NONPRECEDENTIAL DISPOSITION
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 November 5, 2012*
Decided November 6, 2012
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐1763
JOSEPH HOBAN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 12‐1038
SALVADORE A. GODINEZ, et al., James E. Shadid,
Defendants‐Appellees. Chief Judge.
O R D E R
Joseph Hoban, an Illinois prisoner, appeals the dismissal of his suit under 42 U.S.C.
§ 1983. We conclude that Hoban states a claim of deliberate indifference to a serious medical
need, a claim of failure to protect him from a substantial risk of serious injury, and a claim
of retaliation. Thus, we vacate the judgment and remand for further proceedings.
*
The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 12‐1763 Page 2
Because Hoban’s suit was dismissed at screening, we assume for our purposes here
that his allegations are true and draw all reasonable inferences in his favor. See Smith v.
Peters, 631 F.3d 418, 419 (7th Cir. 2011). Hoban fears the Latin Kings gang, whose members
he says have a “contract” to murder him. When he arrived at Pontiac Correctional Center in
2010, the prison placed Hoban in protective custody because members of the gang had
already attacked him several times when he was at Cook County Jail and Menard
Correctional Center. The next year, however, correctional officers removed Hoban from
protective custody and disciplined him with segregation for 13 days because, Hoban says,
the officers wanted to “teach [him] a lesson” for “writing lawsuits” against officials at Cook
County Jail. The prison sees it differently: A correctional officer charged in a disciplinary
report that Hoban had assaulted another inmate while in protective custody, thus
warranting his removal to segregation. Hoban denied the charge, contending that the prison
knows that he acted in self‐defense, but a grievance officer sustained the charge.
During the 13 days that Hoban was in segregation, he needed medical attention. The
water was turned off, so Hoban was forced to drink from the toilet and became severely
dehydrated. Although Hoban asked for medical attention, the guards refused to get him
treatment. Instead, they forced Hoban to kneel on the cell concrete for extended periods,
prompting Hoban to complain that kneeling exacerbated his sciatica and that he was in
severe pain from a recent surgery. One officer asked Hoban where he had surgery; when
Hoban pointed to his lower right abdomen, the officer beat him in the incision area,
producing more abdominal pain and blood in his urine. He again asked for medical
treatment, but the officers refused until his bruises healed from the beating.
After Hoban was released from segregation, the prison refused to return him to
protective custody, as further punishment for his lawsuit against officials at Cook County
Jail. Terri Anderson, the prison administrator who handles requests for protective custody,
ignored Hoban’s pleas that he needed to return to protective custody to avoid attacks from
members of the Latin Kings. In Hoban’s brief to this court, he adds that he gave the prison a
handwritten list naming the members of the Latin Kings at Pontiac targeting him for
murder. In denying his request for protective custody, prison administrators wrote that
Hoban’s unprovoked assault on another inmate while previously in protective custody was
“not indicative of an inmate in need of protection” and showed that he was a threat to
others in protective custody. Hoban appealed that decision to the Administrative Review
Board, but the Board concluded that because Hoban had not identified any particular
enemies, he did not warrant protective custody. Remaining outside of protective custody,
Hoban experienced significant emotional and psychological distress because he was
terrified that members of the Latin Kings would attack him at any time. On appeal Hoban
asserts that the gang members did, in fact, attack him after he was removed from protective
custody. He is currently back in protective custody.
No. 12‐1763 Page 3
Hoban sued the unnamed correctional officers who ignored his need for medical
treatment and the officers who, to retaliate against him for his earlier lawsuit, falsely
charged him with assault in order to place him in segregation and later keep him out of
protective custody. He also sued several other officials: Anderson (the administrator who
denied his request for protective custody), the warden of Pontiac, the Director of the Illinois
Department of Corrections, a prison grievance officer, and several members of the
Administrative Review Board. He brings three claims: (1) The defendants retaliated against
him for suing Cook County Jail officials by placing him into segregation and removing him
from protective custody; (2) By denying his requests for protective custody, the defendants
deliberately ignored a known, substantial risk that the Latin Kings would kill or seriously
injure him; and (3) While he was in segregation, officers deliberately ignored his need for
medical treatment. Hoban seeks compensatory damages, punitive damages, and injunctive
relief requiring the prison officials to place him in protective custody.
The district court addressed only the claim for failure to protect and Hoban’s request
for an injunction. The court reasoned that Hoban had not designated any specific enemies at
Pontiac, so “[t]o order Hoban into immediate protective custody would essentially amount
to a blanket order to protect him from any unidentified enemies that may be lurking
somewhere in the system.” The court dismissed the suit, explaining that Hoban seeks only
the injunctive relief of protective custody and that he had no likelihood of success. On
appeal Hoban argues that all of his claims, including the ones not addressed by the district
court, should have survived screening. We review de novo a dismissal under § 1915A for
failure to state a claim. Westefer v. Snyder, 422 F.3d 570, 574 (7th Cir. 2005).
We begin with the first of two claims that the district court did not address—that the
correctional officers retaliated against Hoban for suing jail officials. To state a retaliation
claim, Hoban must allege that “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity
in the future; and (3) the First Amendment activity was at least a motivating factor in the
[d]efendants’ decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009) (internal quotations omitted). Suing prison officials is protected activity under the
First Amendment. Lewis v. Casey, 518 U.S. 343, 350 (1996); Lekas v. Briley, 405 F.3d 602, 614
(7th Cir. 2005); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). Hoban alleges that because
he sued Cook County guards, Pontiac correctional officers falsely accused him of assaulting
another inmate in order to punish him with segregation, keep him from protective custody,
and leave him to face a likely violent attack. These allegations suffice to state a retaliation
claim against those Pontiac correctional officers, as yet unnamed, who Hoban alleges falsely
charged him with the assault.
We also agree with Hoban that his complaint states an Eighth Amendment claim
against the unnamed correctional officers who denied him medical attention for his
No. 12‐1763 Page 4
dehydration, abdominal pain, and internal bleeding. A deliberate‐indifference claim against
a prison official for denying adequate medical treatment requires both a serious medical
condition and the disregard of a known, substantial risk of harm to the inmate. Farmer v.
Brennan, 511 U.S. 825, 834, 837 (1994); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A
delay of medical treatment may constitute deliberate indifference, depending on the
seriousness of the condition, the officer’s awareness, and the ease of providing treatment.
See Smith v. Knox County Jail, 666 F.3d 1037, 1040 (7th Cir. 2012); McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010). “Even a few days’ delay in addressing a painful but readily
treatable condition may suffice to state a claim of deliberate indifference.” Smith, 666 F.3d at
1040; see Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009) (state
hospital employees could be liable for several‐day delay in treating prisoner who
complained that his IV was causing him serious pain); Edwards v. Snyder, 478 F.3d 827,
831–32 (7th Cir. 2007) (plaintiff who dislocated his finger and was needlessly denied
treatment for two days stated a deliberate‐indifference claim).
Hoban has alleged two serious, treatable conditions that officers ignored for the
13 days he remained in segregation. First, after an officer beat Hoban in the area of his
recent surgical incision, he suffered abdominal pain and blood in his urine. He asked for
medical treatment but the correctional officers ignored his pleas. Second, Hoban was
dehydrated from the lack of water and the heat in the segregation cell, but the guards again
denied him treatment. Although these are merely allegations, severe abdominal pain, blood
in the urine, and dehydration are serious enough to require that officers who are aware of
these problems take prompt action. See Smith, 666 F.3d at 1040; Edwards, 478 F.3d at 831–32.
Finally we turn to the one claim that the court did address—that by refusing to
return Hoban to protective custody, the prison failed to protect him from a known risk of
attack by members of the Latin Kings. To state a claim for failure to protect, Hoban needs to
allege that (1) the prison’s denial of his request for protective custody posed a substantial
risk of serious harm and (2) the prison acted with deliberate indifference to that risk.
See Farmer, 511 U.S. at 834, 837; Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008).
Although damages for “a deliberate indifference claim cannot be predicated merely
on knowledge of general risks of violence,” Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
2000), or fear of an unrealized attack, see Babcock v. White, 102 F.3d 267, 270 (7th Cir. 1996),
Hoban alleged more than generalized risks and fears: He asserts in his brief on appeal that
he gave the prison the names of specific members of the Latin Kings who had a murder
contract on him, that members of this gang had access to him outside of protective custody,
that they had attacked him once before when he was out of protective custody, and that
they attacked him again after Anderson denied his request for protective custody. We may
consider these allegations on appeal, Smith, 666 F.3d at 1039, and they suffice to state a claim
against the prison official who knew this information but nonetheless refused him
No. 12‐1763 Page 5
protective custody. See Brown v. Budz, 398 F.3d 904, 911–12 (7th Cir. 2005) (concluding that
Caucasian detainee alleged a substantial risk by stating that another detainee had a known
history and propensity of attacking Caucasians and was allowed unsupervised access to
him).
We observe that the only proper defendant on this last claim is Anderson, the
administrator who allegedly denied his request for protective custody despite knowing the
risk of attack. Section 1983 limits liability to public employees “for their own misdeeds, and
not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 595–96 (7th Cir. 2009). Hoban faults
the warden and the Director of IDOC for not overruling Anderson. But top‐level
administrators are entitled to relegate to others like Anderson the primary responsibility for
specific prison functions without becoming vicariously liable for the failings of their
subordinates. Id. Likewise, those who review administrative decisions of others, like the
prison grievance officer and the members of the Review Board whom Hoban has also sued,
are not liable either. Id.; George v. Smith, 507 F.3d 605, 609–10 (7th Cir. 2007) (“Ruling against
a prisoner on an administrative complaint does not cause or contribute to the
[constitutional] violation.”); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006).
Finally Hoban moved for appointment of counsel in the district court, but the district
court did not rule on the motion because it dismissed Hoban’s complaint. Because we
believe a remand is necessary, the district court should reevaluate Hoban’s motion. We
observe that because of the complex issues involved in Hoban’s suit, appointment of
counsel would be warranted.
The judgment dismissing Hoban’s complaint is VACATED, and the case is
REMANDED for further proceedings. The only remaining defendants are Anderson and the
unnamed correctional officers.