511 U.S. at 845 (quoting Helling v. McKinney, 509 U.S. 25, 33, 125 L. Ed. 2d 22, 113 S. Ct. 2475).
In sum, prison officials have a constitutional duty to act reasonably to ensure a safe environment for a prisoner when they are aware that there is a significant risk of serious injury to that prisoner. The failure to do so violates that prisoner's rights, whether or not an attack actually occurs, and if it does occur, whether or not the injuries suffered in an attack are serious. In assessing whether the risk of an inmate's violence against other inmates is "sufficiently serious," Wilson, 501 U.S. at 298, to trigger constitutional protection, the focus of inquiry must be, not the extent of the physical injuries sustained in an attack, but rather the existence of a "substantial risk of serious harm." As the Seventh Circuit observed recently, an inmate may bring a Section 1983 action for damages in the absence of any physical attack if the inmate has suffered "extreme and officially sanctioned psychological harm" from living in fear of attack. Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997).
Drawing on the jurisprudence developed in the context of a deprivation of medical care, defendants contend that the inmate must have suffered a serious physical injury to state an Eighth Amendment claim. In Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), the Supreme Court held that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Id. at 104 (internal citation omitted). Even in the context of the denial of medical treatment to inmates, however, it is well established that prison officials may not be deliberately indifferent to health conditions of prisoners that pose a substantial risk of future, serious medical problems. See, e.g., Helling, 509 U.S. at 34 (prisoner allowed to prove in a suit that exposure to environmental tobacco smoke is an unreasonable danger to his health); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (prisoner allowed to maintain suit For damages for failure to provide him with eye-glasses due to risk of serious injury without them). In Helling, the Supreme Court specifically "rejected the petitioners' central thesis that only deliberate indifference to current serious health problems of inmates is actionable." Helling, 509 U.S. at 34 (emphasis supplied).
In the instant action, Heisler alleges that the defendants failed to intercede to stop an ongoing attack. According to the plaintiff, when he returned to his cell on May 9, 1993, his assailant followed him into his cell within view of the defendants and proceeded to beat the plaintiff. The assailant then left and upon returning attempted to stab the plaintiff. The plaintiff suffered swelling and contusions. According to the plaintiff, it was only fortuitous that he did not suffer far more serious injuries. These allegations are sufficient to raise a question of fact as to whether a "substantial risk of serious harm" existed. As for the subjective component of an Eighth Amendment violation, the defendants do not object to -- and I find no clear error in -- the Report's finding that material issues of fact exist as to whether defendants Acuna, DeGroat and Makara where deliberately indifferent to plaintiff's rights by failing to intervene to stop the attack. Thus, denial of summary judgment is appropriate.
2. Defendant Kralik
According to the defendants, the plaintiff has relied solely on hearsay to establish that they were notified of the danger to Heisler's safety. Heisler reports that Bergen County Sheriff Terhune told Heisler that he had sent a fax to Sheriff Kralik to advise him that Heisler should be placed in a protected environment. Through an affidavit, the plaintiff's mother testifies that prior to the plaintiff's transfer to the RCCC, Ms. Anna Baldino of Sheriff Terhune's office advised her that Sheriff Kralik would be contacted shortly about her son's safety. Heisler's mother further testifies that after the attack, Ms. Baldino expressed shock to her and stated:
We communicated with Sheriff Kralik and asked him to address the need for added safety and security for Richard Heisler. I will call up there immediately to find out what happened.
Heisler also submitted answers to interrogatories from Ms. Baldino which arguably support some of Mrs. Heisler's recollection. Finally, Heisler reports that Detective Toth of the Orangetown Police told him that he would telephone the Rockland County Sheriff's Department to advise it that the plaintiff desired to be placed into protective custody; it appeared to Heisler that Detective Toth made that call in his presence.
The defendants are correct that some of the evidence on which the plaintiff relies is hearsay. Ms. Baldino's answers to the interrogatories and Heisler's observations of the Toth telephone call, however, provide a sufficient basis to find that there are disputed issues of fact here. I note, moreover, that despite the hurdles to conducting litigation pro se, the plaintiff has made specific allegations about the warnings given to the RCCC and presented non-hearsay evidence to substantiate those claims. In these circumstances, I adopt the recommendation that summary judgment on this claim be denied. At trial, Heisler will be permitted to subpoena Detective Toth, Sheriff Kralik, Sheriff Terhune and Ms. Baldino should he desire to do so.
Accepting for purposes of this argument that they received a warning, the defendants argue that the warning did not create a duty since it could only have reflected the plaintiff's own fears or the experience in a Bergen County facility and could not have been a basis for predicting experience in RCCC. This argument entirely misses the point. The danger to Heisler stemmed from the nature of the crime he had committed and the likelihood of how any inmate population would react to knowledge of that crime. There is nothing to suggest that the defendants had a basis to believe that the inmates in RCCC were indifferent to these matters. In any event, these are issues of fact properly decided at trial.
3. Defendant Kardian
As to the claims against defendant Kardian regarding his interference with Heisler's access to showers and recreation and with his ability to clean his cell, the defendant interposes both legal and factual arguments. As to the factual arguments, the defendant chose not to present evidence to Judge Francis in support of this prong of his motion and has thereby waived his right to do so now. Reviewing the legal arguments de novo, and liberally construing plaintiff's pro se complaint, plaintiff's allegations state a claim that the conditions of his confinement amounted to "punishment." See Bell, 441 U.S. at 539. Conditions of confinement violate the Eighth Amendment
when they deprive an inmate of the "minimal civilized measure of life's necessities" evaluated under a "contemporary standard of decency." Rhodes v. Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1980). See Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995). In his complaint, plaintiff alleges that
Officer Kardian denied me everything possible pertaining to minimum standards while I was in protective custody, i.e. showers, legal phone calls, regular phone calls, cell-clean up, outdoor recreation, access to the law library, legal materials and so much more.