In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3064

RANDY P. O’BRIEN,

Plaintiff-Appellant,

v.

INDIANA DEPARTMENT OF CORRECTION, by and through its

commissioner EVELYN RIDLEY TURNER, and CRAIG A.

HANKS, Superintendent, in his individual capacity,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 03 C 18—David F. Hamilton, Judge.

____________

ARGUED APRIL 4, 2007—DECIDED JULY 26, 2007

____________

Before KANNE, WILLIAMS, and SYKES, Circuit Judges.

KANNE, Circuit Judge. Randy O’Brien has been a

prisoner in Indiana since 1996, having been convicted of

rape, sexual battery, and burglary. In 2001, he was

attacked and beaten by two other inmates. In 2003, he

brought suit under 42 U.S.C. § 1983, alleging that the

warden was deliberately indifferent to his safety in

violation of the Eighth Amendment. In 2005, he sought to

add additional defendants to his suit. That motion was
2 No. 06-3064

denied. The district court entered summary judgment in

favor of the defendants. He appeals the denial of the

motion to add parties and the entry of summary judgment.

For the reasons set forth below, we affirm.

I. HISTORY

Before his conviction, O’Brien was a corrections officer at

the Indiana Youth Center. Almost immediately upon his

arrival at the Wabash Valley Correctional Facility in 1996

he was recognized by other inmates as being a former

guard. Realizing that his former life was likely to make

him a tempting target for other inmates, he requested that

the prison take him into protective custody. He was

removed from the general prison population and placed

into the facility’s “D Segregation” unit while the prison

considered his request. About three weeks later, and based

on an evaluation by a case worker, O’Brien was moved into

the left wing of the “D Housing Unit.” Although not

segregated from the entire prison population, the prison

tended to place “at-risk” prisoners such as O’Brien in the

left wing of the D Housing Unit. The left wing also included some members of the general prison population—

that is, non “at-risk” prisoners. O’Brien did not renew or

repeat his request for a more segregated arrangement.

Four and one-half years passed. On January 14, 2001,

two other inmates in the D Housing Unit attacked O’Brien

and, among his other injuries, he lost his left eye. O’Brien

hired Indianapolis attorney C. Bruce Davidson, Jr. In

January 2003, seven days before the statute of limitations

would have run, he filed a complaint alleging that the

Indiana Department of Correction and the warden of

Wabash Valley Correctional Facility had violated O’Brien’s

right under the Eighth Amendment to be free from cruel

and unusual punishment. See U.S. CONST. amend VIII.
No. 06-3064 3

The district court directed O’Brien to support the legal

sufficiency of his complaint. On April 8, 2003, attorney

Davidson filed a motion seeking an extra two days to

respond to the court’s order. For the purposes of this case

Davidson was never heard from again. The court granted

the two-day extension, and then granted three additional

extensions sua sponte, apparently in the hopes that

Davidson would reply. Having heard nothing from

Davidson, the district court eventually dismissed the

complaint with prejudice.

In November 2003, another Indianapolis attorney, who

happened to also be Davidson’s landlord, noticed that

Davidson was not diligently contacting his clients and was

not paying his rent in a timely manner. He left a note for

Davidson to contact him. Davidson did not immediately

reply. We now know that Davidson was busy robbing a

bank in Cincinnati that November—the first of roughly

twenty-five bank robberies that attorney Davidson would

commit over the next two years.

By January 2004, it became clear that Davidson had

abandoned his practice of law. An attorney was appointed

by the Indiana Supreme Court as a Reviewing Master and

took possession of Davidson’s files. That attorney noticed

that O’Brien’s case had been dismissed, and he contacted

O’Brien’s mother, who then notified O’Brien. In March

2004, O’Brien, through new counsel, moved the district

court for relief from judgment due to his previous attorney’s abandonment of his practice. See FED. R. CIV. P. 60.

The court granted the motion, and O’Brien filed an

amended complaint in June 2004.

In February 2005, O’Brien filed a motion to add new

parties to the complaint. The defendants opposed the

motion, and the district court denied the motion. In June

2006, the district court entered summary judgment in

favor of the defendants. O’Brien now appeals the denial of
4 No. 06-3064

his motion to add new defendants and the entry of summary judgment in favor of the defendants.

II. ANALYSIS

A. The Motion to Add Parties

Rule 15(a) requires that leave to amend a pleading “shall

be freely given when justice so requires.” FED. R. CIV. P.

15(a). But there is a catch: O’Brien sought to add parties

to the complaint more than two years after the statute of

limitations had run against those persons. O’Brien must

also satisfy Rule 15(c), which allows the amended pleading

to relate back to the date of the original pleading under

certain limited conditions. The district court’s decision to

deny a motion to amend a pleading is reviewed for abuse

of discretion. Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.

2005).

The text of Rule 15(c) requires that the newly added

parties must have had notice of the action within the time

period for service of process, they must have known that

“but for a mistake concerning the identity of the proper

party, the action would have been brought against” them,

and the amended pleading must concern the same conduct,

transaction, or occurrence. FED. R. CIV. P. 15(c)(2)-(3).

O’Brien’s Motion to Add Parties addressed the question of

whether the alleged conduct arose out of the same transaction or occurrence. R. 49 ¶ 23. But it did not address the

question of whether the new parties were on notice of the

original suit or had knowledge that they were the rightful

defendants. Instead, O’Brien’s argument relied heavily on

the admittedly unseemly level of neglect demonstrated by

his first attorney. The defendants did devote some portion

of their pleading to the question of whether an error on the

part of the plaintiff should allow an unsuspecting defendant to be added long after the statute of limitations had

passed. R. 50 ¶ 8.
No. 06-3064 5

In Delgado-Brunet v. Clark, 93 F.3d 339, 344 (7th Cir.

1996), we addressed the question of whether a prisoner’s

civil suit may be amended after the statute of limitations

had run in order to name new individual defendants who

were not on notice of the original complaint. Although

Delgado-Brunet was a Bivens action, the opinion made

clear that the analysis was applicable to claims arising

under § 1983 as well. Id. Rule 15(c) and Delgado-Brunet

clearly instructed the district court that the amended

complaint should not have related back. The appellant

repeats here many of the same arguments that he made

below, focusing on the neglect of O’Brien’s original attorney. But the question for us is not whether we would make

the same decision that the district court did. We must be

convinced that the decision by the district court was

fundamentally wrong. Chavez v. Ill. State Police, 251 F.3d

612, 628 (7th Cir. 2001). 

We see no reason why the order denying the motion was

an abuse of discretion. We are not faced with the question

of whether it would have been an abuse of discretion if the

district court had allowed new parties to be named at the

time that the suit was revived in the spring of 2004. We

are well aware of the unusual level of professional incompetence demonstrated by Davidson in his handling of this

case in 2003. Whether it would have been within the range

of the district court’s discretion to allow those new parties

to be added once O’Brien’s case was being handled by more

diligent lawyers is a question for another case. We hold

simply that in this case, where O’Brien escaped the results

of his lawyer’s incompetence via a Rule 60 motion in June

2004 and was given a second bite at the apple, the district

court did not abuse its discretion in denying him a third

bite at the apple after an additional nine months had

passed.
6 No. 06-3064

B. Summary Judgment

O’Brien does not address the district court’s dismissal of

his claim for injunctive relief from the Department of

Correction. We turn, then, to the claims against the named

defendant, Craig Hanks. The Eighth Amendment provides

that “cruel and unusual punishments [shall not be] inflicted.” U.S. CONST. amend VIII. “A prison official’s

‘deliberate indifference’ to a substantial risk of serious

harm to an inmate violates the Eighth Amendment.”

Farmer v. Brennan, 511 U.S. 825, 828 (1994). Liability

exists “only if [the defendant] knows that inmates face a

substantial risk of serious harm and disregards that risk

by failing to take reasonable measures to abate it.” Id. at

847.

The parties here seem to agree that the first requirement, that Hanks had a subjective knowledge that O’Brien

faced a substantial risk of serious harm, is met. The only

question on appeal is whether he failed to take reasonable

measures to abate the harm. Because the case comes to us

after entry of summary judgment in favor of the defendant,

we review the judgment de novo and view all facts and

draw all inferences in the light most favorable to the

plaintiff. Vining-El v. Long, 482 F.3d 923, 924 (7th Cir.

2007). Summary judgment is appropriate if the “pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(c).

Hanks argues that the pleadings and evidence do not

show any genuine issue of material fact, and that his

actions do not rise to the level of deliberate indifference as

a matter of law. We agree. Farmer does not require that

the harm ultimately be averted, as long as the defendant

reasonably responded to whatever known risks there were.
No. 06-3064 7

511 U.S. at 847. This makes sense: the question of whether

a defendant was deliberately indifferent must logically

depend on what information was available to the defendant at the time that a decision was made. Based on the

evidence in the record, we know that almost immediately

upon entering Wabash Valley, O’Brien was taken into

segregation so that the danger to him could be evaluated.

We also know that the case worker considered whether

there were specific threats directed against O’Brien, or

whether this was a generalized danger that his former life

would pose to him. Finding nothing to suggest that O’Brien

was in any more danger than other former police and

corrections officers, the prison placed him where other atrisk inmates were placed. The evidence indicates that this

course of action had been followed repeatedly in the past,

and there is nothing in the record to show that the prison

should have had any reason to think it would not be

successful in this case.

O’Brien makes a colorful argument, analogizing the

prison’s course of action to jumping out of a plane without

a parachute and being lucky enough to survive the fall.

The argument proceeds that O’Brien’s survival for four and

one-half years by luck or by skill should not be used to

justify the prison’s decision to throw him out the door of

the plane in the first place. But we think that he misses

the point here: O’Brien was not the first former officer

placed in D Housing. The prison had been placing people

like him in exactly these circumstances long before he

arrived on the scene and there is nothing in the record to

indicate that any member of the prison staff had a reason

to think it would not continue to provide relative safety for

those inmates. By the time O’Brien came along, “jumping

out of planes without a parachute” had become common

practice and he, as the plaintiff, provides no evidence that

anybody had ever been harmed by it.

O’Brien argues that the question of whether the warden

took reasonable steps is a genuine issue of material fact
8 No. 06-3064

that ought to at least be presented to a jury. Our circuit

precedent is to the contrary. Lewis v. Richards, 107 F.3d

549, 553 (7th Cir. 1997). In Lewis, a prisoner came to

believe, after being assaulted by members of a prison gang,

that he was likely being targeted for further assaults by

the same gang. Id. at 551-52. He requested protective

custody and was granted it for a period of time, but he was

later transferred back into the general prison population,

where he was assaulted again. Id. We affirmed entry of

summary judgment in favor of the prison staff, noting that

if “the defendants in this case simply refused to do anything, [the] case might survive summary judgment.” Id. at

553. Having transferred the prisoner to a different portion

of the prison, thus denying him protective custody, the

“subsequent events proved at best that the defendants

exercised poor judgment in simply choosing to send Lewis

to a different dormitory. Exercising poor judgment,

however, falls short of meeting the standard of consciously

disregarding a known risk to his safety.” Id. at 554 (citing

McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991)).

The facts here are remarkably similar. Faced with

O’Brien’s status as a former prison guard, the staff at

Wabash Valley initially brought him into segregation for

his safety. Having considered the nature of the threat

against him and the availability of placing O’Brien among

the at-risk population in D Housing, the prison chose to

place him with the other former police officers, guards, and

prosecutors in D Housing. As in Lewis, this decision does

not amount to an unreasonable response to a known risk.

III. CONCLUSION

For the forgoing reasons, the judgment of the district

court is AFFIRMED.
No. 06-3064 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-26-07