Godfrey v. Shrestha et al

Filing 65

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 2/16/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies defendants' motion for summary judgment [dkt. no. 44]. The final pretrial order, final pretrial conference, and trial dates previously set by the Court remain in effect. The case is set for a status hearing on February 24, 2017 at 9:15 a.m. to discuss the possibility of settlement. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAWN GODFREY,
Plaintiff,
v.
A. SHRESTHA and
COOK COUNTY, ILLINOIS,
Defendants.

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Case No. 15 C 11284

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Dawn Godfrey, a former pretrial detainee at the Cook County Jail, has sued
correctional officer Amita Shrestha and Cook County under 42 U.S.C. § 1983. Godfrey
alleges that Shrestha failed to protect her from being attacked by three detainees in
violation of the Fourteenth Amendment's Due Process Clause. 1 U.S. Const. amend.
XIV § 2. Shrestha denies Godfrey's claim, arguing that Godfrey cannot establish that
she acted with deliberate indifference. Defendants have moved for summary judgment.
For the reasons stated below, the Court denies defendants' motion.
Background
The Court takes the following facts from the parties' briefs and exhibits on
summary judgment. Where facts are in dispute, the Court takes them in the light most
favorable to Godfrey, the non-moving party.

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Godfrey has sued Cook County as a potential indemnitor in the event the Sheriff does
not indemnify Godfrey for a judgment imposed upon her. See Carver v. Sheriff of
LaSalle Cty., 324 F.3d 947 (7th Cir. 2003).

Godfrey was a detainee at the Cook County Jail from January 25, 2015 until late
March 2015. The division of the jail where Godfrey was housed has three floors and
two living units (tiers) on each floor. When not confined to their cells, detainees are
permitted to be in their floor's dayroom, dayroom bathroom, or shower area. On the
evening of February 19, 2015, Godfrey was attacked in the dayroom by three other
female detainees, Goodman, Betton, and Brownlee.
At some point before the evening of February 19, 2015, either that afternoon or
the day before, Godfrey says she had a verbal confrontation with Goodman and Betton.
She contends that in that confrontation, Goodman and Betton threatened her and tried
to attack her. Godfrey further contends that on the evening of February 19, 2015, she
had another confrontation with Goodman and Betton. She testified during her
deposition that she was in the dayroom playing games with other detainees when
Goodman, Betton, and another inmate, Brownlee, began to throw ice at her. Godfrey
says she knocked on the interlock glass that separated the dayroom and the monitor
room where correctional officer Shrestha was stationed. When Shrestha came into the
dayroom, Godfrey says, she immediately informed Shrestha that Goodman, Brownlee,
and Betton were throwing ice at her and that she had a confrontation with Goodman
and Betton on a prior occasion in which they tried to attack her. Godfrey alleges she
told Shrestha that the other detainees were threatening her and that she needed help.
Shrestha testifies that she knew that Brownlee had a tendency of causing trouble
in the facility, including a history of getting in altercations with other detainees. Despite
protocol dictating otherwise, Shrestha did not remove Godfrey from the other detainees.
Shrestha says she observed Goodman, Brownlee, and Betton arguing and gave them

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verbal commands to stop, but they did not comply. Shrestha says she then called a 1010 over her radio—a signal that there is a fight in progress. Shrestha says she then
ordered the detainees to stand outside their respective cell doors.
The detainees followed Shrestha's instructions and made their way to their cells.
On the walk down the hallway to the cells, Godfrey contends, Goodman, Brownlee, and
Betton began shouting at her. Goodman, Brownlee, and Betton then attacked Godfrey.
Godfrey contends that the three detainees hit her in the face, body, stomach, and head.
She says that she suffered an orbital fracture and sustained lasting nerve damage in
her right eye.
Discussion
When considering a motion for summary judgment, the Court construes "all facts
and reasonable inferences in the light most favorable to the non-moving party." Apex
Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013). The Court
does not "weigh evidence or determine the credibility of a witness's testimony," as those
determinations are reserved for the finder of fact. O'Leary v. Accretive Health, Inc., 657
F.3d 625, 630 (7th Cir. 2011) (internal quotation marks omitted). Summary judgment is
proper "if 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). A genuine
dispute of material fact exists "if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
A.

Deliberate indifference
A section 1983 claim by a pretrial detainee alleging that jail officials failed to

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protect her from harm is analyzed under the Fourteenth Amendment's Due Process
Clause. U.S. Const. amend. XIV, § 2; Butera v. Cottey, 285 F.3d 601, 605 (7th Cir.
2002). A jail official (such as a correctional officer) is liable under section 1983 for
failing to protect a detainee "only when [she] is deliberately indifferent to a substantial
risk of serious harm" to the detainee. Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir.
2004). "A finding of deliberate indifference requires a showing that the [correctional
officer] was aware of a substantial risk of serious injury to [the detainee] but
nevertheless failed to take appropriate steps to protect [the detainee] from a known
danger." Butera, 285 F.3d at 605. Thus, to show that a jail official acted with deliberate
indifference, an injured party must show that 1) she was exposed to a substantial risk of
serious harm, 2) the jail official had actual knowledge of the threat, and 3) the jail official
acted unreasonably in light of the known risk. Gevas v. McLaughlin, 798 F.3d 475, 480
(7th Cir. 2015); Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007).
Shrestha contends that Godfrey cannot show that she was exposed to a
substantial risk of serious harm, that Shrestha had knowledge of the risk, or that
Shrestha acted unreasonably. Shrestha also argues in her reply brief that she is
entitled to summary judgment on the basis of qualified immunity.
1.

Substantial risk of serious harm

"A substantial risk of serious harm is one in which the risk is so great that it is
almost certain to materialize if nothing is done." Wilson v. Ryker, 451 F. App'x 588, 589
(7th Cir. 2011) (internal quotation marks omitted). "[A] beating suffered at the hands of
a fellow detainee . . . clearly constitutes serious harm . . . ." Brown v. Budz, 398 F.3d
904, 910-11 (7th Cir. 2005) (internal quotation marks omitted) (Eighth Amendment

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case).
Shrestha argues that Godfrey "cannot point to any evidence nor has she cited to
any authority that throwing ice would present a sufficiently serious risk, or that throwing
ice inevitably leads to a physical attack." Defs.' Reply at 3. Were Godfrey contending
simply that detainees throwing ice at her posed a substantial risk of serious harm, her
section 1983 claim likely would fail. But that is not Godfrey's contention. Rather, she
testified that the other three detainees threatened her five minutes before they attacked
her. She also testified that she had a confrontation with two of the three detainees the
day before, saying, "It was her and that other girl threatening me, getting loud, trying to
attack me." Def.'s Ex. C (Godfrey Dep.) at 62:5-6. A reasonable jury could infer from
Godfrey's version of events that three detainees threatened to attack her and that this
posed a substantial risk of serious harm.
2.

Actual knowledge

Deliberate indifference requires a showing of an officer's "subjective awareness"
of the substantial risk of serious harm to the detainee. Riccardo, 375 F.3d at 526. To
have subjective awareness, an officer "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 that inference." Gevas, 798 F.3d at 480. A detainee, however, "need not
present direct evidence of the official's state of mind." Id. A finding that a correctional
officer "had actual knowledge of impending harm can be inferred from circumstantial
evidence." Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006) (internal quotation
marks omitted). A detainee's "generalized, vague, or stale concern about [her] safety
typically will not support an inference that a prison official had actual knowledge that the

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prisoner was in danger." Gevas, 798 F.3d at 480-81. For example, a prisoner's
statement that other inmates were "‘pressuring’ him and ‘asking questions'" is too vague
to "alert the officers to the fact that there was a true threat at play." Dale v. Poston, 548
F.3d 563, 569 (7th Cir. 2008). Likewise, a prisoner's statement that does "not identify
who had threatened him and what the threats were" is insufficient to alert an officer to
an impending harm. Butera, 285 F.3d at 606. But "[a] complaint that identifies a
specific, credible, and imminent risk of serious harm and identifies the prospective
assailant typically will support an inference that the official to whom the complaint was
communicated had actual knowledge of the risk." Gevas, 798 F.3d at 481.
Shrestha argues that Godfrey "never communicated to Officer Shrestha or any
other correctional officer she was in fear of being physically attacked by Goodman and
her cohorts." Defs.' Mem. in Supp. of Mot. for Summ. J. at 6. Shrestha testified that
she did not know of any risk, nor did she speak to Godfrey prior to the actual attack.
Indeed, Shrestha denies that Godfrey knocked on the interlock window. More
generally, Shrestha also denies that Godfrey came to her for help. As the Court has
indicated, however, Godfrey says exactly the opposite.
The Court concludes that there is a genuine factual dispute regarding Shrestha's
subjective awareness of a threat of serious harm to Godfrey. First, according to
Godfrey, she identified her prospective assailants to Shrestha. Although she may not
have identified her attackers by name, the evidence would support a reasonable finding
that she at least used a nonverbal cue to identify them. Godfrey testified, "they
[Goodman, Brownlee, and Betton] threw ice at me. I went and reached out for help
[and] told the officer, Shrestha, they were throwing ice, 'Come help me.'" Godfrey Dep.

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at 28:18-20, 29:3-6. Second, the evidence would support a reasonable finding that
Godfrey made Shrestha aware of the imminence of the threat. Godfrey testified that the
detainees threatened her five minutes before the attack, which prompted her to get
Shrestha's attention. Indeed, a photo in the record indicates that at 7:48:53 p.m.,
Godfrey knocked on the glass that separated the dayroom and the monitor room where
Shrestha was stationed. Another photo indicates that Shrestha came into the dayroom
immediately thereafter, at 7:49:22 p.m. The photographs support Godfrey's version of
the events, in particular her testimony that she alerted Shrestha to what she perceived
to be an imminent threat. Third, the evidence would support a reasonable finding that
Godfrey made Shrestha aware of the nature of the threat. Godfrey testified that once
Shrestha entered the dayroom, she told Shrestha that the detainees had threatened her
and that she had a prior confrontation with Goodman and Betton in which they tried to
attack her. Fourth, the evidence would support a reasonable finding that Shrestha was
aware that the threat against Godfrey was credible. This includes the evidence that
Shrestha was aware of the predatory nature of Godfrey's attackers. Shrestha testified
that Brownlee "get [sic] altercation with inmates. She does all kinds of disturbance."
Defs.' Ex. C (Shrestha Dep.) at 21:18-19. In addition, Shrestha's testimony that, before
the attack, she called a 10-10 over her radio—a signal that there is a fight in progress—
reasonably could be interpreted as indicating awareness of the likelihood of violence.
See id. at 30:3-5 ("I don't want the fight to go off, so I called 10-10.").
3.

Failure to act reasonably

A prison official with actual knowledge of a substantial risk of serious harm is not
liable if she "responded reasonably to the risk, even if the harm ultimately was not

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averted, because in that case it cannot be said that they were deliberately indifferent."
Guzman, 495 F.3d at 857 (internal quotation marks omitted).
Shrestha argues that even if Godfrey adequately apprised her of the threat from
the three detainees, her actions in response were reasonable. Defs.' Mem. in Supp. of
Mot. for Summ. J. at 5. But taking the evidence in the light most favorable to Godfrey, a
reasonable jury could find that Shrestha failed to act reasonably. Shrestha testified that,
had Godfrey told her that she felt threatened, she would have "pull[ed] [Godfrey] out
from the tier" and called a supervisor per the facility's protocol. Shrestha Dep. at 43:2144:3. And a reasonable jury could find this is or some other means of separation of
protection is, in fact, what the "reasonable response" standard required. Shrestha,
however, did not remove Godfrey from the other detainees. Id. at 43:21-45:6; Godfrey
Dep. at 30:24-31:12. Even after Godfrey's eventual attackers started to argue among
themselves, Shrestha still did not separate them. Instead, she simply ordered the
detainees to stand outside their respective cell doors. Shrestha Dep. at 35:10-22,
49:10-21. Godfrey testified:
I was walking down the hallway with three girls behind me shouting things
at me. I walked -- tried to keep my head up and walked to my door,
scared. What was I supposed to do? . . . I called the officer. She let me
go alone. Didn't remove these girls from me. What was I supposed to
do? Instead of removing these girls, she let me go by myself . . . with
three big girls.
Godfrey Dep. at 30:24-31:12.
In sum, the evidence, viewed in the light most favorable to Godfrey, would permit
a reasonable jury to find that she informed Shrestha that three detainees with a
propensity for violence threatened to attack her but Shrestha failed to take reasonable
steps to prevent the attack, such as separating Godfrey from the others. This would

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permit a reasonable jury to find that Shrestha was deliberately indifferent to a risk of
serious harm to Godfrey. For these reasons, entry of summary judgment is
inappropriate.
B.

Qualified immunity
Shrestha forfeited her qualified immunity defense for purposes of summary

judgment by failing to address the point in her opening brief. See Darif v. Holder, 739
F.3d 329, 336 (7th Cir. 2014) ("arguments raised for the first time in a reply brief are
waived.").
Conclusion
For the reasons stated above, the Court denies defendants' motion for summary
judgment [dkt. no. 44]. The final pretrial order, final pretrial conference, and trial dates
previously set by the Court remain in effect. The case is set for a status hearing on
February 24, 2017 at 9:15 a.m. to discuss the possibility of settlement.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: February 16, 2017

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