Bocock v. Dart

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHARLES BOCOCK (2018-0503001), )

)

Plaintiff, )

) Case No. 19 C 3877

v. )

) Judge Jorge L. Alonso

THOMAS J. DART, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Charles Bocock, brings this suit against defendant, Cook County Sheriff Thomas

J. Dart, pursuant to 42 U.S.C. § 1983, claiming that his First Amendment right to newspaper access

and Fourteenth Amendment right to due process were violated during his detention in Cook

County Jail. The parties have filed cross-motions for summary judgment. For the following

reasons, the motions are denied.

BACKGROUND

The parties have submitted statements of material facts and responses pursuant to Northern

District of Illinois Local Rule 56.1. Based on these statements and responses, the following facts

are undisputed or must be assumed to be true for purposes of the present motions.

Plaintiff was detained in various units within Cook County Jail from May 2, 2018, to July

17, 2021, and then again from June 15, 2022, to November 7, 2022. As the Sheriff of Cook County,

defendant is the official responsible for the operation of Cook County Jail.

Jail policy prohibits inmates from subscribing to daily newspapers. They are permitted to

receive newspaper clippings via mail, subject to inspection, and “[a] local daily newspaper in

general circulation . . . shall be made available to interested inmates” during scheduled recreation

time. (Pl.’s LR 56.1(b)(2) ¶ 9, ECF No. 142; Def.’s LR 56.1(b)(2) Resp. ¶ 60, ECF No. 145.) In

2022, the Jail’s practice was for its mail room supervisor, Ronald Ferguson, to pick up a bundle of

newspapers each morning for mail clerks to deliver, along with inmate mail, to the security post

of each division.

Plaintiff claims, however, that whenever he asked correctional officers for a newspaper,

his requests were refused. He filed numerous grievances in 2018, 2019, and 2022 concerning his

lack of daily newspaper access. At one point, the Jail responded to an August 2019 grievance by

telling plaintiff, “your concern has been addressed and newspapers are distributed on scheduled

recreation days,” but, plaintiff replied, “no newspapers [were] ever seen in ‘recreation areas.’”

(Def.’s LR 56.1(b)(2) Resp. ¶ 79, ECF No. 145.) On rare occasions, plaintiff was able to borrow a

copy of a newspaper or part of a newspaper, including the Chicago Tribune, Chicago Sun-Times,

and USA Today, from other inmates. (Pl.’s LR 56.1(b)(2) Resp. ¶¶ 31-32, ECF No. 142.)

Plaintiff received mail dozens of times during his detention. On at least two occasions, mail

addressed to plaintiff arrived at Cook County Jail, only to be returned to sender by the Jail’s

mailroom staff. On the first such occasion, a package from a charity known as “Prisoners Abroad”

arrived for plaintiff on January 3, 2019, but plaintiff received only a “Notice of Returned Mail”

form, dated January 13, 2019. This form stated that the package was returned to sender because

“newspaper [is] not allowed” at the Jail. (Id. ¶¶ 28-30.) Plaintiff later sent a letter to the charity to

ask if it had sent a package and what it contained, and the charity responded that it had sent him a

Guardian newspaper and some books. (Id. ¶ 37.)

Plaintiff submitted a grievance, dated April 10, 2019, related to the Jail’s mail process. He

stated that the Jail’s procedure for dealing with mail violated his due process rights because the

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Jail immediately returned any items that it deemed to violate its rules for incoming mail, without

allowing anyone other than the original processing person to verify and affirm the violation. (Id.

¶ 56.) The Jail responded that plaintiff must “follow the rules & regulations in regards to mail,”

and plaintiff replied by reiterating his position that due process prohibited the Jail from returning

mail to sender without allowing someone other than the person who opened the mail and identified

the alleged violation to verify and affirm it. (Id. ¶¶ 57-58.) The Jail responded, “contraband mail

will be returned to sender. Original response stands.” (Id. ¶ 59.)

On July 14, 2020, the Jail received a package, addressed to plaintiff, from “Magazine

Café.” (Id. ¶ 41.) The package was returned to sender the next day. (Id. ¶ 42.) The package

contained an Esquire magazine, and, according to Jail records, it was returned to sender because

the magazine contained a “nude picture & picture of money inside.” (Id. ¶ 44.) Plaintiff received

a Notice of Returned Mail informing him of the same. (Id. ¶¶ 45-46.)

The Jail’s official policy provides that mail found to contain contraband may be returned

to sender, but inmates shall be “notified in writing whenever their mail is returned to the sender

and be provided the reason for the return” as well as “means to appeal the denial.” (Id. ¶ 6.) The

Jail’s Notice of Returned Mail form describes the appeals process, which requires the inmate to

complete an Inmate Grievance form. (Id. ¶¶ 11-12.)

Acording to Mr. Ferguson, who plaintiff deposed as the Jail’s Federal Rule of Civil

Procedure 30(b)(6) witness, the Jail’s practice is to have clerks in the mailroom open packages

addressed to inmates and review them for contraband. (Id. ¶ 14.) If a clerk determines that the

package contains contraband, the item is sealed back up and returned to sender immediately. (Id.)

The clerk fills out a Notice of Returned Mail form, specifying the reason for the return, and the

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form is distributed to the inmate. The clerk also sees that the information is entered into the Jail’s

“CCOMS” database. If the inmate files a grievance to appeal returned mail, the employee who

handles the grievance uses the information in CCOMS to resolve the matter. (Id. ¶ 24.)

ANALYSIS

“The Court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011). The Court may

not weigh conflicting evidence or make credibility determinations, but the party opposing

summary judgment must point to competent evidence that would be admissible at trial to

demonstrate a genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629

F.3d 697, 705 (7th Cir. 2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). A genuine

dispute is one that could change the outcome of the suit and is supported by evidence sufficient to

allow a reasonable jury to return a favorable verdict for the non-moving party. Spivey v. Adaptive

Mktg. LLC, 622 F.3d 816, 822 (7th Cir. 2010). The Court applies these “ordinary standards for

summary judgment” in the same way whether one or both parties move for summary judgment;

when the parties file cross-motions, the Court treats each motion individually, “constru[ing] all

facts and inferences arising from them in favor of the party against whom the motion under

consideration is made.” Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017); see Reeder v.

Carter, 339 F. Supp. 3d 860, 869-70 (S.D. Ind. 2018).

“Section 1983 creates a species of tort liability,” Manuel v. City of Joliet, 137 S. Ct. 911,

916 (2017) (internal quotation marks omitted), against any “person” who, under color of state law,

“subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any

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rights, privileges, or immunities secured by the Constitution,” 42 U.S.C. § 1983. A local

government official such as Sheriff Dart may be sued under § 1983 either in his “official capacity

or in his individual, or personal, capacity.” Foy v. City of Chicago, No. 15 C 3720, 2016 WL

2770880, at *3 (N.D. Ill. May 12, 2016) (citing Kentucky v. Graham, 473 U.S. 159, 165-66

(1985)). Plaintiff is asserting only official-capacity claims in this case. (See Pl.’s Mem. in Opp’n

at 4, ECF No. 141 (citing Jan. 28, 2020 Order at 3, ECF No. 15).)

An official-capacity suit is essentially “another way of pleading an action against an entity

of which an officer is an agent,” and it is to be treated “in all respects other than name . . . as a suit

against the entity.” Graham, 473 U.S. at 165-66 (internal quotation marks omitted). “For Sheriff

[Thomas] Dart, as an elected official with decision-making authority over the jail[,] . . . an official

capacity claim against him is considered to be one against the Sheriff’s Office.” Hampton v. Hart,

No. 09 C 6269, 2011 WL 2837407, at *6 (N.D. Ill. July 18, 2011); see Scott-Pitts v. Cty. of Cook,

No. 18 C 432, 2018 WL 3626991, at *3 (N.D. Ill. July 30, 2018) (citing Franklin v. Zaruba, 150

F.3d 682, 686 (7th Cir. 1998) (explaining that Ҥ 1983 suits against sheriffs in their official

capacities are in reality suits against the county sheriff's department”)); see also Ebrahime v. Dart,

No. 09 C 7825, 2010 WL 4932655, at *5-6 (N.D. Ill. Nov. 30, 2010) (“The Cook County Jail and

the Cook County Department of Corrections are solely under the supervision and control of the

Sheriff of Cook County.”); Maldonado v. Garcia, No. 13 C 8981, 2015 WL 4483975, at *4 (N.D.

Ill. July 22, 2015) (“In Illinois, sheriffs have final policymaking authority over jail operations.”)

(internal quotation marks omitted).

A local government entity such as the Cook County Sheriff’s Office may be found liable

under § 1983, as interpreted in Monell v. Department of Social Services of City of New York, 436

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U.S. 658, 690-91 (1978), and its progeny, if an “official policy, widespread custom, or action by

an official with policy-making authority was the moving force behind [the plaintiff’s]

constitutional injury.” Daniel v. Cook Cnty., 833 F.3d 728, 734 (7th Cir. 2016) (internal quotation

marks omitted). “An unconstitutional policy can include both implicit policies as well as a gap in

expressed policies.” Id. “Inaction can also give rise to liability if it reflects the municipality’s

‘conscious decision not to take action.’” Bohanon v. City of Indianapolis, 46 F.4th 669, 675 (7th

Cir. 2022) (quoting Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 381 (7th Cir. 2017) (en banc)).

To establish municipal action via a custom or widespread practice that has “not received

formal approval through the body’s official decisionmaking channels,” Monell, 436 U.S. at 690-

91, plaintiff must “introduce evidence” sufficient to demonstrate that “acquiescence on the part of

policymakers was apparent and amounted to a policy decision.” Dixon v. Cook County, 819 F.3d

343, 348 (7th Cir. 2016). This is often done via evidence of sufficiently numerous examples of

“unlawful activity” to show that the practice was so “widespread” and “pervasive” as to indicate

acquiescence by policymakers. See Phelan v. Cook Cnty, 463 F.3d 773, 790 (7th Cir. 2006),

overruled by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016).

Where the plaintiff’s claim is that municipal action or inaction, though facially

constitutional, caused municipal employees to violate the plaintiff’s constitutional rights, the

plaintiff’s proof must satisfy “rigorous standards of culpability and causation . . . to ensure that the

municipality is not held liable solely for the actions of its employee.” Bd. of Cnty. Comm’rs of

Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 405 (1997); see id. at 403 (explaining that, in § 1983

actions, municipalities may not be held liable under a theory of respondeat superior, and citing

cases ). In such situations, the “plaintiff must demonstrate that the municipality itself acted with

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‘deliberate indifference’ to his constitutional rights.” Bohanon, 46 F.4th at 675 (quoting Brown,

520 U.S. at 407). This means proving “that it was obvious that the municipality’s action would

lead to constitutional violations and that the municipality consciously disregarded those

consequences.” First Midwest Bank Guardian of Est. of LaPorta v. City of Chicago, 988 F.3d 978,

987 (7th Cir. 2021). Stated differently, if the allegedly unlawful municipal action is a “gap” in

policy, the plaintiff must show that the municipality “has notice that its program will cause

constitutional violations.” J.K.J. v. Polk Cnty., 960 F.3d 367, 379 (7th Cir. 2020) (en banc)

(quoting Connick v. Thompson, 563 U.S. 51, 61-62 (2011)). “Typically notice is established by ‘a

prior pattern of similar constitutional violations.’” Bohanon, 46 F.4th at 676-77 (quoting J.K.J.,

960 F.3d at 380). Where the evidence falls short of establishing a pattern of incidents, “notice can

be inferred from the obviousness of the consequences of failing to act,” but only if the “risks of

municipal inaction [are] blatantly obvious.” Id. at 677 (citing cases).

Plaintiff seeks summary judgment on two claims of constitutional deprivations arising out

of his pretrial detention in Cook County Jail. First, he claims that he was deprived of his First

Amendment right to newspaper access. Second, he claims that he was deprived of his Fourteenth

Amendment due process right to meaningfully appeal the Jail’s decision to return mail addressed

to him. Defendants argue that they are entitled to summary judgment on both claims because the

Cook County Jail’s newspaper policy is constitutional and plaintiff had sufficient opportunities to

challenge the Jail’s rejections of his mail.

I. First Amendment Claim of Access to Newspapers

“Freedom of speech is not merely freedom to speak; it is also freedom to read.” King v.

Fed. Bureau of Prisons, 415 F.3d 634, 638 (7th Cir. 2005). “[I]mprisonment does not

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automatically deprive a prisoner of certain important constitutional protections, including those of

the First Amendment,” although “the Constitution sometimes permits greater restriction of such

rights in a prison than it would allow elsewhere.” Beard v. Banks, 548 U.S. 521, 528 (2006). Courts

must “accord substantial deference to the professional judgment of prison administrators,” who

may have legitimate reasons for imposing restrictions on newspaper access. See Overton v.

Bazzetta, 539 U.S. 126, 132 (2003).

“When a prison regulation impinges on inmates’ constitutional rights,” including First

Amendment rights, “the regulation is valid if it is reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). More specifically, determining whether the

regulation is constitutional depends on an assessment of four factors: “[1] whether the regulation

is rationally related to a legitimate and neutral governmental objective; [2] whether there are

alternative means of exercising the right that remain open to the inmate; [3] what impact an

accommodation of the asserted right will have on guards and other inmates; and [4] whether there

are obvious alternatives to the regulation that show that it is an exaggerated response to prison

concerns.” Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004) (citing Turner, 482 U.S. at 89-91);

see Beard, 548 U.S. at 530 (explaining that a prison policy prohibiting access to newspapers in a

unit for the prison’s most “difficult prisoners” was constitutionally justified, under the Turner

factors, by the need to provide “increased incentives for better prison behavior”).

The Court assumes, and defendant apparently does not dispute, that the Jail must provide

at least some newspaper access to inmates, as a general matter. Illustrating this point are two recent

cases decided by other judges in this district. The first is Koger v. Dart, 114 F. Supp. 3d 572, 579-

84 (N.D. Ill. 2015), in which the court weighed the above factors and ruled that Cook County Jail’s

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then-absolute, unconditional newspaper ban was unconstitutional. The court explained that there

was no true alternative means of exercising the First Amendment right at issue, which, the Supreme

Court has suggested, is “not simply a general right to read or find out about the news” but “a right

to read newspapers,” which provide a “‘depth and diversity of coverage’” that other media do not.

Id. at 581 (citing Beard, 548 U.S. at 526, 532, and quoting Thomas v. Leslie, 176 F.3d 489, 1999

WL 281416, at *8 (10th Cir. 1999) (unpublished table decision)). The court concluded that the

absolute ban on newspapers did not pass constitutional muster because, among other reasons,

“permitting newspapers in libraries and day rooms, but not individual cells . . . would

accommodate the right while completely addressing the jail’s [stated] concerns” about reducing

flammable and unsanitary clutter and limiting inflammatory information about other inmates’

charges and gang activity. Id. at 583.

The second illustrative case is Gonzalez v. Josephson, No. 14-CV-4366, 2019 WL

1013737, at *21-22 (N.D. Ill. Mar. 4, 2019). At issue there was the Will County Jail’s policy of

prohibiting inmates from subscribing to newspapers, in order to prevent cells from becoming

cluttered with flammable and inflammatory material, but “provid[ing] a copy of USA Today to

every housing unit every day.” Id. The court ruled that this policy survived constitutional scrutiny,

reasoning that the daily copy of USA Today provided to each housing unit is “what distinguishe[d]

this case from Koger v. Dart” because it allowed inmates “access to a comprehensive and up-to-

date news source.” 2019 WL 1013737, at *21-22.

In accord with these decisions, defendant’s official policy is to prohibit newspaper

subscriptions, but distribute newspapers to the various divisions of the Jail so that detainees have

access to them during scheduled recreation time. Plaintiff claims, however, that whenever he asked

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for a newspaper, he was refused, and he never actually had access to a newspaper, unless he was

able to borrow a copy from an inmate. He filed numerous grievances on the subject, while housed

in various units at various times, to no avail. Therefore, he claims, there was a de facto policy,

widespread practice, or custom, of denying inmates access to a daily newspaper. Defendant does

not dispute these facts by pointing to any contravening evidence, apart from noting that, on rare

occasions, plaintiff was able to borrow a copy of a newspaper. But these occasions were very rare,

“on average, once per year” (Pl.’s LR 56.1(b)(2) Resp. ¶ 32), so they hardly establish that the Jail

staff was meeting its obligation to permit inmates regular access to a “comprehensive and up-to-

date news source.” Gonzalez, 2019 WL 1013737, at *22.

Defendant contends that, even if true, these facts do not suffice to establish the prerequisites

for municipal liability under Monell. In particular, defendant argues that plaintiff has not relied on

evidence that other inmates were similarly deprived of newspaper access, so, according to

defendant, plaintiff cannot demonstrate that his constitutional deprivation was caused by a

widespread practice. And without evidence that the practice was widespread, defendant maintains,

there is no sufficient basis for any finding of municipal fault; that is, no jury could conclude that

the circumstances were such that the “risks of municipal inaction” were “blatantly obvious” to

Sheriff Dart. See Bohanon, 46 F.4th at 677.

This argument does not quite hit the mark. First, under the circumstances of this case, the

Court fails to see why plaintiff must demonstrate that other inmates were similarly frustrated by

the lack of newspaper access to establish a widespread practice. “Instead, it is enough [for him] to

present competent evidence tending to show a general pattern of repeated behavior (i.e., something

greater than a mere isolated event).” Davis v. Carter, 452 F.3d 686, 694 (7th Cir. 2006); see

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Thomas v. Sheahan, 499 F. Supp. 2d 1062, 1095 (N.D. Ill. 2007) (explaining, at summary

judgment, that “Plaintiff is not required to show that Cook County’s alleged unconstitutional

widespread practices actually caused pain and suffering to other inmates . . . . Instead, it is enough

that Plaintiff provides competent evidence tending to show that the alleged practices were, indeed,

widespread . . . . [and] truly evince the existence of a policy.”) (citing Davis, 452 F.3d at 695, and

Phelan, 463 F.3d at 789-90); see also Thomas v. Cook Cnty. Sheriff's Dep’t, 604 F.3d 293, 303-04

(7th Cir. 2010) (affirming the denial of Cook County’s motion for judgment as a matter of law on

this point in Thomas v. Sheahan, 556 F. Supp. 2d 861, 871 (N.D. Ill. 2008), because the plaintiff

“presented evidence that the jail officers had a [de facto] policy of failing to review medical

requests,” id.). Plaintiff testified that he was never provided with a newspaper and never saw any

newspapers provided to inmates during scheduled recreation, despite filing a grievance in 2018,

three in early 2019, one in August 2019, and several more spanning a period of approximately one

month in summer 2022, while housed in different units. This suffices to demonstrate a cognizable

pattern. “As in Thomas, the evidence here goes beyond an isolated act of an individual employee.”

Thompson v. Taylor, No. 13 C 6946, 2016 WL 5080484, at *8 (N.D. Ill. Sept. 20, 2016). There is

“evidence of gaps in the policies and practices that led to the [constitutional violation at issue], and

a jury could infer that the violation reflects a widespread issue.” Id. (citing Daniel, 833 F.3d at

735).

However, this “series of alleged bad acts is insufficient, by itself, to establish Monell

liability . . . . Plaintiffs must also provide evidence that the circumstances ‘brought the risk at issue

to the attention of’ Sheriff Dart.” Pindak v. Dart, 125 F. Supp. 3d 720, 762 (N.D. Ill. 2015) (quoting

Hahn v. Walsh, 762 F.3d 617, 637 (7th Cir. 2014)). There is no direct evidence that he was aware

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that inmates were not being provided with newspapers, contrary to the express policy, and, in a

situation like this, Monell liability only attaches if he acted, or failed to act, with “deliberate

indifference as to [the] known or obvious consequences.” Brown, 520 U.S. at 407 (internal

quotation marks omitted).

Plaintiff’s testimony establishes a troubling pattern of incidents in which he was refused

newspaper access, despite properly seeking it, properly grieving the refusal, and even filing this

lawsuit, which was already pending at the time of the 2022 grievances. It is hard to see what more

he could have done to bring the issue to the Sheriff’s attention. And the Koger v. Dart decision in

2015 provides critical context in which to assess defendant’s actions or lack thereof. After the

issuance of that decision, Sheriff Dart was on notice of the fact that inmates are entitled to

reasonable newspaper access, and Jail policy changed as a result—but defendant has adduced no

evidence that he did anything to implement that policy and actually provide newspaper access. A

reasonable juror could infer from the dearth of evidence on that point that Sheriff Dart did nothing

to ensure the implementation of the new policy and that it was “blatantly obvious” that “municipal

inaction” in that regard carried substantial “risks” of continuing constitutional violations. Bohanon,

46 F.4th at 677; see Glisson, 849 F.3d at 380-81 (reversing summary judgment for municipal actor

on Monell claim because a “jury could conclude that [the municipal actor] . . . made ‘a deliberate

choice to follow a course of action . . . from among various alternatives’ to do nothing” or “adopted

a policy of inaction”) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)) (other

internal quotation marks omitted); Gasaway v. Vigo Cnty. Sheriff's Dep’t, 672 F. Supp. 3d 651,

660-61 (S.D. Ind. 2023) (“To the extent that the Sheriff’s Department had a policy . . . a jury could

conclude that it was so ineffectual as to evince deliberate indifference.”) (citing Glisson, 849 F.3d

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at 382); Pindak, 125 F. Supp. 3d at 764. Because a reasonable juror could conclude that the

Sheriff’s action or inaction evinced deliberate indifference as to plaintiff’s constitutional rights,

and that the Sheriff’s action or inaction caused the infringement of his constitutional rights,

summary judgment for defendant is inappropriate.

But these are not the only conclusions that reasonable jurors might draw from the facts in

this case. Reasonable jurors could also conclude that it was not obvious to defendant that he could

not trust Jail staff with the simple task of providing newspapers to inmates during scheduled

recreation time, and their failure to do so was not down to his “conscious decision” but merely

their own negligence as “subordinate actors,” of which he was unaware. Glisson, 849 F.3d at 381;

see Hahn v. Walsh, 762 F.3d 617, 638 (7th Cir. 2014); Holmes v. Sheahan, 930 F.2d 1196, 1201–

02 (7th Cir. 1991) (“[W]ithout more evidence pointing to deficiencies in these procedures, [the

plaintiff’s] story suggests a problem with personnel and the implementation of policy . . . but not

a problem with County policy itself.”).

In Bohanon, on which defendant heavily relies, the district court denied the municipal

defendant’s motion for summary judgment, concluding that there was a genuine issue of material

fact as to whether the defendant made a “deliberate choice” to impose an inadequate policy,

reflecting deliberate indifference to an unjustifiable risk that the policy would result in violations

of the constitutional rights of citizens like the plaintiff. Bohanon v. Reiger, No. 16 CV 2117, 2018

WL 447714, at *10 (S.D. Ind. Jan. 17, 2018) (citing Glisson, 849 F.3d at 382). Following trial,

however, the district court granted the defendant’s motion for judgment as a matter of law,

explaining that there had been no evidence of a prior pattern of constitutional violations or that

“the unconstitutional consequences of failing to act were ‘so patently obvious’” that the defendant

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could be held liable without one, and the Seventh Circuit affirmed. Bohanon v. City of

Indianapolis, 491 F. Supp. 3d 367, 385 (S.D. Ind. 2020), aff’d, 46 F.4th 669 (7th Cir. 2022). This

case may play out in the same way. But in borderline cases that may depend on how the evidence

comes in at trial and on what inferences a factfinder is willing to draw, setting the case for trial is

a “better course” of action than choosing between competing motions for summary judgment. See

Gabor v. Dozier, No. 15 C 8508, 2021 WL 5882205, at *10 (N.D. Ill. Dec. 13, 2021) (denying

summary judgment on “borderline” Monell claim because “[t]he Supreme Court has admonished

trial courts that they should not ‘act other than with caution in granting summary judgment,’ and

they ‘may deny summary judgment in a case where there is reason to believe that the better course

would be to proceed to a full trial”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Therefore, both parties’ motions for summary judgment are denied as to this issue.

II. Fourteenth Amendment Claim of Deprivation of Due Process

Inmates have a liberty interest, protected by the due process clause of the Fourteenth

Amendment, in uncensored communications by mail.1 Bonner v. Outlaw, 552 F.3d 673, 676-77

0F

(8th Cir. 2009) (citing Procunier v. Martinez, 416 U.S. 396, 417 (1974), overruled on other

grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)). “Due process requires that the decision

to censor inmate mail must be accompanied by ‘minimum procedural safeguards.’” Miller v.

Downey, 915 F.3d 460, 466 (7th Cir. 2019) (quoting Martinez, 416 U.S. at 417). “This standard

has generally required officials to provide inmates with notice and an opportunity to object to a

1 Defendant sometimes characterizes the due process interest at stake in this case as a property

interest, but the Court does not understand plaintiff to be complaining about deprivation of

property, as opposed to liberty, in this case.

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confiscation of their mail.” Miller, 915 F.3d at 466 (citing Martinez, 416 U.S. at 418, and Perry v.

Sec’y, Fla. Dep't of Corr., 664 F.3d 1359, 1367 (11th Cir. 2011) (applying this standard)).

It is axiomatic that “due process is flexible and calls for such procedural protections as the

particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (cleaned up). “The

fundamental requirement of due process is the opportunity to be heard at a meaningful time and in

a meaningful manner.” Id. at 333 (internal quotation marks omitted). In Martinez, the Supreme

Court “affirmed the district court’s requirement of two-level review: ‘complaints [about censorship

of mail shall] be referred to a prison official other than the person who originally disapproved the

correspondence.’” Krug v. Lutz, 329 F.3d 692, 697 (9th Cir. 2003) (quoting Martinez, 416 U.S. at

418-19). The Supreme Court did not hold that the right to appeal to an official other than the

original censor is constitutionally required in all cases, stating only that the district court’s

imposition of that requirement was not “unduly burdensome.” Id. But some lower courts have

insisted that “the right to appeal the exclusion of incoming publications to a prison official other

than the one who made the initial exclusion is . . . necessary” to meeting the minimum-procedural-

safeguards requirement. Krug, 329 F.3d at 698; see id. at 698 n.6 (citing cases).

Plaintiff argues that the Jail’s appeal process is constitutionally deficient to the extent that

it consists of no more than a Jail employee comparing what is written on the grievance form, which

will necessarily be based on what the receiving clerk wrote on the Notice of Returned Mail, to the

data that the same clerk input into CCOMS. This is not a meaningful review process, according to

plaintiff, because at the time of the second-level review, the mail in question has already left the

premises, so the reviewing party has little more than the fact of the original decision to inform his

review.

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At least two district courts would agree, having employed this very reasoning in concluding

that prison administrators violated inmates’ due process rights by failing to provide a meaningful

appeal process, where the process in question permitted mail to be returned to sender before any

appeal was complete. See Jordan v. Sosa, 577 F. Supp. 2d 1162, 1169, 1172–73 (D. Colo. 2008);

Prison Legal News v. Stolle, 319 F. Supp. 3d 830, 852–53 (E.D. Va. 2015); contra McGann v.

Stock, 884 F.2d 582, at *4 (9th Cir. 1989) (unpublished table decision). The Court finds the

reasoning of these district court decisions persuasive, and defendant has not made any argument

to convince the Court otherwise.

The closest defendant comes is to argue that retaining the confiscated mail items until after

review of any grievance would be unduly burdensome. The Court is not persuaded. Notably, in

Jordan v. Sosa, the district court was generally receptive to arguments about unduly burdening

prison authorities, 577 F. Supp. at 1171, but, nevertheless, it considered prison authorities duty-

bound to retain a copy of withheld mail to allow for a meaningful review of their decision,

notwithstanding any burden. Id. at 1172-73; see id. at 1169 (noting that the circumstances of that

case “graphically illustrated” the “problem” that can arise when an inmate attempts to challenge a

decision about mail that has already been returned to sender). In this case, the Court does not need

to go so far as to hold that the Jail was required to retain the package in full, nor is the record

sufficiently developed to support such a holding. But at a minimum, the Jail was required to

document its decision well enough to permit a meaningful review by someone other than the

receiving mail clerk. Defendant has admitted that this was not its practice, and defendant cites no

evidence to suggest that doing so would have been an undue burden, nor is any undue burden

apparent. Indeed, in Prison Legal News v. Stolle, the sheriff of the jurisdiction in question was

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“commended” by the district court for “swiftly rectif[ying]” the “apparent infirmities with the . . .

policy” that “came to light during the pendency” of that case by instituting a new policy to provide

that “seized mail items are to be retained for 30 days to allow for their review in the event of a

challenge to the seizure.” 319 F. Supp. 3d at 853, 853 n.21. If the Virginia Beach Sheriff’s Office

can do it, one would expect the Cook County Sheriff’s Office to be able to do it, too. And

defendant’s citation to Orozco v. Dart, 64 F.4th 806, 820 (7th Cir. 2023), does not aid him, as the

portion he cites deals with the question of proper notice prior to sanctions for an inmate’s own

actions, as opposed to the question of providing a meaningful opportunity to be heard on a matter

outside the inmate’s control, namely, the censoring of incoming mail that the inmate has never

seen and may not know to expect.

Defendant also makes similar arguments to those he made in relation to the newspaper

policy issue, contending that, regardless of whether plaintiff can prove that he suffered a

constitutional deprivation, he cannot prevail on a Monell theory because there is no evidence to

show that other inmates were similarly frustrated by the process or otherwise show that the

constitutional deprivation was due to a widespread practice. Plaintiff deposed Ronald Ferguson,

the Jail’s mail room supervisor, pursuant to Rule 30(b)(6), and the witness specifically testified

that the Jail’s practice was to (1) immediately return any package that did not comply with Jail

rules for incoming mail, (2) state the reasons for the return on a Notice of Returned Mail and in

the CCOMS database, and (3) resolve any grievance concerning the returned mail based only on

the minimal information entered into CCOMS. As defendant admits (Def.’s Ex. R, ECF No. 145-

1), plaintiff asked for a witness knowledgeable about the Jail’s procedures and practices for these

grievances, and defendant supplied this witness, who testified that it was the Jail’s practice to

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return mail immediately, before any grievance was resolved, without information sufficient to

determine whether the original decision was erroneous. The Court fails to see why a reasonable

factfinder could not rely on this testimony to conclude that this was the Jail’s practice; that was

the whole point for which the testimony was sought and for which defendant offered it. And the

municipal fault issue does not present the same problem on this issue that it presents for the First

Amendment newspaper issue because “[m]unicipal fault is easily established when a municipality

acts . . . in a way that facially violates a right.” Bohanon, 46 F.4th at 675 (citing Brown, 520 U.S.

at 404-05).

The issue, therefore, reduces to whether the mailroom policy truly represents municipal

action; that is, “is the action about which the plaintiff is complaining one of the institution itself,

or is it merely one undertaken by a subordinate actor?” Glisson, 849 F.3d at 381. For the reasons

set forth above, the Court has no trouble concluding that plaintiff survives defendant’s motion for

summary judgment by demonstrating a genuine factual dispute on that issue. Whether the facts

demonstrate that plaintiff is entitled to judgment as a matter of law, however, is another matter.

There are gaps in the evidence that require the factfinder to make inferences, and the issue is not

well-suited to summary judgment. See Gabor, 2021 WL 5882205, at *10 (citing Anderson, 477

U.S. at 248); see also Hunt v. Cromartie, 526 U.S. 541, 553 (1999) (“Summary judgment in favor

of the party with the burden of persuasion . . . is inappropriate when the evidence is susceptible of

different interpretations or inferences by the trier of fact.”); El v. Se. Pennsylvania Transp. Auth.,

479 F.3d 232, 238 (3d Cir. 2007) (“Specious objections will not, of course, defeat a motion for

summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the

sufficiency of the movant’s proof, will.”). Plaintiff has adduced sufficient evidence to support a

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jury verdict in his favor, but the evidence is not so one-sided or conclusive that any reasonable

juror would be not only warranted but compelled to find in his favor at trial.

Finally, defendant argues that plaintiff has suffered no deprivation of due process because

various post-deprivation remedies are available to him, including the right to file a tort action under

state law. This argument is out of place in this case. The general rule requiring pre-deprivation due

process is relaxed only in cases of “random, unauthorized” misconduct, as a “‘rare exception to

due process norms.’” Bradley v. Vill. of Univ. Park, Illinois, 929 F.3d 875, 886 (7th Cir. 2019)

(quoting Brunson v. Murray, 843 F.3d 698, 715 n. 9 (7th Cir. 2016)); see Zinermon v. Burch, 494

U.S. 113, 127-28 (1990). The exception does not apply if the deprivation at issue is “predictable.”

See Easter House v. Felder, 910 F.2d 1387, 1400-02 (7th Cir. 1990) (en banc) (citing Zinermon,

494 U.S. at 136-37). Plaintiff does not claim to have been harmed by random, unauthorized

misconduct; he claims that the Jail’s standard practice deprives him of his right to uncensored mail

without the requisite minimum procedural safeguards, including a meaningful opportunity to

appeal the initial decision to an official who could take a fresh look at the matter. Defendant is not

entitled to summary judgment on this basis.

The Court concludes with a brief comment on the remedies available here. Plaintiff

concedes that this case is moot as to some of the relief he originally sought, especially injunctive

relief, because he is no longer in Jail custody. He now seeks only nominal damages and a

declaratory judgment, and to the extent he proves his case, “he is entitled to both of these forms of

relief.” Koger, 114 F. Supp. 3d at 584. Given those relatively low stakes, however, the Court trusts

that the parties will diligently exhaust all settlement possibilities before committing scarce public

resources to a trial on this matter.

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CONCLUSION

For the foregoing reasons, the motions for summary judgement [132] [136] are denied. The

parties shall meet and confer regarding the possibility of settlement and potential trial dates. They

shall file a joint status report by April 26, 2024. A status hearing is set for May 1, 2024.

SO ORDERED. ENTERED: March 29, 2024

HON. JORGE L. ALONSO

United States District Judge

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