Iv. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is denied.

So Ordered.

Mark Filip
United States District Judge
Northern District of Illinois

Dated: 0-13-05

Amendment) (citing Estelle, 429 U.S. at 104-05).
14


to the events at issue. (D.E. 30 4 12; D.E. 29 ff 8-10.)

During the late hours of October 3, 2002, Officer Barksdale’s shift began, and she
proceeded to conduct a standard inmate count. (D.E. 30 8.) While Barksdale was counting the
inmates, Harris was “going off” in her cell. (/d. 9.) Around 11:20 that evening, after listening
to Hartis’s tirade and repeated threats that she would burn her cell down, Barksdale let Harris out
of her cell. (D.E. 29 § 13; 30 § 10.) She did so despite the fact that inmates were supposed to be
remain locked in their cells from lockdown time—around 9:00 or 9:30 in the evening—until it
was time for breakfast. (D.E. 30 f§ 6-7.) Barksdale and Harris walked down the hall from
Harris’s cell, past Plaintiff's cell door, where Harris (with Barksdale supposedly directly next to
her) stopped long enough to demand that Plaintiff “come to the chuckhole (a hole in each cell
door approximately four inches by one foot).” (D.E. 30 {§ 11-13; D.E. 29 4 14.) Harris then
confronted Barksdale, demanding that Barksdale “pop the lock” of Riley’s cell, and Barksdale
responded that she could not do so. (D.E. 30 ff 14-15.) Harris then informed Barksdale that
“when the door is popped for breakfast, I’m going to fuck that bitch [Riley] up.” (/d. 4 16.)
Barksdale responded, “Come on Melissa,” and the two walked away. (/d.)

Harris came back to Riley’s cell about thirty or forty-five minutes later, and she again
demanded that Riley get out of bed and come to the chuckhole. (/d. 18.) When Riley refused
to do so, Harris waited outside Riley’s cell door and eventually got a chair and sat outside the
door for an extended period of time. (/d.) While Harris was waiting outside Riley’s door,
Officer Barksdale apparently allowed her to remain outside of her cell at her convenience and
even asked Harris if she was alright. (/d. J 19.) Leaving Harris unsupervised at night in this

manner was not permitted under the standard procedures of the Cook County Jail. (/d. {§ 6-7.)


serious harm exists, and he must also draw the inference.’” /d. at 913 (internal citations omitted).
Defendants, however, are not required to ensure a prison inmate’s safety categorically, and “[t]he
existence or possibility of other better policies which might have been used does not necessarily
mean that the [the officers were] being deliberately indifferent.” Butera v. Cottey, 285 F.3d 601,
605 (7th Cir. 2002) (citation omitted). Thus, the deliberate indifference prong carries two
separate and distinct elements: knowledge of risk and a disregard of that risk.

A prisoner usually proves that jail officials knew of a risk in one of two ways: by showing
that he alerted prison officials of the threat, James v. Milwaukee County, 956 F.2d 696, 700 (7th
Cir. 1992), or by showing that the risk was so substantial that the officials’ knowledge can be
inferred. Farmer, 511 U.S. at 842; accord Perez v. Velasco, No. 98 C 8018, 2001 WL 844496,
at *4 (N.D. Ill. July 23, 2001). For a risk to be obvious, a prisoner must show that the risk was
“long-standing, pervasive, well-documented, or that it has been expressly noted by prison
officials in the past.” Farmer, 511 U.S. at 842. A plaintiff must also demonstrate that the
defendant(s) disregarded that known risk.

In the instant case, a jury could conclude that Plaintiff faced a substantial risk of serious
harm. It is uncontroverted that Plaintiff was beaten into unconsciousness and suffered facial
damage at the hands of Melissa Harris, and Harris had a reputation for violent and assaultive
behavior. Furthermore, after the summary judgment briefing cycle, there remains a material
issue of fact concerning whether Barksdale and Vargas knew of the risk to Plaintiff. As to
Barksdale, testimony from Riley’s deposition (admitted for the purposes of summary judgment
due to Defendants’ failure to comply with L.R. 56.1) demonstrates that Officer Barksdale was

present for Harris’s repeated and specific threats towards Riley. Barksdale also allowed Harris to

10


incident. (D.E. 30 § 28.) Asa result of this incident and the resultant investigation, Officer
Barksdale was terminated from her position at the Cook County Jail. (/d. 31.) On August 21,
2003, Plaintiff filed this complaint in federal court.
Il. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The nonmovant cannot rest on the pleadings alone, but
must identify specific facts, see Cornfield y. Consol. High Sch. Dist. No. 230,991 F.2d 1316,
1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue
of material fact, see Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir. 1999) (citation
omitted). A genuine issue of material fact exists when “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). Mere “metaphysical doubt as to the material facts” does not amount to a
genuine issue for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The Court views the record and all reasonable inferences drawn therefrom in
the light most favorable to the nonmovant. See Fed R. Civ. P. 56(c); see also Foley 359 F.3d at
928. However, the Court is “not required to draw every conceivable inference from the record.”
Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir. 2004) (quoting McCoy v. Harrison, 341 F.3d 600,
604 (7th Cir. 2003)). Inferences that are supported by only speculation or conjecture will not

defeat a summary judgment motion. McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th


Around 4:00 in the morning, the cell doors were opened for breakfast. (/d. 22.)
Apparently, by this time Harris was no longer waiting outside Plaintiff's cell. Although Riley
was nervous about leaving her cell, her status as a “team leader” required her to leave the cell to
complete certain paperwork. (/d.) Upon returning from breakfast, Riley’s cellmate informed her
that Harris was outside the door waiting for her. (/d. 4 23.) Harris then entered Riley’s cell and
began yelling at her; the confrontation in the cell culminated with Harris swinging at Plaintiff,
but Harris only struck a glancing blow. (/d. 424.) Riley was able to get past Harris, escape the
cell, and enter the dayroom. (/d. § 25; D.E. 29 4 16.)

Neither Officer Barksdale nor Officer Vargas were in the dayroom, but Officer Vargas
was located in the interlock, which is adjacent but separate to the dayroom—with a large, solid
door separating the two. (D.E. 29 Jf 18-19; D.E. 30 § 25.) Apparently this door has some
amount of glass in it such that someone inside the interlock can look into the dayroom. (D.E. 30,
Ex. A at 46.) Riley went to the door separating the interlock from the dayroom and waived her
arms at Vargas, trying to get her attention. (/d. | 25.) She also began shaking the door and
yelling, “Please, let me out of here.” (/d.) (It is unclear what this door specifically looks like or
how likely it was, if it all, that Vargas could hear the pleas, but this ambiguity cuts against the
defendant/non-movants at this stage of the litigation.)

While Riley was facing the door, Harris approached her from behind and beat Riley
furiously, until she ultimately lost consciousness. (/d. {§ 26-27; D.E. 29 § 18.) The beating may
have involved up to twenty blows. (D.E. 30 4 27.) A prison official, a captain, soon arrived on
the scene and had Plaintiff taken to the Division 3 medical unit. (D.E. 29 4 20.) Apparently,

Riley suffered damage to her face and eye and has suffered blurred vision as a result of the


Precedent teaches that the Constitution imposes upon prison officials the duty to “take
reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. at 832
(quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)); see also Mayoral, 245 F.3d at 938. In
particular, this duty requires prison officials “to protect prisoners from violence at the hands of
other prisoners.” Farmer, 511 U.S. at 833 (internal quotations omitted). To establish a failure to
protect claim, a plaintiff-inmate must show that (1) “he is incarcerated under conditions posing a
substantial risk of serious harm,” and (2) defendant-officials acted with “deliberate indifference”
to that risk. Id. at 834; see also Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005).

The first prong of a failure-to-protect claim—considered the objective prong—requires a
plaintiff to allege that “he is incarcerated under conditions posing a substantial risk of serious
harm.” Farmer, 511 U.S. at 834. To satisfy this prong, a plaintiff must “allege not only that he
or she experienced, or was exposed to, a serious harm, but also that there was a substantial risk
beforehand that serious harm might actually occur.” Brown, 398 F.3d at 910. Under this
standard, precedent teaches that a beating suffered at the hands of a fellow detainee “constitutes
serious harm,” as “[bJeing violently assaulted in prison is simply not ‘part of the penalty that
criminal offenders pay for their offenses against society.’” /d. at 910-911 (quoting Farmer, 511
USS. at 834).

To meet the second, subjective prong of a failure to protect claim, “a plaintiff must
establish his custodians’ deliberate indifference to that substantial risk of serious harm. As stated
in Farmer, ‘a prison official cannot be found liable under the Eighth Amendment . . . unless the
official knows of and disregards an excessive risk to inmate health or safety; the official must

both be aware of the facts from which an inference could be drawn that a substantial risk of


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERIN RILEY,
Plaintiff,
No. 03 C 5868
Judge Mark Filip

OFFICER JEAN BARKSDALE AND
OFFICER VARGAS,

Oe)

Defendants.
MEMORANDUM OPINION AND ORDER
Erin Riley (“Riley” or “Plaintiff’) brings this action against Officers Jean Barksdale
(“Barksdale”) and Vargas (“Vargas”) (collectively, “Defendants”). Plaintiff filed a two count
complaint (D.E. 1) that charges Defendants in their individual capacities with violating her rights
by (1) being deliberately indifferent to Plaintiffs safety during her incarceration at the Cook
County Jail (“Count I”); and (2) failing to provide her with appropriate medical care in a timely
manner (“Count II”).! Defendants have moved for summary judgment (D.E. 28). As explained
below, Defendants’ motion is denied.
1. FACTS
A. Preliminary 56.1 Issues
The relevant facts are taken from Defendants’ Local Rule 56.1 (“L.R. 56.1”) statement
of facts and exhibits, Plaintiff's response to Defendants’ statement of facts, Plaintiff's L.R. 56.1
statement of facts, and Defendants’ response to Plaintiff's statement of facts. The Seventh

Circuit has “consistently and repeatedly upheld a district court’s discretion to require strict

' The various docket entries in this case are cited as “D.E. _.


18.) Nor is there any evidence (such as even an affidavit from Vargas) to suggest that Vargas
was unaware of Riley’s plight; there has been no indication from Defendants that Vargas did not
or could not hear or see Riley’s pleas for help.

Next the Court considers whether sufficient facts exist to conclude either Vargas or
Barksdale disregarded the risk to Riley. Vargas has provided no indication that if she knew of
the risk—and the Court finds there is a material issue of fact as to whether she did—she did not
disregard that risk. In other words, Riley’s testimony that Vargas just stared at her and did
nothing while Riley requested assistance and was struck repeatedly by Harris is at least sufficient
to create a question of fact to be determined by a jury.’

There also is evidence that, if credited, would indicate that Barksdale disregarded the risk
to Riley. In the hours before Riley was beaten, Barksdale did keep Harris away from Riley’s cell
door once, when she led Harris away from the front of Riley’s cell at approximately 11:15 p.m.
(D.E. 30 ff 10-16.) However, Barksdale apparently also allowed Harris to wait, unsupervised,
outside of Riley’s door, in violation of jail rules concerning procedures at night. (/d. {§ 6-7.)
Moreover, the facts indicate that Barksdale knew that Harris wanted to assault Riley, and she also

knew exactly when Harris planned to attack her. (/d. ] 16.) Unlike many—arguably most—of

2 Some courts have held that prison guards have no duty to intervene in an assault of an
inmate when intervention would place the guards in danger of physical harm. See, e.g., Prosser
v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995); Lacy v. Berge, 921 F. Supp. 600, 609 (E.D. Wis.
1996). This argument is inapposite to the instant case. First and foremost, Defendants have not
offered this argument in their abbreviated briefing concerning Vargas’s involvement in the case,
thus the argument is waived, at least for purposes of summary judgment. Second, nothing in the
record presented, nor in the briefing, indicates that Vargas would have placed herself in harm’s
way by providing Riley assistance, specifically a means of escaping the day room. There is,
however, testimony that if credited could suggest that Vargas could have ended the fight sooner.
Compare Lacy, 921 F. Supp. at 609.

12


take the extraordinary step of sitting unsupervised at length in front of the door to Riley’s cell
less than an hour after Harris had threatened Riley and while prisoners were supposed to all be in
their cells. (/d. § 6-7, 18-20.) In fact, Barksdale even checked on Harris’s well-being during her
unsupervised time in front of Riley’s cell. (D.E. 30 {{ 18-20.) Most importantly, Harris
informed Barksdale directly that she intended to harm Riley—she even told Barksdale exactly
when she intended to do so. (/d. § 15.) Barksdale had knowledge of the heightened risk to Riley
directly “from the horse’s mouth,” and as such satisfies the first part of the deliberate indifference
test.

Vargas, meanwhile, has not provided the Court with enough information to conclude that
there is no material issue of fact as to her knowledge (or lack of knowledge) of an imminent
threat to Riley’s physical safety and Vargas’s ability to assist Riley. Riley’s account, if credited,
included testimony that indicated that Vargas would have been able to see (and likely hear)
Riley’s calls for help. She also should have been able to see (and possibly hear) Melissa Harris
pummel Erin Riley, punching her at least twenty times. (Jd. § 27.) The door separating the
interlock—where Vargas was located when Riley attempted to escape from Harris’s impending
attack—from the day room had glass in it in such that someone situated inside the interlock could
see into the day room. (/d., Ex. A at 46-47.) Moreover, Riley indicated that Vargas saw her
asking for help, and Vargas “just [sat] there looking at me.” (Jd. at 46.) Defendants have offered
no evidence to contradict the logical conclusion from this information that an issue of fact exists
as to whether Vargas had knowledge of Riley’s distress. In fact, Defendants only assert that the
door separating the interlock from the day room is a “big solid door,” without providing any

information about the ability to see or hear activities on the other side of the door. (D.E. 29

11


Cir. 2004). The party opposing summary judgment may not rest upon the pleadings, but must set
forth specific facts showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 248.
There is no genuine issue for trial unless there is “sufficient evidence favoring the non-moving
party for a jury to return a verdict for that party.” Jd.

Ili. DISCUSSION

Technically speaking, whether a claim such as the one in the instant case is predicated on
the Fourteenth Amendment’s Due Process Clause or the Eighth Amendment depends on whether
the plaintiff is a pretrial detainee or already has had her case adjudicated and is serving her
sentence. There is, however, “little practical difference between the two standards.” Mayoral v.
Sheahan, 245 F.3d 934, 938 (7th Cir. 2001) (internal citations omitted). Thus, the standard set
forth in Farmer vy. Brennan, 511 U.S. 825 (1994), is applicable to this case. See Mayoral, 245
F.3d at 938.

Plaintiff claims that Defendants failed to protect her from an assault and resultant harm.
Specifically, she maintains that Barksdale failed to protect her from a known, foreordained harm
from Melissa Harris. The allegation against Vargas is more appropriately characterized as a
failure to intervene, in that Vargas allegedly actively ignored Riley’s pleas for help and stood by
while Harris pummeled Riley. See, e.g., Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
The standard the Court applies is the same in both cases. See, e.g., id. (applying Farmer standard
in a failure to intervene case); Velez v. Johnson, 395 F.3d 732, 735 (7th Cir. 2005) (applying
Farmer standard in a Barksdale-like failure to protect case); Pharaoh v. Manning, 92 C 7491,
1996 WL 82464, at *2 (N.D. Ill. Feb. 23, 1996) (Holderman, J.) (applying Farmer standard for a

similar failure to intervene case).


Personal knowledge “may include reasonable inferences,” but those inferences “must be
grounded in observation or other first-hand personal experience. They must not be flights of
fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience.”
Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003). This objection is overruled: paragraph 3 is
admitted as to Harris’s reputation of bullying inmates, as is paragraph 28. Officer Bibbs certainly
had personal knowledge as to Harris’s reputation (as related in paragraph 3), and Plaintiff clearly
had personal knowledge about the extent of her injury and can testify as to the extent of the
injury she suffered at the hands of Harris (as addressed in paragraph 28).

B. Background Facts

By all accounts, this case in many respects presents a common deliberate-indifference-
claim scenario where a plaintiff-detainee seeks to prove that a defendant-custodian failed to take
protective action after the plaintiff-detainee complained of a feared threat posed by a specific
person. See Brown v, Budz, 398 F.3d 904, 914 (7th Cir. 2005). Plaintiff, having been charged
with possessing a controlled substance, was detained at the Cook County Jail for an
undetermined period of time beginning in July 2002, including during all dates relevant to the
instant opinion. (D.E. 29 §§ 3-4; D.E. 30 4 1.) She resided in Division 3, inside Tier A-3. (D.E.
2995; D.E. 3042.) Melissa Harris (“Harris”) also was housed there. (D.E. 29 § 7.) Harris had
a reputation for bullying and assaulting inmates. (D.E. 30 3.) Harris and Riley did not manifest
any palpable animosity towards each other for the first several months that Riley was at the Cook
County Jail. (D.E. 29 { 8.) Eventually, though, Harris became very angry with Riley, possibly
because Harris believed Riley had “book[ed]” her (i.e., snitched on her) to the officials, even

though Plaintiff had never had any fight or filed any complaint or grievance against Harris prior


paragraph 23 (for the purpose of establishing that Plaintiff's grievance charged Harris with
battery). (All of these paragraphs and statements were properly supported by evidence.) For
paragraphs 10, 15, 21 (for the purpose of determining whether a nurse checked Plaintiff's eye at
the dispensary), 22 (as to the month and year), and 23 (as to the charge of assault), where the
cited pages undermined or did not establish Defendants’ statements of fact, the statements of
facts are deemed to have been properly disputed by Plaintiff.

Defendants also failed to comply with Local Rule 56.1 in several of their responses. In
several instances throughout their Response to Plaintiff's Additional Statement of Facts (D.E.
32), Defendants’ denial was general and unsupported. Specifically, Defendants repeatedly stated
that they “deny the facts” in a particular paragraph and further asserted, without explanation,
“{lJack of foundation.” (/d. Jf 12, 16, 17, 18, 19, 21, 29, 30.) In those instances where the
foundational objection appeared to have merit, the fact at issue was deemed to be disputed. (/d.
§ 29-30.) However, in others, the Court was unclear as to why a “lack of foundation”
supposedly existed, and Defendants provided no further explanation nor filed any evidentiary
materials. Defendants also did not file a motion to strike. As such, the denial does not “clearly
create a genuine dispute.” Malec, 191 F.R.D, at 584. Consequently, the Court deems admitted
for purposes of L.R. 56.1 the facts Defendants purported to deny in paragraphs 12, 16, 17, 18, 19,
20, 21.

Similarly, the authority Defendants cite for disputing paragraphs 13 and 25 is insufficient
for the Court to conclude the facts are disputed, and those paragraphs also are admitted. Finally,
Defendants object to paragraphs 3 and 28 pursuant to, the Court suspects, Federal Rule of

Evidence 602, as a result of Plaintiff's claimed lack of personal knowledge. (D.E. 32 §f 3, 28.)


compliance” with L.R. 56.1. See Bordelon v. Chicago Sch. Reform Bd. Of Trs., 233 F.3d 524,
527 (7th Cir. 2000); see also Malec v, Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000) (failure to
adhere to L.R. 56.1 requirements, including citation to specific evidentiary materials justifying
denial, is equivalent to admission). Where the parties disagree over relevant facts, the Court sets
forth the competing versions. In addition, the Court, as it must, resolves genuine factual
ambiguities in Plaintiff's favor. See Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir.
2004). In particular, this strict compliance means that the Court only considers those facts or
additional facts that comply with L.R. 56.1.

Specifically, both parties in the instant case have, at times, failed to comply with the
tenets of Local Rule 56.1(b)(3)(A) in their respective responses to the opposition’s statements of
facts or additional facts. (D.E. 30, 32.) In those instances where the parties failed to comply, the
Court has deemed admitted those particular statements of facts that have complied with Local
Rule 56.1, where they are properly supported with competent evidence. See Malec, 191 F.R.D.
at 584 (“[A] nonmovant’s failure to adhere to these requirements is equivalent to admitting the
movant’s case.”). When denying a movant’s factual allegations, “a general denial is
insufficient.” Jd. Rather, “the nonmovant must cite specific evidentiary materials justifying the
denial. If the cited material does not clearly create a genuine dispute over the movant’s allegedly
undisputed fact, the nonmovant should provide an explanation.” Jd.

Plaintiff, by virtue of her insufficient, general denials—i.e., where Plaintiff simply stated
that she “denies the facts as stated” and cited to the same portion of the record that Defendants
cited in their 56.1(a)(3) statement—is deemed to have admitted paragraphs 12, 13, 16, 17, 20, 21

(for the purposes of determining that Plaintiff was transported to Cermak Hospital), and


the prisoner protection cases the Court has encountered, see, e.g., Butera v. Cottey, 285 F.3d 601
(7th Cir. 2002); Jelinek v. Greer, 90 F.3d 242 (7th Cir. 1996); Perez, 2001 WL 844496, the facts
in the instant case, as taken in the light most favorable to Plaintiff, create a genuine issue of fact
as to whether Officer Barksdale had notice of a specific and heightened threat to Riley. In
addition, there is evidence that suggests that Harris had a reputation for violence; there also is no
evidence, for example, that Harris routinely made baseless threats or that threats of violence were
so commonplace in the women’s area of the Cook County Jail that one might reasonably not
consider them, without more, to be meaningful or noteworthy.

On the facts presented, the Court also does not believe the case should be taken from the
jury simply because Riley did not actually complain, request assistance, or otherwise vocalize the
risk to her or her desire for an intermediary. It was apparent to Barksdale (at least crediting
Plaintiff's evidence) that a conflict existed between Riley and Harris, and that Harris intended to
escalate the severity of the conflict on the morning of October 4, 2002. Compare Velez, 395 F.3d
at 736. Precedent teaches that “[w]hat matters is that [Barksdale] was aware of a serious risk of
harm in some form” by virtue of Harris’s statements, at a specific time, that actually occurred,
and Barksdale arguably did nothing to prevent it. /d.

In light of Plaintiff's proffered evidence and Defendants’ failure to demonstrate
sufficiently the absence of a material issue of fact as to Defendants’ deliberate indifference

toward Riley’s safety, the Court denies Defendants’ motion for summary judgment.’

> Defendants offered no argument as to why Count II, which alleges a failure to provide
medical care, should be dismissed. See generally Estelle v. Gamble, 429 U.S. 97, 103-05 (1976)
(holding that Eighth and Fourteenth Amendment impose a duty upon the states to provide
adequate medical care to incarcerated individuals); Walker v. Benjamin, 293 F.3d 1030, 1036-37
(7th Cir. 2002) (deliberate indifference to prisoners’ serious medical needs violated the Eighth

13