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Flournoy v. Schomig

October 20, 2009


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


This case was returned to the district court by the Seventh Circuit to proceed on the plaintiff's claims o f deliberate indifference to his serious medical needs by exposing him to the chemical agents in mace and on his claim of discrimination based on race by denying him a phone call and visits with his family. The court, through the Federal Civil Rights Clinic of The University of Illinois, College of Law, secured the services of two senior law students as pro bono counsel for the plaintiff. Now before the court are the two remaining defendants, JAMES M. SCHOMIG and JUDITH GRAGERT's second summary judgment motion [228], plaintiff's response [232] and defendants' reply [234].


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.


The plaintiff, a state prisoner, filed a complaint pursuant to 42 U.S.C. §1983, alleging that the defendants violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution. The plaintiff claims that his Eighth Amendment rights were violated because the defendants were deliberately indifferent to a serious risk of medical harm to the plaintiff as a result of exposing him to the chemical agents in mace used for disciplinary reasons on other inmates in his proximity. The plaintiff also claims that the defendants discriminated against him because of his race by denying him a phone call to his seriously ill father and visits with his family. The court has jurisdiction pursuant to 28 U.S.C. §1331 and 1343.

Undisputed Material Facts

1. The defendant Schomig was Warden of Pontiac from July 1999 to May 2002. (Schomig Aff., par. 3.)

2. The defendant Schomig was Pontiac Correctional Facility's Chief Administrative Officer. (Schomig Aff., par. 9.)

3. Pontiac is a statewide segregation facility in which inmates are confined to their cells for a majority of the day and movement within the institution is controlled. (Schomig Aff., par. 6.

4. The cell houses at Pontiac functioned as self-contained prisons within a prison, and the determination of whether force was necessary was made by the ranking officers in the cell house. (Schomig Aff., par. 7.)

5. During Schomig's tenure as Warden, Pontiac housed approximately 1600 inmates and employed approximately 800 staff. (Schomig Aff., par. 4.)

6. Chemical agents may be used on an inmate to enforce compliance with institutional rules and lawful orders of staff. (Schomig Aff., par. 8.)

7. Chemical agents cause an inmate to become more compliant, which lessens the chance of harm to both the inmate and staff. (Schomig Aff., par. 8.)

8. Chemical agents are used in emergency situations when an inmate is attempting to harm himself or another person. (Schomig Aff., par. 8.)

9. Chemical agents can only be used by officers with the rank of Lieutenant or above unless the chemical agent was used during extraction by the Tactical Team. (Schomig Aff., par. 10.)

10. According to Departmental Rules and Regulations, prior to a chemical agent being used, approval is required by the Chief Administrative Officer. (Schomig Aff., par. 9.)

11. Mace and other chemical weapons are expressly designed to affect mucous membranes of the sinus and eyes. Material Safety Data Sheet for Oleoresin Capsicum.

12. After the use of a chemical agent, the inmate upon which the agent was used was assisted with rinsing his eyes and body and was evaluated by a member of the health care staff if requested. (Schomig Aff., par. 11.)

13. The defendant Schomig claims he did not know about the plaintiff until the plaintiff filed this lawsuit. Schomig. (Schomig Aff., par. 16.)

14. Prior to a chemical agent being used, approval was required by Schomig, however, that approval could be, and was, delegated by Schomig to the Duty Warden, who was the rank of Assistant Warden or Major. (Schomig Aff., par. 9.)

15. The defendant Schomig signs hundreds of documents a week. Schomig Dep., p. 32, I. 3-4.

16. The defendant Schomig conducted rounds at the prison everyday. Schomig Dep., p. 40, I. 6-14.

17. Approval for the use of chemical agents was delegated by the defendant Schomig to the Duty Warden, who was of the rank of Assistant Warden or Major. (Schomig Aff., par. 17.)

18. Schomig did not approve any of the uses of chemical agent in the plaintiff's cell house at Pontiac. Schomig Affidavit and attached Use of Chemical Agent Log.

19. The plaintiff did not seek medical care when he was affected by the chemical agents in his vicinity. Plaintiff's Dep., p. 10, 1. 2-8; p. 16, 1. 24 - p. 17, 1. 9.

20. If an inmate had a medical problem that would be aggravated by exposure to chemical agents, a determination would have to be made by a physician and security staff notified. (Schomig Aff., par. 14.)

21. The defendant Gragert told the plaintiff to contact the nurse if he got sick after mace was sprayed. Plaintiff's Dep., p. 9, I. 17 - p.10, I. 1.

22. The plaintiff did not have any problems with his eyes noted on the Transfer Reception Screening form upon his arrival at Pontiac. (Grobe Aff., par. ____)

23. The plaintiff's medical records indicated that he had undergone surgery for his sinus and that he was identified as susceptible to glaucoma. Flournoy's ...

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