The opinion of the court was delivered by: Harold A. Baker United States District Judge
The plaintiff is currently incarcerated in Hill Correctional Center. He pursues a claim against Defendants Walker and Battaglia for failing to protect him from an assault by other inmates at Stateville Correctional Center. He also pursues a claim against Defendants Polk and Zimmerman for retaliating against him at Western Illinois Correctional Center for protected First Amendment activities.*fn1 The defendants have moved for summary judgment, which is granted for the reasons below.
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). This burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. "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. 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). "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). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992).
Many of these facts are adopted verbatim from the defendants' proposed undisputed facts, to the extent not disputed by the plaintiff. The cites are to the exhibits attached to the defendants' memorandum, d/e 94, unless otherwise noted.
1. The plaintiff was incarcerated in Stateville Correctional Center from June 2002 to May 2005.
2. In early 2005, the plaintiff "was approached by gang members and was made aware of an [alteration in the gang's recognition methods,] new ways of throwing up gang signs and shaking hands, to which [he] refused because [he] was not interested in participating in a gang." (Plaintiff's Affidavit, d/e 103, Ex. D). This was taken by the gang members as a sign of disrespect and rumors began circulating that the plaintiff might receive "formal charges" from the gang. Id. The year before the plaintiff had tried to participate in the gang renunciation program, but had decided against it because it required him to testify against gang members, which would have endangered his life. Even though Villareal did not participate in the renunciation program, the plaintiff believes that he became a suspect and was perceived as a threat by gang members. Id. ¶ 4-5.
3. The plaintiff avers that:
6) I contacted the Internal Affairs department and the administration several times about my fears of retribution from the gang, but I was told that without full cooperation and testimony against all the gang members or the ability to identify a specific individual whom I feared would assault me, there could be no protection afforded to me.
7) While in kick out segregation in February 2005, I believed I had the identifiable threat that they were looking for and I contacted Internal Affairs, Counselor Franklin, and Warden Dee Battaglia over the course of the next months seeking protection from the gang.
8) In March 2005, I saw Warden Battaglia in the visiting room while visiting with my mother and I questioned her about my letter and if she had received it. She said she received it and said they were investigating but she wasn't sure what more could be done. If I couldn't give her a name then her hands were tied at the time.
4. The plaintiff maintains in his answers to interrogatories that, from August 2004 to April 2005, he sent "repeated kites to Defendant Battaglia and Internal Affairs, warning of imminent danger upon Plaintiff's release from segregation in February of 2005. (Defendant's Interrogatories, p. 2).
5. Plaintiff alleges that upon his release from segregation in February of 2005 he was placed in the same cell house as James Garcia, "one of the gang heads" and a person Plaintiff had allegedly asked to be protected from. (Defendant's Interrogatories, p. 2; (Plaintiff's Deposition, pp. 94-95).
6. The plaintiff was moved to gallery nine on March 30, 2005. (Plaintiff's Aff. ¶ 9). Plaintiff did not refuse housing when assigned to a cell in D House in February or March of 2005. (Exhibit E). He did not ask for protective custody.
7. The night of March 30, 2005, at the showers, the plaintiff was surrounded by inmate James Garcia and other gang members of the Latin Folk Nation. He was informed of the "charges" against him, adjudged guilty, and Garcia punched the plaintiff in the mouth several times. (Plaintiff's Aff. ¶ 10). The ...