In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2572

ROBERT KLEBANOWSKI,

Plaintiff-Appellant,

v.

MICHAEL F. SHEAHAN, Sheriff,

CALLIE BAIRD, HENRY TROKA, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 5878—Virginia M. Kendall, Judge.

____________

ARGUED DECEMBER 7, 2007—DECIDED SEPTEMBER 2, 2008

____________

Before EASTERBROOK, Chief Judge, and MANION and

KANNE, Circuit Judges.

MANION, Circuit Judge. While being held as a pre-trial

detainee in the Cook County Jail on a murder charge,

Robert Klebanowski suffered two attacks at the hands

of his fellow prisoners. Klebanowski claims that his

attackers were gang members. Asserting that prison

officials were deliberately indifferent to the risks caused

by housing an armed gang population with non-gang

members and periodically leaving them unsupervised,

Klebanowski filed suit pursuant to 42 U.S.C. § 1983 alleg-
2 No. 06-2572

1 These charges arose from a botched attempt by Klebanowski’s

associate, Robert Winters, to rob an off-duty lieutenant with

the Chicago police department, Gary Szparkowski. Id. at 815-16.

Klebanowski drove Winters to Szparkowski’s house, and

waited as the get-away driver. Winters took Szparkowski’s

wallet from him in the driveway of his house, but Szparkowski shot and killed Winters before he was able to get away.

Klebanowski was convicted of both charges following a

bench trial, and was sentenced to 20 years’ imprisonment for

the felony murder charge. Id. at 817.

ing a violation of his Fourteenth Amendment rights.

The district court concluded that there was no evidence

showing that any of the defendants was deliberately

indifferent to a known risk of substantial harm to

Klebanowski, and granted the defendants’ motion for

summary judgment disposing of the case. Klebanowski

appeals, asserting that there exist genuine issues of material fact regarding the risk he was subject to, and the

policies and conduct of the defendants in the face of that

risk. We affirm.

I.

Robert Klebanowski was arrested on February 7, 2002,

and charged with armed robbery and felony murder.

People v. Klebanowski, 852 N.E. 2d 813, 815 (Ill. 2006).1

 While

awaiting trial, Klebanowski was held at Division 11 of the

Cook County Jail. Division 11 is a maximum security

facility, and Klebanowski was held on the Division’s BC

tier, which housed accused murderers and had a high

concentration of gang members. Klebanowski denies

ever having been affiliated with a gang. On September 8,

2002, while in the day room with the rest of the inmates
No. 06-2572 3

on the tier, Klebanowski was approached by three gang

member inmates known as Little E, Count, and Yo-Yo.

They told Klebanowski they wanted a monthly payment

of twenty dollars from him in return for their protection.

When Klebanowski refused their offer, they pushed him

into an open cell and began to beat him. Following the

beating, Little E, Count, and Yo-Yo told Klebanowski

that they would beat him again whenever he refused to

pay them. They also told him they would kill him if he

said anything to the guards.

Following the attack, Klebanowski waited in his cell

for an officer to secure the inmates at the close of the

recreation period. While the exact nature of Klebanowski’s

injuries is not set forth in the record, they were serious

enough for the officer who came to close his cell to ask

what happened to him. Fearing for his safety, Klebanowski

told her he slipped in the shower. Klebanowski’s condition caused the officer to doubt his explanation, but she

said she would record his statement as given, and she

then took him to the health care unit. Klebanowski was

eventually sent to an outside hospital for stitches on his

ear.

Upon his return to the BC tier later that day,

Klebanowski approached a small group of correctional

officers congregated on his tier and requested that he

be moved to another location in the jail because he feared

for his life. The officers told Klebanowski they knew

what had happened to him, but that it would not help

to move him because the conditions were the same wherever he could be moved. Later that evening, Klebanowski approached another officer and again asked to be

moved for fear for his life. According to Klebanowski, this

officer told him he would not be moved because there
4 No. 06-2572

was no room anywhere else. The officer also allegedly

told Klebanowski that no one was moved on Sundays,

which day it happened to be, and that he did not feel

like doing any extra paperwork.

At about 9:15 p.m. on the following day, the correctional officer working Klebanowski’s unit announced

that he was going to open the cells and allow the inmates

a few minutes of free time before the 9:30 p.m. inmate

count and lockdown. The officer also allegedly announced that after he opened the cells he would be

leaving the deck, and would return in a few minutes.

Klebanowski exited his cell, and while he was watching

television, Little E, Count, and Yo-Yo approached him

from behind, and began to beat him again. This time,

however, Count pulled out a homemade knife, or

“shank,” that he had concealed in his pants and stabbed

Klebanowski on the left side of his stomach. Klebanowski

was stabbed two more times while being beaten, although

he was unable to see who stabbed him. Klebanowski

escaped, and he jumped over a railing from the top deck on

which they were fighting to a lower deck. As he jumped

over the rail, Count stabbed him again in the back of the

head. Klebanowski claims that once he reached the bottom deck, he ran to an exit and pressed a panic button.

There was no response for five minutes following

Klebanowski’s alarm, and he continued trying to evade

Little E, Count, and Yo-Yo. Klebanowski claims that

correctional officers finally entered the deck after he

waved at them through a large window. The officers

ordered the prisoners into their cells. After learning of the

nature of the attack on Klebanowski, officers searched

all of the cells on the tier and uncovered fourteen shanks.

Klebanowski spent two days in the hospital and had
No. 06-2572 5

2 Klebanowski voluntarily dismissed Ernesto Velasco on

February 9, 2005.

3 Klebanowski ultimately dismissed his claim against Clifford

Smith in his response to the defendants’ motion for summary

judgment after concluding that he was not involved in the

events giving rise to this suit.

his spleen removed as a result of the injuries he sustained during the attack.

Klebanowski filed suit in the district court on September 8, 2004. His original complaint stated claims against

Cook County Sheriff Michael Sheahan, Department of

Corrections Director Callie Baird, Baird’s predecessor

Ernesto Velasco,2

 Superintendent of Division 11 Henry

Troka, as well as “Unknown Corrections Officers 1, 2 & 3.”

Klebanowski filed an amended complaint on May 9,

2005, adding as a defendant correctional officer Clifford

Smith.3

 Finally, in his second amended complaint filed

July 14, 2005, Klebanowski named as defendants correctional officers William Scott, Jermaine Smith, and Rafael

Trevizo to replace the three unknown officers sued in his

earlier complaints. Sheahan, Baird, and Troka were sued

in their official capacities, and Scott, Smith, and Trevizo

were sued individually. Klebanowski brought suit under

42 U.S.C. § 1983 claiming that in three ways the defendants

violated his rights as protected by the Fourteenth Amendment: (1) by allowing his wing in Division 11 to be controlled by gang members and by not separating gang

members from non-gang members; (2) by allowing

gang members to keep weapons in their cells; and (3) by

leaving inmate wings entirely unsupervised regularly

for significant periods of time. Klebanowski alleged that

these were “de facto” policies of the defendants.
6 No. 06-2572

The defendants moved for summary judgment arguing

that they had not deliberately disregarded any known risk

to Klebanowski. The parties’ submissions to the district

court consisted of Klebanowski’s deposition describing

the circumstances of his attacks, Cook County Jail rules

and regulations governing detainees, a copy of the correctional officers’ job description, the statements of individual officers obtained during an investigation of the second attack, and an Incident Report compiled by the Cook

County Sheriff’s Department following the second attack.

The district court granted summary judgment in favor of

the defendants. Regarding Sheahan, Baird, and Troka,

the district court concluded that Klebanowski presented

no evidence of a policy, let alone a policy of deliberate

indifference to a known risk to Klebanowski. The district

court also concluded that the officers sued in their individual capacities were not on notice of a specific threat

to Klebanowski, and therefore had not disregarded any

known risk. On appeal, Klebanowski argues that there

existed genuine issues of material fact regarding whether the conditions of his incarceration posed a substantial risk of serious harm, and whether the defendants

acted with deliberate indifference to that risk.

II.

We review the district court’s grant of summary judgment de novo and draw all reasonable inferences in

Klebanowski’s favor. Butera v. Cottey, 285 F.3d 601, 605

(7th Cir. 2002). A motion for summary judgment should

be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there

is no genuine issue of material fact.” Fed. R. Civ. P. 56(c).

However, a “[p]laintiff may not rely only on the bare
No. 06-2572 7

assertions of his pleadings.” Keri v. Bd. of Trs. of Purdue

Univ., 458 F.3d 620, 651 (7th Cir. 2006) (citing Fed. R. Civ.

P. 56(e)) (emphasis added).

Because the events described above occurred while

Klebanowski was a pre-trial detainee, he correctly states

his claims under the Due Process Clause of the Fourteenth Amendment. Guzman v. Sheahan, 495 F.3d 852,

856 (7th Cir. 2007). “The protections for pre-trial detainees

[under the Fourteenth Amendment] are at least as great

as the Eighth Amendment protections available to a

convicted prisoner, and we frequently consider the standards to be analogous.” Washington v. LaPorte County

Sheriff’s Dep’t, 306 F.3d 515, 517 (7th Cir. 2002) (quotation

and citation omitted). It is well-settled that both Amendments impose upon prison officials a duty to protect

inmates from violent assaults at the hands of fellow

prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994); see

also Fisher v. Lovejoy, 414 F.3d 659, 661 (7th Cir. 2005)

(noting that the Fourteenth Amendment extends this

protection to pre-trial detainees). An official violates that

duty “only if he knows that inmates face a substantial

risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it.” Farmer, 511 U.S.

at 847.

Turning first to the claims against Sheahan, Baird, and

Troka, we recall that “[a]n official capacity suit is tantamount to a claim against the government entity itself.”

Guzman, 495 F.3d at 859. Klebanowski must therefore

establish that the deliberate indifference to which he was

subjected came about as a result of a custom or policy

established by the officials. See Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 650, 690-91 (1978); see also

Frake v. City of Chicago, 210 F.3d 779, 781 (7th Cir. 2000) (“A
8 No. 06-2572

plaintiff must show that municipal policymakers made

a deliberate choice among various alternatives and that

the injury was caused by the policy.”) (quotation omitted). Three forms of unconstitutional policies or customs

are recognized in this context:

(1) an express policy that, when enforced, causes a

constitutional deprivation; (2) a widespread practice

that, although not authorized by written law or express municipal policy, is so permanent and well

settled as to constitute a custom or usage with the force

of law; or (3) an allegation that the constitutional

injury was caused by a person with final policymaking authority.

Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003)

(quotation and citation omitted).

Klebanowski does not expressly invoke one of these

three policy types, arguing only that his attacks were

brought on by the three “de facto” policies of housing

gang members with non-gang members, allowing them

weapons, and periodically leaving them unattended.

However, the evidence in the record is insufficient to

establish the existence of any of the three types of policies

articulated in Palmer. Klebanowski submitted no evidence showing an express endorsement of the policies

he claims caused his injuries. Likewise, he offered no

evidence that any policymaker caused the circumstances

of which he complained, assuming those circumstances

were actually present in the jail.

Therefore, in order to succeed on his claims against

Sheahan, Baird, and Troka, Klebanowski needed to

show that the “de facto” policies he alleged were widespread practices in the jail. The only pieces of evidence
No. 06-2572 9

that would be material to showing a widespread practice are Klebanowski’s deposition wherein he describes

his attacks, and the Incident Report which revealed that

fourteen shanks were recovered after the cell search.

However, this evidence, standing on its own, is insufficient to establish the existence of a widespread practice.

See Palmer, 327 F.3d at 596 (“When a plaintiff chooses to

challenge a municipality’s unconstitutional policy by

establishing a widespread practice, proof of isolated acts

of misconduct will not suffice; a series of violations must

be presented to lay the premise of deliberate indifference.”). The record contains no evidence of any attacks

other than the two inflicted on Klebanowski. Additionally,

Klebanowski stated during his deposition that he told

officers on two occasions he would like to be moved

because he feared for his life, but he never told those

officers that he was being targeted by gang members

because of his non-gang member status. It was only

later when he filed his grievance that he disclosed the

facts of his assault by identifying his attackers and their

gang membership. There is, however, nothing in the record indicating that the prison officials had notice that

gang members were targeting non-gang members at the

time Klebanowski was attacked.

Regarding the fourteen shanks discovered following

the cell search, Klebanowski asserts that their presence

indicates a policy of not conducting regular searches

because that number of homemade knives “does not

show up overnight.” However, to raise a genuine issue

of material fact, Klebanowski would need some further

evidence to support his assertion that finding fourteen

shanks in a search is indicative of an official policy of

deliberate indifference. The record is silent regarding
10 No. 06-2572

the frequency with which searches were conducted, the

nature and availability of the materials from which shanks

are made, the time it takes to fashion a shank, and the

official defendants’ knowledge of any of those factors.

Likewise, assuming the inmates were left unattended

on the night of September 9 for the duration of time

Klebanowski states they were, there is no evidence suggesting that they were similarly left unattended any other

time.

As the district court noted, Klebanowski “has produced

no evidence about any incident other than his own, . . .

about any knowledge on the part of any official about

general gang affiliation in the jail, or about any steps

taken or not taken to prevent violence between gang

members and non-gang members in the jail.” We agree

with the district court, and conclude more broadly that

there is no evidence indicating that Sheahan, Baird, or

Troka enacted or otherwise facilitated any of the three

“de facto” policies alleged by Klebanowski. Accordingly,

the district did not err in entering summary judgment in

their favor.

As they did before the district court, the defendants

argue that Klebanowski’s claims against the individual

defendants are time-barred because he was attacked in

September 2002, but did not identify the correctional

officers he believed were deliberately indifferent until

the filing of his second amended complaint on July 14,

2005. Under normal circumstances, the defendants’ argument would be meritorious. Klebanowski’s claims would

not relate back to the date he initiated this action because

he did not then know the identity of the officers.

Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993). The

statute of limitation for his claims is two years and he
No. 06-2572 11

did not name (and thus notify) the individual defendants

within that time period. See 735 ILCS 5/13-202; see also

King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913

(7th Cir. 2000) (noting that the statute of limitations for

§ 1983 actions is determined by the statute of limitations

for personal injury actions in the state where the incident

occurred).

Here, however, Klebanowski claims to have filed a

prison grievance on September 18, 2002, and another one

three months later as a form of appeal because he was

dissatisfied with the disposition of the first. After hearing

nothing for almost two years, he filed this action on

September 8, 2004. The defendants did not contest

Klebanowski’s description of the status of the grievance

process. This could be a problem for them because the

Illinois statute of limitations is tolled during the pendency

of those proceedings. Johnson v. Rivera, 272 F.3d 519,

522 (7th Cir. 2001). Klebanowski’s factual assertions

regarding his grievance are the only such facts in the

record. Because we take them as true, they might raise

new issues not addressed by the parties. Did Klebanowski actually complete the grievance process when he did

not receive a disposition? Was a grievance process even

available to Klebanowski given the inordinate time he

alleges passed without receiving a disposition? See

Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (imposing on prisoners a duty to exhaust administrative remedies only where those remedies are “available”).

We need not resolve these issues. We may affirm summary judgment on any basis supported in the record.

Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681 (7th

Cir. 2007). Like the district court, we will bypass the

statute of limitations questions and consider the merits
12 No. 06-2572

of Klebanowski’s claims against the individual defendants.

To establish deliberate indifference on the part of the

defendants sued individually, Klebanowski needed to

show that the officers acted with the equivalent of criminal recklessness, in this context meaning that they

were actually aware of a substantial risk of harm to

Klebanowski’s health or safety, yet failed to take appropriate steps to protect him from the specific danger.

Guzman, 495 F.3d at 857. Klebanowski testified during

his deposition that he told officers twice on September 8

that he was afraid for his life and he wanted to be transferred off the tier. Those statements, and the officers’

knowledge of the first beating, are the only pieces of

evidence in the record that can assist Klebanowski in his

attempt to show that the officers were aware of any risk

to him. We have previously held that statements like

those made by Klebanowski are insufficient to alert officers

to a specific threat. Butera, 285 F.3d at 606 (deeming

insufficient to establish deliberate indifference statements by a prisoner that he was “having problems in the

block” and “needed to be removed”). In Butera, we

deemed the inmate’s statements insufficient to give

notice to the officers because they did not provide the

identities of those who threatened the inmate, nor state

what the threats were. Id.

The facts of this case make clear our reason for requiring more than general allegations of fear or the need

to be removed. By Klebanowski’s own testimony, the

officers knew only that he had been involved in an altercation with three other inmates, and that he wanted a

transfer because he feared for his life. He did not tell

them that he had actually been threatened with future

violence, nor that the attack on September 8 was inflicted
No. 06-2572 13

4 Because he is the non-moving party, we accept as true

Klebanowski’s assertion that the attacks were gang-related,

even though there was nothing about his interactions with

Count, Yo-Yo, and Little E indicating that they targeted

him because he did not belong to a gang. Later on he indicated

that the first beating occurred because he refused to pay

them twenty dollars for “protection.”

by gang members because of his non-gang status.4 Without these additional facts to rely on, there was nothing

leading the officers to believe that Klebanowski himself

was not speculating regarding the threat he faced out of

fear based on the first attack he suffered. This lack of

specificity falls below the required notice an officer must

have for liability to attach for deliberate indifference.

Because the officers did not have notice of a specific

threat to Klebanowski, the district court did not err

in concluding that they were not deliberately indifferent

to a risk posed to him, and it correctly entered summary judgment in their favor.

III.

We conclude that Klebanowski failed to put forth any

evidence creating a genuine issue of material fact regarding the defendants’ liability for deliberate indifference to his rights. First, there was no indication that

the defendants sued in their official capacities were

responsible for policies that subjected Klebanowski to a

substantial risk of harm. Second, there is no evidence

indicating that the defendants who were sued in their

individual capacities were aware of a substantial risk of

harm to Klebanowski. The defendants were entitled to
14 No. 06-2572

summary judgment on Klebanowski’s claims, and the

district court’s entry of judgment in their favor is therefore AFFIRMED.

9-2-08