The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Klebanowski ("Plaintiff")filed a complaint pursuant to 42 U.S.C. § 1983 alleging that three officials of Cook County government ("Official Defendants") and four individual Cook County Corrections Officers*fn1 ("Individual Defendants" and together with Official Defendants "Defendants") violated his constitutional rights by failing to protect him from physical harm while housed in the Cook County Jail. Defendants have moved for summary judgment on all counts. Because Plaintiff cannot show that any of the Defendants were deliberately indifferent to a significant risk of harm to Plaintiff, Defendants' motion for summary judgment is granted.
The following facts are undisputed. In September 2002, Plaintiff was incarcerated in "Tier BC" of "Division XI" of the Cook County Correctional Center (the "Jail"), awaiting trial. Defendant's Statement of Material Uncontested Facts Pursuant to Rule 56(a)(1) at ¶ 6, 12 (hereafter "Def. 56.1 at ¶ __"). Plaintiff is not a member of a gang; he is a "neutron." Plaintiff's Local Rule 56.1(b)(3)(B) Additional Facts at ¶ 2 (hereafter "Pl. 56.1 at ¶ __"). The Cook County Correctional Center does not have a policy or practice of housing "neutrons" separately from gang members. Pl. 56.1 at ¶ 28.
On September 8, at approximately 1 p.m., three gang members, "Little E," "Count," and "Yo-Yo," approached Plaintiff while he was in the dayroom and no officers were present. Def. 56.1 at ¶¶ 13-14, Pl. 56.1 at ¶ 6. When Plaintiff refused to pay the men, the men pushed Plaintiff into a cell and beat him. Def. 56.1 at ¶¶ 13-14, Pl. 56.1 at ¶ 3. Prior to this incident, Plaintiff had never interacted with the three men. Def. 56.1at ¶ 15. After the incident, a female correctional officer took Plaintiff to dispensary in Division XI, and asked Plaintiff what had happened. Def. 56.1at ¶¶ 16-18. Plaintiff told the correctional officer that he had "slipped in the shower." Id. He repeated this story to personnel in the dispensary, who treated Plaintiff with stitches in his ear. Id., Pl. 56.1 at ¶ 8. When Plaintiff returned to the cellblock in Division XI later that day, he told several unidentified officers that he wanted to move out of Division XI because he was scared. Def. 56.1 at ¶ 19, Pl. 56.1 at ¶¶ 9-10. Plaintiff was not moved out of Division XI on September 8. Def. 56.1 at ¶ 19-20.
On September 9, at approximately 9:45 p.m., the same three men from the September 8 assault approached Plaintiff from behind while Plaintiff was watching television on the top tier, and stabbed Plaintiff in the stomach. Def. 56.1 at ¶¶ 20-21. Plaintiff escaped from the three attackers and pressed the panic button in the tier, but five minutes passed before any corrections officers responded. Pl. 56.1 at ¶ 19. Shortly after the incident, officers conducted a "shakedown" of the tier where the incident occurred, recovering 14 makeshift knives or shanks. Pl. 56.1 at ¶ 30.
Summary judgment is appropriate where there is no genuine issue of material fact, such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial burden, the non-moving party cannot rest on its pleadings, but must use evidentiary tools -depositions, answers to interrogatories, and affidavits that are part of the record - to show specific facts creating that a genuine issue for trial. Id. at 324. A material fact is a fact that is outcome-determinative under the governing law. Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). The court must construe all facts in a light most favorable to the non-moving party, and must view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, a party cannot defeat summary judgment by relying on unsubstantiated facts. See Greer v. Board of Educ. of the City of Chicago, 267 F.3d 723, 729 (7th Cir. 2001).
Because Plaintiff was incarcerated prior to his trial, Plaintiff brings his claim under the Due Process Clause of the Fourteenth Amendment, rather than the prohibition against cruel and unusual punishment embodied in the Eighth Amendment. Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2000). There is little practical difference between the standards under the Eighth and Fourteenth Amendments for failure to protect claims, and § 1983 claims brought under the Fourteenth Amendment are analyzed under the Eighth Amendment test. Brown v. Budz, 398 F.3d 904, 910(7th Cir. 2005); Velez v. Johnson, 395 F.3d 732, 735 (7th Cir. 2005). In order to establish a failure to protect claim, a plaintiff must show the conditions of his detention posed a substantial risk of serious harm, and that prison officials acted with "deliberate indifference" to that risk. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). A showing of "deliberate indifference" requires the official to have known about a "substantial risk of serious injury to the detainee but nevertheless failed to take appropriate steps to protect [the detainee] from a known danger." Frake, 210 F.3d at 781.
Sheahan, Baird, and Troka - Official Defendants Plaintiff brings suit against Official Defendants (Sheahan, Baird and Troka) solely in their official capacities as Sheriff of Cook County, Department of Corrections Director, and Superintendent of Division XI of Cook County Jail, respectively. Official Defendants move for summary judgment because Plaintiff has produced no evidence of a custom or policy, known to the municipalities, that either contributed to the Plaintiff's injury or failed to prevent a substantial risk of injury. Because Plaintiff cannot make the required showing that Officials Defendants permitted a custom or policy to persist in the Cook County Jail, or had notice of substantial risk of harm and failed to devise policies to prevent that harm, the Court grants summary judgment to Official Defendants.
In order to establish the liability of a municipality under § 1983, Plaintiff must show that "deliberate action attributable to the municipality directly caused a deprivation of federal rights." Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2000), quoting Board of County Comm'rs v. Brown, 520 U.S. 397, 415 (1997). Further, because the complaint has been filed against municipal officials in their official capacities, the Plaintiff must be able to show that the municipality, and not just individual employees, "made a deliberate choice among various alternatives and that the injury was caused by the policy." Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002), quoting Frake, 210 F.3d at 781. A unconstitutional "policy" can be 1) an express policy; 2) a widespread practice that is so permanent and well settled as to be a "custom or usage" with force of law; or 3) an allegation that a person with final policy-making authority caused the injury. Id. There also must be "an affirmative link" between the policy and the particular constitutional violation alleged. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
Plaintiff produces no supporting evidence of a practice or policy in the Jail, or supporting evidence of direct involvement by Official Defendants in Plaintiff's injury. Rather, Plaintiff relies on the general allegation stated in his complaint, without support, that the Jail has no "policy" of separating neutrons from gang members. Pl. Resp. at 4-5. Plaintiff alleges that Official Defendants' failure to take the preventative step to separate neutrons and gang members demonstrates deliberate indifference. But Plaintiff has produced no evidence about any incident other than his own, about any person's gang affiliation other than his own, about any knowledge on the part of any official about general gang affiliation in the jail, or about any steps taken or not taken to prevent violence between gang members and non-gang members in the jail.
Even taking all of Plaintiff's deposition testimony as true, Plaintiff's single incident does not show evidence of a policy sufficient to establish liability. City of Oklahoma City, 471 U.S. at 823 ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability . . . unless proof of the incident also includes proof that it was caused by an existing, unconstitutional municipal policy"); Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000) (same). In the end, the only evidence presented by either party in this case is (i) the deposition of Plaintiff concerning the circumstances of his own injury, (ii) the Cook County Jail rules and regulations for detainees, (iii) job descriptions of officers in the Jail, and (iv) statements of Individual Defendants made during an investigation of the circumstances surrounding Plaintiff's particular injury. None of this evidence involves the general ...