United States District Court, N.D. Indiana, South Bend Division
MICHAEL K. GREGORY, Plaintiff,
K. ZIMMERMAN, et al., Defendants.
OPINION AND ORDER
P. SIMON, JUDGE
K. Gregory is a prisoner who is proceeding in this case
without a lawyer against seven correctional officers
“in their individual capacities for compensatory and
punitive damages for using excessive force against him on
April 2, 2017, in violation of the Eighth Amendment . .
..” ECF 6 at 2. One defendant, Michael Lopez, moved for
summary judgment. ECF 53.
summary judgment motion, Lopez denies using any force against
Gregory on April 2, 2017, because he was not present when
Gregory alleges he was beaten. 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 issue 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
issue 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.
Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.
2010). However, a party opposing a properly supported summary
judgment motion may not rely merely on allegations or denials
in its own pleading, but rather must “marshal and
present the court with the evidence she contends will prove
her case.” Goodman v. Nat'l Sec. Agency,
Inc., 621 F.3d 651, 654 (7th Cir. 2010). Summary
judgment “is the put up or shut up moment in a lawsuit
. . ..” Springer v. Durfiinger, 518 F.3d 479,
484 (7th Cir. 2008) (citation omitted).
“core requirement” for an excessive force claim
is that the defendant “used force not in a good-faith
effort to maintain or restore discipline, but maliciously and
sadistically to cause harm.” Hendrickson v.
Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (internal
citation and quotation marks omitted). “[T]he question
whether the measure taken inflicted unnecessary and wanton
pain and suffering ultimately turns on whether force was
applied in a good-faith effort to maintain or restore
discipline or maliciously and sadistically for the very
purpose of causing harm.” Whitley v. Albers ,
475 U.S. 312, 320-21 (1986) (quotation marks and citation
support of his motion for summary judgment, Lopez submitted
the deposition of Gregory in which he describes being
assaulted on April 2, 2017. When asked about the role of
Lopez, Gregory said Lopez was not personally involved with
Q What about officer Lopez?
A I don't think Lopez was there. Lopez was,
everything that happened with Lopez was involved
separately from the beating. Lopez was involved in the
threats and intimidation. I don't believe -- if Lopez was
there, I don't remember him being there.
Q But you named him in the lawsuit because of the threats
that were happening beforehand?
A Right, exactly, being part of it, but not actually -- at
least I don't remember him being there. But it's a
possibility he was. I don't know for sure, but I
don't think so.
ECF 53-1 at 44:1-13 (emphasis added).
response to the summary judgment motion, Gregory provides no
evidence indicating that Lopez was present when he was
assaulted on April 2, 2017. Rather he argues there is an
issue of fact about whether Gregory verbally threatened and
intimidated him in concert with the other defendants both
before and after the attack. ECF 56. However, there cannot be
a genuine issue of material fact about what Lopez said
because Gregory is only proceeding in this case on a claim of
excessive force on April 2, 2017. Because the undisputed
evidence shows Lopez did not use excessive force against
Gregory on April 2, 2019, the summary judgment motion must be
these reasons, the court:
(1) GRANTS the summary judgment motion ...