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Seventh Circuit Affirms Dismissal of Failure to Protect Claim Premised on Nearly Deaf Guard Not Responding to Prisoner’s Cries for Help

By Sam Rutherford

On February 5, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed the summary judgment dismissal of a pretrial detainee’s federal civil rights claim under 42 U.S.C. § 1983, agreeing with the lower court that a jail guard was not guilty of failure to protect the detainee from a beating by other prisoners during which his cries for help went ignored by the hearing-impaired guard because he wasn’t wearing his hearing aids as prescribed at the time.

Gregory Kemp was confined in the Fulton County Jail awaiting trial in September 2016. He was housed with three other prisoners, who beat him unconscious during an argument, causing serious injuries.

While the beating was going on, jail guard Sheldon Burget was in a nearby hallway. But he did not respond to Kemp’s cries for help because he did not hear them. Burget has about 60% hearing loss in one ear and about 40% hearing loss in the other. His physician had prescribed a hearing aid for one ear, but Burget stopped wearing it about six months before Kemp was assaulted. Only when another guard discovered Kemp’s motionless body on the floor was a call sent out for emergency medical assistance.

Aided by attorneys Thomas L. Norman, Jr. and James P. LeFante of LeFante Law Office and co-consul Richard L. Steagall, all of Peoria, Kemp filed suit in U.S. District Court for the Central District of Illinois against Burget and the guard who found him, Tiffany Williams, as well as their supervisor, Sgt. Christopher Ford, and Fulton County Sheriff Jeff Standard.

The suit alleged that Burget’s failure to wear his hearing aid violated Kemp’s due process rights because the guard could not hear him cry for help. The plaintiff also alleged that Burget’s supervisors knew or should have known of the risk that Burget would be unable to perform his duties adequately without his hearing aid because he had previously been discharged from another job within the jail due to his poor hearing. When the district court granted summary judgment in favor of the defendants, Kemp appealed.

Taking up the case then, the Seventh Circuit began its analysis by noting that because Kemp was a pretrial detainee, his claims arose under the Fourteenth Amendment’s due-process clause rather than the Eighth Amendment’s cruel-and-unusual-punishment clause. Following the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), and the Ninth Circuit’s decision in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), the Court concluded that pretrial detainees alleging failure-to-protect claims need not satisfy the “deliberate indifference” standard required in Eighth Amendment cases. Instead, the relevant decision is first whether “the defendant officer [intended] to carry out a certain course of actions; negligence is not enough. At that point, the remaining question is whether that course is objectively reasonable. If not, there is a Fourteenth Amendment violation.”

Applying this test, the Court said Kemp’s claims failed for several reasons. First, nothing in the record indicated that Burget’s hearing loss actually prevented him from hearing Kemp’s cries for help. Other guards were nearby and also did not hear anything. Moreover, there was no evidence suggesting that Burget had a history of poor job performance as a result of his hearing loss. In fact, he had been discharged from a previous position for this issue but had held his job as a guard without any issues for many years before Kemp was assaulted. Finally, nothing in the record proved that Burget would have heard Kemp’s cries for help if he had been wearing his prescribed hearing aid. His deposition testimony was that the hearing aid did not work, and Kemp’s lawyers did not rebut this assertion with any evidence.

As for Kemp’s supervisory liability claims against the sheriff and sergeant, the Seventh Circuit held that the correct legal test is whether the facts “show that Standard and Ford acted purposefully, knowingly, or with reckless disregard for the consequences of hiring and retaining Burget despite his hearing disability.” Again, the Court said no.

First, Kemp’s claims failed against these defendants because there was no evidence in the record suggesting that another officer without a hearing impairment would have heard his cries for help. Second, Kemp presented no evidence that the supervisors knew Burget was not wearing his hearing aid or that they had reason to believe he could not perform his job without the device.

“Without notice that Burget was posing a danger to the people detained in the Fulton County Jail, his supervisors’ decision to retain him may have been negligent, but there is no evidence that it was purposeful, knowing, or reckless,” the Court concluded.

For these reasons, the appellate court concluded that Kemp failed to present “sufficient evidence for a reasonable jury to conclude that defendants Burget, Standard, or Ford took objectively unreasonable actions that caused his injuries.” It therefore affirmed the district court’s dismissal of the case on summary judgment. See Kemp v. Fulton County, 2022 U.S. App. LEXIS 5186, (7th Cir.).

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Related legal case

Kemp v. Fulton County