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Steven P. Hibberd v. Joseph Jennings

March 30, 2011

STEVEN P. HIBBERD, PLAINTIFF,
v.
JOSEPH JENNINGS, ET AL., DEFENDANTS.



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

E-FILED

Wednesday, 30 March, 2011 02:42:33 PM

Clerk, U.S. District Court, ILCD

MEMORANDUM OPINION AND ORDER

Before the court are Defendants' summary judgment motion [49], Plaintiff's amended response [57] and Defendants' reply [59]. Defendants, Roger Walker, Jr., Forrest Ashby, Joseph Jennings, Julia Vincent, Philip Crary, James Watkins, Roger Zimmerman and Phillip Pool move for summary judgment pursuant to Fed. R. Civ. P. 56.

Standard

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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). 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). "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). "If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." Fed. R. Civ. P. 56(e). 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(c). 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(c)(4) (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. It is also well settled that "conclusory allegations and self-serving affidavits, if not supported by the record, will not preclude summary judgment. Keri v. Barod of Trustees of Purdue University, 458 F.3d 620, 628 (7th Cir.2006)(citing Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997).

Background

Plaintiff brings this action pursuant to 42 U.S.C. §1983 for alleged violations of his civil rights while he was incarcerated at Western Illinois Correctional Center (Western). Specifically, Plaintiff alleges that Defendants violated his right of access to the courts, his due process and free speech rights, and that they retaliated against him for filing a previous lawsuit and doing legal work for other inmates. On July 25, 2005, Plaintiff, who was assigned as a janitor, was found to be in possession of legal materials belonging to several other inmates for whom he was doing legal work. He was written a disciplinary report, found guilty and was demoted to C-grade for a month. Two months later, Plaintiff was disciplined again for possessing other inmates' legal documents, and he was demoted to C-grade again for a month.

Defendants' Undisputed Material Facts*fn1

1. At all times relevant to this case, Plaintiff was incarcerated at Western. (Complaint.)

2. At all times relevant to this case, Defendant Walker was Director of the Illinois Department of Corrections. (Complaint; Affidavit of Roger E. Walker, para. 1, attached as Ex. B.)

3. At all times relevant to this case, Defendant Zimmerman was Warden at Western. (Affidavit of Roger Zimmerman, para. 1, attached as Ex. C.)

4. At all times relevant to this case, Defendant Ashby was a member of the Adjustment Committee at Western. (Affidavit of Forrest Ashby, para. 1, attached as Ex. D.)

5. At all times relevant to this case, Defendant Jennings was a Correctional Officer assigned to Western's Intelligence unit. (Affidavit of Joseph Jennings, para. 1, attached as Ex. E.)

6. At all times relevant to this case, Defendant Vincent was a member of the Adjustment Committee at Western. (Affidavit of Julia Vincent, para. 1, attached as Ex. F.)

7. At all times relevant to this case, Defendant Crary was a Correctional Officer assigned to Western's Internal Affairs unit. (Affidavit of Philip Crary, para. 1, attached as Ex. G.)

8. At all times relevant to this case, Defendant Watkins was a Correctional Officer at Western. (Affidavit of James Watkins, para. 1, attached as Ex. H.)

9. At all times relevant to this case, Defendant Pool was a member of the Adjustment Committee at Western. (Affidavit of Phillip Pool, para. 1, attached as Ex. I.)

10. At all times relevant to this case, Defendants acted of color of state law.

11. At all times relevant to this case, Plaintiff's job assignment was as a wing porter. (Ex. E, para. 7;.Ex. G, para. 7.)

12. Plaintiff was transferred to Western on November 4, 2004, after he was disciplined for having his mother mail money to another inmate. (Affidavit of Steven Hibberd, p. 9, relevant pages of which are attached as Ex. A; Ex. D, para. 9.)

13. In that ticket, Plaintiff was also found to have had outside sources send money to unidentified inmates so that they could buy commissary items for him. (Ex. D, para. 9; Ex. D3.)

14. While at Western, Plaintiff did legal work for other inmates. (Complaint, Ex. A, p. 12-4.)

15. Prison rules allow inmates to assist each other with their legal work to the extent consistent with institutional security. (20 Ill. Admin. Code 430.30, a courtesy copy of which is attached as Ex. M.)

16. However, prison rules prohibit an inmate from possessing another inmate's legal property. (Ex. C, para. 6; Ex. E, para. 6; Ex. H, para. 5; Offense Numbers and Definitions, attached as Ex. L, Rule 308.)

17 This prohibition helps prevent inmates from bartering legal services for contraband. Allowing inmates to barter goods and services makes it harder to enforce the Department's contraband rules and creates security concerns when one inmate owes another inmate something. (Ex. C, para. 6; Ex. E, para. 6.)

18. Prison rules also prohibit inmates from possessing another inmate's personal information, including inmates number. (Ex. C, para. 7, Ex. L, Rule 211.)

19. Possession of another inmate's inmate number would allow him to steal money or charge commissary purchases from the other inmate's trust account. (Ex. C, para. 7.)

20. On July 25, 2005, Plaintiff had in his possession legal documents belonging to several other inmates when he went to the law library. (Ex. A, p. 10; Ex. E, para, 5 ; Ex. G, para. 5.)

21. Defendants Jennings and Crary found these documents during a routine search of Plaintiff. (Ex. A, p. 10; Ex. E, para. 4; Ex. G, para. 4.)

22. Inmates are commonly searched on their way into the law library because it is one of only a few places where inmates from all four wings come together, and it is common for inmates to pass contraband there. (Ex. E, para. 4; Ex. G, para. 4.)

23. After Plaintiff was found with other inmates' legal property, his cell was searched, and more legal materials belonging to another inmate was found. (Ex. A, p. 11; Ex. G, para. 8; Ex G, para. 9.)

24. The documents belong to Inmates Walter Malone, Jeffrey Estrada, Marvin Greer and Daniel Escobedo. (Ex. A, p. 13.)

25. Plaintiff had the other inmates' legal property because he was helping them with their legal matters. He was not using them to help him with his own legal matters. (Ex. A, p. 12.)

26. Plaintiff concedes he had had their documents for a few days when he was found with them. (Ex. A, p. 13.)

27. Plaintiff said he had brought them with him to the law library because he planned to return them to the inmates there. (Ex. A, p. 13.)

28. This was Plaintiff's arranged meeting place for accepting or returning other inmates' legal documents. (Ex. A, p. 14.)

29. Defendant Jennings wrote Plaintiff a disciplinary report charging Plaintiff with contraband/unauthorized property and possession or solicitation of unauthorized personal information. (Ex. D1; Ex. E, para. 9; Ex. G, para. 10.)

30. Plaintiff was served with the ticket on July 25, 2005. (Ex. D1.)

31. Defendants Pool and Ashby held an Adjustment Committee hearing on July 29, 2009. At the hearing, Plaintiff requested no witnesses, and he admitted that he was assigned as a porter and that he was in possession of other inmates' legal materials. (Ex. D, para. 4; Ex. D1; Ex. I, para. 4.)

32. The Adjustment Committee found Plaintiff guilty of both charges, based on Plaintiff's admission that he was assigned as a wing porter, and his admission that he had other inmates' legal materials. (Ex. D, para. 4; Ex. D1; Ex. I, para. 4.)

33. The Adjustment Committee's only recommendation for discipline was that Plaintiff's grade status be reduced to C-grade for one month. (Ex. D, para. 4; Ex. D1; Ex. I, para. 4.)

34. The Adjustment Committee also recommended that the contraband be disposed of in accordance with DR 501C, which gives the owner the opportunity to determine whether it will be destroyed or sent out of the institution. (Ex. D, para. 4; Ex. D1; Ex. I, para. 4.)

35. Warden Polk concurred in the recommendation. (Ex. C, para. 4; Ex. D1.)

36. After Plaintiff was served with the ticket, he obtained from the four inmates whose legal property he had affidavits in which he states that the inmates had given ...


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