James E. Pinkston v. ANTHONY MADRY and JANIENE GRISSELLE

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2973
J AMES E. P INKSTON ,
Plaintiff-Appellant,
v.
A NTHONY M ADRY and
J ANIENE G RISSELLE ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:00 CV 090 RM—Robert L. Miller, Jr., Chief Judge.
____________
A RGUED D ECEMBER 2, 2004—D ECIDED M ARCH 14, 2006
____________
Before C OFFEY , R IPPLE and M ANION , Circuit Judges.
C OFFEY , Circuit Judge. On May 3, 2000, James
Pinkston filed a complaint in federal court pursuant to
42 U.S.C. § 1983 alleging that two correctional officers at
the Indiana Department of Corrections Maximum Con-
trol Complex in Westville, Indiana, violated his Eighth
Amendment rights when they allowed another prisoner
to assault him and thereafter refused to assist him in
receiving adequate medical care. While discovery was
underway, the district court assigned a magistrate judge to
dispense with all non-dispositive matters and to file
proposed findings of fact and conclusions of law. See 28
U.S.C. § 636(b)(1)(B). The magistrate judge subsequently

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2 No. 03-2973
1 Correctional Officer Madry, a defendant in this action, testified
at the evidentiary hearing that, before being reassigned to the
MCC, the criminals “had to be at another prison [previously],
[where they had] committed assault on an officer or another
offender, or [had been] involved in some kind of riot, or something
like that.” Pinkston became eligible for placement in the MCC
after he attacked another inmate with a weapon.
2 In 1997, Pinkston attacked another offender with a weapon and
testified that he regularly “got into . . . fights.”
convened an evidentiary hearing and, after performing a de
novo review of the evidentiary hearing transcript and the
magistrate judge’s recommendations, the district court
adopted the magistrate judge’s decision granting
the defendants-appellees motion for “Judgment on Partial
Findings” under Federal Rules of Civil Procedure 52(c).
We affirm.
I. BACKGROUND
At all times relevant to this appeal Pinkston was confined
at the Indiana Department of Corrections Maximum
Control Complex (“MCC”) in Westville, Indiana, a maxi-
mum security prison operated as an institution to confine
the most aggressive criminals in the Indiana prison
system. 1 While incarcerated at the facility, Pinkston had a
number of acrimonious and brutal run-ins with corrections
officers as well as fellow inmates. 2
Sometime in September of 1999, Pinkston commenced
to harbor animosity towards Corrections Officer Anthony
Madry. On or about September 16, 1999, Pinkston allegedly
witnessed Madry returning a pair of sweatpants that he
had laundered for another inmate, Dana Smith. Feeling left
out, Pinkston asked Madry to wash his sweats as well, but
that request was summarily denied.

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No. 03-2973 3
On the morning of September 17, 1999, with tensions
somewhat charged from the events of the previous day,
Smith and Pinkston began trading insults back and forth
from their adjacent cells. In hopes of avoiding the possi-
bility of being alone with Smith, Pinkston chose to go to the
showers that afternoon instead of going to recreation.
Officer Madry was assigned to accompany Pinkston to the
shower facility and, according to Pinkston, while Madry was
shackling him for transport he (Madry) intentionally left his
handcuffs “loose.” Then, during the walk to the showers,
Pinkston claims that Madry encouraged him to “slip his
cuffs” as a sign of aggression so that Madry would be
justified in engaging in an altercation with him. Pinkston
refused to do so and, after showering, requested that two
different officers escort him back to his cell. The guards
eventually acquiesced, and Pinkston was returned to his
cell without incident.
The events of September 19, 1999, however, are the
impetus of this lawsuit. Pinkston claims that, after he
showered, Madry began yelling at him, telling him that he
was going to “whoop him.” Another officer, Officer Chap-
man, allegedly joined Pinkston and Madry in the shower
area with baton in hand, and Pinkston claims that he
became frightened that the officers might “jump” him.
However, nothing happened and he was led back to his
cell without incident.
What happened next is the subject of dispute. Pinkston
claims that later that day (September 19th) he was again
approached by Madry, this time while he was locked in his
cell. Madry allegedly spoke to Pinkston, with Smith in
earshot, intimating that he was going to unlock the doors of
the two inmates cells so that Smith and Pinkston could
fight it out. At some point in the next few minutes, Madry
walked away and the doors to Smith and Pinkston’s cells
opened. With other inmates watching, the two allegedly

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4 No. 03-2973
3 A shift change occurred and Officer Chapman had been replaced
by Officer Janiene Grisselle.
4 Pinkston claims that Madry stated: “That’s what happens to
little bitches. You better lay down and take that ass kicking.”
engaged in fisticuffs, with Pinkston receiving a punch to the
face from Smith, injuring his lip and drawing blood.
According to Pinkston, while the fight was going on
Madry and another officer, Officer Janiene Grisselle,
observed the melee from the control room and, as a result,
Madry immediately went down to investigate. 3 As Madry
approached, the tussle ceased and Pinkston returned to
his cell. Madry located a mop and cleaned up the blood
on the floor. While he was doing this, Pinkston requested
that he be allowed to see the nurse. Madry allegedly
responded flippantly 4 and returned to the control room
when he was finished cleaning up. After Madry re-
turned to the control room, Grisselle walked down to
Pinkston’s cell and assessed his wounds. Grisselle then
secured some Band-Aids, tape, and ice from the nurse’s
station, returned to Pinkston’s cell and proceeded to
treat his lip with a bandage and an alcohol pad while
attempting to calm him down. The nurse was not called
at that time, but Grisselle did return later to re-dress
Pinkston’s lip.
Approximately four days later, on September 23, 1999,
Pinkston submitted a formal medical request as well as
a form requesting a conference with a counselor. The
following day, Pinkston was interviewed by Rosanne
Downey-Zinkan a behavioral clinician, who discussed the
incident with Pinkston and observed that he had an “injury
to [his] lip, puffy, and injury about [his] eye; both on the left

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No. 03-2973 5
5 Downey-Zinkan also had a follow up meeting with Pinkston
on October 5, 1999, after which she noted that his “[l]ip was
not swollen, [and that the] facial discoloration was gone.”
6 According to prison regulations all grievances must be sub-
mitted within 48 hours of the alleged incident.
7 In addition, Pinkston also refused x-rays on October 12, 1999,
and October 14, 1999.
side [of his face].” 5 The clinician suggested that Pinkston
seek medical help, if he felt that was necessary, and advised
him that he might want to file a grievance, if he was so
inclined. Pinkston followed this advice and, on September
24, 1999, filed a grievance with the prison’s administration,
which was denied as untimely. 6
On September 29, 1999, Pinkston was again examined,
this time by a nurse who described him in her report as
being “very uncooperative” and noted that, at that time, she
observed no “redness, swelling or discharge” on the left side
of his face. She went on to note that, when Pinkston was
“asked how [the] injury occurred and where other injuries
are located [he] stood up and left the room,” without
answering. Two days later, Pinkston submitted a second
written medical request. Upon receipt, the nurse on duty
requested that an x-ray of Pinkston’s facial area be per-
formed in order to rule out a broken jaw. The prison’s doctor
agreed with the recommendation and ordered an x-ray,
scheduling it for October 6, 1999. However, Pinkston
refused the x-ray procedure in writing when he submitted
a third health care request form on October 5, 1999, in
which he wrote that he didn’t “need an x-ray” because he
didn’t “have a fracture[d] jaw.” 7 Instead, Pinkston averred
that he “just wanted to be seen under confidentiality, and
have it noted [sic] about the injuries [he] received from the
assault.” On October 8, 1999, Pinkston filed a fourth
medical request form complaining that his “jaw [was] still

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6 No. 03-2973
8 Although the record is somewhat unclear, it appears that
Pinkston was examined in person by medical staff on at least
two occasions. See supra pp. 4-5.
swollen.” That request was granted and the doctor agreed
to see Pinkston on October 14, 1999, but apparently
Pinkston once again refused medical attention, for in his
file it is noted that he “refused to be seen by the M.D.” 8
On October 20, 1999, Pinkston wrote the superintendent
of the prison alleging that Officers Madry and Grisselle
allowed another inmate to assault him and requested
that his complaint be investigated. On November 21, 1999,
a formal investigation was launched by Investigator Surney
of the Indiana Department of Corrections. Surney later
submitted a report, concluding that “[d]ue to lack of evi-
dence and [Pinkston’s] unwillingness to cooperate with the
medical staff, this writer finds the incident to be unfounded
and without merit.”
Not happy with the outcome of the Department of Correc-
tion’s investigation, Pinkston filed suit in the United States
District Court for the Northern District of Indiana on
February 9, 2000. In his pro se complaint Pinkston asserted
that Officers Madry and Grisselle had violated his Eighth
Amendment rights on September 19, 1999, when they: (1)
failed to protect him from inmate Smith who attacked him
and; (2) failed to provide him with adequate medical care
following the incident. Following discovery and an unsuc-
cessful motion by the defendants for summary judgment,
the case was referred to a magistrate judge on August 6,
2002, for disposition of all dispositive and non-dispositive
matters. See 28 U.S.C. § 636(b)(1)(B).
The assigned magistrate judge, Judge Nuechterlein,
ordered an evidentiary hearing. At the hearing, on April 30-
May 1, 1999, Pinkston presented a number of witnesses,
including a fellow inmate, John Meriweather, and four
prison employees, Officers Jeffery Caldwell and Michael

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No. 03-2973 7
9 Pinkston added that, while he was mopping up the blood, Madry
was taunting him, saying things like “[y]ou better lay down that
take that [explicative deleted] beating,” and congratulating Smith,
telling him that he “got [sic] him good.”
Walker, Nurse Michelle Conrad, and behavioral clinician
Rosanne Downey-Zinkan. Of these witnesses, Meriweather
was the only person that claimed to have actually witnessed
the attack. While he could not be “specific on the date” of
the fight and acknowledged that he did not actually “see the
incident” due to the position of his cell, Meriweather
testified that from his cell he “could hear somebody . . .
fighting” in the vicinity of Pinkston’s cell on or about the
19th of September, 1999.
After presenting his witnesses, Pinkston also testified
on his own behalf in a narrative, during which Judge
Nuechterlein felt it was necessary to ask a number of
questions in an attempt to clarify portions of his testimony.
Specifically, Pinkston testified that, around 7:00 pm on
September 19, 1999, Officer Madry was the only officer left
on the cell block after a shift change had occurred. Pinkston
stated that, shortly thereafter, he had a brief conversation
with inmate Smith and then proceeded to the control tower
where he “gave power to [Pinkston’s] door,” causing it to
open. At that point, Pinkston told the court that he walked
out of his cell where he and inmate Smith “fought three
times . . . it was like wrassling [sic] and stuff.” According to
Pinkston it was Madry who went down to the area where
the fight was taking place to “break it up,” but stated that
before the fight was interrupted Smith “hit [him] in the
mouth and split [his] lip.” Pinkston then informed the court
that, after the fight ended, he retreated to his cell while
Madry “grabbed a mop and started mopping up the blood.” 9
In addition, Pinkston specifically testified concerning

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8 No. 03-2973
10 For example, when asked whether he was, in any way, claiming
that Officer Grisselle was involved in allowing the fight with
Smith to take place, Pinkston stated that “she didn’t [sic] do
nothing . . . I don’t think she had any knowledge of it . . . . She
didn’t even know it was going to happen.”
11 In addition, in his written submission of findings of fact and
conclusions of law, the magistrate judge cited Pinkston’s testi-
mony that, on at least two occasions, Grisselle “administered
(continued...)
Officer Grisselle’s absence during or prior to the fight, 10 as
well as her appearance afterwards and efforts to supply
Pinkston with medical assistance on two different occasions.
On cross-examination, Pinkston also made clear that Madry
did not, at any point, strike him and he was not claiming
that Madry ever directly physically harmed him.
At the close of Pinkston’s presentation of his case, Madry
and Grisselle moved for judgement on partial findings
pursuant to Fed. R. Civ. P. 52(c). The court granted the
motion, in part, finding that Pinkston had failed to carry his
burden of establishing by a preponderance of the evidence
that either Madry or Grisselle had been deliberately
indifferent to his serious medical need following his fight
with Smith. See Wynn v. Southward, 251 F.3d 588, 593 (7th
Cir. 2001). Specifically, the magistrate judge concluded
that: (a) Pinkston’s claims of a split or bloody lip and
bruising on his back were insufficient to qualify as a
“serious medical need”; (b) facts and evidence produced at
the hearing established that Pinkston waited a prolonged
period of time (4-5 days) before he formally requested
medical attention severely undermined his assertion that
his injury was serious; and (c) the fact that Pinkston was
uncooperative and unreceptive when medical treatment was
offered in response to his requests belied his claim of
deliberate indifference to a serious medical need on the part
of prison officials. 11 In addition, the magistrate verbally

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No. 03-2973 9
11 (...continued)
medical aid to [Pinkston’s] injuries.”
12 Indeed, Pinkston himself testified that Grisselle was not
present in the cell block at the time that his fight with Smith took
place. See supra p. 8 n.10 and accompanying text.
13 Specifically, Madry testified that the process of opening an
inmate’s cell required two people: one officer, located in the
control room which overlooks the cell block, to “give power” to
the cell door, and another guard, positioned right outside the
cell, to push a button that—when activated at the same time as
(continued...)
granted the defense’s motion to dismiss Grisselle from the
suit pursuant to Rule 52(c), finding that Pinkston had not
established that Grisselle had failed to protect him. 12
Nevertheless, because the magistrate felt that there was
some degree of uncertainty in the evidence presented as to
Madry’s specific role in the fight, i.e., whether Madry
purposely allowed Smith to attack Pinkston in hopes that
Pinkston would be harmed, the magistrate judge declined
to render any judgment on Madry’s motion for judgment on
partial findings until the close of the defense’s case. See
Fed. R. Civ. P. 52(c).
The defense called only one witness, Officer Madry,
during its presentation at the evidentiary hearing. Madry
testified that he recalled “exchanging words” and trading
“negative comments; that type of thing” with Pinkston, but
denied instigating or allowing the fight to take place
between Pinkston and Smith. In addition, Madry corrobo-
rated testimony given by two other prison guards (Caldwell
and Surney), stating that it took two officers to activate the
locking devices in order to open an inmate’s cell and that
one officer, on his own, could not open a cell door (in
contrast to Pinkston’s assertion that Officer Madry opened
his cell door without assistance from anyone outside the cell
block’s control room). 13 Madry concluded his testimony by

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10 No. 03-2973
13 (...continued)
the button in the control room—would open the cell door. Thus, it
was physically, as well as mechanically, impossible for one person
standing in the control room to open any cell door, including
Pinkston’s, on his own; that is, without assistance from another
person standing right in front of the cell pushing the correspond-
ing button.
14 Indeed, Madry was unable to recall many details concerning the
events of September 19, 1999, such as what time Officer Grisselle
left the cell block and when—or if—the prisoners were taken for
showers or recreation that day.
stating that he was unable to explain why that day’s time
sheets had not been filled out and filed, although it was
official policy to document all operations in the cell block. 14
After Madry’s testimony, the defense rested and the
magistrate judge—without rendering judgment on Madry’s
motion for judgment on the findings under Fed. R. Civ. P.
52(c)—retired to prepare written findings of fact and
conclusions of law in accordance with the district judge’s
instructions and 28 U.S.C. § 636(b)(1)(B).
On May 13, 2003, Magistrate Judge Nuechterlein
issued his written findings of fact and conclusions of law. In
that document, the magistrate judge reiterated his previous
findings, including his decision to grant Grisselle and
Madry judgment on partial findings based on Pinkston’s
failure to provide medical care claim. See supra p. 7-8. In
addition, the judge also found that the defense was entitled
to judgment under Rule 52(c) on Pinkston’s failure to
protect claim. The judge repeated his finding that, accord-
ing to Pinkston’s own testimony, Grisselle was not present
in the cell block during the time period when the fight took
place and, therefore, could not be responsible for the fight,
much less held liable under § 1983. Further, the magistrate
judge concluded that, despite Madry’s “unconvincing
memory lapses” concerning the events of September 19,

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No. 03-2973 11
1999, Pinkston had not established that Madry had violated
his Eighth Amendment right by failing to protect him from
a substantial risk of serious harm. Explaining this conclu-
sion, the magistrate cited: (a) the fact that Madry would not
have been able to open Pinkston’s cell door from the control
room without the assistance of another guard in a differ-
ent area of the cell block; (b) Pinkston’s failure to timely
report the supposedly serious injuries he incurred from the
fight until September 23, five days thereafter; and (c) the
lack of evidence corroborating Pinkston’s version of
events—except for the vague testimony of fellow inmate
John Meriweather, who testified that he did not see the
fight, only overheard it and could not state with any
specificity what took place prior to or during the incident.
Having so concluded, the magistrate judge recommended
that the district court enter judgment in favor of the
defendants.
Following receipt of the magistrate’s recommendation,
Pinkston filed a number of hand-written objections to
the recommendation with the district court. On July 3,
2003, Chief Judge Robert L. Miller, Jr., after reviewing the
magistrate’s report as well as Pinkston’s objections, entered
judgment in favor of the defendants. In his order, Judge
Miller wrote the following:
Having thoroughly reviewed the plaintiff’s objections to
[the] United States Magistrate Judge’s report and
recommendation of May 13, 2003, and having conducted
a de novo review of the transcript of the evidentiary
hearing conducted on April 30 and May 1, 2003, the
court finds itself in complete agreement with the
reasoning and result of the report and recommendation.
The court therefore OVERRULES the plaintiff’s objec-
tions (filed May 28, 2003). Having no difficulty in
reading the handwritten objections, the court also
DENIES the plaintiff’s motion (filed May 28, 2003) for
additional time within which to submit a typed version.

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12 No. 03-2973
The court ADOPTS the magistrate judge’s report
and recommendation and directs that judgment be
entered for both defendants and against the plaintiff.
SO ORDERED.
Pinkston v. Madry, No. 3:00CV0090RM (N.D. Ill. July 3,
2003). Pinkston timely appealed.
II. ISSUES
On appeal Pinkston argues that the district court erred in
adopting the magistrate’s finding that Pinkston had not
established by a preponderance of the evidence his § 1983
claims for failure to protect and deliberate indifference
to a serious medical need. Pinkston also claims that
the procedure that the district court employed in adopt-
ing the magistrate’s recommendations violated both the
spirit and letter of 28 U.S.C. § 636(b)(1)(B). Specifically,
Pinkston argues that the district court erred by allowing the
magistrate judge to conduct a “quasi bench trial rather than
an evidentiary hearing.” Also, Pinkston claims that instead
of “rubber stamping” the magistrate’s decision, the district
court should have conducted a more thorough review of the
evidentiary hearing.
III. DISCUSSION
The district court adopted the magistrate judge’s grant of
the defendant-appellant’s motion for Judgment on Partial
Findings pursuant to Fed. R. Civ. P. 52(c). Rule 52(c)
provides that:
If during a trial without a jury a party has been fully
heard on an issue and the court finds against the
party on that issue, the court may enter judgment
as a matter of law against that party with respect to
a claim or defense that cannot under the controlling law

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No. 03-2973 13
be maintained or defeated without a favorable finding
on that issue, or the court may decline to render any
judgment until the close of all the evidence. Such a
judgment shall be supported by findings of fact and
conclusions of law . . . .
Id. When reviewing a judgment premised on Rule 52(c), the
district court’s factual findings—adopted from the magis-
trate judge’s recommendation—are reviewed for clear error
only. See Collins v. Ralston Purina Co., 147 F.3d 592, 599
(7th Cir. 1998); Hirsch v. Burke, 40 F.3d 900, 903 (7th Cir.
1994); Zeige Distributing Co. v. All Kitchens, Inc., 63 F.3d
609, 612 (7th Cir. 1995). In addition, where the district
court “correctly states the law, then his findings as to
whether the facts meet the legal standard will be disturbed
only if they are clearly erroneous.” Daniels v. Essex Group,
Inc., 937 F.2d 1264, 1269 (7th Cir. 1991) (citing Pull-
man-Standard v. Swint, 456 U.S. 273, 288 (1982) and Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)).
Under the clearly erroneous standard we may not “reverse
the finding of the trier of fact simply because . . . [we] would
have decided the case differently.” Anderson v. City of
Bessemer, 470 U.S. 564, 573 (1985). Instead, we are re-
quired to affirm the district court’s judgment “[i]f the
district court’s account of the evidence is plausible in light
of the record viewed in its entirety.” Id. at 573-74. Clear
error is an extremely deferential standard of review, and
will only be found to exist where the “reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Anderson, 470 U.S. at
573 (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)).
A. Pinkston’s § 1983 Claims
Pinkston’s initial argument on appeal is that it was
clear error for the district court to adopt the magistrate’s

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14 No. 03-2973
finding that neither of the guards, Madry or Grisselle,
violated Pinkston’s Eighth Amendment rights by allegedly
failing to protect him from his attacker and failing to
provide timely and adequate medical care to him follow-
ing the altercation. For simplicity’s sake, we discuss each of
his Eighth Amendment claims in turn.
1. Failure to Protect
Pinkston argues that it was clear error for the district
court to adopt the magistrate’s determination that he failed
to establish that either Madry or Grisselle had failed to
protect him from a serious risk of physical harm by allowing
a fight to occur between inmate Smith and himself. Specifi-
cally, Pinkston argues that he carried his burden by
demonstrating that Madry had the ability, as well as the
opportunity, to singlehandedly open the prisoners’ cells so
that a fight could take place. Going further out on a limb,
Pinkston also claims on appeal that he established that
Grisselle was either a direct participant or was complicit in
the attack. We disagree and find no merit to either of these
assertions.
As the Supreme Court has recognized, “prison officials
have a duty . . . to protect prisoners from violence at the
hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825,
833 (1994) (quoting Cortes-Quinones v. Jimenez- Nettleship,
842 F.2d 556, 558 (1st Cir. 1988)). “It is not, however, every
injury suffered by one prisoner at the hands of another that
translates into constitutional liability for prison officials
responsible for the victim’s safety.” Id. at 834. In order to
state a claim under the Eighth Amendment for failure to
protect, a plaintiff bears the burden of establishing prison
officials were “deliberately indifferent” to the fact that an
inmate was in serious peril of being harmed. Board v.
Farnham, 394 F.3d 469, 478 (7th Cir. 2005); see Henderson
v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). In other
words, in order to prevail, Pinkston must demonstrate that

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No. 03-2973 15
he “ ‘was at serious risk of being harmed [and Madry and
Grisselle] decided not to do anything to prevent that harm
from occurring even though [they] could have easily done
so.’ ” Board, 394 F.3d at 478. (quoting Armstrong v.
Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)). However,
“conduct that simply amounts to ‘mere negligence or inadver-
tence’ is insufficient to justify the imposition of liability.”
Watts v. Laurent, 774 F.2d 168, 172 (7th Cir. 1985) (quoting
Estate of Davis v. Johnson, 745 F.2d 1066, 1070 (7th Cir.
1984)). Instead, “[i]n order to infer callous indifference when
an official fails to protect a prisoner from the risk of attack,
there must be a ‘strong likelihood’ rather than a ‘mere
possibility’ that violence will occur.” Id.
At the evidentiary hearing Pinkston failed to establish
that Madry and/or Grisselle failed to protect him from a
situation in which there was a “strong likelihood” that
violence would occur. Id. As the magistrate judge pointed
out in his recommendation to the district court, Pinkston
failed to establish by a preponderance of the evidence
that Madry could have opened the cell door on his
own/without assistance and, as Pinkston himself stated,
Grisselle wasn’t even present in the cell block area when his
cell door was opened. When asked at the evidentiary
hearing whether he was “seeking damage [sic] from former
officer Grisselle for opening the cell door,” Pinkston in
fact stated that “she didn’t have nothing [sic] to do with
that part.” In addition, no less than three witnesses—
Officers Madry and Caldwell, along with Department of
Corrections investigator Surney—testified at the eviden-
tiary hearing concerning the locking mechanism on the
cell doors. Specifically, each witness testified that, in order
to open a particular inmate’s cell, one officer needs to
be located in the control room “giving power” to the door
with the pushing of a button, and another officer must be
stationed directly in front of the inmate’s door simulta-
neously depressing another button. See supra p. 10 n.13.

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16 No. 03-2973
15 In a related argument, Pinkston claims that the magistrate
judge precluded him from calling additional witnesses to testify as
to the events of September 19, 1999. However, it is clear from the
record that the magistrate judge did no such thing. Prior to the
evidentiary hearing the magistrate judge informed Pinkston via
letter that he would not be allowed to call “several prisoners to
testify to the same thing.” This was a reasonable determination by
the magistrate judge, who was simply trying to preclude the
introduction of cumulative or repetitive testimony and thus
conserve judicial resources; Pinkston was in no way prejudiced
during the evidentiary hearing by the magistrate judge’s determi-
nation. See Horton v. Litscher, 427 F.3d 498, 507-08 n.15 (7th Cir.
2005); see also United States v. Orr, 825 F.2d 1537, 1540 (11th Cir.
1987) (stating that a trial court judge may limit testimony where
cumulative and when defendant had substantial opportunity to
expose witness’ potential biases). Nevertheless, because Pinkston
failed to object to the magistrate judge’s order prior to, during or
after the hearing, the issue has been waived. See, e.g., Wernsing
v. Thompson, 423 F.3d 732, 751 (7th Cir. 2005); Premcor USA, Inc.
v. Am. Home Assurance Co., 400 F.3d 523, 530 (7th Cir. 2005);
Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir. 2002).
During the hearing neither Pinkston nor his witnesses
could identify any other guards that were present on the
cell block at the time of his fight with Smith, that would
have been in a position to help Madry open the cell door.
Nonetheless, in his brief, without citing any support in
the record, Pinkston argues that the magistrate judge
should have credited Pinkston’s testimony that Madry could
have opened his cell from the control room by himself, over
that of at least two other credible witnesses. 15 However, the
procedural posture of this case falls under a judgment on
partial findings under Rule 52(c), not summary judgment
under Rule 56. Unlike summary judgment which requires
that judgment be rendered as a matter of law, a trial court
ruling on a motion for judgment on partial findings under
Rule 52(c) is acting in the capacity of a finder of fact,
weighing evidence and assessing the credibility of the

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No. 03-2973 17
16 In a tag-along argument, Pinkston claims that the district court
should have somehow surmised from Pinkston’s testimony that
another, unidentified guard or other person, helped Madry open
his cell so that the fight could take place. However, at the
evidentiary hearing Pinkston specifically renounced this newly
introduced theory, stating that he could not, and would not,
identify any other person that may have assisted Madry in
(continued...)
witnesses. See United States v. $242,484.00, 389 F.3d 1149,
1172 (11th Cir. 2004) (citing Caro-Galvan v. Curtis Richard-
son, Inc., 993 F.2d 1500, 1504 (11th Cir. 1993)); see also
Furth v. Inc. Publishing Corp., 823 F.2d 1178, 1179 (7th
Cir. 1987). Accordingly, appellate review of a judgment
rendered under Rule 52(c) is for clear error only, and we
afford the plaintiff no special deference and need not draw
any inferences in his favor. See Int’l Union of Operating
Engineers, Local 103 v. Indiana Constr. Corp., 13 F.3d 253,
257 (7th Cir. 1994) (holding that the district “court is within
its prerogative ‘to weigh the evidence, resolve any conflicts
in it, and decide for itself where the preponderance lies.’ ”)
(quoting Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d
1467, 1475 (7th Cir. 1993)).
Pinkston has failed to present us with any evidence which
would bolster his speculative claim that Madry could have
opened his cell door without the assistance of another
guard, thus allowing the fight to occur. Further, the record
is barren of any evidence which would suggest that there
was another guard present on the cell block who could have
assisted Madry in the opening of the cell door. Thus, after
considering the evidence of record and the transcript of the
hearing, it was not error, much less clear error for the
district court to adopt the magistrate judge’s recommenda-
tion that the defendants were entitled to judgment on
partial findings as to the failure to protect portion of
Pinkston’s claim. 16

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18 No. 03-2973
16 (...continued)
opening the door. In addition, an unidentified guard would
not helped Pinkston’s case, for in order to prevail on a § 1983
claim a plaintiff must identify those individuals who have
allegedly violated a constitutional right. See Harper v. Albert, 400
F.3d 1052, 1066 (7th Cir. 2005).
2. Deliberate Indifference to a Serious Medical Need
Next, Pinkston claims that the district court judge
erred in adopting the magistrate’s conclusion that neither
Madry nor Grisselle violated his Eighth Amendment
rights by refusing him adequate medical attention following
the fisticuffs with Smith. Specifically, Pinkston argues that
the magistrate’s determination that his swollen cheek,
combined with his split lip did not rise to the level of an
objectively serious medical condition, constituted clear
error. Pinkston maintains, not only that his split lip and
swollen cheek constituted an objectively serious medical
need, but also that Madry and Grisselle were deliberately
indifferent to that need by failing to request or provide
adequate medical care. We disagree.
As the magistrate judge noted, in order to prevail on an
Eighth Amendment claim for failure to provide medical
care, a plaintiff has the burden of demonstrating that
“(1) the harm to the plaintiff was objectively serious; and (2)
the official was deliberately indifferent to her health
or safety.” Board, 394 F.3d at 478, accord Farmer, 511
U.S. at 834-37. At the evidentiary hearing Pinkston failed
to establish either prong of this long-standing test.
Initially, we note this court has held that injuries, such as
those alleged by Pinkston—a split lip and a swollen
cheek—do not rise to the level of an objectively serious
medical need. For example, in Davis v. Jones, this court
held that a one-inch laceration to an arrestee’s temple, that
was neither deep enough or long enough to require stitches,

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No. 03-2973 19
and a scraped elbow did not require prompt medical
attention under the Eighth Amendment. See Davis v. Jones,
936 F.2d 971, 972-73 (7th Cir. 1991). In sum, Pinkston’s
split lip and swollen cheek do not qualify as injuries that
are “so obvious that even a lay person would easily recog-
nize the necessity for a doctor’s attention.” Wynn, 251 F.3d
at 593.
Furthermore, even if we were to assume, for purposes
of argument only, that Pinkston has indeed somehow
established an objectively serious medical need, he has
certainly failed to demonstrate that Madry and Grisselle
were deliberately indifferent to that hypothetical need. See
Board, 394 F.3d at 478; see also Hughes v. United Van
Lines, Inc., 829 F.2d 1407, 1420 (7th Cir. 1987) (holding
that: “[w]hen findings are based on determinations regard-
ing the credibility of witnesses, Rule 52 demands even
greater deference to the trial court’s findings; for only the
trial judge [is in a position to be] aware of the variations in
demeanor including but not limited to the actions, manner-
isms, and facial expressions that bear so heavily on the
listener’s understanding of and belief in what is said.”);
United States v. Woods, 233 F.3d 482, 484 (7th Cir. 2000)
(holding that we will not second-guess the credibility
determinations of a trial judge, because “he or she has the
‘opportunity to observe the verbal and nonverbal behavior of
the witnesses focusing on the subject’s reactions and re-
sponses to the interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture and body move-
ments,’ as well as confused or nervous speech patterns in
contrast with merely looking at the cold pages of an appel-
late record.”) (emphasis in original) (citations omitted). The
record clearly supports the conclusion that Madry and
Grisselle both undertook necessary steps to treat Pinkston
for his injuries immediately after the altercation with Smith
took place. For instance, Pinkston himself testified that
after Madry “went into the control booth,” Grisselle came to

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20 No. 03-2973
17 Indeed, the lackadaisical and even obstinate attitude that
Pinkston exhibited towards his requests for medical help regard-
ing his on-again/off-again “serious” injuries in the days following
the fight is compelling evidence that those injuries were, in fact,
very minor.
his cell “looked at [his] lip, and then went into the nurse’s
station and got some skin closures, some Band-Aids, some
tape, [and] some ice.” After securing the medical supplies,
Pinkston testified that Grisselle entered his cell and “taped
and bandaged” his split lip. Further, Pinkston testified that
Grisselle returned shortly thereafter, assessed his condi-
tion, and secured additional “medical supplies” in order to
change the dressing on his lip. There was nothing indiffer-
ent, much less deliberately indifferent about the care and
treatment offered by the officers that day. See Wynn, 251
F.3d at 593; Farmer, 511 U.S. at 835 (stating that “deliber-
ate indifference entails something more than mere negli-
gence.”)
What’s more, the record establishes that if anyone was
indifferent to Pinkston’s injuries, it was Pinkston himself.17
It is undisputed that Pinkston failed to formally request
medical attention until approximately four days after the
altercation took place—the fight allegedly took place on
September 19, 1999, and despite the fact that he was
allegedly “seriously injured” Pinkston did not submit a
medical attention request form until September 23, 1999.
Citing this fact, the magistrate judge correctly concluded
that even Pinkston did not consider his injuries serious
enough that they rose “to the level of injuries which [were]
life threatening or pose[d] a risk of needless pain or linger-
ing disability if not treated at once as required by the
Eighth Amendment.” Pinkston v. Grisselle, No. 3:00-CV-
090RM at *8 (N.D. Ind. May 13, 2003); see Davis v. Jones,
936 F.2d 971, 972 (7th Cir. 1991). Thus, summoning the
services of a physician/surgeon was not necessary under the

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No. 03-2973 21
factual situation presented, for “a prison official cannot be
found liable . . . for denying an inmate humane conditions
of confinement unless the official knows of and disregards
an excessive risk to inmate health or safety; the official
must both 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.” Farmer, 511 U.S. at 837.
In addition, the record is replete with repeated instances of
Pinkston being most uncooperative with medical staff and
refusing medical assistance when it was offered to him,
such as the various occasions on which he refused doctor-
ordered x-rays to assist in determining whether or not
any bones in his face had been broken. See supra p. 5-6.
Thus, because the record is most clear that Pinkston’s
injuries were not objectively serious and because the prison
staff’s actions were anything but deliberately indifferent,
the district court did not commit clear error, or err in any
way, when adopting the magistrate judge’s finding that
Pinkston’s failure to provide medical attention claim should
fail.
B. The District Court’s Adoption of the Magistrate Judge’s
Recommendation
Pinkston also claims that the district court violated 28
U.S.C. § 636(b)(1)(B) by allowing the magistrate judge to
conduct a “quasi bench trial rather than an evidentiary
hearing” and that the court erred by “rubber stamping”
the magistrate’s decision rather than conducting a more
thorough de novo review of the evidentiary hearing. This is
rather innovative, yet arrantly unavailing argument.
Section 636(b)(1)(B) of Title 28 specifically provides that
a district court judge “may designate a magistrate judge
to conduct hearings, including evidentiary hearing, and
to submit to a judge of the court proposed findings of

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22 No. 03-2973
fact and recommendations for the disposition . . . of any
motion excepted in subparagraph (A) . . . .” This is exactly
what Judge Miller did when he drafted his order instructing
Magistrate Judge Nuechterlein to “conduct such proceed-
ings as are required and, when appropriate, enter into the
record a written order setting forth the disposition of all
nondispositive pretrial matters now pending . . . and further
to conduct hearings, including evidentiary hearings and
trial, and to submit proposed findings of fact and recom-
mendations for the disposition of the plaintiff’s complaint
pursuant to 28 U.S.C. § 636(b)(3).”
As Pinkston correctly points out, 28 U.S.C. § 636(b)(3)
requires that a magistrate judge must procure “the consent
of the parties” in order to conduct a bench trial. Members v.
Paige, 140 F.3d 699, 701 (7th Cir. 1998). However, that
point was never reached in this case. A trial did not become
a necessity because, after the hearing, the magistrate judge
recommended—and the district court agreed— that the
judgment would be entered pursuant to Fed. R. Civ. P.
52(c). See id. (stating that “because the plaintiff
is a prisoner and the case concerns ‘conditions of con-
finement’ . . . the judge could refer the case to a magis-
trate judge for a hearing and recommendation under
§ 636(b)(1)(B), subject to de novo review by the district
judge”). Thus, since the magistrate judge was acting
well within the scope of his authority and jurisdiction
pursuant to § 636(b)(1)(B) by overseeing the commencement
of an evidentiary hearing, Pinkston’s musings about the
requirements of 28 U.S.C. § 636(b)(3) are superfluous. In
addition, any claim by Pinkston that the magistrate judge
conducted a “quasi bench trial” is misplaced, for the eviden-
tiary hearing that was convened was well within
the strictures of § 636(b)(1)(B), as was the magistrate’s
recommendation to the district judge that judgment be
entered under Rule 52(c). See, e.g., McCarthy v. Bronson,

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No. 03-2973 23
500 U.S. 136, 140-44 (1991); Goffman v. Gross, 59 F.3d 668,
670-672 (7th Cir. 1995).
Finally, Pinkston quibbles with what he sarcastically
characterizes as the district court’s “rubber stamping” of the
magistrate judge’s proposed findings of fact and recommen-
dations for disposition. We disagree.
Section 636(b)(1) of Title 28 requires that, where a party
files written objections to a magistrate judge’s proposed
findings or recommendations, “[a] judge of the court shall
make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made.” This means that while the statute
requires a “de novo determination” by the district court, a
“de novo hearing” is not required. United States v. Raddatz,
447 U.S. 667, 674 (1980). As the Supreme Court stated in
Raddatz, there is “nothing in the legislative history of the
statute to support the contention that the judge is required
to rehear the contested testimony in order to carry out the
statutory command to make the required ‘determination.’ ”
Id.
Here Judge Miller complied with both the spirit and the
letter of the statute by performing a “de novo review of
the transcript of the evidentiary hearing conducted on April
30 and May 1, 2003.” And, as evinced by his statement that
he had “no difficulty in reading the handwritten objections,”
it is clear that Judge Miller conducted a thorough review of
all objections and responses made by Pinkston to the
magistrate judge’s recommendation. See Goffman, 59 F.3d
at 671 (stating that “if following a review of the record the
district court is satisfied with the magistrate judge’s
findings and recommendations it may in its discretion treat
those findings and recommendations as its own”); see also
United States v. Larson, 760 F.2d 852, 857 (8th Cir. 1985);
Andrews v. Deland, 943 F.2d 1162, 1170-71 (10th Cir. 1991).
It is clear that Pinkston’s argument in this regard is

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24 No. 03-2973
nothing more than a collateral attack on the magistrate’s
reasoning, masquerading as an assault on the district
court’s entirely acceptable decision to adopt the magistrate’s
opinion instead of conducting an evidentiary hearing on its
own. However, the law requires the district judge to do no
such thing. See Raddatz, 447 U.S. at 674.
Despite Pinkston’s suggestion that we should do other-
wise, Judge Miller is a most knowledgeable, experienced
and well-respected Article III judge and, without strong
evidence to the contrary, we will take him at his word when
he informs us that he has conducted a de novo review and
considered the plaintiffs objections in compliance with §
636(b)(1). See United States v. Severson, 49 F.3d 268, 273
(7th Cir. 1995); United States v. Rodriguez, 888 F.2d 519,
521-22 (7th Cir. 1989); see also Stokes v. Singletary, 952
F.2d 1567, 1576 (11th Cir. 1992); United States v. Remsing,
874 F.2d 614, 618 (9th Cir. 1989); cf. Orpiano v. Johnson,
687 F.2d 44, 47-48 (4th Cir. 1982) (holding that “[f]ailure to
review the evidence presented to the magistrate and failure
even to have a transcript filed with the district court . . .
was reversible error”); United States v. Tortora, 30 F.3d 334,
337 (2d Cir. 1994) (holding that: “By blindly adopting the
magistrate judge’s findings, apparently without ever having
received a report and recommendation, the district court
violated § 636(b)(1).”). To do otherwise would be contrary to
our very system of law. Accordingly, we refuse to accept
Pinkston’s invitation to inquire as to whether the district
court “rubber stamped” the magistrate’s opinion, and hold
that a district court’s assurance in a written order that
the court has complied with the requirements of 28 U.S.C.
§ 636 is sufficient, in all but the most extraordinary of
cases, to resist assault on appeal.
The decision of the district court is
A FFIRMED .

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No. 03-2973 25
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-14-06

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