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Smerling v. Dever

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

August 7, 2014

Robert Smerling, Plaintiff,
Officer Christopher Dever, Sgt. Espinoza, & Sgt. Michael Barczy, Defendants.


PHILIP G. REINHARD, District Judge.

For the reasons stated below, defendants Sergeant Espinoza and Sergeant Michael Barczy's motion for summary judgment [64] is granted. Defendants Espinoza and Barczy are dismissed from this case.


On October 8, 2012, plaintiff Robert Smerling, a former inmate at the Dixon Correctional Center ("DCC"), filed a single count excessive force claim under 42 U.S.C. § 1983 against defendant Christopher Dever, a former correctional officer at the DCC. See [1]. In his complaint, plaintiff alleged Officer Dever physically assaulted him after performing "a shake down"[1] of his cell. See [1] ¶ 6. Plaintiff claimed the assault was unprovoked and alleged that two DCC sergeants, (later named defendants) Raymond Espinoza and Michael Barczy, witnessed the incident. Plaintiff claimed he suffered various injuries as a result of the incident and sought relief under Section 1983.

The procedural history in this case is extensive but relevant in the ultimate disposition of this matter. As a result, the court will summarize the procedural background to clarify what remains pending for the court's resolution.


Shortly after filing his initial complaint, plaintiff sent Officer Dever a waiver of service. This waiver was returned executed on January 1, 2013, but weeks passed without Dever answering the complaint or otherwise filing a response. See [12]. After Dever failed to appear at a scheduled status conference on February 1, 2013, plaintiff moved for default judgment. See [16]. In his motion, plaintiff alleged Dever had been terminated from his position as a correctional officer and his request for representation from the Illinois Attorney General's Office had been denied. Plaintiff claimed Dever had informed him of his intentions to obtain private counsel, but had not done so and had not responded to plaintiff's complaint. [16] at 2. Given his pro se status, Magistrate Judge P. Michael Mahoney entered and continued plaintiff's motion for default, and set a discovery hearing for March 13, 2013. See [18].

On March 13, 2013, Magistrate Judge Mahoney denied plaintiff's motion for default judgment. See [19]. At the discovery hearing, Magistrate Judge Mahoney acknowledged receipt of a letter from Dever and informed Dever that he had until April 9, 2013 to file a response to plaintiff's complaint. See [19]. On April 10, 2013, Dever filed his answer. See [21]. On April 24, 2013, the parties had a pretrial conference before Magistrate Judge Mahoney and a case management schedule was set. See [23].

On May 3, 2013, the case was transferred to Magistrate Judge Iain D. Johnston. See [25]. Shortly after the transfer, plaintiff filed a motion to compel and a motion for leave to file a second amended complaint. See [29]; [31]. In the motion to compel, plaintiff claimed Dever failed to produce any documents during discovery and failed to serve his Rule 26 disclosures. Magistrate Judge Johnston granted the motion to compel and ordered Dever to provide complete responses to plaintiff's discovery requests. See [33]. He also granted plaintiff's motion for leave to file a second amended complaint. See id.

In the second amended complaint, plaintiff added a failure to intervene claim against Sergeant Raymond Espinoza and Sergeant Michael Barczy. Plaintiff alleged Espinoza and Barczy were liable because they witnessed the altercation between plaintiff and Dever and failed to respond appropriately. See [34].

A few weeks after he filed the second amended complaint, plaintiff moved for default judgment against Officer Dever for a second time. In this motion, plaintiff claimed default was appropriate because Dever had disobeyed court orders with his continued failure to respond to plaintiff's discovery requests and his failure to appear at the last two scheduled court dates. See [37] at 2. Dever was given an opportunity to respond to the motion, but failed to do so. As a result, on August 19, 2013, this court entered a default against defendant Officer Dever and continued the case with respect to defendants Espinoza and Barczy. See [51]. In the court's order, it reserved judgment with respect to the damages against Dever until plaintiff's claims against the remaining defendants were resolved. See id.

Subsequently, plaintiff filed a third amended complaint. See [55]. In it, he added a failure to protect claim pursuant to Section 1983 against defendants Barczy and Espinoza. See [55].

Barczy and Espinoza timely answered the third amended complaint [57] and the parties have completed discovery. Upon completing discovery, defendants Barczy and Espinoza moved for summary judgment. See [64]. That motion is fully briefed and ripe for the court's review.


On summary judgment, the court construes all facts and draws all inferences in the light most favorable to the non-moving party. Schepers v. Commissioner, Indiana Dept. of Corrections, 691 F.3d 909, 913 (7th Cir. 2012). The court does not weigh evidence or determine the credibility of witness testimony. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). Instead, the court only grants 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). That said, Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing ...

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