Barrett v. Ashby et al
Filing
122
OPINION: Plaintiff's motion for an order directing the facility to return to him Plaintiff's declaration, which was purportedly confiscated in a shakedown is denied 120 . However, the clerk is directed to send Plaintiff a copy of the decl aration Plaintiff filed in this case (109-1, pp. 1-25.) Plaintiff's motion for the Court to try to recruit pro bono counsel is denied 116 . Defendants' motion for summary judgment is granted 95 . 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. 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. (SEE WRITTEN OPINION). Entered by Judge Sue E. Myerscough on 3/2/2015. (GL, ilcd)
E-FILED
Monday, 02 March, 2015 08:58:01 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DONNIE R. BARRETT,
Plaintiff,
v.
FORREST ASHBY, JAMES
CLAYTON, SALLY HOUGAS,
JOSEPH HANKINS, DALE
KUNKEL, and
EDWINA BIERMANN,
Defendants. 1
)
)
)
)
)
)
)
)
)
)
)
)
)
)
13-CV-3001
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, pursues the following claims: 1)
retaliation for Plaintiff's grievances and freedom of information
requests; and, 2) placement in segregation without procedural due
process and for no legitimate, non-punitive purpose. (2/20/13
Order.) In particular, Plaintiff claims that he was retaliated against
and put in segregation for possessing information obtained by
Plaintiff through a Freedom of Information request regarding
1
Plaintiff voluntarily dismissed Defendants Caraway, Groot, Jumper, and Roth. (8/12/14 text order.)
Page 1 of 15
Defendant Clayton’s work history and qualifications. The case is
now at the summary judgment stage.
After carefully reviewing the evidence, the Court concludes that
a rational jury could not find in Plaintiff’s favor. Plaintiff does not
dispute that one of the reasons for his segregation and discipline
was because a spreadsheet of all the residents’ names, birth dates,
and social security numbers was found in a resident’s room on
Plaintiff’s unit. Plaintiff does not dispute that this resident
informed Defendant Clayton that Plaintiff had given the resident the
spreadsheet. Therefore, regardless of Plaintiff’s protected First
Amendment activity, Plaintiff would have been placed in segregation
anyway. For the same reason, whether Plaintiff received procedural
due process before his placement in segregation is immaterial. A
different process would not have produced a different result.
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).
“In a § 1983 case, the plaintiff bears the burden of proof on
the constitutional deprivation that underlies the claim, and thus
Page 2 of 15
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). However, 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
These facts are set forth in the light most favorable to Plaintiff,
as required at this stage.
According to Plaintiff, on October 30, 2012, Defendant Clayton,
an investigator at the Rushville Treatment and Detention Center,
tried to intimidate Plaintiff by telling Plaintiff that Plaintiff’s
complaints to various outside agencies would go nowhere because
Clayton had worked for the FBI and other law enforcement
agencies. The next day, Plaintiff filed a grievance about this
incident. In the facility, a grievance is also known as an “attempt to
resolve” or “ATR.” (10/31/12 grievance, d/e 109-4, p. 3.)
Page 3 of 15
Plaintiff asserts that Investigator Clayton tried to persuade
Plaintiff to drop the grievance by showing Plaintiff proof that
Clayton had worked for the FBI, but Plaintiff told the grievance
officer that he wished to pursue the grievance. On or about
November 26, 2012, to confirm Investigator Clayton’s purported
work history claims, Plaintiff sent out Freedom of Information
Requests to the Illinois Department of Human Services, the Illinois
State Police, the U.S. Department of Justice, and the Office of the
Executive Inspector General. (11/26/12 letter, d/e 109-5, p. 7.)
On December 5, 2012, Investigator Clayton wrote Plaintiff an
incident report for making false accusations against Clayton.
Clayton wrote :
Barrett claims that this R/I has informed him that I am a
member of the FBI, ISP Investigator, Military Investigator,
DHS OIG investigator. These comments in this ATR are
completely false. At no time did this R/I tell Barrett that
I worked for those agencies. . . .Resident Barrett
appears to have extremely delusional thoughts and
continues to file fraudulent complaints with numerous
agencies. These frivolous complaints by resident Barrett
is causing a waste of State employee resources and
manpower. Barrett is continually trying to manipulate
the DHS/TDF system.
(12/5/12 incident report, d/e 109-4.)
Page 4 of 15
On December 10, 2012, Plaintiff received a notice to appear
before the behavior committee on charges of lying to
staff/attempted staff manipulation/violation of
rules/insolence. The notice accused Plaintiff of filing false
reports “on various dates and various times,” specifically
singling out Plaintiff’s 10/31/12 grievance against Clayton.
(12/10/12 notice, d/e 109-4.)
Plaintiff appeared before the behavior committee on
December 11, 2012, bringing the information he had received
from the Office of Executive Inspector General in response to
Plaintiff’s FOIA request. Included in that response was a
highly redacted questionnaire completed by Investigator
Clayton, which revealed Clayton’s high school and postsecondary education, his work experience and employment,
training, and other parts of his curriculum vitae. (109-5, pp.
5-19.) The behavior committee gave Plaintiff a warning for
lying, noting in their decision that Plaintiff appeared to “truly
believe” that Investigator Clayton had been deceptive about
Clayton’s work history.
Page 5 of 15
Hours after showing the behavior committee the FOIA
documents, Plaintiff’s room was searched by Defendants
Clayton and Hougas, among others. The FOIA information
about Investigator Clayton was confiscated. Clayton avers
that officers also found the name, date of birth, personal
address, and license number of a staff member, but Plaintiff
disputes this. Plaintiff asserts that he did not possess the
staff information and was not interviewed by Clayton about
that information on December 11, 2012. (Pl.’s Dec. paras. 26,
27, 30, d/e 109-1.) Plaintiff also asserts that he had only five
copies of the FOIA information, not thirteen as Clayton states,
and that he intended to send those copies to outside agencies,
not to distribute amongst other residents, as Clayton asserts.
Investigator Clayton avers that he perceived the FOIA
information to contain personal information about him and
believes that dissemination of that personal information posed
a safety threat. (Clayton Aff. paras. 5, 6, 8.) Clayton
instructed officers to search other rooms near Plaintiff’s room
to determine whether the FOIA information had been
distributed. Facility rules prohibit the “verbal or written
Page 6 of 15
disclosure of any personal information about a staff member
with another resident, any staff member, or visitor.” (8/23/01
Memo, d/e 109-8, p. 16)(emphasis in original).
Plaintiff does not dispute Clayton’s averment that,
during the search of another resident’s room on Plaintiff’s unit
on December 11, 2012, “staff found a spreadsheet that
contained all of the TDF residents with their date of birth and
social security numbers. Another resident stated that he had
received this spreadsheet from resident Barrett.” (Defs.’
Undisputed Fact 6, Clayton Aff. para. 6.) Instead, Plaintiff
maintains that “[i]t is beyond the scope and irrelevant as to
what another resident allegedly had in his possession and
whether the alleged information came from me.” (Pl.’s Resp.
para. 6, d/e 109, p. 5.) Clayton avers that Plaintiff admitted
giving the spreadsheet to the resident, another contention that
Plaintiff does not dispute but argues is “irrelevant.” (Pl.’s
Resp. p. 5, para. 7., d/e 109.) Plaintiff does assert that he
was not in possession of this information when it was found,
(Pl.’s Dec. para. 50), but that falls short of swearing, under
penalty of criminal perjury, that Plaintiff had never possessed
Page 7 of 15
the information and had not given the information to another
resident. In any event, even if Plaintiff averred that he never
had or distributed the spreadsheet, Plaintiff does not dispute
Defendant Clayton’s averment that Clayton relied on what the
resident told Clayton about the spreadsheet.
Plaintiff was placed in “temporary special management
status” on December 11 or 12, 2012, pending review by the
behavior committee. Temporary special management meant
that Plaintiff was generally prohibited from leaving his room
without permission. (Hankin Aff. para. 8.)
On December 14, 2012, the behavior committee met and
reviewed another incident report by Investigator Clayton.
Defendant Hankins was one of three members on the
committee (the other two have been voluntarily dismissed).
Plaintiff did not receive a copy of the incident report, which
recounted the materials found during the searches on
December 11, 2012, including the spreadsheet. (Incident
report, d/e 96-12, p. 1, undated and unsigned.) A notice of
violation was drafted at some point, but the notice did not
Page 8 of 15
specify a charge or the facts of which Plaintiff was accused.
(notice, 96-9, p. 1, undated and unsigned.)
At a meeting on December 14, 2012, the behavior
committee decided that Plaintiff should be placed on “special
management/investigative status.” (Hankins Aff. para. 17.)
“Special status” is for residents who are perceived as a danger
or face criminal charges. (Hankins Aff. para. 8.) According to
Plaintiff, he was not present at this meeting because he was
not taken to the meeting. (Pl.’s Dep. p. 16.) On special status,
an inmate is moved to a different room on a different wing,
without his property. When Plaintiff was initially placed on
special status, he was confined by himself without his
property; one hour per day he was allowed to sit and watch
television in the infirmary. (Pl.’s Dep. 19.)
Plaintiff appeared before the behavior committee on
December 18, 2014, and the committee decided to continue
Plaintiff’ special status pending the investigation. On
December 20, 2012, Plaintiff appeared before the committee
again, who again decided to keep Plaintiff on special status
“pending further investigation & possible criminal charges . .
Page 9 of 15
.”, but permitted Plaintiff to have “regular dayroom and shower
offerings.” (12/20/12 review, 96-8, p. 1.) After the December
20th meeting, Plaintiff was permitted in the dayroom for one
hour in the morning and one hour in the afternoon, but
Plaintiff had to wear handcuffs. (Pl.’s dep. pp. 20-21.)
On January 2, 2012, Plaintiff appeared before the
committee on a charge of “unauthorized property.” Without
explanation, the committee found Plaintiff guilty of
unauthorized property and imposed “close status” of 30 days
on Plaintiff. (d/e 109-6, p. 15.) On close status, a resident is
permitted to come out to the day room for three hours per day
total: one hour in the morning, afternoon, and evening.
(Hankins Aff. para. 21.) Showers are permitted every day, as
well as purchases from the commissary, one-hour visits in the
visiting room, the ability to make outgoing calls, and a threeday change of clothing. (Hankins Aff. para. 23.)
ANALYSIS
Plaintiff may exercise his First Amendment rights to the extent
consistent with the facility’s legitimate concerns, including safety
and security concerns. See Turner v. Safely, 482 U.S. 78, 89
Page 10 of 15
(1987)(setting forth legal standard for analyzing First Amendment
claims by prisoners).
Plaintiff argues that he had an unfettered First Amendment right
to possess the FOIA documents, which he had obtained through
legal means. That is not entirely accurate. Plaintiff retains only
those First Amendment rights that are consistent with the security
and safety of the staff and residents at Rushville. Documents that
Plaintiff may possess while free may be prohibited in the detention
setting, provided that a legitimate government interest supports
that restriction. Certainly the facility can protect its employees and
residents from harassment, intimidation, and the dissemination of
personal information that might pose a risk to safety.
However, the Court does not need to decide if Plaintiff had a
protected First Amendment right to possess and use these
particular FOIA documents. Even assuming that Plaintiff had that
right, Plaintiff’s retaliation claim still fails because Plaintiff’s
segregation pending investigation was justified by the discovery of
the spreadsheet. Possessing and distributing a spreadsheet with
residents’ birth dates and social security numbers is not a protected
First Amendment right. Even if Defendant Clayton was motivated
Page 11 of 15
in part by Plaintiff’s grievances and FOIA requests, Plaintiff would
have been placed in segregation and punished anyway, based on
Plaintiff’s distribution of the spreadsheet. Gomez v. Randle, 680
F.3d 859, 866 (7th Cir. 2012)(if a prima facie retaliation case is
shown and the defendants show that the adverse action would have
occurred anyway, then the plaintiff must show the government’s
reason for the adverse action is pretextual). The dissemination of
the spreadsheet is far from irrelevant, as Plaintiff argues.
Nor does Plaintiff have a retaliation claim based on Clayton’s
disciplinary report charging Plaintiff with making false statements.
Even if Clayton was motivated by retaliation for Plaintiff’s exercise
of his First Amendment rights, the disciplinary report itself was not
objectively serious enough to deter Plaintiff from exercising his First
Amendment rights. Gomez, 680 F.3d at 866 (plaintiff must show
that he suffered a deprivation that would likely deter First
Amendment activity in the future). Plaintiff’s only deprivation
caused by this disciplinary report was having to appear before the
behavior committee and receiving a warning. Plaintiff was not
deterred in any way from exercising his First Amendment rights; he
continued to file grievances about Clayton and others.
Page 12 of 15
Remaining is Plaintiff’s procedural due process claim based on
his placement in segregation from December 14, 2012, to January
2, 2013. Placement in segregation for a few days in order to
investigate does not generally trigger due process protections, but
here the segregation lasted about three weeks. Plaintiff was entitled
to adequate notice of the charges and the facts underlying those
charges and a meaningful opportunity to present a defense. See
Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002)(citations omitted).
Defendants do not contend that Plaintiff received this process, nor
does the record show that he did.
However, like the retaliation claim, Plaintiff must have evidence
that procedural due process protections might have made a
difference to the outcome. See Jones v. Cross, 637 F.3d 841, 84647 (7th Cir. 2011)(delay in prison disciplinary hearing harmless
where no prejudice suffered); Piggie v. Cotton, 344 F.3d 674, 678
(7th Cir. 2003)(applying harmless error analysis to refusal to call
witnesses in prison disciplinary hearings). Plaintiff does not
dispute that he gave the spreadsheet to another resident. Plaintiff’s
segregation pending a further investigation would have occurred
regardless of the procedural due process protections afforded to
Page 13 of 15
Plaintiff. As to Plaintiff’s punishment of “close status” for 30 days
after January 2, 2013, the restrictions on close status were not
severe enough to trigger procedural due process protections. Miller
v. Dobier, 634 F.3d 412 (7th Cir. 2011)(imposition of “close” status
at the Rushville Treatment and Detention Center did not trigger
procedural due process protections).
IT IS THEREFORE ORDERED:
1. Plaintiff’s motion for an order directing the facility to return to
him Plaintiff’s declaration, which was purportedly confiscated
in a shakedown is denied (120). However, the clerk is
directed to send Plaintiff a copy of the declaration
Plaintiff filed in this case (109-1, pp. 1-25.)
2. Plaintiff’s motion for the Court to try to recruit pro bono
counsel is denied (116.) Plaintiff’s filings in this case
demonstrate that he has a clear grasp of the facts relevant to
his claim and is knowledgeable about the law and legal
procedure. He has been able to obtain relevant information in
discovery, and he has significant experience litigating in
federal court. Additionally, his claims are relatively simple,
involving events of which he has personal knowledge. On this
Page 14 of 15
record, Plaintiff appears competent to proceed pro se in light
of the straightforward nature of his claims. Pruitt v. Mote, 503
F.3d 647, 654-55 (7th Cir. 2007).
3. Defendants’ motion for summary judgment is granted (d/e
95).
4. 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.
5. 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).
ENTER:
March 2, 2015
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 15 of 15
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?