In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3491

ROBERT J. PIERSON,

Plaintiff-Appellant,

v.

WILLIAM HARTLEY, Supervisor, DAWN MACMILLAN, 

TERRELL TRIGGS, in their official and individual

capacities, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the 

Northern District of Indiana, South Bend Division.

No. 00 C 539—Robert L. Miller, Jr., Chief Judge.

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ARGUED OCTOBER 28, 2004—DECIDED DECEMBER 14, 2004

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Before POSNER, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Robert J. Pierson, an inmate of

the Indiana State Prison, was assaulted by fellow inmate

Jeremy Wilkinson while he slept. Wilkinson beat Pierson

with brass locks stuffed in a sock, gashing his head and

knees and crushing his left testicle. The attack required

surgical removal of Pierson’s damaged testicle and kept him

a month in the prison hospital. Pierson sued prison officers
2 No. 02-3491

and officials under 42 U.S.C. § 1983, alleging that they knew

of and ignored a serious risk to his safety. A jury found for

Pierson against two of the officers and awarded damages,

but the district court vacated the jury verdict and entered

judgment as a matter of law for the defendants. Because the

court directed judgment against Pierson, we construe the

facts in the light most favorable to him. Cefalu v. Village of

Elk Grove, 211 F.3d 416, 422 (7th Cir. 2000); Mathur v. Bd.

of Tr. of So. Ill. Univ., 207 F.3d 938, 941 (7th Cir. 2000). 

At the time of the attack, both Pierson and Wilkinson

were living in the “E” dormitory unit at the Indiana State

Prison. “E” dormitory is considered a meritorious assignment. Unlike the traditional cellblock units that house the

general prison population, “E” dormitory is an open-spaced

setting that allows unrestricted movement within the unit.

To be eligible for placement there, a prisoner must have

spent at least one year in the general prison population and

for at least ten years have been free from convictions or

conduct violations that would be considered a serious

security threat. 

Pierson was already housed in “E” dormitory when

Wilkinson arrived. Wilkinson had spent the previous six

months at the Benton County Jail, where his time was

marked by a history of violent conduct, including wresting

a toilet from a wall and concealing a nightstick and extension cord in his cell. When the Benton County Sheriff

transferred Wilkinson to the prison, he sent along a letter

detailing Wilkinson’s behavior at the jail and describing

him as an “ESCAPE AND ASSAULT RISK.” Despite this warning,

and the fact that Wilkinson had not spent any time in the

general population, prison unit team manager Dawn

MacMillan and casework manager Charles Wood placed

him directly in the “E” dormitory. Five months later,

Wilkinson was convicted in the prison disciplinary system

of possessing a weapon. Again, even though inmates with a
No. 02-3491 3

prison conviction typically are removed from “E” dorm and

placed in a cellblock unit, Wilkinson was allowed to remain.

Several months later, he brutally attacked Pierson.

Pierson sued a number of prison officers and officials,

alleging that they had violated his Eighth Amendment

rights by failing to protect him from the assault. At the

outset of the case, the district court dismissed two of the

officials—Indiana’s Department of Corrections Commissioner

and its Classification Director—for lack of personal involvement but allowed Pierson to proceed to trial pro se against

Indiana State Prison’s current and former superintendents,

classification officer William Hartley, correctional officer

Terrell Triggs, MacMillan, and Wood. At trial, the bulk of

Pierson’s evidence consisted of his testimony recounting the

events leading up to the attack. He also testified to the

contents of prison records that he claimed to have seen at

one point concerning Wilkinson’s assignment to “E” dorm.

Although Pierson requested the documents during discovery, the defendants did not produce them. Consequently,

Pierson was allowed to attest to what he saw, including a

statement that MacMillan and Wood were involved in

Wilkinson’s assignment. 

At the close of Pierson’s case, the defendants moved for

judgment as a matter of law, arguing that the evidence

failed to show either that they had decided to place

Wilkinson in “E” dormitory or that they knew of any danger

posed to Pierson. The judge granted the motion with respect

to the prison superintendents, noting no causal connection

between them and the assault. The remaining defendants

proceeded with their case and, at the close of their evidence,

renewed their motion for judgment as a matter of law. The

judge took the motion under advisement. The jury returned

a verdict for defendants Hartley and Triggs but against

MacMillan and Wood, assessing $50,000 in damages each.

MacMillan and Wood moved once more for judgment as
4 No. 02-3491

a matter of law on the question of the sufficiency of the

evidence, and the court again took the matter under advisement.

Three months later, the court granted the defendants’

motion and reversed the jury verdict, finding that the jury

instructions had “provided the jury with an insufficient understanding of the nature of prison officials’ constitutional

obligation to protect one inmate from another.” The court

explained that the jury was not and “could not reasonably

have been” instructed on the scope of the Eighth Amendment

and its legal standard of deliberate indifference in light

of “the spectrum of cases” on the subject. Further, after

comparing the facts of Pierson’s case with case law from

this and other circuits, the district court pronounced itself

“firmly persuade[d]” that “no constitutional violation occurred” because Pierson’s evidence was insufficient to show

a deprivation of his rights. It set aside the verdict and

entered judgment for MacMillan and Wood. 

On appeal, Pierson challenges only the district court’s

decision to grant judgment as a matter of law to MacMillan

and Wood. He points out that the court erred by reconsidering the jury instructions because the defendants waived any

objection on the issue by not contesting the instructions

before the jury retired. Moreover, he contends, the jury

was adequately instructed as to the proper legal standard

for showing a constitutional violation under the Eighth

Amendment. Finally, Pierson argues that the court erroneously granted judgment as a matter of law because the

evidence was sufficient for a reasonable jury to find that

MacMillan and Wood knew of and ignored a risk to his

safety.

As an initial matter, we are troubled by that portion of

the district court’s order suggesting that it granted judgment to the defendants as a matter of law because the jury

was inadequately instructed. Courts generally may not
No. 02-3491 5

grant judgment as a matter of law on an issue not raised in

the pre-verdict motion, see Committee Note on 1991

Amendment to Fed. R. Civ. P. 50; Duro-Last, Inc. v. Custom

Seal, Inc., 321 F.3d 1098, 1107 (Fed. Cir. 2003); American

& Foreign Ins. Co. v. Bolt, 106 F.3d 155, 159-60 (6th Cir.

1997); Kutner Buick, Inc. v. American Motors Corp., 868

F.2d 614, 617 (3d Cir. 1989); 9A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2537, pp.

344-45 (2d ed. 1995), and the defendants here did not raise

any issue with the instructions. Just as importantly, we

discern no error in the legal standard that the jury applied.

Following Farmer v. Brennan, 511 U.S. 825 (1994), we

have held that in order to establish a violation of the Eighth

Amendment, a plaintiff must show that a prison official was

deliberately indifferent to a substantial risk of serious harm

to an inmate. See, e.g., Case v. Ahitow, 301 F.3d 605, 607

(7th Cir. 2002); Reed v. McBride, 178 F.3d 849, 854 (7th Cir.

1999); Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir. 1997).

Negligence on the part of an official does not violate the

Constitution, and it is not enough that he or she should

have known of a risk. Haley v. Gross, 86 F.3d 630, 641 (7th

Cir. 1996). Instead, deliberate indifference requires evidence

that an official actually knew of a substantial risk of serious

harm and consciously disregarded it nonetheless. Id. Knowledge of a risk can be shown if an official was exposed to

information from which the inference could be drawn that

a substantial risk exists, and he or she also draws the

inference. Proffitt v. Ridgway, 279 F.3d 503, 506 (7th Cir.

2002); Mayoral v. Sheahan, 245 F.3d 934, 938-39 (7th Cir.

2001). 

The instruction given to the jury explained these elements. It read:

. . . Deliberate indifference means that a defendant

knew of and disregarded a substantial risk to the

plaintiff’s safety. A defendant knew of a substantial
6 No. 02-3491

risk of serious harm if he was aware of facts from which

such a risk could be inferred and he actually made that

inference.

In deciding whether a defendant knew of such a risk,

you should consider whether Mr. Pierson notified a

defendant of the specific risk posed to him by

Mr. Wilkinson, or, if a defendant did not know that Mr.

Pierson was especially likely to be injured as a result of

such a risk, whether the specific risk was obvious.

Knowledge of general risks of violence in prison are not

sufficient to demonstrate deliberate indifference.

Because we perceive nothing in this formulation that is at

odds with the proper legal standard we have just described,

see Reed, 178 F.3d at 854; Haley, 86 F.3d at 640-41, we do

not agree with the district court that the jury was provided

with an insufficient understanding of the law.

We also disagree with the court’s conclusion that Pierson

did not present sufficient evidence to demonstrate a violation of his constitutional rights. The law imposes a high

standard for overturning a jury verdict. 3M v. Pribyl, 259

F.3d 587, 606-07 (7th Cir. 2001); United States v. Billops, 43

F.3d 281, 284 (7th Cir. 1994). Although we review de novo

the decision to direct judgment as a matter of law, our task

when reviewing an overturned jury verdict is confined to

“assessing whether no rational jury could have found for the

plaintiff,” Mathur, 207 F.3d at 941 (quotation marks

omitted), drawing all inferences in favor of the party against

whom the judgment is directed and for whom the jury

found, Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001).

Thus, we inquire only whether the evidence, viewed in the

light most favorable to Pierson, was sufficient for a jury to

find that MacMillan and Wood knew that Wilkinson posed

a substantial risk of harm to Pierson and that they consciously disregarded that risk.
No. 02-3491 7

The jury here heard enough evidence to find that

MacMillan and Wood knew that Wilkinson posed a substantial risk to the other inmates. The jury heard testimony

suggesting that MacMillan and Wood reviewed the Benton

County Sheriff’s letter, which warned of Wilkinson’s aberrant behavior and advised that he was an escape and assault

risk. The jury also could have found that both MacMillan

and Wood knew of Wilkinson’s weapons conviction from

descriptions of their job duties. For instance, the jury heard

testimony that Wood handled transfer requests for the

prisoners and that Wilkinson’s request to remain in “E”

dorm pending the appeal of his weapons conviction was

approved. The jury could have inferred that Wood approved

the request and reviewed the conviction in doing so. As for

MacMillan, the jury heard her testify that she handled

security and supervised the case managers in “E” dorm; the

jury could have inferred that she would have been aware of

any security violations, including the weapons conviction,

as part of her responsibilities. Finally, Pierson submitted

documentation of the prison’s policy for placement in “E”

dorm requiring at least one year in the general prison

population and at least ten years free from serious convictions or conduct violations. MacMillan and Wood knew

Wilkinson had neither. Whether the defendants knew that

Wilkinson posed a specific risk to Pierson—rather than all

the members of “E” dorm—is unimportant; for in order

to establish a constitutional violation, it does not matter

“whether a prisoner faces an excessive risk of attack for

reasons personal to him or because all prisoners in his

situation face such a risk.” Haley, 86 F.3d at 643 n.33;

Billman v. Indiana Dept. of Corr., 56 F.3d 785, 788 (7th Cir.

1995).

The jury could have also found that MacMillan and Wood,

knowing that Wilkinson posed a substantial risk of harm,

disregarded that risk, first by assigning Wilkinson to the
8 No. 02-3491

dorm and then by allowing him to remain following his

weapons conviction. Although MacMillan and Wood denied

any role in Wilkinson’s assignment, Pierson was allowed to

testify to the contents of a prison report that, according to

him, included a statement that both MacMillan and Wood

made the decision to place Wilkinson in the dorm. Further,

as the supervisor and case manager for “E” dorm, MacMillan

and Wood would have been involved in any decision to

transfer Wilkinson. But Wilkinson inexplicably was allowed

to stay on in the dormitory after his weapons conviction;

even MacMillan testified that it was unusual for a prisoner

to remain following that kind of violation. Such inaction in

the face of a substantial risk is sufficient to demonstrate

deliberate indifference under the Eighth Amendment. See

Case, 301 F.3d at 607; Billman, 56 F.3d at 788.

The judgment of the district court is reversed and the

case remanded with instructions to reinstate the jury’s

verdict. 

REVERSED AND REMANDED.
No. 02-3491 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-14-04