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Vinegar v. Martin

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

December 1, 2017

Cornell Vinegar A-70723, Plaintiff,
Phillip Martin, et al., Defendants.


          Charles P. Kocoras, United States District Court Judge

         Plaintiff 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 order.


         I. Factual Background

         The following facts are taken from the parties' N.D.Ill. Local Rule 56.1 Statements of Material Facts (“SOF”).[1] 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.)

         At that 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 ¶ 16.)

         Vinegar 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.)

         In 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 ¶ 29.)

         Lt. Martin's declaration[2] 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 inmate.” (Id.)

         Vinegar 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.)

         Vinegar 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.”[3](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.)

         II. Vinegar's Motion to Strike

         Vinegar 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.).

         The 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. ...

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