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.
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.
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 ...