Stewart v. McGinnis, 89 C 6115.

• Decision Date: 04 August 1992
• Docket Number: No. 89 C 6115.,89 C 6115.
• Citation: 800 F. Supp. 604
• Parties: Charles STEWART, Plaintiff, v. Kenneth McGINNIS, Michael O'Leary, Thomas Roth, Darrell Cobb, Theophilus Smith and Marie Jordan in Their Official and Individual Capacities, Defendants.
• Court: U.S. District Court — Northern District of Illinois

800 F. Supp. 604

Charles STEWART, Plaintiff, v. Kenneth McGINNIS, Michael O'Leary, Thomas Roth, Darrell Cobb, Theophilus Smith and Marie Jordan in Their Official and Individual Capacities, Defendants.

No. 89 C 6115.

United States District Court, N.D. Illinois, E.D.

August 4, 1992.

Chris Averkiou, Chicago, Ill., for plaintiff.

Diann K. Marsalek, Asst. Atty. Gen., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Charles Stewart ("Stewart") brings this 42 U.S.C. § 1983 ("Section 1983") action against various Illinois Department of Corrections ("IDOC") and Stateville Correctional Center ("Stateville") officials in both their individual and official capacities. Stewart asserts that he has suffered several constitutional violations during his incarceration at Stateville, and he seeks an award of damages plus declaratory and injunctive relief.

Each side has now moved for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated at length in this memorandum opinion and order, defendants' motion is granted and this action is dismissed.

Rule 56 Principles

Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record — only those inferences that are reasonable" — in the light most favorable to the nonmovant — in this case (1) defendants as to Stewart's motion and (2) Stewart as to defendant's motion (Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991) (citations omitted)). Where as here cross motions are involved, that principle thus demands a dual perspective — one that this Court has often described as Janus-like — that sometimes causes the denial of both motions.

In this instance, the task has been further complicated by both sides' failure to comply with this Court's General Rule ("GR") 12(m) and 12(n), which require factual statements in support of and in opposition to Rule 56 motions. Although each side has filed a GR 12(m) statement in support of its own motion,¹ neither side has tendered a GR 12(n) response. GR 12(n) provides:

All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.

Thus each side has effectively admitted the facts contained in the opponent's GR 12(m) statement (Schulz v. Serfilco, Ltd., 965 F.2d 516, 518-19 (7th Cir.1992) is only one of a number of cases in which our Court of Appeals has recently enforced the rule with considerable stringency) — except to the extent that those facts are contradicted by the party's own GR 12(m) statement.

Yet even that relatively straightforward principle is complicated in this instance. First, defendants' GR 12(m) statement, which consists of a brief 15 paragraphs, fails to address most of the circumstances at issue in this litigation. And even worse, Stewart's comparatively long 196-paragraph GR 12(m) statement includes numerous assertions that either are not supported or are actually contradicted by the record, so it tends to obfuscate as much as to clarify the relevant facts. Even in the absence of a GR 12(n) response, Stewart cannot establish undisputed facts merely by asserting them in his GR 12(m) statement. Instead GR 12(m) requires that those statements be supported by "specific references to the affidavits, parts of the record, and other supporting materials."

After careful sorting, this opinion therefore derives its undisputed facts from each side's (mostly Stewart's) GR 12(m) statement, where those asserted facts are supported by record evidence identified there. In each instance where factual disputes exist (recognizable despite the absence of a GR 12(n) response, when Stewart's own GR 12(m) citations point to contradictory evidence), they are nonmaterial (that is, non-outcome-determinative (Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir.1986))).

Parties

Stewart was incarcerated at Stateville between August 1987 and July 1991 (D. 12(m) ¶ 2), when he was transferred to Logan Correctional Center (Stewart Aff. ¶ 3). Stewart lived in Stateville's G Unit from July 1988 through the end of his Stateville stay (id. ¶ 2).

Kenneth McGinnis ("McGinnis") was the IDOC Director during the time period relevant to this litigation. Michael O'Leary ("O'Leary") was the Stateville Warden between 1983 and February 1990, when Thomas Roth ("Roth")² took over the post (Roth had been Assistant Warden during 1989). Darrell Cobb ("Cobb") was the Superintendent of G Unit during the entire period of Stewart's residence there. Theophilus Smith ("Smith") is a casework supervisor at Stateville and a member of the Stateville adjustment committee. Marie Jordan ("Jordan") is a correctional counselor at Stateville and also sits on the adjustment committee.³

Standing

Although defendants have not raised the issue, Stewart's standing to seek injunctive and declaratory relief must be established before the substance of those claims may be addressed. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) has held that to satisfy the Article III case or controversy requirement a Section 1983 plaintiff seeking injunctive relief must be able to establish a personal stake in the outcome of his or her claim by showing a "real or immediate threat that the plaintiff will be wronged again" (id. at 111, 103 S.Ct. at 1669). Citing O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974) (a case involving discriminatory enforcement of the criminal law), Lyons, 461 U.S. at 102, 103 S.Ct. at 1665 explained:

Although it was claimed in that case that particular members of the plaintiff class had actually suffered from the alleged unconstitutional practices, we observed that "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." Past wrongs were evidence bearing in "whether there is a real and immediate threat of repeated injury." But the prospect of future injury rested "on the likelihood that plaintiffs will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners."

And Robinson v. City of Chicago, 868 F.2d 959, 966-67 (7th Cir.1989) has held that the Lyons rule applies to declaratory as well as to injunctive relief.

Because Stewart was transferred out of Stateville in July, 1991, he is clearly under no threat of repeated injury. Thus he has no stake in the outcome of his declaratory and injunctive claims, and he therefore lacks standing to pursue them. Defendants' motion for summary judgment on those claims is therefore granted, and the rest of this opinion deals only with Stewart's claims for damages.⁴

Deprivation of Property (Count I)

Stewart's first claim involves property removed from his cell during two "shakedown" searches. Such searches of inmate cells are conducted periodically and without advance notice. Inmates are removed from their cells while officers search for and remove contraband and unauthorized property. At Stateville confiscated property is supposed to be tagged and sent to a property storage room, and inmates are supposed to receive a "shakedown slip" listing all property taken from their cells (Cobb Dep. 12-13, 26-28). Then 20 Ill.Admin.Code § 501.230⁵ deals with the later disposition of that property:

c) If it is determined that unauthorized or excess property confiscated as contraband, other than property specified in subsections (a) and (b) of this Section, belongs to the committed person, the committed person may, within 30 days of notice of confiscation:

1) Have the property shipped at his own expense or have it picked up at the facility during certain hours by a person designated in writing.

2) Request in writing that the property be destroyed.

3) Indicate, in writing, that he has filed a grievance regarding the confiscation of the property.

* * * * * *

e) Property which a committed person does not have shipped, picked up from the facility or destroyed within 30 days of notice of confiscation, or where the owner cannot be identified shall be sold, made a State loan, given to a charitable organization or destroyed, as determined by the Chief Administrative Officer. The Chief Administrative Officer may hold the property for an additional 30 days when it is not possible for the property to be picked up within 30 days of notice of confiscation. Any proceeds from the sale of confiscated property shall be deposited in the Inmate's Benefit Fund.

f) If a committed person grieves the confiscation of excess or unauthorized property within 30 days of the notice of confiscation, the property shall be retained at the facility until the grievance procedure has been completed.

Stewart claims that his due process rights were violated when that procedure was not followed after two shakedowns conducted on July 5, 1989 and May 24, 1990 (P. 12(m) ¶¶ I.32, I.36). Stewart asserts that on that first occasion a fan, a pair of blue jeans and legal papers belonging to him were removed from his cell (P. 12(m) ¶ I.33). However, the shakedown slip that was issued to Stewart and his cellmates on July 5 lists only the following items as having been removed: 4 mattresses, 25 sheets, 4 pillow cases, 1 wooden rod, 3 pillows, 3 desks, 1 roll cart, 1 "letter telling about drugs" and 1 Panasonic 10" fan (P.Ex. I(1)). On July 8 a disciplinary report listing those same items and charging Stewart with possession of unauthorized property was issued (D. 12(m) ¶ 12; D.Ex. A-2; P.Ex. IV(9)).⁶ Although Stewart states that he received no hearing following that shakedown (Stewart Aff. ¶ 9), both...