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WINDER v. LEAK

April 7, 1992

LANEER WINDER, Plaintiff,
v.
SPENCER LEAK, et al., Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Laneer Winder, an inmate awaiting trail at the Cook County Department of Corrections ("CCDOC"), brings this civil rights action against James Bulley, Captain of the Residential Treatment Unit ("RTU") at CCDOC, and Correctional Officers Mario Ledesma, Michael Sanders and Shirley Ashley. Defendants Ledesma and Bulley now move for summary judgment on Counts I, II and IV of Winder's second-amended complaint. For the reasons set forth below, defendants' motion for summary judgment is granted in part and denied in part.

 I. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 II. Background

 Winder complained about this treatment to Captain Bulley, threatening to file a grievance against Ledesma with the proper authorities. According to Winder, Bulley informed Winder that, if he filed such a grievance, Bulley would instruct Ledesma to file a disciplinary report against Winder and that, consequently, he would be placed in isolation. Winder proceeded to file the grievance against Ledesma, prompting Ledesma to immediately process a disciplinary report charging Winder with using abusive language, threatening the staff, refusing to obey orders and being in an unauthorized area. Ledesma's disciplinary report was the subject of a hearing, conducted on May 14, 1990. Winder contends that at this hearing he was denied the opportunity to call witnesses in his defense. Subsequent to the Board's finding that Winder "committed the prohibited acts," he was placed in isolation for twelve days.

 In his second-amended complaint, Winder alleges two additional incidents giving rise to claims against Sanders and Ashley. While Winder concedes that the facts surrounding these occurrences do not directly impact on Ledesma and Bulley, Winder submits that they are important to the present motion in that they support the existence of a policy or custom of using the prison disciplinary process as retribution for the filing of a grievance. The first episode occurred on June 6, 1990, at which time Winder refused to allow another inmate, whom he believed was a homosexual, to push Winder in his wheelchair from Cermak Hospital back to his dorm in RTU. Winder claims that he feared that other inmates would suspect that he was a homosexual. Winder "had words" with the inmate, but refused to inform Sanders of what was said. In response, Sanders purportedly slapped Winder across the face. Winder filed a grievance complaining of Sanders' conduct. At some point shortly before or shortly after Winder decided to file his grievance, Sanders wrote a disciplinary report against Winder charging him with using disrespectful language, making threats and disobeying orders. Again, a hearing was held and Winder allegedly was prohibited from presenting witnesses in his defense. After a finding that he committed the acts as charged, Winder was sent to isolation for three days.

 Finally, Winder contends that on August 21, 1990, defendant Ashley cursed at Winder and took his wheelchair notwithstanding his protestations. As a result of this incident, Ashley filed a disciplinary report against Winder charging him with using disrespectful language, making threats and disobeying orders. Winder claims that he expressed his intent to file a grievance against Ashley, but was told by Ashley that if he did so "he would be in more trouble than he already was." Consequently, Winder did not file a grievance. Once again, Winder was placed in isolation after a hearing, at which the Board found that he committed the alleged violations. At this particular hearing, however, Winder did not seek to introduce defense witnesses, believing that such a request would be futile.

 III. Excessive Use of Force (Count I)

 The gravamen of Ledesma's argument in support of his motion for summary judgment on Count I of Winder's second-amended complaint is twofold. First, Ledesma claims that his actions were not malicious, but rather constituted a necessary response to an inmate who disobeyed orders. Second, Ledesma contends that the force exerted was not "excessive," as evinced by Winder's lack of injury.

 It is well settled that "'the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.'" Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670, 97 S. Ct. at 1401, 1412, 51 L. Ed. 2d 711 (1977)). In Whitley, the Court held that, in the context of a prison riot, "the question of whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing pain.'" Id. at 320-21, 106 S. Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)). Recognizing that "many of the concerns underlying . . . [the] holding in Whitley arise whenever guards use force to keep order," the Court in Hudson v. ...


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