ROBERT M. DOW, JR., District Judge.
Before the Court is Defendants' summary judgment motion [78] and Plaintiff's motion for status update [96] requesting an update on the Court's ruling. For the reasons set forth below, Defendants' motion for summary judgment [78] is granted in part and denied in part. Summary judgment is entered in favor of Defendants Utke, Kits, and Tomaras. Summary judgment is denied as to Defendant Dybas. Plaintiff's motion for status update [96] is stricken as moot in light of this order. The case is set for further status on September 6, 2018 at 10:00 a.m. Counsel for Defendant Dybas is requested to make arrangements for Plaintiff to participate by telephone.
Plaintiff Tyrone Petties, currently an inmate in the custody of the Illinois Department of Corrections ("IDOC"), brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 against four nurses from Stateville Correctional Center. Plaintiff alleges that Defendants Heather Kits, R.N. ("Kits"), Tiffany Utke, L.P.N. ("Utke"), Wendy Dybas, R.N. ("Dybas"), and Tina Tomaras, L.P.N. ("Tomaras") committed retaliatory acts against him in violation of his First Amendment rights. With the exception of the procedural history of this case, the Court takes the relevant facts from the parties' Local Rule 56.1 statements and exhibits thereto, [80], [88], and [90]. The following facts are undisputed unless otherwise noted.
On June 30, 2016,
Defendants Dybas, Kits, Utke, and Tomaras are nurses employed by Wexford Health Services Inc. ("Wexford"). [88, Statement of Additional Facts, at ¶ 3.] In 2012, Plaintiff filed a lawsuit against former Medical Directors of Stateville—Imhotep Carter, M.D., and Saleh Obaisi, M.D. (deceased), Docket No. 12-cv-9353—regarding allegedly inadequate medical treatment for an Achilles tendon injury. [80, Statement of Facts, at ¶ 7.]
On February 28, 2014, Defendant Kits generated an Offender Disciplinary Report against Plaintiff. Id. at ¶ 8. The nature of the offense was listed as "Sexual Misconduct." Id. In this Report, Kits stated that she observed Utke ask for Plaintiff's arm to take his blood pressure. Id. Kits further stated that Plaintiff's left hand was in his pants at the time, and that she saw a creamy white substance on both of his hands after he removed his left hand from his pants. Id. Though Utke was listed as a witness on the February 28, 2014 Offender Disciplinary Report, Utke did not generate the February 28, 2014 Offender Disciplinary Report against Plaintiff. Id. at ¶ 12. Plaintiff was given six months in segregation as a result of the February 28, 2014 Offender Disciplinary Report. [88, Statement of Additional Facts, at ¶ 13.] On March 4, 2014, Plaintiff filed an Offender Grievance regarding the Disciplinary Report generated by Kits on February 28, 2014. [80, Statement of Facts, at ¶ 13.] In the Offender Grievance, Plaintiff explained that he had put his prescribed medication on his hand "in an attempt to show" Defendant Kits that it was not working. Id. He also requested that Kits and Utke be "investigated and fired." Id. The Offender Grievance is absent any indication that the February 28, 2014 Disciplinary Report generated by Kits had any connection to the 2012 lawsuit. Id.
On December 12, 2014, Dybas generated an Offender Disciplinary Report against Plaintiff. Id. at ¶ 14. The nature of the offense was listed as "Sexual Misconduct" and "Insolence." In this Report, Dybas stated that she observed Plaintiff "holding his shorts out while masturbating with [his] other hand. Ordered [inmate] Petties to stop. [Inmate] disobeyed order." Id. Plaintiff denies that he violated any institutional rules and that he exposed himself or made any sexual movements. [88, Response to Statement of Facts, at ¶ 14.] Plaintiff was given three months in segregation as a result of Dybas' disciplinary report. [88, Statement of Additional Facts, at ¶ 14.] On January 2, 2015, Plaintiff filed an Offender Grievance regarding the Disciplinary Report generated by Dybas. [80, Statement of Facts, at ¶ 17.] The Offender Grievance is absent any indication that the December 12, 2014 Disciplinary Report generated by Dybas had any connection to the 2012 lawsuit. Id.
At his deposition, Plaintiff testified that he believed that Defendants' actions against him were retaliatory based on his perception that [Dr. Obaisi] gave Defendants a look indicating that they should go after Plaintiff. Id. at ¶ 18.
On May 21, 2016, Tomaras generated an Offender Disciplinary Report against Plaintiff. [80, Statement of Facts, at ¶ 25.] The nature of the offense was listed as "Insolence" and "Attempted Sexual Misconduct." Id. In this Report, Tomaras stated: "this nurse responded to a Code #3 on the South Yard. While I was walking with the inmates trying to assess my patient, [inmate] Petties #N52785 saw that I was distracted and intentionally stopped and turned around in front of me, causing me to run into him with some force[.]" Id. On May 30, 2016, the IDOC Adjustment Committee held a hearing regarding the May 21, 2016 Disciplinary Report generated by Tomaras and dismissed the charge, finding that the disciplinary report indicated that it was Tomaras who ran into Plaintiff—not vice versa. Id. at ¶ 28. Plaintiff did not receive any discipline in connection with the May 21, 2016 incident. Id. On June 8, 2016, Plaintiff filed an Offender Grievance regarding the Disciplinary Report issued by Tomaras. Id. at ¶ 29. The Offender Grievance contains no indication that the May 21, 2016 Disciplinary Report generated by Tomaras had any connection to the 2012 lawsuit. Id. At his deposition, Plaintiff testified that the only basis of his belief that Tomaras generated the May 21, 2016 Disciplinary Report against him is "because they all (the nurses) be together, they all talk together, and they all do things together, and that's how it is." Id. at ¶ 30.
Although the parties agree on many facts, there still are many facts in dispute. For example, the parties dispute whether Plaintiff committed that acts that served as the bases of the disciplinary reports issued by Defendants. [90, at ¶¶ 7-9.] The parties also dispute whether Defendants were aware of the 2012 lawsuit and whether the 2012 lawsuit was a motivating factor for Defendants' roles in the disciplinary reports issued against Plaintiff. Id. at ¶¶ 10-12, 16-21.
"The Court shall grant summary judgment if the movant shows 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); Wackett v. City of Beaver Dam, Wis., 642 F.3d 578, 581 (7th Cir. 2011). The Court may not weigh conflicting evidence or make credibility determinations, but the party opposing summary judgment must point to evidence demonstrating a genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Group, Inc., 629 F.3d 697, 705 (7th Cir. 2011) (citations omitted). Presented evidence must be competent evidence that would be admissible at trial. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (citations omitted).
The moving party has the initial burden of showing there is no genuine dispute and he is entitled to judgment as a matter of law. Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). If the moving party meets this burden, the non-moving party must respond with specific facts showing that the jury could find in his favor, and that there is a genuine dispute that needs to be adjudicated at trial. Carmichael, 605 F.3d at 460 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Wheeler, 539 F.3d at 634). A genuine dispute is one that could change the outcome of the suit, and is supported by evidence sufficient to allow a reasonable jury to return a favorable verdict for the non-moving party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010) (citations omitted).
Defendants have moved to dismiss Plaintiff's First Amendment retaliation claim— Plaintiff's sole remaining claim. To prevail on a First Amendment retaliation claim, Plaintiff must show that: (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter future First Amendment activity; 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, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)). Here, Defendants do not contest that Plaintiff's filing of the 2012 lawsuit against Drs. Obaisi and Imhotep is sufficient to establish that Plaintiff engaged in activity protected by the First Amendment. See DeTomaso v. McGinnis, 970 F.2d 211, 214 (7th Cir. 1992) ("Because the Constitution protects an inmate's access to the courts, prison officials may not retaliate against those who seek or obtain such access—whether the retaliation takes the form of withholding property or privileges does not matter." (citing Haymes v. Montanye, 547 F.2d 188 (2d Cir. 1976)).
Defendants argue, however, that they are entitled to summary judgment because (1) Plaintiff has not come forth with sufficient evidence to establish that the alleged retaliatory acts of the Defendants were severe enough that they would deter First Amendment activity; (2) Plaintiff has not come forth with sufficient evidence to establish that the purported retaliatory acts of the Defendants were motivated by the 2012 lawsuit; and (3) Plaintiff's retaliation claim against Defendants Kits and Utke is barred by the statute of limitations. Defendants further argue that even if Plaintiff's retaliation claim survives summary judgment, his claim for punitive damages is unsubstantiated. [79, at 2.]
Plaintiff's claim describes three separate instances of disciplinary action—two of which resulted in extended periods of segregation. To the extent Plaintiff's claim is based on the Disciplinary Report issued by Defendant Tomaras—a report that did not result in any discipline or negative consequences—Plaintiff's claim fails. Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009) ("A retaliatory disciplinary charge that is later dismissed is insufficient to serve as a basis of a § 1983 action."). Thus, Plaintiff cannot proceed on his First Amendment retaliation claim against Defendant Tomaras.
However, to the extent Plaintiff's claim is based on disciplinary reports that resulted in extended periods of segregation, Plaintiff has identified sufficient evidence for a jury to find that he suffered a deprivation that would likely deter future First Amendment activity. It is undisputed that Plaintiff was given six months segregation as a result of the disciplinary report issued by Defendant Kits, in support of which Defendant Utke acted as a witness. [88, at ¶ 13.] It also is undisputed that Plaintiff was given three months segregation as a result of the disciplinary report issued by Defendant Dybas. Id. at ¶ 14. Plaintiff represents that the living conditions in the segregation unit were deplorable. Id. at ¶ 15 (citingg 88, Ex. D, at ¶¶ 14-17). For example, he indicates that the unit was infested with vermin, the windows in the cell were broken and allowed cold air to blow into the cells, and the lights remained on for 24 hrs. [88, Ex. D, at ¶ 14.] He also indicates that the unit was "mostly filled" with mentally-ill inmates who "threw feces and urine on other inmates, and, [that] on one occasion, he was attacked with feces." Id. Furthermore, it is reasonable to infer that such extended periods of segregation are themselves distressing.
Defendants argue that—even assuming the disciplinary reports against Plaintiff were false—the filing of the false disciplinary reports did not rise to the level of actionable retaliation because Plaintiff ultimately was not "silenced" insofar as he continued to file grievances and lawsuits. [79, at 6.] However, "a retaliatory action need not actually deter the plaintiff from persisting with First Amendment activity; an objective test determines whether retaliatory actions would deter a person of `ordinary firmness' from engaging in the protected activity." McKinley v. Schoenbeck, 2018 WL 1830942, at *3 (7th Cir. Apr. 17, 2018) (citing Surita v. Hyde, 665 F.3d 860, 878-79 (7th Cir. 2011)); see also Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) ("[I]t would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity." (quoting it Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)). Here, a reasonable factfinder could conclude that unjustifiably being forced to spend approximately nine months in segregation would deter a person of ordinary firmness from filing future grievances or lawsuits.
Defendants also argue that Plaintiff has not come forth with sufficient evidence to show that the 2012 lawsuit was at least a motivating factor (i.e., a sufficient condition) for the claimed retaliatory conduct. A plaintiff may demonstrate that his speech was a motivating factor behind the defendant's retaliatory actions by presenting direct or circumstantial evidence. Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012). However, a claim of retaliatory action must be supported by more than speculation. See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008); see also Rockwell Automation, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 544 F.3d 752, 757 (7th Cir. 2008). Furthermore, "protected conduct cannot be proven to motivate retaliation if there is no evidence that the defendants knew of the protected activity." Morfin v. City of E. Chi., 349 F.3d 989, 1005 (7th Cir. 2003) (internal quotations and alterations omitted).
In support of their motion, Defendants argue that Plaintiff has failed to identify credible evidence sufficient to show (1) that Defendants were aware of the 2012 lawsuit, or (2) that the lawsuit served as motivation for Defendants to issue the disciplinary tickets at issue.
Plaintiff argues that there is sufficient evidence to find that his First Amendment activity was at least a motivating factor in Defendants' involvement in the allegedly false disciplinary reports against Plaintiff. To begin, Plaintiff suggests that the verbal harassment/threats and the timing of the disciplinary reports constitute evidence of retaliation. [87, at 16.] He also points to the issuance of the disciplinary reports—for offenses he claims he did not commit and which were issued by individuals who allegedly did not have authority to issue them—as evidence of retaliation. Id. In addition, Plaintiff submitted an affidavit averring that he personally heard Defendants Dybas, Kits, and Tomaras say that they were retaliating against Plaintiff because of the lawsuit Plaintiff filed against their boss Dr. Obaisi. [88, Ex. D, at ¶ 11.] Furthermore, Plaintiff submitted the affidavit of fellow inmate Seneca Smith, who avers that Defendants Kits and Dybas told him that they each generated false disciplinary reports against Plaintiff because of the lawsuit that Plaintiff filed against Dr. Obaisi. [88, Ex. C, at ¶¶ 7-9.] Mr. Smith further attests that he personally has spoken to all Defendants about false disciplinary reports that they generated against other inmates with similar allegations, noting that musturbation disciplinary reports are not usually dismissed and result in a long period of segregation. Id. at ¶ 10.
The timing of the alleged retaliatory conduct is insufficient to preclude summary judgment in Defendants' favor. Suspicious timing alone does not support a reasonable inference of retaliation. Dace, 658 F. Supp. 2d at 881. Plaintiff "must produce evidence that somehow ties the adverse [action] to [his] protected actions. The fact that one event preceded another does nothing to prove the first event caused the second." Id. (internal citation omitted); Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir. 2008) ("mere temporal proximity is not enough to establish a genuine issue of material fact" (internal quotation omitted)). Furthermore, Plaintiff has not provided a chronology of events that even would allow the Court to conclude that the timing of Defendants' conduct was suspicious.
Still, Plaintiff has submitted affidavits that—if credited—constitute sufficient evidence for a jury to find that Plaintiff's First Amendment activity was at least a motivating factor in some of the alleged retaliatory conduct. In Plaintiff's affidavit—which Plaintiff relies upon to deny many of Defendants' factual assertions—Plaintiff avers that he did not engage in the misconduct alleged in the disciplinary reports. [88, Ex. D, at ¶¶ 8-11.] Plaintiff further avers that he overhead Defendants Kits and Dybas say that they were retaliating against Plaintiff because of the lawsuit he filed against Dr. Obaisi. Id. at ¶ 11.
Defendants argue that Plaintiff's declaration should be disregarded because—according to Defendants—Plaintiff's declaration stands in direct contradiction to his deposition testimony. To the extent that Plaintiff's declaration directly contradicts his deposition testimony, the Court agrees that it is appropriate to disregard contradictory portions of Plaintiff's declaration. See United States v. Funds in Amount of One Hundred Thousand One Hundred & Twenty Dollars ($100,120.00), 730 F.3d 711, 718 (7th Cir. 2013). For example, Plaintiff relies on his declaration to deny that "he admitted that he did not know whether the alleged retaliatory acts were a `planned situation.'" [88, Response to Statement of Facts, at ¶ 20.] But Plaintiff expressly testified to the contrary at his deposition, stating that he couldn't say whether the alleged retaliation "was a plan, a planned situation." [80, at ¶ 20.]
Plaintiff also relies on his declaration to assert that Defendants Kits and Dybas generated disciplinary reports against Plaintiff in retaliation to Plaintiff's 2012 lawsuit [88, Statement of Additional Facts, at ¶ 10], averring that he personally heard Defendants Kits and Dybas say that they were retaliating against Plaintiff because of his lawsuit. [88, Ex. D, at ¶ 11.] But when asked about any statements Defendants made about his lawsuit, Plaintiff did not mention these alleged statements. [80-1, Ex. 1 at 69:8-75:13.]
However, not all of the statements in Plaintiff's declaration contradict his own deposition testimony. Plaintiff denied Defendants assertion that they did not know about the 2012 lawsuit until they received notice of the above-captioned lawsuit on the ground that Plaintiff had heard Defendants discuss the lawsuit. [88, Response to Statement of Facts, at ¶ 40.] This is consistent with Plaintiff's deposition; Plaintiff testified that he heard Defendants discussing the lawsuit and other grievance at various times. [See, e.g., 80-1, Ex. 1 at 69:8-75:13.] Defendants point to Plaintiff's testimony that he believed that Defendants knew about the lawsuit because "that's all they do is talk about situations that's going on in the jailhouse." [80, Statement of Facts, at ¶ 21.] But Plaintiff did not testify that was his
The affidavit of Plaintiff's fellow inmate Seneca Smith also supports the existence of a genuine dispute regarding whether Plaintiff's lawsuit was at least a motivating factor in the retaliatory conduct allegedly committed by Defendants Dybas, Kits, and Utke. Seneca Smith avers that he personally spoke with Defendants Dybas, Kits, and Utke about the disciplinary reports against Plaintiff, and that Defendants Kits and Dybas told Mr. Smith that they each generated a false disciplinary report against Plaintiff because Plaintiff filed a false lawsuit against Dr. Obaisi.
Defendants also argue that Mr. Smith's testimony should be excluded because Mr. Smith was never disclosed as a witness pursuant to Federal Rule of Civil Procedure 26. [89, at 6.] However, it is unclear to which disclosure obligation Defendants are referring. Because Plaintiff is in the custody of a state and proceeding without an attorney, this proceeding is exempt from the initial disclosure requirements of Rule 26(a). Fed. R. Civ. P. 26(a)(B)(iv). Furthermore, because the Court has not set a different deadline for pretrial disclosures, Plaintiff has until 30 days before trial to submit his pretrial disclosures pursuant to Rule 26(a)(3). The affidavit of Mr. Smith therefore is admissible on summary judgment.
The upshot of the foregoing discussion is that Plaintiff has submitted sufficient evidence to establish a genuine dispute of material fact regarding whether the alleged retaliatory conduct was a motivating factor in the challenged conduct for Defendants Dybas, Kits, and Utke. Plaintiff has not, however, submitted sufficient evidence to establish a genuine dispute of material fact as to Defendant Tomaras on that issue. At Plaintiff's deposition, he testified that his "
As to the claims against the other Defendants, there are many reasons to question the credibility of the evidence offered by Plaintiff. For example, Plaintiff does not dispute that he never mentioned the 2012 lawsuit (or any retaliatory intent related thereto) in the offender grievances that he filed against Defendants. [88, Response to Statement of Facts, at ¶13, ¶17, ¶29.] Nor did he mention Defendants' alleged retaliatory intent in his original complaint. Id. at ¶ 32. Similarly, Plaintiff did not mention in his deposition that another inmate—Mr. Smith— heard Defendants Dybas, Kits, and Utke discuss Plaintiff's allegedly false disciplinary reports. Nevertheless, although Plaintiff's omissions might undermine the credibility of his evidence, the Court cannot make credibility determinations on summary judgment.
Defendants Kits and Utke argue that Plaintiff's First Amendment retaliation claim against them is time-barred and therefore should be dismissed. Plaintiff's claim is governed by Illinois' two-year statute of limitations for personal injury actions, but federal accrual rules apply to these claims. Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016). In the present matter, the only retaliatory act allegedly committed by Defendants Kits and Utke is their involvement in the February 28, 2014 Disciplinary Report, which was generated by Kits and witnessed by Utke.
Plaintiff does not dispute that his claims were not filed within the applicable two-year statute of limitations period. Plaintiff argues, however, that the statute of limitations should be tolled while he exhausted his administrative remedies against these Defendants. The Seventh Circuit agrees that federal courts must toll the statute of limitations period while an inmate exhausts his administrative grievances. Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). The tolling period starts when the prisoner files his grievance and ends when the administrative review process is over. Hatch v. Briley, 230 Fed. App'x 598, 599 (7th Cir. 2007).
Because Defendants did not set forth the date on which Plaintiff exhausted his administrative remedies in their motion for summary judgment, Plaintiff argues that summary judgment is inappropriate. [87, at 20.] However, it is Plaintiff's burden to show that he is entitled to equitable tolling. Stark v. Dynascan Corp., 902 F.2d 549, 551 (7th Cir. 1990) ("On a motion for summary judgment, the burden is on the plaintiff to present facts which, if true, would justify equitable tolling of the statute of limitations."); see also Douglas v. Potter, 268 F. App'x 468, 471 (7th Cir. 2008) (recognizing same). Plaintiff did not submit any supporting documents relating to his equitable tolling argument.
In their reply, Defendants attached the Illinois Department of Corrections' denial of Plaintiff's grievance, in which the Chief Administrative Officer at Stateville concurred on April 23, 2014. [89-1.] There is no evidence before the Court indicating that Plaintiff attempted to appeal the denial of his grievance to the Illinois Department of Corrections Administrative Review Board. Thus, based on the evidence before the Court, the statute of limitations on Plaintiff's claims against Defendants Kits and Utke began to run on April 23, 2014. Because Plaintiff's complaint was not signed until June 30, 2016 and was not filed until September 9, 2016, Plaintiff's claim against Defendants Kits and Utke is barred by the two-year statute of limitations.
Finally, Defendants argue that they are entitled to summary judgment on Plaintiff's punitive damages claim because Plaintiff has not shown that Defendant's conduct was motived by evil motive or intent or that their conduct involved a reckless or callous indifference to Plaintiff's federally protected rights. Under Section 1983, punitive damages are appropriate when a defendant acted wantonly and willfully or was motivated by ill-will or a desire to injure. Hendrickson v. Cooper, 589 F.3d 887, 894 (7th Cir. 2009) (citations and internal quotation marks omitted); Marshall v. Teske, 284 F.3d 765, 772 (7th Cir. 2002) ("A jury may award punitive damages in a § 1983 case if it finds that the defendants' conduct was motivated by evil intent or callous indifference to the plaintiff's federally protected rights.").
Defendants argue that Plaintiff cannot make such a showing here because the "undisputed evidentiary record reveals that Defendants issued disciplinary tickets against Plaintiff based upon their observation of that they believed to be a violation of Stateville rules" and that it "was their job and responsibility to generate an Offender Disciplinary Report in those instances." [79, at 11.] However, as discussed above, that fact is disputed. Accordingly, Defendants' request for summary judgment on Plaintiff's punitive damages claim is denied.
For the foregoing reasons, Defendants' motion for summary judgment [78] is granted in part and denied in part. Summary judgment is entered in favor of Defendants Utke, Kits, and Tomaras. Summary judgment is denied as to Defendant Dybas. The case is set for further status on September 6, 2018 at 10:00 a.m.
