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Duncan v. Walker

October 18, 2010

DARRYL DUNCAN, PLAINTIFF,
v.
ROGER WALKER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Harold A. Baker United States District Judge

SUMMARY JUDGMENT ORDER

This cause is before the court for consideration of the defendants' motion for summary judgment [d/e 40]; the plaintiff's motion for sanctions [d/e 60] and the plaintiff's motion for a preliminary injunction [d/e 69].

I. BACKGROUND

The plaintiff filed his lawsuit pursuant to 42 U.S.C. §1983 claiming his constitutional rights were violated at Hill Correctional Center. On July 28, 2008, the court conducted a merit review of the plaintiff's complaint and found that he had adequately alleged that:

1) Defendants Illinois Department of Corrections Director Roger Walker, Warden Guy Pierce, Warden Gerardo Acevedo, Warden Michelle Pulley, Warden Steve Wright, Teacher Matthew Pogue, Correctional Officer Bill Smith and Administrative Review Board Member Melody Ford violated the plaintiff's constitutional right to meaningful access to the courts;

2) Defendants Walker, Pierce, Acevedo, Pulley, Wright, Pogue, Smith and Ford retaliated against the plaintiff based on his attempts to file a lawsuit and his previous lawsuits; and,

3) Defendant Vern Peterson violated the plaintiff's Eighth Amendment rights on November 1, 2007. July 28, 2008 Merit Review Order.

Specifically, the plaintiff says he was denied legal supplies which lead to the dismissal of a lawsuit. The plaintiff says the action was taken in retaliation for his lawsuits. In addition, the plaintiff says on November 1, 2007, Defendant Peterson locked him in the law library with no running water or bathroom for at least two hours.

II. FACTS

Brian Fairchild is the Chairperson of the Office of Inmate Issues and is familiar with the record keeping for the Administrative Review Board (herein ARB). Fairchild says he has searched the records of the ARB and found a grievance dated October 15, 2007, in which the plaintiff said he had been denied legal materials he needed to respond to a court order. (Def. Mot, Fair. Aff., p. 2) In his grievance, the plaintiff clearly states that Defendants Wright, Pogue, Smith and Pulley have denied him meaningful access to the courts. (Comp., p. 13-14). There is no mention of any other individual. In a February 6, 2008 letter, Melody Ford recommended that the grievance be denied and on the same day, Director Walker's designee agreed with that recommendation. (Def. Mot, Fair. Aff., p. 2) Fairchild says that Director Walker did not receive or review the inmate's grievance. The plaintiff also admits he has never met or spoken with Defendant Walker. (Def. Mot, Plain. Depo., p. 67)

Fairchild says there is no record of any grievance from the plaintiff concerning his claims that any defendant refused to provide him legal materials based on retaliation, and there is no grievance concerning his claim that Defendant Peterson locked him in the law library.(Def. Mot, Fair. Aff., p. 2)

Defendant Matthew Pogue says he is an Educator at Hill Correctional Center but was filling in at the law library desk on August 31, 2007. (Def. Memo, Pog. Aff, p. 1). Pogue says the plaintiff asked him for copies and supplies. Pogue says he told the plaintiff that the copies could only be made of legal materials and only indigent prisoners were entitled to supplies. (Def. Memo, Pog. Aff, p. 1) In his complaint, the plaintiff says he asked for paper and envelopes. (Comp., p. 8-9) Defendant Pogue says he also told the plaintiff that if he took supplies, and it was determined he was not indigent, he could receive a disciplinary ticket. Pogue says he does not recall the plaintiff telling him about an upcoming court deadline. (Def. Memo, Pog. Aff, p. 1)

Defendant Pogue says Warden Pulley was not in the law library on that day and he did not contact her regarding the plaintiff. (Def. Memo, Pog. Aff, p. 1) The plaintiff also states that he did not personally talk to Defendant Pulley concerning his problems with legal supplies in August of 2007.

Pogue says he called the Business Office Administrator, Bill Smith, to inquire about the plaintiff's financial status. (Def. Memo, Pog. Aff, p. 1) Bill Smith says indigent meant "to be without the expectation of funds" and the plaintiff was not indigent in this respect. (Def. Memo, Smith Aff., p. 1). However, on August 31, 2007, the plaintiff was charged $1.65 for legal postage which left his trust fund balance at -$5.48. (Def. Memo, Wright Aff., p. 1).

Business Officer Administrator Smith says his records indicated that the plaintiff was receiving state pay and money from outside sources, so he was not indigent. Smith says the plaintiff's trust fund ledgers showed he received money on four occasions from July 13, 2007 to September 14, 2007 in amounts from $8 to $25. (Def. Memo, Smith Aff., p. 1) Smith also says the plaintiff was given an opportunity to go to the Commissary where he could purchase envelopes and postage on July 25, 2007; August 7, 2007; and September 18, 2007. (Def. Memo, Smith Aff., p. 1)

Defendant Wright says he also spoke with the plaintiff in the law library on August 31, 2007, after Defendant Pogue informed him of the plaintiff's request for supplies. Wright says he also told the plaintiff that supplies were for indigent inmates. (Def. Memo, Wright Aff., p. 1). Wright further repeated that if the plaintiff took supplies and he was not indigent, he could receive a disciplinary ticket for giving false information to an employee. (Def. ...


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