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Bone v. Walker

January 25, 2010

ALLEN BONE, PLAINTIFF,
v.
ROGER E. WALKER, JR., 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 is the defendants' unopposed summary judgment motion [60].

BACKGROUND

Plaintiff, Allen Bone is currently incarcerated at Pontiac Correctional Center. On December 20, 2007, Plaintiff filed a 42 U.S.C. § 1983 lawsuit alleging a violation of his constitutional rights. In a February 7, 2008 Case Management and Merit Review Order, the court set forth Plaintiff's relevant claims as: 1) Defendants Yusko, Backard, John Doe #1, and John Doe #2 violated the Eighth Amendment when they used excessive force against the plaintiff on November 29, 2006; 2) Defendants Angus, Yusko, Benton, Walker, Jones, and John Doe #1, #2, and #3 violated the plaintiff's Eighth Amendment rights when they refused medical care to the plaintiff for injuries received on November 29, 2006; 3) Defendants Angus, Yusko, Benton, Walker, Jones, and John Doe #1, #2, #3 violated the plaintiff's Eighth Amendment and Fourteenth Amendment rights based on the placement and conditions in the strip cell on November 29, 2006. In a June 17, 2008 text order the court noted that Plaintiff identified John Doe # 3 as David Lingle. Defendant Lingle's waiver of service of summons was filed with the court on July 10, 2008. (Doc. 35). The record indicates Plaintiff did not submit the names of John Doe's #1 and #2. Plaintiff seeks compensatory damages in the amount of $50,000,000, punitive damages in the amount of $50,000,000, as well as attorneys fees and costs. (Complaint, p. 21).

Defendants deny they violated Plaintiff's constitutional rights through the use of excessive force, denial of access to medical care and treatment or conditions of confinement. Defendants deny Plaintiff is entitled to any relief and respectfully request summary judgment be entered in their favor.

SUMMARY JUDGMENT 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.

UNDISPUTED MATERIAL FACTS*fn1

1. Plaintiff is currently incarcerated at Pontiac Correctional Center.

2. Plaintiff transferred into Pontiac Correctional Center on November 29, 2006. (Exhibit A, Plaintiff's Deposition Transcript, p. 8).

3. Plaintiff informed Defendant Yusko he was on a hunger strike and wanted to speak to a supervisor. (Exhibit A, pp. 16-17).

4. Plaintiff asked to speak with Defendant Blackard. (Exhibit A, p. 17).

5. Plaintiff placed a towel over his window in an attempt to have a supervisor talk to him on November 29, 2006. (Exhibit A, p. 9, lines 8-11).

6. Plaintiff was told to remove the towel from his window and refused. (Exhibit A, p. 9, lines 14-17).

7. The tact team came to Plaintiff's cell in order to extract him from the cell. (Exhibit A, p. 10, lines 1-5).

8. Plaintiff was housed behind a solid door that had a window. (Exhibit A, p. 20, lines 8-9).

9. It is a rule violation to put a towel over your window. (Exhibit A, p. 19, lines 3-5).

10. A Lieutenant P. Todd was the tact team leader on November 29, 2006. (Exhibit A, p. 21).

11. Defendant Yusko was not a member of the tactical team. (Exhibit A, pp. 23- 24).

12. Defendant Blackard was not a member of the tactical team. (Exhibit ...


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