The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Thursday, 10 November, 2011 10:58:27 AM
Clerk, U.S. District Court, ILCD
Plaintiff, proceeding pro se, is a pretrial detainee at the Sangamon County Jail. He pursues a failure-to-protect claim arising from an assault against him by two other inmates at the Jail. Now before this Court is Defendants' motion for summary judgment. For the reasons below, the motion will be granted as to Defendants Johnston and Bouvet, and denied as to the remaining Defendants. The case will be set for trial, but the remaining Defendants will be given an opportunity to file a supplemental summary judgment motion.
SUMMARY JUDGMENT STANDARD
"The court shall grant summary judgment 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). A movant may demonstrate the absence of a material dispute through specific cites to admissible evidence, or by showing that the non-movant "cannot produce admissible evidence to support the [material] fact." Fed. R. Civ. P. 56(c)(B). If the movant clears this hurdle, the non-movant may not simply rest on his or her allegations in the complaint, but instead must point to admissible evidence in the record to show that a genuine dispute exists.
Id.; Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011). "In a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, evidence is viewed in the light most favorable to the non-movant, with material factual disputes resolved in the non-movant's favor. Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists when a reasonable juror could find for the non-movant. Id.
On or about February 20, 2009, Plaintiff was arrested on charges of predatory criminal sexual assault and detained in the Sangamon County Jail. He remains there, with his trial currently scheduled for December 5, 2011, according to the docket sheet on the Sangamon County Circuit Clerk's website.
Plaintiff was initially placed in the D block of the Jail. In November, 2009, he was threatened by five other inmates on D block: Mujahid Mateen, Rodney Johnson, Keith Smith, Matthew Edwards, and Jamil Hamilton. These five threatened to "jump" Plaintiff if he did not move off block D. (Plaintiff's Dep., p. 14, d/e 59-1). Plaintiff believes that their animosity stemmed from somehow discovering the nature of the criminal charges lodged against Plaintiff. Plaintiff tried to get word to his girlfriend about the threats so that she would call the Jail.
On November 18, 2009, Plaintiff was called out of D Block into the hall to discuss his fears with Defendant Officer Candace Cain. Plaintiff told Cain about the threats, specifically naming the individuals who were threatening him. That day he chose to go to segregation so that he could be "reclassified" and placed in a different cell block. Plaintiff believes that an Officer Ball, who is not a defendant, initiated the paperwork to make that change, but there is no paperwork in the record, nor any affidavit from Ball. Nor does Cain offer an affidavit.
Plaintiff contends that Defendants Kirby and Fox are responsible for reclassifying detainees. According to Plaintiff, Kirby came by Plaintiff's segregation cell on November 19, 2009, and Plaintiff told Kirby about the threats, specifically identifying the name of each of the five inmates. Neither Defendant Kirby nor Fix provides an affidavit. According to Plaintiff, on or about November 23rd, as a back-up to ensure his protection, he listed his five enemies on an inmate request form and placed the form in his door for pick up. Plaintiff testified that he saw Defendant Johnston walk by on his check of the cells, retrieve the form, look at it, and walk off with it. (Plaintiff's Dep., p. 45, d/e 59-1). Johnston avers that he has no recollection of this, but he also avers that, if he had been handed such a request, he would have forwarded the request to his supervisor. (Johnston Aff. ¶¶ 3-4, d/e 59-2). About three ...