IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NISHITH P. PATEL

 Plaintiff,

 v.

LT. HURD

 Defendant.

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12 C 556

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Nishith P. Patel brings this pro se suit against Tom Dart, the Sheriff of Cook County

and Lieutenant Hurd, Deputy Sheriff and Lieutenant of Cook County. Sheriff Dart was

dismissed from this suit when Patel petitioned the Court to proceed in forma pauperis. (Doc.

4). Patel currently seeks redress against Lt. Hurd pursuant to 42 U.S.C. § 1983 for violating

his First Amendment right to petition the government for redress through lawsuits and jail

grievances. Particularly, Patel alleges that Lt. Hurd interfered with his First Amendment

right to access the courts. Currently pending before the Court is Lt. Hurd’s Motion to

Dismiss. Patel was ordered by this Court to respond to the Motion to Dismiss by May 17,

2012, but he failed to do so. As of this time, Patel has not submitted any response to the

Motion to Dismiss. Because the Complaint fails to state a claim upon which relief can be

granted and because Patel has failed to respond to the Defendant’s Motion to Dismiss, for

the reasons set forth below, the case is dismissed. 

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I. Background

In deciding the instant Motion, the Court assumes the veracity of the well-pleaded

allegations in the Complaint and construes all reasonable inferences in Patel’s favor. See

Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007) (citing Savory v. Lyons, 469 F.3d

667, 670 (7th Cir. 2006)). Patel alleges that on September 28, 2011, Cook County Jail Deputy

Hopkins fondled him be squeezing his right testicle. Patel complained about the incident

on an internal Cook County Jail grievance. Patel alleges that Lt. Hurd responded to Patel’s

grievance in person, telling him to drop the issue and not to mention it anymore. Patel

alleges that instead he exercised his First Amendment rights by utilizing the grievance

procedure for the Jail and fully exhausting his administrative remedies. Instead of

dropping the matter, Patel filed a civil rights action against Deputy Hopkins in this Court

in December 2011. See Patel v. Hopkins, No. 11 C 8862 (N.D. Ill). The case was dismissed

on March 12, 2012 for want of prosecution when Patel, after being duly warned, failed to

appear at two status hearings. (Case No. 11 C 8862; Doc. 24). Patel also filed a civil rights

action in this Court against Cook County Jail Superintendents Lyles and Curry, and those

too were dismissed for want of prosecution. (Case No. 11 C 8863; Doc. 24).

Patel alleges that Lt. Hurd was angered by his filing of the 11 C 8862 case, and

harassed him numerous times as a result. According to Patel, Lt. Hurd said to him, “How

dare you go above my head, I told you I didn’t want to hear about this matter, now you are

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going to pay. I’m going to do everything I can to fuck you over. I’ve been reading your

mail and I know what you’re on you dot head fucking Hindu son of a bitch.” According

to Patel, Lt. Hurd also told Patel that he would make sure Patel remained in pain. Patel

alleges that Lt. Hurd told him that he would ensure Patel did not see a doctor as well as

have no access to the law library to file his legal petitions. Patel alleges that Lt. Hurd

personally intercepted his request slips to the law library, saying, “Look at these slips of

yours, you’re not going anywhere–at least not in my law library here in [Division] 6.” Patel

alleges that Lt. Hurd opened and read both his incoming and outgoing mail, including

petitions to the U.S. District Court. He alleges that he was prejudiced in another civil rights

suit he filed in the District Court for the Northern District of Illinois, Patel v. Hubel, No. 11

C 6713 (N.D. Ill.) (Guzman, J.). Patel alleges that his case was dismissed for failure to state

a claim, and that documents were stripped out of his outgoing mail packet to the U.S.

District Court, such as the statement of the claim and a copy for the defendant.

Patel alleges that the U.S. District Court replied to him in the 11 C 6713 matter, but

that his incoming mail was intercepted. Patel alleges that this caused a delay in his ability

to file a motion for leave to appeal the dismissal to the United States Court of Appeals for

the Seventh Circuit. Patel alleges that on or around December 21 through December 29,

2011, all mail from the U.S. District Court and the U.S. Marshall’sOffice was opened before

he received it. Patel alleges that a deputy from Division 6, Unit 1B witnessed these events

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and quickly notified the Jail administration. Patel was then personally delivered his mail

by a sergeant. Later that day, Patel was on his way to lunch when Lt. Hurd said to him,

“You motherfucker, you can’t stop me from reading your mail.” Patel alleges that Lt. Hurd

taunted him about his allegations. Patel states that he is in fear of further retaliation and

prays for a protective order against Lt. Hurd for continuing his actions in a like manner. 

II. Standard of Review

When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all the

well-pleaded facts alleged in the complaint and construes all reasonable inferences in favor

of the non-moving party. See Killingsworth, 507 F.3d at 618 (citing Savory, 469 F.3d at 670);

accord Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To properly state a valid claim, the

complaint must contain a “short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Detailed factual allegations” are not required,

but the plaintiff must allege facts that, when “accepted as true ... ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). To determine whether a complaint meets this

standard the “reviewing court [must] draw on its judicial experience and common sense.” 

Iqbal, 556 U.S. at 678. If the factual allegations are well-pleaded, the Court assumes their

veracity and then proceeds to determine whether they plausibly give rise to an entitlement

to relief. See Id. at 679. A claim has facial plausibility when its factual content allows the

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Court to draw a reasonable inference that the defendant is liable for the misconduct

alleged. See Id. at 678. 

III. Discussion

Detainees have First Amendment rights, including the right to petition the

government for redress through lawsuits and jail grievances. See Bridges v. Gilbert, 557 F.3d

541, 547-548 (7th Cir. 2009); Dobbey v. Illinois Dep’t of Corr., 574 F.3d 443, 446-447 (7th Cir.

2009). To state a retaliation claim, Patel must plausibly suggest: that (1) he engaged in

protected First Amendment activity; (2) he suffered a deprivation of his rights that would

likely deterfuture First Amendment activity; and (3) the First Amendment activity caused

the Defendant to take the retaliatory action. See Gunville v. Walker, 583 F.3d 979, 983 (7th

Cir. 2009). 

As an initial matter, as this Court previously held, Patel cannot make out a

retaliation claim for the dismissal of the 11 C 6713 case. (Doc. 4). Patel’s Complaint

suggests that he believes that the case was dismissed through Lt. Hurd’s influence as part

of a larger pattern of retaliation. However, Judge Guzman’s dismissal order in that case

explicitly held that Patel failed to state a claim because Patel impermissibly sought to sue

his public defender under 42 U.S.C. § 1983. (Case No. 11 C 6713; Doc. 4). Public defenders,

Judge Guzman concluded, are not “state actors” under § 1983, and therefore cannot be

sued for damages. (Case No. 11 C 6713; Doc.4); accord Polk County v. Dodson, 454 U.S. 312,

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325 (1981). A retaliation claim requires “a causal link between the protected act and the

alleged retaliation.” Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (internal citations

omitted). As this Court previously held, there is no causal link between the protected

activity in the 11 C 6713 case and Lt. Hurd’s alleged retaliation. Lt. Hurd had no hand in

the dismissal of that case. The 11 C 6713 case was dismissed based on Judge Guzman’s

determination that Patel failed to state a claim, not out of retaliation for Patel exercising his

First Amendment rights.

This leaves only the claim that Lt. Hurd retaliated against Patel by opening his legal

mail and limiting his use of access to the law library. Prison officials have a duty to provide

prisoners with reasonable access to the courts, which includes providing reasonable access

to law libraries or counsel. See Bounds v. Smith, 430 U.S. 817, 821 (1977); accord Martin v.

Davies, 917 F.2d 336, 338 (7th Cir. 1990). “[T]he law requires only meaningful access to the

courts.” See Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004) (quoting Bounds, 430 U.S. at

823). Meaningful access does not mean unlimited access. See Martin, 917 F.2d at 338 (citing

Hossman v. Spradlin, 812 F.2d 1019, 1021 (7th Cir. 1987)). “It does not require any specific

resources such as a law library...” Lehn, 364 F.3d at 868. Rather, a prisoner must

demonstrate that the prison’s policy hampered his pursuit of a legal claim. See Lewis v.

Casey, 518 U.S. 343, 350 (1996); Bounds, 430 U.S. at 823; Ortloff v. United States, 335 F.3d 652,

656 (7th Cir. 2003). To determine whether prison administrators have violated a prisoner’s

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right of access to the courts, courts employ a two-part test. See Lehn, 364 F.3d at 868. First,

the detainee must show that “prison officials failed to assist in the preparation and filing

of meaningful legal papers.” Id. (quoting Brooks v. Buscher, 62 F.3d 176, 179 (7th Cir. 1995))

(internal quotations omitted) Second, “he must show some quantum of detriment caused

by the challenged conduct of state officials.” Lehn, 364 F.3d at 868 (quoting Brooks, 62 F.3d

at 179) (internal quotations omitted).

In order to avoid dismissal under Rule 12(b)(6), Patel must allege that he had a nonfrivolous legal claim that was frustrated or impeded by Lt. Hurd’s failure to assist him in

the preparation and filing of meaningful legal papers and that he was harmed by Lt.

Hurd’s action (or inaction, as the case may be). As Patel’s exhibits to his Complaint

evidence, Patel was given use of the law library at the jail. Although his use of the library

was limited, he states that he was routinely granted access within two weeks of making a

request. (See Plaintiff’s exhibits attached to his Complaint, Doc. 1). Patel’s Complaint

indicates that he did in fact receive access to the library, just not as much as he would have

liked. The Seventh Circuit has held that where a plaintiff has some access to the law

library, claims regarding lack of access to the jail law library are insufficient to state a claim. 

See Martin, 917 F.2d at 340 (where plaintiff “concedes he had access to the library at Cook

County Jail, although not as much as he would have liked...claims regarding lack of access

to the jail law library are insufficient to state claims for relief.”). A jail may set up a

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restrictive system whereby prisoners have limited access to the law library. See Hossman,

812 F.2d at 1021 (“Thus, where ‘meaningful’ access to the courts is not denied as the result

of inconvenient or even highly restrictive regulations governing the use of a prison law

library, no constitutional guarantee to court access is violated.”). So long as library

restrictions do not completely deny meaningful access to the courts, highly restrictive

regulations may be entirely appropriate and not violative of a prisoner’s constitutional

rights. See Brooks, 62 F.3d at 179. 

Assuming, however, that Lt. Hurd deniedPatelmeaningful access to legal materials,

Patel still cannot make out a claim because he cannot establish that Lt. Hurd’s acts

prejudiced him in any way with respect to the four federal lawsuits that Patel filed while

in federal custody. In other words, Patel has not alleged the necessary causation between

his exercise of protected activity and the alleged retaliation to make out a plausible

retaliation claim. An allegation of actual harm or detriment is an essential element of a

§ 1983 action for denial of access to the courts. See Martin, 917 F.2d at 340 (quoting

Hossman, 812 F.2d at 1021) (“this court has consistently required plaintiffs to make specific

allegations suggesting how his claimed inability to use the law library resulted in his being

denied ‘meaningful’ access to the courts and, hence, his constitutional rights.”) (internal

quotations omitted). The liberal notice pleading standards of Rule 8 govern denial-to-court

claims. “However, as applied to prisoners who claim they have been denied access to the

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courts, notice pleading requires plaintiffs to make specific allegations as to the prejudice

suffered because of the defendants’ alleged conduct.” Marshall v. Knight, 445 F.3d 965, 968

(7th Cir. 2006) (citing Ortloff, 335 F.3d at 656 (7th Cir. 2003); Martin, 917 F.2d at 340). The

Seventh Circuit has explained that “[t]his is because the mere denial of access to a prison

law library or to other legal materials is not itself a violation of a prisoner’s rights; his right

is to access the courts, and only if the defendants’ conduct prejudices a potentially

meritorious challenge to the prisoner’s conviction, sentence, or conditions of confinement

has this right been infringed.” Marshall, 455 F.3d at 968 (citing Lewis, 518 U.S. at 351)

(emphasis in original). 

Looking to this Court’s docket informationaswell as the electronic records available

on the Public Access to Court Electronic Records (“PACER”) website, it is evident that Lt.

Hurd did not prevent Patel from access to the courts, or cause him prejudice or detriment

of any kind. The Court may take judicial notice of facts drawn from public records

available on a government website under Federal Rule of Evidence 201(b) because “a

judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy cannot reasonable

be questioned.” Twombly, 550 U.S. at 592 n.11 (quoting Federal Rule of Evidence 201(b));

see also, e.g., Bova v. U.S. Bank, N.A., 446 F.Supp.2d 926, 930 n.2 (S.D. Ill. 2006) (a court may

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judicially notice public records available on government websites). Court documents are

public records that provide facts not subject to reasonable dispute because that are capable

of accurate and ready determination by resort to sources whose accuracy cannotreasonably

be questioned. See Hensen v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994) (a district

court may take judicial notice of public court documents in deciding a motion to dismiss). 

As the Court has already noted, Patel was not prejudiced by Lt. Hurd in connection

with the 11 C 6713 suit. Patel filed his initial lawsuit, his notice of appeal, and his in forma

pauperis applications to proceed as a pauper in the district court and on appeal. (Case No.

11 C 6713; Doc. 1; 3; 5; 6; 11). In addition, Patel was able to successfully file lawsuits in the

11 C 8862 case and the 11 C 8863 case. In both of those cases he successfully filed in forma

pauperis applications, status reports, and motions for the appointment of counsel. (Case

No. 11 C 8862; Doc. 1; 3; 6; 8; 18) (Case No. 11 C 8863; Doc. 1; 3; 6; 8; 19). Those cases were

dismissed for want of prosecution after Patel twice failed to appear in open court. Indeed,

Patel was warned the first time he failed to appear that failure to appear again would result

in his cases being dismissed. Therefore, the dismissal of the 11 C 8862 and 8863 cases, like

the 11 C 6713 case, was caused by Patel’s failure to prosecute his claims, not by the acts of

Lt. Hurd. Lt Hurd played no part in the dismissal of the 11 C 8862 and the 11 C 8863 cases. 

There is thus no causal link between the protected activity and the alleged retaliation. See

Woodruff, 542 F.3d at 551. The cases were dismissed for Patel’s failure to prosecute them,

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not because Lt. Hurd allegedly restricted Patel’s access to the law library at the jail or

intercepted his mail.

In addition to damages, Patel seeks “an injunctive order of protection prohibiting

Lt. Hurd from making any contacts with me, and also an injunction order to refrain the

Cook County mail department to tamper with my legal mail without my prescence [sic] is

unconstitutional.” Such an order is moot, as this Court was alerted on March 13, 2012, that

Patel’s address was changed from the Cook County Department of Corrections to an out

of custody address. (Doc. 13). Because Patel is not in the custody of the Cook County

Correctional Department, his petition for injunctive relief is moot. See Martin, 917 F.2d at

339 (citing Air Line Pilots Ass'n, Int'l v. UAL Corp., 897 F.2d 1394, 1396-1397 (7th Cir. 1990))

(“Because [Plaintiff]is no longerresiding at Cook CountyJail, enjoining defendants’ actions

against him would be of no effect, and therefore, his equitable claims against defendants

are moot.”)

Patel filed three suits with this Court, the instant suit and the 11 C 8862 and the 11

C 8863 suits. On March 29, 2012 the latter two suits were called for a status hearing. Patel

failed to appear. This Court warned Patel that failure to appear in a case that he is

attempting to prosecute may result in the case being dismissed for lack of prosecution. 

(Case No. 11 C 8862; Doc. 23) (Case No. 11 C 8863; Doc. 23). Thus, Patel was on notice that

failing to adhere to this Court’s orders may result in cases being dismissed for want of

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prosecution. Indeed, that is exactly what happened in those two cases. (Case No. 11 C

8862; Doc. 24) (Case No. 11 C 8863; Doc. 24). A plaintiff’s failure to respond to a motion to

dismiss that delays the litigation can be a proper basis for dismissing the case for want of

prosecution as a penalty for misconduct. See Bolt v. Loy, 227 F.3d 854, 856 (citing Link v.

Wabash R. Co., 370 U.S. 626, 629 (1962)). A judge should warn the plaintiff that she is

considering such a penalty, either explicitly or implicitly by making clear that the threat of

dismissal is an imminent possibility. See Matter of Bluestein & Co., 68 F.3d 1022, 1027 (7th

Cir. 1995); see also Bolt, 227 F.3d at 856. “Even without a warning, egregious misconduct

can be punished by dismissal.” Bolt, 227 F.3d at 856. In this case, Patel was previously

warned by this Court that failure to prosecute federal claims can result in dismissalfor lack

of prosecution. He was warned of this in the 11 C 8862 and the 11 C 8863 cases. Thus, Patel

was imminently aware that failure to respond to a motion could result in dismissal. 

Furthermore, Patel has flagrantly ignored the orders of this Court in three separately filed

cases. In two of those cases he was explicitly given a want of prosecution warning. After

those cases were dismissed, Patel continued to ignore the orders of this Court, including

that he appear at an initial status hearing for this case and that he reply to the instant

Motion to Dismiss. The continuous lack of respect for the orders of this Court constitutes

egregious misconduct. Therefore, in addition to the fact that Patel fails to state a claim, his

case is dismissed for want of prosecution as a penalty for misconduct.

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IV. Conclusion

For the reasons stated above, Patel cannot state a claim for a violation of his First

Amendment rights. Furthermore, having been twice warned by this Court that failure to

follow its orders may result in dismissal for want of prosecution, Patel has again failed to

follow the explicit orders of this Court by not responding to this Motion to Dismiss. 

Therefore, Patel’s case is alternatively dismissed for want of prosecution as a penalty for

misconduct. Therefore, The Defendant’s Motion to Dismiss is granted. 

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: May 30, 2012

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