Padilla et al v. Langley et al
Filing
206
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 4/27/2022: Defendants' motion for summary judgment, 185 , is granted as to plaintiff's access-to-courts claim and as to the defendants that plaintiff no longer pur sues. The motion is also granted as to plaintiff's retaliation claims against defendants Beyer, Hagerman, Hardy, Ingram, Malis, Pharis, and Zubik. The motion is denied as to plaintiff's retaliation claims against defendants Dawson and Epper son. The Clerk shall terminate defendants Coleman, Freeman, Dyslin, Corcoran, Giardina, Jackson, Jung-Oliver, Pilario, Beyer, Hagerman, Hardy, Ingram, Malis, Pharis, and Zubik from the caption, and correct it to read Olsson v. Dawson and Epperson. [For further detail see attached order.] Notices mailed. (psm, )
Case: 1:17-cv-03028 Document #: 206 Filed: 04/27/22 Page 1 of 43 PageID #:2102
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAUL OLSSON,
Plaintiff,
v.
No. 17 CV 3028
WAYNE BEYER, et al.,
Judge Manish S. Shah
Defendants.
MEMORANDUM OPINION AND ORDER
Paul Olsson has been found unfit to stand trial in a state criminal prosecution
and committed to the Elgin Mental Health Center. In this case, one of several he has
filed or tried to file over the years, he sued fourteen Elgin employees and former
employees, as well as three employees and former employees of the Illinois
Department of Human Services. He alleges that defendants denied him access to the
courts and retaliated against him for filing lawsuits and helping others file lawsuits.
Defendants moved for summary judgment on all claims. The motion is granted in
part and denied in part.
I.
Legal Standard
Summary judgment is proper when there is no genuine dispute of any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
I construe all facts and reasonable inferences in favor of Olsson, the nonmoving party.
Robertson v. Dep’t of Health Servs., 949 F.3d 371, 378 (7th Cir. 2020). But the moving
party is entitled to summary judgment when the nonmoving party fails to make “a
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sufficient showing on an essential element” of his case for which he has the burden of
proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
II.
Local Rule 56.1 and Evidentiary Issues
Local
Rule
56.1
“aims
to
make
summary-judgment
decisionmaking
manageable for courts.” Kreg Therapeutics, Inc. v. VitalGlo, Inc., 919 F.3d 405, 415
(7th Cir. 2019). The rule requires the moving party to file a statement of facts that
demonstrates its entitlement to judgment as a matter of law. Petty v. City of Chicago,
754 F.3d 416, 420 (7th Cir. 2014); N.D. Ill. Local R. 56.1(a)(3). The nonmoving party
must file a response to that statement and may provide a separate statement of
additional facts. Petty, 754 F.3d at 420; N.D. Ill. Local R. 56.1(b)(3). Both statements
of facts and statements of additional facts must consist of concise numbered
paragraphs, supported by citations to specific pages in the evidentiary record. See
N.D. Ill. Local R. 56.1(d)(1)–(2). Evidence supporting or opposing summary judgment
must be admissible if offered at trial, although depositions and other written
testimony can substitute for live testimony. Widmar v. Sun Chemical Corp., 772 F.3d
457, 460 (7th Cir. 2014).
Any fact not properly controverted is admitted. N.D. Ill. Local R. 56.1(e)(3);
Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009). If the responding
party disagrees with the other party’s fact, it must cite specific parts of the record
disputing the fact and “concisely explain how the cited material controverts the
asserted fact.” N.D. Ill. Local R. 56.1(e)(3). Facts that a party raises in a Local Rule
56.1 response that do not controvert the asserted fact, and that are not included in
the party’s statement of additional facts, are stricken. N.D. Ill. Local R. 56.1(e)(2). So
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are facts that are supported only by inadmissible evidence, provided the opposing
party objects on that basis. Widmar, 772 F.3d at 460. I also disregard legal arguments
in the statement of facts. See N.D. Ill. Local R. 56.1(d)(4).
Olsson did not abide by Local Rule 56.1 in his response to defendants’
statement of facts. In his denials of some of defendants’ facts, Olsson consistently
cites to his own statement of additional facts, instead of directly to the exhibits that
he says contradict defendants’ facts. See [197] ¶¶ 10, 11, 26, 68, 87, 88, 90, 96, 111,
112, 113, 114, 120, 123, 124, 127, 145, 174, 176.1 In one instance, plaintiff cites to the
entirety of his statement of additional facts (he seems to have accidentally left out
the paragraph number, despite including a paragraph symbol). [197] ¶ 124. In
another instance, plaintiff provides no citation at all. [197] ¶ 146. Although plaintiff’s
consistent citations to his additional statement of facts—as opposed to the record
directly—violate Local Rule 56.1, I consider them when the additional statement of
facts itself offers appropriate direct record citations.
Olsson also responds to some of defendants’ assertions by saying they are
“incomplete.” See [197] ¶¶ 87, 90, 111, 112, 113, 145. But saying something is
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except in the case of citations
to depositions, which use the deposition transcript’s original page number. The facts are
largely taken from Olsson’s response to defendants’ Local Rule 56.1 statement, [197], and
defendants’ response to Olsson’s statement of additional material facts, [205], where both the
asserted fact and the opposing party’s response are set forth in one document. Plaintiff says
many of defendants’ facts are inadmissible hearsay. Where I include or exclude those facts in
this opinion, I explain why. The parties dispute many facts, but the facts in many of those
disputes aren’t material. To the extent disputed facts are relevant, and the cited exhibits do
not directly contradict Olsson’s version of the facts, I include the facts in the light favorable
to Olsson.
1
3
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incomplete is not denying it, so those facts are admitted unless evidence directly
contradicting them is in plaintiff’s statement of additional facts.
Defendants support some assertions by citing to affidavits, interrogatory
responses, or deposition testimony. Plaintiff says some of these statements are
inadmissible hearsay. See, e.g., [197] ¶¶ 27, 147. But at the summary-judgment stage,
these documents are treated as live testimony. Widmar, 772 F.3d at 460. Still, some
of the affidavits, interrogatories, and depositions contain hearsay. See, e.g., [197]
¶ 147. When plaintiff objected to those statements, I disregard any inadmissible
hearsay.
Indeed, defendants’ statement of facts suffers from hearsay. Specifically,
defendants cite to hearsay that would have been admissible as records of a regularly
conducted activity or as recorded recollections had defendants included a qualified
witness’s statement authenticating the documents, as required by Federal Rules of
Evidence 803(5) and 803(6)(D). See [197] ¶¶ 120 (citing [187-34], email from Victoria
Ingram); 139 (citing [189-12], email from Ghouse Mohiuddin); 148 (citing [187-41],
letter from administrator to plaintiff’s lawyer). For the exhibits that are part of
plaintiff’s
clinical
chart
(those
Bates
Stamped
EMHC000075–005107,
EMHC005109–005179, EMHC005232–005238), defendants submitted a qualified
witness’s statement only when they filed their reply brief—that is, only after filing
their statement of facts. See [204] at 8–9, n.1.2 The statement was filed late, but I
Those exhibits are Exs. [189-1] (summary of plaintiff’s medical problems and relapse
prevention plan), [189-2] (clinical record facesheet and discharge summary from January
2008 discharge, including benefits application process documentation); [189-3] (same, from
2
4
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consider it because defendants have shown that the exhibits could be admitted at
trial. See Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 840 (7th Cir. 2014);
Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 420 (7th Cir. 2016).3
III.
Background
Paul Olsson is a civil detainee at Elgin Mental Health Center, where he has
lived since 2010 after being found unfit to stand trial on charges of predatory sexual
assault of a child and aggravated criminal sexual abuse. [197] ¶¶ 1, 2. Olsson was
first admitted to the center in 2007. [197] ¶ 4. Between then and 2010, he was
discharged and admitted to the center three times. [197] ¶¶ 4–6. Throughout his time
there, Olsson has lived in four different housing units. [197] ¶ 7. He was originally
assigned to the F Unit, then transferred to the Hartman Unit in 2010. [197] ¶¶ 41,
61. In 2015, Olsson was transferred to the all-male M Unit. [197] ¶ 78. He was
transferred back to Hartman Unit in 2017. [197] ¶ 62. (After this lawsuit was filed,
he was transferred to a fourth unit, a fact not relevant here. [197] ¶ 62.) During his
time at the center, Olsson has taken distance-learning classes, including paralegal
classes. [205] ¶ 42.
June 2008 discharge), [189-4] (same, from October 2008 discharge); [189-5] (January 2015
social work notes), [189-6] (psychiatrist note/transfer note), [189-7] (August 2015 progress
notes), [189-8] (psychiatrist note), [189-9] (May 2017 progress notes), [189-10] (property
evidence report detailing items allegedly confiscated from plaintiff’s room on July 20, 2017),
and [189-11] (June 2013 progress report/social work note).
The attorneys put time and effort into submitting lengthy briefs and voluminous exhibits.
But they risked sacrificing their clients’ arguments by failing to comply with Local Rule 56.1
and the Rules of Evidence (and, from the defendants, by submitting a Rule 902(11)
declaration which could have been deemed waived because it was filed in reply). Because the
clients should not be penalized for attorney error, I take a flexible approach to local-rule
enforcement here.
3
5
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A.
Olsson’s Assistance with Another Resident’s Legal Cases and
Olsson’s Housing Transfer
From 2010 to 2015, Olsson lived in Hartman Unit, where he was assigned a
psychiatrist named Richard Malis. [197] ¶¶ 62, 63. Plaintiff didn’t care for Dr. Malis,
[197] ¶ 64, and from 2010 to January 2015, repeatedly asked center staff, including
defendants Jeffrey Pharis (Acting Forensic Program Director or Forensic Program
Director from 2012 to 2016, [197] ¶ 36) and Daniel Hardy (Medical Director until
June 2017, [197] ¶ 24), to be assigned to a different psychiatrist. [205] ¶ 2. All of his
requests were met with either no response or an “I’ll get back to you.” [205] ¶ 2. In
2011, plaintiff met with Pharis and Malis about a grievance and complaint he filed.
[205] ¶ 3. In that meeting, plaintiff said that his treatment team’s relationship with
him was “adversarial in nature and [plaintiff] tries his best to keep things peaceful.”
[205] ¶ 4. In response, Malis asked plaintiff, “if he wants things to be peaceful, why
doesn’t he consider how many people against whom he has filed lawsuits.” [205] ¶ 4.
On more than one occasion, Malis tried to convince him to stop filing lawsuits and
helping other residents file lawsuits. [205] ¶ 1.4 In January 2015, plaintiff met with
Defendants note that this assertion is only backed by plaintiff’s own declaration. [205] ¶ 1.
But Olsson had personal knowledge of his interactions with Malis. See Fed. R. Evid. 602. His
declaration is itself evidence and does not require additional support. Fed. R. Civ. P. 56(c)(4);
see James v. Hale, 959 F.3d 307, 315 (7th Cir. 2020) (quotations and citation omitted) (A party
can use an affidavit to oppose a motion for summary judgment where “the affidavit (1) attests
to facts of which the affiant has personal knowledge; (2) sets out facts that would be
admissible in evidence; and (3) shows that the affiant or declarant is competent to testify on
the matters stated.”).
4
Defendants also say I should disregard plaintiff’s assertion about Malis’s threats because it
conflicts with plaintiff’s deposition testimony and his interrogatory responses. In his
interrogatory responses, plaintiff was asked to list each action or failure to act that he thinks
subjects Malis to liability. [205-2] at 32–33. He said nothing about Malis trying to convince
6
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Hardy about plaintiff’s request for a new psychiatrist. [197] ¶¶ 64–65 (citing [187-5]
and [189-5]).5 Hardy told him he could be assigned to a different psychiatrist only if
he changed housing units. [197] ¶ 65.6 Plaintiff said he wanted to remain on Hartman
Unit but continued to refuse to work with Dr. Malis. [197] ¶ 66.7 In April 2015, Dr.
Ulsa Kartan replaced Malis as plaintiff’s treating psychiatrist, [205] ¶ 5, but because
him to stop filing grievances and lawsuits and assisting other residents with legal issues.
[205-2] at 32–33. Plaintiff said in his deposition that Malis “made inappropriate threats
toward me.” [187-5] at 86:23–24. Asked to expand on the threats Malis allegedly made
against him, plaintiff said, “I believe he said that if I was going to be involved with [Dr.
Mannix, plaintiff’s outside psychiatrist] that there would be—there would be consequences.”
[187-5] at 87:6–15. These responses are not inconsistent with his later assertion that Malis
tried to convince him to stop filing lawsuits and helping other residents, so I consider the
declaration.
This is according to plaintiff’s own deposition testimony, [187-5] at 86:11–18, and a January
2015 social worker log, [189-5], both of which plaintiff says are inadmissible hearsay. His
testimony is admissible as the statement of a party opponent. Fed. R. Evid. 801(d)(2)(A). The
social work log is admissible as a record of a regularly conducted activity. Fed. R. Evid. 803(6);
see [205-3] (declaration of records custodian).
5
In support of these assertions, defendants cite to the entire social work log without giving a
page number, [197] ¶¶ 64–65, a violation of Local Rule 56.1, so I’m left to guess which
statement they’re relying on. (Two pages in the exhibit are indecipherable. See [189-5] at 4–
5.) I assume defendants rely on two entries. One, a January 9, 2015, entry which reads,
“[Plaintiff] was willing to meet with Dr. Hardy to discuss his request for a new psychiatrist.”
[189-5] at 2. The other, a January 13, 2015, entry that reads, “[Plaintiff] said Dr. Hardy gave
him a choice of getting a new doctor but leaving the unit, versus staying on this unit and
remaining with Dr. Malis. He said he chose to remain on the Hartman unit and was offering
other ideas to how to [sic] conduct the staffing.” [189-5] at 2. Plaintiff objects to these
statements as inadmissible hearsay. [197] ¶¶ 64–65. The log is admissible as the record of a
regularly conducted activity. The first entry is admissible as a party-opponent statement.
Hardy’s statement is admissible because, in this context, it is not offered for the truth of the
matter. Instead, it is offered to show what led plaintiff to say that he was choosing to remain
on Hartman Unit.
6
In support, defendants cite to the social worker log, [189-5], which is admissible for the
reasons explained above. Defendants also cite to a psychiatrist’s note from August 19, 2015,
which states, in relevant part, “[Patient] has been refusing to meet [indecipherable] for a long
time. The case was transferred at pt request to have female psychiatrist that he is willing to
work with. Since pt has issues with authority…he refused to cooperate with Dr. Malis.”
[189-6] at 2. This is a statement made for medical treatment and describing Olsson’s medical
history, and therefore admissible under Federal Rule of Evidence 803(4).
7
7
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Malis remained part of the Hartman treatment team, he continued to see Olsson
daily. [197] ¶ 81.
While Olsson resided on Hartman Unit, three female residents accused him of
inappropriate sexual behavior. [197] ¶ 67. Plaintiff admits that the women accused
him of inappropriate sexual behavior, [197] ¶ 67, but says the accusations are false,
[205] ¶ 6. Based on those allegations, Dr. Malis recommended that plaintiff be
transferred to the all-male M Unit. [197] ¶ 68.
During his time on Hartman, Olsson also came to know another resident
named Abby Grason. [197] ¶ 69. Between 2013 and 2015, he helped Grason prepare
and submit grievances about her medical treatment at the center. [197] ¶ 70.
Specifically, in February 2015, he began helping Grason with a medical-treatment
lawsuit she wanted to file against defendants Pharis (the program director), Hardy
(the medical director), Malis (one of plaintiff’s psychiatrists), Wayne Beyer
(Consumer Support Specialist, [197] ¶ 8), Debbie Giardina (social worker until May
1, 2017, [197] ¶ 21), Maureen Jung-Oliver (social worker, [197] ¶ 31), Jeffrey Pilario
(Nurse Manager of the Hartman Unit, [197] ¶ 37), and Daniel Dyslin (Senior Deputy
General Counsel for the Illinois Department of Human Services, [197] ¶ 15). [205]
¶ 7. In February or March 2015, Grason told defendant Beyer that Olsson was
helping her draft the complaint for that suit. [205] ¶ 8. In June 2015, she told her
8
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treatment team about her plans to file the suit. [205] ¶ 8. In July or August, she told
her psychiatrist. [205] ¶ 8.8
In July 2015, in a meeting with defendants Pharis, Hardy, Pilario, Giardina,
Jung-Oliver, and two others, plaintiff was told he would be transferred to M unit.
[197] ¶¶ 73–74. Plaintiff asked why he was being transferred, but Hardy simply told
him that it was a decision from “Springfield.” [197] ¶ 75. Plaintiff was transferred in
mid-August 2015. [197] ¶ 78. After the transfer, some center staff members told him
he was moved because he gave Grason legal help. [197] ¶ 83. On the same day Olsson
was transferred from Hartman Unit, Grason was also transferred from Hartman
Unit. [197] ¶ 85.
In 2016, after the transfer, Grason asked Olsson to help her with a Social
Security issue. [197] ¶ 86. Her application for Social Security benefits had been
denied, and Olsson agreed to help her appeal the denial. [197] ¶¶ 87–89.9 Olsson did
not use the library for any legal research related to Grason’s appeal. [197] ¶ 90.10
Though Olsson and Grason were on different housing units at the time, they were
Plaintiff’s statement of additional facts says Grason told her psychiatrist in July, which
defendants do not dispute. [205] ¶ 8. Defendants’ statement of facts says plaintiff testified
that Grason told her psychiatrist in August (which plaintiff does not dispute), and that
plaintiff knew this because he overheard a conversation between them in the center’s dining
room. [197] ¶¶ 71, 72.
8
Whether Olsson helped Grason with an application for redetermination of the initial denial
or whether Grason had already filed an application for redetermination by the time she asked
Olsson for help, [197] ¶¶ 87, 88; [205] ¶ 15, is immaterial.
9
Plaintiff denies this assertion on the grounds that it is incomplete. [197] ¶ 90. He explains
that he did not use the library because the “library did not have any relevant information to
assist in his representation of [Grason].” [205] ¶ 10. This does not controvert defendants’
assertion, which is admitted.
10
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able to speak by using the units’ phones. [197] ¶ 95. Grason told her social worker
that she asked plaintiff to represent her and she wanted him to review her chart in
preparation for the hearing. [205] ¶ 16. Plaintiff used his personal digital assistant
to keep notes on Grason’s case, [205] ¶ 17, as he had done for legal matters involving
other patients, [205] ¶ 14. In 2017, plaintiff served as Grason’s representative in her
Social Security hearing (conducted by phone); Grason won the appeal. [197] ¶¶ 96,
97; [205] ¶ 11, 18.
Either the day of the hearing or the day after, approximately five center staff
members told Olsson that the administration was “displeased” with him representing
Grason. [197] ¶ 99. Plaintiff could not say who comprised the “administration.” [197]
¶ 100. Plaintiff could only remember the identity of two of the five staff members—
defendant Wayne Beyer and someone named Chris. [197] ¶ 99. Plaintiff testified that
Beyer told him that he was “very adamantly against advocacy in any way, shape or
form” (plaintiff’s words). [197] ¶ 101.
B.
Confiscation of Olsson’s Personal Digital Assistant
In 2016, plaintiff’s father emailed defendant Pharis a link to the specifications
of a personal digital assistant plaintiff had requested. [205] ¶ 12. Shortly after, Pharis
approved the PDA, knowing that with an add-on microphone, it would have voicerecording capabilities. [205] ¶ 13. (Defendants do not allege that plaintiff requested
or possessed an add-on microphone. [205] ¶ 13.) Plaintiff openly used the PDA to take
notes on his own case and on legal matters for other patients. [205] ¶ 14. According
10
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to plaintiff’s clinical chart/disciplinary log, in May 2017, he was seen using his PDA
to either text or email security. [197] ¶ 106 (citing [189-9]).11
Later that month, security personnel searched plaintiff’s room and confiscated
the PDA, [197] ¶ 104, without explanation, [205] ¶ 20.12 The PDA was passwordprotected. [197] ¶ 107. Plaintiff said Grason’s “confidential information” was on the
PDA, and he could not reveal the password unless Grason provided permission or
signed a release. [197] ¶ 107. The state administrative code, included in the center’s
informational booklet for patients, families, and significant others, prohibits patients
from storing information directly related to other patients or staff in their computers
or “related equipment.” [197] ¶ 109. The informational booklet also says that
computers or related equipment that are used inappropriately will be confiscated.
[197] ¶ 110. In June 2017, plaintiff’s father sent an email to defendant Victoria
Ingram (Acting Forensic Treatment Program Director from January to July 2017,
[205] ¶ 69), attaching a grievance memo by Olsson. See [205] ¶ 21 (citing [198-1] at
12). (The grievance memo is not included in plaintiff’s exhibits.) Given Ingram’s
response two weeks later, I assume the grievance was about confiscating the PDA.
The clinical chart is admissible as a record of a regularly conducted activity. Fed. R. Evid.
803(6).
11
Defendants dispute that the PDA was confiscated without explanation and instead claim
that it was confiscated because plaintiff used it to text or email. [205] ¶ 20. Defendants’ point
isn’t responsive to plaintiff’s assertion (which is that there was no explanation, not no reason).
12
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Ingram said, “The PDA is considered contraband due to the properties of recording
capability.” [198-1] at 12.13
C.
Olsson’s Role on the Consumer Council and Confiscation of
Legal Complaints
In 2015, plaintiff began participating in the center’s consumer council, [205]
¶ 22, a patient council “intended to empower patients to take personal responsibility
toward their own recovery.” [197] ¶ 111. People serving on the consumer council can
be removed for “inability to meet the criteria for patient participation, conduct that
is detrimental to the purpose of the Council, or other relevant clinical or behavioral
considerations (such as those who earn multiple or serious Loss of Privileges[]).”14
[197] ¶ 112. The removal criteria come from a center policy issued in August 2017,
[205] ¶ 23, which was after plaintiff was removed from the council, [205] ¶ 39, some
of his electronics were confiscated, [205] ¶ 35, and defendant Brian Dawson (the
The parties interpret this in different ways. Plaintiff says Ingram was saying that the PDA
was confiscated because it was contraband. [205] ¶ 21. Defendants say the email only says
that the PDA was contraband; it doesn’t say that it was confiscated because it was
contraband. [205] ¶ 21. Under a hyper-technical reading, defendants are correct. But if the
grievance memo did not challenge the PDA confiscation, then Ingram’s response would be a
non-sequitur. At this stage, a reasonable inference is that the grievance memo challenged the
PDA confiscation, and that Ingram’s email meant, in effect, that the PDA was confiscated
because it was contraband.
13
14
The criteria for patient participation are as follows, [197] ¶ 113 (citing [187-32] at 3):
[A]bility to participate in council meetings for 60 minutes, be alert, be assertive on patients’
rights and concerns, yet work with FTP Admin in a professional and collaborative manner and
be solution-focused; (2) members should be actively working on their own recovery and be
prepared to serve as role models/peer supports; and (3) members must be respectful of the
input of all Council members and be “team players” who represent the concerns and needs of
all patients.”
12
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hospital administrator, [197] ¶ 14) ordered the removal of legal documents that
plaintiff posted around the facility, [205] ¶ 30.15
Plaintiff was elected president of the council in November 2016 and reelected
in May 2017. [205] ¶ 22. In a June 2017 council meeting, plaintiff distributed the
complaints from two lawsuits he’d filed against center staff. [205] ¶ 25.16 Plaintiff also
distributed a cover letter.17 He asked the council members to post copies of the
complaints on bulletin boards in the residential units. [197] ¶ 115. After the meeting,
defendant Beyer told plaintiff and another council member (who was a plaintiff in
both suits), “If you know what’s good for you, you would back off on promoting these
complaints.” [205] ¶ 29 (citing [198-1] at 24, Declaration of Sean Gunderson). Beyer
also said that if Olsson and the other council member continued to file lawsuits, it
Plaintiff says that any assertions based on the August 2017 policy are incomplete and
irrelevant, [197] ¶ 111, because of when the policy was issued, [205] ¶ 23. I assume plaintiff’s
point is that he wasn’t on notice about what behavior would lead to removal from the council,
and that defendants implemented the policy as a post-hoc pretext for removing him. See [205]
¶ 24. But the date on which the policy was issued is not responsive to defendant’s assertions
in paragraphs 111 and 112, and so is admitted. How the timing of the policy affects the legal
analysis is a separate issue that I ultimately do not need to address because plaintiff offers
no evidence that any of the defendants had the authority or made the decision to remove him
from the council. (Plaintiff only says that Beyer told him he’d been removed. [205] ¶ 39.)
15
Those suits were Nadzhafaliyev v. Hardy, 17-cv-4469 (N.D. Ill. June 13, 2017) (alleging
that the center’s disciplinary policies violated due process, Nadzhafaliyev, 403 F.Supp.3d 663,
664 (N.D. Ill. 2019)) and this suit. Olsson filed this suit in April 2017, [1], but filed an
amended complaint in March 2019, where he added retaliation claims related to filing the
initial complaint. [82].
16
Plaintiff says that the cover letter explained why the lawsuits were relevant to center
patients and how a patient could join the class of either suit. [205] ¶ 27. But, as defendants
note, this inaccurately characterizes the letter. The letter does not mention the suits or
joining a class. See [198-1] at 78–79. It instead says that many center residents were not
informed that they were entitled to a jury determination on whether they met the criteria for
involuntary commitment. It explains that if residents didn’t waive that right knowingly and
intelligently, they are entitled to have a jury reexamine their confinement. [198-1] at 78–79.
17
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would not be beneficial for them. [205] ¶ 29. Beyer asked Olsson and the other council
member if they were trying to “stoke a riot.” [205] ¶ 29.18 None of the named
defendants ever communicated to plaintiff that they were upset with him for filing
the lawsuits or for distributing copies of the complaints among other residents. [197]
¶ 119 (citing [187-6] at 162:22–24, 163:1–5).
In interrogatory responses, Dawson testified that he ordered the removal of
the “legal documents posted by plaintiff around the EMHC facility” because they
contained unspecified “personal and legal information of other residents.” [205]
¶ 30.19 Around July 21, 2017, Beyer told plaintiff that he had been placed on unit
restriction and removed as president of the Consumer Council because he had
violated the center’s electronics policy. [205] ¶ 39.
Defendants deny that Beyer said these things but cite to nothing in support of that denial.
[205] ¶ 29. Instead, defendants say the assertions are immaterial for three reasons. [204] at
15–16. First, Olsson admitted that he doesn’t know whether any of the complaints were
actually posted. [204] at 15–16. Second, Olsson admits that he doesn’t know whether any of
the complaints were actually removed. [204] at 16. And third, Dawson gave the instruction
to remove the complaints (not Beyer), and there is no evidence that Dawson expressed
animus toward plaintiff. [204] at 16. But Dawson himself stated in interrogatory responses
that legal documents were posted around the facility, [205] ¶ 30, and evidence of Beyer’s
intent is relevant to the claims against him.
18
An email from Ingram instructing staff to confiscate the complaint says, “Mr. Dawson has
issues with confidentiality/HIPAA.” [187-34]. The email is hearsay if offered by defendants
for the truth of the assertion that Dawson had “confidentiality/HIPAA” concerns, and I do
not consider it as evidence of Dawson’s concerns. Dawson’s interrogatory answer—that he
was concerned because the complaints contained personal and legal information of other
residents—is admissible, however.
19
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D.
Confiscating Olsson’s Other Electronics
On July 13, 2017, staff searched plaintiff’s room as part of a semi-annual
inventory search. [205] ¶ 34.20 During the search, staff found a computer tower and
monitor, an inoperable computer tower, two flash drives, an external hard drive, an
X-Box game console with two controllers, a battery-operated radio clock, an iPod, a
Walkman radio, and a portable DVD player. [205] ¶ 34. Staff didn’t confiscate any
items. [205] ¶ 34. On July 20, staff searched plaintiff’s room again. [205] ¶ 35; [197]
¶ 123; [187-36] at 4.21 That search took place an hour after plaintiff returned from a
meeting with an outside legal advocacy group.22 The meeting was about the lawsuits
plaintiff filed against center staff. [205] ¶ 35.
Defendants say no semi-annual inventory search took place that day and note that
plaintiff’s only evidence is his own declaration, [205] ¶ 34, which defendants’ security
communications logs contradict, [205-1]. As I explain above, it’s not inherently a problem that
plaintiff’s only evidence is his own declaration. Assuming, though, that defendants are
challenging the statement because they think plaintiff has no personal knowledge of whether
the search was a semi-annual inventory search, I disagree. It is reasonable to think that a
resident of 7+ years would know when these inventory searches happened or would be able
to identify one when he saw it.
20
Defendants claim this was a facility-wide sweep. [197] ¶¶ 122–23. Plaintiff denies this
because he didn’t see other residents’ rooms searched. [205] ¶ 35. Defendants respond that
whether plaintiff saw other rooms being searched “is not determinative of” whether staff
searched other rooms. [205] ¶ 35. That is true, but plaintiff’s observation is still admissible,
and the fact that plaintiff didn’t see other rooms searched makes it more likely that other
rooms weren’t searched and that there was not a facility-wide sweep. The security
department report recounting the search and confiscation of various items is admissible
under the public-records exception. Fed. R. Evid. 803(8).
21
Defendants “note that no evidence of this meeting [with the legal advocacy group] has been
offered,” but don’t explicitly dispute that the meeting took place. [205] ¶ 35. Regardless,
plaintiff has offered evidence by citing his own declaration. [205] ¶ 35 (citing [200] ¶ 20).
Plaintiff says in his statement of facts that staff were already searching his room when he
got back from the meeting. [205] ¶ 35. But as defendants note, this contradicts plaintiff’s
testimony, in which he says that staff arrived an hour after the meeting. [187-6] at 181:1–6.
I rely on plaintiff’s testimony instead of his statement of additional facts.
22
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At the time of the search, Olsson had three corded electronic devices: the two
personal computers and an X-Box game console. [205] ¶ 36. Olsson also had the
following non-corded devices: an external hard drive, a Coby music player, four flash
drives, an iPod Nano, a USB card reader, two Sandisks, and a Sandisk adapter. [197]
¶ 123 (citing [189-10], EMHC Property/Evidence Report, dated July 20, 2017).
When defendant William Epperson, chief of security, and another staff
member reviewed the items confiscated from Olsson’s room, they found a flash drive
and Wi-Fi hot spot USB tucked into the bottom of the computer. [197] ¶ 126 (citing
[187-10] at 14:13–20, 38:9–25 (Epperson deposition)); [187-36] at 3 (security
department report with pictures of confiscated items).23 Epperson testified that he
saw images of young boys in their underwear on plaintiff’s computer. [187-10] at
37:2–3. He said he tried to review the contents of the flash drive hidden in the
computer but could not open it. [205] ¶ 40. The incident was referred to the Illinois
State Police, [197] ¶ 127,24 and the State Police reported discovering anime child
pornography in the items. [187-10] at 37:5–9. Plaintiff says that he did not place the
Wi-Fi hotspot on his computer and did not know it was there. [205] ¶ 41. He also says
he did not possess anime child pornography on the confiscated computers. [205] ¶ 41.
Epperson’s testimony is not hearsay. [187-10] at 38:14–25. He is describing something he
personally observed, not something someone said. The security department report, [187-36]
at 3, is also admissible under the public-records exception because it sets out a “matter
observed [by a public official] while under a legal duty to report.” Fed. R. Evid. 803(8).
23
Plaintiff denies this because it “fails to accurately represent the record.” [197] ¶ 127. He
then cites to an assertion in his statement of additional facts that does not dispute
defendants’ assertion that the matter was referred to the state police. I disregard plaintiff’s
denial.
24
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(He was not charged with possession of child pornography. [205] ¶ 41; see also
Ashcroft v. Free Speech Coal., 535 U.S. 234, 250–51 (2002).)
Patients are not allowed to have computers with built-in wireless systems or
external wireless internet cards, as explained in the Patient/Family/Significant Other
Information Booklet that was given to plaintiff when he was admitted to the center.
[197] ¶ 128. Patients know that these items are contraband because a copy of the
center’s contraband policy is posted in every room. [197] ¶ 130. On July 21, Beyer told
plaintiff in a phone call that he had been placed on unit restriction and removed as
president of the Consumer Council. [197] ¶ 132; [205] ¶ 39. This was three months
after plaintiff’s April 2017 lawsuit and one month after his June 2017 lawsuit. [197]
¶ 133.
E.
Removing Olsson from the Distance-Learning Program and
Prohibiting His Computer Use
Center residents can enroll in classes at outside educational institutions. [197]
¶ 134. If those classes require computer use, patients can use center computers for
coursework. [197] ¶ 134. Distance-learning participants meet in the computer lab.
[205] ¶ 42. Plaintiff first enrolled in the program in May 2012. [197] ¶ 136. He was
removed from the program in 2013 because he used his personal computer to access
the internet and “download sexually inappropriate materials and/or hide such files
from the treatment team.” [197] ¶ 137 (citing [189-11]).25 Plaintiff was allowed to
rejoin the program in April 2016. [197] ¶ 139.
Plaintiff denies this on inadmissible-hearsay grounds, but doesn’t deny it for any other
reason (e.g., that it isn’t true). The assertion comes from the monthly social work notes that
25
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When a resident joins the distance-learning program, an instructor reviews the
rules and policies of the program with the resident, who then must sign a form
promising that he will only use the distance-learning computers for educational
purposes. [197] ¶ 140. When he re-enrolled, Olsson signed an Internet Access
Certificate of Understanding. [197] ¶ 141. The certificate says that the signer
“accept[s] that any violation of the Internet usage policy may result in financial
liability on my part and/or disciplinary action” and acknowledges that the center’s
information management office is “authorized to monitor all Internet access,
searches, downloads, sites visited, etc. and the user [] is held responsible for any
nonbusiness/inappropriate Internet activities.” [197] ¶ 141. If a resident violates the
rules and regulation laid out in that form, he is terminated from the program. [197]
¶ 142.
In 2017, plaintiff took a class in paralegal studies. [205] ¶ 42.26 Distancelearning coordinator Helen Johnson often asked plaintiff to help other residents with
their computer assignments. [205] ¶ 43. Sometimes, when the computers had
technical problems, Johnson asked plaintiff to help address the problem. [205] ¶ 43.
On several occasions and with Johnson’s approval, plaintiff accessed the DOS
command to resolve technical problems for fellow residents. [205] ¶ 44. Plaintiff never
are admissible as records of a regularly conducted activity. [189-11] at 2; Fed. R. Evid.
803(6)(b)(4). But the section of the notes that says Dr. Michael Bednarz recommended
plaintiff use a public computer for distance learning, instead of a private one, is inadmissible
hearsay. [189-11].
Defendants dispute this assertion because, they say, it contradicts plaintiff’s testimony
that he took paralegal classes in 2010. [205] ¶ 42. This is not responsive—plaintiff could have
taken paralegal classes in 2010 and 2017—and so is admitted.
26
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entered the DOS command without Johnson requesting that he do so. [205] ¶ 44.27
Another resident in the distance-learning program said in a declaration that Johnson
also asked him to access the DOS program. [205] ¶ 45. Under the Illinois
administrative code, “if an individual [in a state mental health facility] is approved
to use a computer, software that is approved includes the following: A) Operating
system (i.e., DOS, Windows, OS2.” [205] ¶ 52.28 Epperson testified that he believed
that a patient who accesses DOS can “mess with [the center’s] server,” but that he is
not an information services officer and wasn’t certain that his belief was accurate.
[205] ¶ 46 (citing [187-10] at 81:16–22).
According to a security department report signed by Epperson and dated
September 13, 2017, distance-learning coordinator Heather Johnson saw Olsson pull
up a DOS program and asked him to close the window immediately. [187-36] at 2.
(According to the report, this happened on September 6, 2017. [187-36] at 2. But
plaintiff says in his statement of additional facts that it happened September 13, and
defendants don’t dispute the date. [205] ¶ 47.) The next day (September 7, according
Defendants dispute the statement because, they say, they “submitted evidence that using
an EMHC computer to access a DOS program window is grounds for termination” from the
distance-learning program. [205] ¶ 44. Defendants do not cite to that evidence. Regardless,
it is not responsive to plaintiff’s claim that Johnson gave him permission to access a DOS.
Nor is defendants’ assertion that Johnson told her supervisor of the incident. [205] ¶ 44. It is
possible that Johnson gave plaintiff permission to use DOS, even though using DOS was not
allowed, and then reported his DOS use to her supervisor.
27
The parties disagree about what this language means. Plaintiff says it means that
individuals allowed to use computers are allowed to access the DOS program. [205] ¶ 52.
Defendants say that the language doesn’t indicate “that [center] residents who are permitted
to use computers may access or alter the computer operating system.” [205] ¶ 52. For present
purposes, the scope of the code’s authorization to use or access DOS is immaterial.
28
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to the report), Johnson completed a security report and reported the incident to her
supervisor. [187-36] at 2.29
On September 13, 2017, plaintiff was in the computer lab working on an
assignment when defendants Epperson and staff member Comissa Hamilton entered
the lab and told Olsson his distance-learning privileges were suspended. [205] ¶ 47.
Epperson said that a written explanation would be provided, but it never was. [205]
¶ 47.
According to defendant Ingram, who was not involved in the decision to remove
plaintiff from the program, plaintiff was removed because he used the class time and
internet access provided through the program to “access websites and materials” he
wasn’t allowed to access. [197] ¶ 27 (citing [187-15] ¶ 3).30 Plaintiff was later banned
Plaintiff objects to the report as inadmissible hearsay. [197] ¶¶ 143–44. The report itself is
admissible under the public-records exception. Fed. R. Evid. 803(8). It sets out a “matter
observed [by a public official] while under a legal duty to report.” It doesn’t matter that
Epperson himself didn’t observe plaintiff access DOS, and instead relied on Johnson’s
statements. “Rule 803(8) is a multi-level exception” because “the bureaucrat who fills out a
governmental form usually incorporates information furnished by others.” Matter of Oil Spill
by Amoco Cadiz Off Coast of France on March 16, 1978, 954 F.2d 1279, 1308 (7th Cir. 1992).
29
This is not hearsay, contrary to plaintiff’s argument, [197] ¶ 27, because Ingram did not
introduce any out-of-court statement. She simply said she was aware of a fact but doesn’t
explain how she came to know it. [187-15] ¶ 3.
30
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from using any state computer. [197] ¶ 147.31 The Illinois Department of Human
Services also discontinued plaintiff’s internet access.[197] ¶ 148.32
On the same day that plaintiff’s distance-learning privileges were suspended,
Epperson contacted the information management office, asking them to review the
computer plaintiff was using. [205] ¶ 48. Shortly before the center suspended
plaintiff’s distance-learning privileges, internet access, and computer use, plaintiff
had filed three grievances: two on September 1 and one on September 5. [205] ¶ 49.
In the first grievance, plaintiff asked why the center had not completed its review of
the electronic items confiscated six weeks earlier. [205] ¶ 50. In the second, he alleged
that the center was violating a policy that requires it to respond to grievances within
five days. [205] ¶ 50. Defendant Ingram returned both grievances as “unable to
resolve because of ‘Administrative decision.’” [205] ¶ 50. In the third grievance,
plaintiff complained that his father was barred from bringing legal documents to him
during their visits. [205] ¶ 51. The grievance was marked “unable to resolve” and
Defendants attribute this ban to “computer use infractions.” [197] ¶ 147. In support they
cite the testimony of defendant Thomas Zubik, Director of the Forensic Treatment Program
since April 2018. [197] ¶ 40. Zubik testified that he told center librarian David Hagerman,
per a message from Dawson, that Olsson was no longer allowed to use state computers
“because of infractions.” [187-22] at 55:14–25. Zubik’s statement to Hagerman and any
statement by Dawson nested within Zubik’s testimony is inadmissible hearsay when offered
to establish the reason.
31
Defendants say DHS discontinued plaintiff’s internet access “after a serious violation of
the Internet Access Certificate of Understanding.” [197] ¶ 148. In support, they cite to an
exhibit they have not attached (Exhibit AA to Zubik Dep.) and a letter from a non-defendant
administrator to plaintiff’s lawyer. [187-41] at 2. Defendants don’t cite to an affidavit,
interrogatory response, or testimony from the administrator that could make the letter
admissible.
32
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forwarded to Ingram and Epperson, but plaintiff never received a response. [205]
¶ 51.
F.
Olsson’s Access to Legal Resources
At all times relevant to this suit, the center’s library offered two legal resources
to residents: the Illinois Compiled Statutes (2016 edition) and Volumes 1 and 2 of the
supplements to the 2016 edition of the Illinois Compiled Statutes. [197] ¶ 173. (Two
desktop computers with access to Thompson Reuters Westlaw Correctional were
added after March 2020. [197] ¶ 173; [187-43] at 55:20–25, 56:1–25.33 Because of
COVID-19, residents were restricted to their units and unable to use the library’s
computers until June 2021. [205] ¶ 57.)
The center’s librarian, defendant Hagerman, has no legal training, nor has he
received training on Thompson Reuters Westlaw Correctional. [205] ¶ 59. Defendant
Hagerman can look up “a specific case or a specific law” for a resident, [205] ¶ 60
(quoting [187-43] at 57:7–25, 58:1–7), but he “does not conduct legal research such as
that performed by a paralegal.” [205] ¶ 60 (citing [187-43] at 61:19–23). If a resident
asks Hagerman to conduct legal research that Hagerman thinks should be conducted
by an attorney, Hagerman will reject the request and tell the resident to speak to an
attorney. [205] ¶ 61. When plaintiff asked Hagerman to print out an in forma
pauperis petition, Hagerman refused and told plaintiff to go through his attorney.
[205] ¶ 62. Olsson alleges that Hagerman was ordered to deny his requests to print
The parties say the computers have access to Westlaw Correctional. [197] ¶ 173; [205] ¶ 59.
But in his deposition, Hagerman said the computers have access to LexisNexis. [187-43] at
31:13–18, 38:14–25, 39:1–15. I use the parties’ representation in their statements of fact.
33
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out legal materials, so the only way for Olsson to access legal materials was to ask
his father to put cases on a CD and send them to Olsson. [197] ¶ 171. Olsson says
that as a result, he has been unable to bring lawsuits on his own behalf and help
other center residents bring lawsuits. [197] ¶ 172. Olsson never asked Hagerman to
look up any case law or statutes and print them out. [197] ¶ 175.
IV.
Analysis
Plaintiff dropped his claims against defendants Coleman, Freeman, Dyslin,
Corcoran,
Giardina,
Jackson,
Jung-Oliver,
and
Pilario
midway
through
summary-judgment briefing. [196] at n.2. The remaining defendants are Beyer,
Dawson, Epperson, Hagerman, Hardy, Ingram, Malis, Pharis, and Zubik. Plaintiff
brings First Amendment retaliation claims against all those defendants but brings
denial-of-access-to-courts claims against only four of them: Hagerman, Pharis,
Ingram, and Zubik.
A.
Denial of Access to Courts
Pretrial detainees, like prisoners, have a fundamental right of access to the
courts. Lehn v. Holmes, 364 F.3d 862, 865 (7th Cir. 2004). The right is limited, though.
It assures only meaningful access to the courts, id. at 866, and any access claim must
be tied to vindication of a “separate and distinct right.” Id. (quoting Christopher v.
Harbury, 536 U.S. 403, 415 (2002)). A plaintiff must demonstrate that “prison officials
failed to assist in the preparation and filing of meaningful legal papers,” and that, as
a result, he suffered an actual injury—he was hindered in his efforts to file a
complaint or to pursue a claim once in court. See id. at 868; Marshall v. Knight, 445
F.3d 965, 969 (7th Cir. 2006).
23
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The right doesn’t require a facility to offer any specific resources. Lehn, 364
F.3d at 868. Law libraries, for instance, “are not ends in themselves.” Lewis v. Casey,
518 U.S. 343, 351 (1996). They are just “one constitutionally acceptable method to
assure meaningful access to the courts.” Id. Prisons (and civil detention facilities) can
provide meaningful access in other ways. See id. But some alternatives are clearly
inadequate. For instance, a library with no state statutes, digest, or reporters, where
inmates cannot have materials copied unless they provide the exact citation to a case
or statute, does not provide meaningful access. See Corgain v. Miller, 708 F.2d 1241,
1248–50 (7th Cir. 1983). Meaningful access avoids putting detainees in a Catch-22,
where the detainee can obtain legal materials only by giving the librarian precise
citations, but can only obtain precise citations by referring to legal materials. Id. at
1250.
An access-to-courts claim requires plaintiffs to explain specifically how
inadequate resources hindered their efforts to pursue a claim, Lewis, 518 U.S. at 351,
or “caused a potentially meritorious claim to fail.” Marshall, 445 F.3d at 969. A
plaintiff might show, for instance, that inadequate resources hindered him so much
that he wasn’t even able to file a complaint. Lewis, 518 U.S. at 351. Or he might show
that his complaint was dismissed because he failed to comply with a technical
requirement that, without access to adequate resources, he could not have known
about. Id.
Olsson says that Hagerman (the center’s librarian), Pharis, Ingram, and Zubik
(Forensic Program Directors and Acting Forensic Program Directors at various times)
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denied him adequate access to the courts. [196] at 21. Specifically, he says Hagerman
“determine[d] when he [Hagerman] provide[d] legal research and who he provide[d]
it for.” [196] at 21. Plaintiff also points to Hagerman’s refusal to print out an in forma
pauperis form for plaintiff. [196] at 24. The directors, meanwhile, “were responsible
for EMHC’s resources, including the library.” [196] at 21. To succeed on his claims,
Olsson must show that the resources and legal-research assistance were
constitutionally inadequate, and that he suffered an injury as a result. In addition,
to impose liability under § 1983, plaintiff must demonstrate each defendant’s
personal involvement in the constitutional violation. See Taylor v. Ways, 999 F.3d
478, 493–94 (7th Cir. 2021); Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir.
2017).
When Olsson filed this suit in 2017, the center’s library offered only the Illinois
Compiled Statutes (2016 edition) and volumes 1 and 2 of the supplements to the
Compiled Statutes. [197] ¶ 173. The library did not install computers with access to
Westlaw Correctional until the COVID-19 outbreak (the parties do not point to
evidence of when, exactly, they were installed). [196] at 20; [187-43] at 55:20–25–
56:1–25. The librarian, defendant David Hagerman, can find a case or statute for a
resident if they give him a name or citation, [205] ¶ 60 (citing [187-43] at 57:7–25,
58:1–7), but he does not conduct the sort of legal research a paralegal would. [205] ¶
60 (citing [187-43] at 61:19–24).34
Asked to clarify what he meant by this, Hagerman said he could look up the elements of a
burglary because “[t]hat’s just a definition,” but he could not do the sort of research where he
“sit[s] down for hours.” [187-43] at 58:8–18, 60:24–25–61:1–2. He added that “[i]f a patient
34
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This could be the sort of Catch-22 scenario that does not provide meaningful
access to the courts. See Corgain, 708 F.2d at 1250. Center residents had access to
statute citations but no access to case reporters. They could only access cases by
giving Hagerman case citations, but could only give Hagerman case citations by
accessing cases. In theory, they could have provided Hagerman with citations to
statutes and asked him to find cases interpreting those statutes. But Hagerman said
he didn’t do that sort of research. [187-43] at 61:5–9. What’s more, the center didn’t
provide any federal statutes or cases; residents were left to rely entirely on state law.
Olsson says that, because of these inadequate resources, multiple complaints
he filed were dismissed for failure to comply with procedural technicalities.35 But he
does not explain what those procedural technicalities were. And with one exception,
he does not explain specifically how the inadequate legal resources hindered his
ability to pursue legal claims. A plaintiff must do more to defeat a motion for
summary judgment. See Weaver v. Champion Petfoods USA Inc., 3 F.4th 927, 938
(7th Cir. 2021). The one specific example Olsson offers is the Jung-Oliver suit, 18-cv07084 (N.D. Ill. 2018), where plaintiff challenged his conditions of confinement on
due-process grounds. [196] at 25; [205] ¶¶ 64, 65. After Olsson filed the complaint in
came up to me and said could you go on the internet and find all cases or as many cases as
you can dealing with child endangerment or custody issues, I’m not going to do that. I’m not
that type of researcher.” [187-43] at 61:5–9.
Those complaints are Olsson v. Weatherspoon, No. 07-cv-06035 (N.D. Ill. 2007); Olsson v.
Almazar, No. 07-cv-06436 (N.D. Ill. 2007); Olsson v. O’Malley, No. 08-cv-06317 (N.D. Ill.
2008); Olsson v. Madigan, 12-cv-03057 (N.D. Ill. 2012); Nadzhafaliyev v. Hardy, 17-cv-04469
(N.D. Ill. 2017); Olsson v. Malis, 18-cv-06838 (N.D. Ill. 2018); Olsson v. Jung-Oliver, 18-cv07084 (N.D. Ill. 2018). [205] ¶ 63.
35
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Jung-Oliver, he started to question whether he should have filed an Eighth
Amendment cruel-and-unusual-punishment claim instead. [196] at 25; [205] ¶ 65.
Plaintiff says he did not have adequate resources to answer this question.36 Afraid
that his case would not survive the screening process and would be dismissed for
failure to state a claim, he voluntarily dismissed the case. [196] at 25; [205] ¶ 65.
Plaintiff wanted to refile, but he says he was unable to research the issue. [196] at
25; [205] ¶ 66. Two years later, though, Olsson filed another case, Olsson v. Zubik,
20-cv-01701 (N.D. Ill. 2020), which brings claims substantially similar to those in
Jung-Oliver.
The Jung-Oliver complaint alleged that defendants’ failure to properly care for
another resident (who urinated throughout the facility and ate his own feces) “created
a highly unsanitary environment where plaintiff [was] in great and iminent [sic]
danger of contracting a virus or bacteria.” 18-cv-07084, [1] at 6. The complaint also
alleged that the Hartman Unit was chronically infested with mice and cockroaches.
18-cv-07084, [1] at 7. Similarly, the Zubik complaint alleges that Hartman Unit
suffers from a rodent and insect infestation problem, insects and foreign objects are
commonly found in food, juice is served in a moldy punch bowl, meat is dangerously
undercooked, the air vents are covered in black mold, and more. 20-cv-01701, [1] ¶¶ 2,
18, 21–23, 26–27, 39–40. Given that Olsson was able to pursue the Zubik lawsuit (and
Defendants contest this, [205] ¶ 65, but plaintiff has at least raised a material dispute over
whether, without access to federal law and without a librarian able to do legal research, he
could have answered this question.
36
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is still pursuing it), he did not suffer a cognizable access-to-courts injury when he was
unable to refile the Jung-Oliver lawsuit.
Defendants’ motion for summary judgment on Olsson’s access-to-courts claim
is granted.
B.
Retaliation
Legal Standards
To prove retaliation, a plaintiff must demonstrate that 1) the plaintiff was
engaging in protected First Amendment activity, 2) the plaintiff suffered a
deprivation that would likely deter a reasonable person from future First Amendment
activity, and 3) the First Amendment activity was a “motivating factor” in the
defendant’s decision to act against the plaintiff. See Jones v. Van Lanen, 27 F.4th
1280, 1284 (7th Cir. 2022). Defendants only argue on the motivating-factor element.
A “motivating factor” need not be the sole factor, Woodruff v. Mason, 542 F.3d 545,
551 (7th Cir. 2008), but it must be a sufficient factor. Peele v. Burch, 722 F.3d 956,
960 (7th Cir. 2013). Retaliation can still be a motivating factor even when the
retaliatory act, when taken for non-retaliatory reasons, would have been proper.
Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (citing Howland v. Kilquist, 833
F.2d 639, 644 (7th Cir. 1987)).
A defendant may offer a legitimate, non-retaliatory reason for taking the
action. See Vukadinovich v. Bd. of Sch. Trustees of North Newton Sch., 278 F.3d 693,
699 (7th Cir. 2002). In that scenario, a defendant can even acknowledge that
retaliation was a motivating factor, so long as they demonstrate that it was not a
“necessary condition of the harm.” Walker v. Groot, 867 F.3d 799, 803 (7th Cir. 2017).
28
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That is, absent defendants’ retaliatory motive, “the harm would have occurred
anyway.” Id.
In response to a defendant’s sufficient proof of non-retaliatory causation, the
plaintiff can still prevail by showing that the defendant’s proffered reason is
pretextual. Vukadinovich, 278 F.3d at 699. The plaintiff can demonstrate pretext
directly (by, for instance, a defendant’s comment that she took adverse action against
the plaintiff because of his First Amendment activity, see Massey v. Johnson, 457 F.3d
711, 718 (7th Cir. 2006)) or indirectly. Vukadinovich, 278 F.3d at 700. To demonstrate
pretext indirectly, the plaintiff can show that the defendant’s justification is not
supported by facts, is not the real reason for the action, or is insufficient to warrant
the action. Id. “In the summary judgment context, this means that [plaintiff] has to
show that a rational finder of fact could infer that the defendants’ stated reasons for
[acting against] him were lies.” Id. at 699.
Application to Defendants
a. Dawson
Dawson was the center’s hospital administrator. [197] ¶ 14. Plaintiff says
Dawson retaliated against him for filing lawsuits and helping other detainees file
lawsuits. [196] at 26. Specifically, he says Dawson ordered others to remove plaintiff’s
legal complaints37 and ordered the confiscation of his non-PDA electronic devices to
Defendants misunderstand plaintiff’s argument about the significance of removing the
legal complaints. [186] at 31–32. Plaintiff does not argue that posting legal complaints on
facility bulletin boards is protected First Amendment activity. [196] at 34–35. So defendants’
discussion of whether that right is protected (a discussion that seems to conflate posting legal
complaints with serving as a jail house lawyer, [186] at 31–32) is beside the point. Plaintiff
37
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retaliate against him for his legal work. [196] at 34–37. Plaintiff has offered sufficient
circumstantial evidence that Dawson was motivated in part by retaliation. For one,
Dawson ordered the complaints removed the same month that plaintiff filed a lawsuit
against the center (and two months after he filed another lawsuit). [205] ¶¶ 25; [197]
¶¶ 115, 120. A month later, immediately after plaintiff met with a legal advocacy
group, staff searched his room and confiscated electronic devices. [205] ¶ 35.
Suspicious timing by itself will rarely establish the motivating-factor element
of a retaliation claim. Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012). But
it can when the allegedly retaliatory action “follows close on the heels of protected
expression,” and the person who decided to act against the plaintiff knew that the
plaintiff was engaged in protected conduct. Id. (quoting Lalvani v. Cook Cnty., 269
F.3d 785, 790 (7th Cir. 2001)).38 Dawson knew about the lawsuits filed in April and
June. He was a defendant in both, [205] ¶¶ 19, 25, and he ordered the complaints
taken down because he believed they contained “personal and legal information of
other residents” (indicating he was familiar with them). [205] ¶ 30. He also knew that
Olsson was meeting with a legal advocacy group the day of the second search. [187-5]
is simply arguing that he was exercising his First Amendment rights by filing suits and
helping others file suits. [196] at 26. Removing legal complaints is, in his view, the adverse
act likely to chill future exercise of those rights. [196] at 34–35. In their motion for summary
judgment on the retaliation claim, defendants only argue that plaintiff cannot prove
retaliatory motive; defendants do not challenge (for purposes of this motion) plaintiff’s theory
of adverse actions.
Plaintiff also alleges that Dawson retaliated against plaintiff for representing Abby Grason
in her Social Security proceedings. See [187-5] at 109:1–25; 110:1–10. But Dawson began his
allegedly retaliatory behavior in June 2017, when he ordered complaints removed. [197]
¶¶ 115, 120. That was four months after plaintiff represented Grason in her hearing, [205]
¶ 11, and therefore not close on the heels of protected activity.
38
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at 110:4–10; [187-6] at 182:6–21. Given how close in time Olsson’s legal activities
were to Dawson ordering plaintiff’s complaints removed and his electronics
confiscated, plaintiff has pointed to enough evidence to suggest an improper
motivating factor.
Dawson says that he ordered the complaints removed because he worried about
the personal and legal information of other residents “who, to [d]efendant’s
knowledge, had not given permission for their information to be publicly posted
within EMHC.” [187-44] at 3; see [205] ¶ 30. If Dawson’s concerns were based on a
genuine, albeit mistaken, belief about what the other residents consented to, then he
did not harbor a retaliatory motive. See Redd v. Nolan, 663 F.3d 287, 295 (7th Cir.
2011). Plaintiff says that the residents named in the complaints signed onto them as
plaintiffs, “indicating their consent to them and the information contained.” [196] at
35. But this doesn’t say anything about whether they’d consented to have the
complaints posted within the facility, let alone whether Dawson genuinely believed
that they hadn’t consented. Plaintiff therefore hasn’t raised a material dispute to
defeat summary judgment in favor of Dawson for the removal of plaintiff’s
complaints.39
Defendants provide the following explanations for the search of Olsson’s room
and seizure of his electronics. Staff searched plaintiff’s room during a facility-wide
Similarly, although I sustained plaintiff’s hearsay objection to Ingram’s report that
Dawson’s concern was one of “confidentiality/HIPAA,” see note 19 above, the email does not
raise a genuine dispute over pretext, when relied on by plaintiff. Plaintiff says that a review
of the complaints reveals no HIPAA disclosure. [196] at 15. But at most this is evidence of
Dawson’s mistaken understanding of confidentiality and HIPAA; it is not enough for a jury
to conclude that Dawson was lying about his concerns.
39
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sweep after administrators learned that a staff member and resident had an
inappropriate relationship. [197] ¶¶ 122–23; [187-10] at 36:21–23, 37:19–21, 40:2–19.
Staff took his electronics because he had more devices than center policy allowed.
[197] ¶¶ 122, 124. And staff kept his electronics because they discovered a flash drive
and Wi-Fi hot spot hidden in his computer, [197] ¶¶ 125–26, in violation of center
policy forbidding residents from accessing the internet while in their residence units.
[197] ¶¶ 128–29.
Plaintiff responds that there was no facility-wide sweep; he saw staff search
only his room. [197] ¶¶ 122; [205] ¶ 35. He also says he wasn’t violating the center’s
electronics policy because the written policy does not say what constitutes an
electronic device and defendant Pharis previously said that “the limit on electronics
stands at 3 plug-in items.” [205] ¶ 33. He had only three plug-in items (two personal
computers and an X-Box game console) when his electronics were confiscated. [205]
¶ 36. What’s more, when staff searched plaintiff’s room a week earlier, they found the
same items and did not confiscate them. [205] ¶ 35. All of these points undermine
defendants’ proffered reasons for searching his room and then confiscating his
electronics. As for staff holding on to his items after confiscating them, plaintiff does
not challenge staff keeping the WiFi hotspot. But defendants never explain why, in
response to finding too many electronics and a hotspot, they kept all the electronics.
[205] ¶ 50 (defendants still had plaintiff’s electronics on Sep. 1, 2017). In fact,
according to defendant Epperson’s testimony, when staff confiscate a resident’s
electronics because the resident has more than three, the resident is allowed to choose
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three of the confiscated items to keep. [187-10] at 76:8–16. And if it is true that
plaintiff wasn’t violating the electronics policy, then the center held onto plaintiff’s
items for 24 hours without proof of any policy violation; staff only discovered the WiFi
hotspot the day after the search. [197] ¶ 126. This is enough to suggest pretext. I
therefore deny summary judgment on the retaliation claim against Dawson related
to seizing plaintiff’s electronics.
b. Epperson
Epperson served as Chief of Security, [197] ¶ 17, tasked with “security, custody
and control of residents.” [187-10] at 16:9–16. As part of that role, he took orders from
Dawson about when to conduct searches. [187-10] at 41:15–25, 42:9–15. Epperson
directed subordinates to search Olsson’s room on July 20, [205] ¶ 37—the search
where staff confiscated multiple electronic items, see [205] ¶¶ 35–36. He was also
involved in confiscating plaintiff’s PDA. [187-10] at 82:6–16.
Plaintiff alleges that Epperson retaliated against plaintiff by directing staff to
confiscate his PDA and other electronic devices and revoking his distance-learning,
computer-access, and internet-access privileges. To retaliate against Olsson,
Epperson had to know that Olsson was engaged in protected First Amendment
activity. Epperson knew about some things, but not everything. He knew that
plaintiff was helping Grason in her Social Security appeal because he had to sign off
on Grason and plaintiff using a room for their telephone conference with the ALJ.
[187-5] at 110:4–10, 111:6–11. He knew that Olsson filed a lawsuit in mid-June
because Epperson was one of the defendants. [205] ¶ 25. He also knew that plaintiff
was meeting with a legal advocacy organization on July 20th because, again, he had
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to approve “use of the attorney room.” [187-6] at 182:6–21. There is no indication,
however, that Epperson knew about the three grievances plaintiff filed in early
September. So to the extent plaintiff is arguing that Epperson suspended plaintiff’s
distance-learning privileges because of those grievances, plaintiff’s claim fails.
However, I take plaintiff to allege that the suspension was motivated by more than
just the grievances, but also by the lawsuits he filed, the help he gave Grason, and
his meeting with a legal advocacy group.
The relevant timeline is as follows. In November 2016, Pharis approved
plaintiff’s use of the PDA, knowing that the PDA—if attached to a microphone, which
defendants do not allege plaintiff requested—had recording capabilities. [205] ¶ 13.
Plaintiff used the PDA to take notes on his own cases and on cases he was helping
other patients with. [205] ¶ 14. From November 2016 to February 2017, Olsson
helped Grason challenge the denial of her application for Social Security benefits.
[205] ¶¶ 15, 18. In late February 2017, Olsson successfully represented Grason in her
Social Security appeal hearing before an ALJ. [205] ¶ 18. In late April 2017, plaintiff
filed this suit against multiple center staff members. [205] ¶ 19. On May 24, 2017,
plaintiff’s previously approved PDA was confiscated without explanation. [205] ¶ 20.
In mid-June, plaintiff filed another lawsuit against staff facility. [205] ¶ 25. The
second suit named Epperson as a defendant. [205] ¶ 25. On July 13, staff searched
plaintiff’s room and found multiple electronics. They didn’t confiscate them. [205]
¶ 34. On July 20, plaintiff met with a legal advocacy group about his lawsuits. [205]
¶ 35. An hour later, staff again searched plaintiff’s room, and this time confiscated
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all his electronics. See [205] ¶ 35. On September 13, Epperson entered the distancelearning lab and told plaintiff his distance-learning privileges were suspended. [205]
¶ 47. Epperson said a written explanation would be provided, but it never was. [205]
¶ 47. Plaintiff was banned from using any state computer or accessing the internet.
[197] ¶ 147; [196] at 37.
Olsson says that suspicious timing, combined with staff’s “widespread and
repeated expressions of disapproval” of Olsson’s protected First Amendment activity,
show that Epperson confiscated his PDA out of retaliation. [196] at 30. But plaintiff
does not point to any admissible “expressions of disapproval” by Epperson.
Retaliatory motive must be attributed to each specific defendant. A “retaliatory
attitude existing generally among [staff]” is not sufficient. Massey, 457 F.3d at 718;
see Jones, 27 F.4th at 1286–87. Still, Olsson has more than suspicious timing to rely
on. He has the absence of a contemporaneous explanation (to him) for the seizure,
and evidence that defendants’ stated reason—that plaintiff was seen using the PDA
to text and/or email staff in violation of center policy—isn’t true. [205] ¶ 14. This is
enough to raise a question of credibility for a jury.40
When it comes to revocation of distance-learning privileges, computer access,
and internet access, though, Olsson only has suspicious timing. Again, there is no
evidence that Epperson knew about the grievances Olsson filed shortly before
Defendants imply that they would have confiscated the PDA anyway because plaintiff was
using it to store Grason’s confidential information related to her Social Security litigation.
[186] at 30. But defendants offer no evidence that they knew Olsson was storing Grason’s
confidential information until after they confiscated the PDA. [197] ¶ 107.
40
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Epperson revoked his privileges. So any retaliation would have to stem from Olsson
helping Grason, Olsson filing suit against Epperson and others, or Olsson meeting
with the legal advocacy group. Those took place seven, three, and two months before
Epperson revoked plaintiff’s privileges, respectively. By itself, that timing is not close
enough to demonstrate a retaliatory motive. See Kidwell, 679 F.3d at 966.
Finally, Olsson alleges that Epperson, like Dawson, confiscated his other
electronics out of retaliation. Olsson has made out a claim against Dawson for
confiscating and keeping his electronics, as I explained above. Like Dawson,
Epperson had the requisite knowledge to retaliate. He knew that plaintiff filed a
lawsuit in June because he was named as a defendant, Nadzhafaliyez v. Hardy,
17-cv-04469, [1], and he knew that plaintiff was meeting with a legal advocacy group
on the day of the second search because he would have had to sign off on using the
room. See [187-5] at 111:10–11; [187-6] at 182:6–21.
The question here is whether a subordinate with retaliatory intent (Epperson)
who follows orders from a superior with retaliatory intent (Dawson) has retaliated.
Retaliatory intent is a motivating factor when the intent is sufficient and necessary
to taking the adverse action. See Peele, 722 F.3d at 960. If defendant shows that he
would have taken the adverse action even without retaliatory intent, then retaliation
wasn’t a motivating factor. See id. Applied here, would Epperson have ordered his
subordinates to search plaintiff’s room and confiscate plaintiff’s electronics had
Dawson not ordered him to? If so, Epperson would be liable for retaliation. If not,
Epperson would not be liable. There is not enough information in the record on this
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point, and as a result, Epperson has not shown that he is entitled to judgment as a
matter of law.
c. Beyer
Beyer served as the center’s Consumer Support Specialist. [197] ¶ 8. As part
of that role, Beyer attended Consumer Council meetings to ensure that discussions
“remained productive and appropriate.” [197] ¶ 9. At a June 22, 2017, council
meeting, Olsson distributed the copies of complaints in the lawsuits he had filed, [205]
¶ 27, and asked council members to post the complaints to resident bulletin boards.
[197] ¶ 115. At the end of that meeting, Beyer told plaintiff, “If you know what’s good
for you, you would back off on promoting these complaints.” [205] ¶ 29. Beyer also
told plaintiff and fellow resident Sean Gunderson that continuing to file lawsuits
wouldn’t be beneficial for them and asked if they were trying to “stoke a riot.” [205]
¶ 29. Finally, around July 21, 2017, Beyer told plaintiff that he had been placed on
unit restriction and removed as president of the Consumer Council because he had
violated the center’s electronics policy. [205] ¶ 39. No doubt, Beyer’s earlier comments
would demonstrate retaliatory motive if Beyer later acted against Olsson. But
plaintiff offers no evidence that Beyer himself made the decision or even had the
authority to place him on unit restriction or remove him as president. See [196] at 33.
The evidence shows only that Beyer delivered the news. Without more, plaintiff
cannot make out a claim against Beyer.
d. Hagerman
David Hagerman is the center’s librarian. [197] ¶ 23. He knew that Olsson had
filed grievances and lawsuits against center staff, including him, and that Olsson
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helped other residents with their complaints. [205] ¶ 71. Plaintiff does not say what
retaliatory conduct Hagerman allegedly took. He mentions the fact that Hagerman
refused to print out an in forma pauperis form for him, and instead referred him to
an attorney, [205] ¶ 62, but he never explicitly says that this was retaliatory conduct,
let alone explain how it was. Hagerman is entitled to summary judgment on plaintiff’s
retaliation claim.
e. Hardy
Until June 2017, Hardy served as the center’s medical director. [197] ¶ 24. In
that role, he supervised the doctors in the unfit-to-stand-trial unit and the center’s
two assistant medical directors. [187-14] at 24:13–25, 25:18–25, 26:1–13. (The
assistant medical directors, in turn, supervise the doctors in the not-guilty-by-reasonof-insanity units. [187-14] at 25:18–24.) Hardy knew that plaintiff had filed
grievances and suits against staff, including him, and that plaintiff helped other
residents file suits. [205] ¶ 71.
Plaintiff alleges that Hardy transferred him from Hartman Unit to M Unit,
[196] at 13, in retaliation for helping Grason with a complaint in her medicalconditions lawsuit, in which she planned to name Hardy as a defendant. [205] ¶¶ 7,
8. But plaintiff cites to no evidence, either in his statement of additional facts or his
response brief, to support that assertion. What’s more, there is no evidence that
Hardy even knew about this suit, which hadn’t yet been filed when Hardy informed
plaintiff he would be transferred to another unit. Compare [205] ¶ 8, [197] ¶ 71
(Grason was still telling people about her plans to file suit in July or August) with
[197] ¶¶ 73–74 (staff told plaintiff in July that he would be transferred). It is true
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that Grason told Beyer, her treatment team, and her psychiatrist about her plans to
sue. [205] ¶¶ 7, 8. But plaintiff offers no evidence that Grason told Hardy or that
Hardy knew about Grason’s plans from staff.41 He therefore cannot satisfy the third
element of a retaliation claim against Hardy.
f. Ingram
From January to July 2017, Victoria Ingram served as acting Forensic
Treatment Program Director. [205] ¶ 69. The director oversees the center’s security
department and court services and tracks patients’ movements in and out of the
center. [205] ¶ 72. The director also ensures that staff in different departments work
together on patient care. [205] ¶ 72. She is “like the chief of operations”; she “makes
the hospital work.” [205] ¶ 72.
Plaintiff says that Ingram ordered plaintiff’s PDA to be confiscated in
retaliation for helping Grason and for filing the April lawsuit against center staff.
[196] at 14. But he cites no evidence showing she was involved in the confiscation. He
says that because the Forensic Program Director is tasked with the above duties, and
because Ingram was acting director when the PDA was confiscated, she must be
responsible. [196] at 14 (citing [205] ¶ 72). But the job description he cites is too vague
reach that conclusion. Plaintiff also cites to the email Ingram sent his father,
Plaintiff says Hardy was aware that plaintiff filed grievances and lawsuits against staff,
including Hardy himself, and that plaintiff helped other residents with complaints. [205]
¶ 71. In support, he cites to a portion of Hardy’s deposition that says just that. [187-14] at
49:5–22; 50:14–17, 24–25; 51:1–4. But Hardy’s testimony is not enough to suggest that he
knew about Grason’s plans specifically, let alone that he knew about them before the transfer.
41
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explaining that his PDA was confiscated because it was contraband. [196] at 14.42 To
the extent plaintiff is arguing that Ingram must have been involved in confiscating
the PDA because she sent the email, he is wrong. A jury could not reasonably infer
that sending an email about an incident after the fact necessarily meant the sender
was involved in the incident itself.
g. Malis
Richard Malis was one of plaintiff’s treating psychiatrists during plaintiff’s
time in Hartman Unit. [197] ¶¶ 36, 62. In August 2011, plaintiff met with Malis and
Pharis to discuss a grievance and complaint plaintiff filed. [205] ¶ 3. Plaintiff told
Malis and Pharis that his treatment team’s relationship with him was “adversarial
and nature and he tries his best to keep things peaceful.” [205] ¶ 4. In response, Malis
said, “if [Olsson] wants things to be peaceful, why doesn’t he consider how many
people against whom he has filed lawsuits.” [205] ¶ 4. Plaintiff doesn’t say that Malis
was involved in any retaliatory acts, so cannot make out a claim against him.
h. Pharis
Jeffrey Pharis was Acting Forensic Program Director or Forensic Program
Director from 2012 to 2016. [197] ¶ 36. In that role, he had the authority to approve
unit transfers when patients’ treatment teams recommended them. [187-14] at
47:23–24, 48:2–18. Plaintiff alleges that Pharis transferred him from Hartman Unit
to M Unit in retaliation for helping Grason with her medical-conditions lawsuit,
which named Pharis as a defendant. See [205] ¶¶ 7, 8. Plaintiff relies on a number of
42
See note 13, above.
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facts to support his argument. First, for five years, plaintiff repeatedly asked to be
assigned to a psychiatrist other than Malis but was rebuffed with “I’ll get back to
you.” [205] ¶ 2. It was only after he began helping Grason, at which point he had
stopped asking for a different psychiatrist, [196] at 12–13, that Hardy told him he
could have a new psychiatrist—but only if he transferred out of Hartman Unit. [197]
¶ 65. But for a few months before the transfer, plaintiff was able to see a new
psychiatrist while still residing in Hartman. [205] ¶ 5. Second, one month after
Grason told her treatment team about her plans to file the complaint, staff told Olsson
in a meeting that he would be transferred out of Hartman Unit. See [196] at 13; [197]
¶ 74. Third, Pharis was present at that meeting, which occurred in July 2015. [197]
¶¶ 73–74, 78. And fourth, after the transfer, center staff members told Olsson he was
moved because he gave Grason legal help. [197] ¶ 83.
As with Hardy, plaintiff has not shown that Pharis knew Grason planned to
file a complaint against center staff. Pharis was the director or acting director, [197]
¶ 36, not part of Grason’s treatment team. Nor does Pharis’s presence at the meeting
where plaintiff was told he would be transferred say anything about Pharis’s role in
the transfer or his motive. Further, the comments directly linking the transfer to
plaintiff’s First Amendment activity are not specific to Pharis. Staff members said
plaintiff was transferred because he helped Grason file suit. [197] ¶ 83. In other
words, someone transferred Olsson or recommended his transfer out of retaliation.
But staff members never indicated who that someone was. Yes, Pharis had to sign off
on the transfer. [187-14] at 47:23–24, 48:2–18. But even assuming Pharis knew about
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Grason’s plans, there is no evidence that he approved the transfer because of her
plans—a rumor passed along by subordinate staff that was not attributed to Pharis
is not enough. Similarly, Hardy’s odd explanation that plaintiff could only remain on
Hartman Unit if he continued to work with Malis may be enough to suggest pretext
for an improper motive on Hardy’s part, but Pharis wasn’t the one who offered that
explanation. (And Hardy wasn’t involved in the transfer. See [197] ¶ 65.)
In litigation, defendants give an additional explanation for the transfer. They
say Olsson was moved because three female residents accused him of sexually
inappropriate behavior. [197] ¶ 67. As a result, Malis recommended “many times”
that Olsson be transferred to an all-male residence. [197] ¶ 68. But plaintiff denies
that he engaged in this behavior, and I credit his denial at this stage. [197] ¶ 68.
Taken together, these facts no doubt look odd. But they are not enough for a
legally cognizable retaliation claim; to impose liability under § 1983, Olsson must
demonstrate each defendant’s personal involvement in the constitutional violation,
from knowledge to intent to action. See Taylor, 999 F.3d at 493–94; Gill, 850 F.3d at
344. Plaintiff does not show that Pharis knew about plaintiff’s protected activity, let
alone that Pharis approved the transfer because of that activity. Plaintiff therefore
cannot make out a claim against Pharis.
i. Zubik
Thomas Zubik became the Forensic Treatment Program Director in April 2018.
[197] ¶ 40. In February 2019, he met with plaintiff to discuss the Olsson v. JungOliver legal complaint, in which he was named as a defendant. [205] ¶ 67. He told
plaintiff that the center was handling the matter and that further legal action was
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unnecessary. [205] ¶ 67. In 2020, Zubik met with plaintiff again (while this case was
pending) and asked him to stop filing lawsuits and naming Zubik as a defendant.
[205] ¶ 68. Plaintiff doesn’t point to any retaliatory acts that Zubik took, so cannot
make out a claim of retaliation against him.
V.
Conclusion
Defendants’ motion for summary judgment, [185], is granted as to plaintiff’s
access-to-courts claim and as to the defendants that plaintiff no longer pursues. The
motion is also granted as to plaintiff’s retaliation claims against defendants Beyer,
Hagerman, Hardy, Ingram, Malis, Pharis, and Zubik. The motion is denied as to
plaintiff’s retaliation claims against defendants Dawson and Epperson. The Clerk
shall terminate defendants Coleman, Freeman, Dyslin, Corcoran, Giardina, Jackson,
Jung-Oliver, Pilario, Beyer, Hagerman, Hardy, Ingram, Malis, Pharis, and Zubik
from the caption, and correct it to read Olsson v. Dawson and Epperson.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: April 27, 2022
43
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