The opinion of the court was delivered by: Joe Billy McDade Senior United States District Judge
Thursday, 06 January, 2011 09:35:43 AM
Clerk, U.S. District Court, ILCD
On February 5, 2010, the plaintiff filed a motion  to proceed on his claims of retaliation. In response, after reviewing the plaintiff's complaint, on February 18, 2010, the court directed the plaintiff to advise the court which defendant(s) retaliated against him, the date of the retaliation, and the reason for the retaliation and what protective activity the plaintiff was exercising and the date he exercised the protective activity. On February 19, 2010, the plaintiff filed a motion to proceed on due process and retaliation claims . After the defendants failed to respond to the motion, the court directed the defendants to file a response. The defendants filed their response  on August 4, 2010. In the plaintiff's motion , he asked the court to proceed on additional claims of due process violation and retaliation. The court did not include these claims in the court's March 3, 2009 merit review of the plaintiff's complaint. The court only allowed the plaintiff to proceed on his failure to protect claim. In support of his request to add a due process claim to his case, the plaintiff points to the court's June 29, 2009 order where the court denied the plaintiff's motion for appointment of counsel and inadvertently stated the complaint was found to state a claim for an alleged violation to his due process rights. Following this statement, the plaintiff asserts that he diligently researched to understand the violation of his due process rights and made requests through discovery. He states that through discovery he received a ruling on the Adjustment Committee Hearing Procedures. However, because the plaintiff appealed the Adjustment Committee's decision prior to filing his complaint, the court notes that the plaintiff received this information outside of discovery, before he filed his complaint.
On August 13, 2010, the court entered an order regarding the plaintiff's motion to proceed on due process and retaliation claims , his response  to the February 18, 2010 order, and the defendants' response  to the plaintiff's motion. In the court's order, after reviewing the plaintiff's response, the court wrote that [t]he plaintiff alleged generally that Christopher McLaughlin, Nicholas Ryan, David Unsworth, Duane Price, Richard Hall, Cornealious Sanders, Michael Chapin, Steven Wright and Gerardo Acevedo retaliated against him. The court spent four to five hours reviewing the plaintiff's response  and his original complaint to which he repeatedly pointed. As a result, the court advised the plaintiff that the court and the defendants, should not have to spend four or more hours discerning the plaintiff's claims of retaliation and further advised the plaintiff that the court would not spend any more of its time on the plaintiff's clarification because the court had come to realize it was spinning its wheels and moving no closer to any determination on the plaintiff's claims. A review of the plaintiff's total response revealed that it was impossible to determine which retaliation claims are against which defendant, the date of the retaliation, the defendant's specific retaliatory act, what protected activity the plaintiff was exercising and when he exercised that protective activity. In the court's order  ruling on the plaintiff's motion , the court found that the plaintiff had failed to state a claim for a due process violation, regardless of the court's inadvertent statement in the June 29, 2009 order. As to his claims of retaliation, the plaintiff was allowed one more opportunity to state any claims of retaliation against the defendants.
On September 2, 2010, the plaintiff filed a motion for leave to proceed on claim of retaliation  and defendants filed a response  on September 14, 2010. On September 23, 2010, the court denied the plaintiff's motion because he had failed to comply with the court's August 13, 2010 order. On October 22, 2010, the plaintiff filed a motion for clarification and reconsideration of the court's September 23, 2010 order. As the plaintiff is proceeding pro se and hoping to clarify the plaintiff's claims of retaliation, on November 1, 2010, the court directed the plaintiff to file a copy of all of the grievance materials, he referred to in certain paragraphs of his "Claims of Retaliation" attached to his motion . On November 19, 2010, the plaintiff filed a motion for leave to amend his complaint. The plaintiff filed the grievance materials  on December 6, 2010. Now, although the court said it would not spend anymore time trying to glean the plaintiff's retaliation claim from his complaint  and other documents filed in this case, the court has spent two days doing what it said it would not do. The court has reviewed the plaintiff's complaint  and attachments, his "Claims of Retaliation" attached to his motion  and the grievance and disciplinary materials .
The court now considers whether the plaintiff may proceed on his retaliation claims and also revisits his already dismissed claims of due process violations. The plaintiff claims that certain of the defendants retaliated against him in violation of his First Amendment rights. Specifically, he alleges the defendants violated his First Amendment rights after writing a letter to Attorney General Lisa Madigan regarding a correction officer's assault of another inmate and because he filed grievances. The plaintiff claims that in retaliation, the defendants issued false disciplinary reports against him in violation of his First Amendment rights.
In Hanrahan v. Lane, 747 F.2d 1137, 1140-1141 (7th Cir. 1984), the Seventh Circuit stated that allegations of falsified disciplinary reports do not state a claim, provided that the required procedural due process protections set forth in Wolff v. McDonnell, 418 U.S. 539 (1974), are met. "Procedural due process protections are the major means of protection prisoners have from arbitrary government actions . . ." Id. at 141; see also McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999. However, see Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994)("Issuing false and unjustified disciplinary charges can amount to a violation of substantive due process if the charges were in retaliation for the exercise of a constitutional right."). Acts which are constitutional can become unconstitutional if done in retaliation for the exercise of a constitutionally protected right. See DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 1999)(citations omitted). "This is so even if the adverse action does not independently violate the Constitution."
A claim for retaliation is stated when a prisoner sets forth "a chronology of events from which retaliation may plausibly be inferred." Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000)(quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)). Retaliation for filing grievances can state a claim under § 1983. See Johnson v. Stovall, 233 F.3d 486, 489 (7th cir. 2000); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). Babcock v. White, 102 F.3d 267, 275 (7th Cir.1996)("The federal courts have long recognized a prisoner's right to seek administrative or judicial remedy of conditions of confinement, ..., as well as the right to be free from retaliation for exercising this right.")(citation omitted); DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.1999)("Prisoners have a constitutional right of access to the courts that, by necessity, includes the right to pursue the administrative remedies that must be exhausted before a prisoner can seek relief in court.... Thus, a prison official may not retaliate against a prisoner because that prisoner filed a grievance)(retaliation for grievance about losing prison job stated constitutional claim). See also Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) (assuming on motion to dismiss that prison grievances may be protected by speech or petition clauses of the First Amendment and right to access the courts). The plaintiff's burden is high. He of course must establish that his protected conduct was a motivating factor behind the disciplinary reports, but that will not end the inquiry. Because the ultimate question is whether events would have transpired differently absent the retaliatory motive. See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). It will not suffice for the plaintiff to show the defendants's desire to retaliate against him played a substantial part in issuing the disciplinary reports.
The plaintiff states that on February 12, 2008, he wrote a grievance against Correctional Officer Ames, not a defendant, for assaulting an inmate named Jarvis. The incident was investigated by Internal Affairs at Hill Correctional Center. However Internal Affairs never questioned the plaintiff regarding the incident. The plaintiff also claims that on March 29, 2008, he filed an emergency grievance with the warden, Acevedo*fn1 regarding his cell assignment and being placed into a cell with a "malicious security threat group individual" (hereinafter STGI). Plaintiff claims this cellmate assignment exposed him to a substantially high risk of serious harm. The plaintiff did not attach a copy of his March 29, 2008 grievance to his complaint. However, the court managed to glean some facts from statements made in his complaint and in an April 16, 2008 grievance. In the April 16, 2008 grievance, the plaintiff discusses that he had written a March 29, 2008 grievance and did not receive a response. He said in that grievance, he complained about his cellmate, John Taylor, a Vice Lord who was acting maliciously towards him. Plaintiff also stated that on March 30, 2008, Internal Affairs advised the plaintiff that Taylor was sending letters to Internal Affairs indicating he wanted to harm the plaintiff. Internal Affairs moved John Taylor to another location. The plaintiff does not allege that John Taylor harmed him. See plaintiff's April 16, 2008 grievance attached to his complaint.
The plaintiff claims that on March 30, 2008, the defendant, McLaughlin of Internal Affairs threatened him with a year in disciplinary segregation for filing his grievance. The plaintiff claims the threat was to stop him from filing further grievances, but he refused. McLaughlin then "threatened" the plaintiff and told him he would be celled with "malicious security threat group individuals and exposed to a high risk of serious injury." See the plaintiff's "Claims of Retaliation," par. 8 . In his complaint, the plaintiff claims that the next day, on March 31, 2008, McLaughlin, in retaliation [for filing grievances], assigned Inmate Lawson, a known Gangster Disciple, as the plaintiff's cellmate. Two weeks later, the plaintiff filed the April 16, 2008 emergency grievance. In that grievance he, as discussed above, made statements regarding his March 29, 2008 grievance. The plaintiff stated he should not be housed with a STGI. Plaintiff did not make any claims that Lawson had harmed him or was acting maliciously towards him. Further, the plaintiff did not mention McLaughin and he did not complain about McLaughlin's alleged threats or alleged retaliatory conduct. Plaintiff did not complain that on March 30, 2008, McLaughlin threatened him with a year in disciplinary segregation for filing a grievance or that he would assign STGIs as plaintiff's cellmates. At this point, the plaintiff had "knowledge" that McLaughlin retaliated against him for filing grievances. Nevertheless, he failed to grieve the alleged conduct of McLaughlin. However, the plaintiff filed another grievance on June 5, 2008 wherein he complained about the alleged retaliation.
The plaintiff claims that on May 8, 2008, he filed his second grievance with the grievance officer. The plaintiff does not attach a copy of this grievance. The plaintiff claims that nine days after he filed his second grievance with the grievance officer, he was intentionally and in retaliation for filing grievances and for causing the investigation of correctional officer Ames's assault on Inmate Jarvis, set up to be attacked by Inmate Adkins, a STGI. In his December 16, 2010 response  to court's November 1, 2010 order, the plaintiff asserts that it was McLaughlin that retaliated and set him up to be attacked by Inmate Adkins. The plaintiff also asserts that the defendant, Steele also retaliated, but the court notes that the plaintiff recently, November 19, 2010 , filed a motion to amend his complaint to bring this claim against Steele. Because the deadline to amend the motion had already passed, the court denied the motion on December 7, 2010. Therefore, the plaintiff cannot proceed on a claim of retaliation against Defendant Steel.
The plaintiff claims that after the assault and investigation, between May 29, 2008 and June 3, 2008, the defendants Price, McLaughlin and Unsworth met to concoct a scheme to issue a false and retaliatory disciplinary report and they recruited the defendant, Bryan to give false statements for the disciplinary report. The plaintiff claims that on June 3, 2008, Unsworth wrote a false and retaliatory disciplinary report against him to stop and punish him for exercising his First Amendment right to file grievances and to write letters to the Attorney General. In the disciplinary report, the plaintiff was charged with: 1) assaulting any person; 2) damage or misuse of property; and 3) fighting. The plaintiff also claims Unsworth's action was to cause the plaintiff ...