United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
MICHAEL J. REAGAN Chief Judge.
to 42 U.S.C. § 1983, pro se Plaintiff Pierre
Montanez, filed a complaint against Kimberly Butler and Minh
Scott, individually and in conspiracy, for retaliating
against him by filing a false disciplinary report and finding
him guilty because he would not testify falsely for them and
implicate his cellmate (Count 1) and for denying his due
process and equal protection rights by refusing to conduct an
investigation and administer a polygraph test before issuing
a predetermined conviction in a disciplinary hearing (Count
2). This matter is before the Court on Defendants' motion
for summary judgment (Docs. 146 and 147). Plaintiff has filed
a response (Doc. 151) in opposition to the motion. Plaintiff
has also filed his own motion for summary judgment (Doc. 130)
to which Defendants have responded (Doc. 143). Based on the
following, the Court GRANTS IN PART and DENIES IN PART
Defendants' motion for summary judgment and DENIES
Plaintiff's motion for summary judgment.
allegations stem from a search of his cell by the tactical
team at Menard Correctional Center during which a weapon was
found. (Doc. 22, p. 4). Plaintiff alleges that Kimberly
Butler, who was warden at the time, told him that he would be
protected from punishment if he testified that the weapon
belonged to his cellmate, Geoffrey Freeman. If Plaintiff did
not, then Butler warned him that he would be found guilty of
possessing the weapon. Plaintiff refused to testify against
his cellmate, and they were both issued disciplinary reports
for possessing dangerous contraband. Id. at 5.
Plaintiff alleges that this was done out of retaliation for
his failure to provide false testimony against his cellmate.
Id. Plaintiff further alleges that during the review
of his disciplinary report before the adjustment committee he
was denied due process when Defendant Minh Scott, the
adjustment committee chairperson, refused to conduct an
investigation or a polygraph examination. Id.
Plaintiff also alleges that he was denied the investigation
and polygraph because he is African-American and that white
inmates are routinely afforded these protections in their
search giving rise to this suit was conducted on April 14,
2014, by Correctional Officer Alwerdt. (Doc. 147-1, p. 6,
10). The disciplinary report indicates that Alwerdt shook
down the cell shared by Plaintiff and Freeman. (Doc. 147-1,
p. 10; 151-1, p. 3). Alwerdt noticed a pillow on
Freeman's bunk with missing stitches and, inside the
pillow, found a weapon in the pillow stuffing made out of a
lid of a property box. Id. According to
Plaintiff's affidavit,  he then was confronted by Warden
Butler who directed him to falsely accuse Freeman of
possessing the weapon. (Doc. 151-1, p. 4). Plaintiff
testified in his affidavit that Butler informed him that if
he accused Freeman then he would not be mentioned in the
disciplinary report. If, however, Plaintiff refused to
cooperate, then Butler had already instructed Defendant Scott
to find Plaintiff guilty of possessing dangerous contraband.
Id. at p. 5. Both Plaintiff and Freeman were issued
disciplinary reports for possessing the weapon on April 14,
2014. (Doc. 147-1, p. 10 and 12). Scott testified that it is
the prison policy to issue both cellmates disciplinary
tickets when neither inmate will admit to whom a weapon
belongs. Id. at 6.
was brought before the adjustment committee, chaired by Scott
on April 16, 2014. (Doc. 147-1, p. 6; 151-1, p. 5). Scott
testified that the adjustment committee consisted of Scott
and Jason Hart, but Plaintiff testified that Scott and
Plaintiff were alone in the room and that Jason Hart was not
present. (Doc. 147-1, p. 7; 151-1, p. 6). Plaintiff further
testified that Scott informed him that Scott had been
directed by Butler to find Plaintiff guilty and that Scott
was refusing his request for an investigation and a polygraph
test. Id. at 6, 11. The disciplinary report
indicates that Plaintiff requested a polygraph examination
and also that he called Inmate Freeman as a witness. (Doc.
147-1, p. 10). According to Scott, Plaintiff was found guilty
based on the disciplinary ticket, the reporting officer's
shakedown findings, Plaintiff's witnesses' testimony,
and the fact that neither Plaintiff nor his cellmate would
admit owning the weapon. (Doc. 147-1, p. 7, 11). The
adjustment committee report indicates that Plaintiff pleaded
not guilty and testified that the pillow where the weapon was
found belonged to his ex-cellmate, Inmate Watson. (Doc.
147-1, p. 11). The adjustment committee report is signed off
on by both Scott and Jason Hart. Id. Scott testified
that Butler did not instruct him to find Plaintiff guilty,
that he did not find Plaintiff guilty alone, and that he
could not find Plaintiff guilty without the entire
committee's agreement. Id. at 7-8.
was found guilty of the charge of dangerous contraband and
was sentenced to 1 year CGrade, 1 year in segregation, 1 year
commissary restriction, and 3 months yard restriction. (Doc.
147-1, p. 11). Plaintiff's disciplinary report and
sentence was ultimately expunged after Plaintiff filed a
grievance because the Administrative Review Board had
expunged Freeman's disciplinary report. (Doc. 147-1, p.
15). The ARB expunged Freeman's disciplinary report after
Freeman insisted that neither he nor Plaintiff had any
knowledge of the weapon inside the pillow. (Doc. 130-2, p.
8). The ARB also noted that the “weapon” found
was noted as being made out of the plastic from the property
box but that no further description of the
“weapon” was provided, nor was there any
indication why the item was thought to be a weapon.
Id. The ARB found that the charge was not
substantiated and ordered Freeman's charge expunged on
August 1, 2014. Id. Plaintiff's grievance was
ruled on September 4, 2014, signed off on by Warden Butler on
September 8, 2014, and his disciplinary ticket was expunged
on September 10, 2014. (Doc. 147-1, p. 14-15).
Summary Judgment Standard
Judgment is proper only “if the admissible evidence
considered as a whole shows there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Dynegy Mktg. & Trade v. Multi
Corp., 648 F.3d 506, 517 (7th Cir. 2011) (internal
quotation marks omitted) (citing FED. R. CIV. P. 56(a));
see also Ruffin-Thompkins v. Experian Info. Solutions,
Inc., 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. Celotex Corp. v. Catrett,
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.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P.
56(e)(2)). A fact is material if it is outcome determinative
under applicable law. Anderson, 477 U.S. at 248;
Ballance v. City of Springfield, Ill. Police
Dep't, 424 F.3d 614, 616 (7th Cir. 2005);
Hottenroth v. Vill. of Slinger, 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.”
Anderson, 477 U.S. at 248.
summary judgment, the Court considers the facts in the light
most favorable to the non-movant. Srail v. Vill. of
Lisle, 588 F.3d 940, 948 (7th Cir. 2009). The Court
adopts reasonable inferences and resolves doubts in the
nonmovant's favor. Id.; Nat'l Athletic
Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508,
512 (7th Cir. 2008).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 evidence.” Spiegla v.
Hull, 371 F.3d 928, 935 (7th Cir. 2004), abrogated
on other grounds by Spiegla II, 481 F.3d at 966 (7th
Cir. 2007). See also Anderer v. Jones, 385 F.3d
1043, 1064 (7th Cir. 2004).
Plaintiff also moves for summary judgment here, an additional
word about the burden of proof merits note. The Supreme Court
has reminded district courts that “in ruling on a
motion for summary judgment, the judge must view the evidence
presented through the prism of the substantive evidentiary
burden.” Anderson, 477 U.S. at 254. Thus,
where, as here, the party moving for summary judgment also
bears the burden of persuasion at trial (i.e., the movant is
the plaintiff), he must establish all the essential elements
of his claim or defense. See Celotex, 477 U.S. at
322; see also Surles v. Andison, 678 F.3d 452,
455-56 (6th Cir. 2012) (if summary judgment movant is
plaintiff, he must show that the record contains evidence
satisfying his burden of persuasion); Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (at
summary judgment state, party that bears burden of persuasion
at trial must come forward with sufficient evidence of each
essential element of its prima facie case); MOORE'S
FEDERAL PRACTICE § 56.13(1) (3d ed. 2000). This is
different from a summary judgment motion filed by a defendant
who does not bear the ultimate burden of persuasion at trial
and who can prevail just by showing an absence of evidence to
support any essential element of the nonmovant's case.
See Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th
Cir. 2013). But if the summary judgment movant does bear the
burden of proof at trial, he can prevail only by proving each
element of his case with evidence sufficiently compelling
that no reasonable jury could return a verdict for the
nonmovant. Celotex, 477 U.S. at 331 (“If the
moving party will bear the burden of persuasion at trial,
that party must support its motion with credible
evidence…that would entitle it to a directed verdict
if not controverted at trial”); see Anderson,
477 U.S. at 248.
official who retaliates against a prisoner because the
prisoner filed a grievance violates that prisoner's First
Amendment rights. DeWalt v. Carter, 224 F.3d 607,
618 (7th Cir. 2000). Establishing a § 1983 claim of
First Amendment retaliation requires a prisoner to show the
following: (1) that he engaged in a protected activity, (2)
he suffered a deprivation likely to prevent future protected
activities, and (3) there was a causal connection between the
two. Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir.
2010)(citing Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009)). A defendant can still prevail, however, if
he shows that the offending action would have happened even
if there had been no retaliatory motive, i.e. if “the
harm would have occurred anyway.” Mays v.
Springborn, 719 F.3d 631, 634 (7th Cir. 2013)(citing
Greene v. Doruff, 660 F.3d 975, 977-80 (7th Cir.
2011)).At summary judgment, “mere speculation” by
the plaintiff is insufficient to carry his burden.
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