MARVIN THOMAS, Plaintiff-Appellant, v. THOMAS J. DART, et al., Defendants-Appellees.
No. 21-2458
United States Court of Appeals For the Seventh Circuit
ARGUED FEBRUARY 10, 2022 — DECIDED JULY 12, 2022
Before MANION, KANNE*, and JACKSON-AKIWUMI, Circuit Judges.
Because the amendment Thomas sought would have been futile, and because no bias against Thomas can reasonably be inferred from the district court’s adverse rulings, we affirm.
I. Background
In June 2015, Thomas was arrested and transported to the Jail. Although released from custody the following month, he was indicted and reincarcerated in September 2015. On January 5, 2016, he was injured when another pretrial detainee assaulted him. He was treated and transferred to a different facility about three weeks later on January 29.
Thomas filed the original complaint in this case in June 2017. The complaint alleged that, prior to his initial arrest, Thomas had been diagnosed with PTSD stemming from an assault he had suffered years earlier. In October 2015, after his reincarceration, he told corrections officers guarding the unit
Thus began a series of motions to dismiss, judicial rulings, and amended complaints. Meanwhile, discovery on some of the claims began. After Thomas filed a second amended complaint that still had not named the corrections officers more than two years after the suit was initiated, the district court sensed the need for pellucid direction. In December 2019, it advised Thomas that he could “amend the complaint only to identify the individual defendants involved in the failure to protect claim” and that the court would “not entertain any other amendments.”
Despite the district court’s clarity, Thomas did not follow its instructions. In January 2020, he sought leave to file a third amended complaint, which forms the crux of the present appeal. He finally named three Jail corrections officers who guarded his housing unit and purportedly failed to protect him from being assaulted. But Thomas also attempted to bring six new claims against two new defendants: Jail clerks who conducted intake evaluations when Thomas arrived at the facility in June 2015 and again in September 2015.
These facts, Thomas said, meant his original failure-to-protect theory was “incorrect.” The corrections officers, it turns out, “did not know about the plaintiff’s PTSD, because the intake clerks took steps, unbeknownst to the plaintiff, to conceal that information” from the officers. The proposed third amended complaint added three section-1983 claims against each intake clerk, alleging failure to protect from physical injury, violation of the Eighth Amendment’s ban on cruel and unusual punishment, and violation of due process under the Fourteenth Amendment. Each count was predicated on the clerks “ignoring” or “changing” Thomas’s answers on the intake forms regarding PTSD, “resulting in the correctional officers being unaware of the plaintiff’s special need for protection.”
The district court denied the motion to amend. The court thought Thomas’s newest theory was inconsistent with positions he had taken since the suit was filed years earlier. In the circumstances, the district court concluded, justice did not
Thomas filed a fourth amended complaint that complied with the court’s December 2019 instructions. Another motion to dismiss duly followed. Thomas asked the district court to reconsider its order denying the addition of the intake clerks. He argued that he could not have asserted liability against the intake clerks until he received the purportedly falsified intake forms as part of discovery in October 2019.
Again, the district court was not persuaded that the amendment was justified. Thomas’s new allegations, the court thought, did not plausibly suggest how the intake clerks were involved in the alleged failure to protect Thomas from a fellow inmate’s attack. Nor was there any allegation that corrections officers had reviewed or been shown the intake forms. Thus, the court reasoned, there was no plausible link between the contents of the intake forms and the assault. In fact, the court noted, the September 2015 intake form did document that Thomas suffered from mental health issues. So, even if a corrections officer guarding Thomas’s unit had looked at his intake form, he would have seen that documentation.
Eventually, all of Thomas’s operative claims were either dismissed or resolved against him on summary judgment, including the failure-to-protect claims against the corrections officers guarding his Jail unit. This appeal followed.
II. Analysis
The scope of Thomas’s appeal is limited. He does not challenge the district court’s disposition of the claims against Sheriff Dart, the county, or the corrections officers. Rather, he
A. Leave to Amend
Generally, a party has the right to “amend its pleading once as a matter of course.”
A court “should freely give leave when justice so requires.”
Amendment is futile when it seeks to add a new claim that does not allege a viable theory of liability. See Gandhi v. Sitara Capital Mgmt., LLC, 721 F.3d 865, 868–70 (7th Cir. 2013). Because futility—essentially failure to state a claim—is a legal question, our abuse-of-discretion review includes de novo consideration of the issue. Sandy Point Dental, P.C. v. Cin. Ins. Co., 20 F.4th 327, 335 (7th Cir. 2021). As explained below, amendment would have been futile because Thomas could not plausibly allege that reasonable officers in the intake clerks’ positions would have known about a specific substantial risk to Thomas at the time of their purportedly wrongful conduct.2
But that standard changed after Kingsley v. Hendrickson, 576 U.S. 389 (2015). There, the Supreme Court held that a pretrial detainee asserting an excessive-force claim did not need to allege that a defendant was subjectively aware that the force he used was excessive. Rather, he need only allege that the force was objectively unreasonable. Id. at 396–97. We have concluded that Kingsley‘s objective-unreasonableness standard applies to other Fourteenth Amendment claims by pretrial detainees, including failure-to-protect claims. Kemp, 27 F.4th at 495.
Now, to state a viable failure-to-protect claim under the Fourteenth Amendment, a pretrial detainee must allege: (1) the defendant made an intentional decision regarding the conditions of the plaintiff’s confinement; (2) those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant did not take reasonable available measures to abate the risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved, making the consequences of the defendant’s
The third element requires an allegation that a specific defendant “was on notice of a serious risk of harm” to the detainee. Id. at 497. Put another way, it must be plausibly alleged that a reasonable officer in a defendant’s circumstances would have appreciated the high degree of risk the detainee was facing. Id.; see also Westmoreland v. Butler County, 29 F.4th 721, 730 (6th Cir. 2022) (“A pretrial detainee need not prove subjective elements about an officer’s actual awareness of the level of risk, but he must prove the officer was more than merely negligent; the officer must have acted with reckless disregard in the face of an unjustifiably high risk of harm.” (internal quotation marks omitted)); Castro, 833 F.3d at 1072 (“The jury here found that the officers knew of the substantial risk of serious harm to Castro, which necessarily implies that the jury found that a reasonable officer would have appreciated the risk.”).
In Kemp, for example, we explained that there was no evidence that defendants “should have been on notice of a substantial risk to Kemp’s safety” because “he never reported his verbal disagreement” with—“or the ensuing threats” from—the three inmates who later attacked him and, “prior to the beating, all four men had cohabited peacefully for months.” 27 F.4th at 497.
Thomas does not attempt to argue that the intake clerks were on notice of the risk posed by the particular inmate who ultimately assaulted him. Nor would such an allegation be plausible, since the first threat by that inmate—the first sign
But Thomas nevertheless maintains that he can allege a viable failure-to-protect claim under the following theory: (1) the intake clerks suppressed information about his mental condition and caused him to be placed in the general population rather than a medical unit; (2) being in the general population put him at substantial risk of suffering serious harm because his mental condition made him “vulnerable”; (3) the clerks “did not take reasonable measures to abate that risk by not over-riding [sic] the answers [he] had given … about his mental health”; and (4) by placing him in the general population, the clerks caused his injuries.
These allegations still do not state a viable claim. Under the second element, Thomas alleges that he was at substantial risk of being assaulted because he had PTSD and was housed in the Jail’s general population. And this is the risk Thomas suggests—though does not clearly assert—under the third element that reasonable officers in the intake clerks’ positions would have appreciated.
Without more, however, simply being housed in the Jail’s general population, even while suffering from PTSD, is not a particular enough risk in the failure-to-protect context. The unfortunate reality is that jails and prisons are dangerous places inhabited by violent people. See Grieveson v. Anderson, 538 F.3d 763, 777 (7th Cir. 2008). The constitutional expectation “is that guards act responsibly under the circumstances that confront them,” not that they anticipate every potential danger facing a detainee. Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004). As the Supreme Court cautioned in Kingsley, an assessment of objective reasonableness must be made “on
To be sure, the specific risk a reasonable officer would appreciate need not be uniquely associated with the plaintiff or his attacker. The risk can be based on “a victim’s particular vulnerability” (even though the identity of the assailant is not known before the attack), or it can be based on “an assailant’s predatory nature” (even though the identity of the victim is not known before the attack). Brown v. Budz, 398 F.3d 904, 915 (7th Cir. 2005); see also id. (noting that a risk can come from “a single source or multiple sources”). But either way, the risk must be somehow “specific to a detainee, and not a mere general risk of violence.” Id. at 909. Thomas cannot assert an appreciable risk of harm based solely on his placement in the Jail’s general population because the “general risks of violence in prison” confront virtually every detainee. See Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000).
Nor has Thomas offered a plausible reason why the intake clerks should have been on notice that placing him in the Jail’s general population with PTSD created a substantial risk. He does not suggest that his having PTSD provoked, encouraged, or made more likely his assault by another Jail inmate. And he does not suggest that the inmate who assaulted him had a known propensity for violence against detainees like Thomas. This case, then, resembles In re Estate of Rice, 675 F.3d 650 (7th Cir. 2012). There we held that a valid failure-to-protect claim was not alleged when a mentally ill detainee was assaulted by another inmate over the detainee’s hygiene problem because jail personnel—though aware of the hygiene problem—“had
Finally, Thomas asserts that the intake clerks were on notice of the substantial risk he faced having PTSD while in the general population because the Prison Rape Elimination Act (PREA) classified him as (in his words) “vulnerable” and because Cook County Department of Corrections General Order 24.14.8.0 mandated that he be screened for potential placement in a medical unit. We are unpersuaded.
In enacting PREA, Congress found that incarcerated individuals “with mental illness are at increased risk of sexual victimization.”
B. Purported Judicial Bias
There remains only Thomas’s suggestion of bias. He relies on
In Thomas’s view, bias was evident here because his attempt to bring new claims against new defendants was “ignored and dismissed without as much as a single mention in the court’s orders.” As a factual matter, two minute orders refute this assertion. But the main stumbling block for Thomas is a legal one. By itself, an adverse judicial ruling does not provide a valid basis for questioning a judge’s impartiality. Liteky v. United States, 510 U.S. 540, 555 (1994); United States v. Martin, 21 F.4th 944, 945 (7th Cir. 2021); see also United States v. Perez, 956 F.3d 970, 975 (7th Cir. 2020) (“In addition, a judge’s ‘ordinary efforts at courtroom administration’ or docket
Thomas’s attempt to glean bias from language in some of the district judge’s summary-judgment determinations is just the same argument in a different guise. And it, too, fails. For instance, he characterizes as “cavalier” the court’s determination that “no reasonable jury” could have found in his favor on an issue. That is not disdainful rhetoric; that is the legal standard for granting summary judgment. See, e.g., Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020). A “hypersensitive or unduly suspicious person” might sense partiality in these words, but an objective and thoughtful observer could not. Barr, 960 F.3d at 920.
The district judge, despite Thomas’s ever-changing complaint, managed this case with evident fairness.
III. Conclusion
The district court’s denial of leave to file the third amended complaint was not improper, and it is certainly not a valid basis to question the judge’s impartiality. The judgment is AFFIRMED.