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Conwell v. Johnsen

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

November 9, 2016

DONALD CONWELL, Plaintiff,
v.
COMMANDER J.K. JOHNSEN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RUBEN CASTILLO CHIEF JUDGE

         Donald Conwell ("Plaintiff) brings this action under 42 U.S.C. § 1983 against Cook County, Cook County Sheriff Thomas Dart ("Sheriff Dart"), 27 individual employees of Cook County Jail ("Defendant Officers"),, and 4 John Does for violations of his First, Eighth, and Fourteenth Amendment rights. (R. 88, Third Am. Compl.) Sheriff Dart and 17 of the Defendant Officers now move for partial summary judgment. (R. 114, Mot.; R. 117, Dart Mot.) For the reasons set forth below, Sheriff Dart's motion for summary judgment is granted and the Defendant Officers' motion for summary judgment is granted in part and denied in part.

         FACTS

         Plaintiff claims that the events alleged in his amended complaint demonstrate a campaign of harassment by staff at the Cook County Jail between 2011 and 2013. (Third Am. Compl. ¶¶ 39-45.) Plaintiff alleges that in 2007 he was beaten by guards in the Cook County Jail and, as a result, he has limited mobility and uses a wheelchair. (Id. ¶ 39.) Plaintiff filed a lawsuit against a number of jail officers; however, it was dismissed for lack of prosecution. (Id. ¶ 40; R. 1-3, Compl., Conwell v. Cook Cty., 09-cv-02359 (N.D. III., filed Apr. 17, 2009); see also Id. at R. 86, Dismissal for Want of Prosecution.) Plaintiff found himself back in jail in 2011 and has since filed "numerous .. . grievances against various officers at the Cook County Jail." (Third Am. Compl. ¶¶ 40-41.) Because of the prior lawsuit and these grievances, Plaintiff claims that many officers "feel and express animus" toward Plaintiff, that officers and detainees have entered into "an agreement to violate Plaintiff['s] .. . civil rights, " and that the parties "have participated in overt acts in furtherance of that agreement." (Id. ¶¶ 42-44.) During the relevant time period, Plaintiff was a pretrial detainee assigned to the Cermak Hospital unit within the Cook County Jail. (Id. ¶ 1.) The facts are undisputed unless otherwise stated.

         I. Altercations with Inmates

         A. Inmate Brooks

         On February 5, 2012, Plaintiff claims that Defendant Nathan Bowens announced in front of other inmates within the general inmate population that Plaintiff was a "snitch." (R. 122, pl.'s Suppl. Facts ¶ 3.) As a result, and despite the fact that Plaintiff claims that he was allegedly already in protective custody, Plaintiff asked Bowens to be placed in protective custody because he feared for his safety. (Conwell Dep. at 38-39.) After being called a snitch, Plaintiff testified that other inmates verbally assaulted him. (Id. at 42.) The next day, Plaintiff entered inmate Richard Brooks's cell to speak with his cellmate. (Id. at 44.) As he was leaving the cell, he was attacked by Brooks. (Id.) Plaintiff testified that the attack was unprovoked, he had no prior problems with Brooks, and that he "was shocked" at what happened. (Id. at 43-45.) A disciplinary report from the date of the incident states that Officer Smith "witnessed detainee Conwell. . . fall on the floor in the doorway of room 3221, " and that detainee Brooks was "following [from] behind him shouting 'You hit me in the balls' and 'get out of my room.' " (R. 122-7, Ex. 1 to Bowens Dep., Disciplinary Report.) Plaintiff alleges that Lieutenant Bowens and Officer Smith (first name unknown), and a John Doe Officer failed to protect him from inmate Brooks on February 6, 2012. (Third Am. Compl, ¶¶ 46-53.)

         B. Inmate Dawson

         In August 2012, Plaintiff filed at least two emergency grievances relating to inmate Kevin Dawson. (R. 122-12, Ex. L to Resp., Emergency Grievances.) One of the grievances indicated that Officer Jose Tiscareno was "trying to" get Dawson to attack Plaintiff and that Dawson had "placed a bunch of threatening letters on the window to let me view." (Id., at 1.) In another grievance, Plaintiff claimed that Officer Tiscareno gave Dawson "a metal object with a sharp tip (knife)" and that Dawson was hiding this knife in "his wheel-chair [or] mattress." (Id. at 2.) Plaintiff also signed an "Office of Professional Review Complaint Register" on September 19, 2012, reiterating these allegations. (Id., at 4-5.) On October 16, 2012, Commander J.K. Johnsen issued a Cook County Department of Corrections memorandum. (R. 122-2, Ex. B to Resp. to Mot., Keep Separate Order.) The subject of the memorandum was "Detainees Allowed out of Their Rooms" and it was addressed to "3 South Security Staff." (Id. at 1.) The document states:

         At no time will detainee Conwell, Donald #2012-0607038 be allowed out with detainee Gibbs. Henry #2008-0073343 or detainee Dawson, Kevin #2010-00322194.

(Id.)

         On October 25, 2012, Defendant Officer Rommel Romero escorted Plaintiff to a staging area at the Cook County Jail because Plaintiff had a court appearance scheduled on that day. (R. 122, pl.'s Resp. to Facts ¶ 15.) Before he left his cell, Plaintiff told Officer Romero of the Keep Separate Order between Dawson and himself. (Conwell Dep. at 48-49.) Plaintiff also testified that right before he entered the staging area, he saw Dawson inside the area and told Defendant Officer Jimmy Chapman that he feared for his safety, Dawson may have weapons on him, and that the two inmates were to be kept apart. (Id. at 58-59.) Likewise, Plaintiff testified that he also told Defendant Officer John Malloy on that day that he and Dawson were "to be kept separate." (Id. at 60.)

         Officer Romero testified that he left Plaintiff in the custody of the officers that were on duty in the staging area. (pl.'s Resp. to Facts ¶ 16.) He also stated that when he left the staging area, he did not see any other inmates present. (Id. ¶¶ 17-18.) However, Plaintiffs testimony suggests that Dawson was in the staging area before he entered the room. (Conwell Dep. at 59.) While it is unclear from the record when Dawson entered the staging area and who escorted him there, the two inmates were in the same area at the same time, a fight ensued, and Plaintiff testified that Dawson hit him and stabbed him with a knife in his right forearm. (R. 130, Defs.' Resp. to Suppl. Facts ¶ 6.)

         It is also not entirely clear from the record which officers were present during the altercation. Officer Romero's testimony suggests that he was present prior to the altercation but not during. (R. 115-5, Ex. E to Mot., Romero Dep. at 13-14.) However, Plaintiffs testimony suggests otherwise. (Conwell Dep. at 59.) Officer Malloy testified that he was on duty at the time and witnessed at least part of the altercation. (R. 115-7, Ex. G to Mot., Malloy Dep, at 8, ) Plaintiff testified that Officer Chapman was also present at the time of the altercation. (Conwell Dep. at 72-73.) Plaintiff cites to Sergeant Daraice Wiggins's deposition testimony for the proposition that she "took statements of the officers who were present during the altercation." (pl.'s Resp. to Facts ¶ 23.) However, it does not appear that any of the parties attached the relevant portion of Sergeant Wiggins's deposition transcript. Documents also suggest that Defendant Bowens was also present at some point: Sergeant Wiggins and Lieutenant Bowens both signed an Inmate Disciplinary Report documenting that a fight had occurred between Dawson and Plaintiff, but it is not clear from the document whether they were present for the actual altercation. (R. 122-3, Ex. C to pl.'s Resp., Inmate Disciplinary R.) The same day of the altercation, Plaintiff also submitted a grievance that stated, "Supervisors Sgt. Wiggin and Incompetent Lt. Bowers [sic] fail[ed] to supervise the officers they were suppose to manage. This is the second incident that Involve[d] Lt. Bowers [sic] where I've ended up in the Stroger Trauma Unit with a[n] injury." (R 124-4, Ex. D to Resp., 10/25/2012 Grievance.) Thus, the record suggests that Lieutenant Bowens, Sergeant Wiggins, and Officers Romero, Malloy, and Chapman were on duty and present immediately before, during, and/or after the altercation.

         Officer Malloy contacted medical staff following the altercation and Plaintiff testified that he received medical treatment "between 35 and 45 minutes" later. (pl.'s Resp. to Facts ¶¶ 20-21.) While the extent of Plaintiff s injury is disputed, he testified that he lost a fair amount of blood because of the stabbing. (Conwell Dep. at 75-76.) However, The Inmate Disciplinary Report lists Plaintiffs injuries as a "small scratch to right arm." (Inmate Disciplinary R. at 1.)

         As a result of this altercation, Plaintiff alleges that Officers Romero, Chapman, Malloy, and two John Doe Officers failed to protect him, (Third Am. Compl. ¶¶ 72-83), and that Lieutenant Bowens and Sergeant Wiggins failed to supervise these officers, (id. ¶ 85). Plaintiff also alleges that Lieutenant Bowens, Sergeant Wiggins, and Officers Chapman and Malloy failed to seek immediate medical assistance despite Plaintiffs injuries. (Id. ¶¶ 84-88.)

         Plaintiff had another altercation with Dawson on July 22, 2013. (pl.'s Resp. to Facts ¶ 39.) Plaintiff testified that he was sitting on his bed inside his cell while receiving a nebulizer treatment for his asthma. (Conwell Dep. at 80-81.) He testified that he was sitting "three or four inches" from the "chuckhole" of the cell door. (Id.) Plaintiff explained that the reason why he was sitting so close to the chuckhole was because during the nebulizer treatment an oxygen tube is put through the chuckhole and he had to put his mouth on the oxygen tube. (Id. at 82.) As Plaintiff was taking his nebulizer treatment, he testified that Dawson walked up to his cell door and spit on his face. (Id. at 79, 82.) Sergeant Ronald Kolnicki was not present when Dawson spit on Plaintiff, but he responded to the incident. (pl.'s Resp. to Facts ¶ 42.) Plaintiff testified that Sergeant Kolnicki laughed when he heard about what happened. (Conwell Dep. at 86.) Plaintiff also testified that Officers Carol Begley and Koch (first name unknown) were also on duty that day. (Id. at 87.) Plaintiff alleges that Sergeant Kolnicki and Officers Begley and Koch failed to protect Plaintiff and adequately respond to Dawson's attack, (Third Am. Compl. ¶¶ 127-29.)

         C. Inmate Miller

         On October 10, 2013, Plaintiff had an altercation with inmate David Miller. (pl.'s Resp. to. Facts ¶ 44.) Plaintiff testified that he was inside Miller's cell at the time of the attack because the phone inside Plaintiffs cell was not working and Officer Begley told Plaintiff that he could use the telephone in Miller's cell. (Id.; see also Conwell Dep. at 89-90.) Plaintiff testified that while he had never had any previous problems with Miller, he told Officer Begley that he did not feel comfortable going into Miller's cell because he was a "known racist, " had "racist tattoos on bis body, " and "was rumored to be locked up for killing an African-American." (Id. at 92.) Officer Begley responded that "nothing [was] going to happen." (Id. at 92-93.) Plaintiff was in Miller's cell for approximately five minutes when Miller began threatening Plaintiff. (Id. at 93.) Plaintiff testified that Miller pulled him out of his wheelchair, punched him, scratched and clawed at his face, and kicked him. (Id. at 94-95.) Plaintiff began screaming and at least ten officers-including Commander David Hudik and Officers Begley, Bailey (first name unknown), and Cruz (first name unknown)-responded. (Id. at 96, 99, 104.) Following the attack, Plaintiff testified that he screamed "I need medical treatment. I need medical attention. I'm bleeding from my elbow. I need to see a doctor." (Id. at 104.) Plaintiff testified that Commander Hudik and Officers Cruz (first name unknown), McGee (first name unknown), and Ortell (first name unknown) all heard his cries, but he claims that it took "about two hours" for him to receive medical attention. (Id. at 102.) Based on the attack by Miller, Plaintiff alleges that Officers Begley and Bailey failed to protect Plaintiff. (Third Am. Compl. ¶ 149-50.) Plaintiff also alleges that Officer Cruz delayed in sending for medical treatment. (Id. ¶ 155.)

         II. Altercations with Defendant Officers

         A. March 12, 2012, Altercation

         In March 2012, Plaintiff was in an altercation with Officers Tiscareno, William Baker, Miguel Olavarria, and Jennifer Jefferson, (pl.'s Resp. to Facts ¶ 6.) The accounts of the altercation are drastically different. Plaintiff testified that prior to the incident he was told by Officer Jefferson that he was going to be transferred to a new cell and that the new cell was "a cell they put people in they want to punish for filing grievances." (Conwell Dep. at 109, 111, ) Plaintiff testified that it was the "worst" cell in the unit because it was not handicap accessible, and had leaking plumbing, no view, and no hot water. (Id. at 111-12, ) Plaintiff testified that he requested to see a supervisor; however, the Officers did not want to wait for a supervisor. (Id. at 110, 114.) The situation quickly escalated and Plaintiff testified that Officers Baker and Olavarria "shoved" him out of his wheelchair and punched him, Officer Tiscareno jumped on his back and began choking him, and Defendant Officer Jefferson kicked him in the face. (Id. at 114-115.) Plaintiff testified that he eventually lost consciousness, but woke up "30 feet away being dragged by some handcuffs by Baker and Tiscareno to another cell." (Id. at 117.) Plaintiff also testified that Officer Ramonita Perez was the "lookout" and did not intervene. (Id. at 118.) Plaintiff attaches a sworn affidavit from inmate Henry Gibbs. (R. 122-5, Ex. E to Resp., Aff, ) The affidavit states that Gibbs "saw the officers remove" Plaintiff from his wheelchair "by force, " "saw Officer Tiscareno drag detainee Conwell by the collar, " and saw Plaintiff "gasping for air because it appeared that he was being choked while he was being dragged across the floor." (Id.) Gibbs also attested that "Officers Jefferson, Perez, Olavarria, Baker, and Tiscareno were all present" during the altercation. (Id.)

         The Defendant Officers' version of events is in stark contrast. They claim that Plaintiff was told that he had to move cells because he was engaging in an activity "resembling masturbation." (Conwell Dep. at 108-109.) Officer Tiscareno testified that when Plaintiff was informed that he would be moving cells, he refused to go, and that he "picked up a metal leg rest from the wheelchair" and "slammed it in his metal stool... and told us that he wasn't moving." (R. 130-1, Ex. A to Reply, Tiscareno Dep. at 12-13.) Officer Tiscareno testified that Officer Baker then "reached for the metal leg rest and removed it from his cell, " but that Plaintiff "got up from his chair" and moved toward Tiscareno with his hand in a fist. (Id. at 13.) Officer Tiscareno stated that he, Plaintiff, and Officer Baker fell to the ground during the struggle. (Id.) While trying to restrain Plaintiff, Officer Tiscareno hit his head and jammed his fingers, but he acknowledged that at no time did Plaintiff ever hit him. (Id. at 13, 15.) Officer Tiscareno testified that eventually Plaintiff was handcuffed, (Id. at 14, ) Officer Baker's testimony is similar to Officer Tiscareno's, but he testified that Plaintiff repeatedly kicked his head. (R. 130-2, Ex. B to Reply, Baker Dep, at 12-14.) Because of the incident, Plaintiff was charged with four counts of aggravated battery to a peace officer under 720 III. Comp. Stat. 5/12-3.05(d)(4) and was convicted of one count of aggravated battery relating to Officer Baker. (pl.'s Resp. to Facts ¶¶ 7-8.) The conviction was affirmed on appeal. People v. Conwell;, No. 1-14-3818, 2016 WL 4138618 (Ill.App.Ct. Aug. 1, 2016). Based on the March 12, 2012, altercation, Plaintiff alleges that Officers Baker, Tiscareno, Olavarria, and Jefferson used excessive force against him and that Officer Perez failed to intervene. (Third Am. Compl. ¶¶ 57-62.)

         B. December 13, 2012, Altercation

         In December 2012, Plaintiff was transported to Stroger Hospital for medical treatment. When it was time for Plaintiff to be transported back to the Jail, he testified that the officers would not allow him to travel in a wheelchair-accessible van, but instead wanted to transport him in a squad car. (Conwell Dep. at 120-21.) Plaintiff testified that he told the officers that he was unable to get in the squad car so an unnamed transportation officer "shoved" Plaintiff out of the wheelchair, started punching him, and told his coworkers to "[h]elp me get this bitch in the car." (Id. at 122.) Plaintiff testified that Officers William Rooney and Robinson (first name unknown) were also there and both punched him in the face. (Id. at 126-27.) Plaintiff testified that the attack stopped once he was dragged into the squad car. (Id. at 130.) Plaintiff stated that after the attack and while he was still at Stroger Hospital, he complained to Sergeant Johnson (first name unknown) and told him that he needed medical attention. (Id. at 130, 132.) Despite requesting medical attention while still at Stroger Hospital, Plaintiff was transported back to Cook County Jail. (Id. at 132.) Plaintiff admits that he saw an unidentified medical professional within an hour of arriving at Cermak Health Services. (pl.'s Resp. to Facts ¶ 31.) Plaintiff testified that while he did see a medical professional, he did not see a physician and was not taken to the Cermak emergency room. (Conwell Dep. at 136.) Plaintiff claims that he made repeated requests to Lieutenant Albert Martinez, Sergeant Johnson, and Officers Regina Eppes-Davis, Conley (first name unknown), and Ervin (first name unknown) for additional medical attention, but he claims that his requests were ignored. (Conwell Dep, at 136.)

         Based on the December 13, 2012, altercation Plaintiff alleges that Officers Rooney, Robinson, and other unnamed correctional officers used excessive force against him, and that Sergeant Johnson failed to intervene. (Third Am. Compl. ¶¶ 107-110.) Plaintiff also alleges that Lieutenant Martinez, Sergeant Johnson, and Officers Conley, Eppes-Davis, and Ervin prevented Plaintiff from obtaining medical care. (Id. ¶¶ 115-120.)

         III. Conditions of Plaintiffs Jail Cell

         Plaintiff next complains that his jail cell was unsanitary and not handicap accessible. (Id. ¶ 132.) While it is unclear if Plaintiff was in an isolation cell because of his medical condition or due to other reasons, Plaintiff testified that each isolation cell is equipped with its own "shower area, sink, bed, phone, [and] desk." (Conwell Dep. at 144.) However, Plaintiff testified that he was placed in a cell in March 2012 that was "cold, [had] water leaking from the toilets, no working phones, ... no hot water, no view, and they had rodents running around there like cockroaches and bugs and stuff, " (Id. at 138.) During the summer months, Plaintiff claims that the cell was excessively cold because the air conditioning was set too high. (Id., at 140.) He also testified that the water leaking from the toilet was a hazard because he had to get out of his wheelchair to use the toilet and it was unsafe. (Id. at 141.) It is unclear from the record how long Plaintiff was in this particular cell, but his testimony suggests that he was exposed to these conditions for "collectively over a year." (Id. at 138-39.)

         Plaintiff claims that he filed numerous grievances about the conditions of this cell. (Id. at 140, 146.) However, there is only one grievance in the record. The grievance dated March 15, 2012, states:

On 3-15-2012, I was place[d] in a cell on 3-South, there's NO hot water; NO working phone; there's feces and blood on the wall. I was deliberately placed in this cell by correctional ofc. Jefferson in a effort to harras[] me, with the hopes of me catching a disease.

(R, 115-9, Ex. I to Mot., Inmate Grievance Form.) Plaintiff requested to be tested for "any and all diseases, " and to have his cell and walls "power washed." (Id.) The Inmate Grievance Response form states that "all cells in Cermak are cleaned by Cermak Health Services" and that "CCDOC staff ha[s] no control over Cermak staff." (Id. at 2.) Plaintiff claims that he suffered skin rashes from being exposed to the leaking water, but that he was denied treatment to "see a skin specialist." (Conwell Dep. at 141.) Plaintiff also testified that his asthma was aggravated because of the cockroach infestation. (Id. at 144-48.) Plaintiff claims that because there was no hot water he took "two or three showers" over the course of a year. (Id. at 147.) Based on these conditions, Plaintiff brings a claim challenging the conditions of his confinement against Commander Hudik and Officers Begley and Koch. (Third Am. Compl. ¶¶ 130-38.)

         IV. Retaliation Claims

         Plaintiff generally alleges that all of the instances of substandard living conditions, excessive force, denial of medical care, and failure to protect him from other inmates were acts of retaliation by the Defendant Officers. Specifically, Plaintiff claims that because of the prior lawsuit and the numerous grievances he has filed, many of the Defendant Officers have retaliated against him. (Third Am. Compl. ¶¶ 40, 130, 139, 141, 151.) As for specific instances of retaliation, Plaintiff alleges that Commander Hudik placed him in segregation around March 2013 because of the grievances that he filed. (Id. ¶ 130.) Plaintiff also alleges that on or around May 23, 2013, Officers Begley and Koch removed Plaintiffs shoes from his cell and destroyed them in retaliation for the grievances that he filed. (Id. ¶ 139.) It is unclear exactly which of the Officers Plaintiff brings retaliation claims against, but Commander Hudik, Lieutenant Bowens, Sergeant Wiggins, and Officers Begley, Smith, Baker, Tiscareno, Perez, Chapman, Malloy, and Romero have moved for summary judgment on this claim.

         During his deposition, Plaintiff was asked to testify regarding his retaliation claim and specify any instances that would support his claim; however, he provided few details. (Conwell Dep. at 148-152.) For example, Plaintiff was asked how he knew that any of the Officers were aware of the 2007 lawsuit or any of the grievances that Plaintiff filed and, thus, that they were retaliating against him because of said events. (Id. at 149.) Plaintiff testified that some of the Officers worked in the Cermak section of the Cook County Jail in 2007 and "know me from my past." (Id. at 149-50.) He also testified that "a lot of [the officers] started off retaliating from day one when I first got in the County and they passed words. It's called paperwork, paper trail." (Id. at 151.) However, he testified that he had no knowledge of any of the Defendant Officers communicating amongst themselves regarding retaliating against him. (Id. at 152.)

         V. Sheriff Dart

         Finally, Plaintiff alleges that Sheriff Dart, as a custom, policy or practice, failed to properly screen, train, and supervise Cook County Sheriff employees. (Third Am. Compl. ¶¶ 162-63, 166-67, 174-75, 182-86.) As a result of these practices, Plaintiff alleges that his constitutional rights were violated, he was subject to excessive force by the Defendant Officers, and he was retaliated against for filing grievances and lawsuits (Id.)

         PROCEDURAL HISTORY

         Because the Court has sufficiently outlined the procedural history in this four-year-old case in prior orders, the Court will only briefly touch upon some recent events. See Conwell v. Cook Cty., 12 C 10062, 2015 WL 4973086, at *1 (N.D. Ill. Aug. 18, 2015); Conwell v. Cook Cty., 12 C 10062, 2014 WL 5293403, at *1 (N.D. Ill. Oct. 14, 2014), In its last memorandum opinion and order, the Court dismissed any substantive claims against Cook County but ordered it to remain in the lawsuit "for purposes of indemnification only." Conwell, 2015 WL 4973086, at *5. As to Defendant Officers' Rule 12(b)(5) motion, while the Court recognized that Plaintiff had not properly served 13 of the Defendant Officers within the required statutory period, the Court denied the motion and granted "Plaintiff a final discretionary extension of 30 days to properly served the Defendant Officers, " Id. at *8. As discussed below, Plaintiff has yet to serve 10 of these 13 Defendant Officers.

         On August 26, 2015, Plaintiff filed his third amended complaint. (Third Am. Compl.) While it is not a model of clarity, Plaintiff appears to allege four failure to protect claims, two excessive force claims, failure to intervene, a condition of confinement claim, two denial of medical care claims, numerous retaliation claims, and a claim under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). Defendant Officers now move for partial summary judgment as to Plaintiffs claims. (R. 114, Mot.) Plaintiff filed his response, (R. 123, Resp.), and Defendant Officers replied, (R. 132, Reply). In a separate motion, Sheriff Dart moves for summary judgment on the Monell claim and seeks to dismiss the unnamed John Does. (R. 117, Dart Mot.) Plaintiff filed a response, (R. 125, Resp. to Dart Mem.), and Sheriff Dart replied, (R. 131, Dart Reply.)

         LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant 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). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). "A genuine dispute as to any material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014) (citation and internal quotation marks omitted). In deciding whether a dispute exists, the Court must "construe all facts and reasonable inferences in the light most favorable to the non-moving party." Nat'l Am, Ins. Co. v. Artisan & Truckers Cas. Co., 796 F.3d 717, 723 (7th Cir. 2015) (citation omitted).

         Under Rule 56, the movant has the initial burden of establishing that a trial is not necessary. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014). "That burden maybe discharged by showing ... that there is an absence of evidence to support the nonmoving party's case, "Id. (internal quotation marks and citation omitted). If the movant carries this burden, the nonmovant "must make a showing sufficient to establish the existence of an element essential to that party's case." Id. (citation and internal quotation marks omitted). The nonmovant "must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in [their] favor." Id. (internal quotation marks and citation omitted). "The existence of a mere scintilla of evidence, however, is insufficient to fulfill this requirement." Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008).

         At this juncture, the Court cannot weigh conflicting evidence, assess the credibility of the witnesses, or determine the ultimate truth of the matter, as these are functions of the jury. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255 (1986); Omnicare, Inc. v. United Health Grp., Inc.,629 F.3d 697, 704-05 (7th Cir. 2011). In other words, "summary judgment cannot be used to resolve swearing contests between litigants." Payne v. Pauley,337 F.3d 767, 770 (7th Cir. 2003). Instead, the Court's role is simply "to determine whether there is a ...


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