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Smith v. Butler

United States District Court, S.D. Illinois

November 29, 2017

MICHAEL SMITH, Plaintiff,
v.
KIMBERLY BUTLER, JEANETTE HECHT, KENT BROOKMAN, LORI OAKLEY, and BILLIE W. GREER, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL, UNITED STATES DISTRICT JUDGE.

         Now pending before the Court is the motion for summary judgment filed by Defendants on July 27, 2017 (Doc. 88). For the reasons set forth below, the motion is granted in part and denied in part.

         Introduction

         Plaintiff Michael Smith, an inmate currently incarcerated at Menard Correctional Center, filed a third amended complaint pursuant to 42 U.S.C. § 1983 on February 16, 2016 (Doc. 28). Smith alleges his constitutional rights were violated when he was retaliated against for First Amendment activity (Count I) and that his due process rights were violated during a disciplinary proceeding at Menard in November 2014 (Count II).

         Defendants now seek summary judgment on the merits of Smith's claims (Doc. 88). Smith responded to the motion on August 8, 2017 (Doc. 92). In his response, Smith states that he requires additional discovery. As explained below, Smith's request is denied in that he has failed to show, by affidavit, that he cannot present facts essential to opposing summary judgment, as required by Federal Rule of Civil Procedure 56(d).

         Background

         In October 2013, Smith began writing letters to the John Howard Association[1]after a representative from that organization toured Menard (Doc. 89-1, pp. 16-7). Smith communicated with the organization about two to three times a month if there “wasn't any immediate incidents that affected me directly.” (Id. at p. 17). His letters would include “observations [he] noticed throughout the weeks.” (Id.). Smith testified that prison staff knew of his correspondence with the John Howard Association because, after routine cell searches called shakedowns, his envelopes would be opened with the contents spread out on the floor and his bed (Id. at p. 18).

         Smith testified that officers began retaliating against him for corresponding with the John Howard Association beginning in 2013 with “little shows of harassment here and there.” For example, Smith would return to his cell to find his bedding in the toilet, his personal property and documents gone, and wet spots and foot stains on his mattress and sheets (Doc. 89-1, p. 88). There is no evidence, however, that any named Defendant had actual knowledge of the contents of these letters.

         According to Smith, the retaliation escalated in April 2014. At this time, Smith was under investigation for being the gang chief for the Latin Folks and the Maniac Latin Disciples in North 1 Cell House (Id. at pp. 38, 42). Smith claims the prison labeled him a gang chief in order to justify officers' actions that would otherwise have violated prison policies. For example, his cell was shaken down more than once in a 30-day period, which, he asserts, is normally contrary to prison regulations (Id. at p. 37). On both April 2, 2014, and April 5, 2014, Smith's cell was shaken-down, he was strip-searched, and he was interviewed for more than two hours (Id. at pp. 89-91). Smith asserts that Defendant Kimberly Butler, the Warden, was present during these shakedowns. He also believes Defendant Jeanette Hecht, an intelligence officer, was present-though he also testified his head was down (Id. at pp. 92-93). Smith alleges that the shakedowns occurred in retaliation for his communication with the John Howard Association. After the second shakedown, Smith says an investigating officer asked him about “mail that was discovered from April 2nd.” (Id. at 93). Smith also admits, however, that he was informed during the first interview that the shakedown was for investigative purposes (Id. at p. 93).

         On October 17, 2014, Smith was interviewed by Correctional Officer M. Hof, who placed Smith on investigative status “for the safety and security of the institution.” (Doc. 92-2, p. 16). Defendant Hecht had received information from confidential informants that Smith was involved in a gang and was conspiring to direct an attack on prison staff (Doc. 92-2, p. 14; Doc. 89-3, p. 3). Smith was moved from the North 1 general population unit and placed on 7 Gallery in the North 2 segregation unit (Doc. 89-1, p. 47).

         Also on October 17, 2014, Smith filed an emergency grievance regarding the interview that occurred that day, his placement on investigative status, and the destruction or loss of his personal property during his placement on investigative status. Smith sought to return to general population (Id. at pp. 18-19). While an emergency grievance is usually sent directly to the Warden, Smith's emergency grievance was responded to by Brad Bramlet, Smith's grievance counselor, on October 21, 2014 (Id.). Smith resubmitted the grievance, again as an emergency. On October 24, 2014, Warden Butler responded and indicated the grievance was not an emergency (Doc. 92-2 at p. 10). Counselor Bramlet responded to the grievance on November 14, 2014, stating that “[p]lacement is an administrative decision and is done for the safety and security of the institution.” (Id.).

         On Sunday, November 16, 2014, Smith was moved to cell 718 in North 2 (Id. at p. 43). Smith asserts that this move was retaliatory because, sometime between November 9 and November 15, a representative from the John Howard Association visited Menard for a tour and was escorted by Warden Butler and others (Id. at pp. 30-31, 99). When they got to Smith's cell, Smith “inquired” about his investigative status within the hearing of the Warden (Id. at pp. 31-32). Smith claims the cell he was moved to on November 16 had a broken toilet, no hot water, no blanket, no working fan, and none of his electronics or personal property (Id. at pp. 97, 105-06). When Smith entered the cell, he noticed the toilet didn't work and informed the gallery officer who said that a plumber would be summoned (Id. at p. 98). No plumber arrived for the week or week and a half he was housed there (Id. at p. 99).

         Smith testified that Officer Hecht and Warden Butler must have orchestrated his move to a cell with a broken toilet and no hot water because “placement doesn't have the authority” to move offenders on the weekend without “prior approval” from Internal Affairs or the Warden (Id. at p. 99, 100). While Smith was unsure whether Defendants knew the cell lacked a functioning toilet before he was placed there (Id. at p. 101), they failed to correct the conditions after he wrote informal letters and formal grievances addressed specifically to Defendants (Id. at p. 102).

         On November 17, 2014, Defendant Hecht signed a disciplinary report charging Smith with conspiracy to assault any person and security threat group (i.e., gang) activity (Doc. 92-2, p. 14). The report was served upon Smith the following day (Id.). Specifically, the report stated that Smith acted in the capacity of the Latin Folks North 1 Unit Coordinator to order an assault on Menard security staff in the North 1 cell house. Upon signing the report, Smith requested that three witnesses be called at his disciplinary hearing: inmate Sanford/Stanford, inmate Raul Fernandez (with whom he allegedly conspired), and Correctional Officer Hof (Id.).

         The Adjustment Committee held a hearing on the disciplinary report on November 20, 2014 (Doc. 92-2, p. 12; Doc. 89-1, p. 54). As soon as Smith walked into the hearing room, Defendant Kent Brookman told Smith he was getting a year in segregation (Doc. 89-1, p. 55). Smith nonetheless pleaded not guilty and provided a written statement at the hearing (along with his October 17, 2014 grievance). In the statement, Smith claimed there were technical problems with the disciplinary report and investigation (Doc. 92-2, p. 15). Specifically, Smith asserted that his 30-day investigative status ended on November 16, 2014, with no disciplinary report issued (Id.). Thus, the disciplinary report dated November 17, 2014, was untimely. He further stated that he only knew Fernandez and Sanford/Stanford in passing and that he was not guilty of the charged offenses (Doc. 92-2, p. 15). He repeated those claims verbally to the Adjustment Committee (Doc. 89-1, p. 55-6). The Adjustment Committee acknowledged his written statement and heard testimony from two witnesses, inmate Fernandez and Officer Hof (Doc. 89-3, p. 5). Fernandez simply stated he knew nothing, and Hof stated that the disciplinary report was accurate (Id.). Defendant Brookman told Smith that the testimony of Sanford/Stanford was unnecessary because there was sufficient evidence to find him guilty (Doc. 89-1, p. 58).

         The Adjustment Committee, comprised of Defendant Brookman and Jason Hart, who is not a defendant in this case, issued a final summary report on November 20, 2014. The report found Smith guilty of both conspiracy to assault and gang activity, based on the information Defendant Hecht received from the confidential informants (Doc. 89-3, pp. 5-6). Smith was sentenced to one year segregation, one year of C Grade, one year of commissary restrictions, and six months of contact visit restrictions (Id.).[2]

         On November 24, 2014, Smith was moved from cell 718 to cell 628 in North 2 (Doc. 89-1, p. 42; Doc. 89-2, ¶ 14). Smith contends this move was also done in retaliation. The cell was dark, cold, and had a metal door with only one small opening. Smith claims he was without his property and without a blanket (Id. at p. 104). He also was not allowed any yard time for five to six months from November 2014 to May 2015 (Id. at p. 109). Smith claims this period of time was unrelated to the discipline imposed by the Adjustment Committee.

         Smith wrote grievances on November 17, 18, and 20, 2014, and December 4, 2014, related to his cell conditions and the Adjustment Committee hearing (Doc. 89-1, pp. 22, 61). Smith placed these grievances in the bars of his cell to be picked up by a correctional officer, but he did not receive responses from the prison (Id. at pp. 25, 28, 29, 62). As to the November 17 grievance, Smith also “notified” the Adjustment Committee, Defendant Hecht, and prison “staff, ” as well as the state public defender and the John Howard Association (Id. at pp. 25-26). He also informed the John Howard Association and his attorneys of November 18 grievance (Id. at pp. 25, 28). After receiving no responses to his November 17, 18, and 20, 2014 grievances, Smith made a duplicate of his next grievance, dated December 4, 2014. He submitted one internally at Menard and another to the Administrative Review Board (“ARB”). (Id. at p. 62). Smith received a response from Defendant Billie Greer at the ARB, asking Smith to provide the grievance officer and Warden's response to his grievance (Id. at pp. 63-64). Smith refiled that grievance through the normal institutional channels on February 6, 2015, but received no responses (Id. at pp. 64-65).

         On January 6, 2015, Smith filed a grievance complaining about the Adjustment Committee hearing and the untimeliness of his disciplinary ticket.[3] Grievance Officer Lori Oakley responded to this grievance and the October 17, 2014 grievance on March 3, 2015 (Doc. 92-2 at p. 4). Oakley recommended that the grievances be denied, and Warden Butler concurred on March 5, 2015 (Id.). Smith appealed to the ARB on March 9, 2015 (Id.). The ARB (through Defendant Greer) concurred with the institution's response to the grievance that no violations of any regulations occurred (Id. at p. 3).[4]

         Smith submitted additional grievances on March 9, 2015, March 30, 2015, March 31, 2015, October 16, 2015, and December 16, 2015 (Id. at pp. 68, 82, 85). These grievances concerned or touched upon the disciplinary proceedings. Smith testified that he received a response to the March 9, 2015 grievance from Billie Greer at the ARB, dated May 5, 2015, stating: “The grievance was not submitted in the time frame outlined in Department Rule 504. Further, this office has previously addressed this issue on March 31, 2015. No justification provided for additional consideration.” (Id. at pp. 68-69). He also received an institutional response, signed by an unknown grievance officer, denying the grievance (Id. at pp. 69-70). Smith testified that he received responses to remaining grievances, either from the institution or the ARB, but he generally could not recall who specifically responded or what the response said (Id. at pp. 68-86). The ...


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