Powers v. Clayton et al

Filing 63

OPINION: Plaintiff's motion for the appointment of counsel is denied 60 . Plaintiff's motion to strike Defendants' motion for summary judgment is denied 51 . Defendant's motion for summary judgment is granted in part and den ied in part 48 . The jury selection and trial are scheduled for July 11-14, 2017, beginning at 9:00 a.m. each day. The final pretrial conference is scheduled for June 12, 2017 at 10:00 a.m. The parties may request a settlement conference with the Magistrate Judge if they believe another try at settlement could be productive. The clerk is directed to issue a personal writ to secure Plaintiff's presence at the jury selection and trial. The clerk is directed to issue a video writ to secure Plaintiff's presence at the final pretrial conference. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 1/27/2017. (GL, ilcd)

E-FILED

Friday, 27 January, 2017 09:06:25 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
THOMAS POWERS,
Plaintiff,
v.
JAMES CHRISTOPHER CLAYTON,
JOSEPH HANKINS,
GREGG SCOTT, and
FORREST J. ASHBY,
Defendants.

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14-CV-3306

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Facility pursuant to the Illinois Sexually
Violent Persons Act. He pursues constitutional claims for denial of
access to the court and retaliation for the exercise of his First
Amendment right to pursue lawsuits and file grievances. One of
Plaintiff’s other pending cases in this District, 13-cv-3097, was
consolidated with this case because the claims are similar.
Before the Court is Defendants’ motion for summary judgment.
For the reasons explained below, summary judgment is granted on

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Plaintiff’s claim for denial of access to the courts. Summary
judgment is denied on Plaintiff’s retaliation claims.
Summary Judgment Standard
"The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). “In a § 1983 case, the plaintiff bears the burden of proof on
the constitutional deprivation that underlies the claim, and thus
must come forward with sufficient evidence to create genuine issues
of material fact to avoid summary judgment.” McAllister v. Price,
615 F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, the evidence is viewed in the
light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
material fact exists when a reasonable juror could find for the
nonmovant. Id.
Discussion
I. Summary judgment is granted to Defendants on
Plaintiff’s claim for denial of access to the courts. Plaintiff has
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not shown how the alleged shortcomings of the legal resources
at Rushville impeded Plaintiff’s legal pursuits.
The constitutional right to access the court is not “an abstract
freestanding right to a law library or legal assistance.” Lewis v.
Casey, 518 U.S. 343, 351 (1996). The right to access the courts
means the right to pursue nonfrivolous claims, not the right to
various legal resources. See Ortloff v. United States, 335 F.3d 652,
656 (7th Cir. 2003)(“[A] right to access-to-courts claim exists only if
a prisoner is unreasonably prevented from presenting legitimate
grievances to a court; various resources, documents, and supplies
merely provide the instruments for reasonable access and are not
protected in and of themselves.”)(abrogated on other grounds as
recognized in Parrott v. U.S., 536 F.3d 629, 635 (7th Cir. 2008)).
Thus, an access claim is viable only if a plaintiff suffered an “actual
injury” from the inability to pursue a nonfrivolous claim. Lewis, 518
U.S. at 351; In re Maxy, 674 F.3d 658, 660 (7th Cir. 2012); May v.
Sheahan, 226 F.3d 876, 883 (7th Cir. 2000). There must be a
“connection between the alleged denial of access to legal materials
and an inability to pursue a legitimate challenge to a conviction,
sentence, or prison conditions.” Ortiz v. Downey, 561 F.3d 664, 671
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(7th Cir.2009) (internal quotation and citation omitted). “Without a
tenable argument to pursue . . . , [a plaintiff] cannot show actual
prejudice resulting from denial of access to the law library.” McCree
v. Grissom, 657 F.3d 623, 624 (7th Cir. 2011).
Plaintiff identifies six cases in which he claims he suffered
injury because of Rushville’s lack of legal resources. (Pl.’s Aff. paras.
82-87.)
One of the six cases identified by Plaintiff is his state civil
detention proceedings (12MR419, Winnebago County). Plaintiff has
a statutory right to appointed in counsel in that case. 725 ILCS
207/25(c)(1). An individual’s right to access the courts is satisfied
by the appointment of counsel. U.S. v. Sykes, 614 F.3d 303, 310
(7th Cir. 2010). That Plaintiff has chosen to proceed pro se in his
detention proceeding does not require Defendants to supply the legal
resources for Plaintiff to do so. See U.S. v. Sykes, 614 F.3d 303, 311
(2010)(“‘The rule is that [the 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.’”)(quoting United States v. Byrd, 208 F.3d 592, 593 (7th Cir.
2000)(brackets in Sykes).
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Plaintiff does not explain how the alleged lack of resources is
connected to the other five cases’ outcomes.
For example, in Powers v. Chandler, 10-cv-50097 (N.D. Ill.),
summary judgment was granted to Defendants in various orders
and affirmed on appeal. Plaintiff contends that Defendants
Mesrobian and Carter were dismissed “based on a discovery
violation,” but the docket in that case shows that Defendant Carter
was dismissed because Plaintiff failed to exhaust his administrative
remedies when he did not file a timely appeal to the Administrative
Review Board. (6/22/11 order, 10-cv-50097.) Defendant Mesrobian
(who was deceased) was dismissed when Plaintiff filed an amended
complaint which did not include Mesrobian as a Defendant.
(3/12/12 Amended Compl., 10-cv-50097.) Plaintiff does not explain
how the alleged lack of legal resources at Rushville had anything to
do with the outcome of this case.
Similarly, Plaintiff asserts that he suffered legal injury in a case
called Powers v. Anglin, which Plaintiff described in his deposition as
a mandamus action in the Illinois Supreme Court regarding

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Plaintiff’s mandatory supervised release. (Pl.’s Dep. p. 17-18.)1
Plaintiff does not explain how the dismissal of that case was caused
by his lack of legal resources. Powers v. Godinez, another state
circuit court mandamus action filed by Plaintiff (Pl.’s Dep. 22) was
also dismissed, but Plaintiff does not explain how that denial had
anything to do with the lack of legal resources. 2012-MR-322
(Sangamon County)(4/20/12 Order dismissing case as “frivolous
and without merit.”). Plaintiff describes the case Powers v. Powers
as an order of protection case filed by Plaintiff’s ex-wife which was
eventually dismissed. (Pl.’s Dep. 24-27.) Plaintiff does not explain
how the dismissal of a case filed against him caused him any injury.
Lastly, Plaintiff identifies an Illinois Court of Claims case which was
dismissed due to Plaintiff’s failure to exhaust his available remedies.
(Pl.’s Dep. 29-30.) Plaintiff seems to assert that he did not know he
had to exhaust because Plaintiff cannot access Illinois Court of
Claims cases in Rushville. However, the exhaustion requirement is
in the Illinois Statutes, 705 ILCS 505/25, which were accessible

The transcript states “Powers v. England,” but the parties appear to be referring to “Powers v.
Anglin.” The Court has included the case numbers of the cases referred to by Plaintiff only
where the Court was able to find the docket sheet online.
1

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through the Westlaw CD-ROM provided at Rushville. (Shelton Aff.
para. 4.)
In short, Plaintiff has not explained how the alleged
inadequacies of the legal resources at the facility detrimentally
affected any of his cases. See Childress v. Scott, 2017 WL 213176
(7th Cir. 2017)(not reported in Federal Reporter)(affirming summary
judgment on claim of inadequate law library and not providing law
clerks at Rushville where the plaintiff “did not demonstrate that the
prison library's shortcomings hindered or prevented him from
pursuing a potentially meritorious claim.”)
II. Summary judgment is denied on Plaintiff’s retaliation
claims.
Defendants argue that res judicata bars the retaliation claims
against Defendant Clayton, citing Judge Bruce’s grant of summary
judgment to the defendants in Powers v. Clayton, et al., 13-cv-3057
(C.D. Ill.), another retaliation case.
The claims in 13-cv-3057 arose from Clayton’s interview of
Plaintiff on December 16, 2012, a behavior report written on
January 3, 2013 against Plaintiff for providing false information on
staff and a January 23, 2013 search of Plaintiff by Clayton.
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(6/22/15 Order, 13-cv-3057, d/e 87.) Res judicata bars Plaintiff
from pursuing claims arising from these incidents.
However, Judge Bruce specifically stated that he was not ruling
on other incidents Plaintiff had brought up in his deposition. Id. pp.
5-6. Defendants are correct that res judicata also bars claims that
could have been brought in a prior action, but the claims must arise
from the same set of occurrences. Walczak v. Chicago Bd of Educ.,
739 F.3d 1013, 1014 (7th Cir. 2014)(identity of cause of action is
whether claims arise from “single group of operative facts, regardless
of whether they assert different theories of relief.”)(quoted cites
omitted). Here, though the claim is retaliation just like in many of
Plaintiff’s other cases, the alleged retaliatory acts are different from
those in 13-cv-3057. Res judicata does not bar litigation of
incidents which were not the subject of 13-cv-3057.
Plaintiff’s retaliation claim survives summary judgment if he
has evidence that “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter
First Amendment activity in the future; and (3) the First Amendment
activity was ‘at least a motivating factor’ in the Defendants' decision
to take the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866
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(7th Cir. 2012)(quoted cite omitted). If Plaintiff makes this prima
facie showing, Defendants must show that the adverse action would
have occurred anyway. Mays v. Springborn, 719 F.3d 631, 633 (7th
Cir. 2013). If Defendants meet this burden, then Plaintiff must
show that Defendants’ proffered reason is pretextual, that is, a lie.
Thayer v. Chiczewski, 705 F.3d 237, 250-51 (7th Cir. 2012).
Plaintiff lists many adverse actions spanning from 2012
through 2014 which he believes were taken in retaliation for
Plaintiff’s grievances and lawsuits. These adverse actions include
shakedowns, disciplinary reports, guilty findings on disciplinary
reports, interrogations, confiscation of discovery disks, removing
Plaintiff from gym and from his ADA compliant cell, threats,
placement in “special management,” and movement of Plaintiff to a
different room to prevent Plaintiff’s legal collaboration with another
resident.
Plaintiff’s evidence of retaliatory motive includes a purported
admission by Defendant Hankins that, “I can do what I want with
you,” and, “Nobody is going to touch me.” (Pl.’s Dep. p.77.) Plaintiff
also avers that Defendant Clayton harassed, threatened, and
interrogated Plaintiff for helping other residents with legal work or
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pursuing Plaintiff’s own legal work. Plaintiff asserts that before one
shakedown, Defendant Clayton said, “You want to be a lawyer, you
want to file lawsuits then get used to the Fourth Amendment and
getting shook down . . . .” (Pl.’s Aff. para. 47, d/e 54-3.)2 Plaintiff
also asserts in his response that Defendant Clayton promised to
make Plaintiff’s life miserable if Plaintiff did not stop helping other
residents with their legal matters. (Pl.’s Resp. p. 10, d/e 54-2.)
Plaintiff further avers that Defendant Scott does not allow residents
to share legal materials or discuss legal matters and directs a
shakedown of Plaintiff every week before Plaintiff attends his
religious service, in order to check for legal materials. (Pl.’s Aff.
paras. 73, 76.)
Defendants point out that they did not author the behavior
reports, did not alone determine Plaintiff’s guilt on those reports,
and were not involved in many of the alleged retaliatory actions.
Defendants also offer evidence that all of the actions taken against
Plaintiff, whether by Defendants or others, were taken for legitimate
reasons, not because of retaliatory motive, and would have been

Plaintiff contends that Defendant Hankins told security guard Wilts to “continuously shake
[Plaintiff] down and also told the guards to write Plaintiff behavior reports if Plaintiff talked
about his CD, but those statements are inadmissible hearsay.
2

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taken regardless of retaliatory motive. The fact that Plaintiff files
lawsuits and grievances does not mean that every adverse action
taken against Plaintiff is motivated by retaliation for those lawsuits
and grievances. Shafer v. Kal Kan Foods, Inc., 417 F.3d 663, 664
(7th Cir. 2005)(“Post hoc ergo propter hoc3 is not a good way to
establish causation.”) As for the Directors of the facility, Defendants
Ashby and Scott have no general constitutional duty to take
corrective action and were not required to believe Plaintiff’s version
of events. See Soderbeck v. Burnett County, 752 F.2d 285, 293 (7th
Cir. 1985)(“Failure to take corrective action cannot in and of itself
violate section 1983. Otherwise the action of an inferior officer would
automatically be attributed up the line to his highest superior . . . .”)
On the other hand, Plaintiff insists that Defendant Hankins
and Clayton directed others to take the adverse actions because of
Plaintiff’s grievances and lawsuits, though his evidence seems to
consist only of Defendants’ purported admissions. Plaintiff also
contends that he informed Defendants Ashby and Scott of the
alleged retaliation, but they took no action. See Perez v. Fenoglio,
792 F.3d 768, 781–82 (7th Cir. 2015)(“An inmate’s correspondence
3

Post hoc ergo propter hoc is a Latin phrase meaning “after this, therefore because of this.”

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to a prison administrator may … establish a basis for personal
liability under § 1983 where that correspondence provides sufficient
knowledge of a constitutional deprivation.”)
After careful review of the summary judgment submissions, the
Court concludes that granting summary judgment to Defendants on
Plaintiff’s retaliation claim would usurp the jury’s role. The Court is
not to weigh evidence or assess credibility at this stage. Stokes v.
Board of Educ. of the City of Chicago, 599 F.3d 617 (7th Cir.
2010)("In deciding a motion for summary judgment, neither the
district court nor this court may assess the credibility of witnesses,
choose between competing reasonable inferences, or balance the
relative weight of conflicting evidence.") Defendants’ qualified
immunity argument depends on ignoring the facts favorable to
Plaintiff and accepting the Defendants’ explanations for their
actions, which the Court cannot do at this stage. Accordingly, the
case will be set for trial.
The Court notes for future discussion that Plaintiff’s claim
about the inability to share legal work or talk about legal work may
best fit under a straight First Amendment free speech claim, rather

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than a retaliation claim, but that issue will be addressed at the final
pretrial conference.
On a separate matter, the Court is concerned that, given
Plaintiff’s lengthy litigation history and lack of merit on his access
claim, Plaintiff may be using the judicial process for the improper
purpose of harassing Defendants. Plaintiff is advised that the Court
may assess costs against a losing party under Federal Rule of Civil
Procedure 54, and, in fact, must do so unless a party has no ability
to pay the costs now or in the future. Additionally, the Court is
considering the possibility of deducting “points” from a resident’s
account if the resident loses a case and is unable to pay costs.
Those are matters that will be addressed at the close of this case, if
necessary.
IT IS ORDERED:
1. Plaintiff’s motion for the appointment of counsel is denied
(60). Plaintiff has substantial federal litigation experience. He has
pursued twenty cases in the Central District, with nine still
pending. He has also pursued cases in the Northern District and in
state court. His pleadings are well-written and demonstrate a good
understanding of the applicable law and of federal procedure.
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Additionally, he has a high school degree and, at the time of his
deposition, was pursuing a bachelor’s degree in theology. He also
owned his own businesses before his incarceration and detention.
(Pl.’s Dep. 8-9.) He already has personal knowledge of many of the
facts relevant to his claims and has been able to obtain relevant
evidence during discovery. On this record, Plaintiff appears
competent to proceed pro se in light of the relatively simple nature
of his claims. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
2. Plaintiff’s motion to strike Defendants’ motion for summary
judgment is denied (51).
3. Defendants’ motion to strike Plaintiff’s additional facts is
denied (56). While Plaintiff does not cite the record in support of his
additional facts, most of the additional facts are reiterations of
Plaintiff’s argument and response to Defendants’ proposed
undisputed facts.
4. Defendant’s motion for summary judgment is granted in
part and denied in part (48). Summary judgment is granted to
Defendants on Plaintiff’s access to courts claim. Summary
judgment is granted to Defendants to the extent Plaintiff seeks

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money damages against Defendants in their official capacities.
Summary judgment is denied on Plaintiff’s retaliation claims.
5. The jury selection and trial are scheduled for July 11-14,
2017, beginning at 9:00 a.m. each day.
6. The final pretrial conference is scheduled for June 12, 2017
at 10:00 a.m.
7. The parties may request a settlement conference with the
Magistrate Judge if they believe another try at settlement could be
productive.
8. The clerk is directed to issue a personal writ to secure
Plaintiff’s presence at the jury selection and trial.
9. The clerk is directed to issue a video writ to secure Plaintiff’s
presence at the final pretrial conference.
ENTER: January 27, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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