United States District Court, N.D. Illinois, Eastern Division
September 21, 2004.
JOHN L. BIRCH, Plaintiff,
JERRY JONES and JAMES PAGE, Defendants.
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, a state prisoner, has brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff
claims that the defendants, officials at the Stateville
Correctional Center, violated his constitutional rights by acting
with deliberate indifference to his safety. More specifically,
the plaintiff alleges that he was placed, over his repeated
protests, in a cell with a dangerous and belligerent inmate and
that his cellmate attacked him. This matter is before the court
for consideration of the parties' cross-motions for summary
judgment. For the reasons stated in this order, judgment must be
granted in favor of the defendants and against the plaintiff
because, under the circumstances of this case, the defendants
cannot be held liable under the Civil Rights Act for the attack.
STANDARD FOR A SUMMARY JUDGMENT MOTION
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Prime Northgate Plaza Ltd.
Partnership v. Lifecare Acquisitions Corp., 985 F. Supp. 815,
817 (N.D. Ill. 1997). In determining whether factual issues
exist, the court must view all the evidence and draw all
reasonable inferences in the light most favorable to the
non-moving party. Walker v. Northeast Regional Commuter Railroad
Corp., 225 F.3d 895, 897 (7th Cir. 2000).
However, Rule 56(c) "mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322. "Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no `genuine issue for trial.'"
Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 393
(7th Cir. 1997), cert. denied, 523 U.S. 1118 (1998). A
"metaphysical doubt" will not suffice. Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Disputed facts are material only if they might affect the outcome
of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08
(7th Cir. 1992).
The plaintiff is a state prisoner, confined at the Stateville
Correctional Center at all times relevant to this action.
(Complaint, p. 2.) The defendant Jerry Jones, currently retired,
was the placement office supervisor at Stateville at the time of
the events giving rise to this lawsuit. (Id., p. 1; Defendants'
Exhibit C, Affidavit of Jerry Jones, ¶ 1.) The defendant James
Page, likewise now retired, was Stateville's warden at the time
of the events giving rise to this lawsuit. (Defendants' Exhibit
B, Affidavit of James Page, ¶ 1.) The following facts are uncontested for purposes of this
motion: In October 1998, the plaintiff was transferred from a
medium security facility to the Stateville Correctional Center
after he was cited (wrongfully, he claims) for a staff assault.
(Defendants' Exhibit A, Deposition of John L. Birch, at pp.
9-10.) Presumably following his release from segregation,
somewhere between October 20 and October 25, 1998, the plaintiff
was placed in a cell with inmate Cornell Ivy. (Id., pp. 29-30.)
The plaintiff had not named inmate Ivy as an enemy on the
IDOC's "Keep-Separate-From" [also known as "Enemies"] List.
(Id., pp. 25-26.) The plaintiff did not file a regular or
emergency grievance immediately upon being placed with Ivy.
(Id., pp. 24-25.) The plaintiff did not speak directly to
either of the named defendants about any problems with Ivy.
(Id., pp. 18, 23-25, 27-28, 33-34 and 41; see also Page
Affidavit, ¶ 12; Jones Affidavit, ¶ 8.) The plaintiff never
requested placement in protective custody either before or after
the altercation. (Plaintiff's Deposition, pp. 45-46.) Neither
Page nor Jones was aware that the plaintiff feared for his safety
at the hands of inmate Ivy. (Page Affidavit, ¶ 15; Jones
Affidavit, ¶ 8.) No staff contacted Jones regarding fears about
the plaintiff's physical safety prior to the incident. (Jones
Affidavit, ¶ 11.)
Jones was not in the chain-of-command for inmate grievances.
(Jones Affidavit, ¶ 7.) Jones never received any correspondence,
grievance, or other notification from the plaintiff that he had
concerns about his cell placement. (Id., ¶ 8.) Had Jones
received a grievance from the plaintiff, he would have forwarded
it to the plaintiff's counselor for investigation. (¶ 9.)
When deciding where to house an inmate, the placement officer
reviews such information as the inmate's gang affiliation, his
aggression level, his "predator" or "vulnerable" status, and the
"keep separate from" [or enemies] list. (Jones Affidavit, ¶ 2.)
Stateville is a maximum security facility, housing mostly inmates convicted of Class X,
Class 1 and Class 2 felonies. (Id.) During the relevant time
period, the plaintiff was classified as a high aggression level
inmate, with an aggression score as high or higher than inmate
Ivy's. (Id., ¶ 10; Defendants' Exhibit E, IDOC Internal
Classification Form.) The aggression level is based on such
factors as the nature of the offense for which the inmate has
been convicted, his disciplinary and adjustment history, and his
security classification. (Id.) Contrary to the plaintiff's
belief, lieutenants, captains and building superintendents do, in
fact, have the power to authorize cell changes. (Page Affidavit,
The plaintiff says that a Sergeant Greenfield witnessed inmate
Ivy acting "in a dangerous and belligerent" manner toward the
plaintiff one day. (Plaintiff's deposition, pp. 22-23.) The
plaintiff told Greenfield that the two inmates were not getting
along and that Ivy had specifically threatened "to [expletive
deleted] me up." (Id., p. 29.) Greenfield allegedly told the
plaintiff that he had contacted the placement office but that
Jones had declined to authorize a cell change, announcing that
"the only cell changes that he would make would be to
disciplinary segregation." (Id., p. 23.) The plaintiff also
claims that he spoke to his counselor, as well as an unidentified
lieutenant, about problems with Ivy. (Id., pp. 27, 30.) [The
plaintiff explains that he did not know who his building
superintendent was and never saw him, see Plaintiff's
Deposition at p. 53, and that in any case he would have feared
for his safety had he contacted the superintendent. Id.]
On or about November 1, 1999, the plaintiff filed a grievance
concerning his placement with Ivy. (Id., p. 24; Defendants'
Exhibit D, Grievance dated November 2, 2004). The grievance
stated, "This inmate states he is white and keeps getting celly's
(sic) that (sic) are Islam, Muslim and or Racists. Cells without an option for a cell change and a
chance to be secure in my person and property. Policy of not
allowing a person a cell change without making trouble for
himself are wrong." (Exhibit D.) In the relief section, the
plaintiff requested, "A cell change into a cell where I can sleep
without one eye open, or another celly." (Id.)
The counselor's November 3, 1999, response stated: "Cell
assignments are made by the placement officer on a
non-discriminatory basis." (Id.) On November 18, 1999, the
defendant Page [or a designated subordinate] signed off as
concurring with the counselor's response. (Id., p. 2; Page,
Affidavit, ¶ 11.)
In the meantime, on November 2, 1999, the plaintiff and Ivy had
a physical altercation. (Defendants' Exhibit G, Incident
Reports.) When inmate Ivy at first refused to heed correctional
officers' orders to stop fighting and the fight continued to
escalate, one of the officers fired a warning shot, thereby
quelling the situation. (Id.) The plaintiff sustained a broken
nose, facial injuries, and lost a tooth or teeth.
(Id.)*fn1 Ivy had neck and chest injuries. (Id.) The
fight lasted "a couple of minutes" before the inmates were
separated. (Plaintiff's Deposition, p. 39.) Both inmates received
medical attention. (Id., pp. 43-45.)
For the following reasons, no material facts are in dispute,
and the court concludes that the defendants are entitled to
judgment as a matter of law because: (1) even viewing the record
in the light most favorable to the plaintiff, no reasonable person
could find that the defendants acted with deliberate indifference
to the plaintiff's safety; and (2) the named defendants in this
case cannot be held liable under 42 U.S.C. § 1983 for the
It is well established that the Eighth Amendment requires
correctional officers to take reasonable steps to protect inmates
from assault. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.
1988). "When a correctional officer intentionally exposes a
prisoner to a known risk of violence at the hands of another
prisoner, he breaches the duty imposed upon him . . . and thus
subjects himself to suit under 42 U.S.C. § 1983." Id. at
649-650 (emphasis in original).
However, only deliberate indifference [that is, failure to take
reasonable measures in the face of a substantial risk of serious
harm] violates the Constitution. Farmer v. Brennan,
511 U.S. 825, 827 (1994); Riccardo v. Rausch, 375 F.3d 521, 525 (7th
Cir. 2004). In this context, "deliberate indifference" means
"subjective awareness." Riccardo at 526. The Eighth Amendment
"does not demand that guards perform this task flawlessly." Id.
at 525. "All that can be expected is that guards act responsibly
under the circumstances that confront them." Id., citing McGill
v. Duckworth, 944 F.2d 344 (7th Cir. 1991).
It is not enough that a prison official ought to have
recognized the risk. Riccardo, 375 F.3d at 526. "Lack of due
care" will not subject prison officials to damages. Davidson v.
Cannon, 474 U.S. 344 (1986). Any act with a state of mind less
than intent or criminal recklessness, such as negligence or gross
negligence, does not amount to cruel and unusual punishment.
Salazar v. City of Chicago, 940 F.2d 233, 238-39 (7th Cir.
1991); see also Tesch v. County of Green Lake, 157 F.3d 465,
474 (7th Cir. 1998). The relevant inquiry is whether
correctional officials actually knew about the danger that the
plaintiff faced, not whether a reasonable person should have known. Qian v. Kautz,
168 F.3d 949, 955 (7th Cir. 1999). Smith-Bey v. Hospital Adm'r,
841 F.2d 751, 758 (7th Cir. 1988).
Knowledge of impending harm is proved in one of two ways: (1)
by showing the prisoner complained to prison officials about a
specific threat to his safety; or (2) by showing the existence of
a risk so substantial or pervasive that the defendant's knowledge
of the risk can be inferred. James v. Milwaukee County,
956 F.2d 696, 699-700 (7th Cir.), cert. denied, 506 U.S. 818
(1992); Goka v. Bobbitt, supra, 862 F.2d at 650. Here, the
plaintiff has not satisfied either criterion with respect to
In the case at bar, the court finds no basis for liability, as
the record does not support an inference of deliberate
indifference. There is no evidence whatsoever that the named
defendants were on notice at any time prior to the altercation
that Ivy posed a significant threat of harm to the plaintiff.
There is no dispute that the plaintiff was pre-screened prior to
being placed with Ivy; it is likewise uncontested that Ivy was
not a declared enemy or on the plaintiff's Keep-Separate-From
list. The plaintiff neither spoke nor wrote to either defendant
about problems with Ivy. He did not, in the first two weeks or
so, file a normal or emergency grievance.
Even after the plaintiff and Ivy began experiencing conflict,
the plaintiff did not apprise the defendants that his safety had
been threatened. The plaintiff neither spoke directly to either
defendant nor corresponded with them in the two weeks prior to
It is true that the plaintiff contends that a Sergeant
Greenfield witnessed problems between the two prisoners and told
the plaintiff that he had contacted Jones, who declared that the
only cell change would be a move to segregation. However, the
plaintiff's double hearsay is inadmissible as evidence, see Fed.R. Evid. Rule 802, and
insufficient to defeat Jones' affidavit in which he states under
oath that neither the plaintiff nor any security staff contacted
him about issues with Ivy. See Jones Affidavit, ¶ 11. The
unreliability of the plaintiff's declaration is further weakened
by the fact that it misstates actual IDOC policy: according to
both Jones and Page, lieutenants, captains and building
superintendents and not just the placement officer-can
authorize inmate moves between cells.
In addition, the plaintiff's grievance, filed at least ten days
after his placement with Ivy, on either the date of the
altercation or the day prior, failed to indicate that his safety
had been threatened in any way. The plaintiff merely complained
that he was white and kept getting assigned "Islam, Muslim and or
Racist" cellmates. See Defendants' Exhibit D. Although the
plaintiff requested placement in a cell "where I can sleep
without one eye open," id., the vague allusion to potential
discord did not express any specific threat, nor any genuine
basis for concerns about his safety. Rather, the grievance seemed
to reflect the plaintiff's prejudices and preferences. "A
prisoner normally proves actual knowledge of impending harm by
showing that he complained to prison officials about a specific
threat to his safety." McGill v. Duckworth, 944 F.2d 344, 349
(7th Cir. 1991). It is most regrettable if the plaintiff was
too afraid of reprisal to vocalize his concerns about Ivy in a
more concrete manner. However, his failure to alert authorities
resolves them of liability.
In short, nothing in the record supports a finding that the
named defendants had actual knowledge that inmate Ivy posed a
substantial risk of serious harm to the plaintiff. No reasonable
juror could, therefore, find on the basis of the evidence before
the court that either Page or Jones ignored a specific threat to
the plaintiff's safety at the hands of Ivy. Substantial Risk of Harm in General
The plaintiff has likewise failed to establish that violence at
the Stateville Correctional Center is overall so rampant that the
defendants are liable for a pattern of neglect. The record does
not support an inference that the plaintiff was exposed to such a
substantial or pervasive a risk of harm that the defendants'
knowledge of the risk can be inferred.
The plaintiff's unsupported declarations to the contrary, there
is no genuine dispute as to whether Stateville pre-screens
inmates before housing them together. According to the defendant
Jones, when deciding where to assign an inmate, the placement
officer reviews such information as the inmate's gang
affiliation, his aggression level, his status as a "predator" or
a victim, and the "keep separate from" [or enemies] list.
Institutional Directive 05.05.125K3 (Defendants' Exhibit F)
reflects the formal security classification system that is in
place at Stateville. During the relevant time period, the
plaintiff was classified as a high aggression level inmate, with
an aggression score as high or higher than inmate Ivy's. The
plaintiff offers no support other than rumor, hearsay and belief
that inmates have to engage in a physical altercation resulting
in "bloodshed" before they are separated.*fn2
The Eighth Amendment requires only that correctional officials
not place inmates in harm's way "gratuitously." Riccardo v.
Rausch, 375 F.3d 521, 525 (7thCir. 2004).
The qualification "gratuitously" is important,
because prisons are dangerous places. Inmates get
there by violent acts, and many prisoners have a
propensity to commit more. Guards cannot turn away
persons committed by the courts; nor do individual
guards have any control over crowding and other
systemic circumstances. All that can be expected is that
guards act responsibly under the circumstances that
Id., citing McGill v. Duckworth, 944 F.2d 344
Stateville is a maximum security correctional facility, housing
mostly inmates convicted of serious felonies. Unfortunately, a
maximum security prison is a violent and explosive environment.
Hibma v. Odegaard, 769 F.2d 1147, 1159 (7th Cir. 1985).
Correctional officials cannot be expected to eliminate the
possibility of all attacks. Id. While the assault is most
regrettable, the defendants cannot be held liable either for
holding a dangerous inmate (that's what prisons are for), or for
preventing a sudden and unexpected altercation. Under the
circumstances described here, the defendants cannot be held
accountable for the random, unanticipated attack by an inmate not
known to be an enemy of the plaintiff.
The court also notes that it is conceivable that the plaintiff
may, at one time, have had a cause of action against his
counselor, Sergeant Greenfield, the unidentified lieutenant, and
anyone else who was personally aware of mounting friction between
the plaintiff and his cellmate but who took no action. However,
as the court previously advised the plaintiff, it is now too late
to sue those individuals. See Minute Order of September 10,
2002; Memorandum Opinion and Order entered May 20, 2003. Because
the plaintiff waited until just days before the statute of
limitation expired to bring suit, any cause of action against
other correctional officers is now time-barred because in this
circuit, a plaintiff cannot invoke the relation back principles
of Rule 15(c) to bring in new defendants after the statute of
limitations has expired. See Worthington v. Wilson,
8 F.3d 1253, 1256-57 (7th Cir. 1993); see also Wood v. Worachek,
618 F.2d 1225, 1230 (7th Cir. 1980). The plaintiff's
contention that he named the wrong defendants due to
"misrepresentation or concealment" is without merit. The
plaintiff knew when he filed suit the identities of those who witnessed his conflicts with Ivy
and those to whom he directly complained.
Moreover, even assuming that Greenfield and others acted with
deliberate indifference (a matter that the court expressly
declines to address), their alleged actions cannot be ascribed to
the named defendants. "Section 1983 creates a cause of action
based on personal liability and predicated upon fault; thus,
liability does not attach unless the individual defendant caused
or participated in a constitutional deprivation." Vance v.
Washington, 97 F.3d 987, 991 (7th Cir. 1996). The mere fact
that Page was Stateville's warden and Jones its placement officer
is insufficient to establish liability, as the doctrine of
respondeat superior (blanket supervisory liability) does not
apply to actions filed under 42 U.S.C. § 1983. See Pacelli v.
DeVito, 972 F.2d 871, 877(7th Cir. 1992). Section 1983 does
not create collective or vicarious responsibility. Id. To be
held liable under 42 U.S.C. § 1983, a supervisor "must know about
the conduct and facilitate it, approve it, condone it, or turn a
blind eye. . . ." Gentry, 65 F.3d at 561 (citations omitted).
As discussed supra, the plaintiff's grievance did not alert
authorities that he was in any danger. Thus, the named defendants
cannot be held liable under § 1983.
A word is nevertheless in order regarding the warden's
assertion that he cannot be held accountable for denying the
grievance because a subordinate signed off in his name. The
defendant Page, as warden, had the responsibility for reviewing
inmate grievances. While he may delegate this responsibility to
others who sign his name for him, the buck still stops at the
warden. See, e.g., Goodman v. Carter, No. 00 C 0948, 2001 WL
755137, at *5 (N.D. Ill. Jul. 2, 2001) (Lindberg, J.) (The warden
"may delegate his duty to review inmate grievances. Nevertheless,
he may not play a `shell game' delegating responsibility without
disclosing to whom it was delegated [and then deny] personal responsibility
when a prisoner seeks to hold him accountable.") By delegating
the task to others, the defendant Page effectively consented,
approved and, in effect, turned a "blind eye" to how those
grievances were handled. See Powell v. Godinez, No. 93 C 3469,
1997 WL 603927, at *5 (N.D. Ill. Sep. 24, 1997) (Manning, J.)
("[i]f the warden simply has a policy of not reading complaints
from prisoners, it could be considered intentional ignorance,
which can carry the same consequences as actual knowledge").
Those signing the warden's name effectively act as his agent and
their actions are accordingly attributable to him. Because the
grievance raised no concerns of a serious risk of substantial
harm and reached the warden's office after the assault had
already taken place, Page's arguments regarding delegation are
irrelevant. The court, nevertheless, is troubled that counsel
continues to make this argument despite repeated court rulings
rejecting this position.
In sum, there is no genuine dispute as to any
outcome-dispositive fact, and the defendants have established
that they are entitled to judgment as a matter of law. Even
viewing the record in the light most favorable to the plaintiff,
no reasonable jury could find that either of the named defendants
acted with deliberate indifference to the plaintiff's safety. The
evidence fails to support a conclusion that the defendants were
aware of and disregarded a specific, substantial risk of serious
harm to the plaintiff; moreover, the evidence fails to
demonstrate that there was, in general, no system in place to
protect inmates from other aggressive inmates. The plaintiff has
failed to adduce any admissible evidence to support his claim
that the Stateville administration turned a blind eye to
inmate-on-inmate violence. This is a final, appealable order. If the plaintiff wishes to
appeal this order granting summary judgment in favor of the
defendants, he may file a notice of appeal with this court within
thirty days of the entry of judgment. Fed.R. App. P. 4(a)(4). A
motion for leave to appeal in forma pauperis should set forth
the issues the plaintiff plans to present on appeal. See
Fed.R. App. P. 24(a)(1)(C); Hyche v. Christensen, 170 F.3d 769, 771
(7th Cir. 1999). If the plaintiff does choose to appeal, he
will be liable for the $255 appellate filing fee irrespective of
the outcome of the appeal. Evans v. Illinois Dept. of
Corrections, 150 F.3d 810, 812 (7th Cir. 1998). Furthermore,
if the appeal is found to be non-meritorious, the plaintiff may
also accumulate a "strike" under 28 U.S.C. § 1915(g). The
plaintiff is warned that if a prisoner has had a total of three
federal cases or appeals dismissed as frivolous, malicious, or
failing to state a claim, he may not file suit in federal court
without prepaying the filing fee unless he is in imminent danger
of serious physical injury. Id.
IT IS THEREFORE ORDERED, for the reasons set forth in the
preceding paragraphs, that the plaintiff's motions for summary
judgment [docket nos. 61 and 66] are denied.
IT IS FURTHER ORDERED that the defendants' motion for summary
judgment [docket #68] is granted. The clerk is directed to enter
judgment in favor of the defendants Page and Jones and against
the plaintiff pursuant to Fed.R. Civ. P. 56. The case is