Bogacz v. Lt. Holmes

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GREG M. BOGACZ, )

)

Plaintiff, )

)

vs. ) Case No. 22 C 3070

)

LT. HOLMES, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Greg Bogacz is serving a sentence in the Illinois Department of

Corrections. Before IDOC, Mr. Bogacz was detained at the Cook County Jail awaiting

trial. He has filed a pro se lawsuit1 under 42 U.S.C. § 1983 that currently has a single

named defendant, Lt. Holmes, whose first name Mr. Bogacz does not know and that

defense counsel, for some reason, has not provided. Mr. Bogacz contends that while at

the Jail, he had multiple ingrown toenails that were causing him significant pain.

Unsurprisingly, he says that he needed to keep his toenails trimmed and that a Jail

physician told him as much. The Jail apparently would not allow detained persons to

keep nail clippers, likely (though the defense doesn't actually say this) because they can

be used or modified for use as a weapon. So, according to Mr. Bogacz, a detained

1 Back in November 2022, at a very early stage of the lawsuit, Mr. Bogacz filed a motion

for attorney representation. The Court denied the motion in December 2022, finding

that Mr. Bogacz had not shown that counsel was required, at least not at that early

stage. See Dkt. no. 19. The Court's order advised Mr. Bogacz that he could renew the

motion as the case progressed, but Mr. Bogacz did not do so.

person who needed nail clippers had to go to the Jail's barbershop, where clippers

evidently were kept, or have correctional staff bring nail clippers from the barbershop to

the person's cell for use.

Mr. Bogacz's lawsuit against Lt. Holmes appears, on the surface at least, to

involve the period from January through July 2020, see Pl.'s Resp. to Def.'s Mem. at 3,

a good part of which coincides with the early stage of the COVID-19 pandemic, which

led to a lockdown of the Jail in or about March 2020. According to Mr. Bogacz, the Jail's

barbershop was closed during the January-to-July period. During most or at least a

good part of this period, Mr. Bogacz was incarcerated at Division 6 of the Jail, and Lt.

Holmes worked there as well. Mr. Bogacz says that he asked Lt. Holmes to provide or

to arrange to provide him with nail clippers to deal with his ingrown toenails, but Lt.

Holmes would not or did not do so. It was not until the very end of July 2020, Mr.

Bogacz says, that he finally was able to clip his toenails. Before this, he contends, he

experienced significant pain.

Mr. Bogacz has sued Lt. Holmes under 42 U.S.C. § 1983 for preventing him from

adequately caring for his medical condition. Mr. Bogacz acknowledges that Lt. Holmes

is not a physician, but he contends that Lt. Holmes had the ability to do something to

ameliorate the situation but refused. Mr. Bogacz has sued to recover damages. His

lawsuit appears to name Lt. Holmes individually and in his "official capacity," a point to

which the Court will return later in this decision.

Because Mr. Bogacz was, at the time, detained while awaiting trial, his claim

against Lt. Holmes arises under the Fourteenth Amendment's Due Process Clause. To

prevail, Mr. Bogacz must establish that: (1) Lt. Holmes knowingly, or at least recklessly,

failed to provide him with nail clippers; (2) Lt. Holmes's action, or inaction, was

unreasonable; and (3) Mr. Bogacz would have avoided harm, or would have been

harmed less, if Lt. Holmes had acted reasonably. See, e.g., Redman v. Downs, 854 F.

Appx 736, 738 (7th Cir. 2021); McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir.

2018); Miranda v. County of Lake, 900 F.3d 335, 353-54 (7th Cir. 2018). See generally

Kemp v. Fulton County, 27 F.4th 491, 496 (7th Cir. 2022) (knowledge requirement for

Fourteenth Amendment claim concerns knowing conduct, not knowledge of the

consequences of that conduct).

Lt. Holmes has moved for summary judgment. He argues that: (1) all he did was

respond to a grievance submitted by Mr. Bogacz, and that's insufficient to make him

responsible for Mr. Bogacz's alleged harm; (2) he did what he was able to do, primarily

by referring Mr. Bogacz to the "facilities supply" of nail clippers; (3) there is no basis for

an official capacity claim, which amounts to a claim against the entity employing Lt.

Holmes, namely the Sheriff of Cook County; (4) Mr. Bogacz does not claim a physical

injury, as supposedly required under the Prison Litigation Reform Act to maintain a

claim; and (5) Lt. Holmes is entitled to summary judgment based on qualified immunity.

Only the third of these arguments has merit.

Before getting to the merits, the Court addresses certain procedural or

evidentiary points asserted by Lt. Holmes in his reply to Mr. Bogacz's response. First,

Lt. Holmes asks the Court to strike Mr. Bogacz's affidavit, submitted with his response,

on the ground that it adds more information than Mr. Bogacz provided in his deposition.

This argument is utterly lacking in merit. Lt. Holmes attempts to rely on the well-

established proposition that a party cannot create a genuine factual dispute for

summary judgment purposes by contradicting his deposition with a later affidavit. See,

e.g., Gates v. Caterpillar, Inc., 513 F.3d 680, 688 (7th Cir. 2008). But Lt. Holmes does

not cite any actual contradiction. Rather, he argues that Mr. Bogacz's affidavit contains

information that, according to Lt. Holmes, Mr. Bogacz did not volunteer during his

deposition. Lt. Holmes cites a broad question his counsel asked Mr. Bogacz at the end

of the deposition: "Is there anything that you would like to put on the record for the last

five minutes we have?" Lt. Holmes contends that because Mr. Bogacz makes points in

his affidavit that he did not volunteer in response to this open-ended question, it's too

late now.

No case cited by Lt. Holmes (and certainly no Seventh Circuit case) stretches the

affidavit-contradicting-deposition rule anywhere near that far. The main case he cites,

Beckel v. Walmart Assocs., Inc., 301 F.3d 621 (7th Cir. 2002), involved a scenario

nothing like the one here. In Beckel, the plaintiff asserted a claim that she had been

fired for reporting sexual harassment by a supervisor. The plaintiff testified during her

deposition about a meeting with the general manager of the distribution center where

she worked. She recounted statements made at the meeting and then, when asked if

she recalled anything else, said no. Evidently what she had remembered included no

evidence suggesting retaliation. But seven months later, in response to a summary

judgment motion, the plaintiff remembered a claimed statement by the general manager

stating that her "employment would be terminated if [she] disclosed the incident." Id. at

623. In short, there was a flat-out contradiction on a critical point that went to the core

of the plaintiff's case. And even then, the court relied in part on the plaintiff's attorney's

failure to bring this out when he had an opportunity to question the plaintiff during her

deposition taken by the defendant. See id. at 624.

Nothing like this happened here. First, Mr. Bogacz does not have a lawyer—he's

an imprisoned person acting pro se—and second, his recounting of details in his

affidavit does not actually contradict his deposition answer to the vague question by

defense counsel about whether there was "anything that [he] would like to put on the

record." Indeed, Lt. Holmes does not identify any actual contradiction of Mr. Bogacz's

deposition testimony: his general statements on this point cite none, and his laundry list

of a dozen-plus paragraphs claimed, without explanation, to include contradictions,

amounts to a forfeiture given the total absence of an explanation.

The Court, having carefully reviewed the relevant portions of Mr. Bogacz's

deposition regarding his communications with Lt. Holmes and the nature of his ingrown

toenail issue, and the corresponding portions of his affidavit, actually can see no

contradiction at all. There may be more detail in one spot than the other, but there's

nothing about this that makes the affidavit inadmissible. The Court overrules Lt.

Holmes's argument on this point.

Second, Lt. Holmes argues that Mr. Bogacz's affidavit contains points on which

he lacks personal knowledge. Again, this argument is made in a conclusory way—it's

basically a single, unexplained sentence that appears twice in Lt. Holmes's reply brief.

See Def.'s Reply at 4 (first paragraph and third paragraph). Of the eight paragraphs of

the affidavit cited on this point by Lt. Holmes, six involve matters that on their face

clearly are matters within Mr. Bogacz's personal knowledge: paragraph 27, concerns a

conversation between Mr. Bogacz and Lt. Holmes; 28 concerns a medical request Mr.

Bogacz himself submitted; 46 concerns his prior experience with nail clippers at the Jail;

47 involves what he had to do to cut his toenails; 48 says which Jail divisions he was

housed in and when; and 49 discusses his experience in Division 10 in July 2020. It's

rather mystifying to the Court on what basis Lt. Holmes contends these points are

outside Mr. Bogacz's knowledge. The defense reply brief would have benefitted from

more careful vetting on this point.

That brings us down to paragraphs 5 and 6 of Mr. Bogacz's affidavit, which read

as follows:

5. When the barbershop is closed for long periods of time the

detainee and/or inmate cannot cut his nails.

6. In the past, when the barbershop is closed for long periods

of time, sergeants and/or lieutenants, including Lt. Holmes, have gone into

the barbershop to retrieve the toenail clippers so the detainee/inmate

could use them.

Pl.'s Ex. A (affidavit) ¶¶ 5-6. On the question of personal knowledge, these statements

by Mr. Bogacz are arguably closer to the line. But that's only because they are not

detailed. It's readily apparent that Mr. Bogacz's statements in these paragraphs involve

matters that likely would be within his personal knowledge, either by experience or by

observation. In particular, Mr. Bogacz was detained at the Jail for several years before

the events in question, and he had recurring ingrown toenail issues during that period.

He has a sufficient basis to testify regarding his observations and experiences on this

point.

The summary judgment motion, in the Court's view, largely boils down to what

can appropriately be taken or inferred from paragraph 6 of Mr. Bogacz's affidavit. The

Court will consider Mr. Bogacz's statements in paragraph 6 for the reasons just stated

and will return to it at a later point in this decision.

Having addressed Lt. Holmes' procedural objections, the Court proceeds to his

arguments regarding the merits, though in a slightly different order than how they are

set out in his summary judgment brief.

1. Whether Lt. Holmes's liability is premised only on his grievance review

Lt. Holmes argues that his only involvement was to review a grievance on the

toenail clippers issue that Mr. Bogacz submitted. But Mr. Bogacz says otherwise. He

testified during his deposition, and repeats in his affidavit, that he spoke directly with Lt.

Holmes twice; asked him to facilitate getting toenail clippers both times; and Lt. Holmes

refused.

Lt. Holmes's response to this seems to be that Mr. Bogacz's testimony should be

disregarded and that the only evidence worthy of consideration is the written record of

Lt. Holmes's review of the grievance. See Def.'s Mem. in Support of Mot. for Summ. J.

at 4 ("Defendant's only involvement supported by record evidence is responding to

Plaintiff's grievance." (emphasis added)). That's ridiculous. First of all, there is no

rule—none—that suggests that a court may, on summary judgment, appropriately

discount testimonial evidence that isn't supported by documents. Second, the fact that

Lt. Holmes did review Mr. Bogacz's grievance doesn't mean—of course it doesn't

mean—that he didn't also speak with Mr. Bogacz.

Mr. Bogacz testified during his deposition that he spoke with Lt. Holmes on two

occasions during the relevant period, specifically, in May and June 2020. See Def.'s Ex.

F (Bogacz dep.) at 37, 61-62. He isn't precise on the dates, other than to state that the

May conversation likely was between May 5 and May 15. But precision on the date of a

conversation isn't required for testimony like this to be admissible and properly

considered.

The bottom line is that a reasonable jury could accept Mr. Bogacz's account that

he directly asked Lt. Holmes to get, or help him get, toenail clippers and that Lt. Holmes

refused to do so. The missing element at this point involves whether this was within Lt.

Holmes' responsibilities or his power to accomplish. The Court will return to this point

later in this decision. For now, it suffices to say that the Court rejects Lt. Holmes's

contention that his claimed liability is based only on his response to Mr. Bogacz's

grievance.

2. The claimed absence of physical injury to Mr. Bogacz

The Court skips ahead to Lt. Holmes's third argument. Under the PLRA, no

federal suit may be brought by a prisoner "for mental or emotional injury suffered while

in custody without a prior showing of physical injury or the commission of a sexual act . .

. ." 42 U.S.C. § 1997e(e). Lt. Holmes seeks dismissal of Mr. Bogacz's claim on this

basis, arguing that he has claimed no physical harm. See Def.'s Mem. in Support of

Mot. for Summ. J. at 12 ("[W]hen viewing no record of an injury, in conjunction with the

record evidence that Defendant was not involved in Plaintiff's medical treatment,

summary judgment is entirely appropriate here.").

First, this argument appears to misread the statute. Section 1997e(e) does not

require a physical injury as a prerequisite to maintaining a claim. Rather, it requires a

physical injury as a prerequisite to obtaining damages for emotional distress. That is

clear from the text of the statute, and it's also clear from a recent Seventh Circuit case,

which concludes this provision "applies only to compensatory damages—not nominal

damages, punitive damages, or injunctive relief." Hacker v. Dart, 62 F.4th 1073, 1078

(7th Cir. 2023).2 Thus even if Lt. Holmes were right about the absence of a physical

injury, it would not warrant dismissal of Mr. Bogacz's claim but rather only denial of

recovery of emotional distress damages if he prevailed.

Second, Mr. Bogacz does claim a physical injury. "To satisfy § 1997e(e),

prisoners must show an injury that is more than negligible although not necessarily

significant." Id. at 1079. Having two toenails that are growing into one's toes allegedly

due to the failure to provide toenail clippers, thereby causing pain, amounts to a

physical injury sufficient to clear this threshold. Mr. Bogacz described the physical

component of his injury in detail during his deposition. See Def.'s Ex. F (Bogacz dep.)

at 40, 106-07.

For these reasons, the Court overrules Lt. Holmes's second argument.

3. Lt. Holmes's personal responsibility for the alleged wrong to Mr. Bogacz

Lt. Holmes contends that Mr. Bogacz has no evidence that he had any personal

involvement in any violation of Mr. Bogacz's rights. The motion for summary judgment

focuses mainly on his response to Mr. Bogacz's grievance—a point that, as just

discussed, doesn't carry the day—but the issue is broader than that. In order to have

acted unreasonably, or in order for his actions (or inaction) to have caused harm to Mr.

Bogacz, there has to be some evidence that would permit a reasonable jury to find that

there was something Lt. Holmes could have done that he knowingly refused to do.

In this case, Mr. Bogacz's contention is that Lt. Holmes he should have obtained

2 Injunctive relief is inapplicable here; Mr. Bogacz is no longer at the Jail and thus does

not face any risk of future harm at the Jail's hands. But under Hacker, nominal and

punitive damages would still be available even if Mr. Bogacz could show no physical

injury.

nail clippers and provided them for Mr. Bogacz's use. See Def.'s Ex. F (Bogacz dep.) at

36-37. Instead, Mr. Bogacz testified, Lt. Holmes said that Mr. Bogacz would have to ask

for clippers from the medical dispensary, see id. at 37, 38-39, and said generally that

"they're going to make [nail clippers] available for [detainees] in the near future." Id. at

37. That was also Lt. Holmes's response to Mr. Bogacz's grievance. See Def.'s Ex. E

(grievance) at 2. Mr. Bogacz contends that this was basically the equivalent of a brush-

off or the run-around; dispensary personnel, according to Mr. Bogacz, said that clippers

had to be obtained not from them, but from Jail staff. See Pl.'s Ex. A (affidavit) ¶ 27.

For Mr. Bogacz to prevail at trial, there will have to be some evidence that

providing nail clippers was something that Lt. Holmes had the ability or responsibility to

do. It wouldn't make sense for a detained person in this situation to be able to impose

liability on random correctional staff members, irrespective of their responsibilities. But

the defense doesn't actually address this point in the summary judgment motion.

Instead the defense contends—premised on its factually unsupported assumption that

Lt. Holmes's only involvement concerned the grievance—that Lt. Holmes carried out

whatever responsibility he had by referring Mr. Bogacz to the "facilities supply" of nail

clippers. The Court has put that in quotes because it is the phrase the defense uses in

its summary judgment brief. See Def.'s Mem. in Support of Mot. for Summ. J. at 6

("Defendant's response gave Plaintiff a notice about the facilities supply.") (citing Def.'s

LR Stat. ¶ 16, which in turn cites the grievance response). This is an easy one: it's not

even what Lt. Holmes said in his grievance response. Lt. Holmes's June 1, 2020

response actually says: "This item [i.e., nail clippers] will be made available in the near

future." Def.'s LR 56.1 Stat., Ex. D at 2. That's it; no reference to a "facilities supply" at

all.

The Court easily could stop right there, because it has addressed the only

argument regarding Lt. Holmes's personal responsibility that the defense made on

summary judgment. That argument was premised on non-existent evidence and thus

could not succeed. But because the issue of Lt. Holmes's responsibility will come up at

trial, the Court will go ahead and discuss it here.

During his deposition, when asked why Lt. Holmes should be held responsible,

Mr. Bogacz mainly cited Lt. Holmes's title and his relative authority vis-à-vis other

correctional personnel: "But him being in a position of power, him being above a regular

CO, I believe he had the authority to go to the barber shop, because it was closed, and

grab some toenail clippers. You know, they should have had a system in place." Def.'s

Ex. F (Bogacz Dep.) at 36. Later during the deposition, Mr. Bogacz returned to this

point:

Q: Isn't it true that Lieutenant Holmes didn't have anything do so with

the medical treatment?

A: Lieutenant Holmes doesn't have anything to do with medical

treatment, but he has an obligation to provide personal hygiene items for

detainees.

Q: And why do you believe he has that obligation?

A: Because in the inmate handbook, it says that CCDOC will provide

us with a healthy lifestyle, including personal hygiene items, such as

razors and toenail clippers.

Id. at 108 (emphasis added). And a bit later during the deposition, Mr. Bogacz testified

as follows:

. . . [T]his has been an ongoing issue through my whole stay at Cook

County Jail. All they had to do was figure out an alternate way to provide

toenail clippers. If the barber shop was closed for whatever reason, they

need to find an alternate way to provide toenail clippers.

Lieutenant Holmes, being in a position of power, being a man who's in

charge, who could make some rules, he could have helped in doing that.

When I specifically asked him for toenail clippers and he denied me, he

could have got them. The issue could have been dead. But he didn't. He

denied them.

Id. at 111-12.

This testimony would not be enough to permit a reasonable jury to find in Mr.

Bogacz's favor regarding Lt. Holmes's responsibility. The reason is that, on its face, the

testimony is based on assumptions regarding Lt. Holmes's responsibility, not actual

experience. In paragraph 6 of his affidavit, however, Mr. Bogacz provides evidence that

would support the proposition that Lt. Holmes did in fact had the ability and authority,

when the barbershop was closed for an extended period, to provide a detained person

access to nail clippers:

6. In the past, when the barbershop is closed for long periods

of time, sergeants and/or lieutenants, including Lt. Holmes, have gone into

the barbershop to retrieve the toenail clippers so the detainee/inmate

could use them.

Pl.'s Ex. A (affidavit) ¶ 6.

The Court found earlier that this statement, and its surrounding context, involve

matters on which the record reflects Mr. Bogacz can appropriately testify based on his

knowledge and observation at the Jail. With this, he has offered enough evidence to

permit a reasonable jury to find personal responsibility on the part of Lt. Holmes, though

a jury easily could go the other way as well. Specifically, a reasonable jury could find

that Lt. Holmes acted unreasonably in refusing to provide Mr. Bogacz with access to

toenail clippers and (in response to the grievance) just telling him the problem was

being worked on. There is evidence that Mr. Bogacz got access to toenail clippers in

July 2020, but a reasonable jury could find that a two-month delay (the approximate

interval between his first approach to Lt. Holmes in May 2020 and his access to clippers

in July 2020) was unreasonable.

4. Qualified immunity

Lt. Holmes's argument for qualified immunity turns on the following contentions:

(1) all he did was respond was respond to Mr. Bogacz's grievance; (2) he never dealt

directly with Mr. Bogacz; (3) he is not a medical provider and did not provide medical

treatment; (4) Mr. Bogacz "never received a medical alert for any accommodation

regarding his toenails"; and (5) Mr. Bogacz never told Mr. Holmes about his diagnosis or

treatment. Def.'s Summ. J. Mem. at 13.

The first two of these arguments, and the fifth, turn on facts that are disputed. As

the Court has noted, the defense has offered no affidavit from Lt. Holmes. As a result,

the proposition that he "only responded to Plaintiff's grievance and never dealt directly

with . . . Plaintiff, in general," id., has not a speck of support in the record. As discussed

earlier, evidence that Lt. Holmes responded to Mr. Bogacz's grievance does not amount

to evidence that that is all he did. That aside, Mr. Bogacz testified during his deposition

and has stated in his affidavit that he spoke directly with Lt. Holmes, twice, regarding his

toenail pain and his need and request for nail clippers. Qualified immunity is not a basis

for summary judgment when the defense turns on disputed facts. See, e.g., Gupta v.

Melloh, 4 F.4th 990, 1000 (7th Cir. 2021) ("[W]here there are disputes of material fact . .

. that are essential to the question of [the legality of the defendant's conduct], . . . it is

impossible to conclude on summary judgment whether [the defendant is] entitled to

qualified immunity."); Weinmann v. McClone, 787 F.3d 444, 446 (7th Cir. 2015) (a

motion for summary judgment on qualified immunity "is not the time for resolution of

disputed facts"; instead, the court must "accept the plaintiff's version of the facts, without

vouching for their ultimate accuracy").

On Lt. Holmes's third point, the proposition that he is not a medical provider is of

no consequence in this context. It appears, based on the record, that toenail clippers

weren't considered a medical device at the Jail; under normal circumstances, they were

provided by (or at least at) the Jail's barbershop. As the Court has discussed, Mr.

Bogacz has provided evidence sufficient to permit a reasonable jury to find that

procuring a set of clippers was within Lt. Holmes's authority and ability to accomplish.

Applying qualified immunity based on the contrary proposition—which at this point has

no support in the record given the way the defense pitched the summary judgment

motion—would be inappropriate.

Finally, the Court confesses that it does not understand the import of Lt. Holmes's

contention that "Plaintiff never received a medical alert for any accommodation

regarding his toenails," Def.'s Summ. J. Mem. at 13, and the defense makes no effort to

elucidate this. In any event, Lt. Holmes has cited no authority for the proposition that a

"medical alert," whatever that might be at the Jail, is a necessary prerequisite to a claim

of this type. That aside, Lt. Holmes himself cites evidence indicating that a physician

assistant diagnosed Mr. Bogacz in March 2020—right in the middle of the period at

issue—as having "bilateral ingrown toenails." See Def.'s LR 56.1 Stat. ¶ 28.

Given the disputed facts as well as the evidence that would permit a reasonable

jury to find that Lt. Holmes ignored Mr. Bogacz's claims of pain and refused to take what

might rightly be considered to be a simple a modest step—procuring toenail clippers

because the barbershop was closed—Lt. Holmes is not entitled to summary judgment

based on qualified immunity.

For all of these reasons, Lt. Holmes is not entitled to summary judgment

on Mr. Bogacz's individual-capacity claim against him.

5. "Official capacity" claim

Mr. Bogacz also appears to have sued Lt. Holmes in his official capacity. An

official capacity claim is "another way of pleading an action against an entity of which an

officer is an agent." Hafer v. Melo, 502 U.S. 21, 25 (1991). Thus a lawsuit against an

agent of an entity in the agent's official capacity is appropriately viewed as a suit against

the entity itself—in this case, the Sheriff of Cook County, who employs Lt. Holmes and

operates the Cook County Jail. The Court notes that the Sheriff is not a named

defendant but will bypass that issue because Mr. Bogacz has not offered a basis for

imposing entity liability on the Sheriff in any event.

To establish liability against a governmental entity like the Sheriff under section

1983, the plaintiff must show that a policy or custom of the entity caused the plaintiff's

constitutional injury. See, e.g., J.K.J. v. Polk County, 960 F.3d 367, 377 (7th Cir. 2020).

This can be shown through "(1) an express policy that causes a constitutional

deprivation when enforced; (2) a widespread practice that is so permanent and well-

settled that it constitutes a custom of practice; or (3) an allegation that the constitutional

injury was caused by a person with final policymaking authority." Spiegel v. McClintic,

916 F.3d 611, 617 (7th Cir. 2019).

The policy Mr. Bogacz contends caused his injury is the claimed Cook County

Jail policy requiring pretrial detainees to use only nail clippers located in the barbershop.

That policy is quite obviously not unconstitutional on its face; it does not keep detained

persons from access to nail clippers but simply regulates where they can be used. Mr.

Bogacz says that as applied to him, the policy is unconstitutional, as the barbershop

was closed for a significant period during the relevant time. But a written policy that is

facially constitutional does not give rise to liability under section 1983, even if it does not

provide guidance to employees that might avert individual constitutional violations. Id.

at 618.

Mr. Bogacz's official capacity claim is thus better understood as a claim that there

was a practice (during the relevant period) of not allowing detained persons access to

nail clippers at all, or perhaps a claim that the policy consisted of the absence of a

policy to address situations where the normal distribution channel was shut down,

leaving no alternative means of access to nail clippers for detained persons. But Mr.

Bogacz has offered no evidence of a wider practice, nor has he offered evidence that

there was no alternative source generally. Rather, his evidence is that he could not get

access to nail clippers. To put it another way, Mr. Bogacz points only to his own

experience; he offers no evidence that anyone other than him who needed nail clippers

was unable to get them. That is insufficient to permit a reasonable jury to find that the

Sheriff had a policy or widespread practice of denying nail clippers during the relevant

period. See Est. of Perry v. Wenzel, 872 F.3d 439, 461 (7th Cir. 2017) ("A plaintiff must

do more than simply rely upon his own experience to invoke Monell liability"); Thomas v.

Cook Cnty. Sherriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010) (stating that "an isolated

act of an individual employee" is "insufficient to establish a widespread custom or

practice."). For these reasons, Lt. Holmes is entitled to summary judgment on Mr.

Bogacz's official capacity claim.

Conclusion

Mr. Bogacz's lawsuit is certainly not the case of the century. But even so, the

defendant cannot escape liability on summary judgment by making contentions without

support in the record and waving away Mr. Bogacz's testimony and affidavit. For the

reasons stated above, the Court denies the defendant's motion for summary judgment

[dkt. no. 53] with respect to the plaintiff's individual-capacity claim against the defendant

but grants summary judgment with respect to the plaintiff's official-capacity claim. The

case is set for a telephonic status hearing on June 5, 2024 at 8:45 a.m. to set a trial

date and discuss holding a settlement conference prior to trial. The following call-in

number will be used: 650-479-3207, access code 980-394-33. Defense counsel is

directed to make arrangements for the plaintiff to participate by telephone.

Date: May 14, 2024

United States District Judge

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