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TORRENCE v. MUSILEK

October 3, 1995

MICHAEL D. TORRENCE, Plaintiff,
v.
JOHN MUSILEK, et al., Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court is defendants John Musielak's *fn1" ("Musielak"), Jeanette Johnson's ("Johnson"), and Kenneth R. Briley's ("Briley") (collectively, "defendants") motion for summary judgment pursuant to FED. R. CIV. P. 56(b). As set forth fully below, the court grants defendants' motion for summary judgment.

 I. BACKGROUND2

 Plaintiff Michael Torrence ("Torrence") currently is a prisoner at Stateville Correctional Center, in Joliet, Illinois. In March 1992, at the time of the incident on which Torrence's complaint is based, Torrence was a segregation inmate at Joliet Correctional Center ("Joliet"), in Joliet, Illinois, where Musielak was a correctional officer, Johnson was a correctional sergeant, and Briley was a correctional lieutenant.

 Early in the morning on March 1, 1992, Torrence was outside in the north segregation yard. Musielak was in the guard tower overlooking the yard. Three other inmates -- Hughes, Davidson, and Torrence's cellmate -- were in the yard with Torrence. Hughes and Davidson began making derogatory remarks about and to Torrence, supposedly because of a rumor that Torrence was a snitch or stool pigeon.

 Torrence and Hughes began fighting. Musielak yelled from the guard tower at them to stop, but they continued. The fighting stopped when Hughes told Torrence that he had had enough, and Torrence walked away to retrieve his coat and cigarettes. As Torrence bent over to pick up his cigarettes from the ground, Davidson punched Torrence in the jaw, and Torrence and Davidson began to fight. Hughes jumped in to aid Davidson, and Hughes and Davidson beat Torrence to the ground and kicked him in the head, ribs, and buttocks. Hughes and Davidson stopped their assault when Torrence was lying on the ground with his head, nose, lip, and ear bleeding. After a few minutes, Torrence got up, went over to his cellmate, and said, "I don't believe this shit happened to me." Either Hughes or Davidson thought that Torrence had said something about them, and they assaulted Torrence a third time.

 After the third fight, Torrence went under the guard tower and asked Musielak to call Torrence's unit lieutenant to get Torrence off the yard. Only an officer with the rank of lieutenant or above could escort inmates assigned to segregation. ( Defs.' Mot. for Summ. J., at 3 P 14.) *fn3" Musielak said that he had called the lieutenant twice already and that there was nothing else he could do. Then, Johnson, who was taking care of a protective custody unit of inmates, walked out of a cell house unit into the yard. Torrence asked Johnson to get him off the yard, but she shook her head and walked back into the cell house unit. Johnson came back out about five minutes later, and Torrence asked her if she would stand there with her radio so that she could call someone if the inmates assaulted Torrence again. Johnson told Torrence that she had no authority over what was going on in the segregation yard. However, she remained in the yard for a minute, and then left.

 Some other prisoners walked by the yard, and Torrence yelled for them to get Lieutenant Miller to get Torrence off the yard. When Lieutenant Miller stepped out of the cell house unit, Torrence asked him to remove Torrence from the yard. Lieutenant Miller said that there was nothing he could do, because he was the lieutenant in a different cell house. At that moment, Briley and other officers arrived and escorted Torrence to the health care unit. Torrence estimated that at least 30 minutes passed between the first fight and the moment Briley and the other officers arrived.

 Before he was assaulted on March 1, 1992, Torrence had no idea that Hughes and Davidson were angry at him, or that anyone would be trying to attack him. Thus, Torrence had not complained to anyone about potentially being in danger or requested to be put in protective custody.

 II. DISCUSSION

 A. Standard of Review

 A motion for summary judgment must be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party opposing a motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). A genuine issue of material fact exists only where there is sufficient evidence favoring the non-moving party to support a jury verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986). All reasonable factual inferences must be viewed in favor of the non-moving party. Holland v. Jefferson Natl. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). If the evidence presented by the non-movant is merely colorable or is not sufficiently probative, summary judgment is appropriate. Wolf v. Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).

 B. Failure to establish "deliberate indifference "

 Defendants contend that Torrence has not and cannot establish that defendants were deliberately indifferent to Torrence's safety, and therefore that judgment should be ...


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