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