Rico v. Butler

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MIGUEL RICO, )

)

Plaintiff, )

)

v. ) Case No. 3:16-CV-0877-NJR-GCS

)

KEITH SANDEN and )

RYAN VALLEROY, )

)

Defendants. )

REPORT AND RECOMMENDATION

SISON, Magistrate Judge:

I. INTRODUCTION AND BACKGROUND

Pending before the Court is Defendant Ryan Valleroy’s motion for summary

judgment (Doc. 39). This matter has been referred to United States Magistrate Judge

Gilbert C. Sison by United States Chief District Judge Nancy J. Rosenstengel

pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b) and Local

Rule 72.1(a). Based on the following, the undersigned recommends that the District

Court ddeny the motion for summary judgment.

Plaintiff Miguel Rico (“Rico”), an inmate housed at Pinckneyville Correctional

Center (Pinckneyville”), brought this present action alleging violations of his

constitutional civil rights while incarcerated at Menard Correctional Center

(“Menard”). Upon a merits review, the Court found he alleged claims that Defendants

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Doe #1, Doe #2, Doe #4, Doe #5, Hecht, Sanden and Valleroy violated his

constitutional rights by failing to protect Rico from the beatings he received on July

19, 2014 and on July 31, 2014 in violation of the Eighth Amendment’s prohibition on

cruel and unusual punishment (Doc. 11, p. 8).1

As to those claims that survived review, the Court recited the pertinent facts:

Prior to the events at issue here, Plaintiff renounced his gang

membership in the Latin Folks by speaking to prison authorities and

giving them information about the Latin Folks and the Latin Kings. (Doc.

10, p. 2). As a result of this debriefing, Plaintiff was approved for protective

custody. (Doc. 10, p. 2). Plaintiff alleges that gang members had placed a

verified contract out on his head. (Doc. 10, p. 3). While in protective

custody, Plaintiff was disciplined for a separate incident and sent to

general population segregation in the North 2 cell house. (Doc. 10, p. 2-3).

Plaintiff alleges that John Doe #4 failed to notify segregation staff that

Plaintiff could not be housed with gang members while in segregation.

(Doc. 10, p. 2-3).

When Plaintiff arrived at North 2, he was housed with a Latin King

member known as Abdelhamed. (Doc. 10, p. 3). On July 19, 2014,

Abdelhamed began receiving kites from other gang members directing him

to “smash” Plaintiff because Plaintiff had dropped out of the Latin Folks

and debriefed. (Doc. 1, p. 4). The notes told Abdelhamed that if he refused

to smash Plaintiff, he would be beaten for disobeying an order from the

gang chiefs. (Doc. 1, p. 4). Abdelhamed showed Plaintiff the kites and told

Plaintiff he had until 10 pm to get out of their shared cell, or he would beat

Plaintiff. (Doc. 1, p. 4).

Plaintiff stopped the cell house gallery officer, Keith Sanden, and

told him that he had been placed in a general population cell, and to please

check with John Doe #4 and J. Hecht because he was supposed to be

separated from all Latin Folks gangs in Menard. Sanden replied, “suck it

up, you’re not in P.C. now.” (Doc. 1, p. 5). Plaintiff then explained that he

was a former gang member and had debriefed, and that his cellmate had

1 On September 4, 2018, the Court acknowledged Rico’s stipulation of dismissal as to

defendant Jeannette Hecht and noted that judgment will be entered as to Hecht with the entry of

the final judgment (Doc. 40). Thereafter, pursuant to Federal Rule of Civil Procedure 42, the Court

dismissed defendants John Does #1-5 (Doc. 42).

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received kites instructing him to beat Plaintiff. (Doc. 10, p. 5). Abdelhamed

himself told Sanden that if Plaintiff was not out of his cell by 10 pm, he

would “beat the brakes” off Plaintiff. (Doc. 1, p. 5). Sanden told Plaintiff he

would check with the cell house Sergeant, John Doe #1. (Doc. 1, p. 5).

Plaintiff begged Sanden not to leave him alone with Abdelhamed or to take

him with him, but Sanden told Plaintiff to “stop whining and acting like a

punk.” (Doc. 10, p. 5).

Sanden continued to make his rounds. (Doc. 10, p. 5). Abdelhamed

began punching, slapping, and kicking Plaintiff in the face and body, and

Sanden observed the assault. (Doc. 10, p. 5). Plaintiff cried out for help, but

Sanden told him to man-up and fight back. (Doc. 10, p. 5). Sanden

eventually told Plaintiff that he had discussed the matter with John Doe

#1, and that Doe #1 said he would “look into it.” (Doc. 10, p. 5). Sanden

further told Plaintiff that if Plaintiff wanted out of the cell, he should fight

back and then Sanden would write them both an incident report for

fighting. (Doc. 10, p. 5). Sanden told Plaintiff that fighting was the only

way he would let Plaintiff out of the cell with Abdelhamed. (Doc. 10, p. 5).

Doe #1 stopped by Plaintiff’s cell several hours later. (Doc. 10, p. 6).

Plaintiff explained the entire situation. (Doc. 10, p. 6). He also told Doe #1

that he wanted to file a grievance on Doe #4, Hecht, and Sanden for their

conduct. (Doc. 10, p. 6). At that time, Plaintiff’s lips and eye were swollen.

(Doc. 10, p. 6). Plaintiff asked Doe #1 to remove him from the cell. (Doc. 10,

p. 6). Doe #1 replied that “you tell me you want to write my staff up, and

get my officers in trouble, are you crazy, Rico? Deal with it the best you

can, I won’t help you write grievances or reports against my officers, have

a nice day Mr. Rico.” (Doc. 10, p. 6). Doe #1 then told Sanden, “let them

fight a little then write them both up for fighting. That will cover your ass

if he writes grievances.” (Doc. 10, p. 6-7).

At approximately 9:30 pm on July 19, 2014, Sanden made his last

round, and Plaintiff allowed him to see Plaintiff throwing punches so that

Sanden would write an incident report and remove Plaintiff from the cell.

(Doc. 10, p. 7). Sanden laughed and told Plaintiff you finally “grew some

punk ass balls.” (Doc. 10, p. 7). Plaintiff was beaten and bruised. (Doc. 10,

p. 7). Plaintiff received an incident report. (Doc. 10, p. 7). He was ultimately

disciplined for the fight, even though he explained the situation to the

adjustment committee. (Doc. 10, p. 7).

Plaintiff was then moved to another cell in the North 2 cell house.

(Doc. 10, p. 7). He had an interview with internal affairs officer John Doe

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#2 about the incident with Abdelhamed and his interactions with Sanden

and Doe #1. (Doc. 10, p. 8). Plaintiff told John Doe #2 that all of the Latin

King and Latin Folk members should have been on Plaintiff’s keep safe

from (“KSF”) list. (Doc. 10, p. 8). Doe #2 became angry and told Plaintiff

not to tell him how to do his job. (Doc. 10, p. 8). He then told Plaintiff that

Menard did not have the bed space to create a protective custody

segregation unit, and therefore he had no choice but to return Plaintiff to

general population segregation. (Doc. 10, p. 8).

On July 31, 2014, Ryan Valleroy brought another inmate, Garcia, to

Plaintiff’s cell. (Doc. 10, p. 9). Garcia was a member of La Raza, a gang

affiliated with the Latin Folks. (Doc. 10, p. 9). Valleroy told Plaintiff that

Garcia was going to be his new cellmate, and suggested that Garcia could

teach Plaintiff some lessons about writing grievances on officers and “how

to be a man.” (Doc. 10, p. 9). Plaintiff then explained to Valleroy about his

protective custody status and how he had renounced and debriefed, and

thus needed to be separated from La Raza members like Garcia. (Doc.

10, p. 9). Valleroy promised to tell the sergeant, John Doe #5. (Doc. 10, p.

9). Doe #5 came to Plaintiff’s cell, and Plaintiff explained his situation.

(Doc. 10, p. 9). Doe #5 told Plaintiff that he cannot control the placement

officer, and then directed Valleroy to put Garcia into Plaintiff’s cell. (Doc.

10, p. 9). He also directed Valleroy to write Plaintiff a ticket if the inmates

started to fight because that way Plaintiff would not be able to write

grievances against the officers. (Doc. 10, p. 9). Valleroy then placed Garcia

in Plaintiff’s cell and told them to “play nice.” (Doc. 10, p. 10).

Garcia immediately received two kites telling him that Plaintiff was

a snitch and to “handle” Plaintiff. (Doc. 10, p. 19). At approximately 2:30

pm on July 31, 2014 Garcia punched Plaintiff in the face and upper body.

(Doc. 10, p. 10). Plaintiff began to black out and decided that he needed to

fight back for his own safety. (Doc. 10, p. 10). Valleroy witnessed the fight.

(Doc. 10, p. 10). Doe #5 told Valleroy not to take Plaintiff to health care,

and Plaintiff was moved to a different cell and given an incident report.

(Doc. 10, p. 10). Plaintiff alleges that John Doe #3 was the lieutenant in

charge of North 2 during both incidents. (Doc. 10, p. 16).

Plaintiff then met with Doe #2 and told him the whole story. (Doc.

10, p. 10). Doe #2 told Plaintiff the adjustment committee would not believe

him. (Doc. 10, p. 10-11). An officer asked Plaintiff if he wanted to go before

the adjustment committee on August 5, 2014, but Plaintiff refused because

he reasoned that he would be found guilty anyway. (Doc. 10, p. 11).

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Plaintiff saw Hecht on his rounds and asked him why segregation

staff was not notified of his protective custody status. (Doc. 10, p. 11). Hecht

replied that he had, but that it was not his job to follow up with others and

make them do their jobs. (Doc. 10, p. 12). Plaintiff alleges that he

eventually went on a hunger strike and then made a suicide attempt in

order to be transferred out of general population segregation cells. (Doc.

10, p. 14).

(Doc. 11, pgs. 3-7) (footnote omitted).

Valleroy filed the motion for summary judgment arguing that Rico’s version of

the events is insufficient for liability to attach, thus, he is entitled to judgment as a

matter of law (Doc. 39). Valleroy also argues that he is entitled to qualified immunity.

Rico opposes the motion for summary judgment (Doc. 43). The undersigned turns to

address the merits.

II. FACTS

Miguel Rico was a member of the gang Sureños (under the umbrella of the

Latin Folks gang) prior to entering prison. Rico quit the gang before he was

incarcerated. Once in prison, Rico refused to participate in gang activities and

provided information on several gang members to prison officials. In late 2013, Rico

was warned that the Latin Folks were enforcing the rules and would require him to

participate in gang activities. Rico was approached by gang members in December

2013, and the gang members demanded information from him. As a result, Rico was

concerned for his safety with respect to inmate-members of the Latin Folks and other

affiliated gangs, and he sought protective custody.

In June 2014, Rico was issued a disciplinary ticket and received six months of

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segregation. On July 19, 2014, inmate Abdelhamed (known as Egypt), a member of

the Latin Kings, was celled with Rico. That day, Abdelhamed got notes (“kites”) from

other prisoners instructing Abdelhamed that he had until 10:00 p.m. to attack Rico.

Rico informed Defendant Sanden of the threat and Abdelhamed confirmed the same

to Defendant Sanden. Thereafter, Abdelhamed attacked Rico. Rico was removed

from the cell he shared with Abdelhamed and moved to another cell. Rico spoke with

Internal Affairs the day after Abdelhamed attacked him.

On or around the end of July 2014, prison officials tried to place an inmate that

goes by the name of Tone in the same cell as Rico. (Rico’s deposition, p. 70). Rico told

prison staff that he could not be placed with Tone because Tone’s gang affiliation was

with the Maniacs. Tone was not placed with Rico but placed in the cell next to

him.

Shortly thereafter, Valleroy tried to put inmate Garcia, who goes by the name

of Wilo, in Rico’s cell. (Rico’s deposition, pgs. 70-74). Garcia was affiliated with the

Raza gang. Garcia was a member of the Latin Counts and a Count within the

organization. Rico tried to explain to Valleroy that he could not be in a cell with

Garcia because of safety concerns. at p. 74. Rico also told Valleroy about the issues

with inmate Tone, that his life was in danger from the Latin Folks and that Garcia

was affiliated with Latin Folks. Valleroy asked Garcia if he knew Rico and Garcia

said no. at p. 75. Valleroy also asked Garcia if he had a problem with Rico and

Garcia said no. Subsequently, Valleroy gave Rico the order for handcuffing and

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Rico told him no. Valleroy called the sergeant on the walkie-talkie and the

sergeant came over to Rico.

Rico explained the situation to the sergeant along with other officials that were

present. (Rico’s deposition, p. 76). Rico asked to speak to Internal Affairs, but his

request was refused. at p. 77. The sergeant gave the order for Rico to be handcuffed

or sprayed with mace. Thus, Rico was handcuffed and Valleroy placed Garcia in

the cell with Rico. Valleroy told Rico and Garcia if he saw them fighting, he would

write them both up.

After Garcia was placed in the cell with Rico, Garcia began receiving notes

similar to those received by Abdelhamed. Garcia told Rico “man, you have to get out

of here.” (Rico’s deposition, p. 78). Next, Rico told an officer during rounds that he

needed to speak with Valleroy about being removed from the cell. Rico testified that

Valleroy told him that “he couldn’t do anything else for me.”

Later that day, Garcia attacked Rico in the cell. (Rico’s deposition, p. 79).

During the fight, Valleroy passed by the cell and broke up the fight. Valleroy called

the fight in over the walkie-talkie and issued Rico a disciplinary ticket for assault.

The July 31, 2014 disciplinary report reads as follows:

Offense: 102 Assaulting Any Person

Observation: On the above date and approximate time while doing a

routine gallery check of North 2 Eight gallery this R/O walked by cell 8-50

and noticed inmate Rico (M34394) striking inmate Garcia (M36774) with

closed fists. This R/O notified his Sgt Drake. Inmates were given direct

order then proceeded to stop. Both inmates were cuffed seen by med tech.

Inmate Rico was then placed in N2 5-06. Chain of command notified…”

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(Doc. 39-2).

III. SUMMARY JUDGMENT STANDARD

The standard applied to summary judgment motions under Federal Rule of

Civil Procedure 56 is well-settled and has been succinctly stated as follows:

Summary judgment is appropriate where the admissible evidence shows

that there is no genuine dispute as to any material fact and that the

moving party is entitled to judgment as a matter of law. A “material

fact” is one identified by the substantive law as affecting the outcome of

the suit. A “genuine issue”” exists with respect to any such material fact

. . . when “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” On the other hand, where the factual

record taken as a whole could lead a rational trier of fact to find for

the non-moving party, there is nothing for a jury to do. In determining

whether a genuine issue of material fact exists, we view the record in

the light most favorable to the nonmoving party.

, 753 F.3d 676, 681 (7th Cir. 2014)(citations

omitted).

IV. ANALYSIS

An Eighth Amendment failure to protect claim arises when a plaintiff is

incarcerated under conditions posing a substantial risk of serious harm, and the

defendant acts with deliberate indifference to the prisoner’s health or safety.

, 511 U.S. 825, 834, 837 (1994); , 599 F.3d 749,

756 (7th Cir. 2010). “[A] generalized risk of violence is not enough, for prisons are

inherently dangerous places.” , No. 11-2086, 451 Fed. Appx. 588, 589

(7th Cir. Dec. 12, 2011)(internal citations and quotations omitted). Instead, a plaintiff

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must allege “a tangible threat to his safety or well-being” and “a substantial risk of

future harm.” . Prison officials must be aware of a specific, impending, and

substantial threat to Plaintiff’s safety. , 86 F.3d 90, 92 (7th Cir.

1996). “A substantial risk of serious harm is one in which the risk is so great that it

is almost certain to materialize if nothing is done.” , 451 Fed. Appx. at 589.

Valleroy contends that he did not disregard Rico’s safety concerns. Valleroy

claims that prior to placing Garcia in the cell with Rico, he asked Garcia the following

questions to which Garcia responded no: (1) if he knew Rico and (2) whether he had

any problems with Rico. Further, Valleroy contends that his supervising sergeant

directed him to place Garcia in the cell with Rico.

However, as Rico counters, there are questions of facts as to whether Valleroy

was aware of the specific threat that Garcia posed to Rico and Valleroy

placed Garcia in the cell with him. The record includes evidence that indicates

Valleroy was aware of Rico’s previous assault by inmate Abdelhamed under similar

circumstances, which occurred on July 14, 2014. The record also includes evidence

that Rico told Valleroy that he needed protection from inmate-gang members

affiliated with the Latin Folks and that Rico told Valleroy his life and safety would

be in danger if he was placed with Garcia. Further, there is evidence that Valleroy

had knowledge of the specific threat immediately after placing Garcia in the cell as

he told the inmates he would write them up if he saw them fighting. Additionally,

there is evidence that Rico told Valleroy that Garcia received notes/kites being

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placed in the cell with Rico, that Valleroy told Rico there was nothing he could do to

help him and that Valleroy did nothing to prevent the altercation between Rico and

Garcia. Viewing these facts in the light most favorable to Rico, the undersigned finds

that there are questions of material fact that preclude summary judgment.

Lastly, the undersigned finds that Valleroy is not entitled to qualified

immunity. In 2014, it was clearly established that the risk of an attack by a cellmate

constitutes a risk of serious harm. , 511 U.S. at 833 (“[P]rison officials

have a duty . . . to protect prisoners from violence at the hands of other prisoners.”).

, 440 F.3d 879, 889 (7th Cir. 2006); , 86 F.3d at 92.

Thus, Valleroy is not entitled to qualified immunity on Rico’s Eighth Amendment

failure to protect claim.

IV. RECOMMENDATION

Accordingly, the undersigned RRECOMMENDS that the Court DDENY the

motion for summary judgment (Doc. 39). If the Court accepts the undersigned’s

recommendation, the claims against Keith Sanden and Ryan Valleroy in Count 1 for

failure to protect will remain in the case.

Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), the parties shall have

fourteen (14) days after service of this Report and Recommendation to file written

objections thereto. The failure to file a timely objection may result in the waiver of

the right to challenge this Report and Recommendation before either the District

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Court or the Court of Appeals. See, e.g, Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir.

2004). Objections to the Report are due on or before September 11, 2019.

IT IS SO ORDERDED. Digitally signed by

Magistrate Judge

DATED: August 28, 2019. Aking 3,.Gilbert C. Sison

Date: 2019.08.28

09:36:38 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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