# McCray v. Sage

> District Court, N.D. Illinois · September 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10147610

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** September 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Tory McCray (M-10384), )
)
Plaintiff, )
) Case No. 20 C 2497
v. )
) Judge John Robert Blakey
T. Sage, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Tory McCray, a state prisoner in custody at Menard Correctional
Center, sues Defendants Sage, Gallagher, Hernandez, Perez, and Ciukaj pro se
pursuant to 42 U.S.C. § 1983, alleging that they subjected him to excessive force on
February 2, 2020, while he was in custody at the Cook County Jail. Defendants move
for summary judgment, arguing that the evidence in the record undermines
Plaintiff’s excessive force claim and establishes that Defendant Ciukaj had no
personal involvement in the use of force; Defendants also argue that they are entitled
to qualified immunity. See [49]. For the reasons stated below, the Court grants in
part, and denies in part, Defendants’ motion.
I. Summary Judgement Standard
Summary judgment is appropriate under Federal Rule of Civil Procedure 56(a)
“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); Celotex Corp
v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact is not
demonstrated by the mere existence of “some alleged factual dispute between the
parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Rather, a genuine issue of material facts exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Estate of Simpson
v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). A
fact is material if it might affect the outcome of the suit. First Ind. Bank v. Baker,
957 F.2d 506, 508 (7th Cir. 1992).
The moving party bears the initial burden of demonstrating the lack of any

genuine issue of material fact. Celotex, 477 U.S. at 323. Once the party moving for
summary judgment demonstrates the absence of a disputed issue of material fact,
“the burden shifts to the non-moving party to provide evidence of specific facts
creating a genuine dispute.” Carrol v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The
non-movant must go beyond the pleadings and “set forth specific facts showing that
there is a genuine issue for trial.” Hannemann v. Southern Door Cty Sch. Dist., 673
F.3d 746, 751 (7th Cir. 2012). Thus, “‘summary judgment must be entered “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.”’ Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992) (quoting Celotex, 477 U.S.
at 322 (1986)); Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027, 1032 (7th Cir.
2019).
When deciding a motion for summary judgment, the Court views the facts in
the light most favorable to, and draws all reasonable inferences in favor of, the
nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th
Cir. 2013) (citation omitted).

II. Local Rule 56.1
Local Rule 56.1 governs the procedures for filing and responding to motions for
summary judgment in this district. The rule aids the district court, “which does not
have the advantage of the parties’ familiarity with the record and often cannot afford
to spend the time combing the record to locate the relevant information, in
determining whether a trial is necessary.” Delapaz v. Richardson, 634 F.3d 895, 899

(7th Cir. 2011) (citation omitted.) The Rule requires the moving party to provide a
statement of material facts and to support each asserted fact with specific evidentiary
material by citation, including the specific page number. LR 56.1(a), (d). The court
may disregard any asserted fact that is not supported with such a citation. LR
56.1(d)(2).
The opposing party must then respond to the movant’s proposed statements of
fact. Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); LR

56.1(e). In the case of any disagreement, “a party must cite specific evidentiary
material that controverts the fact and must concisely explain how the cited material
controverts the asserted fact. Asserted facts may be deemed admitted if not
controverted with specific citations to evidentiary material.” LR 56.1(e)(3). Mere
disagreement remains “inadequate if made without reference to specific supporting
material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). The party opposing
summary judgment may also submit “a statement of additional material facts that
complies with LR 56.1(d).” LR 56.1(b)(3). A plaintiff’s pro se status does not excuse
him from complying with Local Rule 56.1. See Cady v. Sheahan, 467 F.3d 1057, 1061

(7th Cir. 2006).
Consistent with the local rules, Defendants filed a Rule 56.1 statement of
material facts with their motion for summary judgment, [51], and they also provided
Plaintiff with a Local Rule 56.2 Notice, which explains what Local Rule 56.1 requires
of a litigant opposing summary judgment. [52].
In response, Plaintiff submitted a response to Defendants’ motion for summary

judgment [60]. Despite being advised of the procedures, however, Plaintiff failed to
respond to Defendants’ LR 56.1 Statement of Facts. Where the parties’ statements
are properly supported by the cited materials and are not otherwise disputed by the
evidence raised by the opposing party, the Court considers those statements as
undisputed. See LR 56.1(e)(3). And because Plaintiff failed to submit a response to
Defendants’ Statement of Facts, this Court deems them admitted.
Mindful of these principles, this Court draws the facts below from the

Defendants’ Local Rule 56.1 statements of material facts [50], Plaintiff’s response to
the motion [60], and Defendants’ reply [65]. The Court has carefully examined each
response submitted by the parties for relevancy, evidentiary support, and
admissibility in construing the facts of this case and gives deference to Plaintiff’s
version of the facts where properly presented and supported by admissible evidence.
This Court will not consider purely legal arguments, responses lacking evidentiary
support, or responses that contradict sworn deposition testimony.
III. Facts
Plaintiff, Tory McCray (“Plaintiff”) is currently an inmate at Menard

Correctional Center. [50] ¶ 1. On February 2, 2020, and at all relevant times herein,
Defendant Correctional Officers Timothy Sage, James Ciukaj, Angel Perez, Patrick
Gallagher, and Jose Hernandez were employed by the Sheriff of Cook County at the
Cook County Department of Corrections (herein after referred to as “CCDOC”). Id.
¶¶ 2–6.
On February 2, 2020, CCDOC housed Plaintiff in Division 9, 1G, a segregation

unit of Cook County Jail, because of previous incidents of fighting. Id. ¶ 10. When
Defendants Perez and Sage brought Plaintiff out of his cell to eat dinner on February
2, 2020, Plaintiff became angry, agitated, and upset because he was escorted in
handcuffs. Id. ¶ 12. When Defendants opened Plaintiff’s cell door, Plaintiff became
verbally abusive towards Defendants stating, “I’m gonna get wild on you, you think
you playing with a kid, I’m going to show you.” Id. ¶ 13. Defendants asked Plaintiff
why he was so irate and what the Defendants could do to assist Plaintiff; Plaintiff

stated, “don’t worry about it, I’m gonna make you call the [Sergeant]. Just watch
what the fuck I do.” Id. ¶ 14. When escorted to the dayroom table and given his food
tray, Plaintiff knocked it to the floor and told Defendants to, “go clean that shit up,
bitch.” Id. ¶ 15. Defendants Sage, Gallagher, Perez, and Hernandez escorted Plaintiff
back to his cell. Id. ¶ 16. A portion of these events were recorded on video, Id. ¶ 11.
See [55].
At approximately 6:27 p.m., Defendants began removing Plaintiff’s handcuffs
and ordered Plaintiff to place his hands back in his cell to resecure the food port as
part of protocol. Id. ¶ 17. Officers commonly require inmates to put their hands

through the food port to remove restraints. Id. ¶ 18. In fact, prior to February 2,
2020, Plaintiff routinely put his hands through the food port so officers could remove
restraints without incident. Id. ¶ 30. On this occasion, however, Plaintiff refused
these orders and stated, “I know what time you motherfuckers get off work and when
you get out I’m gonna have somebody waiting to kill you bitch.” Id. ¶ 19. At the same
time, Plaintiff pushed his hands out through the food port and his fingers got caught

in between the frame and the food port, causing him to cut his finger. Id. ¶ 20.
Defendants ceased attempting to close the food port when they noticed that Plaintiff’s
finger was bleeding. Id. ¶ 21.
None of the Defendants struck or hit Plaintiff during the incident on February
2, 2020. Id. ¶ 22. None of the Defendants taunted or verbally abused Plaintiff during
the incident on February 2, 2020. Id. ¶ 23. Prior to February 2, 2020, Plaintiff was
present when his cellmate took the food port hostage, which resulted in officers

having to intervene and restrain both Plaintiff and his cellmate. Id. ¶ 31. And
Plaintiff admits that he believes Defendants thought he was trying to do the same
thing on this occasion, taking the food port hostage to prevent officers from being able
to close the door and secure Plaintiff. Id. ¶ 29. Prior to February 2, 2020, Plaintiff
has had no disagreements with any of the Defendants. Id. ¶ 32.
When Defendants saw that Plaintiff’s finger was bleeding, they sent for
Defendant Ciukaj, who arrived on the scene at 6:37 p.m. Id. ¶ 24.
Plaintiff was immediately transported to Cermak for medical evaluation and
treatment. Id. ¶ 25. On February 3, 2020, Cermak medical personnel evaluated

Plaintiff and x-rayed his hand; they found no broken bones or fractures but did find
some soft tissue swelling and summarized Plaintiff’s injury as “trauma to right index
finger with superficial laceration.” Id. ¶ 26. Medical staff evaluated Plaintiff again
on February 26, 2020, when he complained his right index finger was still causing
him pain; they noted “no swelling or redness,” “full ROM,” and “no signs of infection,”
and x-rays showed no fractures. Id. ¶ 27.

IV. Analysis
Given these facts, Defendants move for summary judgment arguing that: (1)
evidence in the record undermines Plaintiff’s claim of excessive force and any injury
he may have suffered was de minimus; (2) Defendant Ciukaj was not personally
involved in the use of force and thus cannot be liable under § 1983; and (3) Defendants
are entitled to qualified immunity.
A. Defendants’ Use of Force

The Court first addresses Defendants’ arguments that the record establishes
no genuine issues of material fact relating to Plaintiff’s allegation of excessive force.
Because Plaintiff was a pretrial detainee at the time of the incident, his excessive
force claim arises under the Fourteenth Amendment’s Due Process clause. See
Kingsley v. Hendrickson, 576 U.S. 389 (2015); Miranda v. County of Lake, 900 F.3d
335, 350-51 (7th Cir. 2018). Under the Fourteenth Amendment, an officer’s use of
force is excessive where it “amounts to punishment,” is “not rationally related to a
legitimate governmental purpose,” or “appears excessive in relation to that purpose”
when viewed objectively. Id. (quoting Bell v. Wolfish, 441 U.S. 520 (1979)).

To prevail on an excessive force claim, “a pretrial detainee must show only that
the force purposely or knowingly used against him was objectively unreasonable.”
Kingsley, 576 U.S. at 396–97. Whether the force was objectively unreasonable “turns
on the facts and circumstances of each particular case,” and depends upon factors
such as “the relationship between the need for the use of force and the amount of force
used; the extent of the plaintiff’s injury; and any effort made by the officer to temper

or to limit the amount of force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff was actively
resisting.” Id. at 397 (quotation marks and citations omitted). The Court considers
these factors from the perspective of what a reasonable officer on the scene would
have understood, not through the lens of hindsight. Id.
Defendants have submitted as evidence the incident report, and two digital
video exhibits seeking to support their argument that the force complained of was

reasonable. But neither video captures Defendants’ use of force after Plaintiff took
his chuckhole hostage. The first video shows 40 minutes of footage taken from a
stationary camera covering the common area, where the inmates apparently eat. See
[55]. The video (which has no audio) shows the officers bringing Plaintiff down to the
common area for lunch (and he appears to be shouting at them), shows Plaintiff
deliberately throw his food container across the room, and shows the officers taking
Plaintiff back up the stairs, presumably to his cell, then shows them bringing him
back down the stairs a few minutes later, and shows them walking him out of the
common room, presumably heading to the medical unit. See [55]. But his cell door

is not visible in the frame, and the actual use of force around the chuckhole thus is
not captured.
The second video, which does include some audio, shows events following the
use of force when Plaintiff was escorted to the medical unit for treatment for his
injuries. These videos do not necessarily undermine Plaintiff’s claim. Although the
incident report describes Plaintiff’s aggressive and unreasonable behavior prior to

the use of force (which is confirmed by the videos), the undisputed record shows that
Defendants did use some force in attempting to secure Plaintiff’s hands in the
chuckhole, and that force caused Plaintiff injury. Additionally, it is undisputed that,
when the officers applied force, Plaintiff was already in his cell with his hands cuffed.
The Seventh Circuit has held that force is reasonable “only when exercised in
proportion to the threat posed, and as the threat changes, so too should the degree of
force. . . . It’s the totality of the circumstances, not the first forcible act, that

determines objective reasonableness.” Abbot v. Sangamon County, Ill., 705 F.3d 706,
729 (7th Cir. 2013). Given the absence of video evidence depicting the actual use of
force in this case, a jury might credit the Plaintiff’s version of events, see [60][61],
over that of the Defendants, and find that the officers’ use of force unreasonable under
the circumstances.
Defendants also argue that Plaintiff’s injury was de minimus precluding his
excessive use of force claim. Even accepting Defendants’ characterization of
Plaintiff’s injury, that fact may preclude him from obtaining any compensatory

damages for mental or physical injury, but it would not preclude him from seeking
“nominal and punitive damages.” Calhoun v. DeTella, 319 F.3d 936, 940-41 (7th Cir.
2003); see also Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012); Washington v.
Hively, 695 F.3d 641, 644 (7th Cir. 2012); Smith v. Peters, 631 F.3d 418, 421 (7th Cir.
2011).
Based upon the current record, this Court cannot enter summary judgment in

favor of Defendants Sage, Gallagher, Hernandez, and Perez.
B. Defendant Ciukaj
This Court finds that summary judgment is appropriate as to Defendant
Ciukaj, however. Liability under the Civil Rights Act requires a defendant’s personal
involvement in the alleged constitutional violation. See Palmer v. Marion County,
327 F.3d 588, 594 (7th Cir. 2003). A supervisory official cannot be held liable for the
conduct of his subordinates based upon a theory of respondeat superior, and a

complaint’s allegations must indicate that the supervisory official was somehow
personally involved in the constitutional deprivation. See Perkins v. Lawson, 312
F.3d 872, 875 (7th Cir. 2002).
Here, the record establishes that the other Defendants sent for Defendant
Ciukaj at 6:37 p.m., after the use of force, which occurred at 6:27 p.m. Because the
undisputed portions of the record (including the video exhibits) confirm that
Defendant Ciukaj was not present when Defendants Sage, Gallagher, Hernandez,
and Perez used the alleged excessive force underlying Plaintiff’s claim, he was not
personally involved in the use of force, and he may not be held liable for it.

C. Qualified Immunity
Qualified immunity shields government officials from “civil damages liability
unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” Taylor v. Barkes, 575 U.S. 822,
825 (2015) (internal quotation marks omitted). When evaluating whether qualified
immunity applies, the court must ask “two questions: (1) whether the facts, taken in

the light most favorable to the plaintiff, make out a violation of a constitutional right,
and (2) whether that constitutional right was clearly established at the time of the
alleged violation.” Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001); see also
Lane v. Franks, 573 U.S. 228, 243 (2014). For the law to be clearly established, the
“existing precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
As explained above, the record contains genuine issues of material fact as to

the alleged violation of Plaintiff’s constitutional rights. In addition, it is well
established that it is objectively unreasonable for an officer to use significant force on
an unresisting or passively resisting subject. See Abbott, 705 F.3d 706 at 732 (“it was
well-established in this circuit that police officers could not use significant force on
non-resisting or passively resisting suspects”); Clash v. Beatty, 77 F.3d 1045, 1048
(7th Cir.1996) (dismissing appeal of denial of qualified immunity in excessive force
case; issue of fact existed as to whether officers applied “wholly gratuitous” force
against subdued suspect not resisting arrest). This prohibition applies even though
the detainee may previously have refused to comply with officers’ orders or even posed
a threat to officer safety. Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014). Here,
although Plaintiff was behaving belligerently in the common room, when the officers
applied force to get him to release his hold on the chuckhole he was retrained and
locked in his cell. Because the video recordings do not allow the Court to assess the
actual use of force at issue here, and the parties dispute the incident itself, summary
judgment on qualified immunity grounds remains inappropriate.
V. Conclusion
For the reasons stated above, the Court grants in part, and denies in part,
Defendants’ motion for summary judgment [49]. Because the record establishes that
Defendant Ciukaj played no part in the alleged use of force, he may not be liable
under § 1983, and the Court dismisses him from the case. The Court denies the
motion in all other respects; Plaintiff may proceed on his claim against Defendants
Sage, Gallagher, Hernandez, and Perez.
Dated: September 26, 2022 Entered:

nited States District Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10147610. Public record. Not legal advice.