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Wilson v. Falk

United States Court of Appeals, Tenth Circuit

December 19, 2017

TERRANCE D. WILSON, Plaintiff - Appellant,
v.
FRANCES FALK; SHERWYN PHILLIP; STEVEN FRANK; JAMES FOX, Defendants - Appellees.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CV-01459-CMA-MJW)

          Brice A. Tondre, Lakewood, Colorado, for Plaintiff - Appellant.

          Robert C. Staley, Office of the Attorney General (Cynthia H. Coffman, Attorney General, and Jennifer S. Huss, Assistant Attorney General, on the briefs), Denver, Colorado, for Defendants - Appellees.

          Before MATHESON, McKAY, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.

         Colorado state prisoner Terrance D. Wilson was stabbed eleven times by a fellow inmate while incarcerated at the Limon Correctional Facility in Limon, Colorado. Having survived the attack, Mr. Wilson brought this action under 42 U.S.C. § 1983 alleging that

          Frances Falk, James Fox, Steven Frank, and Sherwyn Phillip-each an employee of the Colorado Department of Corrections ("CDOC")-violated his Eighth Amendment rights by failing to protect him from the assault. The district court granted summary judgment in favor of the defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm as to defendant Falk, but reverse as to defendants Fox, Frank, and Phillip.

         I. BACKGROUND

         This case involves a dispute between the Crips and the Surenos, two rival gangs. Mr. Wilson, a former affiliate of the Crips, is currently serving a thirty-two-year prison sentence in connection with the 2011 homicide of Nathan Engle, a purported Surenos affiliate. While awaiting trial, Mr. Wilson was detained in the Larimer County Detention Facility ("Larimer") along with Christopher Green, whom Mr. Wilson recognized as a leader of the Surenos. Mr. Green allegedly told two people close to Mr. Wilson that the Surenos were making shanks in order to kill Mr. Wilson in apparent retaliation for Mr. Engle's death. And, indeed, Mr. Wilson reports that he was assaulted on three occasions while detained at Larimer-once on August 14, 2011, by Mr. Green and an unknown Sureno affiliate, and twice on October 21, 2011, first by an inmate named Charles Cousino, purportedly at Mr. Green's request, and later the same day by an inmate named Feliciano Carillo, whom Mr. Wilson describes as "a Sureno shot caller." Aplt. App'x 135-36. Mr. Wilson filed grievances with respect to each assault.

         Mr. Wilson was convicted in January 2012, and the following month he was transferred from Larimer to the Denver Reception and Diagnostic Center ("DRDC"), where he asserts that he was yet again attacked by a Sureno. During his time at DRDC, Mr. Wilson states that he completed intake forms in which he listed his enemies and documented his "psychological fear of Mexican gang members." Id. at 136. On April 9, 2012, Mr. Wilson was transferred from DRDC to the Limon Correctional Facility ("Limon"), where he would continue serving his thirty-two-year sentence. Within a day of arriving at Limon, Mr. Wilson participated in orientation, an event that he used as an opportunity to disclose his concern about the Surenos in general and Mr. Green, Mr. Carillo, and Mr. Cousino in particular. Mr. Wilson alleges that shortly after the orientation he spoke with defendant Falk, who he understood to be the warden at Limon, about his concerns with the Surenos and the previous attacks. Although Ms. Falk does not recall ever meeting or talking to him, Mr. Wilson says that she advised him to talk to a lieutenant and case manager about the Surenos.

         Mr. Wilson was preliminarily assigned to Unit 1, the prison's transition unit designated for inmates transferring in or out of Limon or who otherwise require temporary placement. About one week after arriving at Unit 1, Mr. Wilson was reassigned to Unit 3. There are six living units at Limon; each living unit has three pods separated by walls, and each pod in turn has three tiers. Inmates are generally not permitted to leave the pod to which they are assigned. In general, prison officials at Limon do not attempt to separate gangs from each other. Instead, housing assignments attempt to balance the number of gang members assigned to each living unit. Once in Unit 3, Mr. Wilson claims that he "came face to face with" his old nemesis Mr. Green, who seemingly followed a similar path from Larimer to Limon and was now "the Sureno shot caller" at the Limon facility. Id. Mr. Wilson says that he advised defendants Lieutenant Fox and Sergeant Frank "of the issues between me and Green, " and that Mr. Green was thereafter placed on the second level of the same pod.[1] Id.

         On April 17 and April 19, Mr. Wilson claims to have met with defendant Phillip, his case manager. On both occasions Mr. Wilson states that he informed Mr. Phillip of "the Sureno issue" and "requested transfer to another facility." Id. But after those two meetings Mr. Phillip allegedly "refused to discuss the issue of protection . . . from the Surenos." Id. Mr. Wilson complained about Mr. Phillip's alleged recalcitrance to Commanding Officer Joshua Chase, who advised Mr. Wilson to file "kites, " shorthand for prison forms printed on yellow paper by which a prisoner can make written requests to meet with a prison official.[2] Id. at 79, 136, 144. Mr. Wilson thereafter submitted at least ten kites, which he either gave to Mr. Chase or placed in the "kite box." Id. at 136. Sometimes Mr. Wilson asked friends to place his written kites in the kite box for him.

         On June 9, 2012, Mr. Wilson was allegedly attacked by a fellow inmate named Manuel Diaz and another unknown person. Mr. Diaz allegedly followed Mr. Wilson into his cell and stabbed him with a long rusty nail, inflicting deep cuts along Mr. Wilson's chest, stomach, arms, and head. Mr. Wilson claims that he was able to subdue Mr. Diaz, at which point "a group of Surenos" rushed into his cell, carried Mr. Diaz away, and warned that they would "finish killing" Mr. Wilson if he reported the attack. Id. at 137. Mr. Wilson thereafter continued to discreetly put kites in the kite box and repeatedly asked Mr. Chase to talk to Mr. Phillip. He also asked his friends to talk to prison officials.

         On June 21, 2012, Mr. Wilson claims that Mr. Green, backed by at least fifteen members of the Sureno and Pica gangs, attempted to throw him over a second floor railing, purportedly because they had heard he was talking to the authorities about Sureno threats and attacks. Other prison inmates are said to have intervened to prevent Mr. Wilson from going over the railing. Later that night, however, two Surenos allegedly attacked Mr. Wilson in his cell, with additional one-on-one Sureno attacks following on June 22 and 23. Mr. Wilson states that he wrote kites documenting all of these attacks and that his friends put them in the kite box on his behalf. [3]

         At some unspecified point in time, Mr. Wilson allegedly asked Mr. Phillip, his case manager, not to let him be placed in Unit 3. Mr. Wilson also asked Mr. Frank and Mr. Fox not to let him be assigned to Units 2, 3, or 4, all of which housed a large number of Surenos. One of Mr. Wilson's fellow inmates, Edward Drake, heard Mr. Wilson make this latter request. Nevertheless, Mr. Wilson was assigned to Unit 3 despite the purported availability of beds in Units 1 and 5. Another fellow inmate, Nathan Nulle, allegedly turned in "a stack of ...


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