Ebrahami v. Cook County Department of Corrections et al

Filing 103

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 10/22/2012:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAROUSH EBRAHIME,
Plaintiff,
v.
THOMAS DART, Sheriff of Cook County,
COOK COUNTY, et al.,
Defendants.

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No. 09 C 7825
Magistrate Judge
Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiff has been a pre-trial detainee at Cook County Jail since February 2007. His
amended complaint, brought under 42 U.S.C. §1983, charges the Sheriff of Cook County, and
several individual defendants with various civil rights violations stemming from an attack by a
fellow detainee on October 20, 2009. The defendants have moved for summary judgment on those
claims that allege they were deliberately indifferent to a substantial risk of harm to the plaintiff by
failing to protect him from the attack and failing to respond quickly enough to put a stop to it.
I.
BACKGROUND
A.
Summary Judgment Under Local Rule 56.1
As always, the facts underlying this summary judgment proceeding are drawn from the
parties’ Local Rule 56.1 submissions. “For litigants appearing in the Northern District of Illinois,
the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for
summary judgment.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, –, (7th Cir. 2012). Local Rule

56.1 requires a party seeking summary judgment to include with its motion “a statement of material
facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a
judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d
635, 643 (7th Cir. 2008). Each paragraph must refer to the “affidavits, parts of the record, and other
supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay
Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005).
The party opposing summary judgment must then respond to the movant's statement of
proposed material facts; that response must contain both “a response to each numbered paragraph
in the moving party's statement,” Local Rule 56.1(b)(3)(B), and a separate statement “consisting of
short numbered paragraphs, of any additional facts that require the denial of summary judgment,”
Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response, and each asserted fact,
must be supported with a reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp.,
Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d at 633.
The district court is entitled to enforce strict compliance with its local rules regarding
summary judgment motions. Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir. 2011);
Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir.2010). Responses and facts
that are not set out and appropriately supported in an opponent’s Rule 56.1 response will not be
considered, see Shaffer, 662 F.3d at 442 (court need not consider any fact not contained in the
parties' Rule 56.1 statements); Bay Area Business Council, 423 F.3d at 633 (court properly
disregarded affidavits not referenced in 56.1 submission).

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B.
Facts
On October 20, 2009, plaintiff was a pre-trial detainee housed in Division 10, Tier 2B of the
CCDOC. (Defendants’ Statement of Material Facts (“Def.St.”), ¶ 15; Plaintiff’s Response to Def.
St. (“Pl.Rsp.”), ¶ 15). Officers Jason Bobzin and Thomas Zriny were assigned to the 3 pm-11pm
shift on that tier. (Def.St., ¶ 16; Pl.Rsp., ¶ 16). Sometime between 3 and 4 pm, the plaintiff reported
the theft of some commissary item from his table to Officer Zriny. (Pl.Rsp., ¶17; Plaintiff’s Local
Rule 56.1(b)(3)(B) Statement (Pl.St.”), ¶ 9; Response to Pl.St. (“Def.Rsp”), ¶ 9). The plaintiff
accused another fellow inmate, Corey Young. (Pl.St. ¶ 9; Def.Rsp., ¶ 9). The items didn’t belong
to him; they belonged to two of his associates in the CCDOC, Koh and Diaz. (Pl.St. ¶ 11; Def.Rsp.,
¶ 11). The plaintiff was known to congregate with those two on a regular basis, incuding the day
the items were stolen from their table. (Pl.St. ¶¶ 19-21; Def.Rsp., ¶ 19-21).
Officer Zriny searched Young’s cell while all the inmates were at the gym and discovered
the stolen items. (Pl.St. ¶ 12; Def.Rsp., ¶ 12). After learning of the theft, the shift commander –
Captain Ortega – instructed Sergeant Helms to have Young transferred to another tier. (Pl.St. ¶ 13;
Def.Rsp., ¶ 13). This was a common response when an inmate had committed theft, and the idea
was to avoid any problems like fights between inmates. (Pl.St. ¶ 14; Def.Rsp., ¶ 14).
Sometime between 5 and a little after 6 pm, after all detainees had returned from the gym,
plaintiff was seated at a table in the common area of Tier 2B. (Def.St., ¶ 18; Pl.Rsp., ¶¶ 17-18). By
that time, Young knew that he had been fingered by an inmate for stealing and that he was going to
be punished by being sent to another tier. (Pl.St. ¶ 28; Def.Rsp., ¶ 28). Officer Zriny told Young
to go to his cell to collect his belongings. (Pl.St. ¶ 16; Def.Rsp., ¶ 16). The plaintiff and Officer

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Zriny testified that Officer Zriny was walking behind Young through the common area when Young
suddenly lunged and attacked the plaintiff. (Ebrahime Dep., at 39-40; Zriny Dep., at 71-73); Officer
Bobzin testified that he and Officer Zriny and were still in the interlock1 and Young was unescorted
when he attacked Ebrahime. (Bobzin Dep., at 107). Officer Zriny added that he was about five feet
behind Young and Young was not restrained in any fashion as he walked through the common area.
(Pl.St. ¶ 36; Def.Rsp., ¶ 36).
The plaintiff testified that Young hit him in his head, face, neck, and eyes before he fell
down. (Ebrahime Dep., at 41). He thought Young may have hit him more than five times, but he
didn’t count the blows and he didn’t know how many times Young hit him before he fell to the floor.
(Ebrahime Dep., at 41, 44). After he was on the ground, he didn’t remember much because it was
as if he “went into a coma somehow.” (Ebrahime Dep., at 43). He could not say how long the
beating lasted. (Ebrahime Dep., at 44; see Pl.St., ¶¶ 37-38; Def.Rsp., ¶¶ 37-38). The defendants also
do not say how long the attack lasted before correction officers stepped in. They simply assert that
“[s]everal officers stepped in to stop the attack, including [Officer] Zriny, and a call was
immediately made for more officers to assist. (Def.St., ¶ 33; Pl.Rsp., ¶ 33). Those additional
officers – ten to fifteen in number – arrived a minute or two later. (Def.St., ¶ 33; Pl.Rsp., ¶ 33).
Prior to this incident, Officer Zriny knew Young to be a compliant inmate, and had no
knowledge of any violent or aggressive tendencies by Young. (Def.St., ¶ 22; Pl.Rsp., ¶ 22). Plaintiff
testified that he had known Young approximately 10 days at that time, and prior to this incident he
did not have any problems with Young. (Def.St., ¶ 23; Pl.Rsp., ¶ 23). Young had never threatened

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Officer Zriny testified that the interlock door was close to where the plaintiff was seated: “the door is
actually right there.” (Zriny Dep., at 73).

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the plaintiff with physical violence prior to the attack. (Def.St., ¶ 24; Pl.Rsp., ¶ 24). Plaintiff
testified that he did not know Young would attack him. It happened “all of the sudden” and it was
“shocking for him.” (Def.St., ¶¶ 27-29; Pl.Rsp., ¶¶ 27-29). Plaintiff, however, disputes that Officers
Zriny and Bobzin didn’t know Young would attack him because he had been the one that accused
Young of stealing.
The CCDOC has an established grievance procedure for detainees to follow to redress their
complaints short of federal litigation. Part of the CCDOC administrative grievance procedure
includes an appeal process where detainees are required to appeal a response to their grievance
within 14 days of their receipt of the grievance response. According to the defendants, a thorough
review of the CCDOC grievance records reveals that plaintiff submitted one grievance between
October 20, 2009, and December 16, 2009. That grievance was dated November 16, 2009, was
received by CCDOC staff on December 3rd, and was assigned a control # 2009x2509. Plaintiff
received a written response on December 8 – he signed a receipt for it – which informed him that
his matter was being referred to the division physician. Immediately below the receipt signature line
it says: Request for Appeal APPEALS MUST BE MADE WITHIN 14 DAYS OF THE DATE THE
DETAINEE RECEIVED THE RESPONSE. (Def.St., ¶¶ 37-46; Pl.Rsp., ¶¶ 37-46). The plaintiff
concedes that he did not appeal the response to this grievance. (Def.St., ¶ 47; PlRsp., ¶ 47). But he
contends that grievance # 2009x2509 doesn’t deal with the attack, but with medical treatment for
back pain he suffered as a result of the attack. (Pl.St., ¶6; Def.Rsp., ¶ 6). The plaintiff also claims
that he filed two other grievances that did pertain to the attack, the first on October 21, 2009, and
the second on October 23, 2009. He says he submitted them to a social worker – which is proper
procedure – but didn’t remember which one. He has never received a response to either of these

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grievances. The defendant disputes that the plaintiff ever properly filed the two grievances because
at his deposition, the plaintiff could not recall which social worker he gave them to. (Pl.St., ¶¶ 3-8;
Pl.Exs. 2, 3; Def.Rsp., ¶¶ 3-8).
II.
ANALYSIS
A.
Summary Judgment
Summary judgment is appropriate only when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). On summary judgment, a court may not weigh the evidence or decide which
inferences should be drawn from the facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Still, “a factual dispute is ‘genuine’ only if a reasonable jury could find for either party.”
Rosario v. Brawn, 670 F.3d 816, 820 (7th Cir. 2012)(citation omitted). To survive summary
judgment, a non-moving party must “show through specific evidence that a triable issue of fact
remains on issues for which the nonmovant bears the burden of proof at trial.” Knight v. Wiseman,
590 F.3d 458, 463-64 (7th Cir. 2009)(citation omitted). The evidence the nonmovant submits in
support of his position must be sufficiently strong that a jury could reasonably find for the
nonmovant. Id.
B.
Exhaustion of Administrative Remedies
The defendants argue that the plaintiff failed to exhaust his administrative remedies prior to
filing his lawsuit. The Prison Litigation Reform Act (“PLRA”) mandates that “no action shall be
brought with respect to prison conditions under 42 U.S.C. § 1983, or any other federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. §1997(e). The PLRA was a response to the fact that
prisoner litigation is an outsized share of the filings in federal district court. Woodford v. Ngo, 548
U.S. 81, 94, n. 4 (2006); Jones v. Bock, 549 U.S. 199, 203 (2007). While most of these cases are
meritless or frivolous, it is nonetheless important “that the flood of nonmeritorious claims does not
submerge and effectively preclude consideration of the allegations with merit.” Id. at 203.
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the
exercise of their responsibilities before being haled into court. This has the potential to reduce the
number of inmate suits, and also to improve the quality of suits that are filed by producing a useful
administrative record.” Id. at 203-204.
The Seventh Circuit has taken a “strict compliance approach to exhaustion,” meaning that
the prisoner must properly use the prison's grievance system. Santiago v. Anderson, __ F.3d –, –,
2012 WL 3164293, *5 (7th Cir. 2012); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006). But the
defendants bear the burden of proving nonexhaustion, and “they must do more than point to a lack
of evidence in the record; rather, they must establish affirmatively that the evidence is so one-sided
that no reasonable fact finder could find that the plaintiff was prevented from exhausting his
administrative remedies.” Santiago, – F.3d at –, 2012 WL 3164293, *5; Branham v. Snow, 392 F.3d
896, 906–07 (7th Cir.2004).
That’s a problem for the defendants here. In Lewis v. Washington, 300 F.3d 829, 833 (7th
Cir. 2002), the Seventh Circuit followed the Fifth and the Eight Circuits in deeming administrative
remedies exhausted when prison officials fail to respond to inmate grievances because those
remedies had become “unavailable.” 300 F.3d at 833 (citing Powe v. Ennis, 177 F.3d 393, 394 (5th
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Cir.1999); Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.1998) (per curiam); Foulk v. Charrier,
262 F.3d 687, 698 (8th Cir.2001); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001). The court
“refused to interpret the PLRA so narrowly as to permit [prison officials] to exploit the exhaustion
requirement through indefinite delay in responding to grievances.” Lewis, 300 F.3d at 833(quotation
omitted). So, if prison officials fail to respond to a properly filed grievance, the inmate is considered
to have exhausted his remedies and may file suit. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006); Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005). The question here is whether the
two additional grievances were properly filed.
The defendants say they were not properly filed because the plaintiff could not recall the
name of the social worker he submitted the grievances to. The plaintiff explained that the social
worker assignments changed frequently. (Plaintiff’s Dep., at 111). But that doesn’t mean he didn’t
file them. See White v. Bass, 2011 WL 1303393, *5 (N.D.Ill. 2011)(“Notably, Defendants do not
provide an affidavit from any correctional officer at the prison or any other type of evidence to
attempt to refute that the prison dropped the ball on Plaintiff's grievance.”). And if that’s all the
defendants can point to, they have not carried their burden of having demonstrated the plaintiff did
not exhaust his administrative remedies. Santiago, – F.3d at –, 2012 WL 3164293, *5; Branham
v. Snow, 392 F.3d 896, 906–07 (7th Cir.2004). The issue becomes a matter of credibility, which
cannot be resolved in a summary judgment proceeding. O'Leary v. Accretive Health, Inc., 657 F.3d
625, 630 (7th Cir. 2011).
In their reply brief, defendants claim that, as part of the administrative procedure in effect
at the time the two grievances were filed, a social worker would sign submitted grievances and date
them when received. But this is not a point raised in the defendants’ response to the plaintiff’s
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statement of additional facts. Thus, it is not properly in the record and need not be considered.
Shaffer, 662 F.3d at 442 (court need not consider any fact not contained in the parties' Rule 56.1
statements); Bay Area Business Council., 423 F.3d at 633 (court properly disregarded affidavits not
referenced in 56.1 submission). Moreover, there is no evidence to suggest that this was, in fact, the
procedure. There is nothing more than a statement from an attorney in the defendants’ brief and that
is not evidence. Woolard v. Woolard, 547 F.3d 755, 760 (7th Cir.2008); United States v. Stevens,
500 F.3d 625, 628-629 (7th Cir.2007); Ner Tamid Congregation of North Town v. Krivoruchko, 620
F.Supp.2d 924, 928 (N.D.Ill. 2009)(collecting cases). And finally, although it’s not an argument the
plaintiff had an opportunity to make, one of the two grievances – from October 23, 2009 – was
signed as received on October 27th. (Pl.Ex. 3).
Defendants also attempt to avoid the holdings in Dole and Brengettcy by arguing that the
plaintiffs in those cases followed up on their grievances when they had not heard back in the
designated time period. The plaintiff in this case, argues that the defendants, have presented no
evidence that he did the same. He may well have followed up, but as the defendants’ argument
comes in their reply brief, he has had no opportunity to respond. Beyond that, neither Dole nor
Brengettcy set forth a rule that an inmate must follow up, in some unspecified fashion, on grievances
that fall on deaf ears. Courts of this district certainly have not read the cases in that fashion. See,
e.g., Smith v. Hardy ,2012 WL 2127488, *4 (N.D.Ill. 2012)(“Here, there is nothing in the record to
suggest that Plaintiff should have taken additional steps or contacted another correctional official
once he filed his three unanswered grievances. Thus, the record presents a genuine dispute as to the
material fact of whether Plaintiff submitted the grievances as he alleged, and if so, whether the
grievances went unanswered.”). And, it should be noted that the “follow up” in Brengettcy was the

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inmate filing repeated grievances regarding the same event. 423 F.3d at 677. The plaintiff here may
have filed as many as three. But, even though there may be a genuine issue of material fact on the
question of exhaustion of administrative remedies, it does not matter because the plaintiff has not
shown that there is a triable issue of fact on the question of whether the defendants were deliberately
indifferent.
C.
Deliberate Indifference
The defendants argue that the plaintiff cannot establish that there is a genuine issue of fact
as to whether they were deliberately indifferent to the attack. In this case, there are two components
to the deliberate indifference calculus: preventing the attack in the first place and stopping it before
it went on too long. The defendants submit that plaintiff, himself, did not know or apprehend that
the attack was going to occur, and therefore he cannot show that the defendants knew of a
substantial risk of the attack. And, they maintain that, once Young jumped the plaintiff, the guards’
response was reasonable.
To prove deliberate indifference, the plaintiff needs to show that the defendants knew of a
substantial risk of serious injury to him and failed to protect him from that danger. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Shields v. Dart, 664 F.3d 178, 181 (7th Cir. 2011). While there
is always a general risk of violence at a place like the Cook County Jail, that is not enough to
establish knowledge of a substantial risk of harm. Shields, 664 F.3d at 181; Dale v. Poston, 548
F.3d 563, 568 (7th Cir.2008). Were that enough, prison officials would, in effect, become strictly
liable for all violence in the institution. And that, of course, is not the law. A plaintiff must show a

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tangible threat to his safety or well-being, Grieveson v. Anderson, 538 F.3d 763, 777 (7th Cir.2008),
that the defendants were subjectively aware of the risk, yet failed to take reasonable measures to
prevent it. Borello v. Allison, 446 F.3d 742, 747 (7th Cir.2006);Hunt ex rel. Chiovari v. Dart, 754
F. Supp. 2d 962 (N.D. Ill. 2010).2
For the plaintiff, the threat here was the fact that he had accused Young of stealing, and when
that accusation proved to be true, Young was told he’d be transferred to another tier, thereby giving
rise to a threat the defendants should have anticipated and taken steps to prevent from being acted
on. But plaintiff, himself, did not feel there was a threat – the attack came as a complete surprise
to him – and Young was not known to the guards to be a troublesome inmate.3 Moreover, Young

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The same standard applies for pretrial detainees and incarcerated individuals, though pursuant to the
Fourteenth Amendment rather than the Eighth Amendment. Estate of Miller, ex rel. Bertram v. Tobiasz, 680
F.3d 984, 989 (7th Cir. 2012). Accordingly, although plaintiff was a pretrial detainee, cases dealing with
incarcerated convicts are cited in this opinion as well.
3

Compare Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003) (plaintiff's Fourteenth Amendment complaint
that the officials acted objectively and subjectively unreasonably to the risk of inmate-on-inmate violence
survived dismissal because the officers knew they were guarding a violent schizophrenic and they took
consecutive breaks and played computer games at the time of the decedent inmate's murder); Adames v.
Perez, 331 F.3d 508 (5th Cir. 2003) (plaintiff attempted to show that the officers should have been aware of
the risk that he would be harmed by another inmate because the officers failed to follow the prison safety
procedure by checking each cell door every half hour and because prison officials knew that plaintiff was
classified as a “potential victim”); Barreto v. County of Suffolk, 762 F. Supp. 2d 482 (E.D.N.Y. 2010)
(prisoner allowed to proceed on his § 1983 claim that, as a result of defendant county's policy of not
separating violent and non-violent inmates, he was attacked by an inmate with a known history of attacking
fellow inmates. Refusing to segregate such violent prisoners suggests deliberate indifference to inmate safety.
Peart v. Seneca County, 808 F. Supp. 2d 1028 (N.D. Ohio 2011) (Defendants not entitled to summary
judgment on detainee's claim that, because they failed to follow the jail's classification protocol—which relied
on criteria like an inmate's prisoner convictions and history of violence—he sustained serious head injuries
from an unprovoked assault by an inmate with violent propensities). Cf., Anderson v. Wilkinson, 440 Fed.
Appx. 379 (5th Cir. 2011) (Reversing and vacating judgment for prisoner who had boiling water thrown
directly in his face by another inmate. The lower court found defendant warden liable on the grounds that by
making the microwave available to inmates during sleeping times, without adequate monitoring or security,
he was deliberately indifferent to the serious risk of hot-water-throwing attacks. However, the evidence
adduced at trial failed to show that hot-water-throwing attacks were “longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past.”).

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did not know plaintiff reported him; he only knew that plaintiff’s associates had reported their items
stolen. While there may have been a set of circumstances allowing Young to make an educated
guess that plaintiff reported him on behalf of his friends, the defendants would still have to piece all
that together and then go the extra step of assuming that Young – described as a “compliant” inmate
– would attack the plaintiff. Seventh Circuit precedent requires quite a bit more than a set of
circumstances giving rise to a potential threat to meet the definition of deliberate indifference.
“A prisoner normally proves actual knowledge of impending harm by showing that he
complained to officials about a specific threat to his safety.” McGill v. Duckworth, 944 F.2d 344,
349 (7th Cir.1991); Morris v. Ley, 331 Fed.Appx. 417, 419, 2009 WL 1784081, *2 (7th Cir. 2009).
Even in cases where there are actual, albeit vague, threats, the Seventh Circuit has determined that
it is not sufficient to demonstrate guards were aware of a substantial risk of serious harm. See
Whaley v. Erickson, 339 Fed.Appx. 619, 622, 2009 WL 2222084, *2 (7th Cir. 2009)(inmate had
conversation with defendant in which he told him his assailant was “making threats”); Dale v.
Poston, 548 F.3d 563, 569 (7th Cir. 2008)(vague statements that inmates were “pressuring” him and
“asking questions” were simply inadequate to alert the officers to the fact that there was a true threat
at play); Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir.2008) (holding that an inmate who “told
jail officials only that he was afraid and that he wanted to be moved” failed to put those officials on
notice of an actionable threat).
One more example: where there the potential for an assault was even more apparent is that
in Shields or Grieveson because it was bolstered by a history of attacks, is Yeadon v. Lappin, 423
Fed.Appx. 627, 2011 WL 2023428 (7th Cir. 2011). In Yeadon, an inmate became the target for
assaults by white supremacists after assisting the government with the prosecution of one of their
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members. Prison officials reacted to the assaults by either placing the inmate in protective housing
or transferring him to another facility. Things quieted down until a television show was broadcast
about the case. The inmate had requested a move to a facility without cable television where the
program would not be seen, but instead he was moved to a notoriously dangerous prison filled with
gang members. He was immediately assaulted and was placed in special housing and then
transferred two more times. The Seventh Circuit determined that the authorities were not
deliberately indifferent because they had not been aware of any threats to the inmate and had taken
corrective measures swiftly each time an assault had occurred. “The fact that officials could have
taken a different approach does not make their chosen actions unreasonable.” Yeadon v. Lappin, 423
Fed.Appx. 627, 630, 2011 WL 2023428, *3 (7th Cir. 2011)(citing Dale, 548 F.3d at 569–70).
Here, the defendants’ level of awareness does not approach that in Yeadon nor was there a
threat of harm remotely comparable to that in Yeadon. There was nothing to suggest that Young
though it was the plaintiff who had turned him in. He and the plaintiff had not had any previous
beefs. And the defendants were in the process of taking action to perhaps head off any potential
problems that might have occurred due to Young’s theft. The fact that they could have escorted
Young to his cell while he was restrained does not mean the action they did take was unreasonable.
Based on the parties Local Rule 56.1 submissions, the attack came as a surprise to everyone, with
the exception of Young, of course.
The plaintiff also has a problem with how long it took the guards to intervene once Young
attacked him. The plaintiff himself does not know how much time passed – he thought he had been
hit perhaps five time before Officer Zriny stepped in. Officer Zriny called for backup which arrived,

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in force, within a minute or two. Under Seventh Circuit jurisprudence, that’s a reasonable response
– in fact, it’s a rather rapid response.
Correctional officers who are present during a violent altercation between inmates are not
deliberately indifferent if they intervene with a due regard for their safety. Shields v. Dart, 664 F.3d
178, 181 (7th Cir. 2011). They need not respond on their own when that response would put them
in significant jeopardy. Shields, 664 F.3d at 181; Guzman v. Sheahan, 495 F.3d 852, 858 (7th
Cir.2007). Here, Officer Zriny did respond on his own and, assuming Young had delivered as many
as five blows to the plaintiff, he did so within a matter of seconds. Moreover, he summoned backup,
which arrived in one or two minutes.
In Shields, the guard did not step in or even command the inmate to cease the attack, but
called for backup. That backup took as long as twenty minutes to arrive but, while the Seventh
Circuit found the response time “troubling,” it was nevertheless “insufficient to constitute deliberate
indifference.” 664 F.3d at 182. Along these lines, the guard in Guzman did not intervene when the
inmate was hit and then beaten with a broom handle. Instead, she left her post for about three
minutes in search of backup, which arrived minutes later to subdue the inmates. 495 F.3d at 853-54,
58-59. This was not deliberate indifference, and summary judgment was sustained in favor of the
defendants. Unlike those cases, here, a guard intervened within a matter of seconds and summoned
help, which arrived in one or two minutes. The response – whether one or five or ten blows had
been delivered – was swifter than in either Shields or Guzman.4

4

Notably, in Shields and Guzman, the officers who witnessed the attacks were female. But there cannot be
a different Eighth Amendment standard applied to responses to attacks depending on the gender of the guard,
and we do not read the Seventh Circuit cases to suggest anything of the sort. In any event, this is not an
(continued...)

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Plaintiff submits that because Officers Zriny and Bobzin testified differently as to where
Zriny was at the time – Bobzin said they were both in the interlock and Zriny said he was five feet
behind Young – this alone demonstrates that there are genuine issues of fact as to the response to
Young’s attack on the plaintiff. Recall, however, that the plaintiff himself testified that Zriny was
walking behind Young, and that the interlock was right near where the attack occurred. The point
being that, in any case, the response was swifter than in either Shields or Guzman.
In this regard, the plaintiff seeks to compare this case to Mayoral v. Sheahan, 245 F.3d 934
(7th Cir. 2001), where the stories of two corrections officer didn’t match. But in Mayoral, there was
an obvious threat that was known to the officers. The inmate specifically requested protective
custody. Moreover, one of the corrections officers observed the inmates being rowdy and seemingly
intoxicated. There was, the court found, a significant risk of harm to inmates. And, the response was
clearly unreasonable: one of the two officers told one of the inmates to take control of “his guys,”
thereby abdicating his responsibility and putting the fate of the inmates in the hands of one of the
inmates. 245 F.3d at 940. In this case, as already discussed, the officers had no knowledge of a
threat to the plaintiff and were, in fact, taking steps to head off any trouble that might develop in the
wake of Young’s theft. And, most importantly, no matter who is credited as to Zriny’s location, he
was steps away and the response to Young’s attack was reasonable.
Could the officers here have done more? Maybe, but that’s not the standard the Seventh
Circuit has set out for their response. The officers rather easily meet the benchmark drawn from

4

(...continued)
argument the plaintiff raises as the plaintiff completely ignores the circumstances and holdings in both Shields
and Guzman.

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cases like Shields and Guzman, where the response time was measured not in a few seconds but in
several minutes. Accordingly, the defendants are entitled to summary judgment on the plaintiff’s
claims they were deliberately indifferent to a substantial risk of harm to him by failing to protect him
from the attack and failing to respond quickly enough to put a stop to it.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment [#82] is
GRANTED.

ENTERED:_____________________________________
UNITED STATES MAGISTRATE JUDGE
DATE: 10/22/12

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