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January 7, 2005.

EDDIE HARRIS #2002-0011027 Plaintiff,

The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge


Plaintiff Eddie Harris ("Harris") brought this pro se action against Defendants Sheriff of Cook County Michael Sheahan ("Sheahan"), former Cook County Department of Corrections ("CCDOC") Superintendent Henry Troka ("Troka") and CCDOC Superintendent Michael Holmes ("Holmes") (collectively, "Defendants") under 42 U.S.C. § 1983, alleging that he was subjected to cruel and unusual punishment because of certain conditions of his confinement. Specifically, Harris claims that Defendants violated 42 U.S.C. § 1983 by suspending recreation from August 2002 until August 2003 for detainees in the protective custody wing, and by maintaining poor ventilation. (Am. Compl. ¶¶ 1-10, 11-13.) [Dkt. 6.]*fn1 Defendants have moved for summary judgment on both counts in the amended complaint. [Dkt 30.] The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt 21, 22, 24.] For the reasons set forth below, Defendants' motion for summary judgment is granted. JURISDICTION

Federal jurisdiction exists under 28 U.S.C. § 1331 (federal question jurisdiction). Federal question jurisdiction is proper in this case because both counts of the amended complaint invoke 42 U.S.C. § 1983.


  A. Procedural Background

  Defendants submitted a motion for summary judgment on both counts of Harris' amended complaint on April 26, 2004. That same day, Defendants also served a notice to Harris under Local Rule 56.2, explaining the procedure required for responding to a motion for summary judgment and warning of the consequences for failing to comply with the rule. (L.R. 56.2 Notice.) [Dkt 29.]*fn2 At a status hearing at which Harris was present by telephone, a briefing schedule had been set on Defendants' motion, requiring Harris to respond by May 26, 2004. (Order, Mar. 31, 2004.) [Dkt 28.] However, Harris failed to file any response by that date. Accordingly, on June 7, 2004, this court issued an order directing Harris to file a response to Defendants' motion by June 25, 2004, and warning Harris that any failure to file a response would result in dismissal of his case for want of prosecution. (Order, June 7, 2004.) [Dkt 33.]

  On June 30, 2004, Harris filed a document that the court construes as intended to be his response to Defendants' motion (hereinafter referred to as Plaintiff's Response). The Response is entitled "Exhibits" on the docket, although it is actually an untitled document that contains a subheading called "Exercise," not "Exhibits." (Pl.'s Resp.) [Dkt 34.] In any event, that Response fails to comply with Local Rule 56.1(b)(3). (Id.) Specifically, Harris does not respond to the numbered material facts in Defendants' Statement of Material Facts Pursuant to Local Rule 56.1(a), nor refer to parts in the record which may have supported his disagreements. Nor does Harris submit his own additional facts and supporting materials in his Response. Because he is pro se, the court will construe Harris' Response liberally. However, even doing so, the court notes that the statements in Harris' Response are generally non-responsive, argumentative rather than factual, and, furthermore, without evidentiary support. Statements without evidentiary support are not to be considered. See L.R. 56.1(b)(3)(B) (stating that "[a]ll material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party"); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).*fn3 For those reasons, Defendants' Statement of Material Facts Pursuant to Local Rule 56.1(a) and Supporting Exhibits is deemed admitted in its entirety, pursuant to Local Rule 56.1(b)(3)(B).

  Deeming the statements in Defendants' Statement of Material Facts to be admitted does not, however, mean that summary judgment will automatically be granted in favor of Defendants. Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992). To warrant summary judgment, the evidence submitted must be admissible at trial under the Federal Rules of Evidence, Bombard v. Fort Wayne Newsp., Inc., 92 F.3d 560, 562 (7th Cir. 1996), and the court must make the finding that given the undisputed facts, summary judgment is proper as a matter of law. Wienco, Inc., 965 F.2d at 568.

  B. Factual Background*fn4

  1. The Parties

  Harris is a pretrial detainee who is being held at the CCDOC pending trial on first degree murder charges. (Defs.' LR Stmt. Parties ¶ 1; Defs.' LR Stmt. ¶ 2; Defs.' LR Ex. 1, Harris Dep. at 15.) Harris was booked on February 8, 2002 and assigned to the protective custody wing of Division XI of the CCDOC, where he has remained ever since, due to "all the media attention that his case has received." (Defs.' LR Stmt. Parties ¶ 1; Defs.' LR Stmt. ¶¶ 1, 3; Harris Dep. at 15, 18-19.)*fn5

  Defendant Sheahan is, and has been at all relevant times, the Sheriff of Cook County. (Defs.' LR Stmt. Parties ¶ 2.) Defendant Troka was the Superintendent of Division XI until his retirement on November 15, 2002. (Id. ¶ 3.) Defendant Holmes assumed Troka's position after Troka's retirement, and is the current Superintendent of Division XI. (Id. ¶ 4; Defs.' LR Ex. 4, Affidavit of Michael Holmes ¶¶ 1, 2.)

  2. The Recreation Regime Prior to August 27, 2002

  During the entire time that Harris has been confined at the CCDOC, detainees in the protective custody wing have followed a "23 and 1" recreation regime, which means that they are locked in their cells for 23 hours a day and may leave their cells for one hour a day. (Defs.' LR Stmt. ¶ 18; Harris Dep. at 38; Holmes Aff. ¶ 8.) Under the recreation regime that was in place prior to August 27, 2002, all 48 members of the protective custody wing were given their one hour of free time together. (Harris Dep. at 34-35, 49.) The detainees had access to an indoor recreation room and an outdoor recreation area. (Id. at 34-35.) The indoor recreation room has a basketball hoop, pool table and weights. (Id. at 34.) The outdoor recreation area has a basketball hoop. (Id.) The detainees could not split up; all 48 ...

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