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Davis v. Owens

September 26, 2008

JEFFERY T. DAVIS, PLAINTIFF,
v.
DAVID OWENS ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the court is the Defendants' unopposed*fn1 summary judgment motion [285] filed pursuant to Rule 56 of the Federal Code of Civil Procedure and CDIL-LR 7-1(D)(1), on the grounds that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law.

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 March 27, 2006, Davis filed an amended complaint in Case No. 06-1047 which was subsequently consolidated with this case by the court on April 7, 2006. The amended complaint in 06-1047, inadvertently, was not filed in 05-1238 until August 10, 2006. Davis' claims in his amended complaint arise out of his detention in the McLean County Detention Facility (hereinafter referred to as "Jail") in February 2005. In its Order dated November 2, 2007, the court reinstated the defendants, McLean County, David Owens, Thomas Phares, Greg Allen, Jamey Kessinger, Melinda Fellner, Kenneth Pacha, Patricia Peifer and Joseph Schapmire, only for the claims that (1) that the defendants subjected Davis to unreasonable use of force out of retaliation for his "attempt" to file a civil rights lawsuit against McLean County and (2) that defendants subjected Davis to unsanitary conditions of confinement out of retaliation because of allegedly placing him in a holding cell completely contaminated with human waste.for a period of approximately eight hours.

In his amended complaint, Davis alleges that on or about February 14, 2005, correctional staff of the Jail did use unreasonable and unnecessary force upon the plaintiff; without legal justification, by spraying the plaintiff about the head and shoulders with pepper foam in retaliation for plaintiff's attempting to file a civil rights suit against McLean County and the jail staff. (Am. Complaint, p.5). Davis also alleges that he was unnecessarily handcuffed behind his back.unnecessarily strapped into a restraint chair for a period of 2 hours with pepper foam in his eyes. (Am. Complaint, p. 6). He further alleges that he was forced to enter and remain inside a holding cell that was completely contaminated with human waste and excrement and for a period of approximately 8 hours. (Am. Complaint, p. 6). Davis alleges that these purported retaliatory actions were sanctioned by the policy making and/or condoned by the policy making authority of McLean County and/or its Sheriff. (Am. Complaint p. 5-6).

The Defendants assert that Davis' allegations are not supported by any evidence including deposition testimony, affidavits or any other documentary evidence in this case. Defendants further assert that summary judgment in favor of defendants, McLean County, David Owens, Thomas Phares, Greg Allen, Jamey Kessinger, Melinda Fellner, Kenneth Pacha, Patricia Peifer and Joseph Schapmire, is appropriate because Davis has failed to provide and cannot produce any evidence that the defendants retaliated in any way against him for "attempting" to file a civil rights complaint. Further, the Defendants contend that the undisputed evidence demonstrates that (1) Davis was not subjected to inhumane conditions of confinement during his detention in Jail, (2) the use of force against Davis was not in retaliation, but rather in response to safety concerns due to his aggressive behavior, (3) Davis has failed to come forward with the necessary evidence establishing the personal responsibility of defendants for the alleged violations of his constitutional rights, and (4) Davis has failed to come forward with the necessary evidence establishing that an official policy, custom or policy maker sanctioned the allegedly retaliatory conduct.

Statement of Material Undisputed Facts*fn2

1. Plaintiff Jeffery Davis was a detainee at the Jail during the relevant time period. (Schapmire Aff. ¶3).

2. Defendant David Owens was the elected Sheriff of McLean County in February 2005. In his position, Owens would not have regular contact with detainees. (Owens Aff. ¶ 4). Owens had no personal knowledge of the incidents on February 14, 2005 and February 15, 2005 and did not have knowledge of Davis' intention to file a lawsuit against McLean County. (Owens Aff. 5,6,7).

3. Defendant Thomas Phares was the Jail Superintendent of the Jail in February 2005. In his position, Phares would not have regular contact with detainees. (Phares Aff. ¶1,4). Phares had no personal knowledge of the incidents on February 14, 2005 and February 15, 2005. (Phares Aff. ¶7, 16, 17).

4. Defendant Greg Allen was the jail operations supervisor in the Jail in February 2005. In that position, Allen did not have regular contact with detainees. (Allen Aff. ¶ 1,4). Allen had no personal knowledge of the incidents on February 14, 2005 and February 15, 2005 and did not have knowledge of Davis' intention to file a lawsuit against McLean County. (Allen Aff. ¶ 7,10,15,16,17).

5. Defendant Jamey Kessinger was the jail operations supervisor in the Jail in February 2005. In that position, I did not have regular contact with the detainees. (Kessinger Aff. ¶1, 4) Kessinger had no personal knowledge of the incidents on February 14, 2005 and February 15, 2005. (Kessinger ¶6,9, 14, 15, 16)

6. Kenneth Pacha is a correctional officer in the Jail and is employed by the McLean County Sheriff. (Pacha Aff. ¶1). Pacha has the rank of sergeant. (Pacha Aff. ¶1). Sergeant Pacha was a supervisor on the second shift at the Jail in February 2005. (Pacha Aff. ¶1). As a supervisor, Sgt. Pacha did not have regular contact with prisoners. (Pacha Aff. ¶4). Generally, Sgt. Pacha had contact with a prisoner only ...


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