Morritz J. Weiss v. Brad Cooley

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-2880
Morritz J. Weiss,
Plaintiff-Appellant,
v.
Brad Cooley,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP97-0471-C-H/G--David F. Hamilton, Judge.
Argued February 15, 2000--Decided September 22, 2000
Before Posner, Easterbrook, and Diane P. Wood, Circuit
Judges.
Diane P. Wood, Circuit Judge. Morritz Weiss was
the principal suspect in a highly charged and
well publicized case involving the rape of a 15-
year-old African-American girl near Indianapolis.
The present case concerns the treatment he
received from three officers--Brad Cooley,
Sheriff Terry Weddle, and Jail Commander Guy
Fogelman--while he was in custody at the Morgan
County, Indiana, jail before his trial. In short,
he claims that the jail officials put him with
other inmates who the officials knew would attack
him, and who in fact did attack him. Weiss filed
suit under 42 U.S.C. sec. 1983, claiming that the
officers in so doing violated his constitutional
rights. The district court dismissed his claims
against Weddle and Fogelman under 28 U.S.C. sec.
1915A, on the ground that the complaint failed to
allege facts that would amount to "deliberate
indifference." It then granted summary judgment
in Cooley’s favor. We conclude that the district
court properly dismissed the claims against
Weddle and Fogelman, though not because of any
lack of facts per se, but that there were
genuinely disputed facts in the case against
Cooley. We therefore affirm in part and reverse
and remand in part for further proceedings.
I

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The account of the facts that follows takes
them, of course, in the light most favorable to
Weiss. The dismissals with respect to Weddle and
Fogelman were appropriate only if the complaint
failed to give the defendants adequate notice of
the claim, or if there was no set of facts that
could be proven, consistently with Weiss’s
allegations, that would support relief. See,
e.g., Walker v. National Recovery, Inc., 200 F.3d
500, 503 (7th Cir. 1999), citing Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984). This
standard, derived from Rule 12(b)(6), also
applies to the dismissal of claims under sec.
1915A. See Sanders v. Sheahan, 198 F.3d 626 (7th
Cir. 1999); see also DeWalt v. Carter, No. 98-
2415, 2000 WL 1137385 (7th Cir. Aug. 11, 2000)
(applying same rule to dismissals under 28 U.S.C.
sec. 1915(e)(2)(B)(ii)). The problem here was not
notice; it was instead the sufficiency of Weiss’s
allegations. With respect to the summary judgment
in Cooley’s favor, we present the facts in the
summary judgment record in the light most
favorable to Weiss.
In early June 1995, Weiss (a white male) was
charged by Morgan County authorities with the
attempted murder, criminal confinement, and rape
with a deadly weapon of a young African-American
woman. He was not taken into custody immediately,
because he could not be found. Only after a
widely publicized manhunt did the police track
him down in Tennessee. He was captured there, and
on July 6, 1995, Detective Robert Betts of the
Morgan County Sheriff’s Department and another
detective brought him back to the Morgan County
Jail. During transport, the officers informed him
that there had been extensive publicity about the
case, that there was great public anger, and that
racial tensions had been heightened by it.
Detective Betts then commented that Weiss had "no
idea" what was waiting for him inside the Morgan
County Jail.
Weiss’s arrival at the jail was filmed by
television crews. The officer responsible for
booking him was Cooley, who was aware of the news
accounts both about the story and about Weiss’s
arrest in Tennessee. As booking proceeded,
officers and inmate "trusties" congregated around
the booking area to watch the spectacle. Cooley,
meanwhile, asked Weiss several questions: whether
(1) he had any enemies in the jail, (2) he needed
any special care, or (3) he had ever assaulted
anyone or was contemplating assaulting anyone.
Weiss answered "no" to each of these.
With booking complete, Cooley began escorting
Weiss toward C Block, which was used for holding
persons accused of committing serious felonies.

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As they walked through A and B Blocks, other
inmates (who had apparently learned who Weiss was
and what he was charged with doing) shouted out
a variety of threats and insults, including "we
know who you are and what you did." Cooley claims
now that the path through these cell blocks is
lined with one-way glass, which allows inmates
behind the glass to see that a person is moving,
but makes it difficult or maybe impossible to
identify the particular person. Weiss counters
that the glass is not so opaque; instead, if
inmates come close enough to it, they can
identify the person walking through the area.
Hearing the shouts, Weiss alleges that he then
asked Cooley to put him in isolation. Cooley
retorted "you have to go where I put you." Then,
as inmates from A and B Blocks continued to yell,
the following exchange occurred:
Weiss: You can’t put me in here or there’s going
to be problems.
Cooley: You have to face the music sometime.
The two then proceeded into C Block, which was
quiet but tense.
After dinner, a group of inmates went to
Weiss’s cell. One of them, Sid Bennett, said that
he already knew about Weiss’s case and then said
to Weiss "we are going to kick you’re a**."
Another, Douglas Estep, assaulted Weiss, causing
a cut that required sutures and fracturing his
left eye socket (although the fracture was not
discovered for nearly nine months). Weiss managed
to alert the guards, who came and took him back
to the receiving area. Sergeant Richard Allen
asked him what he had done to deserve placement
in C Block. When Weiss replied that he was new to
the jail and that Cooley had taken him directly
there, Allen commented "Cooley has been here long
enough--he should be smarter than that."
II
Weiss’s original complaint in the action named
Weddle, Fogelman, and Cooley in their individual
capacities. As required by 28 U.S.C. sec. 1915A,
the district court reviewed the complaint prior
to its being docketed. The court concluded that
Weiss had failed to plead facts in his claims
against Weddle and Fogelman that would have shown
they were "deliberately indifferent" to his
safety, as required by the Eighth Amendment
standards, as incorporated in the due process
clause for pretrial detention cases. See, e.g.,
Zarnes v. Rhodes, 64 F.3d 285, 289-90 (7th Cir.
1995). It therefore dismissed the claims against
those two defendants, and, perhaps because those

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claims were dismissed before the complaint was
even docketed or the defendants served, it
entered no "final judgment" relating to that part
of the case.
After that setback, Weiss moved on July 18,
1997, for appointment of counsel under 28 U.S.C.
sec. 1915. The court initially denied the motion
because Weiss had not yet sought private counsel.
Weiss then looked around, but he was unable to
persuade any lawyer to take his case. He returned
on October 8, 1997, with another motion for
appointment of counsel. This time, on February
26, 1998, the court denied the request on the
ground that a lawyer was not required given the
lack of complexity or merit to the case and
Weiss’s own ability to handle it.
On November 24, 1997, Cooley moved to strike
the affidavit of inmate Steven Sherwood; at the
same time, he moved for summary judgment.
Sherwood had attested that Morgan County Jail
officers knew that Estep would assault other
inmates, and, worse than that, that they used
Estep as a vehicle for abusing prisoners.
Sherwood also claimed that Cooley used inmates to
threaten him. In an order dated May 29, 1998,
Judge Hamilton struck a substantial part of the
Sherwood affidavit on the ground that it was not
supported by personal knowledge, and he granted
Cooley’s motion for summary judgment.
On June 10, 1998 (within the 10 business days
permitted by Rule 59), Weiss asked for relief
under Fed. R. Civ. P. 59 and 60. Along with his
motion, he proffered another affidavit that laid
out more facts supporting his claims. The
highlights included the following points:
The trusties were calling Weiss a "fucking
nigger lover" and "fucking psycho" before Cooley
told them to shut up.
Weiss furnished a more detailed description of
his explanation to Cooley about why he wanted to
be put in isolation.
Weiss gave more details of his trip through
Blocks A and B, with a number of additional
vulgar references like his first one.
Weiss claimed that he heard the inmates ask
Cooley to put Weiss in their cell blocks so that
they could "fuck him up."
The district court denied both requests on June
23, concluding that even if the facts in Weiss’s
second affidavit were really new, he had failed
to show how this new information created a
genuine issue of fact.

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Last, Weiss submitted a request to file an
amended complaint, which the court denied on July
7. The amended complaint adds an official
capacity claim against Weddle; it augments
Weiss’s allegations against Weddle and Fogelman,
emphasizing that they personally failed to
implement an adequate classification system for
new inmates; and it provides more detail about
the incidents during and after the booking
process. The court denied his request both
because it was out of order unless or until the
prior final judgment was re-opened, and because
it was legally insufficient in any event. Weiss
appealed.
III
A.
The first question Weiss raises concerns our
appellate jurisdiction; he is apparently worried
that his notice of appeal might not be adequate
to cover his claims against Weddle and Fogelman,
as well as those against Cooley. The notice
refers to the May 29, 1998, judgment, which
itself names only Cooley as a party.
Nevertheless, looking at the requirements for
notices of appeal set forth in Fed. R. App. P.
3(c), we are satisfied that Weiss’s notice was
enough to bring up all of his claims. First, Rule
3(c) requires only that the notice of appeal
specify the party taking the appeal, the judgment
or order from which the appeal is being taken,
and the court to which the appeal is taken.
Weiss’s notice does all that. In general, a
notice of appeal from a final judgment, like the
May 29, 1998 judgment here, is adequate to bring
up everything that preceded it. See Kunik v.
Racine County, Wis., 106 F.3d 168, 172-73 (7th
Cir. 1997). The district court went out of its
way to signal that the ruling dismissing Weddle
and Fogelman was not "final" (plainly true) or
certified for appeal in any way, with language in
the dismissal order that says "no partial
judgment shall issue at this time pursuant to
Fed. R. Civ. P. 54(b) as to the claims which are
dismissed." Weiss’s notice of appeal was properly
filed after the district court disposed of the
remaining claim against Cooley, and it was enough
to cover the entire case.
There is a separate problem arising from the
fact that Weddle and Fogelman were never formally
served in the action. They thus never became
parties, and as non-parties they have not filed
separate briefs on appeal. Cooley’s brief,
however, expressly addresses the question whether
the dismissals for Weddle and Fogelman were
proper. We cannot tell whether there was any
agreement between Cooley’s lawyer and Weddle and

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Fogelman that supported this presentation--
indeed, the disclosure statement in Cooley’s
brief indicates exactly the opposite, because it
affirms that the attorney represents only Cooley.
Ideally, in these situations, one might imagine
some form of notice of the final judgment and an
opportunity for a limited intervention by the
unserved putative defendants solely for the
purpose of defending on appeal the district
court’s decision to dismiss claims brought under
sec. 1915A against them. Even without such a
formal procedure, however, we are satisfied that
our de novo review of this point can proceed in
this case in light of the fact that their
position has been briefed with no apparent
objection from them.
B.
We explain first why we have concluded that
summary judgment in favor of Officer Cooley was
premature. In order to recover from officials in
a prison or a jail, a plaintiff must show both an
objective risk of danger and actual knowledge of
that risk on the part of the custodial staff. See
Henderson v. Sheahan, 196 F.3d 839, 844-45 & n.2
(7th Cir. 1999); Payne for Hicks v. Churchich,
161 F.3d 1030, 1041 (7th Cir. 1998). As we held
in Payne, "[a] detainee establishes a sec. 1983
claim by demonstrating that the defendants were
aware of a substantial risk of serious injury to
the detainee but nevertheless failed to take
appropriate steps to protect him from a known
danger." Id. For pretrial detainees, such a claim
arises under the Fourteenth Amendment’s due
process clause rather than the Eighth Amendment,
but there is little practical difference between
the two standards.
No one here doubts that Weiss faced an
objective risk of serious injury. The question is
whether he presented enough evidence that Cooley
was aware of that risk to create a genuine issue
of material fact. The district court thought not,
because Weiss never told Cooley that Estep or
anyone else in C Block presented a risk of harm,
and because Cooley had no advance knowledge that
Estep and Bennett were going to confront Weiss.
In our view, by focusing so tightly on the
specifics of the assault that occurred, the
district court did not appreciate the
significance of the evidence of Cooley’s state of
mind that Weiss presented. It is certainly true
that a deliberate indifference claim cannot be
predicated merely on knowledge of general risks
of violence in prison. See, e.g., James v.
Milwaukee County, 956 F.2d 696, 701 (7th Cir.
1992). But there is some distance between such a
generalized claim and advance knowledge of every

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detail of a future assault. Just because it is
possible to state a claim on the basis of a
guard’s knowledge that a particular inmate poses
a heightened risk of assault to the plaintiff,
see Billman v. Indiana Dept. of Corrections, 56
F.3d 785, 788 (7th Cir. 1995), does not mean that
this is the only way to state a claim. Sometimes
the heightened risk of which the guards were
aware comes about because of their knowledge of
the victim’s characteristics, not the
assailant’s. See, e.g., Langston v. Peters, 100
F.3d 1235, 1238-39 (7th Cir. 1996) (discussing
inmates likely to be targeted by gangs); Swofford
v. Mandrell, 969 F.2d 547, 549-50 (7th Cir. 1992)
(noting that inmate was arrested on suspicion of
sexual assault); Walsh v. Mellas, 837 F.2d 789,
793 (7th Cir. 1988) (referring to inmates who are
"member[s] of an identifiable group").
The latter group of cases more closely fit
Weiss’s claim, and from that standpoint he
introduced enough evidence to withstand summary
judgment. Cooley’s remark about facing the music
is as close to an admission of subjective
knowledge that Weiss faced a substantial risk of
serious harm as one is likely to see in these
cases. Although it was before the district court
as part of the summary judgment record, in
Weiss’s first affidavit, the court made no
mention of it. Moreover, even though Sergeant
Allen’s statement that "Cooley should be smarter
than that" might be interpreted in several ways,
taking the inferences favorably to Weiss it is
some evidence that Cooley knew what risks Weiss
faced as a sexual assault offender in C Block.
Furthermore, Weiss had evidence showing that the
inmate trusties observed not only his booking but
the media show that surrounded it, that they knew
what he was accused of, and that they had access
to the rest of the inmate population. Cooley was
the booking officer, and so even without Weiss’s
second affidavit (which the district court had
excluded), a trier of fact could infer that
Cooley was able to put two and two together and
come up with four.
Naturally, a trier of fact may interpret the
"face the music" statement differently and may
put a more innocuous face on Weiss’s other
evidence. But those choices must be resolved at
a trial, not on summary judgment.
C.
Our decision with respect to Weddle and
Fogelman depends heavily on the proper standards
for dismissing cases for failure to state a claim
(whether under Rule 12(b)(6) or, as here, under
sec. 1915A). Weiss explains on appeal that his
theory against these two defendants is that they
deliberately failed to implement a proper

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classification system, and as a result he was
exposed to Estep. In order to show deliberate
indifference on either of their parts, Weiss
would have to show that they failed to implement
a segregation policy and that they did so with
the motive of allowing or helping prisoners to
injure one another. See Walsh v. Mellas, supra;
see also City of Canton v. Harris, 489 U.S. 378,
389-90 (1989). Put a little more specifically,
Weiss would have to prove that Weddle and
Fogelman knew that the probability that certain
inmates would face extreme and unusual risks was
so high that their failure to classify inmates on
such a basis amounted to deliberate indifference
to the safety of the high-risk individuals.
The defendants’ (i.e. Cooley in his brief, on
behalf of Weddle and Fogelman) main response is
that Weiss’s complaint is inadequate. The
original complaint read as follows on this point:
There was no policy in adequately classifying
inmates, and if there was, it was not enforced.
Plaintiff asked about a grievance, but was
ignored. Widdle [sic] and Foglman [sic] are
responsible for this.
The question, however, is not whether this
excerpt alleged all the facts that Weiss would
need to prove in order to prevail on his claim--
or specifically, whether it contained a
sufficient allegation of knowledge. As we have
repeatedly noted, fact pleading is not required
in federal court. See, e.g., Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998); American
Nurses’ Ass’n v. State of Illinois, 783 F.2d 716,
727 (7th Cir. 1986); see also International
Marketing, Ltd. v. Archer-Daniels-Midland Co.,
192 F.3d 724, 733 (7th Cir. 1999). It is instead
whether this was enough, under the notice
pleading regime of the Federal Rules, to alert
Weddle and Fogelman to the claim Weiss (a pro se
plaintiff, after all) wanted to present against
them. See Hutchinson ex rel. Baker v. Spink, 126
F.3d 895, 900 (7th Cir. 1997).
Although Weiss was not permitted to file his
amended complaint, it is in the record on appeal
and we may look at it for the limited purpose of
seeing whether there might have been allegations
consistent with the original complaint that he
could have proven that would have permitted him
to recover--that is, allegations that would have
satisfied both the objective and the subjective
components of an Eighth Amendment claim. It does
not, however, allege any unconstitutional motive
on the part of Weddle or Fogelman. It says only
that circumstances in the community and the jail
were such that assaults on prisoners like Weiss
were "inevitable" and that this was enough to

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show deliberate indifference on their part. His
amended complaint also reveals that he is not
charging them with the failure to enact any
classification system at all; he claims instead
that the system they use is inadequate. Even
under the generous standards of notice pleading,
we conclude that this is not enough to sustain an
Eighth Amendment claim against Weddle and
Fogelman, and thus that the district court
properly dismissed the claims made against them.
D.
Our decision to remand the claim against Cooley
means that there is little that needs to be said
about Weiss’s remaining arguments on appeal, all
of which relate to various discretionary rulings
by the district court. He first challenges the
court’s decision not to give him counsel under
sec. 1915(d). We review that decision for abuse
of discretion. See Zarnes v. Rhodes, 64 F.3d 285,
288 (7th Cir. 1995). We see no abuse here.
Weiss’s initial complaint specifically referred
to both the Eighth and the Fourteenth Amendments,
and his motion in opposition to summary judgment
competently addressed the key points. It is true,
however, that counsel might have helped Weiss
sharpen his allegations. On remand, we leave it
to the district court’s sound discretion to
decide whether counsel may be desirable or if it
wishes to stay with its original decision.
Weiss also argues that the court abused its
discretion in denying the June 30 request for
leave to file an amended complaint. But Weiss has
no answer to the district court’s point that a
party cannot request leave to amend following a
final judgment unless that judgment has been
vacated. See Vicom, Inc. v. Harbridge Merchant
Services, Inc., 20 F.3d 771, 784 (7th Cir. 1994).
We also agree with the district judge that the
amended complaint, while it contained some
embellishments of the facts in the first one, was
not materially different. On remand, the
complaint will have served its purpose; it will
be up to the district court to decide whether to
permit an amended complaint or to move forward
with service, discovery, and trial preparation.
Last, Weiss claims that the court abused its
discretion in striking parts of the Sherwood
affidavit. We disagree. The parts of the
affidavit that were stricken all, in one way or
another, merely asserted various facts "on
information and belief." As the district court
correctly observed, this is not enough to satisfy
the personal knowledge requirement for
affidavits.
IV

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For the reasons stated, we AFFIRM the district
court’s judgment to the extent that it found that
Weiss failed to state a claim against Weddle and
Fogelman, and we REVERSE the decision granting
summary judgment for Cooley. The case is REMANDED
for further proceedings consistent with this
opinion.

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