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Smith v. Birkey

November 2, 2009

THOMAS WILLIAM SMITH, JR., PLAINTIFF,
v.
RICHARD S. BIRKEY, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the court are the defendants's summary judgment motion [47], the plaintiff's response [67] and the defendants' reply [69]. The defendants, RICHARD BIRKEY, BRUCE FISHER, CHARLOTTE GORDON, RICHARD HEITZ, EDWARD HUGGINS, DONALD HULICK, and AUSTIN RANDOLPH move for summary judgment pursuant to Federal Rules of Civil Procedure Rule 56(b).

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. 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.

"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). 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). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment .. Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K&R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.

Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(e) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659.

Introduction

The plaintiff, Thomas Smith is currently incarcerated at Illinois River Correctional Center. On December 10, 2007, Plaintiff filed a 42 U.S.C. §1983 complaint alleging a violation of his due process rights. Specifically, Plaintiff claims he was issued a false inmate disciplinary report on February 15, 2006. At the February 21, 2006 Adjustment Committee hearing on Plaintiff's inmate disciplinary report, he received 10 days segregation and 30 days C Grade status. The Adjustment Committee reduced the charges against Plaintiff based on the hearing. Plaintiff did not lose any good conduct credits. Defendants deny that Plaintiff's due process rights were violated because he had no liberty interest in his placement in segregation or grade status.

Undisputed Material Facts*fn1

1. Plaintiff has been incarcerated in the Illinois Department of Corrections since 1980. (Exhibit A, Thomas Smith Deposition, p. 5, lines 5-9). Plaintiff is currently incarcerated at Illinois River Correctional Center. (Exhibit A, p. 5, lines 12-14).

2. Donald Hulick was the Warden at Illinois River Correctional Center in February 2006. (Complaint, p. 1).

3. Austin J. Randolph, Jr., replaced Defendant Hulick as warden of Illinois River Correctional Center sometime after February 2006. (Exhibit A, p. 24, lines 7-9).

4. Richard Birkey was Assistant Warden at Illinois River Correctional Center for the times alleged in Plaintiff's complaint. (Exhibit A, pp. 7-8).

5. Richard Heitz was a Lieutenant at Illinois River Correctional Center for the times alleged in Plaintiff's ...


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