Butera, Ronald F. v. Cottey, Jack ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2242
Ronald F. Butera,
Plaintiff-Appellant,
v.
Jack L. Cottey, Sheriff of Marion County,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 C 2014--Larry J. McKinney, Chief Judge.
Argued November 9, 2001--Decided April 4, 2002
Before Manion, Kanne, and Rovner, Circuit
Judges.
Kanne, Circuit Judge. After plaintiff
Ronald Butera was sexually assaulted by
two other detainees in his cellblock, he
sued Jack Cottey, the Sheriff of Marion
County, under 42 U.S.C. sec. 1983,
alleging that the Sheriff deprived him of
due process under the Fourteenth
Amendment. The district court granted
summary judgment in favor of the Sheriff.
We affirm.
I. History
A. The Sexual Assault
After being arrested for robbery and
assault in December 1996, Butera was
detained in cellblock 2-I of the Marion
County Jail ("Jail"). The parties
stipulated that on January 6, 1997,
detainees Brian Mitchell and James
Eskridge sexually assaulted Butera in
cellblock 2-I. Butera testified at his
deposition that for several days before
the assault, Mitchell and Eskridge had
verbally threatened him. Further, he
stated that on one occasion prior to
January 6, Mitchell pulled down Butera’s
pants in front of other detainees,
slapped Butera’s buttocks, and exclaimed
that Butera was going to be Mitchell’s
"bitch." Butera testified that early in
the morning of January 6, he awoke to
find a towel wrapped around his face and
his arms and legs being pinned down. He
testified that Mitchell and Eskridge
punched him several times and that
Mitchell then inserted his penis into
Butera’s rectum. Butera stated that the
assault lasted about ten minutes and that
he could not scream out for help because
of the towel that was wrapped around his
face.
Butera testified that he had a
conversation with some correctional
officers approximately one week before
the assault, during which he indicated
that he was "having problems in the
block" and needed to be removed from
cellblock 2-I./1 In addition, Butera’s
mother Rena signed an affidavit averring
that shortly before the assault, she
spoke with a Jail employee over the
telephone and told him that some
detainees in cellblock 2-I had threatened
to sexually assault Butera. Her affidavit
did not identify the employee with whom
she had spoken.
On the evening of January 6, Butera
phoned his mother and told her about the
assault. Rena, in turn, informed Jail
personnel that Butera had been assaulted,
and the Jail immediately transferred
Butera out of cellblock 2-I. After being
moved to a different cellblock, Butera
was threatened by another detainee who
was Mitchell’s cousin. Butera reported
this threat to Jail personnel and told
them who had threatened him and what the
specific threat was. Immediately
thereafter, the Jail transferred him to
yet another cellblock, where he remained
until January 21, 1997.
B. Jail Policies
Sheriff Cottey and his staff devised
several policies for the protection of
detainees that were in place at the time
of Butera’s assault. First, he instituted
a classification scheme under which the
Jail housed detainees. The Jail not only
classified and assigned detainees by sex
and age, but also by behavior. With
respect to behavior, the Jail separated
detainees with a history of violence from
others. Cellblock 2-I housed males who
had been arrested for violent crimes. The
Jail also isolated detainees who
exhibited extremely violent behavior and
restricted their activities.
Jail policy also required correctional
officers to make "clock rounds" through
each cellblock at least once per hour in
order to ensure detainee safety and
prevent violence. During the clock
rounds, the correctional officers
approached the respective cellblock,
spoke to the detainees, and determined
whether any of them needed assistance.
The policy provided that if a detainee
informed Jail personnel that he was
having a problem with another detainee
and identified that detainee, one of the
two detainees would be transferred to
another cellblock.
In addition, "call cards" were available
in every cellblock. Detainees could write
a note to a correctional officer on a
call card to request protection or
identify a specific problem that they
were having. Correctional officers picked
up call cards every time that they were
in a cellblock. In addition to their
hourly rounds, correctional officers
monitored each cellblock three times a
day to distribute meals and pick up trays
and utensils afterwards. At those times,
detainees could approach the officers to
request protection or report problems, or
could place a call card on his meal tray
for the correctional officer to pick up.
Detainees were also able to leave their
cellblocks every day for attorney visits,
court dates, sick calls, or to attend
Jail church services or school classes.
During these times, correctional officers
were present to respond to detainee
requests or problems.
After his assault, Butera brought suit
in the Southern District of Indiana,
claiming that the Sheriff, knowing about
an imminent and serious risk of harm to
him, maintained detainee housing and
protection policies that were inadequate.
The district court granted summary
judgment in favor of the Sheriff, holding
that Butera had failed to present
sufficient evidence to create a genuine
issue of material fact.
II. Analysis
Butera makes two arguments on appeal for
why the Sheriff should be held liable for
his injury: (1) Butera and his mother
gave the Sheriff, or at least Jail
personnel, actual notice that he was in
danger and no one attempted to prevent
the assault and (2) that despite
generalized knowledge of an imminent and
serious risk of harm to Butera, the
Sheriff maintained policies that were
inadequate to protect him from assault.
The district court granted summary
judgment in favor of the Sheriff with
respect to both of Butera’s arguments. We
review a grant of summary judgment de
novo, viewing all of the facts, and
drawing all reasonable inferences
therefrom, in favor of the nonmoving
party. See Cent. States, Southeast and
Southwest Areas Pension Fund v. White,
258 F.3d 636, 639 (7th Cir. 2001).
Summary judgment should be granted if the
"pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law." Cengr v. Fusibond Piping
Sys., Inc., 135 F.3d 445, 450 (7th Cir.
1998) (quoting Fed. R. Civ. P. 56(c)).
Because Butera was a pre-trial detainee
and had not yet been convicted of a
crime, his section 1983 claim is analyzed
under the Fourteenth Amendment’s Due
Process Clause rather than under the
Eighth Amendment’s Cruel and Unusual
Punishment Clause./2 See Frake v. City
of Chicago, 210 F.3d 779, 781 (7th Cir.
2000). Accordingly, Butera is protected
from the Sheriff’s "deliberate
indifference" to his safety. Id. A
finding of deliberate indifference
requires a showing that the Sheriff was
aware of a substantial risk of serious
injury to Butera but nevertheless failed
to take appropriate steps to protect him
from a known danger. See id. at 782. The
Sheriff, however, was not required to
ensure Butera’s safety and "[t]he
existence or possibility of other better
policies which might have been used does
not necessarily mean that the [Sheriff]
was being deliberately indifferent." Id.
Further, because the Sheriff is the
defendant in this case, and not the
individual correctional officers, Butera
must show that "deliberate action
attributable to the [Sheriff] directly
caused a deprivation of federal rights."
Id. at 781 (quotation omitted). This
means that Butera must show that the
Sheriff, and not just Jail employees,
"made a deliberate choice among various
alternatives and that the injury was
caused by the policy." Id. (quotation
omitted). An unconstitutional custom or
policy can take one of three forms:
(1) [A]n express policy that, when
enforced, causes a constitutional
deprivation; (2) a widespread practice
that, although not authorized by written
law or express municipal policy, is so
permanent and well settled as to
constitute a "custom or usage" with the
force of law; or (3) an allegation that
the constitutional injury was caused by a
person with final policy-making
authority.
See Brokaw v. Mercer County, 235 F.3d
1000, 1013 (7th Cir. 2000) (citation
omitted). Both of Butera’s arguments are
"deliberate indifference" arguments--if
the Sheriff had notice of a substantial
risk of serious harm to Butera, either
through actual notice given to him by
Butera and his mother, or through the
general conditions at the Jail, and
hedevised no policies or devised
inadequate policies to attempt to prevent
the assault, he would be "deliberately
indifferent" and Butera would prevail.
Butera first argues that the Sheriff, or
at least Jail personnel, had actual
notice of a specific threat to him and
that no one attempted to prevent his
assault. Butera relies heavily on the
following conversation that he had with
some correctional officers about a week
before the assault:
Q: What exactly did you say to them?
A: I told them I was having problems in
the block. And at the time I was scared
and they asked me what kind of problems I
was having and I just said I need [to be]
removed, you know, because they weren’t
there to protect me. I just told them I
was having problems and I needed [to be]
removed and they said they couldn’t do
it.
. . .
Q: And what did they say?
A: They asked me why I needed off the
block and I told them I needed off the
block. And they said we can’t pull you
off the block.
Q: And that’s all the information that you
gave them?
A: Yeah.
Q: You didn’t say why or who was bothering
you?
A: No.
He also claims that Rena’s phone call to
the Jail put the Sheriff on notice of a
risk of harm to Butera. However, neither
of these communications was sufficient to
give the Sheriff actual notice of a
specific risk of serious harm so as to
find the Sheriff deliberately indifferent
for failing to take appropriate steps to
prevent the assault. See Lewis v.
Richards, 107 F.3d 549, 553 (7th Cir.
1997).
In Lewis, after the inmate plaintiff had
been raped by two members of the Gangster
Disciples gang, he reported the incident
to prison officials and requested
protection from those inmates who had
raped him. See id. at 551. In response,
the prison transferred him to another
dormitory. See id. Before he was
transferred, the plaintiff was also
threatened by twenty gang members, but
the plaintiff did not report this
incident to the prison. See id. Two
different inmates, both members of the
Gangster Disciples, raped the plaintiff
in the second dormitory. See id. at 551-
52. Thereafter, the plaintiff sued the
prison officials to whom he had allegedly
reported the first rape, claiming that
they were deliberately indifferent to the
risk that the plaintiff would be raped a
second time. See id. at 552. The district
court granted summary judgment in favor
of the defendants, and we affirmed. See
id. at 552-53. We held that the prison
officials were not deliberately
indifferent because although the
plaintiff had requested protection from
the inmates who had raped him the first
time, he had not "specifically [sought]
protection from the two inmates who
assaulted him on [the second] occasion
[nor] identif[ied] the twenty gang
members who threatened him after the
first rape." Id. at 553. Therefore, the
defendants were not deliberately
indifferent because the plaintiff could
not "demonstrate that defendants had
specific knowledge of a threat to [the
plaintiff] by the inmates who assaulted
him [on the second occasion]." Id.
(emphasis added).
Butera’s statements to the correctional
officers that he "was having problems in
the block" and "needed to be removed"
were insufficient to give the Sheriff
notice of a specific threat. Butera did
not identify who had threatened him and
what the threats were. Indeed, Butera did
not even disclose in general terms that
he was afraid of being assaulted. In
fact, prior to summary judgment, Butera
conceded that "prior to the assault on
January 6, 1997, [he] did not report to
Jack Cottey ("Cottey") or to any
personnel at the Marion County Jail that
he had been threatened or assaulted in
cell block 2-I." Further, Butera
testified that no correctional officer
had seen Mitchell or Eskridge threaten
him. As in Lewis, because Butera did not
specifically seek protection from the
detainees who had assaulted him and did
not disclose the specific threats that
Mitchell and Eskridge had made to him, he
could not demonstrate that the Sheriff
was aware of a substantial risk of injury
to him. See id. Further, even if Butera
could show that the correctional officers
knew about a risk of harm to Butera, this
is not enough, without more, to impute
knowledge to the Sheriff. Cf. Williams v.
Heavner, 217 F.3d 529, 532 (7th Cir.
2000) (noting that municipalities are not
vicariously liable for constitutional
torts).
For similar reasons, Rena’s phone call
to the Jail did not put the Sheriff on
notice of a specific risk of harm to
Butera. According to Rena’s affidavit,
she complained to an unidentified Jail
employee about threats that some
detainees in cellblock 2-I made to
Butera. By mentioning that the threats
concerned sexual assault, she provided
more information than Butera did in his
conversation with the correctional
officers. Nevertheless, her complaint to
an unidentified Jail employee concerning
general threats of sexual assault by
unnamed detainees did not put the Sheriff
on notice of a specific threat of harm to
Butera. See Lewis, 107 F.3d at 553.
Further, Butera has presented no evidence
that the person Rena spoke with was a
policymaker. If she spoke with a mere
employee as opposed to a policymaker,
Butera’s claim against the Sheriff fails
because, as discussed above, the Sheriff
cannot be held liable under a respondeat
superior theory. See Williams, 217 F.3d
at 532. Therefore, with no evidence that
a policymaker had notice of Rena’s
complaint, the fact that she called an
anonymous employee does nothing to
further Butera’s claim against the
Sheriff.
Butera also argues that even if the
Sheriff did not know of the specific risk
to him, the general conditions at the
Jail put the Sheriff on notice that his
detainee policies were inadequate. For
example, he argues that sexual assaults
(as well as murders and drug-related
offenses) occurred so frequently at the
Jail that there was a "systematic pattern
of violence." He argues that this pattern
of violence was so pervasive that the
Sheriff was deliberately indifferent for
maintaining the policies of housing all
of the male, violent detainees in
cellblock 2-I and of patrolling cellblock
2-I only once per hour.
In Frake, we addressed whether the
pervasiveness of inmate suicides at
Chicago detention facilities coupled with
the fact that the City continued to
detain people in cells with horizontal
cross-bars amounted to "deliberate
indifference." 210 F.3d at 782. In that
case, Robert Frake, a pre-trial detainee
at a Chicago detention facility,
committed suicide by hanging himself from
the horizontal cross-bars in his cell.
See id. at 781. His father brought suit
against the City of Chicago, claiming
that the City knew about the substantial
risk of detainees committing suicide, but
still failed to take the appropriate
preventative measure of removing the
horizontal cross-bars from the cells. See
id. The plaintiff argued that the number
of suicides at Chicago detention
facilities--20 suicides and 163 attempted
suicides between December 1990 and
November 1997--proved that the City was
deliberately indifferent. See id. at 782-
83. We rejected that argument, holding
that:
We do not think that numbers can tell the
whole story. It is possible that one or
two suicides coupled with other evidence
could add up to deliberate indifference
in a proper case. The fact of an
unfortunate, but not outrageous, number
of suicides, however, given other
precautions which may be taken, might not
. . . . Given the fact that the City took
other precautions with detainees, we
cannot find that the continued use of the
cells as constructed equals deliberate
indifference.
Id. at 783 (citations omitted). In so
holding, we noted that the City did not
have knowledge of Frake’s suicidal
tendencies and that the City took
precautionary measures such as training
their employees and checking the cells
every fifteen minutes. See id.
To support his assertion that violence
was so prevalent at the Jail as to put
the Sheriff on notice of a substantial
risk of serious harm to him, Butera
relies on the deposition testimony of
Detective Stephen Summers./3 Detective
Sum-mers testified that between 1993 and
1997, he investigated about fifty fights
between detainees and about ten to
fifteen allegations of sexual assault.
However, there is no evidence that any of
the fights or incidents of sexual assault
that Detective Summers investigated
actually occurred, or if so, that they
occurred in cellblock 2-I. In fact,
contrary to Butera’s position,
correctional officer Francisco Gonzalez
testified that he knew of no sexual
assaults that occurred at the Jail in
1996 or 1997. Thus, Detective Summers’
testimony, without more, does not support
Butera’s claim. See Strauss v. City of
Chicago, 760 F.2d 765, 768-69 (7th Cir.
1985) (holding that complaints of
unconstitutional activity standing alone
do not establish pattern for section 1983
liability). Butera’s claim fails because
he has offered no evidence that any
incident of sexual assault, other than
his own, has ever occurred in cellblock
2-I. This flaw is fatal to Butera’s claim
in this context because he alleges that
the Sheriff’s policy of housing all of
the male, violent detainees in one
cellblock caused his injury.
Our conclusion is also supported by
evidence that the Sheriff had taken
precautionary measures against violence
in the cellblocks. Major Steven Davis
testified about the extensive training
that Jail correctional officers undergo.
For example, he testified that Jail
correctional officers attend a two-week
specialized training course and receive
yearly in-service training dealing with
corrections issues such as detainee
violence. Further, during the time period
of Butera’s assault, the correctional
officers patrolled cellblock 2-I once per
hour as well as during meals. During
these times, the detainee could identify
another detainee with whom he was having
problems, and the Jail would transfer one
of the detainees to another cellblock. If
the detainee wanted to post an anonymous
complaint, he could do so via a call
card. Finally, the Jail separated the
most violent detainees from the rest of
the detainee population.
Butera argues that the Sheriff should
have implemented different measures, such
as placing 24-hour video surveillance
cameras in the cellblocks. However, the
"existence or possibility of other better
policies which might have been used does
not necessarily mean that the [Sheriff]
was being deliberately indifferent."
Frake, 210 F.3d at 782. Further, Butera
claims that the existing policies were
ineffective because due to fear of
retaliation, detainees were loathe to
snitch on each other and because
detainees would conceal violent behavior
by dimming cellblock lights or by hiding
behind blankets draped over bunk beds.
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, detainees could still dim the
lights or hide under blankets. See Estate
of Novack v. County of Wood, 226 F.3d
525, 530 (7th Cir. 2000) (noting that for
plaintiff to prevail, he must show that
the policy was the "direct cause" of or
"moving force" behind the constitutional
violation).
In sum, Butera has failed to show that
the Sheriff had actual notice of a
substantial risk of harm to him. Further,
Butera has failed to show that prior to
January 1997, any incident of sexual
assault took place in cellblock 2-I.
Finally, the Sheriff implemented
precautionary measures to prevent
detainee violence. The combination of
these factors in this case means that the
Sheriff was not deliberately indifferent.
See Frake, 210 F.3d at 782.
III. Conclusion
For the foregoing reasons, the district
court’s grant of summary judgment is
AFFIRMED.
FOOTNOTES
/1 The record is unclear as to whether this conver-
sation involved only one correctional officer or
several officers.
/2 As a practical matter, this distinction does not
affect Butera’s claim, as we have "held that sec.
1983 claims brought under the Fourteenth Amend-
ment are to be analyzed under the Eighth Amend-
ment test." Henderson v. Sheahan, 196 F.3d 839,
844 n.2 (7th Cir. 1999).
/3 Butera also relies on an order entered by Judge
Dillin of the Southern District of Indiana. In
that order, entered in May 1999, Judge Dillin
considered whether to reimpose a population cap
on the number of Jail detainees that was in
effect at the time of Butera’s assault, but that
was terminated thereafter. Judge Dillin noted
that violence amongst and against juvenile de-
tainees occurred at the Jail and that the moni-
toring of the west wing of the Jail was defi-
cient. However, despite this, Judge Dillin ruled
against reimposing a limit on the number of
people that could be detained at the Jail. This
order does nothing to strengthen Butera’s claim.
First, Judge Dillin discussed Jail conditions as
they existed in 1999, nearly two years after
Butera’s assault. Further, by holding that popu-
lation caps were not necessary, if anything, the
order supports the position that the Jail’s
housing policies were not deficient. Finally,
although noting that the monitoring of cellblocks
was deficient, Judge Dillin made no findings with
respect to whether these deficiencies were the
result of the Sheriff’s policy or custom.