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April 16, 2004.

Sherriff Michael F. Sheahan, Director Callie Baird, Supt. James Mcguire, officer Rodriguez Defendants

The opinion of the court was delivered by: MARK FILIP, District Judge


Plaintiff, Ronnie Jamison, has sued pursuant to 42 U.S.C. § 1983 in connection with an alleged prisoner-on-prisoner assault that he suffered while he was in the custody of the Cook County Department of Corrections. Plaintiff also has moved for leave to proceed in forma pauperis. Plaintiff's motion for leave to proceed in forma pauperis is granted. Plaintiff's suit is dismissed for failure to state a claim upon which relief may be granted.

I. Plaintiff's Motion To Proceed In Forma Pauperis Is Granted

  Plaintiff, an inmate at the Cook County Department of Corrections, brings this pro se complaint pursuant to 42 U.S.C. § 1983. The court finds that Plaintiff is unable to prepay the filing fee. The court grants Plaintiff's motion for leave to proceed in forma pauperis and assesses an initial partial filing fee of $8.22 pursuant to 28 U.S.C. § 1915(b)(1), The trust officer at Plaintiff's current place of incarceration is directed to collect, when funds exist, the partial filing fee from Plaintiff's trust fund account and pay it directly to the clerk of court. Thereafter, the trust fund officer at the correctional facility where Plaintiff is held is directed to collect monthly payments from Plaintiff's trust fund account in the amount of 20% of the preceding month's income credited to the account. Monthly payments collected from Plaintiff's trust fund account shall be forwarded to the clerk of court each time the account balance exceeds $10.00 until the full $150.00 filing fee is paid. Separate deductions and payments shall be made with respect to each action or appeal filed by Plaintiff. AH payments shall be sent to the Clerk, United States District Court, 219 S, Dearborn St., Chicago, IL 60604, Attention; Fiscal Department, and shall clearly identify Plaintiff's name and the case number assigned to this action. The clerk shall send a copy of this order to Elizabeth Hudson, Supervisor of Inmate Trust Fund Accounts, Cook County Department of Corrections Administrative Office, Division V, 2700 S. California, Chicago, IL 60608.

II. Plaintiff's Section 1983 Complaint Is Dismissed For Failure To State A Claim
  Plaintiff's complaint is dismissed as against all Defendants for failure to state a claim upon which relief can be granted. In addition, Plaintiff's claims against Defendants "Sherriff [sic] Michael F. Sheahan," "Director Callie Baird," and "Supt. James Mcguire" are dismissed for the alternative and independent reason that Plaintiff has not sufficiently alleged that these supervisory personnel could be liable in their respective individual capacities under g 1983.
A. Plaintiff Has Failed To Allege A Cognizable Constitutional Violation In This Case By Defendants In Connection With Plaintiff's Attack By Another Prisoner
1. Factual Background As Alleged
  On November 22, 2003, Plaintiff was standing at the door of his cell singing through the upper facial opening. One of his cellmates struck him twice in the back of his head, knocking him unconscious. When Plaintiff regained consciousness, the detainee who had struck him was standing over him yelling obscenities and threatening more harm.

  Plaintiff asked his cellmates to get the assigned officer but they refused, Plaintiff began to yell for Officer Rodriguez but his cellmates threatened Plaintiff and told him to be quiet. After seeing that Plaintiff had lost a lot of blood, the cellmates began to call for Officer Rodriguez, who arrived five minutes later.

  Plaintiff told Rodriguez that he needed a paramedic but Officer Rodriguez insisted that Plaintiff walk to the control tower, Plaintiff fainted. When Plaintiff regained consciousness, he repeatedly told Rodriguez that he was dizzy, but Rodriguez did not call for a paramedic and instead told Plaintiff to walk to the elevator, Plaintiff fainted again and regained consciousness on a motor cart arriving in the emergency unit. Plaintiff was treated for a concussion and deep lacerations to his eyelid, eyebrow, and cheek.

  On his return to the jail, Plaintiff was placed in a holding cell. When he yelled for assistance because of headaches and dizziness, an unknown person responded, "You'll be alright, shut up." Plaintiff was transferred to the medical deck and given pain medication,

  Plaintiff alleges that supervisory personnel were negligent in failing to ensure his safety and that Officer Rodriguez did not follow protocol in seeking medical attention for him. He seeks money damages.

  2. Analysis

  Because Plaintiff was a pretrial detainee at the time of the events in question, "his § 1983 claim is analyzed under the Fourteenth Amendment's Due Process Clause rather than under the Eighth Amendment's Cruel and Unusual Punishment Clause." Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002), However, that distinction is without a difference for this type of claim because precedent teaches that "§ 1983 claims brought under the Fourteenth Amendment are to be analyzed under the Eighth Amendment test." Henderson v. Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999); see also Butera, 285 F.3d at 605 n.2.

  "`[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.'" Lewis v, Richards, 107 F.3d 549, 552-53 (7th Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)); Langston v. Peters, 100 F.3d 1235, 1237 (7th Cir. 1996). 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[,]" Haley v. Gross, 86 F.3d 630, 640 (7th Cir. 1996). Thus, to sustain an Eighth Amendment claim, an inmate must establish that the defendants had "actual knowledge of an impending harm easily preventable, so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant's failure to prevent it." McGill v, Duckworth, 944 F.2d 344, 348 (7th Cir. 1991). "It is not enough that a reasonable prison official would or should have known that the prisoner was at risk: the official must actually know of and disregard the risk to incur culpability," Lewis, 107 F.3d at 553 (citing Farmer, 511 U.S. at 837-38).

  In a failure-to-protect case such as this, the plaintiff must plead facts tending to show that jail official(s) were aware of a specific, impending, and substantial threat to his safety. See Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996); McGill, 944 F.2d at 348. There is no indication or allegation in this complaint that any official at Cook County Jail was on notice that Plaintiff was in danger of being attacked by his cellmate. Although it was not ideal that it took Officer Rodriguez five minutes to get to the cell and that Officer Rodriguez chose to have Plaintiff walk instead of calling a paramedic, "[m]ere negligence or even gross negligence does not constitute deliberate indifference." Snipes v. DeTella, 95 ...

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