Opinion
18 C 50222
08-31-2021
Anthony Cano (M-53840), Plaintiff, v. Sgt. Gryigel, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Philip G. Reinhard, U.S. District Court Judge.
Plaintiff Anthony Cano, a prisoner at Dixon Correctional Center, brought this pro se civil rights complaint, 42 U.S.C. § 1983, alleging that prison officials failed to protect him from an attack by his cellmate. Defendant Ami Watson, a qualified mental health provider, moved for summary judgment, arguing that: (1) she has no ability to change housing assignments for inmates; (2) plaintiff never asked her to change his housing assignment; and (3) when plaintiff asked prison security staff to change his housing assignment, his request was denied. In a separate motion, defendants Correctional Officer Gryigel, Correctional Officer Wells, and Major Kemmeren (collectively, the “IDOC defendants”) argue they are entitled to summary judgment because: (1) plaintiff failed to provide evidence that defendants knew of and disregarded a substantial risk of serious harm to plaintiff; (2) Major Kemmeren was not personally involved in the alleged violation; and (3) defendants are entitled to qualified immunity. For the reasons that follow, both motions for summary judgment are granted.
BACKGROUND
I. Northern District of Illinois Local Rule 56.1
Local Rule 56.1 governs the procedures for filing and responding to motions for summary judgment in this court. The rule is intended “to aid the district court, ‘which does not have the advantage of the parties' familiarity with the record and often cannot afford to spend the time combing the record to locate the relevant information,' in determining whether a trial is necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (internal citation omitted). Local Rule 56.1(a) requires the moving party to provide a statement of material facts that complies with Local Rule 56.1(d). Local Rule 56.1(d) requires that “[e]ach asserted fact must be supported by citation to the specific evidentiary material, including the specific page number, that supports it. The court may disregard any asserted fact that is not supported with such a citation.” LR 56.1(d)(2).
The opposing party must then respond to the movant's proposed statements of fact. Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); LR 56.1(e). In the case of any disagreement, “a party must cite specific evidentiary material that controverts the fact and must concisely explain how the cited material controverts the asserted fact. Asserted facts may be deemed admitted if not controverted with specific citations to evidentiary material.” LR 56.1(e)(3). “A district court is not required to wade through improper denials and legal argument in search of a genuinely disputed fact.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (internal citation and quotation omitted). Mere disagreement with the opponent's factual statement is inadequate unless made with appropriate citation to the record. Id.
Because plaintiff is proceeding pro se, both sets of defendants served him with a “Notice to Pro Se Litigant Opposing Motion for Summary Judgment” as required by Local Rule 56.2 [89, 106]. Magistrate Judge Schneider later directed the IDOC defendants to send plaintiff a notice that comported with the court's Feb. 19, 2021, rule change, which they did. [111, 112.] Plaintiff responded to defendant Watson's Statement of Facts [109], but did not respond to her memorandum of law despite being given additional time to do so [111]. Plaintiff likewise did not respond to the IDOC defendants' statement of facts, as his response appears to correspond to numbering of their summary judgment motion. Cf. Pl.'s Resp. to IDOC Defs.' Mot. for Summ. J. [113], with IDOC Defendants' Motion for Summary Judgment [105]. Plaintiff also submitted various exhibits in support of his position.
Where plaintiff has not responded (or has not properly responded) to defendants' factual statements, the court will accept them to the extent they are supported by the record. See Milton v. Slota, 697 Fed.Appx. 462, 464 (7th Cir. 2017) (unpublished) (“[T]he [district] court was entitled to strictly enforce the local rule, even against a pro se litigant, by deeming uncontroverted statements of material fact admitted for the purpose of deciding summary judgment.”). Further, even where plaintiff has responded to Watson's factual statements, many of his responses are irrelevant, argumentative, or not supported by admissible evidence. The court will entertain plaintiff's factual statements only to the extent they are supported by the record or he could properly testify about the matters asserted. See Sistrunk v. Khan, 931 F.Supp.2d 849, 854 (N.D. Ill. 2013).
The court is mindful, however, that failure to comply with Local Rule 56.1, or indeed to respond at all to a motion for summary judgment, does not automatically warrant judgment in favor of the moving party. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). The burden remains with defendants to show they are entitled to judgment as a matter of law. Id. The court will apply these standards in evaluating the evidence.
Subject-matter jurisdiction is proper in this Court under 28 U.S.C. § 1331, and venue is correct because the events occurred at Dixon Correctional Center, which lies within this district and division. (See IDOC Defs.' SOF, Dkt. No. 107, at ¶¶ 5, 6.)
Plaintiff, Anthony Cano, is an inmate at the Dixon Correctional, and was such at all relevant times. (Watson's SOF, [87, at ¶ 1]; IDOC Defs.' SOF, [107, at ¶ 1].) Ami Watson, who is employed by Wexford Health Sources, Inc., is a qualified mental health provider at Dixon and held that position at all relevant times. (Watson's SOF at ¶ 2.) Her duties include conducting assessments of inmates with mental health issues and collaborating with other mental health providers to provide mental health treatment to inmates at Dixon. Id. Gryigel and Wells are and were at the relevant time correctional officers at Dixon. (IDOC Defs.' SOF at ¶¶ 2, 3.) Defendant Joanna Kemmeren is and was a correctional officer with the rank of major. Id. at ¶ 4.
Sometime during the summer of 2017, plaintiff was in the yard at Dixon when another inmate, Frenchwood, made comments to him of a sexual nature. (Watson's SOF, [87, at ¶ 3].) Plaintiff testified that he was jogging shirtless in the yard when he heard Frenchwood expressing a sexual preference for Latinos. See Pl.'s Dep., [87-1, at 13:2-24]. Plaintiff could not recall his exact phrasing. Id. At some point, Frenchwood, pointed at plaintiff and said, “Yeah, I am talking to you.” Id. at 14:1-7. Plaintiff did not respond. Id. at 14:16-22.
On or about October 24, 2017, plaintiff was moved into a cell occupied by inmate Frenchwood. (Watson SOF, [87, at ¶ 4].) Plaintiff told Gryigel and Wells that he did not feel comfortable in a cell with Frenchwood because Frenchwood had made a sexual comment to him. See id.; IDOC Defs.' SOF, [107, at ¶ 7]; Pl.'s Dep., [87-1, at 17:21-18:3]. Plaintiff also told the officers he wanted to be moved because it was his understanding that Frenchwood is gay. (IDOC Defs.' SOF at ¶ 8; see Pl.'s Dep. at 18:12-15.) Plaintiff testified that he was scared because he is 5 foot 5 inches tall and physically disabled, while Frenchwood was 6 feet tall and outweighed him by 150 pounds. Id. at 18:16-19:3.
Plaintiff testified that Officer Gryigel laughed and said something to the effect of “if I was scared to have a good time.” (Pl.'s Dep., [ 87-1, at 18:1-3; 25:20-26:6].) Plaintiff said that Officer Wells laughed at those comments. Id. at 26:16-27:11. Plaintiff testified that after this occurred, he had an anxiety attack and said that he needed to go on crisis watch. Id. at 45:16-46:6. Plaintiff then grabbed a sheet and went to the shower in what he described as an attempt to hang himself. Id. at 47:12-19. One of the officers stopped him, and plaintiff was then placed on crisis watch for three days. Id. at 47:20-48:10; Watson's SOF, [87, at ¶ 5].
On or about Oct. 24, 2017, a crisis team member named Tina Rockwell completed a suicide potential assessment for plaintiff. (Watson's SOF at ¶ 6.) Based on plaintiff's statements about his mental state, Rockwell determined that he should be reviewed for crisis watch placement and for evaluation by a mental health professional. Id. Ms. Rockwell spoke with Dr. Jamie Chess, a psychologist at Dixon, who determined that plaintiff should be placed on a 10-minute suicide watch, meaning that he would be observed at 10-minute intervals for his safety. Id.
The next day, Oct. 25, 2017, Watson saw plaintiff for a suicide evaluation and follow-up on his suicide watch. Id. at ¶ 7. At this time, she reviewed the prior evaluation by Ms. Rockwell. Id. Plaintiff told Watson that he did not want a homosexual cellmate and that he felt unsafe around his cellmate. Id. Plaintiff disagreed with this assertion in his response to Watson's statement of facts but the extent of his disagreement is to say that he also told Watson that he had been sexually molested as a child. (Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 7].)
Plaintiff testified that after he explained this to Watson, she told him that he could refuse his housing assignment and be moved to segregation. (Watson SOF, [87, at ¶ 8].) Although plaintiff disputes this fact, he does not explain the basis for this dispute, and this fact was taken from plaintiff's own testimony. See Pl.'s Dep., [87-1, at 57:6-14]. Plaintiff also attached declarations under penalty of perjury from other two inmates indicating that they found Watson to be unprofessional in their interactions with her (see [109-3 and 109-4]), but it is unclear how this is relevant to plaintiff's case.
During Watson's examination of plaintiff on Oct. 25, 2017, he was alert and oriented to time, place, and person. (Watson SOF, [87, at ¶ 9].) He denied any suicidal or homicidal ideations, but she found his insight and judgment to be poor. Id. Watson assessed plaintiff's condition as stabilizing, and planned to discuss his case with a psychologist, Dr. Sheila Stone. Id. Watson modified his crisis watch to 15-minute intervals. Id. Plaintiff disputes this account of their interactions on Oct. 25, 2017, but the extent of his dispute is to present declarations from other inmates asserting that qualified mental health professionals at the prison provided inadequate treatment to prisoners on crisis watch. See Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 9]; see also [109-5, 109-6, 109-7].) Plaintiff also includes a declaration from a cellmate stating that plaintiff has mental problems and needs help. See [109-9]. Again, it is unclear what relevance this has to the issue of whether defendants failed to protect plaintiff from an assault by inmate Frenchwood.
The next day, on Oct. 26, 2017, Watson saw plaintiff for a follow-up on his crisis watch. (Watson SOF, [87, at ¶ 10].) At that time, plaintiff was on a 15-minute watch. Id. Plaintiff told Watson he wanted to work on court papers for obtaining custody of his daughter and could not do that if he was in segregation for refusing housing. Id. Plaintiff also told Watson he had Post-Traumatic Stress Disorder, and did not want to be placed with a homosexual cellmate. Id. Watson told plaintiff she was not involved in changing housing assignments and had no authority to do so. Id. Watson told plaintiff that changes in housing assignments needed to go through the housing assignment coordinator and not the mental health staff. Id. Plaintiff disputes this, but only to the extent that he contends that he also told Watson about his past history of sexual abuse, the relative sizes of himself and his cellmate, and his physical disability. (Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 10]; see Pl.'s Dep., [87-1, at 23:11-24:1].)
Plaintiff testified that he uses a cane due to having been shot and having had a rod inserted in his right leg from his hip to his knee, as well as having nerve damage that gives him a drop foot.
During Watson's examination of plaintiff on Oct. 26, 2017, she noted that he was alert and oriented to time, place and person. (Watson SOF, [87, at ¶ 11].) He denied any homicidal or suicidal ideations at that time. Id. Watson found that plaintiff's insight and judgment were still poor, but assessed his mental condition as stabilizing. Id. She planned to consult with Dr. Chess about plaintiff's mental health status and changed his crisis watch to 30-minute intervals. Id. Watson also approved plaintiff to receive a mattress, security smock, and blanket. Id. Plaintiff disputes this by stating that this means Watson let him “suffer for two days in a cold cell” without clothing, a mattress, a security smock, or a blanket. See Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 11].) But plaintiff does not cite to the record in support of this assertion, and plaintiff did not bring a claim against her for inadequate conditions of confinement or inadequate medical care. The only claim at issue is a claim for failure to protect.
Plaintiff did not ask Watson for a change in housing assignment on Oct. 26, 2017. (Watson SOF, [87, at ¶ 12].) Plaintiff acknowledges this, but states that he “saw no reason” to request anything from Watson at this point. (Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 12].) Plaintiff and Watson did not have any further interactions while he was on crisis watch. (Watson SOF at ¶ 13.)
The next day, on October 27, 2017, plaintiff was seen by another qualified mental health professional, Jamie Weigand, for a follow-up related to the crisis watch. Id. at ¶ 14. At that time, plaintiff was still on a 30-minute crisis watch. Id. Plaintiff reported that he was on crisis watch because of a “cellie issue.” Id. Plaintiff stated that he was non-compliant with his medications. Id. Weigand's treatment notes indicated that plaintiff understood that he could refuse his housing assignment instead of going on crisis watch. Id. Plaintiff disagreed with these assertions regarding Weigand's treatment, which are based on her treatment notes, but states only that “their [sic] is no reasoning with the QMPHs.” See Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 14].
At the time of Weigand's examination, plaintiff was alert and oriented to time, place, and person. (Watson SOF, [87, at ¶ 15].) Plaintiff denied any suicidal or homicidal ideations. Id. His eye contact and speech were appropriate. Id. Weigand assessed plaintiff as stable, planned to discontinue his crisis watch, and ordered a follow-up with the mental health staff and psychiatry services. Id.
On Oct. 27, 2017, plaintiff was released from crisis watch. Id. at ¶ 16. Plaintiff again talked with Officer Gryigel and a younger officer about his cell assignment. Id. at ¶¶ 16-17; see Pl.'s Dep., [87-1, at 62:24-63:22].) Plaintiff told the younger officer the same thing he had previously told Gryigel and Watson, that Frenchwood had made a prior sexual comment toward him and he did not feel comfortable in the cell with him. Id. The younger correctional official tried to have plaintiff moved to an empty cell and made a phone call attempting to do this (to whom he spoke is unclear). See Pl.'s Dep., [87-1, at 19:9-20:21]. But the officer told plaintiff that Major Kemmeren had denied the requested change in cell assignment. (Watson SOF, [87, at ¶ 17]; see Pl.'s Dep., [87-1, at 19:9-20:21].)
Major Kemmeren submitted a declaration stating, in relevant part, that correctional officers in the rank of major do not authorize or process an inmate's request for a cell change over the telephone. (IDOC Defs.' SOF, [107, at ¶ 14]; see also Kemmeren Decl., [107-4].) She added that officers of her rank do not make cell assignments or process inmate requests for cell assignment changes. Id. at ¶ 13. Rather, inmate cell assignments are processed by the Placement Office. Id. at ¶ 10. If an inmate wants a cell assignment change, he typically must write to the Placement Office via a request slip or write to Internal Affairs. Id. at ¶ 11. If an inmate has a need for an immediate cell change, he can advise a sergeant or lieutenant on shift and have himself removed from the cell and escorted to restrictive housing. Id. at ¶ 12.
On the evening of Oct. 28, 2017, after plaintiff had been returned to his cell, Frenchwood made a sexual comment to plaintiff when they were in the cell together. (Watson SOF, [87, at ¶ 18].) When plaintiff went to press the emergency call button, Frenchwood attacked him. Id. An officer conducting a night count saw Frenchwood attacking plaintiff and broke up the fight. Id.
Following the incident, plaintiff was taken to the Health Care Unit. Id. at ¶ 19. Defendants contend he did not receive any medical treatment as a result of the altercation, although plaintiff reported bruises and knots on the side of his head the next day to a nurse, who gave him Ibuprofen. (Id.; IDOC Defs.' SOF, [107, at ¶ 9].) Plaintiff contends that he injured his back in the altercation, which a physical therapist told him placed additional strain on his injured leg. See Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 19]; see also Pl.'s Dep., [87-1, at 30:16-33:4].)
Defendant Watson provided a declaration stating that as a qualified mental health professional employed by a private vendor of medical services, she had no control or authority over housing assignments. See Watson SOF, [87, at ¶ 20]; see also Watson Decl., [87-2].) Plaintiff contends that qualified mental health professionals can help by asking a placement officer to look at the situation, but he cites no authority in support of this proposition. See Pl.'s Resp. to Watson's Mot. for Summ. J., [109, at ¶ 20].) Similarly, plaintiff testified that Watson could have made a recommendation to change his housing assignment. See Pl.'s Dep. at 59:5-11. But he concedes that he did not know to whom she would make that recommendation, and did not ask her to do so. See Watson SOF at ¶ 21; see also Pl.'s Dep. at 59:5:15. Aside from plaintiff's statements, Watson did not know anything about plaintiff's issues with his cellmate and had no knowledge of any threats made by plaintiff's cellmate toward him. (Watson SOF at ¶ 22.) Watson contends that she met the professional standard of care at all times, and at no point laughed at or belittled plaintiff. (Watson SOF at ¶¶ 23-24.) In response to this, plaintiff contends only that she did “a poor job of an assessment.” See Pl.'s Resp. to Watson's Mot. for Summ. J. at ¶ 24.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate if 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); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact is not demonstrated by “the mere existence of some alleged factual dispute between the parties, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), or by “some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a fact is material if it might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992). A genuine issue of material facts exists when “‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once the party moving for summary judgment demonstrates the absence of a disputed issue of material fact, “the burden shifts to the non-moving party to provide evidence of specific facts creating a genuine dispute.” Carrol v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-movant must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Hannemann v. Southern Door Cty. Sch. Dist., 673 F.3d 746, 751 (7th Cir. 2012). Thus, “summary judgment must be entered ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”' Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992) (quoting Celotex, 477 U.S. at 322 (1986)); Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027, 1032 (7th Cir. 2019).
When deciding a motion for summary judgment, the court does not weigh the evidence, judge credibility, or determine the truth of the matter, but rather determines only whether a genuine issue of fact exists. Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). The court must construe all facts in the light most favorable to the nonmoving party and draw all legitimate inferences in favor of that party. Id.
II. Analysis
The Eight Amendment's proscription against cruel and unusual punishment includes a duty to “protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). But “a prison official does not violate the Eighth Amendment every time an inmate gets attacked by another inmate.” Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008). “Prisons, after all, are dangerous places often full of people who have demonstrated aggression.” Dale, 548 F.3d at 569. Rather, a prison official is liable for failure to protect an inmate “only if the official ‘knows of an disregards an excessive risk to inmate health and safety.'” Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (quoting Farmer, 511 U.S. at 837).
A claim for deliberate indifference has two components, one objective and one subjective. Id. First, the harm to which the prisoner was exposed must be objectively serious. Id. This means not only that the prisoner experienced a serious harm, “but also that there was a substantial risk beforehand that the serious harm might actually occur.” Brown v. Budz, 398 F.3d 904, 910 (7th Cir. 2005). A finding that the prisoner was exposed to an objectively serious risk of harm cannot be based solely “on what came to pass, ” but rather the prisoner must show that the likelihood of the harm occurring was sufficiently serious. Estate of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir. 2017) (assessment of risk cannot be based on hindsight). A substantial risk is one that is so great that it is “almost certain to materialize if nothing is done.” Brown, 398 F.3d at 911 (internal citation omitted).
Second, the defendant prison official “must have actual, and not merely constructive, knowledge of the risk, ” meaning that “‘he must both be aware of the facts from which the inference could be drawn that a substantial risk of harm exists, and he must draw that inference.'” Gevas, 798 F.3d at 480 (quoting Farmer, 511 U.S. at 837).
A. Plaintiff Failed to Provide Evidence that Defendants Knew of and Disregarded a Substantial Risk of Serious Harm
Defendants argue that plaintiff has not brought forth evidence that there was a substantial risk beforehand that Frenchwood would seriously harm him, and relatedly, that they were not aware of a specific threat of harm posed by Frenchwood to plaintiff.
Defendant Watson primarily raises this argument in her reply brief, as her motion focuses on the reasonableness of her response. But this argument applies equally to all defendants, and plaintiff had notice of this argument based on the IDOC Defendants' motion and had an opportunity to respond. The court therefore considers this argument as to all defendants. See Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986) (court may impute argument to additional defendants if summary judgment motion by one defendant is equally effective in barring claim against other defendants and plaintiff had adequate opportunity to respond to the motion).
This argument is well-taken and ultimately dispositive. “In failure to protect cases, a prisoner normally proves actual knowledge of impending harm by showing that he complained to prison officials about a specific threat to his safety.” Gevas, 798 F.3d at 480 (internal citation and quotation omitted). Complaints that are too general, vague, or stale generally will not support an inference that the prison official had actual knowledge of a substantial risk of harm. Id. at 480-81. “By contrast, 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.” Id. at 481.
The facts in this case are similar to those at issue in Bettencourt v. Owens, 542 Fed.Appx. 730, 732 (11th Cir. 2013) (unpublished), in which the plaintiff complained that he was being sexually harassed and needed protection. The defendant prison officials did not transfer the plaintiff to protective custody, and he ultimately was attacked and sexually assaulted. Id. The appeals court found, however, that complaints of sexual harassment were insufficient to put prison officials on notice of substantial risk of serious harm, agreeing with the district court that: “With no further description or detail as to whether the sexual harassment, for example, involved physical touching or physical threats, a strong, specific likelihood of an attack could not have arisen in Defendants' subjective conscience.” Id. at 735. Because of the vagueness of the plaintiff's complaint, “the sexual harassment from which plaintiff allegedly suffered could have merely constituted inappropriate verbal advances, verbal taunts, or uncomfortable sexual compliments, with no insinuation of violence. Id. The appeals court concluded that “[s]exual harassment in this form does not rise to the level of a substantial risk of harm.” Id.
Similarly, here, plaintiff's fear stemmed from an incident that had occurred sometime in the summer, months before he was placed in a cell with Frenchwood. It is unclear from the record whether plaintiff told the officer defendants or Watson the specifics of the comment Frenchwood made regarding a sexual preference for Latinos, or that he pointed at plaintiff after making the comment and indicated he was referring to plaintiff. But even if plaintiff conveyed the full context of the situation, an unwanted verbal advance, months before men became cellmates and unaccompanied by any threats of sexual assault or violence, does not rise to the level of a substantial risk of harm.
The Seventh Circuit has outlined several scenarios in which a risk of inmate assault becomes substantial, including “risks attributable to detainees with known ‘propensities' of violence toward a particular individual or class of individuals; to ‘highly probable' attacks; and to particular detainees who pose a ‘heightened risk of assault to the plaintiff.'” Brown, 398 F.3d at 911. In his amended complaint, plaintiff referred to Frenchwood as a “known homosexual predator of considerable size.” See Pl.'s Am. Compl., . Plaintiff submitted with his response to the IDOC defendants' summary judgment motion three declarations under penalty of perjury from inmates who state that they witnessed correctional staff place plaintiff “in a cell with a known homosexual predator[] of considerable size more than once.” See [113-1, at pp. 14-16]. Assuming this is a reference to Frenchwood, there is no information about how these inmates knew Frenchwood was a predator or what he had done in the past to be considered such. More importantly, there also is nothing in these declarations to indicate that defendants had any information indicating that Frenchwood was a predator.
Although an altercation between plaintiff and Frenchwood did in fact occur, there is nothing in the record indicating a high likelihood of violence beforehand based on an inappropriate remark Frenchwood allegedly made months before. It follows that defendants were not subjectively aware of a substantial risk of serious harm to plaintiff simply because plaintiff conveyed that remark to them.
Other courts also have found that allegations of the sort made by plaintiff in this case were insufficient to state a claim or to survive summary judgment. For example, in Cole v. Tredway, the district court found that a transgender prison inmate's complaints to a prison official that she had been subjected to “propositions, winking, and other sexually suggestive gestures from other inmates” did not establish that the official was aware of a substantial risk of bodily harm to her. Cole v. Tredway, No. 14- CV-1059, 2016 WL 7118946, at *5 (S.D. Ill.Dec. 7, 2016) (Reagan, J.). There, the court observed that in cases for failure to protect against the risk of sexual assault that survived summary judgment, the record generally “contained evidence of correctional officers' knowledge of a specific and substantial threat, ” such as evidence of prior sexual misconduct of the inmate posing the risk, repeated advances involving physical contact, the prevalence of sexual assault at that particular prison, or multiple instances in which the plaintiff was the victim of an actual or attempted sexual assault. Id. (collecting cases). As in Tredway, none of those factors are present in the record in the instant case.
Similarly, in Fletcher v. Phelps, 639 F. App'x. 85, 87 (3d Cir. 2015) (unpublished), the prisoner brought suit after his cellmate allegedly tried to rape him. He argued that prison staff failed to do anything when he reported his cellmate's advances. Id. In affirming the grant of summary judgment, the appeals court observed that the only evidence that the prisoner-plaintiff was at substantial risk of harm consisted of his own statements prior to the altercation indicating that his cellmate had touched him and harassed him for sex. Id. at 88. Even though the plaintiff's sexual orientation as a gay man arguably put him at greater risk of harm than other inmates, the appeals court found the evidence insufficient to show that the defendant correctional officer was aware of a substantial risk of harm. Id.; see also Shorter v. United States, Civ. No. 17-8911, 2019 WL 287280, at *4 (D.N.J. Jan. 22, 2019) (Bumb, J.) (dismissing failure to protect claim brought by transgender inmate where she alleged some verbal harassment, but no specific threats that required protection); Hunt v. Washington, No. 92 C 20115, 1996 WL 616252, at *6 (Oct. 23, 1996) (Reinhard, J.) (prisoner plaintiff's statement to officer that cellmate was trying to touch him and “acting real sexually strange” was insufficient to put defendant on notice of a substantial risk to plaintiff's safety).
The court understands that plaintiff may have genuinely feared a sexual assault by his cellmate. But however genuine his fears, the evidence in the record is insufficient to indicate that plaintiff faced a substantial risk of serious harm prior to the altercation with his cellmate, or that defendants were aware of such a risk. For this reason, all defendants are entitled to summary judgment.
For the sake of completeness, the court observes that the alternative arguments raised by the IDOC defendants fail. First, the IDOC defendants argue that plaintiff's “alleged fear of harm did not actualize, ” apparently because Frenchwood did not sexually assault plaintiff, although they were involved in a physical altercation. But defendants cite no authority in support of the proposition that the harm must occur in precisely the way the plaintiff feared it, and the court is not aware of any.
Next, defendant Kemmeren, relying on her declaration, argues that she was not personally involved in the alleged violation of plaintiff's rights. The court observes that Major Kemmeren's declaration does not directly address plaintiff's deposition testimony that an officer told him that Major Kemmeren had denied the request for a cell change. Based on this testimony, the record is unclear as to Major Kemmeren's personal involvement. Regardless, for the reasons set forth above, Major Kemmeren is entitled to summary judgment, as there is no indication that she was aware of and disregarded a substantial risk of serious harm to plaintiff even if she had known of plaintiff's complaints about his cellmate.
Finally, the IDOC defendants argue that they are entitled to qualified immunity because they did not have prior notice that they could be held liable for failing to act on plaintiff's vague complaints that he was uncomfortable with his cellmate.
“Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (internal quotation and citation omitted). When evaluating whether qualified immunity applies, courts must “consider two questions: (1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right, and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Allin v. City of Springfield, 845 F.3d 858, 862 (7th Cir. 2017) (internal citation and quotation omitted). Qualified immunity is appropriate “when the law, as applied to the facts, would have left objectively reasonable officials in a state of uncertainty.” Horshaw v. Casper, 910 F.3d 1027, 1030 (7th Cir. 2018).
Defendants do not argue that the law, as applied to the facts, left them in a state of uncertainty. Defendants' argument, rather, is that plaintiff's claims fail on the merits. The Seventh Circuit in Horshaw, observing that “Farmer clearly establishes the governing rules for failure-to-protect cases, ” characterized this type of argument as “a confusion.” 910 F.3d at 1030. While the court agrees that defendants are entitled to judgment as a matter of law, this does not entitle them to qualified immunity.
B. Reasonableness of Defendant Watson's Response
Again, for the sake of completeness, the court turns to defendant Watson's argument that her response was reasonable because, as a qualified mental health provider: (1) she has no ability to change housing assignments for inmates: (2) plaintiff never asked her to change his housing assignment; and (3) when plaintiff asked prison security staff to change his housing assignment, his request was denied.
The court observes first that most of plaintiff's response focuses on the quality of Watson's mental health treatment. He also alleges for the first time that Watson left him in a cold cell for two days without clothing or other means of warmth. But plaintiff did not bring a claim for deliberate indifference to his serious mental health needs or unconstitutional living conditions, and he cannot amend his complaint to add those claims now. Griffin v. Potter, 356 F.3d 824, 830 (7th Cir. 2004) (party cannot amend his complaint through allegations made in response to a motion for summary judgment).
The only claim at issue here is one for failure to protect, and there is no dispute that Watson, a mental health worker, told plaintiff she was not involved in changing housing assignments and had no authority to do so. Watson told plaintiff that changes in housing assignments needed to go through the housing assignment coordinator and not mental health staff. Plaintiff testified in his deposition that Watson could have made a recommendation to change is housing assignment, but he cites no authority for this proposition, and he acknowledged that he did not ask her to do so.
Relevant to the instant case, the Seventh Circuit has observed that “[p]ublic officials do not have a free-floating obligation to put things to rights.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). The court observed:
Bureaucracies divide tasks; no prisoner is entitled to insist that one employee do another's job. The division of labor is important not only to bureaucratic
organization but also to efficient performance of tasks; people who stay within their roles can get more work done, more effectively, and cannot be hit with damages under § 1983 for not being ombudsmen.Id.
The same principles apply here. While plaintiff was on crisis watch, there was nothing to indicate that plaintiff was at immediate risk of harm from his cellmate. Defendant Watson explained to plaintiff how he could request a change in his cell assignment from correctional officials. No. more was required under the facts of this case. See, e.g., Stewart v. Schotimer, No. 3:18-CV-518, 2018 WL 5808505, at *2 (N.D. Ind. Nov. 6, 2018) (DeGuilio, J.) (dismissing claims against officials who knew he feared his cellmate, but allowing prisoner plaintiff to proceed against case worker allegedly responsible for failure to effectuate a transfer); Talley v. Melby, No. 14-cv-783, 2018 WL 5266593, at *7 (W.D. Wis. Oct. 23, 2018) (Peterson, J.) (granting summary judgment to unit manager because there was no evidence in the record that manager had authority to move plaintiff to a new unit or provide him with better accommodations without a referral from medical staff, and observing, “[Defendant] cannot be held liable for failing to do something he had no responsibility for.”); Davis v. Griffin, No. 3:17-CV-652, 2017 WL 6621005, at *2 (N.D. Ind. Dec. 28, 2017) (Miller, J.) (dismissing claim against lieutenant who referred prisoner with cell change request to the “unit team, ” and observing, “Directing a prisoner with a request to the appropriate department isn't deliberate indifference.”); Moseby v. Smith, No. 15-cv-1096, 2017 WL 3891687, at *6 (E.D. Wis. Sept. 6, 2017) (Pepper, J.) (granting summary judgment to warden and lieutenant as to plaintiff's claim regarding alleged cold temperatures in restrictive housing unit, as it “amount[ed] to a claim that they had a responsibility to do the job of the HVAC specialist, or the restrictive housing supervisor”).
In plaintiff's version of events, Major Kemmeren denied his request for a change in cell assignment following his release from crisis watch. Although Major Kemmeren apparently denies this, it appears based on the record that correctional staff had the same information regarding plaintiff's concerns about his cellmate as Watson did, but chose not to change plaintiff's cell assignment. There is no information in the record indicating that Watson, as a healthcare worker, had the responsibility or authority to do more. Thus, Watson is entitled to summary judgment on this basis as well.
For all the foregoing reasons, defendants' motions for summary judgment are granted. If plaintiff wishes to appeal any portion of this ruling, he must file a notice of appeal with this court within thirty days of the entry of judgment. See Fed. R. App. P. 4(a)(1). If plaintiff appeals, he will be liable for the $505.00 appellate filing fee regardless of the appeal's outcome. See Evans v. Ill. Dep't of Corr., 150 F.3d 810, 812 (7th Cir. 1998). If the appeal is found to be non-meritorious, plaintiff could be assessed a “strike” under 28 U.S.C. § 1915(g). If a prisoner accumulates three “strikes” because three federal cases or appeals have been dismissed as frivolous or malicious, or for failure to state a claim, the prisoner may not file suit in federal court without pre-paying the filing fee unless he is in imminent danger of serious physical injury. Id. If plaintiff seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to proceed in forma pauperis in this court stating the issues he intends to present on appeal. See Fed. R. App. P. 24(a)(1).
Plaintiff need not bring a motion to reconsider this court's ruling to preserve his appellate rights. However, if plaintiff wishes the court to reconsider its judgment, he may file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule 59(e) motion must be filed within 28 days of the entry of this judgment. See Fed. R. Civ. P. 59(e). The time to file a motion pursuant to Rule 59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e) motion suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R. App. P. 4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than one year after entry of the judgment or order. See Fed. R. Civ. P. 60(c)(1). The time to file a Rule 60(b) motion cannot be extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon only if the motion is filed within 28 days of the entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).
CONCLUSION
For these reasons, the court grants defendant Watson's motion for summary judgment [85] as well as the IDOC defendants' motion for summary judgment [105]. Plaintiffs request for a status update [117] is denied as moot in light of this ruling. Final judgment will be entered.