Penner v. Galipeau

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JEFFREY PENNER,

Plaintiff,

v. CAUSE NO. 3:23-CV-633-JD

ZAMBRANA, et al.,

Defendants.

OPINION AND ORDER

Jeffrey Penner, a prisoner without a lawyer, is proceeding in this case “against

Officer Smith, Sgt. Thomas, and Lt. Zambrana in their individual capacities for

compensatory and punitive damages for not protecting him from attack by a fellow

inmate on March 14, 2023, in violation of the Eighth Amendment[.]” ECF 7 at 2. The

defendants filed a motion for summary judgment. ECF 54. Penner filed a response, and

the defendants filed a reply. ECF 66, ECF 67. The summary judgment motion is now

fully briefed and ripe for ruling.

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). A party opposing a properly supported

summary judgment motion may not rely merely on allegations or denials in its own

pleading but 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).

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. To establish a failure-to-protect claim, the plaintiff must

provide evidence “(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). To meet this standard, the plaintiff must show 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.”

Id.; see also Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (the prison official

“must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw that inference”). 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).

The defendants provide affidavits, in which they attests to the following facts:

During all relevant times, the defendants worked at Westville Correctional Facility

(“WCF”) and were assigned to the Protective Custody Unit (“PCU”). ECF 54-1 at 1; ECF

54-2 at 1; ECF 54-3 at 1. On March 7, 2023, Penner and another inmate named Andre

Jefferson were both moved from their respective housing units into the PCU. ECF 54-1

at 2; ECF 54-2 at 2; ECF 54-3 at 2. At that time, the defendants were not aware of any

history of problems between Penner and Jefferson. Id. Over the next week, between

March 7 and March 14, the defendants were not aware of any incidents that occurred

between Penner and Jefferson. Id.

On March 14, 2023, the defendants were all on shift in the PCU. ECF 54-1 at 2;

ECF 54-2 at 2; ECF 54-3 at 2. At that time, the defendants still were not aware of any

problems between Penner and Jefferson. ECF 54-1 at 2; ECF 54-2 at 2; ECF 54-3 at 2.

Specifically, Jefferson had not made any threats to any of the defendants related to

Penner or any other inmate, and Penner had not informed any of the defendants of any

threat to his safety or any issue he had with Jefferson. ECF 54-1 at 1-2; ECF 54-2 at 1;

ECF 54-3 at 1-2. At some point on March 14, Jefferson told Officer Smith that he did not

want to be in the PCU. ECF 54-1 at 2. It is unclear what time on March 14 this

conversation took place. Officer Smith did not interpret Jefferson’s statement to be a

threat against Penner or any other inmate, as many inmates who are held in the PCU

often state they do not want to be there. Id. Jefferson stated only that he did not want to

be in the PCU, and did not make any threats or indicate he had any problem with

Penner or any other inmate. Id.

Later that day, around 2:30 p.m., Jefferson approached Penner in the PCU

dayroom and asked to talk to him for a minute. ECF 1 at 2; ECF 54-5. Jefferson and

Penner walked from the dayroom to the PCU’s living area, at which point Jefferson

punched and choked Penner. Id. Penner left the PCU’s living area and told Officer

Smith he’d been attacked by Jefferson. ECF 1 at 2; ECF 54-1 at 2. Penner was seen by

medical staff and received treatment, while Jefferson was written up and moved into

another housing facility. ECF 54-3 at 2-3; ECF 54-9. The defendants each attest they were

not present when Jefferson attacked Penner, did not witness the attack firsthand, did

not have any advanced warning or reason to believe that Jefferson was going to attack

Penner, and did not have any opportunity to prevent or intervene in the attack. ECF 54-

1 at 2-3; ECF 54-2 at 2; ECF 54-3 at 2-3.

The defendants argue summary judgment is warranted in their favor because

there’s no evidence they had actual knowledge of a substantial risk of harm to Penner

prior to the attack. ECF 55 at 6-10. As discussed above, Penner must provide evidence

that, at the time of Jefferson’s attack on March 14, (1) Penner was incarcerated under

conditions posing a “substantial risk” of serious harm and (2) the defendants had actual

knowledge of that risk. In his summary judgment response, Penner argues the

defendants had actual knowledge of the risk of violence posed by Jefferson and could

have prevented the assault for two reasons.

First, Penner argues the defendants had knowledge of the risk of violence posed

by Jefferson because Jefferson was “a known problem at Westville Correctional.” ECF

66 at 1. But this falls short of the standard that Penner must show he complained to the

defendants about a “specific threat to his safety.” See Pope, 86 F.3d at 92. Specifically,

Penner does not explain how he knows that Jefferson was a “known problem at

Westville Correctional,” nor does he allege that that information was known to the

defendants. Rather, Penner does not dispute the defendants’ attestations that Penner

never informed them that he had any problem with Jefferson or that he feared for his

safety. See ECF 54-1 at 2; ECF 54-2 at 1-2; ECF 54-3 at 2. As such, Penner’s assertion that

Jefferson was a “known problem” at WCF describes at most a generalized risk of

violence and does not show the defendants had actual knowledge of a substantial risk

of serious harm to Penner. See Pope, 86 F.3d at 92; 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”).

Second, Penner argues the defendants had actual knowledge of the risk of

violence posed by Jefferson because Jefferson told the defendants he would assault an

inmate if they did not let him out of the PCU. ECF 66 at 1. Specifically, Penner argues

that “Jefferson went up to Officer Smith before the assault and told him he was gonna

fuck somebody up if he was not moved,” and Sgt. Thomas “told Jefferson to do what he

had to do.” Id. However, Penner does not provide any foundation for this testimony.

Specifically, Penner does not explain when this conversation took place, and does not

explain how he has personal knowledge of this alleged conversation. See Fed. R. Evid.

602 (providing that “A witness may testify to a matter only if evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the matter.”).

In his complaint, Penner asserted this conversation between Jefferson and the

defendants took place on March 7, the day he and Jefferson arrived in the PCU and a

full week before the assault. ECF 1 at 2. In their summary judgment motion, the

defendants argue and provide evidence this conversation could not have taken place as

Penner described, as Officer Smith and Lt. Zambrana were not working on March 7,

and Sgt. Thomas was working that day but was assigned to other duties. ECF 55 at 6-7;

ECF 54-6 (shift rosters from March 7, 2023, and March 14, 2023). The defendants also

argue Penner has no foundation to provide this testimony, as there is no evidence

Penner was a witness or party to this alleged conversation or had any firsthand

knowledge that the conversation took place. ECF 55 at 7-8; see Fed. R. Evid. 602. In his

summary judgment response, Penner does not respond to any of these arguments. See

ECF 66 at 1. He does not explain when this alleged conversation between Jefferson and

the defendants took place, and does not argue or provide evidence he was a witness or

a party to the conversation or otherwise had any firsthand knowledge of the

conversation. See id. As such, Penner has not provided any admissible1 evidence

showing that Jefferson told the defendants he would assault an inmate if he was not

moved out of the PCU.

Moreover, even assuming Penner’s testimony about the conversation between

Jefferson and the defendants is admissible, it does not show the defendants had actual

knowledge of a “substantial risk of serious harm” to Penner. Specifically, accepting as

true that Jefferson told Officer Smith that he wanted to be moved out of the PCU and

would “fuck somebody up” if he was not moved, there’s no evidence Officer Smith

knew this threat posed a “substantial risk” to Penner’s safety such that the risk was

“almost certain to materialize” if nothing was done. Rather, the evidence shows only

that Jefferson made a generalized threat on March 7, a week before the assault, and did

not threaten Penner or any other inmate specifically. It’s undisputed Jefferson never

made any threats directly against Penner and that Penner never informed the

defendants about any threat to his safety, and Officer Smith could have reasonably

believed Jefferson’s statement that he would “fuck somebody up” if he was not moved

out of the PCU was either (1) a threat against correctional staff or (2) an empty threat

1 To be sure, “the Federal Rules of Civil Procedure allow parties to oppose summary judgment

with materials that would be inadmissible at trial so long as facts therein could later be presented in an

admissible form.” Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014) (emphasis added). But while “[t]he

evidence need not be admissible in form,” it “must be admissible in content.” Wheatley v. Factory Card

& Party Outlet, 826 F.3d 412, 420 (7th Cir. 2016); see also Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009)

(“a court may consider only admissible evidence in assessing a motion for summary judgment”); Bombard

v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (evidence relied upon at the summary

judgment stage must be competent evidence of a type otherwise admissible at trial). Because Penner’s

testimony is inadmissible under Fed. R. Evid. 602 due to his lack of personal knowledge, and not because

of the form in which he presented the evidence, his testimony cannot properly oppose a summary

judgment motion. See Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001) (a party may not rely upon

inadmissible testimony to oppose a motion for summary judgment).

made in an attempt to get transferred out of the PCU. See Est. of Miller by Chassie v.

Marberry, 847 F.3d 425, 428 (7th Cir. 2017) (“Prisoners can be manipulative, using deceit

to obtain advantages; guards are accordingly entitled to be skeptical”); Jackson v. Frank,

No. 20-cv-035-DWD, 2023 WL 6311517, at *3 (S.D. Ill. Sept. 28, 2023) (to prove actual

knowledge of impending harm, the plaintiff must show the defendants had knowledge

of “a specific, credible and imminent risk of serious harm,” not just “a generalized,

vague, or stale concern about one’s safety”) (citing Gevas, 798 F.3d at 480). Thus,

Penner’s testimony about the alleged conversation between Jefferson and the

defendants, if admissible, does not show the defendants had actual knowledge Jefferson

posed a “substantial risk of harm” to Penner.

Accordingly, there is no evidence in the record by which a reasonable jury could

conclude the defendants had actual knowledge of a substantial risk of harm to Penner

prior to the attack by Jefferson.2 Summary judgment is therefore warranted in favor of

the defendants.

For these reasons, the court:

(1) GRANTS the defendants’ motion for summary judgment (ECF 54); and

(2) DIRECTS the clerk to enter judgment in favor of the defendants and against

Jeffrey Penner and to close this case.

2 Because the court concludes there’s no evidence the defendants had actual knowledge of a

substantial risk of harm to Penner, it does not reach the defendants’ alternative arguments that (1) Penner

did not face a substantial risk of harm prior to the attack, (2) they were not deliberately indifferent to that

risk, and (3) they are entitled to qualified immunity.

SO ORDERED on August 29, 2025

/s/JON E. DEGUILIO

JUDGE

UNITED STATES DISTRICT COURT