          United States Court of Appeals
                       For the First Circuit

No. 13-2210

                            DAVID LAKIN,

                       Plaintiff, Appellant,

                                 v.

        PATRICIA BARNHART, in her individual capacity as
      Warden of the Maine State Prison & MARTIN MAGNUSSON,
           in his individual capacity as Commissioner,
                 Maine Department of Corrections,

                      Defendants, Appellees,

              JOHN DOE, in his individual capacity as
                  Unit Manager, Maine State Prison,

                             Defendant.


No. 13-2211

                           GERARD LANDRY,

                       Plaintiff, Appellant,

                                 v.

        PATRICIA BARNHART, in her individual capacity as
        Warden of the Maine State Prison & JOSEPH PONTE,
           in his individual capacity as Commissioner,
                 Maine Department of Corrections,

                       Defendants, Appellees,

              JOHN DOE, in his individual capacity as
                  Unit Manager, Maine State Prison,

                             Defendant.
          APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. John A. Woodcock, U.S. District Judge]



                             Before

                     Thompson, Circuit Judge,
                   Souter,* Associate Justice,
                   and Kayatta, Circuit Judge.


     Verne Paradie for appellants.
     James E. Fortin, Assistant Attorney General, with whom Janet
T. Mills, Maine Attorney General, was on brief, for appellees.


                          July 7, 2014




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
          SOUTER, Associate Justice.

          The appellants in these consolidated cases, David Lakin

and Gerard Landry, are inmates in the Maine State Prison.     Their

actions charge the appellees, officials in the Maine Department of

Corrections, with deliberate indifference to a substantial risk

that inmates would use padlocks issued to them by the Prison to

assault fellow inmates such as the appellants.       See Farmer v.

Brennan, 511 U.S. 825 (1994).      We agree with the district court

that Lakin and Landry have failed to raise a triable issue of

substantial risk of assault by padlock and therefore affirm the

summary judgment for appellees.
                                  I.
          While inmates at the Maine State Prison, David Lakin and

Gerard Landry each suffered serious injury in assaults by other

inmates using prison-issued padlocks as weapons.     In 2010, Lakin

was assaulted by two or possibly three others, at least one of whom

struck Lakin in the head, face and neck with a padlock.   Roughly a

year later, Landry was assaulted by another inmate who struck

Landry’s head and torso with a padlock.

          From January 2004 through June 2012, there were at least

372 reported inmate-on-inmate assaults at the Prison, in at least

17 of which padlocks were weapons. Beginning in 2007 and extending

through 2012, the total number of all varieties of reported

assaults at the Prison rose significantly from past levels, with at


                                  -3-
least 25 in 2007, 28 in 2008, 50 in 2009, 49 in 2010, 52 in 2011,

and 86 in the first nine months of 2012.1          There were generally no

more than two reported padlock assaults annually during this six-

year time period, with the notable exception of 2010, when six were

reported.    See Lakin v. Barnhart, 2013 WL 5407213, at *1 (D. Me.

2013) (noting that there were no reported padlock assaults in 2007,

two in 2008, two in 2009, six in 2010, one in 2011, and one in

2012); Landry v. Barnhart, 2013 WL 5407220, at *1 (D. Me. 2013)

(same).     The   summary   judgment      record   does   not   contain     any

indication of the level of violence that is customary or generally

to be expected at prisons the size and character of Maine’s.

            Nor does the record serve to explain the spike in

violence culminating in the general level for 2012 or the six

padlock assaults in 2010.          One can only say that the overall

violence accelerated roughly with the arrival of a new warden,

appellee    Patricia   Barnhart,    whose    tenure   began     in   2009   and

continued through the close of discovery in 2012.             Barnhart was a

successor of appellee Martin Magnusson, who served as Commissioner




1
  The Maine Department of Corrections maintains a database of
reported inmate-on-inmate violence. The parties agree that the
database does not capture the full spectrum of violence that occurs
in the Prison.    The statistics on reported assaults cited here
include the figures from the database, with the assaults on Lakin
and Landry added. See Lakin v. Barnhart, 2013 WL 5407213, at *1
(D. Me. 2013); Landry v. Barnhart, 2013 WL 5407220, at *1 (D. Me.
2013).

                                    -4-
of the Maine Department of Corrections until he retired in 2011 and

was replaced by appellee Joseph Ponte.

           The record does disclose, however, why padlocks get into

prisoners’ hands. Maine law requires prison authorities to provide

inmates with reasonable means to secure their belongings safely.

See 34-A M.R.S. §3031(7) (“Any person residing in a correctional or

detention facility has a right to . . . [a] reasonably secure area

for maintenance of permitted personal effects.”).             The Prison

accordingly has a longstanding practice2 and informal policy of

issuing footlockers with padlocks to all inmates except those

housed in segregated units.3    See Appendix in No. 13-2211 (“App’x”)

at 18 (quoting the Prison Handbook:         “The prisoner is responsible

to secure his personal property in his assigned storage box with

[a] padlock when leaving his cell.”).

           Although they knew that inmates sometime used padlocks to

assault other prisoners, Magnusson and Barnhart were both of the

opinion that providing padlocks actually lowers the level of

violence   by   reducing   theft,   which    often   precipitates   inmate

2
  The record does not contain precise information on when the
practice began. However, it was extant well before Barnhart began
her tenure as Warden.    The record indicates that Magnusson was
employed by the Maine Department of Corrections in the early 1970s
and that the practice has been in effect “for as long as [he] can
remember.” App’x 18, 29-30.
3
 The policy does not extend to the most dangerous prisoners, who
are housed in segregation, because those inmates are allowed very
few personal possessions and are kept “locked down” most of the
time. App’x 19.

                                    -5-
conflict. The pertinence of this general observation is uncertain,

however, since both Lakin and Landry were housed in the Prison’s

“close custody” unit, where prisoners with “serious” criminal

backgrounds are placed.    App’x 102.   Inmates in that unit are kept

in individual cells that lock automatically when the doors are

closed.    Accordingly, only around half of the inmates in the unit

actually use the padlocks to secure their belongings.         In the

experience of Dwight Fowles, the manager of the close custody unit,

theft “happens from time to time” in the unit but is “not a real

regular occurrence.”     App’x 111.

            The Prison has no practice or policy of taking away a

padlock for any reason, even after the inmate has used it to

assault another prisoner. Barnhart testified that she sees no need

to take away such an inmate’s padlock, because the inmates are “in

a prison where if they want to find a weapon, they will find a

weapon.”    App’x 103.   Instead, the Prison relies on a number of

policies designed to deter inmate violence, such as specific

housing placements, segregation of particularly dangerous inmates,

and individual management plans.

                                  II.
                                  A.
            Lakin and Landry filed complaints in federal district

court under 42 U.S.C. § 1983 and the Maine Civil Rights Act, 5

M.R.S. § 4682, pleading violations of their Eighth Amendment


                                  -6-
rights.4   The complaints charge that appellees’ failure to take

adequate measures to protect inmates at the Prison from padlock

assaults violated Lakin’s and Landry’s Eighth Amendment right

against subjection to cruel and unusual punishment.   Specifically,

Lakin and Landry alleged that defendant “prison officials were

aware of the use of padlocks as weapons in inmate assaults on each

other, but despite that knowledge, continued to allow inmates to

possess such items and continued to disburse such items to inmates

entering prison.”   App’x 13.

                                B.

           Following discovery, the magistrate judge recommended

that appellees’ motions for summary judgment be granted.        The

magistrate found that “the number of padlock assaults per year has

typically been relatively low,” and concluded that the joint

“summary judgment record does not demonstrate a long-standing

4
 Lakin and Landry have at all times been represented by the same
counsel, and their complaints are virtually identical, other than
their different recitations of the facts relating to the assaults
each suffered.    Compare Appendix in 13-2211, at 11-15 (Landry
Complaint) with Appendix in 13-2210, at 12-16 (Lakin Complaint).
Lakin’s and Landry’s cases were classified as related, assigned to
the same district court judge and referred to the same magistrate
judge for purposes of managing discovery. The magistrate judge, on
the parties’ joint motion, consolidated the cases for purposes of
allowing joint discovery “on the issue of defendants’ policy of
issuing padlocks to inmates at the Maine State Prison.” Report of
Telephone Conference and Amended Scheduling Order, Dkt No. 27,
Lakin v. Barnhart, 11-cv-00332; Dkt No. 25, Landry v. Barnhart,
12-cv-00016. On appeal, the parties filed separate briefs in the
two cases, but the briefs are, again, virtually identical other
than their recitations of the facts relating to the assaults. We
resolve Lakin’s and Landry’s appeals by joint opinion.

                                -7-
history of frequent padlock assaults.”        Lakin, 2013 WL 5407213, at

*14-15; Landry, 2013 WL 5407220, at *14-15.                 The magistrate

therefore recommended dismissal of the claims because there were no

issues of fact with the potential to meet a plaintiff’s burden of

demonstrating that the Prison’s policies and practices created a

“substantial risk” that they would be assaulted with a padlock. At

the same time, the magistrate cautioned that her conclusion was

merely “a reflection upon the snapshot presented by the summary

judgment record” and was not to be construed “as foreclosing any

future challenge to the padlock policy” supported by an adequate

record.    Lakin, 2013 WL 5407213, at *15; Landry, 2013 WL 5407220,

at *15.

            The district court, again in separate but materially

identical opinions, adopted the magistrate’s recommendations and

granted appellees’ motions for summary judgment dismissing the

complaints.      The district court “agree[d] with the Magistrate

Judge”    that   the   summary   judgment   record   was   insufficient   to

“generate[] a genuine dispute of material fact” as to whether

“providing inmates with padlocks subjected [Landry and Lakin] to

conditions posing a substantial risk of serious harm” in violation

of the Eighth Amendment.         Lakin, 2013 WL 5407213, at *7; Landry,

2013 WL 5407220, at *7. We review the district court’s judgment de

novo, under the rule that summary judgment is called for when

“there is no genuine dispute as to any material fact and the movant


                                     -8-
is entitled to judgment as a matter of law.”                    Fed. R. Civ. P.

56(a).
                                      III.
                                       A.

               Under the Eighth Amendment, “prison officials have a duty

to   protect      prisoners   from    violence    at     the    hands       of   other

prisoners.”       Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.

1988) (ellipsis omitted)); see also ibid. (“Having incarcerated

persons with demonstrated proclivities for antisocial criminal, and

often violent, conduct, having stripped them of virtually every

means of self-protection and foreclosed their access to outside

aid, the government and its officials are not free to let the state

of nature take its course.” (internal citation, quotation marks,

and brackets omitted)). Not “every injury suffered by one prisoner

at the hands of another,” however, “translates into constitutional

liability.”       Id. at 834.    Instead, a prison official violates an

inmate’s       Eighth   Amendment    right     against    cruel       and    unusual

punishment “based on a failure to prevent harm” to the inmate only

under    two    circumstances:       “the    inmate    must    show   that       he   is

incarcerated under conditions posing a substantial risk of serious

harm,” and the prison official must have acted, or failed to act,

with “deliberate indifference to inmate health or safety.”                       Ibid.

(internal quotation marks omitted).


                                       -9-
                                     B.

          The   complaints   make    clear   that   the   only   source   of

substantial risk alleged and at issue here is the Prison’s policy

and practice of issuing padlocks to inmates, despite appellees’

knowledge that “several inmates at the . . . Prison have been

assaulted by other inmates using padlocks as weapons.”           App’x 13.

But the complaints do not allege, nor do Lakin and Landry assert on

appeal, any practice or policy on the part of the Prison that might

account for the rise in padlock assaults in 2010, and the pleadings

and briefs do not attempt to connect the overall increase in

violence at the Prison from 2007 to 2012 as an explanatory context

to the claims that are pleaded in the complaints. For that matter,

the complaints do not mention the overall spike in violence that

occurred in the Prison from 2007 to 2012, and neither Lakin nor

Landry has ever proffered any explanation for the dramatic upswing;

they do not allege that the arrival of appellee Barnhart as the

Prison’s new warden is pertinent to the sequence of violence over

that period, nor is there any indication in the summary judgment

record of an arguably relevant change in Prison practice or policy

following the arrival of the new Prison administration. Thus, what

is at stake in this appeal is the constitutionality of the Prison’s

padlock policy and practice, as viewed in a spare record, nothing

more.




                                    -10-
                                         C.

               The district court granted summary judgment for appellees

based    on    its    determination    that    the     summary    judgment     record

described no ground on which a reasonable jury could conclude that

inmates at the Prison faced a substantial risk of being assaulted

with a padlock by their fellow inmates.                     That determination was

sound.

               The Supreme Court has characterized a “substantial” risk

as one that is “objectively intolerable,” Farmer, 511 U.S. at 846,

and in a case much like this at least one of our sister Circuits

has equated a “substantial” risk with one that is “pervasive,” see

Beaton    v.    Tennis,   460   F.    App’x    111,    114-15    (3rd   Cir.    2012)

(affirming grant of summary judgment dismissing Eighth Amendment

claim concerning the danger of padlocks in prison, where assaults

involving a padlock “typically occur[red] at a rate of 1 or 2 per

year”).

               This   Circuit   has    not    yet     had    occasion   to   attempt

precision in explaining when the risk of violence among inmates is

sufficiently “substantial” to satisfy the first prong of Farmer,

and we need not close in on it now.                 It suffices, rather, to say

that, wherever the line between substantial and insubstantial risks

may lie, the risk as described here falls well within the zone of

those too insubstantial for an Eighth Amendment claim.                  As already

recounted, the annual occurrences of padlock assaults at the Prison


                                        -11-
have   generally   been   few,   both   in   absolute   number    and    as   a

percentage of the total inmate violence.        There were only six such

assaults even at the height of disorder, in 2010, and the numbers

quickly receded to their norm of one or two annually.            To be sure,

one assault, of any sort, is unacceptable, and there is no dispute

that these assaults caused Lakin and Landry serious harm.               But we

cannot say that a small number of assaults involving the use of a

particular prison-issued item, without more, is sufficient to

sustain the conclusion that providing the item without restriction

created “conditions posing a substantial risk of serious harm”

rising to the level of constitutional violation.         Farmer, 511 U.S.

at 834.

             Whether “more” evidence in appellants’ favor might have

been presented, we simply do not know.            Given the low numbers

involved, it seems unlikely that a stronger case for substantiality

could have been made out, but in any event no such information was

presented.    The record, for example, is bare on (i) the population

of inmates over time, whether fluctuating or steady; (ii) the level

of violence that might be expected at an institution the size and

character of the Prison; (iii) any change in the violent potential

of inmates housed in the Prison; (iv) any relevant changes in the

Prison’s practices or policies that might account for the increase

in overall inmate violence, the rise in padlock assaults in 2010,




                                   -12-
or their drop thereafter; and (v) any explanation for the sequence

of developments correlated with Barnhart’s arrival as warden.

          To be clear, we do not suggest that there is some

freestanding, numerical threshold (ex ante or ex post) for the

level of violence among inmates that is necessary for its risk to

be considered “substantial” under Farmer. After all, Farmer itself

involved a sui generis danger that apparently had never before

materialized at the institution involved.    See id. at 829-30, 848

(a   biological   male   transsexual   who   “project[ed]   feminine

characteristics,” had been beaten and raped after being placed in

the general male prison population at a high security prison). But

not every risk carries an inherent threat at a substantial level,

or of severity beyond the norms, and here the only record evidence

Lakin and Landry offer to suggest that the risk of padlock assaults

was “substantial” is the relatively low frequency with which they

occurred at the Prison during the period leading up to the assaults

they suffered.    This, standing alone, does not create a genuine

issue of material fact as to whether the risk was sufficiently

substantial to support an Eighth Amendment claim under Farmer.5


5
 Given our holding that Lakin and Landry did not make the showing
sufficient to entitle them to a trial on the first condition
necessary for liability under Farmer, we do not reach the separate
question whether the appellee prison officials demonstrated
“deliberate indifference” to the risk of inter-inmate padlock
assaults. Farmer, 511 U.S. at 828. On appeal, Lakin and Landry
focus almost exclusively on this second Farmer prong. It is enough
to say that evidence and arguments exists on each side of this
issue.

                                -13-
           Finally, because the district court was on firm ground in

finding no potential for a reasonable jury to determine that

defendants violated Landry and Lakin’s Eighth Amendment rights, we

conclude   that   the   trial   court    likewise   correctly   held   that

appellees were entitled to qualified immunity.
                                   IV.
           The judgment of the district court is affirmed.

           It is so ordered.




                                   -14-
