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Second Circuit Vacates Summary Judgment on Connecticut Prisoner’s Failure to Protect Claim

Connecticut prisoner Christopher J.M. Lewis was a member of the PIRU or PIRU Bloods gang. He was housed in a maximum-security prison where all prisoners are confined to their cells except for one hour of recreation in a small prison yard.

Lewis was designated as a gang member who posed a threat to the general population, assigned to the Security Risk Group Threat Member (SRGTM) program and confined in the Phase 1 area. Phase 1 prisoners must be strip searched and handcuffed behind their back when escorted to the yard.

In July 2010, gang intelligence supervisor Lieutenant Brian Siwicki intercepted a written communication, accusing Lewis of disagreeing “with ‘PIRU Bloods’ rules” and accusing him of breaking them. Siwicki learned that PIRU leader Christian Mulligan had decided that Lewis “was done.”

In August or September 2010, Siwicki informed Lewis that he was going to be assaulted. Siwicki and Captain David Butkiewicus later told Lewis that they were aware of the July 2010 incident, that his safety could be in “jeopardy” and that a PIRU member was “going to attack” him.

On November 25, 2010, PIRU member Nicholas Trabakoulos attacked Lewis in the recreation yard with a 4-inch piece of metal, inflicting serious wounds to his face and neck. Although Trabakoulos was handcuffed when he entered the yard, he was able to slip one of his hands out of the handcuffs. Siwicki’s investigation revealed that the assault was committed pursuant to Mulligan’s standing order.

Lewis brought federal suit against Siwicki and Butkiewicus, alleging that they violated his rights under the Eighth Amendment by failing to protect him from Trabakoulos’ attack after learning of the intended PIRU hit.

The district court dismissed, finding that “nothing happened for nearly six months,” when only four months had elapsed between the July threat and November assault. The Second Circuit vacated the dismissal and remanded for further proceedings.

On remand, the district court granted defendants summary judgment, concluding that Lewis failed to create “a genuine dispute as to any material fact” as to either a substantial risk of serious harm or deliberate indifference of either Siwicki or Butkiewicus under Farmer v. Brennan, 511 US 825 (1994). See: Lewis v. Siwicki, USDC No. 3: l 3-cv-495, 2017 WL 4286300 (D. Conn. Sept. 27, 2017)(Lewis III).

The Second Circuit reversed, accepting the government’s concession that the district court misapplied the “substantial risk of harm” prong of the Farmer test. “The first Farmer factor, substantial risk of serious harm, depends not on the officials’ perception of the risk of harm, but solely on whether the facts, or at least those genuinely in dispute on the motion for summary judgment, show that the risk of serious harm was substantial,” the Court explained.

The court also rejected the district court’s conclusion that the evidence was “uncertain and ambiguous.” Finally, the four-month delay between July and the November assault did not preclude a substantial risk of harm finding.

“Although a prison gang member planning to carry out a gang leader’s order to see to it that another gang member is ‘done’ might act soon, he might also need at least a few months to obtain both a weapon and an opportunity to use it,” the court found.

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Related legal case

Lewis v. Siwicki