United States District Court, S.D. Indiana, Indianapolis Division
JAY F. VERMILLION, Plaintiff,
MARK E. LEVENHAGEN, SALLY NOWATZKE, BRETT MIZE, HOWARD MORTON, GARY BRENNAN, WILLARD PLANK, DAWN BUSS, CHARLES WHELAN, RALPH CARRASCO, Defendants.
ENTRY DISCUSSING PARTIAL MOTION FOR SUMMARY
RICHARD L. YOUNG, JUDGE
reasons explained below, the defendants' motion for
partial summary judgment, dkt , is granted in
part and denied in part.
action was transferred from the Northern District of Indiana
to this district following the Seventh Circuit's Mandate
issued April 6, 2015. The Mandate summarized Vermillion's
claims as follows.
Vermillion alleges that on July 29, 2009, he was interviewed
by Internal Affairs investigators after several fellow
inmates had escaped from the Indiana State Prison
(“ISP”). The interviewers accused him of being
involved in the escape and threatened to pursue criminal
charges, prompting Vermillion to stop answering their
questions. Following this encounter, according to Vermillion,
the three interviewers along with another investigator from
Internal Affairs and five administrators from ISP, Westville
Correctional Facility, and DOC headquarters retaliated for
his silence by immediately placing him in punitive
segregation at ISP and then on August 12, 2009, transferring
him to Westville, where he was housed in the Maximum Control
Segregation Unit. This transfer, Vermillion alleges, occurred
after two of the administrators falsified documents to
exaggerate his security classification. All nine of these
employees are named defendants.
Vermillion claims that for more than three years after the
transfer, he was confined in his segregation cell at
Westville for at least 23 hours per day without personal
interaction with other inmates, and during those years, five
of the same nine employees-joined by many others-continued
retaliating against him for invoking his right to remain
silent. This retaliation, Vermillion alleges, ranged from
intercepting his mail to mishandling the administrative
hearings concerning a disciplinary ticket for trafficking
Mandate at p. 2
Vermillion argues that his transfer violated his right to due
process but also was initiated for the purpose of retaliating
for his refusal to answer questions about the escaped
prisoners. The Fifth Amendment gives a person the right
“not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal
proceedings.” Lefkowitz v. Turley, 414 U.S.
70, 77 (1973). This right applies in the prison disciplinary
context, and prison officials may violate a prisoner's
right against self-incrimination if a prisoner's silence
alone results in punishment of the kind capable of compelling
waiver of the right. See Minnesota v. Murphy, 465
U.S. 420, 434 (1984); Baxter v. Palmigiano, 425 U.S.
308, 317 (1976); LaSalle Bank Lake View v. Seguban,
54 F.3d 387, 390 (7th Cir. 1995). Although not all of his
claims can be linked to his assertion of this right,
Vermillion plausibly alleges that more than just the five
administrators were involved in retaliating against him for
his refusal to talk to the Internal Affairs investigators.
Vermillion claims that his placement in punitive segregation
at ISP, his transfer to the Maximum Control Segregation Unit
at Westville, and the alleged falsification of documents to
exaggerate his security classification and keep him confined
in segregation were punishments aimed at retaliating against
him because he asserted his right to silence. Because this
claim points to joint conduct by the five administrators and
four Internal Affairs investigators and would invariably rely
on some of the same facts as his due-process claim relating
to the transfer, Vermillion properly joined the defendants
Case No. 14-2327, Mandate at dkt. 87-3 at p. 5.
the transfer of this action to this district, Vermillion was
instructed to file a Third Amended Complaint. That pleading
was screened and the following claims were permitted to
proceed consistent with the Mandate. See dkt. 97.
Claim 1. Willard Plank, Dawn Buss, Charles Whelan,
Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton,
Sally Nowatzke, and Gary Brennan placed Vermillion in
punitive segregation at ISP, transferred him to the Maximum
Control Segregation Unit (the “Westville Control
Unit” or “WCU”) at Westville, and confined
him in segregation in retaliation for his assertion of his
right to silence during an interview by internal affairs
Claim 2. Willard Plank, Dawn Buss, Charles Whelan,
Ralph Carrasco, Mark Levenhagen, Brett Mize, Howard Morton,
Sally Nowatzke, and Garry Brennan placed Vermillion in the
Westville Control Unit for 1, 513 days in violation of his
right to be free of cruel and unusual punishment.
Claim 3. Willard Plank, Dawn Buss, Charles Whelan,
Ralph Carrasco, Mark Levenhagen, and Brett Mize transferred
Vermillion from the ISP to department-wide administrative
segregation at the Westville Control Unit in violation of his
due process rights.
Claim 4. Howard Morton confiscated Vermillion's
certified legal mail in violation of his due process and
First Amendment rights.
defendants seek summary judgment as a matter of law on all
but the claim against Levehagen and Mize related to
Vermillion's transfer from the ISP to department-wide
administrative segregation at Westville in violation of his
due process rights. See claim 3. The defendants argue that
they are entitled to judgment as a matter of law as to all
the age of the case and the number of claims and defendants
the evidentiary record is relatively sparse. In support of
summary judgment, the defendants present Vermillion's
deposition (including 30 pages of exhibits), a two page
declaration from Charles Whelan, and an audio recording of
Vermillion's July 29, 2009, interview with internal
affairs officers. Vermillion opposes summary judgment. In
addition to his Third Amended Complaint, which was signed
under penalty of perjury, he presents fourteen exhibits which
all appear to be IDOC records. The defendants replied and
Vermillion submitted a surreply. The motion for summary
judgment is now fully briefed.
Summary Judgment Standard
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). As the current version of Rule 56 makes clear, 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). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). 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.
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). In other
words, while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not
outcome-determinative. Montgomery v. American Airlines
Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes
that are irrelevant to the legal question will not be
considered. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
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, 573-74 (7th Cir. 2017). Any doubt as to the existence of
a genuine issue for trial is resolved against the moving
party. Ponsetti v. GE Pension Plan, 614 F.3d 684,
691 (7th Cir. 2010).
Willard Plank was, at all times relevant to the allegations
made against him in the Third Amended Complaint, an employee
of the Indiana Department of Correction (“IDOC”),
Division of Internal Affairs as Chief Investigator. Other
than his participation in the July 29, 2009, interview,
Vermillion has no information regarding Plank's
involvement in the circumstances at issue in this case.
Buss was, at all times relevant to the allegations made
against her in the Third Amended Complaint, an IDOC employee,
Division of Internal Affairs as Deputy Chief. Other than her
participation in the July 29, 2009, interview, Vermillion has
no information regarding Dawn Buss's involvement in the
circumstances at issue in this case.
Charles Whelan was, at all times relevant to the allegations
made against him in the Third Amended Complaint, employed by
the IDOC in the Division of Internal Affairs at the ISP as
Internal Affairs Officer 3. Vermillion had no interaction
with Charles Whelan other than the interview.
Ralph Carrasco was, at all times relevant to the allegations
made against him in the Third Amended Complaint, an employee
of IDOC, Division of Internal Affairs at ISP as Internal
Affairs Officer 4. Vermillion's only support for a claim
against Carrasco is that he prepared a conduct report
charging Vermillion with a trafficking offense.
Levenhagen was at all times relevant to the Third Amended
Complaint employed by IDOC as the Superintendent of Westville
Brett Mize was, at all times relevant to the allegations made
against him in the Third Amended Complaint, employed by IDOC
as Director of Operations. Vermillion was told that he was
placed in department-wide administrative segregation by Mize.
Mize was “the one who decided whether or not you were
going to be placed in this administrative segregation
status.” (Vermillion Dep. 42:24-43:1.)
Howard Morton at all relevant times to the Third Amended
Complaint was employed by the IDOC at ISP as an
Sally Nowatzke at all relevant times to the Third Amended
Complaint was employed by the IDOC at Westville as a
Counselor. She served as a case manager who worked in the
Brennan at all relevant times to the Third Amended Complaint
was employed by the IDOC at Westville as an Administrative
Assistant. Brennan was one of the officials who oversaw the
Investigation and transfer
July 12, 2009, Offenders Lance Battreal, Charles Smith, and
Mark Booher escaped from ISP, which is located in Michigan
During the course of the investigation into the escape,
information was received from an offender that Unit Team
Counselor Don Bates and Vermillion were trafficking tobacco
into ISP and that the proceeds were being stored in the law
library. During a subsequent interview into the allegations
of trafficking with offenders, Bates confessed to trafficking
tobacco with Vermillion.
Based on this information, investigators decided to interview
July 29, 2009, Vermillion was taken from his cell at ISP to
the Internal Affairs Office, where he was interviewed by IDOC
Internal Affairs Investigators Charles Whelan, Dawn Buss, and
Willard Plank. The audio recording reviewed by the court
reflects that the Officers wanted Vermillion to assist with
their investigation and they suggest that if he cooperated he
might be permitted to keep his cat in “lock up.”
Dkt. 200, manual filing, audio recording at 4:48. Vermillion
then asks “why would I go to lock up?”
Id. at 5:18. He is told for trafficking.
Id. at 5:32. One of the officers goes on to say that
they spoke with Bates yesterday and that “he
doesn't work here any longer.” Id. at
5:40. Vermillion asks what that has to do with him.
Id. at 5:41. The answer cannot be discerned from the
audio, but the Officer goes on to state that they would like
Vermillion to assist them because he has “a wealth of
information you could help us with. That pertains to escape,
to trafficking with Bates, cell phones, tobacco three or four
times a week. We have a general idea of what's going on
but we just want you to play ball with us, that's
all.” Id. at 6:04-6:24. Vermillion then told
Plank “I don't think we have anything else to talk
about.” Id. at 6:44; Ver. Dep. 10:22-23. In
response, Plank said “okay lock him up.” Audio at
Plank then explained that Vermillion would be placed in
segregation pending the investigation and the outcome would
probably be a charge of trafficking with a staff member.
Audio at 6:52. In addition, if as a result of the
investigation it was determined that he was involved with ...