Gallo, Jr v. Pitcher-Stokes et al
Filing
37
ORDER and OPINION entered by Judge Joe Billy McDade on 3/7/16. Defendant Lorna Pitch-Stokes' Motion for Summary Judgment 28 is GRANTED IN PART and DENIED IN PART. The motion is granted with respect to Plaintiff's claim relating to the di sciplinary report issued in November 2011, but denied with respect to Plaintiff's claim related to the disciplinary report issued in December 2011. Plaintiff Carl Gallo, Jr.'s Motion to Strike 33 is DENIED. This matter is set for a telephonic status conference on March 23, 2016 at 1:30 p.m. The Clerk is directed to issue a telephone writ for Plaintiff's appearance by phone.SEE FULL WRITTEN ORDER. (FDT, ilcd)
E-FILED
Monday, 07 March, 2016 01:27:35 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CARL GALLO, JR.,
Plaintiff,
v.
LORNA PITCH-STOKES,
Defendant.
)
)
)
)
)
)
)
)
)
Case No. 13-cv-1476
O R D E R & OPINION
This matter is before the Court on Defendant’s Motion for Summary
Judgment (Doc. 28) and Plaintiff’s Motion to Strike Defendant’s Reply Brief in
Support her Motion for Summary Judgment. (Doc. 33). For the reasons discussed
below, Defendant’s Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART. Plaintiff’s Motion to Strike is DENIED.
PROCEDURAL BACKGROUND
Plaintiff Carl Gallo, Jr. (“Plaintiff”) filed his complaint on October 8, 2013
(Doc. 1), in which he sued ten defendants at the Henry Hill Correctional Center
(“Hill”) for violating his constitutional rights based on disciplinary tickets written
against him on November 9, 2011 and December 16, 2011. In a Merit Review
Opinion dated July 9, 2014, the Court dismissed all Defendants except for
Defendant Lorna Pitch-Stokes (“Defendant”) and dismissed all claims except for the
claim that Defendant retaliated against him for filing grievances by writing false
disciplinary tickets on November 9, 2011 and December 1, 2011. (Doc. 7). The Court
denied Plaintiff’s Motion for Reconsideration of its Merit Review Order, and the
case proceeded through discovery. Defendant now moves for summary judgment on
Plaintiff’s retaliation claim.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted where “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). In ruling on a motion for summary
judgment, the Court must view the evidence in the light most favorable to the nonmoving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365,
368 (7th Cir. 2009). All inferences drawn from the facts must be construed in favor
of the non-movant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
To survive summary judgment, the “nonmovant must show through specific
evidence that a triable issue of fact remains on issues on which he bears the burden
of proof at trial.” Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir.
2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on
record could not lead a reasonable jury to find for the non-movant, then no genuine
issue of material fact exists and the movant is entitled to judgment as a matter of
law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the
summary judgment stage, the court may not resolve issues of fact; disputed
material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986).
2
FACTUAL BACKGROUND1
Plaintiff is an inmate who is currently incarcerated with the Illinois
Department of Corrections (“IDOC”) at Hill. He has a history of various health
ailments for which he says he has had difficulty receiving medical treatment. When
Plaintiff believes he has not received the health care that he requires, he has filed
grievances against prison healthcare staff.
In November and December of 2011, Plaintiff filed grievances against
Defendant. She is a licensed practical nurse who is registered to practice in the
State of Illinois, and has been employed at Hill since 2006. At Hill, she performs
nursing care duties under the supervision of the Medical Director and Director of
Nursing. Defendant filed disciplinary reports against Plaintiff in the days after he
filed each grievance. In this lawsuit, Plaintiff claims that Defendant filed the
disciplinary reports in retaliation for his grievances.
I.
Plaintiff’s First Grievance & Subsequent Disciplinary Ticket
Plaintiff filed his November 2011 grievance following an October 27, 2011
nursing sick call in which he received treatment from Defendant. Plaintiff suffers
from ulcerative colitis, and he uses Metamucil to help treat it. At the sick call,
Plaintiff informed Defendant that he believed his Metamucil prescription had been
improperly written. During their discussion, he told her, “you’re not a doctor.”2
Unless otherwise indicated, these background facts reflect the Court’s
determination of the undisputed facts, and are drawn from the parties’ statements
of facts and responses thereto. (Docs. 28, 31).
2
Plaintiff has objected to a number of Defendant’s undisputed material facts
as not supported by the record evidence to which Defendant cites, including this
one. These improperly cited facts include Plaintiff’s proposed undisputed material
facts 7, 9, 30, 34, and 36. (See Doc. 31 at 3-8). In making these objections, Plaintiff
1
3
Although Plaintiff insists that he behaved politely toward Defendant throughout
the sick call and left without incident, Defendant claims that he was insolent during
has highlighted Defendant’s inattention to record citations. In many of the proposed
undisputed material facts identified above, Defendant has cited to portions of
Plaintiff’s deposition transcript, but the cited portions of the deposition have
nothing to do with the proposition for which Defendant has cited it. This is one such
example. Defendant cites to Plaintiff’s deposition testimony, but the cited testimony
does not support the fact that Plaintiff told Defendant, “you’re not a doctor.” (Doc.
28 at 3). Yet, in his declaration filed with his response to Defendant’s motion,
Plaintiff himself admits that he made the statement. (Pl.’s Decl. 1 (Doc. 31 at 26)).
Here’s an additional example that is relevant to facts discussed later in this opinion.
Defendant cites page 40 of Plaintiff’s deposition to support the proposition that the
Adjustment Committee disciplined Plaintiff with a verbal reprimand after finding
him guilty of insolence in November of 2011. (Doc. 28 at 6). Yet, the cited portion of
the transcript says nothing about Plaintiff’s punishment for the insolence. Instead,
it relates to Plaintiff’s daily schedule at Hill. (See Pl.’s Dep. 40-41 (Doc. 28-1 at 1011)).
Defendant’s failures are frustrating, but Plaintiff’s objections are overruled.
Parties have an obligation to support their assertions of fact with properly-cited
evidence. See Fed. R. Civ. P. 56(c)(1)(A). Plaintiff’s objections are made pursuant to
Federal Rule of Civil Procedure 56(c)(2), which provides that, “A party may object
that the material cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” But, pursuant to Rule 56, the Court “may
consider other materials in the record” beyond those that are cited. Fed. R. Civ. P.
56(c)(3).
Although a number of Defendant’s record citations are either imprecise or
incorrect, the record contains evidence that supports many of the facts to which
Plaintiff objects. To continue with the second example from above, even though
Plaintiff did not testify during his deposition about the verbal warning he received,
a quick review of the record demonstrates that Defendant has submitted evidence of
this fact that could be presented in a form that would be admissible in evidence at
trial. The Adjustment Committee Final Summary Report lists Plaintiff’s final
punishment related to this disciplinary report as a verbal reprimand. (Pl.’s Dep. Ex.
2 (Doc. 28-2 at 13)). Plaintiff does not dispute the authenticity or admissibility of
this document; indeed he relies upon it to support certain of his own facts. (See, e.g.,
Pl.’s Disputed Material Fact 58, Doc. 31 at 13). Moreover, he does not actually
dispute that he received this punishment or provide evidence that he received some
other punishment. Instead, he argues that he was harmed by the risk of significant
sanctions rather than by the actual sanction he received. (Doc. 31 at 20-21).
The Court has carefully reviewed each of the objections that Plaintiff has made
pursuant to Rule 56(c)(2). To the extent that Defendant’s facts are both undisputed
and supported by the record, the Court will overrule Plaintiff’s objections and
consider the evidence despite Defendant’s citation problems. Defendant should be
more careful in the future.
4
it. Defendant purportedly told Plaintiff during the sick call that she would write
him a disciplinary report next time he wrote a grievance about her.
Plaintiff wrote a grievance on November 2, 2011, and detailed Defendant’s
threat to write a disciplinary ticket if he filed a grievance. He marked this grievance
as an emergency grievance, and submitted it to the Hill’s warden on November 5,
2011. Emergency grievances are sent directly to the warden’s office, and the
warden’s office determines whether an emergency exists. The warden’s office does
not investigate the allegations of the grievance during this review.3
On November 7, 2011, the warden determined that Plaintiff’s grievance did
not constitute an emergency and returned the grievance to Petitioner. Plaintiff then
submitted his grievance to his counselor, who received it on November 14, 2011 and
forwarded it to the healthcare unit (where Defendant is employed) for a response.
Plaintiff’s counselor responded to the grievance on November 16, 2011, and wrote,
“HCU Administrator states that the nurse was following policies and procedures.
Your continued harassment – your continued false grievances are inappropriate.”
(Beams Aff. Ex. 1 (Doc. 28-6 at 4)).
While the warden’s office was determining if the grievance was an
emergency, Plaintiff submitted a new sick call request slip to the Health Care
Plaintiff objects to this fact on the ground that Gary Beams, a Counselor at
Hill who provided an affidavit, lacks personal knowledge of what the warden’s office
does with emergency grievances because he is not employed by the warden’s office.
However, Plaintiff has not presented any evidence that would call this fact into
dispute. Beams’s affidavit states that his experience as a correctional counselor at
Hill has left him “familiar with the processing and investigating of grievances, both
regular and emergency.” (Beams Aff. 1 (Doc. 28-6 at 1)). This provides the necessary
foundation to establish his personal knowledge as to how the grievance process at
Hill works. See Fed. R. Evid. 602. Therefore, the Court overrules Plaintiff’s
objection.
3
5
Administrator. The request was dated November 8, 2011. On it, Plaintiff
complained of chest and kidney pain, stated that he needed to see the doctor, and
further stated that he had been putting in requests for a doctor since November 4.
It turns out that Plaintiff actually saw a doctor on November 7, although Plaintiff
argues that he saw the doctor exclusively for reasons that are unrelated to his sick
call requests. Additionally, Plaintiff states that he submitted his sick call request on
November 8, 2011 because the doctor was “of no help to [him]” at the November 7,
2011 visit. (Pl.’s Decl. 3 (Doc. 31 at 28)).
Defendant received and reviewed Plaintiff’s sick call request on November 9,
2011. In response, she spoke with a doctor and obtained approval to renew two
prescriptions for Plaintiff. She also wrote Plaintiff a disciplinary ticket on
November 9. The disciplinary ticket charged Plaintiff with giving false information
to an employee, insolence, and disobeying a direct order. Defendant wrote, among
other things, that Plaintiff had provided false information when he submitted the
November 8 sick call request claiming he had needed to see a doctor since
November 4 because he had seen a doctor on November 7. Defendant also wrote
that Plaintiff had behaved in an insolent manner on October 27 when he told her
that she was not a doctor.
An adjustment committee at Hill had a hearing regarding the disciplinary
ticket, and found Plaintiff guilty of insolence based upon his behavior on October 27,
6
2011.4 During the hearing, Plaintiff admitted that he had told Defendant that she
was not a doctor. As a punishment, he received a verbal reprimand.
II.
Plaintiff’s Second Grievance & Subsequent Disciplinary Ticket
Plaintiff submitted a second grievance against Defendant on December 12,
2011, in which he complained that she was not addressing his medical problems.
Plaintiff’s counselor received the grievance on December 15, 2011, and investigated
it by contacting the healthcare unit.
Plaintiff also submitted a sick call request on December 16, 2011. In this sick
call request, he complained that he had not received necessary medication or
medical treatment. Prison security staff conducted a shakedown of Plaintiff’s cell
on December 16, 2011. During the shakedown, the staff located a number of
medications, many of which were expired. Although Defendant did not have any
involvement in ordering the shakedown of Plaintiff’s cell and was not present
during the search, she received the confiscated medications that were located
during the search.
Upon receipt of the confiscated medications, Defendant wrote Plaintiff a
disciplinary ticket on December 16 charging Plaintiff with violation of three prison
rules: (1) he was in possession of drugs or drug paraphernalia because he had
expired medications;5 (2) he provided false information to an employee by claiming
that he had not received medication; and (3) he was insolent, as he acted with
A prisoner violates the IDOC Offense 304, for insolence, by “[t]alking, touching,
gesturing, or other behavior that harasses, annoys, or shows disrespect.” Ill. Admin.
Code tit. 20, § 504 App. A.
5 A prisoner violates the IDOC Offense 203 when he “possess[es] . . . .
unauthorized amounts of prescribed medication.” Ill. Admin. Code tit. 20, § 504,
App. A.
4
7
hostility and disrespect toward Defendant. In describing the behavior that she
believed was insolent, Defendant referenced Plaintiff’s behavior on October 27, 2011
(for which she had written a previous disciplinary report) and also noted that
Plaintiff had “yelled at [her] in passing, despite being told to stop by both [her]self
and correctional staff.” (Stokes Decl. 3 (Doc. 28-5 at 3)).
The adjustment committee conducted a hearing on the charges, and found
Plaintiff guilty of the drug and insolence charges.
The committee found that
Plaintiff had admitted to having medicine in his cell that was expired. It also found
that he was insolent during the October 27, 2011 sick call, during which he refused
to leave the exam room and “leaned forward in his chair with his arms on top of his
thighs and stared at [Defendant].” (Pl.’s Dep. Ex. 4 (Doc. 28-4 at 2)). Based on its
finding that Plaintiff possessed expired medication, the Adjustment Committee
disciplined Plaintiff with a six-month contact visit restriction and one-month of Cgrade status.
Plaintiff challenges Defendant’s motivation for writing the disciplinary
report. He argues that most (but not all) of the expired medication that was found
in his cell, including the hydrocortisone cream, eye drops, Tylenol, and Advil, are
not prescription drugs and are in fact sold in the Inmate Commissary. And in his
declaration, he states that on later occasions Defendant told him he did not need to
worry about possessing expired medication and could use expired medication rather
than refilling his prescriptions. (Pl.’s Decl. 7 (Doc. 31 at 32)).
8
DISCUSSION
Plaintiff claims that Defendant retaliated against him for engaging in speech
protected under the First Amendment in violation of 42 U.S.C. § 1983 by filing
disciplinary reports against him after he filed grievances against her. To make a
prima facie First Amendment Retaliation claim, a plaintiff must show that (1) he
engaged in activity protected by the First Amendment; (2) he suffered a deprivation
that would likely deter First Amendment activity in the future; and (3) his speech
was at least a motivating factor in the defendant’s actions. Kidwell v. Eisenhauer,
679 F.3d 957, 964 (7th Cir. 2012). To ultimately prevail, however, a plaintiff must
demonstrate that “but for his protected speech, [the defendant] would not have
taken the adverse action.” Id. at 965. At summary judgment, the Seventh Circuit
has split the burden of proof on causation between the parties. The defendant can
rebut the plaintiff’s prima facie case of causation by providing evidence that the
challenged adverse action would have occurred regardless of the plaintiff’s protected
speech. Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011). If the defendant
produces this evidence, the plaintiff must “show that those reasons were
pretextual.” Swearnigen-El v. Cook Cty. Sheriff’s Dep’t, 602 F.3d 852, 861 (7th Cir.
2010).
In this motion, Defendant does not challenge the first prong of the prima
facie case. Instead, she argues that Plaintiff’s retaliation claim regarding the
November 2011 disciplinary ticket must fail because he did not suffer an adverse
action and he cannot prove causation. She argues that Plaintiff’s retaliation claim
regarding the December 2011 disciplinary ticket must fail because he cannot prove
9
causation. Finally, she argues that she is entitled to qualified immunity. The Court
concludes that Defendant is entitled to judgment on Plaintiff’s retaliation claim
based on the November 2011 disciplinary ticket, but is not entitled to judgment on
Plaintiff’s retaliation claim based on the December 2011 disciplinary ticket.
I.
November 2011 Disciplinary Ticket
With respect to the November 2011 disciplinary ticket, Defendant argues
that Plaintiff has not presented evidence that satisfies the prima facie case for First
Amendment retaliation. First, she argues that Plaintiff cannot present evidence
that she knew about his filed grievance when she wrote him the disciplinary ticket.
Second, she argues that Plaintiff cannot prove that he suffered an adverse action, as
the adjustment committee disciplined him with only a verbal warning. Although
Plaintiff has presented evidence from which a reasonable factfinder could infer that
Defendant had knowledge of the grievance when she wrote the disciplinary ticket,
the punishment the disciplinary committee gave Plaintiff was not sufficiently
adverse.
A. Causation
Defendant argues that Plaintiff has no evidence that she became aware of the
grievance before November 16, 2011, when Plaintiff’s counselor forwarded the
grievance to the health care unit. To survive summary judgment, Plaintiff must
present evidence that she knew of the grievance before she wrote the complained-of
disciplinary ticket on November 9, 2011.
A plaintiff can show that an adverse action was motivated by protected
speech when the adverse action follows “closely on the heels” of the protected
10
activity. Kidwell, 679 F.3d at 971. But, “[a]dverse actions that follow ‘close on the
heels’ of protected speech can give rise to an inference of retaliation . . . only if the
person taking the adverse action knew of the protected conduct.” Diadenko v.
Folino, 741 F.3d 751, 756 (7th Cir. 2013); see also Morfin v. City of E. Chi., 349 F.3d
989, 1005 (7th Cir. 2003) (“The protected conduct cannot be proven to motivate
retaliation if there is no evidence that the defendants knew of the protected
activity.”) (internal quotation marks and brackets omitted).
In this case, there is close temporal proximity between the protected activity
and alleged adverse action. Plaintiff filed a grievance on November 5, 2011 which
was evaluated by the warden’s office on November 7, 2011, and Defendant issued
the disciplinary ticket two days later, on November 9, 2011. See Kidwell, 679 F.3d
at 966-67 (explaining that a Plaintiff can show causal connection through temporal
proximity when “no more than a few days” have elapsed “between the protected
activity and the adverse action.”).
However, Plaintiff does not have any direct evidence that Defendant was
aware of his grievance at the time that she filed the disciplinary report. In fact, he
attempts to dispute Defendant’s claim that she lacked knowledge through rank
speculation, writing “somebody screened the grievance to see if it qualifies as an
emergency . . . [and] this person could [have] contacted the defendant or even
informed one of her co-workers.” (Doc. 31 at 11). This speculation, on its own, is not
sufficient to survive summary judgment. See Harris v. Illinois, No. 09 C 3071, 2014
WL 2766737, at *13 (N.D. Ill. June 18, 2004); West v. Kingsland, No. 14-CV-1146JPS, 2015 WL 7283131, at *8 (E.D. Wis. Nov. 17, 2015).
11
Despite Plaintiff’s explicit turn to speculation in an attempt to meet his
burden, the record does contain circumstantial evidence from which a factfinder
could reasonably infer that Defendant knew about the grievance. See Santiago v.
Anderson, No. 05-512-CV-MJR-CJP, 2010 WL 4457334, at *4 (S.D. Ill. Nov. 1, 2010)
(“A jury must weigh Defendants’ assertions of a lack of knowledge against
Santiago’s assertions and circumstantial evidence”); Chavez-Rodrigeuz v. City of
Santa Fe, 616 F. Supp. 2d 1145, 1152 (D.N.M. 2009), rev’d on other grounds, 596
F.3d 708 (10th Cir. 2010) (providing that circumstantial evidence such as temporal
proximity, animus, and other potential facts, can provide evidence of knowledge in a
First Amendment retaliation case); cf. Ridings v. Riverside Med. Ctr., 537 F.3d 755,
774 (7th Cir. 2008) (explaining, in an FMLA retaliation case, that plaintiffs need
only provide circumstantial evidence from which a person could conclude that
defendants had knowledge of protected activity).
There is evidence that Defendant was hostile toward Plaintiff’s filing of
grievances, as she expressly threatened to retaliate against him if he filed one. See
Chavez-Rodriguez, 616 F. Supp. 2d at 1145. When coupled with the fact that
Defendant wrote a disciplinary ticket just days after Plaintiff filed one, this
evidence could allow a fact finder to conclude that Defendant knew about Plaintiff’s
grievance and was making good on her threat. See Ridings, 537 F.3d at 774
(explaining that an adverse employment action on the heels of protected activity
provides circumstantial evidence of knowledge); Williams v. Pepsi-Cola Gen.
Bottlers, Inc., No. 06 C 6392, 2009 WL 1974316, at *8 (N.D. Ill. July 6, 2009)
(explaining, in the context of a Title VII case, that evidence of escalation by a
12
defendant following a protected action “can suffice to show the decision-maker knew
of the complaint and retaliated.”); A. Kelley’s Garage, Inc. v. Vill. of Stone Park, No.
03 C 2758, 2005 WL 991768, at *3 (N.D. Ill. Apr. 19, 2005) (explaining that a
plaintiff can prove causal connection by presenting evidence of a threat of
retaliation followed by actual retaliation).
Plaintiff has also presented evidence that Defendant failed to follow IDOC
policy in writing Plaintiff a disciplinary ticket. See Hannon v. Beard, 645 F.3d 45,
49 (1st Cir. 2011) (explaining that “deviation from standard operating procedures”
can provide evidence of causal connection). IDOC has issued regulations regarding
the preparation of disciplinary reports by staff, see Ill. Admin. Code tit. 20, § 504.30,
which it is bound to follow. See People ex rel. Yoder v. Hardy, 451 N.E.2d 965, 969
(Ill. App. Ct. 1983). These regulations provide that disciplinary reports must be
served upon adult offenders within eight days after the commission of the offense or
discovery of the commission, “unless the offender is unavailable or unable to
participate in the proceeding.” Ill. Admin. Code tit. 20, § 504.30(f). Here, the
disciplinary report that Defendant wrote on November 9, 2011 involved behavior
that occurred on October 27, 2011. In order to comply with IDOC’s regulations,
Defendant needed to write and serve the disciplinary report by November 4, 2011,
which was one day before Plaintiff filed his grievance. See id. Instead, she wrote the
disciplinary report on November 9, 2011: thirteen days after the occurrence of the
incident, but just after Plaintiff filed his grievance. A factfinder could reasonably
infer that Defendant had knowledge of Plaintiff’s grievance based upon the fact that
13
her untimely disciplinary report was not filed until after Plaintiff filed his
grievance.
Considering these pieces of circumstantial evidence together (Defendant’s
pre-grievance threat, the close temporal proximity between the grievance and the
disciplinary report, and the untimely nature of the disciplinary report), the Court
concludes that Plaintiff has presented sufficient evidence of knowledge and
causation to survive summary judgment on that element.
B. Adverse Action
Defendant also argues that Plaintiff did not suffer an adverse action. To
successfully make a prima facie case, Plaintiff must present evidence that he
suffered a deprivation. Kidwell, 679 F.3d at 964. These deprivations include “both
threats designed to deter future speech and penalties for past speech.” Fairley v.
Andrews, 578 F.3d 518, 525 (7th Cir. 2009). In order to be actionable, “the alleged
conduct by the defendants” must “likely deter a person of ordinary firmness from
continuing to engage in protected activity.” Surita v. Hyde, 665 F.3d 860, 878 (7th
Cir. 2011).
Plaintiff’s claim focuses on the disciplinary report that Defendant actually
filed against Plaintiff, rather than on Defendant’s earlier threat to file a disciplinary
report if Plaintiff filed a grievance. Defendant argues that the disciplinary report
could not have deterred Plaintiff from filing grievances because he only received a
verbal reprimand and did not lose any privileges. (Doc. 28 at 15). Plaintiff counters
by arguing that the filed disciplinary report was “sufficiently adverse” because the
charges contained within it subjected him to significant potential sanctions. (Doc. 31
14
at 19-20). For example, the maximum penalties for insolence, with which Plaintiff
was charged, include three months of loss or restriction of privileges; three months
of B or C grade status; one month of good time revocation; and one month of
segregation. Ill. Admin. Code tit. 20, § 504 Tbl. A.
For support of his position, Plaintiff cites to a case from the Sixth Circuit,
Brown v. Crowley, 312 F.3d 782 (6th Cir. 2002). In Brown, prison staff filed a major
misconduct report against a prisoner for which he was subjected to the risk of
sanctions including punitive segregation. Id. at 789. Ultimately, he was found not
guilty of the charge, but the court held that “[a] reasonable jury could conclude that
being subjected to the risk of such severe sanctions for raising a legitimate
complaint would deter a person of ordinary firmness from continuing to engage in
that protected conduct.” Id. (internal quotation marks and brackets omitted).
Brown, however, is inconsistent with Bridges v. Gilbert, 557 F.3d 541 (7th
Cir. 2009). In Bridges, a prisoner alleged that a number of officials and guards in a
Wisconsin prison harassed him over a period of time because he served as a witness
in a wrongful death lawsuit brought against the prison. Id. at 544. One of the
prisoner’s ancillary claims was that a defendant retaliated by filing “an unjustified
disciplinary charge” when he complained about the harassment. Id. at 555. The
disciplinary charge was subsequently dismissed. Id. The Seventh Circuit upheld the
district court’s dismissal of that ancillary claim, concluding “[a] single retaliatory
disciplinary charge that is later dismissed is insufficient to serve as the basis of a §
1983 action” because it would not “deter a person of ordinary firmness from
exercising First Amendment activity in the future.” Id.; see also Starr v. Dube, 334
15
F. App’x 341, 343 (1st Cir. 2009) (holding that the simple filing of a disciplinary
charge would not deter an inmate of ordinary firmness from engaging in protected
speech where it is possible for the inmate to defend himself in front of a neutral
tribunal.).
Bridges implies that courts should look to the actual consequences of a
disciplinary proceeding rather than the potential consequences of a disciplinary
proceeding in determining whether a prisoner would be deterred from exercising his
rights under the First Amendment. See Bridges, 557 F.3d at 555; Clark v. Dewitt,
No. 13-CV-3012, 2015 WL 9217141, at *2 (C.D. Ill. Dec. 17, 2015) (explaining that
the statement in Bridges is “premised upon the fact that no actionable injury was
inflicted as a result of the disciplinary charge alone.”). In this case, unlike Bridges,
Plaintiff was actually found guilty by the adjustment committee and punished with
a verbal reprimand. See 557 F.3d at 355. However, verbal reprimands, which carry
no disciplinary consequences, are not sufficiently adverse to deter speech. See
Pegues v. Orrill, No. 13-cv-3200, 2015 WL 1058806, at *3 (C.D. Ill. Mar. 5, 2015)
(holding that a verbal reprimand given in punishment after a disciplinary report
“is not adverse enough to support a retaliation claim.”); Podkulski v. Doe, No. 11CV-102-JL, 2012 WL 2061696, at *5 (D.N.H. May 3, 2012), report and
recommendation adopted, No. 11-cv-102-JL, 2012 WL 2061571 (D.N.H. June 5,
2012); Irby v. Cain, No. CIV.A. 13-327-SDD, 2014 WL 1028675, at *6 (M.D. La. Mar.
17, 2014); Savage v. Brown, No. 6:10CV483, 2011 WL 294047, at *6 (E.D. Tex. Jan.
27, 2011).
16
This same logic also applies to Defendant’s earlier threat to file a disciplinary
report if Plaintiff filed a grievance. See Surita, 665 F.3d at 878 (applying the
“person of ordinary firmness” test to prior restraints on speech). If the actual filing
of a disciplinary report, on its own, is insufficient to chill First Amendment activity,
see Bridges, 557 F.3d at 555, Defendant’s bare threat to file a disciplinary report,
without reference to other consequences, is also insufficient. See Pittman v. Tucker,
213 F. App’x 867, 871-72 (11th Cir. 2007); Vega v. Rell, No. 3:09-CV-737 VLB, 2011
WL 2471295, at *19 (D. Conn. June 21, 2011); see also Hill v. Laird, No. 06-CV-0126
JS ARL, 2014 WL 1315226, at * (E.D.N.Y. Mar. 31, 2014) (holding that a “threat to
file false disciplinary reports to keep [a prisoner] in the SHU” was sufficiently
adverse) (emphasis added).
As Plaintiff has not presented sufficient evidence that the allegedly
retaliatory disciplinary report would deter an ordinary person from exercising his
First Amendment rights, summary judgment is granted to Defendant with respect
to the retaliation claim based on that disciplinary report.
II.
December 2011 Disciplinary Ticket
Defendant argues that Plaintiff is unable to prove causation with respect to
the claim based on the December 16, 2011 disciplinary ticket. First, she argues that
Plaintiff cannot present sufficient evidence to satisfy his prima facie case. Next, she
argues that she can rebut Plaintiff’s prima facie case because she wrote the ticket
for a legitimate, non-retaliatory reason. Finally, she argues that she is entitled to
qualified immunity. Summary judgment is inappropriate here, as Plaintiff has
17
presented sufficient evidence of causation and has also presented evidence that
Defendant’s non-retaliatory reasons are pretext for retaliation.
A. Prima facie Case of Causation
As discussed above, Plaintiff has the burden of providing evidence that his
protected conduct was a motivating factor in Defendant’s adverse action. Here,
Defendant admits that there is evidence that she was aware of Plaintiff’s December
12, 2011 grievance by December 15, 2011, (Doc. 28 at 13), and she did not write the
ticket until the next day, when she received the medications confiscated from his
cell. But she argues that Plaintiff is relying upon the “false logic of post hoc ergo
propter hoc.” (Id.). In other words, she suggests that the only evidence Plaintiff has
that she was motivated by retaliation is the very close temporal proximity between
her learning of Plaintiff’s grievance and her writing the ticket. And she suggests
that this sequence of events is insufficient to suggest any kind of causal relationship
between Defendant’s grievance and the ticket.
Plaintiff has presented evidence of very close temporal proximity between his
grievance and the disciplinary report. Although “suspicious timing alone is rarely
sufficient to defeat a motion for summary judgment,” Silverman v. Bd. of Educ. of
City of Chi., 637 F.3d 729, 736 (7th Cir. 2011), it can be in some circumstances. For
example, in Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009), an inmate who
was onerously strip searched “almost immediately after making [a] protected
complaint about strip searches” presented evidence of causation through
chronology. Here, Defendant filed the disciplinary report closely on the heels of
learning of Plaintiff’s protected activity. See Kidwell, 679 F.3d at 971; Mays, 575
18
F.3d at 650. This one-day intervening period of time could ordinarily allow a jury to
infer that Defendant filed the disciplinary report because of the grievance.
Defendant’s intervening discovery that Plaintiff had expired medication in
his cell might seem to neutralize the inference of causation based upon this
temporal proximity. An inference of causation based on temporal proximity is
inappropriate when “a significant intervening event separates an [individual’s]
protected activity from the adverse . . . action he receives.” Kidwell, 679 at 967.
Here, construing the facts in Plaintiff’s favor, Defendant learned of the expired
medication in Plaintiff’s cell after learning that he had filed a grievance. If that is
the case, Defendant’s knowledge of the expired medication would be more proximate
to the ticket than her learning that Plaintiff had filed a grievance.
However, reasonable jury could conclude that this intervening discovery does
not negate Plaintiff’s prima facie case of causation. First, as discussed below,
Plaintiff has provided evidence that Defendant would not ordinarily write a ticket
based on possession of expired medication. See infra at 21-22. Second, Plaintiff has
presented evidence of animus, as he claims that Defendant threatened on October
27, 2011 to retaliate if he filed a grievance. This sort of “disparaging comment[]
made about a plaintiff’s protected conduct” is evidence of causation in a retaliation
claim when it is followed by adverse treatment. See Jackson v. Raemisch, 726 F.
Supp. 2d 991, 1007 (W.D. Wis. 2010); Magyar v. St. Joseph Regional Med. Ctr., 544
F.3d 766, 773. (7th Cir. 2008) (holding that evidence that a defendant has a problem
with a plaintiff’s protected conduct is enough to raise an inference of causation).
Defendant attempts to dismiss the importance of her purported threat, as it was
19
nearly fifty days old when she filed the disciplinary report. (Doc. 28 at 13). However,
a reasonable jury could conclude that the threat was not too remote to matter.
Defendant directly tied part of the December 16 disciplinary report to Plaintiff’s
behavior from October 27 (for which he was already charged and disciplined), as she
relied upon it as one of the bases for the insolence charge. (Doc. 32 at 3).6
Collectively, this evidence of causation – the temporal proximity between Plaintiff’s
grievance and the disciplinary report, the possibility that the expired medication
provided a convenient pretext for writing a ticket, and Defendant’s past hostility
towards Plaintiff filing a grievance – is enough to survive summary judgment.
B. Pretext
Defendant next argues that she can rebut Plaintiff’s prima facie case by
presenting evidence that she would have issued the disciplinary report regardless of
Plaintiff’s protected activity. See Greene, 660 F.3d at 978 (requiring but for
causation in First Amendment retaliation cases, and explaining that there is no
“constitutional tort such as infringing a person’s freedom of speech” when “the
defendant’s improper motive would have done no work, had no effect, [and] left the
world unchanged.”).
Defendant argues that Plaintiff received the disciplinary report because he
violated prison rules, as IDOC regulations clearly prohibit Plaintiff from keeping
expired medication in his cell. See Offense No. 203, Ill. Admin. Code tit. 20, § 504,
Plaintiff insists that the insolence charge included in the December 16
disciplinary report is baseless, as he says he had not had any contact with
Defendant in over a month. (Pl.’s Decl. 5 (Doc. 31 at 30)). In her reply brief,
Defendant does not directly dispute this, but argues that she based the insolence
charge on an “ongoing and [] pattern of behavior,” that began with Plaintiff’s
behavior on October 27.
6
20
App. A (prohibiting inmates from possessing unauthorized prescription medicine). It
is undisputed that Defendant had nothing to do with arranging for the shakedown
of Plaintiff’s cell and was not involved in the shakedown of Plaintiff’s cell. All she
did was receive the expired medications found in Plaintiff’s cell. Moreover, it is
undisputed that Plaintiff possessed certain expired medications, including
hydrocortisone cream and cold pills.
A plaintiff may overcome a defendant’s non-retaliatory reason for writing a
disciplinary report by providing evidence that it is pretextual. See Swearnigen-El,
602 F.3d at 861. To demonstrate pretext at the summary judgment stage, Plaintiff
“must produce evidence upon which a rational finder of fact could infer that the
defendant’s proffered reason is a lie.” Zellner v. Harrick, 639 F.3d 371, 379 (7th Cir.
2011).
Plaintiff has presented such evidence. First, he argues that many of the
medications that were recovered from his cell during its shakedown and included in
Defendant’s ticket were available in the commissary on an over-the-counter and
non-prescription basis. (Doc. 31 at 21; 37). Second, he argues that Defendant
included a stale claim for “belligerent and argumentative behavior” in the
disciplinary report. (Id. at 21). And third, he declares that since writing the
disciplinary report, Defendant has told him that he shouldn’t worry about refilling
prescriptions or possessing expired medication because so long as the medication is
“in [his] name and prescribed to [him], no one is going to say anything about it.”
(Pl.’s Decl. 7 (Doc. 31 at 32)). Standing alone, the fact that some of the medications
that Plaintiff possessed were over-the-counter, and the fact that Defendant filed a
21
cumulative disciplinary report that captured some old behavior unrelated to his
possession of medication are not enough to overcome the non-retaliatory reason for
Plaintiff’s discipline. Rather, those two facts simply suggest that Defendant was
motivated by both her desire to retaliate and Plaintiff’s failure to comply with IDOC
rules. As Greene explains, retaliation must be a necessary cause for the adverse
action rather than simply a sufficient cause.
See 660 F.3d at 978. However,
Defendant’s subsequent statements call into question her reason for writing the
ticket. If true, her statement suggests that she does not view possession of properlyprescribed but expired medication as a reason for writing a disciplinary report. A
reasonable jury could therefore find that Defendant’s provided reason for writing
the disciplinary report is a lie. See Zellner, 639 F.3d at 379.
C. Qualified Immunity
Finally, Defendant argues that she is entitled to qualified immunity. Courts
employ a two-part inquiry in determining whether a defendant is entitled to
qualified immunity: “(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.”
Williams v. City of Chi., 733 F.3d 749, 758 (7th Cir. 2013). As the discussion above
makes clear, the facts, taken in the light most favorable to Plaintiff, make out a
violation of Plaintiff’s First Amendment rights. Moreover, Plaintiff’s right is clearly
established. See Pearson v. Welborn, 471 F.3d 732, 742 (7th Cir. 2006) (“[A]
reasonable public official . . . would understand that retaliating against a prisoner
on the basis of his complaints about prison conditions is unlawful.”).
22
As Plaintiff has presented evidence that his grievance motivated Defendant
to file a disciplinary report and has also presented evidence that the reason for
filing the disciplinary report was pretextual, summary judgment with respect to the
December 2011 grievance is inappropriate. At trial, Plaintiff will not be entitled to
damages for mental or emotional injury. (See Doc. 31 at 22 (Plaintiff’s concession
that damages for mental and emotional injuries are unavailable)).
III.
Motion to Strike
One last issue must be resolved. Plaintiff has moved to strike Defendant’s
reply brief in support of her motion for summary judgment. (Doc. 33). Plaintiff
argues that Defendant’s reply brief “contains false misleading statements”
regarding IDOC’s regulations on disciplinary reports. In that brief, Defendant
argued that the IDOC regulations permit staff members to file disciplinary reports
that pertain to an inmate’s pattern or practice of rule violations. (Doc. 32 at 4).
Under this reading, a staff member could file a report that reaches back to the very
beginning of the start of the prisoner’s bad behavior so long it is served within eight
days of a prisoner’s last rule violation. (Id.).
Plaintiff argues that this reading of
the regulation is directly contrary to its text, which requires staff to observe
offenders, write a disciplinary report for rule violations, and serve a copy of the
disciplinary report within eight days of the commission of any offense. (Doc. 33 at 13).
Ultimately, the Court considers Defendant’s assertions about the effects of
the IDOC regulations to be legal arguments and not errant statements of fact.
Plaintiff disagrees with Defendant’s reading of the regulations, and he made his
23
view of the regulations clear in responding to Defendant’s Motion for Summary
Judgment. (Doc. 31). This disagreement is not grounds for striking the reply brief,
so Plaintiff’s motion is denied.
CONCLUSION
IT IS THEREFORE ORDERED:
1. Defendant Lorna Pitch-Stoke’s Motion for Summary Judgment (Doc. 28) is
GRANTED IN PART and DENIED IN PART. The motion is granted with
respect to Plaintiff’s claim relating to the disciplinary report issued in
November 2011, but denied with respect to Plaintiff’s claim related to the
disciplinary report issued in December 2011.
2. Plaintiff Carl Gallo, Jr.’s Motion to Strike (Doc. 33) is DENIED.
3. This matter is set for a telephonic status conference on March 23, 2016 at
1:30 p.m.
The Clerk is directed to issue a telephone writ for Plaintiff’s
appearance by phone.
Entered this 7th day of March, 2016.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?