17-3449-pr
Lewis v. Swicki

                              UNITED STATES COURT OF APPEALS

                                   FOR THE SECOND CIRCUIT

                                         August Term 2019

        Argued: October 22, 2019                                      Decided: December 6, 2019

                                         Docket No. 17‐3449

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
CHRISTOPHER J.M. LEWIS,

                  Plaintiff ‐ Appellant,

                         v.

BRIAN SIWICKI, DAVID BUTKIEWICUS,

         Defendants ‐ Appellees.1
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

Before: KATZMANN, Chief Judge, and NEWMAN, PARK, Circuit Judges.

        Appeal from a judgment of the District Court for the District of Connecticut

dismissing, on motion for summary judgment, an Eighth Amendment claim by a

state prisoner that state corrections officers were deliberately indifferent to a

substantial risk of harm, which resulted in an assault to the prisoner by another

prisoner.



        1
            The Clerk is requested to amend the official caption as above.

                                                        1
       Reversed and remanded.

       Judge Park dissents in a separate opinion.



                                     Rosendo Garza, Jr. (Daniel E. Wenner, on the brief),
                                          Day Pitney LLP, Hartford, CT, for Plaintiff ‐
                                          Appellant Christopher J.M. Lewis.

                                     James W. Caley, Asst. Atty. General (George Jepsen,
                                           Atty. General, on the brief), Connecticut
                                           Office of the Attorney General, Hartford, CT,
                                           for Defendants ‐ Appellees Siwicki and
                                           Butkiewicus.


JON O. NEWMAN, Circuit Judge:

       The principal issue on this appeal is whether state prison officials were

entitled to summary judgment on an Eighth Amendment claim by a state prisoner

that they were deliberately indifferent to a substantial risk of serious harm.

Christopher J.M. Lewis appeals from the Sept. 28, 2017, judgment of the District

Court for the District of Connecticut (Dominic J. Squatrito, District Judge)

dismissing his second amended complaint against Lt. Brian Siwicki2 and Capt.

David Butkiewicus (collectively, “Defendants” or “Appellees”), formerly prison




       2In some documents in this litigation, the name is spelled “Swicki,” but the Appellees’ brief
and Siwicki’s affidavit spell it ‘Siwicki.”
                                                 2
officials of the Connecticut Department of Correction (“DOC”). Lewis suffered

serious injuries when he was assaulted by another prisoner.

      We conclude that the District Court incorrectly stated the summary judgment

standard applicable to Lewis’s claim and that factual issues precluded entry of

summary judgment for Siwicki and Butkiewicus. We therefore reverse the grant of

summary judgment and remand for further proceedings.

                                        Background

      At all relevant times, Lewis was a prisoner at Northern Correctional

Institution (“NCI”), a prison operated by DOC. Lewis was a member of a gang of

prisoners at NCI, known as PIRU or PIRU Bloods. As described by the District Court

in other litigation, NCI is “a maximum level security institution. Housing inmates

on death row, gang threat program inmates, inmates with chronic discipline, and

inmates who have demonstrated a serious inability to adjust to confinement, posing

a threat to the safety and security of the community, staff, and other inmates.” Taylor

v. Murphy, No. 3:10‐cv‐245 (HBF), 2012 WL 4512510, at *1 (D. Conn. Sept. 30, 2012).

Siwicki and Butkiewicus both worked at NCI. Siwicki was a lieutenant, serving as

intelligence supervisor, and Butkiewicus was a captain.




                                          3
       Lewis was assigned to the Security Risk Group Threat Member (“SRGTM”)

program. The SRGTM program at NCI was designed for inmates who have been

“designated by DOC as gang members and threats to the general prison

population.” Id. On Nov. 25, 2010, Lewis was housed in unit 2E‐212, an area

designated as “Security Risk Group‐Phase 1.” All prisoners at NCI are confined to

their cells except for one hour of recreation in the prison’s yard, or brief intervals for

medical issues, visitation, and phone calls. All prisoners in Phase 1 are both strip‐

searched and handcuffed with their hands behind their backs when they go to the

recreation yard. We were informed at oral argument that NCI has a small yard

suitable for recreation by a single prisoner.

      In July 2010, according to Siwicki’s affidavit, he intercepted a written

communication about an episode in which Lewis “was described as having

disagreed with ‘PIRU Bloods’ rules and had been accused of breaking them.”3

Siwicki also averred that an inmate named Christian Mulligan, the leader of the

PIRU group at NCI, “was reported to have decided that Inmate Lewis ‘was done.’”

In August or September 2010, according to Lewis’s deposition, he had a meeting

with Siwicki, who told him that there was “information that an assault was going to




      3   Lewis said in his deposition that his “affiliation . . . is Piru, not Blood.” J. App’x 58.
                                                     4
be against [him].” J. App’x 66. Later in September, Lewis met with Siwicki and

Butkiewicus. They told Lewis that they were aware of the July episode and that his

safety could be in “jeopardy,” id. at 68, specifically, that a member of PIRU was

“going to attack” him, id. at 72.

       On November 25, 2010, Nicholas Trabakoulos, a NCI prisoner and member

of PIRU, attacked Lewis in the recreation yard with a four‐inch piece of metal,

inflicting serious wounds to his face and neck. Although handcuffed entering the

prison yard, Trabakoulos was able to slip one of his hands out of the handcuffs.

       After the attack, Siwicki conducted an investigation. In his report, he

“concluded that the assault on inmate Lewis was a result of a standing order issued

by inmate Mulligan prior to his transfer out of state.” Id. at 86. Siwicki’s report

stated, based on an interview with another inmate, Kareen Mayo, that Mulligan

“did place a hit on inmate Lewis . . . for his disrespect and violation of blood rules.”

Id. at 85.

       In April 2013, Lewis filed a pro se complaint under 42 U.S.C. § 1983 against

Siwicki and Butkiewicus,4 alleging that they violated his Eighth Amendment rights

by failing to protect him from Trabakoulos’s attack after learning of a threatened


       4 The Complaint also named the corrections officer who searched Trabakoulos after the
attack. The second amended complaint did not renew a claim against that officer.
                                             5
“future assault.” Id. at 5, ¶ 2. Defendants moved to dismiss, arguing that the attack

occurred approximately four months after the alleged threat. The District Court

granted Defendants’ motion to dismiss in October 2013. Lewis v. S[i]wicki, No. 3:13‐

cv‐00495, slip op. at 5 (D. Conn. Oct. 28, 2013) (“Lewis I”). The Court stated, “Nothing

happened for nearly six months,” id. at 4, although in fact the September attack

occurred four months after Siwicki learned of the threat in July.

       In October 2015, this Court vacated the dismissal of the claims against Siwicki

and Butkiewicus and directed the District Court to grant Lewis leave to amend his

complaint. Lewis v. S[i]wicki, 629 F. App’x 77, 80–81 (2d Cir. 2015) (“Lewis II”). We

said that “we are not persuaded that the fact that Lewis was not attacked for several

months after the threat was made is sufficient to defeat his deliberate indifference

claim at this stage.” Id. at 79.

       In February 2016, Lewis, represented by counsel, filed a second amended

complaint, adding details about Defendants’ knowledge of the threatened attack,

which he had learned from Siwicki’s incident report.

       In September 2017, the District Court granted Defendants’ motion for

summary judgment. See Lewis v. S[i]wicki, No. 3:13cv495 (DJS), 2017 WL 4286300 (D.

Conn. Sept. 27, 2017) (“Lewis III”). The Court recognized the two requirements that



                                           6
the Supreme Court established in Farmer v. Brennan, 511 U.S. 825 (1994), for a

prisoner claiming that prison officials failed to protect him in violation of the Eighth

Amendment: (1) incarceration “under conditions posing a substantial risk of serious

harm” and (2) prison officials’ “deliberate indifference to inmate health or safety,”

id. at 834. See Lewis III, 2017 WL 4286300, at *3. The Court concluded that Lewis had

failed to present evidence creating “a genuine dispute as to any material fact,” Fed.

R. Civ. P. 56(a), as to either substantial risk of serious harm or deliberate indifference

on the part of Siwicki and Butkiewicus, and therefore granted their motion for

summary judgment.

                                       Discussion

      We review de novo a District Court’s grant of summary judgment. See Hayes v.

New York City Dep’t of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). The summary

judgment standards are well established. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247–50 (1986); Celotex v. Catrett, 477 U.S.317, 322 (1986); Piesco v. City of New

York, 933 F.2d 1149, 1154 (2d Cir. 1991). We need emphasize only that, in

determining whether the pretrial showing of the parties permitted the District Court

to conclude that there was no genuine dispute of material fact, we must view the

evidence “in the light most favorable” to the party opposing summary judgment.



                                            7
See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Applying this standard, we

proceed to consider whether a genuine dispute of material fact existed with respect

to the two Farmer factors: a substantial risk of serious harm to Lewis and deliberate

indifference to that risk on the part of Siwicki and Butkiewicus.

      With respect to the first Farmer factor, substantial risk of serious harm, the

District Court did not question that the harm facing Lewis was serious. There was

information that an assault against him would occur because he had violated PIRU

rules, and the leader of PIRU at NCI had reported that, because of such violation,

Lewis “was done.” The threat against Lewis was plainly not “vague,” as our

dissenting colleague suggests. Diss. Op. at 4. What the District Court found

insufficient to present a genuine dispute of material fact was evidence that the risk

of serious harm to Lewis was substantial. The Court offered three reasons for this

conclusion.

      First, the Court noted that “a prison official cannot avoid liability under the

Eighth Amendment by arguing that, ‘while he was aware of an obvious, substantial

risk to inmate safety, he did not know that the complainant was especially likely to

be assaulted by the specific prisoner who eventually committed the assault.’” Lewis

III, 2017 WL 4286300, at *4 (quoting Farmer, 511 U.S. at 843). That quotation from



                                           8
Farmer led the Court to conclude that “the question in this case is whether the

defendants were ‘aware of an obvious, substantial risk’ to Lewis’s safety.” Id.

(quoting Farmer, 511 U.S. at 843). The District Court thereby transformed the phrase,

“obvious, substantial risk,” which Farmer had used in an introductory clause to

show when a prison official could not avoid liability, into a requirement for showing

that an official was liable. This was error, as Appellees concede. See Br. for Appellees

at 19.

         Furthermore, the District Court’s error not only required that the substantial

risk of serious harm must be “obvious,” the Court also erred in linking the prison

officials’ required mens rea to the first Farmer factor. However, their mental state is

relevant to the second Farmer factor, deliberate indifference, which we consider

below. The first Farmer factor, substantial risk of serious harm, depends not on the

officials’ perception of the risk of harm, but solely on whether the facts, or at least

those genuinely in dispute on a motion for summary judgment, show that the risk

of serious harm was substantial.

         The District Court’s second reason for rejecting the existence of a substantial

risk of serious harm was that Lewis’s testimony was “uncertain and ambiguous.”

Lewis III, 2017 WL 4286300, at *4. This assessment was also error. Lewis stated



                                            9
unequivocally at his deposition that Siwicki had told him that there was

“information that an assault was going to be against [him].” J. App’x 66, and that

Siwicki and Butkiewicus had told him that his safety could be in “jeopardy,” id. at

68, specifically, that a member of PIRU was “going to attack” him, id. at 72. In

addition, Siwicki’s affidavit acknowledged intercepting an inmate communication

before the attack in which Lewis was accused of breaking PIRU rules, as a result of

which, according to an order of the leader of PIRU, Lewis “was done.”5 Id. at 89.

There was nothing uncertain about this evidence.

       The District Court’s third reason for rejecting the existence of a substantial

risk of serious harm was the interval between the July interception of the inmate

communication and the November assault, an interval Judge Squatrito correctly

measured as four months, rather than the six months measured by the judge who

had dismissed Lewis’s pro se complaint. Whether a risk of serious harm to a

prisoner is substantial for purposes of the first Farmer factor is not subject to a bright

line test. As is often true, the determination of what is “substantial” depends on the



       5  Siwicki’s affidavit states that he interpreted the gang leader’s statement “to mean that
Inmate Mulligan had decided to terminate Lewis’s membership in the PIRU Bloods.” J. App’x 89.
Whether or not a fact‐finder would consider credible Siwicki’s claimed interpretation of the gang
leader’s statement, if he renews it at trial, that interpretation of merely a loss of PIRU membership
for Lewis is not one available to a district court at summary judgment, viewing the evidence in the
light most favorable to Lewis.
                                                 10
context of the inquiry.6 That is especially true where, as here, what is being assessed

is itself a variable concept such as risk.

       Pertinent to the context of whether the risk of serious harm to Lewis was

substantial is the nature of the prison population with whom he was incarcerated.

NCI is a maximum level security institution, housing prisoners “posing a threat to

the safety and security of . . . other inmates.” Taylor, 2012 WL 4512510, at *1. NCI

officials consider the risk of prisoners harming other prisoners so substantial that,

as noted above, they confine them to their cells except for an hour a day for

recreation in the prison yard and other brief intervals for medical attention,

visitation, and phone calls.

       In this context, it was error for the District Court to rule that a four month

interval between a reported threat of an assault on Lewis and the attack that

occurred did not present at least a genuine dispute of material fact as to whether the

risk of serious harm was substantial. Of course, at some point long after a prison




       6  See, e.g., Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (“[W]hatever the meaning of
‘substantial’ in other contexts,” the threshold for determining whether substantial evidence
supports an administrative agency’s finding is “not high.”); Victor v. Nebraska, 511 U.S. 1, 20 (1994)
(“[I]n the context of the sentence [of a jury charge]” equating substantial doubt with reasonable
doubt was not ambiguous.); Steadman v. S.E.C., 450 U.S. 91, 100 (1981) (For purposes of interpreting
sections 7(c) and 10(e) of the Administrative Procedures Act, “Congress intended the words
‘substantial evidence’ to have different meanings in context.”)


                                                 11
official learns that a gang leader has marked a named prisoner as “done” for

violating gang rules, the official would be entitled to consider the risk of harm

insubstantial. But four months is not, as a matter of law, beyond that point,

especially at a prison housing prisoners identified as threats to the safety of other

prisoners. Although a prison gang member planning to carry out a gang leader’s

order to see to it that another gang member is “done” might act soon, he might also

need at least a few months to obtain both a weapon and an opportunity to use it.

The District Court’s summary judgment for the Defendants failed to view the

evidence of the threat “in the light most favorable” to the party opposing summary

judgment (Lewis), as the Supreme Court requires, see Diebold, 369 U.S. at 655.

      Our dissenting colleague contends that the record does not “reflect that

defendants believed that Lewis was at risk notwithstanding the strict procedures of

the SRGTM program.” Diss. Op. at 4. The record is undisputed, however, that the

defendants believed the risk to Lewis was serious enough to inform him that “an

assault was going to be made against him,” J. App’x 66, and that his safety could

be in “jeopardy,” id. 68.

      With respect to the second Farmer factor, deliberate indifference on the part

of prison officials, the District Court first recited the Supreme Court’s statement that



                                          12
“‘prison officials who actually knew of a substantial risk to inmate health or safety

may be found free from liability is they responded reasonably to the risk, even if the

harm was not averted.’” Lewis III, 2017 WL 4286300, at *5 (quoting Farmer, 511 U.S.

at 844). The Supreme Court also said in Farmer that prison officials may be liable “by

failing to take reasonable measures to abate” a known risk of serious harm. 511 U.S.

at 847.

      The District Court then concluded that Lewis had failed to create a genuine

dispute of material fact as to whether Defendants’ failure to take action to protect

Lewis was unreasonable. See Lewis III, 2017 WL 4286300, at *5. The Court’s reason

was that the procedures at NCI for inmates in the SRGTM Program “virtually

preclude a finding of deliberate indifference.” Id. The Court pointed out that all

inmates were handcuffed behind their backs whenever they left their cells, were

searched before they entered the recreation yard, and were observed from a window

by DOC officers. See id. Our dissenting colleague also contends that these

procedures sufficed as a matter of law to insulate the defendants from liability for

failing to take reasonable steps to guard against the serious risk to Lewis of which

they were indisputably aware.




                                          13
      Although these procedures might well weigh against a fact‐finder’s

conclusion that Defendants failed to take reasonable steps to avoid harm to Lewis,

their persuasive force might be overcome by Defendants’ failure to place Lewis in

NCI’s individual yard for his hour of recreation, thereby significantly limiting the

opportunity for a PIRU member to carry out the PIRU leader’s order. A fact‐finder

might also consider that prison officials failed to take reasonable measures to protect

Lewis from harm by not transferring him out of NCI. Our dissenting colleague

points out that these arguably reasonable protective measures are not in the record

nor mentioned in the briefs. But we are not reviewing the sufficiency of a trial

record, only the correctness of a summary judgment for Defendants. The existence

of an individual recreation yard at NCI was brought to our attention at oral

argument and not disputed by Appellees. The availability of this protective measure

and the availability of a transfer are indisputable facts of which a court may take

judicial notice. See Fed. R. Evid. 201(b).

                                      Conclusion

      Viewing the evidence “in the light most favorable” to Lewis, the party

opposing Defendants’ motion, as we are required to do, see Diebold, 369 U.S. at 655,

we conclude that summary judgment for Defendants was improperly entered. The



                                             14
judgment of the District Court is reversed, and the case is remanded for further

proceedings.




                                       15
MICHAEL H. PARK, Circuit Judge, dissenting:

      The Eighth Amendment does not require prison officials to stand trial

when one inmate attacks another in spite of stringent security procedures

designed to prevent just this type of incident. The assault in this case occurred at

Northern Correctional Institution (“NCI”) in the Security Risk Group Threat

Member (“SRGTM”) program, a special unit in the maximum‐security prison

that housed inmates designated as gang members and threats to the general

prison population. The record reflects no history of assaults within the SRGTM

program or any other reason to question the effectiveness of its security

measures, which include 23‐hour daily confinement in cells, continuous

observation, regular strip searches, and handcuffing inmates behind their backs

whenever they are outside their cells. Under these circumstances—even

assuming that Lewis was incarcerated under conditions posing a substantial risk

of serious harm—Defendants reasonably relied on the special, maximum‐

security protocols of the SRGTM program. Because there is no indication that

Defendants acted with “deliberate indifference” to Lewis’s safety, I respectfully

dissent.
      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) (cleaned up).         The Supreme Court has set forth two

requirements for stating a violation of the Eighth Amendment. First, “the inmate

must show that he is incarcerated under conditions posing a substantial risk of

serious harm.” Id. at 834. Second, the inmate must demonstrate that the prison

official acted with “deliberate indifference to inmate health or safety.” Id. That is,

the prison official must “know[] of and disregard[] 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 he must also

draw the inference.” Id. at 837.


      Because this standard is strict, “[n]ot . . . every injury suffered by one

prisoner at the hands of another . . . translates into constitutional liability for prison

officials responsible for the victim’s safety.” Id. at 834. Even “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 844. This is because a “prison official’s duty under the

Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates


                                            2
due regard for prison officials’ ‘unenviable task of keeping dangerous men in safe

custody under humane conditions.’” Id. at 844–45 (citations omitted).


      Although the district court misstated the standard under the first Farmer

factor, there is no genuine issue of material fact as to whether Defendants acted

reasonably under the second factor. The SRGTM program was designed

specifically to prevent gang violence in the prison and thus implements strict,

pre‐emptive measures. See App’x at 89 (“[I]nmates are housed under these

restrictive conditions because of the potential for assaultive behavior stemming

from gang affiliation.”). For example, inmates in the program are observed every

15 minutes and are confined to their cells except for one hour of recreation time

five days per week. When they leave their cells, inmates are handcuffed behind

their backs and escorted by prison officials. They are strip‐searched before they

enter the recreation yard, and they remain handcuffed behind their backs while

officers observe them from a window. There is no evidence in the record that

these procedures were in any way inadequate to prevent assaults in the past or

that Defendants deviated from them in this case. Defendants thus acted

reasonably in relying on these security protocols to protect Lewis from any

possible ongoing threat stemming from gang affiliation.


                                         3
      Nor does the record reflect that Defendants believed that Lewis was at risk

notwithstanding the strict procedures of the SRGTM program—that is, that

Defendants actually knew of and disregarded an excessive risk to Lewis’s safety.

Nothing in Lewis’s allegations identified a need to consider additional

precautions. Lewis alleged only that Siwicki learned four months before the

assault that there was “information that an assault was going to be against”

Lewis, that Siwicki and Butkiewicus told him that his safety could be in

“jeopardy,” and that a member of PIRU was “going to attack” him. App’x at 66,

68, 72. On the basis of these vague threats alone, Defendants could not have

anticipated that an unidentified, potential assailant would be able to sneak a

weapon into the recreation yard, maneuver his bound hands from behind his

back, and then slip out of his handcuffs, all while evading detection by prison

officials. See id. at 84 (“Inmate Trabakoulous could be viewed stepping out of

view of the camera with his hand restraints secured from behind and returning

in view with them in the front. He then slips out of view again and returns in

view with one cuff unsecured.”). Trabakoulous had to circumvent at least three

different SRGTM program safeguards in order to carry out his attack on Lewis.

There is no evidence that Defendants aided, facilitated, or enabled



                                         4
Trabakoulous’s attack or that they failed to adhere in any way to SRGTM

program protocols.


      The majority proffers that Defendants could have placed Lewis in the

“individual yard for his hour of recreation,” an arrangement mentioned nowhere

in the record or by either party in their briefs. The majority also suggests that

Lewis could have been transferred out of NCI—despite the fact that the program

at NCI was specifically designed to house dangerous inmates like Lewis and

Trabakoulous. But these hypothetical precautions do not demonstrate that

Defendants acted unreasonably by relying on the security protocols of the

SRGTM program. The majority’s Monday‐morning quarterbacking fails to give

“due regard” to Defendants’ “unenviable task of keeping dangerous men in safe

custody under humane conditions.” Farmer, 511 U.S. at 845. Respectfully, the

majority overreaches by offering logistical suggestions to prison officials about

alternative arrangements that it believes might have increased an inmate’s safety.

This approach would “transform federal judges into superintendents of prison

conditions nationwide.” Id. at 860 (Thomas, J. dissenting). “[T]he question in

deliberate indifference cases is not whether the officials could have taken

additional precautions—almost invariably, with the benefit of 20/20 hindsight,


                                          5
there are additional precautions that could have been taken—but whether they

disregarded an excessive risk to health or safety.” Parrish v. Cleveland, 372 F.3d

294, 309 (4th Cir. 2004) (cleaned up). In short, the fact that Defendants could

have taken additional measures to protect Lewis does not mean that they acted

with deliberate indifference.


      For these reasons, I would affirm the judgment of the district court.




                                         6
