Kenyatta Cursey v. Zachary Schroeder

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2023*
Decided July 17, 2023
Before
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-3188
KENYATTA CURSEY,
Plaintiff-Appellant,
v.
ZACHARY SCHROEDER,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 21-cv-0906-bhl
Brett H. Ludwig,
Judge.
O R D E R
Kenyatta Cursey, a Wisconsin prisoner, appeals from the district court’s grant of
summary judgment against him on his two claims against Zachary Schroeder, a prison
staff member. First, relying on the Eighth Amendment, Cursey alleged that Schroeder
was deliberately indifferent when he failed to protect Cursey from another prisoner’s
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-3188 Page 2
sexual harassment; second, invoking the Equal Protection Clause of the Fourteenth
Amendment, Cursey claimed that Schroeder disregarded his complaint about
harassment because he is Black and heterosexual. With regard to the Eighth
Amendment claim, we conclude that a reasonable jury could find that Schroeder knew
of a substantial risk of harm to Cursey but did nothing meaningful to avert that risk,
and that a jury could also find that the risk materialized. On that ground (and that
ground only), we remand for further proceedings on the Eighth-Amendment theory.
Cursey’s equal-protection claim is a different matter. We conclude that he has
not adduced sufficient evidence to permit a trier of fact to find that Schroeder
discredited Cursey’s harassment complaint based on Cursey’s race or sexual
orientation, and so we affirm the judgment dismissing that claim.
Because we are reviewing the entry of summary judgment, we view the evidence
in the light that most favors Cursey. Henry v. Hulett, 969 F.3d 769, 774 (7th Cir. 2020) (en
banc). In August 2020, Cursey, who was housed at Redgranite Correctional Institution
in Redgranite, Wisconsin, was assigned a new cellmate, identified only as J.E. In time,
Cursey came to fear J.E. Within two months of the assignment, Cursey asked to switch
cellmates. A few days later, before the prison could act on that request, J.E. told prison
staff that he was not feeling well; as a result, he and Cursey were moved to a quarantine
unit under the prison’s then-applicable COVID-19 policies. Cursey’s unit manager told
him that she would review his request for a new cellmate after he returned from
quarantine.
While housed in the quarantine unit, the situation between Cursey and J.E.
deteriorated, leading Cursey to contact Schroeder, who was that unit’s manager.
Schroeder was also one of the staff members responsible for receiving complaints that
prisoners file under the Prison Rape Elimination Act (PREA). Under Wisconsin’s
administration of PREA, prisoners may file complaints if they believe they have been
sexually harassed, defined as “repeated and unwelcome sexual advances, requests for
sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive
nature[.]” Under the prison’s rules, Schroeder conducts screening interviews with
PREA filers and prepares reports and recommendations. If Schroeder determines that a
possible PREA violation has occurred, he forwards a report to another staff member
who decides whether to investigate. If Schroeder concludes that no violation has
occurred, the rules require him to mark the report as “non-PREA” and send it to
superiors for approval.
Soon after Cursey moved to the quarantine unit, he voiced his concerns about
living with J.E. to Schroeder. Cursey told Schroeder that he wanted to file a PREA

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complaint because he believed that J.E. was touching him as he slept. (He based this
allegation on the fact that he would awaken to find J.E. standing over him). He also told
Schroeder that J.E. would suggestively suck on a spoon and gaze at him as he ate,
leaving Cursey to fear more unwanted contact. Schroeder called the manager of
Cursey’s previous unit (before his quarantine) and asked if she had seen any conflict
between the two cellmates. The manager told Schroeder that, “to [her] knowledge, there
was no reason they could not be celled together.” Schroeder did nothing else. Deciding
that the two prisoners could remain celled together, he ordered Cursey to remain in his
quarantine cell with J.E. When Cursey refused, Schroeder issued him a disciplinary
report and placed him in temporary lockup. Schroeder never prepared the required
“non-PREA” report in response to Cursey’s complaints.
This suit came next. Cursey alleged that Schroeder violated the Eighth
Amendment by his deliberate indifference to J.E.’s sexual harassment. Cursey also
alleged that Schroeder violated the Equal Protection Clause of the Fourteenth
Amendment by discounting his PREA complaint because he was not white or gay. He
pointed to four white or gay prisoners who, he alleged, had received more favorable
PREA treatment from Schroeder. Schroeder moved for summary judgment and
submitted a declaration from Cursey’s former unit manager, who had investigated the
records of the four prisoners to whom Cursey had pointed to support his equal-
protection claim. Three of them had no record of filing a PREA complaint. The fourth
prisoner (who Cursey attests was white) did file a PREA complaint, but Schroeder
determined that it did not state a PREA violation, and so he prepared a “non-PREA”
report for approval by superiors.
The district court granted Schroeder’s motion for summary judgment. It first
questioned whether Cursey had faced from J.E. a serious risk of harm under the Eighth
Amendment. But it ruled that in any case no reasonable jury could find that Schroeder
disregarded any such risk to Cursey because Schroeder had followed up on Cursey’s
complaint by contacting his previous unit manager. The court also rejected Cursey’s
equal-protection claim, because Cursey had not presented evidence that his race or
sexual orientation motivated Schroeder’s response to his complaint about J.E.
On appeal, Cursey first argues that the district court erred by entering summary
judgment for Schroeder on his Eighth Amendment claim. We agree that Cursey alleged
just enough to move along with these allegations. To overcome summary judgment,
Cursey needed to furnish evidence from which a jury could reasonably conclude that
Schroeder knew of and deliberately disregarded a substantial risk of serious harm to
Cursey’s safety. Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (reversing

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decision of district judge who did not let a jury decide whether to credit prisoner’s
testimony that the prisoner told defendants that other inmates planned to attack him).
In failure-to-protect cases, a prisoner may normally prove that prison officers had actual
knowledge of impending harm by showing that the prisoner credibly reported a
specific threat to his safety. Id. (citation omitted); Horshaw v. Casper, 910 F.3d 1027, 1029
(7th Cir. 2018) (reversing grant of summary judgment to prison guards where a jury
could find that the prisoner credibly notified guard of substantial danger and took no
action).
Cursey has presented sufficient evidence to survive summary judgment on his
failure-to-protect claim. First, a jury could find that he experienced a severe risk of
serious harm from J.E. and that the risk materialized. In particular, a factfinder could
conclude that, because Cursey caught J.E. hovering over him as he tried to sleep, J.E.
had been touching him while he was unconscious. A jury could also find that J.E.
severely distressed Cursey and caused him to fear more unwanted sexual contact when
J.E. made suggestive sucking sounds and gazed at Cursey while eating. Second, the
record allows a jury to conclude that Cursey told Schroeder about this unwanted
contact and his fears of more to come. Third, a reasonable jury could decide that
Schroeder considered these concerns credible, but did nothing meaningful to
investigate or abate them, despite his obligations under the Eighth Amendment to do
so. See id. Other than briefly consulting with Cursey’s previous unit manager, Schroeder
did nothing. And that brief consultation gave Schroeder next to nothing on which to
rely. The manager responded only that “to [her] knowledge” nothing would prevent
the two prisoners from living together. But a jury could find that this statement did not
reasonably assure Schroeder that Cursey faced no substantial risk of harm. The
manager did not say, and Schroeder did not ask, if she regularly (or ever) observed the
two prisoners in her two months as their manager, that she had investigated their co-
habitation, or that she had spoken to others who had.
This is enough to permit a reasonable jury to find that Schroeder deliberately
disregarded the risk of sexual-harassment harm to Cursey; we therefore vacate the
entry of summary judgment on that claim. We caution, however, that Cursey faces
additional hurdles. On remand, the district court will need to assess the applicability of
42 U.S.C. § 1997e(e) (not cited by the defendants in their brief to this court) to Cursey’s
case. It provides that “[n]o Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury or the commission of a sexual act
(as defined in section 2246 of Title 18).” As of now, we have Cursey’s inference from
J.E.’s actions that Cursey was the victim of unwanted touching while Cursey was

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sleeping and thus unconscious. If J.E. touched him sexually under those circumstances,
he might have a case, either on a physical harm theory analogous to common-law
battery, or as an unwanted “sexual act” as defined in 18 U.S.C. § 2246(2)(C) (“sexual
act” occurs if there is even a slight penetration “of the anal or genital opening of another
by a hand or finger or by any object … .”). We express no opinion on the proper
resolution of that inquiry. The court should also revisit Schroeder’s invocation of
qualified immunity on this point.
We affirm the district court’s judgment with regard to the rest of the case. Cursey
contends that Schroeder was not entitled to summary judgment on his equal-protection
claim to the effect that Schroeder responds more favorably to PREA complaints from
white or gay prisoners. Cursey maintains that Schroeder decided not to protect him
from J.E., and declined to prepare a “non-PREA report,” because Cursey is Black and
heterosexual. To overcome summary judgment, Cursey needed to furnish evidence that
could persuade a reasonable jury that Schroeder handled Cursey’s PREA complaint
differently for a forbidden, discriminatory reason. Village of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Alston v. City of Madison, 853 F.3d 901, 906–07
(7th Cir. 2017).
As the district court recognized, he has failed to do so. The record contains
evidence of only two prisoners who filed PREA complaints with Schroeder: Cursey and
a white prisoner. In both cases, Schroeder did not regard their complaints of sexual
harassment as worthy of further protective action. In other words, there was no
forbidden discrimination.
Cursey replies that, for the white prisoner but not for Cursey, Schroeder wrote a
“non-PREA” report and submitted it to his superiors; this report, Cursey insists, shows
more favorable treatment based on race. The problem for Cursey is that he provides no
information about the nature of that prisoner’s allegations of harm or the details that he
provided to Schroeder. Without that information, a reasonable jury could not conclude
that this other prisoner was identical “in all relevant respects,” let alone that any
differential treatment was based on race. See McDonald v. Village of Winnetka, 371 F.3d
992, 1002 (7th Cir. 2004). Further, Cursey pointed to no other evidence that his race or
sexual orientation motivated Schroeder’s decision not to file a “non-PREA” report.
Thus, only speculation could tie Schroeder’s decision not to prepare a “non-PREA”
report to Cursey’s race or sexual orientation. And, as the district court explained,
“inferences supported by only speculation or conjecture will not defeat a summary
judgment motion.” Lavite v. Dunstan, 932 F.3d 1020, 1029 (7th Cir. 2019).

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Therefore, we VACATE the judgment with regard to Cursey’s deliberate-
indifference claim against Schroeder and REMAND for further proceedings consistent
with this order. We AFFIRM the judgment in all other respects.

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