Smith v. Donohue
| Decision Date | 21 September 1992 |
| Docket Number | No. 91-1647,91-1647 |
| Citation | 977 F.2d 585 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within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. Johnny SMITH, Plaintiff-Appellant, v. Marjorie DONOHUE, Michael W. Carter, Felissa M. Newberry, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before CUMMINGS, POSNER and MANION, Circuit Judges.
Insisting that the Pontiac Correctional Center "is a prison not a church," Johnny Smith claims that prison authorities wrongly confiscated two pornographic magazines that he ordered through the mail. To vindicate his constitutional rights, Smith filed suit in federal district court under 42 U.S.C. § 1983. The district court granted summary judgment in favor of the defendants. In addition to challenging the merits of the district court's decision, Smith raises several objections to the district court's procedures. As discussed below, we reject Smith's procedural objections. On the merits, we affirm for the reasons stated in the attached district court order. 1
Smith, an inmate at the Pontiac Correctional Center, sought to buy two sexually explicit magazines through the mail. The gist of Smith's complaint is that prison officials authorized the purchase while knowing the sexually explicit nature of the magazines, but then decided to review them upon their arrival at Pontiac. Without allowing Smith to testify or present evidence, two review committees concluded that the magazines were obscene. Each denied Smith's request to allow the magazines into the prison. For further details regarding the underlying facts of Smith's substantive claim, we rely on the attached order of the district court.
On February 5, 1990, Smith filed an amended complaint, naming as defendants members of the Central Publication Review Committee, one of the committees that denied Smith's request for the magazines. The complaint alleged violations of his First Amendment rights "to free speech and [freedom] from censorship of opinions and ideas," and his Fourteenth Amendment right to due process of law. Smith then launched a barrage of motions. After the defendants failed to answer a set of interrogatories and a request for admissions of facts, Smith filed, on June 27, 1990, a motion for entry of default and a motion for default judgment. In the next several months, Smith twice repeated these motions. The defendants did not respond, but the court did not act on Smith's motions. Smith also propounded on August 15 a new request for admissions of facts. Finally, on November 13, Smith filed a motion for summary judgment.
On January 18, 1991, the district court ordered the defendants to respond to all outstanding motions and to show cause as to why judgment should not be entered against them. On February 1, the defendants provided a response in which "[c]ounsel for the defendant[s] recognize[d] that he should have responded to these frivolous motions earlier ... but did not do so, due to his caseload." At the same time, the defendants also filed a cross-motion for summary judgment. The district court notified Smith that he had 14 days in which to respond to the defendants' motion for summary judgment. However, after 13 days and before Smith filed any response, the district court ruled on the outstanding motions, denying all of Smith's and granting the defendants' motion for summary judgment.
Smith moved for relief from judgment under Fed.R.Civ.P. 60(b)(1), pointing out that the district court ruled before the expiration of the 14 days allotted for Smith's response. On February 27, while this motion was pending, Smith also filed a response to the defendants' cross-motion for summary judgment. The district court denied Smith's Rule 60(b)(1) motion and refused to disturb its decision granting defendants summary judgment. Smith filed a timely notice of appeal.
Smith first argues that the district court erred by failing to grant his repeated default motions, which he based on the defendants' failure to comply with discovery. The defendants reply that entry of default is a harsh sanction that should be used as a last resort.
We will defer to the district court's decision in matters such as this unless we find that it abused its discretion. United States v. DiMucci, 879 F.2d 1488, 1494 (7th Cir.1989). Although the district court may have been justified if it had decided to grant Smith's motion for default, we cannot say that the court abused its discretion in deciding the other way. We have affirmed the denial of a motion for default under more egregious circumstances. See Duling v. Markun, 231 F.2d 833 (7th Cir.), cert. denied, 352 U.S. 870 (1956).
Smith also contends that the district court erred by allowing the defendants to respond to his summary judgment motion and his default motions long after these motions had been filed. As for Smith's default motions, we have already indicated that the district court did not abuse its discretion in denying them. We therefore find that any error in allowing the defendants to respond was harmless. See Fed.R.Civ.P. 61. As for Smith's motion for summary judgment, we agree with the district court's disposition of that motion. So there too any error in allowing the defendants to respond to Smith's summary judgment motion was harmless under Rule 61.
Next, Smith challenges the district court's ruling on the defendants' cross-motion for summary judgment before the end of the 14 days allotted for his response. The defendants concede that a party opposing a motion for summary judgment should ordinarily be given an opportunity to respond. However, they point out that Smith filed a motion for relief from judgment and a response to the defendants' cross-motion for summary judgment. The district court subsequently denied Smith's motion for relief from judgment. The defendants argue that the district court considered the substance of Smith's opposition to the defendants' cross-motion for summary judgment, and thus any error in its initial ruling on February 13 was harmless. We agree.
Smith does not deny that the district court considered his response to the defendants' cross-motion for summary judgment when it entertained his motion for relief from judgment. Nor does he allege any prejudice resulting from this subsequent consideration. Although we have previously indicated that some opportunity to respond must be allowed regardless of prejudice, see Indiana Port Comm'n v. Bethlehem Steel Corp., 702 F.2d 107 (7th Cir.1983), we believe that the district court's consideration of Smith's response along with his motion for relief from judgment satisfies that requirement.
Next, Smith argues that the district court erred by refusing to allow him to prove that the defendants had failed to comply with discovery. Although Smith terms the information that he sought "vital," he fails to go beyond this label and identify what he was interested in discovering. Without any indication of what type of information Smith sought, we cannot say that the district court abused its discretion.
Finally, based on the disposition of Smith's claims, we deny as moot his motion for appointment of counsel.
Marjorie Donohue, et al., Defendants.
ORDER
The plaintiff, a state prisoner, has brought this civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, members of the Illinois Department of Corrections' Publication Review Committee, violated the plaintiff's First and Fourteenth Amendment rights. The plaintiff alleges that the defendants approved, then later confiscated, the plaintiff's pornographic magazines. This matter is before the court for consideration of pending motions.
The plaintiff's motions for default and for entry of final judgment will be denied. In response to the court's rule to show cause, the defendants state that they have complied with all outstanding discovery requests. Counsel for the defendants further asserts that he did not respond to the plaintiff's motions because he deemed the motions frivolous. While the defendants' attorney has been rather lax in his defense of this case, the court will not enter judgment for the plaintiff on the basis of a technicality.
Turning, then, to the parties' substantive motions, the defendants' motion for summary judgment will be allowed, and the plaintiff's motion for summary judgment will be denied. A review of the record, as well as applicable case law, reveals that the defendants are entitled to judgment as a matter of law.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir.1984), cert. denied, 470 U.S. 1028 (1985). "[I]n determining whether factual issues exist, a reviewing court must view all the evidence in the light most favorable to the non-moving party." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir.1985). Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir.1988).
The following facts are undisputed: On December 29, 1987, the plaintiff ordered two sexually explicit magazines ("OSO Ass Volume 1" and "Oriental Anal # 1) while confined at the Pontiac Correctional Center. A staffer on Pontiac's review...
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