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GIVENS v. VELASCO

January 27, 2004.

LUCY GIVENS, as next friend of and Independent Administrator of the Estate of DONALD BASS, Plaintiff
v.
ERNESTO VELASCO, Director of the Cook County Department of Corrections, the County of Cook, a body politic, Superintendent Johnson of the Cook County Department of Corrections, Superintendent Edwards of the Cook County Department of Corrections, Deputy John Doe and Deputy Richard Roe Correctional Officers for the County of Cook, Mark Howard, Carlos Rocha, A.J. Bibbs, Pedro Barrios, and Theodore Holmes, Individually or in their official capacity, Defendants



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Ernesto Velasco's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff Lucy Givens, the mother of the deceased, Donald Bass, ("Plaintiff"), sued Defendant Ernesto Velasco and other officials of the Department of Corrections staff under 42 U.S.C. § 1983 ("Section 1983") for allegedly violating Plaintiff's Page 2 constitutional and civil rights. Before the court are Defendant's Request to Strike Plaintiff's Response to Statement of Uncontested Facts and Defendant's Motion for Summary Judgment. For the reasons set forth below, the Court grants Defendant's motion to strike and grants Defendant's motion for summary judgment.

UNDISPUTED FACTS*fn1

  On July 27, 1998, Plaintiff was arrested by the Northfield Park Police Officers, remanded by the Criminal Court into custody of the Cook County Sheriff and incarcerated at the Cook County Jail ("Jail"). On September 11, 1998, Plaintiff was assigned to and incarcerated in Division 9 of the Jail. (Defendant's Rule 56.1 Statement of Facts, pp. 1-2.)

  On that date, and prior to and subsequent to that date, Cook County Correctional Officers were in control and ran the divisions and tiers of the Jail. At no time did any inmates or gang members ever control or in any way participate in any activities concerned Page 3 with running the Jail. (Rocha Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, pp. 47-48.)

  At no time on, prior to, or subsequent to September 17, 1998, were inmates allowed to make or possess any type of weapon or instrument that could be used as a weapon, nor were inmates provided with, or allowed to possess, materials that could be used as a weapon or used to make any instrument that could be used to cause harm. During this same time period, Defendant Velasco and correctional officers had a zero tolerance policy for any weapons or materials that could be used as a weapon, and if any inmate possessed such a weapon or materials, it was immediately confiscated and the inmate would be disciplined. (Bibbs Dep., Ex. A to Defendant's Rule 56.1 Statement of Facts, pp. 26-28.)

  Correctional officers actively conducted shakedowns and inspections of cells to ensure that there were no weapons, prohibited materials or contraband in the Jail or available to inmates. (Bibbs Dep., Ex. A to Defendant's Rule 56.1 Statement of Facts, pp. 26-28; Rocha Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, pp. 37, 44.) It was also the Jail's custom or policy that, if a fight occurred, correctional officers immediately intervened, broke up the fight, and disciplined those inmates who Page 4 were involved in the fight. (Bibbs Dep., Ex. A to Defendant's Rule 56.1 Statement of Facts, pp. 38-39.)

  Ms. Lucy Givens, the mother of the Plaintiff, had two to three daily telephone conversations with her son from July 1998 through September 1998. During these conversations, Plaintiff never indicated to Ms. Givens that inmates or gangs had weapons, access to weapons, or intended to harm or use a weapon upon him. Yet, Ms. Givens was concerned and telephoned Superintendent Edwards and expressed her concern regarding the Plaintiff's welfare. Superintendent Edwards met with Plaintiff and requested that he identify individuals, if any, that may have been "bothering" him so that he could take action and address any issues or concerns pertaining to Plaintiff's well-being. However, Plaintiff refused to identify any individuals that may have been bothering him, or to cooperate at all with Superintendent Edward's investigation into the matter. Plaintiff informed Ms. Givens that he was not worried about the actions or the conduct of the fellow inmates and informed her, "I am not worried about that," and "Ma, don't worry about it." At no time did anyone ever attempt to inform Defendant Ernesto Velasco about any issues or concerns related to Plaintiff, his health or well being, or conditions at the Jail. (Givens, Dep., Page 5 Ex. C to Defendant's Rule 56.1 Statement of Facts, pp. 14, 47, 50-53, 60-61.)

  On September 17, 1998, at about 4:30 pm, Plaintiff confronted a correctional officer, refused to follow the officer's directions to line up for his dinner, used profanity and argued with the officer. At approximately 6:00 pm or 6:30 pm, Plaintiff was angry that someone had hung clothes out to dry near his cell. Plaintiff confronted about 15 fellow inmates and said, "I told you mother fuckers about this, about putting stuff in front of my cell," and he kept saying "Now I'm gonna kill one of you's." (Rocha, Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, pp. 17-19, 22-24.)

  Plaintiff then took the clean wet blankets and sheets off the second floor railing and threw them to the ground. (Bibbs, Dep., Ex. A to Defendant's Rule 56.1 Statement of Facts, p. 34.) Plaintiff initiated a fight by grabbing one inmate by the shirt and it quickly escalated into a fight involving additional inmates. (Rocha, Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, pp. 12, 16, 17.)

  The incident happened suddenly, and provided no warning or notice to Defendant Velasco, or any of the jail personnel or correctional officers prior to its occurrence.(Rocha, Dep., Ex. Page 6 B to Defendant's Rule 56.1 Statement of Facts, p. 44.) Correctional officers immediately responded to the fight, which only lasted about two minutes. (Rocha, Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, pp. 42-44; Bibbs, Dep., Ex. A to Defendant's Rule 56.1 Statement of Facts, p. 35.) Correctional officers opened the interlock door that secures the tier and removed Plaintiff from the tier. (Rocha, Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, p. 29.) Correctional officers called for emergency medical care, and an ambulance soon arrived and rendered medical care to Plaintiff. (Rocha, Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, p. 50.) Defendant Velasco was not present at this incident, and did not participate in the events that gave rise to the instant case. (Rocha, Dep., Ex. B to Defendant's Rule 56.1 Statement of Facts, pp. 32, 50; Bibbs, Dep., Ex. A to Defendant's Rule 56.1 Statement of Facts, pp. 29-30.)

  Plaintiff died on September 17, 1998, and subsequently Lucy Givens filed the underlying instant complaint. She has no actual knowledge about the underlying incident or any of the events that she alleges occurred in her complaint that give rise to the case at hand. Ms. Givens does not have knowledge and is unaware of the existence of any policies or procedures that may have caused or Page 7 contributed to any violation of Plaintiff's rights, contributed to Plaintiff's death, or in any way caused harm to Plaintiff. Ms. Givens has never had or attempted to have any contact with Defendant Velasco and stated that she has "Never heard of him." (Givens, Dep., Ex. C to Defendant's Rule 56.1 Statement of Facts, p. 60.)

  PROCEDURAL HISTORY

  Plaintiff filed suit against the County of Cook, Cook County Department of Corrections Director Ernesto Velasco, Cook County Department of Corrections Superintendents Johnson and Edwards, and inmates Mark Howard, Carlos Rocha, A. J. Bibbs, Pedro Berrios and Theodore Holmes on September 22, 1999, alleging that Defendants violated the rights of Plaintiff under the Civil Rights Acts, Section 1983 and the Constitution under the Fourth, Fifth, Eight and Fourteenth Amendments. Subsequently, Cook County was voluntarily dismissed from this action and service was not ...


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