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Seventh Circuit Vacates Summary Judgment in Retaliatory Discipline Case

The Seventh Circuit Court of Appeals reversed summary judgment for the defendants on a prisoner’s retaliatory discipline claim, finding the district court erred in failing to compel prison officials to produce a security video which would have been dispositive evidence.

Illinois state prisoner Kenneth Ogurek was charged with a disciplinary infraction for fighting with another prisoner. He told prison security investigator Jeffrey Gabor that the other prisoner started the fight and he wanted to charge him with assault. He also claimed that items had been stolen from his cell while he was in segregation due to the fight. He wanted Gabor to investigate the fight and theft.

After waiting ten days for Gabor to respond, Ogurek complained to the warden. The warden forwarded the complaint to Gabor, who berated Ogurek for contacting the warden.

Gabor told Ogurek that the video footage revealed Ogurek had started the fight. When Ogurek denied that allegation, Gabor issued him a misconduct report for impeding an investigation. Ogurek was found guilty and sanctioned with six months in segregation.

The disciplinary infraction was expunged on administrative appeal, however, because Gabor had violated both the procedure for issuing disciplinary reports and failed to substantiate his charge against Ogurek.

Ogurek then filed suit in federal court, alleging that Gabor had charged him with a disciplinary infraction in retaliation for complaining to the warden. He requested that the district court compel Gabor to produce the security video during discovery, and the judge ordered Gabor to respond within 17 days.

Gabor ignored the court’s order and failed to produce the video. Instead, he moved for summary judgment and the district court granted the motion before the video was produced. The district court concluded that Ogurek had presented no evidence to support his claim.

The Seventh Circuit reversed, holding the lower court had prematurely granted summary judgment to Gabor. “Ogurek’s claim that he had not started the fight and that Gabor had known this and was acting out of spite, was evidence,” the appellate court found.

If Gabor “based the disciplinary action that he instituted against Ogurek on information that he knew to be false,” he violated the First Amendment, the Court of Appeals explained.

While the video might “vindicate Gabor’s claim that Ogurek started the fight,” the Court observed that “Gabor’s failure to produce the video suggests the contrary – that the video vindicates Ogurek’s version of the fight.” See: Ogurek v. Gabor, 827 F.3d 567 (7th Cir. 2016).

Following remand, the case resolved in April 2017.

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Related legal case

Ogurek v. Gabor