00-2937 Peate v. McCann

Listen to this article

“McCann wants this court to accept his version of events-that Peate attacked McIntyre and that McCann attempted to stop the second fight with CNS spray. The district court did just that. It noted that ‘there is [ ] nothing in this record to indicate that Sgt. McCann did anything other than to try to break up the fight between these two inmates.’ But this account is disputed by competent evidence in the record. Several witnesses stated in their affidavits that McCann handed McIntyre the laundry bag of bricks after engaging in a discussion. ‘I saw the offender McIntyre reach for the net bag from the Sgt. McCann, who gave the bag back to this offender who again started trying to attack Mr. Peate’; ‘Sgt. McCann picked up the net bag/alleged weapon, then gave it back to the white offender who then attempted to strike offender Peate a few more times.’ All of these eyewitness statements and more were before the district court by affidavit. While a jury would of course not be required to credit the testimony from the bystander inmates, it was improper for the district court to disregard these statements at the summary judgment stage.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Wood, J.