Wise v. Kenosha County Sheriff et al

Filing 79

ORDER signed by Judge J P Stadtmueller on 9/15/09: granting 48 defendants' Motion for Summary Judgment and dismissing this action on its merits together with costs as taxed by the Clerk of the Court; denying 59 plaintiff's Motion for Summary Judgment; denying 67 plaintiff's Motion to Dismiss; denying 71 plaintiff's Motion for Leniency and Liberal Construction. (cc: plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
E R IC R. W IS E , P l a i n t if f, v. D A V ID BETH, Kenosha County Sheriff, C O R P O R A L KAISER, CORPORAL REID, D O N N A GAYHART, and GARY PRESTON, D e fe n d a n ts . C a s e No. 07-C-1150

ORDER
T h e plaintiff, Eric W is e , who is currently incarcerated at the Petersburg F e d e ra l Correctional Institution, is proceeding pro se under 42 U.S.C. § 1983, c la im in g that his constitutional right of access to the courts was violated while he was c o n fin e d in the Kenosha County Jail. The defendants have filed a motion for

s u m m a ry judgment, and the plaintiff has filed a cross-motion for summary judgment a s well as a motion to deny summary judgment, and a motion for "leniency and lib e ra l construction." A s an initial matter, the court notes that W is e 's motion for "leniency and liberal c o n s tru c tio n " does not seek any specific relief. Rather, W is e reminds the court that h e is proceeding pro se, and essentially asks the court to forgive any procedural d e fe c ts in his filings. This motion is moot, as no defects have been identified re q u irin g leniency. See also Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994) ("A lth o u g h civil litigants who represent themselves ("pro se") benefit from various

p ro c e d u ra l protections . . . pro se litigants are not entitled to a general dispensation fro m the rules of procedure."). MOTIONS FOR SUMMARY JUDGMENT S u m m a ry judgment is required "if the pleadings, the discovery and disclosure m a te ria ls on file, and any affidavits, show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R . Civ. P. 56(c). The mere existence of some factual dispute does not defeat a s u m m a r y judgment motion; "the requirement is that there be no genuine issue of m a te r ia l fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For a d is p u te to be genuine, the evidence must be such that a "reasonable jury could re tu rn a verdict for the nonmoving party." Id. For the fact to be material, it must re la te to a dispute that "might affect the outcome of the suit." Id. A lth o u g h summary judgment is a useful tool for isolating and terminating fa c tu a lly unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986), c o u rts should act with caution in granting summary judgment, Anderson, 477 U.S. a t 255. When the evidence presented shows a dispute over facts that might affect th e outcome of the suit under governing law, summary judgment must be denied. Id . at 248. The moving party bears the initial burden of demonstrating that he is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323. Where the moving p a r ty seeks summary judgment on the ground that there is an absence of evidence

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to support the nonmoving party's case, the moving party may satisfy its initial burden s im p ly by pointing out the absence of evidence. Id. at 325. Once the moving party's in itia l burden is met, the nonmoving party must "go beyond the pleadings" and d e s ig n a te specific facts to support each element of the cause of action, showing a g e n u in e issue for trial. Id. at 323-24. Neither party may rest on mere allegations or d e n ia ls in the pleadings, Anderson, 477 U.S. at 248, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (1989). In e va lu a tin g a motion for summary judgment, the court must draw all inferences in a lig h t most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith R a d io Corp., 475 U.S. 574, 587 (1986). However, it is "not required to draw every c o n c e iva b le inference from the record ­ only those inferences that are reasonable." B a n k Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). FACTS 1 T h e plaintiff, Eric W is e , was confined at the Kenosha County Jail ("the Jail") fro m May 12, 2006, to September 15, 2006. Defendant David Beth is the Kenosha C o u n ty Sheriff. The other defendants were employed at the Jail: Captain Gary P re s to n , Corporal James Kaiser, Corporal James Reid, and Officer Donna Gayhart. W ise is proceeding on a claim that the defendants obstructed his access to

1 This section is taken from the plaintiff's proposed findings of fact (PFOF), the plaintiff's verified a m e n d e d com p la in t, the defendants' proposed finding of fact (DFOF), the parties' affidavits and other e v id e n c e filed in support of their proposed facts and responses thereto. Unless otherwise indicated, facts that d o not com p ly with Federal Rule of Civil Procedure 56(e) are not included in this section. See Fed. R. Civ. P . 56(e) (Affidavits m u s t be m a d e on personal knowledge, set out facts that would be adm is s ib le in evidence, a n d show that the affiant is com p e te n t to testify on the m a t te r s stated.).

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th e courts while he was in custody at the Jail. W is e arrived at the Jail on or about M a y 12, 2006, and immediately "requested access to the law library and/or legal m a te r ia ls and/or legal computer," but his "frequent requests were all denied." (A m e n d e d Complaint [Am. Compl.] at 4). W ise alleges that his "access to the courts w a s denied on or about 8/11/06, 6/3/06, 7/24/06, 7/27/06 by DEG [Donna Gayhart], 8 /2 4 /0 6 by Corporal Reid, and 8/25/06 by Corporal Kaiser," and that in addition to th e s e dates of written denials "all requests were denied and . . . access to the courts o b s tru c ted for the duration of ... confinement." (Id. at 4-5). W is e also alleges that d e fe n d a n ts Beth and Preston are "legally responsible for written or unwritten p o lic ie s , customs, procedures, rules, etc. and the overall operation of the jail . . . ." (Id . at 2-3). W ise asserts that the Jail had an "exact citation" system for legal assistance, w h ic h required the inmates to already have the case citation in order to obtain cases, a n d that he had no source to obtain citations in order to use the system. (Plaintiff's P ro p o s e d Finding of Fact [PFOF] ¶16). The defendants assert that inmates have a c c e s s to copies of the W is c o n s in Statutes and may also submit requests for case la w and other materials, which jail staff members attempt to find for the inmates, e ve n if the requests are vague or incomplete. (Defendants' Proposed Finding of F a c t [DFOF] ¶¶ 95-98; 146). As a result of his lack of access to legal materials, W is e believes he suffered p re ju d ic e in four court cases. (Am. Compl. at 5). First, while at the Jail he was

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"e n tire ly unable to research and file" a habeas corpus petition for USA v. Wise. (Id. a t 7). After he was transferred to another institution, he "made a hurried attempt but th e re was not enough time remaining" to do proper research and, as a result, two fed e ra l judges "rejected [his] rushed attempts." (Id.) Second, he was "hindered in re s e a rc h in g matters for appeal" in Texas v. Wise, and "[a]s a result some issues may h a ve been forfeited which should have been raised on appeal." (Id.) Third, he was "u n a b le to research all matters" related to Wisconsin v. Wise, and "this led to an in vo lu n ta ry uninformed guilty plea" and "to the W is c o n s in sentence being ran c o n s e c u tiv e ly to the federal sentence." (Id.) Finally, W is e was delayed in filing this 4 2 U.S.C. § 1983 action. (Id.) W is e had trial and appellate counsel for USA v. W is e , W is c o n s in v. Wise, and T e x a s v. W is e . (DFOF ¶¶ 43, 63, 69). W is e believes that his counsel in these

c a s e s was ineffective. (Plaintiff's Response to DFOF ¶¶ 43, 63, 69). After his fe d e ra l conviction was affirmed on appeal, W is e filed a motion for appointment of c o u n s e l for possible § 2255 relief on September 8, 2006, which United States District J u d g e Sam Cummings denied on September 15, 2006. (DFOF ¶¶ 42, 44, 46). W is e a ls o filed a motion to compel discovery, which Judge Cummings denied on February 8 , 2007. (DFOF ¶¶ 50, 54). On June 14, 2007, W is e filed a "Motion under 28 U .S .C . § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal C u s to d y," which was dismissed without prejudice due to lack of jurisdiction by United S tate s District Judge John Shabaz on June 19, 2007. (DFOF ¶¶ 55, 59).

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D e fe n d a n t Preston states that W is e did not file any inmate grievances or in m a te appeals regarding denial of access to the courts. (Preston Affidavit, ¶ 19). W is e states that he filed numerous grievances regarding access to the courts, and a ls o filed appeals which went unanswered. (Wise December Affidavit, ¶ 7). AN AL Y S IS T h e defendants argue that they are entitled to summary judgment because the p la in tiff did not suffer prejudice in any of his cases. The defendants further argue th a t the plaintiff did not exhaust his administrative remedies before bringing suit; that d e fe n d a n ts Sheriff Beth and Captain Preston were not personally involved; and that t h e y are entitled to qualified immunity because none of them violated clearly e s ta b lis h e d law. W is e argues: that he exhausted all available administrative remedies; that his in e ffe c tive lawyers did not satisfy the defendants' obligation to provide him with a c c e s s to the courts; that the defendants denied all of his frequent requests for legal a c c e s s and information; and, that the Jail's policy of requiring exact citations from in m a te s in order to obtain legal materials was an unconstitutional "Catch-22" b e c a u s e he had no way to obtain the appropriate citations. W is e further contends th a t as a result of these problems: he pleaded guilty without being fully informed and r e c e iv e d a consecutive rather than concurrent sentence in his W is c o n s in case; fo rfe ite d certain unspecified issues and lost his appeal in his Texas case; had his

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h a b e a s application rejected due to technicalities in his federal case; and was d e la ye d in filing this action. E x h a u s tio n of Administrative Remedies T h e Prison Litigation Reform Act of 1995 (PLRA), Pub. L. 104-134, 110 Stat. 1 3 2 1 (1996), provides that: [n ]o action shall be brought with respect to prison conditions under s e c tio n 1983 of this title, or any other Federal law, by a prisoner c o n fin e d in any jail, prison, or other correctional facility until such a d m in is tra tiv e remedies as are available are exhausted. 4 2 U.S.C. § 1997(e)a. Exhaustion of administrative remedies is a condition

p re c e d e n t to suit. Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002). Section 1997e a p p lie s to "all inmate suits, whether they involve general circumstances or particular e p is o d e s , and whether they allege excessive force or some other wrong." Porter v. N u s s le , 534 U.S. 516, 532 (2002). One purpose of the exhaustion requirement is to allow prison officials time and opportunity to respond to complaints internally b e fo re an inmate initiates litigation. Id. at 524-25. To provide officials with sufficient n o tic e , inmates must file grievances at the place and time and with the information re q u ire d by the prison's administrative rules. Strong v. David, 297 F.3d 646, 649 (7 th Cir. 2002). In this case, the defendants assert that Wise did not file any grievances re g a rd in g a denial of access to the courts. W is e , however, argues that his Wise avers that he submitted

g rie va n c e s were simply discarded by Jail staff.

g rie va n c e s and appeals concerning court access, according to the Jail's rules and -7-

p r o c e d u r e s , but did not receive responses. Given this dispute of material fact re g a rd in g whether W is e properly filed grievances regarding a denial of access to the c o u rts , the court finds that the defendants have not met their burden of establishing th a t W ise failed to exhaust his administrative remedies. See Dale v. Lappin, 376 F .3 d 652, 656 (7th Cir. 2004) ("Failure to exhaust is an affirmative defense, and the d e fe n d a n ts did not meet their burden of proving that [the plaintiff] had available re m e d ie s that he did not utilize."). Accordingly, the court will consider the merits of W is e 's claim that he was denied access to the courts.2 A c c e s s to the Courts P r is o n e rs have a constitutional right of access to the courts, and prison o ffic ia ls must assure that their inmates have "meaningful access." Lewis v. Casey, 5 1 8 U.S. 343, 350-51 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). "[P]rison la w libraries and legal assistance programs are not ends in themselves, but only the m e a n s for ensuring `a reasonably adequate opportunity to present claimed violations o f fundamental constitutional rights to the courts.'" Lewis, 518 U.S. at 351 (quoting B o u n d s , 430 U.S. at 825). Because the right is to access the courts rather than legal m a te r ia ls or law libraries, an inmate does not have a valid claim unless the conduct

Under Pavey v. Conley, 544 F.3d 739 (7th Cir 2008), exhaustion is a threshold issue to be resolved b e f o r e addressing the m e r i ts of the case. Pavey directs district judges to conduct a hearing on exhaustion a n d perm it appropriate discovery related to exhaustion as a prelim in a r y m a t te r , with m e r its discovery p r o c e e d in g only "[i]f and when the judge determ in e s that the prisoner has properly exhausted his a d m in is tr a tiv e rem e d ie s ." 544 F.3d at 742. In this case, however, the defendants briefed exhaustion and the m e r its sim u lta n e o u s ly, instead of seeking a threshold hearing on the contested issue of exhaustion. Rather th a n hearing testim o n y to evaluate the credibility of the parties' conflicting claim s relevant to the issue of e x h a u s tio n , the court will evaluate the m e r its of the access to the courts claim , which is resolvable on the r e c o r d already before the court.

2

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o f prison officials "prejudices a potentially meritorious challenge to his conviction, s e n ten c e , or conditions of confinement." Marshall v. Knight, 455 F.3d 965, 968 (7th C ir. 2006); see also Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) and Bridges v . Gilbert, 557 F.3d 541, 553 (7th Cir. 2009). The Court of Appeals for the Seventh Circuit has examined the sufficiency of "e xa c t cite" or "paging" systems on several occasions. These systems require in m a te s to file written requests accompanied by citations in order to obtain copies o f cases or legal materials, and the Seventh Circuit has found them constitutionally in a d e q u a te unless the citation access system is supplemented by an adequate lib ra ry which the prisoners can use to initiate their research. See Corgain v. Miller, 7 0 8 F.2d 1241 (7th Cir. 1983) (prison law library system where prisoners could o b ta in materials only by written requests with exact citations was constitutionally in a d e q u a te ); Campbell v. Miller 787 F.2d 217 (7th Cir. 1986), cert. denied, 479 U.S. 1 0 1 9 (1986) (modified exact cite system upheld for highest risk inmates in maximum s e c u rity prison, where prisoners could use small library directly and also request up to two specific law books from the main library at a time); Caldwell v. Miller, 790 F.2d 5 8 9 (7th Cir. 1986) (summary judgment precluded by factual dispute regarding a d e q u a c y where main library access denied during lock down but inmates could use s m a lle r "basic" libraries and request additional material by citation). The inadequacy o f paging systems alone has been widely recognized in other circuits as well. See P e te rk in v. Jeffes, 855 F.2d 1021, 1038 n.22 (3d Cir. 1988) ("[p]aging systems ... as

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th e sole legal assistance furnished to inmates, have been rejected consistently by o th e r courts of appeals"); Griffin v. Coughlin, 743 F. Supp. 1006, 1024 (N.D.N.Y. 1 9 9 0 ) (book request system for prisoners inadequate: "inmates are not able to b r o w s e through materials in order to compare legal theories and formulate ideas. T h is is a constitutionally impermissible situation . . . ."). The parties disagree as to whether "exact" citations are required when in m a te s request legal materials at the Kenosha County Jail, but they do agree that in m a te s must submit requests to obtain materials other than the W is c o n s in Statutes. T h e defendants assert that inmates have access to copies of the statutes, while W is e maintains that only a few "obsolete" copies are available. Similarly, in

D e M a llo r y v. Cullen, 855 F.2d 442 (7th Cir. 1988), an inmate housed in the "A d ju s tm e n t Center" had direct access only to an outdated set of statute books, and h a d to file written requests in order to check out legal volumes from the prison's main le g a l library. The court found this inadequate: DeMallory . . . had no access to law libraries ­ even "starter" or "basic" lib ra rie s . Unlike the control unit in Campbell, the Adjustment Center lib r a r y lacked the primary resources to allow DeMallory or other inmates to adequately begin their initial legal research or to formulate tentative th e o r ie s . Id. at 447. Accordingly, qualified immunity would not protect the defendants if the le g a l assistance provided to unrepresented inmates is limited to a paging system. S e e also Canell v. Bradshaw, 840 F.Supp. 1382, 1389 (D. Or. 1993) ("By 1993, no re a s o n a b le public official would have believed a paging system was by itself

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s u ffic ie n t to protect an inmate's fundamental constitutional right of access to the c o u rts ."). However, W is e cannot prevail merely by showing that the Jail's system is d e fic ie n t. As the Supreme Court of the United States emphasized in Lewis, "an in m a te cannot establish relevant actual injury simply by establishing that his prison's la w library or legal assistance program is subpar" ­ rather he must "demonstrate that the alleged shortcomings . . . hindered his efforts to pursue a legal claim." Lewis, 5 1 8 U.S. at 351. A prisoner's complaint must connect the alleged denial of access to the courts and "an actual injury in the form of interference with a nonfrivolous legal c la im ." Bridges, 557 F.3d at 553 (internal quotation omitted); see also Ortiz, 561 F .3 d at 671. At the pleadings stage, it suffices to identify the lawsuits that were a ffe c te d , without detailing "the precise causal connection between particular legal m a te r ia ls withheld and particular adverse rulings," but eventually, the plaintiff must "p ro ve that because he lacked law books or briefs or other materials he lost one or m o re of these cases." Pratt v. Tarr, 464 F.3d 730, 733 (7th Cir. 2006). At summary ju d g m e n t, the plaintiff must provide "information about how his progress on [actual o r proposed cases] was hindered," and must provide a "basis to conclude that the is s u e s he sought to raise . . . . were nonfrivolous." Johnson v. Barczak, 338 F.3d 7 7 1 , 772 (7th Cir. 2003). W is e claims that four of his lawsuits suffered due to his lack of access to legal m a te ria ls while he was housed at the Jail. In two of those lawsuits, W is e had

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a tto r n e y s , although he complains that they were ineffective. Specifically, W is e c la im s that he pleaded guilty without being fully informed and received a consecutive ra th e r than concurrent sentence in his W is c o n s in case. It is undisputed that he was re p re s e n te d by trial and appellate counsel in that matter. Wise also claims that he fo rfe ite d some issues and lost his appeal in his Texas case. It is also undisputed th a t W is e was represented by both trial and appellate counsel in that case. Ina d e q u a t e legal libraries do not violate the constitutional rights of prisoners who are re p r e s e n te d by attorneys, or prisoners who declined appointed counsel, as "access to legal materials is required only for unrepresented litigants." Campbell v. Clarke, 4 8 1 F.3d 967, 968 (7th Cir. 2007); see also United States v. Byrd, 208 F.3d 592, 5 9 3 -9 4 (7th Cir. 2000) (inmate claimed that his standby counsel was a "potted plant," b u t the court held that "when a person is offered appointed counsel but chooses in s te a d to represent himself, he does not have a right to access a law library . . . he h a s the right to legal help through appointed counsel, and when he declines that h e lp , other legal rights, like access to a law library, do not spring up."). Thus, W is e c a n n o t establish a violation of his right to access the courts in these two cases w h e re he was represented by counsel, as inadequate legal libraries do not violate th e constitutional rights of a prisoner who is represented by an attorney, no matter h o w dissatisfied the prisoner is with his counsel. See Campbell, 481 F.3d at 968, a n d Byrd, 208 F.3d at 593-94.

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In his federal case, W is e also had trial and appellate counsel, but he was u n re p re s e n te d in his attempts to seek post-conviction habeas relief. Counsel for the u n d e rlyin g conviction does not prevent Wise from bringing an access to the courts c la im related to his habeas proceedings. Cf. Ortiz, 561 F.3d at 671 ("W e agree that th e assistance of counsel in his criminal case did not diminish his right to adequate le g a l resources for the purpose of pursuing his civil suit."). W is e contends that while in the Jail he was unable to conduct legal research, and that his habeas applications w e re rejected. W is e 's pro se motions to appoint counsel for possible § 2255 relief a n d to compel discovery were denied by United States District Judge Sam C u m m in g s , and W is e 's § 2255 application was rejected without prejudice by United S ta te s District Judge John Shabaz due to improper jurisdiction. However, W is e fails to connect these adverse rulings to legal materials that were withheld from him, and d o e s not provide evidence from which a fact-finder could determine that the denial o f legal resources caused actual prejudice to his claims. Thus, W ise has failed to c re a te the record required to survive summary judgment on an access to the courts c la im . See Pratt, 464 F.3d at 733: "At some point in this suit, the plaintiff must prove th a t because he lacked law books or briefs or other materials he lost one or more of th e s e cases." F in a lly, W is e contends that the lack of legal resources at the Jail caused him to delay filing this lawsuit. However, delay of over a year does not constitute injury u n le s s it causes "actual substantial prejudice to specific litigation." Johnson, 338

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F .3 d at 773 (internal quotation omitted). Wise does not identify any substantial p r e ju d ic e to this lawsuit, which he filed well within the six-year statute of limitations. A c c o r d in g ly , IT IS ORDERED that the defendants' motion for summary judgment (Docket # 4 8 ) be and the same is hereby GRANTED, and this action be and the same is h e re b y DISMISSED on its merits together with costs as taxed by the Clerk of the C o u rt. IT IS FURTHER ORDERED that the plaintiff's motion for summary judgment (D o c k e t #59), motion to deny summary judgment (Docket #67), and motion for le n ie n c y and liberal construction (Docket #71) be and the same are hereby DENIED. T h e Clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 15th day of September, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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