Eugene Devbrow v. Steven Gallegos

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1627
EUGENE DEVBROW,
Plaintiff-Appellant,
v.
STEVEN GALLEGOS and JASON SMILEY,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:10-cv-146 — James T. Moody, Judge.
SUBMITTED OCTOBER 25, 2013* — DECIDED NOVEMBER 1, 2013
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Eugene Devbrow, an Indiana
prisoner, challenges the grant of summary judgment against
him in this action under 42 U.S.C. § 1983 asserting that prison
officials denied him access to the courts by confiscating and
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2)(C).
2 No. 13-1627
then destroying his legal papers in retaliation for a prior
lawsuit he filed. Because Devbrow failed to show that prison
officials actually destroyed his legal documents or took his
papers for retaliatory reasons, we affirm.
According to Devbrow’s verified complaint, two prison
o f f i c i a l s a t I n d i a n a ’ s We s t v il l e C o r r e c t i o n a l
Facility—defendants Steven Gallegos and Jason
Smiley—confiscated and destroyed his legal materials after he
told Gallegos that unsanitary conditions at the prison could be
rectified through a lawsuit. Gallegos promptly ordered
Devbrow to his dormitory and grilled him about his pending
litigation. Devbrow acknowledged he had lawsuits pending,
at which point Smiley ordered a dorm officer—identified by
Devbrow only as “Stolls”—to remove all of Devbrow’s legal
materials and review them for anything pertinent to any
litigation that was ongoing. Over Devbrow’s protests, Gallegos
then told another officer to inventory all of the materials.
Devbrow later stepped away from the dorm and, upon his
return, discovered that his legal materials were
missing—confiscated, he believed, by Stolls.
Devbrow describes these confiscated materials as irreplace-
able documents that were needed by his attorney to respond to
a summary judgment motion in a pending civil rights suit in
the Southern District of Indiana. In that suit Devbrow had
charged doctors and a nurse from his former prison with
deliberate indifference to a serious medical need (cancer),
Devbrow v. Kalu, 705 F.3d 765, 766–67 (7th Cir. 2013), and
Devbrow insisted that the materials confiscated by Gallegos,
Smiley, and Stolls were his only copies of medical records from
that prison.
No. 13-1627 3
Defendants Gallegos and Smiley eventually sought sum-
mary judgment on grounds that they did not destroy
Devbrow’s legal materials and that their confiscation of excess
materials was not in retaliation for his prior litigation. The two
officers submitted their own testimony asserting that Devbrow
had created a fire hazard by stacking excess property by his
bed, that they allowed him to keep some legal materials by his
bed, that Devbrow stored the rest of them, and that they were
unaware of Devbrow’s pending litigation.
The district court construed Devbrow’s submissions as
raising both access-to-courts and retaliation claims, and
granted summary judgment for the two officers. Plaintiff
Devbrow, the court determined, failed to provide any admissi-
ble evidence to dispute the sworn statements of Gallegos and
Smiley denying personal involvement in any destruction of his
property. But even if the officers were personally involved, the
court added, they would still be entitled to summary judgment
because Devbrow did not suffer any actual injury from the
destruction and/or confiscation of those documents: Devbrow’s
deliberate indifference suit had been terminated not on the
merits, but on grounds of untimeliness (a finding we later
reversed; litigation is ongoing in the district court, see Devbrow,
705 F.3d at 770). As for Devbrow’s retaliation claim, the court
found that Devbrow had not submitted any admissible
evidence to discredit the officers’ explanation that they had
removed his property from the dorm room because it was a
fire hazard. The court later denied Devbrow’s motion to
reconsider, which the court construed as a motion under
Federal Rule of Civil Procedure 59(e), because he failed to
4 No. 13-1627
show a manifest error of law or fact in its rulings. Devbrow has
appealed.
Gallegos and Smiley argue as a threshold matter that we
lack jurisdiction to hear this appeal because: (1) the notice of
appeal was filed seven days beyond the 28 days allowed after
entry of judgment; and (2) Devbrow’s certificate of service
accompanying that motion did not comply with Federal Rule
of Appellate Procedure 4(c) because it was unsigned and
undated, and failed to state that he intended to use the prison’s
internal mailing system. We asked Devbrow to file a notarized
statement specifying the date the notice of appeal was depos-
ited in the prison’s internal mail system and stating whether
first-class postage was prepaid. See Fed. R. App. P. 4(c).
Devbrow’s notarized response asserted that he placed his
motion to reconsider in the prison mail system, postage
prepaid, on January 24, 2013. That made his motion timely
under Rule 59 and tolled his time to file a notice of appeal until
the district court decided his motion to reconsider. See Fed. R.
App. P. 4(a)(4)(A)(iv). The appeal was timely, and we have
jurisdiction.
On appeal Devbrow first argues that the district court
wrongly struck an exhibit he had submitted because it was not
properly authenticated. In opposition to the officers’ motion for
summary judgment, Devbrow had submitted a document that
appeared to be an email sent from Gallegos to the law librarian
supervisor stating that Devbrow’s “stacks of legal personal
property” in his “bed area” violated the prison policy and
needed to be inventoried and moved to the “property room.”
Devbrow believes that this email confirmed retaliatory intent
and the destruction of his property. In his view, Federal Rule
No. 13-1627 5
of Evidence 901 requires him to show only that the evidence
was what he claimed it was (i.e., an email from Gallegos), and
he says that he received this document directly from the
prison.
The document was properly struck because Devbrow failed
to authenticate it. While circumstantial evidence—such as an
email’s context, email address, or previous correspondence
between the parties—may help to authenticate an email,
see United States v. Siddiqui, 235 F.3d 1318, 1322–23 (11th Cir.
2000), the most direct method of authentication is a statement
from the author or an individual who saw the author compose
and send the email. See United States v. Fluker, 698 F.3d 988, 999
(7th Cir. 2012). But Devbrow did not show that either he or
anyone else saw Gallegos actually compose or transmit the
email, nor did he present any circumstantial evidence like that
in Siddiqui or Fluker to suggest as much.
On the merits, Devbrow argues that the district court erred
when it determined that he submitted no admissible evidence
of destruction of legal materials. He points to his verified
complaint, in which he generally asserts that Gallegos and
Smiley confiscated and destroyed his legal materials. To be
clear, as a general rule the officers had a right to confiscate his
legal materials, leaving him a permissible amount in his cell
consistent with safety considerations and prison regulations,
but destruction would have been improper if it occurred, and
if these defendants caused it.
The district court may have overlooked the fact that
Devbrow’s complaint was verified. A verified complaint is the
equivalent of an affidavit for summary judgment purposes. See
6 No. 13-1627
28 U.S.C. § 1746; Ford v. Wilson, 90 F.3d 245, 246–47
(7th Cir. 1996); Hart v. Hairston, 343 F.3d 762, 765 (5th Cir.
2003); Roberson v. Hayti Police Dep’t, 241 F.3d 992, 994–95 (8th
Cir. 2001). To prevail in his access-to-courts claim, Devbrow
needed to submit evidence showing that he suffered actual
injury—i.e., that prison officials interfered with his legal
materials—and that the interference actually prejudiced him in
his pending litigation. See Lewis v. Casey, 518 U.S. 343, 348
(1996); Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004);
Johnson v. Barczak, 338 F.3d 771, 772 (7th Cir. 2003). But
Devbrow offers nothing to show his legal materials were
actually destroyed by anyone, let alone by these defendants,
except his own conclusory assertions in his verified complaint.
He has not asserted, for example, that he tried to exchange
some of the material left in his cell for some of the confiscated
material, and his request was refused because the confiscated
materials were not available. Nor has he identified any basis
for personal knowledge for a claim that these defendants were
responsible for any such destruction.
Devbrow was not injured when officials confiscated his
documents because temporary confiscation of documents does
not show, without more, “a constitutionally significant
deprivation of meaningful access to the courts.” Hossman v.
Spradlin, 812 F.2d 1019, 1022 (7th Cir. 1987); see Monroe v. Beard,
536 F.3d 198, 206 (3d Cir. 2008); Sowell v. Vose, 941 F.2d 32,
34–35 (1st Cir. 1991). Devbrow also cannot satisfy the require-
ments of an access-to-courts claim because he suffered no
actual injury, so a grant of summary judgment on this claim for
Gallegos and Smiley was proper. See Christopher v. Harbury,
No. 13-1627 7
536 U.S. 403, 413–15 (2002); Lewis, 518 U.S. at 348; Tarpley v.
Allen County, 312 F.3d 895, 899 (7th Cir. 2002).
Regarding his retaliation claim, Devbrow argues that the
district court erred when it overlooked his evidence that the
officers failed to comply with regular prison storage proce-
dures for legal materials—procedures that require officials to
store an inmate’s excess legal materials securely in property
storage boxes in the law library. Because his property was
destroyed, he says, Devbrow speculates that officers retaliated
against him for filing lawsuits and failed to comply with their
own storage procedures.
As noted, Devbrow has not come forward with evidence
that any materials were actually destroyed. Also, the district
court properly found that Devbrow failed to offer evidence
that would allow a finding that the officers confiscated
Devbrow’s legal materials to retaliate against him for suing
prison officials. Retaliation requires a showing that the plain-
tiff’s conduct was a motivating factor in defendants’ conduct.
See Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010);
Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009). But the
evidence here indicates only that Gallegos and Smiley removed
Devbrow’s excessive legal materials to eliminate a fire hazard
and to make it easier for officials to conduct searches and
inventories of offenders’ property during prison searches, not
to retaliate against him. Even though Devbrow’s verified
complaint alleges retaliation, his speculation regarding the
officers’ motive cannot overcome the contrary evidence that
Gallegos and Smiley’s actions were benign. See Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (speculation
concerning retaliatory motives cannot create a genuine issue of
8 No. 13-1627
material fact); Borcky v. Maytag Corp., 248 F.3d 691, 695 (7th Cir.
2001).
AFFIRMED.