Greene v. Doruff et al

Filing 46

ORDER signed by Judge J P Stadtmueller on 9/24/10 as follows: granting 40 plaintiff's motion to amend/correct the caption - defendants are properly identified as John Doruff, Mark Stutleen, Andrew Van Gheem, and William Pollard; granting 19 defendants' Motion for Summary Judgment; dismissing this case on its merits. (cc: plaintiff, all counsel)(nm)

G r e e n e v. Doruff et al

D o c . 46

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
J E R E M Y T. GREENE, P l a i n t if f, v. J O H N DORUFF, MARK STUTLEEN, ANDREW VAN GHEEM, and W IL L IA M POLLARD, Defendants. C a s e No. 09-CV-291

ORDER
T h e pro se plaintiff, Jeremy T. Greene, who is incarcerated at the Green Bay C o rre c tio n a l Institution (GBCI), is proceeding in forma pauperis on a claim under 42 U .S .C . § 1983 that the defendants unlawfully retaliated against him after he filed a g rie va n c e regarding his removal from a work assignment in the prison library at G B C I. This matter now comes before the court on the plaintiff's motion to

a m e n d /c o rre c t the caption, and the defendants' motion for summary judgment. I. P L AIN T IF F 'S MOTION TO AMEND/CORRECT THE CAPTION O n July 20, 2010, the plaintiff filed a motion seeking to amend the caption to re fle c t the defendants' corrected names: John Doruff (sued as Jack Doruff), Mark S tutle e n (sued as Lt. Stutleen), Andrew Van Gheem (sued as Gary Van Gheem), a n d W illia m Pollard. The defendants provided these corrected names in their a n s w e r. Accordingly, this motion is granted, and the caption has been modified to re fle c t the correct names of the defendants.

Dockets.Justia.com

II.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT A. Standard of Review

S u m m a ry judgment is required "if the pleadings, the discovery and disclosure m a te ria ls on file, and any affidavits, show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R . Civ. P. 56(c). The mere existence of some factual dispute does not defeat a s u m m a ry judgment motion; "the requirement is that there be no genuine issue of m a te ria l fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For a d is p u te to be genuine, the evidence must be such that a "reasonable jury could re tu rn a verdict for the nonmoving party." Id. For the fact to be material, it must re la te to a dispute that "might affect the outcome of the suit." Id. A lth o u g h summary judgment is a useful tool for isolating and terminating fa c tu a lly unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986), c o u rts should act with caution in granting summary judgment, Anderson, 477 U.S. a t 255. W h e n the evidence presented shows a dispute over facts that might affect th e outcome of the suit under governing law, summary judgment must be denied. Id . at 248. The moving party bears the initial burden of demonstrating that he is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323. Where the moving p a r ty seeks summary judgment on the ground that there is an absence of evidence to support the nonmoving party's case, the moving party may satisfy its initial burden

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s im p ly by pointing out the absence of evidence. Id. at 325. Once the moving party's in itia l burden is met, the nonmoving party must "go beyond the pleadings" and d e s ig n a te specific facts to support each element of the cause of action, showing a g e n u in e issue for trial. Id. at 323-24. Neither party may rest on mere allegations or d e n ia ls in the pleadings, Anderson, 477 U.S. at 248, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (1989). In e va lu a tin g a motion for summary judgment, the court must draw all inferences in a lig h t most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith R a d io Corp., 475 U.S. 574, 587 (1986). However, it is "not required to draw every c o n c e iva b le inference from the record ­ only those inferences that are reasonable." B a n k Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). B. Facts 1

T h e plaintiff, Jeremy T. Greene, is a W is c o n s in Department of Corrections (D O C ) inmate housed at the Green Bay Correctional Institution (GBCI). All four d e fe n d a n ts are employed by the DOC at GBCI: John Doruff is the Education Director a n d W illia m Pollard is the W a rd e n . Lieutenants Mark Stutleen and Andrew Van G h e e m are Supervising Officers. On approximately October 29, 2007, Greene was scheduled to start a work a s s ig n m e n t as an inmate library worker at GBCI, with an anticipated end date of O c to b e r 29, 2009. Green's major duties/responsibilities as a library worker were to:

Facts are taken from the defendants' Proposed Findings of Fact, the verified Complaint, and the affidavits submitted by the parties.

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m a in ta in law library collection and provide assistance; make photocopies and m a in ta in photocopy log with accuracy; instruct users in locating materials, use of c o m p u te rs and Interlibrary Loan; process new materials, check materials in and out u s in g a computer; generate statistics from a computer as requested; maintain s tac k s , shelves and repair materials; provide general clerical services; and perform o th e r duties as assigned by instructor. On April 4, 2008, Librarian Kulieke signed "O ffe n d e r Performance Evaluation," form DOC-780, showing that Green's work p e rfo rm a n c e was satisfactory, and stating: M r. Greene has done a creditable job of running the circulation desk. H e has learned his duties fairly well and has been doing a more e ffe c tiv e job of shelving books and keeping up with the overall w o rk lo a d . He deals with other workers and library patrons goodn a tu re d ly. (Defendants' Exhibit 1004, at 4). O n July 1, 2008,2 at 8:00 a.m., Greene placed an envelope containing legal d o c u m e n ts that he needed copied into the library in-bound receptacle, prior to going to work as an inmate library clerk. At approximately 8:45 that morning, while Greene w a s attending attorney call, Correctional Officer W iz n e w s k i told him that he had in te rc e p te d the envelope and determined it to be contraband free, and directed him to carry it back to work at the library so that he could have the documents copied.

The parties disagree as to whether these events occurred on July 1, 2008, or July 2, 2008. For purposes of summary judgment, the court accepts Greene's contention that the correct date is July 1, 2008. The contemporaneous documentary evidence also supports this contention, as July 1, 2008, is the date that Lt. Stevens signed the work assignment removal form and the date on the checkout slip for the Anders case. (Plaintiff's Exhibits 7 and 3).

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A fte r the documents were copied, Greene took a few moments to highlight sections th a t were previously highlighted on the original documents. Greene also checked o u t the case of Anders v. California and printed out a receipt. Greene then placed th e Anders case, the receipt, the copies, and the legal documents into an envelope a n d turned it over for mailing to Correctional Officer Holterman. O n July 3, 2008, Greene was escorted into a meeting in defendant Doruff's o ffic e . Doruff asked why Greene sent the documents to himself, and why the copies w e re highlighted. Greene stated that they were pertinent to a case that he was a s s is tin g another inmate with, and that the copies were highlighted because the o r ig in a ls had been highlighted. Greene also informed Doruff that Librarian Kulieke a llo w e d him to use a couple of minutes to complete such services for himself as long a s his work was caught up. As he was talking, Greene observed Doruff examining th e copy of Anders, and the check-out slip for it, as well as the disbursement request fo r copies. A few hours later on July 3, 2008, Greene received a work assignment re m o va l form signed on July 1, 2008, by the Institution Reviewing Representative, L t. Stevens. The form removed Greene from his work assignment in the library e ffe c tiv e July 2, 2008. On July 4, 2008, Greene spoke with Lt. Stevens, who told G re e n e that he had been removed at Doruff's request, and that whether or not the

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re m o va l was permanent was up to Doruff.3 Doruff was out of the institution for a p e rio d of time after the incident.4 On July 4, 2008, Greene wrote Doruff a letter a s k in g Doruff to let him know his final decision. On July 25, 2008, Greene submitted o ffe n d e r complaint #GBCI-2008-20510, alleging that Doruff wrongfully removed him fro m his job. On August 7, 2008, Greene informed Doruff's subordinate, Librarian Kulieke, a b o u t his offender complaint against Doruff and allowed Kulieke and inmate library c le rk Richard Crapeau to read the complaint and attachments. The following day, o n August 8, 2008, Doruff completed an adult conduct report alleging that Greene vio la te d the rules regarding theft and inadequate work performance by possessing th e Anders case without authorization 5 and by highlighting materials while on his job a s a library clerk.6 T h e same day, Stutleen reviewed the conduct report and determined that it s h o u ld proceed as a major offense, based upon the value of the property involved.
Doruff avers that he "does not have the authority to m a k e a determ in a tio n related to rem o v in g any in m a t e from a work assignm e n t , " (Doruff Aff. ¶ 12) but does not deny asking or directing Lt. Stevens to r e m o v e Greene from his work assignm e n t . Doruff does not specify the length of his absence, saying only that he was "out of the institution for a period of tim e after the date of the incident on July 2, 2008." (Doruff Aff. ¶ 13). Greene avers that Lt. S te v e n s inform e d him that Doruff was on vacation only until July 14, 2008. (Greene Aff. ¶ 18). Doruff avers that it was his "determ in a tio n " that the Anders case was listed as m is s in g from the lib r a r y. (Doruff Aff. ¶ 18). It is undisputed that the theft charge was later dropped, and Doruff does not explain h o w he m a d e this initial determ in a tio n that Greene had stolen the case. Greene avers that only library staff h a d access to the checkout records, and that Doruff did not ask library staff whether the Anders case was c h e c k e d out. (Greene Aff. ¶ 32-33). Greene further avers that Doruff reviewed the check-out receipt for the A n d e r s case while Greene was present in Doruff's office. (Greene Aff. ¶ 31). Defendant Doruff avers that inm a te library workers are not allowed to work on personal m a tt e r s while p e r f o r m in g job duties. (Doruff Aff. ¶ 16). Greene avers that Librarian Kulieke allowed him to perform services f o r him s e lf as long as his work was caught up. (Greene Aff. ¶ 13).
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O n or about August 9, 2008, Greene told Stutleen that Doruff filed a retaliatory c o n d u c t report against him because he had learned that Greene complained about D o ru ff's actions. Greene asked Stutleen why he upgraded the charges based on va lu e when the allegedly stolen case law consisted of only a few pages, which cost n o more than 30¢. Stutleen told Greene that theft is always upgraded and that D o ru ff thought it was a big deal. Greene told Stutleen that he actually had the a lle g e d ly stolen case law checked out, and Stutleen replied that he approved the c o n d u c t report based on Doruff's allegations. O n August 26, 2008, Van Gheem presided over a disciplinary hearing related to Greene's conduct report. During the hearing, Greene provided a written

s ta te m e n t that he believed Doruff filed the conduct report as a reprisal for Greene filin g a complaint against Doruff, but Van Gheem did not address this allegation. S u m m a riz in g witness testimony on form DOC-84A, Van Gheem wrote that Librarian K u lie k e testified that "[Greene's] performance is adequate" but also that Kulieke d is c o n tin u e d any inmate legal work at Doruff's request. (Defendant's Exhibit 1005). V a n Gheem found Greene guilty of Inadequate W o rk or Study Performance under W is . Admin. Code § DOC 303.62, which provides that "[a]ny inmate whose work fails to meet the standards set for performance on a job or school program and who has th e ability to meet those standards, is guilty of an offense." As a reason for his d e c is io n , Van Gheem wrote:

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[I]n m a te was performing a task while at his work assignment other than h is prescribed duties. The position description verifies that this is not a n authorized task. Report writer [Doruff] supervises entire work area a n d considers this to be a failure to meet work standards. (F o rm DOC-84, Plaintiff's Exhibit 15). Van Gheem imposed a sentence of 14 days o f cell confinement and disposal of the photocopied documents as contraband, s ta tin g that this disposition was based on Greene's history of similar offenses.7 O n August 26, 2008, Greene appealed, and on September 18, 2008, W a rd e n P o lla rd affirmed the hearing officer's decision and the sentence imposed, although h e ordered the case returned to the hearing officer for corrections recommended by In m a te Complaint Examiner Cathy Francois, including: noting that Doruff was p re s e n t at the hearing as an observer, addressing Greene's offense history, and s trik in g reference to the theft charge. AN AL Y S IS In support of summary judgment on the merits, the defendants offer that the p la in tiff failed to present competent evidence that any of them acted with a retaliatory m o tive . Specifically, defendant Doruff maintains that he issued the conduct report b e c a u s e Greene failed to adhere to his job duties, and that he was not even aware th a t Greene had filed a complaint against him. Defendants Van Gheem, Stutleen

Van Gheem avers that he noted that Greene was issued two conduct reports in July 2008, including o n e in which he was found guilty of "passing contraband" under DOC 303.47. (Van Gheem Aff. ¶ 18). This a p p e a r s to be a typographical error in Van Gheem 's affidavit, as the record reflects that conduct report was f o r possessing contraband, not passing it. The contraband in that conduct report was an extra pair of shoes in Greene's cell.

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a n d Pollard also submit that they did not know that Greene had filed a complaint a g a in s t Doruff. In response, Greene asserts that Doruff issued the conduct report against him m o re than a month after the events occurred, but less than 24 hours after Greene in fo rm e d Doruff's subordinate of his complaint against Doruff. In addition, Greene a rg u e s that the theft charge in the conduct report was not justified, and that his work p e rfo rm a n c e was adequate. Greene further maintains that he informed defendants V a n Gheem, Stutleen and Pollard that Doruff's conduct report was retaliatory, but th e y all failed to take appropriate action. T o prevail on a First Amendment retaliation claim under § 1983, a plaintiff "m u s t prove that `(1) he engaged in activity protected by the First Amendment; (2) h e suffered a deprivation that would likely deter First Amendment activity in the futu re '; and (3) a causal connection between the two." Watkins v. Kasper, 599 F.3d 7 9 1 , 794 (7th Cir. 2010), quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2 0 0 9 ) (holding that inmate stated claim for free speech retaliation where he alleged th a t prison officials and guards would not have harassed him but for his participation in a lawsuit). The first element is not disputed here. It is clear that "a prison official m a y not retaliate against a prisoner because that prisoner filed a grievance." DeWalt v . Carter, 224 F.3d 607, 618 (7th Cir. 2000). The defendants belatedly make a ones e n te n c e argument regarding the second element in their reply brief, contending that "G re e n e cannot show that his First Amendment rights were chilled as a result of the

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a lle g e d retaliation...." (Defendants' Reply at 7). This argument comes too late, is w h o lly undeveloped, and lacks merit. Courts have acknowledged that receiving re ta lia to ry conduct reports may deter inmates from exercising their First Amendment rig h ts . Bridges, 557 F.3d at 552 (stating that unjustified disciplinary charges are a c tio n a b le under § 1983 if brought in retaliation for a constitutionally protected right, a n d that this and other harassment may deter a person from exercising his First A m e n d m e n t rights); see also Jones v. Smith, 2009 W L 1732431 * 3 (W .D . Wis., J u n e 18, 2009) ("[S]ubmitting a false conduct report that was dismissed only after p la in tiff had been in temporary lock-up for nearly a month . . . would be sufficient to d e ter a person of ordinary firmness. . . ."). T h is case pivots on the third element, whether Greene has presented enough a d m is s ib le evidence to permit a jury to find that there was a causal connection b e tw e e n Greene's filing an offender complaint regarding Doruff, and Doruff issuing a conduct report against Greene. Doruff avers that he was not aware that Greene h a d filed an inmate complaint regarding him when he issued the conduct report a g a in s t Greene. The issue of a decision-maker's knowledge can be crucial for re ta lia tio n claims at summary judgment. See e.g. Luckie v. Ameritech Corp, 389 F .3 d 708, 715 (7th Cir. 2004) ("The key inquiry in determining whether there is a c a u s a l connection . . . is whether Paterson was aware of the allegations of d is c rim in a tio n at the time of her decisions . . . absent such knowledge there can be n o causal link . . . ."); Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 755 (7th

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C ir. 2000) ("The critical issue here ... is whether the person who made the decision to terminate his employment was aware of the discrimination allegations at the time, b e c a u s e absent such knowledge, Maarouf lacks a causal link between the te rm in a tio n and the complaint of discrimination."). It is "rare for a plaintiff to have smoking gun evidence that a defendant knew o f her protected speech, or for a defendant to admit such knowledge." Valentino v. V illa g e of South Chicago Heights, 575 F.3d 664, 672 (7th Cir. 2009). Consequently, "[c ]irc u m s ta n tia l proof, such as the timing of events or the disparate treatment of s im ila r individuals, may be sufficient to establish the defendant's retaliatory motive." Id ., quoting Massey v. Johnson, 457 F.3d 711, 717 (7th Cir. 2006). Here, Greene c o n te n d s that Doruff somehow "caught wind" of his complaint and belatedly issued a baseless conduct report in retaliation. (Greene Aff. ¶ 22). Greene states that K u lie k e reports to Doruff, and that Doruff filed the conduct report, more than a month a fte r the events it concerns, the very day after Greene showed a copy of his c o m p la in t to Kulieke. W h ile Doruff explains that the delay in filing the conduct report w a s due to his absence for a period of time after the events occurred, he does not s p e c ify the dates of his absence or explain why he issued the conduct report on that p a rticu la r day. Accordingly, the timing is suspicious, which may constitute

c irc u m s ta n tia l evidence of a causal connection. Casna v. City of Loves Park, 574 F .3 d 420, 427 (7th Cir. 2009) ("Suspicious timing rarely is enough to create a triable

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is s u e , but in an extreme case like this, where the adverse action comes `on the h e e ls' of the protected activity, it is."). This case, however, differs from the "extreme" situation presented in Casna. In that case, there was no dispute that the defendant police chief's secretary im m e d ia te ly informed the chief about an employee's protected speech, and that the c h ie f recommended that the employee be fired the following day. Here, on the c o n tra ry , there is no evidence that Kulieke or anyone else told Doruff about Greene's c o m p la in t. Greene assumes that Doruff learned of his complaint immediately before is s u in g the conduct report, but his assumption is based primarily upon the fact that D o ru ff acted to have him punished despite his pleas that he did not violate any work ru le s . Unfortunately for Greene, the Seventh Circuit has observed "that even if a d e fe n d a n t was brimming over with unconstitutional wrath against a § 1983 plaintiff, th a t plaintiff cannot prevail unless he or she establishes that the challenged action w o u ld not have occurred but for the constitutionally protected conduct." Abrams v. W a lk e r, 307 F.3d 650, 654 (7th Cir. 2002).8 Drawing the inferences most favorable to Greene, it appears that Doruff consistently treated him with animus from the time D o ru ff first decided that he was displeased with Greene's work performance. Doruff m a y have treated Greene unfairly by refusing to consider evidence favorable to

This case was abrogated by Spiegla v. Hull, 371 F.3d 928 (7th Cir. 2004), but later revived by Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009) ("Some decisions say that a plaintiff just needs to show that his speech was a motivating factor in defendant's decision. These decisions do not survive Gross, which holds that unless a statute provides otherwise, demonstrating but-for causation is part of the plaintiff's burden in all suits under federal law.") (referring to Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009)).

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G re e n e , but he began doing so well before Greene filed a complaint against him. W ith o u t any evidence that Doruff learned of Greene's complaint before issuing the c o n d u c t report, Greene cannot hope to establish that Doruff would not have issued th e conduct report but for Greene's complaint. See Luckie, 398 F.3d at 715 ("It is n o t sufficient that Patterson could have or even should have known about Luckie's c o m p la in ts ; she must have had actual knowledge of the complaints for her decisions to be retaliatory.") (emphasis in original). Accordingly, Greene's retaliation claim a g a in s t Doruff does not survive summary judgment and will be dismissed. G re e n e 's claims against the other three defendants are subject to summary ju d g m e n t as well. Greene contends that W a rd e n Pollard and Lieutenants Stutleen a n d Van Gheem were personally involved in Doruff's retaliation against him insofar a s they took actions or failed to take actions that approved and supported Doruff's u n c o n s titu tio n a l retaliation. Even if Doruff did unlawfully retaliate against Greene, th is theory has an important limitation: [T ]h e official "approving" the unconstitutional conduct must know of the fa c ts that make the conduct unconstitutional . . . in other words plaintiff m u s t show that defendant Stellings believed defendant Greetan had is s u e d the conduct report, not for the reasons stated in the report, but b e c a u s e defendant Greetan had called Greetan corrupt and threatened to file an incident report against him. W ils o n v. Greetan, 571 F.Supp.2d 948, 955 (W . D . W is . 2007) (emphasis in original). G re e n e points out that he told these defendants that Doruff was retaliating against h im , but "[k]nowledge of plaintiff's allegation of retaliation is not the same thing as k n o w in g that [the correctional officer] was lying about his reasons for the conduct -13-

re p o rt." Id. The plaintiff cannot show, as he must for these claims to survive s u m m a r y judgment, that these defendants "did not honestly believe that the conduct re p o rt was valid." Id. As a result, Greene's claims against these defendants must a ls o be dismissed. A c c o r d in g ly , IT IS ORDERED that the plaintiff's motion to amend/correct the caption (D o c k e t #40) be and the same is hereby GRANTED. The defendants be and hereby a re properly identified as John Doruff, Mark Stutleen, Andrew Van Gheem, and W illia m Pollard. IT IS FURTHER ORDERED that the Clerk shall note the corrected names of th e defendants. IT IS FURTHER ORDERED that the defendants' motion for summary ju d g m e n t (Docket #19) be and the same is hereby GRANTED. IT IS FURTHER ORDERED that this case be and the same is hereby D IS M IS S E D on its merits. T h e Clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 24th day of September, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge -14-