Sheard v. Rock Island County Jail et al
Filing
51
ORDER ON MOTION FOR SUMMARY JUDGMENT - Entered by Judge Sara Darrow on 11/9/2016. Defendant's Motion for Summary Judgment 43 is GRANTED. The Clerk of the Court is directed to enter judgment in favor of Defendant and against Plaintiff. This ca se is terminated, with the parties to bear their own costs. All deadlines, internal settings and pending motions are vacated. 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). If Plaintiff wishes to proceed in forma pauperis on appeal, his motion for leave to appeal in forma pauperis must identify the issues Plaintiff will present on appeal to assist the Court in determining whether th e 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 judg e "can make a responsible 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. (LN, ilcd)
E-FILED
Wednesday, 09 November, 2016 11:23:15 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
VERDELL SHEARD,
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Plaintiff,
v.
JAMES BAILEY,
Defendant.
No.: 13-4114-SLD
ORDER ON MOTION FOR SUMMARY JUDGMENT
Plaintiff, a former prisoner, proceeds pro se on a complaint he filed while
incarcerated at the Vandalia Correctional Center. The action brought pursuant to 42
U.S.C. § 1983, alleges that Defendant James Bailey, an officer at the Rock Island County
Jail, exerted unnecessary excessive force against him. Defendant denied the claim and
has filed a Motion for Summary Judgment, [ECF 43]. Plaintiff filed a one-page
response, requesting that the Court “grant a lie detector” and asserting that “all charges
were dropped per the judge”. He filed an amended response at [ECF 49] to which
Defendant file a combined Response/Motion to Strike [ECF 50]. For the reasons
indicated herein, Defendant’s Motion for Summary Judgment [ECF 43] is GRANTED.
MATERIAL FACTS
On December 26, 2011, Plaintiff was arrested by the Rock Island City Police and
transported to the Rock Island County Jail. Defendant alleges that the police
department had called ahead advising jail personnel that Plaintiff was combative.
Defendant’s superior, Sgt. Lindsey, made the decision to place Plaintiff in a restraint
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chair upon arrival. Defendant Bailey was one of several officers who received
Plaintiff at the jail sally port and escorted him into the building. Defendant denies
using excessive force and asserts that his interactions with Plaintiff were without
harm or incident. He states, further, that to the best of his recollection neither he,
nor the other officers, had tasers on their person at the time.
Defendant provides a video recording taken at the time of the transfer. It
shows Plaintiff being taken out of the police vehicle and handed over to the custody
of jail personnel. There is a marking in the video, which identifies Defendant Bailey.
The video shows Defendant Bailey and other officers escorting Plaintiff down a
hallway to holding cell number two. During this time, Plaintiff makes several
“Ouch” comments as if in pain. He does not, however, state the location of the pain
and the cause is not evident in the video. There is no evidence that jail personnel
did anything to cause this response.
When Plaintiff is placed in a restraint chair, he reacts in considerable pain.
Again, he does not verbalize the location of the pain but he seems to be complaining
about his hands which are cuffed behind his back. Defendant has identified the
officers attending Plaintiff as Officer Vroman, Officer Sandholm and Defendant
Bailey. The officers are in clear view at this time and do not appear to be doing
anything to exacerbate Plaintiff’s pain. The officers are seen restraining Plaintiff’s
legs and then removing the handcuffs. As the officers remove the handcuffs,
Plaintiff screams out. There is no indication that the officers injured Plaintiff or did
anything untoward while removing the handcuffs. It is unclear why Plaintiff
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experienced such pain due to the removal of the handcuffs. Further, Plaintiff
evidenced minimal pain when led into the jail and down the hall with his hands
cuffed behind his back. The video ends with Plaintiff calmly secured in the restraint
chair. All of the officers leave the cell and the camera goes dark.
The Court’s observations of the video reveal that the Defendant and the other
officers were courteous and professional in their treatment of Plaintiff. One female
officer, in fact, appears to sooth Plaintiff by speaking to him kindly, telling him
“everything is OK.” There is no evidence of a taser being used, or of any harm being
inflicted upon Plaintiff.
Defendant Bailey and Sgt. Lindsey have provided affidavits asserting that they
do not believe that they were in possession of tasers on the day in question.
Defendants assert that the video corroborates that the attending officers did not have
tasers. While the Court cannot clearly confirm this, it notes that there is no video
evidence of a taser being used. Defendant alleges, and Plaintiff does not dispute, that
these events took place approximately 1:13 a.m., the morning of December 26, 2011.
The record indicates that charges were not filed for the incident which led to the arrest,
and Plaintiff was released from custody at 3:30 p.m. that same day. [ECF 43-3 pp. 1, 3].
Plaintiff has filed a response [ECF 49], in which he does not dispute the
contents of the video. Interestingly, he does not claim that the video inaccurately
portrays the events or that the officer turned off the video and then harmed him.
Defendant has moved to strike the response as it contains a supporting letter from
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Plaintiff’s mother, not in affidavit form, as well as a series of medical records for
emergency room treatment received two days later, on December 28, 2011.
LEGAL STANDARDS GOVERNING SUMMARY JUDGMENT
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant if entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 7477 U.S. 317, 322-23 (1986).
The moving party has the burden of providing proper documentary evidence to show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 32324 (1986). Once the moving party has met its burden, the opposing party must come
forward with specific evidence, not mere allegations or denials of the pleadings, which
demonstrates that there is a genuine issue for trial. Gracia v. Volvo Europa Truck, N.V.,
112 F.3d 291, 294 (7th Cir. 1997). “[A] party moving for summary judgment can prevail
just by showing that the other party has no evidence on an issue on which that party
has the burden of proof.” Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1183
(7th Cir. 1993).
Accordingly, the non-movant cannot rest on the pleadings alone, but must
designate specific facts in affidavits, depositions, answers to interrogatories or
admissions that establish that there is a genuine triable issue; he “‘must do more than
simply show that there is some metaphysical doubt as to the material fact.’” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986)(quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 818
(7th Cir. 1999). Finally, a scintilla of evidence in support of the non-movant’s position is
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not sufficient to oppose successfully a summary judgment motion; “there must be
evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477
U.S. at 250.
ANALYSIS
To sustain an Eighth Amendment of excessive force the Plaintiff must show that
officials used force “maliciously and sadistically for the very purpose of causing harm,”
or, with “a knowing willingness that [harm] occur.” Hudson v. McMillian, 503 U.S.1, 6–7
(1992) (internal quotation marks and citation omitted). This is so as prison officials
often make decisions “‘in haste, under pressure, and frequently without the luxury of a
second chance.’” Id. at 6, 7. Generally, excessive force cannot be predicated upon a
showing of de minimis force. DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000).
The video produced by Defendant does not support Plaintiff’s claim that he was
subjected to excessive force. Plaintiff has filed two responses and does not claim, in
either, that video inaccurately portrays the events. Plaintiff claims in his response,
however, that he had burn marks on his face and a fractured nose, apparently as a
result of Defendant’s alleged conduct. Plaintiff has provided an unverified letter from
his mother, asserting that she saw burn marks on Plaintiff’s face after his release from
the jail. [ECF 49 p. 3]. Plaintiff also provides the December 28, 2011, emergency room
records from Trinity Regional Health Systems, in support of his injury claims. [ECF 49
pp. 4-15; 49-1 pp. 1-8].
The Trinity Regional Health Systems records indicate that Plaintiff reported to
the emergency room on December 28, 2011, and gave the history of having been
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injured when the “police kicked the door in.” This, presumably, would be a reference
to the Rock Island Police Department rather than the County jail staff. The medical
records further indicate that Plaintiff had a laceration above his left eye and claimed
that he had been tased in the abdomen at the jail. In his complaint and response to the
Motion for Summary Judgment, however, Plaintiff alleged that he had been tased in
the face, not the abdomen, and did not claim an injury to his eye. Plaintiff also told
hospital personnel that he had sustained a head injury, presumably at the jail, which
caused him to lose consciousness for two hours. The hospital personnel responded by
ordering a CT of the head, CT of the face, and thoracic spine x-rays, the results of which
were all negative.
The history which Plaintiff provided to medical personnel is inconsistent with
the allegations of his complaint. Plaintiff did not plead a head injury, two hour loss of
consciousness, eye laceration, or tasing of the abdomen. Conversely, the injury he
alleged in his complaint, having been tased in the face, is not borne out where he makes
no such claim in the medical records. Furthermore, the records do not identify that
Plaintiff suffered any burns to his face. In addition, the history he gave, at one point at
least, attributes his injuries to the actions of the city police rather than the Defendant
jail officer.
Here, Plaintiff has produced medical records in which he gives a history of injury
inconsistent with the complaint and his response to the summary judgment motion.
Furthermore, the video which he does not controvert, shows, at best, only a de minimis
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use of force. See Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004) (“fairly
comprehensive” video supported finding of no excessive force).
Plaintiff utterly fails to identify a triable issue of fact to support that Defendant
Bailey tased him in the face while he was restrained in a chair. Even though Plaintiff is
the non-moving party, “[w]hen opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.”). Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015) citing Scott v.
Harris, 550 U.S. 372, 380 (2007). Accordingly, Defendant’s Motion for Summary
Judgment [ECF 43], is GRANTED.
IT IS THEREFORE ORDERED:
1) Defendant’s Motion for Summary Judgment [ECF 43] is GRANTED. The Clerk
of the Court is directed to enter judgment in favor of Defendant and against Plaintiff.
This case is terminated, with the parties to bear their own costs. All deadlines, internal
settings and pending motions are vacated.
2) 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).
3) If Plaintiff wishes to proceed in forma pauperis on appeal, his motion for leave
to appeal in forma pauperis must identify the issues 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
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appellant should be given an opportunity to submit a statement of his grounds for
appealing so that the district judge “can make a responsible 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 this 9th day of November, 2016
______ s/Sara Darrow ___________
SARA DARROW
UNITED STATES DISTRICT JUDGE
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