Aiello v. McCaughtry, 94-1935
| Decision Date | 16 July 1996 |
| Docket Number | No. 94-1935,94-1935 |
| Citation | 92 F.3d 1187 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Louis E. AIELLO, also known as Luigi Aiello, Plaintiff-Appellant, v. Gary R. McCAUGHTRY, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before CUMMINGS, COFFEY and FLAUM, Circuit Judges.
Louis Aiello, a prisoner, claims that Warden Gary McCaughtry, Lynn Oestreich, Patricia Garro and William Ball violated his First Amendment rights. These prison officials withheld his magazines and newspapers while he stayed in the Adjustment Center ("AC"), a segregation unit at Waupun Correctional Center, from October 19, 1992 through January 7, 1993. After moving out of the AC, he received the back issues and began to receive new issues as usual. He and another former inmate, Colt Brownelli, who is not involved in this appeal, filed suit pursuant to 42 U.S.C. § 1983 to protest this deprivation among other alleged violations of state and federal law. The district court dismissed or denied the other claims. Since Aiello has not contested its disposition of them, we need not address them. The district court denied both parties' motions for summary judgment on the First Amendment claim, and the claim proceeded to trial. After the close of evidence, the district court granted judgment as a matter of law to Oestreich, Garro and Ball because Aiello had failed to establish their personal responsibility for McCaughtry's allegedly unconstitutional policy of denying publications to prisoners in the AC. See Fed.R.Civ.P. 50(a). (Aiello has not challenged the validity of this particular decision itself, and we therefore decline to address its propriety.) The jury then filed a special verdict. It found in favor of McCaughtry because his policy was reasonably related to legitimate penological interests. See Thornburgh v. Abbott, 490 U.S. 401, 413 (1989). Aiello raises a variety of alleged procedural and evidentiary errors on appeal. We affirm.
First, Aiello claims that the defendants waived the "affirmative defense" of having a legitimate penological interest because they failed to plead it in their answer. See Fed.R.Civ.P. 8(c). Even if Rule 8(c) required parties to plead the existence of a legitimate penological interest as an affirmative defense (a proposition for which we have found no substantial authority), the failure to comply with Rule 8(c) is not fatal when the court has recognized the defense and the parties have litigated it. Blaney v. United States, 34 F.3d 509, 512 (7th Cir.1994).
In a similar vein, Aiello contends the defendants waived the theory that publications posed a threat to prison safety because newspapers and magazines provided the raw materials for weapons such as clubs or even a spear. (The spear, which had been used to attack a prison guard at another Wisconsin prison, was not allowed into evidence at trial.) In support of their motion for summary judgment, the defendants provided evidence that newspapers and magazines could be used to clog pipes, thereby creating floods, or to set fires, but they did not mention their use as weapons. Aiello believes that this omission amounted to a waiver of the "weapons" theory. It did not. Cf. Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir.1995) ().
The defendants sought summary judgment on the First Amendment claim, but the district court denied their motion because they failed to provide sufficient evidence to demonstrate the existence of a rational relationship between the interference with the receipt of publications and a legitimate penological interest. The court then denied Aiello's motion because he failed to provide sufficient evidence to establish the absence of such a relationship. He argues that the basis for the district court's denial of the defendants' motion logically entitled him to relief on his own. However, we will not review the denial of a motion for summary judgment on the basis of insufficient or conflicting evidence when such evidentiary issues have subsequently been presented at trial. Watson v. Amdeco Steel, Inc., 29 F.3d 274, 277 (7th Cir.1994). Although three of the four defendants received judgments as a matter of law under Rule 50(a) instead of a jury verdict, the same principle nonetheless applies. General Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1507 (9th Cir.1995).
Aiello was denied subpoenas for four witnesses because he failed to tender the witness fees. Fed.R.Civ.P. 45(a)(1). (He was able to subpoena a fellow prisoner who waived the witness fee.) Two of these witnesses were defendants McCaughtry and Garro. Two others were prison employees, Brian Westra and Melanie Houge, whom Aiello planned to use to verify documents, confirm that his publications had been withheld and describe the source and implementation of the AC policy. Relying on Coleman v. St. Vincent De Paul Soc'y, 144 F.R.D. 92, 96 (E.D.Wis.1992), Aiello asked the district court to advance the witness fees on his behalf under 28 U.S.C. § 1915(c), 1 because he was a pauper. The court refused on the grounds that § 1915(c) does not authorize such payments. Since he could not pay the fees for these witnesses, he could not subpoena them. Aiello's problem was underscored at trial when he attempted to call McCaughtry and Ball, another defendant who had not been on his subpoena list, to the stand as his witnesses. They had been in the courtroom before, but they were not present when he attempted to call them. (Aiello contends they were probably still somewhere in the court house.) The court declined to order that they be found and forced to testify because Aiello had neither subpoenaed them, nor secured an agreement from their attorney to provide them as his witnesses. See McGill v. Duckworth, 944 F.2d 344, 353 (7th Cir.1991) (). McCaughtry and Ball subsequently testified on their own behalf, and Aiello had the opportunity to cross-examine them.
Whether the district court may advance witness fees on behalf of an in forma pauperis litigant under § 1915(c) is an open question in this circuit, although we have held that § 1915(c) does not allow the court to waive the witness fees altogether. McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir.1987). Advancing fees differs from waiving them in that the federal government bears the cost of payment in the former case, while the witness goes without any advance payment in the latter. Subsection (c) states:
The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.
28 U.S.C. § 1915(c) (recodified as § 1915(d) (1996)). This provision says that indigents may subpoena witnesses just like anyone else. However, apart from subpoenas issued on behalf of the United States or an officer or agency thereof, Fed.R.Civ.P. 45(b)(1), anyone else would also have to tender the witness fees. This provision does not appear to expressly authorize the payment of such fees in instances where non-paupers would have to pay.
Prior to McNeil, this court twice expressly refused to resolve this issue, and each time it cited Morrow v. Ingleburger, 584 F.2d 767, 772 n. 7 (6th Cir.1978), in dicta suggesting that § 1915(c) may authorize the district court to order the payment of witness fees on an indigent's behalf. Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir.1983); McKeever v. Israel, 689 F.2d 1315, 1317, 1322 (7th Cir.1982). However, three weeks after this court decided Merritt, the Sixth Circuit itself rejected the footnote in Morrow as dicta. Johnson v. Hubbard, 698 F.2d 286, 290 n. 4 (6th Cir.), cert. denied, 464 U.S. 917 (1983). Thus far, the Second, Fifth, Sixth and Eighth Circuits have held that § 1915(c) does not authorize the payment of witness fees on behalf of in forma pauperis plaintiffs, and the Third and Ninth Circuit have mentioned an absence of statutory authority for the expenditure of such funds in the context of § 1915. 2 None of the other circuits currently hold that § 1915(c) authorizes the payment of such fees on behalf of an indigent, although we have found dicta and dissents in favor of such an interpretation. 3 We also note that § 1915(a) permits indigents to waive pre-payment of the filing fee required by 28 U.S.C. § 1914(a). (Congress has qualified § 1915(a)'s waiver provision with respect to prisoners, who now fall under the new payment and collection scheme set forth in 28 U.S.C. § 1915(b) (1996).) The Eleventh Circuit has suggested that subsection (a) authorizes subpoenaing witnesses on behalf of indigents, but the weight of authority is generally to the contrary. 4 We agree with the other circuits that Congress has not authorized waiver or advancement of witness fees on behalf of indigents under § 1915(c). See Means, 741 F.2d at 1056 (); cf. also Kenneth R. Levine, In Forma Pauperis Litigants: Witness Fees and Expenses in Civil Actions, 53 Fordham L.Rev. 1461, 1468-70 & n. 27-33 (May 1985) ().
The district court did not necessarily lack the ability to obtain these witnesses. As Aiello points out for the first time on appeal, Federal Rules of Evidence 614 and 706(b) authorize the district court to call its own lay witnesses and expert witnesses respectively. However, setting aside the question of whether...
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