Roberto Silva v. JAMES READ and DEKALB COUNTY, ILLINOIS

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 2, 2022*
Decided September 8, 2022
Before
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-3029
ROBERTO SILVA,
Plaintiff-Appellant,
v.
JAMES READ and DEKALB COUNTY,
ILLINOIS,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 20 C 50007
Iain D. Johnston,
Judge.
O R D E R
Roberto Silva, who was a pretrial detainee in Illinois, appeals the entry of
summary judgment on his claim that a correctional officer, James Read, failed to protect
him from another detainee’s attack. But because Silva has not produced sufficient
evidence to create a fact issue over whether Read acted unreasonably by failing to
separate the two men, we affirm.
* 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NONPRECEDENTIAL DISPOSITION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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Because we are reviewing the entry of summary judgment, we view the facts in
the light that most favors Silva. Henry v. Hulett, 969 F.3d 769, 774 (7th Cir 2020) (en
banc); F ED. R. C IV. P. 56. In early 2019, Silva was a pretrial detainee at the DeKalb
County Jail. Another detainee, Brandon Mills, was moved into Silva’s cellblock. Silva
watched as Mills paced in the dayroom, kicked a window, and behaved erratically. By
this time Read, the correctional officer, had entered the dayroom, and Silva told Read
that Mills made him feel uncomfortable. Read asked Mills what was wrong and offered
to relocate him to another cellblock. Mills replied, “If Mr. Silva wants to fight, we can
fight.” Silva, who denied having any prior conflict with Mills, said to Read that he did
not know why Mills made this remark. Silva added that he had seen Mills arguing and
fighting with other inmates. After Read spoke with Mills, Silva told Read that he felt
threatened and wanted to move to a different cellblock if Mills remained. Read declined
to move either detainee and returned to the control room. Read says he felt that Mills
had calmed down after their conversation and that he did not think that Mills or Silva
had threatened the other.
Read was no longer on duty the next morning when Mills opened Silva’s cell
door and entered. Silva, who had been sitting on his bed, stood up and told Mills to
leave. Mills approached Silva and began punching him in the face. Silva managed to
push Mills out of the cell and use the intercom to call for assistance. Correctional
officers soon arrived. Silva suffered a broken nose and a split lip that required stitches.
Silva turned to federal court for relief. As relevant to this appeal, he asserted that
Read violated his due-process rights by failing to protect him from Mills’s attack.
Discovery ensued, and Silva moved for recruitment of counsel. The district court
denied the motion based on its conclusion that Silva’s claims were not particularly
complex or beyond his capabilities of presenting them. Silva also sought to extend the
discovery schedule, but the court determined that he had not justified the need for an
extension and denied the request without prejudice. (The court invited Silva to renew
his motion for extension, as long as he specified what obstacles prevented him from
meeting the deadline. But Silva never renewed the motion.)
The court ultimately granted the defendants’ motion for summary judgment.
However, because Silva did not respond appropriately to the defendants’ statement of
material facts in compliance with the local rules, the court accepted the defendants’
version of the facts and construed them in the light most favorable to Silva. Describing

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the case as a “close call,” the court concluded that Silva had not introduced evidence
sufficient to show that the information available to Read would have put a reasonable
officer on notice that Mills posed a heightened risk to Silva’s safety. At the time Read
entered the dayroom, the court explained, Mills had not threatened Silva or any other
inmate, nor were any of Mills’s actions directed toward Silva. Alternatively, the court
stated, Read was shielded by qualified immunity because his actions had not violated a
clearly established constitutional right—i.e., a right for Silva to be separated from Mills
under the circumstances of this case.
On appeal, Silva first challenges the court’s summary judgment ruling on his
failure-to-protect claims. Silva contends that the court overlooked evidence—in his and
Read’s deposition testimony as well as Read’s recorded notes—that Read was aware of
Mills’s threatening and aggressive behavior but nonetheless declined to separate Mills
from him, report Mills’s suspicious behavior to superiors, grant Silva’s request to move
to a different cellblock, or take other corrective action.
Because Silva was a pretrial detainee, his failure-to-protect claim arises under the
Fourteenth Amendment’s Due Process Clause. Thomas v. Dart, 39 F.4th 835, 841 (7th Cir.
2022). To prevail on this claim, Silva must show, among other things, that a reasonable
officer in Read’s position would have recognized that Mills posed a substantial risk of
harm. See Kemp v. Fulton County, 27 F.4th 491, 496–97 (7th Cir. 2022).
But Silva failed to adduce sufficient evidence for a factfinder to conclude that
Read acted unreasonably in failing to protect him from the attack. See Kingsley v.
Hendrickson, 576 U.S. 389, 396–97 (2015). Read’s deposition testimony may have
acknowledged Mills’s erratic conduct in the dayroom, but this evidence does not
support an inference that an objectively reasonable person would have been put on
notice of a substantial risk that Mills posed to Silva’s safety. Read testified, for instance,
that Mills did not make any physical advances toward Silva, that Mills did not directly
threaten to attack Silva, and that after their conversation Mills appeared to have calmed
down and become less agitated. Silva highlights Mills’s comment to Read that he would
fight Silva if Silva wished, but this statement is not sufficient for a jury to conclude that
a reasonable officer in Read’s shoes would have appreciated the risk entailed by not
separating the two men. See id. at 497.
Silva also challenges the district court’s conclusion that Read was entitled to
qualified immunity. But because the court correctly concluded that Silva did not create
a fact issue with regard to his failure-to-protect claim, we need not reach this issue.

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We briefly turn to Silva’s arguments regarding the district court’s pretrial
rulings. First, Silva challenges the district court’s denial of his motion for recruited
counsel—a request he deems necessary based on his incarcerated status, his limited
access to resources, and the “close” nature of the court’s decision. But the court
appropriately exercised its discretion to deny the motion. The court reasonably
determined that Silva appeared competent to litigate his claims on his own, as
demonstrated by the quality of his pleadings and discovery filings (which, the court
noted, showed a “sophisticated” grasp of the facts and law), his education (associate’s
degree) and work history (former business owner), and the straightforward nature of
both his claims and the applicable legal standard. See Pruitt v. Mote, 503 F.3d 647, 654
(7th Cir. 2007) (en banc). To the extent Silva thinks he was disadvantaged having to
litigate against a seasoned opposing counsel, the court was required to consider only
whether he was personally competent to litigate the case, not whether he could present
the case as effectively as a lawyer. See id. at 654–55.
Silva also challenges the denial of his motion to extend discovery. But he
abandoned this challenge when he failed to comply with the court’s directive that he
later renew and adequately justify the need for such a motion.
Lastly, Silva argues for the first time that the court should have (1) compelled the
defendants to produce surveillance footage and (2) allowed him to amend his complaint
to add a Monell claim against the jail. But Silva waived these arguments by not raising
them first in the district court. Mahran v. Advocate Christ Med. Ctr., 12 F.4th 708, 710
(7th Cir. 2021).
Silva’s other arguments are not developed and require no further discussion.
AFFIRMED

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