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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OFILLINOIS
GREGORY HALE,
Plaintiff,
vs.
AUGUSTUS SCOTT, JR., et al.,
Defendants.
01-CV-3052
252 F. Supp. 2d 728
March 17, 2003, Decided
March 17, 2003, Opinion
Filed
Order
On January
28, 2002, all the plaintiff's claims were dismissed for failure to state a
claim except for his claims that:
1) the discipline he received for insolence based on the content of his
prison grievance violated his First Amendment rights;
2) he was transferred to another prison in retaliation for exercising
his right of access to the courts or for helping others exercise their right of
access to the courts; and,
3) defendant Wildman retaliated against the plaintiff for exercising
his right of access to the courts by refusing him copies of necessary legal
documents and/or otherwise hindering his use of the library.
Before the court is the defendants' motion for summary judgment
[d/e 53], which is granted for the reasons below.
Standards
A party moving for summary judgment must show, from the
"pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, . . ." that there is no genuine
issue of material fact and that the "moving party is entitled to judgment
as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001),
citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S.
Ct. 2548 (1986); Fed. R. Civ. P.56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Herman v. National Broadcasting
Co., Inc., 744 F.2d 604, 607 (7th Cir.
1984), cert. denied, 470 U.S. 1028, 84 L. Ed. 2d 782, 105 S. Ct. 1393 (1985).
This burden can be satisfied by "'showing'--that is, pointing out to the
district court--that there is an absence of evidence to support the nonmoving
party's case." Celotex, 477 U.S. at 325. If such a showing is made, the
burden shifts to the non-movant to "set forth specific facts showing that
there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259
F.3d at 837. A nonmoving party cannot rest on its pleadings, but must
demonstrate that there is admissible evidence that will support its position.
Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). Credibility
questions "defeat summary judgment only 'where an issue as to a material
fact cannot be resolved without [*730] observation of the demeanor of witnesses
in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing
Advisory Committee Notes, 1963 Amendment to Fed. R. Civ. P. 56(e)(other
citations omitted).
In determining whether factual issues exist, the court must
view all the evidence in the light most favorable to the non-moving party.
Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). However,
Rule 56(c) "mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322. "Where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party there is no
'genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d
1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice.
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L.
Ed. 2d 538, 106 S. Ct. 1348 (1986). Disputed facts are material only if they
might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506,
507-08 (7th Cir. 1992). "Summary judgement is not a discretionary remedy.
If the plaintiff lacks enough evidence, summary judgement must be
granted." Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994).
Background and Facts
On June 30,
1999, during his incarceration at Lincoln Correctional Center
("Lincoln"), the plaintiff filed a grievance against an Officer
Drone. [Complaint, d/e 5 at p. 4]. The grievance stated that Officer Drone
failed to "call chow" in the mornings, dozed off during duty, talked
on the phone excessively, and slandered the plaintiff's name by labeling him to
other inmates as a complainer. The plaintiff characterized Officer Drone as
unethical and unprofessional. The plaintiff further accused this officer of
"fratilizing" n1 with inmates, including the plaintiff. He stated,
Furthermore, I have observed C/O Drone badge 138, Fratilizing with
inmates and on two occassions with me. In which she told me that this is her
third 90 days being assigned to Housing Unit 5B, and she must be doing
something right, why she hadn't been moved. Rumor goes according to inmates
that have been on the unit since she came, [Officer Drone] is screwing a lot of
the Officer's on the midnight shift along with a few Sergants and Lt's, etc. .
Maybe C/O Drone had became to at ease with H.U. 5B and should be reassigned or
put on days to enable her to review how to perform her job assignment when
assigned to Housing unit.
[Grievance attached to Complaint, d/e 5, [sics not
specifically identified]]. The plaintiff requested in his grievance that the
administation discipline the officer,
remove her from the unit or switch her to the day shift.
The
grievance officer's response was "The allegations/accusation Mr. Hale
cites in this grievance are quite serious in nature. The matter has already
been referred to Internal Affairs for Investigation." Defendant Wyles (a
lieutenant) interviewed the plaintiff, and on July 7, 1999, wrote a
disciplinary report against the plaintiff accusing him of insolence for his
grievance statements referring to the rumors about Officer Drone having sexual
intercourse with other officers during her shift. Defendant Wyles' ticket
stated that the plaintiff had admitted on interview that it was just a rumor
which he had included because "he wanted to put everything he knew about
Drone in the grievance." [Disciplinary Report dated[*731] 7/7/99, attached
to Complaint]. The plaintiff stated in his deposition that defendant Wyles had
asked him why he had included the statement in his grievance, and the plaintiff
had replied, "I said no apparent reason. I was reporting the conduct and
that was part of the conduct that I was aware of and I wanted to include
that." [Plaintiff's Aff. p. 51. lines 8-11].
An Adjustment Committee
Report attached to the plaintiff's complaint found the plaintiff guilty of
insolence for stating in his grievance that the officer was "messing
(screwing) around with staff members." n2 The Report states that the
guilty finding was based on defendant Wyles' credibility and the plaintiff's
admission that the accusations against the officer were only rumors. The
plaintiff was demoted to C grade for 15 days and received segregation for 15
days. n3
In a
separate incident, the plaintiff alleges that he was transferred to Logan
Correctional Center in retaliation for filing his grievances and lawsuits
and/or acting as a jailhouse lawyer. Defendant Wildman (the librarian)
allegedly refused to allow him to make photocopies of legal documents he needed
to file his complaint in an action in Illinois Claims Court and otherwise
hindered his library access, in retaliation for his filing grievances and
lawsuits. The plaintiff admitted in his deposition that defendant Wildman
allowed him to make photocopies when the plaintiff had enough money on the
books.
The following facts are
offered by the defendants with support in the record and are not disputed by
the plaintiff. On October 7, 2000 n4, Lincoln was transformed from a men's
prison to an exclusively women's prison, medium security. The plaintiff was
transferred from Lincoln on September 20, 2000, because of this transformation.
The majority of male inmates at Lincoln were transferred to Logan Correctional
Center or Dixon Correctional Center. n5 Approximately 260 inmates were
transferred from Lincoln to Logan Correctional Center on or before October 7,
2000. The plaintiff admits that the transfer itself was not done in
retaliation, but maintains that he was transferred to Logan rather than another
minimum security prison in retaliation. At no time did Warden Scott contact the
clinical service supervisor's officer to involve himself in the transfer
assignment of inmate Hale.
The plaintiff
does not dispute that if inmates are permitted to harass, annoy, show
disrespect for, and intimidate officers, the safety and security of the prison
is compromised. He does not dispute that inmates might be able to manipulate
staff to their advantage and to conduct prohibited activities without
intervention by the compromised staff.
Analysis
Discipline for Insolent Statement in Grievance
The trouble
arises from the plaintiff's statement in his grievance that, "Rumor [*732]
goes according to inmates that have been on the unit since she came, [Officer
Drone] is screwing a lot of the Officer's on the midnight shift along with a
few Sergants and Lt's, etc., . . . . 20 Ill. Adm. Code 504, Table A, defines
insolence as "talking, touching, gesturing, or other behavior which
harasses, annoys or shows disrespect."
The
plaintiff argues in his response that his grievance did not compromise any
safety or security concerns and that he has a First Amendment right to grieve
unprofessional and unethical conduct of employees. He asserts that he could
have called a witness, a Chaplain Tockey, to corroborate the rumor's existence,
but that his witness request was refused. n6 He further asserts that he has
known inmates to use "all kinds of disrespectful names thru the griv.
proc. and they were never disciplined for it," though he offers no
evidence to support his assertion. [Plaintiff's Objections to the Defendant's
Uncontested Facts, d/e 58, para. 17]. He also argues that he did not need to
know if the rumor was true, since he clearly labeled it as a rumor in his
grievance. He cites Illinois statute 730 ILCS 5/3-8-8(e) which states that
"discipline shall not be imposed because of use of the grievance
procedure."
Defendant
Wyles avers that he wrote the disciplinary ticket because he believed that the
plaintiff intended to harass, annoy and show disrespect to Officer Drone. He
further believed that the plaintiff intended to either intimidate Officer Drone
into treating the plaintiff more favorably or to retaliate against her. Wyles
avers that he issued the disciplinary ticket to prevent the plaintiff from
attempting to compromise safety and security concerns and to prevent the
plaintiff from manipulating Officer Drone's reassignment by "repeating baseless
rumors in a communication to other correctional staff." [Wyles Aff. paras.
7-9].
"In the First Amendment context, . . .a prison inmate
retains those First Amendment rights that are not inconsistent with his status
as a prisoner or with the legitimate penological objectives of the corrections
system." Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct.
2800 (1974); see also Turner v. Safley, 482 U.S. 78, 95, 96 L. Ed. 2d 64, 107
S. Ct. 2254 (1987). Restrictions on First Amendment
rights are constitutional if they are "'reasonably related to legitimate
penological interests.'" See Thornburgh v. Abbott, 490 U.S. 401,
412, 104 L. Ed. 2d 459, 109 S. Ct. 1874)(1989), citing Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S.
Ct. 2254 (1987). Additionally, the plaintiff's statements were in a grievance,
which means that the discipline not only affected his free speech rights, but
also his right to petition the government for redress and right to access the
courts. "Prisoners have a constitutional right of access to the courts
that, by necessity, includes the right to pursue the administrative remedies
that must be exhausted before a prisoner can seek relief in court." DeWalt
v. Carter, 224 F.3d 607, 618 (7th Cir. 2000); see also Walker v. Thompson, 288
F.3d 1005, 1009 (7th Cir. 2002)(assuming on motion to dismiss that prison
grievances may be protected by speech or petition clauses of the First
Amendment and right to access the courts).
It is
settled that prison officials may
discipline inmates for insolent and disrespectful behavior, for obvious
legitimate penological concerns of security and order. In Ustrak v.
Fairman, 781 F.2d 573, 579 (7th Cir. 1986), the Seventh Circuit upheld an
inmate's punishment for violating a regulation forbidding, among other [*733]
things, disrespect or insolence. The inmate in Ustrak had written a letter describing prison
officers as "'stupid lazy assholes'" and challenging them to
"'bring their fat asses around the gallery at night.'" 781 F.2d at
580. The Seventh Circuit held that "if inmates have some First Amendment
rights, still they have only those rights that are consistent with prison
discipline . . . We can imagine few things more inimical to prison discipline
than allowing prisoners to abuse guards and each other. The level of violence
in American prisons makes it imperative that the authorities take effective
steps to prevent provocation." Id. Other cases the court has found
upholding discipline for insolent language involve similar epithets and
"fighting words." See Leonard v. Nix, 55 F.3d 370, 375 (8th
Cir. 1995)(racial obscenities in outgoing letter: "They really got pissed
off for me calling him [the warden] a N
--. Ha. That's why I'm putting it in this letter so many times." .
. ." F that Black B and all his F ing Merry Little Band."); In re
Parmalee, 2003 WL 222804 (Wash. Ct. App. 2003)(statements in written grievances
calling officer "piss-ant officer," "asshole,"
"prick," and "shithead").
The court
has found no Seventh Circuit case addressing whether prisoners can be punished
for insolent statements in grievances, and the parties have offered none.
The Ninth Circuit held in Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995), citing
Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491
(1977)(other citations omitted), that a prison regulation prohibiting
disrespectful language, though facially valid, was unconstitutional as applied
to a prison grievance because it unnecessarily burdened a prisoner's
"fundamental right of access to the courts." The prisoner in Bradley
was disciplined for using "disrespectful" language in a written
grievance complaining about a prison employee's conduct when he wrote:
Her [the guard's] actions
shows her misuse of her authority and her psychological disorder needs
attention. Then you wonder why things happen like that guard getting beat down?
I suggest you talk to this woman and have her act professionally instead of
like a child.
Bradley, 64 F.3d at 1278.
The Bradley court reasoned that the rule,
though "rationally related to a legitimate interest," was an
exaggerated response when balancing the "importance of the prisoner's
infringed right against the importance of the penological interest served by
the rule." 64 F.3d at 1280. However,
the Supreme Court in Shaw v. Murphy, addressing a separate First Amendment
issue, implicitly disapproved of Bradley's balancing act and affirmed that Turner is the test for First Amendment
claims, without regard to the purpose of the communication. Shaw v. Murphy, 532
U.S. 223, 229 n.2, 149 L. Ed. 2d 420, 121 S. Ct. 1475 (2001). In any event,
Bradley is not controlling in this Circuit, and this court declines to adopt
Bradley's blanket rule that discipline "merely for using hostile, sexual,
abusive or threatening language" in grievances is unconstitutional.
Bradley, 64 F.3d at 1281 (emphasis supplied).
Cases
involving discipline for false statements in grievances may also be instructive
because the plaintiff's statements here became insolent only after the
defendants determined the plaintiff had no evidence to support them. No doubt
the rumor was scandalous, but the defendants do not argue that the plaintiff
could not have reported Officer Drone's sexual misconduct if he had evidence
that it was true. Sexual misconduct by a prison employee on the job would be a
serious infraction and, the court presumes, an infraction reportable by inmates
in a grievance. Like the insolence issue, the court has found no Seventh
Circuit case discussing discipline for false accusations in a grievance, but a
few [*734] courts outside this Circuit have upheld such discipline, though
their analyses and conclusions differ. See Hancock v. Thalacker, 933 F. Supp.
1449, 1490 (N.D. Iowa, 1996)(proof by preponderance of evidence that grievance statements
knowingly false required to impose discipline); Curry v. Hall, 839 F. Supp.
1437, 1440 (D. Oregon, 1993)(no First Amendment right implicated by discipline
for false statements in grievances; actual malice standard does not apply); see
also Wolfel v. Bates, 707 F.2d 932, 934 (6th Cir. 1983)(invalidating punishment
for false statements in petition, but only on grounds that the officials had
not found that statements false or maliciously communicated).
Following Ustrak's reasoning,
the court sees no reason why the insolence regulation cannot be applied to
statements in an inmate's grievance, just as it is to statements in an inmate's
letters.
Adopting the Ninth's Circuit's approach in Bradley would permit inmates to use
the grievance procedure for the purpose of abusing guards. ". . . The
grievance procedure is for the purpose of bringing issues to the attention of
the jail authorities, not a forum to make disparaging, degrading, abusive
comments about correctional staff." In re Parmelee, 2003 WL 222804
*8. The court concludes that the
insolence regulation may be constitutionally applied to inmates' statements in
grievances, provided that application passes the Turner test established by the
Supreme Court. That is, the application must be "reasonably related to
legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 96
L. Ed. 2d 64, 107 S. Ct. 2254 (1987).
Here, the
determination of whether the plaintiff's discipline passes that test turns in
large part on whether the plaintiff had any basis for making the allegation.
That question is easily resolved against him on the record. He does not
seriously dispute that he had no evidence that defendant Drone was having
sexual relations with other officers on her shift, and he admitted to defendant
Wyles and the Adjustment Committee that the statements were "only"
rumors. Construing the plaintiff's deposition liberally in his favor, he
included the rumor merely because he thought it might be true and wanted to include
everything bad he had seen and heard about Officer Drone. Yet he admitted that
he did not personally see correctional Officer Drone being intimate with
anyone. His speculation that the rumor might be true was based only on conversations he observed between
Officer Drone and other inmate's and officers (though he did not hear what was
said and cannot remember anyone's name), and the fact she had been staffed on
the unit (the "best housing unit in the whole joint") longer than the
typical 90 day shift. [See Plaintiff's Dep. pp. 24-31 (where he discusses the
reasons he put the rumor in the grievance]. The court need not determine in
general the quantum of evidence or scienter necessary for disciplining false
accusations of sexual misconduct, since the defendants here had ample reason to
conclude that the plaintiff knowingly made a scandalous accusation without any
factual basis.
Applying the Turner test, the
record compels the conclusion that the plaintiff's discipline was reasonably
related to the prison's legitimate interest in preventing manipulation and
harassment of its employees. The plaintiff's grievance spawned an
investigation, holding Officer Drone up to ridicule and a complete loss of
respect and authority as to both inmates and other officers. A correctional
officer without authority is a threat to the security of the institution.
Tolerating the plaintiff's statements, in light of the plaintiff's admissions
to defendant Wyles that they were only rumors, could lead to a general
breakdown of the authority and effectiveness of Officer [*735]Drone and other
officers facing bogus charges of sexual misconduct. It was reasonable for the
defendants to sanction the plaintiff for making such a scandalous allegation in
his grievance with no evidentiary support. The court could do the same under
Fed. R. Civ. P. 11 (b)(3), which requires allegations in pleadings (even a pro se pleadings) to "have
evidentiary support, or, if specifically so identified, are likely to have evidentiary
support" based on a reasonable inquiry by the pleader. Divane v. Krull
Electric Co., 319 F.3d 307 (7th Cir. 2003)(upholding district court's sanctions
against party filing counterclaim without reasonable inquiry or evidentiary
support); Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998)(Rule 11's purpose
"'is to deter baseless filings in the district court . . .'")(quoting
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). The court
according concludes that the defendants did not violate the plaintiff's
constitutional rights by disciplining him for statements in his grievances.
The
plaintiff argues that his statements were not false or insolent because he
labeled them as rumors, thus admitting up front he did not know if the rumors
were true. The plaintiff's grievance belies this characterization. His
statements, taken as a whole, clearly insinuate that the rumor was more than
just a rumor--the plaintiff implied that Officer Drone manipulated her
retention in the unit by having sexual relations with officers, and referred to
the rumor for corroboration. The defendants understandably took the allegations
seriously and launched an internal investigation. [Grievance Officer's Report
dated 7/7/99, attached to Complaint: "The allegations/accusations Mr. Hale
cites . . . are quite serious in nature. The matter has already been referred
to Internal Affairs for Investigation."]. In any event, as discussed
above, the defendants had a legitimate penological reason for disciplining the
plaintiff for
putting the rumor in his grievance, even if he identified it as a rumor.
Even if the
court found a constitutional violation, the defendants would be entitled to
qualified immunity. Government officials performing discretionary
functions are not liable unless they "violate clearly established statutory
or constitutional rights then known to a reasonable officer." Saffell v.
Crews, 183 F.3d 655, 658 (7th Cir. 1999), citing Harlow v. Fitzgerald, 457 U.S.
800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The analysis is a
"fact-specific question which depends upon the clearly established law at
the time." Hinnen v. Kelly, 992
F2d 140, 142-43 (7th Cir. 1993). Saffell, 183 F.3d at 658; Jones v. City of
Chicago, 856 F.2d 985, 994 (7th Cir. 1988). If conduct is based on an
objectively reasonable decision, qualified immunity does apply, even if that
conduct is later determined to be wrong. Saffell, 183 F.3d at 658. As already
stated, the court found no binding precedent on point addressing discipline for
false or insolent statements in grievances, and analogous cases apply different
approaches and reach different results. A reasonable officer could have objectively believed that
disciplining the plaintiff in this instance did not offend the constitution.
Retaliation for Exercising First Amendment Rights
Transfer to Medium Security Prison
The plaintiff does not dispute that Lincoln (a minimum security
prison at the time) was transformed to an all-female prison, making his
transfer inevitable. He argues instead that his transfer to Logan, a medium security
prison, rather than to another minimum security prison, constituted the
retaliation. Yet he does not dispute defendant Scott's averment that the
majority of men were transferred to [*736] Logan or Dixon, both medium security
prisons. He does not offer any examples of similarly situated inmates who were
transferred to a minimum security prison. Further, over two hundred inmates
were transferred to Logan as part of the transformation. The plaintiff was
transferred to Logan on September 20, 2000, and about 260 more inmates were
transferred there a little over two weeks later. The plaintiff asserts that
retaliation is obvious because he was transferred first, but no reasonable
inference of retaliation arises from this fact. Additionally, the plaintiff does
not point out any particular grievances or litigation that allegedly spurred
the retaliatory transfer. He alludes generally to his grievance and litigation
activities, but the grievances in the record go back to 1999, including his
"insolent" grievance, well over a year before he was transferred.
Further, the plaintiff provides no evidence to rebut the affidavit of Jeff
Hamilton, who was involved in the process of transferring the inmates, and who
avers that inmates were selected at random by the transfer coordinator's
office, with the exception of factoring in an inmate's list of documented
enemies. The transfer coordinator's officer communicated the assignments to Mr.
Hamilton, who then initiated the paperwork and forwarded it for the proper
signatures. [Hamilton Aff. para. 3-6]. The plaintiff counters that the warden's
signature is required for every transfer, but that does not address Hamilton's
assertion that the assignment was random. In sum, the plaintiff has failed to
produce any competent evidence that would allow a reasonable juror to conclude
that he was transferred in retaliation for his First Amendment activities.
Summary judgment must therefore be granted to the defendants on this claim.
Defendant Wildman
The plaintiff alleges that defendant Wildman retaliated against
the plaintiff for exercising his right of access to the courts by refusing him
copies of necessary legal documents and/or otherwise hindering his use of the
library. The defendants assert that the plaintiff has no evidence that
retaliation was a substantial or motivating factor in defendant Wildman's
alleged denial of photocopies, early library closing or other actions. They
point to the plaintiff's statements in his depositions where the plaintiff
admits that the denial of photocopies was only temporary and pursuant to what
Wildman stated was a state-wide policy against providing photocopies of cases
for inmates. [Plaintiff's Dep. 92]. The
plaintiff further stated that he learned later that there was no such statewide
policy, and that inmates were allowed such copies as long as they paid for
them. Id. He also averred that defendant Wildman would not let him make copies
when he had a negative trust balance, that once he was not permitted to use the
typewriter, and the library was closed too often. [Plaintiff's Dep. p.95].
The court
agrees that the plaintiff has failed to offer any competent evidence that could
permit a reasonable juror to infer defendant Wildman's actions were taken in
retaliation for his grievance and litigation pursuits. He does not dispute the
defendants' argument that she would have taken the same action regardless of
the plaintiff's litigation and that the photocopying policy and library hours
applied to all inmates, not just to the plaintiff. The plaintiff only repeats
his conclusory allegations, which were sufficient to overcome a motion to
dismiss, but not a motion for summary judgment. Summary judgment must therefore
be granted to the defendants on this claim as well.
IT IS THEREFORE ORDERED:
1) The defendants' motion
for summary judgment [d/e 53-1] is granted. Summary judgment is granted to the
[*737] defendants on all the plaintiff's claims. All pending motions are denied
as moot, and this case is closed, with the parties to bear their own costs;
2) If the plaintiff wishes
to appeal this dismissal, he may file a notice of appeal with this court within
30 days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for leave
to appeal in forma pauperis should set forth the issues the plaintiff plans to
present on appeal. See Fed. R. App. P. 24(a)(1)(C) . If the plaintiff does
choose to appeal, he will be liable for the $105 appellate filing fee
irrespective of the outcome of the appeal. Furthermore, if the appeal is found
to be non-meritorious, the plaintiff may also accumulate a strike under 28
U.S.C. 1915(g).
Entered this 17th day of March, 2003.
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 The
court assumes the plaintiff means "fraternizing."
n2 There
are two Adjustment Committee Reports attached to the complaint, one dated July
13, 1999 and one dated July 7, 1999.
n3 The
plaintiff alleges in his complaint he was demoted to C grade for one month and
B grade for one month. The difference is not relevant to the court's analysis.
n4 It is
apparent from the affidavits that the defendants' date of October 7, 2002, is
an error.
n5 The
proposed fact states the inmates were transferred to Logan or Taylorville, but
defendant Scott's affidavit states that they were transferred to Logan or
Dixon. The plaintiff does not dispute either statement. The court accepts the
statements of defendant Scott, which are made under oath.
n6 There is no affidavit or
anything else from Chaplain Tockey in the record.
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