Marvin Thomas v. Thomas Dart

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-2458

MARVIN THOMAS,

Plaintiff-Appellant,

v.

THOMAS J. DART, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17-cv-04233 — Mary M. Rowland, Judge.

____________________

ARGUED FEBRUARY 10, 2022 — DECIDED JULY 12, 2022

____________________

Before MANION, KANNE ∗, and JACKSON-AKIWUMI, Circuit

Judges.

MANION, Circuit Judge. While incarcerated in Cook County

Jail, Marvin Thomas was assaulted by another inmate. Seven-

teen months later, he filed suit under 42 U.S.C. § 1983 and

∗ Circuit Judge Kanne died on June 16, 2022, and did not participate

in the decision of this case, which is being resolved under 28 U.S.C. § 46(d)

by a quorum of the panel.

2 No. 21-2458

other federal statutes against Sheriff Thomas J. Dart, Cook

County, and other Jail personnel, including corrections offic-

ers to whom he allegedly reported the inmate’s threat of vio-

lence. Ultimately, all of these claims were either dismissed or

resolved against Thomas on summary judgment.

This appeal is not about those claims. Years after litigation

began, Thomas sought to amend his complaint for a third

time to name as defendants intake clerks who screened him

when he entered the Jail. He alleged the clerks purposely

omitted from intake forms that he suffered from mental

health problems and that this omission led to his assault. The

district court denied the motion to amend, concluding it

would be improper to add the new defendants. Thomas chal-

lenges the denial of his motion to amend and asserts that the

district court’s ruling demonstrates its bias against him.

Because the amendment Thomas sought would have been

futile, and because no bias against Thomas can reasonably be

inferred from the district court’s adverse rulings, we affirm.

I. Background

In June 2015, Thomas was arrested and transported to the

Jail. Although released from custody the following month, he

was indicted and reincarcerated in September 2015. On Janu-

ary 5, 2016, he was injured when another pretrial detainee as-

saulted him. He was treated and transferred to a different fa-

cility about three weeks later on January 29.

Thomas filed the original complaint in this case in June

2017. The complaint alleged that, prior to his initial arrest,

Thomas had been diagnosed with PTSD stemming from an

assault he had suffered years earlier. In October 2015, after his

reincarceration, he told corrections officers guarding the unit

No. 21-2458 3

in which he was housed that another inmate had threatened

him. Although the corrections officers told Thomas he would

be moved, they took no action. A few months later, Thomas

was attacked by this inmate. As a result, Thomas suffered a

split lip and a dislocated shoulder. He was treated and housed

in a segregation unit before being transferred out of the Jail.

The complaint asserted liability against numerous individu-

als. As relevant here, Thomas sued unnamed corrections of-

ficers guarding his Jail unit for violating his constitutional

rights when they failed to protect him from assault by the

other inmate.

Thus began a series of motions to dismiss, judicial rulings,

and amended complaints. Meanwhile, discovery on some of

the claims began. After Thomas filed a second amended com-

plaint that still had not named the corrections officers more

than two years after the suit was initiated, the district court

sensed the need for pellucid direction. In December 2019, it

advised Thomas that he could “amend the complaint only to

identify the individual defendants involved in the failure to

protect claim” and that the court would “not entertain any

other amendments.”

Despite the district court’s clarity, Thomas did not follow

its instructions. In January 2020, he sought leave to file a third

amended complaint, which forms the crux of the present ap-

peal. He finally named three Jail corrections officers who

guarded his housing unit and purportedly failed to protect

him from being assaulted. But Thomas also attempted to

bring six new claims against two new defendants: Jail clerks

who conducted intake evaluations when Thomas arrived at

the facility in June 2015 and again in September 2015.

4 No. 21-2458

Based on records obtained during discovery, Thomas con-

tended that the clerks altered intake forms to obscure his men-

tal health issues, even though he informed them of his PTSD

when being processed. Specifically, Thomas asserted that the

June 2015 intake clerk entered “No” despite Thomas’s affirm-

ative response to Question 15a: “Do you have a developmen-

tal disability or mental health issue that might affect your

safety in custody?” The September 2015 clerk accurately rec-

orded Thomas’s “Yes” response to Question 15a, but the clerk

entered answers to other intake inquiries in a way that ob-

scured Thomas’s report of mental issues. (The parties debate

this last point, but we accept all allegations for present pur-

poses.)

These facts, Thomas said, meant his original failure-to-

protect theory was “incorrect.” The corrections officers, it

turns out, “did not know about the plaintiff’s PTSD, because

the intake clerks took steps, unbeknownst to the plaintiff, to

conceal that information” from the officers. The proposed

third amended complaint added three section-1983 claims

against each intake clerk, alleging failure to protect from

physical injury, violation of the Eighth Amendment’s ban on

cruel and unusual punishment, and violation of due process

under the Fourteenth Amendment. Each count was predi-

cated on the clerks “ignoring” or “changing” Thomas’s an-

swers on the intake forms regarding PTSD, “resulting in the

correctional officers being unaware of the plaintiff’s special

need for protection.”

The district court denied the motion to amend. The court

thought Thomas’s newest theory was inconsistent with posi-

tions he had taken since the suit was filed years earlier. In the

circumstances, the district court concluded, justice did not

No. 21-2458 5

require that Thomas be allowed to add the defendants and

counts, and such an addition would only cause further delay.

Thomas filed a fourth amended complaint that complied

with the court’s December 2019 instructions. Another motion

to dismiss duly followed. Thomas asked the district court to

reconsider its order denying the addition of the intake clerks.

He argued that he could not have asserted liability against the

intake clerks until he received the purportedly falsified intake

forms as part of discovery in October 2019.

Again, the district court was not persuaded that the

amendment was justified. Thomas’s new allegations, the

court thought, did not plausibly suggest how the intake clerks

were involved in the alleged failure to protect Thomas from a

fellow inmate’s attack. Nor was there any allegation that cor-

rections officers had reviewed or been shown the intake

forms. Thus, the court reasoned, there was no plausible link

between the contents of the intake forms and the assault. In

fact, the court noted, the September 2015 intake form did doc-

ument that Thomas suffered from mental health issues. So,

even if a corrections officer guarding Thomas’s unit had

looked at his intake form, he would have seen that documen-

tation.

Eventually, all of Thomas’s operative claims were either

dismissed or resolved against him on summary judgment, in-

cluding the failure-to-protect claims against the corrections

officers guarding his Jail unit. This appeal followed.

II. Analysis

The scope of Thomas’s appeal is limited. He does not chal-

lenge the district court’s disposition of the claims against

Sheriff Dart, the county, or the corrections officers. Rather, he

6 No. 21-2458

focuses on the court’s denial of his motion to amend to add

the intake clerks as defendants. 1 He challenges both the pro-

priety of the district court’s denial of leave to amend and the

court’s impartiality in making that decision. We address each

challenge in turn.

A. Leave to Amend

Generally, a party has the right to “amend its pleading

once as a matter of course.” FED. R. CIV. P. 15(a)(1). “In all

other cases,” however, “a party may amend its pleading only

with the opposing party’s written consent or the court’s

leave.” FED. R. CIV. P. 15(a)(2). Here, there is no dispute that

Thomas required leave before he could amend his complaint

to add the intake clerks as defendants.

A court “should freely give leave when justice so re-

quires.” Id. Although generously phrased, this rule still leaves

a district judge with “broad discretion” to deny leave to

amend, such as where there has been undue delay, bad faith,

dilatory motive, or repeated failure to cure deficiencies; where

undue prejudice to the defendants would result; or where

amendment would be futile. Huon v. Denton, 841 F.3d 733, 745

(7th Cir. 2016). We review a district court’s denial of leave to

amend a complaint for abuse of discretion. Id.

1 Although Thomas’s opening brief in this court was unclear, he clar-

ified at oral argument that all counts against the clerks were predicated on

their alleged suppression of his mental health information on the intake

forms. That being so, Thomas does not explain how the proposed claims

citing the Eighth and Fourteenth Amendments allege anything other than

a failure to protect. Consequently, we address only the failure-to-protect

claims. See White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (undevel-

oped arguments are waived on appeal).

No. 21-2458 7

The district judge outlined several considerations leading

her to conclude that amending the complaint to bring in the

intake clerks was not appropriate. The parties vigorously dis-

pute many issues, such as whether the proposed amendment

was brought in bad faith or after unreasonable delay, whether

it prejudiced the defense, whether it sought to join new de-

fendants improperly, and whether it fell outside the proper

limitations period. Because this court may affirm a district

court’s judgment on any basis supported by the record, Knut-

son v. Village of Lakemoor, 932 F.3d 572, 576 (7th Cir. 2019), we

need not wade into most of these debates. Instead, we resolve

this appeal on what seems to us the simplest basis: Leave to

amend was properly rejected because it would have been fu-

tile.

Amendment is futile when it seeks to add a new claim that

does not allege a viable theory of liability. See Gandhi v. Sitara

Capital Mgmt., LLC, 721 F.3d 865, 868–70 (7th Cir. 2013). Be-

cause futility—essentially failure to state a claim—is a legal

question, our abuse-of-discretion review includes de novo con-

sideration of the issue. Sandy Point Dental, P.C. v. Cin. Ins. Co.,

20 F.4th 327, 335 (7th Cir. 2021). As explained below, amend-

ment would have been futile because Thomas could not plau-

sibly allege that reasonable officers in the intake clerks’ posi-

tions would have known about a specific substantial risk to

Thomas at the time of their purportedly wrongful conduct. 2

2After the June 2015 intake screening, Thomas was released. He was

evaluated again by a different intake clerk in September 2015 when he be-

gan the period of incarceration during which he was assaulted. Given this

sequence, the issue of the initial intake clerk’s liability might also raise

causation questions. For present purposes, we can ignore those questions.

8 No. 21-2458

“Incarcerated people have a clearly established right to be

free from physical harm inflicted by others in the institution,”

and under section 1983 they may sue jail or prison staff who

fail to protect them. Kemp v. Fulton County, 27 F.4th 491, 494

(7th Cir. 2022). Such a claim brought by a pretrial detainee

arises under the Due Process Clause of the Fourteenth

Amendment, whereas a convicted inmate’s claim arises under

the Eighth Amendment’s ban on cruel and unusual punish-

ment. Id. at 495. Under either amendment, a plaintiff bringing

a failure-to-protect claim traditionally had to allege that a de-

fendant was subjectively aware of a substantial risk of serious

harm to the plaintiff. Id. at 495–96.

But that standard changed after Kingsley v. Hendrickson,

576 U.S. 389 (2015). There, the Supreme Court held that a pre-

trial detainee asserting an excessive-force claim did not need

to allege that a defendant was subjectively aware that the

force he used was excessive. Rather, he need only allege that

the force was objectively unreasonable. Id. at 396–97. We have

concluded that Kingsley's objective-unreasonableness stand-

ard applies to other Fourteenth Amendment claims by pre-

trial detainees, including failure-to-protect claims. Kemp,

27 F.4th at 495.

Now, to state a viable failure-to-protect claim under the

Fourteenth Amendment, a pretrial detainee must allege:

(1) the defendant made an intentional decision regarding the

conditions of the plaintiff’s confinement; (2) those conditions

put the plaintiff at substantial risk of suffering serious harm;

(3) the defendant did not take reasonable available measures

to abate the risk, even though a reasonable officer in the cir-

cumstances would have appreciated the high degree of risk

involved, making the consequences of the defendant’s

No. 21-2458 9

inaction obvious; and (4) the defendant, by not taking such

measures, caused the plaintiff’s injuries. Id. at 496 (adopting

the analysis from Castro v. County of Los Angeles, 833 F.3d 1060,

1071 (9th Cir. 2016) (en banc)).

The third element requires an allegation that a specific de-

fendant “was on notice of a serious risk of harm” to the de-

tainee. Id. at 497. Put another way, it must be plausibly alleged

that a reasonable officer in a defendant’s circumstances would

have appreciated the high degree of risk the detainee was fac-

ing. Id.; see also Westmoreland v. Butler County, 29 F.4th 721, 730

(6th Cir. 2022) (“A pretrial detainee need not prove subjective

elements about an officer’s actual awareness of the level of

risk, but he must prove the officer was more than merely neg-

ligent; the officer must have acted with reckless disregard in

the face of an unjustifiably high risk of harm.” (internal quo-

tation marks omitted)); Castro, 833 F.3d at 1072 (“The jury here

found that the officers knew of the substantial risk of serious

harm to Castro, which necessarily implies that the jury found

that a reasonable officer would have appreciated the risk.”).

In Kemp, for example, we explained that there was no evi-

dence that defendants “should have been on notice of a sub-

stantial risk to Kemp’s safety” because “he never reported his

verbal disagreement” with—“or the ensuing threats” from—

the three inmates who later attacked him and, “prior to the

beating, all four men had cohabited peacefully for months.”

27 F.4th at 497.

Thomas does not attempt to argue that the intake clerks

were on notice of the risk posed by the particular inmate who

ultimately assaulted him. Nor would such an allegation be

plausible, since the first threat by that inmate—the first sign

10 No. 21-2458

of his danger to Thomas—occurred in October 2015, after the

clerks’ involvement with Thomas ended.

But Thomas nevertheless maintains that he can allege a vi-

able failure-to-protect claim under the following theory:

(1) the intake clerks suppressed information about his mental

condition and caused him to be placed in the general popula-

tion rather than a medical unit; (2) being in the general popu-

lation put him at substantial risk of suffering serious harm be-

cause his mental condition made him “vulnerable”; (3) the

clerks “did not take reasonable measures to abate that risk by

not over-riding [sic] the answers [he] had given … about his

mental health”; and (4) by placing him in the general popula-

tion, the clerks caused his injuries.

These allegations still do not state a viable claim. Under

the second element, Thomas alleges that he was at substantial

risk of being assaulted because he had PTSD and was housed

in the Jail’s general population. And this is the risk Thomas

suggests—though does not clearly assert—under the third el-

ement that reasonable officers in the intake clerks’ positions

would have appreciated.

Without more, however, simply being housed in the Jail’s

general population, even while suffering from PTSD, is not a

particular enough risk in the failure-to-protect context. The

unfortunate reality is that jails and prisons are dangerous

places inhabited by violent people. See Grieveson v. Anderson,

538 F.3d 763, 777 (7th Cir. 2008). The constitutional expecta-

tion “is that guards act responsibly under the circumstances

that confront them,” not that they anticipate every potential

danger facing a detainee. Riccardo v. Rausch, 375 F.3d 521, 525

(7th Cir. 2004). As the Supreme Court cautioned in Kingsley,

an assessment of objective reasonableness must be made “on

No. 21-2458 11

the facts and circumstances of each particular case” and “from

the perspective of a reasonable officer on the scene, including

what the officer knew at the time.” 576 U.S. at 397 (internal

quotation marks omitted); accord Kemp, 27 F.4th at 495.

To be sure, the specific risk a reasonable officer would ap-

preciate need not be uniquely associated with the plaintiff or

his attacker. The risk can be based on “a victim’s particular

vulnerability” (even though the identity of the assailant is not

known before the attack), or it can be based on “an assailant’s

predatory nature” (even though the identity of the victim is

not known before the attack). Brown v. Budz, 398 F.3d 904, 915

(7th Cir. 2005); see also id. (noting that a risk can come from “a

single source or multiple sources”). But either way, the risk

must be somehow “specific to a detainee, and not a mere gen-

eral risk of violence.” Id. at 909. Thomas cannot assert an ap-

preciable risk of harm based solely on his placement in the

Jail’s general population because the “general risks of vio-

lence in prison” confront virtually every detainee. See Weiss v.

Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000).

Nor has Thomas offered a plausible reason why the intake

clerks should have been on notice that placing him in the Jail’s

general population with PTSD created a substantial risk. He

does not suggest that his having PTSD provoked, encouraged,

or made more likely his assault by another Jail inmate. And

he does not suggest that the inmate who assaulted him had a

known propensity for violence against detainees like Thomas.

This case, then, resembles In re Estate of Rice, 675 F.3d 650 (7th

Cir. 2012). There we held that a valid failure-to-protect claim

was not alleged when a mentally ill detainee was assaulted by

another inmate over the detainee’s hygiene problem because

jail personnel—though aware of the hygiene problem—“had

12 No. 21-2458

no notice that he was at risk of assault because of that prob-

lem.” Id. at 670.

Finally, Thomas asserts that the intake clerks were on no-

tice of the substantial risk he faced having PTSD while in the

general population because the Prison Rape Elimination Act

(PREA) classified him as (in his words) “vulnerable” and be-

cause Cook County Department of Corrections General Order

24.14.8.0 mandated that he be screened for potential place-

ment in a medical unit. We are unpersuaded.

In enacting PREA, Congress found that incarcerated indi-

viduals “with mental illness are at increased risk of sexual vic-

timization.” 34 U.S.C. § 30301(3). Disturbing as this finding is,

we do not see how it helps Thomas satisfy the pleading re-

quirement. Put aside that a bare “increased risk” does not nec-

essarily correlate to a “substantial risk.” See Brown, 398 F.3d at

911 (suggesting that a “substantial risk” is one that, at the very

least, is likely to materialize). Such broad and generalized leg-

islative findings cannot be the basis of risk in the failure-to-

protect context where, we reiterate, “the facts and circum-

stances of each particular case” are the critical focus. Kemp,

27 F.4th at 495. As for General Order 24.14.8.0, Thomas did

not provide a copy, and we are unable to locate one. But what-

ever the order’s specific provisions, a section-1983 claim must

be predicated on constitutional violations, not on violations of

departmental regulations or practices. Estate of Simpson v. Gor-

bett, 863 F.3d 740, 746 (7th Cir. 2017). A failure-to-protect claim

under the Fourteenth Amendment requires an allegation that

a defendant should have been aware of a specific substantial

risk, not that a defendant should have been aware of or fol-

lowed a general administrative rule.

No. 21-2458 13

Simply put, the alleged circumstances in this case would

not have suggested to reasonable officers in the intake clerks’

positions that Thomas was at substantial risk of being as-

saulted. Thus, Thomas could not state viable failure-to-pro-

tect claims against the intake clerks and his attempt to do so

was futile. The district court properly denied leave to file the

third amended complaint.

B. Purported Judicial Bias

There remains only Thomas’s suggestion of bias. He relies

on 28 U.S.C. § 455(a), which says a judge must disqualify her-

self from any proceeding in which her “impartiality might

reasonably be questioned.” (Thomas does not invoke any of

the specific bases for recusal outlined in § 455(b).) Whether

there is an appearance of partiality is assessed from the per-

spective of an objective, well-informed, thoughtful observer.

United States v. Barr, 960 F.3d 906, 919 (7th Cir. 2020). Thomas

did not raise the issue of disqualification below, but we will

consider a judicial-disqualification argument on appeal even

if it was not presented to the district court. Fowler v. Butts,

829 F.3d 788, 794–95 (7th Cir. 2016).

In Thomas’s view, bias was evident here because his at-

tempt to bring new claims against new defendants was “ig-

nored and dismissed without as much as a single mention in

the court’s orders.” As a factual matter, two minute orders re-

fute this assertion. But the main stumbling block for Thomas

is a legal one. By itself, an adverse judicial ruling does not pro-

vide a valid basis for questioning a judge’s impartiality. Liteky

v. United States, 510 U.S. 540, 555 (1994); United States v. Mar-

tin, 21 F.4th 944, 945 (7th Cir. 2021); see also United States v.

Perez, 956 F.3d 970, 975 (7th Cir. 2020) (“In addition, a judge’s

‘ordinary efforts at courtroom administration’ or docket

14 No. 21-2458

management are ‘immune’ from claims of bias or partiality.”

(quoting Liteky, 510 U.S. at 556)). Errant decisions are grounds

for appeal, not for seeking a judge’s recusal. Liteky, 510 U.S. at

555.

Thomas’s attempt to glean bias from language in some of

the district judge’s summary-judgment determinations is just

the same argument in a different guise. And it, too, fails. For

instance, he characterizes as “cavalier” the court’s determina-

tion that “no reasonable jury” could have found in his favor

on an issue. That is not disdainful rhetoric; that is the legal

standard for granting summary judgment. See, e.g., Donald v.

Wexford Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020).

A “hypersensitive or unduly suspicious person” might sense

partiality in these words, but an objective and thoughtful ob-

server could not. Barr, 960 F.3d at 920.

The district judge, despite Thomas’s ever-changing com-

plaint, managed this case with evident fairness.

III. Conclusion

The district court’s denial of leave to file the third

amended complaint was not improper, and it is certainly not

a valid basis to question the judge’s impartiality. The judg-

ment is AFFIRMED.