Opinion
Case No. 99 C 50131
March 18, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff, Bishop Roosevelt Billups, Jr., has tiled a first-amended complaint against defendants, Lamark Carter, Michael Yuswak, and Robert Hayes, all sued in their individual capacities as the warden at Dixon Correctional Center ("Dixon"), a correctional lieutenant at Dixon, and a correctional officer at Dixon, respectively. Billups alleges a claim against these defendants under 42 U.S.C. § 1983 for violations of his Eighth Amendment right to be free from cruel and unusual punishment while an inmate at Dixon. Jurisdiction and venue are proper based on 28 U.S.C. § 1331, 1391(b). Before the court is defendants' motion for summary judgment, filed pursuant to Federal Rule of Civil Procedure 56.
Billups proceeds under two theories, the first being that Yuswak and Hayes used excessive force to restrain him on April 3, 1997. Billups described the events of that day as follows in his deposition. He was on his way to the dayroom of Unit 29 at Dixon, to eat some "fried chicken, spaghetti and a lot of other good stuff, potato salad and pop," when a corrections officer (not named as a defendant in this suit) demanded he surrender the food. The officer apparently believed Billups had obtained the food by "trading and trafficking" — a violation of Dixon's rules. When Billups refused, the officer demanded Billups produce his identification. Billups ignored the officer and continued walking to the day room. Alter sitting down at a table in the day room, four other officers approached Billups, including Yuswak and Hayes. At one point after being told he was being taken to segregation, Billups says he pushed the plate of food across the table in Hayes' general direction and onto the floor. Some of the food got on Hayes, although that was not Billups' intent. Hayes then lunged across the table and struck Billups in the face. He repeatedly punched Billups again several times as the other officers tried to restrain him (Billups). All the while, Billups said he voluntarily put his hands behind his back so he could be handcuffed and did not resist by swinging his arms or trying to get away. As they escorted Billups to the segregation unit, he says he was walked intentionally into a glass door. It is undisputed Billups ended up with a fractured cheekbone, along with various cuts and bruises, as a result of this incident. Hayes and Yuswak naturally dispute Billups' version of events leading up to his injuries. They testified in their depositions that Billups flung the plate of food at Hayes, disobeyed at least seven direct orders during this entire incident (a fact Billups does not actually contest), and physically resisted their efforts to take him to segregation. They also denied Hayes ever punched or hit Billups. Given these conflicting accounts, the court finds summary judgment is improper on the excessive force claim. See, e.g., Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000) (questions of fact precluded summary judgment on claim that one officer beat and kicked plaintiff while second officer stood idly by without intervening); Dorsey v. St. Joseph County Jail Officials, 98 F.3d 1527, 1529-30 (7th Cir. 1996) (questions of fact precluded summary judgment on excessive force claim). For the same reason, the court denies these defendants' rather perfunctory assertion of qualified immunity.
Billups' second theory — that all three defendants were deliberately indifferent to his injuries caused by the incident in the day room — does not fare as well. As for Yuswak and Hayes, even assuming these two knew of Billups' injuries, Billups admits he received medical attention immediately upon arriving at segregation by a medical technician or nurse. He complains the technician or nurse refused his requests to see a doctor, have x-rays taken, and be given more pain medication, and that he was left to suffer in segregation for another two weeks without further medical care. But while this may support a claim against the technician or nurse, it proves nothing about Yuswak and Hayes. At that point these two were out of the picture and Billups has introduced no evidence from which to infer they had anything to do with delaying or withholding further treatment from him. The same is also true of Warden Carter. Billups testified Carter visited him when he was in segregation and asked him about what happened out of concern for him. He also stated Carter "took it upon hisself, seeing that I needed medical treatment, to get me over to see a doctor." LR 56.1(a) ¶ 16; Def.Exh., Billups dep., p. 68) Thus, far from being "deliberately indifferent" Billups himself credits Carter with ordering additional medical care for him. In short, Billups has not come close to introducing evidence that these defendants were "subjectively aware" of Billups' serious medical needs and consciously disregarded them nonetheless by intentionally interfering with treatment once prescribed or failing to provide prompt treatment. See Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001); Chapman v. Keltner, 241 F.3d 842, 845-46 (7th Cir. 2001). With this being the only claim brought against Carter, the court dismisses him as a defendant.
For the reasons stated above, defendants' motion for summary judgment is granted in part and denied in part. Billups may proceed only on his excessive force claim; his deliberate indifference claim is hereby dismissed and Carter is dismissed as a defendant.