Jeffrey P. Sousa v. Keith Anglin

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 26, 2012 *
Decided September 26, 2012
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐1142
JEFFREY P. SOUSA,
Plaintiff‐Appellant,
v.
KEITH ANGLIN, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 11‐2132
Michael P. McCuskey,
Judge.
O R D E R
Jeffrey Sousa, an Illinois prisoner, was assaulted twice by a cellmate at the Danville
Correctional Center. He later was moved to a less desirable cell and ultimately transferred
to another prison. In this lawsuit under 42 U.S.C. § 1983, Sousa alleges that two Danville
guards engineered his pairing with a “bad cellie” whose violent behavior was known and
promoted by the warden. Sousa claims that these individuals, along with an internal‐affairs
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. A PP. P. 34(a)(2)(C).

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officer, violated the Eighth Amendment by failing to protect him from the “bad cellie” who
beat him. He also claims that the guard who moved him to the unpleasant cell violated his
right to due process, and that the warden likewise denied him due process by authorizing
his transfer away from Danville. The district court questioned Sousa about his complaint
during a “merits review” conducted by video link, and afterward dismissed the suit prior to
service for failure to state a claim. See 28 U.S.C. § 1915A(b)(1). We conclude that Sousa states
an Eighth Amendment claim against the warden and two of the guards, and thus we vacate
the judgment in part and remand for further proceedings.
Our factual recitation is drawn from Sousa’s second amended complaint. Because his
suit was dismissed at the pleading stage, we presume for purposes here that Sousa’s
allegations are true and draw all reasonable inferences in his favor. See Smith v. Peters, 631
F.3d 418, 419 (7th Cir. 2011); Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).
Sousa was transferred in 2008 to Danville, a medium‐security institution. When
Sousa arrived, Correctional Officer Waller searched his property and said he found
matches, which are prohibited. Sousa was disciplined despite his insistence that Waller had
planted the matches. Waller did not like being called a liar, so he asked Correctional Officer
Ward, who could control Sousa’s cell assignment, to pair him with a “bad cellie.” Ward
selected Frederick Tremain, a 260‐pound “barn boss” for Warden Anglin. (Years ago
wardens in Illinois embraced the “barn boss” system of allowing or encouraging especially
brutal prisoners to function informally as enforcers. See Kelly v. Ogilvie, 220 N.E. 2d 174, 175
(Ill. 1966); see also Stefano Esposito, The 1967 Report: Jail Inmates Rule the Roost, CHI . SUN‐
TIMES, Sept. 17, 2004, at 20.) Tremain already had assaulted at least five other cellmates, and
Sousa soon became his sixth victim. All of the others had sent “pleas” to Anglin that were
ignored; Sousa likewise wrote Anglin (after each attack, according to his initial complaint),
but these emergency grievances were ignored too. Sousa later complained about Tremain to
Lieutenant Campbell of Internal Affairs, but Campbell did not investigate the complaint.
After lodging a total of five grievances about Tremain, Sousa was paired with a gay
inmate. He disliked the cellmate’s sexual orientation and complained to Major
Cunningham, who responded by moving Sousa to a cell at Danville even less to his liking.
Eventually, Warden Anglin transferred Sousa to the Dixon Correctional Center, also a
medium‐security prison. This transfer prevented Sousa from completing college courses he
was taking at the time.
Sousa filed his complaint, along with a motion for appointment of counsel, in May
2011. The district court declined to recruit a lawyer for Sousa, reasoning that his
participation in college‐level courses demonstrated an ability to litigate his claims on his
own. The court then convened a “merits review” with Sousa participating by video
conferencing. As far as we can tell, no recording was made of that hearing, and the district

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court has not supplied us with a written decision analyzing Sousa’s complaint or spelling
out what further information about his claims was developed during the video conference.
All we have from the district judge is a brief docket entry concluding that Sousa’s second
amended complaint fails to state a claim. As stated in that entry, the court reasoned that
Sousa does not state a claim under the Eighth Amendment because “[d]efendants did not
have prior knowledge that Plaintiff would be assaulted.” The court added that Sousa did
not have a right under the Due Process Clause to avoid segregation or transfer to another
prison. This dismissal, the court said, counted as a “strike” under 28 U.S.C. 1915(g).
On appeal Sousa presses both the due process claims and the Eighth Amendment
claim. He also argues that the district court abused its discretion by denying his motion to
appoint counsel.
We can quickly dispense with Sousa’s due process claims, which arise from Major
Cunningham’s cell reassignment and the decision of Warden Anglin to transfer Sousa to
Dixon. “Disciplinary measures that do not substantially worsen the conditions of
confinement of a lawfully confined person are not actionable under the due process clause,”
Miller v. Dobier, 634 F.3d 412, 414–15 (7th Cir. 2011), and thus Sousa cannot complain about
being moved to a less desirable cell, see Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008).
Nor did Sousa have a protected liberty interest in being housed at Danville rather than
Dixon, so he also fails to state a due process claim arising from the transfer. See Townsend,
522 F.3d at 771; Hoskins v. Lenear, 395 F.3d 372, 374–75 (7th Cir. 2005). That the transfer to
Dixon interferred with his college coursework does not alter that conclusion.
See Zimmerman, 226 F.3d at 571–72 (explaining that inmate did not have constitutional right
to participate in educational programs).
In contrast, Sousa’s Eighth Amendment claim against Warden Anglin, Lieutenant
Campbell, and Correctional Officers Waller and Ward requires a closer look. To state a
claim for failure to protect, Sousa needed to allege that (1) he was incarcerated under
conditions posing a substantial risk of serious harm and (2) the defendants acted with
deliberate indifference to that risk. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994); Dale
v. Poston, 548 F.3d 563, 569 (7th Cir. 2008).
Sousa meets the first element: He alleges that he was housed with a 260‐pound
inmate who, because of his history of attacks on at least five prior cellmates and his status as
a “barn boss,” posed a significant risk of violence to the next person who shared his cell.
See Santiago v. Walls, 599 F.3d 749, 753, 758 (7th Cir. 2010) (explaining that inmate’s
allegation that warden knew about cellmate’s history of violence was sufficient to plead first
element of Eighth Amendment claim against warden for failure to protect plaintiff from
assault by cellmate); Brown v. Budz, 398 F.3d 904, 907–08, 910–11 (7th Cir. 2005) (concluding
that white detainee sufficiently pleaded first element of claim for failure to protect by

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alleging that defendants permitted black detainee with known history of unprovoked
assaults against whites to roam unsupervised in day room where he assaulted plaintiff).
Sousa also satisfies the second element for all but Campbell: He alleges that Anglin,
Waller, and Ward all understood but ignored the risk that Tremain would endanger his
next cellmate. See Pierson v. Hartley, 391 F.3d 898, 900–01, 903 (7th Cir. 2004) (upholding jury
verdict for plaintiff who was assaulted and seriously injured by another inmate the
defendants assigned to plaintiff’s dormitory despite knowledge of inmate’s history of
violent conduct and recent possession of a weapon in facility). In fact, Sousa alleges that
Waller and Ward acted intentionally to facilitate Tremain’s attacks: Waller asked Ward to
bunk Sousa with a “bad cellie” to retaliate for Sousa’s accusation that Waller had planted
matches in his belongings; they settled on Tremain because of his past violence and status as
one of Anglin’s barn bosses. Sousa also states that he notified Anglin of the attacks when he
submitted two emergency grievances describing the attacks and requesting a cell change,
both of which were ignored. These allegations are sufficient, at the pleading stage, to state a
claim that Anglin, Waller, and Ward “actually knew or consciously turned a blind eye
toward an obvious risk.” See Santiago, 599 F.3d at 758–59 (concluding that inmate pleaded
deliberate indifference by alleging that warden had ignored emergency grievances about
risk that cellmate posed to inmate); Brown, 398 F.3d at 913–16 (concluding that detainee
pleaded deliberate indifference by alleging that defendants did nothing to restrain assailant
after learning about his prior attacks against other detainees). Campbell, though, is not
implicated in the events leading up to either of Tremain’s assaults against Sousa.
Sousa also submits that the district court abused its discretion when it denied his
motion to appoint counsel. But Sousa has no right to court‐appointed counsel for this civil
suit, Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006), and the district court reasonably denied the motion after assessing the
complexity of Sousa’s claims and his ability to litigate his claims. See Romanelli, 615 F.3d at
851–52; Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc).
The order dismissing Sousa’s Eighth Amendment claim against Warden Anglin and
Correctional Officers Waller and Ward is VACATED, and the case is REMANDED for
further proceedings on that claim. In all other respects the judgment is AFFIRMED. In light
of this resolution, Sousa has not incurred a strike for the filing of his complaint or this
appeal. See Turley v. Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010).

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