Dunham v. Hertz et al

Filing 68

MEMORANDUM AND ORDER ADOPTING 66 REPORT AND RECOMMENDATIONS as Modified by this Order; Granting in part and Denying in part 48 MOTION for Summary Judgment and Memorandum of Law in Support of Defendants' Motion for Summary Judgment fi led by Michael Hare, Maynard Hill, Captain Gulash. The motion is Granted to the extent it seeks summary judgment on Counts 3, 6 and 9. The motion is Denied to the extent it seeks summary judgment on Counts 1,2,4,5,7 and 8. Defendant Gulash is terminated from this action. Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 3/21/12. (bkl)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL DUNHAM,
Plaintiff,
v.

Case No. 09-cv-366-JPG

CAPTAIN JOSEPH GULASH, SGT.
MAYNARD HILL and JAIL GUARD
MICHAEL HARE, Individually,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
66) of Magistrate Judge Philip M. Frazier recommending that the Court grant in part and deny in
part the motion for summary judgment filed by defendants Joseph Gulash, Maynard Hill and
Michael Hare (Doc. 48). Plaintiff Michael Dunham has objected to the Report (Doc. 67).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. Id. “If no objection or only partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th
Cir. 1999).
Dunham objects only to Magistrate Judge Frazier’s recommended disposition of the
motion for summary judgment as to Count 7. In Count 7, Dunham, a pretrial detainee housed at
the Madison County Jail in 2007, complains that defendant Michael Hare, a jail guard, retaliated
against him because he complained to jail administrators about the jail conditions and his
treatment by Hare and because he announced he would file a civil lawsuit about those matters.

Specifically, in an October 24, 2007, letter to defendant Joseph Gulash, the jail administrator,
Dunham complained that Hare had identified him to the rest of the cell block as a “snitch,”
which made him a target of assaults by other detainees, and had threatened to make Dunham’s
life hellish if he reported Hare. In the complaint, Dunham alleges that (1) on October 26, 2007,
Hare banged large keys repeatedly against a wall upon which Dunham’s head and back were
resting, (2) on October 27, 2007, Hare acted as if he were blowing his nose and spitting into a
napkin Dunham was to use for breakfast, (3) on October 31, 2007, Hare purposefully gave
Dunham a lunch tray with dirt and hair in the food that he had saved especially for Dunham and
(4) on December 17, 2007, Hare slammed Dunham into his cell bars with great force and without
reason. Compl. ¶¶ 21, 65.
The Report found that there was not a sufficient temporal connection between Dunham’s
October 24, 2007, letter and the December 17, 2007, incident to support an inference of
causation. Accordingly, it recommended that Hare be granted summary judgment on Dunham’s
retaliation claim. Dunham objects to Magistrate Judge Frazier’s failure to consider the October
26, 27 and 31 incidents in finding that no reasonable jury could find causation. The Court
reviews the matter de novo.
To succeed on a First Amendment retaliation claim, a plaintiff must show that his speech
was a motivating factor in the allegedly retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009). Timing of an action, without more, is rarely sufficient to establish that
constitutionally protected speech was a motivating factor for the action. Nieves v. Board of
Educ., 297 F.3d 690, 694 (7th Cir. 2002); Pugh v. City of Attica, 259 F.3d 619, 630 (7th Cir.
2001). Suspicious timing is only sufficient to establish a causal connection if the action follows
very close after the protected activity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
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(2001) (per curiam); see Spiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004), overruled on other
grounds by Garcetti v. Ceballos, 547 U.S. 410 (2006)..
The Court believes that the alleged conduct by Hare less than two days after Dunham’s
announcement that he was going to complain and file a lawsuit about Hare, in combination with
the lack of any other rational explanation for Hare’s behavior, is sufficient for a reasonable jury
to draw an inference that Dunham’s intent to file a lawsuit was a motivating factor in Hare’s
mistreatment of him. For this reason, the Court will not enter summary judgment on Count 7.
No party objects to any other portion of the Report. The Court has reviewed those other
portions for clear error and finds none. Accordingly, the Court:
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ADOPTS the Report (Doc. 66) as MODIFIED by this order;

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GRANTS in part and DENIES in part the defendants’ motion for summary judgment
(Doc. 48). The motion is GRANTED to the extent it seeks summary judgment on
Counts 3, 6 and 9. The motion is DENIED to the extent it seeks summary judgment on
Counts 1, 2, 4, 5, 7 and 8. Defendant Gulash is terminated from this action; and

•

DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: March 21, 2012
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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