Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:99-CV-647-AS--Allen Sharp, Judge.
Before Flaum, Chief Judge, and Posner and Diane P.
Wood, Circuit Judges.
The opinion of the court was delivered by: Diane P. Wood, Circuit Judge
Joey Peate is serving a sentence at the Miami Correctional Facility in Bunker Hill, Indiana. On July 2, 1999, while confined there, another inmate attacked Peate twice. Although Peate does not blame any prison officials for the first attack, he argues that Sergeant Steve McCann, a correctional officer, violated his rights under the Eighth and Fourteenth Amendments by facilitating and failing to break up the second attack with deliberate indifference to Peate's safety. The district court, after permitting only limited discovery, granted McCann's motion for summary judgment. We conclude that this disposition was premature and therefore reverse the grant of summary judgment.
Peate was in Miami's recreation yard on the afternoon of July 2, 1999. For some reason (undeveloped on this record), Scott McIntyre, another inmate, crept up behind Peate and thwacked him with a mesh laundry bag loaded with rocks, dirt, bricks, and cement that McIntyre had gathered in the yard. Before the day of the attack, McIntyre and Peate had never had an altercation. On the afternoon in question, however, they had already fought once for several minutes until McCann, along with the other prison staff in the yard, broke up the fracas. In order to do so, McCann had called a code "10-10" (offender fight) over his radio to get assistance. Once McCann was able to calm McIntyre down, he took the laundry-bag weapon from McIntyre. McCann then took McIntyre's left arm and escorted him away from Peate and toward the recreation gate.
What happened next is hotly disputed by the parties. What is clear is that McIntyre regained his laundry-bag weapon from McCann. The disagreement is over how he managed to do this. Some witnesses claimed that McIntyre grabbed it from McCann; others said that after a conversation, McCann gave the bag to McIntyre; and finally some recalled that McCann handed the bag off to McIntyre as Peate was charging at both McIntyre and McCann. With the bag restored to him, McIntyre broke away from McCann and attacked Peate with his make-shift weapon once again. Peate also had a weapon of sorts--a golf club from the yard's miniature golf course. It proved to be no match for McIntyre's bag, however; Peate ended up on the losing side of the fight, bleeding profusely. The altercation continued until Major Kimmel, Captain Payne and Lieutenant Batchelor arrived and restrained Peate while McCann restrained McIntyre. Peate maintains that until the three additional officials arrived on the scene, McCann stood by and watched McIntyre continuously beat him.
Peate sustained a dislocated finger and nerve damage in his left hand as a result of the beating. He then filed a pro se complaint on December 9, 1999, alleging that prison officials violated his Eighth and Fourteenth Amendment rights by willfully and intentionally neglecting to protect him from serious bodily injury. The district court dismissed all claims except the Eighth Amendment claim against McCann. McCann then moved for summary judgment on the remaining claims, arguing that the undisputed facts showed that he acted reasonably given the situation. The district court agreed, finding nothing in the record to demonstrate that McCann did anything but break up a fight between two inmates. Peate filed a timely notice of appeal from this judgment, as well as the district court's denial of his discovery requests. Although Peate acted pro se below, he now has counsel appointed by this court.
Peate asserts that McCann violated his duty to protect inmates from a prisoner attack when he re-armed McIntyre and then stood by while McIntyre pummeled Peate with the loaded bag. No one disputes that prison can be a violent place. Nonetheless, prison officials have a duty to take reasonable steps to protect prisoners from this violence; prisoners are not required to live in a violent state of nature where brutal attacks are ignored. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). The Supreme Court has recognized that prisoners may obtain relief under the Eighth Amendment for injuries sustained in prison if the injury is objectively serious and the prison official acted with deliberate indifference to the safety and health of the inmate. Id. at 834. McCann does not argue that Peate's injury was not objectively serious. Instead, he maintains that his behavior was at worst unreasonable and certainly not deliberately indifferent. The district court agreed. We review a district court's grant of summary judgment de novo. Doe v. Howe Military Sch., 227 F.3d 981, 990 (7th Cir. 2000). In doing so, we examine the record in the light most favorable to Peate, the nonmoving party. Id. We may affirm the district court's judgment only if there are no material facts in dispute. Id.
As Farmer held, "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. While this is a high hurdle for a plaintiff, it is not insurmountable; a plaintiff does not have to prove that the officer affirmatively intended harm to the prisoner. Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001). Peate must demonstrate only that "the defendants actually knew of a substantial risk that [the prisoner] would seriously harm him." Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996) (emphasis in original). This is a question of fact that may be established by circumstantial evidence. Farmer, 511 U.S. at 842. On the other hand, McCann is quite right to point out that negligence is not enough to establish a constitutional violation. Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997). Indeed, prison officials who actually knew of a substantial risk to inmate health or safety are free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted, because in that case it cannot be said that they were deliberately indifferent. Farmer, 511 U.S. at 847; Soto v. Johansen, 137 F.3d 980, 981 (7th Cir. 1998). The test of deliberate indifference ensures that the mere failure of the prison official to choose the best course of action does not amount to a constitutional violation. Farmer, 511 U.S. at 844.
McCann maintains that his conduct was reasonable because there was no way for him to predict that McIntyre would attack Peate. The problem with this line of argument is that it does not distinguish between the first and the second attacks, even though Peate was careful to draw exact ly this line in his complaint. If this case were only about the first attack, we would have no trouble agreeing with McCann: he had no personal knowledge of any bad blood between McIntyre and Peate, and so there was no way for him to predict their fight. Nor does Peate's complaint, when read liberally, suggest that other factors should have alerted McCann before the first attack. McCann further argues that as a prison guard, he should not be required to put himself at risk by breaking up a fight between two inmates armed with weapons. This too is true. See MacKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir. 1995) (failing to intervene between inmates fighting with weapons is not deliberate indifference); Arnold v. Jones, 891 F.2d 1370, 1373 (8th Cir. 1989) (if intervening in a prison fight could cause serious injury, guards have no duty to do so as a matter of law).
Nonetheless, this reasoning, also adopted by the district court, speaks only to the first fight. The second fight, which the district court does not mention in its opinion, is another matter. Peate's claim is that McCann was deliberately indifferent when he re-armed McIntyre, minutes after he had stopped the fight. It was the first fight that gave McCann specific knowledge that there was a substantial risk that McIntyre would use the weapon to injure Peate. See Farmer, 511 U.S. at 842.
McCann wants this court to accept his version of events--that Peate attacked McIntyre and that McCann attempted to stop the second fight with CNS spray. The district court did just that. It noted that "there is [ ] nothing in this record to indicate that Sgt. McCann did anything other than to try to break up the fight between these two inmates." But this account is disputed by competent evidence in the record. Several witnesses stated in their affidavits that McCann handed McIntyre the laundry bag of bricks after engaging in a discussion. "I saw the offender McIntyre reach for the net bag from the Sgt. McCann, who gave the bag back to this offender who again started trying to attack Mr. Peate"; "Sgt. McCann picked up the net bag/alleged weapon, then gave it back to the white offender who then attempted to strike offender Peate a few more times." All of these eyewitness statements and more were before the district court by affidavit. While a jury would of course not be required to credit the testimony from the bystander inmates, it was improper for the district court to disregard these statements at the summary judgment stage. Even if, under McCann's version of the fight, he was at ...