Willie Blackmon v. George Lombardi

United States Court of Appeals
For the Eighth Circuit
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No. 13-1503
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Willie Blackmon
lllllllllllllllllllll Plaintiff - Appellant
v.
George Lombardi; Scott Lawrence, Warden; Sandra Jimmerson, Assistant
Warden; Doris Falkenrath, FUM HU3; Brock Van Loo, FUM HU16; Mark
Himebrook, Laundry Manager; Alan Earls; Librarian of Algoa Correctional
Center; Ronald Luebbert
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: July 7, 2013
Filed: August 21, 2013
[Unpublished]
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Missouri inmate Willie Blackmon appeals the preservice dismissal of his civil-
rights complaint. He claimed that defendants, all of whom were employees of Algoa

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Correctional Center (ACC) or the Missouri Department of Corrections, violated his
constitutional rights during his ongoing incarceration at ACC. We grant Blackmon’s
motion to proceed in forma pauperis. See Henderson v. Norris, 129 F.3d 481, 483-85
(8th Cir. 1997) (per curiam). Upon de novo review, see Moore v. Sims, 200 F.3d
1170, 1171 (8th Cir. 2000) (per curiam); Cooper v. Schriro, 189 F.3d 781, 783 (8th
Cir. 1999) (per curiam), and considering Blackmon’s pro se status and the early stage
of this litigation, we hold for the following reasons that reversal in part is warranted,
see Bradley v. Looten, 450 Fed. Appx. 558, 559 (8th Cir. 2012) (unpublished per
curiam) (in reversing preservice dismissal of some of inmate’s claims, noting early
stage of litigation); Whitson v. Stone Cnty. Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010)
(pro se complaint must be liberally construed).
We first conclude that Blackmon sufficiently alleged a First Amendment
retaliation claim against defendants Brock Van Loo, Mark Himebrook, Ronald
Luebbert, and Doris Falkenrath. He alleged that Van Loo threatened to place him in
segregation if he filed more grievances, and that thirty minutes after he handed Van
Loo a grievance appeal he was placed in the segregation unit. He further alleged that
Himebrook threatened to harm him physically if he filed more grievances; and that
Luebbert and Falkenrath participated in his placement in segregation. See Santiago
v. Blair, 707 F.3d 984, 991-92 (8th Cir. 2013) (to state First Amendment retaliation
claim, plaintiff must allege he engaged in protected activity, official took adverse
action that would chill a person of ordinary firmness from continuing that activity,
and adverse action was motivated in part by plaintiff’s exercise of protected activity;
filing prison grievance is protected First Amendment activity, and threat of serious
physical harm is sufficient adverse action); Nelson v. Shuffman, 603 F.3d 439, 450
(8th Cir. 2010) (court found adverse action where plaintiff detainee was placed in
isolation without access to mail, family, recreation, and phone calls).
Second, we conclude that Blackmon sufficiently alleged conditions-of-
confinement claims against Falkenrath and defendant Scott Lawrence: his complaint
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identified conditions in the segregation unit that could support an Eighth Amendment
violation, alleged he had been subjected to them for over two months, and identified
Falkenrath and Lawrence as being responsible for them. See, e.g., Day v. Norris, 219
Fed. Appx. 608, 610 (8th Cir. 2007) (unpublished per curiam) (reversing preservice
dismissal because “[a]t this stage of the litigation,” allegations of unsanitary food and
lack of adequate nutrition supported conditions-of-confinement claim); Howard v.
Adkison, 887 F.2d 134, 137 (8th Cir. 1989) (prisoner stated claim when he alleged
he was placed in filthy cell, his requests for remedial measures were unheeded, and
he was denied access to cleaning supplies); see also Beaulieu v. Ludeman, 690 F.3d
1017, 1045 (8th Cir. 2012) (conditions like filthy cell may be tolerable for few days
but intolerably cruel for weeks or months); East v. Lemons, 768 F.2d 1000, 1001 (8th
Cir. 1985) (Eighth Amendment applies to the states as incorporated by Fourteenth
Amendment).
Third, we conclude that Blackmon sufficiently alleged an access-to-the-courts
claim against Falkenrath, based on his allegations that she refused to allow him access
to the law library and that her refusal hindered him in “preparing a petition for legal
redress in the court.” See Lewis v. Casey, 518 U.S. 343, 351 (1996) (access-to-courts
claim requires that complained-of action hindered inmate’s efforts to pursue legal
claim); cf. Beaulieu, 690 F.3d at 1046-47 (actual injury needed for such claim can be
based on law library so inadequate as to render inmate unable to file complaint).
Finally, we conclude that Blackmon sufficiently alleged a failure-to-protect
claim against Van Loo, Lawrence, and defendants Sandra Jimmerson and Alan Earls.
He alleged that Himebrook tried to attack him and had a reputation for violence
against inmates; and that these defendants learned of this threat to his safety by
reading his grievances about it, but did nothing. See Nelson, 603 F.3d at 446 & n.3
(Fourteenth Amendment failure-to-protect claims are analyzed under Eighth
Amendment claim framework, which requires (1) objective showing that deprivation
of rights was sufficiently serious, i.e., failure to protect resulted in conditions that
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posed substantial risk of serious harm, and (2) subjective showing that defendants had
sufficiently culpable state of mind, i.e., they actually knew of risk and did not respond
to it); see also Farmer v. Brennan, 511 U.S. 825, 845-47 (1994) (prisoner may have
viable failure-to-protect claim without sustaining serious harm, and does not need to
“await a tragic event [such as an] actual assault before obtaining relief” (alteration in
original) (quoting Helling v. McKinney, 509 U.S. 25, 33-34 (1993))); Norman v.
Schuetzle, 585 F.3d 1097, 1104 n.1 (8th Cir. 2009) (accepting allegation that warden
was aware of fact supporting inmate’s failure-to-protect claim through reading
grievance about it); Rollie v. Kemna, 124 Fed. Appx. 471, 474 (8th Cir. 2005)
(unpublished per curiam) (inmate stated failure-to-protect claim where he alleged
officials knew of substantial risk to his safety but did nothing to alleviate it),
overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).
We therefore reverse in part and remand for further proceedings on Blackmon’s
retaliation claims against Van Loo, Himebrook, Luebbert, and Falkenrath; his
conditions-of-confinement claims against Lawrence and Falkenrath; his law-library
claim against Falkenrath; and his failure-to-protect claims against Jimmerson, Van
Loo, Lawrence, and Earls. The judgment is otherwise affirmed.
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