The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the defendants' motion for summary judgment (Doc. 31). Plaintiff Mark Trevathan ("Trevathan") has responded to the motion (Doc. 37), and the defendants have replied to that response (Doc. 39). The defendants also move to strike one of Trevathan's exhibits (Doc. 40). Trevathan has not responded to that motion.
I. Standard for Summary Judgment
Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396. Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
Viewing all admissible evidence and drawing all reasonable inference in Trevathan's favor, the Court finds the following relevant facts for the purpose of this motion.*fn1
From September 2000 to December 2003, Trevathan worked as a nurse at Menard Correctional Center ("Menard"). On December 16, 2003, due to a change in management of the health care services at Menard, Trevathan began a period of probationary employment with the Illinois Department of Corrections ("IDOC"). At that time, defendant Eugene McAdory ("McAdory") was the warden at Menard and defendant Roger E. Walker, Jr. ("Walker") was the director of IDOC.
Shortly thereafter, on the morning of December 25, 2003, inmate Charles Platcher ("Platcher") was found in his health care unit cell dead, or near death, from hypothermia. Several hours earlier, Trevathan, who knew Platcher was on suicide watch, had found Platcher nude on his cell floor and had attempted to give Platcher his medication. Platcher had said, "No," and had refused to take it. Later Platcher had been taken to the hospital and been pronounced dead. Questions were raised about Trevathan's attempt to give Platcher his medication, and on December 31, 2003, McAdory had Trevathan escorted from Menard in front of his co-workers, placed him on administrative lockout -- a sort of suspension -- and ordered him to report to McAdory's office on January 2, 2004.
On January 2, McAdory accused Trevathan of being negligent with respect to his care of Platcher and of lying on an incident report. He then found Trevathan guilty of negligence and gave him the option of resigning or being discharged. Trevathan chose to be discharged. His termination became final on February 20, 2004.
Platcher's death was heavily publicized in the media. Trevathan objects to the following statements and others similar in substance:
* A March 31, 2004, Chicago Tribune story quotes unnamed officials as stating that "a prison nurse was fired . . . in the death of Charles Platcher, 31, who was found naked on the concrete floor of his solitary cell in Menard Correctional Center on Dec. 25," and quoted an IDOC spokesman as saying disciplinary action was taken within a week of the Platcher's death based on an investigation into the incident.
* An April 1, 2004, St. Louis Post-Dispatch article quoted an IDOC spokesman as saying, "Three prison employees were disciplined after the incident [Platcher's death]."
* A June 23, 2004 Chicago Tribune article quoted McAdory, who was no longer employed by IDOC at the time, referring to "mistakes made by his staff" including "a nurse's failure to follow up on Platcher's incoherent response from a cell in the prison's medical unit about 4 a.m." The article continued to say that McAdory "stopped short of blaming Platcher's death on the nurse," but "called the incident 'tragic' and a 'mistake.'" It also recounted erroneously that Platcher grunted or moaned in response to a nurse's attempt to give Platcher medication. He stated that the nurse, in a "crucial mistake" interpreted the response as a refusal instead of accepting only a distinct "no" from the inmate and should have entered the cell to investigate the inmate further and notified the prison doctor or a superior officer. The article stated that McAdory fired the nurse within a week of the incident.
Although the defendants never named Trevathan in any of their statements, people in Trevathan's home town soon drew the conclusion that Trevathan was the nurse in question. Trevathan was also quoted in one local newspaper as saying he had been fired and he believed he was a scapegoat for IDOC.
Trevathan was able to find other employment as a nurse after his discharge. During October and November 2004 and then again from November 2005 to July 2006, Trevathan worked part-time as a nurse in nursing homes on an "as needed" basis. Nevertheless, under current policies, neither IDOC nor any medical services contractor for IDOC will hire Trevathan as a nurse because of his termination for negligence in his duties.*fn2 In addition, Trevathan applied for employment as a nurse at the Federal Bureau of Prisons and the Illinois Department of Human Services but was not hired. In his ...