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Agrawal v. Briley

September 29, 2008

SHREE M. AGRAWAL, PLAINTIFF,
v.
KENNETH R. BRILEY, CHARLES PETERSON, ANTHONY DAVIS, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Shree Agrawal, a prisoner in the custody of the Illinois Department of Corrections ("IDOC"), has brought this pro se civil rights case under 42 U.S.C. § 1983 against Kenneth Briley, the Warden of Stateville Correctional Center; Charles Peterson, Stateville's prison chaplain; and correctional officer Anthony Davis. Agrawal alleges that Defendants violated his rights under the Religious Land Use and Institutionalized Persons act ("RLUIPA") and under the First, Eighth, and Fourteenth Amendments by denying him his desired religious diet, by confiscating his electric razor, and by prohibiting him from purchasing a "graphic calculator"*fn1 from the commissary at Stateville.

PROCEDURAL HISTORY

The case has been the subject of several lengthy rulings. On initial review, the court concluded that by alleging that his request for a religious diet had been denied, Agrawal stated a claim under the First Amendment. Agrawal v. Briley, No. 02 C 6807, 2003 WL 164225 (N.D. Ill. Jan. 22, 2003). Plaintiff's amended complaint added a claim under RLUIPA. The court denied Defendants' Rule 12(b)(6) motion to dismiss that claim, Agrawal v. Briley, No. 02 C 6807, 2003 WL 22839813 (N.D. Ill. Nov. 25, 2003), and later concluded that Plaintiff was entitled to summary judgment on his RLUIPA claim as against Defendants Peterson and Briley. Agrawal v. Briley, No. 02 C 6807, 2004 WL 1977581 (N.D. Ill. Aug. 25, 2004). The court then appointed counsel to represent Plaintiff and brief damages issues. In its most recent opinion, the court reviewed the then-available authority and concluded that RLUIPA authorizes recovery of monetary damages against state officials in their individual capacity, limited, however, in a case where plaintiff has suffered no physical injury, to nominal damages and punitive damages. As noted in that earlier ruling, the Prison Litigation Reform Act ("PLRA") bars recovery of compensatory damages for mental or emotional injury. Agrawal v. Briley, No. 02 C 6807, 2006 WL 3523750 (N.D. Ill. Dec. 6, 2006).

Soon after the entry of that ruling, Defendants Davis, Peterson, and Briley moved for partial summary judgment. The motion does not challenge Plaintiff's First Amendment claim. Defendants argue that they are entitled to judgment as a matter of law on all claims other than Plaintiff's First Amendment and RLUIPA claims against Defendants Briley and Peterson. Appointed counsel for Plaintiff was not able to respond to that motion for several months, due largely to the press of other responsibilities, and the court granted repeated extensions of the time for filing a response. Plaintiff's attorneys ultimately did prepare a response, but declined to file it on the August 10, 2007 due date because they learned that, days earlier, Plaintiff had filed a new lawsuit naming them, opposing counsel, and the judge in this case, as defendants. On its own motion, the court dismissed appointed counsel and directed Plaintiff to respond pro se to the motion for summary judgment.

Plaintiff did so, several months later, by way of his own cross-motion for summary judgment. He also moved for substitution of the judge and for the production of certain documents. Then in May 2008, Defendants moved for reconsideration of the court's earlier damages ruling. Defendants cited the Seventh Circuit's ruling in Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008), that where a prisoner challenging the denial of his desired religious diet has alleged only mental or emotional injury, he is entitled to recover nominal damages only.

The court addresses several of these motions below. Relevant facts appear in the court's earlier decisions and will be referred to here only where necessary for context.

DISCUSSION

I. Motion for Substitution of Judge

Before turning to the summary judgment motion, the court notes Plaintiff's "motion for substitution" in which he asks that the case be reassigned to "some other fair and impartial judge." He contends that the presiding judge's impartiality is tainted by his decision to name the judge as a defendant in another lawsuit, and believes this is the reason the court removed his appointed attorneys from the case. (Docket No. 193 ¶ 6.) The standard for recusal under 28 U.S.C. §§ 144, 455 is "whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits." Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996) (citation omitted). The judge's previous adverse rulings are not a sufficient basis for recusal, Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984), nor does the fact that a litigant has named a judge in a collateral lawsuit ordinarily establish a basis for recusal:

There is no rule that requires a judge to recuse himself from a case, civil or criminal, simply because he was or is involved in litigation with one of the parties. . . . . . One reason for this policy is that a per se rule of disqualification would allow litigants to judge shop by filing a suit against the presiding judge. . . . . And even if litigation against a judge is not for the purpose of disqualification, recusal is not automatic because suits against public officials are common and a judge would likely not harbor bias against someone simply because the person named in him in a meritless civil suit.

In re Taylor, 417 F.3d 649, 652 (7th Cir. 2005); see also United States v. Pryor, 960 F.2d 1, 3 (1st Cir. 1992) ("It cannot be that an automatic recusal can be obtained by the simple act of suing the judge."); Ronwin v. State Bar of Arizona, 686 F.2d 692, 700-01 (9th Cir. 1981) (a judge is not disqualified by a litigant's suit against him) rev'd on other grounds sub nom. Hoover v. Ronwin, 466 U.S. 558 (1984); United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977) (same). As the Seventh Circuit has explained, it is improper for a litigant "to create the ground on which he seeks the recusal of the judge assigned to his case. That is arrant judge-shopping." Sullivan v. Conway, 157 F.3d 1092, 1096 (7th Cir. 1998); accord, United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) ("Parties cannot be allowed to create the basis for recusal by their own deliberate actions. To hold otherwise would encourage inappropriate 'judge shopping.'")

As described above, the court has ruled in Plaintiff's favor on his RLUIPA claim. The only specific ruling that Plaintiff has identified as improper is the court's ruling permitting Plaintiff's appointed counsel to withdraw. (Docket No. 193 ¶ 4.) Plaintiff asserts that contrary to the court's statement, he has never "expressed any dissatisfaction to court with appointed counsel." (Id. ¶ 5.) Plaintiff did, however, name his attorneys as defendants in a civil action in which he alleged that they had conspired with the court and with defense counsel to deprive him of his civil rights. See Agrawal v. Pallmeyer, No. 07 C 4283. The court stands by its conclusion that the filing of that action constitutes an expression of dissatisfaction with his appointed lawyers. Removal of those lawyers from further service on this case is not a reflection of judicial bias.

Plaintiff's motion for substitution (193) is denied.

II. Defendants' Motion for Summary Judgment / ...


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