The opinion of the court was delivered by: Reagan, District Judge
Before the Court is a motion for partial summary judgment (Doc. 53). In this § 1983 action, plaintiff James Brown challenges four aspects of his prison confinement. This motion targets one of Brown's retaliation claims, specifically Count 4, which arose during Brown's confinement at Lawrence Correctional Center. In Count 4, Brown seeks relief from defendants Hoskinson, Bantican, Kuntz, Ryker, Ford and Walker Jr., alleging that they retaliated for his exercise of free speech rights by imposing discipline in October, 2006. The motion is opposed (Doc. 61).
I. Summary Judgment Standard
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, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
In response to summary judgment, the non-movant cannot rest on his pleadings. Rather, the non-movant must provide evidence on which the jury or court could find in favor of the non-movant. Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). As the Seventh Circuit recently explained:
[T]he non-moving party must submit evidence that there is a genuine issue for trial. The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the nonmoving party.
Giant Screen Sports v. Canadian Imperial Bank of Commerce, 553 F.3d 527, 531-32(7th Cir. 2009) (citation omitted) (citingPtasznik v. St. Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006)).
Stated another way, to counter a summary judgment motion, the nonmoving party may not simply reiterate the allegations contained in his pleadings; more substantial evidence must be presented. And a genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), or "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented." Anderson, 477 U.S. at 252.
An act performed in retaliation for the exercise of a constitutionally protected right will subject the actor to liability even where the act, if taken for a different reason, would have been proper. Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir. 1978). In order to prevail on Count 4, Brown must prove (1) that he was engaged in constitutionally protected speech and (2) that public officials took adverse actions against him. Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). He must also establish that the protected activity caused the defendant to retaliate. See Gunville v. Walker, 583 F.3d 979, 984 n.1 (7th Cir. 2009) ("Until the Supreme Court's recent decision in Gross v. FBL Financial Serv[ices], Inc., plaintiffs could prevail in a First Amendment § 1983 action if they could demonstrate that their speech was a motivating factor in the defendant's decision. After Gross, plaintiffs in federal suits must demonstrate but-for causation unless a statute (such as the Civil Rights Act of 1991) provides otherwise." (citation omitted) (citing Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343 (2009); Fairley v. Andrews, 578 F.3d 518, 525--26 (7th Cir. 2009))). At the summary judgment stage, the plaintiff must come forward with some evidence of causation; "mere speculation" is not sufficient. Rockwell Automation, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 544 F.3d 752, 757 (7th Cir. 2008).
Defendant Hoskinson argues that the evidence does not prove the third element of Brown's retaliation claim: that her actions were motivated as a response to his protected speech. The evidence, viewed in Brown's favor, shows that Hoskinson was the mailroom supervisor at Lawrence Correctional Center in 2006. In April, 2006, Brown sent packages to Mr. Salvador Godinez and Mr. Brian Fairchild. For these items, he tried to use a special procedure reserved for "legal" or "privileged" outgoing mail. Brown was dissatisfied with the manner in which the mailroom staff handled the Godinez and Fairchild materials. On April 16, 2006, he filed a grievance accusing Hoskinson of misconduct. On April 29, 2006, Brown sent a separate notice to Hoskinson, directing her to "Forward this mail without any further delay." Hoskinson did not accuse Brown of violating prison disciplinary rules at that time.
On October 24 and 25, 2006, Brown carefully reviewed regulations regarding outgoing mail and attempted to send three items using the special procedure reserved for legal mail. These items were addressed to C A Insurance, Inc.; Jenkins Foods CEO and Leslie Dardon, Spokeswoman.*fn1 All three items were returned to Brown with form requests that he use the correct procedure. One form explained that legal envelopes could not be used for regular mail. Another form explained that everything except legal and privileged mail must be left unsealed, and that the items he was mailing were non-legal. Brown formed the impression that Hoskinson mishandled his outgoing mail. Specifically, he thought she invented and implemented rules and procedures ...