# Silva v. Read

> District Court, N.D. Illinois · October 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10145485

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** October 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10145485

## How later opinions describe it (automated extraction)

- applying Kingsley v. Hendrickson, 576 U.S. 389 (2015), to Fourteenth Amendment failure-to-protect claims brought by pretrial detainees

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

Roberto Silva (#99318), )
)
Plaintiff, )
) Case No. 20 C 50007
v. )
) Hon. Iain D. Johnston
Sheriff Read, et al. )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

In this pro se civil rights lawsuit brought pursuant to 42 U.S.C. § 1983, Plaintiff Roberto
Silva alleges DeKalb County Jail Deputy James Read failed to protect him from an attack by
another inmate. Before the Court is Defendants’ motion for summary judgment, to which Plaintiff
has responded. For the reasons stated below, Defendants’ motion is granted.
I. Summary Judgement Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a court “shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Celotex Corp v. Catrett, 477 U.S.
317, 322 (1986). A genuine issue of material fact is not demonstrated by the mere existence of
“some alleged factual dispute between the parties,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986), or by “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material facts exists
when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
1
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at
248). A fact is material if it might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d
506, 508 (7th Cir. 1992).
The moving party bears the initial burden of demonstrating the lack of any genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the party moving for summary judgment
demonstrates the absence of a disputed issue of material fact, “the burden shifts to the non-moving
party to provide evidence of specific facts creating a genuine dispute.” Carrol v. Lynch, 698 F.3d
561, 564 (7th Cir. 2012). The non-movant must go beyond the pleadings and “set forth specific
facts showing that there is a genuine issue for trial.” Hannemann v. Southern Door Cty Sch. Dist.,
673 F.3d 746, 751 (7th Cir. 2012). “Thus, ‘summary judgment must be entered “against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”’ Cooper v. Lane, 969
F.2d 368, 371 (7th Cir. 1992) (quoting Celotex, 477 U.S. at 322 (1986)). When evaluating motions
for summary judgment, the Court views the facts in the light most favorable to, and draws all

reasonable inferences in favor of, the nonmoving party, however, “those facts must be supported
by sufficient record evidence.” Zylstra v. DRV, LLC, 8 F.4th 597, 601 (7th Cir. 2021).
II. Northern District of Illinois Local Rule 56.1
Local Rule 56.1 governs the procedures for filing and responding to motions for summary
judgment in this Court. The Court explained the rule in detail during the pre-filing conference.
(Dkt. 77.) The Court further instructed Plaintiff regarding the local rule’s requirements in a
subsequent order. (Dkt. 87.) The rule is intended “to aid the district court, ‘which does not have
the advantage of the parties’ familiarity with the record and often cannot afford to spend the time

2
combing the record to locate the relevant information,’ in determining whether a trial is necessary.”
Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted.) Local Rule 56.1(a)
requires the moving party to provide “a statement of material facts” as to which the moving party
contends there is no genuine issue for trial. LR 56.1(a); FED. R. CIV. P. 56(1).

The opposing party must then “file a response to each numbered paragraph in the moving
party’s statement” of fact. Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005)
(internal quotation marks omitted); LR 56.1(b), (e). In the case of any disagreement, the opposing
party must reference “specific evidentiary material that controverts the fact and must concisely
explain how the cited material controverts the asserted fact.” LR 56.1(e)(3). “[M]ere disagreement
with the movant’s asserted facts is inadequate if made without reference to specific supporting
material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). “All material facts set forth in the
statement required of the moving party will be deemed to be admitted unless controverted by the
statement of the opposing party.” Id. The nonmoving party may also present a separate statement
of additional facts that require the denial of summary judgment that consists of “concise numbered

paragraphs” “supported by citation to the specific evidentiary material, including the specific page
number, that supports it.” LR 56.1(b)(3), (d).
In this case, Defendants filed a LR 56.1 statement of material facts and memorandum of
law with their motion for summary judgment. (Dkts. 81, 80.) Consistent with the local rules,
Defendants also provided Plaintiff with a LR 56.2 Notice, which explains what LR 56.1 requires
of a litigant opposing summary judgment. (Dkt. 82.)
For his part, Plaintiff submitted a response to Defendants’ LR 56.1 statement of facts along
with exhibits in support of his response. (Dkts. 88, 88-2.) Plaintiff also submitted a document titled

3
a memorandum of law, which included a section detailing additional facts Plaintiff contends are
relevant to this case. (See Dkt. 86.) The Court instructed Defendants to consider this fact section
and accompanying exhibits as Plaintiff’s LR 56.1(b)(3) statement of additional facts (Dkt. 87.)
Defendants argue Plaintiff’s responses to their LR 56.1 statement of facts and his statement

of additional facts should be disregarded because Plaintiff failed to comply with LR 56.1’s
requirements. (Dkt. 90, pgs. 1-5.) The Court agrees. Even generously construed, Plaintiff’s
submissions cannot be deemed an appropriate response to Defendants’ statements of material facts.
Although courts construe pro se pleadings liberally, see Thomas v. Williams, 822 F.3d 378,
385 (7th Cir. 2016), a plaintiff’s pro se status does not excuse him from complying with federal
and local procedural rules. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have
never suggested that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel.”); Collins v. Illinois, 554 F.3d 693, 697
(7th Cir. 2009) (“[E]ven pro se litigants must follow procedural rules.”). Local Rule 56.1 “provides
the only acceptable means of disputing the other party’s facts and of presenting additional facts to

the district court.” Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir. 1995); see also
Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005).
Here, nearly every response to Defendants’ LR 56.1 statements of fact is defective. Almost
all Plaintiff’s responses contain lengthy, argumentative digressions about additional nonresponsive
facts. These defects appear even in responses where Plaintiff admits the fact in question. Many of
Plaintiff’s responses are also unsupported by his citation to the record or fail to identify the specific
portion of the exhibit supporting his dispute with Defendants’ fact. For example, Plaintiff at times
cites to more than ten, and sometimes twenty, pages of his deposition when disputing several of

4
Defendants’ statements of fact. (See, e.g., Dkt. 88, ¶¶ 4, 6, 7.)
It is not the Court’s responsibility to search through evidence to support a party’s argument,
Bunn v. FDIC, 908 F.3d 290, 297 (7th Cir. 2018) (citations and quotation marks omitted) (“As has
become axiomatic in our Circuit, Judges are not like pigs, hunting for truffles buried in the

record”), and a court need not consider argumentative responses and diatribes in a response to an
LR 56.1 statement of facts. Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 644 (7th Cir. 2008).
Moreover, LR 56.1 specifically instructs that a “response may not set forth any new facts, meaning
facts that are not fairly responsive to the asserted fact to which the response is made.” LR
56.1(e)(2).
Accordingly, Plaintiff’s responses fail entirely to satisfy the requirements of LR 56.1.
Therefore, because Plaintiff did not properly respond to Defendants’ LR 56.1 statement of facts,
the Court accepts Defendants’ “uncontroverted version of the facts to the extent that it is supported
by evidence in the record.” Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012);
Hinterberger v. City of Indianapolis, 966 F.3d 523, 529 (7th Cir. 2020) (Where a LR 56.1 response

is “so full of argument, evasion, and improper denials that it defeat[s] the whole point of [the
summary judgment rule]—to identify just what facts are actually in dispute . . . [s]triking the entire
statement (rather than only the offending material) [is] not too harsh because requiring the district
court to sift through improper denials and legal argument in search of a genuinely disputed fact
would defeat the purpose of the rule.”); see also Midwest Imports, Ltd., 71 F.3d at 1317.
Next, as Defendants’ point out, most of Plaintiff’s statements of additional fact are
similarly problematic. Many of the statements are unaccompanied by any citation to the record at

5
all, or, where Plaintiff has provided a citation, are unsupported by the cited material.1 Plaintiff
also devotes a significant number of his statements of fact to impermissible legal argument,
unsupported speculation about Defendant Read’s motives, and disputes about discovery matters.
Again, LR 56.1 requires “each asserted fact” to be “supported by citation to the specific evidentiary

material, including the specific page number, that supports it. The court may disregard any asserted
fact that is not supported with such a citation.” LR 56.1(d)(2). The rule also explains that
statements of fact “should not contain legal argument.” LR 56.1(d)(4). Plaintiff’s statement of
additional facts clearly runs afoul of these rules. Therefore, the Court has considered Plaintiff’s
statements of additional facts only to the extent they are supported by the record or where Plaintiff
could properly testify about the matters asserted. See Sistrunk v. Khan, 931 F. Supp. 2d 849, 854
(N.D. Ill. 2013); see also FED. R. EVID. 602.
With these guidelines in mind, the Court turns to the facts of this case, stating those facts
as favorably to Plaintiffs as the record and LR 56.1 permit. See Hanners v. Trent, 674 F.3d 683,
691 (7th Cir. 2012).

III. Relevant Facts
Except where noted, the following facts are undisputed. During the relevant time period—
January 6 and 7, 2019—Plaintiff was a pretrial detainee at the DeKalb County Jail and Defendant
Deputy James Read was a correctional officer at the jail. (Dkt. 81, Defendants’ Statement of
Material Facts (“DSOF”), ¶¶ 1, 2.) At that time, Plaintiff was housed in cellblock N. (Id., ¶ 3.)

1 Plaintiff compounds these problems by confusingly labeling his exhibits. (See Dkt. 86-2.) Plaintiff generally refers
to his exhibits by the bates stamp number that appears on the pages, however, the pages are not in sequential order
and are mixed in with exhibits to which Plaintiff has assigned an entirely different numbering system. The Court has
reviewed all the exhibits Plaintiff submitted and has done its best, largely successfully, to locate the exhibits identified
in the response and statement of additional facts.
6
In early January 2019, detainee Brandon Mills was moved into cellblock N. (Dkt. 81-1,
Plaintiff’s Deposition (“Pl. Dep.”), pg. 33:1-6.) On January 6, 2019, Plaintiff observed Mills
pacing in the dayroom of cellblock N, kicking a window, yelling at officers, and turning the shower
on and off repeatedly. (Pl. Dep., pgs. 45:24, 46:1-9; DSOF, ¶ 8.) Mills, however, had not made

any threats against Plaintiff or any other inmate. (DSOF, ¶ 7.)
Around 6:00 p.m., Plaintiff pounded on the glass window between the dayroom and the
control room, where Officer Read was located. (DSOF, ¶ 6; Dkt. 86, Plaintiff’s Statement of Facts
(“PSOF”), ¶ 3.) Read entered the dayroom. (DSOF, ¶ 8.) Plaintiff described Mills’ behavior to
Read and stated that he did not feel comfortable being around Mills because of the way he was
acting. (Id.) Read told Plaintiff he would talk to Mills. (DSOF, ¶ 13; Pl. Dep., pg. 52:14-24.)
Read asked Mills what was wrong and offered to relocate Mills to a different cellblock.
(DSOF, ¶ 14, 18; PSOF, ¶ 5.) Mills did not respond, except to state that he would fight Plaintiff if
Plaintiff wanted to fight. (Id., ¶¶ 14, 15.) At his September 11, 2020 deposition, Plaintiff testified
that he did not know why Mills made this statement because there had been no prior conflict

between Plaintiff and Mills. (Id., ¶ 16.)
The parties disagree as to what was said next. Plaintiff testified that Read and Mills did not
discuss any other matters. (Pl. Dep., pgs. 58:20-22, 60:3-11.) Read, however, testified that Mills
stated he was on edge because his medications were not right, he was waiting for Elgin Mental
Health personnel to pick him up, and the shower was too cold. (DSOF, ¶ 20.) According to Read,
he discussed these issues with Mills and asked Mills to stop pacing, take a shower, and return to
his cell, which Mills agreed to do. (Id., ¶ 21, 22.)
After Read finished speaking to Mills, Plaintiff again told Read that he did not feel

7
comfortable being around Mills, felt his life was threatened, and that if Read did not relocate Mills,
Plaintiff wanted to be moved instead. (Id., ¶ 23; PSOF, ¶ 14.) Read did not respond to Plaintiff’s
relocation request and returned to the control room. (DSOF, ¶ 24; Pl. Dep., pg. 64:8-9.)
Following this conversation, Read did not relocate either Mills or Plaintiff. (DSOF, ¶ 29.)

Read testified that he did not move either detainee because he did not believe Plaintiff or Mills had
threatened each other, Mills had calmed down in Read’s presence, and Read felt he had addressed
any issues sufficiently to prevent further problems. (Id.)
After Read left the cellblock, Plaintiff testified that Mills continued to pace and would not
sit still, “like his normal way,” and appeared upset. (Pl. Dep. 65:5-11, 66:18-20.) Mills, however,
made no threatening statements towards Plaintiff or any other inmate and did not make any
physical gestures indicating he wished to fight Plaintiff or another inmate. (DSOF, ¶ 25.) Neither
Plaintiff nor Mills made any other attempt to get Read’s attention and Plaintiff did not speak with
Read again regarding Mills’ behavior for the remainder of Read’s shift. (Id., ¶ 26.)
The next day, January 7, 2019, Plaintiff woke up around 10:00 a.m. and read his Bible and

prayed sitting on his bed in his cell. (DSOF, ¶ 32.) Around 11:00 a.m., Mills opened Plaintiff’s
cell door without warning, entered the cell, and pointed a television remote control at Plaintiff,
miming that it was a gun. (Id., ¶ 33.) Plaintiff stood up and told Mills to leave his cell. (Id., ¶ 34.)
Mills, however, began punching Plaintiff’s face. (Id., ¶ 35.) Plaintiff was able to push Mills out of
his cell and pressed an intercom button to request assistance from jail personnel. (Id., ¶ 36.)
Officers arrived in the dayroom, but by that point the fight was over. (Id., ¶ 39.) Plaintiff suffered
a split lip that required stitches and a broken nose. (Pl. Dep., pg. 95:13-15; 98:1-7.) Defendant
Read was not on duty on January 7, 2019, when the assault occurred. (DSOF, ¶ 40.)

8
At his deposition, Plaintiff testified that, before January 2019, he had been housed in the
same cellblock with Mills once before for two to three months in 2018. (Id., pg. 39:6-12.) Plaintiff
also testified that he observed Mills frequently arguing with other detainees and witnessed Mills
beat another inmate on one occasion. (Id., 36:1-7, 20-24, 37:1-7, 41:12-15.) Plaintiff, however,

testified that the January 2019 incident was the first time he had had any conflict with Mills and
that he and Mills got along “okay” before January 6, 2019. (Pl. Dep., pgs. 38:20-24, 39:1, 44:19-
24, 45:12; DSOF, ¶ 4.) Before the events at issue in this lawsuit, Mills had not made threatening
statements towards Plaintiff or physically fought with Plaintiff, and Plaintiff had never complained
about Mills to any correctional officer. (DSOF, ¶ 5; Pl. Dep., pgs. 38:12-19.)
As for Read, he had never observed any past incidents in which Mills was the aggressor
and he was not personally aware of any propensity Mills might have had for aggression or fighting
with other inmates or officers. (DSOF, ¶ 11.) Read was never required to take any precautions
when interacting with Mills. (Id., ¶ 12.)
Based on these events, Plaintiff filed this lawsuit on January 4, 2020, (Dkt. 1-1), and was

permitted to proceed with his claim that Defendant Read failed to protect him from Mills’ January
7, 2019 assault, with DeKalb County included as indemnitor. (Dkt. 10.)
IV. Analysis
Defendants now move for summary judgment, arguing that judgment in their favor is
warranted because the undisputed material facts demonstrate Read’s decision not to relocate either
Mills or Plaintiff was objectively reasonable under the circumstances. (Dkt. 80, pgs. 4-8.) In the
alternative, Defendants argue they are entitled to qualified immunity. (Id., pgs. 8-11.) Initially, the
Court agrees with Defendants that Plaintiff has not introduced facts from which a reasonable jury

9
could find Read acted unreasonably. But the Court recognizes this is a close decision. So, the Court
has addressed Defendants’ alternative argument that Read is entitled to qualified immunity.
As a pretrial detainee, Plaintiff’s claim that Defendant Read failed to protect him from
Mills’ attack arises under the substantive component of the Fourteenth Amendment’s Due Process

Clause. See Fisher v. Lovejoy, 414 F.3d 659, 661 (7th Cir. 2005). To prevail on a failure to protect
claim, Plaintiff must show that: (1) “[t]he defendant made an intentional decision with respect to
the conditions under which [he] was confined,” (2) “[t]hose conditions put [him] at substantial risk
of suffering serious harm,” (3) the defendant’s conduct was objectively unreasonable (i.e., the
defendant “did not take reasonable available measures to abate that risk, even though a reasonable
officer in the circumstances would have appreciated the high degree of risk involved—making the
consequences of the defendant’s conduct obvious”), and (4) [b]y not taking such measures, the
defendant caused the plaintiff’s injuries.” Castro v. County of Los Angeles, 833 F.3d 1060, 1070
(9th Cir. 2016) (applying Kingsley v. Hendrickson, 576 U.S. 389 (2015), to Fourteenth
Amendment failure-to-protect claims brought by pretrial detainees); see also Miranda v. County

of Lake, 900 F.3d 335, 350-51 (7th Cir. 2018) (citing Castro v. County of Los Angeles, 833 F.3d
1060, 1070 (9th Cir. 2016)); Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (extending
Kingsley’s objective inquiry to all Fourteenth Amendment conditions-of-confinement claims
brought by pretrial detainees); Seventh Circuit Civil Pattern Jury Instruction 7.16 (2017).
A constitutional violation, however, does not occur “every time an inmate gets attacked by
another inmate.” Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008). Correctional facilities, “after
all, are dangerous places often full of people who have demonstrated aggression.” Id. Thus,
“negligence” by correctional officials “is not enough.” Smith v. Sangamon Cty. Sheriff’s Dep’t,

10
715 F.3d 188, 191 (7th Cir. 2014) (citations omitted); see also Miranda, 900 F.3d at 353–54 (“[I]t
will not be enough to show negligence or gross negligence.”) (citations omitted).
Whether an officer’s actions were objectively reasonable “turns on the ‘facts and
circumstances of each particular case.’” Kingsley, 576 U.S. at 397. It is judged “from the

perspective of a reasonable officer on the scene, including what the officer knew at the time, not
with the 20/20 vision of hindsight.” Id. Therefore, to hold Defendant Read liable for failing to
protect Plaintiff against Mills’ January 7, 2019 attack, Plaintiff must come forth with evidence that
a reasonable officer in Read’s shoes would have appreciated a high degree of risk to Plaintiff if
Plaintiff and Mills remained together in the same cellblock. Jail officials are generally put on notice
of a risk of harm when an inmate articulates a specific threat to his safety. See Johnson v. Taylor,
No. 18 C 5263, 2020 WL 5891401, at *2 (N.D. Ill. Oct. 5, 2020) (Feinerman, J.) (citing Gevas v.
McLaughlin, 798 F.3d 475, 480–82 (7th Cir. 2015) (“In failure to protect cases, [a] prisoner
normally proves actual knowledge of impending harm by showing that he complained to prison
officials about a specific threat to his safety.”)).

Again, this case is a close call. Here, although it certainly appears Mills was agitated on
January 6, 2019, Plaintiff has not introduced evidence sufficient to show that the information
available to Defendant Read would have put a reasonable officer on notice that Mills posed a
particular risk to Plaintiff’s safety. At the time Read entered the dayroom, Mills had not threatened
Plaintiff or any other inmate, nor were any of his actions directed at Plaintiff. Plaintiff’s complaint
that Mills was acting out, while obviously unsettling, did not communicate a heightened risk of
serious harm to Plaintiff personally.
Understandably, Plaintiff points to Mills’ statement that he would fight if Plaintiff wished

11
to fight him as evidence Read should have known an assault was imminent. But this statement is
insufficient to show Read was aware of and unreasonably disregarded a significant risk to
Plaintiff’s safety. Although this statement certainly indicates Mills would not take a passive roll if
threatened, the statement is simply too conditional to indicate Mills would attack Plaintiff

unprovoked a day later. Although Plaintiff informed Read that he considered Mills’ statement to
be a threat against his life, at best, the statement suggests only that Mills would participate in a
fight if Plaintiff initiated one. Particularly as Plaintiff made no complaints that Mills had ever
threatened him, this indefinite statement is insufficient to show Read should have been aware of a
“risk[] so great that [it is] almost certain to materialize if nothing is done.” Brown v. Budz, 398
F.3d 904, 911 (7th Cir. 2005); See also Gevas, 798 F.3d at 480 (“Complaints that convey only a
generalized, vague or stale concern about one’s safety typically will not support an inference that
the official had actual knowledge that the prisoner was in danger.”)
More importantly, even if Mills’ statement is construed as a direct, imminent threat towards
Plaintiff, Plaintiff fails to introduce evidence indicating it was unreasonable for Read to think

Mills’ agitation had sufficiently diffused before he left the dayroom. When Plaintiff tapped on the
glass and informed Read of Mills’ behavior, Read promptly addressed Plaintiff’s concerns by
speaking with Mills. Following their conversation, Read believed the situation had deescalated
such that Mills could contain his frustration and Read exited the dayroom. Although the parties
disagree about exactly what Mills and Read said to each other, Plaintiff does not dispute Read’s
observation that Mills had calmed down during their interaction. Plaintiff testified that Mills
resumed pacing and appeared unhappy after Read left the room, but he also noted this was typical
behavior for Mills. And, as before, although Mills’ pacing may have been disconcerting, Mills’

12
actions were not directed at Plaintiff or any other inmate. Between the time Read left the dayroom
until Mills’ assault the following day, Mills made no threatening statements or actions towards
Plaintiff and, crucially, Plaintiff did not inform Read that he felt there was a continuing threat.
Given that the situation appeared stable when Read left the dayroom and Read was not aware that

Plaintiff continued to have concerns about Mills’ behavior, it was not unreasonable for Read to
believe the situation had been resolved such that the inmates did not need to be separated.
Thus, Plaintiff’s argument against summary judgment boils down to a contention that Read
should have separated him and Mills because Mills had previous conflicts with other inmates.
Plaintiff, however, does not dispute that Read was unaware of any prior incidents involving Mills.
Plaintiff points to several reports detailing incidents involving Mills, but none of these reports
indicate that Read was present for these incidents or otherwise knew about them. Plaintiff also
testified that he had never had any difficulty with Mills before January 6 and 7, 2019.
Consequently, the fact that Mills had previously been in arguments and one fight with other
inmates is insufficient to show that Read should have known Mills posed a significant risk to

Plaintiff. See Whaley v. Erickson, 339 Fed. App’x 619, 622 (7th Cir. 2009).
Understandably, Plaintiff is upset he was attacked, and, with the clarity of hindsight, he
undoubtedly wishes Read had separated him from Mills. However, whether Read acted reasonably
must be judged from the information available to Read on January 6, 2019. Plaintiff has introduced
insufficient evidence that a reasonable officer in Read’s position should have been aware of a
substantial risk to Plaintiff’s safety, particularly once it appeared the situation had been resolved.
Accordingly, summary judgment is warranted in favor of Defendant Read and DeKalb County as
indemnitor.

13
However, because, as previously noted, this is a close case, the Court also addresses Read’s
qualified immunity argument. “Qualified immunity ‘protects government officials from liability
for civil damages when their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Taylor v. City of Milford, 10 F.4th 800,

806 (7th Cir. 2021) (quoting McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010)); see also City
of Escondido v. Emmons, --- U.S. ---, 139 S. Ct. 500, 503 (2019) (per curiam) (same). Evaluating
an assertion of qualified immunity requires a court to ask “whether the plaintiff's allegations make
out a deprivation of a constitutional right, and whether the right was clearly established at the time
of defendant's alleged misconduct.” Taylor, 10 F.4th at 806. Qualified immunity is an affirmative
defense, but once raised, it is a plaintiff’s burden to overcome the defense. Leiser v. Kloth, 933
F.3d 696, 701 (7th Cir. 2019).
As explained above, the undisputed facts of this case demonstrate Plaintiff cannot show
Read’s actions deprived him of a constitutional right. Assuming, though, that Plaintiff could satisfy
the first element of the qualified immunity analysis, he has not demonstrated that the law was

clearly established such that an officer in Read’s position would have understood his actions to
violate Plaintiff’s rights. The Supreme Court has cautioned courts “not to define clearly established
law at a high level of generality.” City of Escondido 139 S. Ct. at 503. Rather, “[t]he focus [of the
qualified immunity assessment] is on whether the officer had fair notice that [his or her] conduct
was unlawful.” Taylor, 10 F.4th at 806 (citations and internal quotations omitted). To satisfy his
burden on the second qualified immunity element, Plaintiff must “show either a reasonably
analogous case that has both articulated the right at issue and applied it to factual circumstances
similar to the one at hand or that the violation was so obvious that a reasonable person necessarily

14
would have recognized it as a violation of the law.” Leiser, 933 F.3d at 701. “For the law to be
clearly established, the ‘existing precedent must have placed the statutory or constitutional
question beyond debate.’” Lopez v. Sheriff of Cook Cty., 993 F.3d 981, 987 (7th Cir. 2021) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

Thus, Plaintiff needed to point to case law establishing that failing to separate Plaintiff and
Mills would have been unreasonable under the circumstances presented by this case. Plaintiff
identifies no analogous case law. Plaintiff points to Velez v. Johnson, 395 F.3d 732 (7th Cir. 2005),
and Haley v. Gross, 86 F.3d 630 (7th Cir. 1996), but neither of these cases remotely resemble the
events at issue here. In Velez, the Seventh Circuit affirmed the denial of defendant’s summary
judgment motion where Velez was sexually assaulted after a jail officer did not check on him in
person after Velez pushed an emergency call button and stated he was having a conflict with his
cellmate. 395 F.3d at 736. In Haley, Haley complained repeatedly to several correctional officers
that his cellmate was acting strangely and had threatened and intimidated him. 86 F.3d at 634-38.
Officers also observed the two inmates screaming at each other and the cellmate specifically told

officers he would “burn the place down” if he and Haley continued to share a cell. Id. at 637 n.18.
The officers ignored both prisoners’ requests to be separated and the cellmate then set a fire in his
cell that resulted in his own death and Haley’s disfigurement. Id. at 642. A jury concluded
defendants were deliberately indifferent to the risk to Haley’s safety, and the Seventh Circuit
affirmed this verdict. Id. at 642-43.
The facts in this case, however, differ significantly from those in Velez and Haley. In
particular, the undisputed facts in this case show Read did not ignore Plaintiff’s complaints about
Mills’ behavior. Rather, Read testified that he did not separate the two detainees because he

15
witnessed Mills calm down after he intervened and Read, therefore, believed the situation to be
resolved. After that point, no inmate informed Read of any continuing concerns regarding Mills.
At most, the cases Plaintiff identifies establish generally that jail officials have a duty to
protect detainees from violence at the hands of other inmates and cannot ignore inmate’s reports

that they have been directly threatened by another prisoner. They do not, however, indicate that
deciding not to separate Plaintiff and Mills under the circumstances in this case—where Read
believed he had addressed Plaintiff’s concerns—would violate a detainee’s clearly established
rights. The Court’s independent review also did not uncover case law that would have put Read
on notice that his actions here would violate Plaintiff’s rights. Neither is Read’s decision to attempt
to calm Mills by speaking with him rather than relocating him to another cellblock so egregious
as to put him beyond the protection of qualified immunity.
As Defendants note, qualified immunity protects a correctional official from liability for a
“mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity gives “ample room for mistaken

judgments by protecting all but the plainly incompetent or those who knowingly violate the law.”
Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotation marks omitted). Defendant Read’s
assessment that Mills had calmed down on January 6, 2019, and did not pose a threat to the other
inmates in the cell block, although ultimately mistaken, is the sort of judgment call qualified
immunity is intended to protect from liability. Accordingly, Plaintiff has not carried his burden on
either prong of the qualified immunity analysis and Defendants are entitled to qualified immunity.

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V. Conclusion
For the reasons stated above, the Court grants Defendants’ motion for summary judgment
[79], and dismisses Plaintiff’s claims with prejudice. Final judgment shall enter.
If Plaintiff wishes to appeal, he must file a notice of appeal with this Court within thirty

days of the entry of judgment. See Fed. R. App. P. 4(a)(1). If Plaintiff appeals, he will be liable for
the $505.00 appellate filing fee regardless of the appeal’s outcome. See Evans v. Ill. Dep’t of Corr.,
150 F.3d 810, 812 (7th Cir. 1998). If the appeal is found to be non-meritorious, Plaintiff could be
assessed a “strike” under 28 U.S.C. § 1915(g). If a prisoner accumulates three “strikes” because
three federal cases or appeals have been dismissed as frivolous or malicious, or for failure to state
a claim, the prisoner may not file suit in federal court without pre-paying the filing fee unless he
is in imminent danger of serious physical injury. Id. If Plaintiff seeks leave to proceed in forma
pauperis on appeal, he must file a motion for leave to proceed in forma pauperis in this Court. See
Fed. R. App. P. 24(a)(1).
Plaintiff need not bring a motion to reconsider this Court’s ruling to preserve his appellate

rights. However, if Plaintiff wishes the Court to reconsider its judgment, he may file a motion
under Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule 59(e) motion must be filed within
28 days of the entry of this judgment. See Fed. R. Civ. P. 59(e). The time to file a motion pursuant
to Rule 59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e) motion suspends
the deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R. App. P.
4(a)(4)(A)(iv). A Rule 60(b) motion must be filed within a reasonable time and, if seeking relief
under Rule 60(b)(1), (2), or (3), must be filed no more than one year after entry of the judgment
or order. See Fed. R. Civ. P. 60(c)(1). The time to file a Rule 60(b) motion cannot be extended.

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See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing an appeal until
the Rule 60(b) motion is ruled upon only if the motion is filed within 28 days of the entry of
judgment. See Fed. R. App. P. 4(a)(4)(A)(v1).

Date: October 14, 2021 By: SS \ □□
Tain D. Johnston
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10145485. Public record. Not legal advice.