The opinion of the court was delivered by: CLIFFORD PROUD, Magistrate Judge
REPORT AND RECOMMENDATION
This report and recommendation is respectfully submitted to
U.S. District Judge William D. Stiehl pursuant to
28 U.S.C. § 636(b)(1)(B) and (C).
All five of the remaining named defendants, Jacob Null, Bobby
Crespi, Larry Henderson Robert Siegleman and Michael Sweatland,
are before the Court, pursuant to Federal Rule of Civil Procedure
56, seeking summary judgment on all counts of the Second Amended
Complaint. (Doc. 51). Those claims are summarized as follows:
COUNT 1: Against defendants Crespi and Null for
retaliating against plaintiff for filing grievances
by Crespi giving him a food tray with some pills
embedded in the food, and Crespi and Null then
refusing to get him medical help, all in violation of
the First Amendment.
COUNT 2: Against defendants Null and Crespi for
serving, or allowing plaintiff to be served, a food
tray with pills secreted in it, in violation of the
COUNT 3: Against defendants Null, Crespi and
Siegleman for failing to get plaintiff requested
medical attention after plaintiff suffered head,
stomach and chest pain, and skin irritation after
plaintiff consumed some food from the tainted food
tray, in violation of the Eighth Amendment.
COUNT 4: Against defendants Crespi, Henderson and
Sweatland for using or allowing excessive force to be used against plaintiff
during an incident culminating with plaintiff's foot
being closed in his cell door, in violation of the
COUNT 5: Against defendants Crespi, Henderson and
Sweatland for failing to get plaintiff requested
medical attention after his head and foot were
injured, in violation of the Eighth Amendment.
(See Docs. 9 and 31).
Counts 1-3 stem from an alleged incident where there was an
"attempted to poison plaintiff's food when he gave [plaintiff] a
food tray embedded with some pills that made plaintiff ill."
(Doc. 9, p. 5, ¶ 24). Citing plaintiff's deposition testimony
that he never actually consumed the pill or contaminated food,
and that he does not know who placed the pill in his food,
1. Plaintiff's allegations of retaliation, cruel and
unusual punishment, and of deliberate indifference
cannot be a basis for liability without some
2. Plaintiff is barred from collecting damages
without first proving a physical injury; and
3. There is insufficient evidence of personal
involvement by any of the defendants for liability to
(Doc. 51, pp. 6-7).
Counts 4 and 5 stem from a series of events plaintiff contends
involved the exertion of excessive force against him. Allegedly,
plaintiff's cell door was opened so defendant Crespi could punch
plaintiff in the forehead; while the door operated by defendant
Sweatland was closing, plaintiff stuck his foot in it; and
defendants Crespi and Henderson pushed on the door in an effort
to free plaintiff's foot. (Doc. 9, pp. 5-6, ¶¶ 28-35). Citing
plaintiff's deposition testimony, defendants argue that:
1. No reasonable jury could find that Crespi hit
plaintiff in the head as alleged;
2. Plaintiff voluntarily placed his foot in the
doorway, therefore any injury could not have been
caused by the defendants; and
3. Any injury did not amount to a serious medical
need, but in any event plaintiff did receive medical
treatment the evening of the incident.
(Doc. 51, pp. 7-10).
Plaintiff generally counters that questions of material fact
preclude summary judgment. (Doc. 55). He also notes that he has
prayed for punitive damages.
Legal Standard for Summary Judgment
Summary judgment is appropriate under Federal Rule of Civil
Procedure 56 where "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 judgment
as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The purpose of Rule 56 is
to enable a party who believes there is no genuine dispute as to
a specific fact essential to the other side's case to demand at
least one sworn averment of that fact before the lengthy process
of litigation continues." Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-889 (1990) (internal citations
omitted). Of course, the evidence is construed in the light most
favorable to the non-moving party and all justifiable inferences
are drawn in favor of that party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
1. The Pill Incident (Counts 1-3) Counts 1-3 all revolve around the assertion that plaintiff
consumed, in whatever small degree, either the green pill (which
apparently turned out to be Tylenol sinus medication) or food
contaminated by the pill. In his deposition, plaintiff testified
that he did not eat the pill or the food contaminated by the
pill; rather, he discovered the pill before he began to eat.
(Doc. 51, Exhibit 1, Deposition of Thomas, p. 6). Therefore,
plaintiff's allegations that the pill made him feel ill are false
and, obviously, cannot form the basis for liability or damages.
Consequently, the defendants are entitled to summary judgment on
Count 3, as there is no factual basis for any claim of denial of
medical care for the effects of the pill.
With respect to Counts 1 and 2, defendants assert that an
injury is a required element of suit under 42 U.S.C. § 1983 and,
pursuant to 42 U.S.C. § 1997e(e), a prerequisite for bringing an
action for mental or emotional injury. (Doc. 51, pp. 4 and 6).
Defendants are mistaken. An injury is not a required element of a
Section 1983 action. See Rowe v. Shake, 196 F.3d 778, 781
(7th Cir. 1999) (citing Robinson v. Page, 170 F.3d 747,
748 (7th Cir. 1999)). Section 1997e(e) dictates that "[n]o
Federal civil action may be brought by a prisoner confined in a
jail, prison or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury." 42 U.S.C. § 1997e(e) (emphasis
added). Section 1997e(e) merely limits the types of damages that
may be recovered. Plaintiff prays for unspecified "damages," as
well as "compensatory" and "punitive" damages. (Doc. 9, p. 7).
Although plaintiff cannot recover damages for mental or emotional
injury because he suffered no physical injury, he can recover
"nominal" and "punitive" damages if a constitutional violation
were found. Calhoun v. DeTella, 319 F.3d 936, 941 (7th
Cir. 2003). So-called "General" or "presumed" damages meaning
damages awarded without proof of injury are considered "compensatory damages" and may be recoverable when a substantive
constitutional right is infringed. Hessel v. O'Hearn,
977 F.2d 299, 301-302 (7th Cir. 1992).
However, damages are a theoretical, and now moot point.
Although the Court previously left open the possibility that
plaintiff could prove Counts 1 and 2 by circumstantial evidence,
plaintiff's deposition testimony has foreclosed that possibility.
Personal involvement is a prerequisite for individual liability
in a civil rights action such as this; a defendant must have
caused or participated in an alleged constitutional deprivation
to incur liability. Wolf-Lillie v. Sonquist, 699 F.2d 864, 869
(7th Cir. 1983); 42 U.S.C. § 1983. "An official satisfies
the personal responsibility requirement of [Section] 1983 if [he
or] she acts or fails to act with a deliberate or reckless
disregard of plaintiff's constitutional rights." Crowder v.
Lash, 687 F.2d 996, 1005 (7th Cir. 1982). However, the
assumption that one or more of a group committed a wrong (where
no conspiracy is alleged) cannot fend of summary judgment.
Hessel v. O'Hearn, 977 F.2d 299, 305 (7th Cir. 1992).
"Proximity to a wrongdoer does not authorize punishment." Id.
Plaintiff's deposition testimony cleared up the ambiguities in
the Second Amended Complaint regarding the defendants'
involvement. Crespi delivered the food tray containing the pill
to plaintiff; Crespi and Siegleman were summoned by plaintiff to
look at the pill that had been discovered; Crespi and Siegleman
brought plaintiff a new food tray, but when plaintiff refused to
trade the pill for a new tray, the tray was not give to
plaintiff; Null subsequently asked for the pill, and when
plaintiff refused to turn it over, Null threatened to write
plaintiff a disciplinary ticket for possession of contraband.
(Doc. 51, Exhibit 1, Deposition of Thomas, pp. 6-8). According
to plaintiff: Yeah. I don't know how [the pill] got there. Only
thing I know is that in the grievance the healthcare
administrator said that they don't ...