Shehadeh v. Cox et al
Filing
113
ORDER GRANTING IN PART and DENYING IN PART 76 Motion for Summary Judgment. Signed by Magistrate Judge Donald G. Wilkerson on 1/10/13. (sgp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMAL SHEHADEH,
)
)
Plaintiff,
)
)
v.
)
)
JOHN COX, GLENN HOWARD, BRETT )
CAMPBELL,
NORMAN
SUITS,
and )
CHARLES BATES
)
)
Defendants.
ORDER
Case No. 3:10-cv-985-DGW
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion for Summary Judgment filed by Defendants
on April 12, 2012 (Doc. 76), the Response filed by Plaintiff (pro se) on June 4, 2012 (Doc. 95), and
the Supplemental Response filed by Plaintiff (as represented by counsel) on September 14, 2012
(Doc. 108). For the reasons set forth below, the Motion is GRANTED IN PART and DENIED
IN PART.
BACKGROUND
Both Plaintiff and Defendants rely, almost exclusively, on the Second Amended Complaint
(Doc. 23), which is in the form of an affidavit, for the facts relevant to this Motion for Summary
Judgment. The following facts are taken from the Second Amended Complaint except where
indicated.
Plaintiff avers that on November 10, 2010, he was transferred to the Vienna Correctional
Center and housed on the second floor of Building 19. This floor was used for new arrivals and
offenders recently released from segregation until they could be moved to the third floor; and, it
was also used “to punish offenders.” Upon arrival, Plaintiff began filing grievances about the
living conditions – Plaintiff describes the second floor as having no showers and only two toilets
for the 100 man dorm and as a place where inmates do not enjoy the privileges available to other
inmates in general population.
Plaintiff also sought records of the fire inspection and
maintenance of Building 19 because he became aware that the building “was not supposed to be
housing offenders.” On November 23, 2010, he was moved to the third floor of Building 19, the
conditions of which “were as bad as those on the second floor except that the third floor offenders
were allowed some of the same privileges as those offenders in general population.” Plaintiff
again complained by writing letters to state officials and “accosting” every officer he came across.
On November 26, 2010, Plaintiff was again returned to the second floor. As he was
moving his property, Defendant Charles Bates (a correctional officer) said “’see what all your
crying got you?’” When Plaintiff asked Officer Bates why he was moved back to the second
floor, “Defendant Bates told Plaintiff that since Plaintiff enjoyed the second floor so much he and
Defendant Campbell [a Lieutenant] thought it would be nice to have Plaintiff permanently
assigned to the second floor and Defendant Cox [the Warden] agreed.” Plaintiff further states that
Defendant Suits (a Major) concurred and approved his move back to the second floor and that he
had had conversations “with Defendant Cox and other staff in reference to Plaintiff’s complaints.”
Plaintiff was moved into general population on December 3, 2010. The Second Amended
Complaint only mentions Defendant Howard, a Lieutenant, as the person to whom Defendants
Campbell and Bates submitted the housing change request. Thus, Plaintiff is asserting that he
was moved back to the second floor of Building 19 in retaliation for complaining about the
conditions in the building.
Plaintiff has submitted a report created by the John Howard Association, a non-profit entity
2
that provides “public oversight of Illinois’ juvenile and adult correctional facilities,” dated
September 27, 2011 (Doc., 108, pp. 17-34). The report states that the second and third floors of
Building 19 are “the prison’s most decrepit, overcrowded living quarters.” In general terms, the
prison is also over-crowded, vermin infested, in a general state of disrepair (from plumbing to
lighting), lacking in heating and air conditioning, and unsanitary. The report recommends that
Building 19 should be shut down, that the prison’s population be reduced, and the facilities be
improved.
Defendants seek summary judgment on qualified immunity grounds arguing that even if
the assertions in the verified Second Amended Complaint are true, Plaintiff has presented no facts
that his constitutional rights were violated.
STANDARD
Summary judgment is proper only if the moving party can demonstrate Athat there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.@
FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir.
2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836
(7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in
genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the
moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v.
Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a
matter of law where the non-moving party “has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323.
3
“[A] complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id.
The Seventh Circuit has stated that summary judgment is Athe put up or shut up moment in
a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept
its version of the events.@ Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v.
Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)). The
moving party bears the initial burden of producing evidence that identifies Athose portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes to demonstrate the absence of a genuine issue of material fact.@
Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (quoting Logan v. Commercial Union Ins.
Co., 96 F.3d 971, 978 (7th Cir. 1996)). After the moving party has satisfied its burden to establish
that no genuine issue of material fact exists, the burden shifts to the non-moving party to Aset forth
specific facts showing there is a genuine issue for trial.@ Fed. R. Civ. P. 56(e)(2). The non-moving
party Amay not rely merely on allegations or denials in its own pleading.@ Id. The opposing party
must, instead, Ago beyond the pleadings and by her own affidavits, or by the >depositions, answers
to interrogatories, and admissions on file,= designate >specific facts showing there is a genuine
issue for trial.=@ Celotex, 477 U.S. at 324.
DISCUSSION
Qualified Immunity must be decided early in litigation because it is an “’entitlement not to
stand trial or face the other burdens of litigation.’” Saucier v. Katz, 533 U.S. 194, 200-201 (2001)
(quoting Mitchell v. Forsyth, 472 U.S. 511 (1985)). In determining whether Defendants are
entitled to qualified immunity, the Court must consider two questions: 1. “Taken in the light most
4
favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated
a constitutional right?”; and, if the answer is yes, 2. was “the right clearly established?” Saucier,
533 U.S. at 201; Hernandez v. Cook County Sheriff’s Office, 634 F.3d 906, 914 (7th Cir. 2011).
With respect to the first question, the inquiry is specific to the circumstances of the case: “The
relevant dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202.
Defendants are not entitled to qualified immunity in this matter. Plaintiff has a clearly
established constitutional right to be free from retaliatory acts committed in response to the filing
of grievances and complaints related to prison conditions.
“Prisoners’ grievances, unless
frivolous . . . concerning the conditions in which they are being confined are deemed petitions for
redress of grievances and thus are protected by the First Amendment.” Hasan v. U.S. Dept. of
Labor, 400 F.3d 1001, 1005 (7th Cir. 2005). “’An act of retaliation for the exercise of a
constitutionally protected right is actionable under Section 1983 even if the act, when taken for
different reasons, would have been proper.’” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012)
(quoting Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987)). In order to show that he was
impermissibly retaliated against, Plaintiff must show that he exercised a right secured by the First
Amendment, that he suffered a deprivation, and that the exercise of his right was the “motivating
factor” for the deprivation. Gomez, 680 F.3d at 866 (citing Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009)); Pearson v. Welborn, 471 F.3d 732, 738 (7th Cir. 2006) (“To succeed on his
retaliation claim, it was necessary for [Plaintiff] to demonstrate that prison officials retaliated
against him for exercising a constitutionally protected right.”). Each of these propositions have
5
been sufficiently clear to appraise Defendants in this matter that retaliating against an inmate for
exercising his First Amendment Right to complain about prison conditions clearly violates his
rights. See Humphries v. Milwaukee County, ___ F.3d ___, 2012 WL 6684741, *3 (7th Cir.
2012).
The next step is to determine whether the facts show that Plaintiff’s rights were violated.
The only evidence cited in this case, Plaintiff’s Second Amended Complaint (which is in the form
of an affidavit) indicates that Plaintiff complained about the conditions on the second floor of
Building 19 by filing grievances. He was subsequently moved to the third floor, an area that was
marginally better; but was, within a couple of days returned to the second floor. According to the
Second Amended Complaint, the second floor had deplorable living conditions and was only
meant to be a temporary staging area. Once moved from the second floor, inmates would have
presumably better living conditions and be entitled to more privileges. Thus, when Plaintiff was
moved back to the second floor, he lost certain privileges and, as can be inferred from the Second
Amended Complaint, believed that he would be housed on the second floor permanently. To
support the claim that the return to the second floor was retaliation for the grievances, Plaintiff
recounts statements made by third parties and by Defendants. Namely, Correctional Officers
David and Allstad (who are not named Defendants) stated that he was being permanently moved
back to the second floor for his “complaints about the conditions of the second floor.” Defendant
Bates also confirmed that the was moved back to the second floor because he had “enjoyed” it so
much the first time and because of all his “crying” about the conditions – presumably veiled
acknowledgement that he was aware of Plaintiff’s complaints about the conditions on the second
floor. Defendant Bates also confirmed that he was working in conjunction with Defendant
6
Campbell. And, Defendant Suits acknowledged that he was aware of Plaintiff’s complaints and
that he and Defendant Cox had approved his return to the second floor.
Defendants nonetheless argue that placement of Plaintiff on the second floor, for whatever
reason, cannot be considered retaliation because “[p]risoners have no constitutionally protected
right to be assigned to particular housing quarters.” To support this proposition, Defendants cite
to Brown v. Liros, 391 Fed. Appx. 539, 542 (7th Cir. 2010). Brown does not stand for the
proposition cited. In that case, the Seventh Circuit stated that a “temporary reassignment of
housing quarters” is not a deprivation that would lead to an actionable due process claim.
However, “due process and retaliation claims are analyzed differently. Conduct that does not
independently violate the Constitution can form the basis for a retaliation claim.” Hoskins v.
Lenear, 395 F.3d 372, 375 (7th Cir. 2005). Defendants also cite to Williams v. Faulkner, 837
F.2d 304, 309 (7th Cir. 1988) for the proposition that: “Absent some statutory or regulatory
provision that clearly limits prison officials in the exercise of their discretion, a prisoner may be
transferred for any reason, or for no reason at all.” Glaringly absent from Defendant’s citation to
Williams is a footnote to that very sentence which states: “A well-established exception to this
broad grant of discretion is that prison officials may not transfer a prisoner in retaliation for his
exercise of a constitutionally protected right.”1 Thus, the fact that Plaintiff may not have a
free-standing constitutional right to a particular prison, or part of the prison, is not fatal to his
retaliation claim. See Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996).
In order to make out a retaliation claim, Plaintiff must show that “he suffered a deprivation
that would likely deter First Amendment activity in the future. . . . ” Bridges v. Gilbert, 557 F.3d
1 The Court cautions defense counsel to accurately cite to case law in briefs before this Court and
to include obviously relevant portions of case authority cited.
7
541, 546 (7th Cir. 2009). Plaintiff has presented evidence that the second floor of Building 19
was an undesirable location in the jail. Plaintiff avers that placement on the floor was used to
“punish offenders since many privileges available to offenders in general population are denied to
those on the second floor of building 19.” Thus, it is reasonable to assume that placement on the
second floor would deter additional First Amendment activity.
Defendants further argue that Plaintiff has not shown that his complaints were a motivating
factor in the transfer to the second floor and that Plaintiff only has alleged suspicious timing. In
non-prison contexts, “suspicious timing alone rarely is sufficient to create a triable issue.”
Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir. 2008) (internal editing,
quotation marks, and citation omitted). Plaintiff, however, has asserted more than just timing.
As noted above, he has recounted various statements by Defendants that may show retaliatory
motivation. Plaintiff also has presented evidence that a return to the second floor “had never been
done before and was an administrative decision in response to Plaintiff’s complaints . . . .” When
timing and the statements made by various Defendants and third parties is considered, Plaintiff has
presented sufficient facts from which a jury could conclude that his return to a permanent spot on
the second floor of Building 19 was in retaliation for his complaint.2
Notwithstanding this conclusion, the Court finds that Defendant Glenn Howard is entitled
to summary judgment. There is nothing in the Second Amended Complaint to suggest that
Lieutenant Howard’s conduct violated Plaintiff’s rights.
At most, the Second Amended
Complaint states that Lieutenant Howard was a supervisor and that he accepted a bed assignment
2 Plaintiff was subsequently moved to general population on December 5, 2010 and was “battered
by another inmate.” He subsequently was issued a ticket for providing false information and sent
to segregation. Plaintiff states, although obliquely, that the trip to segregation, and perhaps the
battery were also retaliatory acts perpetrated by Defendant Cox.
8
change request from Defendants Campbell and Bates. There is no indication that Lieutenant
Howard was aware of any grievances filed by Plaintiff, that he (or anyone) made any statements
regarding Plaintiff’s grievances or his motivation for accepting the submission of a bed change
request. That is, there is no evidence that Lieutenant Howard violated Plaintiff’s constitutional
rights.
CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment filed by Defendants on
April 12, 2012 (Doc. 76) is GRANTED IN PART and DENIED IN PART.
Judgment is GRANTED to Defendant Glenn Howard only.
Summary
Defendant Howard is hereby
TERMINATED and the Clerk is DIRECTED to enter judgment in favor of Defendant Howard
and against Plaintiff at the conclusion of this matter.
DATED: January 10, 2013
DONALD G. WILKERSON
United States Magistrate Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?