United States District Court, Southern District of Indiana, Indianapolis Division
TIMOTHY G. HENSON, Plaintiff,
BOYD LUNSFORD, et al., Defendants.
ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT
Hon. William T. Lawrence, Judge United States District Court
Plaintiff Timothy Henson, a former inmate of the Pendleton Correctional Facility (“Pendleton”), brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants, officer employed by the Indiana Department of Correction (“IDOC”) at Pendleton, violated his constitutional rights with regard to treatment he received after he was found to have been involved in an altercation with another offender.
On August 2, 2008, defendant Jacox observed Henson interacting physically with another offender and concluded that the two were fighting. Both Henson and the other offender were transported to the Captain’s office for questioning with regard to this incident. Henson now sues, alleging in this Third Amended Complaint, the following claims with regard to the incident: (1) defendant Lunsford, who transported Henson to the Captain’s office, used excessive force in violation of his Eighth Amendment rights when attempting to subdue him during an altercation; (2) defendants Waterman, Beautry, and Ruttan failed to intervene and/or protect Henson from Lunsford’s alleged use of force; (3) defendant Jacox retaliated against Henson in violation of his First Amendment rights when he filed a conduct report against Henson related to the incident; (4) defendant Nickles retaliated against Henson by refusing to process his grievances; and (5) defendant Rains retaliated against Henson by failing to report or discipline the other defendants for their actions. The defendants move for summary judgment. Henson has not responded.
II. Summary Judgment Standard
Summary judgment is appropriate 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). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no reasonable jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).
As noted, despite multiple extensions of time, Henson has not filed a timely response to the motion for summary judgment. The consequence of his failure to do so is that he has conceded the defendants’ version of the facts. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (“[F]ailure to respond by the nonmovant as mandated by the local rules results in an admission.”); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921–22 (7th Cir.1994). This does not alter the standard for assessing a Rule 56(a) motion, but does “reduc[e] the pool” from which the facts and inferences relative to such a motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir.1997).
III. Undisputed Facts
On the evening of August 2, 2008, defendant Jacox, a Correctional Officer at Pendleton, observed Henson engaging in direct and aggressive physical contact with another offender, Dejuan Emerson (“Emerson”). Offenders are not permitted to engage in aggressive and direct physical contact. Based on his observation, Jacox believed that Henson and Emerson were fighting. Jacox therefore called in a Code “10-10” or a “fight” over his radio and then ordered all offenders to their cells so that they could be secured.
Upon returning to his cell, Henson was questioned and visually examined by two correctional officers to determine if he had sustained any injuries during the incident. Henson and Emerson claimed that they were not fighting but were simply engaging in “horse play” or rough housing, wrestling, and shadow boxing. At that point it was determined that both Henson and Emerson would be escorted to the Captain’s office in the Duty Office Building for questioning regarding the incident. Henson and Emerson were then handcuffed behind their backs and escorted to the Duty Office Building by defendants Lunsford and Waterman. During the walk to the Duty Office Building Lunsford believed that Henson began to physically resist him. In response, Lunsford gave him verbal warnings and commands to stop resisting. Henson did not follow Lunsford’s commands and a struggle ensued. During the struggle Lunsford used physical force to subdue Henson and regain control of the situation by placing Henson down on the grass on his stomach with his face to the side and placed one knee on the ground and one on Henson’s back. During his struggle with Henson, Lunsford called in a Code over his radio requesting assistance. At the time of the altercation, Henson outweighed Lunsford by approximately fifty pounds.
When the altercation between Henson and Lunsford began, Waterman helped Emerson down onto his knees and then onto his stomach in the grass approximately 15 to 20 feet away for his own safety. Waterman then assisted Lunsford in subduing Henson. Waterman did not believe that Lunsford’s use of force was excessive.
The altercation between Lunsford and Henson transpired very quickly and only lasted for approximately 2 minutes. During the altercation, both defendants Beaudry and Ruttan were inside the Duty Office Building more than 15 feet away and could not see Lunsford or Henson from their location. Upon arriving at the Duty Office Building, Henson was placed in a dry cell. Beaudry and Ruttan interviewed Henson regarding the incident and Henson was taken to the medical infirmary to be evaluated and to have his injuries photographed. Henson’s complaints consisted of discomfort and swelling to the left side of his face and head, and a red and bruised left wrist. Henson was seen by medical and released to Waterman who escorted him back to the dry cell in the Duty Office Building.
Henson was later returned to his cell. Jacox came to check on Henson and asked to view his injuries. At that time, Henson asked Jacox to contact the superintendent, Brett Mize, and the internal affairs department regarding Lunsford’s use of physical force during transport to the Duty Office Building. Henson threatened that if Jacox did not contact them that he would provide information to internal affairs and the Superintendent regarding his alleged drug use on duty. Henson then informed Jacox that he had already provided the information and would provide additional information if he did not honor his request.
After the incident, Henson was placed on “red tag” status pending further investigation into the events of that day. Henson’s red tag status resulted in his temporary removal from general population activities and ...