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Vermillion v. Levenhagen

United States District Court, S.D. Indiana, Indianapolis Division

May 22, 2018

JAY F. VERMILLION, Plaintiff,
v.
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 JUDGMENT

          RICHARD L. YOUNG, JUDGE

         For the reasons explained below, the defendants' motion for partial summary judgment, dkt [196], is granted in part and denied in part.

         I. Introduction

         This 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[1] 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 contraband.

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 allegedly responsible.

Case No. 14-2327, Mandate at dkt. 87-3 at p. 5.

         Following 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 investigators.
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.

         The 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 other claims.

         Given 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.[2] The defendants replied and Vermillion submitted a surreply. The motion for summary judgment is now fully briefed.

         II. Summary Judgment Standard

         A motion for summary judgment asks the court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). 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. 56(e).

         In deciding a motion for summary judgment, the court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). 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).

         On summary judgment, a party must show the court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to “scour every inch of the record” for evidence that is potentially relevant to the summary judgment motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 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).

         III. Material Facts

         A. Parties

         1. 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.

         2. Dawn 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.

         3. 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.

         4. 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.

         5. Mark Levenhagen was at all times relevant to the Third Amended Complaint employed by IDOC as the Superintendent of Westville Correctional Facility.

         6. 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.)

         7. Howard Morton at all relevant times to the Third Amended Complaint was employed by the IDOC at ISP as an Administrative Assistant.

         8. 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 WCU.

         9. Gary 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 WCU.

         B. Investigation and transfer

         1. On July 12, 2009, Offenders Lance Battreal, Charles Smith, and Mark Booher escaped from ISP, which is located in Michigan City, Indiana.

         2. 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.

         3. Based on this information, investigators decided to interview Vermillion.

         4. On 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 6:47.

         5. 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 ...


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