Birdo v. Gomez et al
Filing
172
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 7/27/2016. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Kevin Birdo,
Plaintiff,
Case No. 13-CV-6864
v.
Judge John Robert Blakey
Deputy Director Dave Gomez et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This case involves claims by Plaintiff Kevin Birdo (“Plaintiff” or “Birdo”), a
former inmate at Stateville Correctional Center (“Stateville”), against 11 separate
prison personnel for incidents that occurred over the course of Plaintiff’s
incarceration.
Plaintiff’s First Amended Complaint [61] alleges nine causes of
action that include state law torts of intentional infliction of emotional distress and
negligent supervision, as well as 42 U.S.C. § 1983 violations for excessive force,
failure to protect, and retaliation. On March 25, 2016, Defendants John Combs
(“Combs”), Anthony Egan (“Egan”), David Gomez (“Gomez”), Michael Lemke
(“Lemke”), Jenny McGarvey (“McGarvey”), Kenneth Nushardt (“Nushardt”), Nancy
Pounovich (“Pounovich”), and Elizabeth Rivera (“Rivera”) (collectively, the “State
Defendants”) filed a motion for summary judgment as to all counts. State Defs.’
Mot. Summ. J. [139]. On March 29, 2016, Defendants Dr. Usha Kartan (“Kartan”),
Dr. Catherine Larry (“Larry”), and Susan Wilson (“Wilson”) (collectively, the
“Mental Health Defendants”) filed a separate motion for summary judgment.
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Mental Health Defs.’ Mot. Summ. J. [145]. This Memorandum Opinion and Order
addresses both motions, which, for the reasons discussed below, are granted in part
and denied in part.
I.
Background
A.
The Parties
Plaintiff was an inmate incarcerated at Stateville between spring 2011 and
March 11, 2013. State Defs.’ Rule 56.1 Statement of Facts [141] Attach. 1 at 16:1817:5.
During the timeframe of Plaintiff’s First Amended Complaint, Defendant
Gomez was employed as Deputy Director of the Northern Division of the Illinois
Department of Corrections (“IDOC”).
[141] ¶ 2.
State Defs.’ Rule 56.1 Statement of Facts
Defendant Lemke was employed as Warden of Stateville.
Id. ¶ 4.
Defendant Pounovich was employed as Stateville’s Assistant Warden of Programs.
Id. ¶ 3.
Defendants Combs, Egan, McGarvey, Nushardt, and Rivera were employed
as Correctional Officers at Stateville during various times of Plaintiff’s confinement.
Id. ¶¶ 5-9. Defendants Kartan, Larry, and Wilson were employed as mental health
professionals at Stateville. Mental Health Defs.’ Rule 56.1 Statement of Facts [146]
¶¶ 12-14.
B.
Plaintiff’s Hunger Strike
Plaintiff claims that in August 2012, Stateville employees placed another
inmate who Plaintiff believed to be mentally unstable in the same cell as Plaintiff.
Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶ 1. Plaintiff alleges that his
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requests to be removed from his cell were ignored and Plaintiff was ultimately
assaulted, resulting in a broken right pinkie finger. Id. ¶ 2. Plaintiff further claims
that, due to the altercation and Plaintiff’s protests, he was unfairly issued three
disciplinary tickets. Id. ¶ 3. Plaintiff asserts that on October 17, 2012, he initiated
a hunger strike as a result of the lack of medical attention for his broken finger and
his receipt of the three disciplinary tickets. 1 Id. ¶ 7; First Am. Compl. [61] ¶ 18.
Inmates on a hunger strike are generally transferred to the infirmary for
health reasons. State Defs.’ Rule 56.1 Statement of Facts [141] ¶ 16. Therefore,
starting on approximately November 14, 2012, Plaintiff was housed in the Stateville
infirmary. Id. ¶ 15.
While prisoner hunger strikes are generally short in duration, Plaintiff’s
hunger strike continued for a significant period of time. Pl.’s Rule 56.1 Statement
of Additional Facts [159] ¶ 8. When this occurs, Stateville medical staff force feeds
inmates. State Defs.’ Rule 56.1 Statement of Facts [141] Attach. 1 105:11-107:4.
Plaintiff estimates that, during the duration of his hunger strike, Stateville
employees attempted to force feed him approximately 70 times. Id. at 81:10-82:6.
If a prisoner refuses to comply with a force feed, the Stateville tactical team
is deployed to assist Stateville medical staff. State Defs.’ Rule 56.1 Statement of
Facts [141] ¶ 28. Under Stateville’s standard operating procedure, the tactical team
first orders the inmate to move to his cell door and applies handcuffs. Id. ¶ 27.
Tactical team members then place their arms on the inmate’s shoulders, place him
None of Plaintiff’s claims derive from the alleged assault by his cellmate or any subsequent
disciplinary action; rather, they flow from Defendants’ alleged responses to Plaintiff’s hunger strike
and resulting grievances.
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in a restraint chair, and stand on either side of him. Id. If an inmate refuses the
tactical team’s orders to “cuff up” at the cell door, the tactical team enters the cell
and places restraints on the inmate. Id. ¶ 30. Plaintiff alleges that, during the
duration of his hunger strike, the tactical team was called to force feed Plaintiff
more than 50 times. Pl.’s Rule 56.1 Statement of Additional Facts [159] Attach. 1 at
89:1-7.
Once the inmate is secure, medical staff enters the cell and performs the force
feed. State Defs.’ Rule 56.1 Statement of Facts [141] ¶ 27. Stateville medical staff
inserts a nasogastric tube into the inmate’s nose and feeds the prisoner “Ensure” or
“Boost” dietary drink. Id. Following completion of the force feed, prison personnel
leave the inmate’s cell. Id.
C.
Events of February 3-4, 2012
1.
The Complaint to Defendants Gomez and Lemke
Plaintiff claims that, on February 3, 2012, the tactical team was called to
force feed Plaintiff.
Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶ 12.
Plaintiff further alleges that, during this force feed, the tactical team slammed
Plaintiff’s head into the wall.
Id.
Plaintiff claims that he complained of the
incident to Internal Affairs, who referred the matter to Defendants Gomez and
Lemke. Id. ¶ 13.
Plaintiff alleges that, on February 4, 2012, Defendants Gomez and Lemke
spoke to Plaintiff at the infirmary.
Id. ¶ 14.
Plaintiff claims that he told
Defendants Gomez and Lemke that the tactical team had been physically and
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emotionally abusing him throughout the duration of his hunger strike and that he
feared for his safety.
Id.
Plaintiff alleges that Defendants Gomez and Lemke
stated that they would look into the issue. Id.
2.
Actions by Defendants Combs and Egan
According to Plaintiff, on February 4, 2012, shortly after his complaint to
Defendants Gomez and Lemke, the tactical team returned to Plaintiff’s cell. Pl.’s
Rule 56.1 Statement of Additional Facts [159] ¶ 15. Members of the tactical team
included Defendants Combs and Egan. Id. Plaintiff alleges that the tactical team
forced Plaintiff to stand in the corner of his cell while Defendants Combs and Egan
“looked at obituaries and pictures of his family, taunted Plaintiff,” and
impermissibly “threw his personal items in the trash.” Id. Plaintiff further alleges
that the actions of Defendants Combs and Egan were ordered by Defendants Gomez
and Lemke as retaliation against Plaintiff’s grievances and ongoing hunger strike.
First Am. Compl. [61] ¶¶ 33, 89.
State Defendants present an alternate version of events. State Defendants
assert that Stateville inmates on segregation status are allowed limited personal
property. State Defs.’ Rule 56.1 Statement of Facts [141] ¶ 25. State Defendants
claim that, pursuant to this policy, on February 4, 2012, excess property was
removed from Plaintiff’s cell. Id. According to State Defendants, excess property is
sent to the property room, not the trash, where an inmate may retrieve it so long as
he remains in cell compliance. Id.
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D.
Events of March 7, 2012
1.
The Attempted Force Feed
At 10:30 a.m. on March 7, 2013, Defendant McGarvey activated the tactical
team to assist medical staff with a force feed of Plaintiff. State Defs.’ Rule 56.1
Statement of Facts [141] ¶ 31. Members of the tactical team included Defendants
Nushardt and Rivera. Id.
The parties contest the remaining events surrounding Plaintiff’s attempted
force feed. Plaintiff claims that, upon arrival, rather than ordering Plaintiff to “cuff
up” near the cell door, Defendant Nushardt ordered Plaintiff to lie on the bed and
put his hands behind his back. Pl.’s Rule 56.1 Statement of Additional Facts [159]
¶¶ 22-23. Plaintiff claims that even though he immediately complied with this
order, Defendant Nushardt entered his cell and purposely slammed his shield on
Plaintiff’s hand and back, intending to harm Plaintiff. Id. ¶ 25. Plaintiff claims
that he “screamed out in pain,” but that Defendant Nushardt continued pressuring
his shield on Plaintiff’s hand and back.
Id. ¶ 26.
Meanwhile, the remaining
members of the tactical team taunted, cursed at, and threatened Plaintiff.
Id.
Plaintiff claims that Defendant Nushardt’s action re-broke Plaintiff’s right pinkie
finger. Id.
According to State Defendants, the tactical team did order Plaintiff to “cuff
up” at his cell door.
State Defs.’ Rule 56.1 Statement of Facts [141] ¶ 33.
Defendants claim that when Plaintiff failed to comply, the tactical team ordered
Plaintiff to lie on the bed and place his hands behind his back. Id. ¶ 32. Due to
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Plaintiff’s noncompliance with the tactical team’s original order to “cuff up” at
Plaintiff’s cell door, Defendant Nushardt placed his shield on Plaintiff’s back until
restraints were placed on Plaintiff.
Id. ¶¶ 33-34.
Defendants maintain that
Defendant Nushardt’s use of his shield was due to concerns about the “safety of
staff and himself” and not borne of animus against Plaintiff. Id. ¶ 34.
2.
Plaintiff’s Placement on Suicide Watch
Mental health professionals at Stateville evaluate inmates on hunger strikes
for their mental and emotional wellbeing.
Mental Health Defs.’ Rule 56.1
Statement of Facts [146] ¶ 16. Plaintiff was a patient on Defendant Wilson’s case
load, and Defendant Wilson would evaluate Plaintiff every few days. Id. ¶ 17. After
the attempted force feed on March 7, 2013, Defendant Wilson interviewed Plaintiff.
Id. ¶ 20.
Mental Health Defendants allege that, upon arrival, Defendant Wilson found
Plaintiff “punching and kicking the door in his cell and threatening staff.” Mental
Health Defs.’ Rule 56.1 Statement of Facts [146] ¶ 22. Mental Health Defendants
also claim that Plaintiff was, volatile, aggressive, and uncooperative with Defendant
Wilson’s crisis assessment. Id. Plaintiff denies these claims. Pl.’s Resp. to Mental
Health Defs.’ Rule 56.1 Statement of Facts [155] ¶ 22. State Defendants further
allege that, prior to Defendant Wilson’s arrival, Plaintiff informed Defendant
Pounovich that he wanted to “cut himself.” State Defs.’ Rule 56.1 Statement of
Facts [141] ¶ 42.
Plaintiff denies this allegation, and alleges that Defendant
Pounovich provided this false information to Defendant Wilson in retaliation for
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Plaintiff’s hunger strike. Pl.’s Resp. to State Defs.’ Rule 56.1 Statement of Facts
[159] ¶¶ 42-43. Mental Health Defendants claim that, due to Plaintiff’s behavior
and statements to Defendants Wilson and Pounovich, Defendant Wilson decided to
place Plaintiff on suicide watch. Mental Health Defs.’ Rule 56.1 Statement of Facts
[146] ¶ 26.
Mental Health Defendants maintain that the decision to place Plaintiff on
suicide watch was made solely by Defendant Wilson. Id. In contrast, Plaintiff
alleges that Defendants McGarvey and Larry told Defendant Wilson, “we’re tired of
this shit” and ordered that Plaintiff be placed on suicide watch “in order to break
his hunger strike.” Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶ 27.
Inmates placed on suicide watch are taken to mental health cells in the
infirmary. Mental Health Defs.’ Rule 56.1 Statement of Facts ¶ 36. Suicide watch
inmates are not permitted to wear clothing because the materials can be used for
self-harm. Id. As a result, Plaintiff was strip searched after he was placed on
suicide watch. Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶ 31. Plaintiff
alleges that, contrary to Stateville standard operating procedure, Defendant
Rivera—a female—viewed and video-recorded this strip-down process. Id.
Defendant Kartan evaluated Plaintiff on March 9 and 10, 2013.
Mental
Health Defs.’ Rule 56.1 Statement of Facts [146] ¶ 41. Mental Health Defendants
claim that Defendant Kartan noted that Plaintiff was “easily irritable, became
easily agitated and remained unpredictable.”
Id. ¶ 42.
Plaintiff denies these
claims. Pl.’s Resp. to Mental Health Defs.’ Rule 56.1 Statement of Facts [155] ¶ 42.
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Regardless, Defendant Kartan determined that Plaintiff’s suicide watch should
continue. Mental Health Defs.’ Rule 56.1 Statement of Facts [146] ¶ 42. Plaintiff
alleges that this determination was made in order to further retaliate against
Plaintiff’s grievances and hunger strike. First Am. Compl. ¶ 111.
E.
Plaintiff’s Transfer
On March 11, 2013, Plaintiff was transferred to Pontiac Correctional Center. 2
Mental Health Defs.’ Rule 56.1 Statement of Facts [146] ¶ 47. Plaintiff claims that
Defendants Gomez and Lemke ordered Plaintiff’s transfer as continued retaliation
against Plaintiff. First Am. Compl. [161] ¶ 70.
II.
Legal Standard
“Summary judgment is designed to head off a trial if the opposing party ‘does
not have a reasonable prospect of prevailing before a reasonable jury—that is, a
jury that will base its decision on facts and the law, rather than on sympathy or
antipathy or private notions of justice.’” Karazanos v. Navistar Int’l Transp. Corp.,
948 F.2d 332, 338 (7th Cir. 1991) (quoting Palucki v. Sears, Roebuck & Co., 879 F.2d
1568, 1572 (7th Cir. 1989)).
Summary judgment is appropriate if 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); Burnell v. Gates Rubber Co., 647 F.3d 704, 708
(7th Cir. 2011).
The party seeking summary judgment has the burden of
establishing that there is no genuine dispute as to any material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In making a summary judgment
Following his transfer, Plaintiff’s hunger strike continued until April 25, 2013. Mental Health
Defs.’ Rule 56.1 Statement of Facts [146] ¶ 47.
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determination, the Court must “construe all facts and reasonable inferences in favor
of the non-moving party.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 653
(7th Cir. 2010).
III.
Analysis
State Defendants base their summary judgment motion on the following
arguments: (1) this Court lacks supplemental jurisdiction over Counts I and VIII as
they relate to Defendants Combs, Egan and Rivera; (2) Counts I-III and VIII are
barred by the doctrine of sovereign immunity; (3) Plaintiff’s excessive force claim
(Count VI) fails because Defendant Nushardt’s actions on March 7, 2013 constituted
“de minimis” force and a “good-faith effort to maintain and restore discipline”; (4)
Plaintiff’s failure to protect claim (Count VII) fails because Plaintiff cannot show
that his prison conditions posed a “substantial risk of serious harm” or that State
Defendants acted with “deliberate indifference”; (5) there is insufficient evidence to
support Plaintiff’s intentional infliction of emotional distress claims (Counts I, II,
and VIII); and (6) Plaintiff’s retaliation claims (Counts IV, V, and IX) fail because
Plaintiff cannot adequately show: (a) that Plaintiff was engaged in an activity
protected by the First Amendment; (b) that Plaintiff suffered a deprivation that
would likely deter First Amendment activity in the future; or (c) that Plaintiff’s
alleged First Amendment activity was a motivating factor in Defendant’s alleged
retaliatory action. State Defs.’ Mem. Supp. Summ. J. [140]. Each argument will be
addressed in turn.
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Mental Health Defendants base their summary judgment motion on the same
grounds as State Defendants as it relates to Plaintiff’s intentional infliction of
emotional distress and retaliation claims. Therefore, Mental Health Defendants’
arguments will be addressed in conjunction with those of State Defendants.
A.
Supplemental Jurisdiction
State Defendants first argue that some of Plaintiff’s claims for intentional
infliction of emotional distress (Counts I and VIII) – specifically as they relate to
Defendants Combs, Egan, and Rivera – fall outside the Court’s supplemental
jurisdiction, because the claims “share no common facts with [Plaintiff’’s] § 1983
claims, which are the basis for the Court’s original jurisdiction.” 3 State Defs.’ Mem.
Supp. Summ. J. [140] 4-5; see 28 U.S.C. § 1331 (“[t]he district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States”). According to State Defendants, Defendants Combs,
Egan, and Rivera “are not implicated by any of Plaintiff’s § 1983 claims” and
therefore “have nothing to do with the substance of his § 1983 claim[s].” Id.
The Court finds State Defendants’ argument unconvincing. Under 28 U.S.C.
§ 1367, “in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy.” Claims form part of the same case or controversy
when they “derive from a common nucleus of operative fact.” Groce v. Eli Lilly &
Co., 193 F.3d 496, 500 (7th Cir. 1999) (quoting City of Chicago v. International
3
State Defendants do not challenge this Court’s jurisdiction over Plaintiff’s 42 U.S.C. § 1983 claims.
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College of Surgeons, 522 U.S. 156, 164–65 (1997)). To satisfy this requirement, “a
loose factual connection between the claims is generally sufficient.”
McCoy v.
Iberdrola Renewables, Inc., 760 F.3d 674, 683 (7th Cir.), reh’g denied, 769 F.3d 535
(7th Cir. 2014) (quoting Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299
(7th Cir. 1995)).
1.
Count I
Cause of Action
Intentional Infliction of
Emotional Distress
Count I
Relevant Named Defendant(s)
1. Combs
2. Egan
In Count I, Plaintiff alleges that, on February 4, 2013, Defendants Combs
and Egan intentionally inflicted emotional distress on Plaintiff when they “took a
substantial portion of Plaintiff’s personal property,” “taunted” him, and told him
that his belongings were “going in the trash.” First Am. Compl. [61] ¶ 34.
In Count IV, one of Plaintiff’s two § 1983 claims, Plaintiff alleges that “in
retaliation” for Plaintiff filing grievances and engaging in a constitutionally
protected hunger strike, “Defendants Gomez [and] Lemke . . . took adverse action
against Plaintiff.”
Id. ¶¶ 88-89.
Specifically, Plaintiff claims that as Deputy
Director of the Northern Division of IDOC and Warden of Stateville, “Defendants
Gomez and Lemke ordered the wrongful conduct against Plaintiff and engaged in a
conspiracy with the other Defendants to ‘break’ the Plaintiff by any means
necessary.” State Defs.’ Rule 56.1 Statement of Facts [141] ¶¶ 2, 4, 33 (emphasis
added).
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Plaintiff further states that, on February 4, 2013, immediately after he
complained to Defendants Gomez and Lemke about Plaintiff’s treatment at the
hands of the tactical team, Plaintiff was “wrongfully mistreated by Defendants
Egan and Combs.” Id. ¶ 34. From these facts, in can be reasonably inferred that
Plaintiff’s alleged mistreatment by Defendants Combs and Egan was part of the
wrongful conduct allegedly ordered by Defendants Gomez and Lemke. In other
words, some of the retaliatory acts allegedly ordered by Defendants Gomez and
Lemke in Count IV were the same acts allegedly performed by Defendants Combs
and Egan in Count I.
As such, Counts I and IV share a common nucleus of
operative facts and are thus part of the same case or controversy for the purposes of
28 U.S.C. § 1367.
Therefore, State Defendants’ motion as to Count I and
Defendants Combs and Egan is denied.
2.
Count VIII
Count VIII
Cause of Action
Relevant Named Defendant(s)
Intentional Infliction of
1. Rivera
Emotional Distress
Similarly, in Count IV, Plaintiff alleges that on March 7, 2013, as retaliation
for Plaintiff’s hunger strike, Defendant Wilson placed Plaintiff on suicide watch
“without a proper basis for doing so.” First Am. Compl. [61] ¶ 54. Plaintiff alleges
that, as part of being improperly placed on suicide watch, he was forced to “strip
naked” so that he “could be placed in a stripped out cell.” Id. ¶ 55. In Count VIII,
Plaintiff alleges that Defendant Rivera viewed and video-recorded this strip-down
process in order to inflict emotional distress on Plaintiff. First Am. Compl. [61] ¶¶
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55, 59-60. Once again, as with Count I, the retaliatory conduct allegedly ordered by
Defendant Wilson in Count IV led to the misconduct allegedly committed by
Defendant Rivera in Count VIII. Therefore, Counts IV and VIII share a common
nucleus of operative facts and are thus part of the same case or controversy. Thus,
on this issue, State Defendants’ motion as to Count VIII and Defendant Rivera is
denied.
B.
Sovereign Immunity
Next, State Defendants claim that Plaintiff’s state law tort claims for
intentional infliction of emotional distress (Counts I, II, and VIII) and negligent
supervision (Count III) are barred by the doctrine of sovereign immunity. State
Defs.’ Mem. Supp. Summ. J. [140] 5.
The Eleventh Amendment provides that the “Judicial power of the United
States shall not be construed to extend to any suit . . . commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI. Although the express terms
of the Eleventh Amendment “do not say as much, the Supreme Court long ago held
that a citizen of a state may not bring an action against his own state in federal
court.” Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th Cir. 1997). Moreover, both
the Supreme Court and the Seventh Circuit have held that “the Eleventh
Amendment bars an action in federal court against a state, its agencies, or its
officials in their official capacity.” Id.
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The Eleventh Amendment, however, does not bar a suit against a state
official in his or her individual capacity. Id. This is so because “when a state officer
deprives an individual of a federal constitutional right, that official ‘comes into
conflict with the superior authority of that Constitution, and he is in that case
stripped of his official or representative character and is subjected in his person to
the individual conduct. The State has no power to impart to him any immunity
from responsibility to the supreme authority of the United States.”
Trotter v.
Klincar, 566 F. Supp. 1059, 1064 (N.D. Ill. 1983), aff’d, 748 F.2d 1177 (7th Cir.
1984) (quoting Ex Parte Young, 209 U.S. 123, 159-60 (1908)).
These principles notwithstanding, a claim against an individual in his or her
individual capacity “will nonetheless be considered a claim against the state of
Illinois,” if “judgment for the plaintiff could operate to control the actions of the
State or subject it to liability.” Liebich v. Hardy, No. 11 C 5624, 2013 WL 4476132,
at *11 (N.D. Ill. Aug. 19, 2013) (quoting Loman v. Freeman, 890 N.E.2d 446, 453
(Ill. 2008)).
An agent’s conduct will be attributed to the State for purposes of
sovereign immunity if: (1) there are no allegations that an agent or employee of the
State acted beyond the scope of his authority through wrongful acts; (2) the duty
alleged to have been breached was not owed to the public generally independent of
the fact of State employment; and (3) the complained-of actions involve matters
ordinarily within that employee’s normal and official functions of the State.
Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001) (quoting Healy v. Vaupel,
549 N.E.2d 1240, 1247 (Ill. 1990)).
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Here, Plaintiff makes claims against the State Defendants named in Counts
I, II, III, and VIII in their individual capacities.
1.
Counts I, II, and VIII
Count I
Cause of Action
Relevant Named Defendant(s)
Intentional Infliction of
1. Combs
Emotional Distress
2. Egan
Count II
Cause of Action
Relevant Named Defendant(s)
Intentional Infliction of
1. Gomez
Emotional Distress
2. Lemke
Count VIII
Cause of Action
Relevant Named Defendant(s)
Intentional Infliction of
1. Larry
Emotional Distress
2. McGarvey
3. Pounovich
4. Rivera
5. Wilson
Construing all facts and reasonable inferences in Plaintiff’s favor, the conduct
of Defendants named in Counts I, II, and VIII cannot be sufficiently attributed to
the State for the purposes of sovereign immunity.
First, Plaintiff adequately
demonstrates that the State Defendants named in Counts I, II, and VIII allegedly
acted beyond the scope of their respective authority. An act is considered within the
scope of an employee’s authority when “it is of the general kind he is authorized to
perform, and is motivated, at least in part, by a purpose to serve the principal.”
Richman, 270 F.3d 430, 442 (7th Cir. 2001).
First, regarding Counts I and II, the parties agree that Stateville procedures
allow inmates on segregation status to possess only limited property, State Defs.’
Rule 56.1 Statement of Facts [141] ¶ 25, and authorize correctional officers to move
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excess property from an inmate’s private cell to the prison’s “property room.” Pl.’s
Rule 56.1 Statement of Additional Facts [159] ¶ 17. However, Plaintiff alleges that
Defendants Combs, Egan, Gomez, and Lemke acted beyond this authority by
directly or indirectly throwing Plaintiff’s personal property in the trash. First Am.
Compl. [61] ¶¶ 33-34.
Similarly, regarding Count VIII, the parties agree that Stateville may place
inmates on suicide watch to prevent prisoners from engaging in self-harm. State
Defs.’ Rule 56.1 Statement of Facts [141] ¶ 38.
However, Plaintiff alleges that
Defendants Larry, McGarvey, Pounovich, and Wilson acted beyond this authority
by placing Plaintiff on suicide watch in order to retaliate against his grievances and
“break” his hunger strike. First Am. Compl. [61] ¶ 54. Likewise, Stateville policies
prohibit female presence or videotaping during a male inmate strip-down.
Pl.’s
Rule 56.1 Statement of Additional Facts [159] ¶ 31; Pl.’s Rule 56.1 Statement of
Additional Facts [159] Attach. J. at 41:21-42:20. Plaintiff alleges that Defendant
Rivera violated this guideline with her actions on March 7, 2013. First Am. Compl.
[61] ¶¶ 55, 59-60.
Second, for each of Counts I, II, and VIII, Plaintiff indicates that Defendants
acted not by a purpose to serve Stateville, see Richman, 270 F.3d at 442, but rather
with the specific intent to inflict “severe emotional distress on Plaintiff.” First Am.
Compl. ¶¶ 77, 81, 107.
Finally, sovereign immunity applies only where the duty alleged to have been
breached “is imposed solely by virtue of the individual’s employment with the
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state.” Sweeney v. Burras, No. 12 C 564, 2014 WL 1018190, at *7 (N.D. Ill. Mar. 16,
2014) (quoting Fritz v. Johnston, 209 Ill. 2d 302, 309 (2004)).
In Sweeney, the
plaintiff, in conjunction with § 1983 claims, sued two Chicago State University
police officers for state law claims of malicious prosecution, intentional infliction of
emotional distress, battery, and assault.
Id. at *1.
Arguing that they acted
“exclusively pursuant [to] their duties as police officers for a state university,” the
defendants invoked sovereign immunity for all of the plaintiff’s state law claims and
moved for summary judgment. Id. at *7-8. Denying the defendants’ motion, the
court emphasized that the issue of whether a claim against a state employee is
considered a claim against the State “does not depend simply on whether the
employee was acting within the scope of his employment when he committed the act
in question.” Id. at *7 (quoting Fritz, 209 Ill. 2d at 310). Rather, “it turns on the
source of the duty the employee is claimed to have breached.” Id. The court found
that the duties at issue in the plaintiff’s state law claims were “not specific to their
state employment.” Id. at *8.
Here, as in Sweeney, the duty forming the basis of Counts I, II, and VIII—the
duty not to intentionally inflict emotional distress on others—is “owed to the public
generally” and “independent of” State Defendants’ state employment. Richman,
270 F.3d at 441. Therefore, on this issue, State Defendants’ motion as to Counts I,
II, and VIII is denied.
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2.
Count III
Count III
Cause of Action
Relevant Named Defendant(s)
Negligent Supervision
1. Gomez
2. Lemke
In contrast to Counts I, II, and VIII, the conduct alleged in Count III cannot
be sufficiently separated from Defendants’ state employment. Under Illinois law, in
a cause of action for negligent supervision, the plaintiff must establish that: (1) the
employer had a duty to supervise its employee; (2) the employer negligently
supervised its employee; and (3) such negligence proximately caused the plaintiff's
injuries. Lansing v. Sw. Airlines Co., 980 N.E.2d 630, 634 (Ill. App. Ct. 2012).
In Count III, Plaintiff does not allege that Defendants Gomez and Lemke
acted “beyond the scope” of their authority through wrongful acts. See Richman,
270 F.3d at 441.
To the contrary, Plaintiff alleges that, by “negligently
supervis[ing] Defendants Egan and Combs,” Defendants Gomez and Lemke failed to
even act within the scope of their authority as Deputy Director of the Northern
Division of IDOC and Warden of Stateville, respectively. First Am. Compl. ¶ 85.
Furthermore, although Plaintiff alleges that “Defendants Gomez and Lemke
had a duty to supervise Defendants Egan and Combs,” id. ¶ 84, this duty derived
solely from Defendants Gomez and Lemke’s state employment. First Am. Compl.
¶¶ 7-8, 84.
That is, Defendants Gomez and Lemke possessed no supervisory
responsibility over Defendants Combs and Egan absent their respective state
positions. Returning to the principle promulgated in Sweeney, the Court’s analysis
“turns on the source of the duty the employee is claimed to have breached.”
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Sweeney, 2014 WL 1018190, at *7. Here, Defendants Gomez and Lemke’s duty to
supervise was not “owed to the public generally,” but rather wholly dependent on
“Defendants’ state employment.” Richman, 270 F.3d at 441.
Finally, the complained-of actions in Count III involve matters ordinarily
within Defendants Gomez and Lemke’s “normal and official functions of the State.”
Id. As Warden of Stateville, Defendant Lemke’s responsibilities included “overall
operations of the facility,” including “programs, operations, clinical, medical, [and]
budgetary.” State Defs.’ Rule 56.1 Statement of Facts [141] Attach. 10 at 9:12-16.
Defendant Lemke “oversaw all employees that worked for the facility,” including
Defendants Combs and Egan. Id. at 10:19-20. Similarly, as Deputy Director of the
Northern Division of IDOC, Defendant Gomez served as “the warden’s boss” and
ensured that “policies and procedures [were] followed.” Pl.’s Rule 56.1 Statement of
Additional Facts [159] Attach. 12 at 7:11-17, 8:5.
In short, the alleged conduct of Defendants Gomez and Lemke in Count III
can be attributed to the State.
Therefore, the doctrine of sovereign immunity
applies, and State Defendants’ motion as to Count III is granted. 4
Given this ruling, the Court need not address State Defendants’ alternative argument that
“Plaintiff has not presented evidence that Combs and Egan were unfit to act as correctional officers.”
State Defs.’ Mot. Summ. J. [140] 15.
4
20
C.
“De Minimis” Force and “Good Faith Effort” to Maintain and
Restore Discipline
Cause of Action
Count VI
Excessive Force Pursuant to
42 U.S.C. § 1983
Relevant Named
Defendant(s)
1. Nushardt
Next, State Defendants’ claim that Plaintiff’s excessive force claim (Count VI)
fails because Defendant Nushardt’s actions on March 7, 2013 constituted “de
minimis” force and a “good-faith effort to maintain and restore discipline.” State
Defs.’ Mem. Support Mot. Summ. J. [140] 12-13. The Court disagrees.
The “‘unnecessary and wanton infliction of pain’ on a prisoner violates his
rights under the Eighth Amendment.” Lewis v. Downey, 581 F.3d 467, 475 (7th Cir.
2009) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). However, the Eighth
Amendment “does not forbid every use of force against a prisoner.” Mitchell v.
Krueger, 594 F. App’x 874, 876 (7th Cir. 2014); id. (“not every ‘malevolent touch’ by
a security officer, however, implicates the Constitution”) (quoting Hudson v.
McMillian, 503 U.S. 1, 5 (1992)). The “use of de minimis force, so long as it ‘is not of
a sort repugnant to the conscience of mankind,’ is not of Eighth Amendment
concern.” Lewis, 581 F.3d at 475 (quoting Hudson, 503 U.S. at 9-10).
Thus, this Court must conduct a two-part inquiry. First, it must determine
“whether the force that [Plaintiff] describes rose above the de minimis level and
thus potentially amounted to an Eighth Amendment violation.” Fillmore v. Page,
358 F.3d 496, 504 (7th Cir. 2004). If the force applied is more than de minimis, the
Court must then determine whether it “was applied in a good-faith effort” to
21
maintain or restore discipline, or “maliciously and sadistically” to cause harm,
punish, or humiliate Plaintiff. Id.; Hudson, 503 U.S. at 7. Relevant factors for this
inquiry include “the need for an application of force, the relationship between that
need and the force applied, the threat reasonably perceived by the responsible
officers, the efforts made to temper the severity of the force employed, and the
extent of the injury suffered by the prisoner.” DeWalt v. Carter, 224 F.3d 607, 619
(7th Cir. 2000).
Regarding the last factor, “the use of excessive physical force
against a prisoner may constitute cruel and unusual punishment [even] when the
inmate does not suffer serious injury.” Hudson, 503 U.S. at 4. “[P]ain, not injury, is
the barometer by which” the Court conducts its analysis. Lewis, 581 F.3d. at 475.
1.
“De Minimis” Force
Here, Plaintiff alleges that when Defendant Nushardt entered Plaintiff’s cell
on March 7, 2013, Defendant Nushardt “slammed” his shield down “as hard as he
could” on Plaintiff’s right pinkie finger. First Am. Compl. [61] ¶ 47; State Defs.’
Rule 56.1 Statement of Facts [141] Attach. 1 at 112:16-19, 113:12-17, 114:14-15.
Moreover, the parties agree that Plaintiff “screamed out in pain” when Defendant
Nushardt placed his shield on Plaintiff’s back and hand. Pl.’s Rule 56.1 Statement
of Additional Facts [159] ¶ 26.
At their depositions, Plaintiff and Defendant
Nushardt also testified that Plaintiff let the tactical team “know they had re-broke”
his finger. Pl.’s Rule 56.1 Statement of Additional Facts [159] Attach. 1 at 113:1920, Attach. 11 at 30:22. Again, construing the facts in the light most favorable to
22
Plaintiff, this is sufficient to infer that the force used by Defendant Nushardt was
more than de minimis.
2.
“Good Faith Effort” to Restore Discipline
Nevertheless, Defendants argue that the force used by Defendant Nushardt
constituted a good faith effort to “maintain order in the prison when the Plaintiff
refused direct orders to cuff up.” State Defs.’ Mem. Supp. Mot. Summ. J. [140] 12.
Defendants claim that when Plaintiff failed to comply with the tactical team’s order
to “cuff up” at his cell door, Defendant Nushardt placed his shield on Plaintiff’s back
until he was placed in restraints. Id. ¶¶ 32-34. Given this context, Defendants
maintain that Defendant Nushardt’s use of his shield was due to concerns about the
“safety of staff and himself.” Id. ¶ 34; State Defs.’ Mem. Supp. Mot. Summ. J. [140]
Attach. 11 at 33:18-19.
Plaintiff, however, contradicts State Defendants’ version of events. Contrary
to Stateville procedures, Plaintiff claims that he never received an order to “cuff up”
at his cell door.
Instead, upon Defendant Nushardt’s arrival at Plaintiff’s cell,
Defendant Nushardt immediately ordered Plaintiff to lie on the bed and put his
hands behind his back. Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶¶ 2223.
Plaintiff claims that even though he complied with this order, Defendant
Nushardt approached and, without cause, purposely slammed his shield on
Plaintiff’s hand and back, intending to harm Plaintiff. Id. ¶ 25.
Plaintiff further alleges that, at the time, his right pinkie finger was wrapped
in gauze due to his previous injury.
First Am. Compl. [61] ¶ 47.
23
Defendant
Nushardt admitted that Plaintiff “might have” had an injured finger and that he
observed “some kind of wrapping on it” when he entered his cell. State Defs.’ Mem.
Supp. Mot. Summ. J. [140] Attach. 11 at 29:21-30:3. Given these facts, Plaintiff
infers that Defendant Nushardt “knew that Plaintiff’s hand was injured” at the
time Defendant Nushardt allegedly assaulted Plaintiff with his shield. Pl.’s Rule
56.1 Statement of Additional Facts [159] ¶ 24. Plaintiff buttresses this inference by
alleging the tactical team “cursed at,” “threatened,” and “taunted” Plaintiff
throughout the altercation.
Pl.’s Rule 56.1 Statement of Additional Facts [159]
Attach. 1 at 114:1-5.
For the purposes of summary judgment, this Court must construe all facts
and reasonable inferences in the light most favorable to Plaintiff. Hence, this Court
must accept as true, at this stage of the proceedings, Plaintiff’s claims that: (1)
Defendant Nushardt never ordered Plaintiff to “cuff up” near the cell door; (2)
Plaintiff immediately complied with Defendant Nushardt’s alternative order to lay
on the bed and put his hands behind his back; (3) Defendant Nushardt knew
Plaintiff’s finger was injured; (4) Defendant Nushardt “slammed” his shield onto
Plaintiff’s hand “as hard as he could”; and (5) the remaining tactical team “cursed
at,” “threatened,” and “taunted” Plaintiff. Based upon these claims, a reasonable
fact finder could conclude that Defendant Nushardt’s actions were unnecessary to
maintain order or restore discipline, and instead constituted a wanton infliction of
pain on Plaintiff. See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (shackling inmate to
hitching post was “obvious” Eighth Amendment violation if, as inmate alleged, his
24
threat to guards’ safety had abated); Mitchell, 594 F. App’x at 877. Therefore, State
Defendants’ motion as to Count VI is denied.
D.
“Substantial
Indifference”
Risk
of
Serious
Harm”
and
“Deliberate
Count VII
Cause of Action
Relevant Named Defendant(s)
Failure to Protect Pursuant
1. Gomez
to 42 U.S.C. § 1983
2. Lemke
State Defendants next argue that Plaintiff’s failure to protect claim (Count
VII) fails because Plaintiff cannot show that his prison conditions posed a
“substantial risk of serious harm” or that State Defendants acted with “deliberate
indifference.” Defs.’ Mem. Supp. Mot. Summ. J. [140] 10-11.
Just as “prison officials have a duty to protect prisoners from violence at the
hands of other prisoners,” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal
quotations omitted), an inmate has a constitutional right to be “secure in her bodily
integrity and free from attack by prison guards.” Castillo v. Day, 790 F.3d 1013,
1018 (10th Cir. 2015). However, a prison official cannot be liable for “denying an
inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
Thus, a claim that a prison official “was deliberately indifferent to such a risk has
both an objective and a subjective component.” Gevas v. McLaughlin, 798 F.3d 475,
480 (7th Cir. 2015). To succeed on a failure to protect claim, Plaintiff must prove
that: (1) he was incarcerated under conditions posing a substantial risk of serious
25
harm; and (2) Defendant-officials acted with deliberate indifference to that risk.
Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005) (quoting Farmer, 511 U.S. at 832).
1.
“Substantial Risk of Serious Harm”
To satisfy the first, objective prong, “a plaintiff must allege not only that he
or she experienced, or was exposed to, a serious harm, but also that there was a
substantial risk beforehand that that serious harm might actually occur.” Brown,
398 F.3d at 910. As to the alleged harm suffered, “‘the deprivation alleged must be
objectively, sufficiently serious,’ amounting to a ‘denial of the minimal civilized
measure of life’s necessities.’” Id. (quoting Farmer, 511 U.S. at 843). Ultimately,
the question is whether “custodial officials exposed a detainee to a sufficiently
substantial risk of serious damage to his future health.” Id. (emphasis in original)
(internal quotations omitted).
Regarding exposure to risk, “substantial risk” means a risk “so great that [it
is] almost certain to materialize if nothing is done.” Id. at 911. Such risks include
“risks attributable to detainees with known propensities of violence toward a
particular individual or class of individuals; to highly probable attacks; and to
particular detainees who pose a heightened risk of assault to the plaintiff.” Id.
(internal quotations omitted). In short, the “conditions presenting the risk must be
‘sure or very likely to cause . . . needless suffering,’ and give rise to ‘sufficiently
imminent dangers.’” Wilson v. Ryker, 451 F. App’x 588, 589 (7th Cir. 2011) (quoting
Baze v. Rees, 553 U.S. 35, 50 (2008) (Roberts, C.J., plurality opinion)).
As the
Seventh Circuit describes the concept: “a ‘substantial risk’ could exist where prison
26
officials place a detainee in a cell in which ‘they know that there is a cobra there or
at least that there is a high probability of a cobra there.’” Brown, 398 F.3d at 911
(quoting Billman v. Ind. Dept. of Corr., 56 F.3d 785, 788 (7th Cir. 1995)).
Here, Plaintiff adequately shows a “serious harm.” The Seventh Circuit has
consistently found physical assaults to be “sufficiently serious.” See, e.g., Borello v.
Allison, 446 F.3d 742, 745, 748 (7th Cir. 2006) (prisoner-on-prisoner assault with
radio); Budz, 398 F.3d at 907-08, 910-11 (prisoner “severely beat” by fellow
prisoner); White v. Lindbergh, No. 12-CV-0769-MJR-SCW, 2015 WL 274943, at *3
(S.D. Ill. Jan. 20, 2015) (“[t]he courts have found that an inmate who is assaulted
. . . has experienced a substantially serious harm”); Griffin v. Spiller, No. 03-CV-061
DRH, 2007 WL 2802607, at *5 (S.D. Ill. Sept. 24, 2007) (“[b]ecause Plaintiff has
demonstrated . . . that he did suffer injuries that were treated by medical personnel,
there is a genuine issue of material fact regarding whether Plaintiff was exposed to
a substantial risk of serious harm”). In short, being “violently assaulted in prison is
simply not ‘part of the penalty that criminal offenders pay for their offenses against
society.’” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347
(1981)).
Additionally, while a closer call—and dependent on the Court’s obligation to
construe all facts and reasonable inferences in Plaintiff’s favor—Plaintiff has also
established a triable issue regarding the existence of a substantial risk prior to his
alleged assault by Defendant Nushardt on March 7, 2013. According to Plaintiff’s
allegations, the tactical team physically abused him throughout his hunger strike.
27
Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶ 14; Pl.’s Rule 56.1 Statement
of Additional Facts [159] Attach. 1 at 85:24-87:10, 96:13-15; 90:22-91:1, 91:23-92:8.
This alleged physical abuse included unnecessarily “grabbing,” “pulling,” and
“jerking” Plaintiff’s injured finger, and slamming Plaintiff’s head into the wall. See
id. The record further shows that, at the time Plaintiff complained to Defendants
Gomez and Lemke on February 3, 2013, Stateville’s use of the tactical team to force
feed Plaintiff was likely to continue.
At that point, Plaintiff had supposedly
persevered in his protest for nearly four months with no end in sight. See Pl.’s Rule
56.1 Statement of Additional Facts [159] ¶ 7. During that period, the tactical team
was therefore called to force feed Plaintiff more than 50 times.
Statement of Additional Facts [159] Attach. 1 at 89:1-7.
Pl.’s Rule 56.1
Given the Plaintiff’s
allegations and the record as a whole, a reasonable fact finder could possibly
determine that Stateville tactical team members had “propensities of violence
toward a particular individual”—here, Plaintiff—and that further assaults were
“almost certain to materialize if nothing [was] done.” Brown, 398 F.3d at 911.
2.
“Deliberate Indifference”
Turning to the second, subjective prong, “deliberate indifference” means
“subjective awareness.”
Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004).
That is, “a plaintiff must establish that the official knew of the risk (or a high
probability of the risk) and did nothing.” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.
1996). Thus, “the subjective prong has two subparts: (a) knowledge of the risk and
(b) a disregard of that risk.” Arrieta v. Bass, No. 09C8034, 2010 WL 3404969, at *3
28
(N.D. Ill. Aug. 26, 2010).
A prisoner “normally proves actual knowledge of
impending harm by showing that he complained to prison officials about a specific
threat to his safety.”
McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991).
Knowledge, however, may also be proven through circumstantial evidence. Farmer,
511 U.S. at 843.
Once again construing all facts and reasonable inferences in his favor,
Plaintiff has created a triable issue regarding the subjective awareness of the above
risk on the part of Defendants Gomez and Lemke. On February 3, 2013, Plaintiff
purportedly complained to Internal Affairs that the tactical team slammed
Plaintiff’s head into the wall during that day’s force feed. Pl.s’ Rule 56.1 Statement
of Additional Facts [159] Attach. 1 at 95:23-96:1 Shortly thereafter, Defendants
Gomez and Lemke visited Plaintiff’s cell.
Id. at 95:22-96:6.
Given Defendants
Gomez and Lemke’s high leadership positions (as Deputy Director of the Northern
Division of IDOC and Warden of Stateville, respectively), it is reasonable to infer
that they visited Plaintiff’s cell in response to his complaint to Internal Affairs.
During this meeting, Plaintiff allegedly complained to Defendants Gomez and
Lemke about the unwarranted physical abuse he suffered at the hands of the
tactical team. Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶ 14. Specifically,
Plaintiff alleges that he explained to Defendants Gomez and Lemke “that the Tac
Team had been physically and emotionally abusing [him] throughout the duration
of his hunger strike.” Pl.s’ Rule 56.1 Statement of Additional Facts [159] Attach. 1
at 96:12-15. Plaintiff further told Defendants Gomez and Lemke that he “feared for
29
[his] safety and [he] wish[ed] they would . . . do something to ensure that . . . the
Tac Team didn’t continue to do what they were doing.” Id. at 97:2-5. On February
4, 2013, after Defendants Combs and Egan allegedly taunted Plaintiff and threw his
personal items in the trash, Plaintiff issued another emergency grievance to
Defendant Gomez. Id. 136:15-20.
Considering these facts together, it is reasonable to infer that Defendants
Gomez and Lemke were aware of a substantial risk that the tactical team was
operating outside the bounds of accepted procedure and inflicting unnecessary
physical and emotional harm on Plaintiff. In other words, these facts are sufficient
to show that Defendants Gomez and Lemke “knew of the risk (or a high probability
of the risk) and did nothing.” Pope, 86 F.3d at 92. State Defendants’ claim that
Plaintiff failed to put Defendants on notice of a specific risk of excessive force by
Nushardt misses the point. The deliberate indifference standard does not require
actual knowledge “of an individualized threat.”
Washington v. LaPorte Cty.
Sheriff’s Dep’t, 306 F.3d 515, 518 (7th Cir. 2002) (emphasis added).
30
E.
Intent to Inflict Severe Emotional Distress
Count I
Cause of Action
Relevant Named Defendant(s)
Intentional Infliction of
1. Combs
Emotional Distress
2. Egan
Count II
Cause of Action
Relevant Named Defendant(s)
Intentional Infliction of
1. Gomez
Emotional Distress
2. Lemke
Count VIII
Cause of Action
Relevant Named Defendant(s)
Intentional Infliction of
1. Larry
Emotional Distress
2. McGarvey
3. Pounovich
4. Rivera
5. Wilson
Under Illinois law, a plaintiff may recover damages for intentional infliction
of emotional distress if he establishes that: (1) the defendant’s conduct was extreme
and outrageous; (2) the defendant intended to inflict severe emotional distress or
knew that there was at least a high probability that his conduct would inflict severe
emotional distress; and (3) the defendant’s conduct did cause severe emotional
distress. Naeem v. McKesson Drug Co., 444 F.3d 593, 604-05 (7th Cir. 2006).
Here, both State Defendants and Mental Health Defendants attack the
second prong of Plaintiff’s prima facie case and claim that no Defendants
“intentionally took any action intended or likely to harm Plaintiff emotionally.”
Defs.’ Mem. Supp. Mot. Summ. J. [140] 14; Mental Health Defs.’ Mem. Supp.
Summ. J. [147] 9-10.
31
1.
Defendants Combs, Egan, Larry, McGarvey, and Wilson
Regarding Defendants Combs, Egan, and McGarvey, State Defendants’
merely cite their own disputed version of the facts:
McGarvey activated the tactical team pursuant to requests from
medical staff, and was not involved in the determination to place
Plaintiff on suicide watch . . . Egan and Combs simply removed excess
property pursuant to departmental policy.
Defs.’ Mem. Supp. Mot. Summ. J. [140] 14. Similarly, according to Mental Health
Defendants, “Defendants Larry and Wilson responded appropriately when
attempting to conduct crisis assessment.” Mental Health Defs.’ Mem. Supp. Summ.
J. [147] 10.
Defendants’ arguments are unavailing, because Defendants’ factual claims
are directly contested by Plaintiff. Contrary to State Defendants’ claim, Plaintiff
avers that Defendant McGarvey played a direct role in placing Plaintiff on suicide
watch.
Plaintiff testified that he heard Defendants McGarvey and Larry tell
Defendant Wilson, “we’re tired of this shit” and ordered that Defendant Wilson “put
[Plaintiff’s] ass on suicide watch” in order to break his hunger strike. Pl.’s Rule 56.1
Statement of Additional Facts [159] Attach. 1 at 63:1-64:2.
Additionally, Plaintiff claims that Defendants Combs and Egan went beyond
the simple removal of excess property and instead made disrespectful comments
about Plaintiff’s family while they threw his personal items in the trash. Id. at
100:3-104:11.
Finally, Plaintiff maintains that no legitimate basis existed for Defendants
Larry and Wilson to place Plaintiff on suicide watch. Plaintiff denies that he ever
32
exhibited suicidal ideations, or that he was aggressive, punched or kicked the door
of his cell, or threatened staff.
Pl.’s Resp. to Mental Health Defs.’ Rule 56.1
Statement of Facts [155] Attach. 1 at 67:1-3, Attach. 7 ¶ 5-6. Likewise, Plaintiff
denies that he ever informed Defendant Pounovich that he wanted to harm himself.
Id. at 149:5-150:12.
Taking Plaintiff’s version of events as true, as this Court must, these facts
could allow a reasonable fact finder to infer that these Defendants either intended
to inflict severe emotional distress or knew that there was a high probability of
doing so. Therefore, Defendants’ motions as they relate to Counts I and VIII and
Defendants Combs, Egan, Larry, McGarvey, and Wilson are denied.
2.
Defendants Gomez, Lemke, Pounovich, and Rivera
Plaintiff’s evidence falls short, however, as it relates to Defendants Gomez,
Lemke, Pounovich, and Rivera. Plaintiff alleges that Defendants Gomez and Lemke
ordered the conduct committed by Defendants Combs and Egan on February 4,
2013. First Am. Compl. ¶ 33. The record, however, is devoid of evidence that such
an order occurred.
During their depositions, neither Defendant Gomez nor
Defendant Lemke recalled having conversations with Defendants Combs and Egan
about Plaintiff’s hunger strike. Pl.’s Rule 56.1 Statement of Additional Facts [159]
Attach. 12 at 33:1-33:13; State Defs.’ Rule 56.1 Statement of Facts [141] Attach. 1 at
22:6-22:16, 53:1-53:4. To the contrary, Defendant Combs flatly denied speaking
with Defendants Gomez and Lemke about Plaintiff.
Statement of Facts [141] Attach. 4 at 41:17-41:22.
33
State Defs.’ Rule 56.1
Plaintiff also alleges that Defendants Gomez and Lemke ordered Plaintiff’s
transfer to Pontiac Correctional Center on March 11, 2013. First Am. Compl. [161]
¶ 70. Once again, the record betrays Plaintiff’s claim. Defendant Gomez testified
that a transfer coordinator located in Springfield, Illinois, not Defendant Gomez,
decides “the appropriate placement” for an offender. Pl.’s Rule 56.1 Statement of
Additional Facts [159] Attach. 12 at 34:16-24.
Furthermore, both Defendants
Gomez and Lemke either denied, or could not recall, being a part of Plaintiff’s
transfer. Id. at 33:2-3; Pl.’s Resp. to State Defs.’ Mot. Summ. J. [157] Attach. 10 at
46:23-47-22. In fact, at the time of their depositions, neither Defendant Gomez nor
Defendant Lemke could recall whether a transfer ever took place. Pl.’s Resp. to
State Defs.’ Mot. Summ. J. [157] Attach. 12 at 32:8-10, Attach. 10. at 46:2-4.
Plaintiff fails to present any evidence to combat these declarations. Plaintiff cannot
create a “triable dispute of fact” if his only evidence is that Defendant’s witnesses
are “not worthy of belief.” Cichon v. Exelon Generation Co., 401 F.3d 803, 815 (7th
Cir. 2005).
Regarding Defendant Pounovich, Plaintiff maintains that he never expressed
suicidal ideations, either to Defendant Pounovich or any other Stateville staff
member. Pl.’s Resp. to Mental Health Defs.’ Rule 56.1 Statement of Facts [155]
Attach. 1 at 67:1-3. According to Plaintiff, this fact calls into question Defendant
Pounovich’s statement to Defendant Wilson that Plaintiff “reported to [Stateville]
staff that he wanted to cut himself.” Pl.’s Rule 56.1 Statement of Additional Facts
[159] Attach. 16. However, even assuming that Plaintiff did not make such a report
34
merely leaves this Court with a single innocuous conclusion:
that Defendant
Pounovich provided incorrect information to Defendant Wilson. Without more (and
there is no more here), this fact does not establish that Defendant Pounovich
intentionally provided a mistaken account of Plaintiff’s mental state, or acted with
the purpose of inflicting severe emotional distress on Plaintiff. That is, the asserted
conflict between Plaintiff and Defendant Pounovich’s respective versions of events
says nothing of the motive underlying the discrepancy.
Plaintiff infers an ulterior motive due to the supposed “time and resources”
that Defendant Pounovich’s unit was forced to expend on Plaintiff’s hunger strike.
Pl.’s Resp. State Defs.’ Mot. Summ. J. [157] 1.
At her deposition, however,
Defendant Pounovich testified that she did not “remember [Plaintiff] specifically”
and did not “recall his specific hunger strike.” Pl.’s Resp. State Defs.’ Mot. Summ.
J. [157] Attach. 3 at 29:4-24. Yet, Defendant Pounovich did remember that “there
were numerous” hunger strikes during her time at Stateville, and that the prison
would conduct force feedings “for anybody that was on an extended hunger strike,”
not just Plaintiff. Id. at 31:19-21, 45:9-11. Most importantly, Defendant Pounovich
offered no indication that any hunger strike—let alone Plaintiff’s—created excessive
administrative, logistical, or budgetary burdens that might inspire her to retaliate
in the manner proffered by Plaintiff.
In short, Plaintiff presents insufficient
evidence to allow a reasonable fact finder to draw such a nefarious conclusion
regarding Defendant Pounovich’s intent.
35
Similarly, although Defendant Rivera acknowledged recording Plaintiff’s
attempted force feed on March 7, 2013, she denied being present at the time of
Plaintiff’s strip search. Pl.’s Rule 56.1 Statement of Additional Facts [159] Attach.
15 at 25:5-6, 29:7-9, 38:14-15, 56:6-7, 57:5-7, 66:8-18. Even assuming, arguendo,
that Defendant Rivera was present and recorded Plaintiff’s strip search, Plaintiff
presents no evidence that Defendant Rivera did so to emotionally injure Plaintiff.
Prior to March 7, 2013, Defendant Rivera did not have any interactions with
Plaintiff or even know that he was on a hunger strike. Id. at 27:14-20. Moreover,
unlike the leadership positions held by Defendant Gomez, Lemke, or Pounovich,
Defendant Rivera merely served as a Correctional Officer. Thus, Defendant Rivera
was even less likely to be motivated by the expenditure of inordinate time and
resources supposedly devoted to Plaintiff’s hunger strike. Most notably, Defendant
Rivera testified that she was unaware of any Stateville policies prohibiting the
presence of female correctional officers during male inmate strip searches. Id at
55:17-24.
Under the summary judgment standard, this Court construes “all inferences
in the non-movant's favor, but he is not entitled to the benefit of inferences that are
supported only by speculation or conjecture.” Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). Speculation does not “create a genuine issue of fact; instead, it creates a
false issue, the demolition of which is a primary goal of summary judgment.”
Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995). On this record, it
would be unreasonable to infer intent on the part of Defendants Gomez, Lemke,
36
Pounovich, and Rivera. Therefore, on this issue, State Defendants’ motion as it to
Counts II and VIII and these Defendants is granted.
F.
Retaliation Pursuant to 42 U.S.C. § 1983
Count IV
Cause of Action
Relevant Named Defendant(s)
Retaliation Pursuant to
1. Gomez
42 U.S.C. § 1983
2. Lemke
3. Larry
4. McGarvey
5. Pounovich
6. Wilson
Count V
Cause of Action
Relevant Named Defendant(s)
Retaliation Pursuant to
1. Nushardt
42 U.S.C. § 1983
Count IX
Cause of Action
Relevant Named Defendant(s)
Retaliation Pursuant to
1. Kartan
42 U.S.C. § 1983
Otherwise “permissible actions by prison officials can become impermissible
if done for retaliatory reasons.” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir.
2000). An act “taken in retaliation for the exercise of a constitutionally protected
right violates the Constitution.”
DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.
2000). To prevail on a First Amendment retaliation claim, Plaintiff must show that:
(1) he engaged in activity protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity in the future; and (3)
the First Amendment activity was at least a motivating factor in the Defendants’
decision to take the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866 (7th
Cir. 2012) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)) (internal
quotations omitted). Once a plaintiff “demonstrates that an improper purpose was
37
a motivating factor, the burden shifts to the defendant to show that the same
decision would have been made in the absence of the protected speech.” Zellner v.
Herrick, 639 F.3d 371, 379 (7th Cir. 2011). If the defendant “carries that burden,
the plaintiff must then demonstrate that the defendant’s proffered reasons for the
decision were pretextual and that retaliatory animus was the real reason for the
decision.” Id. For the purposes of summary judgment, “this means a plaintiff must
produce evidence upon which a rational finder of fact could infer that the
defendant’s proffered reason is a lie.” Id.
Here, both State and Mental Health Defendants argue that Plaintiff fails to
meet any element of a prima facie case. Each element will be discussed in turn.
1.
Protected Activity
First, Defendants argue that there “is no specific guarantee under the First
Amendment, or any other constitutional provision that protects inmate hunger
strikes.” State Defs.’ Mem. Supp. Summ. J. [140] 7; Mental Health Defs.’ Mem.
Supp. Summ. J. [147] 3 (“[Plaintiff] cannot show that he was engaged in an activity
protected by the First Amendment”).
Defendants overstate the law.
As the
Supreme Court stated in Texas v. Johnson:
The First Amendment literally forbids the abridgment only of “speech,”
but we have long recognized that its protection does not end at the
spoken or written word. While we have rejected the view that an
apparently limitless variety of conduct can be labeled “speech”
whenever the person engaging in the conduct intends thereby to
express an idea, we have acknowledged that conduct may be
sufficiently imbued with elements of communication to fall within the
scope of the First and Fourteenth Amendments.
38
In deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, we
have asked whether an intent to convey a particularized message was
present, and whether the likelihood was great that the message would
be understood by those who viewed it.
491 U.S. 397, 404 (1989) (emphasis added).
Although neither the Supreme Court nor the Seventh Circuit has directly
discussed the application of Texas v. Johnson to prisoner hunger strikes, the Fifth
Circuit took up the issue in Stefanoff v. Hays County, Tex. 154 F.3d 523, 527 (5th
Cir. 1998). In Stefanoff, the plaintiff was denied a discretionary “good time” credit
on a 180-day prison sentence. Id. at 524-25. In response, the plaintiff brought a §
1983 unlawful retaliation claim, alleging that the denial was based upon the
plaintiff exercising his First Amendment rights by engaging in a hunger strike. Id.
at 525-26. Citing Texas v. Johnson, the Fifth Circuit held that “a hunger strike may
be protected by the First Amendment if it was intended to convey a particularized
message.” Id. at 527.
District courts in the Second, Fifth, Seventh, and Ninth Circuits have echoed
Texas v. Johnson and Stefanoff. For example, in Owens v. Atchison, the pro se
plaintiff commenced a hunger strike in response to his prison’s failure to separate
the plaintiff from his allegedly disruptive cellmate. No. 14-CV-00055-JPG, 2015 WL
1404326, at *2 (S.D. Ill. Mar. 24, 2015). The plaintiff alleged that, in response,
prison officials retaliated against him by refusing to place him in protective custody
and ultimately transferring him to another correctional center. Id. Conducting a
preliminary review pursuant to 28 U.S.C. § 1915A, the court found that the
39
plaintiff’s hunger strike “appears to be activity protected under the First
Amendment.” Id. at *4 (citing Texas v. Johnson, 491 U.S. at 397; Stefanoff, 154
F.3d at 527); see also Dumbrique v. Brunner, No. 14-CV-02598-HSG, 2016 WL
3268875, at *7 (N.D. Cal. June 15, 2016); Singleton v. Mississippi Dep’t of Corr., No.
1:15CV43-LG-RHW, 2016 WL 2869790, at *2 (S.D. Miss. May 17, 2016), j. entered,
No. 1:15CV43-LG-RHW, 2016 WL 2892506 (S.D. Miss. May 17, 2016); Mitchell v.
Foster, No. 16-CV-00238-SMY, 2016 WL 2766748, at *4 (S.D. Ill. May 13, 2016);
Hogan v. Prince, No. CIV.A. 14-138-SDD, 2015 WL 4527683, at *5 (M.D. La. July
27, 2015); Baird v. Ochs, No. 15-CV-00261-MJR, 2015 WL 1578127, at *2 n.1 (S.D.
Ill. Apr. 2, 2015); Adkins v. Shinn, No. CIV. 14-00156 LEK, 2014 WL 2738531, at *4
(D. Haw. June 16, 2014) (“a plausible inference can be made that [the defendant]
intended to prevent [the plaintiff] from exercising his First Amendment right to free
speech by participating in a hunger strike”); Brown v. McGinnis, No. 05-CV-758S,
2012 WL 267638, at *3 (W.D.N.Y. Jan. 30, 2012) (court assumed, for the purposes of
evaluating summary judgment motions, “that a hunger strike is protected activity
in the context of a retaliation claim”); Brown v. Graham, No. 9:07-CV-1353 FJS
ATB, 2010 WL 6428251, at *16 (N.D.N.Y. Mar. 30, 2010), report and
recommendation adopted, No. 9:07-CV-1353 FJS ATB, 2011 WL 1213482 (N.D.N.Y.
Mar. 31, 2011), aff’d, 470 F. App’x 11 (2d Cir. 2012); Lee v. Burke, No. 07-CV-1718,
2007 WL 4608730, at *1 (W.D. La. Dec. 11, 2007), subsequently dismissed, 311 F.
App’x 700 (5th Cir. 2009).
40
Defendants’ reliance on Owens v. Hinsley, 635 F.3d 950 (7th Cir. 2011), is
misplaced. See State Defs.’ Mem. Supp. Summ. J. [140] 7; Mental Health Defs.’
Mem. Supp. Summ. J. [147] 4. In Owens v. Hinsley, the plaintiff began a hunger
strike “to protest what he viewed as indifference to his grievances about [living]
conditions.” Id. at 952. After more than 6 weeks, prison administrators obtained
an order from a state court allowing them to force feed Owens. Id. In response,
Owens filed an action under § 1983 alleging, in relevant part, that “his right to
peaceful demonstration was infringed when his second hunger strike was forcibly
ended.” Id. at 953 (internal quotations omitted). The Seventh Circuit affirmed
dismissal, holding that “an inmate conducting a hunger strike does not have a
constitutionally protected right to refuse life-saving medical treatment.” Id. at 954
(citing Freeman v. Berge, 441 F.3d 543, 546-47 (7th Cir. 2006)) (emphasis added).
Owens v. Hinsley is inapplicable to the present case. Owens merely addresses
whether a prisoner possesses a constitutional right to refuse life-saving medical
treatment during a hunger strike, not whether a hunger strike itself is
constitutionally protected. Pl.’s Resp. to State Defs.’ Mot. Summ. J. [157] 8 n. 2.
Here, Plaintiff’s First Amended Complaint does not contend that Defendants
violated his rights by force feeding him, a position he reaffirms in his response to
Defendants’ motions for summary judgment. See Pl.’s Resp. to Mental Health Defs.’
Mot. Summ. J. [154] 7 (“Plaintiff does not contend that he has a constitutionally
protected right to refuse life-saving medical treatment”). Rather, Plaintiff claims
that he has a constitutional right to protest his prison conditions “by engaging in a
41
hunger strike.” Id. Owens v. Hinsley does not speak to this issue. That Owens v.
Atchison, Mitchell v. Foster, and Baird v. Ochs—all Southern District of Illinois
cases—were all decided after Owens v. Hinsley, yet still confirmed the protection of
prisoner hunger strikes, affirms this interpretation.
In distinguishing Owens v. Hinsley, this Court, of course, does not find that
the First Amendment’s protections of a prisoner hunger strike are without limit.
The Supreme Court has long held that “reasonable ‘time, place and manner’
regulations” of communicative activity “may be necessary to further significant
governmental interests.”
Pell v. Procunier, 417 U.S. 817, 826 (1974) (quoting
Grayned v. City of Rockford, 408 U.S. 104, 115, (1972)). This principle is no less
applicable to inmate hunger strikes, where we must balance a prisoner’s freedom of
expression with the obvious “security considerations” attendant to the “the
involuntary confinement and isolation of large numbers of people, some of whom
have demonstrated a capacity for violence,” id., and the state’s substantial interests
in the protection and rehabilitation of inmates. See Koutnik v. Brown, 456 F.3d
777, 786 (7th Cir. 2006). Indeed, it is these very concerns that underlie the Seventh
Circuit’s rationale in Owens v. Hinsley.
Nevertheless, for the purpose of Defendants’ motions here, this Court need
not delineate the precise parameters of protected conduct under the hunger-strike
spectrum.
It is sufficient to say that, on these facts, Plaintiff’s actions are
constitutionally protected as to the alleged unreasonable force and purported
retaliation. Plaintiff initiated his hunger strike as a specific response to the alleged
42
lack of medical attention for his broken finger and his receipt of the three
disciplinary tickets in August 2012.
First Am. Compl. [61] ¶ 7.
Further, the
misconduct alleged by Plaintiff goes well beyond life-saving medical treatment.
Plaintiff maintains that he never “physical fought with the tactical team or medical
staff” during force feeds. Pl.’s Rule 56.1 Statement of Additional Facts [159] ¶ 10.
As discussed above, despite this alleged peaceful posture, Plaintiff was subjected to
repeated physical assaults gratuitous to Stateville’s force feeding process.
It is
untenable to hold that such actions, if true, are “reasonably related to a legitimate
penological interest.” Stefanoff, 154 F.3d at 527 (5th Cir. 1998).
2.
Deprivation
Defendants next argue that “Plaintiff cannot show that he suffered a
deprivation that would likely deter First Amendment activity in the future.”
Mental Health Defs.’ Mem. Supp. Summ. J. [147] 4; State Defs.’ Mem. Supp. Summ.
J. [140] 8.
Once again, Defendants miss the mark.
When evaluating the
deprivation element, courts consider whether the alleged actions “would deter a
person of ordinary firmness from exercising First Amendment activity in the
future.” Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) (citing Bart v. Telford,
677 F.2d 622, 625 (7th Cir.1982)). Since “there is no justification for harassing
people for exercising their constitutional rights, the effect of their conduct on
freedom of speech need not be great in order to be actionable.” Bennett v. Vill. of
Oak Park, 748 F. Supp. 1329, 1333 (N.D. Ill. 1990) (citing Bart, 677 F.2d at 625).
43
Here, Defendant Nushardt’s alleged act of intentionally slamming his shield
on Plaintiff’s injured hand and back is sufficient to meet this test. See Zitzka v. Vill.
of Westmont, 743 F. Supp. 2d 887, 917 (N.D. Ill. 2010) (finding defendants’ act of
forcefully throwing plaintiff against his car prior to arrest sufficient). The alleged
act
of Defendants McGarvey,
Pounovich,
Larry,
Wilson,
and Kartan in
impermissibly placing or keeping Plaintiff on suicide watch also satisfies the
deprivation standard. See Reynolds v. Mattson, No. 2:07-CV-59, 2008 WL 2704750,
at *2 (W.D. Mich. July 9, 2008) (“conditions imposed during suicide watch are such
that they would deter a person from engaging in protected conduct”). The same
goes for Defendants Gomez and Lemke’s alleged ordering of the disposal of
Plaintiff’s personal property and transferring Plaintiff to Pontiac Correctional
Center.
See Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (finding that
plaintiff suffered deprivation when transferred to new correctional facility); Adkins
v. McClanahan, No. 1:12CV00034, 2013 WL 942323, at *6 (W.D. Va. Mar. 11, 2013)
(a “person of ordinary firmness who had once had his personal property seized in
retaliation for exercising his free speech rights would certainly be chilled in
exercising those same rights in the future, lest further retaliatory action be taken”);
Albrecht v. Williams, No. CIV.A. 04-1895 (TJB), 2009 WL 3296649, at *17 (D.N.J.
Oct. 13, 2009) (“the threat of having one’s personal property destroyed is sufficient
to deter a person of ordinary firmness from exercising his or her First Amendment
rights”).
44
3.
Motivating Factor
Finally, Defendants claim that “Plaintiff cannot show that the First
Amendment activity was a motivating factor behind any alleged retaliatory action.”
Mental Health Defs.’ Mem. Supp. Summ. J. [147] 5; State Defs.’ Mem. Supp. Summ.
J. [140] 8. To establish a prima facie case of retaliation, a prisoner must show that
a protected activity “was at least a motivating factor in retaliatory action taken
against him.” Mays v. Springborn, 719 F.3d 631, 635 (7th Cir. 2013). That is,
Plaintiff must show “a causal link between the protected act and the alleged
retaliation.” Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Roger
Whitmore’s Automotive Servs., Inc. v. Lake County, Illinois, 424 F.3d 659, 669 (7th
Cir.2005)).
Plaintiff need not show that his actions were “the only factor that
motivated the defendants,” but he must show that they were “a motivating factor.”
Id. (emphasis added).
The evidence “used to establish this element may be either direct or
circumstantial.” Id. Direct evidence “is evidence which, if believed by the trier of
fact, will prove the particular fact in question without reliance upon inference or
presumption.” Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012). To show
direct evidence, “a prisoner plaintiff may [produce] evidence of a defendant’s
comments indicating that the defendant subjected the plaintiff to adverse treatment
because of the plaintiff's protected activity.” Johnson v. Kingston, 292 F. Supp. 2d
1146, 1154 (W.D. Wis. 2003).
45
Circumstantial evidence, on the other hand, “is evidence from which a trier of
fact may infer that retaliation occurred.” Kidwell, 679 F.3d at 965. Circumstantial
evidence may include, among other things, suspicious timing, ambiguous oral or
written statements, or behavior towards or comments directed at other members in
the protected group. Id. at 966.
a)
Defendants Larry, McGarvey, and Wilson
Construing all facts and reasonable inferences in favor of Plaintiff, a
reasonable fact finder could find that Defendants Larry, McGarvey, and Wilson
were motivated by a desire to stamp out Plaintiff’s hunger strike. At his deposition,
Plaintiff testified that on March 7, 2013, immediately before he was placed on
suicide watch, he observed Defendant Wilson converse with Defendants Larry and
McGarvey. Pl.’s Rule 56.1 Statement of Additional Facts [159] Attach. 1 at 62:1922. During this conversation, Plaintiff alleges that he overheard Defendant Larry
state to Defendant Wilson, “No, put his ass on suicide watch. That’s how you get
him off his hunger strike.” Id. at 63:22-24. He further alleges that he heard both
Defendants Larry and McGarvey state, “We’re tired of this shit,” and that their
basic statements were for Defendant Wilson to “put [Plaintiff] on suicide watch to
break [his] hunger strike.” Id. at 64:2-6. Additionally, Plaintiff maintains that no
legitimate basis existed for placing him on suicide watch. Plaintiff denies that he
ever exhibited suicidal ideations, or that he was aggressive, punched or kicked the
door of his cell, or threatened staff. Pl.’s Resp. to Mental Health Defs.’ Rule 56.1
Statement of Facts [155] Attach. 1 at 67:1-3, Attach. 7 ¶ 5-6.
46
Therefore,
Defendants’ motions as they relate to Count IV and Defendants Larry, McGarvey,
and Wilson are denied.
b)
Defendant Nushardt
While a closer call, Plaintiff presents similarly sufficient direct evidence in
regards to Defendant Nushardt. Plaintiff testified that during his hunger strike,
Defendant Nushardt told Plaintiff that he “better get [his] ass off this fucking
hunger strike” because he was “causing a lot of problems.” Pl.’s Resp. to Mental
Health Defs.’ Rule 56.1 Statement of Facts [155] Attach. 1 at 90:1-90:18. As with
McGarvey, such evidence supports a reasonable finding that Defendant Nushardt’s
alleged assault on March 7, 2013 was motivated by Plaintiff’s protected activity.
Therefore, State Defendants’ motion as it relates to Count V and Defendant
Nushardt is denied.
c)
Defendants Gomez, Lemke, Kartan, and Pounovich
In contrast, Plaintiff fails to present sufficient evidence regarding the
motivations of Defendants Gomez, Lemke, Kartan, and Pounovich. As discussed in
Section III.E.(2) above, there is no evidence that Defendants Gomez and Lemke
ordered Defendants Combs and Egan’s conduct on February 4, 2013 or Plaintiff’s
transfer on March 11, 2013, let alone that such orders were motivated by Plaintiff’s
hunger strike.
Similarly, even assuming, as Plaintiff alleges, that Plaintiff never
told Defendant Pounovich that he intended to cut himself, Plaintiff fails to show
that Defendant Pounovich intentionally fabricated a story to Defendant Wilson
because of Plaintiff’s protected activity.
47
Plaintiff suffers from the same deficiencies in regards to Defendant Kartan.
Plaintiff denies Defendant Kartan’s claims that, when Defendant Kartan evaluated
Plaintiff on March 9 and 10, Plaintiff was “easily irritable, became easily agitated
and remained unpredictable.” Mental Health Defs.’ Rule 56.1 Statement of Facts
[146] ¶ 42. Even if we accept Plaintiff’s version of events, however, Plaintiff fails to
provide evidence of Defendant Kartan’s retaliatory motive. To the contrary, the
record indicates that, at the time of Plaintiff’s hunger strike, Defendant Kartan only
worked weekends at Stateville, and saw Plaintiff on only two occasions. Pl.’s Resp.
to Mental Health Defs.’ Rule 56.1 Statement of Facts [155] Attach. 5 at 10:16-17,
29:9-12. Moreover, although Defendant Kartan knew in March 2013 that Plaintiff
was on a hunger strike, she did not know how long his hunger strike had persisted.
Id. at 74:11-16. Defendant Kartan never spoke with Defendants Larry, Wilson,
Gomez, Lemke, or McGarvey about Plaintiff. Id. at 25:12-14, 26:9-12, 65:17-66:4.
In short, when it comes to Defendants Gomez, Lemke, Kartan, and
Pounovich, Plaintiff fails to provide “a causal link between the protected act and the
alleged retaliation.” Woodruff, 542 F.3d at 551. Therefore, Defendants’ motions as
they relate to Count IV and those Defendants are granted.
IV.
Conclusion
In light of the foregoing, Defendants’ Motions for Summary Judgment [139] and
[145] are granted in part and denied in part as follows:
48
Cause of Action
Intentional Infliction
of Emotional Distress
Intentional Infliction
of Emotional Distress
Negligent
Supervision
Retaliation Pursuant
to 42 U.S.C. § 1983
Retaliation Pursuant
to 42 U.S.C. § 1983
Excessive Force
Pursuant to
42 U.S.C. § 1983
Failure to Protect
Pursuant to
42 U.S.C. § 1983
Intentional Infliction
of Emotional Distress
Retaliation Pursuant
to 42 U.S.C. § 1983
Named Defendant(s)
Count I
1. Combs
2. Egan
Count II
1. Gomez
2. Lemke
Count III
1. Gomez
2. Lemke
Count IV
1. Gomez
2. Larry
3. Lemke
4. McGarvey
5. Pounovich
6. Wilson
Count V
1. Nushardt
Granted or Denied
Denied
Denied
Granted
Granted
Granted
Granted
Granted
Denied
Granted
Denied
Granted
Denied
Denied
Count VI
1. Nushardt
Denied
Count VII
1. Gomez
Denied
2. Lemke
Denied
Count VIII
1. Larry
2. McGarvey
3. Pounovich
4. Rivera
5. Wilson
Count IX
1. Kartan
IT IS SO ORDERED
Denied
Denied
Granted
Granted
Denied
Granted
Entered:
Dated: July 27, 2016
___________________________________
John Robert Blakey
United States District Judge
49
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