Kenneth Ogurek v. Jeffrey Gabor

In the
United States Court of Appeals
For the Seventh Circuit
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No. 15-1151
KENNETH OGUREK,
Plaintiff-Appellant,
v.
JEFFREY GABOR,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:13-CV-01423-JES-TSH — James E. Shadid, Chief Judge.
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SUBMITTED JUNE 15, 2016 — DECIDED JUNE 27, 2016
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Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit
Judges.
POSNER, Circuit Judge. The plaintiff, Kenneth Ogurek, a
prisoner in Illinois’s Pontiac Correctional Center, seeks dam-
ages under 42 U.S.C. § 1983 from Jeffrey Gabor, one of the
prison’s security investigators, who the plaintiff claims vio-
lated the First Amendment by charging him with a discipli-
nary infraction in retaliation for Ogurek’s having com-
plained about Gabor to the warden. The district judge grant-
2 No. 15-1151
ed summary judgment in favor of the defendant on the
ground that Ogurek had presented no evidence contradict-
ing Gabor’s denial that his charging Ogurek with an infrac-
tion was motivated by Ogurek’s complaint to the warden.
In a fight with another inmate Ogurek had received cuts
requiring stitches, and he was charged (not by Gabor) with a
disciplinary infraction. He says he told Gabor that he want-
ed to charge the inmate, who he said had started the fight,
with assault; also that items of personal property had been
stolen from his cell while he was in segregation, where he’d
been placed after the fight. He wanted Gabor to investigate
both the fight and the theft, and when ten days elapsed with
no response he complained to the warden, who forwarded
the complaint to Gabor—who according to Ogurek berated
him for complaining to the warden and told him that after
watching a security video of Ogurek’s fight with the other
inmate he had determined that Ogurek had started it. When
Ogurek denied this, Gabor filed a disciplinary report against
him for impeding an investigation, which led to an adminis-
trative proceeding that resulted in Ogurek’s remaining in
segregation for six months. But an administrative appeal of
Gabor’s report resulted in its being expunged, on the ground
that Gabor had both violated the procedure for issuing dis-
ciplinary, see 20 Ill. Admin. Code § 504.30, and failed to sub-
stantiate his charge against Ogurek. This suit followed.
During discovery Ogurek sought by motion the security
video that Gabor had claimed to be the basis of his discipli-
nary action. The district judge ordered Gabor to respond
within 17 days, which he didn’t do, instead moving for
summary judgment. The judge granted the motion, and
dismissed the suit, before the video surfaced, in the mistaken
No. 15-1151 3
belief that Ogurek had presented no evidence in support of
his claim. The district judge erred in refusing to compel pro-
duction of the security video, which would have been the
dispositive piece of evidence in this case. See Diaz v. Da-
vidson, 799 F.3d 722, 724 (7th Cir. 2015); Bryant v. City of Chi-
cago, 746 F.3d 239, 242–43 (7th Cir. 2014).
The First Amendment of course creates a right to “peti-
tion the Government [which by interpretation of the due
process clause of the Fourteenth Amendment has been held
to include state and local government] for a redress of griev-
ances,” and Ogurek’s letter to the warden was such a peti-
tion. Gabor violated the amendment’s right of redress if he
based the disciplinary action that he instituted against Ogu-
rek on information that he knew to be false. The video might
vindicate Gabor’s claim that Ogurek started the fight with
the other inmate and thus was properly subject to discipli-
nary action, but Gabor’s failure to produce the video sug-
gests the contrary—that the video vindicates Ogurek’s ver-
sion of the fight. Niehus v. Liberio, 973 F.2d 526, 530–31 (7th
Cir. 1992). The judge erred, moreover, in saying that Ogurek
had presented no evidence in support of his claim—his as-
sertion that he had not started the fight with the other in-
mate, and that Gabor had known this and was acting out of
spite, was evidence.
Another panel of this court noted in a recent case that “if
Meyer [a prison guard] set out to punish Herron [a prisoner]
for his grievances, then a price has been attached to speech“;
but continuing the panel said that “many decisions assume
that essentially everything a prisoner says in the grievance
system—if not everything a prisoner says to a guard—is pro-
tected by the First Amendment. … These decisions do not
4 No. 15-1151
discuss a parallel line of cases about grievances that public
workers make about the conditions of their employment.
That line of cases attempts to distinguish statements on top-
ics of public importance (protected) from personal gripes
(unprotected) and statements that disrupt the workplace (al-
so unprotected).” Herron v. Meyer, 820 F.3d 860, 863–64 (7th
Cir. 2016).
Yet the line of decisions criticized in Herron includes two
earlier decisions of this court that are in tension with, yet are
not cited in, that case. One is Watkins v. Kasper, 599 F.3d 791,
795 (7th Cir. 2010) (“the dynamics of the government’s rela-
tionships with prisoner-employees and with public employ-
ees are too dissimilar to transfer the public concern test to
the prison context”); the other is Bridges v. Gilbert, 557 F.3d
541, 551 (7th Cir. 2009) (“we conclude that a prisoner’s
speech can be protected even when it does not involve a
matter of public concern”). No matter; an inmate’s complaint
of being assaulted and injured by another inmate and then
framed by a guard to prevent the victim from obtaining any
redress is not a “personal gripe”; it is therefore a violation of
the Constitution under Herron’s rule and a fortiori under that
of Watkins and Bridges, as well as of similar cases in other
circuits cited in Bridges, supra, 557 F.3d at 551–52.
The grant of summary judgment in the defendant’s fa-
vor was thus premature, and so we reverse the judgment
dismissing the suit and remand the case to the district court
for further proceedings consistent with this opinion.
REVERSED AND REMANDED