Carpenter v. Scott et al

Filing 248

SUMMARY JUDGMENT OPINION: Plaintiff's Motions 223 230 238 242 are GRANTED. Plaintiff's Motions 216 226 229 231 232 235 240 241 243 247 are DENIED. Defendants' Motion for Telephone Status Conference 220 is DENIED. Defe ndants' Motion for Extension of Time 233 is GRANTED. Defendants' Motion for Summary Judgment 186 is GRANTED. The clerk of the court is directed to enter judgment in favor of Defendants and against Plaintiff. All pending motions not ad dressed below are denied as moot, and this case is terminated, with the parties to bear their own costs. 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 9/26/2017. (MJC, ilcd)

E-FILED

Tuesday, 26 September, 2017 12:53:26 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERMAINE D. CARPENTER,
Plaintiff,
v.
GREGG SCOTT, et al.
Defendants.

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14-3047

SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently civilly committed at
Rushville Treatment and Detention Center, brought the present
lawsuit pursuant to 42 U.S.C. § 1983 alleging failure to protect
from harm and retaliation. The matter comes before this Court for
ruling on the Defendants’ Motion for Summary Judgment. (Doc.
186). The motion is granted.
PRELIMINARY MATTERS
Plaintiff’s Motions Regarding Witness Affidavits
(Docs. 229, 232, 235, 242)
Plaintiff filed a Motion (Doc. 229) seeking dismissal of
Defendants’ motion for summary judgment on the basis that he was
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unable to obtain affidavits from his witnesses. The witnesses,
according to Plaintiff, can provide attestations consistent with his
testimony regarding statements made to Defendant Lay immediately
prior to the January 2014 attack described in the facts below.
Plaintiff states he has been unable to obtain affidavits because the
witnesses have either been released from the facility or fear
retaliation from TDF staff.
Plaintiff later filed a Motion to Supplement his response to
Defendants’ motion for summary judgment (Doc. 242) to include an
affidavit from one of the witnesses (Terry Johnson). The statements
made in the affidavit are consistent with the testimony Plaintiff
anticipates from the other witnesses from whom he was unable to
obtain an affidavit. As discussed below, the Court takes statements
made in the affidavit as true for purposes of ruling on Defendants’
motion for summary judgment. The failure to provide affidavits
from all the witnesses does not adversely affect Plaintiff at this stage
of the proceedings.
Accordingly, Plaintiff’s Motion to Supplement (Doc. 242) is
granted and the Court discusses this evidence below. Plaintiff’s
Motion to Dismiss (Doc. 229) is denied. Plaintiff’s Motions for Order
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(Docs. 232, 235) seeking an order directing TDF staff to provide
notary services to Terry Johnson is denied as moot with the filing of
Mr. Johnson’s affidavit.
Motions Related to Video Evidence (Docs. 216, 231, 240)
Plaintiff filed several motions seeking sanctions for the
destruction of video evidence in this case. (Docs. 216, 231, 240).
As noted in the Court’s previous orders, two videos of the January
2014 attack were preserved and presented to the Court. The
parties do not dispute that other potentially relevant video footage
once existed, but that it was not retained in this case.
Plaintiff made several requests for preservation of videos of the
incident through the TDF grievance process. See (Doc. 216 at 11);
(Doc. 216-1 at 2, 6). Defendants, in their response, provided an
affidavit from Chris Clayton, the Security Director at Rushville,
stating that Rushville has limited electronic storage to retain all
videos and that “[t]here were other views from a variety of locations
in the facility from January 13, 2014 which were not retained
because the footage from other locations did not show any of the
incident between residents Carpenter and [Resident C] occurring.”
(Doc. 221-1 at 3, ¶ 8). Clayton also states that “[b]ased on my
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review of the footage maintained in this case as well as my
knowledge of the surveillance of the TDF, video from [the locations
Plaintiff now requests] would not have included the altercation
between [the two residents].” Id. ¶ 9.
Sanctions for spoliation of evidence are appropriate only where
the evidence was destroyed for purposes of hiding adverse
information. See Trask-Morton v. Motel 6 Oper. L.P., 534 F.3d 672,
681 (7th Cir. 2008); see also Mathis v. John Morden Buick, Inc.,
136 F.3d 1153, 1155 (7th Cir. 1998) (That the documents were
destroyed intentionally no one can doubt, but bad faith means
destruction for the purpose of hiding adverse information.).
Furthermore, courts have found a spoliation sanction to be proper
only where a party has a duty to preserve evidence because it knew,
or should have known, that litigation was imminent. Trask-Morton,
534 F.3d at 681.
Defendants provided an affidavit stating that they do not have
the resources to retain all video at the facility, and, upon review of
the footage, Defendants argue that the January 2014 attack was
not recorded on videos other than the two already produced. In
addition, Plaintiff has not shown what adverse evidence would have
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been obtained on the videos in question. The parties do not dispute
that Defendant Lay handcuffed Plaintiff and escorted him down the
hallway. The only disputed facts are those related to the
conversation between Plaintiff and Defendant Lay when Defendant
Lay went to retrieve Plaintiff. Neither party argues that the video
would have recorded the audio of that interaction, and the videos
provided to the Court do not have sound. Therefore, the Court
finds that Plaintiff has not made the requisite showing to warrant
sanctions for the spoliation of evidence. Plaintiff’s motions (Docs.
216, 231, 240) are denied.
Plaintiff’s Motion to Reopen Discovery (Doc. 243)
Plaintiff filed a Motion to Reopen Discovery. (Doc. 243).
Plaintiff requests that discovery be reopened to allow him to
ascertain exactly how many TDF residents heard Resident C
threaten to harm Plaintiff. A district court has considerable
discretion in determining whether or not to reopen discovery. Flint
v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015) (noting that
discovery must have an endpoint and “district courts are entitled
to—indeed they must—enforce deadlines.”).

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As discussed below, the Court assumes that Resident C made
the threat for purposes of ruling on the Defendants’ motion for
summary judgment. Even assuming the threat was made, Plaintiff
cannot prevail as a matter of law. The number of residents that
may have heard Resident C make this threat does not change the
result. Plaintiff’s motion is denied.
Other Motions
Defendants’ Motion for Extension of Time to Reply to Plaintiff’s
Response (Doc. 233) is granted. Defendants have since filed the
appropriate document within the time period requested. No new
deadlines are necessary.
Plaintiff’s Motions to Clarify (Docs. 223, 230, 238) are granted
insofar as they request the Court note that Plaintiff does not intend
to file a dispositive motion, to confirm that Defendants Erghott and
Wear have been dismissed, and to clarify a heading in his response
to Defendants’ motion for summary judgment.
Plaintiff’s Motion for a Special Pretrial Conference (Doc. 241) to
determine whether a potential witness has been harassed by TDF
staff is denied. This issue is not relevant to Plaintiff’s claims.

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Plaintiff’s Motion (Doc. 247) is denied. Plaintiff filed what
appears to be a copy of a TDF policy without an accompanying
motion. The Court is unclear as to what relief Plaintiff seeks.
Defendants’ Motion for a Telephone Status Conference (Doc.
220) is denied as moot. The Court has already ruled upon the
motions for which Defendants sought a hearing.
Plaintiff’s Motion for a Copy (Doc. 226) is denied. If Plaintiff
desires a copy of any document, he must pay the copying fee of 10
cents per page ($0.10/page) up front.
LEGAL STANDARD FOR SUMMARY JUDGMENT
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
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.”
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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 is civilly committed at Rushville Treatment and
Detention Facility (“Rushville” or “TDF”) pursuant to the Illinois
Sexually Violent Persons Commitment Act, 725 Ill. Comp. Stat. §
207/1 et seq. The Court previously granted summary judgment in
favor of Defendants Jumper, Caraway, Lodge, Louck, and Reid
(“Liberty Healthcare defendants”) in its Opinion entered August 23,
2016, and Defendant Scott was dismissed in the Court’s Merit
Review Opinion. See (Docs. 7, 125). Defendants Erghott and Wear
were later dismissed on Plaintiff’s motion. (Doc. 222). The
remaining Defendants are employed in the following capacities:
Defendant Kunkel was the Director of Security; Defendant Winters
was a Security Specialist; Defendant Hankins was the Public
Service Administrator; and Defendants Lay, Clark, and Mayes were
Security Therapy Aides (“STA”).
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Animosity between Plaintiff and another TDF resident
(“Resident C”) developed in December 2013 when they resided in
the same housing pod. According to Plaintiff, the relationship
between them became increasingly contentious because “every time
I walk by he is calling me all type[s] of bitches and hoes and, you
know, talking about me being in group [therapy].” Pl.’s Dep. 17:1820. Resident C would also sweep Plaintiff’s feet with a broom
without saying “excuse me” and would yell while Plaintiff was on
the phone with friends and family. (Doc. 228-4 at 3-4, ¶ 9). On
December 15, 2013, Resident C bumped into Plaintiff, did not say
“excuse me,” and a fight ensued. Id. at 3, ¶ 7.
Security staff observed Plaintiff holding Resident C on the
ground with his arms wrapped around Resident C. Security staff
also observed Plaintiff punching and biting Resident C. This was
the first time he and Resident C had gotten into a physical
altercation. UMF 74, 75. Plaintiff, however, admitted in his
deposition that this was not the first time he had been the
aggressor in a physical altercation with other residents. Pl.’s Dep.
33:20-23 (“And I got into a fight with a guy named Resident G, and
in the midst of that fight I bit him. I beat him up way worse than
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the fight that me and Resident C had.”). The two residents were
placed on temporary special management status, a more restrictive
status typically reserved for those accused of violating facility rules,
after the fight. UMF 60. TDF staff also placed them in different
housing pods.
According to Plaintiff, Resident C continued to antagonize him
after the December 2013 fight despite the fact that they were
housed in different pods in the Special Management/Fox units.
Plaintiff states in his affidavit that on December 16, 2013, Resident
C “announced ‘I beat that bitch mothafucker [sic] Carpenter’s ass
y’all,” while Resident C was retrieving hygiene materials from his
former room. (Doc. 228-4 at 4, ¶ 15).
On December 24, 2013, another incident occurred. According
to the incident reports, “[Plaintiff] began shouting at [Resident C]
who was on another pod.” (Doc. 76-2 at 7). Defendant Wear heard
Plaintiff yell, “next time don’t go to the police,” while Defendant
Erghott characterized Plaintiff’s shouts as threats. Id.; (Doc. 18710 at 3). Plaintiff ignored commands to stop and he was taken back
to his room for a two-hour cooldown. In the process, Plaintiff called
Defendant Erghott a “bitch” and accused him of retaliation.
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Plaintiff does not dispute that he had a security escort each time he
left his housing pod.
Plaintiff later told the Behavioral Committee on January 3,
2014, that “every time I walk by, [Resident C] curses me out. I tell
him to shut up and stop trying to alert STAs.” (Doc. 228-8 at 2).
Plaintiff summarized the situation as a “verbal back and forth.” Id.
In his affidavit, Plaintiff states that Resident C called him names,
cursed him, and made threats during the relevant time period but
Plaintiff does not identify what those threats were. (Doc. 228-4 at
7, ¶ 24) (“[Resident C] began to curse me and make threats stating
that I was a bitch and couldn’t fight because I had to bite him, all I
said to [Resident C] in response was to leave me alone and stop
fronting in front of the police.”); id. ¶ 25 (“[Resident C] began to
laugh through the door and make fun of me being sent back to the
wing.”).
Resident C attacked Plaintiff on January 13, 2014. At the
time, Defendant Lay was escorting Plaintiff through the Special
Management/Fox unit foyer. Plaintiff was in handcuffs, while
Resident C was unrestrained and in the foyer to complete his
assigned work task. Videos provided to the Court show that
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Defendant Lay was escorting Plaintiff through the foyer when
Resident C attacked Plaintiff. The video shows Resident C on top of
Plaintiff attempting to strike him. Security staff separated the two
inmates and Plaintiff received prompt medical attention.
Terry Johnson, one of Plaintiff’s witnesses, stated in an
affidavit that shortly before the incident occurred, Defendant Lay
told Resident C to complete his work task, and Resident C yelled
out to Defendant Lay that if he “brought that punk ass bitch
Carpenter out here, [Resident C would] beat [Plaintiff’s] ass.” (Doc.
242-1 at 3). The affidavit also states that Plaintiff informed
Defendant Lay of his safety concerns, and, had Defendant Lay
ordered Resident C to stop attacking Plaintiff, Resident C “would
have done what Lay told him…immediately as he always does.” Id.
at 4.
Defendant Lay states in his affidavit that he did not observe
Resident C in the foyer when Plaintiff mentioned him. (Doc. 187-5
at 2). Defendant Lay admitted in his response to interrogatories
that he was aware of the prior fight between Plaintiff and Resident C
at that time. (Doc. 228-19 at 2). Once the attack happened,
Defendant Lay states he immediately radioed for help and that he
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did not attempt to break up the two residents because he did not
feel it was safe to do so alone. (Doc. 187-5 at 2, ¶ 13).
The parties agree that Defendants Clark, Winters, Kunkel, and
Mayes were not present during the altercations between Plaintiff
and Resident C, nor were they involved with Plaintiff’s specific
housing assignments or escorts during the relevant time frame.
UMF 69.
ANALYSIS
Failure to Protect
Plaintiff was a civil detainee and his rights are derived from
the Due Process Clause of the Fourteenth Amendment rather than
the Eighth Amendment’s proscription against cruel and unusual
punishment. 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) officials acted with “deliberate
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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 [detainee] 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. An official
acts with deliberate indifference if he “knows of and disregards an
excessive risk to [detainee] 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.
Plaintiff was the aggressor in the December 2013 fight, and he
admitted in his deposition to a history of altercations with other
inmates where he acted as the aggressor. Though Plaintiff states in
his affidavit that Resident C threatened him, Plaintiff does not
describe any specific threats he received from Resident C, and his
statements to the Behavioral Committee describe the situation as a
“verbal back and forth.” Plaintiff was also disciplined for his
involvement in the December 24, 2013 incident where STAs
described his comments as threats towards Resident C. In
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addition, Plaintiff submitted several grievances to TDF staff during
the relevant time period. One of the grievances, filed on December
25, 2013, mentions Resident C by name, but the grievance does not
state that Plaintiff feared an attack. Instead, Plaintiff complains
that Resident C was permitted additional privileges. (Doc. 228-10
at 9).
The threat Resident C allegedly made towards Plaintiff shortly
before the January 2014 attack, however, could support a finding
that Plaintiff faced a substantial threat of physical harm.
Defendants argue in a response to Plaintiff’s motion for sanctions
that the Court should not consider Johnson’s affidavit because the
video evidence contradicts his statements. (Doc. 245 at 2-3, ¶ 10).
Defendants argue that a conversation between Resident C and
Defendant Lay was impossible given that Resident C approached
Plaintiff and Defendant Lay from the opposite direction immediately
prior to the attack.
The question, however, is the route Defendant Lay took to
reach the entrance of Plaintiff’s housing pod as Johnson’s affidavit
states the conversation took place prior to Plaintiff leaving his
housing pod. If the hallway through which Defendant Lay escorted
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Plaintiff was the only way to get to Plaintiff’s housing pod, then
Defendant Lay would have had to walk past Resident C to retrieve
Plaintiff, and a conversation was not impossible. If an alternate
route to Plaintiff’s housing pod was available, Defendants have not
presented any evidence of it. The Court cannot conclusively
determine that the statements made in Johnson’s affidavit are
incredible, and the Court must leave that determination to the trier
of fact. Therefore, the Court finds that a triable issue of fact exists
as to whether Plaintiff faced a substantial risk of harm.
Nonetheless, Plaintiff’s claims cannot proceed. Officials “who
actually knew of a substantial risk to [detainee] health or safety
may be found free from liability if they responded reasonably to the
risk, even if the harm ultimately was not averted.” Farmer, 511
U.S. at 844; see also Dale v. Poston, 548 F.3d 563, 569 (7th Cir.
2008) (“[A] prison official does not violate the Eighth Amendment
every time an inmate gets attacked by another inmate.”). The
record discloses that Plaintiff and Resident C were physically
separated from each other for the duration of the relevant time
period, and Plaintiff does not dispute that he had a security escort

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each time he left his housing pod, including on the date of the
attack.
Plaintiff argues that Defendant Lay should have ordered
Resident C into a housing pod while Plaintiff was escorted through
the hallway, but the “mere failure of [an] official to choose the best
course of action does not amount to a constitutional violation.”
Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002). Plaintiff was
not permitted to dictate the security measures taken to protect him,
and providing Plaintiff with a security escort at the time was not
unreasonable given all the circumstances. Plaintiff’s own witness
stated that Resident C was always compliant with TDF staff’s
commands. See (Doc. 242-1 at 3) (Resident C “would have done
what Lay told him…immediately as he always does.”).
In addition, Plaintiff’s affidavit and grievances show that
Plaintiff’s decision to leave the housing pod at that time was
voluntary. (Doc. 216 at 11) (The STA “asked if I wanted to do my
PPG—I politely responded by saying yes….I allowed STA II Lay to
handcuff me and walk me towards the PPG room.”); (Doc. 228-4 at
9, ¶ 34) (stating same). If Plaintiff feared an attack, he could have

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stayed in his housing pod as no inference arises that TDF officials
ordered him to leave.
Moreover, a “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 it clear that such action
would put [the guard] in significant jeopardy.” Guzman v. Sheahan,
495 F.3d 852, 858 (7th Cir. 2007). At the time of the attack,
Defendant Lay was the only STA in the immediate area, he was
outnumbered two-to-one, and the nearest STAs were behind at
least one set of locked doors. In this situation, Defendant Lay was
not required to attempt to break up the fight by himself.
Finally, Defendants Clark, Winters, Kunkel, and Mayes could
not have known about the alleged threat Resident C made given the
short duration of time between the alleged threat and the attack
and Plaintiff’s concession that they were not present at the time.
Plaintiff does not assert a failure-to-protect claim against Defendant
Hankins. Pl.’s Dep. 89:4-8. Accordingly, the Court finds that no
reasonable juror could find that Defendants violated Plaintiff’s
Fourteenth Amendment rights.

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Retaliation
To prevail on a retaliation claim, the Plaintiff must show that
he engaged in activity protected by the First Amendment; he
suffered a deprivation that would likely deter First Amendment
activity in the future; and the First Amendment activity motivated
the decision to take retaliatory action. Bridges v. Gilbert, 557 F.3d
541, 553 (7th Cir. 2009). If Plaintiff can make a prima facie
showing that his protected activity was a “motivating factor” that
caused the alleged harm, then the burden shifts to the defendants
to show that the harm would have occurred anyway, despite the
protected activity. Greene v. Doruff, 660 F.3d 975, 979 (7th Cir.
2011).
The parties do not dispute that Plaintiff has filed numerous
lawsuits while confined at Rushville TDF, or that filing a lawsuit is a
protected First Amendment activity. In its’ previous Opinion, the
Court found that Plaintiff did not suffer a deprivation likely to deter
future First Amendment activity given the number of grievances
and lawsuits he continued to file after this incident.
Furthermore, Plaintiff has not shown that any actions on the
part of TDF officials were motivated by Plaintiff’s First Amendment
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activity. Plaintiff’s main complaint is that TDF officials failed to
eliminate all contact, potential or otherwise, between him and
Resident C. Specifically, Plaintiff states that TDF officials failed to
move one of them to a different housing unit. Plaintiff does not
identify to which housing unit he or Resident C should have been
moved—he argues only that TDF officials could have moved one of
them.
TDF residents who violate the facility’s rules are housed in the
Special Management/Fox unit, where they have fewer privileges
than the residents residing in other housing units. Plaintiff and
Resident C had both been found guilty of violating the rules based
upon their involvement in the December fight. Moving either one of
them to another housing unit that allows a resident to have more
privileges would have effectively negated the consequences for
violating the rules. Therefore, the Court finds that Plaintiff has
failed to show that any action on the part of TDF officials was
motivated by his First Amendment activity.
Accordingly, the Court finds that no reasonable juror could
conclude that any Defendant retaliated against Plaintiff for the
exercise of his First Amendment rights.
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IT IS THEREFORE ORDERED:
1) Plaintiff’s Motions [223][230][238][242] are GRANTED.
2) Plaintiff’s Motions [216][226][229][231][232][235]
[240][241][243][247] are DENIED.
3) Defendants’ Motion for Telephone Status Conference [220]
is DENIED.
4) Defendants’ Motion for Extension of Time [233] is
GRANTED.
5) Defendants’ Motion for Summary Judgment [186] is
GRANTED. The clerk of the court is directed to enter
judgment in favor of Defendants and against Plaintiff. All
pending motions not addressed below are denied as moot,
and this case is terminated, with the parties to bear their
own costs.
6) 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
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).

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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:

September 26, 2017.

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

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