TERRANCE D. WILSON, Plaintiff - Appellant,
FRANCES FALK; SHERWYN PHILLIP; STEVEN FRANK; JAMES FOX, Defendants - Appellees.
from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-01459-CMA-MJW)
A. Tondre, Lakewood, Colorado, for Plaintiff - Appellant.
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.
MATHESON, McKAY, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
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
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.
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
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.
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. Id.
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. 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.
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.
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. 
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 ...