United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
Ryan Nibbe, an inmate in the custody of the Illinois
Department of Corrections (“IDOC”), brings this
action pursuant to 42 U.S.C. § 1983, alleging that his
constitutional rights were violated while incarcerated at
Lawrence Correctional Center (“Lawrence”).
Specifically, Plaintiff alleges that Defendant Brian
Livingston, a correctional officer at Lawrence, used
excessive force against him in September 2014. Nibbe further
alleges that when he complained about his conduct, Officer
Livingston threatened him. Nibbe proceeds on the following
Count 1: Officer Livingston used excessive force against
Nibbe, in violation of the Eighth Amendment, when he sprayed
Nibbe with pepper spray and slammed his face into a barbed
wire fence after handcuffing him in September 2014;
Count 2: Officer Livingston retaliated against Nibbe, in
violation of the First Amendment, by threatening him with
physical harm for filing grievances against him in September
matter is currently before the Court on Defendant's
Motion for Partial Summary Judgment (Doc. 108). Plaintiff
filed a Response (Doc. 109). For the following reasons,
Defendant's motion is GRANTED.
Ryan Nibbe was an inmate at Lawrence on September 7, 2014
(Plaintiff's Deposition, Doc. 108-1 at 14). On that day,
Nibbe initiated a fight with another inmate (Chester) while
in the chow line for evening meal (Id. at 14-16).
Officer Livingston intervened and “maced”
Chester, and then grabbed Nibbe (Id. at 15). Nibbe
alleges that Livingston handcuffed him and when he turned
around, “maced” him, walked him over to the side
and slammed his face onto the fence (Id.). Nibbe
received nine stitches for a laceration in his forehead and
two stitches in his eyelid (Id. at 28). He has a
scar over his right eye from the laceration (Id. at
36). Nibbe served one day in isolation and 18 days in
segregation for the fight and was then released back into
general population (Id. at 29, 33).
two days after Nibbe was released from segregation,
Livingston approached him and pulled him and another inmate
out of line under the guard tower (Id. at 31, 34).
Livingston said, “You put paper on me”
(Id. at 31, 34.). Nibbe responded, “Dude, I
didn't even put nothing on you yet” (Id.).
Livingston said, “Well, you know I didn't do it. I
didn't do it” (Id. at 31). Nibbe stated,
“Man, you did do it. You know there's no saving
your ass for this man. You put stitches in my face, dude, you
know, for no reason” (Id.). Livingston
responded, “Don't be putting no paper on me, man.
If you put some paper on me, there's
con[sequences]” (Id.). Nibbe answered,
“I don't give a fuck about no consequences. You put
stitches in my face.” (Id.). Nibbe then
returned to the meal line (Id.). Nibbe and
Livingston had no further interactions after this
conversation (Id. at 36). At the time of the
conversation with Livingston, Nibbe had not filed a grievance
against Livingston, but had attempted to while he was in
segregation (Id. at 35).
a month later, Nibbe timely filed a grievance against
Livingston raising excessive force and retaliation claims
(Plaintiff's Grievance, Doc. 86-4 at 20-23).
judgment is appropriate only if the moving party can
demonstrate “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions,
Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving
party bears the initial burden of demonstrating the lack of
any genuine issue of material fact. Celotex, 477
U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth
specific facts showing there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A genuine issue of material fact exists
when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Estate
of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017)
(quoting Anderson, 477 U.S. at 248). In determining
a summary judgment motion, the district Court views the facts
in the light most favorable to, and draws all reasonable
inferences in favor of, the nonmoving party. Apex
Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962,
965 (7th Cir. 2013) (citation omitted).
well settled that a prison official who takes action in
retaliation for a prisoner's exercise of a constitutional
right violates the Constitution. DeWalt v. Carter,
224 F.3d 607, 618 (7th Cir. 2000). In order for a plaintiff
to prevail on a First Amendment retaliation claim, he must
show that (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 defendant's decision to take the
retaliatory action. Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009) (citing Woodruff v. Mason,
542 F.3d 545, 551 (7th Cir. 2008)) (other citations omitted).
argues that he is entitled to summary judgment on Count 2
because Nibbe did not engage in protected speech under the
First Amendment, there is no evidence that Nibbe suffered
from an adverse action at the hands of Livingston, and
because he is entitled to qualified immunity. Livingston
asserts that because Nibbe had merely threatened to file a
grievance, but had not actually filed a grievance prior to
their conversation, he had not engaged in any protected First
Bridges, the Seventh Circuit analyzed whether a
threat to file a grievance could be deemed protected activity
under the First Amendment and held, “it seems
implausible that a threat to file a grievance would
itself constitute a First Amendment protected grievance.
Bridges, 557 F.3d at 555 (emphasis in the original).
Moreover, even if Nibbe's threat to file a grievance were