# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 17, 2022 *

Decided October 18, 2022

Before

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 21

‐ 3152

J OHN A. HAWKINS

‐ EL,

Plaintiff

‐ Appellant

,

v

.

WILLIAM HYATTE, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Northern District of

Indiana, South Bend Division.

No. 3:21

‐ CV

‐ 527

‐ JD

‐ MGG

J on E. DeGuilio,

Chief Judge

.

O R D E R

John A. Hawkins

‐ El, an Indiana prisoner, sued prison officials and a National

Guard member for violating his Eighth Amendment rights by failing to protect him

from one or more assailants. See 42 U.S.C. § 1983. The district court dismissed the

claims after giving him a chance to amend them, ruling that Hawki ns

‐ El did not allege

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with F ED

. R. A PP

. P. 32.1No. 21

‐ 3152 Page 2

that the defendants knew he was at serious risk of attack. For the same reason, we

affirm.

We take Hawkins

‐ El’s factual allegations from the operative complaint as true

and draw all reasonable inferences in his favor. Turley v. Rednour

, 729 F.3d 645, 649

(7th Cir. 2013). His prison, the Miami Correctional Faci lity, had a staff shortage that

prompted the warden to call in the National Guard for support. One afternoon, a shift

supervisor removed a staff officer from Hawkins

‐ El’s housing unit, leaving no other

staff officers to watch the unit. While the unit lacked a staff officer, a National Guard

memb er buzzed prisoners into Hawkins

‐ El’s unit, and the unit entered lockdown. The

National Guard member did not ask the prisoners to identify themselves when they

entered. One or more of the entering prisoners stabbed Hawkins

‐ El multiple times.

Hawkins

‐ El sued the warden and “John Doe” officers of the priso n and National

Guard for violating his Eighth Amendment rights by failing to protect him from the

attack. Liberally construing his complaint, we presume that the “John Does” refer to all

officers Hawkins

‐ El mentioned: the shift supervisor who ordered the staff officer to

leave the unit, the staf f officer himself, and the National Guard member who controlled

the unit’s door. The district court dismissed the suit. It reasoned that Hawkins

‐ El did

not state an Eighth Amendment claim because he did not allege that any defendant was

aware of a threat to his safety. Hawkins

‐ El appeals the dismissal, limiting his challenge

to claims against the defendants in their pe rsonal capacities.

To plead a claim that prison officials violated his Eighth Amendment rights by

failing to protect him from an attack, Hawkins

‐ El must allege facts suggesting that the

officials were deliberately indifferent to his s afety. Farmer v. Brennan

, 511 U.S. 825, 834,

839–40 (1994). But because “prisons are dangerous places” and guards lack “control

over crowding and other systemic circumstances,” Riccardo v. Rausch

, 375 F.3d 521, 525

(7th Cir. 2004), “ failure to provide protection constitutes an Eighth Amendment

violation only if deliberate indifference by prison officials to a pris oner’s welfare

‘effectively condones the attack by allowing it to happen.’

. . . [This means that the

plaintiff] had to allege facts sufficient to show ‘that the defendants had actual

knowledge of an impending harm easily preventable, so that a conscious, culpable

refusal to prevent the harm can be inferred from the defendant ʹ s failure to prevent

it.’“ Santiago v. Walls

, 599 F.3d 749, 756 (7th Cir. 2010) (q uoting Lewis v. Richards

,

107 F.3d 549, 553 (7th Cir. 1997))

. But despite a chance to amend his claim, Hawkins

‐ El

never alleged that any officer ignored a kno wn, preventable threat that was unique to

him or shared by a group with which he was affiliated.No. 21

‐ 3152 Page 3

We begin with the National Guard member monitoring the door to Hawkins

‐ El’s

unit. Hawkins

‐ El does not state whether this guard was acting under state law,

see 42 U.S.C. § 1983, or federal law, see Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics

, 403 U.S. 388 (1971). But this claim fails either way because the guard

did not v iolate Hawkins

‐ El’s Eighth Amendment rights. Hawkins

‐ El alleges only that

the guard allowed people into the unit without asking them to identify themselves. This

omission may have denied the guard knowledge of the names of Hawkins

‐ El’s

attackers at the time of the attack. But the omission did not give the guard knowledge

that any of the entering prisoners were going to attack anyone. Thus the guard cannot

be liable fo r deliberate indifference to Hawkins

‐ El’s safety.

We turn next to the w arden. Hawkins

‐ El argues that the warden knew that the

prison had a staff shortage, rendering it unusually dangerous. But this is insufficient

because Hawkins

‐ El does not contend that the warden “gratuitously” created that

shortage. See Riccardo

, 375 F.3d at 525. To the contrary, he alleges that the warden tried

to remedy the problem by calling in the Nati onal Guard. This allegation defeats his

claim that the warden disregarded the safety risks to him. See Farmer

, 511 U.S. at 844.

Finally, Hawkins

‐ El also did not plead an Eighth Amendment claim against the

unit’s shift supervisor (who removed the staff offic er from the unit) or the staff officer

who left that unit. Neither the removal of the staff officer, nor that officer’s obedience to

the removal order, gave either one knowledge of an impending attack. See Santiago

,

599 F.3d at 756. Further, three other features of Hawkins

‐ El’s complaint undermine an

inference that they de liberately ignored his safety: The unit went on lockdown until an

officer could be stationed there; a National Guard member was stationed at the door to

the unit; and Hawkins

‐ El does not contend that the supervisor or staff officer knew that

the guard did not ask the prisoners their na mes. We thus cannot infer either defendant

knew that moving the staff officer from the unit would imperil Hawkins

‐ El’s safety.

AFFIRMED