Allen v. Butler

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RICHARD G. ALLEN, )

)

Plaintiff, )

)

vs. )

) Case No. 3:17-cv-01004-GCS

KIMBERLY BUTLER, MARK )

HANKS, JOSHUA BERNER, )

NICHOLAS BEBOUT, BENJAMIN )

NARUP, BRYAN CHILDS, )

NICHOLAS MERCER, MICHAEL )

JAMES, MELISSA COFFEY, )

CORTNEY MEYER, KENT )

BROOKMAN, TERRANCE )

JACKSON, STEPHANIE SCHAEFER, )

and SHARON A. MCGLORN, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Pending before the Court is Defendants’ Motion for Summary Judgment. (Doc.

112). Defendant’s Motion is before the Court on Plaintiff’s Motion for Partial

Reconsideration of the Court’s August 4, 2020, Order wherein the Court granted the

Motion for Summary Judgment filed by Defendants Bebout, Berner, Brookman, Butler,

Childs, Hanks, Jackson, James, Mercer, and Narup (the “IDOC Defendants”). (Doc. 159).

Plaintiff filed his Motion for Partial Reconsideration on June 29, 2021. (Doc. 159). In his

motion, Plaintiff requested that the Court reconsider the portions of the August 4, 2020,

Order as it relates to Defendants Bebout, Berner, Childs, Hanks, James, Mercer and

Narup.1 (Doc. 159, p. 1). Defendants filed a Response in Opposition to the Motion for

Reconsideration on July 8, 2021. (Doc. 160). The Court granted Plaintiff’s Motion for

Partial Reconsideration on July 13, 2021. (Doc. 161). Plaintiff subsequently filed a new

Response in Opposition to the Motion for Summary Judgment on August 30, 2021. (Doc.

163). For the reasons delineated below, the Court DENIES the Motion for Summary

Judgment. (Doc. 112).

PROCEDURAL HISTORY

Plaintiff Richard G. Allen, an inmate in the custody of the Illinois Department of

Corrections, currently housed at the Murphysboro Life Skills Re-Entry Center

(“Murphysboro”), filed this suit pursuant to 42 U.S.C. §1983 on September 19, 2017,

alleging that Defendants failed to protect him from an attack by his cellmate that occurred

while he was housed at Menard Correctional Center (“Menard”); he further claims that

his injuries were not treated appropriately following the attack. (Doc. 1). On November

6, 2017, the Court completed its preliminary review of Plaintiff’s Complaint pursuant to

28 U.S.C. § 1915A. (Doc. 7). The Court construed Plaintiff’s allegations into the following

counts:

Count 1: Eighth Amendment failure-to-protect claim against Hanks,

Coffey, Meyer, Bebout, Butler, and the John Doe Placement Officer, for

placing and/or allowing Plaintiff to remain in the cell with a prisoner

known to have attacked previous cellmates;

Count 2: Eighth Amendment claim against Mercer, Braking, Narup, James,

Childs, Berner, and John Doe Responding Officers for allowing Plaintiff’s

1 Plaintiff noted in Footnote 1 of his Partial Motion for Reconsideration that the Court need not

reconsider its decision regarding IDOC Defendants Butler, Brookman, or Jackson. (Doc. 159, p.1, n.1).

However, for ease of reference the Court will still refer to the list of Defendants throughout as the “IDOC

Defendants.”

cellmate to continue beating him, including after they handcuffed Plaintiff,

and for repeatedly spraying Plaintiff with mace when he came to the cell

door trying to escape;

Count 3: Eighth Amendment claim against John (Jane) Doe Nurses #1 and

#2 for deliberate indifference to Plaintiff’s need for medical treatment

following the attack;

Count 4: Eighth Amendment claim against unknown individual(s) for

housing Plaintiff in a filthy cell contaminated with human waste, with a

damaged mattress;

Count 5: Fourteenth Amendment procedural due process claim against

Brooks and Jackson for finding Plaintiff guilty of fighting without giving

him prior notice of the charges or impartially considering his evidence.

Id. at p. 7. Counts 1, 2, 3 and 5 of Plaintiff’s Complaint survived preliminary review.2 Id.

On March 28, 2018, Defendant Cortney Meyer filed a Motion for Summary Judgment for

Failure to Exhaust Administrative Remedies along with a Memorandum of Support.

(Doc. 64, 65). The Court denied the Motion on January 3, 2019. (Doc. 83). The remaining

Defendants did not file a Motion for Summary Judgment for Failure to Exhaust

Administrative Remedies.

On August 1, 2019, Defendants Coffey, McGloran and Meyer (the “Wexford

Defendants”) filed their Motion for Summary Judgment and Memorandum in Support.

(Doc. 106, 107). The remaining IDOC Defendants filed their Motion for Summary

Judgment and Memorandum in Support on September 3, 2019. (Doc. 112, 113). Plaintiff

filed a Response to the Wexford Defendants’ Motion for Summary Judgment on

December 20, 2019. (Doc. 125). However, Plaintiff’s former court appointed counsel

2 In the present Order, the Court will only reconsider Counts 1 and 2 in relation to the selected IDOC

Defendants. Defendants Bebout and Hanks will be considered in Count 1 while Defendants Berner, Childs,

James, Mercer, and Narup will be considered in Count 2.

neglected to file a response to the IDOC Defendants’ Motion for Summary Judgment.3

On August, 4, 2020, the Court Granted in Part and Denied in Part the Wexford

Defendants’ Motion for Summary Judgment and Granted the IDOC Defendants’ Motion

for Summary Judgment. (Doc. 139). On February 16, 2021, Plaintiff filed a Motion to

Withdraw his prior court appointed counsel due to irreconcilable differences. (Doc. 143).

The Court granted the Motion on March 26, 2021. (Doc. 147). The Court subsequently

appointed new counsel for Plaintiff on April 1, 2021. (Doc. 148). Plaintiff’s new counsel

filed a Motion to Reconsider the August 4, 2020, Order as to the IDOC Defendants, in an

effort to alleviate the negative impact of Plaintiff’s prior counsel’s negligent treatment.

Because Plaintiff only requested that the August 4, 2020, Order be reconsidered as to the

IDOC Defendants, only the facts relevant to those allegations will be recounted herein.

FACTUAL BACKGROUND

On or around October 27, 2015, Plaintiff was placed in a cell with Inmate Sankey

in the segregation unit at Menard Correctional Center (“Menard”). (Doc. 113, Exh. 1, p.

101:23-102:14). Prior to this placement, Plaintiff had never met inmate Sankey and

indicated that he could not have “identified him as an enemy [prior to being housed with

him]”. Id. at p. 13:14-18; 14:2-5. However, as Plaintiff was on his way to be placed in the

cell with Sankey, Plaintiff alleges that numerous inmates warned him about Sankey’s

violent and aggressive tendencies. Id. at p. 18:5-15. Several inmates allegedly warned

3 Plaintiff’s first court appointed counsel neglected Plaintiff’s case on numerous occasions. (Doc. 161,

p. 2-5). As such, the Court granted Plaintiff’s Motion to Withdraw Counsel on March 26, 2021. (Doc. 147).

On April 1, 2021, the Court appointed Plaintiff new counsel - Mr. Francis A. Citera. (Doc. 148). The Court

appreciates Mr. Citera’s and his associate, Mr. Aaron Klein’s diligence in their representation of Plaintiff

Allen.

Plaintiff that Sankey “was crazy” and had “attacked his last cellie.” Id. Inmate Harding,

who was reportedly moved to another cell because he was attacked by Sankey, began

hollering at Plaintiff to “watch out for [Sankey], [because] he's crazy.” Id. at p. 18:12-15.

As Plaintiff approached the cell, Plaintiff heard Sankey screaming and yelling in

anger. (Doc. 113, Exh. 1, p. 14:14-17). At this point, Plaintiff alleges that he put those

officers that escorted him to the cell “on alert.” Id. at p. 14:18-21. Plaintiff specifically

recalls that Sankey threatened “you better not put nobody in here with me. I’m warning

you,” which Defendant Hanks heard. Id. at p. 15:3-8. Plaintiff recalls telling Defendant

Hanks (“Hanks”) that he didn’t want to go into the cell because “this guy is belligerent”

and “acting aggressive.” Id. at p. 15:11-15. Hanks reportedly told Plaintiff that he needed

“to go in [the cell] or we’re gonna call tactical team . . . and put you in there.” Id. at p.

15:17-19. Plaintiff was then forced to enter the cell with Inmate Sankey. Id.

Within the first week of being housed with Sankey, Plaintiff reports that he warned

multiple officers about Sankey’s behavior towards him prior to being attacked. Plaintiff

warned Defendant Bebout (“Bebout”) that Sankey was “crazy” and that he was in a “bad

situation” because Sankey had attacked his prior cellmate, Inmate Harding. (Doc. 113,

Exh. 1, p. 20:21-21:4. Plaintiff reported to Bebout that Sankey was up in the middle of the

night, punching the walls, punching the air, talking to people who weren’t there and

making threats under his breath that he was going to “kill somebody.” Id. Plaintiff

reported that within a day, Sankey’s threats to kill were directed towards him. Id. at p.

21:20-22. In response to Plaintiff’s report, Bebout reportedly told Plaintiff that “this is

gladiator school or survival of the fittest” and that he needed to “stop being a punk.” Id.

at p. 22:3-5. Plaintiff also warned Defendant Hanks about Inmate Sankey’s behavior.

While Hanks was doing a cell check, Plaintiff noted that Hanks saw Inmate Sankey push

him, get up in his face, and “take a swing at him.” Id. at p. 23:24-24:3. Plaintiff recalled

Hanks telling Sankey to “knock it off”, and Plaintiff asked Hanks to be removed from the

cell. Id. at 24:1-3. Hanks reportedly told Plaintiff to file a grievance. Id. at p. 24:4-5.

On November 4, 2015, Inmate Sankey purportedly attacked Plaintiff inside their

shared cell. (Doc. 113, Exh. 1, p. 29:1-2). Defendant Officers Mercer (“Mercer”) and Narup

(“Narup”) were in the area when the breakfast trays were being distributed to inmates at

approximately 4:15 am. (Doc. 113, Exh. 6, 8). Mercer came to the door of the cell that

housed Plaintiff and Inmate Sankey and saw that the two were engaged in a physical

altercation. (Doc. 113, Exh. 1, p. 27:14-5). Mercer told the two inmates “to knock it off” to

no avail and then sounded the panic alarm. Id. at p. 27:19-21. Plaintiff claims that he

obeyed Mercer’s order and allowed himself to be handcuffed, but that Sankey continued

to attack him. Id. at p. 32:7-33. Narup came to the scene shortly thereafter to assist Mercer.

Id. at p. 28:19-20. Defendant Sergeant Berner (“Berner”) was then called to the scene by

Defendant Mercer via radio. (Doc. 113, Exh. 8, p. 1).

When Berner arrived on scene, he instructed Narup to retrieve the cell keys from

the armory. (Doc. 113, Exh. 8, p. 1). Narup left to retrieve the keys as instructed. Id. Berner

reportedly instructed the inmates to stop fighting. (Doc. 113, Exh. 7, p. 1). Plaintiff denies

that Berner gave this instruction. (Doc. 113, Exh. 1, p. 33:14-16). Pepper spray was then

deployed in an attempt to deescalate the situation. Plaintiff alleges that multiple officers

deployed pepper spray because it was coming from two different directions. (Doc. 113,

Exh. 1, p. 55:5-19). Plaintiff noted that the amount of pepper spray deployed made it

difficult to breathe. Id. at p. 38:4-7. Defendants contend that only Sergeant Berner

deployed three one second shots of pepper spray. (Doc. 113, Exh. 8, p. 1). While the

fighting had ceased long enough for Plaintiff to be handcuffed, Inmate Sankey continued

to strike Plaintiff. (Doc. 113, Exh. 1, p. 32:7-34:19). Plaintiff claims that at some point

during this period, Defendant Childs arrived on scene and began cheering Inmate Sankey

on to “beat” him along with Defendant Mercer. Id. at p. 57:22-24. However, Defendants

assert that Defendant Childs was not working on the day of the incident. (Doc. 113, p. 3).

Lastly, Plaintiff indicated that when he requested help from Defendant Officer James

(“James”) that James refused. (Doc. 113, Exh. 1, p. 56:11-16). Plaintiff also noted that James

refused to return his wedding band to him and that James stated: “Spoils go to the

winner. You got your ass kicked.” Id. at p. 57:11-12. Once Sankey settled down, he was

finally cuffed, and the officers were able to open the door of the cell. Id. at p. 39:1-5. Both

inmates were then taken to a holding area. Id. at p. 39:9-10.

LEGAL STANDARDS

Summary judgment is proper when the pleadings and affidavits “show that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. PROC. 56(c); Oates v. Discovery Zone, 116 F.3d

1161, 1165 (7th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The

movant bears the burden of establishing the absence of a genuine issue as to any material

fact and entitlement to judgment as a matter of law. See Santaella v. Metropolitan Life Ins.

Co., 123 F.3d 456, 461 (7th Cir. 1997)(citing Celotex, 477 U.S. at 323). This Court must

consider the entire record, drawing reasonable inferences and resolving factual disputes

in favor of the non-movant. See Regensburger v. China Adoption Consultants, Ltd., 138 F.3d

1201, 1205 (7th Cir. 1998)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

See also Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009)(stating that “we are not

required to draw every conceivable inference from the record . . . we draw only

reasonable inferences”) (internal citations omitted). Summary judgment is also

appropriate if a plaintiff cannot make a showing of an essential element of his claim. See

Celotex, 477 U.S. at 322. While the Court may not “weigh evidence or engage in fact-

finding[,]” it must determine if a genuine issue remains for trial. Lewis v. City of Chicago,

496 F.3d 645, 651 (7th Cir. 2007).

In response to a motion for summary judgment, the non-movant may not simply

rest on the allegations in his pleadings; rather, he must show through specific evidence

that an issue of fact remains on matters for which he bears the burden of proof at trial.

See Walker v. Shansky, 28 F.3d 666, 670–671 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex,

477 U.S. at 324). No issue remains for trial “unless there is sufficient evidence favoring

the non-moving party for a jury to return a verdict for that party . . . if the evidence is

merely colorable, or is not sufficiently probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249–250 (citations omitted). Accord Starzenski v. City of Elkhart, 87

F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In

other words, “inferences relying on mere speculation or conjecture will not suffice.” Trade

Finance Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (internal citation

omitted). See also Anderson, 477 U.S. at 252 (finding that “[t]he mere existence of a scintilla

of evidence in support of the [non-movant's] position will be insufficient; there must be

evidence on which the jury could reasonably find for the [non-movant]”). Instead, the

non-moving party must present “definite, competent evidence to rebut the [summary

judgment] motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000)

(internal citation omitted).

DISCUSSION

I. Plaintiff’s Eighth Amendment Claim for Failure to Protect Against

Defendants Hanks and Bebout.

Plaintiff asserts that Defendants Hanks and Bebout violated his Eighth

Amendment rights for failing to protect him against Inmate Sankey by allowing him to

remain in a cell with inmate Sankey despite the fact that “they knew (1) Sankey had

attacked [Plaintiff] as well as other inmates and (2) Sankey had threatened to kill

[Plaintiff].” (Doc. 163, p. 4). Defendants in opposition assert that there is “no evidence”

that Defendants Hanks and Bebout “had any actual knowledge of any impending harm

to Plaintiff from Inmate Sankey.” (Doc. 113, p. 7). In this case, the Court finds that Plaintiff

has demonstrated that there are significant disputes of fact concerning Defendants

protection of Plaintiff that must be left to a jury, and as such the Court DENIES Summary

Judgment for Count 1 of Plaintiff’s Complaint.

Prison officials have a duty to protect prisoners from known risks of violence,

including violence at the hands of other prisoners. See Farmer v. Brennan, 511 U.S. 825,

831-833 (1994). But see Brown v. Budz, 398 F.3d 904, 913 (7th Cir. 2005)(finding that a failure

to protect claim cannot be predicated merely on knowledge of general risks of violence

in the detention facility). To establish a violation of this right, a prisoner must

demonstrate that a prison official was deliberately indifferent to an excessive risk to the

prisoner’s health and safety. Id. Deliberate indifference is proven when (1) the harm to

which the prisoner was exposed was objectively serious and (2) the prison official had

actual knowledge of the risk to an inmate which they personally disregarded. See Farmer,

511 U.S. at 834; Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir. 2018); Grieveson v. Anderson, 538

F.3d 763, 775 (7th Cir. 2008).

As to the second prong, Plaintiff must demonstrate that the prison official had

actual knowledge of the risk, not just that the officer should have known about the risk.

See Grieveson, 538 F.3d at 775. Under this prong, to show that prison officials are aware of

a specific, impending and substantial threat to a prisoner’s safety, the prisoner may show

that he complained to the officials about that specific threat. See Gevas v. McLaughlin, 798

F.3d 475, 480 (7th Cir. 2015). Such a showing is sufficient to defeat summary judgment.

See Baha Eddin Al Momani v. Butler, Case No. 3:17-cv-01034-MAB, 2020 U.S. Dist. Lexis

180237, at *22-23, 27 (S.D. Ill. Sept. 30, 2020)(denying summary judgment where Plaintiff

presented evidence that he informed a correctional officer that his cellmate was “posing

a threat,” that he was “aggressive,” that he feared his cellmate, and that the cell mate

made threats stating he was “going to kill [him]”).

In this case, both Plaintiff and Defendants agree that the harm to which Plaintiff

was exposed was objectively serious. (Doc. 163, p. 5); (Doc. 113, p. 7). However,

Defendants contend that neither Bebout nor Hanks possessed the requisite knowledge

sufficient to establish deliberate indifference in Plaintiff’s failure to protect claim. (Doc.

113, p. 7). Because Defendants’ account is contradictory to that of the Plaintiff’s, which

contains allegations that Plaintiff indeed informed Defendants Bebout4 and Hanks5 of

Inmate Sankey’s threats and aggressive conduct towards him, the Court cannot grant

Defendants’ Motion for Summary Judgment as to Count 1.

II. Plaintiff’s Eighth Amendment Claim of Cruel and Unusual Punishment

Against Defendants Mercer, Narup, James, Childs and Berner.

Plaintiff alleges that Defendants Mercer, Narup, James, Childs, and Berner

violated his right to be free from cruel and unusual punishment when “they handcuffed

him (and not Sankey), encouraged Sankey to continue beating [Plaintiff] up while

[Plaintiff] was handcuffed, and [by] spraying [Plaintiff] with pepper spray.” (Doc. 163, p.

7). Largely, Defendants do not attempt to rebut Plaintiff’s testimony, but rather only

attempt to justify the Defendants’ alleged actions. (Doc. 113, p. 8-9). Therefore, as to

Count 2 of Plaintiff’s Claim, the Court DENIES the Defendants’ Motion for Summary

Judgment.

4 Plaintiff reportedly informed Defendant Bebout that: “I said [to Bebout], this dude’s crazy . . .

Listen, man, I’m in a bad situation here. This guy already attacked one person. He’s in here threatening me.

This guy’s humping in the middle of the night . . . He’s making threats under his breath that he wants to

kill . . . he’s gonna kill somebody . . . that’s when he started out saying, like making threats to kill somebody,

then that turned into me. (Doc. 113, Exh. 1, p. 20:13-21:22).

5 Plaintiff reportedly informed Defendant Hanks that: “I told . . . Officer Hanks . . . The very first day

that I came to the cell I could hear him inside the cell screaming, like yelling threats inside the cell, just

talking, like angrily, like really angrily . . . When he opens the cell, [Sankey] started screaming, you better

not put nobody in here. Don’t put nobody in here with me. I’m warning you. I’m telling you. So that’s

when I told Officer Hanks . . . right then and there . . . I don’t want to go in there. Man, you see this guy’s

belligerent. This guy’s acting aggressive, man, I ain’t going up in there with this dude.” (Doc. 113, Exh. 1,

p. 14:11-15:19).

The right to be free from cruel unusual punishment is another ground under

which an inmate’s Eighth Amendment rights can be violated. In its prohibition of “cruel

and unusual punishments,” the Eighth Amendment imposes a duty on prison officials,

who must provide humane conditions of confinement. See, e.g., Helling v. McKinney, 509

U.S. 25, 31-32 (1993); Washington v. Harper, 494 U.S. 210, 225 (1990); Wilson v. Seiter, 501

U.S. 294, 303 (1991). As a part of this duty, prison officials “must take reasonable measures

to guarantee the safety of the inmates.” See Hudson v. Palmer, 468 U.S. 517, 526-527 (1984).

This means that prison officials must act to prevent “unreasonable peril” or to address

“preventable, observed hazards that pose a significant risk of severe harm to inmates.”

See Anderson v. Morrison, 835 F.3d 681, 683 (7th Cir. 2016). Plaintiff’s testimony calls into

question if Defendants’ treatment of Plaintiff during the November 4th incident amounted

to cruel and unusual punishment under this standard.

First, as to Defendant Mercer, Plaintiff provided testimony indicating that he

believed Mercer was “egging on” Sankey to continue beating him once Plaintiff was

handcuffed. (Doc. 163, p. 8). In his deposition, Plaintiff stated prison officials were yelling

things like: “that ain’t no punch. Oh that’s all you got? You hit like a girl, whoop, you

know whooping and hollering and stuff like that.” (Doc. 113, Exh. 1, p. 32:7-33:10). When

asked to identify who was saying that, Plaintiff responded, “I know Mercer did.” Id. at p.

34:24. This testimony creates a genuine issue of material fact as to whether Defendant

Mercer encouraged Sankey to continue beating Plaintiff and whether Mercer as an

observer could have intervened to protect Plaintiff while he was restrained. Thus,

granting summary judgment on Plaintiff’s claims against Defendant Mercer is

inappropriate.

Next, regarding Plaintiff’s claims against Defendant Narup, the IDOC Defendants

attempt to present evidence indicating that Narup was not present during most of the

attack. (Doc. 113, p. 8). In Defendant Narup’s incident report he notes that “as the C/O’s

came to cell 49 the two inmates that resid[ed] in that cell were throwing closed fist

punches at each other . . . Upon Sgt. Berner’s arrival this C/O [Narup] was told to go to

the armory and get the keys to open the cell. When this C/O returned with the keys both

inmates were cuffed up and compliant.” (Doc. 113, Exh. 6). Plaintiff however maintains

that Narup “was there during part of [him] being attacked.” (Doc. 113, Exh. 1, p. 53:24-

54:1-2). This testimony likewise creates a genuine issue of material fact as to whether

Defendant Narup observed Plaintiff’s beating and whether he breached his duty by

failing to intervene.

In relation to Plaintiff’s allegations against Defendant James, the IDOC Defendants

argue “that there is no evidence whatsoever that Defendant James participated in

anyway.” (Doc. 113, p. 8). They further argue that Plaintiff admitted “he [was] not sure if

Defendants James or Childs did anything.” Id. at p. 10. However, this is contrary to

Plaintiff’s testimony. Plaintiff testified “with regard to Officer James, Officer James was

there, and during the incident Officer James also – that’s another person that I requested

some type of deterrent, if you will, for contamination, effects of the mace, and he was

really nasty, indifferent.” (Doc. 113, Exh. 1, p. 56:11-16). Further, after the November 4th

incident, Plaintiff indicated that Defendant James “threw [his] clothes in the cell. He

would not give it to me. He cursed me, told me spoils go to the winner. That’s how I

remember him, because those were his exact words . . . You got your ass kicked . . . He

refused to give me any help.” Id. at 57:6-14. Plaintiff’s statements provide evidence that

Defendant James was involved in the incident and also suggests that he did not intervene

as he was required to do.

Defendants assert a similar argument for Defendant Childs. Again, Defendants

argue that “there is no evidence whatsoever that Defendant Childs participated in

anyway.” (Doc. 113, p. 8). Defendants asserted that Childs was not scheduled to work on

the date of the November 4th incident, but provide no documentation to demonstrate this

fact. In contrast, Plaintiff testified “I think [Defendant Childs] was there as well. And that

was [one of the] guys cheering on to beat me.” (Doc. 113, Exh. 1, p. 57:19-22). Thus, the

inconsistencies between the parties’ testimony leaves a question for the jury to determine

whether Defendant Childs encouraged Inmate Sankey to continue beating Plaintiff while

he was handcuffed and whether he put Plaintiff at a serious risk of injury.

Lastly, Defendants do not put forward a specific argument regarding Defendant

Berner. However, they generally argue that “Defendants in this case did nothing wrong

and acted in such a way as to protect the institution while attempting to protect the

inmates involved.” (Doc. 113, p. 11). Plaintiff’s testimony remains undisputed as to

Defendant Berner’s involvement. Sergeant Berner arrived on the scene and instructed

Defendant Narup to get the keys from the armory. (Doc. 113, Exh. 1, p. 34:5-19). Further,

the IDOC Defendants admit that Berner sprayed Plaintiff with mace. (Doc. 113, p. 7).

Plaintiff testified that this occurred despite the fact that Plaintiff was handcuffed and that

he was still being attacked by Sankey. (Doc. 113, Exh. 1, p. 35: 4-21). Therefore, there is a

factual dispute, and the jury must be left to determine whether Berner’s actions were

appropriate under the circumstances. As such, Defendants’ Motion for Summary

Judgment is also DENIED for Count 2 of Plaintiff’s Complaint.

III. IDOC Defendants Qualified Immunity

Defendants’ final argument is that they are entitled to qualified immunity. (Doc.

113, p. 10-11). Government officials performing discretionary functions generally are

shielded from liability for civil damages under qualified immunity if their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 817-818 (1982). Under

the qualified immunity doctrine, a defendant “is entitled to dismissal unless (1) the

plaintiffs adequately alleged facts that, if true, would constitute a violation of a statutory

or constitutional right, and (2) the right was ‘clearly established’ at the time of the alleged

violation, such that a reasonable public official would have known his conduct was

unlawful.” Hanson v. LeVan, 967 F.3d 584, 592 (7th Cir. 2020) (citations omitted). Plaintiff’s

testimony, if taken as true, clearly alleges an Eighth Amendment violation, and thus, the

first prong is not met. As to the second prong, it has long been established that the risk of

an attack by a cellmate constitutes a risk of serious harm and that failing to protect an

inmate against such an attack amounts to a constitutional violation. See Walker v. Atchison,

Case No. 3:14-cv-0429-GCS, 2020 WL 1235682, at *4 (S.D. Ill. Mar. 13, 2020) (citing Farmer,

511 U.S. at 834). The second prong is thus not satisfied, and therefore, Defendants cannot

by saved by the qualified immunity doctrine.

CONCLUSION

Accordingly, the Court DENIES Defendants’ Motion for Summary Judgment

(Doc. 112). The Court DIRECTS the Clerk of Court to reinstate Defendants Bebout,

Berner, Brookman, Butler, Childs, Hanks, Jackson, James, Mercer, and Narup in this case.

IT IS SO ORDERED.

DATED: March 31, 2023. Digitally signed by

- . Judge Sison 2

SAlet 0. Done Date: 2023.03.31

17:41:02 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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