omitted).

Plaintiff's inability to show prejudice stems [rom multiple deficiencies in his presentation
to the court. First, he has sct forth no real argument or evidence concerning Row the confiscation
of the letter allegedly affected his attorncy’s ability to cross-examine or impeach Dr. Heaton at
the July 17, 2001 hearing. In the letter, Dr, Underwager stated that Dr. Heaton had recently
perjured himself by falscly lestifying that he was certified in HARE PCL, Under the Federal
Rules of Evidence (and corresponding INinois law). the letter is a classic example of inadmissible
hearsay. Even setting that deficiency aside, plaintiff did not provide any cvidence that the HARE
PCL tool was used by Dr. [eaton mn formulating his opinion concerning plaintiff.

Moreover, plaintiff cannot show that the confiscation of the letter caused him to fail in his
supposed claim for discharge or conditional release, First, he bas made no showing that asking
Dt. [eaton whether he previously falsely testified that he was certified in TARE PCL or, even
successful impeachment of Dr. [eaton on that point, would have changed the outcome of the
July 17, 2001 hearing. (Indeed, the record does not reveal what the outcome, if any, of that
specific hearing was.) There is no evidence concerning whether and to whal extent the slate
court relied upon Dr. Heaton’s opinion on that date, especially in light of plaintiff's stipulation
several months earlier to the State’s SVP petition, In sum, plaintifi’s bare speculation, as set
forth in his brief, that “possible use” of the letter to impeach Ir, Heaton could have “perhaps
secure[d| his release” is insulficient to create a triable fact issuc and defeat defendants’ motion.
See, e.¢., Boreky v. Maytag Corp.. 248 13d 691, 695 (7" Cir, 2001) (speculation is insuflicient
to defeat summary judgment).

Plaintiff's effort to show prejudice fails for another independent reason, as he admits that

19


exceptions to the SOP and permitted residents to communicate with them via the Facility’s
administrative lines,

From June 1, 1998 through March 31, 2003, the Facility (including when it cxisted as a
separate unit at Sheridan) utilized a collect cal} system under which residents wishing to place a
collect call dialed the number directly. The tclephone provider at Sheridan was Consolidated
Public Services. Upon the transfer of the Facility to Joliet, Ameritech became the provider of
focal telephone equipment and service, as well as the provider of collect call services. MCT
became the lost-distance service provider from March 2000 until March 31, 2003. On Apmil J,
2003. Consolidated Public Servives became the provider of both local and long-distance services
at the Facility.

Plaintiff has claimed that he began experiencing tclephone problems after the switch from
Ameritech to MCL. Specifically, on one occasion, he attempted to place a telephone call to Cygal
and received a recorded message stating, “At the request of customer, no collect calls can be
made to this number.” Plaintiff was subsequently comected to a live operator, whom he told that
he was attempting to contact his attorney, The operator stated that she could not process the call
and that plaintiff would need to speak to his warden or director. Subsequently, the same day, he
successfully telephoned another attorney at Cygal’s firm, who connected him to Cygal. At that
time, plaintiff had no pending court dates jn federal court. Ln October, 2000, plaintiff filed a
motion in court in Madison County (where his commitment proceedings are ongoing) requesting
a court order concerning the alleged blocking of his telephone calls,

At his deposition, plaintiff claimed that he was again unable to telcphone Cygal under the

current system, Vollowing the Facility’s switch to a new tclephone vendor on April 1, 2003, the

13


confiscated documents that they believed were not related to plaintiff’s pending habeas case:
although the documents actually may have been relevant to plaintiff's habeas case, the incident
could be attributed (o “mere overzeal, mistake, or lack of due care,” and there was no indication
of “an intentional denial of access to the courts”).

Here, it is undisputed that defendants Bierman and Powell do not even recall confiscating
the letters from Dr. Underwager. Moreover, it is undisputed that they did not know that plaintiff
had an upcoming commitment hearing scheduled for July 17,2001. On the record evidence,
plaintiff cannot prove that their action in confiscating the letters constituted an intentional
deprivation of his right of access to the courts, His claim fails for this additional and independent
reason. See Kincaid, 969 F.2d at 602.

bh. Count I Fails as a Matter of Law.

Count Il of the complaint is premised upon defendant Budz’s alleged blocking of
plaintiff's telephone calls. Plaintiff claims that the blocking of his calls to his attorneys deprived
him of his constitutional right of access to the courts.

In their opening memorandum, defendants argued that, on the undisputed facts, Count IT
of the complaint fails as a matter of law. In responding to defendants’ motion for sammary
judgment, plaintiff failed to contend otherwise and/or to assert any legal argument in support of
his claim. He makes only one reference lo the claim, itself, in his entire brief, and it is merely a
passing reference to the fact that he had alleged the blocking of telephone calls.

Plaintiff thus abandoned the claim set forth in Count 11 of the complaint, and summary
judgment in defendants” favor is proper as to that claim. See, ¢.g., Laborers’ Int'l Union of N.

Am. v. Caruso, 197 F.3d 1195, 1197 (7* Cir, 1999) (stating that arguments not presented to the

N


specific references to affidavits, parts of the record, or other evidentiary materials. See LR 56.1.

When a party fails to admit or deny a fact in the manner prescribed by the Loca} Rules,
the fact shall be deemed admitied. See LR 56.1(b)(3)(B); see also Federal Trade Commission y.
Febre, 128 F.3d 530, 536 (7" Cir, 1997) (holding that district courts may deem party’s facts
admitted where adverse party fails to properly admit or deny the same). In short, “[a]n answer
that does not deny the allegations in the numbered paragraph with citations to supporting
evidence in the record constitutes an admission.” Jupiter Aluminum Corp, v. Lame ns. Co,, 225
F.3d 868, 871 (7 Cir, 2000) (internal quotations and citations omitted).

Rather than admitting or denying defendants’ facts properly, plaintiff alternatively: (1)
admitted portions of fact paragraphs, but failed to admit or deny the remainder of those
paragraphs; (2) declined to admit or deny facts on the grounds that he lacked the requisite
“personal knowledge;” (3) simply stated that he “agrees” with certain facts; (4) admitted certain
facts, but nonetheless stated that he “takes exception” to them because of other additional facts
that he believes are important; and (5) admitted “facts” different from those specifically set forth
by defendants, ‘This court deems all such facts admitted, See, e.g., Jupiter, 225 V.3d at 871,
MeGinire v. United Parcel Service, 152 3d 673, 675 (7" Cir. 1998); Febre,128 F.3d at 536,

Moreover, in setting forth his own statement of additional facts, plaintiff frequently cited
his complaint as support for his asserted facts. This tactic is improper and insufficient at the
summary judgment stage. It is wel) settled that, to withstand a motion for summary judgment,
the non-moving party must go beyond the pleadings and point to competent record evidence
establishing the existence of a genuine fact issue for trial, See Cefotex, 477 U.S, at 324. Indeed,

Ved. R. Civ. P. 56(e) provides, “When a motion for summary judgment is made and supported as


his loss of the letter was “temporary,” and the record {acts demonstrate that it was, in fact,
illusory. Plaintiff has been represented by counsel in both his ongoing federal civil case and his
ongoing commitment hearings. As was plaintiff's practice when he received such materials, he
forwarded the letter to Cygal after he received it so that Cygal could make a copy for himse]f, and
Cygal subsequently sent the document to plaintiff.

When plaintiff filed his complaint in the instant action in August 2001 (Little more than
one month after the confiscation of the letter), Cygal provided a copy of the letter to plaintiff so
that plaintiff could attach it to the complaint. Plaintiff has provided no explanation for why, if he
and/or his Griffin, commitment counsel, needed or wanted a copy of the Jetter for the July 17,
2001 hearing, they did not simply retrieve it from Cygal at that time (as plaintiff did several
weeks latcr), There is no evidence that he attempted, but failed, to retrieve the letter from his
attorney for the July 17" hearing. The record thus indicates that Cygal had possession of the
letter all along.

The alleged loss of the document did not prejudice plaintiff in his ability to present his
claim because he could have retrieved the document from his civil attorney. Plaintiff's “loss”
was not meaningful on a practical level or for constitutional purposes. Cf, Musgrove, 2003 U.S.
App. LEXIS 17700, at *6-8 (upholding grant of judgment as a matter of law on prisoner’s
access-to-courts claim on grounds that plaintiff suffered no actual injury; plaintiff could have
tetrieved a document containing the relevant facts, as compared to the facts contained in the
conliscated documents, from cither the court or his attorney and, thus, could have filed his
fawsuit without the missing documents); Carr v. McGinnis, No, 91-3602, 1993 U.S. App. LEXIS

30897, at * 4-5 (7" Cir, Oct. 19, 1993) (upholding grant of summary judgment on prisoner’s

20)


Most fundamentally, plaintiff cannot show prejudice because he cannot establish that his
underlying claim ~ that he was no longer “sexually violent” or that he was entitled to release
from the Facility - was nonfrivolous, [Te has presented no evidence from which a jury could
conclude that such a claim was nonfrivolous. In light of the above facts — chief among them, that
he is still committed to [DH$’s custody as an SVP and still residing in the Facility — it is difficult
Ww imagine that he could have done so. In any event, because plaintiff! has presented no evidence
that his underlying claim was nonfrivolous, he cannot show prejudice. and his claim fails as a
matter of law, See, e.g, Musgrove, 2003 U.S. App. LEXIS 17700, at *11 (upholding grant of
judgment as a matter of law on grounds that, even if deprivation of documents had hindered
plaintiffs ability to file lawsuit, plaintiff offered no evidence that the lawsuit would not have
been frivolous, and “hindrance of a frivolous claim cannot result in actual injury”).

e Defendants’ intent

Plaintiff's claim also fails because he did not point to sufficient evidence to establish that
defendants acted intentionally to deprive him of his right of access to the courts. Plaintilf argued
in his brief, “[d]efendants had no reasonable basis for confiscation of his legal documents and
therefore their actions in confiscation [sic] of plaintiff's legal documents amounted to an
intentional action interfering with plaintif!’s access to court and was a constitutional violation.”
As a matter of simple logic, the sheer “reasonableness” of defendants’ action is not a patent
indicator of their intent, let alone dispositive of the issue. Cf, Clayton-El v. Clark, Nos. 01-
2454, 92-4153, 1992 U.S. Dist. LEXTS 22220, at *7 (C.D, Ill. Dec. 3, 1992) (granting summary

judgment to defendants on plaintiff's access-to-courts claim, based in part on fact that defendants

alleged blocking of his telephone calls — by fiting a motion in court in Madison County, where his

commitment proceedings are ongoing,
22


alter his legal status. Thus, only the temporary deprivation of the July 10, 2000 letter from Dr.
Underwager to plainti(f concerning Dr. Heaton is at issue.

It is well settled that the taking of legal documents necessary to litigate pending claims
may form the basis for a claim of denial of the right of access to the courts, See, ¢.y., Brownlee
v. Conine, 957 F.2d 353, 354 (7" Cir, 1992). Llowever, plaintiff's claim fails as a matter of law
on several independent grounds. Ata minimum, he has failed to create a genuine issue of triable
fact concerning three required elements of his claim: (1) whether he was pursuing an underlying
claim or defense; (2) whether contiscation of the letter caused him cognizable injury or prejudice:
and (3) whether defendants intentionally caused the alleged deprivation of his access to the
courts.*

2. Plaintiff’s Claim Fails as a Matter of Law
a. Underlying claim or defense

Setting aside the Jack of clarity concerning the contours of plaintiff's claim, he has not
pointed (o sufficient record evidence to show thal he was pursuing a claim or defense in July
2001, ‘There is no evidence indicating that plaintifT was actually pursuing any claim or defense at
that stage -- merely three months alter he had waived his right to trial, stipulated to the State’s

SYP petition, and consented lo his own commitment as an SVP. Although plaintiff's argument

8 Because of certain contradictory facts admitted by plaintiff and defendants via their failure to
comply with the Local Rules, the court could conclude that the two July 2000 letters were submitted by
plaintiff for duplicating and not returned to him, but that there is no evidence that defendants Bierman
and Powell confiscated or, in fact, bore any responsibility for the disappearance of, the documents.
However, because plaintiff's claim fails on numerous other independent grounds, it is unnecessary for
the court to reach this issue. (Instead, the court will assume that it is undisputed that all four documents.
were confiscated and that plaintiff can establish “defendants” action” in the relevant sense.) For the same
reason, it is unnecessary for the court to address whether plaintiff can establish that defendants’ action
was “unreasonable” or “unjustified.”



resident copier. They were also required to pay for the copies either with money or with “points”
earned at the Facility.

Generally, STA Is bore responsibility lor oversecing the resident copiers. Prior to any
copies being made, the STA Is scanned the material to be copied for contraband (including
pomography). Subsequently, the resident copier made the copies and provided the original
documents and copies to the requesting resident. Photocopying typically took place on the third
shift.

G. The Events of July 12, 2001

Plaintiff believes that he was deprived of certain documents after he submitted them on
July 12, 2001 for duplicating at the Facility.

On July 12, 2001, both defendant Bierman and defendant Powell worked on the third
shift, which lasted 10:45 p.m. to 7:15 a.m. On that date, defendant Bierman was assigned
responsibility for monitoring the resident who made photocopies for other residents (the
“resident copier”). Plaintiff gave 184 documents to Harry Cain, the resident copier on that date,
to be photocopied on behalf of resident Michael Lewis. Cain possessed a form indicating that
copies were to be made tor Lewis. Plaintilf did not submit a photocopy request form in his own
name.

{lowever, Cain told defendant Bierman that plaintiff gave him materials to be duplicated
for Lewis. In fact, plaintiff did not fill out a request form because he was indigent and did not
have the money to pay for the copies, Lewis offered to obtain the copies for plaintiff because he
had the money and the points necessary to do so.

Defendant Bierman scanned the documents and noticed something unusual about


aggravated criminal scxual assault and sentenced to fifteen years in the Illinois Department of
Corrections (“INOC”). He served all or part of his sentence within [DOC before he became a
civil detainee at the Facility.

During the relevant time period, the Iinovis Department of Human Services (“IDHS”)

employed defendants at the Facility ~ Bierman as a Security Therapy Aide I ( STA 1”), Powell as
a Security Therapy Aide Il (“STA TT”), and Budz as the Director,

Cc ‘The Sexually Violent Persons Act

Dlinois Jaw provides a procedure by which the State may petition for the commitment of
an individual who has been convicted of a sexually violent offense and is anticipated to be
released from imprisonment or anticipated to enter into mandatory supervised release, on the
grounds that he is a “sexually violent person” (“SVP”). See Sex ually Violent Persons Act, 725
ILCS 207/1, ef seg. (“the Act”). Thereafter, the individual is subject to commitment procecdings,
which are civil in nature. See 725 LLCS 207/20,

The Act accords certain procedural rights to individuals who are the subject of petitions
under the Act, which include the right to be present and to be represented by counsel, the right to
remain silent, the right to present and cross-examine witnesses, and the right to receive a jury
trial. See 725 ILCS 207/25, Ifthe jury or the court determines that the individual is a “sexually
violent person,” the Act requires the court to enter a judgment on that finding and commit him.
See 725 ILCS 207/35; see also 725 ILCS 207/40.

Specifically, the person must be committed to IDHS’s custody for control, care, and

“SF the jury or the court is not satisfied beyond a reasonable doubt that the individual is an SVP,
the Act requires the court to dismiss the petition and direct the individual's release (uniess he is
otherwise being lawfully held or restricted), See 725 ILCS 207/35.

6


provided in this rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party’s pleading.” As such, those factual assertions set forth by plaintiff and supported
by citation to his complaint have been disregarded by the court. See afso Bliss v, Jennifer
Convertibles, Inc., No. 01 © 8661, 2003 ULS. Dist. LEXIS 17435, at *44 n.14 (N.D. Ill. Sept. 30,
2003) (stating that plaintiff could not rely upon his complaint as “evidence” at the summary
judgment stage).'

Plaintiff also cited numerous free-standing, unauthenticated documents in support of his
statement of additional facts. As presented to the court, these documents do not constitute
competent record evidence and do not suffice to create a genuine issue of material fact. See
P.R.E. 901. The cited documents suffer from additional evidentiary deficiencies and, even
setting aside all of their evidentiary deficiencies, do not suffice to create a genuine issue of
material fact.

Defendants algo (ailed to admit or deny several fact paragraphs properly. Specifically, in
several instances, rather than expressly admitting or denying fact paragraphs, defendants simply
admitted that plaintiff testified to the statements set forth therein, All such facts are deemed
admitted, as well. See, ¢.g., Jupiter, 225 F.3d at 871; McGuire, 152 3d at 675; Febre, 128 F.3d
at 536.

B. The Parties

Plaintift is currently a civil detainee in the Sexually Violent Persons Unit al the Itinois

Treatment and Detention Facility in Joliet, [Ilinois (“Facility”). He was previously convicted of

' Defendants’ responses to the subject paragraphs (i.¢., bare admissions to the effect (hat the
complaint contained the same statements) were also improper. See LR $6.1, However, because those
paragraphs were not supported by competent record evidence in the first instance, defendants will not be
faulted for their failure to comply with the Local Rules in responding to them.

5


suggests that he was then pursuing a claim that he was not a “sexually violent person,” he has not
presented any evidence to prove that he was asserting such a claim. See generally Fed. R. Civ, P.
56 & L.R. 56.1 (setling forth plaintiffs burden at summary judgment and corresponding
evidentiary requirements), Plaintiff's claim, therefore, cannot even get off the ground. Cf,
Christopher v. Harbury, 536 U.S, 403, 122 $. Ct. 2179 (2002) (upholding dismissal of aecess-to-
courts claim, in part because plainti(f failed to identify the underlying claim allegedly precluded
by the government’s action and its lost remedy; underlying claim is required clement of this
cause of action).
b. Prejudice

Even if plaintiff had provided su/ficient identification and evidence of his underlying
claim (and assuming that he was secking either discharge from IDITS custody on the grounds that
he was no longer an SVP or conditional release from the Facility), he has failed to present
sufficient evidence to demonstrate injury or prejudice. “[G]cneral allegations of prejudice are
insufficient” even to withstand a motion to dismiss within the Seventh Circuit. Oriloff, 335 13d
at 655-56 (upholding dismissal of 1983 action where plaintiff alleged that “confiscation, seizure,
and destruction of his legal materials severely prejudiced and adversely affected his ability to
prosecute at (cast three pending lawsuits”). The types of harm that can satisfy the prejudice
requirement include. “missed court deadlines, failfure] to make timely filings,” or dismissal of
legitimate claims, caused by the defendant(s)’ actions. Ji., at 656. See also Martin, 917 F.2d at
340 (claim fails where plaintiff “offers no specific facts to support these allegations fof
prejudice | ~ no court dates missed; no inability to make timely filings, no denial of legal

assistance to which he was entitled; and no loss of a case which could have been won”) (citations

18


Griffin, plaintiff's counsel in connection with his commitment proceedings, was present on any
occasions on which plaintiff, himself, was not. Plaintiff alleged in his complaint that these
proceedings are ongoing.

KE. Plaintiff’s Other Litigation

In 1999, plaintiff filed a civil lawsuit (Davis y, Budz, Case No. 99 C 3009), in which he is
also represented by counsel, Everett Cygal. That case has been consolidated with another case
and is still pending in the United States District Court for the Northern District of Illinois,

Plaintiff testified at his deposition that whenever he receives documents, he sends them to
Cygal, who makes copies for himself’ and then sends the documents to plainti te?

F. Background Concerning the Facility

The Facility was previously housed as a separate unit at the Sheridan Correctional Center
(“Sheridan”). fhe State moved the Facility to its current location in Joliet in December 2000.

During the relevant time period, Security Therapy Aides (“STAs”) bore responsibility for
the care and security of the residents, staff, and physical facility. Defendant Bierman, an STA |,
was a “back rover,” responsible for tasks performed in the back area of the Facility (including
preparation of writs and duplicating). Defendant Powell, as an STA II, had supervisory
responsibility over the STA Is, including defendant Bierman,

When residents wanted to obtain photocopies of documents in their possession, they were
required to follow a certain procedure. The Facility assigned certain residents responsibility for
secuting photocopies for other residents (“resident copiers”). To obtain copies, residents were

required to fill out a request form and provide the form and the documents to be copied to the

4 Neither party cited this fact or the underlying testimony.
8


district court in response to summary judgment motions are waived); Pugh v. City of Attica,
Indiana, 259 F.3d 619, 624 n.3 (7" Cir, 2001) (same); Donelson v. City of Chicago, 272
L.Supp.2d 717, 726 (N.D, TM. 2003) (treating plaintiff's harassment claim as abandoned where
she merely contended that she was harassed, but provided no legal arguments in support of the
claim and “ma[de| no serious efforts to respond to the [defendant's] argument against it” in her
summary judgment opposition bricf).

Indeed, plaintiff has failed even to delineate his claim, leaving the court with only the
vague assertions in his complaint to the effect that defendant Budz deprived him of his ability to
make outgoing telephone calls to his attorneys for some period of time of unspecified duration
ending approximately three months before he filed his complaint, Summary judgment is proper
for that additional, albeit related, reason. See Palmer v. Marion County, 327 F.3d 588, 597-98
(7" Cir. 2003) (deeming appellant's negligence claim abandoned, in part because he failed to
delineate the claim in his district court brief in opposition to a motion for summary judgment)
(citations omitted).

Liven if the court were to consider the merits of plainti!s abandoned claim, the record
docs not contain sufficient evidence to support the claim, and it would fail as a matter of law."
1V, Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted, and

plaintiff’s complaint is dismissed in its entirety.

© Because the court finds that plaintiff cannot as a matter of law establish that any constitutional
Violation occurred, it is unnecessary to address defendants’ arguments concerning whether they are
entitled to qualitied immunity, whether the Eleventh Amendment operates to bar suit against them in
their official capacities, and whether defendants Bierman and Powell had personal involvement in the
events underlying Count II
24



ba

Mince: Onder For (06/97)

Gale

United States District Court, Northern District of Tllinois

| Name of Assigned Judge David H. Coar Sitting Judge if Other
| or Magistrate Judge . than Assigned Judge
CASK NUMBER 01 C 6658 DATE 1/20/2004
CASE
TITLE Davis v. Bierman, et al.
(ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defcndant, 3rd party plaintitf, and (b) state briefly the nature
MOTION: of the motion being presented.]
as ee |
Defendants’ Motion for Summary Judgment
J
DOCKET ENTRY:
(ap) Oo Filed motion of [ use listing in “Motion” box above.] |
(2) Q Brief in support of motion due.
QB) oO Answer brief to motion due____. Reply tu answer brief'due__
(4) oO Ruling/Hearing on Set for, at
(5) Q Status hearing|held/continued to] [sel for/re-sct for] on set for at.
(6) o Pretrial conference[held/continued to} [sect for/re-set for]on_ set for at.
(7) a) Trialfset forfre-set for}on__at|
(8) Oo {Bench/Jury trial] [Hearing] held/continuedto__—_at_
(9) a ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COPRCP4(m) OC Local Rule 41.1 CFROPAL(a\(1) Ol FRCP41(a\(2).
(10) a [Other docket entry] For the reasons set forth in the attached Memorandum Opinion and Order,
defendants’ motion for summary judgment is granted. This case is close
»
7
(i) |For further detail see order attached to the original minute order.)
No notices required, advised in open court, Document
- Number
No notiges required. nuvaber of wxices
Notices mailed by judge's stat’.
Notified counsel by telephone AN BA 2004
oY | Docketing to mail notices. ,
av | Mail AO 430 form.
Copy to judge/magistrate judge,
courtroom
edie deputy's
initials
Dateftime seeeived in
central Clerk's Office woting puny inital



17, 2001.

In addition to the above two documents. plaintiff believes that defendant Bierman
confiscated two more (claiming that they were removed outside of Cain’s presence).

Specifically, he has alloged that defendant Bierman also conliscated a two-sided document
containing two letters addrcssed to him at the Facility (rom Ralph Underwagcr, Ph. D,, dated July
10, 2000 and July 23, 2000, respectively. Examination of the parties’ statements of facts and
admissions (both explicit and by operation of the Local Rules) dictates that the court must
assume for purposes of defendants’ motion that the July 10" and 23" letters were also included in
the documents submitted by plaintilf for duplicating and that they were not returned Lo him. See
infra, n. 8.

The first letter from Dr. Underwager to plaintiff stated that Dr. Heaton had perjured
himself at a recent trial by falsely claiming that he was certified in the use of the Hare
Psychopathy Check List (“Hare PCL”). The second letter from Dr. Underwager to plaintiff
stated that state psychologist Dr Jacqueline Buck was not certified in the use of the Hare PCL
and that numerous psychologists im Wlinois were claiming that they could perform sexual
predator commitment evaluations, but not all psychologists are qualilied to do so.

Cygal, plaintiff's federal civil attorney, did not provide the documents to plaintiff.

Rather, they were addressed directly to plaintiff at the Facility. As was his custom, upon
receiving the letters, plaintiff forwarded them to Cygal so that he could make copies, and Cygal
subsequently returned the documents lo plaintiff. Thus, plaintiff's deposition testimony

concerning this matter establishes that Cygal possessed his own copies of these two documents.

Indeed, the two letters were attached as exhibits F and G, respectively, to plaintiff's August 21,

mt


multiple documents. [Je showed his findings to defendant Powell. In Cain’s presence, defendant
Powell instructed defendant Bierman to confiscate the documents so that the administration
could determine whether plaintiff should possess them,

The parties dispute the precise number of documents subsequently confiscated by
defendant Bierman (rather than being returned to plaintiff along with the remainder of the
documents he submitted). Defendants contend that defendant Bierman confiscated only two
documents: (1) an IDHS sign-in sheet dated Saturday, May 19, 2001, which contained the names
of doctors and therapists who worked at the (acility that day; and (2) a room roster of the
residents at Sheridan. Plaintiff agrees that defendant Bierman confiscated those two documents.
Further, it is undisputed that defendants Bicrman and Powell do not recall confiscating any other
documents, Consistent with their testimony, at plaintiff's request, Cain executed an affidavit
stating that defendant Bierman confiscated two documents.

Cygal, plaintiff's attorney in his ongoing 1999 federal civil case, had obtained those two
documents through the discovery process and forwarded copies thereof to plaintiff. Defendants
considered the documents to be contraband. The documents belonged to the therapists, and
residents were not permitted to enter into the area in which the therapists’ documents were
located. Defendants Bierman and Powell were also concerned with how plaintiff had obtained
the sign-in sheet and the room roster’ At defendant Powell’s instruction, defendant Bierman
wrote an incident report regarding the confiscation of these two documents and attached the

documents to the report. The sign-in shect and roster shect were returned to plaintiff on August

5 Defendants Bierman and Powell contend that plaintiff's possession of the room roster
constituted a breach of security, but plaintiff secks to dispute that contention by pointing to the fact that
the document was later returned to him. This dispute is immaterial.

10


treatment until such time as he is no longer an SVP. See 725 ILCS 207/40(a). The commitment
order must specify either institutional care in a secure facility or conditional release. See 725
ILCS 207/40(b). ‘The court may, in its discretion, continue the hearing after entering a judgment
that the person is an SVP for the purpose of obtaining more information to make that
determination. See 725 TLCS 207/40(b)(1).

Individuals who are committed as SVPs are periodically re-cxamined pursuant Lo the Act.
725 ILCS 207/55. Individuals committed to the custody of the IDHS who are being held ina
secured facility as SVPs may petition for conditional release, 725 TLCS 207/60. Moreover.
individuals committed as SVPs may also petition for discharge from the custody of IDHS on the
grounds that they are no longer SVPs. 725 I1.CS 207/65.

D. Plaintiff's Commitment Pursuant to the Act

After plaintiff had served part or all of his sentence within IDOC for his conviction on
aggravated criminal sexual assault, the State petitioned to have him commitied as an SVP (in Re
Commitment of karl Sidney Davis. Case No. 98 MR 404). On April 9, 2001, while in court in
Madison County, Llinois, for his commitment hearing, plaintiff waived his right to a trial and
stipulated to the allegations contained in the State’s SVP petition. Accordingly, he was
committed to IDHS’s custody as a sexually violent petson. Plaintiff was represented by counsel,
Steven D. Griffin, at his commitment hearing.

A dispositional hearing was held on July 17, 2001. At that hearing, Dr. Paul Heaton
testified for the State and rendered his opinion that plaintiff should be placed in a secure setting.

Following that date, plaintilf had several additional court dates concerning his commitment.

__

> The Act provides that the Department may enter into an agreement with IDOC for the provision
ofa secure facility to house individuals committed under the Act. See 725 ILCS$ 207/50.


access-lo-courts claim on grounds that plaintiff suffered no detriment to pending litigation;
confiscation of plaintiff’ s legal file did not prevent plaintiff from responding to motion for
summary judgment in pending litigation, as plaintiff was able to prescnt the material acts of his
case on the basis of his personal recollections and thus could have submitted an affidavit based
on personal knowledge. in lieu of submitting the confiscated documents).

Even setting aside all of these independent deficiencics in plaintiff's claim, he still has
Jailed to show actual injury through detriment to pending litigation. Plaintiff has been to state
court for proceedings relating to his commitment several times since the July 17, 2001 hearing.
He has been represented by counsel in connection with his commitment hearings, which he
alleges are ongoing, Furthermore, under the clear terms of the Act, plaintiffcan readily return to
stale court to challenge his commitment or his confinement. [He has not provided the court with
any evidence that he has sought to raise the issue concerning Dr, Heaton’s potential perjury or
sought an opportunity to impeach Dr. Heaton on this point at any such proceeding, These facts

(urther establishes his inability to show actual injury caused by defendants’ conduct. Ch,

Armstrong v, Meyer, No. 92-2157, 1993 U.S. Dist, LEXIS 20425, at *11-13 (CLD. IIL. May 6,
1993) (granting motion for summary judgment on prisoner's access to the courts claims on
grounds that: (1) confiscated documents pertained to state court case that was stil] pending and
plaintiff had filed claim for relief in that court, and (2) other confiscated documents pertained to
claims in lawsuit plaintiff intended to, but did not, file, which claims he later pursued in

subsequent litigation; plainti{f therefore “failed to show any adverse rulings or other detriment”

caused by the defendants’ challenged conduct.”

“tt is also worth noting that plaintiff has presented no evidence suggesting that he sought to
challenge the confiscation of his documents in the same manner in which he sought to challenge the
21
2



Taust be evidence on which the jury could reasonably find for the {hon-movant].”. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 8. CL. 2505, 2510 (1986). Summary judgment must
be entered against a party who [ails to establish the existence of an element essential to his case
and on which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322.

I. Factual Background

A The Parties’ L.R. 56.1 Submissions

In responding (0 defendants” statement of material facts, and in setting forth his own
statement of additional (acts, plaintiff substantially failed to follow the dictates of the Local
Rules, To a lesser extent, defendants failed to follow the Local Rules in responding to plaintiff's
statement of additional facts.

LR 56.1 requires the moving purty to set forth a statement of material facts consisting of
numbered paragraphs supported by specific references to aftidavits, parts of the record, or other
evidentiary materials. See LR 56.1(a). The hon-moving party must then respond with a
Statement cither admitting or denying the moving party’s numbered facts paragraphs,
Specifically, LR 56.1 requires that the hon-moving parly respond to each paragraph and, where
he disagrees, provide specific references to affidavits, parts of the record, or other evidentiary
materials to support his disagreement. See LR 56.1 (b)(3)(A),

The same rules apply to the non-moving party’s LR 56.1(b)(3)(B) statement of additional
facts and 1o the moving parly’s response thereto. That is, the hon-moving party’s statement of
additional facts must also consist of numbered paragraphs supported by specific references to
affidavits, parts of the record, or other evidentiary materials, Likewise, the moving party must

support any stated disagreement with the non-moving party’s additional facts by providing,


Vacility began to utilize a new collect call system requiring Tesidents to use a personal
identification number (“PIN”). Residents were required to submit a list of up to 30 individuals
whom they wished to call, and they could amend their phone lists at any time.

Plaintiff completed the necessary paperwork on or about March 31, 2003, and as of May
1, 2003, he had received a PIN. Plaintiff was able to communicate with Cygal through the mail
during the time he claims he was unable to telephone him (and there is no indication in the record
that he was ever unable to do so).

Ill. Analysis

A Count I Fails as a Matter of Law,

Count I is premised on the July 2001 confiscation of the sign-in sheet, the roster shect,
and the two July 2000 letters written by Dr. Underwager to plaintilf. Plaintiff claims that
defendant Bierman’s confiscation of those documents deprived him of his constitutional right of
access to the courts.

In Bounds y. Smith, 430 U.S. 817, 97 8, Ct. 1491 (1977), the Supreme Court established
that prison inmaics possess a constitutional right of access to the courts. Subsequent Supreme
Count jurisprudence clarifying the contours of that right has made clear that states must not
impede prisoners’ efforts to pursue legal claims, but have no obligation to enable prisoners “to
discover grievances |or] to litigate effectively once in court.” Lewis v. Casey. 518 U.S. 343, 350,
352-53, 116 8. CL. 2174, 2179, 2181 (1996).

“To prove a violation of (the constitutional right of access to the courts], a plaintiff must
demonstrate that state action hindered his or her efforts to pursue a non-frivolous legal claim and

that consequently the plaintiff sutlered some actual conerere injury.” May v. Sheahan, 226 F.3d

14


confiscation of the documents “prevent[ed] their use in court by the plaintiff or his attorney,
amounting] to actions on the part of (he defendants that impeded the plainuff’s efforts to pursue
a legal claim or defense.”

The only other delineation of plaintiff's claim came via his admission that he had already
been committed as an SVP at the time of the July 17, 2001 hearing. On April 9, 2001, plaintiff
waived his right to a trial and stipulated to the state’s SVP petition; thus, he was committed to
IDHIS’s custody as an SVP that day. Notwithstanding his admission, plaintiff contended in his
bricf:

Plaintiff's purpose in providing his attomey with the Underwager letters

was to provide evidence of perjured statements made by Dr. Lleaton, the State

psychologist and expert whose opinion is used to determine whether the plaintiff

is vexuatly violent und whether he should remain committed as a sexuaily violent

person, It cannot be said that plaintiff was pursuing a frivolous claim under the

circumstances. Defendants [sic] actions in confiscation [sic] of his legal

documents interfered with his ability to prepare his defense and perhups secure

his release.

(Emphasis added), Although this argument is not entirely coherent. it suggests that plaintiff's
claim is this: if Dr. Heaton had been impeached with the help of the confiscated documents, the
court might have concluded that plaintiff was not an SVP, and plaintiff, therefore, might have
been released from IDHS custody.

As an initial matter. plainti{f has abandoned any claim concerning the sign-in sheet and
the roster sheet by wholly failing to respond to defendants’ arguments concerning the same (other
than to concede that defendants may have acted “reasonably” in confiscating those documents
from him). Morcover, he has not sought to allege, Jet alone explain, how the temporary

deprivation of those documents, or of the fetter relating (o Dr. Buck, hindered his attorney’s

ability to cross-examine Dr. Heaton, to secure his discharge from IDHS custody, or to otherwise

16


———————<<————

For the reasons set forth below, defendants’ motion for summary judgment in their favor
is granted, and the complaint is dismissed in its entirety.
1 Summary Judgment Standard

At summary judgment, the court must view the facts in the light most favorable to the
nommoving party and draw all reasonable inferences in its favor. See, e.g., Krchnavy v.
Limagrain Genetics Corp., 204 ¥.3d 871, 875 (7 Cir. 2002), Summary judgment is appropriate
if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there 15 no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Schuster v.
Lucent Technologies, Ine., 327 F.3d 569, 573 (7" Cir. 2003) (quoting Fed. R. Civ. P. 56(c)). A
triable fact issue exists “only if there is sulficient evidence favoring the nonmoving party fora
jury to return a verdict for that party.” Schuster, 327 F.3d 569, 573 (7" Cir, 2003) (quoting Wade
y, Lerner New York, Inc. 243 F.3d 319, 321 (7 Cir. 2001) (quotation omitted)).

The movant bears the initial burden of establishing that there is no genuine issue of
material fact. Celotex Corp. vy. Catrett, 477 US. 317, 323, 106 $. Ct. 2548 (1986). “Because the
purpose of summary judgment is to isolate and dispose of factually unsupported claims,” the
non-movant must then present specific facts showing that there js an issue for trial, Michael v.
Si, Joseph County, et al. 259 V.3d 842, 45 (7" Cir. 2001) (quoting Fed. R. Civ. P. 56(e)). “To
successfully oppose the motion, the non-movant cannot rest on the pleadings alone, but must
designate specific facts in affidavits, depositions, answers 10 interrogatories, of admissions that
establish that there is a genuine triable issue, Celotex, A477 US. at 324. A scintilla of evidence in

support of the non-movant’s position is insufficient to defeat a summary judgment motion; “there

i)



Enter:

David H. Coar
United States District Judge

Dated; January 20, 2004

25



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION OOCKETED

EARL SIDNEY DAVIS, JAN 2 i 2004

Plaintiff,
No. 01 C 6658

v

DAVE BIERMAN, FRANCINE POWELL,

)
)
)
)
,)
) HONORABLE DAVID H. COAR
)
and TIMOTHY J. BUDZ, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Earl Sidney Davis filed a complaint against defendants Dave Bierman, Francine
Powell, and Timothy J. Budz alleging their violation of 42 U.S.C. § 1983 (“section 1983”).
Plaintiff is a civil detainee at a state facility, and defendants are all former and/or current
employees thereof. His two-count complaint alleges that defendants confiscated certain legal
documents (Count 1) and blocked his telephone calls to his attorneys (Count If), thereby blocking
his access to the courts in violation of his due process rights under the Fourteenth Amendment.
Plaintiff is suing defendants, all former and/or current slate employees, in their individual and
official capacities.

Defendants’ motion for summary judgment is now before this court. Defendants contend
that plaintiff's claims fail because he cannot establish that he was denied his constitutional right
of access to the courts. Moreover, they contend that: plaintiff's claims against defendants in
their official capacities are barred by the Lleventh Amendment; two of three defendants (Bierman

and Powell) had no involvement in the events forming the basis for Count II of the complaint;

and, in any event, all three defendants are entitled to qualified immunity.


2001 complaint in this action, and plaintill testified that Cygal provided those copies to him." At
his deposition, plaintiff testified that the particular copies of those letters that he had submitted
for duplicating had not yet been returned to him by the Facility.

Plaintiff believes that he needed the July 10" letter when Dr. Heaton testified in court on
July 17, 2001 at plaintiffs commitment hearing. He did not have either of the July 2000 fetters
from Dr. Underwager with which to confront Dr. Heaton on the stand on that day. Defendants
Bierman and Powell did not know that plaintiff was scheduled to appear in court for a hearing on
July 17, 2001.

iI. Plaintift’s Telephone Calls

Plaintiff believes that defendant Budz blocked his telephone calls for one year,

Pursuant to the Illinois Administrative Code, residents at the Facility were permitted a
reasonable amount of communication with others via mail, telephone calls, and in-person visits.
Under the Lacility’s own policy, residents could make telephone calls during the daytime
whenever they wish.

Employees at the Facility did not have the ability to block, prevent, record, or monitor
collect calls placed by residents at anytime from June 1, 1998 through March 31, 2003. The
Kacility permitted plaintiff to place collect calls to his attorneys between the hours of 7 a.m. and
10:45 p.m. daily, Plaintiff was not permitted to make free telephone calls to his attorneys on (he
Facility’s administrative lines because his attorney was willing to accept collect calls. “That
restriction was consistent with JDHS’s Standard Operating Procedure (“SOP”). Under

circumstances where attorneys were unable to receive collect calls, defendant Budz made

* Inexplicably, detendants did nol cite any of this testimony or otherwise address the record
evidence establishing that plaintiff’s attorney, Cygal, also possessed capies of those documents.
12


876, 883 (7% Cir. 2000) (citing Lewis. 518 U.S, at 350-54) (emphasis added). ‘The injury, or

“prejudice.” clement (which stems from the constitutional principle of standing) has long been

required by the Seventh Circuit in its formulation of the claim. See Ortloff'v. U.S, 335 F.3d 652,
656 (7" Cir. 2003) (“to state a right to access-to-courts claim..,a prisoner must make specific
allegations as to the prejudice suffered because of the defendants’ alleged conduct”); see also
Musgrove v, Detella, No. 01-3758, 2003 U.S. App. LEXIS 17700. at *8 (7" Cit, Aug. 21, 2003)
(“a prisoner claiming that he was denied access to the courls must prove that he suffered an
actual injury by showing that unjustified acts or conditions hindered his ability to pursue a
nontrivolous legal claim”) (citations omitted); Jenkins v. Lane, 977 F.2d 266, 268 (7" Cir. 1992)
(per curiam); Martin v. Davies. 917 1.20 336, 340 (7" Cir. 1990).’ Moreover, to prove this
alleged constitutional violation, a plaintiff must also demonstrate that the alleged deprivation of
his access to the courts was intentional, see Kincaid v. Vail, 969 F.2d 594, 602 (7" Cir, 1992),
and that the slate’s conduct was unreasonable, sce Ortloff, 335 V3 at 656.
1. Plaintiff's Claim

‘As an initial matter. plaintiff has barely articulated his access-to-courts claim, and its
contours are uncicar at this late stage in the litigation. In his memorandum in opposition to
defendants’ motion for summary judgment, plaintiff asserted that “he was unable to provide the
|contiscated] documents to his attorney for possible use in the impeachment of a State witness
(Dr. Heaton] testi fying against him” at the July 17, 2001 hearing. He also argued that the

oo

7 -The Seventh Circuit has recognized a limited exception to the injury/prejudice requirement i
instances where the plaintiff has alleged a substantial and continuous deprivation. See DeMallory v.
Cullen, 855 F.2d 442, 449 (7" Cir, 1988). ‘That exception does not apply here, as plaintiff has conceded
that the deprivation of the documents al issue was “temporary.” In any event, plaintiff has not presented
sufficient evidence to establish a substantial and continuous deprivation under Seventh Circuit precedent.

15