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Klebanowski v. Sheahan

September 2, 2008

ROBERT KLEBANOWSKI, PLAINTIFF-APPELLANT,
v.
MICHAEL F. SHEAHAN, SHERIFF, CALLIE BAIRD, HENRY TROKA, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 5878-Virginia M. Kendall, Judge.

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

ARGUED DECEMBER 7, 2007

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

While being held as a pre-trial detainee in the Cook County Jail on a murder charge, Robert Klebanowski suffered two attacks at the hands of his fellow prisoners. Klebanowski claims that his attackers were gang members. Asserting that prison officials were deliberately indifferent to the risks caused by housing an armed gang population with non-gang members and periodically leaving them unsupervised, Klebanowski filed suit pursuant to 42 U.S.C. § 1983 alleging a violation of his Fourteenth Amendment rights. The district court concluded that there was no evidence showing that any of the defendants was deliberately indifferent to a known risk of substantial harm to Klebanowski, and granted the defendants' motion for summary judgment disposing of the case. Klebanowski appeals, asserting that there exist genuine issues of material fact regarding the risk he was subject to, and the policies and conduct of the defendants in the face of that risk. We affirm.

I.

Robert Klebanowski was arrested on February 7, 2002, and charged with armed robbery and felony murder. People v. Klebanowski, 852 N.E. 2d 813, 815 (Ill. 2006).*fn1 While awaiting trial, Klebanowski was held at Division 11 of the Cook County Jail. Division 11 is a maximum security facility, and Klebanowski was held on the Division's BC tier, which housed accused murderers and had a high concentration of gang members. Klebanowski denies ever having been affiliated with a gang. On September 8, 2002, while in the day room with the rest of the inmates on the tier, Klebanowski was approached by three gang member inmates known as Little E, Count, and Yo-Yo. They told Klebanowski they wanted a monthly payment of twenty dollars from him in return for their protection. When Klebanowski refused their offer, they pushed him into an open cell and began to beat him. Following the beating, Little E, Count, and Yo-Yo told Klebanowski that they would beat him again whenever he refused to pay them. They also told him they would kill him if he said anything to the guards.

Following the attack, Klebanowski waited in his cell for an officer to secure the inmates at the close of the recreation period. While the exact nature of Klebanowski's injuries is not set forth in the record, they were serious enough for the officer who came to close his cell to ask what happened to him. Fearing for his safety, Klebanowski told her he slipped in the shower. Klebanowski's condition caused the officer to doubt his explanation, but she said she would record his statement as given, and she then took him to the health care unit. Klebanowski was eventually sent to an outside hospital for stitches on his ear.

Upon his return to the BC tier later that day, Klebanowski approached a small group of correctional officers congregated on his tier and requested that he be moved to another location in the jail because he feared for his life. The officers told Klebanowski they knew what had happened to him, but that it would not help to move him because the conditions were the same wherever he could be moved. Later that evening, Klebanowski approached another officer and again asked to be moved for fear for his life. According to Klebanowski, this officer told him he would not be moved because there was no room anywhere else. The officer also allegedly told Klebanowski that no one was moved on Sundays, which day it happened to be, and that he did not feel like doing any extra paperwork.

At about 9:15 p.m. on the following day, the correctional officer working Klebanowski's unit announced that he was going to open the cells and allow the inmates a few minutes of free time before the 9:30 p.m. inmate count and lockdown. The officer also allegedly announced that after he opened the cells he would be leaving the deck, and would return in a few minutes. Klebanowski exited his cell, and while he was watching television, Little E, Count, and Yo-Yo approached him from behind, and began to beat him again. This time, however, Count pulled out a homemade knife, or "shank," that he had concealed in his pants and stabbed Klebanowski on the left side of his stomach. Klebanowski was stabbed two more times while being beaten, although he was unable to see who stabbed him. Klebanowski escaped, and he jumped over a railing from the top deck on which they were fighting to a lower deck. As he jumped over the rail, Count stabbed him again in the back of the head. Klebanowski claims that once he reached the bottom deck, he ran to an exit and pressed a panic button. There was no response for five minutes following Klebanowski's alarm, and he continued trying to evade Little E, Count, and Yo-Yo. Klebanowski claims that correctional officers finally entered the deck after he waved at them through a large window. The officers ordered the prisoners into their cells. After learning of the nature of the attack on Klebanowski, officers searched all of the cells on the tier and uncovered fourteen shanks. Klebanowski spent two days in the hospital and had his spleen removed as a result of the injuries he sustained during the attack.

Klebanowski filed suit in the district court on September 8, 2004. His original complaint stated claims against Cook County Sheriff Michael Sheahan, Department of Corrections Director Callie Baird, Baird's predecessor Ernesto Velasco,*fn2 Superintendent of Division 11 Henry Troka, as well as "Unknown Corrections Officers 1, 2 & 3." Klebanowski filed an amended complaint on May 9, 2005, adding as a defendant correctional officer Clifford Smith.*fn3 Finally, in his second amended complaint filed July 14, 2005, Klebanowski named as defendants correctional officers William Scott, Jermaine Smith, and Rafael Trevizo to replace the three unknown officers sued in his earlier complaints. Sheahan, Baird, and Troka were sued in their official capacities, and Scott, Smith, and Trevizo were sued individually. Klebanowski brought suit under 42 U.S.C. § 1983 claiming that in three ways the defendants violated his rights as protected by the Fourteenth Amendment: (1) by allowing his wing in Division 11 to be controlled by gang members and by not separating gang members from non-gang members; (2) by allowing gang members to keep weapons in their cells; and (3) by leaving inmate wings entirely unsupervised regularly for significant periods of time. Klebanowski alleged that these were "de facto" policies of the defendants.

The defendants moved for summary judgment arguing that they had not deliberately disregarded any known risk to Klebanowski. The parties' submissions to the district court consisted of Klebanowski's deposition describing the circumstances of his attacks, Cook County Jail rules and regulations governing detainees, a copy of the correctional officers' job description, the statements of individual officers obtained during an investigation of the second attack, and an Incident Report compiled by the Cook County Sheriff's Department following the second attack. The district court granted summary judgment in favor of the defendants. Regarding Sheahan, Baird, and Troka, the district court concluded that Klebanowski presented no evidence of a policy, let alone a policy of deliberate indifference to a known risk to Klebanowski. The district court also concluded that the officers sued in their individual capacities were not on notice of a specific threat to Klebanowski, and therefore had not disregarded any known risk. On appeal, Klebanowski argues that there existed genuine issues of material fact regarding whether the conditions of his incarceration posed a substantial risk of serious harm, and whether the defendants acted with deliberate indifference to that risk.

II.

We review the district court's grant of summary judgment de novo and draw all reasonable inferences in Klebanowski's favor. Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002). A motion for summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact." Fed. R. Civ. P. 56(c). However, a "[p]laintiff may not rely only on the bare assertions of his pleadings." Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 651 (7th Cir. 2006) (citing Fed. R. Civ. P. 56(e)) (emphasis added).

Because the events described above occurred while Klebanowski was a pre-trial detainee, he correctly states his claims under the Due Process Clause of the Fourteenth Amendment. Guzman v. Sheahan, 495 F.3d 852, 856 (7th Cir. 2007). "The protections for pre-trial detainees [under the Fourteenth Amendment] are at least as great as the Eighth Amendment protections available to a convicted prisoner, and we frequently consider the standards to be analogous." Washington v. LaPorte County Sheriff's Dep't, 306 F.3d 515, 517 (7th Cir. 2002) (quotation and citation omitted). It is well-settled that both Amendments impose upon prison officials a duty to protect inmates from violent assaults at the hands of fellow prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994); see also Fisher v. Lovejoy, 414 F.3d 659, 661 (7th Cir. 2005) (noting that the Fourteenth Amendment extends this protection to ...


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