The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the court are the plaintiff's motions for summary judgment (d/e's 146, 152), along with several other motions. The defendants have not filed a response to the summary judgment motions, believing that the court's stay of that response deadline was still in effect because, according to the defendants, the plaintiff has refused to answer the defendants' interrogatories as directed by the court. (d/e's 156, 157, 176). The defendants have moved for sanctions against the plaintiff (d/e 176).
These disputes are tangential to the court's primary inquiry at this point: is there enough evidence to give this case to a jury? After careful review of the plaintiff's submissions in support of his summary judgment motions, the court concludes that no reasonable juror could find for the plaintiff on any of his claims, except for his Eighth Amendment claims regarding a tactical team's cell extraction and subsequent strip search.
"Granting summary judgment sua sponte is permissible, although it is a hazardous procedure which warrants special caution." The Osler Institutute v. Forde, 333 F.3d 832, 835 (7th Cir. 2003)(citations omitted). "When there are no issues of material fact in dispute, a district court may grant summary judgment on its own motion-as long as the losing party is given notice and an opportunity to come forward with its evidence." Id. That is the situation here. All parties will be given an opportunity to respond.
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(c). 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. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994).
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).
The Court notes that many of the plaintiff's submissions involve claims he has already pursued in other cases.*fn1 The claims in this case were set forth in the Court's merit review of December 4, 2004 (d/e 14). Only the facts relevant to those claims are considered.
The Court finds the following facts undisputed on the plaintiff's claims in this case, from the evidence submitted by the plaintiff in support of his motions for summary judgment (d/e's 147, 148, 153, 154).
1. At all times relevant, the plaintiff was an inmate incarcerated in the Illinois Department of Corrections, and the defendants were acting under color of state law.
2. The plaintiff has been in the custody of IDOC since November 1996, except from around October, 1998, to August, 1999, when the plaintiff was incarcerated in Cook County Jail. (d/e 147, ¶ 2).
3. In August, 2001, the plaintiff was incarcerated in Western Illinois Correctional Center ("Western"). (d/e 147, ¶ 3).
4. The plaintiff maintains that, prior to August, 2001, he "had only received (approx) 5 disciplinary reports." (d/e 147, ¶ 5)(parentheses in original). However, the documents submitted in support of that statement do not appear to include the time period before June 1997. (d/e 148, Ex. 4). Additionally, the plaintiff was not in the IDOC for 11 of those months (fact # 2 above).
5. The plaintiff's mother and other relatives attempted to visit him around August 26, 2001. The vehicle that the plaintiff's mother was driving was searched, and a small amount of marijuana residue was found inside a sandwich bag. (d/e 147, ¶ 9).*fn2 As a result, the plaintiff's mother was arrested and permanently barred from visiting the plaintiff. (d/e 148, Ex. 2).
6. The plaintiff believed that the vehicle search and subsequent arrest of his mother was unconstitutional. He informed "inmates and staff members," including Defendants Elledge and Winters, that he and his mother would be filing a lawsuit about the search and arrest.
The plaintiff filed a grievance about his mother's treatment on September 27, 2001, which was denied (d/e 148, Ex. 5).
7. On October 9, 2001, Defendant Elledge refused to allow the plaintiff to "make commissary." (d/e 147, ¶ 19). The plaintiff filed a grievance against Elledge on October 10, 2001, accusing Elledge of retaliation for the plaintiff's planned lawsuit about his mother's arrest. (d/e 148, Ex. 6). The grievance was denied as unsubstantiated. Id.
8. In February, 2002, the plaintiff was transferred to Pinckneyville Correctional Center. He remained there until April 23, 2002. That transfer is not challenged in this case. (Amended Complaint, Count 7, challenging transfer back to Western in 2003 and subsequent transfer to Pontiac).
9. On April 18, 2002, the plaintiff was diagnosed with a major depressive disorder. (d/e 147, ¶ 34).*fn3
10. On April 23, 2002, the plaintiff was transferred from Pinckneyville Correctional Center to Dixon Correctional Center, where he resided in a crisis cell until April 29, 2002. (Final Pretrial Order in case 03-3014, d/e 187). That transfer is also not challenged in this case.
11. The plaintiff asserts that he appeared before the Admissions Review Committee in May of 2002. The plaintiff says Defendant Henry threatened to transfer the plaintiff back to Pinckneyville if he filed any more grievances or pursued his pending grievances and lawsuits, while Defendants Eubanks and Weiner sat by silently. (d/e 147, ¶ 40). The plaintiff disregarded Henry's threats and continued to file and pursue grievances.
12. The plaintiff made an identical claim against Defendant Henry in Whitfield v. Walker, 02-50387 (N.D. Ill.)(See Plaintiff's Second Amended Complaint in that case, doc. 47, ¶ 12). Summary judgment was granted to defendants on March 20, 2006:
Here, plaintiff can point to no evidence of any specific negative treatment that was visited upon him in retaliation for filing any grievances. While he refers to a comment made to him by defendant Henry about a transfer to another institution, there is simply no evidence that Henry or anyone at Henry's direction ever instituted a transfer or any other negative action against him because of any motivation to retaliate for his filing grievances. Nor is there any evidence that Henry had such authority to cause a transfer. Further, plaintiff offers no evidence, beyond his own self-serving claim, that a transfer to another institution would have been negative. Therefore, the court denies plaintiff's motion for summary judgment and grants defendants' motion for summary judgment as to the retaliation claim.
(3/20/06 Court Order, PACER website, d/e 161). The plaintiff has appealed that ruling. Id.
13. On October 11, 2002, Defendant Chattic (Dixon) wrote a disciplinary ticket against the plaintiff for intimidation/threats, insolence, and disobeying (arguing in agitated manner in response to question whether plaintiff wanted EKG). (d/e 148, Ex. 41). The plaintiff denied the charges. (d/e 148)(Ex. 38). The plaintiff was found guilty of insolence, not guilty of intimidation/threats. The plaintiff filed a grievance regarding this disciplinary report on October 30, 2002. Defendant Lombardo filed a disciplinary report against the plaintiff arising from the same incident, which was expunged as a duplicate. (d/e 148, Ex. 31).
14. On October 12, 2002, Defendant Spong (Dixon) wrote the plaintiff a disciplinary report for a health/safety violation and disobeying a direct order (refused to return food tray). The plaintiff admitted that he refused to give up his food tray until his request to speak with a lieutenant about his property was honored. The plaintiff was found guilty of disobeying. In November, 2002, the plaintiff filed a grievance challenging the discipline. (d/e 148, Ex. 57, 66).
15. On November 9, 2002, Defendant Scott (Dixon) wrote the plaintiff a disciplinary report for disobeying and violating rules (failing to return shaving razor within 20 minutes). (d/e 148, Ex. 48). The plaintiff admitted he returned the razor late, but explained that there was not enough time to shave because he had to share the sink with a cell mate. The plaintiff was found guilty of a rule violation, not guilty of disobeying. The plaintiff filed a grievance on the matter on December 27, 2002. Id.
16. On November 27, 2002, Defendant Gabrielson (Dixon) wrote the plaintiff a disciplinary report for intimidation/threats, insolence, unauthorized movement, and disobeying (refusing order to get in line and wait; jumping up and down and demanding to see a lieutenant) (d/e 9, p. 110-117). The plaintiff denied the charge. The plaintiff was found guilty of insolence and disobeying, not guilty of intimidation/threats and unauthorized movement. The plaintiff filed a grievance about this report on December 20, 2002. (d/e 9, p. 149).
17. On December 3, 2002, Defendant Sanders (Dixon) wrote the plaintiff a disciplinary report for intimidation/threats and insolence ("flipping bird" and stating "Fuck all you moose-faces" and laughing hysterically). Plaintiff admitted to intentionally "flipping bird" to get a ticket because he was "tired of getting written up and punished for things I did not do and, second, because [I]felt this was the only way to prove that staff members are constantly harassing me . . ." (d/e 148, d/e 64). The plaintiff was found guilty of insolence, not guilty of intimidation/threats.
18. On December 5, 2002, Defendant Terry (Dixon) wrote the plaintiff two disciplinary tickets arising from the same incident. One charged the plaintiff with damage/misuse of property, intimidation/threats, insolence, unauthorized movement, and disobeying (yelling, "Fuck you bitch" "I'll slap you mother fucker," and flipping off officer). (d/e 148, Ex. 69). Terry's other report charged the plaintiff with unauthorized movement and disobeying a direct order (refused order to wait for escort). (d/e 148, Ex. 92). Plaintiff admitted to flipping off officer and saying "Fuck you," but denied threatening or intimidating anyone. The plaintiff said he did so intentionally to prove that officers were filing trumped up charges. Id. He was found guilty on all charges.
19. On December 8, 2002, Defendant Doering (Dixon) wrote a disciplinary ticket against the plaintiff for insolence, unauthorized movement, and disobeying (refusing to be uncuffed). Plaintiff admitted to refusing an order, but explained that he did so to protest the fact that he had not received a mattress. The plaintiff was found guilty ...