Elkins, Jr. v. Doe 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TIMOTHY ELKINS, JR., )

)

Plaintiff, )

)

vs. ) Case No. 3:19-CV-55-MAB

)

LEVI QUINN, RONALD VITALE, and )

ROB JEFFREYS, )

Defendants. )

)

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on the motion for summary judgment filed by

Defendants Levi Quinn, Ronald Vitale, and Rob Jeffreys1 (Docs. 122 & 123). For the

reasons explained below, Defendants’ request for summary judgment on Count 2 is

granted. The Court defers ruling on Defendants’ request for summary judgment on

Count 3.

BACKGROUND

Plaintiff Timothy Elkins, Jr. (“Plaintiff”) brings this pro se civil rights action

pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights under the First and

Eighth Amendments. Plaintiff alleges Defendant Quinn subjected him to harassment that

constitutes cruel and unusual punishment under the Eighth Amendment. Plaintiff claims

1 Defendant Jeffreys is named in this case in his official capacity only to effectuate injunctive relief (Doc.

20).

Defendant Vitale retaliated against Plaintiff for reporting the harassment by transferring

Plaintiff to a different correctional facility, in violation of the First Amendment.

Following a threshold review of the Complaint pursuant to 28 U.S.C. § 1915A,

Plaintiff was permitted to proceed in this lawsuit on the following claims:2

Count 2: Eighth Amendment claim against Lieutenant Levi Quinn for

harassing Plaintiff during transport from Centralia Correctional

Center on August 24, 2018.

Count 3: First Amendment retaliation claim against Warden Vitale for

transferring Plaintiff out of Southwestern Illinois Correctional

Center on October 3, 2018.

(Doc. 20).

On August 26, 2021, Defendants filed a motion for summary judgment on the

merits of Plaintiff’s claims (Docs. 122 & 123). On August 30, 2021, Plaintiff filed a response

to Defendants’ motion for summary judgment (Doc. 126).

UNDISPUTED MATERIAL FACTS

The following material facts are not genuinely disputed. On August 24, 2018,

Plaintiff was in custody of the Illinois Department of Corrections (“IDOC”) and housed

at Centralia Correctional Center (“Centralia”) (Doc. 123-1, p. 10:18-11:3). Defendant Levi

Quinn is a correctional officer who was employed by IDOC at Centralia at all times

relevant to Plaintiff’s Complaint (Doc. 127). Defendant Quinn is not a mental health

professional (Id.).

2 Count I of Plaintiff’s Complaint also survived threshold review but was severed into a separate lawsuit.

See Elkins v. Fatheree, SDIL Case No. 18-2019-GCS.

On August 24, 2018, Defendant Quinn and another non-defendant correctional

officer transported Plaintiff on a court writ from Centralia to Macoupin County

Courthouse in Carlinville (Doc. 123-2) (Doc. 123-3). Prior to leaving Centralia on the

morning of August 24, 2018, a correctional lieutenant told Plaintiff to bend over, to which

Defendant Quinn replied, “he’s smart, he’ll do whatever he’s told” and laughed (Doc.

123-1, p. 15:18-25; 16:1-17).3 During the ride to Carlinville, Defendant Quinn asked

Plaintiff if his lawyer was “hot” (Id. at p. 23:15-24:9; 53:1-23). Plaintiff told Defendant

Quinn his lawyer was a man, to which Defendant Quinn responded that he did not ask

him if his lawyer was a man, he asked if his lawyer was hot (Id. at p. 23:15-25; 24:1-9;

23:15-25; 24:1-9). Plaintiff responded that he is not gay (Id. at p. 47:23-48:5). Defendant

Quinn responded that he was not implying Plaintiff is gay (Id. at p. 53:1-23). No other

individuals in IDOC custody were present in the vehicle during Plaintiff’s transfer to the

Macoupin County courthouse (Doc. 123-2). Plaintiff told Defendant Quinn the comments

were “upsetting” Plaintiff (Doc. 126, p. 3).

After arriving at the Macoupin County courthouse, a woman walked by

Defendant Quinn and Defendant Quin told Plaintiff, “I bet her playground’s been played

on a lot” (Doc. 123-1, p. 28:15-22; 29:10-17). Defendant Quinn commented on another

woman’s large rear end by stating there must be something in the water making women

look like that (Id. at p. 28:23-29:9; 30:18-25). No other individuals in IDOC custody were

3 In their motion, Defendants accept as true Plaintiff’s allegations that Defendant Quinn actually made the

harassing comments to Plaintiff. See e.g. Doc. 213, p. 2 (“[E]ven if Defendant Quinn did make certain

sexually explicit comments to Plaintiff, such comments do not rise to the level of a constitutional

violation.”). Thus, for summary judgment purposes, the Court does the same.

present when Defendant Quinn made these comments (Id. at p. 29:24-30:7). During

Plaintiff’s court appearance at Macoupin County, the judge discussed Plaintiff’s

medications for anxiety and depression (Doc. 126, p. 3). Defendant Quinn was present for

the judge’s comments (Id.).

On the car ride back to Centralia, the vehicle passed a sign that stated, “Bushy

Mound” (Doc. 123-1, p. 41:1-5; 42:7-23). Defendant Quinn commented that Bushy Mound

referred to a vagina (Id.). Defendant Quinn also asked Plaintiff whether he would “let

five black guys run a train” on Plaintiff if he would be released from custody (Id. at p.

41:6-15; 43:19-44:9; 44:20-25). Also, Defendant Quinn asked Plaintiff if he would jump

over the fence at Centralia to escape, if he could (Id. at p. 41:10-12). No other individuals

in IDOC custody were present in the vehicle during Plaintiff’s transfer from the

Macoupin County courthouse (Doc. 123-2).

On September 19, 2018, Plaintiff was transferred to Southwestern Illinois

Correctional Center (“SWICC”) (Doc. 123-7). Defendant Ronald Vitale was the warden

of SWICC at all times relevant to Plaintiff’s Complaint (Doc. 129). On September 20, 2018,

two mental health professionals employed at SWICC completed staff familiarity forms

and an incident report about Plaintiff (Doc. 123-8) (Doc. 123-9). The two mental health

professionals indicated they had provided treatment to Plaintiff’s family members (Id.).

One of the mental health professionals stated she had provided treatment to Plaintiff’s

children pertaining to Plaintiff’s custody within IDOC and his underlying criminal

charges (Doc. 123-8). The mental health professional stated that, as a licensed counselor,

she could not have direct contact with clients or their family outside of treatment and that

her knowledge of Plaintiff and the treatment she provided to his children would prohibit

her from having any direct contact with Plaintiff (Doc. 123-8) (Doc. 123-9). The other

mental health professional stated she did not believe her former employment or

treatment of Plaintiff’s children would interfere with her job responsibilities (Doc. 123-8).

On September 25, 2018, Plaintiff’s transfer from SWICC was initiated (Doc. 123-

10). Defendant Vitale approved Plaintiff’s transfer (Doc. 129) (Doc. 123-10). The stated

reason for the transfer was the mental health professionals’ familiarity with Plaintiff (Doc.

123-10). Although not a written IDOC policy, if issues arise with staff familiarity, the

individual in custody is generally transferred to another facility (Doc. 129).

On September 25, 2018, the same day Plaintiff’s transfer was initiated, the

Centralia Internal Affairs Unit received a Prison Rape Elimination Act (“PREA”)

complaint from Plaintiff concerning Defendant Quinn’s harassment of Plaintiff (Doc. 123-

5). On September 25, 2018, SWICC Internal Affairs interviewed Plaintiff and Centralia

Internal Affairs interviewed Defendant Quinn (Id.). Central Internal Affairs interviewed

another correctional officer on September 26, 2018 (Id.). Centralia Internal Affairs

determined Plaintiff’s allegations were unsubstantiated (Id.). Plaintiff was transferred to

Sheridan Correctional Center on October 3, 2018 (Doc. 123-7).

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when the moving party “shows that 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). “Factual disputes are genuine only if there is sufficient

evidence for a reasonable jury to return a verdict in favor of the non-moving party on the

evidence presented, and they are material only if their resolution might change the suit’s

outcome under the governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir.

2013) (citation and internal quotation marks omitted). In deciding a motion for summary

judgment, the court’s role is not to determine the truth of the matter, and the court may

not “choose between competing inferences or balance the relative weight of conflicting

evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hansen v. Fincantieri

Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014) (citations omitted); Doe v. R.R. Donnelley

& Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Instead, “it must view all the evidence in the

record in the light most favorable to the non-moving party and resolve all factual disputes

in favor of the non-moving party.” Hansen, 763 F.3d at 836.

DISCUSSION

A. Eighth Amendment Claim For Cruel And Unusual Punishment (Count 2)

“The Eighth Amendment prohibits cruel and unusual punishments that involve the

unnecessary and wanton infliction of pain.” Lisle v. Welborn, 933 F.3d 705, 716 (7th Cir.

2019). Verbal harassment that inflicts psychological pain may constitute cruel and

unusual punishment, but only in “extreme” and “seldom” circumstances. Id. at 719.

“The line between mere harassment and cruel and unusual punishment is fuzzy.”

Dobbey v. Illinois Dept. of Corrections, 574 F.3d 443, 446 (7th Cir. 2009) (internal quotations

omitted). “Relationships between prisoners and prison staff are not always marked by

genteel language and good manners,” Lisle, 933 F.3d at 719, and “most verbal harassment

by jail or prison guards does not rise to the level of cruel and unusual punishment,” Beal

v. Foster, 803 F.3d 356, 358 (7th Cir. 2015). Although there is no bright line test for

determining when harassment becomes a constitutional violation, the Seventh Circuit has

provided several examples to guides this Court’s analysis.

In Beal, the plaintiff was an inmate who alleged a sergeant at a correctional facility

repeatedly made sexual comments to the plaintiff, instructed the plaintiff to “place his

penis inside [another inmate],” and displayed his penis to the plaintiff while urinating

and smiling, all while in the presence of other inmates. 803 F.3d at 358. The other inmates

harassed the plaintiff by calling him homophobic slurs, which was “possibly inspired or

encouraged” by the defendant’s conduct. Id. At the motion to dismiss stage, the Seventh

Circuit found the plaintiff stated an Eighth Amendment claim because the defendant’s

comments and actions “could have been understood by the inmates as implying that the

plaintiff is a homosexual” and thus “increased the likelihood of sexual assaults on him

by other inmates.” Id. Additionally, the plaintiff alleged he experienced “severe

psychological harm” that induced him to seek help from mental health professionals on

several occasions. Id. at 358-59.

The Court in Beal offered additional illustrations of when verbal harassment rises

to the level of cruel punishment:

Suppose a prisoner is having severe headaches and he complains about

them to a prison doctor, who writes him a prescription for a powerful drug.

A malicious guard learns of this and tells the prisoner the following lie: “the

doctor didn't tell you, but he told me: you have incurable brain cancer and

will be dead in three months. Now let me tell you what he told me are the

symptoms you will be experiencing as your cancer worsens.” Or the guard,

again lying, tells another prisoner: “I am sorry to have to inform you that

your wife and children have been killed in a car crash.” The harassment in

both cases is purely verbal, yet as cruel (and, one hopes, as unusual) as in

cases of physical brutalization of prisoners by guards. To attempt to draw

a categorical distinction between verbal and physical harassment is

arbitrary. In short, “the alleged pain [sufficient to constitute cruel

punishment] may be physical or psychological.” Watison v. Carter, 668 F.3d

1108, 1112 (9th Cir.2012) (emphasis added).

Id.

As another example, the Seventh Circuit has stated, “Mental torture is not an

oxymoron, and has been held or assumed in a number of prisoner cases to be actionable

as cruel and unusual punishment—imagine falsely informing a prisoner that he has been

sentenced to death.” Dobbey, 574 F.3d at 445 (internal citations and quotations omitted).

Further, in Lisle, the Court found a prisoner’s Eighth Amendment claim survived

summary judgment, where a nurse assigned to a prisoner on suicide watch allegedly

taunted and encouraged the plaintiff to take his own life. 833 F.3d at 705. The nurse told

the plaintiff he should have “properly” attempted suicide and should “do a better job

next time.” Id. at 712. The Seventh Circuit noted the defendant “was uniquely situated

to aggravate Lisle’s condition by using her specialized knowledge to target his

psychological vulnerabilities, causing him psychological pain.” Id. The Court cautioned

that it intended its holding to be “narrow” and that the Eighth Amendment will only

apply to cases of “extreme” verbal harassment. Id. at 719.

The undisputed facts of this case are markedly different from the extreme

situations in which courts have found constitutional violations based on harassment.

Here, Defendant Quinn commented Plaintiff was “smart” and would “do whatever he’s

told” when Plaintiff was instructed to bend over. Also, Defendant Quinn asked Plaintiff

whether he would have sex with other male inmates to get released from prison, whether

he would jump the prison’s fence to escape, and if he found his male attorney attractive.

Additionally, Defendant Quinn made sexually explicit comments about women and

compared a sign that stated “Bushy Mound” to a vagina. Further, Plaintiff contends

Defendant Quinn prolonged Plaintiff’s transport from the Macoupin County courthouse

to Centralia as a form of harassment.4

There is no doubt Defendant Quinn’s comments were unprofessional. In fact, they

were quite vulgar. While the Court wishes to make clear it does not condone Defendant

Quinn’s comments and conduct, his behavior does not rise to the level of cruel and

unusual punishment prohibited by the Eighth Amendment. Unlike Beal and Lisle, there

is no evidence of a compounding factor that crosses the boundary between unactionable

harassment and unconstitutional psychological punishment. For example, Defendant

Quinn’s comments were not made in front of other inmates, did not incite other inmates

to harm Plaintiff, were not accompanied by a threatening act, and were isolated to a single

day. Cf. Beal, 803 F.3d at 358 (where the defendant repeatedly displayed his penis to the

plaintiff in front of other inmates and implied the plaintiff was a homosexual, which

possibly placed the plaintiff at risk of sexual assault). Additionally, Defendant Quinn’s

conduct does not implicate a malicious animus or psychologically punishing affect that

is analogous to falsely telling an inmate his wife and children died in a car accident, he

4 Defendants introduce IDOC transportation records that indicate the return trip to Centralia took less

time than the trip from Centralia to the courthouse (Doc. 123-2). However, Plaintiff submits an affidavit

that the trip lasted approximately 45 minutes longer (Doc. 126, p. 3). For purposes of summary judgment,

the Court construes the record in the light most favorable to Plaintiff and resolves the factual dispute

concerning the length of the return trip in Plaintiff’s favor. Hansen v. Fincantieri Marine Grp., LLC, 763

F.3d 832, 836 (7th Cir. 2014).

has incurable cancer, or he was sentenced to death. See Beal, 803 F.3d at 358-59; Dobbey,

574 F.3d at 445. Further, although Plaintiff suffers from anxiety and depression, there is

no evidence Defendant Quinn used specialized knowledge of Plaintiff’s mental health to

deliberately target Plaintiff’s vulnerabilities.5 Defendant Quinn’s comments were entirely

unrelated to Plaintiff’s mental health and Plaintiff does not contend that Defendant

Quinn intentionally exploited his anxiety or depression. Cf. Lisle, 933 F.3d 705 (where the

nurse assigned to the plaintiff’s suicide watch made fun of the plaintiff for his failed

suicide attempt and told him to “do a better job next time”). In fact, many of Defendant

Quinn’s comments were either directed towards other individuals or were not aimed

“directly and hurtfully” at Plaintiff. See Beal, 803 F.3d at 358 (explaining that a series of

sexually suggestive comments made to a prisoner about female teachers was not

unconstitutional because the harassment “was directed, to a significant degree, at the

female teachers,” was not “aimed directly and hurtfully” at the plaintiff, and constituted

“second-hand harassment”).

Additionally, there is no evidence that Plaintiff suffered severe psychological

harm as a result of the harassment or that Defendant Quinn’s conduct would cause a

reasonable person to fear a substantial risk of a serious injury. The test for what

constitutes cruel and unusual punishment is an objective one that evaluates whether a

reasonable victim would fear a substantial risk of harm; the test does not turn on “the

actual fear of the victim.” Dobbey, 574 F.3d at 446. Here, Plaintiff submits an affidavit in

5 The parties dispute whether Defendant Quinn was aware that Plaintiff takes medication for anxiety and

depression. Again, for purposes of summary judgment, the evidence is viewed in the light most favorable

to Plaintiff and the Court assumes Defendant Quinn was aware of Plaintiff’s mental health conditions.

opposition to Defendants’ summary judgment motion that states Defendant Quinn’s

comments were “upsetting” (Doc. 126, p. 3). Also, Plaintiff previously filed an affidavit

in support of his Complaint that states the harassment made him “scared to even go on

writs now,” made his depression and anxiety “much worse,” and made him fear for his

life (Doc. 19). However, there is no evidence that Plaintiff sought psychological care for

the incident and Plaintiff does not detail the symptoms he suffered as a result of the

harassment. Cf. Beal, 803 F.3d at 358-59 (where the plaintiff claimed “to have experienced

psychological harm as a result of the incident described…that induced him to seek ‘psych

service’ help repeatedly”). Further, Plaintiff provides no explanation as to how Defendant

Quinn’s conduct made him fear for his life. Plaintiff states that a retired officer at Graham

Correctional Center previously placed Plaintiff in segregation and threatened to kill him

(Doc. 19). But there is no connection between these allegations and Defendant Quinn or

the incident in question that would induce a reasonable victim to fear a serious injury.

In the absence of physical endangerment, severe psychological harm, or another

compounding factor, Defendant Quinn’s harassment does not amount to an Eighth

Amendment violation. See Robinson v. Budde, 2021 WL 1722857 (N.D. Ill. April 30, 2021)

(granting summary judgment to the defendants where the plaintiff alleged he felt

humiliated, had insomnia, and isolated himself in his cell for a couple of days as a result

of harassment, but there was no evidence the plaintiff sought psychological care, he did

not fear a physical attack, and there were no repeated incidents of abuse); Scruggs v.

Miller, 2016 WL 495603 (N.D. Ind. Feb. 8, 2016) (finding no constitutional claim where the

defendants called an inmate a racial slur and told the inmate they wanted him dead,

would have the “KKK go see his family,” and would put his children’s photos on child

porn websites, because the harassment did not increase the risk of any future harm to the

plaintiff or cause him psychological harm); Rausch v. Bortz, 2017 WL 6805690 (W.D. Wis.

Nov. 8, 2017) (finding no constitutional claim where a prison guard told the plaintiff he

probably used his hat to “wipe semen off of his celly’s stomach” because the harassment

was not repeated and it did not place the plaintiff at risk of assault by other inmates); Cf.

McCutcheon v. Schnicker, 2016 WL 1059009 (S.D. Ill. March 17, 2016) (permitting an Eighth

Amendment claim to proceed past summary judgment because “[a] reasonable jury

could determine that the publication of the plaintiff’s [sex] crimes and referring to the

plaintiff as a ‘child molester’ and ‘baby raping motherfucker’ to the general prison

population and staff would create fear in a reasonable victim of a substantial risk of

serious injury. If the alleged comments were made in a more private setting—such as

during a vehicle transport—the Court may have agreed that the comments were mere

harassment.”) (emphasis added); Lewis v. Ross, 2020 WL 6487525 (S.D. Ind. Nov. 3, 2020)

(finding a reasonable jury could find in favor of the plaintiff on an Eighth Amendment

claim where, after a guard threatened to have the plaintiff beaten and sexually assaulted,

the plaintiff was stabbed and harassed by other inmates and the plaintiff went into

suicide watch because he feared for his life); Leathers v. Johnson, 2020 WL 4819051 (S.D.

Ind. Aug. 19, 2020) (denying the defendant’s summary judgment motion on an Eighth

Amendment claim where a guard repeatedly touched the plaintiff’s “private areas” and

requested oral sex from the plaintiff, which caused the plaintiff to be harassed by fellow

inmates and seek mental health services).

Also, Plaintiff suggests Defendant Quinn knew Plaintiff had issues with his

bowels but nevertheless intentionally prolonged the return trip, which “forced [Plaintiff]

to hold [his] stool causing severe physical pain” (Doc. 126, p. 3). Plaintiff has not

introduced any evidence of how Defendant Quinn knew of Plaintiff’s bowel condition or

any other evidence that would permit a reasonable jury to find in favor of Plaintiff on this

basis. Further, the Court’s order pursuant to 28 U.S.C. § 1915A, dated April 25, 2019, omits

any reference to an Eighth Amendment claim based on Plaintiff’s bowel condition.

Plaintiff cannot amend his complaint through argument in his brief in opposition to

Defendants’ motion for summary judgment. Anderson v. Donahoe, 699 F.3d 989, 997 (7th

Cir. 2012).

In sum, as a matter of law, Defendant Quinn’s conduct does not constitute the rare

case where repugnant words and harassment rise to the level of unconstitutional

punishment prohibited by the Eighth Amendment. For these reasons, Plaintiff’s Eighth

Amendment claim for cruel and unusual punishment fails as a matter of law and

Defendant Quinn is entitled to summary judgment on Count 2 of the Complaint.

B. First Amendment Claim For Retaliation (Count 3)

To prevail on a First Amendment retaliation claim, a plaintiff must establish (1) he

engaged in protected First Amendment activity; (2) an adverse action was taken against

him; and (3) the protected conduct was at least a motivating factor of the adverse action.

Holleman v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020). If the plaintiff establishes these

elements, the burden shifts to the defendants to show that the adverse action would have

occurred even in the absence of the protected conduct. Greene v. Doruff, 660 F.3d 975, 979

(7th Cir. 2011). Once the defendant produces evidence that that the same decision would

have been made in the absence of the protected conduct, the burden shifts back to the

plaintiff to demonstrate the defendant’s proffered reason was pretextual and that the real

reason was retaliatory animus, i.e., the defendant’s reason is a lie. Thayer v. Chiczewski,

705 F.3d 237, 252 (7th Cir. 2012).

Here, Plaintiff claims Defendants transferred him to a different correctional facility

as retaliation for Plaintiff filing a PREA complaint. Defendants concede that Plaintiff

engaged in protected First Amendment activity by filing the PREA complaint (Doc. 123,

p. 13). Further, Defendants do not contest that adverse action was taken against Plaintiff

(See Doc. 123). However, Defendants argue Plaintiff cannot establish that the PREA

complaint was at least a motivating factor in Plaintiff’s transfer.

Defendants set forth evidence that two mental health professionals at SWICC

completed staff familiarity forms and an incident report pertaining to their familiarity

with Plaintiff and his family members (Doc. 123-8) (Doc. 123-9). Both staff members stated

they provided mental health treatment to Plaintiff’s family members, and one of the staff

members stated the conflict would prohibit her from having direct contact with Plaintiff

(Id.). Defendant Vitale submits an affidavit that states Plaintiff was transferred from

SWICC solely because of the staff familiarity issues and that, although not a written IDOC

rule or policy, it is standard operating procedure for offenders to be transferred to another

facility when staff familiarity may affect their job performance (Doc. 129). Also,

Defendants contend Plaintiff’s PREA complaint could not have been a motivating factor

in the decision to transfer Plaintiff, because the investigation of the complaint was not

completed until after the transfer was initiated.

On the other hand, Plaintiff sets forth his own affidavit in which he states that a

staff member at SWICC informed him that Defendant Vitale was transferring Plaintiff to

another facility because Plaintiff filed a PREA complaint. The affidavit states:

The Mental Health women who is African American, told me a day or two

before i [sic] was transferred that I was being transferred by Warden Vitale

because I ran my mouth and he did not want someone reporting PREA

against IDOC officials at his prison. She said when I get to Sheridan

Correctional Center to keep my mouth shut and I would be fine.

(Doc. 126, p. 3).

Viewing the record in the light most favorable to Plaintiff, a rational trier of fact

could find that Plaintiff’s PREA complaint was at least a motivating factor in Defendants’

decision to transfer Plaintiff to another facility and that Defendants’ proffered reason for

Plaintiff’s transfer was pretextual. The fact that the investigation into Plaintiff’s PREA

complaint was not completed until after Plaintiff’s transfer was initiated is immaterial;

the question is whether Plaintiff’s filing of the complaint was a motivating factor. Thus,

the parties’ competing evidence raises issues about credibility and intent that cannot be

resolved on summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986) (“[A]t the summary judgment stage the judge’s function is not himself to weigh

the evidence and determine the truth of the matter but to determine whether there is a

genuine issue for trial.”). “[S]ummary judgment is inappropriate when affidavits require

credibility determinations,” and “where the underlying issue is one of motivation, intent,

or some other subjective fact.” Santiago v. Lane, 894 F.2d 218, 224 (7th Cir. 1990).

However, although Defendants did not address whether Plaintiff’s transfer

constitutes an “adverse action,” it appears obvious under Seventh Circuit precedent that

the facts of this case, as alleged and if true, do not satisfy this element of a First

Amendment retaliation claim. See Holleman v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020).

In Holleman, the Seventh Circuit held, “[T]he disruption inherent in a transfer to a

different facility does not by itself make the transfer adverse. Without some additional

aggravating factor, such as relocation to a much more restrictive or dangerous

environment, a transfer is not likely to deter a person of ordinary firmness from

continuing to engage in protected conduct.” Id. Plaintiff has not alleged any aggravating

factors associated with his transfer that would deter an inmate of ordinary firmness from

engaging in protected conduct. Thus, the Court is inclined to grant summary judgment

to Defendants on Count 3 pursuant to Rule 56(f).6 However, the Court defers its ruling to

afford Plaintiff an opportunity to respond and explain why summary judgment is

inappropriate.

C. Qualified Immunity

Alternatively, Defendants argue they are entitled to summary judgment because

qualified immunity protects them from liability. This Court has already concluded that

Plaintiff’s claim for cruel and unusual punishment fails as a matter of law. Thus, the

6 Under Federal Rule of Civil Procedure 56(f), the Court may grant summary judgment independent of a

motion provided the parties are given notice and a reasonable time to respond. FED. R. CIV. P. 56(f).

remaining issue is whether Defendants are entitled to summary judgment on Plaintiff’s

First Amendment retaliation claim on the grounds of qualified immunity.

“Qualified immunity attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” White v. Pauly, 137 S. Ct. 548, 551 (2017). The test for qualified immunity has

two prongs: (1) whether the facts, taken in the light most favorable to the party asserting

the injury, demonstrate that the official’s conduct violated a constitutional right, and (2)

whether the right at issue was clearly established at the time of the alleged misconduct.

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

As set out above, Plaintiff may be able to set forth a genuine issue of material fact

concerning his First Amendment retaliation claim to permit the claim to proceed past

summary judgment. Further, Plaintiff’s First Amendment Right was clearly established

at the time of Defendants’ alleged misconduct. “[F]ederal courts have long recognized a

prisoner’s right to seek administrative or judicial remedy of conditions of confinement,

as well as the right to be free from retaliation for exercising this right.” Babcock v. White,

102 F.3d 267, 276 (7th Cir. 1996). Thus, Defendants are not entitled to summary judgment

on Plaintiff’s First Amendment retaliation claim on the basis of qualified immunity.

CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment filed by Defendants

is GRANTED in part as to Plaintiff’s Eighth Amendment claim against Defendant Levi

Quinn in Count 2. Judgment will be entered in his favor at the conclusion of the case. The

Court DEFERS RULING in part as to Plaintiff’s First Amendment claim against

Defendant Ronald Vitale in Count 3. The Court finds that based on the record as it

currently stands, Defendant Vitale is entitled to summary judgment on Count 3.

However, Plaintiff shall have an opportunity to respond. Such response is due within

fourteen days—on or before March 15, 2022— and must explain why summary judgment

should not be awarded to Defendant Vitale and present competent evidence in support

of his argument that demonstrates a genuine issue of material fact. If Plaintiff fails to

file a brief, summary judgment will be summarily granted for Defendant Vitale as to

Count 3.

IT IS SO ORDERED.

DATED: March 1, 2022

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge