Robinson v. Pfister et al

Filing 73

OPINION entered by Judge Sue E. Myerscough on 7/6/2017. Plaintiff's motions for counsel are denied, d/e's 69 and 71 . Defendant Pfister's motion for summary judgment is granted, d/e 63 . Defendant Pfister is terminated. The sol e remaining claim is Plaintiff's excessive force claim against Defendants Tovrea, Skeens and Blackard. The case is referred to the Magistrate Judge to conduct a settlement conference. If no settlement is reached, a conference will be scheduled to schedule the final pretrial and trial dates. (MAS, ilcd)

E-FILED

Thursday, 06 July, 2017 09:06:55 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KEVIN DEVON ROBINSON,
Plaintiff,
v.
RANDY PFISTER, et al.,
Defendants.

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15-CV-1093

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On January 25, 2017, the Court granted summary judgment
to Defendants on Plaintiff’s failure to protect and procedural due
process claims. (d/e 59.) The Court denied summary judgment on
Plaintiff’s excessive force claim and denied summary judgment with
leave to renew on Plaintiff’s inhumane conditions claim. The Court
assumes familiarity with that order.
Defendant Pfister, the only Defendant on Plaintiff’s inhumane
conditions claim, has renewed his summary judgment motion.
Before addressing that motion, the Court addresses Plaintiff’s
renewed motion for appointed counsel.

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Plaintiff alleges that he is mentally ill and has a learning
disability. The information provided by Defendants (as ordered by
the Court) shows that Plaintiff has an eighth grade reading
comprehension level (d/e 72-1, p. 1) and is taking Prozac for bipolar
and post-traumatic stress disorder (d/e 60). This information does
not support Plaintiff’s claim that he is too mentally ill and lowfunctioning to proceed pro se, particularly because his claims do
not appear complex. Plaintiff’s pleadings have adequately conveyed
his positions, and he can testify personally to the excessive force he
experienced and the injuries he suffered. Additionally, Plaintiff has
some federal litigation experience. Robinson v. Cook County Jail,
12-cv-7266 (N.D. Ill.); Robinson v. Dart, 09-cv-2435 (N.D. Ill);
Robinson v. Farrell, 12-cv-1501 (N.D. Ill.); Robinson v. Parker, 11cv-3262 (N.D. Ill). The Court remains of the opinion that Plaintiff is
competent to proceed pro se in light of the straightforward nature of
his claims. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
Moving on to Defendant Pfister’s renewed summary judgment
motion, the Court agrees with Defendant Pfister that there is no
evidence to show that he personally knew about the conditions in
Plaintiff’s cells. Plaintiff contends that on September 30, 2014, he
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was placed in a cell for several hours which was full of feces and
broken plumbing and then moved to a cell with “piss on the floor,
feces in the toilet, and the cell was completely a mess.” (Def.
Pfister’s Undisp. Facts 7-8.) Plaintiff’s cell was cleaned the next
day. (Compl. p. 7.)
As the Court explained in the prior summary judgment order,
the Warden is not liable for the constitutional violations of his
subordinates solely because the Warden is in charge. Kuhn v.
Goodlow, 678 F.3d 552, 556 (7th Cir. 2012)( "'An individual cannot
be held liable in a § 1983 action unless he caused or participated in
an alleged constitutional deprivation.'")(quoted cite omitted); Chavez
v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)(no
respondeat superior liability under § 1983). The Court denied
summary judgment on this claim the first time because Defendant
Pfister had not submitted an affidavit and because copies of the
purported grievances Plaintiff filed about the cell conditions were
not in the record.
Defendant Pfister has now filed his affidavit. He avers that he
had no personal knowledge of Plaintiff’s cell conditions and that he
did not review Plaintiff’s purported emergency grievance because he
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had delegated the review of emergency grievances to his designee,
Marcia Ramirez, during the relevant time period. (Pfister Aff. ¶¶
304.) Defendant Pfister attaches the one emergency grievance that
Pfister maintains is in Plaintiff’s records, but that grievance
discusses primarily Plaintiff’s discipline, not the conditions of his
cell.
Plaintiff argues that Defendant Pfister would have known
about the cell conditions from Defendant Pfister’s weekly rounds,
but Plaintiff has no evidence that Defendant Pfister made those
rounds on the day in question or otherwise witnessed the cell
conditions when Plaintiff was in the cell. Plaintiff’s theory of
liability against Defendant Pfister is not based on Pfister’s personal
observation of the cell conditions but on Defendant Pfister’s position
as the “boss” and Defendant Pfister’s purported failure to respond
to Plaintiff’s grievances. (Pl.’s Dep. 93-94, 104.)
Plaintiff maintains that he filed an emergency grievance about
the condition of his cell, but he offers no copy of the grievance nor
any other details about when he submitted this grievance and what
the grievance stated. Plaintiff admits that he does not know if
Defendant Pfister received this purported emergency grievance
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about the cell conditions. (Pl.’s Dep. 105.) A grievance filed in late
October 2014 like those attached to Plaintiff’s complaint would not
have put Defendant Pfister on notice of the problem in time to fix
the problem. The cell was cleaned the day after Plaintiff was placed
in the cell on September 30, 2014. Defendant Pfister cannot be
held liable for a problem which was fixed before Pfister learned of
the problem.
Plaintiff also contends that Defendant Pfister cannot delegate
the responsibility for reviewing emergency grievances. Plaintiff is
incorrect. 20 Ill.Admin.Code 504.805(a) allows delegation unless a
subpart “specifically states that the . . . Chief Administrative Officer
shall personally perform the duties.” The procedures for emergency
grievances do not specifically state that the Warden must personally
review those grievances. 20 Ill.Admin.Code 504.840. In any event,
even if Defendant Pfister was not permitted to delegate the review of
emergency grievances, this case is not about a violation of the
grievance procedures. Plaintiff needs evidence that Defendant
Pfister knew that Plaintiff was in a filthy cell and that Defendant
Pfister consciously decided to take no action. There is no such
evidence in the record.
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IT IS THEREFORE ORDERED:
(1) Plaintiff’s motions for counsel are denied (d/e’s 69,
71).
(2) Defendant Pfister’s motion for summary judgment is
granted (d/e 63). Defendant Pfister is terminated. The sole
remaining claim is Plaintiff’s excessive force claim against
Defendants Tovrea, Skeens, and Blackard.
(3) This case is referred to the Magistrate Judge to
conduct a settlement conference. If no settlement is reached,
a conference will be scheduled to schedule the final pretrial
and trial dates.
(4) The clerk is directed to notify the Magistrate Judge of
the referral of this case for a settlement conference.

ENTERED: July 6, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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