Steven Zirko v. Karen Rabideau ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 1, 2022
Decided November 16, 2022
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-1389
STEVEN ZIRKO, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 16-cv-10996
KAREN RABIDEAU, et al.
Defendants-Appellees. John J. Tharp, Jr.,
Judge.
ORDER
The Eighth Amendment’s prohibition on cruel and unusual punishment brings
with it the affirmative duty for prison officials to protect prisoners from violence at the
hands of other inmates. A correctional officer violates that duty by acting with
deliberate indifference to an objectively serious risk to the prisoner’s health and safety.
These principles find straightforward application in this appeal.
Steven Zirko claims that Officer Joel Shaw violated his Eighth Amendment rights
by failing to protect him from violence at the hands of his cellmate, Patrick Palaggi. But
the evidentiary record developed during discovery does not show that Officer Shaw
had the information necessary to give him actual knowledge of any risk that Palaggi
No. 21-1389 Page 2
might have posed to Zirko. The district court rightly recognized, therefore, that Officer
Shaw could not have acted with deliberate indifference to such a risk. This leaves us to
affirm the district court’s entry of summary judgment for Officer Shaw.
I
Because this appeal rises from a motion for summary judgment, we take our own
fresh look at the record and construe the facts in the light most favorable to Zirko, the
nonmoving party. See LaBrec v. Walker, 948 F.3d 836, 839 (7th Cir. 2020). Here is what
the record shows:
In 2015 Zirko was an inmate at Stateville Correctional Center. He started sharing
a cell with Palaggi that spring, and their relationship deteriorated toward the end of the
year after Zirko—who is, in his own words, “something of a jailhouse attorney”—
refused to help Palaggi review his criminal records. Zirko did so because he did not
want “to have anything to do with” Palaggi after learning that he had sexually
assaulted and murdered a young boy. Palaggi then threatened Zirko, saying that he
would “beat [Zirko] to within an inch of [his] life” if Zirko told anyone about Palaggi’s
offenses. Palaggi threatened Zirko on several other occasions, about ten times in total.
Zirko does not remember when Palaggi first threatened him, only that it
happened sometime in late 2015. Soon after, in November or early December, Zirko told
Officer Shaw that Palaggi had threatened to beat him within an inch of his life. Officer
Shaw dismissed Zirko’s report, directing him to “deal with [his] own problems.”
At least a month later, on January 10, 2016, Palaggi assaulted Zirko early one
morning while Zirko was still asleep. Palaggi hit Zirko multiple times in the face, and
these blows caused Zirko to lose vision in his right eye. Zirko required two surgeries to
restore his vision, though his right eye remains photosensitive to this day.
Zirko sued Officer Shaw, as well as several other correctional employees, under
42 U.S.C. § 1983 for violating his Eighth Amendment rights. The district court granted
the defendants’ motion for summary judgment. Zirko now appeals, challenging the
grant of summary judgment with respect to Shaw alone.
II
The Supreme Court has explained that the Eighth Amendment requires prison
officials to protect prisoners from violence at the hands of other prisoners. See
Farmer v. Brennan, 511 U.S. 825, 833–34 (1994). But the Court has also instructed that not
No. 21-1389 Page 3
“every injury suffered by one prisoner at the hands of another [ ] translates into
constitutional liability for prison officials.” Id. at 834. Rather, prison officials who do not
protect one inmate from violence at the hands of another may be found liable under the
Eighth Amendment only if two requirements are met. First, the prisoner must have
been exposed to a risk of objectively serious harm. Second, the prison official must have
had actual knowledge of that risk and responded with deliberate indifference. See
LaBrec, 948 F.3d at 841; see also Farmer, 511 U.S. at 837–38.
The evidence as viewed in the light most favorable to Zirko suffices to show that
he faced a risk of objectively serious harm. See, e.g., Brown v. Budz, 398 F.3d 904, 910 (7th
Cir. 2005) (holding that “a beating suffered at the hands of a fellow detainee … clearly
constitutes serious harm”). But Zirko’s burden does not end there, for the evidence
must also permit a jury to find that Officer Shaw knew of that risk.
A prison official’s awareness of a “specific, repeated, imminent, and plausible
threat” to a prisoner’s safety can, by itself, establish actual knowledge for purposes of
an Eighth Amendment claim. Gevas v. McLaughlin, 798 F.3d 475, 481 (7th Cir. 2015).
Consider, for example, what happened in Gevas. David Gevas told prison guards that
another inmate had repeatedly threatened to stab him, and he specified that he was
threatened because he had been labeled a snitch. See id. at 481. We held that this was
enough to defeat summary judgment because “a jury reasonably could infer” that the
prison officials, based on the information they had available, knew Gevas “faced a
serious risk of substantial harm.” Id.
Likewise, in LaBrec, Matthew LaBrec told prison officials that he did not feel safe
around his cellmate. See 948 F.3d at 840. He explained that his cellmate had been
“acting very unstable” and “displaying very erratic behavior,” which “identified the
basis for [his] belief” that his cellmate posed an objectively serious threat. Id. at 840, 844.
That allegation, plus a later “specific description of the abnormal behavior” and other
corroborating evidence about his cellmate’s disciplinary record, made LaBrec’s report
plausible enough “to allow a jury to infer that those circumstances evidence[d] a real
threat of harm.” Id. at 844, 846. Summary judgment was therefore inappropriate. See id.
at 846–47.
Even construing the evidence in the light most favorable to Zirko, there is not
enough in the record to show that Officer Shaw had actual knowledge of a specific
threat against Zirko that was repeated, imminent, or plausible. Unlike the situations in
Gevas and LaBrec, where both plaintiffs provided context for their complaints, the record
shows that Officer Shaw only knew one thing in late 2015: Palaggi had threatened to
No. 21-1389 Page 4
beat Zirko within an inch of his life. Zirko’s report was specific in that he named
Palaggi as the person making the threat. But without more information, Officer Shaw
had no way of knowing why Palaggi would have made such a threat. Nothing in the
record suggests that Zirko told Officer Shaw about his brief stint of legal work for
Palaggi, which could have provided essential context for making the reported threat
more plausible and believable.
Nor does the record show that Officer Shaw had any awareness that Palaggi
repeated his threats in the weeks leading up to the altercation on January 10. Had Zirko
reported that more threats followed the first, or had he even repeated his concern on
more than one occasion, that could have bolstered the credibility of his initial claim.
Instead, as time went by—indeed, at least a month—after Zirko spoke to Officer Shaw,
any threat conveyed by his one-off report became less imminent and less plausible.
Everyone agrees that Zirko’s injuries are tragic. But a reasonable jury could not
conclude that, with such limited information available to him, Officer Shaw was
deliberately indifferent to an objective risk to Zirko’s health or safety. On this record,
the law requires that we AFFIRM the district court’s grant of summary judgment for
Officer Shaw.