any inmate at Stateville who was a threat to him and Hill's level of "institutional sophistication" (that is, his experience with prison life), Franklin denied Hill's request.
That resulted in Hill's placement in Unit X, where inmates who had been denied protective custody were housed while they appealed that decision to the Prison Review Board. There Hill was placed on an eight-cell gallery in which each cell housed two inmates. Hill was familiar with gang colors, symbols and clothing, and on that basis he recognized one of the two inmates already in his gallery as a Gangster Disciple. In the days that followed three more Gangster Disciples were assigned to the gallery until all the cells had been filled.
On October 11, 1992 the inmates in Hill's gallery were released from their cells for "Day Room," a recreation period. Cells in Unit X had to be unlocked by a guard with a key, and for Day Room recreation that was done in such a manner that all inmates in a gallery were released from their cells into the hallway virtually simultaneously. That day two inmates assaulted Hill and three others assaulted his cellmate. One of the two inmates who attacked Hill was known to prison authorities as a Gangster Disciple, but the other had no reported gang affiliation.
Hill suffered a broken nose and numerous cuts and bruises. He was taken to the Stateville Health Care Unit ("Health Care") for treatment and remained there for ten days. When he first saw a doctor the day after the assault, that doctor recommended that he be seen by an ear, nose and throat specialist for treatment of a broken nasal bone. On October 16, 1992 Hill was seen by such a specialist, Dr. Robert J. Kramer, who prescribed nasal surgery. He noted in Hill's chart that Hill had a nasoseptal fracture with an obstruction on the left side and would need a septoplasty. Dr. Kramer also told the Health Care staff that Hill should have the surgery within seven or eight days so that the broken bone in Hill's nose would not set on its own, failing which prompt surgery the bone would have to be re-broken during any later surgery. That request was recorded by a Health Care staff member.
Hill swears that he saw Dr. Brewer on October 21 and November 4, 1992 and told him of Dr. Kramer's recommendation of prompt surgery. Dr. Brewer denies that he saw Hill on those occasions and contends that he first learned of and approved Dr. Kramer's recommendation on November 18. Shortly thereafter Hill contracted an eye infection that required postponement of the surgery. There is a dispute as to when the eye infection cleared up: Hill says it was on January 8, 1993, while defendants contend it was March 26, 1993. Hill further says that he sent Dr. Brewer a letter about the surgery in February 1993, enclosing a copy of Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Hill did not have the septoplasty until April 6, 1993, and his nasal bone had to be re-broken during the operation, something that Hill claims caused him additional pain. It is undisputed that Hill's nose has healed completely and that he suffers no permanent damage to it.
Hill's Third Amended Complaint ("TAC") sets out a claim of failure to protect against Franklin (Count I) and failure to provide adequate medical care against Dr. Brewer (Count II). Although the TAC was framed against defendants in both their official and individual capacities, Hill has withdrawn his official-capacity claims as barred by the Eleventh Amendment. Hill has also withdrawn an intentional infliction of emotional distress claim (Count III).
Summary Judgment Principles
Rule 56(c) permits summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." For that purpose this Court does not weigh the evidence submitted by the parties or determine the truth where a conflict exists ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). All facts must be viewed and all reasonable inferences drawn in the light most favorable to the non-movant ( Transamerica Ins. Co. v. South, 975 F.2d 321, 327 (7th Cir. 1992)). "If no reasonable jury could find for the party opposing the motion, it must be granted" ( Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995), citing Anderson, 477 U.S. at 248)).
Under those principles each defendant's Rule 56 motion will be viewed through a lens favoring Hill. This opinion will first address Franklin's motion, then will turn to Dr. Brewer's.
Failure To Protect Hill
Under the Eighth Amendment
"prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners" ( Farmer v. Brennan, 511 U.S. 825, 833, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994)). But "an Eighth Amendment violation exists only if 'deliberate indifference by prison officials effectively condones the attack by allowing it to happen'" ( Langston v. Peters, 100 F.3d 1235, 1237 (7th Cir. 1996), quoting Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996)). Langston, id., again quoted Haley to amplify that standard:
Deliberate indifference in the prison context requires: "First, the danger to the inmate must be objectively serious, posing a substantial risk of serious harm. Second, the prison official must have a sufficiently culpable stated of mind -- one of 'deliberate indifference' to inmate health or safety." Haley, 86 F.3d at 640-41 (citing Farmer, 511 U.S. at , 114 S. Ct. at 1977). ... "It is not enough that the official 'should have known' of a substantial risk or that a reasonable officer in the situation would have known of the risk." Id. (quoting Farmer, 511 U.S. at , 114 S. Ct. at 1979).