                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-1961
ANTHONY RICCARDO,
                                           Plaintiff-Appellee,
                              v.

LARRY RAUSCH,
                                        Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
      No. 99-372-CJP—Clifford J. Proud, Magistrate Judge.
                        ____________
 ARGUED OCTOBER 22, 2003—DECIDED FEBRUARY 27, 2004
                    ____________



 Before FLAUM, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
  EASTERBROOK, Circuit Judge. Anthony Riccardo, an
inmate of the Centralia Correctional Center in Illinois,
needed a new cellmate after his former cellmate complained
about being housed with him. Normally that pairing would
have been made by Centralia’s placement office, but when
the evening of May 28, 1997, arrived and some inmates
remained unassigned after the regular placement officers
had left, the task fell to Lt. Larry Rausch, who was serving
the second shift. Rausch matched Riccardo with Juan
Garcia, a pairing that should have lasted only until the
placement officers on the day shift could review matters.
2                                                No. 02-1961

Two days later Garcia sexually assaulted Riccardo, who
sued Rausch under 42 U.S.C. §1983. A jury concluded that
Rausch had subjected Riccardo to cruel and unusual
punishment and awarded $1.5 million in compensatory
damages. The district court entered judgment on this ver-
dict, and Rausch appeals.
  His lead-off argument is that Riccardo failed to use his
administrative remedies. If so, then 42 U.S.C. §1997e(a),
part of the Prison Litigation Reform Act, forecloses this suit
even though Riccardo challenges a discrete incident and
wants a form of relief—money damages—that the ad-
ministrative process in Illinois does not provide. See Porter
v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S.
731 (2001). Riccardo did file an administrative grievance,
but Rausch contends it was too late (in February 1998,
while Illinois sets a limit of six months) and asked the state
to prosecute Garcia rather than do anything about Rausch
and the classification system.
   Prisoners must follow state rules about the time and
content of grievances. See Pozo v. McCaughtry, 286 F.3d
1022 (7th Cir. 2002); Strong v. David, 297 F.3d 646 (7th Cir.
2002). Failure to do this means failure to use (and thus to
exhaust) available remedies. Yet the state’s administrative
apparatus did not reject Riccardo’s grievance as untimely;
it accepted and denied the grievance on the merits. At the
time of these events, Illinois permitted a filing after six
months when the prisoner had good cause, see 20 Ill.
Admin. Code §504.810 (1997). The official handling the
grievance must have found good cause; anyway, we held in
Pozo that, when a state treats a filing as timely and
resolves it on the merits, the federal judiciary will not
second-guess that action, for the grievance has served its
function of alerting the state and inviting corrective action.
286 F.3d at 1025.
  As for the content of this grievance: true enough, its main
objective was to have Garcia prosecuted. (Riccardo deemed
No. 02-1961                                                 3

inadequate Garcia’s punishment within the prison system.)
But it also at least hinted at problems in prison administra-
tion. Riccardo wrote: “[T]he administration don’t [sic] do
there [sic] job. [A sexual assault] should’ve never [sic]
happen again.” This language is ambiguous. There are two
principal ways to reduce the number of sexual assaults in
prison: better steps ex ante to separate potential aggressors
from potential victims; and harsher penalties ex post in
order to deter future assaults. Riccardo did not distinguish
between the two, and a prison administration receiving
such a grievance should have considered both. Illinois has
not adopted any rule governing the level of detail required
of prisoners’ grievances. “When the administrative rulebook
is silent, a grievance suffices if it alerts the prison to the
nature of the wrong for which redress is sought. As in a
notice-pleading system, the grievant need not lay out the
facts, articulate legal theories, or demand particular relief.
All the grievance need do is object intelligibly to some
asserted shortcoming.” Strong, 297 F.3d at 650. The
document that Riccardo filed is at the border of intelligibil-
ity; it is hard to imagine much less that a prisoner could do
and still alert the prison; yet this grievance did complain
that Garcia had committed a rape and that “the administra-
tion don’t do there job.” A generous construction of this
grievance would have induced the prison to consider the
possibility that the guards could have prevented this
assault. So we conclude that Riccardo exhausted the
administrative process. If Illinois wants grievances to be
more detailed, it must adopt appropriate regulations and
inform prisoners what is required of them. Riccardo is
entitled to a decision on the merits of his constitutional
claim.
  Because Riccardo prevailed at trial, we recap the facts
in the light most favorable to his position. Riccardo was
anally raped by his cellmate at Cook County Jail, shortly
after his conviction for aggravated assault. When he arrived
4                                                No. 02-1961

at Centralia Correctional Center in November 1996, he told
the prison psychologist that he did not feel safe. After a
stint in segregation for violating prison rules, Riccardo
declined to return to the general population. He told guards
that a cellmate in the segregation unit had stolen some of
his property and objected to spending another day with that
cellmate. He believed that the responsible inmate belonged
to the Latin Kings gang and that the Latin Kings may have
been preparing to kill him—though he did not say why he
believed this. But Centralia allows inmates to veto housing
with persons they declare to be enemies, so the prison found
Riccardo a new cellmate. When, after a few days, that
cellmate objected to spending more time with Riccardo,
another pairing was required. (The segregation unit was too
crowded to permit Riccardo a cell of his own.)
  During the afternoon of May 28, Garcia had offered
to help Riccardo retrieve his stolen property. Riccardo took
this as an ill omen rather than as a genuine offer of assist-
ance and told Lt. Alemond that he feared for his life if celled
with Garcia. Although Alemond said that he would “take
care of it,” he did nothing—he did not either find a cellmate
for Riccardo or alert Lt. Rausch, Alemond’s replacement on
the next shift. About 9:30 that evening, Rausch brought
Garcia to Riccardo’s cell and told him that Garcia was his
new cellmate. Before the cells were locked for the night,
Riccardo sought out Rausch in private and told him that he
believed that the Latin Kings had a “hit” out on him, and
that he feared for his life if celled with Garcia. Rausch
replied that there was no place else to put Garcia (or
Riccardo) that evening, and that he could not refuse
housing while in segregation. Rausch then brought Riccardo
and Garcia back together and asked each, in turn, if he had
a problem with the other. Riccardo shook his head in the
negative. Rausch took that as agreement to the assignment.
That was Riccardo’s last contact with Rausch. As we have
mentioned, nothing untoward happened that evening or the
No. 02-1961                                               5

next, but during the evening of May 30 Garcia compelled
Riccardo to perform oral sex. The record does not suggest
that this assault had any connection to the Latin Kings.
During the time between assignment and assault, Riccardo
did not ask for a different cellmate (though he did file two
grievances on May 29 about other matters). Circumstances
brought out at trial suggest that other guards should have
recognized on May 30 that problems had developed between
Riccardo and Garcia; their failure to intervene may be
culpable but cannot be attributed to Rausch, whose liability
depends exclusively on his actions the evening of May 28.
  Rausch did not assault Riccardo and is not vicariously
liable for Garcia’s crime. Like other guards, however,
Rausch was required to refrain from placing Riccardo in
harm’s way gratuitously. The qualification “gratuitously” is
important, because prisons are dangerous places. Inmates
get there by violent acts, and many prisoners have a
propensity to commit more. Guards cannot turn away
persons committed by the courts; nor do individual guards
have any control over crowding and other systemic cir-
cumstances. All that can be expected is that guards act
responsibly under the circumstances that confront them.
See McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991). A
guard may be responsible without being credulous. Some
prisoners are manipulative and cry “wolf” in an effort to
have a cell to themselves or choose a favored cellmate.
Other prisoners perceive specters in every shadow, even
though their fears are unsupported. (There is, for example,
no reason to think that the Latin Kings ever had it in for
Riccardo. He did not belong to a rival gang, and there is no
history of violent or overtly hostile encounters between
Riccardo and any gang member.) Guards therefore must
discriminate between serious risks of harm and feigned or
imagined ones, which is not an easy task given the brief
time and scant information available to make each of the
many decisions that fill every day’s work.
6                                                No. 02-1961

  The eighth amendment does not demand that guards
perform this task flawlessly. It does not even hold them to
the negligence standard. Liability is possible, instead, only
when a guard is deliberately indifferent to a substantial
risk of serious harm. See Helling v. McKinney, 509 U.S.
25 (1993); Wilson v. Seiter, 501 U.S. 294 (1991); Estelle
v. Gamble, 429 U.S. 97 (1976). “Deliberate indifference”
means subjective awareness. See Farmer v. Brennan,
511 U.S. 825 (1994). It is not enough, the Court held in
Farmer, that the guard ought to have recognized the risk.
Instead, “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.
  Rausch contends that Riccardo did not face a “substantial
risk of serious harm” from Garcia on the evening of May 28,
1997; that, if such a risk was present, Rausch did not
appreciate its existence; and that at all events he is entitled
to qualified immunity because reasonable officers would not
necessarily have understood that the law clearly required
Riccardo and Garcia to be in separate cells. The first two
matters (the objective and subjective components of the
eighth amendment) are for the jury in the first instance,
with appellate review limited to the question whether any
reasonable juror could have found that the requisite level of
risk existed, and that Rausch knew it. Immunity, however,
is a matter of law for the court, to be decided without
deference to the jury’s resolution—and preferably before the
case goes to the jury. See Saucier v. Katz, 533 U.S. 194, 202
(2001); Anderson v. Creighton, 483 U.S. 635 (1987). The
district court brushed aside Rausch’s invocation of immu-
nity, writing that a guard cannot benefit from immunity if
the action taken was not a reasonable response to a risk
actually foreseen. That approach, which merges immunity
and the merits, is incompatible with Saucier and its
predecessors. See 533 U.S. at 203-06. Immunity protects
No. 02-1961                                                  7

officials who act at the “hazy border” (id. at 206) between
the lawful and the forbidden. That Rausch may have
overstepped the line does not mean that every reasonable
officer would have been bound to know that Rausch acted
improperly. We need not pursue the immunity defense,
however, because Saucier calls on appellate courts to
address the merits first, see id. at 201, and Rausch is
entitled to prevail outright: no reasonable juror could have
concluded, on this record, that Rausch actually recognized
that placing Garcia and Riccardo together exposed Riccardo
to substantial risk.
   Now it might seem that Rausch had to appreciate
the risk, because (a) Riccardo claimed to fear for his life
if celled with any member of the Latin Kings, and (b) Garcia
in fact harmed Riccardo. One problem with relying on how
things turned out to show knowledge of risk beforehand
is that Garcia did not act for the Latin Kings; he told
Riccardo that he was fulfilling a personal fantasy,
and Riccardo believed this explanation. Thus the risk
that Riccardo professed to fear (a “hit”) did not come to
pass. Even under the law of negligence, this is an important
distinction. If a school district entrusts a bus to a driver
with a bad drinking record, and the tipsy driver runs the
bus off the road while speeding, the school district is liable;
but if instead there is an accident for which the driver is not
at fault (a tree falls on bus), or the driver collapses of a
heart attack while on the road, the district is not liable,
because that was not the type of risk created or increased
by the negligent conduct even though hiring this particular
driver was in the causal chain. See, e.g., Berry v. Sugar
Notch Borough, 191 Pa. 345, 43 A. 240 (1899). The risk from
which Riccardo sought protection was not realized; for all
this record shows, the (objectively evaluated) risk to
Riccardo of sharing a cell with Garcia was no greater than
the risk of sharing a cell with any other prisoner.
8                                               No. 02-1961

  As for Rausch’s subjective assessment: though Riccardo
initially asserted mortal fear, when later asked whether
he “had a problem” with Garcia he shook his head to
give a negative answer. Rausch then had to decide which
statement to believe. Riccardo argues, and the jury evi-
dently concluded, that Rausch should have believed the first
statement, communicated in private, rather than the
second, communicated in Garcia’s presence. A rational
jury could have thought that guards should give priority
to statements made in private. (Rausch testified that, if
Riccardo had claimed to “have a problem” with Garcia, they
would have been separated; but Riccardo might have feared
the consequences in a later encounter in the prison’s
general population.) Still, what Rausch should have
believed is not the right question; we need to know what he
did believe. No reasonable jury could have found, in light of
Riccardo’s denial of “a problem” with Garcia and Rausch’s
decision to act accordingly, that Rausch subjectively
appreciated that his action would expose Riccardo to a
substantial risk of serious harm.
  As we have already explained, prisoners may object to
potential cellmates in an effort to manipulate assignments,
or out of ignorance; thus although a protest may demon-
strate risk it does not necessarily do so. The Constitution
does not oblige guards to believe whatever inmates say.
How does a reasonable guard separate fact from fiction?
Rausch knew when making the assignment at least two
things beyond Riccardo’s contradictory assertions. First,
Rausch knew that Garcia was himself in segregation for
protection from the Latin Kings (or at least a subset of
them). Perhaps Garcia was manipulating the system
himself, falsely asserting to fear the Latin Kings so that
he could serve as their assassin; but at least at first cut
Garcia could not be deemed a gang enforcer (and, as we
learned ex post, his attack on Riccardo was neither a “hit”
nor gang related). Second, Rausch knew that Garcia had a
No. 02-1961                                                 9

clean record in prison. He had not been disciplined for acts
of violence (let alone for sexual assault). That makes it
reasonable for Rausch to have deemed Riccardo’s initial
protestation unjustified. It is not as if Rausch housed
Riccardo with a known sexual predator.
  Riccardo might have responded to these facts by show-
ing that there is a strong correlation between prisoners’
professions of fear and actual violence. How many murders
(or homosexual assaults) occur in Centralia (or the Illinois
prison system) per hundred inmate-years of custody? How
many violent events were preceded by requests for protec-
tion? How many requests for protection were dishonored,
yet nothing untoward happened? Data along these lines
would have enabled a jury (and the court) to evaluate actual
risks. If violence is common at Centralia, and inmates have
good track records in identifying potential aggressors, then
guards who do not have their heads in the sand must
actually (that is, subjectively) understand the risk an
inmate faces when a protest is disregarded. But if violence
is rare, or if there is poor correlation between inmates’
alarums and subsequent violence, then Riccardo’s initial
protest would not have provided Rausch with actual
knowledge of an impending assault. The record does not
contain any evidence along these lines. At oral argument
Riccardo’s counsel expressed dismay at the idea that
inmates’ professions of fear should be put to an empirical
test. As counsel saw things, prisoners are unerringly ac-
curate in appreciating the risks they face and invariably
truthful in dealing with the staff. That seems to us unlikely;
and if it is so it must be proved to be so and was not.
  Rausch also was entitled to believe that his assignment
of Garcia and Riccardo to share a cell would last for one
night only. During the next day shift the placement office,
armed with better information, was supposed to make a
fresh evaluation and, if appropriate, a new assignment.
Apparently that did not happen; the record does not show
10                                               No. 02-1961

why. (Maybe it did happen and the staff approved Rausch’s
action.) If Rausch knew that the staff charged with this re-
sponsibility routinely failed to carry it out, then he might
have been obliged to take additional precautions (such as
separate interviews of Garcia and Riccardo to probe these
issues more deeply) before making an assignment. Rausch
himself testified that separate interviews would have been
better practice, but the Constitution does not enforce all
“better practices”; this is one respect in which the eighth
amendment standard differs from the negligence standard.
But Riccardo does not contend, and the record does not
demonstrate, that disregard of the classification system
at Centralia was so common that Rausch was bound to
know that his assignment would last indefinitely. Nor was
Rausch bound to foresee that, if Riccardo was in genuine
fear, he would neglect to complain the next day, when he
readily could have done so. (Recall that Riccardo filed
two grievances on May 29 about other subjects.) Riccardo
testified that he was too terrified to protest and was put off
by Rausch’s assertion that prisoners in segregation can’t
refuse assignments; yet grievances are confidential (so
Garcia would not have known), and prisoners often appeal
over the head of a guard who has told them that something
can’t or won’t be done. Riccardo had already objected to, and
obtained the removal of, at least one cellmate assigned to
him in segregation. At all events, the question on the table
is what Rausch knew (or deliberately avoided learning) on
May 28; and there is no evidence that Rausch subjectively
believed that Riccardo would fail to use his opportunity to
seek further review the next day.
  Illinois is free, if it wishes, to give prisoners veto power
over the identity of their cellmates. But the eighth amend-
ment does not do so of its own force, and prisoners cannot
use the Constitution to achieve this control indirectly by
making unsubstantiated assertions. The constitutional
question is not what Riccardo (initially) said, but what
No. 02-1961                                               11

Rausch actually believed. This record does not permit a
reasonable jury to find that Rausch knew or deliberately
disregarded the fact that his actions subjected Riccardo to
a substantial risk of serious harm, so the judgment is
                                                 REVERSED.




  WILLIAMS, Circuit Judge, dissenting. While I agree that
Anthony Riccardo did in fact exhaust his administrative
remedies, I disagree with the majority’s decision to overturn
the judgment in this action as a reasonable jury had ample
evidence to find that Lieutenant Larry Rausch was deliber-
ately indifferent to the substantial risk of harm Riccardo
faced by being celled with Juan Garcia. Therefore, I respect-
fully dissent.
  On May 30, 1997, while celled with Juan Garcia, a known
member of the Latin Kings, Riccardo’s head was forcibly
shaven by Garcia such that Riccardo was “bleeding pretty
bad.” Tr. I at 81-82. Garcia then attempted to sodomize
Riccardo; however, he was able to resist. Tr. II at 50. After
Riccardo resisted, Garcia ejaculated on Riccardo’s feet. Tr.
I at 83-84. Riccardo was then forced to perform oral sex on
Garcia for 15 to 20 minutes. Id. The assault ended when an
officer walked by the cell. As the majority notes, the events
which give rise to Lt. Rausch’s liability are limited to the
happenings on the evening of May 28, 1997, when Lt.
12                                                  No. 02-1961

Rausch replaced Lt. Alemond1 as the lieutenant in charge
of the segregation and receiving units at Centralia prison.2
  On appeal, Lt. Rausch contends, and the majority agrees,
that the evidence introduced at trial was legally insufficient
to support a finding of liability under the Eighth Amend-
ment. To sustain overturning a jury verdict, the record
must demonstrate no “legally sufficient evidentiary basis
for a reasonable jury to find for the non-moving party.”
Payne v. Milwaukee County, 146 F.3d 430, 432 (7th Cir.
1998). While undertaking this assessment, we analyze the
“the totality of the evidence,” Sheenan v. Donlen Corp., 173
F.3d 1039, 1043 (7th Cir. 1999), and are obliged to leave the
judgment undisturbed unless the moving party can show
that “no rational jury could have brought in a verdict
against him.” EEOC v. G-K-G, Inc., 39 F.3d 740, 745 (7th
Cir. 1994). It is not within the province of the appellate
courts to “reweigh the evidence.” Knox v. State of Indiana,
93 F.3d 1327, 1332 (7th Cir. 1996). Lastly, and most
importantly, all reasonable inferences must be analyzed in
the light most favorable to Riccardo as the non-moving
party. Sheenan, 173 F.3d at 1044.
  In Farmer v. Brennan, 511 U.S. 825, 834 (1994) the Court
bifurcated the standard for Eighth Amendment liability
into an objective element and a subjective element. First,
the potential harm to the inmate must be objectively
serious. Id. (citing Wilson v. Seiter, 501 U.S. 294, 298


1
  Riccardo previously complained to Lt. Alemond that he feared
being celled with Garcia because he was a Latin King, however,
the record reveals that this previous complaint was not voiced to
Lt. Rausch and therefore may not support a finding of liability
against him.
2
  Lt. Rausch testified that he had no recollection of the events
which transpired on May 28. Tr. III at 68. Thus, the jury was left
with Riccardo’s testimony concerning the events of that evening.
No. 02-1961                                                 13

(1991)). Second, under the subjective prong, the prison
official must “deliberately disregard” this potential harm by
being “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and
[also] draw[ing] the inference.” Id. at 838.
   The second inquiry is a question of fact, sustainable
through circumstantial evidence, id. at 842, mandating
an “inquiry into a prison official’s state of mind.” Id. at 837
(quoting Wilson, 501 U.S. at 299). “A prisoner normally
proves actual knowledge of impending harm by showing
that he complained to prison officials about a specific threat
to his safety.” McGill v. Duckworth, 944 F.2d 344, 349 (7th
Cir. 1991) (reasoning that the scienter requirement is
satisfied when a prison guard, “[s]uspect[s] something is
true but shut[s] [his] eyes for fear of what [he] will learn” or
“[goes] out of [his] way to avoid acquiring unwelcomed
knowledge”).
  The Supreme Court also cautioned that an “Eighth
Amendment claimant need not show that a prison official
acted or failed to act believing that harm actually would
befall an inmate; it is enough that the official acted or failed
to act despite his knowledge of a substantial risk of serious
harm.” Farmer, 511 U.S. at 842. Likewise, a claimant need
not prove that a prison official was aware of the specific
type of harm which befell the prisoner, only that the prison
official was aware that a substantial risk of some type of
danger existed. See Haley v. Gross, 86 F.3d 630, 643 n.33
(7th Cir. 1996) (applying Farmer, 511 U.S. at 843) (uphold-
ing jury verdict for $1.65 million based on a finding that
prison guards were deliberately indifferent by failing to
respond to a prisoner’s repeated request to be removed from
cell when his cellmate set fire to cell causing the cellmate’s
death and plaintiff’s severe burns). Thus, it was Riccardo’s
burden to show that Lt. Rausch actually knew that there
was a substantial risk that Garcia would harm Riccardo. Id.
However, Lt. Rausch would be shielded from liability if no
14                                               No. 02-1961

objectively serious risk existed, he was unaware of the
impending risk, McGill, 944 F.2d at 349, or he took reason-
able steps to abate it, whether successful or not, Farmer,
511 U.S. at 844.
  Admittedly, there is evidence in the record to support a
finding that Garcia did not objectively pose a substantial
threat to Riccardo—namely, the fact that Garcia was also
placed in segregation for “enemy protection,” allegedly from
the Latin Kings, and that Garcia had no history of sexual
assault. However, that is not the standard by which this
case should be reviewed. The standard is whether there
exists a legally sufficient evidentiary basis for a reasonable
jury to find in favor of Riccardo. Payne, 146 F.3d at 432.
  A jury could have reasonably believed that Lt. Rausch
was deliberately indifferent to the substantial risk of harm
to Riccardo. It is undisputed that Garcia was a member of
the Latin Kings. In their first interaction, Riccardo pri-
vately pulled Lt. Rausch aside and expressed his fear of
being celled with Garcia. Thus, Riccardo has presented
sufficient evidence to support the finding that Lt. Rausch
was made aware of the potential harm. See McGill, 944
F.2d at 349. The jury could have further found that Lt.
Rausch’s decision to question Riccardo in front of Garcia
was not a reasonable way to abate the potential danger
to Riccardo. Moreover, Lt. Rausch admitted that “[i]f
[Riccardo] would have told me he feared for his life, if he
refused housing or thought there was a threat to his safe-
ty[,] he would not have been placed—they would not have
been placed together.” Tr. III at 73. Thus, a jury could have
determined that Lt. Rausch’s admission, coupled with his
prior statements to Riccardo on May 28 that Riccardo could
not turn down a housing assignment in segregation, and
that Riccardo could not be moved to another cell due to a
lack of space, amounted to Lt. Rausch “deliberately”
No. 02-1961                                                    15

avoiding learning that Riccardo was in danger.3 Such an
analysis avoids the use of ex post occurrences, such as the
fact that Garcia did in fact assault Riccardo, to sustain a
finding of deliberate indifference. Moreover, the fact that
Lt. Rausch is able to point to evidence in the record to sup-
port his position does not mandate reversal of the jury’s
verdict. Our sole duty as an appellate court is to analyze
whether the record supports the jury’s determination. It is
not our function to reweigh the evidence. Knox, 93 F.3d at
1332.
  I am further troubled by the majority’s reliance on
Riccardo’s second statement to Lt. Rausch (made in front of
Garcia) to sustain overturning the jury’s verdict. As it
stands, the deliberate indifference inquiry is an inherently
factual determination, Farmer, 511 U.S. at 842, which re-
quires an “inquiry into a prison official’s state of mind,” id.
at 837.4 Thus, whether this second statement is used to



3
  Significantly, Riccardo was actually housed in the receiving unit
as opposed to the segregation unit during the assault. The jury
heard testimony that the receiving unit is only used to house
inmates when the segregation unit is full. Tr. I at 24. Thus, Lt.
Rausch’s statement to Riccardo that there was no place else to
house him carried even greater weight. The jury also heard tes-
timony that it would have required more work for Lt. Rausch to
move Riccardo from a cell in receiving to a cell in segregation due
to the time of the alleged refusal and the occupancy of receiving
and segregation, Tr. III at 75-77, further supporting Riccardo’s
belief that any additional complaints about his cell assignment
would have been futile. Finally, the jury was told a prisoner may
be moved from one cell to another at any time. Tr. I at 25. There-
fore, the jury had ample evidence to support its finding that Lt.
Rausch’s actions rose to the level of deliberate indifference.
4
  The Supreme Court’s discussion only further highlights the
propriety of allowing a jury to make this determination:
                                                   (continued...)
16                                                      No. 02-1961

support the assertion that there was no “objective” risk to
Riccardo or that Lt. Rausch was stripped of his “subjective”
knowledge of the harm, it is clear that Lt. Rausch’s credibil-
ity and sincerity are integral components to the usefulness
of this interaction. In essence, the majority accepts Lt.
Rausch’s assertion that his second discussion with Riccardo
in front of Garcia was a sincere investigation of the poten-
tial risk to Riccardo. However, the jury found otherwise.
Further, when asked to review the defendant’s Rule 50
motion, the district court aptly stated:
      [T]here is ample evidence from which to conclude
      that Rausch’s attempt to ascertain the seriousness
      of the threat was mere pretense, and that because
      he did not want to go to the extra effort to find
      different accommodations for Garcia, he recklessly
      disregarded what he knew to be a dangerous sit-
      uation. That decision to essentially disregard the
      threat is where liability lies. A jury could have
      reasonably inferred that Rausch crossed the line
      from gross negligence to deliberate indifference



4
    (...continued)
       When instructing juries in deliberate indifference cases
       with such issues of proof, courts should be careful to
       ensure that the requirement of subjective culpability is
       not lost. It is not enough to merely find that a reasonable
       person would have known, or that the defendant should
       have known, and juries should be instructed accordingly.
Id. at n.8; accord Lewis v. Richards, 107 F.3d 549, 556 (7th Cir.
1997) (Flaum, C.J., concurring) (“In view of the Supreme Court,
the safeguard against jurors whose outrage at prison violence
might lead them to sanction officials in the absence of an Eighth
Amendment violation is not a relaxed summary judgment stand-
ard, but jury instructions that properly convey the applicable law.
Lower federal courts, in my view, should exhibit a similar faith in
the willingness of juries to follow the law.”).
No. 02-1961                                                    17

    based on the ludicrousness of ‘asking’ each inmate
    if he had a problem with the other. Credibility had
    to have been the key to the jury’s analysis, thus the
    Court cannot interject its own credibility determi-
    nations; and if it could, having observed both par-
    ties’ testimony, it may well have reached the same
    conclusion as the jury. [. . .]
    [A] prison official will only be freed from liability if
    he responded reasonably to the risk. As mentioned
    above, Rausch’s method of questioning could be
    perceived as deliberately forcing plaintiff to make a
    Hobson’s choice.
Riccardo v. Rausch, No. 99-CV-372-CJP, at 15 (S.D. Ill.
Mar. 7, 2002) (order denying F.R.C.P. Rule 50(b) motion)
(citations omitted) (emphasis in original). By taking Lt.
Rausch at his word, the majority’s decision has the effect of
immunizing prison officials from liability based on po-
tentially unreasonable or contrived actions, and sanctions
Lt. Rausch’s admittedly unreasonable behavior.
  In an attempt to break the causal link between Lt.
Rausch’s actions and the harm to Riccardo, the majority
asserts that “the risk that Riccardo professed to fear (a ‘hit’)
did not come to pass.” Majority opinion at 7. The inquiry,
however, is not whether “a hit” was actually put out on
Riccardo as that would constitute the sort of impermissible
ex post determination eschewed by the majority. Rather, the
focus is solely on whether Lt. Rausch was made aware that
a substantial risk of some type of danger existed prior to the
actual event. See Haley, 86 F.3d at 643 n.33. Under the
majority’s analysis are we to presume that Riccardo’s pleas
for protection would only guard against murder or physical
beating? For the purposes of an Eighth Amendment
inquiry, in the prison context, I find no real distinction
between “a hit” and a sexual assault.
  The majority also frees Lt. Rausch of liability based on
the assertion that Lt. Rausch was under no duty to foresee
18                                                  No. 02-1961

that Riccardo would not complain to other prison officials
between May 28, the date of Lt. Rausch and Riccardo’s
interaction, and May 30, when the assault actually took
place. The record reveals, however, that Garcia closely
watched Riccardo’s actions impeding Riccardo’s ability to
have a private conversation with prison guards outside of
Garcia’s presence. Tr. I at 76-82; Tr. II at 42-43. Further,
when Riccardo attempted to alert prison officials, Garcia
responded with escalating violence. Tr. II at 46-47. In light
of Riccardo’s reasonable belief that he could not refuse his
housing assignment and that there was no other available
cell, see note 3, supra, Riccardo did not realistically have
the ability to complain to other guards without alerting
Garcia and incurring his wrath.
  The majority’s decision to question the adequacy of
Riccardo’s pleas for protection by requiring evidence con-
cerning the overall number of sexual assaults at Centralia
prison is also curious. See Lewis, 107 F.3d at 556 (Flaum,
C.J., concurring) (“[T]he majority’s emphasis upon the ade-
quacy of Lewis’s pleas for protection strikes me as in-
appropriate.”). The prison recognizes that “some prisoners
are manipulative and cry ‘wolf’,” majority opinion at 5,
and has created a procedure to deal with this recurring pos-
sibility. A prisoner’s request for a cell transfer is always
honored if the prisoner alleges a fear for his personal safety,
Tr. I at 44, but the prison deals with potential frivolity by
treating every request as a potential disciplinary violation.
Id.5 Thus, the prison has created a procedure whereby a
prisoner is moved first, and questions concerning the sin-
cerity of the request are asked later. In addition, the
inquiry under the Eighth Amendment is an individualized
one, i.e., Riccardo was required to prove, based on the


5
  Major Lawrence Jefferson was clear that “if [a prisoner is] just
refusing housing just to refuse housing with no reason, then we'll
move him for that, but he’ll get a ticket for that.” Id.
No. 02-1961                                               19

individual facts of his case, that he was subjected to an
objectively serious harm and that Lt. Rausch was “aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed].” Farmer, 511
U.S. at 838.
  Finally, though unpursued by the majority, defendant
argues that should a constitutional violation be found, he is
nevertheless entitled to qualified immunity. According to
Lt. Rausch, previous case law must show that “no rea-
sonable prison official would have believed it was constitu-
tional either to cell an inmate with someone who gave
conflicting answers when asked (in the other inmate’s
presence) if he had a problem with that inmate, or to rely
on a policy requiring review of all placement decisions for
suitability within hours.” Appellant’s Brief at 33. However,
the Supreme Court in Hope v. Pelzer, expressly rejected the
notion that in order for a right to be “clearly established”
previous case law must contain facts which are “materially
similar” to the facts contained in the underlying action. 536
U.S. 730, 739 (2002); see also Burgess v. Lowery, 201 F.3d
942, 944-45 (7th Cir. 2000). Rather, the Court focused on
whether the prior case law would place officers on notice
that their conduct is unlawful. Id. It is clear that Farmer
put prison guards on notice that they have a duty, under
the Eighth Amendment, to protect inmates from being
gratuitously beaten or raped by other inmates. See id. at
833; see also Haley, 86 F.3d at 646 (rejecting qualified
immunity defense in light of Farmer decision which further
elucidated “deliberate indifference” standard).
  In light of the aforementioned, I must agree with the trial
court that a reasonable jury had ample evidence to sustain
this verdict and thus I respectfully dissent.
20                                        No. 02-1961

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—2-27-04
