands unrebutted, as the district
court recognized.3
3
Gevas’s understanding of the consequences of refusing housing is at least
plausible. Some of our own cases suggest that the refusal of housing is
treated as a disciplinary infraction. See, e.g., Smith v. Birkey, 447 F. App’x
(continued...)
16 No. 13-1057
Certainly a prisoner may be expected to behave reasonably
with respect to the dangers that prison life invariably presents.
But a prisoner is not obligated to commit a disciplinary
infraction in pursuit of his own safety. Prisons are, by their
very nature, disciplinary, liberty-restricting environments in
which ?safety and order are paramount concerns.” Volkman v.
Ryker, 736 F.3d 1084, 1092 (7th Cir. 2013); see also Bell v. Wolfish,
441 U.S. 520, 546, 99 S. Ct. 1861, 1878 (1979) (recognizing that
?maintaining institutional security and preserving internal
order and discipline are essential goals” in the prison setting).
Prisoners are expected to follow orders and rules, not disobey
them. It was the prison that placed Adkins and Gevas in a cell
together; and once the defendants were made aware that
Adkins was threatening Gevas, it was their obligation as prison
officials to assess the reported danger and to take reasonable
steps to address it if they found it to be a real one. The defen-
dants may not attempt to transfer that obligation to Gevas by
insisting that he go so far as to engage in insubordination in
order to take himself out of danger. See Young v. Selk, 508 F.3d
868, 874 (8th Cir. 2007).4
3
(...continued)
744, 745 (7th Cir. 2011) (non-precedential decision); Walsh v. Mellas, 837 F.2d
789, 792 (7th Cir. 1988); Walsh v. Brewer, 733 F.2d 473, 474 (7th Cir. 1984);
Redding v. Fairman, 717 F.2d 1105, 1115-16 (7th Cir. 1983).
4
The scenario Gevas has described must be contrasted with one in which
prison officials respond to a threat by transferring an endangered inmate
into administrative segregation for his own protection. The latter is a
common safety measure, see Borello v. Allison, 446 F.3d 742, 749 n.2 (7th Cir.
2006) (citing Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002)), and, although
(continued...)
No. 13-1057 17
For the same reasons, we reject, on the limited record before
us, the defendants’ followup contention that they are entitled
to qualified immunity, a contention premised on the notion
that it was reasonable for them to believe that Gevas’s ability
to refuse housing was a sufficient response to the danger even
if, as we have concluded, it was not. As we have been saying,
it is defendants who have the duty to protect a prisoner once
they become aware he is in danger of assault by another
prisoner, and this is a now well-settled aspect of Eighth
Amendment jurisprudence. See Farmer, 511 U.S. at 832-34,
114 S. Ct. at 1976-77 (collecting cases). Imprisonment, after all,
?strip[s] [prisoners] of virtually every means of self-protection
and foreclose[s] their access to outside aid[.]” Id. at 833,
114 S. Ct. at 1977. Prisoners lack even a right to invoke self-
defense in disciplinary proceedings when they have resorted
to violence as a means of protecting themselves. Rowe v.
DeBruyn, 17 F.3d 1047 (7th Cir. 1994); see also Arce v. Indiana
Parole Bd., 596 F. App’x 501, 503 (7th Cir. 2015) (non-preceden-
tial decision); Jones v. Cross, 637 F.3d 841, 847-48 (7th Cir. 2011);
Scruggs v. Jordan, 485 F.3d 934, 938-39 (7th Cir. 2007). On the
4
(...continued)
it may come with some additional restrictions on an inmate’s liberty within
the prison, see Sandin v. Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995), is not
considered to be a disciplinary placement. In this case, however, the
placement was, by Gevas’s account, presumptively disciplinary, exposing
him to the possibility of punishment that might include the loss of good-
time credits, for example. See Hahn v. Murphy, No. CV 07-1153-SVW(MAN),
2011 WL 9378180, at *20 n.12 (C.D. Cal. Sep. 23, 2011) (magistrate judge’s
report and recommendation), adopted, 2012 WL 5456385 (C.D. Cal. Nov. 1,
2012) (distinguishing Young v. Selk, supra, on this basis).
18 No. 13-1057
record before us, construed in the light most favorable to the
plaintiff, the defendants were aware that Gevas was in danger
of being harmed by Adkins, who was threatening to stab him,
and yet did nothing to address that danger other than having
previously made him aware that he had the option to refuse
housing, be ticketed in response, and have himself transferred
into disciplinary segregation. Expecting a prisoner to defy an
order in pursuit of his own safety runs counter to the essential
nature of incarceration as well as to cases emphasizing the
need for order and discipline in the prison environment, see
Wolfish, 441 U.S. at 547, 99 S. Ct. at 1878 (courts must grant
?wide-ranging deference” to prison administrators vis-à-vis
?policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institu-
tional security”); Burton v. Ruzicki, 258 F. App’x 882, 885 (7th
Cir. 2007) (non-precedential decision) (?discipline in a correc-
tional institution is 744 F.2d 1260, 1267 (7th Cir. 1984)), and
cases sustaining the imposition of discipline for a prisoner’s
refusal to comply with orders, including orders refusing
housing assignments, see Forbes v. Trigg, 976 F.2d 308, 313-14
(7th Cir. 1992) (refusal to comply with oral order for urine test);
Redding v. Fairman, supra n.3, 717 F.2d at 1115-16 (refusal of
housing assignment based on race of cellmate); Smith v. Roal,
494 F. App’x 663, 664-65 (7th Cir. 2012) (non-precedential
decision) (disobeying order to submit to handcuffing). A prison
official could not logically believe, in view of the duty imposed
on him by the Eighth Amendment, Farmer, and other deliberate
indifference cases, that requiring a prisoner to violate a prison
directive (including his cell assignment) is a reasonable
No. 13-1057 19
response to a substantial risk of the prisoner’s cellmate
attacking him. And the defendants may not now find refuge in
the doctrine of qualified immunity simply because no case had
previously rejected the specific defense that they have cre-
atively fashioned, when the logic (or illogic) of that defense is
so at odds with the respective duties that existing case law
imposed on prisoner and prison official. See Surita v. Hyde,
665 F.3d 860, 868 (7th Cir. 2011) (plaintiff is not invariably
required to point to case with similar facts in order to demon-
strate that right at issue was clearly established for purposes of
qualified immunity; ?the violation may be so obvious in light
of law existing at the time that a reasonable person would have
known that his or her conduct was unconstitutional”) (citing
Brokaw v. Mercer Cnty., 235 F.3d 1000, 1023 (7th Cir. 2000)).
Certainly the defendants can find no support in Riccardo in
this regard. The dissent in Riccardo took note of a prison policy
that would honor a prisoner’s request to be transferred out of
his cell if he alleged a fear for his personal safety but that
would also treat the request as a potential disciplinary violation:
if a followup inquiry revealed that the prisoner had refused
housing for no reason, the prisoner would at that time be
issued a disciplinary ticket. 375 F.3d at 532 & n.5. The dissent
cited that procedure simply to make the point that the prison
had a means of dealing with prisoners who were manipulative
or prone to ?cry wolf” without cause. Id. at 532. In any case,
Riccardo involved a different Illinois correctional facility
(Centralia), and the transfer policy described in that case is
markedly different from Hill’s policy (as described by Gevas).
Gevas’s testimony suggests that Hill treats a refusal of housing
as a presumptive disciplinary violation rather than a potential
20 No. 13-1057
one. The fact that he would be issued a ticket upon such a
refusal attests to that. And the mere mention of the policy in
Riccardo by a dissenter surely could not have given the defen-
dants cause to believe that they might reasonably rely on a
prisoner to resort to a forbidden form of self-help in order to
remove himself from a dangerous situation and thereby subject
himself to the prison disciplinary process.
We are, of course, dealing with a one-sided record, and
further development of the facts may demonstrate that
refusing housing was a more reasonable option than Gevas’s
testimony has made it out to be. For that reason, we decline
Gevas’s invitation to declare unreasonable as a matter of law
giving an inmate who expresses concern for his safety the
option of refusing housing and to direct the district court to so
instruct the jury. Our more modest holding is tied to the
limited facts presented by this record, construed favorably to
Gevas.
A final word about certain discovery that was denied to
Gevas in this case. Among other information, Gevas asked for
prison records related to Adkins’s institutional conduct,
disciplinary history, and criminal history. The defendants
objected to the request, principally on the ground that disclo-
sure might jeopardize institutional security and expose Adkins
to attack by other inmates. R. 27 at 19 ¶ 5; see also R. 34 at 3-4
¶ 4. The district court sustained the objection and denied
Gevas’s motion to compel. Although the district court has
broad discretion in resolving discovery objections, we believe
that the court abused its discretion in denying Gevas’s request
in toto. Gevas was pro se at the time he sought this discovery,
and he offered only boilerplate as justification in support of his
No. 13-1057 21
motion to compel. R. 27 at 3 ¶ 4. But Adkins’s criminal record
and institutional history is obviously relevant to the extent it
documents his history of violence (or lack thereof). Presum-
ably, that history would have been one of the very sources of
information that a prison official would have consulted in
investigating whether Adkins indeed posed a threat to Gevas;
the history therefore potentially sheds light on the defendants’
knowledge of any danger that Adkins posed to Gevas. Deny-
ing Gevas access to that information thus hinders his ability to
establish any deliberate indifference on the part of the defen-
dants. It may be that there are aspects of Adkins’s records that
are irrelevant to Gevas’s claim or which might jeopardize
institutional security or Adkins’s own safety if the information
fell into the hands of the wrong people. We agree with Gevas,
however, that those concerns may be addressed by (1) the
court’s in camera review of the pertinent records to determine
whether they reveal information relevant to Gevas’s claim and
should therefore be produced to Gevas and his counsel; and (2)
the entry of an appropriate protective order to address any
security concerns implicated by disclosure of any relevant
portions of Adkins’s disciplinary records—including one
restricting the disclosure of certain information to Gevas’s
counsel alone, if the court deemed such a restriction necessary.
The district court must revisit this discovery request on
remand.
There are two other categories of documents as to which
Gevas was denied discovery: documents concerning the
defendants’ disciplinary history and the existence of cells
occupied by only one inmate in the wing in which Gevas was
housed at the time of the attack. The defendants contend that
22 No. 13-1057
we lack jurisdiction to entertain Gevas’s arguments as to these
documents, because his notice of appeal specifically identified
the order denying his motion to compel as an object of appeal
only insofar as it concerned documents related to Adkins’s
disciplinary history. R. 247; see Chaka v. Lane, 894 F.2d 923, 925
(7th Cir. 1990). But Gevas is entitled to a liberal construction of
the notice, see JP Morgan Chase Bank, N.A. v. Asia Pulp & Paper
Co., 707 F.3d 853, 861-62 (7th Cir. 2013), particularly given that
he prepared it without the assistance of counsel, see Smith v.
Grams, 565 F.3d 1037, 1041-42 (7th Cir. 2009). These additional
two categories of documents were dealt with in the same order
that resolved Gevas’s request for documents concerning
Adkins’ criminal history. Moreover, the notice of appeal also
cited the final judgment that the district court entered against
him pursuant to Rule 50(a), and the appeal of a final judgment
is sufficient to bring before us all of the interlocutory orders
leading up to that judgment. See Librizzi v. Childrens Mem. Med.
Ctr., 134 F.3d 1302, 1305-06 (7th Cir. 1998); see also, e.g., Brown
v. Health Care Serv. Corp., 606 F. App’x 831, 834 n.2 (7th Cir.
2015) (non-precedential decision) (appeal of final judgment is
sufficient to bring up for review prior discovery orders). We
are satisfied that we have jurisdiction to consider these other
categories of documents. And we agree with Gevas that he was
entitled to documents regarding prison cells that were occu-
pied by only one other inmate at the time of the attack and the
days leading up to it. The existence of such cells would have a
bearing on the options available to the defendants to respond
to the threat posed by Adkins: Gevas could, in theory, have
been transferred to one of those cells. As for the defendants’
disciplinary history, Gevas suggests that documents along this
No. 13-1057 23
line would be relevant to show that the defendants were prone
to ignoring legitimate complaints. That sounds very much like
a propensity argument of the sort prohibited by Federal Rule
of Evidence 404(b), however. Cf. Jones v. Hamelman, 869 F.2d
1023, 1027 (7th Cir. 1989) (sustaining exclusion of testimony
offered to establish a pattern of ?callous indifference” toward
protection of inmates by correctional officer). Gevas has not
convinced us that the district court abused its discretion in
declining to order the production of those documents.
III.
For all of the reasons we have discussed, the district abused
its discretion in granting the defendants’ motion for entry of
judgment as a matter of law in their favor. The judgment is
REVERSED, and the case is REMANDED for re-trial. Prior to
re-trial, the court should revisit the subject of discovery
consistent with the observations we have made. We thank
Gevas’s appointed counsel, Kenneth J. Vanko, for his vigorous
and effective advocacy on Gevas’s behalf.