Petition for Writ of Certiorari — Antonelli v. Caridine

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EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHENA

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No. 98-9938

IN THE

i

SUPREME COURT OF THE UNITED STATES ;

!

MICHAEL C. ANTONELLI — PETITIONER

(Your Name)

VS.

DALE CARIDINE, et al— RESPONDENT(S)

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari without

prepayment of costs and to proceed in forma pauperis

i} Petitioner has previously been granted leave to proceed in forma pauperis in the

following court(s):

United States District Court for the Northern District of Illinois,

Eastern Division Case # 97 CR 194 before the Honorable Jaon B Gottschal

{ ] Petitioner has not previously been granted leave to proceed in forma pauperis in any

other court.

YR-9938

AFFIDAVIT OR DECLARATION oP. 9 933

IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS No. vv

I, Michael Antonelli , am the petitioner in the above-entitled case. In

support of my motion to proceed without being required to prepay fees, costs or give security

therefor, I state that because of my poverty I am unable to pay the costs of this case or to give

security therefor; and I believe I am entitled to redress. IN THE

I further swear that the responses I have made to the questions and instructions below intoesbui

relating to my ability to pay the cost of proceeding in this Court are true. SUPREME COURT OF THE UNITED STATES

1. Are you presently employed? Yes X No __

a. If the answer is yes, state the amount of your salary or wages per month and give the

and of your employer. Approx $20.00/month @ FCI, Greenville

Box 5000, Greenville, Il 62246 Epps sas —

MICHAEL C. ANTONELLI — PETITIONER

b. If the answer is no, state the date of your last employment and the amount of salary or ' (Your Name)

wages per month which you received. ! ;

N/A =

2. Have you received within the past twelve months any income from a business, profession _ VS.

or other form of self-employment, or in the form of rent payments, interest, dividends, or other

sources? Yes X No__ Gifts & Donations from friends & relatives totaling

no more than $2,000 approximately in past year. . DALE CARIDINE, et al., — RESPONDENT(S)

a. If the answer is yes, describe each source of income and state the amount received

from each during the past twelve months. Cannot recall exact dates, names &

amounts. ON PETITION FOR A WRIT OF CERTIORARI TO

3. Do you own any cash or have a checking or savings account? Yes __ No _} United States Court of Appeals for the SEVENTH CIRCUIT

a. If the answer is yes, state the total value of the items owned. (NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

N/A

PETITION FOR WRIT OF CERTIORARI

4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable

(excluding ordi household ishings and clothing) Yes No X

property (excluding ordinary furnishings and clothing) Yes _ No _* MICHAEL ANTONELLI, Pro Se # 04053-164

a. If the answer is yes, describe the property and state its approximate value. (Your Name)

N/A Box 5000

. List the persons who are dependent upon you for support and state your relationship to (Address)

those persons. None At present

- Greenville, Illinois 62246

(City, State, Zip Code)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: May 24, 1999 ;

X

None

(28 USC Section 1746)

(Signature) (Phone Number)

ii

iii

4$- (933

QUESTION(S) PRESENTED Au tonells

l. Whether a district court can properly dismiss a claim of deliberate

indifference to medical needs on the ground that the proper defendant was

not named, when the same court denied discovery needed to reveal the name

needed to state the claim ?

iv

LIST OF PARTIES

{ ] All parties appear in the caption of the case on the cover page.

{x} All parties do not appear in the caption of the case on the cover page. A list of all parties to

the proceeding in the court whose judgment is the subject of this petition is as follows:

DALE CARIDINE

CALVIN EDWARDS

PAGE TRUE

Mr HENRY

MICHAEL QUINLAN

Ms HARRIS

JOHN MAGNUSON

TABLE OF AUTHORITIES CITED

TABLE OF CONTENTS

PAGE NUMBER

IED inincnecccccnisnscudvevetnnntiennnntaieiintitniniaisiniiatn etaatclemmninamtiietiaibinsastamisisiiatialinds 1 CASES

EE ee ee ee eee See ee

= Valona v United States Parole Commission, 165 F 3d 508 (7Th Cir 1998) . Sa

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......................0000 _3

ey Cae Ce i iccnteercicsccieneniectesrtctebititninbetneuiitemidntbeinenteiiiaaembandiualn wi |

as ee Ce Ce CN cndecsercinvibitectessttilnecccedicernsdtiaenissemimbeniante _

ia os

|

INDEX TO APPENDICES | |

APPENDIX A : Unpublished Order of the United States Court of Appeals .

For the Seventh Circuit dated February 26, 1999.

) STATUTES AND RULES

APPENDIX B : Memorandum Opinion and Order of the United States

District Court for the Northern District of Illinois ;

Eastern Division dated May 30, 1996. |

APPENDIX C : Memorandum Opinion and Order of the United States

District Court for the Northern District of Illinois

Eastern Division dated December 1, 1995.

APPENDIX D : Memorandum Opinion and Order of the United States

District Court for the Northern District of Illinois

Eastern Division dated September 22, 1994.

APPENDIX E

APPENDIX F OTHER

vi

vii

:

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[4 For cases om federal courts:

The opinion of the TES SND CE C QD Qa 6 AES .... to the

petition and is

{ ] reported at

[ scare Giada Ear Galialinn ise arn vit denen or,

ka is unpublished.

The opinion of the United States district court appears at Appendix ® w the

petition and is

{ } reported at

{ 4 is unpublished.

{ | For cases from state courts:

The opinion of the highest state court to review the merits appears at Appendix

the petition and is

[ ] reported at

[ ee en a

{ ] is unpublished.

The opinion of the court appears at Appendix

[x] For cases from federal courts:

The date on which the United States Court of Appeals decided my case was

February 26, 1999 .

x) No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of Appeals on

the following date: . and a copy of the order denying

rehearing appears at Appendix _—_i.

{ ] An extension of time to file the petition for a writ of certiorari was granted to and

inciuding (date) on (date) in

Application No. A-

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

{ }] For cases from state courts:

The date on which the highest state court decided my case was

. A-copy of that decision appears at Appendix :

{ ] A timely petition for rehearing was thereafter denied on the following date:

, and a copy of the order denying rehearing appears at

Appendix i.

{ ] An extension of time to file the petition for a writ of certiorari was granted to and

including (date) on (date) in

Application No.A-___.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITU1. .4AL AND STATUTORY PROVISION.

FIRST ANENDMENT

FIFTH AMENDMENT

EIGHTH AMENDMENT

- Access to the Courts

Due Process of Law

Cruel and Unusual Punishment

«VOLVED

STATEMENT OF THE CASE

On August 2, 1991, Petitioner was assaulted by a Deputy United States

Marshal in the federal building in Chicago. He suffered from a concussion

and his body was bruised and battered and he had a laceration on the back of

his head which was bleeding ultimately leaving a 5 inch scar. He was then

brought to the Metropolitan Correctional Center in Chicago. He was inter-

viewed by Unit Manager JOHN MAGNUSON. Magnuson knew of the injury and did

nothing. Later in the evening he was seen by a resident Physician's Assistan’

and told he could get some aspirins when he ultimately was assigned a unit.

When assigned to a Unit, he was forced to sleep in an upper-bunk. DALE

CARIDINE and JOHN MAGNUSON refused a lower bunk. Petitioner vomited and

could not eat. Petitioner was harrassed by MAGNUSON and CARIDINE. He never

got to see a doctor for days. When he did, he was told he suffered a con-

cussion. Petitioner signed up for “sick call" everyday. Because the policy

custom and practice at MCC (sic) was that those sick had to be awake when

"sick call” was conducted, petitioner failed to see a doctor for 5 days. He

was too sick to wake up. DALE CARIDINE later harrassed petitioner and had

confiscated petitioner's legal papers. He refused to return tham and advised

petitioner there was nothing he could do about it.

- Petitioner filed suit in federal court. He alleged that the “sick call”

procedure at MCC was unconstitutional. He alleged harassment by MAGNUSON

and CARIDINE and Warden PAGE TRUE's knowledge of the unconstitutional policy,

custom and practice denying petitioner his rights. He alleged CARIDINE had

denied him access to the courts.

CARIDINE and MAGNUSON were the only defendants left after the first

round of dispositive motions. (Appendix D) The Warden was dismissed. The

second round brought dismissal of CARIDINE and MAGNUSON as to the Eighth

Amendment claims. (Appendix C) CARIDINE was ultimately dismissed as to the

Access to the Courts claims. (Appendix B) Petitioner was denied access to

discovery and could never air his claims of unconstitutional policy, custom

and practice because he could never 4, find out the Physician Assistant's

R._.sONS FOR GRANTING THE PETITIv..

Petitioner brought the case to the SEVENTH CIRCUIT. He stated that

the district court erred in dismissing Warden PAGE TRUE as to the unconstit-

utional medical policy's, custom and practice. (they still exist to this day

at MCC Chicago) He specifically alleged that the court erred in denying his

discovery motion to compel production of the name of the Physician's Assistant

"mainly" responsible for the denial of medical treatment. (in conjunction with

the denials by CARIDINE and MAGNUSON)(the Seventh Circuit brings out a circ-

ular argument exculpating CARIDINE and MAGNUSON because petitioner used the

word "mainly" to delineate the Physician's Assistant's constitutional depriv-

ations) HE alleged error in dismissing MAGNUSON and CARIDINE's indifference.

He alleged CARIDINE's denial of access to the courts claim should not have

been so rudely dismissed.

The medical staff at MCC Chicago has long been grossly incompetent,

inadequate and has excessively violated the Eighth Amendment enough to shock

the conscience of the courts. The medical treatment there is intolerable.

It is fundamentally unfair. The problem is, almost nobody knows how to

litigate this and bring it to the attention of the courts. So it goes on,

and on, and on. It goes on to this very day. Same can be said of the con-

stant harassment by staff. This is deliberate indifference.

The main gist of petitioner's issue herein will be narrowed to the

dismissal of the claim that the Metropolitan Correctional Center has a blatant

unconstitutional policy, custom and practice of denying those medical care

who simply are too sick to wake up in the morning after having signed the

sick-call ledger the night before. That is how petitioner ended up not being

seen by a doctor for five-days. The initial Physician's Assistant contact

also could not be litigated solely because the district court denied him the

discovery needed to develope these claims.

5.

Only in a world of Kafka would a court dismiss a claim that a litigant

failed to name the defendant, after having denied the same litigant the

discovery needed to obtain the name needed to properly state his claim.

Similarly, only in a world of Kafka could a sick prisoner be expected to

appear at the "sick call" when in fact he was too sick to appear in the

firstplace. See Valona v United States Parole Commission, 165 F 3d 508

(7th Cir 1998)

Litigants need not plead legal theories and district judges should

afford the relief to which the prevailing party is entitled without regard

to errors in the pleadings. Valona, supra.

Petitioner never found out the name of the Physician's Assistant who

was responsible for treating him for the concussion. He also never was

allowed to pursue his claims that the policy, custom and practice at MCC

are unconstitutional.

Petitioner states that this Court should grant this petition to

right these wrongs.

5a

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Mla Crd

Date. May 24, 1999

United States Court of Appeals

For the Seventh Circuit

Chicago, Iinois 60604

Submitted February 22, 1999° "om,

| 71 SD ORD ep

Decided February 26, 1999 Pee Cragy fe Cree ®

” RULE 53

Before

Hon. John L. Coffey, Circuit Judge

Hon. Ilana Diamond Rovner, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

a

No. 96-2877 Appeal from the United States | District

Court for the Northern Distr

MICHAEL C. ANTONELLI, of Illinois, Eastern Division

Plaintiff-Appellant,

No. 93 C 4385

v.

David H. Coar, Judge.

DALE CARIDINE and JOHN

MAGNUSON

Defendants-Appellants.

ORDER

Michael C. Antonelli, a federal prisoner, appeals pro se the district court's grant of summary

judgment to the defendants in his Bivens action, alleging that medical treatment he received at the

Metropolitan Correctional Center (“MCC”) in Chicago, Illinois violated the Eighth Amendment and

that the seizure by MCC personnel of papers from his prison cell violated the Fourteenth Amendment.

See Bivens v. Six Unknown Named Agents, 403 U.S 388 (1971). We affirm.

* After violating his federal parole, Antonelli was arrested on August 2, 1991. While being

* After an examination of the briefs and the record, we have concluded that oral argument

is unnecessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a).

A

No. 96-2877 Page 2

processed for incarceration by a deputy marshal at the Dirksen Federal Building in Chicago,

Antonelli became involved in an altercation during which he suffered a cut to his head and some

bruises on his body. He vomited en route to the MCC. When he arrived at the MCC, Antonelli

complained of having a headache and experiencing dizziness and nausea. His intake interview was

conducted by Unit Manager Jon Magnuson, who referred him to medical staff and assigned him to

an upper bunk because no lower bunk was available. During his examination by a member of the

MCC medical staff, Antonelli again complained of headaches, dizziness, and nausea.

About a month after Antonelli arrived at the MCC, Correctional Officer Dale Caridine took

some legal papers from Antonelli’s locker. He told Antonelli that the papers “were taken for

investigation.” Ajthough Antonelli subsequently could not identify what papers had been confiscated,

he claimed that some of them were his personal legal papers and others were legal papers he was

preparing for another inmate.

In July 1993, Antonelli filed with the district court a 10-count complaint against seven

employees of Chicago’s Metropolitan Correctional Center in both their personal and official

capacities-then MCC Warden Page True, True’s predecessor MCC Warden Mark Henry, Regional

Director of the Federal Bureau of Prisons (“BOP”) Calvin Edwards, Director of the BOP Michael

Quinlan, an MCC correctional officer surnamed Harris, Officer Caridine, and Unit Manager

Magnuson. Antonelli alleged a host of violations of his constitutional rights, ranging from

unconstitutional denial of medical care and seizure of legal papers to improper interference with his

mail and the denial of a visit by his girlfriend. He sought compensatory and punitive damages, as well

as an injunction to prevent the unconstitutional actions from further reccurring at the MCC.

The district court dismissed seven of the counts. The remaining counts were as follows: a

count against Magnuson and Candine for deliberate indifference to Antonelli’ s medical needs: a count

against Candine for improperly seizing papers from Antonelli’s locker; and a count charging common

law negligence against the United States for the medical care which Antonelli received from the

MCC. The remaining parties--Magnuson, Caridine, and the United States--conducted discovery

relating to the three counts. When defendants did not turn over the documents requested by

Antonelli-e.g. names of government employees, his administrative remedies files with the BOP. his

arrest records—Antonelli moved to compel discovery. The court denied the motion without

explanation.

Magnuson, Caridine, and the United States moved for summary judgment on the three

remaining counts. The district court granted summary judgment on the two counts alleging improper

medical care, the court found that Antonelli's evidence was insufficient to show that Caridine and

Magnuson were deliberately indifferent to his medical condition. The court noted, for instance, that

Antonelli was seen by a member of the MCC's medical staff on the same day as his arrival at the

MCC. The-court, however, denied summary judgment on the count charging unlawful seizure of

papers. The court pointed out that although a post-deprivation institutional remedy existed, no

evidence was produced that Antonelli knew ofits existence. The court determined that Antonelli had

» |

No. 96-2877 Page 3

not been notified in accordance with prison policy: he had not been provided with an inventory of

the seized articles, the MCC had not apprised him of its seizure and recovery policies, and he had not

been informed of the prison’s post-deprivation recovery procedure.

Officer Caridine then moved to vacate the judgment on the third count. He argued that

Antonelli did not need to actually know of the existence of the BOP’s deprivation remedy; it was the

existence of an adequate remedy that mattered. The district court agreed, finding that Antonelli had

a post-deprivation remedy under the Federal Tort Claims Act-a remedy which Antonelli had

acknowledged but chose not to exercise. Finding that Antonelli knew about the FTCA, the court

vacated its order and entered summary judgment on the count alleging unlawful seizure of papers.

On appeal, Antonelli first argues that the district court erred in dismissing Warden True from

his Bivens action because the complaint adequately alleged the Warden's personal involvement.

Antonelli points out, for instance, that he alleged that Warden True negligently hired, trained, and

supervised Caridine and Magnuson, and that True oversaw the implementation of what Antonelli

refers to as the MCC’ s “unconstitutional policy, custom and practices regarding sick call procedures.

But as we noted in an earlier case involving Antonelli, a prison official bears no liability for 4

prisoner’s constitutional claims if his liability is attributed to him on account of the doctrine of

respondeat superior. See Antonelli v. Sheahan, 8\ F.3d 1422, 1428 (7th Cir. 1996). In the present

case, Antonelli fails to allege that Warden True had any personal or direct involvement in Antonelli’s

MCC custody or medical treatment. Although Antonelli alleged generally that True oversaw an

unconstitutional sick call policy, Antonelli does not allege that the Warden participated directly in the

day-to-day implementation of that policy. Liability is plausibly attributed toa higher official only if

he is shown to “actually have participated in the constitutional wrongdoing.” See Del Raine v.

Williford, 32 F.3d 1024, 1037 (7th Cir. 1994).

Antonelli next argues that summary judgment on his Eighth Amendment claim was improper

because Magnuson and Caridine were deliberately indifferent to his medical condition and because

the MCC failed to administer “proper medical attention” to the concussion he claims he received as

a result of the altercation at the Federal Building. Antonelli contends that his concussion was

manifestly serious and required immediate medical attention from the MCC staff, consequently, he

reasons the delay in his treatment reveals the deliberate indifference of Caridine and Magnuson. Since

Antonelli failed to file a response to defendants’ Local Rule 12(m) Statement of Uncontested Facts,

however, we treat those facts as uncontroverted. See U.S. Dist. Ct. N.D. Ill. R. 12(N); Corder v.

Lucent Tech., Inc., 163 F.3d 924, 927 (7th Cir 1998). Thus, we accept as true defendants’ assertions

that Antonelli received continued and reasonably prompt treatment of his ailments, that Magnuson

performed Antonelli’s intake, and that Antonelli was examined and treated for his head ailments by

MCC medical staff later on the day of his intake and on three other occasions within a month of his

entry. Beyond merely alleging that Caridine “was plain ignorant” and gave Antonelli a “hard time,

Antonelli does not establish that Caridine acted to aggravate or ignore his medical needs. Thus,

Antonelli cannot show that either Magnuson or Caridine was deliberately indifferent to his medical

needs. Nor can he show that Magnuson or Caridine, and the MCC violated his constitutional nghts

No. 96-2877 Page 4

by not responding to his request that he be assigned to a lower bunk to sleep. See Williams v. Ramos,

71 F.3d 1246, 1251 (7th Cir. 1995).

Next, Antonelli argues that the district court erred when it granted summary judgment to

Caridine on the count regarding the unauthorized confiscation of his papers. He claims that the

MCC's seizure of the papers denied him access to the courts and also violated his procedural due

process rights. But in his appellate brief, Antonelli admits that he was able to “reconstruct” the

missing records. By his own acknowledgment, Antonelli thus concedes that he has not suffered

actual injury and that he was not denied access to the courts. Since Antonelli fails to allege an actual

injury, he fails to state a claim of denial of access to the courts. See Lewis v. Casey, 518 U.S. 33

(1996); Hains v. Washington, 131 F.3d 1248, 1249(7th cir. 1997). Further, since a meaningful post-

deprivation remedy exists for him, Antonelli fails to successfully allege a due process violation. See

Zinermon v. Burch, 494 U.S. 113, 125-126 (1990), Hudson v. Palmer, 468 U.S. 517, 533 (1984).

As the district court nghtly discerned, even if Antonelli was unaware of the MCC’s post-deprivation

procedures, he had another viable post-deprivation remedy open to him--the Federal Tort Claims Act.

See Del Raine, 32 F.3d at 1046.

Finally, Antonelli argues that the district court erred in denying his motion to compel

production of certain documents that he claims he needed to successfully rebut defendant’s summary

judgment motion. We review the court's decisions regarding discovery for abuse of discretion. See

Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998). We will not disturb the district

court’s exercise of discretion, however, unless Antonelli has established that the denial of the

requested discovery resulted in “actual and substantial prejudice” to him. See Jurcev v. Central

Comm. Hosp., 7 F.3d 618, 627 (7th Cir. 1993). This he has not done. He argues only that what the

defendants produced was “superficial” and laments that he had been unable to discover the name of

the physician's assistant “mainly responsible for the non-treatment of the concussion.” This argument

implicitly acknowledges that Caridine and Magnuson were not “mainly responsible” for the “non-

_treatment” of his ailment, and that he blames an unidentified assistant rather than the defendants for

failing to treat him. Thus, the requested information would not have bolstered his efforts to

demonstrate deliberate indifference to his medical problems on the parts of Caridine and Magnuson.

Accordingly, the district court did not abuse its discretion in setting limits on discovery.

The judgment of the district court is

AFFIRMED.

>

IN THL UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL C. ANTONELLI.

Plainuff,

93 C 4385

v.

OFFICER CARIDINE, et al.

)

)

)

)

)

)

) Judge David H. Coar

)

)

Defendants.

MEMORANDUM OPINION AND ORDER

Defendant Caridine requests that this court vacate its order denying summary

judgment on count III of Antonelli's complaint. Count III involves the alleged seizure by

Caridine of Antonelli's legal papers during a shake-down at the Metropolitan Correctional

Center. See Antonelli vy. Caridine, No. 93 C 4385, 1995 WL 723767 (N.D.Ill. Dec. 1,

1995) (Coar, J.). Citing the Supreme Court's decision in Hudson v. Palmer, this court

acknowledged in that opinion the: ‘he unauthorized intentional deprivation of property by a

state employee does not violate the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.

486 U.S. » 533, 104 S. Ct. at 3204. The court further acknowledged that the Metropolitan

Corrections} Conzar has 0 pest-ageivedion poasadese for sosavery of nen-conmahend peresnal

property seized during a shake-down. The court nevertheless denied summary judgment

because Caridine failed to establish that Antonelli knew or had reason to know of the

prison's post-deprivation procedure. The court's concern was very basic: if Antonelli did

not know of the MCC's post-deprivation procedure, how could it be established on a Rule 56

motion that he had access to a meaningful post-deprivation remedy? The outcome certainly

would have been different i! the record established thut Antonelli knew about the MCC post-

deprivauon procedure but nevertheless deci’ i w seck any relef under u. The facts

presented to the court thus far show, however, that this is not the case. Antonelli testified

in his deposition that despite his repeated requests to have his property returned, Caridine

never informed him of the procedures that he needed to follow to reclaim his seized

property. (Whether Caridine or any other prison guard, epen. or employee informed or

failed to inform Antonelli of the MCC's procedure was an open question reversed for

resolution at trial.)

In the present motion, Caridine argues that it does not matter whether Antonell’ knew

of the prison's post-deprivation procedure; rather, he argues that the “it is the mere

availability of a post-deprivation procedure that satisfies the due process requirement.” This

argument is unpersuasive. Under defendant's reasoning, an available but grossly inadequate

post-deprivation proceeding would satisfy due process. Whether a post-deprivation procedure

exists is necessarily subsumed within the broader question of whether the posi-deprivation

procedure provides a meaningful remedy. The mere existence of a post-deprivation

procedure is not, without more, sufficient to satisfy due process. The focus is necessarily on

the adequacy of the post-deprivation procedure. Accordingly, this court rejects Caridine’s

first contention.

Caridine now argues for the first time that Antonelli's post-deprivation remedies for

the seizure of his legal papers were not limited to those provided by prison regulations.

Rather, Caridine argues that Antonelli also had an adequate remedy under the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §2761 et seq., for conversion or negligent removal. As

KOA

atin

Zinermon v. Burch, 494 U.S. 113, 128, 110 S. Cr. 975, 984 (1990) ("ijn some

circumstances . . . a posideprivation hearing, or a common-law tort remedy for erroneous

deprivation, satisfies due process”).

Where a federal statute or common-law tort provides an adequate remedy for a

deprivation of property, a claim for section 1983 liability “necessarily fails.” Cushing v.

City of Chicago, 3 F.3d 1156, 1164 (7th Cir. 1993); Del Raine v. Williford, 32 F.3d 1024,

1046 (7th Cir. 1994) (FTCA provided adequate post-deprivation remedy for a claim

concerning the loss of certain dictionaries confiscated from a prisoner), accord Hudson, 468

U.S. at 530-34, 104 S. Ct. at 3202-04; Stewart v. McGinnins, 5 F.3d 1031 (7th Cir. 1993),

cert. denied 114 S.Ct. 1075 (1994). The facts in Hudson and Stewart are closely analogous

to those at issue here. In Hudson, a prisoner incarcerated by the Commonwealth of Virginia

filed a section 1983 claim against Hudson, a prison guard, alleging that Hudson had deprived

him of certain property without due process of law. The prisoner claimed that Hudson had

intentionally destroyed several articles of noncontraband property (including legal papers)

belonging to the prisoner after Hudson seized the property during a shakedown search of the

prisoner's cell. The Supreme Court concluded that the prisoner's due process rights were

not violated because the Commonwealth of Virginia provided him with an adequate

postdeprivation remedy; namely, state law tort claims for conversion or detinue. Id. at 520

n.1 & 535, 104 S. Ct. at 3197 n.1 & 3024. In Stewart, several prison guards threw away

personal property confiscated from a prisoner's cell at Stateville Correctional Center during

two shakedown searches. The seized and destroyed property including a pair of blue jeans,

an electric fan and legal papers. The court found that the guards failed to follow established

procedures in conducting the searches, including their failure to issue a shakedown slip to the

Ko?

prisoner listing all « viliscaied property. The court nevertheless concluded, however.

that the prisoner's “due process rights were not violated when Stateville vilicers confiscated

and destroyed his Droperty in violation of IDOC regulations” because Illinois provided an

adequate postdeprivation remedy; namely, the prisoner could file a tort Claim in the Illinois

Court of Clairis. Id. at 1036.

In this case, Antone!li (a prisoner/litigator well versed with the FTCA) concedes that

he could have filed a tort ciiim “if he wanted to” and thus does not challenge Caridine's

contention that the FTCA pi ovides an adequate post-deprivation remedy. (Pi. Resp., at 42).

Based upon this concessior and the governing case law, the court hereby concludes that

Antonelli's section 1983 cl-im must fail.

WHEREFORE, for the foregoing reasons, Caridine’s Motion to Vacate this court's

order denying summary judgment on Cuunt III is granted. Summary judgment is hereby

am.

David H. Coar~

U.S. District Judge

emtered in Caridine’s favor on Count III.

Dated: May 30, 1996

|

sis 0 ag Aan

~~

_ -

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL C. ANTONELLI,

Plaintiff,

93 C 4385

v.

OFFICER CARIDINE, et al. Judge David H. Coar

Defendants.

MEMORANDUM OPINION AND ORDER >

This matter comes before the court on the defendants, United States of America, Dak

Caridine ("Caridine”) and John Magnuson's (“Magnuson”) Medien for Summary \fodguent ;

on the remaining counts of plaintiff, Michael C. Antonelli’s ("Antonelli") complaint.' For

the reasons set forth, the motion is granted in part and denied in part.

The relevant facts in this case are undisputed since Antonelli failed to file a response

to the defendants’ Local Rule 12(m) Statement of Uncontested Facts.’ See Local Rule 12(N)

‘Judge James F. Holderman previously dismissed all counts of plainuff's ten count

complaint, except Counts II and VI agains: Caridine and eT

Caridine. See Mem. Op. & Ord., Sept. 22. 1994 (Holderman, J.), as modified by

Sept. 27, 1994 (Holderman, J.). The United States, which | substituted in as a party

defendant, is sued in count VI under the Federal Torts Claim Act, 28 U.S.C. §2671 ef seq.

See Ord. of Dec. 6, 1993 (Holderman, J.). Count II alleges that the defendants were

deliberately indifferent to Antonelli's medical condition in violation of his constitutional ;

rights. Count Ill alleges that Caridine illegally seized certain legal papers held by Antonelli.

Finally, Count VI alleges that the defendants negligently failed to provide Antonelli

medical treatment. '

This case was reassigned to this court following my appointment to the bench in

November 1994.

?The defendants attached to their Memorandum in Support of Defendants Coe a

Summary Judgment the required Rule 56 cautionary instructions and warnings. See Lewis v.

Faulkner, 689 F.2d 100, 102 (7th Cir. 1982).

Cy 6 ia

- -

("All material facts set forth in the statement required of the moving party will be deemed to

be admitted unless controverted by the statement of the opposing party.”); Johnson v.

Gudmusson, 35 F.3d 1104, 1108 (7th Cir. 1994) (all material facts contained in movant's

uncontested 12(m) statement were accepted as true).

1. Facts

Caridine and Magnuson, both of whom are sued in their individual capacities, are

employees of the Federal Bureau of Prisons and are assigned to the Metropolitan

Correctional Center ("MCC") in Chicago, Illinois. (12(m), at 43).

On August 2, 1991, Antonelli was arrested by the Hickory Hills, Illinois police

department pursuant to a federal parole violator warrant. (12(m), at 7). Later that day,

Antonelli was involved in an altercation with a United States Deputy Marshal while he was

being processed for incarceration by the United States Marshals Service. During this

altercation, Antonelli suffered a cut on his head. (/d. at 48). Antonelli claims that he

became sick -- symptoms included nausea, dizziness and a headache -- and vomited at the

Marshals Service.’ (Antonelli Dep., at 5-6). He was subsequently transported to the MCC,

where he again vomited. (/d. at 7). He was then interviewed by Magnuson. (12(m), at 49).

He was assigned an upper bunk at his intake procedure as there were no lower bunk berths

available on his floor. (/d. at 411). Later that day, Antonelli was seen by a member of the

The record does not address the cause of the onset of these symptoms; namely,

whether they were the consequence of the alcohol and cocaine Antonelli had consumed

between the afternoon of August 1, 1991, and the 7:00 a.m. on August 2, 1991, or whether

they resulted from the altercation with the Deputy Marshal. See 12(m), at 41; Antonelli

Dep., at 5. At the time of his arrest, Antonelli described the extent of his intoxication as

“illegal to drive,” see Antonelli Dep., at 13, which may have been a conservative estimate.

#17

hea cmrwer o os TO

2

°

= -

"s medical staff. He complained of headaches, dizziness, and nausea. (/d. at 410). He

Tylenol for his headache. (/d.). He was told that he could get aspirin at his unit.

(Antonelli Dep., at 15).

Antonelli was again seen by the MCC medical staff at the sick call on August 6,

1991. (12(m), at 412). He complained of a headache but did not complain of dizziness or

nausea. (/d.). He was given Motrin. (/d.). He also requested that the medical staff assign

him a lower bunk because climbing into the upper bunk aggravated his headache. (/d. at

413). >

On August 9, 1991, Antonelli was again seen at the sick call. The medical staff

approved his request for a refill of his Motrin medication. (.2(m), at 414). Antonelli failed

to appear at the sick call for either August 13 or August 15, 1991. (/d. at 415).

On August 23, 1991, Antonelli again appeared at the sick call complaining of

headache and neck pain. (12(m), at 416). A skull x-ray was taken; the results were

negative. (/d.). Antonelli thereafter continually received tylenol, aspirin and/or motrin to

control his headaches. These medications relieved his pain. (/d. at 417).

On September 9, 1993, Caridine confiscated some unknown legal and personal papers

from Antonelli's locker. (12(m), at 418). Caridine advised Antonelli that the papers “were

taken for investigation.” (/d.). Antonelli testified that some of the confiscated papers were

his personal papers, although he has not been able to identify what papers were taken. The

remaining confiscated papers belonged to other inmates. (/d.).

On December 31, 1992, Antonelli filed an administrative tort claim with the Bureau

of Prisons in which he claimed under the Federal Tort Claims Act that the medical care he

ee |

“~«

ived in August 1991 at the MCC was “superficial and untimely.” (12(m), at 420). He

failed to name any individuals who performed negligent acts and failed to state any factual

basis for his negligence claim. (/d.).

Il. Standards

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories

énd admissions on file, together with the affidavits, if any, show that there is no genuine

Ue aS tO any material fact and that the moving party is entitled to a judgment as a matter of

lav.” Fed. R. Civ. Pro. 56(c); Cox v. Acme Health Serv. Inc., 55 F.3d 1304, 1308 (7th

Cii. 1995). A genuine issue of material fact exists for trial when, in viewing the record and

all reasonable inferences drawn from it in a light most favorable to the non-moving party, a

reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S. Ct. 2505. 2510 (1986); Hedberg v. Indiana Bell Tel. Co.,

—_—

Inc., 47 F.3d 928, 931 (7th Cir. 1995). The movant has the burden of establishing that

_

there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,

106 S. Ct. 2548, 2553 (1986). If the movant satisfies this burden, the non-movant must set

forth specific facts which demonstrate the existence of a genuine issue for trial. Fed. R.

Civ. P. 55(e); Celotex, 477 U.S. at 324. 106 S. Ct at 2553. Rule 56(c) mandates the entry

of 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 in which that party will bear the

burden of proof at trial.” Celotex. 477 U.S. at 322, 106 S. Ct. at 2552-53: Waldridge v.

American Hoechst Corp., 24 F.3¢ 918, 920 (7th Cir. 1994). A scintilla of evidence in

support of the non-moving party's position is not sufficient to oppose successfully a summary

4 at/6

-

' Judgment motion; “there must be evidence on which the jury could reasonably find for the

[non-movant]." Anderson. 477 U.S. at 250, 106 S. Ct. at 2511. The court holds pro se

prisoner litigants to the same substantive standards as other civil litigants when it decides a

summary judgment motion. See Kincaid v. Vail, 969 F.2d 594, 600 (7th Cir. 1992), cert.

denied 113 §. Ct. 1002 (1993).

lil. Analysis

A. Count II: Deliberaw: Indifference to Medical Condition

Antonell’ contends th. Magnuson was deliberately indifferent to his medical condition

because he told Magnuson during his intake interview that he was sick and that he needed to

see a doctor. (Artonelli Dep., at 16-17). Antonelli specifically told Magnuson that a

Deputy Marshal had Pusned him off his feet and caused him to hit his head. When he tried

(0 get up, he became very dizzy. (/d. at 17). Antonelli also told Magnuson that he felt like

he had rocks inside his head and that he had vomited at both the Marshal's office and the

MCC. (/d.). Antonelli contends that Magnuson did not take any action in response to his

complaints of ill health, and that Magnuson commented that Antonelli was going to be "a

thorn in my side.” (/d. at 18, 16-17). Antonelli maintains that Magnuson should have

gotten a doctor immediately. Antonelli further contends that Magnuson did not assist him in

his efforts to get reassigned to a lower bunk even though he told Magnuson that getting into

the upper bunk gave him a headache. (/d. at 20-23). Antonelli was eventually reassigned to

a lower bunk, but it took “weeks.” (/d. at 22).

Antonelli also contends that Caridine unconstitutionally denied him medical! attention

because he gave Antonelli “a hard time,” “was plain ignorant,” and did not explain to him

to sign up for the sick call. (Antonelli Dep., at 25-26). Antonelli further contends that

| he missed many of the sick calls during his first few days at the MCC because nobody

explained how the morning sick call operated. (/d. at 26-28).

Prison officials who are deliberately indifferent to the serious medical conditions of

prisoners violate the Eighth Amendment prohibi ion against cruel and unusual punishment

because their deliberate indifference cunstitutes an “unnecessery and wanton infliction of

}

pain.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976). Deliberate

indifference may be manifested by prison doctors in their resp »nse to a prisoner's medical

needs or by prison guards who intentionally deny or delay access to medical attention or

intentionally interfere with the treatment once prescribed. Id. at 104-05, 97 S. Ct. at 291.

Prison officials may thus violate a prisoner's eighth amendment rights by failing to “promptly

and reasonably procure medical aid” for a prisoner who suffers a serious illness or injury."

Wood v. Worachek, 618 F.2d 1225, 1233 (7th Cir.1980). The prisoner's medical condition

or illness must be serious before such a failure can rise to the threshold of a constitutional

violation. Davis v. Jones, 936 F.2d 971, 972-73 (7th Cir. 1991); Matzker v. Herr, 748

F.2d 1142, 1147 n.3 (7th Cir. 1984), overruled in part on other grounds Salazar v. City of

Chicago, 940 F.2d 223, 240 (7th Cir. 1991)

"Deliberate indifference” to a prisoner's serious medical conditioners “is merely a

synonym for intentional or reckless conduct.” Brownell v. Figel, 950 F.2d 1285, 1290 (7th

Cir. 1991) (citations omitted). Reckless conduct, in turn, is “used in the constitutional sense;

that is, conduct that is so dangerous that the defendant's knowledge of risk can be inferred."

Id. Only deliberately indifferent conduct can violate the eighth amendment: a prison’s

#18

rtent failure to provide adequate medical care or a physician's negligent diagnosis do

not satisfy the requisite culpable state of mind. See Wilson v. Seiter, 501 U.S. 294, 297,

111 S. Ct. 2321, 2323 (1991) (citing Estelle, 429 U.S. at 105, 106, 97'S. Ct. at 292);

Holmes v. Sheahan, 930 F.2d 1196, 1200 (7th Cir.), cert. denied 502 U.S. 960, 112 S.Ct.

423 (1991).

Antonelli has failed to establish that any of the defendants acted with deliverate

indifference to his self-proclaimed “serious” medical condition. The undisputed facts

establish that Magnuson's alleged failure to request medical assistance for Antonelli is

groundiess. A physician's assistant examined Antonelli on the evening of August 2, 1991,

within hours of his request for medical attention. Antonelli contends that the delay ‘yas too

long, but has no factual basis to establish cuher directly or by inference that Magnuson was

responsible for the delay or was deliberately indifferent to Antonelli's medical condition.‘

Antonelli complained to Magnuson that he had a headache and that he had vomited both at

the Marshal's office and upon his arrival at the MCC. Nothing about Antonelli's self-

described medical condition was objectively serious enough to warrant immediate medical

attention, which the records of his examination on August 2, 1991, confirmed. See Davis,

936 F.2d at 972 (police officers must obtain medical attention for a pretrial detainee only

when the injury objectively appears serious). In any event, Antonelli received medical

attention within a reasonable period of time. See Murphy v. Walker, ki F.3d 714, 717 (7th

Cir. 1995) (two hour delay between the time the prisoner broke his nat and when he was

i

|

‘Antonelli conceded in his deposition that he did not know what action Magnuson

undertook to get him medical attention. (/d. at 19)

o>

taken to a hospital was not unreasonable).

In addition, Magnuson's failure to assign Antonelli to a non-existent lower bunk does

not violate the eighth amendment, see generally Harris v. Fleming, 839 F.2d 1232, 1235-36

(7th Cir. 1988), particularly where, as here, the physician's assistant did not indicate that

Antonelli's medical condition required a lower bunk berth.’ Accordingly, Antonelli cannot

establish that Magnuson was deliberately indifferent to his medical condition as a matter of

law.

Antonelli's claim that Caridine was deliberately indifferent to his medical condition is

also completely unfounded. When asked to identify what Caridine did or failed to do that

deprived him of medical attention, Antonelli, in a very disjointed answer, could not identify

any improper conduct by Caridine other than to state that Caridine gave him a “hard time”

and was “plain ignorant." See Antonelli Dep., at 25-26. Antonelli's conclusory assertions

fall leagues short of establishing that Caridine was deliberately indifferent to his medical

condition. Antonelli's related assertion that Caridine failed to explain to him the sign-up

procedure for the morning sick call also fails to establish that Caridine acted with deliberate

indifference. The undisputed facts establish that Antonelli was first examined on the sick call

on August 6, 1991; hence, any failure by Caridine to explain the sick-call procedure had to

have occurred between August 2 and August 6, 1991. Yet, Antonelli did not establish that

he spoke with Caridine during this time period, much less that he asked Caridine how the

*See Antonelli Dep., at 31-32, where he admitted that he did not ask the physician's

assistant who treated him on August 2, 1991, for an order stating that he needed a lower

bunk bg in fact never received an order indicating that a lower bunk berth was medically

required.

sick call procedure worked and Caridine refused to explain it to him.

Accordingly, Antonelli cannot establish that Caridine or Magnuson were deliberately

indifferent to his medical condition as a matter of law.

B. Count Ill: Seizure of Papers

In count III, Antonelli contends that Caridine seized certain papers from his locker in

violation of his due process rights under the fourteenth amendment. As previously

established, some of the papers belonged to another prisoner and the remainder were

Antonelli's personal papers, although he cannot identify what papers were taken. The papers

may have been Freedom of Information Act requests.° (Antonelli Dep., at 41, 43-46).

Caridine contends that Antonelli's due process rights were not violated as a matter of

law because prison regulations provided a meaningful post-deprivation remedy that satisfied

Antonelli's due process rights. See Hudson vy. Palmer, 468 U.S. 517, 533, 104 S. Ct.

3194, 3203-04 (1984). More specifically, the prison regulations provide a prisoner with 120

days following seizure of an item during a shake-down to establish ownership of the item; if

the prisoner establishes ownership and the item is not contraband, it will be returned to the

prisoner. See Baete Aff., at 46. To that end, the defendants’ contend t'at “[u}pon

confiscating papers from Antonelli's locker, the BOP provided him with an inventory and

notice that he had 120 days to establish ownership of the materials;" if he had done so, the

materials would have been returned to him. (12(m), at 419). Caridine thus argues that

Antonelli cannot establish a due process violation because he never exercised his rights under

‘The legality of the seizure of the other inmate's papers is not at issue.

#2/

the prison regulations.

The record does not establish, however, that Antonelli knew of this post-deprivation

procedure. Although the 12(m) statement provides that the "BOP provided [Antonelli] with

an inventory and notice,” the portion of the record cited by the defendants as support for this

statement fails to do so. The defendants cited paragraph 6 of Steve Baete's Affidavit,’ which

establishes only that the MCC has a procedure for affording post-deprivation relief. Baete's

affidavit does not state that Antonelli was provided with an inventory of the seized articles or

notice of the procedure; in fact, Baete properly concedes that he “was not the Chief

Correctional Supervisor when Mr. Antonelli was incarcerated at MCC Chicago and was not

involved with his alleged confiscation of legal materials." (Baete Aff., at 41). The

defendants have not otherwise established that Antonelli was provided with an inventory of

the seized papers and notice of the 120 post-deprivation recovery procedure. Moreover,

Antonelli testified that Caridine never informed him of his rights under the applicable prison

regulations despite his repeated requests to have his property returned. See Antonelli Dep.,

at 45. The defendants have likewise failed to establish that Antonelli knew or had reason to

know of this prison regulation. Accordingly, this court cannot determine on the record

before it whether the prison regulation provided a meaningful post-deprivation remedy that

protected Antonelli’s due process rights.

Caridine alternatively argues that Antonelli does not have a viable constitutional

violation since he cannot establish any injury or damages resulting from the alleged violation.

See Niehus v. Liberio, 973 F.2d 526, 531-32 (7th Cir. 1992) ("There is no tort without an

"Baete is the Chief Correctional Supervisor at the MCC. (Baete Aff., at 41).

“—- .

O23

» *@ %&

a

aa be

__

- 1 -

a

injury ... and this is true of constitutional as of ordinary torts.”) (citations omitted).

Caridine contends that Antonelli cannot establish damages because Antonelli never identified

with particularity the legal papers that Caridine allegedly seized. The closest that Antonelli

can come is that the papers were Freedom of Information Act requests, which Antonelli

concedes he retyped and eventually litigated. (Antonelli Dep., at 46-47). This theory,

hcwever, is unavailing. If Antonelli's due process rights were violated, he sustained an

injury. |

In the absence of uny objectively verifiable evidence that the defendants provided

Antonelli with an inventory of the seized article and notified him of the post-deprivation

recovery procedure, the questions as to whether Antonelli's due process rights were violated,

the extent of his injury resulting from that violation and the compensation to be provided for

that injury are to be determined by a jury.

C. Count VI: Negligent Medical Treatment

Finally, there are no facts that establish, either directly or indirectly, that the

defendants either negligently denied Antonelli medical treatment or that the medical treatment

he received was negligently provided. The record establishes that Antonelli received medical

treatment for his alleged headaches and injuries on a number of occasions in August 1991.

His pain was treated successfully with medications over t.me (the medication's failure to

immediately relieve the pain does not, of course, give rise to a cognizable claim of negligent

treatment) and cervical x-rays were normal.

Antonelli has not identified any improper treatment he received, except that he

contends that the physician's assistant who examined him on August 2, 1991, should have

11

#23

ordered cervical x-rays to rule out a concussion. Antonelli has not provided the court with

any evidence or expert testimony to establish that such an examination was warranted in light

of the symptoms of which he complained. In the absence of such testimony, this court will

not assume the role of a physician to assess Antonelli's medical condition and determine what

medical treatment was necessary and what was not. See Coryell v. Smith, 274 lil. App. 3d

543, 653 N.E.2d 1317, 1320 (ist Dist. 1995) ("Expert evidence is required to support a

charge of malpractice when the assessment of the alleged uegligence required knowledge,

skill, or training in a technical area outside the comprehen sion of lay persons.”); Saxton v.

Toole, 240 Ill. App. 3d 204, 210, 608 N.E.2d 233, 238 (ist Dist. 1992) (“In the absence of

expert testimony that any act by the defendant could be said, within a reasonable degree of

medical certainty, to have caused the plaintiff's injuries, it would be impossible for a jury

verdict in plaintiff's favor to stand, and a directed verdict would be appropriate."). Antonelli

has not otherwise produced any facts to establish, either directly or indirectly, that the prison

physicians and physician's assistants negligently rendered medical treatment.’ Accordingly,

Antonelli cannot establish that the medical practitioners employed by the Bureau of Prisons

committed malpractice as a matter of law.

Finally, Antonelli has not introduced any facts to establish, either directly or

*To establish a case of negligence in treatment against a medical provider, a plaintiff

must prove (1) the proper standard of care against which the professional's conduct must be

measured; (2) a negligent failure 10 comply with that standard; and (3) that the injury for

which the suit is brought had as one of its proximate causes the negligence of the

professional. Borowski v. Von Solbrig, 60 Il). 2d 418, 423, 328 N.E.2d 301, 304-05

(1975); Saxton v. Toole, 240 Ill. App. 3d 204, 210, 608 N.E.2d 233, 238 (ist Dist. 1992).

The burden is on the plaintiff to prove the cause of action of negligence, not on the

defendant to disprove it. Clingan v. Rakalla, 252 lil. App. 3d 786, 790, 624 N.E.2d 1, 3

(4th Dist. 1993); Burgdorff v. IBM, 74 lll. App. 3d 158, 392 N.E.2d 183 (ist Dist. 1979).

. a . “ . -

-~

_-*

el

"T

indirectly, that Caridine and Magnuson negligently denied him access to medical treatment.

As previously established, Antonelli requested and received medical treatment on multiple

occasions, including a medical examination within hours of his arrival at the MCC.

The defendants are therefore entitled to summary judgment on Count VI as a matter of law.

WHEREFORE, for the foregoing reasons, the defendants’ mouon ior summar_’

judgment is granted with respect to Counts II and VI but denied with respect w Count III.

Dated: December 1, 1995

ENTERED:

‘

David H. Coar

U.S. District Judge

$6 aS

13

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL ANTONELLI,

Plaintiff,

Vv. No. 93 C 4385

OFFICER CARIDINE, et al.,

ee ee ee ee ee ee ee

Defendants.

MEMOR4NDUM OP] NION AND ORDER

JAMES F. HOLDERMAN, District Judje:

Plaintiff Michael «ntonell‘ has filed a ten count pro se

complaint alleging deprivations of his civil rights (Count I),

various violations of his constitutional rights (Counts II - V,

and X), and four common law tort claims (Counts VI - IX), all

arising out of plaintiff’s confinement in 1991 at the

Metropolitan Correctional Center ("MCC").' Defendants have filed

a joint motion to dismiss plaintiff’s complaint. For the reasons

stated below, defendants’ motion to dismiss is granted in part

and denied in part.

BACKGROUND

On the afternoon of August 2, 1991, plaintiff was brought to

the MCC on a parole violator warrant to be detained for a parole

violation hearing. At that time, plaintiff alleges that he was

injured from having been assaulted earlier that day by a U.S.

Marshal at the federal building. Plaintiff states that he was

' In an order dated December 6, 1993, this court granted

defendants’ motion to substitute the United States as a defendant

in plaintiff’s common law tort claims contained in Counts VI - Ix

purguant to the Federal Tort Claims Act. . nig? “tp Rin

+ [> #a%

visibly bruised and battered and had a laceration on the back of

his head which was bleeding. Upon entering the MCC, plaintiff

claims that he hecame extremely ill and repeatedly vomited.

Plaintiff states that he was then put in a ceil and did not

receive medical attention for almost two weeks.

In addition, plaintiff claims that his constitutional rights

were violated when prison employees interfered with some of his

personal mail; seized his legal papers; and denied hic a visit

from his fiance.

ANALYSIS

I. Standard of Review

In ruling on a motion for dismissal, the court must presume

all of the well-pleaded allegations of the complaint to be true.

Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S.Ct. 2490, 2492

n.2 (1977). In addition, the court must view those allegations

Gomez vy. Illinois

State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987).

Dismissal is proper only if it eppears “beyond doubt that the

in the light most favorable to the plaintiff.

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-

46, 78 S. Ct. 99, 102 (1957).

Il. Personal Involvement

To be liable under 42 U.S.C. § 1983, a defendant must have

some measure of personal responsibility for the alleged

constitutional deprivation. , 865 F.2d

827, 847 (7th Cir. 1989). “There is no doctrine of superior’s

443

2

liability in § 1983 actions; instead, the official must actually

have participated in the constitutional wrongdoing." Id.

(citations omitted). “Failure to take corrective action cannot

in and of itself violate § 1983." Soderbeck v. Burnett County,

752 F.2d 285, 293 (7th Cir.), cert. denied, 471 U.S. 1117, 105 S.

Ct. 2360 (1985).

A supervisory official can be liable, however, even if not

directly involved in the constitutional deprivation, if the

official knowingly, willfully or recklessly caused the

deprivation by his action or failure to act. Wilks vy. Young, 897

F.2d 896, 898 (7th Cir. 1990). Supervisors who are merely

negligent, or even grossly negligent, in failing to detect or

prevent subordinates’ misconduct are not liable under § 1983.

Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988).

The supervisor must know about the conduct and facilitate it,

approve of it, condone it, or turn a blind eye to it. Jd,

In this case, plaintiff does not make any allegations in his

complaint to establish either direct or indirect personal

involvement by defendant Calvin Edwards, Regional Director of the

United States Bureau of Prisons, or defendants Page True or Mark

Henry, who held the position of Warden at the MCC, in any of the

alleged constitutional deprivations. Plaintiff’s complaint

contains no allegations from which the court can deduce that

these defendants were aware of plaintiff’s conditions of

confinement or that they had an opportunity to correct the

situation. Plaintiff’s claims against defendants Edwards, True

they

ee RG NANI

Henry are made solely based on their supervisory positions

within the Bureau of Prisons. Without any basis from which to

infer that defendants Edwards, True or Henry were involved with

plaintiff’s care and custody, the court must dismiss plaintiff’s

constitutional claims contained in Counts II - V, and X as to

defendants Edwards, True and Henry.

II. Conspiracy Claim

In Count I plaintiff alleges that the defendants engaged in

a conspiracy to deprive him of his constitutional rights by

threatening, harassing, and assaulting him in violation of 42

U.S.C. § 1985(3).?

Section 1985(3) creates a private cause of action for a

conspiracy to deprive a person of equal protection of the laws or

the right to vote. To state a claim under § 1985(3), a plaintiff

must demonstrate that the conspirators’ action was motivated by

“‘some racial, or perhaps otherwise class-based, invidiously

discriminatory animus.’" Bray v. Ale andria Women’s Health

? Section 1985(3) provides in relevant part as follows:

If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the premises

of another, for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws; or for the purpose of preventing

or hindering the constituted authorities of any State or

Territory from giving or securing to all persons within such

State or Territory the equal protection of the laws; or if

two or more persons conspire to prevent by force,

intimidation, or threat, any citizen who is lawfully

entitled to vote, from giving his support or advocacy in a

legal manner...the party so injured or deprived may have an

action for the recovery of damages occasioned by such injury

or deprivation, against one or more of the conspirators.

42 U.S.C. § 1985(3). _ eee ees hee

~ ;

. 3 + =

.

ame general conspiratorial objective or possessed the same

motives." Jd. (citing Hoffman-LaRoche, Inc. v. Greenberg, 447

F.2d 872, 875 (7th Cir. 1971)). Mere conclusory allegations that

the defendants conspired to violate plaintiff’s rights are

insufficient.

In this case, plaintiff’s complaint does not set forth any

facts indicating a previous agreement between the defendants to

harass or threaten plaintiff. Plaintiff’s complaint contains no

allegations from which this court can infer that the defendants

engaged in a conspiracy to deprive plaintiff of his

constitutional rights. Therefore, the court finds that plaintiff

has failed to state a cause of action pursuant to 42 U.S.C. §

1985(3) for which this court could grant relief.

II. Constitutional Claims

A. Inadequate Medica] Treatment Claim

Plaintiff alleges that on the afternoon of August 2, 1991,

he was brought to the MCC on a parole violator warrant to be

detained for a parole violation hearing. At that time, plaintiff

Claims that he was ill and injured due to having been allegedly

assaulted earlier that day by a U.S. Marshal at the federal

building. Plaintiff states that he was visibly bruised and

battered and had a laceration on the back of his head which was

bleeding. Upon entering the MCC, plaintiff claims that he became

nauseous and repeatedly vomited. Plaintiff contends that despite

his visible sickness and injuries, he was put into a cell and did

not receive medical attention for almost two weeks.

' #6

To establish deliberate indifference plaintiff must show

that the defendants actually knew of the impending harm to

plaintiff and refused to take steps to prevent it from occurring.

Campbell] _v. Greer, 831 F.2d 700, 702 (7th Cir. 1987); Walton v.

Fairman, 836 F. Supp. 511, 515 (N.D. Ill. 1993). Plaintiff’s

complaint contains no allegations indicating that any defendants,

asiie from John Magnuson and Officer Caridine, knew of

plaintiff's head injury and resulting illness and refused to take

steps to treat plaintiff. Therefore, the court dismisses Count

II o plaintiff’s complaint as to defendants Henry, Edwards,

True, Quinlan, and Harris.‘

B. Seizure of Legal Papers

In Count III plaintiff claims that defendant Caridine

confiscated and seized plaintiff’s legal papers in violation of

plaintiff’s constitutional rights.

1. Denial of Access to the Courts

Caridine was not served. The Seventh Circuit has held that the

failure of the Marshal to effect service for an incarcerated

plaintiff, coupled with the Marshal’s failure to follow up with

personal service, automatically constitutes “good cause" for Rule

4(j) purposes. Therefore, the defendants should be prepared to

discuss at the next status hearing whether they will accept

service on behalf of defendant Caridine or provide his last known

address.

* In Count VI plaintiff alleges that defendants negligently

denied plaintiff medical treatment. Because the court finds that

plaintiff has alleged sufficient facts to establish that

defendants Caridine and Magnuson acted with deliberate

indifference to plaintiff’s medical needs, plaintiff has clearly

alleged a valid claim for negligent denial of medical attention

by these same defendants. Therefore, the court grants

defendants’ motion to dismiss Count VI only as to defendants

Henry, Edwards, True, Quinlan, a Harris. -

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"It is well-established that inmates have a fundamental

constitutional right of access to the courts." Alston v.

DeBruyn, 13 F.3d 1036, 1040 (7th Cir. 1994) (citing Bounds vy.

Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977)). “To

prove a violation of the ricvht of access to the courts, an inmate

must show (1) the failure of prison officials ‘to assist in the

preparation and filing of meaningful legal papers by providing

prisoners with adequate law libraries or adequate assistance from

persons trained in the lav,’ Bounds, 430 U.S. at 828, 97 5S. ct.

at 1498, and (2) ‘some quantum of detriment caused by the

challenged conduct of state officials resulting in the

interruption and/or delay of the plaintiff’s pending or

contemplated litigation.’" Alston, 13 F.3d at 1040-41 (quoting

Shango v. Jurich, 965 F.2d 289, 291 (7th Cir. 1992)).

In this case, plaintiff has failed to allege that defendant

Caridine’s alleged interference with plaintiff’s legal papers

resulted in the delay or interruption of any pending or

contemplated litigation in which plaintiff was involved. See

Jenkins v. Lane, 977 F.2d 266, 269 (7th Cir. 1992)

(constitutional claim dismissed for failure to show that prison’s

policy otf banning prisoners who were confined in protective

custody from library prejudiced prisoner by causing a delay or

interruption of pending litigation). Therefore, the court finds

that plaintiff has failed to allege a violation of his right of

access to the court based on the alleged seizure of his legal

papers.

Lae |

@. Deprivation of Property Without Due Process

Although plaintiff has not sufficiently alleged a claim of

the unconstitutional denial of access to the courts, the court

finds that plaintiff has stated a valid due process claim in

Count III based on the alleged seizure of his legal papers. It

is beyond dispute that plaintiff has a protected property

interest in the legal papers ailegedly seized by defendant

Caridine, and that the confiscation of stebbeienrs property

without "notice and an opportunity for hearing appropriate to the

mature of the case" would violate plaintiff’s cue process rights.

Caldwell v. Miller, 790 F.2d 589, 608 ‘7th Cir. 1986) (citations

omitted). It is also beyond dispute, however, that the rights of

an inmate “may be diminished by the needs and exigencies of the

institutional environment." Wolff v. McDonnell, 418 U.s. 539,

555, 94 S. Ct. 2963, 2974 (1974). “[(T)he due process rights of a

prisoner are not absolute, but must be accommodated to the

legitimate security needs of a corrections institution."

Caldwell, 790 F.2d at 609.

In this case, plaintiff’s complaint does not provide the

court with factual details regarding the alleged seizure of his

legal papers. Plaintiff simply claims that the confiscation and

seizure of his legal papers by defendant Caridine violated

plaintiff’s constitutional rights. Therefore, the court is

unable to determine at this Stage of the case whether defendant

Caridine’s alleged seizure was reasonably related to a legitimate

security consideration under the circumstances. However reading

’

the complaint in the light most favorable to the plaintiff, as

this court is required to do on a motion to dismiss, the court

holds that plaintiff has adequately stated a due process claim

against defendant Caridine.

C. Correspondence Claim

In Count IV plaintiff claims that his constitutional rights

were violated when prison employees interfered with plaintiff’s

tnounine and outgoing personal mail. Plaintiff alleges that

si:veral letters to and from his fiance were intercepted by the

staff at the MCC.

A prison inmate has a constitutional right to be free from

interference with his “privileged” mail, including communications

from an inmate’s attorney. See Wolff v. McDonnell, 418 U.S. 539,

577, 94 S. Ct. 2963, 2985 (1974) (mail sent by an attorney to an

inmate was privileged and could not be read by prison officials

outside of an inmate’s presence). “In general, privileged mail

is defined as mail which is either sent to or received from

attorneys or specified governmental and judicial officers. Non-

privileged mail is, accordingly, comprised of all mail which does

not fall within that definition." Gaines v. Lane, 790 F.2d 1299,

1302 (7th Cir. 1986). It is proper for prison officials to read

non-privileged incoming mail in order to detect threats to jail

security and to inspect for contraband. [JId,. at 1304 (citing

Smith v. Shimp, 562 F.2d 423 (7th Cir. 1977)).

In addition, "‘({Bjecause of their reasonable concern for

prison security and inmates’ diminished expectations of privacy,

11 +t /0

prison officials do not violate the constitution when they read

inmates’ outgoing letters.’” United States v. Whalen, 940 F.2d

1027, 1035 (7th Cir.), cert. denied, 112 S. Ct. 403 (1991)

(quoting United States v. Brown, 878 F.2d 222, 225 (8th Cir.

1989)). Prison officials “are permitted to examine inmates’

outgoing mail to ensure that the mail does not interfere with the

orderly «cunning of the prison, contains no threats, and does not

facilitate criminal esaivinw.* Whalen, 340 F.2d at 1035.

Plaintiff ¢.oes not :llege that prison officials at the MCC

interfered with any privileged mail. Plaintiff only alleges that

several letters to and from his fiance were intercepted by the

staff at the MCC.\ Because none of the incoming mail allegedly

interfered with by prison employees was privileged, the court

finds that plaintiff has failed to state a cognizable

constitutional clain.’

D. Denial of a Visit

Plaintiff alleges in Count V that defendant Harris violated

plaintiff’s constitutional rights by failing to allow plaintiff’s

fiance to visit plaintiff at the MCC. The Supreme Court held in

Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461, 109

S. Ct. 1904, 1909 (1989), however, that the “denial of prison

access to a particular visitor ‘is well within the terms of

> Plaintiff alleges in Count VIII a claim for negligent

transmission of the mails pursuant to the Federal Tort Claims Act

("FTCA"). The Untied States is entitled to immunity under the

FTCA, however, for any claim arising out of the loss,

miscarriage, or negligent transmission of letters or postal

matters. 28 U.S.C. § 2680(b). Therefore, Count VII of -

plaintiff’s complaint must be dismissed.

#

12

confinement ordinarily contemplated by a prison sentence,’ and

therefore is not independently protected by the Due Process

Clause." Id. (quoting Hewitt v Helms, 459 U.S. 460, 468, 103 S.

Ct. 864, 869 (1983)). Therefore, the court dismisses Count V for

failure to state a clain.

CONCTUSION

For the reasons stated above, defendants’ motion to dismiss

is GRANTED IN PART AND DENIED IN PART. Plaintiff’s complaint is

dismissed in its entirety as cto defundants Edwards, True, Henry,

Quinlan and Harris. Counts I and VI remain ais to defendants

Magnuson and Caridine, and Count IIl, remains as to defendant

Caridine. The remaining defendants are ordered to Answer the

respective remaining counts of the Complaint on or before

October 21, 1994. The parties are strongly urged to discuss the

settlement of this case and report on the status thereof on

October 26, 1994 at 10 a.m. Pro se plaintiff Antonelli and

defendants’ counsel are ordered to attend at that time.

ENTER:

i )

* ft dou i pay Renae

JAMES F. HOLDERMAN

United States District Judge

DATED: September 22, 1994

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