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. Naming eight Cook County Jail officers and officials as Defendants in his amended 42 U.S.C. § 1983 complaint (his original complaint listed over 80 defendants), Plaintiff alleges that officers failed to protect him from an attack by other inmates on February 18, 2010. On initial review of the amended complaint, the Court allowed Plaintiff to proceed against Lieutenant Galan, Sergeant Thielen, Sergeant Atkins, Sergeant Thomas, Officer Walton, and Superintendent Hickerson ("Defendants"), and dismissed the other officers. Currently before this Court are Defendants' motion for summary judgment and their motion to strike statements in Plaintiff's declaration filed with his response because they contradict his deposition testimony. For the following reasons, the Court grants Defendants' motion to strike, grants in part and denies in part their motion for summary judgment, and dismisses the claims against Sergeant Thielen, Lieutenant Galan, and Superintendent Hickerson. Plaintiff may proceed with his claims against Sergeant Atkins, Sergeant
Thomas, and Officer Walton.
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 its burden of showing that no issue of material fact exists, the non-moving party must "go beyond the pleadings and by h[is] own affidavits, or by the depositions, answers to interrogatories, and admissions on file designate specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotation marks and citation omitted); see also Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006). 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 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, Defendants filed a Rule 56.1 Statement and provided notice to Plaintiff of his need to respond. (R. 85, Defs. Rule 56.1 Statement and R. 86, 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 his own declaration of facts upon which he bases his disputed facts. (R. 94, Pl. Rule 56.1 Statement.) Defendants seek to strike Plaintiff's declaration statements that he informed officers that he wanted to be placed in protective custody. (R. 99.) Defendants contend that these declaration statements contradict Plaintiff's deposition testimony that he never wanted protective custody and, thus, are allegedly Plaintiff's "attempt to create 'sham' issues of facts." (R. 99 at 2-5.)
Although plaintiffs may rely on their own statements where those statements are made in an affidavit or otherwise sworn to under penalty of perjury, see Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004), plaintiffs 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). The Court addresses the alleged contradiction after its discussion of the facts and evidence of this case.
In February 2010, Plaintiff was a pretrial detainee being housed in Division 10 at the Cook County Jail. (R. 85, Defs. Rule 56.1 Statement of Fact ("SOF") ¶ 8.) Plaintiff was a member of the Four Corner Hustlers, a Chicago gang that was affiliated with the Vice Lords, a larger Chicago gang. (Def. SOF at ¶ 9.) According to Plaintiff, kites ("messages ... from gang members") were being passed around from other gangs to harm or kill Plaintiff because he was thought to be a snitch. (R. 85, Exh. C, Pl.'s Depo. at 101.) As described by Plaintiff in his deposition,"the kites were saying, every time you see him, hurt him," (id. at 107.), and were being sent to members of the Almighty Vice Lords and the Finball (a term used by Plaintiff to refer to multiple gangs "Blackstones, Stones, [Latin] Kings").
(Id. at 102, 107.) Plaintiff estimated that kites directing to harm him were being sent by and received by "40% of the jail." (Id. at 108, 109.).
On February 18, 2010, Plaintiff was assaulted by another inmate in the barber shop of Division 10 of the jail. (Defs. SOF ¶ 10.) Sometime later, Plaintiff was being transferred from Division 10 to Division 9. (Id. at ¶ 11.) Division 9 houses inmates who have received a disciplinary ticket and have been sent to segregation, as well as, according to Plaintiff, inmates in general population and protective custody. (Id. at ¶ 12; R. 94, Pl. SOF at ¶ 12.) Detainees being transferred between divisions must be processed through Division 5, commonly known as the "RCDC" unit, an area of the jail that is separate from Divisions 9 and 10. (Defs. SOF ¶¶ 13, 24.)
Prior to going to the RCDC unit, Plaintiff was taken to the intake area of Division 10, where he saw Lieutenant Galan and Sergeant Thielen. (Id. at ¶ 14.) From the intake area of Division 10, he was taken to the RCDC unit of Division 5. Plaintiff does not remember the name of the officer who escorted him. (Defs. SOF ¶ 21; Pl. SOF ¶ 21.) The RCDC unit consists of five or six holding cells with either one or two officers. (Defs. SOF ¶ 22; Pl. SOF ¶ 22.) Officer Walton was working on the RCDC unit on February 18, 2010, and placed Plaintiff in bullpen three. (Id. at ¶¶ 25-27.) According to Plaintiff, he heard the other inmates in his bullpen whisper "that's the guy" or "that's our guy." (Id. at ¶¶ 34, 35; Pl. SOF ¶ 35.) Sometime later, Plaintiff saw Sergeant Thomas walking through the RCDC unit. At the time, no incident had occurred. (Defs. SOF ¶ 37.) Plaintiff stated in his deposition that he told Thomas that there were inmates in the bullpen who wanted to harm Plaintiff. According to Plaintiff, he asked Thomas to take him out of the bullpen but did not request to be placed in protective custody. (R. 85, Exh. C, Pl. Depo. at 111.)
Twenty to thirty minutes after Plaintiff was placed in the bullpen, he was attacked from his "blind side." (Defs. SOF ¶ 40.) Plaintiff states that he was knocked unconscious and he awoke while inmates were hitting his face, head, and body. (R. 94, Pl. Decl. ¶ 33.) Hearing noises from Plaintiff's bullpen, Officer Walton arrived, saw that Plaintiff was bleeding from his mouth and nose and had swelling under his right eye, and removed Plaintiff from his cell. (Defs. SOF ¶¶ 41-42; Pl. SOF ¶¶ 41-42.) Plaintiff identified five inmates as his attackers. Walton wrote disciplinary reports for each of them. (R. 85, Defs. SOF ¶ 44.) Walton also notified Sergeant Atkins of the incident. (Id. at ¶ 45.) Plaintiff was asked on video whether he wanted protective custody, which he refused. (Id. at ¶ 47.) Plaintiff stated in his deposition that he "never wanted [protective custody]." (R. 85, Exh. C, Pl. Depo. at 114.) Plaintiff's front tooth was ...