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Dorn v. Keller

November 21, 2006

TYRONE DORN, PLAINTIFF,
v.
KEVIN KELLER, ET.AL., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for consideration of the defendant's motion for summary judgment [d/e 44] and the plaintiff's motion to amend his complaint.[d/e 47].

I. BACKGROUND

The plaintiff, a state prisoner, originally filed his complaint pro se on February 18, 2003 against four defendants at the Pontiac Correctional Center including Officers Kevin Keller and Jeffery Baker, Lieutenant Dale Scrogum and Medical Technician Sue Hankins. On February 5, 2004, counsel entered his appearance for the plaintiff. On March 23, 2004, the court found the plaintiff had adequately alleged that:

1) Defendant Keller and Baker used excessive force against the plaintiff in violation of the Eighth Amendment on April 1, 2001;

2) the defendants were deliberately indifferent to the plaintiff's serious medical condition in violation of the Eighth Amendment on April 1, 2001;

3) the defendants violated the plaintiff's equal protection rights; and

4) the defendants violated the state law of negligence and intentional tort.

This case has been delayed on several occasions pursuant to the Soldiers and Sailors Act and due to the illness of plaintiff's counsel. The defendants have now filed a motion for summary judgment for the court's consideration.

II. FACTS

The following facts are taken from the defendants' motion for summary judgment and the plaintiff's response.

On April 1, 2001, the plaintiff was incarcerated in the North Segregation Unit 5 Gallery at Pontiac Correctional Center. The plaintiff states that Officer Baker and Keller were conducting shift count at approximately 9:30 p.m on this evening. The plaintiff alleges the officers came over to his cell and assaulted him. The plaintiff claims his hand was injured and bleeding after the assault. Neither Baker nor Keller got medical attention for the plaintiff.

Lieutenant Scrogum arrived at the plaintiff's cell shortly after the attack. Officer Scrogum called Medical Technician Hankins to the cell to treat the plaintiff. The parties do not agree about what took place next. The plaintiff alleges that Hankins took one look at his hand and said he would need stitches. However, the plaintiff says he was not taken to the medical unit, nor was his hand bandaged. The plaintiff says he did not receive medical treatment until the next morning.

Hankins medical notes indicate she was called over to the cell house to evaluate the plaintiff's injuries at about 10:15 p.m. Hankins noted that the plaintiff had a "superficial wound" on his thumb and was "uncooperative, would not let me view his hand or clean wound." (Def. Memo, Ex. D.)

The medical records also show that the plaintiff was allowed an "urgent care visit" the next day at 8:25 a.m. The plaintiff told staff he had been assaulted by prison staff. The notes refer to several abrasions and swelling on his left arm, thumb and fingers. (Def. Memo, Ex. D).

III. LEGAL STANDARD

The entry of summary judgment is proper only "if 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 a judgment as a matter of law." Fed. R. Civ. P. 56( c). A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury could find for the nonmoving party. Id.

A party moving for summary judgment initially has the burden of showing the absence of any genuine dispute of material fact based on the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153 (1970); Schroeder v. Barth, Inc., 969 F.2d 421, 423 (7th Cir. 1992). A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). The evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255. Nonetheless, "(s)ummary judgment is not a discretionary remedy. If the plaintiff lacks enough evidence, summary judgment must be granted." Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994).

IV. ANALYSIS

A. DEFENDANT BAKER

The defendants first argue that Officer Jeffery Baker did not have any personal involvement in the plaintiff's claims. The parties agree that the plaintiff's complaint does not name the correct defendant. In his complaint, the plaintiff claims he was assaulted by Officer "Jeffery" Baker. The plaintiff had not met the officer before the incident. The officer signed the incident report "J. Baker" with a badge number of 2882. The officer who was involved in the incident is named "John" Baker and his badge number is only one digit different than Officer Jeffery Baker's number. The plaintiff has now filed a motion to amend his complaint to insert the correct defendant's name.

Rule 15(c) of the Federal Rules of Civil Procedure determines whether or not a plaintiff may amend his complaint to add a new defendant once the statute of limitations period has run. Amendments changing the party or the naming of a party "relates back" to the date of the original filing of the complaint if:

. . . [the claim arose from the same conduct asserted in the original complaint] and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the ...


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