DAHER v. PAYNE (2026)

MEMORANDUM DECISION

Case Summary

[1] In July of 2021, James Daher, Jr., was imprisoned in the Miami Correctional Facility (“MCF”) in Bunker Hill when he was reassigned from his position working in the law library and the process was begun to take away 480 days of credit to which he had not been legally entitled. In February of 2022, Daher sued George Payne, Jr.; Tiffany Carter; Timothy Dice; Neil Johnson; Kimberly Layman; Charles Miller; and Tiffany Gaidoo (collectively, “Defendants”)¹ , alleging that his removal from the law-library position and deprivation of credit time had been in retaliation for his prior exercise of his First Amendment right to free speech. In May of 2025, the trial court granted Defendants’ motion for summary judgment. Daher contends that the trial court erred in concluding that there was no genuine issue of material fact regarding Defendants’ retaliatory motivation. Because we disagree, we affirm.

Facts and Procedural History

I. The Law-Library Incident

[2] Daher, Michael Troutman, and Charles Justise were prisoners working as law-library clerks at MCF in July of 2021. On July 27, 2021, Daher, Troutman, and Justise were collecting law-library mail to be delivered, including a letter that contained highly sensitive and confidential information pertaining to prisoners involved in an investigation into the trafficking of contraband into MCF. Daher, Troutman, and Justise made several copies of the letter and passed the copies around to each other.

[3] Correctional Officer Brittany Drudge worked as an officer assigned to the law library and reported to Sergeant Carter that individuals working in the law library had been making copies of another incarcerated individual's confidential mail. Sergeant Carter reported the incident to her supervisor, Deputy Warden Payne. During an investigation, Officer Dice of the Division of Investigations and Intelligence viewed video surveillance from security cameras, which showed Daher and the other individuals reading the letter. Daher and the other law-library clerks involved in reading and copying the letter were removed from their positions in the law library.

[4] On September 29, 2021, Daher filed a classification appeal asking that he be placed back into his former law-library position. Deputy Warden Jacqueline Scaife granted Daher's classification appeal on October 14, 2021. Daher, however, intentionally delayed his placement back into the-library position for a few weeks so that he could complete a logistics class and earn the certificates associated with it. As it happens, on or around July 22 or 23, 2021, Daher had sent correspondence to Ken Falk at the Indiana American Civil Liberties Union (“ACLU”) on an unrelated matter.

II. Credit Time

[5] Meanwhile, on July 20, 2021, Amanda Tobin at MCF identified several individuals at the facility who had improperly received jail time credit while being incarcerated for a parole violation, including Daher, who had received 480 days of jail time credit on his new commitment while incarcerated for a parole violation. Pursuant to Indiana Code section 35-50-1-2, these sentences are to be served consecutively, and a parolee is not permitted to receive credit in both a new criminal charge and parole time at the same time.

[6] Indiana Department of Correction release specialist Layman reviewed the credit time for the individuals identified by Tobin and began recommending T-actions, or the stopping of the running of a sentence, where appropriate. On November 3, 2021, Layman emailed Indiana Parole Board member Gaidoo, requesting that a T-action be completed for Daher. After reviewing Daher's credit time and confirming the error, Gaidoo recommended that the T-action be completed. Parole Board Vice President Charles Miller approved the T-action adjusting the credit time Daher received downward by 480 days.

III. The Litigation

[7] On February 17, 2022, Daher filed his complaint pursuant to 42 U.S. § 1983, alleging various constitutional violations against Defendants and the Parole Board. On May 1, 2022, the trial court issued an order dismissing Daher's claims against the Parole Board and providing that the only constitutional claim that remained was that Defendants, in reassigning him from his position in the law library and adjusting his credit time, had impermissibly retaliated against him for communicating with the ACLU. On November 8, 2024, Defendants moved for summary judgment on the basis that the designated evidence established that they had not engaged in any retaliatory conduct as a matter of law. Defendants attached sworn declarations that none of them had been aware that Daher had sent any correspondence to the ACLU prior to the library incident and Daher's reassignment or the adjustment of his credit time. On December 9, 2024, Daher filed an answer to Defendants’ summary-judgment motion and cross-moved for summary judgment. On May 21, 2025, the trial court conducted a hearing on the parties’ summary-judgment motions and, four days later, entered summary judgment in favor of Defendants.

Discussion and Decision

I. The Trial Court Properly Entered Summary Judgment in Favor of Defendants

[8] As an initial matter, we note that, although Daher is proceeding pro se, he is held to the same standards as trained attorneys and is afforded no inherent leniency simply by virtue of being self-represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). “[P]ro se litigants are [․] required to follow procedural rules.” Martin v. Brown, 129 N.E.3d 283, 284 (Ind. Ct. App. 2019). Pro se litigants who do not follow established rules of procedure “must be prepared to accept the consequences of their failure to do so.” Basic v. Amouri, 58 N.E.3d 980, 983–84 (Ind. Ct. App. 2016) (internal citations omitted).

[9] That said, in deciding whether to affirm or reverse the entry of summary judgment, we apply the same standards as the trial court. First Farmers Bank & Tr. Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Kluger v. J.J.P. Enters., Inc., 159 N.E.3d 82, 86 (Ind. Ct. App. 2020), trans. denied. Once these two requirements are met by the moving party, the burden shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Id. at 87. We consider all of the designated evidence in the light most favorable to the non-moving party. First Farmers, 891 N.E.2d at 607–08.

[10] A fact is “material” if it helps to prove or disprove an essential element of the plaintiff's cause of action, and a factual issue is “genuine” if the trier of fact is required to resolve the opposing party's different version of the facts. Ind. Farmers Mut. Ins. Grp. v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant of summary judgment has the burden of demonstrating that the trial court's ruling was improper. Trueblood v. State, 715 N.E.2d 1242, 1260 (Ind. 1999). We will affirm the entry of summary judgment on any theory supported by the record. Markey v. Est. of Markey, 38 N.E.3d 1003, 1006–07 (Ind. 2015).

[11] Cases “hinging on disputed material facts” are “ ‘a matter for trial, not summary judgment.’ ” Siner v. Kindred Hosp. Ltd. P'ship, 51 N.E.3d 1184, 1188 (Ind. 2016) (quoting Hughley v. State, 15 N.E.3d 1000, 1005–06 (Ind. 2014)). Indeed, it is well-settled that “Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004.

[12] Daher contends that Defendants deprived him of his position in the law library and 480 days of credit time in retaliation for the exercise of his constitutional right to free speech. To prevail on a claim that one has been retaliated against for exercising First Amendment rights, a plaintiff must establish 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 Defendants’ decision to take the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (citations and quotation marks omitted). In order to prove a deprivation and establish a retaliation claim, a plaintiff must show that he suffered a deprivation likely to deter a person of ordinary firmness from continuing to engage in protected activity. Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011). In the prison context in particular, the United States Court of Appeals for the Seventh Circuit has held that “the harsh realities of a prison environment affect our consideration of what actions are sufficiently adverse.” Holleman v. Zatecky, 951 F.3d 873, 880 (7th Cir. 2020).

[13] As mentioned, Daher's contention is that he was removed from his position as a clerk in the MCF law library and had his credit time adjusted down in retaliation for his having sent a letter to the ACLU approximately four or five days prior to the law-library incident. As Daher put it in deposition testimony, “[t]he timing stinks.” Appellant's App. Vol. II p. 200. That said, “[s]uspicious timing alone will rarely be sufficient to create a triable issue because ‘[s]uspicious timing may be just that—suspicious—and a suspicion is not enough to get past a motion for summary judgment.’ ” Manuel v. Nalley, 966 F.3d 678, 681 (7th Cir. 2020) (quoting Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011)). We conclude that Daher has failed to designate evidence that would allow a reasonable jury to find anything more than suspicious timing.

[14] Daher designates absolutely no evidence that any of the Defendants became aware of his ACLU correspondence until after they had already removed him from his position in the law library and commenced the T-action. The letter to the ACLU was sent four to five days before Daher was removed from his position, and there is no evidence that anyone involved in that decision was aware of the letter at the time. As for the credit-time claim, the undisputed designated evidence indicates Tobin identified Daher (along with several other MCF inmates) as having improperly received too much credit time on July 20, 2021, or before he even sent the letter to the ACLU. Daher's claim in this regard is, essentially, that Defendants were retaliating against him for something that he had not even done yet.

[15] Daher has also failed to designate any evidence that a motive to retaliate developed later, and review of the record indicates that each of the courses of action taken by the various Defendants was objectively reasonable, further undercutting the suggestion that their actions were ever motivated by retaliation. Even if we assume that Daher was actually fired from his law-library position (and not just reassigned to a new position), the designated evidence is sufficient to establish that he and two other inmates opened, read, and copied a confidential letter that had been given to them by another inmate for mailing, actions that would fully justify his removal.

[16] It also seems clear that Daher had indeed been given credit time to which he was not entitled, fully justifying the T-action. A parolee in Indiana is not permitted to receive credit on both a new criminal charge for a crime committed while on parole and parole time for the same days spent incarcerated. Ind. Code § 35-50-1-2(e).² As the Indiana Supreme Court has held numerous times, jail-time credit is applied against the aggregate of the sentences. See, e.g., State v. Lotaki, 4 N.E.3d 656, 657 (Ind. 2014) (“[W]hen consecutive sentences are involved, credit time is deducted from the aggregate total of the consecutive sentences, not from an individual sentence.”). This is accomplished by giving credit against only one sentence. See id. In the end, it seems that Defendants had no choice but to recompute Daher's sentences once the error was found. We conclude that Daher has designated no evidence that would allow a reasonable jury to conclude that either his removal from his position in the law library or the recalculation of his credit time was done in retaliation for his correspondence with the ACLU.

[17] Daher argues that the designated evidence generates a genuine issue of material fact regarding retaliatory motive, claiming that it “shows a custom, pattern or common practice of evidence tampering, evidence destruction even after document retention notices were issued” and that “the Miami facility and [Defendants] consistently file false claims with the federal (and state) courts.” Appellant's Br. p. 13. The evidence cited does not, in fact, show those things, as it is simply a letter to Daher from Falk informing him that claims by inmates in several unrelated cases had been able to survive summary-judgment motions. Daher also suggests that “documents, emails, text messages, and video evidence” in Defendants’ possession would demonstrate that their affidavits and sworn statements are false. Appellant's Br. p. 14. Daher points to no actual designated evidence to support this allegation.

[18] Daher also argues that an affidavit filed in the trial court (presumably the affidavit designated “Exhibit G”) is sufficient to defeat Defendants’ summary-judgment motion. We cannot agree, as the affidavit in question consists almost entirely of Daher's unsupported factual allegations, facts that are irrelevant to the question of retaliation, unreasonable characterizations of events, and legal conclusions, much like Daher's Brief of Appellant.³ Daher has failed to establish a genuine issue of material fact regarding whether the Defendants retaliated against him for exercising his right to free speech.

[19] We affirm the judgment of the trial court.

FOOTNOTES

1.   Payne, Carter, Dice, Johnson, and Layman are MCF employees, and Miller and Gaidoo are members of the Indiana Parole Board.

2.   Other than being redesignated as subsection 35-50-1-2(e) (from 35-50-1-2(d)) effective July 1, 2015, the relevant language has not changed since the provision was first enacted in 2008:(e) If, after being arrested for one (1) crime, a person commits another crime:(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or(2) while the person is released:(A) upon the person's own recognizance; or(B) on bond;the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.Ind. Code § 35-50-1-2(e).

3.   For example, Daher spends a great deal of time arguing in his Brief that he was, in fact, fired from his position in the law library (as opposed to being reclassified) and that he was actually entitled to the credit time that was taken from him. The only question actually before us, however, is whether the Defendants’ actions were motivated by retaliation, not whether they actually constituted a termination or were correct on the merits.

Bradford, Judge.

Tavitas, C.J., and Felix, J., concur.