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Koger v. Dart

United States District Court, N.D. Illinois, Eastern Division

September 9, 2019




         This matter is before the Court on the Plaintiff's Motion for Reconsideration of Denial of Plaintiff's Motion for Summary Judgment [Doc. No. 175]. For the reasons that follow, Plaintiff's motion for reconsideration is granted, and the Court's prior order [Doc. No. 171] is vacated. Plaintiff's Motion for Summary Judgment [Doc. No. 115] is denied, and Defendants' Motion for Summary Judgment [Doc. No. 118] is granted.



         Plaintiff has moved the Court to reconsider its June 26, 2019 order granting Defendants' motion for summary judgment and denying Plaintiff's motion. See Koger v. Dart, No. 14 C 6361, 2019 WL 2616992 (N.D. Ill. June 26, 2019). In that opinion, the Court determined that because no damages claim survived after appeal, summary judgment in Defendant's favor was warranted. Specifically, the Court found that the lone property damage claim described by the Seventh Circuit in Lyons v. Dart, 901 F.3d 828 (7th Cir. 2018), was a procedural due process claim that was not pleaded and thus could not salvage Plaintiff's suit. Plaintiff contends that the Court committed a manifest error of law by not ruling on the merits of his First Amendment claim after the matter was vacated and remanded in part by the Seventh Circuit.[1]

         A party moving to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) “must clearly establish (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 955 (7th Cir. 2013) (citation and internal quotations omitted). A district court's ruling on a Rule 59(e) motion is reviewed under an abuse of discretion standard, meaning that it will not be disturbed unless “no reasonable person could agree with the decision to deny relief.” Id. “A ‘manifest error' is not demonstrated by the disappointment of the losing party.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Rather, “[i]t is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.'” Id.; see Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015). A Rule 59(e) motion “does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could or should have been presented to the district court prior to the judgment.” Popovitis v. Circuit City Stores, 185 F.3d 726, 730 (7th Cir. 1999).

         Plaintiff's claim of property damage for the loss of his books was properly treated as an unpleaded procedural due process claim. The complaint alleges his First Amendment rights were violated by the policy forbidding him from having more than three books in his cell, not by a policy related to the ultimate disposition of the books after confiscation. According to Plaintiff, the constitutional violation occurred upon removal of the books from his cell and existed whether the books were destroyed, put into the jail library, or maintained and returned to him upon release.

         If the books were impermissibly destroyed in violation of Plaintiff's procedural due process rights, the relevant inquiry would have been whether CCJ had a constitutionally adequate pre-deprivation process to deal with the confiscated materials. See Lyons, 901 F.3d at 830 (“[G]iven the nature of the [three-book] policy (as Koger describes it), some form of pre-deprivation process - such as asking a prisoner to designate what should be done with the excess books - would have been practical.”); see also Miller v. Downey, 915 F.3d 460, 464 (7th Cir. 2019) (noting that a prisoner's Fourteenth Amendment due process claim that a mailed newspaper was unconstitutionally confiscated and destroyed is separate from his First Amendment claim); Munson v. Gaetz, 673 F.3d 630, 637 (7th Cir. 2012) (explaining that a prisoner's claim that an alleged deprivation of a property interest in books is properly brought pursuant to the Fourteenth Amendment); Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008) (“To state a procedural due-process claim, a plaintiff must allege (1) deprivation of a protected interest, and (2) insufficient procedural protections surrounding that deprivation.”). However, Plaintiff did not allege a procedural due process violation, and he never asked the Court to reconsider its November 13, 2018 decision denying his motion to add such a claim after the case was remanded.

         Plaintiff also does not dispute that, having been released from the CCJ prior to filing the lawsuit, he lacked standing to obtain First Amendment injunctive relief. See Lyons, 901 F.3d at 830; UWM Student Ass'n v. Lovell, 888 F.3d 854, 860 (7th Cir. 2018). Thus, the thin reed on which Plaintiff's entire lawsuit presently rests is his prayer for nominal damages of $1.00 for the First Amendment violation. Cf. UWM Student Ass'n, 888 F.3d at 859 & n.4 (explaining that where a plaintiff seeks only injunctive relief, mootness/lack of standing disposes of the entire claim).

         In its rulings on summary judgment, this Court concluded that Plaintiff's prayer for nominal damages claim fell along with his requests for injunctive and declaratory relief. See Peterson v. Vill. of Downers Grove, 150 F.Supp.3d 910, 926 (N.D. Ill. 2015); Freedom from Religion Fndn., Inc. v. City of Green Bay, 581 F.Supp.2d 1019, 1029-30 (E.D. Wisc. 2008) (holding that a claim of nominal damages alone does not satisfy Article III's case or controversy requirement and that “for justiciability purposes, there is no reason to treat nominal and declaratory relief differently”); see also UWM Student Ass'n, 888 F.3d at 862 (“To the extent plaintiffs seek a declaratory judgment to secure emotional satisfaction from a declaration that they were wronged, that will not save their claims from being dismissed as moot.”). The Court is thus unconvinced that Plaintiff has shown the summary judgment order contained a manifest error. Nevertheless, in an effort to eliminate at least one appealable issue and save some litigation costs in this five-year-old case alleging no actual damages from the constitutional violation, [2] the Court will grant the motion to reconsider in order to address the underlying merits of Plaintiff's claim that he suffered a constitutional deprivation from CCJ's three-book policy.



         Plaintiff Gregory Koger was serving a 300-day sentence between July and October of 2013, in the Cook County Jail (“CCJ”). (Pl.'s LR 56.1(a)(3) at ¶1.) During this time, Koger asked friends to send him books and other reading materials. (Id. at ¶4.) Jail records show that during his sentence, Koger received forty-two books and one magazine. (Id. at ¶2.) While it is disputed whether Koger was allowed to possess more than three books in his cell, it appears that for most of his detention, Koger physically possessed more than three books in his cell at a time. (Id. at ¶3.)

         On October 5, 2013, CCJ corrections officers searched Deck 3A of Division 10 jail, where Koger was housed. (Id. at ¶5.) Plaintiff claims that correctional officers confiscated more than thirty books from him and left him with three books, not bothering to ask which three books he wanted to keep, and that he never saw the confiscated books again. (Id. ¶6.) Other inmates who were searched at that time similarly stated that correctional officers confiscated books and magazines from them and all other inmates in that housing unit, leaving each inmate with no more than three books.[4] (Id. at ¶7.)

         The policy used to confiscate the excess books found during the search is a formal written policy found in the Inmate Information Handbook (the “Handbook”) titled “Items Allowed in Your Cell.” (Id. at ¶¶15, 16.) The policy limits the amounts of property an inmate may possess in two ways. (Defs.' LR 56.1(a)(3) at ¶2.) First, inmates may possess only certain amounts of individual, numerically-limited items. (Id.) For example, inmates may only possess one comb, one bar of soap, four pairs of socks, etc. (Id.) Books and reading materials are also limited by this numerical policy. (Id. at ¶6.) Specifically, inmates may only possess: “THREE (3) TOTAL-MAGAZINES OR BOOKS PER INMATE (religious material excluded).” (Pl.'s LR 56.1(a)(3) at ¶15.) The policy allows CCJ inmates to keep unlimited legal papers, one Bible or Koran, one study book, and three magazines or books, not including religious material. (Defs.' LR 56.1(b)(3)(B) at ¶15; see also Defs.' LR 56.1(a)(3) at ¶29.)

         The second limitation imposed on inmates and their property is an overall volume limit on all personal items. (Defs.' LR 56.1(a)(3) at ¶2.) Excluding shoes, all other personal property, included numerically-limited items, must fit inside a “property bag, ” which is about two cubic feet in size. (Id. at ¶¶2, 20; see also Pl.'s LR 56.1(a)(3) at ¶¶ at 27-29.) If an inmate is in possession of materials in violation of either the numerical limit or volume limit, it is undisputed that the inmate would be considered to possess “contraband.” (Pl.'s LR 56.1(a)(3) at ¶17.) The Handbook defines the possession of contraband as an offense that can result in discipline and/or criminal charges. (Id. at ¶18.)

         There is no temporal limitation on keeping books and magazines in one's cell, and detainees are permitted to discard books and magazines if they have too many, share books and magazines with other detainees, check out up to two books from the library, and receive new books and magazines through the mail or from other sources. (Defs.' LR 56.1(a)(3) at ¶7.)

         Defendants' claimed justifications for the three-book policy are: (1) books and magazines can be used to set fires; (2) books can be used as weapons or as makeshift body armor; (3) books can be used to hide weapons or other contraband; (4) books can be used to send coded messages between inmates; (5) books can be used to jam cell doors or locks; (6) books can be used to cover windows or obstruct officers' view into cells; (7) inmates may have disputes over books; (8) pages from books and magazines can be used to clog toilets; (9) pages from books and magazines can be used to clog or cover ventilation systems; (10) limiting books limits clutter and tripping hazards for detainees and jail personnel; and (11) limiting the number of books and magazines limits the amount of overall property jail staff must search for contraband. (Pl.'s LR 56.1(a)(3) at ¶24.)

         B. Legal Standard

         Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Court must draw all reasonable inferences in favor of the nonmovant. Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001).

         However, once the movant has carried its burden under Rule 56(c), “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986). The party opposing summary judgment must offer admissible evidence in support of his version of events, and hearsay evidence does not create a genuine issue of material fact. McKenzie v. Ill. Dep't of Transp.,92 F.3d 473, 484 (7th Cir. 1996); see Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir. 1998) (“‘If the non-moving party bears the burden of proof on an issue, . . . that party may not rest on the pleadings and must instead show that there is a genuine issue of material fact.'”) (citation omitted). “The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. . . . The nonmovant will ...

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