United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. LEICHTY JUDGE.
Keith Burnett, Jr., a prisoner without a lawyer, proceeds on
a First Amendment claim against Edward Fox, Michael Moon, and
Keith Wilson terminating his employment on June 16, 2016, in
retaliation for complaints regarding their professionalism
and harm to his reputation. The parties have filed
cross-motions for summary judgment, which remain pending. In
the defendants' motion for summary judgment, they argue
that Mr. Burnett has not shown that his complaints motivated
the termination, and they say Mr. Burnett would have been
terminated even absent such complaints.
defendants provided Mr. Burnett with the summary judgment
notice required by N.D. Ind. L.R. 56-1 and a copy of both
Federal Rule of Civil Procedure 56 and Local Rule 56-1. ECF
92. The notice informed Mr. Burnett of the consequences of
forgoing a response. It advised that, unless he disputed the
facts presented by the defendants, the court could accept
those facts as true. See Fed. R. Civ. P. 56(e). It
further advised that a lack of response could result in the
dismissal of his case. See Fed. R. Civ. P. 56(a).
Mr. Burnett requested and received extensions of time to
prepare a response to the defendants' motion for summary
judgment and a reply in support of his motion for summary
judgment. ECF 105, ECF 106, ECF 108. Nevertheless, Mr.
Burnett did not file these briefs.
Burnett also filed a motion for default judgment, arguing
that the defendants failed to file a response to his motion
for summary judgment. ECF 93. In response, the defendants
filed a motion for leave to amend their motion for summary
judgment to reflect that it was also their response to Mr.
Burnett's motion for summary judgment. ECF 94. They
explain that they did not file a timely response due to a
calendaring error. Though the court expects all parties to
abide by deadlines, these circumstances do not warrant the
harsh sanction of default judgment, particularly in light of
their pending summary judgment briefing. See Sun v. Bd.
of Trustees of Univ. of IL, 473 F.3d 799, 811 (7th Cir.
2007) (“This Circuit has a well-established policy
favoring a trial on the merits over a default
judgment.”). Therefore, the court grants leave to amend
and denies the motion for default judgment.
to the complaint and the attached exhibits, Mr. Burnett was
terminated from his job at the recycling center at the
Indiana State Prison on May 6, 2016. ECF 2-1 at 2. Officer
Edward Fox and Sergeant Michael Moon, who supervised the
recycling department, signed the termination paperwork, which
alleged that Mr. Burnett had removed property from the
recycling area. Id. On May 9, Sergeant Moon emailed
Officer Fox and Lieutenant Keith Wilson, stating that he was
unable to obtain a written statement from the correctional
officer who had witnessed the theft. Id. at 4. He
recommended Mr. Burnett's reinstatement as a recycling
employee and the removal of the negative evaluation from Mr.
Burnett's record. Id.
Mr. Burnett's reinstatement, on May 17, Mr. Burnett
complained to Officer Fox, Sergeant Moon, and Lieutenant
Wilson that their conduct had been unprofessional and the
report had defamed his good name and reputation. ECF 2 at 6.
He told them he believed “their unprofessional conduct
was unacceptable and should never happen again.”
Id. Sometime thereafter, Mr. Burnett did not show up
for work because correctional staff did not unlock his cell.
Id. On June 16, 2016, Mr. Burnett was terminated for
a second time. ECF 2-1 at 6. Officer Fox filled out Mr.
Burnett's termination paperwork, stating:
Did not show up to work and continues to come down to back
street when he is circled off. Offender Burnett does not meet
the standards of this department. He has displayed this type
of behavior before.
Id. Major Nowatski investigated Mr. Burnett's
termination. ECF 2 at 6-7. On June 22, a correctional officer
confirmed that Mr. Burnett was unable to show up for work
because he was locked in his cell. Id. Officer Fox,
Sergeant Moon, and Lieutenant Wilson told Major Nowatski that
surveillance cameras recorded Mr. Burnett in the cellhouse
during scheduled work hours, but Major Nowatski found that
these recordings were during times when the recycling center
was closed. Id. Despite this information, Sergeant
Moon did not rehire Mr. Burnett, and Mr. Burnett remained
unemployed until August 12, 2016, when he was approved for an
apprenticeship course. ECF 2-1 at 8. As a result of his
unemployment and wrongful terminations, Mr. Burnett suffered
emotional distress, major depression, and mental anguish. ECF
2 at 8.
deposition, defense counsel asked Mr. Burnett about the
statement that he went to the recycling center even when he
was not scheduled to work. ECF 91-1 at 14. He responded:
Okay. As far as me continuing to walk back there, I don't
walk back there unless I'm let out of my cell by staff to
go to work. So therefore I would not be in an unauthorized
area unless staff let me out to go to work, which would be on
staff doing the wrong thing and not me, simply because staff
is only to let me out when I'm going to work. So I would
never be in an unauthorized area unless staff let me out of
my cell to go to work, which results in the reporting
officers or the supervisors over the recycling job making up
false reports because they already understand that I do not
have they keys to my cell. They understand that I'm not
supposed to be let out of my cell at midnight. So they're
going to keep me locked in, so they know when to let me out
of my cell and when not to let me out of my cell, which
result in me being where I'm supposed to be pursuant to
staff letting me out of my cell.
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether summary judgment is appropriate, the
deciding court must construe all facts in the light most