Grissette v. Reed et al

Filing 42

OPINION entered by Judge Michael M. Mihm on 7/28/2016. IT IS ORDERED:1. Plaintiff's motion for summary judgment is denied 28 , 29 . 2. Defendants' motion for summary judgment is denied 36 . 3. Defendants' motion to strike Plaintif f's motion for summary judgment is denied as moot 38 . 4. Defendants' motion for leave to file a late reply to Plaintiff's response is denied as futile 41 . The proposed reply is a motion to strike Plaintiff's response for fail ure to comply with local rules. While the Court could demand strict compliance with Local Rule 7.1(D)(6), Plaintiff's response clearly sets forth his positions in separately numbered paragraphs, citing to and attaching relevant, admissible evid ence. The disputed factual issues are readily identifiable from Plaintiff's response. 5. This case is referred to Magistrate Judge Hawley for a settlement conference. If settlement cannot be reached, final pretrial and trial dates will be scheduled. 6. The clerk is directed to notify Magistrate Judge Hawley of the referral of this case to him for a settlement conference. See full written Opinion. (VH, ilcd)

E-FILED

Thursday, 28 July, 2016 03:03:11 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
OSCAR GRISSETTE,
Plaintiff,
v.
JODY REED,
JOHN WEAVER, and
ROBBIE JOHNSON,
Defendants.

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14-CV-1478

OPINION
MICHAEL M.MIHM, U.S. District Judge.
Plaintiff, proceeding pro se from his incarceration in Lawrence
Correctional Center, pursues a claim that Defendants terminated
him a second time from his prison bakery job in Illinois River
Correctional Center in retaliation for Plaintiff’s grievances and
successful efforts to be reinstated to his job.
Before the Court are the parties’ cross-motions for summary
judgment. As more fully explained below, summary judgment must
be denied to both sides because a rational juror could find for either
side on this record.

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Summary Judgment Standard
"The court shall grant summary judgment 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). A movant may demonstrate the absence of a material
dispute through specific cites to admissible evidence, or by showing
that the nonmovant “cannot produce admissible evidence to
support the [material] fact.” Fed. R. Civ. P. 56(c)(B). If the movant
clears this hurdle, the nonmovant may not simply rest on his or her
allegations in the complaint, but instead must point to admissible
evidence in the record to show that a genuine dispute exists. Id.;
Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011).
“In a § 1983 case, the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must
come forward with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.” McAllister v. Price, 615
F.3d 877, 881 (7th Cir. 2010). At the summary judgment stage, the
evidence is viewed in the light most favorable to the nonmovant,
with material factual disputes resolved in the nonmovant's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
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genuine dispute of material fact exists when a reasonable juror
could find for the nonmovant. Id.
Facts
In March 2012, Plaintiff was fired from his prison bakery job
at Illinois River Correctional Center on accusations that he had
attempted to steal bacon. According to Plaintiff, he had not tried to
steal the bacon—the bacon had been given to him and other
workers by the supervisor, but Plaintiff had been unable to eat the
bacon because he was working so he stored the bacon in his locker
and was carrying the bacon out from the locker room. (Pl.’s Dep.
pp. 13, 14-15.) A disciplinary report was not written against
Plaintiff for stealing bacon, even though he was terminated from his
job.
According to Plaintiff, he filed a grievance about his
termination on May 8, 2012, but received no response. Plaintiff’s
counseling summary reflects that Plaintiff gave Counselor Shepler
an unspecified grievance on May 8, 2012 which was forwarded to
the grievance officer. Plaintiff contends that the grievance officer at
that time would have been Defendant Johnson. (5/8/12
cumulative counseling summary, d/e 40, p. 41.) Plaintiff avers that
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he complained to Assistant Warden Morgan and Counselor Shepler
on a number of occasions about Defendant Johnson’s repeated
failure to respond to this and other grievances. (Pl.’s Dec. para. 10.)
Plaintiff was eventually told to resubmit his grievance.
Plaintiff filed another grievance in November 2012 about the
job termination which was denied by Defendant Johnson for the
stated reason that Plaintiff had disobeyed orders not to leave the
bakery with the bacon. (12/19/12 Grievance Officer’s Report, d/e
37-3, p. 3.)
In April 2013, Plaintiff talked to Assistant Warden Jackson
about Plaintiff’s termination from his bakery job. (Pl.’s Declaration
para. 13; Pl.’s Dep. p. 15.) Assistant Warden Jackson intervened on
Plaintiff’s behalf and told Defendants Weaver and Reed that they
should rehire Plaintiff. (Defs.’ undisputed fact 11.) Based on a later
conversation Plaintiff had with Assistant Warden Jackson, Plaintiff
believed he would be rehired in April, but he was not. (Pl.’s Dec.
para. 15.) Instead, Plaintiff received a memo dated May 28, 2013,
from Defendant Weaver (asserting the title of Acting Superintendent
of Illinois Correctional Industries) which stated:

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Please be advised, the Previous Acting C.E.O. of
Correctional Industries had come out with a policy that
states, anyone terminated for any reason related to the
bakery, will no longer be eligible to be rehired period.
This is not my policy. I would like to be able to give
second chances to the individuals who deserve them. I
understand your situation, but with the current policy
there is nothing that can be done.
(5/28/13 Memo, d/e 40, p. 52.) The memo does not say who the
previous acting chief executive officer was, when the purported
policy barring all rehires was instituted, or how the policy was
instituted or communicated. Plaintiff testified that Defendant
Weaver was not the Superintendent on this date, (Pl.’s Dep. p. 53),
and Defendant Weaver has not filed an affidavit.
On June 2, 2013, Plaintiff filed another grievance asking to be
reinstated to his bakery job, citing to Assistant Warden Jackson’s
recommendation that he be rehired and asking that Jackson be
contacted to confirm this. (6/2/13 grievance, d/e 40, p. 53.)
Defendant Johnson, this time acting as Plaintiff’s counselor not as
a grievance officer, responded on June 11, 2013, writing that
Plaintiff’s termination had been appropriate because of Plaintiff’s
theft and that the Assistant Warden “would not be bothered with a
phone call.” Id. Johnson admits that he acted as Plaintiff’s
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counselor only from July 2, 2013 through July 24, 2013, meaning
that Johnson would not have been Plaintiff’s counselor on this date.
(Defs.’ undisputed fact 3.) Johnson has not filed an affidavit and
does not explain why he completed the counselor portion of this
grievance if he was not Plaintiff’s counselor at the time.
Sometime between June 11, 2013 and June 16, 2013, Plaintiff
showed Assistant Warden Jackson a copy of Defendant Weaver’s
memo barring rehires and Johnson’s response to Plaintiff’s
grievance. (Pl.’s Dec. para. 20.) Based on a later conversation with
Assistant Warden Jackson, Plaintiff believed that he was going to be
reinstated. (Pl.’s Dec. paras. 21, 22.)1 This time Plaintiff was
correct. On June 19, 2013, Plaintiff was rehired to his bakery job,
despite the purported policy against rehires. (Pl.’s Dec. para. 24.)
Five days after his reinstatement, Plaintiff was pulling a heavy
cookie machine with four rollers across the floor. One of the rollers
became stuck in a drain and the machine tipped over but did not
fall completely. After several attempts, Plaintiff and other inmates

1

 Plaintiff avers that Assistant Warden Jackson told Plaintiff that he had overruled Defendants and ordered 
Plaintiff’s reinstatement, but that Defendants were angry and would be looking for a reason to terminate Plaintiff.  
This is inadmissible hearsay‐‐‐it cannot be admitted to show that Defendants were in fact angry and looking for a 
reason to fire Plaintiff.   However, what Jackson said could be admissible to show why Plaintiff believed that he 
would be rehired. 

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were able to right the machine, but Plaintiff saw that the “bell
housing unit” had been damaged. (Pl.’s Dep. pp. 19-20.) Plaintiff
believed, based on the bakery’s past practices when machines were
damaged, and based on a meeting with Defendant Jody Reed after
the cookie machine was damaged, that money would be deducted
from the pay of Plaintiff and other inmates on the sweet goods crew,
with Plaintiff bearing the most of the deductions, but that Plaintiff
would not be terminated. (Pl.’s Dec. paras. 27-32.) Plaintiff filed an
affidavit of an inmate who worked in the bakery from May 2011 to
March 2013 who avers that the standard practice when machines
were damaged in the bakery was to dock inmates’ pay and that to
his knowledge no one had been terminated from the bakery for
damaging a machine. (Biladeau Aff. para. d/e 40 pp. 59-61.)
On June 26, 2013, Defendant Reed wrote Plaintiff a
disciplinary report charging Plaintiff with damage or misuse of
property. (5/26/13 disciplinary report, d/e 40, pp. 28.) Reed
accused Plaintiff of “causing the bell housing, motor and drive
linkage to be severely damaged,” resulting in $900 in damage. Reed
further wrote that Plaintiff had admitted to being careless. Id.

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Plaintiff asserts that he never admitted to being negligent and
he disputes that the cookie machine was damaged in the amount of
$900. He submits service records which show that the bell housing
was replaced or serviced on June 24, 2013, the day of the mishap,
(d/e 40, p. 89), and he testified in his deposition that the machine
was still running the next two days. (Pl.’s Dep. p. 66.) Plaintiff
admits that there were two cookie machines, but Plaintiff testified
that he could tell the difference between them and that he thought
the other cookie machine was broken at the time. (Pl.’s Dep. p. 68.)
To prove that Plaintiff did cause $900 in damage, Defendants
submit orders for a shaft gear motor, rocker arm, shuttle lever, and
shuttle angle, which total $1,099.03. However, the orders are dated
in March and October of 2014, about one year to one and one-half
years after Plaintiff’s incident with the cookie machine. Defendants
offer no affidavit authenticating these orders or stating that these
orders were to fix the damage caused by Plaintiff on June 24, 2013.
On this record, a reasonable inference arises that the damage
caused by Plaintiff involved only the bell housing and that
Defendants have no evidence of the cost of fixing that bell housing.
Plaintiff was terminated from his bakery job on July 1, 2013,
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found guilty of damaging property, and assessed $900. (7/5/13
Adjustment Committee Report, d/e 37-5, p. 1.)
According to Plaintiff, Plaintiff spoke with Defendant Weaver
after he was fired, and Weaver told Plaintiff “his reasoning why I
was fired, why I should have never been hired back, why Assistant
Warden Jackson don’t run nothing, I mean he went into a little rant
thing about, you know, basic, this is bakery, and ain’t nobody going
to tell him what to do and how to run the bakery and all this type of
stuff.” (Pl.’s Dep. p. 53.) Plaintiff also testified that Weaver told
Plaintiff that “he made sure that I was going to not get my job back”
by telling someone in Springfield that Plaintiff had intentionally
broken the machine. (Pl.’s Dep. pp. 54-55.) Plaintiff further stated
in his declaration that “John Weaver stated that since I like to write
grievances that they would make sure I never return to the bakery.”
(Pl.’s Dec. para. 46.) John Weaver also told Plaintiff that “he had
spoken to Robbie Johnson and Jody Reed to make sure a ticket was
written and that any grievance I filed would be denied.” (Pl.’s Dec.
para. 48.) These purported statements would be admissible at trial
as a statement against interest. Fed. R. Evid. 801(d)(2).

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On July 5, 2013, Plaintiff filed a grievance about his discipline.
On that date, Plaintiff’s counselor would have been Counselor
Harris because Plaintiff had been moved to a different housing unit
the day he was terminated from his job. (Pl.’s Dep. p. 39.) About
two weeks later Plaintiff was moved back to his original housing
unit, where Defendant Johnson was Plaintiff’s counselor. Johnson
responded to Plaintiff’s grievance on July 18, 2018, in the counselor
section, writing “I/M was careless/negligent causing hundreds of
dollars of damages to vital equipment. IDR written/[illegible]/
sanctioned appropriately. Deny.” (d/e 40, p. 77.) Per the standard
procedures, a grievance about a disciplinary report goes directly to
the grievance officer, not the counselor. Id. (instructions to send
grievance about discipline at present facility to grievance officer).
Johnson has filed no affidavit and does not explain why he
completed the counselor portion if the grievance should have gone
directly to the grievance officer.
According to Plaintiff’s counseling summary, Defendant
Johnson spoke to Plaintiff on July 19, 2013 and noted in the
summary:

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SW with the IM about the numerous grievances he had
filed about being fired in the bakery. Tried to explain to
the IM that by his own admission he had been fired once
for theft, broke a conveyor belt that shut the bakery
down for 3 days because he was beating a pan against it,
and had now broke another machine costing $900 in
repairs. Based upon all this, the bakery can’t afford to
employ him due to theft, damages, and danger of hurting
someone. IM contends the State should pay for all this
and let him continue to work. NO.
(7/19/2013 cumulative counseling summary, d/e 40, p. 39)(caps in
original). Plaintiff testified in his deposition that the conveyor belt
had broken on someone else’s shift and that he and several other
inmates had been charged restitution per standard procedure but
that no one was terminated. (Pl.’s Dep. pp. 62-64.) He further
testified that it is not possible to beat a pan on the part of the
conveyor belt that broke—the chain. (Pl.’s Dep. p. 63.) Defendants
do not now contend that Plaintiff broke the conveyor belt.
Analysis
Plaintiff must point to admissible evidence 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) the First Amendment activity was ‘at least a
motivating factor’ in the Defendants' decision to take the retaliatory
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action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012)(quoted
cite omitted). If Plaintiff clears this hurdle, Defendants can still
succeed if they prove that the retaliatory action would have
occurred anyway, unless Plaintiff has evidence that Defendants’
proffered reason for their action is pretextual, that is, a lie. Mays v.
Springborn, 719 F.3d 631, 633 (7th Cir. 2013); Thayer v.
Chiczewski, 705 F.3d 237, 250-51 (7th Cir. 2012).
Plaintiff has met his burden, or so a rational jury could find.
Defendants do not dispute that Plaintiff’s grievances and oral
complaints to the Assistant Warden and others were protected First
Amendment activity. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.
2000)(“[A] prison official may not retaliate against a prisoner
because that prisoner filed a grievance.”)(retaliation claim stated
where inmate was removed from prison job shortly after filing a
grievance); Pearson v. Welborn, 471 F.3d 732, 741(7th Cir.
2006)(“[W]e decline to hold that legitimate complaints lose their
protected status simply because they are spoken.”)
Defendants argue that Plaintiff has no evidence that
Defendants’ actions were motivated by retaliation, but Defendant
Wear’s purported admissions to Plaintiff allow an inference of
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retaliatory motive. Further, the timing of Plaintiff’s termination,
just days after Plaintiff’s reinstatement by Assistant Warden
Jackson, also allows an inference of retaliatory motive, particularly
in light of the nonstandard handling of Plaintiff’s grievances by
Defendant Johnson, the confusing and unexplained memo
authored by Defendant Wear after Plaintiff’s reinstatement was
recommended by the Assistant Warden, and the evidence that the
damage to the machine was overstated in Defendant Reed’s
disciplinary report. Defendants point out that Plaintiff did not
name Defendants in his initial grievances about his first
termination, but that does not detract from Plaintiff’s evidence that
Defendants knew about and were motivated by Plaintiff’s protected
speech to protest his termination, speech that resulted in his
reinstatement.
Defendants also argue that Plaintiff did not suffer a
deprivation serious enough to deter him from exercising First
Amendment rights because Plaintiff testified in his deposition that
Defendants’ actions would not deter him from filing grievances—
“No, I wouldn’t be less – if a situation occurred where I felt I had to
grieve it, I’ll grieve it.” (Pl.’s Dep. p. 73.) However, the question is
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not whether Plaintiff himself was actually deterred, but whether a
person of “ordinary firmness” would be deterred. Santana v. Cook
County Bd of Review, 679 F.3d 614, 623 (7th Cir. 2012)(to state a
claim the alleged adverse action—independently tortious or not—
must be sufficient to deter an “ordinary person” from engaging in
that First Amendment activity in the future)(citing Surita v. Hyde,
665 F.3d 860, 878 (7th Cir. 2011) and Fairley v. Andrews, 578 F.3d
518, 525 (7th Cir. 2009)); proposed Seventh Circuit pattern
instruction 6.03 (Plaintiff must prove that the retaliatory conduct
“would deter an average person in Plaintiff’s circumstances from
engaging in similar [protected speech or conduct]”)(brackets and
italics in original). A rational juror could find that a retaliatory job
termination would deter the average inmate from filing grievances
or engaging in protected speech in the future.
Defendant Reed contends that the disciplinary report he wrote
was not false. That is true in so far as the report accuses Plaintiff
of damaging the cookie machine. But whether Plaintiff caused
severe damage to the motor and drive linkage is disputed, as is
whether the cost of the repairs were $900. Additionally, whether
Reed would have filed the report at all in the absence of a retaliatory
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motive is disputed. Plaintiff has evidence that the standard practice
was to dock inmates’ pay to cover repairs, not to write disciplinary
reports and terminate workers.
Defendants Reed and Weaver argue that they had a legitimate
reason to terminate Plaintiff, based on Plaintiff’s first termination
and Plaintiff’s damage to the cookie machine shortly after he was
rehired. Yet, even if Defendants had submitted affidavits explaining
their motivations, their sincerity would be a disputed question for
the jury to decide. Plaintiff has enough evidence for a rational juror
to find that the proffered reason for termination was pretextual.
The same evidence discussed above that allows an inference of
retaliatory motive allows an inference that Plaintiff would not have
been terminated but for his protected speech to be reinstated. That
is not to say that summary judgment is warranted for Plaintiff. The
jury could rationally find for Defendants or for Plaintiff, so summary
judgment must be denied to both sides.
Defendants also argue for qualified immunity, but the
argument is perfunctory and ignores disputed issues of material
fact. Resolving disputed facts in Plaintiff’s favor, Defendants
intentionally engineered Plaintiff’s termination and discipline solely
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out of retaliation for Plaintiff’s grievances and discussions with
Assistant Warden Jackson. That conduct, if true, violated Plaintiff’s
clearly established rights. DeWalt, 224 F.3d at 618; Pearson,
Welborn, 471 F.3d at 741.
However, a legal question not raised by the parties may be
lurking here. In Herron v. Meyer, 820 F.3d 860, 863-64 (7th Cir.
2016), the Seventh Circuit wondered in dicta why “the First
Amendment offers greater protection to prisoners than to public
employees,” in that a public employee’s “personal gripe” about the
workplace is not protected but “[m]any decisions assume that
essentially everything a prisoner says in the grievance system—if
not everything a prisoner says to a guard—is protected by the First
Amendment.”
This statement in Herron conflicts with Bridges v. Gilbert, 557
F.3d 541, 551 (7th Cir. 2009), a case in which the Seventh Circuit,
reversing a prior decision, concluded that “a prisoner's speech can
be protected even when it does not involve a matter of public
concern.” The Seventh Circuit later stated more strongly in
Watkins v. Kasper, 599 F.3d 791 (7th Cir. 2010), that, “[u]pon
further consideration, we think that it's time to completely jettison
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the public concern test from our prisoner free speech
jurisprudence, . . . .”); see also Ogurek v. Gabor, 2016 WL 3512626
(7th Cir. 2016)(discussing Herron but concluding that any tension
with prior precedent was irrelevant because an inmate’s complaints
about assaults and being framed were not “personal gripes”). The
Seventh Circuit has not overruled Watkins or Gilbert, so the public
concern test is not applicable to this case. The Court brings Herron
to the parties’ attention because the case may indicate a willingness
by the Seventh Circuit to revisit the question.
IT IS ORDERED:
1. Plaintiff’s motion for summary judgment is denied (28, 29).
2. Defendants’ motion for summary judgment is denied (36).
3. Defendants’ motion to strike Plaintiff’s motion for summary
judgment is denied as moot (38).
4. Defendants’ motion for leave to file a late reply to Plaintiff’s
response is denied as futile (41). The proposed reply is a motion to
strike Plaintiff’s response for failure to comply with local rules.
While the Court could demand strict compliance with Local Rule
7.1(D)(6), Plaintiff’s response clearly sets forth his positions in
separately numbered paragraphs, citing to and attaching relevant,
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admissible evidence. The disputed factual issues are readily
identifiable from Plaintiff’s response.
5. This case is referred to Magistrate Judge Hawley for a
settlement conference. If settlement cannot be reached, final
pretrial and trial dates will be scheduled.
6. The clerk is directed to notify Magistrate Judge Hawley of the
referral of this case to him for a settlement conference.
ENTERED: 7/28/2016
FOR THE COURT:
s/Michael M. Mihm
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

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