Gregory Kemp v. Fulton County, Illinois

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-1079

GREGORY KEMP,

Plaintiff-Appellant,

v.

FULTON COUNTY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 17-cv-1404-JBM — Joe Billy McDade, Judge.

____________________

ARGUED SEPTEMBER 23, 2021 — DECIDED FEBRUARY 25, 2022

____________________

Before KANNE, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. While Gregory Kemp was confined

at the Fulton County Jail awaiting his trial, he became in-

volved in a melee with three other detainees. Kemp cried out

for help, but no one heard him or came to his aid until the

beating was over. He suffered serious injuries from the inci-

dent.

2 No. 21-1079

Believing that the Jail’s failure to protect him from the at-

tack violated his rights under the Fourteenth Amendment to

the U.S. Constitution, Kemp brought this action under 42

U.S.C. § 1983 against Fulton County Sheriff Jeff Standard, Ser-

geant Christopher Ford, and Officer Sheldon Burget. After

discovery, the district court granted defendants’ motion for

summary judgment. We affirm.

I

A

Because the case was resolved on summary judgment, we

view the facts in the light most favorable to Kemp, the non-

moving party. See Dixon v. Cnty. of Cook, 819 F.3d 343, 346 (7th

Cir. 2016). The account that follows reflects this perspective.

As of September 5, 2016, Kemp and three others—Bradley

Dearborn, Edwin Galvez, and Luis Lind-Enriquez—were all

pretrial detainees at the Jail. They were housed in Cell Block

G, where they had lived together without incident for several

months. That streak of good behavior came to an end when

Kemp had an argument with Galvez. The altercation led

Dearborn to threaten to “get [Kemp].” Shortly after Dearborn

issued this threat, defendant Sheldon Burget, a correctional

officer on duty during the incident, made his rounds through

the common area. Kemp considered telling Burget about

Dearborn’s statement, but he chose not to do so, in order to

avoid being seen as a “snitch.” Instead, Kemp made the un-

fortunate decision to confront Galvez and Dearborn violently.

Kemp threw the first punch, and Dearborn and Galvez re-

sponded by beating him.

Jail surveillance video shows that Lind-Enriquez soon

joined in the beating; after a few hits, he went to his cell to get

No. 21-1079 3

a sock stuffed with a hard “paintball,” made (as the name sug-

gests) from dried paint. Back in the melee, Lind-Enriquez be-

gan striking Kemp with the makeshift weapon. Lind-En-

riquez can be seen on the video throwing a toilet plunger at

Kemp, though he missed. Kemp yelled for help, but neither

Burget nor anyone else responded.

That beating lasted only a few minutes. Afterwards, the

video shows Kemp cleaning the common area with soap and

bleach while Lind-Enriquez washed blood off of his body.

Kemp testified that the others told him they’d “all be cool.”

But about 20 minutes later, tensions flared again, Lind-En-

riquez attacked Kemp a second time, and Dearborn and Gal-

vez joined in. The second fight ended with Kemp lying mo-

tionless on the floor. Another correctional officer, Tiffany Wil-

liams, who was conducting her assigned rounds, stopped at

the common area a few minutes after the second beating

ended. Williams saw Kemp lying on the floor and called for

emergency medical services. The medics responded about

eight minutes later; they moved Kemp onto a stretcher and

later sent him to the hospital.

As we said, Burget was patrolling the Jail as all this was

unfolding. But, as he admitted during his deposition, he had

about 60% hearing loss in one ear and about 40% hearing loss

in the other. His physician had prescribed a hearing aid for

one ear, but Burget stopped wearing it about six months be-

fore the September 5 incident and thus was not using it at the

time of the fight.

Kemp speculates that if Burget had been wearing his hear-

ing aid on the day of the attack, he would have heard Kemp’s

cries for help. But the record contains no evidence that would

permit such a finding. Nothing indicates that Burget’s hearing

4 No. 21-1079

loss was severe enough to prevent him from hearing the com-

motion, or more generally from performing his job. Both par-

ties agree that Burget frequently did hear fights, loud noises,

and yelling while in the Jail. Kemp even testified that Burget

had responded to his calls in the past. Similarly, the record

lacks any evidence showing how much Burget’s hearing aid

improved his hearing, if at all.

Kemp, pointing to the Jail’s logs showing the rounds cov-

ered by each guard, asserts that Burget was standing in a

nearby hallway where someone with better hearing would

have heard the sounds of a fight. But Burget’s location during

the beating was contested. Defendants admit that sound car-

ries through the Jail, but they also offered evidence that the

Jail was often noisy, making it difficult for guards to overhear

what was happening in other parts of the building. At least

three other Jail employees (correctional officer Williams and

dispatchers Tanisha Bradford and Keith Wojtkiewicz) were

also near the site of the brawl. Bradford and Wojtkiewicz (nei-

ther of whose auditory ability was challenged) deny hearing

any telltale noise. Williams testified that she heard sounds of

a fight only as she walked toward the Jail’s G Block during her

rounds. She described hearing the sound of “two people

wrestling” and “stomping,” but she denied hearing cries for

help.

Neither Sheriff Standard nor Sergeant Ford was on the

premises during the September 5 beating. Kemp contends,

however, that they are personally responsible for what hap-

pened because they each knowingly allowed Burget to work

as a corrections officer despite his diminished hearing. Stand-

ard and Ford deny knowing that Burget had a hearing impair-

ment (or at least one that mattered). Kemp sees a disputed

No. 21-1079 5

material fact on this point; he argues that Standard and Ford

must have known about Burget’s hearing problem because

Burget previously had worked in the Jail as a dispatcher in

2007 or 2008. Burget was dismissed from that job because of

“problems with [his] hearing.” Sheriff Standard was aware of

this when he later hired Burget. (The defendants assert that

Burget was actually fired from the dispatcher position be-

cause of general incompetence, but we must credit the version

that favors Kemp.)

B

Kemp filed this action against Standard, Ford, and Burget.

His complaint also named Williams as a defendant, but he has

abandoned his claims against her on appeal. He also joined

Fulton County as a necessary party for payment of any settle-

ment or judgment. See 745 ILCS § 10/9-102.

As we noted earlier, the district court entered judgment

for the defendants. Kemp could not prevail against Burget,

the court concluded, because nothing in the record would

have put a reasonable guard on notice of a substantial risk of

harm to Kemp. With respect to Standard and Ford, the court

concluded that Kemp had failed to point to any evidence that

would support a finding that they were aware of the degree

of Burget’s hearing loss or that Burget’s hearing loss was caus-

ally linked to Kemp’s injury. Kemp has appealed the judg-

ments in favor of all three defendants.

II

We consider the correctness of a district court’s grant of

summary judgment independently, without any thumb on

the scale in favor of the district court’s assessment. Dixon, 819

F.3d at 346. Summary judgment is proper against a party who,

6 No. 21-1079

after sufficient time for discovery, fails to show how a fact-

finder could find in his favor on an essential element on which

the party would bear the burden of proof at trial. Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986).

We begin with Kemp’s failure-to-protect claim against

Burget, and then turn to the supervisory defendants. Incarcer-

ated people have a clearly established right to be free from

physical harm inflicted by others in the institution. See, e.g.,

Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[P]rison officials

have a duty … to protect prisoners from violence at the hands

of other prisoners.”); Rice ex rel. Rice v. Corr. Med. Serv., 675

F.3d 650, 668 (7th Cir. 2012) (“Jail officials have a duty to pro-

tect inmates from violent assaults by other inmates.”). Correc-

tional officials who are deliberately indifferent to inhumane

conditions of confinement, including violence behind bars,

may be held liable under 42 U.S.C. § 1983. See Rice, 675 F.3d

at 665, 669; Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir.

2007).

A

Because Kemp was a pretrial detainee, his conditions-of-

confinement claim arises under the Due Process Clause of the

Fourteenth Amendment, which is governed by an objective

standard. Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019). In

contrast, those who are serving prison sentences after a trial

must rely on the Eighth Amendment’s bar on cruel and unu-

sual punishment, which requires a showing of both an objec-

tively unreasonable deprivation of rights and subjective de-

liberate indifference. The difference in standards stems from

the fact that pretrial detainees remain entitled to the presump-

tion of innocence, and so the Constitution protects them from

No. 21-1079 7

any punishment for the acts that led to their detention. Miranda

v. Cnty. of Lake, 900 F.3d 335, 350 (7th Cir. 2018).

The Supreme Court underscored the importance of the

distinction between convicted inmates and those who are de-

tained pending adjudication of their cases in Kingsley v. Hen-

drickson, 576 U.S. 389 (2015). There it held that a pretrial de-

tainee bringing an excessive-force claim under the Fourteenth

Amendment need not satisfy the Eighth Amendment’s sub-

jective-intent standard.

While Kingsley was specifically about excessive-force

claims, we have recognized that “[n]either the Supreme

Court’s logic nor its language” is limited to that context. Har-

deman, 933 F.3d at 823. Recognizing the Supreme Court’s “sig-

nal[] that courts must pay careful attention to the different sta-

tus of pretrial detainees” as compared with convicted offend-

ers, we have applied Kingsley’s objective unreasonableness

test to other Fourteenth Amendment claims, including chal-

lenges to inadequate medical care and other conditions of pre-

trial confinement. Hardeman, 933 F.3d at 822–23; Miranda, 900

F.3d at 352. Other circuits, including the Second, Sixth, Ninth,

and Tenth, have similarly concluded that Kingsley’s objective

standard applies to some or all conditions-of-confinement

cases brought by pretrial detainees. See Brawner v. Scott Cnty.,

14 F.4th 585, 596 (6th Cir. 2021) (medical need); Colbruno v.

Kessler, 928 F.3d 1155, 1161–63 (10th Cir. 2019) (general condi-

tions of confinement); Gordon v. Cnty. of Orange, 888 F.3d 1118,

1120, 1122–25 (9th Cir. 2018) (medical need); Darnell v. Pineiro,

849 F.3d 14, 34–35 (2d Cir. 2017) (general conditions of con-

finement). But see Strain v. Regalado, 977 F.3d 894 (10th Cir.

2020) (holding that Kingsley is limited to excessive-force cases

8 No. 21-1079

and applying both a subjective and objective standard to med-

ical-care cases).

Following Kingsley, Miranda, and Hardeman, a plaintiff

such as Kemp challenging the conditions of his pretrial deten-

tion need show only that a defendant’s conduct was “objec-

tively unreasonable.” Hardeman, 933 F.3d at 824. Burget thus

would be liable if he “acted purposefully, knowingly, or per-

haps even recklessly” in coming to work without his hearing

aid, but not if he were no more than negligent. Miranda, 900

F.3d at 353; see also Daniels v. Williams, 474 U.S. 327, 330–31

(1986) (a state official’s “mere lack of due care” does not “‘de-

prive’ an individual of life, liberty, or property under the

Fourteenth Amendment.”). Objective reasonableness “turns

on the facts and circumstances of each particular case.” Kings-

ley, 586 U.S. at 397.

We have not yet had the occasion to consider how Kingsley,

Miranda, and Hardeman apply to a failure-to-protect claim.

Our pre-Kingsley cases follow the Eighth Amendment’s ap-

proach (i.e., objective harm plus subjective intent) to pretrial

settings. See, e.g., Rice, 675 F.3d at 669; Guzman, 495 F.3d at

857; Butera v. Cottey, 285 F.3d 601, 605 (7th Cir. 2002). But, just

as we have done with medical-care and excessive-force cases,

we must now take Kingsley into account.

We begin by recalling that in Kingsley, the Supreme Court

explained that an excessive-force claim raises two distinct

state-of-mind issues:

The first concerns the defendant’s state of mind with

respect to his physical acts—i.e., his state of mind with

respect to the bringing about of certain physical conse-

quences in the world. The second question concerns

No. 21-1079 9

the defendant’s state of mind with respect to whether

his use of force was “excessive.” … We conclude with

respect to that question that the relevant standard is

objective not subjective.

Kingsley, 576 U.S. at 395. In Kingsley itself, there was no dis-

pute over the first question: both parties agreed that the de-

fendant officers had intentionally stung Kingsley with a Taser.

But on the second question—whether that degree of force was

excessive—the Court stated that “the defendant’s state of

mind is not a matter that a plaintiff is required to prove.” Id.

It summarized its holding as follows: “a pretrial detainee

must show only that [1] force purposely or knowingly used

against him [2] was objectively unreasonable.” Id. at 396–97.

For example, “if an officer’s Taser goes off by accident,” a pre-

trial detainee could not prevail, because she could not show

that the officer knowingly used force. Id. at 396. But a pretrial

detainee does not need to show that an officer who intention-

ally tased her also understood that the use of the Taser was

excessive or that the officer otherwise intended harm or pain.

The detainee need only demonstrate that a reasonable person

would recognize that the use of force was objectively unrea-

sonable under the circumstances. Id. at 396–97.

The Ninth Circuit, sitting en banc, applied these principles

to failure-to-protect claims in Castro v. Cnty. of Los Angeles, 833

F.3d 1060 (7th Cir. 2016) (en banc). It held there that a pretrial

detainee does not need to show that an officer with all the in-

formation about a potential health or safety risk actually did

put the puzzle pieces together. In doing so, it contrasted the

test in Fourteenth Amendment cases with the Eighth Amend-

ment’s requirement to show subjective deliberate indiffer-

ence. Id. at 1068. At the same time, as we have done, it

10 No. 21-1079

acknowledged that “negligent conduct does not offend the

Due Process Clause.” Miranda, 900 F.3d at 353 (citing Daniels,

474 U.S. at 330–31); see Castro, 844 F.3d at 1071. The Ninth Cir-

cuit reasoned that a pretrial detainee must “prove more than

negligence but less than subjective intent—something akin to

reckless disregard.” Castro, 833 F.3d at 1071. It held that:

[T]he elements of a pretrial detainee’s Fourteenth

Amendment failure-to-protect claim against an indi-

vidual officer are:

(1) The defendant made an intentional decision

with respect to the conditions under which the plaintiff

was confined;

(2) Those conditions put the plaintiff at substantial

risk of suffering serious harm;

(3) The defendant did not take reasonable available

measures to abate that risk, even though a reasonable of-

ficer in the circumstances would have appreciated the high

degree of risk involved—making the consequences of the

defendant’s conduct obvious; and

(4) By not taking such measures, the defendant

caused the plaintiff’s injuries.

Id. (emphasis added). The third of these elements is the critical

one for our purposes. Put more succinctly, it requires only

that the defendant’s conduct be objectively unreasonable.

Like the Ninth Circuit, and following our own post-Kings-

ley line of cases, we now hold that Kingsley abrogates Guzman,

Butera, and their kin to the extent that they require pretrial

detainees to show, in a failure-to-protect case, that a defend-

ant was subjectively “aware of a substantial risk of serious

No. 21-1079 11

injury.” Guzman, 495 F.3d at 857 (citing Butera, 285 F.3d at

605). This requirement cannot be reconciled with Kingsley’s

language, reasoning, and reminder to “pay careful attention

to the different status of pretrial detainees.” Miranda, 900 F.3d

at 352. We hold, as the Ninth Circuit did in Castro, that the

defendant officer must intend to carry out a certain course of

actions; negligence is not enough. At that point, the remaining

question is whether that course is objectively reasonable. If

not, there is a Fourteenth Amendment violation.

B

Kemp urges that he can meet this standard with respect to

Burget, because Burget intentionally chose not to wear his

hearing aid on the day of the fight. We agree with him in part:

the facts he presented at summary judgment, if believed,

show that he satisfies the first point. But more is needed to

show that a trial is necessary. The remaining questions are

whether that decision put Kemp at substantial risk of serious

harm; whether a reasonable officer in Burget’s shoes would

have appreciated the risk that his actions entailed; and

whether Burget’s failure to wear his hearing aid caused

Kemp’s injuries.

Our own review of this thin record convinces us that

Kemp has not presented enough evidence to permit a trier of

fact to rule for him on these latter elements. Most importantly,

he has not pointed to evidence showing that Burget’s hearing

impairment and decision not to wear a hearing aid caused

Kemp’s injuries. Nothing in the record indicates that Burget’s

hearing was so poor that he could not adequately perform his

job. To the contrary, Burget had done his job without his hear-

ing aid for six months. If there was evidence that his perfor-

mance was wanting during that period, it did not make it into

12 No. 21-1079

this record. The record is also devoid of evidence that demon-

strates that a person with unimpaired hearing would have

been alerted to the first fight by the noise it generated. Dis-

patchers Bradford and Wojtkiewicz denied hearing the beat-

ing, and Officer Williams testified that she heard the second

fight only as she got very close to Block G. Their testimony

favors the County defendants’ position. Finally, no evidence

demonstrates how much Kemp’s hearing aid improved his

hearing or why he stopped wearing it when he did. His testi-

mony that it was ineffective went unrebutted.

The defendants also argue persuasively that Kemp did not

present any evidence showing that any of them was on notice

of a serious risk of harm to him. Kemp admitted that he never

reported his verbal disagreement with Galvez, Dearborn, and

Lind-Enriquez or the ensuing threats to Jail employees, and

that prior to the beating, all four men had cohabited peace-

fully for months. Without any evidence that Burget should

have been on notice of a substantial risk to Kemp’s safety, or

that his decision not to wear a hearing aid led to Kemp’s inju-

ries, a jury could not conclude that Burget’s actions were ob-

jectively unreasonable.

III

A

Kemp also sued Standard and Ford in their individual ca-

pacities. Because the Supreme Court has foreclosed respondeat

superior liability for section 1983 actions, a plaintiff may hold

a government official “liable [only] for his or her own miscon-

duct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). To be person-

ally liable, a supervisor must “know about the conduct and

facilitate it, approve it, condone it, or turn a blind eye for fear

No. 21-1079 13

of what they might see.” Matthews v. City of East St. Louis, 675

F.3d 703, 708 (7th Cir. 2012). Kemp argues that Standard and

Ford knowingly hired and retained a hearing-impaired cor-

rectional officer. Although Standard and Ford deny knowing

about Burget’s hearing loss, we assume, favorably to Kemp,

that they knew about it.

Kingsley’s objective-unreasonableness test applies equally

to supervisory-liability claims. That is because the state of

mind necessary to trigger a supervisor’s liability varies with

the constitutional provision at the heart of the claim, in much

the same way that the state of mind needed to establish a sec-

tion 1983 violation does. See Barkes v. First Corr. Med., Inc., 766

F.3d 307, 318 (3d Cir. 2014), cert. granted, judgment rev’d on

other grounds, Taylor v. Barkes, 575 U.S. 822 (2015); see also

Locke v. Haessig, 788 F.3d 662 (7th Cir. 2015); Dodds v. Richard-

son, 614 F.3d 1185, 1199 (10th Cir. 2010) (holding that section

1983 plaintiffs may hold supervisors liable by showing that

they “acted with the state of mind required to establish the

alleged constitutional deprivation.”). Thus, applying Kings-

ley’s objective-unreasonableness test, Kemp can defeat sum-

mary judgment only if the facts viewed in the light most fa-

vorable to him show that Standard and Ford acted purpose-

fully, knowingly, or with reckless disregard for the conse-

quences of hiring and retaining Burget despite his hearing

disability. See Miranda, 900 F.3d at 353. Once again, he must

show more than negligence. Id.

B

Standard and Ford argue that Kemp’s wrongful hiring

and retention arguments are waived because he did not spell

them out in his complaint. This is incorrect. “[C]omplaints

need not plead legal theories,” Miranda, 900 F.3d at 345 (7th

14 No. 21-1079

Cir. 2018), and Kemp did raise these arguments before the dis-

trict court. His supervisory-liability theory is thus properly

before us. Nonetheless, he cannot prevail for two reasons.

The first is the same causation problem that dooms his

claim against Burget: there is no evidence in the record that

would allow a reasonable jury to conclude that another officer

with no hearing impairment would have heard the fight and

intervened earlier. Second, Kemp has presented no evidence

that Standard and Ford knew that Burget was not wearing his

hearing aid or that they had any reason to believe that he was

unable to perform his job duties without the device. Without

notice that Burget was posing a danger to the people detailed

in the Fulton County Jail, his supervisors’ decision to retain

him may have been negligent, but there is no evidence that it

was purposeful, knowing, or reckless. See Jones v. City of Chi-

cago, 856 F.2d 985, 992 (7th Cir. 1988) (“[S]upervisors who are

merely negligent in failing to detect and prevent subordi-

nates’ misconduct are not liable, because negligence is no

longer culpable under section 1983.”).

IV

On this record, Kemp has not presented sufficient evi-

dence for a reasonable jury to conclude that defendants Bur-

get, Standard, or Ford took objectively unreasonable actions

that caused his injuries. We therefore AFFIRM the district

court’s grant of summary judgment to all defendants.