United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
Lowder, a prisoner without a lawyer, filed a motion for a
preliminary injunction seeking protective custody. The
purpose of preliminary injunctive relief is to minimize the
hardship to the parties pending the ultimate resolution of
the lawsuit.” Platinum Home Mortg. Corp. v.
Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th
Cir.1998). “In order to obtain a preliminary
injunction, the moving party must show that: (1) they are
reasonably likely to succeed on the merits; (2) no adequate
remedy at law exists; (3) they will suffer irreparable harm
which, absent injunctive relief, outweighs the irreparable
harm the respondent will suffer if the injunction is granted;
and (4) the injunction will not harm the public
interest.” Joelner v. Village of Washington Park,
Illinois, 378 F.3d 613, 619 (7th Cir. 2004).
Lowder alleges that, in April 2019, he lived in B cellhouse
and gave Lieutenant Wilson a detailed letter asking for
protective custody based on the threat posed by other inmates
in the cellhouse. Lieutenant Wilson moved Mr. Lowder to
another cell on the first floor and secured him in the cell.
He told Mr. Lowder that he would remain in that cell until
the protective custody paperwork could be processed. Mr.
Lowder responded that he still felt vulnerable and unsafe
from the other inmates in the cellhouse. Mr. Lowder withdrew
his request for protective custody the following morning and
was released from the cell. In June 2019, Mr. Lowder again
requested protective custody but again withdrew it after he
was told that he would need to be placed in secured cell on
the first floor.
Lowder says that on June 14, 2019, correctional staff found
him with a weapon, which he had obtained because he believed
he needed for self-defense. He was moved to D cellhouse. On
June 30, inmates from D cellhouse, who had been in contact
with the inmates from B cellhouse, poisoned and drugged Mr.
Lowder. After threatening self-harm, Mr. Lowder was placed in
a suicide watch cell in D cellhouse. Shortly thereafter, Mr.
Lowder began experiencing a burning sensation, which he
believed was pepper spray or chemical burns. He later saw an
inmate sprinkling dust into a fan blowing in Mr. Lowder's
cell. Mr. Lowder spit on a correctional officer and was moved
to a maximum security cell. On July 13, Mr. Lowder was moved
back to a cell in D cellhouse, where he remains in danger
from attacks by other inmates. He seeks placement in
Neal responded with a declaration stating that inmates
request who request protective custody are placed in a cell
near the officer's station in the cellhouse pending a
decision from the unit team manager. On April 23, 2019, Mr.
Lowder requested protective custody but withdrew the request
before a decision had been reached. On June 14, 2019, Mr.
Lowder was sent to restrictive housing after he was found
with a shank in his pocket. In July 2019, Investigator
Rodriguez investigated Mr. Lowder's claims of other
inmates targeting him, but she could find nothing to
substantiate these claims.
to Warden Neal's declaration, inmates in restrictive
housing are handcuffed and escorted whenever they leave their
cells. Mr. now currently has his own cell, showers alone, and
has recreation time alone in a recreational cage.
Correctional staff don't let Mr. Lowder be in the
presence of other inmates unless they are also handcuffed and
escorted by correctional staff. Mr. Lowder has been
disciplined for physical resisting staff and battery on staff
since his assignment to restrictive housing, so he will
remain in restrictive housing until at least December 14,
2019, when correctional staff will review his housing
assignment. Given the nature of his disciplinary history, he
will likely remain in restrictive housing thereafter.
reply, Mr. Lowder alleges that, in his housing unit, he is
frequently in the presence of unsupervised and unshackled
inmates, including those from other housing units who
distribute meals, collect laundry, or clean. He adds that
inmates from his housing unit can pick the locks for their
cells. Though he can't identify which inmates are causing
the chemical burns, he continues to experience them, and they
seem to coincide with the times when inmates from other
housing units are present.
reviewing Mr. Lowder's reply, the court deferred a ruling
on the motion for a preliminary injunction and granted the
Warden a chance to address the issues raised in the reply.
The court asked the Warden to explain any investigation that
took place with respect to Mr. Lowder's reports of being
targeted or his requests for protection, whether other
inmates have unsupervised access to Mr. Lowder's cell,
and how medical staff have responded to Mr. Lowder's
reports of chemical burns.
Warden filed a supplemental affidavit. He concedes that
inmates who serve as porters have some access to Mr. Lowder,
but those these inmates are screened and supervised, which
significantly reduces the risk of them attacking Mr. Lowder.
Notwithstanding that some inmates have access to Mr. Lowder
even in disciplinary segregation, the Warden has conducted a
substantial investigation into Mr. Lowder's allegations
but has been unable to find any evidence to support them.
Additionally, though Mr. Lowder seeks housing in the
protective custody unit, inmates in that unit have more
physical freedom and opportunity to interact with other
inmates than those in disciplinary segregation.
Warden explains that he directed Investigator Rodrigues to
investigate the requests for protective custody. On July 12,
2019, she interviewed Mr. Lowder, who told her that he thinks
other inmates are targeting him due to his involvement in a
bar fight with a members of a biker gang fifteen years
earlier. He told her that he claimed to be suicidal so that
he could leave disciplinary housing. He told her that he
believed that his smock had lingering pepper spray on it
until he saw an inmate sprinkling burning chemical powder on
him. He also told her that other inmate employees sprayed him
with chemicals in holes that they had drilled into his cell
wall and that other inmates in the housing unit had yelled
threats of violence at him from their cells. Investigator
Rodriguez couldn't corroborate any of these reports or
find any indication that Mr. Lowder had ever been attacked at
the Indiana State Prison.
Lowder gave Investigator Rodrigues the names or aliases of
those he believed were targeting him. Investigator Rodriguez
couldn't confirm the identity of many of these
individuals and discovered that another individual had been
released. She further discovered that two of the inmates
resided in other housing units but no indication that Mr.
Lowder had previously identified them as threats or that they
had ever harmed him. She also consulted with law enforcement
agencies that specialized in biker gangs and couldn't
verify that any of the named individuals were associated with
August 9, 2019, Investigator Rodrigues told Mr. Lowder about
the results of her investigation. He told her that his
reports might have been inaccurate due to his use of
methamphetamine. Mr. Lowder underwent a urinalysis, which
confirmed that he had obtained and used methamphetamine. On
September 25, another investigator tried to interview Mr.
Lowder, but he refused to cooperate.
Warden also consulted with medical staff during the course of
his investigation. On July 22, 2019, Mr. Lowder told a nurse
that he had used methamphetamine and that he had an irregular
heartbeat, difficulty breathing, and stinging sensations all
over his body. The nurse saw served no signs of skin
irritation, shortness of breath, or heart complications. He
also sought medical attention on other occasions for
methamphetamine use, acid reflux, and hip pain, but did not
complain of skin irritation. In July 2018, Mr. Lowder started
receiving regular treatment from mental health staff, and his
reports to them about his need for protection has
substantially mirrored his reports to Investigator Rodriguez.
He has received a diagnosis of anxiety disorder and
prescriptions for medication.
obtain a motion for a preliminary injunction, Mr. Lowder must
demonstrate a reasonable likelihood of success on the merits.
The Eighth Amendment imposes a duty on prison officials
“to take reasonable measures to guarantee the safety of
inmates.” Farmer v. Brennan, 511 U.S. 825, 832
(1994). “[I]n order to state a section 1983 claim
against prison officials for failure to protect, [a
plaintiff] must establish: (1) that [she] was incarcerated
under conditions posing a substantial risk of serious harm
and (2) that the defendants acted with deliberate
indifference to his health or safety. Santiago v.
Walls, 599 F.3d 749, 756 (7th Cir. 2010). In the context
of failure to protect cases, the Seventh Circuit has equated
“substantial risk” to “risks so great that
they are almost certain to materialize if nothing is
done.” Brown v. Budz, 398 F.3d 904, 911 (7th