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August 12, 2005.

WADE THOMAS, Plaintiff,
B. SULLIVAN, et al., Defendants.

The opinion of the court was delivered by: CLIFFORD PROUD, Magistrate Judge


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 Eighth Amendment.
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 Eighth Amendment.
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).

  Arguments Presented

  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, defendants argue:
1. Plaintiff's allegations of retaliation, cruel and unusual punishment, and of deliberate indifference cannot be a basis for liability without some resulting injury;
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 attach.
(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 ...

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