Da Vonte Love v. David A. Clarke, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 17, 2014*
Decided April 25, 2014
Before
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐2426
DA VONTE LOVE,
Plaintiff‐Appellant,
v.
DAVID A. CLARKE, JR., et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 11‐C‐1054
William C. Griesbach,
Chief Judge.
O R D E R
Da Vonte Love, a Wisconsin inmate, contends in this suit under 42 U.S.C. § 1983
that four correctional officials must pay damages for enforcing a state‐court order that
restricted his contact with the outside world. Concluding that the defendants were
either not personally involved in enforcing the court order or entitled to quasi‐judicial
immunity, the district court granted summary judgment. Because Love cannot show
that the court abused its discretion in denying his request to recruit counsel, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED . R. A PP . P. 34(a)(2)(C).

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No. 13‐2426 Page 2
After Love was convicted of substantial battery, WIS. STAT. § 940.19(2), he faced
trial for sexual assault, WIS. STAT. § 940.225(2)(a). The state court found that he had
attempted to dissuade the victim from testifying and ordered that his phone, visitation,
and mail privileges be rescinded, “with the exception of any communication to his
attorney,” to prevent him from further intimidating witnesses. WIS. STAT. § 940.47.
Prison and jail officials enforced the order by moving Love to maximum‐security areas
as he awaited trial for more than two years. In addition to limiting his contact with
outsiders, the rules of these areas also strictly limited what items he could keep in his
cell and restricted his access to educational and recreational programs and religious
services. Believing that these restrictions deprived him of his constitutional rights,
Love sued in federal court.
The district court allowed Love to proceed on claims that the defendants had
deprived him of his first‐amendment rights and entitlement to life’s basic necessities,
but denied two motions. First, it denied his motion to stay the state‐court order,
explaining that it could not interfere in state‐court criminal proceedings. See Younger v.
Harris, 401 U.S. 37, 43 (1971). It added that if Love wished to appeal the no‐contact
order, he could do so through his attorney in state court. The court also declined Love’s
request to recruit counsel, reasoning that, even with his below‐average reading skills
and need for psychiatric medication, Love appeared capable of handling his own case,
had handled others by himself, and had not provided any evidence that he had tried to
obtain legal counsel. To address Love’s argument that the no‐contact order hampered
his prosecution of this case, the district court delayed discovery until after the end of
Love’s state trial, when the no‐contact order was lifted.
After discovery, the defendants moved for summary judgment. Love did not
respond to the defendants’ statement of material facts, but asked the court to extend
discovery. The court denied his request after noting that Love had not identified the
discovery he needed or adequately explained why he was unable to obtain it earlier,
during the three months that the court had allowed. The summary‐judgment record
reflects that, except for six months in segregation as punishment for disciplinary
infractions, Love was confined to the maximum‐custody areas of both jail and prison.
Maximum‐custody confinement, which restricted Love to one hour of exercise daily,
was the easiest place for staff to enforce the state‐court order limiting Love’s outside
communications to only his attorney. A response that Love received to a jail grievance
confirms that jail staff refused to allow Love to call even the court:

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No. 13‐2426 Page 3
You will not be allowed to call the courts due to the fact that you are
representing yourself on a CIVIL case. That case has nothing to do with the
case that you are serving time for. You are allowed attorney calls for criminal
cases. A Civil cases [sic] has nothing to do with your criminal case.
The district court granted summary judgment to all defendants. It explained that
three of the defendants were not liable because they were undisputably not personally
involved in a decision to place Love in segregation or maximum custody. The final
defendant was a prison security director who had reviewed Love’s status and limited
his phone calls and his access to non‐legal mail. The court granted him summary
judgment based on quasi‐judicial immunity for enforcing a state‐court order.
On appeal we understand Love to argue that the district court erred in denying
his motion for recruitment of counsel. He asserts generally that counsel was necessary
given his elementary‐level education and contends that counsel would have been able
to help him obtain the names of other staff who had personally reviewed his status.
The district court correctly applied the two‐step standard articulated in Pruitt v.
Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc), and reasonably declined to recruit
counsel. First, the court appropriately noted that Love had not described, as Pruitt
requires, what effort he made to obtain counsel once the no‐contact order was lifted.
We understand Love to challenge this observation by providing us with two letters
from legal organizations declining to represent him. But he did not submit these letters
to the district court (in fact, both were written after the court made its decision), so he
cannot rely on them to charge the district court with error. See id. at 659. Second, the
district court acknowledged Love’s limited education and his general assertion of side
effects from psychiatric medication. But it appropriately weighed those factors against
his demonstrated ability to articulate his grievances, his history of handling other
litigation, and his personal knowledge of the facts underlying his claims here. Given
these factors, the court did not abuse its discretion in concluding that Love was capable
of litigating this case. See Bracey v. Grondin, 712 F.3d 1012, 1017–18 & n.3 (7th Cir. 2013);
Jackson v. Kotter, 541 F.3d 688, 699–700 (7th Cir. 2008).
In any event, we will remand a case only if there is a reasonable likelihood that
the presence of counsel would have changed the outcome, see Pruitt, 503 F.3d at 660,
and Love cannot make that showing. The correctional staff who limited Love to
contacting only his attorney are entitled to absolute immunity for enforcing the precise
terms of a valid court order. See Snyder v. Nolen, 380 F.3d 279, 287 (7th Cir. 2004);

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No. 13‐2426 Page 4
cf. Dunn v. City of Elgin, Illinois, 347 F.3d 641, 646–48 (7th Cir. 2003). We recognize the
first‐amendment concerns of a state‐court order that barred Love from calling even the
courts. But the place to contest the order was (through his attorney) in the state court
that issued the order, not in a suit for damages against those enforcing it. See Nelson v.
Murphy, 44 F.3d 497, 502 (7th Cir. 1995) (explaining that detainees seeking to challenge
“conditions of confinement that are actively supervised by state courts” must litigate
those conditions in state court).
We are aware that, by placing Love in maximum‐custody status, staff went
beyond the requirements of the state‐court order. Staff also limited his access to
programs generally available to other inmates. But none of the restrictions mentioned
in Love’s complaint or other filings (namely, a lack of education programs, religious
services, and recreation time) deprived him of a constitutional right. We have explained
that convicted prisoners enjoy no free‐standing constitutional right to educational or
rehabilitative programs, Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000), and a
lack of religious services in itself is not a substantial burden on religious practice,
Kaufman v. McCaughtry, 419 F.3d 678, 682–83 (7th Cir. 2005). Finally, although a long
deprivation of out‐of‐cell exercise can violate the Eighth Amendment, Turley v. Rednour,
729 F.3d 645, 652 (7th Cir. 2013), Love did not dispute the defendants’ evidence that he
was generally allowed one hour per day of recreation time while on maximum‐custody
status, which satisfies constitutional norms, see Pearson v. Ramos, 237 F.3d 881, 884–85
(7th Cir. 2001), Davenport v. DeRobertis, 844 F.2d 1310, 1315–16 (7th Cir. 1988).
AFFIRMED.

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