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UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
BENNIE CUNNINGHAM, Plaintiff-Appellant,
v.
MICHAEL F. O'LEARY, et al., Defendants-Appellants.
40 Fed. Appx. 232
June 26, 2002, Decided
NOTICE:
RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Illinois prisoner Bennie
Cunningham appeals the district court's judgment dismissing his claims of
retaliation in violation of the First Amendment and excessive force in
violation of the Eighth Amendment. We affirm, but on grounds other than those
relied upon by the district court.
In September 1997 Mr. Cunningham
filed suit under 42 U.S.C. § 1983, alleging that prison officials violated his
constitutional rights on numerous occasions while he was confined at the
Pontiac Correctional Center between October 1995 and September 1996. According
to Cunningham, the defendants retaliated against him for his participation as a
founding member of the African/African American Cultural Coalition and for his
pursuit of grievances and lawsuits, by writing false disciplinary reports,
assigning him to a cell by the gun tower, denying him prison jobs and
visitation privileges, and ultimately transferring him. In addition, Mr.
Cunningham alleged that in August 1996 three of the defendant guards used
excessive force in subduing him after he and one of the guards got into an altercation
when the guard tried to read Mr. Cunningham's legal papers during a shakedown
of his cell. Mr. Cunningham later received a disciplinary conviction for this
incident and another for threatening the guard after the confrontation.
Finally, Mr. Cunningham alleged that the defendants destroyed his property.
In
February 1998 the defendants filed a motion to dismiss Mr. Cunningham's
complaint, which the district court initially granted in part. The court
dismissed the destruction-of-property claim as frivolous because Mr. Cunningham
had an adequate state-law remedy, and concluded that, to the extent Mr.
Cunningham was seeking to have his disciplinary convictions overturned, relief
was barred by Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct.
2364 (1994). The court also concluded, however, that Mr. Cunningham properly
stated retaliation and excessive-force claims, as well as a state-law claim for
battery.
In
January 2000 the defendants moved for summary judgment, and both parties submitted
briefs and supporting materials. The district court struck the affidavit and
statement of disputed facts that Mr. Cunningham submitted to oppose summary
judgment because the affidavit was not based on personal knowledge and the statement did not comply
with local rules. But the district
court, apparently reanalyzing the earlier decision on the defendants' motion to
dismiss, concluded that the disciplinary convictions were the "nucleus of
the plaintiffs complaint," and because they had not been overturned, the
retaliation and excessive-force claims were Heck-barred. The court, although
dismissing without prejudice, also reasoned that Mr. Cunningham could not in
any event succeed on his retaliation claim because he had no constitutionally
protected interest in particular cell assignments, prison jobs, visitation, or
transfer. Finally, the court declined to exercise supplemental jurisdiction
over the state-law claim.
We
review the district court's judgment de novo, taking the facts and reasonable inferences
in the light most favorable to Mr. Cunningham. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 245, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Copus v.
City of Edgerton, 151 F.3d 646, 648 (1998). On appeal Mr. Cunningham argues that the district court
erred in concluding (1) that his claims were Heck-barred and (2) that his
retaliation claim was without merit because he had no protected interest in the
privileges underlying the alleged retaliatory conduct. We agree.
[*235] Under Heck, inmates
cannot bring a lawsuit under § 1983 that, if successful, would necessarily
imply the invalidity of a conviction that has not been overturned, see 512 U.S.
at 489-90, and this bar applies to prison disciplinary convictions as well, see Edwards v. Balisok, 520 U.S. 641, 137 L.
Ed. 2d 906, 117 S. Ct. 1584 (1997). Heck, however, does not apply when the §
1983 claim could not implicate the fact or duration of confinement. See DeWalt
v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). And because just two of the
allegedly false disciplinary convictions resulted in the loss of good-time
credits, Mr. Cunningham's retaliation claim would be precluded only to the
extent it would imply the invalidity of these convictions. See Johnson v. Litscher, 260 F.3d 826, 830-31
(7th Cir. 2001). Likewise, Mr. Cunningham's excessive-force claim is not
Heck-barred simply because he received a disciplinary conviction for the
incident. See Robinson v. Doe, 272
F.3d 921, 923 (7th Cir. 2001).
Moreover, Mr. Cunningham's retaliation
claim is not without merit just because he had no independent constitutional
right relating to cell assignments, prison jobs, visitation, and transfer. What
Mr. Cunningham alleged is that the defendants punished him for exercising his
First Amendment rights, and whether he enjoyed a liberty or property interest
in the privilege at issue is irrelevant. See, e.g., DeWalt, 224 F.3d at 618-19 (prison job); Babcock v. White, 102
F.3d 267, 275 (7th Cir. 1996) (retaliatory transfer).
Still, we may affirm the
district court's judgment on any ground supported by the record, see Lawson v. CSX Trans., Inc., 245 F.3d 916,
929 (7th Cir. 2001); Bay v. Cassens Transp. Co., 212 F.3d 969, 972-73 (7th Cr.
2000), and Mr. Cunningham's retaliation and excessive-force claims could not
have survived the defendants' motion for summary judgment. In order to survive
summary judgment, Mr. Cunningham needed to offer evidence establishing a
genuine issue for trial, but he failed to do so. See Outlaw, 259 F.3d at 837. Mr. Cunningham's only evidence was
his own affidavit, which the district court struck because it was not based on
personal knowledge.
Mr. Cunningham argues that striking the
affidavit was an abuse of discretion, see
Johnson v. Nordstrom,
Inc., 260 F.3d 727, 735 (7th Cir. 2001), but
having examined the 40-page document we conclude otherwise. Though Mr. Cunningham may have
possessed personal knowledge of some the events discussed, his statements
relating to the retaliation and excessive-force claims constitute nothing more
than conjecture about the defendants' intentions and motives. Affidavits, even
from pro se litigants, must be based on personal knowledge and relate
admissible facts. Fed. R. Civ. P. 56(e); Markel v. Bd. of Regents, 276 F.3d 906,
912 (7th Cir. 2002); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999). Mr.
Cunningham's affidavit fails to do this.
Once the affidavit was stricken,
summary judgment on the retaliation and excessive-force claims was inevitable.
To survive summary judgment
on the retaliation claim, Mr. Cunningham needed evidence that the defendants
harbored a retaliatory motive absent which he would not have received the
disciplinary reports, unfavorable cell assignments, and transfer, and would
have received the prison jobs and visitation privileges. Babcock, 102 F.3d at 275. On the
excessive-force claim, he needed evidence that the force was applied
"maliciously and sadistically to cause harm" rather than in a "good
faith effort to maintain or restore discipline." Outlaw, 259 F.3d at 837
(quoting Hudson v. McMillian, 503 U.S. 1,
7, [*236] 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992)). Mr. Cunningham did not
have evidence of either; therefore, the defendants were entitled to summary
judgment.
Finally, Mr. Cunningham raises three procedural arguments: that the
district court erred (1) in denying his requests for appointment of counsel;
(2) in not appointing an expert to examine whether a videotape had been
altered; and (3) in denying a request for photographs of certain areas in the
prison. We review these decisions for abuse of discretion. Luttrell v. Nickel,
129 F.3d 933, 936 (7th Cir. 1997) (assistance of counsel); Ledford v. Sullivan,
105 F.3d 354, 361 (7th Cir. 1997) (expert witness); Woods v. City of Chicago, 234
F.3d 979, 990 (7th Cir. 2001) (discovery requests). The court denied the
requests for appointment of counsel only after concluding that the case did not
raise complex legal or factual issues, and that Mr. Cunningham, who has
litigated pro se cases before, was competent to litigate his case--a conclusion
supported by the many motions and discovery requests filed by Mr. Cunningham.
In these circumstances the court did not abuse its discretion in not appointing
counsel. See Luttrell, 129 F.3d at 936; Farmer v. Haas, 990 F.2d 319, 322-23
(7th Cir. 1993). Likewise, the district court did not abuse its discretion in
denying Mr. Cunningham's request for a court-appointed expert to examine
whether a security-camera videotape he received during discovery had been tampered
with, and in denying his request for photographs. Mr. Cunningham has not
demonstrated that the expert or the photographs were necessary to prove his
claims or explained how either would have helped create a genuine issue of
material fact. See Woods, 234 F.3d
at 990; Ledford, 105 F.3d at 361.
Accordingly, the district court's judgment is AFFIRMED.