In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1034

JOEL MAYORAL,

Plaintiff-Appellant,

v.

MICHAEL F. SHEAHAN, in his official capacity
as Sheriff of Cook County, and SHARON JACKSON,
WILLIAM JANAK, and DANIEL THEISEN, in his
individual capacity and in his official capacity
as a correction officer at the Cook County Jail,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 7249--Paul E. Plunkett, Judge.


Argued September 29, 2000--Decided March 27, 2001



  Before EASTERBROOK, RIPPLE, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. While Joel Mayoral was a
pretrial detainee at the Cook County jail, he was
attacked by other inmates. His complaint in this
42 U.S.C. sec. 1983 action says the attack
rendered him paralyzed and disfigured. Mayoral’s
suit alleges that certain correctional officers
were deliberately indifferent to his welfare and
that Cook County Sheriff Michael F. Sheahan and
Captain David Theisen failed to implement a
policy which would consider gang affiliation in
the housing of inmates at the jail. The district
judge granted summary judgment for the defendants
and Mayoral appeals. We take the facts, in this
fact-intensive case, in the light most favorable
to Mayoral at this stage of the case.

  Mayoral, a former member of the Latin Kings
street gang, was arrested for the murder of a
member of the Latin Disciples, a rival gang. At
midnight on November 23, 1994, he was taken to
the Cook County jail, where he told the receiving
officer that he had been a gang member, that his
charged crime involved a rival gang member, that
he feared for his life, and that he needed
protective custody. The officer recorded the
information. But when Mayoral said he was no
longer in a gang, the officer became annoyed and
scratched over the information on the form.

  Mayoral was taken to Division I of the jail, a
maximum security division, where he received his
prison uniform. He then went to court, and when
he returned around 4 p.m. he again told an
officer that he needed protective custody. He was
taken, however, to a general section of Division
I known as Tier B-3 where he was checked in by
Officer Sharon Jackson. Mayoral tried to tell her
he needed protection, but she said she was busy
and rushed him into the tier’s day room.

  She was, in fact, busier than she should have
been. She was "cross-watching" tiers--which means
that because the jail was short-staffed she was
watching two tiers. She had been working as a
correctional officer for a year or so at the time
of the incident, and there was deposition
testimony that she did not have sufficient
experience to be cross-watching two tiers. Also,
her radio--a means of summoning help fast--was
not working and had not been working for several
days.

  As soon as he entered the tier, Mayoral was
approached by an inmate who asked his gang
affiliation. Eventually, Mayoral admitted that he
was a former Latin King. Inmates gathered, saying
that theirs was a "Folks" deck and they could not
have a member of a "People" gang there. When
Mayoral tried to make a telephone call to his
sister, an inmate came up to him and said he
could not use that particular telephone because
it was a Folks’ phone. He tried to use the other
phone; an inmate reached over his shoulder and
disconnected the call. On a third attempt,
Mayoral managed to speak with his sister for a
few minutes before other inmates told him to hang
up because it was a Folks’ phone.

  Mayoral also noticed that the tier reeked of
"hooch," a type of prison alcohol. He observed
inmates drinking an orange substance that he
believed to be hooch. Hooch, apparently, is
widely produced by inmates in the Cook County
jail and is frequently confiscated in shakedowns
at the jail.

  Officer Jackson had also observed inmates
drinking an orange substance and noted that they
were "being very loud." She noted that the
inmates appeared to be intoxicated. She notified
Sgt. William Janak, who arrived on the scene and
locked most of the inmates in their cells. An
inmate named Jamie O’Kelly and a few others
refused to be locked up. Janak told O’Kelly that
if he could not control his guys, the inmates
would have to remain locked up. Janak left the
area and told his supervisor that the inmates
seemed drunk from hooch.

  Janak returned to the tier at about 5:30 and
told inmate O’Kelly that he would release the
inmates if O’Kelly would promise to control "his
guys," which O’Kelly agreed to do. Jackson noted
in her logbook that the inmates were released
from their cells "per Sgt. Janak." Janak, in
turn, says he received permission from his
supervisors to end the lockdown. Jail policies
require a search of the tier before releasing
inmates from a lockdown, but this time no search
was conducted.

  Dinner was served, and soon Mayoral again tried
to call his sister. While he was on the phone,
less than an hour after the lockdown ended, a
fight broke out. Mayoral tried to reach his cell,
but O’Kelly and others backed him into a corner.
O’Kelly stabbed him with a weapon (a shank in
prison lingo) and others hit him on the head with
a mop wringer. Someone also threw a television at
Mayoral, hitting him in the head. The beating
lasted around 15 minutes. Ultimately, Mayoral was
lying unconscious on the floor. It was later
determined that he had been stabbed around 16
times.

  Jackson stated that inmates were fighting at
6:20. She claims to have immediately called Janak
from a telephone, but Janak denies that he spoke
with her at that time. At her deposition, Jackson
seemed to have forgotten all about the events of
November 23 and had to be reminded that an
incident took place on her tier on that date.
Once reminded, she said that loud noise and
profanity are what inspired her to call Sgt.
Janak, who in turn called an "all available." On
the other hand, Janak says he heard about the
riot when he heard an "all available" call at
6:45. He does not know who made the call. Captain
Theisen thought it was Officer Leonardo Brown.
But Brown said that the first he knew of the riot
was when he heard the "all available" call at
6:45 when he was picking up dinner trays on
another tier. When Theisen arrived at Tier B-3,
one inmate, presumably Mayoral, was already
unconscious on the floor. Officers who responded
to the call described what they saw when they
arrived at Tier B as a "gang riot" involving
numerous inmates, some of whom were intoxicated.
Contrary to the time period involved here before
help arrived, it ordinarily takes only around 4
minutes for additional officers to respond to an
"all available" call.

  Captain Theisen estimates that over 80 percent
of inmates in Division I in 1994 were gang
members, with about 60 percent of these
affiliated with the Disciples, the Vice Lords, or
the Latin Kings. The gangs are divided into two
umbrella organizations known as "People" and
"Folks." Gang-related violence is fairly common,
occurring as often as once or twice a week in
Division I. Not surprisingly, "Folks" do not like
"People," such as Mayoral, who kill "Folks."
Despite what seems to be general knowledge of
gangs in the jail, Officer Jackson testified at
her deposition that she did not know anything
about gang affiliations of inmates, that she
would not know a gang sign or gang colors if she
saw them. She claimed not to be aware of any
gang-related violence at the jail, and she said
that no inmate ever asked her for protection
because he was a member of a gang:

Q Are you familiar with what inmates belong to
what gangs?
A No.
Q Do you ever see any inmates flashing gang signs?
A No. I don’t--I don’t--No.
Q Would you know a gang sign if you saw one?
A No.
Q Would you know gang colors if you saw them?
A No.
Q Are you aware of any gang-related violence at
the jail?
A Hearsay.
Q Have you ever observed any gang-related
violence?
A No.

She acknowledged that she had heard the names of
gangs on television:
Q You don’t know the names of any gangs?
A I’ve heard them like on TV.

  Captain Theisen testified that it would be
likely that within the time that Mayoral had been
booked into the jail until the assault, other
inmates would be able to gain knowledge of the
nature of the crime with which he was charged.

  The Cook County Department of Corrections
(CCDOC) has no policies regarding separating
rival gang members, even in cases where the crime
for which an inmate is incarcerated is the murder
of a rival gang member. Lieutenant Isaac Chatman
testified that protective custody is not
automatically offered to an inmate who has killed
a rival gang member: "He’s the one that did
whatever he did." When asked whether he thought
that would put him at risk, Chatman said, "He’s
the one who is charged with the crime."

  Mayoral’s case was resolved in the district
court on summary judgment. Accordingly, our
review is de novo. Summary judgment may be
granted only when there are no genuine issues of
material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56.
We construe the facts and inferences in the light
favorable to the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986). The
issue here is whether, based on the facts in the
record and the inferences which can be drawn from
those facts, Jackson, Janak, and Theisen, as a
matter of law, were not deliberately indifferent
to Mayoral’s health and safety and that the lack
of a policy was likewise not the result of
deliberate indifference to inmate safety.

  Mayoral is a pretrial detainee whose claim
arises under the Fourteenth Amendment’s Due
Process Clause rather than directly under the
Eighth Amendment, but as we said in Weiss v.
Cooley, ___ F.3d ___, 2000 WL 1367988 (7th Cir.
2000), there is "little practical difference
between the two standards." See Tesch v. County
of Green Lake, 157 F.3d at 473-74 (7th Cir.
1998); Henderson v. Sheahan, 196 F.3d 839 (7th
Cir. 1999), cert. denied, 120 S. Ct. 2691 (2000).
The Eighth Amendment protects against the
infliction of "cruel and unusual punishment."
Because officials have taken away virtually all
of a prisoner’s ability to protect himself, the
Constitution imposes on officials the duty to
protect those in their charge from harm from
other prisoners. Langston v. Peters, 100 F.3d
1235 (7th Cir. 1996).

  The standard against which official conduct is
measured is the deliberate indifference standard
set out in Farmer v. Brennan, 511 U.S. 825
(1994). A plaintiff cannot establish a violation
of the Eighth or Fourteenth Amendment by a
showing that the officials were negligent, but
neither must a plaintiff show that the officials
acted with the purpose of causing him harm.
Rather,

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 facts from which the inference could
be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.

Id. at 837. A plaintiff must show both an
objective risk of danger and that the defendants
had actual knowledge of the risk. Henderson, at
844-45. The facts are "subject to demonstration
in the usual ways . . . ." Farmer, at 842. The
determination as to whether there was an Eighth
Amendment violation can rest on inferences
properly drawn from the facts in the record:
Whether a prison official had the requisite
knowledge of a substantial risk is a question of
fact subject to demonstration in the usual ways,
including inference from circumstantial evidence
. . . and a factfinder may conclude that a prison
official knew of a substantial risk from the very
fact that the risk was obvious.

Furthermore, if a plaintiff presents evidence
showing that a substantial risk of inmate attacks
was longstanding and pervasive or noted by prison
officials in the past, and a defendant has been
exposed to information regarding the risk, then
the evidence could be sufficient to permit a
trier of fact to find that the official in fact
had actual knowledge. It is not necessary that
the official desire the harm to befall an inmate.

  Farmer also tells us how specific the knowledge
of the risk must be. The official cannot escape
liability by showing that he did not know that a
plaintiff was especially likely to be assaulted
by the specific prisoner who eventually committed
the assault. It does not matter whether the risk
comes from multiple sources or from one source,
and it does not matter whether the prisoner is at
risk for reasons personal to him or because all
the prisoners face the risk. Referring to Hutto
v. Finney, 437 U.S. 678, 681-82 n.3 (1978), the
Court said that if rape were so common 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," it would obviously be irrelevant to
liability that the officials could not guess
beforehand precisely who would attack whom.
Farmer, at 843-44, quoting Hutto at 681-82. See
also Haley v. Gross, 86 F.3d 630 (7th Cir. 1996);
Pavlick v. Mifflin, 90 F.3d 205 (7th Cir. 1996).

  Mayoral’s claims against Sheriff Sheahan and
Captain Theisen are that in their official
capacities they showed deliberate indifference by
their failure to implement a policy which took
into account gang-related risks to inmate safety
when deciding where to house inmates within the
jail. Mayoral grounds his argument on our
decision in Walsh v. Mellas, 837 F.2d 789 (7th
Cir. 1988).

  In Walsh we held that the failure of officials
at Stateville Correctional Center to screen
inmates being assigned to special housing units
to ascertain gang-related activities could
violate the Eighth Amendment. Walsh was a person
known to be targeted by a gang. He had asked for
protective custody; then he deliberately
committed an infraction of prison rules in order
to be placed in disciplinary cells, apparently
thinking those were safer than protective
custody. That seemed to be a good plan until the
prison placed a member of the gang in the cell
with him. That situation differs from the one
before us, and we decline to extend Walsh to the
present situation.

  The number of gang members housed by the CCDOC
and the high representation of certain gangs
would place an unmanageable burden on prison
administrators were they required to separate
inmates by gangs. Would the jail be required to
have a tier for Gangster Disciples, a tier for
Latin Kings, etc.? We were told at argument that
there is currently pending a lawsuit to prevent
that sort of a housing pattern on the basis that
it would, in effect, become a racial separation
of inmates. Whether that case presently exists or
not, were the CCDOC to separate inmates by gang
affiliation, and thus effectively by race, it
would only be a matter of time before a lawsuit
would be filed. Plus, it would be an unmanageable
practical burden to manage the jail population.
What would happen if there were too many
Disciples for a tier and too few Latin Kings. It
is a situation such as this one which causes us
to recognize again the wisdom set out in Bell v.
Wolfish, 441 U.S. 520, 547 (1979):

[T]he problems that arise in the day-to-day
operation of a corrections facility are not
susceptible of easy solutions. Prison
administrators therefore should be accorded wide-
ranging deference in the adoption and execution
of policies and practices that in their judgment
are needed to preserve internal order and
discipline and to maintain institutional
security.

  The claims against Officer Jackson, Sergeant
Janak, and Captain Theisen in their individual
capacities, however, present a somewhat different
situation. Given that the jail does not separate
gangs, and given that gang-related problems
happen once or twice a week, was it clear as a
matter of law that these officers were not
deliberately indifferent to a known substantial
risk of harm, so that they were entitled to
summary judgment in their favor?

  When we combine the Farmer standard with the
standard for granting summary judgment, we
conclude that when the inferences are drawn
favorably to Mayoral, summary judgment was
improperly granted to Jackson and Janak. As to
Captain Theisen, there is insufficient evidence
to raise an inference that he either had
knowledge of the risk or was deliberately
indifferent to a risk. He was properly dismissed.

  As to Jackson and Janak, Mayoral has raised
issues of fact which preclude a quick end to the
case on summary judgment. That there was a
situation which posed a significant risk of harm
to inmates was clear to the two officers. Mayoral
testified at his deposition that he notified
Jackson that he needed protective custody and she
brushed him off. In the afternoon, Jackson noted
that the inmates were rowdy and seemed to be
intoxicated. She noticed them drinking an orange
substance. She was concerned enough to notify
Sgt. Janak, who locked most of the inmates in
their cells. When they were let out of their
cells, they continued to be loud. One could draw
an inference that Jackson was aware of a
significant risk to inmates in Tier B-3, and to
Mayoral specifically. Add to this her testimony
at her deposition that she was not aware of gang
activity in the jail. Given the pervasive
presence of gangs, a jury could be justified in
finding testimony like hers incredible and
deliberately ignorant. The Farmer standard is not
designed to give officials the motivation to
"take refuge" in the zone between ignorance and
actual knowledge. Jackson, assuming again that
Mayoral’s view of the facts is correct, could be
seen by a responsible trier of fact as trying to
inhabit that zone.

  In addition, Jackson testified at her deposition
that the riot in which Mayoral was injured broke
out at 6:20. She says she notified Janak at that
time. Janak denied that he was on the telephone
with her and claims not to have heard about the
riot until he heard an "all available" call at
6:45. At the very least, these discrepancies
raise questions about whether there was a delay
in summoning help.

  For his part, Sgt. Janak knew some inmates were
drunk. He was sufficiently aware of trouble on
the tier to obtain authority to lock down the
inmates. Or at least most of the inmates. O’Kelly
and others refused to be locked down. That some
inmates were drunk and sufficiently powerful to
refuse to obey Janak’s order raises more than an
inference that there was a risk of significant
harm on this tier. Furthermore, before Janak
released the inmates he told inmate O’Kelly to
control "his guys." Janak (again, assuming the
truth of Mayoral’s view of the case) seems to
have deliberately abdicated his responsibility
and put the fate of the inmates in the hands of
another inmate. We hope that is not common
practice; to say the least, it seems unwise and
could be seen as a sign of deliberate
indifference to what happens. It is obvious that
O’Kelly was not interested in keeping the peace;
he, it is claimed, was the one who stabbed
Mayoral. Perhaps he was controlling the troops,
but not for peaceful purposes. It is impossible
to say as a matter of law that one who leaves
such a volatile situation under the control of an
inmate is not deliberately indifferent to inmate
health and safety. It is a question for a jury to
decide.

  Accordingly, the judgment is AFFIRMED IN PART and
REVERSED IN PART. The claims against Jackson and
Janak are REMANDED to the district court for
further proceedings.




  RIPPLE, Circuit Judge, concurring in part and
dissenting in part. I agree that the grant of
summary judgment to Sergeant Janak and Officer
Jackson in their individual capacities must be
reversed.

  In my view, the claim against Captain Theisen
in his individual capacity ought to survive
summary judgment. Captain Theisen was the shift
commander. During his watch, one of his
subordinate officers, Sergeant Janak, had to go,
with his hat in his hand, to an inmate gang
leader and plead for the end of a violent episode
by drunken inmates. Captain Theisen had
operational responsibility for the situation, but
the prison gangs had operational control.
Management was not managing; it had surrendered
its responsibilities to the inmates. Under these
circumstances, a jury could determine that the
shift commander could have remained unaware of
the deplorable state of jail security only by
conscious avoidance/1 of the knowledge or by
reckless indifference.

  The claim against Sheriff Sheahan also must
survive summary judgment. I cannot join my
colleagues’ characterization of this claim as
seeking to impose a rigid, constitutionally
imposed duty on the Sheriff to structure living
arrangements so that inmates of different gang
affiliations are kept completely separate. The
plaintiff simply contends that gang affiliation
ought to be a screening factor at the divisional
level so that it is a factor in placement. On
this record, a trier of fact certainly could
conclude that the Sheriff took no adequate
measures to protect inmates from gang violence in
the jail. Given the extent of gang control of
this facility, the trier of fact certainly could
determine that even those at the highest level of
responsibility could only have remained unaware
of such a deplorable state of jail security by
conscious avoidance of the knowledge or by
reckless indifference.
/1 See Farmer v. Brennan, 511 U.S. 825, 843 n.8
(1994); Higgins v. Correctional Med. Servs. of
Illinois, Inc., 178 F.3d 508, 511 (7th Cir.
1999); West v. Waymire, 114 F.3d 646, 651 (7th
Cir. 1997).
