The opinion of the court was delivered by: Gilbert, District Judge
This matter comes before the Court on Magistrate Judge Wilkerson's Report and Recommendation ("R&R") (Doc. 55), in which he recommends that this Court deny in part and grant in part defendants' motion for summary judgment. (Docs. 31, 47). Defendants have objected to various parts of the R&R. (Doc. 56). For the following reasons, the Court will accept in part and reject in part Judge Wilkerson's R&R.
The parties have not taken issue with Judge Wilkerson's factual findings, so the Court need not make independent findings or recite the facts with exacting precision. However, a basic understanding of the facts is necessary to understand the substance of defendants' objection. Since 2000, Jamison Semla ("Semla") has been in the custody of the Illinois Department of Corrections ("IDOC") and has served time at several of its institutions. On July 9, 2002, Jennings (an IDOC Lieutenant at the Lawrence Correctional Center) conducted a shakedown of Semla's cell. Semla was not present during the shakedown. In the course of the shakedown, Jennings confiscated a number of Semla's books, including The Satanic Bible, Satanic Rituals, and Satan Speaks. As a member of the Satanic Faith*fn1 , these books are important to his observance of Satanic ritual and practice; apparently, they are the rough equivalent of the Bible for a Christian, or the Koran for a Muslim. Jennings made no effort to determine whether the books were religious in nature (some books confiscated were not religious, including works in the true crime genre such as Helter Skelter), did not discuss the books with Semla, contact the Chaplain or determine Semla's religion through the Offender Tracking System. Before his transfer to Lawrence, Semla served time at the Stateville Correctional Center. There, the institutional publication committee reviewed the books at issue here and found them acceptable. When Semla transferred to Lawrence, officials there inventoried his books, deemed them acceptable and allowed Semla to maintain possession of them.
Semla filed a grievance on the day Jennings confiscated his books. In the grievance, Semla relayed his status as a Satanist, indicated that he could not study or practice his religion without his books and requested their immediate return. This grievance was denied at all levels. Prison personnel sent his books to the Publication Review Committee, which found them inappropriate and declined to return them. Semla filed the instant action on January 8, 2003. In his amended complaint (Docs. 1, 40), he requests the return of his books or permission to purchase new ones. He also seeks declaratory and injunctive relief. Specifically, Semla wants the Court to permanently enjoin defendants' interference with his religious practices and to declare that defendants' activities violated his First Amendment rights and those guaranteed by the Religious Land Use and Institutionalized Person Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1; he does not seek monetary damages. Importantly, Semla sued Snyder, Pierce and Jennings in their official and individual capacities. (Doc. 40, ¶¶ 6, 7, 8).
This Court previously adopted, in part, (Doc. 50) Judge Wilkerson's R&R (Doc. 43) on Pierce and Snyder's motion to dismiss (Doc. 21). In doing so, the Court dismissed Semla's claims against Pierce and Snyder in their official capacities and allowed his claims against them in their personal capacities to proceed. The Court substituted the current warden at Lawrence, Jason Garnett ("Garnett") and the current director of the IDOC, Roger Walker, Jr. ("Walker"), as defendants in their official capacities. Thus, at this point, Semla has claims against Pierce and Snyder in their personal capacities, against Jennings in his personal and official capacity, and against Walker and Garnett in their official capacities.
The Court must review de novo the portions of the R&R to which the parties object. Fed. R. Civ. P. 72(b). After reviewing the R&R, the Court may accept, reject or modify, in whole or in part, the judge's findings or recommendations. Id. In its discretion, the Court may conduct a new hearing, consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
In their motion, defendants claim, among other things, that Semla failed to exhaust his administrative remedies and failed to show that defendants were personally responsible for the deprivation of which he complains. In his R&R, Judge Wilkerson accepted defendants' argument with respect to defendant Snyder, and recommended that this Court grant summary judgment in his favor. Wilkerson found sufficient evidence of Jennings and Pierce's personal involvement to recommend the denial of summary judgment as to them. Though Pierce and Jennings claim the R&R is "flawed throughout," fundamentally, they only take issue with Wilkerson's determination on the issue of personal involvement. (Doc. 56 at 2). Specifically, they claim the R&R is erroneous insofar as it finds that "Jennings and Pierce were personally required to determine whether the Plaintiff could have the books in question before confiscating them, rather than rely upon the publication review committee to make that determination." (Id.). Essentially, defendants claim Semla should have sued the individual members of the publication committee because if anyone violated his rights, they did it at that end. This is the cornerstone of their exhaustion claim as well, that Semla should have grieved the Publication Review Committee's decision not to return his books. This formulation of the precise issue here is defendants' own; clearly, Semla has attempted to seek relief based on Jennings' original confiscation and Pierce and Snyder's subsequent denials of his grievance.
The Court has an independent duty in all cases to determine whether the parties before it have standing and whether their claims are moot. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (standing); Family & Children's Ctr., Inc., v. Sch. City of Mishawaka, 13 F.3d 1052, 1058-59 (7th Cir. 1994) (standing); North Carolina v. Rice, 404 U.S. 244, 246 (1971) (mootness). This duty does not change when some claims are justiciable and others not. See, e.g., Robinson v. City of Chicago, 868 F2d 959, 967 (7th Cir. 1989). Because the Court finds that Semla's claims against Snyder and Pierce in their personal capacity are not justiciable, the Court rejects so much of Judge Wilkerson's R&R that suggests otherwise.
The key fact to the justiciability analysis is that Semla has included no claim for money damages against any of the defendants in this case. Semla has requested an award of attorney's fees*fn2 , but such a request is insufficient, by itself, to make his claims justiciable. See Diamond v. Charles, 476 U.S. 54, 70-71 (1986) ("[T]he mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III."); Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480 (1990) (finding that the interest in attorney's fees under federal civil rights statutes is "insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim."); Liu v. INS, 274 F.3d 533, 535 (D.C. Cir. 2001).
As previously stated, Semla prays for "preliminary and injunctive relief requiring [defendants] to accommodate [his] Religious Tenet' and practices by returning and the allowance of receiving the Religious Materials unjustly confiscated by [defendants]." (Doc. 40 at 4). Thus, another key fact in the justiciability inquiry is that Pierce and Snyder have changed their respective positions; Pierce is no longer the warden at Lawrence and Snyder is no longer the director of the IDOC. Thus, they are no longer in positions which would allow them to comply with the relief Semla requests. For the same reason, his request for a declaration from this Court that defendants "have violated Plaintiff's rights set forth in the body of [his] complaint" would have little or no cognizable effect. (Id. at 4). At least as this prayer relates to Snyder and Pierce, the granting of Semla's request for declaratory relief would benefit him in no tangible way.
This Court does not have the power, under Article III, "to decide questions that cannot affect the rights of litigants in the case before [it]." Lewis, 494 U.S. at 477 (quoting Rice, 404 U.S. at 246). That the situation here might have been different when Semla filed suit is not sufficient; "The parties must continue to have a personal stake in the outcome of the lawsuit." Id. at 478 (internal quotations and citations omitted). Accordingly, where a plaintiff does not pray for damages when he sues a government official in his personal capacity, and that official changes positions during the action's pendency, a claim for declaratory and injunctive relief against such official is often moot, see Blackburn v. Goodwin, 608 F.2d 919, 925 (2d Cir. 1979); Tara Enter., Inc. v. Humble, 622 F.2d 400, 401 (8th Cir. 1980); Seriq v. S. Cook County Serv. Corp., 581 F.Supp 575, 581 (C.D. Ill. 1984); see also Commodity Futures Comm'n v. Bd. of Trade, 701 F.2d 653 (7th Cir. 1983), because the individual no longer has "the official capacity necessary to enable him to comply with the ...