Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DAVIS v. BIERMAN

January 20, 2004.

EARL SIDNEY DAVIS, Plaintiff,
v.
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 qualified immunity. Page 2

  For the reasons set forth below, defendants' motion for summary judgment in their favor is granted, and the complaint is dismissed in its entirety.

 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 Page 3 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 Page 4 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 citations omitted).

  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 supported as Page 5 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 stage).*fn1

  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 Page 6 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 Facility,

  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 Page 7 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.