Wilson v. Falk

877 F.3d 1204
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 19, 2017
Docket16-1310
StatusPublished
Cited by42 cases

This text of 877 F.3d 1204 (Wilson v. Falk) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Falk, 877 F.3d 1204 (10th Cir. 2017).

Opinion

McHUGH, Circuit Judge.

Colorado state prisoner Terrance D. Wilson was stabbed eleven times by a fellow inmate while incarcerated at the Li-món Correctional Facility in Limón, Colorado. Having survived the attack, Mr. Wilson brought this action under 42 U.S.C. § 1983 alleging that Frances Falk, James Fox, Steven Frank, and Sherwyn Phillip—each an employee of the Colorado Department of Corrections (“CDOC”)—vi-olated his Eighth Amendment rights by failing to protect him from the assault. The district court granted summary judgment in favor of the defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm as to defendant Falk, but reverse as to defendants Fox, Frank, and Phillip.

I. BACKGROUND

This case involves a dispute between the Crips and the Sureños, two rival gangs. Mr. Wilson, a former affiliate of the Crips, is currently serving a thirty-two-year prison sentence in connection with the 2011 homicide of Nathan Engle, a purported Sureños affiliate. While awaiting trial, Mr. Wilson was detained in the Larimer County Detention Facility (“Larimer”) along with Christopher Green, whom Mr. Wilson recognized as a leader of the Sureños. Mr. Green allegedly told two people close to Mr. Wilson that the Sureños were making shanks in order to kill Mr. Wilson in apparent retaliation for Mr. Engle’s death. And, indeed, Mr. Wilson reports that he was assaulted on three occasions while detained at Larimer—once on August 14, 2011, by Mr. Green and an unknown Sure-ño affiliate, and twice on October 21, 2011, first by an inmate named Charles Cousino, purportedly at Mr. Green’s request, and later the same day by an inmate named Feliciano Carillo, whom Mr. Wilson describes as “a Sureño shot caller.” Aplt. App’x 135-36. Mr. Wilson filed grievances with respect to each assault.

Mr. Wilson was convicted in January 2012, and the following month he was transferred from Larimer to the Denver Reception and Diagnostic Center (“DRDC”), where he asserts that he was yet again attacked by a Sureño. During his time at DRDC, Mr. Wilson states that he completed intake forms in which he listed his enemies and documented his “psychological fear of Mexican gang members.” Id, at 136. On April 9, 2012, Mr. Wilson was transferred from DRDC to the Limón Correctional Facility (“Limón”), where he would continue serving his thirty-two-year sentence. Within a day of arriving at Li-món, Mr. Wilson participated in orientation, an event that he used as an opportunity to disclose his concern about the Sureños in general and Mr. Green, Mr. Carillo, and Mr. Cousino in particular. Mr. Wilson alleges that shortly after the orientation he spoke vrith defendant Falk, who he understood to be the warden at Limón, about his concerns with the Sureños and the previous attacks. Although Ms. Falk does not recall ever meeting or talking to him, Mr. Wilson says that she advised him to talk to a lieutenant and case manager about the Sureños.

Mr. Wilson was preliminarily assigned to Unit 1, the prison’s transition unit designated for inmates transferring in or out of Limón or who otherwise require temporary placement. About one week after arriving at Unit 1, Mr. Wilson was reassigned to Unit 3. There are six living units at Limón; each living unit has three pods separated by walls, and each pod in turn has three tiers. Inmates are generally not permitted to leave the pod to which they are assigned. In general, prison officials at Limón do not attempt to separate gangs from each other. Instead, housing assignments attempt to balance the number of gang members assigned to each living unit. Once in Unit 3, Mr. Wilson claims that he “came face to face with” his old nemesis Mr. Green, who seemingly followed a similar path from Larimer to Limón and was now “the Sureño shot caller” at the Limón facility. Id. Mr. Wilson says that he advised defendants Lieutenant Fox and Sergeant Frank “of the issues between me and Green,” and that Mr, Green was thereafter placed on the second level of the same pod. 1 Id.

On April 17 and April 19, Mr. Wilson claims to have met with defendant Phillip, his case manager. On both occasions Mr. Wilson states that he informed Mr. Phillip ■ of “the- Sureño issue” and “requested transfer to another facility.” Id. But after those two meetings Mr. Phillip, allegedly “refused to discuss the issue of protection ... from the Sureños.” M-. Mr. Wilson complained about Mr. Phillip’s alleged recalcitrance to Commanding Officer Joshua Chase, who advised Mr. Wilson to file “kites,” shorthand for prison forms printed on yellow paper by which a prisoner can make written requests to meet with a prison official. 2 Id. at 79, 136, 144. Mr. Wilson thereafter submitted at least ten kites, which he either gave to Mr. Chase or placed in the “kite box.” Id. at 136. Sometimes Mr. Wilson asked friends to place his written kites in the .kite box for: him.

On June 9, 2012, Mr. Wilson was allegedly attacked by a fellow inmate named Manuel Diaz and another unknown person. Mr. Diaz allegedly followed Mr..Wilson into his cell and. stabbed him with a long rusty nail, inflicting deep cuts along Mr. Wilson’s chest, stomach, arms, and head. Mr. Wilson claims that he was able to subdue Mr. Diaz, at which point “a group of Sureños” rushed into his cell, carried Mr. Diaz away, and warned that they would “finish killing” Mr. Wilson ■ if he reported the attack. Id. at 137. Mr. Wilson thereafter continued to discreetly put kites in the kite box and repeatedly asked Mr. Chase to talk to Mr. Phillip. He also asked his friends to talk to prison officials.

On June 21, 2012, • Mr. Wilson claims that Mr. Green, backed by at least fifteen members of the Sureño and Pica gangs, attempted to throw him over - a second floor railing, purportedly because they had heard he was talking to the authorities about Sureño threats and attacks. Other prison inmates are said to have intervened to prevent Mr. Wilson from going over the railing. Later that night, however, ¡two Sureños allegedly attacked Mr. Wilson in his cell, with additional one-on-one Sureño attacks following on June 22 and 23. Mr. Wilson states that, he wrote kites documenting all of these attacks and-that his friends put them in the .kite box on his behalf. 3

At some unspecified point in time, Mr. Wilson allegedly asked Mr. Phillip, his case manager, not to let him bé placed in Unit 3. Mr. Wilson also asked Mr. Frank and Mr. Fox not to let him be assigned to-Units 2, 3, or 4, all of which housed a large number of Sureños. One of Mr. Wilson’s fellow inmates, Edward Drake, heard Mr. Wilson make this latter request. Nevertheless, Mr. Wilson was assigned to Unit 3 despite the purported availability of beds in Units 1 and 5. Another fellow inmate, Nathan Nulle, allegedly turned in “a stack of kites” to prison officials, including Mr. Phillip, because he was told of a “real threat to Mr. Wilson’s life.” Id. at 137,139.

On July 2, 2012, Mr. Wilson was talking to his daughter on the telephone, at which point Mr- Diaz allegedly stabbed him eleven times, inflicting injuries to Mr. Wilson’s heart, lungs, head, and neck. Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
877 F.3d 1204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-falk-ca10-2017.