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Cintora v. Downey

March 4, 2010


The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge


Before the court are the defendants, A Ahrens, Emery, J Most and Villafuerte's summary judgment motion [48], the plaintiff's response [63] and the defendants' reply [64]. Defendants Corporal Ahrens, and Officers Emery, Most and Villafuerte move for summary judgment on Cintora's excessive force and failure to protect claims against them. Defendants assert that they did not physically touch Plaintiff, much less harm him and therefore lacked personal involvement in the alleged use of force. Further, Defendants assert they were not afforded a reasonable opportunity to protect Cintora from Officer O'Connor's alleged use of force. Defendant Brandon O'Connor acknowledges that questions of fact preclude him from moving for summary judgment as to Plaintiff's excessive force claim.


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.


Pursuant to Section 1983, Plaintiff Miguel A. Cintora filed a complaint against Defendants Corporal Angela Ahrens, Correctional Officer Brandon O'Connor, Correctional Officer Manuel Villafuerte, Correctional Officer Antonio Emery and Correctional Officer Jeremy Most, claiming excessive force and failure to protect. On June 19, 2008, the Plaintiff was tased by Defendant O'Connor, who was accompanied by Defendants Ahrens, Villafuerte, Emery and Most at Jerome Combs Detention Center. Plaintiff then fell, hit his head and was temporarily unconscious, during which time he was taken back to his cell and placed in lockdown. Defendants Angela Ahrens, Manuel Villafuerte, Antonio Emery and Jeremy Most have moved for summary judgment on the excessive force and failure to protect claims. The Plaintiff opposes this motion because he believes the defendants' failure to intervene when Defendant O'Connor tased the Plaintiff renders them culpable under § 1983.

Statement of Material Undisputed Facts

1. On June 19, 2008, Plaintiff had a scheduled visit for 6:00 p.m. with his parents at his location of incarceration, the JCDC. (Cintora's Deposition, pp. 15, 16 attached to Defendants' Statement of Facts as Exhibit A.)

2. At around 12:00 p.m., Cintora contacted Officer Taylor at the front desk and spoke with an Officer Taylor who informed him that he was allowed to keep his 6:00 p.m. visit and that he would be taken to another unit. (Id.)

3. Then, at approximately 5:50 p.m., Officer Montalvo contacted Cintora and told him that he would have to contact his parents to reschedule his appointment. (Id. at p. 17.)

4. Officer Ahrens told Officer Montalvo that insufficient officers were available to ...

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