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Alan Austin v. Cleo Johnson

June 21, 2011

ALAN AUSTIN , PLAINTIFF,
v.
CLEO JOHNSON, DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

(K-71358)

MEMORANDUM OPINION AND ORDER

Plaintiff, Allan Austin (the "Plaintiff"), an inmate at Stateville Correctional Center, filed this 42 U.S.C. § 1983 action against Cleo Johnson (the "Defendant"), a disciplinary hearing officer at Stateville. Plaintiff contends that Defendant retaliated against him and violated his procedural due process right to fair disciplinary hearings when she presided over two hearings after Plaintiff had requested that she recuse herself. Plaintiff contends that Defendant was biased against him because he had previously filed a lawsuit against her, which was still pending at the time of the disciplinary hearings. Plaintiff also named as Defendants Tammy Garcia, a grievance officer at Stateville, and Melody Ford, an Illinois Department of Corrections Administrative Review Board member. On October 23, 2009, the Court dismissed Plaintiff's Complaint because he had not responded to the Defendants' Motion for a more definite statement and because it appeared to the Court, upon further review of the Complaint, that Plaintiff had not stated a valid claim. (R. 27.) Plaintiff filed a Motion for Reconsideration, then a Notice of Appeal, and later, upon this Court's request, a Motion to Reinstate with a more definite statement. (R. 30, 31, 42, 43.) While his appellate case was pending, this Court notified the Appellate Court that this Court would grant the Motion to Reconsider and to Reinstate this case for the claim against Johnson, but not the other Defendants.

(R. 45.) Following the Appellate Court's remand, this Court reinstated the case with respect to the claim against Johnson, who is the only Defendant remaining in this case. (R. 55.) Defendant has now filed a Motion for Summary Judgment and Plaintiff has responded. For the following reasons, the court grants Defendant's Motion for Summary Judgment.

I. STANDARD OF REVIEW

Summary judgment is appropriate "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining the existence of a genuine issue of material fact, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

If the moving party meets its burden of showing that there are no issues of material fact and that he is entitled to a judgment as a mater of law, the non-moving party must "go beyond the pleadings and affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact." Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 2006) (internal quotation marks and citations omitted); Celotex, 477 U.S. at 322-26. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "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 reasonable finder of fact could return a decision for the nonmoving party based upon the record. See Anderson, 477 U.S. at 252; Insolia v. Phillip Morris Inc., 216 F.3d 596, 598-99 (7th Cir. 2000).

When addressing a summary judgment motion, the Court derives the background facts from the parties' Local Rule 56.1 Statements, which assist the court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence."

Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Because Plaintiff is proceeding pro se, Defendant served him with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" as required by N.D. Ill. Local Rule 56.2.

(R. 77, Def. Rule 56.1 Statement at 1.) The notice explains the consequences of failing to properly respond to a motion for summary judgment and to the factual statements in the movant's Local Rule 56.1 Statement. (Id.) A litigant's failure to respond to a statement of fact in a Local Rule 56.1 Statement results in the court considering the uncontroverted statement admitted. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). The court may also disregard responses that do not properly cite to the record or that offer only evasive denials. Cichon v. Exelon Generation Co., L/L.C., 401 F.3d 803, 809-10 (7th Cir. 2005); Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997).

In the present case, Defendant filed a Rule 56.1 Statement and provided notice to Plaintiff of his need to respond. (R. 77.) Plaintiff responded to the summary judgment motion, (R. 82), and has submitted affidavits and supplemental facts supporting his response. (R. 81, 82.) However, he has not responded to Defendant's Rule 56.1 Statement. The court may thus consider Defendant's assertions of fact in her Rule 56.1 Statement, to the extent they are supported in the record, to be admitted. Raymond, 442 F.3d at 608. Plaintiff's submissions, including the affidavits and his response to the summary judgment motion, will also be considered. (R. 81-83.) With these standards in mind, the court considers the evidence of this case.

II. FACTS

The current § 1983 action alleges that Defendant retaliated against Plaintiff by not recusing herself from presiding over two prison disciplinary hearings, which Plaintiff had requested because Defendant had been named as a defendant in a prior § 1983 suit filed by Plaintiff. The facts of this case are as follows.

Plaintiff is an inmate incarcerated at the Stateville Correctional Center. Defendant is an Adjustment Committee Member at Stateville and presides over disciplinary hearings at the facility. (See R. 77, Def. Rule 56.1 Statement, ¶ 2.) In August 2007, prior to this suit, Plaintiff filed an § 1983 action against Defendant, alleging that a disciplinary charge against Plaintiff should have been expunged. (Id. at ¶ 5, citing Austin v. Johnson, No. 07 C 4389 (N.D. Ill.).) This court dismissed that complaint on initial review upon determining that Plaintiff had not stated a federal claim. (R. 77, Def. Rule 56.1 Statement, ¶ 6; see also Austin, No. 07 C 4389 (N.D. Ill.) (Order of Sept. 18, 2007) (Leinenweber, J.).) Because of the dismissal on initial review, summons for service of the complaint on Defendant did not issue in that case, and Defendant was never served with that complaint. (See generally Austin, No. 07 C 4389). Plaintiff sought to appeal this court's dismissal order. But, the appeal was dismissed when Plaintiff did not qualify to proceed in forma pauperis and he was unable to pay the ...


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