Doe v. Macleod

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

JANE DOE, )

)

Plaintiff, )

)

v. ) Case No. 18-3191

)

RICHARD MacLEOD, WARDEN )

MARGARET BURKE, TODD )

SEXTON, MIKE ATCHISON, )

ANGELA LOCKE, KESS ROBERSON, )

CHRISTINE BRANNON, PATRICK )

KEANE, FELIPE ZAVALA, MICHAEL )

FUNK, ALAN PASLEY, CLARA )

CHARRON, SHARI KLASSEN, )

JENNIFER MEAKER, MARCIA MIBBS, )

HEIDI BROWNE, LISA JOHNSON, )

DEBRA POLLOCK, MELINDA EDDY, )

GRANT WILLIS, CHARLES GIBBONS, )

BOBBIE LeDUC, BRENT BLANCO, and )

other as-yet unidentified employees of )

the Illinois Department of Corrections, )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, United States District Judge:

This is an action under 42 U.S.C. § 1983 wherein Plaintiff Jane

Doe alleges she was sexually abused by her counselor, Defendant

Richard MacLeod, while incarcerated at Logan Correctional Center

(Logan). In addition to Defendant MacLeod, the Plaintiff names 22

other Defendants who were employed by the Illinois Department of

Corrections (IDOC).1 Before the Court is the IDOC Defendants’

Motion for Summary Judgment [d/e 156]. For the following reasons,

the Defendants’ Motion for Summary Judgment is granted in part

and denied in part.

I. INTRODUCTION

On May 20, 2019, following the completion of Plaintiff Jane

Doe’s IDOC sentence, the Plaintiff filed an Amended Complaint

alleging Defendants were deliberately indifferent to her health and

safety. See d/e 37. The Plaintiff generally alleges that, while the

Defendants knew about MacLeod’s sexual abuse of Plaintiff and other

prisoners, Defendants turned a blind eye to those risks and failed to

take reasonable steps to prevent the abuse.

In Count I, the Plaintiff asserts an Eighth Amendment claim

alleging Defendants violated Plaintiff’s right to be free from cruel and

unusual punishment by failing to prevent the harm and/or by

1 The Plaintiff’s Amended Complaint also included claims asserted against Dr. Jennifer

McClellan and Dr. Keena Peek, both of whom were employed by Wexford Health

Services, Inc. Pursuant to the Parties’ Stipulation of Dismissal [d/e 183], Dr.

McClellan and Dr. Peek have been dismissed as Defendants.

consciously disregarding the risk of harm. Id. at 7-8. In Count II,

the Plaintiff alleges certain Defendants retaliated against her for

engaging in protected First Amendment activity when she reported

Defendant MacLeod’s misconduct. Id. at 13. Because a default

judgment has been entered against Defendant MacLeod, Defendant

MacLeod has admitted the allegations in the Complaint and Amended

Complaint and his liability is no longer at issue. See Text Order of

Apr. 22, 2021.

The Defendants allege Plaintiff cannot demonstrate that each

Defendant was aware of facts from which an inference could be

drawn that Plaintiff faced a substantial risk of serious harm. See d/e

156-1, at 4. The Defendants also assert it is undisputed that prison

officials responded reasonably to any known risk of harm. Id.

Additionally, the Defendants claim Plaintiff cannot prevail under a

Monell theory of liability brought against employees sued in their

individual capacities. Id. The Defendants further claim they are

entitled to qualified immunity. Id. For these reasons and because

the Defendants assert they had no personal involvement in any

alleged constitutional deprivation, the Defendants allege summary

judgment must be entered in their favor. Id.

II. FACTS

A. Parties

Plaintiff Jane Doe is the mother of a young daughter and began

serving a sentence within IDOC at Logan in 2015. See d/e 37 ¶ 3,

d/e 153, at 2. Logan is a female prison that houses inmates classified

as maximum, medium, and minimum security. See d/e 156-1, at

18. The Plaintiff was released from custody on August 4, 2017. See

d/e 156, at 4.

Defendant Richard MacLeod is employed as a Correctional

Counselor II by IDOC. See d/e 37 ¶ 4. At all relevant times, MacLeod

provided counseling services for female inmates at Logan. Id.

Defendant Todd Sexton was a supervisory officer at Logan and

a member of the prison’s Internal Affairs Department at the time of

the events relevant to this case. Id. ¶ 5.

Defendants Mike Atchison, Mike Funk, Patrick Keane, Felipe

Zavala, and Alan Pasley were employed as administrators within

IDOC and were responsible for developing, implementing, and

overseeing implementation of the Prison Rape Elimination Act

(“PREA”) at all IDOC facilities, including Logan; for ensuring that

administrators and staff at Logan and other IDOC facilities took steps

to address the problem of custodial sexual assault; and for ensuring

the reasonable safety of women in IDOC custody. Id. ¶ 6.

Defendants Christine Brannon, Kess Roberson, Angela Locke,

and Margaret Burke held the position of Warden and/or Acting

Warden of Logan during the relevant time period. Id. ¶ 7. These

Defendants were responsible for overseeing day-to-day operations at

Logan, including compliance with PREA; for promulgating rules,

regulations, policies, and procedures to ensure reasonable safety of

women prisoners at Logan; and for supervising, training, assigning,

and disciplining counselors, correctional officers, and internal affairs

investigators at Logan, including Defendants Richard MacLeod and

Todd Sexton. Id.

Defendants Clara Charron, Shari Klassen, Jennifer Meaker,

Heidi Browne, Lisa Johnson, Debra Pollock, and Melinda Eddy held

the position of PREA compliance manager and/or backup PREA

compliance manager for Logan during the relevant time period. Id. ¶

8. These Defendants were responsible for developing, planning, and

overseeing efforts to address the problem of custodial sexual assault

at Logan and for ensuring compliance with PREA regulations and

standards. Id.

Defendants Grant Willis, Charles Gibbons, Bobbie LeDuc, and

Brent Blanco were members of the PREA incident review team at

Logan during the relevant time period. Id. ¶ 9. In that role, the

Defendants were responsible for reviewing investigations into

allegations of sexual assault at Logan and for evaluating and

recommending policy changes to prison administrators to address

the problem of sexual assault at the facility. Id.

B. Allegations against Richard MacLeod

The Plaintiff first met Richard MacLeod in August of 2016. See

d/e 159-1, at 29. MacLeod was assigned as the Plaintiff’s Women

and Family Services counselor, a program at Logan designed to help

female inmates stay in touch with their children. Id. MacLeod was

a counselor in the Children and Family Services department with

responsibility over teaching classes, teaching groups, and providing

services to certain assigned female inmates. Id. at 30. The Plaintiff

was receiving bi-weekly court ordered phone calls with her child. Id.

For Plaintiff to receive the phone calls, she would have to visit her

Women and Family Services counselor. Id. at 32.

The Plaintiff attended multiple classes within the Women and

Family Services housing unit, including Leadership and Healthy

Relationships. Id. at 35. MacLeod was the instructor for the

Leadership and Healthy Relationships classes and was Plaintiff’s

Women and Family Services counselor. Id. The Plaintiff and

MacLeod’s first meeting was in mid-August 2016 when MacLeod

asked Plaintiff if she would like to be screened to attend a healthy

relationships class, to which Plaintiff responded affirmatively. Id. at

38, 83-84.

The Vocational Building at Logan has two classrooms, a front

one and a classroom further down the hall. Id. at 36-37. In August

2016, MacLeod told the Plaintiff she was pretty and asked her if she

would tell anyone if MacLeod kissed her, to which Plaintiff responded,

“I don’t know, probably not.” See d/e 156-1, at 7; d/e 162, at 31.

The Plaintiff testified MacLeod first kissed her in mid-August 2016 in

the back classroom of the Vocational Building. See d/e 159, at 39,

84. Plaintiff and MacLeod had sexual intercourse for the first time in

late August or early September 2016. Id. at 84. The first instance of

sexual intercourse occurred in the front classroom of the Vocational

Building on a Saturday after 6:00 p.m. Id. at 39-41. The Plaintiff

and MacLeod had intercourse for a second time approximately three

weeks to one month after the first time they had sex. Id. at 84. The

second time Plaintiff and MacLeod had sexual intercourse was in the

office of the head counselor for the Women and Family Services

program, Sherrin Fitzer. Id. at 46. After the second instance of

sexual intercourse and before the last instance of sexual intercourse,

MacLeod masturbated in front of the Plaintiff while Plaintiff was on

the phone with her daughter. Id. at 51-52.

Between August 2016 and March or April of 2017, the Plaintiff

had sexual intercourse with MacLeod on at least three occasions, and

Plaintiff performed oral sex on MacLeod on at least two occasions.

See 156-1, at 7. The sex acts occurred in the Logan Vocational

Building, either in a classroom or in the private office of MacLeod’s

supervisor, Sherrin Fitzer. Id. On several occasions, MacLeod

exposed his penis to the Plaintiff while she was on the phone with

her child. Id.

In approximately December of 2016, the Plaintiff reported an

allegation of sexual assault or harassment by her roommate. Id. The

Plaintiff reported the allegation by submitting a written piece of paper

directed to the internal affairs department. Id. at 8. The Plaintiff

contends it is immaterial she did not report MacLeod’s abuse of her

prior to August 2017 in part because MacLeod had threatened

Plaintiff with harsh punishments if she had reported the abuse. See

d/e 162, at 31.

Monica Strandberg is an Illinois State Police (ISP) Special Agent

who began working in the Division of Internal Investigation in

February 2016. See d/e 164-2, at 24-25. During the criminal

investigation of MacLeod, Strandberg interviewed the Plaintiff and

two other inmates who claimed MacLeod had sexually abused them

before and after his sexual abuse of Plaintiff. Id. at 142; d/e 165-17.

Strandberg testified she suspected that MacLeod sexually abused

Logan inmates in addition to Plaintiff and the two other individuals.

See d/e 164-2, at 125. Logan scheduling records generally

corroborated the time of the victims’ accounts of being sexually

assaulted by MacLeod. Id. at 168.

On August 4, 2017, MacLeod was removed from working in the

vocational building and transferred to Logan administration. See d/e

162, at 138. At that time, Assistant Warden Wilson recommended

that MacLeod be locked out of Logan but that recommendation was

not followed. Id. Warden Burke testified that, while she also

recommended that MacLeod be locked out, IDOC officials did not

follow that recommendation. See d/e 182-1 at 66. MacLeod

continued working at Logan for thirteen months after he was formally

referred to ISP for investigation. See d/e 162, at 138. After thirteen

months, MacLeod was placed on administrative leave with pay. Id.

MacLeod earned over $97,500 plus benefits in 2019. Id. at 139.

C. Handbook and IDOC training

According to the Plaintiff’s Cumulative Counseling Summary,

the Plaintiff received an offender handbook and orientation manual

(handbook) on April 16, 2015. See d/e 158-28, at 8. The Plaintiff

disputes this allegation on the basis that she does not recall receiving

the handbook. See d/e 162, at 23. The handbook contained a

section labeled “Offender Sexual Abuse/Assault Misconduct—

Prevention and Intervention Procedure.” See d/e 156-1, at 5. The

handbook explained that an inmate can report sexual abuse by

making a free call from any inmate phone to a PREA Report Line and

leaving a message. Id. The handbook explained that an inmate

should immediately report an incident of sexual abuse to a counselor,

chaplain, psychologist, medical personnel, or any other staff

member. Id. The handbook explained that an inmate can report

sexual abuse by filling out a request slip asking to speak with internal

affairs, an assistant warden, or the warden. Id. The handbook

explained that an inmate can report sexual abuse by sending a sealed

letter describing the allegations to the warden, a Deputy Director for

IDOC, or the Director for IDOC. Id. The handbook explained that an

inmate can report sexual abuse by sending a letter to IDOC

headquarters in Springfield, Illinois, or to the John Howard

Association in Chicago, Illinois. Id. The handbook explained that an

inmate should seek medical assistance if she has been sexually

assaulted, may be pregnant, or may have been exposed to sexually

transmitted diseases. Id.

IDOC Administrative Directive 04.01.301 governs the sexual

abuse and harassment prevention and intervention program for all

IDOC facilities. Id. Logan Institutional Directive 04.01.301 governs

the sexual abuse and harassment prevention and intervention

programs specific to Logan. Id. IDOC created a PREA sexual abuse

and harassment prevention and intervention program manual

effective February 16, 2016, in order to provide guidance towards

implementing zero tolerance against all forms of sexual abuse and

harassment. Id. at 6. All IDOC employees receive annual “cycle

training” that includes a section on PREA reporting and policies. Id.

In 2015, inmates at Logan alleged sixteen instances of staff on

inmate sexual abuse or harassment, two of which were

substantiated. Id. In 2016, inmates at Logan alleged 54 instances

of staff on inmate sexual abuse or harassment, three of which were

substantiated. Id.

In 2016, Philip Bradshaw, an independent auditor, found Logan

met all 42 required standards under PREA. Id.; d/e 162, at 26. At

the time of the 2016 audit, Logan had 249 surveillance cameras

located throughout the facility, as well as mirrors to assist in

alleviating blind spots. See d/e 156-1, at 6. At the time of the 2016

audit, Logan had postings regarding PREA reporting and IDOC’s zero

tolerance policy for sexual abuse and harassment prominently

displayed in all housing units, common areas, and throughout the

facility. Id. Bradshaw found that the inmate population at Logan

was 1,017 at the time of the 2016 audit. Id.

In 2017, inmates at Logan alleged 45 instances of staff on

inmate sexual abuse or harassment, none of which were

substantiated. Id. In 2019, Dwight Fondren, an independent

auditor, found Logan met all 43 standards under PREA. Id. at 7; d/e

162, at 29. Fondren found that posters containing the PREA hotline

number were prominently displayed in the main lobby area and

hallways at the time of the 2019 audit. See d/e 156-1, at 7. At that

time, Logan had 500 surveillance cameras located throughout the

facility. Id. At the time of the 2019 audit, the inmate population at

Logan was 1,715. Id.

D. Other Defendants

(1) Todd Sexton

Todd Sexton was employed as a correctional lieutenant

assigned to the internal affairs unit at Logan from August 2016 to

October 2017. See d/e 156-1, at 8. On December 8, 2016, Sexton

interviewed a third-party female inmate regarding an allegation of

staff on inmate sexual abuse. Id. According to the third party

inmate, the Plaintiff told her that (1) Plaintiff has been having sexual

intercourse with MacLeod for a couple of months, (2) Plaintiff had

asked MacLeod to start bringing condoms into the facility but he said

it was too risky, and (3) while showering, Plaintiff told the third party

inmate that Plaintiff had to “get freshened up for [her] man.” Id. The

Plaintiff responds to the third allegation by noting that Logan inmates

cannot consent to being sexually abused by Logan staff and, even if

Defendants were under the impression that Plaintiff welcomed the

sex acts, the Defendants still had an obligation to protect the Plaintiff

from MacLeod. See d/e 162, at 32.

The Defendants allege that, after receiving the third party

inmate’s allegation, Sexton asked the Plaintiff if there was anything

she wanted to talk to him about but she acted like nothing was

wrong. See d/e 156-1, at 8. The Plaintiff disputes this allegation.

See d/e 162, at 20. Sexton relayed the third party inmate’s allegation

to Warden Margaret Burke and Sexton’s supervisors within the IDOC

investigations department, who told Sexton to collect more evidence.

See d/e 156-1, at 8. Sexton took steps such as hiding in the vocation

building and speaking with others but was unable to obtain any

corroborating evidence. Id. In response to the allegation that Sexton

was unable to obtain any corroborating evidence, the Plaintiff claims

that Sexton failed to perform basic investigatory steps, such as (1)

interviewing MacLeod; (2) looking at MacLeod’s scheduling logs; or

(3) attempting to collect physical evidence. See d/e 162, at 4. The

Plaintiff further questions whether, in “speaking with others,” Sexton

appropriately questioned witnesses. Id.

The Plaintiff told her mother about the sexual relationship with

MacLeod but made her mother promise not to report it to the

authorities. See d/e 156-1, at 8. On August 4, 2017, the Plaintiff

finally told Sexton that Plaintiff and MacLeod had previously had

sexual intercourse and that she had performed oral sex on MacLeod.

Id. at 9. After the Plaintiff spoke with Sexton, Plaintiff also spoke

with psychologist Michael Kessler on August 4, 2017. Id. The

Plaintiff also spoke with medical professional Lisa Johnson on

August 4, 2017. Id. On August 4, 2017, after reporting MacLeod to

Sexton, the Plaintiff was transferred from Logan to Decatur

Correctional Center (Decatur). Id. Decatur is a female prison that

houses inmates classified as minimum security. Id. at 18. The

Defendants allege non-party Assistant Warden Angel Wilson made

the determination to transfer the Plaintiff to Decatur. Id. at 9. The

Plaintiff disputes this assertion on the basis that multiple Defendants

including Burke, Sexton, and Marcia Mibbs participated in the

decision to transfer Plaintiff to Decatur. See d/e 162, at 6-7.

(2) Mike Atchison

Mike Atchison never worked at Logan, but he visited the facility

during site visits. See d/e 156-1, at 9. Atchison was the IDOC

deputy chief of operations from January 2012 to March 2016. See

d/e 162, at 7. Atchison was the IDOC chief of operations from

approximately March 2016 through October 2017. Id. The Plaintiff

did not report MacLeod’s sexual abuse directly to Atchison at any

time, though Plaintiff alleges Atchison knew or should have known

about the sexual abuse because of his position at IDOC. See d/e

156-1, at 9; d/e 162, at 7-8.

(3) Brent Blanco

Brent Blanco worked at Logan from 1995 to present, first as a

correctional officer from 1995 to 2007 and then as a counselor from

2007 to present. See d/e 156-1, at 10. Blanco was on the Logan

PREA incident review team from September 2016 to May 2017. See

d/e 162, at 98-99. The Plaintiff did not report MacLeod’s sexual

abuse to Blanco at any time, though Plaintiff alleges Blanco knew or

should have known about the sexual abuse. Id. at 35.

(4) Christine Brannon

Christine Brannon worked as the warden at Logan from August

2015 to February 2016. See d/e 156-1, at 10. The Plaintiff did not

report MacLeod’s sexual abuse directly to Brannon at any time,

though Plaintiff alleges Brannon knew or should have known about

the sexual abuse. Id.; d/e 162, at 37.

(5) Heidi Browne

Heidi Browne worked at Logan from 2012 to present. See d/e

156-1, at 10. From 2012 to April 2015, Browne was an office

associate for the Logan receiving and classification department. Id.

In April 2015, Browne became an administrative assistant. Id.

Browne was the Logan PREA compliance manager prior to MacLeod’s

sexual abuse of Plaintiff from September 2015 to November 2015 and

a member of the Logan PREA incident review team from May 2017 to

2018. See d/e 162, at 97-99. The Plaintiff did not report MacLeod’s

sexual abuse directly to Browne at any time, though Plaintiff alleges

Browne knew or should have known about the sexual abuse. Id at

38-39.

(6) Margaret Burke

Margaret Burke worked in an interim capacity as an IDOC adult

transition coordinator from March to September 2013. See d/e 156,

at 11. As the adult transition coordinator, Burke oversaw the

transfer of inmates from one facility to another. Id. The Defendants

allege that, in March 2013, Burke helped address any necessary

modifications related to Logan’s transition from an all-male to all-

female facility. Id. The Plaintiff disputes that allegation on the basis

that Defendants present no evidence that Burke helped to address

any necessary modifications to Logan. See d/e 162, at 9.

Sometime in 2013, Burke became the coordinator for the IDOC

Women and Family Services department. See d/e 156-1, at 11. In

April 2016, Burke became acting warden at Logan and held the

position of warden during the time period MacLeod was sexually

abusing Plaintiff until Burke retired in December 2017. Id. The

Plaintiff did not report MacLeod’s sexual abuse directly to Burke at

any time, though Plaintiff alleges Burke knew or should have known

about the sexual abuse because Defendant Sexton had informed

Burke of the third party inmate’s allegation about MacLeod’s sexual

abuse of Plaintiff. Id.; d/e 162 at 41.

(7) Clara Charron

Clara Charron worked as the assistant warden of programs at

Logan from 2013 to June 2016. See d/e 156, at 11. Charron was a

PREA compliance manager at Logan from September 2015 to

November 2015. See d/e 162, at 97-98. The Plaintiff did not report

MacLeod’s sexual abuse directly to Charron at any time, though

Plaintiff alleges Charron knew or should have known about the

sexual abuse. Id. at 45-46.

(8) Melinda Eddy

Melinda Eddy worked as the assistant warden of life skills and

re-entry at Logan from March 2017 to present. See d/e 156-1, at 11.

Eddy was a PREA compliance manager from May 2017 to July 2018.

See d/e 162, at 97-98. The Plaintiff did not report MacLeod’s sexual

abuse directly to Eddy at any time, though Plaintiff alleges Eddy

knew or should have known about the sexual abuse. Id. at 49.

(9) Michael Funk

Michael Funk never worked at Logan. See d/e 156, at 12. Funk

worked as the IDOC designee who led the state-wide PREA audit

process from November 2015 to May 2016. Id. Funk worked as the

IDOC manager of the employee services division from June 2016 to

June 2018. Id. Funk was also an IDOC PREA coordinator from

November 2015 to September 2016. See d/e 162, at 97. The Plaintiff

did not report MacLeod’s sexual abuse directly to Funk at any time,

though Plaintiff alleges Funk knew or should have known about the

sexual abuse. Id. at 52-53.

(10) Charles Gibbons

Charles Gibbons worked as a counselor at Logan from 2003 to

2012 and then as a casework supervisor from January 2013 to June

2016. See d/e 156-1, at 12. Gibbons was responsible for supervising

MacLeod for some period of time prior to Gibbons’ departure from

Logan in June 2016. Id. Gibbons wrote up MacLeod for workplace

violations on several occasions for infractions that did not involve

sexual abuse or assault. Id. Gibbons was a member of Logan’s PREA

incident review team until May 2016, which was prior to MacLeod’s

sexual abuse of Plaintiff. See d/e 162, at 98. The Plaintiff did not

report MacLeod’s sexual abuse directly to Gibbons at any time,

though Plaintiff alleges Gibbons knew or should have known about

the sexual abuse. Id. at 77.

(11) Lisa Johnson

Lisa Johnson worked at Logan as the health care unit

administrator from December 2013 to 2018. See d/e 156-1, at 13.

Johnson was both a Logan PREA compliance manager and Logan

PREA incident review team member during the time MacLeod was

sexually abusing the Plaintiff. See d/e 162, at 12. The Plaintiff

reported MacLeod’s sexual abuse directly to Johnson on August 4,

2017. See d/e 156-1, at 13. The Defendants allege Johnson did not

know any sexual abuse was occurring between MacLeod and Plaintiff

prior to August 4, 2017, though Plaintiff alleges Johnson knew or

should have known about the sexual abuse. Id.; d/e 162, at 12-13.

(12) Patrick Keane

Patrick Keane never worked at Logan. See d/e 156-1, at 13.

Keane worked as the IDOC programs compliance manager from

February 2012 to November 2015. Id. At some point during his

tenure as programs compliance manager, Keane was assigned duties

as the IDOC backup PREA coordinator and IDOC PREA coordinator.

Id. The Plaintiff did not report MacLeod’s sexual abuse directly to

Keane at any time, though Plaintiff alleges Keane knew or should

have known about the sexual abuse. Id; d/e 162, at 60-61.

(13) Shari Klassen

Shari Klassen worked at Logan as an office administrative

specialist from August 2005 to November 2016. See d/e 156-1, at

13. As an office administrative specialist, Klassen was the

administrator for the computer local area network (LAN) and telecom

coordinator. Id. at 14. Klassen also held the position of Logan PREA

compliance manager from July 2016 to November 2016. See d/e

162, at 102. The Plaintiff did not report MacLeod’s sexual abuse

directly to Klassen at any time, though Plaintiff alleges Klassen knew

or should have known about the sexual abuse. See d/e 156-1, at 14;

d/e 162, at 65.

(14) Angela Locke

Angela Locke worked as the acting warden at Logan from

October 2013 to June 2015. See d/e 156-1, at 14. The Plaintiff did

not report MacLeod’s sexual abuse directly to Locke at any time,

though Plaintiff alleges Locke knew or should have known about the

sexual abuse. Id.; d/e 162, at 66-67.

(15) Jennifer Meaker

Jennifer Meaker worked at Logan from March 2013 to

September 2017, first as a correctional nurse and then as the director

of nursing from September 2016 to September 2017. See d/e 156-

1, at 14. Meaker was also a PREA compliance manager from

November 2016 to May 2017. See d/e 162, at 98. The Plaintiff did

not report MacLeod’s sexual abuse directly to Meaker at any time,

though Plaintiff alleges Meaker knew or should have known about

the sexual abuse. Id. at 69-70; d/e 156, at 14.

(16) Marcia Mibbs

Marcia Mibbs worked at Logan from February 2016 to July

2018. See d/e 156-1, at 14. Mibbs worked as a mail room assistant

at Logan from February 2016 to April 2016. Id. at 15. Mibbs worked

as a case work supervisor in the Women and Family Services

Department at Logan from April 2016 to September 2016. Id. Mibbs

was temporarily assigned as the IDOC clinical services supervisor at

Logan from September 2016 to June 2017. Id. Mibbs worked as the

IDOC case work supervisor in Women and Family Services at Logan

from June 2017 to July 2018. Id. Mibbs was responsible for training

MacLeod in relation to his duties in Women and Family Services. Id.

Mibbs also held the position of PREA compliance manager from May

2017 to July 2018. See d/e 162, at 98. The Plaintiff did not report

MacLeod’s sexual abuse directly to Mibbs at any time, though

Plaintiff alleges Mibbs knew or should have known about the sexual

abuse. See d/e 156-1, at 15; d/e 162, at 72-73.

(17) Alan Pasley

Alan Pasley worked at Logan from June 2013 to October 2016

as the superintendent of the Logan reception and as classification

center where new female inmates first arrive within the IDOC system.

See d/e 156-1, at 15. Subsequently, Pasley worked as the IDOC

PREA coordinator and Americans with Disabilities Act coordinator

from October 2016 to January 2018. Id. The Plaintiff did not report

MacLeod’s sexual abuse directly to Pasley at any time, though

Plaintiff alleges Pasley knew or should have known about the sexual

abuse. Id.; d/e 162, at 73.

(18) Debra Pollock

Debra Pollock worked at Logan as a secretary for approximately

19 years until her retirement in December 2017. See d/e 156-1, at

16. Pollock was a PREA compliance manager at Logan from

November 2016 to May 2017. See d/e 162, at 98. The Plaintiff did

not report MacLeod’s sexual abuse directly to Pollock at any time,

through Plaintiff alleges Pollock knew or should have known about

the sexual abuse. Id. at 75-76.

(19) Bobbie Jean Reavis (formerly LeDuc)

Bobbie Jean Reavis worked as a correctional officer assigned to

the intelligence unit at Logan sometime between 2013 to 2017. See

d/e 156-1, at 16. As an officer assigned to the intelligence unit,

Reavis acted as an investigatory officer at Logan but did not

investigate allegations of staff on offender sexual abuse. Id. Reavis

was also on the PREA incident review team from May 2016 to May

2017. See d/e 162, at 98. The Plaintiff did not report MacLeod’s

sexual abuse directly to Reavis at any time, though Plaintiff alleges

Reavis knew or should have known about the sexual abuse. Id. at

77-78.

(20) Kess Roberson

Kess Roberson worked as the assistant warden of operations at

Logan from August 2011 to March 2013 and as the warden at Lincoln

Correctional Center from March 2013 to December 2018. See d/e

156, at 16. Roberson was also assigned as the acting warden at

Logan from June to August 2015. Id. The Plaintiff did not report

Roberson’s sexual abuse directly to Roberson at any time, though

Plaintiff alleges Roberson knew or should have known about the

sexual abuse. See d/e 162, at 78-79.

(21) Grant Willis

Grant Willis worked at Logan as a correctional officer assigned to

the intelligence unit at Logan in 2016 and 2017, except for two

months in 2016 when he worked for the Illinois Department on Aging.

See d/e 156-1, at 17. As a correctional officer assigned to the

intelligence unit at Logan, Willis would not have investigated

allegations of staff on inmate sexual abuse or harassment. Id. Willis

was on the PREA incident review team at Logan from May 2016 to

May 2017. See d/e 162, at 98. The Plaintiff did not report MacLeod’s

sexual abuse to Willis at any time, though Plaintiff alleges Willis knew

or should have known about the sexual abuse. Id. at 80-81.

(22) Felipe Zavala

Felipe Zavala never worked at Logan. See d/e 156-1, at 17.

Zavala was employed by IDOC as the manager for the training

academy in Springfield, Illinois from 2013 to 2015. Id.

Subsequently, Zavala was employed as an assistant warden at

Taylorville Correctional Center from 2015 to 2017. Id. Zavala was

the IDOC PREA coordinator from February 2012 to November 2015,

prior to MacLeod’s abuse of Plaintiff. See d/e 162, at 97. The Plaintiff

did not report MacLeod’s sexual abuse directly to Zavala at any time,

though Plaintiff alleges Zavala knew or should have known about the

sexual abuse. Id. at 86.

E. Plaintiff’s expert testimony

In alleging Defendants were deliberately indifferent to the risk

that MacLeod posed to the Plaintiff and other Logan inmates, the

Plaintiff relies on the testimony of Brenda Smith who, among other

areas of expertise, served on the PREA National Prison Rape

Elimination Commission at the appointment of then-U.S. House of

Representatives Minority Leader Nancy Pelosi between November

2003 and August 2009. See d/e 164-7, at 7. The Plaintiff claims

Smith’s report details Defendants’ roles and responsibilities under

PREA and their failures in the discharge of those duties. See d/e

162, at 145-46. The Plaintiff alleges Smith’s report contains the

opinion that IDOC and Logan staff knew or should have known of the

pervasive risk of staff-on-inmate sexual assault at Logan but failed

to address that risk through appropriate supervision, surveillance,

investigation, and discipline. Id. According to Smith’s report, the

Defendants were deliberately indifferent to the known and

documented risk of staff-on-inmate assault posed to Plaintiff. Id.

Moreover, the practices and culture at Logan facilitated MacLeod’s

assault of the Plaintiff. Id. Smith’s report includes the opinion that

IDOC and Logan staff knew that MacLeod had a history of sexually

inappropriate behavior and thus allowing MacLeod unfettered and

unsupervised access to Plaintiff was contrary to the best correctional

practices and common sense. Id. Finally, Smith’s report contains

the opinion that Defendants were deliberately indifferent to the risk

that MacLeod posed to Plaintiff. Id.

The Defendants dispute each of the Plaintiff’s allegations

concerning Smith’s opinions because Defendants claim (1) Smith

does not know the correct legal standard for deliberate indifference

claims; and (2) Smith could not point to any factual basis for her

alleged ipse dixit conclusions. See 182-1, at 77. The Defendants also

claim Smith’s opinion is immaterial because it only supports

Plaintiff’s allegations of a generalized risk of harm and does nothing

to connect the dots to acts or omissions by the individual Defendants.

Id.

III. DISCUSSION

A. Summary judgment standard

Summary judgment is appropriate if the motion is properly

supported, and “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” See Fed.

R. Civ. P. 56(a). The Court views the evidence and construes all

reasonable inferences in favor of the non-movant. See Driveline

Systems, LLC v. Arctic Cat, Inc., 936 F.3d 576, 579 (7th Cir. 2019).

To create a genuine factual dispute, however, any such inference

must be based on something more than “speculation or conjecture.”

See Harper v. C.R. England, Inc., 687 F.3d 297, 306 (7th Cir. 2012)

(citation omitted). “The court does not assess the credibility of

witnesses, choose between competing reasonable inferences, or

balance the relative weight of conflicting evidence.” Driveline

Systems, 936 F.3d at 579 (internal quotation marks omitted).

Ultimately, there must be enough evidence in favor of the non-

movant to permit a jury to return a verdict in its favor. See Springer

v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). In ruling on cross-

motions for summary judgment, the Court views “all facts and

inferences in the light most favorable to the nonmoving party on each

motion.” Lalowski v. City of Des Plaines, 789 F.3d 784, 787 (7th Cir.

2015).

B. Eighth Amendment--deliberate indifference standard

To establish an Eighth Amendment violation, the Plaintiff must

show that Defendants acted with deliberate indifference to an

excessive risk to Plaintiff’s health or safety. See J.K.J. v. Polk County,

960 F.3d 367, 376 (7th Cir. 2020). Obviously, a staff on inmate

sexual assault constitutes an objectively serious risk to an inmate’s

safety. See id. The deliberate indifference standard is a subjective

one. See Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d

525, 529 (7th Cir. 2000). It is not enough to allege a prison official

objectively should have been aware of the danger to the inmate. See

id. “Ordinarily, a prison official does not violate the Eighth

Amendment when he should have been aware of a risk that harm

would befall an inmate but was not actually subjectively aware of

that risk.” Id. at 530 (quoting Farmer v. Brennan, 511 U.S. 825, 832

(1994)). In assessing deliberate indifference, therefore, courts

examine the prison official’s subjective state of mind. See Petties v.

Carter, 836 F.3d 722, 728 (7th Cir. 2016). A plaintiff must show

“evidence that an official actually knew of and disregarded a

substantial risk of harm.” Id. (citing Farmer, 511 U.S. at 837).

In Haley v. Gross, 86 F.3d 630 (7th Cir. 1996), the Seventh

Circuit noted that actual knowledge of the substantial risk “can be

inferred by the trier of fact from the obviousness of the risk.” Id. at

641 (citing Farmer, 511 U.S. at 842). If a plaintiff presents evidence

that a risk of attacks was “longstanding, pervasive, well-documented,

or expressly noted by prison officials in the past, and the

circumstances suggest that the defendant-official being sued had

been exposed to information concerning the risk and thus must have

known about it,” then an inference of actual knowledge of a

substantial risk of harm may be permissible. Farmer, 511 U.S. at

843. A general risk of harm is not enough to establish the existence

of a substantial risk. See Shields v. Dart, 664 F.3d 178, 181 (7th Cir.

2011).

Individual liability under section 1983 requires personal

involvement in the constitutional deprivation. Gonzalez v. McHenry

County, 40 F.4th 824, 828 (7th Cir. 2022). To establish personal

liability under section 1983, a plaintiff must show that the official

“caused the constitutional deprivation at issue or acquiesced in some

demonstrable way in the alleged constitutional violation.” Id. “Each

case must be examined individually, with particular focus on what

the officer knew and how he responded.” Dale v. Poston, 548 F.3d

563, 569 (7th Cir. 2008). The Seventh Circuit further explained:

[I]n order to hold an individual defendant liable under § 1983

for a violation of an inmate’s constitutional rights, the inmate

must show that the defendant was personally responsible for

that violation. A defendant will be deemed to have sufficient

personal responsibility if he directed the conduct causing the

constitutional violation, or if it occurred with his knowledge or

consent. While the defendant need not have participated

directly in the deprivation of the plaintiff’s constitutional right

to be held liable, he or she must nonetheless have known about

the conduct, facilitated it, approved it, condoned it, or turned a

blind eye for fear of what they might see.

Rasho v. Elyea, 856 F.3d 469, 478 (7th Cir. 2017) (internal quotation

marks and citations omitted).

The Defendants allege the record does not support the Plaintiff’s

assertion that the risk of substantial harm from sexual assault was

obvious. See d/e 156-1, at 20. Initially, the Plaintiff was

incarcerated at Logan for fifteen months before any alleged sexual

misconduct by MacLeod began in August 2016. Id. Another factor

cited by Defendants regarding why the risk was not obvious is

because, out of 115 allegations of staff on inmate sexual abuse at

Logan between 2015 and 2017, only five were substantiated. Id.

Additionally, an independent auditor in 2016 found Logan met all 42

required standards under PREA and was found to be “fully compliant

with the PREA.” Id. at 20-21. In 2019, a different independent

auditor found Logan met all 43 required standards under PREA. Id.

at 21. In further support of the Defendants’ argument, Defendants

state that at the time of the 2016 and 2019 independent PREA audits,

Logan’s population was 1,017 and 1,715 respectively. Id. The

Defendants claim that, even when a conservative calculation is used,

only 0.294% of inmates were found to have suffered from a

substantiated instance of staff on inmate sexual abuse or misconduct

during 2016. Id.

(1) Defendants Burke and Sexton

The Plaintiff first contends that a reasonable jury could

conclude that Burke’s and Sexton’s deliberate indifference caused

the Plaintiff’s harm. See d/e 162, at 148. At the time MacLeod

sexually abused the Plaintiff, Burke was the warden at Logan. Id. On

December 8, 2016, Sexton, the investigating internal affairs

employee, interviewed a third-party inmate who reported that

Plaintiff had described MacLeod as her “man” and indicated she had

to shower “to get freshened up for [my] man.” See d/e 159-21, at 15-

16, 19-21, 155-156, 172-178. Sexton testified that the third-party

inmate indicated that Plaintiff had been at the vocational center with

MacLeod the night of December 7, 2016, the night before Sexton

interviewed the third-party inmate, though the third-party inmate did

not know whether MacLeod had engaged in any inappropriate

conduct on that occasion. Id. at 175-76. The Court finds that, based

on Sexton’s interview with the third party inmate, there is a factual

issue as to whether Defendants Sexton and Burke actually knew of

and disregarded a substantial risk of harm to the Plaintiff.

The record establishes that Burke and Sexton did not take any

measures to cut off Macleod’s access to the Plaintiff, report the

incident, question MacLeod, or attempt to collect physical evidence.

The Defendants admit that Sexton, with Burke’s knowledge,

conducted surveillance where he attempted to catch MacLeod in the

act of engaging in sexual misconduct with the Plaintiff. See d/e 182-

1, at 60. This was the only time Burke approved an investigation like

this. Id. After three unsuccessful attempts at catching MacLeod in

the act, Sexton discontinued his surveillance efforts in January

2017. Id. at 61. The Plaintiff was sexually assaulted again by

MacLeod in February 2017. Id. Sexton did not directly question the

Plaintiff regarding her victimization by MacLeod until August 2017

when Sexton learned that MacLeod was sexually harassing a female

corrections officer. See 164-7, at 10-11. Based on this portion of

the record, there at least is a factual dispute regarding whether Burke

and Sexton knew that MacLeod was sexually abusing the Plaintiff

while the abuse was occurring. Additionally, there are genuine

issues of material fact concerning whether Burke and Sexton failed

to take appropriate action upon first learning of MacLeod’s sexual

abuse of Plaintiff, thereby allowing the abuse to continue. A jury

could find that constitutes deliberate indifference. See Haywood v.

Hathaway, 842 F.3d 1026, 1031-33 (7th Cir. 2016) (noting that

“plainly inappropriate” responses can allow for an inference of

deliberate indifference).

To the extent that Defendants argue Plaintiff wanted to engage

in sex acts with MacLeod, prisoners cannot consent to sex with

prison staff under any circumstances. See d/e 162-1, at 36. That

constitutes staff sexual misconduct which is against IDOC policy and

against the law. Id. In J.K.J., the Seventh Circuit noted the obvious

reason for that policy is the power disparity between correctional

employees and female inmates:

They were confined in circumstances where they depended on

male guards for nearly everything in their lives—their safety as

well as their access to food, medical care, recreation, and even

contact with family members. With this authority and control

for the guards came power and, in turn, access and opportunity

to abuse it. It is difficult to conceive of any setting where the

power dynamic could be more imbalanced than between a male

guard and a female inmate. . . . The confinement setting is a

tinderbox for sexual abuse.

J.K.J., 960 F.3d at 381-82.

The Defendants also note that in December 2016, after the

third-party inmate told Sexton that MacLeod had been engaging in

sex acts with the Plaintiff for several months, Sexton spoke to Plaintiff

and asked her if there was anything she needed to talk to him about.

See d/e 156-1, at 24. The Plaintiff responded that she had no issues.

Id. The Plaintiff did not inform Sexton about MacLeod’s

inappropriate actions until August 4, 2017. Id. The Defendants

contend that Plaintiff’s own conduct thwarted any effort by Sexton to

terminate MacLeod’s sexual abuse of Plaintiff until August 2017. Id.

at 25.

However, there is at least a factual dispute as to whether Burke

and Sexton should have taken further action upon learning of the

abuse in December 2016, notwithstanding the Plaintiff’s statement

that she had nothing to discuss. This is particularly true when the

power disparity noted in J.K.J. between a male correctional employee

and female inmate is considered. The Plaintiff states that she did not

simply “refuse” to report MacLeod to Sexton. See d/e 162, at 151. It

is undisputed that MacLeod threatened the Plaintiff that she would

be punished and placed into segregation for a year if she told anyone

about the abuse. See d/e 182-1, at 55. MacLeod also told the

Plaintiff that he was protected from discovery and discipline because

of his relationship with Sexton, who was the head of investigations

at Logan. Id. The Plaintiff had no reason to doubt MacLeod’s

representation given the ease with which MacLeod had gained access

to Plaintiff and was able to sexually abuse her. Id. When asked why

she did not report the sexual abuse right away, the Plaintiff

responded: “I was scared. Like he’s in charge of me, he is in power

over me.” See d/e 163-1, at 42. The Plaintiff also feared retaliation

for reporting MacLeod’s sexual abuse by someone coming after her

while she was in prison. See d/e 182-1, at 56. Based on the

foregoing, there is a factual issue concerning whether Burke and

Sexton had a duty to further investigate the allegations against

MacLeod or at least restrict MacLeod’s access to the Plaintiff and

other inmates after learning of the abuse. For these reasons, the

Court finds that there is a genuine issue of material fact regarding

whether Burke and Sexton were deliberately indifferent which caused

the Plaintiff’s harm.

(2) Other Defendants

Defendants claim that most individual Defendants are entitled

to summary judgment because those individuals had no personal

involvement with the Plaintiff’s injury. Certain Defendants—

Atchison, Funk, Keane, and Zavala—never worked at Logan. See d/e

156-1, at 22. Defendants Brannon, Charron, Eddy, Gibbons, Locke,

Pasley, and Roberson worked at Logan at times other than when

MacLeod’s misconduct occurred. Id. The Defendants allege Reavis

and Willis were investigators at Logan who were not authorized to

investigate allegations of sexual staff on inmate abuse or harassment.

Id. at 22-23. Defendant Klassen was an administrator responsible

for the computer network and telephones. Id. at 23. Defendant

Pollock was the warden’s secretary. Id. The Defendants contend

these individual Defendants are entitled to summary judgment

because the Plaintiff is unable to show that those Defendants were

personally involved in any constitutional deprivation.

The Plaintiff responds by claiming these Defendants had the

responsibility to prevent sexual assaults at Logan. Defendant

Atchison was the IDOC Director of Operations at the time MacLeod

was sexually abusing the Plaintiff. See d/e 162, at 152. In that role,

Atchison was responsible for ensuring the safety of women. Id. That

type of general allegation is not enough for liability to attach. The

Plaintiff points to no evidence which suggests that Atchison was

aware of MacLeod’s abuse of Plaintiff. Absent some indication that

Atchison “acquiesced in some demonstrable way in the alleged

constitutional violation,” see Gonzalez, 40 F.4th at 828, Atchison is

entitled to summary judgment on Plaintiff’s deliberate indifference

claims.

The Plaintiff notes that Defendants Pasley, Funk, Keane, and

Zavala were IDOC PREA coordinators before and during MacLeod’s

abuse of Plaintiff, and in that role those Defendants were responsible

for (a) implementing Logan’s “zero tolerance” policy, (b) training IDOC

staff, and (c) ensuring prisoners are screened for sexual assault risk.

See d/e 162, at 152. The Logan Warden and Logan PREA compliance

managers reported to the IDOC PREA coordinator. Id. None of those

allegations are probative of whether the PREA coordinators

“acquiesced in some demonstrable way” in MacLeod’s sexual abuse

of Plaintiff.

The Plaintiff notes that Defendants Brannon, Roberson, and

Locke were the wardens of Logan before MacLeod’s sexual abuse of

the Plaintiff. See d/e 162, at 152. In that role, Brannon, Roberson,

and Locke were responsible for, among other things, (a) implementing

Logan’s “zero tolerance” policy, (b) training Logan staff, (c) ensuring

suspected abuse was reported, (d) overseeing investigations, (e)

disciplining offending staff, and (f) implementing any necessary policy

changes. Id. Because Defendants Brannon, Roberson, and Locke

were wardens prior to MacLeod’s sexual abuse of Plaintiff, there is no

indication these Defendants “acquiesced in some demonstrable way

in the alleged constitutional violation.”

The Plaintiff notes that Defendants Mibbs, Eddy, Meaker,

Pollock, Klassen, Johnson, Browne, and Charron were Logan PREA

compliance managers before and during MacLeod’s abuse of Plaintiff.

See d/e 162, at 152. In that role, Defendants Mibbs, Eddy, Meaker,

Pollock, Klassen, Johnson, Browne, and Charron were responsible

for (a) developing and maintaining a program for the evaluation of

victims and predators of sexual abuse or harassment; (b) training

Logan staff; (c) screening prisoners for potential vulnerability to

sexual abuse; (d) identifying any necessary policy changes; (e)

ensuring Logan complied with the “zero tolerance” policy; and (f)

developing, planning, and overseeing efforts to address the problem

of custodial sexual assault at Logan and for ensuring compliance

with PREA regulations and standards. Id. None of those allegations

are probative of whether the PREA compliance managers “acquiesced

in some demonstrable way” in MacLeod’s sexual abuse of Plaintiff.

The Plaintiff notes that Defendants Browne, Sexton, Johnson,

Meaker, Blanco, Klassen, Mibbs, Willis, Reavis, Pasley, and Gibbons

were Logan PREA “incident review team” members before and during

MacLeod’s abuse of Plaintiff. See d/e 162, at 152. In that role, these

Defendants were responsible for reviewing investigations into sexual

abuse at Logan, for evaluating and reporting on those incidents, and

for recommending policy changes to address the problem of sexual

assault at the facility. Id. Absent some evidence that these

Defendants were aware of Macleod’s sexual abuse of the Plaintiff, the

allegations are not probative of whether the incident review team

members “acquiesced in some demonstrable way” in MacLeod’s

sexual abuse of Plaintiff.

The Plaintiff contends that most of these Defendants were on

notice of the threat posed by MacLeod, and all were on notice of the

obvious risk of staff-on-inmate abuse at Logan. See d/e 162, at 152-

53. The Plaintiff acknowledges that certain Defendants—Brannon,

Roberson, Locke, Keane, Zavala, Browne, Charron, and Gibbons—

were not on notice of MacLeod’s abuse of Plaintiff. Id. at 153 n.5.

However, that does not mean those Defendants were not otherwise

on notice of an obvious risk of staff-on-inmate sexual assault at

Logan. Id. The Plaintiff alleges the Defendants turned a blind eye to

those risks and did not take reasonable steps to protect Logan

prisoners. Id. at 153. The Plaintiff contends there are factual

disputes as to whether (1) Defendants were on notice that MacLeod

was a sexual predator; and/or (2) there was an obvious risk of staff-

on-inmate sexual abuse at Logan. Id.

(i) Notice of MacLeod as a Likely Sexual Predator

The Plaintiff first suggests that a reasonable jury might not

believe that Defendants Burke and Sexton kept the information they

learned in December 2016 about MacLeod’s sexual abuse of Plaintiff

to themselves. Id. According to the Plaintiffs, Defendants Burke and

Sexton might have told other Defendants about MacLeod’s abuse.

Absent some evidence that actually occurred, however, the Plaintiffs’

claim is speculative and not enough to create a factual dispute on a

summary judgment motion. See Harper, 687 F.3d at 306.

The Plaintiff further contends that MacLeod was a known

problem at Logan. See d/e 162, at 153. MacLeod was aggressive

and insubordinate with his supervisor and sexually harassed some

of his female colleagues. Id. Those are factors that are sometimes

demonstrated by sexual predators according to IDOC training

materials, which are received by all IDOC employees. Id. The Plaintiff

alleges there were rumors about the frequency with which prisoners

would visit MacLeod in the vocational building. Id. MacLeod even

sexually abused Doe while other staff were present in the office with

his desk turned sideways to avoid detection. Id. at 153-54. ISP Agent

Monica Strandberg testified, “Everybody kn[ew] that MacLeod [was]

having sex at prison.” See d/e 164-2, at 178. Strandberg goes on to

talk about the rumors and speculation and the culture in prison to

keep quiet among prison employees and inmates. Id. When

Strandberg told MacLeod’s supervisor, Sherrin Fitzer, that MacLeod

was alleged to have had sex with inmates in her office, Fitzer

responded, “I don’t doubt it. I’ve heard rumors. . . . I’m sure it

happened.” Id. at 190. Strandberg noted that Fitzer further stated

that, unless an inmate told her about the abuse, it was all just

hearsay and rumors. Id. However, a plaintiff cannot defeat summary

judgment by “asking a court to make inferences based on . . .

speculations as to the defendant’s state of mind, hunches, intuitions

or rumors.” Kodish v. Oakbrook Terrace Fire Protection Dist., 604

F.3d 490, 507-08 (7th Cir. 2010).

The Plaintiff further alleges that MacLeod was “verbally abusive

and a bully” and a “problematic employee” who “had no respect for

authority.” See d/e 162, at 124-25. Additionally, the Plaintiff asserts

MacLeod was a well-known womanizer who sexually harassed his

female colleagues and, according to Sherrin Fitzer, MacLeod told one

female correctional officer that “any time he walked by her or was

around her he would get an erection.” Id. at 125. Moreover, MacLeod

authored emails to work colleagues that contained sexual innuendos

and stories about sex. Id. at 126. As an example, Fitzer testified that

MacLeod sent out an email to other counselors stating that the

women that another counselor was bringing home from a local bar

“needed to have bags put over their head because they were

unattractive.” Id. MacLeod also emailed a female co-worker with the

subject line “your [sic] beautiful” and made similar comments to the

same co-worker in person at work. Id. MacLeod sent sexually

harassing messages to a female colleague on Facebook. Id. Fitzer

wrote an incident report addressing MacLeod’s unprofessionalism on

the computer system and failure to follow orders, but MacLeod was

never disciplined. Id. Fitzer testified she would have turned the

incident report over to the lieutenant on duty. See d/e 163-10, at

44. The Plaintiff does not indicate whether any Defendant had access

to the incident report.

Monica Strandberg testified that Fitzer was contacted by a

lawyer at Cabrini Green Legal Aid who reported that MacLeod was

sexually abusing inmates at Logan. See d/e 162, at 126. The lawyer

learned this information from the Plaintiff after the Plaintiff reported

the abuse in August 2017 and had been released on parole. See d/e

164-2, at 91.

The Plaintiff further notes that her expert, Brenda Smith,

concluded that Defendants were deliberately indifferent to the risk

that MacLeod posed to Doe. See d/e 162, at 154. However, Smith

does not point to any acts or omissions by Defendants relating to

subjective awareness that MacLeod was a sexual predator prior to

August 2017.

Actual knowledge by prison officials of the risk to the prisoner

is critical. See Farmer, 511 U.S. at 844. More specifically, the

question of what each individual IDOC Defendant knew is the key

inquiry:

[S]howing mere negligence is not enough. Even objective

recklessness—failing to act in the face of an unjustifiably high

risk that is so obvious that it should be known—is insufficient

to make out a claim. Instead, the Supreme Court has

instructed us that a plaintiff must provide evidence that an

official actually knew of and disregarded a substantial risk of

harm. Officials can avoid liability by proving they were unaware

of an obvious risk to inmate health or safety.

Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (citations

omitted). Rumors and speculation do not equate to actual

knowledge. See Ellis v. United Parcel Service, Inc., 523 F.3d 823,

827 (7th Cir. 2008) (noting that rumor and conjecture are not enough

to create a factual dispute about a defendant’s knowledge). The

Plaintiff points to no acts or omissions concerning most Defendants’

knowledge of MacLeod’s sexual abuse of Plaintiff. Even when the

facts are viewed in a light most favorable to the Plaintiff, no

reasonable jury could charge Defendants other than Burke and

Sexton with knowledge of a substantial risk of harm that Plaintiff was

subject to sexual abuse by MacLeod.

(ii) Risk of Staff-on-Inmate Sexual Abuse

The Plaintiff then cites the general risk of sexual assault to

women in custody when supervised by male staff. See d/e 162, at

154. All Defendants were aware of that risk through their IDOC

training. Id. While that general risk is known by all prison

employees, that cannot be enough for liability to attach without an

individual’s actual knowledge of a particular staff member’s

misconduct. See Tesch v. Cnty. of Green Lake, 157 F.3d 465, 476

(7th Cir. 1998) (noting that plaintiff must show defendant had actual

knowledge of harm).

The Plaintiff next claims that, after Logan transitioned from an

all-male to an all-female facility in 2013, the staff who remained were

overwhelmingly white males who were accustomed to supervising

men. Id. Between 2014 and 2017, there were numerous reported

instances of staff-on-inmate sexual abuse. Id. at 156. However, few

of these instances that were investigated by Logan staff were

substantiated. The Plaintiff notes that, prior to 2016, the ISP

investigated numerous incidents of staff-on-inmate assaults at

Logan, and between February 2016 and 2020, ISP investigated

approximately 20 more. Id. at 155 Almost all of those instances were

substantiated. Id. Given that ISP investigations were much more

likely than Logan investigations to lead to substantiated cases of

abuse, the Plaintiff alleges a jury might find that Logan investigators

simply took the staff member’s word over the inmate’s word. Id. at

156-57. Moreover, the sexual assault problem at Logan has led to a

number of civil lawsuits. Id. at 155. However, the Plaintiff presents

no evidence regarding which Defendants, if any, were aware of these

sexual assault investigations or civil lawsuits.

As the Defendants note, the Plaintiff has filed a suit against 20

individuals, not a prison or state agency. “[Section] 1983 does not

establish a system of vicarious liability; a public employee’s liability

is premised on her own knowledge and actions, and therefore

requires evidence that each defendant, through her own actions,

violated the Constitution.” Aguilar v. Gaston-Camara, 861 F.3d 626,

630 (7th Cir. 2017). The Plaintiff simply alleges that Defendants

should have been aware of these instances of abuse because of their

positions at IDOC and/or Logan. The Plaintiff claims that

Defendants’ training, Defendants’ job responsibilities, the recent

male-to-female transition, the failure to swap out or train the legacy

staff members, the fact that reported instances of staff-on-inmate

sexual abuse at Logan were up to 16 times higher than Decatur, and

the fact that ISP was routinely investigating staff at Logan for

criminal prosecution means that Defendants were on notice of the

risk of staff-on-inmate sexual abuse. See d/e 162, at 155-156. The

Plaintiff does not say precisely what any Defendant knew or should

have known about sexual abuse reports or criminal investigations.

Nor does Plaintiff connect these general allegations to specific acts or

omissions by Defendants. Rather, the Plaintiff appears to allege that,

because of the Defendants’ employment or roles at Logan,

Defendants caused, condoned, or turned a blind eye to a substantial

risk of sexual abuse. To the extent that Plaintiff suggests that certain

Defendants are liable because of their status as PREA coordinators,

PREA compliance managers, or PREA incident review team members,

Plaintiff cites no support for that assertion. Moreover, an

independent auditor found Logan compliant on all PREA-

requirements in 2016 and 2019. While the Plaintiff questions the

accuracy of these audits, the Plaintiff provides no evidence that any

Defendant had reason to question the audits.

The Plaintiff next cites the expert testimony of Brenda Smith

that the risk of staff-on-inmate sexual abuse at Logan was pervasive

and well-known, and Defendants were deliberately indifferent to that

risk. See d/e 162, at 156. According to Smith, IDOC and Logan staff

knew or should have known of the pervasive risk of staff-on-inmate

sexual assault at Logan, but failed to address that risk through

appropriate supervision, surveillance, investigation, and discipline.

Id. at 146. Smith also stated that the practices and culture at Logan

facilitated MacLeod’s assault of Plaintiff. Id. Moreover, Smith states

that IDOC and Logan staff knew that MacLeod had a history of

sexually inappropriate behavior, and therefore allowing MacLeod

unfettered access to Plaintiff was contrary to the best correctional

practices and common sense. Id.

Although Smith’s opinion supports the Plaintiff’s allegations of

a generalized risk of harm, Smith does not point to any specific acts

or omissions by the individual Defendants. Rather, Smith states that

the individual Defendants had a responsibility to take action,

institute policies, enforce policies, and protect individuals in custody

from sexual abuse. See d/e 171-12, at 38. These are general

principles for prison officials that would appear to apply in any prison

setting. For individual liability to attach under section 1983, the

Plaintiff must establish there was personal involvement by the

Defendants. See Gonzalez, 40 F.4th at 828. Smith does not identify

any specific acts or omissions by Defendants Atchison, Blanco,

Browne, Charron, Eddy, Gibbons, Johnson, Keane, Klassen, Locke,

Meaker, Mibbs, Pollock, Roberson, Willis, or Zavala. See d/e 171-12,

at 13-40. When asked if she was aware that section 1983 claims

require personal involvement, Smith responded:

I am not – I guess what I would say is that institutions are – you

know, agencies are held liable. And to the extent that the

Defendants were representing the agency, the Illinois

Department of Corrections or its agents, then that would be

what I am – my opinion at this point.

See d/e 171-12, at 157-58. Smith’s opinion appears to be that

Defendants must have known about the risk of sexual abuse because

of Defendants’ positions at Logan or IDOC. However, that suggests

Smith is claiming Defendants were aware of a generalized risk of

harm rather than personal involvement on the part of Defendants.

The individual Defendants cannot be held personally liable under

section 1983 for a collective or cultural failure by Logan or IDOC. See

Soto v. White, Case No. 19-3135, 2022 WL 2115299, at *3 (7th Cir.

June 13, 2022) (noting that collective failures of care are not enough

to prevail against a defendant on a deliberate indifference claim).

The Plaintiff next alleges that each Defendant was part and

parcel of a system to prevent, monitor, and respond to sexual abuse

at Logan. See d/e 162, at 157. Moreover, each Defendant was

supposed to play an important role in implementing Logan’s “zero

tolerance” policy. Id. The Plaintiff further asserts one of Defendants’

most egregious shortcomings was the dual failure of (1) failing to

install working cameras in sexual abuse hotspots; and (2)

simultaneously maintaining an “unusual” policy under which the

male corrections staff could summon female prisoners to

unmonitored areas at the staff’s leisure. Id. The Plaintiff does not

discuss the individual Defendants’ roles related to these

shortcomings. The Plaintiff further states that, when Logan finally

obtained additional cameras to address the sexual abuse problem,

Logan tasked Milo Ziemer with installing the cameras. Id. at 158.

Ziemer was one of the staff members who was sexually abusing

inmates. Id. However, the Plaintiff does not say which, if any, of the

Defendants assigned Ziemer with installing the cameras or whether

that individual or individuals knew Ziemer was abusing inmates.

The Plaintiff makes a number of claims concerning the failure

of PREA coordinators, PREA compliance managers, or members of

the PREA incident review team to implement or follow practices

required by Logan policies or recommend any policy changes. See

d/e 162, at 158-59. However, “PREA is not a constitutional

standard.” J.K.J., 960 F.3d at 384 (analyzing Monell claim against

municipality). Deviations from internal policies do not amount to

constitutional violations. See Estate of Biegert v. Molitor, 968 F.3d

693, 698-99 (7th Cir. 2020). “As we have previously stated, § 1983

‘protects plaintiffs from constitutional violations, not violations of

state laws or, in this case, departmental regulations and police

practices.’” Id. at 699 (7th Cir. 2020) (quoting Scott v. Edinburg, 346

F.3d 752, 760 (7th Cir. 2003)); see also Thompson v. City of Chicago,

472 F.3d 444, 454 (7th Cir. 2004) (noting that a violation of internal

policies or even a state law “is completely immaterial as to the

question of whether a violation of the federal constitution has been

established”).

At most, the Plaintiff has shown that Defendants other than

Burke and Sexton were aware of the general risk of sexual assault to

women in custody who are supervised by male staff. The Plaintiff has

not presented evidence that any of those Defendants were aware that

MacLeod was sexually abusing Plaintiff or other inmates at Logan.

The record is devoid of evidence that any of the Defendants had

actual knowledge and disregarded a substantial risk of harm to the

Plaintiff. Therefore, these Defendants are entitled to summary

judgment on Plaintiff’s deliberate indifference claims.

C. Qualified immunity

Defendants allege that, assuming there is a factual dispute

concerning whether Defendants violated the Plaintiff’s constitutional

rights, the Defendants are shielded from liability based on the

doctrine of qualified immunity. See d/e 156-1, at 28. Because the

Court has found there is a genuine issue of material fact regarding

whether Defendants Burke and Sexton violated the Plaintiff’s

constitutional rights, the Court will focus the qualified immunity

inquiry on those Defendants.

Qualified immunity protects public officials from liability for

money damages if “their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known.” Van den Bosch v. Raemisch, 658 F.3d 778, 786 (7th

Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). To

defeat a qualified immunity defense by a state official, a plaintiff must

show “(1) that the official violated a statutory or constitutional right;

and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir.

2017) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Courts

are permitted to analyze the “clearly established” prong without first

considering whether the alleged constitutional right was violated. Id.

at 351.

Certainly, a prison inmate has a clearly established right to be

free from sexual abuse. “When the State takes a person into its

custody and holds her there against her will, the Constitution

imposes upon it a corresponding duty to assume some responsibility

for her safety and general well-being.” J.K.J., 960 F.3d at 381

(quoting DeShaney v. Winnebago County Dep’t of Soc. Servs., 489

U.S. 189, 199-200 (1989)). “Just as the healthcare contractor in

Woodward shouldered a constitutional duty to protect inmates from

suicide, Polk County bore the constitutional responsibility to protect

its inmates from sexual assault.” Id. The Seventh Circuit noted this

requirement is derived from the Eighth Amendment because prison

assaults are not part of the penalty that inmates pay for their law

violations. See id. While the county’s liability is at issue in J.K.J., a

prison official would have the same responsibility to protect inmates

from sexual assault. See Locke v. Haessig, 788 F.3d 662, 667 (7th

Cir. 2015) (“It was also clear that a supervisor could be held liable for

a subordinate’s sexual harassment if the plaintiff could show . . . a

conscious failure to protect the plaintiff from abusive conditions

created by subordinates amounting to intentional discrimination.”).

To defeat the Defendants’ qualified immunity defense, the

Plaintiff has the burden of demonstrating that the alleged violation of

her Eighth Amendment right was “clearly established.” Id. “To be

clearly established at the time of the challenged conduct, the right’s

contours must be sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Id.

The key inquiry involves whether the official acted reasonably based

on the particular circumstances he or she faced. Id. The Court

previously found that there was a factual dispute as to whether

Defendants Burke and Sexton actually knew of and disregarded a

substantial risk of harm to the Plaintiff. The issue in considering

whether qualified immunity protects the Defendants concerns

whether Defendants Burke and Sexton would have understood that

their response upon learning of the sexual abuse violated the

Plaintiff’s Eighth Amendment rights.

While a plaintiff need not point to an identical case that finds

the alleged violation unlawful, the statutory or constitutional

question must be beyond debate due to controlling Supreme Court

or Seventh Circuit precedent. Id. In the absence of controlling

authority or persuasive authority that is based on a clear trend in the

caselaw, a plaintiff can show that a law was clearly established by

proving that defendant’s conduct was “so egregious and

unreasonable that . . . no reasonable official could have thought he

was acting lawfully.” Id. (quoting Abbott v. Sangamon County,

Illinois, 705 F.3d 706, 724 (7th Cir. 2013)). In such instances, a

plaintiff may not be required to present the Court with an analogous

case. See Reed v. Palmer, 906 F.3d 540, 547 (7th Cir. 2018).

In determining if a law was clearly established, the Court must

ensure that the right allegedly violated is defined at the appropriate

level of specificity. Id. at 351. A court should not define “clearly

established law at a high level of generality.” Id. (quoting al-Kidd,

563 U.S. at 742). The crucial question is “whether the violative

nature of particular conduct is clearly established.” Id. (quoting

Mullenix v. Luna, 577 U.S. 7, 12 (2015)). “[T]he clearly established

law must be “particularized” to the facts of the case.” Id. (quoting

White v. Pauley, 137 S. Ct. 548, 552 (2017)).

As the Court previously noted, Defendant Burke approved an

investigation whereby Sexton conducted surveillance on three

separate occasions during which Sexton attempted to catch MacLeod

in the act of engaging in sexual misconduct with the Plaintiff. See

d/e 182-1, at 60. When these three attempts at catching MacLeod

in the act proved unsuccessful, Sexton discontinued his surveillance

efforts in January 2017. Id. at 61. The Plaintiff was sexually

assaulted by MacLeod again the following month. Id. Given these

circumstances, the Court previously determined that there are

factual issues concerning whether Burke and Sexton failed to take

appropriate action upon first learning of MacLeod’s sexual abuse of

Plaintiff, thereby allowing the abuse to continue.

There does not appear to be any controlling authority which

holds that Defendants’ actions were unlawful. The Court thus will

consider whether Burke’s and Sexton’s conduct was “so egregious

and unreasonable” that it violates clearly established law. The Court

recognizes the advantages of attempting to catch MacLeod in the act

of engaging in sexual misconduct. If those efforts were successful, it

would have been easier for IDOC to rid itself of a rogue employee. It

also would have provided strong evidence in a potential criminal case

against MacLeod. However, the surveillance efforts failed and the

sexual abuse continued for several months. Burke’s and Sexton’s

failure to take any additional measures for several months—like

questioning MacLeod or restricting MacLeod’s access to Plaintiff--

made it very likely that the sexual abuse would continue, which did

in fact occur. This is the rare case in which a jury could find that

Defendants’ failure to take additional measures was “so egregious

and unreasonable” that Plaintiff’s Eighth Amendment rights were

violated. Therefore, Defendants Burke and Sexton are not entitled to

qualified immunity as to Count I.

D. First Amendment retaliation claim

In Count II, the Plaintiff alleges a First Amendment retaliation

claim under section 1983. See d/e 37, at 13. The Plaintiff claims

that Defendants Sexton and Burke retaliated against her for engaging

in First Amendment activity by reporting MacLeod’s misconduct. Id.

The Plaintiff alleges that the transfer would make family visits more

difficult, and she would be denied the ability to complete certain

programs that were instrumental in securing her early release. See

d/e 162, at 163.

To prevail on a First Amendment retaliation claim, a plaintiff

must show (1) she engaged in First Amendment activity; (2) she

“suffered a deprivation that would likely deter First Amendment

activity in the future;” and (3) causation—“specifically, the First

Amendment activity was at least a motivating factor in the

Defendants’ decision to take the retaliatory action.” FKFJ, Inv. v.

Village of Worth, 11 F.4th 574, 585 (7th Cir. 2021). A prison transfer

can be retaliatory if it “deter[s] a person of ordinary firmness from

engaging in protected activity.” Holleman v. Zatecky, 951 F.3d 873,

881 (7th Cir. 2020). “[A] transfer initiated to punish a prisoner for

engaging in protected activity would satisfy the causation element of

retaliation, but a transfer initiated as a rational, justifiable response

to the substance of the prisoner’s complaint would not.” Id. at 879.

The court in Holleman further explained:

Establishing the causation element of retaliation requires a

showing that the fact of the plaintiff’s engagement in protected

activity was a motivating factor of the alleged adverse action,

not merely that the substance of the plaintiff’s complaint

motivated a response the plaintiff did not particularly like. To

hold otherwise would absurdly result in requiring prison

officials to respond to every grievance by enacting the prisoner’s

preferred solution, rather than allowing officials to exercise their

own judgment. Holleman must show a reasonable factfinder

could conclude his transfer was motivated by the fact that he

engaged in protected activity, and not merely motivated by the

substance of his complaint.

Id. In deciding Holleman, the Seventh Circuit was mindful of the

Supreme Court’s “express disapproval of excessive judicial

involvement in day-to-day prison management.” Id. at 880 (citing

Sandlin, 515 U.S. 472, 482 (1995)). Therefore, courts owe “deference

to prison officials’ decisions when responding to grievances and

maintaining order in a volatile environment, and the justifications

offered for those decisions.” Id. (citing Bell v. Wolfish, 441 U.S. 520,

547 (1979)).

The Plaintiff alleges that Logan had a policy to automatically

transfer victims of staff-on-inmate sexual assault to Decatur

Correctional Center. See d/e 162, at 119. Several Defendants were

aware of the policy. Id. Moreover, Logan’s warden is involved in the

process of transferring sexual assault victims out of Logan. Id. at

120. The Defendants cite the testimony of non-party assistant

warden Angel Wilson, who stated she made the decision to transfer

Plaintiff to Decatur. See d/e 159-1, at 152-53. Defendant Marcia

Mibbs also testified she was directed by Wilson to do an

administrative transfer of Plaintiff from Logan to Decatur. See d/e

159-16, at 123, 133.

Even assuming Burke, Sexton, and/or other Defendants had a

role in transferring the Plaintiff from Logan to Decatur, the transfer

was pursuant to a policy that applied in the case of any inmate who

was the victim when there was a substantiated allegation of staff-on-

inmate sexual abuse. Undoubtedly, there are legitimate penological

reasons for such a policy. Angel Wilson testified the policy exists to

protect the inmate from the abuser, other employees, or other

inmates. See d/e 164-4, at 170-74. While it is unfortunate that

Plaintiff suffered negative consequences from the transfer to Decatur,

a transfer that was pursuant to policy cannot be said to have been

designed to punish Plaintiff or other inmates for engaging in

protected activity. Rather, it is an example of a transfer that is “a

rational, justifiable response” to a sexual abuse complaint that would

not satisfy the causation requirement of Holleman, 951 F.3d at 879.

It is also a case in which “the substance of the plaintiff’s complaint

motivated a response the plaintiff did not particularly like,” which is

not enough to establish the causation element of a retaliation claim.

Because the Plaintiff cannot satisfy the causation element, the

Defendants are entitled to summary judgment on the Plaintiff’s First

Amendment retaliation claim.

IV. CONCLUSION

Because there are genuine issues of material fact as to the

Eighth Amendment claims asserted against Defendants Burke and

Sexton, the Court will deny the Defendants’ motion for summary

judgment as to those claims. The Court finds that Defendants are

entitled to summary judgment in all other respects.

The Defendants’ Motion for Summary Judgment [d/e 156] is

GRANTED IN PART and DENIED IN PART.

The Motion for Summary Judgment is DENIED on Count I as to

Defendants Warden Margaret Burke and Todd Sexton.

The Motion for Summary Judgment is GRANTED on Count I as

to the other Defendants except for Richard MacLeod.

The Motion for Summary Judgment is GRANTED on Count II.

The Clerk will terminate as parties Mike Atchison, Angela Locke,

Kess Roberson, Christine Brannon, Patrick Keane, Felipe Zavala,

Michael Funk, Alan Pasley, Clara Charron, Shari Klassen, Jennifer

Meaker, Marcia Mibbs, Heidi Browne, Lisa Johnson, Debra Pollock,

Melinda Eddy, Grant Willis, Charles Gibbons, Bobbie LeDuc, and

Brent Blanco.

ENTER: March 29, 2023

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE