Smith v. Shawnee Library System

• Decision Date: 14 July 1995
• Docket Number: Nos. 94-2036,94-3424,s. 94-2036
• Parties: Thomas W. SMITH, Jr., individually and as representative of the Class of Inmates in the Protective Custody Unit at Menard Correctional Center, Plaintiff-Appellant, v. SHAWNEE LIBRARY SYSTEM, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 317

60 F.3d 317

Thomas W. SMITH, Jr., individually and as representative of the Class of Inmates in the Protective Custody Unit at Menard Correctional Center Plaintiff-Appellant, v. SHAWNEE LIBRARY SYSTEM, et al., Defendants-Appellees.

Nos. 94-2036, 94-3424.

United States Court of Appeals Seventh Circuit.

Argued March 29, 1995.

Decided July 14, 1995.

James W. Erwin, Thompson & Mitchell, St. Louis, MO (argued), for Thomas W. Smith, Jr.

Brian F. Barov, Office of Atty. Gen., Crim. Appeals Div., Chicago, IL (argued), for Shawnee Library System, Walter Brieschke, Debra Givens, Dwayne Kelly, Miles Fletcher, John Roosevelt, James A. Ubel, John Kellerhouse, Michael P. Lane, James Greer, Alan L. Frentzel, James H. Thieret, Ronald L. Fleming, Leanne Pate, Lisa Rea, Ray Quick, Thea Chesley, Marcia Behrens, Rick Sheppard, Correctional Officer Jaimet, Steven Ewell.

Terence J. Corrigan, Asst. Atty. Gen., Office of Atty. Gen., Crim. Appeals Div., Springfield, IL, Brian F. Barov (argued), Office of Atty. Gen., Crim. Appeals Div., Chicago, IL, for Illinois Dept. of Corrections, Menard Correctional Center.

Before CUMMINGS and KANNE, Circuit Judges, and WALTER, District Judge. ^*

KANNE, Circuit Judge.

Thomas Smith, an Illinois state prison inmate, claims he and other inmates in protective custody were denied meaningful access to the courts. We hold that the prison did not deny Smith meaningful access, but we also hold that the class action status of the litigation is void.

I. Background

From 1980 to 1992, Smith was a prisoner at Menard Correctional Center (MCC), a maximum security state prison in Menard, Illinois. Prison officials placed Smith in the protective custody unit (PCU), where prisoners were segregated from the general population for their own protection. The prison established the PCU pursuant to a federal court consent decree (unrelated to this litigation), into which it entered in 1981.

MCC maintained a fully stocked law library for prisoners to use. The law library was available to general population inmates five days a week for six hours a day. Up to twenty-five inmates at a time could browse freely. However, because inmates in the PCU could not safely mix with general population inmates, MCC constructed five wire mesh cells inside a room attached to the library. PCU inmates using the library were locked in those cells, and legal materials were delivered to them through a slot in the wire mesh.

PCU inmates could therefore not browse in the library; instead, non-inmate law librarians, as well as trained inmate law clerks, provided research and document preparation assistance to them. This assistance included bringing them books they wanted, both case reporters and finding aids such as law digests. PCU inmates could have as many books as they wanted in their library cells at one time. The library also maintained a "missing case file," updated twice a week, containing photocopies of cases inmates had torn out of case reporters.

A PCU inmate who wanted to use the library could either notify prison staff, notify inmate law clerks, or place a note in a special box by the PCU cellhouse door. PCU inmates had access to the library five days a week for approximately three hours a day although the exact hours varied slightly. Mondays, Wednesdays, and Fridays were reserved for PCU inmates with court deadlines, while Tuesdays and Thursdays were reserved for PCU inmates without immediately pressing legal business. In addition to using the library cells, PCU inmates could get photocopies and notaries brought to their own cells in the PCU cellhouse.

Smith is an accomplished "jailhouse lawyer," although professional counsel has represented him for almost all of this litigation. From the time he entered the prison system until 1991, Smith had filed 97 lawsuits, and he routinely assisted other inmates in research and case preparation.

On June 5, 1985, Smith filed a suit under 42 U.S.C. Sec. 1983 against various defendants connected with the prison, alleging that they had infringed his right of access to the courts. The case crawled along; Smith added more defendants and more factual allegations, and asked that the case be certified as a class action, with himself as class representative. On September 11, 1989, a magistrate judge certified the case as a class action and granted a preliminary injunction. The preliminary injunction required that PCU inmates get ten hours per week of unlimited access to the library. ¹

On March 30, 1994, a magistrate judge granted summary judgment for all the private defendants, and, on September 26, 1994, he dismissed the case against the state defendants--MCC and the Illinois Department of Corrections. Smith appeals only the summary judgment in favor of the individual defendants.

II. Analysis

We review a district court's grant of summary judgment de novo. Hedberg v. Indiana Bell, 47 F.3d 928, 931 (7th Cir.1995). We draw all reasonable inferences in favor of the nonmoving party. Id. A district court must grant summary judgment where the record before it shows 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party opposing a motion for summary judgment may not rest on the allegations in his pleadings; instead, he must come forward with evidence of a genuine factual dispute. Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1302 (7th Cir.1991). Conclusory allegations by the party opposing the motion cannot defeat the motion. Hedberg, 47 F.3d at 931; First Commodity Traders v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir.1985).

A. Appellate Jurisdiction

United States magistrate judges have overseen this case from its very early stages. For a magistrate judge to have the power to enter a final judgment, each party to litigation must explicitly consent. 28 U.S.C. Sec. 636(c); Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). If the parties do not so consent, the magistrate judge's decision is a recommendation reviewable by the district court only, and the Court of Appeals lacks jurisdiction over an appeal. Jaliwala v. United States, 945 F.2d 221, 223 (7th Cir.1991).

The original parties to this litigation jumped through the required hoops. On May 5, 1988, all defendants named at the time executed a written consent. On May 17, 1988, Smith executed a consent. However, Smith added eight more defendants in his Third Amended Complaint, filed April 6, 1990. Those defendants did not consent at the time, though they were represented by the same attorneys from the State of Illinois. Nonetheless, the case proceeded.

After oral argument, Smith brought the eight defendants' lack of consent to this Court's attention. We ordered a response from the defendants, who offered to cure the problem by submitting a belated consent through their attorneys (except for the one defendant who had died in the meantime--shades of Bleak House ). We must decide what effect, if any, this tangle of consents has on our appellate jurisdiction.

If the seven additional defendants had not submitted a belated consent, that would be the end of it. See Jaliwala, 945 F.2d at 224 (dismissing appeal because intervening defendant never consented to magistrate judge's entry of final judgment). However, in King v. Ionization Int'l, 825 F.2d 1180, 1185 (7th Cir.1987), we held that the parties could show that they had consented by submitting a stipulation well after the magistrate judge's entry of judgment. Moreover, in Mark I, 38 F.3d at 371, we addressed the flip side of the problem, where the non-consenting defendant refused to consent later. A defendant had been added after the initial consents were given, and the magistrate judge found against him at trial. After oral argument before this Court, the defendant refused his "belated opportunity to make his wishes known," declining to indicate his consent. We therefore refused to hear the appeal, id. at 371.

King controls the case before us as well. "The statute does not require a specific form or time of consent...." King, 825 F.2d at 1185. A late-submitted consent is "an unequivocal representation that the magistrate was acting with the parties' consent." Id. We must accept the seven defendants' consent, and we therefore have jurisdiction over this appeal. See also Brook, Weiner, Sered, Kreger & Weinberg v. Coreq, Inc., 53 F.3d 851 (7th Cir.1995) (discussing necessity of consent).

The problem with accepting late consents, as Smith points out, is that it allows parties to play strategy games. If a litigant knows that he or someone aligned on his side has not consented, he can keep silent, and grant his consent if the magistrate judge decides in his favor, but withhold his consent and get another crack at the pinata if the magistrate judge decides against him. See Caprera v. Jacobs, 790 F.2d 442, 445 (5th Cir.1986). Of course, if we did not accept late consents, a litigant who knew that the other side had not consented could wait until judgment and raise the problem only if he lost. Rather than write a treatise on game theory, however, we simply note that King controls.

B. Class Notification

The magistrate judge first certified this case as a class action on September 11, 1989, under Fed.R.Civ.P. 23(b)(2). Rule 23(b)(2) class actions generally ask only for declaratory or injunctive relief. Fontana v. Elrod, 826 F.2d 729, 732 (7th Cir.1987); Williams v. Lane, 129 F.R.D. 636, 639-41 (N.D.Ill.1990). The court has discretion whether to notify class members of such a Rule 23(b)(2) class action. Fontana, 826 F.2d at 732; see Kyriazi v. Western Elec. Co., 647 F.2d 388, 393 (3d Cir.1981).

Class actions under Rule 23(b)(3) allow class members to recover damages. However, members of a Rule 23(b)(3) class must receive reasonable notice and an opportunity to opt out; that...