Grieveson, Joseph R. v. Anderson, Frank J. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4681
JOSEPH R. GRIEVESON,
Plaintiff-Appellant,
v.
FRANK J. ANDERSON,1 Marion County
Sheriff, PATRICK COMMISKEY, CHRIS
BOOMERSHINE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 C 1862—John Daniel Tinder, Judge.
____________
ARGUED SEPTEMBER 21, 2007—DECIDED AUGUST 18, 2008
____________
Before EASTERBROOK, Chief Judge, and KANNE and
ROVNER, Circuit Judges.
KANNE, Circuit Judge. During Joseph Grieveson’s de-
tainment at the Marion County, Indiana, Jail, he allegedly
1
At the time this suit was filed, Jack Cottey was the Sheriff of
Marion County. Frank Anderson is the current Sheriff, and
Anderson is automatically substituted as the defendant
under Federal Rule of Appellate Procedure 43(c).
2 No. 05-4681
suffered several attacks at the hands of other inmates, and
one attack by an unnamed jail guard. He brought suit
against numerous government defendants in their indi-
vidual and official capacities, raising constitutional and
state-law claims. The United States District Court for
the Southern District of Indiana dismissed some of the
claims and granted summary judgment in favor of the
defendants for the remaining claims. We affirm the dis-
trict court’s grant of summary judgment in favor of the
Marion County Sheriff on the official-capacity claims.
However, with respect to the individual-capacity claims
against individual defendants, we affirm in part and
reverse in part. There is a genuine issue of material fact
surrounding whether one jail guard was deliberately
indifferent to Grieveson’s safety needs, and there is a
genuine issue of material fact about whether three jail
guards were deliberately indifferent to Grieveson’s med-
ical needs. Finally, we reverse the district court’s dis-
position of Grieveson’s negligence claims against certain
defendants under Indiana law.
I. HISTORY
We review the district court’s entry of summary judg-
ment in favor of the defendants de novo. See Scott v.
Edinburg, 346 F.3d 752, 755 (7th Cir. 2003). Given this
standard of review, we must construe all inferences in
favor of the nonmoving party, in this case Grieveson, id.,
and recount the facts in the light most favorable to him,
Steen v. Myers, 486 F.3d 1017, 1019 (7th Cir. 2007).
For about eleven months between May 2000 and Janu-
ary 2002, Grieveson, a Canadian citizen, was a federal
pretrial detainee being held at the Marion County Jail on
No. 05-4681 3
charges of illegal reentry of a deported alien. During the
first six months of his tenure at the jail in Indianapolis,
Grieveson shared a four-person cell with Art Schlichter,
a former quarterback for the Indianapolis Colts. During
that same time period, a federal grand jury in Indianapolis
was investigating Schlichter’s ongoing involvement in
gambling schemes—particularly schemes involving
Linda Wagoner, Schlichter’s attorney, who was al-
legedly smuggling items into the jail for Schlichter. One
of Grieveson’s friends on the outside, Norman Buff,
was “involved with the Grand Jury in catching [Wagoner].”
Out of concern for Grieveson, Buff had spoken with
Sergeant Chris Boomershine on several occasions to
request that Grieveson be moved to another location
within the jail. Grieveson believed that he was con-
sidered a “snitch” within the jail because of his associa-
tion with Buff.
Grieveson was moved out of Schlichter’s cell on Novem-
ber 18, 2000, into a large “barracks-style” area that housed
approximately 45 inmates. Shortly thereafter, on Novem-
ber 30, Grieveson was beaten unconscious by another
inmate. Grieveson states that throughout the beating,
the aggressor called Grieveson a “snitch” and said the
beating was a “favor for Schlichter.” The next day around
noon, Grieveson told Officer Smith that his nose was
broken, that he was bleeding down his throat, and that he
was in intense pain. Smith responded that she would “let
‘Medical’ know.” Grieveson proceeded that afternoon to
tell defendants, Officers Cornell, Duncan, and Highbaugh,
of his injuries, but he did not receive any medical assis-
tance. Even Grieveson’s sister called the jail to urge them
to provide Grieveson with medical care. Then, on Decem-
ber 2, Grieveson complained of his injuries again to Offi-
4 No. 05-4681
cer Duncan; she had Grieveson fill out a “medical call
card.”
On December 3, Grieveson was taken to the hospital,
where it was confirmed that he had a broken nose. He
was prescribed pain medication and advised to meet
with a plastic surgeon. When back at the jail, Grieveson
requested his prescribed medication, but a jail guard
refused to give it to him, saying, “You don’t need it. Be a
man and stop whining.” Eventually, Grieveson was
given all of his prescribed pain killers at once. A stronger
prisoner took the medication away from him, and as a
result, Grieveson was left without medication for a
week. Grieveson submitted a timely grievance to jail
officials, reporting the delays of Officers Cornell, Duncan,
and Highbaugh in obtaining medical help for him after
his injuries. The jail’s response stated, “it is unfortunant
[sic] that it took that long to send you to [W]ishard . . . .”
The jail disposed of the grievance as “ujs” (presumably
meaning unjustified).
Grieveson suffered a second inmate attack on Decem-
ber 31, 2000. The jail’s activity report states that Grieveson
said he had “slipp[ed] in puddled water.” But Grieveson
avows that when he was alone with the officers, he told
them he had been assaulted and that he wanted to be
moved to a different cell block. At one point after the
December 31 assault, Grieveson requested that he re-
ceive only one dose of medication at a time—instead of
his entire prescription at once. A jail medical record
dated January 9, 2001, confirms that Grieveson made a
request for intermittent disbursements of his prescrip-
tion medication.
On or about January 17, 2001, Grieveson suffered a
third attack by another inmate. Grieveson alleges that two
No. 05-4681 5
days passed before he was taken to the hospital—on
January 19, 2001—and medical attention came only after
his family members made numerous calls to the jail about
his injuries. The jail activity records indicate that
Grieveson suffered the injuries on January 19. In addition
to bruising and bleeding injuries, Grieveson’s tooth was
broken during this assault, and he had to have it sur-
gically removed. Grieveson reported that he “layed [sic]
there with my face beaten in for two (2) days in severe
pain and suffering before receiving medical treatment.”
Grieveson filed a grievance about the third attack, again
stating that his medical treatment was unduly delayed. The
response from the jail was: “this is an unfortunant [sic]
situation but you did go and get your tooth fixed at
[W]ishard. [T]he medical office sees a lot of inmates on
any given day and sometimes they do miss some.” Again,
the disposition was “ujs” (unjustified). Grieveson was
given his entire prescription of pain medication at one
time—only to have it stolen by another inmate.
Grieveson’s fourth set of injuries—on January 22,
2001—allegedly came after a jail guard slammed
Grieveson’s arm in a steel door and threw him repeatedly
against the bars in a basement holding cell. Apparently
the guard told Grieveson to stop complaining and stop
“causing trouble.” Grieveson was taken to the hospital,
where he was treated for a shoulder injury. He was pre-
scribed pain medication and told that initial treatment
included applying cold packs to the injury. At the jail,
Grieveson requested ice packs but jail officials told him,
“we don’t give those out here.” The jail guards again gave
Grieveson his entire prescription of pain medicine at one
time. The medicine was again stolen from Grieveson by
another inmate.
6 No. 05-4681
In early February 2001, Grieveson was assaulted by
another inmate who “pummeled” him in the face because
he was snoring. And then in early March, Grieveson was
assaulted for the sixth time, after he tried to defend his
food and other personal items from other inmates.
Grieveson alleges that Officer Highbaugh witnessed the
sixth assault, and later told Grieveson “to learn how to
fight harder or don’t come to jail.” On March 6, Grieveson
told a jail medical officer that he had been in an “alterca-
tion” two days before. He complained of pain in his
ribs and arm.
On March 14, 2001, Grieveson filed a grievance with the
jail about his assaults in general and his fears. He specifi-
cally asked to be moved to a safer block:
As you know I have been beaten and assaulted
over 6 times and [through] no fault of mine. I am
real scared of my life in here and the guards are
even afraid to come into the block[.] How do you
think we fell[?] I feel like I am [losing] my mind
in here and going to have a breakdown. I ask you
to move me to another jail or at the least move me
to a safer block.
At the same time, Grieveson’s friend, Buff, was also trying
to secure Grieveson relocation. In March, Buff spoke
with Officer Boomershine in person and explained that
he feared for Grieveson’s safety and he urged Boomershine
to relocate Grieveson.
The seventh attack Grieveson suffered, on March 21,
2001, was by far the worst. A fellow inmate, Robert
White, hit Grieveson in the face and slammed his face
into a steel table, knocking Grieveson unconscious.
Grieveson stated in an affidavit that at the time of the
attack, White “was angry over losing in a card game.” Once
No. 05-4681 7
he woke up, Grieveson waited 90 minutes until a guard
was within shouting range. He also called his sister to ask
her to call for help. Grieveson suffered serious injuries
including a broken left eye socket, damage to his optic
nerve, and injuries to his ribs, face, jaw, and nose. The
attacker was allegedly a former client of Wagoner,
Schlichter’s attorney. Grieveson first told the jail guards
that he slipped in the shower, but when he was out of
the earshot of other inmates, he claims he told them he
was attacked.
Grieveson saw a plastic surgeon on March 28, 2001, and
was told that he needed immediate surgery to correct the
damage to his eye. Surgery was scheduled for some
point in the next few days, but Grieveson was not told the
exact day and time of the surgery. Unfortunately,
Grieveson did not have surgery as originally scheduled
because on March 30, 2001, he was moved from Marion
County Jail to Park County Jail, and then to the Federal
Medical Center in Minnesota (FMC). In the process of the
moves, Grieveson’s medical records were not supplied
immediately to the new detention facilities. When the FMC
did receive his medical records—approximately 35 days
after Grieveson left the Marion County Jail—it was as a
result of Grieveson’s attorneys’ efforts to have them
forwarded. According to Grieveson, by the time he saw
another doctor about his eye, it was too late to correct
the damage.
When Grieveson returned to the Marion County Jail
approximately nine months later, he had a prescription
for pain medicine. He alleged that he was given, at one
time, an entire bottle of 100 pills of Ultram—a prescription,
narcotic-like pain reliever. See webmd.com, Ultram
Oral, http://www.webmd.com/drugs/drug-11276-Ultra
8 No. 05-4681
m+Oral.aspx?drugid=11276&drugname=Ultram+Oral (last
visited Aug. 8, 2008). Two inmates stole the pills from
Grieveson, slapping his mouth in the process. Grieveson
did not put up a fight and questioned why “medical
staff and jail guards [would] give an inmate in jail with
45 other inmates . . . about 100 pain pills knowing [the
recipient] was in severe pain wearing a patch over [his]
left eye and knowing [he] had no way of locking up
anything.”
Grieveson was convicted and placed in federal prison to
serve out his sentence. Grieveson brought suit against
various defendants including the Marion County Sheriff;
Marion County Jail Commander Patrick Commiskey;
Marion County Sergeant Chris Boomershine; Marion
County Jail Officers Highbaugh, Cornell, and Duncan; and
United States Marshal Frank Anderson, in their official
and individual capacities, as well as the City of Indianapo-
lis.2 The action combined state-law negligence and con-
stitutional claims, and federal claims under 42 U.S.C.
§ 1983 and 28 U.S.C. § 1350 (the Alien Tort Claims Act). The
United States District Court for the Southern District
of Indiana dismissed some claims and granted summary
judgment in favor of the defendants on the remaining
claims. This appeal ensued.
2
Grieveson initially brought two suits against two groups of
defendants—one in state court, the other in federal court. The
state court suit was removed to federal court and the cases
were consolidated. The claims against Frank Anderson in his
individual capacity and those against the City of Indianapolis
were dismissed before the summary judgment stage in a
May 25, 2004 order, and are not at issue in this appeal.
No. 05-4681 9
II. ANALYSIS
On appeal, Grieveson argues that the district court’s
opinion was fundamentally flawed and that, consequently,
we should reverse summary judgment and remand for
further proceedings. He also challenges the district
court’s resolution of his official- and individual-capacity
claims, arguing that his Eighth Amendment rights
were violated both by the unconstitutional customs and
practices of the Marion County Jail, and by the deliberate
indifference of jail officers to his safety and medical
needs. Finally, Grieveson argues that the district court
erred by granting summary judgment to the defendants
on his state-law negligence claims.
A. Sufficiency of the District Court Opinion
Because we are reviewing the district court’s decision
de novo and we decide the merits of Grieveson’s substan-
tive arguments, it is not necessary for us to respond to
Grieveson’s technical challenges to the district court’s
opinion. See Smith v. Potter, 445 F.3d 1000, 1009 n.20 (7th
Cir. 2006) (“[W]e need not resolve this issue to dispose of
[the] appeal . . . .”); see also Springer v. Durflinger, 518
F.3d 479, 483 (7th Cir. 2008).
Grieveson does, however, raise a valid point concerning
the district court’s dismissal of the official-capacity
claims against the Marion County Sheriff. The district
court stated that the previous “dismissal of claims against
the City of Indianapolis also put[ ] to rest claims against
the defendant individuals in their official capacities.” In
so deciding, the district court may have conflated the
City of Indianapolis and the Marion County Sheriff’s
Department, viewing them as the same governmental
10 No. 05-4681
entity. Such a mixup is understandable in light of the
evolving consolidation status of the City of Indianapolis
and Marion County, and their law enforcement divisions.
See IMPD History, http://www.indygov.org/eGov/
IMPD/About/History/home.htm, last visited Aug. 8,
2008; see also Ind. Code §§ 36-3-1-1 to 36-3-4-24; Scott
v. Consol. City of Indianapolis, 833 N.E.2d 1094, 1100 (Ind.
Ct. App. 2005).
But the consolidation of the City and County, as well as
the consolidation of their law enforcement departments,
has been only partial—the Jail Division of the Marion
County Sheriff’s Department has not merged with the
City of Indianapolis Police Department. See City-County
General Ordinance No. 100, § 281-612 (2005). Further, the
Sheriff’s Department has always remained a separate
entity from the City of Indianapolis. Therefore, the dis-
missal of the City of Indianapolis in Grieveson’s litigation
did not effectuate the dismissal of Grieveson’s official-
capacity claims against the Marion County Sheriff. Even
though the district court dismissed claims against the
Sheriff in his official capacity, it also decided that, as a
matter of law, “the pleadings and evidentiary record
here do not support a claim of municipal liability.” We
will analyze that decision de novo, and turn now to the
official-capacity claims.
B. Section 1983 Official-Capacity Claims
Grieveson’s claims against the Sheriff in his official
capacity are treated as claims against Marion County itself.
Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir.
2006). Governmental entities cannot be held liable for the
unconstitutional acts of their employees unless those
No. 05-4681 11
acts were carried out pursuant to an official custom or
policy. Id. See also Monell v. Dep’t of Soc. Servs, 436 U.S. 658,
694 (1978). “The ‘official policy’ requirement for liability
under § 1983 is to ‘distinguish acts of the municipality from
acts of employees of the municipality, and thereby make
clear that municipal liability is limited to action for
which the municipality is actually responsible.’ ” Estate of
Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 515 (7th
Cir. 2007) (quoting Pembaur v. City of Cincinnati, 475
U.S. 469, 479 (1986)). See also Lewis v. City of Chicago, 496
F.3d 645, 656 (7th Cir. 2007) (“Misbehaving employees are
responsible for their own conduct, ‘units of local gov-
ernment are responsible only for their policies rather than
misconduct by their workers.’ ” (quoting Fairley v. Fermaint,
482 F.3d 897, 904 (7th Cir. 2007))).
In order to survive summary judgment on a § 1983
official-capacity claim, the plaintiff must present evid-
ence demonstrating the existence of an “official policy,
widespread custom, or deliberate act of a county deci-
sion-maker of the municipality or department.” Wagner
v. Washington County, 493 F.3d 833, 836 (7th Cir. 2007).
Further, the plaintiff must show that the official policy or
custom was the cause of the alleged constitutional viola-
tion—the “ ‘moving force’ behind it.” Estate of Sims, 506
F.3d at 514 (quoting City of Canton, Ohio v. Harris, 489 U.S.
378, 389 (1989)).
Grieveson contends that in spite of the jail’s formal
written grievance policy, the actual grievance process
was a sham and provided no effective way for inmates to
communicate their safety concerns, complaints, and fears
to jail officials. According to Grieveson, the absence of an
adequate grievance procedure left him more susceptible
to assaults and thus deprived him of his Eighth Amend-
12 No. 05-4681
ment right to be free from cruel and unusual punishments.
See U.S. Const. amend. VIII. Grieveson also points to the
jail’s method of dispensing prescription medicine as an
official policy or custom that violated his constitutional
rights by placing him at a direct risk of harm.
Grieveson means to argue under the Due Process Clause
of the Fourteenth Amendment, U.S. Const. amend. XIV,
because he was a pre-trial detainee while at the Marion
County Jail and was therefore not subject to punishment at
all. See Brown v. Budz, 398 F.3d 904, 910 (7th Cir. 2005); see
also Guzman v. Sheahan, 495 F.3d 852, 856 (7th Cir. 2007).
Either way, the inquiry under both provisions of the
Constitution is essentially the same. Id.; Weiss v. Cooley,
230 F.3d 1027, 1032 (7th Cir. 2000) (noting that there is
“little practical difference between the two standards.”);
Henderson v. Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999).
1. The Jail’s Grievance Procedure
The posture of Grieveson’s grievance-procedure argu-
ment is that the Marion County Jail’s grievance process
itself “consciously created the conditions in which harm was
almost certain to occur.” (emphasis in Grieveson’s brief).
He believes that “the jail’s illusory grievance process
was directly responsible for the constitutional depriva-
tions he suffered when he was brutally assaulted
multiple times . . . .” Grieveson has to take this stance in
order to maintain a § 1983 claim against the Sheriff in his
official capacity, because there must be a “direct causal
link between a policy or custom of the Sheriff’s Depart-
ment and the alleged constitutional violations.” Estate of
Sims, 506 F.3d at 515 (citing City of Canton, 489 U.S. at 385).
Grieveson’s position also seems necessary in light of our
No. 05-4681 13
case law specifically denouncing a Fourteenth Amendment
substantive due-process right to an inmate grievance
procedure. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996) (“With respect to the Due Process Clause, any right
to a grievance procedure is a procedural right, not a
substantive one. Accordingly, a state’s inmate grievance
procedures do not give rise to a liberty interest protected
by the Due Process Clause.” (internal citations omitted)).3
To describe Grieveson’s contention more succinctly, he
argues: (1) he suffered beatings at the hands of other
prisoners; (2) the jail had an ineffective grievance proce-
dure; (3) the grievance procedure caused the beatings.
The weakness of Grieveson’s argument has less to do
with evidence than with logic. He argues that because of
the ineffective grievance procedure, prisoners beat him. But
it is impossible to see how Grieveson’s A causes his B. If
Grieveson showed a prison policy or custom that effec-
tively allowed prisoners to beat one another, he might have
had a successful claim against the County. Or, if
he demonstrated that there was absolutely no opportu-
nity for prisoners to express their safety concerns to
jail officials, perhaps he could prevail. But, the evid-
3
Grieveson acknowledges that there is no substantive liberty
interest in a bona fide prison grievance process, see Antonelli,
81 F.3d at 1430, but he notes that there is a procedural right.
However, the procedural right is of no use to Grieveson, because
it exists to ensure that prisoners and detainees can access the
courts. See id. Grieveson makes no claim that the grievance
procedure as implemented prevented him from accessing the
courts. See id. (“Mr. Antonelli’s invocation of the judicial pro-
cess indicates that the prison has not infringed his First Amend-
ment right to petition the government for a redress of griev-
ances.”).
14 No. 05-4681
ence here shows that Grieveson had opportunities to
verbally express his fears and concerns to jail officials,
and that he did so on several occasions (e.g., “I did inform
the Defendants [I had a problem] on the trips to the
hospital”). Grieveson is trying to shoehorn a claim for
deliberate indifference of particular jail officials into an
official-capacity claim by pointing to a prison policy that
has no causal connection to the harms Grieveson suf-
fered at the hands of other inmates. Seeing as the jail did
not have to employ any grievance procedure whatsoever
under the Fourteenth Amendment, see id., it is hard to
understand how the implementation of one—even one
that did not function perfectly—would actually cause
prisoner beatings. It is only “ ‘when execution of a gov-
ernment’s policy or custom . . . inflicts the injury that
the government as an entity is responsible under
§ 1983.’ ” Woodward v. Corr. Med. Servs. of Ill., Inc., 368
F.3d 917, 927 (7th Cir. 2004) (quoting Estate of Novack ex
rel. v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000)).
Grieveson has not presented any evidence showing
that the Marion County Jail’s grievance procedure—the
formal policy itself and the allegedly “sham” manner in
which it was carried out—caused his injuries. See Estate
of Sims, 506 F.3d at 515. This § 1983 official-capacity
claim against the Sheriff fails for lack of causation. See
Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.
2005) (“At any rate, we fail to see how the report-filing
policy or practice was likely to lead to [the inmate’s]
death.”); Butera v. Cottey, 285 F.3d 601, 608 (7th Cir. 2002)
(“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, de-
tainees could still dim the lights or hide under blankets.”).
No. 05-4681 15
2. The Jail’s Method of Dispensing Prescription Medica-
tion
The other official practice Grieveson challenges is the
method by which the Marion County Jail dispensed
prescription medications. He argues that the jail main-
tained a customary practice of “failing to control inmate
prescriptions” such that inmates were given entire bottles
of medication at once. Grieveson attests that he had
his medications stolen from him by other inmates at
least four times.
To survive summary judgment on this official-capacity
claim against the Sheriff, Grieveson again has to present
evidence demonstrating that the method of prescription
distribution was undertaken pursuant to an official jail
policy or widespread custom. Perkins v. Lawson, 312
F.3d 872, 875 (7th Cir. 2002). Grieveson must point to
“either an express policy which caused the injury, a
widespread practice that is so well-settled as to amount
to a policy, or [show] that the sheriff had the final
policymaking authority for the decisions regarding the
medical treatment [he] received.” Id. He must also present
evidence demonstrating that the method of prescription
dispensing amounts to an unconstitutional practice. See
Antonelli, 81 F.3d at 1427; see also Calhoun v. Ramsey,
408 F.3d 375, 381 (7th Cir. 2005) (stating the inquiry into
official-capacity liability to be whether the County em-
ploys an “impermissible” method of operation).
Grieveson makes a widespread custom argument—that
jail officials would give out an inmate’s entire prescrip-
tion at one time, in full view of other prisoners, placing
in harm’s way the prisoner with the prescription.
Grieveson specifies in his affidavits four instances in
which jail guards gave him his entire prescription at
16 No. 05-4681
once, and he explains the consequences he suffered as a
result (e.g., “On January 2, 2002, the medication that was
given to me (Ultram) was taken from me with force (100
pills). Yes, a trained medical staff and officers gave me
the whole bottle of pain medication to keep with me in
the cell-block. I was slapped in the mouth then the med-
ication was taken by two other inmates, this time I never
put up any fight.”). A January 9, 2001 jail medical record
shows that Grieveson complained about the method of
prescription dispensing, and asked for his pills one at a
time. Grieveson does not, however, present any evid-
ence relating to inmates other than himself, aside from
the general statement in his June 30, 2004 affidavit:
If and when a prisoner was prescribed a medica-
tion, pain pills, etc., even a narcotic, the jail
staff—not the medical staff— would pass out the
medication (narcotics) in front of all the prisoners
to see who got what. And Defendants would give
the prisoner the whole prescription at times,
sometimes the whole bottle of pills . . . .
The question then is whether Grieveson provided
“enough evidence of custom and practice to permit an
inference that the County has chosen an impermissible
way of operating.” Calhoun, 408 F.3d at 381. A practice
of dispensing full bottles of prescription medicine to
inmates may be an impermissible manner of operating
under the Constitution—though Grieveson did not pre-
sent expert evidence or caselaw addressing the effects
of dispensing entire drug prescriptions at once. From the
little we know, the alleged practice provides inmates
with quantities of medicine that could potentially allow
them to overdose and that could place them at risk for
having their needed medication stolen. But we need not
No. 05-4681 17
decide whether the practice is unconstitutional, because
Grieveson has not put forth adequate evidence
showing that the alleged practice was widespread and
reflective of a policy choice by the Marion County Sheriff,
which is the pivotal requirement of a § 1983 official ca-
pacity claim. See id; Phelan v. Cook County, 463 F.3d
773, 789-90 (7th Cir. 2006).
Grieveson’s allegation about jail officers providing full
prescriptions to other prisoners does not indicate the
frequency of the practice, nor suggest that it is wide-
spread. We do not know the alleged number of inmates
involved, and we do not know how many such disburse-
ments Grieveson witnessed. One broad, vague state-
ment about an occurrence affecting other inmates in a
detention facility does not support the inference of a
“widespread” custom. See Phelan v. Cook County, 463
F.3d 773, 789-90 (7th Cir. 2006) (“The unifying theme in
these decisions is the acknowledgment that the word
‘widespread’ must be taken seriously.”).
Turning to Grieveson’s personal experiences, we note
that it is not impossible for a plaintiff to demonstrate the
existence of an official policy or custom by presenting
evidence limited to his experience. Id. (“Generally speak-
ing, we do not believe that a plaintiff should be fore-
closed from pursuing Section 1983 claims where she can
demonstrate that repeated actions directed at her truly
evince the existence of a policy.”). However, it is neces-
sarily more difficult for a plaintiff to demonstrate an
official policy or custom based only on his own ex-
perience because “ ‘what is needed is evidence that there
is a true municipal policy at issue, not a random event.’ ”
Id. (quoting Calhoun, 408 F.3d at 380).
In his pleadings, discovery and disclosure materials,
and affidavits, Grieveson presented four incidents in
18 No. 05-4681
which he was given his full prescription at one time, and
a medical record shows that he asked, on one occasion, to
receive his pills one at a time. In Estate of Moreland v.
Dieter, an inmate’s observation of three incidents of im-
proper pepper-spraying was not sufficient to support
allegations of a widespread practice. 395 F.3d at 760. Two
incidents of placing black inmates in unsafe “gladiator
cell blocks” was not enough to survive summary judg-
ment on a widespread practice claim in Palmer v. Marion
County, 327 F.3d 588, 595 (7th Cir. 2003). Likewise,
Grieveson’s evidence of four incidents that he alone
experienced “fails to meet the test of a widespread un-
constitutional practice by the Jail’s staff that is so well
settled that it constitutes a custom or usage with the
force of law.” Id. at 595-96. This simply is not enough to
foster a genuine issue of material fact that the practice
was widespread—from that evidence alone an inference
does not arise that the county itself approved, acquiesced,
or encouraged the disbursement of entire prescriptions
at once. See Jones v. City of Chicago, 787 F.2d 200, 204 (7th
Cir. 1986) (“[T]here must be some knowledge or an
awareness—actual or imputed—of the custom and its
consequences showing the municipality’s approval,
acquiescence, or encouragement of the alleged uncon-
stitutional violation.”).
C. Section 1983 Individual-Capacity Claims
Grieveson’s claims against the individual jail officers
stem from two types of injuries. First, he claims that the
jail officers knew his safety was in danger, but failed to
protect him from assaults. Second, he claims that the
officers knew he had serious medical needs but they
disregarded those needs or postponed attention to those
No. 05-4681 19
needs. In order to survive summary judgment on these
claims against the jail officers in their individual capac-
ities, Grieveson must demonstrate a genuine issue of
material fact with respect to the officer’s “deliberate
indifference” to Grieveson’s safety and medical needs.
Palmer, 327 F.3d at 593.
Demonstrating deliberate indifference towards a pris-
oner’s safety needs requires a showing that the inmate
was “incarcerated under conditions posing a ‘sub-
stantial risk of serious harm,’ ” id. (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)), and a showing that
individual prison officials had subjective knowledge of
the risk of harm, which they personally disregarded, id. As
for the medical claims, the inmate must show that he
had an “objectively serious medical need,” and that the
individual officers were “aware of the prisoner’s serious
medical needs and disregarded an excessive risk that a
lack of treatment posed to the prisoner’s healthy or
safety . . . .” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.
2001).
1. Deliberate Indifference to Grieveson’s Safety Needs
For six of the assaults Grieveson suffered, we can assume
without deciding that he satisfied the first prong of the
deliberate indifference inquiry—that he was incarcerated
in conditions posing a substantial risk of serious harm. The
second prong presents a greater challenge to Grieveson
because the inquiry is not whether individual officers
should have known about risks to Grieveson’s safety, but
rather whether they did know of such risks. Farmer, 511
U.S. at 842-43. Even though “ ‘the defendants’ knowledge
of the risk can be inferred,’ ” James v. Milwaukee County,
956 F.2d 696, 700 (7th Cir. 1992) (quoting Whitley v. Albers,
20 No. 05-4681
475 U.S. 312, 321 (1986)), for six of the seven assaults
Grieveson presents no evidence showing that such an
inference is appropriate.
Although his attacker on November 30 called him a
snitch, Grieveson presented no evidence that any of the
named defendants were aware that Grieveson was per-
ceived as a snitch by his fellow inmates. The mere fact
that Grieveson thought he was considered a snitch does
not allow a factfinder to conclude “ ‘that a prison official
knew of a substantial risk from the very fact that the risk
was obvious.’ ” Mayoral v. Sheahan, 245 F.3d 934, 938 (7th
Cir. 2001) (quoting Farmer, 511 U.S. at 842). The only
person who believes that Grieveson was considered a
snitch (according to the evidence) is Grieveson himself.
Any risk to Grieveson’s safety on account of the “snitch”
label was not obvious. See Johnson v. Doughty, 433
F.3d 1001, 1010 (7th Cir. 2006) (stating that an inmate’s
need for surgery was not obvious); Payne for Hicks v.
Churchich, 161 F.3d 1030, 1042 (7th Cir. 1998) (“[W]e do not
believe that the allegations in the complaint about Mr.
Hicks’ conduct and tattoo message, without more, in-
dicate an obvious, substantial risk of suicide.”).
Grieveson also points to the repeated assaults that he
suffered at the hands of other inmates as evidence that the
jail officers were subjectively aware of the obvious
safety threats Grieveson faced. But looking at the facts
uncovered in discovery, even we cannot discern the
threat(s) Grieveson faced during his detention. Grieveson
never informed the jail officers of a specific threat to his
life (i.e., that he was at risk because of his “snitch” reputa-
tion). See Butera, 285 F.3d at 606. Instead, he told jail
officials only that he was afraid and that he wanted to be
moved. After his first assault, Grieveson told the jail
officers that “the problem was taken out of the block
No. 05-4681 21
already” and that he wanted to “let the situation pass.”
After the second assault, Grieveson informed jail officers
that he had been assaulted by another inmate and that he
wanted to be moved to another cell block. However, he
did not tell the officers who assaulted him, why he had
been assaulted (allegedly because of his “snitch” label),
or whether he continued to feel threatened by the as-
saulting individuals. The type of information Grieveson
shared with the jail officers is comparable to that shared
in Butera v. Cottey, where the plaintiff told the jail guards
that he was “having problems in the block” and “need[ed]
to be removed.” 285 F.3d at 606-07. Such vague informa-
tion did not put the jail officers on notice of a specific
threat to Grieveson’s safety. See id.
Grieveson was assaulted the third time by an inmate
who “beat [him] senseless for taking too long to use the
toilet.” It is hard to imagine how the jail officers would
have been on notice of this specific threat to Grieveson’s
safety. As sad as it may be, the toilet attack, in particular,
demonstrates that Grieveson was a “victim of the inher-
ent, as it were the baseline, dangerousness of prison life.”
Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002).
The fourth assault occurred at the hands of a jail officer,
according to Grieveson. This officer has not been identified,
and there is no suggestion that the alleged assaulting
officer is one of the named defendants in this case. “ ‘A
plaintiff bringing a civil rights action must prove that the
defendant personally participated in or caused the uncon-
stitutional actions.’ ” Alejo v. Heller, 328 F.3d 930, 936 (7th
Cir. 2003) (quoting Duncan v. Duckworth, 644 F.2d 653,
655 (7th Cir. 1981)). Grieveson does not argue that the
named defendants in this case knew that another jail
officer was going to slam Grieveson’s arm in a door.
“[D]eliberate indifference requires that the corrections
22 No. 05-4681
officer must have ‘actual knowledge’ of the risk.” Guzman,
495 F.3d at 857-58 (quoting Washington v. LaPorte County
Sheriff’s Dep’t, 306 F.3d 515, 517-18 (7th Cir. 2002)).
Grieveson’s fifth assault was similar to his third in that
an inmate came after him out of personal frustration.
Grieveson attests that he was “pommelled [sic] in the face
for allegedly snoring due to [his] broken nose.” Skipping
to the seventh assault, it also happened at the hands of
an angry inmate: “I was attacked by inmate Robert
White, who was angry over losing a card game.”
Grieveson’s account of these incidents does not suggest
that the assailants lashed out at Grieveson because of
his alleged reputation as a snitch. Instead, they demon-
strate the tragic realities of jail and prison life that detainees
are often subject to, absent fault on the part of individual
jail guards. “[P]risons are dangerous places. Inmates get
there by violent acts, and many prisoners have a propensity
to commit more. Guards cannot turn away persons com-
mitted by the courts; nor do individual guards have any
control over crowding and other systemic circumstances.”
Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004); see also
United States v. Tokash, 282 F.3d 962, 970 (7th Cir. 2002)
(“[P]risons are inherently dangerous places and are
inhabited by violent people . . . .”).
There is no doubt that jail officials have a duty to protect
detainees “ ‘from violence at the hand of other inmates.’ ”
Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006) (quoting
Washington, 306 F.3d at 517). But liability of a jail officer
for failure to protect an inmate only materializes if the
officer knew the inmate faced a “ ‘substantial risk of seri-
ous harm’ ” and “ ‘disregard[ed] that risk by failing to
take reasonable measures to abate it.’ ” Id. (quoting Farmer,
511 U.S. at 847). There is no genuine issue of material
fact concerning the assaults Grieveson suffered at the
No. 05-4681 23
hands of angry, unstable, violent inmates because there
is no evidence demonstrating that any of the named
officers knew about these threats to Grieveson’s safety.
See Guzman, 495 F.3d at 857-58.
Grieveson’s own affidavits and evidentiary materials
confirm that Grieveson’s main charge against the jail
officers is that they should have known what was
going on—not that they did know. He asks in an af-
fidavit, “How many trips would it take to the hospital
emergency room for a trained Correctional Officer to
realize that I was having problems in Cell Block 2-A? I had
already taken 4 (four) trips to the emergency room.”
Elsewhere he attests: “[a]t no time did the Defendants
approach me and ask me as to my personal safety and
well being.”; “Any layperson, let alone someone ‘trained’
for observation, could readily see my injuries were con-
sistent with being assaulted. Yet the Defendants did not
take adequate measures to . . . assure I was not attacked
again.”; “Never was I approached by a correctional
officer for determination of whether or not I needed
assistance.”; “It is hard to understand how a prisoner
standing there with free-flowing blood should not be
enough to spark some interest; but it didn’t in my case.”
Grieveson does not say that he told jail officers he was in
danger; rather, he claims that the officers should have
realized he was in danger.
In the grievances Grieveson filed (two of which the jail
does not report having received, but for purposes of
summary judgment we will consider as having been
received), he fails to identify a tangible threat to his safety
or wellbeing. Grieveson wrote that he was “real scared
of my life here and the guards are even afraid to come
into the block[—]how do you think we feel.” He asked
24 No. 05-4681
to be moved to another jail or a “safer” block, but did not
put the jail officials on notice of specific threats to his
safety. Perhaps the jail officers should have done a
better job with Grieveson—maybe they could have
initiated more conversations with him, asked him to
identify his assailants, invited him to come to them
more often with his concerns—but proving deliberate
indifference “requires more than a showing of negligent
or even grossly negligent behavior. . . . [T]he correc-
tions officer must have acted with the equivalent of
criminal recklessness.” Borello, 446 F.3d at 747.
Also problematic for Grieveson is his failure to tie actions
of the named defendants to the injuries he allegedly
suffered. See Alejo, 328 F.3d at 936; Starzenski v. City of
Elkhart, 87 F.3d 872, 879 (7th Cir. 1996). Throughout his
affidavits and briefs, Grieveson refers to “the defendants,”
claiming that “the defendants” failed to protect him. Vague
references to a group of “defendants,” without specific
allegations tying the individual defendants to the
alleged unconstitutional conduct, do not raise a gen-
uine issue of material fact with respect to those defendants.
See Alejo, 328 F.3d at 936 (finding dismissal of named
defendant proper where plaintiff failed to allege defen-
dant’s personal involvement in the alleged wrongdoings).
Thus, for six of the seven assaults, Grieveson has not
demonstrated a genuine issue of material fact about the
jail officers’ deliberate indifference. On the other hand,
the sixth attack Grieveson suffered does survive sum-
mary judgment insofar as it relates to Officer High-
baugh. Grieveson attests that in March 2001, he was
assaulted by other inmates when they stole his personal
commissary items and his food. Grieveson claims that
Officer Highbaugh witnessed the incident and failed to
intervene; later Highbaugh allegedly commented to
No. 05-4681 25
Grieveson that he needed to “learn how to fight harder
or don’t come to jail.” If Officer Highbaugh did witness
an inmate assault, but failed to intervene, his actions
would seemingly “constitute a paradigm case of delib-
erate indifference.” Haley v. Gross, 86 F.3d 630, 642 (7th
Cir. 1996). The evidence presented by Grieveson re-
specting the sixth assault establishes a genuine issue of
material fact on both prongs of the deliberate indiffer-
ence inquiry. “First, the danger to the inmate must be
objectively serious, posing a substantial risk of serious
harm.” Id. at 640. Grieveson allegedly was assaulted by
other inmates—an objectively serious danger that posed
a substantial risk of serious harm to him—in the presence
of Officer Highbaugh. “Second, the prison official must
have a sufficiently culpable state of mind—one of ‘de-
liberate indifference’ to inmate health or safety.” Id.
(quoting Farmer, 511 U.S. at 834). Officer Highbaugh
allegedly watched the assault but did not intervene to
protect Grieveson—exhibiting quintessential deliberate
indifference.
Finally, with respect to Marion County Officers
Boomershine and Commiskey, the district court was correct
to grant summary judgment in their favor. Grieveson did
not demonstrate that they were personally involved in the
injuries he suffered. As discussed above, “ ‘[a]n individual
cannot be held liable in a § 1983 action unless he caused or
participated in [the] alleged constitutional deprivation.’ ”
Starzenski, 87 F.3d at 879 (quoting Wolfe-Lillie v. Sonquist,
699 F.2d 864, 869 (7th Cir. 1983)).
2. Deliberate Indifference to Grieveson’s Medical Needs
Grieveson alleges that he first told Officers Highbaugh,
Cornell, and Duncan about his broken nose during the
26 No. 05-4681
afternoon of December 1, 2000. He was told that they
would “let Medical know” and one officer had Grieveson
fill out a “medical call card.” On December 2, Grieveson
claims that he again told Officer Duncan that he was in
pain and that he needed to be seen by a doctor. Officer
Duncan had him fill out a second medical call card.
Grieveson was taken to the hospital on the morning of
December 3. The total lapse of time between Grieveson’s
assault and when Grieveson ultimately received treat-
ment is debated by the parties; Grieveson claims that
the assault took place on November 30, and that it was
almost two days after he first complained to a guard that
he received treatment. Grieveson filed a grievance about
the delayed medical treatment, and the jail’s response
supports the notion that the treatment was, in fact, de-
layed: “[I]t is unforunant [sic] that it took that long to send
you to [W]ishard . . . .”
In order to survive summary judgment on a claim for
deliberate indifference to serious medical needs, Grieveson
must show that he had an objectively serious medical
need, and that named guards were deliberately indiffer-
ent to it. Norfleet v. Webster, 439 F.3d 392, 395 (7th Cir.
2006); Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)
(“[A] prison official may evidence deliberate indifference
by failing to treat or delaying the treatment of a serious
medical need. However, for liability to exist the medical
need must be objectively serious.”). A delay in the provi-
sion of medical treatment for painful conditions—
even non-life-threatening conditions—can support a
deliberate-indifference claim, see Gutierrez v. Peters, 111
F.3d 1364, 1372 (7th Cir. 1997), so long as the medical
condition is “ ‘sufficiently serious or painful,’ ” id. (quoting
Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996)).
No. 05-4681 27
The defendants argue that Grieveson cannot survive
summary judgment because he did not put forth evidence
demonstrating an objectively serious medical condi-
tion—he did not “ ‘place verifying medical evidence in the
record to establish the detrimental effect of delay in
medical treatment.’ ” Langston, 100 F.3d at 1240 (quoting
Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995)); see
also Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007)
(“[A] plaintiff must offer medical evidence that tends to
confirm or corroborate a claim that the delay was detri-
mental.”). We recently considered what qualifies as
“verifying medical evidence” in Williams v. Liefer:
Clearly, expert testimony that the plaintiff suffered
because of a delay in treatment would satisfy the
requirement. On the other hand, evidence of a
plaintiff’s diagnosis and treatment, standing alone,
is insufficient if it does not assist the jury in determin-
ing whether a delay exacerbated the plaintiff’s condition
or otherwise harmed him.
Id. at 715 (emphasis added). As in Williams, “the evidence
in this case falls somewhere in between a bare recitation
of treatment received and expert testimony about the
delay’s effect.” Id. Grieveson did not introduce expert
testimony stating that his medical condition worsened
because of the delay—but that does not mean Grieveson
offered no verifying medical evidence. See id. Grieveson
supplied medical records indicating that he had a nasal
fracture, that he could experience further bleeding, and
that he may need to see a specialist. Grieveson later
underwent painful nose surgery. The evidence Grieveson
provided would certainly help a jury determine whether
the delay “unnecessarily prolonged and exacerbated”
Grieveson’s pain, id., and thus qualifies as verifying
28 No. 05-4681
medical evidence that supports a genuine issue of material
fact regarding the seriousness of Grieveson’s medical
condition.
Based on the evidence provided by Grieveson, a
jury could further infer that the delays of Officers
Highbaugh, Cornell, and Duncan in arranging medical
treatment caused Grieveson “that many more hours of
needless suffering for no reason.” Id. According to
Grieveson, these three guards knew that he was in pain,
but they did not secure medical treatment for him until,
at the earliest, one-and-a-half days after they knew
about the injury. Grieveson’s affidavits create a genuine
issue of fact as to the officers’ states of mind. “Although
a negligent or inadvertent failure to provide adequate
medical care is insufficient to state a deliberate indiffer-
ence claim, it is enough to show that a defendant actually
knew of a substantial risk of harm to the inmate and acted
or failed to act in disregard to that risk.” Gil v. Reed, 381
F.3d 649, 661 (7th Cir. 2004); see also Williams, 491 F.3d at
716 (“[A] jury could find that the defendants’ delay caused
[the inmate] six extra hours of pain and dangerously
elevated blood pressure for no good reason.”).
Grieveson’s claim for deliberate indifference to his
medical needs survives summary judgment as against
Officers Highbaugh, Cornell, and Duncan to the extent
that the claim relates to delays in treatment after
Grieveson’s first assault. Grieveson does not proffer
sufficient evidence to survive summary judgment for
any other delays in medical treatment because he does
not show that the named defendants were personally
involved in the other delays. See Alejo, 328 F.3d at 936.
No. 05-4681 29
D. State-Law Negligence Claim
The district court briefly addressed Grieveson’s negli-
gence claim. It outlined the cause of action: a plaintiff
must demonstrate that (1) the defendant had a duty, arising
from his relationship with the plaintiff, to exercise the
relevant standard of care; (2) the defendant failed to
conform his conduct to that standard of care; and (3) the
defendant’s failure to meet that standard of care proxi-
mately caused the plaintiff’s injury. Webb v. Jarvis, 575
N.E.2d 992, 995 (Ind. 1991). The court found that the
defendants had a duty of care with respect to the jail’s
inmates, including Grieveson. The court then decided
that “there was no negligence on the part of the defendants
toward the plaintiff’s welfare because Grieveson was not
injured as a proximate result of any defendant’s breach
of a duty owed to Grieveson.”
Grieveson’s burden on a negligence claim is far less than
his burden on a § 1983 deliberate-indifference claim. See
Perkins, 312 F.3d at 876. Whereas Grieveson had to
show that the named jail officers knew about a substan-
tial risk to Grieveson’s health and safety to sustain a
§ 1983 claim, see Guzman, 495 F.3d at 857-58, negligence
law exists to deal with the very types of allegations
Grieveson made here—that certain individuals should
have acted differently in light of the duties applicable to
them, and that their failure to abide by the relevant stan-
dard of care caused Grieveson personal injury. Many of
Grieveson’s allegations suggest that jail officers should
have done things differently: they should have main-
tained a more sanitary facility; they should have realized
Grieveson’s safety was at risk and actively tried to deter-
mine and eliminate the source of that risk; they should
have taken him to the hospital promptly after learning
30 No. 05-4681
that he was assaulted and thought he had a broken nose;
they should have ensured that he received the surgery
he needed on his eye within the required time period—
and they should have informed his next detention center
that immediate surgery was imperative and provided
his new placement with his medical records.
Grieveson established through his pleadings, discovery
and disclosure materials, and affidavits that there is a
genuine issue of material fact surrounding his state-law
negligence claim. See Fed. R. Civ. P. 56(C).
III. CONCLUSION
For the foregoing reasons, we AFFIRM in part and RE-
VERSE in part the judgment of the district court, and
REMAND for further proceedings.
8-18-08