Robert Wilk v. Dwight Neven

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT WILK, No. 17-17355
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-01429-
JCM-CWH
DWIGHT NEVEN, Warden; CARY
LEAVITT; J. NASH,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 15, 2019
San Francisco, California
Filed April 23, 2020
Before: Kim McLane Wardlaw, William A. Fletcher,
and Richard Linn,* Circuit Judges.
Opinion by Judge W. Fletcher
*
The Honorable Richard Linn, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
2 WILK V. NEVEN
SUMMARY**
Civil Rights
The panel reversed the district court’s summary judgment
in favor of prison officials in an action brought pursuant to
42 U.S.C. § 1983 alleging that defendants violated plaintiff’s
right to be free from cruel and unusual punishment when they
failed to protect him from an attack by another inmate.
Plaintiff alleged that the prison warden, an associate
warden and a caseworker participated in a full classification
meeting to discuss plaintiff’s housing assignment after
plaintiff reported that an inmate had threatened to attack and
kill him. Plaintiff alleged that after the meeting, despite
knowing about the risk to plaintiff, defendants failed to
respond reasonably to protect plaintiff.
The panel held that taking plaintiff’s evidence as true and
viewing it in the light most favorable to him, defendants
violated plaintiff’s Eighth Amendment right to be protected
from serious harm while incarcerated. The panel held that a
reasonable fact-finder would be able to conclude that
defendants were subjectively aware of the substantial risk of
serious harm to plaintiff, and failed to respond reasonably.
The panel held that any reasonable prison official in the
defendants’ position would know that the actions defendants
took, and failed to take, violated the Eighth Amendment.
None of the defendants could claim ignorance to a prisoner’s
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WILK V. NEVEN 3
right to be protected from violence at the hands of other
inmates. That right has been clearly established since the
Supreme Court’s decision in Farmer v. Brennan, 511 U.S.
825, 833 (1994).
The panel held that throughout proceedings in the district
court, while he was still incarcerated, plaintiff struggled to
obtain discovery from defendants, who resisted turning over
crucial documents such as his institutional file and their
records of housing classification meetings. On remand, the
panel instructed that plaintiff should have another opportunity
to seek the materials he requested previously, which had the
potential to identify or exclude the defendants. To assist with
this process, the panel encouraged the district court to appoint
counsel.
COUNSEL
Matthew V.H. Noller (argued), King & Spalding LLP,
Sacramento, California, for Plaintiff-Appellant.
Frank A. Toddre II (argued), Senior Deputy Attorney
General; D. Randall Gilmer, Chief Deputy Attorney General;
Aaron D. Ford, Attorney General; Office of the Attorney
General, Las Vegas, Nevada; for Defendants-Appellees.
4 WILK V. NEVEN
OPINION
W. FLETCHER, Circuit Judge:
On February 11, 2014, Robert Wilk was brutally assaulted
by another inmate in a Nevada state prison. Alleging
violations of his Eighth Amendment right to be free from
cruel and unusual punishment, Wilk brought suit against
defendants Dwight Neven, the prison warden; Jennifer Nash,
an associate warden; and Cary Leavitt, a caseworker. The
district court granted summary judgment to defendants. We
reverse.
I. Factual and Procedural Background
Because this case is before us on a grant of summary
judgment, we view the evidence in the light most favorable
to Wilk, the non-moving party. See, e.g., Estate of Lopez ex
rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017).
At all times relevant to this suit, Units 7 and 8 at
Nevada’s High Desert State Prison (“HDSP”) were protective
units, where inmates were housed for their own safety. The
units were located directly across from one another and
shared a common yard. Inmates in Unit 7 were on a different
schedule from inmates in Unit 8, limiting opportunities for
contact between the two groups. However, opportunities for
contact existed, for example, when inmates from the two
units waited in the yard to go to classes or traveled through
the yard on their way to medical appointments.
In October 2013, both Robert Wilk and Ysaquirle Nunley
were housed in Unit 7. On or about October 20, Nunley
threatened to attack and kill Wilk.
WILK V. NEVEN 5
Wilk immediately reported the threat to his unit floor
officer and was moved from Unit 7 to administrative
segregation for his protection. Several days later, on October
29, Wilk participated in a full classification committee
meeting to discuss his housing assignment. According to
Wilk, defendants Leavitt, Nash, and Neven all attended the
classification meeting, either in person or through a
representative. Leavitt admits that he was at the meeting.
Nash and Neven contend that they were not at the meeting.
At the classification meeting, Wilk filled out
documentation outlining his need for protection and
requesting that Nunley be placed on his administrative
“enemy list,” which would warn prison staff that Nunley
posed a threat to him. Under normal prison procedures, such
documentation would be submitted for review by the warden
or his designee.
On October 30, Wilk was moved to Unit 8. He agreed to
the move only because he believed Nunley had been removed
from Unit 7 and had been placed on his enemy list. In fact,
Nunley had been returned to Unit 7 and had not been put on
Wilk’s enemy list. During another classification meeting in
November, defendants incorrectly told Wilk that Nunley “was
still in [disciplinary segregation].”
On February 11, 2014, Nunley attacked Wilk in the yard
between Units 7 and 8. The district court wrote, “Nunley
allegedly exited his cell without authorization and attacked
Wilk with stones, gravel, and his fists.” “Wilk suffered
extreme physical, emotional, and mental pain,” including a
broken nose and damaged eyes. According to Wilk, Nunley
had been “released . . . from his cell for a medical
appointment.” In their brief, defendants concede that
6 WILK V. NEVEN
“Nunley broke [away] from his unit” while being transferred
by correctional officers. On the day of the incident, but after
the attack, defendant Nash updated Wilk’s enemy list to
include Nunley.
Wilk alleges that Leavitt, Nash, and Neven each violated
his Eighth Amendment right by failing to protect him from
Nunley. Specifically, Wilk contends that defendants knew
from the classification meeting about the risk Nunley posed
to Wilk and failed to respond reasonably when they placed
Wilk and Nunley back in Units 7 and 8, misled Wilk by
telling him Nunley was still in administrative segregation,
and failed to update Wilk’s enemy list.
Defendant Leavitt concedes that he attended the
classification meeting, was involved in the decision to move
Wilk back to Unit 8, and knew that Nunley, housed in Unit 7,
could potentially have some interaction with the individuals
housed in Unit 8. However, Leavitt argues that he cannot be
liable because he took reasonable action to protect Wilk and,
after Wilk was moved to Unit 8, did not perceive an excessive
or intolerable risk of serious injury to Wilk. Leavitt does
admit that he might have made “a clerical mistake regarding
assigning Nunley to the enemy list,” but claims it was not his
job to update the prison’s records system.
Defendants Nash and Neven contend they did not attend
the October 29 classification meeting and were not aware of
the threat Nunley posed to Wilk. However, they
acknowledge that individuals housed in Unit 7 could
potentially have contact with individuals housed in Unit 8.
Wilk exhausted his administrative remedies and filed suit
in state court under 42 U.S.C. § 1983. Defendants removed
WILK V. NEVEN 7
the action to federal court. Throughout the proceedings in
state and federal court, Wilk was pro se. The district court
acknowledged its obligation to construe liberally Wilk’s pro
se filings. Wilk’s complaint failed initial screening, but the
district court allowed an amended complaint to go forward.
The district court granted defendants’ motion for
summary judgment. The court held that defendants were
entitled to qualified immunity because Wilk’s evidence, even
if true, did not establish an Eighth Amendment violation. The
court concluded that there was no violation by defendants
Neven and Nash because they had no subjective knowledge
of the risk Nunley posed to Wilk. The court concluded,
further, that there was no violation by Leavitt because Wilk
had not shown “Leavitt was aware of an excessive or
intolerable risk to Wilk’s health or safety,” and because
Leavitt responded reasonably to any risk he did perceive.
Wilk timely appealed.
II. Standard of Review
We review de novo a district court’s grant of summary
judgment. Grenning v. Miller-Stout, 739 F.3d 1235, 1238
(9th Cir. 2014). “Summary judgment is appropriate when,
with the evidence viewed in the light most favorable to the
non-moving party, there are no genuine issues of material
fact, so that the moving party is entitled to judgment as a
matter of law.” Id. (internal quotation marks omitted).
“[C]ourts should construe liberally motion papers and
pleadings filed by pro se inmates and should avoid applying
summary judgment rules strictly.” Thomas v. Ponder,
611 F.3d 1144, 1150 (9th Cir. 2010).
8 WILK V. NEVEN
III. Discussion
The Eighth Amendment requires prison officials to
protect inmates from violence. Farmer v. Brennan, 511 U.S.
825, 833 (1994). “It is not, however, every injury suffered by
one prisoner at the hands of another that translates into
constitutional liability for prison officials responsible for the
victim’s safety.” Id. at 834. Specifically, a prison official
violates an inmate’s Eighth Amendment right only if that
official is “deliberately indifferent”—in other words, if the
official is subjectively aware of a substantial risk of serious
harm to an inmate and disregards that risk by failing to
respond reasonably. Id. at 837, 844–45. A fact-finder may
infer subjective awareness from circumstantial evidence. Id.
at 842.
We have applied Farmer on several occasions. In Lemire
v. California Department of Corrections and Rehabilitation,
726 F.3d 1062, 1068 (9th Cir. 2013), relatives of a prisoner
brought suit under the Eighth Amendment after the prisoner
committed suicide. According to the plaintiffs’ evidence, the
decedent was able to commit suicide only because prison
officials left the decedent’s unit, a specialized housing unit
for individuals on psychotropic medications, completely
unsupervised for three-and-a-half hours. Id. at 1070–71.
Under prison policy, prison officials were required to conduct
regular security inspections designed to prevent inmate
suicide, and such inspections could have prevented the
decedent’s death. Id. at 1070. We held that if the plaintiffs’
evidence was true, defendants violated the Eighth
Amendment. Id. at 1085–86.
In Clem v. Lomeli, 566 F.3d 1177, 1180 (9th Cir. 2009),
the plaintiff’s cellmate became drunk and threatened him.
WILK V. NEVEN 9
The plaintiff immediately informed a prison official, who did
nothing. Id. The cellmate then attacked the plaintiff. Id.
The jury found for the defendant, but we reversed based on
erroneous jury instructions: “There was evidence showing
that [the officer] heard Clem’s call for help immediately prior
to his beating, and that the officer took no steps to abate any
risk to Clem. Clem was therefore entitled to a ‘failure to act’
instruction, and the district court erred in rejecting it.” Id. at
1182 (noting that Eighth Amendment violations can occur
when a prison official acts but also when a prison official
fails to act). We held that doing nothing in response to
Clem’s pleas for help would have been unreasonable,
amounting to “deliberate indifference.” Id.
In Cortez v. Skol, 776 F.3d 1046, 1049 (9th Cir. 2015), a
prison official attempted to transport three high-security
inmates through a back-alley passage in the prison called “no
man’s land” that was impossible to see on security cameras.
Prior to the escort, the official knew that there was hostility
among the three men and that, due to his protective custody
status, one of them, Cortez, was potentially in danger. Id.
The official nonetheless escorted the three men, who were not
wearing leg irons, by himself. Id. The other two men
attacked Cortez, “kick[ing] and stomp[ing] on the back of his
head.” Id. During the attack, the officer was unable to stop
the men with verbal commands or pepper spray. Id. “Cortez
suffered a brain injury that caused severe, permanent mental
impairment.” Id. We reversed the district court’s grant of
summary judgment to the defendant, holding that the officer
showed “deliberate indifference” by transporting the three
men without backup when he knew physical violence was
possible. Id. at 1053.
10 WILK V. NEVEN
In addition to considering whether a constitutional
violation is alleged, we ask whether the applicable law was
“clearly established” at the time of the incident. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). Officials are subject to
suit only for actions that they knew or should have known
violated the law. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Law is “clearly established” for the purposes of qualified
immunity if “every reasonable official would have
understood that what he is doing violates th[e] right” at issue.
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam)
(quotation marks omitted). “[O]fficials can still be on notice
that their conduct violates established law even in novel
factual circumstances”—i.e., even without a prior case that
had “fundamentally similar” or “materially similar” facts.
Hope, 536 U.S. at 741.
We have recently addressed clearly established Eighth
Amendment law with respect to failure-to-protect claims.
“The Supreme Court need not catalogue every way in which
one inmate can harm another for us to conclude that a
reasonable official would understand that his actions violated
[the Eighth Amendment].” Castro v. County of Los Angeles,
833 F.3d 1060, 1067 (9th Cir. 2016) (applying Eighth
Amendment standards to a pretrial detainee’s case because,
under City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244
(1983), pretrial detainees are entitled to at least as much
protection as post-conviction inmates). Once an official is
subjectively aware of a substantial risk of serious harm,
“clearly established” law requires “only that the [official]
take reasonable measures to mitigate the substantial risk.” Id.
We first evaluate whether defendants were aware that
there was a substantial risk of serious harm to Wilk.
Nunley’s threat to Wilk meant that there was substantial risk
WILK V. NEVEN 11
that he would attack Wilk and cause him serious harm. See
Cortez, 776 F.3d at 1049–51; Clem, 566 F.3d at 1182.
Defendant Leavitt admits that he was present at the initial
classification meeting, which specifically focused on the
threat posed by Nunley. Leavitt contends, however, that after
Nunley was returned to Unit 7 and Wilk to Unit 8, Leavitt
was correct in perceiving that Nunley no longer posed a
substantial risk of serious harm. Leavitt’s contention is
inconsistent with Wilk’s evidence. Wilk’s relocation to Unit
8, which Leavitt concedes allowed contact with Unit 7,
occurred shortly after Nunley’s threat. At that time, nothing
about Wilk’s circumstances had changed. There was no
reason to believe that Nunley no longer wished to attack
Wilk, and Leavitt knew that Units 7 and 8 shared the same
yard. A reasonable juror could find that Leavitt was
subjectively aware of the substantial risk of serious harm to
Wilk.
Defendant Nash does not admit that she attended the
initial classification meeting, but because this case is before
us on summary judgment, we take as true the facts as stated
by Wilk. According to Wilk, Nash was present at the
meeting, either in person or through a representative. The
sole purpose of that meeting was for Wilk to report Nunley’s
threat and to express his fear of Nunley. Viewing the facts in
the light most favorable to Wilk, a reasonable jury could
conclude that Nash was either present at the meeting or
received a report from the meeting, and that she was therefore
subjectively aware of the risk Nunley posed to Wilk.
Defendant Neven also disputes that he attended Wilk’s
classification meeting. However, according to Wilk, Neven
was present at the meeting, either in person or through a
representative. Again, because the sole purpose of that
12 WILK V. NEVEN
meeting was for Wilk to express his fear and report Nunley’s
threat, a reasonable jury could conclude that Neven knew
what happened at the meeting. Moreover, Neven supervised
the processing of requests to add someone to an inmate’s
enemy list. According to defendants’ own evidence,
caseworkers could not, on their own, add individuals to an
enemy list. The warden or his designee was required to
review and approve such requests. Wilk submitted the
request to add Nunley to his enemies list on October 29,
2013, and the attack did not occur until February 11, 2014,
over three months later. Construing the evidence in the light
most favorable to Wilk, we hold that a reasonable fact-finder
could conclude that Warden Neven was personally aware of
the risk posed by Nunley because of his role in supervising
the enemy list revision process.
We next evaluate whether defendants responded
reasonably to the known substantial risk that Nunley posed to
Wilk.
Taking Wilk’s evidence as true and viewing it in the light
most favorable to him, Leavitt’s response was not reasonable.
Leavitt knew that inmates in Unit 7 and Unit 8 sometimes
interacted. He nonetheless placed Wilk in Unit 8, knowing
that Nunley was in Unit 7 and would have an opportunity to
attack Wilk. Further, a reasonable jury could find that Leavitt
was responsible for submitting Wilk’s request to add Nunley
to his enemy list and that he failed to do so. Leavitt has never
stated that he processed Wilk’s form. He stated only that it
is his usual custom to process the forms, and that he could
have made a mistake. Because Nunley was not on Wilk’s
enemy list, other prison officials had no way of knowing that
Wilk needed protection from Nunley. Still further, Leavitt
actively misled Wilk by telling him that Nunley remained in
WILK V. NEVEN 13
disciplinary segregation when instead he had been moved to
Unit 7. Not only did Leavitt fail to protect Wilk and undercut
the ability of other officers to protect Wilk, but he also
reduced Wilk’s own ability to protect himself.
According to Wilk’s evidence, Nash either attended or
sent a representative to the October meeting that determined
where Wilk would be housed. Thus, a reasonable jury could
find that Nash either participated firsthand in the dangerous
housing assignment or knew about the assignment and did
nothing to alleviate the risk. See Clem, 566 F.3d at 1182
(noting that an official’s failure to act can constitute an
Eighth Amendment violation). Like Leavitt, Nash misled
Wilk by telling him that Nunley remained in disciplinary
segregation. Further, a reasonable jury could conclude that
Nash was at least partially responsible for the failure to
update Wilk’s enemy list because she acted immediately after
the attack to update the list, which suggests that she had the
authority to update the list all along.
Viewing the evidence in the light most favorable to Wilk,
Neven also either attended the October housing meeting or
sent a representative. Like Leavitt and Nash, he misled Wilk
by telling him that Nunley had not been moved to Unit 7.
Further, because Neven oversaw the process of updating
inmates’ enemy lists, a jury could find that Neven had the
power to process Wilk’s request but failed to do so.
Any reasonable prison official in the defendants’ position
would know that the actions defendants took, and failed to
take, violated the Eighth Amendment. None of the
defendants can claim ignorance to a prisoner’s right to be
protected from violence at the hands of other inmates. That
right has been clearly established since the Supreme Court’s
14 WILK V. NEVEN
decision in Farmer v. Brennan in 1994. See 511 U.S. at 833;
Castro, 833 F.3d at 1067. We have recently and explicitly
held that it is clearly established that prison officials must
“take reasonable measures to mitigate the [known] substantial
risk[s]” to a prisoner. Castro, 833 F.3d at 1067. Wilk’s case
does not involve the sort of “novel factual circumstances”
contemplated by Hope. 536 U.S. at 741. Rather, the facts are
“materially similar” to previous cases. Id.
We note that throughout proceedings in the district court,
while he was still incarcerated, Wilk struggled to obtain
discovery from defendants, who resisted turning over crucial
documents such as his institutional file and their records of
housing classification meetings. On remand, Wilk should
have another opportunity to seek the materials he requested
previously, which have the potential to identify or exclude the
defendants. To assist with this process, we encourage the
district court to appoint him counsel. See Jones v. Blanas,
393 F.3d 918, 936–37 (9th Cir. 2004).
Conclusion
Taking Wilk’s evidence as true and viewing it in the light
most favorable to him, we hold that defendants violated his
Eighth Amendment right to be protected from serious harm
while incarcerated. We remand to the district court for
further proceedings consistent with this opinion.
REVERSED AND REMANDED.