In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2809
CHESTER BOYCE,
Plaintiff-Appellant,
v.
LIEUTENANT MOORE, Division 1,
STANLEY SERWINSKY, Executive Director
of Cook County Department of Corrections,
JEFFREY MALEK, Division 1, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 3703—Sidney I. Schenkier, Magistrate Judge.
____________
ARGUED OCTOBER 15, 2002—DECIDED DECEMBER 27, 2002
____________
Before POSNER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Chester Boyce, a prisoner incar-
cerated at the Cook County Department of Corrections
(“CCDOC”), filed a pro se complaint against Lieutenants
Jeffrey Malek and Leroy Moore, as well as the Executive
Director of CCDOC (“Executive Director”) and other in-
dividuals. Proceeding under 42 U.S.C. § 1983, Mr. Boyce
alleged that the defendants violated his Eighth Amend-
ment rights by failing to take action to protect him from
2 No. 01-2809
attacks by fellow inmates and by refusing to provide
medical care. After the completion of discovery, the dis-
trict court granted the defendants’ motion for summary
judgment on all claims. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
Mr. Boyce was incarcerated in Division 1, Tier C-4, of
CCDOC from February 1993 to June 8, 1994, and in Divi-
sion 1, Tier H-1, from June 8, 1994 to June 30, 1994. Lieuten-
ants Moore and Malek were co-supervisors in Division 1 of
CCDOC during 1994; Lieutenant Moore was the senior
supervisor. In June 1994, there were three different shifts
in Division 1, Tier C-4. Prisoners could make complaints
to any officer on these different shifts. Complaints could
also be made to clergy and paramedics, who visited the
tiers on a regular basis, and to social workers, who visited
the tiers by request. In June 1994, there was no protective
custody in Division 1.
Reading the record in the light most favorable to Mr.
Boyce, on June 1, 1994, he was attacked and beaten by
other inmates for ten to fifteen minutes upon returning to
his cell. The attackers threatened to kill Mr. Boyce if he
reported the attack to officials. As a result of the attack,
Mr. Boyce’s eyes became swollen, and he bled from his
left eye and his mouth. Mr. Boyce does not know the
identity of the attackers, nor does he know the reason
for the attack. Mr. Boyce did not file a grievance with the
officer on duty when he made his check, and there is no
mention of the incident in the Tier C-4 logbook for that day.
No. 01-2809 3
Although Mr. Boyce noticed that, after the attack, his
eyes were growing gradually weaker, he did not seek med-
ical attention between June 1 and June 7, 1994. On June 3,
1994, Officer Brown approached Mr. Boyce and inquired
about his condition; Mr. Boyce responded that there was
no problem. The logbook contains an entry on June 3,
1994, stating “Several inmates told [Reporting Officer]
there is a conflict brewing on the [C-4] tier,” R.95, Ex.F at
26. The entry does not mention Mr. Boyce, and there is
no evidence that any defendant saw the entry.
On June 7, 1994, Mr. Boyce informed an officer during
lockup that he desired to be moved off of Tier C-4; an entry
was made in the logbook that states, “Boyce, Chester . . .
refuses to remain on the tier. Supervisor notified. Appeared
to have swollen eyes. Boyce would not elaborate on con-
dition.” Id. at 27. The logbook further contains a June 8,
1994, entry that states, “[Reporting Officer] was informed
by Officer Ware that inmate Boyce, Chester, refused to
lock up. Officer Ware said inmate eyes appear to be swol-
len. Inmate would not inform officer as to how it hap-
pened. Inmate Boyce was then removed to Cermak.” Id.
1
at 29. Mr. Boyce was treated by a physician at Cermak
on June 8, 1994, and returned to CCDOC that day. Upon
his return, because Mr. Boyce refused to return to Tier C-4,
he was moved to Tier H-1 on Lieutenant Malek’s or-
ders. There is no evidence that Mr. Boyce requested fur-
ther protection because of any specific assault or threat.
On June 14, 1994, Mr. Boyce was attacked by fellow
inmates in the H stairwell while he was returning from
yard exercise. An inmate in Division 1, Tier H-1, would
1
Cermak is a separate entity from CCDOC and an extension
of Cook County Hospital.
4 No. 01-2809
have been excused from yard exercise, if he had a med-
ical reason, a physician’s appointment or a fear of assault.
Such an inmate would be placed in a holding cell instead
of going to the yard. Mr. Boyce had requested to be ex-
cused from yard exercise; but, because he had given no
reason for the request, it had been denied. No inmates
from Tier C-4 participated in yard exercise with the Tier
H-1 inmates. Mr. Boyce did not file a grievance, nor does
the logbook mention any incidents involving Mr. Boyce
on that day; nevertheless, he immediately received med-
ical attention from a paramedic in the dispensary.
On June 30, 1994, Mr. Boyce was moved from Division 1
to Division 6, and he went to sick call several times. No
officer refused to send him to the dispensary for medical
attention, and Mr. Boyce was seen at Cermak Health
Services on July 14, 1994. Although Mr. Boyce has under-
gone multiple eye surgeries, he alleges that he lost com-
plete sight in his left eye in early September 1994.
CCDOC policy mandates that, when an officer finds
an inmate in need of medical attention, he must notify a
supervisor, who in turn must notify a paramedic. The
paramedic makes the ultimate decision regarding wheth-
er treatment is necessary; the approval of jail staff is not
required. Mr. Boyce has not presented evidence of any
policy or any action by the defendants to deny inmates
access to Cermak. Nor has he alleged knowledge of any-
thing the defendants did or said to prevent him from
receiving adequate medical care.
B. District Court Proceedings
The district court determined that Mr. Boyce had failed
to present sufficient evidence to withstand summary
judgment with regard to Lieutenants Moore and Malek.
No. 01-2809 5
Mr. Boyce had relied on the existence of three notations
in the jail logbooks. He contended that these entries estab-
lished knowledge on the part of Lieutenants Moore and
Malek as to his dangerous predicament. The district court,
however, found no evidence that these defendants were
required to review the logbooks or that they in fact did
review them. Noting that Mr. Boyce had not presented
any evidence that Lieutenant Malek’s actions were unrea-
sonable, it concluded that Lieutenant Malek’s transfer of
Mr. Boyce from Tier C-4 to Tier H-1 did not constitute
deliberate indifference. R.100 at 13-14. Finally, the district
court granted summary judgment in favor of the Execu-
tive Director because it could not find that the absence
of protective custody was a per se constitutional viola-
tion, nor could it find a pattern of violations through which
to impute knowledge to CCDOC. R.100 at 16.
II
DISCUSSION
We review the district court’s decision to grant sum-
mary judgment de novo. See Mauler v. Bayfield County,
309 F.3d 997, 1000 (7th Cir. 2002); O’Neal v. City of New
Albany, 293 F.3d 998, 1003 (7th Cir. 2002). The Eighth
Amendment requires prison officials to “ ‘take reasonable
measures to guarantee the safety of the inmates’ ” and to
protect them from harm at the hands of others. Farmer
v. Brennan, 511 U.S. 825, 832-33 (1994) (quoting Hudson
v. Palmer, 468 U.S. 517, 526-27 (1984)); see Henderson v.
Sheahan, 196 F.3d 839, 844 (7th Cir. 1999) (noting that the
Eighth Amendment requires states to “ensure that in-
mates receive adequate food, clothing, shelter, protec-
tion, and medical care” (citation omitted)). Liability must
be predicated on a finding of “ ‘deliberate indifference’ to
6 No. 01-2809
inmate health or safety.” Farmer, 511 U.S. at 834 (quoting
Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)); see Sanville
v. McCaughtry, 266 F.3d 724, 735 (7th Cir. 2001) (finding
negligence insufficient to establish deliberate indiffer-
ence); Henderson, 196 F.3d at 844 (requiring “deliberate
indifference” for Eighth Amendment violation). Therefore,
a prison official may be found liable only if he “knows
of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the infer-
ence.” Farmer, 511 U.S. at 837; see Sanville, 266 F.3d at 734
(quoting Farmer’s requirement that official be aware of
facts supporting inference of substantial risk of harm and
that he actually draw the inference); Delgado-Brunet v.
Clark, 93 F.3d 339, 345 (7th Cir. 1996) (same). Moreover, a
supervisor cannot be held liable in a § 1983 action unless
the individual was personally involved in the wrongful
conduct such that he or she caused or participated in
the alleged violation. See Moore v. Indiana, 999 F.2d 1125,
1129 (7th Cir. 1993).
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme
Court held that the Eighth Amendment’s prohibition
against cruel and unusual punishment, made applicable
to the states through the Due Process Clause of the Four-
teenth Amendment, imposes a duty upon states to pro-
vide adequate medical care to incarcerated individuals.
See id. at 103; see also Walker v. Benjamin, 293 F.3d 1030, 1036-
37 (7th Cir. 2002) (noting that deliberate indifference to
prisoners’ serious medical needs violated the Eighth
Amendment (citing Estelle, 429 U.S. at 104-05)). To create
a violation by failing to provide medical care, there must
be “deliberate indifference” to a substantial risk of harm.
Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000) (citing
Farmer, 511 U.S. at 837). This standard requires the plain-
No. 01-2809 7
tiff to establish that: (1) his condition was objectively
2
serious, and (2) state officials acted “with deliberate
indifference to his medical needs, which is a subjective
standard.” Id.; see Walker, 293 F.3d at 1037 (explaining that
deliberate indifference culpability requires more than
negligence but less than “purpose of causing harm or . . .
knowledge that harm will result”).
A. Lieutenant Moore
Mr. Boyce submits that his injuries and predicament were
well-documented in the jail logbook and that a reason-
able jury could conclude that each lieutenant reviewed
the logbook as part of his duties. To survive a motion for
summary judgment, a nonmoving party must present cred-
ible evidence on all matters upon which he bears the bur-
den of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). However, Mr. Boyce has presented no evi-
dence in the record to permit a jury to conclude that su-
pervisors were required to review the logbooks or that
it was Lieutenant Moore’s practice to do so. Moreover,
Mr. Boyce has failed to produce evidence that Lieutenant
Moore actually had knowledge of his plight. Without
more, the logbooks do not create a material dispute that
Lieutenant Moore was aware of the relevant facts re-
quired by Farmer, 511 U.S. at 837, and he may not be
held liable for deliberate indifference to an unknown
threat. At most, any failure to review the logbooks would
be characterized as negligence, which is insufficient to con-
stitute deliberate indifference. See Washington v. Laporte
County Sheriff’s Dep’t, 306 F.3d 515, 518 (7th Cir. 2002)
2
The district court assumed that the eye injury was objectively
serious, see R.100 at 19, and we make the same assumption.
8 No. 01-2809
(“[O]rdinary negligence by prison officials is not enough
to show an Eighth Amendment violation.” (citing Sellers
v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994))); see Walker,
293 F.3d at 1037 (stating that more than negligence is
required).
Mr. Boyce invites our attention to his original com-
plaint and deposition for evidence that an officer in-
formed Lieutenant Moore of his injuries and that Lieuten-
ant Moore’s reply was a callous racist remark. However,
this incident was reported to Mr. Boyce through his cell-
mate who had overheard the alleged comment. Federal
Rule of Civil Procedure 56(e) requires that affidavits
supporting a motion in opposition to summary judgment
must set forth facts that would be admissible in evidence.
No exception to the hearsay rule operates to permit ad-
mission of Mr. Boyce’s cellmate’s repetition of the state-
ment. Consequently, the statement is inadmissible and
may not be considered in determining the correctness of
the grant of summary judgment. See Morrow v. Wal-Mart
Stores, Inc., 152 F.3d 559, 563 (7th Cir. 1998) (“ ‘[H]earsay
is inadmissible in summary judgment proceedings to the
same extent that it is inadmissible in a trial.’ ” (quoting
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997))).
In short, we do not believe that the record, viewed in a
light most favorable to Mr. Boyce, contains sufficient
evidence to permit a jury verdict for Mr. Boyce. Indeed,
even if Lieutenant Moore had become aware of the situa-
tion in Tier C-4, there would still be an insufficient basis
to sustain such a jury verdict because there still would be
no showing of deliberate indifference.
Mr. Boyce’s Eighth Amendment claim for denial of med-
ical care is predicated on the same grounds that we just
have noted as insufficient with respect to the deliberate
indifference to a substantial risk of harm claim. The al-
leged racial remark indicating knowledge of the injury is
No. 01-2809 9
barred by the hearsay rule, and the existence of references
in the logbooks does not suffice to prove that Lieuten-
ant Moore reviewed them and had any knowledge of Mr.
Boyce’s condition. Moreover, the district court correct-
ly reasoned that, even if Lieutenant Moore had reviewed
the entry, the comment “eyes appear to be swollen” would
not present evidence of an obvious excessive risk to Mr.
Boyce’s health sufficient to infer knowledge. R.100 at 19.
See Sherrod, 223 F.3d at 611 (“[O]fficial must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference” (citing Farmer, 511 U.S. at 837)). Con-
sequently, the district court correctly granted summary
judgment to the defendants on Mr. Boyce’s claim of a
violation of his right to receive adequate medical treatment.
B. Lieutenant Malek
Mr. Boyce points out that Lieutenant Malek transferred
Mr. Boyce to Tier H-1 instead of to protective custody. We
cannot say that Lieutenant Malek’s decision evidences
the sort of deliberate indifference necessary to trigger
liability under the Eighth Amendment. Lieutenant Malek
transferred Mr. Boyce to a different tier with a different
inmate population, apparently believing that Tier H-1
would be more secure. See Lewis v. Richards, 107 F.3d 549,
553-54 (7th Cir. 1997) (holding that transfer to a different
area of prison instead of to protective custody relevant
in refuting argument that officials refused to take any ac-
tion and were deliberately indifferent). Mr. Boyce, who did
not know the identity of his attackers, their motive or their
possible gang affiliation, offers no evidence that Lieuten-
ant Malek’s action was unreasonable. Simply put, Mr.
Boyce has failed to carry his burden of introducing evi-
10 No. 01-2809
dence that Lieutenant Malek’s actions were deliberately
3
indifferent.
Mr. Boyce also contends that Lieutenant Malek violated
his Eighth Amendment rights by failing to provide ade-
quate medical treatment. He alleges that, after he returned
from Cermak on June 8, 1994, his “repeated requests to be
returned to Cermak for follow-up medical attention were
completely ignored.” Appellant’s Br. at 21. It may be true
that Mr. Boyce’s requests to return to Cermak were de-
nied, but, according to his deposition, he made the re-
quests to an Officer Washington and to a paramedic. This
evidence cannot establish Lieutenant Malek’s alleged indif-
ference to Mr. Boyce’s medical condition. Consequently,
summary judgment was appropriate on the issue of Lieu-
tenant Malek’s deliberate indifference to Mr. Boyce’s med-
ical condition.
C. Executive Director
Mr. Boyce’s claim against the Executive Director is as-
serted against him in his official capacity; it therefore is
essentially a claim against the municipality, alleging that
the municipality’s policy caused the constitutional dep-
rivation. See Holmes v. Sheahan, 930 F.2d 1196, 1199 (7th
Cir. 1991). Such a claim requires a plaintiff to “demonstrate
that the municipal action was taken with ‘deliberate indif-
ference’ as to its known or obvious consequences.” Bd. of
County Comm’rs of Bryan County, Oklahoma v. Brown, 520
U.S. 397, 407 (1997); Robles v. City of Fort Wayne, 113 F.3d
732, 735 (7th Cir. 1997) (requiring deliberate indifference
for a finding of municipal liability under § 1983). Mr. Boyce
3
Lieutenant Moore testified in his deposition that protective
custody was not available at that time. See R.95, Ex.F at 41.
No. 01-2809 11
contends that the failure to provide for any protective
custody in Division 1 and the requirement that all inmates
attend yard exercise constitute policies that operated to
deprive him of his Eighth Amendment right to freedom
from cruel and unusual punishment.
With respect to the first policy, failure to provide pro-
tective custody, Mr. Boyce provides the court with no au-
thority and relies on the naked allegation that “[a] reason-
able jury could conclude that this lack of a [protective
custody] policy directly caused Boyce’s injuries.” Appel-
lant’s Br. at 18. The failure to provide protective custody
“is not dispositive of the fact that prison officials were
therefore deliberately indifferent to [an inmate’s] safety.”
Lewis, 107 F.3d at 553. However, a plaintiff may prove
“deliberate indifference” by showing a pattern of viola-
tions. Brown, 520 U.S. at 407-08; see Robles, 113 F.3d at 735
(indicating that failure to act after learning of pattern of
violations would be deliberately indifferent). Nevertheless,
Mr. Boyce has not introduced any evidence of a pattern
of constitutional violations that would allow the court to
infer or impute knowledge such that the absence of pro-
tective custody constitutes deliberate indifference. Nor has
Mr. Boyce presented the court with any evidence that the
Executive Director had actual knowledge that Mr. Boyce
was in danger after his transfer to Tier H-1. See id. at 735
(noting that plaintiff must establish direct causal link be-
tween city and unconstitutional conduct).
On Mr. Boyce’s second argument of unconstitutional
policy, mandatory yard exercise, the district court cor-
rectly found that there was no contested issue of material
fact. Both Lieutenants Malek and Moore testified in their
depositions that an inmate would be excused from the yard
if he feared an attack by others. According to Mr. Boyce’s
deposition, Mr. Boyce merely stated to Officer Washington,
“I don’t want to go to the yard.” R.95, Ex.D at 89. Officer
12 No. 01-2809
Washington responded, “[Y]ou’ve got to go. Let’s go. It’s
mandatory.” Id. at 90. Mr. Boyce did not raise a concern
for his safety; pursuant to CCDOC policy, his subjective
desire not to go to the yard, without further explanation,
was not sufficient to excuse his attendance. Therefore,
there was no evidence of deliberate indifference; the dis-
trict court properly granted summary judgment on Mr.
Boyce’s failure to protect claim against the Executive Di-
4
rector.
Conclusion
The district court correctly granted summary judgment
for the defendants because Mr. Boyce failed to establish
a genuine issue of material fact as to the elements of an
Eighth Amendment violation. Accordingly, the judgment
of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
4
Mr. Boyce has waived his claim that the Executive Director’s
actions were deliberately indifferent to Mr. Boyce’s medical
condition by failing to argue the issue on appeal. See FTC v.
World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1025-26 (7th
Cir. 1988) (stating that Federal Rules of Appellate Procedure
require that appellant present in his brief the issues he wishes
to litigate or they are waived).
USCA-02-C-0072—12-27-02