United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Charles P. Kocoras, United States District Court Judge
Cornell Vinegar (“Vinegar”), now a prisoner at
Graham Correctional Center, brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that while he was incarcerated at the Northern
Reception and Classification Center at Stateville
Correctional Center (“Stateville NRC”), Lt.
Phillip Martin (“Lt. Martin”) used excessive
force against him, and Lt. Cletus Shaw (“Lt.
Shaw”) failed to intervene to prevent that use of
force. Now before the Court is Defendants' motion for
summary judgment (Dkt. No. 54), Vinegar's motion to
strike exhibits and testimony attached to Defendants'
motion for summary judgment (Dkt. No. 59), and Vinegar's
motion for attorney representation (Dkt. No. 77). For the
reasons stated, Defendants' motion for summary judgment
(Dkt. No. 54) is granted as to Vinegar's claim for
injunctive relief, and is denied in all other respects.
Vinegar's motion to strike (Dkt. No. 59) is denied.
Vinegar's motion for attorney representation (Dkt. No.
77) is granted, and counsel will be recruited by separate
following facts are taken from the parties' N.D.Ill.
Local Rule 56.1 Statements of Material Facts
(“SOF”). Vinegar filed the complaint in this case
over an incident that allegedly occurred while he was
incarcerated at Stateville NRC in October 2014. (Defs.'
Stmt. (Dkt. No. 56) at ¶¶ 1, 7; Pl.'s Resp.
(Dkt. No. 60) at ¶¶ 1, 7.) Vinegar testified that
on October 1, 2014, at around 3:30 to 4:00 p.m., he was
housed in a bullpen with about 50 other inmates when someone
yelled something offensive at one of the lieutenants.
(Id. at ¶ 8.) Defendants Lt. Martin and Lt.
Shaw turned around, walked toward the bullpen, and entered.
(Id. at ¶ 9.)
point, according to Vinegar, Lt. Martin kicked him in the
right thigh. (Id. at ¶ 10.) The encounter was
brief, lasting about 20 seconds, and then Defendants took
Vinegar to a smaller cell. (Id.) Lt. Shaw did not
touch Vinegar during the encounter, but walked behind Lt.
Martin as Vinegar was transported to the smaller holding
cell. (Id. at ¶¶ 11, 17.) Lt. Shaw stood
outside the smaller cell while Lt. Martin struck Vinegar in
the face and kicked him in the left side of Vinegar's
ribs. (Id. at ¶¶ 12, 17.) After a brief
encounter that lasted 10 to 15 seconds, Lt. Shaw instructed
Lt. Martin to stop, and they closed the cell door and walked
away. (Id. at ¶¶ 13, 14.) Vinegar suffered
a bruise on his left thigh and a small contusion on the left
side of his ribs as a result of the incident. (Id.
at ¶ 15.) Vinegar is unaware of any witnesses who saw
what happened between him and Defendants. (Id. at
seeks to recover from Lt. Martin for excessive use of force
and against Lt. Shaw for failing to intervene to prevent that
use of force. (Id. at ¶¶ 18, 19.) Vinegar
seeks injunctive relief, compensatory damages, and punitive
damages. (Id. at ¶ 20.)
challenging Vinegar's version of events, Defendants
present declarations from themselves and Elizabeth Mullin
(“Mullin”), an account technician at Stateville
Correctional Center. Mullin's job responsibilities
include managing, maintaining, and inputting entries into the
timesheets of Illinois Department of Corrections
(“IDOC”) employees at Stateville. (Id.
at ¶¶ 21-22.) Mullin states that Lt. Martin's
2014 timesheet is an official business record of the IDOC,
which was kept and maintained in the ordinary course of
business. (Id. at ¶¶ 23-24.) Entries in
the timesheet are updated daily by account technicians.
(Id. at ¶ 25.) Entries - including those on Lt.
Martin's timesheet - are made at or near the time the
employee's request for time off is approved by the
Overtime Equalization Office at Stateville. (Id. at
¶¶ 26-27.) Based on Mullin's review of Lt.
Martin's timesheet, she avers that on October 1, 2014,
Lt. Martin was not present at Stateville during his regular
shift, as he took a vacation day. (Id. at ¶
Martin's declaration states that he is a correctional
lieutenant at Stateville NRC, in Crest Hill, Illinois.
(See Dkt. No. 67-1, at ¶ 1.). Lt. Martin stated
that he has no independent recollection of Vinegar.
(Id. at ¶ 2.) However, after reviewing the
allegations of Vinegar's amended complaint, Lt. Martin
stated, “at no time did I ever assault, use excessive
force, or attack Inmate Vinegar.” (Id.) Lt.
Martin further stated that he was generally assigned to work
the 3:00 p.m. to 11:00 p.m. shift at the NRC in October 2014.
(Id. at ¶ 3.) But on October 1, 2014, he
“was on vacation and not at Stateville or the
NRC.” (Id.) Lt. Shaw, who is now retired from
the IDOC, also has no independent recollection of Vinegar.
(See Dkt. No. 56-5, at ¶¶ 1-2.) On October
1, 2014, he was assigned to the 3:00 p.m. to 11:00 p.m. shift
at the NRC. (Id. at ¶ 2.) Lt. Shaw also
reviewed the allegations of Vinegar's amended complaint
and denied that he “witnessed, failed to intervene, or
had any knowledge of Lt. Phillip Martin attacking any
has submitted his own declaration, which recounts his version
of events and states that he read the names on
Defendants' name tags during the October 1, 2014,
incident. (Dkt. No. 60, pgs. 7-8, at ¶ 4.) Vinegar
stated that he knows that Lt. Martin was present at the
prison on October 1, 2014, “for the few minutes that I
encountered him.” (Id. at ¶ 9;
see Pl.'s Resp. at ¶ 36 (“I do not
know if Lt. Martin was only at Stateville NRC for a few
minutes, possibly picking up his paycheck or something [.] I
do know that the interactions that I had with him occurred at
3:30-4:00 p.m. on October 1, 2014. He was in his Lt. uniform
and at Stateville during the minutes that he physically
assaulted me.”). He further stated that after the
attack, another correctional officer named Joseph approached
the cell and told Vinegar that Lt. Martin “does this
quite often.” (Id. at ¶ 6.)
also contends that Lt. Martin's timesheet and
Mullin's declaration were not produced to him in
discovery, which Defendants admit. (See Pl.'s
Resp. at ¶¶ 31, 34; Defs.' Reply (Dkt. No. 75),
at ¶¶ 1, 4.) Vinegar also takes issue with certain
aspects of the timesheet itself, including that it appears to
inaccurately indicate that October 1, 2014, was a Sunday, due
to what appears to be the initials
“SU.”(Pl.'s Resp. at ¶ ¶ 32-33.)
Defendants, relying on another declaration from Mullin, state
that the initials “SU” are actually “SD,
” which stands for “shift differential.”
(Defs.' Reply at ¶ 3.)
Vinegar's Motion to Strike
moves to strike Mullin's declaration and Lt. Martin's
timesheet on the basis that they were not disclosed pursuant
to Fed.R.Civ.P. 26(a)(1)(A). Rule 26(a), which governs
required initial disclosures, does not apply to “an
action brought without an attorney by a person in the custody
of the United States, a state, or a state subdivision.”
See Fed. R. Civ. P. 26(a)(1)(B)(iv). Cases brought
by pro se prisoners, then, are exempt from the
automatic disclosure requirement. See Lane v. Corizon
Healthcare, No. 3:13-CV-519 JD, 2013 WL 2566256, at *5
(N.D. Ind. June 11, 2013) (DeGuilio, J.).
Court did not order initial disclosures in this case, nor did
Vinegar submit discovery requests to Defendants. Therefore,
Defendants were not under an obligation to disclose
Mullin's declaration or the timesheet prior to filing
their motion for summary judgment. See London v.
Williams, No. 07-15631, 2009 WL 567883, at *1 (9th Cir.
Mar. 6, 2009) (unpublished) (defendants were not obligated to
disclose an expert witness whose declaration the district
court relied upon in granting summary judgment because
plaintiff was a pro se prisoner, and no trial date
had been set); Munoz v. Burson, No.
2:10-CV-01564-MMD, 2013 WL 149624, at *3 (D. Nev. ...