Borello, Ronald T. v. Allison, Richard

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3515

RONALD T. BORELLO,

Plaintiff-Appellee,

v.

RICHARD ALLISON, LISA GALES,

JOHN LIEFER, and JOHN INMAN,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 02 CV 51—J. Phil Gilbert, Judge.

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ARGUED MARCH 30, 2006—DECIDED MAY 11, 2006

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Before FLAUM, Chief Judge, and MANION and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. Plaintiff-Appellee Ronald Borello

(“Plaintiff”) was an inmate in Illinois state prison. He

brought suit under 42 U.S.C. § 1983 against prison employ-

ees Richard Allison, Lisa Gales, John Liefer, and John

Inman (collectively, “Defendants”), alleging that

they violated his Eight Amendment rights by failing to

protect him from his cellmate, Roberto Abadia (“Abadia”).

Defendants moved for summary judgment, arguing that

they were entitled to qualified immunity. The magistrate

judge recommended that summary judgment be granted in

favor of Defendants. The district court rejected the magis-

2 No. 05-3515

trate judge’s report and recommendation and denied

summary judgment to Defendants. Defendants appeal. For

the following reasons, we reverse the district court’s

judgment, and remand the case for entry of summary

judgment in favor of Defendants on qualified immunity

grounds.

I. Background1

Plaintiff was an inmate at Menard Correctional Center,

housed in the One North Cellhouse. His cellmate at the

time relevant to this appeal was Roberto Abadia. Defen-

dants were assigned to work in Plaintiff’s cellhouse, Allison

as a casework supervisor, Liefer as a corrections officer,

Inman as a department captain, and Gales as a nurse.

On several occasions in early January 2001, another

inmate, Michael Woodrome, talked to Inman, Allison, and

Gales and expressed concern that Abadia and Plaintiff were

assigned as cellmates. Around the same time, Plaintiff told

Gales that he wanted to be assigned to a different cell,

because Abadia was “nuts.” Gales reported Plaintiff’s

comments to Allison and Inman, who told Gales that they

were already aware of the situation. Allison and Inman

made statements to Gales that led her to believe that

Plaintiff had already declined an offer to be transferred to

a different cell.

On January 11, 2001, Abadia starting behaving in a

“particularly strange manner.” He acted confused and paced

in the cell. Also, for long stretches of time, he would place

his arms against the cell wall and repeatedly strike his

head against his arms. This behavior continued until at

least January 15, 2001.

1

The following facts are presented in the light most favorable

to Plaintiff, the party resisting summary judgment.

No. 05-3515 3

On January 12, 2001, Abadia attempted to strike Plaintiff

with his fist. Plaintiff stopped the blow before it landed.

Abadia settled down and Plaintiff did not report the

incident, feeling that the conflict had been adequately

defused.

At approximately 9:30 a.m. on January 16, 2001, Abadia

woke up Plaintiff and said he was “going home.” Abadia

began packing. Corrections officer Liefer observed Abadia’s

behavior and asked Abadia to explain himself. Abadia

said he was packing to go home. Plaintiff asked Liefer to

call someone to the cell to help Abadia. Liefer called nurse

Gales and asked her to take Abadia to see a psychiatrist.

Gales came to the cell and asked Abadia what he was doing.

Abadia said he was leaving and his family was waiting for

him in the parking lot. Gales realized that Abadia had a

considerable amount of time left on his sentence. Plaintiff

told Gales that Abadia had recently tried to strike him.

Gales called Dr. Vallabhaneni, a psychiatrist, described

Abadia’s behavior, and arranged for Abadia to visit the

doctor. Liefer removed Abadia from the cell and took him

for an examination.

About fifteen minutes after being taken to the psychia-

trist, Abadia was returned to the cell and then taken to the

exercise yard for approximately one hour. While Abadia was

in the exercise yard, Plaintiff asked to see department

captain Inman. Plaintiff was taken to Inman’s office around

10:30 a.m. Casework supervisor Allison was in Inman’s

office when Plaintiff arrived. Allison had told Inman about

the situation between Plaintiff and Abadia. Plaintiff

explained to Allison and Inman that Abadia had packed his

belongings and said he was going home, and that Abadia

had been banging his head against his arms on the cell

wall. Plaintiff asked Inman if he could be moved to a

different cell, and Inman responded “no.” Plaintiff asserts

that Inman also called him a “bug,” laughed at him, and

told him to go back to his cell. Plaintiff acknowledges,

4 No. 05-3515

however, that Inman told him that he could choose either to

go back to the cell he shared with Abadia or be placed in

segregation. Plaintiff chose to return to his cell.

Plaintiff was taken back to his cell and Abadia returned

from the exercise yard. Inman and Allison questioned

Abadia for approximately five minutes, and then left the

cell. Plaintiff and Abadia both immediately went to sleep.

Approximately one week later, on January 23, 2001,

Abadia hit Plaintiff on the side of the face with a radio,

causing serious injury to his left eye.

Plaintiff brought a § 1983 suit against Allison, Gales,

Liefer, and Inman, alleging violations of his Eighth Amend-

ment rights. Plaintiff alleged that Defendants

were deliberately indifferent to the danger posed to him

because they left him in a cell with Abadia. Defendants

moved for summary judgment on the basis of qualified

immunity. Defendants argued that they did not ignore a

risk of harm to Plaintiff, but responded reasonably to his

needs by having Abadia examined by a psychiatrist and

interviewing the two inmates. Alternatively, Defendants

argued, it was not clearly established at the time of the

incident that their actions constituted an Eighth Amend-

ment violation.

The magistrate judge recommended that the district court

grant summary judgment for Defendants. The magistrate

judge found that even if Defendants were aware of the risk

of harm to Plaintiff, they took reasonable steps in response

to the risk.

The district court rejected the magistrate judge’s report

and recommendations. The district court found that there

was sufficient evidence that Abadia presented a serious risk

of harm to Plaintiff. The district court also determined that

there was sufficient evidence that Defendants knew of the

risk Abadia posed to Plaintiff, but did nothing in response.

The district court found relevant that one week before

No. 05-3515 5

Abadia hit Plaintiff with the radio, Plaintiff asked prison

officials to move him out of the shared cell. The district

court also emphasized that Plaintiff told Defendants how

strangely Abadia had been acting in the previous weeks.

Based on this evidence, the district court denied Defen-

dants’ qualified immunity defense, finding that there was

a material question of fact as to whether Defendants’

response was reasonable.

II. Discussion

We review de novo the district court’s determination of

qualified immunity. See McGrath v. Gillis, 44 F.3d 567, 569

(7th Cir. 1995). We will affirm the district court’s judgment

if we find that Plaintiff is “present[ed] a version of the facts

that is supported by the evidence and under which defen-

dants would not be entitled to qualified immunity.” Mar-

shall v. Allen, 984 F.2d 787, 793 (7th Cir. 1993) (quoting

Hall v. Ryan, 957 F.2d 402, 404 (7th Cir. 1992)) (internal

quotation marks omitted).

Under the qualified immunity analysis, government

officials performing discretionary functions are immune

from suit if “their conduct ‘could reasonably have been

thought consistent with the rights they are alleged to have

violated.’ ” Sornberger v. City of Knoxville, 434 F.3d 1006,

1013 (7th Cir. 2006) (quoting Anderson v. Creighton, 483

U.S. 635, 638-39 (1987)). Qualified immunity protects a

defendant from liability as well as from the burden of

standing trial. For that reason, courts should determine

as early on in the proceedings as possible whether a

defendant is entitled to qualified immunity. See id.; see also

Saucier v. Katz, 533 U.S. 194, 201 (2001).

In evaluating a claim of qualified immunity, a court

conducts a two-step inquiry: “First the court must deter-

mine whether the disputed conduct, as alleged, violates a

constitutional right; second, the court must determine

6 No. 05-3515

whether that right was ‘clearly established’ at the time of

the alleged conduct.” Wernsing v. Thompson, 423 F.3d 732,

742 (7th Cir. 2005) (citing Saucier, 533 U.S. at 201). The

Court is required to consider the two steps in the proper

order. See Saucier, 533 U.S. at 201 (“If no constitutional

right would have been violated were the allegations estab-

lished, there is no necessity for further inquiries concerning

qualified immunity. On the other hand, if a violation could

be made out on a favorable view of the parties’ submissions,

the next, sequential step is to ask whether the right was

clearly established.”).

Before we reach the merits of the appeal, however, we

must consider whether we have jurisdiction to consider

Defendants’ arguments. The Court’s jurisdiction over an

appeal from a denial of a qualified immunity defense is

limited: the defendant “may not appeal a district court’s

summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a ‘genuine’

issue of material fact.” Board v. Farnham, 394 F.3d 469,

476 (7th Cir. 2005) (internal citation and quotation marks

omitted). Put another way, “it is inappropriate for us to

review a district court’s determination about the sufficiency

of the evidence.” Id.

However, the Court may “review ‘abstract issues of law.’ ”

Id. (quoting Johnson v. Jones, 515 U.S. 304, 319-20 (1995)).

The Court’s “jurisdiction extends to interlocutory appeals

such as this one challenging a district court’s determination

that a set of facts demonstrate a violation of ‘clearly estab-

lished’ constitutional law and preclude the defendants from

proffering a qualified immunity defense.” Id. “When

deciding whether a public official is entitled to qualified

immunity, ‘we simply assume the disputed facts in the light

most favorable [to the plaintiff], and then decide, under

those facts, whether the [defendants] violated any of [the

plaintiff’s] clearly established constitutional rights.’ ” Id.

(quoting Coady v. Steil, 197 F.3d 727, 731 (7th Cir. 1999));

No. 05-3515 7

see also Nanda v. Moss, 412 F.3d 836, 838 n.1 (7th Cir.

2005); Johnson, 515 U.S. at 311.

Taking the facts in the light most favorable to Plaintiff,

we now consider whether Defendants violated Plain-

tiff’s clearly established Eighth Amendment rights. De-

fendants had a duty as prison officials to protect Plaintiff

“from violence at the hands of other inmates.” Washington

v. LaPorte County Sheriff’s Dep’t, 306 F.3d 515, 517 (7th

Cir. 2002). However, “not every injury within a prison is an

Eighth Amendment violation.” Id.; see also Haley v. Gross,

86 F.3d 630, 640 (7th Cir. 1996).

To establish an Eight Amendment failure to protect claim,

a plaintiff must show 1) that he suffered an objectively

“sufficiently serious” injury; and 2) that he was “incarcer-

ated under conditions posing a substantial risk of serious

harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Additionally,

a prison official may be liable “only if he knows that

inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable

measures to abate it.” Farmer, 511 U.S. at 847. That

the officer had actual knowledge of impending harm can

be inferred from circumstantial evidence. Id. at 842;

James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir.

1992); Peate v. McCann, 294 F.3d 879, 882 (7th Cir.

2002). Proving deliberate indifference, however, re-

quires more than a showing of negligent or even grossly

negligent behavior. Farmer, 511 U.S. at 835; James,

956 F.2d at 699. Rather, the corrections officer must

have acted with the equivalent of criminal recklessness.

Farmer, 511 U.S. at 836-37; James, 956 F.2d at 700;

Jackson [v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th

Cir. 2002)]. Indeed, an officer who actually knew of a

substantial risk to a detainee’s safety is free from

liability “if [he] responded reasonably to the risk, even

8 No. 05-3515

if the harm ultimately was not averted, because in that

case it cannot be said that [he was] deliberately indiffer-

ent.” Peate, 294 F.3d at 882 (citing Farmer, 511 U.S. at

847, 114 S.Ct. 1970). “The test of deliberate indifference

ensures that the mere failure of the prison official to

choose the best course of action does not amount to a

constitutional violation.” Id. (citing Farmer, 511 U.S. at

844).

Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005).

In this case, Defendants admit that there are facts

indicating they had knowledge Plaintiff faced a risk of

serious harm. They argue, however, that they responded

reasonably to the risk. Defendants emphasize that they took

Abadia to see the psychiatrist, Dr. Vallabhaneni, as soon as

Plaintiff complained about Abadia’s behavior on January

16, 2001. Dr. Vallabhaneni examined Abadia and deter-

mined that he was fit to return to his cell. Defendants

maintain that they were justified in relying on Dr.

Vallabhaneni’s medical opinion. Defendants also point out

that they interviewed Plaintiff and Abadia on January 16

and determined that the situation was under control.

The district court found there was genuine issue of

material fact as to whether Defendants were justified in

relying on Dr. Vallabhaneni’s decision to send Abadia back

to his cell. The district court found relevant that there

was no evidence regarding 1) what the doctor told Defen-

dants; 2) whether the doctor’s opinion was reasonable; or 3)

what the defendants told the doctor before he examined

Abadia. The district court determined that without this

evidence, there was no way to determine whether Defen-

dants’ reliance on the doctor’s orders was reasonable.

We do not question the district court’s reading of the

record. However, we conclude as a matter of law that the

evidence is insufficient to find that Defendants responded

unreasonably to the risk of harm posed to Plaintiff. As the

party resisting summary judgment, Plaintiff had the burden

No. 05-3515 9

to go beyond the pleadings and “affirmatively demonstrate,

by specific factual allegations, that there is a genuine issue

of material fact which requires trial.” East-Miller v. Lake

County Highway Dep’t, 421 F.3d 558, 561 (7th Cir. 2005)

(quoting Beard v. Whitley County REMC, 840 F.2d 405, 410

(7th Cir. 1998)) (internal quotation marks omitted). Plain-

tiff has not explained why it was unreasonable for Defen-

dants to rely on Dr. Vallabhaneni’s medical opinion that it

was safe to return Abadia to the cell he shared with Plain-

tiff. For instance, Plaintiff has not alleged that Dr.

Vallabhaneni had insufficient information to decide that it

was safe for Abadia to return to his cell, that Dr.

Vallabhaneni’s medical opinion was unreasonable, or that

Dr. Vallabhaneni told Defendants anything that would

indicate that it was unsafe for Abadia and Plaintiff to

continue sharing a cell. Plaintiff had an opportunity to

depose Defendants, but is unable to point to any testimony

supporting his position that Defendants should have

disregarded Dr. Vallabhaneni’s medical opinion.

Additionally, the undisputed evidence shows that Defen-

dants did not rely solely on Dr. Vallabhaneni’s opinion in

deciding that Plaintiff could remain in the cell with Abadia.

In addition to taking Abadia to see a psychiatrist, they

interviewed the two inmates to assess the situation.

Defendants determined that the tension between the

inmates had been diffused. After Defendants took these

actions, both men immediately went to sleep in the cell. The

attack on Plaintiff did not occur until a week later, and

there was no evidence that Plaintiff complained about

Abadia between January 16 and the time of the attack.

The evidence shows that Defendants responded immedi-

ately to Plaintiff’s complaints about Abadia, even if their

response turned out to be inadequate. This is in contrast to

other cases in which we have found Eighth Amendment

violations based on failure to protect, in which a prison

official ignored an inmate’s complaint that he feared

10 No. 05-3515

violence from his cellmate or did not respond to actual

violence between inmates. See, e.g., Velez v. Johnson, 395

F.3d 732, 736-37 (7th Cir. 2005) (deliberate indifference

found when prison guard failed to respond to an emergency

call made by an inmate who was being attacked by his

cellmate); Haley, 86 F.3d at 642 (deliberate indifference

found where prison officer ignored as many as seven

complaints by an inmate about his ongoing feud with his

cellmate and his cellmate’s “crazy” and “intimidating”

behavior and never checked in on the cellmates).

We emphasize that a prison official is not entitled to

qualified immunity simply because he or she takes any

action in response to a risk of harm to an inmate—that

response must be reasonable. In this case, we find that

Defendants’ response was “reasonably calculated to

quickly restore order to a chaotic situation.” Fisher, 414

F.3d at 664 (prison official was not deliberately indiffer-

ent when he responded to inmates’ attack on the plaintiff

inmate by placing all the inmates against a wall, even

though the plaintiff was then stabbed by another inmate,

because his response was reasonable under the circum-

stances). After Abadia returned from seeing Dr.

Vallabhaneni, both Abadia and Plaintiff immediately went

to sleep, leading Defendants to believe that any tension

between the cellmates was diffused. Under these circum-

stances, Defendants’ decision to leave Abadia and Plain-

tiff in the same cell “was not ‘so dangerous that the deliber-

ate nature of [Defendants’] actions [could] be inferred.’ ” Id.

(quoting Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765

(7th Cir. 2002)); see also Watts v. Laurent, 774 F.2d 168, 172

(7th Cir. 1985).

Defendants may have acted negligently by not moving

Plaintiff to another cell. But as we have repeatedly stated,

“[m]ere negligence or even gross negligence does not

constitute deliberate indifference.” Snipes v. DeTella, 95

F.3d 586, 590 (7th Cir. 1996) (citing Wilson v. Seiter, 501

No. 05-3515 11

U.S. 294, 305 (1991)). Failure to protect an inmate from

harm “violates the Eighth Amendment’s prohibition of cruel

and unusual punishment only if ‘deliberate indifference by

prison officials [to the prisoner’s welfare] effectively con-

dones the attack by allowing it to happen [.]’ ” Lewis v.

Richards, 107 F.3d 549, 553 (7th Cir. 1997) (quoting Haley,

86 F.3d at 640). Based on the record below, we find that

Plaintiff has failed to show that Defendants effectively

condoned Abadia’s attack on him.2 Defendants therefore are

entitled to qualified immunity.

This should be the end of our inquiry. Because Defendant

has not shown that his constitutional rights were violated,

we need not move to the second step of the qualified

immunity analysis: whether those rights were clearly

established at the time of the attack. We note, however,

that the district court improperly simplified this second

step, finding that “[i]t is untenable to say that prison

officials don’t know what actions in this area are illegal.”

This analysis relieved Plaintiff of his burden of proof. See

Saucier, 533 U.S. at 201.

The inquiry into whether a right is clearly established

“must be undertaken in light of the specific context of the

case, not as a broad general proposition.” Brosseau v.

2

Plaintiff asserts in his brief that Inman gave him a choice

between going to segregation or staying in his cell with Abadia.

Plaintiff decided to remain in the cell. Although Plaintiff may

have viewed being placed in segregation as an unfair punishment,

“it is common to place prisoners in segregation for their own

protection.” Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002). We

cannot consider this issue, however, because neither

party discussed it in the proceedings below. In Plaintiff ’s brief,

he cites to his own deposition testimony for the fact that he

could have moved to segregation. However, only excerpts of the

deposition are included, and the page to which he cites is not

part of the record on appeal.

12 No. 05-3515

Haugen, 534 U.S. 194, 198 (2004) (internal citation and

quotation marks omitted). It is insufficient for a plaintiff

simply to point to a recognized constitutional right and

claim that the right has been violated. A plaintiff is re-

quired to show that a violation of that right has been found

in factually similar cases, or that the violation was so clear

that an official would realize he or she was violating an

inmate’s constitutional rights even in the absence of an on-

point case. See Wernsing, 423 F.3d at 742; see also Ulichny

v. Merton Comm. Sch. Dist., 249 F.3d 686, 706 (7th Cir.

2001) (“A right is not clearly established if officers of

reasonable competence could disagree on the issue.”);

Anderson, 483 U.S. at 640 (“The contours of the right must

be sufficiently clear that a reasonable official would under-

stand that what he is doing violates that right.”).

Although it is well established that a plaintiff can bring

an Eighth Amendment claim based on a prison official’s

deliberate indifference to a substantial risk of serious harm,

there is still a question whether the facts of this case are

sufficient to establish deliberate indifference. The purpose

of the second step of the qualified immunity analysis is to

ensure that prison officials will not be held personally liable

for their official conduct when they were not aware that

their conduct violated any of an inmate’s constitutional

rights. Plaintiff has not attempted to compare this case to

any factually similar ones, or argue that the violation was

so obvious that Defendants should have been on notice that

their actions constituted deliberate indifference.

III. Conclusion

For the foregoing reasons, we REVERSE the order of the

district court and REMAND with directions to enter sum-

mary judgment for Defendants on qualified immunity

grounds.

No. 05-3515 13

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-11-06