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Hunter v. Dutton

March 9, 2009

MARKUS HUNTER, PLAINTIFF,
v.
C/O DUTTON, C/O MASON, KENNETH HAMILTON, ROBERT S. FREY, ROGER E. WALKER, JR., LESLIE MARKEL, JACKIE MILLER, AND DAVID MITCHELL, DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM and ORDER

I. Introduction

Pending before the Court is Defendants' Amended Motion for Summary Judgment (Doc. 39). Defendants, who are all employed by the Illinois Department of Corrections ("IDOC"), argue they are entitled to summary judgment on Plaintiff Markus Hunter's ('Plaintiff') retaliation claim brought pursuant to 42. U.S.C. §1983, because their evidence shows Plaintiff's claim fails. Defendants additionally maintain Plaintiff cannot prevail because they are all entitled to qualified immunity. For the reasons discussed below, the Court grants in part and denies in part Defendants' motion for summary judgment.

II. Facts

Plaintiff is an inmate housed at the Tamms Correctional Center ("Tamms"). Defendants Kirk Dutton, Doug Mason, and Kenneth Hamilton were at all relevant times Correctional Officers at Tamms. Defendant Robert S. Frey was at all relevant times the Warden at Tamms. Defendant Roger Walker, Jr., was at all relevant times the Director of the Illinois Department of Corrections ("IDOC"). Defendant Leslie Markel was all relevant times the Grievance Officer. Defendant Jackie Miller was at all relevant times a Chairperson of the Administrative Review Board ("ARB").

This case surrounds certain events that occurred on March 20, 2005, at Tamms where Plaintiff is incarcerated. According to Defendants, at approximately 9:00 that morning, Defendant Mason and non-defendant Wehrheim, both Tamms correctional officers, began conducting a routine "shakedown" of Plaintiff's cell (Doc. 39-2, Affidavit of Kirk Dutton, ¶4). IDOC policy requires prison staff members to perform such shakedowns of inmate cells every 60 days. Id. at ¶5. According to Defendants, shortly after the shakedown began, officer Wehrheim had to leave Plaintiff's cell to perform unrelated duties, and Defendant Dutton replaced Wehrheim and continued searching for unauthorized items in Plaintiff's cell. Id. at ¶7.

Soon after Wehrheim left, Defendant Mason found two inhalers in Plaintiff's cell, one which was concealed (Doc. No. 39-2, Affidavit of Doug Mason, ¶ 8.) IDOC policy prohibits inmates from possessing more than one prescribed inhaler at a time; therefore, the officers suspected Plaintiff's additional inhaler violated this policy. Id. at ¶¶9, 11. To confirm whether their suspicions were correct, Defendant Dutton contacted the nurse who was on duty to determine whether Plaintiff was authorized to have two inhalers in his cell (Doc. 39-2, Affidavit of Kirk Dutton, ¶10). The nurse told Dutton that both inhalers contained the same medication and that Plaintiff was not supposed to have more than one inhaler. Id. Consequently the officers confiscated the inhaler with the oldest date on it, turned it over to the shift commander, and split up the paperwork they had to write about the incident between them (Doc. 39-2, Affidavit of Doug Mason, ¶¶12, 16).

Defendant Dutton wrote up the disciplinary report that charged Plaintiff with possessing drugs or drugs paraphernalia and possessing contraband or unauthorized property. Id. at ¶12. Defendant Mason wrote up the shake down slip, which states that officer Wehrheim witnessed the shakedown and does not mention Defendant Dutton. Id. Defendant Dutton states he was not motivated to write the disciplinary report by any grievance or lawsuit Plaintiff filed, and further states he was unaware of any grievance or lawsuit that Plaintiff had filed when he wrote the disciplinary report (Doc. 39-2, Affidavit of Kirk Dutton, ¶¶13-14). Dutton says his only motivation to write the report was that Plaintiff possessed two inhalers, which violated Department Rules 203 and 308. Id. at ¶16. Dutton played no part in deciding whether Plaintiff was guilty of committing the rules, and what discipline, if any, Plaintiff would receive. Id. at ¶¶ 17-18.

Similar to Defendant Dutton's assertion, Defendant Mason also states he was not motivated to shake down the Plaintiff's cell by any grievance or lawsuit Plaintiff filed. (Doc. 39-2, Affidavit of Doug Mason, ¶13). He contends he "did not know of any grievances or lawsuits" Plaintiff had submitted or was contemplating submitting at the time of the shake down. Id. at ¶14. To explain why Defendant Dutton's name does not appear on the shake down slip, Defendant Mason contends states "Officer Wehrheim was the witness on the shake down slip because he filled out the date, time and witness when he started the shake down." Id. at 12. Similar to Defendant Dutton, Defendant Mason claims that he did not make the decision concerning the consequences of Plaintiff's disciplinary report. Id. at ¶¶ 17-18.

Three days after the shakedown, Tamms Adjustment Committee (the "committee") conducted a hearing concerning the disciplinary ticket issued to Plaintiff. (Doc. No. 31-2, Affidavit of David Mitchell, ¶1). The committee decides whether an inmate is indeed guilty of committing the rules for which he has been charged. Id. at ¶ 2. Defendants Mitchell and Hamilton served on the committee. See Doc. No.31-2, Affidavits of David Mitchell and Kenneth Hamilton. The committee reviewed a statement written by Plaintiff in which Plaintiff admitted he possessed two inhalers but disputed his guilt because the nurse failed to pick up his old inhaler when she delivered another one (Doc. No. 31-2, Affidavit of Kenneth Hamilton, ¶ 5). See also Defendants' Exhibits 8 (Plaintiff's written statement stating same). Plaintiff also alleged in his statement that Defendants Dutton and Mason wrote the disciplinary report and shake down slip in retaliation against him. Id.

To make an informed decision, the committee contacted Plaintiff's treating physician who confirmed he did not give Plaintiff permission to possess more than one inhaler (Doc. No. 31-2, Affidavit of Kenneth Hamilton, ¶7). The committee also reviewed a "destruction log" that showed Plaintiff had recently turned in an inhaler so that it could be destroyed. Id. at ¶8. Defendant Mitchell also contacted the nurse whom Plaintiff accused of failing to pick up his old inhaler (Doc. No. 39-2, Affidavit of David Mitchell, ¶¶ 5-6). That nurse told defendant Mitchell that Plaintiff never asked her to exchange his inhalers. Id.

The committee ultimately found Plaintiff guilty for violating the prison's rules, and accordingly recommended that certain disciplinary measures take place. Id. at ¶¶ 9-10. Defendants Hamilton and Mitchell contend their decision to find Plaintiff guilty was based on the evidence presented to them, and they further found no merit to Plaintiff's claim that the disciplinary report was written to retaliate against Plaintiff (Doc. No. 31-2, Affidavit of Kenneth Hamilton, ¶¶ 11, 12) (Doc. No. 31-2, Affidavit of David Mitchell, ¶¶ 11, 12.)

Unsatisfied with the committee's decision, Plaintiff submitted a grievance, in which he complained again that the disciplinary report was written in retaliation against him for utilizing the grievance process and for filing lawsuits against Defendants Mason and Dutton as well as other Tamms staff members (Doc. No. 39-2, Affidavit of Leslie Markel, ¶¶ 2-4). To investigate Plaintiff's allegations, Defendant Markel, the Tamms Grievance Officer, interviewed a Tamms nurse about the prison's procedures relating to inhalers. Id. at ¶10. After reviewing the disciplinary report, the shake down slip, and the committee's report about the incident, Defendant Markel, recommended to the warden that Plaintiff's grievance be denied. Id. at ¶12. She determined that Plaintiff knew about the rule limiting the number of inhalers, and Plaintiff admitted his knowledge in his written statement to the committee. Id. at ¶11. Defendant Markel maintains that her recommendation was not in retaliation for any lawsuits or grievances Plaintiff filed. Id. at ¶¶ 13-14.

Defendant Shelton Frey, the Tamms warden, never personally reviewed Plaintiff's grievance. (Doc. 39-2, Affidavit of Charlene Meskill, ¶ 9). However, Charlene Meskill, his executive secretary who had the authority to sign his signature, reviewed it on Frey's behalf because part of her duties included reviewing appealed grievances. Id. at ¶¶ 2-3, 5. Meskill ultimately concluded that Defendant Markel's recommendation to deny Plaintiff's grievance was correct and signed Defendant Frey's signature on Plaintiff's grievance. Id. at ¶¶ 9, 10, 12.

As a last resort to resolve his complaints through the prison's grievance channels, Plaintiff appealed the denial of his grievance to the ARB. See Doc. 31-2, Affidavit of Jackie Miller. Defendant Jackie Miller, an ARB chairperson, determined Plaintiff had violated prison rules concerning inhalers, and, based on the information she reviewed, upheld the denial of his grievance. Id. at ¶¶1, 11-12. Defendant Miller made this determination by reviewing Plaintiff's grievance, the grievance officer's report, Plaintiff's disciplinary report, and the adjustment committee summary. Id. at ¶5. Defendant Miller's review of these documents assured her that Plaintiff had committed the rules violations and that Plaintiff's allegations concerning staff misconduct were unfounded. Id. at ¶6. Accordingly, she wrote a letter that summarized her findings, signed it on behalf of the ARB, and forwarded the letter to Plaintiff and Defendant Frey. Id. at ¶7. Terri Anderson, the head of the ARB and Defendant Roger Walker's (the director) designee, signed Walker's signature to ...


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