The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
Pending before the Court is Defendants James George and Jake Null's motion for summary judgment (Doc. 157). Townsend opposes the motion (Doc. 164). Based on the record, the applicable case law and the following, the Court grants Defendants' motion for summary judgment.
On April 14, 2003, Herman Townsend, an inmate housed at the Tamms Correctional Center, filed suit against 153 Defendants alleging deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 (Doc. 1). Thereafter, Townsend filed an Amended Complaint on July 16, 2003 (Doc. 9). On April 1, 2005, District Judge Foreman conducted a preliminary review of the case pursuant to 28 U.S.C. § 1915A (Doc. 9).*fn1 The Court broke Townsend's claims into 5 Counts against the various defendants: Count 1 against Cruise, Gibson, George, Grubbs, Hilliard, Kizzer, J. Moore, Nieghbors, Null, Plott, Sanders, Shields, Smith, Studder, Walker and Wallard for use of excessive force in violation of his rights under the Eighth Amendment; Count 2 against Blair, Clark, C/O Clover, Dillingham, Drodge, Edwards, Folsom, Gibbs, Goins, Capt. J. Johnson, C/O Jordan, Kelley, Londrigan, Marsalek, McGovern, C. Moore, Morgan, Neighbors, Nix, Null, Ode, Osman, Prater, Rice, Richards, Rowody, Russell, Schmidt, Smith, Taylor, Welborn, and Wolfe for interfering with his access to the courts in violation of his rights under the First and Fourteenth Amendments; Count 3 against Nurse Jane Doe, Chandra, Elders, Grizzwald, Kate Jordan, Kelley, Marsalek, Powers, Rhodes, Richards and Walton for denying his medical treatment in violation of his rights under the Eighth Amendment; Count 4 against Newell for tampering with his food in violation of his rights under the Eighth Amendment; and Count 5 against all 153 Defendants for allowing other inmates to assault him in violation of his rights under the Eighth Amendment. After reviewing the claims contained in the five counts, the Court dismissed in part some of the claims contained in Count 2, dismissed the claims contained in Count 3 and Count 5 and dismissed a majority of the individual named Defendants (Doc. 9, p. 19-20). Counts 1, 4 and portions of Count 2 survived the preliminary review by the Court.*fn2
The allegations against Defendants George and Null are contained in Count 1. In Count 1, Townsend claims Defendants George and Null assaulted him on August 24, 2001.
Now before the Court is Defendants George and Null's May 8, 2006 motion for summary judgment (Doc. 157). Defendants George and Null argue that they are entitled to summary judgment because Townsend has failed to prove that Defendants violated his Eighth Amendment rights by allegedly assaulting him on August 24, 2001; that his allegations of excessive force are barred by Heck v. Humprhey, 114 S.Ct. 2364 (1994) and Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003); that Townsend failed to prove the need of any injunctive relief and that Townsend failed to prove that Defendants are not entitled to qualified immunity. That same day, Defendants George and Null also filed the notice required by Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982) (Doc. 159). Townsend filed his response to the motion arguing that there are genuine issues of fact that preclude summary judgment (Doc. 164). Defendants filed a reply on June 23, 2006 (Doc. 165). The Court now turns to address the merits of the motion for summary judgment.
Summary judgment is proper where the pleadings and 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); Oats v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)(citing Celotex, 477 U.S. at 323). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
In response to a motion for summary judgment, the non-movant may not simply rest upon the allegations in his pleadings. Rather, the non-moving party must show through specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). In reviewing a summary judgment motion, the court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir. 2001)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249). The "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient to show a genuine issue of material fact." Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 933 (7th Cir. 1997)(citing Anderson, 477 U.S. at 252).
No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996), cert. denied, 519 U.S. 1055 (1997); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). "[P]laintiff's own uncorroborated testimony is insufficient to defeat a motion for summary judgment." Weeks, 126 F.3d at 939. Further, Plaintiff's own subjective belief does not create a genuine issue of material fact. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 401 (7th Cir. 1997).
In addition, Fed. R. Civ. P. 56(e) states: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Affidavits offered "in support of or opposition to summary judgment create an issue of fact only to the extent that they provide evidence that would be admissible if offered live on the witness stand." Watson v. Lithonia Lighting, Nat'l Service Industries, Inc., 304 F.3d 749, 751-52 (7th Cir. 2002). Furthermore, "self-serving statements contained in an affidavit will not defeat a motion for summary judgment when those statements are 'without factual support in the record.' " Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004)(quoting Albiero v. City of Kankakee, 246 F.3d 927 (7th Cir. 2001)). However, a self-serving affidavit supported by facts in the record can create a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). The record "may include the affidavit itself, providing that the affidavit meets the usual requirements for evidence on summary judgment including the requirement that it be based on personal knowledge." Id. The trial judge has broad discretion to disregard an affidavit on summary judgment. See Corder v. Lucent Technologies, Inc., 162 F.3d 924, 927 (7th Cir. 1998).
Here, it is significant to note that Townsend is proceeding pro se. Pro se complaints and pleadings are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Kyle II v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999) (citing Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 478 (7th Cir. 1988)). Pro se pleadings are held to "less stringent standards than formal pleadings drafted by lawyers." Henderson v. Sheahan, 196 F.3d 839, 845-46 (7th Cir. 1999)( citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
The Eighth Amendment prohibiting cruel and unusual punishment is applicable to the states through the Fourteenth Amendment. It has been a means of improving prison conditions that were constitutionally unacceptable. See, e.g., Robinson v. California, 370 U.S. 660, 666 (1962); Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994). As the Supreme Court noted in Rhodes v. Chapman, 452 U.S. 337, 346 (1981), the amendment reaches beyond barbarous physical punishment to prohibit the unnecessary and wanton infliction of pain and punishment grossly disproportionate to the severity of the crime. Id., (quoting Gregg ...