TUAN C. FIELDS, SR., Plaintiff,
J. MILLAN and MISTY THOMPSON, Defendants.
MEMORANDUM AND ORDER
G. PATRICK MURPHY United States District Judge
Before the Court is Defendants’ motion for summary judgment (Doc. 32) to which Plaintiff has responded. Defendants’ motion is GRANTED and Judgment in this case will enter for Defendants.
On September 22, 2011, Plaintiff filed a Complaint alleging that Defendant Jay McMillan, a correctional officer, deliberately shot him – he states that he was hit with buckshot pellets in his arm and nose – while he was an inmate at the Menard Correctional Center. Plaintiff further alleges that Misty Thompson, a nurse, ignored his request for medical treatment. Plaintiff has two claims: excessive force against Defendant McMillan and deliberate indifference to a serious medical need against Defendant Thompson.
The evidence is that on October 10, 2010, a fight broke out between an inmate, Sartin, and two correctional officers, Edwards and Eovaldi, in front of inmate Sartin’s cell on the 5 Gallery in the East Cell House at the Menard Correctional Center. At the time, Defendant McMillan was on the catwalk of the East Cell House and he verbally directed inmate Sartin to stop fighting. When Sartin refused the order and continued to fight, Defendant McMillan fired a warning shot onto a “shot board” on the 9 Gallery in the East Cell House. This shot board is located between cells 920 and 921. Plaintiff was housed in cell 922. Plaintiff states that he was struck in the nose and arm by buckshot. After being struck, Plaintiff caught the attention of Defendant Thompson who was passing by his cell in order to attend the medical needs of another inmate. Plaintiff showed Defendant Thompson his injuries; and, according to Plaintiff, she merely instructed him to “wash it off.”
In describing the incident on October 10, 2010, Plaintiff testified that:
Well, after returning from chow, after returning from chow October 10, 2010, after entering the cell, I guess a fight had broken out on 5 Gallery. I’m on 9 Gallery, 922. I guess a fight had broken out. Maybe some officers had tried to break it up or what have you, or maybe some officers was involved. I don’t know, ‘cause I’m not on 5 Gallery; I was on 9 Gallery.
So the officer – the scuffle was going on. I’m inside my cell. That has nothing to do with me. Next thing you know, I hear a gun go off. While I was standing in the cell, talking to my cellie, I hear a gun go off, and next thing you know, I’m hit by fragments and pellets.
(Doc. 32-2, Tuan Fields Deposition pp. 13-14). Plaintiff could not see the fight and did not know who was involved; but, he did see Defendant McMillan shoot in his peripheral vision (Id. at 26, 32). While Plaintiff believes that the shot was fired because of the altercation on 5 Gallery, (Id. at 33), Plaintiff nonetheless believes that Defendant McMillan shot at his cell deliberately:
Q. Okay. Do you think he was trying to shoot at the shot board and just missed? A. No. Because my cell, my cell is before, before the – like the target board it somewhere located by 920 and 921. Q. How far is that from your cell? A. Uh, I don’t know. Maybe five, six feet.
Q. So pretty close, though.
A. No, it’s not pretty close. It’s three cells difference. So it’s not like it’s close to my cell at all. He could’ve shot that target board as they’d previously done. Then those buckshots go or those fragments go to 920 and 919 or that cell. All the fragments was in 921, 922, 923 . . .
(Id. pp. 28-29). Inmate John E. Searles, who was confined to cell 924 stated that Defendant McMillan “was pointing his gun towards 9 Gallery cells” and “was not aiming the gun at the shot board” (Doc. 39, John E. Searles Affidavit ¶¶ 6-7). Another inmate, Michael Jackson, M10479, stated in his affidavit that “[t]he officer yelled get on the ground and fired toward my cell [#922] at a target board, on 9 gallery cell 22 Easthouse” (Doc. 39, Michael ...