Opinion
Case No. 93 C 7443.
March 28, 2002.
ORDER
Plaintiff Jack Newsome, a diabetic state prisoner, has filed suit pursuant to 42 U.S.C. § 1983 against several defendants employed by the Illinois Department of Corrections ("IDOC"). Specifically, Newsome claims that the defendants violated his First Amendment rights when they retaliated against him for filing formal grievances and court proceedings regarding his treatment at the Stateville Correctional Center ("Stateville"). The parties have filed cross-motions for summary judgment. For the following reasons, the court denies both motions.
Background
The following facts are undisputed. Newsome was incarcerated at Stateville from 1990 until November 17, 1993, when he was transferred to Pontiac. While at Stateville, he was diagnosed with diabetes and at the time of his transfer, he was receiving daily medical treatment. From 1991 to 1993, Newsome complained to prison officials about allegedly inadequate medical treatment. Specifically, he complained that the timing of the administration of his insulin and meals was erratic and that Stateville never instituted a policy to address the needs of diabetic prisoners, especially during lockdowns at the prison. Newsome filed many formal grievances as well as informal complaints with defendants.
Five defendants are named in Newsome's complaint and motion for summary judgment. Salvador Godinez was the warden at Stateville during the relevant time period. James Schomig was the assistant warden. Ron Fleming was the superintendent of the F-Housing Unit at Stateville, where Newsome's cell was located. Yolanda Williams was a casework supervisor at Stateville. Finally, Laura Swayne was Newsome's correctional counselor, under Williams's supervision.
It appears that defendant Williams has changed her last name to Johnson. However, for simplicity, the court will continue to refer to her as Williams.
On December 4, 1991 and December 29, 1992, Newsome requested a transfer to Joliet Correctional Center ("Joliet"). His requests were denied. On April 19, 1993, Newsome filed a pro se complaint in federal court against Godinez, Schomig, and Fleming, alleging inadequate medical treatment. That complaint was dismissed for failure to state a claim. On July 12, 1993, Newsome sent an emergency grievance directly to defendant Godinez and sent a copy to Legal Assistance Foundation of Chicago attorney Ruthanne DeWolfe, among others.
The grievance complained of the high frequency of lockdowns, which interfered with Newsome's diabetes treatments. On July 14, 1993, Godinez sent Newsome a response to his emergency grievance, in which he stated: "[y]our editorial about constant lockdowns is a lie. . . . I wonder why you are such an angry young man who has violated society's laws and then lash out at the only one who gives a damn, because no one else does!" (Mem. from Godinez to Newsome (July 14, 1993) ("Godinez Mem."), Pl.'s Ex. 9.) On July 19, 1993, Newsome sent a response to Godinez and copied DeWolfe as well as the Director of the IDOC. Having received no response, Newsome sent another emergency grievance to Godinez on July 22, 1993, asking for reconsideration of his July 12 grievance. Godinez did not respond. On August 2, 1993, Newsome filed a pro se complaint in federal court alleging that the lockdowns interfered with his medical treatment and that Godinez had wrongfully denied his July 12 grievance. The court dismissed the complaint on August 18, 1993. On August 10, 1993, Newsome wrote a letter to the Director of the IDOC, in which he claimed that, in the presence of defendants Schomig and Fleming, Godinez had threatened him with a transfer to Pontiac in retaliation for his complaints about lockdowns at Stateville.
On October 16, 1993, Newsome's transfer to Pontiac was initiated. The transfer document states that Newsome requested the transfer because he was "interested in participating in the various programs available. He appears appropriate for said transfer." (Transfer Report, October 15, 1993, Pl.'s Ex. 7.) However, the cumulative counseling summary prepared by defendant Swayne regarding Newsome's transfer does not indicate that Newsome requested the transfer. (Ordinarily, Swayne would include that information if Newsome had requested the transfer.) On November 17, 1993, Newsome was transferred to Pontiac.
Discussion
In his complaint, Newsome claims that defendants transferred him to Pontiac in retaliation for his various complaints and court filings during his stay at Stateville. He claims that defendants' retaliation violates his First Amendment rights. Defendants and Newsome have each filed a motion for summary judgment. The court will discuss each in turn.
It is well established that prison officials may not retaliate against a prisoner because of his exercise of a constitutionally protected right. Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir. 1978). Such retaliation may take the form of a transfer to a different prison. Id. It does not matter that the prisoner had no constitutional right to remain at a certain facility. "To succeed on his retaliation claim, [a prisoner] need not establish an independent constitutional interest in either assignment to a given prison or placement in a single cell, because the crux of his claim is that state officials violated his First Amendment rights by retaliating against him for his protected speech activities." Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (internal quotation marks omitted).
Even though defendants may have been permitted to transfer Newsome for almost any reason, they could not transfer him in retaliation for his exercise of First Amendment rights. "Put another way, while [a] plaintiff may not have a due process interest or expectation in remaining at the same institution, he does have a First Amendment interest or expectation in not being punished for the exercise of activity protected under that provision." Buise, 584 F.2d at 230. To succeed on a § 1983 claim for retaliatory transfer, Newsome must demonstrate that: (1) he engaged in constitutionally protected conduct; and (2) his conduct was a substantial or motivating factor behind the allegedly retaliatory acts. Moore v. Sarrazin, No. 95 C 5185, 1997 WL 610307, *4 (N.D.Ill. Sept. 29, 1997) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1976)). In addition, the transfer must be sufficiently punitive so that it constitutes a "penalty for participation in the protected conduct." Buise, 584 F.2d at 229 n. 8. Finally, Newsome must show each defendant's personal responsibility for the claimed constitutional violation. Farrell v. O'Leary, No. 90 C 1003, 1992 WL 220843, *4 (N.D.Ill. Aug. 31, 1992) (citing Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986)). On the other hand, Newsome's claim will fail if defendants can show that Newsome would have been transferred even if he had never engaged in constitutionally protected activity. Babcock, 102 F.3d at 275.
I. Defendants' Motion for Summary Judgment
Defendants appear to concede the first requirement. Otherwise, they raise four general arguments in their motion. First, they argue that Newsome's transfer to Pontiac was not an act of retaliation. Second, they claim that none of them had the requisite personal involvement to be held liable under § 1983. Third, defendants claim that Newsome's transfer to Pontiac was not punitive. Finally, defendants argue that they are all entitled to qualified immunity. The court notes that Newsome filed 119 additional facts in response to defendants' fact statement, pursuant to Local Rule 56.1(b). However, defendants never responded to Newsome's additional facts, in violation of Local Rule 56.1(a)(3). Newsome has moved the court to strike portions of defendants' response brief and deem his additional facts admitted. The court grants Newsome's motion in part. To the extent that Newsome's additional facts are supported by the record, they are deemed admitted. Haiman v. Village of Fox Lake, 55 F. Supp.2d 886, 890 (N.D.Ill. 1999) (citing Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir. 1997)). As to defendants' factual allegations found in their reply brief, the court concludes that they do not warrant summary judgment. Newsome's motion to strike these allegations is therefore denied as moot.
A. Retaliation
Newsome and defendants disagree on who bears what burden in a retaliatory transfer case. As defendants point out, some circuits have explicitly held that in a case such as this, the prisoner must show that "but for his legal actions against the prison, he would not have been transferred." Goff v. Burton, 91 F.3d 1188, 1191 (8th Cir. 1996). On the other hand, Newsome argues that there is actually a burden-shifting analysis, as implicitly recognized by the Seventh Circuit in Babcock, 102 F.3d at 275. The court agrees with Newsome, but notes that the plaintiff's burden is not as low as he may think.
In Babcock, the court held that the prisoner must "establish that his protected conduct was a motivating factor behind any delay, but that should not end the inquiry." Id. Rather, "the ultimate question is whether events would have transpired differently absent the retaliatory motive." Id. The Seventh Circuit's language in Babcock is less than clear, but there is an implication that once a prisoner meets the "motivating factor" requirement, the burden shifts to the defendant to show that the prisoner would have been transferred even absent the prisoner's constitutionally protected conduct. Id. However, that burden is remarkably light. "[W]e should afford appropriate deference and flexibility to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory." Id. (internal quotation marks excluded). Ultimately, "it will not suffice for [Newsome] to show that [defendants'] desire to retaliate played a substantial part" in the decision to transfer him. Id. He will likely need to show more.
1. Motivating factor
Defendants claim that "[t]here is no testimony-other than Plaintiff's own self-serving deposition testimony-that any of the officials involved in Plaintiff's transfer had any animus against him or otherwise acted retaliatory in the transfer process." (Defs.' Mem. Summ. J. ("Defs.' Mem.") at 3.) While defendants may be correct that there is little testimony about retaliation, plaintiff has provided other evidence that suggests a retaliatory motive among the defendants.
The court will discuss each defendant's personal involvement in Newsome's transfer below.
First, in response to Newsome's July 12, 1993 emergency grievance, Godinez sent to Newsome a memorandum in which he denied the complaints found in the grievance. In addition, the memorandum states: "I wonder why you are such an angry young man who has violated society's laws and then lash out at the only one who gives a damn, because no one else does!" (Godinez Mem., Pl.'s Ex. 9.) Jerome Springborn, a senior official at Stateville, testified that the memorandum was "very atypical" of Godinez's responses to inmates' complaints and that Godinez was "apparently upset" at Newsome. (Springborn Dep., Pl.'s Ex. 29, 78:1-19.) Next, Newsome claims that after receiving Godinez's memo, he wrote a return letter on July 19, 1993, followed by another emergency grievance on July 22, 1993. Godinez did not respond in writing to either. Newsome then filed his pro se complaint in federal court against Godinez, complaining of his treatment during lockdowns. After that, "Defendants Godinez, Fleming, and Schomig held a meeting with Mr. Newsome wherein he was threatened with a transfer to Pontiac." (Pl.'s Resp. at 14.) In August 1993, Newsome wrote a letter to the Director of the IDOC and stated that at the alleged meeting, Godinez had threatened him with a transfer to Pontiac, in the presence of Schomig and Fleming. Newsome's transfer report was created two months later and he was transferred in November 1993.
This evidence easily establishes a chronology of events from which retaliation can be inferred. In addition, there is at least a factual dispute as to whether retaliation was the motivating factor behind Newsome's transfer, in light of (1) Godinez's July 14, 1993 memo and (2) Newsome's August 1993 federal court complaint, followed by (3) Godinez's alleged threat to transfer Newsome to Pontiac. A jury could conclude that Newsome's transfer was retaliation for the exercise of his First Amendment rights.
Defendants argue that not all of them were aware of Newsome's grievances, and that in any event, grievances never play a role in a decision to transfer a prisoner. The court will discuss each defendant's personal involvement in the transfer in more detail below. Briefly, however, Newsome points to sufficient evidence to preclude summary judgment on this issue. First, defendant Williams admits responding to at least one of Newsome's grievances. Second, defendant Swayne was the first to review the majority of Newsome's grievances. Third, Newsome's grievances were often referred by prison administrators to defendant Fleming, and Newsome often complained directly to Fleming. Fourth, Newsome claims that Schomig told him he should transfer elsewhere because he had so many complaints about Stateville. Fifth, Godinez's memorandum in response to Newsome's July 12, 1993 emergency grievance clearly shows that he was aware of Newsome's complaints. Finally, in April and August 1993, Newsome filed two pro se complaints, in which Godinez, Fleming, and Swayne were all named as defendants at least once. Therefore, Newsome has pointed to sufficient evidence indicating that each defendant was aware of his complaints, grievances, or court filings. Defendants' conclusory statements that they did not consider these actions in their decision to transfer him are insufficient to warrant summary judgment.
2. Defendants' reasons for the transfer
Defendants argue that Newsome actually requested the transfer to Pontiac, as reflected in the transfer reported prepared by defendant Swayne. The transfer report, prepared on October 15, 1993, states that Newsome wanted the transfer because "[h]e is interested in participation in the various programs available." (Transfer Report, Pl.'s Ex. 7.) This report is indeed concrete evidence supporting defendants' argument. However, Newsome has provided sufficient evidence creating a genuine dispute as to whether he did, in fact, request a transfer to Pontiac.
First, defendant Godinez prepared handwritten notes on the cover page of Newsome's July 19, 1993 grievance, during the alleged meeting with Newsome on August 10, 1993. On the page, Godinez wrote a number of phrases, such as: (1) "never been to Pontiac" "but I heard"; (2) "`I can't do it' re: transfer"; and (3) "note it to be retaliation." (Godinez Notes, Pl.'s Ex. 13.) Newsome argues that this evidence shows that Godinez presented (or threatened) Newsome with the possibility of a transfer to Pontiac and that Newsome clearly expressed his objections to such a transfer. Second, Newsome points to the letter that he wrote on August 10, 1993 to the Director of the IDOC, in which he claimed that Godinez had threatened him with a transfer to Pontiac. He also claims that he showed defendant Swayne a copy of the letter, told her that he had been threatened, and said that he did not want to be transferred. Finally, Newsome notes that his cumulative counseling summary, prepared by defendant Swayne, does not indicate that he requested the transfer to Pontiac. Importantly, he points out that his two prior transfer requests to Joliet were, in fact, noted by his counselors in his cumulative counseling summary. Defendants admit that ordinarily Swayne includes transfer requests by inmates in the counseling summary. Indeed, Swayne testified at her deposition that she does not specifically recall Newsome ever requesting to be transferred to Pontiac. (Swayne Dep., Pl.'s Ex. 28, 8:20-22.) She also testified that from the face of the counseling summary, it appeared that Newsome did not request the transfer to Pontiac. (Id. at 61:12-15.) Therefore, there is a genuine dispute about whether Newsome ever requested the transfer to Pontiac.
B. Personal Involvement
In deciding whether a defendant was personally involved in a § 1983 violation, the court must consider whether each defendant "act[ed] or fail[ed] to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occur[red] at [the defendant's] direction or with [the defendant's] knowledge and consent." Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985) (citations omitted). In other words, individual defendants are personally responsible if: (1) they are personally involved in the deprivation; (2) they act or fail to act with a deliberate or reckless disregard of the plaintiff's constitutional rights; or (3) the conduct causing the deprivation occurs with their direction or with their knowledge and consent. Farrell, 1992 WL 220843, at *4. Newsome must show not only that each defendant was personally involved in the decision to transfer him, but also that each retaliated against him.
Defendants argue that none of them was personally involved in Newsome's transfer. They argue that defendant Fleming "never signed nor reviewed the transfer report." (Defs.' Mem. at 10.) They argue that defendants Schomig and Godinez did not sign the transfer report, but rather their designees signed the document in their name. They claim that defendant Williams only "made a recommendation for the transfer of Plaintiff based upon the information available to her" and that defendant Swayne "prepared the transfer documents as one of her duties." (Id.) Most importantly, defendants argue that "the final decision for all transfers is vested in the Transfer Coordinator's office, not any of these defendants." (Id.) Despite these claims, the court holds that factual disputes preclude summary judgment on this issue.
1. Godinez
First, Godinez and Schomig did not sign the transfer report; their designees did. Godinez has raised this argument before. In Mahalick v. Griffin, No. 95 C 4325, 1997 WL 159520 (N.D. Ill, March 31, 1997), he moved to dismiss a prisoner's complaint challenging a disciplinary action. Specifically, Godinez argued that he had no personal knowledge of the disciplinary proceedings involving the prisoner. His signature was affixed to the relevant summaries, but only by his designee. The court rejected this argument, albeit in a different context, holding that if the warden was not personally involved, then he must at least identify the designee so that the pro se prisoner could name the correct defendant. Id. at *4.
There, the court was willing to accept that the warden had no personal knowledge of the alleged constitutional violation. The court is unwilling to accept such a notion in this case. There is sufficient evidence suggesting that Godinez was aware of Newsome's grievances, and in fact took offense to them. There is also evidence that Godinez threatened Newsome with a transfer to Pontiac and that he knew that Newsome opposed the transfer. Nevertheless, Newsome was transferred, pursuant to a document with Godinez's signature. Whether the signature was by a designee means little because there is at least a dispute as to whether Godinez retaliated against Newsome by ordering the transfer. This is bolstered by Newsome's claim that when he asked Godinez to stop the transfer, Godinez refused. (Newsome Dep., Pl.'s Ex. 23, 52:1-6.)
2. Schomig
Newsome testified that Schomig was present at the August 10, 1993 meeting at which Godinez allegedly threatened Newsome with the transfer and Newsome responded that he would consider a transfer to be retaliation. Schomig also received a copy of Godinez's July 14, 1993 memorandum to Newsome. Assuming these factual allegations are true, then there is a dispute as to whether Schomig knew that the purported reason for transferring Newsome (that he requested the transfer) was false. In light of Newsome's pro se complaint against Schomig, there is also a dispute as to whether Schomig had a retaliatory motive against Newsome. At the very least, there is a dispute as to whether Schomig knew of Godinez's retaliatory animus, and consented to Newsome's transfer. See McCutcheon v. Cooper, No. 96 C 365, 1998 WL 246486, *3 (N.D.Ill. April 28, 1998) ("[A] defendant may be personally involved in a constitutional deprivation where he knows of and consents to another's unconstitutional acts."). As with Godinez, the fact that Schomig's signature was affixed to the transfer report by his designee is unhelpful to him in light of all the evidence. Considering the evidence in the light most favorable to Newsome, the jury could infer that Schomig did, in fact, retaliate against Newsome.
3. Fleming
Defendant Fleming received a copy of Godinez's July 14, 1993 memorandum to Newsome and attended the meeting at which Godinez allegedly threatened Newsome with a transfer and Newsome expressed his objections. In an affidavit, Fleming states that he had no personal involvement in the decision to transfer Newsome. However, in his deposition, Fleming testified that he did not remember what role, if any, he had in Newsome's transfer. Furthermore, Newsome claims that he specifically asked Fleming to intervene and stop his transfer to Pontiac.
Although Fleming did not sign the transfer report, he did nothing to stop the transfer process. As Unit Superintendent, Fleming had the authority to initiate transfers; therefore, presumably he could at least attempt to stop a transfer if he knew of a constitutional violation. See McCutcheon, 1998 WL 246486, at *3 (concluding that defendant may have had personal involvement in denying plaintiff prisoner a job where defendant approved all inmate hirings). Finally, Newsome's April 1993 complaint in federal court named Godinez, Schomig, and Fleming as defendants. Viewed in the light most favorable to Newsome, the evidence creates a genuine dispute regarding whether Fleming was involved in Newsome's transfer and retaliated against him.
4. Williams
In the October 16, 1993 cumulative counseling summary, Swayne indicated that defendant Williams told her to submit Newsome's name for transfer. Williams also signed the transfer document and noted that the reason for the transfer was "[p]roximity to inmate's needs." (Transfer Report, Pl.'s Ex. 7; Johnson Dep., Pl.'s Ex. 27, 16:5-10.) Williams explained that this meant that Newsome had requested the transfer. However, the cumulative counseling summary prepared by Swayne does not reflect that Newsome ever made such a request. Indeed, Newsome has testified that he never requested the transfer, and in fact explicitly objected to it. Viewing all the evidence in the light most favorable to Newsome, a jury could find that Williams signed the document knowing that the reasons for the transfer were false. Furthermore, Williams received a copy of Godinez's July 14, 1993 memorandum to Newsome.
This creates a dispute as to whether Williams knew of Godinez's alleged retaliatory motive against Newsome and consented to the retaliation.
5. Swayne
Defendant Swayne initiated the transfer by preparing the transfer report, in which she stated that Newsome requested the transfer. However, she did not indicate any such request in the cumulative counseling summary. Defendants concede that ordinarily Swayne would include an inmate's transfer request in the counseling summary, but contend that she was not required to do so. However, considering Newsome's testimony and other evidence indicating that he never made any request to be transferred to Pontiac, there is a dispute as to whether Swayne lied on the transfer report. This is bolstered by Newsome's claim that in August 1993, he showed Swayne a copy of the letter that he wrote to the Director of the IDOC, in which he stated that Godinez had threatened him with a transfer to Pontiac. Newsome testified at his deposition that Swayne told him that she put his name on the transfer report because the "front office" told her to do so. (Newsome Dep., Pl.'s Ex. 23, 66:5-8.) Newsome also testified that Swayne would not identify who told her to put his name on the transfer document. "I asked her whether or not it was Mr. Godinez and she said she wasn't at liberty to say." (Id. at 67:23-68:1.) Viewing all this evidence in the light most favorable to Newsome, a jury could conclude that Swayne knew of Godinez's retaliatory motive against Newsome and lied on the transfer report, thereby making herself liable under § 1983.
Finally, defendants' argument that the Transfer Coordinator has final approval authority regarding transfers is without merit. Newsome need not show that each defendant made the final decision to transfer Newsome. All that is needed is "some causal connection or affirmative link between the action complained about and the official sued." Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Newsome has provided evidence that could establish that causal connection for each defendant. Assuming that a jury believes each of Newsome's factual allegations, then the transfer report on which the Transfer Coordinator based its approval was intentionally falsified. It is the false transfer report that Newsome claims effectuated his transfer, and there is a genuine dispute as to whether each defendant was personally involved in falsifying that report.
C. Punitive Nature of the Transfer
In addition to proving a retaliatory motive, Newsome must establish that the transfer was punitive by showing harm resulting from it. Farrell, 1992 WL 220843, at *4 (citing Buise, 584 F.2d at 229). Harm is ordinarily shown by proof that the transfer created "a change for the worse." Murphy v. Lane, 833 F.2d 106, 109 n. 1 (7th Cir. 1987). "[T]he test for whether a transfer is sufficiently punitive . . . would be an inquiry into, among other things, the relative conditions in the institutions and the harms of dislocation itself, and how the inmate perceived them." Buise, 584 F.2d at 229. Newsome has provided sufficient evidence to create a genuine dispute and thereby to preclude summary judgment on this issue.
First, it is undisputed that Newsome lost his job at the Stateville law library and did not have another job at Pontiac. Second, Pontiac is further from Chicago than Stateville; therefore, Newsome claims that he received fewer visits from family members. Third, Newsome claims that programs offered at Stateville, such as a diabetic clinic and Lewis University courses, were not offered at Pontiac. Also, Newsome claims that Pontiac was a more violent prison than Stateville, and that because he was traumatized by gangs at Pontiac, he was placed in segregation. Furthermore, Newsome claims that he lost contact with his inmate friends at Stateville as a result of the transfer. Finally, Newsome has provided evidence that he explicitly opposed the transfer.
Defendants raise several arguments with regard to this issue. First, they argue that for the two years before Newsome's transfer to Pontiac, he never attended any Lewis University courses. Second, they point out that the diabetic clinic in which Newsome participated at Stateville was not offered at Joliet, where Newsome specifically requested a transfer on two occasions. Defendants next argue that although Newsome may have lost contact with inmate friends at Stateville, inmates are not permitted to create long-term relationships at all for security reasons. In response to Newsome's claim that he was placed in segregation upon his arrival at Pontiac, defendants contend that this was due to Newsome's own behavior. Specifically, defendants claim that Newsome "was ticketed and found guilty of seven major prison violations ranging from intimidation and threats to disobeying direct orders." (Defs.' Reply at 10.) Defendants raise some good points but fail to sufficiently counter Newsome's arguments about the loss of his library job, the diminished family visits, and the violence at Pontiac.
First, defendants do not dispute that Newsome lost his library job, nor do they argue that the loss had no adverse effect on Newsome. They do raise an argument with respect to Newsome's family visits. Defendants argue that the distance between Chicago and Pontiac (102 miles), as compared with the distance between Chicago and Stateville (45 miles), is not so great that it "create[s] a considerable hardship on the Plaintiff's family." (Defs.' Reply at 9.)
The court disagrees, especially in light of Newsome's affidavit, in which he states that his family visits decreased after his transfer to Pontiac. (Newsome Aff., Pl.'s Ex. 2 ¶ 21.) This evidence, when supplemented with evidence that Newsome explicitly opposed the transfer, creates at least a genuine dispute as to whether the transfer to Pontiac was punitive. This is especially true when considering Newsome's perception of the transfer. Buise, 584 at 229 n. 8.
Defendants also take issue with Newsome's statistics indicating that Pontiac is a more violent institution than Stateville. They concede that the statistics "demonstrate that there were over four times as many inmate on inmate assaults at Pontiac than at Stateville between 1991 and 1993." (Defs.' Reply at 5.) However, defendants argue that the statistics could be skewed by facts such as how much time each prison is on lockdown, whether violence at Pontiac is exclusively within gangs, and the population for each facility. While defendants' arguments have merit, they only help to solidify the genuine dispute of material fact regarding whether Newsome's transfer was punitive. If a jury believes all of Newsome's allegations, it could find in his favor.
D. Qualified Immunity
Finally, defendants have invoked qualified immunity. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In evaluating defendants' claim of qualified immunity, this court must engage in a two-step analysis. First, the court must determine whether Newsome's claim states a violation of his constitutional rights.
As discussed above, the court has found that Newsome succeeds with this requirement. Second, this court must determine whether Newsome's rights were clearly established at the time the alleged violation occurred. Wilson v. Layne, 526 U.S. 603, 609 (1999). A clearly established right is one where "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001) ("The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."). "Because there is an almost infinite variety of factual scenarios that may be brought into the courtroom, a plaintiff need not point to cases that are identical to the presently alleged constitutional violation." Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000). However, "the contours of the right must have been established so that the unlawfulness of the defendant's conduct would have been apparent in light of existing law." Id. (citing Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430 (7th Cir. 1989)).
The alleged retaliatory transfer in this case occurred in 1993. The prohibition against retaliatory transfer was sufficiently well established by the Buise case in 1978, such that a reasonable person would have known about it. Buise, 584 F.2d at 229 ("[I]t is well established that an act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983."); see also Armstrong v. Peters, No. 92 C 7156, 1994 WL 542764, *1 n. 3 (N.D.Ill. Oct. 3, 1994) (holding that the rule against retaliatory transfer was sufficiently well established at the time of alleged § 1983 violations between 1989 and 1993). A reasonable official would have understood that transferring Newsome in retaliation for his grievances and court actions was unlawful. Thus, defendants are not qualifiedly immune from suit. Id.
II. Newsome's Motion for Summary Judgment
Newsome has filed his own motion for summary judgment, arguing that the undisputed facts show that he is entitled to judgment. The court disagrees. Now that Newsome has become the movant, the court must view the evidence in the light most favorable to defendants. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). There are genuine disputes in this case regarding several issues.
First, although Newsome has pointed to evidence indicating that he never requested a transfer to Pontiac, defendants have provided the transfer report itself, which states that Newsome wanted the transfer and that he was interested in the programs at Pontiac. Defendants supplement this evidence with sworn testimony from Williams and Swayne that Newsome did, in fact, request the transfer. In addition, defendants argue that Swayne would not have necessarily indicated Newsome's alleged transfer request in her cumulative counseling summary because she was not required to include that information. Finally, defendants vehemently deny that Newsome ever objected to his transfer to Pontiac. This creates a dispute as to defendants' reasons for the transfer.
Second, there is a dispute regarding whether Godinez's memorandum to Newsome on July 14, 1993 was "atypical." Defendants claim that this kind of communication between Godinez and inmates was not uncommon and therefore indicates no retaliatory animus on Godinez's part. This calls into doubt Newsome's claim of retaliation.
There is also a genuine dispute regarding whether Godinez directed that Newsome's name be placed on a transfer list. The best evidence that Newsome provides is Swayne's deposition, in which she states that she received notice from the "front office" to initiate the transfer. However, he provides no more evidence linking the "front office" with a direct order from Godinez. If Godinez did not order the transfer, then there is a dispute as to whether each of the other defendants was personally involved in retaliating against Newsome. Even if Godinez did order the transfer, there is a dispute as to whether each defendant was personally involved in the retaliation. Each defendant has submitted evidence indicating either that he or she was not involved in the decision to transfer at all, or that he or she did not consider Newsome's grievances when approving his transfer to Pontiac. Therefore, there are multiple disputes in this case which preclude summary judgment in favor of Newsome.
Conclusion
For the foregoing reasons, the parties' cross-motions for summary judgment are denied. Plaintiff Newsome's motion to strike portions of defendants' reply brief is granted in part and denied in part as moot.