The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the Court is the defendants' motion for summary judgment, which is denied for the reasons below.
Summary Judgment Standard
A party moving for summary judgment must show, from the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . ." that there is no genuine issue of material fact and that the "moving party is entitled to judgment as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Fed. R. Civ. P.56©. This burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. Credibility questions "defeat summary judgment only '[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed. R. Civ. P. 56(e)(other citations omitted).
In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). The question is " . . . whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
1. The plaintiff was incarcerated at Logan Correctional Center at all relevant times.
2. The plaintiff filed a grievance on April 30, 2003, complaining that defendant Sinkhorn had transferred the plaintiff from his job in the employee dining room side to the inmate dining side (a less preferable position). According to the plaintiff, Sinkhorn had improperly believed false accusations by other inmates that the plaintiff was not doing his work. (d/e 26, Ex. 1-A). The plaintiff requested reinstatement to his officer dining room position. The grievance was answered on June 4, 2003, with the response:
Inmate claims that he was removed from staff side dietary job by CCFS 2 Sinkhorn for allegations of [illegible] staff sides food. Inmate claims that this was at the word of another inmate and believes that this was not a good reason. Inmate job placement is not a right, inmates may be moved from job to job per need or staff concern. CFSS 2 Tribbett claims that he was the staff member that had inmate Taylor removed from the staff side of the dietary due to not completing ordered work since he was eating.
(Def. Ex. 1-A). The grievance officer recommended denial of the grievance and the Warden concurred in this recommendation on June 9, 2003, adding a comment, "Copy to be forwarded to Ms. Tanner for her information."
3. The plaintiff avers that, "several days after submitting the grievance, I was transferred back to the inmate dining area expecting a decrease in monthly pay to $20.00 [down from $30.00]." (d/e 35, Plaintiff's Aff. ¶7).*fn2 The plaintiff avers he "signed an intra-dietary tranfer[sic]/referral form initiated by defendant Sinkhorn" that transferred the plaintiff to the inmate dining area and reduced his pay. (Plaintiff Aff. ¶ 36). The plaintiff says he immediately requested another transfer to "Dietary I dept.", apparently in order to avoid Sinkhorn's shift and to continue receiving the higher $30.00 salary. He says his request was approved on or about May 16, 2003. ( Id. at ¶ 8; Complaint, p.2).
4. After his request was granted, the plaintiff worked in Dietary I under the supervision of "CFSSII" Jones. (Plaintiff's Aff. ¶ 9).
5. On July 27, 2003, Supervisor Jones was absent, so Sinkhorn filled in as temporary supervisor over the plaintiff that day.
6. On July 27, 2003, Sinkhorn wrote a disciplinary ticket against the plaintiff for unauthorized movement, disobeying a direct order, and insolence (d/e 34, attached).The gist of the ticket accuses the plaintiff of refusing Sinkhorn's direct orders to leave the kitchen and go to the front dining room to work as a porter (a less desirable assignment), and also of arguing with defendant ...