Joey A. Peate v. Steve M C Cann

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-2937
J OEY A. P EATE ,
Plaintiff-Appellant,
v.
S TEVE M C C ANN ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99-CV-647-AS—Allen Sharp, Judge.
____________
A RGUED O CTOBER 29, 2001—D ECIDED J UNE 25, 2002
____________
Before F LAUM , Chief Judge, and P OSNER and D IANE P.
W OOD , Circuit Judges.
D IANE P. W OOD , Circuit Judge. Joey Peate is serving a
sentence at the Miami Correctional Facility in Bunker Hill,
Indiana. On July 2, 1999, while confined there, another in-
mate attacked Peate twice. Although Peate does not blame
any prison officials for the first attack, he argues that Ser-
geant Steve McCann, a correctional officer, violated his
rights under the Eighth and Fourteenth Amendments by
facilitating and failing to break up the second attack with
deliberate indifference to Peate’s safety. The district court,
after permitting only limited discovery, granted McCann’s
motion for summary judgment. We conclude that this dispo-
sition was premature and therefore reverse the grant of
summary judgment.

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2 No. 00-2937
I
Peate was in Miami’s recreation yard on the afternoon of
July 2, 1999. For some reason (undeveloped on this record),
Scott McIntyre, another inmate, crept up behind Peate and
thwacked him with a mesh laundry bag loaded with rocks,
dirt, bricks, and cement that McIntyre had gathered in the
yard. Before the day of the attack, McIntyre and Peate had
never had an altercation. On the afternoon in question,
however, they had already fought once for several minutes
until McCann, along with the other prison staff in the yard,
broke up the fracas. In order to do so, McCann had called a
code “10-10” (offender fight) over his radio to get assistance.
Once McCann was able to calm McIntyre down, he took the
laundry-bag weapon from McIntyre. McCann then took
McIntyre’s left arm and escorted him away from Peate and
toward the recreation gate.
What happened next is hotly disputed by the parties.
What is clear is that McIntyre regained his laundry-bag
weapon from McCann. The disagreement is over how he
managed to do this. Some witnesses claimed that McIntyre
grabbed it from McCann; others said that after a conver-
sation, McCann gave the bag to McIntyre; and finally
some recalled that McCann handed the bag off to McIntyre
as Peate was charging at both McIntyre and McCann. With
the bag restored to him, McIntyre broke away from McCann
and attacked Peate with his make-shift weapon once again.
Peate also had a weapon of sorts—a golf club from the
yard’s miniature golf course. It proved to be no match for
McIntyre’s bag, however; Peate ended up on the losing side
of the fight, bleeding profusely. The altercation continued
until Major Kimmel, Captain Payne and Lieutenant Batch-
elor arrived and restrained Peate while McCann restrained
McIntyre. Peate maintains that until the three additional
officials arrived on the scene, McCann stood by and watched
McIntyre continuously beat him.

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No. 00-2937 3
Peate sustained a dislocated finger and nerve damage in
his left hand as a result of the beating. He then filed a pro
se complaint on December 9, 1999, alleging that prison of-
ficials violated his Eighth and Fourteenth Amendment
rights by willfully and intentionally neglecting to protect
him from serious bodily injury. The district court dismissed
all claims except the Eighth Amendment claim against
McCann. McCann then moved for summary judgment on
the remaining claims, arguing that the undisputed facts
showed that he acted reasonably given the situation. The
district court agreed, finding nothing in the record to dem-
onstrate that McCann did anything but break up a fight
between two inmates. Peate filed a timely notice of appeal
from this judgment, as well as the district court’s denial of
his discovery requests. Although Peate acted pro se below,
he now has counsel appointed by this court.
II
Peate asserts that McCann violated his duty to protect
inmates from a prisoner attack when he re-armed McIntyre
and then stood by while McIntyre pummeled Peate with the
loaded bag. No one disputes that prison can be a violent
place. Nonetheless, prison officials have a duty to take rea-
sonable steps to protect prisoners from this violence; pris-
oners are not required to live in a violent state of nature
where brutal attacks are ignored. See Farmer v. Brennan,
511 U.S. 825, 833 (1994). The Supreme Court has recog-
nized that prisoners may obtain relief under the Eighth
Amendment for injuries sustained in prison if the injury is
objectively serious and the prison official acted with de-
liberate indifference to the safety and health of the inmate.
Id. at 834. McCann does not argue that Peate’s injury was
not objectively serious. Instead, he maintains that his be-
havior was at worst unreasonable and certainly not deliber-
ately indifferent. The district court agreed. We review a dis-

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4 No. 00-2937
trict court’s grant of summary judgment de novo. Doe v.
Howe Military Sch., 227 F.3d 981, 990 (7th Cir. 2000). In
doing so, we examine the record in the light most favorable
to Peate, the nonmoving party. Id. We may affirm the dis-
trict court’s judgment only if there are no material facts in
dispute. Id.
As Farmer held, “a prison official cannot be found liable
under the Eighth Amendment for denying an inmate hu-
mane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safe-
ty.” Farmer, 511 U.S. at 837. While this is a high hurdle for
a plaintiff, it is not insurmountable; a plaintiff does not
have to prove that the officer affirmatively intended harm
to the prisoner. Mayoral v. Sheahan, 245 F.3d 934, 938 (7th
Cir. 2001). Peate must demonstrate only that “the defend-
ants actually knew of a substantial risk that [the prisoner]
would seriously harm him.” Haley v. Gross, 86 F.3d 630, 641
(7th Cir. 1996) (emphasis in original). This is a question of
fact that may be established by circumstantial evidence.
Farmer, 511 U.S. at 842. On the other hand, McCann is
quite right to point out that negligence is not enough to
establish a constitutional violation. Luttrell v. Nickel, 129
F.3d 933, 936 (7th Cir. 1997). Indeed, prison officials who
actually knew of a substantial risk to inmate health or
safety are free from liability if they responded reasonably to
the risk, even if the harm ultimately was not averted,
because in that case it cannot be said that they were
deliberately indifferent. Farmer, 511 U.S. at 847; Soto v.
Johansen, 137 F.3d 980, 981 (7th Cir. 1998). The test of
deliberate indifference ensures that the mere failure of the
prison official to choose the best course of action does not
amount to a constitutional violation. Farmer, 511 U.S. at
844.
McCann maintains that his conduct was reasonable be-
cause there was no way for him to predict that McIntyre

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No. 00-2937 5
would attack Peate. The problem with this line of argument
is that it does not distinguish between the first and the sec-
ond attacks, even though Peate was careful to draw exact-
ly this line in his complaint. If this case were only about
the first attack, we would have no trouble agreeing with
McCann: he had no personal knowledge of any bad blood
between McIntyre and Peate, and so there was no way for
him to predict their fight. Nor does Peate’s complaint, when
read liberally, suggest that other factors should have
alerted McCann before the first attack. McCann further
argues that as a prison guard, he should not be required to
put himself at risk by breaking up a fight between two
inmates armed with weapons. This too is true. See MacKay
v. Farnsworth, 48 F.3d 491, 493 (10th Cir. 1995) (failing to
intervene between inmates fighting with weapons is not
deliberate indifference); Arnold v. Jones, 891 F.2d 1370,
1373 (8th Cir. 1989) (if intervening in a prison fight could
cause serious injury, guards have no duty to do so as a
matter of law).
Nonetheless, this reasoning, also adopted by the district
court, speaks only to the first fight. The second fight, which
the district court does not mention in its opinion, is another
matter. Peate’s claim is that McCann was deliberately in-
different when he re-armed McIntyre, minutes after he had
stopped the fight. It was the first fight that gave McCann
specific knowledge that there was a substantial risk that
McIntyre would use the weapon to injure Peate. See
Farmer, 511 U.S. at 842.
McCann wants this court to accept his version of
events—that Peate attacked McIntyre and that McCann
attempted to stop the second fight with CNS spray. The
district court did just that. It noted that “there is [ ] nothing
in this record to indicate that Sgt. McCann did anything
other than to try to break up the fight between these two
inmates.” But this account is disputed by competent evi-
dence in the record. Several witnesses stated in their affi-

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6 No. 00-2937
davits that McCann handed McIntyre the laundry bag of
bricks after engaging in a discussion. “I saw the offender
McIntyre reach for the net bag from the Sgt. McCann, who
gave the bag back to this offender who again started try-
ing to attack Mr. Peate”; “Sgt. McCann picked up the net
bag/alleged weapon, then gave it back to the white offender
who then attempted to strike offender Peate a few more
times.” All of these eyewitness statements and more were
before the district court by affidavit. While a jury would of
course not be required to credit the testimony from the by-
stander inmates, it was improper for the district court to
disregard these statements at the summary judgment
stage. Even if, under McCann’s version of the fight, he was
at worst negligent and thus not liable, that is not the per-
spective we must take at this stage of the litigation. In-
stead, we must view the record in the light most favorable
to Peate and draw reasonable inferences in Peate’s favor.
Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562
(7th Cir. 1996).
Accepting Peate’s view of events, which is supported by
affidavits stating that McCann re-armed McIntyre by re-
turning the laundry bag to him, there is sufficient evidence
to permit a trier of fact to find that McCann acted with de-
liberate indifference. Pavlick v. Mifflin, 90 F.3d 205, 208
(7th Cir. 1996). At a minimum, his actions could demon-
strate a disregard for Peate’s safety, given the nature of the
weapon all agree McIntyre had created. See generally
United States v. Vahovick, 160 F.3d 395 (7th Cir. 1998)
(noting that in prison all deadly weapons are dangerous and
only have one purpose whether or not they are hand-
crafted). Even if McCann was somehow unaware of the fact
that a laundry bag loaded with rocks and bricks could be a
weapon before the events of that afternoon, he witnessed
the first fight, and that alone was sufficient notice. Haley,
86 F.3d at 640; see also Pavlick, 90 F.3d at 208.

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No. 00-2937 7
McCann further argues that even if a factfinder found
that he actually returned the bag to McIntyre, this was a
reasonable response and possibly his only option, given the
type of weapon—a laundry bag filled with rocks. Although
McCann could not be liable if returning the bag to McIntyre
was his only option, or even a reasonable option, Farmer,
511 U.S. at 847, the question whether other options existed
is also a disputed fact on this record. It appears that there
were other prison employees in the recreation yard, and
McCann had just witnessed McIntyre use the laundry bag
as a weapon. There were also other prisoners standing
around. It is not clear why arming one of the two partici-
pants in the earlier fight was either the only option, or even
a reasonable option, if (as McCann asserts) it was Peate
who tried to resume fighting. Especially since we must as-
sume for present purposes that the second fight did not
break out until after McCann gave the bag back to McIn-
tyre, McCann cannot avoid a trial based on his alleged lack
of other options.
III
Peate is also appealing the district court’s rulings on some
of his discovery motions. Prior to McCann’s summary
judgment motion, Peate asked the Indiana State Prison in-
vestigator to produce and copy the investigation file pre-
pared after the July 2 fight. Peate hoped to use those doc-
uments to support his position that he was a victim of the
fight and to substantiate his version of McCann’s involve-
ment. McCann filed a motion to quash, arguing that the
information was confidential and its release would place the
prison staff at risk. That very same day, the district court
granted the motion to quash without giving Peate a chance
to respond. Peate then filed a motion to compel discovery,
reiterating his earlier argument. McCann responded, now
arguing that Peate never even attempted to informally

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8 No. 00-2937
resolve the discovery dispute, never issued any other
discovery requests, and was simply trying to get out of
paying the 15 cents per copy that the prison charges such
requests. The district court denied Peate’s motion to compel.
This court will reverse the district court’s quashing of a
subpoena only for an abuse of discretion. Deitchman v. E.R.
Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir. 1984).
Under this standard, the relevant inquiry is not how this
court would have ruled, but instead is “whether any rea-
sonable person could agree with the district court.” Id. (em-
phasis in original). Here, although there were problems
with the district court’s initial handling of the motion, inso-
far as it acted ex parte, without providing Peate any oppor-
tunity to respond, in the end any prejudice Peate may have
suffered was dissipated. Eventually, the district court en-
tertained Peate’s arguments about the material he was
seeking. We conclude that Peate was not prejudiced by the
district court’s grant of the motion to quash, In re Rassi,
701 F.2d 627, 631 (7th Cir. 1983), and for that reason, we
see no reversible error in the district court’s ruling. Natu-
rally, it will be up to the court on remand to decide how to
handle any new discovery requests.
Peate next argues that the district court abused its dis-
cretion when it failed to grant his motion to compel, did not
permit an in camera review of the investigation file, and
refused to order a summary of the non-sensitive informa-
tion. This court has often endorsed the in camera process as
it “allows the court to engage in a more delicate balancing
of the competing interests,” rather than deciding a discov-
ery issue based solely on the representations of the parties.
United States v. Phillips, 854 F.2d 273, 278 (7th Cir. 1988).
This procedure, however, is not one that is required. It is
within the district court’s discretion, id., and Peate has not
shown an abuse of discretion here.

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No. 00-2937 9
Peate argues he was prejudiced by this discovery denial
because information critical to his case is in the investiga-
tion file. The non-sensitive information Peate sought (i.e.,
information regarding whether McCann gave the bag back)
might have been intermixed with sensitive information in
his discovery “packet.” Id. at 277. We recognize, however,
that the government has an interest in maintaining the
confidentiality of files containing sensitive information
regarding on-going investigations. Id. Although this interest
will not always trump the interest of the opposing party,
the necessary evaluation of the competing interests is best
left to the district court. Packman v. Chicago Tribune Co.,
267 F.3d 628, 646-47 (7th Cir. 2001). The district court’s
determination was not unreasonable given that Peate
sought information regarding McIntyre’s potential affilia-
tion with the Aryan Nation, information that the prison had
valid security reasons to maintain in a confidential manner.
Once again, in light of the remand for trial, it will be open
to the district court to consider alternative options that will
permit Peate additional discovery if the court concludes in
its discretion that this is appropriate.
IV
The judgment of the district court is REVERSED , and the
case is R EMANDED for further proceedings consistent with
this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-25-02

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