# Rico v. Butler

> District Court, S.D. Illinois · August 28, 2019

URL: https://www.frixlaw.com/law-library/cases/10150902

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** August 28, 2019
- **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/10150902

## Opinion text

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

Page 11 of 111
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).
Page 22 of 111
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
Page 33 of 111
#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).
Page 44 of 111
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
Page 55 of 111
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

Page 66 of 111
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…”
Page 77 of 111
(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
Page 88 of 111
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

Page 99 of 111
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

Page 110 of 111
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

Page 11 of 11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10150902. Public record. Not legal advice.