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Phelps v. Phillips

United States District Court, S.D. Illinois

March 28, 2018

KEVIN PHELPS, #K78191 Plaintiff,
v.
C/O PHILLIPS and S.A. GODINEZ, Defendants.

          MEMORANDUM AND ORDER

          STEPHEN C. WILLIAMS United States Magistrate Judge

         I. Introduction

         Pro se Plaintiff Kevin Phelps, an inmate currently incarcerated at Lawrence Correctional Center, brought the present lawsuit pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and/or Rehabilitation Act (“RA”), 29 U.S.C. §§ 794-94e based on an incident that occurred while he was incarcerated at Pinckneyville Correctional Center. (Doc. 1). Plaintiff alleges constitutional violations on the part of the Defendants' failure to protect him against an attack by another inmate, despite prior knowledge that an assault was likely. Plaintiff also alleges ADA and/or RA violations claiming that Defendants discriminated against him and failed to accommodate him due to his disability. Both counts brought by Plaintiff in his initial Complaint survived the Court's merits review (Doc. 10, p. 9), but Count 1 was only allowed to proceed against Defendant Phillips and Count 2 was only allowed to proceed against Defendant Godinez in his official capacity. (Id.). This matter is now before the Court on Defendants' Motion for Summary Judgment (Doc. 86).

         As a preliminary matter, a discussion of Plaintiff's counsel's actions is pertinent to to the Court's consideration of Plaintiff's response to the summary judgment motion. On February 18, 2015, the undersigned appointed counsel to represent Plaintiff Phelps. (Doc. 40). Counsel was to enter her appearance no later than February 25, 2015. (Id. at 2) Rather than following the Court's directive, without having entered her appearance, on January 14, 2016, counsel filed a motion seeking to withdraw as counsel for Plaintiff on the grounds that she failed to renew her admission to the bar for this district court. (Doc. 49). That motion was denied, and the Court allowed her to continue to represent Plaintiff even though she had failed to renew her admission. (Doc. 50). Assigned counsel still did not file her notice of appearance.

         Roughly two months later, the Court entered an Order to Show Cause that was at that time being entered as a matter of routine in cases where counsel had failed to renew admission to this bar. The order directed assigned counsel to show cause why she should not be removed from the case for failure to renew. (Doc. 51). Counsel responded by indicating that she did not intend to renew and sought to withdraw from this matter. (Doc. 52). The undersigned, however, deemed the show cause order satisfied, indicating that counsel had previously been allowed to represent Plaintiff, and that she “will be permitted to continue representing Plaintiff.” (Doc. 53). Counsel still did not enter her appearance.

         On July 15, 2016, Defendants filed a motion for summary judgment. (Doc. 62). No. response to this motion was filed, and on November 16, 2016, the Court entered an order noting that it had never granted counsel leave to withdraw and setting a December 16, 2016 deadline for assigned counsel to respond to the summary judgment motion and to enter her appearance. (Doc. 65). The Court was later informed that counsel did not receive notice of the November 16th order, as she had moved to a different law firm and had failed to update her contact information with the Court.

         On January 17, 2017, counsel finally entered her appearance on behalf of Plaintiff and sought an extension of time to respond to the summary judgment motion. (Docs. 67, 68). The motion was granted on February 8, 2017, and because the parties were to conduct additional discovery, Defendants were allowed to file an amended summary judgment motion. (Doc. 80).

         Defendants re-filed their summary judgment motion, the motion now before the Court, on May 22, 2017, and the Court set the motion for a hearing on July 13th. (Docs. 86, 88). By July 5th, no response had been filed, which prompted the Court to cancel the hearing. (Doc. 89). The Court indicated that due to the failure to respond, Plaintiff would be deemed to have admitted to the merits of the motion in accordance with Local Rule 7.1(g). Plaintiff then filed a Motion to Alter Judgment and a Memorandum in Support. (Docs. 90, 91). Since the Court had not entered judgment, it mooted the motion; however, it indicated that it would consider the motion and memorandum in support as a response to the summary judgment motion. (Doc. 92).

         Turning to the summary judgment motion, Defendants assert that they are entitled to judgment as a matter of law on all counts. For the reasons set forth below, the Court GRANTS Defendants' Motion for Summary Judgment (Doc. 62).

         II. Factual Background

         Plaintiff's suit stems from an incident that occurred on July 6, 2013 when Plaintiff was incarcerated at Pinckneyville Correctional Center. On that date Plaintiff was confined in cell R1-B-16. (Doc. 87-2, p. 3). According to Larue Love, who was employed in the position of Assistant Warden of Programs at Pinckneyville Correctional Center, the cell in which Plaintiff was housed was wheelchair accessible and provided accommodations in compliance with the ADA. (Doc. 87, p. 4). Such wheelchair-accessible cells are larger in size than other general population cells. (Id.). Wheelchair-accessible cells are 131.125 square feet in size, and have a wider entryway, amenities positioned lower to the ground, and support bars on the walls. (Id.). General population cells that are not wheelchair accessible are 57.375 square feet in size, and do not have the added accommodations that wheelchair-accessible cells have. (Id.).

         On July 6, 2013, inmates Charlie Moreno, Donnell Clark, and Lester Aldridge were housed in the same cell as Plaintiff. (See Doc. 87-3, p. 1 - 2). Moreno and Clark were assigned as Housing Unit Attendants where they were to assist inmates with disabilities with a variety of tasks. (Id. at 6 - 7; Doc. 87-2, p. 2). On July 6, 2013, Defendant Phillips was assigned to the R1 cell house during the 3 p.m. to 11 p.m. shift. (Doc. 87-1, p. 1).

         At roughly 10:30 p.m., Defendant Phillips went to Plaintiff's cell in response to the emergency call button being activated from within the cell. (Id. at 2). According to Defendant Phillips, when he arrived at Plaintiff's cell, he was informed that Plaintiff and inmate Moreno were having problems with one another, and inmate Moreno told Defendant Phillips that he was going to hit Plaintiff if they were not separated. (Id.). Defendant Phillips indicates that he then called the zone lieutenant, but before the lieutenant arrived, Moreno punched Plaintiff and threw him out of the wheelchair. (Id.). Phillips then called a “10-10, ” which is the radio code for an emergency. (Id.). Other security staff responded and Plaintiff and inmate Moreno were separated and placed on investigative segregative status. (Id.).

         The only “record” cited to by Plaintiff in his response is his Complaint. Plaintiff provides no evidence in opposition to the motion. According to the allegations in Plaintiff's complaint, when Defendant Phillips arrived at Plaintiff's cell, Plaintiff told Phillips that another inmate was threatening to harm him, and asked Phillips to remove one of them from the cell. (Doc. 1, p. 5). Plaintiff also requested that Phillips call for a Lieutenant; however, according to Plaintiff, Phillips refused, stating that everyone was getting ready to go home. (Id. at 5 - 6). After telling Phillips that he was afraid for his safety, Phillips told Plaintiff, “you're a big boy, you can handle the ass-kicking.” (Id. at 6). According to Plaintiff, the other inmate then asked if Phillips was going to move either one of the inmates, and the defendant stated “I ain't moving nobody[.] [I]f you going to do something, do it.” (Id.). The other inmate then told Phillips that he was going to assault Plaintiff, and Phillips responded by saying “I've been standing here for about 15 minutes and you ain't did shit.” (Id.). At that point, Plaintiff was ...


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