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BUTLER v. BENSINGER

June 14, 1974

ROBERT BUTLER, PLAINTIFF,
v.
PETER B. BENSINGER, INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF THE STATE OF ILLINOIS DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marovitz, District Judge.

    MEMORANDUM OPINION

Motion to Dismiss or for Summary Judgment

Plaintiff Robert Butler brings this civil rights action to seek relief — injunctive, compensatory, and declaratory — arising from conditions and incidents at the Stateville Branch of the Illinois State Penitentiary. Butler was an inmate at Stateville during all times relevant to this complaint, though he is now presently incarcerated at the Pontiac Branch of the Illinois State Penitentiary. Defendants are divers officials of the Illinois Department of Corrections and of Stateville, correctional officers and guards at Stateville, inmate nurses in the Detention Hospital at Stateville, the Stateville prison physician, and John Does 1-12 representing an unknown physician, unknown guards, and unknown inmate nurses at Stateville. For purposes of briefing and discussion, the parties have categorized plaintiff's numerous grievances into seven areas of allegation, and we shall basically adhere to those seven groupings for purposes of resolving the motion before us. Plaintiff alleges that defendants: a) confiscated personal property of plaintiff, b) subjected plaintiff to a pattern of punishment and harassment for stating his views on conditions and treatment at Stateville, c) destroyed legal documents belonging to plaintiff, d) denied plaintiff proper medical care, e) subjected plaintiff to beatings and to cruel and unusual punishment, f) subjected plaintiff to disciplinary action without due process, which action resulted in, inter alia, over 21 months spent in the disciplinary segregation unit, and over 200 days spent in the disciplinary isolation unit, g) revoked 23 months of statutory good time without due process. Jurisdiction is based on 28 U.S.C. § 1343, 42 U.S.C. § 1983, 28 U.S.C. § 2254, and the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution, and declaratory relief is sought pursuant to 28 U.S.C. § 2201 and 2202.

Defendants now move to dismiss the complaint for failure to state a claim upon which relief can be granted, or alternatively for summary judgment. Each side has filed affidavits and exhibits, and in addition plaintiff has filed five depositions with the court. It is worthwhile to briefly summarize the court's handling of summary judgment affidavits before discussing the specific allegations before us. For purposes of showing whether or not there is a triable issue, Rule 56(e) of the F.R.Civ.P. requires that both supporting and opposing affidavits be made on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Assuming affidavits do so comply, one of the primary purposes of summary judgment procedure is to pierce the pleadings, and so summary judgment should be rendered where the supporting affidavits and opposing affidavits (together with other extraneous materials, if any) show that there is no genuine issue of material fact.

In determining whether there is any triable issue the court should not pass upon the credibility of opposing affidavits, unless the evidence tendered by them is too incredible to be accepted by reasonable minds. The burden is upon the moving party to establish the lack of a triable issue of fact, and all doubts are resolved against him. Finally, supporting affidavits may be insufficent to satisfy the burden imposed on the moving party even though the opposing party fails to present any competent counter-affidavits or other materials; the opposing party need not show that the issue would be decided in his favor, but need only show that there is a triable issue. See generally, 6 J. Moore, Federal Practice ¶ 56.11 [3].

Also, before delving into the specifics of the complaint, the court grants the motion to dismiss in its entirety as to: a) Peter Bensinger, at all relevant times Director of the Department of Corrections of the State of Illinois, b) A.M. Monahan, at all relevant times Assistant Director of the Illinois Department of Corrections, c) Frank J. Pate, at all relevant times Warden of the Illinois State Penitentiary in Joliet, d) George Stampar, at all relevant times Superintendent of the Stateville prison in Joliet, and e) E.E. Morris, at all relevant times Assistant Superintendent of Stateville Penitentiary. The only allegations made as to Bensinger, Monahan, Pate, Stampar, and Morris are that they "have the duty to regulate and control the correctional officers and guards in the Illinois State Penitentiary system, and to administer the Illinois State Penitentiary system, in such a manner as to prevent inmates from being deprived of their rights, privileges, and immunities under the Constitution and Laws of the United States." (Amended Complaint, paragraph 4(q)). It is the law of this circuit that such an allegation is insufficient to state a claim against the above-named defendants. The complaint fails to allege any overt acts as to these defendants, or that any illegal acts were administered at the direction of these defendants, or with their knowledge and consent. Adams v. Pate, 445 F.2d 105 (7th Cir. 1971); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969). The plaintiff must prove actual conduct depriving him of his rights on the part of each defendant whom he seeks to hold liable; an official is not liable for the acts of his subordinates in the absence of some personal involvement in those acts on the part of the party sought to be charged. Landman v. Royster, 354 F. Supp. 1302, 1316 (E.D.Va. 1973). As stated, plaintiff alleges neither that defendants personally directed certain acts, nor that there was actual knowledge and acquiescence in them, Landman v. Royster, supra at 1316, and so a cause of action is not stated as to these defendants. Furthermore, looking beyond the mere language of the complaint, nothing in the record to date indicates any evidence that would substantiate such charges, which fact merely acts as an independent buttress to our decision to dismiss as to these defendants.

Allegation A

Plaintiff complains that on September 12, 1968, and again on or about December 24, 1968, he was deprived of items of personal property, including art equipment, art effects, and commissary goods, by defendant Larry Yates in violation of his Fourth and Fourteenth Amendment rights. Defendants claim that this deprivation does not state a claim under 42 U.S.C. § 1983. We agree.

Without attempting to define the precise scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962). In prison, official surveillance has traditionally been the order of the day. Id.

Furthermore, while the federal courts certainly do not condone conversion of an inmate's property, they necessarily insist that such allegations and charges be heard in the state courts. Alleged improper confiscation of a prisoner's property is a matter which falls within the rubric that "only in exceptional circumstances will a federal court interfere with matters that involve the internal management of a state prison." United States ex rel. Knight v. Ragen, 337 F.2d 425 (7th Cir. 1964); Taylor v. Burke, 278 F. Supp. 868 (E.D.Wis. 1968) (alleged seizure of a family photograph album); United States ex rel. Wagner v. Ragen, 213 F.2d 294 (7th Cir. 1954) (alleged seizure of prisoner's oil paintings). See also United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105, 107 (7th Cir. 1953); Siegel v. Ragen, 180 F.2d 785, 788 (7th Cir. 1950); Kelly v. Dowd, 140 F.2d 81, 82 (7th Cir. 1944). We appropriately decline to hear this allegation.

Allegation B

Plaintiff complains that as an outspoken critic of prison abuse, he has been subjected to a pattern of discrimination on the part of certain officials which has resulted in his being punished in an arbitrary and vindictive manner. As evidence of this charge, plaintiff lists numerous instances of what he terms "severe and disproportionate punishments" for minor offenses, such as "10 days in isolation for being in bed", and "5 days in isolation for wearing an undershirt without sleeves" (Plaintiff's brief, p. 6; defendants' exhibit B), and argues that such punishment is clearly a thinly-veiled excuse to harass and punish him for his views. Defendants move to dismiss this complaint for being vague and conclusionary, and for failure to allege specific instances where plaintiff was punished for exercising his First Amendment rights.

Ideally, no punishment resulting in a "grievous loss" can be imposed on any prisoner without a due process hearing as required by United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973). Plaintiff's grievance is that he is regularly subjected to unduly harsh punishment without a true and proper hearing, and so he requests the court to "pierce the veil of his disciplinary record" to discovery the "abuses he has suffered." (Plaintiff's brief, p. 7). Insofar as the charges made herein, and the relief requested, is merely a broader statement of the grievances and relief discussed in Allegations E and F, infra, we decline to consider and rule upon Allegation B as an independent complaint.

Allegation C

Plaintiff complains that in July, 1969, certain unknown defendants destroyed his trial transcript and certain other legal documents, in violation of his Sixth and Fourteenth Amendment rights. It is settled that a complaint alleging the destruction by prison guards of an inmate's legal papers essential to his ongoing appeal states a good cause of action for damages under the Civil Rights Act, Sigafus v. Brown, 416 F.2d 105 (7th Cir. 1969), and that the deprivation of materials necessary to afford reasonable access to the courts is a violation of due process. Sigafus v. Brown, supra at 107; Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973). Defendants move to dismiss on the basis that regardless of any actual removal or destruction of legal papers, plaintiff was not actually denied access to the court, as evidenced by his 1971 lawsuit involving the incidents herein, and the present lawsuit.

However, as plaintiff argues, an inmate who claims obstruction in his access to the court but who eventually succeeds in lodging his complaint must not have his claim dismissed merely due to the resultant success of his perseverance; such a policy would effectively foreclose all lawsuits claiming obstruction of access to the courts by virtue of the fact that the plaintiff ultimately established the desired communication. On the other hand, the fact that plaintiff Butler has on some occasions been heard by this court is at least prima facie evidence tending to disprove his charge, and an isolated instance of confiscation of legal material occurring, for example, as part of a seizure of contraband materials will not suffice, absent further proof of malintent, to prove attempted obstruction of access to the courts.

We note the Seventh Circuit's recent and continued decisions safeguarding and expanding inmates' rights in this area. In Adams v. Carlson, supra, the court held as a violation of due process a bisected attorney-client visitation room when the Government failed to justify on security grounds sufficient reasons to lessen the "personal interplay between inmates and counsel," or to "restrict the ease with which attorney-client meetings could be carried on." Adams v. Carlson, supra at 631. The court further stated:

  [A]n inmate's right of unfettered access to the
  courts is as fundamental a right as any other he may
  hold. (Citations omitted). All other rights of an
  inmate are illusory without it, being entirely
  dependent for their existence on the whim or caprice
  of the prison warden. 488 F.2d at 630.

We cannot find based upon the record before us that Robert Butler clearly had "unfettered access" to the courts during the relevant time period. ...


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