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Oliver v. Beaty

September 22, 2008

DAVINE OLIVER, PLAINTIFF,
v.
INMATE KYLE BEATY, SHERIFF ROBERT E. KINDERMAN, AND CHIEF DEPUTY DAVID L. MAHAN, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the court are the defendants' summary judgment [61] and the plaintiff's response*fn1 thereto [64].

Standard

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If

[the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e).

Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.

Background

On September 21, 2007, the court invited the parties to file a well-supported dispositive motion on the plaintiff's claim that the defendants failed to protect the plaintiff from assault by another inmate. In compliance with the court's order, the defendants submitted a supplemental motion for summary judgment [61].

The plaintiff, Davine Oliver brings this action against the defendants, Christian County Sheriff Robert Kinderman, Christian County Chief Deputy Sheriff David Mahan, alleging constitutional violations under §1983. The plaintiff alleges a state claim against the defendant, Kyle Beaty, an inmate.

In his complaint, the plaintiff claims that defendants David L. Mahan and Robert E. Kinderman failed to protect him although he wrote several grievances to Mahan and Kinderman regarding Inmate Kyle Beaty's conduct and verbal threats made against the plaintiff. The plaintiff claims Mahan and Kinderman did not take his grievances seriously, did not respond and failed to protect him in violations of his constitutional rights.

Undisputed Material Facts*fn2

1. The plaintiff never expressed a concern for his safety while sharing quarters with Kyle Beaty. (Exhibit "A" Affidavit of Robert Kinderman ¶1) (Exhibit "B" Affidavit of David Mahan ¶ 1).

2. At all times relevant Sheriff Kinderman and Chief Deputy Mahan were unaware of any threats made by Beaty to Plaintiff prior to the incident described in the plaintiff's Complaint. (Exhibit "A" Affidavit of Robert Kinderman ...


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