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Johnson v. Dykstra

United States District Court, N.D. Indiana, South Bend Division

May 24, 2019

DEDRICK JOHNSON, Plaintiff,
v.
LIEUTENANT JEREMY DYKSTRA, et al., Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE, UNITED STATES DISTRICT COURT

         All four defendants in this case are corrections officials who are moving for summary judgment on Dedrick Johnson's claims arising from an incident during his incarceration in the Indiana State Prison [DE 78]. Johnson claims he was subjected to substandard conditions of confinement, including foul odors, which forced him to rip wires out of his jaw to avoid choking on his own vomit. All of the claims against the Warden, Ron Neal, and the Deputy Warden, George Payne, are without merit and will be dismissed. But there are material issues of fact that are in dispute on some of the claims against correctional officers Anthony Watson and Jeremy Dykstra, and those claims must be resolved by a jury.

         Factual Background

         Under the subtitle “Statement of Material Facts Not In Dispute, ” Defendants set forth facts they propose are undisputed, each supported by a citation to exhibits in the record. [DE 79 at 2-3.] Johnson has a section of his response brief entitled “Statement of Material Facts in Dispute.” [DE 87 at 2-3.] But instead of responding to the numbered paragraphs in the Defendants' statement of material facts, Johnson has set forth a factual narrative. Some of the facts are not supported by evidence, and some improperly cite to the “facts” previously stated by me in my earlier screening order [DE 10]. See L.R. 56-1(b). I will eliminate from consideration any argument, conclusions, and assertions unsupported by the documented evidence of record offered in support of the statement. See Fed. R. Civ. P. 56(e).

         Defendants criticize Johnson for citing to his own affidavit[1], but this is entirely appropriate. “[A party's own] deposition testimony, affidavits, responses to interrogatories, and other written statements by their nature are self-serving . . . As we have repeatedly emphasized over the past decade, [such evidence is] perfectly admissible . . . at summary judgment.” Hill v. Tangherlini, 724 F.3d 965, 967-68 (7th Cir. 2013). As long as a competent declarant makes statements based upon personal knowledge, the affidavit can support a summary judgment motion. Id. at 968.

         However, there is another problem with Johnson's affidavits that neither party has raised. The affidavits are not notarized, but both contain Johnson's signature and state they are made under the penalties of perjury. Under 28 U.S.C. § 1746, a declaration “under penalty of perjury, and dated” is admissible in lieu of a sworn affidavit on a motion for summary judgment. 28 U.S.C. § 1746 (emphasis added); see also Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985). Thus, notarization is not required. But, the statute expressly requires that to substitute for a sworn declaration or affidavit, an unsworn declaration must be dated. Johnson's affidavits do not meet the requirements of the statute because they are not dated.

         But it is equally true that the Defendants did not raise this objection or file a motion to strike the affidavits. So the issue has been waived by the Defendants. Additionally, Johnson started off this case pro se. I usually prefer to base my decisions on the merits of a case, instead of a technicality. Indeed, I am mindful that “a district court should not be unnecessarily hyper-technical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantive requirements of execution are satisfied.” Pfeil, 757 F.2d at 859. So I will exercise my discretion and will overlook the defect that the affidavits are undated.

         Here are the facts viewed in the light most favorable to Johnson: Johnson was confined at the Indiana State Prison. Prior to May 26, 2016, Johnson's jaw was broken, which required stitches and his mouth being wired shut. [Second Amended Complaint (“SAC”), DE 51, ¶ 23.] On May 26, 2016, Johnson was placed in a Special Management Cell (“SMC”) by Dykstra and Watson. [Johnson Aff., DE 87-8, ¶ 3.] According to Johnson, the cell he was placed in “had fecal matter covering its walls, floors, and door. The cell's toilet was smeared and caked with vomit and feces. The cell's floor was also coated with urine.” [Id., ¶ 4.] Johnson attests that “[t]he sight and smells emitting from the Special Management Cell were such that Lieutenant Jeremy Dykstra and Lieutenant Anthony Watson could see and smell the conditions of the cell in which they placed me.” [Id.]

         Due to the “overwhelming stench and repulsive state” of his cell, Johnson “began to gag and vomit uncontrollably.” [Id., ¶ 7.] Johnson ripped out the wiring which kept his mouth shut so he would not choke on his own vomit. [Id., ¶ 8.] In so doing, he experienced extreme pain and a tooth was broken. [Id.] ¶ 1:20 p.m. on May 26, 2016, Johnson informed Officer M. Smith that he ripped out the wires in his jaw, which broke a tooth. [DE 78-2 at 6.] Ten minutes later, at 1:30 p.m., Johnson was escorted to medical for treatment. [Id.] Johnson was kept in the same SMC for six days, in which none of the Defendants took any action to improve the deplorable conditions of his cell. [Johnson Aff., DE 87-8, ¶ 10.]

         In addition to his own affidavit, Johnson submitted several affidavits from fellow inmates (which suffer the same defect as Johnson's affidavits of being undated). Johnson submitted the affidavit of Anthony Cross, who is also currently incarcerated at the Indiana State Prison. [DE 87-9.] Cross states he “has personal knowledge of the inhumane conditions at Indiana State Prison in general and also has personal knowledge that the conditions of the Special Management Cells at Indiana State Prison are unsanitary and inhumane.” [Id., ¶ 3.] Similarly, Johnson provided an affidavit from Jermaine Bradley, another inmate who attested to the same plus that he personally knew that the SMC where Johnson was held from May 26-31, 2016, was covered in feces, vomit, and urine, and that Johnson had to rip the wiring out of his mouth so he would not choke on his own vomit. [DE 87-3.]

         The four defendants are comprised of the following people: Dykstra and Watson were correctional lieutenants assigned to the dorm in which Johnson was housed. [DE 78-2 at 4.] Neal was the Warden of the Indiana State Prison. [SAC, ¶ 10.] While Payne is also a named defendant, it was determined that Payne was not employed at the Indiana State Prison during the pertinent time frame. He instead was employed at the Westville Correctional Facility at that time. [DE 78-1 at 2.]

         In their statement of material facts, Defendants allege that Johnson does not have any evidence that they were aware of a strong likelihood that Johnson would harm himself in the near future. [DE 79 at 3.] Defendants also submit that Johnson does not have evidence that any of them consciously failed to take reasonable measures to prevent Johnson from seriously harming himself or that they ever denied or delayed his access to medical care. [Id.]

         Discussion

         Summary judgment must be granted when “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 genuine dispute of material fact exists when “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 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine dispute of material fact exists, the Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). However, “a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citations omitted).

         I. Monell Claims (Count I)

         The second amended complaint sets forth claims against Neal and Payne in their individual and official capacities alleging the policies, customs and practices of the Indiana State Prison caused the violation of Johnson's constitutional rights and that it failed to properly train its employees. [SAC at 6.] Municipalities may be held liable under § 1983 if their official policies, including unwritten customs, cause constitutional violations. See Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690-91 (1978).

         A. Official Capacity Claims Against Neal and Payne

          Let me first address the Monell claims against Neal and Payne in their official capacities. Because a state official sued in his official capacity is not a “person” within the meaning of section 1983, the official capacity claims against Neal and Payne are really suits against the state. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Moreover, a claim for money damages against Neal and Payne in their official capacities (which is a suit against the state), is barred by the Eleventh Amendment and the doctrine of sovereign immunity. Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000).

         It is necessary to walk through this because Johnson contests the applicable law. Under 1983, a suit brought against an officer in his official capacity is actually a suit against the government entity for which he works. Kentucky v. Graham, 473 U.S. 159, 165 (1985). The Eleventh Amendment provides sovereign immunity to states and state officials acting in their official capacity. Id. at 167; Meadows v. State of Indiana, 854 F.2d 1068, 1069 (7th Cir. 1988); Lundeen v. Rhoad, 991 F.Supp.2d 1008, 1016-17 (S.D. Ind. 2014). While Johnson may bring suit against state officials in their official capacity for injunctive relief, he may not bring suit for monetary damages for an alleged constitutional violation. See Watkins v. Blinzinger, 789 F.2d 474, 484 (7th Cir. 1986); Lundeen, 991 F.Supp.2d at 1017. Because Johnson is not alleging an ongoing violation of federal law seeking relief “properly characterized as prospective, ” McDonough Assocs., Inc. v. Grunloh, 722 F.3d 1043, 1051 (7th Cir. 2013), but rather seeks only monetary damages [SAC at 9-10], defendants Neal and Payne are shielded from liability by sovereign immunity and are entitled to summary judgment on Johnson's official capacity Monell claims.

         B. Individual Capacity Claims ...


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