The opinion of the court was delivered by: Judge David H. Coar
MEMORANDUM, OPINION AND ORDER
Plaintiff Richard Lloyd ("Lloyd"), currently an inmate at Stateville Correctional Center, brings this pro se complaint pursuant to 42 U.S.C. § 1983, alleging that defendants Warden Kenneth R. Briley ("Warden Briley"), Lieutenant Akinola Iyiola ("Lt. Iyiola"), and Lieutenant T. Davis ("Lt. Davis") (or collectively "Defendants"), violated his constitutional rights.
Lloyd makes three claims. First, he alleges that on February 18, 2004, he was given six months of segregation for a disciplinary infraction. This disciplinary report is not at issue. On March 8, 2004, Lt. Iyiola moved him from Cell I1 C 12 to Cell I2 E 12 which had no lights or electricity and wires were hanging out of the walls. He remained there until April 9, 2004, a total of 33 days.
Second, Lloyd claims that on June 18, 2004, he was moved to Cell I1 G 7, which had no water. On June 21, 2004, he asked Lt. Davis to get him some ice because of the heat. Lt. Davis told him to drink out of the toilet. About 30 minutes later, Lloyd was placed in a strip cell with no sheets, toilet paper, or any personal property. He remained there for 13 days and then was moved back to the same cell with no water. Lloyd claims that he was not issued a disciplinary report.
Third, Lloyd claims that on June 18, 2004, he received a notice that his segregation time of six months had been reduced to three months. However, he was not released from segregation and was forced to serve the entire time.
Lloyd filed a motion for summary judgment to which Defendants filed both a cross-motion for summary judgment and a response. Lloyd filed a response to Defendants' cross-motion for summary judgment and Defendants filed a reply. For the following reasons, the court grants defendants Briley, Iyiola, and Davis's cross-motion for summary judgment and denies Lloyd's motion for summary judgment.
I. Standard of Review on a Motion for Summary Judgment and a Cross-Motion for Summary Judgment
Summary judgment is proper when 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); see also Lewis v. Holsum of Ft. Wayne, Inc., 278 F.3d 706, 709 (7th Cir. 2002) ("If the nonmoving party fails to make a sufficient showing on an essential element of her case, the moving party is entitled to judgment as a matter of law because 'a complete failure of proof concerning an essential element of the [non-movant's] case necessarily renders all other facts immaterial.'" (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In order to present a genuine issue of material fact, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Id. at 587 (citing First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
The party moving for summary judgment has the initial burden of submitting affidavits and other evidentiary material to show the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. Once the moving party has sustained the initial burden, the opposing party may not rest upon the mere allegations or denials of the pleadings, but instead must come forward with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a genuine issue for trial. Id. at 324. Moreover, a party may not attempt to survive a motion for summary judgment through the submission of an affidavit that contradicts testimony in his deposition or other sworn testimony. Flannery v. Recording Industry Ass'n of America, 354 F.3d 632, 638 (7th Cir. 2004); Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001).
Because both parties have moved for summary judgment, the court evaluates each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir. 1987). However, this does not necessarily mean the court must grant judgment as a matter of law for one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts. Id.
A. Plaintiff's Local Rule 56.1 (a)(1)(3) Statement of Material Facts and Defendants' Response
Lloyd has set forth the following statement of facts that he contends are both material and undisputed and entitle him to summary judgment on his claim of denial of due process of law. Defendants responded to each statement
1. Plaintiff was never given a disciplinary report when he was placed in a strip cell for 13 days.
Response: Defendants deny this statement as plaintiff was not placed in a cell designated as a strip cell. See Exhibit A.
2. Plaintiff was not allowed to present his case before an adjustment committee or call witnesses in his behalf.
Response: Defendants deny this statement as there was no case for him to present. Inmates may be placed in any prison or cell within a prison at the discretion of the Department of Corrections.
3. Plaintiff's segregation time was cut in half from 6 months to 3 months, yet plaintiff was made to do the whole 6 months without any due process of law.
Response: Defendants object to the form of this statement as it is a legal conclusion. Without waiving said objection, Defendants admit that the plaintiff's segregation time was cut in half, but it was cut in half after plaintiff already served the segregation time. Furthermore, placement in segregation is not a constitutional violation as it does not pose an atypical significant hardship upon plaintiff. Because there was no atypical significant deprivation, plaintiff was not entitled to any due process rights. However, plaintiff was still afforded due process rights with regards to being sent to segregation.
4. Plaintiff was placed in a cell with no running water at all for a period of five days. Then after being removed from the strip cell, was placed back in the same cell I 16-7 with no running water.
Response: Defendants deny this statement as he was not placed in any cell for a period of five days. See Exhibit C.
5. Plaintiff was placed in a cell with no lights at all for a period of 33 days. Thirty-three days sitting in a dark cell.
Response: Defendants deny this statement as he was not placed in a cell with no lights for a period of 33 days. See Exhibit A.
6. Plaintiff was subjected to cruel and unusual punishment when he was denied toilet paper, soap, sheets or a toothbrush for 13 days. He was in a strip cell, with only a urine-stained mattress to rest upon.
Response: Defendants deny this statement as he was not placed in a ...