Civil Rights Attorney in Valparaiso, Indiana


Valparaiso Indiana is subject to Indiana State law. These claims arise in a number of ways. In the first scenario, a person in jail is being harassed, threatened, or fears for the their safety for some reason. The person notifies the jail guards or jail administrative staff, and they do nothing to protect the person. The person is attacked by a fellow inmate and is injured or killed.

In the second scenario, another inmate is clearly a bad actor, and should be placed in a secure unit but the Guard doesn’t really care and improperly assigns the “bad actor” with non-violent offenders. Some folks explain this type of failure to protect claim as the guard placed a lion or wolf with a lamb.

In the third scenario, a jail guard or jail staff sees an inmate being harassed or assaulted and just lets it happen. This person fails to intervene, and because of the failure to act, the inmate is injured or killed.

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What Does the Constitution/law Say About a Failure to Protect Claim?

Generally, jail guards and jail officials have a duty to protect detainees from violence at the hand of other inmates. However, in the Seventh Circuit, which covers Indiana, you also have to show that the Jail Guard knew of the problem, understood the risks, and chose to do nothing. In other words, the Guard knew the inmate was going to be attacked and said “so what” “I don’t give a hoot” “F” it!

Here Is an Idea of How Our Appellate Court Characterizes Failure to Protect Cases:

A typical deliberate indifference claim asserts that a defendant-custodian failed to take protective action after a plaintiff-detainee complained of a feared threat posed by rival gang members or a specific feared person… Another common fact pattern found in our failure to protect cases finds deliberate indifference arising out of improper cell assignments, where the defendant custodian places an unwitting detainee in a cell with another detainee whom the custodian knows to have certain violent propensities… In these types of cases, the victim and assailant are readily identifiable, and the custodian’s deliberate indifference is based upon knowledge of a clearly particularized risk.

Failure to Protect Claim in The Prison System

The Eighth Amendment imposes a duty on prison officials to take reasonable precautions to guarantee the safety of inmates. Prison guards have a duty to protect prisoners from violence at the hands of other prisoners. However, in order to go forward on a failure to protect claim under Section 1938, an inmate has to show: (1) that he/she was incarcerated under conditions posing a substantial risk of serious harm and (2) that the prison officials or guards acted with deliberate indifference to his health or safety. In failure to protect cases a prisoner normally has to prove actual knowledge of impending harm by showing that he or she complained to prison officials about a specific threat to his safety. For instance, the inmate has to specifically identify the threat and ask for protection.

Here is an example of a fact scenario in failure to protect claim that can move forward. An inmate goes to a guard and tells him a couple of times that he is having problems with his cellmate who was a high-ranking gang member. The guards do not investigate the problem or move the inmate. The inmate is then beat up by his cellmate.

Here is another example of a fact scenario in a failure to protect claim that was able to move forward. A prisoner reports that a hit has been placed on his head because he filed a sexual abuse (PREA) claim. The prison officials failed to put him in protective custody and a short time later that snot was beaten out of the inmate.

Failure to Protect/Intervene Claim Against Law Enforcement

An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens can be liable under Section 1983, if that officer had reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.

Said another way, a failure to protect excess form claim arises only if the officers at the scene knew that the law enforcement officer was going to use excessive force and had a realistic opportunity to prevent that excessive

Here is a typical fact scenario. A person has been taken to the ground and handcuffed, law enforcements continues to hit the person and another law enforcement officer just watches as opposed to stopping the offense.

Failure to Protect/Prevent Suicide Claims In Indiana

These claims can arise when an inmate is a known risk of suicide and the Jail or Prison personal failure to put in reasonable safeguards to protect him or her.

Here the family or estate of the inmate must demonstrate that: (1) the harm was objectively, sufficiently serious and a substantial risk to his health or safety; and (2) the individual defendants were deliberately indifferent to that risk. In suicide cases, the first element, a serious harm is met. The issue then becomes whether the prison or jail personnel knew that the inmate was a suicide risk and failed to act reasonably in instituting safeguards to protect the inmate. Again, like all the other failure to protect claims the success of the claim is fact specific and depends on what the prison or jail personnel knew and what they did to prevent suicide.

Guy DiMartino Law Indiana 

Michigan City, IN Office

📍 1000 Washington Street Michigan City, IN 46360

✆ (219) 600-4793


Valparaiso, IN Office

📍 332 W 806 N Valparaiso, IN 46385
✆ (219) 600-4793