Roberts v. Samardvich

• Decision Date: 21 November 1995
• Docket Number: No. 3:93cv0760 AS.,3:93cv0760 AS.
• Citation: 909 F. Supp. 594
• Parties: George Charles ROBERTS, Jr., Plaintiff, v. Ronald SAMARDVICH, Gregory Goodman, Steven Gallegos, Charles Stang, Frank Egolf, Mark Smith, Gary Warre, Mike Taylor, Matthew Hamilton, Nell Hayes, Charles Wright, and Charles Motley, in their individual and official capacities, Defendants.
• Court: U.S. District Court — Northern District of Indiana

909 F. Supp. 594

George Charles ROBERTS, Jr., Plaintiff, v. Ronald SAMARDVICH, Gregory Goodman, Steven Gallegos, Charles Stang, Frank Egolf, Mark Smith, Gary Warre, Mike Taylor, Matthew Hamilton, Nell Hayes, Charles Wright, and Charles Motley, in their individual and official capacities, Defendants.

No. 3:93cv0760 AS.

United States District Court, N.D. Indiana, South Bend Division.

November 21, 1995.

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George Charles Roberts, Jr., Westville, IN, pro se.

Seth M. Lahn, Suzann W. Lupton, Office of Indiana Attorney General, Indianapolis, IN, for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

The complaint in this case was filed by this pro se plaintiff, George Charles Roberts, an inmate at the Maximum Control Complex, in Westville, Indiana, purporting to state a claim under 42 U.S.C. § 1983, and invoking this court's federal question subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(3). The motion for summary judgment filed by the defendants, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). Magistrate Judge Pierce has filed his Report and Recommendation on October 26, 1995. He deserves high praise for the very careful and thorough manner in which he has approached this case. Magistrate Judge Pierce is entirely correct that damage claims against these defendants in their official capacities are foreclosed by the Eleventh Amendment of the Constitution of the United States. In their official capacities, each of the state defendants are entitled to immunity for claims for money damages under the Eleventh Amendment to the Constitution of the United States. The Eleventh Amendment states as follows:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

See Kashani v. Purdue University, 813 F.2d 843 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); Owen v. Lash, 682 F.2d 648 (7th Cir.1982); Sheets v. Indiana Department of Corrections, 656 F.Supp. 733 (S.D.Ind.1986). For recent authority consistent with Kashani, 813 F.2d at 843, see Shelton v. Trustees of Indiana University, 891 F.2d 165 (7th Cir.1989). See also Kroll v. Board of Trustees of the University of Illinois, 934 F.2d 904 (7th Cir.1991); Cosby v. Jackson, 741 F.Supp. 740 (N.D.Ill.1990), and Rodenbeck v. Indiana, Leaking Underground Storage Tank Div. etc., 742 F.Supp. 1442 (N.D.Ind.1990). Any and all damage claims against the defendants in their official capacities are now DISMISSED under the mandates of the Eleventh Amendment of the Constitution. Thus, the defendants are immune from damages claims in their official capacities, but that does not end the story here. Given the seminal case of Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), this plaintiff is going to be hard pressed to make any kind of viable claim against the defendant Wright. To that extent, Magistrate Judge Pierce is again correct that that complaint should be dismissed by summary judgment in favor of the defendant Charles Wright and against the plaintiff. Each party will bear its own costs.

Certainly one of the beginning points for any case under 42 U.S.C. § 1983 is Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Beyond that, a prisoner must in this particular case invoke the present teaching under the Eighth Amendment of the Constitution of the United States which is bound up in the concept of deliberate indifference. This concept first saw the judicial light of day in the Eighth Amendment context in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and most recently in Farmer v. Brennan, ___ U.S. ___, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). There is now a considerable bundle of progeny of Farmer in this district, including Sellers v. Henman, 41 F.3d 1100 (7th Cir.1994), and Del Raine v. Williford, 32 F.3d 1024 (7th Cir.1994). It is not an easy area of the law to deal with either at the Court of Appeals or the district court level, and Magistrate Judge Pierce reflects those difficulties in his carefully crafted 19-page recommendation. He is entirely correct with reference to summary judgment being granted against the defendant Charles Wright, Ronald Samardvich, Frank Egolf, Mark Smith, Gary Ware, Matthew Hamilton, Gregory Goodman, Steven Gallegos, Charles Stang, and Nell Hayes.

The excessive force claim against defendant Frank Egolf appears to present issues of fact that under the Seventh Amendment of the Constitution of the United States must be resolved by a jury as a trier of fact. This court will seriously consider attempting to secure appointed counsel for any such trial and will likely schedule the same in Lafayette, Indiana as soon as the court's calendar permits. IT IS SO ORDERED.

REPORT AND RECOMMENDATION

PIERCE, United States Magistrate Judge.

The plaintiff, George Charles Roberts, Jr., brings this action under 42 U.S.C. § 1983 against employees of the Maximum Control Complex ("MCC") in Westville, Indiana, in their official and individual capacities, alleging that they violated his Eighth Amendment rights by excessive use of force and deliberate indifference to his serious medical needs. Roberts alleges that defendants Goodman and Samardvich used force against him without provocation and that defendant Gallegos observed the use of force but failed to intervene. He alleges that defendants Egolf, Smith, Hamilton, and Ware, supervised by defendant Stang, used excessive force against him during a cell extraction. Roberts alleges that defendant Hayes blocked his efforts to secure medical care and that defendant Wright allowed the excessive use of force against him and prisoners at the MCC (Compl. ¶ IV.).

This cause is presently before the court on a motion for summary judgment filed by defendants Charles Wright, Ronald Samardvich, Frank Egolf, Mark Smith, Gary Ware, Matthew Hamilton, Gregory Goodman, Steven Gallegos, Charles Stang, and Nell Hayes (collectively "the defendants"), and the plaintiff's motion to reschedule the jury trial. For the reasons which follow, the court will recommend that the defendants' motion be denied with respect to the excessive use of force claim against defendant Egolf, and granted in all other respects. The court will also recommend that the plaintiff's motion to reschedule the jury trial be granted.

Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for the motion, and identifying "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). This burden "may be discharged by `showing' —that is pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. at 2554. Rule 56 imposes no requirement on the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. at 2549; John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir.1994); Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990).

Once a properly supported motion for summary judgment is made, the party that bears the burden of proof on a particular issue at trial cannot resist the motion by merely resting on its pleadings. Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Rather, as Fed.R.Civ.P. 56(e) makes clear, "The adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994); Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir.1994); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir.1994).

"The plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552; Jean v. Dugan, 20 F.3d 255, 260 (7th Cir.1994). The nonmoving party must do more than demonstrate "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted); Griffin v. Air Line Pilots Ass'n, Intern., 32 F.3d 1079, 1084 (7th Cir.1994); Bostic v. City of Chicago, 981 F.2d 965, 969 (7th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 3038, 125 L.Ed.2d 725 (1993). Conclusory statements or indications of opinion or belief offered without any factual support are also insufficient to create a genuine issue of fact. Rand v. CF Indus., Inc., 42 F.3d 1139, 1146 (7th Cir.1994) ("Inferences and opinions must be grounded on more than flights of...