Devbrow v. Gallegos

Citation735 F.3d 584
Decision Date01 November 2013
Docket NumberNo. 13–1627.,13–1627.
PartiesEugene DEVBROW, Plaintiff–Appellant, v. Steven GALLEGOS and Jason Smiley, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

735 F.3d 584

Eugene DEVBROW, Plaintiff–Appellant,
v.
Steven GALLEGOS and Jason Smiley, Defendants–Appellees.

No. 13–1627.

United States Court of Appeals,
Seventh Circuit.

Submitted Oct. 25, 2013.
Decided * Nov. 1, 2013.


[735 F.3d 585]


Eugene Devbrow, Westville, IN, pro se.

Betsy M. Isenberg, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant–Appellee.


Before POSNER, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Eugene Devbrow, an Indiana prisoner, challenges the grant of summary judgment against him in this action under 42 U.S.C. § 1983 asserting that prison officials denied him access to the courts by confiscating and then destroying his legal papers in retaliation for a prior lawsuit he filed. Because Devbrow failed to show that prison officials actually destroyed his legal documents or took his papers for retaliatory reasons, we affirm.

According to Devbrow's verified complaint, two prison officials at Indiana's Westville Correctional Facility—defendants Steven Gallegos and Jason Smiley—confiscated and destroyed his legal materials after he told Gallegos that unsanitary conditions at the prison could be rectified through a lawsuit. Gallegos promptly ordered Devbrow to his dormitory and grilled him about his pending litigation. Devbrow acknowledged he had lawsuits pending, at which point Smiley ordered a dorm officer—identified by Devbrow only as “Stolls”—to remove all of Devbrow's legal materials and review them for anything pertinent to any litigation that was ongoing. Over Devbrow's protests, Gallegos then told another officer to inventory all of the materials. Devbrow later stepped away from the dorm and, upon his return, discovered that his legal materials were missing—confiscated, he believed, by Stolls.

Devbrow describes these confiscated materials as irreplaceable documents that were needed by his attorney to respond to a summary judgment motion in a pending civil rights suit in the Southern District of Indiana. In that suit Devbrow had charged doctors and a nurse from his former prison with deliberate indifference to a serious medical need (cancer), Devbrow v. Kalu, 705 F.3d 765, 766–67 (7th Cir.2013), and Devbrow insisted that the materials confiscated by Gallegos, Smiley, and Stolls were his only copies of medical records from that prison.

Defendants Gallegos and Smiley eventually sought summary judgment on grounds that they did not destroy Devbrow's legal materials and that their confiscation of excess materials was not in retaliation for his prior litigation. The two officers submitted

[735 F.3d 586]

their own testimony asserting that Devbrow had created a fire hazard by stacking excess property by his bed, that they allowed him to keep some legal materials by his bed, that Devbrow stored the rest of them, and that they were unaware of Devbrow's pending litigation.

The district court construed Devbrow's submissions as raising both access-to-courts and retaliation claims, and granted summary judgment for the two officers. Plaintiff Devbrow, the court determined, failed to provide any admissible evidence to dispute the sworn statements of Gallegos and Smiley denying personal involvement in any destruction of his property. But even if the officers were personally involved, the court added, they would still be entitled to summary judgment because Devbrow did not suffer any actual injury from the destruction and/or confiscation of those documents: Devbrow's deliberate indifference suit had been terminated not on the merits, but on grounds of untimeliness (a finding we later reversed; litigation is ongoing in the district court, see Devbrow, 705 F.3d at 770). As for Devbrow's retaliation claim, the court found that Devbrow had not submitted any admissible evidence to discredit the officers' explanation that they had removed his property from the dorm room because it was a fire hazard. The court later denied Devbrow's motion to reconsider, which the court construed as a motion under Federal Rule of Civil Procedure 59(e), because he...

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    • United States
    • Court of Special Appeals of Maryland
    • January 29, 2014
    ...through the testimony of the author of the e-mail or a person who saw the author compose and send the e-mail. See Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir.2013). Accord Lorraine, 241 F.R.D. at 555 (one of “[t]he most frequent ways to authenticate email evidence” is through a “person ......
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    • Appeals Court of Massachusetts
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  • Part two: case summaries by major topic.
    • United States
    • Detention and Corrections Caselaw Quarterly No. 63, April 2015
    • April 1, 2015
    ...privacy rights. (Woodbury County Jail, Iowa) U.S. Appeals Court EVIDENCE LEGAL MATERIAL RETALIATION FOR LEGAL ACTION Devbrowv. Gallegos, 735 F.3d 584 (7* Cir. 2013). A prisoner brought a [section] 1983 claim against two prison officials, claiming that the officials denied him access to the ......

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