SMITH v. PETERS et al

Filing 114

ORDER granting 103 Motion for Summary Judgment. Judgment consistent with this entry shall now ensue. Signed by Magistrate Judge William G. Hussmann, Jr., on 12/6/2012. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
ANTHONY L. SMITH,

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Plaintiff,
v.
TAMMIE POPE,
PAULA MITCHELL,
CRAIG GEORGE,
CHRIS MITCHELL,
Defendants.

3:09-cv-101-WGH-RLY

ENTRY ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiff, Anthony Smith, sued Defendants Tammie Pope, Paula Mitchell,
Chris Mitchell, and Craig George (collectively, “Defendants”), employees with
the Indiana Department of Corrections (IDOC), in their individual capacities
under 42 U.S.C. § 1983 (“section 1983”). Smith alleged that by subjecting him
to unsafe hard labor, Defendants violated his Eighth Amendment rights by
subjecting him to work that constituted cruel and unusual punishment
(Plaintiff’s Complaint at 12-13), and his First Amendment rights by retaliating
against him after exercising constitutionally protected conduct. (Plaintiff’s
Amended Complaint at 9-12, 22). Defendants have moved for summary
judgment. (Docket No. 103). Plaintiff filed a response on October 5, 2012.
(Docket No. 109). No reply brief was filed. For the reasons set forth below,
their motion is GRANTED.

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I. Factual Background and Procedural History
Smith was an inmate at IDOC’s Branchville Correctional Facility
(“Branchville). (See, e.g., Affidavit of Tammie Pope (“Pope Aff.”) ¶ 11). He had
previously worked in the kitchen and as a recreation worker at Branchville, but
was fired from both those jobs. (Deposition of Anthony L. Smith (“Smith Dep.”)
at 17-20). After being fired as a recreation worker, in December 2008, Smith
met with Tammie Pope, a Correctional Case Worker, who informed Smith that,
despite his protest, he would be working on the “stump crew.” (Pope Aff. ¶¶
11-16; Smith Dep. at 35-37). The stump crew was responsible for removing
the stumps of approximately 30 felled trees from Branchville. (Pope Aff. ¶ 14).
When the stump crew was utilized, approximately 25 inmates would be
assembled to work. (Smith Dep. at 54). The crew was given coats, coveralls,
“toboggans,” and safety glasses, although sometimes there were not enough
safety glasses for each inmate. (Id. at 55, 61). The crew was given shovels,
pickaxes, and axes. (Id. at 54).
Smith worked on the stump crew no more than five times between
January 1 and March 11, 2009. (Smith Dep. at 43, 51).1 In February 2009,
Smith met with Pope about the informal grievance he filed regarding his
assignment to the stump crew. Pope informed Smith that she was not
responsible for his assignment. (Pope Aff. ¶¶ 17-19). On March 9, the
temperature was between 39 and 60 degrees, and on March 11, the

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Some portions of the record indicate Smith was placed on the stump crew four
times between January and March 2009. (See, e.g., Smith Dep. at 87-88). However, it
is undisputed that two of those times were March 9 and 11, 2009. (Smith Dep. at 51).

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temperature ranged from 33 and 57 degrees. (Defendants’ Ex. 2 at 1, 6).
Smith was reinstated as a recreation worker in April 2009. (Smith Dep. at 2324).
On June 16, 2009, Paula Mitchell, then the Branchville law librarian,
told Smith in front of Craig George, the recreation supervisor, that he could not
use the law library during his working hours, as he had been doing previously.
(Affidavit of Paula Mitchell (“Paula Mitchell Aff.”) ¶ 15). Mitchell repeated this
message to Smith on June 23, 2009, and he was fired from his position as a
recreation worker the next day. (Id. ¶¶ 16-17).
Smith filed his initial claim on July 31, 2009, against several Branchville
employees, including Tammie Pope, in their individual and representative
capacities under section 1983. (Docket No. 1). He alleged violations of his
Fourteenth Amendment procedural due process and that the Branchville
employees subjected him to cruel and unusual punishment in violation of his
Eighth Amendment rights. (Id. at 12-21). Smith sought injunctive relief,
compensatory damages, and punitive damages (id. at 6), but conceded his
claim for injunctive relief was moot once he was transferred to the Putnamville
Correctional Facility in May 2010. Smith v. Peters, 2012 WL 266950, at *1
(S.D. Ind. Jan. 27, 2012); (Smith Dep. at 14). Smith later amended his
complaint to include 11 additional Defendants, including Paula Mitchell, Chris
Mitchell, and Craig George. (Docket No. 11 at 1-2). Smith alleges that Paula
Mitchell and George had violated his First Amendment rights by retaliating

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against him for his grievances and complaints when they restricted his access
to the law library. (Id. at 9-13). He stated that Paula Mitchell was “very rude,
used unprofessional language, and even threatened to send Smith to the hole.”
(Id. at 9). He also claims that George admitted the ban on workers using the
law library during work hours was an upcoming change, yet Smith was still not
allowed to use the law library. (Id. at 11). Finally, he alleges that Chris
Mitchell conspired with George to restrict Smith’s library time “by eliminating
idle prisoners’ use of request slips for additional time in the law library.” (Id. at
22).
Smith’s case was initially dismissed for failure to state a claim pursuant
to 28 U.S.C. § 1915A (Docket No. 12); that ruling was subsequently reversed
and remanded by the Seventh Circuit with respect to Smith’s First and Eighth
Amendment claims. Smith v. Peters, 631 F.3d 418 (7th Cir. 2011). On
remand, Smith limited his action to Eighth Amendment claims against Gil
Peters, Richard Newton, and Pope and First Amendment retaliation claims
against George, Paula Mitchell, and Chris Mitchell. Smith 2012 WL 266950, at
*1. Claims against all Defendants in their official capacities were dismissed,
and claims against Newton and Peters in their individual capacities were
dismissed as well. Id. at *2-3. The remaining Defendants—Pope, George,
Paula Mitchell, and Chris Mitchell—now move for summary judgment.
Additional facts will be supplied as necessary.

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II. Legal Standard
A. Summary Judgment Standard
Summary judgment is appropriate “if the movant shows 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). The moving party bears the burden
of demonstrating the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 325, 106 S.Ct 2548, 91 L.Ed.2d 265 (1986). The
non-moving party, however, may not rest on mere allegations or denials in its
pleadings, but rather must set forth specific facts showing that there is a
genuine issue for trial. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A genuine issue of material fact exists if “there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson, 477 U.S. at 249. Stated differently, only disputes over material
facts—i.e., “facts that might affect the outcome of the suit under the governing
law”—will preclude the entry of summary judgment. Id. at 248. When
determining whether a genuine issue of material fact exists, the court views the
record and draws all reasonable inferences in the light most favorable to the
nonmoving party. Id. at 255 (citation omitted).
B. 42 U.S.C. § 1983 Standard of Review
To sustain a civil rights claim against state officials under section 1983,
a plaintiff must demonstrate the following: “(1) [Smith] held a constitutionally
protected right, (2) he was deprived of that right in violation of the Constitution,

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(3) [defendants] intentionally caused that deprivation and (4) [defendants] acted
under color of state law.” McNabola v. Chicago Transit Authority, 10 F.3d 501,
513 (7th Cir. 1993) (internal quotation omitted). Smith must allege that each
defendant was directly responsible for depriving him of a constitutional right.
Moore v. Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993). A claim cannot be
sustained on the grounds of vicarious liability or respondeat superior. See, e.g.,
Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 691, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978).
III. Discussion
A. Does Smith have an actionable claim against Pope for Eighth
Amendment violations?
Smith alleges that Pope, acting under color of law and with deliberate
indifference, violated his Eighth Amendment protection against cruel and
unusual punishment by classifying him “to the unsafe, hard labor job of the
[stump crew], thereby exposing Smith to an unreasonable risk of serious
harm.” (Plaintiff’s Complaint at 12). He further alleged that by assigning him
to stump crew without providing adequate training, tools, or safety and
protective gear, Pope acted with deliberate indifference by ignoring an obvious
danger. (Id. at 13). Finally, her failure to intervene to keep Smith off stump
crew on March 9 and 11, 2009, after Smith filed an informal grievance in
February 2009, constituted reckless disregard. (Id.). Smith claims to have
suffered severe emotional and mental pain and suffering and pain resulting

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from working in freezing temperatures, which he claims “transform[ed] the task
into physical torture.” (Id.).
For a prisoner to adequately state a claim of cruel and unusual
punishment from deliberate indifference under section 1983, a plaintiff must
allege facts which could prove that: (1) the injury is “sufficiently serious” to
deprive him of the “minimal civilized measures of life’s necessities” (objective
component); and (2) the defendants in question acted with a “sufficiently
culpable state of mind (subjective component).” Farmer v. Brennan, 511 U.S.
825, 832, 834, 110 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotations
omitted). Defendants allege that Smith can prove neither of these elements.
1. Did Smith suffer an actual or sufficiently serious
threatened injury?
Defendants claim that Rhodes v. Chapman (452 U.S. 337, 101 S.Ct.
2392, 69 L.Ed.2d 59 (1981)) dictates the court’s approach to whether an injury
has been suffered in a deliberate indifference claim. Prison conditions must
not wantonly or unnecessarily inflict pain, nor can they be “grossly
disproportionate to the severity of the crime warranting imprisonment.” Id. at
347. However, restrictive and harsh conditions do not themselves create an
actionable Eighth Amendment violation claim (id. at 347, 352), and neither
does an inmate’s preference for clerical rather than manual labor. See, e.g.,
Jackson v. O’Leary, 689 F. Supp. 846 (N.D. Ill. 1988). Moreover, courts are to
be highly deferential to legislatures and prison officials in allowing them to
handle their internal affairs. U.S. ex rel. Miller v. Twomey, 479 F.2d 701, 713

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n.25 (7th Cir. 1973). Therefore, Smith must show that his work on stump crew
caused him actual injury or threatened him with severe injury to survive
summary judgment on his Eighth Amendment violation claim.
Smith claims to have suffered abraded hands and blisters on his hands
as a result of his work on stump crew. (Plaintiff’s Complaint at 13). The
Seventh Circuit has already ruled that Smith’s blisters could have been caused
by “handling stump removal tools without gloves” or could have been
“precursors to or consequences of frostbite.” Smith v. Peters, 631 F.3d 418,
420 (7th Cir. 2011). Smith argues that the “law of the case” doctrine makes
this holding binding on the trial court on remand. (Plaintiff’s Response at 3536). The law of the case doctrine states that once an “appellate court expressly
or by necessary implication decides an issue, the decision will be binding upon
all subsequent proceedings in the same case.” Key v. Sullivan, 925 F.2d 1056,
1060 (7th Cir. 1991). Smith is correct that the law of the case doctrine applies
to this case on remand, but is incorrect about its scope. The Seventh Circuit
stated that “the allegations of the complaint are sufficient to preclude dismissal
for failure to state a claim.” Smith, 631 F.3d at 420. The standard for an
adequately pleaded claim to survive summary judgment (stated supra) is much
higher than the “plausible claim for relief” standard to survive a motion to
dismiss at the initial pleading stage. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009). Therefore, the law of the case doctrine
merely prevents Defendants from relitigating whether Smith has pleaded a

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plausible claim for relief; it has no bearing on whether Smith’s claim survives
summary judgment.
Pope claims that stump crew was never so dangerous, either in the work
or in the outside conditions in which it took place, to constitute a serious
threat of injury. (Pope Aff. ¶¶ 21, 26). She also states that the safety and other
equipment Branchville provided kept Smith reasonably safe from injury either
from the work or the outside conditions. (Pope Aff. ¶¶ 20, 22). Therefore, the
work was not dangerous or exceedingly difficult, and “Pope and the prison
officials did not inflict wanton or unnecessary pain on Plaintiff.” (Defendants’
Memorandum at 15-16). However, Smith has produced his deposition
testimony, in which he claimed that the safety training was inadequate, he did
not have gloves or coveralls every time he was on stump crew, and that the
type of tools being used (shovels and pickaxes) without adequate training
created a hazardous work environment. (Smith Dep. at 53-56, 58-59, 61-62).
Without documentation of training protocols or procedures on how safety
equipment is distributed, the court agrees with Smith that it is at least a
disputed fact as to whether his work conditions caused his injuries. (Plaintiff’s
Response at 41 (citing Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per
curiam)).
As to the issue of whether the injury was so severe as to deprive him of
“the minimal civilized measures of life’s necessities” (Farmer, 511 U.S. at 834),
the court takes note of the Seventh Circuit’s dicta, in which Judge Posner
stated “[o]ur prison system is not the gulag” (Smith, 631 F.3d at 420) and

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refused to hold that the allegations of blisters could not constitute a plausible
claim for relief under the Eighth Amendment. (Id.). However, Smith concedes
that the injuries he suffered on March 9 were minor abrasions and blisters
(Smith Dep. at 69, 87; Plaintiff’s Memorandum at 35) and that he suffered no
injury his first two days on stump crew. (Smith Dep. at 60-61, 65-66). While
he states that the injuries threatened were sufficiently serious (Plaintiff’s
Response at 35), he fails to cite a case where threatened severe injuries were
enough for an Eighth Amendment claim to survive summary judgment.
Smith cites Berry for the proposition that the Eighth Amendment applies
to prisoners if they “are compelled to perform physical labor which is beyond
their strength, endangers their lives or health, or causes undue pain.” 39 F.3d
at 1057. On the only two dates that Smith recalls specifically working on the
stump crew (March 9 and 11), the temperature was well above freezing
(Defendants’ Ex. 2) and he was provided adequate equipment and safety
goggles, although no gloves (Smith Dep. at 67-70). Smith’s claim that stump
crew had been implemented by Pope’s supervisor, Donna Carnegie, as
punishment for prisoners who quit or got fired from their jobs (Smith Dep. at
28-29), even taken as true, does not itself create a persistent threatened injury.
Smith’s claims that he was not provided with safety goggles every time,
that he was not given adequate training, and that Pope did not accurately
account for his lack of experience with shovels and pickaxes in assigning him
to stump crew, combined with a lack of response from Defendants (Plaintiff’s
Response to Interrogatories at 4, ¶¶ 1-4), creates a dispute as to whether his

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health was endangered by working on stump crew. However, the risk to a
prisoner’s future health must be unreasonable. Henderson v. Sheahan, 196
F.3d 839, 846-47 (7th Cir. 1999) (emphasis added). Smith was moved from
Branchville to Putnamville in May 2010 (Smith Dep. at 14), more than one year
after the last time he worked on stump crew. His initial complaint was not
filed until more than four months after his last stint on stump crew. At most,
he worked on stump crew on four or five occasions during a four-month period.
Based on these facts, the court cannot conclude that there was an
unreasonable threat to Smith’s future health. Because, as Smith concedes, the
injuries he suffered were minor, the court concludes that Smith did not suffer
the sufficiently serious actual or threatened injury required for his Eighth
Amendment claim against Pope to survive summary judgment. Farmer, 511
U.S. at 834.
2. Did Pope act with a sufficiently capable state of
mind?
Even assuming arguendo that Smith had suffered a sufficiently serious
actual or threatened injury, he would still have to prove that Pope intentionally
caused him to be deprived of his Eighth Amendment rights. McNabola, 10 F.3d
at 513. This can be shown through either intentional acts (see DeWalt v.
Carter, 224 F.3d 607, 620 (7th Cir. 2000)) or through deliberate indifference
(see Townsend v. Fuchs, 522 F.3d 765 (7th Cir. 2008)). To sustain a claim of
deliberate indifference, Smith would have to show that Pope “knew that the
inmate faced a substantial risk of serious harm, and yet disregarded that risk

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by failing to take reasonable measures to address it.” Townsend, 522 F.3d at
773.
Smith alleges that Pope knew of the dangers of stump crew, especially
during the winter, yet still assigned him to stump crew over Smith’s
protestations, an inherently and unreasonably dangerous activity, without
adequate training or protective gear. (Plaintiff’s Response to Interrogatories at
4 ¶¶ 1-4)). He further claims that Pope knew that stump crew was designed as
punishment for workers who got fired from other jobs, and threatened him to
“throw him in the hole” if he did not show up for work. (Plaintiff’s Response to
Interrogatories at 4 ¶¶ 1-2; Smith Dep. at 28-29).
Even drawing all reasonable inferences in Smith’s favor, as the court is
required to do at this stage, the court finds Smith’s deliberate indifference
claim to be misplaced. Pope states, and Smith does not dispute, that she
informed Smith in February 2009 that the decision to place inmates on stump
crew rested with her supervisor, Donna Carnegie, not with Pope herself. (Pope
Aff. ¶¶ 13, 18). Pope’s undisputed job description does not include anything
about ensuring safe work conditions (Pope Aff. ¶¶ 8-9); at most, her role was
advisory about whether a worker should or should not be assigned to a job.
Even if there are disputed issues of material fact as to whether Pope knew that
stump crew was inherently dangerous or whether Smith had the occupational
background or physical ability to work on stump crew (Plaintiff’s Response to
Interrogatory at 4 ¶¶ 1-2; Pope Aff. ¶ 15), there is no dispute that Pope is not
the responsible party. Smith also did not designate any evidence that Pope

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failed to follow proper training protocol. Thus, she could not have acted with a
sufficiently culpable mind to constitute deliberate indifference. Smith’s
argument fails on this element as well, and Pope’s motion for summary
judgment as to whether she violated Smith’s Eighth Amendment rights must be
granted.
B. Does Smith have an actionable claim for retaliation?
Smith alleges that Paul Mitchell, George, and Chris Mitchell at various
times conspired to restrict his access to the law library and deprive him of his
job as a recreation worker in retaliation for his imminent lawsuit against
Branchville employees concerning stump crew. (Plaintiff’s Amended Complaint
at 9-12, 22). These actions, he claims, violated his First Amendment rights.
In a retaliation claim, a prisoner must establish that he was engaging in
protected conduct and his protected conduct was a motivating factor behind
the prison officials’ retaliatory conduct. Babcock v. White, 102 F.3d 267, 275
(7th Cir. 1996). A motivating factor is “a consideration present to [Defendant’s]
mind that favors, that pushes him toward action.” Hasan v. United States
Dep’t of Labor, 400 F.3d 1001, 1006 (7th Cir. 1996). To survive summary
judgment, Smith must affirmatively tie the Defendants’ retaliatory actions to
his engaging in protected conduct. Stagman v. Ryan, 176 F.3d 986, 1001 (7th
Cir. 1999).
Smith claims that the law of the case doctrine also applies in his First
Amendment retaliation claims. He opines that since the Seventh Circuit did
hold that the facts pleaded presented a plausible claim for retaliation (Smith,

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631 F.3d at 421), the Defendants would be precluded from relitigating that
issue on remand. (Plaintiff’s Response at 44-45). However, like with Smith’s
Eighth Amendment claims, the standard for a claim surviving summary
judgment is much higher than surviving a motion to dismiss. Smith must
show that there are material facts in dispute or triable issues that would
prevent Defendants from receiving judgment as a matter of law. Smith has
pleaded connected but somewhat distinct allegations against the three
Defendants.
1. Paula Mitchell
Smith accuses Paula Mitchell of harassing him as he attempted to use
the law library on February 28, 2009, and conspiring with George on June 16,
2009, to restrict his privilege of extra time in the law library in retaliation for
his constitutional claim about stump crew work and subsequently filing a
grievance against Mitchell for harassment. (Plaintiff’s Amended Complaint at
9-10). Smith claims the restricted use of the law library caused him to be
treated differently than similarly situated recreational workers. (Id. at 10). He
claims that it was understood that recreation workers were allowed to use
recreational facilities (e.g., gym, library, and law library) during the first 50
minutes of their one hour shift, since they only needed to work the last 10
minutes. (Smith Dep. at 99-100). Smith claims that the law library was the
only recreational facility that recreation workers were not allowed to use during
their work hour, and so Smith was the only recreation worker being deprived of
using his preferred recreational facility during work hours. (Plaintiff’s

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Memorandum at 48). This, he claims, constitutes sufficient circumstantial
evidence of retaliatory conduct that sustains his summary judgment burden.
(Id. at 47 (citing Long v. Teachers' Retirement Sys. of Ill., 585 F.3d 344, 350 (7th
Cir. 2009)).
Smith does not cite, and the court cannot find, any case that supports
the proposition that vulgar or rude language by a prison employee can by itself
sustain a claim of retaliation. While Paula Mitchell does not deny that she
used vulgar language, and the Seventh Circuit does not appear to have ruled
directly on this issue, several other circuits that have addressed this issue have
disallowed similar claims. “Verbal harassment or abuse . . . is not sufficient to
state a constitutional deprivation under 42 U.S.C. § 1983.” Collins v. Cundy,
603 F.2d 825, 827 (10th Cir. 1979). In Oltarzewski v. Ruggiero, the Ninth
Circuit held that absent a complete deprivation of law library access or
harassing or threatening behavior by the prison official, allegations of vulgar
language would not satisfy a claim brought under section 1983. 830 F.2d 136,
138-39 (9th Cir. 1987). Smith does allege that Paula Mitchell threatened to
“send Smith to the hole” while Smith was doing legal research. (Plaintiff’s
Amended Complaint at 9). However, Smith does not claim that he was
deprived of use of the law library, and more importantly, he makes no
affirmative showing that Paula Mitchell’s comment was in direct response to
his decision to file a grievance about the stump crew. Smith offers no more
than the assertion that she knew he planned to sue her coworkers. (Plaintiff’s
Response to Interrogatories at 5 ¶¶ 6-7). This failure to build a causal

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connection between Smith’s protected conduct and Paula Mitchell’s alleged
threatening speech means Paula Mitchell’s motion for summary judgment on
the issue of harassment must be granted.
Smith’s claim that Paula Mitchell and George conspired to restrict
Smith’s use of the law library on June 16 in retaliation for his filing of
grievances regarding the stump crew and Paula Mitchell’s harassment is
similarly unavailing. Paula Mitchell states that “Plaintiff was fired for failure to
comply with the prison work rules, and not because he filed grievances” and “I
did not retaliate against Plaintiff Smith due to his filing of grievances.” (Paula
Mitchell Aff. ¶¶ 20-21). Smith does not state when his grievance against Paula
Mitchell was filed, but admits that he was allowed to use the law library during
his working hours when he worked as a recreation worker between April 2009
and June 16. (Plaintiff’s Amended Complaint at 9-10). “The inference of
causation weakens as the time between the protected expression and the
adverse action increases” (Oest v. Illinois Dep’t. of Corr., 240 F.3d 605, 616 (7th
Cir. 2001)), and Smith does not explain why Paula Mitchell and George waited
two months to restrict his access if they had retaliatory intent. Smith’s claim
that Paula Mitchell convinced George to fire him as a recreation worker (Smith
Dep. at 103) suffers from the same lack of explanation. Absent some causal
link, along with an explanation as to why Paula Mitchell and George waited so
long to retaliate, there is no triable issue. Paula Mitchell’s motion for summary
judgment is therefore granted in whole.

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2. Craig George
Smith alleges that George, as the Branchville Recreation Coordinator,
retaliated against him for filing a grievance against him and Paula Mitchell and
planning to file a suit regarding the constitutionality of stump crew. (Plaintiff’s
Amended Complaint at 11-12). He did this first by restricting Smith’s use of
the law library during work hours on June 16 and 23 and then by terminating
him as a recreation worker on June 24. (Id.). Smith claims that when George
told him he could not use the law library during his work hours on June 16,
George said this was part of upcoming changes to the law library. (Id. at 11).
Smith states that George never said similar restrictions were in place for the
other places that recreation workers would use during their work hours, Smith
was one of three recreation workers (out of 30 total) who used the law library
(id.), and that other recreation workers were allowed to use the library during
their work hours. (Plaintiff’s Response at 46). Therefore, he claims, this
restriction was directed at him in response to his grievance and pending
lawsuit in violation of his First Amendment rights. (Plaintiff’s Amended
Complaint at 11).
As with his claims against Paula Mitchell, Smith has failed to tie
George’s decision to restrict him from using the law library during his work
hours to Smith’s exercise of protected conduct. Stagman, 176 F.3d at 1001.
Like the plaintiff in Oltarzewski (830 F.2d at 138), Smith was not completely
deprived of use of the law library, nor were his personal recreation hours at the
law library restricted. (Affidavit of Craig George (“George Aff.”) ¶ 18). He simply

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states that his extra time at the library was restricted. (Plaintiff’s Amended
Complaint at 11). He offers no evidence to rebut George’s valid stated reason
for not allowing him to use the law library—that Smith needed to be working
during his work hours. (Id.; George Aff. ¶¶ 13-15). Moreover, despite stating
that the restriction on the law library was being applied to him solely and
prospectively, Smith offers no evidence that other recreation workers were
allowed to use the law library during their work hours after June 16, 2009.
Therefore, he has not proved any retaliatory action, much less connected it to
his exercise of First Amendment rights. George’s claim for summary judgment
on this claim is therefore granted.
Smith further alleges that George terminated him in retaliation for his
grievances (including one against Paula Mitchell and George on June 19 for
restricting his law library time). (Plaintiff’s Amended Complaint at 12). Smith
claims that the timing and circumstances surrounding his termination on June
24 (immediately following his reduction in hours at the law library) show a
retaliatory intent against Smith for engaging in protected conduct. (Plaintiff’s
Response at 48). While circumstantial evidence can be used to sustain a
retaliation claim, Smith does not offer any evidence to rebut George’s statement
that Smith was fired as a recreation worker for his “failure to comply with the
prison work rules, not for filing grievances.” (George Aff. ¶ 19). The firing
happened just one day after Smith again used the law library during working
hours. (George Aff. ¶¶ 15-16). This suggests George’s reason for terminating
him was valid and not retaliatory. In the absence of any evidence to the

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contrary, George’s motion for summary judgment on the termination retaliation
claim must be granted as well.
3. Chris Mitchell
Finally, Smith claims that Chris Mitchell, while working as law librarian
and Recreation Leader (Affidavit of Chris Mitchell (“Chris Mitchell Aff.”) ¶¶ 5-6),
conspired with George to further reduce his library time by stopping the
practice of allowing idle prisoners to request additional time in the law library.
(Plaintiff’s Amended Complaint at 22). Smith claimed that due to a change in
the recreational schedule and being unable to find work at the prison, his law
library time had been reduced from 15 hours per week to four. (Id.). This
reduction, plus Chris Mitchell not allowing idle prisoners to use request forms
for extra time in the law library, combined to deprive him of any time in the law
library outside his recreation period. (Id.). This was allegedly in retaliation for
the grievances filed against George and Paula Mitchell, Chris Mitchell’s wife.
(Id.).
While the court is concerned that Chris Mitchell did not address these
accusations in his affidavit, this concern is outweighed by Smith not even
addressing this claim in his brief. Thus, the court is left to determine solely on
the basis of the complaint whether a reasonable trier of fact could infer that
Chris Mitchell conspired with George to restrict Smith’s law library time in
retaliation for the grievances filed. The court concludes it could not. Smith
does not allege that the changes in recreation schedule, job classification, or
stopping the use of request slips was not a prison-wide policy. While the

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timing of the decision to stop allowing idle prisoners to request more time in
the law library—just two days after Smith attended the evening law library
session (Plaintiff’s Amended Complaint at 22)—may be suspicious, Smith needs
more than suspicious timing to survive summary judgment. He must make an
affirmative showing that Chris Mitchell’s actions were connected to the
grievances filed against Paula Mitchell and George. He has failed to do so, and
Chris Mitchell’s motion for summary judgment must be granted.
IV. Conclusion
For the foregoing reasons, the motions for summary judgment by
Defendants Tammie Pope, Paula Mitchell, Craig George, and Chris Mitchell are
all GRANTED. Judgment consistent with this entry shall now ensue.2
SO ORDERED this 6th day of December, 2012.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
Wade J. Hornbacher
INDIANA ATTORNEY GENERAL
[e-mail]

Betsy M. Isenberg
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
John Andrew Goodridge
John Andrew Goodridge Law Office
[e-mail]

2

Defendants’ Motion to Strike Plaintiff’s Response in Opposition to Defendants’
Motion for Summary Judgment (Docket No. 110) is hereby dismissed as moot.

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