to another cell. Jd at ]17. On July 10, West and Spraggins approached Hosey to inquire about the
letter and whether one of them would be transferred to another cell. Jd at 47 18-21. Hosey
responded he would not move either of them. Je/, at 22. Over the next few days, West continucd
to ask to be moved or otherwise separated from Spraggins. /d. at 425,

On July 16, at approximately 1:00 a.m., Spraggins attacked West. Jd. at §26. In defending
himself, West hit his hand against the wall. /d at $28, This caused pain in West's hand, which
became extremely swollen and turned colors. Jd. at "29-30. He could not bend his hand. Jd. at
$29, According to West, he saw Cattanco that moming and showed him the injury. Jd. at 4"\ 31-32.
Cattanco purportedly refused to treat the injury because West could not immediately produce his
identification card, Jd. at 433-35. West claims that Cattaneo told him to “catch” him the next day.
Id. at 34. The pain worsened and prevented West from sleeping more than ten to fifteen minutes
at atime. Jd. at 4¥[ 36-37.

On July 17, Cattaneo examined West’s hand. /d, at § 41. According to West, the
examination caused extreme pain. fd. at "| 43, West was purportedly unable to move his fingers or
make a fist upon request. Id. at | 42. Cattaneo refused West’s requests for an x-vay and a doctor.
Jd. at 46-49. Instead, Cattanco told West that he did not need an x-ray, that he only had “some torn
tissues” and to “stop bullsh*tting.” Jd, at 9 44, $1. According to West, Cattaneo promised but
failed to provide Tylenol that day. /d. at {1 51,53. The pain became unbearable and extreme, and
West remained unable to sleep for more than ten to fifteen minutes at atime. /d. at 955-56, On
July 18, West did not receive any Tylenol, Jd at 60. Defendants readily admit that Cattaneo

examined West’s hand injury on July 17, Def. Facts at] 1. However, they maintain the examination


denied the request. Over the next few days, West continued to request a cell transfer. He was not
transferred. Ultimately, Spraggins attacked West on July 16 and 19. After the second allack, West
was taken to the hospital to have surgery on his injured hand. Absent admissible evidence to the
contrary, summary judgment as to liability on Count I must be granted.

Ill, ‘Failure to Provide Medica! Care

Under the Eighth Amendment, prison officials have a duty to refrain from “deliberate
indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 105 (1976).
Deliberate indifference is not synonymous with negligence or medical malpractice. 4d 106. Not
“every claim by a prisoner that he has not reccived adcquate medical treatment states a violation of
the Eighth Amendment.” Jd. at 105. Rather, only intentional or criminally reckless conduct is
sufficient to show deliberate indifference. /armer, 511 U.S. at 837; Salazar v. City of Chicago, 940
F.2d 233, 239-40 (7" Cir. 1991). West argues that summary judgment is warranted as to liability
because Cattaneo failed to provide him with medical treatment or care in violation of the Eighth
Amendment.

West maintains that he suffered from an excruciatingly painful broken hand that went
untreated despite numerous complaints to Cattaneo. West emphasizes thal surgery was ultimately
necessary, Defendants dispute West’s account. Defendants point to the Medical Progress notes for
July 17, indicating that at the time of examination, West had only slight pain occasioned by a
basketball injury and was given Tylenol. Drawing all reasonable inferences in Cattaneo’s favor, a
genuine issue of material fact exists as to whether Cattaneo was deliberately indifferent to West’s

medical needs. Accordingly, summary judgment as to liability on Count Il is denied.



(court may use discretion in deciding whether to deem admitted response that is the functional
equivalent of a denial).

West’s responses to defendants’ 56.1(b)(3)(B) statement of additional facts challenge the
admissibility of defendants’ supporting materials. As discussed above, the Counsclor’s Response
to Committed Person’s Grievance Report is unauthenticated and inadmissible hearsay. Woods, 234
F.3d at 988. Accordingly, the court disregards 4{[ 4-5. However, defendants’ objection to 4 1-3 is
rejected. The parties have stipulated that the Medical Progress Notes of July 17, 2001 are authentic
and admissible under the Federal Rule of Evidence 803(6) exception to the hearsay rule. Rule
803(3) and (4) allow for the admissibility of statements in the Medical Progress Notes regarding
then-existing physical conditions and/or medical diagnosis or treatment. Nevertheless, the court will
not treat {3 as admitted because West claims he received no Tylenol in {53 and 60 of his Rule
56.1(a)(3) statement of facts. Adams, 2004 WL 161483 at * 1, fn. 1.

116 Facts

All facts are undisputed unless otherwise noted. In 2001, West was an inmate at Stateville
Correctional Center. Pl. Facts al 5. At that time, Ioscy was responsible for cell assignments and
transfers in his capacity as the facility’s Housing Unit Superintendent, and Cattaneo was a medical
technician for West's prison wing, Jd. at “f] 12, 31,

On July 8, 2001, West argued with his cellmate Spraggins over personal property he believed
was missing. Jd, at 4/6. They fought. /d. The next day West told prison guards Sandridge and
Calmes of the fight. Id. at {§7-9. West told Calmes he wanted to be moved to another cell for his
safety, Id. at] 10. Later that day, Calmes told West that Hosey had denied the request. Id. at 415.

Spraggins then submitted a letter to Hosey through Calmes requesting that one of them be moved


merely revealed West injured his hand playing basketball, had slight pain, and was given Tylenol.
Def. Facts at §f[ 2-3; Def. Resp. at { 43.

On July 19, West was attacked again by Spraggins and two other inmates. Pl. Facts at] 61.
Prison guards intervened, placing all four inmates in the segregation unit. Jd, at $f] 62-64. While in
segregation, West was examined by a medical technician, /d. at 65. West’s hand was later x-rayed
and determined to be broken. Jd. at {{] 66-68. Surgery was performed on July 26. Jd. at $7] 69-70.
West claims “on information and belief that [his] fractures required the insertion of a metal piece,
and four (4) screws to mend it.” Jd. at § 71.

DISCUSSION

1 Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P, 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. Nat'l Human Res. Comm., Inc.,
218 F.3d 719, 723 (7" Cir. 2000). Once a moving party has met its burden, the non-moving party
must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial.
Fed, R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7" Cir. 1999). The court considers
the record as a whole and draws all reasonable inferences in the light most favorable to the party
opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7" Cir. 2000). 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 y. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v.

Philip Morris, Inc., 216 F.3d 596, 599 (7* Cir. 2000).


CONCLUSION
West is entitled to judgment as a matter of law as to liability on Count I. A genuine issuc of

material fact precludes summary judgment as to liability on Count IT,

March 15, 2004 ENTER:

Heed 13 One

Suzame3. Conlon
United States District Judge



‘Minute Order Form (06/97)

‘ 4

United States District Court, Northern District of Illinois

Name of Assigned Judy Sitting Judge if Oth
‘ or Magistrate Judge Suzanne B. Conlon thareAsigned Judge
CASE NUMBER 03 C 1009 DATE 3/15/2004
CASE WEST vs, CATTANEO, et al.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

ap) im Filed motion of [ use listing in “Motion” box above.]

(2) im] Brief in support of motion due

3) o Answer brief to motion due___. Reply to answer briefdue____-

4) oO Ruling/Hearing onset fora

(5) Qo Status hearing[held/continued to] [sct for/re-set for)on__—sset for at.

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on__—setfor_ at

([) Q Trial[sct for/re-set for]on at -

(8) im [Bench/Jury trial) [Hearing] held/continuedto__—saat__

(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 CUFRCP4)(ay1) OO FRCP41{a)(2).

ao [Other docket entry] Plaintiff's motion for partial summary judgment [28-1] as to liability is

granted on Count I and denied on Count II. Plaintiff's motion to sirike and dismiss [38-1] is stricken
because it was filed without leave of court, The joint final pretrial order and agreed pattern jury
instructions shall be presented on April 16, 2004 at 9:00 a.m. Plaintiff’s draft shall be submitted to
defendants by April 6, 2004. Trial is set on April 26, 2004, at 9:00 am. ENTER MEMORANDUM

OPINION AND ORDER.
Me Aperrene? ia. Ornbrn]
(1) @ [For further detail see order attached to the original minute order.}
No notices required, advised in open court “opeeument |

22 Nombbet! 0

No notices required. umber ot motiges =

| Notices mailed by judge's staff.

Dockcting to mail notices, \ :

Mail AO 450 form. ves vpn ge hy iii
Copy to judge/magistrate judge. ‘ ‘ US
suiseAdoa
courtroom Sg die maled nice
cB deputy's aba ow

initials

Date/lime received in
sontral Clerk's Office ‘Walling deputy inicals



Th. Failure to Protect

Under the Eighth Amendment, “prison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). However,
“an Eighth Amendment violation exists only if* deliberate indifference by prison ollicials effectively
condones the attack by allowing it to happen.’” Langston v. Peters, 100 F.3d 1235, 1237 (7" Cir.
1996) (quoting Haley v. Gross, 86 F.3d 630, 640 (7" Cir. 1996)). Essentially, prison officials must
be aware of facts from which an inference can be drawn that a substantial risk of serious harm exists,
and the official must also draw the inference. Farmer, 511 U.S. at 833; Soto v. Johansen, 137 F.3d
980, 981 (7" Cir. 1998). A prisoner typically shows actual knowledge of impending harm by
demonstrating that he complained to prison officials about a specific threat to his safety. Pope v.
Shafer, 86 F.3d 90, 91 (7" Cir. 1996) (quoting McGill v. Duckworth, 944 F.2d 344, 349 (7" Cir,
1991), cert. denied, 503 U.S. 907 (1992)). West contends that summary judgment is appropriate as
to liability because Hosey failed to protect him from Spraggins despite repeated, specific complaints,
as required by the Eighth Amendment.

Defendants contend that West never complained about Spraggins. This contention must be
rejected. Defendants fail to identily any admissible supporting evidence, Defendants rely on hearsay
contained in a single inadmissible document to support their contention. The undisputed facts
support the conclusion that Hosey was deliberately indifferent to West’s repeated complaints
regarding Spraggins’ continuing threat to his safety, On July 9, West reported the physical
altercation between himself and Spraggins to two prison officials and requested to be moved out of

the cell for purposes of his safety. Calmes informed Hosey of West’s request, but Hosey denicd it.

On July 10, West and Spraggins both reitcrated the request, this time directly to Hosey, He again



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
KENTES WEST, ) Uiwe]
) MAR 4 7 2
Plaintiff, ) No. 03 C 1009
)
v. ) Suzanne B. Conlon, Judge
)
ROBERT CATTANEO, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Kentes West (“West”) sues Mark Hosey (“Hosey”) and Robert Cattaneo (“Cattaneo”)
(collectively “defendants”) under 42 U.S.C. § 1983. Specifically, he claims Hosey failed to protect
him from assaults by his cellmate (Count I) and Cattaneo failed to provide him essential medical
treatment (Count II). West moves for summary judgment as to liability on both claims.

BACKGROUND

I. Local Rule 56,1 Statement of Facts

Local Rule 56.) requires litigants to follow a detailed procedure in filing and responding to
summary judgment motions. Local Rule 56.1 requires both the moving and non-moving partics to
submit a statement of material facts, and to submit a response to the other’s statement of material
facts. Local Rule $6.1(a)(3); Local Rule 56.1(b)(3)(B). The court, in its discretion, may deem facts
admitted to the extent a party fails to support its responses with “specific references to the affidavits,
parts of the record, and other supporting materials relied upon.” Adams y. Cigna Group Ins, Life

Accident Disability Co., No. 02 C 3044, 2004 WL 161483 at *1, fn.1 (NLD. TIL Jan. 22, 2004),

| 4

4



Defendants’ responses to West’s Rule 56.1(a)(3) statement of material facts contain a vast
number of improper assertions of a “lack knowledge or information sufficient to form a belief as to
the truth of the averments.” McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7" Cir. 1998)
(response claiming insufficient information to “admit or deny” improper and constitutes an
admission). Accordingly, the following paragraphs are treated as admissions: $4 6-11, 14-18, 26-30,
36-37, 40, 55-56, 71, 76. In addition, defendants’ responses are often supported only by citation to
defendants’ answer to the complaint. Washington v. MacNeal Hosp., No 97 C 6145, 2000 WL
1273452 at *1 (N.D.IUL. Sept. 6, 2000) (responses predicated on defendant’s answer to amended
complaint improper and treated as admissions). On that basis, the following paragraphs are decmed
admissions: ff] 44-48, 51, 57-60. Moreover, | 19-25 are deemed admissions because they are based
on the Counsclor’s Response to Committed Person’s Grievance Report, which is unauthenticated
and inadmissible hearsay. Woods v. City of Chicago, 234 F.3d 979, 988 (7" Cir. 2000) (evidence
submitted at summary judgment must be admissible at trial under the Federal Rules of Evidence),
Finally, the court notes that defendants’ responses to ff] 32, 39, 43, 49-50, 53, 70, 72-74 and 79 are
either qualified admissions or denials lacking citation to supporting affidavit or document.
Nevertheless, these paragraphs will not be treated as admitted because defendants’ [.ocal Rule
36.1(b)(3)(B) statement of additional facts and the supporting materials cited in defendants’
responses to fff 31, 34-35, 38-39 and 42 provide sufficient support for these responses. Adams, 2004
WL 161483 at *1, fn.1 (court may use discretion in deciding whether to admit responses that Jack
citation to “specific references to the affidavits, parts of the record, and other supporting materials

relied upon”); Lambersky v. Petritis, No. 01 C 3544, 2002 WL 1285883 (N.D.ILL June 11, 2002)