Opinion
Case No. 3: 17-CV-623-NJR-MAB
05-30-2019
NED JAMES, Plaintiff, v. RODNEY BARKER and JEFFREY GARDINER, Defendants.
REPORT AND RECOMMENDATIONS BEATTY, Magistrate Judge :
The matter has been referred to United States Magistrate Judge Mark A. Beatty by United States District Judge Nancy J. Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the motion for summary judgment (Doc. 66). It is recommended the District Court adopt the following findings of fact and conclusions of law, and the motion for summary judgment (Doc. 66) be GRANTED IN PART, DENIED IN PART.
I. FINDINGS OF FACT
Following the Court's threshold review of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, the Court permitted Plaintiff to proceed on the following claims: (1) an Eighth Amendment claim for excessive force against Defendant Gardiner, (2) an Eighth Amendment claim for failure to protect against Defendant Barker, (3) an Eighth Amendment claim for deliberate indifference against Defendants Gardiner and Barker ("Defendants"), and (4) an assault and battery state law tort claim against Defendants. Defendants filed a motion for summary judgment on March 20, 2019 (Doc. 66). Plaintiff filed a response in opposition to the motion (Doc. 72).
Construed in the light most favorable to Plaintiff, the evidence and the reasonable inferences that can be drawn from it establish the following relevant facts for purposes of the instant summary judgment motion.
A. Transfer of Cells and Alleged Assault
On July 8, 2016, Plaintiff was incarcerated at Menard Correctional Center ("Menard") when personnel transferred him from 4 gallery of the north 2 cell house to the 6 gallery of the north 2 cell house (Doc. 67-1, p. 17: 13-16). Plaintiff asserts Defendants, along with a few other non-defendant correctional officers approached Plaintiff's cell and instructed him to pack his property because he was being transferred to a different segregation cell (Id. at 20: 3-8; 33: 14-16). After packing his property for an hour, correctional officers, possibly Defendant Gardiner, placed Plaintiff in handcuffs behind his back, gathered his belongings, and escorted him to 6 gallery.
Upon arriving at cell 47 on 6 gallery, Plaintiff testified after his handcuffs were removed, Defendant Gardiner pulled down his pants and "stuck his finger in [him]." (Id. at 26: 11-12). Plaintiff later testified his handcuffs were not removed until Defendant "[Gardiner] got aggressive when he pulled my boxers down and inserted his fingers into me." (Id. at 43: 21-23). When asked where the other correctional officers were at the time of the alleged assault, Plaintiff testified they were "standing right there." (Id. at 62: 2). Plaintiff later testified Defendant Gardiner and the other three or four correctional officers were not inside the cell during the alleged assault, but instead were outside of the cell and reaching their hands through the chuckhole to grab him (Id. at 67: 14-19). The cell door was solid with no bars, so reaching through the chuckhole was the only way for the four or five officers to grab Plaintiff at that point (Id. at 81: 4-12).
Plaintiff then testified that while the officers were holding Plaintiff by the lead chain attached to his handcuffs, Defendant Gardiner, who was also outside the cell, reached through the chuckhole, pulled down Plaintiff's pants, and inserted his fingers into Plaintiff's anus three or four times. (Id. at 81: 24). During that time, Plaintiff testified his hands were in the chuckhole and he was trying to get away. (Id. at 91: 4-23).
A "lead chain" is a chain secured to an offender's waist with a triangle fasten to the back of the waist restraint, which allows security staff members to safely escort the offender.
B. After the Alleged Assault
Plaintiff testified he immediately informed the officers he required medical attention (Id. at 96: 14-21). He also testified he spoke to a nurse several hours later about his need for medical attention and was still bleeding at that time (Id. at 101:14-20). Around 3 p.m., Plaintiff's correctional counselor, Jason Vasquez, spoke with Plaintiff then noted in Plaintiff's cumulative counseling report that "[Plaintiff] wanted to talk to Dr. Butler cause [sic] he is back in seg . . . I told him I would tell her . . . I called and let her know." (Doc. 67-7, p. 13). The counseling note does not mention the alleged assault (Id.).
On July 12, Plaintiff filed a grievance regarding his conditions of confinement and the alleged sexual assault by Defendants Gardiner and Barker (Doc. 67-4, p. 11). The grievance predominantly takes issue with his ability to breathe within his cell and requests a transfer to Dixon Correctional Center ("Dixon"), but it does briefly reference a sexual assault (Id. at 11-13). Specifically, within the two-page grievance, Plaintiff solely states Defendants Barker and Gardiner "sexually assaulted [him]." Beyond naming the alleged perpetrators, Plaintiff does not provide any other details about the alleged assault. On July 13, Menard medical conferred with Plaintiff then noted in an outpatient progress note that "offender does not have an inhaler in his cell." (Doc. 67-5, p. 2). The note does reference the alleged assault. In a letter dated July 17, Plaintiff wrote the Director of the IDOC seeking transfer from Menard to Dixon (Doc. 67-4, p. 6-8). Again, like his July 12 grievance, the letter predominantly takes issue with his ability to breathe within his cell and requests a transfer to Dixon (Id.). Plaintiff solely states staff "sexually assaulted [him]." (Id. at 8). Beyond that, Plaintiff does not provide any other details about the alleged assault.
On July 27, the Administrative Review Board ("ARB") contacted Menard officials about Plaintiff's claim of sexual assault then Menard mental health and medical personnel conferred with Plaintiff that day (Doc. 67-5, p. 2). After meeting with Plaintiff, Menard medical personnel noted in an outpatient progress note that Plaintiff stated, "I don't want a rape kit." (Id.). The entry further notes Plaintiff signed a 'right to refuse' medical services (Id.). Plaintiff testified he did not refuse treatment, but rather medical personnel told him "it's too late for you pretty much to do a rape kit if they didn't do it the same day." (Doc. 67-1, 138: 9-12). That same day IDOC records indicate an investigation into Plaintiffs sexual assault allegations commenced (Doc. 67-6). Five days later, IDOC personnel transferred Plaintiff from Menard to Dixon which pleased Plaintiff (Doc. 67-1, 127: 2-9).
II. CONCLUSIONS OF LAW
A. Summary Judgment Standard
The standard applied to summary judgment motions under Federal Rule of Civil Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A "material fact" is one identified by the substantive law as affecting the outcome of the suit. A "genuine issue" exists with respect to any such material fact . . . when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." On the other hand, where the factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is nothing for a jury to do. In determining whether a genuine issue of material fact exists, we view the record in the light most favorable to the nonmoving party.Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted).
B. Excessive Force Standard
The appropriate inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). In order to determine whether force was applied in an effort to maintain or restore discipline or maliciously and sadistically to cause harm, the Court examines various factors, including (1) the need for the application of force, (2) the relationship between the need and the force applied, (3) the threat reasonably perceived by the officer, (4) the effort made to temper the severity of the force, and (5) the extent of the injury suffered. Outlaw v. Newkirk, 259 F. 3d 833, 837 (7th Cir. 2001). Incidental bumping is not enough to meet the standard of excessive force. Fillmore v. Page, 358 F. 3d 496, 504 (7th Cir. 2004) (citing Dewalt v. Carter, 224 F. 3d 607, 620 (7th Cir. 2000)). The use of force must be repugnant to the conscience of mankind. Hudson at 9-10.
Here, Plaintiff has put forth enough evidence to survive summary judgment on his claim for excessive force against Defendant Gardiner. Put simply, when taking the factual record as a whole, a rational jury could find for Plaintiff.
Defendants argue "Plaintiff's testimony that four to five officers had their arms through a chuckhole while they held Plaintiff's body is simply unbelievable." (Doc. 67, p. 8). To support their proposition that some alleged fact patterns may be dismissed if they are unbelievable, Defendants cite a line of cases. Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir.2002) (holding "no evidentiary hearing is required in a prisoner's case (or anyone else's, for that matter) when the factual allegations are incredible") (emphasis added); Hall v. Taylor, No. CIV. 10-947-GPM, 2011 WL 663744, at *3 (S.D. Ill. Feb. 12, 2011) (finding a plaintiff's claim frivolous and dismissing it pursuant to 28 U .S.C. § 1915A) (emphasis added).
Plaintiff's case is distinguishable from the above cases because his case made it through threshold review to the summary judgment stage. As implausible as Plaintiff's account might seem, it is not the Court's function to make credibility determinations at this stage of the case. "Where the parties present two vastly different stories—as they do here—it is almost certain that there are genuine issues of material fact in dispute." Washington v. Haupert, 481 F.3d 543, 550 (7th Cir. 2007) (citing Payne v. Pauley, 337 F.3d 767, 770; see also Qian v. Kautz, 168 F.3d 949, 953 (7th Cir.1999) ("[S]ummary judgment is appropriate when there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them."). "On summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder." Payne, 337 F.3d at 770 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). As such, viewing the facts in the light most favorable to Plaintiff, he has alleged enough facts for a jury to find he suffered a constitutional violation pursuant to 42 U.S.C. § 1983 by being subjected to excessive force. Therefore, the Court should deny Defendants' motion for summary judgment as it relates to count 1.
The Court next asks whether Plaintiff has put forward enough evidence to survive summary judgment on his claim of failure to protect against Defendant Barker.
C. Failure to Protect Standard
"[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994) (cite and quote omitted). A prison official's deliberate indifference to a substantial risk of serious harm may thus violate the Eighth Amendment. Id. at 828, 114 S. Ct. at 1974. A claim that a prison official was deliberately indifferent to such a risk has both an objective and a subjective component. Id. at 834. First, the harm to which the prisoner was exposed must be an objectively serious one. Ibid. There is no dispute that the threat of which Plaintiff was complaining (being sexually assaulted) meets this criterion. The issue instead focuses on the subjective prong of the deliberate indifference claim, which requires that the official must have actual, and not merely constructive, knowledge of the risk in order to be held liable; specifically, he "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837. Although this inquiry focuses on an official's subjective knowledge, a prisoner need not present direct evidence of the official's state of mind: "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence...." Id. at 842. "In failure to protect cases, '[a] prisoner normally proves actual knowledge of impending harm 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) (per curiam) (quoting McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir.1991), overruled on other grounds by Farmer).
Here, Plaintiff has not adduced enough evidence that Defendant Barker knew he was in danger of being harmed by Defendant Gardiner. Plaintiff testified he could not recall whether Defendant Gardiner stated he was going to assault him prior to the alleged assault. He further testified that during the assault he never stated he was being assaulted but rather complained that officers were hurting him. While Plaintiff speculates Defendant Barker may have been aware of prior threats, that is insufficient to survive summary judgment. Therefore, the Court should grant Defendants' motion for summary judgment as it relates to count 2.
The Court next asks whether Plaintiff has put forward enough evidence to survive summary judgment on his claim of deliberate indifference against Defendants Barker and Gardiner.
D. Deliberate Indifference Standard
The Supreme Court has recognized that deliberate indifference to the serious medical needs of prisoners may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a claim for deliberate indifference to a serious medical need, there are "two high hurdles, which every inmate-plaintiff must clear." Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir. 1999). First, the plaintiff must demonstrate he suffered from an objectively serious medical condition. Id. at 591-92.
Here, Plaintiff testified the alleged assault caused his anus to bleed so severely it bled for hours and saturated his boxers with blood. Defendants argue Plaintiff's alleged condition was not an objectively serious medical problem for several reasons. First, Plaintiff proffered conflicting testimony. Again, while Plaintiff's testimony may be conflicting, the Court cannot make credibility determinations at this juncture. Additionally, this evidence alone is insufficient to show at the summary judgment stage that Plaintiff was not suffering from an objectively serious medical condition. Second, Defendant contends "Plaintiff assert[ed] he requested medical treatment once all the officers—including the Defendants—were no longer in his presence." (Doc. 67, p. 15). While Plaintiff may have responded "no" when asked "was anybody still around when you stated you wanted medical treatment?," he then followed up by saying "after I told them they left." (Doc. 67-1, p. 25) (emphasis added). This again highlights Plaintiff's potentially conflicting testimony but is insufficient to show at this stage that Plaintiff was not suffering an objectively serious medical condition. Lastly, the remainder of Defendants' evidence regarding the seriousness (or lack thereof) of Plaintiff's medical condition relates to his purported conflicting testimony.
Accordingly, given the evidence, Plaintiff has provided enough evidence at this stage that he had an objectively serious medical condition. Thus, the only question for the Court is whether Defendants acted with deliberate indifference with respect to Plaintiff's condition.
To show that prison officials acted with deliberate indifference, a plaintiff must put forth evidence that prison officials not only knew that the prisoner's medical condition posed a serious health risk, but they consciously disregarded that risk. Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). "This subjective standard requires more than negligence and it approaches intentional wrongdoing." Id.; accord Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) ("Deliberate indifference is intentional or reckless conduct, not mere negligence."); McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010) ("[N]egligence, even gross negligence does not violate the Constitution.").
Here, Plaintiff testified "I told them I needed medical attention. I told everybody that was standing there, Barker, Garner, and the rest of the officers." (Doc. 67-1, 96: 2-6). Defendants again argue Plaintiff's inconsistent testimony regarding whether he notified them about his need for medical attention indicates they were not aware of Plaintiff's desire for medical treatment. The Court cannot accept Defendant's proffered inference because it requires a credibility determination. Therefore, the Court should deny Defendants' motion for summary judgment as it relates to count 3.
The Court next asks whether Plaintiff has put forward enough evidence to survive summary judgment on his claim of assault and battery against Defendants.
E. Assault and Battery Standard
Under Illinois law, "[w]ith respect to civil liability, an assault can be defined as an intentional, unlawful offer of corporal injury by force, or force unlawfully directed, under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented." Parrish v. Donahue, 110 Ill.App.3d 1081, 66 Ill.Dec. 860, 443 N.E.2d 786, 788 (1982). See also Hamilton v. Spraying Sys., Inc., No. 02 C 9093, 2004 WL 2191330, at *16 (N.D.Ill. Sept. 28, 2004) (quoting Yang v. Hardin, 37 F.3d 282, 286 (7th Cir.1994)) ("Illinois law defines civil assault as 'an intentional, unlawful offer of corporal injury by force, or force unlawfully directed, under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented.' "); McNeil v. Carter, 318 Ill.App.3d 939, 252 Ill.Dec. 413, 742 N.E.2d 1277, 1281 (2001) (citing Rosenberg v. Packerland Packing Co., 55 Ill.App.3d 959, 13 Ill.Dec. 208, 370 N.E.2d 1235 (1977)) ("A claim of assault must include an allegation of a reasonable apprehension of an imminent battery.").
A "battery" under Illinois law is the willful, unauthorized touching of the person of another or a successful attempt to commit violence on the person of another. See Hennessy v. Commonwealth Edison Co., 764 F.Supp. 495, 507 (N.D.Ill.1991) ("In order to prove a battery, [plaintiff] must establish that [defendant] committed intentional acts resulting in offensive contact with [plaintiff's] person, and that [plaintiff] did not consent to such conduct."); Hernandez v. Schittek, 305 Ill.App.3d 925, 238 Ill.Dec. 957, 713 N.E.2d 203, 207 (1999) ("A battery is an unauthorized touching of another's person."); Kling v. Landry, 292 Ill.App.3d 329, 226 Ill.Dec. 684, 686 N.E.2d 33, 41 (1997) ("In order to state a cause of action for intentional battery, a plaintiff must allege a willful touching of another person without the consent of the person who is touched.").
Here, like Plaintiff's excessive force claim, Plaintiff has put forth enough evidence to survive summary judgment on his claim for assault and battery against Defendant Gardiner. However, given the record, Plaintiff has not put forth enough evidence to survive summary judgment on his claim for assault and battery against Defendant Barker. Importantly, there is not enough evidence to support a finding that Defendant Barker subjected Plaintiff to unlawful force or injury. Therefore, the Court should grant Defendants' motion for summary judgment as it relates to Defendant Barker; it should deny the motion as it relates to Defendant Gardiner.
The Court next asks whether Defendants are entitled to qualified immunity.
F. Qualified Immunity Standard
Considering the conclusion that Defendant Gardiner is not entitled to summary judgment on Plaintiff's claims of excessive force, deliberate indifference, and assault and battery and Defendant Barker is not entitled to summary judgment on Plaintiff's claim of deliberate indifference, the Court must consider their argument that they are protected by qualified immunity.
"Generally, qualified immunity protects government agents from liability when their actions do not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Hernandez v. Cook Cnty. Sheriff's Office, 634 F.3d 906, 914 (7th Cir. 2011) (citing Purvis v. Oest, 614 F.3d 713, 720 (7th Cir. 2010)). "It protects 'all but the plainly incompetent or those who knowingly violate the law.'" Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether Defendants are entitled to qualified immunity, the Court must ask two questions: (1) whether the facts, taken in the light most favorable to the plaintiff, show that Defendants violated a constitutional right; and (2) whether that constitutional right was clearly established at the time of the alleged violation. Hernandez, 634 F.3d at 914 (citing Saucier v. Katz, 533 U.S. 194, 201-202 (2001)).
The Court has already determined Plaintiff put forth enough evidence to establish a genuine issue of fact as to whether Defendant Gardiner violated his rights under the constitution and state law. The only remaining issue is whether those rights were clearly established. With respect to count 1, prison officials have been on notice that inmates have certain rights against excessive force. "An unwanted touching of a person' s private parts, intended to humiliate the victim or gratify the assailant' s sexual desires, can violate a prisoner' s constitutional rights whether or not the force exerted by the assailant is significant." Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012) (citing Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009); Calhoun v. DeTella, 319 F.3d 936, 939- 40 ( 7th Cir. 2003). With respect to count 3, given the amount of civil litigation involving prisoners in this District, prison officials have clearly been on notice that inmates have certain rights against deliberate indifference to serious medical needs. With respect to count 4, like counts 1 and 3, prison officials have been on notice of clearly established statutory rights like assault and battery. Consequently, Defendants are not entitled to qualified immunity.
III. RECOMMENDATIONS
For the foregoing reasons, it is RECOMMENDED Defendants' motion for summary judgement (Doc. 66) be GRANTED IN PART, DENIED IN PART and that the Court adopt the foregoing findings of fact and conclusions of law. Specifically, the Court should: DENY Defendants' motion for summary judgment as it relates to count 1 (excessive force); GRANT Defendants' motion for summary judgment as it relates to count 2 (failure to protect); DENY Defendants' motion for summary judgment as it relates to count 3 (deliberate indifference); GRANT Defendants' motion for summary judgment on count 4 (assault and battery) as it relates to a Defendant Barker; DENY Defendants' motion for summary judgment on count 4 (assault and battery) as it relates to Defendant Gardiner; DENY Defendants' request for qualified immunity.
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law are due fourteen (14) days after service (see attached Notice).
DATED: May 30, 2019
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge