Oliver v. Perez et al

Filing 54

SUMMARY JUDGMENT OPINION: Plaintiff's Motion to Strike 48 DENIED. Defendant's Motion for Summary Judgment 45 DENIED. The parties shall have 30 days from the date of this Order to file any briefs or responses to the Court's state d intention to enter summary judgment on the claims against Defendant Millard. This case is referred to Magistrate Judge Schanzle-Haskins for settlement discussions. A final pretrial conference is scheduled for February 24, 2017 at 11:00a.m. By Fe bruary 17, 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). A jury trial is scheduled for March 14-16, 2017. Clerk is directed to notify the chambers of Magistrate Judge Schanzle-Haskins of the referral for settlement discussions. Judge Schanzle-Haskins' chambers will contact the parties to schedule the settlement conference. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 10/18/2016 Entered by Judge Sue E. Myerscough on 10/18/2016. (SKN, ilcd)

E-FILED

Tuesday, 18 October, 2016 12:31:29 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
)
)
)
Plaintiff,
)
)
v.
)
)
TIMOTHY D. PEREZ, et al.
)
Defendants. )
HAROLD OLIVER,

15-1084

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 failure-to-protect from harm and
excessive force. The matter comes before this Court for ruling on
the Defendants’ Motion for Summary Judgment. (Doc. 45). The
motion is denied.
PLAINTIFF’S MOTION TO STRIKE
Plaintiff filed a Motion to Strike (Doc. 48), seeking to strike the
affidavits Defendants provided in support of their motion for
summary judgment. Plaintiff alleges that the affidavits are defective
because the information contained therein is redundant,
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immaterial, false, and misleading. Plaintiff also alleges that the
affidavits each contain the same scrivener’s error.
Rule 56(c) of the Federal Rules of Civil Procedure provides that
a party moving for summary judgment may support factual
positions through affidavits. Fed. R. Civ. P. 56(c)(1)(A). Such
affidavits “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Id. 56(c)(4).
Rule 12(f) authorizes a court to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Id. 12(f).
Plaintiff attached responses to each of the factual contentions
made in the Defendants’ respective affidavits. Plaintiff disputes the
assertions of fact, but does not otherwise show how Defendants are
not competent to testify on these matters, or that Defendants do not
have personal knowledge of the facts asserted. Therefore, 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
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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
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
At all times relevant, Plaintiff was incarcerated at Hill
Correctional Center (“Hill”). Defendants were all employed at Hill in
the following capacities: Defendants Morrow, Goad, and Perez were
correctional officers; Defendants Barclay and Sheppard were
correctional sergeants; Defendant Carothers was a correctional

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lieutenant assigned to Internal Affairs; and Defendant Millard was a
correctional lieutenant.
The parties agree on very little. On July 21, 2014, Plaintiff
and his cellmate engaged in a physical altercation inside their
locked cell. Each Defendant responded and arrived at a different
time thereafter. Defendant Perez arrived first and called for backup.
Defendant Goad responded and administered chemical spray
through the chuckhole in Plaintiff’s cell. Defendant Morrow arrived
next and administered additional chemical spray. Eventually,
Defendant Millard arrived and the altercation ceased.
The nature of this altercation is in dispute: Plaintiff says he
was attacked with a fan and continued to be attacked while the
Defendants laughed and stood idle outside the cell; Defendants
assert that Plaintiff was an active participant in the fight who
disobeyed several direct commands to stop fighting. Though the
parties agree that chemical spray was used during this altercation,
Plaintiff alleges it was sprayed directly in his face while he pleaded
to the officers for help. Defendants deny this assertion.
Finally, several documents exist in the record that suggests
Plaintiff attempted to warn prison officials that he faced a
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substantial threat of physical harm from his cellmate prior to the
altercation on July 21, 2014. (Doc. 46-2 at 23-27).
ANALYSIS
Failure to Protect
To succeed on a failure to protect claim, a plaintiff must show
(1) “that he is incarcerated under conditions posing a substantial
risk of serious harm,” and, (2) prison officials acted with “deliberate
indifference” to that risk. Farmer v. Brennan, 511 U.S. 825, 834
(1994). For purposes of satisfying the first prong, “it does not
matter whether the risk comes from a single source or multiple
sources, any more than it matters whether a prisoner faces an
excessive risk of attack for reasons personal to him or because all
prisoners in his situation face such a risk.” Id. at 843. A prison
official acts with deliberate indifference if he “knows of and
disregards an excessive risk to inmate health or safety; the official
must both be aware of the facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. A plaintiff “normally proves actual
knowledge of impending harm by showing that he complained to
prison officials about a specific threat to his safety.” Pope v. Shafer,
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86 F.3d 90, 92 (7th Cir. 1996) (quoting McGill v. Duckworth, 944
F.3d 344, 349 (7th Cir. 1991)). Liability attaches where “deliberate
indifference by prison officials effectively condones the attack by
allowing it to happen….” Haley v. Gross, 86 F.3d 630, 640 (7th Cir.
1996).
Plaintiff alleges two distinct claims for failure to protect from
harm: (1) prison officials assigned him to a cell with an inmate who
had a known propensity for violence, and then kept him there after
Plaintiff had informed them of specific threats to his safety; and (2)
prison officials failed to intervene during the physical altercation
with this cellmate.
Defendant Carothers is the only defendant who could have
known about the risk of harm Plaintiff faced prior to the altercation
in question. Defendant Carothers states in his affidavit that an
inmate who fears for his safety can notify any member of the
correctional staff, who will then relay those concerns to Internal
Affairs, or, an inmate may contact Internal Affairs directly. (Doc.
46-2 at 21, ¶ 6-7). Internal Affairs will then attempt to verify the
threat. Defendant Carothers stated further that Plaintiff had

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expressed generalized fears for his safety in early 2014, but Plaintiff
never mentioned the name of his eventual assailant.
As exhibits to their motion for summary judgment, Defendants
provided copies of two letters Plaintiff purportedly drafted. These
letters, dated July 11, 2014, and July 14, 2014, list Defendant
Carothers as an intended recipient and describe threats of physical
harm Plaintiff allegedly faced from his cellmate. Defendant
Carothers denies receiving these letters, but the Defendants do not
otherwise offer any evidence to refute Plaintiff’s assertions that he
sent the letters. These questions will need to be resolved by the
trier of fact.
When the physical altercation commenced on July 21, 2014,
the responding defendants were not constitutionally required to
immediately separate the inmates at risk of their own personal
safety. Guzman v. Sheahan, 495 F.3d 852, 858 (7th Cir. 2007) (“A
prison guard, acting alone, is not required to take the unreasonable
risk of attempting to break up a fight between two inmates when
the circumstances make clear that such action would put her in
significant jeopardy.”). The Constitution requires only that prison
officials respond reasonably to any known risk of substantial harm,
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even if the harm is not ultimately avoided. Peate v. McCann, 294
F.3d 879, 882 (7th Cir. 2002) (citing Farmer, 511 U.S. at 847).
Defendant Perez arrived at Plaintiff’s cell first and states in his
affidavit that he called for backup once he observed the altercation.
(Doc. 46-2 at 9, ¶ 4). Though Plaintiff argues otherwise, Defendant
Perez was not required to open the cell door immediately. Even if
the altercation was as one-sided as Plaintiff suggests, Defendant
Perez was still outnumbered and confronted with a situation where
at least one inmate was using an object as a bludgeon. Defendant
Perez’s actions in calling for backup, and waiting a short time for
additional officers to arrive, cannot be characterized as an
unreasonable response, or as deliberately indifferent. See Guzman,
495 F.3d at 858 (prison guard who immediately called for help
when two inmates began to fight was not deliberately indifferent
where the guard did not otherwise have prior knowledge of a
substantial risk of harm). In addition, Plaintiff’s deposition
testimony also suggests that Defendant Perez ordered the inmates
to stop, rather than just standing idly by. Pl.’s Dep. 38:20-21 (“The
officer said, break it up.”).

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While Defendant Perez’s initial actions did not violate the
Constitution, disputed issues of fact still remain regarding the
events that transpired after Defendant Perez called for assistance.
Plaintiff’s version of the facts suggests that after help arrived, the
correctional officers unnecessarily prolonged the fight for their own
entertainment by not opening the door, laughing, cheering, and
disbursing chemical spray indiscriminately through an opening in
the cell door. Defendants deny Plaintiff’s account, and argue that
the inmates were separated as soon as reasonably feasible, but the
record does not warrant a finding that the Defendants are entitled
to judgment as a matter of law. Plaintiff’s version, if believed by the
trier of fact, is sufficient to support a finding that Defendants Perez,
Goad, and Morrow violated the Eighth Amendment.
Defendants Barclay and Sheppard present a different
argument. Each of these defendants states in his respective
affidavit that he does not remember an altercation between Plaintiff
and another inmate that occurred on July 21, 2014. (Doc. 46-2 at
16-19). Both aver that they would have each written an incident
report had the events occurred as Plaintiff’s described. Because
they are unable to locate any such incident reports, they contend
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that they were not present during the altercation. Plaintiff testified
that they were. Pl.’s Dep. 65:11-17 (Defendant Sheppard “was
there on scene…[s]tanding there laughing with the rest of them.”);
67:22-68:4 (Defendant Barclay’s role was the same as Defendant
Sheppard’s). Only the trier of fact can resolve this dispute.
Plaintiff also alleges that Defendant Millard was present.
Defendants point out in their motion for summary judgment that
Defendant Millard was never served in this case. A review of the
record indicates that Defendant Millard was inadvertently
terminated as a defendant, and, thus, a request for waiver of service
was never sent.
The Court acknowledges it has a duty to ensure that
defendants are served in actions brought by pro se litigants. See
Fed. R. Civ. P. 4(c)(3); Williams v. Werlinger, 795 F.3d 759 (7th Cir.
2015). Ordinarily, the Court would order service on Defendant
Millard to rectify the omission. However, Defendants were proactive
about this issue and provided an affidavit and incident report from
Defendant Millard as part of their motion for summary judgment.
(Doc. 46-2 at 13-15). Defendants also inquired about Defendant
Millard’s involvement at Plaintiff’s deposition. Pl.’s Dep. 68:5-70:9.
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Rule 56(f) of the Federal Rules of Civil Procedure allows a
court to “consider summary judgment on its own after identifying
for the parties material facts that may not be genuinely in dispute.”
Fed. R. Civ. P. 56(f)(3). Defendant Millard’s incident report states
that he arrived after chemical spray had been used and that the
inmates refused orders to cuff up shortly before Defendant Millard
ordered the door to be opened. (Doc. 46-2 at 15). Plaintiff
previously testified under oath that he had no evidence to refute
Defendant Millard’s report. Pl.’s Dep. 70:5-9. Insofar as Plaintiff’s
response to Defendant Millard’s affidavit and report contradicts his
previous deposition testimony, the response will not create a
genuine issue of material fact to defeat summary judgment.
Simpson v. Franciscan Alliance, Inc., 827 F.3d 656, 662 (7th Cir.
2016) (to survive summary judgment, a party cannot contradict
previous admissions made during a deposition in a later affidavit
without explaining the basis for the contradiction).
The only plausible inference that can be drawn from the
content of Defendant Millard’s report is that Defendant Millard
arrived after chemical spray had been used and the altercation
between Plaintiff and his cell mate had ceased. Therefore,
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Defendant Millard could not have been involved in the way Plaintiff
alleges.
On this basis, the Court is inclined to grant summary
judgment in favor of Defendant Millard. Rule 56(f), however,
requires that the Court give the parties a reasonable time to
respond before the Court enters summary judgment. Fed. R. Civ. P.
56(f). Therefore, the parties will be granted 30 days to file a
response to this issue.
Excessive Force Claims
In Eighth Amendment claims for excessive force, the relevant
inquiry is “whether force was applied in a good faith effort to
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.”
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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.
The use of chemical agents on its own does not violate the
Constitution. Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984)
(“The use of mace, tear gas, or other chemical agent of the like
nature when reasonably necessary to prevent riots or escape or
subdue recalcitrant prisoners does not constitute cruel and
unusual punishment.”). Constitutional liability attaches only when
prison officials use chemical agents “in quantities greater than
necessary or for the sole purpose of punishment or the infliction of
pain.” Id.
The parties agree that chemical agent was used during the
altercation in Plaintiff’s cell, and that the prison wing was
evacuated after chemical spray had spread throughout the area.
See, e.g., (Doc. 46-2 at 6, ¶ 7) (stating wing was evacuated because
industrial fans were circulating chemical agent spray). Defendants
Goad and Morrow assert that the chemical spray was disbursed
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over the heads of Plaintiff and the other inmate in several bursts
lasting a couple of seconds each.
Plaintiff asserts that the chemical spray was sprayed directly
in his face while he begged for help. Several affidavits from other
inmates Plaintiff provided in response to the Defendants’ motion for
summary judgment state that the use of chemical spray was both
unnecessary and excessive. Resolution of this dispute requires
credibility determinations the Court cannot make at this stage in
the proceedings. Therefore, Defendants’ motion for summary
judgment on Plaintiff’s excessive force claims is denied.
IT IS THEREFORE ORDERED:
1) Plaintiff’s Motion to Strike [48] is DENIED.
2) Defendants’ Motion for Summary Judgment [45] is
DENIED. The parties shall have 30 days from the date of
this Order to file any briefs or responses to the Court’s
stated intention to enter summary judgment on the
claims against Defendant Millard. Clerk is directed to
reinstate Defendant Millard as a defendant. No service
shall issue at this time.
3) This case is referred to Magistrate Judge Schanzle-Haskins
for settlement discussions.
4) A final pretrial conference is scheduled for
February 24, 2017 at 11:00 a.m. . The Plaintiff
shall appear by video conference and the attorney(s) shall
appear in person before the court sitting in Springfield,
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Illinois. The clerk is to issue a writ for the Plaintiff’s
participation in the video conference.
5) The Court will send out proposed jury instructions and
intends to ask the standard voir dire questions published
on the Court’s website (ilcd.uscourts.gov/local rules and
orders/orders and rules by Judge/Judge
Myerscough/General Voir Dire Procedure). By February
17, 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).
6) The Plaintiff and Defendants shall appear in person at
trial. Inmates incarcerated within the Illinois Department
of Corrections (IDOC) who are not parties to this case shall
appear by video conference and IDOC employees who are
not parties may also appear by video conference at trial.
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 name and place of employment for each IDOC
employee to be called as a witness; and, (3) the names and
addresses of any witnesses who are not residents or
employees 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.
7) A jury trial is scheduled for March 14-16, 2017
at 9:00 a.m. at the U.S. Courthouse in Springfield, Illinois.
No writs to issue at this time.

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8) Clerk is directed to notify the chambers of Magistrate
Judge Schanzle-Haskins of the referral for settlement
discussions. Judge Schanzle-Haskins’ chambers will
contact the parties to schedule the settlement conference.
ENTERED:

October 18, 2016

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

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