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Dismissal of Suit – Deliberate Indifference

By: Derek Hawkins//October 31, 2016//

Dismissal of Suit – Deliberate Indifference

By: Derek Hawkins//October 31, 2016//

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7th Circuit Court of Appeals

Case Name: Jairo E. Ramos v. Gary Hamblin, et al

Case No.: 15-3052

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges.

Focus: Dismissal of Suit – Deliberate Indifference

“The complaint charges the defendants, who are supervisory personnel at Stanley, including its warden, with deliberate indifference to the danger of the plaintiff’s being sexually assaulted by DaSilva. All prisoners at Stanley have a cellmate, randomly assigned in the first instance, and the plaintiff claims that the defendants were aware of, but did nothing to eliminate, the danger of placing DaSilva in the same cell with him. Not only had DaSilva committed a previous sexual assault, albeit against a woman, but in addition the plaintiff claims to have been perceived as homosexual, which may have made him more likely to be assaulted, sexually or otherwise. More broadly the plaintiff attacks the practice of random assignment of cellmates. Presumably his

previous cellmate had been transferred to a different cell (or different prison, or had completed his prison term and been released), leaving a gap that the prison filled with a random assignment, namely of DaSilva. . . Had the plaintiff any fear of DaSilva, it behooved him to ask the prison staff to transfer him to another cell. If he either is a homosexual or, as he contends, felt vulnerable because he was believed by prison staff and prisoners to be one, it behooved him to complain to prison staff, consistently with the advice in the prison handbook. He didn’t do that. He argues that random assignment of cellmates is deliberate indifference per se to prisoners’ safety. But the only alternative he suggests (for he does not argue that all prison inmates should be in solitary confinement or even that he should have been) is that sex offenders never be placed in cells with any inmate who for whatever reason is at a heightened risk of being sexually assaulted. Given the number of characteristics that could trigger such a heightened risk, sex offenders would probably have to be either placed in solitary confinement or given cellmates who were also sex offenders. The feasibility of such a solution can be questioned; but more important is the fact that the plaintiff presents no evidence that it would promote prison safety more than the handbook, which emphasizes a prisoner’s right to complain about danger posed to him by a cellmate. Apropos is our comment in Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995), that if prison staff “place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent—even grossly negligent or even reckless in the tort sense—in failing to know.” We can’t even say that administrators of the Stanley Correctional Institution were negligent or reckless in erecting this policy. The line officers who assigned Ramos and DaSilva to the same cell may have been negligent or reckless, but he hasn’t sued them—just the administrators.”

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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