“By failing to respond to the motion for summary judgment, Peretz concedes a number of damaging facts that, taken together, demonstrate that none of the named state employees were responsible for his purported constitutional deprivation.”
How later courts described this case
- “By failing to respond to the motion for summary judgment, Peretz concedes a number of damaging facts that, taken together, demonstrate that none of the named state employees were responsible for his purported constitutional deprivation.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3945
P ETER P ERETZ,
Plaintiff-Appellant,
v.
G REGORY S IMS, R OBERT E VANS, AND
T HOMAS P ATTERSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-CV-03022—Harold A. Baker, Judge.
A RGUED S EPTEMBER 19, 2011—D ECIDED N OVEMBER 15, 2011
Before EASTERBROOK, Chief Judge, and KANNE and
W ILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. Peter Peretz was convicted of
aggravated driving while license revoked and sentenced
to eighteen months’ imprisonment. The conviction
carried with it a mandatory minimum sentence of
180 days. After being awarded statutory good-time credit,
Peretz received a tentative nine-month prison sentence.
2 No. 10-3945
By statute, the Director of the Illinois Department of
Corrections (“IDOC”) may award up to an additional
180 days of meritorious good-time credit. Because the
full award of 180 days of additional good-time credit
would bring Peretz below the mandatory minimum
sentence of 180 days, however, Peretz was only awarded
87 days of meritorious good-time credit. Peretz filed suit
against three state employees, the prison warden and
two correctional counselors, alleging that the decision
to withhold the full award of meritorious good-time
credit permitted by statute was arbitrary. The district
court granted summary judgment in favor of the state
employees after Peretz failed to respond to their motion
for summary judgment. We affirm on the basis that
Peretz has not sued the proper parties in this case.
I. B ACKGROUND
Peretz was convicted of aggravated driving while
license revoked, 625 ILCS 5/6-303(a), (d-3) (2008), a Class 4
felony carrying a mandatory minimum sentence of
180 days’ imprisonment. Peretz was taken into custody
on February 17, 2007; on March 7, he was sentenced to
eighteen months’ imprisonment. The IDOC originally
calculated Peretz’s tentative release date as November 17,
2007, reflecting the February 17 custody date and statu-
tory good-time credit.1
1
Subject to certain enumerated exceptions, a prisoner in
Illinois is generally entitled to one day of good-time credit
for each day of his or her sentence. 730 ILCS 5/3-6-3(a)(2.1).
No. 10-3945 3
The IDOC Director then awarded Peretz an addi-
tional 87 days of meritorious good-time credit pursuant
to 730 ILCS 5/3-6-3(a)(3), resulting in a new release date
of August 20, 2007. Under this statute, the Director
“may award up to 180 days additional good conduct
credit for meritorious service in specific instances as the
Director deems proper.” Id. The Director only awarded
87 days to ensure that Peretz would not serve less than
the mandatory minimum sentence of 180 days. Thus,
Peretz served exactly 180 days in prison, satisfying the
mandatory minimum sentence, and was released from
prison on August 20, 2007.
Despite the discretionary language in 730 ILCS 5/3-6-3,
Peretz argues that meritorious good-time credit was
awarded as a matter of routine. Peretz asserts that the
Director’s failure to award the remaining 93 days of
meritorious good-time credit permitted by statute was
arbitrary, notwithstanding any reduction below
the mandatory minimum sentence, and amounts to a
deprivation of his liberty interest in violation of the Due
Process Clause of the Fourteenth Amendment. Accord-
ingly, Peretz brought suit on this basis under 42 U.S.C.
§ 1983 in the United States District Court for the Central
District of Illinois. Peretz sued three state employees:
Gregory Sims, the warden of the correctional center, and
Robert Evans and Thomas Patterson, two correctional
counselors in the IDOC.
On May 24, 2010, the state employees filed a motion
for summary judgment on three grounds: (1) Peretz
suffered no constitutional deprivation because he was
4 No. 10-3945
required by statute to serve 180 days of his sentence;
(2) the Director, not the named state employees, caused
the alleged constitutional deprivation; and (3) the state
employees were entitled to qualified immunity. Peretz
declined to respond to the motion for summary judg-
ment, despite the district court granting him two exten-
sions to file a response. The district court granted the
motion for summary judgment on November 19, 2010.
Citing Local Rule 7.1(D)(2), the court deemed the failure
to respond to the motion as an admission of the state
employees’ proposed undisputed facts, as well as an
admission of the motion. The court then granted the
motion for summary judgment on the basis that Peretz
suffered no constitutional deprivation.
II. A NALYSIS
Peretz does not assert that the district court abused
its discretion in ruling on the motion for summary judg-
ment without Peretz’s response, or that Peretz had insuf-
ficient time to file a response. See Deere & Co. v. Ohio Gear,
462 F.3d 701, 706 (7th Cir. 2006). Indeed, this would be
a difficult argument to make in light of the fact that the
court had already granted Peretz two time extensions
to file a response to the motion. See Spears v. City of India-
napolis, 74 F.3d 153, 157-58 (7th Cir. 1996) (district court
did not abuse its discretion in denying request for “emer-
gency” one-day extension to respond to motion for sum-
mary judgment and refusing to consider plaintiff’s late-
filed materials where plaintiff had previously been
granted two extensions). Instead, Peretz contends that
No. 10-3945 5
the district court erred in granting the motion for sum-
mary judgment because there was a genuine issue of
material fact, irrespective of his failure to respond to
the motion.
We review the court’s grant of summary judgment
de novo. Johnson v. Manitowoc Cnty., 635 F.3d 331, 334 (7th
Cir. 2011). Summary judgment is appropriate “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). “A court must
grant a motion for summary judgment against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.”
Bio v. Fed. Express Corp., 424 F.3d 593, 596 (7th Cir. 2005).
Ordinarily, “we review the facts and inferences in the
light most favorable to the nonmoving party.” Rain v. Rolls-
Royce Corp., 626 F.3d 372, 376 (7th Cir. 2010). Because
Peretz did not respond to the state employees’ motion
for summary judgment, however, the district court
granted the motion on the basis of the state employees’
statement of undisputed facts. Fed. R. Civ. P. 56(e)(2);
CDIL-LR 7.1(D)(2). Therefore, we base our decision on
the state employees’ version of the facts, but still view
those facts in the light most favorable to Peretz. Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). Although the
district court granted summary judgment on the basis
that Peretz suffered no constitutional deprivation, we
may affirm on any ground supported in the record, “so
long as that ground was adequately addressed in the
6 No. 10-3945
district court and the nonmoving party had an oppor-
tunity to contest the issue.” Cardoso v. Robert Bosch
Corp., 427 F.3d 429, 432 (7th Cir. 2005).
While Peretz contends that the denial of good-time
credit was arbitrary, there is no need to address the
matter because Peretz has not sued the proper parties.
By failing to respond to the motion for summary
judgment, Peretz concedes a number of damaging facts
that, taken together, demonstrate that none of the named
state employees were responsible for his purported
constitutional deprivation. The IDOC Records Office,
rather than the named state employees, calculates
inmate sentences and is responsible for reviewing
sentence calculations. The Director is responsible for
awarding statutory and meritorious good-time credit;
none of the named state employees had the ability to
change any inmate’s sentence or sentence calculation.
In fact, Evans and Patterson even brought Peretz’s com-
plaints about the purported miscalculation of his
prison sentence to the attention of the Records Office,
which confirmed that Peretz’s sentence calculation was
correct.
Oddly, Peretz’s brief does not even attempt to address
how the named state employees were responsible for
the arbitrary denial of Peretz’s meritorious good-time
credit, or how they had the ability to correct the situation.2
A genuine issue of material fact is not raised where a
2
Counsel for Peretz made no application for admission to
practice in this court, and thus made no appearance at oral
argument. As a result, this issue went unaddressed.
No. 10-3945 7
plaintiff does not “tie actions of the named defendants
to the injuries he allegedly suffered.” Grieveson v.
Anderson, 538 F.3d 767, 777-78 (7th Cir. 2008). Peretz
cannot demonstrate how any of the named state em-
ployees were responsible for the denial of the 93 days
of meritorious good-time credit to which he believes
he was entitled, or that they had the ability to alter this
award. The Director, not the named state employees,
had the ability to change Peretz’s award of meritorious
good-time credit. There is no genuine issue of material
fact because, even if the decision to withhold 93 days
of good-time credit was arbitrary, the named state em-
ployees were not responsible for the deprivation.
Summary judgment was therefore appropriate, and we
need not address whether Peretz suffered a constitu-
tional deprivation nor whether the state employees are
entitled to legislative immunity.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment.
11-15-11