Neal v. Veath et al
Filing
53
ORDER denying 34 Motion for Summary Judgment. Signed by Magistrate Judge Stephen C. Williams on 3/27/2017. (rms2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER NEAL,
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Plaintiff,
vs.
TIMOTHY VEATH,
JASON N. HART,
and REBECCA COWEN,
Defendants.
Case No. 14-cv-1185-SCW
MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
INTRODUCTION
Acting pro se, incarcerated inmate Christopher Neal filed the present lawsuit
pursuant to 42 U.S.C. § 1983. Plaintiff, who is incarcerated at Menard Correctional
Center (“Menard”), alleges that the Menard officials named as defendants violated his
First and Fourteenth Amendment rights when he was sentenced to six months of
disciplinary segregation after a fight in the Menard lunchroom.
He alleges that,
unbeknownst to him until after the sentence, an additional offense was added to his
disciplinary ticket.
This matter is now before the Court on the Defendants’ Motion for
Summary Judgment (Doc. 34). For the reasons articulated below, Defendants’ Motion
for Summary Judgment (Doc. 34) is DENIED.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure governs summary judgment
motions. The rule states that summary judgment is appropriate only if the admissible
evidence considered as a whole shows there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Archdiocese of Milwaukee v.
Doe, 743 F.3d 1101, 1105 (7th Cir. 2014) (citing FED.R.CIV.P. 56(a)). The party seeking
summary judgment bears the initial burden of demonstrating – based on the pleadings,
affidavits and/or information obtained via discovery – the lack of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of
material fact remains “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Accord Bunn v. Khoury Enterpr. Inc., 753 F.3d 676 (7th Cir. 2014).
In assessing a summary judgment motion, the district court views the facts in the
light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012); Righi v. SMC Corp. , 632
F.3d 404, 408 (7th Cir. 2011); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).
As the Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by
examining the evidence in the light reasonably most favorable to the non-moving party,
giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the
evidence in [his] favor.” Spaine v. Community Contacts, Inc., 756 F.3d 542 (7th Cir.
2014).
FACTUAL AND PROCEDURAL BACKGROUND
The events leading to this lawsuit began in June 2009. From May 23 to June 19 of
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that year Plaintiff was in segregation due to an investigation relating to the healthcare
unit at Menard. (Doc. 35-1, p. 6). After being released from segregation, Plaintiff made
his way to the healthcare unit where he was an inmate worker. (Id.). Before he could
arrive there, however, he was stopped by Defendant Timothy Veath, who was a
lieutenant and supervisor of the Menard healthcare unit. (Id. at 4, 6).
Veath would
not allow Plaintiff to return to work in the healthcare unit, and told Plaintiff that he was
responsible for sending Plaintiff to segregation. (Id. at 7; Doc. 41, p. 4). Veath then sent
Plaintiff to the North 1 shower, and a few days later Plaintiff was transferred to Stateville
Correctional Center (“Stateville”).
(Doc. 35-1, p. 7).
After his encounter with
Defendant Veath, and prior to the transfer to Stateville, Plaintiff filed two grievances:
one for Veath’s actions in preventing him from returning to work, and the other for the
investigation that placed Plaintiff in segregation in the first place. (Id.). Plaintiff filed
the grievance in the ordinary course by placing the grievances in the grievance box on
his way to chow. (Id. at 8). He was sent to Stateville only a few days later, and he
never received responses or heard anything more regarding the two grievances. (Id.).
Plaintiff returned to Menard in January of 2013. (Id.). On October 17, 2013,
Plaintiff had an altercation with another inmate in the chow hall that resulted in a
warning shot being fired by a guard. (Id. at 10). As a result of the fight, Plaintiff was
issued a disciplinary ticket. (Id.). The ticket given to Plaintiff was prepared by a C/O
Anthony and charged Plaintiff with “301-Fighting”. (Id. at 9, 22). On October 23, 2013,
Plaintiff was brought before the Menard adjustment committee for a hearing on his
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charges. (Id. at 11). Present at the hearing were Lt. Veath, Jason Hart, and Rebecca
Cowan. (Id.) While Plaintiff “assumed” that all three of these individuals were on the
adjustment committee, the committee’s Final Summary Report indicates that only Veath
and Hart were members. (Id. at 12, 24).
When Plaintiff entered the room where the committee had convened, Lt. Veath
said, “Mr. Neal, you’re back with us, huh? What are you here for?” (Id. at 12).
Defendant Cowan then indicated that she was looking for his ticket, upon which
Veath, presumably after looking at the ticket, asked, “Oh, you had a fight?” (Id.).
Plaintiff then said, “Veath, you ain’t even got to go through that, man. I plead
guilty, man.” (Id.). He continued, “It’s nothing, man. You ain’t got to read off of
nothing.” (Id.). Plaintiff made this statement because, from the ticket he had been
given, he already knew with what he had been charged, and because “Veath was not
trying to hear anything.”
(Id; Doc. 41, p. 1).
Additionally, according to Plaintiff,
Defendant Cowan stated, “All he’s got is a fighting ticket.” (Doc. 35-1, p. 12).
Defendant Veath then told Plaintiff to stop fighting in the chow hall, and Plaintiff
apologized and left. (Id.). At no point during the hearing did anyone read the ticket to
Plaintiff. (Id.). The encounter at the Adjustment Committee hearing was the first time
that Plaintiff had seen or interacted with Defendant Veath since Plaintiff’s return to
Menard. (Id. at 8).
Plaintiff was placed in segregation, but was not told the specific results of the
hearing. (Id. at 13). He assumed that he would be in segregation for thirty days, but
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later, after asking an officer to check what day he was to be released, he found out that
he had been sentenced to six months in segregation. (Id.). While the ticket that was
provided to Plaintiff before the adjustment committee hearing indicates that he was
charged with only “301-Fighting”, the summary report from the committee indicates
that Plaintiff was charged with and pled guilty to “Fighting” and “Dangerous
Disturbances.” (Id. at 24). The discipline recommended by the committee, and later
finalized, was a demotion to C Grade, placement in segregation, and a commissary
restriction, all for six months. (Id.). The “Nature of Offense” is given as the basis for
the discipline. (Id.).
Unlike the ticket given to Plaintiff, another ticket, which appears to have been
used by the adjustment committee, contains a charge for “105-Dangerous Disturbance.”
(Id.). While the charge for “Fighting” on this ticket is type-written, the “Dangerous
Disturbance” charge appears to be hand-written. (Id.). Plaintiff did not know about
the Dangerous Disturbance charge prior to finding out about the six month segregation
sentence. (Id. at 13). He filed grievances relating to the additional charge and his
sentence, and the Dangerous Disturbance charge was eventually expunged by the
IDOC’s Administrative Review Board (“ARB”).
(Id. at 25).
The ARB reduced
Plaintiff’s sentence to one month C Grade, segregation, and commissary restriction.
(Id). By the time the ARB issued its ruling, however, Plaintiff had already served his six
months in segregation. (Id. at 14).
During his deposition, other than stating that segregation is more restrictive, in
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that, for instance, an inmate cannot visit commissary or have telephone privileges or
contact visits while in segregation, Plaintiff gave little description regarding the
conditions of his segregation.
(Id. at 17).
In response to Defendants’ motion for
summary judgment, however, Plaintiff states that during his time in segregation, he was
placed in a strip cell for suicide watch (a status for which he was not recommended) that
was covered in feces and urine and had a non-working toilet. (Doc. 41, p. 2).
Plaintiff filed suit in this Court pursuant to 42 U.S.C. § 1983, and in in his merits
review order pursuant to 28 U.S.C. §1915A, Judge Gilbert found that Plaintiff had
successfully pleaded the following two counts:
Count 1: Defendants Veath, Hart, and Cowan violated Plaintiff’s right to
due process of law in connection with the 105-Dangerous Disturbance
charge and in violation of the Fourteenth Amendment;
Count 3: Defendants Veath, Hart, and Cowan retaliated against Plaintiff
for filing grievances in violation of the First Amendment.
(Doc. 8). Defendants now seek summary judgment on those claims.
DUE PROCESS CLAIM
In order for a prisoner to recover on a claim challenging the process afforded in a
prison disciplinary proceeding, the facts must demonstrate (1) constitutionally deficient
procedural due process as to the proceeding, and (2) a resulting deprivation of a liberty
or property interest caused by the defendants. Scruggs v. Jordan, 485 F.3d 934, 939 (7th
Cir. 2007). As to the second factor, Placement in disciplinary segregation implicates a
liberty interest when the conditions of segregation impose “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
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Connor, 515 U.S. 472, 485 (1995).
In determining whether a liberty interest is
implicated, courts look to “the combined import of the duration of the segregative
confinement and the conditions endured.” Hardaway v. Meyerhoff, 734 F.3d 740, 743
(7th Cir. 2013) (quoting Marion v. Columbia Correctional Inst., 559 F.3d 693, 697 (7th
Cir. 2009) (“Marion I”)) (emphasis in original) (internal quotations omitted).
Viewing the record in the light most favorable to Plaintiff, a reasonable juror
could find that the conditions of Plaintiff’s segregation imposed upon Plaintiff an
atypical and significant hardship in relation to the ordinary incidents of prison life.
Though it is only briefly mentioned in his pro se response, Plaintiff’s claim that the walls
of his cell in segregation were covered in feces and urine is enough for the implication of
a liberty interest. Though Plaintiff does not indicate if he was in the cell covered in
feces and urine for his entire stay in segregation, in viewing the facts most favorably to
Plaintiff, one can infer that he was in that dirty cell for the duration of his segregation.
A six month stay in a cell with the walls covered in feces and urine and a non-working
toilet constitutes an atypical and significant hardship on Plaintiff in relation to the
ordinary incidents of prison life. Though Plaintiff mentioned these conditions only in
his Response to the summary judgment motion, the statement in his Response is
sufficient to create a question of fact as to the condition of his segregation cell.
Since a reasonable juror could find that Plaintiff suffered a deprivation of a liberty
interest, the Court must examine the issue of whether the process that resulted with
Plaintiff ending up in segregation was constitutional. Procedural due process in the
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prison context requires (1) advanced written notice of the charge against an inmate; (2)
the right to appear before an impartial hearing panel; (3) the right to call witnesses and
present documentary evidence if prison safety allows; and (4) a written statement of the
reasons for the discipline imposed. Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974).
In addition, the disciplinary decision must be supported by “some evidence.” Black v.
Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). A mere meager amount of supporting evidence
is sufficient to satisfy this due process inquiry. Scruggs, 485 F.3d at 941. The “some
evidence” standard falls below the preponderance of the evidence standard, and only
requires a decision not to be arbitrary or without support in the record. McPherson v.
McBride, 188 F.3d 784, 786 (7th Cir. 1999). A disciplinary decision must have “some
factual basis.” Id. In addition, the evidence relied in reaching the disciplinary decision
must “bear some indicia of reliability”.
Scruggs, 485 F.3d at 941.
While a court
reviewing a prison disciplinary proceeding will not consider exculpatory evidence
solely because it could have supported a result different from the one reached by the
board, it must satisfy itself that the evidence the board relied on bears the “sufficient
indicia of reliability”. Meeks v. McBride, 81 F.3d 717, 721 (7th Cir. 1996) (quoting Viens
v. Daniels, 871 F.2d 1328, 1335 (7th Cir. 1989)) (internal quotations omitted).
A reasonable juror could find that Plaintiff was not afforded proper procedural
due process. A jury could find that Plaintiff was not given advanced written notice of
the Dangerous Disturbance charge. The facts reasonably viewed in Plaintiff’s favor
indicate that when Plaintiff pleaded guilty at the Adjustment Committee hearing, he
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reasonably believed he was only pleading guilty to the fighting charge since the
disciplinary ticket Plaintiff received prior to the hearing only contained a charge for
fighting. Further, at the hearing, Defendant Cowan stated that the only charge against
Plaintiff was for fighting, and there is no evidence indicating that Plaintiff was shown a
copy of his ticket or otherwise informed of the Dangerous Disturbance charge at any
time during the hearing. As such, the facts viewed in Plaintiff’s favor indicate that
Plaintiff was not informed of the Dangerous Disturbance charge prior to the disciplinary
hearing.
Though Plaintiff essentially entered a guilty plea before the committee
presented the evidence against him, Plaintiff did so in reliance on the earlier disciplinary
ticket containing only the fighting charge. Given Defendant Cowan’s statement in
particular, a reasonable inference can be drawn that the Dangerous Disturbance charge
was arbitrarily added after Plaintiff plead guilty, and Due Process protections are in
place to prevent arbitrary state action. See Goss v. Lopez, 419 U.S. 565, 574 (1975) (“The
Due Process Clause also forbids arbitrary deprivations of liberty.”) Further, since all
Defendants were a part of the Adjustment Committee’s proceedings, a jury could
reasonably find that any or all of them participated in, condoned, or facilitated a
violation of Plaintiff’s Due Process rights.
Additionally, as the Supreme Court has
expressly indicated that an inmate must be given advanced notice of a disciplinary
charge prior to a hearing, the Defendants are not entitled to qualified immunity. See
Wolff, supra. Given the Court’s analysis, summary judgment is not appropriate as to
Plaintiff’s Due Process claim.
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FIRST AMENDMENT RETALIATION
An inmate has a constitutional right to file a grievance as part of his right of access
to the courts under the First Amendment. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.
2000). Retaliatory official action violates the Constitution, even if the officer would be
otherwise authorized to take that action in the absence of a retaliatory motive.
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). In a First Amendment case, the
burden of proof is split between the parties. Mays v. Springborn, 719 F.3d 631, 634 (7th
Cir. 2013) (citing Mt. Healthy Board of Education v. Doyle, 429 U.S. 274 (1977)). First,
Plaintiff must show that defendant’s conduct was sufficient to cause the injury, that is,
that the protected First Amendment conduct was a motivating factor for taking the
retaliatory action. Id. at 635. The burden then shifts to defendant to rebut by showing
that the action would have occurred anyway, regardless of the improper motive. Id.
The inquiry is a question of fact. Ustrak v. Fairman, 781 F.2d 573, 578 (7th Cir. 1986).
Evidence that shows that a prisoner did not violate the regulation can show retaliation.
Hale v. Scott, 371 F.3d 917, 920 (7th Cir. 2004).
The Court finds there is sufficient evidence for Plaintiff to recover on his
retaliation claim.
The fact that Defendant Veath’s first contact with Plaintiff after
Plaintiff’s return to Menard in 2013 was at the Adjustment Committee hearing wherein
Plaintiff unknowingly received the Dangerous Disturbance charge, combined with
Veath’s comments about Plaintiff being back at Menard, leads to a reasonable inference
that Defendant Veath added the charge after Plaintiff’s guilty plea in retaliation for
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Plaintiff filing grievances against Veath. The jury could also infer that Defendants
Cowan, and Hart participated in, facilitated, or condoned the retaliatory conduct.
Defendants fall short in their argument that the alleged act of retaliation was too
far separated in time from the protected speech to allow Plaintiff to recover as a matter of
law. Defendants rely on the Seventh Circuit’s decision in Kidwell v. Eisenhauer, 679
F.3d 957 (7th Cir. 2012) in making this argument; however, Kidwell is distinguishable
from the case at-bar. Kidwell involved a suit brought by a police officer for retaliation in
the employment context. There, Mr. Kidwell was the subject of an adverse employment
action over a year after he participated in protected speech at a union meeting.
Kidwell, 679 F.3d at 961, 963. The court held that the extended gap in time between the
protected speech and the adverse employment action “militate[d] against” the allowance
of an inference of causation between the two. Id. at 967. Moreover, the court found
that there were several superseding events, including Mr. Kidwell’s negative behavior,
subsequent to the protected speech that caused the adverse employment action. Id. at
969.
In the case at-bar, though there was a large gap of time between Plaintiff’s
protected speech and the Adjustment Committee hearing, an inference of retaliation
may still be reasonably drawn.
The Plaintiff in Kidwell was constantly under the
authority of those who took the adverse employment action against him, and therefore
the fact that there was more than a year between Kidwell’s protected speech and the
adverse action suggests that something other than the speech was the cause of the
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adverse action. Here, however, Plaintiff was not constantly in contact with Defendant
Veath, as Plaintiff was transferred from Menard for a long period of time. What the
Court finds important in the context of Plaintiff’s suit is the question of what
opportunities Defendant Veath had to take adverse actions against Plaintiff following the
protected speech compared to when he actually took the adverse action. Plaintiff’s
undisputed testimony is that Plaintiff did not see or interact with Defendant Veath upon
his return to Menard until the Adjustment Committee hearing. Therefore, the facts
viewed in Plaintiff’s favor allow for the inference that Veath took the adverse action of
secretly adding the Dangerous Disturbance charge to Plaintiff’s ticket at the first
opportunity he had to adversely impact Plaintiff after Plaintiff filed grievances against
him. As such, since the adverse action took place at the first opportunity after Plaintiff’s
protected speech, the length of time between the two does not preclude Plaintiff’s
retaliation claim as a matter of law.
Given the above analysis, a jury could reasonably infer that Defendant Veath,
along with the participation, facilitation, or condoning of the other defendants, secretly
added and convicted Plaintiff for a charge of Dangerous Disturbance in retaliation for
grievance filed by Plaintiff against Veath.
At this point, the burden shifts to the
Defendants to demonstrate that Plaintiff would have received the same charge with or
without the retaliatory motive. That question, however, is a question of fact and must
be decided by a jury. Additionally, the Defendants’ argument that they are entitled to
qualified immunity is essentially based on an assertion that there is a lack of evidence of
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retaliatory motive by the Defendants. As already indicated, the Court finds otherwise.
Summary judgment is not appropriate as to Plaintiff’s retaliation claims.
CONCLUSION
For the reasons stated above, a reasonable trier of fact could find for Plaintiff on
both his Due Process and First Amendment retaliation claims. Therefore, Defendants’
Motion for Summary Judgment (Doc. 34) is DENIED. This matter will be set for a Final
Pretrial Conference by a separate order.
IT IS SO ORDERED.
DATED: 3/27/2017
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge
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