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—AMENDED JULY 12, 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

2 No. 02-1961

Garcia, a pairing that should have lasted only until the

placement officers on the day shift could review matters.

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.

No. 02-1961 3

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

objective was to have Garcia prosecuted. (Riccardo deemed

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

4 No. 02-1961

anally raped by his cellmate at Cook County Jail, shortly

after his conviction for aggravated assault. When he arrived

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 assis-

tance 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

No. 02-1961 5

assignment. That was Riccardo’s last contact with Rausch.

As we have mentioned, nothing untoward happened that

evening or the 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 attrib-

uted 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 circum-

stances. All that can be expected is that guards act re-

sponsibly 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 prison-

ers 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

6 No. 02-1961

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.

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 infer-

ence 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

No. 02-1961 7

and the merits, is incompatible with Saucier and its

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

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 state-

ment to believe. Riccardo argues, and the jury evidently

concluded, that Rausch should have believed the first

statement, communicated in private, rather than the sec-

ond, 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 him-

self, 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 clean

No. 02-1961 9

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.

Lest this observation be thought to leave prisoners with-

out protection from assaults by others with “clean” records,

we add that there may be other ways to show both an

objectively serious risk and the guards’ knowledge of that

risk. For example, Riccardo might have attempted to dem-

onstrate that there is a strong correlation between pris-

oners’ 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 cus-

tody? How many violent events were preceded by requests

for protection? 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 even though Riccardo was unable to

show that Rausch should have deemed Garcia to present an

especial risk. 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. That leaves only

Riccardo’s say-so, and for reasons we have already given a

prisoner’s bare assertion is not enough to make the guard

subjectively aware of a risk, if the objective indicators do

not substantiate the inmate’s assertion.

Rausch also was entitled to believe that his assignment

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

10 No. 02-1961

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

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 tes-

tified 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-

No. 02-1961 11

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

Rausch actually believed. Some prisoners are manipulative,

some are mistaken, and some are not only honest but also

accurate. The Constitution does not oblige guards to assume

(on pain of absolute liability if an assault later occurs) that

all prisoners are in the third category; Farmer articulates

a different, and more demanding, standard, preserving

room for both independent judgment and honest mistake on

the guards’ part. 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 off 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

12 No. 02-1961

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.

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.

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

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

(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

14 No. 02-1961

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

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

No. 02-1961 15

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”

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.

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.

16 No. 02-1961

at 837.4 Thus, whether this second statement is used to

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 dif-

ferent accommodations for Garcia, he recklessly

disregarded what he knew to be a dangerous situ-

ation. That decision to essentially disregard the

threat is where liability lies. A jury could have rea-

sonably inferred that Rausch crossed the line from

4

The Supreme Court’s discussion only further highlights the

propriety of allowing a jury to make this determination:

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

gross negligence to deliberate indifference 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 determinations; and if it

could, having observed both parties’ 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 potentially 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 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

adequacy of Lewis’s pleas for protection strikes me as

inappropriate.”) 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 possibil-

ity. A prisoner’s request for a cell transfer is always hon-

ored 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

sincerity 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

Rausch, previous case law must show that “no reasonable

prison official would have believed it was constitutional

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

Before FLAUM, Chief Judge, and POSNER, EASTERBROOK,

RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS,

and WILLIAMS, Circuit Judges.†

Plaintiff-appellee filed a petition for rehearing and

rehearing en banc on March 12, 2004. In response to this

petition, the panel has amended its opinion; the amend-

ments are reflected in the immediately preceding revised

opinion. A majority of the judges on the panel voted to deny

rehearing. A judge called for a vote on the petition for

rehearing en banc, but a majority of the active judges did

not favor rehearing en banc. Accordingly, the petition is

denied.

RIPPLE, Circuit Judge, with whom ROVNER, DIANE P.

WOOD and WILLIAMS, Circuit Judges, join, dissenting from

the denial of rehearing en banc. Today, the court allows to

stand the decision of a panel majority that imposes on

prison inmates a new and impossibly high standard of proof

for establishing deliberate indifference in prison condition

cases. The panel majority strongly suggests that, in order

to show deliberate indifference, a prisoner must not only

identify with particularity the harm he fears but also

bolster his own account with a special showing containing

material such as statistical evidence of a “strong correlation

between prisoners’ professions and actual violence.”

Riccardo v. Rausch, slip op. at 9. Neither of these require-

†

Circuit Judge Sykes did not participate in the consideration or

decision of this case.

No. 02-1961 21

ments find support in circuit or Supreme Court precedent.

Consequently, the panel majority’s imposition of these

requirements not only does violence to our Eighth Amend-

ment jurisprudence, but it also effectively amends, without

any legislative mandate, the standard for judgment as a

matter of law under Federal Rule of Civil Procedure 50 for

cases brought by prisoners.

1.

Mr. Riccardo told Lt. Rausch that the Latin Kings had put

out a “hit” on him and that placement in a cell with Garcia,

a known Latin King, would endanger his life. Two days

later, Mr. Riccardo was forced to perform sexual acts with

Garcia. The panel majority nevertheless concludes that this

evidence is not sufficient to establish that Lt. Rausch

should have appreciated a serious risk to Mr. Riccardo

because the “risk from which Riccardo sought protection

was not realized.” Id. at 7-8. In short, in the panel major-

ity’s view, because Mr. Riccardo was raped, but not killed,

Lt. Rausch cannot be held liable for his failure to respond

to Mr. Riccardo’s fears.

The Supreme Court in Farmer v. Brennan, 511 U.S. 825

(1994), eschewed this sort of distinction. The Court made

clear that a prison official cannot escape

liability for deliberate indifference by showing that,

while he was aware of an obvious, substantial risk

to inmate safety, he did not know that the com-

plainant was especially likely to be assaulted by the

specific prisoner who eventually committed the

assault. The question under the Eighth Amendment

is whether prison officials, acting with deliberate

indifference, exposed a prisoner to a sufficiently

substantial “risk of serious damage to his future

health,” Helling [v. McKinney, 509 U.S. 25, 35

22 No. 02-1961

(1993),] and it does not matter whether the risk

comes from a single source or multiple sources, any

more than it matters whether a prisoner faces an

excessive risk of attack for reasons personal to him

or because all prisoners in his situation face such a

risk.

Id. at 843 (emphasis added). Just as Mr. Riccardo did not

need to identify the member of the Latin Kings who would

mete out the retaliatory action that he feared, he did not

need to identify the specific sort of bodily harm that would

be inflicted upon him. Indeed, our case law makes crystal

clear that such precision with respect to identifying risks is

not required:

While there must be some link between the risk of

which the official was aware and the harm that

actually occurred—as it would be unfair to hold offi-

cials liable for risks they could not have anticipated

simply because they ignored other unrelated

risks—prison officials need not be specifically aware

of the precise risk that unfolds.

Haley v. Gross, 86 F.3d 630, 643 n.33 (7th Cir. 1996).

Mr. Riccardo feared reprisal by the Latin Kings. Garcia, a

member of that gang, committed an act of physical violence

upon Mr. Riccardo. The fact that Mr. Riccardo did not suffer

a worse fate does not negate the seriousness or the validity

of the threat to Mr. Riccardo that was communicated to Lt.

Rausch.

2.

The panel majority further opines that Mr. Riccardo

might have overcome the infirmity in his case by showing

that there is a strong correlation between prisoners’

professions of fear and actual violence. How many

murders (or homosexual assaults) occur in Central-

No. 02-1961 23

ia (or the Illinois prison system) per hundred

inmate-years of custody? How many violent events

were preceded by requests for protection? How

many requests for protection were dishonored, yet

nothing untoward happened? Data along these lines

would have enabled a jury (and the court) to evalu-

ate actual risks. . . .

Riccardo, slip op. at 9. Neither this court, other courts of

appeals, nor the Supreme Court ever has required a show-

ing that expressed fears and violence were related in some

statistically significant way. It always has been sufficient

that the prisoner articulated his fear, that the prison

official believed the inmate, but that the official failed to

take reasonable actions to protect the prisoner from harm.

We often have stated that

[i]f “the circumstances suggest that the defendant-

official being sued had been exposed to information

concerning the risk and thus ‘must have known’

about it, then such evidence could be sufficient to

permit a trier of fact to find that the defendant-

official had actual knowledge of the risk.”

Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001)

(quoting Farmer, 511 U.S. at 842-43; emphasis added). The

question of whether the prison official had the “requisite

knowledge is a question of fact” reserved for the jury. Id.

Requiring the sort of statistical evidence suggested by the

panel majority in order to establish the existence of such a

risk imposes on inmates a practical burden that is im-

possible for prisoners to meet. Prisoners certainly should

not be relieved of meeting their burden of proof, but, like

other litigants, they ought to be permitted to come forward

with any evidence, direct or circumstantial, that is proba-

tive of the knowledge of prison officials concerning threats

reported to them. The judicial inquiry ought not be whether

there was statistical evidence from which a jury could

conclude that the threat was “real” or should be taken

seriously, but whether the record contains any evidence

24 No. 02-1961

from which the jury reasonably could conclude that the

prison official knew that the prisoner was subject to a risk

of serious harm. Moreover, there indeed may be times and

circumstances when the representation of the prisoner will

be a sufficient basis to require action on the part of the

prison official. I see no reason for a categorical rule that,

under no circumstances, can such a representation be suf-

ficient.

There is no question that Mr. Riccardo articulated to Lt.

Rausch his fear of physical violence if celled with a member

of the Latin Kings. In violation of Centralia’s own pol-

icy—one presumably founded on a recognized correlation

between complaints and violence—Lt. Rausch did not move

Mr. Riccardo to another cell; instead, Lt. Rausch forced Mr.

Riccardo to articulate any concerns in the presence of the

very source of Mr. Riccardo’s fears, Garcia. As the district

court determined in rejecting the defendant’s Rule 50

motion, there was

ample evidence from which to conclude that

Rausch’s attempt to ascertain the seriousness of the

threat was a mere pretense, and that because he

did not want to go to the extra effort to find dif-

ferent accommodations for Garcia, he recklessly

disregarded what he knew to be a dangerous situ-

ation. That decision to essentially disregard the

threat is where liability lies. A jury could have rea-

sonably inferred that Rausch crossed the line from

gross negligence to deliberate indifference 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, this Court

cannot interject its own credibility determinations;

and if it could, having observed both parties’ tes-

timony, it may very well have reached the same

conclusion as the jury.

R.64 at 15-16.

No. 02-1961 25

The panel majority makes clear its disagreement with the

jury’s view of the evidence. The evidence in favor of Mr.

Riccardo may not be overwhelming, but it is certainly not

legally insufficient. When the evidence is viewed in the

light most favorable to Mr. Riccardo, as it must be, a jury

could reasonably conclude that Lt. Rausch knew of a serious

risk of harm to Mr. Riccardo but failed to take reasonable

steps to prevent it. The panel majority may have come to a

different conclusion if it had sat as the trier of fact, but its

disagreement in that respect is certainly not an appropriate

occasion for revising Eighth Amendment and Rule 50

standards.

The panel majority opinion not only deprives Mr. Riccardo

of his right to a jury trial, it also takes a very significant

step in depriving individuals incarcerated in this circuit of

a realistic opportunity to meet their burden of proof in these

cases. I therefore respectfully dissent from the denial of

rehearing en banc.

WILLIAMS, Circuit Judge, with whom RIPPLE, ROVNER,

and DIANE P. WOOD, Circuit Judges, join in dissenting from

the denial of rehearing en banc. The majority’s opinion has

incorrectly resolved and unjustifiably reframed both the

Eighth Amendment standard for deliberate indifference as

well as the Rule 50 standard to set aside a jury verdict.

With regard to the Eighth Amendment inquiry, the

majority opinion highlights a major gap in the case law.

Particularly, what is required to prove the objective prong

of the deliberate indifference standard? The Court in

26 No. 02-1961

Farmer v. Brennan, 511 U.S. 825, 834 n.3 (1994) did not

address this issue. On page 9, the majority asks a plethora

of questions which go to this issue, i.e., the overall threat of

violence at the prison. Perhaps the dearth of case law on

this point is due in part to the general knowledge that

prisons are dangerous places where rape and assault occur

frequently and therefore threats, such as the one in this

case, must be handled with more caution than exhibited by

Rausch. See Prison Rape Elimination Act of 2003,42 U.S.C.

§ 15601-02 (2004) (“The purpose of this chapter is to: (1)

establish a zero-tolerance standard for the incidence of

prison rape in prisons in the United States. (6) increase the

accountability of prison officials who fail to detect, prevent,

reduce, and punish prison rape.”) (“Congress makes the

following findings: (2) Insufficient research has been

conducted and insufficient data reported on the extent of

prison rape. . . . Many inmates have suffered repeated as-

saults. (13) The high incidence of sexual assault within

prisons involves actual and potential violations of the

United States Constitution.”). Centralia Prison’s policy, to

move prisoners first and discipline them later for baseless

requests, is further proof of the objective danger. Again,

evidence of the prison’s policy does not hold Rausch liable

for mere negligence; rather, it reflects the understood en-

vironment in the prison, as accepted by prison officials,

guards, and administrators, that threats of violence have a

high probability of leading to attacks. Riccardo, therefore,

proved that the asserted danger was objectively serious.

Under the more specific inquiry of Farmer’s subjective

prong, the prison official must “deliberately disregard” a

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.

This seems to me to create two questions: (1) what facts

were presented to Rausch, and (2) did he accept them as

true or did his actions evince his intent to purposefully

No. 02-1961 27

ignore those apparent facts? Once again, the inquiry is a

particularized one, focused on the officer’s knowledge.

Without repeating what I have already set out in my dis-

sent, the jury was presented with evidence that Riccardo

told Rausch he did not want to be celled with Garcia be-

cause he was in fear of an attack. “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). Therefore, contrary to the majority’s assertion,

the first part of this inquiry is satisfied.

Accepting the majority’s point that Riccardo’s mere “say-

so” is not enough to establish Eighth Amendment liability,

there were plenty of “objective indicators” to support the

jury’s finding that Rausch’s actions amounted to deliberate

indifference. The jury heard evidence that Rausch put

the two men in front of each other to determine whether a

problem existed. It is this act, which the majority uses to

exonerate Rausch from liability. However, it is this very act

which evinces Rausch’s deliberate indifference as found by

the jury and reiterated by the district court. What is more,

this court has already defined such action as unacceptable

under the Eighth Amendment. Id. at 349 (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 jury found that no

reasonable guard would think that asking Riccardo to admit

fear of Garcia with Garcia present, would illicit an honest

response. Again, it is this act that crosses the line. Recog-

nizing that these specific actions were inconsistent with the

Eighth Amendment would not create per se liability for

prison officials. Therefore, I respectfully dissent from the

court’s decision not to rehear this case en banc.

28 No. 02-1961

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-12-04