Owens v. Hinsley

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3618

JAMES O WENS,

Plaintiff-Appellant,

v.

C HARLES H INSLEY, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 06-CV-380-DRH—David R. Herndon, Chief Judge.

S UBMITTED N OVEMBER 30, 2010 Œ —D ECIDED M ARCH 18, 2011

Before E ASTERBROOK, Chief Judge, and P OSNER and

W OOD , Circuit Judges.

W OOD , Circuit Judge. James Owens, an Illinois prisoner,

was housed at the Menard Correctional Center when

Œ

After examining the briefs and the record, we have

concluded that oral argument is unnecessary. Thus, the appeal

is submitted on the briefs and the record. See F ED . R. A PP .

P. 34(a)(2)(C).

2 No. 09-3618

he filed this action under 42 U.S.C. § 1983. The place of

confinement is all that connects his hodgepodge of allega-

tions, which the district court organized into seven

claims (some with subparts) against the 15 named defen-

dants. The court dismissed five of those claims at screen-

ing, see 28 U.S.C. § 1915A, and granted summary judg-

ment for the defendants on the other two. Finding no

merit in any of Owens’s arguments on appeal, we affirm.

The number of claims and defendants reflected

Owens’s failure to observe the requirements of Federal

Rule of Civil Procedure 20(a)(2) with respect to joinder

of parties. We emphasized in George v. Smith, 507 F.3d 605,

607 (7th Cir. 2007), that unrelated claims against different

defendants belong in separate lawsuits, not only “to

prevent the sort of morass” produced by multi-claim,

multi-defendant suits like this one, but also to ensure

that prisoners pay all fees required under the Prison

Litigation Reform Act, see 28 U.S.C. § 1915(b), (g). Com-

plaints like this one from Owens should be rejected,

George, 507 F.3d at 607, either by severing the action into

separate lawsuits or by dismissing improperly joined

defendants, see FED. R. C IV. P. 21; DirectTV, Inc. v. Leto, 467

F.3d 842, 844-45 (3d Cir. 2006); Elmore v. Henderson, 227

F.3d 1009, 1012 (7th Cir. 2000); Michaels Bldg. Co. v.

Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988). This

is not, however, a jurisdictional flaw, and so we pro-

ceed to analyze Owens’s allegations.

The evidence before the district court at summary

judgment can be summarized as follows. Owens began

a hunger strike in April 2004 to protest what he viewed

No. 09-3618 3

as indifference to his grievances about conditions at

Menard. He publicized his strike by communicating

with state officials and prison employees. After 21 days

Owens went to the infirmary, where he remained for

four days. He then voluntarily ended his hunger strike

after being assured that his grievances would be ad-

dressed. Owens, who is 5’ 4” and averages 195 pounds,

lost about 20 pounds during the hunger strike but

regained all of that weight. There is no evidence that

he suffered medical complications.

Believing that his grievances were still being ignored,

Owens began a second hunger strike in June 2004. After

25 days prison officials moved him from his cell to the

infirmary, where for almost three more weeks he

refused to eat. At that point administrators obtained an

order from a state court allowing them to force-feed

Owens, who ended the hunger strike on August 5 after

the first use of a feeding tube. This time he had lost over

30 pounds, but again there is no evidence of medical

complications. On August 8 he submitted a grievance to

his counselor complaining that during the two hunger

strikes he was left in his cell without medical moni-

toring for a total of 49 days. Owens maintained that he

should have been housed in the infirmary all that time.

His counselor did not respond.

In January 2005, Owens was placed in disciplinary

segregation and assigned to a cell with inmate Gordon.

For a month the two got along, but then without warning

or explanation Gordon hit Owens in the mouth, splitting

his lip. Gordon also threatened to hit him again. Owens

4 No. 09-3618

reported the punch to the guards on duty—defendants

Anderson and Niepert—but at summary judgment

he never said whether he also disclosed Gordon’s threat.

The two guards remained silent when Owens asked to

be released from his cell. Later that afternoon, when a

different guard was in view, Gordon swung again. Owens

evaded the punches, and the guard quickly intervened.

Owens was taken to the infirmary and given a salt-

water rinse to treat the small lacerations left in his

mouth by Gordon’s earlier punch. (Owens says in his

complaint and appellate brief that he was left with a

scar on his lip, but he submitted no admissible evidence

to substantiate this allegation.)

Owens next was housed with inmate Autin. For a

month they coexisted peacefully, but Autin ran out of

drugs to control his mental illness and cautioned Owens

to move elsewhere because he might lose control. Owens

told no one about this warning. On Autin’s fourth day

without medication, he swung at Owens but landed

no punches. Owens told a guard—defendant Smith—

about the incident, and Autin chimed in that he would

go after Owens again. Owens asked to be moved, but

Smith said he could not do anything that day. Hours

later Owens was conversing with another guard about

moving when Autin rushed from behind and shoved

him into the bars. The guard took Owens to the infirmary

with a bump on his forehead and a small abrasion on

one elbow.

These events underlie four of the claims in Owens’s

complaint. In one of these claims he contends that unspeci-

No. 09-3618 5

fied officials violated the Constitution by ignoring his

many and varied grievances; in another he insists that

his “right to peaceful demonstration” was infringed

when his second hunger strike was forcibly ended. At

screening the district court dismissed both of these

claims as frivolous, and we concur with this assess-

ment. Prison grievance procedures are not mandated by

the First Amendment and do not by their very existence

create interests protected by the Due Process Clause, and

so the alleged mishandling of Owens’s grievances by

persons who otherwise did not cause or participate in

the underlying conduct states no claim. See George,

507 F.3d at 609; Grieveson v. Anderson, 538 F.3d 763, 772 &

n.3 (7th Cir. 2008); Antonelli v. Sheahan, 81 F.3d 1422, 1430

(7th Cir. 1996). And as we said in Freeman v. Berge, 441 F.3d

543, 546-47 (7th Cir. 2006), an inmate conducting a

hunger strike does not have a constitutionally protected

right to refuse life-saving medical treatment.

Two other claims proceeded to summary judgment.

Owens contended that he should have been moved to the

infirmary for the duration of both hunger strikes and,

because he was not, that several named defendants had

been deliberately indifferent to the state of his health.

He also asserted that guards Anderson, Niepert, and

Smith violated the Eighth Amendment by failing to

protect him from the second assaults by Gordon and

Autin. The district court concluded that Owens had

failed to exhaust his administrative remedies for the

healthcare claim. See 42 U.S.C. § 1997e(a); Dole v. Chandler,

438 F.3d 804, 809 (7th Cir. 2006). The court rejected

Owens’s failure-to-protect claims for lack of an eviden-

6 No. 09-3618

tiary showing that could have supported a verdict in his

favor.

The latter ruling is correct. On the evidence presented

at summary judgment, a jury could not reasonably find

that the guards, by declining to move Owens immedi-

ately to another cell, deliberately ignored a substantial

risk that he would suffer serious harm at the hands of

his cellmates. See Farmer v. Brennan, 511 F.3d 825, 834

(1994); Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir.

2008). Gordon’s one surprise punch and Autin’s wild

swings did not give the defendants reason to believe

that Owens faced an imminent and substantial threat to

his safety. The litigants did not submit testimony from

Anderson, Niepert, or Smith, and so the record does not

reveal whether they reported the initial scraps to their

superiors or took other reasonable steps to prevent a

repetition. It does not matter. Even if the three

defendants shrugged off the minor fisticuffs, the

evidence at summary judgment shows only that they

misjudged the rifts between Owens and the cellmates

he had bunked with amicably for a month. Owens

offered no evidence that he told Anderson or Niepert

about Gordon’s threat to strike again, and Smith had

no reason to suspect that Autin, who had not managed

to land a punch, was a serious threat to Owens. Nothing

indicates that the risk either time to Owens was more

than minimal, see Dale v. Poston, 548 F.3d 563, 569 (7th

Cir. 2008), and when another scuffle signaled that

tension remained, prison staff quickly stepped in and

separated the inmates. Summary judgment for the

guards was appropriate.

No. 09-3618 7

The district court’s ruling on the medical-care claim

requires a closer look. At summary judgment Owens

tendered a copy of his grievance, dated August 8, 2004,

alleging that he was left in his cell without medical atten-

tion during substantial portions of his hunger strikes.

According to Owens, he gave this grievance to his coun-

selor but never received a reply, and so he forwarded

copies to the grievance officer in February 2005 and

to the Administrative Review Board in June 2005.

The district court acknowledged the significance of this

grievance but concluded that, since Owens had not dis-

cussed it in an affidavit or deposition, he lacked admis-

sible evidence that he gave the grievance to prison offi-

cials. In this respect, the court erred. Owens verified

his response in opposition to the defendants’ motion for

summary judgment, and that was enough to make his

allegations admissible. See 28 U.S.C. § 1746. As the

district court noted, Owens’s submission was not

literally an “affidavit” because he did not swear to the

content in the presence of someone authorized to ad-

minister oaths. See Elder-Keep v. Aksamit, 460 F.3d 979, 984

(8th Cir. 2006); Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.

1985); B LACK ’ S L AW D ICTIONARY 66 (9th ed. 2009). Never-

theless, a declaration under § 1746 is equivalent to an

affidavit for purposes of summary judgment. See, e.g.,

Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 749 n.5

(11th Cir. 2010); El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.

2008); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004);

Ford v. Wilson, 90 F.3d 245, 246 (7th Cir. 1996).

Yet even taking Owens at his word, we conclude that

he failed to exhaust. When an informal resolution is not

8 No. 09-3618

achieved by talking to a counselor, an inmate in Illinois

has 60 days from the date of the underlying incident to

submit a written grievance to the facility’s designated

grievance officer. 20 ILL. A DMIN. C ODE § 504.810; Dole,

438 F.3d at 809; Dixon v. Page, 291 F.3d 485, 489 (7th Cir.

2002). Owens ended his second hunger strike three days

before he drafted the August 8 grievance, and so he

had until early October 2004 to give it to the grievance

officer. By his own admission, Owens inexplicably

waited until February 2005. By then it was too late.

In the alternative the defendants argue that a lack of

evidence provided an independent basis for dismissing

this claim. We agree with this point as well. Owens’s

complete deposition was tendered at summary judg-

ment, and his testimony confirms that he lost weight

and became weak while on his hunger strikes but

suffered no medical complications. Prison administrators

have a right and a duty to step in and force an inmate

to take nourishment if a hunger strike has progressed to

the point where continuation risks serious injury or

death. Freeman, 441 F.3d at 546-47. But if weight loss

and temporary discomfort are the only consequences of

refusing to eat, then the inmate’s choice to go on a

hunger strike raises no Eighth Amendment concern.

See id. at 547; Rodriguez v. Briley, 403 F.3d 952, 953 (7th

Cir. 2005). From all that we can see, Owens’s claim is

baseless. Either this ground, on our de novo review, or

his failure to exhaust leads to the same conclusion: dis-

missal was required.

That leaves the other three claims dismissed at

screening, in which Owens principally alleges that he

No. 09-3618 9

suffered retaliation for filing grievances and was denied

medical and dental care. At screening the district court

signaled that it would have allowed these claims to

proceed except that Owens had not linked his allega-

tions of unconstitutional conduct to identifiable de-

fendants (or, in a few instances, had named only defen-

dants who could not personally have been involved in

the alleged violations). See Collins v. Kibort, 143 F.3d 331,

334 (7th Cir. 1998) (“A plaintiff cannot state a claim

against a defendant by including the defendant’s name

in the caption.”). These claims were dismissed without

prejudice. Owens does not argue that the court’s basis

for dismissal was erroneous, but instead contends that

his proposed amended complaint, which does identify

specific defendants, should have been allowed.

Owens filed his amended complaint in March 2007,

eight months after he filed suit and three months after

the district court had screened the original complaint.

The 246-paragraph document adds 21 pages and 29

defendants to the original complaint, and many of its

allegations date back several years, some as far as 2001. A

magistrate judge struck the new complaint. See F ED. R. C IV.

P. 72(a); S.D. ILL. L. R. 72.1(a)(1). The court was uncertain

whether the document had arrived in the clerk’s

office before a joint answer filed by several defendants,

see F ED. R. C IV. P. 15(a), but since Owens had not

complied with local procedure for amending a com-

plaint, the court struck the proposed pleading, see S.D.

ILL . L. R. 15.1. The court’s order offered corrective in-

structions in the event that Owens wanted to try again,

but when he did the following month he apparently

10 No. 09-3618

resubmitted the same complaint. This time the magistrate

judge denied leave to amend because Owens had

realleged the two claims that were dismissed with preju-

dice at screening.

We review a denial of leave to amend only for abuse of

discretion, Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.

2008); Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008),

and we find none here. Even if Owens made progress

in curing the deficiencies in the three claims that were

dismissed without prejudice at screening, he also tried

to evade the § 1915A ruling by pressing forward with

the claims that were dismissed for failure to state a

claim. And this action could not have been inadvertent;

Owens expanded the two claims to four times their

original length. The magistrate judge was not obligated

to reward intransigence; these claims are frivolous and

again would have faced immediate dismissal. We have

held that leave to amend may be denied if the new com-

plaint does not cure deficiencies in the old one and is

doomed to the same fate. E.g., Hukic v. Aurora Loan Servs.,

588 F.3d 420, 432 (7th Cir. 2009); Duda v. Bd. of Educ. of

Franklin Park Pub. Sch. Dist., 133 F.3d 1054, 1057 n.4 (7th

Cir. 1998).

We have considered the remaining issues in Owens’s

brief and conclude that none has merit. For these

reasons the judgment is A FFIRMED.

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