# Ybarra v. Indiana Dep't of Corrections

> District Court, N.D. Indiana · July 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10161406

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** July 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10161406

## How later opinions describe it (automated extraction)

- holding that “a deliberate indifference claim cannot be predicated merely on knowledge of general risks of violence”
- holding that “a defendant may not avoid trial on the grounds of qualified immunity” if there are genuine issues of fact regarding the elements of the deliberate-indifference claim

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

RANDY RUSSELL YBARRA,

Plaintiff,

v. CAUSE NO. 3:19-CV-343-JD-MGG

RODRIGUEZ, et al.,

Defendants.

OPINION AND ORDER
Randy Russell Ybarra, a prisoner without a lawyer, is proceeding in this case “on
an Eighth Amendment claim for money damages against Investigator Rodriguez,
Counselor Wilson, Sergeant Statham, Officer Dunlap, Deputy Warden Payne, and
Lieutenant Lott for failing to protect him against attacks from other inmates from
January 22, 2019, to March 8, 2019[.]” ECF 9 at 5. The defendants filed a motion for
summary judgment. ECF 100. Ybarra filed a response and the defendants filed a reply.
ECF 112, 121. The summary judgment motion is now fully briefed and ripe for ruling.
I. FACTS
In the middle of 2018, Ybarra complained about a correctional officer at Indiana
State Prison. ECF 100-1 at 18-20. The officer was investigated and quit after it was
determined she was bringing items into the prison. Id. at 18. Offenders in Ybarra’s cell
house told Ybarra to recant his story, demanded that Ybarra pay them for messing up
their “route,” and began threatening Ybarra. Id. at 18-19. Ybarra did not submit any
protective custody requests in 2018 because he was not worried about the threats and
believed they would work out. Id. at 20. Offenders began stealing Ybarra’s food on
numerous occasions between mid-2018 and January 2019, but Ybarra did not report

these incidents to the prison staff. Id. at 21.
Ybarra first submitted a protective custody request on January 22, 2019, because
he had a large commissary order coming and he knew the offenders would try to steal
it. Id. at 14-15, 20-21. After submitting his protective custody request, Ybarra was
interviewed by Investigator Rodriguez. Id. at 15; ECF 100-2. Ybarra reported he was
“fed up” with things and did not want to pay the offenders any more money. ECF 100-1

at 15. At that time, Ybarra did not know the names of those threatening him. Id. at 22-23.
Ybarra was unable to provide Investigator Rodriguez with names, cell house units, or
descriptions for any of the people threatening him. ECF 100-2. At the time of Ybarra’s
interview with Investigator Rodriguez, Ybarra had not received any threats for three
months but members of a gang had been disrespectful toward him. ECF 100-1 at 24-25;

ECF 100-2. Investigator Rodriguez told Ybarra she would try to investigate his
allegations but he had not provided her with any verifiable information. ECF 100-2.
Investigator Rodriguez did not place Ybarra in protective custody and allowed him to
return to general population. ECF 100-1 at 25. Ybarra had no further interactions with
Investigator Rodriguez after that date. Id.

On January 25, 2019, Ybarra wrote a request to Counselor Wilson asking if he
could be moved out of the cell house and into protective custody. Id. Ybarra never
heard back from Counselor Wilson and does not know if Counselor Wilson received his
request. Id. at 26-28.
On January 27, 2019, Ybarra was assaulted. Id. at 28. While on his way to chow,
two men came up behind him and hit him a few times with their fists. Id. Ybarra did not

see who attacked him and could not identify them. Id. It was a surprise assault that
Ybarra was not anticipating. Id. at 28-29. Ybarra did not report the assault to anyone. Id.
at 29.
On January 31, 2019, Ybarra saw an offender steal money from out of his bag. Id.
at 30. In response, Ybarra went to the custody hall and submitted a second request for
protection, asserting he had been assaulted the prior weekend and had received threats

to have boiling water thrown on him. Id.; ECF 27-1 at 2. Ybarra wrote down the names
and cell house units of some of the individuals he was requesting protective custody
from. Id.; ECF 100-1 at 31. While at the custody hall, Ybarra had a conversation with Lt.
Lott. ECF 100-1 at 31. Ybarra told Lt. Lott he did not want to return to his cell house
because people had threatened to throw boiling water on him. Id. at 31-32. Lt. Lott

escorted Ybarra back to his cell house and placed him on “key lock” status, meaning his
cell was not opened for offender movement and had to be manually opened by a
correctional officer. Id. at 32. Ybarra remained on key lock status while his second
request for protection was being reviewed. Id. at 37. While on key lock status, Ybarra
remained in his cell at all times and had his food brought to him. Id. at 33.

Ybarra’s second request for protection was reviewed by Counselor Wilson, who
received the request for protection on February 1, 2019. ECF 100-3. Counselor Wilson
interviewed Ybarra in his cell and Ybarra wrote down the cell locations of the offenders
from whom he was seeking protection. Id. Counselor Wilson asked Ybarra whether any
of the offenders he listed came up to him and threatened him and Ybarra replied, “No. I
stay away from them.” Id. The day after Ybarra was placed on key lock, an offender

named Raymond attempted to hit Ybarra with a lock through his cell bars and spit on
him. ECF 100-1 at 33-35. It was an unprovoked attack that Ybarra did not expect. Id. at
35. Ybarra reported this attack to Counselor Wilson. Id. at 36. Counselor Wilson
interviewed Ybarra a second time on February 4, 2019. ECF 100-3. Counselor Wilson’s
notes indicate that, during this interview, he asked Ybarra if he was involved in a drug-
related debt and Ybarra responded affirmatively. ECF 100-3. Later that afternoon,

Counselor Wilson appeared at Ybarra’s cell and explained to him he had recommended
his request for protection be denied due to “no verifiable information.” Id.
On February 6, 2019, Counselor Wilson told the correctional officers to take
Ybarra off key lock status. ECF 100-1 at 37. Ybarra told Sgt. Statham, the officer on duty,
that if he was taken off key lock he would be assaulted. Id. at 49. Ybarra could not recall

whether he provided Sgt. Statham with any additional information or whether he
named any specific individuals he feared. Id. Ybarra also gave Sgt. Statham a written
request in hopes he would contact someone higher up. Id. Ybarra never saw Sgt.
Statham again after giving him his written request, and he does not know what Sgt.
Statham did with the written request. Id. That same day, Ybarra also submitted an

informal grievance to Deputy Warden Payne Id. at 51-52.
The afternoon after Ybarra was taken off key lock, he was assaulted while
socializing with other offenders outside of a cell. Id. at 38. Six to eight gang members
asked to speak with him and then “sucker punched” him and “stomped” him. Id. at 39.
Ybarra did not have an opportunity to alert any correctional officers immediately prior
to the assault. Id. at 40. No correctional staff witnessed the assault. Id. at 41. Officer

Dunlap encountered Ybarra shortly after the assault and saw Ybarra’s bloody face. Id. at
41-42. Officer Dunlap could not have done anything to stop the attack. Id. at 42. Ybarra
never asked Officer Dunlap for protective custody. Id.
Ybarra was seen by medical staff on February 7, 2019, and remained in the
medical unit until March 1, 2019. Id. at 44-45. While Ybarra was housed at the medical
unit, he received a response to his informal grievance from Deputy Warden Payne. Id.

at 53. Upon Ybarra’s release from medical, he was transferred from C-cell house to
A-cell house. Id. at 45. Prior to March 1, 2019, Ybarra had not been threatened by any
individuals in A-cell house. Id. at 46. Ybarra began receiving threats in A-cell house
around March 2, 2019. Id. Ybarra reported these complaints to Deputy Warden Payne.
Id. at 47. Ybarra was never physically assaulted in A-cell house and was taken out of

general population on March 8, 2019, and placed in a protective custody unit. Id. at
47-48. Neither side disputes these facts, and the courts accepts them as undisputed.
II. ANALYSIS
STANDARD OF REVIEW
Summary judgment must be granted when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Federal
Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the
evidence is such that a reasonable [factfinder] could [find] for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a genuine
issue of material fact exists, the court must construe all facts in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Heft v.

Moore, 351 F.3d 278, 282 (7th Cir. 2003). However, a party opposing a properly
supported summary judgment motion may not rely merely on allegations or denials in
its own pleading, but rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th
Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice.”
Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009). Summary

judgment “is the put up or shut up moment in a lawsuit . . ..” Springer v. Durflinger, 518
F.3d 479, 484 (7th Cir. 2008).
EIGHTH AMENDMENT STANDARD
The Eighth Amendment imposes a duty on prison officials “to take reasonable
measures to guarantee the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832

(1994). “[P]rison officials have a duty to protect prisoners from violence at the hands of
other prisoners.” Id. at 833. “[I]n order to state a section 1983 claim against prison
officials for failure to protect, [a plaintiff] must establish: (1) that he was incarcerated
under conditions posing a substantial risk of serious harm and (2) that the defendants
acted with deliberate indifference to his health or safety.” Santiago v. Walls, 599 F.3d 749,

756 (7th Cir. 2010) (quotation marks omitted). Deliberate indifference is “something
approaching a total unconcern for a prisoner’s welfare in the face of serious risks,” or a
“conscious, culpable refusal” to prevent harm. Duane v. Lane, 959 F.2d 673, 677 (7th Cir.
1992). To prevail, the plaintiff must establish that the defendant “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’s failure to prevent it.” Santiago,

599 F.3d at 756.
In the context of failure to protect cases, the Seventh Circuit has equated
“substantial risk” to “risks so great that they are almost certain to materialize if nothing
is done.” Brown v. Budz, 398 F.3d 904, 911 (7th Cir. 2005). In such cases, “a prisoner
normally proves actual knowledge of impending harm by showing that he complained
to prison officials about a specific threat to his safety.” Pope v. Shafer, 86 F.3d 90, 92 (7th

Cir. 1996). “[T]he fact that an inmate sought and was denied protective custody is not
dispositive of the fact that prison officials were therefore deliberately indifferent to his
safety.” Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997). Moreover, “[e]xercising poor
judgment . . . falls short of meeting the standard of consciously disregarding a known
risk to his safety.” Id. at 554.

Ybarra is proceeding against six defendants “for failing to protect him against
attacks from other inmates from January 22, 2019, to March 8, 2019[.]” ECF 9 at 5. Each
defendant will be addressed in turn.
Investigator Rodriguez
Here, the undisputed facts show Ybarra did not complain to Investigator
Rodriguez about a specific threat to his safety. See Pope, 86 F.3d at 92. Specifically, the

evidence shows Investigator Rodriguez interviewed Ybarra on January 22, 2019, and
Ybarra told Investigator Rodriguez he had received threats but could not provide the
names, cell locations, or descriptions of any of the offenders who had threatened him.
ECF 100-1 at 23; ECF 100-2. Moreover, Ybarra told Investigator Rodriguez he had not
received any threats for three months prior to the interview. ECF 100-2. This

conversation was the only interaction Ybarra had with Investigator Rodriguez. ECF
100-1 at 25. Ybarra asserts Investigator Rodriguez “did not do anything but punish
[him] for coming forward,” but the recorded interview shows Investigator Rodriguez
questioned Ybarra at length and attempted to obtain verifiable details about the risks he
faced. ECF 100-2; ECF 112 at 4-5. Because Ybarra did not provide Investigator
Rodriguez with any verifiable details regarding the threats he received, no reasonable

jury could find Investigator Rodriguez was deliberately indifferent to Ybarra’s safety
for returning him to general population on January 22, 2019. See Weiss v. Cooley, 230 F.3d
1027, 1032 (7th Cir. 2000) (holding that “a deliberate indifference claim cannot be
predicated merely on knowledge of general risks of violence”). Summary judgment is
warranted in favor of Investigator Rodriguez.

Counselor Wilson
The evidence shows Ybarra submitted a request for protection to Counselor
Wilson on January 31, 2019, in which Ybarra asserted he was assaulted the prior
weekend and had received threats to have boiling water thrown on him. ECF 27-1 at 2.
Ybarra also informed Counselor Wilson that an inmate named “Raymond” attacked
him with a lock and spit on him through his cell bars the day after he was placed on key

lock. ECF 100-1 at 36. Moreover, unlike Ybarra’s interview with Investigator Rodriguez,
Ybarra gave Counselor Wilson the cell locations of some of the offenders from whom he
was seeking protection. ECF 100-3. Counselor Wilson denied Ybarra’s request for
protection on February 4, 2019, “due to no verifiable information.” ECF 100-3.
Counselor Wilson also noted that Ybarra admitted to being involved in a drug-related

debt, but Ybarra responds he never was involved in a drug debt and never told any
staff he was involved in a drug debt. Id.; ECF 27-1 at 3; ECF 112 at 7. Two days after
Counselor Wilson denied Ybarra’s request for protection, Ybarra was removed from
key lock and assaulted later that day. ECF 100-1 at 38.
The defendants argue Counselor Wilson was not deliberately indifferent because
he investigated Ybarra’s allegations and failed to substantiate them. ECF 101 at 17.

Ybarra responds that Counselor Wilson did not conduct any investigation and denied
his request for protection because he believed the dispute was related to a drug debt.
ECF 112 at 7-8, 32-33. The defendants reply that Wilson interviewed Ybarra twice in an
attempt to verify the threat he faced, but that his investigation revealed there was no
verifiable risk. ECF 121 at 8. The defendants do not provide any other evidence of what

investigation Counselor Wilson conducted. Accordingly, the question before the court
is whether Counselor Wilson was deliberately indifferent for rejecting Ybarra’s request
for protection after interviewing Ybarra twice and conducting no further investigation
into the facts Ybarra alleged.
Here, construing the facts in the light most favorable to Ybarra, a reasonable jury

could conclude Counselor Wilson was deliberately indifferent to Ybarra’s safety for
rejecting his request for protection without adequately investigating his allegations.
Specifically, Ybarra provided Counselor Wilson with the cell locations of some of the
offenders from whom he was seeking protection, and there is no indication Counselor
Wilson made any attempt to question these offenders to verify Ybarra’s claims. It is
unclear which offenders Ybarra identified, but a reasonable jury could conclude they

were the offenders threatening Ybarra or had information about the threats Ybarra had
received. The evidence indicates Counselor Wilson investigated Ybarra’s request for
protection only by interviewing Ybarra twice and concluding he owed a drug debt,
which Ybarra disputes. ECF 27-1 at 3; ECF 100-3.
The defendants also argue Counselor Wilson is entitled to qualified immunity
because “it is not clearly established that reviewing an offender’s complaint,

interviewing the offender twice but simply being unable to verify the offender’s
accusations amounts to deliberate indifference in violation of the Eighth Amendment.”
ECF 101 at 19. However, crediting Ybarra’s version of events, there are disputed
material facts regarding whether Counselor Wilson conducted a constitutionally
adequate investigation prior to rejecting Ybarra’s request for protection. See Mordi v.

Zeigler, 770 F.3d 1161, 1164 (7th Cir. 2014) (“[t]he court cannot resolve disputed issues of
fact when it addresses [whether the facts alleged describe a violation of a protected
right] because the ordinary rules governing summary judgment apply in that
situation”); Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (holding that “a
defendant may not avoid trial on the grounds of qualified immunity” if there are

genuine issues of fact regarding the elements of the deliberate-indifference claim).
Accordingly, because a reasonable jury could conclude Counselor Wilson was
deliberately indifferent to Ybarra’s safety for rejecting his request for protection without
conducting an adequate investigation, the summary judgment motion is denied as to
Ybarra’s claim against Counselor Wilson.

Sgt. Statham
Here, there is no evidence Sgt. Statham knew of a specific threat to Ybarra’s
safety. See Pope, 86 F.3d at 92. Specifically, the evidence shows: (1) Sgt. Statham was on
duty at Ybarra’s cell house when Counselor Wilson instructed the correctional officers
to remove Ybarra from key lock status; (2) Ybarra told Sgt. Statham he would be
assaulted once removed from key lock status and gave Sgt. Statham a written request

for protection he “was hoping” Sgt. Statham would pass to his superiors; (3) Ybarra
could not recall whether he gave Sgt. Statham any specific details regarding the threat
he faced; and (4) Ybarra never saw Sgt. Statham again after giving him the written
request. ECF 100-1 at 49. Thus, at the time of Ybarra’s interaction with Sgt. Statham, Sgt.
Statham knew Ybarra’s request for protection had been reviewed and denied and he

had been ordered removed from key lock status. There is no evidence Ybarra provided
Sgt. Statham with any new information showing a specific threat of harm existed.
Accordingly, no reasonable jury could find Sgt. Statham was deliberately indifferent to
Ybarra’s safety for removing him from key lock status. Summary judgment is
warranted in favor of Sgt. Statham.
Officer Dunlap

Ybarra asserts Officer Dunlap was deliberately indifferent because he saw
Ybarra’s injuries after he was assaulted on February 6, 2019, and took no measures to
protect him. ECF 112 at 20-21. However, Ybarra conceded he never requested protective
custody from Officer Dunlap and that there was nothing Officer Dunlap could have
done to prevent the February 6, 2019, assault. ECF 100-1 at 42. Because it is undisputed

that (1) Officer Dunlap could not have prevented the February 6, 2019, assault, and
(2) Ybarra was not physically assaulted at any point after his interaction with Officer
Dunlap, a reasonable jury could not conclude Officer Dunlap was deliberately
indifferent to Ybarra’s safety. See Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996)
(damages for a deliberate indifference claim cannot be predicated on an unrealized
attack). Summary judgment is warranted in favor of Officer Dunlap.

Deputy Warden Payne
The undisputed evidence shows: (1) Ybarra submitted an informal grievance to
Deputy Warden Payne on February 6, 2019, after he was removed from key lock status;
(2) Ybarra was assaulted later that afternoon; (3) Ybarra received Deputy Warden
Payne’s response to his grievance after he was assaulted and was housed in the medical

unit; and (4) Ybarra was not assaulted at any point after he received Deputy Warden
Payne’s grievance response. ECF 100-1 at 51-53. There is no evidence Deputy Warden
Payne both received and had a reasonable opportunity to respond to Ybarra’s grievance
prior to the February 6, 2019, assault. Thus, because there is no evidence Deputy
Warden Payne knew of a substantial risk to Ybarra before Ybarra was assaulted, no
reasonable jury could conclude Deputy Warden Payne acted with deliberate

indifference to Ybarra’s safety. See Babcock, 102 F.3d at 272. Summary judgment is
warranted in favor of Deputy Warden Payne.
Lt. Lott
The undisputed evidence shows Ybarra had a discussion with Lt. Lott on
January 31, 2019, and Lt. Lott instructed Ybarra to fill out a protective custody request

and returned him to his cell on key lock status while that request was being processed.
ECF 100-1 at 31-32. Ybarra asserts Lt. Lott should have placed him in “restrictive
housing” instead of returning him to his cell, but Lt. Lott was not deliberately
indifferent to Ybarra’s safety for returning him to his cell and placing him on key lock
status so no offenders could enter his cell. ECF 112 at 19. Thus, there is no evidence by

which a reasonable jury could conclude that Lt. Lott acted with deliberate indifference
to Ybarra’s safety. Summary judgment is warranted in favor of Lt. Lott.
For these reasons, the court:
(1) DENIES the motion for summary judgment (ECF 100) with respect to
Ybarra’s claim against Counselor Wilson but GRANTS it in all other respects;

(2) DISMISSES WITH PREJUDICE Ybarra’s claims against Investigator
Rodriguez, Sergeant Statham, Officer Dunlap, Deputy Warden Payne, and Lieutenant
Lott; and
(3) REMINDS the parties this case is now proceeding only on Ybarra’s claim
against Counselor Wilson.
SO ORDERED on July 30, 2021

/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10161406. Public record. Not legal advice.