standards of decency are always violated . . . whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Id. (emphasis added). The Court, however, noted that "the Eighth Amendment's prohibition of 'cruel and unusual' punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.'" Id. (quoting Whitley, 475 U.S. at 327, 106 S. Ct. at 1088). The exertion of force against a handicapped individual, knocking that person to the floor and causing pain, is not de minimis for Eighth Amendment purposes.
Accordingly, Ledesma's motion for summary judgment on Count I of Winder's second-amended complaint is denied.
IV. Retaliatory Use of the Prison Disciplinary Process (Count II)
It is settled law that in order to hold either Ledesma or Bulley liable in their official capacities, Winder bears the burden of establishing that the claimed constitutional violation -- i.e., using the prison disciplinary process as retribution for the filing of a grievance -- was caused by an "official policy." Winder v. Leak, No. 90-3272, slip op. at 6 (N.D. Ill. Oct. 25, 1991) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978); Parsons v. Bourff, 739 F. Supp. 1266 (S.D. Ind. 1989)). In the absence of an official policy statement promulgated by the governing body itself, or a decision by an official possessing "final policymaking authority" in the area in question, Winder must show that the challenged conduct reflects "practices of state officials . . . so permanent and well settled as to constitute a 'custom or usage' with the force of law." Monell, 436 U.S. at 691, 98 S. Ct. at 2036 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613, 26 L. Ed. 2d 142 (1970)). In other words, Winder must demonstrate practices that are sufficiently widespread so as to give rise to an inference of actual or constructive knowledge on the part of the governmental entity employing the defendants. See Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 752, 98 L. Ed. 2d 765 (1988); Powe v. City of Chicago, 664 F.2d 639, 651 (7th Cir. 1981); McLin v. City of Chicago, 742 F. Supp. 994, 998 (N.D. Ill. 1990). Thus, a single incident of unconstitutional conduct is insufficient to establish the requisite custom and usage. See Oklahoma City v. Tuttle, 471 U.S. 808, 822-24, 105 S. Ct. 2427, 2435-36, 85 L. Ed. 2d 791 (1985); Hossman v. Blunk, 784 F.2d 793, 797 (7th Cir. 1986); Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985).
In order to meet this burden, Winder points to three incidents where CCDOC officers allegedly filed disciplinary reports against Winder after he voiced his intention to file a grievance against the correctional officer. However, even assuming a custom of using the disciplinary process in retaliation for the filing of grievances, Count II of Winder's second-amended complaint nonetheless must fall. In order to survive the instant motion for summary judgment, Winder must not only establish a policy or custom, but also an injury proximately caused by that policy or custom. City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989); Holmes v. Sheahan, 930 F.2d 1196, 1200 (7th Cir.), cert. denied, 112 S. Ct. 423, 116 L. Ed. 2d 443 (1991); see also Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38 ("It is when execution of a government's policy or custom . . . by those whose edits or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."); Strauss, 760 F.2d at 767 ("Proximate causation between the . . . policy or custom and the plaintiff's injury must be present."). As alleged by Winder, the injuries stemming from the filing of the disciplinary reports is the resulting punishment -- i.e., the period of isolation following each incident. This punishment, however, ensued only after an independent hearing by the Prison Disciplinary Board and a finding that Winder committed the acts as charged. Moreover, the punishment was set by the Board, not the defendants. In the absence of any evidence that defendants Ledesma and Bulley had any influence over the Board proceedings, we cannot conclude that the custom of filing the disciplinary reports, whatever the motivation, was the proximate cause of Winder's injuries. Cf. Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988) (cited in Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988)) (confronting the issue of proximate causation in the analogous situation of a deputy sheriff sued under § 1983 for false arrest, and concluding that "an independent intermediary breaks the chain of causation unless it can be shown that the deliberations were in some way tainted by the actions of the defendant"). Consequently, we grant Ledesma and Bulley's motion for summary judgment on Count II of Winder's second-amended complaint.
V. Denial of Due Process at the Disciplinary Hearings (Count IV)
In Count IV, Winder alleges that he was denied procedural due process by each of the defendants in that they "refused and/or discouraged plaintiff from presenting witnesses in his defense at CCDOC disciplinary proceedings." Although Winder names all of the defendants in this count, he does not specify whether he is suing them in their individual or official capacities. Accordingly, assuming Winder has sufficiently established a procedural due process violation,
we will examine Ledesma and Bulley's potential liabilities in regard to each capacity, personal and official.
A defendant sued in his individual capacity can only be held liable under § 1983 for his individual wrongdoing. Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985), cert. denied, 479 U.S. 816, 107 S. Ct. 71, 93 L. Ed. 2d 28 (1986). As stated in Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983): "Section 1983 creates a cause of action based upon personal liability and predicated upon fault. An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional violation." Thus, § 1983 does not recognize the doctrine of superiors' liability, McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir. 1984), or the doctrine of respondeat superior. Monell, 436 U.S. at 691, 98 S. Ct. at 2036.
Furthermore, "a showing of mere negligence on the part of state officials is insufficient to implicate an individual's due process rights for purposes of a claim under § 1983." Rascon, 803 F.2d at 273 (citing Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)). Rather, to prevail Winder must establish "that the official knowingly, willfully, or at least recklessly caused the alleged deprivation by his action or failure to act." Id. at 274; see also Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985).
Neither the second-amended complaint nor any of the pleadings and depositions submitted in response to the instant motion indicate that either Ledesma or Bulley bore any personal responsibility for the refusal of Winder's request to call witnesses at any of the disciplinary hearings. Indeed, neither defendant participated at those hearings. Nor are they accountable, by virtue of their positions, for the establishment or implementation of the procedures governing such prison disciplinary hearings. In the absence of any evidence indicating that either Ledesma or Bulley knowingly or recklessly caused the alleged deprivation, Winder's Count IV allegations against those defendants in their individual capacities must fall.
As discussed supra Section IV, an action brought against the defendants in their official capacities is essentially a suit against the governmental entity which employs them. As such,Winder must demonstrate that the purported denial of due process at the prison disciplinary hearings stemmed from an official policy or custom attributable to the governmental entity itself. Monell, 436 U.S. at 690-91, 98 S. Ct. at 2035-36; Powe, 664 F.2d at 649. In order to meet this burden, Winder does not point to an official policy statement promulgated by the governing body, nor does he claim that the actions of those depriving him of his due process rights represent official policy by virtue of their positions as "final policymakers." Instead, Winder points to the circumstances of his individual hearings, arguing that these occasions of constitutional deprivation are sufficient to constitute a well-established, pervasive practice having the force of law (i.e., a "custom or usage"). Specifically, according to his second-amended complaint and deposition filed in response to the present motion, "on at least two occasions, [Winder] was told that he could not present witnesses at his disciplinary hearings." Winder Response at 6.
After careful review of each document submitted by Winder, we are convinced that he has set forth facts sufficient to establish that he requested to present witnesses at the May 14, 1990 hearing, but was denied. However, with regard to the second hearing, during which Sander's charges were investigated, Winder's assertion is belied by his own statements:
Q. You mentioned there were two to three other inmates who may have witnessed this. Was this gay or this Petricelli or this inmate that you call a homosexual, was he one of those inmates?