Byrd v. Skeens

2022 IL App (4th) 210279-UNOTICE FILED
This Order was filed under
NO. 4-21-0279 July 19, 2022
Supreme Court Rule 23 and is
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
MARK BYRD, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Livingston County
KRISTINA SKEENS, JACON ALLEN, JON WILSON, ) No. 13MR110
RICHARD KLING, FRANK TURNER, JERRY )
DRONENBERG, and RANDY PFISTER, ) Honorable
Defendants-Appellees. ) Jennifer H. Bauknecht,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices DeArmond and Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding plaintiff had not established any error with
respect to the circuit court’s dismissal of his complaint.
¶2 Plaintiff, Mark Byrd, an inmate who has recently been transferred from Pontiac
Correctional Center (Pontiac) to Centralia Correctional Center, appeals from the circuit court’s
judgment dismissing his complaint against various Illinois Department of Corrections officials and
employees. On appeal, plaintiff argues this court should reverse the circuit court’s judgment to the
extent it found his claims insufficiently stated and/or barred, including his (1) retaliation claims
against Jon Wilson, Richard Kling, Frank Turner, and Jerry Dronenberg and (2) deliberate
indifference to retaliation claim against Randy Pfister. For the reasons that follow, we affirm the
circuit court’s judgment.
¶3 I. BACKGROUND
¶4 This action was commenced in September 2013 when plaintiff filed a pro se
complaint alleging his constitutional rights had been violated. Plaintiff later amended and
supplemented his complaint, adding claims against additional defendants. The action reached this
court on two previous occasions, both of which resulted in the need for further proceedings before
the circuit court. See Byrd v. Pfister, 2020 IL App (4th) 180826-U, ¶ 32 (dismissing the appeal for
lack of jurisdiction where the notice of appeal was premature); see also Byrd v. Skeens, 2017 IL
App (4th) 150698-U, ¶ 23 (reversing and remanding for further proceedings based upon the record
presented and arguments made). Now, the action is before this court for a review of the circuit
court’s judgment dismissing plaintiff’s complaint. Specifically, at issue in this appeal is whether
the circuit court correctly found plaintiff’s claims were insufficiently stated and/or barred,
including plaintiff’s (1) retaliation claims against Wilson, Dronenberg, Kling, and Turner and (2)
deliberate indifference to retaliation claim against Pfister. The following background is relevant to
the issues presented in this appeal.
¶5 In 2012, plaintiff was employed as a cell house gallery worker at Pontiac. On
September 18, 2012, plaintiff reported to a correctional officer named “DeLong” that a correctional
officer named “Pitchford” was bringing tobacco into the prison. Other unnamed correctional
officers were then “lead [sic] to believe [plaintiff] told on them for bringing tobacco into the
cellhouse.” After plaintiff made the tobacco report, Kling, a correctional officer, as allowed by
Wilson, another correctional officer, prevented plaintiff from leaving his cell to complete his work
assignments. Plaintiff spoke with DeLong about the situation, which resulted in Kling letting
plaintiff leave his cell in the mornings, but not in the afternoons, and telling the other inmates that
plaintiff had to be the first one to get his work equipment from the equipment room. On October
9, 2012, Wilson kneed plaintiff “very hard” in the upper right thigh while “in the chow hall for
afternoon feeds.” Plaintiff alleged Wilson, who used tobacco, kneed him because he “was upset
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with plaintiff for telling [DeLong] about officers bringing tobacco into the [prison].” Plaintiff filed
a grievance about the incident. On October 12, 2012, a correctional officer named “Burgess” told
plaintiff that he was told by Turner, another correctional officer, to retrieve plaintiff’s work clothes.
As a result, plaintiff was prevented from leaving his cell to complete his work assignments for
several days, and then, on October 15, 2012, plaintiff received and had to wear dirty work clothes
to complete his work assignment. Following these actions by the various correctional officers,
plaintiff experienced severe itching and bumps all over his body. Plaintiff met with a doctor who
indicated his symptoms could be stress related.
¶6 In 2014, plaintiff’s employment as a cell house gallery worker at Pontiac was set to
expire. On March 5, 2014, plaintiff spoke with a correctional officer named “Roth” about receiving
an extension on his work assignment. Roth indicated he would speak with a correctional officer
named “Thorson” regarding the matter. The next day, plaintiff spoke with Roth and Thorson about
the extension. During that conversation, Roth and Thorson reportedly stated Dronenberg, a
correctional officer who was allegedly responsible for “putting cellhouse workers in for”
extensions on work assignments, indicated he was not going to request an extension for plaintiff
because of plaintiff’s filing of the complaint which commenced this action. On March 17, 2014,
plaintiff sent an emergency grievance to Pfister, the warden of Pontiac, reporting Dronenberg’s
retaliatory refusal to request an extension on plaintiff’s work assignment. Plaintiff requested Pfister
grant him an extension on his work assignment and stop Dronenberg from retaliating against him.
Plaintiff explained he filed an emergency grievance instead of following the standard grievance
procedure because “to me being retaliated against is an ‘emergency.’ ” On April 4, 2014, Pfister
sent plaintiff a letter indicating he was denying plaintiff’s request for an extension on his work
assignment because plaintiff had already been granted an extension on a one-year assignment.
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Pfister also indicated plaintiff could, at the completion of his assignment, contact his counselor
and request to be submitted for other work assignments. On April 15, 2014, plaintiff was removed
from his position as a cell house gallery worker.
¶7 In his complaint, plaintiff alleged (1) Wilson retaliated against him for reporting
officer misconduct related to bringing tobacco into Pontiac by kneeing him in the thigh and by
allowing other officers to prevent him from leaving his cell to complete his work assignments;
(2) Kling retaliated against him for reporting officer misconduct relating to bringing tobacco into
Pontiac by preventing him from leaving his cell to complete his work assignments; (3) Turner
retaliated against him for filing a grievance against Wilson by preventing him from leaving his cell
to complete his work assignments for several days; (4) Dronenberg retaliated against him for filing
the complaint which commenced this action by refusing to request an extension on plaintiff’s work
assignment; and (5) Pfister acted deliberately indifferent to plaintiff’s constitutional right not to be
retaliated against by taking no action to stop Dronenberg from carrying out his retaliatory actions
after plaintiff filed the emergency grievance. Plaintiff sought compensatory and punitive damages
and costs from Wilson, Kling, Turner, Dronenberg, and Pfister.
¶8 Wilson, Kling, Turner, Dronenberg, and Pfister moved to dismiss plaintiff’s
complaint, arguing the claims alleged against them were insufficiently stated and/or barred by
sovereign immunity. After receiving written responses from plaintiff, the circuit court found all of
plaintiff’s claims were insufficiently stated and/or barred and, therefore, entered judgment
dismissing plaintiff’s complaint.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, plaintiff argues this court should reverse the circuit court’s judgment
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dismissing his complaint to the extent it found his claims insufficiently stated and/or barred,
including his (1) retaliation claims against Wilson, Kling, Turner, and Dronenberg and (2)
deliberate indifference to retaliation claim against Pfister. Wilson, Kling, Turner, Dronenberg, and
Pfister disagree. (We note plaintiff has not presented any argument concerning claims he raised
against Kristina Skeens and Jacon Allen, and Skeens and Allen have not taken any position in this
appeal.)
¶ 12 We begin with plaintiff’s contention that the circuit court erroneously found his
deliberate indifference to retaliation claim against Pfister was insufficiently stated and barred. We
find this issue is forfeited. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires any
contention of error to be supported by reasoned argument and relevant authority, and the failure to
comply with Rule 341(h)(7) results in the forfeiture of an issue (People ex rel. Illinois Department
of Labor v. E.R.H. Enterprises, 2013 IL 115106, ¶ 56, 4 N.E.3d 1). Here, plaintiff’s contention of
error is not supported by any reasoned argument or relevant authority in violation of Rule
341(h)(7). Accordingly, the issue is forfeited, and we need not further consider plaintiff’s
contention of error.
¶ 13 Next, we turn to plaintiff’s contention that the circuit court erroneously found his
retaliation claims against Wilson, Dronenberg, Kling, and Turner were insufficiently stated. To
establish a first amendment retaliation claim, an inmate must “prove that (1) he engaged in an
activity protected by the first amendment, (2) he suffered a deprivation likely to deter similar first
amendment activity in the future, and (3) his protected activity was at least a motivating factor in
[the defendant’s] decisions to take the retaliatory actions.” Fillmore v. Walker, 2013 IL App (4th)
120533, ¶ 37, 991 N.E.2d 340.
¶ 14 Plaintiff initially contends, citing Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009),
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the circuit court erroneously considered, and this court in its de novo review (Cahokia Unit School
District No. 187 v. Pritzker, 2021 IL 126212, ¶ 24, 184 N.E.3d 233) need not consider, whether
he sufficiently alleged the second and third elements of a first amendment retaliation claim at the
pleading stage. We disagree. Contrary to plaintiff’s contention, the Bridges court did not hold that
only the first element of a first amendment retaliation claim should be considered at the pleading
stage. In fact, the Bridges court specifically considered whether the second and third elements—
under the federal pleading standard—were sufficiently stated. Bridges, 557 F.3d at 552-53.
Accordingly, we reject plaintiff’s contention that the circuit court erroneously considered, and this
court need not consider, whether he sufficiently alleged the second and third elements of a first
amendment retaliation claim at the pleading stage.
¶ 15 When considering the sufficiency of plaintiff’s first amendment retaliation claims
under section 2-615 of the Code of Civil Procedure (735 ILCS/5/2-615 (West 2018)), “the critical
question is whether the allegations in the complaint, construed in the light most favorable to the
plaintiff, are sufficient to state a cause of action upon which relief may be granted.” Doe-3 v.
McLean County Unit District. No. 5 Board of Directors, 2012 IL 112479, ¶ 16, 973 N.E.2d 880.
“In making this determination, all well-pleaded facts must be taken as true.” Id. However,
“[b]ecause Illinois is a fact-pleading jurisdiction, a plaintiff must allege facts, not mere
conclusions, to establish his or her claim as a viable cause of action.” Napleton v. Village of
Hinsdale, 229 Ill. 2d 296, 305, 891 N.E.2d 839, 845 (2008). “Legal conclusions and factual
conclusions which are unsupported by allegations of specific facts will be disregarded in ruling on
a motion to dismiss.” Cummings v. City of Waterloo, 289 Ill. App. 3d 474, 479, 683 N.E.2d 1222,
1225 (1997).
¶ 16 Common amongst plaintiff’s first amendment retaliation claims against Wilson,
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Kling, and Turner is the absence of sufficient factual allegations showing plaintiff’s purported
protected activity was at least a motivating factor in those defendants’ decisions to take the
allegedly retaliatory actions. With respect to the claim against Turner, there are no allegations
suggesting Turner was aware of, or acted in response to, plaintiff’s grievance against Wilson. As
for the claims against Kling and Wilson, there is an allegation that some unnamed correctional
officers were led to believe plaintiff had made a report of officer misconduct related to tobacco
use. We find this vague allegation is insufficient to suggest Kling and Wilson were aware of, and
acted in response to, plaintiff’s report. There is also an allegation that Wilson, at least as it relates
to the purported kneeing incident, acted because of plaintiff’s tobacco report. We find this
conclusory allegation is insufficient to suggest Wilson was aware of, and acted in response to,
plaintiff’s report. While the alleged actions of Wilson, Kling, and Turner followed the purported
protected activity of plaintiff, we find the timing of the events, without more, insufficient to suggest
Wilson, Kling, and Turner were aware of, and acted in response to, the tobacco report. Absent
sufficient allegations to show plaintiff’s purported protected activity was at least a motivating
factor in the decisions to take the alleged retaliatory actions, we conclude the retaliation claims
against Wilson, Kling, and Turner are insufficiently stated.
¶ 17 We similarly conclude the remaining claim, the first amendment retaliation claim
against Dronenberg, is also insufficiently stated. Specifically, we find there is an absence of
sufficient factual allegations to show plaintiff suffered a deprivation likely to deter similar first
amendment activity in the future. While plaintiff alleged Dronenberg, who was allegedly
responsible for “putting cellhouse workers in for” extensions on work assignments, refused to seek
an extension of his job assignment for a retaliatory reason, plaintiff then explained how he was
able to seek an extension from Dronenberg’s supervisor, Pfister, after Dronenberg’s alleged
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refusal, a request which was ultimately denied based upon an undisputed nonretaliatory reason. In
fact, we note a case cited by plaintiff on appeal, Babcock v. White, 102 F.3d 267, 275 (7th Cir.
1996), states, “the ultimate question is whether events would have transpired differently absent the
retaliatory motive.” Under these circumstances, we conclude the retaliation claim against
Dronenberg is insufficiently stated.
¶ 18 In summary, we conclude plaintiff has not established any error with respect to the
circuit court’s dismissal of his complaint.
¶ 19 III. CONCLUSION
¶ 20 We affirm the circuit court’s judgment.
¶ 21 Affirmed.
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