Southard v. Barr et al
Filing
54
OPINION: Defendant's motion for summary judgment is denied (d/e 48 ). This case is referred to Magistrate Judge Schanzle-Haskins for a settlement conference. If no settlement is reached, final pretrial and trial dates will be set. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 12/6/2018. (GL, ilcd)
E-FILED
Thursday, 06 December, 2018 08:36:50 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
BENNY SOUTHARD,
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Plaintiff,
v.
BRIAN CAREY,
Defendant.
17-CV-3070
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se, claims that Defendant Carey
verbally harassed and used excessive force on Plaintiff on February
24, 2017 while Plaintiff was detained in the Sangamon County Jail.
In particular, Plaintiff alleges that:
[O]n February 24, 2017, he went to the control room to
ask Mrs. Thompson for a grievance form in order to
complain about H pod not having access to the
commissary the day before, while all the other pods were
allowed to go. Plaintiff believes that the H pod is
discriminated against because the H pod houses “LGBT”
detainees and detainees charged with sex offenses.
Instead of giving Plaintiff a grievance form, Mrs.
Thompson went to get Sergeant [Defendant] Carey.
Sergeant Carey then approached Plaintiff, hurled a
barrage of offensive comments at Plaintiff, and
then took Plaintiff out of camera range and assaulted
Plaintiff, causing Plaintiff injuries, including broken teeth.
Page 1 of 4
In addition to the offensive comments, Sergeant Carey
allegedly told Plaintiff that Plaintiff got what he deserved
for filing lawsuits. (Merit Review Opinion, d/e 7.)
Defendant Carey moves for summary judgment, offering
evidence that nothing of the sort occurred. According to the
affidavits submitted by Defendants, Plaintiff became so irate
and disruptive about the lack of commissary that Plaintiff was
escorted off his cell block to be taken to segregation. On the
way, Plaintiff threatened to kill himself so was instead escorted
to an observation cell. The escort, according to Defendants,
was unremarkable. Defendants offer video recordings to
support that assertion, and an investigation found that
Plaintiff’s allegations were unfounded. (3/7/17 Memo, d/e 488, p. 26.) The medical records say nothing about a broken
tooth, and an x-ray of Plaintiff’s back showed no acute injury.
However, Plaintiff contends that Defendant Carey took
Plaintiff to a place without video cameras—“L Block Slider Seg”
on the third floor. This is where Defendant Carey allegedly
“stomped on my right foot twisting my wrists using handcuffs
as a weapon[,] tearing my shoulders out of socket[,] banging my
face off of wall[,] breaking my tooth[.] My back is injured bad.
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My tooth needs fixed.” (Pl.’s voluntary statement to jail
investigators, d/e 51-1 p.1.) Defendants do not address
whether the area described by Plaintiff is out of camera range.
The parties offer starkly different versions of what
happened, and resolving those contradictions requires deciding
whom to believe. The video, while helpful, does not negate the
possibility that Plaintiff is telling the truth when he says the
assault happened off camera. Similarly, the medical records do
not necessarily negate Plaintiff’s claim that he did suffer pain
and injury or that the force was more than de minimis. At this
stage the Court is not permitted to weigh evidence or decide
who is more credible. Accordingly, summary judgment is
denied. Qualified immunity is also denied because Defendant
Carey’s argument depends on accepting his version of events,
which the Court cannot do at this stage.
IT IS ORDERED:
1.
Defendant’s motion for summary judgment is denied
(d/e 48).
Page 3 of 4
2.
This case is referred to Magistrate Judge Schanzle-
Haskins for a settlement conference. If no settlement is
reached, final pretrial and trial dates will be set.
3.
The clerk is directed to notify Magistrate Judge
Schanzle-Haskins of the referral for a settlement conference.
ENTER: December 6, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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