Shehadeh v. Cox et al

Filing 126

ORDER DENYING 116 MOTION for Summary Judgment filed by Campbell, Howard, John Cox, Charles Bates, Norman Suits. Final Pretrial Conference set for 10/16/2013 02:00 PM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson, Jury Trial set for 10/28/2013 09:00 AM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson. Signed by Magistrate Judge Donald G. Wilkerson on 8/1/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMAL SHEHADEH,

)
)
Plaintiff,
)
)
v.
)
)
JOHN COX, BRETT CAMPBELL, NORMAN )
SUITS, and CHARLES BATES,
)
)
Defendants.
)

Case No. 3:10-cv-985-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion for Summary Judgment filed by Defendants
on January 25, 2013 (Doc. 116). For the reasons set forth below, the Motion is DENIED.
BACKGROUND
In a January 10, 2013 Order, this Court considered Defendants’ Motion for Summary
Judgment on the ground of qualified immunity (Doc. 113). In finding that the Defendants were
not entitled to qualified immunity, this Court necessarily considered the evidence in this case
which consisted of, at that time, the Second Amended Complaint which was in the form of an
affidavit. This Court found certain facts based on that affidavit: First, that Plaintiff complained of
the living conditions of the second floor of building 19 by filing grievances; Second, that the
conditions on the second floor were less desirable than the conditions on the third floor or the rest
of the prison; Third, that he was moved to the third floor where he continued to complain about the
living conditions to every correctional officer he came into contact with; Fourth, that he was
returned to the second floor and that he believed that the move was permanent; Fifth, that at the
time he was moved back to the second floor, Defendant Bates made comments that indicated he

was being moved because of his complaints and that Defendants Campbell, Cox, and Suits
concurred with the transfer; and, Sixth, that third party correctional officers also made statements
that he was being moved because of his complaints. Thus this Court found that a jury could
conclude, based on this evidence, that Plaintiff had been retaliated against on account of his
complaints as to living conditions by being transferred to an undesirable location in the prison.
Defendants have filed another Motion for Summary Judgment, now on the merits, stating
that Plaintiff has not presented any evidence of retaliation. To support their argument, they point
to their own affidavits:
1. Defendant Cox states that as the Warden of Vienna Correctional Center during
the relevant time period, he was not “personally involved in the transfer of inmates
to different cells or different housing units” (John Cox Aff. ¶ 3).
2. Defendant Campbell states that he also was not personally involved in
Plaintiff’s transfer (Brett Campbell Aff. ¶ 4).
In addition, Carri L. Sisk, an office administrator who is familiar with inmate master files, avers
that after reviewing Plaintiff’s file, she did not find a grievance filed by Plaintiff at the institution
level regarding the allegation made in this case (Carri L. Sisk Aff. ¶ 7). She did however become
aware that Plaintiff submitted a grievance directly to the Administrative Review Board on
November 26, 2010 (Doc. 117-4, p. 2-3). Defendants offer no argument as to the evidentiary
value of statements made in Plaintiff’s affidavit nor do they offer any evidence that would counter
Plaintiff’s contention that the living conditions on the second floor of building 19 were markedly
worse than the conditions on the third floor or the other housing at Vienna CC.

2

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.
“[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.
3

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
As indicated in this Court’s previous Order, “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.”).
This Court already has found that Plaintiff has presented sufficient evidence to reach a jury
4

on the question of whether he was retaliated against for complaining about the conditions of the
second floor of building 19. The evidence presented by Defendants merely highlights that there
are material facts in dispute: Defendants Cox’s and Campbell’s personal involvement in Plaintiff’s
transfer and the fact of whether Plaintiff made any complaints protected by the First Amendment.
While Plaintiff’s evidence is not, by any means, overwhelming,1 such factual disputes necessitate
a trial.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment filed by Defendants on
January 25, 2013 (Doc. 116) is DENIED. This matter is SET for a Final Pretrial Conference
on October 16, 2013 at 2:00 p.m.. This matter is further SET for a Jury Trial commencing
October 28, 2013 at 9:00 a.m.

IT IS SO ORDERED.
DATED: August 1, 2013

DONALD G. WILKERSON
United States Magistrate Judge

1

Plaintiff’s evidence essentially consists of hearsay statements. However, Defendants have not
argued that these statements are not admissible; therefore, the Court will, at this stage of the
litigation, accept that they are admissible.
5