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Gregory J. Turley, #N08083 v. Gary Conder

March 9, 2012

GREGORY J. TURLEY, #N08083, PLAINTIFF,
v.
GARY CONDER, BRIAN FAIRCHILD, SANDRA FUNK, DONALD HULICK,
J OHN KELL ERHOUSE, C RA I G MITCHELL, TYONE MURRAY, DAN OHLAU, ANTHONY RAMOS, DAVID REDNOUR, GARY REDNOUR, AND BETSY SPILLER, DEFENDANTS.



The opinion of the court was delivered by: Williams, Magistrate Judge:

MEMORANDUM AND ORDER

I. Introduction

Before the Court is a Motion for Summary Judgment (Docs. 134 & 135) filed by Defendants Gary Conder, Brian Fairchild, Sandra Funk, Donald Hulick, John Kellerhouse, Craig Mitchell, Tyone Murray, Don Ohlau, Anthony Ramos, David Rednour, Gary Rednour, and Betsy Spiller. Specifically, Defendants Kellerhouse, Spiller, Murray, and Hulick argue that Plaitniff is entitled to summary judgment on Plaitniff's claim that they failed to lower security level to medium. Further, Defendant Fairchild argues that Plaintiff lacks evidence that he retaliated against him. All Defendants also argue that they are entitled to summary judgment on Plaintiff's claims that he was denied a transfer request and that he was subject to a cell shakedown in retaliation for filing grievances. Plaintiff has filed a Response in opposition to Defendants' motion (Doc. 155). In response, Defendants seek to strike that Response as it contains hearsay (Doc. 160). Plaintiff has filed a Response to their motion to strike (Doc. 161). Based on the following, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion for summary judgment (Docs. 134 & 135).

II. Background

Defendants' summary judgment motion alleges that Defendants are entitled to summary judgment because Plaintiff has failed to produce evidence that any of the Defendants retaliated against him in violation of his First Amendment rights. Specifically, Defendants Kellerhouse, Spiller, Murray, and Hulick argue that Plaintiff has failed to offer any evidence that they retaliated against him by failing to lower his security level. Defendants note that the only evidence Plaintiff offers is his mere disagreement with his current security classification. Further, Defendant Fairchild argues that the only evidence Plaintiff has offered against him is that his girlfriend reported a death threat on Plaintiff and he believes that Defendant Fairchild did not follow proper procedure in handling that threat. Defendants also argue that they are entitled to summary judgment on Plaintiff's claims regarding his transfer and cell shake down because Plaintiff lacks evidence as to his transfer and he did not see the cell shake down. In support of their motion, Defendants have offered Plaintiff's deposition as an exhibit. Plaintiff has filed a Response in opposition and has provided several exhibits. The following factual background is derived from both Plaintiff and Defendants' briefs and exhibits.

Plaintiff claims that Defendants retaliated against him by refusing to lower his security level stems from an event which occurred in 2007. On February 2, 2007, Defendant Spiller placed a memo in Plaintiff's file indicating that Plaintiff had not escaped from a state prison and that he had instead escaped from Crawford County courtroom in 1980, a note which corrected an apparent mistake created in 2000 in his file which Plaintiff alleged caused him to be labeled at maximum security and high escape risk (Doc. 123 at ¶ 34; Doc. 1 Ex. D). In response to that change, Plaintiff filed a grievance on March 11, 2007 requesting that his security and escape level be returned to medium and moderate, respectively (Doc. 1 Ex. E). That grievance was ultimately denied as the staff were in the process of reclassifying Plaintiff (Id.). His escape risk was subsequently lowered to medium (Doc. 123 at ¶¶ 35-37). Defendants denied that they ever changed his security level and that he is at a medium security rating and that any change was due to clerical mistake (Id. at ¶¶39-40). They also deny that Plaintiff had a maximum security rating (Id. at ¶ 41). However, Defendants now maintain that Plaintiff's security level is maximum due to the remainder of time left on his sentence and Plaintiff maintains that he is at a maximum security level (Doc. 160; Doc. 155 Ex. B; Doc. 135-1 at p. 7)). Documents presented by Plaintiff indicate that he is still labeled as a medium security level (Doc. 155 Exs. B & C; Doc. 135-1 at p. 20).

Plaintiff's Complaint also alleges that Defendants Kellerhouse, Spiller, Ohlau, Murray, Conder, Ramos, Hulick, and Fairchild retaliated against him by denying him a transfer to another prison. Plaintiff had requested a transfer to Hill Correctional Center on 12/9/06 but was ultimately denied a transfer due to time left on his sentence (Doc. 1 Ex. F).*fn1 While Plaintiff acknowledges that he believes the transfer coordinator, Defendant Funk, was being honest in her denial, he believed that he was entitled to a transfer as he saw other inmates with more severe disciplinary histories being transferred and he felt, given his history, he would qualify for transfer as well (Doc. 135-1 at pp. 37-39). He also alleged that he wrote a grievance on various things including staff problems (Id. at pp. 40-41).

Plaintiff also alleges that Defendants Mitchell, David Rednour, Gary Rednour, Hulick, Ramos, Conder, Cowan, and Fairchild retaliated against him by conspiring to shakedown his cell, filing a disciplinary report against him, and sending Plaintiff to segregation for a wrongfully charged violation of Rule 211. This claim stems from a shakedown of Plaintiff's cell which occurred on March 20, 2007. On March 20, Defendants admit that Defendants Mitchell and Gary Rednour conducted a shakedown of Plaintiff's cell and only Plaintiff's cell property was searched (Doc. 123 at ¶¶ 67-68). Neither Plaintiff's cellmate nor any other inmates in general population were searched at that time (Id.). Plaintiff learned of the shakedown from a gallery worker as Plaintiff was in the showers during the time of the search (Doc. 135-1 at pp. 44-45).

Upon Plaintiff returning to his cell, Mitchell and Gary Rednour allegedly returned to his cell and Rednour informed Plaintiff that he thought Plaintiff was going to go to segregation (Id. at p. 46). Plaintiff was informed that he had documentation in his possession which belonged to another inmate, a violation of Rule 211 (Id. at p. 47). He was told to pack up his stuff and he was moved to segregation by Defendant Mitchell (Id. at pp. 47, 49). He received a disciplinary report for having a grievance belonging to Inmate James Patterson sometime after he was sent to segregation (Id.; Doc. 1 at Ex. G). Defendants admit that when Mitchell and Rednour searched Plaintiff's cell they found the grievance in a legal folder labeled Turley v. Bedinger (Doc. 123 at ¶ 73). Plaintiff argued before the Adjustment Committee that he was not in violation of Rule 211 because the grievance was an exhibit in a lawsuit he had filed (Doc. 1 Exs. H & I). Defendant Craig Mitchell and a David Johnson found Plaintiff guilty of Rule 211, possession of unauthorized personal information, finding that Plaintiff had failed to provide evidence that the grievance from Inmate Patterson was an "exhibit" that was attached to his lawsuit (Doc. 1 Ex. I). Plaintiff states that Mitchell was not at the Adjustment Committee hearing and that Lt. Broshears chaired the hearing, not Mitchell (Doc. 135-1 at p. 54). The Menard Orientation Manuel indicates that any person who initiated an allegation which serves as the basis for a disciplinary report, conducted an investigation, witnessed, or is otherwise not bias cannot serve on the Adjustment Committee hearing (Doc. 1 Ex. J). Defendant Hulick approved the finding and Plaintiff was sentenced to two months segregation (Doc. 1 Ex. I). Prior to these events, Plaintiff had submitted four grievances over the course of nine days prior to the shakedown including an "inflammatory" emergency grievance directed to the Warden the day prior to the shakedown (Doc. 135-1 at pp. 50-52).

III. Summary Judgment Standard

Summary Judgment is proper only "if the admissible evidence considered as a whole shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Dy n e g y Mktg . & Trad e v. Mu lti Co rp ., 648 F.3d 506, 517 (7th Cir. 2011) (internal quotation marks omitted)(citing FED.R.CIV.P. 56(a)); s e e als o Ru ffin -Th o m p kin s v . Exp e rian In fo rm atio n So lu tio n s , In c ., 422 F.3d 603, 607 (7th Cir. 2005).. The party seeking summary judgment bears the initial burden of demonstrating - based on the pleadings, affidavits, and/or information obtained via discovery - the lack of any genuine issue of material fact. Ce lo te x Co rp . v . Catre tt, 477 U.S. 317, 323 (1986).

After a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." An d e rs o n v . Lib e rty Lo b b y , In c ., 477 U.S. 242, 250 (1986)(quoting FED.R.CIV.P. 56(e)(2)).*fn2 A fact is material if it is outcome determinative under applicable law. An d e rs o n , 477 U.S. 242, 248 (1986); B allan c e v . City o f Sp rin g fie ld , Illin o is Po lic e De p artm e n t, 424 F.3d 614, 616 (7th Cir. 2005); Ho tte n ro th v . Villag e o f Slin g e r, 388 F.3d 1015, 1027 (7th Cir. 2004). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." An d e rs o n , 477 U.S. at 248. "A mere scintilla of evidence in support of the nonmovent's petition is insufficient; a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion." Alb ie ro v . City o f Kan kake e , 246 F.3d 927, 931-32 (7th Cir. 2001) (citations and quotations omitted).

On summary judgment, the Court considers the facts in the light most favorable to the non-movant. Srail v . Vill. o f Lis le , 588 F.3d 940, 948 (7th Cir. 2009). The Court adopts reasonable inferences and resolves doubts in the non-movant's favor. Id .; Nat'l Ath le tic Sp o rts w e ar, In c . v . We s tfie ld In s . Co ., 528 F.3d at 512. Even if the facts are not in dispute, summary judgment is inappropriate when the information before the court reveals that "alternate inferences can be drawn from the available ...


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