the authority to place an inmate in administrative hold in the
Unit I hospital.
Because of the large number of Gangster Disciples and other
gangs at Stateville, it was not always possible to separate an
inmate from all other members of a threatening gang or gangs.
Additionally, Stateville officials only acted on threats they
considered to be sufficiently verified. Also, being
single-celled in disciplinary segregation was not any less
protective than protective custody.
"[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners." Farmer v.
Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994) (quoting Cortes-Quinones v. Jimenez-Nettleship,
842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109
S.Ct. 68, 102 L.Ed.2d 45 (1988)); Luttrell v. Nickel,
129 F.3d 933, 935 (7th Cir. 1997); Lewis v. Richards, 107 F.3d 549, 552
(7th Cir. 1997). "Failure to provide such protection, however,
violates the Eighth Amendment's prohibition of cruel and unusual
punishment only if `deliberate indifference by prison officials
[to the prisoner's welfare] effectively condones the attack by
allowing it to happen[.]'" Lewis, 107 F.3d at 553 (quoting
Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996)). In order to
recover from prison officials, "a plaintiff must show both an
objective risk of danger and actual knowledge of that risk on
the part of the custodial staff." Weiss v. Cooley,
230 F.3d 1027, 1032 (7th Cir. 2000). See also Swofford v. Mandrell,
969 F.2d 547, 549 (7th Cir. 1992). A plaintiff may establish
liability by showing that the defendant was aware of a
substantial risk of serious injury to the prisoner, but
nevertheless failed to take appropriate steps to protect the
prisoner from a known danger. Weiss, 230 F.3d at 1032 (quoting
Payne v. Churchich, 161 F.3d 1030, 1041 (7th Cir. 1998),
cert. denied, 527 U.S. 1004, 119 S.Ct. 2339, 144 L.Ed.2d 236
(1999)). Also, a systemic lapse in enforcement of a policy
critical to ensuring prisoner safety could be sufficient to show
deliberate indifference violating the Eighth Amendment. Steidl
v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (quoting Goka v.
Bobbitt, 862 F.2d 646, 652 (7th Cir. 1988)).
Evidence supports that prisoners in Unit I occasionally broke
away or were left unescorted, but there is no evidence of a
systemic failure to enforce the policy of requiring escorts.
Also, the evidence does not support deliberate indifference to a
failure to stop stingers from being smuggled into Unit I. Cf.
Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). Therefore, it
must be determined whether plaintiff has shown an objective risk
of danger to him in particular and, if so, whether each
particular defendant was aware of that danger. Also, as to each
defendant, it must be shown that that defendant's deficient
performance was a cause of plaintiff being attacked by Felton.
See Babcock v. White, 102 F.3d 267, 271 (7th Cir. 1996);
Robinson v. Detella, 1996 WL 745412 *2 (N.D.Ill. Dec. 24,
1996); Crist v. Waznis, 1995 WL 769272 *1-2 (N.D.Ill.Dec.29,
1995); Adams v. Peters, 1995 WL 699711 *8 (N.D.Ill. Nov. 24,
On the facts presently assumed to be true, on more than one
occasion, McAdory was informed the Gangster Disciples had a hit
out for plaintiff. McAdory was also aware that Felton, a
particularly dangerous Gangster Disciple, was assigned to the
cell next to plaintiff. Felton was not one of the Gangster
Disciples specifically named by plaintiff as making threats, but
plaintiff reported that the entire gang had a hit out for him.
Also, a failure to protect claim does not require that the
plaintiff specifically identify the attacker as a threat prior
to the occurrence of the attack. See Farmer, 511 U.S. at
843-44, 849 n. 10,
114 S.Ct. 1970; Giroux v. Somerset County, 178 F.3d 28, 33
(1st Cir. 1999); Holland v. DeBruyn, 1997 WL 284813 *8
(N.D.Ind. March 6, 1997); Hill v. Godinez, 955 F. Supp. 945,
949 (N.D.Ill. 1997). McAdory was actually aware of the danger
represented by placing plaintiff in an area where each trip out
of his cell could result in his passing in the vicinity of a
particularly dangerous Gangster Disciple who was known to throw
things at passersby. On the evidence presently before the court,
it must be assumed that there were other possible locations
where plaintiff could be kept away from members of the gangs
that had threatened him. But even if it were assumed that no
location could be found that kept plaintiff separated from all
Gangster Disciples and Northsiders and that a single cell in
segregation was as safe as even protective custody, it would not
be exercising due care to place plaintiff near a particularly
dangerous Gangster Disciple.
However, while it may have been negligent to place plaintiff
in 3-G, it does not amount to deliberate indifference on
McAdory's part. Felton was prone to attack guards and prisoners;
there is no evidence he limited himself to attacking (or was
more prone to attack) Gangster Disciple enemies. Others besides
Felton had to be housed in 3-G and plaintiffs own testimony is
that he had previously gotten along with Felton. But even if the
placement near Felton constituted deliberate indifference, the
placement is not the proximate cause of plaintiff being scalded.
Plaintiff could have stayed at sick call instead of wandering on
his own through Unit I. And even after he went to 3-G, he could
have stayed in the 3-G dayroom, which apparently was out of
range of Felton and was devoid of other prisoners. It was
plaintiffs own decision to go to Felton's chuckhole that was the
proximate cause of his injury. McAdory's conduct was not
deliberate indifference nor a proximate cause of plaintiffs
injury; therefore the claim against McAdory will be dismissed.
Since it was plaintiffs own decision to approach Felton's
cell, the conduct of the other three defendants also would not
be a proximate cause of plaintiff being injured. Additionally,
the evidence does not support that the other defendants were
deliberately indifferent. While it may have been negligent for
Ray to fail to immediately call for other guards, Ray did not
instruct plaintiff to leave the dayroom and go near the cells.
Ray was able to observe plaintiff, and given Unit I's escort
policy, plaintiff was unlikely to encounter other prisoners.
Plaintiffs risk of danger was not so high that it could be found
that Ray was deliberately indifferent absent Ray specifically
sending plaintiff to stand outside Felton's cell. Similarly,
Wright only sent plaintiff to 3-G; he did not instruct plaintiff
to go beyond the dayroom. Wright did not send plaintiff to stand
outside Felton's cell. It cannot be inferred that Wright was
deliberately indifferent. The claims against Ray and Wright will
As to Yarbrough, the claim is even weaker. Yarbrough knew of
the danger represented by being near Felton, but there is no
evidence that Yarbrough knew plaintiff was a subject of a
Gangster Disciple or Northsider hit. More importantly, there is
no evidence that Yarbrough knew plaintiff would be released from
the sick call and permitted to return to his cell unescorted. It
is true that Yarbrough permitted plaintiff to go part way to the
sick call unescorted, but plaintiff was not attacked on his way
to the sick call. There is no evidence regarding Yarbrough's
responsibility to retrieve plaintiff from sick call. There is no
evidence that Yarbrough was supposed to stay with plaintiff
during the sick call visit nor any evidence that
Yarbrough was called to pick up plaintiff from sick call. The
only evidence is that Yarbrough was the gallery officer for 3-G
on that day. While that may have made him responsible for
escorting plaintiff back, there is no evidence showing that was
his responsibility nor how he was to be alerted to pick up
plaintiff. Moreover, it would appear Yarbrough was on a lunch
break at the time plaintiff was attacked. It cannot be found
that Yarbrough acted with deliberate indifference to a known
risk or that he was a cause of plaintiff being attacked by
Felton. The claim against Yarbrough will be dismissed.
IT IS THEREFORE ORDERED that defendants' motion to strike
[88-1] is denied without prejudice. Defendants' motion for
summary judgment [76-1] is granted. The Clerk of the Court is
directed to enter judgment in favor of defendants and against
plaintiff dismissing plaintiffs cause of action with prejudice.