Moore-Bey v. Cohn

69 F. App'x 784
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 25, 2003
DocketNo. 02-3931
StatusPublished
Cited by1 cases

This text of 69 F. App'x 784 (Moore-Bey v. Cohn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore-Bey v. Cohn, 69 F. App'x 784 (7th Cir. 2003).

Opinion

ORDER

Indiana inmate William Moore-Bey brought suit under 42 U.S.C. § 1983 alleging that seven named prison officials thwarted his litigation of a postconviction petition in violation of his First Amendment right of access to the courts, forcibly cut his hair in violation of his First [786]*786Amendment right to freely exercise his religion, and refused him cleaning supplies for his cell in violation of his Eighth Amendment right to be free from cruel and unusual punishment. The district court granted leave to proceed in forma pauperis and ordered the United States Marshals Service to serve four of the defendants; later the court dismissed the case in its entirety after granting summary judgment in favor of those defendants. On appeal Moore-Bey argues that his aceess-to-the-courts claim should have survived summary judgment as to two of the served defendants; he also contends that the district court erred in failing to direct service on the other three defendants. We affirm the district court’s judgment.

In October 2000, Moore-Bey was transferred from another prison to the Reception Diagnostic Center (“RDC”), an intake facility where Moore-Bey remained for two weeks before reaching his new home, the Pendleton Correctional Facility. According to his complaint, Moore-Bey submitted to a haircut when his protests on religious grounds were met with threats of discipline, and was never given supplies to clean his cell. In addition, Moore-Bey alleged in his complaint that because of the defendants’ conduct he missed a deadline to petition the Indiana supreme court to accept a transfer of his postconviction action after an adverse ruling in the state appellate court.

In June 2001, the district court ordered the Marshals Service to serve Christine Stogsdill, a clerical employee assigned to the law library at Moore-Bey’s former prison; Thomas Hanlon, an assistant superintendent at the RDC; and two other defendants. The court also scheduled a pretrial conference for July and directed Moore-Bey to be ready “to discuss with specificity his claims, as well as, the conduct of the defendants named in the amended complaint who have not been served.” That conference apparently was cancelled, but as far as the record shows Moore-Bey never raised a concern afterward about the lack of service. Eventually the served defendants moved for summary judgment, and after waiting eight months for Moore-Bey’s response, the district court granted the motion and dismissed the case with prejudice.

As to the served defendants, Moore-Bey insists that disputed issues of fact should have precluded summary judgment on his claim that Stogsdill and Hanlon denied him access to the courts. Moore-Bey has waived his remaining claims against these two defendants, and all of his claims against the other served defendants, by failing to argue them in his opening brief. Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir.2002). We review the grant of summary judgment de novo and view the facts in the light most favorable to Moore-Bey as the nonmoving party. Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir.2003).

The evidence here is straightforward. Before Moore-Bey was moved to the RDC, Stogsdill helped him enlist Kenneth Bean, another inmate, to assist Moore-Bey in litigating a postconviction action in state court. That action was pending in the Indiana appellate court when Moore-Bey reached the RDC, and on November 20, 2000, the court issued a ruling affirming the denial of his postconviction petition. Moore-Bey received the order and forwarded a copy to Stogsdill with instructions to pass it along to inmate Bean, whom Moore-Bey expected to prepare a petition to transfer the case to the Indiana supreme court. But prison regulations prohibit inmates from corresponding with each other by mail absent permission from their superintendents, so Stogsdill gathered Moore-Bey’s materials from Bean [787]*787and sent them to Moore-Bey with a reminder about the prohibition on communicating by mail. The evidence is undisputed that Stogsdill returned materials to Moore-Bey before the 30-day deadline for filing the transfer petition and supporting argument had expired. See Ind. R.App. P. 57(c), (g). Indeed, Moore-Bey admitted in a submission to the Indiana appellate court that by December 7 he had his “legal materials” in his possession, but in responding to the summary judgment motion he averred that it was actually months later before the materials sent by Stogsdill were received. And while he was waiting at the RDC, Moore-Bey complained orally and in writing about a lack of access to unspecified legal materials, to the RDC library, and to the assistance of a legal clerk. Some of those complaints, says Moore-Bey, were made to assistant superintendent Hanlon, who as a supervisor could have intervened to help. Ultimately, Moore-Bey let the deadline for filing a petition to transfer lapse after his two requests for an extension of time were denied.

This scenario, however, does not support a claim for relief. Inmates are entitled to a reasonably adequate opportunity to present their claims in court, Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), but to prove that this right was infringed an inmate must demonstrate that he suffered actual injury, Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); May v. Sheahan, 226 F.3d 876, 883 (7th Cir.2000). We need not dwell, then, on whether Stogsdill or Hanlon or anyone else did anything to prevent Moore-Bey from filing his petition to transfer, see Christopher v. Harbury, 536 U.S. 403, 413, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (observing that acts interfering with access to court might include denying library access or reading assistance to an illiterate prisoner); Harrell v. Cook, 169 F.3d 428, 432 (7th Cir.1999) (holding that destruction of evidence could impede right to pursue legal recourse), nor do we need to decide whether Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), might bar his claim altogether, see Hoard v. Reddy, 175 F.3d 531 (7th Cir.1999); Nance v. Vieregge, 147 F.3d 589 (7th Cir. 1998). What Moore-Bey failed to do is articulate any basis to conclude, or point to any evidence to suggest, that missing the 30-day filing deadline caused him concrete harm. A missed opportunity to file his petition is all that Moore-Bey contends was lost because of the defendants’ conduct, but transfer is a discretionary remedy, see Ind. R.App. P. 4(a)(2), that is not available just for the asking.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
69 F. App'x 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-bey-v-cohn-ca7-2003.