Klebanowski, Robert v. Sheahan, Michael F. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2572
ROBERT KLEBANOWSKI,
Plaintiff-Appellant,
v.
MICHAEL F. SHEAHAN, Sheriff,
CALLIE BAIRD, HENRY TROKA, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 5878—Virginia M. Kendall, Judge.
____________
ARGUED DECEMBER 7, 2007—DECIDED SEPTEMBER 2, 2008
____________
Before EASTERBROOK, Chief Judge, and MANION and
KANNE, Circuit Judges.
MANION, Circuit Judge. While being held as a pre-trial
detainee in the Cook County Jail on a murder charge,
Robert Klebanowski suffered two attacks at the hands
of his fellow prisoners. Klebanowski claims that his
attackers were gang members. Asserting that prison
officials were deliberately indifferent to the risks caused
by housing an armed gang population with non-gang
members and periodically leaving them unsupervised,
Klebanowski filed suit pursuant to 42 U.S.C. § 1983 alleg-
2 No. 06-2572
ing a violation of his Fourteenth Amendment rights.
The district court concluded that there was no evidence
showing that any of the defendants was deliberately
indifferent to a known risk of substantial harm to
Klebanowski, and granted the defendants’ motion for
summary judgment disposing of the case. Klebanowski
appeals, asserting that there exist genuine issues of mate-
rial fact regarding the risk he was subject to, and the
policies and conduct of the defendants in the face of that
risk. We affirm.
I.
Robert Klebanowski was arrested on February 7, 2002,
and charged with armed robbery and felony murder.
People v. Klebanowski, 852 N.E.2d 813, 815 (Ill. 2006).1 While
awaiting trial, Klebanowski was held at Division 11 of the
Cook County Jail. Division 11 is a maximum security
facility, and Klebanowski was held on the Division’s BC
tier, which housed accused murderers and had a high
concentration of gang members. Klebanowski denies
ever having been affiliated with a gang. On September 8,
2002, while in the day room with the rest of the inmates
1
These charges arose from a botched attempt by Klebanowski’s
associate, Robert Winters, to rob an off-duty lieutenant with
the Chicago police department, Gary Szparkowski. Id. at 815-16.
Klebanowski drove Winters to Szparkowski’s house, and
waited as the get-away driver. Winters took Szparkowski’s
wallet from him in the driveway of his house, but Szparkow-
ski shot and killed Winters before he was able to get away.
Klebanowski was convicted of both charges following a
bench trial, and was sentenced to 20 years’ imprisonment for
the felony murder charge. Id. at 817.
No. 06-2572 3
on the tier, Klebanowski was approached by three gang
member inmates known as Little E, Count, and Yo-Yo.
They told Klebanowski they wanted a monthly payment
of twenty dollars from him in return for their protection.
When Klebanowski refused their offer, they pushed him
into an open cell and began to beat him. Following the
beating, Little E, Count, and Yo-Yo told Klebanowski
that they would beat him again whenever he refused to
pay them. They also told him they would kill him if he
said anything to the guards.
Following the attack, Klebanowski waited in his cell
for an officer to secure the inmates at the close of the
recreation period. While the exact nature of Klebanowski’s
injuries is not set forth in the record, they were serious
enough for the officer who came to close his cell to ask
what happened to him. Fearing for his safety, Klebanowski
told her he slipped in the shower. Klebanowski’s condi-
tion caused the officer to doubt his explanation, but she
said she would record his statement as given, and she
then took him to the health care unit. Klebanowski was
eventually sent to an outside hospital for stitches on his
ear.
Upon his return to the BC tier later that day,
Klebanowski approached a small group of correctional
officers congregated on his tier and requested that he
be moved to another location in the jail because he feared
for his life. The officers told Klebanowski they knew
what had happened to him, but that it would not help
to move him because the conditions were the same wher-
ever he could be moved. Later that evening, Klebanow-
ski approached another officer and again asked to be
moved for fear for his life. According to Klebanowski, this
officer told him he would not be moved because there
4 No. 06-2572
was no room anywhere else. The officer also allegedly
told Klebanowski that no one was moved on Sundays,
which day it happened to be, and that he did not feel
like doing any extra paperwork.
At about 9:15 p.m. on the following day, the correc-
tional officer working Klebanowski’s unit announced
that he was going to open the cells and allow the inmates
a few minutes of free time before the 9:30 p.m. inmate
count and lockdown. The officer also allegedly an-
nounced that after he opened the cells he would be
leaving the deck, and would return in a few minutes.
Klebanowski exited his cell, and while he was watching
television, Little E, Count, and Yo-Yo approached him
from behind, and began to beat him again. This time,
however, Count pulled out a homemade knife, or
“shank,” that he had concealed in his pants and stabbed
Klebanowski on the left side of his stomach. Klebanowski
was stabbed two more times while being beaten, although
he was unable to see who stabbed him. Klebanowski
escaped, and he jumped over a railing from the top deck on
which they were fighting to a lower deck. As he jumped
over the rail, Count stabbed him again in the back of the
head. Klebanowski claims that once he reached the bot-
tom deck, he ran to an exit and pressed a panic button.
There was no response for five minutes following
Klebanowski’s alarm, and he continued trying to evade
Little E, Count, and Yo-Yo. Klebanowski claims that
correctional officers finally entered the deck after he
waved at them through a large window. The officers
ordered the prisoners into their cells. After learning of the
nature of the attack on Klebanowski, officers searched
all of the cells on the tier and uncovered fourteen shanks.
Klebanowski spent two days in the hospital and had
No. 06-2572 5
his spleen removed as a result of the injuries he sus-
tained during the attack.
Klebanowski filed suit in the district court on Septem-
ber 8, 2004. His original complaint stated claims against
Cook County Sheriff Michael Sheahan, Department of
Corrections Director Callie Baird, Baird’s predecessor
Ernesto Velasco,2 Superintendent of Division 11 Henry
Troka, as well as “Unknown Corrections Officers 1, 2 & 3.”
Klebanowski filed an amended complaint on May 9,
2005, adding as a defendant correctional officer Clifford
Smith.3 Finally, in his second amended complaint filed
July 14, 2005, Klebanowski named as defendants correc-
tional officers William Scott, Jermaine Smith, and Rafael
Trevizo to replace the three unknown officers sued in his
earlier complaints. Sheahan, Baird, and Troka were sued
in their official capacities, and Scott, Smith, and Trevizo
were sued individually. Klebanowski brought suit under
42 U.S.C. § 1983 claiming that in three ways the defendants
violated his rights as protected by the Fourteenth Amend-
ment: (1) by allowing his wing in Division 11 to be con-
trolled by gang members and by not separating gang
members from non-gang members; (2) by allowing
gang members to keep weapons in their cells; and (3) by
leaving inmate wings entirely unsupervised regularly
for significant periods of time. Klebanowski alleged that
these were “de facto” policies of the defendants.
2
Klebanowski voluntarily dismissed Ernesto Velasco on
February 9, 2005.
3
Klebanowski ultimately dismissed his claim against Clifford
Smith in his response to the defendants’ motion for summary
judgment after concluding that he was not involved in the
events giving rise to this suit.
6 No. 06-2572
The defendants moved for summary judgment arguing
that they had not deliberately disregarded any known risk
to Klebanowski. The parties’ submissions to the district
court consisted of Klebanowski’s deposition describing
the circumstances of his attacks, Cook County Jail rules
and regulations governing detainees, a copy of the cor-
rectional officers’ job description, the statements of indi-
vidual officers obtained during an investigation of the sec-
ond attack, and an Incident Report compiled by the Cook
County Sheriff’s Department following the second attack.
The district court granted summary judgment in favor of
the defendants. Regarding Sheahan, Baird, and Troka,
the district court concluded that Klebanowski presented
no evidence of a policy, let alone a policy of deliberate
indifference to a known risk to Klebanowski. The district
court also concluded that the officers sued in their indi-
vidual capacities were not on notice of a specific threat
to Klebanowski, and therefore had not disregarded any
known risk. On appeal, Klebanowski argues that there
existed genuine issues of material fact regarding wheth-
er the conditions of his incarceration posed a substan-
tial risk of serious harm, and whether the defendants
acted with deliberate indifference to that risk.
II.
We review the district court’s grant of summary judg-
ment de novo and draw all reasonable inferences in
Klebanowski’s favor. Butera v. Cottey, 285 F.3d 601, 605
(7th Cir. 2002). A motion for summary judgment should
be granted when “the pleadings, the discovery and dis-
closure materials on file, and any affidavits show that there
is no genuine issue of material fact.” Fed. R. Civ. P. 56(c).
However, a “[p]laintiff may not rely only on the bare
No. 06-2572 7
assertions of his pleadings.” Keri v. Bd. of Trs. of Purdue
Univ., 458 F.3d 620, 651 (7th Cir. 2006) (citing Fed. R. Civ.
P. 56(e)) (emphasis added).
Because the events described above occurred while
Klebanowski was a pre-trial detainee, he correctly states
his claims under the Due Process Clause of the Four-
teenth Amendment. Guzman v. Sheahan, 495 F.3d 852,
856 (7th Cir. 2007). “The protections for pre-trial detainees
[under the Fourteenth Amendment] are at least as great
as the Eighth Amendment protections available to a
convicted prisoner, and we frequently consider the stan-
dards to be analogous.” Washington v. LaPorte County
Sheriff’s Dep’t, 306 F.3d 515, 517 (7th Cir. 2002) (quotation
and citation omitted). It is well-settled that both Amend-
ments impose upon prison officials a duty to protect
inmates from violent assaults at the hands of fellow
prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994); see
also Fisher v. Lovejoy, 414 F.3d 659, 661 (7th Cir. 2005)
(noting that the Fourteenth Amendment extends this
protection to pre-trial detainees). An official violates that
duty “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.
Turning first to the claims against Sheahan, Baird, and
Troka, we recall that “[a]n official capacity suit is tanta-
mount to a claim against the government entity itself.”
Guzman, 495 F.3d at 859. Klebanowski must therefore
establish that the deliberate indifference to which he was
subjected came about as a result of a custom or policy
established by the officials. See Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 650, 690-91 (1978); see also
Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2000) (“A
8 No. 06-2572
plaintiff must show that municipal policymakers made
a deliberate choice among various alternatives and that
the injury was caused by the policy.”) (quotation omit-
ted). Three forms of unconstitutional policies or customs
are recognized in this context:
(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice
that, although not authorized by written law or ex-
press 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.
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003)
(quotation and citation omitted).
Klebanowski does not expressly invoke one of these
three policy types, arguing only that his attacks were
brought on by the three “de facto” policies of housing
gang members with non-gang members, allowing them
weapons, and periodically leaving them unattended.
However, the evidence in the record is insufficient to
establish the existence of any of the three types of policies
articulated in Palmer. Klebanowski submitted no evid-
ence showing an express endorsement of the policies
he claims caused his injuries. Likewise, he offered no
evidence that any policymaker caused the circumstances
of which he complained, assuming those circumstances
were actually present in the jail.
Therefore, in order to succeed on his claims against
Sheahan, Baird, and Troka, Klebanowski needed to
show that the “de facto” policies he alleged were wide-
spread practices in the jail. The only pieces of evidence
No. 06-2572 9
that would be material to showing a widespread prac-
tice are Klebanowski’s deposition wherein he describes
his attacks, and the Incident Report which revealed that
fourteen shanks were recovered after the cell search.
However, this evidence, standing on its own, is insuf-
ficient to establish the existence of a widespread practice.
See Palmer, 327 F.3d at 596 (“When a plaintiff chooses to
challenge a municipality’s unconstitutional policy by
establishing a widespread practice, proof of isolated acts
of misconduct will not suffice; a series of violations must
be presented to lay the premise of deliberate indiffer-
ence.”). The record contains no evidence of any attacks
other than the two inflicted on Klebanowski. Additionally,
Klebanowski stated during his deposition that he told
officers on two occasions he would like to be moved
because he feared for his life, but he never told those
officers that he was being targeted by gang members
because of his non-gang member status. It was only
later when he filed his grievance that he disclosed the
facts of his assault by identifying his attackers and their
gang membership. There is, however, nothing in the rec-
ord indicating that the prison officials had notice that
gang members were targeting non-gang members at the
time Klebanowski was attacked.
Regarding the fourteen shanks discovered following
the cell search, Klebanowski asserts that their presence
indicates a policy of not conducting regular searches
because that number of homemade knives “does not
show up overnight.” However, to raise a genuine issue
of material fact, Klebanowski would need some further
evidence to support his assertion that finding fourteen
shanks in a search is indicative of an official policy of
deliberate indifference. The record is silent regarding
10 No. 06-2572
the frequency with which searches were conducted, the
nature and availability of the materials from which shanks
are made, the time it takes to fashion a shank, and the
official defendants’ knowledge of any of those factors.
Likewise, assuming the inmates were left unattended
on the night of September 9 for the duration of time
Klebanowski states they were, there is no evidence sug-
gesting that they were similarly left unattended any other
time.
As the district court noted, Klebanowski “has produced
no evidence about any incident other than his own, . . .
about any knowledge on the part of any official about
general gang affiliation in the jail, or about any steps
taken or not taken to prevent violence between gang
members and non-gang members in the jail.” We agree
with the district court, and conclude more broadly that
there is no evidence indicating that Sheahan, Baird, or
Troka enacted or otherwise facilitated any of the three
“de facto” policies alleged by Klebanowski. Accordingly,
the district did not err in entering summary judgment in
their favor.
As they did before the district court, the defendants
argue that Klebanowski’s claims against the individual
defendants are time-barred because he was attacked in
September 2002, but did not identify the correctional
officers he believed were deliberately indifferent until
the filing of his second amended complaint on July 14,
2005. Under normal circumstances, the defendants’ argu-
ment would be meritorious. Klebanowski’s claims would
not relate back to the date he initiated this action because
he did not then know the identity of the officers.
Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993). The
statute of limitation for his claims is two years and he
No. 06-2572 11
did not name (and thus notify) the individual defendants
within that time period. See 735 ILCS 5/13-202; see also
King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913
(7th Cir. 2000) (noting that the statute of limitations for
§ 1983 actions is determined by the statute of limitations
for personal injury actions in the state where the incident
occurred).
Here, however, Klebanowski claims to have filed a
prison grievance on September 18, 2002, and another one
three months later as a form of appeal because he was
dissatisfied with the disposition of the first. After hearing
nothing for almost two years, he filed this action on
September 8, 2004. The defendants did not contest
Klebanowski’s description of the status of the grievance
process. This could be a problem for them because the
Illinois statute of limitations is tolled during the pendency
of those proceedings. Johnson v. Rivera, 272 F.3d 519,
522 (7th Cir. 2001). Klebanowski’s factual assertions
regarding his grievance are the only such facts in the
record. Because we take them as true, they might raise
new issues not addressed by the parties. Did Klebanow-
ski actually complete the grievance process when he did
not receive a disposition? Was a grievance process even
available to Klebanowski given the inordinate time he
alleges passed without receiving a disposition? See
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (impos-
ing on prisoners a duty to exhaust administrative rem-
edies only where those remedies are “available”).
We need not resolve these issues. We may affirm sum-
mary judgment on any basis supported in the record.
Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681 (7th
Cir. 2007). Like the district court, we will bypass the
statute of limitations questions and consider the merits
12 No. 06-2572
of Klebanowski’s claims against the individual defendants.
To establish deliberate indifference on the part of the
defendants sued individually, Klebanowski needed to
show that the officers acted with the equivalent of crim-
inal recklessness, in this context meaning that they
were actually aware of a substantial risk of harm to
Klebanowski’s health or safety, yet failed to take appro-
priate steps to protect him from the specific danger.
Guzman, 495 F.3d at 857. Klebanowski testified during
his deposition that he told officers twice on September 8
that he was afraid for his life and he wanted to be trans-
ferred off the tier. Those statements, and the officers’
knowledge of the first beating, are the only pieces of
evidence in the record that can assist Klebanowski in his
attempt to show that the officers were aware of any risk
to him. We have previously held that statements like
those made by Klebanowski are insufficient to alert officers
to a specific threat. Butera, 285 F.3d at 606 (deeming
insufficient to establish deliberate indifference state-
ments by a prisoner that he was “having problems in the
block” and “needed to be removed”). In Butera, we
deemed the inmate’s statements insufficient to give
notice to the officers because they did not provide the
identities of those who threatened the inmate, nor state
what the threats were. Id.
The facts of this case make clear our reason for re-
quiring more than general allegations of fear or the need
to be removed. By Klebanowski’s own testimony, the
officers knew only that he had been involved in an al-
tercation with three other inmates, and that he wanted a
transfer because he feared for his life. He did not tell
them that he had actually been threatened with future
violence, nor that the attack on September 8 was inflicted
No. 06-2572 13
by gang members because of his non-gang status.4 With-
out these additional facts to rely on, there was nothing
leading the officers to believe that Klebanowski himself
was not speculating regarding the threat he faced out of
fear based on the first attack he suffered. This lack of
specificity falls below the required notice an officer must
have for liability to attach for deliberate indifference.
Because the officers did not have notice of a specific
threat to Klebanowski, the district court did not err
in concluding that they were not deliberately indifferent
to a risk posed to him, and it correctly entered sum-
mary judgment in their favor.
III.
We conclude that Klebanowski failed to put forth any
evidence creating a genuine issue of material fact re-
garding the defendants’ liability for deliberate indiffer-
ence to his rights. First, there was no indication that
the defendants sued in their official capacities were
responsible for policies that subjected Klebanowski to a
substantial risk of harm. Second, there is no evidence
indicating that the defendants who were sued in their
individual capacities were aware of a substantial risk of
harm to Klebanowski. The defendants were entitled to
4
Because he is the non-moving party, we accept as true
Klebanowski’s assertion that the attacks were gang-related,
even though there was nothing about his interactions with
Count, Yo-Yo, and Little E indicating that they targeted
him because he did not belong to a gang. Later on he indicated
that the first beating occurred because he refused to pay
them twenty dollars for “protection.”
14 No. 06-2572
summary judgment on Klebanowski’s claims, and the
district court’s entry of judgment in their favor is there-
fore AFFIRMED.
9-2-08