Marvin Thomas v. Thomas J. Dart

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2458
MARVIN T HOMAS ,
Plaintiff-Appellant,
v.
T HOMAS J. D ART , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-04233 — Mary M. Rowland, Judge.
____________________
A RGUED FEBRUARY 10, 2022 — D ECIDED J ULY 12, 2022
____________________
Before MANION, KANNE∗, and JACKSON-A KIWUMI, Circuit
Judges.
MANION, Circuit Judge. While incarcerated in Cook County
Jail, Marvin Thomas was assaulted by another inmate. Seven-
teen months later, he filed suit under 42 U.S.C. § 1983 and
∗ Circuit Judge Kanne died on June 16, 2022, and did not participate
in the decision of this case, which is being resolved under 28 U.S.C. § 46(d)
by a quorum of the panel.

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2 No. 21-2458
other federal statutes against Sheriff Thomas J. Dart, Cook
County, and other Jail personnel, including corrections offic-
ers to whom he allegedly reported the inmate’s threat of vio-
lence. Ultimately, all of these claims were either dismissed or
resolved against Thomas on summary judgment.
This appeal is not about those claims. Years after litigation
began, Thomas sought to amend his complaint for a third
time to name as defendants intake clerks who screened him
when he entered the Jail. He alleged the clerks purposely
omitted from intake forms that he suffered from mental
health problems and that this omission led to his assault. The
district court denied the motion to amend, concluding it
would be improper to add the new defendants. Thomas chal-
lenges the denial of his motion to amend and asserts that the
district court’s ruling demonstrates its bias against him.
Because the amendment Thomas sought would have been
futile, and because no bias against Thomas can reasonably be
inferred from the district court’s adverse rulings, we affirm.
I. Background
In June 2015, Thomas was arrested and transported to the
Jail. Although released from custody the following month, he
was indicted and reincarcerated in September 2015. On Janu-
ary 5, 2016, he was injured when another pretrial detainee as-
saulted him. He was treated and transferred to a different fa-
cility about three weeks later on January 29.
Thomas filed the original complaint in this case in June
2017. The complaint alleged that, prior to his initial arrest,
Thomas had been diagnosed with PTSD stemming from an
assault he had suffered years earlier. In October 2015, after his
reincarceration, he told corrections officers guarding the unit

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No. 21-2458 3
in which he was housed that another inmate had threatened
him. Although the corrections officers told Thomas he would
be moved, they took no action. A few months later, Thomas
was attacked by this inmate. As a result, Thomas suffered a
split lip and a dislocated shoulder. He was treated and housed
in a segregation unit before being transferred out of the Jail.
The complaint asserted liability against numerous individu-
als. As relevant here, Thomas sued unnamed corrections of-
ficers guarding his Jail unit for violating his constitutional
rights when they failed to protect him from assault by the
other inmate.
Thus began a series of motions to dismiss, judicial rulings,
and amended complaints. Meanwhile, discovery on some of
the claims began. After Thomas filed a second amended com-
plaint that still had not named the corrections officers more
than two years after the suit was initiated, the district court
sensed the need for pellucid direction. In December 2019, it
advised Thomas that he could “amend the complaint only to
identify the individual defendants involved in the failure to
protect claim” and that the court would “not entertain any
other amendments.”
Despite the district court’s clarity, Thomas did not follow
its instructions. In January 2020, he sought leave to file a third
amended complaint, which forms the crux of the present ap-
peal. He finally named three Jail corrections officers who
guarded his housing unit and purportedly failed to protect
him from being assaulted. But Thomas also attempted to
bring six new claims against two new defendants: Jail clerks
who conducted intake evaluations when Thomas arrived at
the facility in June 2015 and again in September 2015.

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4 No. 21-2458
Based on records obtained during discovery, Thomas con-
tended that the clerks altered intake forms to obscure his men-
tal health issues, even though he informed them of his PTSD
when being processed. Specifically, Thomas asserted that the
June 2015 intake clerk entered “No” despite Thomas’s affirm-
ative response to Question 15a: “Do you have a developmen-
tal disability or mental health issue that might affect your
safety in custody?” The September 2015 clerk accurately rec-
orded Thomas’s “Yes” response to Question 15a, but the clerk
entered answers to other intake inquiries in a way that ob-
scured Thomas’s report of mental issues. (The parties debate
this last point, but we accept all allegations for present pur-
poses.)
These facts, Thomas said, meant his original failure-to-
protect theory was “incorrect.” The corrections officers, it
turns out, “did not know about the plaintiff’s PTSD, because
the intake clerks took steps, unbeknownst to the plaintiff, to
conceal that information” from the officers. The proposed
third amended complaint added three section-1983 claims
against each intake clerk, alleging failure to protect from
physical injury, violation of the Eighth Amendment’s ban on
cruel and unusual punishment, and violation of due process
under the Fourteenth Amendment. Each count was predi-
cated on the clerks “ignoring” or “changing” Thomas’s an-
swers on the intake forms regarding PTSD, “resulting in the
correctional officers being unaware of the plaintiff’s special
need for protection.”
The district court denied the motion to amend. The court
thought Thomas’s newest theory was inconsistent with posi-
tions he had taken since the suit was filed years earlier. In the
circumstances, the district court concluded, justice did not

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No. 21-2458 5
require that Thomas be allowed to add the defendants and
counts, and such an addition would only cause further delay.
Thomas filed a fourth amended complaint that complied
with the court’s December 2019 instructions. Another motion
to dismiss duly followed. Thomas asked the district court to
reconsider its order denying the addition of the intake clerks.
He argued that he could not have asserted liability against the
intake clerks until he received the purportedly falsified intake
forms as part of discovery in October 2019.
Again, the district court was not persuaded that the
amendment was justified. Thomas’s new allegations, the
court thought, did not plausibly suggest how the intake clerks
were involved in the alleged failure to protect Thomas from a
fellow inmate’s attack. Nor was there any allegation that cor-
rections officers had reviewed or been shown the intake
forms. Thus, the court reasoned, there was no plausible link
between the contents of the intake forms and the assault. In
fact, the court noted, the September 2015 intake form did doc-
ument that Thomas suffered from mental health issues. So,
even if a corrections officer guarding Thomas’s unit had
looked at his intake form, he would have seen that documen-
tation.
Eventually, all of Thomas’s operative claims were either
dismissed or resolved against him on summary judgment, in-
cluding the failure-to-protect claims against the corrections
officers guarding his Jail unit. This appeal followed.
II. Analysis
The scope of Thomas’s appeal is limited. He does not chal-
lenge the district court’s disposition of the claims against
Sheriff Dart, the county, or the corrections officers. Rather, he

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6 No. 21-2458
focuses on the court’s denial of his motion to amend to add
the intake clerks as defendants.1 He challenges both the pro-
priety of the district court’s denial of leave to amend and the
court’s impartiality in making that decision. We address each
challenge in turn.
A. Leave to Amend
Generally, a party has the right to “amend its pleading
once as a matter of course.” FED. R. C IV. P. 15(a)(1). “In all
other cases,” however, “a party may amend its pleading only
with the opposing party’s written consent or the court’s
leave.” FED. R. C IV. P. 15(a)(2). Here, there is no dispute that
Thomas required leave before he could amend his complaint
to add the intake clerks as defendants.
A court “should freely give leave when justice so re-
quires.” Id. Although generously phrased, this rule still leaves
a district judge with “broad discretion” to deny leave to
amend, such as where there has been undue delay, bad faith,
dilatory motive, or repeated failure to cure deficiencies; where
undue prejudice to the defendants would result; or where
amendment would be futile. Huon v. Denton, 841 F.3d 733, 745
(7th Cir. 2016). We review a district court’s denial of leave to
amend a complaint for abuse of discretion. Id.
1 Although Thomas’s opening brief in this court was unclear, he clar-
ified at oral argument that all counts against the clerks were predicated on
their alleged suppression of his mental health information on the intake
forms. That being so, Thomas does not explain how the proposed claims
citing the Eighth and Fourteenth Amendments allege anything other than
a failure to protect. Consequently, we address only the failure-to-protect
claims. See White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (undevel-
oped arguments are waived on appeal).

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No. 21-2458 7
The district judge outlined several considerations leading
her to conclude that amending the complaint to bring in the
intake clerks was not appropriate. The parties vigorously dis-
pute many issues, such as whether the proposed amendment
was brought in bad faith or after unreasonable delay, whether
it prejudiced the defense, whether it sought to join new de-
fendants improperly, and whether it fell outside the proper
limitations period. Because this court may affirm a district
court’s judgment on any basis supported by the record, Knut-
son v. Village of Lakemoor, 932 F.3d 572, 576 (7th Cir. 2019), we
need not wade into most of these debates. Instead, we resolve
this appeal on what seems to us the simplest basis: Leave to
amend was properly rejected because it would have been fu-
tile.
Amendment is futile when it seeks to add a new claim that
does not allege a viable theory of liability. See Gandhi v. Sitara
Capital Mgmt., LLC, 721 F.3d 865, 868–70 (7th Cir. 2013). Be-
cause futility—essentially failure to state a claim—is a legal
question, our abuse-of-discretion review includes de novo con-
sideration of the issue. Sandy Point Dental, P.C. v. Cin. Ins. Co.,
20 F.4th 327, 335 (7th Cir. 2021). As explained below, amend-
ment would have been futile because Thomas could not plau-
sibly allege that reasonable officers in the intake clerks’ posi-
tions would have known about a specific substantial risk to
Thomas at the time of their purportedly wrongful conduct.2
2 After the June 2015 intake screening, Thomas was released. He was
evaluated again by a different intake clerk in September 2015 when he be-
gan the period of incarceration during which he was assaulted. Given this
sequence, the issue of the initial intake clerk’s liability might also raise
causation questions. For present purposes, we can ignore those questions.

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8 No. 21-2458
“Incarcerated people have a clearly established right to be
free from physical harm inflicted by others in the institution,”
and under section 1983 they may sue jail or prison staff who
fail to protect them. Kemp v. Fulton County, 27 F.4th 491, 494
(7th Cir. 2022). Such a claim brought by a pretrial detainee
arises under the Due Process Clause of the Fourteenth
Amendment, whereas a convicted inmate’s claim arises under
the Eighth Amendment’s ban on cruel and unusual punish-
ment. Id. at 495. Under either amendment, a plaintiff bringing
a failure-to-protect claim traditionally had to allege that a de-
fendant was subjectively aware of a substantial risk of serious
harm to the plaintiff. Id. at 495–96.
But that standard changed after Kingsley v. Hendrickson,
576 U.S. 389 (2015). There, the Supreme Court held that a pre-
trial detainee asserting an excessive-force claim did not need
to allege that a defendant was subjectively aware that the
force he used was excessive. Rather, he need only allege that
the force was objectively unreasonable. Id. at 396–97. We have
concluded that Kingsley's objective-unreasonableness stand-
ard applies to other Fourteenth Amendment claims by pre-
trial detainees, including failure-to-protect claims. Kemp,
27 F.4th at 495.
Now, to state a viable failure-to-protect claim under the
Fourteenth Amendment, a pretrial detainee must allege:
(1) the defendant made an intentional decision regarding the
conditions of the plaintiff’s confinement; (2) those conditions
put the plaintiff at substantial risk of suffering serious harm;
(3) the defendant did not take reasonable available measures
to abate the risk, even though a reasonable officer in the cir-
cumstances would have appreciated the high degree of risk
involved, making the consequences of the defendant’s

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No. 21-2458 9
inaction obvious; and (4) the defendant, by not taking such
measures, caused the plaintiff’s injuries. Id. at 496 (adopting
the analysis from Castro v. County of Los Angeles, 833 F.3d 1060,
1071 (9th Cir. 2016) (en banc)).
The third element requires an allegation that a specific de-
fendant “was on notice of a serious risk of harm” to the de-
tainee. Id. at 497. Put another way, it must be plausibly alleged
that a reasonable officer in a defendant’s circumstances would
have appreciated the high degree of risk the detainee was fac-
ing. Id.; see also Westmoreland v. Butler County, 29 F.4th 721, 730
(6th Cir. 2022) (“A pretrial detainee need not prove subjective
elements about an officer’s actual awareness of the level of
risk, but he must prove the officer was more than merely neg-
ligent; the officer must have acted with reckless disregard in
the face of an unjustifiably high risk of harm.” (internal quo-
tation marks omitted)); Castro, 833 F.3d at 1072 (“The jury here
found that the officers knew of the substantial risk of serious
harm to Castro, which necessarily implies that the jury found
that a reasonable officer would have appreciated the risk.”).
In Kemp, for example, we explained that there was no evi-
dence that defendants “should have been on notice of a sub-
stantial risk to Kemp’s safety” because “he never reported his
verbal disagreement” with—“or the ensuing threats” from—
the three inmates who later attacked him and, “prior to the
beating, all four men had cohabited peacefully for months.”
27 F.4th at 497.
Thomas does not attempt to argue that the intake clerks
were on notice of the risk posed by the particular inmate who
ultimately assaulted him. Nor would such an allegation be
plausible, since the first threat by that inmate—the first sign

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10 No. 21-2458
of his danger to Thomas—occurred in October 2015, after the
clerks’ involvement with Thomas ended.
But Thomas nevertheless maintains that he can allege a vi-
able failure-to-protect claim under the following theory:
(1) the intake clerks suppressed information about his mental
condition and caused him to be placed in the general popula-
tion rather than a medical unit; (2) being in the general popu-
lation put him at substantial risk of suffering serious harm be-
cause his mental condition made him “vulnerable”; (3) the
clerks “did not take reasonable measures to abate that risk by
not over-riding [sic] the answers [he] had given … about his
mental health”; and (4) by placing him in the general popula-
tion, the clerks caused his injuries.
These allegations still do not state a viable claim. Under
the second element, Thomas alleges that he was at substantial
risk of being assaulted because he had PTSD and was housed
in the Jail’s general population. And this is the risk Thomas
suggests—though does not clearly assert—under the third el-
ement that reasonable officers in the intake clerks’ positions
would have appreciated.
Without more, however, simply being housed in the Jail’s
general population, even while suffering from PTSD, is not a
particular enough risk in the failure-to-protect context. The
unfortunate reality is that jails and prisons are dangerous
places inhabited by violent people. See Grieveson v. Anderson,
538 F.3d 763, 777 (7th Cir. 2008). The constitutional expecta-
tion “is that guards act responsibly under the circumstances
that confront them,” not that they anticipate every potential
danger facing a detainee. Riccardo v. Rausch, 375 F.3d 521, 525
(7th Cir. 2004). As the Supreme Court cautioned in Kingsley,
an assessment of objective reasonableness must be made “on

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No. 21-2458 11
the facts and circumstances of each particular case” and “from
the perspective of a reasonable officer on the scene, including
what the officer knew at the time.” 576 U.S. at 397 (internal
quotation marks omitted); accord Kemp, 27 F.4th at 495.
To be sure, the specific risk a reasonable officer would ap-
preciate need not be uniquely associated with the plaintiff or
his attacker. The risk can be based on “a victim’s particular
vulnerability” (even though the identity of the assailant is not
known before the attack), or it can be based on “an assailant’s
predatory nature” (even though the identity of the victim is
not known before the attack). Brown v. Budz, 398 F.3d 904, 915
(7th Cir. 2005); see also id. (noting that a risk can come from “a
single source or multiple sources”). But either way, the risk
must be somehow “specific to a detainee, and not a mere gen-
eral risk of violence.” Id. at 909. Thomas cannot assert an ap-
preciable risk of harm based solely on his placement in the
Jail’s general population because the “general risks of vio-
lence in prison” confront virtually every detainee. See Weiss v.
Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000).
Nor has Thomas offered a plausible reason why the intake
clerks should have been on notice that placing him in the Jail’s
general population with PTSD created a substantial risk. He
does not suggest that his having PTSD provoked, encouraged,
or made more likely his assault by another Jail inmate. And
he does not suggest that the inmate who assaulted him had a
known propensity for violence against detainees like Thomas.
This case, then, resembles In re Estate of Rice, 675 F.3d 650 (7th
Cir. 2012). There we held that a valid failure-to-protect claim
was not alleged when a mentally ill detainee was assaulted by
another inmate over the detainee’s hygiene problem because
jail personnel—though aware of the hygiene problem—“had

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12 No. 21-2458
no notice that he was at risk of assault because of that prob-
lem.” Id. at 670.
Finally, Thomas asserts that the intake clerks were on no-
tice of the substantial risk he faced having PTSD while in the
general population because the Prison Rape Elimination Act
(PREA) classified him as (in his words) “vulnerable” and be-
cause Cook County Department of Corrections General Order
24.14.8.0 mandated that he be screened for potential place-
ment in a medical unit. We are unpersuaded.
In enacting PREA, Congress found that incarcerated indi-
viduals “with mental illness are at increased risk of sexual vic-
timization.” 34 U.S.C. § 30301(3). Disturbing as this finding is,
we do not see how it helps Thomas satisfy the pleading re-
quirement. Put aside that a bare “increased risk” does not nec-
essarily correlate to a “substantial risk.” See Brown, 398 F.3d at
911 (suggesting that a “substantial risk” is one that, at the very
least, is likely to materialize). Such broad and generalized leg-
islative findings cannot be the basis of risk in the failure-to-
protect context where, we reiterate, “the facts and circum-
stances of each particular case” are the critical focus. Kemp,
27 F.4th at 495. As for General Order 24.14.8.0, Thomas did
not provide a copy, and we are unable to locate one. But what-
ever the order’s specific provisions, a section-1983 claim must
be predicated on constitutional violations, not on violations of
departmental regulations or practices. Estate of Simpson v. Gor-
bett, 863 F.3d 740, 746 (7th Cir. 2017). A failure-to-protect claim
under the Fourteenth Amendment requires an allegation that
a defendant should have been aware of a specific substantial
risk, not that a defendant should have been aware of or fol-
lowed a general administrative rule.

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No. 21-2458 13
Simply put, the alleged circumstances in this case would
not have suggested to reasonable officers in the intake clerks’
positions that Thomas was at substantial risk of being as-
saulted. Thus, Thomas could not state viable failure-to-pro-
tect claims against the intake clerks and his attempt to do so
was futile. The district court properly denied leave to file the
third amended complaint.
B. Purported Judicial Bias
There remains only Thomas’s suggestion of bias. He relies
on 28 U.S.C. § 455(a), which says a judge must disqualify her-
self from any proceeding in which her “impartiality might
reasonably be questioned.” (Thomas does not invoke any of
the specific bases for recusal outlined in § 455(b).) Whether
there is an appearance of partiality is assessed from the per-
spective of an objective, well-informed, thoughtful observer.
United States v. Barr, 960 F.3d 906, 919 (7th Cir. 2020). Thomas
did not raise the issue of disqualification below, but we will
consider a judicial-disqualification argument on appeal even
if it was not presented to the district court. Fowler v. Butts,
829 F.3d 788, 794–95 (7th Cir. 2016).
In Thomas’s view, bias was evident here because his at-
tempt to bring new claims against new defendants was “ig-
nored and dismissed without as much as a single mention in
the court’s orders.” As a factual matter, two minute orders re-
fute this assertion. But the main stumbling block for Thomas
is a legal one. By itself, an adverse judicial ruling does not pro-
vide a valid basis for questioning a judge’s impartiality. Liteky
v. United States, 510 U.S. 540, 555 (1994); United States v. Mar-
tin, 21 F.4th 944, 945 (7th Cir. 2021); see also United States v.
Perez, 956 F.3d 970, 975 (7th Cir. 2020) (“In addition, a judge’s
‘ordinary efforts at courtroom administration’ or docket

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14 No. 21-2458
management are ‘immune’ from claims of bias or partiality.”
(quoting Liteky, 510 U.S. at 556)). Errant decisions are grounds
for appeal, not for seeking a judge’s recusal. Liteky, 510 U.S. at
555.
Thomas’s attempt to glean bias from language in some of
the district judge’s summary-judgment determinations is just
the same argument in a different guise. And it, too, fails. For
instance, he characterizes as “cavalier” the court’s determina-
tion that “no reasonable jury” could have found in his favor
on an issue. That is not disdainful rhetoric; that is the legal
standard for granting summary judgment. See, e.g., Donald v.
Wexford Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020).
A “hypersensitive or unduly suspicious person” might sense
partiality in these words, but an objective and thoughtful ob-
server could not. Barr, 960 F.3d at 920.
The district judge, despite Thomas’s ever-changing com-
plaint, managed this case with evident fairness.
III. Conclusion
The district court’s denial of leave to file the third
amended complaint was not improper, and it is certainly not
a valid basis to question the judge’s impartiality. The judg-
ment is AFFIRMED.

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