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

No. 06-3647
RUBEN GUZMAN,
                                                  Plaintiff-Appellant,
                                  v.

MICHAEL F. SHEAHAN, Sheriff, et al.,
                                               Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
        No. 04 C 1814—Martin C. Ashman, Magistrate Judge.
                          ____________
       ARGUED MAY 3, 2007—DECIDED AUGUST 7, 2007
                          ____________


  Before EASTERBROOK, Chief Judge, and FLAUM and RIPPLE,
Circuit Judges.
  RIPPLE, Circuit Judge. Ruben Guzman was incarcerated
as a pre-trial inmate at Cook County Jail. In this action,
brought under 42 U.S.C. § 1983, he alleged that Cook
County, various prison guards and law enforcement
officials violated his right to due process of law as guaran-
2                                                  No. 06-3647

teed by the Fourteenth Amendment.1 The district court
granted the defendants’ motion for summary judgment.2
Mr. Guzman timely appealed. For the reasons set forth
in the following opinion, we affirm the judgment of the
district court.


                                I
                      BACKGROUND
                               A.
  Mr. Guzman was a pre-trial inmate at Cook County Jail.
On January 21, 2003, Mr. Guzman saw a fellow detainee
passing out papers and asked him what the papers con-
tained. Another inmate, Willis Reese, told Mr. Guzman
it was none of his business and, unprovoked, hit
Mr. Guzman in the face. Reese threw many punches at
Mr. Guzman and hit him on the left side of his face.
Mr. Guzman punched Reese at least once. After this first
exchange of punches, Reese paused for 15-20 seconds to
catch his breath and then resumed punching Mr. Guzman.
After three to six minutes, Reese hit Mr. Guzman on the
left side of his face with a broom. The correctional officers
entered the room just as Reese struck Mr. Guzman with
the broom.


1
  The plaintiff has not appealed the district court’s dismissal of
the third count of his second amended complaint, which alleges
municipal liability against Cook County. Therefore, the issue
of municipal liability is not before us.
2
  The parties consented to allow a magistrate judge conduct
the proceedings and enter final judgment. See 28 U.S.C. § 636(c);
N.D. Ill. R. 73.1(a).
No. 06-3647                                                3

  Officer Sandra White was the guard on duty when this
altercation occurred. The on-duty guard sat in an office
known as the “Interlock” which was separated from the
main room by a window. Immediately after Reese hit
Mr. Guzman the first time, Mr. Guzman saw Officer
White talking into her radio. Officer White stated that
she had placed a “10-10” call at this time to solicit help
from other officers in order to break up the fight. As part
of her training, Officer White had been instructed to make
a “10-10” call to report inmates fighting, and she was
also told to exercise her authority by giving verbal com-
mands in an attempt to induce inmates to cease fighting.
Officer White was required to stay in the Interlock at all
times; she was instructed that she should wait for backup
before leaving the Interlock. Although she contends that
she did remain at her post, Mr. Guzman claims that she
left the Interlock room for three to six minutes and then
returned with other officers to aid in breaking up the fight.
  Mr. Guzman was taken to Cermak Health Services and
later to Cook County Hospital where an examination
revealed that he had suffered a lacerated cornea and eye-
lid. He had surgery that day and a second surgery a week
later. Mr. Guzman remains unable to see out of his left eye.
  Mr. Guzman had not seen or spoken with Reese before
the altercation; he had not complained to any of the guards
about Reese. None of the officers at Cook County Jail knew
of any prior difficulty between Mr. Guzman and Reese.
  Mr. Guzman’s complaint also alleged that the Illinois
Department of Corrections had a policy and procedure for
the classification of inmates that was designed to ensure
that inmates were placed in the proper detention facilities.
Section 710.70(c) of the Administrative Regulations pro-
mulgated by the Illinois Department of Corrections re-
4                                               No. 06-3647

quires local detention facilities to reclassify all inmates
every 60 days. General Order 13.6 of the Cook County
Department of Corrections sets forth this requirement for
the Cook County detention facilities. According to the
Cook County regulations, an inmate is to be reclassified if
the inmate returns from court with a mittimus, or war-
rant of commitment to prison, that lists a new or up-
graded charge. An inmate also should be reclassified if his
bond is changed or if his status otherwise changes for
disciplinary reasons. Department of Corrections officials
in the Cook County detention facilities are required to
review every inmate for reclassification every 60 days.
  The reclassification procedure in Cook County was
supposed to be implemented in the following manner:
Each night at midnight, Lt. Michael Maeweather received
an alphabetical printout of those inmates due for reclassifi-
cation the next day. He then gave this list to the reclassifi-
cation personnel who would check the charges and bonds
on the computer and ensure that all of the inmates were
classified properly. Both parties acknowledge that, even
though the jail employees were supposed to get through
the entire list each day, this task was an impossible one
because of the large number of inmates. Various law
enforcement officials testified that, despite contrary
regulations, inmates with different criminal histories
were often housed together due to overcrowding.
  Michael F. Sheahan served as the sheriff at the time these
events transpired. Superintendent Daniel Brown, as the
superintendent of all aspects of Division 5 operations in the
Cook County facility, was charged with ensuring that
classification and reclassification of inmates was performed
in accordance with the Classification Operations Manual.
Lt. Maeweather was the supervisor in Mr. Guzman’s
No. 06-3647                                              5

division and reported directly to Supt. Brown. He was
charged with ensuring inmates were reclassified properly.
  Mr. Guzman submits that Reese’s classification was not
changed when it should have been according to the
reclassification procedure. He contends that this lapse
was due to a de facto policy and procedure implemented
by the defendant officers that tolerated a delay in the
reclassification of inmates in the Cook County Jail. Both
Reese and Mr. Guzman initially were classified as “Me-
dium Security,” but Reese also had been categorized as a
“serious violence threat.” In addition, Reese’s bail status
also had changed. In Mr. Guzman’s view, when the July 18,
2002 mittimus had been issued showing the addition of
a murder charge, Reese should have been reclassified as
Maximum Security.


                            B.
                            1.
  The district court granted the defendants’ motion for
summary judgment. The court first addressed Count I of
Mr. Guzman’s complaint in which he alleged that Officer
White had been consciously and deliberately indifferent
to his safety and welfare. The district court noted that,
because Mr. Guzman was a pre-trial inmate, his § 1983
claim should be analyzed under the Due Process Clause of
the Fourteenth Amendment. Under the Fourteenth Amend-
ment, Mr. Guzman is afforded protection against deliberate
indifference to his safety. In her defense, Officer White
submitted that she had no previous knowledge of a
substantial risk of serious injury to Mr. Guzman and that
her response to the assault was both adequate and rea-
sonable.
6                                               No. 06-3647

  The district court noted that the parties were in agree-
ment that there was no evidence from which a trier of
fact could conclude that Officer White was aware of a
substantial risk of serious injury to Mr. Guzman. Further-
more, the court stated that, even if Officer White had actual
knowledge of a substantial risk to Mr. Guzman, the rec-
ord would not support a finding that she had responded
unreasonably to the risk presented by the assault. Noting
that Mr. Guzman took the view that Officer White was
put on notice, after Reese’s initial attack on him, that
additional hostility might follow, the court concluded that
the evidence of record did not support the view that
Reese’s actions toward Mr. Guzman could be neatly
separated into two distinct episodes. The court further
held that, even accepting Mr. Guzman’s account that
Officer White should have yelled at the inmates to stop
fighting and should have stayed at her post until the arrival
of the backup officers, Officer White nevertheless had acted
reasonably, if not perfectly, in response to the unfolding
situation. In the course of its discussion, the district court
acknowledged and distinguished Peate v. McCann, 294 F.3d
879 (7th Cir. 2002), relied upon by Mr. Guzman, and noted
that, unlike the situation here, that case involved two
distinct altercations. The officer in Peate had a clear warn-
ing of the hostility between the two inmates because he had
been present when officers had stopped the first alterca-
tion. He nevertheless allowed one of the inmates to regain
access to his makeshift weapon, an act that precipitated the
second episode. By contrast, here, there was simply one
continuous episode, Officer White had no advance knowl-
edge of the potential risk and she acted reasonably in
response to the risk. Accordingly, ruled the district court,
a grant of summary judgment in the defendants’ favor was
appropriate on Count I.
No. 06-3647                                                  7

                              2.
  The district court next turned to Count II, in which
Mr. Guzman alleged that various officers of the Sheriff’s
Department had implemented and enforced de facto
policies and procedures that created known and obvious
risks of physical harm and injury to inmates at the Cook
County Jail and to Mr. Guzman in particular. The district
court noted that, because Mr. Guzman had brought offi-
cial capacity claims against the law enforcement officials,
he must demonstrate that their actions were taken with
deliberate indifference to known or obvious consequences
of such actions. The district court then determined that
the evidence of record did not establish an official policy
of indifference to substantial risk. Rather, the district
court held, the evidence showed that there were policies
in place designed to reclassify properly inmates and to
minimize risks of harm and other danger to detainees. In
the district court’s view, the evidence demonstrated
that, although other operational priorities sometimes
precluded completing all classification adjustments in a
timely manner, the cognizant officers did their best to
comply with the regulation’s mandate. The district
court therefore concluded that Mr. Guzman had failed
to present evidence of a de facto policy that violated his
constitutional rights. Accordingly, the district court
granted summary judgment in the defendants’ favor on
Count II.3




3
  The district court also addressed a third count of Mr. Guz-
man’s complaint and a motion to strike filed by the defendants.
These rulings have not been appealed to this court.
8                                                 No. 06-3647

                              II
                       DISCUSSION
                              A.
  Mr. Guzman appeals the district court’s grant of sum-
mary judgment in favor of the defendants. This court
reviews de novo a district court’s grant or denial of sum-
mary judgment. Magin v. Monsanto Co., 420 F.3d 679, 686
(7th Cir. 2005). All facts and reasonable inferences must be
construed in favor of the non-moving party. Id. Our role
is not to evaluate the weight of the evidence, to judge
the credibility of witnesses, or to determine the ultimate
truth of the matter. Rather, we simply determine whether
there exists a genuine issue of triable fact. Anderson v.
Liberty Lobby, 477 U.S. 242, 249-50 (1986). Summary judg-
ment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
a judgment as matter of law.” Magin, 420 F.3d at 686 (cit-
ing Fed. R. Civ. Pro. 56(c)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
  Mr. Guzman was a pre-trial inmate. Therefore, his § 1983
claims are analyzed under the Due Process Clause of the
Fourteenth Amendment rather than the Eighth Amend-
ment’s Cruel and Unusual Punishment Clause. See Bell v.
Wolfish, 441 U.S. 520, 535 n.16 (1979); see also Butera v.
Cottey, 285 F.3d 601, 605 (7th Cir. 2002). The protections for
pre-trial inmates under the Due Process Clause are at least
as great as those afforded inmates under the Eighth
Amendment, City of Revere v. Massachusetts Gen. Hosp., 463
U.S. 239, 244 (1983), and the standards are “frequently
consider[ed] [] to be analogous.” Washington v. LaPorte
No. 06-3647                                                 9

County Sheriff’s Dep’t, 306 F.3d 515, 517 (7th Cir. 2002).
Prison officials owe inmates, both those who have been
convicted and those being detained while awaiting trial,
a duty to protect them from violence inflicted by other
inmates. Farmer v. Brennan, 511 U.S. 825, 833 (1994). The
Due Process Clause protects pre-trial confinees like Mr.
Guzman from deliberate indifference to his safety and
welfare. Butera, 285 F.3d at 605. Our case law further
makes clear that this federal constitutional protection
extends only to objectively serious injuries.4 Fisher v.
Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005). Given these well-
established principles, in order to prove deliberate indiffer-
ence, Mr. Guzman must show that Officer White was
“aware of a substantial risk of serious injury to [Mr.
Guzman] but nevertheless failed to take appropriate
steps to protect him from a known danger.” Butera, 285
F.3d at 605.
   The Supreme Court of the United States set forth the
standard for deliberate indifference in Farmer v. Brennan,
511 U.S. 825, 834-37 (1994). Proving that an officer was
deliberately indifferent to the safety of a detainee requires
“more than a showing of negligent or even grossly negli-
gent behavior.” Fisher, 414 F.3d at 662. The officer must
have acted with “the equivalent of criminal recklessness.”
Id. Prison officials who had actual awareness of a sub-
stantial risk to the health or safety of an inmate incur no
liability if they “responded reasonably to the risk, even if
the harm ultimately was not averted, because in that case
it cannot be said that they were deliberately indifferent.”
Peate, 294 F.3d at 882. The “mere failure of the prison


4
  The parties do not dispute that Mr. Guzman’s injury was
sufficiently serious to warrant potential recovery.
10                                             No. 06-3647

official to choose the best course of action does not amount
to a constitutional violation.” Id.
  The parties dispute several factual matters in the record.
First, Mr. Guzman disputes the duration of the fight.
According to his account, it lasted three to six minutes.
Officer White contends it was only 30 to 60 seconds in
length. Second, Officer White claims that she was unable to
shout verbal commands to the inmates because she was
separated from them by a thick plate of glass. Mr. Guzman
urges that the window was constructed simply of mesh.
Finally, Mr. Guzman contends Officer White left her post
for three to six minutes and then returned with backup.
Officer White maintains that she remained at her post
throughout the altercation. Because this case comes to us
from the grant of summary judgment to the defendants, we
must view these facts in the light most favorable to Mr.
Guzman. See Magin, 420 F.3d at 686. However, even if
we view the facts in this manner, Mr. Guzman neverthe-
less has failed, as a matter of law, to demonstrate Officer
White’s deliberate indifference.
   We have addressed previously what constitutes suf-
ficient information to put an officer on notice that a
specific threat exists as to a particular inmate. In Butera,
the plaintiff inmate had told correctional officers that he
was “having problems in the block” and “need[ed] to be
removed.” Id. at 606. This information was insufficient,
we held, to alert the law enforcement officials to a specific
threat. Here, the record makes clear that Mr. Guzman never
before had interacted with Reese. Nor had he ever commu-
nicated to Officer White, or to anyone else, that Reese
might be a specific danger to him. The record does not
demonstrate that any of the defendant law enforcement
officials were actually aware of Reese’s proclivity for
No. 06-3647                                                  11

violence, and Mr. Guzman produces no evidence that
even would support an inference that such an aware-
ness existed. Mr. Guzman has failed to demonstrate that
any officers were on notice of a substantial risk of harm.
   As the district court realized, this case stands in stark
contrast to Peate v. McCann, 294 F.3d 879 (7th Cir. 2002). In
Peate, an inmate began beating the plaintiff with a sack
filled with rocks and other hard substances. Id. at 881. The
prison guards intervened and broke up the fight. Soon
after, a corrections officer permitted an inmate to regain
control of his makeshift weapon and, once again, the
inmate began beating the plaintiff. In reversing the dis-
trict court’s grant of summary judgment, we emphasized
that the first fight had been broken up and yet the guards
allowed a second fight to commence between the inmate
and the plaintiff. Id. at 883. We noted that the first alterca-
tion gave the corrections officer specific knowledge that
there was a substantial risk to the safety of the plaintiff. The
factual situation in Peate bears no resemblance to the facts
of this case. Officer White had no inkling that Reese and
Mr. Guzman might have a fight, and, further, even if the
fight lasted three to six minutes as Mr. Guzman submits,
there was no significant “break in the action” that could
support the conclusion that Officer White was deliberately
indifferent to a continued danger to Mr. Guzman.
  We analyzed the meaning of deliberate indifference
at some length in Washington v. LaPorte County Sheriff’s
Department, 306 F.3d 515, 517-18 (7th Cir. 2002). In addition
to noting that mere or even gross negligence will not
substantiate a finding of deliberate indifference, we stated
that, in a case such as the one before us, deliberate indif-
ference requires that the corrections officer must have
“actual knowledge” of the risk. Id. at 518 (emphasis in
12                                              No. 06-3647

original). In the instant case, Mr. Guzman has provided
no evidence sufficient to allow a trier of fact to conclude
that Officer White had actual knowledge of a risk of injury.
Mr. Guzman readily admits that he had not had earlier
problems with Reese and that he had never com-
municated any concern to Officer White or anyone else in
authority.
  The district court further determined that, even if Officer
White had actual knowledge of a substantial risk of
injury to Mr. Guzman, she nevertheless had responded
to this risk reasonably. We agree. A prison guard, acting
alone, is not required to take the unreasonable risk of
attempting to break up a fight between two inmates
when the circumstances make it clear that such action
would put her in significant jeopardy. Peate, 294 F.3d at
883. Taking the facts in the light most favorable to Mr.
Guzman, Officer White made a 10-10 call for backup
immediately after the altercation broke out. Then, accord-
ing to Mr. Guzman, she did nothing further, and left her
post in the Interlock for at least three minutes, apparently
in search of backup. Within minutes, backup arrived,
and the inmates were subdued.
  Mr. Guzman correctly points out that, in the event of
a fight between inmates, a prison guard was also able to
exercise authority by shouting verbal commands such as
“knock it off” or “stop.” He is also correct that there is no
evidence in the record that Officer White attempted to
quell the disturbance by uttering any such admonitions.
She did, however, call immediately for help, and, even if
she left her post, it was to secure backup. In this respect,
Officer White may have deviated from standard procedure.
A deviation of this sort, especially when the officer con-
tinued to take steps aimed at stopping the situation, cannot
No. 06-3647                                                  13

be characterized as deliberate indifference. She immedi-
ately called for backup and attempted to secure that
backup. These actions were taken pursuant to her obliga-
tions as an officer overseeing the division, and a trier of
fact certainly could not characterize these steps as de-
liberate indifference. At best, they constituted negligence.


                              B.
  In Count II, Mr. Guzman named as defendants Sheriff
Sheahan, Supt. Brown and Lt. Maeweather and several
other subordinate officers. Sheriff Sheahan was sued in
his official capacity. Although the complaint does not so
indicate explicitly, the district court assumed, and the
parties assume on appeal, that Supt. Brown and Lt.
Maeweather also were sued in their official capacities.5
  An official capacity suit is tantamount to a claim against
the government entity itself. See Wolf-Lillie v. Sonquist, 699
F.2d 864, 870 (7th Cir. 1983); see also Baxter by Baxter v. Vigo
County Sch. Corp., 26 F.3d 728, 734 (7th Cir. 1994) (super-
seded by statute on other grounds). In Baxter by Baxter v.
Vigo County School Corp., 26 F.3d 728 (7th Cir. 1994), we
identified three situations in which a municipality can be
said to have violated the civil rights of an individual
because of its policy: “(1) an express policy that, when
enforced, causes a constitutional deprivation, (2) a wide-
spread practice that, although not authorized by writ-
ten law or express municipal policy, is so permanent and
well settled as to constitute a custom or usage with the


5
  In his appellate brief, Mr. Guzman makes no claim against
the subordinate officers mentioned in Count II. Therefore, no
claim against them is properly before us.
14                                              No. 06-3647

force of law, or (3) an allegation that the constitutional
injury was caused by a person with final policymaking
authority.” Id. at 735 (internal citations and quotation
marks omitted). Municipal policies can be formulated
only by the official charged under state law with the
authority and responsibility for acting as the final
policymaker in the area of governance in question. Pembaur
v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); see also
Rasche v. Vill. of Beecher, 336 F.3d 588, 599 (7th Cir. 2003).
Our case law establishes that Sheriff Sheahan had such
authority with respect to the reclassification of prisoners
in the Cook County Jail. DeGenova v. Sheriff of DuPage
County, 209 F.3d 973, 976 (7th Cir. 2000) (“Illinois sheriffs
have final policymaking authority over jail operations.”).
  In this context, an official capacity claim requires the
plaintiff to show that the municipal action “was taken
with deliberate indifference as to its known or obvious
consequences.” Boyce v. Moore, 314 F.3d 884, 891 (7th Cir.
2002) (internal citations and quotation marks omitted). A
plaintiff “may prove” “deliberate indifference by show-
ing a pattern of violations.” Id. (internal citations and
quotation marks omitted). In order to show deliberate
indifference, the cognizant official must have known of a
substantial risk of serious injury and consciously must have
disregarded that risk. Pierson v. Hartley, 391 F.3d 898, 902
(7th Cir. 2004). Put another way, “a prison official cannot
be found liable . . . unless the official knows of and disre-
gards an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837.
  Mr. Guzman has failed to make a case against Sheriff
Sheahan. As he admits in his reply brief, Mr. Guzman
provides no evidence tending to show that Sheriff Sheahan,
who was the official vested with final policymaking
No. 06-3647                                                15

authority, was aware of the extent of the reclassification
delays. Mr. Guzman concedes that “there is no evidence
that the Sheriff himself had knowledge that classification
and reclassification were being so poorly implemented.”
Appellant’s Reply Br. at 5 n.2. Absent such actual aware-
ness, there can be no finding of deliberate indifference on
his part. Pierson, 391 F.3d at 902 (“deliberate indifference
requires evidence that an official actually knew of a sub-
stantial risk of serious harm and consciously disregarded
it nonetheless”) (emphasis added). A trier of fact sim-
ply could not find that the practice alleged by Mr. Guzman
was a policy formulated or sanctioned by the Sheriff.
   The two other officers mentioned by Mr. Guzman—Supt.
Brown and Lt. Maeweather—are not final policymakers
and therefore cannot formulate, either by action or inaction,
municipal policy. Nor can their action be attributed to the
Sheriff under the doctrine of respondeat superior. There-
fore, if the claim set forth in Count II is brought against
them in their official capacity, it necessarily must fail. As
we have noted earlier, the language of the complaint is
ambiguous with respect to the capacity in which these
subordinate officers are sued, but we have held that a
complaint that does not make clear that it is brought in an
individual capacity will be construed as having been
brought only in an official capacity. Yeksigian v. Nappi, 900
F.2d 101, 104 (7th Cir. 1990) (“In the absence of any express
statement that the parties are being sued in their individual
capacities, an allegation that the defendants were acting
under color of law generally is construed as a suit against
the defendants in their official capacities only.”). Moreover,
Mr. Guzman asserts in his brief that he has brought this
claim against these individuals only in their official capaci-
ties. Appellant’s Br. at 24. Under these circumstances, the
claims against the subordinate officers must fail.
16                                             No. 06-3647

                      Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                                 AFFIRMED

A true Copy:
       Teste:

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




                   USCA-02-C-0072—8-7-07
