PERRY v. STATON

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

JASON SETH PERRY, )

)

Plaintiff, )

)

v. ) No. 2:19-cv-00237-JMS-MJD

)

K. STATON, et al. )

)

Defendants. )

Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment,

Granting in Part and Denying in Part Defendants' Cross-Motions for Summary Judgment,

and Directing Entry of Final Judgment

Plaintiff Jason Perry, an inmate of the Indiana Department of Correction ("IDOC"), alleges

that the defendants violated his Eighth and Fourteenth Amendment rights when they placed him

on Department-wide Disciplinary Restricted Status Housing ("DWRH-D"), failed to properly

conduct his annual review hearing, and did not allow him to participate in certain prison

rehabilitation programs. Mr. Perry also contends that the defendants' actions were taken in

retaliation for his filing of several lawsuits against various IDOC employees. Mr. Perry and the

defendants1 seek summary judgment on these claims. For the following reasons, Mr. Perry's

motion for summary judgment is granted in part and denied in part and the defendants' cross-

motions for summary judgment are granted in part and denied in part.

1 In the motion for summary judgment, Mr. Perry states, "Plaintiff's claims rest mostly on

defendants Jerry Snyder, Charles Dugan, Michael Osburn, Jack Hendrix, and Kamma Staton."

Dkt. 101, p. 19. Further, he does not specifically discuss claims against any of the other named

defendants in his briefing. Accordingly, the Court considers Mr. Perry to have withdrawn his

claims against the defendants other than those identified in his brief in support of his motion for

summary judgment.

I. Summary Judgment Standard

A motion for summary judgment asks the Court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a). Whether a party asserts that a fact is undisputed or

genuinely disputed, the party must support the asserted fact by citing to particular parts of the

record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). Failure to

properly support a fact in opposition to a movant's factual assertion can result in the movant's fact

being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P.

56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts

that are material to the decision. A disputed fact is material if it might affect the outcome of the

suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). "A genuine

dispute as to any 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, 609-10 (7th Cir. 2018)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

On summary judgment, a party must show the Court what evidence it has that would

convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896

(7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder

could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir.

2009). The Court views the record in the light most favorable to the non-moving party and draws

all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717

(7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment

because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir.

2014). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh

Circuit Court of Appeals has repeatedly assured the district courts that they are not required to

"scour every inch of the record" for evidence that is potentially relevant to the summary judgment

motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 572-73 (7th Cir. 2017).

Any doubt as to the existence of a genuine issue for trial is resolved against the moving party.

Anderson, 477 U.S. at 255.

II. Motion to Strike

Mr. Perry moves to strike certain exhibits to the defendants' motions for summary

judgment. Specifically, Mr. Perry moves to strike the document titled "Actions, Consequences,

and Treatment (ACT) Program," Dkt. 103-13, and the declaration of Jerry Snyder, dkt. 103-19.

Mr. Perry asserts that these documents cannot be used in support of the defendants' motions for

summary judgment because they were not properly disclosed to him in discovery and cannot be

authenticated.

Rule 37 of the Federal Rules of Civil Procedure states that if a party "fails to provide

information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use

that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the

failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). When deciding whether

evidence should be excluded, the Court considers "(1) the prejudice or surprise to the party against

whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood

of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence

at an earlier date. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003).

First, the ACT Program document was properly authenticated pursuant to Rule 901 of the

Federal Rules of Evidence. Rule 901 requires a proponent of evidence to produce evidence

sufficient to support a finding that the item is what the proponent claims it is. Rule 901(a). This

can be done with sworn testimony of a person with knowledge regarding the document. Rule

901(b)(1). The defendants properly authenticated the document at issue through Mr. Snyder's

testimony. Dkt. 103-19, ¶ 6.

Next, Mr. Perry argues that the document was not provided to him as part of the defendants'

initial disclosures. The defendants explain that, in the operative complaint, Mr. Perry did not allege

that he was denied the opportunity to participate in prison programs and that they first learned of

his intention to pursue such a claim during his deposition on August 4, 2020, and later in his motion

for summary judgment. The defendants then included the document in their cross motion for

summary judgment. While Mr. Perry contends that he did state retaliation claims in his Second

Amended Complaint, the allegations in that pleading do not refer to the ACT Program.2 See dkt.

49. Mr. Perry also contends that he filed multiple motions to compel, which should have given the

defendants' the opportunity to "look at discovery" and that he submitted interrogatories to

Mr. Snyder regarding his job duties and that he should have provided the ACT Program document

in response to these interrogatories. But Mr. Perry has pointed to no discovery request or discussion

in which he notified the defendants that his claims relied in part on the ACT Program. The Court

therefore finds no bad faith or willfulness on the part of the defendants in failing to produce the

ACT Program document until after Mr. Perry had referred to the program specifically as part of

the basis of his retaliation claim. Accordingly, the motion to strike, dkt. [113], is denied.

2 Mr. Perry also asserts that the defendants failed to timely mail their response to the motion to

strike to him. He states that they mailed it to him on October 30, 2020, stating that the response

was returned to them "due to a clerical mistake." Dkt. 131. There is no reason to believe this

assertion by the defendants is false. And, in any event, the Court has considered Mr. Perry's reply

in support of the motion to strike. Mr. Perry also challenges the docketing of certain of his

submissions to the Court. Mr. Perry is informed that, in considering the pending motions for

summary judgment, the Court will carefully review all of the applicable filings.

III. Facts

The following statement of facts has been evaluated pursuant to the standards set forth

above. The facts are considered to be undisputed except to the extent that disputes are noted.

A. Mr. Perry's Transfer

Mr. Perry arrived at New Castle Correctional Facility ("NCCF") on January 10, 2018.

Dkt. 103-3.

In May of 2018, Keith Butts, the Warden of NCCF, recommended that Mr. Perry be

transferred to another facility and placed in Department-Wide Administrative Restricted Status

Housing ("DWRH-A").3 Dkt. 103-3; dkt. 103-4. Warden Butts's recommendation was forwarded

to Michael Osburn, the Director of Operations for IDOC at that time, for his approval. See dkt. 103-

4.

On June 27, 2018, Mr. Perry was approved for transfer to DWRH-A. Dkt. 101-1, p. 5. That

same day, Mr. Perry was sanctioned with a total of nine months in Department-Wide Disciplinary

Restricted Status Housing ("DWRH-D")4 after he was found guilty of threating and assaulting

another offender with bodily fluids. Dkt. 103-5, p. 1; dkt. 101-1, p. 9; dkt. 103-1, p. 10:7-12.5

3 Department-Wide Administrative Restricted Status Housing (DWRH-A) is a housing designation

given to an offender who demonstrates a pattern of dangerous behavior which requires enhanced

security measures and isolation from other offenders. At all times relevant to Plaintiff's Complaint,

three IDOC facilities were equipped to house offenders assigned to DWRH-A – Wabash Valley

Correctional Facility, Westville Correctional Facility, and Pendleton Correctional Facility.

4 Department-Wide Disciplinary Restricted Housing (DWRH-D) is a housing designation given to

an offender who is found guilty of violating the IDOC Disciplinary Code of Adult Offenders.

Individual offenders who are found guilty of certain conduct violations may be placed on DWRH-

D for a certain period of time as punishment for violating prison rules. At all times relevant to this

Complaint, two IDOC facilities were equipped to house offenders assigned to DWRH-D – Wabash

Valley Correctional Facility and Westville Correctional Facility.

5 References to Mr. Perry's deposition are to the deposition page, not the page number in CM/ECF.

On July 13, 2018, Mr. Osburn, then the Director of Classification for IDOC, approved

Mr. Perry's transfer from NCCF to Wabash Valley Correctional Facility ("WVCF"). Dkt. 103-4.

When approving Mr. Perry's transfer, Mr. Osburn noted that Mr. Perry had been sanctioned with

time on DWRH-D and approved his transfer to either WVCF or Westville Correctional Facility

(WCU). Id. Mr. Osburn testifies that Mr. Perry's receipt of disciplinary sanctions was the sole

reason that he approved Mr. Perry's transfer and noted his placement on DWRH-D. Dkt. 109-5, ¶

8-9. After his transfer was approved, Mr. Perry was held in segregation at NCCF until December

20, 2018, when he was transferred to WVCF. Dkt. 103-1 at 12:18-23. Once at WVCF, Case

Manager Charles Dugan notified Mr. Perry that he was being placed in the Secured Confinement

Unit (SCU) to serve his remaining time on DWRH-D. Dkt. 103-18, ¶ 5.

B. Mr. Perry's First Classification Appeal

On December 26, 2018, Mr. Perry appealed Mr. Dugan's decision to keep him on DWRH-

D. Dkt. 103-6, p. 2. In his appeal, Mr. Perry asserted that, although he had been sentenced to nine-

months in DWRH-D, he had actually been "reclassed" to DWRH-A by staff at NCCF on that same

day. Dkt. 103-6, p. 2; Dkt. 103-16, ¶ 2. After reviewing Mr. Perry's classification appeal,

Defendant Jack Hendrix, Director of Classification for IDOC, determined that Mr. Perry was

appropriately placed and denied his appeal. Dkt. 103-6, p. 1; dkt. 103-16, p. ¶¶ 4-6. Mr. Perry

finished serving his time on DWRH-D on or around March 6, 2019. Dkt. 103-18, p. ¶ 6. After

Mr. Perry was released from DWRH-D on March 6, 2019, he was reclassified to DWRH-A.

Dkt. 103-8; dkt. 103-18, ¶ 9.

C. Mr. Perry's Second Classification Appeal

On March 15, 2019, Mr. Perry appealed the decision to place him on DWRH-A. IDOC

Release Specialist, Kamma Staton reviewed Mr. Perry's appeal. Dkt. 103-7; dkt 103-17, ¶ 2. When

she received the appeal, Ms. Staton believed this appeal to be duplicative of the earlier appeal

which Mr. Hendrix denied on or around January 11, 2019. Dkt. 103-7; dkt. 103-17, ¶ 4. On April

16, 2019, Ms. Staton responded to Mr. Perry's appeal stating that the appeal had already been

reviewed and that "this appeal will not be reviewed again." Dkt. 103-7; dkt. 103-17, ¶ 5.

Since he was placed on DWRH-A in March of 2019, Mr. Perry's placement on DWRH-A

was reviewed by classification staff at WVCF at least once every 30 days. Dkt. 103-18, ¶ 10.

Every time Mr. Perry's housing status is reviewed, he is given a notice informing him of the staff's

decision and notifying him that he may appeal the decision. Dkt. 103-18, ¶ 11.

D. Mr. Perry's Annual Review in April 2019

On or around April 9, 2019, Mr. Dugan went to Mr. Perry's cell to conduct an Annual

Review Hearing of his classification within IDOC. Dkt. 103-12; dkt. 103-18 ¶ 12. Mr. Perry was

advised of his rights afforded to him by IDOC policy, including his right to 48-hour notification

prior to the Annual Review Hearing. Dkt. 103-1, 25:21-24; dkt. 103-12; dkt. 103-18 at ¶¶ 13-14.

Mr. Perry indicated that he did not waive his right to 48-hour notice of the hearing afforded to him

by IDOC policy. Dkt. 103-1 at 25:24-25; dkt. 103-12; dkt. 103-18, ¶ 15. After Mr. Perry refused

to waive his right to 48-hour notice, and stated he would like to present some evidence, Mr. Dugan

asked him how he would like to proceed. Dkt. 103-1 at 26:2; Dkt. 103-18 at ¶ 16. Mr. Perry told

Mr. Dugan that he would like to be transferred to a different prison. Dkt. 103-1 at 26:3-4; dkt. 103-

18, ¶ 16. Mr. Perry also requested the opportunity to prepare for the hearing. Dkt. 103-1 at 26:5-6.

In his Report of Classification Hearing, Mr. Dugan noted that Mr. Perry requested a transfer.

Dkt. 103-18, ¶ 18; dkt. 103-12. Mr. Dugan also noted that Mr. Perry had two conduct reports.

Dkt. 103-12. Mr. Perry's transfer request was ultimately denied. Dkt. 103-18, ¶ 18; dkt. 103-14.

E. Mr. Perry's Inability to Participate in Prison Programs

On December 22, 2019, Mr. Perry wrote Defendant Jerry Snyder asking to participate in

the Actions, Consequences and Treatment ("ACT") Program and the "Thinking for a Change"

Program. Dkt. 103-15; dkt. 103-19, ¶ 2. At that time, the "Thinking for a Change" Program was

not being offered to offenders housed in the WVCF SCU. Dkt. 103-19, ¶ 3. On December 30,

2019, Mr. Snyder responded to Mr. Perry's letter and informed him that the classes for the ACT

program had not been selected yet. Dkt. 103-15; dkt. 103-19, ¶ 4. Mr. Perry was not selected to

participate in the ACT program when the next classes began in February 2020. Dkt. 103-19, ¶ 5.

Mr. Perry was not selected to participate in the ACT program because he did not meet the eligibility

requirements for the program. Id. For an offender to be eligible to participate in the ACT program,

he must be free of any Class A or Class B conduct violations for at least 90 days. Dkt. 103-13; dkt.

103-19, ¶ 6. Mr. Perry was found guilty of a Class B conduct violation on December 17, 2019.

Dkt. 103-19, ¶ 7.

IV. Discussion

The parties seek summary on Mr. Perry's Fourteenth Amendment due process, Eighth

Amendment conditions-of-confinement, and First Amendment retaliation claims.

A. Due Process

The Court performs a two-step analysis when considering a procedural due process claim.

Isby v. Brown, 865 F.3d 508, 524 (7th Cir. 2017). First, the Court must determine whether the

plaintiff was deprived of a protected liberty interest. Id. Then the Court considers "what process

was due under the circumstances." Id. The defendants do not dispute that Mr. Perry's time in

segregation implicated a liberty interest. But the parties dispute whether Mr. Perry received

adequate due process when he was placed in segregation and at his annual review. Mr. Perry's due

process claims against each defendant are discussed below.

1. Osburn

Mr. Perry argues that, because Warden Butts recommended his placement on DWRH-A

on June 13, 2018, and he was approved to be transferred to DWRH-A, Mr. Osburn violated IDOC

policy when he approved the transfer to DWRH-D. Mr. Perry also argues that Mr. Osburn violated

his due process rights by delaying in issuing a transfer authority form.

A violation of policy does not amount to a due process violation. See Sandin v. Conner,

515 U.S. 472, 481-82 (1995) (Prison regulations are "primarily designed to guide correctional

officials in the administration of a prison [and are] not designed to confer rights on inmates.").

Here, it is undisputed that Mr. Perry was sentenced to nine-months disciplinary segregation as the

result of two conduct reports. Mr. Perry does not argue that he was denied due process during his

disciplinary hearing. Thus, even if his assignment to DWRH-D on the report of inter-institutional

transfer form violated IDOC policy, he has shown no constitutional due process violation. Cf.

Keller v. Donahue, 271 Fed. Appx. 531, 532 (7th Cir. 2008) (rejecting challenges to a prison

disciplinary proceeding because, "[i]nstead of addressing any potential constitutional defect, all of

[the petitioner's] arguments relate to alleged departures from procedures outlined in the prison

handbook that have no bearing on his right to due process"); Rivera v. Davis, 50 Fed. Appx. 779,

780 (7th Cir. 2002) ("A prison's noncompliance with its internal regulations has no constitutional

import—and nothing less warrants habeas corpus review."); see also Estelle v. McGuire, 502 U.S.

62, 68 at n.2 (1991) ("[S]tate-law violations provide no basis for federal habeas relief."). The same

is true of Mr. Perry's claim that Mr. Osburn failed to issue a transfer form. Mr. Perry has no due

process right to be transferred to any particular prison. See Holleman v. Zatecky, 951 F.3d 873,

881 (7th Cir. 2020) (an inmate does not have a constitutional entitlement to assignment to a

particular institution).

It is undisputed that Mr. Osburn did not violate Mr. Perry's due process rights when he

approved his transfer to DWRH-D or when he failed to issue a transfer authority form.

Accordingly, Mr. Osburn, and not Mr. Perry, is entitled to summary judgment on Mr. Perry's due

process claim.

2. Hendrix

Mr. Perry contends that Mr. Hendrix violated his due process rights by failing to review

his classification appeal. But, because there is no due process right to an administrative appeal,

any failure to review an appeal cannot form the basis of a due process claim. Cf. Wolff v.

McDonnell, 418 U.S. 539, 556 (1974).

3. Staton

Mr. Perry also argues that Ms. Staton violated his due process rights when she denied his

appeal and stated that "This appeal will not be reviewed again since it was already reviewed."

Dkt. 103-7, p. 1. But, again, because Mr. Perry did not have a right to an appeal, Ms. Staton cannot

have violated his due process rights by denying it. Cf. Wolff, 418 U.S. at 556. Further, Ms. Staton's

letter merely informed Mr. Perry that she would not be reviewing what she understood to be a

duplicative appeal again. Dkt. 103-7, p. 1. And Mr. Perry was explicitly informed of his right,

pursuant to IDOC policy, to appeal subsequent classification decisions. See dkt. 103-10, p. 2.

4. Dugan

Mr. Perry contends that Mr. Dugan violated his due process rights when he failed to provide

him 48-hours' notice of his classification hearing during his annual review in April 2019.

Mr. Dugan argues that, despite the lack of 48-hours' notice, Mr. Perry was still given adequate due

process and, at any rate, he is entitled to qualified immunity on this claim.

When due process is implicated, the Supreme Court has held that "[p]rison officials must

engage in some sort of periodic review of the confinement of [inmates in administrative

segregation]." Hewitt v. Helms, 459 U.S. 460, 477 n. 9 (1983), abrogated on other grounds, Sandin

v. Conner, 515 U.S. 472, 484 (1995). This means that inmates are entitled to "some 'informal,

nonadversary' procedures." Westerfer v. Neal, 682 F.3d 679, 684 (7th Cir. 2012) (quoting Hewitt,

459 U.S. at 476). This includes "some notice" and enough time to "prepare adequately" for the

review. Id.

Here, when Mr. Dugan came to Mr. Perry's cell and told him he was there for his annual

review, Mr. Perry requested time to prepare. Dkt. 103-1 at 25:25-26-6. Mr. Dugan noted that Mr.

Perry requested a transfer but did not honor his request for time to prepare. Instead, he apparently

completed the hearing at that time. The Court concludes that this did not provide Mr. Perry due

process – "some notice" or enough time to "prepare adequately" – for the review. Westerfer, 682

F.3d at 684.

Mr. Dugan argues that even if he did not provide Mr. Perry adequate notice of his

classification hearing, he is entitled to qualified immunity on this claim. Qualified immunity

protects government officials from liability for civil damages unless their conduct violates "clearly

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

Pearson v. Callahan, 555 U.S. 223, 231 (2009); see also Burritt v. Ditlefsen, 807 F.3d 239, 249

(7th Cir. 2015). Analysis of the qualified immunity defense requires a consideration of: (1) whether

the plaintiff's constitutional rights were violated and (2) whether the rights were clearly established

at the time. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). The Court has already found that Mr.

Perry was not provided adequate notice of his April 2019, annual review. Thus, Mr. Dugan is

entitled to qualified immunity only if the right was not clearly established at the time.

Prison officials have been on notice since Hewitt that periodic reviews of administrative

segregation are constitutionally required. And the Hewitt Court explained that the inmate must

receive "some notice" and an "opportunity to present his views." 459 U.S. at 476. While the

Supreme Court has "declined to establish rigid rules and instead [has] embraced a framework to

evaluate the sufficiency of particular procedures," Wilkinson v. Austin, 545 U.S. 209, 224 (2005),

the Court has explained that "[r]equiring officials to provide a brief summary of the factual basis

for the classification review and allowing the inmate a rebuttal opportunity safeguards against the

inmate's being mistaken for another or singled out for insufficient reason." Id. at 226. In other

words, although the Supreme Court has not held that a prison official must provide an inmate a

specific amount of time to prepare for his segregation review, it was clearly established at the time

of the annual review at issue in this case that "some notice" was required. By any measure, this

annual review did not provide "some notice." Mr. Dugan is therefore not entitled to qualified

immunity on this claim.

It is undisputed that Mr. Dugan violated Mr. Perry's due process rights in the course of his

annual review.6 Mr. Perry is therefore entitled to summary judgment on this claim. The Court

finds, however, that Mr. Perry has not demonstrated that he suffered any injury from this due

process violation. While he states that he requested more time to prepare for this review, he does

6 Mr. Perry also challenges some of the 30-day reviews he received while in DWRH-A. But, even

liberally construing the Second Amended Complaint, dkt. 49, the Court finds that that pleading

does not "contain sufficient factual matter, accepted as true, to state a claim for relief" related to

the 30-day reviews. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, the Court did not identify

a claim based on the 30-day reviews in the order screening the Second Amended Complaint, dkt

48, and no such claim will be addressed in this Order.

not submit the evidence or argument that he would have presented if he had been given sufficient

notice. He further does not dispute that he was kept in segregation because of recent conduct

reports. "Because the right to procedural due process is 'absolute' in the sense that it does not

depend on the merits of a claimant's substantive assertions…the denial of due process [is]

actionable for nominal damages without proof of actual injury." Carey v. Piphus, 435 U.S. 247,

266 (1978). Therefore, Mr. Perry is entitled to nominal damages of one dollar. See Id.

5. Snyder

Mr. Perry argues that Mr. Snyder denied his due process rights by refusing to place him in

rehabilitative programs, which, if Mr. Perry had completed, may have resulted in his release from

segregation. But the Constitution does not provide a liberty interest in participation in rehabilitative

programs. Zimmerman v. Tribble, 226, F.3d 568, 571 (7th Cir. 2000); see also Higgason v. Farley,

83 F.3d 807, 809-810 (7th Cir. 1996) (the denial of access to educational programs does not

infringe on a protected liberty interest, even if denied the opportunity to earn good time credits);

Garza v. Miller, 688 F.2d 480, 485-86 (7th Cir. 1982) (there is no constitutional mandate that

prisons must provide rehabilitative programs). Without a protected liberty interest, no due process

claim is available. See Isby, 865 F.3d at 524. Mr. Snyder is therefore entitled to summary judgment

on Mr. Perry's due process claim.

B. Retaliation

Mr. Perry next contends that the defendants retaliated against him through their actions. To

prevail on a First Amendment retaliation claim, Mr. Perry 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; and (3) the protected activity []he engaged in was at least a motivating

factor for the retaliatory action." Archer v. Chisholm, 870 F.3d 603, 618 (7th Cir. 2017) (internal

citations omitted). The defendants do not dispute that Mr. Perry participated in protected First

Amendment activity through his grievances and lawsuits against prison officials. But the parties

do dispute the other elements of Mr. Perry's retaliation claims as discussed below.

1. Osburn

Mr. Osburn argues that Mr. Perry's retaliation claim against him fails the second element

of a retaliation claim because Mr. Perry's transfer to DWRH-D instead of DWRH-A was not a

deprivation likely to deter First Amendment activity and fails the third element of retaliation

because there is no evidence of retaliatory animus on his part. Mr. Perry argues that he did suffer

a deprivation likely to deter First Amendment activity because the conditions on DWRH-D are

more restrictive than DWRH-A and because the designation to DWRH-D limited the facilities to

which he could be transferred.

Even if the difference in conditions between DWRH-D and DWRH-A create a deprivation

likely to deter First Amendment activity, Mr. Perry cannot show that Mr. Osburn was motivated

by retaliatory animus. To make his retaliation claim, Mr. Perry must show that his "protected

activity was 'at least a motivating factor' for the retaliatory action." Thomas v. Anderson, 921 F.3d

971, 976 (7th Cir. 2018) (quoting Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015)). If the

plaintiff makes this prima facie case of retaliation, "[t]he burden then shifts to the defendants to

show that they would have taken the action despite the bad motive." Mays v. Springborn, 719 F.3d

631, 635 (7th Cir. 2013) (citation omitted). If the defendants meet their burden of establishing a

non-retaliatory motive for the allegedly retaliatory action, the plaintiff "then must persuade a fact-

finder that the defendants' proffered reasons were pretextual and that retaliatory animus was the

real reason" for the retaliatory action. Massey v. Johnson, 457 F.3d 711, 717 (7th Cir. 2006). This

means that Mr. Perry "must produce evidence upon which a rational finder of fact would infer that

[the defendants'] explanations were lies." Id. "[T]he ultimate question is whether events would

have transpired differently absent the retaliatory motive." Babcock v. White, 102 F.3d 267, 275

(7th Cir. 1996).

Here, Mr. Osburn argues that he had a legitimate non-retaliatory reason for approving

Mr. Perry's transfer as a transfer to DWRH-D – namely that Mr. Perry had been sentenced to

DWRH-D in two disciplinary actions. And Mr. Perry has not presented evidence that this non-

retaliatory reason is a pretext. He argues that two classification hearings showed that he was on

DWRH-A – on August 8, 2018, and August 15, 2018. Dkt. 101-1, p. 7-8. But those documents

state that his placement is "pending transfer." Id. There is no indication in those documents that

his transfer to DWRH-D based on his disciplinary convictions was inappropriate or had been set

aside.

In addition, to the extent that Mr. Perry also argues that Mr. Osburn retaliated against him

by delaying his transfer from NCCF to WVCF, he has identified no deprivation likely to deter First

Amendment activity in this action. Further, while he describes WVCF as having "the state's most

notorious lock-up unit...with boxcar like cells with no windows," he has not provided any evidence

regarding the difference in conditions at the two facilities to show such a deprivation. Cf.

Holleman, 951 F.3d at 881 (no First Amendment deprivation based on a prison transfer when

plaintiff did not provide enough evidence of the difference between the two prisons to allow the

Court to compare them).

Accordingly, it is undisputed that Mr. Osburn did not retaliate against Mr. Perry and

Mr. Osburn is entitled to summary judgment on Mr. Perry's retaliation claim.

2. Hendrix

Mr. Perry claims that Mr. Hendrix retaliated against him by denying his classification

appeal. Mr. Hendrix argues that he denied Mr. Perry's classification appeal after determining that

he was appropriately placed. It is undisputed that, on December 26, 2018, Mr. Perry appealed

Mr. Dugan's decision to keep him on DWRH-D. Dkt. 103-6, p. 2. In his appeal, Mr. Perry asserted

that, although he had been sentenced to nine-months in DWRH-D, he had actually been "reclassed"

to DWRH-A by staff at NCCF on that same day. Dkt. 103-6, p. 2; Dkt. 103-16, ¶ 2. After reviewing

Mr. Perry's classification appeal, Mr. Hendrix determined that Mr. Perry was appropriately placed

and denied his appeal. Dkt. 103-6, p. 1; dkt. 103-16, p. ¶¶ 4-6. Mr. Perry finished serving his time

on DWRH-D on or around March 6, 2019. Dkt. 103-18, p. ¶ 6. After Mr. Perry was released from

DWRH-D on March 6, 2019, he was reclassified to DWRH-A. Dkt. 103-8; dkt. 103-18, ¶ 9. While

Mr. Perry contends that he had been "reclassed" to DWRUH-A, it is undisputed that he had been

sanctioned with nine-months disciplinary segregation on two conduct reports. In other words,

Mr. Hendrix has presented a non-retaliatory reason for denying Mr. Perry's classification appeal.

Mr. Perry has presented no evidence that would lead a reasonable jury to conclude that

Mr. Hendrix's stated reason is a pretext. Mr. Hendrix is therefore entitled to summary judgment

on Mr. Perry's retaliation claim.

3. Staton

Ms. Staton argues that she had a non-retaliatory motive in denying Mr. Perry's second

classification appeal because she believed it to be duplicative of his previous appeal. In fact, that

is what her response to his appeal stated: "This appeal will not be reviewed again since it was

already reviewed." Dkt. 103-5. In addition, Mr. Perry was informed of his right, pursuant to IDOC

policy, to appeal subsequent classification decisions. Mr. Perry has presented no evidence that

would lead a trier of fact to conclude that this reason is pretext. Accordingly, Ms. Staton is entitled

to summary judgment on Mr. Perry's retaliation claim.

4. Dugan

Mr. Perry claims that Mr. Dugan's failure to provide him with 48-hours' notice of his annual

review, as required by IDOC policy was the result of retaliation against him. Mr. Dugan argues

that Mr. Perry did not suffer a deprivation that would deter a person of ordinary firmness from

participating in First Amendment activity and that retaliatory animus was not the motive for his

actions.

Here, the Court agrees that Mr. Perry has failed to explain how the lack of notice is the

kind of deprivation that would deter a person of ordinary firmness from engaging in protected

speech. Cf. Holleman, 951 F.3d at 880. Further, Mr. Perry has not shown that his protected speech

was "at least a motivating factor" in Mr. Dugan's failure to provide 48-hour notice of the

classification hearing. Id. The timing of the alleged deprivation in relation to the protected speech

is not enough to establish retaliatory animus. See McKinley v. Schoenbeck, 731 Fed. Appx. 511,

515 (7th Cir. 2018). Here, the parties appear to agree that Mr. Perry's filing of grievances and

lawsuits occurred before the classification hearing, but there is no other evidence connecting

Mr. Perry's litigation efforts with Mr. Dugan's actions.7

Accordingly, Mr. Dugan is entitled to summary judgment on Mr. Perry's retaliation claim.

7 Mr. Perry also argues that Mr. Dugan placed him in a "camera cell" out of retaliation, but

Mr. Perry did not state enough facts in his second amended complaint to allege such a claim and

he does not develop that claim in his voluminous briefing. There is therefore no evidence that

Mr. Perry's placement in a "camera cell" was the type of action that would deter a person of

ordinary firmness from participating in First Amendment activity or that such placement was the

result of retaliatory animus on Mr. Dugan's part.

5. Snyder

Finally, Mr. Perry claims that Mr. Snyder's denial of his request to participate in the ACT

program or the Thinking for a Change Program was done in retaliation for Mr. Perry's filing federal

lawsuits.

Mr. Snyder explains that the Thinking for a Change Program was not offered to offenders

in the SCU at WVCF. Dkt. 103-19, ¶ 4. Further, Mr. Snyder asserts that Mr. Perry was not selected

to participate in the ACT program because he did not meet the criteria for participating in the

program. Dkt. 103-14, dkt. 103-19, ¶ 6. To qualify for the ACT program, a prisoner "must have

been free of any findings of guilt for a Major (Class A or Class B) disciplinary code violation for

at least three (3) months." Dkt. 103-19, ¶ 6-7; dkt. 103-13. The class for the ACT program was

selected in February 2020. Mr. Perry argues that he had a conduct report on November 14, 2019,

and therefore could have been clear to participate in the ACT program by February 12, 2020.

Mr. Snyder points out, however, that Mr. Perry was found guilty of the conduct violation on

December 17, 2019, less than three months before the class for the ACT program was selected.

Mr. Snyder has thus provided non-retaliatory reasons for not including Mr. Perry in these

programs and Mr. Perry has failed to rebut it. Accordingly, Mr. Snyder is entitled to summary

judgment on Mr. Perry's retaliation claims.

C. Conditions

The Court also identified an Eighth Amendment conditions of confinement claim when it

screened Mr. Perry's second amended complaint.

In cases involving the conditions of confinement in a prison, two elements are

required to establish a violation of the Eighth Amendment's prohibition against

cruel and unusual punishment: first, an objective showing that the conditions are

sufficiently serious—i.e., that they deny the inmate the minimal civilized measure

of life's necessities, creating an excessive risk to the inmate's health and safety—

and second, a subjective showing of a defendant's culpable state of mind.

Isby, 856 F.3d at 521 (internal citations and quotation omitted).

"[P]rolonged confinement in administrative segregation may constitute a violation of

the Eighth Amendment ... depending on the duration and nature of the segregation and whether

there were feasible alternatives to that confinement." Id. citing (Rice ex rel. Rice v. Corr. Med.

Servs., 675 F.3d 650, 666 (7th Cir. 2012)).

At summary judgment, the only condition Mr. Perry alleges violates his Eighth

Amendment rights is the inability to participate in rehabilitative programs. Dkt. 101, p. 22;

dkt. 103-1, p. 33:8-20. Mr. Perry argues that denying his participation in the ACT and Thinking

for a Change programs violated his rights by preventing him from pursuing release from

administrative segregation. Mr. Perry again compares his situation to that of the plaintiff in Isby.

The Isby court recognized, "[o]bviously influencing whether prolonged segregation constitutes

cruel and unusual punishment is the existence of feasible alternatives." Isby, 856 F.3d at 523

(quoting Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987)). But the court found that

because the plaintiff, who had no major conduct violations for several years, had refused to

participate in prison programming, he could not succeed on his Eighth Amendment claim. Id. Here,

while Mr. Perry did not refuse to participate in the ACT program, as previously discussed, he had

not met the criteria for admission into that program. He has not shown that the requirement that he

not have any major conduct violations made the ACT program an unreasonable alternative to

segregation. He has therefore failed to show that his Eighth Amendment rights were violated by

the alleged lack of a feasible alternative and the defendants are entitled to summary judgment on

his Eighth Amendment claim.8

8 Mr. Perry also argues that the failure to provide him with a case plan prevented him from being

able to participate in rehabilitative programs. Dkt. 114, p. 15-16. But, other than the Thinking for

V. Motion for Sanctions

As a final matter, Mr. Perry seeks sanctions against the defendants alleging numerous

violations of Rule 11 of the Federal Rules of Civil Procedure in their cross-motion for summary

judgment.

Mr. Perry argues that the defendants misstated that Mr. Perry received nine months in

disciplinary segregation as a fact not in dispute, did not submit the entire classification policy in

support of the motion for summary judgment and misstated IDOC policy, left out evidence

regarding his placement on administrative segregation, misstated Mr. Perry's deposition testimony

regarding his claim that he was denied 48 hours' notice of his annual review, improperly presented

the ACT program criteria document in support of their motion, and misstated Mr. Perry's eligibility

for the program. Mr. Perry asks the Court to hold a sanctions hearing and consider finding the

defendants to be in default.

Mr. Perry is understood to argue that the defendants misstated the record throughout their

briefing. "A district court has inherent power to sanction a party who has willfully abused the

judicial process or otherwise conducted litigation in bad faith." Secrease v. Western & Southern

Life Ins. Co., 800 F.3d 397, 402 (7th Cir. 2015). Federal Rule of Civil Procedure 11(b) provides

that when an attorney signs a filing presented to the Court, the attorney certifies "that to the best

of the person's knowledge, information, and belief, formed after an inquiry reasonable under the

circumstances . . . (3) The . . . factual contentions have evidentiary support . . . ." Rule 11(c)

a Change and ACT programs, he does not identify a particular program he was denied. He further

states that he was not given credit for an anger management program he completed. Dkt. 114, p.

18. But he explains that this credit was denied because he had been verbally and physically

aggressive to mental health staff. Id. While he states he received no disciplinary sanction for this

incident, he does not state that disciplinary sanctions are required to deny completion of a program

or that he did not become aggressive. Moreover, he does not allege that any of the defendants in

this case were responsible for denying him this credit.

authorizes the Court to sanction attorneys who violate this rule. Further, 28 U.S.C. § 1927

authorizes the Court to sanction an attorney who "so multiplies the proceedings in any case

unreasonably and vexatiously." Sanctions are warranted under § 1927 "if the attorney has acted in

an objectively unreasonable manner by engaging in a serious and studied disregard for the orderly

process of justice . . . or where a claim [is] without a plausible legal or factual basis and lacking in

justification." Lightspeed Media Corp. v. Smith, 761 F.3d 669, 708 (7th Cir. 2014) (citation and

quotation marks omitted).

Much of Mr. Perry's request for sanctions is based on the same contentions that he made

in support of summary judgment – that the defendants violated IDOC policy in a number of ways,

including by placing him on DWRH-D when he should have been on DWRH-A, that he was denied

notice for his annual review, and that he was denied rehabilitative programming. The parties'

arguments regarding Mr. Perry's classification have been discussed at length above. The

defendants' arguments on these matters were not unreasonable or vexatious.

Mr. Perry also argues that the defendants misstated facts by not submitting the entire

classification policy and by not fully quoting his deposition testimony. But, because Mr. Perry

received the classification policy in discovery and was able to submit it, any failure by the

defendants to submit the entire policy does not evince a disregard for the orderly process of justice.

Similarly, because the defendants submitted Mr. Perry's entire deposition, the Court was able to

review it. The defendants are, however, encouraged to submit policies in their entirety and

reference all relevant deposition testimony in future filings in this Court.

Finally, Mr. Perry argues that the defendants failed to provide the ACT program document

in discovery. But for the same reasons Mr. Perry's motion to strike this document was denied, see

Part II, supra, the defendants are not subject to sanctions for this failure.

In short, Mr. Perry has not shown any behavior on the defendants’ part in this case that

supports the award of sanctions. His motion for sanctions is therefore denied.

VI. Conclusion

As discussed above, Mr. Perry's motion to strike, dkt. [113], and motion for sanctions,

dkt. [130], are denied.

Mr. Perry's motion for summary judgment, dkt. [100], is denied in part and granted in

part. His motion is granted as to his claim that Mr. Dugan did not provide him adequate notice

of his annual review. It is, in all other respects, denied.

Mr. Osburn's cross-motions for summary judgment, dkt. [109], is granted. The remaining

defendants’ cross-motion for summary judgment dkt. [103], is granted in part and denied in

part. The motions denied as to Mr. Perry's claim that Mr. Dugan did not provide him adequate

notice of his annual review. It is granted in all other respects.

The motion to supplement motion for summary judgment, dkt. [108], motion to supplement

and correct brief, dkt. [123], and motion to supplement replies, dkt. [133], are granted only to the

extent that the arguments in those filings were considered.

Judgment awarding Mr. Perry nominal damages of $1.00 on his due process claim against

Mr. Dugan and dismissing all remaining claims shall now issue.

IT IS SO ORDERED.

Date: 1/27/2021 lame Mas Shan

(Hon. Jane Magnus-Stinson, Chief Judge

United States District Court

Southern District of Indiana

22

Distribution:

JASON SETH PERRY

138925

WABASH VALLEY - CF

WVCF - Inmate Mail/Parcels

Electronic Service Participant – Court Only

Zachary Robert Griffin

INDIANA ATTORNEY GENERAL

zachary.griffin@atg.in.gov