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Littler v. Martinez

United States District Court, S.D. Indiana, Terre Haute Division

September 25, 2018

CHRISTOPER MARTINEZ, et al. Defendants.


          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Phillip Littler is an inmate currently incarcerated at Wabash Valley Correctional Facility (“Wabash Valley”). He brought this action pursuant to 42 U.S.C. § 1983 against numerous State Defendants, Nurse P. Hagemeier, and Corizon. He alleges that the State Defendants routinely use excessive force against him during cell extractions, and that Corizon maintains a policy or practice of not providing medical treatment following those cell extractions. At issue in this case are uses of force against Mr. Littler on December 27, 2015, and his allegations that Nurse Hagemeier failed to provide him adequate medical treatment following those uses of force. The Court addressed the State Defendants' motions for summary judgment regarding the excessive force claims in a previous Order.

         Presently pending before the Court and addressed in this Order is Nurse Hagemeier's and Corizon's (the “Medical Defendants”) joint motion for summary judgment. In the previous summary judgment Order, the Court explained at length its concerns regarding what appear to be false sworn statements submitted by the State Defendants. The Court ordered one of the State Defendants' and his counsel to show cause why they should not be sanctioned. After these Orders were issued, the Medical Defendants filed their reply brief along with a second sworn declaration from Nurse Hagemeier. As explained further below, her second declaration includes what ismay well be a false sworn statement.

         The Court already observed that it hopes this case represents “an isolated incident of conduct and litigation gone awry, but is gravely concerned that it is not.” Filing No. 184 at 1. When the Court made this observation, it did not anticipate that the Court's concerns would deepen. But they have. Show cause orders similar to those issued to the State Defendants will issue by separate order.

         For the reasons explained below, the Medical Defendants' motion for summary judgment is denied.

         I. Summary Judgment Legal Standard

         Summary judgment is appropriate when the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See 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). To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).

         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, 477 U.S. at 248. If no reasonable jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).

         II. Background

         A. Compliance with the Local Rules

         Before setting forth the facts relevant to the Medical Defendants' motion for summary judgment, the Court must first determine which facts it may consider. In their reply brief, the Medical Defendants argue that the Court should treat their facts as undisputed because Mr. Littler's response fails to comply with the Local Rules in two respects.

         First, the Medical Defendants point to his non-compliance with Local Rule 56-1. Subsection (e) requires a party to “support each fact the party asserts in a brief with a citation to” admissible evidence in the record. Subsection (f)(1) states that facts “supported by admissible evidence by the movant are admitted without controversy except to the extent that (A) the non-movant specifically controverts the facts in that party's ‘Statement of Material Facts in Dispute' with admissible evidence[.]” The Medical Defendants argue that Mr. Littler failed to comply with these provisions because, although his response contains a “Statement of Material Facts in Dispute” section, the facts contained therein are not accompanied by citations to the record.

         Second, the Medical Defendants argue that the Court should strike Mr. Littler's response because it exceed the permitted length. Local Rule 7-1(e)(1) provides that responses “may not exceed 35 pages, ” and Mr. Littler's response was 52 pages.

         The Court has “discretion to require strict compliance with its local rules governing summary judgment.” Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (citation and quotation marks omitted). “It does not follow, however, that district courts cannot exercise their discretion in a more lenient direction: litigants have no right to demand strict enforcement of local rules by district judges.” Id.; see Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (“We have not endorsed the very different proposition that litigants are entitled to expect strict enforcement by district judges. Rather, it is clear that the decision whether to apply the rule strictly or to overlook any transgression is one left to the district court's discretion.” (citation and quotation marks omitted)).

         The Court will not enforce strict compliance with the Local Rules in this instance. First, Mr. Littler, who is proceeding pro se in this action, filed a response brief that is clearly written and articulates which of the Medical Defendants' facts he disputes. Second, the Medical Defendants have not set forth how they were prejudiced by Mr. Littler's non-compliance with the Local Rules.

         Finally, although Mr. Littler technically did not comply with the Local Rules in the two respects outlined above, his non-compliance was only that-technical. As to the lack of citations to admissible evidence, the Medical Defendants overlook the fact that the factual assertions in his response are themselves admissible evidence, as his response brief is sworn under penalty of perjury. See Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (“By declaring under penalty of perjury that the [response] was true, . . . [the plaintiff] converted the [response], or rather those factual assertions in the [response] that complied with the requirements for affidavits specified in the rule . . . into an affidavit.” (citation and quotation marks omitted)). Thus there was no need for Mr. Littler to then cite to other admissible evidence. As to Mr. Littler exceeding the 35-page limit, many of the handwritten pages in his response contain significantly fewer words than a page typed on a word-processor would. Thus it is likely his 52-page response brief is not much longer than a typed 35-page brief, if at all.

         In sum, given that Mr. Littler is proceeding pro se, that his non-compliance with the Local Rules was at most technical, and that it did not prejudice the Medical Defendants, the Court will take a more “flexible approach” by declining to strictly enforce the Local Rules, “as it is entitled to do.” Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016). The Court will consider and include Mr. Littler's admissible evidence contained in his sworn response below.

         B. Factual Background

         1. Events on December 27, 2015

         On December 27, 2015, Mr. Littler was subject to several uses of force by the State Defendants. Those uses of force are discussed in detail in the Court's previous Order denying the State Defendants' motion for summary judgment. See Filing No. 184. For the purposes of this motion, they only need to be set forth in limited detail.

         Mr. Littler was escorted to a shower cell to be strip searched, but Mr. Littler refused to remove his clothing for the strip search. This led the State Defendants to utilize three different types of force against him.

         First, defendant Justin Shroyer sprayed Mr. Littler with a chemical agent, OCV MK-9s. Not long thereafter, Mr. Littler was sprayed with at least a second round of the chemical agent. Mr. Littler states that the chemical agent “tremendously bothered” him. Filing No. 173 at 2. He asserts that he was “repeatedly” assaulted with it “over a protracted time frame.” Filing No. 174 at 6.

         Second, defendant Mark Shroyer shot Mr. Littler directly in the face at close range with a pepperball gun. Mr. Littler turned around “so as to no longer expose his face to the assault, ” and Mark Shroyer “immediately fired several more rounds in rapid succession to the back of [Mr. Littler's] head until the weapon stopped working.” Filing No. 174 at 34; see Filing No. 173 at 2. Pictures taken after the fact and video evidence following the incident show that the plaintiff sustained significant injuries to at least his nose and upper lip, including substantial abrasions ...

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