James D. Green v. Brian Foster

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 4, 2023*
Decided May 15, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1543
JAMES D. GREEN,
Plaintiff-Appellant,
v.
BRIAN FOSTER, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 21-CV-053
Stephen C. Dries,
Magistrate Judge.
O R D E R
James Green was extorted by fellow prisoners who threatened to beat him if he
did not fund their canteen accounts. He informed prison staff that “guys” were doing
this to him, but they did not address the issue, so Green paid for his safety. When he
stopped doing so two years later, another prisoner attacked him. Green sued, asserting
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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that prison staff violated his rights under the Eighth Amendment by failing to protect
him. The district court entered summary judgment for the defendants. Because no
reasonable jury could find that any defendant was deliberately indifferent, we affirm.
We present the facts from the record in the light most favorable to Green.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). While in Wisconsin’s
Waupun Correctional Institution in 2017, Green, who was apparently rumored to be an
informant, began receiving anonymous threats. The threats promised physical violence
unless he purchased and turned over commissary items or had his family members
deposit money into other prisoners’ canteen accounts. Green does not know who was
behind the threats, in part because he made his payments through intermediaries.
Sometime between 2017 and 2019, Green had urine thrown on him in his sleep because
(he believes) he had not fully satisfied the extortioners’ demands.
Green reported the extortion to three prison officials. In June 2017, he went to
Bret Mierzejewski, a member of Waupun’s gang task force, and Mierzejewski told
Green he would look into it and try to change Green’s housing assignment. But that was
the last that Green heard from Mierzejewski about it. Green next notified Jeremy
Westra, his housing unit’s supervisor, sometime in 2018. Westra, too, had an initial
conversation with Green, assured Green he would look into the threats and see what he
could do, and did nothing. The extortion continued, so Green wrote to the warden at
the time, Brian Foster. Foster also took no action. Green never identified the extortioners
or the middlemen who collected payments by name, gang affiliation, housing unit, or
otherwise; he referred to them collectively as the “guys.”
Green moved between housing units (for other reasons) five times in two years
without the threats abating. Then, sometime in 2019, he decided to stop paying off the
other prisoners. Fearing retaliation, he wrote in advance to the defendants at least three
times—in January, June, and August. The precise content of these letters is not in the
record, but Green attests that he informed the defendants that he planned to stop
paying and that he wanted to be protected. Nothing was done to protect Green.
On September 2, 2019, another prisoner, D.T., ran into Green’s cell and began
attacking him. D.T. yelled, “time to pay up n[*****].” Green fought back and eventually
gained the upper hand. Guards intervened to stop the fight, incapacitating Green with
foam and tackling him. While being subdued, Green banged his knee against a metal
railing. This injury required physical therapy and still causes him pain.

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Green sued Mierzejewski, Westra, and Foster under 42 U.S.C. § 1983, alleging
that they knew he was at risk of an attack and did nothing to stop it, violating Green’s
rights under the Eighth Amendment. A magistrate judge presided by consent of the
parties. 28 U.S.C. § 636(c). In a sworn discovery response, Westra stated that he did not
remember receiving any letters from Green, but in a later declaration, Westra attested
that he remembered getting at least one piece of correspondence from Green.
Green moved for summary judgment, attaching as evidence prison records and
three affidavits from fellow prisoners. Each of the prisoners explained that: Green had
told them about the extortion and his fears; they had told him to write prison officials
with his concerns; they had seen him write and send those concerns to prison staff (in
January, June, or August of 2019); and they had all (to some degree) witnessed the
assault and had heard D.T. exclaim “time to pay up n[*****].”
The defendants also moved for summary judgment, based primarily on their
declarations and the absence of any record of letters communicating specific threats or
any formal request for a special housing placement, which comes with various
requirements. Mierzejewski and Westra each recalled Green telling them his concerns in
some manner, but attested that it was impossible to investigate because Green did not
identify his extortioners. Foster testified that he remembered Green writing to him and
that his normal practice was to refer reports of threats to the security director.
The district court granted the defendants’ summary judgment motion and
denied Green’s. It took as given that Green was exposed to an objectively serious harm,
see Brown v. Budz, 398 F.3d 904, 910–11 (7th Cir. 2005), but explained that Green’s
communications were too vague to trigger a duty to protect. Green admitted that he did
not specifically identify the extortioners; thus, the district court concluded, no
reasonable jury could infer that any defendant was liable for failing to protect him from
the attack he eventually suffered.
On appeal, Green contends that fact disputes should have precluded summary
judgment for the defendants here. We review the district court’s decision de novo. Sinn
v. Lemmon, 911 F.3d 412, 419 (7th Cir. 2018). A duty to protect arises if a prisoner faces
an objectively serious harm (including a beating), and a prison official has actual
knowledge of the impending harm and does not protect the prisoner. Gevas v.
McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015).
The problem for Green is that he cannot rebut the defendants’ evidence that they
did not have enough information to substantiate a threat of violence that they could act

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on. We look to see if a prisoner has identified “a specific, credible, and imminent risk of
harm” and the “prospective assailant.” Gevas, 795 F.3d at 481. True, Green repeatedly
informed them of the threats, but he said only that he feared being attacked at some
unknown time for not paying unknown extortioners. This is puzzling because the
record indicates that, at a minimum, Green must have had some inkling as to who some
of the intermediaries were or some identifying information linked to the commissary
accounts in question. But as far as we can tell from the record, he never fully provided
that information to the defendants.1
Green unpersuasively responds that, even if he could not identify the actual
extortioners, other facts support an inference that the defendants knew about or should
have discovered the risk and investigated it. He emphasizes that, for years, he told the
defendants that he was labeled an informant and was being extorted, and he told them
in advance that he decided to stop paying. But even if the defendants could have done
more to investigate, this information, as we have already said, did not give the
defendants the notice needed to protect him from the attack that occurred. See Giles v.
Tobeck, 895 F.3d 510, 514 (7th Cir. 2018) (guard’s actions did not cross line from
“negligently enabling the attack to recklessly condoning it”).
Further, Green asserts, the defendants knew about the urine attack, and knowing
about a preceding attack, even without knowing who did it, shows deliberate
indifference to further violence. Green is correct that it is not always required for a
prisoner to point to “who the individual attackers would be.” Sinn, 911 F.3d at 422. But
in Sinn, the threat came from a specific group, the attack in question followed within
days of a previous one, and other factors suggested further danger was imminent. By
contrast, it is not clear here when the urine incident happened, or when or whether
Green told the defendants about it. A reasonable jury could not infer that the
defendants knew that another attack was imminent and did nothing to protect Green.
Green also insists that Mierzejewski and Westra must have found his reports
specific enough to be actionable because both initially told him that they would
investigate. But even if they had, by September 2019—when the attack happened—the
information he had communicated to Mierzejewski (in 2017) and Westra (in 2018) was
1 This is not a case where a prisoner, who has no investigatory leads, conveys
everything that he or she knows to the correctional officers. Whether, under such facts,
correctional officers have an obligation to perform some type of an inquiry of credible
threats is not before us today.

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too “stale” to give notice of an imminent attack. Gevas, 798 F.3d at 480–81. True, Green
also sent letters in 2019, but, again, these were descriptions of his fears and unspecific
requests for “protection,” which did not give the notice that would allow them to
protect him from a specific person or group of prisoners.
Green next argues that the district court should have barred Westra’s declaration
under the “sham affidavit” rule because, in saying that he remembers correspondence
with Green, Westra contradicts a sworn interrogatory answer. But Green does not
demonstrate that this was anything more than Westra correcting “a memory lapse.”
Cook v. O’Neill, 803 F.3d 296, 298 (7th Cir. 2015). Further, the sham affidavit rule applies
when a litigant uses an affidavit to drum up a fact dispute through new testimony; here,
Westra’s more recent testimony supported Green, so Green suffered no prejudice.
Finally, Green insists that the court was biased against him by accepting the defendants’
evidence and ruling in their favor. This is nothing more than a disagreement with the
magistrate judge’s legal conclusions, and adverse rulings alone rarely establish bias.
See Liteky v. United States, 510 U.S. 540, 555 (1994).
We have considered Green’s remaining arguments, and none has merit.
AFFIRMED

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