Ames v. John Baldwin

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS R. AMES, )

)

Plaintiff, □

) No. 16 C 9213

v. )

} Chief Judge Rubén Castillo

JOEL SHAW et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Thomas Ames (“Plaintiff”), a former inmate! at the Stateville Correctional Center

(‘Stateville”), filed this action pursuant to 42 U.S.C. § 1983 alleging that Stateville correctional

officer Joel Shaw (“Shaw”) and correctional counselor Morgan Hudson (“Hudson”) retaliated

against him for engaging in conduct protected by the First Amendment of the U.S. Constitution.

(R. 54, Second Am. Compl. 34-38.) Pursuant to Federal Rule of Civil Procedure 56,

Defendants move for summary judgment in their favor on all of Plaintiff's claims. (R. 98, Mot.

for Summ. J. at 1.) For the reasons stated below, Defendants’ motion is granted.

RELEVANT FACTS

The following facts are undisputed unless otherwise stated. From December 1999 until

September 2016, Plaintiff was incarcerated at Stateville. (R. 135, Pl.’s Resp. to Defs.’ Facts { 1;

R. 98-3, PL.’s Dep. Tr. at 13.) Throughout 2015, Shaw was employed by the Illinois Department

of Corrections (“IDOC”) and was working as a correctional officer at Stateville. (R. 135, Pl.’s

Resp. to Defs.’ Facts 3; R. 98-5, Shaw Dep. Tr. at 12-15.) Hudson was also employed by IDOC

’ Plaintiff is still incarcerated, but he is currently being held at the Pinckneyville Correctional Center.

(R. 135, PL.’s Resp. to Defs.’ Facts ¥ 1.)

throughout 2015, as a counselor for Stateville inmates. (R. 135, Pl.’s Resp. to Defs.’ Facts 4 2;

R. 98-4, Hudson Dep. Tr. at 15-16.)

Beginning sometime in 2010, and until September 10, 2015, Plaintiff worked in

Stateville’s kitchens managing the day-to-day operations of the kitchens, unloading food from

supply trucks, and keeping inventory. (R. 135, Pl.’s Resp. to Defs.’ Facts § 6.) On September 2,

2015, Shaw and a second unidentified IDOC employee interviewed Plaintiff furtherance of an

investigation into contraband found in the prison. Ud. {| 7-8.) Shaw informed Plaintiff that

excess food trays from Stateville’s kitchens had been found in inmates’ housing units. Ud. {{ 7-

8, 13.) In response, Plaintiff said that he had no information about the food trays and that his job

assignment did not involve preparing food trays for inmates. /d. | 11.) The parties dispute

whether Shaw acted in a “threatening and coercive manner” or explicitly made threats to

terminate Plaintiff and other inmates during the interview. (/d. 9-10.) Shaw interviewed

another 19 inmate workers that day regarding the excess food trays. Ud. 4 12.)

Later in the day on September 2, 2015, Plaintiff prepared a written grievance detailing

Shaw’s “threatening and coercive tactics,” and he submitted the grievance “by placing it in the

bars of his cell.”? (ed. ff 17-18.) Plaintiff does not know who picked up the grievance but knows

that neither Shaw nor Hudsen picked up the grievance. (/d. 19.)

As a correctional counselor, Hudson’s job duties included reviewing and responding to

prisoner grievances. (R. 98-4, Hudson Dep. Tr. at 16-17.) Hudson had a practice of writing the

date on grievances after he received them, but there was no date written down on a “date

received” field in Plaintiff's September 2 grievance. (R. 135, PL.’s Resp. to Defs.’ Facts ff] 20-

21.) When Hudson responded to a grievance, he recorded his response in the complainant’s

? Defendants admit that Plaintiff “submitted the [September 2] grievance to Counselor Hudson for

review.” (R. 55, Answer § 13.)

“Cumulative Counseling Summary” (“CHAMP”) log.? (/d. 4] 22.) Hudson, however, did not

record a response to Plaintiff's September 2 grievance in Plaintiff's CHAMP log, (fd. § 23.)

Based on these facts, Hudson testified that he did not receive Plaintiff's September 2 grievance.

(id. § 27.) He also had no independent recollection of receiving it. (R. 98-4, Hudson Dep. Tr. at

64-67.)

Shaw never saw the grievance that Plaintiff submitted on September 2, 2015, nor did

Shaw ever speak with Hudson about that grievance.’ (R. 135, PI.’s Resp. to Defs.’ Facts [J 28-

29.) Shaw first learned about the grievance shortly before his deposition in this case. (R. 98-5,

Shaw Dep. Tr. at 65-66, 100-01 (“Q. When did you first learn about this grievance? A, Just now.

Well, 10 minutes ago.”).) On September 9, 2015, Shaw sent an email to Karen Rabideau

(“Rabideaw”), another Stateville officer, directing her to remove Plaintiff and five other inmates

from their positions in Stateville’s kitchens. (R. 135, P1.’s Resp. to Defs.’ Facts 30.) Shaw’s

email terminating Plaintiff stated that “the following inmate workers are to be terminated from

their job assignments effective immediately,” and Plaintiff was listed among the persons to be

Plaintiff submits that this fact is disputed in his Local Rule 56.1 response to Defendants’ statement of

facts, but he cites no evidence disputing that Hudson recorded his responses to grievances in

complainants’ CHAMP logs. (R. 135, Pl.’s Resp. to Defs.’ Facts 22.) Instead, Plaintiff states that Karen

Rabideau, “who at one time served in the same capacity as [Hudson,] . . . testified that responses to

grievances are not always included in the CHAMP log and that Stateville has no policies with such a

requirement.” ({d.) This testimony does not contradict or otherwise address the fact that Hudson had a

practice of recording his responses in CHAMP logs. (See id.)

‘ Plaintiff represents that this fact is disputed based on his reasoning that “there is other circumstantial

evidence in the record, including the Shaw Email, [Plaintiffs] job performance, and lack of stated reason

as to [Plaintiffs] termination that conflicts with Officer Shaw’s testimony.” (/d. ] 22.) This response,

however, is argumentative and evasive as it does not squarely address whether Shaw saw the grievance

that Plaintiff submitted on September 2, 2015; therefore, Defendants’ factual statement that Shaw never

saw the September 2 grievance is admitted as true. See Curtis y. Costco Wholesale Corp., 807 F.3d 215,

218-19 (7th Cir. 2015) (“The non-moving party’s failure to admit or deny facts as presented in the

moving party’s statement... render the facts... undisputed.”); Hampton v. Dewlow, No. 12 C 0528,

2013 WL 5288149, at *1 (N.D. Til. Sept. 18, 2013) “Here, some of [the plaintiff's] Rule 56.1(b)(3)(B)

responses are evasive and do not directly contradict Defendants’ Rule 56.1(a)(3) Statement of Facts, . . .

therefore, the Court admits these facts as true.”).

terminated. (R. 135-1 at 83, Sept. 9, 2015, Email.) The following day, Plaintiff was removed

from his job assignment in Stateville’s kitchens. (R. 135, PL.’s Resp. to Defs.’ Facts {J 31-32.)

He received a termination letter from Rabideau stating that “[y]our assignment termination was

based on staff recommendation[] and administrative reasons.” (R. 135-1 at 85, Termination

Letter.)

The parties dispute the basis for Plaintiff's termination, and no single person involved

with Plaintiffs termination can provide a more specific reason why Plaintiff was terminated

beyond the reasons set forth in Rabideau’s letter. (R. 143, Pl.’s Resp. to Add’] Facts #49, 63.)

There is also no document that offers more detail as to why Plaintiff was terminated. (/d. | 64.)

The parties also dispute whether Plaintiff was terminated at Shaw’s direction or at the Stateville

warden’s direction. (R. 135, Pl.’s Resp. to Defs.’ Facts 34; R. 143, PL.’s Resp. to Add’] Facts

50, 61.)

There is evidence, however, that several Stateville employees provided recommendations

as to whether Plaintiff should be terminated from his job assignment. (See R. 135-1 at 90, Vote

Sheet.) In a “Vote Sheet,” a form in which Stateville officers in charge of Plaintiff voted as to

whether Plaintiff should be terminated from his position, Rabideau recommended that Plaintiff

should not be terminated because he never received a disciplinary “ticket” related to his job

performance. (R. 143, PL.’s Resp. to Add’l Facts □ 51.) The parties dispute whether Plaintiff was

terminated before his supervisors completed the Vote Sheet. 7d. § 48.) One of his supervisors,

Quentin Tanner (“Tanner”), testified that Plaintiff was “a good worker,” “very good at his job,”

and had no problems related to his job performance. (Ud. { 58.) Tannet requested several times

that Plaintiff's job assignment be extended “because he was such an exceptional, trustworthy

employee.” (/d. 459.) Tanner believes that Plaintiff should not have been terminated. (id. 4 60.)

Plaintiff was earning $90 a month at his kitchen job assignment, and he earned $10 a month after

his termination on September 10, 2015. Ud. { 62.)

On September 16, 2015, Hudson received a grievance from Plaintiff dated September 10,

2015. (R. 135, PL.’s Resp. to Defs.’ Facts § 35.) The September 10 grievance accused Shaw of

terminating Plaintiff from his kitchen assignment in retaliation for Plaintiffs grievance that was

submitted on September 2, 2015, (/d.) With respect to the September 2 grievance, Hudson did

nothing to respond to or investigate it and instead relied on Rabideau to respond to the grievance.

(R. 143, Pl.’s Resp. to Add’1 Facts {| 54.)

Hudson never brought the September 10 grievance to Shaw’s attention, and the two

Defendants never discussed that grievance.” (R. 135, Pl.’s Resp. to Defs.’ Facts ¢ 40.) Hudson

never spoke with Shaw about Plaintiff, and Hudson never told Shaw to remove Plaintiff from his

job assignment.® (7d. □□ 43-44.) Hudson was not responsible for or otherwise involved with

removing inmates from their job assignments. (R. 135-1 at 21, Hudson Dep. Tr.) Plaintiff “has

no direct evidence, and only his own ‘gatherings[,’| for the conclusion that he was fired in

Plaintiff's response to this proffered fact is yet again evasive and deemed admitted. See Curtis, 807 F.3d

at 218-19; Hampton, 2013 WL 5288149, at *1. Plaintiff does not cite any evidence rebutting this fact and

instead argues that “[t]he circumstantial evidence points to collusion[.]” (R. 135, Pl.’s Resp. to Defs.’

Facts J 40.) The evidence Plaintiff cites does not relate to any “collusion” between Shaw and Hudson, and

Plaintiff does not explain how the cited evidence shows any such “collusion,” (id.). See Ativie v.

NorthShore Univ. Healthsystem, No. 15 C 10977, 2017 WL 714113, at *2 (N.D. Ill. Feb. 23, 2017)

(“[A]reumentative, vague, evasive, and ambiguous responses are not sufficient to render a fact disputed

under Local Rule 56.1.”).

6 Plaintiff does not address these proffered facts, and instead argues that “there is other circumstantial

evidence in the record, including the Shaw Email, [Plaintiff's] job performance, and lack of stated reason

as to [Plaintiffs] termination that conflicts with this testimony.” (R. 135, Pl.’s Resp. to Defs.’ Facts

43-44.) The precise factual question is whether Shaw and Hudson spoke to each other about Plaintiff,

and Plaintiff does not put forth any evidence related to this precise issue. (See id.) Plaintiff's response that

“other circumstantial evidence” rebuts this fact—without specifying how—is an argument that fails to

create any factual dispute under Local Rule 56.1. See Afivie, 2017 WL 714113, at *2.

retaliation for complaining about Officer Shaw’s conduct.” (R. 135, PI.’s Resp. to Defs.’ Facts

q 45.)

PROCEDURAL HISTORY

On September 23, 2016, Plaintiff filed his initial complaint. (R. 1, Compl.) With the help

of appointed counsel,’ (R. 8), Plaintiff later amended his complaint, (R. 12, Am. Compl), and on

July 26, 2017, the Court dismissed several defendants from the amended complaint for failure to

state a claim because those defendants were not alleged to have participated in the conduct that

harmed Plaintiff. (R. 40, Order at 6-10.)

On October 18, 2017, Plaintiff filed a seconded amended complaint, which is the

operative complaint. (R. 54, Second Am. Compl.) Plaintiffs seconded amended complaint

brings one count against Defendants for retaliation in violation of 42 U.S.C. § 1983. Ud. J 34-

38.) Plaintiff alleges that Defendants terminated his kitchen job assignment because of his

September 2 grievance against Shaw, which is an activity protected by the First Amendment. (/d.

34-38.) After several unsuccessful attempts to settle the case, the case advanced to the close of

discovery, and Defendants filed a motion for summary judgment. (See R. 76, Min. Entry; R. 95,

Min. Entry; R. 98, Mot. for Summ. J.)

Defendants argue that the Court should grant summary judgment because Plaintiff puts

forth no evidence of a causal connection between Plaintiff's September 2 grievance and his

termination from the kitchen job assignment. (R. 98-1, Mem. at 5-6.) Defendants also contend

that the case should not proceed to trial because Plaintiff presents no evidence that Defendants’

actions were likely to deter Plaintiff from further activity protected by the First Amendment

since he filed a second grievance shortly after his September 2 grievance and termination. (/d. at

7 The Court commends appointed counsel for their work representing Plaintiff and advancing the case.

6-10.) Finally, Defendants argue that Plaintiff offers no evidence showing that either Defendant

acted with a retaliatory motive, which is fatal to his claims. Ud. at 10-13.)

In response, Plaintiff maintains that there are factual disputes precluding summary

judgment. (R. 134, Resp. at 1.) First, Plaintiff argues that whether his termination from the

kitchen job assignment was likely to deter him from engaging in further protected activity must

be judged from the perspective of an “ordinary person” instead of Plaintiff's perspective;

therefore, the fact that he filed grievances after his termination does not lead to the conclusion

that Defendants’ actions were unlikely fo deter an “ordinary person” from engaging in protected

activity. Ud. at 7-8.) Next, Plaintiff contends that there is a factual dispute as to whether Shaw

knew of the September 2 grievance, and therefore, summary judgment is improper. (/d. at 8-10.)

More specifically, Plaintiff argues that his positive performance reviews and the suspicious

timing of his termination create a triable issue of fact as to whether his termination was causally

linked to his September 2 grievance. (/d.) According to Plaintiff, there are also a number of other

disputed factual issues that preclude summary judgment, which include: inconsistent testimony

as to the reason for Plaintiffs termination; Shaw’s failure to remember details regarding

Plaintiff's termination; and Shaw’s failure to provide evidence of a non-pretextual reason for

Plaintiff's termination. (Id. at 10-13.)

With respect to the retaliation claim against Hudson, Plaintiff argues that this claim is

different than the one against Shaw because it is based on Hudson’s failure to investigate

Plaintiff s arievances. (/d. at 13-15.) Plaintiff submits that there is a factual dispute related to

whether Hudson turned a “blind eye” to the claims set forth in Plaintiff’s grievances, and

therefore the Court cannot grant summary judgment in Hudson’s favor. (/d.)

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that “[tfhe 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). Summary judgment is

proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986) (citation omitted). A genuine dispute of material fact exists if “the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Daugherty v. Page,

906 F.3d 606, 610 (7th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 US. 242, 248

(1986)). In deciding whether a dispute exists, the Court must “consider all of the evidence in the

record in the light most favorable to the non-moving party[] and . . . draw all reasonable

inferences from that evidence in favor of the party opposing summary judgment.” Dunn v.

Menard, Inc., 880 F.3d 899, 905 (7th Cir. 2018) (citation omitted).

Under Rule 56, the movant has the initial burden of establishing that a trial is not

necessary. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014). “That

burden may be discharged by showing . . . that there is an absence of evidence to support the

nonmoving party’s case.” /d. (citation and internal quotation marks omitted). Ifthe movant

carries this burden, the nonmovant “must make a showing sufficient to establish the existence of .

an element essential to that party’s case.” Jd. (citation and internal quotation marks omitted). The

nonmovant “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to

interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury

could properly proceed to find a verdict in [his or her] favor.” fd. (citation and internal quotation

marks omitted). “Inferences supported only by speculation or conjecture will not suffice,” and

neither “will the mere scintilla of evidence.” Johnson v. Advocate Health & Hosps. Corp., 892

F.3d 887, 894 (7th Cir. 2018), In addition, not all factual disputes wiil preclude the entry of

summary judgment but only disputes of material fact—‘irrelevant or unnecessary factual

disputes do not preclude summary judgment.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir.

2012) (citation and internal quotation mark omitted). “[T]he substantive law will identify which

facts are material,” Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citation omitted).

In deciding a summary judgment motion, the Court cannot weigh conflicting evidence,

assess the credibility of the witnesses, or determine the ultimate truth of the matter, as these are

functions of the jury. Anderson, 477 U.S. at 255; Omnicare, Inc. v. UnitedHealth Grp., Inc., 629

F.3d 697, 704-05 (7th Cir. 2011). Instead, the Court’s sole function is “to determine whether

there is a genuine issue for trial.” Tolan v. Cotton, 572 U.S, 650, 657 (2014) (quoting Anderson,

477 US. at 249).

ANALYSIS

I. Shaw

To prevail on his First Amendment retaliation claim against Shaw, Plaintiff must show

that: “(1) he engaged in protected activity; (2) he suffered a deprivation likely to deter future

protected activity; and (3) his protected activity was a motivating factor” in Shaw’s decision to

retaliate. Daugherty, 906 F.3d at 610. “Under the first element, the filing of a prison grievance is

a constitutionally protected activity supporting a First Amendment retaliation claim|[.|” fd

Therefore, the first element is satisfied because there is no dispute that the protected activity at

issue is Plaintiff's prison grievance that he submitted on September 2, 2015. (R. 98-1, Mem. at 6;

R. 134, Resp. at 7 n.2.)

With respect to the second element, Shaw argues that Plaintiff presents no evidence that

his termination from the kitchen job assignment was likely to deter activity protected by the First

Amendment. (R. 98-1, Mem. at 6, 9-10.) In Shaw’s view, the fact that Plaintiff filed a second

grievance after being terminated from the kitchen job assignment is conclusive proof that

Plaintiff's termination was not likely to deter the filing of future grievances. Ud.)

To determine whether Shaw’s actions are likely to deter protected activity, however, the

Court applies “an objective test: whether the alleged conduct by the defendants would likely

deter a person of ordinary firmness from continuing to engage in protected activity.” Surita v.

Hyde, 665 F.3d 860, 878 (7th Cir. 2011). Thus, the fact that Plaintiff himself was undeterred

from filing another grievance is not relevant; rather, the controlling inquiry is whether a person

of “ordinary firmness” would be deterred from filing future grievances. Pefties v. Dybas, No. 16-

CV-7929, 2018 WL 3970148, at *5 (N.D. Ill. Aug. 20, 2018); see also McDonough v. City of

Chicago, 743 F. Supp. 2d 961, 973 (N.D. IL. 2010) (“The issue is not whether the plaintiff was

deterred, but rather whether a reasonable person would be deterred.””). Viewing the record as a

whole, the Court cannot say as a matter of law whether a termination from a favorable job

assignment is likely to deter a person of ordinary firmness from engaging in activity protected by

the First Amendment. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir, 2006) ([B]ecause

both plaintiffs were terminated, it is undisputed that each suffered a deprivation likely to deter

the exercise of free expression.”); Snedeker v. Girot, No. 16-CV-10907, 2017 WL 3704843, at

*5 (NLD. Ill. Aug. 28, 2017) (“This is not a high threshold—any deprivation under color of law

that is likely to deter the exercise of free speech qualifies.” (alteration, citation, and internal

quotation marks omitted)). This issue is best left for a jury to decide. See McDonough, 743 F.

Supp. 2d at 974 (“The question of whether this harassment would deter a reasonable person from

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speaking is a question to be decided by the finder-of-fact[.]”). The Court, therefore, denies

summary judgment on the grounds that Plaintiff's termination was unlikely to deter future

protected activity.

Plaintiff's claim against Shaw, however, cannot survive summary judgment on the third

element—whether Plaintiff's protected activity was a motivating factor in Shaw’s decision to

terminate Plaintiff. See Daugherty, 906 F.3d at 610. With respect to this element, if Plaintiff

establishes that his grievance was a motivating factor for his termination, the burden shifts to

Shaw to show that he “would have taken the same action even in the absence of the protected

conduct.” Yahnke v. Kane Cty., 823 F.3d 1066, 1070-71 (7th Cir. 2016). If Shaw satisfies his

burden, the burden then shifts back to Plaintiff to show that Shaw’s reason for Plaintiffs

termination was pretextual. See id. at 1071; Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir.

2012) (“Once a defendant produces evidence that the same decision would have been made in

the absence of the protected speech, the burden shifts back to the plaintiff to demonstrate that the

proffered reason was pretextual and that the real reason was retaliatory animus.”).

Plaintiff's retaliation claim against Shaw is premised on the grievance that Plaintiff

submitted on September 2, 2015, but Plaintiff puts forth no evidence showing that Shaw ever

received or knew about the September 2 grievance before he terminated Plaintiff. Rather,

Plaintiff fails to dispute Shaw’s testimony that he never saw the September 2 grievance and that

he first learned of it moments before his deposition in this case. (R. 135, PL’s Resp. to Defs.’

Facts § 28; R. 98-5, Shaw Dep. Tr. at 65-66, 100-01.) “In order to demonstrate that a defendant

was motivated to retaliate based on protected speech, the plaintiff must first produce evidence

that the defendant knew about the protected speech.” Consolino v. Towne, 872 F.3d 825, 830

(7th Cir. 2017) (emphasis added). Plaintiff does not produce any such evidence, and therefore

summary judgment is warranted. See Diadenko v. Folino, 741 F.3d 751, 756-57 (7th Cir. 2013)

(rejecting arguments to defeat summary judgment based on circumstantial evidence of suspicious

timing where the plaintiff provided no evidence that the defendant knew of the protected speech

that purportedly motivated the defendant to retaliate); Van Dyke v. Barnes, No, 13 C 5971, 2017

WL 1105390, at *7 (N.D. ILL. Mar. 24, 2017) (granting summary judgment despite circumstantial

evidence giving rise to suspicion of retaliation because there was no evidence that the defendant

knew of the plaintiff's conduct that was protected under the First Amendment), cf Petties, 2018

WL 3970148, at *7 (denying summary judgment because the plaintiff rebutted the defendants’

testimony that they were unaware of plaintiff's protected First Amendment activity with

testimony that he and another inmate overheard the defendants talking about the plaintiff’s

protected activity).

To prove tetaliation and Shaw’s knowledge of the September 2 grievance, Plaintiff cites

“other circumstantial evidence” raising the suspicion of retaliation that is unrelated to Shaw’s

knowledge of the September 2 grievance. (R. 135, Pl.’s Resp. to Defs.’ Facts | 28.) His own

speculation, however, cannot defeat summary judgment, and such circumstantial evidence would

require a jury to speculate as to Shaw’s knowledge of the September 2 grievance. See Consolino,

872 F.3d at 831 (“[S]peculation will not defeat a summary judgment motion[.]”); Wackett v. City

of Beaver Dam, 642 F.3d 578, 582 (7th Cir, 2011) (“This argument is circular: Wackett is

essentially maintaining that the defendants must have known about his protected speech because

they retaliated against him. ... For a viable case, Wackett must prove defendants’ knowledge of

the protected speech to establish retaliation.”).

Additionally, much of the “other circumstantial evidence” that Plaintiff relies on to defeat

summary judgment—his positive performance reviews, the date the Vote Sheet was completed,

12

and the lack of a stated reason for his termination—goes towards the argument that Defendants’

proffered reason for Plaintiff's termination was pretextual. (R. 134, Resp. at 10-11.) This “puts

the cart before the horse because it prematurely shifts the burden of proof to” Shaw to provide an

explanation for Plaintiff's termination before Plaintiff has established a prima facie case.

Anderson v. lacullo, 963 ¥. Supp. 2d 818, 834 (N.D. Il. 2013) (explaining that the defendant

“has no burden and does not need to show that there were legitimate , . . reasons for his decision

until [the plaintiff] first shows that his [protected activity] was a motivating factor in [the

defendant’s] decision seek [the plaintiff's] termination”); see also Yahnke, 823 F.3d at 1070-71,

Thayer, 705 F.3d at 252.

Plaintiff also argues that Shaw’s email terminating Plaintiff “conflicts” with Shaw’s

testimony that he did not know of the September 2 grievance, (R. 135, Pl.’s Resp. to Def.’ Facts

{| 28), but there is nothing in that email from which a reasonable juror could infer that Shaw was

aware of the September 2 grievance. The email simply states that “the following thmate workers

are to be terminated from their job assignments effective immediately,” and Plaintiff is listed

among the persons to be terminated. (R. 135-1 at 83, Sept. 9, 2015, Email.) Ultimately,

Defendant has presented evidence that Shaw never knew of or received the September 2

grievance before he terminated Plaintiff. (R. 135, Pl.’s Resp. to Defs.’ Facts ] 28-29; R. 98-5,

Shaw Dep. Tr. at 65-66, 100-01.) Plaintiff, therefore, has the burden to “go beyond the pleadings

(e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file) to

demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in

favor.” Sterk, 770 F.3d at 627; see also Genova y. Kellogg, No. 12 C 3105, 2015 WL

3930351, at *6 (N.D. Ib. Tune 25, 2015) (“[A]t the summary judgment phase . . . the nonmoving

party .. . must do more than question another party’s self-serving testimony, he must cite facts in

13

the record to support an assertion that a triable issue exists as to [the defendant’s] knowledge.”).

Plaintiff, however, fails to satisfy this burden and produces no evidence that would give rise to a

reasonable inference that Shaw knew of the September 2 grievance. Plaintiff's claim against

Shaw cannot avoid summary judgment as a result. See Diadenko, 741 F.3d at 756; Wackett, 642

F.3d at 582; Mcgreal v. Vill. of Orland Park, No. 12 C 5135, 2016 WL 1535153, at *8-9 (N.D.

Ill. Apr. 15, 2016) (granting summary judgment where there was no evidence the defendant

knew of the plaintiff’s protected activity even though the plaintiff presented circumstantial

evidence of suspicious timing to show retaliation), aff'd, 850 F.3d 308 (7th Cir. 2017).

The Court rejects Plaintiff's reliance on Brown & Williamson Tobacco Corp. v.

Jacobson, No. 82 C 1648, 1985 WL 6432 (N.D. Til. Mar. 14, 1985) and Prange v. Borders, Inc.,

No. 05 C 2194, 2006 WL 2632013 (N.D. ILL. Sept. 11, 2006), to argue that Shaw’s lack of

credibility and recollection of the events surrounding Plaintiffs termination create a triable issue

that defeats summary judgment. (See R. 134, Resp. at 11-12.) Brown is a libel case and has no

relevance to this action. Brown, 1985 WL 6432, at *1. In Brown, the court denied summary

judgment because the defendant’s credibility was placed into question on the issue of whether

the defendant acted with malice—an issue particular to libel cases implicating one’s subjective

mental state. Brown, 1985 WL 6432, at *1. Plaintiff's shortcomings are unrelated to Shaw’s

subjective beliefs; rather, the problem with Plaintiff's case lies with the objective and unrebutted

fact that Shaw did not know of the September 2 grievance before he terminated Plaintiff.

(R. 135, Pl.’s Resp. to Defs.’ Facts FJ 18-19, 28.)

Prange is likewise unhelpful because that case involved a defendant who knew of the

protected activity at issue. In Prange—a case brought under the Fair Labor Standards Act, 29

ULS.C. § 206, and not Section 1983—the court ruled that the plaintiff presented enough

14

evidence, “though barely,” to survive summary judgment because, among other reasons, “the

defendant [had] not established that [the plaintiff's supervisor] did not know about plaintiffs

lawsuit when establishing the new .. . “directive’” that resulted in an adverse employment action

affecting the plaintiff. Prange, 2006 WL 2632013, at *6-7. Plaintiff, on the other hand, fails to

come forward with evidence showing that Shaw knew of the September 2 grievance before

Plaintiff's termination, and it is undisputed that Shaw did not receive and was unaware of the

September 2 grievance before Plaintiff’s termination. (R. 135, Pl.’s Resp. to Defs.’ Facts □□ 18-

19, 28; R. 98-5, Shaw Dep. Tr. at 65-66, 100-01.) Summary judgment, therefore, 1s proper on

Plaintiff's First Amendment retaliation claim, Wackett, 642 F.3d at 582, and the circumstantial

evidence Plaintiff cites cannot save his claim without any evidence that Shaw knew of or

received the September 2 grievance, see Diadenko, 741 F.3d at 756; Van Dyke, 2017 WL

1105390, at *7.

As with Prange, the other cases that Plaintiff cites in which summary judgment on a

retaliation claim was denied or found to be improper are cases where the defendant either knew

of the protected activity or there was a factual dispute as to whether the defendant knew of the

protected activity. (See R. 134, Resp. at 9-11 (citing Loudermilk v. Best Pallet Co., LLC, 636

F.3d 312, 314 (7th Cir. 2011) (case where there was evidence that the plaintiff's supervisor knew

about protected activity); Magyar v. Saint Joseph Reg] Med. Ctr., 544 F.3d 766, 772-73 (7th

Cir. 2008) (same); Mays v. Springborn, 575 F.3d 643, 645-46 & 650 (7th Cir. 2009) (case

involving retaliation by prison guards against plaintiff who showed them a memorandum about

proper searches and there was a factual dispute as to whether the plaintiff showed the prison

guards the memorandum that led to the prison guards’ retaliation).) Plaintiff's claim against

Shaw simply cannot survive summary judgment without evidence that Shaw knew of Plaintiff's

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protected activity. See, e.g., Gross v. Town of Cicero, 619 F.3d 697, 708 (7th Cir. 2010)

(“Because Gross failed to produce any evidence that the defendants were aware of his speech,

Gross cannot demonstrate a triable issue of fact that his discharge was at all motivated by his

[protected speech].” (emphasis in original)); Schmoeller v. Vill. of Island Lake, 324 F. Supp. 3d

983, 990 (N.D. UL. 2018) (Without any evidence of knowledge of Schmoeller’s political

affiliation, a fury could not conclude that the commissioners were politically motivated to deny

him a promotion.”). The Court, therefore, grants Defendants’ motion for summary judgment as

to the claim against Shaw.

I. Hudson

Turning to the First Amendment retaliation claim against Hudson and applying the same

principles above, the Court finds that Plaintiff survives summary judgment on the first two

elements of his First Amendment retaliation claim—whether his September 2, 2015, grievance is

a protected activity and whether his termination from the kitchen job assignment is likely to deter

future protected activity. See Daugherty, 906 F.3d at 610. Plaintiff, however, does not present

any evidence showing that Hudson was personally involved in the decision to terminate Plaintiff.

(R. 135, PL’s Resp. to Defs.’ Facts 43-44; R. 135-1 at 21, Hudson Dep. Tr.) Nor does Plaintiff

rebut Defendants’ assertion that Hudson lacked any personal involvement with the decision to

terminate Plaintiff. (See R. 98-1, Mem. at 6; R. 134, Resp. at 13-15.) This is fatal to any First

Amendment retaliation claim against Hudson based on Plaintiffs termination from the kitchen

job assignment. See Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (“[{]ndividual

liability under § 1983 requites personal involvement in the alleged constitutional deprivation.”

(emphasis added, citation, and internal quotation marks omitted)); LaBoy v. Clements, No. 15

CV 10771, 2017 WL 2936705, at *14 (N.D. Ill. July 10, 2017) (granting sammary judgment

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because the plaintiff “provided no evidence establishing any Defendant’s direct, personal

involvement”).

Plaintiff argues, however, that his claim against Hudson is not related to Plaintiff's

termination but instead related to “Hudson’s investigation (or lack thereof)” of the grievances

that Plaintiff submitted following his termination. (R. 134, Resp. at 14.) This is not the theory of

liability described in the operative complaint, which alleges that “Hudson took an adverse action

against [Plaintiff] when [he] fired him from his job assignment in the kitchen.” (R. 54, Second

Am. Compl. § 37.) While Plaintiff alleges that Hudson failed to adequately investigate his

erievances, (id. {J 21-22), there is nothing in the operative complaint putting Hudson on notice

that the First Amendment retaliation claim against him is based on a failure to investigate as

opposed to Plaintiff's termination from the kitchen job assignment, (id. {J 34-38). Plaintiff

cannot amend his theory of the case by way of his summary judgment briefs; accordingly, this

new theory of the case cannot defeat summary judgment. See Auston vy. Schubnell, 116 F.3d 251,

255 (7th Cir. 1997) (“He did not include the promissory estoppel claim in his complaint or his

amended complaint, adding it only at the summary judgment stage. This is too late in the day to

be adding new claims.”).

For the sake of completeness, however, Plaintiff nonetheless cannot survive summary

judgment based on his theory that Hudson deprived him of his constitutional rights by failing to

adequately investigate prison grievances. Relying on Verser v. Efyea, 113 F. Supp. 2d 1211

(N.D. HL 2000), Plaintiff argues that Hudson can be held liable if Plaintiff's termination occurred

at Hudson’s direction or with Hudson’s knowledge or consent such that Hudson knew about the

conduct and “facilitate|d] it, approve[d] it, condone[d] it, or turn[ed] a blind eye.” Verser, 113 F.

Supp. 2d at 1215. Plaintiff's theory is that Hudson “participated in” a deprivation of Plaintiff's

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First Amendment rights because he ignored Plaintiff's grievances and turned a “blind eye to

Shaw’s unconstitutional actions” by failing to investigate the claims in those grievances. (R. 134,

Resp. at 14-15.)

As this Court explained in its order on the motion to dismiss in this case, “[p}rison

grievance procedures are not mandated by the First Amendment”; therefore, the “mishandling of

... grievances by persons who otherwise did not cause or participate in the underlying conduct”

cannot give rise to a viable claim. Owens y. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); see also

Owens v. Godinez, 860 F.3d 434, 438 (7th Cir. 2017) (rejecting the plaintiff's theory of liability

under 42 U.S.C. § 1983 based on “grievance officers and counselors he accused of ignoring his

administrative complaints and appeals”). Accordingly, the Court finds that Plaintiff cannot

survive summary judgment on his claim that Hudson failed to adequately investigate or respond

to Plaintiff's grievances where Hudson lacked any personal involvement in Plaintiff’s

termination. See Hinsley, 635 P.3d at 953; Godinez, 860 F.3d at 438.

Plaintiff’s reliance on Verser is misplaced for several reasons. First, to the extent that

Plaintiff relies on Verser for the principle that Hudson can be held liable for Shaw’s conduct if

Hudson knew of Shaw’s conduct and directed Shaw to terminate Plaintiff,’ Verser, 113 F. Supp.

2d at 1216, Verser does not help Plaintiff because he presents no evidence showing that Hudson

directed Plaintiff's termination or was otherwise involved in Plaintiffs termination. (R. 135,

Pl.’s Resp. to Defs.’ Facts ff 43-44; R. 135-1 at 21, Hudson Dep. Tr.)

Additionally, Verser is not analogous because there the plaintiff claimed that the

defendants deprived him of his Eighth Amendment right against cruel and unusual punishment

® Such a claim, of course, would also require Plaintiff to prove that Shaw deprived him of his

constitutional rights. See Verser v. Elyea, 113 F, Supp. 2d 1211, 1216 (N.D. IL 2000). The Court has

determined above that he has failed to so.

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by acting with deliberate indifference to his serious medical needs. See Verser, 113 F. Supp. 2d

at 1215. The court explained that in such cases, a prison official can be held liable if a hazardous

prison condition or medical need is brought to the prison official’s attention by way of a prison

prievance and not remedied. See id at 1215-16. Plaintiff, on the other hand, brings no Eighth

Amendment claim, or a claim that his prison grievances alerted Hudson to a constitutional

deprivation that Hudson could have prevented or remedied.

Thus, while it is true that “a prison official can be liable under 42 U.S.C. § 1983 for

failing to respond to violations of a prisoner’s constitutional rights that come to his or her

attention via the grievance procedure,” this “is a consequence of the official’s duty under federal

law to prevent and remedy constitutional violations, not a duty to respond to grievances.”

Blankenship v. Kittle, No. 03 C 3573, 2003 WL 22048712, at *3 (N.D. IU. Aug. 6, 2003) (citing

Verser and explaining that “[t]here is no constitutional right to an institutional grievance

procedure”). There is no evidence that Hudson played a role in Plaintiff’s termination. (See

R. 135-1 at 21, Hudson Dep. Tr.) There is also no evidence that Hudson knew that Shaw was

going to terminate Plaintiff or that Hudson could have prevented Shaw’s termination. Rather,

Plaintiffs argument relates entirely to Hudson’s failure to adequately investigate a prison

grievance, (R. 134, Resp. at 14-15), which is not a cognizable claim under Section 1983. See

Godinez, 860 F.3d at 438; Hinsley, 635 F.3d at 953. The Court, therefore, grants summary

judgment in Hudson’s favor.

CONCLUSION

For the foregoing reasons Defendants’ motion for summary judgment (R. 98) is

GRANTED. Plaintiff has simply not supplied enough material issues of fact to allow a jury to

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return a valid judgment in his favor against either Defendant. Judgment is ENTERED in favor of

Defendants and against Plaintiff on afl counts in his second amended complaint.

The Court expressly commends Plaintiffs counsel for their exemplary lawyering in this

case. Unfortunately, the undisputed facts in this case do not merit proceeding to trial. All pending

motions in limine (R. 108, R. 109, R. 110, R. 111, R. 112, R. 113, R. 114, R, 115, R. 116,

R. 117, R. 118, R. 119) are therefore DENIED as moot.

ENTERED: KEE Kaa

Chief Judge Rubén Castillo

United States District Court

Dated: December 7, 2018

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