The opinion of the court was delivered by: Judge Elaine E. Bucklo
MEMORANDUM OPINION AND ORDER
Plaintiff, Seneca Smith (also known as Roger Williams), is incarcerated at Stateville Correctional Center. In January 2011, he initiated this 42 U.S.C. § 1983 civil rights action against five officers and officials at the Cook County Jail concerning a fire that occurred in Plaintiff's cell while he was confined there. According to Plaintiff, on April 3, 2009, his cellmate set fire to a blanket in the cell; Cook County Jail Officers Printiss Jones and Russell intentionally delayed putting the fire out, letting Plaintiff out of his cell, and calling for help. Former Executive Director of the Cook County Department of Corrections Salvador Godinez allegedly refused to better equip cells with fire alarms and sprinklers and refused to conduct fire drills for inmates. On initial review, this Court allowed Plaintiff to proceed against Defendants Jones, Russell, and Godinez, but dismissed his claims against three other jail officials.
Since Plaintiff's filing of this suit, Officer Russell passed away in a motorcycle accident. A Suggestion of Death was filed on September 21, 2011. No Defendant has been substituted. The Court thus dismisses Russell as Defendant pursuant to Fed. R. Civ. P. 25.
Jones and Godinez*fn1 , the two remaining Defendants, have filed a motion for summary judgment. Plaintiff has responded. For the following reasons, the Court grants in part and denies in part their motion. Summary judgment is granted for Defendant Godinez and the claims against him are dismissed. Summary judgment for Defendant Jones is denied, and Plaintiff may proceed with his claim of deliberate indifference to his safety against Jones.
This 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). In determining the existence of a genuine issue of material fact, this Court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
The party asserting that a fact is not genuinely disputed, "must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Rule 56(c)(1)(A). If the moving party meets his burden of showing that no issue of material fact exists, the non-moving party must "go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact." 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); see also Carrroll v. Merrill Lynch, __ F.3d __, 2012 WL 4875456 at *3 (7th Cir. Oct. 16, 2012). 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. See Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596, 598-99 (7th Cir. 2000).
When addressing a summary judgment motion, this 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). Because Plaintiff is proceeding pro se, the Defendants served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" which explained to Plaintiff how to respond to the Defendants' summary judgment motion and Rule 56.1 Statement, as well as the consequences of failing to respond properly. See N.D. Ill. Local Rule 56.2.
This Court may consider a Rule 56.1 factual statement that is supported properly by the record to be true if the non-moving party either does not respond to it, offers only an evasive denial, or does not adequately cite to the record for his response. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006); Cichon v. Exelon Generation Co., L/L.C., 401 F.3d 803, 809-10 (7th Cir. 2005); Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997); see also Rule 56(e).
In the present case, the Defendants filed a Rule 56.1 Statement and notified Plaintiff of his need to respond. (R. 65, Defs.' Rule 56.1 Statement of Facts ("SOF") and R. 67, Notice to Pro Se Litigant.) Plaintiff has responded to Defendants' Rule 56.1 Statement of Facts, has submitted a list of disputed facts, and has submitted declarations from himself and three other witnesses. (R. 73, 74, 76.) Plaintiff accepts many of Defendants' factual statements as true. As for the statements to which he objects, he provides additional information with citations mainly to the declarations he submitted. (R. 73, Pl.'s Response.) Defendants seek to strike Plaintiff's responses and disputed facts that are based upon his and inmate Robert Barnes' declarations, contending that Plaintiff's declaration contradicts his deposition testimony and that jail records indicate that Barnes had not returned from his trip to court earlier that day and thus was not on Plaintiff's tier at the time of the fire. (R. 80.) Plaintiff has responded to the motion, explaining how his declaration statements do not contradict his deposition testimony and stating that Barnes was on the tier at the time of the fire.
A plaintiff may not create "'sham' issues of fact with affidavits that contradict their prior depositions." Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. 2005). "Consequently, where a deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Velez v. City of Chicago, 442 F.3d 1043, 1049 (7th Cir. 2006) (internal quotation marks and citation omitted). To the extent Plaintiff's declaration contradicts his deposition, the Court will look only to the deposition testimony. However, the Court will consider Plaintiff's declaration to the extent it provides information not addressed in Plaintiff's deposition. As for Barnes' declaration, the record is unclear as to whether the declaration was fabricated. Regardless whether Barnes was on the tier at the time, it is unnecessary to consider his declaration to decide the summary judgment motion.
Accordingly, the Court grants Defendants' motion to strike, but only for Plaintiff's declaration statements that contradict his deposition testimony. It appears that such a conflict exists only with the height of the flames at the time Plaintiff awoke (Plaintiff stated in his deposition that the fire was dying down and flames were not that tall, but states in his declaration that the flames were three feet high). Defendants' motion to strike is denied with respect to Plaintiff's other declaration statements. The motion to strike Barnes' declaration is also denied; however, the Court will not consider the declaration as it provides no material information not already established by other evidence. The Court notes that, if Barnes' declaration is fabricated, Defendants may seek appropriate sanctions under Fed. R. Civ. P. 11. With the above standards in mind, the Court addresses the facts of this case.
In April 2009, Plaintiff was a pretrial detainee confined to a cell in Tier 2-E of Division 9 at the Cook County Jail. (R. 63, Defs.' SOF ¶ 8.) Division 9 is a segregation area of the jail, which houses inmates who have received disciplinary tickets. (Id. at ¶ 9.) Each tier contains two levels (decks) of 11 cells; Plaintiff's cell was on an upper level. (Id. at ¶ 10.) Quinton Green was Plaintiff's cellmate. (Id. at ¶ 12.) On April 3, 2009, Defendant Jones was working as a correctional officer in Division 9 Tier 2-E on the 3 p.m. to 11 p.m. shift. (Id. at ¶ 13.) On the evening of April 3, 2009, Plaintiff was awakened by the presence of smoke in his cell. (Id. at ¶ 14; R. 73, Pl.'s SOF ¶ 14.) A blanket was burning, and Plaintiff saw his cellmate trying to put the fire out. (R. 63, Exh. C, Pl.'s Depo. at 93.) Plaintiff stated in his deposition that "it was in the chuckhole" and he saw his cellmate "move it from the front of the" cell. (Id.) At the time Plaintiff awoke, the "flames w[ere] not that tall . . . It was just a ton of smoke" and Plaintiff was "choking, couldn't breathe, and could barely see." (Id.) Plaintiff "started hollering for help." (Id. at 94.) Plaintiff stated that he saw Officers Jones and ...