The opinion of the court was delivered by: Michael P. McCuskey Chief United States District Judge
Tuesday, 18 January, 2011 11:20:12 AM Clerk, U.S. District Court, ILCD
MEMORANDUM OPINION AND ORDER
Before the court are Defendant, Winter's summary judgment motion , Plaintiff's response  and Defendants' reply . Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and CDIL-LR 7.1(D)
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. It is also well settled that "conclusory allegations and self-serving affidavits, if not supported by the record, will not preclude summary judgment. Keri v. Barod of Trustees of Purdue University, 458 F.3d 620, 628 (7th Cir.2006)(citing Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997).
On January 21, 2009, Plaintiff, Vantice L. Beshears filed his complaint against Stephen Winters (hereinafter referred to as "Winters"), one unknown C/O, the Champaign County Sheriff's Office and Champaign County. On August 19, 2009, the Court held a Merit Review Hearing to evaluate the sufficiency of Beshears' Complaint. On August 19, 2009, this Court entered an Order wherein Beshears was allowed to pursue a Section 1983 claim against Stephen Winters for an alleged use of excessive force and against one unknown C/O for alleged failure to protect and intervene. The other named Defendants were terminated from the case. No unknown remaining party defendants were identified. Beshears' brought his Complaint, under 42 U.S.C. § 1983. Beshears, a federal prisoner, was on a writ transfer from the Bureau of Prisons, Terre Haute, Indiana to the Champaign County in Illinois for a criminal proceedings in the Champaign County Court where he had previously been convicted on a charge of theft. He alleges that on February 19, 2008, while a detainee at the Champaign County Correctional Center, he was placed in an unlawful hold by Winters and that an unknown C/O failed to intervene. Beshears alleges that Winters' actions were excessive use of force and that the unknown C/O's inaction was a failure to intervene and protect his constitutional rights under the 8th Amendment. Plaintiff filed his lawsuit pursuant to U.S.C. Section 1983. At the time of the alleged incident, the plaintiff was a federal prisoner held in a county jail. It is not unusual for federal prisoners awaiting trial or sentencing or some other court proceeding to be held in county jail facilities. Ordinarily, a county employee caring for federal prisoners arguably becomes a federal actor, rather than the requisite state actor, rendering § 1983 inapplicable. See 42 U.S.C. § 1983; cf. Wilkinson v. Dotson, 544 U.S. 74, 87 (2005). However, in this case, the court reasonably assumes a writ was issued for the plaintiff's appearance by the state court judge in the criminal proceedings. Therefore, the court also reasonably assumes the plaintiff was not held in jail under a contract between the federal government and the Champaign jail for his imprisonment, subsistence and care of Beshears, but rather the tab for his stay was picked up by the County of Champaign. Therefore, the defendants would be state actors and it would be proper for the plaintiff to proceed pursuant to § 1983.
Undisputed Material Facts*fn1
1. Stephen Winters is a corrections officer employed by the Champaign County Sheriff's Department. (Winters Aff., ¶ 3, attached as Exhibit 1).
2. Stephen Winters is a Certified Field Training Officer in Control Tactics and Tasers and routinely taught courses to other law enforcement and corrections officers as adjunct faculty at the University of Illinois Police Training Institute from 2004 through 2010. (Winters Aff., ¶ 4)
3. Jeremy Heath received his B.S. Degree from western Illinois University in 2001. Heath began working as a Correctional Officer with the Corrections Division of the Champaign County Sheriff's Department in 2001, worked there until September, 2008 and since that time has been employed by the Rantoul Police Department in the Patrol Division. (Heath Aff., ¶ 3)
4. Ryan Snyder began working for the Champaign County Sheriff's Department as a Master Control Operator in the Champaign County Correctional Center in June, 2006, held that position from June, 2006 until September, 2008 and has served as a Correctional Officer with the Corrections Division of the Champaign County Sheriff's Department since that time. (Snyder Aff., ¶ 3)
5. On or about February 19, 2008, Winters and Heath were employed in their capacity as corrections officers at the Champaign County Sheriff's Department and working in the Champaign County Correctional Center. (Winters Aff., ¶ 5) (Heath Aff., ¶ 4) (Snyder Aff., ¶ 4)
6. On or about February 19, 2008, Snyder was employed in his capacity as a master control operator and working in the Champaign County Correctional Center. (Snyder Aff., ¶ 4)
7. On that date and at the relevant time, Heath had responsibility to move four or five inmates by himself from the "dress-in" area to the actual housing ward pod of the Champaign County Correctional Center. (Heath Aff., ¶ 5) (Winters Aff., ¶ 6) (Snyder Aff., ¶ 7)
8. Among this group of inmates was Vantice Beshears. (Heath Aff., ¶ 5)
9. As Heath began to move this group of inmates from the "dress-in" area to housing, inmate Beshears informed him that he wanted his legal papers. (Heath Aff., ¶ 6)
10. Heath asked Beshears to describe the legal papers he wanted and that Heath would retrieve and deliver them to Beshears once he was done moving the group into housing unit pod. (Heath Aff., ¶ 6)
11. At that point, inmate Beshears stopped walking towards the housing unit and indicated that was unacceptable to him and he wanted his papers before they ...