Alvarado-Gonzalez v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JUAN ALVARADO-GONZALEZ, )

)

Plaintiff, )

)

vs. ) Case No. 3:19-CV-493-MAB

)

CHRISTOPHER THOMPSON, )

DUSTIN BOWLES, )

MAC-SHANE FRANK, )

ILLINOIS DEPARTMENT OF )

CORRECTIONS, AMY HILL, )

CHAD WALL, PHILLIP BAKER, and )

JOHN HARGIS )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the motion for partial summary

judgment filed by Defendants Phillip Baker, Dustin Bowles, Mac-Shane Frank, Amy Hill,

John Hargis, Christopher (Scott) Thompson, Chad Wall, and the Illinois Department of

Corrections (Doc. 109).

BACKGROUND

Plaintiff Juan Alvarado-Gonzalez, an inmate of the Illinois Department of

Corrections, brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging that

prison officials at Pinckneyville Correctional Center violated his constitutional rights. In

the third amended complaint, which was filed with the assistance of counsel, Plaintiff

asserts Eighth Amendment claims of “failure to protect” and “cruel and unusual

punishment” against all of the Defendants (Doc. 85). His allegations cover four separate

instances in which he alleges that Defendants failed to protect him from assaults by other

inmates and housed him with other inmates “known for violence” (Doc. 85).

Defendants filed their motion for partial summary judgment on August 24, 2022

(Doc. 109), and Plaintiff filed a response in opposition (Doc. 110). In his response brief,

Plaintiff addressed Defendants’ statement of material facts and arguments and also

included a Statement of Additional Facts (Id.). Defendants did not file a reply brief or

otherwise address Plaintiff’s Statement of Additional Facts. Consequently, those facts are

deemed admitted for purposes of summary judgment. FED. R. CIV. P. 56(e).

FACTS

Defendant Christopher “Scott” Thompson was the Warden of Pinckneyville (Doc.

109-1, p. 17). Defendant Dustin Bowles was an Internal Affairs officer at Pinckneyville

(see Doc. 110-6; Doc. 109-2). Defendants Phillip Baker, Mac-Shane Frank, John Hargis, and

Chad Wall were also correctional officers at Pinckneyville (see Doc. 109, Doc. 110).

Defendant Amy Hill was a counselor at Pinckneyville and was Plaintiff’s counselor for

about five or six months, including during the summer and early fall of 2018 (Doc. 109-1,

pp. 16).

Plaintiff transferred into Pinckneyville Correctional Center on January 18, 2018

(Doc. 109-1, p. 3; see also Doc. 110-1). Plaintiff is 5’2” and weighed about 120–130 pounds;

he was sentenced to an aggregate term of 11 years for sex crimes (Doc. 109-1, p. 12). See

also Illinois Department of Corrections Individual in Custody Search,

https://idoc.illinois.gov/offender/inmatesearch.html (search by IDOC number

Y26876); People v. Alvarado-Gonzalez, 2021 IL App (1st) 181209-U, ¶ 1, 2021 WL 1856681

(Ill. App. Ct. May 7, 2021).

The following facts, as written, are all undisputed—either admitted by Plaintiff or

uncontested by Defendants. Plaintiff testified that he was repeatedly celled with violent

criminals with long sentences (Doc. 109-1, p. 4). Specifically, he was placed with cellmates

with sentences ranging from 15 years to 100 years who were charged with violent crimes,

and who were bigger than him (Id. at pp. 12, 17). When Plaintiff asked Defendant Frank

why he was not placed with normal, non-violent cellmates, Frank told Plaintiff that he

would never be assigned to a cellmate that was white or Hispanic and he would only be

placed with cellmates who “can kill” him (Id. at p. 10).

Shortly after his arrival at Pinckneyville, Plaintiff was celled with an inmate named

Demetrius Moore for about two and a half months (Doc. 109-1, p. 3; see also Doc. 110-1).

Demetrious Moore is 5 feet, 9 inches tall, weighed over 160 pounds, and was serving a

twenty-year sentence for murder and intent to kill or injure (Doc. 110-13). See also Illinois

Department of Corrections Individual in Custody Search,

https://idoc.illinois.gov/offender/inmatesearch.html (search by IDOC number

M52256). According to Plaintiff, Moore forced him to masturbate Moore several times

while he was seated on a chair (Doc. 109-1, p. 3). Plaintiff claims that Moore threatened

to kill him and that the assaults lasted from January 25 to February 25 (Id.). According to

Plaintiff, he reported Moore’s assaults to an official whose name he cannot recall;

however, the officer did not help him (Id.). Plaintiff also testified that he wrote a note to

Defendant Frank, who spoke with Plaintiff in late February 2018 (Id. at p. 4). Plaintiff

testified that Frank and Defendant Bowles met with him to take a report of his claims and

then ripped it up in front of him (Id.). Plaintiff also testified that he was moved out of the

cell with Moore about a week after he met with Frank and Bowles, and he was held alone

for a short time (Id.).

In March 2018, Plaintiff traveled to Cook County for a court writ (Doc. 109-1, p. 3).

When Plaintiff returned to the facility, he was placed with an inmate named Douglas

Simmons (Id. at pp. 3, 4). Simmons is 5 feet, 6 inches tall, weighed over 160 pounds, and

is serving time for eight crimes, which carry an aggregate sentence of 36 years (Doc. 110-

14). See also Illinois Department of Corrections Individual in Custody Search,

https://idoc.illinois.gov/offender/inmatesearch.html (search by IDOC number

M43031). Plaintiff testified that Simmons forced him to perform sexual acts several times

from about April 24 until May 14, 2018 (Id. at pp. 4, 5). In particular, Simmons attempted

to penetrate him on May 13th, and Plaintiff said that Simmons was able to get “very

slightly in” him (Id. at p. 5). Plaintiff also testified that Simmons physically attacked him

on May 14th (Id. at p. 4). According to Plaintiff, while he was housed with Simmons, he

transmitted a note to Defendants Frank and Bowles, who again did a report, signed it,

and then tore it up (Id. at p. 5). Plaintiff also testified that he met with just Defendant

Frank on May 1st and that Frank told him that he was a liar and made everything up (Id.

at pp. 5–6). Plaintiff also met with Defendant Bowles towards the end of May 2018, and

Bowles “made a report, and [Plaintiff] signed it, and then it disappeared.” (Id. at p. 6). On

May 14th, Plaintiff was placed in segregation for a month, thus separating him from

Simmons (Id. at p. 5).

It is undisputed that on June 13, 2018, Plaintiff submitted an emergency grievance,

which was documented on the prison’s emergency grievance log (Doc. 110-2).1 Warden

Thompson determined that it was not an emergency (see id.). It is also undisputed that

Plaintiff spoke with Counselor Amy Hill in June, July, and August 2018 about his

“problems,” including “all of the abuse [he] suffered at the hands of Douglas Simmons

and [Daniel] Beasley” (Doc. 109-1, pp. 16, 17). The evidence is conflicted as to who

Plaintiff was housed with at the time he spoke to Hill. It is undisputed that he was no

longer housed with Simmons (Doc. 109, p. 4; Doc. 110, p. 6; Doc. 109-1, p. 17; Doc. 110-1,

p. 3). Plaintiff testified that, at the time he spoke with Hill, he was celled with an inmate

named “Marvenl Williams,” whom he claimed was “the only good cellmate” that he had

(Doc. 109-1, p. 17). However, according to a cell assignment report produced during

discovery, Plaintiff was celled with Daniel Beasley in June, July, and August 2018 (Doc.

110-1, p. 3). Plaintiff was not celled with an individual named Marvell Williams until

January 2019 (see id.).

Defendants did not dispute Plaintiff’s story that Counselor Hill told him to write

grievances, and to write them in Spanish because she would find someone to translate

them (Doc. 109, p. 16). Plaintiff provided Defendant Hill with two written grievances

written in Spanish (Id.). When Plaintiff asked Defendant Hill about the grievances in

August, she acknowledged having them and said that he would receive a response in the

1 Despite the prison’s records acknowledging receipt of this grievance, Defendants were unable to produce

a copy of it in connection with this briefing or the previous summary judgment briefing regarding

exhaustion (see Doc. 88, p. 6).

future (Id.). But when Plaintiff asked Defendant Hill about the grievances again in

September, she responded that she did not have them anymore (Id.).

Plaintiff testified via affidavit that on October 29, 2018, his cellmate Daniel Beasley

repeatedly punched him in the face and broke his nose (Doc. 46-1, p. 3; see also Doc. 109-

1, p. 11).2 Plaintiff was disciplined for fighting with Beasley; the Adjustment Committee

report indicates that both “inmates admitted to exchanging closed fist punches” (Doc.

109-2; see also Doc. 109-1, p. 11). Plaintiff lost ten days of good conduct credits as part of

the discipline (Doc. 109-2). The discipline has not been expunged or reversed, nor has the

good time been given back (Doc. 109-1, p. 11; Doc. 109-2).

On December 11, 2018, Warden Thompson sent a notification to Plaintiff

informing him that his complaint under the Prison Rape Elimination Act (PREA) was

unsubstantiated due to insufficient evidence (Doc. 110-3). On December 12, 2018, Plaintiff

filed a grievance with the Administrative Review Board regarding his abuse by

Demetrious Moore, Douglas Simmons, and Daniel Beasley and complained that there

was a history of his being assigned violent criminals as his cellmates and that Warden

Thompson denied his requests for help (Doc. 110-5). The grievance was returned to

Plaintiff on December 31, 2018, with a notation by Sarah Johnson that the Warden would

be notified of his PREA claims (Id.).

2 Daniel Beasley is apparently no longer in IDOC custody because he cannot be located in the IDOC’s

prisoner database. See Illinois Department of Corrections Individual in Custody Search,

https://idoc.illinois.gov/offender/inmatesearch.html (search by last name “Beasley” or by inmate

number K97637). See also Doc. 110-1 (indicating Daniel Beasley’s inmate number was K97637).

A mental health record dated December 14, 2018, indicates that Plaintiff told a

clinician he had been assaulted three times in prison and was afraid (Doc. 110-6). He

asked for help being celled alone or with someone with a case similar to his (Id.). The

clinician spoke to Officer Bowles in Inmate Affairs and completed an updated PREA

predator/vulnerable form and submitted it to Warden Thompson (Id.).

Plaintiff testified that in August 2019, his cellmate, Tre Sterling, attacked him (Doc.

109-1, p. 7).3 According to Plaintiff, at the time of the attack, he and Sterling had been

cellmates for about two months (Id. at p. 8; see also Doc. 110-1, p. 3). Plaintiff said he and

Sterling initially got along, however, after Sterling found out about Plaintiff’s criminal

conviction, he attacked him (Doc. 109-1, p. 8). More specifically, Plaintiff testified that

Sterling found out about his conviction on a Thursday, threatened to kill Plaintiff on

Friday, and then attacked him on a Sunday (Id.). Plaintiff testified that he spoke with

Defendant Hargis, Defendant Baker, and Defendant Wall about Sterling’s threats and

each of them failed to separate Plaintiff and Sterling (Id. at pp. 8–9, 15). Plaintiff was

separated from Sterling after the attack (Id. at p. 8). Plaintiff met with Defendants Frank

and Bowles to discuss Sterling about a week after the fight (Doc. 109-1, p. 11).

Plaintiff testified that he never spoke with Warden Thompson but says that he

submitted grievances and sent “about a hundred requests” to Thompson (Doc. 109-1, p.

3 Tre Sterling is apparently no longer in IDOC custody because he cannot be located in the IDOC’s prisoner

database. See Illinois Department of Corrections Individual in Custody Search,

https://idoc.illinois.gov/offender/inmatesearch.html (search by last name “Sterling” or by inmate

number Y34842). See also Doc. 110-1 (indicating Tre Sterling’s inmate number was Y34842).

17). The documentary evidence shows that Warden Thompson addressed Plaintiff’s

emergency grievance in June 2018 and sent a memo to Plaintiff in December 2018

regarding his PREA complaint (Doc. 110-2; Doc. 110-3). The documentary evidence also

shows that on January 15, 2020, Defendant Scott sent a letter to Plaintiff noting that

Plaintiff had been interviewed several times regarding his claims, that his sexual abuse

and assault allegations were investigated, and that he had accepted his current housing

assignment (Doc. 109-4). Warden Thompson claims that he “does not recall Plaintiff or

being asked by Plaintiff for help to prevent assaults or other risks of harm from his

cellmates” (Doc. 110-4). Officers Baker, Bowles, Frank, Hargis, and Wall, and Counselor

Hill likewise claim the same (Docs. 110-7 through 110-12).

DISCUSSION

Summary judgment is proper only if the movant shows that there is no genuine

issue as to any material fact and they are entitled to judgment as a matter of law. FED. R.

CIV. P. 56(a). “Factual disputes are genuine only if there is sufficient evidence for a

reasonable jury to return a verdict in favor of the non-moving party on the evidence

presented, and they are material only if their resolution might change the suit’s outcome

under the governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013) (citation

and internal quotation marks omitted). In deciding a motion for summary judgment, the

court’s role is not to determine the truth of the matter, and the court may not “choose

between competing inferences or balance the relative weight of conflicting

evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hansen v. Fincantieri

Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citations omitted); Doe v. R.R. Donnelley

& Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Instead, “it must view all the evidence in the

record in the light most favorable to the non-moving party and resolve all factual disputes

in favor of the non-moving party.” Hansen, 763 F.3d at 836.

As previously indicated, Plaintiff asserts Eighth Amendment claims of “failure to

protect” (Count 1) and “cruel and unusual punishment” (Count 2) against all of the

Defendants (Doc. 52). The Court is unsure how these two claims differ from one another.

Failure to protect is a particular type of cruel and unusual punishment prohibited by the

Eighth Amendment.4 In other words, a failure to protect claim is a claim for cruel and

unusual punishment. Both of Plaintiff’s claims center on Defendants’ actions in celling

him with “offenders known for violence” and ignoring his pleas for help (see Doc. 52, pp.

13–14, 15–16). While these claims appear to the Court to be duplicative of one another, or

at the very least capable of being consolidated into one claim, neither of the parties

addressed the issue and so the Court will not take any action at this point to dismiss one

of the Counts. The Court simply notes that by all appearance, the “cruel and unusual

punishment” claim in Count 2 is based on a failure to protect, and therefore Counts 1 and

2 will be analyzed using the same standards.

A. THE IDOC

The Court opts to begin with Defendants’ second-to-last argument: the IDOC is

not a person who may be sued under § 1983 (Doc. 109, p. 15). Plaintiff conceded that he

4 The Eighth Amendment’s cruel and unusual punishment clause gives rise to a number of other claims as

well, including deliberate indifference to serious medical needs, excessive force, and conditions of

confinement claims.

was unable to discover sufficient facts to establish liability against the IDOC and thus

summary judgment is appropriate (Doc. 110, p. 24). Accordingly, the motion is granted

as to the IDOC.

B. HECK BAR

Defendants argue that Plaintiff’s claims as they pertain to his former cellmate

Daniel Beasley are barred by Heck v. Humphreys (Doc. 109, p. 5). Plaintiff claims that

Defendants failed to separate him from Beasley and that Beasley later attacked him,

causing injury. Defendants argue that Plaintiff cannot present evidence to support that

theory because it would directly counter findings made by the disciplinary board, and

Heck bars inmates from proceeding on a civil rights claim if the judgment would imply

the invalidity of action taken in a prison disciplinary proceeding (Doc. 109, p. 5).

The Supreme Court held in Heck that a state prisoner cannot proceed on civil rights

claim under 42 U.S.C. § 1983 if a judgment in his favor would “necessarily imply” the

invalidity of his conviction, unless and until that conviction has been set aside. Heck v.

Humphrey, 512 U.S. 477, 486–87 (1994); Moore v. Mahone, 652 F.3d 722, 723 (7th Cir. 2011);

Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2008). This doctrine was extended to bar § 1983

claims challenging the outcome of prison disciplinary proceedings. Edwards v. Balisok, 520

U.S. 641 (1997); Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2008). “[W]hen considering

whether Heck bars a § 1983 claim, [the court] must consider the factual basis of the claim

and determine whether it necessarily implies the invalidity of the conviction.” Viramontes

v. City of Chicago, 840 F.3d 423, 428 (7th Cir. 2016) (citation and internal quotation marks

omitted). “The plaintiff can only proceed to the extent that the facts underlying the [claim]

are not inconsistent with the essential facts supporting the conviction.” Id. (citation

omitted). In other words, “Heck forbids a prisoner in his civil rights case to challenge a

finding in his criminal or prison-discipline case that was essential to the decision in that

case . . . .” Moore, 652 F.3d at 723. But “the prisoner can remain ‘agnostic’ in his civil rights

case about the findings in the criminal (or disciplinary) proceeding; he doesn't have to

confess.” Id.

Here, the Adjustment Committee found Plaintiff guilty of fighting based on a

finding that he and Beasley had both thrown punches at each other (see Doc. 109-2). While

Plaintiff is bound by that finding because his disciplinary conviction has not been

overturned, that finding is not necessarily inconsistent with Plaintiff’s claim that

Defendants failed to protect him from Beasley’s attack in the first place. Plaintiff can

argue that he needed protection from Beasley and that Beasley attacked him, without

contesting that he fought back and punched Beasley. So long as Plaintiff does not contend

that he did not throw any punches, then his failure to protect claim does not undermine

his conviction on the disciplinary charge, and his claim is not barred by Heck.

Contra Foerderer v. Mathias, 848 Fed. Appx. 667, 668 (7th Cir. 2021) (failure to protect claim

barred by Heck where prisoner contended that he merely defended himself against

inmate’s attack, which conflicted with the disciplinary decision finding that prisoner had

attacked the other inmate while he slept); Moore, 652 F.3d at 724–25 (failure to protect

claim barred by Heck where a prisoner contended that he was the victim of an officer’s

unprovoked, gratuitous, and brutal attack, which conflicted with the disciplinary board’s

ruling crediting the officer’s statement that the prisoner was belligerent and

argumentative and had punched one of the officers repeatedly in the face and head before

being handcuffed by another officer.)

Accordingly, this aspect of Defendants’ motion for summary judgment is denied.

C. DELIBERATE INDIFFERENCE

“The Eighth Amendment’s prohibition on ‘cruel and unusual punishments’

obligates prison officials to ‘take reasonable measures to guarantee the safety of . . .

inmates.’” Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir. 2018) (quoting Farmer v. Brennan,

511 U.S. 825, 832 (1994)). In particular, prison officials are required “to protect prisoners

from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833. This requirement

exists because “[b]eing violently assaulted in prison is simply not part of the penalty that

criminal offenders pay for their offenses against society.” J.K.J. v. Polk Cnty., 960 F.3d 367,

381 (7th Cir. 2020) (quoting Farmer, 511 U.S. at 834).

In order to establish an Eighth Amendment violation based on a failure to protect,

an inmate must show that the prison official was deliberately indifferent to “an excessive

risk” to their health or safety. Sinn, 911 F.3d at 419 (quoting Gevas v. McLaughlin, 798 F.3d

475, 480 (7th Cir. 2015)). Like all deliberate indifference claims, there is both an objective

and subjective component. Gevas, 798 F.3d at 480. First, the prisoner must show that the

harm to which they were exposed was objectively serious. Id. Second, the prisoner must

show that the prison official knew of and disregarded the excessive risk to the inmate’s

health or safety. Balsewicz v. Pawlyk, 963 F.3d 650, 654 (7th Cir. 2020). This requires “actual,

and not merely constructive, knowledge” of the risk of harm, meaning the official “must

both be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw that inference.” Gevas, 798 F.3d at 480 (quoting

Farmer, 511 U.S. at 837). In deciding whether the prison official was aware of the risk, “the

circumstances as a whole must be considered.” LaBrec v. Walker, 948 F.3d 836, 843 (7th

Cir. 2020).

1. Risk of Harm

Defendants Baker, Hargis, Hill, Thompson, and Wall (but not Bowles or Frank)

argue that while Plaintiff tries “to paint his cellmates as known and dangerous risks . . .”

he “cannot establish that each of the cellmates he describes were inherently dangerous”

(Doc. 109, pp. 9–10). Defendants assert “there is no evidence that each of the inmates

housed with Plaintiff amounted to a danger known by [them] equating to an obvious

risk.” (Id.). Defendants imply that none of the cellmates Plaintiff had were known to

assault or sexually abuse other inmates, and the assaults on him were “[nothing] more

than unfortunate random act[s] of violence in a prison[.]” (Id. at p. 11).

Defendants’ argument fails to fully account for and credit Plaintiff’s story and to

construe the evidence in the light most favorable to him. It is undisputed that Plaintiff

was relatively small in stature (5’2” and 120–130 pounds)5 and he was incarcerated for

crimes that made him a target for violence and sexual assault.6 Farmer v. Brennan, 511

5 Christopher D. Man & John P. Cronan, Forecasting Sexual Abuse in Prison: The Prison Subculture of

Masculinity As A Backdrop for "Deliberate Indifference", 92 J. CRIM. L. & CRIMINOLOGY 127, 167–68 (2002)

(explaining research shows that small inmates face a substantial risk of being victims of sexual assault).

6 Kristine Schanbacher, An Inside Job: The Role Correctional Officials Play in the Occurrence of Sexual Assault in

U.S. Detention Centers, 9 DEPAUL J. FOR SOC. JUST. 38, 46 (2015) (“[I]nmates with particular offenses make

them more likely targets for sexual assault. For example, if a prisoner is serving a sentence for crimes

against minors . . . he [or she] faces an increased risk of sexual assault.”) (quoting Anthony C. Thompson,

What Happens Behind Locked Doors: The Difficulty of Addressing and Eliminating Rape in Prison, 35 NEW ENG.

U.S. 825, 843 (1994) (explaining that a prisoner can establish exposure to a sufficiently

serious risk of harm “by showing that he belongs to an identifiable group of prisoners

who are frequently singled out for violent attack by other inmates”). Defendants also did

not dispute Plaintiff’s assertions that he was repeatedly celled with inmates who were

bigger than him, had been charged with violent crimes, and were serving long sentences.7

Finally, Plaintiff testified that he was told he would only be placed with cellmates who

could kill him. Based on these facts, a reasonable jury could conclude that Plaintiff’s

cellmates posed an objectively serious risk of harm to him, and this aspect of Defendants’

motion for summary judgment is denied.

2. Warden Thompson

Defendants argue that Warden Thompson is entitled to summary judgment due

to lack of personal involvement (Doc. 109, p. 7). “Individual liability pursuant to

§ 1983 ‘requires personal involvement in the alleged constitutional deprivation.’” Estate

of Perry v. Wenzel, 872 F.3d 439, 459 (7th Cir. 2017) (citation omitted). A supervisor’s

personal involvement can be established by showed that they “know about the conduct

J. ON CRIM. & CIV. CONFINEMENT 19, 125 (2011)); Alice Ristroph, Sexual Punishments, 15 COLUM. J.

GENDER & L. 139, 159-60 (2006) (explaining that sex offenders are a “distinct and disfavored category within

prison populations, subject to heightened abuse from both corrections officers and fellow inmates.”); Man,

supra note 4, at 174–75 (discussing how inmates convicted of sex crimes “are often perceived as the lowest

of the low” and are “frequent targets of vicious beatings and rapes under the inmates’ collective sense of

prison justice. . . . This is especially true of child sex abuse, in which case rape of the child molester is

perceived as justified. As a result, inmates convicted of sex crimes against minors often attempt to conceal

their reason for incarceration, but once their crime becomes known, the ensuing abuse is notably brutal.”)

7 See Man, supra note 4, at 167–68, 173–74, 175 (explaining research shows that larger inmates, inmates

convicted of serious felonies, and inmates serving long sentences are more likely to assume the role of

aggressor)

and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he] might

see.’” Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017) (citation omitted).

Defendants do not clearly articulate what their argument is. They began by briefly

discussing what they presumably consider to be illustrative case law (Doc. 109, pp. 7–8).

First, Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017), in which the Seventh

Circuit held the plaintiff failed to sufficiently allege a claim for supervisory liability

against the police chief (Doc. 109, p. 7). Second, Butera v, Cottey, 285 F.3d 601, 603, 606,

607 (7th Cir. 2002), in which the Seventh Circuit held that the plaintiff’s evidence was

insufficient to show the sheriff had knowledge of a specific threat to the plaintiff (Doc.

109, pp. 7, 8). Defendants then asserted, “[t]here is insufficient evidence to tie Warden

Thompson to Plaintiff’s Eighth Amendment claims[,]” and cited to a string of cases

holding that a prison official cannot be held liable based on what they “should have

known” (Doc. 109, p. 8). Then Defendants stated, “[h]ere, the evidence shows that

Warden Thompson sent correspondence to Plaintiff reiterating his understanding of the

facts and that he also notified Plaintiff of the outcome of his PREA complaint, which was

unsubstantiated. Plaintiff cannot show that Defendant Thompson was sufficiently

involved in order to be liable under § 1983.” (Doc. 109, p. 8).

Defendants’ “analysis” is ultimately limited to just three sentences that are

essentially conclusory statements. There is no meaningful legal assessment of the cases

cited as supporting authority. Gill does not appear to have any bearing on the instant case

because we are far past the pleadings stage; we are at summary judgment and the issue

is not whether Plaintiff has sufficiently stated a claim. As for Butera, it is not enough for

to simply outline the holding of a case. Defendants must explain how the illustrative case

connects to the facts or legal theories in the case at hand. Otherwise, the Court is left to

try to piece together the contours of Defendants’ argument. And in this instance, the

Court is unable to connect the dots and state with any modicum of confidence what

argument(s) Defendants are trying to make (e.g., Thompson was unaware of the facts

indicating a sufficiently substantial danger existed, or he knew the underlying facts but

believed the risk was insubstantial or nonexistent, or he knew of the substantial risk to

Plaintiff’s health or safety but responded reasonably to that risk).

The undisputed evidence is that Plaintiff sent over one hundred requests to

Warden Thompson. Plaintiff also filed at least one emergency grievance and one PREA

complaint, which Warden Thompson read and responded to but took no action with

respect to the assignment of Plaintiff’s cellmates. Based on this evidence, a reasonable

juror could find against Warden Thompson. See Gevas v. McLaughlin, 798 F.3d 475, 480

(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.’” (quoting Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996)));

Farmer, 511 U.S. at 844 (explaining trier of fact can infer knowledge from an obvious risk

to inmate health or safety). Consequently, summary judgment is denied as to Warden

Thompson based on his lack of personal involvement.

To be clear, the Court is not concluding that there is no conceivable basis on which

Warden Thompson is entitled to summary judgment. Rather, Defendants simply have

not presented a cogent explanation, supported by legal citations, as to why he cannot be

held liable for failure to protect or deliberate indifference. See Nelson v. Napolitano, 657

F.3d 586, 590 (7th Cir. 2011) (“Neither the district court nor this court are obliged to

research and construct legal arguments for parties, especially when they are represented

by counsel.”); Tyler v. Runyon, 70 F.3d 458, 465 (7th Cir. 1995) (“The responsibility for the

identification, framing, and argument of the issues . . . is that of the lawyers, not that of

the judges. . . . So, if [a party] fails to make a minimally complete and comprehensible

argument for each of his claims, he loses regardless of the merits of those claims as they

might have appeared on a fuller presentation.”).

3. Counselor Amy Hill

Defendants argue that Counselor Amy Hill is also entitled to summary judgment

due to lack of personal involvement (Doc. 109, p. 8). They say Plaintiff’s issue with Amy

Hill is that she threw away his grievances, and they argue that even if that is true, it would

only matter if Plaintiff had written to Hill while he was in danger (Id.). Defendants imply

that Plaintiff was not in danger at the time he wrote to Hill because “he testified in his

deposition that he only spoke with Hill after an incident of harm and while he was in a

good situation” being housed with “the only good cellmate” he had (Id.).

Summary judgment cannot be granted for Hill because an issue of material fact

exists as to who Plaintiff was celled with when he spoke to Hill and authored his

grievances. On the one hand, Plaintiff testified that he was celled with Marvell Williams,

who was a “good cellmate,” at the time he spoke to Amy Hill (Doc. 109-1, p. 17).

Elsewhere, however, Plaintiff’s testimony suggests that he was living with Daniel Beasley

at the time he spoke to Amy Hill and was afraid of him. Specifically, Plaintiff testified

that he “wrote in detail about all of the abuse [he] suffered at the hands of . . . Beasley” in

his grievances, and if Hill “would have had the grievances translated” then Plaintiff

would not have subsequently “had [his] nose broken” by Beasley in October 2018 (Doc.

109-1, p. 16). Furthermore, the cell assignment history indicates that Plaintiff was celled

with Beasley during the timeframe that he says he spoke to Amy Hill (Doc. 110-1, p. 3).

See also Doc. 110-5 (grievance to the ARB indicating that he wrote two grievances to

Counselor Hill “about PREA and my celie try kill me [sic]”).

This issue of fact is material because it speaks to whether Plaintiff was in any

danger at the time he spoke to Hill, and the resolution of this issue of fact could determine

the outcome of Plaintiff’s claim. The Court cannot decide on summary judgment which

story is true and who Plaintiff was celled with. Rowlands v. United Parcel Serv. - Fort Wayne,

901 F.3d 792, 798 (7th Cir. 2018) (“[A] court may not make credibility determinations,

weigh the evidence, or decide which inferences to draw from the facts on summary

judgment, and must avoid the temptation to decide which party's version of the facts is

more likely true.”) (citations and internal quotation marks and alterations omitted).

Consequently, summary judgment for Amy Hill must be denied.

4. State of Mind

Defendants argue that Plaintiff cannot show they exhibited deliberate indifference

to his safety based upon the information he presented or that they otherwise knew with

respect to Demetrius Moore, Douglas Simmons, or Tre Sterling (Doc. 109, p. 11).

Specifically, Defendants claim that Plaintiff only talked to Officers Frank and Bowles

about his issues with Demetrius Moore and Douglas Simmons (Id. at p. 13). Because

Plaintiff did not warn Defendants Baker, Hargis, Hill, Thompson, and Wall about issues

with Moore or Simmons, they argue that they cannot be held liable for deliberate

indifference as it pertains to those two inmates (Id.). Likewise, Defendants Bowles and

Frank argue that because Plaintiff did not tell them about any issues with Tre Sterling,

they cannot be held liable for deliberate indifference as it pertains to Sterling (Id.). They

argue that “[f]or these reasons . . . summary judgment is appropriate for the Defendants

on most of Plaintiff’s allegations.” (Id.).

Defendants’ argument implicates the manner in which Plaintiff stated his claims

in his complaint. Plaintiff did not state a separate claim against each Defendant, nor did

he state a separate claim as to each incident/cellmate (see Doc. 52). Rather, Plaintiff

alleged one consolidated claim of failure to protect (Count 1) and one consolidated claim

of cruel and unusual punishment (Count 2) against all seven individual Defendants, and

he indicated that each Defendant was liable based on their specific actions (or inactions)

as described in the complaint (see Doc. 52, pp. 13–16). Importantly, Plaintiff did not allege

that all seven individual Defendants were liable for failure to protect and deliberate

indifference with respect to each and every one of his four cellmates who attacked him.

In other words, Plaintiff’s claims are not that “everybody is liable for everything,” which

is what Defendants seemingly suggest. Plaintiff confirmed as much in his response to the

motion for summary judgment. He reiterated that his claims against Defendants Baker,

Hargis, and Wall relate exclusively to the Tre Sterling assault (Doc. 110, p. 17); his claims

against Counselor Hill relate exclusively to the Daniel Beasley assault (Id.); and his claims

against Warden Thompson and Officers Frank and Bowles relate to all four of the

cellmates who assaulted him (Id. at pp. 18–21).

Against this backdrop, the Court thinks Defendants’ argument reflects a

misunderstanding about the nature of Plaintiff’s claims and fails to establish any basis for

awarding summary judgment.

D. QUALIFIED IMMUNITY

At this point, all of the individual Defendants remain on the hook for Plaintiff’s

claims of failure to protect and cruel and unusual punishment, so the Court must consider

Defendants’ argument that they are protected by qualified immunity (Doc. 109, pp. 13–

16). The defense of qualified immunity generally “protects government agents from

liability when their actions do not violate ‘clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Hernandez v. Cook Cnty. Sheriff’s

Office, 634 F.3d 906, 914 (7th Cir. 2011) (citing Purvis v. Oest, 614 F.3d 713, 720 (7th Cir.

2010)). “It protects ‘all but the plainly incompetent or those who knowingly violate the

law.’” Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)). While qualified immunity is an affirmative defense, once raised, the

burden shifts to the plaintiff to defeat it. Leiser v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019)

(citing Purvis, 614 F.3d at 717), cert. denied, 206 L. Ed. 2d 856 (2020). To defeat a defense of

qualified immunity, the plaintiff must show that the facts demonstrate “a violation of a

constitutional right,” and that the “constitutional right was clearly established at the time

of the alleged violation.” Leiser, 933 F.3d at 701 (quoting Gill v. City of Milwaukee, 850 F.3d

335, 340 (7th Cir. 2017)).

“[A] right is ‘clearly established’ when it is ‘sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.’” Lovett v.

Herbert, 907 F.3d 986, 992 (7th Cir. 2018) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)). Plaintiff can meet his burden on this prong in one of two ways. Lovett, 907 F.3d at

992. First, Plaintiff can show that the Supreme Court or the Seventh Circuit has

“previously held that conduct analogous to the defendant officer’s actions constitutes a

violation of the right at issue.” Lovett, 907 F.3d at 992; accord Leiser, 933 F.3d at 702. This

does not mean that Plaintiff “must be able to point to a case ‘on all fours’” with the facts

of his own case. Howell v. Smith, 853 F.3d 892, 897 (7th Cir. 2017). But he does “need to

show some settled authority that would have shown a reasonable officer in [Defendant’s]

position that his alleged actions violated the Constitution.” Leiser, 933 F.3d at 702

(citations omitted). Or, if there is no existing precedent that puts the unlawfulness of the

conduct beyond debate, Plaintiff can show this is “one of the rare cases” when the

defendant’s conduct “is so egregious that it is an obvious violation of a constitutional

right.” Leiser, 933 F.3d at 702.

Either way, the inquiry into whether a right is clearly established “must be

undertaken in light of the specific context of the case, not as a broad general proposition.”

Lovett, 907 F.3d at 992 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). This requires us to

consider “whether the violative nature of particular conduct is clearly established.” Leiser,

933 F.3d at 702 (quoting Mullenix, 577 U.S. at 12). Courts have been cautioned not to define

the right too broadly “at a high level of generality,” because “the entire second prong of

qualified immunity analysis will be subsumed by the first and immunity will be available

rarely, if ever.” Thompson v. Cope, 900 F.3d 414, 421 (7th Cir. 2018) (citing Ashcroft v. al-

Kidd, 563 U.S. 731, 742 (2011) and Golodner v. Berliner, 770 F.3d 196, 206 (2d Cir. 2014)). But

courts have also been cautioned not to define the right too narrowly “based on the exact

factual scenario presented” because then the government actor “will invariably receive

qualified immunity.” Thompson, 900 F.3d at 421 (citing Golodner, 770 F.3d at 206)).

Here, Defendants did not explicitly define the right allegedly violated and their

argument is not actually about whether the rights at issue were clearly established (see

Doc. 109, pp. 14–15). Rather, they merely argue that Plaintiff’s evidence is not sufficient

to establish deliberate indifference—an argument the Court has already rejected.

Furthermore, that prison officials “have the duty to protect a prisoner once they become

aware he is in danger of assault by another prisoner . . . is a now well-settled aspect of

Eighth Amendment jurisprudence.” Gevas v. McLaughlin, 798 F.3d 475, 484 (7th Cir. 2015).

Defendants have given the Court no reason to think Plaintiff’s rights at issue in

this case were not clearly established, and this aspect of their motion for summary

judgment is denied.

E. EQUITABLE RELIEF

For relief, Plaintiff seeks, in part, injunctive and declaratory relief (Doc. 52, pp. 15,

16). According to Defendants, he seeks “injunctive and declaratory relief . . . to prevent

the continued violation of his constitutional rights,” which they claim is too vague (Doc.

109, p. 16). Defendants, however, overlooked the final paragraph of the complaint, in

which Plaintiff asks for “an order of injunctive relief to prevent further retaliation and

order that Plaintiff be assigned to a low-risk cellmate” (Doc. 52, p. 16).

“Permanent injunctive relief is appropriate if the applicant demonstrates ‘(1) that

it has suffered an irreparable injury; (2) that remedies available at law, such as monetary

damages, are inadequate to compensate for that injury; (3) that, considering the balance

of hardships between the plaintiff and defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent injunction.’” Liebhart

v. SPX Corp., 998 F.3d 772, 779 (7th Cir. 2021) (quoting eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388, 391 (2006)).

Defendants argue that Plaintiff cannot satisfy the third and fourth factors

regarding balance of hardships and public interest (Doc. 109, p. 16–17). Specifically,

Defendants argue that the injunctive relief Plaintiff seeks is contrary to public policy

because an order directing how cell assignments should be made requires the court to

intervene in the day-to-day operations and speak on a topic that courts are “[not]

necessarily equipped to review” (Id.). In support of their argument, they rely solely on an

unpublished case out of the Central District of Illinois: Aguado v. Godinez, Case No. 13-

3378-SEM (C.D. Ill. June 26, 2015) (Doc. 109-3). The Court is not prepared to hold based

on such thin authority that it is never appropriate for a court to issue an order providing

any type of parameters for cell placement. See Van Straaten v. Shell Oil Prod. Co. LLC, 678

F.3d 486, 490 (7th Cir. 2012) (“[D]ecisions of district courts are not authoritative even

within the rendering district. They cannot ‘settle’ any proposition.”). See also Turley v.

Lashbrook, No. 08-07-SCW, 2018 WL 7585236, at *8 (S.D. Ill. Sept. 26, 2018) (permanently

enjoining the Warden at Menard Correctional Center from housing a particular inmate

in the North I cell house in a single cell with a one or more other inmates or cellmates).

Defendants next cite case law reflecting that Plaintiff “must come forward with

evidence from which it can be inferred that the defendant-officials were at the time suit

was filed, and are at the time of summary judgment, knowingly and unreasonably

disregarding an objectively intolerable risk of harm, and that they will continue to do so

. . . during the remainder of the litigation and into the future.” (Doc. 109, p. 17). They

make the conclusory, unadorned argument that, “[a]lthough there are questions of fact

as to some of his claims, Plaintiff cannot meet the burden required of him” (Id.). A

perfunctory argument such as this is simply not enough to warrant summary judgment.

See United States v. Useni, 516 F.3d 634, 658 (7th Cir. 2008) (“We have repeatedly warned

that perfunctory and undeveloped arguments, and arguments that are unsupported by

pertinent authority, are waived.”).

Defendants have failed to show as a matter of law that Plaintiff should be

foreclosed from seeking injunctive relief. This aspect of their motion for summary

judgment is denied.

CONCLUSION

The motion for summary judgment filed by Defendants Phillip Baker, Dustin

Bowles, Mac-Shane Frank, Amy Hill, John Hargis, Christopher (Scott) Thompson, Chad

Wall, and the Illinois Department of Corrections (Doc. 109) is GRANTED in part and

DENIED in part. It is GRANTED as to the IDOC and the IDOC is DISMISSED with

prejudice as a Defendant in this lawsuit. The motion is denied in all other respects.

This matter will proceed to trial on Plaintiff’s failure to protect claim (Count 1) and

cruel and unusual punishment claim (Count 2) against Defendants Phillip Baker, Dustin

Bowles, Mac-Shane Frank, Amy Hill, John Hargis, Christopher (Scott) Thompson, and

Chad Wall.

A status conference to discuss the trial schedule and the utility of a settlement

conference will be set by a separate Order.

IT IS SO ORDERED.

DATED: March 31, 2023

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge