Delbert Heard v. John Baldwin ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 20, 2018*
Decided July 26, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 17-3255
DELBERT HEARD, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 15-1439
JOHN R. BALDWIN, et al., James E. Shadid,
Defendants-Appellees. Chief Judge.
ORDER
Delbert Heard, an Illinois prisoner, alleged that prison officials violated his
Eighth Amendment rights by following a policy of assigning two maximum-security
inmates to one cell. According to Rhodes v. Chapman, 452 U.S. 337, 347–52 (1981),
double-celling inmates in cells about the size of Heard’s (60 square feet) is not per se
*The defendants were not served with process in the district court and are not
participating in this appeal. We have agreed to decide this case without oral argument
because the appellate brief and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17-3255 Page 2
unconstitutional. So the district court assessed whether Heard had alleged that the
defendants placed him with another inmate who they knew posed a specific threat to
Heard’s safety. Because the court correctly ruled that Heard did not allege such
knowledge, we affirm.
This is our second time reviewing Heard’s complaint. When the case started
several years ago, the district court dismissed the complaint at screening. See 28 U.S.C.
§ 1915A. Heard sued the warden and former warden at Pontiac Correctional Center, as
well as the Director of the Illinois Department of Corrections, alleging that
double-celling engenders violence among inmates at Pontiac. He attached press releases
from the governor’s office, one of which said that double-celling “significantly”
increases the risk of inmate attacks. He also included articles about prison murders, as
well as affidavits from inmates about tension, fighting, and the general dangers of
double-celling, both mental and physical. The district court dismissed the suit because
Heard did not allege that the defendants disregarded a specific threat to his safety.
We recruited a lawyer to assist Heard in his initial appeal. We also invited the
defendants to file a statement of position, even though they had not been served with
process in the district court. In response to this invitation, defendants conceded that
Heard was entitled to an opportunity to show the district court whether (and how)
double-celling at Pontiac had harmed him. We then summarily remanded to the district
court to afford Heard that opportunity.
On remand, Heard had two opportunities to amend. He twice filed revised
complaints that repeated allegations about the general risks inherent in double-celling
inmates. He alleged, for example, that double-celling leaves an inmate “vulnerable to
his cellmate’s assault because there are no guards armed or unarmed in the cell,” so
eventually “nature will take its course” and “violence will ensue.” Heard added that he
has “beat the crap out of every gangbanging cellmate that has attacked me,” though he
does not say how often these fights occur. He also attached a 10-year-old grievance that
he filed when housed at Stateville Correctional Center. In that grievance he reported
that he told correctional officers about the repeated attacks from one cellmate, but the
officers did nothing and the assaults continued. From these allegations, Heard
concludes that the defendants are “deliberately disregarding a known substantial risk
of serious harm” from double-celling at Pontiac. The district court again dismissed the
suit and denied Heard’s motion for relief from the judgment. It reasoned that Heard
never alleged that any defendant knew about a specific threat to his safety from a
cellmate at Pontiac before an attack occurred.
No. 17-3255 Page 3
On appeal, Heard argues that the district court applied a “heightened” pleading
standard when dismissing his complaint. But the district court appropriately analyzed
whether Heard alleged that his cell assignment created a substantial risk of harm to him
individually and that prison officials knew about and ignored the risk. See Farmer v.
Brennan, 511 U.S. 825, 838, 844 (1994); Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016)
(en banc); Gevas v. McLaughlin, 798 F.3d 475, 480–81 (7th Cir. 2015). Prison officials do
not violate the Eighth Amendment by failing to stop inmate-on-inmate violence unless
they know about and disregard a substantial, impending risk of violence from the
attacker. See Riccardo v. Rausch, 375 F.3d 521, 525–29 (7th Cir. 2004); see also Duran v.
Elrod, 760 F.2d 756, 760 (7th Cir. 1985) (observing that double bunking could violate the
Constitution if “in a particular case” it was known to cause violence); Smith v. Fairman,
690 F.2d 122, 124–26 (7th Cir. 1982) (reversing district court’s ruling that double-celling
at Pontiac violated the Eighth Amendment; record did not show substantial violence).
In Heard’s three complaints and two appellate briefs, he never asserts that
Pontiac officials disregarded any recent attack, or threatened attack, on him from a
cellmate. The only allegation that he makes about threats or attacks that he faced and
that officials disregarded occurred 10 years ago. And those were attacks by one cellmate
at a different facility. Heard has not alleged that since then any official was notified
about a specific threat to his safety at Pontiac before the threat materialized.
Heard replies that the defendants know about the risks to him individually
because, he alleges, violence occurs throughout Pontiac’s double-celled prison, thus
putting all cellmates, including him, at risk of attack. We may assume that Pontiac
officials know about the general risk of violence there and that they thus know that
Heard too faces some risk of harm. Nevertheless, Heard has not adequately alleged that
the risk of harm to him is substantial. A substantial risk is “so great” that it is “almost
certain to materialize if nothing is done.” Brown v. Budz, 398 F.3d 904, 909 (7th Cir.
2005). Heard alleges that intra-cell fights around him have occurred, but not when or
how often. Fights that occur around him are matters within his knowledge. But because
Heard does not say anything about their timing or circumstances, he does not plausibly
allege that the risk of a serious attack on him is “almost certain to materialize.”
We recognize that Heard alleges a legal conclusion that the risk of attack is
“substantial,” but “legal conclusions can provide the framework of a complaint” only if
“supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Heard has
had several opportunities to advance those factual allegations, and he has not done so.
No. 17-3255 Page 4
AFFIRMED