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Kozar v. Munoz

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

January 31, 2017

ANDREW KOZAR, Plaintiff,



         Andrew Kozar, at all relevant times a detainee at Cook County Jail, filed this suit under 42 U.S.C. § 1983, alleging that correctional officers Xavier Collier, Lewis Ervin, Joseph Fabian, James Hardwick, Christopher Munoz, and Jerold Smith were deliberately indifferent on several occasions to a substantial risk of harm posed by other detainees. Doc. 40. Cook County is a defendant for purposes of indemnification. Id. at 10-11. With discovery closed and a jury trial set for June 5, 2017, Docs. 50, 74, Defendants have moved for summary judgment, Doc. 65. The motion is granted in part and denied in part.


         The following facts are stated as favorably to Kozar as permitted by the record and Local Rule 56.1. See Woods v. City o/Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In considering Defendants' motion, the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir. 2015). Kozar has conceded summary judgment on his Monell claim, medical care claims, and claims pertaining to an alleged January 31, 2014 attack, Docs. 68, 73, so facts regarding those claims are not included.

         A. December 26, 2013 Incident

         On December 26, 2013, Kozar was in his cell at Cook County Jail with several other detainees. Doc. 70 at ¶¶ 1-2. Four of our defendants-Collier, Ervin, Fabian, and Smith-were the only correctional officers on duty in Kozar's area. Id. at ¶ 6. Kozar did not expect to be assaulted that day, and so he did not tell any of the officers that he feared that he would be assaulted. Doc. 67 at ¶ 9.

         Kozar was sitting on his bed when a detainee approached him, pulled his pants down, and put his genitals near Kozar's face. Doc. 70 at ¶ 2. Another detainee thrust a storage bin on top of Kozar to try to pin him down, and then covered him with a blanket and punched him repeatedly. Ibid. During this attack, Collier and Smith walked past Kozar's cell. Doc. 67 at ¶¶ 6-7. They looked inside, saw what was happening, shook their heads, and walked away. Id. at ¶ 6; Doc. 70 at 3. Twenty to forty seconds later, while Kozar was being pummeled, two officers entered the cell and broke up the fight. Doc. 67 at ¶ 8. One of the officers was Fabian, and the other is unknown. Ibid. Ervin was in another area eating lunch during the entire episode. Doc. 70 at ¶ 7. Kozar suffered a split lip, bruises all over his body, and perhaps a concussion as a result of the assault. Id. at ¶ 13.

         B. May 19, 2014 Incident

         Kozar began sharing a cell with a detainee named Juan Rivera on April 30, 2014. Doc. 67 at ¶ 19. Rivera's behavior made Kozar feel afraid; Rivera talked to himself, made nonsensical comments, forced Kozar to turn around when Rivera urinated, and acted "generally paranoid." Id. at ¶¶ 19-20. Kozar first reported these concerns about a week after he began living with Rivera. Id. at ¶ 19. By May 19, Kozar sensed that Rivera's condition had worsened; he was pacing around the cell, talking to himself, and saying that everyone was going to rape him. Doc. 70 at ¶ 15.

         Another of our defendants, Munoz, was the correctional officer supervising Kozar's cell from 3:00 to 11:00 p.m. on May 19. Id. at ¶ 16. Kozar told Munoz several times that day that he was afraid of Rivera. Id. at ¶ 17. At one point, Kozar told Munoz: "You gotta get me out of this cell. This man is mentally unstable. I can't be in here. I'm afraid of this guy. I don't know what I'm going to do." Ibid. Kozar even asked to be put in solitary confinement in order to get away from Rivera. Ibid. Munoz initially told Kozar that he was looking into moving Kozar out of Rivera's cell, but later said that it would take too much time. Doc. 67 at ¶ 22; Doc. 70 at ¶ 18. Munoz walked past Kozar's cell every fifteen minutes until the end of his shift. Doc. 67 at ¶ 22.

         Kozar fell asleep sometime before 11:00 p.m. Id. at ¶ 23. Shortly before midnight, Kozar awoke to find that Rivera had become agitated. Id. at ¶ 16. Rivera punched Kozar in the face, leaving him with a broken nose and severe bruising. Id. at ¶¶ 16-17.

         C. November 1, 2014 Incident

         On November 1, 2014, Kozar was being held in a dormitory. Doc. 70 at ¶ 23. Our last defendant, Hardwick, was the only correctional officer supervising the dormitory, which housed about 48 detainees. Doc. 67 at ¶ 29. A dispute arose at one end of the room, where Kozar and other detainees were gathered. Doc. 70 at ¶ 24. One detainee began to "get loud" with Kozar. Ibid. As the detainee approached him in an aggressive manner, Kozar maneuvered around some bunk beds to get away and yelled out to Hardwick for help. Id. at ¶ 25. Hardwick watched what was happening but did not intervene. Ibid. Kozar grabbed a nearby cane and swung it to block the approaching detainee. Id. at ¶ 26. The detainee overpowered Kozar, grabbed the cane, and threw him to the ground. Ibid.

         Hardwick walked slowly toward the fight and then stopped a few feet away from Kozar as he was lying on the ground being punched and kicked. Id. at ¶¶ 26-27'. Hardwick stopped other detainees from separating Kozar from his attacker, telling them to "let them fight it out." Id. at ¶ 27. Hardwick ultimately broke up the fight. Doc. 67 at ¶ 31. It was approximately one-and-a-half to ...

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