United States District Court, S.D. Illinois
ROGER A. GRIGGS, Plaintiff,
USA, et al., Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE.
matter comes before the court on the Report and
Recommendation (“R & R”) (Doc. 74) of
Magistrate Judge Donald G. Wilkerson with regard to defendant
United States of America's Motion (Doc. 64) to Dismiss,
or in the Alternative, for Summary Judgment. The United
States filed an objection (Doc. 78) to the R & R and the
plaintiff filed a response (Doc. 79) 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).
In this matter, the Court has received an objection to the R
& R and will review those portions of the R & R
to the amended complaint (Doc. 47), defendant United States
failed to prevent an attack on the plaintiff by his cellmate
on June 23, 2014. Plaintiff alleges that he informed several
prison officials of his cellmate's threat and that the
plaintiff, “feared for his life as a result of his
cellmate's behavior.” (Doc. 47, ¶ 12).
However, the defendant failed to move the plaintiff to
another cell and as a result; plaintiff was brutally
assaulted and injured by his cellmate.
moved for dismissal on the basis that this Court lacks
subject matter or in the alternative, that there is no
evidence that prison officers were negligent. Taking all
evidence in a light most favorable to the plaintiff, the R
& R determined that there remains a number of material
disputed facts and as such, summary judgment is not
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.
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.
plaintiff is proceeding on one count against the United
States under the Federal Tort Claims Act
(“FTCA”). Defendant moved for summary judgment
arguing that the above acts and/or omissions fell 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 ...