Giwa v. Dart et al

Filing 60

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 7/19/2012:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MUTIU OLAWALE GIWA,
Plaintiff,
v.

Case No. 10 C 8255
Hon. Harry D. Leinenweber

OFFICER TUCKER,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff, Mutiu Olawale Giwa (hereinafter, the “Plaintiff”),
has brought this pro se civil rights action pursuant to 42 U.S.C.
§ 1983.
the

Plaintiff alleges that Defendant Tucker, a lieutenant at

Cook

County

Jail,

violated

subjecting him to excessive force.

his

constitutional

rights

by

More specifically, Plaintiff

alleges that on September 16, 2010, when he was lined up to be
transferred to Cermak Health Services Hospital, Defendant Tucker
refused to loosen his handcuffs when Plaintiff complained that they
were too tight and aggravating the site of a previous gunshot
wound.

Plaintiff also alleges that Tucker pulled him out of line

by the arm and injured his shoulder and arm.
Presently before the Court is Defendant Tucker’s Motion for
Summary Judgment [#43].
granted.

For the reasons herein, the Motion is

I.

STANDARD

“The court shall grant summary judgment if the movant shows
that there is no genuine issue as to any material fact and the
movant is entitled to a judgment as a matter of law.”

FED . R. CIV .

P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir.
2006). In determining whether factual issues exist, the court must
view all the evidence and draw all reasonable inferences in the
light

most

favorable

to

the

non-moving

party.

Weber

v.

Universities Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir.
2010). The court does not “judge the credibility of the witnesses,
evaluate the weight of the evidence, or determine the truth of the
matter.

The only question is whether there is a genuine issue of

fact.”

Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir.

2009), citing Anderson v. Liberty Lobby, 477 U.S. 242, 249-50
(1986).
However, Rule 56 “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.”
at 322.

Celotex, 477 U.S.

“Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is
no genuine issue for trial.”

Sarver v. Experian Information

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Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted).
“A

genuine

issue

of material

fact

arises only

if sufficient

evidence favoring the nonmoving party exists to permit a jury to
return

a

verdict

for

that

party.”

Egonmwan

v.

Cook

County

Sheriff’s Dept., 602 F.3d 845, 849 (7th Cir. 2010), quoting Faas v.
Sears, Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008).
A.
Defendant

Local Rule 56.1 (N.D. Ill.)

filed statements

of

uncontested

pursuant to Local Rule 56.1 (N.D. Ill.).

material

facts

Together with his Motion

for Summary Judgment, Defendant included a “Notice to Pro Se
Litigant Opposing Motion for Summary Judgment” [#45-1], as required
by Local Rule 56.2. That notice clearly explained the requirements
of the Local Rules and warned Plaintiff that a party’s failure to
controvert the facts as set forth in the moving party’s statement
results in those facts being deemed admitted.
Lamz, 321 F.3d 680, 683 (7th

See, e.g., Smith v.

Cir. 2003).

Local Rule 56.1(b) requires a party opposing a motion for
summary judgment to file:
(3)

a concise response to the movant’s statement that
shall contain
(A) a response to each numbered paragraph in the
moving party’s statement, including, in the case of
any disagreement, specific references to the
affidavits, parts of the record, and other
supporting materials relied upon, and
(B) a statement, consisting of short numbered
paragraphs, of any additional facts that
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require denial of summary judgment, including
references to the affidavits, parts of the
record, and other supporting materials relied
upon.
L.R. 56.1(b).
The district court may rigorously enforce compliance with
Local Rule 56.1.

See, e.g., Stevo v. Frasor, 662 F.3d 880, 886-87

(7th Cir. 2011) (“Because of the high volume of summary judgment
motions and the benefits of clear presentation of relevant evidence
and law, we have repeatedly held that district judges are entitled
to insist on strict compliance with local rules designed to promote
the clarity of summary judgment filings”) (citing Ammons v. Aramark
Uniform Serv., Inc., 368 F.3d 809, 817 (7th Cir. 2004).

Although

pro se plaintiffs are entitled to lenient standards, compliance
with procedural rules is required. Cady v. Sheahan, 467 F.3d 1057,
1061 (7th Cir. 2006); see also Koszola v. Bd. of Educ. of the City
of Chicago, 385 F.3d 1104, 1108 (7th Cir. 2004).

“We have . . .

repeatedly held that a district court is entitled to expect strict
compliance with Rule 56.1.”

Cichon v. Exelon Generation Co., 401

F.3d 803, 809 (7th Cir. 2005).
Despite the admonitions stated above, Plaintiff failed to file
a proper response to Defendant Tucker’s Statements of Uncontested
Facts. While he submitted a response to each numbered statement of
fact,

he

admits

the

vast

majority

of

Defendant’s

proposed

statements of fact, and for those he denies, he cites to no

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specific evidence
required.

in

the

record

that

supports

his

claims

as

Dent v. Bestfoods, (Case No. 02 C 7922) 2003 WL

22025008, at *1 n.1 (N.D. Ill. August 27, 2003) (St. Eve, J.);
Malec

v.

Sanford,

191

F.R.D.

581,

585

(N.D.

Ill.

2000).

Consequently, Plaintiff’s responses to Defendant Tucker’s proposed
undisputed facts are not in compliance with Rule 56.1(b)(3)(A).
A motion for summary judgment “requires the responding party
to come forward with the evidence that it has--it is the ‘put up or
shut up’ moment in a lawsuit.”

Eberts v. Goderstad, 569 F.3d 757,

767 (7th Cir. 2009) (citations omitted).

As Plaintiff has failed

to do so, Defendant Tucker’s proposed undisputed facts are deemed
admitted.

See Chelios v. Heavener, 520 F.3d 678, 687 (7th Cir.

2008); L.R. 56.1(b)(3)(B).
Because Plaintiff is proceeding pro se, the Court will grant
him

considerable

leeway

and

take

into

account

the

factual

assertions he makes in his summary judgment materials. In order to
meet its obligation to view the record in the light most favorable
to the non-movant, the Court has supplemented the Defendant’s
statement of facts with additional facts Plaintiff asserted during
his deposition and in his opposing brief.

However, the Court will

entertain Plaintiff’s factual statements only insofar as he could
properly testify about the matters asserted. See FED . R. EVID . 602.
II.

FACTS AND BACKGROUND

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Mutiu Olawale Giwa (“Plaintiff”), was admitted to the Cook
County Department of Corrections (the “CCDOC”) as a pre-trial
detainee on August 26, 2010, and currently remains there as a
pre-trial detainee. (Def. Ex. A at ¶ I).

Defendant Earl Tucker is

currently employed by the Cook County Sheriff’s Office and holds
the rank of Lieutenant.

Defendant Tucker was employed in this

capacity and held the same rank on the date of September 16, 2010,
the date of the alleged incident. (Def. Ex. B at ¶ 1).
Plaintiff was housed within Division 1, Tier G4, of the CCDOC,
which is a maximum-security facility for male detainees.
residents

of Division

1 are

typically deemed

to

be

The

violent,

dangerous, and/or habitual criminals. (Def. Ex. B at ¶ 2), (Def.
Ex. C at 13).

Plaintiff was scheduled to go to Cermak Health

Services Hospital (“Cermak”) for medical treatment pursuant to a
medical request made by Plaintiff.

(Def. Ex. A at ¶ IV).

is a less secure facility than Division 1 of CCDOC.
¶ 5).

Cermak

(Def. Ex. B at

During the morning hours of September 16, 2010, Plaintiff

was one of approximately 15 detainees who were brought to the
basement holding area of Division 1 for transport to Cermak.

At

the time Plaintiff was brought to that holding area, he was not
handcuffed. (Def. Ex. B at ¶ 5 and see Def. Ex. C at 16).
Defendant Tucker was assigned to the basement holding area of
Division 1, to prepare detainees for transport to Cermak in an
orderly, secure manner.

His duties as a correctional lieutenant

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included

the

maintenance,

preservation

and

restoration

of

institutional order and security at all times, including during
this transport process. (Def. Ex. B at ¶¶ 1, 3).

Upon arrival in

that holding area, all detainees were handcuffed in front and
placed in single file, parallel lines facing the same direction.
The detainees were temporarily handcuffed in order to maintain
institutional order within CCDOC and stem security concerns as
maximum-security detainees were transported to Cermak, a less
secure facility.
limited

to,

disturbance,

Such security concerns include, but are not

keeping
or

the

fighting

detainee
with

other

from

fleeing,

detainees

or

causing
the

a

deputy

sheriffs. (Def. Ex. B at ¶¶ 6, 8).
Once all detainees were handcuffed, they were to be walked by
the approximately 3 to 4 deputy sheriffs on duty, to Cermak. (Def.
Ex. B at ¶ 7).

The walk from the basement holding area of

Division 1 to Cermak takes approximately 30 to 45 minutes, and goes
through other detention facilities within the CCDOC, via a winding
basement tunnel.

(Def. Ex. B at ¶ 7).

Upon Plaintiff’s arrival in

that holding area, Plaintiff was handcuffed in front of his person
by some unknown deputy sheriff, in the exact same manner as the
other 14 detainees being prepared for transport to Cermak.
Ex. B at ¶ 11).

(Def.

At the time Plaintiff was handcuffed, he did not

have a doctor’s note or medical permit requiring that he not be

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handcuffed, or be accommodated to be handcuffed in any special way.
(Def. Ex. B at ¶ 11).
After being handcuffed, Plaintiff stepped out of line, and
faced outside of the line rather than forward, as all the other
detainees were doing and as he had been instructed to do.
Ex. B at ¶ 13).

(Def.

Defendant Tucker told Plaintiff to get back into

the line and face forward. (Def. Ex. B at ¶ 13).

Plaintiff refused

to listen to Defendant Tucker, ignoring his orders, and maintaining
his position outside of the line, facing outward rather than
forward.

(Def. Ex. B at ¶ 13).

Plaintiff’s

behavior

interfered

with

Defendant

Tucker’s

ability to execute his penological duties, including conducting an
orderly transfer of detainees from Division 1 to Cermak.
Ex. B at ¶ 14).

(Def.

Plaintiff was the only detainee engaged in this

disruptive behavior at the time, and his conduct posed a serious
security risk, as it threatened to cause incitement of the other
detainees present, and endangered Plaintiff, the other detainees,
as well as Defendant Tucker and other deputy sheriffs.
at ¶ 15, and see Def. Ex. C at p. 23).
handcuffed,

removing

himself

from

the

(Def. Ex. B

Only after being

line,

and

disobeying

Defendant Tucker’s orders to get back into line, did Plaintiff
complain about his handcuffs being too tight.
p. 20).

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(Def.

Ex. C at

When Plaintiff prolonged his insubordination by refusing to
acknowledge

Defendant

Tucker’s

instructions,

Defendant

Tucker

approached Plaintiff, and attempted to turn him into the Cermak
line, single file and facing the same direction as the other
detainees. (Def. Ex. B at ¶ 13).
Plaintiff actively resisted Defendant Tucker’s attempts in
that he “held [his] ground,” telling Defendant Tucker that he would
not listen to him, not allowing himself to be turned, and pulling
his arm away. (Def. Ex. C at p. 26).

Subsequent to Plaintiff’s

resistance and refusal to obey orders, Defendant Tucker removed
Plaintiff from the Cermak line and removed his handcuffs.

(Def.

Ex. A at ¶ IV).
Plaintiff was then re-handcuffed, this time by Defendant
Tucker, and placed in the holding cell within the basement of
Division 1 while the remaining 14 detainees were transported to
Cermak. (Def. Ex. B at ¶ 27).

Plaintiff waited in the holding cell

for approximately one hour to calm down before being transported to
Cermak to seek any medical treatment. (Def. Ex. A at ¶ IV).
When Plaintiff was transported to Cermak, his handcuffs were
loose, and the pain and numbness had subsided.
pp. 31 and 33).

(Def. Ex. C at

After Plaintiff suffered his gunshot wound, he

could straighten out his arm a little bit, and he testified in
deposition that his range of motion after the incident underlying
this suit is similar.

(Def. Ex. C at p. 35).

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Plaintiff suffered

numbness in his hand and arm after he was shot.
37).

(Id. at pp. 36-

Plaintiff had no injury after he was cuffed on September 16,

2010, that he did not have as a result of the gunshot wound.
at p. 42).

(Id.

Any pain Plaintiff felt went away because of the

treatment (ibuprofen) he received at Cermak.

(Id. at p. 37).

III. ANALYSIS
Defendant Tucker argues that the evidence demonstrates that
his use of handcuffs was reasonable that Plaintiff suffered no
serious physical injury, and that he is entitled to qualified
immunity

for

his

refusal

to

loosen

Plaintiff’s

handcuffs

on

September 16, 2010.
Initially, the Court notes that Defendant Tucker argues that
the Fourth Amendment use of force on arrest standard applies in
this case.

However, his reliance on Fourth Amendment case law

relating to the use of force in effecting an arrest is misplaced.
In the jail context, the use of force qualifies as “excessive” for
the purpose

of

the

Fourteenth

Amendment

when

“‘unnecessary and wanton infliction of pain.’”

it

entails

the

Rice ex rel. Rice

v. Correctional Medical Services, 675 F.3d 650, 667 (7th Cir. 2012)
(quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

When

jailers are accused of using excessive force, the core inquiry is
“whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.”

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Hudson v. McMillian, 503 U.S. 1, 7 (1992); Santiago v. Walls, 599
F.3d 749, 757 (7th Cir. 2010).
Factors relevant to that inquiry include whether the jail
officials perceived a threat to their safety and the safety of
other inmates, whether there was a genuine need for the application
of force, whether the force used was commensurate with the need for
force, the extent of any injury inflicted, and whatever efforts the
officers made to temper the severity of the force they used.

Rice,

675 F.3d at 668; Whitley, 475 U.S. at 321; see also Forrest v.
Prine, 620 F.3d 739, 744–45 (7th Cir. 2010); Lewis v. Downey, 581
F.3d 467, 475–77 (7th Cir. 2009).
Whether Plaintiff’s claims are viewed under excessive force or
deliberate indifference to a serious physical condition analysis,
both approaches result in the same question – whether the Defendant
knew that his refusal to loosen Plaintiff’s handcuffs resulted in
unnecessary and wanton infliction of pain and physical injury to
Plaintiff.

See Santiago, 599 F.3d at 757 (to establish a claim of

excessive force, a prisoner “must have evidence that ‘will support
a reliable inference of wantonness in the infliction of pain’”)
(citation omitted); Munson v. Gaetz, 673 F.3d 630, 637 (7th Cir.
2012)(“deliberate

indifference

to

serious

medical

needs

of

prisoners constitutes the ‘unnecessary and wanton infliction of
pain’”)(citation omitted).

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It is clear from the record that the force employed by
Defendant Tucker was reasonable, and not intended to wantonly or
unnecessarily

inflict

pain.

Defendant

Tucker

did

not

cuff

Plaintiff, but was one of the officers charged with moving a large
group of detainees from a high security area of the jail to Cermak
Health Services, a lower security area of the jail.
unclear

from

the

record

whether

Defendant

While it is

Tucker

knew

of

Plaintiff’s previous gunshot injury (Tucker insists he did not
know, and Plaintiff testified in deposition that he told Tucker of
the injury (see Plaintiff’s dep., p. 22)), it is undisputed that
Defendant Tucker’s behavior during the incident was reasonable.
Defendant Tucker was charged with moving fifteen detainees to
Cermak.

The detainees were all cuffed in front and the trip took

thirty-five to forty minutes through tunnels that wind under the
Cook County Jail.

Plaintiff turned out, stepped out of line, and

refused to comply with orders given by Defendant Tucker and others,
designed to restore order so the detainees could complete their
trip to Cermak.

Defendant Tucker was concerned that Plaintiff’s

behavior could incite other detainees to refuse to follow orders,
further disrupting order, and preventing Defendant Tucker from
completing his duties.
When he attempted to turn Plaintiff back into line by placing
his hand on Plaintiff’s arm to turn him back into line, Plaintiff
refused, actively resisting and pulling his arm away.

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In his

deposition,

Plaintiff

testified

(Plaintiff’s dep. p. 26).

that

he

held

his

ground.

Because Plaintiff refused to comply,

Defendant Tucker removed him from line and placed him in a holding
cell, to cool off.

Defendant Tucker then removed Plaintiff’s

handcuffs, placed him in a holding cell, re-cuffed him, and sent to
Cermak

approximately

an

hour

later.

Plaintiff

testified

in

deposition that when he was transported to Cermak an hour later,
the cuffs were loose and the pain and numbness he had felt had
subsided.
The Seventh Circuit has previously discussed how important it
is that prisoners follow orders:

“Orders given must be obeyed.

Inmates cannot be permitted to decide which orders they will obey,
and when they will obey them. . . .

Inmates are and must be

required to obey orders. When an inmate refuse[s] to obey a proper
order, he is attempting to assert his authority over a portion of
the institution and its officials.

Such refusal and denial of

authority places the staff and other inmates in danger.”
Downey, 581 F3d 467, 476 (7th Cir. 2009).

Lewis v.

Defendant Tucker

perceived a threat to order and security and attempted to resolve
it with a minimal amount of force.
continue to be combative.

Plaintiff’s response was to

Defendant Tucker then removed Plaintiff

from the situation, placing him in a holding cell.
The evidence in the record indicates that Defendant Tucker recuffed Plaintiff, within an hour had him escorted to Cermak Health

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Care, and when Plaintiff went, the cuffs were loose and the pain
and numbness he had experienced had abated.

The amount of force

ultimately used was minimal and efficiently employed in a good
faith effort to maintain discipline and jail security and not to
maliciously or sadistically cause harm to Plaintiff.

In fact, the

record indicates that Plaintiff had no further complaints once he
was placed in the holding cell, other than that he was delayed from
going to Cermak.

Therefore, the use of force restored the order

Defendant Tucker sought.
Plaintiff has provided no evidence that his preexisting injury
was

exacerbated

by

September 16, 2010.

Defendant

Tucker

leaving

him

cuffed

on

While Plaintiff testified in his deposition

that when Defendant Tucker tried to turn him back into line he
heard his shoulder pop, and that his shoulder was dislocated, he
also testified that he was resisting Defendant Tucker’s attempts to
restore order, and that he was taken to Cermak within an hour.
While a dislocated shoulder is not a de minimus injury, the Court
is satisfied that Defendant Tucker used a reasonable amount of
force to preserve order and acted reasonably in assuring Plaintiff
was no longer a threat while also providing him with medical care
within an hour of the incident.
There are no facts in the record that suggest Tucker exercised
any force with the intent to cause “malicious and sadistic” harm.
In order to survive a motion for summary judgment the detainee must

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have evidence that supports a reliable inference of wantonness in
the infliction of pain.

Fillmore v. Page, 358 F.3d 496, 504 (7th

Cir. 2004)(citing Whitley v. Albers, 475 U.S. 312, 322 (1992)).
Plaintiff has provided none.

Accordingly, because no reasonable

jury could find that Defendant Tucker subjected Plaintiff to
excessive use of force, Defendant Tucker is entitled to judgment.
IV.

CONCLUSION

For the reasons stated herein, Defendant Tucker’s Motion for
Summary Judgment [#43] is granted and the case is dismissed.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 7/19/2012

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