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Rogers v. Hulick

January 6, 2009

CLARENCE ROGERS, PLAINTIFF,
v.
DONALD HULICK, ET. AL., DEFENDANTS.



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

SUPPLEMENTAL SUMMARY JUDGMENT ORDER

This cause is before the court for further consideration of the plaintiff's retaliation claim.

I. BACKGROUND

The plaintiff originally filed his complaint pursuant to 42 U.S.C.§1983 against 15 defendants at Hill Correctional Center including Warden Donald Hulick; Correctional Officers Cornealious Sanders, Ed Anderson, James Critzer, Ronald Turnquist, Wayne Steele, James Carothers, Tammy Bennett, Robert Shisler, Steven Nott and Rod Melton; Administrative Review Board Member Melody Ford and Brian Fairchild; Illinois Department of Corrections Deputy Director Barbara Hurt and Director Roger Walker.

On December 7, 2005, the court conducted a merit review of the plaintiff's complaint and found that the plaintiff had stated an Eighth Amendment claim, a First Amendment claim and a Due Process claim. See December 7, 2005 Court Order.

On August 8, 2007, the court granted in part and denied in part the defendants' motion for summary judgment. The court found the plaintiff had the following surviving claims;

1) Defendants Anderson, Critser, Sanders, Steele and Turnquist violated the plaintiff's Eighth Amendment rights when they failed to protect the plaintiff from an inmate assault; and,

2) the named defendants violated the plaintiff's First Amendment rights when they retaliated against him for filing grievances and complaining about the assault.

Specifically, the plaintiff alleges that he told the identified defendants that he was in danger and needed to move to a different cell. No action was taken and the plaintiff says he was attacked by his cell mate later on the same day. The plaintiff then says the defendants retaliated against him for his grievance and letters concerning the assault.

The court noted in its summary judgment order that the defendants' motions left many unanswered questions concerning the potential retaliation claim. See August 8, 2007 Court Order, p. 5. It was not even clear what retaliation claims the plaintiff was stating against each of the defendants or if he had retaliation claims against all 15 named defendants.

Therefore, the court ordered both parties to provide further briefing on this claim and answer specific question propounded by the court to clarify the claim and determine whether the issue was ready for trial. The plaintiff was asked to specifically state: 1) which defendants retaliated against him; 2) how each defendant retaliated against him; 3) when he filed grievances or sent letters concerning the assault; 4) any evidence that the defendant knew about his grievances or letters, and 5) any discipline received for refusing housing. The plaintiff was also asked to provide copies of any grievances or letters.

The defendants were ordered to respond to the plaintiff's claims and also provide information concerning: 1) the results of the disciplinary hearing; 2) a copy of the plaintiff's grievance or grievances; 3) a chronology of events; 4) the defendants knowledge of the grievance or grievances, and 5) any other information relevant to the plaintiff's retaliation claim.

The parties have now responded. Since the briefs were requested to more thoroughly consider the summary judgment motion, the court will consider the retaliation claim pursuant to the summary judgment standard.

II. FACTS

Based on information provided by both parties, the following chronology has been established:

1/10/05 plaintiff complains to defendants about his safety concerns 1/10/05 (9:02 a.m.) plaintiff says he is attacked by his cell mate 1/10/05 (10:30) Def. Critser writes/signs an incident report 1/10/05 plaintiff files an emergency grievance concerning assault 1/14/05 Warden Hulick states the grievance does not qualify as an "emergency," and the plaintiff must submit the grievance in the normal manner. 1/24/08 The plaintiff's grievance is denied by Grievance Officer Shisler who states he reviewed the incident with Officer Critser and Officer Anderson. (At some time during this period, the plaintiff writes a letter to the Governor which is forwarded to the Warden's office and Officer Bennett is asked to interview the plaintiff in regards to his safety concerns.

3/3/05 Def. Bennett interviews plaintiff, writes disciplinary report 3/15/05 Disciplinary hearing held.

The court also notes that the defendants stated in their first motion for summary judgment that there is no protective custody at Hill Correctional Center. Therefore, an inmate who believes his cell mate is a threat has only two options: 1) the inmate may refuse his current housing assignment: or 2) the inmate may request to be placed in segregation under investigative status.

If the inmate chooses the first option and refuses housing, he will be moved to a different location and issued a disciplinary ticket. If the inmate's claims about his cell mate can be substantiated, the ticket will be expunged. If not, the inmate will be disciplined. (Def. Memo, Bennett Aff,)

If an inmate chooses the second option and asks to be put in segregation under investigative status, the Internal Affairs division will look into the inmate's claims concerning his cell mate. If the claim is substantiated, the inmate will be recommended for transfer to another facility. If the allegation is not substantiated, a disciplinary report may be issued. (Def. Memo, Bennett Aff,)

Defendant Tammy Bennett is assigned to the Internal Affairs Division. Bennett says inmates frequently complain about their cell mates and request to change their cell assignments. Some offenders make false claims to obtain a different assignment. Bennett says allowing excessive inmate movement would disrupt the safety and security of Hill Correctional Center. Defendant Bennett says the purpose of the policy at Hill Correctional Center is to make sure that every inmate has the ability to get out of a dangerous situation.

Offenders may not be able to ensure removal from their housing assignment unless they refuse housing. Although this means that an offender may not be able to escape a dangerous housing situation without receiving a disciplinary report, this policy is necessary to preserve the safety and security of the institution.(Def. Memo, Bennett Aff, p. 2).

III. LEGAL STANDARD

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. 56c. 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 ...


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