Long et al v. Cook County et al
Filing
130
MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 9/29/2017: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARBARA LYONS, GREGORY
KOGER, and SHAKIRA CARTER
Plaintiffs,
v.
THOMAS J. DART and COOK
COUNTY, ILLINOIS.
Defendants.
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No. 14 C 6361
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
Plaintiffs Barbara Lyons (“Lyons”) and Shakira Carter (“Carter”) sent books
and magazines to two individuals housed in Cook County Jail (“CCJ”). Specifically,
Lyons sent books to Plaintiff Gregory Koger (“Koger”) during his time as an inmate
at CCJ. All but three of Koger’s books were confiscated by jail staff. Plaintiffs
brought suit claiming CCJ’s three book limit is a violation of their right to free
speech, and have moved for summary judgment. [Doc. No. 115]. Defendants Tom
Dart and Cook County argue that the Plaintiffs lack standing to assert the claims
and also contend that the three book limit serves valid penological interests and is
not unconstitutional. Defendants have also moved for summary judgment [Doc No.
118]. The parties have consented to the jurisdiction of the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, Plaintiffs’
motion is denied, and Defendants’ motion is granted.
1
BACKGROUND1
Plaintiff Gregory Koger was serving a 300-day sentence between July and
October of 2013, in the Cook County Jail (“CCJ”). [Pls.’ SOF at ¶1]. During this
time, Koger asked friends to send him books and other reading materials. [Id. at
¶4]. Barbara Lyons is one of Koger’s friends and is a frequent communicator with
prison inmates. [Id. at ¶11]. Lyons mailed Koger reading materials, including more
than ten books, and an issue of the Chicago Tribune. [Id. at ¶¶10, 11]. Jail records
show that during his sentence, Koger received 42 books and one magazine. [Id. at
¶2]. While it is disputed that Koger was permitted to possess more than three books
in his cell, it appears that for most of his detention, Koger physically possessed
more than three books in his cell at a time. [Id. at ¶3].
On October 5, 2013, CCJ corrections officers searched Deck 3A of Division 10
jail, where Koger was housed. [Id. at ¶5]. The parties dispute what occurred during
this search. [Id. at ¶6]. The Plaintiffs claim that books were taken during this
search. [Id.]. According to Koger, correctional officers confiscated more than thirty
books from him and left him with three books, not bothering to ask which three
books he wanted to keep. [Id.]. Koger claims he never saw these books again. [Id.].
The other witnesses detained in that search: Gerald Washington, Jerry Collins,
Uzziel Roman, and Jovanny Martinez, similarly stated that correctional officers
confiscated books and magazines from them and all other inmates in that housing
unit, leaving each inmate with no more than three books. [Id. at ¶7].
The following facts are taken from the parties’ Local Rule 56.1 Statements (“SOF”) and
are uncontested unless otherwise noted.
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2
The Defendants dispute that Koger had thirty books taken and that he was
not permitted to select which books he wanted to keep. [Defts.’ Resp. to Pls.’ SOF at
¶6]. One of the Defendants’ witnesses, Sergeant Peter Giunta, the officer in charge
of the team that conducted the search, stated that he had no personal recollection of
the search, but did not “recall” any books or magazines being taken during the
search. [Pls.’ SOF at ¶8]. Giunta also testified that had books or magazines been
taken, he would have documented it. [Id.]. Defendants also cite to the October 5,
2013 Search Report, which does not indicate any books were taken. [Id. at ¶6].
The policy used to confiscate the excess books found during the search is a
formal written policy found in the Inmate Information Handbook (the “Handbook”)
titled “Items Allowed in Your Cell”. [Id. at ¶¶15, 16]. The policy limits the amounts
of property an inmate may possess in two ways. [Defts.’ SOF at ¶2]. First, inmates
may possess only certain amounts of individual, numerically-limited items. [Id.].
For example, inmates may only possess one comb, one bar of soap, four pairs of
socks, etc. [Id.] Books and reading materials are also limited by this numerical
policy. [Id. at ¶6]. Specifically, inmates may only possess: “THREE (3) TOTALMAGAZINES OR BOOKS PER INMATE (religious material excluded).” [Pls.’ SOF
at ¶15].
The Plaintiffs interpret this policy to mean that CCJ inmates are prohibited
from having more than three total books and/or magazines in their cell. [Id.] The
Defendants however interpret this policy to mean that CCJ inmates may keep
unlimited materials, one Bible or Koran, one study book, and three magazines or
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books, not including religious material. [Defts.’ Resp. to Pls.’ SOF at ¶15; see also
Defts.’ SOF at ¶29].
The second limitation imposed on inmates and their property is an overall
volume limit on all personal items. [Defts.’ SOF at ¶2.] Excluding shoes, all other
personal property, included numerically limited items, must fit inside a “property
bag.” [Id.; see also Pls.’ SOF at ¶¶ at 27, 28]. The property bag is now the
predominant container for storing inmate property, and is approximately 2 cubic
feet in size. [Pls.’ SOF at ¶29; see also Defts.’ SOF at ¶20].
If an inmate is in possession of materials in violation of either the numerical
limit or volume limit, it is undisputed that the inmate would be considered to
possess “contraband.” [Pls.’ SOF at ¶17]. The Handbook defines the possession of
contraband as an offense that can result in discipline and/or criminal charges. [Id.
at ¶18].
It is undisputed that there is no temporal limit on books and magazines kept
in an inmate’s cell. [Defts.’ SOF at ¶7]. Detainees are permitted to discard books
and magazines if they have too many, share books and magazines with other
detainees, check out up to two books from the public library, and receive new books
and magazines through the mail or from other sources. [Id.] The Defendants claim
there are numerous justifications for the numerical and volume limits on personal
property. [Pls.’ SOF at ¶24].
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DISCUSSION
Before the court are Plaintiffs’ and Defendants’ cross-motions for summary
judgment. Plaintiffs contend they are entitled to summary judgment because: (1)
CCJ’s policy violates the rights of prisoners and persons outside the jail who seek to
communicate with inmates; (2) CCJ’s policy is not constitutional under the fourfactor Turner test; (3) case law establishes the importance of reading in a
penological setting; and (4) Monell liability exists against Sheriff Thomas J. Dart.
Defendants respond that: (1) Plaintiffs lack standing to pursue this case; (2) each
factor of the Turner test favors Defendants; and (3) no deprivation of property
occurred because Plaintiffs have an alternative remedy under state law. Because
this Court finds that the Plaintiffs lack standing, the Court will only address the
parties’ arguments on that issue.
A. Plaintiffs Lyons and Carter do not have standing.
Now at summary judgment, the Court will evaluate whether the plaintiffs
Lyons or Carter2 has established facts to support standing to seek injunctive relief
in this case. Standing is a threshold issue that must be determined before the Court
may consider any substantive issues. Quad/Graphics, Inc. v. Fass, 724 F.2d 1230,
1232 (7th Cir. 1983) (“Since standing is a threshold issue, we must address it first.”)
As with all challenges to standing, the starting point is Article III’s “case or
The court granted Plaintiffs’ Motion For Leave to File Instanter The Attached First
Amended Complaint on Oct. 30, 2015, whereby Carter was properly added as an additional
plaintiff in this case. [68]. Carter sent books, magazines, and other reading materials to her
fiancée throughout his detention in CCJ and seeks to do so in the future. She has never
been incarcerated at CCJ. [Doc. 57, Ex. 1 at ¶8].
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controversy” requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992).
To demonstrate Article III standing, a plaintiff must show (1) that she has suffered
an actual or threatened injury; (2) that such injury is fairly traceable to the actions
of the defendant; and (3) that a favorable decision by a court would likely address
the harm. Id. at 559–61. The party seeking to be heard in federal court must prove
each element of standing with specificity. Lujan, 504 U.S. at 561 (“Since they are
not mere pleading requirements but rather an indispensable part of the plaintiff's
case, each element must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.”)
Senders of books and inmates have a First Amendment interest in
communicating subject to regulation that furthers legitimate penological interests.
See Thornburgh v. Abbott, 490 U.S. 401, 407 (1987); Rowe v. Shake, 196 F.3d 778,
783 (7th Cir. 1999). To establish Article III standing, an injury must be “concrete,
particularized, and actual or imminent; fairly traceable to the challenged action;
and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561
U.S. 139, 140 (2010). “[T]hreatened injury must be ‘“certainly impending”’ to
constitute injury in fact,” and “[a]llegations of possible future injury do not satisfy
the requirements” of Article III. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
“When plaintiffs ‘do not claim that they have ever been threatened with
prosecution, that a prosecution is likely, or even that a prosecution is remotely
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possible,’ they do not allege a dispute susceptible to resolution by a federal court.”
Babbitt, 442 U.S. at 298–99 quoting Younger v. Harris, 401 U.S. 37, 42 (1971).
“Chilled speech is, unquestionably, an injury supporting standing . . .” Bell v.
Keating, 697 F.3d 445, 453 (7th Cir. 2012). But a plaintiff’s “notional or subjective
fear of chilling is insufficient to sustain a court’s jurisdiction under Article III.” Bell,
697 F.3d at 453–57; see also Schmidling v. City of Chicago, 1 F.3d 494, 499 (7th Cir.
1993) (“anticipation, fervor of advocacy, speculation, or even fear is not enough” to
establish a cognizable Article III injury.”)
Here, the proof presented by Lyons and Carter does not give rise to standing.
Although Lyons and Carter express that they have been “chilled” into no longer
sending reading materials to detainees at CCJ, this simply does not constitute a
credible threat of prosecution which amounts to an injury-in-fact. The closest Lyons
comes to providing any evidence that her exercise of speech would result in
punishment is her testimony that she refrains from sending books to the inmates at
CCJ because they may be confiscated, even though she does not believe she can be
punished for sending more books or magazines to an inmate at CCJ than he is
allowed to have in his cell. (Defts.’ SOF at ¶40, Doc. No. 60, Ex. 1 at 94:5–13).
Through her testimony, Lyons revealed that she had never been fined, arrested,
threatened or otherwise punished for sending book or magazines to CCJ. (Id. at
56:6–15, 117:15–22). Carter’s testimony that she “stopped sending” books after
learning of the three-book limit and the occasions on which her fiancée’s books were
confiscated because it was a “waste of time” and money, is likewise absent of any
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credible proof of punishment. (Defts.’ SOF at ¶41, Ex. 4 at 121:20–123:10.) Carter
similarly testified that she had never been threatened with any kind for sending
book or magazines to inmates at CCJ. (Id. at 63:11–24.) Based on these statements,
it is clear that Lyons and Carter self-censorship arises from a fear of punishment
that is far too speculative to confer First Amendment standing to either.
Schmidling, 1 F.3d at 499 (“For the purposes of determining standing, we are
initially and primarily concerned with the threat of prosecution, not with a litigant’s
anticipation of it.”) (citation omitted).
Lyons and Carter assert that they nonetheless still have standing to pursue
their injunctive relief claim based on the principle that censorship of prisoner mail
affects the rights of senders. In particular, Lyons and Carter claim that CCJ’s policy
directly interferes with their ability to communicate with inmates and unduly
restricts their ability to send more than three books and/or magazines without at
least some of the materials being discarded.
There can be no doubt that “non-prisoners do indeed have a First
Amendment right to correspond with prisoners.” See Rowe v. Shake, 196 F.3d 778,
783 (7th Cir. 1999) (citing Thornburgh, 490 U.S. 401, 407 (1989); Procunier v.
Martinez, 416 U.S. at 408–09 overruled on other grounds by Thornburgh, 490 U.S.
401 (1989)). It is equally certain that “[t]he government’s unjustifiable interference
with correspondence [may] violate[] the First Amendment rights of both the
recipient and the sender.” See Rowe, 196 F.3d at 783. The problem with Lyons and
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Carter’s argument is that they have not established any attempt to mail books to an
inmate at CCJ since learning of the policy.
Lyons testified that she did not send books or magazines to any other inmate
at CCJ while Koger was housed there. (Defts.’ SOF at ¶40 at 71:16–19). She
explained that “you don’t just send [books] to the jail” and that she “wouldn’t just
out of the blue send a book to some stranger.” (Defts.’ SOF at ¶40 at 71:20–24, 89:4–
10). What’s more, Lyons has not identified any other detainee at CCJ that she
wishes to mail books since Koger’s release. As a result, Lyons cannot claim the
government has interfered with her correspondence when she has established no
present desire to engage in such speech. Bell, 697 F.3d at 454 (stating that a
“plaintiffs in a suit for prospective relief based on a ‘chilling effect’ on speech can
satisfy the requirement that their claim of injury be ‘concrete and particularized’”
by showing, inter alia, “affidavits or testimony stating a present desire” to engage in
such speech.)
Second, Lyons and Carter’s argument misapplies the law to the facts of this
case. Defendants’ three-book policy does not regulate or censor the rights of persons
to send mail to detainees at CCJ. Rather, the challenged policy falls under the
subheading in the Handbook titled “Items Allowed in Your Cell”. (Pls.’ SOF at ¶17,
Ex. 8 at 13–16.) Rules regarding mail are found elsewhere in the Handbook in
“Chapter 8: Outside Communication.” (Id. at 22–26.) The policy challenged here
does not concern how much, how often, or what content Lyons and Carter are
permitted to send to the detainees, it is simply a limitation on the number a books
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an inmate is permitted to keep in his cell. Thus, Lyons and Carter’s reliance on case
law which addresses mailroom policies and the ability of outsiders to communicate
with prisoners is inapplicable. Accordingly, their argument is not persuasive.
Lyons and Carter attempt to take another route to establish standing;
claiming they have already met their burden because their allegations survived a
motion to dismiss. See Long et al., v. Dart, No. 14-cv-6361, 2015 WL 1746489 (N.D.
Ill. Apr. 15, 2015). This conclusion misrepresents their burden at this point in the
case. At the summary judgment stage, an adverse party may not rest upon the mere
allegations or denials of his pleading, see Fed. R. Civ. P. 56(e), and the rule that the
plaintiffs’ allegations will be accepted as true applies only to motions to dismiss, not
to motions for summary judgment. Dombrowski v. Dowling, 459 F.2d 190, 192 n.4
(7th Cir. 1972). Now, Lyons and Carter must set forth specific facts rather than
mere allegations. See Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 n. 11 (1986) (citing Fed. R. Civ. P. 56(e)). At
the dismissal stage, this court ruled that Lyons and Carter had sufficiently alleged
an injury-in-fact to confer standing, not that they had indeed established that
standing. Long, 2015 WL 1746489 at *2. We now find that Lyons and Carter have
not presented material facts which establish a case or controversy under Article III.
The evidence presented is clear. Lyons and Carter have never been housed at
CCJ and have never been subject to the three-book policy, nor can they be punished
for violation of the policy. Accordingly, both have failed to establish an injury-in-fact
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under the case and controversy requirement of Article III. Therefore, their claims
for both declaratory and injunctive relief cannot be allowed to proceed.
B. Koger does not have standing to litigate his injunctive relief
We now turn our discussion to the remaining plaintiff in this matter. Koger,
unlike Lyons and Carter, was an inmate at CCJ who was subject to its three-book
policy during his 300-day sentence. Defendants challenge Koger’s standing to seek
injunctive relief because he has since been released from CCJ and therefore is no
longer subject to the policy.
In light of Kroger’s non-custodial position, his standing analysis while
seeking injunctive relief is governed by the Supreme Court’s decision of City of Los
Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the Supreme Court reasoned that a
plaintiff seeking injunctive relief under Article III must show that he or she is in
immediate danger of sustaining some direct injury, taking particular note that
“[p]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” Lyons, 461 U.S. at 102 (citation omitted).
Here, Koger cannot establish a real and immediate threat. The mere
possibility that Koger may sometime in the future return to CCJ and once again be
subject to the policy does not establish a case or controversy sufficient under Article
III. Even if Koger had standing to bring an injunction against Defendants, he must
continue to have a personal stake in the outcome of the case to avoid dismissal of
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his complaint for mootness. Generally, a case becomes moot “‘when the issues
presented are no longer “live” or the parties lack a legally cognizable interest in the
outcome.”’ United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980)
quoting Powell v. McCormack, 395 U.S. 486, 496 (1969). Under this general rule, it
seems clear that Koger’s claim against the three-book policy was moot once he was
released from CCJ and no longer subject to it.
Yet, a case is still not moot “where even though the factual controversy is
over, the case involves an order ‘capable of rep[e]tition, yet evading review.’” U.S. v.
Peters, 754 F.2d 753, 757–58 (7th Cir. 1985) quoting Southern Pacific Terminal Co.
v. ICC, 219 U.S. 498, 515 (1911); United States v. Edwards, 672 F.2d 1289 (7th Cir.
1982). This exception is limited to situations where: “(1) the challenged action was
in its duration too short to be fully litigated prior to its cessation or expiration, and
(2) there was a reasonable expectation that the same complaining party would be
subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982)
(citation omitted). Although it is possible that the short nature of Koger’s jail
sentence satisfies the first element, Koger cannot show that he would be subject to
the same policy again. See Gerstein v. Pugh, 420 U.S. 103, 110 n. 11 (1975)
(“Pretrial detention is by nature temporary, and it is most unlikely that any given
individual could have his constitutional claim decided on appeal before he is either
released or convicted.”); see also Demery v. Arpaio, 378 F.3d 1020, 1027 (9th Cir.
2004) (relying on Gerstein to find the plaintiff satisfied the first prong of the
capable-of-repetition-yet-evading-review branch of the mootness doctrine.)
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To satisfy the second prong, there “must be a ‘reasonable expectation’ or a
‘demonstrated probability’ that the same controversy will recur involving the same
complaining party.” Murphy, 455 U.S. at 482. Koger has failed to establish that
probability here. There is no evidence to indicate that since his release, Koger has
or will return to CCJ. Although it is possible that Koger may once again be housed
at CCJ, and therefore once again subject to its three-book policy, mere speculation
about the future is not enough to pass muster under this test. Accordingly, his claim
presented for injunctive relief is indeed moot.
C. Koger’s damages claim may not proceed
What remains is Koger’s claim against Defendants for compensatory
damages based on the books that he says were confiscated from him. Lyons, 461
U.S. at 109 (the plaintiff retained his claim for damages, despite the fact that he
lacked standing for injunctive relief.). The Handbook states that any property in
excess of the amounts allowed of that kind of item is considered contraband,
possession of which is illegal under Illinois law. (Pls.’ SOF at ¶17, Ex. 8 at 16.) It
then goes on to explain that disciplinary reports and possible criminal charges will
be given to any inmate who is found to possess contraband. (Id.) Importantly, the
Handbook does not specify where the property is held, if at all, once it is confiscated,
or if it is to be destroyed.
Koger alleges that correctional officers confiscated more than thirty books
from his cell during a search conducted on October 5, 2013. However, Sergeant
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Peter Giunta, who was in charge of the search, testified that he had no personal
recollection of a search or a taking of any of Koger’s personal property. When read
in a light most favorable to Koger, the record supports his account that correctional
officers entered his cell and confiscated all books that were in excess of the number
permitted by the Handbook. He states that he “never saw these books again.” (Pls.’
SOF at ¶6, Ex. 1 at 97:18–98:3.) Given that Koger has since been released from
CCJ, it would likewise be a reasonable to infer that the books were destroyed or
sent to CCJ’s library rather than stored for Koger until they could be returned.
However, because the Handbook does not provide any guidance on the destruction
of contraband, to the extent the books were destroyed, there is no evidence that it
was due to the policy at issue.
Kroger’s statements do not state a colorable federal claim as the gist of
Koger’s complaint is that an officer wrongfully deprived him of his books. A local
governmental actor’s “negligent loss of property does not offend due process.”
Davenport v. Giliberto, 566 F. App’x 525, 529 (7th Cir. 2014) (citing Daniels v.
Williams, 474 U.S. 327, 335–36 (1986)). Similarly, a deprivation of personal
property caused by a local governmental actor’s random and intentional conduct is
not actionable under § 1983 if state courts provide an adequate post-deprivation
remedy. Hudson v. Palmer, 468 U.S. 517, 533–34 (1984); Parratt v. Taylor, 451 U.S.
527, 540–41 (1981). Illinois law provides such a remedy. See Tucker v. Williams, 682
F.3d 654, 661 (7th Cir. 2012) (holding that a state court suit for conversion or
replevin were adequate post-deprivation remedies); see also Jeron v. City of
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Chicago, No. 15 C 8074, 2016 WL 1450073, at *4 (N.D. Ill. Apr. 13, 2016) (same,
collecting cases). As a result, any due process claim based on negligence or random
intentional conduct as any remedy for the lack of post-deprivation process lies in
state court, not in this court.
CONCLUSION
For the aforementioned reasons, Plaintiffs’ motion for summary judgment
[Doc. No. 115] is denied and Defendants’ motion for summary judgment [Doc. No.
118] is granted.
SO ORDERED.
ENTERED:
DATE: September 29, 2017
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
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