Robert Wilk v. Dwight Neven

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT WILK, No. 17-17355

Plaintiff-Appellant,

D.C. No.

v. 2:15-cv-01429-

JCM-CWH

DWIGHT NEVEN, Warden; CARY

LEAVITT; J. NASH,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted November 15, 2019

San Francisco, California

Filed April 23, 2020

Before: Kim McLane Wardlaw, William A. Fletcher,

and Richard Linn,* Circuit Judges.

Opinion by Judge W. Fletcher

*

The Honorable Richard Linn, United States Circuit Judge for the

U.S. Court of Appeals for the Federal Circuit, sitting by designation.

2 WILK V. NEVEN

SUMMARY**

Civil Rights

The panel reversed the district court’s summary judgment

in favor of prison officials in an action brought pursuant to

42 U.S.C. § 1983 alleging that defendants violated plaintiff’s

right to be free from cruel and unusual punishment when they

failed to protect him from an attack by another inmate.

Plaintiff alleged that the prison warden, an associate

warden and a caseworker participated in a full classification

meeting to discuss plaintiff’s housing assignment after

plaintiff reported that an inmate had threatened to attack and

kill him. Plaintiff alleged that after the meeting, despite

knowing about the risk to plaintiff, defendants failed to

respond reasonably to protect plaintiff.

The panel held that taking plaintiff’s evidence as true and

viewing it in the light most favorable to him, defendants

violated plaintiff’s Eighth Amendment right to be protected

from serious harm while incarcerated. The panel held that a

reasonable fact-finder would be able to conclude that

defendants were subjectively aware of the substantial risk of

serious harm to plaintiff, and failed to respond reasonably.

The panel 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

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WILK V. NEVEN 3

right to be protected from violence at the hands of other

inmates. That right has been clearly established since the

Supreme Court’s decision in Farmer v. Brennan, 511 U.S.

825, 833 (1994).

The panel held that throughout proceedings in the district

court, while he was still incarcerated, plaintiff struggled to

obtain discovery from defendants, who resisted turning over

crucial documents such as his institutional file and their

records of housing classification meetings. On remand, the

panel instructed that plaintiff should have 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 panel encouraged the district court to appoint

counsel.

COUNSEL

Matthew V.H. Noller (argued), King & Spalding LLP,

Sacramento, California, for Plaintiff-Appellant.

Frank A. Toddre II (argued), Senior Deputy Attorney

General; D. Randall Gilmer, Chief Deputy Attorney General;

Aaron D. Ford, Attorney General; Office of the Attorney

General, Las Vegas, Nevada; for Defendants-Appellees.

4 WILK V. NEVEN

OPINION

W. FLETCHER, Circuit Judge:

On February 11, 2014, Robert Wilk was brutally assaulted

by another inmate in a Nevada state prison. Alleging

violations of his Eighth Amendment right to be free from

cruel and unusual punishment, Wilk brought suit against

defendants Dwight Neven, the prison warden; Jennifer Nash,

an associate warden; and Cary Leavitt, a caseworker. The

district court granted summary judgment to defendants. We

reverse.

I. Factual and Procedural Background

Because this case is before us on a grant of summary

judgment, we view the evidence in the light most favorable

to Wilk, the non-moving party. See, e.g., Estate of Lopez ex

rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017).

At all times relevant to this suit, 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, Nunley

threatened to attack and kill Wilk.

WILK V. NEVEN 5

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, Wilk participated in a full classification committee

meeting to discuss his housing assignment. According to

Wilk, defendants Leavitt, Nash, and Neven all attended the

classification meeting, either in person or through a

representative. Leavitt admits that he was at the meeting.

Nash and Neven contend 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, 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 placed on his enemy list. In fact,

Nunley had been returned to Unit 7 and had not been put on

Wilk’s enemy list. During another classification meeting in

November, defendants incorrectly told Wilk that Nunley “was

still in [disciplinary segregation].”

On February 11, 2014, Nunley attacked Wilk in the yard

between Units 7 and 8. The district court wrote, “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.” In their brief, defendants concede that

6 WILK V. NEVEN

“Nunley broke [away] from his unit” while being transferred

by correctional officers. On the day of the incident, but after

the attack, defendant Nash updated Wilk’s enemy list to

include Nunley.

Wilk alleges that Leavitt, Nash, and Neven each violated

his Eighth Amendment right by failing to protect him from

Nunley. Specifically, Wilk contends 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.

Defendant Leavitt concedes 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 argues that he cannot 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 does

admit that he might have made “a clerical mistake regarding

assigning Nunley to the enemy list,” but claims it was not his

job to update the prison’s records system.

Defendants Nash and Neven contend they did not attend

the October 29 classification meeting and were not aware of

the threat Nunley posed to Wilk. However, they

acknowledge that individuals housed in Unit 7 could

potentially have contact with individuals housed in Unit 8.

Wilk exhausted his administrative remedies and filed suit

in state court under 42 U.S.C. § 1983. Defendants removed

WILK V. NEVEN 7

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 court held that defendants were

entitled to qualified immunity because Wilk’s evidence, even

if true, did not establish an Eighth Amendment violation. The

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 court concluded,

further, 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 timely appealed.

II. Standard of Review

We review de novo a district court’s grant of summary

judgment. Grenning v. Miller-Stout, 739 F.3d 1235, 1238

(9th Cir. 2014). “Summary judgment is appropriate when,

with the evidence viewed in the light most favorable to the

non-moving party, there are no genuine issues of material

fact, so that the moving party is entitled to judgment as a

matter of law.” Id. (internal quotation marks omitted).

“[C]ourts should construe liberally motion papers and

pleadings filed by pro se inmates and should avoid applying

summary judgment rules strictly.” Thomas v. Ponder,

611 F.3d 1144, 1150 (9th Cir. 2010).

8 WILK V. NEVEN

III. Discussion

The Eighth Amendment requires prison officials to

protect inmates from violence. Farmer v. Brennan, 511 U.S.

825, 833 (1994). “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.” Id. at 834. 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. Id.

at 842.

We have applied Farmer on several occasions. In Lemire

v. California Department of Corrections and Rehabilitation,

726 F.3d 1062, 1068 (9th Cir. 2013), relatives of a prisoner

brought suit under the Eighth Amendment after the prisoner

committed suicide. According to the plaintiffs’ evidence, the

decedent was able to commit suicide only because prison

officials left the decedent’s unit, a specialized housing unit

for individuals on psychotropic medications, completely

unsupervised for three-and-a-half hours. Id. at 1070–71.

Under prison policy, prison officials were required to conduct

regular security inspections designed to prevent inmate

suicide, and such inspections could have prevented the

decedent’s death. Id. at 1070. We held that if the plaintiffs’

evidence was true, defendants violated the Eighth

Amendment. Id. at 1085–86.

In Clem v. Lomeli, 566 F.3d 1177, 1180 (9th Cir. 2009),

the plaintiff’s cellmate became drunk and threatened him.

WILK V. NEVEN 9

The plaintiff immediately informed a prison official, who did

nothing. Id. The cellmate then attacked the plaintiff. Id.

The jury found for the defendant, but we reversed based on

erroneous jury instructions: “There was evidence showing

that [the officer] heard Clem’s call for help immediately prior

to his beating, and that the officer took no steps to abate any

risk to Clem. Clem was therefore entitled to a ‘failure to act’

instruction, and the district court erred in rejecting it.” Id. at

1182 (noting that Eighth Amendment violations can occur

when a prison official acts but also when a prison official

fails to act). We held that doing nothing in response to

Clem’s pleas for help would have been unreasonable,

amounting to “deliberate indifference.” Id.

In Cortez v. Skol, 776 F.3d 1046, 1049 (9th Cir. 2015), a

prison official attempted to transport three high-security

inmates through a back-alley passage in the prison called “no

man’s land” that was impossible to see on security cameras.

Prior to the escort, the official knew that there was hostility

among the three men and that, due to his protective custody

status, one of them, Cortez, was potentially in danger. Id.

The official nonetheless escorted the three men, who were not

wearing leg irons, by himself. Id. The other two men

attacked Cortez, “kick[ing] and stomp[ing] on the back of his

head.” Id. During the attack, the officer was unable to stop

the men with verbal commands or pepper spray. Id. “Cortez

suffered a brain injury that caused severe, permanent mental

impairment.” Id. We reversed the district court’s grant of

summary judgment to the defendant, holding that the officer

showed “deliberate indifference” by transporting the three

men without backup when he knew physical violence was

possible. Id. at 1053.

10 WILK V. NEVEN

In addition to considering whether a constitutional

violation is alleged, we 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.

Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per curiam)

(quotation marks omitted). “[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.

We have 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

(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.” Id.

We first evaluate whether defendants were aware that

there was a substantial risk of serious harm to Wilk.

Nunley’s threat to Wilk meant that there was substantial risk

WILK V. NEVEN 11

that he would attack Wilk and cause him serious harm. See

Cortez, 776 F.3d at 1049–51; Clem, 566 F.3d at 1182.

Defendant Leavitt admits that he was present at the initial

classification meeting, which specifically focused on the

threat posed by Nunley. Leavitt contends, 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. Leavitt’s contention is

inconsistent with Wilk’s evidence. Wilk’s relocation to Unit

8, which Leavitt concedes 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. A reasonable juror could find that Leavitt was

subjectively aware of the substantial risk of serious harm to

Wilk.

Defendant Nash does not admit that she attended the

initial classification meeting, but because this case is before

us on summary judgment, we take as true the facts as stated

by Wilk. 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. 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.

Defendant Neven also disputes that he attended Wilk’s

classification meeting. However, according to Wilk, Neven

was present at the meeting, either in person or through a

representative. Again, because the sole purpose of that

12 WILK V. NEVEN

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. Moreover, 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 February 11, 2014,

over three months later. Construing the evidence in the light

most favorable to Wilk, we hold 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.

We next evaluate whether defendants responded

reasonably to the known substantial risk that Nunley posed to

Wilk.

Taking Wilk’s evidence as true and viewing it in the light

most favorable to him, Leavitt’s response was not reasonable.

Leavitt knew that inmates in Unit 7 and Unit 8 sometimes

interacted. He nonetheless placed Wilk in Unit 8, knowing

that Nunley was in Unit 7 and would have an opportunity to

attack Wilk. Further, 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. Leavitt has never

stated that he processed Wilk’s form. He stated only that it

is his usual custom to process the forms, and that he could

have made a mistake. Because Nunley was not on Wilk’s

enemy list, other prison officials had no way of knowing that

Wilk needed protection from Nunley. Still further, Leavitt

actively misled Wilk by telling him that Nunley remained in

WILK V. NEVEN 13

disciplinary segregation when instead he had been moved to

Unit 7. Not only did Leavitt fail to protect Wilk and undercut

the ability of other officers to protect Wilk, but he also

reduced Wilk’s own ability to protect himself.

According to Wilk’s evidence, Nash either attended or

sent a representative to the October meeting that determined

where Wilk would be housed. Thus, a reasonable jury could

find that Nash either participated firsthand in the dangerous

housing assignment or knew about the assignment and did

nothing to alleviate the risk. See Clem, 566 F.3d at 1182

(noting that an official’s failure to act can constitute an

Eighth Amendment violation). Like Leavitt, Nash misled

Wilk by telling him that Nunley remained in disciplinary

segregation. Further, a reasonable jury could conclude that

Nash was at least partially responsible for the failure to

update Wilk’s enemy list because she acted immediately after

the attack to update the list, which suggests that she had the

authority to update the list all along.

Viewing the evidence in the light most favorable to Wilk,

Neven also either attended the October housing meeting or

sent a representative. Like Leavitt and Nash, he misled Wilk

by telling him that Nunley had not been moved to Unit 7.

Further, because Neven oversaw the process of updating

inmates’ enemy lists, a jury could find that Neven had the

power to process Wilk’s request but failed to do so.

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 can claim ignorance to a prisoner’s right to be

protected from violence at the hands of other inmates. That

right has been clearly established since the Supreme Court’s

14 WILK V. NEVEN

decision in Farmer v. Brennan in 1994. See 511 U.S. at 833;

Castro, 833 F.3d at 1067. We have recently and explicitly

held that it is 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. Wilk’s case

does not involve the sort of “novel factual circumstances”

contemplated by Hope. 536 U.S. at 741. Rather, the facts are

“materially similar” to previous cases. Id.

We note 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. On remand, Wilk should

have another opportunity to seek the materials he requested

previously, which have the potential to identify or exclude the

defendants. To assist with this process, we encourage the

district court to appoint him counsel. See Jones v. Blanas,

393 F.3d 918, 936–37 (9th Cir. 2004).

Conclusion

Taking Wilk’s evidence as true and viewing it in the light

most favorable to him, we hold that defendants violated his

Eighth Amendment right to be protected from serious harm

while incarcerated. We remand to the district court for

further proceedings consistent with this opinion.

REVERSED AND REMANDED.