United States District Court, S.D. Illinois
CHRISTOPHER H. MCCOY, Plaintiff,
ERIC T. EDMISTER, et al., Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the court on the Report and
Recommendation (“R & R”) (Doc. 112) of
Magistrate Judge Donald G. Wilkerson with regard to
Defendants Eric T. Edmeister and Jeffrey S. Walton's
Motion (Doc. 74) for Summary Judgment Regarding Qualified
Immunity. The defendants filed a Partial Objection (Doc. 113)
and the plaintiff filed a Response and Objection (Doc. 115)
to the R & R. The Court notes that the plaintiff filed a
Motion (Doc. 114) for Extension of Time to File a Reply. The
Court grants the extension and plaintiff's Response and
Objection is deemed timely filed.
plaintiff is proceeding in this matter on two counts of
violation of his First Amendment rights. In Count I,
plaintiff alleges that defendant Edmister read, and censored
by retaining, plaintiff's privileged attorney-client
correspondence and documents. Count II alleges that defendant
Walton retained and refused to return the confiscated
privileged attorney-client correspondence and documents. The
defendants move for summary judgment arguing that they are
entitled to qualified immunity.
Court may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in a
report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court
must review de novo the portions of the report to
which objections are made. The Court has discretion to
conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed
necessary. Id. “If no objection or only
partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
& R recommends that the motion for summary judgment be
granted and that defendants Edmister and Walton are entitled
to qualified immunity with regard to plaintiff's claims
for damages. Defendants' partial objection applies only
to that portion which recommends that the plaintiff's
claims for injunctive relief survive. Defendants note that
plaintiff's claims for injunctive relief are moot,
because the plaintiff is no longer incarcerated at USP Marion
- where defendant Edmister is a correctional counselor - and
that defendant Walton is no longer employed by the Bureau of
Prisons (“BOP”). As such, neither defendant can
provide the injunctive relief requested. The defendants also
argue that there is nothing to suggest that either defendant
is in possession of the requested material as the plaintiff
testified that he saw the material in Counselor Pitts'
office - not in the possession of either defendant.
the defendants argue that “qualified immunity may not
resolve claims for injunctive relief in certain
circumstances, ” but that the R & R's
recommended findings resolve claims for damages as well as
injunctive relief since they support a ruling on the first
prong of the qualified immunity analysis.
Response and Objections to the R & R argues that the R
& R, “revisits ground already decided and denied to
the Defendants but, now that same ground sown with the same
seed produces a different fruit” and “magically
it transforms itself into a whole new idea, thought and
magically a different result happens.” (Doc. 115, pg
2). Plaintiff also cites to “BOP PS
1315.07(10(d)” stating that, “Paragraph (2) there
states ‘Staff may allow an inmate to possess
those legal materials which are necessary for the
inmates own legal action.'” (Correct
citation 28 C.F.R. § 543.11(d)(2), underline in
brief, not in original text.) The Court notes that
paragraph (2) also goes on to state that, “The Warden
may limit the amount of legal materials an inmate may
accumulate for security or housekeeping reasons.” By
the plaintiff's own argument and citation to BOP
regulations, the staff “may, ” but are not
required to, allow an inmate to possess legal materials and
that the Warden may limit the amount.
such, the Court has reviewed de novo that portion of
the R&R with regard to qualified immunity. The Court
agrees and adopts the well-reasoned analysis contained in the
R & R that the defendants' conduct did not raise to a
violation of Plaintiff's constitutional rights.
regard to the plaintiff's arguments that this is,
“same ground sown” as in “Doc # 25, Doc
#26, Doc # 30, Doc #41 and Defendants Doc 29, ” the
Court has reviewed these prior documents. Threshold review
and a Rule 12(b)(6) motion to dismiss deal with pleadings.
Pro se pleadings are liberally construed and are not
required to explicitly refer to a proper statute or legal
theory in order to state a cause of action - as long as
relief is possible under the statute or theory consistent
with the facts pled. See Haines v. Kerner, 404 U.S.
519, 520 (1972); Hudson v. McHugh, 148 F.3d 859, 864
(7th Cir. 1998) and Kennedy v. National Juvenile
Detention Ass'n, 187 F.3d 690, 695 (7th Cir. 1999),
cert. denied, 120 S.Ct. 1169 (2000); Tolle v.
Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir.
1992). These are not the same standards that apply to
qualified immunity. Defendants' motion to dismiss was
limited to the four corners of the complaint and the Court
could not consider BOP's policies with regard to legal
and/or sensitive documents. A motion for summary judgment;
however, considers documents beyond the complaint including
defenses, regulations, and deposition testimony. Therefore,
although similar issues were previously addressed by this
Court, a different outcome may result given the standard
under which the analysis is conducted.
Plaintiff does not cite to any case law or regulation that
requires BOP officials to allow the plaintiff to possess any
amount of legal materials within a prisoner's cell - only
that the plaintiff must have access to those materials.
Further, “[t]he legal materials are subject to
inspection and may be read or copied unless they are received
through an authorized attorney visit from a retained attorney
or are properly sent as special mail (for example, mail from
a court or from an attorney), in which case they may be
inspected for contraband or for the purpose of verifying that
the mail qualifies as special mail.” 28 C.F.R. §
difficulty that the Court is having is determining whether
the plaintiff has, or has had, access to his legal documents.
Plaintiff's objection to the R & R requests that the
Court, “explain to the Plaintiff where the
Plaintiff's 600 pages of legal materials went.”
(Doc. 115). According to his initial grievance, the plaintiff
stated, “The issue here is not access, but rather the
reading and keeping of my attorney-client privileged legal
mail.” (Doc. 74-4, pg 39.) Therefore, at the time
plaintiff filed his grievance, it appears that the BOP had
the documents and that the plaintiff ...