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Bowers v. Dart

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

February 13, 2018

Marque Bowers, Plaintiff,
v.
Thomas Dart, Sheriff of Cook County, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          MANISH S. SHAH UNITED STATES DISTRICT JUDGE.

         Plaintiff Marque Bowers brings this action against defendant Thomas Dart, in his official capacity as Sheriff of Cook County. Bowers was in custody at the Cook County Jail when several inmates attacked him. Defendant moves for summary judgment on Bowers's claim that the Sheriff's policy of vertical cross-watching was unconstitutional under 42 U.S.C. § 1983, and that it caused Bowers's injuries. Defendant also moves for sanctions against Bowers and his counsel. For the following reasons, the motion for summary judgment is granted in part, denied in part, and the motion for sanctions is denied.

         I. Legal Standards

         Summary judgment is appropriate 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). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Roh v. Starbucks Corp., 2018 WL 663093, at *2 (7th Cir. 2018).

         II. Background

         On December 31, 2012, Bowers and his cellmate got into a fight in their cell, while a vertical cross-watching policy was in effect. [126] ¶ 26.[1] Vertical cross-watching was a plan to reduce overtime by having the first-floor officers assigned to the tiers of the housing blocks continuously rotate upwards through the housing blocks, while officers normally assigned to those tiers would take their lunch breaks. [117] ¶¶ 20-21. Later in the evening of December 31, 2012, several inmates attacked Bowers in the hallway. [126] ¶ 28; [113-1] at 32, 123:23-124:4. Bowers is paralyzed and unable to walk because of the attack. [113-1] at 25, 96:7-11. The hallway attack occurred while Officer Steven Rottar was approximately twenty-feet away in “the bubble.” [126] ¶ 28; [113-1] at 32, 123:23-124:9; [113-3] at 33, 122:20- 23. Bars and electrical panels separate the bubble from the dayroom and the hallway, but otherwise, there are minimal obstructions of view or sound. [117] ¶¶ 14-16. Both Bowers and Rottar claim to have personal knowledge of the attack in the hallway, but their accounts of what happened differ.

         Bowers says that at approximately 6:00 or 6:30 pm, he told Rottar that he had been in a physical fight with his cellmate.[2] [113-1] at 23, 86:10-89:10. Bowers felt he was in danger because he believed that members of his cellmate's gang were going to attack him; Bowers asked Rottar to separate him from his cellmate and to be moved to a different cell. Id. Bowers said that Rottar had already been informed of the situation by other officers, and that Rottar inquired about a move for Bowers, but that a move was not possible that night. Id. Bowers says that although Rottar was in the bubble at the time of the second attack in the hallway, Rottar did not see the attack until after the inmates had already badly beaten Bowers. Id. at 32, 124:4-125:6. Since Rottar did not see the fight “from the beginning, ” Bowers thinks that he was not “on his job and doing his duty.” Id. at 33, 128:9-12. Bowers said he screamed for help for several minutes and since Rottar's reaction to the attack was delayed, Bowers concludes that Rottar was either not paying attention or he ignored the attack. Id. at 34, 130:3-16. Moreover, Bowers says it is Rottar's fault for not moving Bowers earlier that night, before the hallway attack occurred. Id. at 34, 130:15-16.

         By contrast, Rottar says that he was sitting at the officer's desk in the bubble when he heard a fight, stood up, looked into the dayroom, and saw a mass of bodies, which he understood to be a fight, in the hallway near the dayroom. [113-3] at 32, 120:16-121:16. He watched the “mass of bodies” for one to two seconds before making a call on the radio about the fight. Id. at 32-33, 121:21-122:7. After Rottar made the radio call, he saw the mass of bodies break up and the inmates who were involved in the attack scattered into the hallway. Id. at 33, 122:16-123:14. Correctional staff arrived approximately two minutes after Rottar made the radio call. Id. at 33, 125:10-17. Rottar says he learned about Bowers's earlier fight with his cellmate after Bowers was attacked in the hallway. Id. at 26, 96:16-98:23. In his incident report, Rottar wrote: “the fight that [the responding officer] called at [8:40 pm] had its beginnings while [the responding officer] was gone and [the responding officer's] tier was covered by the vertical relief officer.” [126] ¶ 27. Rottar also opined: “the fight that developed later was a direct result of these action[s], and no officer had been present to intervene. This situation proves to a certain extent, that the detainees can and will take advantage of the fact that officers are not on the tiers for the full 8 hours.” Id.

         Bowers submitted a grievance dated January 3, 2013, in which he asked to “press charges on all of the people who were identified for assaulting [him]” on December 31, 2012. [40-3] at 2. Commander Cozzolino responded to that grievance: “Inmate Bowers identified two inmates as his attackers. . . . CCSPD will contact [Bowers] to press charges for the incident.” Id. at 3. Bowers was displeased with that response, so he requested an appeal on February 13, 2013, stating: “I identified (7) inmates total. Why only two of them are getting charged?! And not the other five?!” Id. Director of Program Services, Theresa Olson, rejected Bowers's request for an appeal, explaining: “According to incident report, when you were questioned re: the incident, you only identified two attackers.” Id. Bowers received the rejection of his appeal on February 26, 2013. Id. That same day, Bowers submitted another grievance, which he described as “in lieu of and conjunction with” his first grievance. [40-2] at 32. Program Services processed Bowers's second grievance as a “non-grievance.” Id. Olson responded to the non-grievance: “Your allegations are currently under investigation by the Office of Professional Review, ”[3] and Bowers received her response on April 17, 2013. Id. at 33.

         The Inmate Information Handbook describes the grievance process, but it does not define a non-grievance. [126] ¶ 1. There is no Sheriff's Order, General Order, or other written document that describes how a non-grievance is processed. [117] at 44, 46:20-47:2. Olson says that inmates cannot amend grievances; they can only file a new grievance. Id. at 49, 65:22-66:9. Yet, when a grievance is filed fifteen days after the relevant incident, even if the purpose of that grievance is to provide more information about an incident described in an earlier grievance, Program Services processes it as a “non-grievance.” Id. at 49, 66:11-17. Olson also says that inmates may not appeal non-grievances. Id. at 46, 54:14-55:7. Even though there was no action that Bowers could take regarding the response to his non-grievance (respond, appeal, etc.) that Program Services would accept, Olson says that the content of Bowers's non-grievance prompted Program Services to refer Bowers's first grievance to OPR. Id. at 49, 67:13-68:6. Ultimately, OPR issued a written decision exonerating Rottar of any charges of misconduct related to the hallway attack and Bowers's first grievance. [117] at 97.

         III. Analysis

         Defendant offers two bases for his motion for summary judgment. First, that there is insufficient evidence to show that the cross-watching policy caused Bowers's injuries. Second, that the statute of limitations bars Bowers's claim.

         A. Evidence of Causation

         To prevail on a Monell claim against defendant, Bowers must demonstrate that an official policy, widespread custom, or action by an official with policy-making authority was the “moving force” behind his constitutional injury. Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir. 2016). His theory is that the cross-watching policy caused his injuries. While defendant acknowledges that the cross-watching policy was in place on the day Bowers was attacked, defendant nevertheless ...


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