### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1707

J ON G ILES

, Plaintiff

‐ Appellant

,

v.

G ABRIELLE T OBECK et al

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 2:15

‐ cv

‐ 02068

— Sara Darrow

, Judge

.

____________________

A RGUED J UNE 6, 2018

— D ECIDED J ULY 10, 2018

____________________

Before W OOD

, Chief Judge

, and K ANNE and S CUDDER

,

Circuit Judges

.

P ER C URIAM

. Jon Giles, an inmate at Jerome Combs Deten

‐

tion Center, was punched and bitten when he tried to protect

his cellmate from a violent detainee’s assault. Giles sued sev

‐

eral correctional officers, asserting that they failed to protect

him from the attack in violation of the Eighth Amendment.

The district court entered summary judgment for the defend

‐

ants. Because a reasonable jury would be required to find2 No. 17

‐ 1707

from the undisputed evidence that the officers were not reck

‐

less, and that they responded reasonably both to the risk of an

attack and the actual attack, we affirm the judgment.

As this is an appeal from the entry of summary judgment,

we recount the facts in the light most favorable to Giles, the

non

‐ movant. See Estate of Simpson v. Gorbett

, 863 F.3d 740, 745

(7th Cir. 2017). Giles’s attacker, Kendrick Moore, had a history

of violent interactions with inmates and correctional staff at

the Center. Although Moore at one point was housed in seg

‐ regation in a maximum

‐ security area, he had been placed on

suicide watch shortly before the attack and moved to the first

floor of a general

‐ population section of the prison called

“E

‐ POD,” where he could more easily be monitored. While in

E

‐ POD, Moore stayed alone in his cell and would be let out

each day for only one hour, when no other detainees were to

be released from their cells.

On October 8, 2014, this precautionary system failed. That

day the morning

‐ shift guards, according to their log entry, re

‐

fused to let Moore out of his cell for his hour “due to tension

and repeated problems” with one of the officers. A supervisor

told the officers to let Moore out later that day, and at

2:30 p.m. they did so. During the 3:00 p.m. shift change,

Moore remained out of his cell and was spotted by the incom

‐ ing officers, Gabrielle Tobeck and Matthew Meehan, who

counted him as present during their headcount. At roughly

3:15 p.m., Tobeck released the inmates on E

‐ POD’s top tier.

Four minutes later she (and Meehan) noticed Moore saunter

past her desk. She immediately ordered Moore, who had been

hiding in the showers until then, to return to his cell and lock

up. He responded “Okay Tobeck” and continued walking to

‐

ward his cell, which was also in the direction of the staircase.No. 17

‐ 1707 3

But seconds later he sprinted up the stairs to the second floor,

where Giles shared a cell with Robert Scott. Moore begin

pummeling Scott outside of their cell. Giles, fearing that

Moore was about to throw his cellmate over the second

‐ floor

railing, tried to ward him off.

On seeing Moore bound up the stairs, Meehan ordered the

other inmates in the dayroom to steer clear of the fight. To

‐

beck, in the meantime, radioed for back

‐ up. Officer Nicholas

Mayo responded first, and within a minute he and another

officer were let into E

‐ POD by Tobeck. The two officers and

Meehan darted up the stairs and for twenty seconds shouted

at the inmates: “Stop it. Lay down. Cuff up.” Giles quickly

acceded to being handcuffed by Mayo before Moore (who

was resisting Meehan) lunged at the restrained Giles and be

‐

gan biting his arm. While Moore was attacking Giles, the

fourth officer removed Scott from the fight and brought him

downstairs in handcuffs. The officer returned to the second

floor along with several other officers who had just entered

E

‐ POD. Among them was Corporal Alvon Brown, who sub

‐

dued Moore with a Taser. Within six minutes of the outbreak,

the officers had removed all three inmates from E

‐ POD.

After the attack Giles was taken to a hospital, where the

staff disinfected his arm, gave him an unspecified injection,

and wrapped the arm in bandages. Giles has two permanent

scars and asserts that he continues to feel pain and has suf

‐

fered anxiety attacks since the fight.

Giles sued Tobeck, Meehan, and Mayo for recklessly fail

‐ ing to prevent Moore’s attack and being deliberately indiffer

‐

ent to the attack once it broke out. The district court entered

summary judgment for the defendants, concluding that they

all had responded reasonably to the fight, and that Tobeck’s4 No. 17

‐ 1707

actions before the attack amounted, at most, to gross negli

‐

gence.

To contest summary judgment, Giles was required to pro

‐

duce sufficient evidence for a rational jury to find that

(1) Moore presented an objectively serious risk of harm, and

(2) a defendant was deliberately indifferent to that risk, mean

‐ ing that he or she subjectively knew about the risk, and did

not take reasonable measures to abate it. See Farmer v. Bren

‐

nan

, 511 U.S. 825, 847 (1994); Dale v. Poston

, 548 F.3d 563, 569

(7th Cir. 2008).

We may accept that Moore presented a serious risk of

harm and that Giles produced sufficient evidence that the de

‐

fendants each knew of the risk. A prison official must respond

reasonably to a known risk of harm, but negligence or even

gross negligence is not enough to show a constitutional viola

‐

tion. See Rosario v. Brawn

, 670 F.3d 816, 821 (7th Cir. 2012). In

‐

stead the official’s response must be so inadequate that it

amounts to a reckless disregard for the risk, Fisher v. Lovejoy

,

414 F.3d 659, 662 (7th Cir. 2005), and “effectively condones the

attack.” Santiago v. Walls

, 599 F.3d 749, 756 (7th Cir. 2010). That

a response did not avert the risk does not mean it was unrea

‐

sonable, and the standard is always “reasonableness in light

of the surrounding circumstances.” Dale

, 548 F.3d at 569.

Giles first contends that Tobeck acted recklessly by allow

‐ ing the top

‐ tier inmates out of their cells without first account

‐ ing for Moore’s whereabouts. But her opening the cell doors

prematurely was at worst negligence, not recklessness. At the

time Tobeck released the top

‐ tier inmates, the risk of an attack

was not as apparent as it would become later, when she or

‐

dered Moore to return to his cell. Though Tobeck admits see

‐ ing Moore in the dayroom at the 3:00 p.m. headcount, she hadNo. 17

‐ 1707 5

no reason then to infer that he presented a substantial risk of

harm to any other inmates. Moore was expected to be out of

his cell; he was scheduled for dayroom time between 2:30 and

3:30 p.m. This contrasts with Junior v. Anderson

, in which we

reversed summary judgment in favor of a prison guard who

knew that the attacker’s cell had not locked properly—pre

‐ senting a security risk—but let the victim out anyway.

724 F.3d 812, 813–14 (7th Cir. 2013). Tobeck should not have

let out the second

‐ floor inmates until after Moore returned to

his cell at 3:30 p.m., but nothing in the record implies that her

actions were deliberate, malicious, or reckless rather than mis

‐

taken.

Giles next contends that Tobeck, upon realizing her error

in releasing the second

‐ floor inmates in Moore’s presence,

failed to act reasonably to correct it. Though she ordered

Moore to lock himself up, Giles argues that this response was

insufficient and that the “only reasonable action” was for her

to ensure that Moore was escorted back to his cell. Merely or

‐ dering Moore to lock up was reckless, he says, because it put

his fate in Moore’s hands. He compares his case to Mayoral v.

Sheahan

, in which we reversed summary judgment for an of

‐

ficer who had let drunken inmates out of their cells after a

gang leader falsely promised to “control ‘his guys,’” 245 F.3d

934, 936 (7th Cir. 2001). We recognized in that case that the

officer, in relying on the gang leader’s promise, had recklessly

“put the fate of the inmates in the hands of another inmate.”

Id. at 940.

Though escorting Moore back to his cell may have been a

better choice, Tobeck’s actions did not cross the line from neg

‐ ligently enabling the attack to recklessly condoning it. Unlike

the guard in Mayoral

, Tobeck did not deliberately abdicate her6 No. 17

‐ 1707

responsibility once she became aware of a violent inmate’s

presence. Instead, by ordering Moore to return to his cell, she

exerted her authority as a correctional officer. Though she

may have exercised too much restraint by stopping at only an

order, her belief that an order would be sufficient was reason

‐

able. Moore orally confirmed his compliance and appeared to

be obeying the order until the moment he sprinted up the

stairs. A jury could conclude that Tobeck showed poor judg

‐

ment in accepting Moore’s word that he would obey her com

‐

mand, but such a mistake would not be enough to show the

reckless disregard necessary for an Eighth Amendment viola

‐

tion. See O ʹ Brien v. Ind. Dep ʹ t of Corr. ex rel. Turner

, 495 F.3d

505, 510 (7th Cir. 2007). Meehan, for his part, reasonably could

have agreed with Tobeck that an order was sufficient to make

Moore walk the short distance back to his cell, so he had no

duty to do anything more to avert the risk of an attack after

observing Tobeck’s actions. See Fisher

, 414 F.3d at 664.

Finally, once the attack began, the undisputed evidence

shows that each of the defendants responded reasonably to

protect Scott and Giles from Moore. Tobeck called for back

‐ up

and waited for it to arrive, rather than jump into the fray her

‐

self. See Shields v. Dart

, 664 F.3d 178, 181 (7th Cir. 2011) (officer

acted reasonably by calling for back

‐ up instead of ordering

attacker to stop); Guzman v. Sheahan

, 495 F.3d 852, 858 (7th Cir.

2007) (same). And once Mayo and the rest of the back

‐ up ar

‐

rived, they and Meehan acted swiftly to “restore order to a

chaotic situation,” Fisher

, 414 F.3d at 664, and did so in just a

few minutes. The officers plausibly could have removed Giles

from the situation even faster and thereby reduced or pre

‐

vented his injuries, but the “mere failure of the prison official

to choose the best course of action does not amount to a con

‐No. 17

‐ 1707 7

stitutional violation.” Guzman

, 495 F.3d at 857 (internal quota

‐

tion marks omitted) (quoting Peate v. McCann

, 294 F.3d 879,

882 (7th Cir. 2002)).

Given the preceding analysis, summary judgment was

properly entered in the defendants’ favor. We therefore need

not address the defendants’ remaining arguments. The judg

‐

ment of the district court is AFFIRMED.