## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Fill m ore v. Walker , 2013 IL App (4th) 120533

Appellate Court Caption AARON P. F I L L MORE, Plaintiff-Appellant, v. ROGER E. WAL KER, J R., DAVI D W. MI TCHEL L
, KENNETH L

. HAMI L TON, APRI L MOORE, KEN BA RTL EY, and L I NDA EL L I S, Def

endants-A

ppellees.

District & N o. Four th District Docke t No. 4-12-0533

Filed Modified upon
denial of r ehea

ring April 17, 2013

J une 26, 2013

Held (Note : This syl lab us

con st it ut e s no par t of the opi nio n of the cour t but has bee n pre

par ed by th e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action by a corr ectional cente r inmate seeking relief under the Civil Rights Act of 1871 for reta liation ag ainst him by corr ectional office rs for his complaints about prison conditions, the trial court proper ly ruled that section 1997e(e ) of the Prison L iti gat ion Reform Act of 1995 barr ed plaintiff from rec overing compensatory damag es, but the trial court err ed in finding that plai n t i ff fa i l ed to prove the chilling eff ect of the alleg ed
reta liat i o n, since the rele vant standard was not plaintiff’s persona l

rea ction, but the eff

ect the reta liation would have on an ordinary prisoner, not an extraordinar ily

litigious prisoner suc h as plaintiff.

Dec ision Under Review Appea l from the Circuit Court of Sang amon County
, No. 08-MR-59; the Hon. J ohn W. Belz, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d.Counsel on

Appea l Aar on Fillmore, of Pontiac, a ppellant pro se

.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, S olicitor Gene ral, and Br ett E. L eg ner and Elaine Wy der- Har shman, Assistant Attorney s Gene ral, of c ounsel), for appellee s.

Panel J USTI CE APPL ETON delivere d the judgme nt of the court, with opinion.
J ustices Pope and Kne cht conc urre d in the judgme nt and opinion.

OP INION

¶ 1 The plaintiff in this c ase is Aar on Fillmore, who was an inmate in Tamms Correc tional Center. The three defe ndants ar e L inda S. Ellis, former ly a corr ectional office r at Tamms, and David W. Mitchell and Kenne th L

. Hamilton, formerly the members of the adjustment committee at Tamms, the committee that deter mine d t h e guilt or innocenc e of inmates char g ed with disciplinary offe nses (20 I ll. Adm. Code 504.80(j) (2003))

. (Tamms has since been closed.) In count I V of his second amende d complaint, plaintiff soug ht relief ag ainst these defe ndants under section 1983 of the Civil Rights Ac t o f 1 8 71 (42 U.S.C. § 1983 (2006)) for r etaliatingag ainst him because of his complaints about prison conditions. ¶ 2 After dismiss ing, with prejudice
, all the counts of the second amende d complaint except for count IV (735 I L CS 5/2-615 (West 2010)), the trial court g rante d defe ndants’ motion for
summary judgme nt on count I V. Plaintiff appea ls from the summary judgme nt on that count. ¶ 3 In our de novo revie w (Pielet v. Pielet , 2012 I L112064, ¶ 30), we affirm the s ummary judgme nt in part and reve rse it in part. We ag ree with one of the points in defe ndants’ motion for summary

judgme nt but disagr ee w ith the other two points. ¶ 4 We ag ree that section 1997e(e ) of the Prison L itigation Reform Act of 1995 (PL RA) (42 U.S.C. § 1997e(e) (2006)) bars plaintiff f rom rec overingcompensa tory damag es. ¶ 5 We disag ree , howeve r, that plaint i ff fa i l ed t o exhaust his administrative reme dies by omitti ng to alleg e, in his g rieva nce, that Ellis reta liated ag ainst him for first-ame ndment activity

. A reg

ulat i o n o f the I llinois Depa rtment of Correc tions (DOC) require d that
g rieva nces state the “fa ctual details,” not leg al th eo ri es o r conclusions. 20 I ll. Adm. Code 504.810(b) ( 2003). ¶ 6 We also disag ree that defe ndants have clea rly shown plaintiff’s i n ab i l i t y t o prove the chilling eff

ect of the alleg ed reta liation. I t is unclea r that the disciplinary sanctions imposed
upon plaintiff would fail to chill an ordinary inmate from exercis ing his or her first amendment ri gh t t o petition the g overnme nt for the redr ess of g rieva nces (U.S. Const., amend. I ).

-2-¶ 7 I . BA CKGROUND

¶ 8 A. Alleg ations in the Text of Count I V ¶ 9 In count IV of the se cond ame nded complaint, plaintiff a lleg ed as follows. I n J une and J uly 2007, he complained to two senior corr ectional office rs, named Woods and Watts, that he had been “assa

ulted by the s h o we r door operated by c/o Ellis.” On J uly 17, 2007, Ellis told plaintiff she was g oing to write a false disciplinary repor t ag ainst h i m b ec au s e of his complaints ag ainst her. On J uly 18, 2007, plaintiff di d indeed rece ive a disciplinary repor t in which Ellis acc used him, falsely
, of committing the offe nses of contra band/unauthorized
proper ty and tra ding or

traff icking

. ¶ 10 On J uly 25, 2007, the adjustment committee, consisting of Mitchell and Hamilton, held

a disciplinary hear ing in plaintiff’s cell. After ref using plaintiff’s reque st to produce a video

rec ording that, acc ording to plaintiff, would have proved he had not committed the char g ed offe nses, Mitchell and Hamilton dismiss ed the char g e of contra band/unauthorized proper ty but found him g uilty of trading or traff icking

. They imposed punishment for that rema ining offe nse. ¶ 11 In their brief

, defe ndants descr ibe the punishment as follows:
“F illmore was disciplined with 15 day s in seg reg ation, a one-month reduc tion to C-g rade status, and one month of commissary restric tions. [C itation to rec ord.] The reduc tion in
g rade and commissary restric tion did not aff ect Fillmore beca

use his level of privileg es was g overne d by

Tamms’s B ehavior al L evel Sy stem (‘B L S’). [Ci tations to recor d.]
Ba sed on his place ment in disciplinary seg reg ation, Fillmore’s Be haviora l L evel was reduc ed to Be haviora l L evel One. [C itation to rec ord.] As a result, Fillmore experience d

a temporar

y loss of audiovisual and educational privileg es, and a temporar y reduc tion in
y ard time, s h o we rs per wee k, and commissary visits. [C itations to rec ord.] Fillmore
reg ained maxi mum privileg es on Fe bruar y 1, 2008, when he was promoted to Be haviora l L evel Thr ee. [Citation to record.]” ¶ 12 Plaintiff alleg es, in count I V, that Mitchell and Hamilton found him g uilty in retaliation for his testimony ag ainst Tamms officia ls in fede ral court and also in reta liation for previous gri ev ances he had filed. Paragraphs 44 to 49 of the second amende d complaint rea d as follows:
“44. After testifying ag ainst Tamms C-Max C.C. prison offic i al s i n the case of Gilbert v. Cook
, et al. No. 01-286-CJP
, United States District Court of Southern I llinois
, defe ndant Mitchell told plaintiff that if plaintiff ever rec eives a disciplinary repor t, that he wa s g oing to f

ind plaintiff g uilty

and impose punitive seg reg ation.
45. The J uly 17, 2007, disciplinary repor t was the only repor

t written ag ainst plaintiff since testifying a g ainst Tamms prison officia ls.
46. Def endants Mitchell and Hamilton stated on J uly 25, 2007, that plaintiff was g oing to be found g uilty of his J uly 17, 2007, disciplinary repo rt beca use plaintiff has filed g rieva

nces a nd made c omplaints ag ainst them.
47. Plaintiff has filed a g rieva nce (grieva

nce # TM-06-06- 04 4 ) p rior to defe ndant

-3-Mitchell hear ing a nd decidingthe J uly

17, 2007, disciplinary

repor t. 48. Def endants Mitchell and Hamilton delib er ately reta liated ag ainst plaintiff for

e xe r c is in g h is F ir st Amendment rig hts in filing g rieva nces (TM-06- 06

- 0 4 4 ) a

n d te s ti f y in g ag ainst prison officia ls.
49. Def endants Mitchell and Hamilton imposed punitive disciplinary action ag ainst plaintiff in an illeg al ac t of reta liation.”

¶ 13 B. Plaintiff’s Pursuit of Administrative Redre ss,

as Shown in the Exhi bits of His Second Amende d Complaint ¶ 14 On J uly 27, 2007, afte r DOC imposed the punishme n t up o n h i m , p l ai n t i ff filed a
g rieva nce, in which he alleg ed that the disciplinary repor t that Ellis wrote ag ainst him on J uly 18, 2007, was “fa

bricated” and “fa lse.” He further alleg ed that the adjustment committee’s decision “wa s [a] reta liatory act beca use [he ha d] filed g rieva

nces ag ainst the Commi ttee.” Among other for

ms of relief

, he soug ht the expungeme nt of the disciplinary repor t, f urther investigation of the issues he ra ised in his gr ievanc e, and disc iplinary action ag ainst Ellis. ¶ 15 The g rieva

nce office r, April Moore, found that the g rieva nce proce eding s had complied with the proce dural saf

eguards in DOC’s r

ules, and ther efor e she r ecommende d the denial of the g rieva

nce. T he wa

rden, K en B artley , concur red. ¶ 16 Plaintiff administratively appea led, and on November 7, 2007, the administrative revie w board likew ise rec ommended the de nial of t he grie vance . After revie wingall the ava ilable information and chec king for compliance with proce dural due-pr ocess g uidelin es , t h e administrative revie w board stated it was “re asonably satisfied” that plaintiff had committed the offe nse of trading or traff icking

. The Direc tor of DOC, Roge r E. Walker, J r., concur red in the denial.

¶ 17 C. Sum mary J udg ment on Count I V in the Trial Court ¶ 18 I n t he trial court, defe ndants filed a motion for summary ju d gm en t o n co u n t I V. Paragraph 4 of the motion rea ds: “De fenda nts move for summary judgme nt on the following
g rounds: First, the allege d adver se acts taken by Def endants and ag ainst Plaintiff wer e insufficient to ‘chill’ a p er s o n of ordinary firmness from eng ag ing in protec ted conduct. Second, Plaintiff is barr ed fr om rec overingcompensatory damag es.” ¶ 19 The trial court g rante d def en d an t s ’ motion for summary judgme nt on count I V. In its
summary judgme nt order, the court found a s follows: “(1) That prison officia ls may not re t ali ate ag ainst inmates for filing g rieva nces or otherwise c omplaining a

bout their conditions of confine ment. (2) That, under Thomas v. W alton
, 461 F. Supp. 2d 786 (2006), an alleg ed reta liatory act must be one that ‘could be said to have had t he effec t of deterring an inm ate of “of ordinary firmness” f

rom eng ag ing in similar ac tivity .’ (3) That the discipline and temporar y conseque nce s we re insufficient to chill Plaintiff’s first amendment rig hts and have the eff ect of ‘dete rring an inmate “of ordinary

-4-firmness” f rom eng ag ing in similar ac tivity .’ (4) In fac t, the rec ord shows that Plaintiff has filed three other lawsuits and filed twenty separ ate g rieva

nces since J ul y 17, 2007, and was not deter red in any way by Def endants’ c onduct.” ¶ 20 This appea l followed.

¶ 21 I I . ANALYSI S ¶ 22 A. Exhaustion of Admini strative Remedie s ¶ 23 For two rea sons, the trial co u rt grante d defe ndants’ motion for summary judgme nt on count I V of the second amende d complaint. The court acc epted both of the rea so n s t h at defe ndants had raised in their motion. First, on the authority of Th o ma s , t h e trial court conclude d t hat “the discipline and temporar y conseque nces wer e insufficient to chill Plaintiff’s first amendment rights and h av e t h e eff ect of deter

ring an inmate of ordinary firmness from eng ag ing in simil ar activity .” (Interna l quotation marks omitted.) Second, the
court conclude d that “Plaintiff [ was] barr ed by I llinois law from rec overing compensa tory damag es.” ¶ 24 On appe al, plaintiff conte nds that both of t hose reasons are fallacious. He c ites sever al fede ral case s holding that the mere i s s u an ce of a disciplinary repor t is in itself chilling beca use the threat of punishment is more than a de minimis act of reta liation (and in his case , he rec eived not only a disciplinary repor t but also punishment). See, e.g. , Brown v. Crowl ey , 312 F.3d 782, 789 (6th Cir. 2002) (“A rea sonable jury could conclude that being subjected to the risk of such se vere sanctions for raising a leg itimate c omplaint would de ter a person of ordinary firmness from continuing to eng ag e in that [ p rot ecte d] conduct.” (Interna l quotation marks omitted.)); Shariff v. P o o l e , 689 F. Supp. 2d 470, 479 (W.D.N.Y. 2010); Carter v. Dolce , 647 F. Supp. 2d 826, 834-35 (E .D. Mich. 2009). Also, plaintiff note s that the court never cited the “I llinois law” that supposedly barred h i m from rec overing
compensatory

damag es. ¶ 25 Initially
, in thei r brief, defe ndants do not addre ss those criticisms by plaintiff. I nstead, they raise an issue they did not raise in their motion for summary judgme nt: whether plaintiff exhausted his administrative reme dies. Section 1997e(a ) of the PL RA (42 U.S.C. § 1997e(a ) (2006)) require s an inmate to exhaust his or her administrative reme dies befor e bring ing an “ac tion *** with respe ct to prison conditions under section 1983.” Be cause plaintiff’s
g rieva nce acc us ed E l lis mere ly of writing a “fa bricated” and “fa lse” disciplinary repor t ag ainst him but did not add that her motive in doing so was to reta liate ag ainst him for firstamendment activity
, defe ndants take the position, on appea l, that plaintiff failed to exhaust his administrative remedie s. ¶ 26 Def

endants acknow ledg e that, afte r th e a d ju s tm e n t c o mm it te e (consisting of Mitchell and Hamilton) denied plaintiff’s g rieva nce, he acc used the committee of reta liation. In the space

rese rved for his response to the denial, he wrote that the d en i al wa s n o t hing more than a reta liation ag ainst him for the g rieva nces h e fi l ed ag ainst the committee in the past. Acc ording to defe ndants, howeve r, that was not the same as alleg ing reta liation by Ellis

. Def endants rea son: “[T] here is nothing to sug g est that Mitchell and Hamilton’s alleg ed

-5-reta liatory con duct can be im puted t o Ellis, or ot herw ise aler ted prison officia ls to a claim of reta liation by Ellis. Fillmore made an intentional decision to g rieve ret al i at i o n b y the adjus tment committee but not Ellis. There fore
, he did not exhaust his reta liation claim
ag ainst Ellis.” ¶ 27 Plaintiff h as a t wo fold response to defe ndants’ contention that he failed to exhaust his administrative reme dies. First, he sug g ests that defe ndants have too exacting a standard for the content of g rieva

nces. He a

rgues that, ac cordingto Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002), and Cannon v. W ashington
, 418 F.3d 714, 718 (7th Cir. 2005), his g rieva nce need not be “deta iled” and that, acc ording to Ree der v. Doe 5
, 507 F. Supp. 2d 468, 482 n.16 (D. Del. 2007), and Varel a v. De mm o n , 491 F. Supp. 2d 442, 448 (S.D.N.Y. 2007), his
g rieva nce need not even specific ally complain of “re taliation.” Second, he argues that the failure to exhaust administrative reme dies is an aff irmative defe nse t h at defe ndants have forf eited by failing to raise it in the trial court. See Hawthorne v. Village of Olympia Fields
, 204 I ll. 2d 243, 254 (2003). ¶ 28 Gene rally
, it is true t h at , i f a d efe ndant has an affirmative defense
, the defendant must plead it as an aff

irmative defe nse (735 I L CS 5/2-602, 2-613(d) (West 2008)) on pain of forf eiting it. Haake v. Board ofEducation for Glenbard Townshi p High School District 87
, 399 I ll. App. 3d 121, 140 (2010); Carlson v. City Construction Co.
, 239 I ll. App. 3d 211, 243 (1992). Case law, howe ver, r ecognizes an exception to that rule. I f t he af firmative de fense alre ady is appar ent on the fac e of the complaint, the defe ndant need not plead the aff irmative defe nse as an aff

irmative defe nse but inst ea d m ay challeng e the leg al sufficie ncy of the complaint, pursuant to section 2-615 of t h e C o d e of Civil Procedur e (735 I L CS 5/2-615 (West 2008)). People ex rel. Casey v. Health & Hospitals Gove rning Comm’n
, 69 I ll. 2d 108, 113-14 (1977); R&

B Kapital Dev elopment, LL C v. N orth Shore Community Bank & Trust Co.
, 358 I ll. App. 3d 912, 921 (2005); Senese v. Climatemp, Inc.
, 222 I ll. App. 3d 302, 317 (19 9 1 ) (t h e affirmative defe nse of laches can be raised in a section 2-615 motion for dismiss al if “(1) an unrea sonable delay appea rs on the fac e of the pleading
, (2) no sufficie nt

excuse for the delay appea rs or is pleade d, and (3) the mo t i o n specific ally points out the defe ct”)

. ¶ 29 For example, in Beahringer v. Page
, 204 I ll. 2d 363, 377 (2003), the “[p] laintiff’s failure
to exhaust his available administrative reme dies [was] appar ent from the fac e of t h e complaint.” There fore
, even though the defe ndants in Beahringer never pleade d in the trial court, and never argued in the trial court, that the plaintiff had failed t o exhaust his administrative reme dies ( id. at 370), the supreme court found a fa i l u re to exhaust administrative reme dies and aff irmed the section 2-615 dismiss al on that basis ( id. at 378). Given the motion for dismiss al pu rs u ant to section 2-615, the leg al sufficie ncy of the complaint was a question befor e the trial court, and beca use the complaint was self-ne g ating
, it was leg ally insufficien t

. Id. at 370 (“Since plaintiff’s complaint and attache d exhibi ts provide the requisite fac tual basis, we will addre ss this issue.”). But cf. 735 I L CS 5/2-615(a) (West 2008) ( “The [section 2-615] motion shall point out specific ally the defe cts complained of ***.”); Casey
, 69 I ll. 2d at 113-14 (if the aff irmative defe nse of laches is alre ady appar ent

on the fac e of the complaint, the defe ct can be raised by a motion for dismiss al for failure to state a cause of ac t i o n , p ro v ided that the motion specific ally points out the defe ct so as to

-6-g ive the plaintiff a rea sonable opportunity

to corre ct it by

amendment)

. ¶ 30 In the prese nt case , defe ndants contend that the failur e to e xh a u s t a d minist rative r emedies is appar ent from the fac e of plaintiff’s second amende d complaint and that, conseque ntly
, on the authority of Beahringer
, we should aff irm the dismiss al o f th e s e cond amende d complaint

even though, in the t ri al co u rt , defe ndants never raised the defe nse of failure to exhaust administrative reme dies. Pursuant t o B ea h ringer
, we will consider that defe nse. But cf. People v. Fiorini
, 143 I ll. 2d 318, 337 (1991) (the appellee s, i.e.
, the preva iling parties in the trial court, f

orfe ited the def

ense of failure to e x haust administrative reme dies bec ause the y

never raised that defe nse in the trial court); Gree r v. Illinois Housing Dev elopment Authority
, 122 I ll. 2d 462, 509 (1988) (the issue the appellee raised on revie w had to be “commensur ate with” an issue raised in the t rial court); In re Estate of Leichtenberg
, 7 I l l

. 2 d 545, 548-49 (1956) ( same). ¶ 31 I f DOC has a regulation presc ribing the contents of g rieva nces, we ref

er to the regulation
to find out what the g rieva nce must contain for purposes of the exhaustion of administrative

reme dies. “The leve l o f detail nece ssary in a g rieva nce to comply with the g rieva nce proce dures wi l l v ar y from sy stem to sy stem and claim to claim, but it is the prison’s require ments, and not the PL RA, that define the boundarie s of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). See also Strong
, 297 F.3d at 649 (“[T]he grieva nces must contain the sort of information that the administrative sy stem require s.”). Two of the case s that plaintiff cites, Strong and Cannon
, are distinguishable beca use, at the rele vant times in those case s, DOC had not y et promulg ated a regulation requiringany particula r amount of fac tual detail in g rieva

nces. Cannon
, 418 F.3d at 718 (“I llinois has not specif i ed any particula r level of detail require d for inmate g rieva nces ***.”); Strong
, 297 F.3d at 650 (“A s far as we can see, howeve r, I llinois has not established any rule or regulation presc ribing the contents of a

g rieva nce or the nec essar

y deg ree of fa ctual par

ticularity .”). ¶ 32 After the Seventh Circuit decide d Strong
, DOC promulg ated a regulation specify ing the require d contents of a g rieva nce. Section 504.810(b) (20 I ll. Adm. Code 504.810(b) (2003)) provides:
“The g rieva

nce shall contain fac tual details reg arding eac h aspec t of the offe n d er ’s complaint, including what happene d, when, wher e, and the name of eac h person who is the subject of or who is o t herw ise involved in the complaint. This provision does not prec l u d e an o ffe nder from filing a g rieva nce when the names of individuals are not known, but the offe nder must include as much descriptive information about th e individual as possible.” ¶ 33 Def

endants’ contention is that, in order to exhaust his administrative reme dies, plaintiff had to alleg e, i n his g rieva nce, “that the [di sciplinary ] repor t was issued in retaliation for [pl aintiff’s] protec ted activity .” (Emphasis in orig inal.) But we do not see how this

re gu lation, by its terms, require s plaintiff to state, in his g rieva nce, that Ellis “re taliat ed
ag ainst him for the first-ame ndment ac tivity of complaining about prison conditions,” or words to that eff

ect. Retaliation is not a factual detail ; ra t h er, it is a leg al theory or a conclusion that one might (or might not) draw from the fac tual details. I t is an infe renc e as to someone’s motivation or mental stat e, not a concr ete fac tual particula r such as “what

-7-happene d, when, where
, and the name of eac h person.” And t he re quirement of giving “as

much descr iptive information about the individual as possible” appea rs to be applicable only if “the na mes of the individuals are not known.” ¶ 34 Plaintiff’s g rieva nce “conta in[ ed] the sort of information that the administrative sy stem require [d] ,” or at least defe ndants have not pointed out the omission of any information that the “administrative sy stem” ( i.e.
, section 504.810(b)) require d. Strong
, 2 9 7 F.3d at 649. There fore
, defe ndants have not convince d us tha t p la in ti f f f a il ed to exhaust his administrative

reme dies in that respe ct. ¶ 35 Be s i d es , in so many words, plaintiff alleg ed reta liation by Ellis. He acc us ed h er o f “fa bricating” a disciplinary repor t ag ainst him. I f an inmate acc uses a corr ectional office r of “fa bricating” a dis ciplinary repor t ag ainst the i nmate, the accusation fairly implies that the

corr ectional of

fice r i s out to g et t he inm ate. A moderately curious g rieva

nce of fice r would ask why the cor rec tional office r supposedly had this retaliator

y animus ag ainst the inmate.

¶ 36 B. ADepr ivation L ikely To Dete r Simil ar F irst Amendment Activity in the Future ¶ 37 Def

endants point out that, to prove a prima facie case of reta liation for exercising a first amendment rig ht, plaintiff has to prove that (1) he en gaged in an activity protec ted by the first amendment, (2) he suffe red a deprivation likely to deter simil ar first amendment activity in the future, and (3) h i s p ro t ected activity was at least a motivating fac tor in defe ndants’ decisions to take the r etaliatory actions. See Gomez v

. Randle
, 680 F.3d 859, 866 (7th Cir. 2012). But see Fairley v. Andrews
, 578 F.3d 518, 525-26 (7th Cir. 2 0 0 9 ) (unless a fede ral
statute say s otherwise, proving but-for causation is part of the plaintiff’s burden in all actions premised on fede ral law). Def endants’ motion for summary judgme nt challeng ed the second element. ¶ 38 In arguing to the trial court that plaintiff had not suffe red a deprivation likely to deter him from complaining of prison conditions in the future, defe ndants cited Thomas ; and the court was persuade d th at Thomas entitled them to summary judgme nt. In Thomas
, 461 F. Supp. 2d at 789-90, the pl aintiff was an inm ate in Tamms Correc tional Center, and he bro u gh t a section 1983 action ag ainst a corr ectional office r named Hilliard. The plaintiff a lleg ed that Hilliard had reta liated ag ainst him for reque sting an investigation of an incident in which the plaintiff had been beate n by corr ectional office rs. Id. at 795. The alleg ed reta liation by Hilliard was twofold: (1) Hi l l i ar d ’s refusal to serve the plaintiff a lunch tray and (2) Hilliard’s subsequent filing of a disciplinary repor t statin g, fa l s el y , that the plaintiff had ref used to ac cept a

lunch tray

from Hilliard. Id. ¶ 39 The district court g rante d Hilliard’s motion for summary judgme nt beca use the plaintiff had “fa iled to produce any evidenc e that his alleg ed protec ted speec h was a subst antial, motivating fa ctor for

the alleg ed re taliation.” Id. at 796. ¶ 40 Then, in dicta
, the district court rema rked that, even if the rec ord disclosed any evidenc e of reta liation (and it did not, in the court’s opinion), the retaliation probably would be too trivial to amount to a constitutional viol ation. The c ourt explained:
“ ‘[A] court may deny an inmate leave to proce ed if the alleg edly reta liatory act is not one that coul d be said to have had the eff ect of deter

ring an inmate “of ordinary firmness”

-8-from eng ag ing in simil ar activity .’ [ Johnson v. Kingston
, 292 F. S up p

. 2 d 1146, 1152 (W.D. Wis

. 2003)] ( quoting Pieczy nski v. Duffy
, 875 F.2d 1331, 1333 (7th Cir. 1989) ). In Bart v. Telford
, 677 F.2d 622 (7th Cir. 1982), t h e co u rt cautioned fede ral courts ag ainst enter

taining reta liation claims over which ‘a cer tain air of the ridiculous hang s,’ and said, ‘It would trivializ e the First Amendment to hold that hara ssment for exercising the rig ht of fre e speec h was alway s actionable no matter how unlikely to deter a person of ordinary firmness from that exercise.’ Id. at 625. A number of sister circ uits have adopted a simil ar ‘de minimi s’ standard in evaluating reta liation claims in t h e prison

s etting. [C itations.] In this case , the Court is inclined to conclude that the re t al i at i o n alleg ed in Count 7 is subject to dismiss al under the de minimi s standard, g iven the trivial
nature of the alleg ed constitutional deprivation which obviously has not deter red Thomas fr o m b ri ng ing this suit, toge ther with the fac t that allowing such claims to proce ed i n fede ral court risks virtually en d l es s fede ral judicial interfe renc e in the operation of prisons. [C itation.] Howeve r, the Court is not require d to decide the question. Assuming for the sake of argument that the alleg ed reta liation amounts to a cog nizable violation of Thomas’s constitutional rig ht s u n d er 42 U.S.C. § 1983, Thomas has failed to produce evidenc e of reta liatory intent sufficie nt to withstand summary judgme nt.” Thomas
, 461 F. Supp. 2d at 796-97. ¶ 41 In the prese nt case , in g ranting defe ndants’ motion for summary judgme nt, the trial court relied on this dicta from Thomas

. On appea l, defe ndants insist that the trial court was corr ect that plaintiff suffe red no depr i v at i on likely to deter first amendment activity in the future. Def endan ts do not cite Thomas (this time), but they arg ue that “[t] he Seventh Circuit’s
treatment of the reta liation cla i m s ra i s ed in [ Bridges v. Gilbert
, 557 F.3d 541 (7th Cir. 2009),] is i nstructive.” ¶ 42 In Bridges
, the plaintiff was an inmate at the Wis consin Secure Prog ram Fa cility

. Id. at 544. Acc ording to the plaintiff, he had war ned a corr ectional office r that he was g oing to file

a g rieva nce ag ainst her unless she stopped kicking his cell door, turning the lights of his cell

on and off, and slamming his cell trap while he was sleeping. Id. at 554. For this war ning, the corr ectional office r alleg edly reta liated a g a in s t h im b y “ f il[ing] an unjustified disciplinary char g e, which another Def endant upg rade d to a ‘m aj o r offe nse.’ ” Id. at 555. Ultimately
, howeve r, the disciplinary char g e was dismiss ed, and for that rea son, the Seventh Circuit

re garde d the issuance of the disciplinary char g e as trivial and de minimis : “[a] s i n gl e reta liatory disciplinary char g e that is lat er d i s m issed is insufficient to serve as t he basis of

a § 1983 action.” Id. Wit hout punishment, there would be no injury and hence no deter renc e, the Seventh Circuit rea soned. “ ‘A tort to be actionable require s injury

. I t would trivializ e the First Amendment to hold that hara ssment for exercising the rig ht of fre e speec h was alway s actionable no matter how unlikely to deter a person of ordinary firmness from that exercise . . . .’ ” Id. (quoting Bart , 677 F.2d a t 625). ¶ 43 Def

endants sug g est that the fac ts in plai n t i ff’s case “lar g ely” trac k those in Bridges

. Def endants argue: “[T] he reta liation alleg ed by [pl aintiff] was a one-time occur renc e, based

on a single disciplinary repor t, an d i n v o l v ing a limit ed number of people. [C itation to

rec ord.] Fur

thermore
, in [pl aintiff’s] case the char g es wer e partially dismiss ed [i n t h at the
contra band/unauthorized proper ty charg e was deleted]. [C itati on to rec ord.] Thus a

-9-compar ison with the claims alleg ed in Bridges shows that the circ uit court did not er r in

holding that the reta liation a lleg ed was insuffic ient to deter a n inmate of ordinary firmness from eng ag ing in similar ac tivity .” ¶ 44 T h e t ro u b l e wi th this rea soning is that defe ndants identify cer tain incidental fac ts in Bridges that they reg ard as important but there is no text ual evidenc e that the Seventh Circuit
reg arde d those particula

r fac ts as important. In its discussion in Bridges
, the Seventh Circuit did not appea

r to attach any signific ance to whether the reta liation was a one-time occur renc e involving a “limited” number of people. The Seventh Circuit ne ver said that, in or der to be actionable under section 1983, reta liation h ad t o b e repeated and had to be inflicted by a multit ude of people. By that logic
, a one-time beating by a solitary corr ectional office r could
not be an actionable reta liation. Instead, the Seventh Circuit attache d signific ance to the fac t that the di sciplinary

char g e in that case had been di smissed, without the i mpositi on of any punishment: “A single reta liatory disciplinary char g e that is later dismiss ed is insufficient to

serve as the ba sis of a § 1983 ac tion.” Bridges , 557 F.3d at 555. ¶ 45 In the prese nt case , by contra st, not all the disciplinary char g es wer e dismiss ed. Plaintiff fac ed two cha rge s, and only one of the char g es, the char g e of contra band/unauthorized
proper ty , was dismiss ed. The adjustment committee found him g uilty of the other char g e, the char g e of trading or traff

icking
, and various officia ls of DOC punished him for that char g e. ¶ 46 And the punishment was considera bly more robust than the alleg ed reta liation of which the plaintiff complained in Thomas
, i.e.
, a corr ectional guard’ s ref usal to serve him a lunch tray on a si ng le occas i o n ( T h omas , 461 F. Supp. 2d at 795). I t took plaintiff s ix months to work his way back up to Be haviora l L evel Three
, and presumably he lost, or did not rec eive,
g ood-conduc t cre dits. ¶ 47 Gra

nted, the punishment was, as defe ndants say , temporar y , but surely defe ndants do not

mean to contend that punishment must be unending to have a chilling eff ect. Taking Bridges
at fac e value, all that matters is that the inmate was disciplined for complaining about prison condit ions. Bridges say s that “re taliatory discipline” is actionable under section 1983. Bridges
, 557 F.3d at 552. See also Boxe r X v. Harris
, 437 F.3d 1107, 1112 (11th Cir. 2006) (“F irst Amendment rig hts to fre e s p eech and to petition the g overnme nt for a redr ess of
g rieva nces are violated when a prisoner is punished for filing a g rieva nce conce rning the conditions of his imprisonment.”); Franco v. K el ly
, 854 F.2d 584, 590 (2d Cir. 1988). Discipline is not necessa

rily de minimis by

rea son of beingtemporar y

. ¶ 48 By discounting the discipline imposed on plaintiff, by arguing that such discipline would be unlikely to deter an inmate of ordinary firmness, def en d ants put themselves, or at least their employ er, in an untenable position. Essentially
, d ef en d an ts sug g est that an ordinary inmate would consider DOC’s disciplinary sanctions for trading or traff icking to be “trivial”

or “de minimi s.” Thomas
, 4 61 F. Supp. 2d at 797. They imply that a “ce rtain air of the ridiculous” hang s over any claim that the discipline DOC presc ribes for thi s misconduct would likely deter an ordinary inmate–wher eas discipline, by its very nature , is calc ulated
to deter inmates and to chang e their behavior

. (Interna l quotation marks omitted.) Id. at 796. ¶ 49 And y et plaintiff has not be en dete rre d, defe ndants observe

. Since J uly 17, 2007, when Ellis wrote her disc iplinary repor t, he has filed 20 grieva

nces a nd 4 lawsuits.

-10-¶ 50 Even so, that mere ly shows that plaintiff is extraordinarily litigious. H is p ersona l rea ction

to the alleg ed reta liation is not the question. The rele v an t s t an d ar d is not subjective, but objective: t h e ef

fect the retaliation would have on an ordinary prisoner. Bridges
, 557 F.3d
at 555. That plaintiff has continued to f ile g rieva nces and lawsuits arguably shows he is a

n inmate of more than o rd i n ary firmness. His individual behavior does not nece ssarily alig n with the objective standard. See Brodheim v. Cry
, 584 F.3d 1262, 1274 (9th Cir. 2009); Gill

v. Pidlypchak
, 389 F.3d 379, 384 (2d Cir. 2004). I f the test wer e whether the plaintiff-inmate subjectively was chilled, no inmate could obtain judicial relief from reta liation ag ainst first amendment activity
, beca use the very filing of the section 1983 lawsuit would prove that the
reta liation was not chilling. ¶ 51 So, we are unconvince d that plai n t i ff cl ea rl y i s unable to prove the tendenc y of the alleg ed reta liation to chill ordinary inmates from petitioning the g overnme nt for the redr ess of g rieva nces. In our de novo re v i ew , we find that defe ndants failed to car ry their initial burden in the summary judgme nt proce dure: they failed to establish plaintiff’s clea r inability to prove that the punishment he inc urre d, ostensibly for tra ding or traff icking , would deter

an inmate of ordinary firmness from complaining further of prison conditions. See W illiams
, 316 I ll. App. 3d at 688-89; Bart , 677 F.2d at 625.

¶ 52 C. Causation ¶ 53 The members of the adjustment committee, Mitchell and Hamilton, argue that we should aff irm the summary judgme nt in their favor beca use plaintiff “ca

nnot show causation, wher e [he] has not offe red evidenc e establishing that the alleg ed reta liatory motive was a ‘nec essar y condition’ for the adjustment committee to find him g uilty .” See Kidwell v. Eisenhauer
, 679 F.3d 957, 965 ( 7th Cir. 2012). ¶ 54 But plaint i ff h ad n o o cc as i o n t o o ff er such evidenc e, beca

use, in their motion for
summary judgme nt, defe ndants did not challeng e causation. See W illiams v. Co venant Medic al Center
, 316 I ll. App. 3d 682, 689 (2000); 4 Richard A. M ichae l, I llinois Practice § 38:5, at 319-20 (2d ed

. 2 0 1 1 ). Of the three elements of plaintiff’s prima facie case , they challeng ed only

the chilling e ffe ct of the reta liation. I f t he movant could s eek and obtain a
summary judgme nt on one basis and then, on appea l, defe nd the summary j u d gm en t on a wholly differ ent basis that the m ovant never raised in the t rial court, thereby deprivingthe opposing party of the opportunity to respond with evidenc e, the movant could make the
summary judgme nt unassailable on appea l simply by sandbag g ing i n t h e trial court. “Employing the [forfeiture ] rule ag ainst an appellee is particula rly apt ‘if the opposing party could have introduced evidenc e to contest or ref ute the asser

tions made on appea l, had he an opportunity to do so in the trial court.’ ” Evans v. United Bank of Illinois, N.A.
, 226 I ll. App. 3d 526, 531 (1992) (quoting In re Marriage ofRodriguez
, 131 I ll. 2d 273, 279 (1989))

. See also Genus v. Pride Container Corp.
, 141 I ll. App. 3d 947, 951 (1986) (“The other issues of fac t which [the movant-appellee ] addresses in its briefs on appea l c annot support the entry of summary judgme nt on this motion beca use they wer e not proper ly raised for consideration on the motion for summary judgme nt.”). ¶ 55 Ag ain, the three elements of the prima facie case are as follows: (1) plaintiff eng ag ed in

-11-activity protec ted by the first amendment, (2) he suffe red a deprivation likely to deter simil ar

activity in the future, and (3) his protec ted activity motiv at ed d ef en d ants to take the retal iatory action. See Kidwell
, 679 F.3d at 964. In their motion for summary judgme nt, defe ndants did not challeng e either (1) or (3); they challeng ed only (2). Be cause the issue of

causation was not befor e the trial court in the summary judgme nt proce eding
, it is not befor e us, either. See Gree r , 122 I ll. 2d at 509; Kravis , 60 I ll. 2d at 147; Leichtenberg , 7 I ll. 2d at 549; Evans , 226 I ll. App. 3d at 530; Genus , 141 I ll. App. 3d at 951.

¶ 56 D. Compensatory Damag es ¶ 57 Def

endant s co n t en d t h at , u n d er s ec t i o n 1 9 9 7 e( e)
, p l aintiff cannot rec over a ny compensatory damag es, beca use he suffe red no phy sical injury from their alleg ed reta liation. Section 1997e(e ) provides: “No f eder al civil action may

be brought by

a prisoner confine d in a jail, prison, or other corr ectional fac ility
, for mental or emotional injury suffe red while i n custody without a prior showing of phy sical i njury .” 42 U.S.C. § 1997e(e ) (2006). (B u t wher e is the “fe dera l civil action”? An “ac tion” is a “judicia l p ro ceeding .” Bla ck’s L aw Dictionary 28 (7th ed. 1999). I t would seem that, althoug h plaintiff’s action is pr emised on

a fede ral statute (sec tion 1983), it is a state-c ourt action–a proce eding i n s t at e co urt–not a fede ral action. In any event, we need not resolve that question, since none of the parties raise it.) ¶ 58 Plaintiff argues that “[a] deprivation of First Amendment ri gh t s s t an d i n g al o ne is a
cog nizable injury ” for which he can rec over compensa tory damag es. Rowe v. Shake
, 196 F.3d 778, 781 (7th Cir. 1999). Plaintiff is corr ect that, if a state actor deprive s him of his first amendment rig hts, he can rec over damag es for this deprivation in itself as distinct from any emotional distress he mig ht have suff ere d as a result of the depriva tion; but these damag es will be nominal rather

than compensatory

. Calhoun v. DeTella , 319 F.3d 936, 940- 41 (7th Cir. 2003); Shatner v. Page
, No. 00-0251-DRH, 2009 U.S. Dist. L EXI S 8324, at * 8 3 -84 (S.D. I ll. Fe b. 4, 2009). There fore
, we hold that the trial court is corr ect in its conclusion that plaintiff is barr ed from rec overing compensatory damag es, althoug h section 1997e(e ), rathe r than “I llinois law,” is what bars him from doingso.

¶ 59 I I I . CONCLUSI ON ¶ 60 For

the foreg oing rea sons, we affirm the trial court’s judg ment in part and r ever se it in part, and we re mand this case for further proce eding s. We aff irm the summary judgme nt insomuch as it finds that plaintiff is barr ed from rec overing compensatory damag es, but we otherwise r ever se the summary judgme nt on count I V of the se cond ame nded complaint.

¶ 61 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

-12-