In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-1961
ANTHONY RICCARDO,
                                           Plaintiff-Appellee,
                              v.

LARRY RAUSCH,
                                        Defendant-Appellant.

                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
      No. 99-372-CJP—Clifford J. Proud, Magistrate Judge.
                        ____________
    ARGUED OCTOBER 22, 2003—DECIDED FEBRUARY 27,
            2004—AMENDED JULY 12, 2004
                    ____________



 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
2                                                No. 02-1961

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 ver-
dict, 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 ad-
ministrative process in Illinois does not provide. See Porter
v. Nussle, 

(2002); Booth v. Churner, 

(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, 

(7th Cir. 2002); Strong v. David, 

(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 

.
No. 02-1961                                                 3

  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 administra-
tion. 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.” 

. The
document that Riccardo filed is at the border of intelligibil-
ity; 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 administra-
tion 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
4                                              No. 02-1961

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 assis-
tance 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
No. 02-1961                                               5

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 attrib-
uted 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 circum-
stances. All that can be expected is that guards act re-
sponsibly under the circumstances that confront them. See
McGill v. Duckworth, 

(7th Cir. 1991). A guard
may be responsible without being credulous. Some prison-
ers 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
6                                                No. 02-1961

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, 

(1993); Wilson v. Seiter, 

(1991); Estelle v.
Gamble, 

(1976). “Deliberate indifference” means
subjective awareness. See Farmer v. Brennan, 

(1994). It is not enough, the Court held in Farmer, that the
guard ought to have recognized the risk. Instead, “the
official must both be aware of facts from which the infer-
ence could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” 

  Rausch contends that Riccardo did not face a “substantial
risk of serious harm” from Garcia on the evening of May 28,
1997; that, if such a risk was present, Rausch did not
appreciate its existence; and that at all events he is entitled
to qualified immunity because reasonable officers would not
necessarily have understood that the law clearly required
Riccardo and Garcia to be in separate cells. The first two
matters (the objective and subjective components of the
eighth amendment) are for the jury in the first instance,
with appellate review limited to the question whether any
reasonable juror could have found that the requisite level of
risk existed, and that Rausch knew it. Immunity, however,
is a matter of law for the court, to be decided without
deference to the jury’s resolution—and preferably before the
case goes to the jury. See Saucier v. Katz, 

, 202
(2001); Anderson v. Creighton, 

(1987). The
district court brushed aside Rausch’s invocation of immu-
nity, writing that a guard cannot benefit from immunity if
the action taken was not a reasonable response to a risk
actually foreseen. That approach, which merges immunity
No. 02-1961                                                    7

and the merits, is incompatible with Saucier and its
predecessors. 

. Immunity protects
officials who act at the “hazy border” (id. at 206) between
the lawful and the forbidden. That Rausch may have
overstepped the line does not mean that every reasonable
officer would have been bound to know that Rausch acted
improperly. We need not pursue the immunity defense,
however, because Saucier calls on appellate courts to
address the merits first, see 

and Rausch is
entitled to prevail outright: no reasonable juror could have
concluded, on this record, that Rausch actually recognized
that placing Garcia and Riccardo together exposed Riccardo
to substantial risk.
  Now it might seem that Rausch had to appreciate the
risk, because (a) Riccardo claimed to fear for his life if celled
with any member of the Latin Kings, and (b) Garcia in fact
harmed Riccardo. One problem with relying on how things
turned out to show knowledge of risk beforehand is that
Garcia did not act for the Latin Kings; he told Riccardo that
he was fulfilling a personal fantasy, and Riccardo believed
this explanation. Thus the risk that Riccardo professed to
fear (a “hit”) did not come to pass. Even under the law of
negligence, this is an important distinction. If a school
district entrusts a bus to a driver with a bad drinking
record, and the tipsy driver runs the bus off the road while
speeding, the school district is liable; but if instead there is
an accident for which the driver is not at fault (a tree falls
on bus), or the driver collapses of a heart attack while on
the road, the district is not liable, because that was not the
type of risk created or increased by the negligent conduct
even though hiring this particular driver was in the causal
chain. See, e.g., Berry v. Sugar Notch Borough, 

,

(1899). The risk from which Riccardo sought
protection was not realized; for all this record shows, the
(objectively evaluated) risk to Riccardo of sharing a cell
with Garcia was no greater than the risk of sharing a cell
with any other prisoner.
8                                                No. 02-1961

  As for Rausch’s subjective assessment: though Riccardo
initially asserted mortal fear, when later asked whether
he “had a problem” with Garcia he shook his head to give a
negative answer. Rausch then had to decide which state-
ment to believe. Riccardo argues, and the jury evidently
concluded, that Rausch should have believed the first
statement, communicated in private, rather than the sec-
ond, communicated in Garcia’s presence. A rational jury
could have thought that guards should give priority to
statements made in private. (Rausch testified that, if
Riccardo had claimed to “have a problem” with Garcia, they
would have been separated; but Riccardo might have feared
the consequences in a later encounter in the prison’s
general population.) Still, what Rausch should have
believed is not the right question; we need to know what he
did believe. No reasonable jury could have found, in light of
Riccardo’s denial of “a problem” with Garcia and Rausch’s
decision to act accordingly, that Rausch subjectively
appreciated that his action would expose Riccardo to a
substantial risk of serious harm.
  As we have already explained, prisoners may object to
potential cellmates in an effort to manipulate assignments,
or out of ignorance; thus although a protest may demon-
strate risk it does not necessarily do so. The Constitution
does not oblige guards to believe whatever inmates say.
How does a reasonable guard separate fact from fiction?
Rausch knew when making the assignment at least two
things beyond Riccardo’s contradictory assertions. First,
Rausch knew that Garcia was himself in segregation for
protection from the Latin Kings (or at least a subset of
them). Perhaps Garcia was manipulating the system him-
self, falsely asserting to fear the Latin Kings so that he
could serve as their assassin; but at least at first cut Garcia
could not be deemed a gang enforcer (and, as we learned ex
post, his attack on Riccardo was neither a “hit” nor gang
related). Second, Rausch knew that Garcia had a clean
No. 02-1961                                               9

record in prison. He had not been disciplined for acts of
violence (let alone for sexual assault). That makes it
reasonable for Rausch to have deemed Riccardo’s initial
protestation unjustified. It is not as if Rausch housed
Riccardo with a known sexual predator.
   Lest this observation be thought to leave prisoners with-
out protection from assaults by others with “clean” records,
we add that there may be other ways to show both an
objectively serious risk and the guards’ knowledge of that
risk. For example, Riccardo might have attempted to dem-
onstrate that there is a strong correlation between pris-
oners’ professions of fear and actual violence. How many
murders (or homosexual assaults) occur in Centralia (or the
Illinois prison system) per hundred inmate-years of cus-
tody? How many violent events were preceded by requests
for protection? How many requests for protection were
dishonored, yet nothing untoward happened? Data along
these lines would have enabled a jury (and the court) to
evaluate actual risks even though Riccardo was unable to
show that Rausch should have deemed Garcia to present an
especial risk. If violence is common at Centralia, and
inmates have good track records in identifying potential
aggressors, then guards who do not have their heads in the
sand must actually (that is, subjectively) understand the
risk an inmate faces when a protest is disregarded. But if
violence is rare, or if there is poor correlation between
inmates’ alarums and subsequent violence, then Riccardo’s
initial protest would not have provided Rausch with actual
knowledge of an impending assault. The record does not
contain any evidence along these lines. That leaves only
Riccardo’s say-so, and for reasons we have already given a
prisoner’s bare assertion is not enough to make the guard
subjectively aware of a risk, if the objective indicators do
not substantiate the inmate’s assertion.
  Rausch also was entitled to believe that his assignment
of Garcia and Riccardo to share a cell would last for one
10                                               No. 02-1961

night only. During the next day shift the placement office,
armed with better information, was supposed to make a
fresh evaluation and, if appropriate, a new assignment.
Apparently that did not happen; the record does not show
why. (Maybe it did happen and the staff approved Rausch’s
action.) If Rausch knew that the staff charged with this re-
sponsibility routinely failed to carry it out, then he might
have been obliged to take additional precautions (such as
separate interviews of Garcia and Riccardo to probe these
issues more deeply) before making an assignment. Rausch
himself testified that separate interviews would have been
better practice, but the Constitution does not enforce all
“better practices”; this is one respect in which the eighth
amendment standard differs from the negligence standard.
But Riccardo does not contend, and the record does not
demonstrate, that disregard of the classification system at
Centralia was so common that Rausch was bound to know
that his assignment would last indefinitely. Nor was
Rausch bound to foresee that, if Riccardo was in genuine
fear, he would neglect to complain the next day, when he
readily could have done so. (Recall that Riccardo filed two
grievances on May 29 about other subjects.) Riccardo tes-
tified that he was too terrified to protest and was put off by
Rausch’s assertion that prisoners in segregation can’t refuse
assignments; yet grievances are confidential (so Garcia
would not have known), and prisoners often appeal over the
head of a guard who has told them that something can’t or
won’t be done. Riccardo had already objected to, and
obtained the removal of, at least one cellmate assigned to
him in segregation. At all events, the question on the table
is what Rausch knew (or deliberately avoided learning) on
May 28; and there is no evidence that Rausch subjectively
believed that Riccardo would fail to use his opportunity to
seek further review the next day.
  Illinois is free, if it wishes, to give prisoners veto power
over the identity of their cellmates. But the eighth amend-
No. 02-1961                                                 11

ment does not do so of its own force, and prisoners cannot
use the Constitution to achieve this control indirectly by
making unsubstantiated assertions. The constitutional
question is not what Riccardo (initially) said, but what
Rausch actually believed. Some prisoners are manipulative,
some are mistaken, and some are not only honest but also
accurate. The Constitution does not oblige guards to assume
(on pain of absolute liability if an assault later occurs) that
all prisoners are in the third category; Farmer articulates
a different, and more demanding, standard, preserving
room for both independent judgment and honest mistake on
the guards’ part. This record does not permit a reasonable
jury to find that Rausch knew or deliberately disregarded
the fact that his actions subjected Riccardo to a substantial
risk off serious harm, so the judgment is
                                                   REVERSED.




  WILLIAMS, Circuit Judge, dissenting. While I agree that
Anthony Riccardo did in fact exhaust his administrative
remedies, I disagree with the majority’s decision to overturn
the judgment in this action as a reasonable jury had ample
evidence to find that Lieutenant Larry Rausch was deliber-
ately indifferent to the substantial risk of harm Riccardo
faced by being celled with Juan Garcia. Therefore, I respect-
fully dissent.
  On May 30, 1997, while celled with Juan Garcia, a known
member of the Latin Kings, Riccardo’s head was forcibly
shaven by Garcia such that Riccardo was “bleeding pretty
bad.” Tr. I at 81-82. Garcia then attempted to sodomize
Riccardo; however, he was able to resist. Tr. II at 50. After
12                                                  No. 02-1961

Riccardo resisted, Garcia ejaculated on Riccardo’s feet. Tr.
I at 83-84. Riccardo was then forced to perform oral sex on
Garcia for 15 to 20 minutes. 

ended when an
officer walked by the cell. As the majority notes, the events
which give rise to Lt. Rausch’s liability are limited to the
happenings on the evening of May 28, 1997, when Lt.
Rausch replaced Lt. Alemond1 as the lieutenant in charge
of the segregation and receiving units at Centralia prison.2
  On appeal, Lt. Rausch contends, and the majority agrees,
that the evidence introduced at trial was legally insufficient
to support a finding of liability under the Eighth Amend-
ment. To sustain overturning a jury verdict, the record
must demonstrate no “legally sufficient evidentiary basis
for a reasonable jury to find for the non-moving party.”
Payne v. Milwaukee County, 

, 432 (7th Cir.
1998). While undertaking this assessment, we analyze the
“the totality of the evidence,” Sheenan v. Donlen Corp., 

, 1043 (7th Cir. 1999), and are obliged to leave the
judgment undisturbed unless the moving party can show
that “no rational jury could have brought in a verdict
against him.” EEOC v. G-K-G, Inc., 

, 745 (7th
Cir. 1994). It is not within the province of the appellate
courts to “reweigh the evidence.” Knox v. State of Indiana,

, 1332 (7th Cir. 1996). Lastly, and most
importantly, all reasonable inferences must be analyzed in
the light most favorable to Riccardo as the non-moving
party. 

.


1
  Riccardo previously complained to Lt. Alemond that he feared
being celled with Garcia because he was a Latin King, however,
the record reveals that this previous complaint was not voiced to
Lt. Rausch and therefore may not support a finding of liability
against him.
2
  Lt. Rausch testified that he had no recollection of the events
which transpired on May 28. Tr. III at 68. Thus, the jury was left
with Riccardo’s testimony concerning the events of that evening.
No. 02-1961                                                 13

  In Farmer v. Brennan, 

, 834 (1994) the Court
bifurcated the standard for Eighth Amendment liability
into an objective element and a subjective element. First,
the potential harm to the inmate must be objectively
serious. 

v. Seiter, 

, 298
(1991)). Second, under the subjective prong, the prison
official must “deliberately disregard” this potential harm by
being “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and
[also] draw[ing] the inference.” 

  The second inquiry is a question of fact, sustainable
through circumstantial evidence, 

mandating an
“inquiry into a prison official’s state of mind.” 

(quoting 

). “A prisoner normally
proves actual knowledge of impending harm by showing
that he complained to prison officials about a specific threat
to his safety.” McGill v. Duckworth, 

, 349 (7th
Cir. 1991) (reasoning that the scienter requirement is
satisfied when a prison guard, “[s]uspect[s] something is
true but shut[s] [his] eyes for fear of what [he] will learn” or
“[goes] out of [his] way to avoid acquiring unwelcomed
knowledge”).
  The Supreme Court also cautioned that an “Eighth
Amendment claimant need not show that a prison official
acted or failed to act believing that harm actually would
befall an inmate; it is enough that the official acted or failed
to act despite his knowledge of a substantial risk of serious
harm.” 

. Likewise, a claimant need
not prove that a prison official was aware of the specific
type of harm which befell the prisoner, only that the prison
official was aware that a substantial risk of some type of
danger existed. See Haley v. Gross, 

, 643 n.33
(7th Cir. 1996) (applying 

) (uphold-
ing jury verdict for $1.65 million based on a finding that
prison guards were deliberately indifferent by failing to
respond to a prisoner’s repeated request to be removed from
14                                               No. 02-1961

cell when his cellmate set fire to cell causing the cellmate’s
death and plaintiff’s severe burns). Thus, it was Riccardo’s
burden to show that Lt. Rausch actually knew that there
was a substantial risk that Garcia would harm Riccardo. 

Rausch would be shielded from liability if no
objectively serious risk existed, he was unaware of the
impending risk, 

, or he took reason-
able steps to abate it, whether successful or not, 

.
  Admittedly, there is evidence in the record to support a
finding that Garcia did not objectively pose a substantial
threat to Riccardo—namely, the fact that Garcia was also
placed in segregation for “enemy protection,” allegedly from
the Latin Kings, and that Garcia had no history of sexual
assault. However, that is not the standard by which this
case should be reviewed. The standard is whether there
exists a legally sufficient evidentiary basis for a reasonable
jury to find in favor of Riccardo. 

.
  A jury could have reasonably believed that Lt. Rausch
was deliberately indifferent to the substantial risk of harm
to Riccardo. It is undisputed that Garcia was a member of
the Latin Kings. In their first interaction, Riccardo pri-
vately pulled Lt. Rausch aside and expressed his fear of
being celled with Garcia. Thus, Riccardo has presented
sufficient evidence to support the finding that Lt. Rausch
was made aware of the potential harm. See 

. The jury could have further found that Lt.
Rausch’s decision to question Riccardo in front of Garcia
was not a reasonable way to abate the potential danger to
Riccardo. Moreover, Lt. Rausch admitted that “[i]f
[Riccardo] would have told me he feared for his life, if he
refused housing or thought there was a threat to his safe-
ty[,] he would not have been placed—they would not have
been placed together.” Tr. III at 73. Thus, a jury could have
determined that Lt. Rausch’s admission, coupled with his
prior statements to Riccardo on May 28 that Riccardo could
No. 02-1961                                                    15

not turn down a housing assignment in segregation, and
that Riccardo could not be moved to another cell due to a
lack of space, amounted to Lt. Rausch “deliberately”
avoiding learning that Riccardo was in danger.3 Such an
analysis avoids the use of ex post occurrences, such as the
fact that Garcia did in fact assault Riccardo, to sustain a
finding of deliberate indifference. Moreover, the fact that
Lt. Rausch is able to point to evidence in the record to sup-
port his position does not mandate reversal of the jury’s
verdict. Our sole duty as an appellate court is to analyze
whether the record supports the jury’s determination. It is
not our function to reweigh the evidence. 

.
  I am further troubled by the majority’s reliance on
Riccardo’s second statement to Lt. Rausch (made in front of
Garcia) to sustain overturning the jury’s verdict. As it
stands, the deliberate indifference inquiry is an inherently
factual determination, 

, which re-
quires an “inquiry into a prison official’s state of mind,” 

Riccardo was actually housed in the receiving unit
as opposed to the segregation unit during the assault. The jury
heard testimony that the receiving unit is only used to house
inmates when the segregation unit is full. Tr. I at 24. Thus, Lt.
Rausch’s statement to Riccardo that there was no place else to
house him carried even greater weight. The jury also heard tes-
timony that it would have required more work for Lt. Rausch to
move Riccardo from a cell in receiving to a cell in segregation due
to the time of the alleged refusal and the occupancy of receiving
and segregation, Tr. III at 75-77; further supporting Riccardo’s
belief that any additional complaints about his cell assignment
would have been futile. Finally, the jury was told a prisoner may
be moved from one cell to another at any time. Tr. I at 25. There-
fore, the jury had ample evidence to support its finding that Lt.
Rausch’s actions rose to the level of deliberate indifference.
16                                                    No. 02-1961

at 837.4 Thus, whether this second statement is used to
support the assertion that there was no “objective” risk to
Riccardo or that Lt. Rausch was stripped of his “subjective”
knowledge of the harm, it is clear that Lt. Rausch’s credibil-
ity and sincerity are integral components to the usefulness
of this interaction. In essence, the majority accepts Lt.
Rausch’s assertion that his second discussion with Riccardo
in front of Garcia was a sincere investigation of the poten-
tial risk to Riccardo. However, the jury found otherwise.
Further, when asked to review the defendant’s Rule 50
motion, the district court aptly stated,
     [T]here is ample evidence from which to conclude
     that Rausch’s attempt to ascertain the seriousness
     of the threat was mere pretense, and that because
     he did not want to go to the extra effort to find dif-
     ferent accommodations for Garcia, he recklessly
     disregarded what he knew to be a dangerous situ-
     ation. That decision to essentially disregard the
     threat is where liability lies. A jury could have rea-
     sonably inferred that Rausch crossed the line from


4
  The Supreme Court’s discussion only further highlights the
propriety of allowing a jury to make this determination:
     When instructing juries in deliberate indifference cases
     with such issues of proof, courts should be careful to
     ensure that the requirement of subjective culpability is
     not lost. It is not enough to merely find that a reasonable
     person would have known, or that the defendant should
     have known, and juries should be instructed accordingly.

accord Lewis v. Richards, 

, 556 (7th Cir.
1997) (Flaum, C.J., concurring) (“In view of the Supreme Court,
the safeguard against jurors whose outrage at prison violence
might lead them to sanction officials in the absence of an Eighth
Amendment violation is not a relaxed summary judgment stand-
ard, but jury instructions that properly convey the applicable law.
Lower federal courts, in my view, should exhibit a similar faith in
the willingness of juries to follow the law.”).
No. 02-1961                                                       17

    gross negligence to deliberate indifference based on the
    ludicrousness of “asking” each inmate if he had a
    problem with the other. Credibility had to have been
    the key to the jury’s analysis, thus the Court cannot
    interject its own credibility determinations; and if it
    could, having observed both parties’ testimony, it may
    well have reached the same conclusion as the
    jury. [. . .]
    [A] prison official will only be freed from liability if he
    responded reasonably to the risk. As mentioned above,
    Rausch’s method of questioning could be perceived as
    deliberately forcing plaintiff to make a Hobson’s choice.
Riccardo v. Rausch, No. 99-CV-372-CJP, at 15 (S.D. Ill. Mar. 7,
2002) (order denying F.R.C.P. Rule 50(b) motion) (citations
omitted) (emphasis in original). By taking Lt. Rausch at his
word, the majority’s decision has the effect of immunizing
prison officials from liability based on potentially unreasonable
or contrived actions, and sanctions Lt. Rausch’s admittedly
unreasonable behavior.
  In an attempt to break the causal link between Lt. Rausch’s
actions and the harm to Riccardo, the majority asserts that “the
risk that Riccardo professed to fear (a ‘hit’) did not come to
pass.” Majority opinion at 7. The inquiry, however, is not
whether “a hit” was actually put out on Riccardo as that would
constitute the sort of impermissible ex post determination
eschewed by the majority. Rather, the focus is solely on
whether Rausch was made aware that a substantial risk of
some type of danger existed prior to the actual event. See 

n.33. Under the majority’s analysis are we to
presume that Riccardo’s pleas for protection would only guard
against murder or physical beating? For the purposes of an
Eighth Amendment inquiry, in the prison context, I find no real
distinction between “a hit” and a sexual assault.
  The majority also frees Lt. Rausch of liability based on
the assertion that Lt. Rausch was under no duty to foresee
18                                                  No. 02-1961

that Riccardo would not complain to other prison officials
between May 28, the date of Lt. Rausch and Riccardo’s
interaction, and May 30, when the assault actually took
place. The record reveals, however, that Garcia closely
watched Riccardo’s actions impeding Riccardo’s ability to
have a private conversation with prison guards outside of
Garcia’s presence. Tr. I at 76-82; Tr. II at 42-43. Further,
when Riccardo attempted to alert prison officials, Garcia
responded with escalating violence. Tr. II at 46-47. In light
of Riccardo’s reasonable belief that he could not refuse his
housing assignment and that there was no other available
cell, see note 

, Riccardo did not realistically have
the ability to complain to other guards without alerting
Garcia and incurring his wrath.
  The majority’s decision to question the adequacy of
Riccardo’s pleas for protection by requiring evidence con-
cerning the overall number of sexual assaults at Centralia
prison is also curious. See 

(Flaum,
C.J., concurring) (“[T]he majority’s emphasis upon the
adequacy of Lewis’s pleas for protection strikes me as
inappropriate.”) The prison recognizes that “some prisoners
are manipulative and cry ‘wolf’,” majority opinion at 5, and
has created a procedure to deal with this recurring possibil-
ity. A prisoner’s request for a cell transfer is always hon-
ored if the prisoner alleges a fear for his personal safety, Tr.
I at 44, but the prison deals with potential frivolity by
treating every request as a potential disciplinary violation.
Id.5 Thus, the prison has created a procedure whereby a
prisoner is moved first, and questions concerning the
sincerity of the request are asked later. In addition, the
inquiry under the Eighth Amendment is an individualized
one, i.e., Riccardo was required to prove, based on the


5
  Major Lawrence Jefferson was clear that “if [a prisoner is] just
refusing housing just to refuse housing with no reason, then we’ll
move him for that, but he’ll get a ticket for that.” 

                                              19

individual facts of his case, that he was subjected to an
objectively serious harm and that Lt. Rausch was “aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed].” 

.
  Finally, though unpursued by the majority, defendant
argues that should a constitutional violation be found, he is
nevertheless entitled to qualified immunity. According to
Rausch, previous case law must show that “no reasonable
prison official would have believed it was constitutional
either to cell an inmate with someone who gave conflicting
answers when asked (in the other inmate’s presence) if he
had a problem with that inmate, or to rely on a policy
requiring review of all placement decisions for suitability
within hours.” Appellant’s Brief at 33. However, the
Supreme Court in Hope v. Pelzer, expressly rejected the
notion that in order for a right to be “clearly established”
previous case law must contain facts which are “materially
similar” to the facts contained in the underlying action. 

, 739 (2002); see also Burgess v. Lowery, 

, 944-45 (7th Cir. 2000). Rather, the Court focused on
whether the prior case law would place officers on notice
that their conduct is unlawful. 

clear that Farmer
put prison guards on notice that they have a duty, under
the Eighth Amendment, to protect inmates from being
gratuitously beaten or raped by other inmates. See 

see also 

(rejecting qualified
immunity defense in light of Farmer decision which further
elucidated “deliberate indifference” standard).
  In light of the aforementioned, I must agree with the trial
court that a reasonable jury had ample evidence to sustain
this verdict and thus I respectfully dissent.
20                                                 No. 02-1961

  Before FLAUM, Chief Judge, and POSNER, EASTERBROOK,
RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS,
and WILLIAMS, Circuit Judges.†
  Plaintiff-appellee filed a petition for rehearing and
rehearing en banc on March 12, 2004. In response to this
petition, the panel has amended its opinion; the amend-
ments are reflected in the immediately preceding revised
opinion. A majority of the judges on the panel voted to deny
rehearing. A judge called for a vote on the petition for
rehearing en banc, but a majority of the active judges did
not favor rehearing en banc. Accordingly, the petition is
denied.




  RIPPLE, Circuit Judge, with whom ROVNER, DIANE P.
WOOD and WILLIAMS, Circuit Judges, join, dissenting from
the denial of rehearing en banc. Today, the court allows to
stand the decision of a panel majority that imposes on
prison inmates a new and impossibly high standard of proof
for establishing deliberate indifference in prison condition
cases. The panel majority strongly suggests that, in order
to show deliberate indifference, a prisoner must not only
identify with particularity the harm he fears but also
bolster his own account with a special showing containing
material such as statistical evidence of a “strong correlation
between prisoners’ professions and actual violence.”
Riccardo v. Rausch, slip op. at 9. Neither of these require-


†
  Circuit Judge Sykes did not participate in the consideration or
decision of this case.
No. 02-1961                                                  21

ments find support in circuit or Supreme Court precedent.
Consequently, the panel majority’s imposition of these
requirements not only does violence to our Eighth Amend-
ment jurisprudence, but it also effectively amends, without
any legislative mandate, the standard for judgment as a
matter of law under Federal Rule of Civil Procedure 50 for
cases brought by prisoners.


                             1.
  Mr. Riccardo told Lt. Rausch that the Latin Kings had put
out a “hit” on him and that placement in a cell with Garcia,
a known Latin King, would endanger his life. Two days
later, Mr. Riccardo was forced to perform sexual acts with
Garcia. The panel majority nevertheless concludes that this
evidence is not sufficient to establish that Lt. Rausch
should have appreciated a serious risk to Mr. Riccardo
because the “risk from which Riccardo sought protection
was not realized.” 

In short, in the panel major-
ity’s view, because Mr. Riccardo was raped, but not killed,
Lt. Rausch cannot be held liable for his failure to respond
to Mr. Riccardo’s fears.
  The Supreme Court in Farmer v. Brennan, 

(1994), eschewed this sort of distinction. The Court made
clear that a prison official cannot escape
    liability for deliberate indifference by showing that,
    while he was aware of an obvious, substantial risk
    to inmate safety, he did not know that the com-
    plainant was especially likely to be assaulted by the
    specific prisoner who eventually committed the
    assault. The question under the Eighth Amendment
    is whether prison officials, acting with deliberate
    indifference, exposed a prisoner to a sufficiently
    substantial “risk of serious damage to his future
    health,” Helling [v. McKinney, 

, 35
22                                                No. 02-1961

     (1993),] and it does not matter whether the risk
     comes from a single source or multiple sources, any
     more than it matters whether a prisoner faces an
     excessive risk of attack for reasons personal to him
     or because all prisoners in his situation face such a
     risk.

(emphasis added). Just as Mr. Riccardo did not
need to identify the member of the Latin Kings who would
mete out the retaliatory action that he feared, he did not
need to identify the specific sort of bodily harm that would
be inflicted upon him. Indeed, our case law makes crystal
clear that such precision with respect to identifying risks is
not required:
     While there must be some link between the risk of
     which the official was aware and the harm that
     actually occurred—as it would be unfair to hold offi-
     cials liable for risks they could not have anticipated
     simply because they ignored other unrelated
     risks—prison officials need not be specifically aware
     of the precise risk that unfolds.
Haley v. Gross, 

, 643 n.33 (7th Cir. 1996).
Mr. Riccardo feared reprisal by the Latin Kings. Garcia, a
member of that gang, committed an act of physical violence
upon Mr. Riccardo. The fact that Mr. Riccardo did not suffer
a worse fate does not negate the seriousness or the validity
of the threat to Mr. Riccardo that was communicated to Lt.
Rausch.


                              2.
 The panel majority further opines that Mr. Riccardo
might have overcome the infirmity in his case by showing
     that there is a strong correlation between prisoners’
     professions of fear and actual violence. How many
     murders (or homosexual assaults) occur in Central-
No. 02-1961                                               23

    ia (or the Illinois prison system) per hundred
    inmate-years of custody? How many violent events
    were preceded by requests for protection? How
    many requests for protection were dishonored, yet
    nothing untoward happened? Data along these lines
    would have enabled a jury (and the court) to evalu-
    ate actual risks. . . .
Riccardo, slip op. at 9. Neither this court, other courts of
appeals, nor the Supreme Court ever has required a show-
ing that expressed fears and violence were related in some
statistically significant way. It always has been sufficient
that the prisoner articulated his fear, that the prison
official believed the inmate, but that the official failed to
take reasonable actions to protect the prisoner from harm.
We often have stated that
    [i]f “the circumstances suggest that the defendant-
    official being sued had been exposed to information
    concerning the risk and thus ‘must have known’
    about it, then such evidence could be sufficient to
    permit a trier of fact to find that the defendant-
    official had actual knowledge of the risk.”
Sanville v. McCaughtry, 

, 737 (7th Cir. 2001)
(quoting 

-43; emphasis added). The
question of whether the prison official had the “requisite
knowledge is a question of fact” reserved for the jury. 

sort of statistical evidence suggested by the
panel majority in order to establish the existence of such a
risk imposes on inmates a practical burden that is im-
possible for prisoners to meet. Prisoners certainly should
not be relieved of meeting their burden of proof, but, like
other litigants, they ought to be permitted to come forward
with any evidence, direct or circumstantial, that is proba-
tive of the knowledge of prison officials concerning threats
reported to them. The judicial inquiry ought not be whether
there was statistical evidence from which a jury could
conclude that the threat was “real” or should be taken
seriously, but whether the record contains any evidence
24                                                No. 02-1961

from which the jury reasonably could conclude that the
prison official knew that the prisoner was subject to a risk
of serious harm. Moreover, there indeed may be times and
circumstances when the representation of the prisoner will
be a sufficient basis to require action on the part of the
prison official. I see no reason for a categorical rule that,
under no circumstances, can such a representation be suf-
ficient.
  There is no question that Mr. Riccardo articulated to Lt.
Rausch his fear of physical violence if celled with a member
of the Latin Kings. In violation of Centralia’s own pol-
icy—one presumably founded on a recognized correlation
between complaints and violence—Lt. Rausch did not move
Mr. Riccardo to another cell; instead, Lt. Rausch forced Mr.
Riccardo to articulate any concerns in the presence of the
very source of Mr. Riccardo’s fears, Garcia. As the district
court determined in rejecting the defendant’s Rule 50
motion, there was
     ample evidence from which to conclude that
     Rausch’s attempt to ascertain the seriousness of the
     threat was a mere pretense, and that because he
     did not want to go to the extra effort to find dif-
     ferent accommodations for Garcia, he recklessly
     disregarded what he knew to be a dangerous situ-
     ation. That decision to essentially disregard the
     threat is where liability lies. A jury could have rea-
     sonably inferred that Rausch crossed the line from
     gross negligence to deliberate indifference based on
     the ludicrousness of “asking” each inmate if he
     had a problem with the other. Credibility had to
     have been the key to the jury’s analysis, this Court
     cannot interject its own credibility determinations;
     and if it could, having observed both parties’ tes-
     timony, it may very well have reached the same
     conclusion as the jury.
R.64 at 15-16.
No. 02-1961                                                 25

   The panel majority makes clear its disagreement with the
jury’s view of the evidence. The evidence in favor of Mr.
Riccardo may not be overwhelming, but it is certainly not
legally insufficient. When the evidence is viewed in the
light most favorable to Mr. Riccardo, as it must be, a jury
could reasonably conclude that Lt. Rausch knew of a serious
risk of harm to Mr. Riccardo but failed to take reasonable
steps to prevent it. The panel majority may have come to a
different conclusion if it had sat as the trier of fact, but its
disagreement in that respect is certainly not an appropriate
occasion for revising Eighth Amendment and Rule 50
standards.
  The panel majority opinion not only deprives Mr. Riccardo
of his right to a jury trial, it also takes a very significant
step in depriving individuals incarcerated in this circuit of
a realistic opportunity to meet their burden of proof in these
cases. I therefore respectfully dissent from the denial of
rehearing en banc.




  WILLIAMS, Circuit Judge, with whom RIPPLE, ROVNER,
and DIANE P. WOOD, Circuit Judges, join in dissenting from
the denial of rehearing en banc. The majority’s opinion has
incorrectly resolved and unjustifiably reframed both the
Eighth Amendment standard for deliberate indifference as
well as the Rule 50 standard to set aside a jury verdict.
  With regard to the Eighth Amendment inquiry, the
majority opinion highlights a major gap in the case law.
Particularly, what is required to prove the objective prong
of the deliberate indifference standard? The Court in
26                                                No. 02-1961

Farmer v. Brennan, 

, 834 n.3 (1994) did not
address this issue. On page 9, the majority asks a plethora
of questions which go to this issue, i.e., the overall threat of
violence at the prison. Perhaps the dearth of case law on
this point is due in part to the general knowledge that
prisons are dangerous places where rape and assault occur
frequently and therefore threats, such as the one in this
case, must be handled with more caution than exhibited by
Rausch. See Prison Rape Elimination Act of 2003,42 U.S.C.
§ 15601-02 (2004) (“The purpose of this chapter is to: (1)
establish a zero-tolerance standard for the incidence of
prison rape in prisons in the United States. (6) increase the
accountability of prison officials who fail to detect, prevent,
reduce, and punish prison rape.”) (“Congress makes the
following findings: (2) Insufficient research has been
conducted and insufficient data reported on the extent of
prison rape. . . . Many inmates have suffered repeated as-
saults. (13) The high incidence of sexual assault within
prisons involves actual and potential violations of the
United States Constitution.”). Centralia Prison’s policy, to
move prisoners first and discipline them later for baseless
requests, is further proof of the objective danger. Again,
evidence of the prison’s policy does not hold Rausch liable
for mere negligence; rather, it reflects the understood en-
vironment in the prison, as accepted by prison officials,
guards, and administrators, that threats of violence have a
high probability of leading to attacks. Riccardo, therefore,
proved that the asserted danger was objectively serious.
  Under the more specific inquiry of Farmer’s subjective
prong, the prison official must “deliberately disregard” a
potential harm by being “aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and [also] draw[ing] the inference.” 

This seems to me to create two questions: (1) what facts
were presented to Rausch, and (2) did he accept them as
true or did his actions evince his intent to purposefully
No. 02-1961                                                 27

ignore those apparent facts? Once again, the inquiry is a
particularized one, focused on the officer’s knowledge.
Without repeating what I have already set out in my dis-
sent, the jury was presented with evidence that Riccardo
told Rausch he did not want to be celled with Garcia be-
cause he was in fear of an attack. “A prisoner normally
proves actual knowledge of impending harm by showing
that he complained to prison officials about a specific threat
to his safety.” McGill v. Duckworth, 

, 349 (7th
Cir. 1991). Therefore, contrary to the majority’s assertion,
the first part of this inquiry is satisfied.
  Accepting the majority’s point that Riccardo’s mere “say-
so” is not enough to establish Eighth Amendment liability,
there were plenty of “objective indicators” to support the
jury’s finding that Rausch’s actions amounted to deliberate
indifference. The jury heard evidence that Rausch put
the two men in front of each other to determine whether a
problem existed. It is this act, which the majority uses to
exonerate Rausch from liability. However, it is this very act
which evinces Rausch’s deliberate indifference as found by
the jury and reiterated by the district court. What is more,
this court has already defined such action as unacceptable
under the Eighth Amendment. 

(reasoning that
the scienter requirement is satisfied when a prison guard,
“[s]uspect[s] something is true but shut[s] [his] eyes for fear
of what [he] will learn” or “[goes] out of [his] way to avoid
acquiring unwelcomed knowledge”). The jury found that no
reasonable guard would think that asking Riccardo to admit
fear of Garcia with Garcia present, would illicit an honest
response. Again, it is this act that crosses the line. Recog-
nizing that these specific actions were inconsistent with the
Eighth Amendment would not create per se liability for
prison officials. Therefore, I respectfully dissent from the
court’s decision not to rehear this case en banc.
28                                        No. 02-1961

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—7-12-04