David Laurence Hodges v. State of Minnesota Department of Corrections

United States Court of Appeals
For the Eighth Circuit
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No. 21-3891
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David Laurence Hodges,
lllllllllllllllllllllPlaintiff - Appellant,
v.
State of Minnesota Department of Corrections; Ashlee Berts; Derek Gunderson;
Stacy Olson; Jeffrey T. Titus; Collin Gau; Gene Olson,
lllllllllllllllllllllDefendants - Appellees,
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 18, 2022
Filed: March 3, 2023
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.
Minnesota prisoner David Hodges sued several officials of the Minnesota
Department of Corrections, alleging that they violated his constitutional rights by

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failing to protect him from an attack by a fellow inmate. The district court* granted
summary judgment for the officials, and we affirm.
I.
Hodges was incarcerated at the Rush City, Minnesota correctional facility as
of September 2018. At that time, Hodges engaged in an altercation with a fellow
inmate named Osgood. A cellmate of Hodges owed money to Osgood for drugs, and
Osgood attempted to collect from Hodges. Osgood was a member of one prison
gang; Hodges and his cellmate were members of another. Hodges informed Osgood
that he had nothing to do with the cellmate’s debt, and refused to pay.
On September 18, Osgood told Hodges that he would be waiting for Hodges
when he returned from a prison work detail. Shortly after Hodges arrived at his cell,
Osgood entered, shut the door, and attacked Hodges with a shank. Hodges defended
himself by throwing hot water onto Osgood. The fight lasted a couple of minutes,
and both men suffered burns. Osgood apparently sustained significant injuries and
remained in his cell for a few days thereafter.
Hodges believed that Osgood would seek revenge and asked his relatives to
contact the Department of Corrections about his concern for safety. His relatives
urged the Department to take precautions, including by transferring Hodges to
another facility.
Prison officials interviewed Hodges a week after the incident. Hodges stressed
that prison officials needed to keep him away from Osgood “because things in 3
*The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota, adopting the report and recommendation of the Honorable
Katherine Menendez, then a United States Magistrate Judge for the District of
Minnesota.
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North are not done yet,” and “[i]t’s gonna get really ugly in there and I just want out
of here.” Hodges admitted to taking the shank from Osgood during the fight, but
claimed that he disposed of it. Prison officials were unable to locate the weapon.
Hodges received a disciplinary sanction of forty days in segregation for his role in the
fight.
In the course of their investigation, prison officials reviewed video evidence
and prepared an incident report. When investigators spoke with Osgood, he stated
that as far as he was concerned, “the issue was dead.”
The Department of Corrections has a policy on “offender incompatibility” to
review issues of incompatibility between offenders and to enhance security and safety
of offenders and staff. The Rush City prison maintains an “incompatibility
committee” to make decisions about whether certain inmates are incompatible and
should be separated. There are eight or nine members of the committee, but the only
members sued in this case were appellees Berts, Gunderson, and Gene Olson. Berts
and Olson were voting members of the committee; Gunderson is an investigator who
provided relevant information to the decisionmakers. The committee meets weekly,
and considers six or seven matters in a typical week.
Under Department policy, when the committee finds compelling evidence that
continued placement of two inmates in the same location would result in a risk of
serious bodily injury to one or both of the inmates, the committee makes a
recommendation that the two are incompatible. Appellee Berts, the chair of the
committee, paraphrased the policy to mean that the committee examines whether
there is a very good reason to believe that harm would come to one of the offenders.
If the committee recommends separation, then a manager in the Department makes
a final decision about whether to transfer an inmate.
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The incompatibility committee considers the totality of circumstances in
making its decisions. The sources of information include incident reports, complaints
and requests from inmates, information obtained from disciplinary investigations,
previous injuries to an inmate, weapons or gang affiliations, information from an
offender’s family or friends, and documentation cited in a complaint or pre-sentence
investigation.
The Rush City incompatibility committee met on September 26, 2018, and
discussed Hodges and Osgood. According to committee member Gene Olson, the
committee reviewed the incident report regarding the altercation on September 18,
and determined not to recommend that Hodges and Osgood be separated. Olson said
the committee relied on the fact that the altercation was the first incident between the
two inmates, and that one of the two believed that “the issue was dead.” Committee
member Berts did not recall the specific discussion, but testified that the committee
would have reviewed the incident reports concerning the altercation. Two others who
were likely present at the meeting—committee member Gunderson and a staff
assistant—did not recall the discussion. The committee prepared no written record
of its deliberations, but a note was placed in the Department’s computer system
stating that “no action” was taken to declare the inmates incompatible.
Hodges continued to send written communications to prison officials stating
that he feared an attack from Osgood or others. His relatives contacted the
Department with questions about the incident and to request that Hodges be
transferred to another facility. The family members reiterated that Hodges did not
feel safe and had received threats from other offenders.
Hodges returned from segregation to the general prison population on
November 3, 2018. On that same date, Osgood and another inmate attacked Hodges
by throwing a heated liquid in his face and striking him in the head and face. Hodges
sustained a fractured nasal bone and serious burns to his face and chest.
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Following the second altercation, the incompatibility committee conducted
another review and recommended that Hodges and Osgood should be separated. The
Department ultimately transferred Hodges to another facility in Stillwater.
Hodges then sued several officials and the Department under 42 U.S.C. § 1983.
As relevant here, he alleged that the officials violated his rights under the Eighth
Amendment to be free from “cruel and unusual punishment” when the officials failed
to protect him from an attack by Osgood. The district court granted summary
judgment for the officials on the ground that Hodges presented insufficient evidence
to show that any official was deliberately indifferent to a substantial risk of serious
harm to Hodges. The court dismissed the claim against the Department without
separate discussion.
Hodges appeals the dismissal of his Eighth Amendment claims. We review the
grant of summary judgment de novo, construing the evidence in the light most
favorable to Hodges. Summary judgment is appropriate when the record presents no
genuine issue of material fact, and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56.
II.
The Eighth Amendment requires officials to “provide humane conditions of
confinement” by taking reasonable steps to protect inmates convicted of crimes from
assault by other inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To prove
an unconstitutional failure to protect from harm, Hodges must show that (1) he was
incarcerated under conditions posing a substantial risk of serious harm, and (2) a
defendant was deliberately indifferent to the substantial risk of serious harm. Id. at
834. The dispute here concerns the subjective deliberate indifference requirement
under the second element.
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Deliberate indifference under the Eighth Amendment is the equivalent of
criminal recklessness: the defendant must be “aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 837. An official is deliberately indifferent only if he
actually knows of the substantial risk and fails to respond reasonably to it. Id. at 844-
45. This standard incorporates “due regard for prison officials’ unenviable task of
keeping dangerous men in safe custody under humane conditions.” Id. at 845
(internal quotation omitted).
Hodges argues that prison officials were deliberately indifferent to a substantial
risk that Osgood would attack him again after the first altercation. He cites evidence
that the first attack involved a weapon, injuries, and inmates who were affiliated with
gangs. He emphasizes that he and his relatives repeatedly communicated fears about
safety and requested that the prison transfer him to another facility. Hodges asserts
that neither members of the incompatibility committee nor other officials who knew
about his concerns meaningfully considered the risks to his safety before declining
to separate the inmates. Hodges suggests that the lack of documentation about the
committee’s meeting and the inability of some attendees to remember the meeting
demonstrates that the officials were deliberately indifferent to a risk of harm.
We agree with the district court that the evidence is insufficient to show that
any of the defendant officials subjectively concluded that Hodges faced a substantial
risk of serious harm and then failed to respond reasonably to it. The unrebutted
evidence is that the two voting officials on the incompatibility committee considered
incident reports and other relevant information, but decided that the situation did not
rise to the level of incompatibility—that is, they concluded that the evidence did not
indicate a risk of serious bodily injury to an offender. This means that the officials
did not draw the subjective inference that there existed a substantial risk of serious
harm to Hodges. The officials predicted incorrectly, but they were not deliberately
indifferent for purposes of the Eighth Amendment.
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Hodges makes much of the fact that three attendees at the meeting of the
incompatibility committee could not recall the substance of the discussion that
occurred two years earlier. But the Eighth Amendment does not require
documentation of prison decisions or impose liability for lack of recollection.
Summary judgment is appropriate if the inmate fails to make a showing sufficient to
establish that the officials were deliberately indifferent. See Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). Although the officials are not required to negate the
inmate’s claim, the officials here presented an account of one committee member who
summarized the meeting, and another who testified to the committee’s customary
practices. Hodges did not come forward with evidence showing that prison officials
subjectively believed that he was at substantial risk of serious harm and then ignored
the concern.
This case is not like Young v. Selk, 508 F.3d 868 (8th Cir. 2007), where an
inmate showed that a prison sergeant ignored an urgent request for protection and told
the inmate to talk to someone else. Id. at 871. Nor is it comparable to Nelson v.
Shuffman, 603 F.3d 439 (8th Cir. 2010), where a detainee presented evidence that
officials at a treatment center indifferently placed him in a room with a resident who
they knew had exhibited a history of sexual assault and whose conduct at the center
was “violent, aggressive, assaultive, and out of control.” Id. at 447. The officials
here convened a meeting to discuss a one-time altercation between inmates and to
consider whether the inmates should be separated. Hodges presented insufficient
evidence to dispute that the committee members made a subjective judgment under
the circumstances that Hodges was not at substantial risk of serious bodily injury.
As to the officials who were not voting members of the incompatibility
committee, Hodges has not made a sufficient showing that any of them was
deliberately indifferent. The non-voting member of the committee, investigator
Gunderson, provided relevant information to the decisionmakers. Hodges has not
made a showing that Gunderson was deliberately indifferent in performing his
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assigned function. Hodges expressed concern to caseworker Stacy Olson on
September 28, 2018, about continued contact with Osgood. Olson forwarded that
information to her watch commander, and determined that Hodges’ request for
separation from Osgood had been reviewed by the incompatibility committee two
days earlier. She was not deliberately indifferent by deferring to the established
process within the prison for determining whether inmates are incompatible.
Appellee Titus was the warden at the Rush City facility; appellee Gau was the
assistant commissioner of the facilities division in the Department of Corrections.
Both received copies of communications showing that a relative of Hodges had
contacted the Department in September 2018 to express concern about Hodges’
safety. Both officials deferred to the established Department policy on
incompatibility and the work of the committee within the prison. Hodges argues that
Titus improperly relied on space constraints when he averred that the Department
“cannot move every offender who has an altercation or where there may be gang
affiliation.” But the Eighth Amendment does not require a transfer of all inmates in
those categories; it imposes an obligation to act when prison officials know that there
is a substantial risk of serious harm to an inmate. Given the absence of a showing
that the incompatibility committee was deliberately indifferent, and that either
supervisory official knew of such indifference, Hodges has not made a sufficient
showing that Titus or Gau was deliberately indifferent by deferring to the established
policy and process. See Axelson v. Watson, 999 F.3d 541, 546 (8th Cir. 2021).
Hodges makes no argument about why the Department of Corrections, an agency of
the State, could be liable under the Eighth Amendment, so any claim against the
Department itself is waived.
* * *
The judgment of the district court is affirmed.
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KELLY, Circuit Judge, concurring.
I concur, but write separately because I disagree with the court’s discussion of
the subjective component of the deliberate indifference requirement of Hodges’
Eighth Amendment claim. The court concludes that the voting members of the
incompatibility committee “did not draw the subjective inference that there existed
a substantial risk of serious harm to Hodges” because they determined the conflict
between Hodges and Osgood “did not rise to the level of incompatibility.” But the
committee’s incompatibility determination, alone, does not shed light on the
subjective belief of the committee members. In other words, it is not a foregone
conclusion that prison officials, by simply making a not-incompatible finding like the
committee did here, are free from liability under the Eighth Amendment. And while
the Eighth Amendment may not require recordkeeping by prison officials or impose
liability for lack of recollection, the absence of documentation regarding prison
decisions or prison officials’ inability to remember events central to their decision-
making process may be relevant to determining the knowledge and subjective
understanding of these officials. See Farmer, 511 U.S. at 842 (“Whether a prison
official had the requisite knowledge of a substantial risk is a question of fact subject
to demonstration in the usual ways, including inference from circumstantial
evidence . . . .”). Nevertheless, I concur in the court’s judgment because, on the
record before us, Hodges has not shown facts to allow a jury to reasonably conclude
that prison officials subjectively believed he faced a substantial risk of serious harm
from Osgood.
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