The opinion of the court was delivered by: MILTON I. SHADUR
All defendants now move for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons set forth in this memorandum opinion and order, Jockisch's and Nelson's motions are granted and Fairman's and Springborn's motions are denied.
Summary Judgment and General Rule 12
Familiar Rule 56 principles impose on movants the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)), but that requirement does not destroy Rule 56's "utility as a vehicle for the final disposition of lawsuits without the need for an evidentiary hearing" ( Wilcox v. Niagara of Wis. Paper Corp., 965 F.2d 355, 356 (7th Cir. 1992)). For Rule 56 purposes a "genuine" issue does not exist unless record evidence would permit a reasonable factfinder to adopt the nonmovant's view ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)), and only facts that would prove outcome-determinative under the substantive law are "material" ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991)).
In both the latter respects this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" in the light most favorable to the nonmovant ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)). While that standard is applied with added rigor where intent is in issue, that does not negate the potential for summary judgment in such cases ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)). Moreover, "a plaintiff facing the prospect of summary adjudication cannot 'sit back and simply poke holes in the moving party's summary judgment motion'" ( Young In Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993)).
This Court's General Rule ("GR") 12 helps the district court to cull the wheat from the chaff in applying those principles (see Stewart v. McGinnis, 5 F.3d 1031, 1993 U.S. App. LEXIS 24686, at *3-*8 (7th Cir.))--that is, "to smoke out quickly whether there are really disputed factual issues and, if so, whether they are really material (that is, 'outcome determinative')" (Moore v. NutraSweet Co., No. 92 C 1046, 1993 U.S. Dist. LEXIS 13820, at *5 n.5 (N.D. Ill. Sept. 23)).
Here only defendants have submitted a GR 12 filing.
Whatever the reason for the lapse by Rutledge's able appointed counsel in not responding with a GR 12(n) statement (though it has hampered the analysis of the case), such failure does not necessarily seal Rutledge's fate: Rule 56(e) teaches that a district court may deem admitted only properly supported statements from the movant's GR 12(m) statement ( Stewart, 5 F.3d 1031, 1993 U.S. App. LEXIS 24686, at *3-*8). Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992) explains:
Strict enforcement of Rule 12(n) does not mean that a party's failure to submit a timely filing automatically results in summary judgment for the opposing party. . . . To warrant summary judgment, the district court must make the further finding that given the undisputed facts, summary judgment is proper as a matter of law. As a result, though it certainly does not help the nonmovant, failure to file a timely 12(n) is not necessarily fatal.
As it turns out, the absence of Rutledge's responsive GR 12(n) statement does not affect him: Many facts that are either in dispute or that would properly call for inclusion in the GR 12(m) response either were before this Court on the preliminary injunction motion or are made clear from Rutledge's memorandum (which is supported by record citations) and from his deposition.
This section will set out the background of Rutledge's grievance with defendants in substantial detail.
Some additional facts are provided as necessary later in the text.
Rutledge, a 27-year-old who is serving a 70-year sentence for murder, has been confined at Joliet since June 1988 (Rutledge Dep. 5, 10, 19-20; D. 12(m) P 3).
He is a jailhouse lawyer who has been diligent in protecting prisoners' rights, acting on behalf of himself and others (see, e.g., Rutledge Dep. 10-16, 43), and he claims as a result to have incurred the wrath of Joliet officials (id. 103):
They never liked me. I always stood on what I believed. If they didn't give me something, I wrote grievances of everything. I'd make sure everything was proper.
Around June 1990, while Rutledge was in protective custody (id. 32-33),
an inmate on whose appeal Rutledge was working approached him and tried to involve him in an escape attempt that involved members of the North Side Gang (id. 40-44). Fearful that the planned escape would end in tragedy, Rutledge wrote to the Governor (id. 55, 70-71).
Not receiving a response, Rutledge then passed a note to his counselor that asked for a meeting with the Warden (id. 71). About 1-1/2 hours later Rutledge was called into a meeting with Fairman, Springborn and a Lieutenant Breeding (id. 72-73). During the next two hours Rutledge explained his knowledge of the escape plan and identified the inmates who were involved (id. 72-74). In addition he expressed specific concern over the danger that would be created were his identity as an informant exposed (id. 74, 76-77), for example by his being let out of segregation before inmates who were involved in the escape (id. 83),
and he was assured that his confidentiality would be maintained (id. 75, 77-78).
After Rutledge had brought the escape plan to official attention, Nelson was brought in to investigate it (id. 79-80; Nelson Aff. P 7). Nelson interviewed Rutledge as part of his investigation, and Rutledge again expressed concern over his safety (id. P 8). Nelson also told Rutledge that his confidentiality and security would be secured. Specifically Nelson said that Rutledge would be put in segregation and that he "would receive fabricated tickets to show that you were guilty of this crime and everything" (Rutledge Dep. 81).
Rutledge voiced his fear that if he were to be transferred out of segregation to another area of Joliet before the transfer of persons on whom he had snitched, his identity as the informant would become known and he would be placed in danger (id. 83). Rutledge also suggested among other things that he would be safer at a medium security prison (id. 85).
Just a few days after his meeting with Nelson, Rutledge--who was in West Segregation along with those who had planned the escape--received a ticket for "conspiring to commit an escape" (id. 90). Soon thereafter Rutledge was moved to North Segregation (id. 91). Being moved elsewhere in segregation did not bother Rutledge, however, because he could show his ticket to friends there and "play a role with it" (id.). While in North Segregation Rutledge requested another meeting with correctional personnel, and this time Fairman, Springborn, Nelson and another investigator met with him. Rutledge was concerned because he was receiving more tickets and he thought that his being questioned about them in front of his cell (through the use of a speaker) imperiled his confidentiality (id. 88, 92-93). At that meeting Rutledge was again told that it would be made to look as though he were found guilty though he was not (id. 94). And regarding confidentiality "they promised I would not be let out of segregation until they were transferred out of segregation themselves so the word wouldn't get out" (id.).
On August 2, 1990 (a week or two after that meeting) Rutledge was returned to protective custody (id. 97; D. 12(m) P 13). That day Rutledge was threatened by an inmate Pryor, who had been under investigation and had already been released from segregation (Rutledge Dep. 99-101). Pryor told Rutledge that he knew Rutledge had ratted (id. 99-100):
He said I know who told. It was you. And I didn't--and I'm going to let my North Side brothers know. Because he already got word that I was being let out.
And he got word over to segregation and they found out. And they--and then they sent word back ...