Walker v. Kink

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES E. WALKER, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-617-DWD

)

KEVIN KINK, et al., )

)

Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Defendants Trey Brashear and Ethan McQueen have filed a Motion for Summary

Judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 106). For the reasons

delineated below, the Court GRANTS the Motion for Summary Judgment.

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff Kevin Kink (“Kink”), an inmate in the custody of the Illinois Department

of Corrections, brings this pro se lawsuit pursuant to 42 U.S.C. § 1983 for deprivations of

his constitutional rights. On November 18, 2021, the Court conducted a merit review of

Kink’s Third Amended Complaint and found that Kink had adequately alleged the

following claims:

Count 3: First Amendment claim against Brashear and McQueen for

selectively shaking down Plaintiff’s cell in May 2018 in

retaliation for filing grievances.

Count 6: Loy and John Doe No. 1 delayed and mishandled Walker’s

grievance in retaliation for Walker using the grievance

process.

On January 11, 2023, the Court dismissed Count 6, along with the defendants

named in that Count. (Doc. 91). Accordingly, Kink’s First Amendment claim against

Brashear and McQueen is the only remaining claim.

II. APPLICABLE LAW

“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)). “A

genuine dispute of material fact exists if ‘the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.’ ” Dunn v. Menard, Inc., 880 F.3d 899, 905 (7th

Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Substantive

law determines which facts are considered material. See Jaranowski v. Indiana Harbor Belt

R.R. Co., 72 F.4th 744, 749 (7th Cir. 2023). Moreover, although a non-movant receives the

benefit of conflicting evidence and reasonable inferences, he or she 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 responding to a summary judgment motion, the nonmoving party may not

simply rest upon the allegations contained in the pleadings but must present specific facts

to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Liberty

Lobby, 477 U.S. at 256-57; Modrowski, 712 F.3d at 1168. A genuine issue of material fact is

not demonstrated by the mere existence of “some alleged factual dispute between the

parties,” Liberty Lobby, 477 U.S. at 247, or by “some metaphysical doubt as to the material

facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a

genuine issue of material fact exists only if “a fair-minded jury could return a verdict for

the [nonmoving party] on the evidence presented.” Liberty Lobby, 477 U.S. at 252.

III. UNDISPUTED MATERIAL FACTS1

During the events that are the subject of this case, Plaintiff was housed at Lawrence

Correctional Center. (Docs. 106 and 111). Plaintiff had a history of filing grievances,

including a grievance he filed on March 13, 2018. (Doc. 111, Exhibit B). Brashear and

McQueen were employed by IDOC during the relevant period. (Docs. 106 and 111).

McQueen conducted a search of Plaintiff’s cell on May 28, 2018 (“May 28, 2018

Shakedown”). (Docs. 106, 111, and 106-1). Brashear witnessed the search. (Doc. 106-1).

McQueen wrote a disciplinary report following the May 28, 2018 Shakedown. (Doc. 106-

1). McQueen confiscated one pair of “damaged/altered Conair trimmers,” and Plaintiff

was charged with Offense No. 202 (damage or misuse of property, a mattress) and

Offense No. 308 (contraband/unauthorized property, a pair of trimmers). (Doc. 106-2).

Plaintiff pled not guilty to damage or misuse of property. (Docs. 106, 111, and 106-2).

Plaintiff pled guilty to having contraband/unauthorized property, stating “the trimmers

are not really altered and they are his.” (Id.). Plaintiff was found not guilty as to Offense

No. 202 (damage or misuse of property) and guilty as to Offense No. 308

(contraband/unauthorized property). (Id.). Plaintiff was given one-month of commissary

restriction. (Id.).

1 Unless otherwise indicated, the following facts are undisputed.

In Plaintiff’s experience, the assigned wing officer conducts shakedowns. (Doc.

111, pg. 14). Prior to the May 28, 2018 Shakedown, Brashear was assigned to Plaintiff’s

wing and was the individual who conducted searches of Plaintiff’s cell. (Id.). An internal

affairs officer told Plaintiff McQueen was not assigned to his wing on May 28, 2018. When

McQueen searched Plaintiff’s cell, he told Plaintiff he was conducting a 30-day

shakedown. McQueen’s disciplinary ticket, adjustment committee report, and Plaintiff’s

grievance pertaining to the May 28, 2018 Shakedown describe the search as a 30-day

search. (Docs. 61, pg. 13, 106-1, and 106-2).

Pursuant to the Illinois Administrative Code, searches of a person in custody’s

housing may occur at any time. 20 Ill. Admin. Code. § 501.220(b)(1) (“All committed

persons and their clothing, property, housing and work assignments are subject to search

at any time.”). In addition, Illinois Department of Corrections Administrative Directive

No. 05.01.111 provides that every cell must be searched at least every 60 days. (Doc. 106-

3).2

2 In their statement of undisputed material facts, Defendants indicate that the “May 28, 2018 search was a 30-day cell

shakedown.” The underlying disciplinary documents and Plaintiff’s grievance regarding the shakedown support this

contention. (Docs. 106-1; 106-2; and 61, pg. 13). Plaintiff states that he “contest[s]” this fact on the grounds that,

pursuant to Illinois Department of Corrections Administrative Directive No. 05.01.111 the search “should have been

done at 60 days not 30.” Plaintiff also argues that conducting a 30-day search somehow conflicts with this IDOC

directive and/or that the referenced IDOC directive conflicts with 20 Ill. Admin. Code § 501.220(b)(1), which allows

searches at any time. Plaintiff misconstrues Administrative Directive No. 05.01.111. That Directive provides that a

cell must be searched at least every 60 days, not that it may only be searched every 60 days. Plaintiff’s

misunderstanding of this administrative directive and/or his opinions regarding applicable regulations do not establish

a genuine dispute as to the claim that the May 28, 2018 Shakedown was a 30-day shakedown.

IV. ANALYSIS

Plaintiff alleges that McQueen retaliated against him for writing grievances by

searching his cell on May 28, 2018, and that Brashear is subject to liability because he was

present during the shakedown and/or because he is a supervisor.

As previously noted, to prevail on his First Amendment Claim, Plaintiff must

show that “(1) he engaged in an activity protected by the First Amendment; (2) he

suffered a deprivation likely to deter such activity; and (3) the First Amendment activity

was at least a motivating factor in the decision to impose the deprivation.” Hawkins v.

Mitchell, 756 F.3d 983, 996 (7th Cir. 2014). If Plaintiff satisfies these elements, the burden

shifts to Defendants to rebut the causal inference with evidence showing that they would

have taken the same action without any retaliatory motive. See Mays v. Springborn, 575

F.3d 643, 650 (7th Cir. 2009); Hasan v. U.S. Dep't of Labor, 400 F.3d 1001, 1005–06 (7th Cir.

2005). Defendants cannot be found liable if they would have conducted the shakedown

no matter what. Antoine v. Ramos, 497 F. App'x 631, 633-34 (7th Cir. 2012).

If Defendants provide legitimate and non-retaliatory reasons for their actions, then

the burden shifts back to Plaintiff to demonstrate that the proffered reason was pretextual

and that the real reason was retaliatory animus. See, e.g., Thayer v. Chiczewski, 705 F.3d

237, 252 (7th Cir. 2012); Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir. 2011). “At the

summary judgment stage, this means a plaintiff must produce evidence upon which a

rational finder of fact could infer that the defendant's proffered reason is a lie.” Zellner,

639 F.3d at 379. “If retaliation is not the but-for-cause of the [bad action], ‘the claim fails

for lack of causal connection between unconstitutional motive and resulting harm,

despite proof of some retaliatory animus in the official’s mind.’” Thayer, 705 F.3d at 252.

(quoting Hartman v. Moore, 547 U.S. 250, 260, 126 S. Ct. 1695, 1695 (2006)). “It may be

dishonorable to act with an unconstitutional motive ... but action colored by some degree

of bad motive does not amount to a constitutional tort if that action would have been

taken anyway.” Id.

For purposes of summary judgment, Defendants concede that filing grievances is

a protected activity. Thus, the first element is met. The Court notes that Plaintiff’s

responsive pleading references his “history” of filing grievances, as well as multiple

specific grievances. Except for a grievance filed on March 13, 2018 (“March 13, 2018

Grievance”) (Doc. 111, Exhibit B), the other specified grievances occurred after the

shakedown at issue in this case. In evaluating Plaintiff’s retaliation claim, the Court

considers only protected activity that occurred prior to the shakedown, namely Plaintiff’s

alleged “history” of filing grievances prior to the May 28, 2018 Shakedown and the

grievance submitted on March 13, 2018.

The Court also finds sufficient evidence that Plaintiff suffered a deprivation likely

to deter First Amendment activity in the future—a cell shakedown, denial of access to his

personal property, and punishment with a loss of commissary privileges. See Antoine, 497

F. App'x at 633 (considering a shakedown and resultant disciplinary charges as

deprivations for purposes of a retaliation claim). A sham disciplinary action —or even a

disciplinary action that would have been proper when taken for a different reason—

violates an inmate's rights if the discipline is imposed in retaliation for the exercise of a

constitutional right. See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir.2012); Bridges v.

Gilbert, 557 F.3d 541, 552 (7th Cir.2009); Lekas v. Briley, 405 F.3d 602, 614 (7th Cir. 2005).

See also Martin v. Nicholson, 2019 WL 6338062 at * 2 (S.D. Ind. 2019) (“shakedowns may

occur regularly, but it seems safe to assume they are not welcome by inmates, and thus a

reasonable jury could assume a retaliatory shakedown would dissuade an inmate of

ordinary firmness from engaging in protected activity.”).

Plaintiff has not shown, however, that retaliatory animus on the part of either

Defendant motivated the May 28, 2018 Shakedown or the subsequent disciplinary action.

Plaintiff – at most – asserts that the timing of events, coupled with the fact that it was

unusual for McQueen, who was not assigned to Plaintiff’s wing, and not Brashear, who

was assigned to Plaintiff’s wing, to conduct the search.

First, “[s]uspicious timing alone is rarely sufficient to defeat a motion for summary

judgment,” Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 736 (7th Cir.2011). Here,

the temporal proximity is weak at best; the March 13, 2018 Grievance predates the

shakedown by approximately two months. This, standing alone, does not trigger a causal

inference. See Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012) (“For

an inference of causation to be drawn solely on the basis of a suspicious-timing

argument, we typically allow no more than a few days to elapse between the protected

activity and the adverse action.”). Sauzek v. Exxon Coal USA Inc., 202 F.3d 913, 918 (7th

Cir. 2000) (“The mere fact that one event preceded another does nothing to prove that the

first event caused the second. Rather, other circumstances must also be present which

reasonably suggest that the two events are somehow related to one another.”) (internal

citation omitted).

Plaintiff also suggests there is something untoward about McQueen, and not

Brashear, conducting the search, and that this, coupled with the timing, demonstrate a

causal connection. But Plaintiff’s suspicions rest entirely on speculation, not evidence,

and speculation is not enough to defeat a motion for summary judgment. See Brown v.

Advoc. S. Suburban Hosp., 700 F.3d 1101, 1108 (7th Cir. 2012) (“[Plaintiff] must produce

evidence that a retaliatory motive actually influenced the decision-maker, not merely that

it could have.”); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (Speculation about

a defendant's retaliatory motive cannot create a genuine issue of material fact).

Second, and perhaps more importantly, there cannot be adverse, retaliatory action

without knowledge of protected conduct. Morfin v. City of East Chi., 349 F.3d 989, 1005 (7th

Cir. 2003) (“The protected conduct cannot be proven to motivate retaliation if there is no

evidence that the defendants knew of the protected activity”) (internal quotations and

citations omitted). There is no evidence that either Defendant knew about the March 13,

2018 Grievance. A grievance which, notably, did not pertain to either Defendant. Nor is

there any evidence that Defendants knew about Plaintiff’s alleged history of writing

grievances. Moreover, any contention that Defendants must have known about Plaintiff’s

history of filing grievances, is nothing more than speculation that these particular

Defendants were aware of his protected activity, which is not enough to survive

summary judgment. Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir.2004) (“It is not

sufficient that [Defendants] could or even should have known about [Plaintiff’s First

Amendment activity they] must have had actual knowledge of the [activity] for [their]

decisions to be retaliatory.”) (emphasis in original).

Finally, even if Plaintiff had established a causal link between his protected

conduct and the adverse action, his claim would fail because he has not established that

Defendants’ proffered reason for the shakedown – a routine 30-day search - is pretextual.

A defendant cannot be found liable for retaliation where he can show the deprivation

would have occurred even if the alleged retaliatory motive did not exist. See Mays v.

Springborn, 719 F.3d 631, 634 (7th Cir. 2013). Plaintiff does not dispute that prison guards

are always free to search an inmate’s cell, see Ill. Admin. Code tit. 20 ¶ 501.220(b)(1), or

that IDOC policy mandates that each prisoner’s cell must be searched “no less than one

time every 60 days.” Illinois Department of Corrections Administrative Directive No.

05.01.111. Further, the disciplinary documents in the record indicate that the May 28, 2018

Shakedown was a routine 30-day search. (Doc. 106-1, disciplinary report referring to the

search as a 30-day shakedown); (Doc. 106-2, disciplinary ticket describing the search as a

30-day shakedown); (Doc. 61, pg. 13, Plaintiff’s grievance describing the search as a 30-

day cell shakedown). This type of evidence demonstrates that the shakedown would

have occurred regardless of any improper motive, and Plaintiff has not presented any

evidence to the contrary.

In summary, Plaintiff has failed to establish a causal connection between his First

Amendment activity and the May 28, 2018 Shakedown. Additionally, even if Plaintiff had

made a prima facie showing of retaliation, his claim would fail because Defendants’

assertion that the search was a routine 30-day search is uncontradicted. Accordingly, the

Court will grant summary judgment in Defendants’ favor.

V. DISPOSITION

For the foregoing reasons, the Motion for Summary Judgment (Doc. 106) is

GRANTED, and this action is DISMISSED with Prejudice. The Clerk of the Court is

directed to enter judgment in Defendants' favor and against Plaintiff. All deadlines and

settings on the Court's calendar are vacated.

SO ORDERED.

Dated: January 16, 2025

Labbe i

DAVID W. DUGAN

United States District Judge

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