Jones v. Buchanan et al
Filing
201
ORDER entered by Judge Sue E. Myerscough on 3/18/2013. The supplemental motion for summary judgment filed by Defendants Ashby, et al, is granted in part and denied in part, d/e 158 . Defendants Redshaw, Sievers, Chute and Hapke are terminated. A Final Pretrial Conference is set for 5/14/2013 at 1:30 PM by video conference from Springfield (court to initiate conference) before Judge Sue E. Myerscough. Defense counsel shall appear in person. The parties are directed to submit an agreed, proposed final pretrial order at least seven days before the final pretrial conference. (Attachments: # 1 Consent to Magistrate forms)(MAS, ilcd)
E-FILED
Monday, 18 March, 2013 03:42:49 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
BRIAN JONES,
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Plaintiff,
v.
NURSE L. BUCHANAN, et al.
Defendants.
No. 08-CV-3199
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff pursues a variety of claims arising from his
incarceration in Western Illinois Correctional Center. On April 19,
2012, the Court granted summary judgment for 15 Defendants and
directed the remaining Defendants to file a supplement summary
judgment motion.
Before the Court is Defendants' supplemental motion for
summary judgment. The motion will be granted in part and denied
in part, leaving fourteen Defendants on claims arising from several
unrelated occurrences. Though the occurrences are unrelated, the
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Court believes that the most efficient way of resolving Plaintiff's
remaining claims is through one jury trial.
ANALYSIS
The Court presumes familiarity with its prior order on
summary judgment (d/e 149).
I. Claims against Nurses Ring, Thornton, Ashcraft, and
Hazelrigg
The claims against Nurses Ring, Thornton, Ashcraft, and
Hazelrigg arise from an alleged denial of medication on May 24,
2007, and January 30, 2008. Plaintiff also claims that the Nurse
Defendants retaliated against Plaintiff for filing grievances.
The Nurse Defendants did not file a supplemental motion for
summary judgment. Accordingly, these claims will be tried to a
jury.
II.
Denial of Access to Library Restroom
Plaintiff avers that, as a result of "numerous operations on
[his] lower bowels" he frequently needs immediate access to a
restroom. He avers that he told Defendants Skiles, Olson, and
Hamilton of this need, but that they refused to allow Plaintiff to use
the restroom near the prison law library. (Pl.'s Aff. d/e 186, p. 7.)
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Plaintiff avers that he could not avoid urinating and defecating on
himself "a few times" because he was not allowed to use the
restroom by the library.
Plaintiff's claim arises under the Eighth Amendment
(deliberate indifference to serious medical needs) and/or the
Rehabilitation Act (failure to accommodate Plaintiff's disability to
enable him to access library on the same basis as nondisabled
inmates). See Jaros v. IDOC, et al., 684 F.3d 667 (7th Cir.
2012)(inmate state RA claim where refusal to accommodate his
disability kept the inmate from accessing meals and showers on the
same basis as nondisabled inmates).
Defendant Skiles does not remember Plaintiff. Defendant
Olson remembers Plaintiff but does not recall Plaintiff urinating or
defecating on himself. According to Defendants, a practice was in
place in 2007-08 which prohibited inmates from using the library
restroom while visiting the library. Defendants assert that this rule
was implemented "after it was discovered that inmates were
abusing their restroom privileges and disturbing class that were
ongoing throughout the building." (Olson Aff., para. 2.) Under this
rule, an inmate leaving the library to use the restroom could not
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return to the library that day, but could file a request to visit the
library another day.
The Court concludes that disputed issues of material fact
remain regarding whether Defendants were aware of Plaintiff's
medical need to use the bathroom on a frequent and emergent
basis. A disputed question of material fact also exists regarding
whether Defendants could have made an exception to the bathroom
policy for Plaintiff. Summary judgment will be denied on this claim.
III.
March 28, 2007 Disciplinary Report
Defendant Cowick wrote Plaintiff a disciplinary report on
March 28, 2007 for Plaintiff's alleged threats to staff based on
statements Plaintiff made in a grievance Plaintiff filed. According to
Plaintiff, his grievance stated only that if his grievances were not
processed, then he would be forced to file a lawsuit because he had
a right to exhaust his administrative remedies. Plaintiff was found
guilty, but the guilty finding was expunged by the Administrative
Review Board.
Threatening or insolent remarks in a grievance are not
protected by the First Amendment. Hale v. Scott, 371 F.3d 917 (7th
Cir. 2004)(inmate's remark in grievance about employee's alleged
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sexual misconduct was libelous). However, a reasonable juror
could find that Plaintiff's statements in this grievance were neither
threatening nor insolent. Plaintiff had a First Amendment right to
grieve the conditions of his confinement. Watkins v. Kasper, 599
F.3d 791, 798 (7th Cir.2010)(“A prisoner has a First Amendment
right to make grievances about conditions of confinement.”)
Accordingly, this claim remains in the case.
IV.
Confidential Phone Conferences with Criminal Attorney
Plaintiff claims that, on about three occasions, Defendants
Redshaw and Chute refused to leave the room while Plaintiff was
speaking on the phone to Plaintiff's criminal lawyer.
Plaintiff has a constitutional right to confidential
communications with his attorney. Denius v. Dunlap, 209 F.3d
944, 953-55 (7th Cir. 2000). However, Defendant Chute's affidavit
demonstrates that Plaintiff's rights were not violated. A procedure
exists for inmates to place confidential phone calls to their
attorneys:
If an inmate wants to hold an unmonitored conversation
with his attorney, he has to place his attorney's name
and number on his regular call list. Once the attorney is
on this list, the inmate may make unmonitored, collect
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calls to his attorney from the inmate phone located in
each housing unit.
(Chute Aff., para. 2.) Outside of this procedure, an attorney
may request the prison to place a collect call. During the
relevant times, collect calls requested by an attorney were
made from the clinical services office where an inmate could
not be left unattended because of equipment in the room.
(Chute Aff., para. 3). This changed in September 2009.
Collect calls requested by an attorney are now made from a
Lieutenant's office with a guard standing outside the office.
(Chute Aff., para. 4.).
Defendants did not violate Plaintiff's constitutional rights
by remaining in the clinic services room during Plaintiff's
phone conference in order to ensure protection of the
equipment. The prison has a legitimate security interest in
protecting its equipment. See Czapiewski v. Bartow, 2008 WL
5262801 (W.D. Wis., Judge Crabb)(applying Turner reasonable
relation to legitimate interest test to right to communicate
confidentially to attorney). Additionally, Plaintiff had an
alternative route for having a confidential call with his
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attorney—he could have followed the procedures in place. In
any event, a few sporadic instances where Plaintiff was unable
to converse confidentially with his attorney do not violate the
Constitution.
VII. First Amendment Retaliation Claim against Defendant
Jennings
Defendant Jennings wrote Plaintiff a disciplinary report for
gang activity based on Plaintiff's correspondence to Plaintiff's
brother. According to Jennings' affidavit, Plaintiff was a "validated
member of a security threat group" when Plaintiff attempted to send
an obituary of a gang member to Plaintiff's brother, who was
incarcerated in another prison. (Aff. Jennings, para. 2.) Jennings
also avers that Plaintiff included in his letter a message from
another known gang member to Plaintiff's brother. Id. Jennings
avers that the ticket "was not written in retaliation for any action
taken by inmate Jones. A ticket would have been written in this
situation regardless of the inmate." (Aff. Jennings, para. 4.)
Plaintiff counters that Plaintiff had been permitted to possess
the obituary for months and that Plaintiff had permission to
correspond with his brother. Plaintiff asserts that he was merely
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informing his brother that a family friend had passed away. He
argues that Defendant Jennings knew that Plaintiff was not sending
gang messages, and that Jennings wrote the ticket to retaliate
against Plaintiff because of Plaintiff's prior grievances and because
Plaintiff had overturned Jennings' prior attempts to keep Plaintiff in
segregation.
The Court concludes that determining Jennings' motive for
writing the disciplinary report turns largely on Jennings' credibility
and the reasonableness of Jennings' conclusion that the
correspondence was gang activity. Accordingly, summary judgment
must be denied as to Defendant Jennings.
However, summary judgment will be granted to the
adjustment committee members who relied on the testimony from
the Internal Affairs officers to find Plaintiff guilty on Jennings'
disciplinary ticket. Plaintiff does not dispute that the prison has a
legitimate security interest in stopping gang activity. The
committee members do not violate Plaintiff's First Amendment
rights by relying on the expertise and testimony of internal affairs
officers regarding whether Plaintiff's correspondence could be
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reasonably construed as gang activity. Summary judgment will be
granted to Defendants Ashby, Davis, and Walls on this claim.
VIII. Discrimination claims against Defendants Sidwell,
Cosgrove, Gilson, and Walls.
Defendants Sidwell and Cosgrove allegedly pulled Plaintiff
from the cafeteria line on several occasions because Plaintiff had his
hair styled in cornrows. The Court construes this claim as an equal
protection claim that Sidwell and Cosgrove singled out Plaintiff
because of Plaintiff's race.
Neither Defendants Sidwell nor Cosgrove remembers Plaintiff.
They aver that they have never pulled an inmate from the chow line
based on race or cornrows. Sidwell avers that he does pull an
inmate from the chow line if a gang sign (or suspected gang sign) is
braided into the hair, to obtain the inmate's name and number,
which Sidwell submits to Internal Affairs. Inmates are not allowed
to display gang signs for safety and security reasons. (Sidwell Aff.,
paras. 3-6.) Cosgrove avers that he has pulled inmates out of line if
the inmate does not have his identification card or to conduct
random searches. (Cosgrove Aff., paras. 4-7.)
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Plaintiff asserts that his hair was not designed with gang signs
and that he was never written a ticket for displaying gang signs.
Plaintiff testified in his deposition that Sidwell and Cosgrove made
racist remarks such as "you n----- going to learn not to come into
my chow line with braids." (Plaintiff's Dep. p. 7.) Racist comments
alone do not violate the Constitution, but may be evidence of racial
motivation.
The Court concludes that deciding this claim requires a
credibility determination, which only the jury may do. Summary
judgment is denied on this claim as to Defendants Sidwell and
Cosgrove. Summary judgment is also denied to Defendants Walls
and Gilson for allegedly maintaining a policy banning black inmates
from attending meals with cornrows in their hair.
IX. Defendant Pritchard
Plaintiff alleges that Defendant Pritchard pushed Plaintiff into
a steel bunk, causing a knot on Plaintiff's forehead. This incident
apparently occurred when Plaintiff was escorted from the cafeteria
to his cell after Plaintiff disobeyed a direct order.
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Defendant Pritchard avers that he does not remember Plaintiff,
and that Pritchard would not have escorted Plaintiff from the
cafeteria. (Aff. Pritchard, para. d/e 159-1.)
Resolving whether Defendant Pritchard escorted Plaintiff or
used excessive force against Plaintiff requires a credibility
determination. Accordingly, summary judgment must be denied on
this claim.
X.
Opening of Legal Mail from Criminal Defense Attorney
Plaintiff contends that Defendants Seivers and Hapke opened
legal mail from Plaintiff's criminal defense lawyer on at least three
occasions.
Prison procedures are in place to protect the confidentiality of
legal mail to inmates. First the legal mail is separated from the
regular mail. Then the legal mail is delivered to the inmate, who
opens the mail in the officer's presence. If legal mail is
inadvertently opened outside an inmate's presence, "the letter is
resealed and stamped 'Opened in error, contents not examined.'"
(Affs. Hapke & Seivers, paras. 2, 4.)
Plaintiff contends that Hapke and Seivers intentionally opened
legal mail outside his presence "numerous times," and that they
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destroyed the envelopes and contraband which the purported to
find inside the envelopes. Neither Hapke nor Seivers has any
recollection of Plaintiff.
A reasonable juror could not find for Plaintiff on this claim.
First, Plaintiff has not shown that the letters were in fact
confidential legal mail from his attorney. The letters are not in the
record. Merely labeling correspondence as confidential legal mail
does not make it so. Further, Plaintiff is not clear how many times
his alleged confidential legal mail was opened. Isolated incidents of
opening a prisoner’s confidential legal mail outside of his presence
generally do not violate the Constitution absent a detrimental effect
on the prisoner’s “access to justice.” Guarjardo-Palma v.
Martinson, 622 F.3d 801, 805 (7th Cir. 2010). Plaintiff has no
evidence that his criminal proceedings were hindered in any way by
these alleged instances of opening his legal mail. Id. Summary
judgment must be granted to Defendants on this claim.
XI. Trial Logistics
The claims surviving summary judgment are against different
Defendants and arise from unrelated occurrences. See Fed. R. Civ.
P. 20 (permissive joinder). However, having six separate trials
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makes little sense. The most efficient and cost-effective manner to
handle the remaining claims, in the Court's opinion, is to have one
trial, taking all the evidence on each claim seriatim. For example,
Plaintiff will first present all of his evidence on his claims against
the Nurse Defendants, and Defendants will follow with all their
evidence in defense of the claims against the Nurses. Once the
parties have presented all their evidence on Plaintiff's claims
against the Nurses, the parties will move on to the library restroom
claim, and so on until each claim is addressed.
IT IS THEREFORE ORDERED:
1. The supplemental motion for summary judgment filed by
Defendants Ashby, et al., is granted in part and denied in part
(d/e 158) as explained below.
2. Summary judgment is granted to Defendants on Plaintiff's
claim arising from alleged violations of his right to speak to his
attorney on the phone confidentially. Defendants Chute and
Redshaw are dismissed because they are implicated only in
this claim.
3. Summary judgment is granted to Defendants Ashby, Davis,
and Walls on Plaintiff's First Amendment claim arising from
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Plaintiff's punishment for his correspondence to Plaintiff's
brother.
4. Summary judgment is granted to Defendants on Plaintiff's
claim of opening of Plaintiff's confidential legal mail.
Defendants Hapke and Seivers are dismissed because they are
implicated only in this claim.
5. The following claims remain for trial:
a. Claims against Defendants Ring, Thornton, Ashcraft, and
Hazelrigg for: 1) deliberate indifference to Plaintiff's
serious need for medicine on May 24, 2007 and January
30, 2008; and, 2) retaliation against Plaintiff for filing
grievances.
b. Eighth Amendment and Rehabilitation Act claims against
Defendants Olson, Hamilton, Skiles, Gilson, and Walls
arising from the refusal to allow Plaintiff to access the
restroom near the law library. The Court construes the
Rehabilitation Act claim against these Defendants in
their official capacities.
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c. Equal protection claim against Defendants Sidwell and
Cosgrove for removing Plaintiff from the cafeteria line
because of Plaintiff's race.
d. Equal protection claim against Defendants Walls and
Gilson that Western Illinois Correctional Center had or
has a policy banning black inmates with hair styled in
cornrows from attending meals.
e. Eighth Amendment excessive force claims against
Defendant Brooks and Defendant Pritchard.
f. First Amendment retaliation claim against Defendant
Jennings for writing Plaintiff a disciplinary report for
gang activity in retaliation for Plaintiff's grievances and
challenges to adverse events.
6. A final pretrial conference is scheduled for May 14, 2013 at
1:30 p.m. Plaintiff shall appear by video conference. Defense
counsel shall appear in person. The parties are directed to
submit an agreed, proposed final pretrial order at least seven
days before the final pretrial conference. Defendants bear the
responsibility of preparing the proposed final pretrial order
and mailing the proposed order to Plaintiff to allow Plaintiff
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sufficient time to review the order before the final pretrial
conference. See CD-IL Local Rule 16.3.
7. The proposed final pretrial order must include the names of all
witnesses to be called at the trial and must indicate whether
the witness will appear in person or by video conference.
Nonparty witnesses who are detained or incarcerated will
testify by video. Other nonparty witnesses may appear by
video at the Court's discretion. The proposed pretrial order
must also include the names and addresses of any witnesses
for whom trial subpoenas are sought. The parties are
responsible for timely obtaining and serving any necessary
subpoenas, as well as providing the necessary witness and
mileage fees. Fed. R. Civ. P. 45.
8. The exhibit section of the proposed final pretrial order must
list by number all the exhibits a party may seek to introduce
at the trial and give a short description of the exhibit. (For
example, “Plaintiff’s Ex. 1: 11/10/12 health care request”).
The parties must prepare their own exhibits for introduction at
the trial, marking the exhibits with the same number that is
on the list submitted to the Court. Exhibits that are
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introduced at trial will be kept in the Court record. Therefore,
the party offering the exhibit is responsible for making a copy
of the exhibit to keep for the party’s own records. Additionally,
the parties are directed to exchange copies of their marked
exhibits at least ten days before the final pretrial conference.
If a party intends to object to the introduction of a proposed
exhibit, that party must provide the Court a copy of the exhibit
and an explanation of the grounds for objection at least five
business days before the final pretrial conference. Objections
will be argued orally at the final pretrial conference.
9. The Court will circulate proposed jury instructions, a
statement of the case, and proposed voir dire questions prior
to the final pretrial conference, for discussion at the final
pretrial conference. Proposed additional/alternate
instructions and voir dire questions must be filed five business
days before the final pretrial conference. The jury
instructions, statement of the case, and voir dire questions
will be finalized at the final pretrial conference, to the extent
possible.
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10. Motions in limine are due at least five business days before
the final pretrial conference, to be argued orally at the final
pretrial conference.
11.
The date for the jury selection and the jury trial will be
determined at the final pretrial conference. In light of the
Court’s busy trial calendar, the parties are reminded that
they may consent to a trial before Magistrate Judge
Cudmore. 28 U.S.C. § 636(c)(1)(parties may consent to full
time Magistrate Judge conducting “any or all proceedings
in a jury or nonjury civil matter). Consent is completely
voluntary: the parties are “free to withhold consent without
adverse substantive consequences.” 28 U.S.C. § 636(c)(3).
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1. Issue a video writ to secure Plaintiff's appearance at
the final pretrial conference;
2. Terminate Defendants Chute, Redshaw, Hapke and
Seivers.
ENTER:
March 18, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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