# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 11, 2014 *

Decided April 14, 2014

Before

KENNETH F. RIPPLE, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 13

‐ 1670

JEREMY M. WRIGHT,

Plaintiff

‐ Appellant,

v.

JACKIE MILLER, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 11

‐ cv

‐ 00225

‐ MJR

‐ SCW

Michael J. Reagan,

Judge

.

O R D E R

Jeremy Wright, an inmate at Pontiac Correctional Center, challenges the district

court’s decision to grant summary judgment in his § 1983 suit. He alleges that the

prison officials were deliberately indifferent to his safety when they denied his request

for protective custody. He seeks punitive damages and an injunction to place him

permanently in protective custody. The district court concluded that it could not issue NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the parties’ briefs and the record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.

See F ED

. R. A PP

. P. 34(a)(2)(C).No. 13

‐ 1670 Page 2

an injunction because Wright had not established a continuing constitutional violation.

It also ruled that the defendants had not been deliberately indifferent to a substantial

risk of harm. We agree with the district court that it could not order an injunction and

that the top

‐ level administrators are not liable. But we remand because of a genuine fact

dispute over whether one defendant intentionally exposed Wright to likely and severe

violence.

In reviewing the district court’s ruling, we construe the record and draw

reasonable inferences in Wright’s favor. See Andrews v. CBOCS W., Inc.

, 743 F.3d 230, 232

(7th Cir. 2014). Wright has been incarcerated since 1996. In 1999, while he was at

Stateville Correctional Center, prison officials placed him in protective custody because

he had renounced his membership in the Latin Kings gang and the gang might target

him for retaliation. Officials transferred Wright three years later to Pontiac, a prison

exclusively for inmates in protective custody. He remained in protective

‐ custody status

there for six years, until officials assigned him to the segregation unit for misconduct.

Upon his release from the segregation unit seven months later, Wright asked to

return to protective custody at Pontiac. He remained at Pontiac, and thus in protective

custody, while his request was considered. Wright offered Pontiac two reasons for his

request: his sexual orientation and status as an ex

‐ Latin King. Even though ten years

earlier Stateville officials had first put Wright in protective custody because he was an

ex

‐ Kings member, Pontiac staff could not verify his ex

‐ member status. So the warden at

Pontiac denied Wright’s request, and the Administrative Review Board affirmed the

warden’s decision. Because Pontiac is exclusively for protective

‐ custody inmates, once

the Board denied Wright’s appeal, prison authorities transferred him to Menard

Correctional Center in February 2011.

During his first four days at Menard, Wright lived in the general population.

After Latin King members threatened him, he asked several officers (none is a

defendant here) to place him in protective custody. When they refused, Wright filed an

emergency grievance. Menard officials removed him from the general population

pending the resolution of his grievance.

An internal

‐ affairs officer (also not a defendant) investigated the grievance and

recommended that the prison return Wright to the general population. The officer

reasoned that the threats Wright received did not warrant protective custody because

he could not name the Latin Kings members who had threatened him. The officer alsoNo. 13

‐ 1670 Page 3

speculated that Wright was seeking protective custody only to return to Pontiac to

continue a relationship with another Pontiac inmate.

Wright sought and received a hearing with defendant David Hennrich, a

casework supervisor, to review his request for protective custody. Hennrich explained

that he recommended inmates for protective custody only if internal affairs made the

same recommendation. He also thought that Wright did not require protective custody

because, with his stature and size, he could protect himself. Wright replied that he

feared attack because he was both a homosexual and a former Latin Kings member.

Upon hearing this information, Hennrich agreed, warning that “The Kings ain’t no

sissies, they’ll stab your ass up dude for being homosexual.” After predicting that the

Latin Kings would stab him for being a homosexual, Hennrich nonetheless

recommended that the warden return Wright to the general population.

Relying on Hennrich’s recommendation and that of the internal–affairs officer,

Menard’s warden saw no verifiable threat to Wright’s safety and denied his request for

protective custody. Wright appealed to the Administrative Review Board. The chair of

the Board upheld the warden’s decision, and the director of the Illinois Department of

Corrections concurred. This process lasted about a month, after which prison officials

placed Wright in the general population, where he feared an imminent attack.

Four hours after officials returned him to the general population, inmates indeed

threatened Wright. He again requested protective custody and was immediately

removed from the general population. This time, though, he was able to name the

inmates who had threatened him, and officials approved his request. Wright was

transferred to Stateville and later to Pontiac, where he is currently incarcerated.

Wright has sued Hennrich, alleging that he violated the Eighth Amendment by

recommending against granting Wright’s request for protective custody even though he

knew that Wright would be stabbed. (Wright initially named “Counselor Hendricks,”

but the parties agree that the defendant is David Hennrich.) Also named in this suit are

Menard’s warden, the director of the Illinois Department of Corrections, and the chair

of the Administrative Review Board. Wright seeks punitive damages and an injunction

against removal from protective custody.

Wright’s complaint survived screening under 28 U.S.C. § 1915A, and the district

court granted summary judgment to all defendants. It denied Wright’s request for an

injunction because he was in protective custody, so he could show no ongoing violation.No. 13

‐ 1670 Page 4

The court also ruled that his claims for punitive damages failed. The claims against the

Board member and the director of the Department failed, the court reasoned, because

they merely reviewed the decision on an administrative grievance. See George v. Smith

,

507 F.3d 605, 609–10 (7th Cir. 2007). And Menard’s warden was not liable because he

permissibly relied on a subordinate’s recommendation. See Burks v. Raemisch

, 555 F.3d

592, 595–96 (7th Cir. 2009). Finally, the court addressed the claim against Hennrich. It

ruled that Hennrich had relied on the internal

‐ affairs report and Wright’s height and

stature and therefore was not deliberately indifferent. The court dismissed Hennrich’s

prediction that, “The Kings ain’t no sissies, they’ll stab your ass up dude for being

homosexual,” as insufficient to warrant a trial. Wright asked for leave to file a motion

under Federal Rule of Civil Procedure 59, but appealed two days later.

Several of Wright’s arguments clearly lack merit and can be resolved with little

discussion. Wright first contends that the district court should have ruled on his request

to file a Rule 59 motion. But when Wright appealed two days after filing his request, he

divested the district court of jurisdiction. See United States v. Woodard

, 744 F.3d 488, 495

(7th Cir. 2014) ; Grube v. Lau Indus., Inc.

, 257 F.3d 723, 731 (7th Cir. 2001). He next

challenges the district court’s ruling that he could not receive an injunction. A court

may enjoin state officials only where there is an impending or ongoing violation of

federal law. See Kress v. CCA of Tenn., LLC

, 694 F.3d 890, 894 (7th Cir. 2012); Al

‐ Alamin v.

Gramley

, 926 F.2d 680, 685 (7th Cir. 1991); Toney v. Burris

, 829 F.2d 622, 626 (7th Cir.

1987). Here, prison officials have approved Wright’s request for protective custody,

thereby halting any federal violation. See Farmer v. Brennan

, 511 U.S. 825, 845–46 (1994);

Kress

, 694 F.3d at 893–94. Although Wright’s protective custody is periodically

reviewed, see I LL

. A DMIN

. C ODE tit. 20, § 501.330(a), prison officials have not threatened

to return him to the general population. And a speculative fear of injury is not a ground

for an injunction. See City of Los Angeles v. Lyons

, 461 U.S. 95, 104

‐ 05 (1983). Next, Wright

contests the dismissal of the top

‐ level administrators—the warden, the Board chair, and

the director of the Department of Corrections. But they cannot be vicariously liable for

their subordinate’s actions. See Burks

, 555 F.3d at 595–96; Garvin v. Armstrong

, 236 F.3d

896, 898–99 (7th Cir. 2001). Likewise, they cannot be liable for relying, as they

reasonably did, on the recommendations of those who had concluded that there was no

verifiable threat to Wright’s safety. See George

, 507 F.3d at 609–10.

That brings us to the claim against Hennrich. To warrant a trial, the record must

allow a rational jury to find that Hennrich knew that Wright faced a significant risk of

harm from a “particular vulnerability” and exposed him to that risk anyway. Brown v.

Budz

, 398 F.3d 904, 915 (7th Cir. 2005). The evidence allows such a finding: Wright toldNo. 13

‐ 1670 Page 5

Hennrich that Wright is a homosexual former member of the Latin Kings. After hearing

this, Hennrich knew that, despite Wright’s size and the opinion of the internal

‐ affairs

officer, “they’ll stab up [his] ass.” Even though he knew that the Kings would stab

Wright after he returned to the general population, Hennrich recommended that the

warden place him there anyway. A trier of fact could conclude, therefore, that he

unreasonably refused to use his knowledge of Wright’s near

‐ certain stabbing to depart

from his rigid practice of seconding the opinion of an internal

‐ affairs officer. True,

before others removed Wright to safety, Wright was not attacked in the four hours that

he remained in the general population. But as far as Hennrich knew and expected, the

warden would accept Hennrich’s recommendation (as he did) and return Wright to the

general population indefinitely, where he would live in fear and get stabbed. Even

without an actual injury, the mere probability of the harm to which Hennrich exposed

Wright can be sufficient to create liability: The “heightened risk of future injury” a

prison official intentionally or with reckless indifference inflicts on an inmate “is itself

actionable.” Budd v. Motley

, 711 F.3d 840, 843 (7th Cir. 2013); see also Thomas v. Illinois

,

697 F.3d 612, 614–16 (7th Cir. 2012) (explaining that “hazard, or probabilistic harm”

could allow recovery); Irving v. Dormire, 519 F.3d 441, 449 (8th Cir. 2008) (concluding

that guard’s alleged attempts to induce other inmates to assault plaintiff prisoner

“posed a substantial risk of serious harm to [the prisoner’s] future health”).

On similar records, we have required factfinders to decide whether to credit the

evidence that prison officials endangered inmates by recklessly exposing them to an

attack. See Weiss v. Cooley

, 230 F.3d 1027, 1030, 1032 (7th Cir. 2000) (reversing summary

judgment and remanding for trial where evidence suggested that prison official knew of

substantial risk that an inmate would be attacked but said, “you have to face the music

sometime”); Walsh v. Mellas

, 837 F.2d 789, 798–99 (7th Cir. 1988) (ruling that evidence

supported claim that prison officials violated Eighth Amendment when they placed

inmate in cell with gang leader despite knowing of gang’s threats against inmate).

We end by noting that, because Wright suffered no physical injury, Hennrich’s

potential liability is limited. Under the Prison Litigation Reform Act, absent an

accompanying physical injury, a court may not award compensatory damages for non

‐ physical harm, such as fear of attack. See 42 U.S.C. § 1997e(e); Thomas

, 697 F.3d at 614.

Wright may seek only nominal or punitive damages. See Calhoun v. DeTella

, 319 F.3d

936, 942 (7th Cir. 2003). Moreover, to award punitive damages, a jury must find that

Hennrich was “motivated by evil motive or intent” or acted with “reckless or callous

indifference” to Wright’s constitutional rights. Smith v. Wade

, 461 U.S. 30, 56 (1983);

see also Calhoun

, 319 F.3d at 942. This standard mirrors the standard for Wright’sNo. 13

‐ 1670 Page 6

underlying Eighth Amendment claim, which also requires a trier of fact to find that

Hennrich acted with deliberate indifference to Wright’s safety. See Woodward v. Corr.

Med. Servs. of Ill., Inc.

, 368 F.3d 917, 930 (7th Cir. 2004) (noting that culpability required

for § 1983 liability is the same as the punitive damage standard); Walsh

, 837 F.2d at

801–02 (same).

Accordingly, we AFFIRM the district court’s decision in all respects except that

we REVERSE and REMAND for further proceedings on Wright’s claim against

defendant Hennrich.