United States District Court, S.D. Indiana, Terre Haute Division
ORDER DISCUSSING MOTION FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Chief Judge
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.
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.
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.
reasons explained below, the Medical Defendants' motion
for summary judgment is denied.
Summary Judgment Legal Standard
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).
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).
Compliance with the Local Rules
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
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.
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.
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)).
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.
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
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.
Events on December 27, 2015
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.
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.
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.
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 ...