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

No. 04-1943
DAVID VELEZ,
                                           Plaintiff-Appellee,
                              v.

MICHAEL JOHNSON and WISCONSIN
COUNTY MUTUAL INSURANCE CORPORATION,
                                     Defendants-Appellants.

                        ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
      No. 02-C-299—Aaron E. Goodstein, Magistrate Judge.
                        ____________
    ARGUED OCTOBER 28, 2004—DECIDED JANUARY 13, 2005
                        ____________




  Before RIPPLE, WOOD, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. In September of 1999, David Velez
was violently assaulted by his cellmate at the Milwaukee
County jail. He filed suit under 42 U.S.C. § 1983 alleging
that Michael Johnson, a deputy sheriff, violated his consti-
tutional rights by failing to adequately respond when Velez,
seeking protection, pushed an emergency call button in his
cell prior to the attack. Velez also alleged a negligence claim
2                                                 No. 04-1943

under Wisconsin law.1 Johnson filed a motion for summary
judgment asserting a qualified immunity defense, but the
district court (Magistrate Aaron E. Goodstein sitting by
consent) denied the request. Johnson, as is his right, has
filed this interlocutory appeal challenging that decision.
  First, a decidedly unpleasant set of facts, which we view
in the light most favorable to Velez. See Saucier v. Katz, 533
U.S. 194 (2001); Finsel v. Cruppenink, 326 F.3d 903 (7th
Cir. 2003). Velez was incarcerated at the jail in July of 1999
as a pretrial detainee on charges of robbery and concealing
identity. He was kept apart from some inmates because he
was a cooperating witness for the state in a double homicide
case. Velez was housed in a cell on the jail’s 5th floor within
its general population. In late August, Velez got a new
cellmate, Roberto Zayas, who was being held on charges of
sexual assault and battery by a prisoner. At the time, Velez
was asked whether he got along with Zayas, and Velez said
that he did not know him. Soon after moving in, Zayas
began acting “funny.” For instance, he talked to himself,
paced around the cell, commented on Velez’s appearance,
and organized Velez’s clothing. This made Velez uncomfort-
able and he requested a transfer. None came.
  The assault occurred on September 5. That night, Johnson
was working on Velez’s floor, along with deputies Allen
Bultman and Chad Haldemann. At around 10:30 p.m.,
Bultman and Haldemann made their initial rounds, while
Johnson remained at the central control station in the hall-
way just outside of the pod home to Velez’s cell. Guards
working at the control center, among other things, are



1
  The complaint also names as a defendant Wisconsin County
Mutual Insurance Corporation, Johnson’s insurer, whose liability
for negligence is purely derivative of Johnson’s. See Wis. Stat.
§ 803.04(2); Rich Prods. Corp. v. Zurich Am. Ins. Co., 293 F.3d
981, 983 (7th Cir. 2002).
No. 04-1943                                                 3

supposed to monitor emergency calls from inmates confined
to their cells. Jail procedures generally require guards to
respond to emergencies by going to the scene, though as far
as we know there are no specific guidelines about responding
to an emergency call button.
  Back to the attack. At the same time that Bultman and
Haldemann were performing their rounds, Zayas placed a
razor blade to Velez’s neck. Velez rather subtly tried to get
the guards’ attention—he didn’t loudly scream for help be-
cause he was afraid of getting his neck slashed—but his
effort was unsuccessful. After the guards departed, Zayas
continued to hold the razor to Velez’s neck. At that point,
Velez pressed the emergency call button hoping for help.
Once again, Velez was careful with his words, telling John-
son that he was “not getting along” with Zayas. Johnson
asked Velez if he had requested a transfer. Velez replied
“yes” but said that there was a conflict. Johnson took no
further action. In particular, he didn’t go to check out the
situation or ask the other guards to do so.
  Zayas then anally raped Velez, bit his back several times,
and cut his neck. Afterward, Velez again hit the emergency
call button and solicited other inmates to do the same. This
time Johnson took action, instructing Bultman and
Haldemann to investigate. When the guards arrived at the
cell, they discovered Velez crying hysterically. Doctors later
confirmed that Velez was raped, bitten, and cut. DNA tests
identified Zayas as the perpetrator.
  Johnson appeals the district court’s denial of his motion
for summary judgment based on qualified immunity. “We
must resolve a qualified immunity issue as early as possible
in the proceedings because it is an ‘immunity from suit
rather than a mere defense to liability.’ ” McCann v.
Mangialardi, 337 F.3d 782, 785 (7th Cir. 2003) (quoting
Saucier, 533 U.S. at 200-01) (emphasis in original omitted).
As set out by the Supreme Court in Saucier, we apply a two-
4                                                No. 04-1943

step approach in evaluating a qualified immunity defense. As
applicable here, we first determine whether, taken in the
light most favorable to Velez, the facts alleged demonstrate
that Johnson violated a constitutional right. Saucier, 533
U.S. at 201. If so, we ask whether that right was clearly
established. Id.
  Velez alleges that Johnson’s failure to adequately respond
to the emergency call button violated his constitutional
rights. The law is clear: “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.” Mayoral
v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001) (citation
omitted). Velez, as we said, was a pretrial detainee at the
time of the assault; therefore, his claim arises under the
Fourteenth Amendment’s Due Process Clause, not the
Eighth Amendment. But as we have noted time and again,
there is “little practical difference between the two stan-
dards.” Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000).
This is so because it would be bizarre indeed to afford greater
protection to a convicted prisoner than to a pretrial de-
tainee. But in asserting a constitutional claim based on a
failure to prevent an assault from another inmate, it is not
enough for Velez to show that Johnson failed to prevent the
attack. Instead, he must demonstrate that Johnson acted
with “deliberate indifference,” i.e., that he was subjectively
aware of, but disregarded, a serious risk to Velez’s health or
safety. Farmer v. Brennan, 511 U.S. 825, 833 (1994);
Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir.), cert.
denied, 124 S. Ct. 531 (2003).
  Viewing the facts in the light most favorable to the
plaintiff, we agree with the district court that Velez laid out
facts that, if true, could support a finding of deliberate
indifference. The crux of Velez’s complaint is that he had a
razor placed to his neck, signaled Johnson for help in the
only way he could, but was effectively ignored and subse-
No. 04-1943                                                5

quently raped. Obviously, being raped while a razor is at
one’s neck is a serious harm.
   Consider the situation—two men, who are strangers to
each other, locked together in a small cell for hours. For
many people on the outside, even sharing a room for one
night with a stranger at a Holiday Inn would be an unpleas-
ant experience. And if that stranger was facing criminal
sexual assault charges, the experience would be much more
than merely unpleasant. And in a jail, the weaker of two
cellmates has no real opportunity to protect himself against
an attack. That’s the situation Velez was in on September
5.
  We believe that Velez has set forth facts establishing that
Johnson knowingly disregarded warnings that a serious
harm could occur. For one thing, Velez pushed an “emer-
gency call button,” a clear indication that an emergency was
at hand. And Johnson had no reason to doubt that there
was an emergency, as Velez had no history of crying wolf or
abusing the call button. Moreover, Velez specifically told
Johnson that he was having a conflict with Zayas, but
Johnson did nothing. And finally, Johnson was instructed
to personally respond to emergencies—and for good reason,
given what happened. If these allegations are true, a jury
could find that Johnson acted with deliberate indifference.
  Johnson argues that he could not have violated Velez’s
constitutional rights because he had no specific awareness
that Zayas had a razor to Velez’s throat or that he was plan-
ning a rape. We disagree. Johnson did not have to know the
specifics of the danger to be culpable. Indeed, accepting
Johnson’s position would essentially reward guards who put
their heads in the sand by making them immune from
suit—the less a guard knows the better. That view is in-
consistent with Farmer. What matters is that Johnson was
aware of a serious risk of harm in some form, be it assault
or the more serious transgression that actually occurred.
And just because Velez did not volunteer detailed informa-
6                                                 No. 04-1943

tion does not mean that Johnson was not made aware of a
serious risk. Indeed, a jury could well find that the vague
nature of Velez’s complaint made it even more incumbent
on Johnson to investigate further. And as it turned out,
Velez could not have provided any more information to
Johnson without risking a slashed neck.
   Velez has also met the second Saucier requirement that
the constitutional right be clearly established. Before lia-
bility will attach, “[t]he contours of that right must be suf-
ficiently clear that a reasonable official would understand
that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Although Velez and
Johnson disagree over how the constitutional right at issue
here should be characterized, we believe it is plainly the right
to be free from deliberate indifference to rape and assault.
There can be no debate that this right was clearly estab-
lished at the time. See Farmer, 511 U.S. at 833 (prison
officials have duty to protect inmates from rape and assault).
  Just because Johnson is not immune from suit, however,
does not mean that a jury will find him liable for violating
Velez’s constitutional rights. What it does mean is that
Velez has set forth facts that, if accepted as true, support a
viable deliberate indifference claim. It is up to a jury to
decide whether Johnson bears some responsibility for the
attack Velez had to endure.
  In addition to appealing the district court’s denial of sum-
mary judgment on qualified immunity, Johnson also seeks
review of its denial on the merits. He contends that there
are no triable issues of fact regarding whether he acted with
deliberate indifference. But at this point we do not have
jurisdiction to consider whether Johnson violated Velez’s
constitutional rights—we may only examine the merits
through the prism proscribed in Saucier, nothing more. See
Johnson v. Jones, 515 U.S. 304, 313 (1995); Anderson v.
Cornejo, 355 F.3d 1021, 1022-23 (7th Cir. 2004); Krein v.
No. 04-1943                                                7

Norris, 309 F.3d 487, 493 (8th Cir. 2002). And because we
believe that the court’s resolution of the qualified immunity
issue was sound, its judgment is AFFIRMED.


A true Copy:
      Teste:

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




                   USCA-02-C-0072—1-13-05
