United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
FEINERMAN, UNITED STATES DISTRICT JUDGE
Kozar, at all relevant times a detainee at Cook County Jail,
filed this suit under 42 U.S.C. § 1983, alleging that
correctional officers Xavier Collier, Lewis Ervin, Joseph
Fabian, James Hardwick, Christopher Munoz, and Jerold Smith
were deliberately indifferent on several occasions to a
substantial risk of harm posed by other detainees. Doc. 40.
Cook County is a defendant for purposes of indemnification.
Id. at 10-11. With discovery closed and a jury trial
set for June 5, 2017, Docs. 50, 74, Defendants have moved for
summary judgment, Doc. 65. The motion is granted in part and
denied in part.
following facts are stated as favorably to Kozar as permitted
by the record and Local Rule 56.1. See Woods v. City
o/Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In
considering Defendants' motion, the court must assume the
truth of those facts, but does not vouch for them. See
Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir.
2015). Kozar has conceded summary judgment on his
Monell claim, medical care claims, and claims
pertaining to an alleged January 31, 2014 attack, Docs. 68,
73, so facts regarding those claims are not included.
December 26, 2013 Incident
December 26, 2013, Kozar was in his cell at Cook County Jail
with several other detainees. Doc. 70 at ¶¶ 1-2.
Four of our defendants-Collier, Ervin, Fabian, and Smith-were
the only correctional officers on duty in Kozar's area.
Id. at ¶ 6. Kozar did not expect to be
assaulted that day, and so he did not tell any of the
officers that he feared that he would be assaulted. Doc. 67
at ¶ 9.
was sitting on his bed when a detainee approached him, pulled
his pants down, and put his genitals near Kozar's face.
Doc. 70 at ¶ 2. Another detainee thrust a storage bin on
top of Kozar to try to pin him down, and then covered him
with a blanket and punched him repeatedly. Ibid.
During this attack, Collier and Smith walked past Kozar's
cell. Doc. 67 at ¶¶ 6-7. They looked inside, saw
what was happening, shook their heads, and walked away.
Id. at ¶ 6; Doc. 70 at 3. Twenty to forty
seconds later, while Kozar was being pummeled, two officers
entered the cell and broke up the fight. Doc. 67 at ¶ 8.
One of the officers was Fabian, and the other is unknown.
Ibid. Ervin was in another area eating lunch during
the entire episode. Doc. 70 at ¶ 7. Kozar suffered a
split lip, bruises all over his body, and perhaps a
concussion as a result of the assault. Id. at ¶
19, 2014 Incident
began sharing a cell with a detainee named Juan Rivera on
April 30, 2014. Doc. 67 at ¶ 19. Rivera's behavior
made Kozar feel afraid; Rivera talked to himself, made
nonsensical comments, forced Kozar to turn around when Rivera
urinated, and acted "generally paranoid."
Id. at ¶¶ 19-20. Kozar first reported
these concerns about a week after he began living with
Rivera. Id. at ¶ 19. By May 19, Kozar sensed
that Rivera's condition had worsened; he was pacing
around the cell, talking to himself, and saying that everyone
was going to rape him. Doc. 70 at ¶ 15.
of our defendants, Munoz, was the correctional officer
supervising Kozar's cell from 3:00 to 11:00 p.m. on May
19. Id. at ¶ 16. Kozar told Munoz several times
that day that he was afraid of Rivera. Id. at ¶
17. At one point, Kozar told Munoz: "You gotta get me
out of this cell. This man is mentally unstable. I can't
be in here. I'm afraid of this guy. I don't know what
I'm going to do." Ibid. Kozar even asked to
be put in solitary confinement in order to get away from
Rivera. Ibid. Munoz initially told Kozar that he was
looking into moving Kozar out of Rivera's cell, but later
said that it would take too much time. Doc. 67 at ¶ 22;
Doc. 70 at ¶ 18. Munoz walked past Kozar's cell
every fifteen minutes until the end of his shift. Doc. 67 at
fell asleep sometime before 11:00 p.m. Id. at ¶
23. Shortly before midnight, Kozar awoke to find that Rivera
had become agitated. Id. at ¶ 16. Rivera
punched Kozar in the face, leaving him with a broken nose and
severe bruising. Id. at ¶¶ 16-17.
November 1, 2014 Incident
November 1, 2014, Kozar was being held in a dormitory. Doc.
70 at ¶ 23. Our last defendant, Hardwick, was the only
correctional officer supervising the dormitory, which housed
about 48 detainees. Doc. 67 at ¶ 29. A dispute arose at
one end of the room, where Kozar and other detainees were
gathered. Doc. 70 at ¶ 24. One detainee began to
"get loud" with Kozar. Ibid. As the
detainee approached him in an aggressive manner, Kozar
maneuvered around some bunk beds to get away and yelled out
to Hardwick for help. Id. at ¶ 25. Hardwick
watched what was happening but did not intervene.
Ibid. Kozar grabbed a nearby cane and swung it to
block the approaching detainee. Id. at ¶ 26.
The detainee overpowered Kozar, grabbed the cane, and threw
him to the ground. Ibid.
walked slowly toward the fight and then stopped a few feet
away from Kozar as he was lying on the ground being punched
and kicked. Id. at ¶¶ 26-27'. Hardwick
stopped other detainees from separating Kozar from his
attacker, telling them to "let them fight it out."
Id. at ¶ 27. Hardwick ultimately broke up the
fight. Doc. 67 at ¶ 31. It was approximately
one-and-a-half to ...