John Balsewicz v. Jonathan Pawlyk

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-3062

JOHN H. BALSEWICZ, a/k/a Melissa Balsewicz, *

Plaintiff-Appellant,

v.

JONATHAN S. PAWLYK, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:18-cv-97 — J.P. Stadtmueller, Judge.

____________________

ARGUED MAY 28, 2020 — DECIDED JUNE 26, 2020

AMENDED JULY 2, 2020

____________________

Before WOOD, Chief Judge, and MANION and KANNE,

Circuit Judges.

* Balsewicz, who has been diagnosed with Gender Dysphoria and is

taking cross-gender hormones, is recognized by the Wisconsin

Department of Corrections as a transgender inmate.

2 No. 19-3062

KANNE, Circuit Judge. When a prison official knows that an

inmate faces a substantial risk of serious harm, the Eighth

Amendment requires that official to take reasonable measures

to abate the risk.

Inmate John “Melissa” Balsewicz reported to a prison

guard that while she was in the shower house, another inmate

threatened to beat her up. 1 The guard, Sergeant Jonathan

Pawlyk, took no action in response to Balsewicz’s report; and

two days later, the inmate who had threatened Balsewicz

punched her in the head repeatedly, causing her to fall

unconscious.

Balsewicz filed a claim against Sergeant Pawlyk and other

prison officials under the Civil Rights Act of 1871, Rev. Stat.

§ 1979, as amended, 42 U.S.C. § 1983. She alleged that

Sergeant Pawlyk failed to take reasonable measures to abate

a known, substantial risk of serious harm to her, and thus

violated one of her Eighth Amendment rights. Granting

summary judgment to Sergeant Pawlyk, the district court

reasoned that the threat Balsewicz reported to the guard

could only be understood as expiring once the inmates left the

shower house, so no factfinder could conclude that Sergeant

Pawlyk knew Balsewicz faced an ongoing risk of serious

harm.

Because a reasonable juror could conclude otherwise

based on the submitted evidence, and because Sergeant

Pawlyk is not entitled to qualified immunity, we reverse.

1 Reference to Balsewicz as “Melissa” and by feminine pronouns is

consistent with the district court’s order and the parties’ briefing in this

case.

No. 19-3062 3

I. BACKGROUND 2

The events underlying this lawsuit occurred at Waupun

Correctional Institution in Wisconsin. Wisconsin Department

of Corrections policy requires that transgender prisoners

taking cross-gender hormones, like Balsewicz, must shower

separately from inmates who are not transgender or intersex.

See Wis. Dep’t of Corrs., Div. of Adult Insts. Policy No.

500.70.27. In March 2017, Balsewicz began complaining that

inmates who were not transgender or intersex were being

allowed to shower with those who are, including her.

Balsewicz eventually identified Denzel Rivers as one of those

inmates, believing Rivers falsely claimed to be transgender to

receive housing in a single cell.

On May 5, 2017, Rivers and Balsewicz were in a shower

house with other inmates. Rivers told Balsewicz to stay out of

the shower stall between two transgender inmates, and

Balsewicz asked him why. Rivers responded, “Don’t worry

about it, punk ass h[o]nky! I’ll beat the fuck out of you!”

Another inmate asked Rivers, “Why you threaten her like

that?” to which Rivers returned, “Mind your business before

you get [the] same treatment.”

Balsewicz finished showering and went straight to

Sergeant Pawlyk, the regular supervising sergeant in the

North Cell Hall, where prisoners with Gender Dysphoria are

housed. Balsewicz told Pawlyk “everything which had

2 Because this case comes to us on appeal from the district court’s

grant of summary judgment, our description reflects our view of the facts

in the light most favorable to the nonmoving party—Balsewicz—with all

reasonable inferences drawn in her favor. Daugherty v. Page, 906 F.3d 606,

609 (7th Cir. 2018).

4 No. 19-3062

transpired” in the shower house and complained that Rivers

should not be showering with her and the other transgender

inmates because he wasn’t really transgender or intersex. She

repeatedly asked Sergeant Pawlyk to report her concerns for

her personal safety following Rivers’s threat. Nearby inmates

witnessed this interaction, and one recalled that Balsewicz

“appeared agitated and fearful” and was talking in a

“pleadingly assertive manner.” Later that day, Balsewicz

asked another prison official to remind Sergeant Pawlyk to

report her “personal safety concerns of inmate River[s]’s

threat, with a supervisor.” Sergeant Pawlyk ultimately took

no action on Balsewicz’s complaint.

Two days later, when Rivers and Balsewicz were leaving

a dining hall with other inmates, Rivers “without any type of

provocation or warning” punched Balsewicz multiple times

in the head. Balsewicz collapsed, lost consciousness, and

experienced dizziness and numbness in her face.

After exhausting her administrative remedies, Balsewicz

filed a complaint against Sergeant Pawlyk and other prison

officials. The claim at issue here is one against Sergeant

Pawlyk, under 42 U.S.C. § 1983, that he failed to protect

Balsewicz from a known and substantial risk of serious harm

from Rivers. The district court granted summary judgment to

Sergeant Pawlyk. The court reasoned that Balsewicz had not

produced enough evidence for a jury to conclude that the

guard knew Rivers’s threat was ongoing after the inmates

finished showering. Balsewicz appealed, and Sergeant

Pawlyk reasserted that he is entitled to qualified immunity.

No. 19-3062 5

II. ANALYSIS

We review both the district court’s grant of summary

judgment and Sergeant Pawlyk’s assertion of qualified

immunity de novo. Orlowski v. Milwaukee County, 872 F.3d 417,

421 (7th Cir. 2017). We first address whether a jury could

decide that Sergeant Pawlyk knew Balsewicz faced a

substantial risk of serious harm from Rivers after she left the

shower house. We then turn to whether Sergeant Pawlyk is

entitled to qualified immunity.

A. Genuine Issue of Material Fact

Summary judgment for Sergeant Pawlyk is appropriate if

he, as the movant, has shown that no genuine dispute as to

any material fact exists and he is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). Conversely—setting aside

the guard’s assertion of a qualified-immunity defense, which

we address later—summary judgment is inappropriate if the

submitted evidence would allow a reasonable jury to return a

verdict for Balsewicz. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Because Balsewicz bears the burden of proof

at trial, a jury would not be able to return a verdict for her if

she has “fail[ed] to make a showing sufficient to establish the

existence of an element essential to [her] case.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). Sergeant Pawlyk contends

that this is precisely why summary judgment is appropriate:

Balsewicz failed to support an element essential to her case—

namely, Sergeant Pawlyk’s knowledge that Balsewicz faced

an excessive risk to her safety after she left the showers.

The guard’s knowledge is indeed an essential part of

Balsewicz’s case, and it is the only contested element of her

§ 1983 claim. Her claim is that Sergeant Pawlyk, under color

6 No. 19-3062

of state law, subjected Balsewicz to a deprivation of her

Eighth Amendment right not to be inflicted with cruel and

unusual punishment. See 42 U.S.C. § 1983. That right is

enforceable against the state of Wisconsin through the

Fourteenth Amendment. See Robinson v. California, 370 U.S.

660, 664–66 (1962).

The Eighth Amendment’s “cruel and unusual

punishments” clause requires prison officials to “take

reasonable measures to guarantee the safety of the inmates.”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v.

Palmer, 468 U.S. 517, 526–27 (1984)); see U.S. Const. amend.

VIII. This means that a constitutional violation inheres in a

prison official’s “deliberate indifference” to a substantial risk

of serious harm to an inmate. Farmer, 511 U.S. at 828. A

“deliberate indifference” violation has two components, one

objective and one subjective.

The objective component is that the prisoner must have

been exposed to a harm that was objectively serious. Farmer,

511 U.S. at 834. No one contests that this criterion was met

here. Indeed, Rivers’s violent beating of Balsewicz in the head

is the kind of in-prison assault that “is simply not ‘part of the

penalty that criminal offenders pay for their offenses against

society.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347

(1981)); see, e.g., Brown v. Budz, 398 F.3d 904, 910–11 (7th Cir.

2005).

The subjective component is that the prison official must

have known of and disregarded an excessive risk to the

inmate’s health or safety. Farmer, 511 U.S. at 837–38; LaBrec v.

Walker, 948 F.3d 836, 841 (7th Cir. 2020). Specifically, the

official must have been “aware of facts from which the

inference could be drawn that a substantial risk of serious

No. 19-3062 7

harm exists,” and he must have “draw[n] th[at] inference.”

Farmer, 511 U.S. at 837.

Finally, an official is not liable if he takes reasonable

measures to abate the known risk. Id. at 844. It is undisputed

that Sergeant Pawlyk took no action in response to

Balsewicz’s complaint. And Sergeant Pawlyk does not argue

that his inaction would have been reasonable had he known

Balsewicz continued to face a substantial risk of serious harm

from Rivers after Balsewicz left the showers.

So, the only contested part of Balsewicz’s claim is the

subjective component: Sergeant Pawlyk’s knowledge of a

substantial risk of serious harm to Balsewicz.

A prison official’s subjective knowledge can be shown “in

the usual ways” that facts are demonstrated, “including

inference from circumstantial evidence.” Id. at 842. For

example, if an inmate provides evidence that the risk of

serious harm was obvious, a factfinder could reasonably infer

that the official knew of the risk. Id. Likewise, a factfinder

could typically infer an official’s knowledge from evidence

that the inmate complained to the official about a specific

threat to her safety—so long as the complaint “identifies a

specific, credible, and imminent risk of serious harm and

identifies the prospective assailant,” as opposed to a

complaint that “convey[s] only a generalized, vague, or stale

concern about one’s safety.” Gevas v. McLaughlin, 798 F.3d 475,

480–81 (7th Cir. 2015).

Sergeant Pawlyk maintains that Balsewicz failed to

adduce enough evidence that he knew Balsewicz faced an

ongoing risk of serious harm from Rivers. He says a factfinder

would have to conclude that he, the guard, understood

8 No. 19-3062

Balsewicz’s complaint as communicating only a stale concern

for her safety, not an imminent risk of harm. In his view, the

problem with Balsewicz’s case is not that Rivers’s threat in the

showers amounted to less than a substantial risk of serious

harm; it’s that the threat could only be understood as having

expired before Balsewicz told the guard about it.

We disagree. A reasonable juror could conclude, based on

the submitted evidence, that Sergeant Pawlyk knew the threat

from Rivers was ongoing. To start, Rivers used the imperative

mood and future tense to deliver the threat: “Don’t worry

about it, punk ass h[o]nky! I’ll beat the fuck out of you!” And

he gave no assurance that the threat would wash away by the

time the inmates finished their showers. Even if the threat

were understood as conditional—that is, that Rivers would

beat up Balsewicz only if she “worr[ied] about” Rivers’s

demand not to shower between two of the inmates—

Balsewicz signaled to Sergeant Pawlyk that she indeed

“worr[ied] about it,” by complaining to him about the

incident.

Sergeant Pawlyk points out that Balsewicz has given two

different accounts of what Rivers said, the other version

being, “Don’t worry about it, punk ass h[o]nky, don’t make

me beat the fuck out of you!” This version, he argues,

indicates that Balsewicz needed to do something more in the

shower to trigger the threat’s execution. But we view the facts

in the light most favorable to Balsewicz. See Plumhoff v.

Rickard, 572 U.S. 765, 768 (2014); Daugherty v. Page, 906 F.3d

606, 609 (7th Cir. 2018). And even in this overtly conditional

form, the threat could be understood as ongoing so long as

Balsewicz worried about why Rivers didn’t want Balsewicz to

No. 19-3062 9

shower in a certain stall; and Balsewicz’s complaint to

Sergeant Pawlyk suggests she was so worried.

Next, by Balsewicz’s and other inmates’ accounts included

in the record,3 when Balsewicz complained to Sergeant

Pawlyk about Rivers’s threat, she “appeared agitated and

fearful” and was talking in a “pleadingly assertive matter.”

She did not say that the danger was now over. And she urged

Sergeant Pawlyk not to allow Rivers to shower with her and

the other transgender inmates, signaling that Rivers’s threat

created a future—not a foregone—risk to Balsewicz’s safety.

Adding to her request that Rivers not be allowed to

shower with her in the future, Balsewicz repeated her concern

to another guard during the same shift, asking that guard to

remind Sergeant Pawlyk to report the threat to a supervisor.

Taken altogether, then, the evidence would allow a

reasonable juror to infer, from circumstantial evidence, both

that Sergeant Pawlyk was “aware of facts” indicating the

danger of serious harm to Balsewicz was not yet over and that

Sergeant Pawlyk drew such an inference. Farmer, 511 U.S. at

837. This is not to say that a jury would have to find Sergeant

Pawlyk knew the excessive danger was ongoing. But the

evidence does not compel the opposite finding, either. For this

reason, a genuine issue of material fact exists on an element

of Balsewicz’s deliberate-indifference claim.

Notwithstanding the existence of a genuine issue of

material fact, Sergeant Pawlyk advances another basis on

3 For purposes of summary judgment, Balsewicz’s verified complaint

functions as an affidavit. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017).

10 No. 19-3062

which summary judgment may be granted: qualified

immunity. We turn to that issue now.

B. Qualified Immunity

Under the doctrine of qualified immunity, government

officials are liable for civil damages—and subjected to suit in

the first place—only when their conduct violated “clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Whether an official is entitled to qualified

immunity on a motion for summary judgment turns on

whether the plaintiff has both (1) alleged that the official

committed acts violating a clearly established right and (2)

adduced “evidence sufficient to create a genuine issue as to

whether the [official] in fact committed those acts.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985); see Orlowski, 872 F.3d at 422–

23.

We’ve already determined that Balsewicz demonstrated a

genuine issue as to whether Sergeant Pawlyk—who did

nothing in response to the reported threat—in fact knew that

Balsewicz faced an imminent risk of serious harm. 4 This

leaves the question whether the conduct Balsewicz alleged

(and sufficiently supported with evidence) violated a clearly

established right. We conclude that it did.

When evaluating a qualified-immunity defense, the focus

“is on whether the officer had fair notice that [his] conduct

4Our view of the facts in the light most favorable to the nonmovant

(Balsewicz) applies to our evaluation of whether Sergeant Pawlyk is

entitled to qualified immunity. See, e.g., Plumhoff, 572 U.S. at 768; Orlowski,

872 F.3d at 421.

No. 19-3062 11

was unlawful.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). If

any reasonable officer in Sergeant Pawlyk’s shoes—after

discovering that Balsewicz faced a substantial danger of being

beaten up by Rivers—would have understood that taking no

action to address that danger violated Balsewicz’s right, then

the right was clearly established. See Plumhoff, 572 U.S. at 778–

79. Put another way, if applying the law at that time to the

facts “would have left objectively reasonable officials in a state

of uncertainty,” then immunity is appropriate. Horshaw v.

Casper, 910 F.3d 1027, 1030 (7th Cir. 2018).

It is true that, here, factual uncertainty remains about

whether Sergeant Pawlyk knew Balsewicz faced an imminent,

rather than a lapsed, danger of serious harm. But that is not

the kind of uncertainty that matters. The reason is that we

approach the qualified-immunity inquiry by treating as true

the evidence-supported facts and inferences favoring

Balsewicz. See, e.g., id.; Orlowski, 872 F.3d at 421–22. The

appropriate question, then, is this: Assuming Sergeant

Pawlyk was informed that Balsewicz faced an ongoing threat

from Rivers, did Sergeant Pawlyk’s inaction violate one of

Balsewicz’s clearly established rights?

The answer is yes. Farmer v. Brennan made clear that being

violently assaulted by a fellow inmate in prison is a serious

harm. See Farmer, 511 U.S. at 834; Brown, 398 F.3d at 910–11.

And Farmer also made clear what a prison official must do

when he learns that an inmate faces an excessive danger of

such a harm: take reasonable measures to abate the danger.

See Farmer, 511 U.S. at 832–33, 844–45; see also Horshaw, 910

F.3d at 1030 (“Farmer clearly establishes the governing

rules.”); Velez v. Johnson, 395 F.3d 732, 736 (7th Cir. 2005)

(observing that “[t]here can be no debate” that the right “to be

12 No. 19-3062

free from deliberate indifference to rape and assault” was

clearly established by September 1999).

Cases since Farmer have confirmed that inmates have a

right to have officers take reasonable measures to abate a

known risk of violent assault by a fellow inmate.

For example, in Velez v. Johnson, a pretrial detainee 5

pushed an emergency call button and specifically told a guard

that he was having a conflict with his cellmate; the guard did

nothing in response; and the cellmate assaulted and raped the

complainant. 395 F.3d at 734–36. We recognized that if the

guard appreciated the danger the cellmate posed, the guard’s

inaction violated the detainee’s right to be reasonably

protected from violent assault by another inmate—which was

a clearly established right at the time. Id. at 736.

Similarly, in Gevas v. McLaughlin, an inmate informed

prison officials that his cellmate had threatened to stab him;

the officials took no protective action other than having

previously informed the inmate that he could refuse housing

and reap the disciplinary consequences; and the cellmate

5When Velez was decided, we recognized that, although a pretrial

detainee’s deliberate-indifference claim derives from the Fourteenth

Amendment’s due-process clause rather than the Eighth Amendment,

there is “little practical difference between the two standards”; the Eighth

Amendment test applied when analyzing a § 1983 claim brought under

the Fourteenth Amendment. Velez, 395 F.3d at 735 (quoting Weiss v. Cooley,

230 F.3d 1027, 1032 (7th Cir. 2000)); see Brown, 398 F.3d at 910 (quoting

Henderson v. Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999)). Contra

Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (concluding that

conditions-of-confinement claims brought by pretrial detainees under the

Fourteenth Amendment are subject only to the objective

unreasonableness inquiry identified in Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015)); Miranda v. County of Lake, 900 F.3d 335, 351–52 (7th Cir. 2018).

No. 19-3062 13

stabbed the concerned inmate. 798 F.3d at 485. We held that,

if the officials appreciated that the inmate was in danger of

being stabbed by his cellmate, their inaction violated the

inmate’s right to be protected from the assault, and “[a] prison

official could not logically believe” otherwise. Id.

Accordingly, at the time Sergeant Pawlyk was informed

that Rivers presented an ongoing excessive danger to

Balsewicz, a competent officer in Sergeant Pawlyk’s shoes

would have known that taking no protective action in

response—no additional investigation, no reporting to a

supervisor, no measures to keep Rivers away from Balsewicz,

etc.—violated Balsewicz’s right to be reasonably protected

from a violent beating by another inmate. Given the clear

governing rules set out by Farmer, and given their application

in cases confirming that inaction in like circumstances violates

an inmate’s constitutional right, Sergeant Pawlyk is not

entitled to qualified immunity.

III. CONCLUSION

Balsewicz presented enough evidence for a reasonable

jury to conclude that Sergeant Pawlyk knew Balsewicz faced

an ongoing, substantial risk of serious harm at the hands of

another inmate. She therefore demonstrated a genuine issue

of material fact appropriate for trial. And Sergeant Pawlyk’s

conduct—as alleged and supported by Balsewicz—violated a

clearly established right. So, Sergeant Pawlyk is not entitled

to qualified immunity. We thus REVERSE the district court’s

grant of summary judgment and REMAND for proceedings

consistent with this opinion.