United States District Court, S.D. Illinois
BRANDON L. BROOKS, #B86580, Plaintiff,
MICHAEL P. ATCHISON, et al., Defendants.
MEMORANDUM AND ORDER
M. YANDLE DISTRICT JUDGE
matter comes before the Court on Magistrate Judge Philip M.
Frazier's Report and Recommendation (“Report,
” Doc. 78) recommending that Defendants' Motion for
Summary Judgment (Doc. 68) be granted and Plaintiff's
Motion for Summary Judgment (Doc. 72) be denied. Plaintiff
objected to the Report (Doc. 80) and Defendants responded to
Plaintiff's objection (Doc. 81). Plaintiff then filed,
without leave and without stating the exceptional
circumstances for doing so as required by Local Rule 7.1(c),
a Reply (Doc. 83) and an untimely Subsequent Objection (Doc.
84). These filings will not be considered. For the following
reasons, the Report is ADOPTED in part and
REJECTED in part.
Brandon Brooks is an inmate with the Illinois Department of
Corrections (“IDOC”). Upon threshold review, the
following claims were found colorable: Plaintiff's claim
against Defendant Veath for deprivation of due process and
Plaintiff's claim against Defendant Grapperhaus for
causing an undesirable transfer of Plaintiff in retaliation
for Plaintiff's protected activity of filing grievances.
The Court adopts the portion of the Report that sets forth
the background of this case (Doc. 78, p. 2-5) and will not
repeat an overview here.
may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in a
report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court
must review de novo the portions of the report to
which objections are made. 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. “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).
Plaintiff has objected to the report in its entirety,
asserting that his “constitutional rights were violated
[and] the rights were clearly established” (Doc. 80, p.
Count I, the Court has reviewed the arguments, evidence and
Judge Frazier's analysis and finds that the Report
correctly recommends summary judgment in favor of Defendant
Veath. While Plaintiff was improperly denied the opportunity
to present witnesses at his disciplinary hearing, IDOC's
Administrative Review Board acknowledged this non-compliance
with procedures and expunged the disciplinary report from all
records. (Doc. 69-1, p. 12). The expungement came after
Plaintiff's punishment of four months in segregation was
complete. However, Veath cannot be held responsible for
Plaintiff's time wrongly spent in segregation if Veath
enjoys qualified immunity.
defendant is not entitled to qualified immunity if the
constitutional right alleged to have been violated was
clearly established when the conduct occurred. Saucier
v. Katz, 533 U.S. 194, 201 (2001). The issue of whether
Defendant Veath is entitled to qualified immunity is closely
intertwined with the issue of whether Plaintiff's
discipline imposed an “atypical and significant
hardship” on him as defined in Sandin v.
Conner, 515 U.S. 472, 485 (1995). If Plaintiff's
punishment imposed such a hardship, then he is entitled to
certain due process protections. Id. On the other
hand, if the Wolff due process protections are not
triggered, then there can be no clearly established
constitutional right to be violated.
Frazier properly analogized Plaintiff's claims to the
plaintiff's claim in Hardaway v. Meyerhoff,
wherein the plaintiff was given six months of disciplinary
segregation at Menard without Wolff due process. 734
F.3d 740, 745 (7th Cir. 2013). The Seventh Circuit found that
“the right to avoid disciplinary segregation . . . for
182 days . . . was not a clearly established right in
September 2009 when the conduct occurred.” Id.
Here, Plaintiff was held in segregation for 120 days in
March, 2012. There is no authority suggesting that this level
of punishment triggers Wolff due process. According
to Hardaway, the threshold is much higher than what
Plaintiff is asserting. As such, there was no clearly defined
constitutional right that was violated and Defendant Veath is
entitled to qualified immunity.
Count II, a plaintiff has a viable retaliation claim under
Section 1983 if: “(1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future;
and (3) the First Amendment activity was at least a
motivating factor in the Defendants' decision to take the
retaliatory action.” Bridges v. Gilbert, 557
F.3d 541, 553 (7th Cir. 2009). While a plaintiff does have a
First Amendment right to file grievances concerning his
conditions of confinement, he must do so “in a manner
consistent with legitimate penological interests.”
Watkins, 599 F.3d at 796.
was openly insubordinate when discussing the status of his
grievances with Defendant Grapperhaus (Doc. 72-4, p. 18),
which is not protected speech. However, this insubordination
must not be conflated with the protected act of writing
grievances concerning the conditions of Plaintiff's
confinement, which is the basis for this claim. Plaintiff is
not claiming that the insubordinate interactions are
protected speech. The insubordination occurred separate from
the writing and filing of the grievances. A review of the
record does not indicate anything about Plaintiff's
grievances that is inconsistent with either his status as a
prisoner or with legitimate penological interests.
there is a genuine dispute of material fact as to the third
element of the Bridges test. Plaintiff has submitted
the declaration of Jason Hanson which states that Hanson
heard Grapperhaus threaten to have Plaintiff transferred to
Hill Correctional Center if he did not stop writing
grievances. (Doc. 72-4, p. 18). Viewing this evidence in a
light most favorable to Plaintiff, a reasonable jury could
conclude that the protected act of writing grievances was a
motivating factor in Grapperhaus's decision to recommend
Plaintiff be transferred away from his family. (Doc. 78, p.
4). Defendants, therefore, are not entitled to summary
judgment on this issue. The undersigned's analysis of the
issues raised in Plaintiff's Motion for Summary Judgment
(Doc. 72) has been detailed above with respect to
Defendants' motion and will not be repeated.
foregoing reasons, Magistrate Judge Frazier's Report and
Recommendation (Doc. 78) is adopted in part and rejected in
part. Defendants' Motion for Summary Judgment (Doc. 68)
is GRANTED as to Count I and
DENIED as to Count II. Plaintiff's
Motion for Summary Judgment (Doc. 72) is
DENIED in its entirety.