Argued June 6, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 c 813—Marvin E. Aspen, Judge.
Before Posner, Rovner, and Wood, Circuit Judges.
Posner, Circuit Judge.
The plaintiff, a pretrial detainee in a maximum-security tier of the Cook County Jail in Chicago, brought suit under 42 U.S.C. § 1983 against a guard (against others as well, but he doesn't challenge the district judge's dismissal of them), Anderson, who he claims failed to protect him from an attack by other inmates. The district judge granted summary judgment in favor of Anderson. The plaintiff challenges that ruling and also the judge's anterior refusal to request assistance of counsel for the plaintiff.
Construed as favorably to the plaintiff as the record permits, the facts pertinent to his case are as follows:
The plaintiff's tier consisted of 19 double-occupancy cells, containing therefore a total of 38 prisoners. We don't know how many of them were pretrial detainees and how many were serving sentences, so we'll refer to all of them simply as prisoners. Apparently the cells were arrayed in two rows, one of 10 cells and one of 9, facing each other. The prisoners were allowed to spend some time each day out of their cells, in a dayroom that had a television set. But in order to minimize "detainee incidents, " only the prisoners in one row of cells were allowed to be in the dayroom at the same time; the other prisoners remained locked in their cells until it was their turn to visit the dayroom. So instead of 38 prisoners milling about in the dayroom at the same time, at most 20 were permitted to be there.
On the day of the attack, defendant Anderson was the tier officer. She occupied a station, protected by bars, from which she could see the tier of cells with the corridor separating the two rows, and also the dayroom. (The record contains no diagram; that is one of many unfortunate omissions.) A control panel at her station indicated for each cell whether it was securely locked. Shortly after 3 p.m. (the beginning of her shift) she noticed that the control panel indicated that two of the occupied cells, one in each row, were not securely locked. She wrote "security risk" in her log but did nothing further, such as ask another guard to lock the cells.
At 6:30 that evening, Anderson released half the tier occupants for their scheduled time in the dayroom, the plaintiff among them. He testified at his deposition that he overheard some of the other prisoners in the dayroom ask Anderson to let the prisoners in the other half of the tier out of their cells so that they could go to the dayroom too. The district judge said that this testimony was inadmissible hearsay. It was not. The plaintiff was testifying to what he heard—the request that Anderson let out the other inmates—rather than to the truth of anything they said, such as that the prisoners in the other tier wanted to be released from their cells so that they could go to the dayroom out of turn. Testimony to what one heard, as distinct from testimony to the truth of what one heard, is not hearsay. Dutton v. Evans, 400 U.S. 74, 88 (1970); Tunis v. Gonzales, 447 F.3d 547, 551 (7th Cir. 2006).
Shortly afterward the plaintiff heard the sound of cell doors opening, but he saw none of the prisoners enabled by the opening of their cells to leave them enter the dayroom. Instead they congregated in the darkened corridor between the two rows of cells. The lights in the corridor had not been turned on, according to the plaintiff, and so the corridor was dark, and maybe the prisoners didn't want to be easily recognized.
Wanting to return to his cell to use the bathroom facilities in it, the plaintiff stepped into the corridor (it was now about 6:50 p.m.)—where he was forthwith attacked from behind by a number of prisoners, armed with shanks, who stabbed him repeatedly. Most of his attackers seem to have followed him out of the dayroom, but two of them had come from cells in the row of cells that were supposed to be locked. One of them was from a cell that Anderson had noted was not securely locked.
The plaintiff broke free of his attackers and ran toward Anderson's station, shouting for help, but she was not there. He passed out. When he awoke, several guards were present. He was hospitalized for two days for treatment of his multiple stab wounds.
Anderson denies having left her station, yet oddly admits not having witnessed the attack—though she insists, contrary to the plaintiff, that the corridor lights were on. She denies having let anyone from the row of cells that were supposed to be locked out of his cell. But one of the attackers, Raymond Anderson—presumably not a relative of the defendant (though a lawyer, if the plaintiff had had one, would doubtless have wanted to explore the possibility that the two Andersons are related)—had come from one of the cells that were supposed to be locked but not a cell that defendant Anderson had noted on her log as not being securely locked. Another prisoner in the supposedly locked-down row declared that he, too, had been out of his cell and in the dayroom during the attack.
The district judge ruled that even if it was true that the defendant had "failed to protect [the plaintiff] by allowing some detainees out of their cells that shouldn't have been out; failed to make sure lights were working and on in the corridor area; and [had left] her post for about 15-20 minutes, " these facts would establish merely negligence, and not that Anderson had been "aware of a specific, impending, and substantial threat to [the plaintiff's] safety." And so the ...