Verser v. Gooding et al
Filing
97
SUMMARY JUDGMENT OPINION: Defendants' Partial Motion for Summary Judgment 88 is GRANTED in part and DENIED in part. Clerk is directed to terminate Defendants Funk, Gooding, Hodge, Tredway, Storm, and Strubhart. A final pretrial conference i s scheduled for May 19, 2017 at 10:00 a.m. The clerk is to issue a writ for the Plaintiff's participation in the video conference. The Plaintiff and Defendants shall appear in person at trial. A jury trial is scheduled for June 13, 2017 at 9:00 a.m. at the U.S. Courthouse in Springfield, Illinois. No writs to issue at this time. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 2/22/2017. (GL, ilcd)
E-FILED
Thursday, 23 February, 2017 10:45:32 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
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Plaintiff,
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v.
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DOUGLAS GOODING, et al.
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Defendants. )
GLENN VERSER,
14-3060
SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently incarcerated at
Stateville Correctional Center, brought the present lawsuit
pursuant to 42 U.S.C. § 1983 alleging claims for excessive force and
retaliation that arose from his incarceration at Western Illinois
Correctional Center and Lawrence Correctional Center. The matter
comes before this Court for ruling on the Defendants’ Partial Motion
for Summary Judgment. (Doc. 88). The motion is granted in part
and denied in part.
LEGAL STANDARD
Summary judgment should be granted “if the movant shows
that there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). All facts must be construed in the light most favorable to the
non-moving party, and all reasonable inferences must be drawn in
his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
The party moving for summary judgment must show the lack of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). In order to be a “genuine” issue, there must be
more than “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
FACTS
During the relevant time period, Plaintiff was incarcerated at
Western Illinois Correctional Center (“Western”) and Lawrence
Correctional Center (“Lawrence”). Defendant Funk was the transfer
coordinator for the Illinois Department of Corrections (“IDOC”), and
Defendant Gooding was a correctional officer at Western. The
remaining defendants were employed at Lawrence in the following
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capacities: Defendant Hodge was the Warden; Defendants Storm
and Tredway were Assistant Wardens; Defendant Strubhart was the
grievance officer; and Defendant Erickson was a correctional officer.
Plaintiff alleges a First Amendment retaliation claim against each of
these defendants.1
On December 7, 2012, Plaintiff arrived at Western Illinois
Correctional Center (“Western”) from another prison. On December
13, 2012, Plaintiff was transferred to Lawrence Correctional Center
(“Lawrence”). Plaintiff testified in his deposition that this transfer
was a “lateral” transfer, as opposed to a transfer to a more
restrictive prison for disciplinary reasons. Pl.’s Dep. 27:2-7 (“Q. You
indicated that both Western Illinois and Lawrence are Level 2
facilities. Is that the same as being a medium security facility? A.
Yes. Q. So this was a lateral transfer? A. Exactly.”). According to
documents Defendants provided, Western and Lawrence are both
“minimum or medium security” prisons that house inmates in any
grade classification with less than 20 years remaining until the
inmate’s release date. (Doc. 89-3 at 4).
1
Plaintiff also has a pending Eighth Amendment claim alleging excessive force against Defendant Erickson.
Defendant Erickson has not moved for summary judgment on this claim.
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Records show that Plaintiff’s 2012 transfer from Western was
related to comments Plaintiff made about one of Western’s female
employees in 2007. Specifically, Plaintiff filed a grievance that read
in relevant part: “For instance, [the employee] is an individual with
a history of frequenting bars, getting drunk, meeting strangers, and
later discovering that she is pregnant by the unknown.” (Doc. 89-3
at 8). Plaintiff’s discipline for these comments included a transfer
to Stateville Correctional Center (“Stateville”), a maximum security
prison. Pl.’s Dep. 9:19-24; see Illinois Department of Corrections,
All Facilities, available at: https://www.illinois.gov/idoc/facilities/
Pages/AllFacilities.aspx (last accessed Feb. 6, 2017). The records
indicate that this employee still worked at Western in 2012 when
Plaintiff returned. Accordingly, Plaintiff was transferred to
Lawrence.
Once at Lawrence, Plaintiff encountered issues with receiving
his property. Plaintiff testified that a non-defendant prison guard
confiscated several items, including a television that was later
cracked and cassette tapes to which Plaintiff attached sentimental
value. Pl.’s Dep. 22:7-23:24. Plaintiff testified that he cannot
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produce evidence that the guard was ordered by the Defendants to
take these items. Id.
Plaintiff’s complaints to prison administrators about these
items, and other perceived acts of retaliation, were so frequent that
Plaintiff likened his actions to those of a stalker or a broken record.
In response to those complaints, Defendant Hodge met with
Plaintiff, but did not resolve the issues to Plaintiff’s satisfaction.
Instead, the results of this meeting form the crux of Plaintiff’s
claims: “I voiced all my concerns, the retaliation. He promised to
look into them. My TV could have been saved. My tapes could have
been saved, and he did absolutely nothing. It wasn’t his action. It
was his inaction.” Pl.’s Dep. 33:20-24.
Defendant Tredway also listened to Plaintiff’s concerns. Id.
52:18-20 (“[I]f I would approach her on the walk, she would hear
what I had to say.”). When Plaintiff met with her, however, she did
not entertain Plaintiff’s complaints of retaliation, presumably the
same complaints Plaintiff made to Defendant Hodge and Defendant
Storm. Id. 51:10-16. Nonetheless, Plaintiff testified that he has no
evidence that Defendant Tredway knew about Plaintiff’s prior
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litigation. Id. 53:14-22. Plaintiff, however, testified that he
discussed his prior litigation with Defendant Storm. Id. 49:9-11.
According to Plaintiff, the inaction of prison officials was not
limited to high level administrators. Defendant Strubhart, the
grievance counselor, failed to resolve Plaintiff’s grievances in a
manner satisfactory to Plaintiff. Plaintiff asserts that the responses
were not “in conjunction with the administrative directives.” Id.
55:12-14.
As an example, Plaintiff testified that Defendant Strubhart
failed to investigate a grievance regarding the events that gave rise
to Plaintiff’s excessive force claims against Defendant Erickson. A
copy of the grievance discloses that Defendant Strubhart, or
Plaintiff’s counselor, obtained a statement from Defendant
Erickson, but later recommended denial of the grievance on the
grounds that Plaintiff’s claims could not be substantiated. (Doc.
89-4 at 21). Grievances in the record show that Defendant
Strubhart inquired with the relevant individual or department
within the prison each time Plaintiff filed a grievance—not all
grievances were denied. See (Doc. 89-4 at 2, 5, 9, 12, 16, 21, 25,
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31, 34, 37); id. at 28 (upholding Plaintiff’s grievance upon
investigation).
ANALYSIS
To prevail on a retaliation claim, the Plaintiff must show that
he engaged in activity protected by the First Amendment; he
suffered a deprivation that would likely deter First Amendment
activity in the future; and the First Amendment activity motivated
the decision to take retaliatory action. Bridges v. Gilbert, 557 F.3d
541, 553 (7th Cir. 2009). If Plaintiff can make a prima facie showing
that his protected activity was a “motivating factor” that caused the
alleged harm, then the burden shifts to the defendants to show that
the harm would have occurred anyway, despite the protected
activity. Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011).
Prior to arriving at Western and Lawrence, Plaintiff had filed
several lawsuits. These lawsuits, Plaintiff contends, are the sole
First Amendment activity at issue here. The parties do not dispute
that filing a lawsuit is a protected First Amendment activity.
Plaintiff does not dispute the actions underlying the discipline
he received in 2007, though he points out that one of the two
infractions then charged was later expunged. Even so, Defendants’
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proffered reason for Plaintiff’s 2012 transfer is supported by the
facts surrounding Plaintiff’s 2007 transfer—both transfers suggest
that prison officials desired to separate Plaintiff and the female
employee. Unlike 2007, however, where Plaintiff was transferred
from a medium security prison (Western) to a maximum security
prison (Stateville) for disciplinary reasons, the 2012 transfer
involved two medium security facilities. Plaintiff does not dispute
that the employee targeted by his 2007 comments still worked at
Western in 2012, nor does he suggest the absence of valid
penological interests in keeping him and the employee separated.
As to the confiscation of Plaintiff’s personal property at
Lawrence, Plaintiff testified that a non-defendant prison guard took
the property. He also testified that he cannot produce evidence that
Defendants Hodge, Tredway, and Storm (the Warden Defendants)
ordered the prison guard to do so. The Warden Defendants cannot
be held constitutionally liable under a theory of respondeat
superior, and, without evidence of personal involvement, Plaintiff
cannot prevail on his claims with regards to the initial confiscation.
See Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983
creates a cause of action based on personal liability and predicated
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upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional deprivation.”).
Nonetheless, Plaintiff testified that his retaliation claims are
based upon the Warden Defendants failure to remedy the alleged
ongoing acts of retaliation, which Plaintiff identified as the
confiscation of his personal property (television and cassette tapes)
and the lack of a dayroom at Lawrence. These deprivations,
however, must be viewed in the context of other privileges Plaintiff
was afforded. For example, Plaintiff was allowed to purchase a new
television while his old television remained the subject of a pending
grievance. The net result is that Plaintiff was deprived only of his
cassette tapes and of a dayroom in his housing unit.
The Court cannot determine how long Plaintiff’s grievance
regarding his property remained pending as the grievance does not
appear in the record. Plaintiff does not argue that the Warden
Defendants delayed resolution of Plaintiff’s grievances in any way,
nor has he provided any evidence as to why he was entitled to have
his complaints resolved outside the grievance process. At best,
Plaintiff has only shown that the Warden Defendants failed to
expedite resolution of a pending grievance—a scenario no different
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than if Plaintiff had filed an emergency grievance the warden later
deemed a non-emergency. See 20 Ill. Admin. Code. § 504.840. In
either scenario, Plaintiff’s remedy would lie in the normal grievance
process, which Plaintiff had already started.
Next, Plaintiff argues that Defendant Strubhart’s retaliatory
acts manifested themselves in the failure to follow administrative
rules when investigating a grievance. The grievances Defendants
produced show that Defendant Strubhart, or another prison official,
investigated each of Plaintiff’s grievances to the extent that was
necessary to resolve the grievances. The record indicates that one
of Plaintiff’s grievances was delayed, but Defendant Strubhart took
action in an attempt to remedy the problem. 2
The Court finds that the loss of cassette tapes and the lack of
a dayroom, absent any evidence that Plaintiff’s confinement was
otherwise more restrictive, is not a deprivation that would deter a
person of ordinary firmness from exercising First Amendment
rights. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (“It
would trivialize the First Amendment to hold that harassment for
2
Per Defendant Strubhart’s response written on the grievance: “Grievance was forwarded to ARB by this Grievance
Officer with explanation of lateness due to our error.” (Doc. 89-4 at 18). The date stamp on the grievance appears
to indicate this explanation was received by the ARB. Id.
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exercising the right of free speech was always actionable no matter
how unlikely to deter a person of ordinary firmness.”). In fact,
Plaintiff testified that despite the alleged acts of retaliation, he
would not be deterred from exercising his rights. Pl.’s Dep. 37:8-12
(“As long as the officers violate my constitutional rights, I’m going to
file lawsuits…I will be filing lawsuits on the way out the front door,
and I will be pursuing them after I get out.”). Therefore, the Court
finds that no reasonable juror could conclude that the Defendants
violated Plaintiff’s First Amendment rights.
Finally, Defendants did not present any undisputed material
facts as it relates to the claims of retaliation against Defendant
Erickson. Therefore, summary judgment on this claim is not
appropriate at this time. This case will proceed against Defendant
Erickson on Plaintiff’s claims of excessive force and retaliation.
IT IS THEREFORE ORDERED:
1) Defendants’ Partial Motion for Summary Judgment [88] is
GRANTED in part and DENIED in part. The motion is
granted with respect to Plaintiff’s retaliation claims
against Defendants Funk, Gooding, Hodge, Tredway,
Storm, and Strubhart, and these defendants are dismissed
with prejudice. The motion is denied as it relates to
Defendant Erickson. Clerk is directed to terminate
Defendants Funk, Gooding, Hodge, Tredway, Storm, and
Strubhart.
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2) A final pretrial conference is scheduled for
May 19, 2017 at 10:00 a.m. . The Plaintiff shall
appear by video conference and the attorney(s) shall
appear in person before the court sitting in Springfield,
Illinois. The clerk is to issue a writ for the Plaintiff’s
participation in the video conference.
3) The Court will send out proposed jury instructions and
intends to ask the standard voir dire questions published
on the Court’s website (http://www.ilcd.uscourts.gov/
court-info/local-rules-and-orders/judge_orders_rules).
By
May 12, 2017
, the parties shall file: 1) an
agreed proposed pretrial order; 2) alternate or additional
jury instructions (no duplicates); 3) motions in limine;
and, (4) additional voir dire questions (not duplicative of
the Court’s). All proposed instructions shall be clearly
marked, identifying the party, the number, and whether
the instruction is additional or alternate (i.e., Pl.'s 1,
additional; Pl.'s 2, alternate to Court's 3).
4) The Plaintiff and Defendants shall appear in person at
trial. Inmates incarcerated within the Illinois Department
of Corrections (IDOC) who are not parties to this case shall
appear by video conference and IDOC employees who are
not parties may also appear by video conference at trial.
Other nonparty witnesses may appear by video at the
court’s discretion. Therefore, the proposed pretrial order
must include: (1) the name, inmate number and place of
incarceration for each inmate to be called as a witness; (2)
the name and place of employment for each IDOC
employee to be called as a witness; and, (3) the names and
addresses of any witnesses who are not residents or
employees for whom a party seeks a trial subpoena. The
party seeking the subpoena must provide the necessary
witness and mileage fees pursuant to Federal Rule of Civil
Procedure 45.
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5) A jury trial is scheduled for June 13, 2017
at 9:00
a.m. at the U.S. Courthouse in Springfield, Illinois. No
writs to issue at this time.
ENTERED:
February 22, 2017.
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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