Williams v. Hulick et al

Filing 97

MEMORANDUM AND ORDER TO SHOW CAUSE, The Court adopts the Report and Recommendation 93 . The Court grants in part 87 and reserves ruling on the remainder of 87 . The Plaintiff is ordered to Show Cause Response due by 4/4/2014 why the Court should not grant summary judgment in favor of Wagner. The Court directs the Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 3/18/2014. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EUGENE WILLIAMS,
Plaintiff,
vs.
DONALD HULICK, SGT. WAGNER,
OFFICER JOHN DOE, and NURSE JANE
DOE,
Defendants.

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Case No. 3:10-cv-206-JPG-DGW

MEMORANDUM AND ORDER TO SHOW CAUSE
This matter is before the Court on the Report and Recommendation (“Report”) of United
States Magistrate Judge Donald G. Wilkerson following Defendant Timothy Wagner’s motion
for summary judgment (Doc. 93). Plaintiff Eugene Williams, an inmate formerly housed at
Menard Correctional Center (“Menard”), alleges that Wagner, a correctional sergeant at Menard,
was deliberately indifferent to Plaintiff’s health and safety by failing first to prevent and then to
halt an attack by fellow inmate Michael Johnson. Plaintiff asserts these failures violated his
Eighth Amendment right to be free from cruel and unusual punishment.
For the following reasons, the Court grants summary judgment in favor of Wagner on the
failure to prevent theory, and orders Plaintiff to show cause why, in light of the currently
undisputed facts, summary judgment should not be granted in favor of Wagner on the failure to
halt theory as well.
BACKGROUND
Plaintiff, originally proceeding pro se, filed this action under 42 U.S.C. § 1983 asserting
violations of his constitutional rights while he was incarcerated at Menard. Plaintiff alleges that

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on April 16, 2008, he and his cellmate, Michael Johnson, were handcuffed and taken to the
shower area. Plaintiff alleges that Defendant John Doe failed to sufficiently search Johnson for
weapons or other contraband before Plaintiff and Johnson were handcuffed. After locking
Plaintiff and Johnson in the shower area, Johnson’s handcuffs were released first and Johnson
began stabbing Plaintiff with a pen while Plaintiff was still cuffed. Plaintiff’s Complaint alleges
that Defendants Wagner and John Doe looked on and did not intervene until the attack abated.
Plaintiff also alleges that following the attack, he remained locked and bleeding in the shower
area for approximately fifteen to twenty minutes while Wagner and other correctional officers
searched for the key to unlock the door.
Plaintiff further alleges that prior to Defendant Donald Hulick’s (the warden at the time
of attack) arrival at Menard, prison staff removed a prisoner’s handcuffs before placing a
prisoner in a locked area with another inmate. However, once Hulick arrived at Menard, he
allegedly changed the procedure so that inmates’ handcuffs were removed one-by-one after
placing a prisoner in a locked area with another inmate.
The District Court completed its preliminary review of the Complaint pursuant to 28
U.S.C. § 1915A and, among other counts previously disposed of in this case, allowed Plaintiff to
proceed under the following count:
Count 3: Against Defendants Wagner and Doe for being deliberately indifferent to his
health and safety by failing to halt the attack by inmate Johnson, in violation of Plaintiff’s
Eighth Amendment rights.
Wagner now moves for summary judgment on Count 3, arguing he is entitled to
summary judgment because Plaintiff did not inform him, nor was he aware, that Plaintiff needed
to be protected from Johnson. Wagner also raises a defense of qualified immunity. In response,
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Plaintiff asserts there is a question of fact as to whether Wagner knew he was placing Plaintiff in
a position that would likely result in serious harm. Further, Plaintiff asserts that Wagner knew
there was a higher risk of harm in placing handcuffed, violent inmates in the shower with unhandcuffed inmates, and therefore there exists a question of fact as to whether Wagner is entitled
to qualified immunity.
Now before the Court is the Report by Magistrate Judge Wilkerson. The Report correctly
observes that Count 3, as written after the preliminary review under 28 U.S.C. § 1915A, contains
only the theory that Wagner was deliberately indifferent to Plaintiff’s health and safety by failing
to halt the attack. However, neither Wagner’s motion for summary judgment, nor Plaintiff’s
response, contains argument on that theory. Instead, the parties focus their efforts on the
question of whether Wagner was deliberately indifferent to Plaintiff’s health and safety by
failing to prevent the attack.
The Report recommends the Court restate Count 3 to include the failure to prevent
theory. It then recommends granting summary judgment in favor of Wagner on the failure to
prevent theory. Next, the Report recommends identifying the material facts not in dispute,
providing notice to the parties, allowing for response, and then granting summary judgment in
favor of Wagner on the original failure to halt theory. Finally, the Report recommends a finding
that Wagner is entitled to qualified immunity.
Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(2), and SDIL-LR 73.1(b),
Plaintiff filed objections (Doc. 94) to the Report’s recommendation that summary judgment be
entered in favor of Wagner on the theories that he failed to prevent and halt the attack. Wagner
filed a response. (Doc. 95).

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LEGAL STANDARD
Where a party timely and specifically objects to a magistrate judge’s Report and
Recommendation, the Court must undertake a de novo review of those portions to which
objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); SDIL-LR 73.1(b); Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may then “accept, reject, or modify, in
whole or in part, the findings or recommendations” made by the magistrate judge. 28 U.S.C.
§ 636(b)(1); SDIL-LR73.1(b). In making this determination, the Court must look at all the
evidence contained in the record and give fresh consideration to those issues to which specific
objection was made. Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999).
Summary Judgment
Plaintiff’s specific objections are to the Report’s recommendation of summary judgment
on both the failure to prevent and halt theories. Therefore, the Court reviews these issues de
novo.
Summary judgment is appropriate only if the moving party can show “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes
Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The party seeking summary judgment
bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex
Corp., 477 U.S. at 323.
In responding to a summary judgment motion, the nonmoving party “must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986); see also Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th
Cir. 2011) (“When a summary judgment motion is submitted and supported by evidence ... the
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nonmoving party may not rest on mere allegations or denials in its pleadings”). A mere scintilla
of evidence supporting the nonmoving party’s position is insufficient to overcome summary
judgment; a non-movant will prevail only when it presents definite, competent evidence to rebut
the motion. Estate of Escobedo v. Martin, 702 F.3d 388, 403 (7th Cir. 2012); Parent v. Home
Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012). Summary judgment is appropriate only if,
on the evidence provided, no reasonable juror could return a verdict in favor of the non-movant.
Carlisle v. Deere & Co., 576 F.3d 649, 653 (7th Cir. 2009).
The Court's role on summary judgment is not to evaluate the weight of the evidence, to
judge witness credibility, or to determine the truth of the matter, but rather to determine whether
a genuine issue of triable fact exists. Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528
F.3d 508, 512 (7th Cir. 2008). The Court considers the evidence in the light most favorable to
the nonmoving party and draws all reasonable inferences in favor of that party—here, Plaintiff.
See Anderson, 477 U.S. at 255; Spath, 211 F.3d at 396.
ANALYSIS
Currently Undisputed Material Facts
Based on the Report’s recommended findings, the Court adopts the following currently
undisputed material facts and finds them not clearly erroneous after a thorough review of the
record.
Prior to April 16, 2008, Plaintiff and Michael Johnson, his cellmate, were generally on
good terms. Johnson had made no threats towards Plaintiff, and Plaintiff did not tell anyone that
he felt threatened by Johnson. Immediately prior to April 16, 2008, Johnson began acting
“crazy” after a minor incident and Plaintiff no longer spoke to him. There is no evidence in the

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record, however, that Plaintiff ever felt threatened by Johnson or that he ever indicated to anyone
that he was fearful of Johnson.
On April 16, 2008, Menard was on lockdown. As a result, inmates being moved to the
shower area were individually handcuffed before leaving their cells. This procedure was
employed when Plaintiff and Johnson were moved to the shower area. After the inmates had
been patted down by other correctional officers, they moved down a stairwell to the shower area
where Wagner was stationed. It was Wagner’s duty to place the inmates in the designated shower
area. An old handcuff procedure would have required Wagner to remove an inmate’s handcuffs
before placing that inmate in the shower area. However, the handcuff procedure that Wagner
utilized on April 16, 2008 required him to first place all1 the inmates in the shower area. Once
the inmates were in the shower area, Wagner locked the door behind them. All inmates were
still in handcuffs at this point. Once the door was locked, each inmate, one at a time, came to the
door, placed their hands through a “chuckhole,” and was un-cuffed.
Unfortunately for Plaintiff, Johnson was un-cuffed before he was. As Plaintiff placed his
hands through the chuckhole to be un-cuffed, Johnson began stabbing him in the back with a
pen. Wagner ordered the inmates to stop fighting and then sprayed Mace into the shower. This
caused Johnson to stop stabbing Plaintiff and, along with the other inmates, to retreat to the back
of the shower area while Plaintiff remained next to the door.
After the attack, Plaintiff was told by “internal affairs” that Johnson “is known for
stabbing his cellies and stuff like that.” Wagner testified that Plaintiff’s and Johnson’s cell house
was where the “most aggressive” inmates were housed. There is no evidence, however, that
Wagner had any information on either Plaintiff’s or Johnson’s particular level of dangerousness

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According to Sgt. Wagner, approximately eight inmates were placed in the shower area at a time during a
lockdown such as the one on April 16, 2008.

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(or vulnerability), what they were incarcerated for, or whether they posed an individualized or
other specific threat to any other person. Wagner had no other interaction with Plaintiff after this
incident.
Count 3—Theory of Deliberate Indifference in Failing to Prevent the Attack
Plaintiff’s first objection is to the Report’s recommendation that summary judgment be
granted in favor of Wagner on the issue of whether he was deliberately indifferent in failing to
protect (and, therefore, to prevent the attack against) Plaintiff.
The Eighth Amendment imposes a duty on prison officials to “take reasonable measures
to guarantee the safety of the inmates.” Brown v. Budz, 398 F.3d 904 (7th Cir. 2005). This duty
includes protecting prisoners “from violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 833 (1994).
To succeed on a failure to protect claim, a plaintiff must first establish, objectively, that
“he was ‘incarcerated under conditions posing a substantial risk of serious harm.’” Santiago v.
Walls, 599 F.3d 749, 756 (7th Cir.2010) (quoting Farmer, 511 U.S. at 834). Second, a plaintiff
must establish that the defendant prison officials acted with deliberate indifference to that risk.
Id. The second element is more difficult to demonstrate and requires a subjective inquiry into a
defendant prison official’s state of mind. A prison official may be held liable only if he knows
an inmate faces a substantial risk of serious harm and “disregards that risk by failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847.
Whether Plaintiff was actually incarcerated under conditions posing a substantial risk of
serious harm does not appear to be the question at issue between the parties. Looking at the
evidence in the light most favorable to Plaintiff, a jury could reasonably conclude that Johnson

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was a particularly dangerous inmate, as “internal affairs” was aware of his tendency to assault his
cellmates.
The real dispute here is whether Wagner knew about the risk, and whether he failed to
take action if he knew of it. This second element – the subjective component of Plaintiff’s cause
of action – is the crux of the debate. In failure to protect cases, “the debate often exclusively
concerns what the prison official knew and when he knew it.” Pavlick v. Mifflin, 90 F.3d 205,
210 (7th Cir. 1996). Plaintiff must establish that Wagner “had actual knowledge of an
impending harm easily preventable, so that a conscious, culpable refusal to prevent the harm can
be inferred from the defendant’s failure to prevent it.” Santiago, 599 F.3d at 756 (emphasis
added).
1. Johnson’s Predatory Nature
Wagner argues he cannot be held liable for failing to prevent the attack because he had no
knowledge that Plaintiff required protection from Johnson. Wagner emphasizes that Plaintiff did
not communicate to him that he was in any danger, and Plaintiff even testified that there
“[w]asn’t no need” to tell anyone he felt threatened by Johnson.
In cases involving inmate-on-inmate violence, “a prisoner normally proves actual
knowledge of impending harm by showing that he complained to prison officials about a specific
threat to his safety.” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). This, however, is not the
only mechanism that can be used to prove actual knowledge. The Seventh Circuit Court of
Appeals has found that a deliberate indifference claim may be predicated on either the victim’s
particular vulnerability or the predatory nature of the assailant. See Brown, 398 F.3d at 911;
Billman v Ind. Dept. of Corr., 56 F.3d 785 (7th Cir. 1995). A deliberate indifference claim “may

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be predicated on custodial officers’ knowledge that a specific individual poses a heightened risk
of assault to even a large class of detainees.” Brown, 398 F.3d at 915 (emphasis added).
It is undisputed that the west cell house of Menard – where Plaintiff and Johnson were
cellmates and where the attack occurred – houses the “most aggressive” inmates at the facility.
It is also undisputed that Wagner considered all inmates at Menard to be dangerous and that a
prisoner left handcuffed in the shower could be harmed by another prisoner. From these facts,
along with Plaintiff’s allegation that prison officials admitted they were aware of Johnson’s
predatory nature, Plaintiff asks the Court to find a question of fact as to whether Wagner knew he
was placing Plaintiff in a position that would likely result in serious harm. A failure to protect
claim, however, cannot be predicated “merely on knowledge of general risks of violence in a
detention facility.” Brown, 398 F.3d 913. At best, Plaintiff has established that Wagner knew
that prisons are generally dangerous places and that some officials at Menard were aware of
Johnson’s predatory nature. There is no showing that Wagner himself was aware of a “specific”
individual’s “heightened risk of assault” or that Plaintiff was particularly vulnerable. There is no
showing that Wagner was even aware that Plaintiff and Johnson were cellmates. Therefore,
Plaintiff’s attempt to predicate deliberate indifference on Wagner’s alleged knowledge of
Johnson’s predatory nature is unsuccessful.
2. Handcuff Procedures
Plaintiff next attempts to predicate deliberate indifference on the theory that “this
procedure of leaving inmates handcuffed with other aggressive inmates who were not handcuffed
could cause harm.”
In Farmer, the Supreme Court did acknowledge that the obviousness of a risk could serve
as a predicate for deliberate indifference and that “a factfinder may conclude that a prison
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official knew of a substantial risk from the very fact that the risk was obvious.” 511 U.S. at 842.
This route is limited, however, as a plaintiff must show that a substantial risk of inmate attacks
was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the
past, and the circumstances suggest that the defendant-official being sued had been exposed to
information concerning the risk and thus ‘must have known’ about it.” Id. at 842-43.
Plaintiff has made absolutely no showing that the risk of the new handcuffing procedure
was longstanding, pervasive, or well-documented. There is no evidence in the record indicating
that an attack had previously occurred in the shower area under the new procedure. The record
is, in fact, void of evidence indicating that any violence had ever resulted from the new
procedure.
Plaintiff also fails to show that Wagner ever expressly noted an obvious substantial risk
to inmate safety resulting from the new handcuff procedures. Wagner testified that the
procedure of un-cuffing inmates one-by-one while they were locked inside the shower area
“[p]robably” exposed inmates to a higher risk of harm. Plaintiff relies on this answer as proof
that Wagner knew of a substantial risk of serious harm. The Court, however, is not convinced.
Wagner, in fact, testified that there could also be a higher risk of harm to the correctional officers
or others if inmates were un-cuffed one-by-one outside the shower area. Wagner’s references to
such indeterminate and hypothetical probabilities do not constitute a showing that he actually
recognized a substantial risk of serious harm to Plaintiff from the new procedure. Therefore,
Plaintiff’s attempt to predicate deliberate indifference on the obviousness of the risk must also
fail.
In sum, the Court, having thoroughly reviewed the entire record, finds not even a scintilla
of evidence demonstrating that Wagner had actual knowledge of, or even should have been

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aware of, a substantial risk to Plaintiff’s health and safety. Plaintiff has not “set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. Because no
genuine issue of material fact exists regarding the subjective component of the alleged offense,
summary judgment on the failure to prevent theory is granted in favor of Wagner.
Count 3—Theory of Deliberate Indifference in Failing to Halt the Attack
Plaintiff’s second objection is to the Report’s recommendation that the Court (after
identifying the facts not in dispute and allowing for response) grant summary judgment in favor
of Wagner on the issue of whether he was deliberately indifferent in failing to halt the attack on
Plaintiff.
Prison officials who actually knew of a substantial risk to inmate health or safety are free
from liability if they responded reasonably to the risk, even if the harm ultimately was not
averted, because in that case it cannot be said that they were deliberately indifferent. Peate v.
McCann, 294 F.3d 879, 882 (7th Cir. 2002).
Plaintiff essentially asks the Court to infer a material issue of fact where one simply does
not exist. Accepting Plaintiff’s allegations as true, Wagner left Plaintiff bleeding in the shower
with Johnson after the attack for fifteen to twenty minutes until he was able to unlock the door
and remove Plaintiff. From these facts, Plaintiff argues that Wagner acted with deliberate
indifference in failing to halt the attack.
Plaintiff cites Peate as proof that the Seventh Circuit Court of Appeals has previously
upheld claims of deliberate indifference where a prison official fails to stop or break up a fight.
In that case, however, the defendant correctional officer was alleged to have actually re-armed
the inmate-attacker with a weapon after having broken up a prior attack on the plaintiff only
minutes before. The Court of Appeals found sufficient evidence – including multiple witness
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affidavits corroborating the defendant’s re-arming of the inmate-attacker – to overcome the
District Court’s grant of summary judgment. In the matter currently before this Court, however,
both sides are in agreement that Wagner’s actions halted the attack on Plaintiff.
In deposition, Plaintiff stated, “…I just got -- started getting stabbed in my back, getting
stabbed in my back… and then they sprayed Mace on him, they sprayed Mace on him, and it got
him back from me, from stabbing me….” (Williams Dep. Tr. 13: 5-10) (emphasis added). When
asked who exactly sprayed the Mace, Plaintiff responded, “Wagner, Wagner, the sergeant.”
(Williams Dep. Tr. 24:9-10).
Even looking at the facts in the light most favorable to Plaintiff, the Court cannot ignore
Plaintiff’s admission that Wagner’s action of spraying Mace into the shower halted the attack.
No evidence whatsoever has been presented to the Court that would suggest Wagner’s response
to the attack was anything but reasonable. Taking Plaintiff at his word, Wagner’s actions were
in fact the very reason why the attack came to an abrupt end.
The Seventh Circuit has reiterated that “[w]hen there are no issues of material fact in
dispute, a district court may grant summary judgment on its own motion—as long as the losing
party is given notice and an opportunity to come forward with its evidence.” Osler Inst. Inc. v.
Forde, 333 F.3d 832, 836 (7th Cir. 2003); see also Celotex Corp., 477 U.S. at 326; Goldstein v.
Fidelity and Guar. Ins. Underwriters, Inc., 86 F.3d 749, 750 (7th Cir. 1996). Here, there are
currently no material facts in dispute preventing the Court from granting summary judgment in
Wagner’s favor on the failure to halt theory. Plaintiff, therefore, is hereby notified and given an
opportunity to respond and show cause why, in light of the currently undisputed facts, the Court
should not consider granting summary judgment in favor of Wagner.

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Defenses—Qualified Immunity
The Report also recommends finding Wagner entitled to qualified immunity on the
failure to prevent theory, as well as on the failure to halt theory (after notifying the parties and
affording an opportunity to respond). Plaintiff raised no specific objection to this segment of the
Report and instead only raised objections to a grant of summary judgment on the deliberate
indifference claims.
A plaintiff’s burden in overcoming a claim of qualified immunity is a heavy one, as he
must show that the defendant violated a constitutional right that was clearly established.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). As indicated in the preceding analyses, there is
no showing that Plaintiff’s constitutional rights were violated when he was placed in a shower
while handcuffed with an inmate who attacked him. Nor do the currently undisputed facts
establish that Plaintiff’s constitutional rights were violated by Wagner’s efforts to halt the attack.
Wagner is entitled to qualified immunity on the failure to prevent theory. Further, there
is currently no genuine issue of material fact that would prevent a finding of qualified immunity
on the failure to halt theory as well. However, on this discrete issue, the parties are hereby
notified and afforded an opportunity to respond before the Court enters final judgment.
CONCLUSION
For the foregoing reasons, the Court ADOPTS the Report and Recommendation (Doc. 93),
including its statement of undisputed material facts, and hereby RESTATES Count 3 of the
Complaint as follows:
COUNT 3: Against Defendants Wagner and Doe for being deliberately indifferent to his
health and safety by failing to prevent and halt the attack by inmate Johnson, in violation
of Plaintiff’s Eighth Amendment rights.
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FURTHER, the Court GRANTS IN PART Defendant Wagner’s motion for summary
judgment (Doc. 87) on Count 3 to the extent it alleges he was deliberately indifferent to
Plaintiff’s health and safety by failing to prevent the attack by inmate Johnson on the basis of
qualified immunity. The Court RESERVES RULING on the remainder of Wagner’s summary
judgment motion.
FURTHER, Plaintiff is ordered to show cause on or before April 4, 2014, as to why, in light
of the undisputed material facts, the Court should not grant summary judgment in favor of
Wagner on the theory that he was deliberately indifferent to Plaintiff’s health and safety by
failing to halt the attack by inmate Johnson.
The Court DIRECTS the Clerk of the Court to enter judgment reflecting the same at the
close of the case.
IT IS SO ORDERED.
DATED: March 18, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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