Baird v. Perdue et al

Filing 68

ORDER: For the reasons set forth in the attached Memorandum and Order, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion for summary judgment (Doc. 49 ). The motion is granted as to Defendants Perdue, Keener, Buchner, and Hargett on Count 4 (claim for deliberate indifference to medical needs) and as to Defendant Duncan on Count 5 (claim for failure to protect/intervene). The motion is denied as to the Defendant Perdue on Count 6 (retaliation claim). Signed by Chief Judge Michael J. Reagan on 5/24/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIS BAIRD,
Plaintiff,
vs.
BRYAN PERDUE,
JOSHUA KEENER,
MARTIN BUCHNER,
ERIC HARGETT,
and STEPHEN DUNCAN,
Defendants.

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Case No. 14-cv-1288-MJR-SCW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.

INTRODUCTION
While incarcerated at Lawrence Correctional Center, Willis Baird (Plaintiff) filed a

pro se complaint in this Court under 42 U.S.C. 1983, alleging violations of his
federally-secured constitutional rights by various correctional officials.

More

specifically, Baird alleged the use of excessive force by Bryan Perdue and Joshua Keener
on July 10, 2014 (Count 1); the use of excessive force by Perdue on September 23, 2014
and September 25, 2014 (Count 2); failure to intervene by Martin Buchner and Eric
Hargett for actions occurring on September 25, 2014 (Count 3); deliberate indifference to
Plaintiff’s serious medical needs by Perdue, Keener, Buchner, and Hargett for the
incidents on July 10, September 23, and September 25, 2014 (Count 4); failure to
intervene and protect by Stephen Duncan (Count 5); and retaliation by Perdue (Count 6).

Other claims and named Defendants were dismissed by the Court on threshold review
under 28 U.S.C. 1915A (Doc. 4). Four “John Doe” Defendants were dismissed by Order
dated May 9, 2017 (Doc. 63).
The case comes before the Court on a motion for summary judgment filed by the
remaining five Defendants -- Buchner, Duncan, Hargett, Keener, and Perdue
(collectively, Defendants) -- along with a supporting memorandum (Docs. 49 and 50).
Defendants seek summary judgment on Counts 4, 5, and 6. Plaintiff responded in
opposition to the motion (Doc. 58). As explained below, the Court GRANTS IN PART
AND DENIES IN PART Defendants’ motion (it is denied as to Count 6).
II.

SUMMARY OF KEY ALLEGATIONS AND EVIDENCE
Plaintiff’s complaint is divided into six counts and presents claims of excessive

force, deliberate indifference, failure to protect/intervene, and retaliation.

The

summary judgment motion only seeks judgment as to Plaintiff’s claims that Perdue,
Keener, Buchner, and Hargett were deliberately indifferent to Plaintiff’s medical needs
during the three incidents of excessive force (Count 4), that Duncan ignored Plaintiff’s
request to intervene and protect him from staff assaults (Count 5), and that Perdue
retaliated against Plaintiff (Count 6).
A.

Deliberate Indifference Claims

During the relevant time period, Plaintiff was housed at Lawrence Correctional
Center. On July 10, 2014, a shakedown by tactical unit officers was conducted in
Plaintiff’s housing unit (Doc. 50-1, p. 7). While Perdue was not assigned to the tactical
Page 2 of 20

team on that date, Plaintiff offered affidavits of other inmates stating that they saw
Perdue on that date and that he was present for the shakedown (Doc. 58, p. 24-25). In
his deposition taken in connection with this case on June 13, 2016 (transcript at Doc.
50-1), Plaintiff testified that during the shakedown, he, along with the other inmates in
his unit, were handcuffed and placed outside their cells in a line (Doc. 50-1, p. 5-6).
They were ordered to keep their heads down (Id.).

Plaintiff testified that Perdue

slammed Plaintiff’s head into the back of the inmate in front of him and told him to keep
his head down (Id. at p. 6-7). Plaintiff testified that he was dizzy from the hit and that
he stumbled but did not fall (Id. at p. 6, 8). Plaintiff testified that while marching out of
the building, Keener also hit Plaintiff in the back of the head, slamming him into the guy
in front of him (Id. at p. 6, 10).
Plaintiff further testified that he did not remember asking anyone for medical
help on July 10, 2014 and it might have been the next day that he asked for medical care
(Id. at p. 9). Plaintiff testified that he doubted he said anything to Perdue out of fear but
that he might have put in a sick call request on that day or the next (Id. at p. 9-10). Nor
did he ask Keener for medical care (Id. at p. 12). He testified that when he returned to
the cellhouse three hours later he spoke with Perdue, possibly about cleaning of the cell
that was left a mess after the shakedown, but he did not ask him for medical care (Id. at
p. 9). Plaintiff stated that by the time he returned to the cellhouse, his symptoms had
subsided (Doc. 58 at p. 4).

He specifically stated that he did not ask for medical

attention from anyone on that date (Doc. 50-1, p. 25).
Page 3 of 20

Plaintiff testified that on September 23, 2014, Perdue kicked Plaintiff’s cell door
into his head (Doc. 50-1, p. 12). Plaintiff testified that as he was leaving the cell to use
the telephone, Perdue kicked the door into Plaintiff (Id. at p. 13). The door knocked
Plaintiff back, the door bounced off of Plaintiff, and then Perdue kicked the door closed
(Id.). Plaintiff testified that the door hit the side of his head (Id. at p. 14). Plaintiff told
Perdue that he kicked the door into his head; Perdue walked away (Id. at p. 15, 16).
When Perdue returned with Plaintiff’s cellmate from the telephones, Plaintiff asked to
go to healthcare unit because his head was hurting (Id.). Plaintiff testified that Perdue
left and may have gone to call healthcare, because Perdue came back 45 minutes later
and told Plaintiff he could go to the healthcare unit (Id. at p. 16). Perdue then escorted
Plaintiff to the healthcare unit, where he was seen by a nurse for a headache (Id.; Doc.
50-3). Plaintiff received pain medication for his headache (Id. at p. 16-17; Doc. 58, p.
17-19).
On September 25, 2014, Perdue stopped Plaintiff on his way back from the
healthcare unit, where he was taking physical therapy, to be frisked (Doc. 50-1, p. 18).
Plaintiff testified that he asked for a lieutenant to be present during the frisking (Id. at
p.18, 19). Martin Buchner showed up and Perdue began to frisk Plaintiff but when he
reached his groin, Perdue “karate chop[ped]” Plaintiff in the testicles (Id.). Both Martin
Buchner and Eric Hargett were present during the incident (Id.). Plaintiff testified that
he immediately fell to the floor and rolled around on the ground for ten minutes asking
for medical assistance (Id. at p. 20). Plaintiff testified that Buchner stated he would get
Page 4 of 20

him medical care after they finished their shakedown (Id.). Plaintiff got up, and Perdue
continued the frisk and hit Plaintiff in the testicles again, although Plaintiff testified that
he did not keel over, he just jumped (Id.). He testified that the first chop was meant to
hurt him, the others did not hurt like the first (Id.). Perdue “chopped’ him a third time
as he was frisking Plaintiff’s right leg (Id. at p. 20-21). Plaintiff described the first hit as a
20 on a 10 point scale and the other two hits as a 10 (Id. at p. 21).
Plaintiff testified that he requested healthcare during the frisking multiple times
(Doc. 50-1, p. 23). Buchner told him he could have medical care once the frisking was
over (Id. at p. 20). After the incident Plaintiff was escorted back to his cell and he did
not see anyone from healthcare for the injury (Id. at p. 23). Plaintiff testified that he also
did not put in a request to go to the healthcare unit upon returning to his cell (Id.).
Plaintiff testified that when he was let out of his cell two hours later for lunch, he went
straight to the showers and declared a hunger strike, because he did not get any medical
care (Id.). Plaintiff testified that the failure to originally get medical care during the
incident was the sole reason for the hunger strike (Id. at p. 24). He told the officers to
whom he declared his hunger strike that he was not going to eat, because he was not
allowed to have medical attention during the earlier frisking episode (Id.). He did not
ask those officers for medical attention (Id.). The only people he requested medical
attention from were Buchner, Perdue, and Hargett, when the frisking incident first took
place (Id.). Plaintiff testified that he asked the segregation officer to have someone
check out his testicles, because they were still hurting (Id.). He also stated that he may
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have requested the same from the lieutenant that walked him over to segregation and
that he believes that person was Buchner (Id.). Plaintiff never saw anyone from the
healthcare unit for this injury (Id.).
B.

Failure to Protect Claim

Plaintiff alleges that Warden Duncan failed to protect him from prison officers.
Plaintiff testified that Duncan failed to protect him by keeping Plaintiff from identifying
the officers who hit him in the back of the head on July 10, 2014 (Doc. 50-1, p. 27).
Plaintiff testified that Duncan had the officers put on masks and ordered that inmates
keep their heads down, all so that the officers could not be identified (Id.). Plaintiff
testified that Duncan was responsible for Plaintiff not being able to identify the John
Does in this case (Id. at p. 28).
Plaintiff also testified that Warden Duncan ordered the shakedown on July 10,
2014 and that he knew that officers were going to use “corporal punishment” on
inmates, because he ordered them to wear concealing uniforms (Id.). Plaintiff testified
that Duncan approached him (Plaintiff) while he was on hunger strike and told him that
the shakedown was ordered because officers were getting attacked at other prisons and
that he wanted to teach the inmates a lesson (Id.).
C.

Retaliation Claim

Relevant to Plaintiff’s retaliation claim against Perdue, Plaintiff testified that the
two September incidents involving Perdue were done out of retaliation for Plaintiff
filing grievances against Perdue and filing a lawsuit. Plaintiff testified that he filed a
Page 6 of 20

lawsuit, Baird v. Godinez, Case No. 14-cv-0902, in which the complaint mentioned
Perdue’s attack on July 10, 2014 (Doc. 50-1, p. 29). While the July 10, 2014 incident was
not a claim in the case and Perdue was not a party to the case, Plaintiff noted that
Perdue’s name was mentioned in the Court’s threshold order issued on September 11,
2014 (Id.; Doc. 58, p. 21-22). Plaintiff testified that Perdue’s friends or Perdue himself
could have read the Order prior to the September incidents (Doc. 50-1, p. 30).
Plaintiff stated that he wrote a grievance about the July incident and that he wrote
a grievance on September 23, 2014 about the incident with the cell door, and then two
days later Perdue conducted the frisk of Plaintiff which led to Perdue hitting Plaintiff in
the testicles (Id.). Plaintiff testified that he wrote grievances against Perdue in 2013 and
in January, February, and March of 2014 (Doc. 50-1, p. 31; Doc. 58, p. 28-39). Plaintiff
testified that he believed the previous grievances and the lawsuit were the reasons
behind Perdue kicking the door into Plaintiff’s head on September 23, 2014 (Id.).
He also stated that he believed when he informed the nurse on September 23,
2014 that Perdue had kicked the door into his head, Perdue then retaliated against
Plaintiff for that complaint via the frisking incident on September 25, 2014 (Id.).
Plaintiff testified that Perdue had told him months before, “If I want to get you, I can get
you. I have not got you yet,” although Plaintiff indicated that he believed this to be a
threat to write false disciplinary reports against Plaintiff (Id.).
Plaintiff wrote a grievance on August 20, 2014 against Perdue for Perdue
transferring Plaintiff so that two inmates, who were friends, could be housed together
Page 7 of 20

(Doc. 59, p. 28). The counselor’s response to that grievance indicates that Perdue did
not recall the incident and that Plaintiff’s statements were false (Id.). Plaintiff had
previously filed a grievance against Perdue in January 2014 asking for Perdue to be
suspended for an incident which occurred in dietary (Id. at p. 29). In the counselor’s
response, Perdue stated that Plaintiff was given a direct order regarding where to sit and
that Plaintiff refused to follow that order (Id.).
III.

APPLICABLE LEGAL STANDARDS
A.

Summary Judgment Motions

Summary judgment is proper only if the admissible evidence considered as a
whole shows there is no genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law. Dynegy Mktg. & Trade v. Multi Corp., 648 F.3d
506, 517 (7th Cir. 2011), citing FED. R. CIV. P. 56(a).
The party seeking summary judgment bears the initial burden of showing -based on the pleadings, affidavits, and/or information obtained via discovery -- the lack
of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
After a properly supported motion for summary judgment is made, the adverse party
“must set forth specific facts showing that there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), quoting FED R. CIV. P. 56(e)(2). A fact is
material if it is outcome determinative under applicable law. Anderson, 477 U.S. at 248;
Ballance v. City of Springfield, Ill. Police Dep’t, 424 F.3d 614, 616 (7th Cir. 2005);
Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004).
Page 8 of 20

A genuine issue of material fact exists if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. “A
mere scintilla of evidence in support of the nonmoving party’s position is not sufficient;
there must be evidence on which the jury could reasonably find for the non-moving
party.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
On summary judgment, the district court construes the facts and draws the
reasonable inferences in favor of the non-moving party – here, Plaintiff Fields. Cole v.
Board of Trustees of Northern Illinois University, 838 F.3d 888, 895 (7th Cir. 2016).
However, the court does not draw every conceivable inference from the record, “and
mere speculation or conjecture will not defeat a summary judgment motion.” Rockwell
Automation, Inc. v. National Union Fire Ins. Co., 544 F.3d 752, 757 (7th Cir. 2008)
(emphasis added), quoting McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir. 2003).
B.

Deliberate Indifference

Prison officials are required to ensure that inmates receive adequate food,
clothing, shelter and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The
United States Supreme Court has declared that a prison official's "deliberate indifference
to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction
of pain' proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104
(1976), quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976).
Stated another way, prison officials violate the Eighth Amendment if they display
deliberate indifference to an inmate’s serious medical needs. Greeno v. Daley, 414 F.3d
Page 9 of 20

645, 652–53 (7th Cir. 2005). Accord Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 828 (7th Cir. 2009) (“Deliberate indifference to serious medical needs of a
prisoner constitutes the unnecessary and wanton infliction of pain forbidden by the
Constitution.”). A prisoner is entitled to reasonable measures to meet a substantial risk
of serious harm — not to demand specific care. Forbes v. Edgar, 112 F.3d 262, 267 (7th
Cir. 1997).
To prevail, a prisoner who brings an Eighth Amendment challenge of
constitutionally-deficient medical care must satisfy a two-part test. Arnett v. Webster,
658 F.3d 742, 750 (7th Cir. 2011), citing Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.
2006). The first prong that must be satisfied is whether the prisoner has shown he has
an objectively serious medical need. Arnett, 658 F.3d at 750. Accord Greeno, 414 F.3d
at 653. A medical condition need not be life-threatening to be serious; rather, it could be
a condition that would result in further significant injury or unnecessary and wanton
infliction of pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
Accord Farmer, 511 U.S. at 828 (violating the Eighth Amendment requires deliberate
indifference to a substantial risk of serious harm).
Only if the first (objective) prong is satisfied is it necessary to analyze the second
(subjective) prong, which focuses on whether a defendant’s state of mind was
sufficiently culpable.

Greeno, 414 F.3d at 652–53.

Satisfying the subjective prong

requires a prisoner to show that a prison official has subjective knowledge of—and then
disregards—an excessive risk to inmate health. Greeno, 414 F.3d at 653. The plaintiff
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need not show the individual literally ignored his complaint, just that the individual was
aware of the serious medical condition and either knowingly or recklessly disregarded
it. Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008).
C.

Failure to Protect

To prevail on a failure to protect claim, a plaintiff must show (1) that he is
incarcerated under conditions posing a substantial risk of serious harm, and (2) that the
defendant acted with “deliberate indifference” to that danger. Farmer v. Brennan, 511
U.S. 825, 834 (1994).
The first prong of this test requires the inmate to show that prior to the incident,
there was a substantial risk that serious harm to him might occur. Brown v. Budz, 398
F.3d 904, 910 (7th Cir. 2005). The courts have found that an inmate who is assaulted by
other inmates has experienced a substantially serious harm. Brown, 398 F.3d at 910.
A plaintiff also must prove that prison officials were aware of a specific,
impending, and substantial threat to his safety, often by showing that he complained to
prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th
Cir. 1996). In other words, the defendant had to know that there was a substantial risk
that those who attacked Plaintiff would do so, and (armed with this knowledge) fail to
take any action. See Sanville v. McCaughtry, 266 F.3d 724, 733–34 (7th Cir.2001).
Deliberate indifference in this context can also be based “upon knowledge of a
victim’s particular vulnerability (though the identity of the ultimate assailant [is] not
known in advance of the attack), or, in the alternative, an assailant’s predatory nature
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(though the identity of the ultimate victim [is] not known in advance of attack).”
Brown, 398 F.3d at 915. Conduct that amounts to negligence or inadvertence is not
enough to state a failure-to-protect claim. Pinkston v. Madry, 440 F.3d 879, 889 (7th
Cir. 1996).
D.

Retaliation

An official who retaliates against a prisoner because that prisoner filed a
grievance violates the prisoner’s First Amendment rights. DeWalt v. Carter, 224 F.3d
607, 618 (7th Cir. 2000). Establishing a claim of retaliation requires a prisoner to show
the following: (1) he engaged in a protected activity, (2) he suffered a deprivation likely
to prevent future protected activities, and (3) there was a causal connection between the
two. See Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir. 2009).
If the plaintiff prisoner makes this prima facie showing, the burden shifts to the
defendant, who can still prevail if he shows that the offending action would have
happened even if there had been no retaliatory motive, i.e., if “the harm would have
occurred anyway.” Hawkins v. Mitchell, 756 F.3d 983, 996 n.10 (7th Cir. 2014), quoting
Thayer v. Chiczewski, 705 F.3d 237, 251-52 (7th Cir. 2012), and Greene v. Doruff, 660 F.3d
975, 977 (7th Cir. 2011). See also Mays v. Springborn, 719 F.3d 631, 634-35 (7th Cir.
2013). At summary judgment, “mere speculation” by the plaintiff is insufficient to
carry his burden. Rockwell Automation, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
544 F.3d 752, 757 (7th Cir. 2008); Devbrow v. Gallegos, 735 F.3d 584, 588 (7th Cir. 2013).
Page 12 of 20

IV.

ANALYSIS
A.

Deliberate Indifference

→

July 10, 2014

As to the claim that Defendants Perdue and Keener were deliberately indifferent
to Plaintiff’s injuries on July 10, 2014, the Court finds no evidence of deliberate
indifference. Plaintiff acknowledged that he did not tell either Defendant that he was
hurt, nor did he ask for medical care. Instead, Plaintiff relies on the fact that Defendants
were the ones that hit Plaintiff in the head as evidence that they had knowledge of his
injury and need for medical care. But Plaintiff testified that after having his head
slapped into the inmate in front of him, he only experienced dizziness and pain. He did
not fall down; he only stumbled. He was not bleeding nor was there any swelling.
There was no physical evidence that would provide Defendants with subjective
knowledge of Plaintiff’s medical needs.
Plaintiff further testified that when he returned to his housing unit some three
hours later, he no longer was displaying symptoms and did not ask Perdue for care,
even though he spoke to Perdue about other matters.

There is no evidence that

Defendants were aware of Plaintiff’s purported need for medical care. There is no
evidence that they were deliberately indifferent in not providing Plaintiff with medical
care, as they had no knowledge of a serious medical need. Thus, Defendants Perdue
and Keener are entitled to summary judgment as to this claim.

Page 13 of 20

→

September 23, 2014

Nor does the Court find any evidence that Defendant Perdue was deliberately
indifferent to Plaintiff’s serious medical needs on September 23, 2014. As to this claim,
Plaintiff argues that Perdue delayed Plaintiff’s access to medical care. Plaintiff testified
that it was approximately one hour before he was able to go to the healthcare unit (Doc.
50-1, p. 26).
A delay in medical treatment can constitute deliberate indifference.

See

Grieveson v. Anderson, 538 F.3d 763, 779-80 (7th Cir. 2008)(failure to obtain medical
attention for inmate with broken nose for one and a half days could constitute a delay
in treatment and deliberate indifference); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.
2010) (“A significant delay in effective medical treatment may…[constitute]
deliberate indifference….where the result is prolonged and unnecessary pain.”).
However, the inmate must provide evidence that the defendant’s failures caused his
injury or pain. Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013). “In cases where
prison officials delayed rather than denied medical assistance to an inmate, courts have
required the plaintiff to offer ‘verifying medical evidence’ that the delay (rather than the
inmate's underlying condition) caused some degree of harm. That is, a plaintiff must
offer medical evidence that tends to confirm or corroborate a claim that the delay was
detrimental.” Jackson, 733 F.3d at 790, internal citations omitted.
In this case, there is no evidence that Perdue was deliberately indifferent in
delaying Plaintiff’s treatment. Plaintiff testified that when he was first hit with the door
Page 14 of 20

he did not immediately ask Perdue for medical treatment, he just told Perdue he had hit
him with the door and asked for an apology (Doc. 50-1, p. 15). When Perdue returned
with Plaintiff’s cellmate from the telephones, Plaintiff did request medical attention
(Doc. 50-1, p. 16). Plaintiff testified that it was 30 minutes from the time Perdue hit
Plaintiff with the door that Perdue returned with Plaintiff’s cellmate (Id. at p. 16). The
Court finds no evidence of deliberate indifference between the time the incident
occurred and Plaintiff asking for medical care as Perdue did not know prior to Plaintiff
requesting care that Plaintiff needed medical attention. Plaintiff testified that he only
had a headache and that he did not have any swelling, bleeding, or other outward
appearance of symptoms which would put Perdue on notice that Plaintiff needed care
(Id. at p. 16-17).
After Plaintiff requested care, Plaintiff waited another 45 minutes before Perdue
came back and told him that he could go to the healthcare unit (Id. at p. 16). Plaintiff
testified that during this time period he believed that Perdue called the healthcare unit,
and then he returned to tell Plaintiff that he could go to the healthcare unit (Id.). The
Court finds no evidence of delay nor has Plaintiff offered any evidence that this short
period between Plaintiff asking for medical attention and being taken to the healthcare
unit caused him any injury. Plaintiff testified that he was taken to the nurse and
received pain medication for his headache, which went away after he went to sleep that
night (Id. at p. 16-17). There is no evidence that this limited delay caused him any harm
or that Perdue was deliberately indifferent in taking Plaintiff to the healthcare unit. The
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Court finds that Perdue is also entitled to summary judgment as to this claim.
→

September 25, 2014

In his last claim of deliberate indifference to medical needs, Plaintiff alleges that
Defendants Perdue, Hargett, and Buchner failed to obtain medical care after Perdue
“karate chopped” Plaintiff in the testicles. The Court finds no evidence that Plaintiff
had a serious medical need at the time of the incident. While Plaintiff testified that he
asked the Defendants to take him to the healthcare unit and that he experienced a large
amount of pain when initially hit in the groin by Perdue, there is no evidence that
Plaintiff’s condition was a serious medical need.
The Court acknowledges that a medical condition need not be life-threatening to
be serious. It can be a condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated. Gayton, 593 F.3d at 620.
However, there is no evidence that getting hit in the testicles in the manner testified to by
Plaintiff constituted a serious medical need.

Although Plaintiff testified that he

immediately crumbled to the floor after the initial hit, he was able to stand back up and
continue with the frisk. Plaintiff also testified that he did not ask for medical care after
he was taken back to his cell. Nor did he ask for medical attention from any of the
officers to whom he later declared or reported his hunger strike.
While Plaintiff testified that he declared a hunger strike regarding the incident, he
testified that the hunger strike was not due to any continued failure to take him to the
healthcare unit but rather because the Defendants did not take him to the healthcare unit
Page 16 of 20

at the time of the incident (Doc. 50-1, p. 23-24). Further, there is no evidence that
Plaintiff would suffer pain or further injury if not treated by a doctor immediately after
being hit in the testicles. Defendants are entitled to summary judgment on this claim.
B.

Failure to Protect

In his complaint, Plaintiff alleged that Defendant Duncan ignored multiple direct
requests from Plaintiff to protect him from assaults. As fleshed out in his deposition
testimony and response to the pending motion, however, Plaintiff claims that Duncan is
liable for the excessive force used against him on July 10, 2014, because Duncan ordered
the shakedown by the tactical unit.

Plaintiff has offered no evidence that he

complained to Duncan about a specific threat from officers prior to the July 10, 2014
excessive force incident or that Duncan was aware that officers were going to hit Plaintiff
during the shakedown, such that Duncan could be found liable for failing to protect
Plaintiff. See Pope, 86 F.3d at 92.
Plaintiff testified that Duncan ordered the shakedown and that he ordered the
officers to conceal their identity so that inmates, like Plaintiff, could not later identify
them for lawsuits. Plaintiff testified that Duncan was the only one in the prison who
could order the shakedown and that Duncan told Plaintiff while he was on a later
hunger strike that the shakedown occurred because officers were getting attacked and
the inmates needed to be thought a lesson (Doc. 50-1, p. 28). While there is evidence
that Duncan ordered the shakedown, there is no evidence that he ordered the
Defendants to use excessive force on Plaintiff as Plaintiff contends. Plaintiff testified
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that Duncan told him he expected a few lawsuits from inmates, but there is no testimony
that Duncan ordered officers to hit Plaintiff or use any other form of excessive force
against Plaintiff.
Nor does the fact that guards concealed their identity constitute evidence that
Duncan ordered the guards to use excessive force. In fact, Plaintiff testified that he was
able to identify Keener by the nametag that he was wearing. So the guards were not
entirely concealing their identity to Plaintiff as alleged (Doc. 50-1, p. 10). Defendant
Duncan is entitled to summary judgment.
C.

Retaliation Claim

However, as to Plaintiff’s retaliation claim against Perdue, Plaintiff has presented
enough evidence to survive summary judgment. Defendant Perdue maintains that
Plaintiff has no evidence that Perdue knew about Plaintiff’s grievances prior to the
September 23 and 25, 2014 incidents. But there is evidence in the record that Plaintiff
filed grievances of which Defendant Perdue was aware.
For instance, Plaintiff attaches to his response a grievance dated August 20, 2014,
which was filed against Perdue for improperly moving inmates to different cells (Doc.
58, p. 28).

The counselor’s response includes a response from Defendant Perdue

indicating that he does not recall the incident and that Plaintiff’s claims are false (Id.).
The counselor’s response is dated September 4, 2014, a mere two and one-half weeks
prior to the September 23, 2014 incident. Plaintiff also filed a grievance regarding
Perdue’s actions during the July 10, 2014 shakedown that was responded to by his
Page 18 of 20

counselor on September 3, 2014 (Doc. 1, p. 4). Like the August grievance, this grievance
also reflects a response from Perdue indicating that Plaintiff’s allegations were false (Id.).
Plaintiff also testified that he filed a lawsuit in which an Order from this Court
mentioned Perdue. That Order was issued on September 11, 2014, just prior to the
incidents involving Perdue.

The September incidents involving Perdue occurred

sufficiently proximate in time to Plaintiff filing grievances against Perdue, and there is
evidence that Perdue was aware of Plaintiff’s grievances at the very least.
Plaintiff also testified that Perdue previously threatened him, remarking that if he
wanted to get Plaintiff, he could. Given the closeness in time and Perdue’s alleged
statements, a jury could find that Perdue’s actions were taken in retaliation for Plaintiff’s
grievances and lawsuits. As such, the Court DENIES Defendant Perdue’s motion for
summary judgment on the retaliation claim.
V.

CONCLUSION
Accordingly, the Court GRANTS IN PART AND DENIES IN PART

Defendants’ motion for summary judgment (Doc. 49).
The motion is granted as to Defendants Perdue, Keener, Buchner, and Hargett on
Count 4 (claim for deliberate indifference to medical needs) and as to Defendant Duncan
on Count 5 (claim for failure to protect/intervene). The motion is denied as to the
Defendant Perdue on Count 6 (retaliation claim).

Page 19 of 20

In the wake of this Order, the following claims remain for trial:
Count 1:

excessive force by Defendants Perdue and Keener on July 10, 2014;

Count 2:

excessive force by Defendant Perdue on September 23, 2014 and
September 25, 2014 (Count 2);

Count 3:

failure to intervene by Defendants Buchner and Hargett for
actions occurring on September 25, 2014; and

Count 6:

retaliation by Defendant Perdue.

A final pretrial conference will be held by Judge Williams on June 5, 2017 (see
notice at Doc. 67). Additionally, Plaintiff has a June 2, 2017 deadline to complete and
return the form provided by Judge Williams with his May 15, 2017 Order (Doc. 66).
Finally, jury trial is set before the undersigned Judge on the June 19, 2017 docket. This
case is set that week “behind” four other trials (three of which are criminal cases with
speedy trial implications). It is unlikely this case will be reached. The Clerk of Court
shall provide Plaintiff (who has less ready access to the Court’s website due to his
incarceration) a copy of the Consent to Magistrate Judge form, should he wish to opt for
trial before Magistrate Judge Williams, so as to secure a more firm and definite (and
likely sooner) trial date. This is just an option for the parties and is not meant to
pressure them.
IT IS SO ORDERED.
DATED May 24, 2017.

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge
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