Oliver v. Butler

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL OLIVER,

Plaintiff,

v. Case No. 17-CV-00206-NJR

MAJOR LYERLA and

SERGEANT SCOTT,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion for Summary Judgment filed by Defendants

Major Lyerla and Sergeant Scott (Doc. 83). For the reasons set forth below, the Court

grants the motion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Michael Oliver brings this pro se civil rights action pursuant to 42 U.S.C.

§ 1983, based on events that occurred while he was incarcerated at Menard Correctional

Center. The claims at issue in this case were severed from another suit Oliver filed in this

District (Doc. 1). The Court conducted a preliminary review of four remaining Counts in

the Complaint pursuant to 28 U.S.C. § 1915A. Following that review, the only claim that

remains in this case is Oliver’s First Amendment retaliation claim against Defendants

Lyerla and Scott for transferring him from Menard’s “hill,” the Medium Security Unit of

Menard, to the “pit,” the East House in the Maximum Security Area of Menard, after

Oliver filed grievances to complain about the conditions at Menard and Defendants’

conduct (Doc. 7 at 7–8).

Following the preliminary review, Oliver filed his First Amended Complaint

(Doc. 25). Oliver alleged Sergeant Scott along with additional officers came to his cell and

aggressively questioned him about his use of the title “King” on a visitor list he sent for

the warden’s approval (Id. at 5). According to Oliver, Scott tore up the visitors list and

threw it on the floor (Id.; Doc. 84–1 at 33). After this encounter, Oliver requested grievance

forms from another official, who later returned with Scott, who then threatened Oliver,

saying, “I double dog dare you to file those grievances” (Doc. 25 at 5). Despite this, Oliver

filed a grievance for Scott’s conduct (Id. at 8).

On July 21, 2015, Oliver was taken to Major Lyerla’s office to discuss the grievance,

and Oliver alleges Lyerla did not believe the events had taken place because he had

known Scott for over 20 years (Doc. 25 at 5). During this meeting, Lyerla threatened to

move him to the pit if he did not stop his use of the title King, and Oliver was transferred

the next day, July, 22, 2015 (Id.; Doc. 84–1 at 9; Doc. 84-2).

Defendants filed the instant Motion for Summary Judgment and accompanying

Memorandum in Support of the Motion on October 3, 2019, arguing they are entitled to

summary judgment because Oliver’s case is based upon pure speculation, Defendants

did not violate his constitutional rights, and Defendants are entitled to qualified

immunity (Docs. 83, 84). Attached to the Memorandum in Support, Defendants included

Oliver’s placement history (Doc. 84-2) and an affidavit by Terri Wingerter, the Placement

Office Supervisor at Menard Correctional Center (Doc. 84-4). According to the affidavit,

inmates can be moved from cell to cell for a variety of reasons, and Oliver’s placement

history shows that his transfer that occurred on July 22, 2015 was a routine transfer (Id.).

Moreover, Oliver was eligible for placement in either the Medium Security Unit or the

Maximum Security Unit.

Oliver filed a Response in Opposition to Defendants’ Motion for Summary

Judgment on November 5, 2019, arguing that he lost several liberty interests due to the

transfer, Defendants are not entitled to qualified immunity, there remain disputable facts,

and that he cannot properly respond to the motion because of deprivations (Doc. 86).

Defendants filed their Reply on November 19, 2019, arguing that Oliver does nothing

more than conclusively argue he was transferred for his use of the title King despite there

being documentation to show that it was a routine transfer (Doc. 89).

LEGAL STANDARD

The Seventh Circuit has stated that summary judgment is “the put up or shut up

moment in a lawsuit, when a party must show what evidence it has that would convince

a trier of fact to accept its version of the events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th

Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).

Summary judgment is proper only if the moving party can demonstrate there is no

genuine issue 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); Ruffin-

Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any

doubt as to the existence of a genuine issue of fact must be resolved against the moving

party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha Cnty., 391

F.3d 837, 841 (7th Cir. 2004).

While the burden is on the moving party to show entitlement to summary

judgment, Federal Rule of Civil Procedure 56(c)-(e), requires the non-moving party to

properly address another party’s assertion of fact. A party asserting that a fact is

genuinely disputed must support that assertion by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits

or declarations, stipulations (including those made for purposes of

the motion only), admissions, interrogatory answers, or other

materials; or

(B) showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.

FED. R. CIV. P. 56(c)(1)(A)-(B). If a party fails to address any such assertion, the Court

may consider the facts undisputed and can grant summary judgment if the motion and

supporting materials—including the facts considered undisputed—show the movant is

so entitled. FED. R. CIV. P. 56(e)(2)-(3).

DISCUSSION

Prison officials may not retaliate against an inmate for exercising his First

Amendment rights, even if their actions would not independently violate the

Constitution. See Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000); Howland v.

Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) (“an act in retaliation for the exercise of a

constitutionally protected right is actionable under Section 1983 even if the act, when

taken for different reasons, would have been proper”); see also Bridges v. Gilbert, 557 F.3d

541, 552 (7th Cir. 2009).

To prevail on a First Amendment retaliation claim, a plaintiff must ultimately

show that he (1) engaged in activity protected by the First Amendment; (2) 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 defendants’ decision

to take the retaliatory action. Bridges, 557 F.3d at 546 (quoting Massey v. Johnson, 457 F.3d

711, 716 (7th Cir. 2006)).

The evidence before the Court is not sufficient for Oliver to make his prima facie

case for retaliation. While it is undisputed that Oliver filed grievances during his

incarceration at Menard, and the filing of the same is a recognized, protected First

Amendment activity, see DeWalt v. Carter, 224 F.3d 607, 618 (2000), the evidence, when

viewed in the light most favorable to Oliver, does not demonstrate that Oliver suffered a

deprivation that would deter First Amendment activity in the future.

The standard for a retaliation claim is whether the retaliatory act would “deter a

person of ordinary firmness” from exercising his First Amendment rights. Bart v. Telford,

677 F.2d 622, 625 (7th Cir. 1982); see also Bridges, 557 F.3d at 555. Not every instance of

retaliatory conduct amounts to a constitutional violation. As the Seventh Circuit noted in

Bart, “[i]t would trivialize the First Amendment to hold that harassment for exercising

the right of free speech was always actionable no matter how unlikely to deter a person

of ordinary firmness from that exercise.” Id. Indeed, threats of violence by prison guards

have been held not to amount to retaliation. See Antoine v. Uchtman, 275 F. App’x 539, 541

(7th Cir. 2008); see also Boclair v. Beardan-Monroe, No. 10-cv-978-SWC, 2012 WL 3835874

(S.D. Ill. Sept. 4, 2012).

The extent of the Oliver’s allegations of retaliatory conduct amount to a statement

by Scott and the transfer of Oliver from Menard’s Medium Security Unit to the Maximum

Security Unit. Even if Scott’s statement is taken as a threat of violence, that statement

alone does not amount to retaliation. Moreover, the transfer decision is not sufficiently

adverse to amount to retaliation because the transfer does not amount to a serious change

in circumstance, particularly when compared to other cases in which the Seventh Circuit

has found a transfer decision could amount to retaliation. See Babcock v. White, 102 F.3d

267, 268–70 (7th Cir. 1996) (finding a retaliatory decision to delay transferring the plaintiff

out of a life threatening situation could amount to a First Amendment right violation);

Higgason v. Farley, 83 F.3d 807, 808–09 (7th Cir. 1996) (noting the plaintiff was transferred

into a segregated housing unit which placed significantly more restrictions on his

freedom, including being left in his cell for 23 hours a day); Buise v. Hudkins, 584 F.2d 223,

226, 229–30 (7th Cir. 1978), abrogated in part on other grounds by Abdul-Wadood v. Duckworth,

860 F.2d 280, 285 (7th Cir. 1988) (holding a prisoner’s transfer from a minimum-security

facility to a maximum-security facility could amount to retaliation).

Oliver advanced the argument that he suffered restrictions on his freedom

stemming from the decision to transfer, including loss of a daily shower, access to a

phone, more recreation time, exercise, fresh air, daily morning walks, weekly commissary

shopping, and the opportunity to earn more money via state-pay (Doc. 86 at 3). Yet

prisoners are subjected to harsher conditions than ordinary citizens. See Giles v. Godinez,

914 F.3d 1040, 1054 (7th Cir. 2019) (“Prison is, by its very nature, an unpleasant place to

be.”). “Thus, the disruption inherent in a transfer to a different facility does not by itself

make the transfer adverse.” Holleman v. Zatecky, 951 F.3d 873, 882 (7th Cir. 2020). If Oliver

showed he was transferred into a life threatening situation, was restricted by the transfer

in such a way that he was unable to engage in filing additional or other grievances,

and/or that the transfer was not routine and was to a destination he was not otherwise

eligible for transfer, for example, that may qualify as retaliation, but those facts do not

exist here.

Accordingly, Oliver has failed to meet his burden of proof to show that the transfer

was sufficiently adverse, so his First Amendment right to be free from retaliation was not

violated. Because there was no constitutional violation, there is no need to analyze

whether Defendants were entitled to qualified immunity. See Holleman, 951 F.3d at 882.

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ Motion for

Summary Judgment (Doc. 83), DISMISSES the claims against them, and DIRECTS the

Clerk of Court to enter judgment accordingly and close this case.

IT IS SO ORDERED

DATED: August 4, 2020 7 (oentteng

wot

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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