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Lewis v. Gilmore

United States District Court, S.D. Indiana, Indianapolis Division

September 2, 2016

PAUL LEWIS, Plaintiff,
v.
BEVERLY GILMORE, Defendant.

          ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT

          SARAH EVANS BARKER, JUDGE.

         The parties to this civil rights action are plaintiff Paul Lewis, an Indiana prison, and defendant Beverly Gilmore, who was formerly employed by the Indiana Department of Correction (“DOC”) at the facility where the plaintiff was confined. Lewis' claim is that in 2011 Casework Manager Beverly Gilmore permitted his cell to be opened and Lewis to be raped. He seeks “permanent injunctions, compensatory damages [and] punitive damages, ” although the claim for injunctive relief has been dismissed. In addition, claims against other defendants were dismissed pursuant to 28 U.S.C. § 1915A(b) as legally insufficient in paragraphs 4 and 5 of the Entry of January 27, 2014.

         Defendant Gilmore has appeared by counsel and seeks resolution of Lewis' claim through the entry of summary judgment. Lewis has not responded to that motion.

         For the reasons explained in this Entry, the motion for summary judgment must be granted.

         Summary Judgment Standard

         “The court shall grant summary judgment 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 "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Defendant Gilmore challenges Lewis' claim for lack of evidence. The moving party on summary judgment need not do more. See Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (moving party may simply point out “an absence of evidence to support the nonmoving party's case”). The court will enter summary judgment against a party who does not “come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question.” Id. at 1167. Once the movant discharges her burden, the burden shifts to the nonmovant to “make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322. To satisfy this burden, a nonmovant must “go beyond the pleadings . . . to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor.” Modrowski, 712 F.3d at 1169 (internal quotation marks omitted). “A plaintiff may not defeat the defendant's properly supported motion for summary judgment without offering any significant probative evidence tending to support the complaint.” Tri-Gen Inc. v. Int'l Union of Operating Engineers, Local 150, AFL-CIO, 433 F.3d 1024, 1038 (7th Cir. 2006).

         In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). However, “before a non-movant can benefit from a favorable view of the evidence, it must show that there is some genuine evidentiary dispute.” SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009).

         Lewis has not opposed the motion for summary judgment. The consequence of this is that he has conceded the defendant's version of the facts. The Seventh Circuit has “consistently held that a failure to respond by the non-movant as mandated by the local rules is an admission.” 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).

         Findings of Fact

         At the time pertinent to his claim in this action Lewis was confined at the Wabash Valley Correctional Facility (“Wabash Valley”), assigned to Cell A-1201, and Gilmore was a casework manager at Wabash Valley.

         Lewis has a longtime nemesis, Lake County Deputy Sheriff Sullivan. Lewis alleges that on June 18, 2011, Gilmore permitted Sullivan to enter the Wabash Valley cell house to which Lewis was assigned, that Gilmore did so in return for having been paid $500 by Sullivan, and that Gilmore drugged Lewis, causing Lewis to become unconscious and enabling Sullivan to rape Lewis. In contrast ...


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