1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Hamilton v. Leavy" (1997). 1997 Decisions. Paper 143.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/143
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 

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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 

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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 CortesQuinones 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 nonmovant. 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). 

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