Lionel Gibson v. CHELSEA FOX and RYAN GROVE

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 24, 2025*
Decided February 24, 2025
Before
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-2055
LIONEL GIBSON,
Plaintiff-Appellant,
v.
CHELSEA FOX and RYAN GROVE,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:21-cv-837-JD
Jon E. DeGuilio,
Judge.
O R D E R
Lionel Gibson sued two staff members at the Indiana prison where he was
formerly incarcerated. He alleged that they violated his Eighth Amendment rights by
failing to protect him from an attack. See 42 U.S.C. § 1983. The district court granted
summary judgment for the defendants, concluding that they had taken reasonable steps
* We have agreed to decide this 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2055 Page 2
to ensure Gibson’s safety, and so no reasonable jury could find that they were
deliberately indifferent. We affirm.
We recite the facts in the light most favorable to Gibson, the party opposing
summary judgment, and where a fact is disputed, we credit Gibson’s version over the
defendants’. See LaBrec v. Walker, 948 F.3d 836, 839 (7th Cir. 2020). In 2013, gang
members at Gibson’s prison learned that he was a confidential informant and then
threatened him with violence. Because of the threats, prison officials ordered that
Gibson be separated from two prisoners: William O’Bryan and Calvin Lyons. Since
then, Gibson has been transferred to various other Indiana prisons; at each one, his
identity as an informant was eventually exposed, and he was threatened or harmed.
Gibson was transferred to Miami Correctional Facility in Bunker Hill, Indiana.
By November 2019, both O’Bryan and Lyons were housed there too, but the prison did
not impose any formal separation between them and Gibson. And again, word
circulated at Miami that Gibson had been a confidential informant. Another prisoner
was assaulted after purportedly warning jail staff that Gibson—“the inmate occupying
439 in K”—was to be killed. After the assault, the prisoner told Gibson about the threat.
The next day, Gibson discussed his safety concerns with Chelsea Fox and Ryan
Grove, members of the prison’s case management team. Gibson told Fox and Grove
about his prior problems with O’Bryan and Lyons, showed them documents suggesting
that he should be separated from them, and informed them about the plan to have him
killed. He asked them to transfer him to Housing Unit I for his safety. He did not ask for
protective custody, which would place him in the Restricted Housing Unit; he believed
that Unit I was more secure than his current unit but would still allow him access to
programs (such as the college courses he was taking). Fox and Grove looked up
Gibson’s separatee list and did not see O’Bryan or Lyons on it. Gibson says that they
also viewed his file, where they would have seen notations that he had been exposed as
an informant at other facilities.
Fox and Grove told Gibson that they would coordinate his transfer that day, and,
in the meantime, he should “act normal.” Later that morning, Fox emailed the manager
of Gibson’s housing unit, requesting his transfer to Unit I, though she did not mention
the threat to Gibson’s life. (The manager responded a few days later, forwarding the
request to another official but expressing doubt that the move could occur.) Later that
afternoon, Grove came to Gibson’s cell and told him that they were “working on a
move within the hour.” Fox’s and Grove’s shifts ended that afternoon, and they left the
prison before Gibson was moved.

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No. 24-2055 Page 3
That night, several inmates attacked Gibson—who had not been moved—and he
was stabbed in the hand. After the attack, another prison official secured Gibson’s
transfer to Unit I. Gibson was later transferred to another prison and designated for
statewide protective custody.
Gibson then sued Fox and Grove, alleging that they violated his rights under the
Eighth Amendment when they failed to protect him from the attack. See 42 U.S.C.
§ 1983. The defendants moved for summary judgment, arguing that Gibson could not
show that they were deliberately indifferent to his serious risk of harm because they
responded to his concerns reasonably. The district court agreed and granted their
motion for summary judgment.
On appeal, Gibson contests this ruling, which we review de novo. See Hunter v.
Mueske, 73 F.4th 561, 565 (7th Cir. 2023). To create a triable claim under the Eighth
Amendment for failure to protect, Gibson had to marshal sufficient evidence from
which a reasonable jury could find that (1) he was exposed to an “excessive” risk of
harm that actually materialized; (2) the defendants had actual knowledge of that risk;
and (3) the defendants’ response was so inadequate as to constitute deliberate
indifference toward the risk. Id.
Although Gibson contends that the district court overlooked evidence
establishing that Fox and Grove had actual knowledge of the risk that Gibson would be
attacked, it is not necessary to address that element of the claim. Even if Fox and Grove
knew that Gibson faced an excessive risk of harm, no reasonable jury could find that
they were deliberately indifferent to that risk.
Failure to protect a prisoner from a known risk of harm constitutes an Eighth
Amendment violation only if the defendants act with deliberate indifference—
“something approaching a total unconcern for inmate safety.” Id. at 566. Here, however,
the undisputed evidence shows that the defendants took measures “reasonably
calculated” to address the risk Gibson faced, even though those actions ultimately did
not prevent his injury. Id. Within hours of Gibson informing them of his concerns, the
defendants sought authorization to move Gibson to the housing unit he requested and
followed up with him later that afternoon to convey their belief (based on what, we do
not know) that he would be moved “within the hour.”
Gibson counters that the defendants’ actions were callously inadequate, not
reasonable, because they left the prison before ensuring he was moved or otherwise
protected. In support, he points to expert testimony submitted in another of Gibson’s

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lawsuits that suggests that prison officials should order alternative housing or
protective custody whenever an inmate faces a credible threat. But Gibson produced no
evidence that Fox and Grove could move him to Unit I, and they cannot be liable for
failing to do something they had no authority to do. See id. Further, Gibson does not
contend that Fox and Grove were the only staff members who were aware of the threat;
indeed, he asserts that other staff members knew, too. Therefore, it was reasonable for
Fox and Grove to do what they could: convey Gibson’s request to a person with the
authority to change his housing unit. His testimony suggests that they promptly asked
for his move to Unit I and believed the move was in the works when they left; therefore,
Gibson would be unable to prove at a trial that they had a culpable state of mind.
In his reply brief, Gibson suggests alternative actions that Fox and Grove could
have taken to assure his safety, such as placing him in segregation, locking him in his
cell, or telling supervisors of the threat. But arguments raised for the first time in a reply
brief are waived. White v. United States, 8 F.4th 547, 552–53 (7th Cir. 2021).
AFFIRMED

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