Scott v. Haywood et al
Filing
33
OPINION AND ORDER GRANTING 30 MOTION for Summary Judgment filed by Jeffery M Kroemer, Robbie James, Allen County Sheriff, Kayle Schlemmer, Trina L Haywood, Officer Gonzales, Yeaetha Dylan, Officer Kramer, Shift Commander, Penny Lake. Clerk directed to ENTER FINAL JUDGMENT as outlined in this Opinion and Order. Signed by Senior Judge James T Moody on 9/24/2013. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CHANNING L. SCOTT,
)
)
Plaintiff,
)
)
v.
)
)
CAPTAIN TRINA HAYWOOD,
)
OFFICER YEAETHA DILLON,
)
OFFICER JEFFREY KROEMER,
)
LIEUTENANT JOHN GONZALES,
)
OFFICER KAYLE SCHLEMMER,
)
OFFICER ROBBIE JAMES, OFFICER )
PENNY LAKE, and the ALLEN
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COUNTY SHERIFF,
)
)
Defendants.
)
No. 1:11 CV 330
OPINION AND ORDER
This matter is before the court on defendants Captain Trina Haywood, Officer
Yeaetha Dillon (erroneously identified in the amended complaint as Yeaetha Dylan),
Officer Jeffrey Kroemer, Lieutenant John Gonzales, Officer Kayle Schlemmer, Officer
Robbie James, Officer Penny Lake, and the Allen County Sheriff’s motion for summary
judgment on all of plaintiff Channing Scott’s claims. (DE # 30.) Plaintiff has not filed a
response, and the time to do so has now passed. For the following reasons, defendants’
motion is granted.
I.
Facts and Procedural History
This case stems from a delayed prison disciplinary hearing. Plaintiff, who is
black, was previously incarcerated in the Allen County Jail. Plaintiff alleges that he was
discriminated against on the basis of his race while at the Allen County Jail after he was
forced to stay in segregation for 21 days while awaiting a disciplinary hearing, despite
the fact that two white inmates who arrived in segregation around the same time as
plaintiff were given disciplinary hearings before plaintiff had his disciplinary hearing.
(DE # 27 at 1-4.) In his first amended complaint, plaintiff alleges that defendants are
liable for violations of the Fourteenth Amendment’s Equal Protection clause under 42
U.S.C. § 1983. (Id. at ¶ 10.)
In their brief in support of their motion for summary judgment, defendants have
submitted a statement of material facts. (DE # 31 at 2.) Because plaintiff has not
responded to defendants’ motion for summary judgment, these facts are deemed
admitted for purposes of this motion. FED. R. CIV. P. 56(e)(2).
Facts Regarding the Allen County Jail’s Disciplinary Proceedings
An inmate who violates the rules at the Allen County Jail will be subject to a
disciplinary proceeding which is conducted by the Discipline Board. (DE # 31 at 2.) Both
defendant Officer Kroemer and defendant Officer Lake are permanent members of the
Discipline Board. (DE # 31 at 2; DE # 30-1 at ¶ 3.) In order for the Discipline Board (“the
Board”) to convene and conduct hearings, there must be three members of the Board
present. (DE # 31 at 3; DE # 30-1 at ¶ 4.) After an inmate violates an Allen County Jail
rule, an officer places the inmate in disciplinary segregation and writes a report
detailing the violation. (DE # 31 at 3; DE # 30-1 at ¶ 5.) The officer’s report is then
brought to the Board’s attention, and either Officer Kroemer or Officer Lake create a
hearing packet. (DE # 31 at 3; DE # 30-1 at ¶ 6; DE # 30-2 at ¶ 6.)
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After the Board receives the hearing packet, the Board assigns a hearing date.
(See DE # 31 at 3; DE # 30-1 at ¶ 7.) The hearing dates are assigned based on the date of
the alleged violation, and inmates are given a copy of the hearing packet prior to the
hearing. (DE # 31 at 3; DE # 30-1 at ¶ 7.) On the actual day of the hearing, the order of
the hearings is determined by the date of the alleged violation. (DE # 31 at 3; DE # 30-1
at ¶ 8.) The inmates with the oldest alleged violations have their disciplinary hearings
before inmates with newer alleged violations. (See DE # 31 at 3; DE # 30-1 at ¶ 9.)
The length of each disciplinary hearing varies, depending on whether the inmate
contests the charges or presents witness testimony in their own defense. (DE # 31 at 3;
DE # 30-1 at ¶ 10.) Because the length of each hearing varies, the Board has limited
control over how many hearings it will conduct each day it is in session. (DE # 31 at 3;
DE # 30-1 at ¶ 10.) Additionally, events outside of the Board’s control can result in the
postponement of hearings, which may result in fewer hearings on any given day.
(DE # 31 at 3; DE # 30-1 at ¶ 11.) For example, a security incident might require the
attention of all jail staff on duty, and thus, would end the disciplinary hearings for that
day. (DE # 31 at 3; DE # 30-1 at ¶ 7.) (See DE # 31 at 3; DE # 30-1 at ¶ 11.) If an inmate
has to attend a court hearing on the same day as his or her disciplinary hearing is
scheduled, the disciplinary hearing is scheduled for the next available date. (DE # 31 at
4; DE # 30-1 at ¶ 4.)
3
Plaintiff’s Disciplinary Hearing
On September 17, 2009, plaintiff committed trafficking, a violation of the Allen
County Jail rules, and was placed in disciplinary segregation. (DE # 31 at 4; DE # 30-1 at
¶ 12; DE # 30-4 at ¶ 6.) Plaintiff’s disciplinary hearing was scheduled for September 29,
2009. (DE # 31 at 4; DE # 30-1 at ¶ 14.) The hearings set for September 29, 2009 covered
alleged violations that occurred on September 11, 2009, September 13, 2009, September
16, 2009, and September 17, 2009. (DE # 31 at 4; DE # 30-1 at ¶ 15.) On September 29,
2009, the disciplinary hearings were conducted in order of violation date, and the oldest
alleged violations were heard first. (DE # 31 at 4; DE # 30-1 at ¶ 16.) Due to the high
number of hearings schedule for September 29, 2009, the Board did not have enough
time to conduct plaintiff’s hearing. (DE # 31 at 4-5; DE # 30-1 at ¶ 17.)
Because the Board was unable to hold plaintiff’s disciplinary hearing on
September 29, 2009, the hearing was rescheduled for October 5, 2009. (DE # 31 at 5;
DE # 30-1 at ¶ 18.) The hearings scheduled for October 5, 2009 covered violations from
September 17, 2009, September 19, 2009, September 20, 2009, September 24, 2009, and
September 26, 2009. (DE # 31 at 5; DE # 30-1 at ¶ 22.) Plaintiff, however, attended a
court hearing on October 5, 2009, and was unable to attend his disciplinary hearing
scheduled for that day. (DE # 31 at 5; DE # 30-1 at ¶ 23.) Plaintiff’s disciplinary hearing
was therefore rescheduled for October 7, 2009. (DE # 31 at 5; DE # 30-1 at ¶ 24.)
Plaintiff’s disciplinary hearing was held on October 7, 2009. (DE # 31 at 5;
DE # 30-1 at ¶ 25.) After determining that plaintiff was a repeat offender, plaintiff was
4
sentenced to time served. (DE # 31 at 5; DE # 30-1 at ¶ 26.) Plaintiff was released from
segregation on October 8, 2009. (DE # 31 at 5; DE # 30-1 at ¶ 27.)
Although several of the defendants had contact with plaintiff while plaintiff was
incarcerated at the Allen County Jail (see DE # 30-3 at ¶¶ 3-9 (defendant Haywood); DE
# 30-4 at ¶¶ 5-6 (defendant Gonzales); DE # 30-4 at ¶¶ 3-9 (defendant Dillon)), only two
defendants had any control over or any impact on the scheduling of plaintiff’s
disciplinary hearing: defendants Lake and Kroemer. (See DE # 30-1 at ¶ 37 (“Officer
Lake and [Officer Kroemer] are the only officers responsible for scheduling and
conducting discipline hearings.”); DE # 30-3 at ¶ 5 (“Corporal Jeffrey M. Kroemer and
Officer Penny Lake are tasked with conducting discipline hearings for inmates in the
Allen County Jail.”)).
Amber Graves’s Disciplinary Hearing
Amber Graves, who is white, was involved in the same trafficking incident that
plaintiff was involved in on September 17, 2009. (DE # 31 at 5; DE # 30-1 at ¶ 13.)
Graves’s hearing was conducted on September 29, 2007. Graves admitted to the
trafficking violation and was sentenced to time served. (DE # 31 at 5-6; DE # 30-1 at
¶ 20.)
Matt McKee’s Disciplinary Hearing
Matt McKee, who is white, violated Allen County Jail rules on September 11,
2009. (DE # 31 at 6; DE # 30-1 at ¶ 29.) McKee was initially held in observation due to
suicide precautions. (DE # 31 at 6; DE # 30-1 at ¶ 30.) After being released from
5
observation, he was moved to disciplinary segregation. (DE # 31 at 6; DE # 30-1 at ¶ 31.)
McKee’s disciplinary hearing was originally scheduled for September 23, 2009, but had
to be moved to September 29, 2009 because McKee was required to be in court on
September 23. (DE # 31 at 6; DE # 30-1 at ¶¶ 32-33.) McKee was sentenced to 40 days
and was released on October 21, 2009. (DE # 31 at 6; DE # 30-1 at ¶ 34.)
Plaintiff’s Allegations
Plaintiff alleges discrimination based on when his disciplinary hearing occurred
in relation to when Graves’s and McKee’s disciplinary hearings occurred. Specifically,
plaintiff alleges that defendants discriminated against him on account of his race when
Graves had her disciplinary hearing approximately two weeks before plaintiff had his
disciplinary hearing, despite the fact that both plaintiff and Graves were disciplined for
the same incident. (DE # 27 at 4.) Plaintiff further alleges that defendants discriminated
against him on account of his race when McKee, who plaintiff alleges arrived in
segregation after plaintiff did, had his disciplinary hearing before plaintiff’s hearing.
(Id.) Plaintiff contends that defendants’ conduct violated the Fourteenth Amendment’s
Equal Protection clause. (Id.)
II.
Legal Standard
Defendants have moved for summary judgment. FEDERAL RULE OF CIVIL
PROCEDURE 56 requires the entry of summary judgment, after adequate time for
discovery, against a party “who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
6
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“[S]ummary judgment is appropriate–in fact, is mandated–where there are no disputed
issues of material fact and the movant must prevail as a matter of law. In other words,
the record must reveal that no reasonable jury could find for the non-moving party.”
Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations
and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’–that is,
pointing out to the district court–that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998); Doe, 42 F.3d at 443.
7
Because plaintiff failed to file a response to defendants’ motion for summary
judgment, defendants are entitled to summary ruling on the motion – that is, a ruling
without the benefit of plaintiff’s response. Plaintiff’s failure to respond, however, does
not automatically result in summary judgment for defendants. Wienco, Inc. v. Katahn
Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992). Rather, the court must still “make the
further finding that given the undisputed facts, summary judgment is proper as a
matter of law.” Id. Accordingly, the court’s task is to examine the factual record in this
case to determine whether defendants have met their burden of demonstrating a lack of
genuine issues of material fact warranting summary judgment in its favor.
III.
Analysis
A. Plaintiff’s Claims Against defendants Haywood, Gonzales, Dillon,
Schlemmer, and James
Defendants first move for summary judgment on plaintiff’s claims against
defendants Haywood, Gonzales, Dillon, Schlemmer, and James. (DE # 31 at 9.) These
defendants argue that they are entitled to summary judgment because they had no role
in scheduling and conducting plaintiff’s disciplinary hearing. (Id.) “[I]n order to recover
damages under § 1983, a plaintiff must establish that a defendant was personally
responsible for the deprivation of a constitutional right.” Knight v. Wiseman, 590 F.3d
458, 462-63 (7th Cir. 2009) (citation omitted); see also Allen v. Wine, 297 F. App’x 524, 531
(7th Cir. 2008) (“To hold a person liable under § 1983 . . . the plaintiff must prove that
the defendant was personally involved in the deprivation of a constitutional right.”).
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In this case, plaintiff has alleged that defendants violated the Equal Protection
clause of the Fourteenth Amendment by requiring plaintiff to wait for a disciplinary
hearing for two weeks longer than a white female inmate who was disciplined for the
same act that plaintiff was. (DE # 27.) Additionally, plaintiff has alleged defendants
violated the Equal Protection clause of the Fourteenth Amendment when a white male
inmate, who plaintiff alleges arrived in segregation after he did, received a hearing
before plaintiff did. (Id.) Defendants, however, have submitted evidence which shows
that only two defendants, defendants Lake and Kroemer, had any control over when
disciplinary hearings at the jail were scheduled. (See DE # 30-1 at ¶ 37 (“Officer Lake
and [Officer Kroemer] are the only officers responsible for scheduling and conducting
discipline hearings.”); DE # 30-3 at ¶ 5 (“Corporal Jeffrey M. Kroemer and Officer
Penny Lake are tasked with conducting discipline hearings for inmates in the Allen
County Jail.”)).
As mentioned above, “in order o recover damages under § 1983, a plaintiff must
establish that a defendant was personally responsible for the deprivation of a
constitutional right.” Wiseman, 590 F.3d at 462-63 (citation omitted). Because plaintiff’s
only allegation of a Constitutional deprivation is based on the scheduling of his
disciplinary hearing, and because defendants have submitted evidence which shows
that only defendants Lake and Kroemer had any control over the scheduling of
plaintiff’s disciplinary hearing, defendants Haywood, Gonzales, Dillon, Schlemmer, and
James have met their initial burden on summary judgment. Plaintiff has failed to
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respond to defendants’ motion, and therefore, has failed to submit any evidence that
defendants Haywood, Gonzales, Dillon, Schlemmer, and James were in any way
personally responsible for plaintiff’s alleged Constitutional violation. Defendants’
motion for summary judgment will therefore be granted as it relates to defendants
Haywood, Gonzales, Dillon, Schlemmer, and James.
B. Plaintiff’s Claims Against Defendants Lake and Kroemer
Defendants Lake and Kroemer, the two defendants actually responsible for
scheduling plaintiff’s disciplinary hearing, argue that they are entitled to summary
judgment on plaintiff’s equal protection claim because the undisputed evidence shows
that the delay in plaintiff’s disciplinary hearing was due to time constraints. (DE # 31 at
14-15.) Defendants also argue that plaintiff has failed to present any evidence that the
delay was in any way based on plaintiff’s race. (Id.)
The Fourteenth Amendment to the United States Constitution states, in part, that
“[n]o state shall . . . deny to any person within its jurisdiction the equal protection of
the laws.” U.S. CONST. amend. XIV, § 1. To establish a violation of the Equal Protection
clause, a plaintiff must prove that “(1) he is otherwise similarly situated to members of
the unprotected class; (2) he was treated differently from members of the unprotected
class; and (3) the defendant acted with discriminatory intent.” Greer v. Amesqua, 212
F.3d 358, 370 (7th Cir. 2000); see also Xiong v. Wagner, 700 F.3d 282, 295 (7th Cir. 2012)
(“To establish a violation of the Fourteenth Amendment’s Equal Protection Clause, a
plaintiff must demonstrate that a state actor has treated him differently from persons of
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a different race and that the actor did so purposefully.” (citation and quotation
omitted)).
“A plaintiff must demonstrate intentional or purposeful discrimination to show
an equal protection violation.” Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1994)
(citation and quotation omitted). “‘Discriminatory purpose,’ however, implies more
than intent as volition or intent as awareness of consequences.” Id. (quoting Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)). “It implies that the
decisionmaker singled out a particular group for disparate treatment and selected his
course of action at least in part for the purpose of causing its adverse effects on the
identifiable group.” Id.
As noted above, plaintiff contends that defendants discriminated against him by
allowing two white inmates to receive disciplinary hearings before plaintiff did.
(DE # 27 at 4.) Defendants point out that defendant has no evidence that either
defendant Lake or defendant Kroemer discriminated against plaintiff based on
plaintiff’s race, and defendants Lake and Kroemer have therefore met their initial
burden on summary judgment. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010).
As for plaintiff’s allegations regarding the two white inmates, although plaintiff
contends that Matt McKee arrived in segregation after plaintiff, but still received a
disciplinary hearing before plaintiff did, the undisputed facts indicate that this
allegation is not true. McKee violated Allen County Jail rules on September 11, 2009,
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(DE # 31 at 6; DE # 30-1 at ¶ 29), which was six days before plaintiff committed his
infraction. (DE # 31 at 4; DE # 30-1 at ¶ 12.) Defendants have also presented evidence
which shows that McKee was actually being held outside of the general population
prior to the date he entered disciplinary segregation, due to suicide precautions.
(DE # 31 at 6; DE # 30-1 at ¶ 30.) Finally, the undisputed evidence also shows that the
Allen County Jail holds disciplinary hearings in the order of the dates of the alleged
violations. (DE # 31 at 3; DE # 30-1 at ¶¶ 8-9.) Thus, the fact that McKee had his
disciplinary hearing before plaintiff did is consistent with the jail policy of scheduling
hearings based on the date of the violation, and is not evidence of any sort of
discriminatory intent.
The court is therefore left with plaintiff’s allegation that prison officials
discriminated against him based on his race when Amber Graves, a white inmate, was
given a disciplinary hearing prior to plaintiff, despite the fact that the allegations
against both Graves and plaintiff arose out of the same event. In this case, defendants
have presented evidence that plaintiff’s disciplinary hearing was not held on September
29, 2009 because of time constraints. (DE # 30-1 at ¶¶ 14-21.) Defendants have also
presented evidence which shows that several other inmates, who were also disciplined
for violations that occurred on September 17, 2009 and were scheduled to have their
hearings on September 29, 2009, did not have their hearings on September 29 due to
time constraints.1 (Id. at ¶ 21.) Additionally, defendants have presented evidence that
1
Nothing in the record reveals the race of these inmates.
12
plaintiff’s next scheduled disciplinary hearing on October 5, 2009 was rescheduled
because plaintiff had to be in court that day. (Id. at ¶ 23.) And, as noted above, plaintiff’s
disciplinary hearing was finally held on October 7, 2009. (Id. at ¶¶ 24-25).
Plaintiff has not responded to defendants’ motion for summary judgment, and
therefore, has not submitted any evidence indicating that the delay in his disciplinary
hearing was in any way based on his race. The only evidence explaining the reason for
the delay in this case is that the Board did not have time to hold plaintiff’s hearing on
September 29, 2009, and that plaintiff’s next scheduled hearing, on October 5, 2009, had
to be rescheduled because plaintiff had to be in court that day. Plaintiff has failed to
offer any evidence that rebuts defendants’ explanation for the delay.
Additionally, the fact that plaintiff’s hearing was held at a later date than
Graves’s hearing is not sufficient to create an issue of material fact on this claim. Shango,
681 F.2d at 1104 (“[I]solated events that adversely affect individuals are not presumed
to be a violation of the equal protection clause.” (citation omitted)); see also Moredock v.
Hanlon, No. 1:08-cv-995, 2008 WL 5391993, at *1 (S.D. Ind. Dec. 22, 2008) (“[T]he inherent
discretion of prison authorities to manage internal discipline necessitates that some
prisoners will receive more favorable treatment than others.”). Plaintiff’s failure to offer
any evidence which would allow a rational jury to conclude that plaintiff’s disciplinary
hearing was delayed because plaintiff is black entitles defendants Lake and Kroemer to
summary judgment on plaintiff’s equal protection claim. Hearn v. Kennell, 433 F. App’x
483, 484 (7th Cir. 2010) (“[S]ummary judgment was proper because [plaintiff] has put
13
forth no evidence that the prison’s decision . . . was motivated by intentional or
purposeful discrimination.”)
C. Plaintiff’s Claim Against Allen County Sheriff Kenneth Fries
Plaintiff has also sued Allen County Sheriff Kenneth Fries in his official capacity
for “having in place customs, practices, policies[,] and procedures which cause, allow[,]
and condone the unconstitutional punishment of inmates on the basis of their race.”
(DE # 27 at 1.) Suits against county officials in their official capacities are treated as suits
against the County itself. Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008); Rome v.
Myers, 353 F. App’x 35, 36 (7th Cir. 2009). Thus, plaintiff’s claim against Allen County
Sheriff Kenneth Fries in his official capacity is treated as a claim against Allen County.
“Governmental entities cannot be held liable for the unconstitutional acts of their
employees unless those acts were carried out pursuant to an official custom or policy.”
Grieveson, 538 F.3d at 771. “The ‘official policy’ requirement for liability under § 1983 is
to distinguish acts of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for which the
municipality is actually responsible.” Id. (quotations and citations omitted) (emphasis in
original).
A plaintiff can establish municipal liability under Section 1983 by producing
evidence of:
“(1) an express policy that, when enforced, causes a constitutional
deprivation; (2) a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled as
to constitute a custom or usage with the force of law; or (3) an allegation that
the constitutional injury was caused by a person with final policymaking
authority.”
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Phelan v. Cook Cnty., 463 F.3d 773, 789 (7th Cir. 2006) (quoting Roach v. City of Evansville,
111 F.3d 544, 548 (7th Cir. 1997)). Because plaintiff has not responded to defendants’
motion for summary judgment, the court is left with the allegations in his complaint as
a guide to ascertain the unconstitutional policy plaintiff alleges Sheriff Fries maintained.
As noted above, in his complaint, plaintiff alleges that Sheriff Fries had “in place
customs, practices, policies[,] and procedures which cause, allow[,] and condone the
unconstitutional punishment of inmates on the basis of their race.” (DE # 27 at 1.) Thus,
it appears that plaintiff might be attempting to prove municipal liability under the
express policy theory. The express policy theory applies when a plaintiff can point to an
explicit policy or an omission in a policy that violates a constitutional right. Calhoun v.
Ramsey, 408 F.3d 375, 379-80 (7th Cir. 2005). The only policy regarding the scheduling of
disciplinary hearings the court has evidence of, however, is that the jail held
disciplinary hearings in the order of the alleged violations, which is not in itself
unconstitutional.
Plaintiff is therefore left to proceed under the “widespread practice” theory of
municipal liability.2 Defendants argue that plaintiff has no evidence of a “widespread
practice.” (DE # 31 at 15-16.) By pointing out plaintiff’s lack of evidence, defendants
have met their initial burden under this theory. Carmichael, 605 F.3d at 460. Because
2
Plaintiff has not alleged that any of the individual defendants in this case were
final policymakers, and has not alleged that the Allen County Sheriff was personally
involved in the alleged Constitutional violation. Baskin v. City of Des Plaines, 138 F.3d
701, 705 (7th Cir. 1998) (“[O]fficial with final policymaking authority must actually have
participated in the constitutional wrongdoing[.]” (citing Cygnar v. City of Chicago, 865
F.2d 827, 847 (7th Cir. 1989)). The court will therefore not address the final policymaker
theory of municipal liability.
15
defendants have made this initial showing, the burden shifts to plaintiff to come
forward with specific facts demonstrating that there is a genuine issue for trial. Id.
Plaintiff has failed to meet this burden as to a widespread practice.
Plaintiff has alleged one instance of racial discrimination in the scheduling of a
disciplinary hearing. Plaintiff does not allege that this happened to him more than once
or that other inmates were affected by this alleged practice. In this case, plaintiff’s
evidence of this one alleged incident is insufficient to create an issue of material fact as
to whether this practice was widespread. See Estate of Moreland v. Dieter, 395 F.3d 747,
759-60 (7th Cir. 2005) (three incidents of improper use of pepper spray not sufficient to
constitute a widespread practice); Palmer v. Marion Cnty., 327 F.3d 588, 595-96 (7th Cir.
2003) (two incidents of observing inmate-on-inmate violence where guards failed to
intervene not sufficient to constitute widespread practice); see also Thomas v. Cook County
Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (“[T]here is no clear consensus as to how
frequently such conduct must occur to impose Monell liability, except that it must be
more than one instance[.]” (citation and quotation omitted)). In short, plaintiff has failed
to create a genuine issue of material fact regarding the existence of a widespread
practice, and cannot rest his official capacity claim against Allen County on this theory.
Plaintiff has failed to respond to defendants’ motion for summary judgment with
any evidence or argument which would raise an issue of material fact on his municipal
liability claim. Therefore, defendants’ motion for summary judgment as to plaintiff’s
municipal liability claim will be granted.
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IV.
Conclusion
For the foregoing reasons, defendants Captain Trina Haywood, Officer Yeaetha
Dillon (erroneously identified in the amended complaint as Yeaetha Dylan), Officer
Jeffrey Kroemer, Lieutenant John Gonzales, Officer Kayle Schlemmer, Officer Robbie
James, Officer Penny Lake, and the Allen County Sheriff’s motion for summary
judgment (DE # 30) is GRANTED.3
There being no claims remaining against defendants in this case, the clerk is
directed to ENTER FINAL JUDGMENT as follows:
Judgment is entered in favor of defendants Captain Trina Haywood,
Officer Yeaetha Dillon (erroneously identified in the amended
complaint as Yeaetha Dylan), Officer Jeffrey Kroemer, Lieutenant John
Gonzales, Officer Kayle Schlemmer, Officer Robbie James, Officer
Penny Lake, the unidentified shift commander, and the Allen County
Sheriff, and against plaintiff Channing Scott, who shall take nothing by
way of his complaint.
SO ORDERED.
Date: September 24, 2013
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
3
In his amended complaint (DE # 27), plaintiff also appears to bring a claim
against an unidentified shift commander at the jail. (DE # 27.) Because defendant has
failed to identify this defendant, the unnamed shift commander is dismissed from this
case. Williams v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007) (“Due to [the plaintiff]’s
failure to identify this defendant . . . the district court’s grant of summary judgment for
this unknown and unnamed defendant is modified to dismiss this defendant from the
case.”).
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