Appeal from Circuit Court of Sangamon County No. 08MR59 Honorable John W. Belz, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Carla Bender 4th District Appellate Court, IL
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Pope and Knecht concurred in the judgment and opinion.
¶ 1 The plaintiff in this case is Aaron Fillmore, who was an inmate in Tamms Correctional Center. The three defendants are Linda S. Ellis, formerly a correctional officer at Tamms, and David W. Mitchell and Kenneth L. Hamilton, formerly the members of the adjustment committee at Tamms, the committee that determined the guilt or innocence of inmates charged with disciplinary offenses (20 Ill. Adm. Code 504.80(j) (2003)). (Tamms has since been closed.) In count IV of his second amended complaint, plaintiff sought relief against these defendants under section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (2006)) for retaliating against him because of his complaints about prison conditions.
¶ 2 After dismissing, with prejudice, all the counts of the second amended complaint except for count IV (735 ILCS 5/2-615 (West 2010)), the trial court granted defendants' motion for summary judgment on count IV. Plaintiff appeals from the summary judgment on that count.
¶ 3 In our de novo review (Pielet v. Pielet, 2012 IL 112064, ¶ 30), we affirm the summary judgment in part and reverse it in part. We agree with one of the points in defendants' motion for summary judgment but disagree with the other point. We agree that section 1997e(e) of the Prison Litigation Reform Act of 1995 (42 U.S.C. § 1997e(e) (2006)) bars plaintiff from recovering compensatory damages. We disagree, however, that defendants have clearly shown plaintiff's inability to prove the chilling effect of the alleged retaliation. It is unclear that the disciplinary sanctions imposed upon plaintiff would fail to chill an ordinary inmate from exercising his or her first amendment right to petition the government for the redress of grievances (U.S. Const., amend.
¶ 5 In count IV, plaintiff alleged as follows. In June and July 2007, he complained to two senior correctional officers, named Woods and Watts, that he had been "assaulted by the shower door operated by c/o Ellis." On July 17, 2007, Ellis told plaintiff she was going to write a false disciplinary report against him because of his complaints against her. On July 18, 2007, plaintiff did indeed receive a disciplinary report in which Ellis accused him, falsely, of committing the offenses of contraband/unauthorized property and trading or trafficking.
¶ 6 On July 25, 2007, the adjustment committee, consisting of Mitchell and Hamilton, held a disciplinary hearing in plaintiff's cell. After refusing plaintiff's request to produce a video recording that, according to plaintiff, would have proved he had not committed the charged offenses, Mitchell and Hamilton dismissed the charge of contraband/unauthorized property but found him guilty of trading or trafficking. They imposed punishment for that remaining offense.
¶ 7 In their brief, defendants describe the punishment as follows:
"Fillmore was disciplined with 15 days in segregation, a one-month reduction to C-grade status, and one month of commissary restrictions. [Citation to record.] The reduction in grade and commissary restriction did not affect Fillmore because his level of privileges was governed by Tamms's Behavioral Level System ('BLS'). [Citations to record.]
Based on his placement in disciplinary segregation, Fillmore's Behavioral Level was reduced to Behavioral Level One. [Citation to record.] As a result, Fillmore experienced a temporary loss of audiovisual and educational privileges, and a temporary reduction in yard time, showers per week, and commissary visits. [Citations to record.] Fillmore regained maximum privileges on February 1, 2008, when he was promoted to Behavioral Level Three. [Citation to record.]"
¶ 8 Plaintiff alleges, in count IV, that Mitchell and Hamilton found him guilty in retaliation for his testimony against Tamms officials in federal court and also in retaliation for previous grievances he had filed. Paragraphs 44 to 49 of the second amended complaint read as follows:
"44. After testifying against Tamms C-Max C.C. prison officials in the case of Gilbert v. Cook, et al. No. 01-286-CJP, United States District Court of Southern Illinois, defendant Mitchell told plaintiff that if plaintiff ever receives a disciplinary report, that he was going to find plaintiff guilty and impose punitive segregation.
45. The July 17, 2007, disciplinary report was the only report written against plaintiff since testifying against Tamms prison officials.
46. Defendants Mitchell and Hamilton stated on July 25, 2007, that plaintiff was going to be found guilty of his July 17, 2007, disciplinary report because plaintiff has filed grievances and made complaints against them.
47. Plaintiff has filed a grievance (grievance # TM-06-06-044) prior to defendant Mitchell hearing and deciding the July 17, 2007, disciplinary report.
48. Defendants Mitchell and Hamilton deliberately retaliated against plaintiff for exercising his First Amendment rights in filing grievances (TM-06-06-044) and testifying against prison officials.
49. Defendants Mitchell and Hamilton imposed punitive disciplinary action against plaintiff in an illegal act of retaliation."
¶ 9 Defendants filed a motion for summary judgment on count IV. Paragraph 4 of the motion reads: "Defendants move for summary judgment on the following grounds: First, the alleged adverse acts taken by Defendants and against Plaintiff were insufficient to 'chill' a person of ordinary firmness from engaging in protected conduct. Second, Plaintiff is barred from recovering compensatory damages."
¶ 10 The trial court granted defendants' motion for summary judgment on count IV. In its summary judgment order, the court found as follows:
"(1) That prison officials may not retaliate against inmates for filing grievances or otherwise complaining about their conditions of confinement.
(2) That, under Thomas v. Walton, 461 F. Supp. 2d 786 (2006), an alleged retaliatory act must be one that 'could be said to have had the effect of deterring an inmate of "of ...