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Birks v. Dart

United States District Court, N.D. Illinois, Eastern Division

April 4, 2014

MICHAEL BIRKS, Plaintiff,
v.
TOM J. DART, JOHN DOES, MS. HOPE, VALERIE LOPEZ, and SUPERINTENDENT REYES, Defendants.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, District Judge.

Plaintiff, Michael Birks, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges a claim for unconstitutional conditions of confinement due to substances in the shower area in his division at Cook County Jail. The remaining Defendants, Officer Hope, Officer Lopez, and Superintendent Reyes, have moved for summary judgment. For the reasons stated herein, the Court grants Defendants' motion.

Local Rule 56.1

Motions for summary judgment in the Northern District of Illinois are governed by Local Rule ("LR") 56.1. "The obligation set forth in Local Rule 56.1 is not a mere formality.' Rather, [i]t follows from the obligation imposed by Fed.R.Civ.P. 56(e) on the party opposing summary judgment to identify specific facts that establish a genuine issue for trial.'" Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 924 (7th Cir. 1994)). The Seventh Circuit has "routinely held that a district court may strictly enforce compliance with its local rules regarding summary judgment motions." Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th Cir. 2011) (quotation omitted).

Local Rule 56.1(b)(3)(B) requires the nonmovant to file a "concise response to the movant's statement that shall contain... a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." See LR 56.1(b)(3)(B). Local Rule 56.1(b)(3)(C) also "requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate statement... of any additional facts that require the denial of summary judgment.'" Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir. 2005) (quoting LR 56.1).

The failure of a nonmoving party to abide by the rule's requirements carries significant consequences. "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." LR 56.1(b)(3); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("We have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission."). "This rule may be the most important litigation rule outside statutes of limitation because the consequences of failing to satisfy its requirements are so dire." Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000).

To provide pro se litigants with additional procedural protections, LR 56.2 requires movants to provide a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment." That notice was provided to the Plaintiff and clearly explained the requirements of the Local Rules and warned Plaintiff that a party's failure to controvert the facts as set forth in the moving party's statement results in those facts being deemed admitted. (Doc. No. 43.)

Despite receiving the admonitions and having multiple opportunities to respond, Plaintiff failed to file a response to each numbered paragraph in Defendants' statement of uncontested facts. Instead, Plaintiff filed a general response, disputing that summary judgment should be granted. Accordingly, Defendants' statement of uncontested facts is deemed admitted. Because Plaintiff is proceeding pro se, however, the Court will consider the factual assertions he does make in his response, but only to the extent that he could properly testify about the matters asserted at trial - that is, only with respect to those facts within Plaintiff's personal knowledge. See Fed.R.Evid. 602.

Factual Background

Plaintiff started his detention at Cook County Jail on May 30, 2012. (Defs.' 56.1(a)(3) Statement ¶ 1.) On June 16, 2012, he was transferred to Division I, Tier D4. ( Id. ¶ 5.) On that day, Plaintiff noticed a clogged shower drain. ( Id. ¶ 7.) The shower area in Tier D4 has one drain. ( Id. ¶ 8.) On June 19, 2012, Plaintiff stuck his head into the shower area and observed bubbles coming up from the center drain. ( Id. ¶ 9.) Although Plaintiff believed that feces were coming up from the shower drain, he never physically saw any feces. ( Id. ¶ 10.) After June 19, 2012, Plaintiff never went back into the shower area. ( Id. ¶ 11.) However, he avers that he observed "signs of bubbles and black substances" in the shower drain on several occasions. (Pl.'s Resp. Defs.' Mot. Summ. J. 1.) Plaintiff's cellmate wore a colostomy bag that caused their cell to smell like feces. (Defs.' 56.1(a)(3) Statement ¶ 13.)

Plaintiff also noticed water from the shower area enter the dayroom. ( Id. ¶ 14.) The water, however, never entered Plaintiff's cell. ( Id. ) When the shower water entered the dayroom, it was cleaned by the detainees that same day. ( Id. ¶ 15.)

Although Plaintiff believes he saw feces coming from the shower drain, the drain lines in Cook County Jail for the showers are separate from the drain lines from the toilets. ( Id. ¶ 16.) If a shower drain is clogged, the only water that could come back up through the drain would be the water that passed through the drain. ( Id. ¶ 17.) Waste within the toilet's sanitary drain cannot discharge from the shower drain. ( Id. )

Officer Lopez was the Work Order Coordinator of Division I in 2012. ( Id. ¶ 18.) In that capacity, Officer Lopez prepared work orders for any repairs that needed to be made in Division I and submitted those work orders to the Cook County Department of Facilities Management. ( Id. ¶ 19.) Facilities Management is responsible for performing any repairs at Cook County Jail. ( Id. ¶ 20.) Officer Lopez is not responsible for making any repairs at Cook County Jail or determining the order in which work orders are completed by Facilities Management. ( Id. ¶ 21.)

Work orders were prepared for clogged shower drains in Division I, Tier D4, on May 31, 2012, July 2, 2012, and July 17, 2012. ( Id. ¶ 22.) These work orders were resolved by Facilities Management on June 1, 2012, July 5, 2012, and January 21, 2013, respectively. ( Id. ) The work order submitted on July 17, 2012, was deemed not to have been an emergency, and no immediate corrective action was taken at that time. ( Id. at ¶ 23.) Facilities Management recorded this work order as "closed" during a preventative maintenance inspection. ...


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