United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY UNITED STATES DISTRICT JUDGE
Ray Brown is a prisoner who filed this case without a lawyer.
After screening the case as required by 28 U.S.C. §
1915A, he was granted leave to proceed on two claims:
against Darren Kimbrell in his individual capacity for
compensatory and punitive damages for promoting an
environment of racial hatred which resulted in his fighting
with another inmate on December 8, 2017, either to punish
Brown or for a reason not rationally related to a legitimate
nonpunitive governmental purpose in violation of the
Fourteenth Amendment [and]
against David Howe and Allen Pavel in their individual
capacities for compensatory and punitive damages for using
force against him on December 9, 2017, either to punish Brown
or for a reason not rationally related to a legitimate
nonpunitive governmental purpose or excessively in relation
to a legitimate purpose in violation of the Fourteenth
Amendment . . ..
August 21, 2019, the defendants filed a summary judgment
motion. ECF 52. With the motion, Brown was provided the
notice required by N.D. Ind. L.R. 56-l(f). ECF 55. The notice
A summary-judgment motion has been filed against you.
Attached is a copy of the motion. It asks the court to decide
all or part of your case without a trial. It says that there
should not be a full trial because you cannot win some or all
of your claims. It asks the court to enter judgment against
you. The party that filed the motion will win if the facts
show that party is entitled to judgment. If you do not agree
with the facts in the motion, you must submit affidavits or
other evidence to dispute those facts.
Copies of Rule 56 and Local Rule 56-1 are also attached. You
should carefully read - and follow - all the rules. The
outcome of this case may depend on it. Following the rules
does not guarantee that the summary-judgment motion will be
denied. But if you do not follow the rules, you may lose this
Before the court rules on the motion, you have the right to
file a response. If you do not respond to the
summary-judgment motion, you may lose this case. If you need
more time to respond, you must file a motion asking for more
time before the deadline expires. The court may -but is not
required to - give you more time.
Id. at 1. Attached to the notice was a copy of Local
Rule 56-1 which informed him he had 28 days to file a
response brief and any materials necessary to raise a genuine
dispute. He also had three additional days because the motion
was served by mail. See Federal Rule of Civil
Procedure 6(d). September 23, 2019, was the deadline for
filing a timely response. To date, Brown has neither filed a
response to the motion nor a request for additional time to
do so. Therefore, the court will review the summary judgment
motion without a response from him.
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.” Federal Rule of Civil
Procedure 56(a). A genuine issue of material fact exists when
“the evidence is such that a reasonable [factfinder]
could [find] for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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. Heft v. Moore, 351 F.3d 278,
282 (7th Cir. 2003). Summary judgment “is the put up or
shut up moment in a lawsuit . . ..” Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).
Claim against Darren Kimbrell
Darren Kimbrell was a guard at the Steuben County Jail where
Brown was detained as a pre-trial detainee. Officer Kimbrell
argues he did not promote an environment of racial hatred
which resulted in Brown fighting with another inmate on
December 8, 2017. In his deposition, Brown explained there
was only one racially charged or motivated comment during the
week prior to the fight on December 8, 2019. ECF 53-3 at 7,
Brown deposition at 23:1-7. Brown makes no mention of any
other racially charged or motivated incidents involving
Officer Kimbrell. Brown explained that “a week prior to
the fight, inmate Skylar Wilbur referred to me [in front of]
officer [Kimbrell] as a nigger. And I asked the officer if he
was just going to allow him to call me that; and the officer
stated, ‘Are you just going to let him call you
that?' And that's what happened on that day.”
ECF 53-3 at 4, Brown deposition at 12:19-25. Later in the
deposition, he provided a more detailed explanation of the
Q Let's go back to the first racial name calling that you
talk about in paragraph 1, which was December 2nd, 2017. You
say that the defendant Officer Darren Kimbrell was doing the
walkthrough of C block that time; right?
Q And that's when this Skylar Wilbur said what? What
exactly did he say then?
A Darren Kimbrell was doing a walkthrough. I was playing
cards. And he said something to me, but I couldn't hear
what he said. He just said, “Mr. Brown, ” and
inmate Skylar Wilbur said, “You're just going to
single out the nigger like that?”
Q And where was Skylar sitting at that point?
A He was walking laps. He was basically walking right behind
Officer Darren Kimbrell.
Q And what did Kimbrell say?
A He asked him to repeat it like he couldn't hear what he
said -- like he couldn't believe what he just said. And
Wilbur stated again, “Are you just going to single out
the nigger like that?”
Q What did Officer Kimbrell do then -- or say then?
A By then, he was completing his walkthrough, and he just was
standing there looking at me. And I said, “Are you just
going to let him call me that?” And he looked at me and
says, “Are you just going to let him call you that,
” and he walked out.
Q Did Officer Kimbrell address Wilbur in any other fashion at
that point -- say anything else to him?
Q Did you have any conversation with Wilbur directly?
A No. Q Before then had you had any conversations with
Wilbur? Arguments? Any name calling?
Q So this just came out of the blue, him saying that?
A Well, the kid is white supremacy. And I'm minority in
this jail, so it's not uncommon for people to call me
these racial words.
Q But did Skylar Wilbur ever call you those names before
Q How long had you two been housed in the same cell block?
A Couple weeks.
Q Had anyone else referred to you that way in the cell block
during those few weeks leading up to December 2nd?
A Not other than him and Burton.
53-3 at 6, Brown deposition at 19:25-21:24. Burton is the
inmate with whom Brown fought on December 8, 2017. The only
mention of Burton using a racial slur was on December 8,
2017, immediately before the fight. ECF 53-3 at 5, Brown
deposition at 15:16-19.
verbal harassment does not constitute cruel and unusual
punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the
laws.” DeWalt v. Carter , 224 F.3d 607, 612
(7th Cir. 2000). However, comments which increase the
likelihood of assault may be actionable. Beal v.
Foster, 803 F.3d 356, 357-59 (7th Cir. 2015). Here
however, there is no evidence Officer Kimbrell verbally
harassed Brown. There is no evidence Officer Kimbrell used a
racial slur in reference to Brown. The only evidence is that
Officer Kimbrell did not correct an offender whom he heard
make a racial slur about Brown. Moreover, Brown was not
assaulted. It was Brown who attacked Burton. Here is how
Brown described the fight:
Q Tell me what his exact words were.
A His words to me were, “I'm not paying you shit,