David Gevas v. Christopher McLaughlin

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1057

DAVID C. GEVAS,

Plaintiff-Appellant,

v.

CHRISTOPHER MCLAUGHLIN, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:08-cv-01379-JBM-JAG — Joe Billy McDade, Judge.

ARGUED JUNE 4, 2015* — DECIDED AUGUST 20, 2015

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. While David Gevas was imprisoned

at the Henry Hill Correctional Center in Galesburg, Illinois, his

*

This appeal was initially submitted for decision on the briefs and the

record. See Fed. R. App. P. 34(a)(2). Upon consideration of the appeal,

however, the panel concluded that it would benefit from re-briefing and

oral argument. Counsel was appointed to represent Gevas (who initially

had briefed the appeal pro se) for these purposes.

2 No. 13-1057

cellmate stabbed him in the neck with a pen. Gevas filed a pro

se complaint against three prison officials, alleging inter alia

that they violated the Eighth Amendment’s proscription

against cruel and unusual punishment by failing to protect him

from the attack. See U.S. CONST. amend. VIII, cl. 3; 42 U.S.C.

§ 1983.1 That claim proceeded to a jury trial, at which Gevas

was represented by appointed counsel. At the conclusion of

Gevas’s case in chief, however, the district court granted

judgment as a matter of law to the officials on the ground that

no reasonable jury could conclude that they were subjectively

aware that Gevas was in danger. See Fed. R. Civ. P. 50(a). We

reverse. Were a jury to credit Gevas’s testimony that he alerted

each of the defendants to his cellmate’s threats to stab him, it

could find that the defendants were aware of the danger posed

to Gevas. The district court therefore erred in granting judg-

ment as a matter of law to the defendants on that ground. We

conclude further that neither of the alternative arguments

advanced by the defendant officials would sustain the entry of

judgment as a matter of law. The case will be returned to the

district court for a second trial.

I.

The case that Gevas presented in support of his Eighth

Amendment claim consisted entirely of his own testimony. As

judgment was entered against Gevas pursuant to Rule 50(a),

we are obliged to assume the truth of his testimony and

otherwise construe the record in the light most favorable to

1

Certain other claims and defendants were disposed of prior to trial. Only

the Eighth Amendment claim is at issue in this appeal.

No. 13-1057 3

him. E.g., Acevedo v. Canterbury, 457 F.3d 721, 722 (7th Cir.

2006).

Gevas, who is serving a life sentence, was transferred to

Hill from the Stateville Correctional Center on January 2, 2008.

Upon completion of an orientation period, Gevas was assigned

to a succession of different cells and cellmates in the general

population of the prison. See R. 194 at 7.

Gevas testified that, in the months before the pen-stabbing

incident, he had repeatedly complained to prison officials

about certain cellmates that he believed posed a danger to him;

and in March and April 2008, he filed grievances demanding

that he not be celled with gang members. He was assigned to

a new cell, with William Adkins, on May 17, 2008; but Adkins’

mercurial and hostile temperament had Gevas ?walking on egg

shells.” R. 231 at 11. Gevas testified that Adkins ?wanted me

out of his cell” and threatened on a daily basis to stab him,

saying that Gevas was ?not too big to bleed” and ?not too big

to be beaten up.” R. 231 at 10-11. (We are told that Gevas has

a stout physique.) According to Gevas, Adkins identified

himself as a gang member and accused Gevas of snitching on

a previous cellmate, John Taylor, who was also a gang mem-

ber. Gevas testified that Adkins’s behavior caused him to feel

?very tormented, in fear for [his] life.” R. 231 at 14.

Gevas discussed the situation with three prison staff

members. First he spoke with Wayne Steele, his prison coun-

selor, on May 22, five days after Adkins had become his

cellmate. Gevas told Steele that Adkins was threatening to stab

him. He asked Steele to put the two of them on a ?keep-

separate” list and, in Gevas’s words, ?begged for [Steele] to

4 No. 13-1057

move me.” R. 231 at 15. Gevas also handed Steele a letter (and

sent an identical follow-up letter through the prison mail on

May 26) saying that Adkins had accused him of snitching on

his previous cellmate and ?constantly talks about his gang and

stabbing me and wants me out of his cell.” Plaintiff’s Group Ex.

12. Second, the day after meeting with Steele, Gevas briefly

saw Steve Wright, the acting warden of operations, as Wright

was conducting one of his frequent walk-through inspections

of the kitchen where Gevas was working as a cook. As there

were other inmates present in the kitchen and Gevas had work

to do, he spoke to Wright discretely. Gevas told Wright ?as fast

as [he] could” that Adkins had threatened Gevas (including

Adkins’s remark that he was ?not too big to bleed”) and

expressed concern that he not be stabbed. R. 231 at 33. Third,

Gevas met with Christopher McLaughlin, an internal affairs

officer, who visited Gevas’s cell two days later, on May 25.

Gevas had a 10- to 15-minute discussion with McLaughlin in

which he again described Adkins’s threats and he asked to be

placed in protective custody. McLaughlin advised Gevas that

because Hill is a medium-security prison, no protective

custody was available. Three days prior to and one day after

this meeting, Gevas also sent to McLaughlin (through the

prison mail) the same letters that he sent to Steele. Plaintiff’s

Group Ex. 14. (Re-typed copies of these letters were admitted

into evidence.) Gevas testified that none of the three officials

responded to the concerns he had raised about Adkins.

McLaughlin had told Gevas that he would summon Gevas to

the internal affairs office for a follow-up discussion, but that

did not occur either.

No. 13-1057 5

On cross-examination, defense counsel elicited details about

a conversation that Gevas had with McLaughlin in late March

regarding a prior cellmate, Taylor.2 Gevas acknowledged that

McLaughlin informed him on that occasion that he could

?refuse housing” if he believed he was in jeopardy from his

cellmate. We gather that an inmate refuses housing by declar-

ing to a prison official that he will not comply with his cell

assignment—in other words, that he will refuse to return to his

designated cell. Gevas understood that if he did refuse hous-

ing, he would receive a disciplinary ticket for disobeying an

order, be moved immediately to the prison’s segregation unit

(and thus separated from Adkins), and remain there for a

period of 30 days (longer for subsequent offenses) while prison

officials investigated his refusal. ?That’s punishment,” Gevas

opined. R. 231 at 50. ?I’m being punished for being threatened

on top of it.” R. 231 at 50. Gevas acknowledged that, when an

inmate receives a disciplinary ticket, ?ultimately you get the

chance to go to the adjustment committee, which is a group of

staff that decide whether or not you had a good reason for

refusing housing … .” R. 231 at 51. But in his experience, the

odds of convincing the adjustment committee to exonerate him

of the disciplinary violation were not good. Gevas conceded

that he rejected ?the option of refusing housing and being

separated from Mr. Adkins,” and instead ?chose to stay in the

cell with” him. R. 231 at 53-54. On re-direct, Gevas explained

2

Neither the context nor the timing of this conversation was established

by the questioning of Gevas at trial. However, the record otherwise makes

clear that this conversation took place on or about March 30, 2008, when

McLaughlin spoke with Gevas regarding a grievance he had submitted over

a prior cell assignment. See R. 176 at 10, 176-1 at 22; R. 187 at 3 ¶ 9.

6 No. 13-1057

that he did not want to go to segregation because he believed

that he would lose his job in the prison kitchen (which, per his

earlier testimony, would mean that he would spend 23 hours

per day in his cell rather than 16 to 18 hours) and would have

to speak with his terminally-ill mother through a glass barrier

when she visited the prison.

On May 29, four days after Gevas spoke with McLaughlin,

Adkins stabbed Gevas four times in the neck with a pen as

Gevas was tying his shoes and preparing to exit their cell for

dinner. Adkins then commenced throwing items in the cell at

Gevas, until a guard arrived and took Adkins into custody.

Gevas was escorted to the prison’s health care unit, where a

nurse cleaned the puncture wounds and gave him a tetanus

shot. The wounds healed within two weeks, although Gevas

testified that he experienced continuing anxiety as a result of

the assault. Gevas testified that he also suffered an injury to his

shoulder in the incident which caused him ongoing pain.

After Gevas rested his case, the defendant officials moved

for judgment as a matter of law. They argued that they had

responded reasonably to the reported threats by providing

Gevas the opportunity to refuse housing and thereby avoid

Adkins. In the alternative, they asked for qualified immunity

because ?there is no case law that says they have to give

[Gevas] the way out of that cell that he wants; they [just] have

to provide some way for him to get away from an inmate that

is a danger. They provided that.” R. 231 at 60-61. Gevas’s

lawyer replied that refusing housing was not a reasonable

option, because Gevas ?would lose his job and all visitation

with his family members” in segregation. R. 231 at 61.

No. 13-1057 7

The district court granted judgment as a matter of law to

the officials, see Rule 50(a), but not for the reasons they had

argued. The court concluded that Gevas had not put forward

sufficient evidence showing that the officials were subjectively

aware of a serious risk of harm to him, see Farmer v. Brennan,

511 U.S. 825, 837-38, 114 S. Ct. 1970, 1979 (1994), and so could

not prove that the officials violated the Eighth Amendment.

R. 231 at 65-66. The court declined to additionally rest its

decision on the officials’ argument that their response to the

danger—advising Gevas that he could refuse housing—was

reasonable. The court pointed out that according to Gevas’s

testimony, refusing housing would expose him to punishment;

and the court was not prepared to say that Gevas was required

to do that in order to separate himself from Adkins. R. 231 at

67. Gevas’s subsequent request for a new trial was denied.

II.

Gevas argues on appeal that he presented enough evidence

to permit a reasonable jury to find that the officials actually

knew that he was in danger, and that the district court erred in

finding otherwise when it granted judgment as a matter of law

to the defendants. Gevas further contends that the alternate

grounds on which the officials defend the judgment are not

meritorious. The option of refusing housing was not a reason-

able response to the threat that Adkins posed, Gevas reasons,

because it required him to commit a disciplinary infraction and

expose himself to punishment in order to separate himself

from a cellmate whose threats he had reported to the officials.

Nor are the defendants entitled to qualified immunity, he

argues, because no prison official could have reasonably

believed that requiring a prisoner to commit a disciplinary

8 No. 13-1057

infraction was an adequate response to the threat posed by his

cellmate.

A prison official is liable for failing to protect an inmate

from another prisoner only if the official ?knows of and

disregards an excessive risk to inmate health or safety[.]”

Farmer, 511 U.S. at 837, 114 S. Ct. at 1979. A claim that a prison

official was deliberately indifferent to such a risk has both an

objective and a subjective component. Id. at 834, 114 S. Ct. at

1977. First, the harm to which the prisoner was exposed must

be an objectively serious one. Ibid. There is no dispute that the

threat of which Gevas was complaining (being stabbed by his

cellmate) meets this criterion. See, e.g., Brown v. Budz, 398 F.3d

904, 910 (7th Cir. 2005) (?a beating suffered at the hands of a

follow detainee … clearly constitutes serious harm”). The

parties’ dispute instead focuses on the subjective prong of the

deliberate indifference claim, which requires that the official

must have actual, and not merely constructive, knowledge of

the risk in order to be held liable; specifically, he ?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.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1979.

Although this inquiry focuses on an official’s subjective

knowledge, a prisoner need not present direct evidence of the

official’s state of mind: ?Whether a prison official had the

requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including inference

from circumstantial evidence … .” Id. at 842, 114 S. Ct. at 1981.

?In failure to protect cases, <[a] prisoner normally proves

actual knowledge of impending harm by showing that he

No. 13-1057 9

complained to prison officials about a specific threat to his

safety.’” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (per

curiam) (quoting McGill v. Duckworth, 944 F.2d 344, 349 (7th

Cir. 1991), overruled on other grounds by Farmer); see also

Gidarisingh v. Pollard, 571 F. App’x 467, 470 (7th Cir. 2014) (non-

precedential decision); James v. Milwaukee County, 956 F.2d 696,

700 (7th Cir. 1992); Santiago v. Walls, 599 F.3d 749, 769 (7th Cir.

2010) (Sykes, J., dissenting) (?Each defendant's state of mind is

inferred primarily from the circumstances surrounding the

assaults in question and the grievances Santiago filed alerting

prison officials to his complaints about [his assailants].”); cf.

Reed v. McBride, 178 F.3d 849, 854 (7th Cir. 1999) (knowledge

that plaintiff was being deprived of food and medication

established by prisoner’s letters). Complaints that convey only

a generalized, vague, or stale concern about one’s safety

typically will not support an inference that a prison official had

actual knowledge that the prisoner was in danger. See, e.g., Dale

v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (?[The prisoner’s]

vague statement that inmates were <pressuring’ him and

<asking questions’ were simply inadequate to alert the officers

to the fact that there was a true threat at play.”); Klebanowski v.

Sheahan, 540 F.3d 633, 639-40 (7th Cir. 2008) (beyond expressing

fear for his life, prisoner’s statements to guards did not identify

who was threatening him or what the threats were); Grieveson

v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (prisoner did not

mention to guards that he was perceived to be a ?snitch” or

otherwise apprise them of a specific threat to his life); Butera v.

Cottey, 285 F.3d 601, 606 (7th Cir. 2002) (prisoner only stated

vaguely that he was ?having problems” in his cellblock and

?needed to be removed”). Nor will complaints that are contra-

10 No. 13-1057

dicted by the prisoner himself suffice to establish knowledge.

See, e.g., Riccardo v. Rausch, 375 F.3d 521, 527 (7th Cir. 2004)

(prisoner initially expressed mortal fear of harm at hands of

cellmate, but subsequently indicated to guard he had no

concern). By contrast, a complaint that identifies a specific,

credible, and imminent risk of serious harm and identifies the

prospective assailant typically will support an inference that

the official to whom the complaint was communicated had

actual knowledge of the risk. See, e.g., Haley v. Gross, 86 F.3d

630, 643 (7th Cir. 1996) (prisoner advised sergeant, inter alia,

that cellmate was intimidating him, acting strangely, had

threatened that ?something crucial was going to happen” if one

of them was not moved, and was now ?deadlocked” in cell,

which restricted ingress to and egress from cell).

Gevas has adduced sufficient evidence that defendants

McLaughlin and Steele knew he was in danger of being

harmed by Adkins. He testified that he informed McLaughlin

and Steele in person that Adkins had threatened to stab him.

He also introduced into evidence re-typed copies of notes he

had handed or mailed to the officials; the notes stated that

Adkins had accused him of snitching on his prior cellmate and

?constantly talks about his gang and stabbing me.” Plaintiff’s

Group Exs. 12, 14. See Vance v. Peters, 97 F.3d 987, 993 (7th Cir.

1996) (letters to prison administrators may support inference

of knowledge, so long as prisoner ?demonstrat[es] that the

communication, in its content and manner of transmission,

gave the prison official sufficient notice to alert him or her to

<an excessive risk to inmate health or safety’”) (quoting Farmer,

511 U.S. at 837, 114 S. Ct. at 1979). In reviewing the district

court’s Rule 50(a) judgment, we must credit Gevas’s testimony

No. 13-1057 11

as true; and by his account, he related to both McLaughlin and

Steele a specific, repeated, imminent, and plausible threat to his

safety: Gevas identified the individual threatening him

(Adkins), the nature of the threat (that Adkins would stab

him), and supplied context that rendered the threats plausible

(including Adkins’s remark that Gevas had ?snitched” on a

prior cellmate). Cf. Dale, 548 F.3d at 570 (although defendant

officers ?all implored [plaintiff] for details” of threat to his

safety, he provided none). Given what was communicated to

these defendants, a jury reasonably could infer that they not

only had notice of facts from which they could infer that Gevas

faced a serious risk of substantial harm from Adkins, but that

they actually drew this inference, and were thus subjectively

aware of the danger he faced. See Haley v. Gross, 86 F.3d at 642-

43.

A jury could draw the same inference as to Wright. By

Gevas’s own telling, his interaction with Wright in the prison

kitchen was quite brief; and Gevas did not follow up by

sending a letter to Wright as he did with McLaughlin and

Steele. Nonetheless, accepting Gevas’s description of the

encounter as accurate, Gevas did manage to apprise Wright

that his cellmate was threatening to stab him. This was

sufficient to communicate the essential nature of the threat to

Wright and to support the inference that Wright, like

McLaughlin and Steele, had actual knowledge of the threat

that Gevas faced.

It is true that the defendants were not required to believe

that Gevas was in danger. See Riccardo, 375 F.3d at 525

(?[g]uards … must discriminate between serious risks of harm

and feigned or imagined ones”). For any number of reasons,

12 No. 13-1057

including information acquired in the course of any investiga-

tion into Gevas’s complaints, the defendants might have

concluded either that Gevas was not credible or that Adkins

did not present a genuine threat to his safety. In other words,

Gevas’s testimony, even accepted as the truth, does not compel

the finding that any of the defendants did draw the inference

that Gevas faced a substantial risk of serious harm. But for

purposes of Rule 50(a), the question is not whether the finder

of fact was compelled to determine or would have determined

that the defendants were actually aware of the danger, but

whether it could have made that finding. For the reasons we

have already articulated, Gevas’s testimony would permit a

jury to find that the defendants knew Adkins posed a substan-

tial risk to his safety.

Gevas is not otherwise required to prospectively negate the

defense case in order to survive a Rule 50(a) motion, as the

district court seemed to think. See R. 231 at 65-66. What, if any,

investigation the defendants did into the threats that Gevas

reported, and what they may have subjectively concluded as

to the credibility and gravity of the threats as a result of such

investigation, are matters that are within their knowledge and

will no doubt be presented in the defense case. Gevas is not

required to anticipate and refute that showing before it is

made. He need only present evidence from which their

knowledge may be inferred, and he has presented such

evidence. In any case, a determination of what the defendants

actually knew will almost certainly turn on an assessment of

each party’s credibility, for rarely is there direct, let alone

irrefutable, evidence of an individual’s subjective mental state.

See Farmer, 511 U.S. at 842, 114 S. Ct. at 1981; see also Miller v. Ill.

No. 13-1057 13

Dep’t of Transp., 643 F.3d 190, 196-97 (7th Cir. 2011); United

States v. Ramirez, 574 F.3d 869, 877-81 (7th Cir. 2009); United

States v. Carrillo, 269 F.3d 761, 769-70 (7th Cir. 2001); Knorr Brake

Corp. v. Harbil, Inc., 738 F.2d 223, 227-28 (7th Cir. 1984).

All that the record includes at this stage of the litigation is

what Gevas says he communicated to the defendants, and that

account, which stands unrebutted and unimpeached, would

support the requisite finding that the defendants were both on

notice of the danger that Adkins posed to Gevas, and that they

drew the inference that Gevas was at risk of being injured. The

district court therefore erred in finding that Gevas had not

produced sufficient evidence to support a judgment in his

favor.

This leaves us with the defendants’ first alternative

contention—that even if they were aware of the danger that

Adkins posed to Gevas, no reasonable jury could find that they

recklessly disregarded that risk, because they had made

available to Gevas a means of separating himself from Adkins.

Some seven weeks earlier, when Gevas had filed a grievance

expressing concern about a prior cellmate, McLaughlin had

advised Gevas that he could always refuse his cell assignment

and thereby trigger his transfer into disciplinary segregation

for a period of thirty days. See n.2, supra. Gevas ultimately

would have the opportunity to explain his refusal to an

adjustment committee which in turn could, in the exercise of its

discretion, deem his refusal justified. Gevas conceded, on cross-

examination, that he was aware of this option; and in the

defendants’ view, the fact that there was a process by which

Gevas could effectuate his own transfer out of his cell and that

Gevas knew he had this option is enough to establish that they

14 No. 13-1057

had offered Gevas a reasonable form of protection from the

threat posed by Adkins, if not the one he preferred. See, e.g.,

Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007) (so long as

officer responded reasonably to the risk, he cannot be said to

have been deliberately indifferent, even if his response did not

prevent harm from occurring) (quoting Peate v. McCann,

294 F.3d 879, 882 (7th Cir. 2002)).

One problem with this reasoning is its presumption that

Gevas understood that it was up to him to exercise this option

with respect to Adkins in particular. Our understanding is that

when McLaughlin had mentioned the possibility of refusing

housing, it was in the context of informing Gevas that his

grievance regarding Taylor was being denied. Gevas thus

understood that refusing housing was available as a last resort

if prison officials were unwilling to help him. But, so far as the

record reveals, the defendants had not yet communicated such

a message to Gevas with respect to Adkins. Gevas had re-

ported the threats Adkins had made, and as far as Gevas knew,

the defendants were looking into them; certainly he had not

been told that the defendants did not regard Adkins’s threats

(or his report of those threats) as credible and/or that they did

not plan to intervene. Certainly Gevas understood that it was

possible for him to refuse housing: he acknowledged that he

was aware of this option and that he chose not to pursue it and

instead remain in his assigned cell with Adkins. R. 231 at 53-54.

But it is not clear that Gevas understood that he should take

matters out of the defendants’ hands and into his own by

exercising this option before he knew whether the defendants

would take his complaints about Adkins seriously.

No. 13-1057 15

A second and more important problem with the defen-

dants’ reasoning, on the current record, is that it places a

burden on Gevas to commit a disciplinary infraction in pursuit

of his own safety. Gevas understood that if he refused housing,

he would be issued a disciplinary ticket, placed into the

prison’s disciplinary segregation unit, and later given the

opportunity to explain himself to the adjustment committee,

with no guarantee that the committee would find his refusal of

housing justified. In the meantime, because he had committed

a disciplinary infraction (and would be confined to disciplinary

segregation while the infraction was investigated), Gevas

believed he would lose his job in the prison kitchen and his

visitation rights would be limited in the sense that he would

only be able to interact with visitors through glass. And there

would be no assurance that the adjustment committee ulti-

mately would absolve him of the rules violation; if it did not,

he could be subject to punishment including the loss of good-

time credits. (By contrast, if officials instead had responded to

Gevas’s complaints by placing Adkins in administrative

detention as a precautionary measure while they looked into

his reported threats upon Gevas, it would have been consid-

ered a non-disciplinary placement. See 20 Ill. Admin. Code

§ 504.660(b)(2).) Gevas’s understanding of the refusal-of-

housing process and its consequences may or may not be

accurate; but on this record, it stands unrebutted, as the district

court recognized.3

3

Gevas’s understanding of the consequences of refusing housing is at least

plausible. Some of our own cases suggest that the refusal of housing is

treated as a disciplinary infraction. See, e.g., Smith v. Birkey, 447 F. App’x

(continued...)

16 No. 13-1057

Certainly a prisoner may be expected to behave reasonably

with respect to the dangers that prison life invariably presents.

But a prisoner is not obligated to commit a disciplinary

infraction in pursuit of his own safety. Prisons are, by their

very nature, disciplinary, liberty-restricting environments in

which ?safety and order are paramount concerns.” Volkman v.

Ryker, 736 F.3d 1084, 1092 (7th Cir. 2013); see also Bell v. Wolfish,

441 U.S. 520, 546, 99 S. Ct. 1861, 1878 (1979) (recognizing that

?maintaining institutional security and preserving internal

order and discipline are essential goals” in the prison setting).

Prisoners are expected to follow orders and rules, not disobey

them. It was the prison that placed Adkins and Gevas in a cell

together; and once the defendants were made aware that

Adkins was threatening Gevas, it was their obligation as prison

officials to assess the reported danger and to take reasonable

steps to address it if they found it to be a real one. The defen-

dants may not attempt to transfer that obligation to Gevas by

insisting that he go so far as to engage in insubordination in

order to take himself out of danger. See Young v. Selk, 508 F.3d

868, 874 (8th Cir. 2007).4

3

(...continued)

744, 745 (7th Cir. 2011) (non-precedential decision); Walsh v. Mellas, 837 F.2d

789, 792 (7th Cir. 1988); Walsh v. Brewer, 733 F.2d 473, 474 (7th Cir. 1984);

Redding v. Fairman, 717 F.2d 1105, 1115-16 (7th Cir. 1983).

4

The scenario Gevas has described must be contrasted with one in which

prison officials respond to a threat by transferring an endangered inmate

into administrative segregation for his own protection. The latter is a

common safety measure, see Borello v. Allison, 446 F.3d 742, 749 n.2 (7th Cir.

2006) (citing Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002)), and, although

(continued...)

No. 13-1057 17

For the same reasons, we reject, on the limited record before

us, the defendants’ followup contention that they are entitled

to qualified immunity, a contention premised on the notion

that it was reasonable for them to believe that Gevas’s ability

to refuse housing was a sufficient response to the danger even

if, as we have concluded, it was not. As we have been saying,

it is defendants who have the duty to protect a prisoner once

they become aware he is in danger of assault by another

prisoner, and this is a now well-settled aspect of Eighth

Amendment jurisprudence. See Farmer, 511 U.S. at 832-34,

114 S. Ct. at 1976-77 (collecting cases). Imprisonment, after all,

?strip[s] [prisoners] of virtually every means of self-protection

and foreclose[s] their access to outside aid[.]” Id. at 833,

114 S. Ct. at 1977. Prisoners lack even a right to invoke self-

defense in disciplinary proceedings when they have resorted

to violence as a means of protecting themselves. Rowe v.

DeBruyn, 17 F.3d 1047 (7th Cir. 1994); see also Arce v. Indiana

Parole Bd., 596 F. App’x 501, 503 (7th Cir. 2015) (non-preceden-

tial decision); Jones v. Cross, 637 F.3d 841, 847-48 (7th Cir. 2011);

Scruggs v. Jordan, 485 F.3d 934, 938-39 (7th Cir. 2007). On the

4

(...continued)

it may come with some additional restrictions on an inmate’s liberty within

the prison, see Sandin v. Connor, 515 U.S. 472, 115 S. Ct. 2293 (1995), is not

considered to be a disciplinary placement. In this case, however, the

placement was, by Gevas’s account, presumptively disciplinary, exposing

him to the possibility of punishment that might include the loss of good-

time credits, for example. See Hahn v. Murphy, No. CV 07-1153-SVW(MAN),

2011 WL 9378180, at *20 n.12 (C.D. Cal. Sep. 23, 2011) (magistrate judge’s

report and recommendation), adopted, 2012 WL 5456385 (C.D. Cal. Nov. 1,

2012) (distinguishing Young v. Selk, supra, on this basis).

18 No. 13-1057

record before us, construed in the light most favorable to the

plaintiff, the defendants were aware that Gevas was in danger

of being harmed by Adkins, who was threatening to stab him,

and yet did nothing to address that danger other than having

previously made him aware that he had the option to refuse

housing, be ticketed in response, and have himself transferred

into disciplinary segregation. Expecting a prisoner to defy an

order in pursuit of his own safety runs counter to the essential

nature of incarceration as well as to cases emphasizing the

need for order and discipline in the prison environment, see

Wolfish, 441 U.S. at 547, 99 S. Ct. at 1878 (courts must grant

?wide-ranging deference” to prison administrators vis-à-vis

?policies and practices that in their judgment are needed to

preserve internal order and discipline and to maintain institu-

tional security”); Burton v. Ruzicki, 258 F. App’x 882, 885 (7th

Cir. 2007) (non-precedential decision) (?discipline in a correc-

tional institution is <essential if the prison is to function’”)

(quoting Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984)), and

cases sustaining the imposition of discipline for a prisoner’s

refusal to comply with orders, including orders refusing

housing assignments, see Forbes v. Trigg, 976 F.2d 308, 313-14

(7th Cir. 1992) (refusal to comply with oral order for urine test);

Redding v. Fairman, supra n.3, 717 F.2d at 1115-16 (refusal of

housing assignment based on race of cellmate); Smith v. Roal,

494 F. App’x 663, 664-65 (7th Cir. 2012) (non-precedential

decision) (disobeying order to submit to handcuffing). A prison

official could not logically believe, in view of the duty imposed

on him by the Eighth Amendment, Farmer, and other deliberate

indifference cases, that requiring a prisoner to violate a prison

directive (including his cell assignment) is a reasonable

No. 13-1057 19

response to a substantial risk of the prisoner’s cellmate

attacking him. And the defendants may not now find refuge in

the doctrine of qualified immunity simply because no case had

previously rejected the specific defense that they have cre-

atively fashioned, when the logic (or illogic) of that defense is

so at odds with the respective duties that existing case law

imposed on prisoner and prison official. See Surita v. Hyde,

665 F.3d 860, 868 (7th Cir. 2011) (plaintiff is not invariably

required to point to case with similar facts in order to demon-

strate that right at issue was clearly established for purposes of

qualified immunity; ?the violation may be so obvious in light

of law existing at the time that a reasonable person would have

known that his or her conduct was unconstitutional”) (citing

Brokaw v. Mercer Cnty., 235 F.3d 1000, 1023 (7th Cir. 2000)).

Certainly the defendants can find no support in Riccardo in

this regard. The dissent in Riccardo took note of a prison policy

that would honor a prisoner’s request to be transferred out of

his cell if he alleged a fear for his personal safety but that

would also treat the request as a potential disciplinary violation:

if a followup inquiry revealed that the prisoner had refused

housing for no reason, the prisoner would at that time be

issued a disciplinary ticket. 375 F.3d at 532 & n.5. The dissent

cited that procedure simply to make the point that the prison

had a means of dealing with prisoners who were manipulative

or prone to ?cry wolf” without cause. Id. at 532. In any case,

Riccardo involved a different Illinois correctional facility

(Centralia), and the transfer policy described in that case is

markedly different from Hill’s policy (as described by Gevas).

Gevas’s testimony suggests that Hill treats a refusal of housing

as a presumptive disciplinary violation rather than a potential

20 No. 13-1057

one. The fact that he would be issued a ticket upon such a

refusal attests to that. And the mere mention of the policy in

Riccardo by a dissenter surely could not have given the defen-

dants cause to believe that they might reasonably rely on a

prisoner to resort to a forbidden form of self-help in order to

remove himself from a dangerous situation and thereby subject

himself to the prison disciplinary process.

We are, of course, dealing with a one-sided record, and

further development of the facts may demonstrate that

refusing housing was a more reasonable option than Gevas’s

testimony has made it out to be. For that reason, we decline

Gevas’s invitation to declare unreasonable as a matter of law

giving an inmate who expresses concern for his safety the

option of refusing housing and to direct the district court to so

instruct the jury. Our more modest holding is tied to the

limited facts presented by this record, construed favorably to

Gevas.

A final word about certain discovery that was denied to

Gevas in this case. Among other information, Gevas asked for

prison records related to Adkins’s institutional conduct,

disciplinary history, and criminal history. The defendants

objected to the request, principally on the ground that disclo-

sure might jeopardize institutional security and expose Adkins

to attack by other inmates. R. 27 at 19 ¶ 5; see also R. 34 at 3-4

¶ 4. The district court sustained the objection and denied

Gevas’s motion to compel. Although the district court has

broad discretion in resolving discovery objections, we believe

that the court abused its discretion in denying Gevas’s request

in toto. Gevas was pro se at the time he sought this discovery,

and he offered only boilerplate as justification in support of his

No. 13-1057 21

motion to compel. R. 27 at 3 ¶ 4. But Adkins’s criminal record

and institutional history is obviously relevant to the extent it

documents his history of violence (or lack thereof). Presum-

ably, that history would have been one of the very sources of

information that a prison official would have consulted in

investigating whether Adkins indeed posed a threat to Gevas;

the history therefore potentially sheds light on the defendants’

knowledge of any danger that Adkins posed to Gevas. Deny-

ing Gevas access to that information thus hinders his ability to

establish any deliberate indifference on the part of the defen-

dants. It may be that there are aspects of Adkins’s records that

are irrelevant to Gevas’s claim or which might jeopardize

institutional security or Adkins’s own safety if the information

fell into the hands of the wrong people. We agree with Gevas,

however, that those concerns may be addressed by (1) the

court’s in camera review of the pertinent records to determine

whether they reveal information relevant to Gevas’s claim and

should therefore be produced to Gevas and his counsel; and (2)

the entry of an appropriate protective order to address any

security concerns implicated by disclosure of any relevant

portions of Adkins’s disciplinary records—including one

restricting the disclosure of certain information to Gevas’s

counsel alone, if the court deemed such a restriction necessary.

The district court must revisit this discovery request on

remand.

There are two other categories of documents as to which

Gevas was denied discovery: documents concerning the

defendants’ disciplinary history and the existence of cells

occupied by only one inmate in the wing in which Gevas was

housed at the time of the attack. The defendants contend that

22 No. 13-1057

we lack jurisdiction to entertain Gevas’s arguments as to these

documents, because his notice of appeal specifically identified

the order denying his motion to compel as an object of appeal

only insofar as it concerned documents related to Adkins’s

disciplinary history. R. 247; see Chaka v. Lane, 894 F.2d 923, 925

(7th Cir. 1990). But Gevas is entitled to a liberal construction of

the notice, see JP Morgan Chase Bank, N.A. v. Asia Pulp & Paper

Co., 707 F.3d 853, 861-62 (7th Cir. 2013), particularly given that

he prepared it without the assistance of counsel, see Smith v.

Grams, 565 F.3d 1037, 1041-42 (7th Cir. 2009). These additional

two categories of documents were dealt with in the same order

that resolved Gevas’s request for documents concerning

Adkins’ criminal history. Moreover, the notice of appeal also

cited the final judgment that the district court entered against

him pursuant to Rule 50(a), and the appeal of a final judgment

is sufficient to bring before us all of the interlocutory orders

leading up to that judgment. See Librizzi v. Childrens Mem. Med.

Ctr., 134 F.3d 1302, 1305-06 (7th Cir. 1998); see also, e.g., Brown

v. Health Care Serv. Corp., 606 F. App’x 831, 834 n.2 (7th Cir.

2015) (non-precedential decision) (appeal of final judgment is

sufficient to bring up for review prior discovery orders). We

are satisfied that we have jurisdiction to consider these other

categories of documents. And we agree with Gevas that he was

entitled to documents regarding prison cells that were occu-

pied by only one other inmate at the time of the attack and the

days leading up to it. The existence of such cells would have a

bearing on the options available to the defendants to respond

to the threat posed by Adkins: Gevas could, in theory, have

been transferred to one of those cells. As for the defendants’

disciplinary history, Gevas suggests that documents along this

No. 13-1057 23

line would be relevant to show that the defendants were prone

to ignoring legitimate complaints. That sounds very much like

a propensity argument of the sort prohibited by Federal Rule

of Evidence 404(b), however. Cf. Jones v. Hamelman, 869 F.2d

1023, 1027 (7th Cir. 1989) (sustaining exclusion of testimony

offered to establish a pattern of ?callous indifference” toward

protection of inmates by correctional officer). Gevas has not

convinced us that the district court abused its discretion in

declining to order the production of those documents.

III.

For all of the reasons we have discussed, the district abused

its discretion in granting the defendants’ motion for entry of

judgment as a matter of law in their favor. The judgment is

REVERSED, and the case is REMANDED for re-trial. Prior to

re-trial, the court should revisit the subject of discovery

consistent with the observations we have made. We thank

Gevas’s appointed counsel, Kenneth J. Vanko, for his vigorous

and effective advocacy on Gevas’s behalf.