Johnson v. Saddler et al
Filing
122
OPINION entered by Judge Sue E. Myerscough on 8/21/2013. Plaintiff's motion to request counsel is denied, d/e 120 . Defendants' motions for summary judgment are granted, d/e's 99 and 109 . By 9/9/2013, Plaintiff is directed to sh ow cause why he should not be sanctioned pursuant to Federal Rule of Civil Procedure 11 for intentionally making false allegations in his amended complaint concerning the alleged excessive force, serious medical needs, and conditions of confinement. (MAS, ilcd)
E-FILED
Wednesday, 21 August, 2013 12:49:46 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TERRY C. JOHNSON,
Plaintiff,
v.
MICHELLE SADDLER, et al.
Defendants.
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No. 10-cv-3279
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se, is detained in the Rushville
Treatment and Detention Center. He pursues claims arising from
incidents which occurred from July 1, 2010 to July 14, 2010.
Defendants move for summary judgment, relying in part on a DVD
recording which directly contradicts many of Plaintiff's allegations.
Defendants also submit their own affidavits which negate Plaintiff's
claims.
The DVD shows that many of Plaintiff's allegations are
fabrications. Further, Plaintiff does not dispute the truth of
Defendants' affidavits or of Defendants' proposed undisputed facts,
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even though Plaintiff was warned that failure to respond with
admissible evidence would result in the Court accepting those facts
as true.
Accordingly, summary judgment is granted to Defendants.
Further, Plaintiff is directed to show cause why sanctions should
not be imposed against him pursuant to Federal Rule of Civil
Procedure 11 for making false allegations and filing this lawsuit for
the purpose of harassment.
SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment 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). A movant may demonstrate the absence of a material
dispute through specific cites to admissible evidence, or by showing
that the nonmovant “cannot produce admissible evidence to
support the [material] fact.” Fed. R. Civ. P. 56(c)(B). If the movant
clears this hurdle, the nonmovant may not simply rest on his or her
allegations in the complaint, but instead must point to admissible
evidence in the record to show that a genuine dispute exists. Id.;
Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011).
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“In a § 1983 case, the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must
come forward with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.” McAllister v. Price, 615
F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the
light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
material fact exists when a reasonable juror could find for the
nonmovant. Id.
MOTION FOR THE APPOINTMENT OF COUNSEL
Plaintiff asks the Court to attempt to recruit pro bono counsel
to represent him.
The Court may ask an attorney to represent an indigent civil
litigant pro bono, but may not require the attorney to accept the
invitation. 28 U.S.C. § 1915(e)(1). In deciding whether to attempt
to recruit pro bono counsel, the Court asks: 1) has the plaintiff
made reasonable efforts to obtain counsel on his own; and, 2) is the
plaintiff competent to proceed in light of the difficulty of the case.
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Bracey v. Grondin, 712 F.3d 1012, 1016 (7th Cir. 2013)(citing Pruitt
v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). "[T]he district court
must consider both halves of this equation—the difficulty of the
case and the competence of the litigant." Id. Relevant factors
include, but are not limited to, a plaintiff's literacy, education,
litigation experience, communication skills, psychological history,
intellectual capacity, physical and mental health, and ability to
conduct discovery. Id. n. 3 (citing Pruitt, 503 F.3d at 655); Navejar
v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013).
Plaintiff's claims are relatively simple. He personally
experienced all the alleged adverse events set forth in his amended
complaint and had ample time for discovery. He has remained in
the same facility where the events occurred, easing his ability to
investigate and conduct discovery. Plaintiff's professed discovery
difficulties are due to Plaintiff's own delay in pursuing discovery,
and, as discussed below, the fact that no evidence actually exists to
support Plaintiff's claims. Further, Plaintiff is competent to proceed
pro se. According to a review of computerized records,
www.pacer.gov, Plaintiff has significant federal litigation experience.
Plaintiff has filed 14 cases in federal court over the past 16 years
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and also has experience litigating in state court, Johnson v. Illinois
Dept. of Corrections, 368 Ill.App.3d 147 (4th Dist. 2006). Plaintiff's
pleadings in this case and in his other cases demonstrate that
Plaintiff has a significant knowledge of relevant law, civil procedure,
and the facts necessary to support Plaintiff's claims. The Court
therefore concludes that Plaintiff is competent to proceed pro se in
light of the nature of his claims.
ALLEGATIONS
Plaintiff alleges that, on July 2, 2010, officers in riot gear came
to Plaintiff's door and "without warning . . . or any justification
opened the door." (Am. Compl. ¶ 21.) Defendant Kerr allegedly
"savagely punched" Plaintiff while Plaintiff was restrained. Id. ¶¶
22-24. Other Defendants allegedly tried to break Plaintiff's wrist,
fingers, arms, and neck, and tried to smother Plaintiff. Id. ¶¶ 25,
29. Defendant Kerr then allegedly "sexually assaulted Plaintiff by
ramming his helmet into Plaintiff['s]buttocks while he was nude.
Kerr continued to rub [his] helmet in an [sic] sexually aggressive
manner in retaliation on my complaints on him." Id. ¶ 32. The
medical Defendants allegedly failed to examine or treat Plaintiff's
injuries from the purported excessive force.
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Additionally, Plaintiff alleges that he was "placed inside of a
filthy cell, that had blood, food, urine, hair and live and dead
insects, on the floor, walls, sink and toilet, which each def's . . . all
knew." Id. ¶ 34. Plaintiff allegedly had no protection from the
"severe cold cell temperature" and was allegedly denied medical
care, sheets, blankets, clothing, and cleaning supplies. Id. ¶ 36.
DISCUSSION
Plaintiff does not dispute Defendants' proposed facts,
Defendants' affidavits, nor the accuracy of the DVD recording of the
incident (d/e 115, DVD stored in Court's vault). Plaintiff instead
asks to reopen discovery so that he can find out the names of other
residents who might be witnesses and to seek other discovery.
Plaintiff does not adequately explain why he could not discover
the names of potential witnesses during discovery. As the Court
explained in its prior order, Plaintiff had over eight months to
conduct discovery. Federal Rule of Civil Procedure 56(d) is not a
mechanism to conduct discovery that should have been conducted
when discovery was open. Further, Plaintiff already knew of at least
one resident witness—the witness Plaintiff greets near the end of
the DVD recording who is named as resident Carpenter in Plaintiff's
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amended complaint. Plaintiff has not even filed the affidavit of
resident Carpenter in response to the summary judgment motion.
In any event, no affidavit could contradict what the DVD
shows. The Supreme Court held in Scott v. Harris, 550 U.S. 372,
378 (2007) that a properly authenticated video tape trumps a
party's contrary version of events. The issue in Scott concerned a
police car chase. The plaintiff in Scott alleged that an officer had
rammed into the plaintiff's car without justification, rendering the
plaintiff a paraplegic. However, the officer had recorded the chase
on video. Contrary to the plaintiff's averments, the recording
showed that the plaintiff had led officers on a "chase of the most
frightening sort, placing police officers and innocent bystanders
alike at great risk of serious injury." Scott, 550 U.S. at 380. The
Supreme Court held that the video tape controlled over the
plaintiff's own version of events at the summary judgment stage,
reasoning that the plaintiff's story was "so utterly discredited by the
record that no reasonable jury could have believed him." 550 U.S.
at 380-81.
Like Scott, the video recording in this case "utterly discredit[s]"
many of Plaintiff's allegations. In the recording, Plaintiff refuses to
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comply with several orders to cuff up and moves boxes in front of
his door to prevent Defendants' entry. This directly contradicts
Plaintiff's allegation in his amended complaint that Defendants
"without warning . . . or any justification opened the door." (Am.
Compl. ¶ 21). Plaintiff continues his belligerence after Defendants
enter Plaintiff's room, refusing to comply with orders and requiring
Defendants to carry him. Plaintiff threatens to get even with
Defendant Kerr, whom Plaintiff repeatedly accuses of "sucker
punching" Plaintiff.
Defendants, in contrast to Plaintiff, act in a measured, calm,
and professional manner. At no time does the recording show
Defendants trying to break Plaintiff's bones or neck or trying to
prevent Plaintiff from breathing. No injuries are visible on Plaintiff's
face or otherwise. The cell Plaintiff is placed in is not, as plaintiff
alleges in his amended complaint, "filthy" with "blood, food urine,
hair and live and dead insects on the floor, walls, sink and toilet."
Two portions of the recording show the ceiling or floor instead
of Plaintiff, and Plaintiff in part of the video is obscured by the
officers. However, the sound is on throughout. At no point does
Plaintiff behave or sound like he is being subjected to excessive
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force or sexual assault. Each time Plaintiff complains of discomfort,
Defendants respond by trying to reduce Plaintiff's discomfort. For
example, Defendants carry Plaintiff when Plaintiff refuses to walk,
but then put Plaintiff down when Plaintiff says he is ready to walk,
even though Plaintiff again becomes argumentative once
Defendants put Plaintiff down. After Plaintiff is taken to a different
cell, Plaintiff's cloths are removed and a jumpsuit is placed on
Plaintiff. At no point does Plaintiff complain about the size of the
jumpsuit or Defendant Kerr sexually assaulting Plaintiff. Nor is the
jumpsuit humiliatingly small, as Plaintiff alleges in his amended
complaint.
Moreover, the DVD is not the only evidence. Plaintiff does not
dispute any of Defendants' proposed undisputed facts. According
to those facts, which are supported by affidavits, Plaintiff had been
yelling and threatening from his room and had covered his door
window to hinder security from looking inside Plaintiff's room.
(Defs' Undisputed Facts 8-9.) Plaintiff does not dispute that he
"was in a crouched stance and was physically combative and
resisting." (Defs. Undisputed Fact 26.) Plaintiff does not dispute
that he did not complain of any serious medical needs when the
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nurses came to visit him over the following days. Plaintiff also does
not dispute Defendants' evidence which shows that the temperature
in the cell was 72 degrees, not the "severe cold" Plaintiff alleges.
Lastly, Plaintiff does not dispute that he was allowed to leave his
room from July 2, 2010 to July 14, 2010, to visit the dayroom,
library, gym, and outside patio. (Def. Undisputed Fact 66, d/e
110.) In short, Plaintiff offers no evidence to support any of his
claims.
Under Federal Rule of Civil Procedure 11(b), Plaintiff's
signature on his complaint acts as a certification by Plaintiff that
his factual allegations have evidentiary support and that his
complaint was not filed "for any improper purpose, such as to
harass . . . ." In the Court's opinion, Defendants' evidence shows
that Plaintiff's allegations in his amended complaint are intentional
fabrications, made for the purpose of harassing Defendants.
Plaintiff will be directed to show cause why he should not be
sanctioned for intentionally making false allegations in his
complaint.
IT IS THEREFORE ORDERED:
1. Plaintiff's motion to request counsel is denied (d/e 120).
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2. Defendants' motions for summary judgment are granted (d/e's
99, 109).
3. By September 9, 2013, Plaintiff is directed to show cause why
he should not be sanctioned pursuant to Federal Rule of Civil
Procedure 11 for intentionally making false allegations in his
amended complaint concerning the alleged excessive force,
serious medical needs, and conditions of confinement.
4. Judgment will be entered in favor of Defendants after the
Court decides whether sanctions should be assessed against
Plaintiff. Defendants may file a timely motion for costs after
judgment is entered.
5. By August 30, 2013, Defendants are directed to file: 1)
Plaintiff's trust fund ledgers from January 1, 2013 to the
present; and, 2) an affidavit setting forth whether Plaintiff
earns points, and, if so, how many points Plaintiff earned per
month on average from January 1, 2013 to the present.
ENTER:
August 21, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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