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Jones v. Messina

February 17, 2010


The opinion of the court was delivered by: Harold A. Baker Central District of Illinois


Before the court are Defendants' summary judgment motion [75] and the plaintiff's response [102]. In the court's January 23, 2008, it allowed the plaintiff to proceed only on his First Amendment claims that (1) Messina, Burger, McFarlen and French retaliated against him because he filed grievances; and (2) Messina violated his right to freedom of speech.


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.


Plaintiff DeAngelo Jones is an inmate of the Illinois Department of Corrections who was formerly incarcerated at Pontiac Correctional Center. Pursuant to this court's Order of January 23, 2008 [62], Plaintiff's surviving claims brought pursuant to 42 U.S.C. §1983 and the First Amendment of the United States Constitution are as follows: (1) Plaintiff claims that Defendant Messina violated his right to freedom of speech when Messina allegedly told Plaintiff to "shut up or you'll be next;" and (2) Plaintiff claims that Defendants Messina, Burger, McFarlen, and French retaliated against him for filing grievances. Defendants deny violating Plaintiff's First Amendment rights and seek summary judgment in their favor pursuant to Fed. R. Civ. P. 56(b).

Statement of Undisputed Material Facts*fn1

1. Plaintiff was formerly incarcerated at Pontiac Correctional Center, where he alleges that the events giving rise to his First Amendment claims took place. (Complaint at p.4; Deposition of DeAngelo Jones ("Plaintiff's Dep.") at p.4, attached as Exhibit E).

2. Defendants are current or former employees of the Illinois Department of Corrections. As correctional employees, the defendants have a duty to observe the conduct of offenders and prepare disciplinary reports for certain offenses. (Affidavit of Jasper Messina ("Messina Affidavit"), attached as Exhibit A; Affidavit of Michael Burger ("Burger Affidavit"), attached as Exhibit B; Affidavit of Danny McFarlen ("McFarlen Affidavit"), attached as Exhibit C; Affidavit of Glendal French ("French Affidavit"), attached as Exhibit D).

3. Plaintiff testified that he felt that Defendant Messina began harassing him as soon as Plaintiff arrived at Pontiac*fn2 . (Plaintiff's Dep. at p.6).

4. Plaintiff testified that Defendant Messina was constantly coming by his cell, "nitpicking" about the way Plaintiff kept his cell and saying unprofessional things to him, which caused Plaintiff to have to file a grievance. (Plaintiff's Dep. at pp. 6-7).

5. Plaintiff believes his grievance dated August 25 was probably the first grievance he filed about Defendant Messina's conduct. (Plaintiff's Dep. at p.8).

6. In his grievance dated August 25, 2003, Plaintiff wrote "[o]n the above date and dating back to July 2, 2003 C/O [Messina] has been harassing me from the first day of my being here in Pontiac it seems as though he has some sort of problem with me..." (Plaintiff's grievance dated August 25, 2003, attached to his Complaint as an Exhibit and attached as Exhibit F).

7. Plaintiff alleges that during morning count on November 20, 2003, he was discussing the death of another inmate with his cell mate when Defendant Messina walked by and said "shut up or you'll be next." (Plaintiff's Dep. at p.14).

8 Plaintiff alleges that his First Amendment right to Freedom of Speech was violated when Defendant Messina said "shut up or you'll be next." (January 23, 2008 Order [62]).

9. Plaintiff also alleges that the defendants retaliated against him for engaging in constitutionally protected conduct. (January 23, 2008 Order [62]).

10. Defendant Messina denies that he told Plaintiff to "shut up or you'll be next" in an attempt to prevent him from talking to his cell mate about the death of another inmate.*fn3 (Messina Affidavit).

11. Later that morning, at approximately 8:17 a.m., Defendant Messina keyed open the Plaintiff's cell so Plaintiff could attend ...

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