Stevens v. Bukowski et al

Filing 51

SUMMARY JUDGMENT OPINION: Plaintiff's Motion for Summary Judgment 22 and Motions 27 46 are DENIED for the reasons stated above. Defendants' Motion for Summary Judgment 28 is GRANTED. The clerk of the court is directed to enter judgm ent in favor of Defendants and against Plaintiff. All pending motions are denied as moot, and this case is terminated, with the parties to bear their own costs. Plaintiff remains responsible for the $350.00 filing fee. If Plaintiff wishes to appeal this judgment, he must file a notice of appeal with this Court within 30 days of the entry of judgment. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 3/20/2017. (MJC, ilcd)

E-FILED

Wednesday, 22 March, 2017 02:46:55 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
)
)
)
Plaintiff,
)
)
v.
)
)
TIMOTHY F. BUKOWSKI, et al.
)
Defendants. )
DEERIC M. STEVENS,

15-2177

SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently incarcerated at
Jerome Combs Detention Center in Kankakee, Illinois, brought the
present lawsuit pursuant to 42 U.S.C. § 1983 alleging Fourteenth
Amendment claims for failure to protect and deliberate indifference
to a serious medical need. The matter comes before this Court for
ruling on the parties’ respective Motions for Summary Judgment.
(Docs. 22, 28).
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.
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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
Plaintiff was incarcerated at Jerome Combs Detention Center
(“JCDC”) in Kankakee, Illinois as a pretrial detainee. Defendants
are employed at the facility in the following capacities: Defendant
Bukowski was the Sheriff; Defendant Downey was the Chief of
Corrections; Defendants Schloendorf and Ball were correctional
sergeants; and Defendants Tutt, Moliga, and Garcia were
correctional officers.
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On December 18, 2013, JCDC officials discovered a
homemade shank in the shower stall of Plaintiff’s housing pod
(known as “Max-A”). For at least the next eight (8) days, a lockdown
ensued. On December 24, 2013, Plaintiff got into a fight with two
other inmates and suffered a broken jaw. No weapons were used.
Plaintiff testified that, prior to the fight, he did not know the fight
was going to happen, he did not fear the inmates with whom he
fought, and he did not file any requests or grievances alerting
officials to any specific threat of harm. UMF 19-20. Plaintiff had no
prior arguments with the other inmates. UMF 18. Plaintiff also
described his prior interactions with one of the inmates as
“friendly.” Pl.’s Dep. 53:21-24.
When the fight occurred, Defendant Tutt was assigned to MaxA, and Defendant Garcia was assigned to E-Pod. They were each
responsible for supervising the inmates and conducting security
checks within their assigned pods. (Doc. 28-4 at 1-2). Defendant
Moliga was assigned as a “rover” responsible for transporting
inmates and assisting in the various pods when circumstances so
required. Defendant Ball was assigned to booking. Id.

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Plaintiff left his cell at approximately 5:38 a.m. UMF 10. In
his deposition, Plaintiff conceded the accuracy of a portion of
Defendant Moliga’s incident report describing the events that
transpired immediately before the altercation ensued. Pl.’s Dep.
86:19-87:18. The incident report reads as follows: “At
approximately [5:35 a.m.,] I noticed a detainee in Max walk down
from the top tier. I then noticed a detainee in cell 2 open his door
and step outside. Both began talking and got into fighting
positions.” (Doc. 28-3 at 24). Plaintiff was the detainee in cell 2.
Pl.’s Dep. 51:16-18.
The fight commenced. Defendant Tutt called an emergency
(“10-10”) over the radio and locked down the pod. A third inmate
refused to close his door, went down the stairs, and joined the fight.
When Defendant Garcia arrived at the pod, he, along with
Defendants Tutt and Moliga, entered the pod to stop the fight
despite a JCDC policy that required them to wait.1 Plaintiff and the

According to Defendant Downey: “It is JCDC policy that if there is an inmate
altercation, correctional officers must wait for back-up officers to outnumber
the inmates involved in the altercation before using physical tactics to interject
themselves into the altercation, and preferably must wait for a taser if one is
available in order to protect the officers, inmates, and the institution.” (Doc.
28-4 at 2, ¶ 10).
1

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two other inmates complied with verbal commands to stop fighting.
The fight lasted approximately 1 minute and 15 seconds. UMF 44.
Defendants submitted a video of the incident. The video
shows Plaintiff and another inmate fighting at approximately 5:39
a.m. The two separated briefly, and the third inmate joined the
fight shortly thereafter. Defendants are seen inside the pod at
approximately 5:40 a.m. Plaintiff testified that the other inmate
started the fight, but that he later admitted his involvement and
received 15 days in segregation. Pl.’s Dep. 60:7-11; (Doc. 28-3 at
19).
After the fight, Plaintiff requested medical care. The parties do
not dispute that Plaintiff received medical treatment at JCDC and at
an outside hospital. Plaintiff, however, disputes the timing of the
treatment as indicated in JCDC logs and the hospital records. The
parties do not dispute that Plaintiff was admitted to the hospital at
10:23 a.m., following a CT scan, x-rays, and physician’s
examination.2 Plaintiff had surgery on his jaw a day later.

Plaintiff argues in his response that the records from St. Mary’s Hospital are
illegible. (Doc. 36 at 10, ¶ 66). The Court acknowledges that the printout is of
poor quality as it relates to Plaintiff’s time of arrival, but the handwritten
notation in the lower left-hand corner indicating that Plaintiff was admitted at
“1023” is clear. (Doc. 28-3 at 10).
2

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ANALYSIS
Heck v. Humphrey
Defendants argue that Plaintiff’s claims are barred pursuant to
Heck v. Humphrey, 512 U.S. 477 (1994). Heck holds that a claim
for damages under §1983 is not cognizable when a successful claim
would necessarily imply the invalidity of a conviction or sentence
that has not previously been terminated in the inmate’s favor. Id.
at 486-87. Heck’s favorable termination requirement “is necessary
to prevent inmates from doing indirectly through damages actions
what they could not do directly by seeking injunctive relief—
challenge the fact or duration of their confinement without
complying with the procedural limitations of the federal habeas
statute.” Nelson v. Campbell, 541 U.S. 637, 647 (2004). If an
inmate challenges the results of a prison disciplinary hearing, Heck
applies if the result of that hearing affects the duration of the
inmate’s confinement (i.e. the revocation of good time credits).
Edwards v. Balisok, 520 U.S. 641, 644-48 (1997).
Plaintiff received 15 days in segregation as a result of the fight.
The record does not disclose, nor do Defendants argue, that the
discipline received affected the duration of Plaintiff’s confinement,
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or that it resulted in additional convictions that have not yet been
overturned.
Instead, Plaintiff’s claims concern actions that occurred prior
to, and after, the fight in question: first, that jail officials housed
him under conditions that posed a substantial threat of harm to his
personal safety; and, next, that they failed to provide adequate
medical care for his resulting injuries. These claims are properly
characterized as challenges to the conditions of confinement. See
Wilson v. Seiter, 501 U.S. 294, 303 (1991) (“[M]edical care a
prisoner receives is just as much a ‘condition’ of his confinement as
…the protection he is afforded against other inmates.”). Where an
inmate challenges only the conditions of his confinement, Heck
does not apply. See Muhammad v. Close, 540 U.S. 749, 754-55
(2004).
Defendants Bukowski and Downey
Defendants Bukowski and Downey were the Sheriff and Chief
of Corrections, respectively. “Section 1983 creates a cause of action
based on personal liability and predicated upon fault; thus, liability
does not attach unless the individual defendant caused or
participated in a constitutional deprivation.” Vance v. Peters, 97
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F.3d 987, 991 (7th Cir. 1996) (citations omitted). A government
official may not be held liable under § 1983 on a theory of
respondeat superior, that is, for the unconstitutional acts of his or
her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). To
be held liable, a government supervisor “must know about the
conduct and facilitate it, approve it, condone it, or turn a blind
eye….” Vance, 97 F.3d at 993 (quoting Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995)).
Plaintiff argues that these Defendants were responsible for
inadequate staffing, manpower, and supervision. Defendants
Bukowski and Downey were not the jail officials who responded to
the fight on December 26, 2013, nor does the record suggest that
they were involved in Plaintiff’s medical treatment or transport to
the hospital.
The only information that would have been readily available to
them prior to the December 26, 2013 fight is that a shank had been
found in Plaintiff’s housing pod, and the pod had been locked down
for eight (8) days, presumably without incident. By Plaintiff’s own
admission, no JCDC official was notified of a problem between
Plaintiff and the other two inmates involved in the fight.
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Therefore, the Court finds that no reasonable juror could
conclude that Defendants Bukowski and Downey violated Plaintiff’s
constitutional rights.
Failure to Protect
Plaintiff was a pretrial detainee at the time of these events.
His rights therefore arise under the Due Process Clause of the
Fourteenth Amendment rather than the Eighth Amendment’s
proscription against cruel and unusual punishment. See Burton v.
Downey, 805 F.3d 776, 784 (7th Cir. 2015) (citing Pittman v. Cnty.
of Madison, 746 F.3d 766, 775 (7th Cir. 2014)). The standards
under the respective amendments are essentially the same. Id.
(citing Smego v. Mitchell, 723 F.3d 752, 756 (7th Cir. 2013)).
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

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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, 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).
Nobody, including Plaintiff, knew that the December 26, 2013
fight was going to happen, nor could JCDC officials ascertain that a
substantial risk of harm existed as it related to Plaintiff. Plaintiff
did not file any requests or grievances stating as much, and an
inference that a homemade shank found in the pod would result in
the type of altercation that occurred is tenuous at best. In fact,
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putting the pod on lockdown and confiscating the shank were
reasonable steps to reduce the risk that the shank’s owner would
act on any animus towards another inmate.
As for the fight, guards are not required to take unreasonable
risks in an attempt to break up a fight between inmates “when the
circumstances make it clear that such action would put [the guard]
in significant jeopardy.” Guzman v. Sheahan, 495 F.3d 852, 858
(7th Cir. 2007). Once the fight started Defendant Tutt immediately
called for backup and attempted to lock the cells of the other
inmates in the pod. When the third inmate prevented his door from
closing and remained able to move about the pod, Defendants Tutt
and Moliga would have been outnumbered had they attempted to
break up the fight at that time.
The video discloses that Plaintiff and the first inmate
separated only for a few seconds before the third person joined the
fight and, thus, no opportunity to separate the two arose. Waiting
for Defendant Garcia’s arrival to at least ensure an equal number of
guards to inmates was not an unreasonable step in response to the
events that transpired. Despite the delay, Defendants were able to
stop the fight after 1 minute and 15 seconds.
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Therefore, the Court finds that no reasonable juror could
conclude that Defendants violated Plaintiff’s constitutional rights.
Medical Care
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. Estelle, 429 U.S.
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)).
Plaintiff argues that Defendants unnecessarily delayed his
access to medical treatment by ignoring the requests he made while
he was housed in a segregation cell after the fight. Plaintiff
contends that he made these requests immediately, while the JCDC
logs indicate that Plaintiff did not request medical treatment until
approximately one (1) hour after the fight. Compare (Doc. 28-3 at
1) (Plaintiff requested medical treatment at 6:50 a.m.), and (Doc.
28-3 at 3) (“[Plaintiff] stated that he was not sure if he need[ed]
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medical help” after the fight), with Pl.’s Dep. 128:19-129:1 (Plaintiff
requested medical treatment immediately after the fight).
Where delay in receiving medical treatment is at issue, a
plaintiff must offer “verifying medical evidence” that the delay,
rather than the underlying condition, caused some degree of harm.
Williams v. Liefer, 491 F.3d 710, 714-15 (7th Cir. 2007); Jackson v.
Pollion, 733 F.3d 786, 790 (7th Cir. 2013) (“No matter how serious a
medical condition is, the sufferer from it cannot prove tortious
misconduct (including misconduct constituting a constitutional
tort) as a result of failure to treat the condition without providing
evidence that the failure caused injury or a serious risk of injury.”).
“That is, a plaintiff must offer medical evidence that tends to
confirm or corroborate a claim that the delay was detrimental.”
Williams, 491 F.3d at 715.
The Court can define a four-to-five hour window beginning
from the time the fight ended until Plaintiff was admitted to the
hospital. During that time, JCDC medical professionals examined
Plaintiff, Plaintiff was transported to the hospital, examined, xrayed, and had a CT scan taken. The only reasonable inference
from these facts is that Plaintiff arrived at the hospital in enough
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time to complete the necessary diagnostic testing before he was
admitted for surgery, though Plaintiff disputes the 7:52 a.m. arrival
timestamp indicated on the medical records.
The difference between the parties’ respective timelines is
approximately one (1) hour. Assuming Plaintiff made the requests
for treatment immediately after the fight as he testified, and JCDC
medical staff responded promptly, Plaintiff would have presumably
been admitted to the hospital one hour earlier. The record,
however, does not support a reasonable inference that any delay on
December 26, 2013 exacerbated Plaintiff’s condition as Plaintiff’s
surgery did not occur until the next day.
Finally, short delays in receiving medical treatment, standing
alone, are not sufficient to show deliberate indifference. See
Burton, 805 F.3d at 785 (two-day delay, on its own, is not sufficient
to show a constitutional violation). Therefore, the Court finds that
no reasonable juror could conclude that the Defendants were
deliberately indifferent.
Plaintiff’s Motions
Plaintiff filed a Motion (Doc. 46) requesting appointment of an
expert to review the video evidence in this case. Plaintiff alleges
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that his copy of the video has been altered in an attempt to
characterize him as the aggressor in the fight. Plaintiff states this is
relevant to Defendants’ argument that Heck v. Humphrey, 512 U.S.
477 (1994) bars his claims. As discussed above, Heck does not bar
Plaintiff’s claims. Therefore, Plaintiff’s motion (Doc. 46) is denied.
Plaintiff also filed a Motion for Summary Judgment (Doc. 22).
In addressing the motion, the Court is required to view the facts in
the light most favorable to the Defendants. Because Plaintiff cannot
prevail even when the facts are construed in his favor, Plaintiff’s
motion is denied. Accordingly, Plaintiff’s Motion (Doc. 27)
requesting a ruling on his Motion for Summary Judgment is denied
as moot.
IT IS THEREFORE ORDERED:
1) Plaintiff’s Motion for Summary Judgment [22] and Motions
[27][46] are DENIED for the reasons stated above.
2) Defendants’ Motion for Summary Judgment [28] is
GRANTED. The clerk of the court is directed to enter
judgment in favor of Defendants and against Plaintiff. All
pending motions are denied as moot, and this case is
terminated, with the parties to bear their own costs.
Plaintiff remains responsible for the $350.00 filing fee.
3) If Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the
entry of judgment. Fed. R. App. P. 4(a)(4). A motion for
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leave to appeal in forma pauperis MUST identify the issues
the Plaintiff will present on appeal to assist the court in
determining whether the appeal is taken in good faith. See
Fed. R. App. P. 24(a)(1)(c); see also Celske v Edwards, 164
F.3d 396, 398 (7th Cir. 1999)(an appellant should be given
an opportunity to submit a statement of his grounds for
appealing so that the district judge “can make a
reasonable assessment of the issue of good faith.”); Walker
v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000)(providing that
a good faith appeal is an appeal that “a reasonable person
could suppose…has some merit” from a legal perspective).
If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee regardless of the outcome of
the appeal.
ENTERED:

March 20, 2017.

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

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