                             In the

    United States Court of Appeals
                  For the Seventh Circuit
                    ____________________
No. 15-3052
JAIRO E. RAMOS,
                                               Plaintiff-Appellant,

                                v.

GARY HAMBLIN, et al.,
                                            Defendants-Appellees.
                    ____________________

         Appeal from the United States District Court for the
                   Western District of Wisconsin.
    No. 1:13-cv-00044-WCG — William C. Griesbach, Chief Judge.
                    ____________________

  ARGUED SEPTEMBER 9, 2016 — DECIDED OCTOBER 24, 2016
                ____________________

   Before POSNER, MANION, and WILLIAMS, Circuit Judges.
    POSNER, Circuit Judge. The plaintiff, who is appealing the
dismissal, resulting from the judge’s grant of the defendants’
motion for summary judgment, of the plaintiff’s suit under
42 U.S.C. § 1983 alleging punishment that violated the
Eighth Amendment, was at the time relevant to this suit a
prisoner at Stanley Correctional Institution, a Wisconsin me-
dium-security prison, serving a long prison term for homi-
cide. In the fourteenth year of his imprisonment (though on-
2                                                 No. 15-3052


ly his fifth year at Stanley), he was placed in a cell with a
prisoner in his second year at Stanley named DaSilva, who
one night twelve days later sexually assaulted the plaintiff in
the cell. DaSilva was in prison for having sexually assaulted
a woman. Both prisoners were classified as “medium securi-
ty” inmates, meaning that they were believed to be less like-
ly to engage in violent or otherwise disruptive behavior than
maximum-security inmates, though DaSilva in his two years
at Stanley had committed eight violations of the prison’s
rules, including fighting, lying, theft, and use of intoxi-
cants—but no sexual offenses.
    The plaintiff promptly reported DaSilva’s sexual assault
of him to a correctional officer, who notified her superiors,
who conducted a thorough investigation that resulted in a
criminal charge being lodged against DaSilva, also a disci-
plinary charge against him for disobeying prison regulations
regarding sexual assault, and finally an official notice that
the plaintiff and DaSilva were not to share a cell.
    The complaint charges the defendants, who are supervi-
sory personnel at Stanley, including its warden, with delib-
erate indifference to the danger of the plaintiff’s being sex-
ually assaulted by DaSilva. All prisoners at Stanley have a
cellmate, randomly assigned in the first instance, and the
plaintiff claims that the defendants were aware of, but did
nothing to eliminate, the danger of placing DaSilva in the
same cell with him. Not only had DaSilva committed a pre-
vious sexual assault, albeit against a woman, but in addition
the plaintiff claims to have been perceived as homosexual,
which may have made him more likely to be assaulted, sex-
ually or otherwise. More broadly the plaintiff attacks the
practice of random assignment of cellmates. Presumably his
No. 15-3052                                                  3


previous cellmate had been transferred to a different cell (or
different prison, or had completed his prison term and been
released), leaving a gap that the prison filled with a random
assignment, namely of DaSilva.
    A 2003 federal statute, the Prison Rape Elimination Act,
42 U.S.C. §§ 15601–15609, as the name implies, and corre-
sponding rules of the Wisconsin Department of Corrections,
Executive Directives 16A and 72, make the prevention of
prison rape a priority concern of prison administrators, just
as the prevention of suicide by newly jailed persons is a pri-
ority concern of jail administrators. See, e.g., Belbachir v.
County of McHenry, 726 F.3d 975, 980–82 (7th Cir. 2013). Thus
each new inmate in a Wisconsin prison is given a “Sexual
Abuse/Assault Prevention and Intervention” handbook,
which among other things directs him to inform prison staff
about any danger he perceives of being assaulted or other-
wise abused. The handbook states:
      You should feel free to discuss your concerns about
      sexual misconduct with any staff member. Some
      staff, like psychologists, are specially trained to
      help you deal with problems in this area. If you are
      in an emergency situation, approach any staff
      member. ... Even if you have not been assaulted or
      abused, but are in fear for your safety, you should
      report your concern to staff.
    The plaintiff claims that he was perceived by inmates and
staff alike as homosexual, and that this perception should
have alerted the staff to the need to separate him from his
new cellmate, a convicted rapist. The record indicates that
Ramos may have been homosexual or bisexual but re-
nounced that identity upon a religious conversion. Yet the
principal evidence that he was perceived as being homosex-
4                                                 No. 15-3052


ual was that prison staff had asked him whether he was, but
there is no indication that they told any other prisoner that
he was homosexual. It made sense for the staff to question
Ramos about his sexual orientation, given the vulnerability
of homosexual prisoners to rape by other prisoners, whether
homosexual prisoners or heterosexual ones seeking to sub-
stitute homosexual sex in a setting in which heterosexual sex
is precluded—to engage, in other words, in what is called
“opportunistic homosexuality.” See National Center for
Transgender Equality et al., “Preventing the Sexual Abuse of
Lesbian, Gay, Bisexual, Transgender, and Intersex People in
Correctional     Settings”      3–6    (May     10,    2010),
www.prearesourcecenter.org/sites/default/files/library/8-pre
ventingthesexualabuseoflgbtipeopleincorrectionalsettings_0.
pdf (visited October 21, 2016).
    There is nothing to indicate that when asked by staff
whether he was homosexual the plaintiff said he was, or ex-
pressed any concern about being vulnerable to sexual as-
sault; and in these circumstances the staff would have been
opening themselves to suit had they declared him a homo-
sexual and taken action as a result, though had they believed
him to be perceived by other prisoners to be homosexual it
might have been wise to take steps to protect him from the
likes of a DaSilva. See Jody Marksamer & Harper Jean Tobin,
National Center for Transgender Equality, “Standing with
LGBT Prisoners,” www.transequality.org/sites/default/files/
docs/resources/JailPrisons_Resource_FINAL.pdf (also visit-
ed October 21, 2016). But so far as appears, the staff was un-
aware that the plaintiff was perceived by other prisoners to
be homosexual; nor is there any evidence of such a percep-
tion, apart from the plaintiff’s unsupported claim.
No. 15-3052                                                      5


    It’s not clear how vulnerable the plaintiff was to a sexual
assault. It’s true that he isn’t tall—he’s 5’6” (DaSilva is 5’10”);
but neither is he a mouse, for he had been, after all, convict-
ed of reckless homicide. And there is no indication that he
had any anxieties about DaSilva before the rape. Nor had
DaSilva committed any sexual offenses in prison, and as far
as appears he had told no one—including the plaintiff—that
he had raped anyone, let alone that he wanted and was
planning to rape an inmate.
     In these circumstances we can’t see how the defendants,
who as supervisory employees of the prison would have
limited interactions with inmates, can be thought to have
been deliberately indifferent to the possibility that the plain-
tiff would be raped—that is, would know there was a non-
trivial danger of that happening, could prevent it without
danger or other undue cost to themselves, but instead decid-
ed to do nothing.
    Had the plaintiff any fear of DaSilva, it behooved him to
ask the prison staff to transfer him to another cell. If he ei-
ther is a homosexual or, as he contends, felt vulnerable be-
cause he was believed by prison staff and prisoners to be
one, it behooved him to complain to prison staff, consistently
with the advice in the prison handbook. He didn’t do that.
He argues that random assignment of cellmates is deliberate
indifference per se to prisoners’ safety. But the only alterna-
tive he suggests (for he does not argue that all prison in-
mates should be in solitary confinement or even that he
should have been) is that sex offenders never be placed in
cells with any inmate who for whatever reason is at a
heightened risk of being sexually assaulted. Given the num-
ber of characteristics that could trigger such a heightened
6                                                    No. 15-3052


risk, sex offenders would probably have to be either placed
in solitary confinement or given cellmates who were also sex
offenders. The feasibility of such a solution can be ques-
tioned; but more important is the fact that the plaintiff pre-
sents no evidence that it would promote prison safety more
than the handbook, which emphasizes a prisoner’s right to
complain about danger posed to him by a cellmate. Apropos
is our comment in Billman v. Indiana Dept. of Corrections, 56
F.3d 785, 788 (7th Cir. 1995), that if prison staff “place a pris-
oner in a cell that has a cobra, but they do not know that
there is a cobra there (or even that there is a high probability
that there is a cobra there), they are not guilty of deliberate
indifference even if they should have known about the risk,
that is, even if they were negligent—even grossly negligent
or even reckless in the tort sense—in failing to know.” We
can’t even say that administrators of the Stanley Correctional
Institution were negligent or reckless in erecting this policy.
The line officers who assigned Ramos and DaSilva to the
same cell may have been negligent or reckless, but he hasn’t
sued them—just the administrators.
    In short, the plaintiff has no case, and so his suit was
rightly dismissed by the district court.
                                                       AFFIRMED
