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White v. Fitzgerald

United States District Court, S.D. Illinois

January 20, 2015

JON WHITE, Plaintiff,


MICHAEL J. REAGAN, Chief District Judge.


This ยง 1983 civil rights case comes before the Court on a Motion for Summary Judgment filed by two of the five remaining Defendants, Lashbrook and McKamick. (Doc. 69). The lawsuit was filed in 2012, and alleges that the pro se Plaintiff, currently incarcerated at Pontiac Correctional Center, suffered constitutional violations when Defendants acted with deliberate indifference to his safety (by failing to move him away from two inmates known to be dangerous) and, after an attack had occurred, again acted with deliberate indifference to Plaintiff's serious medical needs. (Doc. 1).

Plaintiff originally filed suit in the Northern District of Illinois. The case was transferred to this district on June 19, 2012, because the underlying allegations concern events at Menard Correctional Center. (Doc. 9). At threshold review, the Court found that Plaintiff had stated two viable claims: (1) endangerment and failure to protect against McKamick, Lindbergh, Anthony, and Fitzgerald; and (2) an Eighth Amendment/deliberate indifference to serious medical needs claim against Atchison and Lashbrook. (Doc. 20). Plaintiff later filed an Amended Complaint, which underwent another threshold review. (Doc. 52). The Amended Complaint added Defendants Lindbergh, Anthony, and Fitzgerald to Plaintiff's medical needs claim. (Doc. 52). But the Court found that Plaintiff had not stated a viable claim against Defendant Atchison, and he was dismissed at that time. (Doc. 52). Plaintiff had also originally stated a claim against a John Doe Defendant, who was dismissed for failure to identify him. (Doc. 60).

Defendants McKamick and Lashbrook filed this Motion for Summary Judgment on June 16, 2014. (Doc. 69). No other Defendant moved for summary judgment. Plaintiff filed a Response on July 15, 2014. (Doc. 72). The motion ripe for disposition. For the following reasons, the Motion is GRANTED as to both defendants.


Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment should be granted 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." Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012) (citing FED. R. CIV. P. 56(a)). A genuine issue of material fact remains "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Summary judgment has been described as the "put up or shut up moment" in the case, at which "the non-moving party is required to marshal and present the court with the evidence she contends will prove her case"-evidence on which a reasonable jury could rely. Porter v. City of Chi., 700 F.3d 944, 956 (7th Cir. 2012) (citing Goodman v Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010)). In assessing a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the non-moving party (here, Plaintiff). Anderson, 699 F.3d at 994; Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). But the district court may not resolve issues of credibility when deciding a summary judgment motion: "Those are issues for a jury at trial, not a court on summary judgment." Williams v. City of Chi., 733 F.3d 749, 752 (7th Cir. 2013).

Factual Background

Plaintiff was incarcerated at Menard Correctional Center in early 2012. (Doc. 53, 11). He has been incarcerated in the IDOC since 2006 for aggravated criminal sexual abuse. (Doc. 70-2, 6-7). On February 5, 2012 Plaintiff was taken to the North Two cell house due to a rule infraction. (Doc. 70-2, 16). He was housed in Cell 428, a single-man cell. ( Id. at 16-17). While housed in Cell 428, inmates Malone and Hernandez began threatening Plaintiff on a regular basis, including making threats so that the entire gallery would hear them and attempting to entice Plaintiff out into the yard to fight. (Doc. 70-2, 18). Plaintiff refused to go to the yard in February 2012. (Doc. 70-2, 20). Plaintiff alleges the inmates harassed him daily because of his crime. ( Id. at 26).

One day, Plaintiff was returning to his cell when Inmate Malone swung at him with a makeshift weapon. (Doc. 70-2, 19). Defendant McKamick, a Correctional Officer, was escorting Plaintiff back to his cell at the time, and Plaintiff testified that McKamick saw inmate Malone hit Plaintiff in the head with a soap-sock. ( Id. at 19). McKamick was behind Plaintiff holding the lead to his handcuffs. ( Id. ). Plaintiff turned around and said, "You saw that." McKamick replied that he had not seen anything. ( Id. ). Plaintiff asked McKamick to move him away from Malone and Hernandez. ( Id. at 19).

Plaintiff deponed that he made other requests for protective custody, but they were always denied or ignored. (Doc. 70-2, 70-72). Plaintiff also testified that prior to February 24, 2012, he had written to internal affairs, his counselor, and his mental health specialist to request that Malone and Hernandez be added to his "Keep Safe From" (KSF) list. ( Id. at 30).

On February 24, 2012, over his strenuous objections, Plaintiff was moved into a cell with inmate Hernandez. ( Id. at 29-30, 32-37). Hernandez beat Plaintiff severely and sexually assaulted him. ( Id. at 38). (Hernandez forced Plaintiff to give him oral sex by threatening to stab him. ( Id. at 44)). Plaintiff told neither the guards nor the med-tech that he had been beaten, because Hernandez threatened him with more beatings if he did so. ( Id. at 40-42). Plaintiff did not submit a sick call slip because Hernandez read everything he put into the bars. ( Id. at 44). Hernandez took Plaintiff's phone list and visiting list and threatened Plaintiff by saying that he would hurt his family if Plaintiff told anyone what happened. ( Id. at 46). Within a few days, Plaintiff was moved to another cell and told an officer that he wanted to speak to IA. ( Id. at 49).

Lashbrook interviewed Plaintiff on March 2, 2012. ( Id. at 50). At that time, Plaintiff refused to give her any information about the incident with Hernandez due to the threats Hernandez had made against Plaintiff's family. ( Id.; Doc. 70-1, 1-2, 4). Plaintiff had bruises, cuts, and visible swelling at the time of the interview. (Doc. 70-2, 51). Lashbrook concedes that she observed Plaintiff with two black eyes. (Doc. 70-1, 1). Plaintiff swears that, despite the fact that he would not speak with Lashbrook, Lashbrook did not take pictures as part of her investigation and did not refer him to the health care unit. (Doc. 70-2, 51-52). Lashbrook's affidavit indicates she offered Plaintiff protective custody at that time, and that Plaintiff refused. (Doc. 70-1, 2). Plaintiff alleges that he specifically asked to see a nurse and that Lashbrook refused ...

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