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Roberts v. Firkus

May 28, 2008


The opinion of the court was delivered by: Harold A. Baker United States District Judge


The plaintiff claims that the defendants retaliated against him for exercising his First Amendment rights by: issuing and upholding false disciplinary reports; making it difficult and unpleasant for the plaintiff's wife to visit him; and, by ultimately instituting permanent visitation restrictions between him and his wife. He also claims that the permanent visitation restrictions amounted to cruel and unusual punishment under the Eight Amendment. (Amended Complaint d/e 33). The case is before the court on the defendants' motion for summary judgment.


Summary judgment "should be rendered if the pleadings, the discovery and disclosure 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). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e).

Undisputed Facts*fn2

1. The plaintiff is incarcerated in the Illinois Department of Corrections. Olga Roberts is the plaintiff's wife.

2. The plaintiff was incarcerated at Logan Correctional Center from April 2003 until May 17, 2005.

3. On or about March 26, 2004, Mrs. Roberts was visiting the plaintiff at Logan Correctional Center. The visit was terminated because Defendant Moreland, a correctional officer, reported observing them kissing at the table. The plaintiff and Mrs. Roberts dispute that they were kissing at the table.

4. When she arrived home after her visit on March 26, 2004, Mrs. Roberts called Defendant Firkus to alert him to Defendant Moreland's alleged lies. The conversation left Mrs. Roberts with the impression that Firkus did not believe her but instead believed Moreland's account.

5. On March 27, 2007, Defendant Moreland wrote a disciplinary report against the plaintiff charging him with abuse of privileges based on the table kissing incident. This disciplinary report does not appear to be in the record, but the both parties' exhibits refer to it. Mrs. Roberts asserts that Defendant Firkus had indicated to someone that a 30-day suspension on visiting privileges would be implemented, but there is no evidentiary support for this in the record, other than Mrs. Roberts' statement, which is inadmissible hearsay.

6. On March 29, 2004, Mrs. Roberts wrote to Roger Walker, alerting him to Defendant Moreland's purported lies about the table kissing, as well as recounting a host of other alleged indignities and harassment that Mrs. Roberts had endured when trying to visit her husband, reaching back to October 2003. (d/e 33-2, p. 12). The letter was copied to the plaintiff and to Defendant Sims, then the Warden of Logan Correctional Center.

7. On April 1, 2004, Defendant Sims authored a letter to Mrs. Roberts informing her that her visiting privileges had been revoked for three months because she had violated the rules by "exhibit[ing] inappropriate sexual behavior." (d/e 59-2, p. 4).

8. On April 14, 2004, Defendant Sims wrote another letter to Mrs. Roberts, this one in response to the letter she had written to Roger Walker. Defendant Sims took exception to the allegations that Mrs. Roberts had leveled against the staff at Logan. Sims further defended Officer Moreland's actions and character. Sims explained "We have very specific guidelines in regards to behavior in this setting, such as limits on the amount/type of embracing or touching allowed due in large part out of respect to those individuals who occupy this area (i.e. young children, grandparents, etc.), in addition to maintaining control within a penal facility." (d/e 56-3, p. 5).

9. On April 24, 2004, Mrs. Roberts e-mailed Roger Walker's personal secretary, again challenging Defendant Moreland's purported lies, the 90 day suspension of her visiting privileges, and Sims' alleged increase in the restriction from 30 to 90 days in retaliation. As stated ...

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