JOHNSON v. MERRITT et al

Filing 76

Entry Discussing Motion for Summary Judgment - The Defendant's 60 motion for summary judgment is denied. The plaintiff's 67 motion to suppress deposition is denied. The plaintiff's 48 motion to appoint counsel is granted to the extent that the Court will attempt to recruit counsel to represent the plaintiff at trial. A trial date will be set through a separate order. (See Entry) Signed by Judge William T. Lawrence on 12/18/2015. Copy sent to Plaintiff via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ANTONIO JOHNSON,
Plaintiff,
v.
M. MERRITT, et al.,
Defendants.

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Case No. 2:13-cv-0441-WTL-DKL

Entry Discussing Motion for Summary Judgment
Plaintiff Antonio Johnson brings this action pursuant to pursuant to Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), alleging that,
while Johnson was in inmate of the United States Penitentiary in Terre Haute, Indiana (“USP Terre
Haute”), defendant Officer Merritt assaulted him and defendant Officer Ofsansky failed to protect
him from this assault. Arguing that Johnson cannot show that he personally participated in the
alleged constitutional violation, Ofsansky moves for summary judgment on Johnson’s Bivens
claim against him. For the following reasons, Ofsansky’s motion for summary judgment [dkt 60]
is denied.
I. Summary Judgment Standard
A motion for summary judgment asks that the Court find that a trial based on the
uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would
conclude in the moving party’s favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary
judgment, the non-moving party must set forth specific, admissible evidence showing that there is
a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).

Whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing
that the materials cited do not establish the absence or presence of a genuine dispute or that the
adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).
Affidavits or declarations must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.
Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion
can result in the movant’s fact being considered undisputed, and potentially the grant of summary
judgment. Fed. R. Civ. P. 56(e). Furthermore, reliance on the pleadings or conclusory statements
backed by inadmissible evidence is insufficient to create an issue of material fact on summary
judgment. Id. at 901.
II. Facts
Johnson alleges that on or about December 5, 2012, while he was being escorted by
defendant Officer Merritt at the USP Terre Haute, Merritt assaulted him by slamming his face into
a stairwell wall. Johnson further alleges that defendant Ofsansky failed to intervene to stop the
assault. While Johnson testified at his deposition that the assault lasted “ten to twelve seconds”
and that he does not know how far away Ofsansky was during the alleged assault, Ofsansky does
not dispute that he was present during the escort.
III. Discussion
Ofsansky moves for summary judgment arguing that because Johnson has no personal
knowledge of his whereabouts during the alleged assault, he cannot be held liable for failing to
intervene. It is true that to state a claim that a defendant violated his civil rights, the plaintiff must

show that the defendant personally participated in the alleged deprivation. See Vance v. Rumsfeld,
701 F.3d 193, 203 (7th Cir.2012) (“[L]iability under a Bivens-like remedy is personal.”) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 676–77, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). But Ofsansky
does not argue that he was not aware of the escort or that he was not nearby when the alleged
assault took place. In fact, it is undisputed that he was. Ofsansky merely relies on the fact that
Johnson cannot say precisely where he was during the alleged assault. The Court therefore finds a
genuine issue of fact regarding Ofsansky’s knowledge of the alleged assault. In other words, based
on the evidence presented, a reasonable jury could infer that Ofsansky failed to protect Johnson
from the alleged assault.
III. Conclusion
For the foregoing reasons, Ofsansky’s motion for summary judgment [dkt 60] is
denied. The plaintiff’s motion to suppress deposition [dkt 67] is denied. The plaintiff’s motion
to appoint counsel [dkt 48] is granted to the extent that the Court will attempt to recruit counsel
to represent the plaintiff at trial. A trial date will be set through a separate order.
IT IS SO ORDERED.

_______________________________
Date: 12/18/15
Distribution:
Antonio Johnson
07114-003
Hazelton USP
P.O. Box 2000
Bruceton Mills, WV 26525
All electronically registered counsel

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana