Borello, Ronald T. v. Allison, Richard ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3515
RONALD T. BORELLO,
Plaintiff-Appellee,
v.
RICHARD ALLISON, LISA GALES,
JOHN LIEFER, and JOHN INMAN,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02 CV 51—J. Phil Gilbert, Judge.
____________
ARGUED MARCH 30, 2006—DECIDED MAY 11, 2006
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Plaintiff-Appellee Ronald Borello
(“Plaintiff”) was an inmate in Illinois state prison. He
brought suit under 42 U.S.C. § 1983 against prison employ-
ees Richard Allison, Lisa Gales, John Liefer, and John
Inman (collectively, “Defendants”), alleging that
they violated his Eight Amendment rights by failing to
protect him from his cellmate, Roberto Abadia (“Abadia”).
Defendants moved for summary judgment, arguing that
they were entitled to qualified immunity. The magistrate
judge recommended that summary judgment be granted in
favor of Defendants. The district court rejected the magis-
2 No. 05-3515
trate judge’s report and recommendation and denied
summary judgment to Defendants. Defendants appeal. For
the following reasons, we reverse the district court’s
judgment, and remand the case for entry of summary
judgment in favor of Defendants on qualified immunity
grounds.
I. Background1
Plaintiff was an inmate at Menard Correctional Center,
housed in the One North Cellhouse. His cellmate at the
time relevant to this appeal was Roberto Abadia. Defen-
dants were assigned to work in Plaintiff’s cellhouse, Allison
as a casework supervisor, Liefer as a corrections officer,
Inman as a department captain, and Gales as a nurse.
On several occasions in early January 2001, another
inmate, Michael Woodrome, talked to Inman, Allison, and
Gales and expressed concern that Abadia and Plaintiff were
assigned as cellmates. Around the same time, Plaintiff told
Gales that he wanted to be assigned to a different cell,
because Abadia was “nuts.” Gales reported Plaintiff’s
comments to Allison and Inman, who told Gales that they
were already aware of the situation. Allison and Inman
made statements to Gales that led her to believe that
Plaintiff had already declined an offer to be transferred to
a different cell.
On January 11, 2001, Abadia starting behaving in a
“particularly strange manner.” He acted confused and paced
in the cell. Also, for long stretches of time, he would place
his arms against the cell wall and repeatedly strike his
head against his arms. This behavior continued until at
least January 15, 2001.
1
The following facts are presented in the light most favorable
to Plaintiff, the party resisting summary judgment.
No. 05-3515 3
On January 12, 2001, Abadia attempted to strike Plaintiff
with his fist. Plaintiff stopped the blow before it landed.
Abadia settled down and Plaintiff did not report the
incident, feeling that the conflict had been adequately
defused.
At approximately 9:30 a.m. on January 16, 2001, Abadia
woke up Plaintiff and said he was “going home.” Abadia
began packing. Corrections officer Liefer observed Abadia’s
behavior and asked Abadia to explain himself. Abadia
said he was packing to go home. Plaintiff asked Liefer to
call someone to the cell to help Abadia. Liefer called nurse
Gales and asked her to take Abadia to see a psychiatrist.
Gales came to the cell and asked Abadia what he was doing.
Abadia said he was leaving and his family was waiting for
him in the parking lot. Gales realized that Abadia had a
considerable amount of time left on his sentence. Plaintiff
told Gales that Abadia had recently tried to strike him.
Gales called Dr. Vallabhaneni, a psychiatrist, described
Abadia’s behavior, and arranged for Abadia to visit the
doctor. Liefer removed Abadia from the cell and took him
for an examination.
About fifteen minutes after being taken to the psychia-
trist, Abadia was returned to the cell and then taken to the
exercise yard for approximately one hour. While Abadia was
in the exercise yard, Plaintiff asked to see department
captain Inman. Plaintiff was taken to Inman’s office around
10:30 a.m. Casework supervisor Allison was in Inman’s
office when Plaintiff arrived. Allison had told Inman about
the situation between Plaintiff and Abadia. Plaintiff
explained to Allison and Inman that Abadia had packed his
belongings and said he was going home, and that Abadia
had been banging his head against his arms on the cell
wall. Plaintiff asked Inman if he could be moved to a
different cell, and Inman responded “no.” Plaintiff asserts
that Inman also called him a “bug,” laughed at him, and
told him to go back to his cell. Plaintiff acknowledges,
4 No. 05-3515
however, that Inman told him that he could choose either to
go back to the cell he shared with Abadia or be placed in
segregation. Plaintiff chose to return to his cell.
Plaintiff was taken back to his cell and Abadia returned
from the exercise yard. Inman and Allison questioned
Abadia for approximately five minutes, and then left the
cell. Plaintiff and Abadia both immediately went to sleep.
Approximately one week later, on January 23, 2001,
Abadia hit Plaintiff on the side of the face with a radio,
causing serious injury to his left eye.
Plaintiff brought a § 1983 suit against Allison, Gales,
Liefer, and Inman, alleging violations of his Eighth Amend-
ment rights. Plaintiff alleged that Defendants
were deliberately indifferent to the danger posed to him
because they left him in a cell with Abadia. Defendants
moved for summary judgment on the basis of qualified
immunity. Defendants argued that they did not ignore a
risk of harm to Plaintiff, but responded reasonably to his
needs by having Abadia examined by a psychiatrist and
interviewing the two inmates. Alternatively, Defendants
argued, it was not clearly established at the time of the
incident that their actions constituted an Eighth Amend-
ment violation.
The magistrate judge recommended that the district court
grant summary judgment for Defendants. The magistrate
judge found that even if Defendants were aware of the risk
of harm to Plaintiff, they took reasonable steps in response
to the risk.
The district court rejected the magistrate judge’s report
and recommendations. The district court found that there
was sufficient evidence that Abadia presented a serious risk
of harm to Plaintiff. The district court also determined that
there was sufficient evidence that Defendants knew of the
risk Abadia posed to Plaintiff, but did nothing in response.
The district court found relevant that one week before
No. 05-3515 5
Abadia hit Plaintiff with the radio, Plaintiff asked prison
officials to move him out of the shared cell. The district
court also emphasized that Plaintiff told Defendants how
strangely Abadia had been acting in the previous weeks.
Based on this evidence, the district court denied Defen-
dants’ qualified immunity defense, finding that there was
a material question of fact as to whether Defendants’
response was reasonable.
II. Discussion
We review de novo the district court’s determination of
qualified immunity. See McGrath v. Gillis, 44 F.3d 567, 569
(7th Cir. 1995). We will affirm the district court’s judgment
if we find that Plaintiff is “present[ed] a version of the facts
that is supported by the evidence and under which defen-
dants would not be entitled to qualified immunity.” Mar-
shall v. Allen, 984 F.2d 787, 793 (7th Cir. 1993) (quoting
Hall v. Ryan, 957 F.2d 402, 404 (7th Cir. 1992)) (internal
quotation marks omitted).
Under the qualified immunity analysis, government
officials performing discretionary functions are immune
from suit if “their conduct ‘could reasonably have been
thought consistent with the rights they are alleged to have
violated.’ ” Sornberger v. City of Knoxville, 434 F.3d 1006,
1013 (7th Cir. 2006) (quoting Anderson v. Creighton, 483
U.S. 635, 638-39 (1987)). Qualified immunity protects a
defendant from liability as well as from the burden of
standing trial. For that reason, courts should determine
as early on in the proceedings as possible whether a
defendant is entitled to qualified immunity. See id.; see also
Saucier v. Katz, 533 U.S. 194, 201 (2001).
In evaluating a claim of qualified immunity, a court
conducts a two-step inquiry: “First the court must deter-
mine whether the disputed conduct, as alleged, violates a
constitutional right; second, the court must determine
6 No. 05-3515
whether that right was ‘clearly established’ at the time of
the alleged conduct.” Wernsing v. Thompson, 423 F.3d 732,
742 (7th Cir. 2005) (citing Saucier, 533 U.S. at 201). The
Court is required to consider the two steps in the proper
order. See Saucier, 533 U.S. at 201 (“If no constitutional
right would have been violated were the allegations estab-
lished, there is no necessity for further inquiries concerning
qualified immunity. On the other hand, if a violation could
be made out on a favorable view of the parties’ submissions,
the next, sequential step is to ask whether the right was
clearly established.”).
Before we reach the merits of the appeal, however, we
must consider whether we have jurisdiction to consider
Defendants’ arguments. The Court’s jurisdiction over an
appeal from a denial of a qualified immunity defense is
limited: the defendant “may not appeal a district court’s
summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a ‘genuine’
issue of material fact.” Board v. Farnham, 394 F.3d 469,
476 (7th Cir. 2005) (internal citation and quotation marks
omitted). Put another way, “it is inappropriate for us to
review a district court’s determination about the sufficiency
of the evidence.” Id.However, the Court may “review ‘abstract issues of law.’ ”
Id. (quoting Johnson v. Jones, 515 U.S. 304, 319-20 (1995)).
The Court’s “jurisdiction extends to interlocutory appeals
such as this one challenging a district court’s determination
that a set of facts demonstrate a violation of ‘clearly estab-
lished’ constitutional law and preclude the defendants from
proffering a qualified immunity defense.” Id. “When
deciding whether a public official is entitled to qualified
immunity, ‘we simply assume the disputed facts in the light
most favorable [to the plaintiff], and then decide, under
those facts, whether the [defendants] violated any of [the
plaintiff’s] clearly established constitutional rights.’ ” Id.(quoting Coady v. Steil, 197 F.3d 727, 731 (7th Cir. 1999));
No. 05-3515 7
see also Nanda v. Moss, 412 F.3d 836, 838 n.1 (7th Cir.
2005); Johnson, 515 U.S. at 311.
Taking the facts in the light most favorable to Plaintiff,
we now consider whether Defendants violated Plain-
tiff’s clearly established Eighth Amendment rights. De-
fendants had a duty as prison officials to protect Plaintiff
“from violence at the hands of other inmates.” Washington
v. LaPorte County Sheriff’s Dep’t, 306 F.3d 515, 517 (7th
Cir. 2002). However, “not every injury within a prison is an
Eighth Amendment violation.” Id.; see also Haley v. Gross,
86 F.3d 630, 640 (7th Cir. 1996).
To establish an Eight Amendment failure to protect claim,
a plaintiff must show 1) that he suffered an objectively
“sufficiently serious” injury; and 2) that he was “incarcer-
ated under conditions posing a substantial risk of serious
harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Additionally,
a prison official may be liable “only if he knows that
inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable
measures to abate it.” Farmer, 511 U.S. at 847. That
the officer had actual knowledge of impending harm can
be inferred from circumstantial evidence. Id. at 842;
James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir.
1992); Peate v. McCann, 294 F.3d 879, 882 (7th Cir.
2002). Proving deliberate indifference, however, re-
quires more than a showing of negligent or even grossly
negligent behavior. Farmer, 511 U.S. at 835; James,
956 F.2d at 699. Rather, the corrections officer must
have acted with the equivalent of criminal recklessness.
Farmer, 511 U.S. at 836-37; James, 956 F.2d at 700;
Jackson [v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th
Cir. 2002)]. Indeed, an officer who actually knew of a
substantial risk to a detainee’s safety is free from
liability “if [he] responded reasonably to the risk, even
8 No. 05-3515
if the harm ultimately was not averted, because in that
case it cannot be said that [he was] deliberately indiffer-
ent.” Peate, 294 F.3d at 882 (citing Farmer, 511 U.S. at
847, 114 S.Ct. 1970). “The test of deliberate indifference
ensures that the mere failure of the prison official to
choose the best course of action does not amount to a
constitutional violation.” Id. (citing Farmer, 511 U.S. at
844).
Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005).
In this case, Defendants admit that there are facts
indicating they had knowledge Plaintiff faced a risk of
serious harm. They argue, however, that they responded
reasonably to the risk. Defendants emphasize that they took
Abadia to see the psychiatrist, Dr. Vallabhaneni, as soon as
Plaintiff complained about Abadia’s behavior on January
16, 2001. Dr. Vallabhaneni examined Abadia and deter-
mined that he was fit to return to his cell. Defendants
maintain that they were justified in relying on Dr.
Vallabhaneni’s medical opinion. Defendants also point out
that they interviewed Plaintiff and Abadia on January 16
and determined that the situation was under control.
The district court found there was genuine issue of
material fact as to whether Defendants were justified in
relying on Dr. Vallabhaneni’s decision to send Abadia back
to his cell. The district court found relevant that there
was no evidence regarding 1) what the doctor told Defen-
dants; 2) whether the doctor’s opinion was reasonable; or 3)
what the defendants told the doctor before he examined
Abadia. The district court determined that without this
evidence, there was no way to determine whether Defen-
dants’ reliance on the doctor’s orders was reasonable.
We do not question the district court’s reading of the
record. However, we conclude as a matter of law that the
evidence is insufficient to find that Defendants responded
unreasonably to the risk of harm posed to Plaintiff. As the
party resisting summary judgment, Plaintiff had the burden
No. 05-3515 9
to go beyond the pleadings and “affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue
of material fact which requires trial.” East-Miller v. Lake
County Highway Dep’t, 421 F.3d 558, 561 (7th Cir. 2005)
(quoting Beard v. Whitley County REMC, 840 F.2d 405, 410
(7th Cir. 1998)) (internal quotation marks omitted). Plain-
tiff has not explained why it was unreasonable for Defen-
dants to rely on Dr. Vallabhaneni’s medical opinion that it
was safe to return Abadia to the cell he shared with Plain-
tiff. For instance, Plaintiff has not alleged that Dr.
Vallabhaneni had insufficient information to decide that it
was safe for Abadia to return to his cell, that Dr.
Vallabhaneni’s medical opinion was unreasonable, or that
Dr. Vallabhaneni told Defendants anything that would
indicate that it was unsafe for Abadia and Plaintiff to
continue sharing a cell. Plaintiff had an opportunity to
depose Defendants, but is unable to point to any testimony
supporting his position that Defendants should have
disregarded Dr. Vallabhaneni’s medical opinion.
Additionally, the undisputed evidence shows that Defen-
dants did not rely solely on Dr. Vallabhaneni’s opinion in
deciding that Plaintiff could remain in the cell with Abadia.
In addition to taking Abadia to see a psychiatrist, they
interviewed the two inmates to assess the situation.
Defendants determined that the tension between the
inmates had been diffused. After Defendants took these
actions, both men immediately went to sleep in the cell. The
attack on Plaintiff did not occur until a week later, and
there was no evidence that Plaintiff complained about
Abadia between January 16 and the time of the attack.
The evidence shows that Defendants responded immedi-
ately to Plaintiff’s complaints about Abadia, even if their
response turned out to be inadequate. This is in contrast to
other cases in which we have found Eighth Amendment
violations based on failure to protect, in which a prison
official ignored an inmate’s complaint that he feared
10 No. 05-3515
violence from his cellmate or did not respond to actual
violence between inmates. See, e.g., Velez v. Johnson, 395
F.3d 732, 736-37 (7th Cir. 2005) (deliberate indifference
found when prison guard failed to respond to an emergency
call made by an inmate who was being attacked by his
cellmate); Haley, 86 F.3d at 642 (deliberate indifference
found where prison officer ignored as many as seven
complaints by an inmate about his ongoing feud with his
cellmate and his cellmate’s “crazy” and “intimidating”
behavior and never checked in on the cellmates).
We emphasize that a prison official is not entitled to
qualified immunity simply because he or she takes any
action in response to a risk of harm to an inmate—that
response must be reasonable. In this case, we find that
Defendants’ response was “reasonably calculated to
quickly restore order to a chaotic situation.” Fisher, 414
F.3d at 664 (prison official was not deliberately indiffer-
ent when he responded to inmates’ attack on the plaintiff
inmate by placing all the inmates against a wall, even
though the plaintiff was then stabbed by another inmate,
because his response was reasonable under the circum-
stances). After Abadia returned from seeing Dr.
Vallabhaneni, both Abadia and Plaintiff immediately went
to sleep, leading Defendants to believe that any tension
between the cellmates was diffused. Under these circum-
stances, Defendants’ decision to leave Abadia and Plain-
tiff in the same cell “was not ‘so dangerous that the deliber-
ate nature of [Defendants’] actions [could] be inferred.’ ” Id.(quoting Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765
(7th Cir. 2002)); see also Watts v. Laurent, 774 F.2d 168, 172
(7th Cir. 1985).
Defendants may have acted negligently by not moving
Plaintiff to another cell. But as we have repeatedly stated,
“[m]ere negligence or even gross negligence does not
constitute deliberate indifference.” Snipes v. DeTella, 95
F.3d 586, 590 (7th Cir. 1996) (citing Wilson v. Seiter, 501
No. 05-3515 11
U.S. 294, 305 (1991)). Failure to protect an inmate from
harm “violates the Eighth Amendment’s prohibition of cruel
and unusual punishment only if ‘deliberate indifference by
prison officials [to the prisoner’s welfare] effectively con-
dones the attack by allowing it to happen [.]’ ” Lewis v.
Richards, 107 F.3d 549, 553 (7th Cir. 1997) (quoting Haley,
86 F.3d at 640). Based on the record below, we find that
Plaintiff has failed to show that Defendants effectively
condoned Abadia’s attack on him.2 Defendants therefore are
entitled to qualified immunity.
This should be the end of our inquiry. Because Defendant
has not shown that his constitutional rights were violated,
we need not move to the second step of the qualified
immunity analysis: whether those rights were clearly
established at the time of the attack. We note, however,
that the district court improperly simplified this second
step, finding that “[i]t is untenable to say that prison
officials don’t know what actions in this area are illegal.”
This analysis relieved Plaintiff of his burden of proof. See
Saucier, 533 U.S. at 201.
The inquiry into whether a right is clearly established
“must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Brosseau v.
2
Plaintiff asserts in his brief that Inman gave him a choice
between going to segregation or staying in his cell with Abadia.
Plaintiff decided to remain in the cell. Although Plaintiff may
have viewed being placed in segregation as an unfair punishment,
“it is common to place prisoners in segregation for their own
protection.” Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002). We
cannot consider this issue, however, because neither
party discussed it in the proceedings below. In Plaintiff ’s brief,
he cites to his own deposition testimony for the fact that he
could have moved to segregation. However, only excerpts of the
deposition are included, and the page to which he cites is not
part of the record on appeal.
12 No. 05-3515
Haugen, 534 U.S. 194, 198 (2004) (internal citation and
quotation marks omitted). It is insufficient for a plaintiff
simply to point to a recognized constitutional right and
claim that the right has been violated. A plaintiff is re-
quired to show that a violation of that right has been found
in factually similar cases, or that the violation was so clear
that an official would realize he or she was violating an
inmate’s constitutional rights even in the absence of an on-
point case. See Wernsing, 423 F.3d at 742; see also Ulichny
v. Merton Comm. Sch. Dist., 249 F.3d 686, 706 (7th Cir.
2001) (“A right is not clearly established if officers of
reasonable competence could disagree on the issue.”);
Anderson, 483 U.S. at 640 (“The contours of the right must
be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right.”).
Although it is well established that a plaintiff can bring
an Eighth Amendment claim based on a prison official’s
deliberate indifference to a substantial risk of serious harm,
there is still a question whether the facts of this case are
sufficient to establish deliberate indifference. The purpose
of the second step of the qualified immunity analysis is to
ensure that prison officials will not be held personally liable
for their official conduct when they were not aware that
their conduct violated any of an inmate’s constitutional
rights. Plaintiff has not attempted to compare this case to
any factually similar ones, or argue that the violation was
so obvious that Defendants should have been on notice that
their actions constituted deliberate indifference.
III. Conclusion
For the foregoing reasons, we REVERSE the order of the
district court and REMAND with directions to enter sum-
mary judgment for Defendants on qualified immunity
grounds.
No. 05-3515 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-06