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Ellis v. Schunk

United States District Court, W.D. Wisconsin

May 4, 2018

MONTRELL L. ELLIS, Plaintiff,
v.
SERGEANT SCHUNK, HILLARY BROWN, DARCY ZIELER, MARIO CANZIANI, and REED RICHARDSON, et al., Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge

         On October 19, 2017, the court granted pro se plaintiff Montrell Ellis leave to proceed on a First Amendment claim against Sergeant Schunk. Currently before the court are Schunk's motion to dismiss (dkt. #15), to which Ellis responded with two motions of his own, each asking the court to deny Schunk's motion (dkt. ##25, 26), as well as a motion for assistance in recruiting counsel (dkt. #13). For the reason that follow, the court will deny Schunk's motion to dismiss, as well as deny Ellis's request for assistance in recruiting counsel.

         ALLEGATIONS OF FACT[1]

During the time period relevant to Ellis's complaint, he was incarcerated at Stanley Correctional Institution (“SCI”), where Schunk was working as a sergeant.

         On February 22, 2015, Ellis received permission from Sergeant Schunk to borrow some scotch tape from a fellow inmate. Upon receiving the tape, however, Ellis claims Schunk then questioned the two inmates about what they had just passed, and he made Ellis return the tape. As he walked away afterward, Ellis told the other inmate that he planned to write an inmate complaint about the incident. Apparently overhearing Ellis, Sergeant Schunk called the inmates back to the officers' station, and he asked Ellis what he had said. When Ellis repeated his intention to file a complaint, Schunk then allegedly responded that he would start writing Ellis conduct reports.

         As planned, Ellis wrote a complaint about the incident that same day, but did not file it at that time. He learned that Schunk had also written him up in a conduct report for disruptive conduct and disobeying orders the following day, February 23, 2015, when he was given a copy. Eventually, Ellis received fifteen days of room confinement without electronics as punishment for his conduct. Ellis formally filed his original inmate complaint some time later.

         OPINION

         I. Motion to dismiss (dkt. #15)

         The court granted plaintiff leave to proceed on a retaliation claim against Schunk. “An act taken in retaliation for the exercise of a constitutionally protected right violates the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). To state a claim for retaliation under the First Amendment, a plaintiff must allege that: (1) he was engaged in constitutionally protected activity; (2) the defendant's conduct was sufficiently adverse to deter a person of “ordinary firmness” from engaging in the protected activity in the future; and (3) the defendant subjected the plaintiff to adverse treatment because of the plaintiff's constitutionally protected activity. Gomez v. Randle, 680 F.3 d 859, 866-67 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009).

         Citing to the Seventh Circuit's comment in Bridges that it is “implausible that a threat to file a grievance would itself constitute a First Amendment-protected grievance, ” id. at 555, defendant argues that plaintiff does not have a constitutionally protected right to threaten to file grievances. In Bridges, the court declined to give the threat to file a grievance the same per se protection given to written grievances, but did not address whether the statement itself might warrant First Amendment protection. However, as the Seventh Circuit recognized a year later in Watkins v. Kasper, 599 F.3d 791, 794-95 (7th Cir. 2010), prisoners' speech is protected by the First Amendment so long as it is expressed “in a manner consistent with legitimate penological interests.” Id. at 794-95 (noting that the question of whether a prisoner's speech is protected is governed by the standard set forth in Turner v. Safley, 482 U.S. 78, 89 (1987)).

         While the timing of plaintiff's statement and the conduct report indicates that Ellis had not yet filed a grievance against Sergeant Schunk when he decided to issue Ellis a conduct report, that does not establish as a matter of fact that Schunk's decision to write him up for disorderly conduct was tied to a legitimate penological interest, as opposed to Schunk's simple desire to punish Ellis for acknowledging his plan to file a grievance. Fact-finding will, therefore, be necessary to get to the bottom of this question because Ellis's statement that he planned to file a grievance could constitute protected speech if he made it without violating prison policy. Given that Ellis has not pled any facts suggesting that he told Schunk he would file a grievance in a disruptive, loud or intimidating manner, and indeed allegedly did so only after being confronted and ordered to do so by Sergeant Schunk, the court cannot conclude at least at the pleading stage that Ellis's statement was not constitutionally protected.

         For the same reason, the court must reject defendant's qualified immunity argument. Because such a defense is usually very fact-intensive, dismissal at the pleading stage is generally considered inappropriate. Indeed, a plaintiff is not even “required initially to plead factual allegations that anticipate and overcome a defense of qualified immunity.” Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001) (quoting Jacobs v. City of Chi., 215 F.3d 758, 765 n.3 (7th Cir. 2000)). This makes Rule 12(b)(6) “a mismatch for immunity and almost always a bad ground for dismissal.” Id. at 652 (quoting Jacobs, 215 F.3d at 775(Easterbrook, J., concurring)).

         This is not to hold that qualified immunity is no defense provided the unlawfulness of the government official's conduct as pled is clearly established, but then the government official could be entitled to qualified immunity, even if the defense is asserted. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). At this point, where the circumstances surrounding Ellis's threat to file a grievance against Schunk are unclear, the court cannot determine whether or not Schunk's decision to punish Ellis was contrary to clearly established law.

         II. Motion for assistance in recruiting ...


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