Williams v. Bierman, 93-1212
| Decision Date | 20 December 1994 |
| Docket Number | No. 93-1212,93-1212 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. James E. WILLIAMS, Plaintiff-Appellant, v. A. G. BIERMAN, James Greer and M. Busch, Defendants-Appellees. . Submitted: |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before FAIRCHILD, FLAUM and KANNE, Circuit Judges.
As a prisoner at Menard Correctional Center, an Illinois state prison, James Williams filed a complaint against various prison officials alleging violations of his Fifth, Eighth, Ninth and Fourteenth Amendments. Specifically, he charged that prison officials violated his constitutional rights by (1) making him wear coveralls that were damaging to his health for approximately three weeks after they misplaced his clothes; (2) denying him outside exercise for two weeks; (3) denying him medical treatment for dizziness, nausea, a rash, burning, itching, swelling, and pain caused by inadequate ventilation in his cell and the coveralls, and for pre-existing ailments; (4) removing and not replacing his cleaning materials; and (5) intentionally placing him in a "control segregation cell" 1 for approximately six weeks without due process and for the purpose of subjecting him to an environment of extreme heat and inadequate ventilation. Williams asserts that the aforementioned conduct was done in retaliation for a state court action that he filed against prison officials. Williams sought actual and punitive damages and injunctive and declaratory relief.
Prior to the filing of the defendants' answer, Williams filed a demand for a jury trial that the district court denied as untimely. The district court referred the case to a magistrate judge and at the magistrate judge's recommendation, the district court appointed counsel for Williams. Subsequently, the magistrate judge submitted a report recommending that the district court grant the defendants' motion for summary judgment on all issues except the inadequacy of the ventilation. The magistrate judge's report recommended denial of the defendants' motion for summary judgment on the ventilation issue because the defendants had not addressed this claim. Williams did not file any objections to the report, and the district court, accordingly, not needing to conduct a de novo review, see 28 U.S.C. Sec. 636(b), adopted the magistrate's report. The defendants then filed a supplemental motion for summary judgment on the issue of the adequacy of the ventilation. The magistrate judge recommended that the defendants' supplemental motion for summary judgment be granted and the district court adopted this recommendation. Williams appeals from both orders, as well as from the denial of his jury demand as untimely and from what he describes as denial of his motion for reappointment of counsel. 2
After reviewing the record de novo, Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), we AFFIRM for the reasons stated in the district court's orders of May 23rd, 1991 and December 16, 1992. The issue of the denial of Williams' demand for a jury trial is moot.
-vs-
A.G. Bierman, James Greer, and M. Busch, Defendants.
This matter is before the court on the Report and Recommendation (Doc. 109) filed by Magistrate Judge Gerald Cohn recommending that Defendants' Supplemental Motion for Summary Judgment (Doc. 95) be granted. The Plaintiff has filed a timely Objection thereto (Doc. 110).
The remaining issue in this suit is whether Cell 847 in the segregation unit at Menard Correctional Center was adequately ventilated during the period from July 13, 1988 to August 25, 1988. The Plaintiff was placed in Cell 847 during this time period and alleges that he became ill when the lack of adequate ventilation caused the temperature in his cell to become unbearably high.
A grant of summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wainwright Bank and Trust Co. v. Railroad Mens' Federal Savings and Loan, 806 F.2d 146, 149 (7th Cir. 1986). To preclude summary judgment, the non-moving party must show the disputed fact to be outcome determinative under the applicable law. Id. However, the mere existence of a disputed fact is not, in and of itself, enough to withstand a motion for summary judgment. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[T]he test for summary judgment is whether sufficient evidence exists in the pre-trial record to allow the non-moving party to survive a motion for directed verdict." Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476 (7th Cir.), cert. denied, 488 U.S. 852 (1988).
In support of their Supplemental Motion for Summary Judgment, the Defendants have submitted the affidavit of Arlen Cierfer, the Chief Engineer at Menard Correctional Center, which states that "each and every closed front cell located in the Menard Correctional Center has the same ventilation system." Also submitted are tests results from ventilation tests conducted on the solid front cells in the North Cell House where the segregation unit is located. The first test results show that in 1983 the air flow measured 83 cubic feet per minute (CFM). The second test shows that in 1987 the air flow measured 50 CFM or more. The third test, conducted on June 28, 1989, shows that a ventilation analysis of Cell 854 measured an air flow of 52 CFM. The Defendants have also submitted a copy of the American Correctional Association Standards for Adult Correctional Institutions which requires cells to have circulation of at least 10 CFM.
The Plaintiff counters the Defendants' evidence in support of their Supplemental Motion for Summary Judgment with two affidavits. The Plaintiff's first affidavit states that there was an exhaust fan near Cell 854 at the time the 1989 test was conducted which has no effect on Cell 847. The Plaintiff's second affidavit states that from July 13, 1988 to August 25, 1988 two exhaust fans were positioned 30-35 yards from Cell 847 in either direction.
Rule 56(e) provides in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but 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. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
The Defendants' evidence shows that in 1983 and 1986 ventilation in the segregation unit was adequate and that all cells in the segregation have the same ventilation system. The Plaintiff challenges these tests in his brief by stating that the tests are irrelevant because they were taken prior to 1988. Besides being in the wrong format to successfully challenge a Motion for Summary Judgment, the Plaintiff's brief does not state why these earlier tests are irrelevant. There are no allegations that the ventilation system had been changed in the relevant time period or that some other event occurred making the tests irrelevant. For this reason, the Defendants' Supplemental Motion for Summary Judgment will be granted.
Accordingly, the Magistrate Judge's Report and Recommendation (Doc. 109) is adopted, and the Defendants' Supplemental Motion for Summary Judgment (Doc. 95) is granted.
IT IS SO ORDERED.
DATED: This 16 day of Dec, 1992.
ORDER
The magistrate has submitted a Report and Recommendation (Doc. No. 77 ) to which no timely objections have been filed, therefore the court need not conduct a de novo review; 28 U.S.C. Sec.636(b); based upon the magistrate's reasoning, the court adopts the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435; Video Views Inc., v. Studio 21, Ltd., and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).
For the reasons set forth in the Magistrate's Report and Recommendation, defendant James Greer's motion for summary judgment is granted as to all claims against him and defendants Bierman and Busch's motion for summary judgment is granted as to all claims against them except the claim relating to being placed in a cell with inadequate ventilation during the summer.
IT IS SO ORDERED.
DATED: This 23rd day of May, 1991.
REPORT AND RECOMMENDATION
This Report and Recommendation is respectfully submitted to Judge William L. Beatty pursuant to 28 U.S.C. Sec. 636(b)(1)(B).
Plaintiff, an inmate at the Menard Correctional Center, filed a civil rights Complaint pursuant to 42 U.S.C. Sec. 1983 on August 16, 1988.
Before the Court is defendants' Motion for Summary Judgment, filed with supporting memorandum, affidavits and exhibits on September 18, 1990, pursuant to Fed. R. Civ. P. 56(b). A hearing was held on this motion on January 25, 1991.
The task before this Court is necessarily a limited one when ruling on a motion for summary judgment. It has been firmly established by the Seventh Circuit that a grant of summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wainwright Bank and Trust Co. v. Railroadmen's Federal Savings and Loan, 806 F.2d 146, 149 (7th Cir. 1986). Furthermore, to preclude summary judgment, the non-moving party must show the disputed fact to be outcome determinative under the applicable law. Id. at 149. The burden is upon the moving party to show, on the basis of the pleadings and supporting...
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