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Waldera v. TTA

United States District Court, E.D. Wisconsin

May 9, 2019

BARRY TTA, Defendant.



         Nathan Waldera, a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that Barry Casetta, a correctional officer at Kettle Moraine Correctional Institution (“KMCI”), violated his civil rights. I screened the complaint and allowed Waldera to proceed on a claim that Casetta issued him a conduct report in retaliation for engaging in activity protected by the First Amendment. Before me now is Casetta's motion for summary judgment.

         I. BACKGROUND

         On September 27, 2017, Waldera slipped and fell in a KMCI bathroom. He came out of the bathroom holding his knee and told Officer Randolph Merkes that he slipped on the wet floor. Waldera claims that he also informed Merkes that the faucets on the sinks in the bathroom were faulty and caused water to pool on the floor.

         Waldera was taken to the Health Services Unit for medical evaluation. While Waldera was receiving treatment, Casetta collected his belongings. In the course of doing so, Casetta discovered a folder containing sections from the Milwaukee Journal Sentinel, which Casetta suspected had been removed from the institution's library. Casetta confiscated these sections. When Waldera returned from the Health Services Unit and discovered that his property was missing, he went to talk to Casetta. Casetta then questioned him about his possession of the sections of the newspaper. Waldera told Casetta that he had the librarian's permission to take these sections, which were from newspapers that were to be thrown away. Waldera states in his declaration that he did not believe Waldera and concluded that Waldera must have stolen the newspaper sections from the library. (The librarian who Waldera claimed granted him permission to take the newspaper sections had left the institution and was not available for questioning.)

         On October 2, 2017, Casetta wrote Waldera a conduct report charging him with possession of contraband. In his complaint, Waldera alleged that he believed Casetta wrote this conduct report to retaliate against him for complaining to staff about the bathroom faucets. ECF No. 1 at 4. In his materials in opposition to Casetta's motion for summary judgment, however, Waldera suggests that Casetta had a different reason to retaliate against him. Specifically, Waldera states that he heard from a teacher at the KMCI school that Casetta believed Waldera was lying about his military service and that Casetta was “after [his] job” as a tutor at the school. ECF No. 32 at 5. Waldera states that, when Casetta confronted him about the newspapers, Casetta “went on a profane rant.” Id. at 18. At that point, Waldera told Casetta that he intended to file inmate complaints against him. Id.

         After Casetta wrote Waldera the conduct report, Officer J. McInnis found plaintiff guilty of possession of contraband. McInnis sentenced Waldera to 10 days without common-area privileges and recommended that Waldera be removed from his job in the library.

         On or around October 5, 2017, plaintiff filed two inmate complaints regarding these events: one for his slip and fall and another for Casetta's “profane language” and “aggressive behavior.” Docket No. 1 at 3-4. These inmate complaints did not result in relief.


         Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law.” Fed.R.Civ.P. 56(c); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). The movant bears the burden of establishing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court grants summary judgment when no reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         Waldera claims that Casetta wrote the conduct report to retaliate against him for engaging in activity protected by the First Amendment. To prevail on such a claim, he must provide evidence that would allow a reasonable jury to find that: (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was “at least a motivating factor” in the defendant's decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009). If the plaintiff establishes these three elements, “the burden then shifts to the defendants to show that they would have taken the action despite the bad motive.” Mays v. Springborn, 719 F.3d 631, 635 (7th Cir. 2013).

         With respect to the first of these elements, it is well established that filing a non-frivolous prison grievance is constitutionally protected activity. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015). However, Waldera did not file his grievances until after Casetta wrote him the conduct report. Still, Waldera contends, the conduct report could have been retaliatory because Waldera told Casetta that he intended to file the grievances during the same conversation in which Casetta wrote him the conduct report. However, the Seventh Circuit has observed that “it seems implausible that a threat to file a grievance would itself constitute a First Amendment-protected grievance.” Bridges, 557 F.3d at 555 (emphasis in original). Thus, I doubt that Waldera's threat to file grievances against Casetta counts as activity protected by the First Amendment.

         But even if Waldera's threat was protected, Waldera has not pointed to evidence supporting his claim that it was a motivating factor in Casetta's decision to write the conduct report. Waldera does not claim that after he told Casetta that he intended to file grievances, Casetta attempted to dissuade him from doing so by threatening him with the conduct report. Moreover, by the time Waldera told Casetta that he intended to file grievances, Casetta had already confiscated the newspaper sections as contraband and questioned Waldera about them. In other words, by the time of Waldera's threat, Casetta was already poised to write the conduct report. Thus, his doing so shortly after Waldera made the threat is not suspicious.

         Waldera points out that immediately after he limped out of the bathroom he complained to Merkes about the faucets. Waldera speculates that Merkes told Casetta what he said and that therefore Casetta was aware of his complaint about the faucets at the time he initiated his investigation into Waldera's possession of the newspaper sections. However, the idea that Casetta would retaliate against Waldera for complaining about the bathroom faucets is extremely implausible. It is highly unlikely that a correctional officer would take personal offense at an inmate's complaint about a bathroom faucet, and Waldera points to no evidence suggesting that Casetta was unusually sensitive to complaints about prison facilities. Thus, even if Waldera's oral complaint to Merkes was protected activity, and ...

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