Pegues v. Orrill et al

Filing 58

OPINION: Defendants' motion for summary judgment is granted 44 . 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 3/5/2015. (GL, ilcd)

E-FILED

Thursday, 05 March, 2015 03:33:14 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
WALTER PEGUES,
Plaintiff,
v.
SHON ORRILL, et al.,
Defendants.

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13-CV-3200

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, pursues a First Amendment claim
for retaliation and an equal protection claim based on alleged race
discrimination. (8/19/13 Order.)
The case is now at the summary judgment stage. After
reviewing the parties’ submissions, the Court concludes that
summary judgment is warranted for Defendants. The alleged
retaliatory and discriminatory acts were simply not objectively
serious enough to be actionable under the United States
Constitution.

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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). “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, 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
The Court notes that Defendant Orrill denies all of Plaintiff’s
accusations, (Orrill Aff., d/e 46-1), but the Court must accept
Plaintiff’s version at the summary judgment stage, as to incidents of
which Plaintiff has personal knowledge.

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Plaintiff alleges in his Complaint that he has been subjected to
continuing harassment and retaliation for his grievances and
complaints. Specifically, Plaintiff filed two grievances in February,
2010, and one grievance in August, 2010, about unsanitary
conditions in the kitchen. Defendant Orrill was, according to
Plaintiff, routinely assigned to supervise the kitchen area.
Plaintiff contends that, on October 7, 2010, Defendant Orrill
made a “Nazi-style” salute in front of Plaintiff and said, “Sieg Heil.”
(Complaint, paras. 9-12; Pl.’s Dep. p. 14.) Plaintiff filed a grievance
about the incident and was interviewed by Defendant Clayton, but
no action was taken. (Pl.’s Dep. p. 16.)
On October 14, 2010, when Plaintiff stooped over to pick his
eyeglasses off the floor, Defendant Orrill “stomped” his “militarystyle” boot near Plaintiff’s hand, without touching Plaintiff’s hand or
eyeglasses. (Pl.’s Complaint, para. 17.).
Sometime in late October or early November, 2010, Defendant
Orrill, according to Plaintiff, called Plaintiff a nigger and made

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racially degrading comments about Plaintiff’s mother. (Pl.’s
Complaint para. 25; Pl.’s Dep. 63-64, 66-67.)1
In July of 2011, Plaintiff filed a lawsuit in the Central District
of Illinois, claiming a constitutionally inadequate diet. Pegues, et
al., v. Dredge, et al., 11-CV-3189 (C.D. Ill.).
Plaintiff contends that, on or around October 26, 2011,
Defendant Orrill came up to Plaintiff and said, “What’s happening
nigger?” Plaintiff got angry and then refused Orrill’s order for
Plaintiff to go to his room. Another officer came, and Plaintiff then
went to his room. According to Plaintiff, Orrill wrote Plaintiff a false
disciplinary report regarding this incident in order to cover up that
Orrill had provoked Plaintiff. (Pl.’s Dep. p. 68.) Plaintiff received a
verbal reprimand. Id. On or about the morning of November 24,
2011, Defendant Orrill pounded on Plaintiff’s door several times
while Plaintiff was sleeping. (Pl.’s Dep. pp. 64-65; Pl.’s Complaint,
para. 31.)
About two months later, in February of 2012, Plaintiff was in
the process of getting into a van to be transported to Cook County.
According to Plaintiff, Defendant Orrill grabbed Plaintiff by the arm.

1

 Plaintiff stated in his deposition that the correct year was 2010, not 2011. 

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Plaintiff protested and asked for someone else to help Plaintiff get in
the van besides Orrill. The officer in charge directed Orrill to step
out of the van, but instead Orrill poked Plaintiff in the chest with
his finger and told Plaintiff that if he did not like it, that Orrill
would put his “fist up” Plaintiff’s ass. (Pl.’s Dep. p. 70; Pl.’s
Complaint, para. 39.) A second order was given to Orrill to step out
of the van, and Orrill complied. (Pl.’s Dep. p. 71.)
About a year later, on February 11, 2013, Defendant Orrill
purportedly made a comment about Plaintiff’s rear-end while
gesturing sexually. (Pl.’s Dep. pp. 77-78; Pl.’s Complaint, para. 40.)
Four months later, in June, 2013, Officer Mankey and Defendant
Orrill came into the day room and said something to the effect of, “If
anyone has a problem with us, they should speak up if they are a
man.” (Complaint, para. 41; Pl.’s Dep. p. 79). According to
Plaintiff, in August, 2013, Orrill told Plaintiff that “if it was left up to
him he would shoot me in my black ass with his Remington 1100.”
(Pl.’s Dep. 32.)
Plaintiff filed grievances and wrote letters to persons inside
and outside the facility about all these purported incidents, but no
action was taken. According to Plaintiff, Defendant Clayton told
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Plaintiff to stop filing complaints and that Plaintiff’s complaints
would not be investigated and would go nowhere.
Plaintiff admits that Defendant Orrill has never physically
harmed Plaintiff or even touched Plaintiff other than the contact
with Plaintiff while Plaintiff was being put into the transport van in
February, 2012. (Pl.’s Dep. pp. 30, 83.)
At the time of Plaintiff’s deposition in February, 2014, Plaintiff
had not had problems with Orrill in the preceding couple of
months, and Orrill had been working in the unit once or twice per
week. (Pl.’s Dep. pp. 30-31.)
ANALYSIS
A prima facie First Amendment retaliation claim requires: (1)
protected First Amendment activity; (2) a sufficiently adverse action
motivated, at least in part, by the protected First Amendment
activity. Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012).
Plaintiff’s main theory is that Defendant Orrill was motived by
Plaintiff’s grievances about the kitchen and Plaintiff’s lawsuit about
the food. The Court sees no connection on this record. Orrill was
not named in any of the kitchen grievances or the lawsuit about the

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food, and the purported retaliatory events are not close in time to
the kitchen grievances and the other lawsuit.
However, Plaintiff’s complaints about Defendant Orrill’s
purported misconduct were also protected First Amendment
activities, and those activities could have motivated Defendant
Orrill, at least in part, looking at the record in the light most
favorable to Plaintiff.
Plaintiff’s evidence still falls short, though, because Defendant
Orrill’s actions were not sufficiently adverse to support a
constitutional retaliation claim. The adverse actions must have
been concrete and serious enough to deter a person of “ordinary
firmness” from exercising a First Amendment right in the future.
Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011).
Even considering all the purported adverse events as a whole, a
person of “ordinary firmness” would not have been deterred from
exercising First Amendment rights. The bulk of Orrill’s misconduct
(which Orrill categorically denies) were sporadic threats, derogatory
remarks, and sophomoric behavior—about 10 instances spread
widely over a span of nearly four years. This is not enough to
support a retaliation claim. See Antoine v. Uchtman, 2008 WL
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1875948 *2 (7th Cir. 2008)(not published in Federal
Reporter)(threats and racist statements did not state retaliation
claim). Defendant Orrill did purportedly write Plaintiff a false
disciplinary report, but Plaintiff received only a verbal reprimand,
which, like a verbal threat, is not adverse enough to support a
retaliation claim.
In sum, Plaintiff was not deterred by any of these incidents from
continuing to inform others about Orrill’s purported misconduct,
nor would any person of ordinary firmness be deterred. See, e.g.,
Turley v. Rednour, 555 Fed.Appx. 606 (7th Cir.
2014)(unpublished)(agreeing with Magistrate that “slamming a door
loudly would not deter a person of ordinary firmness from using
the grievance system. . . . Turley himself proved that point by
continuing to submit grievances after the day Lindenberg slammed
the gate).2
Further, Plaintiff’s equal protection claim rests solely on
Defendant Orrill’s alleged racial slurs, which alone are not
actionable under the Constitution.  Dobbey v. Illinois Department of
Corrections, 574 F.3d 443, 445-446 (7th Cir. 2009)(guard’s hanging

2

 The Court agrees with Defendants that claims based on the 2010 adverse events are barred by the two‐year 
statute of limitations, but the 2010 incidents are relevant to background and might also be relevant to motive. 

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of noose in front of black prisoners did not state a claim); DeWalt v.
Carter 224 F.3d 607, 612 (7th Cir. 2000)(“The use of racially
derogatory language, while unprofessional and deplorable, does not
violate the Constitution.”)
Plaintiff seeks to hold the other Defendants—Hougas, Simpson,
Clayton, and Hankins—liable for failing to take corrective action
after Plaintiff informed them of Orrill’s alleged misconduct. Yet, as
discussed above, Orrill’s alleged misconduct did not arise to a
constitutional violation. Additionally, Defendant Simpson cannot
be liable for purportedly failing to process Plaintiff’s grievances
because Plaintiff has no constitutional right to a grievance
procedure. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996). Similarly, the failure by Defendants Clayton, Hankins, or
Hougas to investigate Plaintiff’s complaints and refusal to take
action against Defendant Orrill are not constitutional violations.   
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009)(grievance
examiner's rejection of complaint as untimely without investigation
was not deliberate indifference); 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
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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 . . . .”).
IT IS ORDERED:
1. Defendants’ motion for summary judgment is granted (d/e 44).
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).
ENTER: March 5, 2015
FOR THE COURT:
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s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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