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Grieveson v. Anderson

August 18, 2008


Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 02 C 1862-John Daniel Tinder, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.


Before EASTERBROOK, Chief Judge, and KANNE and ROVNER, Circuit Judges.

During Joseph Grieveson's detainment at the Marion County, Indiana, Jail, he allegedly suffered several attacks at the hands of other inmates, and one attack by an unnamed jail guard. He brought suit against numerous government defendants in their individual and official capacities, raising constitutional and state-law claims. The United States District Court for the Southern District of Indiana dismissed some of the claims and granted summary judgment in favor of the defendants for the remaining claims. We affirm the district court's grant of summary judgment in favor of the Marion County Sheriff on the official-capacity claims. However, with respect to the individual-capacity claims against individual defendants, we affirm in part and reverse in part. There is a genuine issue of material fact surrounding whether one jail guard was deliberately indifferent to Grieveson's safety needs, and there is a genuine issue of material fact about whether three jail guards were deliberately indifferent to Grieveson's medical needs. Finally, we reverse the district court's disposition of Grieveson's negligence claims against certain defendants under Indiana law.


We review the district court's entry of summary judgment in favor of the defendants de novo. See Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003). Given this standard of review, we must construe all inferences in favor of the nonmoving party, in this case Grieveson, id., and recount the facts in the light most favorable to him, Steen v. Myers, 486 F.3d 1017, 1019 (7th Cir. 2007).

For about eleven months between May 2000 and January 2002, Grieveson, a Canadian citizen, was a federal pretrial detainee being held at the Marion County Jail on charges of illegal re-entry of a deported alien. During the first six months of his tenure at the jail in Indianapolis, Grieveson shared a four-person cell with Art Schlichter, a former quarterback for the Indianapolis Colts. During that same time period, a federal grand jury in Indianapolis was investigating Schlichter's ongoing involvement in gambling schemes-particularly schemes involving Linda Wagoner, Schlichter's attorney, who was allegedly smuggling items into the jail for Schlichter. One of Grieveson's friends on the outside, Norman Buff, was "involved with the Grand Jury in catching [Wagoner]." Out of concern for Grieveson, Buff had spoken with Sergeant Chris Boomershine on several occasions to request that Grieveson be moved to another location within the jail. Grieveson believed that he was considered a "snitch" within the jail because of his association with Buff.

Grieveson was moved out of Schlichter's cell on November 18, 2000, into a large "barracks-style" area that housed approximately 45 inmates. Shortly thereafter, on November 30, Grieveson was beaten unconscious by another inmate. Grieveson states that throughout the beating, the aggressor called Grieveson a "snitch" and said the beating was a "favor for Schlichter." The next day around noon, Grieveson told Officer Smith that his nose was broken, that he was bleeding down his throat, and that he was in intense pain. Smith responded that she would "let 'Medical' know." Grieveson proceeded that afternoon to tell defendants, Officers Cornell, Duncan, and Highbaugh, of his injuries, but he did not receive any medical assistance. Even Grieveson's sister called the jail to urge them to provide Grieveson with medical care. Then, on December 2, Grieveson complained of his injuries again to Officer Duncan; she had Grieveson fill out a "medical call card."

On December 3, Grieveson was taken to the hospital, where it was confirmed that he had a broken nose. He was prescribed pain medication and advised to meet with a plastic surgeon. When back at the jail, Grieveson requested his prescribed medication, but a jail guard refused to give it to him, saying, "You don't need it. Be a man and stop whining." Eventually, Grieveson was given all of his prescribed pain killers at once. A stronger prisoner took the medication away from him, and as a result, Grieveson was left without medication for a week. Grieveson submitted a timely grievance to jail officials, reporting the delays of Officers Cornell, Duncan, and Highbaugh in obtaining medical help for him after his injuries. The jail's response stated, "it is unfortunant [sic] that it took that long to send you to [W]ishard . . . ." The jail disposed of the grievance as "ujs" (presumably meaning unjustified).

Grieveson suffered a second inmate attack on December 31, 2000. The jail's activity report states that Grieveson said he had "slipp[ed] in puddled water." But Grieveson avows that when he was alone with the officers, he told them he had been assaulted and that he wanted to be moved to a different cell block. At one point after the December 31 assault, Grieveson requested that he receive only one dose of medication at a time-instead of his entire prescription at once. A jail medical record dated January 9, 2001, confirms that Grieveson made a request for intermittent disbursements of his prescription medication.

On or about January 17, 2001, Grieveson suffered a third attack by another inmate. Grieveson alleges that two days passed before he was taken to the hospital-on January 19, 2001-and medical attention came only after his family members made numerous calls to the jail about his injuries. The jail activity records indicate that Grieveson suffered the injuries on January 19. In addition to bruising and bleeding injuries, Grieveson's tooth was broken during this assault, and he had to have it surgically removed. Grieveson reported that he "layed [sic] there with my face beaten in for two (2) days in severe pain and suffering before receiving medical treatment." Grieveson filed a grievance about the third attack, again stating that his medical treatment was unduly delayed. The response from the jail was: "this is an unfortunant [sic] situation but you did go and get your tooth fixed at [W]ishard. [T]he medical office sees a lot of inmates on any given day and sometimes they do miss some." Again, the disposition was "ujs" (unjustified). Grieveson was given his entire prescription of pain medication at one time-only to have it stolen by another inmate.

Grieveson's fourth set of injuries-on January 22, 2001-allegedly came after a jail guard slammed Grieveson's arm in a steel door and threw him repeatedly against the bars in a basement holding cell. Apparently the guard told Grieveson to stop complaining and stop "causing trouble." Grieveson was taken to the hospital, where he was treated for a shoulder injury. He was prescribed pain medication and told that initial treatment included applying cold packs to the injury. At the jail, Grieveson requested ice packs but jail officials told him, "we don't give those out here." The jail guards again gave Grieveson his entire prescription of pain medicine at one time. The medicine was again stolen from Grieveson by another inmate.

In early February 2001, Grieveson was assaulted by another inmate who "pummeled" him in the face because he was snoring. And then in early March, Grieveson was assaulted for the sixth time, after he tried to defend his food and other personal items from other inmates. Grieveson alleges that Officer Highbaugh witnessed the sixth assault, and later told Grieveson "to learn how to fight harder or don't come to jail." On March 6, Grieveson told a jail medical officer that he had been in an "altercation" two days before. He complained of pain in his ribs and arm.

On March 14, 2001, Grieveson filed a grievance with the jail about his assaults in general and his fears. He specifically asked to be moved to a safer block:

As you know I have been beaten and assaulted over 6 times and [through] no fault of mine. I am real scared of my life in here and the guards are even afraid to come into the block[.] How do you think we fell[?] I feel like I am [losing] my mind in here and going to have a breakdown. I ask you to move me to another jail or at the least move me to a safer block.

At the same time, Grieveson's friend, Buff, was also trying to secure Grieveson relocation. In March, Buff spoke with Officer Boomershine in person and explained that he feared for Grieveson's safety and he urged Boomershine to relocate Grieveson.

The seventh attack Grieveson suffered, on March 21, 2001, was by far the worst. A fellow inmate, Robert White, hit Grieveson in the face and slammed his face into a steel table, knocking Grieveson unconscious. Grieveson stated in an affidavit that at the time of the attack, White "was angry over losing in a card game." Once he woke up, Grieveson waited 90 minutes until a guard was within shouting range. He also called his sister to ask her to call for help. Grieveson suffered serious injuries including a broken left eye socket, damage to his optic nerve, and injuries to his ribs, face, jaw, and nose. The attacker was allegedly a former client of Wagoner, Schlichter's attorney. Grieveson first told the jail guards that he slipped in the shower, but when he was out of the earshot of other inmates, he claims he told them he was attacked.

Grieveson saw a plastic surgeon on March 28, 2001, and was told that he needed immediate surgery to correct the damage to his eye. Surgery was scheduled for some point in the next few days, but Grieveson was not told the exact day and time of the surgery. Unfortunately, Grieveson did not have surgery as originally scheduled because on March 30, 2001, he was moved from Marion County Jail to Park County Jail, and then to the Federal Medical Center in Minnesota (FMC). In the process of the moves, Grieveson's medical records were not supplied immediately to the new detention facilities. When the FMC did receive his medical records-approximately 35 days after Grieveson left the Marion County Jail-it was as a result of Grieveson's attorneys' efforts to have them forwarded. According to Grieveson, by the time he saw another doctor about his eye, it was too late to correct the damage.

When Grieveson returned to the Marion County Jail approximately nine months later, he had a prescription for pain medicine. He alleged that he was given, at one time, an entire bottle of 100 pills of Ultram-a prescription, narcotic-like pain reliever. See, Ultram Oral, măȘ¶.aspx?drugid=11276&drugname=UltramăȘ¶ (last visited Aug. 8, 2008). Two inmates stole the pills from Grieveson, slapping his mouth in the process. Grieveson did not put up a fight and questioned why "medical staff and jail guards [would] give an inmate in jail with 45 other inmates . . . about 100 pain pills knowing [the recipient] was in severe pain wearing a patch over [his] left eye and knowing [he] had no way of locking up anything."

Grieveson was convicted and placed in federal prison to serve out his sentence. Grieveson brought suit against various defendants including the Marion County Sheriff; Marion County Jail Commander Patrick Commiskey; Marion County Sergeant Chris Boomershine; Marion County Jail Officers Highbaugh, Cornell, and Duncan; and United States Marshal Frank Anderson, in their official and individual capacities, as well as the City of Indianapolis.*fn2 The action combined state-law negligence and constitutional claims, and federal claims under 42 U.S.C. § 1983 and 28 U.S.C. § 1350 (the Alien Tort Claims Act). The United States District Court for the Southern District of Indiana dismissed some claims and granted summary judgment in favor of the defendants on the remaining claims. This appeal ensued.


On appeal, Grieveson argues that the district court's opinion was fundamentally flawed and that, consequently, we should reverse summary judgment and remand for further proceedings. He also challenges the district court's resolution of his official- and individual-capacity claims, arguing that his Eighth Amendment rights were violated both by the unconstitutional customs and practices of the Marion County Jail, and by the deliberate indifference of jail officers to his safety and medical needs. Finally, ...

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