                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-1997

Hamilton v. Leavy
Precedential or Non-Precedential:

Docket 95-7309




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Filed June 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-7309

JEROME K. HAMILTON,
Appellant,

v.

FAITH LEAVY; PAMELA FAULKNER; WILLIAM QUEENER;
FRANCES LEWIS

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

(D.C. Civil No. 94-cv-00336)

Submitted Under Third Circuit LAR 34.1(a)
January 23, 1997

Before: NYGAARD and LEWIS, Circuit Judges and
COHILL,* District Judge.

(Filed June 30, 1997)




_________________________________________________________________
*Honorable Maurice B. Cohill, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
Justin K. Miller
Toll, Ebby, Langer & Marvin
Two Logan Square, 18th Floor
Philadelphia, PA 19103

Attorney for Appellant

Wendy A. Rising
Department of Justice
820 North French Street
Wilmington, DE 18901

Attorney for Appellees

OPINION OF THE COURT

LEWIS, Circuit Judge.

Jerome K. Hamilton appeals from a district court order
granting a motion to dismiss his civil suit, litigated pro se.
Hamilton brought suit pursuant to 42 U.S.C. § 1983
against Faith Levy, Pamela Faulkner, William Queener,
members of the Multi-Disciplinary Team at the Gander Hill
prison facility in Wilmington, Delaware (the "MDT
defendants"), and Frances Lewis, chairperson of the
Delaware Department of Corrections Central Institutional
Classification Committee ("CICC"). He alleges that the
appellees violated his right to be free from cruel and
unusual punishment, guaranteed by the Eighth
Amendment to the United States Constitution. Specifically,
Hamilton claims that these defendants knew of and
disregarded an excessive risk to his safety posed by other
inmates.

This case requires us to determine whether the district
court misapplied the Supreme Court's decision in Farmer v.
Brennan, 114 S. Ct. 1970 (1994), in which the Court
announced the guidelines for determining "deliberate
indifference" on the part of prison officials for purposes of
Eighth Amendment claims. We must also determine
whether the district court erred when it declined to allow
Hamilton to pursue discovery, denied his request for the

                    2
appointment of counsel and refused to permit him to
amend his complaint to add new defendants.

For the reasons explained below, we will reverse.

I.

Hamilton has a long history of being assaulted
throughout the Delaware prison system. He has been
transferred out of the State of Delaware twice, and has
been placed in protective custody on numerous occasions.
While an explanation for each of Hamilton's violent clashes
throughout the prison system is absent from the record,
the fact that Hamilton's safety has been an ongoing concern
is not in dispute.

The earliest evidence of violence against Hamilton dates
back to February 14, 1976. On that day he was stabbed by
a fellow inmate while incarcerated in the Maximum
Security Unit ("MSU") at the Delaware Correctional Center
in Smyrna, Delaware ("DCC"). Over a year later, on May 8,
1977, an inmate attacked Hamilton with a chair in the
MSU. On August 1, 1977, he was assaulted in the MSU by
twenty inmates who stabbed him in the back, stomach and
arms. He also suffered severe lacerations to the head and
face, which required his hospitalization at the Institution
Hospital at Gander Hill. For his own protection, Hamilton
remained confined there for four months with no outside
activities whatsoever. During that time, Hamilton made an
effort to return to the MSU, but due to threats by other
inmates, he was placed in protective custody pursuant to
the "Inmates Rule (31) Emergency Provisions" procedure.
Appellant's app. at 44a. Hamilton was later transferred out
of the Delaware state prison system entirely and was held
in federal custody in Leavenworth, Kansas. The stated
reasons for Hamilton's transfer were to alleviate
overcrowding and because "[Hamilton] had been assaulted
and stabbed at the DCC and the staff feared for his safety."
Id. at 27a.

At some point between 1982 and 1984, Hamilton was
returned from federal custody to the custody of the State of
Delaware, where he was again incarcerated at Gander Hill.
The assaults continued. On March 25, 1985, he was

                    3
transferred to the general prison population at Sussex
Correctional Institution in Georgetown, Delaware. There, he
eventually notified officials that his "life was in danger" and
that he would "be killed" if he remained there. Prison
officials believed him. The following week, they
recommended that he be placed in protective custody back
at Gander Hill. Hamilton was later transferred, on April 11,
1986, from Gander Hill to DCC. Hamilton was informed
that the reason for his transfer was that "it [was] felt that
[he] may be in danger of physical harm should [he]
continue to be housed [at Gander Hill]." Id. at 17a. In a
document prepared by a member of the MDT, it was
explained that "[Hamilton] was moved because he required
protective custody in a more secure setting in that his life
was in danger at [Gander Hill]." Id. at 47a. On May 21,
1986, Hamilton was placed in protective custody at DCC.

For reasons not apparent from the record, and despite
the serious concerns described above, Hamilton was again
returned to Gander Hill at some point in 1986. At that
time, Hamilton cooperated with an official investigation of
drug trafficking that led to the arrest of officers and
inmates at Gander Hill. Not surprisingly, Hamilton was
then labeled "a snitch" within certain circles of the prison
population. Id. at 10a. This latest development required
numerous transfers of Hamilton into protective custody.
Frances Lewis, CICC Chairperson, personally approved
transfers on November 16, 1988 and February 8, 1989, and
Hamilton was recommended for protective custody again on
May 11, 1989. Even up until November 30, 1989, the MDT
acknowledged that Hamilton's need for protective custody
had not changed. In fact, while Hamilton was still in
protective custody at Gander Hill, the MDT recommended
on August 17, 1990, that he be transferred "out of the
building" to protective custody at another location. Id. at
29a. Because there appeared to be no safe place for
Hamilton in the Delaware prisons, on September 4, 1990,
prison officials decided that Hamilton would be transferred
to Virginia to ensure his safety. Id. at 18a.

On December 12, 1991, Hamilton was temporarily
returned from Virginia to Gander Hill for the purpose of
prosecuting two civil actions in the Delaware courts, one of

                    4
which was an action against Delaware prison officials.
Concern for Hamilton's safety was again triggered, when,
on March 25, 1992, in a room at Gander Hill with several
inmates present, a guard called Hamilton "a good telling
mother f_____g snitcher." Id. at 25a. A committee appointed
to investigate this incident, apparently recognizing the risk
to Hamilton's safety, concluded that "comments of this
nature [have] the potential of a major disturbance and
requires immediate action." Id. at 24a. The guard who made
the statement was later reprimanded.

On June 18, 1992, Levy, Faulkner and Queener
convened a MDT meeting at Gander Hill to review
Hamilton's security classification and consider his request
to be placed in protective custody. The MDT made an
administrative summary of the reasons for Hamilton's
earlier transfer to Virginia and for his return to Delaware.
After reviewing Hamilton's history of being assaulted in
prison, the MDT unanimously recommended that Hamilton
be placed in protective custody. But despite their own
recommendation, the MDT took no immediate action to
protect Hamilton. The MDT's report and recommendation
were forwarded to the CICC, chaired by Lewis. The CICC
thereafter made a unanimous determination to take"no
action."

Consequently, Hamilton remained in the general
population. Less than two months following the CICC's "no
action" determination, on August 5, 1992, Hamilton was
assaulted by another prisoner. The prisoner who pleaded
guilty to the assault stated that he committed the offense
because Hamilton was "a snitcher on inmates and officers
at [Gander Hill]." Appellant's br. at 22. As a result of the
assault, Hamilton required surgery to repair two jaw
fractures and currently has two metal plates in his both
sides of his jaw.

Hamilton thereafter filed suit in district court, claiming
that prison officials violated state prison regulations and
showed a deliberate indifference to his safety, thereby
violating his constitutional right under the Eighth
Amendment to be free from cruel and unusual punishment.

                   5
II.

The district court granted summary judgment in favor of
the MDT defendants on the ground that they recommended
that Hamilton be placed in protective custody, and were
without authority to effectuate that recommendation. The
district court also granted summary judgment in Lewis's
favor on the ground that the facts did not establish that
she was aware of the risk to Hamilton, and that a
reasonable factfinder could not find otherwise. This appeal
followed.

The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1342. We have jurisdiction pursuant to 28
U.S.C. § 1291. We exercise plenary review over a district
court's order granting summary judgment. Public Interest
Research Group of New Jersey, Inc. v. Powell Duffryn
Terminals, Inc., 913 F.2d 64, 76 (3d Cir. 1990)."[W]e apply
the same test as the district court should have used
initially," id. at 76, to determine if there are any remaining
issues of material fact that would enable Hamilton to
prevail after giving him the benefit of every favorable
inference that can be drawn from the record. Fed. R. Civ. P.
56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

III.

The Eighth Amendment's prohibition against cruel and
unusual punishment protects prisoners against the
"unnecessary and wanton infliction of pain." Whitley v.
Albers, 475 U.S. 312, 219 (1986) (internal quotation marks
omitted). This constitutional limitation on punishment has
been interpreted to impose a duty upon prison officials to
take reasonable measures " `to protect prisoners from
violence at the hands of other prisoners.' " Farmer v.
Brennan, 114 S. Ct. 1970, 1976 (1994) (quoting Cortes-
Quinones v. Jimeniz-Nettleship, 842 F.2d 556, 558 (1st Cir.
1988)). While "[i]t is not . . . every injury suffered by one
prisoner at the hands of another that translates into
constitutional liability for prison officials responsible for a
victim's safety," "[b]eing violently assaulted in prison is
simply not `part of the penalty that criminal offenders pay
for their offenses against society.' " Farmer, 114 S. Ct. at

                    6
1977 (quoting Rhodes v. Chapman, 45 U.S. 337, 345
(1981)). Accordingly, "[a] prison official's deliberate
indifference to a substantial risk of serious harm to an
inmate violates the Eighth Amendment." Id., at 1974.

For an inmate to prevail on an Eighth Amendment
failure-to-protect claim, two requirements must be met.
First, the prisoner must demonstrate "that he is
incarcerated under conditions posing a substantial risk of
serious harm." Id. at 1977. This element is satisfied when
the alleged "punishment" is "objectively sufficiently
serious." Id. Second, the prison officials involved must have
a sufficiently culpable state of mind. Id. at 1979 ("[O]ur
cases mandate inquiry into a prison official's state of mind
when it is claimed that the official has inflicted cruel and
unusual punishment."). Specifically, the inmate must show
that the official "knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [s]he must also
draw the inference." Id.

Consequently, to survive summary judgment on an
Eighth Amendment claim asserted under 42 U.S.C. § 1983,
a plaintiff is required to produce sufficient evidence of (1) a
substantial risk of serious harm; (2) the defendants'
deliberate indifference to that risk; and (3) causation.
LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993).

IV.

A.

In its grant of summary judgment in favor of Lewis, the
district court found "no credible evidence of record that
[Hamilton] faced a substantial risk of serious harm from
any inmate during his temporary classification to the
general population [at Gander Hill], or that [Lewis] had
knowledge of such so as to justify characterizing her June
24, 1992 classification decision as the infliction of
punishment." Dist. ct. op. at 7.

In reaching this conclusion, the district court relied
primarily on Lewis's affidavit in which she explains her

                    7
refusal to place Hamilton in protective custody despite the
MDT's recommendation to provide him with such
protection. She claimed that "Hamilton was kept at [Gander
Hill] because there was no evidence of a problem there."
She further commented that "[i]f valid evidence of a danger
to plaintiff existed at [Gander Hill], the Committee would
have classified him appropriately." The district court
considered Lewis's affidavit conclusive in determining that
no material issues of fact existed for resolution at trial. Our
review of the record brings us to the opposite conclusion.

The district court erred in failing to acknowledge the
MDT's recommendation that Hamilton should be placed in
protective custody as evidence that he faced a substantial
risk of serious harm. The MDT members, on June 18,
1992, considered Hamilton's history of violent clashes
throughout the Delaware prison system, and acknowledged
his statement that "protective custody concerns exist
throughout the state."1 The MDT members then concluded,
unanimously, that Hamilton was in such danger as to
justify isolating him from the general population in
protective custody. Because there is no indication in the
record that the MDT's recommendation was unwarranted or
one-sided, we see no basis for the district court's
conclusion that there was no evidence that Hamilton faced
a substantial risk of serious harm.
_________________________________________________________________

1. The district court concluded that Hamilton failed to initiate the
classification review proceeding in June, 1992, and that this militated
against a finding of deliberate indifference on the part of Lewis. However,
the MDT Memorandum reveals that Hamilton did "claim that the
protective custody concerns still exist throughout the state." Appellant's
app. at 11a. We note that the district court's reasoning suggesting that
Hamilton was required to give advance notice of his safety concerns is
inconsistent with the teachings of Farmer. There, while the plaintiff
voiced no concern about his placement in the general population where
he was assaulted, this fact was insufficient to support a grant of
summary judgment for the defendants. Farmer, 114 S. Ct. at 1984-85
("[T]he District Court may have mistakenly thought that advance notice
was a necessary element of an Eighth Amendment claim. . . .").
Accordingly, in this case, the question of who initiated the June 18,
1992 classification review will have no bearing on the question of Lewis's
awareness of the risk posed to Hamilton.

                    8
Yet, a showing that there was an excessive risk to
Hamilton's safety is alone insufficient to preclude summary
judgment. Hamilton must also show that the harm he
suffered was caused by a prison official's deliberate
indifference to his safety. Deliberate indifference can be
shown when "a prison official knows of and disregards an
excessive risk to inmate health or safety." Farmer, 114 S.
Ct. at 1979. We are therefore required to "focus[on] what
a defendant's mental attitude actually was (or is), rather
than what it should have been (or should be)." Id. at 1980.
The Court believed this subjective approach to be
appropriate because it "isolates those who inflict
punishment." Id.

In this case, Lewis was made aware of a substantial risk
to Hamilton's safety when she reviewed the MDT's
unanimous recommendation to place Hamilton in protective
custody. Lewis never suggested that she was not in
possession of the MDT recommendation or that the
recommendation was baseless. Indeed, it could be argued
that Lewis had good reason to believe that the MDT's fears
were well-founded since Lewis herself approved Hamilton
for protective custody on two prior occasions. Moreover,
since Lewis should be charged with knowledge of
Hamilton's known cooperation with prison officials and the
subsequent branding of Hamilton as a "snitch," appellant's
app. at 47a, a factfinder could infer that Lewis knew that
the threat to Hamilton's safety was imminent.

A prison official's knowledge of a substantial risk is a
question of fact and can, of course, be proved by
circumstantial evidence. Id. ("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 . . . ."); see
Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995)
(existence of circumstantial evidence that prison officials
were aware of risk posed to prisoner by asbestos precluded
summary judgment). The Farmer Court explained in
hypothetical terms the type of circumstantial evidence
sufficient for a finding of actual knowledge on the part of a
prison official:

                    9
if an Eighth Amendment plaintiff presents evidence
showing 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, then such
evidence could be sufficient to permit a trier of fact to
find that the defendant-official had actual knowledge of
the risk.

Farmer, 114 S. Ct. at 1981-82.

The circumstantial evidence of record in this case, which
is essentially identical to those hypothesized by the Farmer
Court, does not appear to have been considered by the
district court. However, these facts constitute sufficient
circumstantial evidence upon which a factfinder could
conclude that Lewis "must have known" of the risk to
Hamilton's safety. Id. See id. at 1981 ("[A] factfinder may
conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious."). Accordingly,
based on the circumstantial evidence offered by Hamilton
which demonstrates the existence of an obvious risk,
Lewis's decision to consciously disregard that risk
(memorialized by the CICC "no action" decision), and
Hamilton's resulting injuries which occurred less than two
months following the CICC's decision to take "no action,"
we conclude that summary judgment was improper as to
Lewis.

B.

Moreover, the record indicates that the MDT defendants
took no immediate action following its recommendation to
the CICC that Hamilton should be placed in protective
custody. It also took no action after that recommendation
was rejected. The district court found that Hamilton's
Eighth Amendment claim could not be maintained against
the MDT defendants. It reasoned that because the MDT
defendants were without authority to effectuate their own
recommendation that Hamilton be placed in protective
custody, they could not be found to have deliberately

                    10
disregarded serious risks to his safety. In other words, the
court found that the MDT's submission of the report to
Lewis amounted to a reasonable response to the risk
Hamilton faced, which would preclude liability against
them.

The Farmer Court specifically noted that"prison officials
who actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded
reasonably to the risk, even if the harm ultimately was not
averted." Id. at 1982-83. If a prison official responds
reasonably to a risk to an inmate's safety, he or she cannot
be found to have acted with a sufficiently culpable state of
mind. Id. at 1983 ("Whether one puts it in terms of duty or
deliberate indifference, prison officials who act reasonably
cannot be found liable under the Cruel and Unusual
Punishments Clause."); id. ("A prison official's duty under
the Eighth Amendment is to ensure `reasonable safety.' ")
(quoting Hellig v. McKinney, 509 U.S. 25, 33 (1993)). Here,
while it appears that the MDT defendants acted reasonably
in following the internal prison procedures by
recommending to the CICC that Hamilton be placed in
protective custody, the reasonableness of their actions
following the rejection of that recommendation remains a
question.

The MDT defendants stated in their affidavits that they
"did everything they could" with respect to ensuring
Hamilton's safety when they recommended he be placed in
protective custody. But the district court's refusal to
consider whether the MDT defendants could have taken
further action failed to give Hamilton the benefit of all
reasonable inferences, to which he is entitled, as the non-
movant. Indeed, Hamilton's counter-argument, asserted in
his pro se complaint, is that the MDT defendants could
have taken additional steps, such as place him in
administrative segregation. Because neither party presented
conclusive evidence on this issue, there remains a genuine
issue of material fact regarding whether the MDT's
response to the risk Hamilton faced was reasonable.
Matshushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (to survive summary judgment,
non-movant must only show more than "some metaphysical

                    11
doubt as to the material facts"); Big Apple BMW, Inc. v.
BMW of North America, 974 F.2d 1358, 1363 (3d Cir. 1992)
("To raise a genuine issue of material fact [the] opponent
need not match, item for item, each piece of evidence
proffered by the movant. In practical terms, if the opponent
has exceeded the `mere scintilla' threshold and has offered
a genuine issue of material fact, then the court cannot
credit the movant's version of events against the opponent
. . . ."); Ely v. Hall's Motor Transit Co., 590 F.2d 62 (3d Cir.
1978) (any doubts as to the existence of a genuine issue of
material fact will be resolved against the movant). The
failure of the MDT defendants to take additional steps
beyond the recommendation of protective custody could be
viewed by a factfinder as the sort of deliberate indifference
to inmate safety that the Constitution forbids.

Accordingly, we will reverse the district court's grant of
summary judgment in favor of the MDT defendants.

V.

Hamilton also alleges that the district court erred by
denying his request for the appointment of counsel. In
denying Hamilton's request, the district court considered
the factors we announced in Tabron v. Grace, 6 F.3d 147,
155-56 (3d Cir. 1993), for determining whether the
appointment of counsel is warranted. We review the district
court's refusal to appoint counsel to Hamilton for abuse of
discretion. Id. at 155 n.4.

In Tabron we held that when deciding whether to appoint
counsel for indigent litigants, district courts should
consider the merits of the plaintiff's claim, the plaintiff's
ability to present his or her case, the difficulty of the legal
issues, and the degree to which the case will require
extensive factual investigation or turn on credibility
determinations. Id. at 156.

After weighing the various Tabron factors, the district
court concluded that Hamilton could not demonstrate
"special circumstances indicat[ing] the likelihood of
substantial prejudice to him resulting . . . from his probable
inability without such assistance to present the facts and
legal issues to the court in a complex but arguably

                     12
meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26
(3d Cir. 1984).

We are unable to agree with this conclusion for two
reasons: first, the district court erred in concluding that
Hamilton did not have a colorable claim; second, the record
indicates that Hamilton may be ill-equipped to represent
himself or to litigate this claim inasmuch as there is
unrebutted medical evidence that he suffers from a
paranoid delusional disorder. The district court's failure to
consider the weight of this fact demonstrates that more
serious consideration should have been given to Hamilton's
request for the appointment of counsel. We will therefore
reverse on this issue and remand to the district court with
instructions to appoint counsel for Hamilton. See Tucker v.
Randall, 948 F.2d 388, 391 (7th Cir. 1991) (appointment of
counsel appropriate when plaintiff presented colorable
claim of deliberate indifference to serious medical needs
resulting in permanent deformities).

VI.

We do not believe that Hamilton's request for additional
discovery and for leave to amend his complaint require
extended discussion. The district court denied these
requests on the ground that each was a futile attempt to
salvage Hamilton's action under 42 U.S.C. § 1983. As we
have explained above, the district court misconstrued
Farmer, and Hamilton does have a colorable Eighth
Amendment claim. We will, therefore, remand this issue to
the district court with instructions to permit Hamilton to
pursue full and reasonable discovery as is consistent with
the Farmer mandate relating to circumstantial evidence, as
described above. Because Hamilton's initial discovery
request involved an effort to obtain the names of those
officials who were aware of the substantial risk to his
safety, and that request was erroneously denied, it is
appropriate that Hamilton be allowed to amend his
complaint as well.2 Small v. Lehman, 98 F.3d 762 (3d Cir.
_________________________________________________________________

2. Our reversal in this matter renders it unnecessary to reach Hamilton's
contention that the district court improperly converted appellees' motion
to dismiss pursuant to Rule 12(b)(6) to one of summary judgment.

                    13
1996) (courts should allow liberal amendment of pro se
complaints).

VII.

For the foregoing reasons, we will reverse the district
court's order of November 2, 1994, granting summary
judgment to the MDT defendants. We will also reverse the
district court's order of May 26, 1995, granting summary
judgment to Lewis, and remand this case with instructions
to appoint counsel for Hamilton,3 to permit him to
undertake discovery and to permit him to amend his
complaint.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

3. Judge Nygaard would not directly appoint counsel, but, believing that
the issue is best addressed by the district court in the first instance,
would remand the question for that court to exercise its discretion, as
required by Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).

                   14
