James Owens v. Charles Hinsley

After examining the briefs and the record, we have å
concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3618
JAMES OWENS,
Plaintiff-Appellant,
v.
CHARLES HINSLEY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06-CV-380-DRH—David R. Herndon, Chief Judge.
SUBMITTED NOVEMBER 30, 2010 —DECIDED MARCH 18, 2011 å
Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. James Owens, an Illinois prisoner,
was housed at the Menard Correctional Center when

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2 No. 09-3618
he filed this action under 42 U.S.C. § 1983. The place of
confinement is all that connects his hodgepodge of allega-
tions, which the district court organized into seven
claims (some with subparts) against the 15 named defen-
dants. The court dismissed five of those claims at screen-
ing, see 28 U.S.C. § 1915A, and granted summary judg-
ment for the defendants on the other two. Finding no
merit in any of Owens’s arguments on appeal, we affirm.
The number of claims and defendants reflected
Owens’s failure to observe the requirements of Federal
Rule of Civil Procedure 20(a)(2) with respect to joinder
of parties. We emphasized in George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007), that unrelated claims against different
defendants belong in separate lawsuits, not only “to
prevent the sort of morass” produced by multi-claim,
multi-defendant suits like this one, but also to ensure
that prisoners pay all fees required under the Prison
Litigation Reform Act, see 28 U.S.C. § 1915(b), (g). Com-
plaints like this one from Owens should be rejected,
George, 507 F.3d at 607, either by severing the action into
separate lawsuits or by dismissing improperly joined
defendants, see FED. R. CIV. P. 21; DirectTV, Inc. v. Leto, 467
F.3d 842, 844-45 (3d Cir. 2006); Elmore v. Henderson, 227
F.3d 1009, 1012 (7th Cir. 2000); Michaels Bldg. Co. v.
Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988). This
is not, however, a jurisdictional flaw, and so we pro-
ceed to analyze Owens’s allegations.
The evidence before the district court at summary
judgment can be summarized as follows. Owens began
a hunger strike in April 2004 to protest what he viewed

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No. 09-3618 3
as indifference to his grievances about conditions at
Menard. He publicized his strike by communicating
with state officials and prison employees. After 21 days
Owens went to the infirmary, where he remained for
four days. He then voluntarily ended his hunger strike
after being assured that his grievances would be ad-
dressed. Owens, who is 5’ 4” and averages 195 pounds,
lost about 20 pounds during the hunger strike but
regained all of that weight. There is no evidence that
he suffered medical complications.
Believing that his grievances were still being ignored,
Owens began a second hunger strike in June 2004. After
25 days prison officials moved him from his cell to the
infirmary, where for almost three more weeks he
refused to eat. At that point administrators obtained an
order from a state court allowing them to force-feed
Owens, who ended the hunger strike on August 5 after
the first use of a feeding tube. This time he had lost over
30 pounds, but again there is no evidence of medical
complications. On August 8 he submitted a grievance to
his counselor complaining that during the two hunger
strikes he was left in his cell without medical moni-
toring for a total of 49 days. Owens maintained that he
should have been housed in the infirmary all that time.
His counselor did not respond.
In January 2005, Owens was placed in disciplinary
segregation and assigned to a cell with inmate Gordon.
For a month the two got along, but then without warning
or explanation Gordon hit Owens in the mouth, splitting
his lip. Gordon also threatened to hit him again. Owens

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4 No. 09-3618
reported the punch to the guards on duty—defendants
Anderson and Niepert—but at summary judgment
he never said whether he also disclosed Gordon’s threat.
The two guards remained silent when Owens asked to
be released from his cell. Later that afternoon, when a
different guard was in view, Gordon swung again. Owens
evaded the punches, and the guard quickly intervened.
Owens was taken to the infirmary and given a salt-
water rinse to treat the small lacerations left in his
mouth by Gordon’s earlier punch. (Owens says in his
complaint and appellate brief that he was left with a
scar on his lip, but he submitted no admissible evidence
to substantiate this allegation.)
Owens next was housed with inmate Autin. For a
month they coexisted peacefully, but Autin ran out of
drugs to control his mental illness and cautioned Owens
to move elsewhere because he might lose control. Owens
told no one about this warning. On Autin’s fourth day
without medication, he swung at Owens but landed
no punches. Owens told a guard—defendant Smith—
about the incident, and Autin chimed in that he would
go after Owens again. Owens asked to be moved, but
Smith said he could not do anything that day. Hours
later Owens was conversing with another guard about
moving when Autin rushed from behind and shoved
him into the bars. The guard took Owens to the infirmary
with a bump on his forehead and a small abrasion on
one elbow.
These events underlie four of the claims in Owens’s
complaint. In one of these claims he contends that unspeci-

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No. 09-3618 5
fied officials violated the Constitution by ignoring his
many and varied grievances; in another he insists that
his “right to peaceful demonstration” was infringed
when his second hunger strike was forcibly ended. At
screening the district court dismissed both of these
claims as frivolous, and we concur with this assess-
ment. Prison grievance procedures are not mandated by
the First Amendment and do not by their very existence
create interests protected by the Due Process Clause, and
so the alleged mishandling of Owens’s grievances by
persons who otherwise did not cause or participate in
the underlying conduct states no claim. See George,
507 F.3d at 609; Grieveson v. Anderson, 538 F.3d 763, 772 &
n.3 (7th Cir. 2008); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996). And as we said in Freeman v. Berge, 441 F.3d
543, 546-47 (7th Cir. 2006), an inmate conducting a
hunger strike does not have a constitutionally protected
right to refuse life-saving medical treatment.
Two other claims proceeded to summary judgment.
Owens contended that he should have been moved to the
infirmary for the duration of both hunger strikes and,
because he was not, that several named defendants had
been deliberately indifferent to the state of his health.
He also asserted that guards Anderson, Niepert, and
Smith violated the Eighth Amendment by failing to
protect him from the second assaults by Gordon and
Autin. The district court concluded that Owens had
failed to exhaust his administrative remedies for the
healthcare claim. See 42 U.S.C. § 1997e(a); Dole v. Chandler,
438 F.3d 804, 809 (7th Cir. 2006). The court rejected
Owens’s failure-to-protect claims for lack of an eviden-

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6 No. 09-3618
tiary showing that could have supported a verdict in his
favor.
The latter ruling is correct. On the evidence presented
at summary judgment, a jury could not reasonably find
that the guards, by declining to move Owens immedi-
ately to another cell, deliberately ignored a substantial
risk that he would suffer serious harm at the hands of
his cellmates. See Farmer v. Brennan, 511 F.3d 825, 834
(1994); Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir.
2008). Gordon’s one surprise punch and Autin’s wild
swings did not give the defendants reason to believe
that Owens faced an imminent and substantial threat to
his safety. The litigants did not submit testimony from
Anderson, Niepert, or Smith, and so the record does not
reveal whether they reported the initial scraps to their
superiors or took other reasonable steps to prevent a
repetition. It does not matter. Even if the three
defendants shrugged off the minor fisticuffs, the
evidence at summary judgment shows only that they
misjudged the rifts between Owens and the cellmates
he had bunked with amicably for a month. Owens
offered no evidence that he told Anderson or Niepert
about Gordon’s threat to strike again, and Smith had
no reason to suspect that Autin, who had not managed
to land a punch, was a serious threat to Owens. Nothing
indicates that the risk either time to Owens was more
than minimal, see Dale v. Poston, 548 F.3d 563, 569 (7th
Cir. 2008), and when another scuffle signaled that
tension remained, prison staff quickly stepped in and
separated the inmates. Summary judgment for the
guards was appropriate.

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No. 09-3618 7
The district court’s ruling on the medical-care claim
requires a closer look. At summary judgment Owens
tendered a copy of his grievance, dated August 8, 2004,
alleging that he was left in his cell without medical atten-
tion during substantial portions of his hunger strikes.
According to Owens, he gave this grievance to his coun-
selor but never received a reply, and so he forwarded
copies to the grievance officer in February 2005 and
to the Administrative Review Board in June 2005.
The district court acknowledged the significance of this
grievance but concluded that, since Owens had not dis-
cussed it in an affidavit or deposition, he lacked admis-
sible evidence that he gave the grievance to prison offi-
cials. In this respect, the court erred. Owens verified
his response in opposition to the defendants’ motion for
summary judgment, and that was enough to make his
allegations admissible. See 28 U.S.C. § 1746. As the
district court noted, Owens’s submission was not
literally an “affidavit” because he did not swear to the
content in the presence of someone authorized to ad-
minister oaths. See Elder-Keep v. Aksamit, 460 F.3d 979, 984
(8th Cir. 2006); Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.
1985); BLACK’S LAW DICTIONARY 66 (9th ed. 2009). Never-
theless, a declaration under § 1746 is equivalent to an
affidavit for purposes of summary judgment. See, e.g.,
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 749 n.5
(11th Cir. 2010); El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.
2008); Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004);
Ford v. Wilson, 90 F.3d 245, 246 (7th Cir. 1996).
Yet even taking Owens at his word, we conclude that
he failed to exhaust. When an informal resolution is not

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8 No. 09-3618
achieved by talking to a counselor, an inmate in Illinois
has 60 days from the date of the underlying incident to
submit a written grievance to the facility’s designated
grievance officer. 20 ILL. ADMIN. CODE § 504.810; Dole,
438 F.3d at 809; Dixon v. Page, 291 F.3d 485, 489 (7th Cir.
2002). Owens ended his second hunger strike three days
before he drafted the August 8 grievance, and so he
had until early October 2004 to give it to the grievance
officer. By his own admission, Owens inexplicably
waited until February 2005. By then it was too late.
In the alternative the defendants argue that a lack of
evidence provided an independent basis for dismissing
this claim. We agree with this point as well. Owens’s
complete deposition was tendered at summary judg-
ment, and his testimony confirms that he lost weight
and became weak while on his hunger strikes but
suffered no medical complications. Prison administrators
have a right and a duty to step in and force an inmate
to take nourishment if a hunger strike has progressed to
the point where continuation risks serious injury or
death. Freeman, 441 F.3d at 546-47. But if weight loss
and temporary discomfort are the only consequences of
refusing to eat, then the inmate’s choice to go on a
hunger strike raises no Eighth Amendment concern.
See id. at 547; Rodriguez v. Briley, 403 F.3d 952, 953 (7th
Cir. 2005). From all that we can see, Owens’s claim is
baseless. Either this ground, on our de novo review, or
his failure to exhaust leads to the same conclusion: dis-
missal was required.
That leaves the other three claims dismissed at
screening, in which Owens principally alleges that he

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No. 09-3618 9
suffered retaliation for filing grievances and was denied
medical and dental care. At screening the district court
signaled that it would have allowed these claims to
proceed except that Owens had not linked his allega-
tions of unconstitutional conduct to identifiable de-
fendants (or, in a few instances, had named only defen-
dants who could not personally have been involved in
the alleged violations). See Collins v. Kibort, 143 F.3d 331,
334 (7th Cir. 1998) (“A plaintiff cannot state a claim
against a defendant by including the defendant’s name
in the caption.”). These claims were dismissed without
prejudice. Owens does not argue that the court’s basis
for dismissal was erroneous, but instead contends that
his proposed amended complaint, which does identify
specific defendants, should have been allowed.
Owens filed his amended complaint in March 2007,
eight months after he filed suit and three months after
the district court had screened the original complaint.
The 246-paragraph document adds 21 pages and 29
defendants to the original complaint, and many of its
allegations date back several years, some as far as 2001. A
magistrate judge struck the new complaint. See FED. R. CIV.
P. 72(a); S.D. ILL. L. R. 72.1(a)(1). The court was uncertain
whether the document had arrived in the clerk’s
office before a joint answer filed by several defendants,
see FED. R. CIV. P. 15(a), but since Owens had not
complied with local procedure for amending a com-
plaint, the court struck the proposed pleading, see S.D.
ILL. L. R. 15.1. The court’s order offered corrective in-
structions in the event that Owens wanted to try again,
but when he did the following month he apparently

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10 No. 09-3618
resubmitted the same complaint. This time the magistrate
judge denied leave to amend because Owens had
realleged the two claims that were dismissed with preju-
dice at screening.
We review a denial of leave to amend only for abuse of
discretion, Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.
2008); Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008),
and we find none here. Even if Owens made progress
in curing the deficiencies in the three claims that were
dismissed without prejudice at screening, he also tried
to evade the § 1915A ruling by pressing forward with
the claims that were dismissed for failure to state a
claim. And this action could not have been inadvertent;
Owens expanded the two claims to four times their
original length. The magistrate judge was not obligated
to reward intransigence; these claims are frivolous and
again would have faced immediate dismissal. We have
held that leave to amend may be denied if the new com-
plaint does not cure deficiencies in the old one and is
doomed to the same fate. E.g., Hukic v. Aurora Loan Servs.,
588 F.3d 420, 432 (7th Cir. 2009); Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist., 133 F.3d 1054, 1057 n.4 (7th
Cir. 1998).
We have considered the remaining issues in Owens’s
brief and conclude that none has merit. For these
reasons the judgment is AFFIRMED.
3-18-11

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