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Dunham v. Baker

March 21, 2007

MICHAEL DUNHAM, PLAINTIFF,
v.
CORRECTIONAL OFFICER JOHN BAKER, 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 defendants' motions for summary judgment. [d/e 52, 55]. Defendant Baker filed his motion for summary judgment on March 27, 2006. [d/e 52] Notice of the dispositive motion and the deadline for filing a response was mailed to the plaintiff on the same day.[d/e 54] Defendants Scrogum, Mote, Wilson, Tangman, McBurney and Hendrickson filed their motion for summary judgment on April 28, 2006. [d/e 55] Again, notice of the dispositive motion and deadline for filing a response was sent to the plaintiff. [d/e 57] The plaintiff has failed to file any response to either motion.

I. BACKGROUND

The plaintiff, Michael Dunham, brought this action pursuant to 42 U.S.C. §1983 alleging that his constitutional rights were violated at the Pontiac Correctional Center. The plaintiff has eight surviving defendants including Correctional Officers John Baker, Dale Scrogum, Corey Wilson, Gregory Tangman, Lex McBurney, Sargent Atkinson and Shane Hendrickson as well as Warden Stephen Mote. The plaintiff's surviving claims include:

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 or his past grievances in violation of the First Amendment. The defendants retaliated in a variety of ways including continued attacks, interfering with mail and 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.

The defendants have now responded by filing motions for partial summary judgment asking the court to dismiss claims 2, 3,4 and 5. A district court cannot properly rule upon a motion for summary judgment without providing the opposing party a "reasonable opportunity" to contradict the material facts asserted by the movant. Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir.1982). This means that a pro se prisoner, who is a plaintiff in a civil case, is entitled to receive notice of the consequences of failing to respond to a motion for summary judgment. Id.

In this case the plaintiff was repeatedly advised that he could "not simply rely upon the allegations made in your complaint." [d/e 54, 57] The plaintiff was also admonished that if he did "not submit affidavits or other documentary evidence contradicting the defendants' assertions, the defendants' statement of facts will be accepted as true for the purposes of summary judgment." Id. The plaintiff was also provided with a copy of Federal Rule of Civil Procedure 56(e).

Accordingly, the court finds that the plaintiff was given notice and a fair opportunity to present counter-affidavits or other evidence in opposition to the defendants' motion. Nonetheless, the plaintiff has failed to provide any type of response to either motion for summary judgment.

II. FACTS

The following facts are taken from the defendants' statements of undisputed fact, the defendants' exhibits and, where appropriate, the plaintiff's complaint and attachments.

The plaintiff's complaint alleges that on October 10, 2003, he refused direct orders from officers to give them a tray that was in his cell. As a result, he was transferred to a "more disciplined cell." (Comp., p. 4) In his deposition, the plaintiff states that Officers Atkinson, Andrew and Baker came to escort him. (Def. Memo, Plain. Depo, p. 13) The plaintiff alleges that Officer Baker assaulted him. The plaintiff says he could not see the other two officers, but he heard Officer Atkinson run up and tell Officer Baker to stop. Id. The plaintiff's complaint also alleges that Officer Scrogum beat him as he was transferred to the new cell.

Defendant Dale Scrogum is a Lieutenant at Pontiac Correctional Center. Scrogum claims before October 10, 2003, he was unaware that the plaintiff had any made any complaints or filed any grievances against him or the other defendants. Defendant Scrogum claims he was not informed of any complaints or grievances between October 10, 2003 and October 23, 2003.

Defendant John Baker was a correctional officer at Pontiac Correctional Center. Defendant Baker says he was not aware of any grievances the plaintiff had filed against him or Defendant McBurney on October 10, 2003. The defendant also says he was not aware of any complaints the plaintiff had made about him to his superior officers or to internal affairs. Defendant Baker adds that he never turned off the water to the plaintiff's cell at any time between October 10, 2030 and October 23, 2003.

Defendant Lex McBurney, Gregory Tangman and Shane Hendrickson were all correctional officers at Pontiac Correctional Center. Each claims they were unaware of any complaints or grievances the plaintiff lodged against them or any other officer. They also claim they did not turn off the water to the plaintiff's cell at any time between October 10, 2003 and October 23, 2003.

The plaintiff says he could not see who turned the water off to his cell, but says Defendant Baker admitted that he had turned off the plaintiff's water on a couple of occasions. (Plain. Dep., p. 51) The plaintiff in his deposition also states that he has no direct evidence that Defendant Baker retaliated against him based on prior grievances he had filed. (Def. Memo, Plain. Depo.,p. 36). The plaintiff further states that ...


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