The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT MINERLY, )
# K63470, )
)
)
Plaintiff, )
)
vs. ) Case No. 17-cv-520-SMY
)
CECIL HOLT, )
KAREN KIRSCHKE, )
DENISE MINOR, AND )
JASON GARNETT, )
)
Defendants. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Robert Minerly, an inmate of the Illinois Department of Corrections (“IDOC”)
currently incarcerated at Robinson Correctional Center (“Robinson”), filed this action pursuant to
42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. He seeks relief for alleged
retaliatory conduct while he was housed at Big Muddy River Correctional Center (“Big Muddy”).
Defendants have filed a motion seeking summary judgment. (Doc. 83).
This matter is now before the Court on the Report and Recommendation (“Report”) of
United States Magistrate Judge Reona J. Daly (Doc. 94), recommending that Defendants’ Motion
for Summary Judgment be granted in part and denied in part. Defendants Holt and Kirschke filed
a timely Objection (Doc 96). For the following reasons, Judge Daly’s Report and
Recommendation is ADOPTED in part and REJECTED in part.
Background
Plaintiff Robert Minerly was housed at Big Muddy between 2011 and 2017.1 On July 8,
2016, he signed and submitted for scanning a Complaint (lawsuit) against several staff members
at Big Muddy, including Nick Nalley. (See Minerly v. Nalley, et al., 16-cv-782-MJR-SCW)
(“Nalley Case”). Two days later, Plaintiff was removed from the Voluntary Sex Offender Program
(“VSOP”) by Defendant Kirschke who told Plaintiff she had been instructed to remove him from
the program and that if “a certain person [got] wind that he was still in the program she would have
to ‘justify it’”--- something she was unwilling to do. Kirschke never identified who the “certain
person” was, but under the circumstances, Plaintiff assumed it was Nalley. As a result of being
removed from VSOP, Plaintiff was rehoused in general population.
During a hearing in this case, Defendant Dr. Holt testified that Plaintiff was removed from
VSOP because he “had achieved maximum treatment benefit.” Kirschke testified in a deposition
in the 2016 lawsuit that Plaintiff was removed because he was one of the older members of the
program, having been there approximately five years.
After being removed from VSOP, Plaintiff continued to attend the Aftercare program, a
once-a-week treatment group for those “who have gone as far as they can go in the VSOP
Program” which “allows them to continue working on their sex offender issues[.]” On August 19,
2016, immediately after an Aftercare session, Plaintiff received declarations from other inmates
who witnessed the events at issue in the 2016 lawsuit. He was then removed from the Aftercare
program. Dr. Holt testified that Plaintiff was removed from the Aftercare program because he was
conducting legal activities during group times.
Defendants Holt, Kirschke, Minor and Garnett filed for summary judgment (Doc. 83) and
1 A full account of Plaintiff’s subsequent medical care is detailed in the “Findings of Fact” section of Judge Daly’s
Report (Doc. 94, pp. 1-4). Because no objection has been made to that portion of the Report, the Court adopts those
findings of fact and will only summarize the relevant facts herein.
Plaintiff filed a Response (91). Judge Daly issued a Report and Recommendation (Doc. 94),
recommending that summary judgment be granted for Minor and Garnett but denied for Holt and
Kirschke. No objection has been filed challenging the recommended dismissal of Minor and
Garnett. However, Dr. Holt and Kirschke filed a timely objection (Doc. 95), to which Plaintiff did
not respond.
Discussion
Because Dr. Holt and Kirschke filed a timely objection to the Report, this Court must
undertake a de novo review of Judge Daly’s findings and recommendations. 28 U.S.C. §
636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); see also Govas v. Chalmers, 965
F.2d 298, 301 (7th Cir. 1992). De novo review requires the district judge to “give fresh
consideration to those issues to which specific objections have been made” and make a decision
“based on an independent review of the evidence and arguments without giving any presumptive
weight to the magistrate judge’s conclusion.” Mendez v. Republic Bank, 725 F.3d 651, 661 (7th
Cir. 2013). The Court “may accept, reject or modify the magistrate judge’s recommended
decision.” Id. Consistent with these standards, the Court has conducted a de no review of those
portions of the Report subject to objection.
Dr. Holt and Kirschke raise three challenges to Judge Daly’s legal conclusions. First, they
challenge the finding that there is a genuine issue of material fact as to whether the VSOP removal
was retaliatory, based on the chronology of the case. Second, they take issue with Judge Daly’s
conclusion that they did not furnish an adequate non-retaliatory motive for Plaintiff’s removal
from Aftercare. Finally, they take issue with the denial of qualified immunity.
Summary 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). To prevail
on a First Amendment retaliation claim, a plaintiff 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). At the summary judgment stage, the burden of proving causation rotates
between the parties. Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012). Initially, in order
to establish a prima facie case, the plaintiff must produce evidence that his speech was at least a
“motivating” factor in the defendant’s decision to take retaliatory action. Id. Plaintiff may meet
his burden by presenting either direct or circumstantial evidence. In other words, evidence from
which a trier of fact may infer that retaliation occurred, including suspicious timing or ambiguous
oral or written statements. Kidwell, 679 F.3d at 965. (quotations and citations omitted). The
burden then shifts to the defendant to rebut the causal inference raised by the plaintiff’s evidence
and to show that the harm would have occurred anyway, despite the protected activity. Id. If the
defendant fails to counter the plaintiff’s evidence, then the defendant’s retaliatory actions are
considered a “necessary condition” of the plaintiff’s harm, and the plaintiff is deemed to have
established the “but-for” causation needed to succeed on his claim. Id.
VSOP
Dr. Holt and Kirschke contend that Plaintiff has not made a submissible case of retaliation
with respect to his VSOP removal because he has not established causation. In particular, they
argue the chronology of events suggests no connection between Plaintiff’s removal and his filing
of the 2016 Nalley lawsuit. They first address the “suspicious timing” aspect, noting that Plaintiff
submitted the Complaint in the Nalley lawsuit on July 8, 2016, but it was not entered into the
Court’s CM/ECF system until July 13th – 3 days after he was terminated from the VSOP. They
also point out that requests for waivers of service (the first formal notification to the defendants in
that case) were not served until August 12, 2016. They suggest these facts cut against the claim
that the VSOP termination was in retaliation for filing the lawsuit. While this chronology does
make it less likely that the termination was a reaction to the suit, it does not foreclose the
possibility. While the procedures of the Court and the rules regarding service are intended to
provide a defendant with notice of the claims against them, they are not the only means by which
a defendant may learn that a lawsuit has been filed.
That said, Plaintiff has failed to produce sufficient evidence that his filing of the Nalley
lawsuit was a motivating factor in his removal from VSOP. “A plaintiff must establish a causal
connection between the government defendant's retaliatory animus and the plaintiff's subsequent
injury.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (citing Hartman v. Moore, 547 U.S. 250,
259 (2006)). In cases relying on suspicious timing, the plaintiff must show that the adverse action
followed “close on the heels” of the protected activity, and that the person who took the adverse
action knew of the protected conduct. Kidwell, 679 F.3d at 966.
Plaintiff’s termination from the VSOP satisfies the “close on the heels” requirement. But,
even accepting Plaintiff’s assumption that his removal was essentially ordered by Nalley, he
presents no evidence to suggest that Nalley knew the lawsuit had been filed at that time. Kirschke’s
“vague statement” implicates Nalley in the decision to remove him from the VSOP but does
nothing to tie Nalley’s action to the protected activity. While Plaintiff is entitled to all reasonable
inferences in his favor, “inferences that are supported by only speculation or conjecture will not
defeat a summary judgment motion.” Herzog v. Graphic Packaging Int'l, Inc., 742 F.3d 802, 806
(7th Cir. 2014). In order to find in Plaintiff’s favor, a jury would have to speculate that Nalley
found out Plaintiff had filed suit against him prior to the appearance of the case on the Court’s
system, and that Nalley’s desire to have him removed from the VSOP was motivated by the filing
of the lawsuit, rather than a non-protected activity. As such, summary judgment is appropriate on
the issue of Plaintiff’s removal from the VSOP and the Court rejects this portion of Judge Daly’s
recommendation.
Aftercare Program
Kirschke and Dr. Holt concede that Plaintiff was removed from the Aftercare program for
discussing declarations for the Nalley lawsuit with other prisoners. They argue however that the
removal was not retaliatory or intended to chill First Amendment rights but was instead motivated
by the fact that he was discussing the lawsuit during time that was supposed to be devoted to
treatment. Judge Daly concluded that because Dr. Holt and Kirschke did not identify any particular
rule or policy justifying that action, and because Plaintiff contends that treatment time was
intended to allow discussion of various subjects, they had not rebutted Plaintiff’s prima facie case.
This Court reaches the same conclusion.
Defendants are correct that there is no requirement that a defendant point to a specific rule
or policy as the reason for their actions, just that he “show that the same decision would have been
made in the absence of the protected speech.” Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir.
2011). However, at the summary judgment stage, a plaintiff may rebut such a justification with
“evidence upon which a rational finder of fact could infer that the defendant's proffered reason is
a lie.” Vukadinovich v. Board of School Trustees, 278 F.3d 693, 699 (7th Cir. 2002). Here,
Plaintiff contends that Aftercare discussions were not limited to only directly therapeutic
discussions but were open to any number of topics. A rational finder of fact could reasonably
conclude that if Aftercare was a free discussion zone, Dr. Holt and Kirschke’s stated reason for
Plaintiff’s removal from the program is pretextual. As such, summary judgment is inappropriate
on this ground.
Qualified Immunity
Dr. Holt and Kirschke also object to Judge Daly’s conclusion that they were not entitled to
qualified immunity. Qualified immunity is an affirmative defense, but once it is raised the burden
shifts to Plaintiff to defeat it. Sparing v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001).
To overcome qualified immunity, the facts viewed in the light most favorable to Plaintiff must
“show that the defendant[s] violated a constitutional right” and that “the right was clearly
established at [that] time.” Estate of Clark v. Walker, 865 F.3d 544, 550 (7th Cir. 2017).
The Report and Recommendation concludes that removing Plaintiff from the VSOP and
Aftercare program for “filing and pursuing a civil rights lawsuit” was a violation of a clearly
established right. The Court agrees that the filing of the Nalley lawsuit was clearly established as
protected activity giving rise to a First Amendment right. The Court finds that the characterization
of Plaintiff’s actions in obtaining declarations as “pursuing a civil rights lawsuit” is too broad for
a meaningful qualified immunity analysis. “[T]he clearly established right must be defined with
specificity.” City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019). See also Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015). While a plaintiff is not required to cite “a case directly on point
for a right to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quotations
omitted).
Here, Plaintiff’s action was obtaining written declarations from other inmates in support of
his lawsuit. The question of whether he was doing so during Aftercare meetings or simply
collected them after one of the meetings is disputed, and so Plaintiff will be afforded the benefit
of the inference that it was the latter. Although the Court cannot find any cases directly holding
that soliciting and receiving such affidavits or declarations is “protected activity” for First
Amendment retaliation purposes, making such a declaration clearly is. See Bridges v. Gilbert, 557
F.3d 541, 551 (7th Cir. 2009). To hold that soliciting and receiving such affidavits is not protected
(when conducted in a manner consistent with a plaintiff’s status as a prisoner) is simply illogical.
It would make the right to petition for redress pointless, because prisoners would be allowed to
file suit but could be punished for any attempt to gather admissible evidence to support such a
claim. The Court sees no reasonable debate on this point. Therefore, qualified immunity is not
available to Dr. Holt and Kirschke on the record as it stands.2
Disposition
For the foregoing reasons, the Court ADOPTS IN PART Judge Daly’s Report and
Recommendation. (Doc. 94). Defendants’ Motion for Summary Judgment (Doc. 83) is
GRANTED in part; Summary judgment is GRANTED in favor of Defendants Cecil Holt and
Karen Kirschke on Count 1 and DENIED on Count 2. Defendants Jason Garnett and Denise
Minor are DISMISSED with prejudice, and the Clerk of Court is DIRECTED to enter judgment
in favor of Defendants Garnett and Minor at the close of this case.
IT IS SO ORDERED.
DATED: March 30, 2020
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
2 This is not to say a prisoner has free rein to take any steps they deem appropriate to gather evidence for their suit.
Even the exercise of otherwise-protected First Amendment rights is subject to limitations for legitimate penological
interests—a prisoner must exercise those rights “in a manner consistent with his status as a prisoner.” Watkins v.
Kasper, 599 F.3d 791, 797 (7th Cir. 2010). However, the record as it must be viewed on summary judgment does not
reflect that Plaintiff’s requesting or obtaining the declarations was inconsistent with prison discipline.