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BANKS v. SHEAHAN

December 29, 1995

RANDY J. BANKS, a/k/a Hiram Abiff, Plaintiff,
v.
MICHAEL F. SHEAHAN, Cook County Sheriff, and J.W. FAIRMAN, Cook County Jail Director, Defendants.



The opinion of the court was delivered by: HART

 Pro se plaintiff Randy Banks, a/k/a Hiram Abiff, *fn1" claims that defendants Michael Sheahan, the Sheriff of Cook County, and J.W. Fairman, the director of the Cook County Jail, deprived him of his constitutional right of access to court while he was incarcerated at the Cook County Jail. *fn2" Plaintiff claims that he informed Sheahan and Fairman that he had not been permitted to take his legal papers when he was transferred to an Indiana prison and requested their assistance in forwarding the papers, but they failed to take any action. Plaintiff also claims that loss of those papers interfered with a pending criminal appeal and also prevented him from filing civil actions alleging constitutional deprivations while he was held at Cook County Jail. The transfer occurred on October 2, 1991 and the requests for defendants' assistance occurred in October and November of that year. Presently pending is defendants' motion for summary judgment.

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movants. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movants need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

 
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 When filing their motion for summary judgment, defendants informed pro se plaintiff of the procedures for summary judgment as is required under Seventh Circuit law. See Timms v. Frank, 953 F.2d 281, 285-86 (7th Cir.), cert. denied, 504 U.S. 957, 112 S. Ct. 2307, 119 L. Ed. 2d 228 (1992); Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). Plaintiff complains that he is incapable of properly responding to a motion for summary judgment, but it has previously been determined that plaintiff is not entitled to the appointment of counsel. A "jailhouse lawyer," however, has provided assistance to plaintiff and that person was permitted to file an "amicus" brief responding to the motion for summary judgment. Also, the court will consider the legal merits regardless of whether plaintiff makes an adequate legal argument; it is only expected that plaintiff will make an adequate presentation of the facts, something he is capable of doing even absent legal training.

 Plaintiff also complains that he has not had access to copies of documents he previously filed with this court (Docket Item 11). They are primarily correspondence with defendants or other Cook County Jail personnel regarding the return of plaintiff's documents. On the present summary judgment motion, defendants do not dispute that plaintiff lost legal documents, requested defendants' assistance, or that they failed to find the documents for him. Defendants can be held liable for failing to take action after being informed legal documents had been taken. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992); Banks, 1994 186022 at *2. However, if at the time they were informed of the missing legal documents, they could no longer have done anything to successfully find the documents, they would not be responsible for the missing documents and there would be no basis for liability. These factual issues are not raised by the present motion. There is also no contention that intentionality is at issue. See generally Gregory v. Nunn, 895 F.2d 413, 414-15 (7th Cir. 1990). As will be discussed below, these issues should be addressed. For purposes of the present motion, though, it must be assumed that defendants can be held responsible for the missing documents. Therefore, plaintiffs' access to the Docket Item 11 documents was not essential to the preparation of his response and, in any event, Docket Item 11 has been considered by the court. For future use, however, a copy of Docket Item 11 is being sent to plaintiff with a copy of today's opinion.

 Additionally, defendants provide a copy of plaintiff's entire deposition. The entire deposition is being considered in determining if there are any genuine factual disputes. Defendants' motion for summary judgment will be considered on its merits. *fn3"

 Defendants contend that the principles enunciated in Heck v. Humphrey, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), bar plaintiff's access to court claim. Heck holds that claims, the successful prosecution of which necessarily imply that the plaintiff's related convictions are invalid, may not be brought before the related convictions are first reversed or overturned. 114 S. Ct. at 2372 & nn. 6-7. See also Perez v. Sifel, 57 F.3d 503, 505 (7th Cir. 1995); Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir. 1995); Booker v. Ward, 888 F. Supp. 869, 873-76 (N.D. Ill. 1995). Defendants cite various cases applying Heck that they contend are factually indistinguishable from the present case. However, none of those cases involve access claims. The Seventh Circuit has made clear that the detriment component of an access claim does not require proof that there would have been a different result in the case or potential case that the denial of access affected. Gentry, 65 F.3d at 559 ("Prejudice to the right of access to the courts occurs whenever the actions of a prison official causes court doors to be actually shut on a complaint, regardless of whether the suit would ultimately have succeeded."). Therefore, success on an access claim does not necessarily imply that a related conviction must be overturned. To the extent plaintiff could show that he was denied access that would otherwise have resulted in his conviction being overturned, prior to actually overturning his conviction he cannot obtain damages based on being wrongly convicted, but he is not barred from bringing suit and seeking other damages. Booker, 888 F. Supp. at 875-76. Although it did not expressly consider Heck, Gentry, 65 F.3d at 559-60, specifically holds that a convicted plaintiff can bring suit on a claim alleging interference with a habeas corpus proceeding even if that person has not succeeded in overturning the related conviction. Additionally, plaintiff's claims are not limited to interference with his criminal proceeding. Plaintiff's access claims are not subject to dismissal based on Heck v. Humphrey.

 Defendants also contend that plaintiff's claim fails because he cannot show that the alleged interference caused any detriment. As stated, the detriment element of an access claim does not require proof that the plaintiff would have succeeded in the litigation that was affected by the interference.

 
"Detriment" means some sort of real prejudice. This is apparent from our most frequent formulation of the test: that the prisoner must show "some quantum of detriment caused by the challenged conduct of state officials resulting in the interruption and/or delay of plaintiff's pending or contemplated litigation." Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir. 1994); Shango [v. Jurich], 965 F.2d [289,] 292 [(7th Cir. 1992)]; Hossman [v. Spradlin], 812 F.2d [1019,] 1021 n.2 [(7th Cir. 1987)]. The phrasing means that a detriment must exist, a detriment resulting from illegal conduct that affects litigation. It does not mean that any delay is a detriment. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992), cert. denied, 506 U.S. 1062, 113 S. Ct. 1002, 122 L. Ed. 2d 152 (1993). Regardless of the length of an alleged delay, a prisoner must show actual substantial prejudice to specific litigation. Id. If a mere allegation of some delay, even to contemplated litigation were adequate, the second part of the test would have no real import.

 Gentry, 65 F.3d at 559. "The right of access is at its base a right to be heard. Therefore, a total loss of the opportunity to raise one's voice in the courts is itself the requisite detriment." Id. The lack of merit of the related legal proceeding only precludes satisfaction of the detriment requirement if the interfered with proceeding, on its face, lacked any rationality. Id. at 560.

 At his deposition, plaintiff described the documents he lost as follows:

 
Q: Now, you say, "property." What did that include? Could you describe ...

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