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February 6, 1997

HUBERT HILL, Plaintiff,

The opinion of the court was delivered by: SHADUR

 Hubert Hill ("Hill") originally sued defendants Salvador Godinez ("Godinez"), Mark Franklin ("Franklin") and Dr. Arthur Brewer under 42 U.S.C. § 1983 ("Section 1983") for failing to protect Hill from physical harm and for denying him essential medical treatment during his incarceration at Stateville Correctional Center ("Stateville") in 1992. Hill has since withdrawn his claims against Godinez, and both remaining defendants have now moved for summary judgment. For the reasons set forth in this memorandum opinion and order, the motion is granted as to Hill's denial-of-medical-treatment claim against Dr. Brewer but is denied as to Hill's failure-to-protect claim against Franklin.


 Hill, who has been incarcerated at various prison facilities within the Illinois Department of Corrections since 1984, was at Stateville from September 2, 1992 to June 22, 1994. At the time of the relevant events Franklin was a counselor in the protective custody unit and Dr. Brewer was Medical Director.

 Before he arrived at Stateville Hill had had several prison run-ins with gangs, including among others the North Siders and the Gangster Disciples. For example, in August 1984 he had been placed in protective custody at Menard Correctional Center ("Menard") after he turned in two homemade knives that the North Siders had demanded he make. In February 1987 he was again placed in protective custody there when, as a member of a "prison biker gang" known as the Menard Brotherhood, he refused an order to stab another inmate. In December 1988 he was placed in protective custody yet again after revealing that the North Siders were once more demanding that he make homemade knives.

 Shortly after that Hill became indebted to a member of the Gangster Disciples to the tune of $ 250 after losing at poker. As a result of that gambling debt, the Gangster Disciples threatened him on several occasions from December 1988 until March 1989. Hill was then transferred to Pontiac Correctional Center ("Pontiac") and was placed in protective custody after reporting his past problems with gangs, including the gambling debt. Hill remained in protective custody at Pontiac until he was transferred to Graham Correctional Center in October 1989.

 In January 1990 Hill was sent to Hill Correctional Center ("HCC"), where members of the Gangster Disciples knew about the gambling debt and tried to get him to make "hooch" to pay it off. Hill reported their demand to prison officials and was placed in protective custody. Two years later, after several additional transfers, Hill arrived at Illinois River Correctional Center ("Illinois River"). There a member of the Menard Brotherhood threatened his life. After Hill reported the incident, he was granted a transfer out of Illinois River. Hill arrived at Stateville in September 1992, where he requested placement in the protective custody unit.

 On September 14, 1992 Franklin interviewed Hill about his protective custody request. Just what information Hill gave to Franklin is disputed. According to Hill, he told Franklin about his past placements in protective custody at other facilities and about the gambling debt, and he also said that the Gangster Disciples had a "hit" *fn1" on him. According to Franklin, Hill said only that three years earlier at Menard he had an altercation with the "Folks" (which Franklin understood to mean an unidentified gang) while drunk and that the Folks had a "hit" on him. Franklin contends that he did not determine until after the interview that the Folks were the Gangster Disciples.

 After the interview, Franklin reviewed Hill's "rather large" prison file for about 15 minutes. Whether he read the forms relating to Hill's past placements in protective custody is not clear. In any event, based upon his observation of Hill's physical size and his demeanor during the interview (Hill is not of small stature and did not appear frightened), Hill's inability to identify specifically 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. ...

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