United States District Court, S.D. Illinois
REPORT AND RECOMMENDATIONS
A. BEATTY UNITED STATES MAGISTRATE JUDGE
matter has been referred to United States Magistrate Judge
Mark A. Beatty by United States District Judge Nancy J.
Rosenstengel pursuant to 28 U.S.C. § 636(b)(1)(B),
Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a)
for a Report and Recommendation on the motion for summary
judgment (Doc. 66). It is recommended the District Court
adopt the following findings of fact and conclusions of law,
and the motion for summary judgment (Doc. 66) be
GRANTED IN PART, DENIED IN PART.
Findings of Fact
the Court's threshold review of Plaintiff's complaint
pursuant to 28 U.S.C. § 1915A, the Court permitted
Plaintiff to proceed on the following claims: (1) an Eighth
Amendment claim for excessive force against Defendant
Gardiner, (2) an Eighth Amendment claim for failure to
protect against Defendant Barker, (3) an Eighth Amendment
claim for deliberate indifference against Defendants Gardiner
and Barker (“Defendants”), and (4) an assault and
battery state law tort claim against Defendants. Defendants
filed a motion for summary judgment on March 20, 2019 (Doc.
66). Plaintiff filed a response in opposition to the motion
in the light most favorable to Plaintiff, the evidence and
the reasonable inferences that can be drawn from it establish
the following relevant facts for purposes of the instant
summary judgment motion.
Transfer of Cells and Alleged Assault
8, 2016, Plaintiff was incarcerated at Menard Correctional
Center (“Menard”) when personnel transferred him
from 4 gallery of the north 2 cell house to the 6 gallery of
the north 2 cell house (Doc. 67-1, p. 17: 13-16). Plaintiff
asserts Defendants, along with a few other non-defendant
correctional officers approached Plaintiff's cell and
instructed him to pack his property because he was being
transferred to a different segregation cell (Id. at
20: 3-8; 33: 14-16). After packing his property for an hour,
correctional officers, possibly Defendant Gardiner, placed
Plaintiff in handcuffs behind his back, gathered his
belongings, and escorted him to 6 gallery.
arriving at cell 47 on 6 gallery, Plaintiff testified after
his handcuffs were removed, Defendant Gardiner pulled down
his pants and “stuck his finger in [him].”
(Id. at 26: 11-12). Plaintiff later testified his
handcuffs were not removed until Defendant “[Gardiner]
got aggressive when he pulled my boxers down and inserted his
fingers into me.” (Id. at 43: 21-23). When
asked where the other correctional officers were at the time
of the alleged assault, Plaintiff testified they were
“standing right there.” (Id. at 62: 2).
Plaintiff later testified Defendant Gardiner and the other
three or four correctional officers were not inside the cell
during the alleged assault, but instead were outside of the
cell and reaching their hands through the chuckhole to grab
him (Id. at 67: 14-19). The cell door was solid with
no bars, so reaching through the chuckhole was the only way
for the four or five officers to grab Plaintiff at that point
(Id. at 81: 4-12).
then testified that while the officers were holding Plaintiff
by the lead chain attached to his handcuffs, Defendant
Gardiner, who was also outside the cell, reached through the
chuckhole, pulled down Plaintiff's pants, and inserted
his fingers into Plaintiff's anus three or four times.
(Id. at 81: 24). During that time, Plaintiff
testified his hands were in the chuckhole and he was trying
to get away. (Id. at 91: 4-23).
After the Alleged Assault
testified he immediately informed the officers he required
medical attention (Id. at 96: 14-21). He also
testified he spoke to a nurse several hours later about his
need for medical attention and was still bleeding at that
time (Id. at 101:14-20). Around 3 p.m.,
Plaintiff's correctional counselor, Jason Vasquez, spoke
with Plaintiff then noted in Plaintiff's cumulative
counseling report that “[Plaintiff] wanted to talk to
Dr. Butler cause [sic] he is back in seg . . . I told him I
would tell her . . . I called and let her know.” (Doc.
67-7, p. 13). The counseling note does not mention the
alleged assault (Id.).
12, Plaintiff filed a grievance regarding his conditions of
confinement and the alleged sexual assault by Defendants
Gardiner and Barker (Doc. 67-4, p. 11). The grievance
predominantly takes issue with his ability to breathe within
his cell and requests a transfer to Dixon Correctional Center
(“Dixon”), but it does briefly reference a sexual
assault (Id. at 11-13). Specifically, within the
two-page grievance, Plaintiff solely states Defendants Barker
and Gardiner “sexually assaulted [him].” Beyond
naming the alleged perpetrators, Plaintiff does not provide
any other details about the alleged assault. On July 13,
Menard medical conferred with Plaintiff then noted in an
outpatient progress note that “offender does not have
an inhaler in his cell.” (Doc. 67-5, p. 2). The note
does reference the alleged assault. In a letter dated July
17, Plaintiff wrote the Director of the IDOC seeking transfer
from Menard to Dixon (Doc. 67-4, p. 6-8). Again, like his
July 12 grievance, the letter predominantly takes issue with
his ability to breathe within his cell and requests a
transfer to Dixon (Id.). Plaintiff solely states
staff “sexually assaulted [him].” (Id.
at 8). Beyond that, Plaintiff does not provide any other
details about the alleged assault.
27, the Administrative Review Board (“ARB”)
contacted Menard officials about Plaintiff's claim of
sexual assault then Menard mental health and medical
personnel conferred with Plaintiff that day (Doc. 67-5, p.
2). After meeting with Plaintiff, Menard medical personnel
noted in an outpatient progress note that Plaintiff stated,
“I don't want a rape kit.” (Id.).
The entry further notes Plaintiff signed a ‘right to
refuse' medical services (Id.). Plaintiff
testified he did not refuse treatment, but rather medical
personnel told him “it's too late for you pretty
much to do a rape kit if they didn't do it the same
day.” (Doc. 67-1, 138: 9-12). That same day IDOC
records indicate an investigation into Plaintiffs sexual
assault allegations commenced (Doc. 67-6). Five days later,
IDOC personnel transferred Plaintiff from Menard to Dixon
which pleased Plaintiff (Doc. 67-1, 127: 2-9).
Conclusions of Law