The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the Court are the parties' motions for summary judgment (d/e's 76, 77). For the reasons below, the Court grants Defendants' motion in part. The motions are otherwise denied.
Summary Judgment Standard
A party moving for summary judgment must show, from the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . ." that there is no genuine issue of material fact and that the "moving party is entitled to judgment as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Fed. R. Civ. P.56(c). This burden can be satisfied by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Summary judgment is not a discretionary remedy. If the plaintiff lacks enough evidence, summary judgment must be granted." Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994).
These facts are adopted essentially verbatim from Defendants' proposed facts, to the extent material and not disputed by Plaintiff.
1. In September 2002, Plaintiff filed a Petition for Declaratory Relief and Order for Replevin in the Circuit Court of the Fourth Judicial Circuit in Montgomery County, Illinois .
2. Plaintiff's replevin action in the Illinois Circuit Court involved the same books that are at issue in this case. Plaintiff asserts that other iron-on transfer books have also been denied him since the beginning of this lawsuit.
3. Plaintiff's replevin petition alleged the defendant "took and detained, and still wrongfully detains against plaintiff, 5 books valued at $17.40. Said books were reviewed and approved by the IDOC Central Publications Review Committee on May 23, 2002 [citation to attachments omitted]. The withholding of said publication is a violation of speech and property rights under the First and Fourteenth Amendments of the United States Constitution . . . ."
4. Defendants filed summary judgment in the replevin action, which was denied.
5. The State Court ultimately found in favor of the defendants, for reasons "stated on the record." However, this court has not been supplied with any transcripts from the replevin hearing, nor any written order. Thus, the grounds for dismissal of the replevin action are not in this record.
6. Plaintiff initially appealed the replevin decision, but then moved to withdraw the appeal, in part because he intended to pursue his First Amendment claim in this Court.
7. The duty to approve or disapprove publications is delegated to the Central Publications Review Committee which is ...