# Unit ed Sta tes Cou rt of Appeals
For the Seventh Circui t Chic ago, I lli nois 60604

Submi tte d July 17, 2014 * Deci ded July 17, 2014

Before

RICHARD A. POS NER, Circ uit Judge

MICHAEL S . KANNE, Circ uit Judge
JOHN DANIEL TIND ER, Circ uit Judge

No. 13-3156

SO NNIEL R. GIDARIS INGH, Plaintiff–Appell ant,

v.

WILLIAM POLLARD, et al., Defen dants–Appellees

. Appeal from the United Stat es Di stric t Court for t he Eastern Di stric t of Wi scons i n.

No. 12-CV-455

C.N. Clever t, Jr., Judge

.
O R D E R

Whi le So nni el Gi daris i ngh was i mpri soned at Green Bay Co rr ecti onal Insti tution, an inmate affi li ated wi th the Vic e Lor ds gang thre atened to beat hi m. Gi daris i ngh—who
was s erv i ng a li fe sentence f or shooting two Vi ce Lords members—report ed the thr eat to a superv i sory pris on guard and asked for help. The guard never r epli ed to t he request, and about 23 hours later , the in mate att acked Gi daris i ngh. Gi daris i ngh NON PRECEDENTIAL DISPOSITION To be ci ted only i n acc or dance w i th Fed. R. App. P. 32.1

After exami ning the briefs and the recor d, we have conclu ded that o ral * arg ument i s unnecess ary . Thus the appeal i s submi tte d on the briefs and the recor d. See F E D

. R. A P P

. P. 34(a)( 2)(C).No. 13-3156 Page 2

contends in thi s ci vil- rights su i t thatthe guar d deli berately i gnor ed a known, sub stanti al danger and ther eby violated the Eighth Amendmen t. The di stric t court gr anted summ ary judgment t o the pr i son guard on t hi s cl ai m, bu t we conclu de that a reasonable jur y could find that the pr i son guard was aw are o f, and deli berately di sregar ded, a seri ous ri sk of i njury to Gidari singh. We agr ee, however , wi th the dis tr i ct court’s gr ant of summ ary judgment t o the defendants on Gi daris i ngh’s other clai ms.

Becaus e Gi daris i ngh i s the non-movi ng part y, we set fort h the facts and draw reasonable i nferences in hi s favor. See S purli ng v. C & M Fine Pack, Inc. , 739 F.3d 1055, 1060 (7th Ci r. 2014). Gi daris i ngh was c onvicted in 1997 of homi ci de and attempted homi ci de for shoot i ng two Vic e Lor ds gang members. He w as incarcerated atGreen Bay Cor rectional Insti tution wh en, on Octo ber 28, 2007, in mate Bradfor d Lewi s (whose cell was d own the hall from Gi daris i ngh’s) threatened Gid aris i ngh. Lewi s warned Gi daris i ngh that he and hi s “gang brot hers” would “beat Gi daris i ngh’s ass for k i lling two of t hei r g ang brot hers.” That evenin g, as Gi daris i ngh wai ted inline for his medi cati on, Lewi s repeated his threat . After Gi daris i ngh responded that he didn’t know what Lewi s was talking about, Lewi s sp at inhi s fac e.

Gi daris i ngh ret urned to hiscell and c ompleted a for m to seek help fro m the pris on author i ties . He sent the note t o Mar k Lesatz, the pr i son’s sec ond-shi ft command er o n duty dai ly fro m 2 p.m. to 10 p.m. The pri son has n ot r etained the note, so i t is lost to hi stor y. But Gi daris i ngh tells us that in the note he r ecounted how Lewi s had vowed to beat hi m for shoot i ng Lewi s’s “gang brothers” and that Lewi s later punc tuated the threatby spi tting in Gi daris ingh’s fac e. He pleaded for “securi ty t o i nterv ene and prot ect” hi m. He gave t he note t o a guar d who pi cked up the mai l at 9:30 p.m., a half-hour before Lesatz’s shi ft ended.
The next day Gid aris i ngh di d not hear back from Lesatz or any ot her guar ds about hi s request for pr ote cti on, and around 8:00 p.m. Lewi s fu lfi lled hi s threat. When Gi daris i ngh left hi s cellto pick up h i s medi cati on, Lewi s approached hi m, “banging hi s right fi st i n hi s left open palm.” Lew i s then pun ched G i daris ingh several t i mes in the face and head. After Gidari singh swung back in defens e, two o ther inmates join ed the fray. Guards or dered the inmates to stop fighting, but the brawl conti nued. Les atz was among the g uards wh o r esponded to t he fi ght. (Gi daris i ngh swears that Lesatz later admi tte d that, befor e the att ack, he had recei ved t he note aler tin g hi m to Lewi s’s threat; Lesatz atte sts that he “does not r ecall recei ving any commu ni cati on from Gi daris i ngh relat ed to concerns for his personal safety.”) During the brawl, Gi daris i ngh’s head hi t guard Chad Prin cl’s f ace. By the time guards broke up the fi ght, Gid aris i ngh wasNo. 13-3156 Page 3

bleeding pro fus ely fro m hi s eyes, nose, and li ps. Gu ards shac kled Gi daris i ngh and escorted himto t he pris on’s health-care uni t for medi cal treat ment.

So on after the fi ght, pr i son offi ci als ini tiated di sci plinary pr oceedings agai nst Gi daris i ngh, and after a hearing, found hi m gui lty. I n a conduc t r epor t, the autho riti es charged Gi daris i ngh wi th two o ffens es. The fi rst charge , for batt ery , alleged thathe had head-bu tte d Pri ncl in the face, injuring Princl’s nose. See W I S

. A D MI N

. C OD E DOC § 303.12(1). G i daris i ngh also faced a charge o f di sobeyi ng or ders for cont inuing to fi ght after g uards had ordere d hi m to sto p. See id . § 303.24. Before t he di sci plinary hear i ng, Gi daris i ngh sub mi tte d a 12-page statement. In it, he explai ned he had ac ci dentally “bounce[ d] into someone with [ hi s] f ace” and repeatedly apo logized “to the g uard that got hurt.” Gi daris i ngh also suggested that, during the commotion of the fi ght, he could not hear the guar ds order i ng hi m to sto p fi ghting. After lis tenin g to Gi daris i ngh’s oral testim ony, t he hearin g offi cer found Gi daris i ngh gui lty o f both offenses and sentenc ed hi m to 360 days’ dis ci plinary segr egat i on. He explain ed that he had consi dered Gi daris i ngh’s statements, but found the author of the conduct repo rtmore cre dible. The offi cer di d not mention a vi deo r ecording of the fi ght t hat he had view ed outsi de of Gi daris i ngh’s presence. Gi daris i ngh appealed the ruli ng thr ough the admini strat i ve appeals process, contendi ng that he was deni ed due process b ecaus e, among ot her reasons, he di d not have the chanc e to rev i ew the video, but he lost hi s appeal.

Pri son offi ci als later asked state prosecutor s to charge Gidari singh wi th crim i nal batter y based on the head-bu tt. See W I S

. S TAT . § 940.20(1). At some poi nt after the i nci dent, Lesatz “i nadvert ently fail ed” to sav e the v i deo r ecording to a dis k, and for t hat reason Gi daris i ngh moved t o dis mi ss the c rim i nal ch arg e. Though he di d not dis pute that his “head made c ontact wi th [] Princl’s face,” he argued that the cas e should b e di smi ssed b ecaus e pris on offi ci als di d not pr eserve a possi bly exculpator y v i deo. The state court agr eed and di smi ssed the c ase.

Gi daris i ngh fi led thi s su i t, r ai sing sever al clai ms u nder 42 U.S .C. § 1983. He fi rst asserts that Lesatz had fai led to pr ote ct hi m from Lewi s’s attack. Second, he contends that, by no t lett i ng hi m see and l ater losing the v i deo, prison offi ci als vi olated hisdueprocess ri ghts. Thi rd, he clai ms that pris on offi ci als un consti tutionally di sci plined hi m on two o ther o ccas i ons, retaliated again st hi m, and m ali ci ously prosecuted hi m wi th the cri minal ch arg e for head-buttin g.

After di scovery on these clai ms, the defend ants moved for sum mary j udgment, and the di stric t courtgr anted the mot i on. First, the courtexplain ed that no r easonableNo. 13-3156 Page 4

jury could c onclude that Lesatz was d eliberately i ndi fferent for fai ling to respond to Gi daris i ngh’s note wi thi n 23 hours. Second, the courtrej ected the due-process c lai m on the gr ound that any wro ngful c onduct was“random and unauthorized” an d could b e adequately r edressed thro ugh state r emedi es. Fi nally, the courtconclu ded that Gi daris i ngh di d not pr esent any evidenc e supporting hi s other claim s.

Gi daris i ngh fi rst ar gues on appeal that the dis tr i ct court should not have gr anted
sum mary j udgment on hi s fai lure-to-pro tect clai m. Under the Eighth Amendm ent, pris on offi ci als have a duty “to prot ect pris oners fro m vi olence at the hands of other pris oners.” Farmer v. Bren nan , 511 U.S. 825, 833 (1994) (internal quot ation omi tte d); Brown v. Budz , 398 F.3d 904, 909 (7th Cir. 2005). An inmate can prevail on a c lai m that a pris on offi ci al fai led to pr ote ct hi m i f the offi ci al showed “deli berate indi fference”; that i s, that the defendant was s ubjecti vely aware of and di sregar ded a “sub stanti al ris k of seri ous harm” to t he inmate. Farmer, 511 U.S. at 837; Dale v. Posto n , 548 F.3d 563, 569 (7th Ci r. 2008). To make a g uard subjectively aware o f a seri ous ri sk of att ack, the in mate
mus t communi cate a speci fi c and c redib le danger. Compare Santiago v. W alls , 599 F.3d 749, 758–59 (7th Ci r. 2010); Santiago v. Lane, 894 F.2d 218, 220, 223–24 (7th Cir. 1990); Young v. S elk

, 508 F.3d 868, 873–74 (8th Cir. 2007); Horton v. Cockrell , 70 F.3d 397, 401 (5th Ci r. 1995); with Dale, 548 F.3d at 569 (prisoner’s “vague stat ements that in mates were ‘pressuri ng’ hi m and ‘asking questi ons’” were in suffi ci ently speci fi c to put guar ds on notic e that he was in danger). But eve n whenhe i s aware of a sub stanti al ris k of serious harm to an inm ate, a pr i son guard isnot liab le i f he responds reasonably to t he ris k, whether or not his response ulti mately pr event s the harm. Farmer, 511 U.S. at 844; Borello v. Allison , 446 F.3d 742, 747–48 (7th Cir. 2006).

The evi dence intro duced at su mmary j udgment can s upport a find i ng that Lesatz
was s ubjecti vely aware of a serious ris k of harm t o Gi daris i ngh and inexpli cably i gnor ed i t. We addre ss fi rst Lesatz’s awareness of the ris k. “In fai lure to prot ect cases, a pris oner no rmally pro ves actual knowledge of im pending harm by showing that he complained to pr i son offi ci als about a spec i fi c threat t o hi s safety .” Pope v. Shafer , 86 F.3d 90, 92 (7th Ci r. 1996) (i nternal quot ation and b racket s omi tte d). Th at is exactly what Gi daris i ngh di d. Gi daris i ngh sent a note addr essed to Lesatz, speci fyi ng a pris oner (Lewi s) who had just thr eatened hi m. The n ote reflected thatthe thr eat was credi ble (bec ause i t in clud ed a plaus ible moti ve—r etaliati on for a g ang-relate d shooting), an d i t reinf or ced the threat ’s credibi li ty by refer ring to an already -completed act (the fac espi tting). Mor eov er, Gid aris i ngh aver s (an d, at this stage, we must acc ept) that Lesatz admi tte d that he r ecei ved t he note befor e the att ack, allowing hi m ti me to r espond. We don’t k now exactly how much ti me Lesatz had to tak e acti on, but the re cord allows aNo. 13-3156 Page 5

rat i onal i nference that he received the note ei ther near the end of hi s sh i ft a day before the att ack or at the beg i nning of hi s next shi ft, sever al hours before the at tack. Thus the evidenc e suggests that Lesatz k new about the threat well befor e the att ack.
Despi te his awareness of the threat, Lesatz di d nothin g. “Once prison offi ci als know about a serious ri sk of harm, they hav e an obli gation to t ake r easonable meas ures to abat e i t.” Dale, 548 F.3d at 569 (in ter nal quotation omi tte d). But as f ar as the r ecord so far shows, L esatz di d not investi gate the thr eat, deleg ate t he matter to an underling, or deal fi rst wi th more pressing i ssu es. If pri son offi ci als are aware of a serious threat “and do not hing, that is deli

berate indi fference.” Billman v. Ind. D ep’t of Corr. , 56 F.3d 785, 788 (7th Ci r. 1995); see also Velez v. Johnson , 395 F.3d 732, 735–36 (7th Cir. 2005); Haley v. Gross , 86 F.3d 630, 642–43 (7th Cir. 1996); Pope, 86 F.3d at 92; Howard v. W aide, 534 F.3d 1227, 1240–41 (10th Ci r. 2008). Had Lesatz taken somereasonable acti on i n response to the thr eat, ev en i f i t did not ultimately prev ent an att ack, he mi ght av oid l i abi li ty. See R iccardo v. Rausch , 375 F.3d 521, 525–28 (7th Cir. 2004); Lewis v. R ichards , 107 F.3d 549, 553–54 (7th Ci r. 1997). But becaus e the r ecord suggests thatLesatz di d nothin g, a reasonable jur y could conclu de that he delib erat ely dis reg arded a serious ri sk to Gi daris i ngh’s safety

.
The di stric t courtgav e two pr i mary r easons for coming to a contrar y conclu si on—and Lesatz relies on si mi lar ar guments on appeal—bu t neither convin ces us. Fi rst, t he di stric t courtconclu ded that no r easonable jury could fi nd Lesatz deliberately i ndi fferent becaus e, even if i t gr anted Gi daris i ngh the gener ous inference that Lesatz r ecei ved t he note 23 hour s bef or e the att ack, that t i me wastoo short t o require a response. We mi ght ag ree if the record contained evi dence that ot her, mor e urgentdemands pressed on Lesatz’s ti me after he r ecei ved t he note, o r that Gi daris i ngh had a hi stor y of cry i ng wolf to g et im medi ate at tention. Then, a d elayed r esponse mi ght be reasonable. But nothin g inthe re cord ex plains the delay, so we cannot say t hat Lesatz’s inacti on was reasonable. See Velez , 395 F.3d at 735–36 (no quali fi ed i mmu ni ty for g uard who di d not im medi ately investi gate si tuation after in mate pressed emerge ncy call b utto n); Lane, 894 F.2d at 220, 223–24 (summ ary judgment inapp ro priate where i nmate was attacked the same eveni ng that he r epor ted a thr eat). Second, t he di stric t courtwrot e that Gidari singh put hi mself at r i sk by “vo luntaril y” leav i ng hi s cell, whi ch allowed L ewi s to sneak up on hi m. But “contrib utor y negligence i s not a defense to an alleg ation of intentional or r eckless c onduct.” See L ane, 894 F.2d at 224.
We agr ee wi th the dis tr i ct court, howev er, t hat summ ary judgment was appropr i ate o n Gi daris i ngh’s procedural due-process c lai ms, though we arrive at thisNo. 13-3156 Page 6

conclu si on for a differentreason. We wi ll ass ume that Gi daris i ngh had a consti tutionally prot ected liberty i ntere st i n avoiding 360 days i n di sci plinary segreg ation, s i nce the pri son offi ci als do not ar gue ot herwi se—though that question i s hardly sett led. See S andin v. C onner, 515 U.S. 472, 485–86 (1995); Hardaway v. Meyerhoff , 734 F.3d 740, 744–45 (7th Cir. 2013). The most seri ous due- process argument Gi daris i ngh pursues i s that the pr i son authoriti es vi ewed outsi de of hi s presence the video recor ding of the brawl, wi thout g i ving hi m a ch ance to view i t or to r espond. An i nmate has a ri ght in pri son di sci plinary pr oceedi ngs to v i ew potentially exculpatory video eviden ce, unl ess the pri son authoriti es ci te a leg i tim ate securi ty r eason that precludes the offender from seeing the t ape, see Piggie v. C ott on , 344 F.3d 674, 678–79 (7th Ci r. 2003)—and the pris on offi ci als have not ci ted sucha reason. Nonetheless, due process was n ot v i olated because the vid eo could not hav e helped Gi daris i ngh’s defens e agains t either of the t wo di sci plinary charg es. See Jones v. Cross , 637 F.3d 841, 847–49 (7th Cir. 2011); Scru ggs v. Jorda n , 485 F.3d 934, 940–41 (7th Ci r. 2007). First, for t he head-b utting ch arg e, Gi daris i ngh di d not deny str i kin g Princ l wi th hi s head and hurtin g hi m. Instead, he clai med that the contact was acci dental or that he t hought Princ l was one of hi s attacker s. But the di sci plinary r egulation covers all harmful c ontact, r egar dless of i ntent. It states that “[a]ny in mate who caus es bodi ly i njury or harm to ano ther is gui lty o f an offens e.” W I S

. A D MI N

. C OD EDOC § 303.12(1). It no longer i nclu des a mens r ea requirement, although i t once di d. See S tat e ex rel. Di llard v. McCaughtry, 658 N.W.2d 87, 2003 WL 328429, at *1 & n.1 (Wi s. Ct. App. 2003) (unp ubli shed di sposi tion). Thus, the video would not have ex culp ated Gi daris ingh. See Jones , 637 F.3d at 847–49; Scru ggs , 485 F.3d at 940–41. Gidari singh replies that t he di smi ssalof hi s cri minal ch arg e establi shes that t he video was exculpator y, but he i s i ncorre ct. The cri minal ch arg e—unli ke t he admini strat i ve charg e—requires an intent t o harm. See W I S

. S TAT . § 940.20(1). Second, for the charg e of di sobeyi ng or ders, see W I S

. A D MI N

. C OD EDOC § 303.24, Gi daris i ngh does not ex plain how the video could h ave helped hi m bec ause he does n ot deny that g uards order ed hi m to sto p fi ghting; he merely denies hearin g the o rder

.
We have consi dered Gi daris i ngh’s other arg uments an d bri efly explain why we rej ect them. Gi daris i ngh contends that hi s di sci pline for t wo other i nci dents violated hi s procedural due pro cess rights bec ause the di sci plinary decis i ons were based on “fals e evidenc e.” But becaus e Gi daris i ngh received adequate hearin gs and these di sci plinary deci si ons were supported by “some facts,” he cannot succ eed i n chal lengi ng these deci si ons. See Hanr ahan v. Lane, 747 F.2d 1137, 1139–41 (7th Cir. 1984). G i daris i ngh’s ret ali ation c lai ms f ai l becau se he has not pr esented admi ssi ble evid ence that anyNo. 13-3156 Page 7

defendant acted agai nst hi m because he engaged in c onsti tutionally prot ected acti vity. See K idwell v. Eisen hauer , 679 F.3d 957, 964–66 (7th Cir. 2012). Finally, Gi daris i ngh atte mpts to r ai se a mali ci ous-prosecuti on clai m against pri son offi ci als for refer ring the batter y charge t o crim i nal authoriti es. But that clai m fai ls bec ause he h as not presented evidenc e that t he pris on offi ci als referr ed the charge with m ali ce. See Wis. Pub. S erv. Corp. v. Andrews , 766 N.W.2d 232, 238 (Wi s. Ct. App. 2009).

Accordi ngly, we VACATE the j udgment and REMAND only wi th respect to the fai lure-to-pro tect clai m agai nst Lesatz. In all other respects, the judgment is AFFIRMED

.