United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE.
matter comes before the court on the Report and
Recommendation (“R & R”) (Doc. 103) of
Magistrate Reona J. Daly with regard to Defendant USA's
Third Motion (Doc. 96) for Summary Judgment. Plaintiff filed
an objection (Doc. 105) to the R & R and defendant filed
a response (Doc. 107) to the objection.
Court may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in a
report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court
must review de novo the portions of the report to
which objections are made. The Court has discretion to
conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed
necessary. Id. “If no objection or only
partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The Court has received an objection from the defendant and
will review de novo those portions of the report.
was inmate at FCI Greenville when another inmate assaulted
him with a Masterlock combination lock. Plaintiff suffered
significant injuries and has filed this claim of negligence
under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346, 2671-2680.
judgment must 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.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000).
The reviewing court must construe the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008); Spath, 211 F.3d at 396.
initial summary judgment burden of production is on the
moving party to show the Court that there is no reason to
have a trial. Celotex, 477 U.S. at 323;
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir.
2013). Where the non-moving party carries the burden of proof
at trial, the moving party may satisfy its burden of
production in one of two ways. It may present evidence that
affirmatively negates an essential element of the non-moving
party's case, see Fed. R. Civ. P. 56(c)(1)(A),
or it may point to an absence of evidence to support an
essential element of the non-moving party's case without
actually submitting any evidence, see Fed. R. Civ.
P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25;
Modrowski, 712 F.3d at 1169. Where the moving party
fails to meet its strict burden, a court cannot enter summary
judgment for the moving party even if the opposing party
fails to present relevant evidence in response to the motion.
Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
responding to a summary judgment motion, the nonmoving party
may not simply rest upon the allegations contained in the
pleadings, but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477
U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of
material fact is not demonstrated by the mere existence of
“some alleged factual dispute between the parties,
” Anderson, 477 U.S. at 247, or by “some
metaphysical doubt as to the material facts, ”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists only if “a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence
presented.” Anderson, 477 U.S. at 252.
is, of course, well established that, as a general matter, a
district court exercising jurisdiction because the parties
are of diverse citizenship must apply state substantive law
and federal procedural law.” Windy City Metal
Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs.,
Inc., 536 F.3d 663, 670 (7th Cir. 2008) (citing Erie
R.R. v. Tompkins, 304 U.S. 64 (1938)).
is alleging that the USA was negligence in the following
matter manner which facilitated the assault on the plaintiff:
failed to have sufficient staff; failed to have sufficient
lighting and cameras; overcrowding of the prisoner
population; and the use of an improper area as a holding
facility. (Doc. 6).
moved for summary judgment arguing that the above acts and/or
omissions fall within the discretionary function exception to
the FTCA. The FTCA is a limited waiver of the
Government's sovereign immunity. It gives federal courts;
exclusive jurisdiction of civil actions on claims against the
United States, for money damages . . . for injury or loss of
property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be ...