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Powers v. Snyder

March 26, 2009


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


Before the court are Defendants, LARRY DEATHERAGE, CHARLES McBURNEY, RANDY GOODWIN, JAMES SCHOMIG, EDWIN BOWEN, and MARK PIERSON's (hereinafter IDOC Defendants) summary judgment motion [218], Plaintiff, THOMAS POWERS' response [226] and Defendants' reply [228].


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.


Plaintiff, Thomas Powers, is an inmate within the Illinois Department of Corrections and currently housed at Dixon Correctional Center. He filed the instant complaint pursuant to 42 U.S.C. §1983, alleging numerous constitutional violations against numerous defendants. At this point in the litigation, the claims remaining against Defendants herein are as follows. First, Defendants Deatherage, McBurney, and Schomig in violation of the Eighth Amendment forced Plaintiff to work at job that required him to perform labor beyond his physical capacity due to bone degeneration and arthritis in one of his hips. [Doc. 205]. Similarly Plaintiff alleges that Defendant refused to allow Plaintiff a walking cane despite his hip condition. [Doc. 205]. Second, Defendants Schomig, Bowen, and Pierson, all former wardens of correctional institutions in which Plaintiff was housed, caused Plaintiff to be exposed to excessive levels of environmental tobacco smoke (ETS). [Doc. 205]. Finally, Plaintiff alleges that Defendant Schomig restricted the visits of Plaintiff's wife, Margie Powers, and friend, Joann Amato, in retaliation for Plaintiff's grievances. [Doc. 205]. These Defendants now move for summary judgment on all claims.

Undisputed Material Facts

1. Plaintiff worked as a porter on death row at Pontiac Correctional Center in June and July of 2001. (Plaintiff's Deposition, pg. 88).

2. On June 15, 2001, June 18, 2001, and June 24, 2001, Plaintiff filed grievances, requesting a job change because of pain in his hip. (Affidavit of Becky Williams, Bates Stamp Numbers 8, 11, 13).

3. In response to Plaintiff's grievances the Medical Director examined Plaintiff and found a job restriction was not medically necessary. (Affidavit of Becky Williams, Bates Stamp Numbers 9, 10, 12 , 14).

4. Defendant Deatherage, a correctional lieutenant, was Plaintiff's immediate supervisor for his job on death row in June and July 2001. (Plaintiff's Deposition, pg. 87).

5. Plaintiff alleges that Defendant Deatherage saw the pain Plaintiff was in at work but denied him a job change. (Plaintiff's Deposition, pg. 88).

6. Plaintiff testified that Defendant Deatherage's responses to Plaintiff's requests for a job change was to refer back to Dr. Funk's decision. (Plaintiff's Deposition, pg. 88).

7. Defendant Schomig was warden of Pontiac Correctional Center from July 1999 to May 2002. (Affidavit of James Schomig).

8. Plaintiff alleges that he informed Warden Schomig of the pain he was experiencing while working on death row at Pontiac. (Plaintiff's Deposition, pg. 92).

9. According to Plaintiff, Warden Schomig responded that he relied on Dr. Funk for issues regarding medical care. (Plaintiff's Deposition, pg. 92).

10. Plaintiff wanted Defendant Schomig to tell Dr. Funk that Plaintiff required a job change. (Plaintiff's Deposition, pg. 92).

11. Defendant Schomig is not a medical professional and, during his tenure as warden of Pontiac, relied on the physicians at Pontiac to meet inmates' medical needs, including responding to inmate concerns regarding the appropriateness of certain work assignments. (Affidavit of James Schomig).

12. Plaintiff transferred to Hill Correctional Center in August 2002. (Plaintiff's Deposition, pg. 93).

13. Plaintiff testified that he walked to the dietary department at Hill where he was employed. Plaintiff alleges that as he went to put his cane in the closet, Defendant Goodwin confiscated Plaintiff's cane as Plaintiff was about to put it in a closet. Plaintiff's cane was returned to him the next day. (Plaintiff's Deposition, pg. 94).

14. A day after Plaintiff's cane was returned to him, it was taken again. (Plaintiff's Deposition, pg. 94).

15. Plaintiff does not know if Defendant Goodwin was involved in taking his cane the second time. (Plaintiff's Deposition, pg. 95-96).

16. As a result of Defendant Goodwin's actions, Plaintiff alleges he was without his cane for one day. ...

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