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. e du/thir dc ir c uit_1997/143Filed 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 Distric t Judge for the Western District of Pennsylvania, sitting by design ation.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 or der granting a motion to dismiss his civil suit, litiga ted pro se

. Hamilton brought suit pursuant to 42 U.S.C. § 1983 against Faith Levy, Pamela Faulkner, William Queene r, members of the Multi-Disciplinary Team at the Gande r Hill prison facility in Wilmington, Delaware (the "MDT defendants"), and Frances Lewis, chairperson of the Delaware Department of Corrections Central Institut ional 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. Specif ically,
Hamilton claims that these defendants knew of and disregarded an excessive risk to his safety posed b y other
inmates.

This case requires us to determine whether the dist rict court misapplied the Supreme Court's decision in Fa rmer v. Brennan , 114 S. Ct. 1970 (1994), in which the Court announced the guidelines for determining "deliberat e indifference" on the part of prison officials for p urposes of Eighth Amendment claims. We must also determine
whether the district court erred when it declined t o allow Hamilton to pursue discovery, denied his request fo r the

2appointment 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 occas ions. While an explanation for each of Hamilton's violent clashes throughout the prison system is absent from the rec ord, 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 stabb ed 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 t he 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 he ad and face, which required his hospitalization at the Ins titution Hospital at Gander Hill. For his own protection, Ha milton
remained confined there for four months with no out side activities whatsoever. During that time, Hamilton m ade an effort to return to the MSU, but due to threats by other inmates, he was placed in protective custody pursua nt to the "Inmates Rule (31) Emergency Provisions" proced ure. Appellant's app. at 44a. Hamilton was later transfe rred out of the Delaware state prison system entirely and wa s held in federal custody in Leavenworth, Kansas. The stat ed
reasons for Hamilton's transfer were to alleviate overcrowding and because "[Hamilton] had been assau lted
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

3transferred to the general prison population at Sus sex

Correctional Institution in Georgetown, Delaware. T here, he eventually notified officials that his "life was in danger" and
that he would "be killed" if he remained there. Pri son 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 informe d 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 req uired 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 despi te the serious concerns described above, Hamilton was again returned to Gander Hill at some point in 1986. At t hat time, Hamilton cooperated with an official investig ation 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 t he prison population. Id. at 10a. This latest development required numerous transfers of Hamilton into protective cust ody. Frances Lewis, CICC Chairperson, personally approve d transfers on November 16, 1988 and February 8, 1989 , and Hamilton was recommended for protective custody aga in on May 11, 1989. Even up until November 30, 1989, the MDT acknowledged that Hamilton's need for protective cu stody had not changed. In fact, while Hamilton was still in protective custody at Gander Hill, the MDT recommen ded 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, 1 990, prison officials decided that Hamilton would be tra nsferred to Virginia to ensure his safety. Id. at 18a.

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

4which was an action against Delaware prison officia ls.

Concern for Hamilton's safety was again triggered, when, on March 25, 1992, in a room at Gander Hill with se veral inmates present, a guard called Hamilton "a good te lling mother f_____g snitcher." Id. at 25a. A committee appointed to investigate this incident, apparently recognizin g the risk to Hamilton's safety, concluded that "comments of t his 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 assault ed in prison, the MDT unanimously recommended that Hamilt on be placed in protective custody. But despite their own recommendation, the MDT took no immediate action to protect Hamilton. The MDT's report and recommendati on were forwarded to the CICC, chaired by Lewis. The C ICC
thereafter made a unanimous determination to take"n o 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 ple aded guilty to the assault stated that he committed the offense
because Hamilton was "a snitcher on inmates and off icers at [Gander Hill]." Appellant's br. at 22. As a resu lt of the assault, Hamilton required surgery to repair two ja w fractures and currently has two metal plates in his both sides of his jaw.

Hamilton thereafter filed suit in district court, c laiming that prison officials violated state prison regulat ions and showed a deliberate indifference to his safety, the reby violating his constitutional right under the Eighth Amendment to be free from cruel and unusual punishm ent.

5II.

The district court granted summary judgment in favo r of the MDT defendants on the ground that they recommen ded that Hamilton be placed in protective custody, and were without authority to effectuate that recommendation . The district court also granted summary judgment in Lew is's favor on the ground that the facts did not establis h that she was aware of the risk to Hamilton, and that a
reasonable factfinder could not find otherwise. Thi s 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 di strict court's order granting summary judgment. Public Int erest Research Group of New Jersey, Inc. v. Powell Duffry n Terminals, Inc. , 913 F.2d 64, 76 (3d Cir. 1990)."[W]e apply
the same test as the district court should have use d 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 favor able
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 an d unusual punishment protects prisoners against the "unnecessary and wanton infliction of pain." Whitle y v. Albers , 475 U.S. 312, 219 (1986) (internal quotation mark s omitted). This constitutional limitation on punishm ent has been interpreted to impose a duty upon prison offic ials to take reasonable measures " `to protect prisoners fr om violence at the hands of other prisoners.' " Farmer v. Brennan , 114 S. Ct. 1970, 1976 (1994) (quoting CortesQuinones v. Jimeniz-Nettleship , 842 F.2d 556, 558 (1st Cir. 1988)). While "[i]t is not . . . every injury suffe red by one prisoner at the hands of another that translates in to constitutional liability for prison officials respo nsible for a victim's safety," "[b]eing violently assaulted in p rison is simply not `part of the penalty that criminal offen ders pay for their offenses against society.' " Farmer , 114 S. Ct. at

61977 (quoting Rhodes v. Chapman , 45 U.S. 337, 345

(1981)). Accordingly, "[a] prison official's delibe rate
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 sufficient ly
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 stat e of mind
when it is claimed that the official has inflicted cruel and unusual punishment."). Specifically, the inmate mus t show that the official "knows of and disregards an exces sive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn th at 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. § 1 983, a plaintiff is required to produce sufficient evide nce of (1) a substantial risk of serious harm; (2) the defendant s' deliberate indifference to that risk; and (3) causa tion.

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 recor d that [Hamilton] faced a substantial risk of serious harm from any inmate during his temporary classification to t he general population [at Gander Hill], or that [Lewis ] had knowledge of such so as to justify characterizing h er June 24, 1992 classification decision as the infliction of punishment." Dist. ct. op. at 7.

In reaching this conclusion, the district court rel ied primarily on Lewis's affidavit in which she explain s her

7refusal to place Hamilton in protective custody des pite 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 th ere." She further commented that "[i]f valid evidence of a danger to plaintiff existed at [Gander Hill], the Committe e would have classified him appropriately." The district co urt
considered Lewis's affidavit conclusive in determin ing that
no material issues of fact existed for resolution a t trial. Our review of the record brings us to the opposite conc lusion.

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 subs tantial risk of serious harm. The MDT members, on June 18, 1992, considered Hamilton's history of violent clas hes throughout the Delaware prison system, and acknowle dged his statement that "protective custody concerns exi st throughout the state."1 The MDT members then conclu ded, unanimously, that Hamilton was in such danger as to justify isolating him from the general population i n protective custody. Because there is no indication in the
record that the MDT's recommendation was unwarrante d 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 faile d 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 reas oning 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 genera l population where he was assaulted, this fact was insufficient to sup port 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 clai m. . . ."). Accordingly, in this case, the question of who init iated the June 18, 1992 classification review will have no bearing on the question of Lewis's awareness of the risk posed to Hamilton.

8Yet, 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 delibera te indifference to his safety. Deliberate indifference can be shown when "a prison official knows of and disregar ds 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 prote ctive custody. Lewis never suggested that she was not in possession of the MDT recommendation or that the recommendation was baseless. Indeed, it could be ar gued that Lewis had good reason to believe that the MDT' s fears were well-founded since Lewis herself approved Hami lton for protective custody on two prior occasions. More over, since Lewis should be charged with knowledge of Hamilton's known cooperation with prison officials and the subsequent branding of Hamilton as a "snitch," appe llant's app. at 47a, a factfinder could infer that Lewis kn ew 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 o fficials were aware of risk posed to prisoner by asbestos pr ecluded summary judgment). The Farmer Court explained in hypothetical terms the type of circumstantial evide nce sufficient for a finding of actual knowledge on the part of a prison official:

9if an Eighth Amendment plaintiff presents evidence

showing that a substantial risk of inmate attacks w as `longstanding, pervasive, well-documented, or expre ssly noted by prison officials in the past,' and the circumstances suggest that the defendant-official b eing 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 f act to
find that the defendant-official had actual knowled ge 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 t he Farmer Court, does not appear to have been considered by t he district court. However, these facts constitute suf ficient circumstantial evidence upon which a factfinder cou ld
conclude that Lewis "must have known" of the risk t o Hamilton's safety. Id. See id. at 1981 ("[A] factfinder may conclude that a prison official knew of a substanti al risk from the very fact that the risk was obvious."). Ac cordingly, based on the circumstantial evidence offered by Ham ilton
which demonstrates the existence of an obvious risk

, Lewis's decision to consciously disregard that risk (memorialized by the CICC "no action" decision), an d Hamilton's resulting injuries which occurred less t han two months following the CICC's decision to take "no ac tion," we conclude that summary judgment was improper as t o Lewis.

B.

Moreover, the record indicates that the MDT defenda nts took no immediate action following its recommendati on to the CICC that Hamilton should be placed in protecti ve custody. It also took no action after that recommen dation was rejected. The district court found that Hamilto n's Eighth Amendment claim could not be maintained agai nst
the MDT defendants. It reasoned that because the MD T defendants were without authority to effectuate the ir own recommendation that Hamilton be placed in protectiv e custody, they could not be found to have deliberate ly

10disregarded serious risks to his safety. In other w ords, 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 agai nst
them.

The Farmer

Court specifically noted that"prison officials who actually knew of a substantial risk to inmate h ealth or safety may be found free from liability if they res ponded 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 s he 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 r easonably
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 safet y.' ") (quoting Hellig v. McKinney , 509 U.S. 25, 33 (1993)). Here, while it appears that the MDT defendants acted reas onably in following the internal prison procedures by recommending to the CICC that Hamilton be placed in protective custody, the reasonableness of their act ions following the rejection of that recommendation rema ins a question.

The MDT defendants stated in their affidavits that they "did everything they could" with respect to ensurin g Hamilton's safety when they recommended he be place d in protective custody. But the district court's refusa l to
consider whether the MDT defendants could have take n further action failed to give Hamilton the benefit of all reasonable inferences, to which he is entitled, as the nonmovant. Indeed, Hamilton's counter-argument, assert ed 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 p resented 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 judgme nt, non-movant must only show more than "some metaphysi cal

11doubt as to the material facts"); Big Apple BMW, In c. v.

BMW of North America , 974 F.2d 1358, 1363 (3d Cir. 1992) ("To raise a genuine issue of material fact [the] o pponent need not match, item for item, each piece of eviden ce 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 ca nnot credit the movant's version of events against the o pponent . . . ."); 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 st eps beyond the recommendation of protective custody cou ld be viewed by a factfinder as the sort of deliberate in difference to inmate safety that the Constitution forbids.

Accordingly, we will reverse the district court's g rant 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 cons idered
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 sho uld consider the merits of the plaintiff's claim, the p laintiff's ability to present his or her case, the difficulty of the legal issues, and the degree to which the case will requi re extensive factual investigation or turn on credibil ity
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 h is probable inability without such assistance to present the fa cts and legal issues to the court in a complex but arguably

12meritorious 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 conclud ing that Hamilton did not have a colorable claim; second, th e record indicates that Hamilton may be ill-equipped to repr esent 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 Ham ilton's request for the appointment of counsel. We will the refore
reverse on this issue and remand to the district co urt with instructions to appoint counsel for Hamilton. See T ucker v.
Randall , 948 F.2d 388, 391 (7th Cir. 1991) (appointment of counsel appropriate when plaintiff presented colora ble
claim of deliberate indifference to serious medical needs resulting in permanent deformities).

VI.

We do not believe that Hamilton's request for addit ional discovery and for leave to amend his complaint requ ire
extended discussion. The district court denied thes e requests on the ground that each was a futile attem pt to salvage Hamilton's action under 42 U.S.C. § 1983. A s we have explained above, the district court misconstru ed

Farmer , and Hamilton does have a colorable Eighth Amendment claim. We will, therefore, remand this is sue to the district court with instructions to permit Hami lton to pursue full and reasonable discovery as is consiste nt with
the Farmer

mandate relating to circumstantial evidence, as
described above. Because Hamilton's initial discove ry request involved an effort to obtain the names of t hose
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 unnecessa ry to reach Hamilton's contention that the district court improperly conve rted appellees' motion to dismiss pursuant to Rule 12(b)(6) to one of summ ary judgment.

131996) (courts should allow liberal amendment of pro se

complaints).

VII.

For the foregoing reasons, we will reverse the dist rict court's order of November 2, 1994, granting summary judgment to the MDT defendants. We will also revers e the district court's order of May 26, 1995, granting su mmary judgment to Lewis, and remand this case with instru ctions 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 i n the first instance, would remand the question for that court to exercis e its discretion, as required by Tabron v. Grace , 6 F.3d 147, 158 (3d Cir. 1993).

14