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Ryburn v. Westerman

March 11, 2010

THOMAS RYBURN, PLAINTIFF,
v.
DARRELL WESTERMAN AND DAVID TINDELL, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Currently pending before the Court in this case is the joint motion of Defendants Darrell Westerman and David Tindell for summary judgment (Doc. 66). Defendants served the notice (Doc. 67) required by Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982), and the motion is supported by exhibits consisting of portions of plaintiff's deposition and defendants' affidavits. Ryburn also filed memoranda and exhibits in opposition. (Docs. 73, 88, 94.)

As Ryburn's interlocutory appeal was recently dismissed by the Seventh Circuit (Doc. 101), this matter is now ripe for determination.

Ryburn's Allegations

Ryburn is an inmate in the custody of the IDOC. He sued under 42 U.S.C. § 1983 alleging that defendants retaliated against him for his exercise of his First Amendment rights.

As set forth in the amended complaint and exhibits attached thereto (Doc. 5), Ryburn alleges a series of events beginning in February, 2003. At that time, Ryburn was assigned to Menard Correctional Center. As will be seen later, many of the events recited by Ryburn have nothing at all to do with either defendant.

In February, 2003, another inmate told Westerman that Ryburn possessed a weapon which he intended to use to stab Westerman. Internal Affairs launched an investigation. A search of Ryburn's cell revealed the presence of a fan with a broken blade. A disciplinary report was written, charging him with "damage or misuse of property." It does not appear that either defendant was involved in the investigation or the issuance of the charge. After serving his time in segregation on the disciplinary ticket, Ryburn was subjected to a "retaliatory transfer" to Stateville Correctional Center. While there, he filed a number of grievances and filed a "mandamus" action asserting that he was disabled and should be transferred to an "ADA facility." The Illinois Attorney General filed a motion to dismiss the mandamus action, and, within days, Ryburn was again subjected to a "retaliatory transfer" back to Menard. Upon his arrival at Menard on June 9, 2004, the medical staff confiscated his cane and extra pillow. A few days later, his outgoing legal mail was held up and some cassette tapes were confiscated.

On June 24, 2004, Ryburn was being escorted to the law library at Menard. He was carrying an envelope which contained legal materials. He was stopped by defendant Westerman on Front Street. Westerman wrote a disciplinary report for violation of a rule which prohibited inmates from carrying envelopes. Ryburn claims that Westerman also "took/destroyed" his legal materials.

On August 3, 2004, the June 24, 2004, disciplinary report was expunged based on Ryburn's evidence that he had not been informed of the issuance of the new rule prohibiting inmates from carrying envelopes. On that same day, Ryburn had a conversation with defendant Tindell in which Ryburn told Tindell that another inmate lied to Internal Affairs back in 2003 about Ryburn and Westerman. (This is evidentially a reference to the inmate who provided the information leading to the fan blade disciplinary report.) According to Ryburn, he stated to Tindell that the inmate was a "snitch-bitch" who had lied to Internal Affairs. Another correctional officer named Howell allegedly witnessed this conversation. Tindell then "misinformed" Westerman about what had been said, telling Westerman that Ryburn had called Westerman a lying snitch-bitch. Westerman told Tindell to write a disciplinary report. Ryburn claims that he then explained to Tindell that Tindell had misunderstood him and that Tindell reported this to Westerman, but Westerman ordered Tindell to write the report anyway.

On June 23, 2005, Ryburn filed a grievance against Westerman for slander, defamation and putting his life in danger. This followed an incident in which Westerman allegedly called Ryburn a child molester. Although the grievance was stamped "received" by the grievance officer, the grievance officer later denied having received it.

On August 16, 2006, Westerman allegedly conspired with the law librarian to have Ryburn brought to the law library when he had not requested a library visit. On his way back from the commissary, Westerman "confronted" him about a lawsuit, and continues to "harass" Ryburn whenever he leaves the cellhouse.

Standard for Summary Judgment

Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Estate of Suskovich v. Anthem Health Plans of Va., Inc., 553 F.3d 559, 563 (7th Cir. 2009) (citingFed. R. Civ. P. 56(c)); accord, Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. Cir. 2008); Levy v. Minn. Life Ins. Co., 517 F.3d 519 (7th Cir. 2008).

In ruling on a summary judgment motion, the Court construes all facts and reasonable inferences in the light most favorable to the non-moving party (here, Ryburn). Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 600 (7th Cir. 2009); TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, ...


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