The opinion of the court was delivered by: Harold A. Baker United States District Judge
1) the defendants' motion for summary judgment (d/e 59), the plaintiff's responses thereto (d/e's 64, 66), and the defendants' reply (d/e 67);
2) the plaintiff's motion to compel (d/e 63) and the defendants' response thereto (d/e 64); and,
3) the defendants' motion to strike (d/e 71) and the plaintiff's response thereto (d/e 72)
For the reasons below, the Court grants in part and denies in part the defendants' summary judgment motion. After this order, the only claims remaining are: the defendants' refusal to allow the plaintiff's pattern books violated and/or violates his First Amendment rights; and 2) Defendant Greenwood retaliated against the plaintiff for the exercise of the plaintiff's protected First Amendment rights.
1. In April, 2002, the plaintiff was incarcerated in Graham Correctional Center. The plaintiff received five iron-on pattern books in the mail, that had been ordered for him by his brother. Prison officials refused to give the books to plaintiff for the stated reason that the patterns could be used to make tattoos. (d/e 59, Ex. 15).
2. In May, 2002, the plaintiff received approval for the books from the IDOC Central Publication Review Committee. Id. However, Graham's Warden, defendant Bryant, still refused to allow the plaintiff his books. Nor would Bryant allow the plaintiff to return the books for a refund or send the books to someone else outside the prison.
3. September, 2002, the plaintiff filed an action for replevin in Montgomery County Court, seeking the return of the books, or an order allowing him to return them to the sender.
4. In February, 2003, defendant Bryant filed an amended affidavit in the replevin action, as part of an amended motion for summary judgment.(d/e 34, p. 17).*fn2 In the affidavit, Bryant averred that he had the authority to follow or not follow the recommendations of the Central Publication Review Committee, and that he had overruled the Committee's decision to allow the plaintiff to possess five iron-on transfer books. Plaintiff apparently believed that Bryant's affidavit was a contrived attempt to win summary judgment based on false and/or self-serving statements.
5. A hearing on the amended motion for summary judgment in the replevin action was held on March 8, 2003. (d/e 34, "Criminal Complaint," p. 8).
6. Out of frustration from waiting for the replevin court's ruling and Bryant's conduct in the replevin action, the plaintiff filed supplemental materials in support of his replevin action (d/e 34, "Criminal Complaint," p. 10). He included in the copy sent to the Illinois Attorney General a note that stated:
When I was sentenced to imprisonment in the IDOC, the Judge at the time told me that I was to learn to obey the law. I sure am not going to learn how by observing you and prick who runs this prison. Isn't perjury a crime? (Defendants' exhibit 1; Plaintiff's dep. pp. 10-12; d/e 34, "Criminal Complaint p. 11).
7. The Illinois Assistant Attorney General faxed the letter to Graham Correctional Center, where the letter eventually made its way to Lt. Brookshire of Internal Affairs. (d/e 59, Affidavit of Bryant).
8. On the morning of May 12, 2003, the plaintiff was taken to segregation, with no explanation and no chance to pack and inventory his property. (d/e 34, p. 12). That evening, the plaintiff received two disciplinary reports. One was written by Defendant Brookshire, charging the plaintiff with insolence and intimidation/threats, based on the plaintiff's letter to the Attorney General calling the Warden a prick. (Defendants' exhibit 2; Bryant Affidavit; Plaintiff's dep. p. 13, l. 1 - 15). The second was written by Defendant Greenwood, charging the plaintiff with unauthorized and excess property in his cell. (d/e 34, Appendix, p. 31).
9. On May 13, 2002, the plaintiff wrote a letter addressed to Warden Bryant, stating in relevant part (d/e 59, Ex. 10):
I am writing this from seg where you were so kind to send me.
By your reaction it is apparent that you truly are ignorant of the law. I fail to understand how someone so incompetent got to be warden. Apparently it must be an affirmative action quota thing.
Until now, it wasn't a high priority for me to spend the $150 filing fee just to show you were and are incompetent. Now I'm going to enjoy dancing with you and Mr. Taylor in federal court as we have done so locally.
Hopefully, I can cause enough consternation among your supervisors so that they will fire you for your incompetence and for wasting the state's money over such petty bullshit.
I should tell you that I have never found anyone who is as big of an asshole as I am. You will soon learn that I am a tenacious son of a bitch too.
10. On May 13, 2006, Correctional Officer Price confiscated the May 13th letter in the plaintiff's cell and wrote a disciplinary ticket against the plaintiff for insolence (304) and intimidation/threats (206) based on that letter. (d/e Ex. 6). Specifically, the report states:
On the above date and time [5/13/03, 10:45 a.m.] this c/o was giving inmate Lehn his chow. At that time this c/o took a letter out of Lehns door. The Letter was not in a envelope. This c/o looked threw the letter and seen it was for warden Bryant. This c/o seen in the letter that it was intimidating and threatening towards warden Bryant. So at that time this c/o gave the letter to Ass. Warden Beck.
(D/e 59, Ex. 6)(sics not noted). The plaintiff's May 13th letter was never attached to the May 13th disciplinary report.*fn3
11. On May 13, 2003, the plaintiff was approved for a transfer from Graham Correctional Center to Pinckneyville Correctional Center. The transfer documents state the reason as: "Inmate Lehn is being submitted for transfer to Pinckneyville CC upon administrative request for making inappropriate comments to the Warden. IDR will follow." (d/e 59, Ex. 17).
12. On May 14, 2003, after learning of his imminent transfer to Pinckneyville, the plaintiff wrote another letter to Warden Bryant (d/e 59, Ex. 5):
They just told me that I'll be shipped out tomorrow. I guess when you have no chance of winning in court because your lies have been exposed you have to do what you have to do. As they say, "Power corrupts."
I am going to file [a] fed civil rights 42 U.S.C. § 1983 suit against you as soon as I get where I'm going.
As I said in my last missive, you made a big, big mistake by not notifying me that you had overruled the CPRC and by not notifying the CPRC or allowing me to send the books back to the sender.
Even if you had the right to not allow me to have the books you still had no right to just keep them as you did.
By submitting the affidavit to court as you did you fucked yourself royally. Without that affidavit I probably wouldn't have a case against you. . . .
Hopefully the new director will see the mess you are causing the IDOC and the amount of money you are costing the state and will fire your ass.
Rest assured, you have not heard the last of me. Warden Holmes shipped me from BMRCC 4 years ago and I am still giving him grief in court. He, like you, thought he was above the law. He didn't realize just how tenacious I am.
Rest assured, you will be hearing from me for a long while to come. . .
I hope you don't take this personally. It's just that I don't think that you are qualified to be warden let alone a dog catcher.
With all due respect [emphasis in original],
Don p.s. If you think what I wrote in my note to B.Paul Taylor was disrespectful, you should hear what your own officers say about you behind your back. . .
13. Officer Myers wrote the plaintiff a disciplinary ticket for insolence on May 14, 2003, based on the May 14th letter (d/e 59, Exhibit 8). The May 14th report states:
On the above date and approximate time [5/14/03 at 10:00 a.m.], this R/O was reviewing a letter sent from inmate Lehn B72472 to Warden Steven Bryant. The letter uses several curse words toward Warden Bryant directly. This action places Inmate Lehn B72472 in violation of Rule 304-Insolence. (Letter is attached).
14. The plaintiff was not served with the May 14th disciplinary report until May 21, 2003 (at the Adjustment Committee hearing). The plaintiff ...