Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION AND MOTION FOR SUMMARY JUDGMENT BENNETT, District Judge. TABLE OF CONTENTS I.INTRODUCTION.1454 A. Procedural Background.1454 1. The original complaint, original parties, and original attempt at class certification .1454 2. Interim intervenors.1456 3. Renewed motion for class certification and motion for summary judgment .1456 4. Inadequacies and shortcuts.1458 5. Establishment of the proper procedural footing for disposition of the pending motions .1459 a. Intervention of new plaintiffs and requirements for assertion of their claims.1459 b. Identification of claims.1461 B. Factual Background.1462 1. Undisputed facts.1462 2. Disputed facts.1464 II. LEGAL ANALYSIS.1465 A. Renewed Motion For Class Certification.1465 B. Plaintiffs’ Motion For Summary Judgment.1468 1. Standards for summary judgment.1468 2. Standards for amendment.1470 3. Claims against defendants Thalacker and Salviati.1471 4. “Due process” claims.1472 5.Free speech claims. 1474 6. Right of petition” claims. 1479 a. “Retaliation” for exercise of the right of petition 1479 b. “Chilling” of the right of petition. i. A prisoner’s right of petition. 1480 1482 ii. Decisions addressing discipline for “false” statements in grievances . 1482 ni. Is there an unconstitutional chill” in this case? 1486 iv. Genuine issues of material fact. 1490 C. Qualified Immunity. 1493 D. Declaratory And Injunctive Relief. 1494 III. CONCLUSION. 1494 Does disciplining prisoners for “false statements” made in grievances to prison officials improperly impinge upon the prisoners’ due process rights, constitute unconstitutional retaliation for the exercise of rights of free speech or access to the courts, or chill the prisoners’ right to petition the government for redress of grievances? Although the plaintiff prisoners at the Iowa Men’s Reformatory have not made clear which of these rights they assert has been violated, they have nonetheless moved for summary judgment on the ground that punishment of prisoners for “false statements” in grievances is unconstitutional. The prisoners further contend that their constitutional right not to be punished for “false statements” made in grievances was clearly established by a decision of the Eighth Circuit Court of Appeals, removing any shield of qualified immunity defendants might raise to liability in this case. Defendant prison officials counter that they could properly punish statements viola-tive of prison rules, even if those statements were contained in grievances, because there is no constitutional protection for false statements. Otherwise, defendants contend, a prisoner could “camouflage” conduct in violation of prison rules simply by couching it in the context of a grievance. They further assert qualified immunity on the basis of decisions of the Eighth Circuit Court of Appeals apparently limiting the holding of the case upon which plaintiffs principally rely. As a separate matter, the plaintiffs make a renewed attempt to certify a class of all persons who have been, are now, or ever will be prisoners at the Iowa Men’s Reformatory. The court previously denied certification of such a class, primarily on the ground that plaintiffs produced no reliable standards or estimates for the numerosity of the purported class, but plaintiffs assert that additional submissions now demonstrate the existence of a viable class action. Defendants counter that the renewed class action still fails several requirements for class certification, most notably numerosity and common legal and factual issues. These pending motions call upon the court to determine what claims are, as well as what claims may, be asserted, by whom, on behalf of whom, against whom, and for what relief. The court must also determine whether final disposition of any claims is possible on the record presently before the court. I. INTRODUCTION A Procedural Background The procedural background of this litigation is unusually complex. Although a complex procedural posture for a ruling is not that unusual, the complexity here arises not just from what procedural steps have occurred, but from what procedural steps have not been taken, in attempting to certify a class of plaintiffs and to obtain favorable summary disposition on behalf of that class. 1. The original complaint, original parties, and original attempt at class cer-tiñcation The original plaintiff in this matter, Anthony Eugene Hancock, filed an application for leave to proceed in forma pauperis on June 16, 1995. Co-plaintiff Quentin McGowan filed no application for leave to proceed in forma pauperis, nor did he pay any filing fee. Consequently, Mr. McGowan was dismissed from the lawsuit on initial review on July 28, 1995. However, Mr. Hancock was granted leave to file his complaint, styled as a “Class Action Complaint,” on July 28, 1995. The defendants named in that complaint were John Thalaeker, the Warden of the Iowa Men’s Reformatory (IMR), Larry Brimeyer, the grievance officer and administrative law judge at the IMR, and Thomas Luensman, a corrections supervisor at the IMR. The original “Class Action Complaint,” filed by Mr. Hancock under 42 U.S.C. § 1988, asserts that Mr. Hancock' and other members of a purported class of inmates have been denied their First Amendment rights to petition the government for redress of grievances as the result of disciplinary actions against them by defendants for statements made in grievances, which, inter alia, complained about the conduct of certain IMR officials. The complaint seeks compensatory and punitive damages, as well as injunctive and declaratory relief. The defendants answered the original complaint on September 5,1995. On August 16, 1995, shortly after leave to file the complaint in this lawsuit was granted, Mr. Hancock moved for certification of a class identified as “all persons who have been, are now, or in the future will be confined in the Iowa Men’s Reformatory disciplinary lockup because of comments made in grievances.” Mr. Hancock further suggested that the members of the class are “all persons who have been, are now or will be prisoners at the Iowa Men’s Reformatory regardless of whether they [were] disciplined as Mr. Hancock was.” On September 13, 1995, however, this court denied the motion for class certification, finding that plaintiff Hancock had produced no reliable standards or estimates for the numerosity of his asserted class, and that he had failed to identify even the approximate size of the class or to demonstrate the impracticability of joinder. Instead, the court found Mr. Hancock had relied on conelusory statements that anyone who has ever been or ever will be an inmate at the IMR is a class member, which the court concluded will not do. Furthermore, the court found, Mr. Hancock had been able to identify only two other potential class members and only one further potential class member had volunteered his identity. The court concluded that all three of these potential class members could practicably intervene in the present litigation. Thus, the court concluded that it was likely that trying the individual suits would not be inconvenient, because the court could examine the factual basis of each asserted class member’s complaint. 2.Interim intervenors In the interim, on August 29, 1995, Benjamin J. Avila, another prisoner at the IMR, moved to intervene in this action as a plaintiff by filing an application to proceed in forma pauperis, as well as a “Statement of Facts” and “Supplement,” which the court construed together as Mr. Avila’s complaint. Mr. Avila’s motion to intervene was granted, and Mr. Avila’s complaint, as construed by the court, was ordered filed on October 10, 1995. Mr. Hancock’s counsel notified the court' on October 17, 1995, that he consented to representation of Mr. Avila as well as any other inmates who joined the action. Defendants answered Mr. Avila’s complaint in intervention on November 16,1995. On December 4, 1995, original co-plaintiff Quentin McGowan filed a motion to accept late filing of an informa pauperis statement, which Mr. McGowan asserted was attached to his motion. However, because no such in forma pauperis application was attached to the motion, the court denied the motion on January 29, 1996. Thus, prior to the renewed motion for class certification, the only plaintiffs in this action were Mr. Hancock and Mr. Avila. 3. Renewed motion for class certification and motion for summary judgment On March 11,1996, in a motion mailed just prior to a deadline for amendment of the complaint in this matter, plaintiff Hancock filed a renewed motion for class certification. The renewed motion for class certification was accompanied by a second “Class Action Complaint” (hereinafter, “Second Class Action Complaint”). No motion to amend the original complaint has ever been filed, however. The Second Class Action Complaint names as plaintiffs Mr. Hancock, Quentin McGowan, Toby Welsh, and Tim Luncsford. Thus, at this point plaintiff Benjamin Avila entirely disappeared from this litigation without explanation. Furthermore, one plaintiff twice denied leave to proceed in forma pau-peris, Mr. McGowan, has reappeared, and two entirely new plaintiffs, Mr. Welsh and Mr. Luncsford, have entered the picture. In addition, the Second Class Action Complaint also identifies a new defendant, Lt. Salviati, but does not drop any of the three defendants named in the original complaint. Unfortunately, the Second Class Action Complaint does not clarify the confusion as to the nature of the claims asserted by the class action plaintiffs identified supra in note 4. Compare Second Class Action Complaint, ¶¶ 1 (alleging violation of the plaintiffs’ “First Amendment right to free speech and to petition the government”), 2 (alleging violation of the plaintiffs’ “rights under the First and Fourteenth Amendments of the United States Constitution,” and requesting injune-tive relief “to prevent ongoing violation of the Plaintiffs due process and free speech rights”), 14 (alleging members of a class “have been, are and will be subjected to violations of the rights of petition and due process”), 50 (identifying the cause of action of the class as “violat[ions of] prisoners’ first amendment right to petition the government for redress of grievances”), and prayer subdivisions (b) (seeking declaratory relief for “violation of the First and Fourteenth Amendments”), and (c) (seeking injunctive relief prohibiting the disciplining of inmates “for statements made in grievances”). Nonetheless, the court understands the gravamen of the class action complaint is still alleged to be violation of the class members’ First Amendment right to petition the government for redress of grievances. Furthermore, the court notes a discrepancy between the class identified in the Second Class Action Complaint and the renewed motion for class certification. The Second Class Action Complaint identifies the class as “all persons who have been, are now, or in the future will be confined in the Iowa Men’s Reformatory.” Second Class Action Complaint, ¶ 14. However, the renewed motion for class certification states that certification is sought for a much narrower class, defined as “all persons who have been, are now, or in the future will be confined in the Iowa Men’s Reformatory disciplinary lockup because of comments made in grievances.” Renewal of Motion for Class Certification, ¶ 1 (emphasis added). There is also a discrepancy as to the identity of the intended class representatives. The prayer of the motion asks that the court “nam[e] Mr. Hancock, Mr. Welch [sic] and McGowan [sic] as a [sic] representative parties.” However, four plaintiffs, including Mr. Luncsford, are identified in the Second Class Action Complaint, and the “Parties” division of the Second Class Action Complaint identifies each of these plaintiffs as a “representative plaintiff.” Second Class Action Complaint, ¶¶ 5-8. At a minimum, whatever other disposition is made of the present motions, plaintiffs will be required to amend the complaint to state consistently the cause or causes of action they intend to pursue or that this court finds is or are viable, as well as to identify properly the class representatives and the defining characteristics of the class, if a class is indeed certified. The Second Class Action Complaint seeks declaratory and injunctive relief, as well as actual and exemplary damages for the alleged violation of the plaintiffs’ constitutional rights. Attached to the renewed motion for class certification, in addition to the Second Class Action Complaint, are the affidavits of Arthur Scott Fetters and Daveed Bachar Ha-Breet, a/k/a Arthur Tripplett. These affiants assert that they have in the past desired to file grievances regarding things done to them by members of the IMR staff, but have not done so because they feared harassment, retaliation, or repercussions, and further asserting, in the case of Mr. HaBreet, that he had seen other inmates so harassed for filing grievances. Also attached to the renewed motion for class certification is a declaration in forma pauperis by Mr. McGowan. A brief in support of the motion for class certification was also filed on March 11, 1996. Toby Welsh subsequently filed a declaration informa pauperis on March 29,1996. However, the court finds no application to proceed in forma pauperis from new class-action plaintiff Luncsford. Also subsequently filed in support of the renewed motion for class certification is an affidavit, filed March 26,1996, by Douglas Thompson, a legal assistant at the IMR, who affirms that he is personally aware of more than twenty-five inmates who “have either received or were threatened with disciplinary actions if they filed a grievance,” and that he has been told several times by inmates that they feared retaliation or harassment by correctional staff if they filed grievances. On April 12, 1996, defendants filed an answer to the Second Class Action Complaint, although leave to file such a complaint has never been granted, as well as a resistance to the renewed motion for class certification. The other motion pending before the court is the March 11, 1996, motion for summary judgment by all of the plaintiffs named in the Second Class Action Complaint. The motion requests that the court enter judgment, which, according to the complaint and supporting brief, should include compensatory and punitive damages, as well as declaratory and injunctive relief, for all plaintiffs in the action on the basis of the undisputed facts identified in a companion filing. More specifically, the supporting brief asserts- that plaintiffs are entitled to summary judgment on their “First Amendment retaliation claim” for retaliating against inmates for exercising their right to petition the government for redress of grievances through the prison grievance procedures. Plaintiffs also assert that defendants are not entitled to qualified immunity, because the decision in Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989), which is “nearly on all points with this ease,” demonstrates that the rights violated by dev fendants were clearly established. Defendants resisted the motion for summary judgment on April 12, 1996, principally on the ground that plaintiffs cannot state a retaliation claim when the discipline subsequent to the filing of their grievances was for a violation of prison rules, in this ease, the rules prohibiting “false statements” and “defamation,” even if such rules were violated by statements in the grievances filed by the defendants. They also contend that decisions subsequent to Sprouse limit the interpretation of that case asserted by plaintiffs, and therefore no clearly established rights have been violated. Hence, defendants assert their qualified immunity to liability for plaintiffs’ claimed violations of their rights. No reply briefs have been filed in support of either of plaintiffs’ motions, nor has any party sought a,hearing on either the motion for summary judgment or the motion for class certification. 4. Inadequacies and shortcuts The court is disturbed by a number of things noted in this recitation of the procedural posture of the case. First, although Mr. Hancock and the other purported plaintiffs are represented by counsel, there is no “short and plain statement” as required by Fed.R.Civ.P. 8(a), nor even a prolix and ornate one, of precisely what claims are at issue in this litigation. Instead, there is a rather sloppy “shotgun” assertion of First and Fourteenth Amendment violations, with various inconsistent articulations of the claim or claims asserted under these amendments. The court is left in the position of attempting to determine whether plaintiffs are entitled to class certification, summary judgment, or both on whatever claims the court can construe plaintiffs’ complaint to assert. However, at least as disturbing to the court is a problem antecedent to the question of what claims plaintiffs are attempting to assert. That problem is the apparent short-circuiting of necessary procedural steps to bring whatever claims are asserted before the court, let alone before the court for summary disposition. Only the informa pauper-is applications and the claims of two plaintiffs, Mr. Hancock and Mr. Avila, the latter of whom has apparently disappeared from this litigation without explanation, have been subjected to initial review by the court pursuant to 28 U.S.C. § 1915(d). Although two other applications to proceed in forma pau-peris are pending, those of Mr. McGowan and Mr. Welsh, there is as yet no such application from the fourth purported representative of the class, Mr. Luncsford, and no claims of any of these three inmates have been subjected to initial review. The court concludes that it is improper to certify these three inmates as class representatives, and to certify a class, when there has been no assessment of whether these purported representatives even have non-frivolous claims, let alone whether such claims are representative of the purported class. Furthermore, there has been no motion by these three “new” plaintiffs to intervene in the present litigation, pursuant to Fed.R.Civ.P. 24, and no motion to amend the original complaint in this matter, pursuant to Fed.R.Civ.P. 15, to incorporate all of the additions, including new plaintiffs and their claims and a new defendant, found in the Second Class Action Complaint, prior to the renewed motion for class certification. The motion for summary judgment therefore apparently assumes that the court will grant summary relief, sweeping past procedural failings as follows: granting all named plaintiffs leave to proceed in forma pauperis, whether they have filed applications or not, which includes finding the claims of all named plaintiffs, whatever those claims might be, non-frivolous pursuant to 28 U.S.C. § 1915(d); finding that the “new” plaintiffs should be granted leave to intervene in the present litigation pursuant to Fed.R.Civ.P. 24(b), although no leave to intervene has been sought; finding that the Second Class Action Complaint should be allowed as an amendment of the existing complaint, pursuant to Fed.R.Civ.P. 15, although no motion for leave to amend has been filed; approving the Second Class Action Complaint for certification as a class action pursuant to Fed. R.Civ.P. 23; overlooking the fact that a new defendant has never been served with or consented to service of the new complaint; construing the mishmash of claims into specific and coherent claims upon which relief can be granted; finding that there is no genuine issue of material fact on any of the claims, whatever the court construes them to be; finding that plaintiffs are entitled to judgment as a matter of law on some or all of the as yet ill-defined claims; and further finding that the rights poorly identified in the complaint were so clearly established- that defendants are stripped of qualified immunity. 5. Establishment of the proper procedural footing for disposition of the pending motions Were it not for the interests of judicial economy and economy of the parties, and the apparent acquiescence in plaintiffs’ procedural shorteutting by the defendants, who have pointed out none of these procedural failings and have instead resisted the motions for class certification and for summary judgment on their merits, the court simply would not find this matter ripe for consideration of either class certification or summary disposition. The court finds that the “new” plaintiffs, at least, have invited the court to bypass the relatively permissive review of their claims for non-ftivolousness pursuant to 28 U.S.C. § 1915(d), and instead have asked the court to measure their claims by the more rigorous standards of Fed.R.Civ.P. 56. Nonetheless, the court finds another course to be the proper one. a. Intervention of new plaintiffs and requirements for assertion of their claims First, the court will not simply bypass the steps necessary to make the “new” plaintiffs named in the Second Class Action Complaint or their claims part of this litigation. The court construes the proffer of the Second Class Action Complaint as an application to intervene pursuant to Fed.R.Civ.P. 24 by plaintiffs McGowan, Welsh, and Luncsford. Furthermore, it is apparent from the complaint that permissive intervention pursuant to Fed.R.Civ.P. 24(b)(2), rather than intervention as of right pursuant to Fed.R.Civ.P. 24(a), is what the “new” plaintiffs seek. The allegations of the complaint and the arguments based on those allegations are that the claims of the “new” plaintiffs and those of Mr. Hancock (and Mr. Avila) involve common questions of law or fact. See, e.g., Fed. R.Civ.P. 24(b)(2) (permissive intervention is allowed “when an applicant’s claim or defense and the main action have a question of law or fact in common”); Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471, 1478-79 (8th Cir.1995) (stating grounds for permissive intervention); United States v. Union Elec. Co., 64 F.3d 1152, 1170 & n. 9 (8th Cir.1995) (same). It is also apparent that the “new” plaintiffs have met all of the requirements for permissive intervention in this ease. First, the Second Class Action Complaint identifies the statutory basis for assertion of the claims as 42 U.S.C. § 1983. The plaintiffs have therefore shown an independent ground for jurisdiction, specifically, a federal question. Union Electric, 64 F.3d at 1170 n. 9 (intervenor must show independent ground for jurisdiction). As to timeliness and lack of delay or prejudice, Winbush, 66 F.3d at 1478 (timeliness requirement), the “new” plaintiffs’ motion to intervene, as the proffered Second Class Action Complaint is construed to be, was filed prior to the deadline for amendments to add new parties or' otherwise amend the complaint. Furthermore, the court finds that intervention by these plaintiffs will not delay the proceedings or prejudice any existing party. Id. (court must assess delay or prejudice caused by intervention). Trial in this matter is not set until the two-week trailing-ealendar period beginning November 4, 1996. Furthermore, with some thought to policy concerns, there may be significant gains in judicial economy and economies to the parties, not least the state, in litigating these matters together instead of piecemeal. Union Elec. Co., 64 F.3d at 1165 (policy considerations are relevant to permissive intervention, although they are irrelevant to intervention as of right). Finally, the allegations of the new plaintiffs, while alleging only similar facts involving incidents separate from that identified in Mr. Hancock’s complaint, give rise to an identical question of law, which is whether those facts constitute a violation of an inmate’s First Amendment right to petition the government for redress of grievances. Fed.R.Civ.P. 24(b)(2) (permissive intervention requires a common question of law or fact). Thus, the “new” plaintiffs will be allowed to. intervene in this action to the extent they otherwise present viable claims. Next, because plaintiffs McGowan and Welsh have filed applications to proceed in forma pauperis, the court will undertake an initial review of their claims pursuant to 28 U.S.C. § 1915. However, because Mr. Lunesford has filed neither an application to proceed in forma pauperis nor paid a filing fee, plaintiff Lunesford is dismissed as a plaintiff to this action without prejudice. 28 U.S.C. §§ 1914(a) and 1915(d). Thus, considering only the claims of Mr. McGowan and Mr. Welsh, although the court has already found Mr. Hancock’s similar allegations sufficient to survive initial review by the court, 28 U.S.C. § 1915(d), the court believes that this matter has progressed sufficiently' for the court to make a less generous consideration of whether the “new” plaintiffs’ claims are frivolous within the meaning of 28 U.S.C. § 1915(d). On initial review of Mr. Hancock’s claims, the court stated that it was not convinced that his claims were not frivolous within the meaning of the statute, but that the court believed the matter was better addressed after receipt of an answer and any dispositive motion deemed appropriate. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Money v. Moore, 877 F.2d 9 (8th Cir.1989). However, the “new” plaintiffs’ claims are presented with a summary judgment record and defendants’ answer to their claims, even though no answer was as yet required. Also, in order to allow amendment of the original complaint to assert the new allegations pursuant to Fed.R.Civ.P. 15, the court will be required to determine, inter alia, that the amendment is not “futile.” See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir.1987). Therefore, the court will assess, in the legal analysis section, whether any of the claims asserted by the “new” plaintiffs are so futile as to preclude their injection into this litigation, and consequently are “frivolous” within the meaning of 28 U.S.C. § 1915(d), such that they should be dismissed. b. Identification of claims This brings the court back to the question of what claims are asserted by Mr. Hancock and the “new” plaintiffs on behalf of themselves arid on behalf of the class they seek to represent. The court, viewing the Second Class Action Complaint more liberally than a document drafted by counsel probably deserves, construes the complaint as attempting to state four claims, or theories, of constitutional violations, on behalf of each of the named plaintiffs and on behalf of the asserted class: 1) “due process” claims, pursuant to the Fourteenth Amendment; 2) First Amendment “free speech” claims as the result of discipline for statements in grievances (one kind of retaliation claim); 3) First Amendment “right of petition” or “access to the courts” claims based on disciplinary actions for filing grievances (another kind of retaliation claim); and 4) First Amendment “right of petition” or “access to the courts” claims based on discipline for statements in grievances (chilling or burdening rights of access to the courts or to petition the government). The court will therefore consider whether these claims by the “new” plaintiffs are futile, and hence frivolous, and whether, if the claims can be asserted, the plaintiffs are entitled to summary judgment on them. The court finds that it is powerless to dismiss any of Mr. Hancock’s claims, even should the court find that they are “futile,” because of the difference in the procedural footing of Mr. Hancock’s claims. The court’s power to reject any claims of the “new” plaintiffs found to be futile arises from the court’s authority to undertake initial review and to grant or deny leave to amend the existing complaint to assert those new claims. However, Mr. Hancock’s claims survived initial review, whatever the court’s skepticism about their non-frivolousness at the time of initial review. Defendants have not filed pre-answer motions to dismiss Mr. Hancock’s claims pursuant to F.ed.R.Civ.P. 12(b)(6), nor cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56 on Mr. Hancock’s claims or those of any of the other plaintiffs. The court thinks it likely that, should the court determine that certain claims of the “new” plaintiffs are futile, the plaintiffs will either voluntarily withdraw the similar claims made by Mr. Hancock or the defendants will move for summary judgment on those claims. There remains as a procedural hurdle only the question of Mr. Avila’s continued participation in this lawsuit. Although Mr. Avila was granted leave to intervene in this lawsuit, he is not identified anywhere in the Second Class Action Complaint as a plaintiff. The record provides no information concerning any request for voluntary dismissal of his claims or concerning his interest in continuing to prosecute his claims. Therefore, the court will order Mr. Avila or his counsel to file a status report on Mr. Avila’s intention to continue prosecution of his claims. Failure to file the required status report, or failure to do so in a timely manner will be deemed failure to prosecute this action and may be deemed willful disobedience of a court order, resulting in dismissal of Mr. Avila’s claims for want of prosecution pursuant to Fed. R.Civ.P. 41(b). See Aziz v. Wright, 34 F.3d 587, 589 (8th Cir.1994) (finding dismissal proper under Rule 41(b) for willful disregard of court order and court’s warning of consequences for failure to comply), cert. denied, — U.S. -, 115 S.Ct. 752, 130 L.Ed.2d 652 (1995); Mullen v. Galati, 843 F.2d 293, 294 (8th Cir.1988) (also quoting Givens); Fletcher v. Southern Farm Bureau Life Ins. Co., 757 F.2d 953, 956 (8th Cir.1985) (dismissal under Rule 41(b) is warranted in cases of ‘“willful disobedience of a court order or continued or persistent failure to prosecute a complaint,’” quoting Givens v. A.H. Robins Co., Inc., 751 F.2d 261, 263 (8th Cir.1984)). With these preliminary procedural hurdles removed, by the court’s generous construction of various filings of the parties, the court may now turn to the factual background for this litigation and to disposition of the pending motions. B. Factual Background In light of the court’s cure of procedural defects, this litigation is before the court on plaintiffs’ motion for summary judgment. Therefore, the court will examine the factual background of this litigation in terms of what facts the record demonstrates are undisputed and what facts the parties assert are genuinely in dispute. However, because plaintiff Luncsford has been dismissed from this litigation, albeit without prejudice, for failure to file an application to proceed in forma pau-peris or pay a filing fee, the court will make no findings of fact concerning Mr. Luncsford and no legal analysis of his claims. 1. Undisputed facts Each of the three plaintiffs still before the court is an inmate at the IMR, and each encountered adverse consequences as the result of filing grievances or otherwise complaining to IMR officials about the conduct of IMR officials or corrections officers. Each of the plaintiffs claims to have suffered a violation of his constitutional rights when he ran afoul of prison rules against “false statements” and “defamation” on the basis of statements each made in a grievance or complaint to IMR officials. IMR rules define the offense of “False Statements” as follows: An inmate commits an offense under this subsection when the inmate knowingly makes a false statement whether or not under oath or affirmation, including but not limited to, dishonesty, deception, cheating, etc. Class I Offenses, Rule 35, Information Guide, Iowa State Men’s Reformatory (June 1, 1994, ed.), p. 16 (hereinafter, “IMR Rule 35”) (emphasis added). In addition to the prohibition on “false statements” found in IMR Rule 35, another IMR rule prohibits “defamation,” as follows: An inmate commits an offense under this subsection when the inmate knowingly portrays, depicts, or expresses oral or verbal defamatory statements or accusations towards any person. Class I Offenses, Rule 41, Information Guide, Iowa State Men’s Reformatory (June 1, 1994, ed.), p. 16 (hereinafter, “IMR Rule 41”) (emphasis added). The court will consider in turn the facts from which the claims of constitutional violations of each of these plaintiffs arise. First, original plaintiff Anthony Hancock filed a grievance on April 12, 1995, in which he asserted that Officer Fairbanks, a corrections officer who is not otherwise involved in these proceedings, was a “racist” and a member of the “K.K.K.” or some other white racist organization. As a result of the filing of that grievance, defendant Luensman told Mr. Hancock that if he filed a grievance with accusations against Officer Fairbanks or Officer Luensman, Luensman would put him “on report.” Mr. Hancock filed a grievance on April 13, 1995, complaining about Officer Luensman’s comments, and asking that Officer Luensman be ordered “to refrain from making such thre[a]ts so I could be p[ro]tect-ed when [I] desire to file such grievance.” Hancock’s Grievance No. 20-0356-95, Plaintiffs’ Exhibit 13. Officer Luensman filed a disciplinary report against Mr. Hancock charging him, inter alia, with making “false accusations” about Officer Fairbanks and himself and citing IMR Rules 35 and 41. The record does not reveal what, if any, consequences Mr. Hancock suffered as a result of the disciplinary report filed by Officer Luensman. However, defendant Larry Bri-meyer, acting as the IMR grievance officer, denied Mr. Hancock’s April 13, 1995, grievance. In his grievance response, dated April 26, 1995, Mr. Brimeyer reported that Officer Luensman denied telling Mr. Hancock that he could not file grievances, but admitted advising Mr. Hancock that “[he] would be held accountable for any accusations that [he] made against staff in these grievances and wanted [him] to be aware of that and to be aware of the possibility of disciplinary action if [he] did not follow those instructions.” Grievance/Warden Appeal Response, Plaintiffs’ Exhibit 15. The conclusion of Mr. Bri-meyer’s response was as follows: “Based on the above findings, as well as the information you have provided, I am recommending your grievance be denied. I see nothing unreasonable about the instructions you were given.” Id. “New” plaintiff Quentin McGowan also filed a grievance the response to which he alleges violated his constitutional rights. On April 16, 1994, Mr. McGowan filed a grievance in which he stated that an Officer McArtor “threat[ened] me right in front of my cell. He said that if I called him cookie again when I didn’t he was going to show me something and then he said he was going to whip my ass.” McGowan’s Grievance, No. 20-0450-94, Plaintiffs’ Exhibit 5. Mr. McGowan requested in that grievance that Officer McArtor “give me a writ[t]en apology.” Id. On April 22,1994, Officer McArtor filed a disciplinary report against Mr. McGowan, stating that he had learned of Mr. McGowan’s grievance from Lt. Salviati. In his disciplinary report, Officer McArtor charged Mr. McGowan with violation of IMR Rules 35 and 41 against false statements and defamation, stating that he had never threatened Mr. McGowan in any manner. On April 27,1994, Mr. Brimeyer, this time acting as a member of the IMR disciplinary committee along with two other members, found Mr. McGowan guilty of violations of both Rules 35 and 41 as charged by Officer MeArtor. The disciplinary committee ordered that Mr. McGowan serve five days of disciplinary detention, thirty days of disciplinary detention level one, and further ordered that he lose sixteen days of good time credit. At the same time, Mr. McGowan was found guilty of other charges not based on “false statements” or “defamation” as the result of which he was ordered to serve ten days disciplinary detention, ninety days of disciplinary detention level one, and to lose sixteen days of good time credit. Mr. McGowan’s appeal to the warden of the IMR was denied by the warden’s designee. However, Mr. McGowan’s discipline for false statements and defamation was subsequently expunged from his record and his good time credit was restored. Mr. Welsh asserts that his troubles began when he filed a “kite” with Warden Thalacker, that is, a direct communication with the warden rather than a formal grievance filed through the administrative grievance system. In the “kite,” properly identified as a “Request for Interview,” and dated March 21, 1994, Mr. Welsh stated that an “Officer Wilson” “threatened [him] + wrote a bogus report [and] he threaten[e]d me by raising his fist in a threatening manner.” Mr. Welsh’s Request For Interview, Plaintiffs’ Exhibit 1. On March 24, 1994, an Officer Weber, who had been improperly identified by Mr. Welsh as “Officer Wilson,” filed a disciplinary report against Mr. Welsh, stating that he learned of Mr. Welsh’s “kite” to the warden from Lt. Salviati, and asserting that he had never made any threatening gestures or done anything else that could be perceived as a threat. Officer Weber’s disciplinary report charged Mr. Welsh with violating IMR Rule 35 against making “false statements.” During his disciplinary hearing, Mr. Welsh asserted that federal law prohibited IMR officials from punishing him for statements made in a “kite” or grievance. On April 1, 1994, the disciplinary committee, which included Mr. Brimeyer, found Mr. Welsh guilty of a “false statement” in violation of IMR Rule 35. The committee’s report states that “we are unimpressed with his claim of a federal law that claims one cannot be punished for what is said in a kite or a grievance. This was not a grievance.” As the result of the guilty finding for making a “false statement,” Mr. Welsh was ordered to serve five days in disciplinary detention, thirty days in disciplinary detention level one, and to lose sixteen days of good time credit. Defendants admit that on two other occasions, Mr. Welsh was disciplined for statements made in grievances or in the course of “informal” efforts to resolve a grievance, despite Mr. Welsh’s assertion of the same defense of the protection of federal law. However, the record does not contain documentation of these disciplinary proceedings, so that the court is unable to determine precisely what statements were made, or whether the discipline imposed was for “false statements” or “defamation” in violation of either IMR Rule 35 or IMR Rule 41. However, in these latter two cases, it is undisputed that the discipline was expunged, in one ease, voluntarily by the IMR in August of 1994, and, in the other case, as the result of an order of the Iowa District Court. Finally, Mr. Brimeyer admits that he learned of the decision of the Eighth Circuit Court of Appeals in Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989), sometime after disciplinary action was taken against Toby Welsh. 2. Disputed facts Defendants raise various disputes of fact which they assert preclude summary judgment in favor of plaintiffs in this case. First, they assert that there is a dispute as to whether or not the plaintiffs could each have been disciplined for the statements contained in their grievances or kites if they had made those same statements orally directly to members of the IMR staff. They also assert that there is a genuine issue of material fact as to whether Mr. Welsh was on one occasion disciplined for statements in a “kite” rather than a “grievance.” This asserted dispute of fact appears to be whether a “kite” is factually similar to a “grievance” in the IMR system. The court, of course, will determine whether the two kinds of inmate communications or complaints are entitled to similar, if any, legal protection of the kind plaintiffs claim. Defendants also dispute the amount of time Mr. McGowan was ordered to serve for “false statements” and “defamation,” as opposed to the amount of time he served for a disciplinary report disposed of at the same time. However, the court identified above the discipline imposed on Mr. McGowan on the basis of the actual disposition of the disciplinary report, which matches plaintiffs’ recitation of the facts in their brief, although it does not match the recitation in the plaintiffs’ statement of undisputed facts. Hence, the court does not believe that there is any genuine issue of material fact as to the disciplinary detention Mr. McGowan served for “false statements” and “defamation.” Instead, there is a misstatement of the disciplinary sanctions in the plaintiffs’ statement of material fact that is corrected in their brief. Finally, defendants contend that there is a genuine issue of material fact as to whether Mr. Hancock’s right to petition was “chilled” as the result of any discipline or threat of discipline, because he continued to write copious grievances. Defendants assert that Mr. Hancock abused the grievance system and was restricted in the number of grievances he was allowed to write, but not in the content of those grievances. Defendants therefore concede that there is a policy of restricting the number of grievances an inmate may file, but assert that there is a genuine issue of material fact as to the existence of any policy or practice of disciplining prisoners for the contents of grievances. The court agrees. Although five inmates have, from time to time, been involved in this litigation asserting claims of similar treatment, plaintiffs have not presented any evidence of an official statement of the IMR or any other undisputed evidence of a policy to subject inmates to such treatment. Nor does the evidence of the treatment of these plaintiffs amount to an undisputed practice of disciplining inmates for the content of their grievances. A reasonable inference to be drawn from the record is that the incidents involving these five inmates were isolated events, if indeed, the circumstances of such incidents were otherwise wholly undisputed. The court finds that the record indicates another genuine issue of material fact that may be critical to the disposition of the plaintiffs’ motion for summary judgment. That issue is what standard of proof, some evidence, a preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt, was applied in determining that the plaintiffs had made “false” or “defamatory” statements of their grievances in violation of IMR rules. II. LEGAL ANALYSIS A. Renewed Motion For Class Certification The first of the pending motions the court will consider here is the plaintiffs’ renewed motion for class certification. Plaintiffs seek to certify a class defined quite broadly in their Second Class Action Complaint as “all persons who have been, are now, or in the future will be confined in the Iowa Men’s Reformatory,” and more narrowly in their renewed motion as “all persons who have been, are now, or in the future will be confined in the Iowa Men’s Reformatory disciplinary lockup because of comments made in grievances.” Plaintiffs suggest that the members of the class are “all persons who have been, are now or will be prisoners at the Iowa Men’s Reformatory regardless of whether they [are or were] disciplined as Mr. Welch [sic], Mr. Luncsford and McGowan [sic] were or were threatened as Mr. Hancock was.” Plaintiffs contend that certification of a class is necessary, because approximately one thousand five hundred inmates currently reside at the IMR, and an unknown number of inmates has passed through the institution in the past two years. Furthermore, they contend that the population of the IMR is constantly growing or changing. These uncertainties as to numbers of potential plaintiffs and the realities of incarceration, plaintiffs argue, mean it is impossible to determine who has been or will be intimidated by the IMR’s policy and practice of disciplining prisoners for statements made in grievances. These numbers also mean, plaintiffs argue, that individual adjudication of all possible claims would likely result in inconsistent and varying decisions creating conflicting or incompatible standards of conduct for the defendants. Furthermore, plaintiffs contend that all of the purported class members can assert common questions of law and fact, which plaintiffs here specify as “factual allegations of disciplinary actions taken in retaliation for the filing of grievances at the Iowa Men’s Reformatory,” and the legal issues raised in the representative plaintiffs’ complaint, as this court has observed, whatever those legal issues may be construed to be. Plaintiffs also assert that their own claims are representative of the members of the class, because “[t]he named plaintiffs have been disciplined for statements made in a grievance to Iowa Men’s Reformatory officials,” and “[o]ther inmates have been intimidated into not filing grievances because of the policy [of so disciplining inmates].” The defendants object to certification of this class on a number of grounds. First, defendants contend that there is no policy of disciplining inmates for statements made in grievances as alleged by plaintiffs, although there is a policy restricting the number of grievances inmates may file. Consequently, they contend that there is no common question of law or fact among members of the putative class nor any numerous class of persons subjected to such a policy. Furthermore, they contend that the numerosity requirement for class certification cannot be met, because assertion that the plaintiffs and two non-parties claim to have been intimidated or threatened with discipline or in fact were disciplined for the content of their grievances is insufficient. Next, they argue that Mr. Hancock’s claims are atypical, or individual, rather than typical of any class, because efforts to curb the number of complaints he was filing did not affect any other members of a putative class, and he was not actually disciplined, as the other representatives were, for statements made in a grievance. Defendants also contend that, because of the lack of any “policy” as asserted by plaintiffs, the individual claims of the plaintiffs should be adjudged individually, because they in no way represent claims of a class of persons. The court has already rejected arguments similar to plaintiffs’ proffered in Mr. Hancock’s first motion for class certification. There are only limited changes in circumstances or supporting documentation proffered in support of the renewed motion for class certification. Instead of only two plaintiffs to support the original class action, one of whom has disappeared, there are now four purported class representatives, although one of those putative representative plaintiffs has been dismissed from this action for failure to file an in forma pauperis application or pay the required filing fee. Thus, there has been a net gain of one identified plaintiff actually asserting claims similar to those apparently asserted in the class action. In addition to the net gain of one person actually attempting to join the litigation, plaintiffs have also submitted the affidavits of Arthur Scott Fetters and Daveed Bachar HaBreet, a/k/a Arthur Tripplett. These affiants assert that they have in the past desired to file grievances regarding things done to them by members of the IMR staff, but have not done so because they feared harassment, retaliation, or repercussions, and further asserting, in the case of Mr. HaBreet, that he had seen other inmates so harassed for filing grievances. However, these assertions parallel only one of the four claims the court has construed the Second Class Action Complaint as advancing, the First Amendment “right of petition” retaliation claim, but do not indicate the retaliation these affiants feared was the same as that feared or suffered by the putative representatives, ie., disciplinary reports for false or defamatory statements, or even what the retaliation these affiants feared was. The affidavit of Mr. Thompson, that he is personally aware of more than twenty-five inmates who “have either received or were threatened with disciplinary actions if they filed a grievance,” and that he has been told several times by inmates that they feared retaliation or harassment by correctional staff if they filed grievances, is similarly flawed, because it fails to indicate comparable kinds of retaliation. Once again, the court concludes that plaintiffs have failed to meet the numerosity requirement for class certification pursuant to FecLR.Civ.P. 23 as well as other requirements of the rule. In order to obtain class certification, the putative representatives bear the burden of showing that the class should be certified and that the requirements of Fed.R.Civ.P. 23 are met. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir.1994) (citing Smith v. Merchants & Farmers Bank of West Helena, 574 F.2d 982, 983 (8th Cir.1978)); Howe v. Varity Corp., 896 F.2d 1107, 1111 (8th Cir.1990). The district court’s determination of whether or not to certify a class will be set aside only if there was an abuse of discretion. Coleman, 40 F.3d at 259; Arthur Young & Co. v. Reves, 937 F.2d 1310, 1323 (8th Cir.1991) (“ ‘A district court has broad discretion in determining whether to certify a class, and its determination will not be overturned absent a showing that it abused its discretion,’” quoting Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984)), rev’d on other grounds, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993); Belles v. Schweiker, 720 F.2d 509, 515 (8th Cir.1983). Rule 23(a) of the Federal Rules of Civil Procedure identifies the prerequisites for a class action as follows: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). The Eighth Circuit Court of Appeals has required some specificity in the allegations on the part of plaintiff upon which to base class certification. See, e.g., Coleman, 40 F.3d at 258-59. The “numerosity” requirement has produced no rule of thumb in this circuit as to how many potential class members is enough. Belles, 720 F.2d at 515 (“no arbitrary rules regarding the necessary size of classes have been established.”); but see Richter v. Bowen, 669 F.Supp. 275, 281 n. 4 (N.D.Iowa 1987) (recognizing that some courts apply a rule of thumb that a class of over 40 persons is sufficiently numerous, citing 3B J. Moore, Moore’s Fed. Procedure 23.05[1]). Instead, the Eighth Circuit Court of Appeals often refers to the language of the rule itself that the class must be “so numerous that joinder of all members is impracticable.” Fed. R.Civ.P. 23(a); Coleman, 40 F.3d at 258; Arthur Young & Co., 937 F.2d at 1323; Tate v. Weyerhaeuser Co., 723 F.2d 598, 609 (8th Cir.1983), cert. denied, 469 U.S. 847, 105 S.Ct. 160, 83 L.Ed.2d 97 (1984); Belles, 720 F.2d at 515; Paxton v. Union Nat’l Bank, 688 F.2d 552, 559 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983). Some time ago, the Eighth Circuit Court of Appeals identified a number of factors relevant to this requirement of Rule 23(a), “the most obvious of which is, of course, the number of persons in the proposed class.” Paxton, 688 F.2d at 559. Thus, the Eighth Circuit Court of Appeals has held that “seven former employees” is not enough, Tate, 723 F.2d at 609, while 1,685 potential plaintiffs was a sufficiently large number. Arthur Young & Co., 937 F.2d at 1323. However, [i]n addition to the size of the class, the court may also consider the nature of the action, the size of the individual claims, the inconvenience of trying individual suits, and any other factor relevant to the practicability of joining all the putative class members. Paxton, 688 F.2d at 559-60; see also Tate, 723 F.2d at 609 (it is appropriate for the district court to consider “that trying the individual suits would not be inconvenient because it could examine the factual basis of’ each class member’s complaint). The putative representative may fail its burden to show numerosity where he or she does not actually identify even the approximate size of the class or demonstrate the impracticability of joinder. Belles, 720 F.2d at 515. In Coleman, the named representative had failed to justify his claim of numerosity “with any reliable standards or estimates,” and thus the district court did not err in concluding that the named representative had failed to establish the existence of a group of identifiable plaintiffs appropriate for class certification. Coleman, 40 F.3d at 258; and compare Arthur Young & Co., 937 F.2d at 1323. In the present case, the court finds that the plaintiffs have again produced no reliable standards or estimates for the numerosity of the asserted class. Coleman, 40 F.3d at 258. Although plaintiffs have provided an estimate of the current population of the IMR, and assert that determining how many inmates passed through the IMR in the last two years or will do so in the near future is impossible, plaintiffs fail to identify even the approximate size of the class of persons actually subjected to the assertedly unconstitutional conduct in question, discipline or intimidation for statements made in grievances, or to demonstrate the impracticability of joinder when so few people have actually been identified as having comparable claims. Belles, 720 F.2d at 515. Instead, plaintiffs rely on conclusory statements that anyone who has ever been or ever will be an inmate at the IMR is a class member. The court reiterates that such conclusory statements will not do. At a minimum, the court concludes that plaintiffs should have produced some reliable estimate of the number of inmates who have been disciplined for statements made in grievances or kites to IMR officials. Coleman, 40 F.3d at 258. They have not even attempted such an estimate, as the affidavits of Fetters, HaBreet, and Thompson do not provide such information. Furthermore, plaintiffs have been able to identify no other potential class members by name. Again, Fetters and HaBreet do not fall into this category, because their affidavits do not indicate that statements in grievances had anything to do with their concerns about retaliation. All of the potential class members identified could practicably intervene in the present litigation. Fed. R.Civ.P. 23(a); Coleman, 40 F.3d at 258; Arthur Young & Co., 937 F.2d at 1323; Tate, 723 F.2d at 609; Belles, 720 F.2d at 515; Paxton, 688 F.2d at 559. The court also finds that plaintiffs cannot meet the commonality and typicality requirements of Rule 23(a). See, e.g., DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1174-75 (8th Cir.1995) (finding that “commonality and typicality” are separate but related requirements of class certification under Rule 23(a)), cert. denied sub nom. Crehan v. DeBoer, — U.S. -, 116 S.Ct. 1544, 134 L.Ed.2d 648 (1996). In DeBoer, the Eighth Circuit Court of Appeals explained that [c]ommonality is not required on every question raised in a class action. Rather, Rule 23 is satisfied when the legal question “ ‘linking the class members is substantially related to the resolution of the litigation.’ ” Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir.1982) (quoting American Fin. Sys., Inc. v. Harlow, 65 F.R.D. 94, 107 (D.Md.1974)), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983). DeBoer, 64 F.3d at 1174. The court therefore upheld class certification when the “main point of contention” for all class members was the same. Id. However, beyond the few plaintiffs who have presented themselves by name, the plaintiffs have presented no indication that there is a class of persons linked by substantially related legal questions or a “main point of contention.” Id. Whether all of the persons identified in the supporting affidavits were intimidated by a fear of retaliation for filing grievances is simply too broad; the main point of contention of the class action complaint is whether the discipline, retaliation, or intimidation would be based on the content of the grievances. Neither the supporting affidavits nor anything else offered by plaintiffs demonstrates that there is such a class with this point of commonality. As to “typicality,” the Eighth Circuit Court of Appeals observed that “[t]he burden of demonstrating typicality is fairly easily met so long as other class members have claims similar to the named plaintiff.” Id. (again citing Paxton, 688 F.2d at 562). However, plaintiffs have failed to demonstrate that there is anyone, let alone a class of individuals, besides the named plaintiffs, whose constitutional rights have been violated in any of the four ways the court has construed the named plaintiffs to contend their rights were violated. Finally, it is likely “that trying the individual suits would not be inconvenient because [the court] could examine the factual basis of’ the complaints of each of the three asserted class members, or the five asserted class members, if Avila, who has disappeared, and Lunesford, who has been dismissed, are counted. Tate, 723 F.2d at 609. The court once again denies plaintiffs’ motion for class certification. The court therefore turns to the question of whether the named plaintiffs who remain in this litigation, Mr. Hancock, Mr. Welsh, and Mr. McGowan, are entitled to summary judgment on any of their individual claims. B. Plaintiffs’ Motion For Summary Judgment 1. Standards for summary judgment The Eighth Circuit Court of Appeals recognizes “that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.” Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly sixty years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Wabun-Inini, 900 F.2d at 1238 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986)); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. * * * * * * (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and th