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David Gevas v. C. Mclaughlin

January 27, 2012

DAVID GEVAS, PLAINTIFF,
v.
C. MCLAUGHLIN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE Senior United States District Judge

E-FILED

1:08-cv-01379-JBM-JAG # 194 Page 1 of 11

Friday, 27 January, 2012 04:26:53 PM

Clerk, U.S. District Court, ILCD

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants C. McLaughlin, Nicholas Bryan, Duane Price, and David Unsworth's Motion for Summary Judgment (Doc. 175) on Plaintiff's retaliation claims,*fn1 Plaintiff's Response (Doc. 186), and Defendants' Reply (Doc. 187). Defendants move for summary judgment pursuant to Federal Rules of Civil Procedure 56(b) and Local Rule 7.1(D). In consideration of the motion, Defendants' reply, and supporting memoranda of the parties, the motion is GRANTED.

BACKGROUND

Plaintiff, an inmate incarcerated in the Illinois Department of Corrections (IDOC), Tamms Correctional Center ("Tamms"), filed suit pursuant to 42 U.S.C. § 1983 against various IDOC officials for failure to protect him*fn2 from assault by a fellow inmate and claims for retaliation because he complained about an assault against an inmate by a correctional officer and had filed various other grievances.

The summary judgment motion now before the Court relates to Plaintiff's only allowable retaliation claims; by Docket Order of January 6, 2011, Judge Baker allowed Plaintiff to proceed only on his retaliation claims against Defendants McLaughlin, Bryan, Unsworth, and Price. The pertinent allegations of retaliation are found in Plaintiff's Response (Doc. 115) to Judge Harold A. Baker's Docket Order of February 18, 2010, ordering Plaintiff to "advise the Court of which defendant(s) he is claiming retaliated against him, the date of the retaliation, and the reason(s) for the retaliation and what protected activity the Plaintiff was exercising and the date he exercised the protected activity." Essentially, Judge Baker was ordering Plaintiff to conform his pleading to the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure: essentially Plaintiff is required to allege "sufficient facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007); Bissessur v Indiana University Board of Trustees, 581 F.3d 599, 602 (7th Cir. 2009). In his Response (Doc. 115), Plaintiff named all Defendants as having retaliated against him without specifying what each particular Defendant did, the date thereof, the reason for the retaliation, and the particular protected activity Plaintiff was exercising at the time. Plaintiff's Response was not in conformity with Judge Baker's Order or Rules 8 and 10 of the Federal Rules of Civil Procedure. As a consequence of that pleading deficiency, before deciding the extant summary judgment motion, the Court must first identify the plausible retaliation claims set forth by Plaintiff in his Complaint as elaborated on by his court ordered Response.

Plaintiff filed a grievance on or about February 12, 2008, regarding a violent assault of inmate Jarvis by Corrections Officer Ames on a transport bus; and later in February, Plaintiff complained of that assault in a letter to Illinois Attorney General Lisa Madigan. Plaintiff does not specify which of the Defendants, if any, took any retaliatory action against him because of that protected action.

On February 25, 2008, Plaintiff filed a Complaint regarding his medical treatment as referenced in Exhibits H1 and H2 attached to his Complaint. These exhibits indicate that Plaintiff had complained to the Illinois Department of Professional Regulation that Wexford Health Sources, Inc., a private contract provider of medical services to the IDOC was not providing all the on-site medical personnel and otherwise complying with the policies and procedures required under its contract with IDOC. Plaintiff does not specify which of Defendants, if any, took any retaliatory action against him because of that protected action.

Plaintiff alleges that on March 29, 2008, he filed a grievance regarding a "substantially high risk of serious harm" and references Exhibit C attached to his Complaint. Exhibit C is a letter from Warden Walker dated August 19, 2008, concurring in the decision of the Administrative Review Board denying Plaintiff's grievance received on May 13, 2008, concerning his cell assignment with a Security Threat Group*fn3 ("STG") inmate.

Plaintiff alleges that on March 30, 2008, he was called to meet with Corrections Officer McLaughlin who threatened Plaintiff with a year in segregation for filing the March 29, 2008 grievance, and that Plaintiff would be celled with STG individuals and exposed to the high risk of serious injury; and that if Plaintiff did not like it, he could refuse housing and go to segregation.

On April 16, 2008, Plaintiff filed a second grievance concerning his cell assignment and included the retaliatory threats by McLaughlin at the March 30, 2008 meeting, and references Exhibit B1 - B3 attached to his Complaint. This Exhibit is a copy of Plaintiff's grievance of April 16, 2008, referring to his grievance of March 29, 2008, concerning his cell assignment with an STG inmate and Defendant McLaughlin's retaliatory threats. Except for Defendant McLaughlin, ...


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