Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.charles E. Ferguson, Plaintiff/appellant, v. Darrell Kolb, Wisconsin Health & Social Services, Timothycullen, Oestreich, Hearing Officer, Mary Joas Anddel Kraeger, Defendants/appellees, 983 F.2d 1072 (7th Cir. 1993)

ORDER

Ferguson, an inmate incarcerated at the Waupun (Wisconsin) Correctional Institution ("WCI"), filed a suit under 42 U.S.C. § 1983 against several employees of WCI and the Wisconsin Department of Health and Social Services. Among other claims not relevant to this appeal, Ferguson alleged that Lynn Oestreich, a captain at WCI, violated Ferguson's rights under the Eighth Amendment by ordering that Ferguson be beaten upon his forcible removal from a disciplinary hearing.¹  The district court granted summary judgment in favor of Oestreich. See Fed. R. Civ. P. 56(c). It then denied Ferguson's motion for reconsideration. Fed. R. Civ. P. 59(e). Ferguson appeals the district court's grant of summary judgment in favor of Oestreich. See Fed. R. App. P. 3(c).² 

Ferguson is an aspiring musician, as is Mary Joas, Ferguson's social studies instructor at WCI. Ferguson wrote a letter to Joas, asking her to go into the music business with him. Joas informed him that she was not interested. She forwarded the letter to the education director at WCI, who ordered Ferguson to cease all communications with Joas on any subject not directly related to the social studies program. But Ferguson persisted. Ultimately, Joas wrote an adult conduct report charging Ferguson with disobeying orders and soliciting staff.

The Adjustment Committee conducted a disciplinary hearing on the conduct report. Oestreich served as the disciplinary hearing officer. Joas testified, and Ferguson requested to personally ask questions of her. Oestreich denied this request, and instructed Ferguson to direct his questions to Joas through his assigned advocate. Ferguson nevertheless insisted on presenting questions himself. He became irate, and had to be restrained by hearing officers. Oestreich ordered that Ferguson be removed from the room. The Adjustment Committee subsequently found Ferguson guilty of soliciting staff and disobeying orders. Superintendent Kolb affirmed the findings. Ferguson filed a suit under 42 U.S.C. § 1983 claiming, among other things not relevant to this appeal, that Oestreich had ordered officers at WCI to beat him when he was removed from the hearing.³ 

The district court referred the case to a magistrate judge, who recommended that the district court deny Oestreich's motion for summary judgment on the claim brought under the Eighth Amendment because factual issues remained whether Ferguson was removed from the hearing without excessive force, whether Oestreich ordered Ferguson to be beaten, and whether Ferguson was, in fact, beaten. However, the district disagreed and granted summary judgment in favor of Oestreich. Ferguson filed a motion for reconsideration. The district court denied the motion, and this appeal followed.

We review the district court's grant of summary judgment de novo. Mason & Dixon Lines, Inc. v. Glover, No. 91-2338, slip op. at 7 (7th Cir. Sept. 22, 1992). To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that the moving party 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). Oestreich provided ample and persuasive evidentiary support for his motion for summary judgment. He filed his own affidavit in which he denied ordering that Ferguson be beaten and having personal knowledge that Ferguson had been beaten. Additionally, he filed the affidavit of Joas, in which she denied hearing Oestreich order that Ferguson be beaten, as well as the affidavit of Quentyn Andrews, Ferguson's advocate, in which he denied hearing Oestreich order that Ferguson be beaten. Andrews also stated in his affidavit that he did not witness any beating of Ferguson, nor did he believe that excessive force was used during Ferguson's removal from the hearing.

When the moving party successfully shows the absence of a genuine issue as to any material fact, the opposing party must set forth specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). This, Ferguson failed to do. Ferguson's opposition to Oestreich's motion consisted of the allegation in his unverified complaint that Oestreich ordered officers at the prison to beat him, and a statement found in his reply brief that the officers used excessive force in removing him from the hearing. These bald assertions were unsworn and wholly inadequate to survive a motion for summary judgment. Ferguson produced no affidavits or depositions in which either he or other witnesses swore under penalty of perjury that the factual allegations in Ferguson's complaint were true and correct.

We are mindful that Ferguson, who litigated this suit pro se, is not held to the strict standards of formally trained attorneys. Jamieson-Bey v. Thieret, 867 F.2d 1046, 1047 (7th Cir. 1989) citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, summary judgment in favor of Oestreich in this case is proper, for we need not scour the record to make the case of a party who does nothing to oppose a motion for summary judgment. Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989).

The district court properly granted summary judgment in favor of Oestreich. We therefore AFFIRM the district court's judgment.