The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for consideration of the defendants' motion for summary judgment. [d/e 81].
The pro se plaintiff filed his complaint pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at Pontiac Correctional Center. The plaintiff named 15 defendants including Correctional Officers Robert Eiler, Burton Gestner, Michael Melvin, James Blackard and Jeffery Malnar; Warden Eddie Jones; Assistant Wardens Joseph Mathy and Robert Griffin; Illinois Department of Corrections (herein IDOC) Director Roger Walker; IDOC Officer Brian Fairchild; IDOC Deputy Director Barbara Hunt; Investigations Officer Joseph Burk; Counselor Randall Flex and Internal Affairs Investigators Jack Libby and Karl Webber.
After merit review of the plaintiff's complaint, the court found the plaintiff had alleged the following claims:
a) Each defendant failed to protect the plaintiff from assault by another inmate on October 20, 2006.
b) Defendant Robert Eiler was deliberately indifferent to the plaintiff's serious medical condition on October 20, 2006.
c) Defendants Burton Gestner and Robert Eiler conspired to allow the other inmate to assault the plaintiff on October 20, 2006.
d) Defendants Brian Fairchild and Roger Walker conspired to conceal inmate violence by refusing to respond to the plaintiff's claims that he was in danger.
e) Defendants Roger Walker and Eddie Jones failed to properly train correctional officers which lead to the assault against the plaintiff.
The first four claims are against the defendants in their individual capacities only. The final claim against Defendants Walker and Jones is an official capacity claim. See February 26, 2008 Court Order, June 6, 2008 Court Order.
The defendants originally filed their motion for summary judgment on June 2, 2009. On June 8, 2009, the court entered an order that dealt with more than twenty motions to compel filed by the plaintiff. See June 8, 2009 Court Order. Since the motions were granted in part and denied in part, discovery was briefly extended and the plaintiff was given additional time to file a response to the pending dispositive motion.
On August 6, 2009, the plaintiff filed a motion asking for additional time to file his response which was granted by the court. See [d/e 88]; October 5, 2009 Text Order. The plaintiff was ordered to provide his response on or before October 26, 2009. The plaintiff was also admonished that "[d]ue to the length of time since the dispositive motion was filed, no further continuances will be allowed." October 5, 2009 Text Order. No further motions or documents or responses have been filed by the plaintiff.
II. DEFENDANT JOSEPH BURKE
The court notes that on June 19, 2009, the defendants filed a Suggestion of Death regarding Defendant Joseph Burke. Because the plaintiff is proceeding pro se, the court asked the defendants to inform the court whether a personal representative had been appointed for Defendant Burke. The defendants were ordered to provide the information on or before June 30, 2009 and the defendants complied with that order. See June 19, 2009 Court Order: June 19, 2009 Amended Suggestion of Death.
The plaintiff was also informed that once this information was provided, he had 90 days to name a substitute defendant pursuant to Federal Rule of Civil Procedure 25(a)(1). June 19, 2009 Court Order. The plaintiff has taken no further action. Therefore, the court will dismiss Defendant Burke.
Since the plaintiff failed to file a response to the pending summary judgment motion, the following undisputed facts are taken from the defendants' motion and exhibits:
Defendant Eiler says he is a Correctional Officer at Pontiac Correctional Center. Defendant Eiler says on the morning of October 20, 2006, he and Officer Gestner were assisting each other in escorting inmates to the showers. (Def. Memo, Eiler Aff., p. 1) Officer Gestner was on his lunch break when the defendant got to the plaintiff's cell. The defendant says when he was assisting the plaintiff, the plaintiff began to walk faster than the officer and stopped in front of Inmate Capshaw's cell. Defendant Eiler says the plaintiff then asked him if he had seen Inmate Capshaw "pay him." (Def. Memo, Eiler Aff., p. 1-2). Defendant Eiler says he saw no contact between the plaintiff and Inmate Capshaw and when he walked past the cell, he saw Inmate Capshaw sitting on his bed. (Def. Memo, Eiler Aff., p. 2).
The defendant says as he locked the plaintiff in the shower cell, the plaintiff asked the defendant if he saw a red mark on his face. Defendant Eiler says he told the plaintiff there was no mark. The plaintiff then asked for Magic Shave and to see Officer Gestner. The officer said he got the Magic Shave and gave it to the plaintiff. (Def. Memo, Eiler Aff., p. 2)
Defendant Eiler says the plaintiff never complained to him about being afraid for his life or that he was having trouble with anyone. In addition, Defendant Eiler says the plaintiff did not request medical care nor did the defendant see ...