Mayoral, Joel v. Sheahan, Michael F.

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1034

JOEL MAYORAL,

Plaintiff-Appellant,

v.

MICHAEL F. SHEAHAN, in his official capacity

as Sheriff of Cook County, and SHARON JACKSON,

WILLIAM JANAK, and DANIEL THEISEN, in his

individual capacity and in his official capacity

as a correction officer at the Cook County Jail,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 7249--Paul E. Plunkett, Judge.

Argued September 29, 2000--Decided March 27, 2001

Before EASTERBROOK, RIPPLE, and EVANS, Circuit

Judges.

EVANS, Circuit Judge. While Joel Mayoral was a

pretrial detainee at the Cook County jail, he was

attacked by other inmates. His complaint in this

42 U.S.C. sec. 1983 action says the attack

rendered him paralyzed and disfigured. Mayoral’s

suit alleges that certain correctional officers

were deliberately indifferent to his welfare and

that Cook County Sheriff Michael F. Sheahan and

Captain David Theisen failed to implement a

policy which would consider gang affiliation in

the housing of inmates at the jail. The district

judge granted summary judgment for the defendants

and Mayoral appeals. We take the facts, in this

fact-intensive case, in the light most favorable

to Mayoral at this stage of the case.

Mayoral, a former member of the Latin Kings

street gang, was arrested for the murder of a

member of the Latin Disciples, a rival gang. At

midnight on November 23, 1994, he was taken to

the Cook County jail, where he told the receiving

officer that he had been a gang member, that his

charged crime involved a rival gang member, that

he feared for his life, and that he needed

protective custody. The officer recorded the

information. But when Mayoral said he was no

longer in a gang, the officer became annoyed and

scratched over the information on the form.

Mayoral was taken to Division I of the jail, a

maximum security division, where he received his

prison uniform. He then went to court, and when

he returned around 4 p.m. he again told an

officer that he needed protective custody. He was

taken, however, to a general section of Division

I known as Tier B-3 where he was checked in by

Officer Sharon Jackson. Mayoral tried to tell her

he needed protection, but she said she was busy

and rushed him into the tier’s day room.

She was, in fact, busier than she should have

been. She was "cross-watching" tiers--which means

that because the jail was short-staffed she was

watching two tiers. She had been working as a

correctional officer for a year or so at the time

of the incident, and there was deposition

testimony that she did not have sufficient

experience to be cross-watching two tiers. Also,

her radio--a means of summoning help fast--was

not working and had not been working for several

days.

As soon as he entered the tier, Mayoral was

approached by an inmate who asked his gang

affiliation. Eventually, Mayoral admitted that he

was a former Latin King. Inmates gathered, saying

that theirs was a "Folks" deck and they could not

have a member of a "People" gang there. When

Mayoral tried to make a telephone call to his

sister, an inmate came up to him and said he

could not use that particular telephone because

it was a Folks’ phone. He tried to use the other

phone; an inmate reached over his shoulder and

disconnected the call. On a third attempt,

Mayoral managed to speak with his sister for a

few minutes before other inmates told him to hang

up because it was a Folks’ phone.

Mayoral also noticed that the tier reeked of

"hooch," a type of prison alcohol. He observed

inmates drinking an orange substance that he

believed to be hooch. Hooch, apparently, is

widely produced by inmates in the Cook County

jail and is frequently confiscated in shakedowns

at the jail.

Officer Jackson had also observed inmates

drinking an orange substance and noted that they

were "being very loud." She noted that the

inmates appeared to be intoxicated. She notified

Sgt. William Janak, who arrived on the scene and

locked most of the inmates in their cells. An

inmate named Jamie O’Kelly and a few others

refused to be locked up. Janak told O’Kelly that

if he could not control his guys, the inmates

would have to remain locked up. Janak left the

area and told his supervisor that the inmates

seemed drunk from hooch.

Janak returned to the tier at about 5:30 and

told inmate O’Kelly that he would release the

inmates if O’Kelly would promise to control "his

guys," which O’Kelly agreed to do. Jackson noted

in her logbook that the inmates were released

from their cells "per Sgt. Janak." Janak, in

turn, says he received permission from his

supervisors to end the lockdown. Jail policies

require a search of the tier before releasing

inmates from a lockdown, but this time no search

was conducted.

Dinner was served, and soon Mayoral again tried

to call his sister. While he was on the phone,

less than an hour after the lockdown ended, a

fight broke out. Mayoral tried to reach his cell,

but O’Kelly and others backed him into a corner.

O’Kelly stabbed him with a weapon (a shank in

prison lingo) and others hit him on the head with

a mop wringer. Someone also threw a television at

Mayoral, hitting him in the head. The beating

lasted around 15 minutes. Ultimately, Mayoral was

lying unconscious on the floor. It was later

determined that he had been stabbed around 16

times.

Jackson stated that inmates were fighting at

6:20. She claims to have immediately called Janak

from a telephone, but Janak denies that he spoke

with her at that time. At her deposition, Jackson

seemed to have forgotten all about the events of

November 23 and had to be reminded that an

incident took place on her tier on that date.

Once reminded, she said that loud noise and

profanity are what inspired her to call Sgt.

Janak, who in turn called an "all available." On

the other hand, Janak says he heard about the

riot when he heard an "all available" call at

6:45. He does not know who made the call. Captain

Theisen thought it was Officer Leonardo Brown.

But Brown said that the first he knew of the riot

was when he heard the "all available" call at

6:45 when he was picking up dinner trays on

another tier. When Theisen arrived at Tier B-3,

one inmate, presumably Mayoral, was already

unconscious on the floor. Officers who responded

to the call described what they saw when they

arrived at Tier B as a "gang riot" involving

numerous inmates, some of whom were intoxicated.

Contrary to the time period involved here before

help arrived, it ordinarily takes only around 4

minutes for additional officers to respond to an

"all available" call.

Captain Theisen estimates that over 80 percent

of inmates in Division I in 1994 were gang

members, with about 60 percent of these

affiliated with the Disciples, the Vice Lords, or

the Latin Kings. The gangs are divided into two

umbrella organizations known as "People" and

"Folks." Gang-related violence is fairly common,

occurring as often as once or twice a week in

Division I. Not surprisingly, "Folks" do not like

"People," such as Mayoral, who kill "Folks."

Despite what seems to be general knowledge of

gangs in the jail, Officer Jackson testified at

her deposition that she did not know anything

about gang affiliations of inmates, that she

would not know a gang sign or gang colors if she

saw them. She claimed not to be aware of any

gang-related violence at the jail, and she said

that no inmate ever asked her for protection

because he was a member of a gang:

Q Are you familiar with what inmates belong to

what gangs?

A No.

Q Do you ever see any inmates flashing gang signs?

A No. I don’t--I don’t--No.

Q Would you know a gang sign if you saw one?

A No.

Q Would you know gang colors if you saw them?

A No.

Q Are you aware of any gang-related violence at

the jail?

A Hearsay.

Q Have you ever observed any gang-related

violence?

A No.

She acknowledged that she had heard the names of

gangs on television:

Q You don’t know the names of any gangs?

A I’ve heard them like on TV.

Captain Theisen testified that it would be

likely that within the time that Mayoral had been

booked into the jail until the assault, other

inmates would be able to gain knowledge of the

nature of the crime with which he was charged.

The Cook County Department of Corrections

(CCDOC) has no policies regarding separating

rival gang members, even in cases where the crime

for which an inmate is incarcerated is the murder

of a rival gang member. Lieutenant Isaac Chatman

testified that protective custody is not

automatically offered to an inmate who has killed

a rival gang member: "He’s the one that did

whatever he did." When asked whether he thought

that would put him at risk, Chatman said, "He’s

the one who is charged with the crime."

Mayoral’s case was resolved in the district

court on summary judgment. Accordingly, our

review is de novo. Summary judgment may be

granted only when there are no genuine issues of

material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56.

We construe the facts and inferences in the light

favorable to the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986). The

issue here is whether, based on the facts in the

record and the inferences which can be drawn from

those facts, Jackson, Janak, and Theisen, as a

matter of law, were not deliberately indifferent

to Mayoral’s health and safety and that the lack

of a policy was likewise not the result of

deliberate indifference to inmate safety.

Mayoral is a pretrial detainee whose claim

arises under the Fourteenth Amendment’s Due

Process Clause rather than directly under the

Eighth Amendment, but as we said in Weiss v.

Cooley, ___ F.3d ___, 2000 WL 1367988 (7th Cir.

2000), there is "little practical difference

between the two standards." See Tesch v. County

of Green Lake, 157 F.3d at 473-74 (7th Cir.

1998); Henderson v. Sheahan, 196 F.3d 839 (7th

Cir. 1999), cert. denied, 120 S. Ct. 2691 (2000).

The Eighth Amendment protects against the

infliction of "cruel and unusual punishment."

Because officials have taken away virtually all

of a prisoner’s ability to protect himself, the

Constitution imposes on officials the duty to

protect those in their charge from harm from

other prisoners. Langston v. Peters, 100 F.3d

1235 (7th Cir. 1996).

The standard against which official conduct is

measured is the deliberate indifference standard

set out in Farmer v. Brennan, 511 U.S. 825

(1994). A plaintiff cannot establish a violation

of the Eighth or Fourteenth Amendment by a

showing that the officials were negligent, but

neither must a plaintiff show that the officials

acted with the purpose of causing him harm.

Rather,

a prison official cannot be found liable under

the Eighth Amendment . . . unless the official

knows of and disregards an excessive risk to

inmate health or safety; 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 the inference.

Id. at 837. A plaintiff must show both an

objective risk of danger and that the defendants

had actual knowledge of the risk. Henderson, at

844-45. The facts are "subject to demonstration

in the usual ways . . . ." Farmer, at 842. The

determination as to whether there was an Eighth

Amendment violation can rest on inferences

properly drawn from the facts in the record:

Whether a prison official had the requisite

knowledge of a substantial risk is a question of

fact subject to demonstration in the usual ways,

including inference from circumstantial evidence

. . . and a factfinder may conclude that a prison

official knew of a substantial risk from the very

fact that the risk was obvious.

Furthermore, if a plaintiff presents evidence

showing that a substantial risk of inmate attacks

was longstanding and pervasive or noted by prison

officials in the past, and a defendant has been

exposed to information regarding the risk, then

the evidence could be sufficient to permit a

trier of fact to find that the official in fact

had actual knowledge. It is not necessary that

the official desire the harm to befall an inmate.

Farmer also tells us how specific the knowledge

of the risk must be. The official cannot escape

liability by showing that he did not know that a

plaintiff was especially likely to be assaulted

by the specific prisoner who eventually committed

the assault. It does not matter whether the risk

comes from multiple sources or from one source,

and it does not matter whether the prisoner is at

risk for reasons personal to him or because all

the prisoners face the risk. Referring to Hutto

v. Finney, 437 U.S. 678, 681-82 n.3 (1978), the

Court said that if rape were so common that "some

potential victims dared not sleep [but] instead

. . . would leave their beds and spend the night

clinging to the bars nearest the guards’

station," it would obviously be irrelevant to

liability that the officials could not guess

beforehand precisely who would attack whom.

Farmer, at 843-44, quoting Hutto at 681-82. See

also Haley v. Gross, 86 F.3d 630 (7th Cir. 1996);

Pavlick v. Mifflin, 90 F.3d 205 (7th Cir. 1996).

Mayoral’s claims against Sheriff Sheahan and

Captain Theisen are that in their official

capacities they showed deliberate indifference by

their failure to implement a policy which took

into account gang-related risks to inmate safety

when deciding where to house inmates within the

jail. Mayoral grounds his argument on our

decision in Walsh v. Mellas, 837 F.2d 789 (7th

Cir. 1988).

In Walsh we held that the failure of officials

at Stateville Correctional Center to screen

inmates being assigned to special housing units

to ascertain gang-related activities could

violate the Eighth Amendment. Walsh was a person

known to be targeted by a gang. He had asked for

protective custody; then he deliberately

committed an infraction of prison rules in order

to be placed in disciplinary cells, apparently

thinking those were safer than protective

custody. That seemed to be a good plan until the

prison placed a member of the gang in the cell

with him. That situation differs from the one

before us, and we decline to extend Walsh to the

present situation.

The number of gang members housed by the CCDOC

and the high representation of certain gangs

would place an unmanageable burden on prison

administrators were they required to separate

inmates by gangs. Would the jail be required to

have a tier for Gangster Disciples, a tier for

Latin Kings, etc.? We were told at argument that

there is currently pending a lawsuit to prevent

that sort of a housing pattern on the basis that

it would, in effect, become a racial separation

of inmates. Whether that case presently exists or

not, were the CCDOC to separate inmates by gang

affiliation, and thus effectively by race, it

would only be a matter of time before a lawsuit

would be filed. Plus, it would be an unmanageable

practical burden to manage the jail population.

What would happen if there were too many

Disciples for a tier and too few Latin Kings. It

is a situation such as this one which causes us

to recognize again the wisdom set out in Bell v.

Wolfish, 441 U.S. 520, 547 (1979):

[T]he problems that arise in the day-to-day

operation of a corrections facility are not

susceptible of easy solutions. Prison

administrators therefore should be accorded wide-

ranging deference in the adoption and execution

of policies and practices that in their judgment

are needed to preserve internal order and

discipline and to maintain institutional

security.

The claims against Officer Jackson, Sergeant

Janak, and Captain Theisen in their individual

capacities, however, present a somewhat different

situation. Given that the jail does not separate

gangs, and given that gang-related problems

happen once or twice a week, was it clear as a

matter of law that these officers were not

deliberately indifferent to a known substantial

risk of harm, so that they were entitled to

summary judgment in their favor?

When we combine the Farmer standard with the

standard for granting summary judgment, we

conclude that when the inferences are drawn

favorably to Mayoral, summary judgment was

improperly granted to Jackson and Janak. As to

Captain Theisen, there is insufficient evidence

to raise an inference that he either had

knowledge of the risk or was deliberately

indifferent to a risk. He was properly dismissed.

As to Jackson and Janak, Mayoral has raised

issues of fact which preclude a quick end to the

case on summary judgment. That there was a

situation which posed a significant risk of harm

to inmates was clear to the two officers. Mayoral

testified at his deposition that he notified

Jackson that he needed protective custody and she

brushed him off. In the afternoon, Jackson noted

that the inmates were rowdy and seemed to be

intoxicated. She noticed them drinking an orange

substance. She was concerned enough to notify

Sgt. Janak, who locked most of the inmates in

their cells. When they were let out of their

cells, they continued to be loud. One could draw

an inference that Jackson was aware of a

significant risk to inmates in Tier B-3, and to

Mayoral specifically. Add to this her testimony

at her deposition that she was not aware of gang

activity in the jail. Given the pervasive

presence of gangs, a jury could be justified in

finding testimony like hers incredible and

deliberately ignorant. The Farmer standard is not

designed to give officials the motivation to

"take refuge" in the zone between ignorance and

actual knowledge. Jackson, assuming again that

Mayoral’s view of the facts is correct, could be

seen by a responsible trier of fact as trying to

inhabit that zone.

In addition, Jackson testified at her deposition

that the riot in which Mayoral was injured broke

out at 6:20. She says she notified Janak at that

time. Janak denied that he was on the telephone

with her and claims not to have heard about the

riot until he heard an "all available" call at

6:45. At the very least, these discrepancies

raise questions about whether there was a delay

in summoning help.

For his part, Sgt. Janak knew some inmates were

drunk. He was sufficiently aware of trouble on

the tier to obtain authority to lock down the

inmates. Or at least most of the inmates. O’Kelly

and others refused to be locked down. That some

inmates were drunk and sufficiently powerful to

refuse to obey Janak’s order raises more than an

inference that there was a risk of significant

harm on this tier. Furthermore, before Janak

released the inmates he told inmate O’Kelly to

control "his guys." Janak (again, assuming the

truth of Mayoral’s view of the case) seems to

have deliberately abdicated his responsibility

and put the fate of the inmates in the hands of

another inmate. We hope that is not common

practice; to say the least, it seems unwise and

could be seen as a sign of deliberate

indifference to what happens. It is obvious that

O’Kelly was not interested in keeping the peace;

he, it is claimed, was the one who stabbed

Mayoral. Perhaps he was controlling the troops,

but not for peaceful purposes. It is impossible

to say as a matter of law that one who leaves

such a volatile situation under the control of an

inmate is not deliberately indifferent to inmate

health and safety. It is a question for a jury to

decide.

Accordingly, the judgment is AFFIRMED IN PART and

REVERSED IN PART. The claims against Jackson and

Janak are REMANDED to the district court for

further proceedings.

RIPPLE, Circuit Judge, concurring in part and

dissenting in part. I agree that the grant of

summary judgment to Sergeant Janak and Officer

Jackson in their individual capacities must be

reversed.

In my view, the claim against Captain Theisen

in his individual capacity ought to survive

summary judgment. Captain Theisen was the shift

commander. During his watch, one of his

subordinate officers, Sergeant Janak, had to go,

with his hat in his hand, to an inmate gang

leader and plead for the end of a violent episode

by drunken inmates. Captain Theisen had

operational responsibility for the situation, but

the prison gangs had operational control.

Management was not managing; it had surrendered

its responsibilities to the inmates. Under these

circumstances, a jury could determine that the

shift commander could have remained unaware of

the deplorable state of jail security only by

conscious avoidance/1 of the knowledge or by

reckless indifference.

The claim against Sheriff Sheahan also must

survive summary judgment. I cannot join my

colleagues’ characterization of this claim as

seeking to impose a rigid, constitutionally

imposed duty on the Sheriff to structure living

arrangements so that inmates of different gang

affiliations are kept completely separate. The

plaintiff simply contends that gang affiliation

ought to be a screening factor at the divisional

level so that it is a factor in placement. On

this record, a trier of fact certainly could

conclude that the Sheriff took no adequate

measures to protect inmates from gang violence in

the jail. Given the extent of gang control of

this facility, the trier of fact certainly could

determine that even those at the highest level of

responsibility could only have remained unaware

of such a deplorable state of jail security by

conscious avoidance of the knowledge or by

reckless indifference.

/1 See Farmer v. Brennan, 511 U.S. 825, 843 n.8

(1994); Higgins v. Correctional Med. Servs. of

Illinois, Inc., 178 F.3d 508, 511 (7th Cir.

1999); West v. Waymire, 114 F.3d 646, 651 (7th

Cir. 1997).