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FISHER v. LOVEJOY

September 27, 2004.

DONNIE RAY FISHER, Plaintiff,
v.
OFFICER RICHARD LOVEJOY, Defendant.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

In this civil rights suit brought pursuant to 42 U.S.C. § 1983, Donnie Ray Fisher ("Fisher") has sued Officer Richard Lovejoy ("Officer Lovejoy") in his individual capacity, alleging that Officer Lovejoy violated his rights as secured by the Due Process Clause of the Fourteenth Amendment when he allegedly failed to protect Fisher, a pretrial detainee, from harm received when attacked by other inmates in the Cook County Department of Corrections. Presently before the Court is Officer Lovejoy's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons stated herein, the Court grants his motion.

FACTS*fn1

  Fisher is a former detainee of the Cook County Department of Corrections. (Def.'s LR 56.1(a)(3) ¶ 2.) On December 30, 1999, he was housed along with forty-seven other inmates in living unit CJ of Cook County Department of Correction, Division 11. (Id. ¶¶ 5-6.) Officer Lovejoy was on watch duty in both the CJ and CF living units on that evening, and this "cross-watch" assignment involved walking back and forth between the two units' dayrooms. (Id. ¶¶ 7-8.)

  At approximately 7:15 p.m. on that day, while in the CJ dayroom, Fisher witnessed another inmate removing food from Fisher's cell. (Id. ¶ 9.) He confronted that inmate, at which point a fight broke out between them. (Id. ¶¶ 9-10.) After approximately three minutes, another inmate attacked Fisher with his fists, and a crowd of inmates gathered near the fighting inmates, cheering on Fisher's assailants. (Id. ¶ 11; Pl.'s LR 56.1(b)(3)(A) ¶ 11.)

  Eventually, Fisher was encircled by the crowd of inmates while he fought with or was attacked by two individuals in the center of the circle. (Def.'s LR 56.1(a)(3) ¶ 14; Pl.'s LR 56.1(b)(3)(A) ¶ 14.) He was at some point able to break out of the circle, and he ran toward the dayroom door and saw Officer Lovejoy through the window beyond the door. (Def.'s LR 56.1(a)(3) ¶ 16.) Fisher hit the red button next to the dayroom door, and he claims he called out for help to Officer Lovejoy beyond the door. (Id. ¶ 17; Pl.'s LR 56.1(b)(3)(A) ¶ 18.) While Fisher may have intended to get help, the button he pressed does not set off a general alarm and only registers as "intercom calling" on the pod control officer's computer screen. (Def.'s LR 56.1(a)(3) ¶ 19.) After pushing the red button, Fisher turned around to face his assailants, and was struck in the face with a shank, which is a knife fashioned from available materials by an inmate. (Id. ¶ 22.) After being stabbed, Fisher was kicked in the head and fell to the ground curled up in a protective position while other inmates continued to kick and punch him. (Id. ¶ 23; Pl.'s LR 56.1(b)(3)(A) ¶ 23.) Officer Lovejoy had a clear view of the fight through the window into the CJ dayroom and witnessed inmate Kunta Chatman repeatedly stabbing Fisher with a sharpened instrument. (Pl.'s LR 56.1(b)(3)(B) ¶ 62.) As soon as he saw the altercation, Officer Lovejoy, who was unarmed, called in a "10-10," asking for all available officers to assist him in the CJ unit. (Def.'s LR 56.1(a)(3) ¶¶ 26-27.) The door to the unit had to be unlocked by the pod officer before any guards could enter. (Pl.'s LR 56.1(b)(3)(A) ¶ 29.) Plaintiff argues that according to Sergeant Henry Page, a corrections officer of the rank of Officer Lovejoy would have had the authority to give the order for the pod officer to open the door to the dayroom (Id. ¶ 21.) However, Officer Lovejoy was trained to call for back up assistance when faced with an inmate confrontation that is violent or involves weapons. (Def.'s LR 56.1(a)(3) ¶ 28.)

  By the time two officers arrived to assist Officer Lovejoy, Chatman had ceased stabbing Fisher, but inmates were fighting and throwing objects around the dayroom. (Pl.'s LR 56.1(b)(3)(B) ¶¶ 63, 66.) A steady stream of officers followed the first two, and upon Sergeant Page's command, the pod control officer "popped" open the dayroom door to let Officer Lovejoy and his fellow officers (approximately eighteen to twenty in number) into the dayroom. (Def.'s LR 56.1(a)(3) ¶¶ 32-34; Pl.'s LR 56.1(b)(3)(B) ¶¶ 63, 65.) A correctional officer ordered all of the inmates onto the wall, and other officers directed the inmates in complying with this instruction. (Def.'s LR 56.1(a)(3) ¶¶ 37, 39.)

  Fisher was still lying on the floor as the officers moved the inmates toward the wall. (Id. ¶ 40.) Fisher claims that Officer Lovejoy ordered him to rise and line up on the wall. (Pl.'s LR 56.1(b)(3)(B) ¶ 67.) When Fisher complained of being injured, Officer Lovejoy allegedly told him it was a "direct order." (Id. ¶ 68.) Officer Lovejoy then pulled Fisher off of the floor and pushed him toward the dayroom wall with the other inmates. (Def.'s LR 56.1(a)(3) ¶ 42; Pl.'s LR 56.1(b)(3)(A) ¶ 42.) Fisher complied, placing himself on the wall in an available space between two other inmates, close enough that their forearms were touching. (Def.'s LR 56.1(a)(3) ¶ 43; Pl.'s LR 56.1(b)(3)(B) ¶ 74.) After the inmates had been ordered to the wall, Officer Lovejoy crossed to the other end of the dayroom with a few other officers, and he noticed as he passed that Fisher had some scratch marks and blood on his back. (Pl.'s LR 56.1(b)(3)(B) ¶ 70; Def.'s Resp. Pl.'s LR 56.1(b)(3)(B) ¶ 70.) Near the area of the room where Chatman had stabbed Fisher, Officer Lovejoy noticed a makeshift knife on the floor, which Sergeant Page later collected along with other homemade knives. (Pl.'s LR 56.1(b)(3)(B) ¶ 72; Def.'s Resp. Pl.'s LR 56.1 (b)(3)(B) ¶ 72.)

  While lined up against the wall, Fisher heard the inmate to his right whisper something to the next man to the right, the words of which he could not make out besides the word "bitch," which caused him to turn in the whisperer's direction. (Def.'s LR 56.1(a)(3) ¶ 45; Pl.'s LR 56.1(b)(3)(B) ¶ 75.) Fisher was unsure if the inmate to his right was one of his original assailants, but he then saw the man remove a knife from his waistband (Def.'s LR 56.1 (a)(3) ¶¶ 47-48.) Fisher spun off the wall in an attempt to avoid being stabbed, yelling as he pushed himself backwards to face his attacker, but the inmate's knife wounded him in the chest. (Id. ¶¶ 51-52; Pl.'s LR 56.1 (b)(3)(B) ¶ 76.) Fisher was pushed by his attacker against another inmate and fell onto the floor in a protective posture, at which point the attacker stabbed Fisher in the head. (Def.'s LR 56.1(a)(3) ¶ 54; Pl.'s LR 56.1(b)(3)(B) ¶ 77.) At about the same time, the inmate to whom the attacker had been whispering left the wall and started hitting Fisher with his hand (Pl.'s LR 56.1(b)(3)(B) ¶ 78.) The first attacker stabbed Fisher again, and Fisher felt a "poking" sensation on the middle of his back as he rolled onto his stomach. (Def.'s LR 56.1(a)(3) ¶ 55.) Within two minutes, by Fisher's estimate, four to five officers rushed the inmates attacking Fisher and restrained them. (Id. ¶¶ 55-56; Pl.'s LR 56.1(b)(3)(B) ¶ 80.) Fisher is not aware of where Officer Lovejoy was while he was being attacked by the inmates on the wall, but he did see Officer Lovejoy standing by the door of the dayroom as the attackers were restrained. (Def.'s LR 56.1(a)(3) ¶¶ 50, 58.)

  DISCUSSION

  Pursuant to Rule 56(c) summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether a genuine issue of fact exists, courts do not weigh evidence or judge the credibility of witnesses. Id. at 249. Rather, the Court "must construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party." First Bank & Trust v. Firstar Info. Servs., Corp., 276 F.3d 317, 322 (7th Cir. 2001). Nonetheless, the nonmoving party may not simply rest on the pleadings in response to a motion for summary judgment, but he must demonstrate through specific factual allegations based on evidentiary materials that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 42 U.S.C. § 1983 states that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . ." A plaintiff must establish that: (1) he has been deprived of a federal right by (2) a person acting under color of state law. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).

  The Eighth Amendment, as applied to the various states through the Fourteenth Amendment, requires prison officials to "`take reasonable measures to guarantee the safety of the inmates.'"*fn2 Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). "While prison officials have a duty to protect inmates from violence at the hands of other inmates, not every injury within a prison is an Eighth Amendment violation." Washington v. LaPorte County Sheriff's Dep't, 306 F.3d 515, 517 (7th Cir. 2002) (citing Farmer, 511 U.S. at 828). "Prison officials have violated an inmate's Eight Amendment rights if there was a risk of injury that objectively was `sufficiently serious,' and if the officials showed `deliberate indifference' to that substantial risk." Id. (citations omitted).

  The determination of whether a prison official acted with deliberate indifference involves an objective and subjective component, Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002), and it appears that only the subjective component is challenged in this case.*fn3 To satisfy the subjective prong of the inquiry, "the plaintiff must establish that the relevant official had `a sufficiently culpable state of mind.'" Id. (quoting Farmer, 511 U.S. at 834). Plaintiff must proffer evidence that the prison official was "aware of the facts from which the inference could be drawn that a substantial risk of harm exists, and [that] he . . . also [had] draw[n] the inference." Farmer, 511 U.S. at 837. Fisher may demonstrate Officer Lovejoy's knowledge with either (1) direct evidence that Fisher notified Officer Lovejoy of the risk of harm or (2) circumstantial evidence suggesting that the risk was so plainly obvious that Officer Lovejoy must have known of its existence. See id. at 842 ("[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.").

  The Court emphasizes that the question is not whether the defendant should have known of the substantial risk, but whether the defendant actually knew of a substantial risk to the plaintiff. See id. at 838. "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. In other words, "ordinary negligence by prison officials is not enough to show an Eighth Amendment violation." Washington, 306 F.3d at 518. Even gross negligence will not be sufficient to establish deliberate indifference. Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996). Further, "prison officials who actually knew of a ...


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