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Moss v. Westerman

January 9, 2008

CARL MOSS, A/K/A MOSETICK, PLAINTIFF,
v.
DARRELL N. WESTERMAN, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

I. FACTS AND PROCEDURAL HISTORY

On August 16, 2004, Plaintiff, Carl Moss, filed suit against Defendants, Darrell N. Westerman, Andrew N. Wilson, Michael R. Locke and Eugene McAdory, pursuant to 42 U.S.C. § 1983. Defendants, Wilson, Locke and McAdory, were dismissed on threshold review on July 24, 2006. Moss's only remaining claim is that Westerman retaliated against him, in violation of the First Amendment, after he questioned Westerman's interpretation of a new policy regarding inmate legal materials and expressed a willingness to grieve his concerns. The parties filed cross motions for summary judgment on a qualified immunity defense (Docs. 38, 39), and Westerman filed a motion for summary judgment on the merits (Doc. 45). The motions were referred to Magistrate Judge Philip M. Frazier, who submitted a Report and Recommendation on December 11, 2007. Both Moss and Westerman have filed timely objections.

In Moss's amended complaint, he alleges that, while he was incarcerated at the Menard Correctional Center, Warden McAdory established a policy regarding the procedure for carrying paperwork to the library. Moss was carrying his paperwork to the library in a plain white envelope when Westerman took it from him and emptied the contents. A copy of the warden's policy was one of the items in the envelope. Moss attempted to show it to Westerman and gain clarification of the policy. Westerman responded, "I run this, if you don't like it, write a grievance." Moss replied, "As you wish, sir." Taking note of the officer's name tag for the grievance, Moss added, "Lieutenant Westerman."

Westerman then ordered Moss to cuff-up and directed another correctional officer to escort him back to his cell. A few minutes later, Westerman came to Moss's cell, again ordered him to cuff-up and escorted him to the prison's segregation unit. In the segregation unit, Westerman remarked, "This will teach him to write a grievance about me." Although Moss violated no prison rules, Westerman filed false charges, accusing Moss of misconduct. As a result of the false charge, Moss was segregated from other inmates for one month. Subsequently, Moss sent correspondence to the prison's legal liaison expressing his concerns about Westerman's actions.

Based upon these allegations, Moss brings his Complaint, pursuant to 42 U.S.C. §1983, for retaliation against his exercise of his constitutional rightsagainst Defendant Westerman. Moss seeks compensatory damages and other relief, including expungement of all charges from his record and transfer to the medium security prison of his choice.

In Magistrate Judge Frazier's Report, he recommends that Moss's motion for summary judgment on the qualified immunity defense be granted and that defendant's cross motion be denied. He further recommends that Westerman's motion for summary judgment be denied. If these recommendations are adopted, the Final Pretrial Order will reflect the finding that 42 U.S.C. § 1997e(e) bars recovery of compensatory damages. Moss objects to four statements of fact in the recommendation and requests a review of his claim for injunctive relief to prevent future abuses and deprivations by Westerman. Westerman objects to the recommendation on the following grounds:

1) Moss's speech cannot be considered to qualify as a matter of public concern; 2) the timing of the filing of Moss's grievance is crucial; 3) summary judgment should be entered as to Moss's claims for compensatory damages; and 4) Westerman's conduct was protected by qualified immunity.

II. ANALYSIS

Because timely objections were filed, this Court must review de novo those portions of the Report to which specific objections have been made. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b); Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). In this case, each recommendation has resulted in an objection. The Court may accept, reject, or modify the recommended decisions, or recommit the matter to the Magistrate Judge with instructions. Fed. R. Civ. P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999).

Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Vukadinovich v. Board of Sch. Trs. of North Newton Sch. Corp., 278 F.3d 693, 698-99 (7th Cir. 2002).

The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v. Franklin Sch. Dist.,293F.3d 989, 996 (7th Cir. 2002).Rather, to successfully oppose summary judgment, the non-movant must present definite, competent evidence or affirmative defenses in rebuttal. Vukadinovich, 278 F.3d at 699.

"A complaint states a claim for retaliation when it sets forth 'a chronology of events from which retaliation may plausibly be inferred.'"Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988); Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987) (Plaintiff's complaint "set forth a chronology of events from which retaliatory animus on the part of defendants could arguably be inferred"). Prison officials may not retaliate against inmates for filing grievances.See Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. ...


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