Hannah v. Vincent et al

Filing 51

OPINION entered by U.S. Magistrate Judge Byron Cudmore: Defendants' Motion for Summary Judgment 43 is ALLOWED IN PART. Summary judgment is granted in favor of Defendant Jackson. The Clerk is directed to terminate Defendant Jackson. Judgment will be entered in Jackson's favor at the close of this case. Defendants' motion for summary judgment is otherwise denied. The case is referred back to U.S. Magistrate Judge David G. Bernthal for a supplemental settlement conference. (LB, ilcd)

E-FILED

Tuesday, 19 November, 2013 11:58:31 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, PEORIA DIVISION

DEMEL HANNAH,

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Plaintiff,
v.
JULIA VINCENT,
STIRLING EDWARDS,
KELLY L. GRAHAM, and
LEONTA L. JACKSON,
Defendants.

No. 11-cv-3432

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
Plaintiff, currently incarcerated in Pontiac Correctional Center and
proceeding pro se, pursues First Amendment claims based on a disciplinary
report and subsequent discipline he received for language he used in a
grievance.
Defendants move for summary judgment. After reviewing the
evidence, the Court concludes that a rational juror could find that the
language used by Plaintiff in his grievance could not reasonably be
interpreted as threatening or intimidating. A rational jury could therefore
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find that the punishment Plaintiff received for using that language was in
retaliation for Plaintiff exercising his First Amendment rights. Accordingly,
summary judgment is denied.
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).
In response, the nonmovant 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).
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.

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FACTS
The facts are largely undisputed. During his incarceration in Western
Illinois Correctional Center, Plaintiff repeatedly attempted to obtain
restoration of good conduct credits. Plaintiff sent his requests to Paul
Vincent, who is, according to Plaintiff, the husband of Defendant Julia
Vincent. Plaintiff’s attempts to restore his good time were unsuccessful,
which led Plaintiff to file a grievance on March 4, 2011:
Brief Summary of Grievance: This grievance is being taken
due to a recent denial of restoration of good time on the basis of
the nature of the offenses which resulted in the loss of time.
Since being a resident of the facility I’ve submitted for restoration
of good time approximately 11 times and I’ve been consistently
denied for 1 of 3 reasons. It’s either because the committee
needs more observation to make a determination, because I’ve
exhibited poor conduct since my last submission, or because
granting restoration at this time will somehow undermine the
seriousness of the offense. If you observe my record far as the
offense which resulted in the loss of time it’s apparent that I once
struggled with substance abuse and anger. Since Oct. of 2005
I’ve been drug tested numerous times and every time I’ve
passed with flying colors. Furthermore, I went nearly 6 years
without engaging in any physical contact. The staff assault that
I caught in Lawrence C.C. in 2003 was a minor assault which is
why only 3 months was revoked. Moreover, the assault didn’t
allege that I struck the officer in any capacity. The ticket stated
that I yanked on the handcuff which caused the officer to scrape
his hand on the door. Over a 5 year span I’ve acquired my
general equivalency diploma, lifestyle redirection certificate,
anger management certificate, computer technology certificate,
held a machine operator position in the laundry facility, and I’m
currently employed as a vocational janitor. Mr. Van Strien
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would have noticed this [if] he would have truthfully checked my
status.
Relief Requested: I request that I be given a fair and complete
evaluation by the committee whereas I can attempt to forge a
counter attack against the members that refuse to grant
restoration.
(Pl.’s 3/4/11 grievance, d/e 46-1, pp. 1-2).
Plaintiff marked this grievance an emergency. However, the Warden,
or his designee, checked the box on the form which stated “No; an
emergency is not substantiated. Offender should submit this grievance in
the normal manner.” Id. The grievance was returned to Plaintiff,
whereupon Plaintiff submitted the grievance to his counselor, Defendant
Julia Vincent. Julia Vincent received the grievance on March 31, 2013.
(Counselor’s Response to Pl.’s 3/4/11 grievance, d/e 46-1, p. 1).
Meanwhile, on March 23, 2013, Defendants Julia Vincent and Kelly
Graham, acting in their capacities as Adjustment Committee members,
recommended that Plaintiff be found guilty of insolence for remarking to an
employee that she was “sure looking good today.” Plaintiff was punished
with a grade demotion and a job assignment change.
On April 5, 2011, Plaintiff filed a grievance about the punishment for
insolence, complaining in part that Julia Vincent’s participation in the
disciplinary hearing constituted a conflict of interest with her role as Plaintiff’s
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counselor. Plaintiff stated that Julia Vincent “has a history of distorting
statements rendered by inmates and a history of ruling in favor of staff
members.” (Pl.’s 4/5/11 grievance, d/ 46-1, pp. 6-7). Plaintiff asked for
expungement of the discipline. He also asked that Julia Vincent “be
permanantely [sic] removed from the adjustment committee based on her
historical bias towards inmates.” Id. Plaintiff marked this grievance an
emergency. However, no response by the Warden or anyone else is on the
grievance in the record.
On April 6, 2011, the day after Plaintiff had filed his emergency
grievance complaining about Julia Vincent, Julia Vincent responded to
Plaintiff’s grievance about the refusal to restore any of Plaintiff’s good time
credits. Julia Vincent wrote “You have been given full administrative review
and you may request again in 90 days.” (Counselor’s Response to 3/14/11
grievance, d/e 46-1, p. 1). The same day (April 6, 2011) Julia Vincent
wrote a disciplinary report against Plaintiff accusing Plaintiff of intimidation
and threats based on the language Plaintiff had used in the grievance.
Defendants Graham and Edwards recommended that Plaintiff be
found guilty of intimidation or threats, reasoning that “Counselor J. Vincent’s
DOC 0317 reflects above named Offender submitted a grievance that
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included this statement [:] I can attempt to forge a counter attack against
the members that refuse to grant restoration.” (4/12/11 Adjustment
Committee Final Summary Report, 46-1, p. 3). Whether the Adjustment
Committee had a copy of the complete grievance when they made this
determination is not in the record. Plaintiff ultimately received a grade
demotion and one month of segregation, a punishment approved of by the
Warden’s designee, Richard Young. Plaintiff personally talked to the
Warden about the unfair punishment after Plaintiff’s release from
segregation. The Warden promised to look into the matter, but nothing was
done.
According to Plaintiff, after Plaintiff finished serving his segregation
Julia Vincent threatened Plaintiff with more segregation if he filed further
grievances. (Pl.’s Dep. p. 36). In particular, Plaintiff alleges in his
complaint that Julia Vincent said to him, “You feel my might? If you file
something else you’re going back to segregation.” (Complaint, p. 3).
Ultimately, Plaintiff successfully challenged his discipline for
intimidation or threats, but not before he had served his one month in
segregation. On October 25, 2011, the Administrative Review Board found
Julia Vincent’s charge of intimidation or threats to be “unsubstantiated.”
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The ticket was ordered expunged. (10/25/11 letter from the Administrative
Review Board, d/e 46-1, p. 1).
ANALYSIS
Plaintiff maintains that Julia Vincent wrote the disciplinary report
against Plaintiff for intimidation and threats in retaliation for Plaintiff’s
grievance about his good time (because Julia felt that the grievance
impugned her husband Paul) and in retaliation for Plaintiff’s grievance
seeking Julia Vincent's removal as an Adjustment Committee member.
Inmates have a First Amendment right to free speech and to petition
for the redress of grievances, subject to legitimate penological objectives
such as security. See Pell v. Procunier, 417 U.S. 817, 822 (1974)(“[A]
prison inmate retains those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological objectives of
the corrections system.”); Watkins v. Kasper, 599 F.3d 791, 798 (7th
Cir.2010)(“A prisoner has a First Amendment right to make grievances about
conditions of confinement.”). Retaliation for exercising these rights is
prohibited. Babcock v. White, 102 F.3d 267, 276 (7th Cir. 1996).
To survive summary judgment, Plaintiff must first show that
Defendants’ adverse actions were motivated, at least in part, by retaliation
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for Plaintiff’s protected First Amendment activity. Defendants then must
rebut this inference with evidence that the adverse action would have
occurred anyway. The burden then shifts back to Plaintiff, who must have
evidence that Defendants’ innocent explanation is pretextual. In the end,
Plaintiff must prove that retaliation was the real motive for the adverse
action. Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012).
Defendants argue that Plaintiff’s “counterattack” statement was not
protected speech because Plaintiff has no First Amendment right to threaten
or intimidate prison employees. Defendants are correct that insolence and
threats are not protected First Amendment activity in the prison setting, even
if couched in a grievance. See, e.g., Watkins v. Kasper, 599 F.3d 791, 797–
98 (7th Cir. 2010)(inmate had no protected First Amendment right to make
complaints directly to librarian in "confrontational, disorderly manner"); Hale
v. Scott, 371 F.3d 917 (7th Cir. 2004)(inmate had no protected First
Amendment right to state libelous rumor in grievance that officer was
engaging in sexual misconduct); Ustrak v. Fairman, 781 F.2 573, 580 (7th Cir.
1986)(inmate letter calling officers “stupid lazy assholes” and inviting officers
to "bring their fat asses around the gallery" not protected speech); Felton v.
Huibregtse, 2013 WL 2249536 (7th Cir. 2013)(unpublished)(inmate's letter to
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warden outside of grievance process stating "any idiot could see" was not
protected speech).
In the cases cited above, however, the speech in question clearly
crossed the line. That is not the case here. Here, Plaintiff asked “to be
given a fair and complete evaluation by the committee whereas I can attempt
to forge a counter attack against the members that refuse to grant
restoration.” In the context of Plaintiff's grievance, this remark arguably
meant no more than Plaintiff wanted an opportunity to present all his
evidence to counter the committee’s reasons for repeatedly denying
Plaintiff’s requests for good time restoration. Defendants do not explain
why they believed the statement was threatening or intimidating.
Other evidence, drawing inferences in Plaintiff’s favor, suggests that
Defendants did not truly believe Plaintiff’s remarks were threatening or
intimidating.

First, the Warden (or his designee) mentioned nothing about

inappropriate language when he directed Plaintiff to resubmit the same
grievance in the normal manner. Second, though Julia Vincent received
Plaintiff’s grievance on March 31, 2011, she did not write the disciplinary
report until April 6, one day after Plaintiff had filed his emergency grievance
about Julia Vincent. If Julia Vincent had truly felt the statement was
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threatening, why did she wait until nearly a week later to write a disciplinary
report? Lastly, Plaintiff says that Julia Vincent threatened to put Plaintiff
back in segregation if he filed further grievances. This is admissible at trial
as an admission by a party opponent. Fed. R. Evid. 801(d)(2). In sum,
Plaintiff has enough evidence to meet his prima facie burden on summary
judgment and to overcome Defendants’ innocent explanation for their
actions.
However, the Court agrees with Defendant Warden Jackson that
Jackson cannot be held personally responsible for the constitutional
violations. To be personally responsible, Jackson must have caused,
directed, participated in, approved of, facilitated, or turned a blind eye to the
misconduct. Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988).
Warden Jackson cannot be liable solely because he is in charge. Kuhn v.
Goodlow, 678 F.3d 552, 556 (7th Cir. 2012)( "'An individual cannot be held
liable in a § 1983 action unless he caused or participated in an alleged
constitutional deprivation.'")(quoted cite omitted); Chavez v. Illinois State
Police, 251 F.3d 612, 651 (7th Cir. 2001)(no respondeat superior liability
under § 1983).

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Plaintiff does not dispute that Jackson’s designee, not Jackson
himself, signed off on the adverse actions taken against Plaintiff. Plaintiff
argues that Jackson is still personally responsible because Plaintiff spoke to
Jackson after Plaintiff was released from segregation. According to
Plaintiff, Jackson promised in this conversation to look into the matter.
(Plaintiff’s Dep. p. 49). That conversation is not enough for a juror to find
that Jackson was personally responsible for the violations. As Plaintiff
admits, by the time Plaintiff spoke to Jackson, Plaintiff had already been
released from segregation. Id. Further, Jackson maintained in his answer
to Plaintiff’s interrogatories that Jackson believed Julia Vincent had filed her
report in good faith. Failing to take Plaintiff’s side in the dispute does not
violate the Constitution. George v. Smith, 507 F.3d 605, 609-10 (7th Cir.
2007) (“Only persons who cause or participate in the violations are
responsible. Ruling against a prisoner on an administrative complaint does
not cause or contribute to the violation.”); Soderbeck v. Burnett County, 752
F.2d 285, 293 (7th Cir. 1985)(“Failure to take corrective action cannot in and
of itself violate section 1983. Otherwise the action of an inferior officer would
automatically be attributed up the line to his highest superior . . . .”); Crowder
v. Lash, 687 F.2d 996, 1006 (7th Cir. 1982) (supervisor not personally
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responsible for constitutional violations within prison system solely because
grievance procedure made him aware of it and he failed to intervene).
Summary judgment will therefore be granted to Defendant Jackson.
Defendants assert qualified immunity, arguing that “there is no case
law that clearly establishes the issuance of a disciplinary ticket for
threatening or disrespecting a correctional employee is unconstitutional.”
(Defs.’ Brief, d/e 44 p. 12). That argument looks at the facts in the light most
favorable to Defendants, which the Court cannot do at this stage. Drawing
inferences in Plaintiff’s favor, Julia Vincent wrote the report not because she
honestly believed that Plaintiff’s grievance was threatening or intimidating,
but because she wanted to retaliate against Plaintiff for filing that grievance
and/or the subsequent grievance Plaintiff filed against her. Retaliation for
filing grievances has long violated the Constitution. Babcock v. White, 102
F.3d 267, 276 (7th Cir. 1996)("The federal courts have long recognized a
prisoner's right to seek administrative or judicial remedy of conditions of
confinement, . . . as well as the right to be free from retaliation for exercising
this right."). Defendants are not entitled to qualified immunity.

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IT IS ORDERED:
Defendants’ motion for summary judgment is granted in part (d/e 43).
Summary judgment is granted in favor of Defendant Jackson. The clerk is
directed to terminate Jackson. Judgment will be entered in Jackson’s favor
at the close of this case. Defendants’ motion for summary judgment is
otherwise denied. The case is referred back to U.S. Magistrate Judge
David G. Bernthal for a supplemental settlement conference.
ENTER:

November 19, 2013
_____s/ Byron G. Cudmore_________
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

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