Grieveson, Joseph R. v. Anderson, Frank J.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-4681

JOSEPH R. GRIEVESON,

Plaintiff-Appellant,

v.

FRANK J. ANDERSON,1 Marion County

Sheriff, PATRICK COMMISKEY, CHRIS

BOOMERSHINE, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 02 C 1862—John Daniel Tinder, Judge.

____________

ARGUED SEPTEMBER 21, 2007—DECIDED AUGUST 18, 2008

____________

Before EASTERBROOK, Chief Judge, and KANNE and

ROVNER, Circuit Judges.

KANNE, Circuit Judge. During Joseph Grieveson’s de-

tainment at the Marion County, Indiana, Jail, he allegedly

1

At the time this suit was filed, Jack Cottey was the Sheriff of

Marion County. Frank Anderson is the current Sheriff, and

Anderson is automatically substituted as the defendant

under Federal Rule of Appellate Procedure 43(c).

2 No. 05-4681

suffered several attacks at the hands of other inmates, and

one attack by an unnamed jail guard. He brought suit

against numerous government defendants in their indi-

vidual and official capacities, raising constitutional and

state-law claims. The United States District Court for

the Southern District of Indiana dismissed some of the

claims and granted summary judgment in favor of the

defendants for the remaining claims. We affirm the dis-

trict court’s grant of summary judgment in favor of the

Marion County Sheriff on the official-capacity claims.

However, with respect to the individual-capacity claims

against individual defendants, we affirm in part and

reverse in part. There is a genuine issue of material fact

surrounding whether one jail guard was deliberately

indifferent to Grieveson’s safety needs, and there is a

genuine issue of material fact about whether three jail

guards were deliberately indifferent to Grieveson’s med-

ical needs. Finally, we reverse the district court’s dis-

position of Grieveson’s negligence claims against certain

defendants under Indiana law.

I. HISTORY

We review the district court’s entry of summary judg-

ment in favor of the defendants de novo. See Scott v.

Edinburg, 346 F.3d 752, 755 (7th Cir. 2003). Given this

standard of review, we must construe all inferences in

favor of the nonmoving party, in this case Grieveson, id.,

and recount the facts in the light most favorable to him,

Steen v. Myers, 486 F.3d 1017, 1019 (7th Cir. 2007).

For about eleven months between May 2000 and Janu-

ary 2002, Grieveson, a Canadian citizen, was a federal

pretrial detainee being held at the Marion County Jail on

No. 05-4681 3

charges of illegal reentry of a deported alien. During the

first six months of his tenure at the jail in Indianapolis,

Grieveson shared a four-person cell with Art Schlichter,

a former quarterback for the Indianapolis Colts. During

that same time period, a federal grand jury in Indianapolis

was investigating Schlichter’s ongoing involvement in

gambling schemes—particularly schemes involving

Linda Wagoner, Schlichter’s attorney, who was al-

legedly smuggling items into the jail for Schlichter. One

of Grieveson’s friends on the outside, Norman Buff,

was “involved with the Grand Jury in catching [Wagoner].”

Out of concern for Grieveson, Buff had spoken with

Sergeant Chris Boomershine on several occasions to

request that Grieveson be moved to another location

within the jail. Grieveson believed that he was con-

sidered a “snitch” within the jail because of his associa-

tion with Buff.

Grieveson was moved out of Schlichter’s cell on Novem-

ber 18, 2000, into a large “barracks-style” area that housed

approximately 45 inmates. Shortly thereafter, on Novem-

ber 30, Grieveson was beaten unconscious by another

inmate. Grieveson states that throughout the beating,

the aggressor called Grieveson a “snitch” and said the

beating was a “favor for Schlichter.” The next day around

noon, Grieveson told Officer Smith that his nose was

broken, that he was bleeding down his throat, and that he

was in intense pain. Smith responded that she would “let

‘Medical’ know.” Grieveson proceeded that afternoon to

tell defendants, Officers Cornell, Duncan, and Highbaugh,

of his injuries, but he did not receive any medical assis-

tance. Even Grieveson’s sister called the jail to urge them

to provide Grieveson with medical care. Then, on Decem-

ber 2, Grieveson complained of his injuries again to Offi-

4 No. 05-4681

cer Duncan; she had Grieveson fill out a “medical call

card.”

On December 3, Grieveson was taken to the hospital,

where it was confirmed that he had a broken nose. He

was prescribed pain medication and advised to meet

with a plastic surgeon. When back at the jail, Grieveson

requested his prescribed medication, but a jail guard

refused to give it to him, saying, “You don’t need it. Be a

man and stop whining.” Eventually, Grieveson was

given all of his prescribed pain killers at once. A stronger

prisoner took the medication away from him, and as a

result, Grieveson was left without medication for a

week. Grieveson submitted a timely grievance to jail

officials, reporting the delays of Officers Cornell, Duncan,

and Highbaugh in obtaining medical help for him after

his injuries. The jail’s response stated, “it is unfortunant

[sic] that it took that long to send you to [W]ishard . . . .”

The jail disposed of the grievance as “ujs” (presumably

meaning unjustified).

Grieveson suffered a second inmate attack on Decem-

ber 31, 2000. The jail’s activity report states that Grieveson

said he had “slipp[ed] in puddled water.” But Grieveson

avows that when he was alone with the officers, he told

them he had been assaulted and that he wanted to be

moved to a different cell block. At one point after the

December 31 assault, Grieveson requested that he re-

ceive only one dose of medication at a time—instead of

his entire prescription at once. A jail medical record

dated January 9, 2001, confirms that Grieveson made a

request for intermittent disbursements of his prescrip-

tion medication.

On or about January 17, 2001, Grieveson suffered a

third attack by another inmate. Grieveson alleges that two

No. 05-4681 5

days passed before he was taken to the hospital—on

January 19, 2001—and medical attention came only after

his family members made numerous calls to the jail about

his injuries. The jail activity records indicate that

Grieveson suffered the injuries on January 19. In addition

to bruising and bleeding injuries, Grieveson’s tooth was

broken during this assault, and he had to have it sur-

gically removed. Grieveson reported that he “layed [sic]

there with my face beaten in for two (2) days in severe

pain and suffering before receiving medical treatment.”

Grieveson filed a grievance about the third attack, again

stating that his medical treatment was unduly delayed. The

response from the jail was: “this is an unfortunant [sic]

situation but you did go and get your tooth fixed at

[W]ishard. [T]he medical office sees a lot of inmates on

any given day and sometimes they do miss some.” Again,

the disposition was “ujs” (unjustified). Grieveson was

given his entire prescription of pain medication at one

time—only to have it stolen by another inmate.

Grieveson’s fourth set of injuries—on January 22,

2001—allegedly came after a jail guard slammed

Grieveson’s arm in a steel door and threw him repeatedly

against the bars in a basement holding cell. Apparently

the guard told Grieveson to stop complaining and stop

“causing trouble.” Grieveson was taken to the hospital,

where he was treated for a shoulder injury. He was pre-

scribed pain medication and told that initial treatment

included applying cold packs to the injury. At the jail,

Grieveson requested ice packs but jail officials told him,

“we don’t give those out here.” The jail guards again gave

Grieveson his entire prescription of pain medicine at one

time. The medicine was again stolen from Grieveson by

another inmate.

6 No. 05-4681

In early February 2001, Grieveson was assaulted by

another inmate who “pummeled” him in the face because

he was snoring. And then in early March, Grieveson was

assaulted for the sixth time, after he tried to defend his

food and other personal items from other inmates.

Grieveson alleges that Officer Highbaugh witnessed the

sixth assault, and later told Grieveson “to learn how to

fight harder or don’t come to jail.” On March 6, Grieveson

told a jail medical officer that he had been in an “alterca-

tion” two days before. He complained of pain in his

ribs and arm.

On March 14, 2001, Grieveson filed a grievance with the

jail about his assaults in general and his fears. He specifi-

cally asked to be moved to a safer block:

As you know I have been beaten and assaulted

over 6 times and [through] no fault of mine. I am

real scared of my life in here and the guards are

even afraid to come into the block[.] How do you

think we fell[?] I feel like I am [losing] my mind

in here and going to have a breakdown. I ask you

to move me to another jail or at the least move me

to a safer block.

At the same time, Grieveson’s friend, Buff, was also trying

to secure Grieveson relocation. In March, Buff spoke

with Officer Boomershine in person and explained that

he feared for Grieveson’s safety and he urged Boomershine

to relocate Grieveson.

The seventh attack Grieveson suffered, on March 21,

2001, was by far the worst. A fellow inmate, Robert

White, hit Grieveson in the face and slammed his face

into a steel table, knocking Grieveson unconscious.

Grieveson stated in an affidavit that at the time of the

attack, White “was angry over losing in a card game.” Once

No. 05-4681 7

he woke up, Grieveson waited 90 minutes until a guard

was within shouting range. He also called his sister to ask

her to call for help. Grieveson suffered serious injuries

including a broken left eye socket, damage to his optic

nerve, and injuries to his ribs, face, jaw, and nose. The

attacker was allegedly a former client of Wagoner,

Schlichter’s attorney. Grieveson first told the jail guards

that he slipped in the shower, but when he was out of

the earshot of other inmates, he claims he told them he

was attacked.

Grieveson saw a plastic surgeon on March 28, 2001, and

was told that he needed immediate surgery to correct the

damage to his eye. Surgery was scheduled for some

point in the next few days, but Grieveson was not told the

exact day and time of the surgery. Unfortunately,

Grieveson did not have surgery as originally scheduled

because on March 30, 2001, he was moved from Marion

County Jail to Park County Jail, and then to the Federal

Medical Center in Minnesota (FMC). In the process of the

moves, Grieveson’s medical records were not supplied

immediately to the new detention facilities. When the FMC

did receive his medical records—approximately 35 days

after Grieveson left the Marion County Jail—it was as a

result of Grieveson’s attorneys’ efforts to have them

forwarded. According to Grieveson, by the time he saw

another doctor about his eye, it was too late to correct

the damage.

When Grieveson returned to the Marion County Jail

approximately nine months later, he had a prescription

for pain medicine. He alleged that he was given, at one

time, an entire bottle of 100 pills of Ultram—a prescription,

narcotic-like pain reliever. See webmd.com, Ultram

Oral, http://www.webmd.com/drugs/drug-11276-Ultra

8 No. 05-4681

m+Oral.aspx?drugid=11276&drugname=Ultram+Oral (last

visited Aug. 8, 2008). Two inmates stole the pills from

Grieveson, slapping his mouth in the process. Grieveson

did not put up a fight and questioned why “medical

staff and jail guards [would] give an inmate in jail with

45 other inmates . . . about 100 pain pills knowing [the

recipient] was in severe pain wearing a patch over [his]

left eye and knowing [he] had no way of locking up

anything.”

Grieveson was convicted and placed in federal prison to

serve out his sentence. Grieveson brought suit against

various defendants including the Marion County Sheriff;

Marion County Jail Commander Patrick Commiskey;

Marion County Sergeant Chris Boomershine; Marion

County Jail Officers Highbaugh, Cornell, and Duncan; and

United States Marshal Frank Anderson, in their official

and individual capacities, as well as the City of Indianapo-

lis.2 The action combined state-law negligence and con-

stitutional claims, and federal claims under 42 U.S.C.

§ 1983 and 28 U.S.C. § 1350 (the Alien Tort Claims Act). The

United States District Court for the Southern District

of Indiana dismissed some claims and granted summary

judgment in favor of the defendants on the remaining

claims. This appeal ensued.

2

Grieveson initially brought two suits against two groups of

defendants—one in state court, the other in federal court. The

state court suit was removed to federal court and the cases

were consolidated. The claims against Frank Anderson in his

individual capacity and those against the City of Indianapolis

were dismissed before the summary judgment stage in a

May 25, 2004 order, and are not at issue in this appeal.

No. 05-4681 9

II. ANALYSIS

On appeal, Grieveson argues that the district court’s

opinion was fundamentally flawed and that, consequently,

we should reverse summary judgment and remand for

further proceedings. He also challenges the district

court’s resolution of his official- and individual-capacity

claims, arguing that his Eighth Amendment rights

were violated both by the unconstitutional customs and

practices of the Marion County Jail, and by the deliberate

indifference of jail officers to his safety and medical

needs. Finally, Grieveson argues that the district court

erred by granting summary judgment to the defendants

on his state-law negligence claims.

A. Sufficiency of the District Court Opinion

Because we are reviewing the district court’s decision

de novo and we decide the merits of Grieveson’s substan-

tive arguments, it is not necessary for us to respond to

Grieveson’s technical challenges to the district court’s

opinion. See Smith v. Potter, 445 F.3d 1000, 1009 n.20 (7th

Cir. 2006) (“[W]e need not resolve this issue to dispose of

[the] appeal . . . .”); see also Springer v. Durflinger, 518

F.3d 479, 483 (7th Cir. 2008).

Grieveson does, however, raise a valid point concerning

the district court’s dismissal of the official-capacity

claims against the Marion County Sheriff. The district

court stated that the previous “dismissal of claims against

the City of Indianapolis also put[ ] to rest claims against

the defendant individuals in their official capacities.” In

so deciding, the district court may have conflated the

City of Indianapolis and the Marion County Sheriff’s

Department, viewing them as the same governmental

10 No. 05-4681

entity. Such a mixup is understandable in light of the

evolving consolidation status of the City of Indianapolis

and Marion County, and their law enforcement divisions.

See IMPD History, http://www.indygov.org/eGov/

IMPD/About/History/home.htm, last visited Aug. 8,

2008; see also Ind. Code §§ 36-3-1-1 to 36-3-4-24; Scott

v. Consol. City of Indianapolis, 833 N.E.2d 1094, 1100 (Ind.

Ct. App. 2005).

But the consolidation of the City and County, as well as

the consolidation of their law enforcement departments,

has been only partial—the Jail Division of the Marion

County Sheriff’s Department has not merged with the

City of Indianapolis Police Department. See City-County

General Ordinance No. 100, § 281-612 (2005). Further, the

Sheriff’s Department has always remained a separate

entity from the City of Indianapolis. Therefore, the dis-

missal of the City of Indianapolis in Grieveson’s litigation

did not effectuate the dismissal of Grieveson’s official-

capacity claims against the Marion County Sheriff. Even

though the district court dismissed claims against the

Sheriff in his official capacity, it also decided that, as a

matter of law, “the pleadings and evidentiary record

here do not support a claim of municipal liability.” We

will analyze that decision de novo, and turn now to the

official-capacity claims.

B. Section 1983 Official-Capacity Claims

Grieveson’s claims against the Sheriff in his official

capacity are treated as claims against Marion County itself.

Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir.

2006). Governmental entities cannot be held liable for the

unconstitutional acts of their employees unless those

No. 05-4681 11

acts were carried out pursuant to an official custom or

policy. Id. See also Monell v. Dep’t of Soc. Servs, 436 U.S. 658,

694 (1978). “The ‘official policy’ requirement for liability

under § 1983 is to ‘distinguish acts of the municipality from

acts of employees of the municipality, and thereby make

clear that municipal liability is limited to action for

which the municipality is actually responsible.’ ” Estate of

Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 515 (7th

Cir. 2007) (quoting Pembaur v. City of Cincinnati, 475

U.S. 469, 479 (1986)). See also Lewis v. City of Chicago, 496

F.3d 645, 656 (7th Cir. 2007) (“Misbehaving employees are

responsible for their own conduct, ‘units of local gov-

ernment are responsible only for their policies rather than

misconduct by their workers.’ ” (quoting Fairley v. Fermaint,

482 F.3d 897, 904 (7th Cir. 2007))).

In order to survive summary judgment on a § 1983

official-capacity claim, the plaintiff must present evid-

ence demonstrating the existence of an “official policy,

widespread custom, or deliberate act of a county deci-

sion-maker of the municipality or department.” Wagner

v. Washington County, 493 F.3d 833, 836 (7th Cir. 2007).

Further, the plaintiff must show that the official policy or

custom was the cause of the alleged constitutional viola-

tion—the “ ‘moving force’ behind it.” Estate of Sims, 506

F.3d at 514 (quoting City of Canton, Ohio v. Harris, 489 U.S.

378, 389 (1989)).

Grieveson contends that in spite of the jail’s formal

written grievance policy, the actual grievance process

was a sham and provided no effective way for inmates to

communicate their safety concerns, complaints, and fears

to jail officials. According to Grieveson, the absence of an

adequate grievance procedure left him more susceptible

to assaults and thus deprived him of his Eighth Amend-

12 No. 05-4681

ment right to be free from cruel and unusual punishments.

See U.S. Const. amend. VIII. Grieveson also points to the

jail’s method of dispensing prescription medicine as an

official policy or custom that violated his constitutional

rights by placing him at a direct risk of harm.

Grieveson means to argue under the Due Process Clause

of the Fourteenth Amendment, U.S. Const. amend. XIV,

because he was a pre-trial detainee while at the Marion

County Jail and was therefore not subject to punishment at

all. See Brown v. Budz, 398 F.3d 904, 910 (7th Cir. 2005); see

also Guzman v. Sheahan, 495 F.3d 852, 856 (7th Cir. 2007).

Either way, the inquiry under both provisions of the

Constitution is essentially the same. Id.; Weiss v. Cooley,

230 F.3d 1027, 1032 (7th Cir. 2000) (noting that there is

“little practical difference between the two standards.”);

Henderson v. Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999).

1. The Jail’s Grievance Procedure

The posture of Grieveson’s grievance-procedure argu-

ment is that the Marion County Jail’s grievance process

itself “consciously created the conditions in which harm was

almost certain to occur.” (emphasis in Grieveson’s brief).

He believes that “the jail’s illusory grievance process

was directly responsible for the constitutional depriva-

tions he suffered when he was brutally assaulted

multiple times . . . .” Grieveson has to take this stance in

order to maintain a § 1983 claim against the Sheriff in his

official capacity, because there must be a “direct causal

link between a policy or custom of the Sheriff’s Depart-

ment and the alleged constitutional violations.” Estate of

Sims, 506 F.3d at 515 (citing City of Canton, 489 U.S. at 385).

Grieveson’s position also seems necessary in light of our

No. 05-4681 13

case law specifically denouncing a Fourteenth Amendment

substantive due-process right to an inmate grievance

procedure. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.

1996) (“With respect to the Due Process Clause, any right

to a grievance procedure is a procedural right, not a

substantive one. Accordingly, a state’s inmate grievance

procedures do not give rise to a liberty interest protected

by the Due Process Clause.” (internal citations omitted)).3

To describe Grieveson’s contention more succinctly, he

argues: (1) he suffered beatings at the hands of other

prisoners; (2) the jail had an ineffective grievance proce-

dure; (3) the grievance procedure caused the beatings.

The weakness of Grieveson’s argument has less to do

with evidence than with logic. He argues that because of

the ineffective grievance procedure, prisoners beat him. But

it is impossible to see how Grieveson’s A causes his B. If

Grieveson showed a prison policy or custom that effec-

tively allowed prisoners to beat one another, he might have

had a successful claim against the County. Or, if

he demonstrated that there was absolutely no opportu-

nity for prisoners to express their safety concerns to

jail officials, perhaps he could prevail. But, the evid-

3

Grieveson acknowledges that there is no substantive liberty

interest in a bona fide prison grievance process, see Antonelli,

81 F.3d at 1430, but he notes that there is a procedural right.

However, the procedural right is of no use to Grieveson, because

it exists to ensure that prisoners and detainees can access the

courts. See id. Grieveson makes no claim that the grievance

procedure as implemented prevented him from accessing the

courts. See id. (“Mr. Antonelli’s invocation of the judicial pro-

cess indicates that the prison has not infringed his First Amend-

ment right to petition the government for a redress of griev-

ances.”).

14 No. 05-4681

ence here shows that Grieveson had opportunities to

verbally express his fears and concerns to jail officials,

and that he did so on several occasions (e.g., “I did inform

the Defendants [I had a problem] on the trips to the

hospital”). Grieveson is trying to shoehorn a claim for

deliberate indifference of particular jail officials into an

official-capacity claim by pointing to a prison policy that

has no causal connection to the harms Grieveson suf-

fered at the hands of other inmates. Seeing as the jail did

not have to employ any grievance procedure whatsoever

under the Fourteenth Amendment, see id., it is hard to

understand how the implementation of one—even one

that did not function perfectly—would actually cause

prisoner beatings. It is only “ ‘when execution of a gov-

ernment’s policy or custom . . . inflicts the injury that

the government as an entity is responsible under

§ 1983.’ ” Woodward v. Corr. Med. Servs. of Ill., Inc., 368

F.3d 917, 927 (7th Cir. 2004) (quoting Estate of Novack ex

rel. v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000)).

Grieveson has not presented any evidence showing

that the Marion County Jail’s grievance procedure—the

formal policy itself and the allegedly “sham” manner in

which it was carried out—caused his injuries. See Estate

of Sims, 506 F.3d at 515. This § 1983 official-capacity

claim against the Sheriff fails for lack of causation. See

Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.

2005) (“At any rate, we fail to see how the report-filing

policy or practice was likely to lead to [the inmate’s]

death.”); Butera v. Cottey, 285 F.3d 601, 608 (7th Cir. 2002)

(“However, Butera has failed to show how the Sheriff’s

policies caused these activities because even if there

were 24-hour video surveillance of the cellblocks, de-

tainees could still dim the lights or hide under blankets.”).

No. 05-4681 15

2. The Jail’s Method of Dispensing Prescription Medica-

tion

The other official practice Grieveson challenges is the

method by which the Marion County Jail dispensed

prescription medications. He argues that the jail main-

tained a customary practice of “failing to control inmate

prescriptions” such that inmates were given entire bottles

of medication at once. Grieveson attests that he had

his medications stolen from him by other inmates at

least four times.

To survive summary judgment on this official-capacity

claim against the Sheriff, Grieveson again has to present

evidence demonstrating that the method of prescription

distribution was undertaken pursuant to an official jail

policy or widespread custom. Perkins v. Lawson, 312

F.3d 872, 875 (7th Cir. 2002). Grieveson must point to

“either an express policy which caused the injury, a

widespread practice that is so well-settled as to amount

to a policy, or [show] that the sheriff had the final

policymaking authority for the decisions regarding the

medical treatment [he] received.” Id. He must also present

evidence demonstrating that the method of prescription

dispensing amounts to an unconstitutional practice. See

Antonelli, 81 F.3d at 1427; see also Calhoun v. Ramsey,

408 F.3d 375, 381 (7th Cir. 2005) (stating the inquiry into

official-capacity liability to be whether the County em-

ploys an “impermissible” method of operation).

Grieveson makes a widespread custom argument—that

jail officials would give out an inmate’s entire prescrip-

tion at one time, in full view of other prisoners, placing

in harm’s way the prisoner with the prescription.

Grieveson specifies in his affidavits four instances in

which jail guards gave him his entire prescription at

16 No. 05-4681

once, and he explains the consequences he suffered as a

result (e.g., “On January 2, 2002, the medication that was

given to me (Ultram) was taken from me with force (100

pills). Yes, a trained medical staff and officers gave me

the whole bottle of pain medication to keep with me in

the cell-block. I was slapped in the mouth then the med-

ication was taken by two other inmates, this time I never

put up any fight.”). A January 9, 2001 jail medical record

shows that Grieveson complained about the method of

prescription dispensing, and asked for his pills one at a

time. Grieveson does not, however, present any evid-

ence relating to inmates other than himself, aside from

the general statement in his June 30, 2004 affidavit:

If and when a prisoner was prescribed a medica-

tion, pain pills, etc., even a narcotic, the jail

staff—not the medical staff— would pass out the

medication (narcotics) in front of all the prisoners

to see who got what. And Defendants would give

the prisoner the whole prescription at times,

sometimes the whole bottle of pills . . . .

The question then is whether Grieveson provided

“enough evidence of custom and practice to permit an

inference that the County has chosen an impermissible

way of operating.” Calhoun, 408 F.3d at 381. A practice

of dispensing full bottles of prescription medicine to

inmates may be an impermissible manner of operating

under the Constitution—though Grieveson did not pre-

sent expert evidence or caselaw addressing the effects

of dispensing entire drug prescriptions at once. From the

little we know, the alleged practice provides inmates

with quantities of medicine that could potentially allow

them to overdose and that could place them at risk for

having their needed medication stolen. But we need not

No. 05-4681 17

decide whether the practice is unconstitutional, because

Grieveson has not put forth adequate evidence

showing that the alleged practice was widespread and

reflective of a policy choice by the Marion County Sheriff,

which is the pivotal requirement of a § 1983 official ca-

pacity claim. See id; Phelan v. Cook County, 463 F.3d

773, 789-90 (7th Cir. 2006).

Grieveson’s allegation about jail officers providing full

prescriptions to other prisoners does not indicate the

frequency of the practice, nor suggest that it is wide-

spread. We do not know the alleged number of inmates

involved, and we do not know how many such disburse-

ments Grieveson witnessed. One broad, vague state-

ment about an occurrence affecting other inmates in a

detention facility does not support the inference of a

“widespread” custom. See Phelan v. Cook County, 463

F.3d 773, 789-90 (7th Cir. 2006) (“The unifying theme in

these decisions is the acknowledgment that the word

‘widespread’ must be taken seriously.”).

Turning to Grieveson’s personal experiences, we note

that it is not impossible for a plaintiff to demonstrate the

existence of an official policy or custom by presenting

evidence limited to his experience. Id. (“Generally speak-

ing, we do not believe that a plaintiff should be fore-

closed from pursuing Section 1983 claims where she can

demonstrate that repeated actions directed at her truly

evince the existence of a policy.”). However, it is neces-

sarily more difficult for a plaintiff to demonstrate an

official policy or custom based only on his own ex-

perience because “ ‘what is needed is evidence that there

is a true municipal policy at issue, not a random event.’ ”

Id. (quoting Calhoun, 408 F.3d at 380).

In his pleadings, discovery and disclosure materials,

and affidavits, Grieveson presented four incidents in

18 No. 05-4681

which he was given his full prescription at one time, and

a medical record shows that he asked, on one occasion, to

receive his pills one at a time. In Estate of Moreland v.

Dieter, an inmate’s observation of three incidents of im-

proper pepper-spraying was not sufficient to support

allegations of a widespread practice. 395 F.3d at 760. Two

incidents of placing black inmates in unsafe “gladiator

cell blocks” was not enough to survive summary judg-

ment on a widespread practice claim in Palmer v. Marion

County, 327 F.3d 588, 595 (7th Cir. 2003). Likewise,

Grieveson’s evidence of four incidents that he alone

experienced “fails to meet the test of a widespread un-

constitutional practice by the Jail’s staff that is so well

settled that it constitutes a custom or usage with the

force of law.” Id. at 595-96. This simply is not enough to

foster a genuine issue of material fact that the practice

was widespread—from that evidence alone an inference

does not arise that the county itself approved, acquiesced,

or encouraged the disbursement of entire prescriptions

at once. See Jones v. City of Chicago, 787 F.2d 200, 204 (7th

Cir. 1986) (“[T]here must be some knowledge or an

awareness—actual or imputed—of the custom and its

consequences showing the municipality’s approval,

acquiescence, or encouragement of the alleged uncon-

stitutional violation.”).

C. Section 1983 Individual-Capacity Claims

Grieveson’s claims against the individual jail officers

stem from two types of injuries. First, he claims that the

jail officers knew his safety was in danger, but failed to

protect him from assaults. Second, he claims that the

officers knew he had serious medical needs but they

disregarded those needs or postponed attention to those

No. 05-4681 19

needs. In order to survive summary judgment on these

claims against the jail officers in their individual capac-

ities, Grieveson must demonstrate a genuine issue of

material fact with respect to the officer’s “deliberate

indifference” to Grieveson’s safety and medical needs.

Palmer, 327 F.3d at 593.

Demonstrating deliberate indifference towards a pris-

oner’s safety needs requires a showing that the inmate

was “incarcerated under conditions posing a ‘sub-

stantial risk of serious harm,’ ” id. (quoting Farmer v.

Brennan, 511 U.S. 825, 834 (1994)), and a showing that

individual prison officials had subjective knowledge of

the risk of harm, which they personally disregarded, id. As

for the medical claims, the inmate must show that he

had an “objectively serious medical need,” and that the

individual officers were “aware of the prisoner’s serious

medical needs and disregarded an excessive risk that a

lack of treatment posed to the prisoner’s healthy or

safety . . . .” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.

2001).

1. Deliberate Indifference to Grieveson’s Safety Needs

For six of the assaults Grieveson suffered, we can assume

without deciding that he satisfied the first prong of the

deliberate indifference inquiry—that he was incarcerated

in conditions posing a substantial risk of serious harm. The

second prong presents a greater challenge to Grieveson

because the inquiry is not whether individual officers

should have known about risks to Grieveson’s safety, but

rather whether they did know of such risks. Farmer, 511

U.S. at 842-43. Even though “ ‘the defendants’ knowledge

of the risk can be inferred,’ ” James v. Milwaukee County,

956 F.2d 696, 700 (7th Cir. 1992) (quoting Whitley v. Albers,

20 No. 05-4681

475 U.S. 312, 321 (1986)), for six of the seven assaults

Grieveson presents no evidence showing that such an

inference is appropriate.

Although his attacker on November 30 called him a

snitch, Grieveson presented no evidence that any of the

named defendants were aware that Grieveson was per-

ceived as a snitch by his fellow inmates. The mere fact

that Grieveson thought he was considered a snitch does

not allow a factfinder to conclude “ ‘that a prison official

knew of a substantial risk from the very fact that the risk

was obvious.’ ” Mayoral v. Sheahan, 245 F.3d 934, 938 (7th

Cir. 2001) (quoting Farmer, 511 U.S. at 842). The only

person who believes that Grieveson was considered a

snitch (according to the evidence) is Grieveson himself.

Any risk to Grieveson’s safety on account of the “snitch”

label was not obvious. See Johnson v. Doughty, 433

F.3d 1001, 1010 (7th Cir. 2006) (stating that an inmate’s

need for surgery was not obvious); Payne for Hicks v.

Churchich, 161 F.3d 1030, 1042 (7th Cir. 1998) (“[W]e do not

believe that the allegations in the complaint about Mr.

Hicks’ conduct and tattoo message, without more, in-

dicate an obvious, substantial risk of suicide.”).

Grieveson also points to the repeated assaults that he

suffered at the hands of other inmates as evidence that the

jail officers were subjectively aware of the obvious

safety threats Grieveson faced. But looking at the facts

uncovered in discovery, even we cannot discern the

threat(s) Grieveson faced during his detention. Grieveson

never informed the jail officers of a specific threat to his

life (i.e., that he was at risk because of his “snitch” reputa-

tion). See Butera, 285 F.3d at 606. Instead, he told jail

officials only that he was afraid and that he wanted to be

moved. After his first assault, Grieveson told the jail

officers that “the problem was taken out of the block

No. 05-4681 21

already” and that he wanted to “let the situation pass.”

After the second assault, Grieveson informed jail officers

that he had been assaulted by another inmate and that he

wanted to be moved to another cell block. However, he

did not tell the officers who assaulted him, why he had

been assaulted (allegedly because of his “snitch” label),

or whether he continued to feel threatened by the as-

saulting individuals. The type of information Grieveson

shared with the jail officers is comparable to that shared

in Butera v. Cottey, where the plaintiff told the jail guards

that he was “having problems in the block” and “need[ed]

to be removed.” 285 F.3d at 606-07. Such vague informa-

tion did not put the jail officers on notice of a specific

threat to Grieveson’s safety. See id.

Grieveson was assaulted the third time by an inmate

who “beat [him] senseless for taking too long to use the

toilet.” It is hard to imagine how the jail officers would

have been on notice of this specific threat to Grieveson’s

safety. As sad as it may be, the toilet attack, in particular,

demonstrates that Grieveson was a “victim of the inher-

ent, as it were the baseline, dangerousness of prison life.”

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

The fourth assault occurred at the hands of a jail officer,

according to Grieveson. This officer has not been identified,

and there is no suggestion that the alleged assaulting

officer is one of the named defendants in this case. “ ‘A

plaintiff bringing a civil rights action must prove that the

defendant personally participated in or caused the uncon-

stitutional actions.’ ” Alejo v. Heller, 328 F.3d 930, 936 (7th

Cir. 2003) (quoting Duncan v. Duckworth, 644 F.2d 653,

655 (7th Cir. 1981)). Grieveson does not argue that the

named defendants in this case knew that another jail

officer was going to slam Grieveson’s arm in a door.

“[D]eliberate indifference requires that the corrections

22 No. 05-4681

officer must have ‘actual knowledge’ of the risk.” Guzman,

495 F.3d at 857-58 (quoting Washington v. LaPorte County

Sheriff’s Dep’t, 306 F.3d 515, 517-18 (7th Cir. 2002)).

Grieveson’s fifth assault was similar to his third in that

an inmate came after him out of personal frustration.

Grieveson attests that he was “pommelled [sic] in the face

for allegedly snoring due to [his] broken nose.” Skipping

to the seventh assault, it also happened at the hands of

an angry inmate: “I was attacked by inmate Robert

White, who was angry over losing a card game.”

Grieveson’s account of these incidents does not suggest

that the assailants lashed out at Grieveson because of

his alleged reputation as a snitch. Instead, they demon-

strate the tragic realities of jail and prison life that detainees

are often subject to, absent fault on the part of individual

jail guards. “[P]risons are dangerous places. Inmates get

there by violent acts, and many prisoners have a propensity

to commit more. Guards cannot turn away persons com-

mitted by the courts; nor do individual guards have any

control over crowding and other systemic circumstances.”

Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004); see also

United States v. Tokash, 282 F.3d 962, 970 (7th Cir. 2002)

(“[P]risons are inherently dangerous places and are

inhabited by violent people . . . .”).

There is no doubt that jail officials have a duty to protect

detainees “ ‘from violence at the hand of other inmates.’ ”

Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006) (quoting

Washington, 306 F.3d at 517). But liability of a jail officer

for failure to protect an inmate only materializes if the

officer knew the inmate faced a “ ‘substantial risk of seri-

ous harm’ ” and “ ‘disregard[ed] that risk by failing to

take reasonable measures to abate it.’ ” Id. (quoting Farmer,

511 U.S. at 847). There is no genuine issue of material

fact concerning the assaults Grieveson suffered at the

No. 05-4681 23

hands of angry, unstable, violent inmates because there

is no evidence demonstrating that any of the named

officers knew about these threats to Grieveson’s safety.

See Guzman, 495 F.3d at 857-58.

Grieveson’s own affidavits and evidentiary materials

confirm that Grieveson’s main charge against the jail

officers is that they should have known what was

going on—not that they did know. He asks in an af-

fidavit, “How many trips would it take to the hospital

emergency room for a trained Correctional Officer to

realize that I was having problems in Cell Block 2-A? I had

already taken 4 (four) trips to the emergency room.”

Elsewhere he attests: “[a]t no time did the Defendants

approach me and ask me as to my personal safety and

well being.”; “Any layperson, let alone someone ‘trained’

for observation, could readily see my injuries were con-

sistent with being assaulted. Yet the Defendants did not

take adequate measures to . . . assure I was not attacked

again.”; “Never was I approached by a correctional

officer for determination of whether or not I needed

assistance.”; “It is hard to understand how a prisoner

standing there with free-flowing blood should not be

enough to spark some interest; but it didn’t in my case.”

Grieveson does not say that he told jail officers he was in

danger; rather, he claims that the officers should have

realized he was in danger.

In the grievances Grieveson filed (two of which the jail

does not report having received, but for purposes of

summary judgment we will consider as having been

received), he fails to identify a tangible threat to his safety

or wellbeing. Grieveson wrote that he was “real scared

of my life here and the guards are even afraid to come

into the block[—]how do you think we feel.” He asked

24 No. 05-4681

to be moved to another jail or a “safer” block, but did not

put the jail officials on notice of specific threats to his

safety. Perhaps the jail officers should have done a

better job with Grieveson—maybe they could have

initiated more conversations with him, asked him to

identify his assailants, invited him to come to them

more often with his concerns—but proving deliberate

indifference “requires more than a showing of negligent

or even grossly negligent behavior. . . . [T]he correc-

tions officer must have acted with the equivalent of

criminal recklessness.” Borello, 446 F.3d at 747.

Also problematic for Grieveson is his failure to tie actions

of the named defendants to the injuries he allegedly

suffered. See Alejo, 328 F.3d at 936; Starzenski v. City of

Elkhart, 87 F.3d 872, 879 (7th Cir. 1996). Throughout his

affidavits and briefs, Grieveson refers to “the defendants,”

claiming that “the defendants” failed to protect him. Vague

references to a group of “defendants,” without specific

allegations tying the individual defendants to the

alleged unconstitutional conduct, do not raise a gen-

uine issue of material fact with respect to those defendants.

See Alejo, 328 F.3d at 936 (finding dismissal of named

defendant proper where plaintiff failed to allege defen-

dant’s personal involvement in the alleged wrongdoings).

Thus, for six of the seven assaults, Grieveson has not

demonstrated a genuine issue of material fact about the

jail officers’ deliberate indifference. On the other hand,

the sixth attack Grieveson suffered does survive sum-

mary judgment insofar as it relates to Officer High-

baugh. Grieveson attests that in March 2001, he was

assaulted by other inmates when they stole his personal

commissary items and his food. Grieveson claims that

Officer Highbaugh witnessed the incident and failed to

intervene; later Highbaugh allegedly commented to

No. 05-4681 25

Grieveson that he needed to “learn how to fight harder

or don’t come to jail.” If Officer Highbaugh did witness

an inmate assault, but failed to intervene, his actions

would seemingly “constitute a paradigm case of delib-

erate indifference.” Haley v. Gross, 86 F.3d 630, 642 (7th

Cir. 1996). The evidence presented by Grieveson re-

specting the sixth assault establishes a genuine issue of

material fact on both prongs of the deliberate indiffer-

ence inquiry. “First, the danger to the inmate must be

objectively serious, posing a substantial risk of serious

harm.” Id. at 640. Grieveson allegedly was assaulted by

other inmates—an objectively serious danger that posed

a substantial risk of serious harm to him—in the presence

of Officer Highbaugh. “Second, the prison official must

have a sufficiently culpable state of mind—one of ‘de-

liberate indifference’ to inmate health or safety.” Id.

(quoting Farmer, 511 U.S. at 834). Officer Highbaugh

allegedly watched the assault but did not intervene to

protect Grieveson—exhibiting quintessential deliberate

indifference.

Finally, with respect to Marion County Officers

Boomershine and Commiskey, the district court was correct

to grant summary judgment in their favor. Grieveson did

not demonstrate that they were personally involved in the

injuries he suffered. As discussed above, “ ‘[a]n individual

cannot be held liable in a § 1983 action unless he caused or

participated in [the] alleged constitutional deprivation.’ ”

Starzenski, 87 F.3d at 879 (quoting Wolfe-Lillie v. Sonquist,

699 F.2d 864, 869 (7th Cir. 1983)).

2. Deliberate Indifference to Grieveson’s Medical Needs

Grieveson alleges that he first told Officers Highbaugh,

Cornell, and Duncan about his broken nose during the

26 No. 05-4681

afternoon of December 1, 2000. He was told that they

would “let Medical know” and one officer had Grieveson

fill out a “medical call card.” On December 2, Grieveson

claims that he again told Officer Duncan that he was in

pain and that he needed to be seen by a doctor. Officer

Duncan had him fill out a second medical call card.

Grieveson was taken to the hospital on the morning of

December 3. The total lapse of time between Grieveson’s

assault and when Grieveson ultimately received treat-

ment is debated by the parties; Grieveson claims that

the assault took place on November 30, and that it was

almost two days after he first complained to a guard that

he received treatment. Grieveson filed a grievance about

the delayed medical treatment, and the jail’s response

supports the notion that the treatment was, in fact, de-

layed: “[I]t is unforunant [sic] that it took that long to send

you to [W]ishard . . . .”

In order to survive summary judgment on a claim for

deliberate indifference to serious medical needs, Grieveson

must show that he had an objectively serious medical

need, and that named guards were deliberately indiffer-

ent to it. Norfleet v. Webster, 439 F.3d 392, 395 (7th Cir.

2006); Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)

(“[A] prison official may evidence deliberate indifference

by failing to treat or delaying the treatment of a serious

medical need. However, for liability to exist the medical

need must be objectively serious.”). A delay in the provi-

sion of medical treatment for painful conditions—

even non-life-threatening conditions—can support a

deliberate-indifference claim, see Gutierrez v. Peters, 111

F.3d 1364, 1372 (7th Cir. 1997), so long as the medical

condition is “ ‘sufficiently serious or painful,’ ” id. (quoting

Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996)).

No. 05-4681 27

The defendants argue that Grieveson cannot survive

summary judgment because he did not put forth evidence

demonstrating an objectively serious medical condi-

tion—he did not “ ‘place verifying medical evidence in the

record to establish the detrimental effect of delay in

medical treatment.’ ” Langston, 100 F.3d at 1240 (quoting

Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995)); see

also Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007)

(“[A] plaintiff must offer medical evidence that tends to

confirm or corroborate a claim that the delay was detri-

mental.”). We recently considered what qualifies as

“verifying medical evidence” in Williams v. Liefer:

Clearly, expert testimony that the plaintiff suffered

because of a delay in treatment would satisfy the

requirement. On the other hand, evidence of a

plaintiff’s diagnosis and treatment, standing alone,

is insufficient if it does not assist the jury in determin-

ing whether a delay exacerbated the plaintiff’s condition

or otherwise harmed him.

Id. at 715 (emphasis added). As in Williams, “the evidence

in this case falls somewhere in between a bare recitation

of treatment received and expert testimony about the

delay’s effect.” Id. Grieveson did not introduce expert

testimony stating that his medical condition worsened

because of the delay—but that does not mean Grieveson

offered no verifying medical evidence. See id. Grieveson

supplied medical records indicating that he had a nasal

fracture, that he could experience further bleeding, and

that he may need to see a specialist. Grieveson later

underwent painful nose surgery. The evidence Grieveson

provided would certainly help a jury determine whether

the delay “unnecessarily prolonged and exacerbated”

Grieveson’s pain, id., and thus qualifies as verifying

28 No. 05-4681

medical evidence that supports a genuine issue of material

fact regarding the seriousness of Grieveson’s medical

condition.

Based on the evidence provided by Grieveson, a

jury could further infer that the delays of Officers

Highbaugh, Cornell, and Duncan in arranging medical

treatment caused Grieveson “that many more hours of

needless suffering for no reason.” Id. According to

Grieveson, these three guards knew that he was in pain,

but they did not secure medical treatment for him until,

at the earliest, one-and-a-half days after they knew

about the injury. Grieveson’s affidavits create a genuine

issue of fact as to the officers’ states of mind. “Although

a negligent or inadvertent failure to provide adequate

medical care is insufficient to state a deliberate indiffer-

ence claim, it is enough to show that a defendant actually

knew of a substantial risk of harm to the inmate and acted

or failed to act in disregard to that risk.” Gil v. Reed, 381

F.3d 649, 661 (7th Cir. 2004); see also Williams, 491 F.3d at

716 (“[A] jury could find that the defendants’ delay caused

[the inmate] six extra hours of pain and dangerously

elevated blood pressure for no good reason.”).

Grieveson’s claim for deliberate indifference to his

medical needs survives summary judgment as against

Officers Highbaugh, Cornell, and Duncan to the extent

that the claim relates to delays in treatment after

Grieveson’s first assault. Grieveson does not proffer

sufficient evidence to survive summary judgment for

any other delays in medical treatment because he does

not show that the named defendants were personally

involved in the other delays. See Alejo, 328 F.3d at 936.

No. 05-4681 29

D. State-Law Negligence Claim

The district court briefly addressed Grieveson’s negli-

gence claim. It outlined the cause of action: a plaintiff

must demonstrate that (1) the defendant had a duty, arising

from his relationship with the plaintiff, to exercise the

relevant standard of care; (2) the defendant failed to

conform his conduct to that standard of care; and (3) the

defendant’s failure to meet that standard of care proxi-

mately caused the plaintiff’s injury. Webb v. Jarvis, 575

N.E.2d 992, 995 (Ind. 1991). The court found that the

defendants had a duty of care with respect to the jail’s

inmates, including Grieveson. The court then decided

that “there was no negligence on the part of the defendants

toward the plaintiff’s welfare because Grieveson was not

injured as a proximate result of any defendant’s breach

of a duty owed to Grieveson.”

Grieveson’s burden on a negligence claim is far less than

his burden on a § 1983 deliberate-indifference claim. See

Perkins, 312 F.3d at 876. Whereas Grieveson had to

show that the named jail officers knew about a substan-

tial risk to Grieveson’s health and safety to sustain a

§ 1983 claim, see Guzman, 495 F.3d at 857-58, negligence

law exists to deal with the very types of allegations

Grieveson made here—that certain individuals should

have acted differently in light of the duties applicable to

them, and that their failure to abide by the relevant stan-

dard of care caused Grieveson personal injury. Many of

Grieveson’s allegations suggest that jail officers should

have done things differently: they should have main-

tained a more sanitary facility; they should have realized

Grieveson’s safety was at risk and actively tried to deter-

mine and eliminate the source of that risk; they should

have taken him to the hospital promptly after learning

30 No. 05-4681

that he was assaulted and thought he had a broken nose;

they should have ensured that he received the surgery

he needed on his eye within the required time period—

and they should have informed his next detention center

that immediate surgery was imperative and provided

his new placement with his medical records.

Grieveson established through his pleadings, discovery

and disclosure materials, and affidavits that there is a

genuine issue of material fact surrounding his state-law

negligence claim. See Fed. R. Civ. P. 56(C).

III. CONCLUSION

For the foregoing reasons, we AFFIRM in part and RE-

VERSE in part the judgment of the district court, and

REMAND for further proceedings.

8-18-08