On April 23, 2020, the Ninth Circuit Court of Appeals, in Wilk v. Neven,[1] held that prison officials violated a prison inmate’s constitutional right to protection from violence under the Eighth Amendment. The Court found that all of the officials were aware, through firsthand information or through representatives, that there was a substantial risk of serious harm to the inmate, yet disregarded that risk by failing to respond reasonably. The Ninth Circuit also held that any reasonable prison official in the defendants’ position would know that the actions defendants took, and failed to take, violated the Eighth Amendment.
Background
Units 7 and 8 at Nevada’s High Desert State Prison (“HDSP”) were protective units, where inmates were housed for their own safety. The units were located directly across from one another and shared a common yard. Inmates in Unit 7 were on a different schedule from inmates in Unit 8, limiting opportunities for contact between the two groups. However, opportunities for contact existed, for example, when inmates from the two units waited in the yard to go to classes or traveled through the yard on their way to medical appointments.
In October 2013, both Robert Wilk and Ysaquirle Nunley were housed in Unit 7. On or about October 20, 2013, Nunley threatened to attack and kill Wilk.
Wilk immediately reported the threat to his unit floor officer and was moved from Unit 7 to administrative segregation for his protection. Several days later, on October 29, 2013, Wilk participated in a full classification committee meeting to discuss his housing assignment. According to Wilk, Dwight Neven, the prison warden; Jennifer Nash, an associate warden; and Cary Leavitt, a caseworker all attended the classification meeting, either in person or through a representative. Of the three prison officials (collectively, “defendants”), Leavitt acknowledged that he was at the meeting, while Nash and Neven claimed that they were not at the meeting.
At the classification meeting, Wilk filled out documentation outlining his need for protection and requesting that Nunley be placed on his administrative “enemy list,” which would warn prison staff that Nunley posed a threat to him. Under normal prison procedures, such documentation would be submitted for review by the warden or his designee.
On October 30, 2013, Wilk was moved to Unit 8. He agreed to the move only because he believed Nunley had been removed from Unit 7 and had been put on his enemy list. However, Nunley had actually been returned to Unit 7 and had not been placed on Wilk’s enemy list. During another classification meeting in November, defendants incorrectly told Wilk that Nunley “was still in [disciplinary segregation].”
In February 2014, Nunley attacked Wilk in the yard between Units 7 and 8. “Nunley allegedly exited his cell without authorization and attacked Wilk with stones, gravel, and his fists.” “Wilk suffered extreme physical, emotional, and mental pain,” including a broken nose and damaged eyes. According to Wilk, Nunley had been “released . . . from his cell for a medical appointment.” Defendants conceded that “Nunley broke [away] from his unit” while being transferred by correctional officers.[2] On the day of the incident, but after the attack, associate warden Nash updated Wilk’s enemy list to include Nunley.
Seeking redress, Wilk exhausted his administrative remedies and filed suit in state court under 42 U.S.C. section 1983 against the defendants, alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment. Defendants removed the action to federal court. Throughout the proceedings in state and federal court, Wilk was pro se. The District Court acknowledged its obligation to construe liberally Wilk’s pro se filings. Wilk’s complaint failed initial screening, but the District Court allowed an amended complaint to go forward.
The District Court granted defendants’ motion for summary judgment. The District Court held that defendants were entitled to qualified immunity because Wilk’s evidence, even if true, did not establish an Eighth Amendment violation. The District Court concluded that there was no violation by defendants Neven and Nash because they had no subjective knowledge of the risk Nunley posed to Wilk. The District Court further concluded that there was no violation by Leavitt because Wilk had not shown “Leavitt was aware of an excessive or intolerable risk to Wilk’s health or safety,” and because Leavitt responded reasonably to any risk he did perceive. Wilk appealed.
Discussion
The Ninth Circuit Court of Appeals explained that the Eighth Amendment requires prison officials to protect inmates from violence. Farmer v. Brennan, 511 U.S. 825, 833 (1994).[3] “It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety.”[4] Specifically, a prison official violates an inmate’s Eighth Amendment right only if that official is “deliberately indifferent”—in other words, if the official is subjectively aware of a substantial risk of serious harm to an inmate and disregards that risk by failing to respond reasonably. Id. at 837, 844-45. A fact-finder may infer subjective awareness from circumstantial evidence.[5]
Discussing the two-part test for determining qualified immunity, the Court explained that in addition to considering whether a constitutional violation is alleged, courts ask whether the applicable law was “clearly established” at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Officials are subject to suit only for actions that they knew or should have known violated the law. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Law is “clearly established” for the purposes of qualified immunity if “every reasonable official would have understood that what he is doing violates th[e] right” at issue.[6] “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances”—i.e., even without a prior case that had “fundamentally similar” or “materially similar” facts. Hope, 536 U.S. at 741.
The Ninth Circuit noted that it had recently addressed clearly established Eighth Amendment law with respect to failure-to-protect claims. “The Supreme Court need not catalogue every way in which one inmate can harm another for us to conclude that a reasonable official would understand that his actions violated [the Eighth Amendment].” Castro v. County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016) (applying Eighth Amendment standards to a pretrial detainee’s case because, under City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983), pretrial detainees are entitled to at least as much protection as post-conviction inmates). Once an official is subjectively aware of a substantial risk of serious harm, “clearly established” law requires “only that the [official] take reasonable measures to mitigate the substantial risk.” Castro, supra, at 1067.
Wilk alleged that Leavitt, Nash, and Neven each violated his Eighth Amendment right by failing to protect him from Nunley. Specifically, Wilk argued that defendants knew from the classification meeting about the risk Nunley posed to Wilk and failed to respond reasonably when they placed Wilk and Nunley back in Units 7 and 8; misled Wilk by telling him Nunley was still in administrative segregation; and failed to update Wilk’s enemy list.
Leavitt conceded that he attended the classification meeting, was involved in the decision to move Wilk back to Unit 8, and knew that Nunley, housed in Unit 7, could potentially have some interaction with the individuals housed in Unit 8. However, Leavitt argued that he could not be liable because he took reasonable action to protect Wilk and, after Wilk was moved to Unit 8, did not perceive an excessive or intolerable risk of serious injury to Wilk. Leavitt admitted that he might have made “a clerical mistake regarding assigning Nunley to the enemy list,” but claimed it was not his job to update the prison’s records system.
Nash and Neven contended they did not attend the October 29 classification meeting and were not aware of the threat Nunley posed to Wilk. They acknowledged that individuals housed in Unit 7 could potentially have contact with individuals housed in Unit 8.
Substantial Risk of Serious Harm
Regarding Farmer v. Brennan’s deliberate indifference standard, the Ninth Circuit first considered whether defendants were aware that there was a substantial risk of serious harm to Wilk. The Court explained that Nunley’s threat to Wilk meant that there was substantial risk that he would attack Wilk and cause him serious harm.
Caseworker Leavitt admitted that he was at the initial classification meeting, which specifically focused on the threat posed by Nunley. Leavitt argued, however, that after Nunley was returned to Unit 7 and Wilk to Unit 8, Leavitt was correct in perceiving that Nunley no longer posed a substantial risk of serious harm. However, the Court found Leavitt’s contention to be inconsistent with Wilk’s evidence. The Court observed that Wilk’s relocation to Unit 8, which Leavitt conceded allowed contact with Unit 7, occurred shortly after Nunley’s threat. At that time, nothing about Wilk’s circumstances had changed. There was no reason to believe that Nunley no longer wished to attack Wilk, and Leavitt knew that Units 7 and 8 shared the same yard. The Court concluded that a reasonable juror could find that Leavitt was subjectively aware of the substantial risk of serious harm to Wilk.
Nash did not concede that she attended the initial classification meeting. However, the Court explained that because the case was before the Ninth Circuit on a grant of summary judgment for the defendants, the Court must view the evidence in the light most favorable to Wilk, the non-moving party.[7] According to Wilk, Nash was present at the meeting, either in person or through a representative. The sole purpose of that meeting was for Wilk to report Nunley’s threat and to express his fear of Nunley. The Court concluded, that, viewing the facts in the light most favorable to Wilk, a reasonable jury could conclude that Nash was either present at the meeting or received a report from the meeting, and that she was therefore subjectively aware of the risk Nunley posed to Wilk.
Neven also denied that he attended Wilk’s classification meeting, but according to Wilk, Neven was present at the meeting, either in person or through a representative. As with Nash, the Court found that because the sole purpose of that meeting was for Wilk to express his fear and report Nunley’s threat, a reasonable jury could conclude that Neven knew what happened at the meeting.
The Court noted, moreover, that Neven supervised the processing of requests to add someone to an inmate’s enemy list. According to defendants’ own evidence, caseworkers could not, on their own, add individuals to an enemy list. The warden or his designee was required to review and approve such requests. Wilk submitted the request to add Nunley to his enemies list on October 29, 2013, and the attack did not occur until over three months later. Construing the evidence in the light most favorable to Wilk, the Court held that a reasonable fact-finder could conclude that Warden Neven was personally aware of the risk posed by Nunley because of his role in supervising the enemy list revision process.
Failure to Respond Reasonably to the Substantial Risk of Serious Harm
The Ninth Circuit next considered that whether defendants responded reasonably to the known substantial risk that Nunley posed to Wilk. The Court concluded that taking Wilk’s evidence as true and viewing it in the light most favorable to him, Leavitt’s response was not reasonable.
The Court explained that Leavitt knew that inmates in Unit 7 and Unit 8 sometimes interacted. Yet he still placed Wilk in Unit 8, knowing that Nunley was in Unit 7 and would have a chance to attack Wilk. The Court also stated that a reasonable jury could find that Leavitt was responsible for submitting Wilk’s request to add Nunley to his enemy list and that he failed to do so.
The Ninth Circuit noted that Leavitt never asserted that he had indeed processed Wilk’s form. Leavitt stated only that it was his usual custom to process the forms, and that he could have made a mistake. The Court explained that because Nunley was not on Wilk’s enemy list, other prison officials had no way of knowing that Wilk needed protection from Nunley. The Court also determined that Leavitt actively misled Wilk by telling him that Nunley remained in disciplinary segregation when instead he had been moved to Unit 7. The Court explained that not only did Leavitt fail to protect Wilk and reduced the ability of other officers to protect Wilk, but he also inhibited Wilk’s own ability to protect himself.
The Ninth Circuit held that any reasonable prison official in the defendants’ position would know that the actions defendants took, and failed to take, violated the Eighth Amendment. None of the defendants could claim ignorance to a prisoner’s right to be protected from violence at the hands of other inmates because that right had been clearly established since the Supreme Court’s decision in Farmer v. Brennan in 1994. See 511 U.S. at 833; Castro, 833 F.3d at 1067. The Court explained that it had recently and explicitly held that it was clearly established that prison officials must “take reasonable measures to mitigate the [known] substantial risk[s]” to a prisoner. Castro, 833 F.3d at 1067. Characterizing the facts of Wilk’s case as “materially similar”[8] to the Court’s previous cases applying Farmer, the Court found the facts here did not involve the sort of “novel factual circumstances” contemplated by Hope. 536 U.S. at 741.
Taking Wilk’s evidence as true and viewing it in the light most favorable to him, the Court thus concluded that defendants violated his Eighth Amendment right to be protected from serious harm while incarcerated. Accordingly, the Ninth Circuit Court of Appeals reversed.
The Ninth Circuit noted that throughout proceedings in the District Court, while he was still incarcerated, Wilk struggled to obtain discovery from defendants, who resisted turning over crucial documents such as his institutional file and their records of housing classification meetings. The Ninth Circuit remanded to provide Wilk another opportunity to seek the materials he requested previously, which had the potential to identify or exclude the defendants. To assist with this process, the Court of Appeals encouraged the District Court to appoint Wilk counsel.
HOW THIS AFFECTS YOUR AGENCY
Agencies should observe the basic standard as expressed in Farmer: a prison official violates an inmate’s Eighth Amendment right only if that official is “deliberately indifferent” – meaning if the official is (1) subjectively aware of a substantial risk of serious harm to an inmate; and (2) disregards that risk by failing to respond reasonably. Agencies should also note that the Ninth Circuit placed the facts of this case as comfortably in the “clearly established” category for purposes of the Circuit’s qualified immunity analysis, lining up the case firmly under Farmer and its cited progeny. For training purposes with the goal of reducing circumstances that provide opportunity for inmate attacks, agencies may wish to compare the parallels and distinctions in the facts of the Ninth Circuit’s cited cases, in addition to those set forth in Wilk v. Neven.
Lastly, agencies should also observe that, under Hope, “Officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.
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[1] 2020 U.S. App. LEXIS 13079 (9th Cir. Apr. 23, 2020)
[2] The quotes in the paragraph are taken the federal District Court’s recount of the attack.
[3] The Ninth Circuit cited its applications of Farmer v. Brennan in Lemire v. California Department of Corrections and Rehabilitation, 726 F.3d 1062, 1068 (9th Cir. 2013); Clem v. Lomeli, 566 F.3d 1177, 1180 (9th Cir. 2009); and Cortez v. Skol, 776 F.3d 1046, 1049 (9th Cir. 2015).
[4] Farmer, 511 U.S. at 834.
[5] Id., at 842.
[6] Taylor v. Barkes, 575 U.S. 822, 135 S.Ct. 2042, 2044, 192 L. Ed. 2d 78 (2015) (per curiam) (quotation marks omitted).
[7] See, e.g., Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017).
[8] Hope, 536 U.S. at 741.