Montjoy v. Gallardo et al

Filing 89

MEMORANDUM Opinion and Order. Defendants' Motion for Summary Judgment 71 is granted in part and denied in part. The motion for summary judgment is granted as to Officer Tedesco only as to Plaintiff's excessive force claim against Officer Tedesco. The motion for summary judgment is denied as to all other claims and Defendants. Signed by the Honorable Marvin E. Aspen on 12/18/2014. Notice mailed by judge's staff (ntf, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ADAM MONTJOY,

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Plaintiff,

SERGEANT GALLARDO, et al.,
Defendants.

No. 13 C 2421
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
Plaintiff Adam Montjoy, a pretrial detainee at Cook County Jail, brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants, correctional staff at
Cook County Jail, were deliberately indifferent to his safety and used excessive force when trying
to break up an altercation between several detainees. Before the Court is Defendants’ motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, the
Court grants Defendants’ summary judgment motion in part and denies it in part.
BACKGROUND
I. Northern District of Illinois Local Rule 56.1
Because Plaintiff is a pro se litigant, Defendants served him with a “Notice to Pro Se Litigant
Opposing Motion for Summary Judgment” as required by Northern District of Illinois Local Rule
56.2. [Dkt. 73]. The notice explains the consequences of failing to properly respond to a motion for
summary judgment and statement of material facts under Federal Rule of Civil Procedure and Local
Rule 56.1.
Local Rule 56.1 “is designed, in part, to aid the district court, ‘which does not have the
advantage of the parties' familiarity with the record and often cannot afford to spend the time

combing the record to locate the relevant information,’ in determining whether a trial is necessary.”
Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir.2011) (citation omitted). Local Rule 56.1(a)(3)
requires the moving party to provide “a statement of material facts as to which the moving party
contends there is no genuine issue.” Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009).
“The opposing party is required to file ‘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.” Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Local
Rule 56. 1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts
that requires the denial of summary judgment, including references to the affidavits, parts of the
record, and other supporting materials relied upon to support the statement of additional facts. See
Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643–44 (7th Cir.2008).
In general, the purpose of Local Rule 56.1 statements and responses is to identify the relevant
admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady
v. Sheahan, 467 F.3d 1057, 1060 (7th Cir.2006) (“statement of material facts did [ ] not comply with
Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal
arguments, and conjecture”). “When a responding party's statement fails to dispute the facts set forth
in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted
for purposes of the motion.” Cracco, 559 F.3d at 632; see also Frey Corp. v. City of Peoria, Ill., 735
F.3d 505, 513 (7th Cir.2013). In addition, district courts, in their discretion, may “choose[] to ignore
and not consider the additional facts that a litigant has proposed” if the litigant failed to comply with
Local Rule 56.1. Cichon v. Coop. Plus, Inc., 401 F.3d 803, 809-10 (7th Cir. 2005) (citing Midwest
Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995)).
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In sum, “[f]or litigants appearing in the Northern District of Illinois, the Rule 56.1 statement
is a critical, and required, component of a litigant's response to a motion for summary judgment. The
purpose of the local rule is to make the summary judgment process less burdensome on district
courts, by requiring the parties to nail down the relevant facts and the way they propose to support
them.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir.2012).
Plaintiff responded to the motion for summary judgment with a memorandum in opposition
to the motion and a response to certain of the Defendants’ statement of material facts [Dkt. 80].
While Plaintiff failed to cite to specific references to the affidavits, parts of the record, or any other
supporting materials in support of some of his opposition to Defendants’ statement of material facts,
he did properly cite to his deposition testimony and an attached affidavit in opposition to several
statements. The Court has carefully reviewed the Defendants’ statement of material facts, Plaintiff’s
response to those statements, Defendants’ reply to Plaintiff’s responses, and the supporting
documentation provided by all parties. The relevant facts stated below are derived from reviewing
the filings and the materials cited to support, or in objection to, the proposed statement of material
facts.
In addition, Plaintiff’s failure to fully comply with Local Rule 56.1 as to some of Defendants’
statement of material facts does not result in an automatic grant of summary judgment in favor of
Defendants. Instead, the Court still must evaluate all facts in the light most favorable to him, the
non-moving party. See Fed. R. Civ, P. 56(e)(2); Keeton, 667 F.3d at 884. With these standards in
mind, the Court turns to the relevant facts of this case.
II. Relevant Facts
Plaintiff Adam Montjoy was detained at Cook County Jail in Division 9, Tier 1C, on
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September 12, 2012. (Defs.’ 56.1 Stmt. [Dkt. 72] ¶¶ 2-4.) Division 9 is the maximum security
division at Cook County Jail. (Id. ¶ 5.) This division houses violent offenders, offenders charged
with violent crimes, and detainees with disciplinary issues within the jail. (Id.)
On September 12, 2012, Plaintiff was let out of his cell and allowed into the day room for
a three-hour period beginning at approximately 6:00 p.m. (Id. ¶ 6.) At approximately 6:00 p.m. that
evening, Plaintiff told Defendant Correctional Officer Phillips that “somebody told me that I was
gonna be attacked by some detainees.” (Id. ¶ 7.) Plaintiff told Officer Phillips that he needed to be
moved so he would not get hurt. (Id.) At approximately 8:00 p.m. that same evening, Plaintiff told
Officer Phillips and Defendant Correctional Officer Tedesco that he needed to be moved because
he was going to be attacked. (Id.; Plaint.’s Dep. pgs. 106-07.) Officer Tedesco responded to
Plaintiff, “Fight like a man, you know, stop being a pussy.” (Plaint.’s Dep. pgs. 106-07.) Officer
Phillips also told Plaintiff she was not going to call a sergeant for Plaintiff to speak to about the
threat or be moved. (Id.) Plaintiff did not inform Officer Phillips or Officer Tedesco who was
going to attack him, when the attack would occur or how the attack would occur. (Defs.’ 56.1 Stmt.
[Dkt. 72] ¶ 8.) Plaintiff never informed the other Defendants, Sergeant Gallardo, Sergeant Ross,
Correctional Officer Sable or Officer Meller that he had received a threat of a possible attack. (Id.
¶ 11.)
At approximately 8:00 p.m. that evening, Plaintiff placed a telephone call. (Id. ¶ 12.) At the
time, there were approximately twenty detainees in the day room. (Id. ¶ 14.) While on the
telephone, Plaintiff observed another detainee get punched by at least one other detainee. (Id. ¶ 13;
Plaint.’s Resp. ¶ 13.) After punching the other detainee, the men advanced on Plaintiff and he began
running to the “control bubble.” (Defs.’ 56.1 Stmt. [Dkt. 72] ¶ 16.) At this time, Officer Phillips
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and Officer Tedesco were the only officers present in the control bubble. (Id. ¶ 15.) A “10-10" call
for all available officers to respond to the division was made. (Id.) A multi-person fight ensued
within the day room, causing a high risk, dangerous situation involving detainees with weapons that
threatened Plaintiff as well as the other detainees in the day room. (Id. ¶ 18.) When such an incident
occurs, correctional staff are prohibited from entering the area until there are a sufficient number of
officers present, and only after a video camera is present and a “go order” is given by a supervisor.
(Id. ¶ 19.)
During the incident, Plaintiff and the other detainees were running around the day room. (Id.
¶ 23.) During the incident, Plaintiff was stabbed in the back and assaulted by approximately twelve
other detainees. (Id. ¶¶ 22, 24-25; Plaint.’s Resp. ¶¶ 22, 24-25.) Plaintiff went to the control bubble
and saw Sergeant Gallardo and Sergeant Ross inside the control bubble. (Defs.’ 56.1 Stmt. [Dkt.
72] ¶ 26.) Plaintiff also observed several other officers in the bubble. (Plaint.’s Dep. pgs. 69-70.)
Sergeant Gallardo and Sergeant Ross just stood in the bubble, watching the melee, smiling at
Plaintiff, as if it was a “stand-off.” (Id.) While at the control bubble, Plaintiff was stabbed in the
stomach by another detainee. (Defs.’ 56.1 Stmt. [Dkt. 72] ¶ 27.) Plaintiff continued to be attacked
by other detainees at the control bubble. (Id.; Plaint.’s Resp. ¶ 27.)
The correctional staff entered the day room, spraying mace inside the tier.

(Defs.’ 56.1

Stmt. [Dkt. 72] ¶¶ 28-29, 31.) Plaintiff observed Sergeant Gallardo, Sergeant Ross, Officer Sable
and Officer Meller carrying mace when they entered the day room. (Plaint.’s Dep. pgs. 81, 83.)
Officer Meller sprayed mace in Plaintiff’s direction after entering the day room. (Defs.’ 56.1 Stmt.
[Dkt. 72] ¶ 30.) Plaintiff was sprayed with mace approximately 15 to 30 seconds after the attack
stopped. (Id. ¶ 36; Plaint.’s Resp. ¶ 23.) Approximately 10 to 15 minutes elapsed from the start of
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the incident and the time the correctional staff entered the day room. (Id. ¶ 38; Plaint.’s Dep. pg 74.)
The Cook County Department of Corrections (CCDOC) has an established grievance
procedure that was available to all detainees in 2012. (Defs.’ 56.1 Stmt. [Dkt. 72] ¶ 42.) The
grievance policy requires that detainees properly exhaust all administrative remedies prior to filing
a related lawsuit. (Id. ¶ 43.) Filing an appal of a grievance response is required to exhaust a
detainee’s administrative remedies. (Id. ¶ 44.)
Plaintiff filed a grievance regarding the September 12, 2012, incident on September 28, 2012.
(Id. ¶ 46.) Plaintiff received a response to this grievance on October 10, 2012. (Id. 48.) Plaintiff
received a response to his appeal of this grievance on October 18, 2012, that his grievance was being
forwarded to the Office of Professional Responsibility (OPR). (Id. ¶ 49; Plaint.’s Resp. ¶ 49.)
Plaintiff submitted a second grievance regarding the incident on October 24, 2012. (Defs.’
56.1 Stmt. [Dkt. 72] ¶ 47.) Plaintiff received a response to the second grievance on January 9, 2013.
(Id. ¶ 51.) Plaintiff was informed that the grievance was sent to OPR for review. (Id.)
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “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 genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986). In determining summary judgment motions, “facts must
be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as
to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed.2d 686 (2007). The
party seeking summary judgment has the burden of establishing that there is no genuine dispute as
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to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed.2d
265 (1986). After “a properly supported motion for summary judgment is made, the adverse party
‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Anderson, 477 U.S.
at 255 (quotation omitted).
ANALYSIS
Defendants have moved for summary judgment arguing that Plaintiff failed to exhaust his
administrative remedies, that Plaintiff failed to demonstrate a violation of the Fourteenth
Amendment as to all of his claims, and that they are entitled to qualified immunity.
I. Exhaustion of Administrative Remedies
Exhaustion of administrative remedies, pursuant to the Prison Litigation Reform Act, is
required for all prisoner/detainee suits seeking redress for prison circumstances or occurrences,
regardless of whether they involve general circumstances of incarceration or particular episodes. See
Porter v. Nussle, 534 U.S. 516 (2002). Under 42 U.S.C. § 1997e(a), the court is directed to dismiss
a suit brought with respect to prison conditions if the court determines that a plaintiff has failed to
exhaust his administrative remedies. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 536-37
(7th Cir. 1999).
A detainee must take all the steps required by the institution’s grievance system in order to
exhaust his administrative remedies properly. Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004);
Pozo v. McCaughtry, 286 F.3d 1022, 1023-24 (7th Cir. 2002). To exhaust remedies under §
1997e(a) a prisoner “must file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo, 286 F.3d at 1025. The purpose behind the exhaustion
requirement is to give corrections officials the opportunity to address complaints internally before
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a federal suit is initiated. See Porter, 534 U.S. at 524-25.
Defendants have not demonstrated that Plaintiff did not exhaust his administrative remedies
regarding the September 12, 2012, incident. The undisputed facts show that Plaintiff filed a
grievance regarding the incident on September 28, 2012. Plaintiff received a response to this
grievance on October 10, 2012, and appealed that response. Plaintiff received a response to his
appeal of this grievance on October 18, 2012, indicating that his grievance was being forwarded to
the OPR. Defendants’ argument that Plaintiff was required to wait for a response from the OPR
before filing suit is meritless. The grievance procedure provides that a grievance be filed and an
appeal be filed by the detainee if he is not satisfied with the response. Plaintiff took these steps.
There is no procedure or policy that required Plaintiff to proceed farther on this grievance.
The cases cited by Defendants in support of their argument are readily distinguished. The
plaintiffs in Worthem v. Boyle, 404 Fed. Appx. 45 (7th Cir. 2010) and Crayton v. Graffeo, No. 12
C 7128, 2014 WL 46453 (N.D. Ill. 2014) (Cole, J.), failed to timely appeal the responses to their
grievances, not the response to the appeal of his grievance as in this case. Accordingly, summary
judgment is denied based on Defendants’ argument that Plaintiff failed to exhaust his administrative
remedies.
II. Merits of Plaintiff’s Claims
A. Failure to Protect Claim
Plaintiff sues Officer Tedesco and Officer Phillips for alleged violation of the Fourteenth
Amendment based on their failure to protect him from being attacked by another detainee.
(Amended Complaint [Dkt. 57], pgs. 20-21.)

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Jail officials have a duty to protect pretrial detainees/inmates from violence by other
prisoners. See Farmer v. Brennan, 511 U.S. 825, 833 (1988); Grieveson v. Anderson, 538 F.3d 763,
775 (7th Cir. 2008); Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). To succeed on a claim
based on a defendant’s failure to protect another inmate, a plaintiff must demonstrate that the
defendant was deliberately indifferent to the fact that the plaintiff was in serious risk of being
harmed. See Shields v. Dart, 664 F.3d 178, 181 (7th Cir. 2011); Grieveson, 538 F.3d at 775;
Pinkston, 440 F.3d at 889. Conduct by the defendant that is simply negligent or inadvertent is not
actionable under Section 1983. Instead, the defendant must know of a substantial risk of serious
harm and he must fail to take reasonable measures to prevent that harm from occurring. See
Pinkston, 440 F.3d at 889; Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999).
Thus, a plaintiff must demonstrate that the defendants were deliberately indifferent to the
fact that the plaintiff was at serious risk of being harmed. See Grieveson, 538 F.3d at 775; Pinkston,
440 F.3d at 889. The defendant must have known of a substantial risk of serious harm to the
plaintiff and he must have failed to take reasonable measures to prevent that harm from occurring.
See Pinkston, 440 F.3d at 889. Actual knowledge of impending harm may be inferred from
circumstantial evidence. Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005).
Defendants argue that Plaintiff’s general statement that he needed to be moved because he
heard that he was going to be attacked was too general to be considered a “tangible” threat to his
safety or well-being. However, Plaintiff told Officer Phillips and Officer Tedesco that he was in fear
of being attacked and asked to be moved. Thus, Officer Phillips and Officer Tedesco were made
aware of a possible threat to Plaintiff’s well-being. Defendants attempt to fault Plaintiff for not
providing more information and not knowing who was threatening him. Yet, Defendants did not
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seek more information from Plaintiff. Instead, they told him they were not going to call a sergeant
so Plaintiff could address the issue with a sergeant and Officer Tedesco responded that Plaintiff
should “[f]ight like a man” and to stop “being a pussy.” If no threat actually existed, they would not
have advised Plaintiff to “fight like a man.” Based on these facts, genuine issues of material exist
as to whether the information provided to Officer Phillips and Officer Tedesco was sufficient to
apprise them of a possible substantial risk to Plaintiff’s safety and whether their response to Plaintiff
demonstrates deliberate indifference to that threat.
B. Failure To Intervene
Plaintiff sues Sergeant Gallardo and Sergeant Ross for alleged violation of the Fourteenth
Amendment based on their failure to intervene when they were in the control bubble and saw
Plaintiff being attacked. (Amended Complaint [Dkt. 57], pg. 21.)
Jail officials have a duty to protect pretrial detainees/inmates from violence by other
prisoners. See supra. However, a prison official is not required to place himself at risk by breaking
up a fight between inmates. See Shields, 664 F.3d at 181; Guzman v. Sheahan, 495 F.3d 852, 858
(7th Cir. 2007); Peate v. McCann, 294 F.3d 879, 883 (7th Cir. 2002). A lone prison guard or
correctional officer is not required to take an unreasonable risk of attempting to break up a fight. See
Shields, 664 F.3d at 181; Guzman, 495 F.3d at 858.
Defendants rely heavily on the Seventh Circuit’s ruling in Shields, in which the court found
that the correctional officers’ 15 to 20 minute delay in arriving on the scene, while “most troubling,”
did not rise to deliberate indifference. Shields, 664 F.3d at 182. Here, Plaintiff stated that he
believed it took 10 to 15 minutes before the correctional officers entered the tier to break up the
fight. While that time frame is within the 15 to 20 minute time frame in Shields, the Court does not
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read Shields as holding that any delay of up to 20 minutes does not rise to a constitutional violation.
For example, in the present case, Plaintiff testified at his deposition that he observed several officers
in the bubble that just stood there watching the melee, smiling at Plaintiff, as if it was a “stand-off.”
While the staff was not required to enter the day room and place themselves at risk of harm until the
proper number of officers were present to control the situation, genuine issues of material fact exist
as to when the appropriate number of officers were present and whether they intentionally delayed
entry into the day room to take control of situation and stop Plaintiff from being attacked. Thus,
summary judgment must be denied as to this claim.
C. Excessive Force By Use of Pepper Spray
Lastly, Plaintiff sues Sergeant Gallardo, Sergeant Ross, Officer Meller, Officer Sable and
Officer Tedesco for alleged violation for the Fourteenth Amendment based on their use of pepper
spray when the situation was already under their control. (Amended Complaint [Dkt. 57], pgs. 2122.)
The core requirement that a plaintiff must prove on an excessive force claim is that the
correctional officer used force not “in a good-faith effort to maintain or restore disciple,” but did so
“maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992);
Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009). Factors that are used to determine wether
a correctional officer’s use of force was legitimate or malicious include: (1) the need for the use of
force, (2) the relationship between the need for force and the force that was applied, (3) the threat
reasonably perceived by the correctional officer, (4) any efforts to temper the severity of the force
applied, and (5) the extent of the injuries suffered. Hendrickson, 589 F.3d at 890. However, even
if the correctional officer’s use of force served no good-faith disciplinary purpose, force that is de
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minimis does not constitute a violation of the Eighth Amendment. Hendrickson, 589 F.3d at 890.
Even so, a prisoner need not suffer a “serious injury” to raise an Eighth Amendment claim.
Hendrickson, 589 F.3d at 890-91. Notably, “summary judgment is often inappropriate in excessive
force cases because the evidence surrounding the officer’s use of force is often susceptible of
different interpretations.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010), citing
Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th Cir. 2009).
Here, Sergeant Gallardo, Sergeant Ross, Officer Meller, and Officer Sable, whom allegedly
sprayed mace in the day room, ague that they used reasonable force because 12 to 20 detainees were
fighting in the day room, detainees were running throughout the day room, and at least one detainee
had a weapon. Defendants rely heavily on the videotape of their entry in support of their argument.
The Court reviewed the videotape and it does show detainees running around the day room
immediately prior to the officers’ entry into the day room. It also shows that it appears that the
situation was quickly taken under control. However, it does not show when any mace was sprayed
and whether the mace was sprayed when the situation was already under control. Thus, genuine
issues of material fact exist as to whether the officers’ use of mace in the day room was necessary
or constituted excessive force.
Sergeant Gallardo, who allegedly sprayed mace directly at Plaintiff, also argues that he was
justified in spraying mace directly at Plaintiff because Plaintiff had a weapon (a garbage can or
garbage can lid). However, Plaintiff disputes having any type of weapon when he was sprayed with
mace and avers that he was laying on the ground when he was sprayed with mace by Sergeant
Gallardo.

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In light of the above disputed facts, genuine issues of material fact exist as to whether
Defendants Sergeant Gallardo, Sergeant Ross, Officer Meller, and Officer Sable used excessive force
when they sprayed mace in the day room and/or directly at Plaintiff. Accordingly, summary
judgment is denied as to Plaintiff’s excessive force claim against Sergeant Gallardo, Sergeant Ross,
Officer Meller, and Officer Sable.
Plaintiff also alleged that Officer Tedesco used excessive force by spraying Plaintiff with
mace in his amended complaint. However, it is undisputed that Plaintiff did not testify that he
observed Officer Tedesco with mace and he does not argue in opposition to Officer Tedesco’s
argument that he did not spray mace in the day room. Accordingly, summary judgment is granted
as to the excessive force claim against Officer Tedesco.
III. Qualified Immunity
If a public official raises the defense of qualified immunity, the plaintiff bears the burden of
showing: (1) whether he has asserted a violation of a constitutional right and (2) whether the
applicable constitutional standards were clearly established at the time the alleged violation occurred.
Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir. 2000). A clearly established right is
established if the plaintiff can demonstrate that “the contours of the right [are] sufficiently clear that
a reasonable official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). “This is not to say that an official action is protected by
qualified immunity unless the very action in question has been held unlawful . . . but is to say that
in light of the pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 639-40.
Here, Plaintiff has asserted a violation of his constitutional rights based on the Defendants’
conduct and genuine issues of material facts exist as to whether his constitutional rights were
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violated by the Defendants. It was also clearly established that the correctional staff had a duty to
protect Plaintiff from harm and use only the force that was needed under the circumstances. See
supra. Accordingly, summary judgment on the basis of qualified immunity is also denied.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment [Dkt. 71] is granted
in part and denied in part. The motion for summary judgment is granted as to Officer Tedesco only
as to Plaintiff’s excessive force claim against Officer Tedesco. The motion for summary judgment
is denied as to all other claims and Defendants.

12/18/14

____________________________
Marvin E. Aspen
United States District Judge

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