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Glenn Verser (N-72074 v. Kenneth Hubbard

May 9, 2012

GLENN VERSER (N-72074), PLAINTIFF,
v.
KENNETH HUBBARD, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Judge Elaine E. Bucklo

MEMORANDUM OPINION AND ORDER

Plaintiff Glenn Verser, a Stateville Correctional Center inmate, filed this 42 U.S.C.§ 1983 suit against Stateville Correctional Center Officers Kenneth Hubbard, Angela Smith, Clarence Wright, Glen Malone, Darla Michel, Dr. Partha Ghosh, and Dr. Liping Zhang. Plaintiff alleges the following: Officers Hubbard, Smith, and Wright either applied handcuffs too tightly or refused to loosen them when escorting him to Mt. Sterling, Illinois for a court hearing on January 29, 2009. Dr. Zhang subsequently issued Plaintiff a medical permit prohibiting single cuffing for six months. Drs. Zhang and Ghosh did not adequately treat Plaintiff for his injury, and Officers Malone and Michel single cuffed Plaintiff contrary to the permit when escorting him in March 2009 for a deposition in another area of the prison.

On June 1, 2011, this court denied a motion to dismiss filed by the officers, but granted the motion to dismiss filed by Dr. Ghosh, upon determining that his only involvement was the refusal to refer Plaintiff to a nerve specialist for his hand. Dr. Zhang has not entered an appearance. The Stateville officers ("Defendants") seek summary judgment. (R. 70.) Plaintiff has filed a response, to which Defendants have replied. (R. 77 and 78.) For the following reasons, the court grants in part and denies in part the motion. Defendants Hubbard, Smith, and Wright are dismissed, but Plaintiff may proceed against Defendants Michel and Malone.

I. SUMMARY JUDGMENT STANDARD

A. Summary Judgment under Federal Rule of Civil Procedure 56

"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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Indiana, Inc., 211 F.3d 392, 396 (7th Cir. 2000). In determining the existence of a genuine issue of material fact, the court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.

The movant bears the initial burden of demonstrating that there is no genuine issue of material fact and that judgment based upon the uncontested facts is warranted. See Celotex, 477 U.S. at 325. If the movant meets this burden, the nonmoving party must "go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if a reasonable finder of fact could return a decision for the nonmoving party based upon the record. Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596 (7th Cir. 2000).

B. Northern District of Illinois Local Rule 56.1 Statements

When addressing summary judgment motions, the court derives the background facts from the parties' Local Rule 56.1 Statements, which assist the court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Specifically, Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). The nonmoving party must admit or deny each factual statement proffered by the moving party and concisely designate any material facts that establish a genuine dispute for trial. Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005).

Because Plaintiff is a pro se litigant, Defendants served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by N.D. Ill. Local Rule 56.2. (R. 71.) The notice explains the consequences of failing to properly respond to a motion for summary judgment and to a statement of uncontested material facts under Fed. R. Civ. P. 56(e) and Local Rule 56.1. (Id.)

A court may consider to be true any uncontested fact in the movant's Rule 56.1 Statement that is not addressed by the non-movant. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). Also, a court may disregard responses that do not properly cite to the record. Cichon v. Exelon Generation Co.,, 401 F.3d 803, 809-10 (7th Cir. 2005); Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997). "[E]vasive denials that do not fairly meet the substance of the material facts asserted" do not satisfy a litigant's obligation to properly respond to a Rule 56.1 factual statement. Bordelon, 233 F.3d at 528. Although pro se pleadings are liberally construed, Plaintiff's pro se status does not excuse him from complying with these rules. Greer v. Board of Ed. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001); see also McNeil v. United States, 508 U.S. 106, 113 (1993).

With respect to the instant motion for summary judgment, Defendants filed a Rule 56.1 Statement of Uncontested Facts ("SOF"), attaching as exhibits Plaintiff's deposition, his medical records, and declarations from Officers Hubbard, Michel, and Malone. (R. 73.) Plaintiff responded to Defendants' summary judgment motion and to their Statement of Uncontested Facts. (See R. 77, Pl's "Disputes Defendants' Statement of Facts" is construed as his response to Defs.' SOF.) Included with Plaintiff's response are statements from Plaintiff and fellow inmate Michael Edgleston, as well as a copy of Defendants' responses to interrogatories. (R. 77, Exhs. A, B, C.) Plaintiff admits to all but five of Defendants' Statement of Facts. (R. 77, Pl.'s Response to Defs.' SOF.) Accordingly, the court may consider to be true Defendants' Statement of Facts to which Plaintiff does not object. The court may also refer to the record for contested facts and for facts not covered by Defendants' Statement of Facts, and may also consider exhibits attached to the parties' summary judgment pleadings, including Plaintiff's deposition and the declarations and statements by the parties and witnesses. See 28 U.S.C. § 1746; Walton v. Van Ru Credit Corp., No. 10 C 344, 2011 WL 6016232 at *6 (N.D. Ill. Dec. 2, 2011) (Mason, M.J.) (unsworn declarations and statements may be admissible under § 1746 where the declarant swears under the penalty of perjury that the statements are true). With these standards in mind, the court turns to the facts of this case.

II. FACTS

On January 29, 2009, Plaintiff was being transported from Stateville by Officers Hubbard and Smith to a hearing in Mt. Sterling, Illinois. (R. 73, Defs' SOF ¶ 9.) Stateville policy and procedures require that inmates be restrained anytime they leave a fully secured area of the prison. (R. 73, Defs. SOF ¶ 14; Exh. C, Declaration of Hubbard.) Plaintiff had never had a problem with being handcuffed before. (R. 73, Exh. E, Pl. Depo. at 9.) Plaintiff's restraints on January 29, 2009, included a "black box," ...


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