Morris v. Phillips et al
Filing
95
OPINION entered by Judge Sue E. Myerscough on 02/24/2012. SEE WRITTEN OPINION. Defendants' supplemental motion for summary judgment is granted (d/e 90). The clerk of the court is directed to enter judgment in favor of Defendants and against Plaintiff. All pending motions are denied as moot, and this case is terminated, with the parties to bear their own costs. All deadlines and settings on the Court's calendar are vacated. (DM, ilcd)
E-FILED
Friday, 24 February, 2012 04:34:58 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
GREGORY MORRIS,
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Plaintiff,
v.
LARRY PHILLIPS, et al.,
Defendants.
09-CV-3221
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
On June 28, 2011, Judge Harold A. Baker granted summary
judgment on all claims except for Plaintiff’s First Amendment retaliation
claim against Defendants Phillips, Kulhan, McCalla, and McAdory.
Plaintiff maintains that these defendants orchestrated shake downs of his
cell and the confiscation of his property in retaliation for his grievances
and this lawsuit. Judge Baker directed Defendants to file a supplemental
summary judgment motion on the remaining retaliation claim. The case
was then transferred to this Court. For the reasons below, Defendants’
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supplemental summary judgment motion will be granted.
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).
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At the summary judgment stage, 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 genuine dispute of material fact exists when a
reasonable juror could find for the nonmovant. Id.
FACTS
Plaintiff is detained as a sexually violent person in Rushville
Treatment and Detention Center.
On April 9, 2009, Plaintiff’s room was shaken down and the
following property was confiscated: 160 envelopes with stamps; seven
books of matches; one bottle of petroleum; three aluminum pieces; and
17 typewriter disks. (Defendants’ Undisputed Fact12). Plaintiff filed
grievances, complained to staff members, contacted his attorney
representing him in his sexual detention proceeding, and contacted his
family and friends, all in an attempt to recover his confiscated property.
On May 21, 2009, Plaintiff’s room was shaken down again; 330
pieces of carbon paper were taken along with three “cigarette rolling
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machines.” (Defendants’ Undisputed Fact 13).
The following property was confiscated in a shakedown of
Plaintiff’s cell the next month on June 20, 2009:
(a) 876 postage stamps hidden in typewriter cartridges; (b) 9
paper clips; (c) 1 pair broken nail clippers; (d) 1 push pin; (e)
1 screw; (f) 1 broken piece of metal; (g) 1altered safety pin;
(h) 1 excess container; (i) 28 plastic bags; (j) 1 ½ loafs moldy
bread; (k) about 80 packets of sugar; (l) 1 large piece carbon
paper; (m) 18 floppy discs; (n) 4 black markers; (o) 1 broken
antenna connector; (p) tan cable cord; (q) 1 pornographic
drawing; (r) 1 razor-blade type pencil sharpener; (s) 1
cardboard box; (t) a map of Chicago; (u) 8 pieces of
sandpaper; (v) 18 typewriter discs; and (w) 8 altered
typewriter cartridges with 2 books of matches inside.
(Defendants’ Undisputed Fact 14).
In July 2009, Plaintiff met with his therapist and Defendant
McCalla (a security guard) to discuss how Plaintiff wished to have his
confiscated property handled. The therapist agreed to keep some of
Plaintiff’s excess envelopes and stamps for Plaintiff’s later use and helped
him consolidate his photo album, because the rules allow only two photo
albums.
Plaintiff filed this case in August, 2009. Soon thereafter, Plaintiff
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was informed that he would not be allowed to keep letters to his
girlfriend which were saved to his typewriter disk. These letters were
deemed sexually explicit and counter-therapeutic. Plaintiff chose to
delete the writings rather than give up the disk. Judge Baker has already
ruled in his summary judgment order that Defendants had a legitimate
penological interest in prohibiting Plaintiff’s possession of these writings,
so that claim is not before the Court.
On November 22, 2009, Plaintiff’s room was again shaken down
and more property was taken, including:
(a) an altered typewriter ribbon holder that had 15 loose
stamps inside; (b) a $10 money order; (c) 12 + 137 loose
stamps; (d) 186 sheets of stickers plus two sticker books; (e)
28 sheets of carbon paper; (f) 2 magnets; (g) 25 rubber bands;
(h) 1 altered comb; (i) 12 marker inserts; (j) 11 paper clips;
(k) 1 plastic container of a white powder substance; (l) 2
loaves of bread; (m) 7 tobacco packets; (n) 28 envelopes with
usable stamps on them; (o) 16 Ziploc bags; (p) 347 loose
photos; and (q) a 3” floppy disc.
(Defendants’ Undisputed Fact 15). Plaintiff maintains that, after the
shakedown, some legal documents were missing and other property had
been damaged.
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According to policy, shakedowns are supposed to occur every 30 to
60 days and whenever a resident is suspected of having contraband.
Plaintiff does not dispute that he received regular shakedowns before he
filed his grievances as well as after, though less frequently than every 3060 days before those grievances. His cell was searched six times before he
sent his grievances and communications about the April 2009
confiscations: January 5, 2006; November 11, 2006; March 6, 2007;
September 2, 2007; December 26, 2008; and April 2009. Items were
confiscated in each of these searches, including glue, several hundred
postage stamps, cancelled postage stamps, a “‘suspicious solution’” with
stamps in it, markers, floor wax, coaxial tubing; “‘nuisance contraband’”
such as strings, papers clips, and wire; and, the items set forth above in
the April 2009 search.
A zone sergeant assigns the shakedowns by choosing numbers
randomly and keeps a log book of shakedowns performed. Defendant
Phillips, the former facility director, does not assign shakedowns nor does
Defendant McAdory, the security directory. Defendant McCalla is the
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property control officer and met with Plaintiff to discuss his confiscated
property, but McCalla did not direct the shakedowns. The last
Defendant, Defendant Kulhan, does not specifically recall assigning
Plaintiff’s room for a shakedown, but he might have on November 22,
2009 since he was on duty that day and sometimes works as a zone
sergeant. Defendant Kulhan vaguely remembers a confrontation between
Plaintiff and staff regarding a cell shakedown on November 22 and
remembers instructing Plaintiff that the property department would
determine the propriety of the confiscation. Kulhan remembers Plaintiff
asking about his grievances, but Kulhan never personally saw the
grievances.
ANALYSIS
Plaintiff moves to strike the supplemental summary judgment
motion, contending that he never received a copy of Judge Baker’s
summary judgement order entered June 28, 2011, which directed
Defendants to file a supplemental summary judgment motion. The
Court sees nothing in the docket which might suggest that a copy of that
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order was not mailed to Plaintiff. In any event, even if Plaintiff did not
receive a copy, he could have asked for a copy and an extension after he
received the supplemental summary judgment motion, which he clearly
received because he responded to it. Plaintiff also asserts that he “has
never been served with a copy of any motion, petition, or other pleading
that could have lead [sic] to the Court’s order of June 28, 2011.” (d/e
92, p. 2). The record directly contradicts that assertion, as Plaintiff filed
a 161 page response to Defendants’ first motion for summary judgment,
which was the motion addressed in Judge Baker’s order.
In any event, Plaintiff offers no reason why the merits of the
retaliation claim should not be reached. He has had ample time to
discover and produce evidence to support the claim, as well as ample
notice of Defendants’ supplemental summary judgment motion. He
argues that Defendants should not get a second chance at summary
judgment, but there is no reason to have a trial if no rational juror could
find in Plaintiff’s favor. The Court may enter orders necessary to
“expedit[e] disposition of the action” and “improv[e] the quality of the
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trial through more thorough preparation.” See Fed. R. Civ. P. 16(a).
The Court may also exercise its inherent powers to efficiently dispose of
cases. See Moser v. Universal Engineering Corp., 11 F.3d 720 (7th Cir.
1993)(“The inherent authority of the district court to dismiss a case sua
sponte and control its docket is well established.”); Osler Institute v.
Ford, 333 F.3d 832, 836 (7th Cir. 2003)(“When there are no issues of
material fact in dispute, a district court may grant summary judgment on
its own motion—as long as the losing party is given notice and an
opportunity to come forward with its evidence.”). If the Court can move
for summary judgment sua sponte, the Court certainly has the power to
direct the parties to address issues that may be dispositive.
Moving on to the merits, Plaintiff’s conclusion that the shakedowns
were motivated by retaliation for his grievances, letters, and phone calls is
based on speculation and conjecture. The evidence shows that
shakedowns were routinely performed of Plaintiff’s cell and items were
routinely confiscated, both before and after his April 2009 complaints.
Though the frequency of the shakedowns did accelerate somewhat after
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those complaints, the shakedowns were still within the 30-60 day time
frame set by the facility’s policy. Additionally, Plaintiff’s repeated
sequestering of excessive postage stamps, even after repeated
confiscations, gave officers reason enough to conduct more frequent
searches of Plaintiff’s room.
Further, the only Defendant who might have directed one of the
shakedowns is Defendant Kulhan, but there is no evidence that Kulhan
was motivated in any part by retaliation for Plaintiff’s grievances or other
communications. Kulhan knew only generally of the grievances through
Plaintiff’s inquiries and was not even served with this lawsuit until after
the last shakedown. Additionally, the uncontroverted evidence shows
that Plaintiff’s property was confiscated for legitimate reasons of security
and safety. (Defendants’ Undisputed Fact 20). Therefore, Plaintiff has
not demonstrated how a rational juror could conclude that the
confiscations would not have occurred regardless of retaliatory animus.
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996)(“the ultimate
question is whether events would have transpired differently absent the
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retaliatory motive.”).
In sum, a rational juror could not find for Plaintiff on this record.
Therefore, summary judgment is mandated for Defendants on the
retaliation claim.
IT IS THEREFORE ORDERED:
1) Defendants’ supplemental motion for summary judgment is
granted (d/e 90). The clerk of the court is directed to enter judgment in
favor of Defendants and against Plaintiff. All pending motions are
denied as moot, and this case is terminated, with the parties to bear their
own costs. All deadlines and settings on the Court’s calendar are vacated.
2) If Plaintiff wishes to appeal this judgment, he must file a notice
of appeal with this Court within 30 days of the entry of judgment. Fed.
R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis
should identify the issues Plaintiff will present on appeal. See Fed. R.
App. P. 24(a)(1)(c). If Plaintiff does choose to appeal, he will be liable
for the $455.00 appellate filing fee regardless of the outcome of the
appeal.
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ENTERED: February 24, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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