The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Magistrate Judge Frazier's Report and Recommendation ("R & R") (Doc. 53) wherein it was recommended the defendants' motion for summary judgment (Doc. 34) be denied in part and granted in part. Specifically, the R&R recommended summary judgment be granted as to defendants Walker and Ford because the plaintiff, Reyes, intentionally failed to exhaust administrative remedies. It was further recommended summary judgment be denied as to defendant Schorn (a.k.a. Allsup) because there is at least one genuine issue of material fact as to Reyes' first amendment claim and because Schorn does not have qualified immunity.*fn1
After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id.
The Court must review de novo the portions of the report to which specific written objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Schorn objected to the R&R claiming there was no issue of material fact and she was entitled to qualified immunity, (Doc. 54) to which Reyes responded (Doc. 55). No other objections were made and after reviewing the remaining portions of the R&R for clear error, the Court adopts the recommendations as to the remaining two defendants.
Reyes alleges Schorn unlawfully retaliated against him in violation of the First Amendment based upon a series of events. Reyes first states he angered Schorn after she persuaded him to request four photocopies (costing $5.20) of a document when he believed he only needed two copies (costing $2.60). When Reyes found out he did in fact only need two copies and had paid for four, he went to share the information with Schorn but before he could, she exploded into a tirade. Reyes alleges she belittled him, indicated he should not complain because he can afford extra copies, and threatened to withhold library services on future lockdowns for anything not involving a court ordered deadline.
Reyes further states he informed library staff on September 2, 2007 he had an impending court deadline of September 28, 2007 and requested a library time for research. On September 20, 2007, Reyes requested a keycite report which he never received. An inmate law clerk named Larry told Reyes that Schorn was not addressing the requests because it was Reyes making the requests. Reyes further alleges that on January 9, 2008, Reyes received a court order extending a deadline to file a responsive pleading to January 15, 2008. On January 14, 2008, Schorn and an inmate law clerk came to Reyes' cell and asked if he had a court deadline and what he would need. He told them the deadline was the next day and he needed copies of a motion he was preparing. Reyes also indicated he sent a written request. He was then not granted the pass to pick up the copies until January 17, 2008, two days past the deadline. On January 19, 2008, Reyes received a court order dated January 17, 2008, indicating his complaint had been dismissed.
Reyes filed a complaint alleging a First Amendment retaliation claim against ten defendants employed by the Illinois Department of Corrections. Seven of those defendants were dismissed during the Court's threshold review of this case (Doc. 5) and two defendants were recommended to be dismissed in Magistrate Judge Frazier's R&R (Doc. 53). No one has objected to their dismissal. The remaining defendant therefore is the Law Librarian, Schorn. Schorn filed her motion for summary judgment claiming she should be granted summary judgment because the claims are barred by the statute of limitations, Reyes cannot support the claim he was denied access to the courts, Schorn did not retaliate, the claims against Schorn in her official capacity are barred by the Eleventh Amendment, and Schorn is entitled to qualified immunity (Doc. 35). The only remaining issues are retaliation and qualified immunity.
Schorn now objects to the finding in the R&R that a reasonable juror could find she retaliated against Reyes and maintains she is entitled to qualified immunity. Schorn specifically objects to Magistrate Judge Frazier's characterization of the statement she would withhold library services if on lockdown as a "threat" because it is the prison's policy to not provide library services unless there is a court deadline. Schorn argues that without the characterization of the statement as a "threat," a reasonable juror could not conclude she acted with a retaliatory purpose. Schorn also objects to the R&R's findings as to qualified immunity. Schorn argues there is no case law to put her on notice that following institutional policy can constitute retaliation. In response, Reyes argues it was a threat as he claimed in his grievance and it is not the Magistrate Judge's role to make credibility determinations. As to the issue of qualified immunity, Reyes states Schorn did not prove there was an institutional policy she was following and further that each particular violation of a constitutional right does not need to have previously been held to be unlawful in order to find qualified immunity does not exist.
Summary judgment is appropriate where "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Further, "[c]redibility determinations, the weighing of the evidence and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment ...