Eugene Warren v. Officer Wood
Filed Nonprecedential Disposition PER CURIAM. The judgment is VACATED, and the case is REMANDED. We further order that the strike that the district court assessed against Warren be removed. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6882047-1]  [16-1701]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 31, 2017*
Decided November 7, 2017
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
Appeal from the United States District
Court for the Central District of Illinois.
Sue E. Myerscough,
O R D E R
Illinois prisoner Eugene Warren appeals the dismissal of his complaint alleging
that a correctional officer violated his Eighth Amendment rights by refusing to protect
him from another inmate who threw urine at him. The district judge dismissed the case
because Warren had not alleged that the officer knew in advance that the inmate would
* The defendant was not served in the district court and is not participating in
this appeal. (We do not know his first name, so we have used his title instead.) We have
agreed to decide this case without oral argument because the brief and record
adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
attack him with urine. Because the judge should have given Warren a chance to amend
his complaint to correct this omission, we vacate the judgment.
In his complaint Warren alleges that an inmate has been drenching him in urine.
He reports an incident from August 2014 when “my neighbor . . . was throwing cups of
urine, piss in my cell. I asked to speak to a Lt. (white shirt), C/O Woods told me that I
can’t see no Lt!” The judge screened the complaint under 28 U.S.C. § 1915A and
considered whether Warren stated an Eighth Amendment claim that Officer Woods was
deliberately indifferent to a substantial risk of harm from the urine. See Farmer
v. Brennan, 511 U.S. 825 (1994). The judge decided that Warren did not state a claim and
dismissed the case because Warren failed to plead that he warned Woods before he was
“doused with urine.” The judge added that any amendment would be futile because
“the facts of this case do not now, and even if replead, could not give rise to a
On appeal Warren contends that the judge should have allowed him to proceed
on his claim, and we agree. A prisoner states an Eighth Amendment claim by alleging
that a prison guard knew about but ignored a substantial risk of serious harm from
another inmate. See Billman v. Ind. Dep’t of Corrs., 56 F.3d 785, 788 (7th Cir. 1995); see also
Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015). The judge did not question
whether getting splashed with someone else’s urine creates a serious risk of harm.
Instead the judge observed that Warren did not allege that he notified Officer Woods in
advance of the urine attack. But the judge should have given Warren a chance to supply
that missing allegation because a sua sponte dismissal without one chance to fix a
complaint raises “serious questions about fair access to the courts.” Luevano v. Wal‐Mart
Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013); see also Kolupa v. Roselle Park Dist., 438 F.3d
713, 714 (7th Cir. 2006) (“Any decision declaring ‘this complaint is deficient because it
does not allege X’ is a candidate for summary reversal, unless X is on the list in Fed. R.
Civ. P. 9(b).”).
We recognize that the judge thought that Warren could not possibly patch up his
omission, but that is incorrect. Warren’s appellate brief illustrates why. In it Warren
offers additional details of his encounters with Officer Woods and the urine‐throwing
inmate in late 2014. These details make plausible his Eighth Amendment claim. He
writes that between October and November 2014, he reported to Officer Woods that “my
neighbor . . . was making threats to throw urine on me through the bars of my cell.”
Woods, however, did nothing to protect Warren, telling him “I don’t care.” Instead
Officer Woods ordered Warren to take down a plastic bag that Warren had hung for
“protection from getting assaulted with urine.” Later, as Warren had feared and warned,
the inmate threw a cup of urine into Warren’s cell. The cup struck Warren in his face,
splashing urine on his head and shirt. This cup throwing continued at least three times
before another officer hauled the offending inmate to segregation.
We may consider these allegations, though they appear in Warren’s appellate
brief and not in his complaint. “A party who appeals from a Rule 12(b)(6) dismissal may
elaborate on her allegations so long as the elaborations are consistent with the pleading.”
See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir. 2012). The appellate brief is
consistent with the complaint because it elaborates on the offending inmate’s campaign
to assault Warren with urine in late 2014. Although the first attack mentioned in the
complaint occurred in August, the attack of three thrown cups described on appeal
occurred soon after—around October—after Warren had warned Officer Woods of
another impending attack. So Warren may proceed on a claim against Woods regarding
the latter incident.
We offer two observations about this case on remand. First, Warren says in his
appellate brief that he intends to seek compensatory damages, but those are unavailable
unless he proves that he suffered a physical injury. See 42 U.S.C. § 1997e(e). He has
alleged that he suffered only “mentally and emotionally,” and in his appellate brief, he
adds that he experienced “emotional and mental stress, anguish, [and] shock.” These
injuries will not permit him to recover compensatory damages. But if the trier of fact
believes his assertions, he may be awarded nominal damages, and if the trier finds that
Woods’s conduct was willful and wanton, Warren may recover punitive damages.
See Gray v. Hardy, 826 F.3d 1000, 1007 (7th Cir. 2016); Smith v. Peters, 631 F.3d 418, 421
(7th Cir. 2011). Second, after Warren files an amended complaint, the district court can
examine whether getting splashed with another inmate’s urine constitutes serious harm.
See Rhodes v. Chapman, 452 U.S. 337, 348 (1981).
The judgment is VACATED, and the case is REMANDED. We further order that
the strike that the district court assessed against Warren be removed.
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