Brown, David v. Budz, Timothy

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1997
DAVID BROWN,
Plaintiff-Appellant,
v.
TIMOTHY BUDZ, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CV 5516—James B. Zagel, Judge.
____________
ARGUED SEPTEMBER 22, 2004—DECIDED FEBRUARY 16, 2005
____________
Before COFFEY, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. David Brown, a resident of
the Illinois Department of Human Services’ Sexually
Violent Persons and Detention Facility (Facility) was
severely beaten several times by a fellow resident. Brown
alleged that Facility employees failed to protect him in
violation of his due process rights by allowing that
fellow resident with allegedly violent propensities to
roam Facility common areas unsupervised. He also
alleged that several Facility employees violated his right to
equal protection by intentionally treating him and
other Caucasian residents differently from similarly
situated African-American residents. The district court
dismissed Brown’s complaint for failure to state a claim, but
2 No. 03-1997
because we find that the allegations in Brown’s complaint
are sufficient to state several claims on both counts, we
affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
As this appeal calls for an evaluation of whether plain-
tiff’s complaint fails to state a claim, we “take the plain-
tiff’s factual allegations as true and draw all reasonable
inferences in his favor.” DeWalt v. Carter, 224 F.3d 607, 612
(7th Cir. 2000) (citing Strasburger v. Bd. of Educ., 143 F.3d
351, 359 (7th Cir. 1998)). Brown, a Caucasian, is currently
and has been a resident at the Facility in Joliet, Illinois. He
has been awaiting a civil commitment trial under the
Illinois Sexually Violent Persons Commitment Act, 725
ILCS 207/1, et seq. since December 1999.
On the evening of May 4, 2001, Brown was playing
cards in the unsupervised dayroom, an area of the Facil-
ity where residents are allowed to watch television and
enjoy other leisure activities. Another resident, referred to
here as “G.B.,” an African-American resident who had
attacked other Caucasian Facility residents on other
occasions, was also present in the dayroom. G.B. attacked
and severely beat Brown several times in succession,
causing Brown to suffer physical injuries.
The defendants are employees of the Facility who had
been primarily responsible for Brown’s care and custody
at the time of the attack. Defendants-appellees Tyler,
Smith, Clark, and Pomier were Security Therapy Aides
(STAs) at the Facility; defendant-appellee Timothy Budz
was the Director of the Facility; defendant-appellee
Robert Glotz was the Facility’s Security Director; and
defendant-appellee Cy Hopkins was a Facility Internal
Affairs Investigator (together, State Defendants). Defen-
dant-appellee Dr. Raymond Wood was the Facility Clinical
No. 03-1997 3
Director. All of these defendants personally knew of G.B.’s
propensity for violence and history of attacking Caucasian
residents before the assault on Brown, and were aware of a
pattern of attacks by African-American residents in general
against Caucasian residents at the Facility. Despite this
knowledge, the defendants allegedly failed to take adequate
measures to prevent such attacks from taking place.
In Count I of his Second Amended Complaint, Brown
asserts a claim under 42 U.S.C. § 1983 alleging that
Facility officials failed to protect him in violation of his
due process rights. Count II asserts a § 1983 claim alleg-
ing that STAs Tyler, Smith, Clark, and Pomier, as well
as Investigator Hopkins (together, Equal Protection Defen-
dants), violated his right to equal protection by intention-
ally treating him differently from similarly situated
African-American residents in their conduct of protecting
residents from attack, punishing residents for attacks,
investigating attacks, and enforcing Facility policies.
Defendants filed a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, which the district court granted. Brown appeals.
II. ANALYSIS
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that he or she was (1) deprived of a federal right,
privilege, or immunity (2) by any person acting under
color of state law. Gomez v. Toledo, 446 U.S. 635, 638 (1980)
(citing 42 U.S.C. § 1983). There is no dispute that Brown’s
complaint adequately alleges that each defendant acted
under color of state law. What is in dispute is whether
Brown has sufficiently alleged a deprivation of a federal
right—in particular, violations of his rights to due process
and equal protection. Because the district court found
Brown’s allegations insufficient in this regard, dismissing
his complaint pursuant to Rule 12(b)(6), this court reviews
4 No. 03-1997
de novo the district court’s decision. Voelker v. Porsche Cars
N. Am., Inc., 353 F.3d 516, 521 (7th Cir. 2003).
Whether a complaint sufficiently states a claim turns
on whether it meets the general rules of pleading a claim
for relief. Rule 8(a)(2) of the Federal Rules of Civil Proce-
dure requires that a complaint contain “a short and plain
statement of the claim showing the pleader is entitled
to relief.” This “short and plain statement” requires a
plaintiff to allege no more than “the bare minimum facts
necessary to put the defendant on notice of the claim so that
he can file an answer.” Higgs v. Carver, 286 F.3d 437, 439
(7th Cir. 2002) (citing Beanstalk Group, Inc. v. AM Gen.
Corp., 283 F.3d 856, 863 (7th Cir. 2002)). “In evaluating
whether a plaintiff’s complaint fails to state a claim, a court
must take the plaintiff’s factual allegations as true and
draw all reasonable inferences in his favor.” DeWalt, 224
F.3d at 612 (citing Strasburger, 143 F.3d at 359). Further-
more, “[a] complaint should be dismissed for failure to state
a claim only if no relief could be granted under any set of
facts that could be proved consistent with the allegations.”
Id. (internal quotations omitted). Indeed, “if it is possible to
hypothesize a set of facts, consistent with the complaint,
that would entitle the plaintiff to relief, dismissal under
Rule 12(b)(6) is inappropriate.” Sanville v. McCaughtry, 266
F.3d 724, 732 (7th Cir. 2001) (quoting Veazey v. Communi-
cation & Cable of Chicago, Inc., 194 F.3d 850, 854 (7th Cir.
1999)).
A. Failure to Protect
The first count of Brown’s complaint alleges that defen-
dants failed to protect him from harm. Such claims are
often rooted in the Eighth Amendment’s Cruel and Unusual
Punishment Clause, which imposes upon prison officials the
duty to “take reasonable measures to guarantee the safety
of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832
No. 03-1997 5
(1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27
(1984)). In particular, this duty requires prison officials “to
protect prisoners from violence at the hands of other
prisoners.” Id. at 833 (internal quotations omitted). To state
a failure to protect claim, a plaintiff-inmate must allege
that (1) “he is incarcerated under conditions posing a
substantial risk of serious harm,” and (2) defendant-officials
acted with “deliberate indifference” to that risk. Id. at 834.
Defendant Dr. Wood contends that any decisions he made
with respect to Brown in his capacity as a mental health
professional must be analyzed under the “professional
judgment” standard, which provides for imposition of
liability “only when the decision by the professional is such
a substantial departure from accepted professional judg-
ment, practice, or standards as to demonstrate that the
person responsible actually did not base the decision on
such a judgment.” Youngberg v. Romeo, 457 U.S. 307, 323
(1982). However, no “accepted professional judgment,
practice, or standards” would allow a professional to act
in deliberate indifference to a substantial risk of serious
harm to a detainee in his or her care. While the ultimate
success of Brown’s claims against Dr. Wood may in fact turn
on whether the doctor’s acts and omissions were in keeping
with “professional judgment,” Brown at this stage of the
litigation need only allege that Dr. Wood was deliberately
indifferent to a substantial risk of serious harm in order to
state a failure to protect claim.
Director Budz, Security Director Glotz, and Internal
Affairs Investigator Hopkins also argue that a different
standard should be employed to assess Brown’s claims
against them. In Weiss v. Cooley, 230 F.3d 1027, 1033 (7th
Cir. 2000), this court upheld the dismissal of a failure
to protect claim against so-called “policymaking” or “high-
level” defendants where the complaint alleged merely a
failure to implement adequate policies and procedures,
rather than a failure to implement any policies or proce-
6 No. 03-1997
dures whatsoever. Unlike the case at bar, however, the
policymaking defendants in Weiss were alleged to have
had knowledge of only general risks of violence at their
prison, as opposed to particular knowledge of a specific risk
posed by, or to, a particular detainee. Id. Here, Budz, Glotz,
and Hopkins are alleged to have been personally aware of
the specific threat G.B. posed to Caucasian residents
(particularly by virtue of their averred knowledge of G.B.’s
alleged serial attacks on Caucasians), and to have failed to
take adequate measures to neutralize that particular risk.
A failure to protect claim may sound against even a “high-
level” official so long as the averred risk is specific to a
detainee, and not a mere general risk of violence. Further-
more, this discussion presumes that the duties of Budz,
Glotz, and Hopkins are limited to high-level
policymaking—an inappropriate presumption considering
that the allegations of Brown’s complaint— unlike those in
Weiss—do not so constrain this court’s understanding of
each defendant’s employment responsibilities. Accordingly,
the sufficiency of Brown’s failure to protect claims against
defendants Budz, Glotz, and Hopkins, too, will be assessed
solely under Farmer’s two-prong analysis.
With this framework in mind, we turn to our analysis.
In the instant case, Brown was not a prisoner at the time of
the alleged assault, but rather in state custody against his
will, awaiting a civil commitment trial under the Sexually
Violent Persons Act. Not yet convicted of a crime, Brown’s
status was comparable to that of a pretrial detainee. It is
important to note this distinction, as prisoners and pretrial
detainees derive their constitutional rights from different
sources:
The Eighth Amendment’s prohibition on cruel and
unusual punishment gives rise to the constitutional
rights of a convicted state prisoner. A pretrial detainee’s
constitutional rights are distinct from a prisoner’s
No. 03-1997 7
rights because the State cannot punish a pretrial
detainee. Thus, the source of the pretrial detainee’s
rights is the Fourteenth Amendment’s Due Process
Clause . . . .
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 n.1
(7th Cir. 1996) (citations omitted). Although Brown’s
Section 1983 failure to protect claim arises under the
Fourteenth Amendment’s Due Process Clause, not the
Eighth Amendment, Butera v. Cottey, 285 F.3d 601, 605
(7th Cir. 2002) (citing Frake v. City of Chicago, 210 F.3d
779, 781 (7th Cir. 2000)), there is “little practical difference
between the two standards,” Weiss, 230 F.3d at 1032. As we
stated in Higgins v. Correctional Medical Services of
Illinois, “the due process rights of a pre-trial detainee are at
least as great as the Eighth Amendment protection avail-
able to a convicted prisoner,” 178 F.3d 508, 511 (7th Cir.
1999) (quoting Cole, 94 F.3d at 259); therefore, Ҥ 1983
claims brought under the Fourteenth Amendment are to be
analyzed under the Eighth Amendment test.” Henderson v.
Sheahan, 196 F.3d 839, 844 n.2 (7th Cir. 1999). Accordingly,
we analyze Brown’s failure to protect claim under Farmer’s
two-prong test.
1. Substantial Risk of Serious Harm
The first prong of a failure to protect claim—considered
the objective prong—requires a plaintiff to allege that “he is
incarcerated under conditions posing a substantial risk of
serious harm.” Farmer, 511 U.S. at 834. To satisfy this
prong, a plaintiff must allege not only that he or she
experienced, or was exposed to, a serious harm, but also
that there was a substantial risk beforehand that that
serious harm might actually occur.
As to the allegation of serious harm, the Supreme Court
has made clear that “the deprivation alleged must be
objectively, sufficiently serious,” amounting to a “denial of
8 No. 03-1997
the minimal civilized measure of life’s necessities.” Id.(citations and internal quotations omitted). In other words,
“[t]he question under the Eighth Amendment is whether
[custodial] officials . . . exposed a [detainee] to a sufficiently
substantial ‘risk of serious damage to his future health.’ ” Id.
at 843 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993))
(emphasis added). Under this standard, a beating suffered
at the hands of a fellow detainee, such as that alleged by
Brown, clearly constitutes serious harm, as “[b]eing vio-
lently assaulted in prison is simply not ‘part of the penalty
that criminal offenders pay for their offenses against
society.’ ” Id. at 834 (quoting Rhodes v. Chapman, 452 U.S.
337, 347 (1981)). Here, Brown alleges that he was “severely
beaten” by G.B.—a fellow detainee—“several times in
succession causing [him] to suffer physical injuries.”
Complaint ¶ 15. Indeed, the defendants do not contest, and
the district court did not question, the sufficiency of these
allegations of serious harm.
Rather, defendants argue that Brown has failed to allege
that the risk of G.B. attacking him was substantial. Due to
a relative dearth of case law on point, it has for some time
been unclear “[a]t what point a risk of inmate as-
sault becomes sufficiently substantial” for purposes of a
failure to protect claim. Farmer, 511 U.S. at 834 n.3.
Defendants rightly note, however, that this court, at least
on one occasion in the context of resolving a sexual harass-
ment claim brought under Title IX, has read “substantial
risk” to mean “risks so great that they are almost certain to
materialize if nothing is done.” Delgado v. Stegall, 367 F.3d
668, 672 (7th Cir. 2004) (citing, inter alia, Billman v. Ind.
Dept. of Corr., 56 F.3d 785, 788 (7th Cir. 1995)).
While Delgado suggests that the substantial risk stan-
dard is very high, a closer examination of our failure
to protect cases reveals that it is not insurmountable. In
Billman v. Indiana Department of Corrections—a case upon
which the Delgado court expressly relied in formulating
No. 03-1997 9
its definition of “substantial risk”—we suggested that a
“substantial risk” could exist where prison officials place a
detainee in a cell in which “they know that there is a cobra
there or at least that there is a high probability of a cobra
there.” Billman, 56 F.3d at 788. Expanding upon this
hypothetical, we found that, similarly, the assignment of a
detainee without warning to a cell with an HIV positive
inmate with a known “propensity” of raping his cell mates
would also constitute a substantial risk. Id. In other cases,
we have noted that “it is possible to state a claim on the
basis of a guard’s knowledge that a particular inmate poses
a heightened risk of assault to the plaintiff.” Weiss, 230
F.3d at 1032.
When our cases speak of a “substantial risk” that makes a
failure to take steps against it actionable under the Eighth
or Fourteenth Amendment, they also have in mind risks
attributable to detainees with known “propensities” of
violence toward a particular individual or class of individu-
als; to “highly probable” attacks; and to particular detainees
who pose a “heightened risk of assault to the plaintiff.”
Drawn from the particular pronouncements upon which the
Delgado court formulated its general standard, these, too,
are “risks so great that they are almost certain to material-
ize if nothing is done,” and thus are themselves sufficient to
establish a “substantial risk.”
Here Brown has alleged that G.B. had both a known
history and propensity of violently attacking Caucasians
(Complaint ¶¶ 16, 18), and was allowed unsupervised access
to the dayroom where Caucasian residents, including
Brown, would congregate (Complaint ¶¶ 13-15). When
circumstances conspire to find a serial assailant with
unsupervised access to his target prey, a heightened risk of
assault does inescapably arise. Having alleged such expo-
sure to a heightened risk of assault, posed by a specific
individual with allegedly known violent propensities, Brown
10 No. 03-1997
has alleged a sufficiently substantial risk.
Defendants nonetheless maintain that the alleged risk
posed by G.B. could not have been substantial because
Brown had been at the facility for seventeen months
without incident involving G.B., and because the alleged
attacks by G.B. were not “so common and uncontrolled” as
to suggest that he was almost certain to attack any Cauca-
sian resident that he would encounter. Here defendants
misconstrue, as they do throughout their briefs, the proper
purview of the court on a motion to dismiss under Rule
12(b)(6). Defendants invite this court to assume not only
facts that the complaint does not allege, but indeed facts
that are wholly inconsistent with its allegations. We decline
the invitation. At this early stage of the proceedings, we
take plaintiff’s factual allegations as true, draw all reason-
able inferences in his favor, and will hypothesize any set of
facts consistent with those allegations to avoid dismissal.
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); Sanville
v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001).
Therefore it is of no consequence that Brown has lived
at the Facility for seventeen months without incident, for a
court could reasonably hypothesize that the day of the
alleged assault was in fact the first time G.B. and Brown
were in a room together. Or perhaps it was the first time
G.B. and Brown were in an unsupervised room together.
Perhaps G.B. had not lived at the Facility those same
seventeen months prior to the alleged assault. Indeed, it
would be wholly consistent with Brown’s complaint if all
of G.B.’s alleged attacks—both on Brown and others—
took place on G.B.’s very first day of residency.
Which leads to the deficiency in defendants’ challenge
to the alleged frequency of G.B.’s attacks. Defendants argue
that the G.B.’s attacks on Caucasian residents, as alleged
by Brown, were not “so common and uncontrolled” as to
suggest that “he is almost certain to attack any Caucasian
No. 03-1997 11
resident with whom he comes into contact.” State Defs. Br.
at 19. However, nothing in the complaint compels such a
conclusion. The complaint does not approximate the
frequency of G.B.’s alleged attacks on Caucasian residents
whatsoever. In this regard, the complaint tells us only that
“G.B. has attacked and/or beaten other Caucasian resi-
dents” (plural, indicating at least more than one), as well as
Brown himself. Complaint ¶ 16. So we can safely assume for
purposes of this motion that G.B. has attacked at least
three residents in his time at the Facility. But we could
readily hypothesize attacks on more—even many
more—and at least enough to render G.B. a substantial
risk. Indeed, even if we chose not to hypothesize more than
two victims prior to the attack on Brown, we could still find
a frequency of attack that would pose a substantial
risk—particularly if both attacks occurred on the same day,
the same week, or perhaps even the same month.
Nor must Brown allege that the threat posed by G.B. was
“so common and uncontrolled that some potential victims
dared not sleep [but] instead . . . would leave their beds and
spend the night clinging to the bars nearest the guards’
station.” Farmer, 511 U.S. at 843 (quoting Hutto v. Finney,
437 U.S. 678, 681-82 n.3 (1978)). Such conditions inducing
pervasive detainee terror illustrate merely a sufficient, but
not necessary, basis for finding substantial risk. Id. (hy-
pothesizing a threat so severe as to compel inmate hyper-
vigilance merely as an “example” of a sufficiently substan-
tial risk). Furthermore, and contrary to defendants’ asser-
tions, the gravity of the alleged risk was not compromised
by the fact that Brown had not suffered or feared an attack
by G.B. prior to the assault alleged here. Indeed, this court
has found substantial risk even when the potential and
ultimate victims had been wholly oblivious to the impend-
ing threat, particularly in cases of improper cell assign-
ments. See, e.g., Weiss v. Cooley, 230 F.3d 1027 (7th Cir.
2000); Billman v. Ind. Dept. of Corr., 56 F.3d 785 (7th Cir.
12 No. 03-1997
1995); Zarnes v. Rhodes, 64 F.3d 285 (7th Cir. 1995).
Finally, defendants insist that the alleged risk posed
by G.B. could not have been substantial because it was
no more than a generalized risk of violence experienced
by all Caucasian residents in a facility predominantly
populated by Caucasians. “It is certainly true that a
deliberate indifference claim cannot be predicated merely
on knowledge of general risks of violence in [a detention
facility].” Weiss, 230 F.3d at 1032. However, a risk is
not rendered general merely because it is not personal
to plaintiff. Indeed, “it does not matter . . . whether a
prisoner faces an excessive risk of attack for reasons
personal to him or because all prisoners in his situation face
such a risk.” Farmer, 511 U.S. at 843 (emphasis added).
Brown has alleged a risk posed by a specific assailant, with
known propensities of violence toward a specific class of
persons (Caucasian residents), who was left in his presence
unsupervised. These allegations do not detail a mere
general risk of violence in the facility, but rather a particu-
lar—albeit non-personal—threat to Caucasian residents.
Again, we assess here only whether the allegations
of Brown’s complaint are sufficient to state a claim and
withstand challenge under Rule 12(b)(6). Brown has alleged
that an individual with an allegedly known propensity
toward attacking Caucasians was allowed unsupervised
access to a Facility general room in which Brown, a Cauca-
sian, was lounging. In this room, this assailant with alleged
violent propensities was allegedly able to beat Brown
several times in succession. By alleging such exposure to a
heightened risk of assault to Caucasians, Brown has
sufficiently averred substantial risk for purposes of a failure
to protect claim.
2. Deliberate Indifference
To meet the second, subjective prong of a failure to
No. 03-1997 13
protect claim, a plaintiff must establish his custodians’
deliberate indifference to that substantial risk of seri-
ous harm. As the Court stated in Farmer, “a prison
official cannot be found liable under the Eighth Amendment
. . . unless the official knows of and disregards an excessive
risk to inmate health or safety; the official must both be
aware of the facts from which an inference could be drawn
that a substantial risk of serious harm exists, and he must
also draw the inference.” 511 U.S. at 838.
a. Knowledge of Risk
Brown has alleged that “defendants, through their
personal knowledge, positions at the DHS Facility and/or
access to information about its residents including G.B., had
knowledge that G.B. posed a direct threat to other residents
of the DHS Facility given G.B.’s propensity for violence
and/or prior attacks and/or beatings of other residents at
the DHS Facility.” Complaint ¶ 16. He further alleges that
the defendants “possess[ed] actual knowledge that G.B.
posed a direct threat to the health and/or safety of residents
of the DHS Facility, including, but not limited to Plaintiff.”
Complaint ¶ 21. Defendants argue that these allegations
fail to aver defendants’ knowledge of a substantial risk of
serious harm.
The district court agreed, holding that Brown “has made
no showing other than claims limited to mere informa-
tion and belief that defendants knew or had knowledge
of a substantial risk or pattern in which G.B. attacked
Caucasians without provocation,” and that “[a]bsent further
information, plaintiff has failed to show that G.B.’s prior
behavior put defendants on notice that plaintiff was at risk
of attack.” Brown v. Budz, No. 01 C 5516, Order Granting
Defendants’ Motion to Dismiss (N.D. Ill. Feb. 20, 2003)
(emphasis added).
Brown’s allegations, however, cannot be faulted for their
14 No. 03-1997
reliance on “information and belief.” “Where pleadings
concern matters peculiarly within the knowledge of the
defendants, conclusory pleading on ‘information and be-
lief’ should be liberally viewed.” Tankersley v. Albright, 514
F.2d 956, 964 n.16 (7th Cir. 1975) (internal quotations
omitted). Such is the case here, where absent an event
offering definitive insight into the facility officials’
minds—such as Brown informing the officials that he feared
an attack by G.B. prior to the alleged assault, or the
officials forewarning Brown of such a threat—Brown cannot
be faulted for not pleading on the basis of personal knowl-
edge. What the defendants knew of the risk posed by G.B.
and when they knew of it is a matter peculiarly reserved to
their memories and files. Accordingly, Brown properly
averred on the basis “information and belief.”
Furthermore, the district court’s findings misstate
plaintiff’s burden in going forward. As discussed above, to
survive a motion to dismiss under Rule 12(b)(6), the
plaintiff does not have to “show” anything; he need only
allege. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002)
(“The federal rules require (with irrelevant exceptions) only
that the complaint state a claim, not that it plead the facts
that if true would establish (subject to any defenses) that
the claim was valid.”) (citing Nance v. Vieregge, 147 F.3d
589, 590-91 (7th Cir. 1998)). Nonetheless, the district
court’s order, as well as defendants’ arguments both in their
briefs and at oral argument, are replete with references to
what Brown failed to “show” or “establish.” Such use of the
language of summary judgment in disposing of a motion
under Rule 12(b)(6) is incompatible with the liberal notice
pleading requirements of Rule 8. At this stage of the
litigation, we are concerned not with what plaintiff did or
did not show, but rather with what plaintiff did or did not
allege.
In particular, Defendants argue that they cannot be liable
for a failure to protect Brown if they did not know that
No. 03-1997 15
Brown specifically was at risk of attack from G.B. Here they
reprise a variation of their generalized risk argument, this
time arguing that the generalized nature of the risk
compromises not the gravity of the threat, but rather the
mental capacity for indifference. Without knowledge of a
particularized risk, defendants contend, indifference to a
substantial risk of serious harm cannot be deliberate,
because one cannot be deliberately indifferent to a person’s
safety without first knowing the identity of the person
whose safety one is being indifferent to. Accordingly,
defendants argue that dismissal was proper here because
Brown failed to allege a risk that was specific to him,
averring instead a threat experienced by all of the Facility’s
Caucasian residents on an equal basis—put differently, a
generalized threat, insufficient to state the requisite,
subjectively deliberate indifference to Brown’s safety.
Defendants rightly note that typical deliberate indif-
ference claims assert that a defendant-custodian failed
to take protective action after a plaintiff-detainee com-
plained of a feared threat posed by rival gang members or a
specific person. See, e.g., Butera v. Cottey, 285 F.3d 601 (7th
Cir. 2002); Lewis v. Richards, 107 F.3d 549 (7th Cir. 1997);
Haley v. Gross, 86 F.3d 630 (7th Cir. 1996); Jelinek v. Greer,
90 F.3d 242 (7th Cir. 1996). Another common fact pattern
found in our failure to protect cases finds deliberate indif-
ference arising out of improper cell assignments, where the
defendant custodian places an unwitting detainee in a cell
with another detainee whom the custodian knows to have
certain violent propensities. See, e.g., Weiss v. Cooley, 230
F.3d 1027 (7th Cir. 2000); Billman v. Ind. Dept. of Corr., 56
F.3d 785 (7th Cir. 1995); Zarnes v. Rhodes, 64 F.3d 285 (7th
Cir. 1995). In these types of cases, the victim and assailant
are readily identifiable, and the custodian’s deliberate
indifference is based upon knowledge of a clearly particular-
ized risk.
16 No. 03-1997
While we have often found deliberate indifference
where custodians know of threats to a specific detainee
posed by a specific source, we have not been constrained
by this fact pattern. It is well settled that deliberate
indifference may be found though the specific identity of the
ultimate assailant is not known in advance of assault.
Farmer, 511 U.S. at 843 (noting that a custodial official
cannot “escape liability for deliberate indifference by
showing that, while he was aware of an obvious, substantial
risk to inmate safety, he did not know that complainant was
especially likely to be assaulted by the specific prisoner who
eventually committed the assault,” and that “it does not
matter whether the risk comes from a single source or
multiple sources”); Weiss, 230 F.3d at 1032 (“Sometimes the
heightened risk of which the guards were aware comes
about because of their knowledge of the victim’s characteris-
tics, not the assailant’s.”); Langston v. Peters, 100 F.3d
1235, 1238-39 (7th Cir. 1996) (recognizing that deliberate
indifference can be based upon jailer’s knowledge of inmates
likely to be targeted by gangs); Swofford v. Mandrell, 969
F.2d 547, 549-50 (7th Cir. 1992) (noting that the placement
of a plaintiff who had been charged with sexual assault in
a cell with ten other inmates who had been charged with
other crimes supports conclusion that defendant custodian
acted with deliberate indifference); Walsh v. Mellas, 837
F.2d 789, 796 (7th Cir. 1988) (upholding finding of deliber-
ate indifference where “plaintiff was known to be . . .
a targeted inmate and therefore a member of an identifiable
group of prisoners for whom risk of assault was a serious
problem”). Indeed, the converse is also true. As the Sixth
Circuit has held, “where a specific individual poses a risk to
a large class of inmates, that risk can also support a finding
of liability even where the particular prisoner at risk is not
known in advance.” Greene v. Bowles, 361 F.3d 290, 294
(6th Cir. 2004) (citing Curry v. Scott, 249 F.3d 493, 507-08
(6th Cir. 2001) (emphasis added)). Ultimately, as we noted
above, “it does not matter . . . whether a prisoner faces an
No. 03-1997 17
excessive risk of attack for reasons personal to him or
because all prisoners in his situation face such a risk.”
Farmer, 511 U.S. at 843 (emphasis added). As these cases
reveal, deliberate indifference can be predicated upon
knowledge of a victim’s particular vulnerability (though the
identity of the ultimate assailant not known in advance
of attack), or, in the alternative, an assailant’s predatory
nature (though the identity of the ultimate victim not
known in advance of attack).
Thus a deliberate indifference claim may be predicated on
custodial officers’ knowledge that a specific individual poses
a heightened risk of assault to even a large class of
detainees—notwithstanding the officials’ failure or inability
to comprehend in advance the particular identity of this
individual’s ultimate victim. Accordingly, we reject defen-
dants’ suggestions that deliberate indifference requires
either the threatened detainee to advise his custodians of a
pending threat, or a custodial officer to know in advance the
identity of the particular plaintiff at risk. Deliberate
indifference may also be predicated on the custodians’
knowledge of an assailant’s predatory nature. Therefore,
Brown’s complaint, by asserting that the defendants “had
knowledge” of G.B.’s violent propensities as evidenced by
his alleged history of attacking Caucasians, sufficiently
alleges that defendants were aware of an excessive risk
posed to Brown.
b. Disregards Risk
Of course, mere awareness of the facts giving rise to
a substantial risk is not enough to establish deliberate
indifference. To survive dismissal, Brown’s complaint
must also allege that the defendants disregarded that
risk. Toward this end, Brown alleges that defendants failed
to take adequate measures to extinguish the threat posed
by G.B.; failed to adopt or implement adequate policies or
18 No. 03-1997
procedures “to segregate violent persons such as G.B. from
other residents after learning of their violent propensities”;
failed to supervise G.B. adequately; failed to train STAs
adequately, or to notify them of G.B.’s violent propensities;
and failed to adopt or implement policies to provide STAs
information about residents who pose a direct threat to the
safety and security of other residents. Complaint ¶ 21. Such
acts and omissions, given the knowledge of the alleged risk
posed by G.B., sufficiently state a failure to protect claim.
B. Equal Protection
Brown next asserts a violation of his constitutional right
to equal protection. “To establish a prima facie case of
discrimination under the equal protection clause, [plaintiff
is] required to show that he is a member of a protected
class, that he is otherwise similarly situated to members of
the unprotected class, and that he was treated differently
from members of the unprotected class.” McNabola v.
Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)
(internal quotations omitted). In his complaint, Brown
alleges that the defendant STAs and Investigator
Hopkins (together, the Equal Protection Defendants)
“intentionally treated [him and other Caucasian residents]
differently from similarly situated African-American
residents of the DHS Facility without any rational basis for
doing so, by, among other things”: (1) failing to protect them
from attacks by African-American residents; (2) failing to
punish African-American residents for such attacks; (3)
failing to investigate GB’s attack on Brown and other
Caucasians; and (4) failing to enforce policies consistently.
Complaint ¶ 21.
The district court dismissed Brown’s Section 1983 equal
protection claim, finding that “none of plaintiff’s allegations
show defendants intentionally treated plaintiff differently
from similarly situated African-American residents at the
No. 03-1997 19
DHS Facility” and that “plaintiff’s disparate treatment
claim cannot merely rest upon conclusory statements
absent some factual allegations.” Brown v. Budz, No. 01 C
5516, Order Granting Defendants’ Motion to Dismiss (N.D.
Ill. Feb. 20, 2003) (citing Jackson v. E.J. Brach Corp., 176
F.3d 971 (7th Cir. 1999) (“A complaint which consists of
conclusory allegations unsupported by factual assertions
fails even the liberal standard of Rule 12(b)(6).”)). Again, we
note the liberal requirements of notice pleading under Rule
8, particularly with regard to Equal Protection claims,1 and
that, contrary to the district court’s and defendants’ re-
peated choice of vocabulary, plaintiff need not “show”
anything to survive a motion under Rule 12(b)(6)—he need
only allege. See, supra, at 14-15. And Brown has sufficiently
alleged an equal protection violation here.
Indeed, the Equal Protection Defendants concede that
Brown’s claim that the STA defendants intentionally
discriminated against him by failing to protect him
from attack by African-American residents, as well as his
claim that Hopkins intentionally discriminated against him
by failing to investigate G.B.’s attack on him, are both
sufficient to withstand a Rule 12(b)(6) challenge. These
concessions are based on defendants’ acknowledgment
that such alleged failures would, if true, have been in
breach of each employees’ respective duties at the facility.
The district court’s dismissal of these two claims is re-
versed.
The Equal Protection Defendants argue, however, that
the dismissal of the claims against Investigator Hopkins for
failure to supervise, against the STA defendants for failure
to investigate, and against both Hopkins and the STA
1
Indeed, this court has held that an allegation as simple as
“ ‘I was turned down a job because of my race’ is all a complaint
has to say” to plead sufficiently race discrimination in viola-
tion of the Equal Protection clause. Bennett v. Schmidt, 153
F.3d 516, 518 (7th Cir. 1998).
20 No. 03-1997
defendants for failure to punish should be affirmed because
in each circumstance it would be “unreasonable to assume”
that the defendants engaged in such misconduct considering
the nature of their duties. As the argument goes, investiga-
tors don’t supervise, supervisors don’t investigate, and
neither punishes. However, this argument inappropriately
attempts to introduce facts outside of the
complaint—namely, the purported parameters of each
defendant’s duties—in an effort to show they could not have
engaged in the alleged conduct. This effort runs afoul of
Rule 12(b)(6), as Brown should at least be given the oppor-
tunity through discovery to determine the extent of each
defendants duties of employment, and whether each defen-
dant’s alleged failure to act was in contravention of those
respective duties and, ultimately, Brown’s equal protection
rights. Permitting these claims to proceed is consistent with
our ruling in Billman v. Indiana Department of Corrections,
which held that a plaintiff’s “initial inability to identify the
injurers is not by itself a proper ground for the dismissal of
the suit. [If such were the case,] [d]ismissal would gratui-
tously prevent him from using the tools of pretrial discovery
to discover the defendants’ identity.” 56 F.3d at 789. Though
here the defendants have been identified, their roles have
not been. Brown’s allegations suffice to entitle him to
discover the contours of those roles, for, at the Rule 12(b)(6)
stage, it is not unreasonable for the court to draw the
inference that STAs might in some capacity be responsible
for investigating resident-on-resident attacks, or that
investigators are to some degree responsible for supervising
residents. See Sanville v. McCaughtry, 266 F.3d 724, 732
(7th Cir. 2001).
As for Brown’s final equal protection claim—that defen-
dants discriminated against him by failing to enforce
policies—the Equal Protection Defendants argue that the
complaint’s failure to identify the policies involved war-
ranted the claim’s dismissal because it failed to orient
No. 03-1997 21
defendants to the basic nature of the alleged injury. How-
ever, as noted above, Rule 8 does not require fact pleading
by design, leaving these allegations sufficient to state a
claim as well.
C. Official Immunity
To survive dismissal, Brown’s claims must also be
sculpted to conform with the constraints of the Eleventh
Amendment. “[T]he Eleventh Amendment . . . bars federal
jurisdiction over suits against state officials acting in their
official capacities when the state is the real party in inter-
est.” MCI Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d
323, 336-37 (7th Cir. 2000). However, this immunity is not
absolute, as “[u]nder the longstanding doctrine of Ex Parte
Young, a private party can sue a state officer in his or her
official capacity to enjoin prospective action that would
violate federal law.” Dean Foods Co. v. Brancel, 187 F.3d
609, 613 (7th Cir. 1999) (citing Ex Parte Young, 209 U.S.
123, 159-60 (1908)). Ex Parte Young does not reach, how-
ever, claims for retroactive damages to be paid from a state
treasury, which the Eleventh Amendment gen-
erally continues to preclude. Edelman v. Jordan, 415
U.S. 651 (1974).
Here Brown sues all defendants in their individual and
official capacities. Complaint ¶¶ 4-12. As a remedy, he
seeks a declaratory judgment finding that defendants’
conduct was in violation of his due process and equal
protection rights; an injunction requiring the defendants
and the Facility to implement a plan to avoid the reoccur-
rence of such constitutional violations; costs and reasonable
attorneys’ fees pursuant to 42 U.S.C. § 1988; and monetary
damages. To the extent that Brown seeks monetary dam-
ages from defendants acting in their official capacity, those
claims for retroactive relief are dismissed as they are barred
22 No. 03-1997
by the Eleventh Amendment. Defendants in their individual
capacities, however, remain subject to Brown’s claims for
monetary damages.
In addition, defendants take issue with the portion of
Brown’s failure to protect claim based on their alleged
failure to train STAs adequately. Indeed, “failure to train
claims are usually maintained against municipalities, not
against individuals, and, in the Eighth Amendment context,
such claims may only be maintained against a municipal-
ity.” Sanville, 266 F.3d at 739-40. Accordingly, Brown’s
failure to train claims against defendants in
their individual capacities were also properly dismissed.
No. 03-1997 23
III. CONCLUSION
For the reasons stated above, we AFFIRM the district
court’s dismissal of Brown’s due process and equal protec-
tion claims for monetary damages brought against defen-
dants in their official capacities, and its dismissal of his due
process failure to train claim against defendants in their
individual capacities. We REVERSE the dismissal of Brown’s
due process and equal protection claims seeking declaratory
relief, injunctive relief, costs, and reasonable attorneys’ fees
from defendants in both their individual and official
capacities, and the dismissal of Brown’s due process and
equal protection claims for monetary damages brought
against defendants in their individual capacities. This case
is REMANDED for further proceedings consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-16-04