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June 26, 1997

TERRELL WALTERS and JOSEPH GANCI, and all others similarly situated, Plaintiffs,

The opinion of the court was delivered by: BUCKLO

 On August 28, 1995, I issued an opinion finding that inmates in segregation at three Illinois maximum security correctional centers, Menard, Joliet and Pontiac prisons, did not have reasonable access to court. I found that plaintiffs had failed to prove that inmates at Dixon Correctional Center did not have access to court. I deferred making findings regarding Stateville Correctional Center until after a supplemental hearing limited to specific issues. That supplemental hearing was held on November 9, 1995, and the parties thereafter submitted memoranda. The parties also submitted memoranda on the question of an appropriate remedy for the institutions as to which I had found violations existed.

 Meanwhile, on May 22, 1995, the United States Supreme Court had taken certiorari in Casey v. Lewis, 43 F.3d 1261 (9th Cir. 1994), a case that involved many of the same issues raised by the present case, and on which I had relied in reaching several conclusions. I decided that my decision on remedy and findings with respect to Stateville should wait for the Supreme Court's decision in Casey. In that decision, announced on June 24, 1996, Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606, the Supreme Court reversed the Ninth Circuit and substantially changed the law that had evolved in lower court decisions interpreting prior Supreme Court decisions on prisoner access to the courts. On June 27, 1966, I set a status hearing to discuss the effect of the Supreme Court's decision on the pending case. Following that hearing, concluding that the plaintiffs could not have expected at least that part of the decision that required the named plaintiffs to have proved individual prejudice at trial, *fn1" and in view of the amount of work and time that had gone into this case, I allowed the plaintiffs to reopen the testimony to attempt to meet the requirements of Lewis v. Casey.2 This opinion represents my supplemental findings and conclusions following that testimony and defendants' rebuttal.

 Although this opinion assumes the reader is familiar with my prior opinion, since the importance of the supplemental hearing and my findings with respect to it need to be placed in the context of the Supreme Court's decision in Lewis v. Casey, I will begin with a review of that decision. Interpreting the Supreme Court's decision in Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), in which the Court had held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law," the district court and Ninth Circuit had held that Arizona failed to provide inmates with adequate access to the courts because of various shortcomings. The district court entered a wide ranging remedial order which was affirmed by the Ninth Circuit. Lewis v. Casey, like the present case, was a class action brought on behalf of prisoners in various correctional institutions. In reversing the lower courts, the Supreme Court did not reject its earlier holdings that prisoners have a constitutional right of access to the courts (although it made clear that this right was limited to cases in which a prisoner desired to challenge his sentence or conditions of confinement), *fn3" but the majority imposed two significant procedural limitations in class actions. *fn4" First, the Court held that named plaintiffs in a class action must not only allege but prove that they suffered actual injury of the type for which they seek a remedy. This meant, according to the majority, that named plaintiffs must prove, for example, that they had lost a court case because they could not have known of some requirement due to deficiencies in the legal assistance with which they were provided, or that they could not file a complaint because of inadequacies in a library or legal assistance and therefore "suffered arguably actionable harm." 518 U.S. 343, 116 S. Ct. 2174 at 2180, 135 L. Ed. 2d 606. Second, the court held that system-wide relief could only be ordered for widespread violations of the specific type suffered by named plaintiffs. 116 S. Ct. at 2184.

 A majority of the Supreme Court characterized the first requirement as jurisdictional, involving standing. While it is clear that a majority of the Court would not confer standing on the basis of a frivolous claim, see 116 S. Ct. at 2181 and n.3, the actual injury requirement appears to be satisfied by allegations and proof that a plaintiff wanted to present and was unable to present a claim having arguable merit. Id. In a class action, if one of the named plaintiffs satisfies this requirement at trial, standing as articulated by the majority is satisfied. A court can then lock at injuries suffered by other plaintiffs of the same type in determining the scope of appropriate relief. Id. at 2183.

 Conversely, unless a plaintiff presents some proof that his claim has merit, the requirement is not satisfied. Plaintiffs rely on cases such as Gentry v. Duckworth, 65 F.3d 555, 559 (7th Cir. 1995), decided prior to Lewis v. Casey, in which the Seventh Circuit held that at the pleading stage, only patently frivolous cases should be dismissed. The present decision follows trial. In that respect, while plaintiffs need not prove that they would have prevailed in their underlying claims, they must show they have arguable merit. Lewis v. Casey, 116 S. Ct. at 2181 n.3 ("Depriving someone of an arguable (though not yet established) claim inflicts actual injury because it deprives him of something of value -- arguable claims are settled, bought and sold. Depriving someone of a frivolous claim, on the other hand, deprives him of nothing at all, ..."). Accord, Pilgrim v. Littlefield, 92 F.3d 413, 416, 417 (6th Cir. 1996) (both majority and dissent agreeing that in a denial of access case following Lewis v. Casey, plaintiff must plead and prove prejudice as a result of the alleged violation).

 Named plaintiffs Terrell Walters and Joseph Ganci did not testify in the trial in this case, nor in the supplemental evidentiary hearing limited to Stateville. No other evidence was offered to prove their individual claims of harm. Accordingly, under Lewis v. Casey,5 unless at least one of them has satisfied the standing requirement articulated in that case in the most recent supplemental hearing, this case must be dismissed in its entirety.


 Joseph Ganci is a 49 year old man who has been imprisoned since 1976 on convictions of murder and attempted murder. At various times he has been housed in each of the correctional institutions involved in this case. At trial *fn6" he testified regarding numerous claims that he either wanted to bring or brought unsuccessfully. Since in their post-trial memorandum, however, plaintiffs have discussed only two of those claims, I am assuming plaintiffs are not pursuing any other claim and I will not discuss any other claim.

 The first issue raised by Mr. Ganci is that he was unable in a timely fashion to raise, either in a post-conviction or habeas corpus petition, a claim that at his criminal trial the court instructed the jury on his theory of self-defense under instructions that have since been held to have improperly shifted the burden of proof from the State to the defendant. People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1 (1988). Mr. Ganci says he never was able to obtain a new trial on this issue because by the time he obtained sufficient help to raise the issue the Illinois Supreme Court had ruled that its holding in Reddick was not retroactive, see People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674, 149 Ill. Dec. 304 (1990), and the United States Supreme Court held that the jury instructions about which Mr. Ganci complains did not provide a right to relief pursuant to a petition for habeas corpus. Gilmore v. Taylor, 508 U.S. 333, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993). Mr. Ganci filed a post-conviction petition in 1986, the dismissal of which was affirmed by the Illinois appellate court in 1993. The appellate court ruled against Mr. Ganci on the basis of Flowers and Gilmore.

 Mr. Ganci's claim of prejudice insofar as it relates to this case depends first, on whether there is proof that he would have presented an arguably meritorious claim for a new trial if he had been able to raise the claim earlier, and second, whether he was in segregation during the applicable time period. Unfortunately, Mr. Ganci can prevail on neither of these issues. As Mr. Ganci notes, the legal question raised by him regarding the jury instructions was held not to provide a basis for habeas corpus. Since, in addition, the Illinois Supreme Court decided that it would not make its ruling in Reddick retroactive, the only way Mr. Ganci would have obtained the benefit of the ruling was to raise it in his direct appeal, presumably obtaining the same ruling as in Reddick. Mr. Ganci did not do so, however. People v. Ganci, 57 Ill. App. 3d 234, 372 N.E.2d 1077, 14 Ill. Dec. 798 (1978). Mr. Ganci was represented by counsel on that appeal. The fact that counsel represented him on appeal, however, satisfies the requirements of Bounds v. Smith.

 Even if Mr. Ganci could overcome the fact that he was represented by counsel during the relevant appeal, Mr. Ganci's claim that he suffered prejudice through denial of access to the court to challenge the jury instructions under which he was convicted suffers from a second problem. During some of the period during which Mr. Ganci says he needed assistance he was not in segregation. This suit is limited to prisoners who were denied access to courts as a result of conditions peculiar to the fact that they were in segregation. If an inmate would have had the same access to the courts as any other inmate in the general population, he is not part of this suit. In this case, while Mr. Ganci was in segregation during substantial periods of time, he has not shown that he could not have filed or pursued either the post-conviction petition or a petition for habeas corpus during times when he was in the general population.

 Mr. Ganci also argues that he was unable effectively to bring a second claim in court as a result of inadequate legal assistance. This claim involves a loss of a year's "good time" as a result of an Adjustment Committee decision in 1983. Mr. Ganci says that at that time he held a correctional officer at knife point. When he was charged with an offense before the Adjustment Committee as a result, he believed he would also be charged criminally, and therefore refused to speak without consulting with a lawyer. He argues that the failure to provide him counsel in a situation in which he might have been charged with a criminal offense as well as before the Adjustment Committee violated his right to have counsel represent him. But the Supreme Court has long held that a defendant does not have a right to counsel at a prison disciplinary hearing. Wolff v. McDonnell, 418 U.S. 539, 570, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Furthermore, Mr. Ganci has not shown that if he had had an attorney there is any basis for believing there would have been a different outcome in his disciplinary hearing. He does not deny the conduct of which he was accused and his statement at trial as to what he would have told the Adjustment Committee if he had ...

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