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Bahler v. Lopez

October 15, 2009

DANIEL G. BAHLER, PLAINTIFF,
v.
KENNY LOPEZ 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 are the defendants' summary judgment motion [96], the plaintiff's response [101] and the defendant's reply [102]. The defendants seeks summary judgment pursuant to Fed. R. Civ. Pro. Rule 56.

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). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment .. Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K&R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.

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.

Introduction

The plaintiff s seeks recovery of civil damages under the provisions of 42 U.S.C. 1983, the Civil Rights Act. In his complaint, he alleges, inter alia, that his civil rights were violated while he was incarcerated in the McLean County Detention Facility, McLean County, Illinois, (the "Detention Facility") when excessive force was used by the defendants. Specifically, the plaintiff filed a three count Amended Complaint on or about March 2006 against the defendants. Count I alleges claims of excessive force and denial of access to court that occurred in July 2003 against the defendants, Loper, Galloway and Rushing. Count II alleges claims of excessive force and denial of access to court that occurred in August 2003 against the defendants, Galloway and Rushing. Count III alleges a claim of excessive force that occurred on February 3, 2004 against the defendants, Galloway and Defendant Rushing. The court notes that there are no allegations made against Defendant Owens. This court initially found all claims time barred. On appeal, the Seventh Circuit Court of Appeals reversed in part finding Count III (the "shock belt" claim) as timely filed within the 2-year statute of limitations. Further, the defendants filed an Answer and Affirmative Defenses pursuant to the Seventh Circuit Court of Appeals' order that Count I and Count II were time barred for being filed outside the 2-year statute of limitations. Thus, only Count III remains a timely filed claim. On page 3 of his Complaint, the plaintiff stated he never filed a grievance. This court entered an order on August 6, 2009 welcoming the defendants to file a motion for summary judgment on the ground that the plaintiff's claim is barred because he failed to exhaust the grievance procedures available to him at the Detention Facility.

Undisputed Material Facts

1. Plaintiff's Complaint states that Plaintiff never filed a grievance concerning the facts alleged in his Complaint. (Complaint, p. 3)

2. Gregory J. Allen is the Superintendent of the Detention Facility. (Affidavit of Gregory J. Allen, ¶ 1)

3. As Superintendent Gregory J. Allen is responsible for and supervises the day-to-day operations of the Detention Facility. He is responsible for the hiring, discipline and termination of all correctional officers, command staff and administrative staff at the Detention Facility. His duties also involve addressing security, safety and computer issues in the facility, collecting and reporting payroll information, providing guidance to shift supervisors, and accounting for collected fees. (Affidavit of Gregory J. Allen, ¶¶ 2 and 3)

4. Gregory J. Allen is personally familiar with the file of the plaintiff, Daniel G. Bahler while he was an inmate of the Detention facility during the time when the conduct alleged in his Complaint took place. (Affidavit of Gregory J. Allen, ¶ 3)

5. William Galloway, Kenny Loper and Clifford Rushing were employed as McLean County deputies during the time the plaintiff was incarcerated. ...


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