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Ducey v. Flagg

September 23, 2009

SCOTT R. DUCEY, PLAINTIFF,
v.
JULIUS FLAGG, DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Plaintiff Scott R. Ducey, a prisoner acting pro se, sued various Illinois Department of Corrections ("IDOC") officials on February 16, 2005 alleging violations of his constitutional rights. Complaint at 4--6, Ducey v. Walker, No. 05-CV-0102-MJR (S.D. Ill. Aug. 14, 2009). On September 30, 2008, the District Court severed Plaintiff's claims into four separate lawsuits. Ducey, No. 05-CV-102-MJR, slip op. at 5 (S.D. Ill. Sept. 30, 2008) (memorandum and order). This case is one of those separate lawsuits. It contains one claim against one defendant-Julius Flagg-for violation of Plaintiff's rights under the First Amendment. Plaintiff specifically alleges that Defendant Flagg violated his First Amendment rights in denying his request to take a paralegal correspondence course while an inmate at Pinckneyville Correctional Center ("Pinckneyville").

BACKGROUND

Currently pending before the Court is Defendant Flagg's Motion for Summary Judgment. (Doc. 65.) In that motion, Defendant Flagg argues that he is entitled to summary judgment in his favor for three reasons: (1) the Plaintiff failed to exhaust his administrative remedies prior to filing suit as required by law, see 42 U.S.C. § 1997e(a) (2006); (2) the denial of the correspondence course did not violate Plaintiff's First Amendment rights; and (3) Defendant Flagg is protected by qualified immunity. Plaintiff did not file a response to the Motion for Summary Judgment, but on November 19, 2008, Plaintiff sent a large number of documents to the Court relating to all of the issues raised in his original complaint filed in Ducey v. Walker. The Clerk filed these documents in each of Plaintiff's severed lawsuits. Among the documents relevant to this case were a verified "Declaration of Scott R. Ducey" and two hand-copied grievances regarding denial of the correspondence course. (Doc. 81-4, Ducey Decl. 1--8.)

UNDISPUTED MATERIAL FACTS

The Court finds the following to be undisputed material facts: Plaintiff was an inmate incarcerated at Pinckneyville Correctional Center in 2004; Defendant Flagg was Assistant Warden of Programs during that time. In 2004, Plaintiff sought institutional permission to enroll in the Blackstone paralegal correspondence course. On August 11, 2004, Defendant Flagg sent Plaintiff a memo denying the request and stating that correspondence courses are not allowed at Pinckneyville. (Ducey Decl. ¶ 8.) The first shipment of the correspondence course arrived on October 7, 2004. The materials were not delivered to Plaintiff. Instead, Plaintiff received a Notification of Unauthorized Items. (Doc. 91, Ducey Dep. 56.) A second shipment of course items arrived at Pinckneyville on November 17, 2004. Again, Plaintiff received a Notice of Unauthorized Items instead of the materials. (Id.)

Exhaustion of Administrative Remedies

On October 7, 2004, the Plaintiff filed a grievance with his counselor regarding the denial of the correspondence course materials. (Ducey Decl. 5--6.) Plaintiff did not receive a response to that grievance. (Ducey Decl. ¶ 7.) On November 15, 2004, Plaintiff filed another grievance with his counselor regarding the lack of response to his October 7 grievance and the denial of the correspondence course. (Id. at 7--8.) He did not receive a response to this grievance either. (Id. ¶ 7.)

Plaintiff did not file any appeals of grievances regarding a correspondence course to the Administrative Review Board. (Doc. 91, Anderson Aff. ¶ 7.) No grievances regarding denial of a correspondence course from 2004 appear in Plaintiff's IDOC master file. (Doc. 97-2, Crafton Aff. ¶¶ 3--4.)

First Amendment Claim

It is a long-standing policy that inmates at Pinckneyville may not participate in correspondence courses. In the affidavit submitted with the motion for summary judgment, Defendant Flagg averred:

When I became Assistant Warden of Programs at Pinckneyville, I was advised that Pinckneyville did not allow inmates to take correspondence courses because they required the prison to provide a proctor to administer the exams. I continued that rule during my tenure there. The prison contracts with the school district and college to provide employees to teach GED and vocational courses offered by the prison to the inmates, not to sit with inmates who are taking tests in courses purchased from outside the prison. Further, the prison cannot afford to shift already depleted security staff from their security assignments to proctor exams for inmates every time one of them wants to take a correspondence course. (Doc. 91, Flagg Aff. ¶ 5.)

Plaintiff claims to have enrolled in and completed a religious correspondence course from the Crossroads Bible Institute in 2004. (Doc. 91, Ducey Dep. 58.) Defendant Flagg was not aware that Plaintiff was participating in the course. (Flagg Aff. ¶ 7; Ducey Dep. 59.) The packages of Bible course materials were not stopped by the mailroom; they looked like regular shipments of religious materials. (Ducey Dep. 59--60.) The Bible correspondence course did not require proctored exams. (Id. at 59.)

Plaintiff claims that another inmate, Patrick Brown, took a correspondence course while at Pinckneyville to become a peer educator. (Id. at 60--61.) The course required exams by proctor (Id. at 61.) Defendant Flagg clarified that the course was not a traditional correspondence course, but a program offered directly through the IDOC to train inmates ...


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