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April 13, 2001


The opinion of the court was delivered by: Hart, District Judge.


As of April 12, 1996, plaintiff Mark Benner was incarcerated at Stateville Correctional Center in Joliet, Illinois and housed in Unit I, a disciplinary segregation unit. All the defendants were assigned to Unit I on that date. Defendant Eugene McAdory was the unit superintendent, defendants James Yarbrough and Freddie Ray were correctional officers, and defendant Clarence Wright was a sergeant. Inmate Robert Felton was housed in the cell next to plaintiffs cell. On that date, Felton scalded plaintiff with hot water when plaintiff, without an escort, approached Felton's cell to retrieve his legal papers. Plaintiff alleges that defendants acted with deliberate indifference in failing to prevent this assault.*fn1 Presently pending is defendants' motion for summary judgment.*fn2

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying 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, 91 L.Ed.2d 265 (1986); id. at 325, 106 S.Ct. 2548 ("the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

Resolving all genuine factual disputes in plaintiffs favor and drawing all reasonable inferences in plaintiffs favor, the facts assumed to be true for purposes of summary judgment are as follows. Plaintiff had been incarcerated at Stateville since May 1994. He was originally housed in protective custody. In June 1995, he was assigned to disciplinary segregation in Unit I. On April 12, 1996, plaintiff was confined in a single cell on the third floor of Unit I's G Wing ("3-G"). Unit I is the disciplinary segregation unit, housing inmates who have been found guilty of serious rule infractions such as assault, escape, weapons violations, possession of drugs, and possession of gang literature. There is no protective custody within Unit I, but the stated procedures for Unit I are more restrictive than those for protective custody. Also, a person who was targeted by others could, if possible within Unit I, be moved away from the persons that threatened him. Also, on occasion, Unit I inmates facing security risks were transferred to the Health Care Unit, X-House, or the Special Evaluation Unit.

As of April 1996, electric immersion heaters ("stingers") were prohibited in Unit I. However, the ban had been put in place approximately two months earlier and not all stingers had yet been seized. Contraband was seized during shakedowns that were performed approximately every 30 days. However, Felton's cell had not been searched recently. Also, it was possible for inmates to smuggle stingers into Unit I.

As of April 1996, Unit I inmates were to be escorted in chains whenever they were moved to or from their cells. While being escorted, an inmate's hands were cuffed behind his back. Occasionally, the mandatory escort policy would not be followed. Also, on occasion inmates would move without their escorts. Plaintiff did not have a history of moving without his escort.

Around noontime on April 12, 1996, defendant Yarbrough came to plaintiffs cell, handcuffed plaintiff, and removed plaintiff to take him to sick call on the first floor of Unit I. Yarbrough, however, left plaintiff unescorted in the 3-G dayroom. Benner continued down to the lower level health unit unescorted. After being seen with complaints of back and knee pain, no one was there to escort plaintiff back to his cell. There is evidence that Yarbrough was on his lunch break from 12:30 p.m. to 1:30 p.m. Neither side points to evidence regarding when plaintiff left the health unit after his initial appointment. There is evidence that plaintiff was already being treated for the scalding when Yarbrough returned from lunch, which would indicate plaintiff was scalded sometime before 1:30 p.m.

Unescorted, plaintiff walked back to the 3-G dayroom. Defendant Ray was in the control booth where he could see the dayroom and other areas. Plaintiff told Ray that two gangs had hits out for plaintiff and plaintiff requested that Ray escort him to his cell. Ray looked at plaintiff while plaintiff was talking, but did not respond to plaintiff. After waiting a few minutes, plaintiff went down to the second floor central hallway to look for Yarbrough or another officer to escort him and lock him into his cell. Plaintiff glanced onto other wings, but found no officers other than those in the control booth. Plaintiff returned to the 3-G dayroom, where Ray stared at him from the control booth. The control booth officer has a clear view of the wing hallways as well.

Plaintiff waited there for a few minutes and then headed back down the stairs to look for an officer to escort him. Plaintiff encountered defendant Wright and told him about the two gang hits and requested that Wright lock him in his cell. Wright told plaintiff to go to 3-G and he would send a gallery officer there. Plaintiff went to the wing, but no officer arrived to meet him.

Felton was assigned to the cell next to plaintiffs, a fact known by all the defendants. Plaintiff had conversations with Felton and Felton had previously borrowed legal papers from plaintiff. While plaintiff waited near his own cell, Felton called him and told plaintiff to retrieve his papers. Plaintiff said he would send a guard for the papers, but Felton threatened to throw away the papers if plaintiff did not take them at that time. Felton placed the papers in the chuckhole in his door, which did not have a covering or flap. When plaintiff reached for the papers, Felton pulled a stinger out of a cup and threw a cupful of boiling water at plaintiffs face, scalding plaintiffs face, arm, and back.

After being scalded, plaintiff rushed off the wing in view of Ray who was still in the control booth. Plaintiff ran to McAdory's office and thereafter went to the Health Care Unit where he was treated. Plaintiff was then transferred to the hospital for further treatment.

After his initial hospital treatment, plaintiff was placed in X-House. After a second round of hospital treatments, plaintiff was placed in protective custody in H-House, ...

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