Kemp v. Fulton Cnty.

27 F.4th 491

Gregory KEMP, Plaintiff-Appellant,

v.FULTON COUNTY, et al., Defendants-Appellees.

No. 21-1079

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2021

Decided February 25, 2022

James P. LeFante, Attorney, LeFante Law Offices, P.C., Peoria, IL, for Plaintiff-Appellant.

Daniel T. Corbett, Attorney, Jackson Lewis P.C., Chicago, IL, Bhairav Radia, Attorney, O'Halloran, Kosoff, Geitner & Cook, LLC, Northbrook, IL, for Defendants-Appellees.

Before Kanne, Rovner, and Wood, Circuit Judges.

Wood, Circuit Judge.

While Gregory Kemp was confined at the Fulton County Jail awaiting his trial, he became involved in a melee with three other detainees. Kemp cried out for help, but no one heard him or came to his aid until the beating was over. He suffered serious injuries from the incident.

Believing that the Jail's failure to protect him from the attack violated his rights under the Fourteenth Amendment to the U.S. Constitution, Kemp brought this action under 42 U.S.C. § 1983 against Fulton County Sheriff Jeff Standard, Sergeant Christopher Ford, and Officer Sheldon Burget. After discovery, the district court granted defendants' motion for summary judgment. We affirm.

I

A

Because the case was resolved on summary judgment, we view the facts in the light most favorable to Kemp, the nonmoving party. See Dixon v. Cnty. of Cook , 819 F.3d 343, 346 (7th Cir. 2016). The account that follows reflects this perspective.

As of September 5, 2016, Kemp and three others—Bradley Dearborn, Edwin Galvez, and Luis Lind-Enriquez—were all pretrial detainees at the Jail. They were housed in Cell Block G, where they had lived together without incident for several months. That streak of good behavior came to an end when Kemp had an argument with Galvez. The altercation led Dearborn to threaten to "get [Kemp]." Shortly after Dearborn issued this threat, defendant Sheldon Burget, a correctional officer on duty during the incident, made his rounds through the common area. Kemp considered telling Burget about Dearborn's statement, but he chose not to do so, in order to avoid being seen as a "snitch." Instead, Kemp made the unfortunate decision to confront Galvez and Dearborn violently. Kemp threw the first punch, and Dearborn and Galvez responded by beating him.

Jail surveillance video shows that Lind-Enriquez soon joined in the beating; after a few hits, he went to his cell to get a sock stuffed with a hard "paintball," made (as the name suggests) from dried paint. Back in the melee, Lind-Enriquez began striking Kemp with the makeshift weapon. Lind-Enriquez can be seen on the video throwing a toilet plunger at Kemp, though he missed. Kemp yelled for help, but neither Burget nor anyone else responded.

That beating lasted only a few minutes. Afterwards, the video shows Kemp cleaning the common area with soap and bleach while Lind-Enriquez washed blood off of his body. Kemp testified that the others told him they'd "all be cool." But about 20 minutes later, tensions flared again, Lind-Enriquez attacked Kemp a second time, and Dearborn and Galvez joined in. The second fight ended with Kemp lying motionless on the floor. Another correctional officer, Tiffany Williams, who was conducting her assigned rounds, stopped at the common area a few minutes after the second beating ended. Williams saw Kemp lying on the floor and called for emergency medical services. The medics responded about eight minutes later; they moved Kemp onto a stretcher and later sent him to the hospital.

As we said, Burget was patrolling the Jail as all this was unfolding. But, as he admitted during his deposition, he had about 60% hearing loss in one ear and about 40% hearing loss in the other. His physician had prescribed a hearing aid for one ear, but Burget stopped wearing it about six months before the September 5 incident and thus was not using it at the time of the fight.

Kemp speculates that if Burget had been wearing his hearing aid on the day of the attack, he would have heard Kemp's cries for help. But the record contains no evidence that would permit such a finding. Nothing indicates that Burget's hearing loss was severe enough to prevent him from hearing the commotion, or more generally from performing his job. Both parties agree that Burget frequently did hear fights, loud noises, and yelling while in the Jail. Kemp even testified that Burget had responded to his calls in the past. Similarly, the record lacks any evidence showing how much Burget's hearing aid improved his hearing, if at all.

Kemp, pointing to the Jail's logs showing the rounds covered by each guard, asserts that Burget was standing in a nearby hallway where someone with better hearing would have heard the sounds of a fight. But Burget's location during the beating was contested. Defendants admit that sound carries through the Jail, but they also offered evidence that the Jail was often noisy, making it difficult for guards to overhear what was happening in other parts of the building. At least three other Jail employees (correctional officer Williams and dispatchers Tanisha Bradford and Keith Wojtkiewicz) were also near the site of the brawl. Bradford and Wojtkiewicz (neither of whose auditory ability was challenged) deny hearing any telltale noise. Williams testified that she heard sounds of a fight only as she walked toward the Jail's G Block during her rounds. She described hearing the sound of "two people wrestling" and "stomping," but she denied hearing cries for help.

Neither Sheriff Standard nor Sergeant Ford was on the premises during the September 5 beating. Kemp contends, however, that they are personally responsible for what happened because they each knowingly allowed Burget to work as a corrections officer despite his diminished hearing. Standard and Ford deny knowing that Burget had a hearing impairment (or at least one that mattered). Kemp sees a disputed material fact on this point; he argues that Standard and Ford must have known about Burget's hearing problem because Burget previously had worked in the Jail as a dispatcher in 2007 or 2008. Burget was dismissed from that job because of "problems with [his] hearing." Sheriff Standard was aware of this when he later hired Burget. (The defendants assert that Burget was actually fired from the dispatcher position because of general incompetence, but we must credit the version that favors Kemp.)

B

Kemp filed this action against Standard, Ford, and Burget. His complaint also named Williams as a defendant, but he has abandoned his claims against her on appeal. He also joined Fulton County as a necessary party for payment of any settlement or judgment. See 745 ILCS § 10/9-102.

As we noted earlier, the district court entered judgment for the defendants. Kemp could not prevail against Burget, the court concluded, because nothing in the record would have put a reasonable guard on notice of a substantial risk of harm to Kemp. With respect to Standard and Ford, the court concluded that Kemp had failed to point to any evidence that would support a finding that they were aware of the degree of Burget's hearing loss or that Burget's hearing loss was causally linked to Kemp's injury. Kemp has appealed the judgments in favor of all three defendants.

II

We consider the correctness of a district court's grant of summary judgment independently, without any thumb on the scale in favor of the district court's assessment. Dixon , 819 F.3d at 346. Summary judgment is proper against a party who, after sufficient time for discovery, fails to show how a factfinder could find in his favor on an essential element on which the party would bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

We begin with Kemp's failure-to-protect claim against Burget, and then turn to the supervisory defendants. Incarcerated people have a clearly established right to be free from physical harm inflicted by others in the institution. See, e.g., Farmer v. Brennan , 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ("[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners."); Rice ex rel. Rice v. Corr. Med. Serv. , 675 F.3d 650, 668 (7th Cir. 2012) ("Jail officials have a duty to protect inmates from violent assaults by other inmates."). Correctional officials who are deliberately indifferent to inhumane conditions of confinement, including violence behind bars, may be held liable under 42 U.S.C. § 1983. See Rice , 675 F.3d at 665, 669 ; Guzman v. Sheahan , 495 F.3d 852, 857 (7th Cir. 2007).

A

Because Kemp was a pretrial detainee, his conditions-of-confinement claim arises under the Due Process Clause of the Fourteenth Amendment, which is governed by an objective standard. Hardeman v. Curran , 933 F.3d 816 (7th Cir. 2019). In contrast, those who are serving prison sentences after a trial must rely on the Eighth Amendment's bar on cruel and unusual punishment, which requires a showing of both an objectively unreasonable deprivation of rights and subjective deliberate indifference. The difference in standards stems from the fact that pretrial detainees remain entitled to the presumption of innocence, and so the Constitution protects them from any punishment for the acts that led to their detention. Miranda v. Cnty. of Lake , 900 F.3d 335, 350 (7th Cir. 2018).

The Supreme Court underscored the importance of the distinction between convicted inmates and those who are detained pending adjudication of their cases in Kingsley v. Hendrickson , 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). There it held that a pretrial detainee bringing an excessive-force claim under the Fourteenth Amendment need not satisfy the Eighth Amendment's subjective-intent standard.

While Kingsley was specifically about excessive-force claims, we have recognized that "[n]either the Supreme Court's logic nor its language" is limited to that context. Hardeman , 933 F.3d at 823. Recognizing...