IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
April 17, 2013
AARON V. FILLMORE,
ROGER E. WALKER, JR., DAVID W. MITCHELL,
KENNETH L. HAMILTON, APRIL MOORE, KEN BARTLEY, AND LINDA ELLIS,
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.
¶ 4 I. BACKGROUND
¶ 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 ordinary firmness" from engaging in similar activity.'
(3) That the discipline and temporary consequences were insufficient to chill Plaintiff's first amendment rights and have the effect of 'deterring an inmate "of ordinary firmness" from engaging in similar activity.'
(4) In fact, the record shows that Plaintiff has filed three other lawsuits and filed twenty separate grievances since July 17, 2007, and was not deterred in any way by Defendants' conduct."
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 A. Exhaustion of Administrative Remedies
¶ 14 For two reasons, the trial court granted defendants' motion for summary judgment on count IV of the second amended complaint. The court accepted both of the reasons that defendants had raised in their motion. First, on the authority of Thomas, the trial court concluded that "the discipline and temporary consequences were insufficient to chill Plaintiff's first amendment rights and have the effect of deterring an inmate of ordinary firmness from engaging in similar activity." (Internal quotation marks omitted.) Second, the court concluded that "Plaintiff [was] barred by Illinois law from recovering compensatory damages."
¶ 15 On appeal, plaintiff contends that both of those conclusions, both of those reasons, are fallacious. He cites several federal cases holding that the mere issuance of a disciplinary report is in itself chilling because the threat of punishment is more than a de minimis act of retaliation (whereas, in his case, he received not only a disciplinary report but also punishment). See, e.g., Brown v. Crowley, 312 F.3d 782, 789 (6th Cir. 2002) ("A reasonable jury could conclude that being subjected to the risk of such severe sanctions for raising a legitimate complaint would deter a person of ordinary firmness from continuing to engage in that [protected] conduct." (Internal quotation marks omitted.)); Shariff v. Poole, 689 F. Supp. 2d 470, 479 (W.D.N.Y. 2010); Carter v. Dolce, 647
F. Supp. 2d 826, 834-35 (E.D. Mich. 2009). Also, plaintiff notes that the court never cited the "Illinois law" that supposedly barred him from recovering compensatory damages.
¶ 16 Initially, in their brief, defendants do not address those criticisms by plaintiff. Instead, they raise an issue that they did not raise in their motion for summary judgment: whether plaintiff exhausted his administrative remedies. Section 1997e(a) of the Prison Litigation Reform Act of 1995 (42 U.S.C. § 1997e(a) (2006)) requires an inmate to exhaust his or her administrative remedies before bringing an "action *** with respect to prison conditions under section 1983." Because plaintiff's grievance accused Ellis merely of writing a "fabricated" and "false" disciplinary report against him but did not add that her motive in doing so was to retaliate against him, defendants take the position, on appeal, that plaintiff failed to exhaust his administrative remedies.
¶ 17 Defendants acknowledge that, after the adjustment committee (consisting of Mitchell and Hamilton) denied plaintiff's grievance, he accused the committee of retaliation. In the space reserved for his response to the denial, he wrote that the denial was nothing more than a retaliation against him for the grievances he filed against the committee in the past. According to defendants, however, that was not the same as alleging retaliation by Ellis. Defendants reason: "[T]here is nothing to suggest that Mitchell and Hamilton's alleged retaliatory conduct can be imputed to Ellis, or otherwise alerted prison officials to a claim of retaliation by Ellis. Fillmore made an intentional decision to grieve retaliation by the adjustment committee but not Ellis. Therefore, he did not exhaust his retaliation claim against Ellis."
¶ 18 As we said, though, the motion for summary judgment never mentioned any failure by plaintiff to exhaust his administrative remedies. Even so, defendants insist that this omission should not stop us from considering, on appeal, whether plaintiff exhausted his administrative remedies. Defendants cite three cases in which the appellate court welcomed a new theory by the appellee, a theory that apparently never occurred to the appellee in trial court.
¶ 19 In the first case, Harlin v. Sears Roebuck & Co., 369 Ill. App. 3d 27, 32 (2006), the appellants objected to the First District that the appellee was raising issues it never raised in the summary judgment proceedings in trial court. No matter, the First District said, because it was "quite established that the appellee [might] urge any point in support of the judgment on appeal, even though not directly ruled upon by the trial court, so long as the factual basis for such point was before the trial court." (Internal quotation marks omitted.) Id.
¶ 20 In the second case, Olson v. Williams All Seasons Co., 2012 IL App (2d) 110818, ¶ 41, the Second District held: "[A]n appellee who fails to raise an issue in the circuit court may raise it on appeal to affirm the circuit court's order, if the factual basis for the issue was before the circuit court."
¶ 21 In the third case, Johnson v. Department of Corrections, 368 Ill. App. 3d 147, 149 (2006), the appellee moved, in trial court, to dismiss the complaint for failure to state a cause of action. Evidently, the motion never mentioned any failure to exhaust administrative remedies. Nevertheless, on appeal from the granting of the motion for dismissal, the Fourth District accepted the appellee's invitation to address the new issue of exhaustion of administrative remedies. Id. The Fourth District held: "Without a showing of exhaustion of remedies, [the] plaintiff [could not] establish a clear affirmative right to mandamus, contractual, or civil-rights relief on these issues." Id. at 150. In defense of its consideration of this new issue, the Fourth District said: "[A]n appellee may raise any point to support the judgment even though not raised in the trial court, so long as the factual basis for such point was before the trial court." (Internal quotation marks omitted.) Id.
¶ 22 What does it mean, though, for the "factual basis" to have been "before" the trial court? "Before" the court means "under the *** consideration" of the court. Merriam-Webster's Collegiate Dictionary 102 (10th ed. 2000). The filing of a motion does not automatically put the entire record "before" the trial court, or under its consideration. When presented with a motion for summary judgment, a trial court does not, sua sponte, trawl through the record and consider whatever it happens to haul up. Rather, there is a summary judgment procedure that must be followed. Under this procedure, the movant must present the relevant factual basis to the trial court. If the movant is the defendant, for instance, and if the defendant wishes to rely on materials already in the record-depositions and affidavits, for example-"[t]he motion should *** specify the depositions and/or affidavits on which the [defendant] relies and refer the court to the pertinent passages in those documents." 4 Richard A. Michael, Illinois Practice, Civil Procedure Before Trial § 38:5 n.5, at 320 (2d ed. 2011). In other words, the defendant has an "initial burden of production": the defendant must "suppl[y] facts that would clearly entitle it to judgment as a matter of law." (Emphasis added.) Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 689 (2000). Only if the defendant carries that initial burden of production-only if the defendant presents the specific factual basis, the evidence, that clearly entitles the defendant to judgment under the law-does the burden shift to the plaintiff to present a factual basis that arguably would entitle the plaintiff to judgment under the law. 735 ILCS 5/2-1005(c) (West 2010); Williams, 316 Ill. App. 3d at 689. Until the defendant carries that initial burden, the plaintiff remains unburdened and may rely on the complaint. "A party opposing summary judgment may rely solely upon the pleadings to create a question of material fact until the movant supplies facts that would clearly entitle it to judgment as a matter of law." (Emphasis added.) Williams, 316 Ill. App. 3d at 689.
¶ 23 This allocation of the burden matters in trial court only if it continues to matter on appeal. If, on appeal from a summary judgment, we indiscriminately regard the entire record as a potential "factual basis" on which to construct new legal theories to support the summary judgment, we effectively dispense with the summary judgment procedure or make it meaningless. We can avoid this misstep by understanding what it means for a "factual basis" to be "before" the trial court. Decisions by the supreme court suggest that, in order for a reviewing court to regard a"factual basis" as having been "before" the trial court (for purposes of the rule that a judgment may be affirmed on any factual basis that was before the trial court), the factual basis had to be actually presented to the trial court in the context of an issue "commensurate with" the issue on appeal. See, e.g., Sylvester v. Chicago Park District, 179 Ill. 2d 500, 507 (1997); Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 509 (1988); Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147 (1975); In re Estate of Leichtenberg, 7 Ill. 2d 545, 549 (1956).
¶ 24 In Greer, for example, several people who owned property near a proposed " 'rehabilitation development' " project in Chicago sued the developers of the project, claiming that certain structural features of the project violated zoning ordinances, building codes, and rehabilitation codes of the city of Chicago. Greer, 122 Ill. 2d at 470. The defendants (the developers) won in trial court, and the appellate court affirmed the trial court's judgment in part and reversed it in part: the appellate court affirmed the decision in the defendants' favor on the zoning ordinance claim but reversed the decision in the defendants' favor on the building code and rehabilitation code claims. Id. at 471.
¶ 25 The defendants appealed to the supreme court, and, for the first time, they challenged the plaintiffs' standing: they argued that the plaintiffs lacked standing to enforce compliance with the building codes and rehabilitation codes. Id. at 508. The plaintiffs argued, however, that, because the defendants had not raised the issue of standing in trial court, they had forfeited that issue and could not raise it on appeal. Id.
¶ 26 In response, the defendants reminded the supreme court that they were the prevailing parties in the trial court-they had won across the board in trial court-and they pointed out that "an appellee [might] defend a judgment on review by raising an issue not previously ruled upon by the trial court if the necessary factual basis for the determination of such a point [was] contained in the record." Id. at 508-09. But the supreme court held that rule to be inapplicable unless the issue the appellee raised on review was "commensurate with" an issue raised in the trial court. Id. at 509. The supreme court said:
"[The defendants] cite the rule that an appellee may defend a judgment on review by raising an issue not previously ruled upon by the trial court if the necessary factual basis for the determination of such a point is contained in the record. [Citation.] This rule is clearly inapplicable. While the issue raised on appeal need not have been previously ruled upon, it must at least be commensurate with the issues presented at trial. [Citation.] Here, the [defendants] did not present the issue of standing at trial. In consequence, the record is devoid of a factual basis for determining the issue of standing; we cannot say whether the standing of the appellees is based only upon proximity to the development or upon some other additional injury. Nor were the appellees put on notice that such proof was required." Id. at 508-09.
Thus, in order for an appellee to raise an issue in defense of the trial court's judgment, it is not necessary that the trial court actually ruled on that issue; but it is necessary that the appellee raised that issue to the trial court.
¶ 27 Or at least the issue the appellee raises on appeal must be "commensurate with" an issue raised in trial court. Id. at509. Actually, "commensurate," in this context, is not quite the right word. "Commensurate" means "equal in measure or extent" or "corresponding in size, extent, amount or degree." Merriam-Webster's Collegiate Dictionary 230 (10th ed. 2000). One might say, for example, "The President deployed a number of troops commensurate with the threat" or "He was paid a salary commensurate with his experience," but not, it would seem, "This issue is commensurate with that issue." Instead, the supreme court seems to mean that, although the issue on appeal need not have been raised in the same words in the trial court, it had to be fairly and intelligibly raised in the trial court.
¶ 28 As authority for its holding, in Greer, that the issue the appellee raised on appeal had to be "at least be commensurate with the issues presented at trial," the supreme court cited Leichtenberg. Greer, 122 Ill. 2d at 509. That case concerned the inheritance rights of Victor Mueller. Victor was born in Wisconsin, and he resided there with his parents, Anna and Jacob Mueller, until he was 10 years old, at which time, in 1918, he was taken to Chicago, Illinois, where he immediately was adopted by his aunt and uncle, Barbara and John Leichtenberg. Leichtenberg, 7 Ill. 2d at 547. Apparently, this adoption was calculated to exempt the uncle from being drafted during World War I. In re Estate of Leichtenberg, 5 Ill. App. 2d 336, 338 (1955). Victor became homesick in Chicago, and in two weeks he was returned to his natural parents in Wisconsin, who, in 1920, filed a petition in a Wisconsin court to readopt him. Leichtenberg, 7 Ill. 2d at 547. The Leichtenbergs consented to the proposed readoption, and the Wisconsin court entered an order declaring Victor to be restored to his natural parents as if no adoption ever occurred. Id.
¶ 29 John Leichtenberg died in 1936, and the Cook County probate court found, without objection, that he had left no natural or adopted children surviving. Id. Barbara Leichtenberg died in 1952, and, this time, there was an objection to the proposed finding that Barbara had left no natural or adopted children surviving: Victor claimed he was still her adopted child. Id. at 547-48. The Cook County probate court agreed with Victor; it held that his readoption by his natural parents had not extinguished his right to inherit from his first adoptive parents, the Leichtenbergs. Id.
¶ 30 Barbara's blood relatives appealed to the appellate court, which reversed the trial court's judgment. Id. at548. The appellate court held that Victor's readoption did indeed bar him from inheriting from Barbara. Id.
¶ 31 Victor in turn appealed to the supreme court (id.), which affirmed the appellate court's judgment (id. at 552). One of the arguments that Victor made to the supreme court in his unsuccessful appeal was as follows: "[A] Wisconsin statute prevented the adoption of a child by his natural parents, *** the readoption decree was therefore void upon its face, and for that reason it could have had no effect upon the relationship created by the prior Illinois decree." Id. at 548. Victor also had made this argument to the appellate court, but the appellate court had held that-even though Victor was the appellee-he had forfeited this argument by failing to make the argument in the trial court. Id. The supreme court agreed with the appellate court; it rejected Victor's assumption that, as an appellee, he was free to raise any new theory that he could devise in support of the trial court's judgment in his favor. Id. The supreme court said:
"We have frequently held that the theory upon which a case is tried in a lower court cannot be changed on review. [Citations.] To do so would not only greatly prejudice the opposing party but would also weaken our system of appellate jurisdiction. In so holding, however, we are not unmindful of the principles laid down by this court in Becker v. Billings, 304 Ill. 190, and other cases which followed. On these and other occasions we have said that although an appellant's scope of review is limited by his assignment of errors, an appellee may sustain the lower court decree by any argument based upon issues appearing in the record. Therefore, when the questions of statutory limitations [citation]; unconstitutionality [citation]; plaintiff's negligence [citation]; and scope of the Workmen's Compensation Act [citation], were raised in the trial court, the appellee was free, upon review, to support the prior decision by any argument which was commensurate with the issues presented therein. In the present case, however, no issue as to the validity of the Wisconsin decree was presented in the lower courts. For that reason, this contention will not now be considered upon review." Id. at 548-49.
¶ 32 So, to recap, in Greer, the supreme court declined to consider a new argument by the appellee which, if the appellee had made the argument in the trial court, might have led to a further development of the factual record (and, by "appellee," we mean the party defending the trial court's judgment). The supreme court remarked: "Here, the [defendants] did not present the issue of standing at trial. In consequence, the record is devoid of a factual basis for determining the issue of standing; we cannot say whether the standing of the [plaintiffs] is based only upon proximity to the development or upon some other additional injury. Nor were the [plaintiffs] put on notice that such proof was required." Greer, 122 Ill. 2d at 509. See also Kravis, 60 Ill. 2d at 147; Hux v. Raben, 38 Ill. 2d 223, 225 (1967); Evans v. United Bank of Illinois, N.A., 226 Ill. App. 3d 526, 530 (1992). If, in the trial court, the Greer defendants had raised the issue of standing, the plaintiffs might have adduced evidence showing specifically how the ordinance violations would have harmed them.
¶ 33 But the case that Greer cited, Leichtenberg, went further than the rationale of protecting the opposing party from being deprived of an opportunity to respond with evidence. In Leichtenberg, the appellee likewise made an argument that he had not made in trial court, but this new argument was purely a legal argument that would not have occasioned a further development of the factual record in the trial court if he had made the argument there. The new argument, again, was that "a Wisconsin statute prevented the adoption of a child by his natural parents," with the result that "the [Wisconsin] readoption decree was *** void upon its face." Leichtenberg, 7 Ill. 2d at 548. Addressing that new argument on appeal would not have deprived Barbara Leichtenberg's relatives of an opportunity to adduce proof, because no additional proof could have possibly been relevant to that argument: the argument called for the interpretation of Wisconsin statutory law and, perhaps also, Wisconsin case law-nothing more. Even so, the supreme court declined to consider this new argument by Victor Mueller, the appellee, precisely because the argument was new: it was not "commensurate with the issues presented" in the trial court. Id. at 549.
¶ 34 Likewise, in the present case, failure to exhaust administrative remedies is not "commensurate with" either of the issues that defendants raised in their motion for summary judgment. Defendants raised only two issues in their motion: (1) whether "the alleged adverse acts taken by Defendants against the Plaintiff were insufficient to 'chill' a person of ordinary firmness from engaging in protected conduct" and (2) whether the Prison Litigation Reform Act barred plaintiff from recovering compensatory damages. Neither of those issues fairly and intelligibly invoked the doctrine of exhaustion of administrative remedies.
¶ 35 Even if the exhaustion doctrine called for only a legal analysis, Leichtenberg would bar defendants from raising it for the first time on appeal. But the doctrine calls for more than a legal analysis; it has a factual component, and allowing defendants to invoke the doctrine now, for the first time, would deprive plaintiff of the opportunity to adduce proof that he had, in fact, exhausted his administrative remedies. "Employing the [forfeiture] rule against an appellee is particularly apt 'if the opposing party could have introduced evidence to contest or refute the assertions made on appeal, had he an opportunity to do so in the trial court.' " Evans, 226 Ill. App. 3d at 531 (quoting In re Marriage of Rodriguez, 131 Ill. 2d 273, 279 (1989)). See also Genus v. Pride Container Corp., 141 Ill. App. 3d 947, 951 (1986) ("The other issues of fact which [the movant-appellee] addresses in its briefs on appeal cannot support the entry of summary judgment on this motion because they were not properly raised for consideration on the motion for summary judgment.").
¶ 36 In summary, then, we conclude that being an appellee does not exempt a party from the rule that the issues raised on appeal must be "commensurate with" the issues raised in trial court. See Greer, 122 Ill. 2d at 509; Leichtenberg, 7 Ill. 2d at 549; Evans, 226 Ill. App. 3d at 530; Genus, 141 Ill. App. 3d at 951. Permitting changes of theory on review would, in the words of the supreme court, " 'weaken our system of appellate jurisdiction' "; and by that the supreme court seems to mean that, the more new issues a reviewing court is prepared to entertain on appeal, the more the reviewing court comes to resemble a redundant trial court. Kravis, 60 Ill. 2d at 148 (quoting Leichtenberg, 7 Ill. 2d at 548-49). To "review" means to "examine or study again." (Emphasis added.) Merriam-Webster's Collegiate Dictionary 1000 (10th ed. 2000). The set of issues a reviewing court will examine for the first time in the litigation should be limited. Otherwise, the appellate process would be compromised. What is more, allowing an appellee to defend the trial court's judgment with new theories would conflict with other aspects of the law, such as summary judgment procedure and the rule that affirmative defenses must be raised in trial court on pain of losing them (Enterprise Recovery Systems, Inc. v. Salmeron, 401 Ill. App. 3d 65, 76 (2010)).
¶ 37 Failure to exhaust administrative remedies is an affirmative defense, and the defense is forfeited if not raised in the trial court. Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 254 (2003). We hold that defendants, even though they are appellees, have forfeited their argument that plaintiff failed to exhaust his administrative remedies for purposes of the underlying summary judgment motion, because they did not make that argument in trial court. See id.; Greer, 122 Ill. 2d at 509; Leichtenberg, 7 Ill. 2d at 549; Genus, 141 Ill. App. 3d at 951.
¶ 38 B. A Deprivation Likely To Deter Similar First Amendment Activity in the Future
¶ 39 Defendants point out that, to prove a prima facie case of retaliation for exercising a first amendment right, plaintiff has to prove that (1) he engaged in an activity protected by the first amendment, (2) he suffered a deprivation likely to deter similar first amendment activity in the future, and (3) his protected activity was at least a motivating factor in defendants' decisions to take the retaliatory actions. See Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). But see Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009) (unless a federal statute says otherwise, proving but-for causation is part of the plaintiff's burden in all actions premised on federal law). Defendants' motion for summary judgment challenged the second element.
¶ 40 In arguing to the trial court that plaintiff had not suffered a deprivation likely to deter him from complaining of prison conditions in the future, defendants cited Thomas; and the court was persuaded that Thomas entitled them to summary judgment. In Thomas, 461 F. Supp. 2d at 789-90, the plaintiff was an inmate in Tamms Correctional Center, and he brought a section 1983 action against a correctional officer named Hilliard. The plaintiff alleged that Hilliard had retaliated against him for requesting an investigation of an incident in which the plaintiff had been beaten by correctional officers. Id. at 795. The alleged retaliation by Hilliard was twofold: (1) Hilliard's refusal to serve the plaintiff a lunch tray and (2) Hilliard's subsequent filing of a disciplinary report stating, falsely, that the plaintiff had refused to accept his lunch tray from Hilliard. Id.
¶ 41 The district court granted Hilliard's motion for summary judgment because the plaintiff had "failed to produce any evidence that his alleged protected speech was a substantial, motivating factor for the alleged retaliation." Id. at 796.
¶ 42 Then, in dicta, the district court remarked that, even if the record disclosed any evidence of retaliation (and it did not, in the court's opinion), the retaliation probably would be too trivial to amount to a constitutional violation. The court explained:
" '[A] court may deny an inmate leave to proceed if the allegedly retaliatory act is not one that could be said to have had the effect of deterring an inmate "of ordinary firmness" from engaging in similar activity.' [Johnson v. Kingston, 292 F. Supp. 2d 1146, 1152 (W.D. Wis. 2003)] (quoting Pieczynski v. Duffy, 875 F.2d 1331, 1333 (7th Cir. 1989)). In Bart v. Telford, 677 F.2d 622 (7th Cir. 1982), the court cautioned federal courts against entertaining retaliation claims over which 'a certain air of the ridiculous hangs,' and said, 'It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise.' Id. at 625. A number of sister circuits have adopted a similar 'de minimis' standard in evaluating retaliation claims in the prison setting. [Citations.] In this case, the Court is inclined to conclude that the retaliation alleged in Count 7 is subject to dismissal under the de minimis standard, given the trivial nature of the alleged constitutional deprivation which obviously has not deterred Thomas from bringing this suit, together with the fact that allowing such claims to proceed in federal court risks virtually endless federal judicial interference in the operation of prisons. [Citation.] However, the Court is not required to decide the question. Assuming for the sake of argument that the alleged retaliation amounts to a cognizable violation of Thomas's constitutional rights under 42 U.S.C. § 1983, Thomas has failed to produce evidence of retaliatory intent sufficient to withstand summary judgment." Thomas, 461 F. Supp. 2d at 796-97.
¶ 43 In the present case, in granting defendants' motion for summary judgment, the trial court relied on this dicta from Thomas. On appeal, defendants insist that the trial court was correct that plaintiff suffered no deprivation likely to deter first amendment activity in the future. Defendants do not cite Thomas (this time), but they argue that "[t]he Seventh Circuit's treatment of the retaliation claims raised in [Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009),] is instructive."
¶ 44 In Bridges, the plaintiff was an inmate at the Wisconsin Secure Program Facility. Id. at 544. According to the plaintiff, he had warned a correctional officer that he was going to file a grievance against her unless she stopped kicking his cell door, turning the lights of his cell on and off, and slamming his cell trap while he was sleeping. Id. at 554. For this warning, the correctional officer allegedly retaliated against him by "fil[ing] an unjustified disciplinary charge, which another Defendant upgraded to a 'major offense.' " Id. at 555. Ultimately, however, the disciplinary charge was dismissed, and for that reason, the Seventh Circuit regarded the issuance of the disciplinary charge as trivial and de minimis: "[a] single retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action." Id. Without punishment, there would be no injury and hence no deterrence, the Seventh Circuit reasoned. " 'A tort to be actionable requires injury. It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise.' " Id. (quoting Bart, 677 F.2d at 625).
¶ 45 Defendants suggest that the facts in plaintiff's case "largely" track those in Bridges. Defendants argue: "[T]he retaliation alleged by [plaintiff] was a one-time occurrence, based on a single disciplinary report, and involving a limited number of people. [Citation to record.] Furthermore, in [plaintiff's] case the charges were partially dismissed [in that the contraband/unauthorized property charge was deleted]. [Citation to record.] Thus a comparison with the claims alleged in Bridges shows that the circuit court did not err in holding that the retaliation alleged was insufficient to deter an inmate of ordinary firmness from engaging in similar activity."
¶ 46 The trouble with this reasoning is that defendants identify certain incidental facts in Bridges that they regard as important but there is no textual evidence that the Seventh Circuit regarded those particular facts as important. In its discussion in Bridges, the Seventh Circuit did not appear to attach any significance to whether the retaliation was a one-time occurrence involving a "limited" number of people. The Seventh Circuit never said that, in order to be actionable under section 1983, retaliation had to be repeated and had to be inflicted by a multitude of people. By that logic, a one-time beating by a solitary correctional officer could not be an actionable retaliation. Instead, the Seventh Circuit attached significance to the fact that the disciplinary charge in that case had been dismissed, without the imposition of any punishment: "A single retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action." Bridges, 557 F.3d at 555.
¶ 47 In the present case, by contrast, not all the disciplinary charges were dismissed. Plaintiff faced two charges, and only one of the charges, the charge of contraband/unauthorized property, was dismissed. The adjustment committee found him guilty of the other charge, the charge of trading or trafficking, and various officials of the Department of Corrections (DOC) punished him for that charge.
¶ 48 And the punishment was considerably more robust than the alleged retaliation of which the plaintiff complained in Thomas, i.e., a correctional guard's refusal to serve him a lunch tray on a single occasion (Thomas, 461 F. Supp. 2d at 795). It took plaintiff six months to work his way back up to Behavioral Level Three, and presumably he lost, or did not receive, good-conduct credits.
¶ 49 Granted, the punishment was, as defendants say, temporary, but surely defendants do not mean to contend that punishment must be unending to have a chilling effect. Taking Bridges at face value, all that matters is that the inmate was disciplined for complaining about prison conditions. Bridges says that "retaliatory discipline" is actionable under section 1983. Bridges, 557 F.3d at 552. See also Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006) ("First Amendment rights to free speech and to petition the government for a redress of grievances are violated when a prisoner is punished for filing a grievance concerning the conditions of his imprisonment."); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988). Temporary discipline is not necessarily de minimis.
¶ 50 By discounting the discipline imposed on plaintiff, by arguing that such discipline would be unlikely to deter an inmate of ordinary firmness, defendants put themselves, or at least their employer, in an untenable position. Essentially, defendants suggest that an ordinary inmate would consider DOC's disciplinary sanctions for trading or trafficking to be "trivial" or "de minimis." Thomas, 461 F. Supp. 2d at 797. They imply that a "certain air of the ridiculous" hangs over any claim that the discipline DOC prescribes for this misconduct would likely deter an ordinary inmate-whereas discipline, by its very nature, is calculated to deter inmates and to change their behavior. (Internal quotation marks omitted.) Id. at 796.
¶ 51 And yet plaintiff has not been deterred, defendants observe. Since July 17, 2007, when Ellis wrote her disciplinary report, he has filed 20 grievances and 4 lawsuits.
¶ 52 Even so, that merely shows that plaintiff is extraordinarily litigious. His personal reaction to the alleged retaliation is not the question. The relevant standard is not subjective, but objective: the effect the retaliation would have on an ordinary prisoner. Bridges, 557 F.3d at 555. That plaintiff has continued to file grievances and lawsuits arguably shows that he is an innmate of more than ordinary firmness. His individual behavior does not necessarily align with the objective standard. See Brodheim v. Cry, 584 F.3d 1262, 1274 (9th Cir. 2009); Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004). If the test were whether the plaintiff-inmate subjectively was chilled, no inmate could obtain judicial relief from retaliation against first amendment activity, because the very filing of the section 1983 lawsuit would prove that the retaliation was not chilling.
¶ 53 So, we are unconvinced that plaintiff clearly is unable to prove the tendency of the alleged retaliation to chill ordinary inmates from petitioning the government for the redress of grievances. In our de novo review, we find that defendants failed to carry their initial burden in the summary judgment procedure: they failed to establish plaintiff's clear inability to prove that the punishment he incurred, ostensibly for trading or trafficking, would deter an inmate of ordinary firmness from complaining further of prison conditions. See Williams, 316 Ill. App. 3d at 688-89; Bart, 677 F.2d at 625.
¶ 54 C. Causation
¶ 55 The members of the adjustment committee, Mitchell and Hamilton, argue that we should affirm the summary judgment in their favor because plaintiff "cannot show causation, where [he] has not offered evidence establishing that the alleged retaliatory motive was a 'necessary condition' for the adjustment committee to find him guilty." See Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012).
¶ 56 But plaintiff had no occasion to offer such evidence, because, in their motion for summary judgment, defendants did not challenge causation. See Williams, 316 Ill. App. 3d at 689; 4 Richard A. Michael, Illinois Practice, Civil Procedure Before Trial § 38:5, at 319-20 (2d ed. 2011). Of the three elements of plaintiff's prima facie case, they challenged only the chilling effect of the retaliation.
¶ 57 Again, the three elements of the prima facie case are as follows: (1) plaintiff engaged in activity protected by the first amendment, (2) he suffered a deprivation likely to deter similar activity in the future, and (3) his protected activity motivated defendants to take the retaliatory action. See Kidwell, 679 F.3d at 964. In their motion for summary judgment, defendants did not challenge either (1) or (3); they challenged only (2). Because the issue of causation was not before the trial court in the summary judgment proceeding, it is not before us, either. See Greer, 122 Ill. 2d at 509; Kravis, 60 Ill. 2d at 147; Leichtenberg, 7 Ill. 2d at 549; Evans, 226 Ill. App. 3d at 530; Genus, 141 Ill. App. 3d at 951.
¶ 58 D. Compensatory Damages
¶ 59 Defendants contend that, under section 1997e(e), plaintiff cannot recover any compensatory damages, because he suffered no physical injury from their alleged retaliation. Section 1997e(e) provides: "No federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e) (2006). (But where is the "federal civil action"? An "action" is a "judicial proceeding." Black's Law Dictionary 28 (7th ed. 1999). It would seem that, although plaintiff's action is premised on a federal statute (section 1983), it is a state-court action-a proceeding in state court-not a federal action. In any event, we need not resolve that question, since none of the parties raise it.)
¶ 60 Plaintiff argues that "[a] deprivation of First Amendment rights standing alone is a cognizable injury" for which he can recover compensatory damages. Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999). Plaintiff is correct that, if a state actor deprives him of his first amendment rights, he can recover damages for this deprivation in itself as distinct from any emotional distress he might have suffered as a result of the deprivation; but these damages will be nominal rather than compensatory. Calhoun v. DeTella, 319 F.3d 936, 940-41 (7th Cir. 2003); Shatner v. Page, No. 00-0251-DRH, 2009 U.S. Dist. LEXIS 8324, at *83-84 (S.D. Ill. 2009). Therefore, we hold that the trial court is correct in its conclusion that plaintiff is barred from recovering compensatory damages, although section 1997e(e), rather than "Illinois law," is what bars him from doing so.
¶ 61 III. CONCLUSION
¶ 62 For the foregoing reasons, we affirm the trial court's judgment in part and reverse it in part, and we remand this case for further proceedings. We affirm the summary judgment insomuch as it finds that plaintiff is barred from recovering compensatory damages, but we otherwise reverse the summary judgment on count IV of the second amended complaint. We award the State $50 against defendant in costs.
¶ 63 Affirmed in part and reversed in part; cause remanded.
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