David Delgado v. Salvador Godinez , 683 F. App'x 528 ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 13, 2017 *
Decided April 27, 2017
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 16-1329
DAVID DELGADO, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 1:15-cv-01180
SALVADOR GODINEZ, et al., Sara Darrow,
Defendants-Appellees. Judge.
ORDER
Illinois prisoner David Delgado asserts in this suit under 42 U.S.C. § 1983 that staff
at Pontiac Correctional Center violated his First Amendment right of access to the
courts and his right to equal protection of the laws. The district court dismissed the suit
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. CIV. P. 34(a)(2)(C).
No. 16-1329 Page 2
at screening for failure to state a claim, see 28 U.S.C. § 1915A, and Delgado appeals. We
affirm.
Because the lawsuit was dismissed at screening, we accept Delgado’s factual
allegations as true for present purposes. See Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). Delgado’s complaints stem from prison staff’s interactions with a lawyer
representing him in what he characterizes as a “criminal case.” Delgado does not
elaborate, but in the district court he submitted an e-mail from the lawyer referring to
counsel’s preparation of a petition for collateral relief under the Illinois Post-Conviction
Hearing Act, 725 ILCS 5/122. Delgado met with the attorney in May 2013 in a “contact”
conference room (i.e., one without physical barriers where they could pass documents
freely). Their meeting began at 9:00 a.m. and continued until 2:30 p.m., when three
guards entered without knocking and ended it. Two months later the lawyer returned
to Pontiac, but this time he was compelled to meet with Delgado in a booth having a
glass partition separating the two men. Communication required using a device in the
glass partition that allowed staff to monitor his conversations. Indeed, a posted sign
warned that “all conversations are recorded.”
In formal grievances and in letters to the administrative staff, Delgado complained
that the abrupt end of his contact visit with the lawyer and the later substitution of the
booth violated his constitutional rights. Delgado’s attorney likewise informed prison
administrators that he needed to meet with his client in a contact conference room to
facilitate review of documents. A lawyer for the Department of Corrections responded
that the glass-partitioned booths allow for confidential communications and added that
guards are available to pass documents between attorney and client. The attorney
passed along to Delgado the message that Pontiac’s policy requires lawyers to use the
booths when meeting with inmates unless there is a “good reason” for a contact visit. (A
copy of this written communication is in the record.) The lawyer admitted that they did
not have such a reason. Delgado also was told by a staff member that if a contact
conference room is requested, at least two days’ notice must be given so that a guard
can be assigned to sit outside the room while the lawyer meets with the inmate.
Delgado’s initial complaint characterized the interruption of his first meeting with
counsel and the later denial of use of a contact conference room as violations of the
First, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, as well as the
Geneva Conventions. At screening the district court concluded that, at most, Delgado
might have a claim that the three guards who entered the conference room denied him
access to the courts in violation of the First Amendment. But to pursue that claim, the
court told Delgado, he would have to identify a resulting detriment to ongoing
No. 16-1329 Page 3
litigation. The court thus dismissed the complaint with leave to amend. Delgado offered
two amended complaints, but neither one cured the critical defect, and so the district
court dismissed the lawsuit with prejudice.
On appeal Delgado stresses two arguments: that both incidents denied him
meaningful access to the courts and that his right to equal protection was violated
because other inmates were allowed contact visits but he was not. We have recognized
that inhibiting private communication with an attorney may constitute a denial of
meaningful access to the courts. Guajardo-Palma v. Martinson, 622 F.3d 801, 802 (7th Cir.
2010); Dreher v. Sielaff, 636 F.2d 1141, 1143 (7th Cir. 1980). But to pursue such a claim,
Delgado must identify an underlying nonfrivolous claim that the prison officials’
actions impeded. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v. Casey, 518
U.S. 343, 351–53 (1996). Delgado has hinted that he and counsel were working on a
postconviction petition, but he has never identified that matter or suggested that the
two incidents frustrated his ability to pursue it. Thus the district court correctly
concluded that Delgado fails to state a First Amendment claim.
Delgado’s equal protection claim was equally flawed. The court understood
Delgado to allege that Pontiac has adopted a presumption against contact visits with
lawyers, and thus reasoned that Delgado could not plausibly allege that he was
“arbitrarily singled out for unfair treatment.” Delgado believes that this misconstrued
his contention, which was that even though Illinois prisons allow contact visits with
attorneys, he was denied a contact visit because Pontiac was retaliating against his
attorney and trying to learn whether Delgado was planning to file suit against its staff.
There are several problems with this theory. First, Delgado has no right to vindicate his
attorney’s rights. See Allen v. Wright, 468 U.S. 737, 751 (1984) (noting “general
prohibition on a litigant’s raising another person’s legal rights”); United States v. Holm,
326 F.3d 872, 875–76 (7th Cir. 2003); Massey v. Helman, 196 F.3d 727, 739–42 (7th
Cir. 1999). Second, Delgado’s own pleadings show that he was not treated differently
from other inmates. We may look to the content of documents that a plaintiff attaches to
his complaint and relies upon to form the basis of a claim. Carroll v. Yates, 362 F.3d 984,
986 (7th Cir. 2004); Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753–54
(7th Cir. 2002). Delgado attached communications from his attorney along with emails
between the lawyer and DOC counsel, presumably to show that his attorney faced
retaliation. Yet those attachments describe Pontiac’s policy of restricting contact visits
with lawyers in favor of using the booths, and Delgado never disputes that such a
policy exists. His allegation that some inmates are allowed contact visits is consistent
with Pontiac’s policy of curtailing use of the conference rooms without a “good reason”
No. 16-1329 Page 4
to make an exception. And it was Delgado’s lawyer who opined that Delgado did not
have a good reason.
Delgado nonetheless urges that two other inmates, whose affidavits are included in
his appellate brief, support his contention that he was treated differently because they
were allowed contact visits with their attorneys. When reviewing a dismissal for failure
to state a claim, we may consider new factual allegations made in an appellate brief.
See Heng v. Heavner, Beyers & Mihlar, LLC, 849 F.3d 348, 354 (7th Cir. 2017); Geinosky v.
City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). But these affidavits change nothing
because the other inmates are silent about the processes that their attorneys used to
obtain a contact visit.
We have reviewed Delgado’s remaining contentions and only one merits comment.
Delgado asserts that the district court incorrectly stated in the Merit Review Order that
there is no constitutional right to a grievance process. Delgado appears to be confusing
the right to grieve with the right to a grievance process. He has a First Amendment right
to “petition the government for a redress of grievances,” Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir. 1996), but he does not have a substantive due process right to an
effective prison grievance process, see Grieveson v. Anderson, 538 F.3d 763, 772 (7th Cir.
2008). If as a practical matter the grievance process is so ineffective as to be unavailable
to the prisoner, the only consequence is that he is relieved of the duty to exhaust.
Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016). Nothing suggests that Pontiac’s
procedures were so deficient, however, and no one has argued that Delgado failed to
exhaust. He has therefore had full access to the courts, which satisfies his procedural
due process rights. See Grieveson, 538 F.3d at 772 n.3.
The district court informed Delgado that he incurred a strike, see 28 U.S.C.
§ 1915(g), for filing a lawsuit that fails to state a claim. This appeal counts as a second
strike.
AFFIRMED.