Kaszuba v. Corley et al

Filing 72

SUMMARY JUDGMENT OPINION entered by Judge Sue E. Myerscough on 6/26/2017. The Plaintiff's Motion to Correct Technical Glitch, d/e 67 is DENIED. The Plaintiff's Motion for Summary Judgment, d/e 63 is DENIED. An agreed Proposed Pretri al Order is due by 12/1/2017. A Final Pretrial Conference is set for 12/8/2017 at 10:00 AM in Courtroom 1 in Springfield before Judge Sue E. Myerscough. Jury Trial is set for 1/9/2018 at 9:00 AM in Courtroom 1 in Springfield before Judge Sue E. Myerscough. Pursuant to Local Rule 16.1(B), this case is referred to Magistrate Judge Schanzle-Haskins for a settlement conference. (MAS, ilcd)

E-FILED

Tuesday, 27 June, 2017 03:29:02 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
)
)
)
Plaintiff,
)
)
v.
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)
ADRIAN CORLEY, et al.
)
Defendants. )
JOSHUA KASZUBA,

14-1339

SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently incarcerated at
Pontiac Correctional Center brought the present lawsuit pursuant
to 42 U.S.C. § 1983 alleging excessive force, failure to intervene,
and deliberate indifference to a serious medical need. The matter
comes before this Court for ruling on Plaintiff’s Motion for Summary
Judgment. (Doc. 63). The motion is denied.
PRELIMINARY MATTER
Plaintiff filed a Motion to Correct a Technical Glitch and
Motion to Grant Plaintiff’s Motion for Summary Judgment. (Doc.
67). Plaintiff alleges in his motion that a technical glitch unduly

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benefited the Defendants by allowing them additional time to file a
response to his motion for summary judgment.
The Court granted Plaintiff leave to file a motion for summary
judgment in its Order entered August 8, 2016. (Doc. 62). For
reasons the Court cannot determine, Plaintiff’s motion for summary
judgment was not docketed until December 5, 2016. Once
docketed, Defendants had 21 days to file a response. Defendants
filed a timely motion for an extension of time that was later granted.
See Text Order entered January 6, 2017.
Any delay that may have occurred in this case is not
attributable to any actions Defendants took. For this reason, and
for those discussed below, Plaintiff’s motion is denied.
LEGAL STANDARD
Summary judgment should be granted “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). All facts must be construed in the light most favorable to the
non-moving party, and all reasonable inferences must be drawn in
his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
The party moving for summary judgment must show the lack of a
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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). In order to be a “genuine” issue, there must be
more than “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
FACTS
Plaintiff was incarcerated at Pontiac Correctional Center
(“Pontiac”). Defendants were employed at Pontiac in the following
capacities: Defendant Pfister was the Warden; Defendant DeLong
was a correctional major; Defendants French and Zook were
correctional lieutenants; Defendants Corley, Mathis, Riccolo, and
Loverant were correctional officers; Defendant Angus was a mental
health professional; and, Defendant Chicke was a medical
technician. Outside of this, the parties agree on very little.
In support of his motion for summary judgment, Plaintiff
points to several documents: (1) a Crisis Watch Record that states
that Plaintiff was placed on suicide watch on July 15, 2013 after he
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was seen on video attempting to tie a noose around his neck and
stated that he had “nothing to live for” (Doc. 65 at 12); (2) medical
records disclose that Defendant Angus approved a stripped cell
after Plaintiff tried to cover his cell window with a smock, and that
Defendant Chicke checked Plaintiff’s vital signs the same day (Doc.
65 at 13-14); (3) the Cumulative Counseling Summary indicates
that Defendant Pfister saw Plaintiff during a Warden’s tour and that
Plaintiff made no requests (Doc. 65 at 15); and, (4) a Mental Health
Progress Note discloses that, on July 17, 2013, Plaintiff complained
of “injuries that occurred during watch placement.”
Plaintiff includes an affidavit from another inmate that states
the inmate heard Plaintiff “begging the C/O to stop hitting him and
to allow the other C/O to cuff him up.” (Doc. 65 at 18). Finally,
Plaintiff submitted a photograph of his arm that apparently shows
his injuries. (Doc. 65 at 17). Defendants have not moved for
summary judgment.
ANALYSIS
Excessive Force
In Eighth Amendment claims for excessive force, the relevant
inquiry is “whether force was applied in a good faith effort to
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maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6
(1992) (citation omitted); see DeWalt v. Carter, 224 F.3d 607 (7th
Cir. 2000) (applying Hudson). In making this determination, the
court may examine several factors, “including the need for an
application of force, the relationship between that need and the
force applied, the threat reasonably perceived by the responsible
officers, the efforts made to temper the severity of the force
employed, and the extent of the injury suffered by the prisoner.”
Dewalt, 224 F.3d at 619. Significant injury is not required, but “a
claim ordinarily cannot be predicated on a de minimis use of
physical force.” Id. at 620 (citing Hudson, 503 U.S. at 9-10).
“Thus, not every push or shove by a prison guard violates a
prisoner’s constitutional rights.” Id.
According to the allegations in Plaintiff’s Complaint and his
motion, at least three correctional officers were present at the time
Defendant Corley allegedly used unconstitutional force. The
affidavit Plaintiff provided from the other inmate corroborates
Plaintiff’s version of events insofar as Plaintiff alleged that he asked
for a different correctional officer to apply the handcuffs, but it
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remains silent on which of the three correctional officers used the
force. Plaintiff says it was Defendant Corley, but Defendant Corley
denies this. Resolution of this issue will require a credibility finding
the Court cannot make at this stage. Therefore, the Court finds
that a genuine issue of material fact exists on Plaintiff’s claim of
excessive force.
Failure to Protect/Intervene
Prison officials may be held liable under the Eighth
Amendment if they had “a realistic opportunity to step forward and
prevent a fellow officer from violating a plaintiff’s rights through the
use of excessive force but fail[ed] to do so. . . .” Miller v. Smith, 220
F.3d 491, 495 (7th Cir. 2000). A plaintiff must necessarily show an
underlying constitutional violation to prevail on a claim of
bystander liability. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.
2005).
As material factual disputes exist regarding the alleged use of
excessive force, the Court cannot find that Plaintiff is entitled to
judgment as a matter of law on his failure to intervene claim.

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Deliberate Indifference to a Serious Medical Need
Inmates are entitled to adequate medical care under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
To prevail, a plaintiff must show that the prison official acted with
deliberate indifference to a serious medical need. Id. at 105.
Claims of negligence, medical malpractice, or disagreement with a
prescribed course of treatment are not sufficient. McDonald v.
Hardy, 821 F.3d 882, 888 (7th Cir. 2016) (citing Pyles v. Fahim, 771
F.3d 403, 408 (7th Cir. 2014), and Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008)). Rather, liability attaches when “the
official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994).
Plaintiff has not provided sufficient evidence to show that he
suffered from an objectively serious medical need. See King v.
Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (“An objectively serious
medical need is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay
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person would easily recognize the necessity for a doctor's attention.”
(internal quotations omitted)). Construed in the light most
favorable to Defendants, Plaintiff’s photograph shows only that he
suffered a bruise on his arm as a result of the alleged incidents.
This is not sufficient. See, e.g., Roberts v. Samardvich, 909 F.
Supp. 594, 606 (N.D. Ind. 1995) (one-inch laceration was not a
“serious medical need” absent evidence that the wound was lifethreatening or posed a risk of needless pain or lingering disability,
and where laceration bled only for a short time and was treated
with hydrogen peroxide and a bandage).
Plaintiff may show deliberate indifference through
circumstantial evidence. See Farmer, 511 U.S. at 842 (subjective
awareness of a risk “is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official knew
of a substantial risk from the very fact that the risk was obvious.”).
Plaintiff, however, has not described any facts that would permit
such an inference. Therefore, the Court concludes that a
reasonable juror could conclude that the Defendants did not violate
Plaintiff’s constitutional rights.
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IT IS THEREFORE ORDERED:
1) Plaintiff’s Motion to Correct Technical Glitch [67] is
DENIED.
2) Plaintiff’s Motion for Summary Judgment [63] is DENIED.
3) A final pretrial conference is scheduled for
December 8, 2017 at 10 a.m.
. The Plaintiff
shall appear by video conference and the attorney(s) shall
appear in person before the court sitting in Springfield,
Illinois. The clerk is to issue a writ for the Plaintiff’s
participation in the video conference.
4) The Court will send out proposed jury instructions and
intends to ask the standard voir dire questions published
on the Court’s website (http://www.ilcd.uscourts.gov/
court-info/local-rules-and-orders/judge_orders_rules).
By
December 1, 2017
, the parties shall file:
1) an agreed proposed pretrial order; 2) alternate or
additional jury instructions (no duplicates); 3) motions in
limine; and, (4) additional voir dire questions (not
duplicative of the Court’s). All proposed instructions shall
be clearly marked, identifying the party, the number, and
whether the instruction is additional or alternate (i.e., Pl.'s
1, additional; Pl.'s 2, alternate to Court's 3).
5) The Plaintiff and Defendants shall appear in person at
trial. Incarcerated individuals who are not parties to this
case shall appear by video conference and other nonparty
witnesses may appear by video at the court’s discretion.
Therefore, the proposed pretrial order must include: (1)
the name, inmate number and place of incarceration for
each inmate to be called as a witness; (2) the names and
addresses of any nonparty witnesses for whom a party
seeks a trial subpoena. The party seeking the subpoena
must provide the necessary witness and mileage fees
pursuant to Federal Rule of Civil Procedure 45.
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6) A jury trial is scheduled for January 9-11, 2018
at
9:00 a.m. at the U.S. Courthouse in Springfield, Illinois.
No writs to issue at this time.
7) Pursuant to Local Rule 16.1(B), this case is referred to
Magistrate Judge Schanzle-Haskins for a settlement
conference. Judge Schanzle-Haskins’ chambers will
contact the parties to schedule the conference. Clerk is
directed to notify Judge Schanzle-Haskins’ chambers of
this referral.
ENTERED:

June 26, 2017.

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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