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UNITED STATES DISTRICT COURT
Allen Tony Davis,
Plaintiff,
vs.
Milwaukee County, et al.,
Defendants.
Case No. 00-C-0786
225 F. Supp. 2d 967
September 30, 2002, Decided
September 30, 2002, Filed
DECISION AND ORDER
Plaintiff
Allen Tony Davis, a Wisconsin state prisoner currently incarcerated at the
Supermax Correctional Institution, brings this pro se civil rights action under
42 U.S.C. § 1983, claiming that when he was a pre-trial detainee at the
Milwaukee County Jail ("the jail") defendants Milwaukee County and
its former sheriff, Robert Kliesmet, violated his constitutional right [*970]
of access to the courts. Defendants now move for summary judgment.
I. FACTS
Plaintiff
was detained at the jail between October 27, 1995 and November 26, 1996 having
been charged with four counts of sexual
assault of a child. During that time detainees at the jail had no access to
legal materials of any kind. n1 Plaintiff asserts that the absence of legal
materials hindered his efforts to defend himself in the sexual assault case and
to pursue five civil cases in which he was the plaintiff.
The cases
which form the basis for plaintiff's denial of access to the courts claim are
as follows: (1) Milwaukee County Circuit Court Case No. F-941186, the criminal
case on which he was detained and later convicted; (2) Seventh Circuit Court of
Appeals Case No. 95-3555, an appeal of a § 1983 case brought by plaintiff against
state corrections officials in the Eastern District of Wisconsin, which was
dismissed by the court of appeals on December 19, 1995; (3) Wisconsin Court of
Appeals Case No. 96-2468-W, in which
plaintiff, while detained at the jail, unsuccessfully petitioned for a
supervisory writ directing the jail to give him visitation rights; (4)
Wisconsin Court of Appeals Case No. 96-2604-W, which also involved an
unsuccessful petition by plaintiff for a supervisory writ regarding visitation
rights at the jail; (5) Western District of Wisconsin Case No. 99-C-445, a §
1983 case brought by plaintiff in 1999 in which he alleged that he had been
subjected to unlawful corporal punishment at the jail, and which was dismissed
by the court sua sponte for failure to exhaust administrative remedies; and (6)
Western District of Wisconsin Case No. 99-C-447, also a § 1983 case brought in
1999, in which plaintiff challenged a number of conditions of his confinement
at the jail, and which was also dismissed sua sponte for failure to exhaust. n2
II. SUMMARY JUDGMENT STANDARD
Summary judgment is required "if 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 judgment as a matter of law." Fed. R. Civ. P. 56(c).
"Material" facts are those facts that might affect the outcome of the
suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106
S. Ct. 2505 (1986). A dispute over such facts is "genuine" if the
evidence is such that a reasonable trier of fact could find in favor of the
nonmoving party. Id.
The movant bears the burden of establishing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the court concludes there is
no genuine issue of material fact but that the law compels a judgment in favor
of the non-movant, it may grant summary judgment in favor of the non-movant,
even in the absence of a cross-motion for summary judgment, so long as the
movant has been provided with an adequate opportunity to present its evidence
and arguments. See 10A Charles A. Wright et al., Federal Practice and
Procedure [*971] § 2720 (1998); see also Kassbaum v.
Steppenwolf Productions, Inc., 236 F.3d 487, 494 (9th Cir. 2000), cert. denied,
534 U.S. 815, 151 L. Ed. 2d 13, 122 S. Ct.
41 (2001) ("It is generally recognized that a court has the power
sua sponte to grant summary judgment to a non-movant when there has been a
motion but no cross-motion."); Goldstein v. Fidelity & Guar. Ins.
Underwriters, 86 F.3d 749, 750-51 (7th Cir. 1996) (holding that grant of
summary judgment to non-movant was proper where movant knew summary judgment
was being considered, district court agreed there were no material factual
disputes, but found that facts compelled judgment in favor of non-movant as a matter
of law); Int'l Union of Operating Eng'rs, Local 150, AFL-CIO v. Village of
Orland Park, 139 F. Supp. 2d 950, 957 (N.D. Ill. 2001) ("This judicial
power furthers the policy goals of Federal Rule of Civil Procedure 56, in that
it enables a court to promptly dispose of a case in which there are no genuine
issues of material fact.").
III. DISCUSSION
A. Standard for Establishing
Liability on Claim of Denial of Access
to the Courts
It is well
established that prisoners and pre-trial detainees have a constitutional right
of access to the courts. Bounds v.
Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977); Casteel v.
Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993). This right "requires prison
authorities to assist inmates in preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law." Bounds, 430 U.S. at 828.
To establish a denial of his
constitutional right an inmate must show that the jail had deficient legal
facilities and that he was hindered in his efforts to pursue a particular legal
claim. See Lewis v. Casey, 518 U.S. 343, 351, 135 L. Ed. 2d 606, 116 S. Ct.
2174 (1996); see also Alston v. DeBruyn, 13 F.3d 1036, 1040-41 (7th Cir. 1994)
(holding that inmate must establish (1) the failure of prison officials to assist in the preparation and filing
of meaningful legal papers and (2) some quantum of detriment caused by the
challenged conduct). Thus, even if the inmate can establish an "absolute deprivation of access to
all legal materials," Lewis, 518 U.S. at 353 n.4, his claim will fail
absent identification of some injury linked to the deprivation.
He might show, for example, that a complaint he prepared was dismissed
for failure to satisfy some technical requirement which, because of
deficiencies in the prison's legal assistance facilities, he could not have
known. Or that he had suffered arguably actionable harm that he wished to bring
before the courts, but was so stymied by inadequacies of the law library that
he was unable even to file a complaint.
Id. at 351.
Moreover,
the injury requirement is not satisfied by all types of frustrated legal
claims.
Bounds does not guarantee inmates the wherewithal to transform themselves
into litigating engines capable of filing everything from shareholder
derivative actions to slip-and-fall claims. The tools it requires to be
provided are those that the inmates need in order to attack their sentences,
directly or collaterally, and in order to challenge the conditions of their
confinement. Impairment of any other litigating capacity is simply one of the
incidental (and perfectly
constitutional) consequences of conviction and
incarceration.
Id. at 355.
However, to
establish injury an inmate need not show that if he had been provided [*972]
with adequate legal facilities he would have prevailed in a
lawsuit. Walters v. Edgar, 163 F.3d
430, 434 (7th Cir. 1998); see also Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir.
1999). Rather, he need only show that he was prevented "from litigating a
nonfrivolous case." Walters, 163 F.3d at 434.
The Seventh Circuit has not
discussed in any detail the standard for
determining non-frivolousness and at what stage in the underlying case it
should be applied. n3 But Walters suggests that the determination should be
made based on the pleadings in the frustrated case(s), applying a standard
similar to that found in 28 U.S.C. § 1915A. Id. at 436 (analyzing the
complaints in several of the underlying cases to determine whether "these
suits were colorable rather than frivolous"). The application of such a
standard eliminates the need for an extensive analysis of the merits of the
underlying case, see id. at 434
(stating that trials within trials should be avoided when possible), and makes
it less likely that a court will consider a merits-based determination in an
underlying case in which prison officials hindered a plaintiff's legal efforts.
n4
Under § 1915A, the court must screen a prisoner's complaint
against a governmental entity or officer to determine whether it is is
frivolous, malicious, or fails to state a claim upon which relief may be
granted. The court must take all well-pleaded allegations as true and, viewing
them in the light most favorable to the plaintiff, dismiss only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of his
claim that would entitle him to relief.
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).
This standard includes both a legal and a factual
component. Gladney v. Pendleton, 302
F.3d 773 (7th Cir. 2002); see also Denton v. Hernandez, 504 U.S. 25, 118 L. Ed.
2d 340, 112 S. Ct. 1728 (1992); Neitzke v. Williams, 490 U.S. 319, 104 L. Ed.
2d 338, 109 S. Ct. 1827 (1989). The legal component requires the court to
determine whether, even if all of the allegations are true, there is some legal basis for the claim. If not, the
case must be dismissed. See Walters, 163 F.3d at 436 (holding that underlying
claim that prisoner wanted to see a
doctor for a kidney problem was frivolous because, without more, such an
allegation does not implicate the Eighth Amendment).
The factual component allows a suit to be dismissed if the facts
are so delusional as to be inherently unbelievable. Id. "No evidentiary
hearing is required in a prisoner's case ... when the factual allegations are
incredible." 302 F.3d at 774 (affirming dismissal where complaint alleged
that unnamed guards at different prisons unlocked plaintiff's cell, allowing
inmates to enter and drug and sexually assault him while he slept); see also
Lee v. Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000) (affirming dismissal where
plaintiff alleged that the United States and China conspired to [*973]
"bio-chemically and bio-technologically infect and invade"
people with a mind reading and mental torture device).
B. Application of Standard
to Facts
Defendants
concede that the legal facilities at the jail were deficient. The question,
therefore, is whether the deficiency impeded plaintiff's ability to litigate a
non-frivolous claim. To answer this question I must evaluate each of the six
cases that plaintiff claims were hindered.
1. Milwaukee County Circuit Court Case No. F-941186
This was
the sexual assault case on which plaintiff was detained in the jail. Plaintiff
cannot show that the jail's lack of legal materials hindered his defense
because at all times during the case he had access to a court-appointed lawyer.
Prison officials must provide inmates with either adequate access to law
libraries or to persons trained in the law.
Bounds, 430 U.S. at 828. But they "need not provide both."
DeMallory v. Cullen, 855 F.2d 442, 446 (7th Cir. 1988).
For a short
time in the case plaintiff chose to represent himself (with the assistance of
stand-by counsel), as was his right. See Faretta v. California, 422 U.S. 806,
816-17, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975) (holding that criminal
defendants have the right of self-representation). However, when a defendant
"has the right to legal help through appointed counsel, and when he
declines that help, other alternative rights, like access to a law library, do
not spring up." United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000);
see also United States ex rel. George v. Lane, 718 F.2d 226, 231 (7th Cir.
1983). Thus, plaintiff was not denied access to the courts in connection with
the sexual assault case, n5 and defendants' motion for summary judgment insofar
as it relates to this case will be granted.
2. Seventh Circuit Case No. 95-3555
This case
involved the appeal of a dismissed § 1983 case plaintiff brought in the Eastern
District of Wisconsin. Plaintiff claims that the appeal was rejected as
untimely and non-compliant with the court's rules because the jail mishandled
and refused to staple his papers. He also claims that he was unable to file a motion to
recall the mandate due to the lack of law books at the jail. However, the
record shows that plaintiff filed a timely
appeal on October 23, 1995, before he was detained at the jail, which was
later dismissed because he failed to file a docketing statement as required by
Circuit Rule 3(c). n6 The court warned plaintiff that if he failed to file a
docketing statement, the appeal would be dismissed, yet plaintiff failed to do
so. n7 Further, the record indicates that plaintiff filed a motion to recall
the mandate, which appears to have been denied because he still had not filed a
docketing statement. [*974] In any
event, plaintiff has failed to present any evidence tending to show that the
lack of legal materials at the jail hindered his appeal; indeed, he does not
address this claim at all in his summary judgment response brief. Therefore,
defendants' motion for summary judgment insofar as it relates to this case will
be granted.
3. Wisconsin Court of Appeals Case No. 96-2468-W
In this
case plaintiff petitioned the Wisconsin Court of Appeals for a supervisory writ
directing the sheriff to allow him visitation at the jail. The court dismissed
the petition because plaintiff failed to show that he had a constitutional
right to visitation and because it was unaware of the basis for the sheriff's decision
to deny visitation.
A supervisory writ "is
considered an extraordinary and drastic remedy that is to be issued only upon
some grievous exigency." Dressler v. Racine Co. Cir. Ct., 163 Wis. 2d 622,
630, 472 N.W.2d 532 (Ct. App. 1991). To obtain the writ a party must show (1) a
clear legal right, (2) a positive and plain duty, (3) substantial damage based
on non-performance of the duty, and (4) no other adequate remedy at law. Law Enforc. Stds. Bd. v. Lyndon Station, 101
Wis. 2d 472, 493-94, 305 N.W.2d 89 (1981).
Under this demanding standard, plaintiff cannot show that his petition
was arguably meritorious.
First,
there is no clear and unqualified constitutional right to jail visitation. See
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-61, 104 L. Ed. 2d
506, 109 S. Ct. 1904 (1989); Block v. Rutherford, 468 U.S. 576, 588, 82 L. Ed.
2d 438, 104 S. Ct. 3227 (1984); see also Froehlich v. Wisconsin Dept. of
Corrections, 196 F.3d 800, 801-02 (7th Cir. 1999); Mayo v. Lane, 867 F.2d 374, 375-76 (7th Cir. 1989). Neither
has plaintiff shown that he had a clear legal right to receive visitors under
state law. See Thompson, 490 U.S. at 462.
Second, plaintiff presents no
authority suggesting that defendants violated a positive and plain legal duty.
Jail administrators possess substantial discretion in making decisions
concerning visitation. See Block, 468 U.S. at 589; Bell v. Wolfish, 441 U.S.
520, 540-41 n.23, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Discretionary acts
may not be reviewed by way of a supervisory writ. Dressler, 163 Wis. 2d at 632.
Plaintiff argues that he was denied visitation as punishment
and, citing Bell and Zarnes v. Rhodes, 64 F.3d 285 (7th Cir. 1995), notes that
pre-trial detainees have a right not to be punished. However, visitation may be
denied to pre-trial detainees based on legitimate security concerns. Block, 468 U.S. at 588. Such concerns are
peculiarly within the province and professional expertise of corrections
officials, and courts must ordinarily defer to their expert judgment. Bell, 441 U.S. at 540-41 n.23. Discretionary
matters such as these are, by their very nature, inappropriate subjects of a
supervisory writ.
In sum, because of the stringent requirements that must be met
to obtain a supervisory writ and the considerable discretion afforded
corrections officials in managing detention facilities, plaintiff lacked even
an arguable entitlement to supervisory relief. Therefore, defendants' motion
for summary judgment insofar as it relates to this case will be granted.
4. Wisconsin Court of Appeals Case No. 96-2604-W
This case
also involved an application for a supervisory writ regarding plaintiff's
visitation rights. The court of appeals
denied the petition on the same grounds that it [*975] denied his
earlier petition. The result here must also be the same as with Case No.
96-2468, and defendants' summary judgment motion relating to this case will be
granted.
5. Western District of Wisconsin Case No. 99-C-445-S
In this §
1983 case plaintiff claimed that he was subjected to unlawful corporal
punishment at the jail by being placed in painfully tight full restraints in a
hot cell. The court dismissed his complaint sua sponte for failure to exhaust
administrative remedies as required by the Prison Litigation Reform Act
("PLRA"). The PLRA provides, in relevant part:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Under
the PLRA, exhaustion of administrative remedies is a prerequisite to bringing a
§ 1983 action.
The event giving rise to plaintiff's claim occurred on August
10, 1996, approximately four months after the PLRA went into effect. n8 Plaintiff filed an inmate
grievance over the incident but was told that it was not a grievable situation.
In order to exhaust his administrative remedies, after his grievance was
rejected, plaintiff had to ask the Grievance Committee for a hearing and, if its response was
unsatisfactory, appeal to the jail administrator. It is undisputed that he did
not do so. However, it is also undisputed that the jail provided plaintiff with
no information about the PLRA and its exhaustion requirement or about the
jail's the grievance procedure.
When the court dismissed plaintiff's § 1983 case for failure to
exhaust it did so without prejudice. However, the practical effect of the
dismissal was to bar reinstatement. This is so because plaintiff filed the suit
after he left the jail and, as a non-inmate, was no longer permitted by jail
rules to use the grievance procedure. Thus, plaintiff could no longer exhaust and the dismissal was therefore, in
effect, with prejudice. See Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002).
Based on
the foregoing facts, three questions are presented. (1) Can interference with a
plaintiff's ability to exhaust administrative remedies give rise to a claim of
denial of access to the courts? (2) If so, did the absence of legal materials
at the jail hinder plaintiff from exhausting? (3) If so, was plaintiff's claim
non-frivolous? I answer all three questions in the affirmative.
a. Interference With a Plaintiff's Ability to Exhaust May Give
Rise to a Claim of Denial of Access to the Courts
"Prisoners
have a constitutional right of access to the courts that, by necessity,
includes the right to pursue the administrative remedies that must be exhausted
before a prisoner can seek relief in court." DeWalt v. Carter, 224 F.3d
607, 618 (7th Cir. 2000); see also Bradley v. Hall, 64 F.3d 1276, 1279 (9th
Cir. 1995) (holding that prisoners' constitutional right of access to the
courts "extends to established prison grievance procedures"). Because
exhaustion under the PLRA is a prerequisite
to the filing of a § 1983 action concerning prison conditions, if prison
officials prevent an inmate from exhausting they impede his access to the
courts just [*976] as surely as if they prevent him from later
filing his complaint. See Moss v. Mormon, No. 99- C-3571, 2000 U.S. Dist. Lexis
3232, at *8 n.1 (N.D. Ill. Mar. 10, 2000) ("Now that exhaustion is a
prerequisite to suit, a prisoner could claim that interference with the
grievance procedure amounted to interference with his access to the courts.").
b. Defendants Interfered With Plaintiff's Ability to
Exhaust
The record
establishes that defendants interfered with plaintiff's ability to exhaust in
three ways. First and most importantly, because of the absence of any legal
materials at the jail, plaintiff was unable to learn about the newly enacted
PLRA and its requirement that he exhaust. It is undisputed that he did not
learn of the law until after he had been transferred out of the jail, when it
was too late to exhaust. His case was then dismissed for failure to comply with
the PLRA's exhaustion requirement. See Lewis, 518 U.S. at 351 ("He might
show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement
which, because of deficiencies in the prison's legal assistance facilities, he
could not have known."). Based on this fact alone I find that plaintiff's
access to the courts was impeded.
Second, even if plaintiff had
known about the PLRA, the absence of materials at the jail about the grievance
procedure itself would have prevented him from knowing how to fully exhaust.
See Hall v. Sheahan, 2001 U.S. Dist. Lexis 1194, No. 2000- C-1649, 2001 WL
111019, at *1-2 (N.D. Ill. Feb. 2, 2001) ("An institution cannot keep
inmates in ignorance of the grievance procedure and then fault them for not
using it. A grievance procedure that is not made known to inmates is not an
'available' administrative remedy.").
Third, when
defendants rejected plaintiff's grievance they advised him that it was "not
a grievable situation," causing him not to pursue the matter further. See
Moss, 2000 U.S. Dist. Lexis 3232, at *18-19 (holding that because prison
officials told plaintiff-prisoner that he could not file a grievance
administrative remedies were not "available" to him, excusing his
noncompliance with the PLRA); see also Lewis, 300 F.3d at 833 (holding that if prison officials refuse to
respond to an inmate's grievances administrative remedies become "unavailable"
to him).
Thus, the undisputed facts
show that defendants hindered plaintiff from exhausting and, therefore, from
complying with the PLRA. This, in turn, led to the dismissal of his suit.
c. Non-Frivolous Claim
In order to
prevail on his denial of access to the courts claim, plaintiff must also show
that this § 1983 action was non-frivolous. Plaintiff alleged that he was
subjected to "corporal punishment" by being placed in painful
physical restraints in a hot cell in retaliation for a complaint he had
recently filed against a guard, and that he was provided with no medical
attention during the ordeal. He averred that restraints were not needed to
protect himself or others.
These allegations are not
incredible and, liberally construed, state a possible violation of the Constitution.
The Due Process Clause of the Fourteenth Amendment prohibits the use of
bodily restraints in a manner that serves to punish a pre-trial detainee.
Youngberg v. Romeo, 457 U.S. 307, 316, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982);
Bell v. Wolfish, 441 U.S. 520, 535-37, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979);
Murphy v. Walker, 51 F.3d 714, 717-18 (7th Cir. [*977] 1995). The use
of bodily restraints constitutes punishment in the constitutional sense if
their use is not rationally related to a legitimate non-punitive government
purpose or they appear excessive in relation to the purpose they allegedly
serve. Wolfish, 441 U.S. at 561.
May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000); see also Zimmerman,
226 F.3d at 573 (reversing § 1915A dismissal where plaintiff had pled an
adequate retaliation claim, and noting that even "otherwise permissible
conduct can become impermissible when done for retaliatory reasons");
DeWalt, 224 F.3d at 618 (stating that "a prison official may not retaliate
against a prisoner because that prisoner filed a grievance").
If they had been ordered to answer, defendants would surely have
offered a lawful explanation for their actions. However, under the standard set
forth above, plaintiff stated a non-frivolous claim.
Plaintiff,
therefore, has shown that he was denied access to the courts in connection with
this § 1983 claim. Defendants concede that legal materials at the jail were
non-existent. Defendants, further, do not dispute that plaintiff was given no
information about the PLRA or the grievance procedure and that he was told that
his complaint was not grievable. Defendants' failures clearly prevented
plaintiff from exhausting and led to the dismissal of the case. No reasonable
fact-finder could find otherwise. Finally, plaintiff's claim was arguably
meritorious. Thus, the record establishes actual injury. See Lewis, 518 U.S. at
353 n.3 ("Depriving someone of an arguable (though not yet established)
claim inflicts actual injury because it deprives him of something of value --
arguable claims are settled, bought and sold."). Defendants have had a
full opportunity to present evidence and arguments on this point. Therefore,
defendants' motion will be denied and partial summary judgment will be granted
to plaintiff on the issue of liability on his access to courts claim insofar as
it arises out of Western District Case No. 99-C-445.
6. Western District Case No. 99-C-447-S
This § 1983 case, in which plaintiff alleged numerous
constitutional deprivations at the jail, was also dismissed sua sponte for
failure to exhaust administrative
remedies. Defendants hindered plaintiff's efforts to pursue this claim
for the same reasons that they hindered his efforts in Case No. 99-C-445.
Plaintiff had no access to information about the PLRA's exhaustion requirement
or the jail's grievance procedure. Thus, he was prevented from timely
exhausting. No reasonable fact-finder could conclude that plaintiff was not
hindered in pursuing this case by the absence of legal materials at the jail.
Therefore, I turn to the question of whether any of the claims in the case were
non-frivolous.
Plaintiff's first claim was that he was denied access to the
courts by being prevented from litigating Cases F-941186, 95-3555, 96-2468-W, and
96-2604-W, which I discussed above. I have already determined that those cases
lacked arguable merit, therefore, plaintiff was not injured by his inability to
litigate this claim.
Plaintiff's second claim was that he was denied due process when
he was placed in Pod 4D of the jail, a "punitive" pod. He claimed
that he was allowed out of his cell on Pod 4D less than the minimum of fourteen
hours per day required by Wis. Admin. Code § DOC 350.07(4). He argued that this
rule created a liberty interest, thus triggering a right to due process. However, in Sandin v. Conner, 515 U.S.
472, 483-84, 132 L. Ed. 2d [*978] 418, 115 S. Ct. 2293 (1995), the Supreme
Court held that liberty interests under the Due Process Clause are not created
by such state prison regulations. n9 See Rapier v. Harris, 172 F.3d 999, 1005
(7th Cir. 1993) (holding that Sandin precluded a pretrial detainee from relying
on a state regulation to establish a liberty interest). Therefore, insofar as
plaintiff's claim was based on § DOC 350.07(4), it was without merit.
However, plaintiff also claimed that he was placed on Pod 4D
solely as punishment. Plaintiff asserted that detainees on Pod 4D were deprived
of various rights and privileges, including visitation, telephone usage, out of
cell time, use of the canteen, and other amenities that were afforded to those
housed in other parts of the jail. These allegations are not inherently
unbelievable.
Further, pre-trial detainees have a constitutional right not to
be punished. The Seventh Circuit has stated that:
a particular measure amounts
to punishment when there is a showing of express intent to punish on the part
of detention facility officials, when the restriction or condition is not
rationally related to a legitimate non-punitive government purpose, or when the
restriction is excessive in light of that purpose. See Bell, 441 U.S. at 538.
Additionally, a restriction or condition may "amount to punishment"
if prison officials are "deliberately indifferent" to a substantial risk
to the detainee's safety. See Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir.
1995) (holding that inmate's allegation that prison guards had shown deliberate
or reckless disregard for her safety
by placing her in a cell with a dangerous inmate was sufficient to state a
claim under the Due Process Clause).
Id.
Had the
court ordered defendants to respond to plaintiff's charges, no doubt they would
have offered a valid reason for defendant's placement and loss of privileges.
Additionally, some of the deprivations of which plaintiff complained may not
have implicated the Constitution, see, e.g., Higgason v. Farley, 83 F.3d 807,
809 (7th Cir. 1996) (housing plaintiff in cellblock where he experienced
frequent lockdowns, restricted access to law library, denial of educational
opportunities, and loss of social and rehabilitative activities did not impose
atypical and significant hardships); Williams v. Ramos, 71 F.3d 1246, 1248-49
(7th Cir. 1995) (holding that segregation unit in which plaintiff was generally locked in cell 24
hours per day, was handcuffed if permitted to leave, and precluded from
activities available to other inmates did not violate Constitution); Sellers v.
Henman, 41 F.3d 1100, 1102 (7th Cir. 1994) (finding that confining prisoners to
cells twenty-three hours per day did not violate the Eighth Amendment absent
other aggravating conditions); Smith v. Shettle, 946 F.2d 1250, 1252 (7th Cir.
1991) (holding that "a prisoner has no natural liberty to mingle with the
general prison population"). Nevertheless, plaintiff's claim that as a
pretrial detainee he should not have been placed on a punitive pod without due
process and/ or solely as punishment was non-frivolous. I cannot conclude
otherwise on the state of the record. Cf. Higgs v. Carver, 286 F.3d 437 (7th
Cir. 2002) (reversing and remanding where record did not show whether pretrial
detainee was placed in [*979] segregation for preventive purposes or as
punishment); see also Sanders v.
Sheahan, 198 F.3d 626, 629 (7th Cir. 1999).
Plaintiff also alleged that as part of his
"punishment" he was denied access to periodicals. "'The
arbitrary denial of access to published materials violates an inmate's first
amendment rights,' as well as a pre-trial detainee's right not to be punished under
the Due Process Clause." Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th
Cir. 1996) (citations omitted) (quoting Martin v. Tyson, 845 F.2d 1451, 1454
(7th Cir. 1988)). This claim too was
non-frivolous.
Plaintiff's third claim was
that he was disciplined on thirteen occasions without due process of law. He
claimed that defendants' actions violated Wis. Admin. Code § DOC 350.15(2),
but, as I have stated, such state regulations do not create a liberty interest
protected by the Due Process Clause. Nevertheless, while disciplinary measures
may be taken against pre-trial detainees who engage in misconduct, some sort of
procedural protection must be provided.
Rapier, 172 F.3d at 1005. Plaintiff alleged that he was not afforded due
process, thus, this claim too was arguably meritorious.
Fourth,
plaintiff claimed that defendants rejected his mail without notifying him. In
Procunier v. Martinez, 416 U.S. 396, 417-18, 40 L. Ed. 2d 224, 94 S. Ct. 1800,
71 Ohio Op. 2d 139 (1974), the Court held:
that the decision to censor or withhold delivery of a particular letter
must be accompanied by minimum procedural safeguards. The interest of prisoners
and their correspondents in uncensored communication by letter, grounded as it
is in the First Amendment, is plainly a "liberty" interest within the
meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment. As
such, it is protected from arbitrary governmental invasion. See Board of
Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry
v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). The
District Court required that an inmate be notified of the rejection of a letter
written by or addressed to him, that the author of that letter be given a
reasonable opportunity to protest that decision, and that complaints be
referred to a prison official other than the person who originally disapproved
the correspondence. These requirements do not appear to be unduly burdensome,
nor do appellants so contend. Accordingly, we affirm the judgment of the
District Court with respect to the Department's regulations relating to
prisoner mail.
While Procunier was partially overruled in Thornburgh v. Abbott,
490 U.S. 401, 413, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989), the Court has
never repudiated its holding that restrictions on prisoner mail must be
accompanied by procedural protections.
Miniken v. Walter, 978 F. Supp. 1356, 1363 (E.D. Wash. 1997) (holding that prison officials violated
inmate's due process rights when they failed to notify him or the publisher of
the rejection of his copy of Prison Legal News). Therefore, this claim was also
non-frivolous. See Antonelli, 81 F.3d at 1432 (reversing dismissal of inmate's
claim of obstruction of mail because court could not on the pleadings determine
"whether the defendants may be able to justify the delays and openings of
outgoing mail").
Fifth,
plaintiff claimed that he had to pay too much for postage on his letters
because the jail had no meter mail service to weigh them. Plaintiff does not
explain how this denied him any constitutional right, instead complaining that
it increased his costs. This claim was frivolous. See Van Poyck v. Singletary,
106 F.3d 1558, 1559-60 [*980] (11th Cir. 1997) (holding that the First Amendment does not require prison
officials to provide indigent prisoners with unlimited free postage for
non-legal mail); Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir. 1974) (same).
Sixth,
plaintiff alleged that pre-trial detainees such as himself were treated worse
than convicted prisoners in a number of ways as, for example, by being given
less time outside their cells. The Equal Protection Clause forbids a state from
arbitrarily treating one group of prisoners worse than another. See Anderson v.
Romero, 72 F.3d 518, 526 (7th Cir. 1995); see also May, 226 F.3d at 882. Prison
officials may differentiate based on legitimate penological concerns, see
French v. Owens, 777 F.2d 1250, 1256 (7th Cir. 1985), such as security, see
Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991), and are accorded
substantial deference in such matters, Bell, 441 U.S. at 547. However, without
knowing what concerns defendants may have had in this instance, I cannot
conclude that equal protection was not violated. See May, 226 F.3d at 882
(affirming denial of motion to dismiss where court could not determine reason
for disparate treatment of pre-trial detainees without a record). This claim
was non-frivolous.
Thus, because some of the
claims in Case No. 99-C-447 were non-frivolous, plaintiff has shown that he was
denied access to the courts. Defendants have had a full opportunity to present
evidence and arguments. Therefore,
plaintiff will receive partial summary judgment on the issue of liability only.
In sum, defendants are entitled to summary judgment in
connection with Cases F-941186, 95-3555, 96-2468-W, and 96-2604-W. With respect
to Case No. 99-C-445, plaintiff will receive partial summary judgment on the issue
of liability only. The same is true with respect to the second, third, fourth,
and sixth claims in Case No. 99-C-447. Summary judgment will be granted to
defendants on the first and fifth claims in Case No. 99-C-447.
C. Damages for Denial of
Access to the Courts
Having
proven a deprivation of his constitutional rights, plaintiff is entitled to
nominal damages. See Sahagian v. Dickey, 827 F.2d 90, 100 (7th Cir. 1987)
(holding that award of nominal damages was appropriate when plaintiff's access
to the courts was denied). Nominal damages are the appropriate means of
vindicating rights whose deprivation has not been shown to have caused actual
damages. Id.; see also Redding v. Fairman, 717 F.2d 1105, 1119 (7th Cir. 1983)
("Nominal damages are not compensation for loss or injury, but rather
recognition of a violation of rights."). Accordingly,
plaintiff will be awarded nominal damages in the amount of $1 for each
of the two cases in which his efforts were hindered. See Sahagian, 827 F.2d at
100.
Plaintiff
has requested compensatory damages. However, in order to obtain them he must
establish the extent and not merely the fact of his injury. See, e.g., Ustrak
v. Fairman, 781 F.2d 573, 579 (7th Cir. 1986) ("Damages, like every other
contested element of a plaintiff's case, must be proved in order to be
recovered; a plaintiff who wants substantial damages can't just ask for
them."). Ordinarily, "if only the fact and not the extent of injury
is proved only nominal damages may be awarded." Id. at 578 (citing Carey
v. Piphus, 435 U.S. 247, 264-67, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978)). In
some instances, "'general damages'" may be recoverable without proof
of specific loss, as where the loss of a constitutional right is
"impossible to monetize." 781 F.2d at 579. However, in the present
case, the loss of the right may be measured more precisely -- by the
[*981] value of the underlying
cases plaintiff lost. Thus, to obtain compensatory damages plaintiff must prove
that he would have won or settled
these cases for a certain amount. n10
Plaintiff
also seeks punitive damages. Punitive damages may be available, even absent
actual loss, if there is a showing of aggravating circumstances or malicious
intent, Endicott v. Huddleston, 644 F.2d 1208, 1217 (7th Cir. 1980), or
"'callous indifference to the plaintiff's rights.'" Sahagian, 827
F.2d at 100 (quoting Perry v. Larson, 794 F.2d 279, 286 (7th Cir. 1986)).
I cannot determine whether
plaintiff would have won his cases and, if so, their value, on the present
record. Neither can I determine whether defendants' conduct was such that
punitive damages are warranted. Defendants must be given the opportunity to
present evidence concerning their actions in the underlying cases and
concerning the absence of legal materials at the jail.
IV. ADDITIONAL MOTIONS
Plaintiff styled his summary judgment response as a motion to
dismiss defendants' motion. I have treated it as a response brief, thus his
motion to dismiss will be denied as moot. Plaintiff also filed a motion
requesting that I not accept defendants' motion until he was provided with
certain exhibits. It appears that he has received such exhibits, and his
submissions reveal that he has been able to respond. Therefore, his motion will
be denied as moot. Finally, plaintiff filed a motion to exceed the page
limitation on his response brief. Civil Local Rule 7.1(f) limits such briefs to
thirty pages. Plaintiff asks that I accept his fifty-five page brief because of
the number of issues involved and because it is hand-written. Plaintiff's
motion will be granted.
Defendants filed a motion
to file a reply brief instanter. Plaintiff opposed the motion but did
not identify any prejudice from the filing. The motion will be granted and the
brief accepted.
V. CONCLUSION
IT IS THEREFORE ORDERED that defendants' motion for summary
judgment (Docket # 79) is GRANTED IN PART AND DENIED IN PART, and that partial
summary judgment is GRANTED to plaintiff, as described herein.
IT IS FURTHER ORDERED that plaintiff's motion requesting that
defendants' motion for summary judgment not be accepted (Docket # 85) and
plaintiff's motion to dismiss (Docket # 91) are DENIED as moot.
IT IS FURTHER ORDERED that plaintiff's motion for leave to
exceed page limits on briefs (Docket # 92) and defendants' motion to file a
reply brief instanter (Docket # 93) are GRANTED.
IT IS FURTHER ORDERED that a telephone conference is set for
October 18, 2002 at 11:30 a.m., at which time further scheduling of this case
will take place.
Dated this at Milwaukee, Wisconsin this 30 day of September,
2002.
LYNN ADELMAN
FOOTNOTES:
n1 The absence of legal materials at the
jail apparently came to light as a result of the present case. The County has
since installed a computer in a jail visiting room which provides detainees
with access to Westlaw.
n2 Additional facts will be set forth as
necessary.
n3 In most denial of access to courts claims,
the underlying cases will have been dismissed for procedural reasons or on the
pleadings or may have never been filed at all. In the present case all of the
underlying cases but one were dismissed on procedural grounds. However, there
may be occasions where the underlying case will have been dismissed on the
merits.
n4 Courts have long held that the result of
a proceeding is fundamentally unreliable when there has been a breakdown in the
adversarial process that our system counts on to produce just results. Strickland v. Washington, 466 U.S. 668, 698,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); United States v. Cronic, 466 U.S.
648, 659, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). But cf. Nance v. Vieregge,
147 F.3d 589, 591 (7th Cir. 1998) (stating that rule of Heck v. Humphrey may
bar damages for denial of access to the courts).
n5 Because plaintiff has not shown that he
was denied access to legal assistance I need not address the question of actual
injury. Neither must I decide whether plaintiff's claim is barred by the rule
of Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994).
See Nance, 147 F.3d at 591.
n6 Rule 3(c) provides that an appellant
must file a docketing statement with the clerk of the district court at the
time of the filing of the notice of appeal or with the clerk of the court of
appeals within seven days of the filing of the notice of appeal. Failure to
file the statement within twenty-eight days is treated as an abandonment of the
appeal. The clerk of the court of appeals reminds the litigants of these
provisions when the appeal is docketed.
n7 Because plaintiff filed this appeal
before he was confined at the jail, the jail's lack of law books did not
prevent him from learning of the requirements of Circuit Rule 3(c) at the time
that he appealed.
n8 The effective date of the PLRA was April
26, 2002. Lewis v. Washington, 300 F.3d
829, 832 (7th Cir. 2002).
n9 In so holding, the Court overruled
Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983),
in which the Court had held that liberty interests may be created by state
regulations containing mandatory language. Instead, the Court held that the
proper inquiry was whether the challenged practice "imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life." Sandin, 515 U.S. at 484.
n10 In Walters, the court indicated that
trying "a case within a case" should be avoided where possible. 163 F.3d at 434. However, the issue in
Walters was injury for "the threshold issue of standing." Id.; see
also Hoard, 175 F.3d at 534 (stating that plaintiff need not show validity of
claim as a "precondition to obtaining damages"). Here, plaintiff has
established injury for purposes of standing. The question now is whether he can
establish the extent of his injury for purposes of being compensated.