After the struggle was over, defendants placed Negron ina restraint chair in his cell. A nurse
arrived to examine Negron.

Negron was diagnosed with a nasal fracture, with no notations as to the cause. Gerdes
contends that his altercation with Negron was not necessarily the cause of Negron’s nasal injury.
Negron does not dispute that possibility. He concedes that on May 19, 1999 he was attacked by
another inmate, that his nose was broken in this physical exchange as well and that the injuries to
his nose discovered after his struggle with Gerdes could have arisen from cither altercation. No x-
rays were taken following cither the May 19 attack or the August 7 incident.

Although there are no medical records regarding the functionality of Negron’s nose
subscquent to either attack, Negron alleges that he has difficulty breathing out of the left side of his
nose. However, he has not requested or reccived any medical treatment at the Department of
Corrections for that alleged injury.

ANALYSIS

Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law.” Feb. R. Civ. P. 56(c). When considering a motion for summary judgment, the court must
view the record and any inferences drawn from it in the light most favorable to the party opposing
the motion. See Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir, 1991). The moving party may
meet its burden by showing that “there is an absence of evidence to support the nonmoving party’s
case.” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir, 2001) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323), The non-moving party may not rest on the pleadings, but “must set forth specific

facts showing that there is a genuine issuc for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,



Jackson and Collins each testified that Collins did not arrive at Negron’s cell until the end of the incident,
prior to the retrieval of the restraint chair, but after Gerdes’s struggle with Negron, Negron’s own testimony
supports that account. Negron testified that “when it was all over with, after the beating was over with, is
when Officer Neil Collins came. ,.to my cell, and he asked Officer Gerdes what happened.” (Negron Dep.
30). Negron has presented no other evidence reflecting that Collins was at the scene of the altercation or
otherwise had an opportunity (o intervene (o stop Gerdes. Since Negron has not presented a dispute of
material fact as to Collins’s ability to intervenc, and the undisputed facts reflect that Collins was not present
at the time of the altercation, the court grants summary judgment in favor of defendant Collins.

In contrast, the facts regarding Jackson’s ability to intervene arc in dispute. Negron testified that
Jackson arrived after Gerdes started to beat him. Jackson himsclf testified that he arrived at Negron’s cell
in time to witness Gerdes hitting Negron. Jackson testified that he arrived at Negron’s cell in time to sce
Negron lying on his mattress face down with his hands cuffed behind him, with Gerdes standing next to
Negron, and then witnessed Gerdes “punch inmate (Negron, J) in the back twice and push his face into the
mattress.” (Jackson Dep. 45). When viewed in the light most favorable to Negron, the facts could allow
areasonable jury to determine that Jackson arrived at Negron’s cell in time to have a realistic opportunity

to intervene to prevent Gcrdes’s conduct. Therefore, summary judgment as to J ackson is inappropriate,



front of his body and then confronted Negron.

The facts regarding what happened next are in dispute. Gerdes contends that he instructed
Negron to return his hands to behind his back. Gerdes testified at his deposition that Negron did not
comply and that, consequently, Gerdes was compelled to use physical force in order to meet the
threat posed by Negron’s potential usc ofhis hands. A struggle ensued between Gerdes and Negron,
at the end of which Negron was on the floor of his cell. Gerdes has testified that he used a
“minimal” amount of force during the struggle.

Negron’s version of events is significantly different. Negron contends that he retumed his
hands to behind his back at Gerdes’s request, but that Gerdes immediately approached him and
“struck him in the face with his fist repeatedly.” Then, according to Negron, Gerdes grabbed
Negron’s hair and struck him with his fist again. Gerdes grabbed Negton’s legs and dragged him
from his bed to the floor, kicked Negron in the ribs and head, and slammed Negron’s head into the
concrete floor.

Deputy Jackson arrived in Negron’s cell at some point during altercation between Gerdes and
Negron. Defendants claim that Jackson had no opportunity to see the second part of the altercation
because his back was tumed. However, Negron testified that Jackson had ample opportunity to
witness the altercation between himself'and Gerdes, and Jackson testified to seeing “Officer Gerdes,
M., No. 478, punch inmate (Negron, J) in the back twice and push his face into the mattress.”
(Jackson Dep. 45).

It is undisputed (hai Deputy Collins arrived when Negron was on the floor of his cell, after
the altercation had ended. It is also undisputed that Sheriff Ramsey was not present during the

altercation and was not personally involved in the incident in any way.



248 (1986). A genuine dispute of material fact is onc that would allow a “reasonable jury [to] return
a verdict for the non-moving party.” Dorden v. Acevedo, No. 99 C 4381, 2000 WL 12222193, *2
(ND. Ml. Aug. 24, 2000) (citing Anderson, 477 U.S. at 248).

Negron’s Claim Against Deputy Gerdes

Negron alleges that Gerdes used. excessive force against him, without adequate provocation. To
successfully prosecute a Section 1983 claim based on excessive force, Negron must prove that defendants
were “acting under color of state law and that the defendants’ conduct violated the plaintiff's rights,
privileges, or immunities secured by the constitution or laws of the United States.” Chavez v. Illinois State
Police, 251 F.3d 612, 651 (7th Cir. 2001). Use of excessive force “by prison guards against an inmate
without penological justification constitutes cruel and unusual punishment...and is actionable under 42
U.S.C. § 1983." Dorden, 2000 WL 12222193 at *6. The “core judicial inquiry” in excessive force cases
is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Outlaw, 259 F.3d at 837 (quoting Hudson v. McMillian, 503 U.S. 1, 5). That
inquiry turns on a number of different factors, including “the necd for an application of force, the
relationship between that nced and the force applied, the threat reasonably perceived by the responsible
officers, the efforts made to temper the scverity of the force employed, and the extent of the injury suffered
by the prisoner.” DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 1999) (citing Hudson, 503 U.S. at 7).
Summary judgment is appropriate if there is no dispute of material fact as to whether the alleged incident
constitutes a Fourteenth Amendment violation?

However, in this case, the operative facts underlying Negron’s claim against Gerdes are in dispute.

While Gerdes maintained that hc used only “minimal” force, Negron has testified that, immediately after

? Pretrial detainees are protected by the Fourteenth Amendment from government action that amounts to punishment,
rather than the Eight Amendment which applies to convicted prisoners. Mansoori v. Shaw, Case No. 99 C 6155,
2001 WL 1356138, *2 (N.D. Il. Nov, 1, 2001),



CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is granted in part and denied

in part. Summary judgment is granted as to defendant Collins and denied as to defendants Gerdes and

Jackson.
ENTER:
BN. GOTTSCHALL
July 7, 2004 Pos States District Judge



Minute Onder Form (0697)

United States District Court, Northern nis of Illinois

Name of Assigned Judge
or Magistrate Judge

Joan B. Gottschall

Sitting Judge if Other
than Assigned Judge

CASE NUMBER

01 C 6254

DATE

7/7/2004

CASE

Negron vs. Ramsey, et al.

TITLE |

[In the following box (a) indicate the party filing the motion, e.z.. plaintif¥, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion heing presented.)

MOTION:
Defendants’ Motion for Summary Judgment
DOCKET ENTRY:
ql) O Filed motion of [ use listing in “Motion” box above]
(2) oO Bricf in support of motion due
(3) Oo Answer brief to motion duc___._ Reply to answer brief due.
(4) Qa Ruling/Hearingon__setfor_= _sat_
(3) a Status hearing set for 7/28/04 at 9:30 a.m.
(6) a Pretrial conference[held/continued to] (set for/re-set for]on set for__ats
(7) Qo ‘Trial[set for/te-set for] on at
(8) Q [Bench/Jury trial] [Hearing] held/continued tot.
(9) o This case is dismissed [with/without] prejudice and without costs/by/agreement/pursuant to]
OFRCP4(m) OJocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).
do) [Other docket entry] Enter Order. Defendants’ motion for summary judgment [27-1] is granted in

part and denied in part. Summary judgment is granted as to defendant Collins and denied as to defendants
Gerdes and Jackson. Additionally, because plaintiff has withdrawn the only claim against Kenneth
Ramsey, Ramsey is hereby dismissed from this action. Status set for Wednesday July 28, 2004 at 9:30
a.m.

(il) if

No notices required, advised in open court.

For further detail see order attached to the original minute order.

number af notices

+ No notices requited.

Notices mailed by judge’s staff.

Notified counsel by telephone,

X | Docketing to mail notices,

Mail AQ 450 form.

Copy to judge/magistrate judge.

courtroom:
depuly’s
initials

ar ers HT
Date/tinne recetved in
central Clerk's Office

mailing deputy litinls



ordering Negron to place his hands behind his back, Gerdes grabbed Negron’s hair, struck him with his fist,
dragged him from his bed to the floor, kicked him in the ribs and head, and slammed his head and face into
the concrete floor. Those facts, when viewed in the light most favorable to Negron, could allow a reasonable
jury to conclude that Gerdes used excessive force in pacilying Negron. Consequently, summary judgment
on Negron’s excessive force claim is inappropriate.

Negron’s Claims Against Deputies Jackson and Collins

Negron’s Section 1983 claims against Jackson and Collins are based on their alleged failure to
intervene to stop Gerdes’s use of excessive forcc. To obtain damages in a Section 1983 claim against
Jackson and Collins, Negron must prove that those defendants were personally responsible for depriving
Negron of a Constitutional right. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). It is well-
established that a defendant satisfies the personal responsibility requirement of Section 1983 not only if he
affirmatively acts to deprive the plaintiff of a Constitutional right, but also ifhe “fails to act with a deliberate
or reckless disregard of the plaintiff's constitutional rights." Crowder v. Lash, 687 F.2d 996, 1005 (7th
Cir.1982). Police officers who have a rcalistic opportunity to step forward and prevent a fellow officer from
violating a plaintiff's rights through the use of excessive force but fail to do so have been held liable. Miller
v. Smith, 220 F.3d 491, 495 (7th Cir.2000) (citations omitted).

The determination of whether Jackson’s and Collins’s involvement constitutes a Section 1983
violation hinges on whether (1) Gerdes’s actions deprived Negron of a constitutional nght, (2) Jackson and
Collins had a realistic opportunity to intervene on Negron’s behalf to prevent Gerdes’s use of excessive
force, and (3) Jackson and Collins did not act on that opportunity to intervene.

Plaintiff has failed to create a genuine dispute of material fact as to whether Collins had a realistic
opportunity to intervene in the struggle. Although Collins admitted to placing Negron in the restraint chair

shortly after the altercation, there is no evidence that Collins was present during the altercation. Gerdes,



UNITED STATES DISTRICT COURT
FOR TITE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION ROCKETED

JUL 1 2 2004

JOHN NEGRON,

Plaintiff

No. 01 C 6254
Judge Joan B. Gottschall

v.

)
)

)

)
)
)
KENNETH RAMSEY, Sheriff of Kane )
County, NELL COLLINS, Star #428, M. )
GERDES, Star #478, and ALBERT )
JACKSON, Star #426, in their individual)
capacitics as Kane County Sheriff Deputics, )
)

)

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff John Negron (“Negron”), a pretrial detaince at Kane County Adult Correctional
Facility (“Kane County Jail”) at the time of his complaint, has sued several Sheriff Deputies
employed at Kane County Jail — Neil Collins (“Collins”), M. Gerdes (“Gerdes”), and Albert Jackson
(“Jackson”) — based on Gerdes’s alleged beating of Negron during an August 7, 1999 confrontation
in Negron’s cell. Negron alleges that (1) Gerdes used unlawful force against Negron in violation of
42 U.S.C, §1983, and (2) Collins and Jackson are liable under Section 1983 for failing to intervene
in the altercation,’ Before the court is defendants’ motion for summary judgment. Defendants argue
that Negron’s complaint fails as a matter of law because the undisputed facts demonstrate that (a)
Gerdes used a permissible, minimum amount of force in response to a physical threat from Negron

and (b) Collins and Jackson did not have an opportunity to intervenc in the incident. For the reasons

1 Negron has withdrawn his separate state claim for assault and battery (Count [1 of Negron’s complaint).
Thus, the court dismisses Count II and addresses the parties’ summary judgment arguments with respect
to Count I only. Since Count I is the only count that states a claim against Sheriff Kenneth Ramsey,
Ramsey is hereby dismissed from this action.


below, defendants’ motion for summary judgment is granted in part and denied in part. The court
denies summary judgment as to defendants Gerdes and Jackson and grants summary judgment as
to defendant Collins,

BACKGROUND

On August 7, 1999, Negron was housed at Kane County Jail as a pretrial detainee. It is
undisputed that, at that time, Negron had a history of assaults on corrections officers. Negron was
housed in the risk unit and placed on suicide watch. Prisoners assigned to this area of the facility
were locked in their respective cells and were not free to wander about the unit.

At the time of the incident, defendants Collins, Gerdes, and Jackson were all Sheriff Deputies
serving as corrections officers at Kane County Jail.

Gerdes was the only officer on duty at the risk unit at the time covered by Negron’s
complaint, As part of his regular duties, Gerdes exchanged blankets and linens for each cell. On the
day of the alleged incident, Gerdes performed the exchange for the cells, including Negron’s. Gerdes
has testified that at approximately 9:45 a.m., he became aware that Negron was flooding his cell.
Gerdes does not explain how Negron flooded his cell. While Negron does not dispute that the cell
was flooding, he claims that the blanket given to him by Gerdes was wet and thus caused the
problem, At some point after becoming aware of the flooding, Gerdes radioed for assistance.”

To address the problem, Gerdes entered Negron’s cell and instructed Negron to turn around
so that he could be handcuffed. Negron complied and proceeded to sit down on his bed as instructed
by Gerdes, Gerdes tumed his back away from the bed in order to attend to the flooding in the cell.
Itis undisputed that, at this point, Negron slipped his hands, still handcuffed, undcr his feet, moving

his hands to the front of his body. Gerdes turned around, noticed that Negron’s hands were now in

? The fact that Gerdes radioed for assistance is not disputed. Plaintiff and individual defendants designate different
times as to the placement of Gerdes’s call.