Randy P. O’b Rien v. Indiana Department of Correction , by

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3064
R ANDY P. O’B RIEN ,
Plaintiff-Appellant,
v.
I NDIANA D EPARTMENT OF C ORRECTION , by and through its
commissioner E VELYN R IDLEY T URNER , and C RAIG A.
H ANKS , Superintendent, in his individual capacity,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 18—David F. Hamilton, Judge.
____________
A RGUED A PRIL 4, 2007—D ECIDED J ULY 26, 2007
____________
Before K ANNE , W ILLIAMS , and S YKES , Circuit Judges.
K ANNE , Circuit Judge. Randy O’Brien has been a
prisoner in Indiana since 1996, having been convicted of
rape, sexual battery, and burglary. In 2001, he was
attacked and beaten by two other inmates. In 2003, he
brought suit under 42 U.S.C. § 1983, alleging that the
warden was deliberately indifferent to his safety in
violation of the Eighth Amendment. In 2005, he sought to
add additional defendants to his suit. That motion was

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2 No. 06-3064
denied. The district court entered summary judgment in
favor of the defendants. He appeals the denial of the
motion to add parties and the entry of summary judgment.
For the reasons set forth below, we affirm.
I. H ISTORY
Before his conviction, O’Brien was a corrections officer at
the Indiana Youth Center. Almost immediately upon his
arrival at the Wabash Valley Correctional Facility in 1996
he was recognized by other inmates as being a former
guard. Realizing that his former life was likely to make
him a tempting target for other inmates, he requested that
the prison take him into protective custody. He was
removed from the general prison population and placed
into the facility’s “D Segregation” unit while the prison
considered his request. About three weeks later, and based
on an evaluation by a case worker, O’Brien was moved into
the left wing of the “D Housing Unit.” Although not
segregated from the entire prison population, the prison
tended to place “at-risk” prisoners such as O’Brien in the
left wing of the D Housing Unit. The left wing also in-
cluded some members of the general prison population—
that is, non “at-risk” prisoners. O’Brien did not renew or
repeat his request for a more segregated arrangement.
Four and one-half years passed. On January 14, 2001,
two other inmates in the D Housing Unit attacked O’Brien
and, among his other injuries, he lost his left eye. O’Brien
hired Indianapolis attorney C. Bruce Davidson, Jr. In
January 2003, seven days before the statute of limitations
would have run, he filed a complaint alleging that the
Indiana Department of Correction and the warden of
Wabash Valley Correctional Facility had violated O’Brien’s
right under the Eighth Amendment to be free from cruel
and unusual punishment. See U.S. C ONST . amend VIII.

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No. 06-3064 3
The district court directed O’Brien to support the legal
sufficiency of his complaint. On April 8, 2003, attorney
Davidson filed a motion seeking an extra two days to
respond to the court’s order. For the purposes of this case
Davidson was never heard from again. The court granted
the two-day extension, and then granted three additional
extensions sua sponte, apparently in the hopes that
Davidson would reply. Having heard nothing from
Davidson, the district court eventually dismissed the
complaint with prejudice.
In November 2003, another Indianapolis attorney, who
happened to also be Davidson’s landlord, noticed that
Davidson was not diligently contacting his clients and was
not paying his rent in a timely manner. He left a note for
Davidson to contact him. Davidson did not immediately
reply. We now know that Davidson was busy robbing a
bank in Cincinnati that November—the first of roughly
twenty-five bank robberies that attorney Davidson would
commit over the next two years.
By January 2004, it became clear that Davidson had
abandoned his practice of law. An attorney was appointed
by the Indiana Supreme Court as a Reviewing Master and
took possession of Davidson’s files. That attorney noticed
that O’Brien’s case had been dismissed, and he contacted
O’Brien’s mother, who then notified O’Brien. In March
2004, O’Brien, through new counsel, moved the district
court for relief from judgment due to his previous attor-
ney’s abandonment of his practice. See F ED . R. C IV . P. 60.
The court granted the motion, and O’Brien filed an
amended complaint in June 2004.
In February 2005, O’Brien filed a motion to add new
parties to the complaint. The defendants opposed the
motion, and the district court denied the motion. In June
2006, the district court entered summary judgment in
favor of the defendants. O’Brien now appeals the denial of

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4 No. 06-3064
his motion to add new defendants and the entry of sum-
mary judgment in favor of the defendants.
II. A NALYSIS
A. The Motion to Add Parties
Rule 15(a) requires that leave to amend a pleading “shall
be freely given when justice so requires.” F ED . R. C IV . P.
15(a). But there is a catch: O’Brien sought to add parties
to the complaint more than two years after the statute of
limitations had run against those persons. O’Brien must
also satisfy Rule 15(c), which allows the amended pleading
to relate back to the date of the original pleading under
certain limited conditions. The district court’s decision to
deny a motion to amend a pleading is reviewed for abuse
of discretion. Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.
2005).
The text of Rule 15(c) requires that the newly added
parties must have had notice of the action within the time
period for service of process, they must have known that
“but for a mistake concerning the identity of the proper
party, the action would have been brought against” them,
and the amended pleading must concern the same conduct,
transaction, or occurrence. F ED . R. C IV . P. 15(c)(2)-(3).
O’Brien’s Motion to Add Parties addressed the question of
whether the alleged conduct arose out of the same transac-
tion or occurrence. R. 49 ¶ 23. But it did not address the
question of whether the new parties were on notice of the
original suit or had knowledge that they were the rightful
defendants. Instead, O’Brien’s argument relied heavily on
the admittedly unseemly level of neglect demonstrated by
his first attorney. The defendants did devote some portion
of their pleading to the question of whether an error on the
part of the plaintiff should allow an unsuspecting defen-
dant to be added long after the statute of limitations had
passed. R. 50 ¶ 8.

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No. 06-3064 5
In Delgado-Brunet v. Clark, 93 F.3d 339, 344 (7th Cir.
1996), we addressed the question of whether a prisoner’s
civil suit may be amended after the statute of limitations
had run in order to name new individual defendants who
were not on notice of the original complaint. Although
Delgado-Brunet was a Bivens action, the opinion made
clear that the analysis was applicable to claims arising
under § 1983 as well. Id. Rule 15(c) and Delgado-Brunet
clearly instructed the district court that the amended
complaint should not have related back. The appellant
repeats here many of the same arguments that he made
below, focusing on the neglect of O’Brien’s original attor-
ney. But the question for us is not whether we would make
the same decision that the district court did. We must be
convinced that the decision by the district court was
fundamentally wrong. Chavez v. Ill. State Police, 251 F.3d
612, 628 (7th Cir. 2001).
We see no reason why the order denying the motion was
an abuse of discretion. We are not faced with the question
of whether it would have been an abuse of discretion if the
district court had allowed new parties to be named at the
time that the suit was revived in the spring of 2004. We
are well aware of the unusual level of professional incom-
petence demonstrated by Davidson in his handling of this
case in 2003. Whether it would have been within the range
of the district court’s discretion to allow those new parties
to be added once O’Brien’s case was being handled by more
diligent lawyers is a question for another case. We hold
simply that in this case, where O’Brien escaped the results
of his lawyer’s incompetence via a Rule 60 motion in June
2004 and was given a second bite at the apple, the district
court did not abuse its discretion in denying him a third
bite at the apple after an additional nine months had
passed.

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6 No. 06-3064
B. Summary Judgment
O’Brien does not address the district court’s dismissal of
his claim for injunctive relief from the Department of
Correction. We turn, then, to the claims against the named
defendant, Craig Hanks. The Eighth Amendment provides
that “cruel and unusual punishments [shall not be] in-
flicted.” U.S. C ONST . amend VIII. “A prison official’s
‘deliberate indifference’ to a substantial risk of serious
harm to an inmate violates the Eighth Amendment.”
Farmer v. Brennan, 511 U.S. 825, 828 (1994). Liability
exists “only if [the defendant] knows that inmates face a
substantial risk of serious harm and disregards that risk
by failing to take reasonable measures to abate it.” Id. at
847.
The parties here seem to agree that the first require-
ment, that Hanks had a subjective knowledge that O’Brien
faced a substantial risk of serious harm, is met. The only
question on appeal is whether he failed to take reasonable
measures to abate the harm. Because the case comes to us
after entry of summary judgment in favor of the defendant,
we review the judgment de novo and view all facts and
draw all inferences in the light most favorable to the
plaintiff. Vining-El v. Long, 482 F.3d 923, 924 (7th Cir.
2007). Summary judgment is appropriate if the “pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
F ED . R. C IV . P. 56(c).
Hanks argues that the pleadings and evidence do not
show any genuine issue of material fact, and that his
actions do not rise to the level of deliberate indifference as
a matter of law. We agree. Farmer does not require that
the harm ultimately be averted, as long as the defendant
reasonably responded to whatever known risks there were.

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No. 06-3064 7
511 U.S. at 847. This makes sense: the question of whether
a defendant was deliberately indifferent must logically
depend on what information was available to the defen-
dant at the time that a decision was made. Based on the
evidence in the record, we know that almost immediately
upon entering Wabash Valley, O’Brien was taken into
segregation so that the danger to him could be evaluated.
We also know that the case worker considered whether
there were specific threats directed against O’Brien, or
whether this was a generalized danger that his former life
would pose to him. Finding nothing to suggest that O’Brien
was in any more danger than other former police and
corrections officers, the prison placed him where other at-
risk inmates were placed. The evidence indicates that this
course of action had been followed repeatedly in the past,
and there is nothing in the record to show that the prison
should have had any reason to think it would not be
successful in this case.
O’Brien makes a colorful argument, analogizing the
prison’s course of action to jumping out of a plane without
a parachute and being lucky enough to survive the fall.
The argument proceeds that O’Brien’s survival for four and
one-half years by luck or by skill should not be used to
justify the prison’s decision to throw him out the door of
the plane in the first place. But we think that he misses
the point here: O’Brien was not the first former officer
placed in D Housing. The prison had been placing people
like him in exactly these circumstances long before he
arrived on the scene and there is nothing in the record to
indicate that any member of the prison staff had a reason
to think it would not continue to provide relative safety for
those inmates. By the time O’Brien came along, “jumping
out of planes without a parachute” had become common
practice and he, as the plaintiff, provides no evidence that
anybody had ever been harmed by it.
O’Brien argues that the question of whether the warden
took reasonable steps is a genuine issue of material fact

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8 No. 06-3064
that ought to at least be presented to a jury. Our circuit
precedent is to the contrary. Lewis v. Richards, 107 F.3d
549, 553 (7th Cir. 1997). In Lewis, a prisoner came to
believe, after being assaulted by members of a prison gang,
that he was likely being targeted for further assaults by
the same gang. Id. at 551-52. He requested protective
custody and was granted it for a period of time, but he was
later transferred back into the general prison population,
where he was assaulted again. Id. We affirmed entry of
summary judgment in favor of the prison staff, noting that
if “the defendants in this case simply refused to do any-
thing, [the] case might survive summary judgment.” Id. at
553. Having transferred the prisoner to a different portion
of the prison, thus denying him protective custody, the
“subsequent events proved at best that the defendants
exercised poor judgment in simply choosing to send Lewis
to a different dormitory. Exercising poor judgment,
however, falls short of meeting the standard of consciously
disregarding a known risk to his safety.” Id. at 554 (citing
McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991)).
The facts here are remarkably similar. Faced with
O’Brien’s status as a former prison guard, the staff at
Wabash Valley initially brought him into segregation for
his safety. Having considered the nature of the threat
against him and the availability of placing O’Brien among
the at-risk population in D Housing, the prison chose to
place him with the other former police officers, guards, and
prosecutors in D Housing. As in Lewis, this decision does
not amount to an unreasonable response to a known risk.
III. C ONCLUSION
For the forgoing reasons, the judgment of the district
court is A FFIRMED .

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No. 06-3064 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-07

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