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Joseph Pettis v. Jerome Combs Detention Center

December 16, 2011

JOSEPH PETTIS, PLAINTIFF,
v.
JEROME COMBS DETENTION CENTER, ET AL., DEFENDANTS.



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

E-FILED Friday, 16 December, 2011 03:08:00 PM Clerk, U.S. District Court, ILCD

MEMORANDUM ORDER AND OPINION

Before the Court are Defendants' Partial Motion for Summary Judgment [52], Plaintiff's Response [56] and Defendants' Reply [57].

Background

Plaintiff Joseph Pettis filed a pro se Amended Complaint pursuant to 42 U.S.C. §1983, seeking money damages for constitutional injuries that he allegedly incurred while detained at Jerome Combs Detention Center ("JCDC") against Defendants Chief Michael Downey, Asst. Chief Chad Kolitwenzew, Lt. Kent Smith, Cpl. Scott Brazill, Officer Matthew Meehan, Officer Emerson Rushing, Officer Antonio Emery, Sgt. Todd Schloendorf, Lt. John Timm, Cpl. Richard Ball, Officer Adam Graves, Officer Eric Senesac, Officer Jeremy Most, Officer John Juergens, Officer Joshua Berns, Officer Nicholas Riley, Officer Kyle Vance, Officer Tyson Nolan, Officer Adam Jackson, Officer Harry O'Neil, Officer Charles Hertz, Officer Miguel Ayala, Officer Lazarus Hughes, and Officer Robert Smith. Plaintiff was allowed to proceed on the following claims: (1) that he was subjected to unconstitutional strip searches, (2) that he was subjected to an excessive use of force and a failure to protect on June 23, 2009 against Cpl. Brazill and Ofcs. Meehan, Smith, Emery and Rushing, and (3) that he was denied visitation and stamps and envelopes, in violation of his First Amendment rights. This Court dismissed all other claims presented by Plaintiff in his Amended Complaint. All Defendants now move for summary judgment on all claims except the excessive use of force claim, that is brought against Defendants Scott Brazille, Matthew Meehan, Robert Smith, Antonio Emery and Emerson Rushing.

Standard

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). "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.

"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). "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).

Facts*fn1

During the relevant time period, Plaintiff was detained at JCDC. (Downey Affidavit, ¶ 4, Ex. A and Plaintiff's Dep., p. 9, Ex. B). Defendants were employed by the Kankakee County Sheriff's Office and worked at JCDC. (Ex. A, Downey Affidavit, ¶ 5). In February 2009, Plaintiff Joseph Pettis was a pretrial detainee at the Cook County Jail. On February 9, 2009, following a gang riot at the Cook County Jail, Plaintiff was transferred to JCDC with records of a severe and violent behavioral history. (Ex. A, Downey Affidavit, ¶ 3) Chief Downey was aware of Plaintiff's severe behavioral history and thus housed him in administrative segregation for the safety of officers and other JCDC inmates. (Ex. A, Downey Affidavit, ¶ 6) While detained at the Cook County Department of Corrections, on January 8, 2007, and December 21, 2008, Plaintiff was twice found guilty of having a sharpened metal object, or shank, in his cell and received a punishment of 25 days and 30 days in segregation. (Ex. B, Plaintiff's Dep., pp. 11-12, 19-20) While detained at the Cook County Department of Corrections, on February 13, 2007, Plaintiff was found guilty of refusing a correctional officer's orders to return to his cell and received a punishment of 7 days in segregation. (Ex. B, Plaintiff's Dep., p. 13) While detained at the Cook County Department of Corrections, on May 12, 2007, Plaintiff was found guilty of being involved in a fight in the yard and received 10 days in segregation. (Ex. B, Plaintiff's Dep., p. 15) While detained at the Cook County Department of Corrections, on December 29, 2007, Plaintiff was found guilty of being involved in a fight in the day room and was sentenced to 3 days in segregation. (Ex. B, Plaintiff's Dep., pp. 15-16) While detained at the Cook County Department of Corrections, on April 7, 2008, Plaintiff flooded his cell at the Cook County jail and received 4 days in segregation as punishment. (Ex. B, Plaintiff's Dep., p. 17) While detained at the Cook County Department of Corrections, on September 13, 2008, Plaintiff was in an unauthorized area of the Cook County jail, and he received 5 days in segregation as punishment. (Ex. B, Plaintiff's Dep., p. 18) While detained at the Cook County Department of Corrections, on October 26, 2008, Plaintiff was found guilty of being out of his cell when he was not supposed to be and received 9 days in segregation. (Ex. B, Plaintiff's Dep., p. 18-19) While detained at the Cook County Department of Corrections, on January 22, 2009, Plaintiff was found guilty of being involved in a fight with another inmate and received 14 days in segregation. (Ex. B, Plaintiff's Dep., p. 20) While detained at the Cook County Department of Corrections, on January 28, 2009, Plaintiff was found guilty of being involved in a gang riot and received 25 days in segregation. (Ex. B, Plaintiff's Dep., p. 21, 23) During the gang riot, Plaintiff was stabbed 9 or 10 times and was a member and leader of the Four Corner Hustler's gang. (Ex.B, Plaintiff's Dep., p. 21-23)

When Plaintiff arrived at JCDC, because of his violent and gang related activities and severe disciplinary and behavioral history at Cook County, Chief Downey ordered Plaintiff, along with two other detainees transferred at the same time for similar problems, to be strip searched twice a day. (Ex. A, Downey Affidavit, ¶ 7) For Plaintiff's strip searches, he was required to disrobe, run his fingers around his mouth and gums, lift up his genitalia, bend over and spread his buttocks, cough three times, lift up his feet, wiggle his toes and fingers and face the wall until he heard his cell door slam. (Ex. B, Plaintiff's Dep., p. 28) Plaintiff claims that during the strip searches, correctional officers pointed Tasers and made derogatory comments about him. JCDC correctional officers did not touch Plaintiff during the strip searches. (Ex. B, Plaintiff's Dep., p. 28) Only male JCDC correctional officers conducted Plaintiff's strip searches. (Ex. B, Plaintiff's Dep., p. 29) Defendants deny that they made derogatory remarks to Plaintiff during the strip searches. However, for summary judgment purposes only, Defendants accept as true that such statements were made to Plaintiff. His strip searches were performed out of view of other inmates. (Ex. B, Plaintiff's Dep., p. 29)

Plaintiff submitted a grievance on June 24, 2009, claiming that JCDC officers used excessive force against him during an incident in his cell on June 23, 2009. (Ex., A, Downey Affidavit, ¶ 9). On June 23, 2009, Cpl. Brazill and Ofcs. Meehan, Smith, Emory and Rushing were involved in subduing Plaintiff in his cell. (Ex. B, Plaintiff's Dep., p. 37) Plaintiff claims the June 23 incident caused him to receive a bump on his head, Taser mark on his back, and a cut on his finger. (Ex. B, Plaintiff's Dep., p. 47-48) Plaintiff did not submit any other grievances, either before or after the June 24, 2009, grievance, relating to an excessive use of force or failure to protect. (Ex. A, Downey Affidavit, ¶ 8)

In order for an inmate to have visitors at JCDC, the inmate must fill out an "Inmate Visitation Form," which requires the inmate to list the name of each person who may come to visit. (Ex. A, Downey Affidavit, ¶ 10) This visitation form allows JCDC staff to review the list of potential visitors and ensure that there are no security risks involved in allowing these visits. It also ensures that the inmate wants to see persons claiming to be friends and family. (Ex. A, Downey Affidavit, ¶ 11) An inmate can obtain an Inmate Visitation Form by requesting one from a correctional officer or by requesting one through JCDC's grievance procedure. (Ex. A, Downey Affidavit, ¶ 12) Plaintiff submitted a grievance on April 23, 2009, asking about his access to visitation and mail. (Ex. A, Downey Affidavit, ¶ 13) The April 23, 2009, grievance was rejected by JCDC administration because it violated the JCDC grievance procedure, which requires a separate grievance for each complained of issue. (Ex. A, Downey Affidavit, ¶ 14) Plaintiff submitted another faulty grievance on June 27, 2009, which contained multiple requests that asked, in part, about his visitation rights. (Ex. A, Downey Affidavit, ¶ 15) Plaintiff received a visitation list sometime between June and August of 2009. (Ex. B, Plaintiff's Dep, pp. ...


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