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Holleman v. Zatecky

United States District Court, S.D. Indiana, Terre Haute Division

January 18, 2019

ROBERT L. HOLLEMAN, Plaintiff,
v.
DUSHAN ZATECKY, DUANE ALSIP, PAULA DICKSON, JACK HENDRIX, MICHAEL OSBORN, DICK BROWN, Defendants.

          ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT

          JAMES R. SWEENEY II, JUDGE

         Robert Holleman asserts that six employees of the Indiana Department of Correction-- Defendants Warden Dick Brown, Warden Dushan Zatecky, Director of Classification Paula Dickson, Assistant Warden Duane Alsip, Classification Analyst Michael Osburn and Classification Supervisor Jack Hendrix--retaliated against him by moving him from one maximum security prison to another because he filed a lawsuit and spoke to the media which resulted in the publication of a negative newspaper article. This lawsuit seeks money damages for which Defendants would be personally liable and transfer back to Pendleton Correctional Facility.

         Defendants argue that they are entitled to summary judgment because a transfer between two maximum security prisons is not likely to deter a prisoner's First Amendment activity, the decision to transfer Holleman was made without any improper motive, and they are entitled to qualified immunity.

         I. Standard of Review

         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).

         “When summary judgment is sought on a qualified immunity defense, the court inquires whether the party opposing the motion has raised any triable issue barring summary adjudication.” Ortiz v. Jordan, 562 U.S. 180, 184 (2011). 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).

         II. Material Facts

         From 2012 to November 2015, Holleman was incarcerated at Pendleton Correctional Facility (“Pendleton”).

         On April 30, 2014, Holleman sued Zatecky, Gilley, Francum, Cole, Alsip and Johnson, for filing a false report of conduct and terminating his law library job and honor dorm placement in retaliation for exercising his First Amendment rights. That action, Holleman v. Zatecky, 1:14-cv-671-TWP-DML, was resolved through settlement on September 1, 2017.

         While that case was pending, on March 16, 2015, Holleman sued Zatecky, Alsip, Krause, Hill, Williams, Reed, and Dickson alleging that they left him in cold conditions during the winter months in 2014 in H-cell house and that Holleman was later moved to O-Dorm and then out of O-Dorm in retaliation for exercising his First Amendment rights. That action was docketed as Holleman v. Zatecky, 1:15-cv-441-SEB-DKL. In that civil action, the defendants agreed not to move Holleman out of Pendleton until after his November 12, 2015, parole board hearing. Dkt. 106 at p. 1-2 (Pl.'s Resp. Brief). That case was resolved through settlement on December 17, 2018. See Holleman v. Zatecky, 1:15-cv-441-SEB-DKL.

         On September 25, and 28, 2015, Holleman wrote letters complaining that water was pooling in the basement of his housing unit and complaining of the anticipated future use of sack lunches at Pendleton.

         On October 11, 2015, the Anderson Herald Bulletin published a negative story concerning the medical care at Pendleton. Dkt. 106 at p. 3. Holleman was interviewed for this story.

         That same month, Zatecky asked Brown if he had any offenders that he wanted to transfer in exchange for Holleman, “as far as sending that offender to Pendleton and then sending [Mr. Holleman] to Wabash ...


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