United States District Court, S.D. Illinois
August 12, 2005.
WADE THOMAS, Plaintiff,
B. SULLIVAN, et al., Defendants.
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 dispense them
pills at Tamms Correctional Center. So if it wasn't
given by the nurse, it was only one or two ways it
could got in the food. The Officer put it in there or
somebody in the kitchen put it there.
(Doc. 51, Exhibit 1, Deposition of Thomas, p. 10).
As in Hessel v. O'Hearn, where summary judgment was granted
under similar ambiguous circumstances, there is no more reason to
affix liability to one or more of the defendants than a host of
others, such as the kitchen staff. Hessel, 977 F.2d at 305.
Defendant Crespi is sued because plaintiff "had a problem with
him;" Null because he threatened to write plaintiff a ticket
after the fact; and Siegleman apparently because plaintiff
perceived that Siegleman and Crespi "attempted to bribe plaintiff
with extra food" to get the pill so that they could "conceal the
evidence." (Doc. 51, Exhibit 1, Deposition of Thomas, pp. 10-11
and Doc. 9, p. 5).
The defendants have not presented affidavits denying their
involvement in the pill incident;*fn1 however, Federal Rule
of Civil Procedure 56(b) does not require affidavits be submitted
in support of a motion for summary judgment. In any event, the
defendants have supported their position with plaintiff's
deposition testimony, and plaintiff has not countered that
evidence with specific facts that create a material issue of fact
for trial. More to the point, plaintiff has not given the Court
any reason to believe that he can establish that any of the
defendants placed the pill in his food. This Court does not think
that there is cause for refusing to grant summary judgment pursuant to Rule 56(f),*fn2 just
as in Hessel v. O'Hearn. Therefore, defendants should be
granted summary judgment on Counts 1 and 2.
2. The Cell Door Incident (Counts 4 and 5)
Count 4 actually alleges two connected incidents raising two
possible grounds for liability: (1) Crespi hitting plaintiff in
the head; and (2) Crespi and Henderson pushing on the cell door
while plaintiff's foot was in it. By his own admission, plaintiff
chose to place his foot in the cell doorway to prevent the door
from closing, and he willfully chose not to remove his foot.
(Doc. 51, Exhibit 1, Deposition of Thomas, pp. 15-18).
Therefore, defendants are correct, in that plaintiff cannot
assert a claim relative to his foot initially getting squished by
the cell door. Count 5 relates to Crespi, Henderson and Sweatland
for failing to get plaintiff requested medical attention after
his head and foot were injured.
Defendants' assertion that no reasonable jury could believe
that Crespi hit plaintiff in the head is just that, an assertion.
Such credibility determinations are for the trier of fact and
preclude summary judgment.
Defendants argue that any injury did not amount to a serious
medical need and, in any event, plaintiff did receive medical
treatment the evening of the incident. According to plaintiff's
deposition testimony, he kept his foot in the cell door until the
Tactical Team arrived, then, as he explains it: "I moved my foot.
And they cuffed me up and took me to the nurse's station and gave
me medical treatment." (Doc. 51, Exhibit 1, Deposition of
Thomas, p. 18). Despite how the claim was depicted in the Second
Amended Complaint, as plaintiff now explains, his medical treatment claim is based on his initial
request for medical care just after Crespi allegedly struck him
in the head. (See Doc. 51, Exhibit 1, Deposition of Thomas,
Prison officials' conduct demonstrating deliberate
indifference to serious medical needs of prisoners
constitutes the "`unnecessary and wanton infliction
of pain'" and violates the Eighth Amendment's
prohibition of cruel and unusual punishment. To state
an Eighth Amendment claim, a prisoner must show that
(1) he had a serious medical need, and (2) the
defendants were deliberately indifferent to it. An
objectively serious medical need is "`one that has
been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor's
attention.'" Deliberate indifference entails more
than "mere negligence," and requires the prisoner to
show that the prison official was subjectively aware
of the prisoner's serious medical needs and
disregarded an excessive risk that a lack of
treatment posed to the prisoner's health or safety
from lack of treatment.
Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001)
(internal citation omitted).
Liability will not attach where the injury appeared slight, but
later turned out to be serious; however, where an injury appeared
serious and later turned out to be slight, liability will attach
anything else would be gambling with another's health or life.
Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991). The
ultimate determination regarding the seriousness of an injury is
best left to a healthcare professional, or the seriousness of the
injury must be so obvious that even a lay person would easily
recognize the necessity for a healthcare professional's
attention. Id.; see also Langston v. Peters, 100 F.3d 1235,
1240 (7th Cir. 1996). Relative to this case, delay in
providing medical care may be sufficient for liability. Kelley
v. McGinnis, 899 F.2d 612 (7th Cir. 1990). However, to prove
such a claim the plaintiff must produce medical evidence "`to
establish the detrimental effect of delay in medical treatment.'"
Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)
(quoting Byerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.
1995)). According to plaintiff's deposition testimony, Crespi hit him
in the forehead with his closed fist, leaving a "knot" on
plaintiff's head. (Doc. 51, Exhibit 1, Deposition of Thomas, p.
15). Plaintiff's unsigned affidavit adds that Crespi's hit also
caused a headache and swelling. (Doc. 55-5, p. 2). The
complaint describes the cell door incident beginning at around
9:00 p.m. (Doc. 9, p. 5; see also Doc. 55-5, p. 6 (placing the
time at 9:10 p.m.)). Medical notes from 9:45 p.m. that night
describe plaintiff as presenting with a "quarter sized abrasion
to middle of forehead;" and the absence of swelling is noted.
(Doc. 55-5, p. 3). Plaintiff was told by a nurse to clean the
abrasion with soap and water. (Doc. 55-5, p. 3). Plaintiff's
knot on his head simply does not amount to a serious medical need
by any standard. In any event, a delay of forty-five minutes or
less including the time plaintiff voluntarily kept his foot in
the cell door amounts to a deminimis delay in treatment.
Therefore, the defendants are entitled to summary judgment with
respect to Count 5.
Fore the aforestated reasons, it is the recommendation of this
Court that defendants Null, Crespi, Henderson, Sweatland and
Siegleman's motion for summary judgment (Doc. 51) be granted in
part and denied in part. More specifically, Counts 1-3 and 5
should be dismissed with prejudice, leaving Count 4 to proceed to
trial. Defendants Null and Siegleman, who are not named in Count
4, would be dismissed from this action, and defendants Crespi,
Sweatland and Henderson would remain as defendants.