Armour v. Atkins

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEMETRIUS ARMOUR, )

)

Plaintiff, )

)

vs. ) Case No. 3:20-CV-911-MAB

)

TAIJA ATKINS, DEE DEE )

BROOKHART, and RUSSELL GOINS, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on the Motion for Summary Judgment

filed by Defendants Taija Atkins, Dee Dee Brookhart, and Russell Goins (Doc. 81). For the

reasons set forth below, Defendants’ motion is GRANTED in part and DENIED in part.

BACKGROUND

Plaintiff Demetrius Armour brought this civil action pursuant to 42 U.S.C. § 1983

for alleged violations of his constitutional rights while incarcerated at Lawrence

Correctional Center (see Docs. 1, 13). Plaintiff alleges that he filed numerous grievances

prior to the events in question in this case about staff misconduct at Lawrence (Doc. 1 at

p. 6). Thereafter, in December 2019, Defendant Atkins filed an investigative report against

him which led to him being placed on investigative status and taken to segregation (Doc.

13 at p. 2, Doc. 81 at p. 3, Doc. 81-3 at p. 1). Following that investigative report, Plaintiff

wrote Grievance No. 1-20-007, complaining of his placement in segregation and the

inadequacy of the investigative report filed against him (Doc. 81-4 at pp. 7-8). Several

weeks later, on January 27, 2020, Defendant Atkins filed a second investigative report

against Plaintiff (Doc. 81-3 at p. 2). Both reports placed Plaintiff on investigative status

pending the outcome of an investigation, and other than citing to “DR 504,” neither

provides any further explanation as to the underlying reason for the investigations (Doc.

81-3). Plaintiff remained in segregation on investigative status until he was transferred

from Lawrence to Menard Correctional Center on March 4, 2020 (Doc. 81 at p. 4).1

Plaintiff filed suit against the instant Defendants, along with several others on

September 10, 2020 (Doc. 1). After conducting a preliminary review pursuant to 28 U.S.C.

§ 1915A, Plaintiff was permitted to proceed on two counts of retaliation (Doc. 13 at pp. 3-

6). Following Defendants’ motion for summary judgment based upon Plaintiff’s failure

to exhaust his administrative remedies, the claims Plaintiff was permitted to proceed

upon were narrowed to the following:

Count 4: First Amendment claim against Taija Atkins for writing two false

investigative disciplinary reports against Plaintiff in retaliation for filing

grievances and a lawsuit.

Count 5: First Amendment claim against Taija Atkins, Russell Goins, and

Dee Dee Brookhart for placing Plaintiff in segregation in retaliation for

filing grievances and a lawsuit.

(Doc. 52, pp. 12-13).

Defendants filed their motion for summary judgment in January 2024 (Doc. 81).

Plaintiff filed a response in opposition less than one month later (Doc. 86).

1 As the parties agree, at the time of the events in question, Lawrence was a medium security facility while

Menard was a maximum security facility (Doc. 81 at p. 6, Doc. 86 at p. 4).

SUMMARY JUDGMENT STANDARD

“Summary judgment is appropriate ‘if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to summary judgment as a matter of law.’” Spivey v.

Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010) (quoting Fed. R. Civ. P. 56(c)). The

non-movant receives the benefit of conflicting evidence and reasonable inferences but is

still required to produce evidence sufficient to establish the essential elements of his or

her claims. Jackson v. Sheriff of Winnebago County, Illinois, 74 F.4th 496, 500 (7th Cir. 2023).

In other words, if the nonmovant presents enough evidence such that a reasonable jury

could return a verdict in his or her favor, summary judgment is inappropriate. Id.; see also

Hansen v. Fincantieri Marine Group, LLC, 763 F.3d 832, 836 (7th Cir. 2014) (explaining that

the Court’s role in evaluating a motion for summary judgment is not to determine the

truth of the matter or choose between conflicting evidence and inferences).

Additionally, in light of Plaintiff’s pro se status, the Court liberally construes his

factual allegations and pleadings. See Smallwood v. Williams, 59 F.4th 306, 318 (7th Cir.

2023). Moreover, the Court may consider any evidence placed in the summary-judgment

record to help fill in any gaps. See Arroyo v. Volvo Group N.A., LLC, 805 F.3d 278, 285 (7th

Cir. 2015) (“Arroyo did include the emails and other materials in the record, so we are

free to consider them.”).

ANALYSIS

Defendants have moved for summary judgment on both of Plaintiff’s remaining

retaliation claims. In support, Defendants argue that: (1) Plaintiff failed to allege all of the

necessary elements to establish either retaliation claim (Doc. 81 at pp. 9-12); (2) Plaintiff’s

placement in segregation does not implicate a liberty interest (Id. at pp. 12-13); (3)

Defendants are entitled to qualified immunity (Id. at pp. 13-15); and (4) Plaintiff failed to

allege any physical injuries and is therefore not entitled to compensatory or punitive

damages (Id. at pp. 15-16). In response, Plaintiff contends that he alleged and

demonstrated all the necessary elements of his retaliation claims and Defendants’ legal

arguments lack merit (see generally Doc. 86).

In order to prevail on his retaliation claims against Defendants, Plaintiff needed to

both demonstrate Defendants’ personal involvement and establish a prima facie case of

retaliation by showing 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

Defendants’ decision to take the retaliatory action.” Whitfield v. Spiller, 76 F.4th 698, 707–

08 (7th Cir. 2023) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). “Once a

prima facie case is established, the burden shifts to the defendant to rebut the claim, that

the activity would have occurred regardless of the protected activity.” Manuel v. Nalley,

966 F.3d 678, 680 (7th Cir. 2020). If Defendants meet this burden, Plaintiff must then

demonstrate that “the proffered reason is pretextual or dishonest.” Id.

I. Count 4 – Defendant Atkin’s Allegedly Retaliatory Investigative Reports

Count 4 alleges that Defendant Atkins retaliated against Plaintiff by filing false

investigative reports in response to Plaintiff’s filing of grievances and a lawsuit (Doc. 52

at p. 12). Defendant Atkins avers that Plaintiff has not established a viable retaliation

claim against her for filing the investigative reports because he has offered no tangible

evidence to support his retaliation claims, other than his self-serving testimony (Doc. 81

at p. 11). Furthermore, while Defendants concede that Plaintiff was placed in segregation

and put on investigative status roughly four months after filing a different case against

the State of Illinois in the Court of Claims, they contend that, without more, the

chronology of events is insufficient to establish retaliation (Doc. 81 at pp. 9-12).

“To recover damages under § 1983, a plaintiff must establish that a defendant was

personally responsible for the deprivation of a constitutional right.” Whitfield, 76 F.4th at

706 (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). Here, Defendant Atkins

personal involvement in the allegedly retaliatory investigative reports is readily

apparent. Both investigative reports are signed by Defendant Atkins (Doc. 81-3) and

Defendant Atkins admitted she wrote the investigative reports (Doc. 86 at pp. 79-80). See

Brownlow v. Van Natta, 2 F. App’x 516, 518 (7th Cir. 2001) (“We have long held that liability

under § 1983 must be predicated upon personal responsibility.”). Thus, the question is

whether Plaintiff has established a prima facie case of retaliation by providing sufficient

evidence of each element. See Whitfield, 76 F.4th at 707-08.

As to the first element, Plaintiff’s filing of a lawsuit and writing grievances are

unquestionably protected activities that support a First Amendment retaliation claim. See

Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018) (“Under the first element, the filing of

a prison grievance is a constitutionally protected activity supporting a First Amendment

retaliation claim[.]”); Gray v. Hinsley, No. 04-CV-118-JPG, 2008 WL 2005029, at *7 (S.D. Ill.

May 8, 2008) (“There is no doubt that filing a lawsuit qualifies as constitutionally

protected speech[.]”). Defendants even concede as much in their motion (see Doc. 81 at p.

9).

Plaintiff has also presented sufficient evidence to create a triable issue of fact as to

the second element. Namely, Plaintiff has provided evidence demonstrating that his

placement in segregation was, at least in part, a result of the allegedly retaliatory

investigative reports filed against him. See Whitfield v, 76 F.4th at 708 (“As we just noted,

Whitfield’s first six days of disciplinary segregation qualify as a serious enough

deprivation to deter the exercise of First Amendment rights.”). While this deprivation is

also the basis for Plaintiff’s retaliation claim in Count 5, this deprivation is sufficient to

state a viable claim under Count 4 because Plaintiff has provided evidence tending to

demonstrate that he was placed in segregation pending the outcome of the investigative

tickets filed against him (see, e.g., Doc. 81-2 at transcript p. 19). Furthermore, Grievance

No. 1-20-007 includes a response from Plaintiff’s counselor which states, “Per Warden

Brookhart, committed persons placed in confinement pending completion of an

investigation shall be provided the same conditions and services as those required for the

segregation unit.” (Doc. 81-4, at p. 7). In other words, Plaintiff has created a triable issue

of fact as to whether he suffered a deprivation that would deter First Amendment activity

based upon the allegedly fraudulent investigative reports.

Finally, Defendant Atkins contends that Plaintiff failed to demonstrate that his

speech/protected activity was at least a motivating factor in the adverse actions allegedly

taken against him, or that Defendant Atkins acted with a retaliatory motive, which caused

the injury Plaintiff suffered (Doc. 81 at pp. 7-12). Under either standard,2 Defendant

Atkin’s main contention is that Plaintiff failed to connect the dots between his protected

activities and the alleged retaliation he later suffered (Id. at pp. 11-12).

Having reviewed the evidence provided by the parties, the Court is not persuaded

by Defendant Atkins’ arguments. Several pieces of evidence support Plaintiff’s

contention that Defendant Atkins retaliated against Plaintiff for engaging in protected

activities. First, the alleged retaliation occurred roughly four months after Plaintiff filed

his other lawsuit (Doc. 81 at p. 9). See Morris v. Nelson, No. 17-CV-05940, 2020 WL 1330382,

at *7 (N.D. Ill. Mar. 23, 2020) (“A plaintiff may show that his protected speech was a

motivating factor for alleged retaliatory conduct by presenting either direct or

circumstantial evidence, including evidence of suspicious timing.”).3 While this length of

time may not provide much support for Plaintiff, this is not the only “suspicious timing”

present in this case. Viewing the evidence in the light most favorable to Plaintiff,

Plaintiff’s Grievance No. 1-20-007, dated December 30, 2019, complains of Defendant

2 Defendants appear to argue that the Supreme Court’s opinion in Nieves v. Bartlett raised the standard

required to satisfy this element, by now requiring the retaliatory motive to have caused the injury (Doc. 81

at p. 7). See 587 U.S. 391 (2019). However, just last year the Seventh Circuit reiterated the standard for

establishing a prima facie case of retaliation in violation of the First Amendment in a prison setting in

Whitfield. See 76 F.4th at 707-08. In Whitfield, the Seventh Circuit stated that 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 Defendants’ decision to take the retaliatory action.” Id. (internal quotation marks

omitted and emphasis added). Accordingly, the Court believes that it is still appropriate to analyze this

element by examining whether Plaintiff’s filing of grievances and a lawsuit was at least a motivating factor

in Defendant Atkin’s alleged decision to retaliate against Plaintiff by filing false investigative reports.

3 Defendants correctly point out that a sequence of events alone is insufficient to reasonably infer retaliation.

See Williams v. Snyder, 367 F. App’x 679, 682 (7th Cir. 2010) (“But in the prison context, suspicious timing is

not enough to overcome uncontradicted evidence of other, non-retaliatory motives-in this case, the

correctional officers’ unrebutted testimony that the prison disciplined Williams for disobeying orders to

remove his dreadlocks under the grooming policy.”). Here, however, Plaintiff has provided additional

evidence to support his contentions and is not simply relying on suspicious timing alone.

Atkin’s filing an investigative report against him without containing all necessary

information such as the underlying reason for the filing of the report (Doc. 81-4 at pp. 7-

8).4 Pertinently, Defendant Atkins filed a second investigative report against Plaintiff just

a few weeks after Plaintiff filed this grievance (Doc. 81-3 at p. 2). In other words, the

second report was filed in close proximity to Plaintiff’s protected activity of filing a

grievance complaining of Defendant Atkin’s first report and investigation, thereby

demonstrating another retaliatory motive for her filing of the second report.

Additionally, Plaintiff’s testimony provides some support for his contention that

Defendant Atkins retaliated against him for filing a lawsuit and numerous grievances

against prison staff (Doc. 81-2 at transcript pp. 25-35).5 See Whitlock v. Brown, 596 F.3d 406,

411 (7th Cir. 2010) (“’Self-serving’ deposition testimony may satisfy a party’s evidentiary

burden on summary judgment” when the statement is based upon personal knowledge

and grounded in observation).

While the evidence discussed above provides some support for the claim that

Plaintiff’s grievances and lawsuit were a motivating factor, the contents of the

investigative reports and Defendants’ insufficient explanations for why the investigative

4 Although the grievance does not mention Defendant Atkins by name, it is clear Plaintiff’s grievance was

challenging the report she wrote (see Doc. 81-4 at pp. 7-8).

5 Defendants also point out that conclusory statements in a deposition do not create a triable issue of fact

(Doc. 81 at p. 11). See also Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003) (“Although a nonmoving party’s

own deposition may constitute affirmative evidence to defeat summary judgment, conclusory statements

in the deposition do not create an issue of fact.”). However, deposition testimony may be sufficient to satisfy

a party’s evidentiary burden on summary judgment depending upon whether “the statement is based on

personal knowledge and whether it is grounded in observation as opposed to mere speculation.” Whitlock

v. Brown, 596 F.3d 406, 411 (7th Cir. 2010). Here, some of Plaintiff’s deposition testimony may be conclusory,

but not all of it is. For example, Plaintiff testified that to this day, Defendants have not explained why they

were investigating Plaintiff (Doc. 81-2 at transcript p. 35). As this statement is grounded in Plaintiff’s own

knowledge of what he has been told and observed, this testimony provides additional evidentiary support.

reports were being written against Plaintiff is conspicuous. Having reviewed both

reports, the Court is left at a loss as to why either investigative report was filed against

Plaintiff. While both reports state Plaintiff is being investigated to determine whether he

should be cited under DR 504, neither provides any explanation as to the underlying

events for which Plaintiff is to be cited for or what a violation of DR 504 entails (Doc. 81-

3). And crucially, in Defendants Atkins’ and Brookhart’s responses to Plaintiff’s requests

for admissions and in their motion for summary judgment, Defendants failed to provide

any actual explanation as to why the two investigative reports were lodged against

Plaintiff (see Doc. 86 at pp. 72-80; Doc. 81 at p. 10). Likewise, neither Defendant could

determine whether an investigation ever occurred in response to the investigative reports

(Id.). This failure to provide any explanation other than citing to DR 504 is telling. If there

was a proper reason why Plaintiff was being subjected to an investigation under DR 504,

the Court is baffled as to why Defendants would not state what that reason was with any

particularity. Because Plaintiff has sufficiently demonstrated and argued that Defendant

Atkins failed to provide a justification for filing the two investigative reports, the Court

believes this provides evidence which a jury could reasonably rely upon to infer that

Defendant Atkins acted with a retaliatory motive. See Whitfield, 76 F.4th at 712 (“Spiller

can insist that she bore no ill will towards Whitfield, but that does not answer the question

whether she can identify a permissible justification for her action.”).6

6 In the somewhat similar context of retaliatory prosecution cases, the Supreme Court has explained that a

plaintiff must plead and prove the absence of probable cause for the underlying criminal charge. See Nieves

v. Bartlett, 587 U.S. 391, 400-01 (2019). While such a requirement is not applicable to this case as it does not

involve allegations of retaliatory prosecution, the Court finds that Plaintiff has similarly demonstrated a

lack of justification for the two investigative reports filed in this action. For instance, in Defendants’

Defendant Atkins argues Plaintiff has not identified any reason why she would

seek to retaliate against him. Defendant Atkins further notes that Plaintiff’s prior lawsuit

didn’t involve her and it does not appear Plaintiff’s grievances prior to December 2019

were complaining about her actions. These contentions, however, will ultimately have to

be weighed by a jury as the Court does not believe summary judgment is appropriate on

Count 4. This is because Defendant Atkins is unable to explain why she filed not one, but

two, investigative reports against Plaintiff, which have no records of them ever being

followed up on. Her inability to adequately explain the reasoning for filing two

investigative reports constitutes evidence supporting Plaintiff’s assertion that the

investigative reports were retaliatory and not written for a legitimate reason.

Additionally, as discussed above, Plaintiff filed a grievance directed at Defendant Atkins’

first report, providing an additional reason why a reasonable trier of fact might infer that

Defendant Atkins sought to retaliate against Plaintiff.

Accordingly, summary judgment is not appropriate as to Count 4. Plaintiff has

demonstrated a prima facie case of retaliation in violation of the first amendment and by

failing to provide an explanation for the investigative tickets, Defendant Atkins has failed

to rebut Plaintiff’s claim by demonstrating that the complained of activity would have

occurred anyways.

responses to Plaintiff’s requests for admissions and in their motion for summary judgment, Defendants did

not provide any factual details or allegations as to why Plaintiff was being investigated under DR 504 and

issued two reports/tickets (see Doc. 86 at pp. 72-80; Doc. 81 at p. 10). Likewise, both Defendants could not

determine whether an investigation even occurred in response to the investigative reports (Id.). Thus, the

absence of any evidence demonstrating an adequate explanation for the first investigation, let alone the

second, constitutes evidence that could be relied on to determine that Defendant Atkins acted with a

retaliatory motive.

II. Count 5 – Defendants’ Retaliatory Placement of Plaintiff in Segregation

Count 5 alleges that Defendants placed Plaintiff in segregation for a prolonged

period of time in retaliation for his filing of grievances and a lawsuit. Defendants Atkins

and Brookhart argue that Plaintiff has not established a viable retaliation claim under this

Count because he has failed to offer sufficient evidence to support this claim.

As an initial matter, Plaintiff has conceded that he has not stated a viable claim for

retaliation against Defendant Goins. Pertinently, Plaintiff’s response brief indicates that

Plaintiff desires to voluntarily dismiss Defendant Goins because discovery did not lead

to any affirmative links demonstrating Defendant Goins involvement in the alleged

violations of Plaintiff’s constitutional rights (Doc. 86 at p. 8). Accordingly, the motion for

summary judgment on Count 5 as to Defendant Goins is GRANTED and Defendant

Goins is dismissed with prejudice.7

Before analyzing the elements of this retaliation claim, the Court first considers

whether the remaining Defendants had sufficient personal involvement in Plaintiff’s

placement in segregation. As discussed above, Defendant Atkins wrote both

investigative reports against Plaintiff which resulted in him being placed in segregation

(Doc. 81-3). As a result, there is sufficient evidence to demonstrate Defendant Atkin’s

personal involvement under this Count as well.

The Court next considers whether Plaintiff established that Defendant Brookhart

was also personally involved in the retaliatory conduct alleged in Count 5. Here, Plaintiff

7 While Plaintiff did not indicate whether his voluntary dismissal of Goins was with or without prejudice,

the Court believes that the only fair result at this stage of the case is a dismissal with prejudice.

has not met his burden of demonstrating Defendant Brookhart’s personal knowledge and

involvement in his allegedly retaliatory placement in segregation. At most, Plaintiff has

provided evidence demonstrating that Defendant Brookhart reviewed his emergency

grievance dated December 30, 2019 (Doc. 81-4 at pp. 7-8), and also signed off on his

annual reclassification (Doc. 81-7).8 However, even assuming Defendant Brookhart was

aware of Plaintiff’s placement in segregation, Plaintiff has not provided any evidence

tending to demonstrate that Defendant Brookhart was personally involved in Plaintiff’s

placement in segregation. During his deposition testimony, Plaintiff was asked whether

he had any evidence of Defendant Brookhart’s involvement, to which he responded, “I

don’t have any.” (Doc. 81-2 at transcript p. 34). Having thoroughly reviewed the record,

the Court likewise concludes that there is no evidence that Defendant Brookhart was

involved in Plaintiff’s placement in segregation, other than one self-serving assertion by

Plaintiff at his deposition.9 Without evidence of such, the Court concludes that Defendant

Brookhart lacked the requisite personal involvement in the events at issue in this case.

See Whitfield, 76 F.4th at 706 (Finding the plaintiff failed to present sufficient evidence of

Warden Gaetz’s “personal involvement in the events at issue.”). Accordingly, because

Plaintiff has not presented any evidence demonstrating Defendant Brookhart’s personal

8 Significantly, this case is no longer proceeding on any claim related to Plaintiff’s allegations that his

transfer from Lawrence to Menard was retaliatory (see Doc. 52 at pp. 12-13). Consequently, the Court need

not further analyze whether Plaintiff’s annual reclassification considered Plaintiff’s violations over an

inappropriate time period or was in some other way retaliatory, and any arguments on this point are moot.

9 Specifically, Plaintiff stated “I believe [Defendant Atkins] was told by her superiors to write the

investigation ticket.” (Doc. 81-2 at transcript p. 34). But this conclusory statement is not based on personal

knowledge. Rather, its Plaintiff’s pure speculation and cannot be used to provide any evidentiary support

of Defendant Brookhart’s personal involvement. See Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003)

(“Although a nonmoving party’s own deposition may constitute affirmative evidence to defeat summary

judgment, conclusory statements in the deposition do not create an issue of fact.”).

involvement in the allegedly retaliatory act of placing and/or leaving Plaintiff in

segregation, summary judgment in Defendant Brookhart’s favor is appropriate. See also

Hall-Bey v. Hanks, 93 F. App’x 977, 981 (7th Cir. 2004) (“Hall–Bey’s only other support for

his claim is his own speculation that the defendants placed him in administrative

segregation because of his accusation of racism, but conclusory statements cannot sustain

a non-movant’s burden on summary judgment[.]”).

Conversely, for the same reasons discussed in Court 4, the Court finds that

Plaintiff’s claim in Count 5 against Defendant Atkins survives summary judgment. As

outlined above, Defendant Atkins was personally involved in the allegedly retaliatory

actions that resulted in Plaintiff’s placement in segregation. Furthermore: (1) Defendant

Atkins conceded that Plaintiff was engaged in the protected activities of filing a lawsuit

and writing grievances; (2) Plaintiff’s prolonged placement in segregation was a

deprivation that would likely deter First Amendment activity in the future; and (3)

Plaintiff has presented some evidence tending to demonstrate that his filing of a lawsuit

and grievances were a motivating factor in Defendant Atkins’ actions, along with

presenting several pieces of evidence indicating that Defendant Atkins could not provide

a sufficient, alternative explanation for why Plaintiff was being issued an investigative

ticket and placed in segregation. Consequently, Defendant Atkins’ motion as to Count 5

is denied.

III. Qualified Immunity and Damages

Finally, Defendants raise several other arguments as to why they believe they

should be granted summary judgment.10 For one, Defendants argue they are entitled to

qualified immunity because their conduct does not violate clearly established statutory

or constitutional rights (Doc. 81 at p. 13). In addition, Defendants argue that Plaintiff is

not entitled to compensatory or punitive damages because he has not suffered any

physical injuries. For the reasons discussed below, the Court is not persuaded by either

contention and believes Plaintiff’s claims against Defendant Atkins in Counts 4 and 5

must go to a jury.

Defendants argue that they are entitled to qualified immunity because the law

doesn’t prevent them from placing Plaintiff in segregation for 68 days (Doc. 81 at pp. 13-

14). The Court is not persuaded by this argument. In Babcock, the Seventh Circuit dealt

with a similar qualified immunity challenge wherein the plaintiff was placed in a

segregation unit, allegedly in relation for filing grievances and lawsuits against prison

officials. Babcock v. White, 102 F.3d 267, 275-76 (7th Cir. 1996). The defendants argued they

were entitled to qualified immunity because government officials performing

discretionary functions are entitled to qualified immunity from liability when their

conduct doesn’t violate clearly established statutory or constitutional rights of which a

10 Additionally, Defendants devoted one section of their motion to arguing that Plaintiff’s placement in

segregation does not implicate a liberty interest (Doc. 81 at pp. 12-13). This challenge misses the mark.

Plaintiff attempted to raise a due process claim related to the investigatory reports and his placement in

segregation but that claim was dismissed during the Court’s preliminary review (see Doc. 13). This means

Plaintiff is no longer proceeding on a due process claim and Defendants’ arguments on this point are

inapplicable. See Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (finding a retaliation claim may survive

summary judgment even when there is no other independent constitutional interest).

reasonable person would have known. Id. The Seventh Circuit rejected this argument,

holding:

The federal courts have long recognized a prisoner’s right to seek

administrative or judicial remedy of conditions of confinement, see Lewis v.

Casey, 518U.S. 343, ––––, 116 S. Ct. 2174, 2179, 135 L.Ed.2d 606 (1996), as well

as the right to be free from retaliation for exercising this right. See Matzker

v. Herr, 748 F.2d 1142, 1150-51 (7th Cir. 1984); Buise v. Hudkins, 584 F.2d 223,

229 (7th Cir. 1978); see also Penrod v. Zavaras, 94 F.3d 1399, 1404-05 (10th Cir.

1996) (“[Q]ualified immunity ... does not apply in this case because the

jurisprudence prohibiting retaliatory acts against prisoners for reporting

grievances is well-established.”). In the instant case, moreover, qualified

immunity cannot be premised on the rationale that a particular form of

retaliation has yet to be condemned by the courts. As discussed above,

retaliation against constitutionally protected conduct is actionable

regardless of whether the defendant’s actions independently violate the

constitution. A prison official in McDaniel’s position therefore would have

been on notice that any retaliation, whatever its shape, could give rise to

liability. Harlow’s standard of objective reasonableness does not require that

“the very action in question has previously been held unlawful,” but only

that “in light of pre-existing law the unlawfulness must be apparent.”

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L.Ed.2d 523

(1987). The qualified immunity defense simply does not dispose of

Babcock’s retaliation claim.

Id. at 276. Similarly, here qualified immunity is inapplicable, because it is readily apparent

that filing allegedly fraudulent investigative reports, which result in an inmate’s

prolonged stay in segregation, is unconstitutional. Id.

Defendants also argue that Plaintiff has not alleged any physical injuries and

therefore, is not entitled to compensatory or punitive damages (Doc. 81 at pp. 15-16). See

also Pearson v. Welborn, 471 F.3d 732, 744 (7th Cir. 2006) (“We agree with the district court

that this unelaborated claim [of weight loss] is insufficient to support Pearson’s assertion

that he suffered ‘physical injury’ as that term is commonly understood.”). In response,

Plaintiff contends that his placement in segregation was a physical injury in itself and

also that he lost up to fifteen pounds of weight while placed in segregation (Doc. 86 at

pp. 10-11).

From the outset, the Court notes “it is questionable whether the availability of a

certain type of damages is an appropriate subject for summary judgment, as the prayer

for relief and type of damages sought are not part of the claim or defenses for which

summary judgment may be sought.” Mason v. Miles, No. 20-CV-0911, 2023 WL 2631548,

at *13 (N.D. Ill. Mar. 24, 2023). In any event, the Court will briefly address this contention

now. Here, Plaintiff has testified to losing ten to fifteen pounds due to his placement in

segregation (Doc. 81-2 at transcript pp. 39-40). In Santiago v. Rabideau, the court faced a

similar question of whether weight loss due to an inmate’s stay at a cell-house could allow

for compensatory damages. No. 15 C 1856, 2019 WL 1747361, at *14 (N.D. Ill. Apr. 18,

2019). The court began by distinguishing Pearson, explaining that Pearson found the

inmate’s weight loss was not compensable under the PLRA because the only identifiable

cause of that weight loss was the inmate’s depression and anxiety. Id. In contrast, in

Santiago, the court found there was no evidence the plaintiff’s weight loss was due to

emotional distress. Id. Instead, the court concluded that a reasonable jury could find the

weight loss was due to other causes, such as inedible food. Id. Consequently, the court

concluded that “Defendants have not carried their burden on a motion for summary

judgment to show that Santiago’s weight loss cannot be compensated as a matter of law.”

Id.; see also Mason v. Miles, No. 20-CV-0911, 2023 WL 2631548, at *13 (N.D. Ill. Mar. 24,

2023) (following Santiago and also noting that, should the case proceed to trial, this issue

may be raised through a motion in limine.).

As in Santiago, Plaintiff has alleged that he suffered the physical injury of weight

loss due to his confinement in segregation. Moreover, neither Plaintiff’s response in

opposition nor his Complaint indicate that Plaintiff’s weight loss was due to emotional

distress (see Doc. 1 at p. 18; Doc. 86 at p. 10). Instead, in both documents, Plaintiff appears

to claim that his placement in segregation caused both his physical injury of weight loss

and his emotional distress. Furthermore, Plaintiff testified during his deposition that the

meals served in segregation are smaller and less nutritional, thus providing an

explanation for his weight loss that is due to his confinement in segregation and does not

involve emotional distress (Doc. 81-2 at transcript p. 39). “Certainly, [Plaintiff] will need

to substantiate his allegation of weight loss in order to obtain compensatory damages. At

this stage, however, the Court cannot decide the matter without making a credibility

determination, which precludes entry of summary judgment on this issue.” Santiago, 2019

WL 1747361 at *15; see also Gray v. Hardy, 826 F.3d 1000, 1007 (7th Cir. 2016) (Finding a

pro se litigant’s allegations of asthma and breakouts due to environmental conditions

was sufficient, and the inmate’s “lack of an affidavit from a medical expert does not doom

his pro se claim at [the summary judgment] stage.”); Pippin v. Frank, No. 04-C-582-C, 2005

WL 756155, at *1 (W.D. Wis. Mar. 30, 2005) (“Although the 1996 Prison Litigation Reform

Act precludes petitioner’s claim for damages based on ‘mental or emotional injury

suffered while in custody without a prior showing of physical injury,’ 42 U.S.C. §

1997e(e), it is possible that petitioner Pippin will be able to prove at some later stage of

these proceedings that he lost wages or was ‘falsely confined’ in segregation status as a

result of their alleged unconstitutional acts.”). Accordingly, at this stage of the case (the

summary judgment stage), Defendant Atkins has not carried her burden to show that

Plaintiff cannot be compensated, as a matter of law.

For these reasons, the Court declines to grant summary judgment to Defendant

Atkins based upon Defendants’ arguments of qualified immunity or physical injury.

CONCLUSION

Defendants’ motion for summary judgment is GRANTED in part and DENIED in

part (Doc. 81). Specifically, it is GRANTED as to Defendants Goins and Brookhart and

DENIED as to Defendant Atkins. Defendants Goins and Brookhart are hereby dismissed

with prejudice.

This matter will proceed to trial on Plaintiff’s retaliation claims against Defendant

Atkins under Counts 4 and 5. A status conference will be set by separate order at which

time the Court intends to discuss whether this case should be scheduled for an additional

settlement conference or mediation as well as trial scheduling.

IT IS SO ORDERED.

DATED: September 27, 2024

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge