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DUGAN v. BRILEY

January 11, 2005.

BRIAN DUGAN, Plaintiff,
v.
KENNETH BRILEY, et al., Defendants.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment in its entirety.

BACKGROUND

  Dugan is currently incarcerated at Pontiac Correctional Center, but was formerly incarcerated at Stateville Correctional Center ("Stateville"). Dugan claims that Defendants, various officials at Stateville, violated his constitutional rights by denying him access to the same programs that were available to the general prison population while Dugan was confined in protective custody ("PC") at Stateville. Dugan claims that he was denied access to the prison law library, was not allowed to have a job at the prison, was denied access to the same religious services, and the same recreational activities, and was denied access to other programs offered by Stateville. Dugan has brought this action alleging violations of 42 U.S.C. § 1983 ("Section 1983").

  LEGAL STANDARD

  Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify "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 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

  DISCUSSION

  I. Affidavits of Inmates

  Dugan attempts to support his position with his own affidavit and affidavits of several other inmates. Defendants have moved to strike the affidavits. We agree that in regards to some of the affidavits, they are not properly notarized and are not properly executed. Also, the affidavits include broad generalizations that are too vague to be of assistance to the trier of fact. The affidavits fail to point to specific complaints or dates and the trier of fact would therefore be required to speculate based upon the generalized comments included within the affidavits. Also, certain statements included in the affidavits would be misleading, unduly prejudicial, and inadmissible for other evidentiary reasons as well. Therefore, we grant Defendants' motion to strike the affidavits as improper.

  II. Denial of Access to the Courts Claim

  Dugan argues that he was denied access to the law library. A plaintiff must show that he suffered an injury from the denial of access to the court in order to maintain a Section 1983 claim for denial of access. Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir. 1998). For a denial of access to the courts claim "a prisoner must show that unjustified acts or conditions `hindered his efforts to pursue a legal claim.'" Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir. 1998) (quoting in part Lewis v. Casey, 518 U.S. 343, 351 (1996)). Dugan claims that his box of legal papers was in the library and that he was not able to go to the law library during November of 2001, causing his appeal in case 99 C 4382 to be dismissed. This claim is not borne out by the undisputed evidence. According to the public record docket in that case, which was dismissed by Judge Zagel on June 7, 2001, Dugan's appeal was dismissed for failure to pay the filing fee. On October 26, 2001, an order issued indicating that Dugan was required to pay the filing fee by November 7, 2001. Dugan failed to do so which resulted in the final dismissal of the appeal on November 28, 2001. He has failed to show that he was prevented from pursuing a meritorious claim, as his claim had already been dismissed. The evidence thus is undisputed that his appeal was dismissed due to his failure to pay his fling fee rather than his inability to present adequate legal arguments. Neither has Dugan pointed to evidence that shows that his efforts were hindered in regards to the pursuit of any other legal claims. Also, the prison had to institute a general lockdown for the entire prison population for legitimate security reasons which prevented inmates from using the prison library at times. Therefore, we grant Defendants' motion for summary judgment on the denial of access to the court claim.

  III. Denial of Access to Recreation

  Dugan claims that his recreational activities were restricted as a result of being placed in PC. As the Seventh Circuit recognized in Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996), the "[l]ack of exercise may rise to a constitutional violation in extreme and prolonged situations where movement is denied to the point that the inmate's health is threatened." Id. at 1432. In Thomas v. Ramos, 130 F. 3d 754 (7th Cir. 1997), the Seventh Circuit discussed the conditions of confinement related to the sufficiency of exercise in prison. Id. at 762-64. The court held that there is no Eighth Amendment violation where a prisoner had room in his cell to do push-ups, sit-ups, jogging in place and step-ups. Id.

  In the instant action, Dugan had much more than that. He had periodic yard access and gym access, even when in X house. Dugan complains that he could not go to the weight room, (P. Dep. pp. 73-74), and complains that PC inmates were not allowed to use the South Yard for exercise like the general population. However, Dugan was in a prison, not a health club. He had no right to dictate access to his preferred workout facilities. It is not genuinely disputed that the prison must accommodate more than 2,900 inmates and thus it clearly was not practicable to tie up the South Yard for a select few PC inmates or to tie up prison staff to escort the PC inmates to the opposite side of the prison. Dugan has not shown that he suffered any injury due to being unable to exercise in his preferred place and fashion. Also, the evidence is clear that the lockdowns ...


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