Velez, David v. Johnson, Michael

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-1943

DAVID VELEZ,

Plaintiff-Appellee,

v.

MICHAEL JOHNSON and WISCONSIN

COUNTY MUTUAL INSURANCE CORPORATION,

Defendants-Appellants.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-C-299—Aaron E. Goodstein, Magistrate Judge.

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ARGUED OCTOBER 28, 2004—DECIDED JANUARY 13, 2005

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Before RIPPLE, WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge. In September of 1999, David Velez

was violently assaulted by his cellmate at the Milwaukee

County jail. He filed suit under 42 U.S.C. § 1983 alleging

that Michael Johnson, a deputy sheriff, violated his consti-

tutional rights by failing to adequately respond when Velez,

seeking protection, pushed an emergency call button in his

cell prior to the attack. Velez also alleged a negligence claim

2 No. 04-1943

under Wisconsin law.1 Johnson filed a motion for summary

judgment asserting a qualified immunity defense, but the

district court (Magistrate Aaron E. Goodstein sitting by

consent) denied the request. Johnson, as is his right, has

filed this interlocutory appeal challenging that decision.

First, a decidedly unpleasant set of facts, which we view

in the light most favorable to Velez. See Saucier v. Katz, 533

U.S. 194 (2001); Finsel v. Cruppenink, 326 F.3d 903 (7th

Cir. 2003). Velez was incarcerated at the jail in July of 1999

as a pretrial detainee on charges of robbery and concealing

identity. He was kept apart from some inmates because he

was a cooperating witness for the state in a double homicide

case. Velez was housed in a cell on the jail’s 5th floor within

its general population. In late August, Velez got a new

cellmate, Roberto Zayas, who was being held on charges of

sexual assault and battery by a prisoner. At the time, Velez

was asked whether he got along with Zayas, and Velez said

that he did not know him. Soon after moving in, Zayas

began acting “funny.” For instance, he talked to himself,

paced around the cell, commented on Velez’s appearance,

and organized Velez’s clothing. This made Velez uncomfort-

able and he requested a transfer. None came.

The assault occurred on September 5. That night, Johnson

was working on Velez’s floor, along with deputies Allen

Bultman and Chad Haldemann. At around 10:30 p.m.,

Bultman and Haldemann made their initial rounds, while

Johnson remained at the central control station in the hall-

way just outside of the pod home to Velez’s cell. Guards

working at the control center, among other things, are

1

The complaint also names as a defendant Wisconsin County

Mutual Insurance Corporation, Johnson’s insurer, whose liability

for negligence is purely derivative of Johnson’s. See Wis. Stat.

§ 803.04(2); Rich Prods. Corp. v. Zurich Am. Ins. Co., 293 F.3d

981, 983 (7th Cir. 2002).

No. 04-1943 3

supposed to monitor emergency calls from inmates confined

to their cells. Jail procedures generally require guards to

respond to emergencies by going to the scene, though as far

as we know there are no specific guidelines about responding

to an emergency call button.

Back to the attack. At the same time that Bultman and

Haldemann were performing their rounds, Zayas placed a

razor blade to Velez’s neck. Velez rather subtly tried to get

the guards’ attention—he didn’t loudly scream for help be-

cause he was afraid of getting his neck slashed—but his

effort was unsuccessful. After the guards departed, Zayas

continued to hold the razor to Velez’s neck. At that point,

Velez pressed the emergency call button hoping for help.

Once again, Velez was careful with his words, telling John-

son that he was “not getting along” with Zayas. Johnson

asked Velez if he had requested a transfer. Velez replied

“yes” but said that there was a conflict. Johnson took no

further action. In particular, he didn’t go to check out the

situation or ask the other guards to do so.

Zayas then anally raped Velez, bit his back several times,

and cut his neck. Afterward, Velez again hit the emergency

call button and solicited other inmates to do the same. This

time Johnson took action, instructing Bultman and

Haldemann to investigate. When the guards arrived at the

cell, they discovered Velez crying hysterically. Doctors later

confirmed that Velez was raped, bitten, and cut. DNA tests

identified Zayas as the perpetrator.

Johnson appeals the district court’s denial of his motion

for summary judgment based on qualified immunity. “We

must resolve a qualified immunity issue as early as possible

in the proceedings because it is an ‘immunity from suit

rather than a mere defense to liability.’ ” McCann v.

Mangialardi, 337 F.3d 782, 785 (7th Cir. 2003) (quoting

Saucier, 533 U.S. at 200-01) (emphasis in original omitted).

As set out by the Supreme Court in Saucier, we apply a two-

4 No. 04-1943

step approach in evaluating a qualified immunity defense. As

applicable here, we first determine whether, taken in the

light most favorable to Velez, the facts alleged demonstrate

that Johnson violated a constitutional right. Saucier, 533

U.S. at 201. If so, we ask whether that right was clearly

established. Id.

Velez alleges that Johnson’s failure to adequately respond

to the emergency call button violated his constitutional

rights. The law is clear: “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.” Mayoral

v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001) (citation

omitted). Velez, as we said, was a pretrial detainee at the

time of the assault; therefore, his claim arises under the

Fourteenth Amendment’s Due Process Clause, not the

Eighth Amendment. But as we have noted time and again,

there is “little practical difference between the two stan-

dards.” Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000).

This is so because it would be bizarre indeed to afford greater

protection to a convicted prisoner than to a pretrial de-

tainee. But in asserting a constitutional claim based on a

failure to prevent an assault from another inmate, it is not

enough for Velez to show that Johnson failed to prevent the

attack. Instead, he must demonstrate that Johnson acted

with “deliberate indifference,” i.e., that he was subjectively

aware of, but disregarded, a serious risk to Velez’s health or

safety. Farmer v. Brennan, 511 U.S. 825, 833 (1994);

Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir.), cert.

denied, 124 S. Ct. 531 (2003).

Viewing the facts in the light most favorable to the

plaintiff, we agree with the district court that Velez laid out

facts that, if true, could support a finding of deliberate

indifference. The crux of Velez’s complaint is that he had a

razor placed to his neck, signaled Johnson for help in the

only way he could, but was effectively ignored and subse-

No. 04-1943 5

quently raped. Obviously, being raped while a razor is at

one’s neck is a serious harm.

Consider the situation—two men, who are strangers to

each other, locked together in a small cell for hours. For

many people on the outside, even sharing a room for one

night with a stranger at a Holiday Inn would be an unpleas-

ant experience. And if that stranger was facing criminal

sexual assault charges, the experience would be much more

than merely unpleasant. And in a jail, the weaker of two

cellmates has no real opportunity to protect himself against

an attack. That’s the situation Velez was in on September

5.

We believe that Velez has set forth facts establishing that

Johnson knowingly disregarded warnings that a serious

harm could occur. For one thing, Velez pushed an “emer-

gency call button,” a clear indication that an emergency was

at hand. And Johnson had no reason to doubt that there

was an emergency, as Velez had no history of crying wolf or

abusing the call button. Moreover, Velez specifically told

Johnson that he was having a conflict with Zayas, but

Johnson did nothing. And finally, Johnson was instructed

to personally respond to emergencies—and for good reason,

given what happened. If these allegations are true, a jury

could find that Johnson acted with deliberate indifference.

Johnson argues that he could not have violated Velez’s

constitutional rights because he had no specific awareness

that Zayas had a razor to Velez’s throat or that he was plan-

ning a rape. We disagree. Johnson did not have to know the

specifics of the danger to be culpable. Indeed, accepting

Johnson’s position would essentially reward guards who put

their heads in the sand by making them immune from

suit—the less a guard knows the better. That view is in-

consistent with Farmer. What matters is that Johnson was

aware of a serious risk of harm in some form, be it assault

or the more serious transgression that actually occurred.

And just because Velez did not volunteer detailed informa-

6 No. 04-1943

tion does not mean that Johnson was not made aware of a

serious risk. Indeed, a jury could well find that the vague

nature of Velez’s complaint made it even more incumbent

on Johnson to investigate further. And as it turned out,

Velez could not have provided any more information to

Johnson without risking a slashed neck.

Velez has also met the second Saucier requirement that

the constitutional right be clearly established. Before lia-

bility will attach, “[t]he contours of that right must be suf-

ficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). Although Velez and

Johnson disagree over how the constitutional right at issue

here should be characterized, we believe it is plainly the right

to be free from deliberate indifference to rape and assault.

There can be no debate that this right was clearly estab-

lished at the time. See Farmer, 511 U.S. at 833 (prison

officials have duty to protect inmates from rape and assault).

Just because Johnson is not immune from suit, however,

does not mean that a jury will find him liable for violating

Velez’s constitutional rights. What it does mean is that

Velez has set forth facts that, if accepted as true, support a

viable deliberate indifference claim. It is up to a jury to

decide whether Johnson bears some responsibility for the

attack Velez had to endure.

In addition to appealing the district court’s denial of sum-

mary judgment on qualified immunity, Johnson also seeks

review of its denial on the merits. He contends that there

are no triable issues of fact regarding whether he acted with

deliberate indifference. But at this point we do not have

jurisdiction to consider whether Johnson violated Velez’s

constitutional rights—we may only examine the merits

through the prism proscribed in Saucier, nothing more. See

Johnson v. Jones, 515 U.S. 304, 313 (1995); Anderson v.

Cornejo, 355 F.3d 1021, 1022-23 (7th Cir. 2004); Krein v.

No. 04-1943 7

Norris, 309 F.3d 487, 493 (8th Cir. 2002). And because we

believe that the court’s resolution of the qualified immunity

issue was sound, its judgment is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-13-05