The opinion of the court was delivered by: Proud, Magistrate Judge
Plaintiff Aaron Fillmore is in the custody of the Illinois Department of Corrections, and at all times relevant to the above-captioned suit he was housed at Menard Correctional Center. Plaintiff's Second Amended Complaint alleges that on February 4, 1997, multiple prison officials subjected him to cruel and unusual punishment in violation of the Eighth Amendment during the course of moving him and three other inmates from the West Cell House to the Segregation Unit. (Doc. 53). Plaintiff's journey between prison buildings involved several segments of activity, with various defendants participating at different times in varying ways. In Fillmore v. Page, 358 F.3d 496 (7th Cir. 2004), the Court of Appeals for the Seventh Circuit remanded this case, in part, for further proceedings. Following additional discovery and a bench trial, the Court issues the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
Procedural History and Current Posture of the Case
A discovery sanction caused the Court to sever the trial of defendants Page and Cleland from the other defendants who reached the trial stage in this case: Wilson, Chamness, Shemonic, Best, McCall, Jack, Higgins, Henderson, Potts and Scott. Page and Cleland proceed to trial first, in June, 2002. At the close of plaintiff's case-in-chief Page was dismissed pursuant to Federal Rule of Civil Procedure 50. The jury found in favor of defendant Cleland. The other defendants did not proceed to trial. Rather, in an awkward turn of events, based on the parties' "Stipulated Trial Testimony"and the record from the Page/Cleland trial, the Court entered judgment against plaintiff pursuant to Federal Rule of Civil Procedure 52(c).
Plaintiff appealed the entry of summary judgment in favor of defendants Grah and Mifflin, the Rule 50 judgment entered in favor of Page, the jury verdict in favor of Cleland, and the Rule 52(c) judgment in favor of Wilson, Chamness, Shemonic, Best, McCall, Jack, Higgins, Henderson, Potts and Scott. The Court of Appeals for the Seventh Circuit specifically affirmed: the judgments in favor of Henderson, Jack, Higgins with respect to the claims arising out of the transfer; the judgment in favor of Higgins with respect to the strip search; the claims against Wilson, and Page with respect to failure to intervene; the claims against Chamness, Shemonic, Best, McCall, Potts, and Scott for their action or inaction during the transfer; the jury verdict in favor of Cleland; and the summary judgments for Grah and Mifflin.
Fillmore v. Page, 358 F.3d 496, 510-511 (7th Cir. 2004). However, the appellate court reversed and remanded this court's "dismissal of Fillmore's claims against the unnamed defendants*fn2 who allegedly beat him in the Segregation Unit for further proceedings to ascertain whether any of the named defendants was involved in the beating, and if the specific actors can be identified, for further proceedings on that claim."Id. at 511.
Actually, the appellate decision identified two different alleged incidents to be addressed:
(1) "Fillmore alleges that upon his arrival at the Segregation Unit, one of the officers pushed his face against the bars of a caged area immediately outside the Segregation Unit, although he cannot identify which officer did so;" and
(2) "Upon reaching the cell, rather than waiting to uncuff Fillmore until he was safely locked inside the cell, Cleland uncuffed Fillmore outside the cell and then shoved him into the cell and onto the floor and began kicking and punching him. Fillmore immediately assumed the fetal position in an attempt to ward off the assault, but he saw at least two orange-clad legs joining in the beating."
Id. at 501. In any event, the final pretrial order entered prior to the second trial does not include any claim regarding the alleged use of force against plaintiff in the caged area outside the Segregation Unit. (Doc. 251, p. 2). Therefore, that particular claim is considered abandoned by plaintiff.*fn3 See Vaughn v. King, 167 F.3d 347, 352 (7th Cir. 1999) ("Pretrial orders supersede the pleadings."); see also Fed.R.Civ.P. 16(e). The only issue for decision on remand is whether any of the remaining defendants, used excessive force against plaintiff in his segregation cell, in violation of the Eighth Amendment.
Per the appellate court's instructions, discovery was reopened and plaintiff was given yet another opportunity to identify who was involved in the incident.*fn4 Nevertheless, plaintiff has acknowledged that he still is unable to identify exactly who assaulted him in cell 8-43 in the Segregation Unit. (See Doc. 242; and Doc. 251, p. 4, ¶ 8). Defendant Richard Jack is deceased; the claim against him has been dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1). (Doc. 262). Therefore, the only defendants remaining at this juncture are Wilson, Chamness, Shemonic, Best, McCall, Higgins, Henderson, Potts and Scott.
The Court hereby adopts the "Uncontroverted Facts" agreed to by the parties in the Final Pretrial Order (Doc. 251, p. 4), and generally incorporates what is depicted on the videotape in evidence (Plaintiff's Exhibit 1). In summary, it is undisputed that on February 4, 1997, at approximately 1:15 p.m., defendants Shemonic, Best, McCall, Jack, Higgins, Henderson, Potts and Scott were collectively activated as the Tactical Unit at Menard Correctional Center and dispatched to the West Cell House. Defendant Wilson was the commander of the Tactical Unit and he accompanied the team on February 4, 1997. Defendant Chamness was assigned to Internal Affairs at Menard and was the videographer who accompanied the Tactical Unit on the date in question. The Tactical Unit moved plaintiff and three other inmates, Zennon, Beauchamp and Ramlow, from the West Cell House to the North 1 Segregation Unit, where they were each strip searched before being placed into their respective new cells.
According to plaintiff, inmate Zennon, who was two cells down from plaintiff, threw something on one correctional officer and then another, which lead to plaintiff and inmates Zennon, Beauchamp and Ramlow being handcuffed and lined up on the gallery for transport to the Segregation Unit. (Transcript of Trial ("Tr."), Day 2-Morning Session ("D2-AM"), pp. 59-61). It is undisputed that none of the four inmates offered any resistance. (Tr. D2-AM, p. 61).
Defendant Wilson, the commander of the Tactical Unit, testified that he received word from the shift commander that the Unit was being mobilized and should report to Captain Gates in the West Cell House. (Tr. Day 1 ("D1"), pp. 32-37). Accordingly, all members converged on the Tactical Unit room to put their gear on--generally consisting of distinctive orange jump suits, helmets with clear masks, and light colored wood batons; none of which displays the wearer's name. (Tr. D1, pp. 31 and 34; and Plaintiff's Exhibit 1). Wilson did not know why the Unit was being mobilized until he arrived at the West Cell House and was told by Captain Gates. (Tr. D1, p. 33-34 and 37). However, defendant Henderson testified that Wilson told the Unit when they assembled that they were doing a cell extraction in the West Cell House, and defendant Shemonic similarly recalled knowing from the outset that the Unit was doing a cell extraction in the West Cell House. (Tr. D1, pp. 84 and 129). Defendant McCall's and defendant Best's discovery responses indicate they were aware, at least upon arrival at the West Cell House, that the Unit was going to perform a cell extraction on four inmates who were refusing to exit their cells, related to an assault on staff. (Tr. D1, pp. 153-155 and 171). Defendant Scott testified he learned the Unit's assignment was a cell extraction when the Unit arrived at the West Cell House, and he was completely unaware of the underlying incident. (Tr. D1, p. 142). According to defendant Potts, he did not learn about the underlying incident--the assault on two correctional officers--until he was dressing down after the escort was completed. (Tr. D1, p. 118). Similarly, Defendant Chamness, the videographer, testified that he only knew there had been an "unusual incident" in the West Cell House, and the learned about the assault only after all of the relevant events were over. (Tr. D2-AM, pp. 44-45). According to inmate Kevin Blumenberg, who was celled at the end of the West Cell House, when the Tactical Unit arrived at the West Cell House, defendant Wilson ...