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Ibarra v. Bailey

United States District Court, Seventh Circuit

December 2, 2013

JOSE IBARRA, Plaintiff,


MICHAEL P. McCUSKEY, District Judge.

This case is before the court for ruling on the Motion for Summary Judgment (#99) filed by Defendants James Bailey, Ronald Derrickson and Larry Gustin. This court has carefully reviewed the arguments of the parties and the documents filed by the parties. Following this careful and thorough review, Defendants' Motion for Summary Judgment (#99) is GRANTED.


Plaintiff, Jose Ibarra, grew up and went to school in Mexico; he came to the United States in 2005 or 2006. Plaintiff was convicted and sentenced to the Illinois Department of Corrections (IDOC) in 2009. Plaintiff only knows a few words of English and has difficulty communicating with correctional staff. Sometimes other inmates interpret for him.

In August 2011, Plaintiff was transferred to Danville Correctional Center. On November 15, 2011, another inmate, LaShawn James, [2] was moved into Plaintiff's cell. Plaintiff had a low bunk permit at the time due to his medical issues. Plaintiff and James had issues over the bed because James wanted the low bunk. James did not speak Spanish, but would bring another Mexican in to interpret. At his deposition, Plaintiff testified that James told Plaintiff that, if Plaintiff did not give him the bed, he was going to fight Plaintiff.

Plaintiff testified that James woke him up on November 18 or 19 at around 11:00 p.m. and pulled him, saying he (James) wanted the bed. Plaintiff testified that he asked James to wait until the next day so he could talk to a prison official and James said that was fine. Plaintiff testified that he reported the issue to three officials the next day, one of whom was Defendant Bailey. Plaintiff testified that another inmate, Vincent Guerrero, came and joined in the conversation with the correctional officers. According to Plaintiff, he told Bailey everything that was going on with James. Plaintiff testified that Guerrero told Bailey that James was not a good person and Bailey responded that he knew who James was and that James "has a problem." In his responses to Plaintiff's First Set of Interrogatories, signed under oath, Bailey stated that he recalled speaking to Plaintiff through an interpreter about Plaintiff's request for a cell move. Bailey stated that he recalled Plaintiff telling him that Plaintiff did not get along with his cellmate, but Bailey did not get the sense that there was any threat of violence. Bailey referred Plaintiff to the kitchen to report his issues to Bailey's supervisor, Defendant Gustin.

Plaintiff testified that he went to the kitchen and explained the whole thing to Gustin through an interpreter named Gonzalez. According to Plaintiff, he told Gustin that "my cellmate had told me he wanted the bottom bunk and, if I didn't give it to him, he was going to hit me today." Plaintiff testified that Gustin said he would come and talk to Plaintiff after he was done there, but he never came. In his responses to Plaintiff's First Set of Interrogatories, signed under oath, Gustin stated that he recalled speaking with Plaintiff and an interpreter about a cell move. Gustin said that he told the inmates he would take the information and submit it to the Assignment Committee. According to Gustin, it is up to the Assignment Committee to determine whether an inmate meets the criteria for a cell move. Gustin stated that he contacted the Assignment Committee to request a cell move for Plaintiff but does not recall whether he received a response. He also stated that he is not normally informed of the Assignment Committee's decision.

Plaintiff testified that, on December 14, 2011, he spoke with Defendant Derrickson. Plaintiff testified that Derrickson brought an interpreter, inmate Jose Mundo, to speak to Plaintiff. In his Affidavit, Plaintiff stated that he went to the control area for help because James was threatening to beat him. Plaintiff testified that he asked Derrickson for help and told Derrickson he was being threatened that he was going to get beaten up. In his Affidavit, Plaintiff stated that Derrickson called his cellmate James "who negated all." Plaintiff testified that Derrickson said he did not have the authority to move Plaintiff and had to speak to his supervisor, Gustin, who was watching over dietary during lunch. In his responses to Plaintiff's First Set of Interrogatories, signed under oath, Derrickson stated that both inmates told him they would be fine waiting to speak with Gustin and he understood that there was no urgency in moving them. In his Affidavit, Plaintiff stated that Derrickson told him to go to his cell and, if something happened, press the emergency door button.

After lunch that day, there was an altercation in Plaintiff's cell. Plaintiff testified that he was lying down and James hit him. In his Affidavit, Plaintiff stated that he was resting and "felt a strong stroke" on his head. Plaintiff described how James assaulted him and stated that he put his hands in front of his face to try and shield himself from James' hits. Plaintiff stated that, when Derrickson came to the cell, he was vomiting blood and had a lot of injuries in his head, face and stomach. Plaintiff said he was taken by ambulance to a hospital outside of the prison.

Plaintiff received a disciplinary report because of the incident which occurred on December 14, 2011. The Adjustment Committee issued a Final Summary Report and found Plaintiff guilty of assaulting James. The Adjustment Committee found that Plaintiff and James were "engaged in a verbal confrontation that escalated into a physical confrontation, when I/M Ibarra wrapped his hand with a brown extension cord and struck I/M James in the mouth with a closed fisted blow which dislodged one of I/M James' teeth." The Adjustment Committee also found that Plaintiff removed an ink pen from his pants pocket and began to attempt to strike James with the ink pen and Plaintiff and James then began to struggle with one another. The Report stated that James had stab wounds from an altered pen and Plaintiff admitted he does alter his pens. Plaintiff was disciplined with: 1 year C Grade status; 1 year segregation; revocation of good conduct credits of one year; disciplinary transfer; restitution; and 1 year commissary restriction. The Adjustment Committee findings have not been overturned.


On May 8, 2012, Plaintiff filed a pro se Complaint (#1), brought pursuant to 42 U.S.C. ยง 1983, against Warden Keith O. Anglin, John Myers, Larry Gustin, Judy Oakley, Joseph T. Smith, James Bailey, Correctional Officer Bradwer, Dr. Tweedy, Jaime Hernandez and Ronald Derrickson. Plaintiff alleged that, while he was incarcerated at Danville Correctional Center, he complained to various Defendants that his cellmate was threatening to hurt him. Plaintiff alleged that he asked to be separated from the cellmate, but nothing was done to protect him. Plaintiff alleged that he was attacked and injured by his cellmate on December 14, 2011. Plaintiff alleged that he suffered a broken nose as well as injuries to his eyes, mouth and head. Plaintiff alleged that Defendants Anglin, Gustin, Bailey, Bradwer, Tweedy, Hernandez and Derrickson were deliberately indifferent to a serious risk of harm, in violation of his constitutional rights. Plaintiff also alleged that Defendants Myers, Oakley and Smith subjected him to cruel and unusual punishment and denied him his right to due process because there were flaws in the administrative disciplinary procedure whereby he was found guilty of assaulting his cellmate on December 14, 2011.

On June 20, 2012, this court held a merit review hearing and ordered that Plaintiff's case could proceed. Subsequently, all Defendants except Smith and Bradwer waived service. On October 9, 2012, Defendants Anglin, Bailey, Derrickson, Gustin, Hernandez, Myers and Oakley filed a Motion to Dismiss (#48) and a Memorandum in Support (#49). Defendants argued that Plaintiff's Complaint was deficient under the federal pleading standard as to any claims against Defendants Anglin, Gustin and Hernandez. Defendants also argued that Plaintiff failed to state a claim upon which relief can be granted for a violation of due process. Defendants noted that, to the extent that Plaintiff was challenging the finding of guilt by the Adjustment Committee or the discipline imposed, such a claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994). In addition, Defendants argued that Plaintiff was precluded from suing Defendants in their official capacities and was barred from seeking the injunctive relief he requested.

On October 19, 2012, Plaintiff filed a pro se Response to Motion to Dismiss (#54) and asked this court to deny Defendants' Motion. On October 30, 2012, Plaintiff filed a ...

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