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STEWART v. MCGINNIS

August 4, 1992

CHARLES STEWART Plaintiff,
v.
KENNETH MCGINNIS, MICHAEL O'LEARY, THOMAS ROTH, DARRELL COBB, THEOPHILUS SMITH and MARIE JORDAN in their official and individual capacities, Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Charles Stewart ("Stewart") brings this 42 U.S.C. § 1983 ("Section 1983") action against various Illinois Department of Corrections ("IDOC") and Stateville Correctional Center ("Stateville") officials in both their individual and official capacities. Stewart asserts that he has suffered several constitutional violations during his incarceration at Stateville, and he seeks an award of damages plus declaratory and injunctive relief.

 Each side has now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated at length in this memorandum opinion and order, defendants' motion is granted and this action is dismissed.

 Rule 56 Principles

 Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to the nonmovant--in this case (1) defendants as to Stewart's motion and (2) Stewart as to defendant's motion ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (citations omitted)). Where as here cross motions are involved, that principle thus demands & dual perspective--one that this Court has often described as Janus-like--that sometimes causes the denial of both motions.

 In this instance, the task has been further complicated by both sides' failure to comply with this Court's General Rule ("GR") 12(m) and 12(n), which require factual statements in support of and in opposition to Rule 56 motions. Although each side has filed a GR 12(m) statement in support of its own motion, *fn1" neither side has tendered a GR 12(n) response. GR 12(n) provides:

 All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.

 Thus each side has effectively admitted the facts contained in the opponent's GR 12(m) statement ( Schulz v. Serfilco, Ltd., No. 91-1873, 1992 U.S. App. LEXIS 13634, at *6-9 (7th Cir. June 17, 1992) is only one of a number of cases in which our Court of Appeals has recently enforced the rule with considerable stringency)--except to the extent that those facts are contradicted by the party's own GR 12(m) statement.

 Yet even that relatively straightforward principle is complicated in this instance. First, defendants' GR 12(m) statement, which consists of a brief 15 paragraphs, fails to address most of the circumstances at issue in this litigation. And even worse, Stewart's comparatively long 196-paragraph GR 12(m) statement includes numerous assertions that either are not supported or are actually contradicted by the record, so it tends to obfuscate as much as to clarify the relevant facts. Even in the absence of a GR 12(n) response, Stewart cannot establish undisputed facts merely by asserting them in his GR 12(m) statement. Instead GR 12(m) requires that those statements be supported by "specific references to the affidavits, parts of the record, and other supporting materials."

 After careful sorting, this Opinion therefore derives its undisputed facts from each side's (mostly Stewart's) GR 12(m) statement, where those asserted facts are supported by record evidence identified there. In each instance where factual disputes exist, (recognizable despite the absence of a GR 12(n) response, when Stewart's own GR 12(m) citations point to contradictory evidence), they are nonmaterial (that is, nonoutcome-determinative ( Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir. 1986)).

 Parties

 Stewart was incarcerated at Stateville between August 1987 and July 1991 (D. 12(m) P 2), when he was transferred to Logan Correctional Center (Stewart Aff. P 3). Stewart lived in Stateville's G Unit from July 1988 through the end of his Stateville stay (id. P 2).

 Kenneth McGinnis ("McGinnis") was the IDOC Director during the time period relevant to this litigation. Michael O'Leary ("O'Leary") was the Stateville Warden between 1983 and February 1990, when Thomas Roth ("Roth") *fn2" took over the post (Roth had been Assistant Warden during 1989). Darrell Cobb ("Cobb") was the Superintendent of G Unit during the entire period of Stewart's residence there. Theophilus Smith ("Smith") is a casework supervisor at Stateville and a member of the Stateville adjustment committee. Marie Jordan ("Jordan") is a correctional counselor at Stateville and also Sits on the adjustment committee. *fn3"

 Although defendants have not raised the issue, Stewart's standing to seek injunctive and declaratory relief must be established before the substance of those claims may be addressed. City of Los Angeles v. Lyons, 461 U.S. 95 (1983) has held that to satisfy the Article III case or controversy requirement a Section 1983 plaintiff seeking injunctive relief must be able to establish a personal stake in the outcome of his or her claim by showing a "real or immediate threat that the plaintiff will be wronged again" ( id. at 111). Citing O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (a case involving discriminatory enforcement of the criminal law), Lyons, 461 U.S. at 102 explained:

 Although it was claimed in that case that particular members of the plaintiff class had actually suffered from the alleged unconstitutional practices, we observed that "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." Past wrongs were evidence bearing in "whether there is a real and immediate threat of repeated injury." But the prospect of future injury rested "on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners."

 And Robinson v. City of Chicago, 868 F.2d 959, 966-67 (7th Cir. 1989) has held that the Lyons rule applies to declaratory as well as to injunctive relief.

 Because Stewart was transferred out of Stateville in July, 1991, he is clearly under no threat of repeated injury. Thus he has no stake in the outcome of his declaratory and injunctive claims, and he therefore lacks standing to pursue them. Defendants' motion for summary judgment on those claims is therefore granted, and the rest of this opinion deals only with Stewart's claims for damages. *fn4"

 Deprivation of Property (Count I)

 Stewart's first claim involves property removed from his cell during two "shakedown" searches. Such searches of inmate cells are conducted periodically and without advance notice. Inmates are removed from their cells while officers search for and remove contraband and unauthorized property. At Stateville confiscated property is supposed to be tagged and sent to a property storage room, and inmates are supposed to receive a "shakedown slip" listing all property taken from their cells (Cobb Dep. 12-13, 26-28). Then 20 Ill. Admin. Code § 501.230 *fn5" deals with the later disposition of that property:

 1) Have the property shipped at his own expense or have it picked up at the facility during certain hours by a person designated in writing.

 2) Request in writing that the property be destroyed.

 3) Indicate, in writing, that he has filed a grievance regarding the confiscation of the property.

 * * *

 e) Property which a committed person does not have shipped, picked up from the facility or destroyed within 30 days of notice of confiscation, or where the owner cannot be identified shall be sold, made [a] State loan, given to a charitable organization or destroyed, as determined by the chief Administrative Officer. The Chief Administrative Officer may hold the property for an additional 30 days when it is not possible for the property to be picked up within 30 days of notice of confiscation. Any proceeds from the sale of confiscated property shall be deposited in the Inmate's Benefit Fund.

 f) If a committed person grieves the confiscation of excess or unauthorized property within 30 days of the notice of confiscation, the property shall be retained at the facility until the grievance procedure has been completed.

 Stewart claims that his due process rights were violated when that procedure was not followed after two shakedowns conducted on July 5, 1989 and May 24, 1990 (P. 12(m) PP I.32, I.36). Stewart asserts that on that first occasion a fan, a pair of blue jeans and legal papers belonging to him were removed from his cell (P. 12(m) P I.33). However, the shakedown slip that was issued to Stewart and his cellmates on July 5 lists only the following items as having been removed: 4 mattresses, 25 sheets, 4 pillow cases, 1 wooden rod, 3 pillows, 3 desks, 1 roll cart, 1 "letter telling about drugs" and 1 Panasonic 10" fan (P. Ex. I(1)). On July 8 a disciplinary report listing those same items and charging Stewart with possession of unauthorized property was issued (D. 12(m) P 12; D. Ex. A-2; P. Ex. IV(9)). *fn6" Although Stewart states that he received no bearing following that shakedown (Stewart Aff. P 9), both Stewart and defendants have provided an "adjustment committee summary" describing a disciplinary hearing held on July 12 as to the unauthorized property found in Stewart's cell (D. 12(m) P 13; D. Ex. A-3; P. Ex. IV(5)). *fn7" That summary indicates that Stewart testified and was found guilty of maintaining unauthorized property. As for the final disposition of Stewart's property, the shakedown slip indicates that the items were "broken-junk" and were "disposed" on August 11, 1989 (P. Ex. I(1)). *fn8" Thus the fate of Stewart's claimed blue jeans and legal papers, never officially noted as having been removed from his cell, is unknown.

 As for the May 24, 1990 shakedown, Stewart asserts that a pair of blue jeans, a fingernail clipper, tweezers, a pair of shoes and a jogging suit were removed from his cell and that he never received a shakedown slip or a hearing regarding their confiscation. Stewart assumes that those items were also destroyed, but he points to no evidence supporting that contention (P. 12(m) PP 36-38). *fn9"

 Stewart's procedural due process claim poses two different analytical problems. That stems from the different handling (or lack of handling) of the property involved.

 First, unlike the other assertedly confiscated property, Stewart's fan was removed and later handled according to IDOC's standard procedure. Stewart received a shakedown slip documenting its removal on July 5 and a disciplinary ticket on July 8 indicating that the fan was unauthorized property. Then the fan was retained in accordance with the Section 501.230(e) 30-day requirement and was destroyed on August 11 as authorized by that section. During that 30 day period Stewart had an opportunity to initiate a grievance procedure (Section 501.230(f)), but he did not do so. Stewart therefore received notice and had an opportunity to be heard before the fan was destroyed. *fn10" Plainly his procedural due process rights were not violated by defendants' handling of his fan.

 As for the remainder of his allegedly confiscated property (confiscation is assumed for purposes of defendants' Rule 56 motion), Stewart received no notice of its removal, received no hearing to determine whether it was unauthorized or contraband and had no opportunity to initiate a grievance procedure. All he knows is that the property disappeared from his cell on the day of the searches and that it was never returned to him. Nonetheless, Stewart's due process claim again fails.

 Hudson v. Palmer, 468 U.S. 517 (1984), which found no due process violation under essentially identical circumstances, necessarily controls here. Like Stewart, Palmer claimed that he was deprived of property without due process when some of his personal belongings were destroyed during a shakedown of his cell. Hudson extended the Court's earlier holding in Parratt v. Taylor, 451 U.S. 527 (1981), which had then held that the negligent loss of property by prison employees does not violate the Due Process Clause as long as adequate postdeprivation remedies are available. *fn11" Parratt, id. at 539 had explained:

 Either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process.

 Parratt, id. at 541 found that a predeprivation hearing was not possible for the negligent loss of property because even though suffered "under color of law," the loss was unpredictable and beyond the state's control:

 In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the state as action under "color of law," is in almost all cases beyond the control of the state. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.

 Hudson, 468 U.S. at 532-33 reasoned that the "practicability" of predeprivation procedures was not affected by whether or not the employee's action was intentional. Instead the relevant distinction was whether the deprivation resulted from "conduct pursuant to established state procedure" or whether it was rather " effected through random and unauthorized conduct of a state employee" (id.). Only in the former situation was the deprivation foreseeable so that the state could be expected to provide predeprivation process. *fn12" Hudson, id. at 533 thus concluded that Parratt applied with equal force to all "random and unauthorized" employee conduct, whether that conduct was negligent or intentional:

 Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.

 Hudson, id. at 534 also held that whether the individual state agent may have known of the deprivation in advance was irrelevant, because "the controlling inquiry is solely whether the state is in a position to provide for predeprivation process." *fn13"

 Stewart says that his case is distinguishable from Hudson because of the fact that shakedown searches, conducted at Stateville on a regular basis pursuant to established procedures, are authorized and predictable (P. Mem. 3). But that is of course irrelevant. Such searches, conducted elsewhere as they were at Stateville without notice and without inmates being present, have been held not to violate either the Fourth Amendment *fn14" or the Due Process Clause as such because of the role played by the shakedown process in maintaining prison security ( Hudson, 468 U.S. at 522-30; Block v. Rutherford, 468 U.S. 576, 589-91 (1984); Bell v. Wolfish, 441 U.S. 520, 555-57, 560-61 (1979)). What Stewart must instead assert as the potentially actionable deprivation is the destruction of his property following such searches without his being afforded either notice or a hearing. And so the relevant question here as in Hudson is whether that destruction of Stewart's property was "random and unauthorized" or was "pursuant to an established state procedure."

 Stewart has failed, even with all reasonable inferences in his favor, to raise a question of fact on that issue. His apparent attempt ...


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