Riccardo, Anthony v. Rausch, Larry

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-1961

ANTHONY RICCARDO,

Plaintiff-Appellee,

v.

LARRY RAUSCH,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99-372-CJP—Clifford J. Proud, Magistrate Judge.

____________

ARGUED OCTOBER 22, 2003—DECIDED FEBRUARY 27, 2004

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge. Anthony Riccardo, an

inmate of the Centralia Correctional Center in Illinois,

needed a new cellmate after his former cellmate complained

about being housed with him. Normally that pairing would

have been made by Centralia’s placement office, but when

the evening of May 28, 1997, arrived and some inmates

remained unassigned after the regular placement officers

had left, the task fell to Lt. Larry Rausch, who was serving

the second shift. Rausch matched Riccardo with Juan

Garcia, a pairing that should have lasted only until the

placement officers on the day shift could review matters.

2 No. 02-1961

Two days later Garcia sexually assaulted Riccardo, who

sued Rausch under 42 U.S.C. §1983. A jury concluded that

Rausch had subjected Riccardo to cruel and unusual

punishment and awarded $1.5 million in compensatory

damages. The district court entered judgment on this ver-

dict, and Rausch appeals.

His lead-off argument is that Riccardo failed to use his

administrative remedies. If so, then 42 U.S.C. §1997e(a),

part of the Prison Litigation Reform Act, forecloses this suit

even though Riccardo challenges a discrete incident and

wants a form of relief—money damages—that the ad-

ministrative process in Illinois does not provide. See Porter

v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S.

731 (2001). Riccardo did file an administrative grievance,

but Rausch contends it was too late (in February 1998,

while Illinois sets a limit of six months) and asked the state

to prosecute Garcia rather than do anything about Rausch

and the classification system.

Prisoners must follow state rules about the time and

content of grievances. See Pozo v. McCaughtry, 286 F.3d

1022 (7th Cir. 2002); Strong v. David, 297 F.3d 646 (7th Cir.

2002). Failure to do this means failure to use (and thus to

exhaust) available remedies. Yet the state’s administrative

apparatus did not reject Riccardo’s grievance as untimely;

it accepted and denied the grievance on the merits. At the

time of these events, Illinois permitted a filing after six

months when the prisoner had good cause, see 20 Ill.

Admin. Code §504.810 (1997). The official handling the

grievance must have found good cause; anyway, we held in

Pozo that, when a state treats a filing as timely and

resolves it on the merits, the federal judiciary will not

second-guess that action, for the grievance has served its

function of alerting the state and inviting corrective action.

286 F.3d at 1025.

As for the content of this grievance: true enough, its main

objective was to have Garcia prosecuted. (Riccardo deemed

No. 02-1961 3

inadequate Garcia’s punishment within the prison system.)

But it also at least hinted at problems in prison administra-

tion. Riccardo wrote: “[T]he administration don’t [sic] do

there [sic] job. [A sexual assault] should’ve never [sic]

happen again.” This language is ambiguous. There are two

principal ways to reduce the number of sexual assaults in

prison: better steps ex ante to separate potential aggressors

from potential victims; and harsher penalties ex post in

order to deter future assaults. Riccardo did not distinguish

between the two, and a prison administration receiving

such a grievance should have considered both. Illinois has

not adopted any rule governing the level of detail required

of prisoners’ grievances. “When the administrative rulebook

is silent, a grievance suffices if it alerts the prison to the

nature of the wrong for which redress is sought. As in a

notice-pleading system, the grievant need not lay out the

facts, articulate legal theories, or demand particular relief.

All the grievance need do is object intelligibly to some

asserted shortcoming.” Strong, 297 F.3d at 650. The

document that Riccardo filed is at the border of intelligibil-

ity; it is hard to imagine much less that a prisoner could do

and still alert the prison; yet this grievance did complain

that Garcia had committed a rape and that “the administra-

tion don’t do there job.” A generous construction of this

grievance would have induced the prison to consider the

possibility that the guards could have prevented this

assault. So we conclude that Riccardo exhausted the

administrative process. If Illinois wants grievances to be

more detailed, it must adopt appropriate regulations and

inform prisoners what is required of them. Riccardo is

entitled to a decision on the merits of his constitutional

claim.

Because Riccardo prevailed at trial, we recap the facts

in the light most favorable to his position. Riccardo was

anally raped by his cellmate at Cook County Jail, shortly

after his conviction for aggravated assault. When he arrived

4 No. 02-1961

at Centralia Correctional Center in November 1996, he told

the prison psychologist that he did not feel safe. After a

stint in segregation for violating prison rules, Riccardo

declined to return to the general population. He told guards

that a cellmate in the segregation unit had stolen some of

his property and objected to spending another day with that

cellmate. He believed that the responsible inmate belonged

to the Latin Kings gang and that the Latin Kings may have

been preparing to kill him—though he did not say why he

believed this. But Centralia allows inmates to veto housing

with persons they declare to be enemies, so the prison found

Riccardo a new cellmate. When, after a few days, that

cellmate objected to spending more time with Riccardo,

another pairing was required. (The segregation unit was too

crowded to permit Riccardo a cell of his own.)

During the afternoon of May 28, Garcia had offered

to help Riccardo retrieve his stolen property. Riccardo took

this as an ill omen rather than as a genuine offer of assist-

ance and told Lt. Alemond that he feared for his life if celled

with Garcia. Although Alemond said that he would “take

care of it,” he did nothing—he did not either find a cellmate

for Riccardo or alert Lt. Rausch, Alemond’s replacement on

the next shift. About 9:30 that evening, Rausch brought

Garcia to Riccardo’s cell and told him that Garcia was his

new cellmate. Before the cells were locked for the night,

Riccardo sought out Rausch in private and told him that he

believed that the Latin Kings had a “hit” out on him, and

that he feared for his life if celled with Garcia. Rausch

replied that there was no place else to put Garcia (or

Riccardo) that evening, and that he could not refuse

housing while in segregation. Rausch then brought Riccardo

and Garcia back together and asked each, in turn, if he had

a problem with the other. Riccardo shook his head in the

negative. Rausch took that as agreement to the assignment.

That was Riccardo’s last contact with Rausch. As we have

mentioned, nothing untoward happened that evening or the

No. 02-1961 5

next, but during the evening of May 30 Garcia compelled

Riccardo to perform oral sex. The record does not suggest

that this assault had any connection to the Latin Kings.

During the time between assignment and assault, Riccardo

did not ask for a different cellmate (though he did file two

grievances on May 29 about other matters). Circumstances

brought out at trial suggest that other guards should have

recognized on May 30 that problems had developed between

Riccardo and Garcia; their failure to intervene may be

culpable but cannot be attributed to Rausch, whose liability

depends exclusively on his actions the evening of May 28.

Rausch did not assault Riccardo and is not vicariously

liable for Garcia’s crime. Like other guards, however,

Rausch was required to refrain from placing Riccardo in

harm’s way gratuitously. The qualification “gratuitously” is

important, because prisons are dangerous places. Inmates

get there by violent acts, and many prisoners have a

propensity to commit more. Guards cannot turn away

persons committed by the courts; nor do individual guards

have any control over crowding and other systemic cir-

cumstances. All that can be expected is that guards act

responsibly under the circumstances that confront them.

See McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991). A

guard may be responsible without being credulous. Some

prisoners are manipulative and cry “wolf” in an effort to

have a cell to themselves or choose a favored cellmate.

Other prisoners perceive specters in every shadow, even

though their fears are unsupported. (There is, for example,

no reason to think that the Latin Kings ever had it in for

Riccardo. He did not belong to a rival gang, and there is no

history of violent or overtly hostile encounters between

Riccardo and any gang member.) Guards therefore must

discriminate between serious risks of harm and feigned or

imagined ones, which is not an easy task given the brief

time and scant information available to make each of the

many decisions that fill every day’s work.

6 No. 02-1961

The eighth amendment does not demand that guards

perform this task flawlessly. It does not even hold them to

the negligence standard. Liability is possible, instead, only

when a guard is deliberately indifferent to a substantial

risk of serious harm. See Helling v. McKinney, 509 U.S.

25 (1993); Wilson v. Seiter, 501 U.S. 294 (1991); Estelle

v. Gamble, 429 U.S. 97 (1976). “Deliberate indifference”

means subjective awareness. See Farmer v. Brennan,

511 U.S. 825 (1994). It is not enough, the Court held in

Farmer, that the guard ought to have recognized the risk.

Instead, “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.

Rausch contends that Riccardo did not face a “substantial

risk of serious harm” from Garcia on the evening of May 28,

1997; that, if such a risk was present, Rausch did not

appreciate its existence; and that at all events he is entitled

to qualified immunity because reasonable officers would not

necessarily have understood that the law clearly required

Riccardo and Garcia to be in separate cells. The first two

matters (the objective and subjective components of the

eighth amendment) are for the jury in the first instance,

with appellate review limited to the question whether any

reasonable juror could have found that the requisite level of

risk existed, and that Rausch knew it. Immunity, however,

is a matter of law for the court, to be decided without

deference to the jury’s resolution—and preferably before the

case goes to the jury. See Saucier v. Katz, 533 U.S. 194, 202

(2001); Anderson v. Creighton, 483 U.S. 635 (1987). The

district court brushed aside Rausch’s invocation of immu-

nity, writing that a guard cannot benefit from immunity if

the action taken was not a reasonable response to a risk

actually foreseen. That approach, which merges immunity

and the merits, is incompatible with Saucier and its

predecessors. See 533 U.S. at 203-06. Immunity protects

No. 02-1961 7

officials who act at the “hazy border” (id. at 206) between

the lawful and the forbidden. That Rausch may have

overstepped the line does not mean that every reasonable

officer would have been bound to know that Rausch acted

improperly. We need not pursue the immunity defense,

however, because Saucier calls on appellate courts to

address the merits first, see id. at 201, and Rausch is

entitled to prevail outright: no reasonable juror could have

concluded, on this record, that Rausch actually recognized

that placing Garcia and Riccardo together exposed Riccardo

to substantial risk.

Now it might seem that Rausch had to appreciate

the risk, because (a) Riccardo claimed to fear for his life

if celled with any member of the Latin Kings, and (b) Garcia

in fact harmed Riccardo. One problem with relying on how

things turned out to show knowledge of risk beforehand

is that Garcia did not act for the Latin Kings; he told

Riccardo that he was fulfilling a personal fantasy,

and Riccardo believed this explanation. Thus the risk

that Riccardo professed to fear (a “hit”) did not come to

pass. Even under the law of negligence, this is an important

distinction. If a school district entrusts a bus to a driver

with a bad drinking record, and the tipsy driver runs the

bus off the road while speeding, the school district is liable;

but if instead there is an accident for which the driver is not

at fault (a tree falls on bus), or the driver collapses of a

heart attack while on the road, the district is not liable,

because that was not the type of risk created or increased

by the negligent conduct even though hiring this particular

driver was in the causal chain. See, e.g., Berry v. Sugar

Notch Borough, 191 Pa. 345, 43 A. 240 (1899). The risk from

which Riccardo sought protection was not realized; for all

this record shows, the (objectively evaluated) risk to

Riccardo of sharing a cell with Garcia was no greater than

the risk of sharing a cell with any other prisoner.

8 No. 02-1961

As for Rausch’s subjective assessment: though Riccardo

initially asserted mortal fear, when later asked whether

he “had a problem” with Garcia he shook his head to

give a negative answer. Rausch then had to decide which

statement to believe. Riccardo argues, and the jury evi-

dently concluded, that Rausch should have believed the first

statement, communicated in private, rather than the

second, communicated in Garcia’s presence. A rational

jury could have thought that guards should give priority

to statements made in private. (Rausch testified that, if

Riccardo had claimed to “have a problem” with Garcia, they

would have been separated; but Riccardo might have feared

the consequences in a later encounter in the prison’s

general population.) Still, what Rausch should have

believed is not the right question; we need to know what he

did believe. No reasonable jury could have found, in light of

Riccardo’s denial of “a problem” with Garcia and Rausch’s

decision to act accordingly, that Rausch subjectively

appreciated that his action would expose Riccardo to a

substantial risk of serious harm.

As we have already explained, prisoners may object to

potential cellmates in an effort to manipulate assignments,

or out of ignorance; thus although a protest may demon-

strate risk it does not necessarily do so. The Constitution

does not oblige guards to believe whatever inmates say.

How does a reasonable guard separate fact from fiction?

Rausch knew when making the assignment at least two

things beyond Riccardo’s contradictory assertions. First,

Rausch knew that Garcia was himself in segregation for

protection from the Latin Kings (or at least a subset of

them). Perhaps Garcia was manipulating the system

himself, falsely asserting to fear the Latin Kings so that

he could serve as their assassin; but at least at first cut

Garcia could not be deemed a gang enforcer (and, as we

learned ex post, his attack on Riccardo was neither a “hit”

nor gang related). Second, Rausch knew that Garcia had a

No. 02-1961 9

clean record in prison. He had not been disciplined for acts

of violence (let alone for sexual assault). That makes it

reasonable for Rausch to have deemed Riccardo’s initial

protestation unjustified. It is not as if Rausch housed

Riccardo with a known sexual predator.

Riccardo might have responded to these facts by show-

ing that there is a strong correlation between prisoners’

professions of fear and actual violence. How many murders

(or homosexual assaults) occur in Centralia (or the Illinois

prison system) per hundred inmate-years of custody? How

many violent events were preceded by requests for protec-

tion? How many requests for protection were dishonored,

yet nothing untoward happened? Data along these lines

would have enabled a jury (and the court) to evaluate actual

risks. If violence is common at Centralia, and inmates have

good track records in identifying potential aggressors, then

guards who do not have their heads in the sand must

actually (that is, subjectively) understand the risk an

inmate faces when a protest is disregarded. But if violence

is rare, or if there is poor correlation between inmates’

alarums and subsequent violence, then Riccardo’s initial

protest would not have provided Rausch with actual

knowledge of an impending assault. The record does not

contain any evidence along these lines. At oral argument

Riccardo’s counsel expressed dismay at the idea that

inmates’ professions of fear should be put to an empirical

test. As counsel saw things, prisoners are unerringly ac-

curate in appreciating the risks they face and invariably

truthful in dealing with the staff. That seems to us unlikely;

and if it is so it must be proved to be so and was not.

Rausch also was entitled to believe that his assignment

of Garcia and Riccardo to share a cell would last for one

night only. During the next day shift the placement office,

armed with better information, was supposed to make a

fresh evaluation and, if appropriate, a new assignment.

Apparently that did not happen; the record does not show

10 No. 02-1961

why. (Maybe it did happen and the staff approved Rausch’s

action.) If Rausch knew that the staff charged with this re-

sponsibility routinely failed to carry it out, then he might

have been obliged to take additional precautions (such as

separate interviews of Garcia and Riccardo to probe these

issues more deeply) before making an assignment. Rausch

himself testified that separate interviews would have been

better practice, but the Constitution does not enforce all

“better practices”; this is one respect in which the eighth

amendment standard differs from the negligence standard.

But Riccardo does not contend, and the record does not

demonstrate, that disregard of the classification system

at Centralia was so common that Rausch was bound to

know that his assignment would last indefinitely. Nor was

Rausch bound to foresee that, if Riccardo was in genuine

fear, he would neglect to complain the next day, when he

readily could have done so. (Recall that Riccardo filed

two grievances on May 29 about other subjects.) Riccardo

testified that he was too terrified to protest and was put off

by Rausch’s assertion that prisoners in segregation can’t

refuse assignments; yet grievances are confidential (so

Garcia would not have known), and prisoners often appeal

over the head of a guard who has told them that something

can’t or won’t be done. Riccardo had already objected to, and

obtained the removal of, at least one cellmate assigned to

him in segregation. At all events, the question on the table

is what Rausch knew (or deliberately avoided learning) on

May 28; and there is no evidence that Rausch subjectively

believed that Riccardo would fail to use his opportunity to

seek further review the next day.

Illinois is free, if it wishes, to give prisoners veto power

over the identity of their cellmates. But the eighth amend-

ment does not do so of its own force, and prisoners cannot

use the Constitution to achieve this control indirectly by

making unsubstantiated assertions. The constitutional

question is not what Riccardo (initially) said, but what

No. 02-1961 11

Rausch actually believed. This record does not permit a

reasonable jury to find that Rausch knew or deliberately

disregarded the fact that his actions subjected Riccardo to

a substantial risk of serious harm, so the judgment is

REVERSED.

WILLIAMS, Circuit Judge, dissenting. While I agree that

Anthony Riccardo did in fact exhaust his administrative

remedies, I disagree with the majority’s decision to overturn

the judgment in this action as a reasonable jury had ample

evidence to find that Lieutenant Larry Rausch was deliber-

ately indifferent to the substantial risk of harm Riccardo

faced by being celled with Juan Garcia. Therefore, I respect-

fully dissent.

On May 30, 1997, while celled with Juan Garcia, a known

member of the Latin Kings, Riccardo’s head was forcibly

shaven by Garcia such that Riccardo was “bleeding pretty

bad.” Tr. I at 81-82. Garcia then attempted to sodomize

Riccardo; however, he was able to resist. Tr. II at 50. After

Riccardo resisted, Garcia ejaculated on Riccardo’s feet. Tr.

I at 83-84. Riccardo was then forced to perform oral sex on

Garcia for 15 to 20 minutes. Id. The assault ended when an

officer walked by the cell. As the majority notes, the events

which give rise to Lt. Rausch’s liability are limited to the

happenings on the evening of May 28, 1997, when Lt.

12 No. 02-1961

Rausch replaced Lt. Alemond1 as the lieutenant in charge

of the segregation and receiving units at Centralia prison.2

On appeal, Lt. Rausch contends, and the majority agrees,

that the evidence introduced at trial was legally insufficient

to support a finding of liability under the Eighth Amend-

ment. To sustain overturning a jury verdict, the record

must demonstrate no “legally sufficient evidentiary basis

for a reasonable jury to find for the non-moving party.”

Payne v. Milwaukee County, 146 F.3d 430, 432 (7th Cir.

1998). While undertaking this assessment, we analyze the

“the totality of the evidence,” Sheenan v. Donlen Corp., 173

F.3d 1039, 1043 (7th Cir. 1999), and are obliged to leave the

judgment undisturbed unless the moving party can show

that “no rational jury could have brought in a verdict

against him.” EEOC v. G-K-G, Inc., 39 F.3d 740, 745 (7th

Cir. 1994). It is not within the province of the appellate

courts to “reweigh the evidence.” Knox v. State of Indiana,

93 F.3d 1327, 1332 (7th Cir. 1996). Lastly, and most

importantly, all reasonable inferences must be analyzed in

the light most favorable to Riccardo as the non-moving

party. Sheenan, 173 F.3d at 1044.

In Farmer v. Brennan, 511 U.S. 825, 834 (1994) the Court

bifurcated the standard for Eighth Amendment liability

into an objective element and a subjective element. First,

the potential harm to the inmate must be objectively

serious. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298

1

Riccardo previously complained to Lt. Alemond that he feared

being celled with Garcia because he was a Latin King, however,

the record reveals that this previous complaint was not voiced to

Lt. Rausch and therefore may not support a finding of liability

against him.

2

Lt. Rausch testified that he had no recollection of the events

which transpired on May 28. Tr. III at 68. Thus, the jury was left

with Riccardo’s testimony concerning the events of that evening.

No. 02-1961 13

(1991)). Second, under the subjective prong, the prison

official must “deliberately disregard” this potential harm by

being “aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and

[also] draw[ing] the inference.” Id. at 838.

The second inquiry is a question of fact, sustainable

through circumstantial evidence, id. at 842, mandating

an “inquiry into a prison official’s state of mind.” Id. at 837

(quoting Wilson, 501 U.S. at 299). “A prisoner normally

proves actual knowledge of impending harm by showing

that he complained to prison officials about a specific threat

to his safety.” McGill v. Duckworth, 944 F.2d 344, 349 (7th

Cir. 1991) (reasoning that the scienter requirement is

satisfied when a prison guard, “[s]uspect[s] something is

true but shut[s] [his] eyes for fear of what [he] will learn” or

“[goes] out of [his] way to avoid acquiring unwelcomed

knowledge”).

The Supreme Court also cautioned that an “Eighth

Amendment claimant need not show that a prison official

acted or failed to act believing that harm actually would

befall an inmate; it is enough that the official acted or failed

to act despite his knowledge of a substantial risk of serious

harm.” Farmer, 511 U.S. at 842. Likewise, a claimant need

not prove that a prison official was aware of the specific

type of harm which befell the prisoner, only that the prison

official was aware that a substantial risk of some type of

danger existed. See Haley v. Gross, 86 F.3d 630, 643 n.33

(7th Cir. 1996) (applying Farmer, 511 U.S. at 843) (uphold-

ing jury verdict for $1.65 million based on a finding that

prison guards were deliberately indifferent by failing to

respond to a prisoner’s repeated request to be removed from

cell when his cellmate set fire to cell causing the cellmate’s

death and plaintiff’s severe burns). Thus, it was Riccardo’s

burden to show that Lt. Rausch actually knew that there

was a substantial risk that Garcia would harm Riccardo. Id.

However, Lt. Rausch would be shielded from liability if no

14 No. 02-1961

objectively serious risk existed, he was unaware of the

impending risk, McGill, 944 F.2d at 349, or he took reason-

able steps to abate it, whether successful or not, Farmer,

511 U.S. at 844.

Admittedly, there is evidence in the record to support a

finding that Garcia did not objectively pose a substantial

threat to Riccardo—namely, the fact that Garcia was also

placed in segregation for “enemy protection,” allegedly from

the Latin Kings, and that Garcia had no history of sexual

assault. However, that is not the standard by which this

case should be reviewed. The standard is whether there

exists a legally sufficient evidentiary basis for a reasonable

jury to find in favor of Riccardo. Payne, 146 F.3d at 432.

A jury could have reasonably believed that Lt. Rausch

was deliberately indifferent to the substantial risk of harm

to Riccardo. It is undisputed that Garcia was a member of

the Latin Kings. In their first interaction, Riccardo pri-

vately pulled Lt. Rausch aside and expressed his fear of

being celled with Garcia. Thus, Riccardo has presented

sufficient evidence to support the finding that Lt. Rausch

was made aware of the potential harm. See McGill, 944

F.2d at 349. The jury could have further found that Lt.

Rausch’s decision to question Riccardo in front of Garcia

was not a reasonable way to abate the potential danger

to Riccardo. Moreover, Lt. Rausch admitted that “[i]f

[Riccardo] would have told me he feared for his life, if he

refused housing or thought there was a threat to his safe-

ty[,] he would not have been placed—they would not have

been placed together.” Tr. III at 73. Thus, a jury could have

determined that Lt. Rausch’s admission, coupled with his

prior statements to Riccardo on May 28 that Riccardo could

not turn down a housing assignment in segregation, and

that Riccardo could not be moved to another cell due to a

lack of space, amounted to Lt. Rausch “deliberately”

No. 02-1961 15

avoiding learning that Riccardo was in danger.3 Such an

analysis avoids the use of ex post occurrences, such as the

fact that Garcia did in fact assault Riccardo, to sustain a

finding of deliberate indifference. Moreover, the fact that

Lt. Rausch is able to point to evidence in the record to sup-

port his position does not mandate reversal of the jury’s

verdict. Our sole duty as an appellate court is to analyze

whether the record supports the jury’s determination. It is

not our function to reweigh the evidence. Knox, 93 F.3d at

1332.

I am further troubled by the majority’s reliance on

Riccardo’s second statement to Lt. Rausch (made in front of

Garcia) to sustain overturning the jury’s verdict. As it

stands, the deliberate indifference inquiry is an inherently

factual determination, Farmer, 511 U.S. at 842, which re-

quires an “inquiry into a prison official’s state of mind,” id.

at 837.4 Thus, whether this second statement is used to

3

Significantly, Riccardo was actually housed in the receiving unit

as opposed to the segregation unit during the assault. The jury

heard testimony that the receiving unit is only used to house

inmates when the segregation unit is full. Tr. I at 24. Thus, Lt.

Rausch’s statement to Riccardo that there was no place else to

house him carried even greater weight. The jury also heard tes-

timony that it would have required more work for Lt. Rausch to

move Riccardo from a cell in receiving to a cell in segregation due

to the time of the alleged refusal and the occupancy of receiving

and segregation, Tr. III at 75-77, further supporting Riccardo’s

belief that any additional complaints about his cell assignment

would have been futile. Finally, the jury was told a prisoner may

be moved from one cell to another at any time. Tr. I at 25. There-

fore, the jury had ample evidence to support its finding that Lt.

Rausch’s actions rose to the level of deliberate indifference.

4

The Supreme Court’s discussion only further highlights the

propriety of allowing a jury to make this determination:

(continued...)

16 No. 02-1961

support the assertion that there was no “objective” risk to

Riccardo or that Lt. Rausch was stripped of his “subjective”

knowledge of the harm, it is clear that Lt. Rausch’s credibil-

ity and sincerity are integral components to the usefulness

of this interaction. In essence, the majority accepts Lt.

Rausch’s assertion that his second discussion with Riccardo

in front of Garcia was a sincere investigation of the poten-

tial risk to Riccardo. However, the jury found otherwise.

Further, when asked to review the defendant’s Rule 50

motion, the district court aptly stated:

[T]here is ample evidence from which to conclude

that Rausch’s attempt to ascertain the seriousness

of the threat was mere pretense, and that because

he did not want to go to the extra effort to find

different accommodations for Garcia, he recklessly

disregarded what he knew to be a dangerous sit-

uation. That decision to essentially disregard the

threat is where liability lies. A jury could have

reasonably inferred that Rausch crossed the line

from gross negligence to deliberate indifference

4

(...continued)

When instructing juries in deliberate indifference cases

with such issues of proof, courts should be careful to

ensure that the requirement of subjective culpability is

not lost. It is not enough to merely find that a reasonable

person would have known, or that the defendant should

have known, and juries should be instructed accordingly.

Id. at n.8; accord Lewis v. Richards, 107 F.3d 549, 556 (7th Cir.

1997) (Flaum, C.J., concurring) (“In view of the Supreme Court,

the safeguard against jurors whose outrage at prison violence

might lead them to sanction officials in the absence of an Eighth

Amendment violation is not a relaxed summary judgment stand-

ard, but jury instructions that properly convey the applicable law.

Lower federal courts, in my view, should exhibit a similar faith in

the willingness of juries to follow the law.”).

No. 02-1961 17

based on the ludicrousness of ‘asking’ each inmate

if he had a problem with the other. Credibility had

to have been the key to the jury’s analysis, thus the

Court cannot interject its own credibility determi-

nations; and if it could, having observed both par-

ties’ testimony, it may well have reached the same

conclusion as the jury. [. . .]

[A] prison official will only be freed from liability if

he responded reasonably to the risk. As mentioned

above, Rausch’s method of questioning could be

perceived as deliberately forcing plaintiff to make a

Hobson’s choice.

Riccardo v. Rausch, No. 99-CV-372-CJP, at 15 (S.D. Ill.

Mar. 7, 2002) (order denying F.R.C.P. Rule 50(b) motion)

(citations omitted) (emphasis in original). By taking Lt.

Rausch at his word, the majority’s decision has the effect of

immunizing prison officials from liability based on po-

tentially unreasonable or contrived actions, and sanctions

Lt. Rausch’s admittedly unreasonable behavior.

In an attempt to break the causal link between Lt.

Rausch’s actions and the harm to Riccardo, the majority

asserts that “the risk that Riccardo professed to fear (a ‘hit’)

did not come to pass.” Majority opinion at 7. The inquiry,

however, is not whether “a hit” was actually put out on

Riccardo as that would constitute the sort of impermissible

ex post determination eschewed by the majority. Rather, the

focus is solely on whether Lt. Rausch was made aware that

a substantial risk of some type of danger existed prior to the

actual event. See Haley, 86 F.3d at 643 n.33. Under the

majority’s analysis are we to presume that Riccardo’s pleas

for protection would only guard against murder or physical

beating? For the purposes of an Eighth Amendment

inquiry, in the prison context, I find no real distinction

between “a hit” and a sexual assault.

The majority also frees Lt. Rausch of liability based on

the assertion that Lt. Rausch was under no duty to foresee

18 No. 02-1961

that Riccardo would not complain to other prison officials

between May 28, the date of Lt. Rausch and Riccardo’s

interaction, and May 30, when the assault actually took

place. The record reveals, however, that Garcia closely

watched Riccardo’s actions impeding Riccardo’s ability to

have a private conversation with prison guards outside of

Garcia’s presence. Tr. I at 76-82; Tr. II at 42-43. Further,

when Riccardo attempted to alert prison officials, Garcia

responded with escalating violence. Tr. II at 46-47. In light

of Riccardo’s reasonable belief that he could not refuse his

housing assignment and that there was no other available

cell, see note 3, supra, Riccardo did not realistically have

the ability to complain to other guards without alerting

Garcia and incurring his wrath.

The majority’s decision to question the adequacy of

Riccardo’s pleas for protection by requiring evidence con-

cerning the overall number of sexual assaults at Centralia

prison is also curious. See Lewis, 107 F.3d at 556 (Flaum,

C.J., concurring) (“[T]he majority’s emphasis upon the ade-

quacy of Lewis’s pleas for protection strikes me as in-

appropriate.”). The prison recognizes that “some prisoners

are manipulative and cry ‘wolf’,” majority opinion at 5,

and has created a procedure to deal with this recurring pos-

sibility. A prisoner’s request for a cell transfer is always

honored if the prisoner alleges a fear for his personal safety,

Tr. I at 44, but the prison deals with potential frivolity by

treating every request as a potential disciplinary violation.

Id.5 Thus, the prison has created a procedure whereby a

prisoner is moved first, and questions concerning the sin-

cerity of the request are asked later. In addition, the

inquiry under the Eighth Amendment is an individualized

one, i.e., Riccardo was required to prove, based on the

5

Major Lawrence Jefferson was clear that “if [a prisoner is] just

refusing housing just to refuse housing with no reason, then we'll

move him for that, but he’ll get a ticket for that.” Id.

No. 02-1961 19

individual facts of his case, that he was subjected to an

objectively serious harm and that Lt. Rausch was “aware of

facts from which the inference could be drawn that a

substantial risk of serious harm exist[ed].” Farmer, 511

U.S. at 838.

Finally, though unpursued by the majority, defendant

argues that should a constitutional violation be found, he is

nevertheless entitled to qualified immunity. According to

Lt. Rausch, previous case law must show that “no rea-

sonable prison official would have believed it was constitu-

tional either to cell an inmate with someone who gave

conflicting answers when asked (in the other inmate’s

presence) if he had a problem with that inmate, or to rely

on a policy requiring review of all placement decisions for

suitability within hours.” Appellant’s Brief at 33. However,

the Supreme Court in Hope v. Pelzer, expressly rejected the

notion that in order for a right to be “clearly established”

previous case law must contain facts which are “materially

similar” to the facts contained in the underlying action. 536

U.S. 730, 739 (2002); see also Burgess v. Lowery, 201 F.3d

942, 944-45 (7th Cir. 2000). Rather, the Court focused on

whether the prior case law would place officers on notice

that their conduct is unlawful. Id. It is clear that Farmer

put prison guards on notice that they have a duty, under

the Eighth Amendment, to protect inmates from being

gratuitously beaten or raped by other inmates. See id. at

833; see also Haley, 86 F.3d at 646 (rejecting qualified

immunity defense in light of Farmer decision which further

elucidated “deliberate indifference” standard).

In light of the aforementioned, I must agree with the trial

court that a reasonable jury had ample evidence to sustain

this verdict and thus I respectfully dissent.

20 No. 02-1961

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—2-27-04