Martin v. White

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KEVIN L. MARTIN,

Plaintiff,

v. CAUSE NO. 3:19-CV-1170-RLM

MARISHA WHITE, et al.,

Defendants.

OPINION AND ORDER

Kevin L. Martin, a prisoner without a lawyer, is proceeding “against Marisha

White in her individual capacity for denying him access to courts in violation of the

First Amendment, by preventing him from mailing his motion seeking an extension

of time to respond to the July 18, 2019, summary judgment motion in Martin v. Howe,

71C01-1906-CT-000238, resulting in the dismissal of his case[,]” and “against

Marisha White, Catheen Capron, and Kelsey Torres in their individual capacities for

retaliating against him in violation of the First Amendment, by withholding his

grievances and outgoing legal mail between August 2019 and October 2019[.]” ECF 6

at 6. The defendants filed a joint motion for summary judgment. Mr. Martin filed a

response. The defendants then filed a motion to strike, arguing that Mr. Martin’s 66-

page, handwritten response should be stricken because it doesn’t comply with the

federal or local rules.

The court first considers the motion to strike. The defendants assert that

Mr. Martin’s response exceeds the allowed page limit, doesn’t include a Response to

Statement of Material Facts, and doesn’t include a section of Additional Material

Facts. See N.D. Ind. L.R. 56-1(b)(2). They contend his response doesn’t properly cite

to the attached exhibits or explain the relevancy of those exhibits, leaving the reader

to guess at deciphering his arguments.

The defendants’ argument boils down to a claim that Mr. Martin’s response

brief is hard to follow, doesn’t address the points raised in their opening brief, and

doesn’t properly support his factual assertions. The Federal Rules address this

situation in Rule 56(e), which gives options for what to do if a party “fails to properly

support an assertion of fact or fails to properly address another party’s assertion of

fact.” Those options include giving a party an opportunity to support the fact,

considering the fact undisputed for purposes of the motion, granting summary

judgment based on that undisputed fact if otherwise appropriate, or issuing any other

appropriate order. Fed. R. Civ. P. 56(e). The Local Rules state that disputes about the

admissibility or materiality of evidence be raised in a brief, and not in a separate

motion to strike. See N.D. Ind. L.R. 56-1(f). So, too, for arguments that the response

brief doesn’t otherwise comply with summary judgment rules.

The court finds no basis to strike Mr. Martin’s response. Moreover, a review of

Mr. Martin’s filings reveals that he filed a Statement of Material Facts, mislabeled

as “Affidavit.” See ECF 119-1. Thus Mr. Martin has filed a response brief and

Additional Material Facts for the court to consider when ruling on the summary

judgment motion. Those filings make it clear that defendants are entitled to summary

judgment, so the court will rule on the motion now without a reply from defendants.

Summary judgment must be granted when “there is no genuine dispute as to

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

Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the

evidence is such that a reasonable [factfinder] could [find] for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a

genuine issue of material fact exists, the court must construe all facts in the light

most favorable to the non-moving party and draw all reasonable inferences in that

party’s favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). A party opposing a

properly supported summary judgment motion can’t simply rely on allegations or

denials in its own pleading, but rather must “marshal and present the court with the

evidence she contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621

F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture

will not suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir.

2009).

A. Access-to-the-Courts Claim

To establish a violation of the right to access the courts, an inmate must show

that unjustified acts by defendants acting under color of law hindered the inmate’s

efforts to pursue a non-frivolous legal claim, Nance v. Vieregge, 147 F.3d 589, 590

(7th Cir. 1998), resulting in actual harm to the inmate. Lewis v. Casey, 518 U.S. 343,

351 (1996). “Thus, when a plaintiff alleges a denial of the right to access-to-courts, he

must usually plead specific prejudice to state a claim, such as by alleging that he

missed court deadlines, failed to make timely filings, or that legitimate claims were

dismissed because of the denial of reasonable access to legal resources.” Ortloff v.

United States, 335 F.3d 652, 656 (7th Cir. 2003) (overruled on other grounds).

Mr. Martin attests that he gave his caseworker, Ms. White, a timely motion for

an extension of time to file a response to a summary judgment motion in a case he

was litigating in state court. ECF 119-1 at 2, ¶ 5. But that motion never arrived at

the state court, and summary judgment was granted in favor of defendants without

a response from Mr. Martin. See ECF 103-1 (Summary Judgment Order).

Ms. White argues that it’s irrelevant whether she failed to pass on the motion

to be mailed because the underlying state case was frivolous. ECF 104 at 3. In that

case, Martin v. Howe, No. 71C01-1906-CT-238 (St. Joseph Cir. Ct. filed June 26,

2019),1 Mr. Martin sued Arvil Howe (the public defender who represented him at his

criminal trial), Charles Lahey (the public defender who represented him on appeal),

Terri Rethlake (the St. Joseph County Clerk), and Jeffrey Sanford (a Superior Court

judge). The state court granted summary judgment in favor of Mr. Howe, Mr. Lahey,

and Ms. Rethlake without a response from Mr. Martin.2 See ECF 103-1 (Summary

Judgment Order). The state court dismissed the claims against Ms. Rethlake based

on absolute immunity and because Mr. Martin didn’t file the Tort Claim Notice 0that

1 The court is permitted to take judicial notice of “the actions of other courts or

the contents of filing in other courts” as well as “findings of fact from another court

proceeding only if the fact is not subject to reasonable dispute.” Tobey v. Chibucos, 890

F.3d 634, 647 (7th Cir. 2018) (citing Daniel v. Cook Cnty., 833 F.3d 728, 742 (7th Cir.

2016)); see also Fed. R. Evid. 201. The docket for this case, and all other State court cases

cited in this opinion are available for viewing at mycase.in.gov.

2 In a separate order, the court granted Judge Sanford’s motion to dismiss,

but neither side addresses that order.

is required before suing a county employee. ECF 103-1 at 4. In addition, the court

found:

The doctrines of collateral estoppel and res judicata operate to bar Martin’s

claims against Lahey and Howe. Both his post-conviction relief action (PCR

Cause No. 71D03-0806-PC-000022) and his previous tort case in which the

Defendants were granted summary judgment (Case No. 71C01-1803-CT-

000123) dealt with claims of alleged failures by his trial and appellate counsel,

and determined that there were none which were legally actionable. Claim

preclusion or collateral estopped ‘bars subsequent litigation of an issue

necessarily adjudicated in a former suit if the same issue is presented in the

subsequent suit.’ Crossan v. Berry, 829 N.E.2d 184, 192 (Ind. Ct. App. 2005).

The former adjudication ‘will be conclusive in the subsequent action even if the

two actions are on different claims.’ Id. A dismissal with prejudice is similarly

conclusive of the rights of the parties and is res judicata as to any questions

that might have been litigated. Afolabi v. Atl. Mortg. & Inv. Corp., 849 N.E.2d

1170, 1173 (Ind. Ct. App. 2006).

ECF 103-1 at 3-4. The court dismissed the claims against Mr. Howe and Mr. Lahey

on the basis of collateral estoppel and res judicata, and then proceeded to restrict

Mr. Martin from filing any future cases against these defendants without prior

permission. Id. at 3, 5.

Mr. Martin argues that the underlying state case wasn’t frivolous. He asks this

court to reexamine the finding of collateral estoppel; contending that the issues in the

three complaints weren’t identical, so the state court’s ruling was in error. Mr. Martin

further argues the claims weren’t precluded because he didn’t discover the existence

of the facts underlying the new case until recently.

The complaints in the three cases don’t need to be identical for a later case to

be precluded. Under Indiana law:

Claim preclusion applies where a final judgment on the merits has been

rendered and acts as a complete bar to a subsequent action on the same issue

or claim between those parties and their privies. When claim preclusion

applies, all matters that were or might have been litigated are deemed

conclusively decided by the judgment in the prior action. . . . Thus, a dismissal

with prejudice is conclusive of the rights of the parties and is res judicata as to

any questions that might have been litigated. . . .

Afolabi v. Atl. Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006)

(citations omitted) (emphasis added). Claim preclusion doesn’t have a stringent

identity-of-issues requirement; it requires only that “the matter now in issue was, or

could have been, determined in the prior action.” Id. Thus, the three complaints didn’t

need to be identical; if a claim could have been brought in an earlier case that

proceeded to final judgment, that claim can’t be brought in later litigation.

In Martin v. Howe, No. 71C01-1803-CT-000123 (St. Joseph Cir. Ct. decided

Apr. 25, 2019), the previous tort case that provided the basis for a finding of collateral

estoppel, Mr. Martin sued Mr. Howe and Mr. Lahey for legal malpractice based on

their representation of him in his 2007 murder trial and later appeal. The state court

concluded that the action against the two attorneys was untimely and barred because

Mr. Martin didn’t file the required Tort Claim Notice. Further, the state court

concluded that the finding in Mr. Martin’s post-conviction proceeding that neither

attorney was ineffective precluded the civil suit.

In this complaint, Mr. Martin doesn’t contest that he is challenging the

performance of his trial and appellate attorney in investigating and presenting his

criminal case, though he frames the issue as one of “fraud” under the Indiana Public

Record Act. ECF 118 at 29-30. He contends the state coached witnesses to lie and

concealed evidence that would have proven his innocence at trial. Id. at 30. He further

contends that the State concealed the affidavit for a search warrant and other test

results that, if discovered earlier, would have proven his Brady claim at his

postconviction hearing. Id. at 64.

Mr. Martin’s trial and appellate lawyer can’t be held liable for the State’s

alleged actions in concealing evidence. See Harris v. Kuba, 486 F.3d 1010, 1013-17

(7th Cir. 2007) (discussing how to prove a Brady violation). To the extent Mr. Martin

faults his trial and appellate attorneys for an inadequate investigation, res judicata

forecloses any challenge to their performance because the post-conviction relief court

already decided that they didn’t provide ineffective assistance of counsel. The

underlying lawsuit had no merit, which means that Mr. Martin can’t prevail on his

access-to-the-courts claim.

B. Retaliation Claim

Mr. Martin alleges that he filed numerous grievances against Ms. White, Ms.

Capron, and Ms. Torres about his legal mail between August and October 2019. He

alleges that these defendants started withholding his outgoing legal mail and

grievances after he started filing these grievances. “To prevail on his First

Amendment retaliation claim, [a plaintiff] must show that (1) he engaged in activity

protected by the First Amendment; (2) he suffered a deprivation that would likely

deter First Amendment activity in the future; and (3) the First Amendment activity

was at least a motivating factor in the Defendants’ decision to take the retaliatory

action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). To show causation,

Mr. Martin must show, based on admissible evidence, “a causal link between the

protected act and the alleged retaliation.” Woodruff v. Mason, 542 F.3d 545, 551 (7th

Cir. 2008) (internal quotations omitted). After this, “[t]he burden then shifts to the

defendants to show that they would have taken the action despite the bad

motive.” Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009). If the defendant

carries this burden, the plaintiff may still reach trial by showing that the defendant’s

reasons were merely pretextual. Valentino v. Vill. of S. Chicago Heights, 575 F.3d

664, 670 (7th Cir. 2009).

The defendants argue that Mr. Martin can’t prove that any defendant

intentionally withheld any grievances or legal mail, or that their actions were done

in retaliation for grievances. The outgoing mail logs from August 6, 2019, through

October 31, 2019, show over 170 entries for Mr. Martin, and he filed enough

grievances in that period to be designated a grievance abuser at the end of October.

When asked in discovery to produce “any and all documents that you contend were

improperly withheld,” he responded that his property was in the storeroom and

produced nothing. When asked in an interrogatory what specific items were withheld,

he listed only the July 2019 motion for an extension of time, which sparked his

grievances against the defendants and couldn’t have been caused by the grievances.

Otherwise, Mr. Martin states generally that he “filed a grievance on Ms. White about

Ms. White withholding grievances,” ECF 77 at 9, and that another inmate witnessed

“Ms. White’s retaliation 7 or 8 times for Martin filing grievances,” ECF 77 at 10.

During discovery, he listed dates on which he alleges the defendants violated his

rights without elaborating on what he claims they did on those dates. ECF 77 at 20.

Nowhere did he give any detail about a particular withheld grievance or piece of mail

besides the July 2019 motion.

In his response, Mr. Martin states generally that “[f]rom August through

October of 2019 [Martin] submitted grievances and legal mail to defendant Ms.

White, who withheld this material but claimed she forwarded it to Kelsey Torres and

Cathleen Capron.” ECF 118 at 11. Mr. Martin claims that he has more evidence of

withheld mail and grievances in his property in the storage room, but he was

prevented from going into the storage room to obtain that evidence. Yet he doesn’t

describe the evidence he says is in the property room. He would have personal

knowledge of the circumstances surrounding any withheld legal mail or grievances,

but he provides no details of those circumstances. This unsupported assertion that

evidence exists isn’t enough to create a genuine dispute that would require a trial. See

Gabrielle M. v. Park Forest-Chicago Heights, IL. Sch. Dist. 163, 315 F.3d 817, 822

(7th Cir. 2003) (“It is well established that in order to withstand summary judgment,

the non-movant must allege specific facts creating a genuine issue for trial and may

not rely on vague, conclusory allegations.”); Sommerfield v. City of Chicago, 863 F.3d

645, 649 (7th Cir. 2017) (“Summary judgment is not a time to be coy: conclusory

statements not grounded in specific facts are not enough.”) (quotation marks,

brackets, and citation omitted).

Mr. Martin also contends that Ms. White, Ms. Capron, and Ms. Torres have

presented conflicting stories in this case. In support, he merely cites to their

responses to his interrogatories and other discovery requests without pointing out

what factual discrepancies exist. The court has reviewed the documents, and the

defendants consistently deny withholding any legal mail or grievances. This doesn’t

create a genuine dispute for trial.

Finally, Mr. Martin argues that he should be allowed to convince a jury that

the defendants are lying. “[W]hen challenges to witness’ credibility are all that a

plaintiff relies on, and he has shown no independent facts—no proof—to support his

claims, summary judgment in favor of the defendant is proper.” Springer v.

Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (emphasis in original); see also Dugan

v. Smerwick Sewerage Co., 142 F.3d 398, 406 (7th Cir. 1998) (“[T]he prospect of

challenging a witness’ credibility is not alone enough to avoid summary judgment.”).

Summary judgment is warranted in favor of the defendants.

C. Objection to Magistrate Judge’s Ruling

Mr. Martin also filed an objection to the magistrate judge’s order May 4, 2022

order denying his motion for counsel. The magistrate judge concluded:

Mr. Martin argues he needs an attorney because he has been recruited

counsel in a previous case after the judge there deemed him incompetent to

litigate. See Martin v. Superintendent, No. 3:16-cv-357-JD (N.D. Ind. filed June

6, 2016) at ECF 194 (order of May 14, 2019). Mr. Martin is a prolific litigator.

Since he filed that case in which he was appointed counsel, he has filed dozens

of cases and through experience has gained competency in litigating.

. . .

. . . Mr. Martin’s discovery practice demonstrates that he is aware of the

elements he needs to prove and understands the methods he needed to use to

gather the necessary evidence. In fact, Mr. Martin has filed a successful motion

to compel. See ECF 91. Based on the filings in this case, the court determines

that Mr. Martin is able to continue representing himself. He is able to write to

the court and, although his filings are not always a model of clarity, he is able

to make himself understood.

ECF 107 at 2-3 (footnote omitted). Mr. Martin filed a motion for reconsideration,

which the magistrate judge also denied,

Mr. Martin contests the conclusion that his litigation skills have improved

since 2019. He argues he has a learning disability that makes it hard for him to read

and write and he still needs assistance. A magistrate judge’s order is reviewed under

Rule 72(a) of the Federal Rules of Civil Procedure, which provides in relevant part:

A party may serve and file objections to the [magistrate judge’s] order

within 14 days after being served with a copy. A party may not assign

as error a defect in the order not timely objected to. The district judge in

the case must consider timely objections and modify or set aside any part

of the order that is clearly erroneous or is contrary to law.

Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). Rule 72(a) grants magistrate

judges significant latitude in resolving non-dispositive matters. “The clear error

standard means that the district court can overturn the magistrate judge’s ruling

only if the district court is left with the definite and firm conviction that a mistake

has been made.” Weeks v. Samsung Heavy Indus. Co. Ltd., 126 F.3d 926, 943 (7th

Cir. 1997).

The magistrate judge’s ruling wasn’t clearly erroneous. When ruling on a

motion for counsel, a court looks at “given the difficulty of the case, does the plaintiff

appear competent to litigate it himself.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.

2007). After carefully reviewing Mr. Martin’s filings opposing summary judgment, it’s

clear that Mr. Martin was aware of what he needed to prove and was able to prepare

a response laying out his arguments. He attached several exhibits to his response and

cited to those exhibits throughout his filing to support his arguments. He didn’t

prevail at summary judgment because the State court case underlying the access-to-

courts claim was nonmeritorious and because he didn’t identify any mishandled mail

or grievances in the relevant time period. The specifics of the alleged mishandled mail

or grievances would have been within his personal knowledge, even if actual

possession of those items was outside his control. A lawyer wouldn’t have materially

improved the merits of the case. The magistrate judge’s assessment of Mr. Martin’s

competency was not clearly erroneous. The objection will be overruled.

For these reasons, the court:

(1) DIRECTS the clerk to separately docket Mr. Martin’s affidavit (ECF 119-1)

as a Statement of Material Facts, and docket it with the date of his summary

judgment response;

(2) OVERRULES the objection (ECF 122, 126);

(3) DENIES the motion to strike (ECF 121);

(4) GRANTS the defendants’ summary judgment motion (ECF 103); and

(5) DIRECTS the clerk to enter judgment in favor of the defendants and

against Kevin L. Martin.

SO ORDERED on September 14, 2022

s/ Robert L. Miller, Jr.

JUDGE

UNITED STATES DISTRICT COURT