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Lamon v. McCann

September 28, 2009

ANDREW LAMON (#R-16056) PLAINTIFF,
v.
TERRY MCCANN, DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen United States District Judge

Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

The plaintiff, a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, correctional officials, violated the plaintiff's constitutional rights by acting with deliberate indifference to his safety. More specifically, the plaintiff alleges that he was denied placement in protective custody at the Stateville Correctional Center despite the defendants' knowledge that he faced imminent danger from enemy gang members in the prison's general population. This matter is before the court for ruling on the sole remaining defendant's motion for summary judgment. For the reasons stated in this order, the motion is granted.

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 moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Walker v. Northeast Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7th Cir. 2000). However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

FACTS

The defendant filed a statement of uncontested material facts pursuant to Local Rule 56.1(a)(3) (N.D. Ill.). The defendant also served on the plaintiff the mandatory notice under Local Rule 56.2, explaining the requirements of the Local Rules and warning the plaintiff that his failure to respond with appropriate evidentiary support could result in entry of judgment against him. (Document no. 117, Notice to Pro Se Litigant.) Notwithstanding the admonition, the plaintiff's response, captioned "Genuine Issue of Material Fact," fails to comply with the court's Local Rules. The plaintiff does not respond to the defendant's statement of facts; he has simply added two additional facts and makes several legal arguments, without citations to the record in support of his factual assertions. But unsupported statements in a brief are not evidence and cannot be given any weight. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

The plaintiff's failure to controvert the facts as set forth in the defendant's statement results in those facts being deemed admitted. Id. A litigant's failure to respond to a Local Rule 56.1 Statement results in the court considering the uncontroverted facts as true. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). The court may disregard statements and responses that do not properly cite to the record. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005); Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997). The court need not "scour the record to locate evidence supporting a party's legal argument." Argyropoulos v. City of Alton, 539 F.3d 724, 740 (7th Cir. 2008), quoting Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005).

Although courts must construe pro se pleadings liberally, see Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006), a plaintiff's pro se status does not absolve him from complying with these Local Rules. See Greer v. Board of Ed. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001); see also McNeil v. United States, 508 U.S. 106, 113 (1993) ("we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.") A plaintiff's self-serving statements, which are speculative and unsupported by specific, concrete facts reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999).

Because the plaintiff is proceeding pro se, the court will consider the factual assertions he makes in his opposing brief, but only to the extent that the plaintiff could properly testify about the matters asserted at trial--that is, only with respect to those facts within the plaintiff's personal knowledge. See Fed. R. Evid. 602. The court therefore finds that the following facts, as set forth by the defendant in his uncontested statement of facts and supported by citations to the record, are undisputed [the court has also included the plaintiff's additional facts]:

The plaintiff, a state prisoner, was an inmate at the Stateville Correctional Center at all times relevant to this lawsuit. (Amended Complaint. p. 2.) The defendant, Terry McCann, was Stateville's warden during the time period in question. (Ibid.)*fn1

The plaintiff was transferred from the Pontiac Correctional Center to the Stateville Correctional Center in or around August of 2006. (Defendants' Exhibit A, Deposition of Andrew Lamon, at p. 19.) The plaintiff was initially placed in "X House Intake" for about three weeks, as are all new arrivals at Stateville. (Id., p. 51; Defendant's Exhibit C, Affidavit of Jerry Baldwin, ¶ 7.)

X House is comprised of four groups of inmates on five separate wings: intake (i.e., inmates who are going through orientation); protective custody group 2 (inmates approved for placement in protective custody); protective custody group 3 (inmates who have requested protective custody but are awaiting a final decision from the institution); and protective custody group 4 (inmates who have been denied protective custody at the institutional level but are awaiting a final determination by the Administrative Review Board). (Baldwin Affidavit, ¶¶ 6-10.)

Inmates in X House are kept separate from all other prisoners in the general population, segregation, and inmates on court writs. (Id., ¶ 11.) In addition, the inmates in protective custody groups 2, 3 and 4 are kept separate from the intake inmates. (Ibid.)

Upon completing his orientation, the plaintiff was moved to X House protective custody, presumably because he had sought protective custody status at Pontiac. (Plaintiff's Dep., pp. 19, 51.) The plaintiff remained in X House protective custody group 3 and/or 4 until about November 2006. (Id.; Defendants Exhibit E, Affidavit of Timothy Clevenger, at ¶ 3; Baldwin Affidavit, ¶ 14.)

In November 2006, the plaintiff had a hearing before the Administrative Review Board regarding his request for placement in protective custody. (Exhibit 3 to Plaintiff's Deposition.) At the ARB hearing, the plaintiff was still unable to name any inmate who was currently threatening him. (Plaintiff's Dep., pp. 21, 23.) Rather, the plaintiff's request for placement in protective custody was based on the 2004 attack at the Menard Correctional Center by "high-ranking gang members." (Id., pp. 21-22, 23.) However, to the plaintiff's knowledge, his inmate assailants were not housed at Stateville. (Id., p. 22.) The plaintiff had never been threatened or ...


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