United States District Court, S.D. Illinois
August 24, 2005.
ABIODUN SOWEMIMO, Plaintiff,
ROGER COWAN, EUGENE McADORY, GARY A. KNOP, NANCY S. TUCKER, DONALD SNYDER, JOE HARPER, MICHAEL L. NESBITT, MR. ALISON, D. HASEMYER, CAPTAIN STANLEY, and C/O WHITTENBURG,[fn1] Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
*fn1 The record contains a discrepancy as to the correct name of
Defendant Whittenburg. A review of the pleadings indicates that
this Defendant has been referred to also as "Wittenborn." In
fact, the Final Pre-Trial Order entered by Magistrate Judge
Frazier refers to this Defendant by both names (Doc. 77). The
pleadings filed by Defendant use "Whittenburg." The Court assumes
that this is the correct name and uses it throughout this Order.
MEMORANDUM AND ORDER
I. Introduction and Procedural Background
On April 24, 2001, Abiodun Sowemimo, an inmate within the
Illinois Department of Corrections ("IDOC"), filed suit against
the Defendants alleging violations of his civil rights pursuant
to 42 U.S.C. § 1983 (Doc. 1). Defendants are employed in
various positions with the IDOC. Sowemimo alleges that his First
and Eighth Amendment rights were violated on various occasions at
the Menard Correctional Center ("Menard") during the years 2000 and 2001. He
maintains that Defendants deliberately exposed him to inmate
violence or responded to the threat of inmate violence with
deliberate indifference by denying him placement in protective
custody. He also claims that Defendants have retaliated against
him for a prior litigation.
On September 23, 2002, the Court conducted a preliminary review
of Plaintiff's complaint (Doc. 12). The Court divided Plaintiff's
claims into two counts: Eighth Amendment claims and First
Amendment retaliation claims.
On March 8, 2004, the Court adopted a Report and Recommendation
submitted by Judge Frazier and granted Snyder and Knop's motions
for summary judgment (Doc. 48). Thereafter, the Clerk of the
Court issued a default entry as to Michael Nesbitt (Doc. 53).
On April 14, 2004, Judge Frazier denied Nesbitt's motion to
vacate entry of default (Doc. 58). Subsequently on May 25, 2004,
the Court denied Nesbitt's objection to Judge Frazier's April 14,
2004 Order (Doc. 61).
Thereafter, this case was referred to Magistrate Judge Philip
M. Frazier for an evidentiary hearing. Judge Frazier conducted
the hearing on May 2, 2005. At the hearing, Plaintiff was
represented by court appointed counsel, Michael McDonald. During
the hearing, the parties presented evidence through exhibits and
witnesses. On June 23, 2005, Judge Frazier entered a Report and
Recommendation ("the Report") recommending that the Court enter
verdicts and judgments in favor of each Defendant and against
Plaintiff on his Eighth and First Amendment claims (Doc. 82).
Judge Frazier found that Plaintiff failed to prove that any
Defendant was deliberately indifferent to or displayed callous disregard for
his safety and that Plaintiff failed to prove that his prior
civil rights lawsuit was the actual motivating factor for
defendant's decision to deny him protective custody.
Plaintiff filed timely objections to the Report (Doc. 83).
Plaintiff raises the following objections: (1) the Report
erroneously found in favor of Defendants on the basis that they
had no knowledge of any special threat to Plaintiff; and (2) the
Report erroneously failed to enter judgment against Defendant
Michael Nesbitt. Defendants filed a response to Plaintiff's
objections (Doc. 84). After conducting de novo review, the Court
ADOPTS Magistrate Judge Frazier's Report in its entirety.
II. Standard of Review
A federal district court is authorized to refer a matter to a
magistrate judge to conduct an evidentiary hearing. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Following the hearing,
the magistrate judge cannot enter a final judgment, but must
submit to the district court proposed findings of fact and
recommendations for disposition to which either party may file
written objections within 10 days. See Id. The district court
is required to conduct a de novo review of those portions of the
magistrate judge's report and recommendations to which specific
written objection have been filed. Local Rule 73.1(b).
However, this de novo review is not the same as a de novo
hearing. The district court is not required to conduct another
hearing to review the magistrate judge's findings and credibility
determinations. United States v. Raddatz, 447 U.S. 667, 675 (1980); Goffman v. Gross, 59 F.3d 668, 671
(7th Cir. 1995). Rather, the district court has discretion to
"accept, reject or modify, in whole or part, the findings or
recommendations made by the magistrate." 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b); Local Rule 73.1(b). If the district court
finds a problem, it may take additional evidence, call witnesses,
or remand to the magistrate judge for further development.
Raddatz, 447 U.S. at 675. If upon reviewing the record, the
district court is satisfied with the magistrate judge's findings
and recommendations, it may in its discretion treat those
findings as its own. Id.
In 1997, Plaintiff was incarcerated in Menard. On September 23,
1997, Plaintiff was attacked by, Raymond Washington, an inmate
also housed at Menard Following that attack, Plaintiff was
transferred to Joliet Correctional Center. In the meantime,
Plaintiff filed a civil rights suit alleging that Mendard
officials had been deliberately indifferent to his safety. See
Sowemino v. Hennrich, 98-387-GBC. On March 30, 2000, a jury
returned a verdict for the Defendants and against Plaintiff.
Id. This is the lawsuit that Plaintiff believes he was
retaliated against. None of the named Defendants in the case at
bar were named Defendants in his prior lawsuit.
Sometime after the trial, Plaintiff was returned to Menard. On
May 11, 2000, Plaintiff requested placement into protective
custody. Plaintiff believed that Raymond Washington had friends at Menard and that he had been
labeled as a snitch by the inmates at Menard.
While Plaintiff's request for protective custody was pending,
Plaintiff was placed in Menard's North Cell House. Plaintiff
testified that two unidentified men dressed in black came into
his cell at night and tried to choke him. Plaintiff could not
identify his attackers. Shortly after this attack, Plaintiff's
request for protective custody was denied.
In July 2000, Plaintiff was in general population. While
walking to lunch one day, an unknown inmate pushed Plaintiff down
a flight of stairs. The fall down the stairs caused Plaintiff to
lose consciousness. He testified that he simply felt a hand on
his back and then he awoke in the prison hospital. He suffered no
permanent injury from the fall. No witnesses to Plaintiff's fall
have been identified.
Plaintiff also testified that on February 6, 2001, while he was
in the gym, he was attacked by two inmates who beat on him and
cut his back with some sharp object. No witnesses to this attack
have been identified. Plaintiff received treatment for his wounds
in the heath care unit.
Plaintiff's inmate history reveals six inmates on his enemies
list during the relevant time: (1) Samuel Baker, who was at
Joliet; (2) Alvin Toney, who was at Joliet; (3) Inmate Hicks, who
was at Stateville; (4) Raymond Washington, who was at Stateville
then Western; (5) Kenyatte Merrill, who was at Pontiac,
Stateville, and Western; and (6) Fred Edwards, who was at Menard
in the West Cell House away from Plaintiff. Plaintiff did not
declare any other enemies. He believes that since he has been identified as a snitch he is generally at great risk in
Defendant Cowan was Warden at Menard during 2000. Cowan does
not remember Plaintiff. Plaintiff testified that he talked with
Cowan while he was in protective custody awaiting a hearing.
Cowan signed off on the review committee's denial of protective
custody to Plaintiff.
Defendant Alison was a case supervisor. Plaintiff attested that
he told Alison that he was in danger because his cellmate was
asking questions about the 1997 attack. Alison voted not to allow
Plaintiff placement in protective custody. Alison based his
decision on Defendant Nesbitt's investigation and Plaintiff's
inability to identify his enemies.
Plaintiff told Defendant Whittenburg about the troubles he had
with an inmate named Scarface. Further, the Deputy Director of
the IDOC called Whittenburg and told him to place Plaintiff in
protective custody. Whittenburg put Plaintiff in protective
Defendant Tucker works in Inmate Issues. She was based in
Springfield, Illinois. She conducted a video conference meeting
with Plaintiff concerning his protective custody request.
Plaintiff told her about the incident with the two men dressed in
black entering his cell. Plaintiff did not reveal any enemies to
Defendant McAdory was the Assistant Warden of Programs at
Menard. He was on the committee that denied protective custody
for Plaintiff. He voted to place Plaintiff in a single cell
because he felt that Plaintiff had mental health issues which would warrant such placement.
Defendant Hassemeyer was also on the committee that denied
protective custody for Plaintiff. He too voted no.
First, Plaintiff objects to the Report arguing that Judge
Frazier erred when he found that Plaintiff has offered no
evidence which should have alerted any of the Defendants to the
fact that he was peculiarly at risk of attack. Plaintiff contends
that he did supply evidence that he was a greater risk of harm at
Menard than the general population. Specifically, Plaintiff
contends that he was a greater risk because the other inmates
considered him to be a snitch. Plaintiff further maintains that
the danger can be seen because he was attacked shortly after he
was released from Administrative Custody.
A prison official's deliberate indifference to a substantial
risk of serious harm to an inmate violates the Eighth Amendment.
Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994). The Supreme Court in Farmer considered the
correct definition of "deliberate indifference." Id. at
835-40, 114 S.Ct. 1970. After comparing deliberate indifference
with common-law tort recklessness, the Court expressly rejected
an objective test for deliberate indifference. Id. at 837,
114 S.Ct. 1970. Because a subjective recklessness test for
deliberate indifference "isolates those who inflict
punishment," the Court concluded that it is the appropriate
requirement in Eighth Amendment suits against prison officials. Id. at 839, 114 S.Ct. 1970 (emphasis added). "[A]
prison official cannot be found liable under the Eighth Amendment
. . . unless the official knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware
of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference." Id. at 837, 114 S.Ct. 1970.
In cases alleging a failure to protect, "a prisoner normally
proves actual knowledge of impending harm by showing that he
complained to prison officials about a specific threat to his
safety." Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996)
(emphasis added). It is true that courts may "infer `deliberate
indifference to a known hazard' where prison officials fail to
protect an inmate who belongs to an identifiable group of
prisoners for whom the risk of assault is a serious problem of
substantial dimensions, including prisoners targeted by gangs."
Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997); see
also James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir.
1992) (stating "deliberate indifference" means "recklessness
in a criminal, subjective sense: disregarding a risk of danger
so substantial that knowledge of the danger can be inferred").
In this case, however, Plaintiff has offered no evidence that
any of the Defendants were aware of a specific threat to his
safety. Plaintiff has not demonstrated that Defendants knew that
he was in danger and consciously disregarded that risk. Plaintiff
admitted that he was not aware of who attacked him. As it stands, the record supports only one conclusion, that
Plaintiff was the unfortunate victim of inmate-on-inmate violence
which is all to prevalent in jails and prisons nationwide. See
McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991) (It is
common knowledge that "prisoners are dangerous" and "some level
of brutality and sexual aggression among them is inevitable no
matter what the guards do.").
Here, Plaintiff attempts to establish a causal connection based
on the fact that he was a known snitch and the attacks against
him. The Court finds that Plaintiff has not proven this link.
See Haley v. Gross, 86 F.3d 636, 643 FN33 (7th Cir. 1996)
("[T]here must be some link between the risk of which the
official was aware and the harm that actually occurred-as it
would be unfair to hold officials liable for risks they could not
have anticipated simply because they ignored other unrelated
risks-prison officials need not be specifically aware of the
precise risk that unfolds"). Plaintiff did not produce material
evidence to establish that Defendants knew, let alone,
intentionally disregarded any substantial risk of harm to
Plaintiff's safety. Furthermore, the evidence does not reveal
that any Defendants had animus towards him that would effect
their decision not to place him in protective custody.
Next, Plaintiff objects to the Report arguing that Judge
Frazier erred when he failed to recommended that final judgment
be entered against Defendant Nesbitt. Specifically, Plaintiff
argues that since Default Judgment has been entered against Nesbitt in this action, Judge Frazier erred in
recommending that judgment be entered in favor of all Defendants.
The Court rejects this objection.
A review of the record indicates that Default Judgment has not
been entered in favor of Defendant Nesbitt. The record reveals
that only an entry of Default has been entered against
Defendant Nesbitt.*fn3 Furthermore, Plaintiff has not moved
for Default Judgment as required by FEDERAL RULE OF CIVIL
FEDERAL RULE OF CIVIL PROCEDURE 55(b)(2) is applicable to the
situation at bar, since the amount of plaintiff's claim against
defendant cannot be determined from the face of the complaint.
Accordingly, it is incumbent upon plaintiff to move for entry of
default judgment. Fed.R.Civ.P. 55(B)(2). With that said, even
if plaintiff were to file the proper motion, the Court finds, on
this record, pursuant to 28 U.S.C. § 1915(b)(2)(B), that
Plaintiff is not entitled to relief against Nesbitt as Plaintiff
has failed to produce any evidence to support his claims against
any of the Defendants, let alone Defendant Nesbitt.*fn4
However, the Report is silent on the issue of Nesbitt in
particular and so it cannot be determined if the matter was even
considered in specific by Judge Frazier. This undersigned judge
suspects not. One can further speculate that the evidentiary
hearing was a busy affair and since Plaintiff's counsel has the appreciation of the Court for taking
this matter on in the first place, there will not be much time
spent second guessing how things could have been done differently
in this regard. Suffice it to say, the matter of how to deal with
Defendant Nesbitt obviously slipped everyone's mind and so the
Court will remand that specific issue to Judge Frazier for
handling. For ease of potential appellate review the Court will
withhold entering judgment until that matter is resolved.
Accordingly, the Court REJECTS Plaintiff's objections to the
Report and ADOPTS the Report as to all of the Defendants except
for Defendant Nesbitt. The case against Defendant Nesbitt is
remanded to Magistrate Judge Frazier for further proceedings as
IT IS SO ORDERED.
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