Ross v. Franzen

• Decision Date: 20 November 1985
• Docket Number: No. 83-2966,83-2966
• Parties: Willie ROSS, Plaintiff-Appellant, v. Gayle FRANZEN, James Greer, and Judson Childs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1216

777 F.2d 1216

3 Fed.R.Serv.3d 346

Willie ROSS, Plaintiff-Appellant, v. Gayle FRANZEN, James Greer, and Judson Childs, Defendants-Appellees.

No. 83-2966.

United States Court of Appeals Seventh Circuit.

Argued Sept. 10, 1985.

Rehearing Denied Dec. 16, 1985.

Decided Nov. 20, 1985.

Clifford J. Shapiro, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Vincenzo Chimera, Ill. Atty. Gen. Office, Chicago, Ill., for defendants-appellees.

Before WOOD and ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

This is an appeal from an order of the magistrate, assigned by the United States District Court for the Southern District of Illinois, granting defendants' motion for summary judgment in a suit brought under 42 U.S.C. Sec. 1983. Plaintiff Willie Ross, an inmate at Menard Correctional Center, claims that the magistrate erred by (1) granting prison officials' motion for summary judgment without providing him notice and an opportunity to respond to defendants' affidavit; (2) granting summary judgment when his complaint and the defendants' affidavit were contradictory; (3) failing to consider a request to amend his complaint to include a claim of excess confinement where he failed to sign the request; and (4) granting summary judgment when he alleged that certain officials of the Illinois Department of Corrections violated his rights during the course of and following the disposition of a disciplinary report filed against him. For the reasons given below, we reverse and remand.

I

The facts alleged in plaintiff's complaint are as follows. Ross and cellmate Nathaniel Williams had their cell searched as part of a general shakedown on April 25, 1979. While they were away in a yard, a seven-inch screwdriver was discovered in a door track above their cell door. Both men appeared before the prison Adjustment Committee on April 27.

Certain facts concerning this Committee hearing are not in dispute. Both parties agree that the procedure for hearing reports is to bring the occupants of the cell before the Committee one at a time to request a plea. Ross and Williams, one at a time, pled not guilty. After the hearing each resident was asked to step outside in the waiting room until a decision was made by the Committee. When Ross returned to the hearing room for the decision, he said to the Committee: "I am guilty. The screwdriver was mine." Ross was found guilty and sentenced to six months segregation revocation of six months good time, and lowering of his prison status to "C" grade. Williams was then found innocent of the charge, and all records relating to the charge were expunged.

Several other facts surrounding the Committee hearing, however, are contested. First, Ross alleges that both he and Williams were told by Captain Childs on their initial appearances before the Committee that if both cellmates said they were innocent, then both were going to be found guilty. Ross claims that it was this "threat" which forced the two cellmates to decide (while waiting outside in the adjoining room) that in order to be able to prove their innocence, one of them had to be out of segregation to work on their grievances. Since Williams had a college background, they chose Ross to plead guilty.

The second set of facts concerning the Adjustment Committee hearing is disputed. Ross alleges that the Committee denied his requests to (1) call Officer Kitowski (who reported the incident), (2) admit the screwdriver as evidence or compare fingerprints, (3) take a polygraph test, or (4) allow him to read a statement into the record. Following the hearing, Williams filed grievances before the Administrative Review Board repeating these allegations in addition to stating that the door track was outside the cell, that the only way to place an object into the track was from the outside of the cell (by removing two one-inch bolts with a socket and wrench), that the area outside the cell was used as a thoroughfare by residents and employees, and that Ross and Williams were locked inside their cell prior to the search.

There is nothing in the Committee summary to support or refute Ross' and Williams' version of the events. The record of the proceedings indicates only that "the charges were read by the chairman. Resident plead [sic] guilty, stating: 'The screw-driver was mine.' " The summary does not mention two (separate) pleas. Under "Basis for Decision/Evidence Relied Upon," the summary listed: "The committee's review of the charges, the ticket processed and hearing in compliance with A.R. 804, the resident's guilty plea, and the statement by the reporting correctional employee, and the seriousness of the offense--possession of a dangerous weapon--which is a threat to the security of this institution."

Defendant Greer approved the Committee's action and Franzen approved the decision to affirm it. On July 2, 1979 Williams filed a pro se civil rights complaint on behalf of himself and Ross. This section 1983 action sought damages and an injunction against corrections officials relying in the future on only "the written word of an officer without that officer being present and no other evidence being presented except the officer's statement." Williams also filed in his own name an in forma pauperis affidavit and other documents.

Defendants did not file an answer to the complaint, but instead filed a "Motion to Dismiss or for Summary Judgment" on January 30, 1980. One of the documents attached to this motion was an affidavit of Captain Childs denying the version of events as alleged by Ross and Williams. There is no indication in the record that plaintiffs were notified by the court of the right to file, or the necessity of filing, a counter-affidavit to the defendants' motion to dismiss. Instead, Williams filed a "Motion to Strike" in response on March 13, 1980; although the document was filed in both Ross' and Williams' names, only Williams signed the motion. Williams alleged that Ross was detained illegally in segregation for an additional eighteen days beyond the original sentence of six months. At a hearing before the magistrate on October 8, 1982, Williams did not appear. The action by Williams was then dismissed for failure to prosecute.

The magistrate granted defendants' motion for summary judgment on October 6, 1983. The order adopted the version of events contained in defendant Childs' affidavit (including its conflict with the Committee's summary with respect to the number of pleas) and concluded that there was no constitutional violation. The order became final on October 7, 1983, and the district court granted Ross' motion to appeal in forma pauperis and request for appointment of counsel.

II

Plaintiff first contends on appeal that the magistrate erred in granting the prison officials' motion for summary judgment without providing Ross notice and an opportunity to respond to the defendants' affidavit. Ross filed no opposing affidavit as required by Rule 56(e) of the Federal Rules of Civil Procedure, which requires that he not rest upon the mere allegations or denials of his pleadings. ¹ The consequences are that the facts asserted in defendants' affidavit are treated as true. Therefore, a straightforward application of the rule would require that summary judgment be granted in the instant case.

However, it has been the law of this circuit that, as a gloss on the federal rules, irrespective of any implications of due process, a district court cannot properly act upon a motion for summary judgment without giving the opposing party a "reasonable opportunity" to submit affidavits that contradict the affidavits submitted in support of the motion. There must be the opportunity to demonstrate that there is a genuine issue of material fact which precludes granting the defendants' summary judgment. Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir.1982).

When applied to the situation of a pro se prison litigant in a civil suit, this "reasonable opportunity" presupposes notice. Mere time is not enough, because it is not realistic to impute to a prisoner without legal background the awareness of failing to respond with an opposing affidavit to a motion for summary judgment. Id. at 102. Just as we hold the pro se complaint to less stringent standards than formal papers drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), when dealing with summary judgment procedures technical rigor is inappropriate where unresponsive and uninformed prisoners are involved. Madyun v. Thompson, 657 F.2d 868, 876 (7th Cir.1981).

In the instant case the record does not indicate that Ross was given such notice. In addition, the hearing on defendants' motion was not recorded and there is no indication that Ross was given an opportunity to respond to defendant Childs' affidavit. We have made it clear that if defense counsel does not give pro se prisoner litigants such notice, the district court must do so. Lewis, 689 F.2d at 103. This rule applies a fortiori to the magistrate as well. Indeed, because of the high volume of motions that a magistrate hears, it is particularly appropriate for a magistrate to give the required notice before the district court is burdened with this additional duty.

This prophylactic rule is not without exception. It is not reversible error to fail to give such notice in the limited circumstances where it appears "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Muhammad v. Rowe, 638 F.2d 693, 695-96 (7th Cir.1981). This is consistent with the standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim as set by Haines, 404 U.S. at 520-21, 92 S.Ct. at 595-96.

Defendants contend that this limited exception applies here because there was "enough evidence" to establish beyond a doubt that Ross could have presented no set of facts in his support to entitle...