United States District Court, S.D. Indiana, Terre Haute Division
ROBERT L. HOLLEMAN, Plaintiff,
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
R. SWEENEY II, JUDGE
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
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.
Standard of Review
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 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).
2012 to November 2015, Holleman was incarcerated at Pendleton
Correctional Facility (“Pendleton”).
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.
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.
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.
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.
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 ...