Gregory Kemp v. Fulton County, Illinois

                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 21-1079
GREGORY KEMP,
                                                 Plaintiff-Appellant,
                                v.

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

        Appeal from the United States District Court for the
                    Central District of Illinois.
         No. 17-cv-1404-JBM — Joe Billy McDade, Judge.
                    ____________________

 ARGUED SEPTEMBER 23, 2021 — DECIDED FEBRUARY 25, 2022
                ____________________

   Before KANNE, ROVNER, and WOOD, Circuit Judges.
    WOOD, Circuit Judge. While Gregory Kemp was confined
at the Fulton County Jail awaiting his trial, he became in-
volved in a melee with three other detainees. Kemp cried out
for help, but no one heard him or came to his aid until the
beating was over. He suffered serious injuries from the inci-
dent.
2                                                     No. 21-1079

   Believing that the Jail’s failure to protect him from the at-
tack violated his rights under the Fourteenth Amendment to
the U.S. Constitution, Kemp brought this action under 

 against Fulton County Sheriff Jeff Standard, Ser-
geant Christopher Ford, and Officer Sheldon Burget. After
discovery, the district court granted defendants’ motion for
summary judgment. We affirm.
                                I
                                A
   Because the case was resolved on summary judgment, we
view the facts in the light most favorable to Kemp, the non-
moving party. See Dixon v. Cnty. of Cook, 

 (7th
Cir. 2016). The account that follows reflects this perspective.
    As of September 5, 2016, Kemp and three others—Bradley
Dearborn, Edwin Galvez, and Luis Lind-Enriquez—were all
pretrial detainees at the Jail. They were housed in Cell Block
G, where they had lived together without incident for several
months. That streak of good behavior came to an end when
Kemp had an argument with Galvez. The altercation led
Dearborn to threaten to “get [Kemp].” Shortly after Dearborn
issued this threat, defendant Sheldon Burget, a correctional
officer on duty during the incident, made his rounds through
the common area. Kemp considered telling Burget about
Dearborn’s statement, but he chose not to do so, in order to
avoid being seen as a “snitch.” Instead, Kemp made the un-
fortunate decision to confront Galvez and Dearborn violently.
Kemp threw the first punch, and Dearborn and Galvez re-
sponded by beating him.
    Jail surveillance video shows that Lind-Enriquez soon
joined in the beating; after a few hits, he went to his cell to get
No. 21-1079                                                 3

a sock stuffed with a hard “paintball,” made (as the name sug-
gests) from dried paint. Back in the melee, Lind-Enriquez be-
gan striking Kemp with the makeshift weapon. Lind-En-
riquez can be seen on the video throwing a toilet plunger at
Kemp, though he missed. Kemp yelled for help, but neither
Burget nor anyone else responded.
    That beating lasted only a few minutes. Afterwards, the
video shows Kemp cleaning the common area with soap and
bleach while Lind-Enriquez washed blood off of his body.
Kemp testified that the others told him they’d “all be cool.”
But about 20 minutes later, tensions flared again, Lind-En-
riquez attacked Kemp a second time, and Dearborn and Gal-
vez joined in. The second fight ended with Kemp lying mo-
tionless on the floor. Another correctional officer, Tiffany Wil-
liams, who was conducting her assigned rounds, stopped at
the common area a few minutes after the second beating
ended. Williams saw Kemp lying on the floor and called for
emergency medical services. The medics responded about
eight minutes later; they moved Kemp onto a stretcher and
later sent him to the hospital.
    As we said, Burget was patrolling the Jail as all this was
unfolding. But, as he admitted during his deposition, he had
about 60% hearing loss in one ear and about 40% hearing loss
in the other. His physician had prescribed a hearing aid for
one ear, but Burget stopped wearing it about six months be-
fore the September 5 incident and thus was not using it at the
time of the fight.
    Kemp speculates that if Burget had been wearing his hear-
ing aid on the day of the attack, he would have heard Kemp’s
cries for help. But the record contains no evidence that would
permit such a finding. Nothing indicates that Burget’s hearing
4                                                 No. 21-1079

loss was severe enough to prevent him from hearing the com-
motion, or more generally from performing his job. Both par-
ties agree that Burget frequently did hear fights, loud noises,
and yelling while in the Jail. Kemp even testified that Burget
had responded to his calls in the past. Similarly, the record
lacks any evidence showing how much Burget’s hearing aid
improved his hearing, if at all.
    Kemp, pointing to the Jail’s logs showing the rounds cov-
ered by each guard, asserts that Burget was standing in a
nearby hallway where someone with better hearing would
have heard the sounds of a fight. But Burget’s location during
the beating was contested. Defendants admit that sound car-
ries through the Jail, but they also offered evidence that the
Jail was often noisy, making it difficult for guards to overhear
what was happening in other parts of the building. At least
three other Jail employees (correctional officer Williams and
dispatchers Tanisha Bradford and Keith Wojtkiewicz) were
also near the site of the brawl. Bradford and Wojtkiewicz (nei-
ther of whose auditory ability was challenged) deny hearing
any telltale noise. Williams testified that she heard sounds of
a fight only as she walked toward the Jail’s G Block during her
rounds. She described hearing the sound of “two people
wrestling” and “stomping,” but she denied hearing cries for
help.
    Neither Sheriff Standard nor Sergeant Ford was on the
premises during the September 5 beating. Kemp contends,
however, that they are personally responsible for what hap-
pened because they each knowingly allowed Burget to work
as a corrections officer despite his diminished hearing. Stand-
ard and Ford deny knowing that Burget had a hearing impair-
ment (or at least one that mattered). Kemp sees a disputed
No. 21-1079                                                    5

material fact on this point; he argues that Standard and Ford
must have known about Burget’s hearing problem because
Burget previously had worked in the Jail as a dispatcher in
2007 or 2008. Burget was dismissed from that job because of
“problems with [his] hearing.” Sheriff Standard was aware of
this when he later hired Burget. (The defendants assert that
Burget was actually fired from the dispatcher position be-
cause of general incompetence, but we must credit the version
that favors Kemp.)
                               B
   Kemp filed this action against Standard, Ford, and Burget.
His complaint also named Williams as a defendant, but he has
abandoned his claims against her on appeal. He also joined
Fulton County as a necessary party for payment of any settle-
ment or judgment. See 745 ILCS § 10/9-102.
    As we noted earlier, the district court entered judgment
for the defendants. Kemp could not prevail against Burget,
the court concluded, because nothing in the record would
have put a reasonable guard on notice of a substantial risk of
harm to Kemp. With respect to Standard and Ford, the court
concluded that Kemp had failed to point to any evidence that
would support a finding that they were aware of the degree
of Burget’s hearing loss or that Burget’s hearing loss was caus-
ally linked to Kemp’s injury. Kemp has appealed the judg-
ments in favor of all three defendants.
                               II
   We consider the correctness of a district court’s grant of
summary judgment independently, without any thumb on
the scale in favor of the district court’s assessment. Dixon, 

. Summary judgment is proper against a party who,
6                                                   No. 21-1079

after sufficient time for discovery, fails to show how a fact-
finder could find in his favor on an essential element on which
the party would bear the burden of proof at trial. Celotex Corp.
v. Catrett, 

 (1986).
    We begin with Kemp’s failure-to-protect claim against
Burget, and then turn to the supervisory defendants. Incarcer-
ated people have a clearly established right to be free from
physical harm inflicted by others in the institution. See, e.g.,
Farmer v. Brennan, 

 (1994) (“[P]rison officials
have a duty … to protect prisoners from violence at the hands
of other prisoners.”); Rice ex rel. Rice v. Corr. Med. Serv., 

 (7th Cir. 2012) (“Jail officials have a duty to pro-
tect inmates from violent assaults by other inmates.”). Correc-
tional officials who are deliberately indifferent to inhumane
conditions of confinement, including violence behind bars,
may be held liable under 

. See Rice, 

; Guzman v. Sheahan, 

 (7th Cir.
2007).
                               A
    Because Kemp was a pretrial detainee, his conditions-of-
confinement claim arises under the Due Process Clause of the
Fourteenth Amendment, which is governed by an objective
standard. Hardeman v. Curran, 

 (7th Cir. 2019). In
contrast, those who are serving prison sentences after a trial
must rely on the Eighth Amendment’s bar on cruel and unu-
sual punishment, which requires a showing of both an objec-
tively unreasonable deprivation of rights and subjective de-
liberate indifference. The difference in standards stems from
the fact that pretrial detainees remain entitled to the presump-
tion of innocence, and so the Constitution protects them from
No. 21-1079                                                    7

any punishment for the acts that led to their detention. Miranda
v. Cnty. of Lake, 

 (7th Cir. 2018).
    The Supreme Court underscored the importance of the
distinction between convicted inmates and those who are de-
tained pending adjudication of their cases in Kingsley v. Hen-
drickson, 

 (2015). There it held that a pretrial de-
tainee bringing an excessive-force claim under the Fourteenth
Amendment need not satisfy the Eighth Amendment’s sub-
jective-intent standard.
    While Kingsley was specifically about excessive-force
claims, we have recognized that “[n]either the Supreme
Court’s logic nor its language” is limited to that context. Har-
deman, 

. Recognizing the Supreme Court’s “sig-
nal[] that courts must pay careful attention to the different sta-
tus of pretrial detainees” as compared with convicted offend-
ers, we have applied Kingsley’s objective unreasonableness
test to other Fourteenth Amendment claims, including chal-
lenges to inadequate medical care and other conditions of pre-
trial confinement. Hardeman, 933 F.3d at 822–23; Miranda, 

. Other circuits, including the Second, Sixth, Ninth,
and Tenth, have similarly concluded that Kingsley’s objective
standard applies to some or all conditions-of-confinement
cases brought by pretrial detainees. See Brawner v. Scott Cnty.,

 (6th Cir. 2021) (medical need); Colbruno v.
Kessler, 

, 1161–63 (10th Cir. 2019) (general condi-
tions of confinement); Gordon v. Cnty. of Orange, 

, 1122–25 (9th Cir. 2018) (medical need); Darnell v. Pineiro,

, 34–35 (2d Cir. 2017) (general conditions of con-
finement). But see Strain v. Regalado, 

 (10th Cir.
2020) (holding that Kingsley is limited to excessive-force cases
8                                                     No. 21-1079

and applying both a subjective and objective standard to med-
ical-care cases).
    Following Kingsley, Miranda, and Hardeman, a plaintiff
such as Kemp challenging the conditions of his pretrial deten-
tion need show only that a defendant’s conduct was “objec-
tively unreasonable.” Hardeman, 

. Burget thus
would be liable if he “acted purposefully, knowingly, or per-
haps even recklessly” in coming to work without his hearing
aid, but not if he were no more than negligent. Miranda, 

; see also Daniels v. Williams, 

, 330–31
(1986) (a state official’s “mere lack of due care” does not “‘de-
prive’ an individual of life, liberty, or property under the
Fourteenth Amendment.”). Objective reasonableness “turns
on the facts and circumstances of each particular case.” Kings-
ley, 586 U.S. at 397.
    We have not yet had the occasion to consider how Kingsley,
Miranda, and Hardeman apply to a failure-to-protect claim.
Our pre-Kingsley cases follow the Eighth Amendment’s ap-
proach (i.e., objective harm plus subjective intent) to pretrial
settings. See, e.g., Rice, 

; Guzman, 

; Butera v. Cottey, 

 (7th Cir. 2002). But, just
as we have done with medical-care and excessive-force cases,
we must now take Kingsley into account.
    We begin by recalling that in Kingsley, the Supreme Court
explained that an excessive-force claim raises two distinct
state-of-mind issues:
    The first concerns the defendant’s state of mind with
    respect to his physical acts—i.e., his state of mind with
    respect to the bringing about of certain physical conse-
    quences in the world. The second question concerns
No. 21-1079                                                      9

   the defendant’s state of mind with respect to whether
   his use of force was “excessive.” … We conclude with
   respect to that question that the relevant standard is
   objective not subjective.
Kingsley, 

. In Kingsley itself, there was no dis-
pute over the first question: both parties agreed that the de-
fendant officers had intentionally stung Kingsley with a Taser.
But on the second question—whether that degree of force was
excessive—the Court stated that “the defendant’s state of
mind is not a matter that a plaintiff is required to prove.” 

It summarized its holding as follows: “a pretrial detainee
must show only that [1] force purposely or knowingly used
against him [2] was objectively unreasonable.” 

 at 396–97.
For example, “if an officer’s Taser goes off by accident,” a pre-
trial detainee could not prevail, because she could not show
that the officer knowingly used force. 

. But a pretrial
detainee does not need to show that an officer who intention-
ally tased her also understood that the use of the Taser was
excessive or that the officer otherwise intended harm or pain.
The detainee need only demonstrate that a reasonable person
would recognize that the use of force was objectively unrea-
sonable under the circumstances. 

 at 396–97.
    The Ninth Circuit, sitting en banc, applied these principles
to failure-to-protect claims in Castro v. Cnty. of Los Angeles, 

 (7th Cir. 2016) (en banc). It held there that a pretrial
detainee does not need to show that an officer with all the in-
formation about a potential health or safety risk actually did
put the puzzle pieces together. In doing so, it contrasted the
test in Fourteenth Amendment cases with the Eighth Amend-
ment’s requirement to show subjective deliberate indiffer-
ence. 

. At the same time, as we have done, it
10                                                   No. 21-1079

acknowledged that “negligent conduct does not offend the
Due Process Clause.” Miranda, 

 (citing Daniels,
474 U.S. at 330–31); see Castro, 844 F.3d at 1071. The Ninth Cir-
cuit reasoned that a pretrial detainee must “prove more than
negligence but less than subjective intent—something akin to
reckless disregard.” Castro, 

. It held that:
     [T]he elements of a pretrial detainee’s Fourteenth
     Amendment failure-to-protect claim against an indi-
     vidual officer are:
        (1) The defendant made an intentional decision
     with respect to the conditions under which the plaintiff
     was confined;
         (2) Those conditions put the plaintiff at substantial
     risk of suffering serious harm;
        (3) The defendant did not take reasonable available
     measures to abate that risk, even though a reasonable of-
     ficer in the circumstances would have appreciated the high
     degree of risk involved—making the consequences of the
     defendant’s conduct obvious; and
        (4) By not taking such measures, the defendant
     caused the plaintiff’s injuries.

 (emphasis added). The third of these elements is the critical
one for our purposes. Put more succinctly, it requires only
that the defendant’s conduct be objectively unreasonable.
    Like the Ninth Circuit, and following our own post-Kings-
ley line of cases, we now hold that Kingsley abrogates Guzman,
Butera, and their kin to the extent that they require pretrial
detainees to show, in a failure-to-protect case, that a defend-
ant was subjectively “aware of a substantial risk of serious
No. 21-1079                                                  11

injury.” Guzman, 

 (citing Butera, 

). This requirement cannot be reconciled with Kingsley’s
language, reasoning, and reminder to “pay careful attention
to the different status of pretrial detainees.” Miranda, 

. We hold, as the Ninth Circuit did in Castro, that the
defendant officer must intend to carry out a certain course of
actions; negligence is not enough. At that point, the remaining
question is whether that course is objectively reasonable. If
not, there is a Fourteenth Amendment violation.
                               B
   Kemp urges that he can meet this standard with respect to
Burget, because Burget intentionally chose not to wear his
hearing aid on the day of the fight. We agree with him in part:
the facts he presented at summary judgment, if believed,
show that he satisfies the first point. But more is needed to
show that a trial is necessary. The remaining questions are
whether that decision put Kemp at substantial risk of serious
harm; whether a reasonable officer in Burget’s shoes would
have appreciated the risk that his actions entailed; and
whether Burget’s failure to wear his hearing aid caused
Kemp’s injuries.
    Our own review of this thin record convinces us that
Kemp has not presented enough evidence to permit a trier of
fact to rule for him on these latter elements. Most importantly,
he has not pointed to evidence showing that Burget’s hearing
impairment and decision not to wear a hearing aid caused
Kemp’s injuries. Nothing in the record indicates that Burget’s
hearing was so poor that he could not adequately perform his
job. To the contrary, Burget had done his job without his hear-
ing aid for six months. If there was evidence that his perfor-
mance was wanting during that period, it did not make it into
12                                                    No. 21-1079

this record. The record is also devoid of evidence that demon-
strates that a person with unimpaired hearing would have
been alerted to the first fight by the noise it generated. Dis-
patchers Bradford and Wojtkiewicz denied hearing the beat-
ing, and Officer Williams testified that she heard the second
fight only as she got very close to Block G. Their testimony
favors the County defendants’ position. Finally, no evidence
demonstrates how much Kemp’s hearing aid improved his
hearing or why he stopped wearing it when he did. His testi-
mony that it was ineffective went unrebutted.
    The defendants also argue persuasively that Kemp did not
present any evidence showing that any of them was on notice
of a serious risk of harm to him. Kemp admitted that he never
reported his verbal disagreement with Galvez, Dearborn, and
Lind-Enriquez or the ensuing threats to Jail employees, and
that prior to the beating, all four men had cohabited peace-
fully for months. Without any evidence that Burget should
have been on notice of a substantial risk to Kemp’s safety, or
that his decision not to wear a hearing aid led to Kemp’s inju-
ries, a jury could not conclude that Burget’s actions were ob-
jectively unreasonable.
                                III
                                A
    Kemp also sued Standard and Ford in their individual ca-
pacities. Because the Supreme Court has foreclosed respondeat
superior liability for section 1983 actions, a plaintiff may hold
a government official “liable [only] for his or her own miscon-
duct.” Ashcroft v. Iqbal, 

 (2009). To be person-
ally liable, a supervisor must “know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye for fear
No. 21-1079                                                     13

of what they might see.” Matthews v. City of East St. Louis, 

 (7th Cir. 2012). Kemp argues that Standard and
Ford knowingly hired and retained a hearing-impaired cor-
rectional officer. Although Standard and Ford deny knowing
about Burget’s hearing loss, we assume, favorably to Kemp,
that they knew about it.
    Kingsley’s objective-unreasonableness test applies equally
to supervisory-liability claims. That is because the state of
mind necessary to trigger a supervisor’s liability varies with
the constitutional provision at the heart of the claim, in much
the same way that the state of mind needed to establish a sec-
tion 1983 violation does. See Barkes v. First Corr. Med., Inc., 

 (3d Cir. 2014), cert. granted, judgment rev’d on
other grounds, Taylor v. Barkes, 

 (2015); see also
Locke v. Haessig, 

 (7th Cir. 2015); Dodds v. Richard-
son, 

 (10th Cir. 2010) (holding that section
1983 plaintiffs may hold supervisors liable by showing that
they “acted with the state of mind required to establish the
alleged constitutional deprivation.”). Thus, applying Kings-
ley’s objective-unreasonableness test, Kemp can defeat sum-
mary judgment only if the facts viewed in the light most fa-
vorable to him show that Standard and Ford acted purpose-
fully, knowingly, or with reckless disregard for the conse-
quences of hiring and retaining Burget despite his hearing
disability. See Miranda, 

. Once again, he must
show more than negligence. 

                                B
   Standard and Ford argue that Kemp’s wrongful hiring
and retention arguments are waived because he did not spell
them out in his complaint. This is incorrect. “[C]omplaints
need not plead legal theories,” Miranda, 

 (7th
14                                                No. 21-1079

Cir. 2018), and Kemp did raise these arguments before the dis-
trict court. His supervisory-liability theory is thus properly
before us. Nonetheless, he cannot prevail for two reasons.
    The first is the same causation problem that dooms his
claim against Burget: there is no evidence in the record that
would allow a reasonable jury to conclude that another officer
with no hearing impairment would have heard the fight and
intervened earlier. Second, Kemp has presented no evidence
that Standard and Ford knew that Burget was not wearing his
hearing aid or that they had any reason to believe that he was
unable to perform his job duties without the device. Without
notice that Burget was posing a danger to the people detailed
in the Fulton County Jail, his supervisors’ decision to retain
him may have been negligent, but there is no evidence that it
was purposeful, knowing, or reckless. See Jones v. City of Chi-
cago, 

 (7th Cir. 1988) (“[S]upervisors who are
merely negligent in failing to detect and prevent subordi-
nates’ misconduct are not liable, because negligence is no
longer culpable under section 1983.”).
                              IV
    On this record, Kemp has not presented sufficient evi-
dence for a reasonable jury to conclude that defendants Bur-
get, Standard, or Ford took objectively unreasonable actions
that caused his injuries. We therefore AFFIRM the district
court’s grant of summary judgment to all defendants.