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BURTON v. KUCHEL

September 14, 1994

ALNORAINDUS BURTON, Plaintiff,
v.
JOHN KUCHEL, et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Former Stateville Correctional Center ("Stateville") inmate Alnoraindus Burton ("Burton") brings this action under 42 U.S.C. ┬ž 1983 ("Section 1983"), contending that a number of Illinois Department of Corrections ("Department") employees violated his constitutional rights in the ways described in four counts bearing these Roman numerals and labels:

 
I. Retaliation for Exercise of First Amendment Rights;
 
III. Invasion of Privacy; and
 
IV. Violations of Freedom of Speech, Right to an Attorney, and Right of Access to Courts.

 All five remaining defendants now move for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, their motion is granted in part and denied in part.

 Procedural Background

 Burton filed his initial complaint pro se, describing how he had assertedly been harassed, antagonized and on one occasion punched by various Stateville personnel. After this Court conducted its invariable threshold review for non-"frivolousness" in the legal sense defined in Neitzke v. Williams, 490 U.S. 319, 324, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) and refined in Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992), it appointed counsel to represent Burton and granted leave to file an Amended Complaint ("AC") that set out the earlier-described claims. Burton had originally named these nine Stateville employees as defendants:

 
Warden Salvador Godinez ("Godinez")
 
Assistant Warden Jerome Springborn ("Springborn")
 
Lieutenant Vincent Currie ("Currie")
 
Lieutenant Paul Douglas Buchanan ("Buchanan")
 
Correctional Officer ("CO") John Kuchel ("Kuchel")
 
CO Christopher Simpson ("Simpson")
 
CO Glenn Ray Malone ("Malone")
 
CO Dorothy Sims ("Sims")

 After the taking of depositions, however, Burton voluntarily dismissed Springborn, Morgan and Sims on March 21, 1994.

 Summary Judgment Principles

 Familiar Rule 56(c) principles teach that to be "entitled to a judgment as a matter of law," the moving party must establish the absence of any "genuine issue as to any material fact" ( Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). In that respect, a "genuine issue" requires that there be sufficient evidence for a jury to return a verdict in favor of the nonmoving party ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)), while a "material fact" is one that "might affect the outcome of the suit under the governing law" ( id. at 248; Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991)). For that purpose, "if the prison administrators and guards demonstrate[] that there are no genuine issues of material fact, [plaintiff] cannot rely on conclusory allegations; instead, he must provide evidence of specific factual disputes" ( Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988)). In applying those principles this Court is not required to draw "every conceivable inference from the record--only those inferences that are reasonable" in favor of nonmovant Burton ( Bank Leumi Le-Israel, V.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)).

 Both sides have complied with the requirements of this District Court's General Rule ("GR") 12(m) and 12(n), adopted to implement Rule 56 by highlighting the existence or nonexistence of material factual issues. Because Burton is entitled to the benefit of favorable inferences, it turns out that only his GR 12(n) submission of added facts (cited "P. 12(n) (2) P--") needs to be referred to in this opinion.

 Facts1

 Burton was sent to Stateville on July 31, 1991 following a conviction on criminal charges. He arrived accompanied by a file containing a harsh appraisal written by the Assistant State's Attorney (P. 12(n) (2) PP45-47; p. Ex. 3):

 Although he has since been transferred (over his objections) to Menard Correctional Center, Burton was incarcerated at Stateville throughout the time period at issue here.

 Burton's troubles giving rise to this lawsuit began on November 26, 1992 when he was on his way from the shower back to his cell. Burton (an African-American) accidentally bumped into Kuchel, who said, "Watch where you're going, nigger." Burton told Kuchel (who is white) to refer to him by his name or prison identification number, to which Kuchel responded, "I'll call you what I want to call you, nigger" and then pushed Burton against the wall (Burton Dep. 19-21). *fn2" Lieutenant Morgan arrived on the scene about that time, at which point Kuchel walked away. *fn3" After Burton asked Morgan whether he had heard Kuchel's slur, Morgan called Kuchel back to inquire, but Kuchel denied calling Burton "nigger" and walked away smirking (P. 12(n)(2) PP54-55; Burton Dep. 21).

 Though Morgan instructed him "just leave the incident alone," (P. 12(n)(2) P55; Burton Dep. 24), Burton decided to pursue the matter further. *fn4" He brought it to the attention of CO Bobby Timms, who referred him to Captain Raymond Hall ("Hall"). During dinner that night Burton took his story to Hall, who summoned Kuchel to his office for questioning and advised Burton to write up a grievance (P. 12(n)(2) PP56-58). Burton both did that and also wrote to Godinez asking to be placed on the call line to speak directly with the Warden or an Assistant Warden (id. P59). *fn5"

 As Burton was returning from Hall's office to dinner, Kuchel approached him, called him a "trick" (a derogatory term for a prisoner who complains of mistreatment) and warned him "that it's not over yet" (Burton Dep. 33). *fn6" Three days later (on November 29) Kuchel, Morgan and Simpson executed the first of what was to become a series of inordinately frequent "shakedowns" over the next month. *fn7" Those shakedowns, ostensibly conducted to search Burton's cell for contraband, occurred three or four times a week (Burton Dep. 37-42, 93 ("just about every day")) and were usually accompanied by searches of all of Burton's clothing (requiring him to strip nude) (id. 42-43) and by visual body cavity searches. In sharp contrast, shakedowns as to the rest of the prison population occur on about a once-a-month basis, though "it could be more than that" (P. 12(n)(2) P65; Morgan Dep. 7).

 On December 27 Kuchel, Morgan and Simpson conducted still another shakedown of Burton's cell (Burton Dep. 49-50), this time finding a number of pink capsules. Though Burton says he informed them that the capsules were actually sleeping pills prescribed by Stateville medical personnel and lawfully in his possession (P. 12(n)(2) P105; Burton Dep. 60-64), Simpson and Currie insist that the capsules tested positive for cocaine (see P. Ex. 31, Simpson's Disciplinary Report describing the confiscation and testing of the capsule; Currie Dep. 38-46, stating that he personally witnessed the same) . However, on the basis not only of Burton's testimony but also from other record evidence, *fn8" this Court credits Burton's version on the present motion. Later that day COs Kuchel, Simpson and Malone, along with Lieutenants Buchanan and Currie, returned to Burton's cell to conduct an additional shakedown (P. 12(n)(2) P77), *fn9" informing him that they had discovered illicit drugs during the first one (Burton Dep. 48). What follows is Burton's account of that second December 27 shakedown.

 Burton was once again ordered to strip, was handcuffed and then watched as the officers began "tearing things up" (Burton Dep. 48-49). Buchanan and Kuchel began to help themselves to clothes and other possessions that Burton had purchased at the prison commissary (P. 12(n)(2) P80; Burton Dep. 49). That included Burton's radio, which Kuchel later smashed to pieces against the floor in front of Burton (P. 12(n)(2) P79; Burton Dep. 55-56). Kuchel also opened and read confidential correspondence between Burton and his public defender pertaining to the pending appeal of his criminal ...


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