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Brewer v. McCoy

March 25, 2010

TERRENCE BREWER, PLAINTIFF,
v.
MICHAEL MCCOY, ET AL., DEFENDANTS



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

SUMMARY JUDGMENT ORDER

This cause is before the court for consideration of the Defendants' Motion for Summary Judgment [d/e 46] and the Plaintiff's response.

I. BACKGROUND

The Plaintiff filed his lawsuit pursuant to 42 U.S.C. §1983 claiming his constitutional rights were violated by defendants at the Peoria County Jail. On January 29, 2008, the court conducted a merit review of the Plaintiff's complaint and found that he had adequately alleged that Defendants Judy Moss, Carol Closen, Cory Hosea and DaShaune Paul violated his Fourteenth Amendment rights when they failed to protect him from an inmate assault on October 22, 2007. See January 29, 2008 Court Order.

II. FACTS

The Plaintiff did not factually respond to the Defendants' statement of undisputed facts. Therefore, the following facts are taken from the Defendants' motion as well as the exhibits provided by both parties.

Defendant Steven Smith says he is the Peoria County Jail Superintendent. Smith says there is a grievance/complaint procedure available for inmates that was in place during the Plaintiff's incarceration. (Def. Memo, Smith Aff, p. 1) The inmate must first fill out an Inmate Request Form. The procedure states that complaints must be written on an inmate request form and signed by the inmate. The forms will then be "forwarded as addressed." (Def. Ex. G, Att. 1). The inmate is to receive a response within 5 days. If the inmate is not satisfied with the response, he can ask that the answer be reviewed by the Jail Superintendent. (Def. Ex. G, Att. 1).

Smith says he has searched the jail records and found that the Plaintiff submitted a grievance on November 18, 2007 concerning the alleged assault and received a response from the Assistant Superintendent. There was no appeal of this grievance.

Defendant Judith Moss is employed as a Deputy at the Peoria County Jail. Moss says she did not work on September 25, 2007, and did not receive any Inmate Request Forms from the Plaintiff on this date. (Def. Memo, Moss Aff, p. 1) Moss also says she did not receive any Inmate Request Forms from the plaintiff on October 12, 2007. In addition, Moss says she had no conversations with the Plaintiff about his safety or any threats to his safety prior to the October 22, 2007 incident. (Def. Memo, Moss Aff, p. 1).

Dashaune Paul says he is a Correctional Officers at the Peoria County Jail. Paul says he did not work on September 25, 2007 and was not given any forms on this date by the plaintiff. (Def. Memo, Paul Aff., p. 1) Paul says during the relevant time period of this case, he was working the second shift at the jail from 1:30 p.m. to 10:00 p.m. and was assigned to F Pod. The defendant says normally officers remain in their assigned pods. Paul says all in-house matters such as Inmate Request Forms are handled by officers in the specific pod. Therefore, on October 12, 2007, Paul says he was not assigned to H Pod and does not believe he ever went to that pod. (Def. Memo, Paul Aff., p. 1) Paul says he never received any Inmate Request Forms from the plaintiff stating that he feared for his safety. Paul says he was never aware prior to October 22, 2007, that the plaintiff believed he was in any jeopardy.

Cynthia Closen Durham says she is a Sergeant at the Peoria County Jail. The Defendant says at no time prior to October 22, 2007, did she receive any Inmate Request Forms from the plaintiff concerning his safety, nor did he inform her in any other way that he felt threatened. (Def. Memo, Dur. Aff, p. 1). Durham says after the October 22, 2007 incident, she received two Inmate Request Forms from the plaintiff which she responded to. The Defendant has provided copies of the forms which show the Plaintiff received a response the next day.

Defendant Hosea says he is a Correctional Officer at the Peoria County Jail and during the relevant time period worked the first shift from 5:30 a.m to 2:00 p.m. On September 10, 2007, the Defendant says he was assigned to SP Pod which is on the opposite side of the Peoria County Jail from H Pod. The Defendant says officers generally remain in their assigned pods and inmates are not allowed to move to other pods on their own. Hosea says he was not given any Inmate Request Forms from the Plaintiff on September 10, 2007. (Def. Memo, Hos. Aff, p. 2) Hosea says the Plaintiff did not tell him of his fears in any other way prior to the October 22, 2007 incident.

The plaintiff says he does not know where or when he would have given an Inmate Request Form to Defendants Hosea and Paul (Def. Memo, Plain. Aff, p. 11, 23-24)

On October 22, 2007, at about 7:45 a.m, Defendant Hosea says he was serving breakfast to inmates in the H Pod which has four sections. The Defendant says he found the Plaintiff at the door to H4 Pod. The plaintiff said two inmates approached him and one, Terry Bennett, hit him in the mouth after a disagreement over a breakfast tray. The Plaintiff was taken to the hospital due to an injury to his ...


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