Inmate has claim against prison for gang-related attack

The Court of Appeals finds that an inmate who was attacked by a gang member can sue prison officials for deliberate indifference in failing to protect him from the attack. This case brings us the first dissenting opinion from one of the newest judges on the Second Circuit. The majority/dissent dispute turns on how the judges think a jury may interpret the evidence.

The case is Lewis v. Siwicki, issued on December 6. Lewis was in a maximum security prison that houses the most violent and dangerous inmates in Connecticut. He was also a gang member. A lieutenant learned that another gang member was threatening Lewis because he was accused of violating Bloods protocols. A gang member had decided that Lewis "was done." The lieutenant told plaintiff that "an assault was going to be against him." In September of that year, jail officials told Lewis that his safety cold be in "jeopardy" and that another gang member was "going to attack him." In November, a Bloods member attacked Lewis in the recreation yard with a piece of metal, inflicting serious wounds to his face and neck.

The majority (Katzmann and Newman) says Lewis can prove his deliberate indifference claim at trial. This reverses summary judgment in the district court, which misapplied the Supreme Court's seminal case on this issue, Farmer v. Brennan, 511 U.S. 825 (1994), which provides a two-part test: plaintiff must show he faced a substantial risk of serious harm, and plaintiff must show that prison officials were deliberately indifferent to that risk. The district court interpreted Farmer to mean the prison official must know the inmate faced serious harm. That is not what Farmer says, the majority concludes; "the first Farmer factor, substantial risk of serious harm, depends not on the officials' perception of the risk of harm, but solely whether the facts . . . show that the risk of serious harm was substantial."

Squaring away that issue, the majority (over Judge Park's dissent) says there was nothing vague about the threat that Lewis faced. Officials knew an assault was going to be against him," that his safety could be in "jeopardy," that a gang member was "going to attack" Lewis and there was an order that Lewis "was done." The Court says "there was nothing uncertain about this evidence." While the district court (and Judge Park) also said plaintiff has no case because there was a four-month interval between the jail officials' knowledge of the threat to plaintiff and the attack, in context, that was not too long a time-gap, particularly since everyone involved was in a high-security prison with violent inmates, including those "identified as threats to the safety of other prisoners." The majority notes that it may take some time for the aggressors to acquire their weapon and an opportunity to use it.

Plaintiff can also show deliberate indifference. While the district court (and Judge Park) says there can be no indifference because the jail practiced security measures such as handcuffing inmates whenever they left their cells (the inmate who attacked plaintiff somehow slipped through the cuffs) and they were always searched before they entered the prison yard, the jury can rule in plaintiff's favor because the jail did not place Lewis in a solitary recreation yard (which would have limited any opportunity for violence from another inmate) and the jail could have even transferred Lewis out of the institution completely.