The opinion of the court was delivered by: Harold A. Baker United States District Judge
SUPPLEMENTAL SUMMARY JUDGMENT ORDER
This cause is before the court for consideration of additional summary judgment briefing on the surviving claims as requested by the court on September 8, 2008.
The pro se plaintiff originally filed her complaint pursuant to 42 U.S.C.§1983 against five defendants at Dwight Correctional Center. The plaintiff then retained counsel and filed an amended complaint.
On September 8, 2008, the court granted the defendants' motion for summary judgment in part and denied the motion in part. The plaintiff has the following surviving claims:
1) Defendant Ray Gubbles violated her Eighth Amendment rights by the use of excessive force on July 9, 2004;
2) Defendant Andrew Grove violated the plaintiff's Eighth Amendment rights when he failed to protect the plaintiff from the attack by Defendant Gubbles on July 9, 2004;
The court also required the parties to provide more briefing on the following surviving claims:
3) Defendant Gubbles violated the plaintiff's First and Fourth Amendment rights based on the handling of the plaintiff's letters on July 9, 2004;
4) Defendant Gubbles committed the state law offense of assault and battery on July 9, 2004; and
5) Defendant Gubbles, Andrew Grove and Barbara Hoffmeyer committed the state law offense of intentional infliction of emotional distress.
The parties have complied. However, the plaintiff has filed a motion to strike the brief provided by the defendants because it fails to meet the requirements of Local Rule 7.1 which requires a separate statement of undisputed facts. [d/e 54] It is unfortunate that the defendants did not provide an additional statement of undisputed facts. However, the court will not strike the brief. The court will not consider a statement by the defendants as a "fact" without some supporting evidence. The motion to strike is denied.
The following facts are taken from the first and second motions for summary judgment. There are still many disputed facts over key incidents which are noted below.
The plaintiff was housed at the Dwight Correctional Center from February of 2003 until March of 2007 when she was released from the Illinois Department of Corrections. In July of 2004, the plaintiff was housed in the segregation unit. (Def Memo, Ex.A, Plain Depo, p. 14). The segregation unit is an isolation unit for individuals considered to be more aggressive, and who have violated institutional rules. There are greater restrictions on inmates in segregation, but they do have the same mail privileges as inmates in the general population. (Def. Reply, p. 2).
The plaintiff states that when she sends out a non-privileged letter, it has to be left unsealed for so mail room staff can check for escape plans, contraband or other security violations. (Def. Memo, Ex. A, Cornell Depo, p. 34.)
On July 9, 2004, the plaintiff says she planned to mail out two letters, one to her mother and one to her boyfriend. She put magazine subscriptions in the letter to her mother. Defendant Officer Ray Gubbles says there was only one letter from the plaintiff which contained magazine subscriptions. He opened this letter and read part of it over the prison intercom system. (Def. Memo, Ex. B, Gubbles Depo, p. 104, 106) Defendant Gubbles claims that some inmates send out magazine subscription cards for other inmates as a joke, and inmates are not allowed to use other inmates names and identification numbers listed. (Def. Memo, Ex B, Gubbles Depo, p. 103)
The parties disagree about what was said over the intercom. The plaintiff and her cell mate allege the defendant opened the letter to her boyfriend, announced it was "story time" and read personal, sexually explicit portions over the intercom. (Plain. Memo, Ex. A, Cornell Depo., p. 41, Ex. B, Parks Depo, p. 58, 59). Defendant Gubbles says the letter was a "love letter" but did not contain any sexual references. (Def. Memo, Ex. B, Gubbles Depo, p. 122) The court notes Defendant ...