The opinion of the court was delivered by: Harold A. Baker United States District Judge
Wednesday, 30 March, 2011 01:56:22 PM Clerk, U.S. District Court, ILCD
MEMORANDUM ORDER AND OPINION
Before the court are Defendants' summary judgment motion  and Plaintiff's response . Defendants, Eugene McAdory, Larry Phillips, Carol L. Adams, Jon M.Heller and Shon C. Orrill move for summary judgment pursuant to Fed. R. Civ. Pro. Rule 56.
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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). 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). "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). "If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." Fed. R. Civ. P. 56(e). 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(c). 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(c)(4) (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).
Plaintiff, Gregory White, is civilly committed to the custody of the Illinois Department of Human Services (Department) pursuant to the Sexually Violent Persons Commitment Act, 725 Ill. Comp. Stat. Ann. 207/1 et seq. (West 2008) (SVP Act). Plaintiff brings his complaint pursuant to 42 U.S.C. §1983, against the former Secretary of the Department of Human Services, Carol Adams, the Rushville Treatment and Detention Facility (Rushville) Director, Larry Phillips, the Director of Security for the Rushville, Eugene McAdory, and two Security Therapy Aids, Shon Orrill and Jon Heller, also employed at Rushville. Plaintiff alleges his rights under the Constitution were violated when he was forced to spend several days in the Special Management Unit ("SMU") at the Rushville without toilet paper in April and October of 2008. Plaintiff also alleges defendants McAdory, Heller, and Orrill used excessive force against him on October 16, 2008 and all defendants were deliberately indifferent to his serious medical needs as a result of the force.
Undisputed Material Facts*fn1
1. Plaintiff alleges he was placed in a cell in Special Management Unit on April 21, 2008 and spent approximately 2 - 5 days there (Plaintiff's Dep., p. 26, l. 10 - p. 27., l. 5).
2. During the time Plaintiff was in the Special Management cell in April, 2008, he did not see defendant McAdory and defendant McAdory did not observe the condition of Plaintiff's cell (Plaintiff's Dep., p. 27, l. 6 - 16).
3. None of the other named defendants observed the conditions of the cell in Special Management Unit in April, 2008 (Plaintiff's Dep., p. 27, l. 17 - p. 28, l. 5).
4. Plaintiff did not complain directly to McAdory about the alleged lack of toilet paper, rather he complained to "staff." (Plaintiff's Dep., p. 28, l. 6 - 13).
5. Plaintiff believes McAdory knew of his complaints because "staff" told him McAdory said he "got nothing coming." (Plaintiff's Dep., p. 28, l. 11 - p. 29, l. 6).
6. McAdory never told Plaintiff he was not entitled to have toilet paper (Plaintiff's Dep., p. 29, l. 7 - 10).
7. Plaintiff never spoke directly with Adams or Phillips about the lack of amenities in Special Management in April 2008 (Plaintiff's Dep., 32, l. 9 - p. 33, l. 5).
8. Defendant Phillips never saw the conditions of Plaintiff's cell in Special Management in April, 2008 (Plaintiff's Dep., p. 33, l. 6 -12).
9. Plaintiff believes defendant Phillips knew about the conditions of his cell because he wrote grievances and he believes Phillips signs off on all the grievances. (Plaintiff's Dep., p. 33, l. 12 -21).
10. Plaintiff did not submit any grievances about the conditions of his Special Management cell until after he was out of Special Management lockdown and had already received toilet paper (Plaintiff's Dep., p. 33, l. 22 - p. 35, l. 5).
11. Plaintiff received toilet paper after the 2 - 5 days on Special Management lockdown (Plaintiff's Dep., p. 34, l. 19 - 23).
12. Plaintiff's allegations against defendant Adams are that he wrote her "numerous letters" going back to Joliet (Plaintiff's Dep., p. 36, l. 14 - p. 37, l. 4).
13. Plaintiff has never met defendant Adams, and she never personally observed the conditions of his cell in Special Management in April, 2008 (Plaintiff's Dep., p. 37, l. 5 -17).
14. Plaintiff did not direct any correspondence to defendant Adams about the allegations of April 2008 until after he had already received toilet paper (Plaintiff's Dep., p. 37, l. 18 -22).
15. Defendant Adams never responded personally to Plaintiff's many letters, but he has received responses from Laura Wickman Jones (Plaintiff's Dep., p. 36, l. 14 - p. 38, l.15).
16. Plaintiff does not have any claims against defendants Heller or Orrill regarding the April, 2008 incident (Plaintiff's Dep., p. 38, l. 16 - 19).
17. Plaintiff does not allege inappropriate force was used against him on April 21, 2008 (Plaintiff's Dep., p. 45, l. 23 - p. 46, l. 2).
18. Plaintiff alleges he had no toilet paper in his Special Management cell on October 16, 2008 (Plaintiff's Dep., p. 47).
19. On October 16, 2008, Plaintiff saw 10 - 15 or 20 STAs running by him, followed by defendant McAdory. Plaintiff made the comment, "the goon squad going by . . .and I said look at the master leader." (Plaintiff's Dep., pp. 48 - 51, l. 12).
20. Plaintiff was told to cuff up on October 16, 2008 by security staff (Plaintiff's Dep., p. 49,l. 8 - p. 50, l. 3).
21. Plaintiff does not know whether McAdory heard the "goon squad" or "leader" remark (Plaintiff's Dep., p. 51, l. 13 - l. 17).
22. Plaintiff admits Heller and Orrill did not use "excessive force" on him while walking him to the Special Management Unit (Plaintiff's Dep., p. 56, l. 24 - p. p. 57, l. 1).
23. When first placed in the Special Management cell by Heller and Orrill, Plaintiff did not complain about the lack of toilet paper (Plaintiff's Dep., p. 58, l. 10 - 17).
24. Plaintiff does not know who he alleges slammed him against the wall and struck him in the kidney area in the Special Management cell (Plaintiff's Dep., p. 58, l. 18 - p. 24).
25. McAdory came down to the cell with 10 or 20 STAs after Orrill and Heller left the cell, closed the door, and some time had passed (Plaintiff's Dep., p. 61, l. 1 - 16).
26. Plaintiff admits he curses at staff when he feels he is treated disrespectfully and admits cursing at staff both before and after Orrill and Heller left his cell in Special Management ...