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Paryton v. Cannon

United States District Court, Seventh Circuit

December 30, 2013

THOMAS PAYTON (#R-10454), Plaintiff,
CHRIS CANNON, et al., Defendants.



Tobias Payton (hereinafter, "Payton" or "Plaintiff"), an inmate at the Stateville Correctional Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Payton contends that Defendants Chris Cannon, the former Publications Review Chairman at Stateville; Colleen Franklin, a correctional counselor; Marcus Hardy, the former warden of Stateville; Kevin Frain, the present Publications Review Chairman; Mary Berry, Records Office Supervisor at Stateville; Patricia Weghorn, a mail room worker at Stateville; and Salvador Godinez, the Director of the Illinois Department of Corrections, (hereinafter, the "Defendants") violated his constitutional rights by wrongfully censoring his adult-themed mail, and by denying him a meaningful grievance procedure in violation of his rights to due process. This matter is before the Court for ruling on the Defendants' Motion for Summary Judgment [ECF No. 79]. For the reasons stated in herein, the Motion for Summary Judgment is granted.


A. Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Weber v. Universities Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010). The court does not "judge the credibility of the witnesses, evaluate the weight of the evidence, or determine the truth of the matter. The only question is whether there is a genuine issue of fact." Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009), citing Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986).

However, Rule 56 "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. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Sarver v. Experian Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted). "A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Egonmwan v. Cook County Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010), quoting Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008).

B. Local Rule 56.1 (N.D. Ill.)

Defendants filed Statements of Uncontested Material Facts pursuant to Local Rule 56.1 (N.D. Ill.). Together with their Motion for Summary Judgment, Defendants included a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" [ECF No. 82], as required by Local Rule 56.2. That Notice clearly explained the requirements of the Local Rules and warned Plaintiff that a party's failure to controvert the facts as set forth in the moving party's statement results in those facts being deemed admitted. See, e.g., Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file:

(3) a concise response to the movant's statement that shall contain
(A) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and
(B) a statement, consisting of short numbered paragraphs, of any additional facts that require denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon.

L.R. 56.1(b).

The district court may rigorously enforce compliance with Local Rule 56.1. See, e.g., Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) ("Because of the high volume of summary judgment motions and the benefits of clear presentation of relevant evidence and law, we have repeatedly held that district judges are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings") (citing Ammons v. Aramark Uniform Serv., Inc., 368 F.3d 809, 817 (7th Cir. 2004). Although pro se plaintiffs are entitled to lenient standards, compliance with procedural rules is required. Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006); see also, Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1108 (7th Cir. 2004). "We have... repeatedly held that a district court is entitled to expect strict compliance with Rule 56.1." Cichon v. Exelon Generation Co., 401 F.3d 803, 809 (7th Cir. 2005).

Despite the admonitions stated above, Plaintiff failed to file a response to Defendants' statements of uncontested facts. A motion for summary judgment "requires the responding party to come forward with the evidence that it has - it is the put up or shut up' moment in a lawsuit." Eberts v. Goderstad, 569 F.3d 757, 767 (7th Cir. 2009) (citations omitted). As Plaintiff has failed to do so, Defendants' proposed undisputed facts are deemed admitted. See, Chelios v. Heavener, 520 F.3d 678, 687 (7th Cir. 2008); L.R. 56.1(b)(3)(B).


Plaintiff, Tobias Payton, is an inmate in state custody who, at all times referenced in his Complaint, was incarcerated at Stateville Correctional Center ("Stateville"), a maximum security prison located in Joliet, Illinois. See, Def. St. of Fact ¶ 1. Plaintiff alleges a violation of 42 U.S.C. 1983, based upon an alleged denial of his First Amendment rights by confiscating certain adult-themed magazines and photographs. See, Def. St. of Fact ¶¶ 2 and 11.

The Defendants are: Kevin Frain, who is the Publications Review Chairman at Stateville, and as such, reviews incoming publications to inmates and decides whether they are acceptable or contraband, see, Def. St. of Fact ¶ 3; Marcus Hardy, who was the Warden at Stateville from December 1, 2009 to December 31, 2012, and is currently the warden at Sheridan Correctional Center, see, Def. St. of Fact ¶ 4; Chris Cannon, who is the former Publications Review Chairman at Stateville, where he reviewed incoming publications to inmates and decided whether they were acceptable or contraband, see, Def. St. of Fact ¶ 5; Colleen Franklin, who is presently a Correctional Counselor II at Stateville, and during the time period of the Complaint was a Grievance Officer (the "G.O.") who reviewed inmate grievances, see, Def. St. of Fact ¶ 6; Patricia Weghorn, who was a mailroom employee at Stateville from June 1, 2011 to December 16, 2012, and is currently an Information-Technology Services Employee at Stateville, see, Def. St. of Fact ¶ 7; Mary Berry, who works in the Records Office at Stateville and has worked in the mailroom in the past for overtime pay when the mailroom was understaffed or high volume of inmate's personal mail needs to be shaken down, which is when personal mail is opened and inspected for violations of all applicable Stateville Rules, see, Def. St. of Fact ¶ 8; and Salvador Godinez, who is the Director of the Illinois Department of Corrections, see, Def. St. of Fact ¶ 9.

The State of Illinois has put in place 20 Illinois Administrative Code 525.230, Procedure for Review of Publications, which addresses the procedure for prisons to follow in regulating, and controlling publications, which are ordered by inmates. See, Def. St. of Fact ¶ 12. Illinois Department of Corrections ("IDOC") implemented the requirements of the Illinois law in Administrative Directive 04.01.108, which requires prisons to assess and inspect all publications for contraband. See, Def. St. of Fact ¶ 13.

According to the policy, publications that appear to violate Administrative Code 525.230 are to be referred to the Publications Review Officer. See, Def. St. of Fact ¶ 14. Following the Publication Review Officer's review, publications are placed on the prison and IDOC Approved, Conditionally Approved, or Disapproved Publication List, respectively. See, Def. St. of Fact ¶ 15. Publications that meet certain criteria may be disapproved. See, Def. St. of Fact ¶ 16. Included in the criteria used by the Publications Review Officer to determine whether a publication should be disapproved are: publications that have been redacted, altered, or otherwise modified from the original published edition; publications which are obscene; publications that include sexually explicit material that by its nature or content poses a threat to security, good order of the facility, or discipline; and publications that are determined to be detrimental to security, good order of the facility, rehabilitation or discipline. Id. Publications that are disapproved are considered contraband and are disposed of. See, Def. St. of Fact ¶ 17.

The IDOC Publications Committee has compiled a list of Approved/Disapproved Publications. See, Def. St. of Fact ¶ 19. The Publications Committee categorizes magazines and printed material in conformance with A.D. 04.01.108. See, Def. St. of Fact ¶ 20. An inmate who disagrees with the findings of the publications review may file a grievance concerning the decision. See, Def. St. of Fact ¶ 18.

On March 20, 2007, Terry L. McCann, as Warden of Stateville, established in Warden's Bulletin 2007-44 a list of thirty-six items that would be considered contraband and would not be allowed through the Stateville mail room, including "nude pictures." See, Def. St. of Fact ¶ 21. The banned item "nude pictures" was amended in Warden's Bulletin 2011-93 to be "nude photos or prints" to reflect how Warden's Bulletin No. 2007-44 had been enforced under Warden Hardy. Id. Warden Hardy has observed that in the maximum security correctional setting, such as Stateville, the general population of inmates is more aggressive. See, Def. St. of Fact ¶ 22. Hardy has also observed that publications and photographs that depict nudity make prisons less safe by: (1) increasing black-market trading and exchange of contraband; (2) increasing physical safety issues between inmates and negatively affecting inmate relationships; and (3) increasing harassment of female employees working at the maximum security facilities. See, Def. St. of Fact ¶ 23. While Warden of Stateville, ...

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