Walker v. Harrington et al
Filing
200
ORDER granting in part and denying in part 176 Motion for Summary Judgment. See Memorandum and Order for details. At the close of the case, the Court DIRECTS the Clerk of the Court to enter judgment in favor of Defendant Jeff Hutchinson on all cl aims; enter judgment in favor of Christopher Fleming on all claims; enter judgment in favor of Atchison, Edwards and Harrington on Count I- failure to intervene; enter judgment in favor of Edwards, Ranson and Young on the Count III conditions of con finement claim; enter judgment in favor of all Defendants on Count IV substantive due process (state created danger) claim; enter judgment in favor of Defendants Harrington, Atchison, Edwards, and Fleming on Count VI - the conspiracy claim; enter ju dgment in favor of Harrington, Atchison, Ranson, Young and Fleming on Count V- retaliation claim and against Henry Walker.The remaining claims for trial are: Count I failure to intervene against Ranson and Young; Count II failure to protect agains t Atchison, Edwards, Harrington, Ranson and Young; Count III conditions of confinement against Atchison and Harrington; Count V retaliation against Defendant Edwards; Count VI- conspiracy against Ranson and Young; Count VII Intentional Infliction o f Emotional Distress; Count VII- negligent or willful and wanton conduct; Count IX state law claims of respondeat superior against Atchison and Harrington. The Court REMINDS the parties that this matter is set for settlement conference on April 9, 2020 at 9:00 a.m. Signed by Magistrate Judge Gilbert C. Sison on 3/13/2020. (klh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HENRY WALKER,
Plaintiff,
v.
MICHAEL ATCHISON,
KYLE EDWARDS,
CHRISTOPHER FLEMING,
RICHARD HARRINGTON,
JEFFREY HUTCHINSON,
RICHARD RANSON,
and CLAYTON YOUNG,
Defendants.
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Case No. 3:14-CV-0429-GCS
MEMORANDUM AND ORDER
SISON, Magistrate Judge:
INTRODUCTION AND BACKGROUND
Pending before the Court is Defendants’ motion for summary judgment (Doc. 176).
Plaintiff Henry Walker opposes the motion (Doc. 192).1 For the reasons delineated below,
the Court grants in part and denies in part the motion for summary judgment.
Walker, an inmate of the Illinois Department of Corrections (“IDOC”) previously
incarcerated at Menard Correctional Center (“Menard”), filed a pro se lawsuit pursuant
to 42 U.S.C. § 1983 for deprivations of his constitutional rights (Doc. 1). Walker alleges
that officials at Menard failed to protect him from being physically attacked by other
On July 28, 2016, the Court assigned attorney Vincenzo Field for Walker (Doc. 75). Thereafter,
attorneys Frank Newell, Tara Thompson, and Joshua Loevy entered appearances for Walker (Doc. 80, 91
and 134). On July 18, 2018, attorney Field was granted leave to withdraw as counsel for Walker (Doc.
163).
1
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inmates. Walker, through court appointed counsel, filed a Second Amended Complaint
containing allegations against Defendants Michael Atchison, Kyle Edwards, Christopher
Fleming, Richard Harrington, Jeffrey Hutchinson, Richard Ranson and Clayton Young
(Doc. 88). Walker’s second amended complaint contains the following counts:
Count I – failure to intervene in violation of the Eighth Amendment;
Count II – failure to protect in violation of the Eighth Amendment;
Count III – conditions of confinement claim in violation of the Eighth Amendment;
Count IV – substantive due process (state created danger);
Count V -retaliation for reporting to prison officials that his cellmate had two
deadly weapons in their shared cell;
Count VI – conspiracy;
Count VII – Illinois State law claim of intentional infliction of emotional distress;
Count VIII – Illinois State law claim for negligent or willful and wanton conduct;
Count IX – Illinois State law respondeat superior claims against Hutchinson,
Harrington and Atchison; and
Count X – Illinois State Law claim of indemnification.
(Doc. 88).
Defendants move for summary judgment arguing: (1) Defendant Hutchinson did
not work at Menard during any of the relevant times; (2) Walker cannot provide evidence
to support his failure to protect claim; (3) Walker’s failure to intervene claim is duplicative
of the failure to protect or, alternatively, Walker cannot provide evidence of failure to
intervene; (4) Walker cannot provide evidence to support his conditions of confinement
claim; (5) Walker’s substantive due process claim is duplicative; (6) Walker cannot
provide evidence to support his retaliation claim; (7) Walker’s conspiracy claim is
superfluous and he cannot provide evidence to support this claim; (8) Walker cannot
provide evidence to support his intentional infliction of emotional evidence claim; (10)
Walker’s respondeat superior claim is not a cognizable claim upon which relief may be
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granted; (11) Walker’s supplemental state law claims are barred by state sovereign
immunity and the Eleventh Amendment; and (12) Defendants are entitled to qualified
immunity. Walker counters that genuine issues of fact exist which entitles him to a trial.
As the motion for summary judgment is fully briefed, the Court turns to address the
merits of the motion.
FACTS
The following facts are taken from the record and presented in the light most
favorable to Walker, the non-moving party, and all reasonable inferences are drawn in
his favor. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
Walker was housed at Menard from late fall of 2010 until July 24, 2013. Defendant
Atchison was the Warden of Menard from December 11, 2011 through January 2013.
Defendant Harrington was the Warden of Menard from January 2013 through Walker’s
transfer from Menard.
On September 21, 2012, Walker reported that his cellmate had multiple weapons
in their cell. At this time, inmate Franklin Lofton was Walker’s cellmate and the leader of
a gang called the Four Corner Hustlers. That same day, Correctional Officer Defendant
Christopher Fleming conducted a search of the cell and found two homemade shanks
(knives). Defendant Fleming issued Walker an offender disciplinary report for dangerous
contraband, damage or misuse of property, and contraband/unauthorized property.
Lofton was also issued a disciplinary ticket.
As a result of the ticket, Walker was found guilty of the weapons violations and
was placed in segregation for six months. Walker was expected to be in segregation on
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this offense until March 2013. However, due to an administrative error, Walker was
released from segregation on October 4, 2012. Walker filed a grievance concerning his
early release on October 18, 2012. Walker’s correctional counselor acknowledged the
error, and after two weeks of being released from segregation Walker was returned to
segregation and stayed there until April 2013.
Similarly, Lofton was placed in
segregation for the same offense, and he was not released early like Walker. Walker
feared the early release would lead other inmates to believe he was an informant. Walker
believes that because he was inadvertently released from segregation he was labeled as a
“snitch.”
In April 2013, Walker was removed from segregation, and was assigned to Gallery
7 in the West House. This unit was designated for inmates who had assaulted staff or
been ticketed for weapons violations. Walker testified that from April 2013 to May 27,
2013, he was not threatened personally.
On May 27, 2013, around 2:30 p.m., Walker became aware of a threat against him.
Specifically, Walker learned that members of Lofton’s gang were targeting him on their
belief that Walker “snitched” on Lofton. After learning of the threat, Walker saw an
officer with badge number 9347, Officer Kyle Edwards. Walker informed Defendant
Edwards that his life was in danger, and he needed to speak with a lieutenant or a major.
Walker testified that Edwards responded, “Who are you getting ready to tell on now?”
and told him to tell the next shift. Walker claims that Defendant Edwards laughed at him
and stated, “A big guy like you shouldn’t have anything to worry about.” Prior to this
incident, Walker had filed a grievance against Defendant Edwards.
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Shortly thereafter, Walker, on the way to dietary with his cell block, alerted
Defendants Ranson, Young and an unknown lieutenant about the threat. Walker claims
that Defendants Ranson, Young and the lieutenant told him to keep moving or go without
eating. The officers did not offer Walker the option of protective custody. After the
second refusal of help, Walker felt that he could not get help from correctional staff, and
Walker headed to dietary.
At dietary, Walker was attacked by multiple inmates that were members of the
Four Corner Hustlers. Walker believes he was attacked for being a snitch, and that the
attack was in retaliation for Lofton’s punishment for possessing weapons. Walker was
beaten and stabbed 13 times with an eight-inch ice pick-style weapon. After the attack,
Walker was taken to an outside hospital for treatment of his injuries, which included a
partially collapsed lung.
Both Atchison, as Warden, and Harrington, as Assistant Warden, received a
September 21, 2012 email from Correctional Officer Phelps with a subject line of
“Homemade weapons found in North 2 cell 5-35.” The email informed them of the
discovery of the weapons in Walker’s and Lofton’s cell and the circumstances
surrounding the incident.
LEGAL STANDARDS
Summary judgment is proper only if the moving party can demonstrate there is
no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law. See FED. R. CIV. PROC. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any
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doubt as to the existence of a genuine issue of fact must be resolved against the moving
party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha Cnty.,
391 F.3d 837, 841 (7th Cir. 2004).
A moving party is entitled to judgment as a matter of law where the non-moving
party “has failed to make a sufficient showing on an essential element of h[is] case with
respect to which []he has the burden of proof.” Celotex, 477 U.S. at 323. A party asserting
that a fact is genuinely disputed must support that assertion by citing to particular
materials in the record or by showing that the materials in the record do not establish the
absence of a genuine dispute. See FED. R. CIV. PROC. 56. If the non-moving party does not
show evidence exists that would reasonably allow a fact-finder to decide in its favor on a
material issue, the court must enter summary judgment against the non-moving party.
See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The Court’s role at
summary judgment is not to evaluate the weight of evidence, to judge witness credibility,
or to determine the truth of the matter. Instead, the Court is to determine whether a
genuine issue of fact exists. See Nat’l Athletic Sportwear Inc. v. Westfield Ins. Co., 528 F.3d
508, 512 (7th Cir. 2008).
ANALYSIS
Defendant Hutchinson
First, Defendants argue that Hutchinson is entitled to summary judgment on all
the claims against him because he was not employed by IDOC during the relevant times
alleged in the second amended complaint. As to this argument, Walker’s brief in
opposition is silent. Further, the record reflects that Hutchinson worked for the IDOC
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from May 1, 1980 to February 2004, and from March 2016 until his retirement on
December 30, 2016. During his employment with the IDOC, Hutchinson was the Warden
of Menard from October 1, 2016 until December 30, 2016. The allegations in Walker’s
second amended complaint occurred in September 2012 through May 2013. Clearly,
Hutchinson was not personally involved in any of the alleged conduct contained in the
second amended complaint, and summary judgment is proper on the claims against him.
Defendant Fleming
Next, the Court finds that Defendant Fleming is entitled to summary judgment on
all the claims against him. A review of the record indicates that Fleming’s only
involvement in this case was his search of Walker’s and Lofton’s cell on September 21,
2012, and his issuance of a disciplinary report that same day. Clearly, Fleming was not
personally involved in any of the alleged conduct contained in the Second Amended
Complaint that gave rise to Walker’s claims, and summary judgment is proper on the
claims against him.
Failure to Protect (Count II)
As to the failure to protect claim, Defendants argue that Walker cannot establish
that Defendants were aware of any substantial risk of harm that Walker faced.
Specifically, Defendants Atchison and Harrington argue they had no actual knowledge
of a substantial risk of serious harm because Walker never conveyed any concerns to
them. Similarly, Defendants Edwards, Ranson and Young contend that Walker did not
present a specific threat to the attention of these three Defendants. Walker counters that
he has raised sufficient issues of material fact as to Defendants Atchison and Harrington
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and that he has satisfied the deliberate indifference prong as to Edwards, Ranson and
Young.
Prisons are by their nature danger places. See Farmer v. Brennan, 511 U.S. 825, 858
(1994) (Thomas, J., concurring). Under the Eighth Amendment, prison officials have a
duty “to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(internal quotation omitted); Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005). An Eighth
Amendment failure to protect claim arises when a plaintiff is incarcerated under
conditions posing a substantial risk of serious harm, and the defendant acts with
deliberate indifference to the prisoner’s health or safety. See Farmer, 511 U.S. at 834;
Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010).
An inmate can prevail on a claim that a prison official failed to protect him if the
official showed “deliberate indifference;” that is, that the defendant was subjectively
aware of and disregarded a “substantial risk of serious harm” to the inmate. Farmer, 511
U.S. at 837; Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008). To make a guard subjectively
aware of a serious risk of attack, the inmate must communicate a specific and credible
danger. See Santiago, 599 F.3d at 758–759; Santiago v. Lane, 894 F.2d 218, 220, 223–224 (7th
Cir. 1990); Young v. Selk, 508 F.3d 868, 873-874 (8th Cir. 2007). “[A] generalized risk of
violence is not enough, for prisons are inherently dangerous places.” Wilson v. Ryker, No.
11-2086, 451 Fed. Appx. 588, 589 (7th Cir. Dec. 12, 2011)(internal citations and quotations
omitted). Instead, a plaintiff must allege “a tangible threat to his safety or well-being”
and “a substantial risk of future harm.” Id. Prison officials must be aware of a specific,
impending, and substantial threat to Plaintiff’s safety. See Pope v. Shafer, 86 F.3d 90, 92
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(7th Cir. 1996). “A substantial risk of serious harm is one in which the risk is so great that
it is almost certain to materialize if nothing is done.” Wilson, 451 Fed. Appx. at 589.
Viewing these facts in the light most favorable to Walker, the undersigned finds
that there are questions of material fact that preclude summary judgment as to all these
Defendants. The record reflects that Walker specifically told Defendants Edwards,
Ranson and Young that he was going to be attacked, that these Defendants did nothing
to protect him, and he was attacked shortly thereafter. First, Walker told Defendant
Edwards that he was going to be attacked and Edwards responded, “Who are you getting
ready to tell on now?” and stated, “A bug guy like you shouldn’t have anything to worry
about.” Edwards also told him to wait until the shift change. Further, Walker told
Defendants Ranson, Young and an unknown lieutenant that he thought there was a threat
upon his life. These Defendants told Walker that he could either go eat at dietary or stay
in his cell. Had any of these Defendants acted, Walker would not have been in the
position to be attacked. Thus, the Court denies the motion for summary judgment as to
these Defendants.
Likewise, the Court finds that there are questions of material fact as to whether
Defendants Atchison and Harrington were deliberately indifferent to Walker as they
were aware of conflict between Walker and Lofton through a September 21, 2012 email
regarding the shakedown of the cell. The Court notes that as supervisors, Defendants
Atchison and Harrington can only be liable for their own actions. The doctrine of
respondeat superior is not applicable to § 1983 claims. A defendant can only be held liable
if he was “personally responsible for the deprivation of a constitutional right.” Sanville v.
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McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)(quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001)). An individual can only be held liable for his or her own personal
actions and their own knowledge, and they are not liable for the knowledge or action of
those individuals whom they supervise. See Vinning-El v. Evans, 657 F.3d 591, 592 (7th
Cir. 2011); Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009).
“[S]upervisors who are merely negligent in failing to detect and prevent
subordinates’ misconduct are not liable.” Chavez, 251 F.3d at 651. However, a supervisor
can be personally involved in the violation when he “acts or fails to act with a deliberate
or reckless disregard of [a] plaintiff’s constitutional rights, or if the conduct causing the
constitutional deprivation occurs at her direction or with her knowledge or consent.”
Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986); Sanville, 251 F.3d at 740. “Supervisors
must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye
for fear of what they might see.” Backes v. Village of Peoria Heights, Ill., 662 F.3d 866, 870
(7th Cir. 2011)(quoting Chavez, 251 F.3d at 651). A supervisor is liable only for his own
misconduct. See Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015). While the Court notes
that the evidence regarding this claim against Defendants Atchison and Harrington is
slim, the Court finds there is enough evidence that a jury must determine whether both
Atchison and Harrington were aware of the need to protect Walker and failed to do so.
Failure to Intervene (Count I)
As to this claim, Defendants argue that this claim is identical to the failure to
protect claim regarding the May 27, 2013 attack, thus, Defendants assert that Walker
cannot recover twice for the same injury. Further, Defendants argue that Walker cannot
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show that there was a constitutional violation to which any Defendant could have
reasonably intervened. The Court rejects Defendants’ argument that this claim is identical
to the failure protect claim and declines to dismiss the claim at this stage of the
proceedings. While the claims are based on a similar set of facts, the elements for these
claims are different.
The Seventh Circuit recognizes the “failure to intervene” basis for a constitutional
violation under the Eighth Amendment. See Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.
2005)(citing Fillmore v. Page, 358 F.3d 496, 506 (7th Cir. 2004); Crowder v. Lash, 687 F.2d 996,
1005 (7th Cir. 1982)). To succeed on this claim, Walker must demonstrate that the
Defendants (1) knew that a constitutional violation was committed; and (2) had a realistic
opportunity to prevent it. See Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). An inmate
asserting a failure to intervene claim against officers who were present when the inmate’s
constitutional rights were violated by a different officer must show that the officers had
reason to know that excessive force was being used and the officers “had a realistic
opportunity to intervene to prevent the harm from occurring.” Lewis v. Downey, 581 F.3d
467, 472 (7th Cir. 2009).
Again, viewing the evidence in the light most favorable to Walker, the Court finds
that Walker survives summary judgment on this claim against Defendants Young and
Ranson. Here, it is plausible that Walker could show that his rights were violated when
Walker informed both Defendants Young, Ranson and the unknown lieutenant that his
life was in danger and they refused to help him. Thus, the question of whether they both
failed to intervene is one left for the jury to decide. However, the Court finds that
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summary judgment is proper as to Defendants Edwards, Atchison and Harrington on the
failure to intervene claim as there is no evidence to support the claim against them.
Conditions of Confinement (Count III)
To succeed on a claim related to conditions of confinement, a plaintiff must
establish both an objective and subjective element. See Grieveson v. Anderson, 538 F.3d 763,
775 (7th Cir. 2008). As to the objective element, a prisoner must establish that the
conditions deny him “the minimal civilized measure of life’s necessities,” creating an
excessive risk to the prisoner’s health or safety. Farmer, 511 U.S. at 834. To do so, he must
show the conditions resulted in an unquestioned and serious deprivation of basic human
needs such as food, medical care, sanitation, or physical safety. See Rhodes v. Chapman,
452 U.S. 337, 347 (1981).
The subjective component of a claim for unconstitutional conditions of
confinement requires demonstrating that a defendant had a culpable state of mind, that
is the defendant acted with deliberate indifference to a substantial risk of serious harm to
the prisoner. See Farmer, 511 U.S. at 837, 842. While mere negligence does not amount to
a constitutional violation, a plaintiff satisfies the deliberate indifference standard by
showing that a prison official acted, or failed to act, despite the official’s knowledge of a
substantial risk of serious harm from the alleged unconstitutional conditions. See Farmer,
511 U.S. at 842; Davidson v. Cannon, 474 U.S. 344, 347-348 (1986). That is, prison officials
must act to prevent “unreasonable peril” or to address “preventable, observed hazards
that pose a significant risk of severe harm to inmates.” Anderson v. Morrison, 835 F.3d 681,
683 (7th Cir. 2016).
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As with the failure to intervene claim, Defendants argue that Walker cannot
recover twice for the same injury; that this claim is duplicative of his failure to protect
and failure to intervene; and that summary judgment in favor of Defendants on this claim
is proper. While the Court agrees with Defendants that Walker cannot recover twice for
the same injury seeking the same set of damages, the Court notes that plaintiff is entitled
to plead and present alternate theories. Therefore, the Court will properly instruct the
jury on damages at that time.
Further, Defendants argue that summary judgment is proper on this claim as
Walker cannot provide evidence that any of the Defendants were aware that his
conditions of confinement posed a specific threat to his safety or that Defendants
consciously subjected Walker to these conditions. As addressed in the failure to protect
claim, the Court finds that a reasonable jury could conclude that Atchison and Harrington
had direct knowledge of a serious credible threat to Walker’s safety and failed to take any
steps to protect him. Thus, the Court denies that motion for summary judgment as to the
conditions of confinement claim as to Atchison and Harrington and grants the motion as
to the remaining Defendants.
Substantive Due Process (State created danger) (Count IV)
Defendants argue that they are entitled to summary judgment on Walker’s
substantive due process (state created danger) claim because it cannot be brought as a
claim separate from Walker’s Eighth Amendment claims. Walker counters that this claim
is separate and distinct from his other claims, thus, he may bring this claim as well.
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The Supreme Court has held that in the context of unnecessary and wanton
infliction of pain in penal institutions, the Eighth Amendment serves as the primary
source of substantive protection for convicted prisoners. See Whitley v. Albers, 475 U.S.
312, 327 (1986). Under these circumstances, the Due Process Clause of the Fourteenth
Amendment does not provide a prisoner any more protection than the Cruel and
Unusual Punishment Clause of the Eighth Amendment. Id. See also Pyles v. Fahim, 771
F.3d 403, 408-409 (7th Cir. 2014). When a constitutional amendment “provides an explicit
textual source of constitutional protection” for certain actions, a prisoner may not also
bring that same claim under the notion of substantive due process. Graham v. Connor, 490
U.S. 386, 395 (1989). See also United States v. Lanier, 520 U.S. 259, 272 n.7 (1997).
Defendants are correct, and Walker cannot bring a § 1983 claims based on
substantive due process in the same complaint as his Eighth Amendment claims. See
Graham, 490 U.S. at 395. Therefore, the Court grants summary judgment in favor of
Defendants and against Walker on Count IV – substantive due process (state created
danger).
Retaliation (Count V)
Next, Defendants contend that Walker does not have evidence to support his
claims that Defendants failed to intervene or failed to protect him from serious harm, and
that Walker does not have evidence to show that any of the other alleged actions are
connected to the purported protected conduct. Walker contends that Defendant Edwards
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retaliated against him by refusing to help and by refusing to protect him from harm
because Walker previously filed a grievance against Edwards.2
To prevail on his First Amendment retaliation claim, Plaintiff Walker must show
that: (1) he engaged in activity protected by the First Amendment; (2) Defendants took
actions that would deter a person of “ordinary firmness” from engaging in the protected
activity; and (3) the First Amendment activity was at least a “motivating factor” in
Defendants’ decision to take those actions. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009); Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013); Kidwell v. Eisenhauer, 679 F.3d
957, 965 (7th Cir. 2012). It is “common knowledge that snitches face unique risks in
prison” Dale v. Poston, 548 F.3d 563, 570 (7th Cir. 2008).
The undersigned finds that a reasonable juror could find that Defendant Edwards
failed to protect Walker in retaliation for filing a past grievance against him. A reasonable
jury could conclude the comments Defendant Edwards supposedly made after Walker
asked for protection coupled with Walker filing a grievance against Edwards is sufficient
to establish disputes of fact regarding Walker’s claim of retaliation. Thus, the Court also
denies summary judgment as to this issue as to Edwards and grants as to the other
Defendants.
The Court notes that while Walker’s retaliation claim in the Second Amended Complaint is
against all the named Defendants his brief only addresses the claim as if it were against Defendant
Edwards. Thus, the Court treats the retaliation claim the same as being only asserted against Defendant
Edwards.
2
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Conspiracy (Count VI)
Defendants argument as to Walker’s conspiracy claim is twofold: (1) Walker’s
claim is unnecessary as all Defendants are state actors, and (2) Walker lacks evidence to
show a meeting of the minds.
Walker counters that Defendants misconstrue his
conspiracy claim as brought under 42 U.S.C. § 1985(3), when it is a claim brought under
42 U.S.C. § 1983. Walker also counters that he has presented enough evidence to support
his conspiracy claim in that Defendants Ranson and Young conspired with an unknown
lieutenant.3
To prevail on a conspiracy claim, “the plaintiff must show that (1) the individuals
reached an agreement to deprive him of his constitutional rights, and (2) overt acts in
furtherance actually deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500,
510 (7th Cir. 2015). Put differently, Walker must “show an underlying constitutional
violation” and “demonstrate that the defendants agreed to inflict the constitutional
harm.” Hurt v. Wise, 880 F.3d 831, 842 (7th Cir. 2018), overruled in part on other grounds
by Lewis v. City of Chicago, 914 F.3d 472 (7th Cir. 2019) (noting that Fourth Amendment,
not Due Process Clause, governed claim for wrongful pretrial detention). “Because
conspiracies are often carried out clandestinely and direct evidence is rarely available,
3
Walker’s second amended complaint brings the conspiracy claim against all Defendants.
However, in response to the motion for summary judgment, Walker specifically states “Plaintiff has
satisfied this requirement as to Defendants Ransom[] and Young and Plaintiff has put forth evidence that
Ransom[] and Young conspiring together or in combination with an unknown lieutenant.” (Doc. 192, p.
27). Therefore, the Court will consider this claim against only Ranson and Young.
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plaintiffs can use circumstantial evidence to establish a conspiracy, but such evidence
cannot be speculative.” Beaman, 776 F.3d at 511
The Court rejects Defendants argument that the conspiracy claim is unnecessary.
Although the Seventh Circuit has held that conspiracy claims for the violation of
constitutional rights are superfluous when all the actors involved are state employees,
those cases appear to have involved claims or analysis under 42 U.S.C. § 1985.4 See Scott
v. City of Chicago, No. 15-1281, 619 Fed. Appx. 548, 548 (7th Cir. Nov. 2, 2015)(stating that
“[a]ll of the employees of the defendants in this suit, however, are public employees (plus
their employer), which means that a conspiracy claim has no role to play.”);5 Turley v.
Rednour, 729 F.3d 645, 649 (7th Cir. 2013)(noting that “Turley’s conspiracy claim [under
42 U.S.C. § 1985] is superfluous in light of the fact that all named defendants are state
actors”).6
Here, Walker brought his claim pursuant to 42 U.S.C. § 1983, thus Defendants
citation to 42 U.S.C. § 1985(3) is inapposite. Further, the Seventh Circuit issued a decision
suggesting that a plaintiff may simultaneously pursue substantive and conspiracy claims
Subsection 3 of 42 U.S.C. § 1985 provides a right of action against private citizens who conspire
with public officials to deprive individuals of their constitutional rights who would otherwise be immune
to suit under 42 U.S.C. § 1983. 42 U.S.C. § 1985(3).
4
The Seventh Circuit found: “A conspiracy between private parties and state actors authorizes suit
against the private parties in federal court.” Scott, 619 Fed. Appx. at 548.
5
While the Turley court noted that, “Turley’s conspiracy claim is superfluous in light of the fact
that all named defendants are state actors,” it explicitly noted that the conclusion was in the context of §
1985 claim. 729 F.3d at 649, 649, n. 2 (“As we noted in Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009),
the function of a conspiracy claim under 42 U.S.C. § 1985(3) is to ‘permit recovery from a private actor
who has conspired with state actors.’ … When, as here, the defendants are all state actors, ‘a § 1985(3)
claim does not add anything except needless complexity.’[]”) (citation omitted).
6
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under 42 U.S.C. § 1983. See. e.g., Daugherty v. Page, 906 F.3d 606, 610, 612 (7th Cir.
2018)(concluding plaintiff had produced inadequate evidence to defeat summary
judgment on his § 1983 conspiracy claim against state officials, but noting that the district
court had erred in granting summary judgment against him on his First Amendment
retaliation claim). Thus, the Court denies Defendants’ motion for summary judgment
based on this argument.
Next, Defendants merely argue that there was no meeting of the minds because
Defendants worked on different shifts and at different parts of the prison. In response,
Walker claims that the evidence describes a conspiracy in which Defendants Young and
Ranson, as well as an unknown lieutenant were all present together at the same time
when he told them his life was in danger and they did nothing to help him. Based on the
evidence contained in the record, the Court finds a reasonable jury could infer that these
three officers shared a mutual agreement and a strategy to violate Walker’s constitutional
rights by failing to provide him with protection. Thus, the Court denies the motion as to
Defendants Ranson and Young and grants the motion as to the other Defendants.
Intentional Infliction of Emotional Distress (Count VII)
To survive summary judgment on his IIED claims, Walker must show that: “(1) [
Defendants’] conduct was extreme and outrageous; (2) [Defendants] either intended to
inflict severe emotional distress or knew that there was at least a high probability that
[they] would inflict severe emotional distress; and (3) the conduct did cause severe
emotional distress.” Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 626 (7th Cir.
2010)(citing Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003)). Illinois courts have
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required a “heightened level of egregiousness” and conduct that has been “outrageous”
and “extreme” to maintain an IIED claim. “IIED requires more than ‘mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.’” McGrath v.
Fahey, 533 N.E.2d 806, 809 (Ill. 1988) (citation and internal quotation marks omitted).
Under Illinois law, a defendant’s conduct must be such that the “‘recitation of the
facts to an average member of the community would arouse his resentment against the
actor, and lead him to exclaim: Outrageous!’” Honnaker v. Smith, 256 F.3d 477, 490 (7th
Cir. 2001) (citations omitted). In McGrath, for example, the Supreme Court of Illinois cited
non-exclusive factors which can help inform this rather fluid standard. See McGrath, 533
N.E.2d at 809–810. One factor that influences the extreme and outrageous nature of the
conduct is the degree of power or authority that the actor has over the plaintiff. Id.
Viewing the facts in the light most favorable to Walker, the Court finds that he has
presented sufficient questions of material fact that a jury should decide. A reasonable
jury, for example, could conclude that failing to protect an inmate from an attack from
another inmate despite having knowledge of the attack constitutes intentional infliction
of emotional distress.
This conduct could also “go beyond all possible bounds of
decency.” Accordingly, the Court denies the Defendants’ motion for summary judgment
regarding Walker’s claims for intentional infliction of emotional distress.
Negligence and/or Willful and Wanton Conduct (Count VIII)
The essential elements of a cause of action based on common law negligence in
Illinois are the existence of a duty owed by the defendant to the plaintiff, breach of that
duty, and an injury caused by that breach. See Clifford v. Wharton Business Group, L.L.C.,
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353 Ill. App. 3d 34, 40 (Ill. App. 2004)(citing Ward v. K Mart Corp., 136 Ill. 2d 132, 140 (Ill.
App. 1990) ). Illinois common law does not have a “separate and independent tort of
willful and wanton misconduct.” Sparks v. Starks, 856 N.E.2d 575, 578 (Ill. App. Ct. 2006).
Instead, “[w]illful and wanton misconduct is essentially an aggravated form of
negligence, regarded as a hybrid between conduct considered negligent and conduct
considered intentionally tortious.” Id. at 577. To prevail on a claim of willful and wanton
misconduct, Walker must establish the elements of a negligence claim in addition to
showing the Defendants had “either a deliberate intention to harm or a conscious
disregard for the plaintiff’s welfare.” Jane Doe-3 v. McLean County Unit Dist. No. 5 Bd. of
Dirs., 973 N.E.2d 880, 887 (Ill. 2012).
Courts have held that there is no meaningful difference between “willful and
wanton” and “deliberate indifference” as used in federal constitutional law. See Chapman
v. Keltner, 241 F.3d 842, 847 (7th Cir. 2001) (stating that “[w]e have found that the standard
for assessing whether conduct is willful and wanton is remarkably similar to the
deliberate indifference standard.” (internal quotation marks omitted)). Because the Court
found questions of material fact regarding the failure to protect, the failure to intervene
and the conditions of confinement claims, the Court likewise finds question of material
fact exist as to the willful and wanton claims that preclude summary judgment as to the
claims against Defendants Atchison, Harrington, Edwards, Ranson and Young.
Respondeat Superior (Count IX)
Defendants argue they are entitled to summary judgment on the respondeat superior
claim because Walker brought this action pursuant to 42 U.S.C. § 1983 and claims for
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respondeat superior are not allowed in §1983 actions. Further, Defendants argue that
Walker cannot show that any Defendant violated his constitutional rights, and thus,
Atchison and Harrington cannot be found liable.
As stated previously, “[i]t is well established that there is no respondeat superior
liability under §1983.” Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010); Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). “Liability under § 1983 is direct rather than
vicarious; supervisors are responsible for their own acts but not for those of subordinates,
or for failing to ensure that subordinates carry out their tasks correctly.” Horshaw v.
Casper, 910 F.3d 1027, 1029 (7th Cir. 2018).
Here, Walker brings this claim, Count IX, against Atchison, Harrington and
Hutchinson based on Illinois state law. (Doc. 88, p. 15). Thus, to the extent that Walker’s
1983 claims are based solely on the acts of subordinates, Walker cannot maintain § 1983
causes of actions against them. To the extent that Walker alleges IDOC policy violations,
such claims fail to state a constitutional claim. See Waubanascum v. Shawano County, 416
F.3d 658, 670 (7th Cir. 2005)(noting that a violation of state law does not provide a basis
for liability under §1983). Accordingly, Walker cannot bring Section 1983 claims against
Atchison and Harrington based solely on their positions as administrators of the facility.
However, as to the state law claims, Illinois as a general matter, recognizes the
respondeat superior doctrine. See Adames v. Sheahan, 909 N.E.2d 742, 755 (Ill. 2009). See also
Doe v. City of Chicago, 360 F.3d 667, 670 (7th Cir. 2004). Thus, based on the previous
analysis, supra, the Court finds that genuine issues of material fact preclude summary
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judgment as to Atchison and Harrington on the state law respondeat superior claims. Thus,
the Court denies this portion of the motion for summary judgment.
Indemnification (Count X)
On May 1, 2017, Judge Rosenstengel denied Defendant’s motion to dismiss as to
this Count noting, “Walker also indicates he did not intend to bring a claim for
indemnification; rather, his Second Amended Complaint only indicates that Defendant
Officers are indemnified by the State under the State employee Indemnification Act, 5
ILSC § 350, et seq. Accordingly, Walker asserts there is simply no claim for
indemnification for the Court to dismiss.” (Doc. 109, ps. 2, 4).
Qualified Immunity
Further, the undersigned finds that Defendants are not entitled to qualified
immunity. In 2013, it was clearly established that the risk of an attack by a cellmate
constitutes a risk of serious harm, and that prison officials may not retaliate against
inmates for filing grievances. See Farmer, 511 U.S. at 833 (stating that “prison officials have
a duty . . . to protect prisoners from violence at the hands of other prisoners.”). See also
Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006); Pope, 86 F.3d at 92. DeWalt v. Carter,
224 F.3d 607, 618 (7th Cir. 2000), abrogated on other grounds by Savory v. Cannon, 947 F.3d
409 (7th Cir. 2020)(noting that prison officials may not retaliate against inmates for filing
grievances).
State Sovereign Immunity
The Illinois State Lawsuit Immunity Act provides that the State shall not be made
a defendant in any Court except as provided in either the Public Labor Relations Act (not
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an issue here) or the Court of Claims Act. See 745 ILL. COMP. STAT. § 5/1. State sovereign
immunity rules apply to state law causes of action brought in federal court against state
officials. See Omosegbon v. Wells, 335 F.3d 668, 673 (7th Cir. 2003). The Illinois State Lawsuit
Immunity Act provides that the state cannot be sued unless one of a limited number of
exceptions applies. See 745 ILL. COMP. STAT. § 5/1. One such exception is found in the
Illinois Court of Claims Act, which requires all claims against the state “sounding in tort”
to be heard in that court. 705 ILL. COMP. STAT. § 505/8(d). See also Jinkins v. Lee, 807 N.E.2d
411, 417 (2004). Thus, if Walker’s state law claims are being brought against the state itself
rather than against Defendants individually, the claim must be litigated in the Illinois
Court of Claims. See Jinkins, 807 N.E.2d at 417.
The determination of whether a state law claim is being brought against the state
depends on the “issues raised” and the “relief sought,” rather than on the formal
designation of the parties. Fritz v. Johnston, 807 N.E.2d 461, 466 (2004). An action is
considered to be against the state if the following factors exist: there are no allegations
that the defendant acted beyond the scope of his office’s authority through wrongful acts;
the duty alleged to have been breached was not owed to the public generally independent
of the fact of state employment; and the complained-of actions involve matters ordinarily
within the defendant's official functions. See Richman v. Sheahan, 270 F.3d 430, 441 (7th
Cir. 2001); Healy v. Vaupel, 549 N.E.2d 1240, 1247 (1990); Turpin v. Koropchak, 567 F.3d 880,
883 (7th Cir. 2009).
Sovereign immunity affords no protection when it is alleged that the defendant
acted with malice. See Welch v. Ill. Supreme Court, 751 N.E.2d 1187, 1197 (2001). “Malice”
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in this context means “the intentional doing of a wrongful act without just cause or
excuse, with an intent to inflict an injury or under circumstance that the law will imply
an evil intent.” Mgmt. Ass'n of Ill., Inc. v. Bd. of Regents of N. Ill. Univ., 618 N.E.2d 694, 705
(1993). Further, the “doctrine of sovereign immunity affords no protection when it is
alleged that the State’s agent acted in violation of statutory or constitutional law or in
excess of his authority.” Leetaru v. Bd. of Trustees of Univ. of Illinois, 32 N.E.3d 583, 596 (Ill.
2015). Accord Murphy v. Smith, 844 F.3d 653, 658-659 (7th Cir. 2016).
Here, Walker alleged that Defendants not only committed the state law torts of
IIED, willful and wanton conduct and respondeat superior, but also that they violated the
Eighth Amendment. There is disputed evidence that Defendants infringed upon
Walker’s constitutional rights. As stated previously in this Order, no prison official has
the authority to ignore a prisoner’s request for protection from an attack from another
inmate. Thus, the evidence in this case establishes a genuine issue of fact as to whether
Defendants were deliberately indifferent to Walker in violation of the Eighth
Amendment. Consequently, Walker’s state law claims against Defendants can proceed in
this Court without offending the Illinois doctrine of sovereign immunity.
Public Official Immunity
Public official immunity is a common law doctrine that dictates public officials are
immune from individual liability for “the performance of discretionary duties performed
in good faith” and “unique to the particular public office.” Currie v. Lao, 592 N.E.2d 977,
984 (Ill. 1992); Kinzer v. City of Chi., 539 N.E.2d 1216, 1220 (Ill. 1989). Defendants argue
that they are entitled to public official immunity on the state-law tort claim for willful
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and wanton conduct because they were performing discretionary acts that are authorized
by law and that Walker’s allegations fail to rise beyond the scope of public official
immunity. The Court rejects Defendants’ argument. The evidence before the Court
establishes issues of material fact as to whether they performed their duties in good faith.
Thus, the Court denies the motion for summary judgment based on public official
immunity.
CONCLUSION
Accordingly, the Court GRANTS in part and DENIES in part the motion for
summary judgment (Doc. 176). The motion is GRANTED as to all the claims against Jeff
Hutchinson; all the claims against Christopher Fleming; Count I – failure to intervene
claim against Edwards, Atchison, and Harrington; Count III – conditions of confinement
claim against Defendants Edwards, Ranson and Young; Count IV – substantive due
process (state created danger) claim against all Defendants; Count V – retaliation claim
against Atchison, Harrington, Ranson and Young; Count VI - the conspiracy claims
against Defendants Atchison, Edwards, and Harrington; and DENIED as to the
remaining claims against the other Defendants.
At the close of the case, the Court DIRECTS the Clerk of the Court to enter
judgment in favor of Defendant Jeff Hutchinson on all claims; enter judgment in favor of
Christopher Fleming on all claims; enter judgment in favor of Atchison, Edwards and
Harrington on Count I- failure to intervene; enter judgment in favor of Edwards, Ranson
and Young on the Count III – conditions of confinement claim; enter judgment in favor
of all Defendants on Count IV – substantive due process (state created danger) claim;
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enter judgment in favor of Defendants Harrington, Atchison, Edwards, and Fleming on
Count VI - the conspiracy claim; enter judgment in favor of Harrington, Atchison,
Ranson, Young and Fleming on Count V- retaliation claim and against Henry Walker.
The remaining claims for trial are: Count I – failure to intervene against Ranson
and Young; Count II – failure to protect against Atchison, Edwards, Harrington, Ranson
and Young; Count III – conditions of confinement against Atchison and Harrington;
Count V retaliation against Defendant Edwards; Count VI- conspiracy against Ranson
and Young; Count VII – Intentional Infliction of Emotional Distress; Count VII- negligent
or willful and wanton conduct; Count IX – state law claims of respondeat superior against
Atchison and Harrington. The Court REMINDS the parties that this matter is set for
settlement conference on April 9, 2020 at 9:00 a.m.
IT IS SO ORDERED.
Digitally signed by
Magistrate Judge
Gilbert C. Sison
Date: 2020.03.13
15:05:55 -05'00'
DATED: March 13, 2020.
___________________________________
GILBERT C. SISON
United States Magistrate Judge
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