The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for case management and consideration of the defendants' motions for summary judgment as to Count II of the plaintiff's complaint. [ d/e 39, 43]
The plaintiff filed this complaint pursuant to 42 U.S.C. §1983 on May 21, 2004 claiming that his constitutional rights were violated at Pontiac Correctional Center. The plaintiff named eight defendants. The pro se plaintiff did not clearly outline his allegations, so the court reviewed the plaintiff's intended claims in a merit review hearing. On June 29, 2004 the court found the plaintiff has adequately alleged the following claims:
1) Defendants Baker and Scrogum used excessive force in violation of the Eighth Amendment when they beat the plaintiff on October 10, 2003.
2) Defendant Atkinson failed to protect the plaintiff from the October 10, 2003 attack in violation of the Eighth Amendment.
3) Defendants Baker and McBurney retaliated against the plaintiff for his past grievances in violation of the First Amendment. The defendants retaliated in a variety of ways including continued attacks, interference with mail and interference with the plaintiff's living conditions.
4) Defendants Mote and Wilson failed to protect the plaintiff in violation of the Eighth Amendment when the plaintiff complained about the conduct of the other defendants and Defendants Mote and Wilson took no action.
5) Defendants Baker, Scrogum, Tangman, McBurney, and Hendrickson violated the Eighth Amendment when they either put the plaintiff in a freezing cell with no bedding or clothing, or repeatedly turned off his water and toilet, or refused to feed the plaintiff.
FIRST MOTION FOR SUMMARY JUDGMENT
The defendants filed motions for summary judgment concerning only the plaintiff's claims concerning the October 10, 2003 incident. The defendants stated that the plaintiff had been disciplined as a result of the same incident, and had not claimed that this discipline was overturned. On July 13, 2005, the court granted the defendants' motions and dismissed the October 10, 2003 claims and Defendant Atkinson.
The court also noted that the plaintiff had not filed a response to this motion for summary judgment. The court gave the plaintiff fourteen days to inform the court whether he intended to pursue this litigation. The plaintiff responded by stating that he had in fact filed a response to the motion for summary judgment and provided a copy of his response. The plaintiff provided no explanation for why this document was not provided to the clerk of the court. The outside of the document indicates a postmark of July 29, 2005 which was after the court had already ruled on the pending motion and is also well past the deadline for filing a response.
The defendants have now filed notices with the court stating that they have learned that the discipline the plaintiff had received for the October 10, 2003 incidents had been expunged by the Administrative Review Board on March 21, 2005. The defendants claim they were not aware of this action until after the court granted the motions to dismiss. The defendants also state they believe the plaintiff has still failed to state a claim since his action did not accrue until the loss of good time credits had been resolved. Washington v. Summerville, 127 F.3d 552, 556 (7th Cir. 1997); Wiley v. City of Chicago, 361 F.3d 994, 996 (7th Cir. 2004). Therefore, the defendants argue the court did not have jurisdiction until the disciplinary ticket had been overturned on March 21, 2005.*fn1
The plaintiff's complaint made no mention of the disciplinary ticket. In fact, the plaintiff did not even mention the discipline had been expunged in his untimely response to the motion for summary judgment. The plaintiff has also not responded to the Notice to the Court filed ...