Whitfield, Benyehlidah v. Walker, R , 438 F. App'x 501 ( 2011 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 7, 2011*
Decided August 18, 2011
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07-3519
BENYEHUDAH WHITFIELD, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 04-3136
ROGER E. WALKER, JR., et al., Harold A. Baker,
Defendants-Appellees. Judge.
ORDER
This suit has a tortuous history but at last may be brought to a relatively
straightforward close. BenYeHudah Whitfield, who until recently was an Illinois inmate,
claims that upward of 50 prison officials deprived him of rights secured by United States
Constitution. The district court sua sponte granted summary judgment to the defendants on
all but 2 of the 15 counts laid out in Whitfield’s complaint; later the court granted the
*
We initially dismissed this appeal on January 9, 2009. On April 7, 2011, we granted
the plaintiff-appellant’s motion to recall the mandate and reinstate the appeal. We conclude
that oral argument is unnecessary. See FED. R. APP. P. 34(a)(2)(C). Circuit Judge Evans died
on August 10, 2011, and did not participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
No. 07-3519 Page 2
remaining defendants’ motion for summary judgment on the final 2 counts because those
prison officials were not personally involved in the allegedly unconstitutional activity. We
initially dismissed Whitfield’s appeal because he did not pay the filing fee and, under our
caselaw at the time, was not eligible to proceed in forma pauperis. See 28 U.S.C. § 1915(g).
Since then, however, our understanding of the eligibility requirements has changed to
Whitfield’s benefit. See Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010). Accordingly, we
recalled the mandate and reinstated both the district court’s order permitting him to
proceed in forma pauperis and the underlying appeal. We now conclude that the district
court did not err in granting summary judgment to the defendants and, therefore, affirm the
judgment.
We begin with the procedural history. Whitfield filed a motion for summary
judgment, and the defendants asked for more time to respond. They asserted that Whitfield
had refused to answer their interrogatories and asked the court to compel his response. The
court agreed to the defendants’ request for more time and also granted their motion to
compel. Still, for the next six months the interrogatories went unanswered as the parties
traded barbs about the meaning of the court’s order.
In the end, however, the district court determined that there was no need to resolve
the parties’ quibbles over the interrogatories, or to hold out for the defendants to file a
response, because, in fact, the evidence that Whitfield had submitted along with his motion
for summary judgment would not permit a reasonable juror to find in his favor on 13 of his
15 claims. To the contrary, the court alerted Whitfield that it was considering granting
summary judgment in the defendants’ favor on these claims and, accordingly, permitted
him 30 days to respond with evidence that would create an issue of disputed fact. Notably,
the court’s order offered Whitfield a comprehensive explanation of the shortcomings he
faced on each count. Despite this roadmap, though, Whitfield did not produce any
additional evidence—even though the court repeatedly extended the deadline for his
response. Five months later, the court gave up waiting and granted summary judgment for
the defendants on these 13 claims.
All that remained of the suit at this point were two claims arising from a single
event: Whitfield alleged that a prison “tactical team” violently roused him from his cell and
then subjected him to a strip search in front of female prison officials. A few months after
the court granted summary judgment on all but these two claims, the remaining defendants
filed a motion for summary judgment. The problem, they pointed out, was that none of
them were members of the tactical team. Whitfield’s (largely undeveloped) theory is that the
five defendants he did name should have done something to “rectify” the situation. But
there is no evidence in the record that they were at the scene or that they even were aware
No. 07-3519 Page 3
of what was happening, much less that they participated in the tactical team’s operation or
had any opportunity to put a stop to it. Because these defendants were not personally
responsible for the alleged constitutional violations, the court concluded, they too were
entitled to summary judgment.
On appeal, Whitfield raises two issues with the way the district court handled his
motion for summary judgment. First, he contends that because the defendants never filed a
response discussing the first 13 of his claims, the court ought to have deemed his proposed
facts admitted and granted summary judgment in his favor. But the court granted the
defendants an extension of time to file their response while the parties wrangled over
Whitfield’s refusal to answer the defendants’ interrogatories. And then the district court
eventually cut short the defendants’ opportunity to respond to Whitfield’s motion after
concluding that the evidence Whitfield had submitted was not sufficient to permit a
reasonable juror to find in his favor on any of these 13 claims. For that reason, the court
warned Whitfield that it was considering instead sua sponte granting summary judgment in
the defendants’ favor and, accordingly, offered him what wound up being five months to
respond with new evidence to remedy his shortcomings. Thus, because the facts that
Whitfield proposed were legally insufficient to substantiate his claims, Whitfield could not
have benefitted even if the court had deemed them admitted.
This brings us to Whitfield’s second point on appeal: He contends that the district
court was wrong to grant summary judgment sua sponte to the defendants because, he
says, he was not afforded an adequate opportunity to respond to the court’s concerns.
(Significantly, however, he does not challenge whether the grant of summary judgment was
correct on the merits.) “A district court is permitted to enter summary judgment sua sponte
if the losing party has proper notice that the court is considering granting summary
judgment and the losing party has a fair opportunity to present evidence in opposition.”
Acequia, Inc. v. Prudential Ins. Co. of Am., 226 F.3d 798, 807 (7th Cir. 2000). See also FED. R. CIV.
P. 56(f)(3); Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Anderson v. Wachovia Mortg. Corp.,
621 F.3d 261, 280 (3d Cir. 2010); P.R. Electric Power Auth. v. Action Refund, 515 F.3d 57, 64-65
(1st Cir. 2008). Whitfield does not dispute that he received proper notice of the court’s
intentions; he merely urges that the five months the court allotted him to dig up better
evidence was not enough.
We disagree. A court contemplating a sua sponte entry of summary judgment need
give the adversely affected party only “a reasonable time to respond.” FED. R. CIV. P.
56(f)(3). The court initially gave Whitfield 30 days, 9 days more than he would have had to
respond to a motion for summary judgment filed by the defendants themselves. C.D. ILL.
LOCAL R. 7.1(D)(2). What’s more, in response to Whitfield’s multiple requests, the court
No. 07-3519 Page 4
indulged his need for additional time—almost half a year’s worth. Whitfield offers us no
valid reason why he could not have acquired in five months’ time the evidence he needed to
show that he had a triable issue of fact. See FED. R. CIV. P. 56(d) (requiring a showing of
“specified reasons” why nonmoving party needs more time to respond).
We turn next to the district court’s grant of summary judgment to the five
defendants who, Whitfield concedes, took no part in the tactical team’s violently rousing
him from his cell and then conducting a strip search in front of female prison officials. On
appeal, Whitfield continues to insist that these five defendants “had the power to prevent
the . . . violations from taking place but chose not to.” Only a defendant who is personally
responsible for depriving the plaintiff of a constitutional right may be held liable under
§ 1983. Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008); Trujillo v. Williams, 465 F.3d
1210, 1227 (10th Cir. 2006); Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). If someone else
has committed the act that resulted in the constitutional deprivation, then the defendant is
personally responsible, and thus liable under § 1983, only if he knows about the other
person’s act, has a realistic opportunity to prevent it, but deliberately or recklessly fails to
do so. Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009); Smith v. Mensinger, 293 F.3d 641,
650-51 (3d Cir. 2002); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
Whitfield’s argument founders because no evidence in the record permits us to
decide that these five defendants had any opportunity, much less a realistic one, to protect
him from the tactical team’s allegedly unconstitutional outburst. The record on which
Whitfield wants to proceed to trial tells us nothing about what these defendants knew,
where they were at the time, or what their job duties were; all we have is Whitfield’s
statement that they “had the power” to stop the team in its tracks. But a conclusory
assertion like that, lacking any details about the supposed “powers” or, indeed, any
explanation how Whitfield came by his purported knowledge, is not sufficient to stave off
summary judgment.
Whitfield also contends that the district court abused its discretion by denying three
of his motions to compel discovery. We see no error. All the evidence Whitfield was seeking
either is of unexplained relevance or, in fact, he wound up receiving.
AFFIRMED.