United States District Court, S.D. Indiana, New Albany Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
WALTON PRATT, JUDGE
Levi Creedon (“Mr. Creedon”), an inmate at
Branchville Correctional Facility, brought this civil rights
action pursuant to 42 U.S.C. § 1983 alleging violations
of his Eighth Amendment rights while he was a pretrial
detainee at the Floyd County Jail. The defendants moved for
summary judgment. Mr. Creedon has not responded and the time
to do so has passed. The motion is now ripe for review. For
the reasons explained in this Order, the defendants are
entitled to summary judgment on all of Mr. Creedon's
Summary Judgment Standard
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Williams v.
Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). “A
genuine dispute as to any material fact exists ‘if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'” Daugherty v.
Page, 906 F.3d 606, 609-10 (7th Cir. 2018) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Gekas v. Vasilades, 814 F.3d
890, 896 (7th Cir. 2016). The moving party is entitled to
summary judgment if no reasonable fact-finder could return a
verdict for the non-moving party. Nelson v. Miller,
570 F.3d 868, 875 (7th Cir. 2009). 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.
Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717
(7th Cir. 2018). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are
left to the fact-finder. Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014). The Court need only consider
the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh
Circuit Court of Appeals has repeatedly assured the district
courts that they are not required to “scour every inch
of the record” for evidence that is potentially
relevant to the summary judgment motion before them.
Grant v. Trustees of Indiana University, 870 F.3d
562, 573-74 (7th Cir. 2017). Any doubt as to the existence of
a genuine issue for trial is resolved against the moving
party. Anderson, 477 U.S. at 255.
consequence of Mr. Creedon's failure to respond to the
motion for summary judgment is that he has conceded the
defendant's 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.”); see S.D. Ind.
Local Rule 56-1(b) (“A party opposing a summary
judgment motion must . . . file and serve a response brief
and any evidence . . . that the party relies on to oppose the
motion. The response must . . . identif[y] the potentially
determinative facts and factual disputes that the party
contends demonstrate a dispute of fact precluding summary
judgment.”). 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).
incident underlying this action was recorded on video. The
defendants have provided the video to the Court, and the
Court has reviewed it. Dkt. 44. On February 11, 2018, Mr.
Creedon was incarcerated at the Floyd County Jail. Two other
individuals housed in the same dormitory as Mr. Creedon began
fighting. Officer Talbott was the roaming officer, and he
responded to the call about a physical altercation between
inmate Joseph Collins and another unidentified individual.
video shows Officer Talbott arrive in the dormitory and place
Mr. Collins in handcuffs. Officer Talbott ordered the inmates
to lie down both when he entered the dormitory and after
placing Mr. Collins in handcuffs. While escorting Mr. Collins
out of the dormitory, Officer Talbott noticed Mr. Creedon
standing near the entry to the shower area. Officer Talbott
again ordered Mr. Creedon to get on the floor. When Mr.
Creedon failed to comply, Officer Talbott took Mr. Creedon by
the arm and placed him in a prone position on the floor.
Other officers arrived in the dormitory, and Officer Archer
assisted Officer Talbott with placing Mr. Creedon on the
floor. Officer Archer then remained crouched over Mr. Creedon
until Officer Talbott identified the other individual
involved in the physical altercation.
video depicts that Officer Talbott checked the shower area
and other areas of the dormitory. He then placed the other
inmate involved in the physical altercation with Mr. Collins
in handcuffs. Officers escorted the two individuals out, and
Mr. Creedon and the other individuals in the dormitory stood
defendants recognize that Mr. Creedon was a pretrial detainee
at the time of the incident. Therefore, the claim of whether
the defendants subjected Mr. Creedon to cruel and unusual
punishment is analyzed under the Fourteenth Amendment.
“[A] pretrial detainee can prevail by providing
objective evidence that the challenged governmental action is
not rationally related to a legitimate governmental objective
or that it is excessive in relation to that purpose.”
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2475
nonmoving party, Mr. Creedon is entitled to all reasonable
inferences in his favor drawn from the admissible evidence
and otherwise undisputed facts. See Premcor USA, Inc. v.
Amer. Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir.
2005). However, the Court must also “view the facts