United States District Court, N.D. Illinois
January 20, 2004.
EARL SIDNEY DAVIS, Plaintiff,
DAVE BIERMAN, FRANCINE POWELL, and TIMOTHY J. BUDZ, Defendants
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Earl Sidney Davis filed a complaint against defendants Dave
Bierman, Francine Powell, and Timothy J. Budz alleging their violation of
42 U.S.C. § 1983 ("section 1983"). Plaintiff is a civil detainee at
a state facility, and defendants are all former and/or current employees
thereof. His two-count complaint alleges that defendants confiscated
certain legal documents (Count I) and blocked his telephone calls to his
attorneys (Count II), thereby blocking his access to the courts in
violation of his due process rights under the Fourteenth Amendment.
Plaintiff is suing defendants, all former and/or current state employees,
in their individual and official capacities.
Defendants' motion for summary judgment is now before this court.
Defendants contend that Plaintiff's claims fail because he cannot
establish that he was denied his constitutional right of access to the
courts. Moreover, they contend that; Plaintiff's claims against
defendants in their official capacities are barred by the Eleventh
Amendment; two of three defendants (Bierman and Powell) had no
involvement in the events forming the basis for Count II of the
complaint; and, in any event, all three defendants are entitled to
For the reasons set forth below, defendants' motion for summary
judgment in their favor is granted, and the complaint is dismissed in its
I. Summary Judgment Standard
At summary judgment, the court must view the facts in the light most
favorable to the nonmoving party and draw all reasonable inferences in
its favor, See, e.g., Krchnavy v. Limagrain Genetics Corp.,
294 F.3d 871, 875 (7th Cir. 2002). Summary judgment is appropriate if "the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(e); Schuster v.
Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003)
(quoting Fed.R.Civ.P. 56(c)), A triable fact issue exists "only if
there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party." Schuster, 327 F.3d 569, 573
(7th Cir. 2003) (quoting Wade v. Lerner New York, Inc.,
243 F.3d 319, 321 (7th Cir. 2001) (quotation omitted)).
The movant bears the initial burden of establishing that there is no
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548 (1986). "Because the purpose of summary
judgment is to isolate and dispose of factually unsupported claims," the
non-movant must then present specific facts showing that there is an
issue for trial. Michael v. St. Joseph County, et at,
259 F.3d 842, 845 (7th Cir. 2001) (quoting Fed.R.Civ.P. 56(e)).
To successfully oppose the motion, the non-movant 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, Celotex, 477 U.S. at 324. A scintilla
of evidence in support of the non-movant's position is insufficient to
defeat a summary judgment motion; `there
must be evidence on which the jury could reasonably find for the
[non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 2510 (1986). Summary judgment must be entered
against a party who fails to establish the existence of an element
essential to his case and on which he will bear the burden of proof at
trial. Celotex, 477 U.S. at 322.
II. Factual Background
A. The Parties' L.R. 56.1 Submissions
In responding to defendants" statement of material facts, and in
setting forth his own statement of additional facts, plaintiff
substantially failed to follow the dictates of the Local Rules. To a
lesser extent, defendants failed to follow the Local Rules in responding
to Plaintiff's statement of additional facts.
LR 56.1 requires the moving party to set forth a statement of material
facts consisting of numbered paragraphs supported by specific references
to affidavits, parts of the record, or other evidentiary materials.
See LR 56.1(a). The non-moving party must then respond with a
statement either admitting or denying the moving party's numbered facts
paragraphs. Specifically, LR 56.1 requires that the non-moving party
respond to each paragraph and, where lie disagrees, provide specific
references to affidavits, parts of the record, or other evidentiary
materials to support his disagreement, See LR 5d.l(b)(3)(A).
The same rules apply to the non-moving party's LR 56.1(b)(3)(B)
statement of additional facts and to the moving party's response thereto.
That is, the non-moving party's statement of additional I acts must also
consist of numbered paragraphs supported by specific references to
affidavits, parts of the record, or other evidentiary materials.
Likewise, the moving party must support any stated disagreement with the
non-moving party's additional facts by providing
specific references to affidavits, parts of the record, or other
evidentiary materials. See LR 56.1,
When a party fails to admit or deny a fact in the manner prescribed by
the Local Rules, the fact shall he deemed admitted. See LR
56.1(b)(3)(B); see also Federal Trade (Commission v. Febre,
128 F.3d 530, 536 (7th Cir. 1997) (holding that district courts may deem
party's facts admitted where adverse party fails to properly admit or
deny the same), In short, "[a]n answer that does not deny the allegations
in the numbered paragraph with citations to supporting evidence in the
record constitutes an admission." Jupiter Aluminum Corp. v. Home Ins.
Co., 225 F.3d 868, 871 (7th Cir. 2000) (internal quotations and
Rather than admitting, or denying defendants' facts properly, plaintiff
alternatively. (1) admitted portions of fact paragraphs, but failed to
admit or deny the remainder of those paragraphs; (2) declined to admit or
deny facts on the grounds that he lacked the requisite "personal
knowledge;" (3) simply stated that he "agrees" with certain facts; (4)
admitted certain facts, but nonetheless stated that he "takes exception"
to them because of other additional facts that he believes are important;
and (5) admitted "(acts" different from those specifically set forth by
defendants. This court deems all such facts admitted, See, e.g.,
Jupiter, 225 l F.3d at 871; McGuire v. Untied Parcel
Service, 152 F.3d 673, 675 (7th Cir. 1998); Febre, 128 F.3d at 536,
Moreover, in setting forth his own statement of additional facts,
plaintiff frequently cited his complaint as support for his asserted
facts. This tactic is improper and insufficient at the summary judgment
stage. It is well settled that, to withstand a motion for summary
judgment, the non-moving party must go beyond the pleadings and point to
competent record evidence establishing the existence of a genuine fact
issue for trial. See Celotex, 477 U.S. at 324. Indeed, Fed, R,
Civ. P. 56(e) provides, "When a motion for summary judgment is made and
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading." As such, those
factual assertions set forth by plaintiff and supported by citation to
his complaint have been disregarded by the court. Seealso Bliss v.
Jennifer Convertibles, Inc., No. 01 C 8661, 2003 U.S. Dist. LEXIS
17435, at *44 n.14 (N.D. Ill. Sept. 30, 2003) (stating that plaintiff
could not rely upon his complaint as "evidence" at the summary judgment
Plaintiff also cited numerous free-standing, unauthenticated documents
in support of his statement, of additional facts. As presented to the
court, these documents do not constitute competent record evidence and do
not suffice to create a genuine issue of material fact. See
F.R.E. 901. The cited documents suffer from additional evidentiary
deficiencies and, even setting aside all of their evidentiary
deficiencies, do not suffice to create a genuine issue of material fact.
Defendants also (ailed to admit or deny several fact paragraphs
properly. Specifically, in several instances, rather than expressly
admitting or denying fact paragraphs, defendants simply admitted that
plaintiff testified to the statements set forth therein. All such facts
are deemed admitted, as well. See, e.g., Jupiter, 225 F.3d at
871; McGuire, 152 F.3d at 675; Febre, 128 F.3d at 536.
B. The Parties
Plaintiff is currently a civil detainee in the Sexually Violent Persons
Unit at the Illinois Treatment and Detention Facility in Joliet, Illinois
("Facility"'). He was previously convicted of
aggravated criminal sexual assault and sentenced to fifteen years
in the Illinois, Department of Corrections ("IDOC"). He served all or
part of his sentence within 1DOC before he became a civil detainee at the
During the relevant time period, the Illinois Department of Human
Services ("IDHS") employed defendants at the Facility Bierman as
a Security Therapy Aide I ("STA I"), Powell as a Security Therapy Aide II
("STA II"), and Budz as the Director.
C. The Sexually Violent Persons Ad
Illinois law provides a procedure by which the State may petition for
the commitment of an individual who has been convicted of a sexually
violent offense and is anticipated to be released from imprisonment or
anticipated to enter into mandatory supervised release, on the grounds
that he is a "sexually violent person" ("SVP"). Sec Sexually
Violent Persons Act, 725 ILCS 207/1, et seq. ("the Act").
Thereafter, the individual is subject to commitment proceedings, which
are civil in nature. See 725 ILCS 207/20.
The Act accords certain procedural rights to individuals who are the
subject of petitions under the Act, which include the right to be present
and to be represented by counsel, the right to remain silent, the right
to present and cross-examine witnesses, and the right to receive a jury
trial. See 725 ILCS 207/25. If the jury or the court determines
that the individual is a "`sexually violent person,'" the Act requires
the court to enter a judgment on that finding and commit him.
Sec 725 ILCS 207/35; see also 725 ILCS 207/40.*fn2
Specifically, the person must he committed to IDHS's custody for
control, care, and
treatment until such time as he is no longer an SVP. Sec
725 ILCS 207/40(a). The commitment order must specify either
institutional care in a secure facility or conditional release.
See 725 1LCS 207/40(b).*fn3 The court may, in its discretion,
continue the hearing after entering a judgment that the person is an SVP
for the purpose of obtaining more information to make that determination.
See 725 ILCS 207/40(b)(1).
Individuals who are committed as SVPs are periodically re-examined
pursuant to the Act. 725 1LCS 207/55. Individuals committed to the
custody of the TDHS who are being held in a secured facility as SVPs may
petition for conditional release, 725 ILCS 207/60. Moreover, individuals
committed as SVPs may also petition for discharge from the custody of
1DHS on the grounds that they are no longer SVPs. 725 ILCS 207/65.
D. Plaintiff's Commitment Pursuant to the Act
After plaintiff had served part or all of his sentence within 1DOC for
his conviction on aggravated criminal sexual assault, the State
petitioned to have him committed as an SVP (In Re Commitment of Karl
Sidney Davis, Case No. 98 MR 404). On April 9, 2001. while in court
in Madison County. Illinois, for his commitment hearing, plaintiff waived
his right to a trial and stipulated to the allegations contained in the
State's SVP petition. Accordingly, he was committed to IDHS's custody as
a. sexually violent person. Plaintiff was represented by counsel, Steven
D, Griffin, at his commitment hearing.
A dispositional hearing was held on July 17, 2001. At that hearing, Dr.
Paul Heaton testified for the Slate and rendered his opinion that
plaintiff should be placed in a secure setting. Following that date,
plaintiff had several additional court dates concerning his commitment.
Griffin, plaintiff's counsel in connection with his commitment
proceedings, was present on any occasions on which plaintiff, himself,
was not. Plaintiff alleged in his complaint that these proceedings are
E. Plaintiff's Other Litigation
In 1999, plaintiff filed a civil lawsuit (Davis v. Budz, Case
No. 99 C 3009), in which he is also represented by counsel, Everett
Cygal. That case has been consolidated with another case and is still
pending in the United States District Court for the Northern District of
Plaintiff testified at his deposition that whenever he receives
documents, he sends them to Cygal, who makes copies for himself and then
sends the documents to plaintiff.*fn4
F. Background Concerning the Facility
The Facility was previously housed as a separate unit at the Sheridan
Correctional Center ("`Sheridan"). The State moved the Facility to its
current location in Joliet in December 2000.
During the relevant time period. Security Therapy Aides ("STAs") bore
responsibility for the care and security of the residents, stuff, and
physical facility. Defendant Bierman, an STA I, was a "back rover,"
responsible for tasks performed in the back area of the Facility
(including preparation of writs and duplicating). Defendant Powell, us an
STA II, had supervisory responsibility over the STA Is, including
When residents wanted to obtain photocopies of documents in their
possession, they were required to follow a certain procedure. The
Facility assigned certain residents responsibility for securing
photocopies for other residents ("resident copiers"). To obtain copies,
residents were required to fill out a request form and provide the form
and the documents to be copied to the
resident copier. They were also required to pay for the copies
either with money or with "points" earned at the Facility.
Generally, STA Is bore responsibility for overseeing the resident
copiers. Prior to any copies being made, the STA IB scanned the material
to be copied ("or contraband (including pornography). Subsequently, the
resident copier made the copies and provided the original documents and
copies to the requesting resident. Photocopying, typically took place on
the third shift.
G. The Events of July 12, 2001
Plaintiff believes that he was deprived of certain documents after he
submitted them on July 12, 2001 for duplicating at the Facility,
On July 12, 2001, both defendant Bierman and defendant Powell worked on
the third shift, which lasted 10:45 p.m. to 7:15 a.m. On that dale,
defendant Bierman was assigned responsibility for monitoring the resident
who made photocopies for other residents (the "resident copier").
Plaintiff gave 184 documents to Harry Cain, the resident copier on that
date, to be photocopied on behalf of resident Michael Lewis, Cain
possessed a form indicating that copies were to be made for Lewis.
Plaintiff did not submit a photocopy request form in his own name.
However, Cain told defendant Bierman that plaintiff gave him materials
to be duplicated for Lewis. In fact, plaintiff did not fill out a request
form because he was indigent and did not have the money to pay for the
copies, Lewis offered to obtain the copies for plaintiff because he had
the money and the points necessary to do so.
Defendant Bierman scanned the documents and noticed something unusual
multiple documents. He showed his findings to defendant Powell. In
Cain's presence, defendant Powell instructed defendant Bierman to
confiscate the documents so that the administration could determine
whether plaintiff should possess them.
The parties dispute the precise number of documents subsequently
confiscated by defendant Bierman (rather than being returned to plaintiff
along with the remainder of the documents he submitted). Defendants
contend that defendant Bierman confiscated only two documents: (1) an
IDHS sign-in sheet dated Saturday, May 19, 2001, which contained the
names of doctors and therapists who worked at the facility that day; and
(2) a room roster of the residents at Sheridan. Plaintiff agrees that
defendant Bierman confiscated those two documents. Further, it is
undisputed that defendants Bierman and Powell do not recall confiscating
any other documents. Consistent with their testimony, at Plaintiff's
request, Cain executed an affidavit stating that defendant Bierman
confiscated two documents.
Cygal, Plaintiff's attorney in his ongoing 1999 federal civil case, had
obtained those two documents through the discovery process and forwarded
copies thereof to plaintiff. Defendants considered the documents to be
contraband. The documents belonged to the therapists, and residents were
not permitted to enter into the area in which the therapists' documents
were located. Defendants Bierman and Powell were also concerned with how
plaintiff had obtained the sign-in sheet and the room roster.*fn5 At
defendant Powell's instruction, defendant Bierman wrote an incident
report regarding the confiscation of these two documents and attached the
documents to the report. The sign-in sheet and roster sheet were returned
to plaintiff on August
In addition to the above two documents, plaintiff believes that
defendant Bierman confiscated two more (claiming that they were removed
outside of Cain's presence). Specifically, he has alleged that defendant
Bierman also confiscated a two-sided document containing two letters
addressed to him at the facility from Ralph Underwater, Ph. D., dated
July 10, 2000 and July 23, 2000, respectively. Examination of the
parties' statements of facts and admissions (both explicit and by
operation of the Local Rules) dictates that the court must assume for
purposes of defendants' motion that the July 10th and 23rd letters were
also included in the documents submitted by plaintiff for duplicating and
that they were not returned to him. See infra, n. 8.
The first letter from Dr. Underwager to plaintiff slated that Dr.
Heaton had perjured himself at a recent trial by falsely claiming that he
was certified in the use of the Hare Psychopathy Check List ("Hare
PCL"). The second letter from Dr. Underwater to plaintiff stated that
stale psychologist Dr. Jacqueline Buck was not certified in the use of
the Hare PCL and that numerous psychologists in Illinois were claiming
that they could perform sexual predator commitment evaluations, but not
all psychologists are qualified to do so.
Cygal, Plaintiff's federal civil attorney, did not provide the
documents to plaintiff. Rather, they were addressed directly to plaintiff
at the Facility. As was his custom, upon receiving the letters, plaintiff
forwarded them to Cygal so that he could make copies, and Cygal
subsequently returned the documents to plaintiff. Thus, Plaintiff's
deposition testimony concerning this matter establishes that Cygal
possessed his own copies of these two documents. Indeed, the two letters
were attached as exhibits F and G. respectively, to Plaintiff's August
2001 complaint in this action, and plaintiff testified that Cygal
provided those copies to him.*fn6 At his deposition, plaintiff testified
that the particular copies of those letters that he had submitted for
duplicating had not yet been returned to him by the Facility.
Plaintiff believes that he needed the July 10th letter when Dr. Heaton
testified in court on July 17, 2001 al Plaintiff's commitment hearing. He
did not have either of the July 2000 letters from Dr. Underwager with
which to confront Dr. Heaton on the stand on that day, Defendants Bierman
and Powell did not know that plaintiff was scheduled to appear in court
for a hearing on July 17, 2001.
H. Plaintiff's Telephone Calls
Plaintiff believes that defendant Budz blocked his telephone calls for
one year, Pursuant to the Illinois Administrative Code, residents at. the
Facility were permitted a reasonable amount of communication with others
via mail, telephone calls, and in-person visits. Under the facility's own
policy, residents could make telephone calls during the daytime whenever
Employees at the Facility did not have the ability to block, prevent,
record, or monitor collect calls placed by residents at anytime from June
1, 1998 through March .31, 2003. The facility permitted plaintiff to
place collect calls to his attorneys between the hours of 7 a.m. and
10:45 p.m. daily. Plaintiff was not permitted to make free telephone
calls to his attorneys on the Facility's administrative lines because his
attorney was willing to accept collect calls. That restriction was
consistent with IDHS's Standard Operating Procedure ("SOP"). Under
circumstances where attorneys were unable to receive collect calls,
defendant. Budz made
exceptions to the SOP and permitted residents to communicate with
them via the Facility's administrative lines,
From June 1, 1998 through March 31, 2003, the Facility (including when
it existed as a separate unit at Sheridan) utilized a collect call system
under which residents wishing to place a collect call dialed the number
directly. The telephone provider at Sheridan was Consolidated Public
Services. Upon the transfer of the Facility to Joliet, Ameritech became
the provider of local telephone equipment and service, as well as the
provider of collect call services. MCI became the lost-distance service
provider from March 2000 until March 3 1, 2003. On April 1, 2003,
Consolidated Public Services became the provider of both local and
long-distance services at the Facility.
Plaintiff has claimed that he began experiencing telephone problems
after the switch from Ameritech to MCI. Specifically, on one occasion, he
attempted to place a telephone call to Cygal and received a recorded
message stating, "At the request of customer, no collect calls can be
made to this number." Plaintiff was subsequently connected to a live
operator, whom he told that he was attempting to contact his attorney.
The operator stated that she could not process the call and that
plaintiff would need to speak to his warden or director. Subsequently,
the same day, he successfully telephoned another attorney at Cygal's
firm, who connected him to Cygal. At that time, plaintiff had no pending
court dates in federal court. In October, 2000, plaintiff filed a motion
in court in Madison County (where his commitment proceedings are ongoing)
requesting a court order concerning the alleged blocking of his telephone
At his deposition, plaintiff claimed that he was again unable to
telephone Cygal under the current system, Following the Facility's switch
to a new telephone vendor on April 1, 2003, the
Facility began to utilize a new collect call system requiring
residents to use a personal identification number ("PIN"). Residents
were required to submit a list of up to 30 individuals whom they wished
to call, and they could amend their phone lists at any time,
Plaintiff completed the necessary paperwork, on or about March 31,
2003, and as of May 1, 2003, he had received a PIN. Plaintiff was able to
communicate with Cygal through the mail during the time he claims he was
unable to telephone him (and there is no indication in the record that he
was ever unable to do so).
A. Count I Fails as a Matter of Law.
Count I is premised on the July 2001 confiscation of the sign-in sheet,
the roster sheet, and the two July 2000 letters written by Dr. Underwater
to plaintiff. Plaintiff claims that defendant Bierman's confiscation of
those documents deprived him of his constitutional right of access to the
In Bounds v. Smith, 430 U.S. 817, 97 S, Ct. 1491 (1977), the
Supreme Court established that prison inmates possess a constitutional
right of access to the courts. Subsequent Supreme Court jurisprudence
clarifying the contours of that right has made clear that states must not
impede prisoners" efforts to pursue legal claims, but have no obligation
to enable prisoners "to discover grievances [or] to litigate
effectively once in court." Lewis v. Casey, 518 U.S. 343,
350, 352-53, 116 S.Ct. 2174, 2179, 2181 (1996).
"To prove a. violation of [the constitutional right of access to the
courts], a plaintiff must demonstrate that state action hindered his or
her efforts to pursue a non-frivolous legal claim and that
consequently the plaintiff suffered some actual concrete injury" May
226 F.3d 876, 883 (7th Cir. 2000) (citing Lewis, 518 U.S. at
350-54) (emphasis added). The injury, or "prejudice," clement (which
stems from the constitutional principle of standing) has long been
required by the Seventh Circuit in its formulation of the claim. See
Ortloff v. U.S., 335 F.3d 652, 656 (7th Cir. 2003) ("to state a
right to access-to-courts claim . . . a prisoner must make specific
allegations as to the prejudice suffered because of the defendants'
alleged conduct"); see also Musgrove v. Detella, No. 01-3758,
2003 U.S. App. LEXIS 17700, at *8 (7th Cir. Aug. 21. 2003) ("a prisoner
claiming that he was denied access to the courts must prove that he
suffered an actual injury by showing that unjustified nets or conditions
hindered his ability to pursue a nonfrivolous legal claim") (citations
omitted); Jenkins v. Lane, 977 F.2d 266, 268 (7th Cir. 1992)
(per curium): Martin v. Davies, 917 F.2d 336, 340 (7th Cir.
1990).*fn7 Moreover to prove this alleged constitutional violation, a
plaintiff must also demonstrate that the alleged deprivation of his
access to the courts was intentional, see Kincaid v. Vail,
969 F.2d 594, 602 (7th Cir. 1992). and that the state's conduct was
unreasonable, see Ortloff, 335 F.3d at 656.
1. Plaintiff's Claim
As an initial matter, plaintiff has barely articulated his
access-to-courts claim, and its contours are unclear at this late stage
in the litigation. In his memorandum in opposition to defendants' motion
for summary judgment, plaintiff asserted that "he was unable to provide
the [confiscated] documents to his attorney for possible use in the
impeachment of a State witness [Dr. Heaton] testifying against him" at
the July 17, 2001 hearing. He also argued that the
confiscation of the documents "prevent[ed] their use in court by
the plaintiff or his attorney, amount[ing] to actions on the part of the
defendants that impeded the plaintiffs efforts to pursue a legal claim or
The only other delineation of plaintiff's claim came via his admission
that he had already been committed us an SVP at the time of the July 17,
2001 hearing. On April 9, 2001, plaintiff waived his right to a trial and
stipulated to the state's SVP petition; thus, he was committed to IDHS's
custody as an SVP that day. Notwithstanding his admission, plaintiff
contended in his brief:
Plaintiff's purpose in providing his attorney
with the Underwager letters was to provide
evidence of perjured statements made by Dr.
Heaton, the State psychologist and expert whose
opinion in used to determine whether the
plaintiff is sexually violent and whether he
should remain committed as a sexually violent
person. It cannot be said that plaintiff was
pursuing a frivolous claim under the
circumstances. Defendants [sic] actions in
confiscation [sic] of his legal documents
interfered with his ability to prepare his
defense and perhaps secure his release.
(Emphasis added). Although this argument is not entirely coherent, it
suggests that plaintiff's claim is this: if Dr. Heaton had been impeached
with the help of the confiscated documents, the court might have
concluded that plaintiff was not an SVP, and plaintiff, therefore, might
have been released from IDHS custody.
As an initial matter, plaintiff has abandoned any claim concerning the
sign-in sheet and the roster sheet by wholly failing to respond to
defendants" arguments concerning the same (other than to concede that
defendants may have acted "reasonably" in confiscating those documents
from him). Moreover, he has not sought to allege, let alone explain, how
the temporary deprivation of those documents, or of the letter relating
to Dr. Buck, hindered his attorney's ability to cross-examine Dr. Heaton,
to secure his discharge from IDHS custody, or to otherwise
alter his legal status. Thus, only the temporary deprivation of the
July 10, 2000 letter from Dr. Underwager to plaintiff concerning Dr.
Heaton is at issue.
It is well settled that the taking of legal documents necessary to
litigate pending claims may form the basis for a claim of denial o f the
right of access to the courts, See, e.g., Brownlee v. Conine,
957 F.2d 353, 354 (7th Cir. 1992). However, plaintiff's claim fails as a
matter of law on several independent grounds. At a minimum, he has failed
to create a genuine issue of triable fact concerning three required
elements of his claim: (1) whether he was pursuing an underlying claim or
defense; (2) whether confiscation of the letter caused him cognizable
injury or prejudice; and (3) whether defendants intentionally caused the
alleged deprivation of his access to the courts.*fn8
2. Plaintiff's Claim Fails us a Matter of Law
a. Underlying claim or defense
Setting aside the lack of clarity concerning the contours of
plaintiff's claim, he has not pointed to sufficient record evidence to
show that he was pursuing a claim or defense in July 2001, There is no
evidence indicating that plaintiff was actually pursuing any claim or
defense at. that stage merely three months after he had waived
his right to trial, stipulated to the State's SVP petition, and consented
to his own commitment as an SVP. Although plaintiff's argument
suggests that he was then pursuing a claim that he was not a
"sexually violent person," he has not presented any evidence to
prove that he was asserting such a claim. See generally
Fed.R.Civ.P. 56 & L.R. 56.1 (selling forth plaintiff's burden at summary
judgment and corresponding evidentiary requirements). Plaintiff's claim,
therefore, cannot even get off the ground, (Cf. Christopher v.
Harbury, 536 U.S. 403, 122 S.Ct. 2179) (2002) (upholding dismissal
of access-to-courts claim, in part because plaintiff failed to identify
the underlying claim allegedly precluded by the government's action and
its lost remedy; underlying claim is required element of this cause of
Even if plaintiff had provided sufficient identification and evidence
of his underlying claim (and assuming that he was seeking either
discharge from IDITS custody on the grounds that he was no longer an SVP
or conditional release from the Facility), he has failed to present
sufficient evidence to demonstrate injury or prejudice. "[G]eneral
allegations of prejudice are insufficient" even to withstand a motion to
dismiss within the Seventh Circuit. Ortloff, 335 F.3d at 655-56
(upholding dismissal of 1983 action where plaintiff alleged that
"confiscation, seizure, and destruction of his legal materials severely
prejudiced and adversely affected his ability to prosecute at least three
pending lawsuits"). The types of harm that can satisfy the prejudice
requirement include, "`missed court deadlines, fail[ure] to make timely
filings," or dismissal of legitimate claims, caused by the defendants)'
actions. Id., at 656. See also Martin. 917 F.2d at 340
(claim fails where plaintiff "offers no specific facts to support these
allegations (of prejudice no court dates missed; no inability to
make timely filings; no denial of legal assistance to which he was
entitled; and no loss of a case which could have been won") (citations
Plaintiff's inability to show prejudice stems from multiple
deficiencies in his presentation to the court. First, he has set forth no
real argument or evidence concerning how the confiscation of"
the letter allegedly affected his attorney's ability to cross-examine or
impeach Dr. Heaton at the July 17, 2001 hearing. In the letter, Dr.
Underwager stated that Dr. Heaton had recently perjured himself by
falsely testifying that he was certified in HARE PCL. Under the Federal
Rules of Evidence (and corresponding Illinois law), the letter is a
classic example of inadmissible hearsay. Even setting that deficiency
aside, plaintiff did not provide any evidence that the HARK PCL tool was
used by Dr. Heaton in formulating his opinion concerning plaintiff.
Moreover, plaintiff cannot show that the confiscation of the letter
caused him to fail in his supposed claim for discharge or conditional
release. First, he has made no showing that asking Dr. Heaton whether he
previously falsely testified that he was certified in HARE PCL or, even
successful impeachment of Dr. Heaton on that point, would have changed
the outcome of the July 17, 2001 hearing. (Indeed, the record does not
reveal what the outcome, if any, of that specific hearing was,) There is
no evidence concerning whether and to what extent the state court relied
upon Dr. Heaton's opinion on that date, especially in light of
plaintiff's stipulation several months earlier to the State's SVP
petition. In sum, plaintiff's bare speculation, as set forth in his
brief, that "possible use" of the letter to impeach Dr. Heaton could have
"perhaps secure[d] his release" is insufficient to create a triable fact
issue and defeat defendants' motion, See, e.g., Borcky v. Maytag
Corp., 248 F.3d 691, 695 (7th Cir. 2001) (speculation is
insufficient to defeat summary judgment).
Plaintiff's effort to show prejudice tails for another independent
reason, as he admits that
his loss of the letter was "temporary," and the record facts
demonstrate that it was, in fact, illusory. Plaintiff has been
represented by counsel in both his ongoing federal civil case and his
ongoing commitment hearings. As was plaintiff's practice when he received
such materials, he forwarded the letter to Cygal after he received it so
that Cygal could make a copy for himself, ant) Cygal subsequently sent
the document to plaintiff.
When plaintiff filed his complaint in the instant action in August 2001
(little more than one month after the confiscation of the letter), Cygal
provided a copy of the letter to plaintiff so that plaintiff could attach
it to the complaint. Plaintiff has provided no explanation for why, if he
and/or his Griffin, commitment counsel, needed or wanted a copy of the
letter for the July 17, 2001 hearing, they did not simply retrieve it
from Cygal at that time (as plaintiff did several weeks letter). There is
no evidence that he attempted, but failed, to retrieve the letter from
his attorney for the July 17th hearing. The record thus indicates that
Cygal had possession of the letter all along,
The alleged loss of the document did not prejudice plaintiff in his
ability to present his claim because he could have retrieved the document
from his civil attorney. Plaintiff's "loss" was not meaningful on a
practical level or for constitutional purposes, Cf., Musgrove,
2003 U.S. App. LEXIS 17700, at *6-8 (upholding grant of judgment as a
matter of law on prisoner's access-to-courts claim on grounds that
plaintiff suffered no actual injury; plaintiff could have retrieved a
document containing the relevant facts, as compared to the facts
contained in the confiscated documents, from either the court or his
attorney and, thus, could have filed his lawsuit without the missing
documents); Carr v. McGinnis, No. 91-3602, 1993 U.S. App. LEXIS
30897 at * 4-5 (7th Cir. Oct. 19, 1993) (upholding grant of summary
judgment on prisoner's
access-to-courts claim on grounds that plaintiff suffered no
detriment to pending litigation; confiscation of plaintiff's legal file
did not prevent plaintiff from responding to motion for summary judgment
in pending litigation, as plaintiff was able to present the material
facts of his case on the basis of his personal recollections and thus
could have submitted an affidavit based on personal knowledge, in lieu of
submitting the confiscated documents).
Even setting aside all of these independent deficiencies in plaintiff's
claim, he still has I ailed to show actual injury through detriment to
pending litigation. Plaintiff has been to state court for proceedings
relating to his commitment several times since the July 17, 2001 hearing.
He has been represented by counsel in connection with his commitment
hearings, which he alleges are ongoing. Furthermore, under the clear
terms of the Act, plaintiff can readily return to state court to
challenge his commitment or his confinement. He has not provided the
court with any evidence that be has sought to raise the issue concerning
Dr. Heaton's potential perjury or sought an opportunity to impeach Dr.
Heaton on this point at any such proceeding. These facts further
establishes his inability to show actual injury caused by defendants'
conduct. Cf., Armstrong v, Meyer, No. 92-2157, 199.3 U.S. Dist.
LEXIS 20425, at * 11-13 (C.D. Ill. May 6, 1993) (granting motion for
summary judgment on prisoner's access to the courts claims on grounds
that: (1) confiscated documents pertained to state court case that was
still pending and plaintiff had filed claim for relief in that
court; and (2) other confiscated documents pertained to claims in lawsuit
plaintiff intended to. but did not, file, which claims be later pursued
in subsequent litigation; plaintiff therefore "failed to show any adverse
rulings or other detriment" caused by the defendants' challenged
Most fundamentally, plaintiff cannot show prejudice because he cannot
establish that his underlying claim that he was no longer "sexually
violent" or that he was entitled to release from the Facility
was nonfrivolous. He has presented no evidence from which a jury could
conclude that such a claim was nonfrivolous. In light of the above facts
chief among them, that he is still committed to IDHS's custody
as an SVP and still residing in the Facility it is difficult
to imagine that he could have done so. In any event, because plaintiff
has presented no evidence that his underlying claim was nonfrivolous,
he cannot show prejudice, and his claim fails as a matter of law.
See, e.g., Musgrove, 2003 U.S. App. LEXIS 17700, at *11
(upholding grant of judgment as a matter of law on grounds that, even
if deprivation of documents had hindered plaintiff's ability to file
lawsuit, plaintiff offered no evidence that the lawsuit would not have
been frivolous, and "hindrance of a frivolous claim cannot result in
c. Defendants' intent
Plaintiff's claim also fails because he did not point to sufficient
evidence to establish that defendants acted intentionally to deprive him
of his right of access to the courts. Plaintiff argued in his brief,
"[d]efendants had no reasonable basis for confiscation of his legal
documents and therefore their actions in confiscation [sic] of
plaintiff's legal documents amounted to an intentional action
interfering with plaintiff's access to court and was a
constitutional violation." As a matter of simple logic, the sheer
"reasonableness" of defendants' action is not a patent indicator of
their intent, let alone dispositive of the issue. Cf., Clayton-El v.
Clark, Nos. 91-2454, 92-415.1, 1992 U.S. Dist. LEXIS 22220, at *7
(CD. Ill. Dec. 3, 1992) (granting summary judgment to defendants on
plaintiff's access-to-courts claim, based in part on fact that defendants
confiscated documents that they believed were not related to
plaintiffs pending habeas case; although the documents actually may have
been relevant to plaintiff's habeas case, the incident could be
attributed to "mere overzeal, mistake, or lack of due care," and there
was no indication a ("an intentional denial of access to the courts").
Here, it is undisputed that defendants Bierman and Powell do not even
recall confiscating the letters from Dr. Underwager. Moreover, it is
undisputed that they did not know that plaintiff had an upcoming
commitment hearing scheduled for July 17, 2001. On the record evidence,
plaintiff cannot prove that their action in confiscating the letters
constituted an intentional deprivation of his right of access to the
courts. His claim fails for this additional and independent reason.
See Kincaid, 969 F.2d at 602.
b. Count II Fails as a Matter of Law.
Count II of the complaint is premised upon defendant Budz's alleged
blocking of plaintiff's telephone calls. Plaintiff claims that the
blocking of his calls to his attorneys deprived him of his constitutional
right of access to the courts.
In their opening memorandum, defendants argued that, on the undisputed
facts, Count IT of the complaint fails as a matter of law. In responding
to defendants' motion for summary judgment, plaintiff failed to contend
otherwise and/or to assert any legal argument in support of his claim. He
makes only one reference to the claim, itself, in his entire brief, and
it is merely a passing reference to the fact that he had alleged the
blocking of telephone calls.
Plaintiff thus abandoned the claim set forth in Count II of the
complaint, and summary judgment in defendants' favor is proper as to that
claim, See. e.g., Laborers' Int `I Union of N. Am. v.
Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (stating that arguments
not presented to the
district court in response to summary judgment motions are waived);
Pugh v. City of Attica, Indiana, 259 F.3d 619, 624 n.3 (7th Cir.
2001) (same); Donelson v. City of Chicago, 272 F. Supp.2d 717,
726 (N.D.Ill. 2003) (treating plaintiff's harassment claim as abandoned
where she merely contended that she was harassed, hut provided no legal
arguments in support of the claim and "`ma[de] no serious efforts to
respond to the [defendant's] argument against it' in her summary judgment
Indeed, plaintiff has failed even to delineate his claim, leaving the
court with only the vague assertions in his complaint to the effect that
defendant Budz deprived him of his ability to make outgoing telephone
calls to his attorneys for some period of time of unspecified duration
ending approximately three months before lie filed his complaint. Summary
judgment is proper for that additional, albeit related, reason. See
Palmer v. Merion County, 327 F.3d 588, 597-98 (7th Cir. 2003)
(deeming appellant's negligence claim abandoned, in part because he
tailed to delineate the claim in his district court brief in opposition
to a motion for summary judgment) (citations omitted).
Even if the court were to consider the merits of plaintiff's abandoned
claim, the record docs not contain sufficient evidence to support the
claim, and it would fail as a matter of law.*fn10
For the foregoing reasons, defendants' motion for summary judgment is
granted, and plaintiffs complaint is dismissed in its entirely.