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Tenth Circuit Reverses Dismissal of Gang Member’s Failure-to-Protect Lawsuit

by Matt Clarke

On December 19, 2017, the Tenth Circuit Court of Appeals reversed the dismissal of a federal civil rights suit brought by a prisoner who alleged Colorado Department of Corrections (CDOC) officials ignored his warnings that rival gang members intended to kill him, and his requests not to be housed with large numbers of the rival gang.

Terrance D. Wilson, a member of the Crips, is serving a 33-year sentence in the CDOC for the murder of a member of the Surenos, a rival gang. While in jail, Wilson learned that the Surenos, led by Christopher Green, were making shanks to kill him in retaliation. He was attacked three times while at the Larimer County Detention Center.

After arriving at the CDOC’s Denver Reception and Diagnostic Center, Wilson was assaulted by a Surenos member. He told intake staff about his problems with the rival gang and was transferred to the Limon Correctional Facility (LCF).

According to Wilson, soon after arriving at LCF he encountered Green, who was the Surenos’ local shot caller at that prison. He informed intake Lieutenant James Fox and Sgt. Steven Frank about “the issues” between him and Green. He also told his case manager, Sherwyn Phillip, and requested a transfer to another facility, but Phillip refused to discuss the matter. Wilson repeatedly asked Fox, Frank and Phillip to change his housing location to one where there were fewer Surenos members. Even though other prisoners confirmed the threat to Wilson’s life, his requests were ignored.

On June 9, 2012, Wilson was attacked in his cell by Manuel Diaz and another prisoner. He was stabbed with a long, rusty nail in his chest, stomach, hands and head. According to Wilson, after he overpowered Diaz, “a group of Surenos” rushed into his cell and told him they would “finish killing” him if he reported the assault.

Twelve days later, Wilson said a large number of Surenos tried to throw him off the second tier railing because they heard he had reported the previous assault. He told prison officials about that attack and reiterated his request for a new housing assignment or transfer, but was ignored. Likewise, his reporting of subsequent attacks by the Surenos on June 21, 22 and 23 were ignored.

Diaz attacked Wilson again on July 21, 2012, stabbing him 11 times in the heart, lungs, head and neck. Wilson then filed a federal civil rights complaint alleging that Assistant Warden Frances Falk, Lt. Fox, Sgt. Frank and Phillip had violated his Eighth Amendment rights by failing to protect him from the Surenos. The district court granted the defendants’ motion for summary judgment and, with the assistance of Lockwood attorney Brice A. Tondre, Wilson appealed.

The Tenth Circuit upheld Falk’s dismissal from the suit as Wilson had only encountered her one time and she had advised him to tell his case manager and lieutenant about his problems with the Surenos. Frank, Fox and Phillip filed affidavits stating they could not recall Wilson ever informing them about his issues with the rival gang. Wilson countered with his own sworn affidavit and affidavits from two other prisoners, saying they had told the defendants of the attacks and continuing danger from the Surenos multiple times.

The appellate court held that, viewed in the light most favorable to Wilson, the defendants were aware of a substantial risk of serious harm which they failed to prevent, rendering summary judgment inappropriate.

Because genuine issues of material fact existed as to whether the defendants were aware of the substantial risk of harm to Wilson, the Court of Appeals reversed the district court’s summary judgment order except with respect to Falk, and remanded the case for further proceedings. It remains pending. See: Wilson v. Falk, 877 F.3d 1204 (10th Cir. 2017). 


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Related legal case

Wilson v. Falk