Schwab v. Kerr
Filing
19
SUMMARY JUDGMENT OPINION entered by Judge Sue E. Myerscough on 1/21/2016. Defendant's Motion for Summary Judgment, d/e 15 is GRANTED. Judgment to be entered in favor of the Defendant and against the Plaintiff. All pending motions are denied as moot, and this case is terminated, with the parties to bear their own costs. If the 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). If the Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee regardless of the outcome of the appeal. (MAS, ilcd)
E-FILED
Friday, 22 January, 2016 04:54:13 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DANNY RAYMOND SCHWAB,
Plaintiff,
v.
RYAN KERR, et al.
Defendant.
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14-3119
SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently civilly committed at
Rushville Treatment and Detention Facility, brought the present
lawsuit pursuant to 42 U.S.C. § 1983 alleging First Amendment
retaliation claims. The matter comes before this Court for ruling on
the Defendant’s Motion for Summary Judgment. (Doc. 15). The
motion is granted.
PRELIMINARY MATTERS
Defendant filed his motion for summary judgment on May 6,
2015. (Doc. 15). On May 7, 2015, the Clerk of Court sent Plaintiff
a Rule 56 Notice. (Doc. 17). The notice informed Plaintiff that he
had 21 days to respond to the Defendant’s motion and that failure
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to respond could result in dismissal of this action without trial. As
of the date of this Opinion, Plaintiff has not filed a response, nor
has he filed a motion seeking additional time to do so. Therefore,
the Court will consider the Defendants’ assertions of fact as
undisputed for purposes of this ruling. See FED. R. CIV. P. 56(e)(2)
(if a party fails to properly address another party’s assertion of fact,
the court may consider the fact undisputed for purposes of the
motion).
LEGAL STANDARD
Summary judgment should be granted “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). 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,
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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
Plaintiff is civilly committed at Rushville Treatment and
Detention Facility (“Rushville” or “TDF”) pursuant to the Illinois
Sexually Violent Persons Commitment Act. Defendant is employed
at the TDF as a Security Therapy Aide (“STA”). On May 20, 2013,
Plaintiff filed a lawsuit against Defendant and several other TDF
officials alleging claims different that those alleged here. See
Schwab v. Scott, No. 13-3145 (C.D. Ill. filed May 20, 2013)
(allegations of black mold on a mattress).
On February 4, 2014, Plaintiff was scheduled to use the
scanner at Rushville for purposes of scanning legal documents for
his pending litigation. Plaintiff was not allowed to go to the scanner
at the time he believed he was scheduled for an undisclosed reason.
Plaintiff waited in his housing unit from approximately 8 a.m. until
approximately 10:30 a.m., when he was called to use the legal
scanner. During that time, Defendant Kerr and two other STAs not
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named as defendants allegedly refused to inform Plaintiff when he
would be allowed to use the scanner and denied Plaintiff’s requests
to speak with a supervisor. Plaintiff was able to get his scanning
done that morning. Pl. Dep. 32:14-15 (“I left for the library and got
my scanning done.”).
On his way back from scanning his legal documents, Plaintiff
encountered Defendant Kerr in the hallway. According to Plaintiff,
Defendant Kerr told him “to back off…[Defendant Kerr then said
something] to the effect he was watching me, observing me.” Id.
37:6-8. When Plaintiff did not respond, Defendant Kerr allegedly
told Plaintiff that he (Plaintiff) was “being a bitchy pain in the ass,”
as well as calling Plaintiff “cry baby, a punk.” Id. 38:3-5.
Defendant Kerr concluded by stating that if Plaintiff continued to go
to court, he (Kerr) would “make [Plaintiff’s life] a living hell.” Id.
38:18-22. Plaintiff stated Defendant Kerr made these statements in
an intimidating manner.
Thereafter, Plaintiff had little interaction with Defendant Kerr.
According to Plaintiff’s deposition testimony, Defendant Kerr has
not approached, spoken to, or threatened Plaintiff since February 4,
2014. Id. 41:14-18.
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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 a plaintiff makes this showing, the
burden shifts to the defendants to show that they would have taken
the action despite the improper motive. Mays v. Springborn, 719
F.3d 631, 635 (7th Cir. 2013).
Defendant concedes that the facts, viewed in a light most
favorable to Plaintiff, show that Plaintiff has engaged in activity
protected by the First Amendment and that the protected activity
motivated the Defendant’s actions. The relevant question, then, is
whether Plaintiff suffered a deprivation serious enough to deter
future First Amendment activity as not every deprivation implicates
constitutional concern. See Bart v. Telford, 677 F.2d 622, 625 (7th
Cir. 1982) (“It would trivialize the First Amendment to hold that
harassment for exercising the right of free speech was always
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actionable no matter how unlikely to deter a person of ordinary
firmness.”).
Defendant Kerr’s actions on February 4, 2014 are the only
basis upon which Plaintiff could prevail as Plaintiff admitted in his
deposition that he had no contact with Defendant Kerr after that
date and the filing of this lawsuit. Defendant Kerr disputes
Plaintiff’s version of events, but nonetheless, cannot refute it for
lack of recollection. Thus, the Court will assume Plaintiff’s
testimony is true.
Even so, Plaintiff cannot show that Defendant Kerr’s actions
deterred him from the exercise of his First Amendment rights.
Plaintiff was not denied the ability to scan his legal documents—he
was only delayed for a few hours. In addition, Plaintiff was able to
file a grievance on the same day that Defendant Kerr allegedly
threatened him. Pl. Dep. 42:8-11. Following those threats, Plaintiff
had no contact with Defendant Kerr and Plaintiff does not offer any
evidence to show that he was otherwise deterred from exercising his
First Amendment rights. Therefore, the Court finds that a
reasonable juror could not conclude that Plaintiff’s First
Amendment rights were violated.
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IT IS THEREFORE ORDERED:
1) Defendant’s Motion for Summary Judgment [15] is
GRANTED. The clerk of the court is directed to enter
judgment in favor of Defendant and against Plaintiff. All
pending motions are denied as moot, and this case is
terminated, with the parties to bear their own costs.
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 MUST identify the issues
the Plaintiff will present on appeal to assist the court in
determining whether the appeal is taken in good faith. See
Fed. R. App. P. 24(a)(1)(c); see also Celske v Edwards, 164
F.3d 396, 398 (7th Cir. 1999)(an appellant should be given
an opportunity to submit a statement of his grounds for
appealing so that the district judge “can make a
reasonable assessment of the issue of good faith.”); Walker
v O’Brien, 216 F.3d 626, 632 (7th Cir. 2000)(providing that
a good faith appeal is an appeal that “a reasonable person
could suppose…has some merit” from a legal perspective).
If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee regardless of the outcome of
the appeal.
ENTERED:
January 21, 2016.
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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