Thomas Powers v. Nedra Chandler
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Kenneth F. Ripple, Circuit Judge; Michael S. Kanne, Circuit Judge and John Daniel Tinder, Circuit Judge. [6567085-1] [6567085] [13-2361]
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 11, 2014*
Decided April 11, 2014
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐2361
THOMAS POWERS,
Plaintiff‐Appellant,
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
v.
No. 10 C 50097
NEDRA CHANDLER,
Defendant‐Appellee.
Frederick J. Kapala,
Judge.
O R D E R
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
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Thomas Powers, a former inmate at Dixon Correctional Center, appeals the grant
of summary judgment for the prison’s warden in this civil‐rights suit on the ground that
he failed to exhaust administrative remedies. We affirm.
Powers, who is currently housed at the Rushville Treatment and Detention
Facility, alleged that during his stay at Dixon Nedra Chandler, Dixon’s warden,
retaliated against him for filing grievances and an earlier suit (over the accommodation
of a religious‐based diet) by denying him good‐time credit, a preferred prison job, “the
right to participate in schooling,” and the opportunity to submit new grievances.
Powers also alleged that Chandler (who is black) discriminated against him because of
his race (white) by sabotaging settlement negotiations in that earlier suit. (Powers also
sued two prison doctors for deliberate indifference, but those claims were dismissed
and the doctors are not parties to this appeal.) When Powers expressed concern that he
would not be able on his own to pursue discovery effectively, District Judge Reinhard
recruited counsel for him.
Warden Chandler then moved for summary judgment on the ground that
Powers failed to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a). Brian
Fairchild, the chairperson of the Office of Inmate Issues for the Illinois Department of
Corrections, explained in an affidavit that, to exhaust administrative remedies,
prisoners must appeal to the Administrative Review Board when grievances are denied.
See 20 ILL. ADMIN. CODE § 504.850(a). Fairchild, whose job includes reviewing and
responding to inmate grievances, reported that he conducted a thorough search of the
ARB’s records and found no appeals filed by Powers about the denial of good‐time
credit or schooling, or about barriers to filing grievances. When Powers provided no
contrary evidence, Judge Reinhard granted summary judgment on those unexhausted
retaliation claims.
Powers amended his complaint to add to the unresolved claim about the denial
of his preferred job new allegations of retaliation. In that amended complaint, he
asserted that, as a result of his grievances and earlier lawsuit, he also was denied
medical treatment and his preferred cell placement and was transferred from Dixon to
Rushville. The parties then pursued discovery for several months.
More than half a year after discovery closed (and more than a year after
Chandler obtained partial summary judgment), Powers moved to reinstate the
dismissed claims against Chandler, insisting that he had in fact exhausted his
administrative remedies. He submitted copies of prison grievances (that he had since
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obtained through discovery in an unrelated state‐court case) in which he specifically
named Chandler; Powers did not, however, provide any documentation that he
appealed any rulings to the ARB. Judge Reinhard denied Powers’s motion, concluding
that it was “too late . . . at this point in the litigation” to resurrect those earlier claims.
Chandler then moved for summary judgment on the remaining retaliation and
discrimination claims, and District Judge Kapala, to whom the case had been
reassigned, granted the motion on the merits. Judge Kapala concluded, first, that
Powers provided no evidence that the alleged punishments (transfer and denial of his
preferred job, cell placement, and medical treatment) were motivated by retaliation for
his filing grievances or the suit about his religious diet; the alleged retaliatory acts, the
judge explained, occurred months after the most recent protected filings. Judge Kapala
also ruled that Powers failed to show that Chandler was in any way involved in
settlement negotiations in his earlier suit. (Only the Illinois Attorney General, the judge
noted, has the legal authority to settle suits against the state. See 5 ILCS 350/2(a).)
On appeal Powers generally asserts that Judge Kapala should not have granted
summary judgment against him on his retaliation and discrimination claims and faults
the judge for overlooking (among other documents) his and his wife’s affidavits
detailing a “pervasive pattern” of “retaliatory conduct.” But Powers has not suggested
how any of the purportedly overlooked documents contradict Judge Kapala’s findings
about the lengthy delay between the protected filings and the alleged retaliatory acts.
Speculative and conclusory claims are not enough to establish a genuine issue of
material fact for trial. See Porter v. City of Chicago, 700 F.3d 944, 956 (7th Cir. 2012); Payne
v. Pauley, 337 F.3d 767, 772–73 (7th Cir. 2003).
Powers also insists that Judge Reinhard was wrong to refuse to reinstate his
unexhausted claims after he eventually obtained copies of grievances he had filed
against Chandler. But Judge Reinhard was right to dismiss those claims on exhaustion
grounds because Powers did not appeal the denial of those grievances to the ARB.
See 20 ILL. ADMIN. CODE § 504.850; Cannon v. Washington, 418 F.3d 714, 718 (7th Cir.
2005). Because Powers never submitted any evidence that he appealed the grievances,
he supplied no basis to have the claims reinstated.
Powers also argues that his appointed trial attorney’s lack of diligence during
discovery prevented him from collecting evidence necessary to prove his case (e.g.,
proof that the prison lost grievances). But there is no constitutional right to effective
assistance of counsel in a civil case; Powers’s only remedy would be a separate
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malpractice suit. Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001); Bell v. Eastman
Kodak Co., 214 F.3d 798, 802 (7th Cir. 2000).
AFFIRMED.
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