The opinion of the court was delivered by: SHADUR
Paul Knox ("Knox") initially tendered a self-prepared 42 U.S.C. § 1983 ("Section 1983") Complaint against former Illinois Department of Corrections Director Kenneth McGinnis ("McGinnis") and Stateville Correctional Center ("Stateville") Warden Thomas Roth ("Roth"). Knox charged that it is unconstitutional, in the course of transporting inmates who are confined to segregation, to use a restraint that comprises a waist chain, handcuffs and a black box covering the chain between the handcuffs. Because this Court's threshold review of the Complaint suggested that it had surmounted the low threshold of legal non-"frivolousness" (as that standard has been defined in Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989)), it followed its customary practice in such cases of (1) granting leave to Knox to proceed in forma pauperis and (2) appointing counsel from this Court's trial bar to represent Knox pro bono publico.
Now defendants have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, their motion is granted and this action is dismissed.
This District Court has promulgated its General Rule ("GR") 12(m) and 12(n) to implement the procedure called for by Rule 56. Defendants have not only complied with the timetable that this Court had set for their opening submission
but have also submitted the required GR 12(m) statement.
Knox' response is nearly a month overdue, which (1) under GR 12(n) causes the material facts that were set forth in defendants' GR 12(m) statement to be deemed admitted and (2) under GR 12(p) permits this Court to proceed on the basis of the single submission. Ordinarily this Court would, instead of invoking GR 12(n) and 12(p), have its staff pursue the delinquent lawyer by one or more telephone calls asking that he or she tender the necessary filing in opposition -- especially where the delinquent lawyer is an appointed rather than retained counsel, so that it would be unfair to visit any sins of the lawyer on the client (contrast Link v. Wabash R.R., 370 U.S. 626, 633-34, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962)
In this instance, however, the legal situation is so plain that the case can fairly be dealt with in its present posture. As for the underlying facts, defendants rely entirely on Knox's own sworn deposition testimony (D. Ex. 3) and on his disciplinary record that led to the use of the challenged device when he left the segregation unit to meet with visitors and for trips to the hospital or law library (D. Exs. 1, 2 and 4). Defendants' GR 12(m) statement is sufficiently brief and straightforward that it is attached to this opinion -- and it constitutes the factual backdrop for discussion of the legal questions.
In an effort to extricate themselves entirely from this type of litigation, defendants invoke the seminal teaching of Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (citations and footnotes omitted):
We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful.
But defendants' effort to obtain total dismissal on that ground is an oversimplification, because qualified immunity would not insulate them from the injunctive relief that Knox seeks to obtain against any future use of the restraints (such a prayer for relief states an official-capacity rather than an individual-capacity claim, so that qualified immunity does not apply). This opinion will therefore have to deal with that issue a bit later.
As for Knox's damages claim, however, defendants are right. Anderson v. Creighton, 483 U.S. 635, 638-40, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987) has explicated the concept of "clearly established" rights for purposes of applying the Harlow principle. There is no way in which the prior use of the restraint that Knox challenges in this case could be said to have been violative of a prisoner's "clearly established" Eighth Amendment right to be protected from "cruel and unusual punishment."
Not only has the prior case law looked in the other direction, with the one Court of Appeals that had considered the issue having found the practice of using the "black box" to be constitutional ( Fulford v. King, 692 F.2d 11, 13, 14-15 (5th Cir. 1982)
), but the most recent decision by our Court of Appeals has foreclosed any arguable notion that the Eighth Amendment would be read so expansively in the prison context as to subject defendants to this lawsuit ( McGill v. Duckworth, 944 F.2d 344, 1991 U.S. App. LEXIS 21802 (7th Cir. Sept. 17, 1991)).
Even were qualified immunity not available to insulate defendants from any liability for damages, Knox would fail in this action because nothing at all ties either McGinnis or Roth personally to the assertedly wrongful conduct. Knox Dep. 42-43 reflects that he never communicated with either defendant on the subject -- instead he named each as a defendant in this action solely on the basis that "he should know" about the procedure and practice. That of course does not do the job, because Section 1983 liability must be predicated on personal involvement -- but this opinion has nonetheless dealt with the broader exculpation that is provided by ...