Burnside v. Mueller et al

Filing 42

ORDER GRANTING 31 MOTION for Summary Judgment filed by Lt. Johnson, Assistant Warden Kink, Warden Mueller, Warden Stock. The Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiff. Signed by Magistrate Judge Reona J. Daly on 7/9/2020. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN BURNSIDE,
Plaintiff,
v.
WARDEN MUELLER, ASSISTANT
WARDEN KINK, WARDEN STOCK, and
LT. JOHNSON,
Defendants.

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Case No. 18-cv-954-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff Brian Burnside brings this action pursuant to 42 U.S.C. § 1983 alleging his
constitutional rights were violated while he was incarcerated at Centralia Correctional Center
(“Centralia”). In his complaint, Plaintiff alleges he engaged in a hunger strike between October
18, 2017 and November 7, 2017. Plaintiff further alleges he was placed in segregation as a result
of engaging in a hunger strike. Plaintiff’s complaint was screened pursuant to 28 U.S.C. § 1915A
and he was allowed to proceed on the following claim:
Count One:

First Amendment claim against Defendants Mueller, Kink, Stock, and
Johnson for retaliating against Plaintiff for going on a hunger strike, by
placing him in “investigative status” segregation from October 27 to
November 7, 2017.

Defendants filed a motion for summary judgment on November 22, 2019 (Doc. 31).
Plaintiff filed a response (erroneously captioned as a motion for summary judgment) on January 6,
2020 (Doc. 36). For the reasons set forth below, Defendants’ Motion is GRANTED.
Factual Background
Plaintiff, while incarcerated at Centralia Correctional Center, declared a hunger strike on
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October 18, 2017 (Deposition of Brian Burnside, Doc. 32-1 at 14). Plaintiff testified he initiated
his hunger strike because Defendant Warden Mueller had previously told Plaintiff he would
reinstate thirty days of good conduct credit he lost due to a disciplinary ticket issued in June or July
2017 if Plaintiff did not receive any other tickets for thirty days (Id. at 14-16). Plaintiff testified
he did not receive any other tickets for any infractions for sixty days, but Defendant Mueller failed
to reinstate his good conduct credit (Id. at 15). After declaring his hunger strike on October 18,
2017, Plaintiff was housed in a crisis watch cell in the healthcare unit until October 21, 2017, when
he ended his strike (Id. at 21). Plaintiff ended this strike after he was told by Defendant Assistant
Warden Kink that Defendant Mueller would come speak to Plaintiff (Id. at 21-22). Defendant
Mueller did not come speak with Plaintiff, and he declared a second hunger strike on October 24,
2017 (Id. at 17). Plaintiff accepted food and ended his second hunger strike on October 27, 2017
(Id. at 18).
On October 27, 2017, Plaintiff was placed in segregation (Id. at 22). Plaintiff testified he
was moved to segregation in retaliation for asserting his right to protest and going on a hunger
strike (Id. at 23). Plaintiff testified Warden Kink told Plaintiff it was Kink’s decision to move him
to segregation and that it was his prison, not Plaintiff’s prison (Id.). Plaintiff also testified
Defendant Warden Mueller told him he “holds the keys to seg” and Plaintiff was becoming “a pain
in his ass by hunger striking” (Id.). Subsequently, on October 29, 2017, while in segregation,
Plaintiff declared his third hunger strike (Id. at 18). Plaintiff accepted food and ended his third
hunger strike on October 31, 2017 (Id. at 18-19).
Throughout this time, Plaintiff spoke to Defendants Mueller, Kink, and Stock on several
occasions between his hunger strikes (Id. at 47).

Plaintiff spoke to Defendant Mueller in

particular about the status of their agreement regarding the reinstatement of good conduct credit
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(Id. at 25). On October 30, 2017, Plaintiff spoke to the internal affairs lieutenant, whom Plaintiff
named as Defendant Lieutenant Johnson in this case (Id. at 13-14, 26-27).

Lieutenant

Christopher Johnson attests he was not employed as the internal affairs lieutenant at Centralia in
October 2017, and he was not involved in the placement of Plaintiff in segregation (Doc. 32-16 at
¶¶ 3, 5). At his deposition, Plaintiff testified he was not sure if Lt. Johnson is the correct
defendant, and reiterated he intended to sue the internal affairs lieutenant (Doc. 32-1 at 13-14). In
any event, Plaintiff testified he asked the internal affairs lieutenant how Plaintiff could be under
investigation when he had been isolated in the health care unit since October 18, 2017 (Id. at 27).
The internal affairs lieutenant told Plaintiff that the “warden is trying to push you out the door to go
home and it’s like you’re holding on to stay” (Id.).
In their statement of undisputed facts, Defendants assert Plaintiff was placed on
investigative status and placed in a segregation cell for his safety and security and the safety and
security of the facility because internal affairs received information that Plaintiff was “plotting
against the Wardens” (Doc. 32, Undisputed Material Facts at ¶ 10). In support of this statement,
Defendants rely on two incident reports that indicated Plaintiff was plotting against the wardens if
he lost good time for calling Centralia from another institution (see Docs. 32-7 and 32-8).
Defendants, however, failed to submit an affidavit or other document to properly authenticate the
incident reports. Szymankiewicz v. Doying, 187 F. App’x 618, 622 (7th Cir. 2006) (citations
omitted) (“To be admissible, documents must be authenticated by an affiant through whom the
exhibits could be admitted into evidence.”). As such, the Court will not consider these incident
reports.
Plaintiff was paroled on November 7, 2017 (Doc. 32-1 at 33).

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Summary Judgment Standard
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 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).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of
material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248). 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. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation
omitted).
Discussion
Plaintiff is proceeding in this action on a First Amendment retaliation claim against
Defendants Warden Mueller, Assistant Warden Kink, Assistant Warden of Programs Stock, and
Lt. Johnson by allegedly placing him in “investigative status” segregation from October 27 to
November 7, 2017 due to Plaintiff’s declaration of hunger strikes.
A prison official who takes action in retaliation for a prisoner’s exercise of a constitutional
right violates the Constitution. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). The
Seventh Circuit has articulated that for a plaintiff to prevail on a First Amendment retaliation
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claim, he must show that: (1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the
First Amendment activity was “at least a motivating factor” in the defendant’s decision to take the
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Woodruff v.
Mason, 542 F.3d 545, 551 (7th Cir. 2008)) (other citations omitted).
At the summary judgment stage, the Seventh Circuit has held that the burden of proving
causation is split between the parties. Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012).
Initially, in order to establish a prima facie case, the plaintiff must produce evidence that his
speech was at least a “motivating” factor in the defendant’s decision to take retaliatory action. Id.
Then, the burden shifts to the defendant to rebut the causal inference raised by the plaintiff’s
evidence and show that the harm would have occurred anyway, despite the protected activity. Id.
If the defendant fails to counter the plaintiff’s evidence, then the defendant’s retaliatory actions are
considered a “necessary condition” of the plaintiff’s harm, and the plaintiff has established the
“but-for” causation needed to succeed on his claim. Id.
As a preliminary matter, the Court addresses Defendant Lt. Johnson’s argument that he
was not personally involved in any deprivation of Plaintiff’s rights and, therefore, is entitled to
summary judgment. Liability under § 1983 is predicated on a defendant’s personal involvement
in the alleged constitutional violation. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir.
2003) (citations omitted). To be personally responsible, an official “must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye.” Knight v. Wiseman, 590 F.3d 458,
463 (7th Cir. 2009) (quoting Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006) (citing Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).

Defendant Johnson explains Plaintiff named him

as a defendant because Plaintiff believed he was the internal affairs lieutenant involved in placing
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him in segregation. Defendant Johnson correctly asserts that Plaintiff testified he is uncertain if
Christopher Johnson is the name of the internal affairs lieutenant. Defendant Johnson attests that
he was not employed as the internal affairs lieutenant in October 2017 and had no involvement in
the placement of Plaintiff in segregation. In his response to Defendants’ motion, Plaintiff asserts
the identity of the internal affairs officer has been concealed on purpose because he was told
Christopher Johnson was the name of the internal affairs lieutenant. Plaintiff, however, provides
no evidence to substantiate his claims or demonstrate that Defendants actively misrepresented or
failed to provide information to conceal the identity of the internal affairs lieutenant at Centralia in
October 2017.

Indeed, Plaintiff’s initial complaint named and identified Lt. Johnson as a

defendant in this matter, removing any doubt that Defendants acted nefariously in concealing the
identity of the proper defendant. Based on the evidence in the record, Christopher Johnson was
not personally involved in the alleged constitutional deprivation and summary judgment in his
favor is warranted.
Defendants Mueller, Stock, and Kink assert they are entitled to summary judgment on
Plaintiff’s First Amendment retaliation claim because Plaintiff did not suffer a deprivation likely
to deter First Amendment activity. Defendants also argue Plaintiff would have been placed in
segregation regardless of his protected activity.
Defendants assert Plaintiff’s eleven-day placement on investigative status in segregation
was not a deprivation likely to deter First Amendment activity. In determining whether a
deprivation is likely to deter First Amendment activity, the standard is whether a person of
ordinary firmness would be deterred from continuing to engage in protected conduct based on the
purported retaliatory conduct. Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011). In making this
determination, Defendants urge the Court to consider due process cases in which courts have noted
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that placement on investigative status does not give rise to a liberty interest under the Fourteenth
Amendment. See, e.g., Townsend v. Fuchs, 522 F.3d 765 (7th Cir. 2008) (“[W]e have concluded
that inmates have no liberty interest in avoiding transfer to discretionary segregation — that is,
segregation imposed for administrative, protective, or investigative purposes.”) (citations
omitted). The standard for a due process claim, however, is distinct from the standard considered
on a First Amendment retaliation claim, and the two standards should not be conflated. See
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (“To succeed on his retaliation claim,
[Babcock] need not establish an independent constitutional interest in either assignment to a given
prison or placement in a single cell, because the crux of his claim is that state officials violated his
First Amendment rights by retaliating against him for his protected speech activities.”) (quoting
Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (emphasis in original)). See also Bridges v.
Gilbert, 557 F.3d 541, 552 (7th Cir. 2009) (discussing Howland v. Kilquist, 833 F.2d 639, 644 (7th
Cir. 1987) (“[A]n act in 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.”)).
Although the Court declines to accept Defendants’ argument that the due process line of
cases should inform the undersigned’s decision on Plaintiff’s First Amendment claim, it is
nonetheless inclined to agree with Defendants that Plaintiff did not experience a deprivation likely
to deter First Amendment activity in the future.

Plaintiff was placed in segregation on

investigative status for a brief period — approximately eleven days. There is no evidence
concerning the conditions in his cell while in segregation. Plaintiff has also not set forth any
evidence concerning whether his privileges were restricted, whether he was allowed to shower,
attend religious services, or access property. Simply put, there is not enough evidence for a
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reasonable jury to find that Plaintiff’s placement in segregation for an abbreviated period of time
would likely deter a person of ordinary firmness from engaging in protected activity. See, e.g.,
Pendegraft v. Butalid, Case No. 3:15-cv-816-NJR-DGW, 2018 WL 1565613, at *14 (S.D. Ill.
Mar. 30, 2018) (finding the plaintiff’s placement in segregation for a week and a half without any
evidence as to the conditions in segregation insufficient to demonstrate a deprivation likely to
deter a person of ordinary firmness from engaging in protected activity). But see McKinley v.
Schoenbeck, 731 F. App’x 511 (7th Cir. 2018) (finding the plaintiff’s placement in administrative
detention for over three years in a cell without heat or hot water and littered with rodent feces and
dust satisfied the burden to prove an adverse action likely to deter future First Amendment
activity); Cullum v. Godinez, No. 3:14-cv-00012-SMY-PMF, 2016 WL 304865, at *1 (S.D. Ill.
Jan. 25, 2016) (explaining that a jury could find that the plaintiff had suffered a deprivation likely
to deter future protected activity where he spent thirty days in segregation unit, lost gym and yard
privileges for thirty days, lost access to commissary privileges for thirty days, had his security
level demoted, and lost some personal items).
Conclusion
Based on the foregoing, the Motion for Summary Judgment filed by Defendants Johnson,
Kink, Mueller, and Stock (Doc. 31) is GRANTED. The Clerk of Court is directed to enter
judgment in favor of Defendants and against Plaintiff.
IT IS SO ORDERED.
DATED: July 9, 2020
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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