Carr v. Whittenburg

462 F.Supp.2d 925

William CARR, Plaintiff, v. Larry WHITTENBURG and Craig Hein, Defendants.

No. 3:01-CV-625-DGW.

United States District Court, S.D. Illinois.

April 28, 2006.

William Carr, Pontiac, IL, pro se.

Matthew A. Lurkins, Attorney General's Office, Springfield, IL, for Defendants.

ORDER

WILKERSON, United States Magistrate Judge.

This matter is before the Court on the Motion for Summary Judgment filed by the Defendants, Larry Whittenburg and Craig Hein, on September 2, 2005 (Doc. 86) and the Motion to Dismiss Defendants' Motion for Summary Judgment filed by the Plaintiff, William Carr, on October 5, 2005 (Doc. 94). For the reasons set forth below, the Defendants' Motion for Summary Judgment is DENIED (Doc. 86), and the Plaintiffs Motion to Dismiss Defendants' Motion for Summary Judgment is DENIED AS MOOT (Doc. 94).

BACKGROUND

The Plaintiff, William Carr, an inmate at the Menard Correctional Center ("Menard") near Chester, Illinois, brings this action pursuant to 42 U.S.C. § 1983. The operative complaint in the case alleges, "Plaintiff prepared a grievance which was dated 4/22/01 and on that date mailed the grievance to defendant Whittenburg" (Amended Complaint ("Am.Compl.") ¶ 6). "The grievance was against Unit Superintendent William T. Spiller and alleged that Mr. Spiller allowed his security staff and inmate cell house workers to act as food handlers in the absence of required medical staff approval and appropriate sanitation apparel in violation of [Illinois] Department [of Corrections] Rule 502.40" (Id. ¶ 7). "Defendant Whittenburg, in retaliation for plaintiff making said grievance against Spiller, wrote a false disciplinary report dated 4/27/01 which stated that plaintiff intimidated or threatened his cell mate, Bernard Taylor. Said report was false because plaintiff did not threaten or intimidate Taylor" (Id. ¶ 8). "Defendant Hein, also in retaliation against plaintiff for making the 4/22/01 grievance, signed the false disciplinary report and ordered that plaintiff be placed in temporary confinement and ordered a correctional officer to put plaintiffs cell on deadlock status; plaintiff further suffered a scar on his wrist due to being handcuffed" (Id. ¶ 9). "Defendant Hein then turned the report over to Captain Lashbrook as review officer who declared the report a major rule infraction which caused the report to be scheduled for an adjustment committee hearing" (Id. ¶ 10). "Defendants Whittenburg and Hein conspired between themselves and with others with respect to the retaliation against plaintiff in the form of the 4/27/01 false disciplinary report and the subsequent guilty finding at the adjustment committee hearing where plaintiff was denied the testimony of any witnesses" (Id. ¶ 12).

As a result of the adjustment committee hearing regarding the disciplinary report, Carr was ordered to undergo a three-month demotion from A grade status to C grade status, three months in segregation, and denial of contact visits for three months (see Am. Compl. ¶ 11). During the three-month period, Can' was unable to attend Muslim religious services, lost unassigned pay in the amount of $10 per month, was denied recreation for the first ten days of the three-month period due to segregation, was ineligible for a medium security transfer, and was unable to attend the general prison population's yard recreation (see id.) Also, Carr suffered pain and bruising and scarring on his wrists due to being required to wear handcuffs that were too small for his wrists (see id.).

Carr asserts that Whittenburg and Hein violated his rights under the First Amendment and Fourteenth Amendment of the United States Constitution by retaliating against him for filing a grievance. Whittenburg and Hein have moved for summary judgment as to Carr's claim on the grounds that, at the time they wrote the disciplinary report against him, they were unaware that he had filed a grievance, so that the disciplinary report was not written with retaliatory intent. Because the disciplinary report was not written with retaliatory intent, the defendants argue further, they are entitled to summary judgment on the grounds of qualified immunity.

DISCUSSION

A. Legal Standard

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.3.Civ.P. 56(c). In considering a summary judgment motion, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.1995); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir.1981). On summary judgment a court may not make credibility determinations or weigh the evidence, because these are tasks for a factfinder. See Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th Cir.1994); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir.1993). In evaluating a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994).

B. Motion for Summary .Judgment

As discussed, Carr alleges that Whittenburg and Hein retaliated against him for filing a grievance by writing a false disciplinary report against him, in violation of his constitutional rights. "An act taken in retaliation for the exercise of a constitutionally protected right violates the Constitution. Prisoners have a constitutional right of access to the courts that, by necessity, includes the right to pursue the administrative remedies that must be exhausted before a prisoner can seek relief in court." DeWalt v. Cartel; 224 F.3d 607, 618 (7th Cir.2000) (citations omitted). "Thus, a prison official may not retaliate against a prisoner because that prisoner filed a grievance.... This is so even if the adverse action does not independently violate the Constitution." Id. See also Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002).

In opposition to the Defendants' request for summary judgment, the Plaintiff has moved to dismiss the Defendants' motion for summary judgment. The Plaintiff asserts that the summary judgment motion is untimely because it was filed fewer than one hundred days before the first day of the presumptive trial month in this case, September 2005, in violation of Local Rule 7.1, which provides, in pertinent part, "All motions ... for summary judgment must be filed no later than one hundred (100) days before the first day of the presumptive trial month." S.D. Ill. Local R. 7.1(f). The Plaintiff further points out that the Defendants have been on notice of the nature of the Plaintiffs claim since the commencement of this action and therefore cannot proffer any legitimate reason for their failure to comply with the plain, mandatory language of Rule 7.1(f).

The Court agrees with the Plaintiff that the Defendants' motion for summary judgment is unacceptably late; but, the Court believes that the motion fails for another, more fundamental reason. The basis for the summary judgment motion, as noted, are affidavits by Whittenburg and Hein stating that, at the time they prepared the disciplinary report that resulted in Carr's punishment, they were not aware that Carr had filed a grievance. Carr's complaint, however, clearly alleges facts from which reasonable jurors could infer retaliation. Similarly, the affidavits filed by Whittenburg and Hein clearly implicate issues about the Defendants' intent and motive and ask the Court to make credibility determinations that only the trier of fact can make.

As discussed, Carr alleges that, a mere five days after he wrote and mailed a grievance to Whittenburg, the Defendants brought an allegedly false disciplinary report against him. While it is possible in some instances to prove retaliation through direct written evidence, see, e.g., Buise v. Hudkins, 584 F.2d 223, 226 (7th Cir.1978), in most instances it is not possible to do so, and instead retaliation must be proved through circumstantial evidence. See Murphy v. Lane, 833 F.2d 106, 108 (7th Cir.1987) ("[T]he ultimate fact of retaliation for the exercise of a constitutionally protected right rarely can be supported with direct evidence of intent[.]"). "[R]etaliation may plausibly be inferred" from "a chronology of events." Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988). See also Benson v. Cady, 761 F.2d 335, 342 (7th Cir.1985). To prove retaliation, a plaintiff must show that his or her constitutionally-protected conduct was a substantial or motivating factor in a state actor's decision and that the same decision would not have been reached absent the protected conduct. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir.2004). Typically courts have found an inference of causation where the temporal interval between allegedly retaliatory action and a Plaintiff's protected activity is relatively short. See, e.g., Murphy, 833 F.2d at 109 n. 1 (finding a plausible inference of retaliation where an inmate was transferred to another prison two hundred miles away "immediately" after filing a lawsuit against the prison). Cf. Benson, 761 F.2d at 342 (holding that a five-month gap between an inmate's protected activity and allegedly retaliatory conduct "greatly weakens any inference" that an act was taken in retaliation for the exercise of constitutional rights).

In Harris v. Fleming, 839 F.2d 1232 (7th Cir.1988), the court reversed a grant of summary judgment as to a claim of retaliation by a Menard inmate. The inmate had brought suit under 42 U.S.C. § 1983, alleging that...