Allegation In A Verified Pleading Is The Equivalent Of An Affidavit
OWENS v. HINSLEY (March 18, 2011)
While imprisoned in the Menard Correctional Center, James Owens became unhappy with prison conditions and with the prison's response to his complaints. So he started a hunger strike. He spent 21 days in his cell and four in the infirmary before he ate again. He lost 20 pounds but suffered no medical complications. Within weeks, he began a second hunger strike. This time, he spent 25 days in his cell and almost 3 weeks in the infirmary. He ate again only after the prison began force-feeding him. He lost 30 pounds on his second hunger strike but again suffered no medical complications. He submitted an informal grievance complaining that he should have been moved to the infirmary sooner. His counselor ignored the grievance. The following year, on two separate occasions, Owens was assaulted by cellmates, complained to guards, and was assaulted again before the guards did anything. Owens brought suit pursuant to § 1983. The complaint contained seven separate claims against 15 different defendants. Chief Judge Herndon (S.D. Ill.) dismissed five of the seven claims at screening and granted summary judgment to the defendants on the other two. Owens appeals.
In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court first noted that the complaint violated the rules of civil procedure regarding joinder and should either have been severed into two separate actions or dismissed for improper joinder. However, since improper joinder is not jurisdictional, the Court addressed each claim's merits in turn. His claim that prison officials violated the Constitution when they ignored his grievances is frivolous -- prison grievance procedures are not required by the Constitution. His claim that his First Amendment right to demonstrate was violated when the prison force-fed him is frivolous -- there is no constitutional right to refuse life-saving medical treatment. His claim that the guards failed to protect him from cellmate assaults fails -- no reasonable juror could find that the guards deliberately ignored a substantial risk of serious harm. His claim that the prison was deliberately indifferent when it did not move him from his cell to the infirmary during his hunger strikes fails, although not for the reason relied upon by the district court. His allegation, in his verified response to summary judgment, that he submitted an informal grievance is the equivalent of an affidavit. The court should have considered it. The claim still fails because he failed to exhaust administrative remedies when he did not follow up his informal grievance with a written grievance to a designated prison official. The district court dismissed the other three claims without prejudice because the allegations of misconduct were not linked to a particular defendant. Although an amended complaint may have corrected some of that problem, the Court concluded that the district court did not abuse its discretion in denying leave to amend when Owens failed to comply with local procedure, failed to follow the court's instructions for refiling, and filed claims that had already been dismissed at screening.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select