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Akindele v. Arce

United States District Court, N.D. Illinois

February 3, 2017

OLUWOLE AKINDELE #2013-1005137, Plaintiff,



         Plaintiff Oluwole Akindele, a pretrial detainee at the Cook County Jail, alleges in this pro se 42 U.S.C. § 1983 suit against Superintendent Arce and Commander Hickey that he was housed for nine days in a cell with a non-flushing toilet. Defendants have moved for summary judgment. Doc. 61. Plaintiff has not responded to the motion, despite having been given two opportunities to do so and having been warned that the court would rule on the motion without the benefit of a response if he failed to file one. Docs. 66, 71. The motion is granted.


         Consistent with the local rules, Defendants filed a Local Rule 56.1(a)(3) statement of undisputed facts along with their summary judgment motion. Doc. 63. The relevant factual assertions in the Local Rule 56.1(a)(3) statement cite evidentiary material in the record and are supported by the cited material. See N.D. Ill. L.R. 56.1(a) (“The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.”). Also consistent with the local rules, Defendants filed and served on Akindele a Local Rule 56.2 Notice, which explains what Local Rule 56.1 requires of a litigant opposing summary judgment. Doc. 64. Akindele did not file a response brief, a Local Rule 56.1(b)(3)(B) response to the Local Rule 56.1(a)(3) statement, or a Local Rule 56.1(b)(3)(C) statement of additional facts.

         “[A] district court is entitled to decide [a summary judgment] motion based on the factual record outlined in the [Local Rule 56.1] statements.” Koszola v. Bd. of Educ. of Chi., 385 F.3d 1104, 1109 (7th Cir. 2004) (third alteration in original) (internal quotation marks omitted); see also Olivet Baptist Church v. Church Mut. Ins. Co., ___ F. App'x ___, 2017 WL 129943 (7th Cir. Jan. 13, 2017) (“The district court treated most of the [defendant's] factual submissions as unopposed, because the [plaintiff] failed to contest them in the form required by Local Rule 56.1(b). We have held that the district court is entitled to enforce that rule in precisely the way it enforced the rule in this litigation.”); Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) (“Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings.”); Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 360 (7th Cir. 2009) (“We have repeatedly held that the district court is within its discretion to strictly enforce compliance with its local rules regarding summary-judgment motions.”); Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (“We have … repeatedly held that a district court is entitled to expect strict compliance with Rule 56.1.”). Akindele's status as a pro se litigant does not excuse him from complying with Local Rule 56.1. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance with local rules.”); Wilson v. Kautex, Inc., 371 F. App'x 663, 664 (7th Cir. 2010) (“[S]trictly enforcing Local Rule 56.1 was well within the district court's discretion, even though Wilson is a pro se litigant.”) (citation omitted); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro se litigants must follow rules of civil procedure.”).

         Accordingly, the court will accept as true the facts set forth in Defendants' Local Rule 56.1(a)(3) statement, viewing those facts and the inferences therefrom in the light most favorable to Akindele. See N.D. Ill. L.R. 56.1(b)(3)(C) (“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.”); Parra v. Neal, 614 F.3d 635, 636 (7th Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009) (“In accordance with [Local Rule 56.1(b)(3)(C)], the district court justifiably deemed the factual assertions in BP's Rule 56.1(a) Statement in support of its motion for summary judgment admitted because Rao did not respond to the statement.”); Cady, 467 F.3d at 1061; Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006); Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 943 (7th Cir. 2005); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003). That said, the court is mindful that “a nonmovant's … failure to comply with Local Rule 56.1 … does not … automatically result in judgment for the movant. The ultimate burden of persuasion remains with [the movant] to show that [the movant] is entitled to judgment as a matter of law.” Raymond, 442 F.3d at 608 (citations omitted). The court therefore will recite the facts in Defendants' Local Rule 56.1(a)(3) statement and then determine whether, on those facts, they are entitled to summary judgment.

         Akindele challenges the conditions of his confinement while he was housed in Cell 3263 in Division 9 at Cook County Jail in May 2015. Doc. 63 at ¶ 2. At that time, both Arce and Hickey were staffed in Division 9. Id. at ¶¶ 16-19.

         On May 3 at 7:30 a.m., the toilet in Akindele's cell overflowed after he flushed it, spilling urine, feces, and bread onto the floor. Doc. 63 at ¶¶ 3-4. Akindele testified that “not that much” feces spilled onto the floor and that he never came in contact with human waste. Id. at ¶¶ 5-6. An officer promptly responded to his calls for help, gave Akindele a mop, bag, dustpan, and gloves, and told Akindele that he would put in a work order and call a plumber. Id. at ¶¶ 7-8. After cleaning his cell, Akindele placed a towel over the toilet. Id. at ¶ 9. This was the only time the toilet overflowed. Id. at ¶ 15.

         On May 11, a plumber fixed the toilet, so Akindele's waste remained in the toilet from May 3 to May 11. Id. at ¶¶ 11-12. During that nine-day period, Akindele was able to use the dayroom restroom during dayroom time, which was 90 minutes each morning and evening. Id. at ¶ 13. A guard told Akindele that if he needed to use the restroom at other times, he could ask for permission. Doc. 63-1 at 186. Akindele estimated that, apart from dayroom time, he used toilets outside of his cell approximately three times during those nine days. Doc 63 at ¶ 14.

         Akindele testified that he continued to use his toilet when he could not use alternative facilities, meaning that his waste accumulated unflushed between May 3 and May 11. Id. at ¶ 10. His inability to readily access a flushing toilet caused him to experience cramping and pain. Id. at ¶ 22. He has not been diagnosed with any disorder that causes him to defecate more than an average person or any with medical condition as result of his toilet not flushing, id. ¶¶ 21, 24, and the record does not indicate that he ever soiled himself. After the toilet was fixed on May 11, Akindele's cramps stopped. Id. at ¶ 23. Akindele testified that after the repair, it took him approximately a week and half to adjust to using a toilet regularly again. Id. at ¶ 25.

         As for Defendants' involvement, on May 6 or 7, Akindele told Arce that his toilet was broken. Id. at ¶ 16. Arce advised Akindele that a work order had been submitted, that a plumber should be coming to repair the toilet, and that, in the meantime, he could use the toilet in the dayroom. Id. at ¶ 17. After Akindele told Arce that some officers were not allowing him to use the dayroom bathrooms, Arce stated, “we'll see what we can do.” Id. at ¶ 18.

         On May 8, Akindele told Hickey that his toilet was broken. Doc. 63 at ¶ 19. In response, Hickey stated, “[W]e will fix it.” Ibid. A work order was submitted to fix the toilet, which-as noted-was repaired on May 11. Id. at ¶¶ 20, 23.


         Defendants argue that the lack of a flushing toilet in Akindele's cell for nine days does not rise to the level of a constitutional deprivation and that, in any event, no evidence indicates that they acted with the state ...

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