John Balsewicz v. Jonathan Pawlyk

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3062
JOHN H. BALSEWICZ, a/k/a Melissa Balsewicz, *
Plaintiff-Appellant,
v.
JONATHAN S. PAWLYK, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:18-cv-97 — J.P. Stadtmueller, Judge.
____________________
ARGUED MAY 28, 2020 — DECIDED JUNE 26, 2020
AMENDED JULY 2, 2020
____________________
Before WOOD, Chief Judge, and MANION and KANNE,
Circuit Judges.
* Balsewicz, who has been diagnosed with Gender Dysphoria and is
taking cross-gender hormones, is recognized by the Wisconsin
Department of Corrections as a transgender inmate.
2 No. 19-3062
KANNE, Circuit Judge. When a prison official knows that an
inmate faces a substantial risk of serious harm, the Eighth
Amendment requires that official to take reasonable measures
to abate the risk.
Inmate John “Melissa” Balsewicz reported to a prison
guard that while she was in the shower house, another inmate
threatened to beat her up. 1 The guard, Sergeant Jonathan
Pawlyk, took no action in response to Balsewicz’s report; and
two days later, the inmate who had threatened Balsewicz
punched her in the head repeatedly, causing her to fall
unconscious.
Balsewicz filed a claim against Sergeant Pawlyk and other
prison officials under the Civil Rights Act of 1871, Rev. Stat.
§ 1979, as amended, 42 U.S.C. § 1983. She alleged that
Sergeant Pawlyk failed to take reasonable measures to abate
a known, substantial risk of serious harm to her, and thus
violated one of her Eighth Amendment rights. Granting
summary judgment to Sergeant Pawlyk, the district court
reasoned that the threat Balsewicz reported to the guard
could only be understood as expiring once the inmates left the
shower house, so no factfinder could conclude that Sergeant
Pawlyk knew Balsewicz faced an ongoing risk of serious
harm.
Because a reasonable juror could conclude otherwise
based on the submitted evidence, and because Sergeant
Pawlyk is not entitled to qualified immunity, we reverse.
1 Reference to Balsewicz as “Melissa” and by feminine pronouns is
consistent with the district court’s order and the parties’ briefing in this
case.
No. 19-3062 3
I. BACKGROUND 2
The events underlying this lawsuit occurred at Waupun
Correctional Institution in Wisconsin. Wisconsin Department
of Corrections policy requires that transgender prisoners
taking cross-gender hormones, like Balsewicz, must shower
separately from inmates who are not transgender or intersex.
See Wis. Dep’t of Corrs., Div. of Adult Insts. Policy No.
500.70.27. In March 2017, Balsewicz began complaining that
inmates who were not transgender or intersex were being
allowed to shower with those who are, including her.
Balsewicz eventually identified Denzel Rivers as one of those
inmates, believing Rivers falsely claimed to be transgender to
receive housing in a single cell.
On May 5, 2017, Rivers and Balsewicz were in a shower
house with other inmates. Rivers told Balsewicz to stay out of
the shower stall between two transgender inmates, and
Balsewicz asked him why. Rivers responded, “Don’t worry
about it, punk ass h[o]nky! I’ll beat the fuck out of you!”
Another inmate asked Rivers, “Why you threaten her like
that?” to which Rivers returned, “Mind your business before
you get [the] same treatment.”
Balsewicz finished showering and went straight to
Sergeant Pawlyk, the regular supervising sergeant in the
North Cell Hall, where prisoners with Gender Dysphoria are
housed. Balsewicz told Pawlyk “everything which had
2 Because this case comes to us on appeal from the district court’s
grant of summary judgment, our description reflects our view of the facts
in the light most favorable to the nonmoving party—Balsewicz—with all
reasonable inferences drawn in her favor. Daugherty v. Page, 906 F.3d 606,
609 (7th Cir. 2018).
4 No. 19-3062
transpired” in the shower house and complained that Rivers
should not be showering with her and the other transgender
inmates because he wasn’t really transgender or intersex. She
repeatedly asked Sergeant Pawlyk to report her concerns for
her personal safety following Rivers’s threat. Nearby inmates
witnessed this interaction, and one recalled that Balsewicz
“appeared agitated and fearful” and was talking in a
“pleadingly assertive manner.” Later that day, Balsewicz
asked another prison official to remind Sergeant Pawlyk to
report her “personal safety concerns of inmate River[s]’s
threat, with a supervisor.” Sergeant Pawlyk ultimately took
no action on Balsewicz’s complaint.
Two days later, when Rivers and Balsewicz were leaving
a dining hall with other inmates, Rivers “without any type of
provocation or warning” punched Balsewicz multiple times
in the head. Balsewicz collapsed, lost consciousness, and
experienced dizziness and numbness in her face.
After exhausting her administrative remedies, Balsewicz
filed a complaint against Sergeant Pawlyk and other prison
officials. The claim at issue here is one against Sergeant
Pawlyk, under 42 U.S.C. § 1983, that he failed to protect
Balsewicz from a known and substantial risk of serious harm
from Rivers. The district court granted summary judgment to
Sergeant Pawlyk. The court reasoned that Balsewicz had not
produced enough evidence for a jury to conclude that the
guard knew Rivers’s threat was ongoing after the inmates
finished showering. Balsewicz appealed, and Sergeant
Pawlyk reasserted that he is entitled to qualified immunity.
No. 19-3062 5
II. ANALYSIS
We review both the district court’s grant of summary
judgment and Sergeant Pawlyk’s assertion of qualified
immunity de novo. Orlowski v. Milwaukee County, 872 F.3d 417,
421 (7th Cir. 2017). We first address whether a jury could
decide that Sergeant Pawlyk knew Balsewicz faced a
substantial risk of serious harm from Rivers after she left the
shower house. We then turn to whether Sergeant Pawlyk is
entitled to qualified immunity.
A. Genuine Issue of Material Fact
Summary judgment for Sergeant Pawlyk is appropriate if
he, as the movant, has shown that no genuine dispute as to
any material fact exists and he is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). Conversely—setting aside
the guard’s assertion of a qualified-immunity defense, which
we address later—summary judgment is inappropriate if the
submitted evidence would allow a reasonable jury to return a
verdict for Balsewicz. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Because Balsewicz bears the burden of proof
at trial, a jury would not be able to return a verdict for her if
she has “fail[ed] to make a showing sufficient to establish the
existence of an element essential to [her] case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Sergeant Pawlyk contends
that this is precisely why summary judgment is appropriate:
Balsewicz failed to support an element essential to her case—
namely, Sergeant Pawlyk’s knowledge that Balsewicz faced
an excessive risk to her safety after she left the showers.
The guard’s knowledge is indeed an essential part of
Balsewicz’s case, and it is the only contested element of her
§ 1983 claim. Her claim is that Sergeant Pawlyk, under color
6 No. 19-3062
of state law, subjected Balsewicz to a deprivation of her
Eighth Amendment right not to be inflicted with cruel and
unusual punishment. See 42 U.S.C. § 1983. That right is
enforceable against the state of Wisconsin through the
Fourteenth Amendment. See Robinson v. California, 370 U.S.
660, 664–66 (1962).
The Eighth Amendment’s “cruel and unusual
punishments” clause requires prison officials to “take
reasonable measures to guarantee the safety of the inmates.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v.
Palmer, 468 U.S. 517, 526–27 (1984)); see U.S. Const. amend.
VIII. This means that a constitutional violation inheres in a
prison official’s “deliberate indifference” to a substantial risk
of serious harm to an inmate. Farmer, 511 U.S. at 828. A
“deliberate indifference” violation has two components, one
objective and one subjective.
The objective component is that the prisoner must have
been exposed to a harm that was objectively serious. Farmer,
511 U.S. at 834. No one contests that this criterion was met
here. Indeed, Rivers’s violent beating of Balsewicz in the head
is the kind of in-prison assault that “is simply not ‘part of the
penalty that criminal offenders pay for their offenses against
society.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)); see, e.g., Brown v. Budz, 398 F.3d 904, 910–11 (7th Cir.
2005).
The subjective component is that the prison official must
have known of and disregarded an excessive risk to the
inmate’s health or safety. Farmer, 511 U.S. at 837–38; LaBrec v.
Walker, 948 F.3d 836, 841 (7th Cir. 2020). Specifically, the
official must have been “aware of facts from which the
inference could be drawn that a substantial risk of serious
No. 19-3062 7
harm exists,” and he must have “draw[n] th[at] inference.”
Farmer, 511 U.S. at 837.
Finally, an official is not liable if he takes reasonable
measures to abate the known risk. Id. at 844. It is undisputed
that Sergeant Pawlyk took no action in response to
Balsewicz’s complaint. And Sergeant Pawlyk does not argue
that his inaction would have been reasonable had he known
Balsewicz continued to face a substantial risk of serious harm
from Rivers after Balsewicz left the showers.
So, the only contested part of Balsewicz’s claim is the
subjective component: Sergeant Pawlyk’s knowledge of a
substantial risk of serious harm to Balsewicz.
A prison official’s subjective knowledge can be shown “in
the usual ways” that facts are demonstrated, “including
inference from circumstantial evidence.” Id. at 842. For
example, if an inmate provides evidence that the risk of
serious harm was obvious, a factfinder could reasonably infer
that the official knew of the risk. Id. Likewise, a factfinder
could typically infer an official’s knowledge from evidence
that the inmate complained to the official about a specific
threat to her safety—so long as the complaint “identifies a
specific, credible, and imminent risk of serious harm and
identifies the prospective assailant,” as opposed to a
complaint that “convey[s] only a generalized, vague, or stale
concern about one’s safety.” Gevas v. McLaughlin, 798 F.3d 475,
480–81 (7th Cir. 2015).
Sergeant Pawlyk maintains that Balsewicz failed to
adduce enough evidence that he knew Balsewicz faced an
ongoing risk of serious harm from Rivers. He says a factfinder
would have to conclude that he, the guard, understood
8 No. 19-3062
Balsewicz’s complaint as communicating only a stale concern
for her safety, not an imminent risk of harm. In his view, the
problem with Balsewicz’s case is not that Rivers’s threat in the
showers amounted to less than a substantial risk of serious
harm; it’s that the threat could only be understood as having
expired before Balsewicz told the guard about it.
We disagree. A reasonable juror could conclude, based on
the submitted evidence, that Sergeant Pawlyk knew the threat
from Rivers was ongoing. To start, Rivers used the imperative
mood and future tense to deliver the threat: “Don’t worry
about it, punk ass h[o]nky! I’ll beat the fuck out of you!” And
he gave no assurance that the threat would wash away by the
time the inmates finished their showers. Even if the threat
were understood as conditional—that is, that Rivers would
beat up Balsewicz only if she “worr[ied] about” Rivers’s
demand not to shower between two of the inmates—
Balsewicz signaled to Sergeant Pawlyk that she indeed
“worr[ied] about it,” by complaining to him about the
incident.
Sergeant Pawlyk points out that Balsewicz has given two
different accounts of what Rivers said, the other version
being, “Don’t worry about it, punk ass h[o]nky, don’t make
me beat the fuck out of you!” This version, he argues,
indicates that Balsewicz needed to do something more in the
shower to trigger the threat’s execution. But we view the facts
in the light most favorable to Balsewicz. See Plumhoff v.
Rickard, 572 U.S. 765, 768 (2014); Daugherty v. Page, 906 F.3d
606, 609 (7th Cir. 2018). And even in this overtly conditional
form, the threat could be understood as ongoing so long as
Balsewicz worried about why Rivers didn’t want Balsewicz to
No. 19-3062 9
shower in a certain stall; and Balsewicz’s complaint to
Sergeant Pawlyk suggests she was so worried.
Next, by Balsewicz’s and other inmates’ accounts included
in the record,3 when Balsewicz complained to Sergeant
Pawlyk about Rivers’s threat, she “appeared agitated and
fearful” and was talking in a “pleadingly assertive matter.”
She did not say that the danger was now over. And she urged
Sergeant Pawlyk not to allow Rivers to shower with her and
the other transgender inmates, signaling that Rivers’s threat
created a future—not a foregone—risk to Balsewicz’s safety.
Adding to her request that Rivers not be allowed to
shower with her in the future, Balsewicz repeated her concern
to another guard during the same shift, asking that guard to
remind Sergeant Pawlyk to report the threat to a supervisor.
Taken altogether, then, the evidence would allow a
reasonable juror to infer, from circumstantial evidence, both
that Sergeant Pawlyk was “aware of facts” indicating the
danger of serious harm to Balsewicz was not yet over and that
Sergeant Pawlyk drew such an inference. Farmer, 511 U.S. at
837. This is not to say that a jury would have to find Sergeant
Pawlyk knew the excessive danger was ongoing. But the
evidence does not compel the opposite finding, either. For this
reason, a genuine issue of material fact exists on an element
of Balsewicz’s deliberate-indifference claim.
Notwithstanding the existence of a genuine issue of
material fact, Sergeant Pawlyk advances another basis on
3 For purposes of summary judgment, Balsewicz’s verified complaint
functions as an affidavit. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017).
10 No. 19-3062
which summary judgment may be granted: qualified
immunity. We turn to that issue now.
B. Qualified Immunity
Under the doctrine of qualified immunity, government
officials are liable for civil damages—and subjected to suit in
the first place—only when their conduct violated “clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Whether an official is entitled to qualified
immunity on a motion for summary judgment turns on
whether the plaintiff has both (1) alleged that the official
committed acts violating a clearly established right and (2)
adduced “evidence sufficient to create a genuine issue as to
whether the [official] in fact committed those acts.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985); see Orlowski, 872 F.3d at 422–
23.
We’ve already determined that Balsewicz demonstrated a
genuine issue as to whether Sergeant Pawlyk—who did
nothing in response to the reported threat—in fact knew that
Balsewicz faced an imminent risk of serious harm. 4 This
leaves the question whether the conduct Balsewicz alleged
(and sufficiently supported with evidence) violated a clearly
established right. We conclude that it did.
When evaluating a qualified-immunity defense, the focus
“is on whether the officer had fair notice that [his] conduct
4Our view of the facts in the light most favorable to the nonmovant
(Balsewicz) applies to our evaluation of whether Sergeant Pawlyk is
entitled to qualified immunity. See, e.g., Plumhoff, 572 U.S. at 768; Orlowski,
872 F.3d at 421.
No. 19-3062 11
was unlawful.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). If
any reasonable officer in Sergeant Pawlyk’s shoes—after
discovering that Balsewicz faced a substantial danger of being
beaten up by Rivers—would have understood that taking no
action to address that danger violated Balsewicz’s right, then
the right was clearly established. See Plumhoff, 572 U.S. at 778–
79. Put another way, if applying the law at that time to the
facts “would have left objectively reasonable officials in a state
of uncertainty,” then immunity is appropriate. Horshaw v.
Casper, 910 F.3d 1027, 1030 (7th Cir. 2018).
It is true that, here, factual uncertainty remains about
whether Sergeant Pawlyk knew Balsewicz faced an imminent,
rather than a lapsed, danger of serious harm. But that is not
the kind of uncertainty that matters. The reason is that we
approach the qualified-immunity inquiry by treating as true
the evidence-supported facts and inferences favoring
Balsewicz. See, e.g., id.; Orlowski, 872 F.3d at 421–22. The
appropriate question, then, is this: Assuming Sergeant
Pawlyk was informed that Balsewicz faced an ongoing threat
from Rivers, did Sergeant Pawlyk’s inaction violate one of
Balsewicz’s clearly established rights?
The answer is yes. Farmer v. Brennan made clear that being
violently assaulted by a fellow inmate in prison is a serious
harm. See Farmer, 511 U.S. at 834; Brown, 398 F.3d at 910–11.
And Farmer also made clear what a prison official must do
when he learns that an inmate faces an excessive danger of
such a harm: take reasonable measures to abate the danger.
See Farmer, 511 U.S. at 832–33, 844–45; see also Horshaw, 910
F.3d at 1030 (“Farmer clearly establishes the governing
rules.”); Velez v. Johnson, 395 F.3d 732, 736 (7th Cir. 2005)
(observing that “[t]here can be no debate” that the right “to be
12 No. 19-3062
free from deliberate indifference to rape and assault” was
clearly established by September 1999).
Cases since Farmer have confirmed that inmates have a
right to have officers take reasonable measures to abate a
known risk of violent assault by a fellow inmate.
For example, in Velez v. Johnson, a pretrial detainee 5
pushed an emergency call button and specifically told a guard
that he was having a conflict with his cellmate; the guard did
nothing in response; and the cellmate assaulted and raped the
complainant. 395 F.3d at 734–36. We recognized that if the
guard appreciated the danger the cellmate posed, the guard’s
inaction violated the detainee’s right to be reasonably
protected from violent assault by another inmate—which was
a clearly established right at the time. Id. at 736.
Similarly, in Gevas v. McLaughlin, an inmate informed
prison officials that his cellmate had threatened to stab him;
the officials took no protective action other than having
previously informed the inmate that he could refuse housing
and reap the disciplinary consequences; and the cellmate
5When Velez was decided, we recognized that, although a pretrial
detainee’s deliberate-indifference claim derives from the Fourteenth
Amendment’s due-process clause rather than the Eighth Amendment,
there is “little practical difference between the two standards”; the Eighth
Amendment test applied when analyzing a § 1983 claim brought under
the Fourteenth Amendment. Velez, 395 F.3d at 735 (quoting Weiss v. Cooley,
230 F.3d 1027, 1032 (7th Cir. 2000)); see Brown, 398 F.3d at 910 (quoting
Henderson v. Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999)). Contra
Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (concluding that
conditions-of-confinement claims brought by pretrial detainees under the
Fourteenth Amendment are subject only to the objective
unreasonableness inquiry identified in Kingsley v. Hendrickson, 135 S. Ct.
2466 (2015)); Miranda v. County of Lake, 900 F.3d 335, 351–52 (7th Cir. 2018).
No. 19-3062 13
stabbed the concerned inmate. 798 F.3d at 485. We held that,
if the officials appreciated that the inmate was in danger of
being stabbed by his cellmate, their inaction violated the
inmate’s right to be protected from the assault, and “[a] prison
official could not logically believe” otherwise. Id.
Accordingly, at the time Sergeant Pawlyk was informed
that Rivers presented an ongoing excessive danger to
Balsewicz, a competent officer in Sergeant Pawlyk’s shoes
would have known that taking no protective action in
response—no additional investigation, no reporting to a
supervisor, no measures to keep Rivers away from Balsewicz,
etc.—violated Balsewicz’s right to be reasonably protected
from a violent beating by another inmate. Given the clear
governing rules set out by Farmer, and given their application
in cases confirming that inaction in like circumstances violates
an inmate’s constitutional right, Sergeant Pawlyk is not
entitled to qualified immunity.
III. CONCLUSION
Balsewicz presented enough evidence for a reasonable
jury to conclude that Sergeant Pawlyk knew Balsewicz faced
an ongoing, substantial risk of serious harm at the hands of
another inmate. She therefore demonstrated a genuine issue
of material fact appropriate for trial. And Sergeant Pawlyk’s
conduct—as alleged and supported by Balsewicz—violated a
clearly established right. So, Sergeant Pawlyk is not entitled
to qualified immunity. We thus REVERSE the district court’s
grant of summary judgment and REMAND for proceedings
consistent with this opinion.