Riccardo v. Rausch

• Decision Date: 27 February 2004
• Docket Number: No. 02-1961.,02-1961.
• Citation: 375 F.3d 521
• Parties: Anthony RICCARDO, Plaintiff-Appellee, v. Larry RAUSCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

375 F.3d 521

Anthony RICCARDO, Plaintiff-Appellee, v. Larry RAUSCH, Defendant-Appellant.

No. 02-1961.

United States Court of Appeals, Seventh Circuit.

Argued October 22, 2003.

Decided February 27, 2004.

Amended July 12, 2004.

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Erwin Chemerinsky (argued), University of Southern California Law Center, Los Angeles, CA, for Plaintiff-Appellee.

Mary E. Welsh (argued), Office of the Attorney General, Civil Appeals Div., Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

Anthony Riccardo, an inmate of the Centralia Correctional Center in Illinois, needed a new cellmate after his former cellmate complained about being housed with him. Normally that pairing would have been made by Centralia's placement office, but when the evening of May 28, 1997, arrived and some inmates remained unassigned after the regular placement officers had left, the task fell to Lt. Larry Rausch, who was serving the second shift. Rausch matched Riccardo with Juan Garcia, a pairing that should have lasted only until the placement officers on the day shift could review matters. Two days later Garcia sexually assaulted Riccardo, who sued Rausch under 42 U.S.C. § 1983. A jury concluded that Rausch had subjected Riccardo to cruel and unusual punishment and awarded $1.5 million in compensatory damages. The district court entered judgment on this verdict, and Rausch appeals.

His lead-off argument is that Riccardo failed to use his administrative remedies. If so, then 42 U.S.C. § 1997e(a), part of the Prison Litigation Reform Act, forecloses this suit even though Riccardo challenges a discrete incident and wants a form of relief — money damages — that the administrative process in Illinois does not provide. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Riccardo did file an administrative grievance, but Rausch contends it was too late (in February 1998, while Illinois sets a limit of six months) and asked the state to prosecute Garcia rather than do anything about Rausch and the classification system.

Prisoners must follow state rules about the time and content of grievances. See Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.2002); Strong v. David, 297 F.3d 646 (7th Cir.2002). Failure to do this means failure to use (and thus to exhaust) available remedies. Yet the state's administrative apparatus did not reject Riccardo's grievance as untimely; it accepted and denied the grievance on the merits. At the time of these events, Illinois permitted a filing after six months when the prisoner had good cause, see 20 Ill. Admin. Code § 504.810 (1997). The official handling the grievance must have found good cause; anyway, we held in Pozo that, when a state treats a filing as timely and resolves it on the merits, the federal judiciary will not second-guess that action, for the grievance has served its function of alerting the state and inviting corrective action. 286 F.3d at 1025.

As for the content of this grievance: true enough, its main objective was to have Garcia prosecuted. (Riccardo deemed inadequate Garcia's punishment within the prison system.) But it also at least hinted at problems in prison administration. Riccardo wrote: "[T]he administration don't [sic] do there [sic] job. [A sexual assault] should've never [sic] happen again." This language is ambiguous. There are two principal ways to reduce the number of sexual assaults in prison: better steps ex ante to separate potential aggressors from potential victims; and harsher penalties ex post in order to deter future assaults. Riccardo did not distinguish between the two, and a prison administration receiving such a grievance should have considered both. Illinois has not adopted any rule governing the level of detail required of prisoners' grievances. "When the administrative rulebook is silent, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice-pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming." Strong, 297 F.3d at 650. The document that Riccardo filed is at the border of intelligibility; it is hard to imagine much less that a prisoner could do and still alert the prison; yet this grievance did complain that Garcia had committed a rape and that "the administration don't do there job." A generous construction of this grievance would have induced the prison to consider the possibility that the guards could have prevented this assault. So we conclude that Riccardo exhausted the administrative process. If Illinois wants grievances to be more detailed, it must adopt appropriate regulations and inform prisoners what is required of them. Riccardo is entitled to a decision on the merits of his constitutional claim.

Because Riccardo prevailed at trial, we recap the facts in the light most favorable to his position. Riccardo was anally raped by his cellmate at Cook County Jail, shortly after his conviction for aggravated assault. When he arrived at Centralia Correctional Center in November 1996, he told the prison psychologist that he did not feel safe. After a stint in segregation for violating prison rules, Riccardo declined to return to the general population. He told guards that a cellmate in the segregation unit had stolen some of his property and objected to spending another day with that cellmate. He believed that the responsible inmate belonged to the Latin Kings gang and that the Latin Kings may have been preparing to kill him — though he did not say why he believed this. But Centralia allows inmates to veto housing with persons they declare to be enemies, so the prison found Riccardo a new cellmate. When, after a few days, that cellmate objected to spending more time with Riccardo, another pairing was required. (The segregation unit was too crowded to permit Riccardo a cell of his own.)

During the afternoon of May 28, Garcia had offered to help Riccardo retrieve his stolen property. Riccardo took this as an ill omen rather than as a genuine offer of assistance and told Lt. Alemond that he feared for his life if celled with Garcia. Although Alemond said that he would "take care of it," he did nothing — he did not either find a cellmate for Riccardo or alert Lt. Rausch, Alemond's replacement on the next shift. About 9:30 that evening, Rausch brought Garcia to Riccardo's cell and told him that Garcia was his new cellmate. Before the cells were locked for the night, Riccardo sought out Rausch in private and told him that he believed that the Latin Kings had a "hit" out on him, and that he feared for his life if celled with Garcia. Rausch replied that there was no place else to put Garcia (or Riccardo) that evening, and that he could not refuse housing while in segregation. Rausch then brought Riccardo and Garcia back together and asked each, in turn, if he had a problem with the other. Riccardo shook his head in the negative. Rausch took that as agreement to the assignment. That was Riccardo's last contact with Rausch. As we have mentioned, nothing untoward happened that evening or the next, but during the evening of May 30 Garcia compelled Riccardo to perform oral sex. The record does not suggest that this assault had any connection to the Latin Kings. During the time between assignment and assault, Riccardo did not ask for a different cellmate (though he did file two grievances on May 29 about other matters). Circumstances brought out at trial suggest that other guards should have recognized on May 30 that problems had developed between Riccardo and Garcia; their failure to intervene may be culpable but cannot be attributed to Rausch, whose liability depends exclusively on his actions the evening of May 28.

Rausch did not assault Riccardo and is not vicariously liable for Garcia's crime. Like other guards, however, Rausch was required to refrain from placing Riccardo in harm's way gratuitously. The qualification "gratuitously" is important, because prisons are dangerous places. Inmates get there by violent acts, and many prisoners have a propensity to commit more. Guards cannot turn away persons committed by the courts; nor do individual guards have any control over crowding and other systemic circumstances. All that can be expected is that guards act responsibly under the circumstances that confront them. See McGill v. Duckworth, 944 F.2d 344 (7th Cir.1991). A guard may be responsible without being credulous. Some prisoners are manipulative and cry "wolf" in an effort to have a cell to themselves or choose a favored cellmate. Other prisoners perceive specters in every shadow, even though their fears are unsupported. (There is, for example, no reason to think that the Latin Kings ever had it in for Riccardo. He did not belong to a rival gang, and there is no history of violent or overtly hostile encounters between Riccardo and any gang member.) Guards therefore must discriminate between serious risks of harm and feigned or imagined ones, which is not an easy task given the brief time and scant information available to make each of the many decisions that fill every day's work.

The eighth amendment does not demand that guards perform this task flawlessly. It does not even hold them to the negligence standard. Liability is possible, instead, only when a guard is deliberately indifferent to a substantial risk of serious harm. See Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). "Deliberate indifference" means subjective awareness. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). It is...