IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Tory McCray (M-10384), )

)

Plaintiff, )

) Case No. 20 C 2497

v. )

) Judge John Robert Blakey

T. Sage, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Tory McCray, a state prisoner in custody at Menard Correctional 

Center, sues Defendants Sage, Gallagher, Hernandez, Perez, and Ciukaj pro se 

pursuant to 42 U.S.C. § 1983, alleging that they subjected him to excessive force on 

February 2, 2020, while he was in custody at the Cook County Jail. Defendants move 

for summary judgment, arguing that the evidence in the record undermines 

Plaintiff’s excessive force claim and establishes that Defendant Ciukaj had no 

personal involvement in the use of force; Defendants also argue that they are entitled 

to qualified immunity. See [49]. For the reasons stated below, the Court grants in 

part, and denies in part, Defendants’ motion. 

I. Summary Judgement Standard

Summary judgment is appropriate under Federal Rule of Civil Procedure 56(a)

“if the movant shows that 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); Celotex Corp 

v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact is not 

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demonstrated by the mere existence of “some alleged factual dispute between the 

parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material 

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

Rather, a genuine issue of material facts exists when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Estate of Simpson 

v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248). A 

fact is material if it might affect the outcome of the suit. First Ind. Bank v. Baker, 

957 F.2d 506, 508 (7th Cir. 1992).

The moving party bears the initial burden of demonstrating the lack of any 

genuine issue of material fact. Celotex, 477 U.S. at 323. Once the party moving for 

summary judgment demonstrates the absence of a disputed issue of material fact, 

“the burden shifts to the non-moving party to provide evidence of specific facts 

creating a genuine dispute.” Carrol v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The 

non-movant must go beyond the pleadings and “set forth specific facts showing that 

there is a genuine issue for trial.” Hannemann v. Southern Door Cty Sch. Dist., 673 

F.3d 746, 751 (7th Cir. 2012). Thus, “‘summary judgment must be entered “against 

a party who fails to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the burden of proof 

at trial.”’ Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992) (quoting Celotex, 477 U.S.

at 322 (1986)); Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027, 1032 (7th Cir. 

2019).

When deciding a motion for summary judgment, the Court views the facts in 

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the light most favorable to, and draws all reasonable inferences in favor of, the 

nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th 

Cir. 2013) (citation omitted).

II. Local Rule 56.1

Local Rule 56.1 governs the procedures for filing and responding to motions for 

summary judgment in this district. The rule aids the district court, “which does not 

have the advantage of the parties’ familiarity with the record and often cannot afford 

to spend the time combing the record to locate the relevant information, in 

determining whether a trial is necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 

(7th Cir. 2011) (citation omitted.) The Rule requires the moving party to provide a 

statement of material facts and to support each asserted fact with specific evidentiary 

material by citation, including the specific page number. LR 56.1(a), (d). The court 

may disregard any asserted fact that is not supported with such a citation. LR

56.1(d)(2).

The opposing party must then respond to the movant’s proposed statements of 

fact. Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); LR

56.1(e). In the case of any disagreement, “a party must cite specific evidentiary 

material that controverts the fact and must concisely explain how the cited material 

controverts the asserted fact. Asserted facts may be deemed admitted if not 

controverted with specific citations to evidentiary material.” LR 56.1(e)(3). Mere 

disagreement remains “inadequate if made without reference to specific supporting 

material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). The party opposing 

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summary judgment may also submit “a statement of additional material facts that 

complies with LR 56.1(d).” LR 56.1(b)(3). A plaintiff’s pro se status does not excuse 

him from complying with Local Rule 56.1. See Cady v. Sheahan, 467 F.3d 1057, 1061 

(7th Cir. 2006).

Consistent with the local rules, Defendants filed a Rule 56.1 statement of 

material facts with their motion for summary judgment, [51], and they also provided 

Plaintiff with a Local Rule 56.2 Notice, which explains what Local Rule 56.1 requires 

of a litigant opposing summary judgment. [52].

In response, Plaintiff submitted a response to Defendants’ motion for summary 

judgment [60]. Despite being advised of the procedures, however, Plaintiff failed to 

respond to Defendants’ LR 56.1 Statement of Facts. Where the parties’ statements 

are properly supported by the cited materials and are not otherwise disputed by the 

evidence raised by the opposing party, the Court considers those statements as 

undisputed. See LR 56.1(e)(3). And because Plaintiff failed to submit a response to 

Defendants’ Statement of Facts, this Court deems them admitted. 

Mindful of these principles, this Court draws the facts below from the 

Defendants’ Local Rule 56.1 statements of material facts [50], Plaintiff’s response to 

the motion [60], and Defendants’ reply [65]. The Court has carefully examined each 

response submitted by the parties for relevancy, evidentiary support, and 

admissibility in construing the facts of this case and gives deference to Plaintiff’s 

version of the facts where properly presented and supported by admissible evidence. 

This Court will not consider purely legal arguments, responses lacking evidentiary 

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support, or responses that contradict sworn deposition testimony.

III. Facts

Plaintiff, Tory McCray (“Plaintiff”) is currently an inmate at Menard 

Correctional Center. [50] ¶ 1. On February 2, 2020, and at all relevant times herein, 

Defendant Correctional Officers Timothy Sage, James Ciukaj, Angel Perez, Patrick 

Gallagher, and Jose Hernandez were employed by the Sheriff of Cook County at the 

Cook County Department of Corrections (herein after referred to as “CCDOC”). Id. 

¶¶ 2–6. 

On February 2, 2020, CCDOC housed Plaintiff in Division 9, 1G, a segregation 

unit of Cook County Jail, because of previous incidents of fighting. Id. ¶ 10. When 

Defendants Perez and Sage brought Plaintiff out of his cell to eat dinner on February 

2, 2020, Plaintiff became angry, agitated, and upset because he was escorted in 

handcuffs. Id. ¶ 12. When Defendants opened Plaintiff’s cell door, Plaintiff became 

verbally abusive towards Defendants stating, “I’m gonna get wild on you, you think 

you playing with a kid, I’m going to show you.” Id. ¶ 13. Defendants asked Plaintiff 

why he was so irate and what the Defendants could do to assist Plaintiff; Plaintiff 

stated, “don’t worry about it, I’m gonna make you call the [Sergeant]. Just watch 

what the fuck I do.” Id. ¶ 14. When escorted to the dayroom table and given his food 

tray, Plaintiff knocked it to the floor and told Defendants to, “go clean that shit up, 

bitch.” Id. ¶ 15. Defendants Sage, Gallagher, Perez, and Hernandez escorted Plaintiff 

back to his cell. Id. ¶ 16. A portion of these events were recorded on video, Id. ¶ 11. 

See [55]. 

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At approximately 6:27 p.m., Defendants began removing Plaintiff’s handcuffs 

and ordered Plaintiff to place his hands back in his cell to resecure the food port as 

part of protocol. Id. ¶ 17. Officers commonly require inmates to put their hands 

through the food port to remove restraints. Id. ¶ 18. In fact, prior to February 2, 

2020, Plaintiff routinely put his hands through the food port so officers could remove 

restraints without incident. Id. ¶ 30. On this occasion, however, Plaintiff refused 

these orders and stated, “I know what time you motherfuckers get off work and when 

you get out I’m gonna have somebody waiting to kill you bitch.” Id. ¶ 19. At the same 

time, Plaintiff pushed his hands out through the food port and his fingers got caught 

in between the frame and the food port, causing him to cut his finger. Id. ¶ 20. 

Defendants ceased attempting to close the food port when they noticed that Plaintiff’s 

finger was bleeding. Id. ¶ 21.

None of the Defendants struck or hit Plaintiff during the incident on February 

2, 2020. Id. ¶ 22. None of the Defendants taunted or verbally abused Plaintiff during 

the incident on February 2, 2020. Id. ¶ 23. Prior to February 2, 2020, Plaintiff was 

present when his cellmate took the food port hostage, which resulted in officers 

having to intervene and restrain both Plaintiff and his cellmate. Id. ¶ 31. And 

Plaintiff admits that he believes Defendants thought he was trying to do the same 

thing on this occasion, taking the food port hostage to prevent officers from being able 

to close the door and secure Plaintiff. Id. ¶ 29. Prior to February 2, 2020, Plaintiff 

has had no disagreements with any of the Defendants. Id. ¶ 32. 

When Defendants saw that Plaintiff’s finger was bleeding, they sent for 

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Defendant Ciukaj, who arrived on the scene at 6:37 p.m. Id. ¶ 24. 

Plaintiff was immediately transported to Cermak for medical evaluation and 

treatment. Id. ¶ 25. On February 3, 2020, Cermak medical personnel evaluated 

Plaintiff and x-rayed his hand; they found no broken bones or fractures but did find 

some soft tissue swelling and summarized Plaintiff’s injury as “trauma to right index 

finger with superficial laceration.” Id. ¶ 26. Medical staff evaluated Plaintiff again 

on February 26, 2020, when he complained his right index finger was still causing 

him pain; they noted “no swelling or redness,” “full ROM,” and “no signs of infection,” 

and x-rays showed no fractures. Id. ¶ 27. 

IV. Analysis

Given these facts, Defendants move for summary judgment arguing that: (1) 

evidence in the record undermines Plaintiff’s claim of excessive force and any injury 

he may have suffered was de minimus; (2) Defendant Ciukaj was not personally 

involved in the use of force and thus cannot be liable under § 1983; and (3) Defendants 

are entitled to qualified immunity. 

A. Defendants’ Use of Force

The Court first addresses Defendants’ arguments that the record establishes 

no genuine issues of material fact relating to Plaintiff’s allegation of excessive force. 

Because Plaintiff was a pretrial detainee at the time of the incident, his excessive 

force claim arises under the Fourteenth Amendment’s Due Process clause. See 

Kingsley v. Hendrickson, 576 U.S. 389 (2015); Miranda v. County of Lake, 900 F.3d 

335, 350-51 (7th Cir. 2018). Under the Fourteenth Amendment, an officer’s use of 

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force is excessive where it “amounts to punishment,” is “not rationally related to a 

legitimate governmental purpose,” or “appears excessive in relation to that purpose” 

when viewed objectively. Id. (quoting Bell v. Wolfish, 441 U.S. 520 (1979)). 

To prevail on an excessive force claim, “a pretrial detainee must show only that 

the force purposely or knowingly used against him was objectively unreasonable.”

Kingsley, 576 U.S. at 396–97. Whether the force was objectively unreasonable “turns 

on the facts and circumstances of each particular case,” and depends upon factors 

such as “the relationship between the need for the use of force and the amount of force 

used; the extent of the plaintiff’s injury; and any effort made by the officer to temper 

or to limit the amount of force; the severity of the security problem at issue; the threat 

reasonably perceived by the officer; and whether the plaintiff was actively 

resisting.” Id. at 397 (quotation marks and citations omitted). The Court considers 

these factors from the perspective of what a reasonable officer on the scene would 

have understood, not through the lens of hindsight. Id.

Defendants have submitted as evidence the incident report, and two digital 

video exhibits seeking to support their argument that the force complained of was 

reasonable. But neither video captures Defendants’ use of force after Plaintiff took 

his chuckhole hostage. The first video shows 40 minutes of footage taken from a 

stationary camera covering the common area, where the inmates apparently eat. See

[55]. The video (which has no audio) shows the officers bringing Plaintiff down to the 

common area for lunch (and he appears to be shouting at them), shows Plaintiff 

deliberately throw his food container across the room, and shows the officers taking 

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Plaintiff back up the stairs, presumably to his cell, then shows them bringing him 

back down the stairs a few minutes later, and shows them walking him out of the 

common room, presumably heading to the medical unit. See [55]. But his cell door 

is not visible in the frame, and the actual use of force around the chuckhole thus is 

not captured. 

The second video, which does include some audio, shows events following the 

use of force when Plaintiff was escorted to the medical unit for treatment for his 

injuries. These videos do not necessarily undermine Plaintiff’s claim. Although the 

incident report describes Plaintiff’s aggressive and unreasonable behavior prior to 

the use of force (which is confirmed by the videos), the undisputed record shows that 

Defendants did use some force in attempting to secure Plaintiff’s hands in the 

chuckhole, and that force caused Plaintiff injury. Additionally, it is undisputed that, 

when the officers applied force, Plaintiff was already in his cell with his hands cuffed. 

The Seventh Circuit has held that force is reasonable “only when exercised in 

proportion to the threat posed, and as the threat changes, so too should the degree of 

force. . . . It’s the totality of the circumstances, not the first forcible act, that 

determines objective reasonableness.” Abbot v. Sangamon County, Ill., 705 F.3d 706, 

729 (7th Cir. 2013). Given the absence of video evidence depicting the actual use of

force in this case, a jury might credit the Plaintiff’s version of events, see [60][61], 

over that of the Defendants, and find that the officers’ use of force unreasonable under 

the circumstances.

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Defendants also argue that Plaintiff’s injury was de minimus precluding his 

excessive use of force claim. Even accepting Defendants’ characterization of 

Plaintiff’s injury, that fact may preclude him from obtaining any compensatory 

damages for mental or physical injury, but it would not preclude him from seeking 

“nominal and punitive damages.” Calhoun v. DeTella, 319 F.3d 936, 940-41 (7th Cir. 

2003); see also Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012); Washington v. 

Hively, 695 F.3d 641, 644 (7th Cir. 2012); Smith v. Peters, 631 F.3d 418, 421 (7th Cir. 

2011). 

Based upon the current record, this Court cannot enter summary judgment in 

favor of Defendants Sage, Gallagher, Hernandez, and Perez. 

B. Defendant Ciukaj

This Court finds that summary judgment is appropriate as to Defendant 

Ciukaj, however. Liability under the Civil Rights Act requires a defendant’s personal 

involvement in the alleged constitutional violation. See Palmer v. Marion County, 

327 F.3d 588, 594 (7th Cir. 2003). A supervisory official cannot be held liable for the 

conduct of his subordinates based upon a theory of respondeat superior, and a 

complaint’s allegations must indicate that the supervisory official was somehow 

personally involved in the constitutional deprivation. See Perkins v. Lawson, 312 

F.3d 872, 875 (7th Cir. 2002).

Here, the record establishes that the other Defendants sent for Defendant 

Ciukaj at 6:37 p.m., after the use of force, which occurred at 6:27 p.m. Because the 

undisputed portions of the record (including the video exhibits) confirm that 

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Defendant Ciukaj was not present when Defendants Sage, Gallagher, Hernandez, 

and Perez used the alleged excessive force underlying Plaintiff’s claim, he was not 

personally involved in the use of force, and he may not be held liable for it. 

C. Qualified Immunity

Qualified immunity shields government officials from “civil damages liability 

unless the official violated a statutory or constitutional right that was clearly 

established at the time of the challenged conduct.” Taylor v. Barkes, 575 U.S. 822, 

825 (2015) (internal quotation marks omitted). When evaluating whether qualified 

immunity applies, the court must ask “two questions: (1) whether the facts, taken in 

the light most favorable to the plaintiff, make out a violation of a constitutional right, 

and (2) whether that constitutional right was clearly established at the time of the 

alleged violation.” Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001); see also 

Lane v. Franks, 573 U.S. 228, 243 (2014). For the law to be clearly established, the 

“existing precedent must have placed the statutory or constitutional question beyond 

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

As explained above, the record contains genuine issues of material fact as to 

the alleged violation of Plaintiff’s constitutional rights. In addition, it is well 

established that it is objectively unreasonable for an officer to use significant force on 

an unresisting or passively resisting subject. See Abbott, 705 F.3d 706 at 732 (“it was 

well-established in this circuit that police officers could not use significant force on 

non-resisting or passively resisting suspects”); Clash v. Beatty, 77 F.3d 1045, 1048 

(7th Cir.1996) (dismissing appeal of denial of qualified immunity in excessive force 

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case; issue of fact existed as to whether officers applied “wholly gratuitous” force 

against subdued suspect not resisting arrest). This prohibition applies even though 

the detainee may previously have refused to comply with officers’ orders or even posed 

a threat to officer safety. Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014). Here, 

although Plaintiff was behaving belligerently in the common room, when the officers 

applied force to get him to release his hold on the chuckhole he was retrained and 

locked in his cell. Because the video recordings do not allow the Court to assess the 

actual use of force at issue here, and the parties dispute the incident itself, summary 

judgment on qualified immunity grounds remains inappropriate. 

V. Conclusion

For the reasons stated above, the Court grants in part, and denies in part,

Defendants’ motion for summary judgment [49]. Because the record establishes that 

Defendant Ciukaj played no part in the alleged use of force, he may not be liable 

under § 1983, and the Court dismisses him from the case. The Court denies the 

motion in all other respects; Plaintiff may proceed on his claim against Defendants 

Sage, Gallagher, Hernandez, and Perez. 

Dated: September 26, 2022 Entered:

____________________________

John Robert Blakey

United States District Judge

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