*1 in- statutory thresholds whether mine To satisfied. been ranges have

creased attribute Blakely is to into more

read holding, its something beyond opinion other holdings the real to overthrow

decisions. will discombobulate

Today’s decision I trust docket.

whole criminal-law say something to will superiors

our this. Soon.

about RICCARDO,

Anthony Plaintiff-

Appellee, Defendant-Appellant. RAUSCH,

Larry

No. 02-1961. Appeals, Court

United States Circuit.

Seventh 22, 2003.

Argued Oct. 27, 2004. Feb.

Decided July

Amended

EASTERBROOK, Judge. Circuit Riccardo, of the Anthony an inmate Illinois, Correctional Center Centraba *3 his former a new cellmate after needed being housed complained about cellmate would Normally pairing with him. placement made Centralia’s have been 28, May office, evening of when the but and some inmates remained arrived of- regular placement after the unassigned Larry left, to Lt. the task fell ficers had Rausch, shift. serving the second who Juan Gar- Riccardo with Rausch matched cia, that should lasted pairing day officers on placement until the days la- matters. Two review shift could Riccardo, sexually assaulted ter Garcia § 42 Rausch under U.S.C. who sued Rausch had sub- juryA concluded that pun- and unusual jected to cruel in com- and awarded million ishment $1.5 The district court damages. pensatory verdict, and judgment on entered this appeals. Rausch Ric is that argument lead-off His rem his administrative failed to use cardo 1997e(a), so, § 42 then U.S.C. If edies. Act, Reform Litigation Prison part though Riccardo even this suit forecloses incident and wants a discrete challenges damages money form —that relief— does in Illinois process administrative Nussle, 534 U.S. Porter v. provide. See (2002); L.Ed.2d 516, 122 Churner, v. Booth (2001). Riccardo 149 L.Ed.2d Chemerinsky (argued), Universi- Erwin grievance, an administrative Center, did file Los Law California ty of Southern (in late Febru it was too Rausch contends CA, Plaintiff-Appellee. Angeles, for a limit of six Illinois while sets ary of the (argued), Office Mary E. Welsh months) prosecute and asked state Div., General, Chi- Appeals Attorney Civil anything about do rather than Garcia IL, Defendant-Appellant. cago, system. classification Rausch FLAUM, Judge, and Chief Before rules state must follow Prisoners WILLIAMS,

EASTERBROOK grievances. and content time about the Judges. Circuit 52.4 McCaughtry, legal theories, partic-

See Pozo v. 286 F.3d 1022 articulate or demand (7th Cir.2002); Strong David, grievance 297 F.3d ular relief. All the need do is (7th Cir.2002). object intelligibly Failure to do this to some asserted short- (and exhaust) coming." Strong, means failure to use thus to 297 F.3d at 650. The available remedies. Yet the state's admin document that Riccardo filed is at the bor- apparatus reject intelligibility; imagine istrative did not Riccar- der of it is hard to grievance untimely; accepted do's as it much less that a could do and still grievance prison; yet grievance and denied the on the merits. alert this events, permit complain rape At the time of these Illinois that Garcia had committed a filing and that "the administration don't do there ted a after six months when the *4 good cause, job." generous had see 20 Ill. Admin. A construction of this (1997). grievance prison § Code 504.810 The official han would have induced the dling grievance good possibility guards must have found consider the prevented cause; anyway, that, could have this assault. So we we held in Pozo when filing timely conclude that Riccardo exhausted the ad- a state treats a as and re merits, judicia process. solves it on the the federal ministrative If Illinois wants ry second-guess action, grievances detailed, will not to be more it must grievance adopt appropriate regulations has served its function of and inform alerting inviting required the state and corrective what is of them. Ric- action. 286 F.3d at 1025. cardo is entitled to a decision on the merits of his constitutional claim. griev

As for the content of this enough, objective prevailed trial, ance: true its main was Because Riccardo we prosecuted. (Riccardo recap light to have Garcia the facts in the most favorable inadequate punishment position. anally raped deemed Garcia's to his Riccardo was prison system.) by County Jail, within the But it also at his ceilmate at Cook short- problems prison ly aggravated least hinted at adminis after his conviction for as- "[T]he sault. When he arrived at Centralia Cor- tration. Riccardo wrote: adminis job. [sic] [sic] [A tration don't do there rectional Center in November he told hap prison psychologist assault] [sic] sexual should've never that he did not feel pen again." language ambiguous. segregation This is safe. After a stint in for vio- principal ways lating prison rules, There are two to reduce the Riccardo declined to prison: general population. number of sexual assaults in better return to the He told steps separate potential aggres guards segregation ex ante to that a ceilmate in the potential victims; property sors from and harsher unit had stolen some of his penalties post objected spending day ex in order to deter future another with that distinguish responsible assaults. Riccardo did not be cellmate. He believed that the two, belonged Kings gang tween the and a administration inmate to the Latin receiving grievance Kings may such a should have and that the Latin have been adopted preparing him-though considered both. Illinois has not to kill he did not any governing say why rule the level of detail re he believed this. But Centralia quired prisoners' grievances. housing per- "When allows inmates to veto silent, they enemies, the administrative rulebook is sons declare to be so the grievance suffices if it alerts the found Riccardo a new cellmate. wrong When, days, the nature of the for which redress after a few that ceilmate ob- sought. notice-pleading system, jected spending is As in a more time with Riccar- grievant lay facts, do, pairing required. (The need not out the another pends exclusively segregation per- on his actions the eve- unit was too crowded to owm) ning May mit Riccardo a cell of his Rausch did not assault Riccardo During May 28, the afternoon of Garcia vicariously and is not liable for Garcia's help had offered to Riccardo retrieve his guards, however, crime. Like other property. stolen Riccardo took this as an required plac Rausch was to refrain from genuine ill omen rather than as a offer of ing way gratuitously. Riccardo in harm's assistance and told Lt. Alemond that he qualification "gratuitously" impor feared for his life if celled with Garcia. tant, prisons dangerous because are Although Alemond said that he would places. get by acts, Inmates there violent it," nothing-he "take care of he did many prisoners propensity have a not either find a cellmate for Riccardo or away commit more. Guards cannot turn Rausch, replacement alert Lt. Alemond's persons courts; committed nor do evening, on the next shift. About 9:30 that guards individual control over brought Rausch Garcia to Riccardo's cell crowding systemic and other circum and told him that Garcia was his new expected stances. All that can be is that *5 celimate. Before the cells were locked for guards responsibly act under the circum night, sought Riccardo out Rausch in stances that confront them. See McGill v. private and told him that he believed that Duckworth, (7th Cir.1991). 944 F.2d 344 Kings him, the Latin had a "hit" out on guard may responsible being A be without and that he feared for his life if celled with manipu credulous. Some are replied Garcia. Rausch that there was no cry lative and "wolf' in an effort to have a place put (or Riccardo) else to Garcia cell to themselves or choose a favored evening, and that he could not refuse hous- prisoners perceive spec cellmate. Other ing segregation. while in Rausch then every shadow, though ters in even their brought togeth- Riccardo and Garcia back unsupported. (There is, fears are for ex each, turn, er and asked if he had a ample, no reason to think that the Latin problem with the other. Riccardo shook Kings ever had it in for Riccardo. He did negative. his head in the Rausch took that belong gang, not to a rival and there is no agreement assignment. as That history overtly of violent or hostile encoun was Riccardo's last contact with Rausch. any gang ters between Riccardo and mem mentioned, nothing As we have untoward ber.) Guards therefore must discriminate happened evening next, or the feigned between serious risks of harm and during evening May 30 Garcia com- imagined ones, easy or which is not an pelled perform Riccardo to oral sex. The given task the brief time and scant infor suggest record does not that this assault many mation available to make each of the any Kings. had connection to the Latin every day's decisions that fill work. During assignment the time between and assault, eighth Riccardo did not ask for a differ- amendment does not (though griev- guards perform ent ceilmate he did file two demand that this task flawlessly. May matters). It does not even hold them to ances on 29 about other brought suggest negligence Liability pos Circumstances out at trial standard. sible, instead, only guard guards recognized when a is delib that other should have erately May problems developed indifferent to a substantial risk of on 30 that had Garcia; Helling McKinney, between Riccardo and their failure serious harm. See v. 25, 2475, may culpable 509 U.S. 113 S.Ct. 125 L.Ed.2d 22 to intervene be but cannot be (1993); Seiter, 294, Rausch, Wilson v. 501 U.S. 111 attributed to whose de- 526 (1991); 2321, nity protects

S.Ct. 115 L.Ed.2d 271 Estelle officials “hazy who act at the (id. Gamble, 97, 285, 206, 2151) 97 border” 429 U.S. S.Ct. 50 be- (1976). tween the lawful and L.Ed.2d 251 “Deliberate indiffer the forbidden. That may Rausch have subjective overstepped the line means awareness. See ence”. not Brennan, every does mean that reasonable offi- Farmer v. cer would (1994). have been bound to know that L.Ed.2d S.Ct. It is Rausch acted in, improperly. Farmer, We need not enough, the Court held defense, pursue immunity however, be- ought guard recognized that the to have cause Saucier calls appellate on courts to Instead, the risk. “the official must both first, address the merits see id. at be aware of facts from which the inference pre- Rausch is entitled to could be drawn that a substantial risk of outright: vail juror no reasonable could exists, serious harm and he must also draw concluded, record, on this the inference.” Id. at 114 S.Ct. 1970. actually Rausch recognized that placing Rausch contends that Riccardo Garcia and together exposed Riccardo Ric- did not face a “substantial risk of serious cardo to substantial risk. harm” from on evening May Garcia it might Now seem that Rausch had to 28, 1997; that, if such a risk was present, (a) appreciate risk, because existence; Rausch not appreciate its claimed to fear for his life if celled with and that at all events he is entitled to (b) member of the Kings, Latin qualified immunity because reasonable of Garcia fact harmed Riccardo. One necessarily ficers would not have under problem relying on things how turned clearly required stood that'the law Riccar *6 out to show knowledge of risk beforehand do separate and Garcia to be in cells. The is that Garcia did not act for the Latin (the objective subjec first two matters Kings; he told Riccardo that he was fulfill- amendment) tive components eighth of the' ing personal fantasy, and Riccardo be- instance, are for in the first with explanation. lieved this Thus the risk that appellate question review limited to the (a “hit”) professed to fear did not any juror whether reasonable could have come to pass. Even under the law of requisite found that the level of risk exist negligence, this is an important distinction. ed, and that Rausch Immunity, knew it. If a school district entrusts a bus to a however, court, is a matter of law for the record, driver with a drinking bad and the to be decided without deference to the tipsy driver runs the bus off the road while jury’s preferably resolution'—and before speeding, liable; the school district is the' goes jury. case See Saucier v. if instead there is an accident for which Katz, 194, 202, 121 533 U.S. (a the driver is not at fault tree falls on (2001); L.Ed.2d 272 Anderson v. Creigh bus), or the collapses driver of a heart ton, road, attack while on the the district is not (1987). L.Ed.2d 523 The district court liable, because that was not the type of brushed aside Rausch’s invocation of im risk created or' by increased the negligent munity, writing guard that a cannot bene conduct though even hiring particular this fit from if immunity the action taken was driver was in See, the causal chain. e.g., not response reasonable to a actual risk Berry Sugar Notch Borough, 191 Pa. ly approach, foreseen. That merges (1899). which 43 A. 240 The risk from which merits, immunity and the is incompatible Riccardo sought protection was not real- with predecessors. Saucier and ized; its See shows, for all this (objec- record 203-06,121 evaluated) U.S. at S.Ct. 2151. tively Immu- risk to Riccardo of shar- that he could serve as their as- Kings than so greater was no with Garcia ing a cell sassin; at first cut Garcia but at least a cell with other sharing the risk of (and, enforcer gang could not be deemed a prisoner. post, learned ex his attack on Riccar- as we subjective assessment: for Rausch’s As related). gang a “hit” nor do was neither mortal initially asserted Riceardo though Second, that Garcia had a Rausch knew “had a fear, whether he later asked when prison. clean record in He had not been his head with Garcia he shook problem” (let acts of violence alone disciplined for then had answer. Rausch negative give assault). That makes it reason- for sexual Ric- to believe. which statement to decide to have deemed Riccardo’s able for Rausch con- jury evidently and the argues, cardo unjustified. It not as protestation initial cluded, should have believed that Rausch with a known if Rausch housed Riceardo statement, pri- communicated first predator. sexual second, vate, communicat- than the rather thought observation be Lest this A rational presence. in Garcia’s ed from as- protection leave without guards give should thought have could records, “clean” we saults others with private. made in to statements priority may ways to show add that there be other (Rausch that, if Riceardo had testified risk and the objectively an serious both Garcia, with problem” to “have a claimed guards’ knowledge of that risk. For ex- separated; but Ric- have been they would might attempted Riceardo ample, consequences might have feared cardo strong that there is a correla- demonstrate prison’s general in the in a later encounter of fear prisoners’ professions tion between Still, what Rausch should population.) many How murders and actual violence. we right question; is not the have believed assaults) (or homosexual occur Centraba No know what he did believe. need to (or hundred prison system) per the Illinois found, light jury could have reasonable custody? many How vio- inmate-years of problem” of “a of Riccardo’s denial by requests for preceded lent events were act accord- Rausch’s decision to Garcia and many requests pro- protection? How subjectively appreciated that Rausch ingly, dishonored, yet nothing unto- tection were *7 Riceardo to a expose action would that his along Data these lines happened? ward harm. risk of serious substantial court) (and a would have enabled already explained, prisoners As we have Ric- though to evaluate actual risks even in an object potential to cellmates may that Rausch eardo was unable to show or out of manipulate assignments, to effort present to an deemed Garcia should have may although protest thus ignorance; If is common at especial risk. violence necessarily not do risk it does demonstrate Centraba, good track and inmates have oblige does not so. The Constitution identifying potential aggressors, records in say. whatever inmates guards to believe not their heads guards then who do have (that fact guard separate is, subjec- How does reasonable actually must the sand making fiction? Rausch knew when risk an inmate faces tively) from understand the But if things beyond disregarded. at least two assignment protest is when First, rare, contradictory poor if is correla- Riccardo’s assertions. or there violence and subse- was himself inmates’ alarums Rausch knew that Garcia tion between violence, pro- initial Latin Riccardo’s protection quent then segregation for from them). (or Rausch with provided Per- test would not Kings at least a subset assault. knowledge impending of an system actual manipulating the haps Garcia was contain evidence record does not himself, the Latin The falsely asserting to fear only That leaves Riecar- can’t or won’t along these lines. be done. Riecardo had al- to, al- say-so, objected do’s and reasons we have ready and obtained the remov- bare assertion is ready given prisoner’s of, assigned al at least one cellmate to him guard subjectively make the enough not events, segregation. At all question risk, objective if the aware of a indicators (or on the table is what Rausch knew do not substantiate the inmate’s assertion. deliberately 28; learning) May avoided on and there is no that evidence Rausch sub- that

Rausch also was entitled to believe jectively believed that Riecardo fail would Garcia and Riecardo to assignment his opportunity to use his to seek further re- night only. last for one share a cell would day. view the next day placement next shift the During the office, information, with better was armed free, wishes, if give Illinois is it pris- and, make a fresh evaluation if supposed power oners veto identity over the of their appropriate, assignment. Apparent- a new eighth cellmates. But amendment ly happen; that- does did record force, does not do so of prison- its own (Maybe it why. happen not show cannot ers use the Constitution to áchieve action.) the staff Rausch’s If approved indirectly by making this control unsub- charged-with that Rausch knew the staff stantiated assertions. The constitutional responsibility routinely carry this failed to question is not what (initially) Riecardo out, it might obliged then he have been said, actually but what Rausch believed. (such precautions sepa- take additional as manipulative, Some are some are rate interviews of Garcia and Riecardo to mistaken, and some are not honest probe deeply) these more before issues but also accurate. The Constitution does making assignment. an Rausch himself (on not oblige guards to pain assume separate testified that would interviews occurs) absolute if an assault later practice, have been better but the Consti- that all prisoners are in third category; tution prac- does not enforce all “better different, Farmer articulates a and more tices”; respect this is one in which the standard, demanding, preserving room for eighth from amendment differs standard independent judgment both and honest negligence But standard. Riecardo guards’ part. mistake on the This record contend, does not and the record does not permit does not a reasonable to find demonstrate, disregard that of the classifi- deliberately Rausch knew or disre- system cation at Centraba was so common garded subjected the fact that his actions Rausch was bound know his Riecardo substantial risk off serious to.a assignment indefinitely. last would Nor harm,, so the judgment is that, if Rausch bound to foresee Ric- *8 fear, cardo in genuine was he would ne- REVERSED. glect day, complain next when he (Recall readily could have done so. WILLIAMS, Judge, Circuit dissenting. grievances May Riecardo filed two on 29 I subjects.) agree Anthony about other Riecardo While Riecardo testified in that he too fact exhaust protest was terrified to his and administrative remedies, I put disagree was off Rausch’s with the majority’s assertion that prisoners segregation in judgment can’t refuse decision overturn the as- this signments; yet grievances jury ample are confidential action as a had reasonable evi- (so known), Garcia would and dence to find that Larry Lieutenant appeal often over the of a deliberately head Rausch was indifferent to the guard has something who told them that substantial risk of harm Riecardo faced

529 province appellate There- within the of the courts celled with Juan Garcia. by being fore, “reweigh I dissent. the evidence.” v. respectfully Knox State (7th Indiana, 1327, 93 F.3d 1332 Cir. of 30, 1997, May celled with Juan On while 1996). Lastly, all importantly, and most Garcia, of the Latin a known member analyzed reasonable inferences must be forcibly Riccardo’s head was shaven Kings, light most favorable to Riccardo as the that Riccardo was “bleed- by Garcia such Sheehan, non-moving party. 173 F.3d at I at ing bad.” Tr. 81-82. Garcia pretty Riccardo; attempted to sodomize then however, Tr. II he able to resist. at Brennan, 825, In Farmer v. 511 U.S. resisted, ejacu- 50. After Riccardo Garcia (1994) 834, 1970, 128 L.Ed.2d 811 Tr. I at lated on Riccardo’s feet. 83-84. the Court bifurcated the standard for oral perform was then forced to liability objec Eighth Amendment into an 15 to 20 minutes. Id. sex on Garcia for subjective tive element and a element. when an officer walked The assault ended First, potential harm to the inmate notes, majority

by the cell. As the objectively (citing must be serious. Id. Lt. give events which rise to Rausch’s Seiter, 294, 298, 111 Wilson v. happenings on liability are limited (1991)). 2321, 115 L.Ed.2d 271 S.Ct. Sec 28, 1997, Lt. evening May of when ond, subjective prong, prison under the Lt. Alemond1 as the lieu- replaced Rausch “deliberately disregard” official must this charge segregation tenant of the potential by being harm “aware of facts receiving prison.2 units at Centraba from which the inference could be drawn contends, and appeal, Lt. Rausch On that a substantial risk of serious harm intro- majority agrees, that the evidence exists, drawing] the inference.” [also] legally at trial was insufficient to duced 838, 114 Id. at S.Ct. 1970. finding a under the support fact, inquiry question is a The second To sustain overturn- Eighth Amendment. through circumstantial evi sustainable verdict, the record must demon- ing jury 842, 1970, dence, 114 id. at S.Ct. mandat evidentiary “legally strate no sufficient ba- official’sstate ing “inquiry an into to find for the sis for reasonable (quot 114 1970 of mind.” Id. S.Ct. party.” Payne v. Milwaukee non-moving Wilson, 299, 111 ing 501 U.S. at (7th Cir.1998). County, 146 F.3d 432 2321). normally proves “A actual assessment, undertaking this we an- While by showing knowledge impending harm evidence,” alyze totality the “the of the officials about complained that he Corp., v. Donlen 173 F.3d Sheehan safety.” McGill v. specific threat to his (7th Cir.1999), obliged and are (7th Duckworth, 944 F.2d Cir. judgment leave the undisturbed unless 1991) require (reasoning that the scienter that “no rational moving party can show guard, satisfied when a ment is brought in a verdict could have G-K-G, Inc., something true “[s]uspect[s] him.” against EEOC (7th Cir.1994). eyes for fear of what will [he] It is not shut[s][his] F.3d *9 recollec- testified that he had no previously complained to Lt. Ale- 2. Lt. Rausch 1. Riccardo being May transpired he feared celled with Garcia on mond that of the events which tion however, King, Thus, he a Latin because was jury was left with Tr. Ill at 68. 28. previous complaint that this record reveals testimony concerning events of Riccardo's not voiced to Lt. Rausch and therefore was evening. that liability against may support finding not a of him. 530 way out of was also “[goes] placed segregation “enemy [his]

learn” or avoid protection,” allegedly from the Latin knowledge”). unwelcomed acquiring Kings, and that history Garcia had no of also cautioned that Supreme The Court However, sexual assault. that is not the an claimant not “Eighth Amendment need by which standard this case should be official acted or show that a failed reviewed. The standard is whether there actually that harm believing to act would legally exists a evidentiary sufficient basis inmate; enough an it is that befall jury for a reasonable find in favor of despite official or failed to act acted his Payne, Riccardo. 146 F.3d at 432. knowledge of a substantial risk of serious A jury could reasonably have believed Farmer, harm.” 511 at U.S. that Lt. deliberately Rausch was indiffer- Likewise, a need not prove claimant ent to the substantial risk of harm to that a official was aware of the undisputed Riccardo. It is that Garcia was specific type of harm which befell the pris- a member of the Latin In Kings. then- oner, only that official was interaction, first privately pulled Riccardo risk, aware that a substantial type some Lt. Rausch expressed aside and his fear of Gross, danger Haley existed. See Thus, being celled with Garcia. Riccardo (7th Cir.1996) F.3d n. (applying 643 33 presented has sufficient sup- evidence to 1970) Farmer, at port the finding that Lt. Rausch was made jury (upholding verdict for $1.65 million McGill, aware of potential harm. See finding guards based on that prison a were at jury F.2d 349. The could have deliberately by failing indifferent to re- further found that Lt. Rausch’s decision to spond request to a prisoner’s repeated question Riccardo in front of Garcia was be from cell when his removed cellmate set way reasonable potential abate the causing fire to cell the cellmate’s death and danger Moreover, to Riccardo. Lt. burns). plaintiffs Thus, it severe was Ric- Rausch admitted that “[i]f [Riccardo] cardo’s burden show that Lt. Rausch life, would have told me he feared for his if actually knew that there awas substantial housing he or thought there refused was risk that Garcia harm would Riccardo. Id. , threat safety[,] to his would not have he However, Lt. Rausch would be shielded placed they been would not have been — from if objectively no serious risk placed together.” Thus, Tr. Ill at 73. existed, impending he was unaware of the jury could have determined that Lt. risk, McGill, 944 F.2d at or he took admission, Rausch’s coupled prior with his it, steps to abate reasonable whether 'suc- statements to Riccardo May on 28 that not, Farmer, cessful or U.S. Riccardo could not turn housing down a 114 S.Ct. 1970. assignment in segregation, and that Ric- Admittedly, there is evidence the rec- cardo could not be moved to another cell ord to support finding that Garcia did due to a lack of space, amounted to Lt. not objectively pose a substantial threat to Rausch “deliberately” avoiding learning namely, the fact Garcia in danger.3 an Such Riccardo— 3. Significantly, actually Riccardo was greater housed else to weight. house him carried even receiving opposed segre- in tire unit as heard testimony also that it would gation during unit required assault. The more work for Lt. Rausch to testimony receiving heard unit is receiving move Riccardo from a cell in to a segregation used to house inmates when the segregation cell in due to the time of the Thus, unit Tr. I at 24. is full. Lt. alleged occupancy receiving Rausch’s refusal and the 75-77; place statement to Riccardo that there segregation, was no Tr. Ill at further *10 potential of the risk to Riccardo. gation ex occur- post the use of analysis avoids However, rences, jury Fur- as the fact that Garcia the found otherwise. such Riccardo, finding ther, to sustain a fact assault when asked to review the defendant’s Moreover, motion, the of deliberate indifference. aptly Rule 50 the district court point to to stated, that Lt. Rausch is able fact posi- support in the record to his evidence ample is evidence from [TJhere which to not mandate reversal of the tion does that attempt conclude to ascer- Rausch’s duty appel- as an

jury’s verdict. Our sole tain of the seriousness the threat was the record analyze late court is to whether pretense, mere and because he did It is supports jury’s the determination. go not want to to the extra effort to find reweigh function to the evidence. not our Garcia, different accommodations he Knox, at 93 F.3d recklessly disregarded what he knew to majority’s I am further troubled the dangerous be a situation. That decision Riccardo’s statement to reliance on second essentially disregard to the threat Garcia) (made in front of Lt. Rausch liability jury where lies. A could have overturning jury’s the verdict. As sustain reasonably inferred that Rausch crossed stands, inqui- indifference it the deliberate gross negligence the line from to delib- determination, inherently factual ry is an on, erate indifference the ludi- based Farmer, 511 U.S. at S.Ct. “asking” of each inmate if he crousness “inquiry an into a requires which the other. problem had Credibil- mind,” of id. at official’s state ity key the had have been Thus, this second 1970.4 whether jury’s analysis, thus cannot the Court support the assertion statement is used interject credibility its own determina- “objective” was no risk to Ric- that there tions; could, having if it observed stripped eardo or that Lt. Rausch was of testimony, may it well have parties’ both harm, “subjective” knowledge of the it his jury. reached the same conclusion as credibility and is clear that Lt. Rausch’s [...] sincerity integral components to the are official will freed be essence, [A] In usefulness of this interaction. responded reasonably if he from majority accepts Lt. Rausch’s asser- ' above, As mentioned to the risk. tion that his second discussion with Riccar- could questioning investi- Rausch’s method of be do in front of Garcia was sincere known, person any addi- would have or supporting Riccardo’s belief that reasonable known, assignment complaints about his cell tional that the defendant should Finally, jury was would have been futile. accordingly. juries should be instructed prisoner may cell to told a be moved from one 1970; Id. at n. accord Lewis Therefore, at Tr. I at 25. another time. Richards, Cir.1997) (7th 107 F.3d ample support evidence to its had C.J., ("In (Flaum, concurring) view of the finding rose to the that Lt. Rausch's actions Court, safeguard against jurors Supreme deliberate indifference. level of might outrage lead violence whose of an them to sanction officials in the absence only fur- Supreme 4. The Court's discussion Eighth is not a relaxed Amendment violation highlights propriety allowing a ther standard, summary judgment instruc- jury to make this determination: convey properly applicable law. tions instructing juries deliberate indif- When courts, view, my should ex- Lower federal proof, ference cases with such issues of willingness juries a similar faith in the hibit ensure courts should be careful law.”). to follow the requirement subjective culpability is enough merely find that a lost. It is not *11 532 deliberately forcing plain- prison guards as vate conversation with out-

perceived 76-82; I presence. side of Garcia’s Tr. at a Hobson’s choice. tiff to make Further, Tr. II at 42^13. when Riccardo Rausch, 99-CV-372-CJP, No. Riccardo officials, prison to alert attempted Garcia 2002) (order 7, (S.D.Ill. denying at 15 Mar. II responded escalating violence. Tr. 50(b) motion) (citations Rule F.R.C.P. at In light 46-47. of Riccardo’s reasonable omitted) By (emphasis original). taking housing belief that he not refuse his .could word, majority’s at the Lt. Rausch his assignment that and there was no other immunizing pris decision has the effect cell, 3, supra, available see note on poten on officials from based realistically ability did not have the actions, tially unreasonable or contrived complain guards alerting to other without admittedly un and sanctions Lt. Rausch’s incurring Garcia and his wrath. reasonable behavior. majority’s question The decision to the causal link attempt In an to break adequacy pleas protection of Riccardo’s for Lt. Rausch’s actions and the harm between by requiring concerning evidence the over- Riccardo, majority that asserts “the all number of sexual assaults at Centralia (a professed risk that Riccardo to fear Lewis, prison is also curious. See 107 F.3d ‘hit’) pass.” Majority did not come (“[T]he (Flaum, C.J., at 556 concurring) however, opinion inquiry, at The is not 526. majority’s emphasis upon adequacy actually put whether “a hit” was out on Lewis’s for pleas protection strikes me as Riccardo as that would constitute the sort inappropriate.”) prison recognizes The of impermissible post ex determination es- that manipulative “some are and Rather, by majority. the focus chewed ‘wolf,” cry majority opinion at and solely on whether Rausch was made procedure has created a to deal with this type aware that a substantial risk of some recurring possibility. prisoner’s A request danger prior to the actual existed event. for a always cell transfer is honored if the F.3d at n. Haley, See 643 33. Under the prisoner alleges a fear personal for his analysis presume we to majority’s are that safety, Tr. I at but the deals pleas protection Riccardo’s would with potential frivolity by treating every guard against physical beating? murder or request potential disciplinary as viola- Eighth For the of an Amend- purposes Thus, tion. Id.5 has created a context, inquiry, ment I find procedure whereby prisoner is moved no real distinction between “a hit” first, questions concerning the sinceri- sexual assault. ty request of the are asked later. In majority also frees Lt. Rausch of addition, inquiry Eighth under liability based on the assertion Lt. one, i.e., Amendment is an individualized duty Rausch was under no to foresee that required Riccardo was to prove, on based complain pris- Riccardo would not other case, the individual facts of his he was May on officials between the date of subjected to an objectively serious harm interaction, Lt. Rausch and Riccardo’s and and that Lt. Rausch was “aware of facts May actually when the assault took from which the inference could be drawn reveals, however, place. The record that a substantial risk of serious harm closely Garcia Farmer, watched Riccardo’s actions exist[ed].” U.S. impeding Riccardo’s ability pri- to have a S.Ct. 1970. n movehim for Major that, Lawrence Jefferson was clear that "if get he'll ticket for just refusing housing just [a is] that." Id. reason, housing refuse with no then we'll *12 ma

Finally, though unpursued by Plaintiff-appellee petition filed a for re- jority, argues defendant that should a con hearing and rehearing en banc on March found, stitutional violation be he is never 12, 2004. In response petition, to this qualified entitled to immunity. theless panel has opinion; amended its the amend- Rausch, According previous case law ments are reflected in the immediately that “no must show reasonable offi preceding revised opinion. majority A cial would have believed it constitu the judges panel on the deny voted to tional either to an cell inmate with some rehearing. judge A called for a vote on gave conflicting one who answers when the petition banc, for rehearing en but (in presence) asked the other inmate’s if majority of the active judges did not favor inmate, problem he had a with that or to rehearing en banc. Accordingly, peti- rely policy requiring on a review of all tion is denied. placement suitability decisions for within Appellant’s hours.” Brief at 33. Howev er, Pelzer, Supreme v. Hope Court RIPPLE, Judge, Circuit with whom rejected

expressly the notion that in order ROVNER, DIANE P. WOOD and right “clearly for a pre be established” WILLIAMS, join, Circuit Judges, vious case law must contain facts which dissenting from rehearing the denial of en “materially are similar” to the con facts banc. tained in the underlying action. 536 U.S. 730, 739, 153 L.Ed.2d 666 Today, the court allows to stand the (2002); Burgess see also Lowery, panel majority decision of a that imposes (7th Cir.2000). Rather, F.3d 944-45 on prison inmates a impossibly new and the Court focused on'Whether prior high proof standard of establishing de- place case law would officers on notice liberate indifference in condition their conduct is unlawful. Id. It is panel majority cases. The strongly sug- put prison clear that Farmer guards on that, gests in order to show deliberate they notice that duty, have a under the indifference, prisoner only must not iden- Amendment, Eighth protect inmates tify particularity with harm he fears being gratuitously from raped beaten or but also bolster his own account with a other inmates. See id. at special showing containing material such 1970; Haley, see also 86 F.3d at 646 as statistical evidence of a “strong correla- (rejecting qualified immunity defense tion prisoners’ between and ac- professions light of Farmer decision which further Rausch, tual violence.” Riccardo v. elucidated “deliberate indifference” stan 527. dard). requirements Neither of these find support Supreme circuit or prece- Court aforementioned, In light of the I must Consequently, majority’s dent. the panel agree with the trial court a reasonable imposition of these requirements not ample had evidence sustain this Eighth does violence to our Amendment I respectfully verdict and thus dissent. jurisprudence, it effectively also FLAUM, Before Judge, Chief amends, mandate, any legislative without POSNER, EASTERBROOK, RIPPLE, judgment the standard for as a matter MANION, KANNE, ROVNER, DIANE WOOD, EVANS, WILLIAMS, law under Federal Rule of Civil Procedure P. Judges.† Circuit brought by prisoners. 50 for cases † Judge Sykes participate Circuit did not in the consideration or decision of this case. feared, identify need to that he he did not bodily harm that would specific sort of Lt. Rausch that told Mr. Riccardo Indeed, him. our case upon be inflicted a “hit” on him and out Kings put had Latin crystal precision clear that such law makes Garcia, a with in a cell placement respect identifying risks is endanger life. would his King, Latin known *13 required: later, forced Mr. Riccardo was days Two link must be some between there While with Garcia. The sexual acts perform the official was aware the risk of which that concludes majority nevertheless panel actually harm that occurred —as and the to establish is not sufficient this evidence unfair officials liable it would be to hold a appreciated that Lt. Rausch should anticipated they for risks could not have Riccardo because risk to Mr. serious they other unre- simply ignored because sought protec- from which “risk need not be lated officials at 526. In Id. tion was not realized.” risks — precise aware of the risk view, specifically short, majority’s because panel in the that unfolds. killed, not Lt. raped, but Mr. Riccardo was liable for his failure cannot be held Rausch (7th Gross, 630, 643 n. 33 Haley v. 86 F.3d Riccardo’s fears. respond to Mr. Cir.1996). by reprisal Mr. Riccardo feared Garcia, Kings. a member of the Latin in Farmer v. Bren- Supreme The Court gang, physical that committed an act of nan, upon Mr. Riccardo. The fact that violence (1994), this sort of eschewed L.Ed.2d 811 Mr. Riccardo did not suffer a worse fate made clear that a distinction. The Court or the negate does not seriousness escape prison official cannot Riccardo that validity of the threat to Mr. by indifference liability for deliberate Lt. was communicated to Rausch. that, he was aware of an showing while obvious, risk to inmate safe- substantial complainant know that the ty, he did not majority opines further panel The especially likely to be assaulted might Mr. Riccardo have overcome the eventually who specific prisoner in infirmity by showing his case question committed the assault. strong there is a correlation be- wheth- Amendment is Eighth under the of fear and prisoners’ professions tween acting with deliber- prison officials, er (or many actual violence. How murders indifference, exposed prisoner ate to a assaults) homosexual occur Centraba “risk sufficiently substantial serious (or hun- prison system) per the Illinois health,” Helling damage [v. to his future inmate-years custody? dred How 25, 35, 113 S.Ct. McKinney, 509 U.S. many preceded by violent were events (1993),] and it does 125 L.Ed.2d requests protection? many for How re- the risk comes from matter whether dishonored, quests protection were sources, single multiple or source yet nothing happened? untoward Data prisoner more than it matters whether a along these lines would have enabled a attack for faces an excessive risk of rea- (and court) to evaluate actual him all personal pris- sons or because risks.... face such a risk. oners his situation Riccardo, court, (emphasis at 527. Neither this other Id. at 114 S.Ct. 1970 add- ed). appeals, Supreme Riccardo did not need to courts of nor the Court Just as Mr. showing that ex- identify Kings required the member of the Latin ever has retaliatory pressed action fears and violence were related who would mete out the statistically significant way. that, It al- circumstances, some rule under no can ways prisoner representation has been sufficient that the such a be sufficient. fear, that articulated his official question There is no that Mr. Riccardo inmate, believed the but that the official articulated to Lt. Rausch his fear of physi- protect failed to take reasonable actions to cal if violence celled with a member of the from harm. often We have Latin Kings. In violation of Centralia’s stated policy own presumably on founded —one recognteed correlation between complaints suggest “the circumstances that the [i]f n and violence—Lt. Rausch did not move being defendant-official sued had been cell; instead, Mr. Riccardo to another Lt. exposed concerning to information Rausch forced Mr. Riccardo to articulate risk and thus ‘must have known’ about *14 any concerns in the presence very of the it, then such evidence could be sufficient fears, source of Mr. Riccardo’s Garcia. As permit trier of fact to find that the the district court in rejecting determined knowledge defendant-official had actual motion, the defendant’s Rule 50 there was of the risk.” ample evidence from which to conclude McCaughtry, Sanville v. 266 F.3d attempt Rausch’s to ascertain the (7th Cir.2001) Farmer, (quoting seriousness of the threat was a mere 842-3, 1970; emphasis add pretense, and that because he did not ed). question The of whether the prison go want to to the extra effort to find “requisite official had the knowledge is a Garcia, different accommodations for he question of fact” for jury. reserved Id. recklessly disregarded what he knew to Requiring the sort of statistical evidence dangerous be a situation. That decision suggested panel majority in order essentially disregard the threat is to establish the existence of such risk jury where lies. A could have imposes practical on inmates a burden reasonably inferred that Rausch crossed impossible is for to meet. Pris gross negligence the line from to delib- certainly oners should not be relieved of erate indifference based on the ludi- but, meeting their proof, burden of like “asking” crousness of each if inmate he litigants, they other ought permitted to be problem had a with the other. Credibil- evidence, any come forward with direct ity had key to have been the circumstantial, or probative that is of the jury’s analysis, this Court cannot inter- knowledge of concerning officials ject determinations; credibility its own reported judicial threats to them. The could, and if it having observed both inquiry ought not be whether there was parties’ testimony, may very it well have statistical evidence from which a reached jury. the same conclusion as the could conclude that the threat was “real” R.64 at 15-16. or seriously, should be taken but whether the record contains evidence from panel majority The makes clear its dis- jury reasonably which the agreement jury’s could conclude with the of view the evi- that the official pris knew that the dence. The in evidence favor of Mr. Ric- subject oner may to a risk of serious harm. cardo not overwhelming, be but it is Moreover, may certainly there indeed be legally times and insufficient. When representation circumstances when the of light the evidence is viewed in the most Riccardo, be, will abe sufficient basis to favorable to Mr. it as must require part action on prison jury reasonably of the could conclude that Lt. categorical official. I see no reason for a Rausch knew of a serious risk of harm to (1) is to: establish purpose chapter of this failed to take reasonable Riccardo but Mr. majority standard for the incidence panel it. The zero-tolerance steps prevent prisons if in the United prison rape conclusion come to a different may have (6) fact, accountability of its increase the the trier States. it had sat as detect, prevent, respect certainly officials who fail in that disagreement (“Con- reduce, revising punish prison rape.”) for occasion appropriate not an (2) gress following findings: 50 stan- makes the and Rule Eighth Amendment has conducted Insufficient research been dards. reported data on the ex- and insufficient majority opinion not de- panel The prison rape.... Many inmates tent of right to a Riccardo of his prives Mr. (13) repeated have suffered assaults. trial, very significant step it also takes a within high incidence of sexual assault incarcerated this depriving individuals prisons potential involves actual and viola- to meet opportunity a realistic circuit of Constitution.”). tions of the United States I in these cases. proof their burden policy, prison- Centraba Prison’s to move dissent from the de- respectfully therefore disciphne ers first and them later rehearing en nial of banc. requests, of the proof baseless is further objective danger. Again, evidence of the WILLIAMS, Judge, with whom Circuit *15 prison’s policy does not hold Rausch liable ROVNER, RIPPLE, and DIANE P. rather, negligence; for mere it reflects the WOOD, join dissenting in Judges, Circuit in prison, understood environment the as rehearing of en banc. from the denial officials, by guards, accepted and incorrectly majority’s opinion has The administrators, that violence threats of unjustifiably and reframed both resolved high probability leading have a of to at- standard for delib- Eighth the Amendment Riccardo, therefore, proved tacks. that as well as the Rule 50 erate indifference objectively danger the asserted was seri- jury aside a verdict. standard to set ous. regard Eighth to the Amendment With specific a of inquiry, majority opinion highlights inquiry the Under the more Particularly, subjective offi- major prong, in the case law. Farmer’s the gap objective “deliberately poten- cial prove disregard” what to the must required is by prong being of indifference stan- tial harm “aware of facts from the deliberate Brennan, dard? in Farmer v. which the inference could be drawn The Court exists, 825, 3, 1970, 511 n. 128 substantial risk of serious harm U.S. 834 (1994) drawing] not at L.Ed.2d did address this the inference.” Id. [also] 811 526-27, majority 114 1970. to me to page issue. asks This seems cre- On (1) go questions: to this ate plethora questions of which two what facts were (2) issue, Rausch, i.e., presented accept of to the overall threat violence did he the dearth of case them as true or did his actions evince his prison. Perhaps part purposefully ignore appar- in to those point law on this is due intent general knowledge prisons again, inquiry are dan- ent facts? Once is a one, gerous rape particularized and assault oc- focused on the officer’s places where threats, I frequently knowledge. repeating cur what and therefore such Without dissent, case, already my as the in this must be handled set out one that Ric- by jury presented more caution than exhibited with evidence Rausch. Rape Prison Elimination Act cardo told Rausch he not want be See (2004) (“The of § celled with he was fear U.S.C. 15601-02 Garcia because normally proves an attack. “A of CLUB, Petitioner, SIERRA knowledge impending by harm

actual complained that he offi- showing specific safety.” threat to his cials about Duckworth, F.2d

McGill v. ENVIRONMENTAL PROTECTION (7th Cir.1991). Therefore, contrary AGENCY, Respondent. assertion, part of majority’s the first this Intervening Respondents: State of

inquiry is satisfied. Illinois; State Missouri majority’s that Ric- Accepting point “say-so” enough mere cardo’s 03-2839, Nos. 03-3329. Eighth liability, establish Amendment Appeals, United States Court of “objective plenty there were indicators” Seventh Circuit. support jury’s finding that Rausch’s actions amounted to deliberate indiffer- Argued June 2004. heard ence. evidence put July Rausch the two men front of each Decided problem other to determine whether a ex- act, majority

isted. It is this which the liability.

uses to exonerate Rausch from

However, very it is this act which evinces

Rausch’s deliberate indifference as found by and reiterated the district more,

court. What is this court has al-

ready unacceptable defined such action as *16 Eighth

under the Amendment. Id. at 349

(reasoning requirement that the scienter guard, “[s]uspect[s]

satisfied when eyes

something is true but for shut[s][his] “[goes]

fear of what will or [he] learn” out way acquiring to avoid unwelcomed [his]

knowledge”). jury found that no rea- guard asking

sonable would think that Ric-

cardo to admit fear of Garcia with Garcia

present, response. would illicit an honest

Again, it is this act that crosses the line.

Recognizing specific these actions Eighth

were inconsistent with the Amend- per

ment would not create se Therefore, I respectfully officials.

dissent from the court’s decision not to

rehear this case en banc.