Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 97 C 2014--Larry J. McKinney, Chief Judge.
Before Manion, Kanne, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Kanne, Circuit Judge
After plaintiff Ronald Butera was sexually assaulted by two other detainees in his cellblock, he sued Jack Cottey, the Sheriff of Marion County, under 42 U.S.C. sec. 1983, alleging that the Sheriff deprived him of due process under the Fourteenth Amendment. The district court granted summary judgment in favor of the Sheriff. We affirm.
After being arrested for robbery and assault in December 1996, Butera was detained in cellblock 2-I of the Marion County Jail ("Jail"). The parties stipulated that on January 6, 1997, detainees Brian Mitchell and James Eskridge sexually assaulted Butera in cellblock 2-I. Butera testified at his deposition that for several days before the assault, Mitchell and Eskridge had verbally threatened him. Further, he stated that on one occasion prior to January 6, Mitchell pulled down Butera's pants in front of other detainees, slapped Butera's buttocks, and exclaimed that Butera was going to be Mitchell's "bitch." Butera testified that early in the morning of January 6, he awoke to find a towel wrapped around his face and his arms and legs being pinned down. He testified that Mitchell and Eskridge punched him several times and that Mitchell then inserted his penis into Butera's rectum. Butera stated that the assault lasted about ten minutes and that he could not scream out for help because of the towel that was wrapped around his face.
Butera testified that he had a conversation with some correctional officers approximately one week before the assault, during which he indicated that he was "having problems in the block" and needed to be removed from cellblock 2-I.*fn1 In addition, Butera's mother Rena signed an affidavit averring that shortly before the assault, she spoke with a Jail employee over the telephone and told him that some detainees in cellblock 2-I had threatened to sexually assault Butera. Her affidavit did not identify the employee with whom she had spoken.
On the evening of January 6, Butera phoned his mother and told her about the assault. Rena, in turn, informed Jail personnel that Butera had been assaulted, and the Jail immediately transferred Butera out of cellblock 2-I. After being moved to a different cellblock, Butera was threatened by another detainee who was Mitchell's cousin. Butera reported this threat to Jail personnel and told them who had threatened him and what the specific threat was. Immediately thereafter, the Jail transferred him to yet another cellblock, where he remained until January 21, 1997.
Sheriff Cottey and his staff devised several policies for the protection of detainees that were in place at the time of Butera's assault. First, he instituted a classification scheme under which the Jail housed detainees. The Jail not only classified and assigned detainees by sex and age, but also by behavior. With respect to behavior, the Jail separated detainees with a history of violence from others. Cellblock 2-I housed males who had been arrested for violent crimes. The Jail also isolated detainees who exhibited extremely violent behavior and restricted their activities.
Jail policy also required correctional officers to make "clock rounds" through each cellblock at least once per hour in order to ensure detainee safety and prevent violence. During the clock rounds, the correctional officers approached the respective cellblock, spoke to the detainees, and determined whether any of them needed assistance. The policy provided that if a detainee informed Jail personnel that he was having a problem with another detainee and identified that detainee, one of the two detainees would be transferred to another cellblock.
In addition, "call cards" were available in every cellblock. Detainees could write a note to a correctional officer on a call card to request protection or identify a specific problem that they were having. Correctional officers picked up call cards every time that they were in a cellblock. In addition to their hourly rounds, correctional officers monitored each cellblock three times a day to distribute meals and pick up trays and utensils afterwards. At those times, detainees could approach the officers to request protection or report problems, or could place a call card on his meal tray for the correctional officer to pick up. Detainees were also able to leave their cellblocks every day for attorney visits, court dates, sick calls, or to attend Jail church services or school classes. During these times, correctional officers were present to respond to detainee requests or problems.
After his assault, Butera brought suit in the Southern District of Indiana, claiming that the Sheriff, knowing about an imminent and serious risk of harm to him, maintained detainee housing and protection policies that were inadequate. The district court granted summary judgment in favor of the Sheriff, holding that Butera ...