Opinion
No. 3:97cv0696 AS
July 3, 2002
MEMORANDUM AND ORDER
This case was filed pro se on October 28, 1997, and for a period of time, this Court designated Michael L. Parkinson as so-called appointed counsel in this case. Michael L. Parkinson is literally an expert on prisoner litigation, both under 42 U.S.C. § 1983 and 28 U.S.C. § 2254. He has asked and been granted the opportunity to withdraw as counsel in this case. There are extensive proceedings, 16 pages of docket, and a Court docket going over a period of well over three years. The immediate subject is the renewed motion for summary judgment on the retaliation claim filed by the two remaining defendants on March 15 this year. There has been compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982) in this case, and there is no response to that motion, notwithstanding that the plaintiff was given until June 30, 2002 to respond. No such response has been filed.
This Court has given close attention to the memorandum in support of the renewed motion which was filed on April 15, 2002, and this Court is well aware of the mandates of the Court of Appeals, and has every intention of complying with them. This Court is also well aware that in this circuit, as elsewhere, the subject of retaliation is literally a hot button litigation issue.
What concerned the Court of Appeals and concerns this Court now is the assertion that the defendants transferred this plaintiff to administrative segregation in retaliation for exercising his right to access to the courts by filing this lawsuit. See Bounds v. Smith, 430 U.S. 817 (1977). The Attorney General of Indiana appears to be correct that this Court is not mandated in this procedural context in this case to have an evidentiary hearing. This is especially true in that this plaintiff has had the services of Mr. Parkinson. Zimmerman v. Tribble, 226 F.3d 568 (7th Cir. 2000), appears to be the most recent word on retaliation in this particular context.
It needs to be remembered that this is not a petition under 28 U.S.C. § 2254 challenging a disciplinary proceeding under such current cases as Cox v. McBride, No. 01-1413 (7th Cir. January 29, 2002), Eades v. Hanks, No. 01-1720 (7th Cir. January 18, 2002), Piggie v. McBride, No. 01-2611 (7th Cir. January 17, 2002), White v. Indiana Parole Board, 266 F.3d 759 (7th Cir. 2001), and Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001). See also Gaither v. Anderson, 236 F.3d 817 (7th Cir. 2000). There is a difference between the habeas corpus remedy and the remedies under 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475 (1973), and Allen v. Duckworth, 6 F.3d 458 (7th Cir. 1993), cert.den., 114 S.Ct. 1106 (1994). There is in the re cord extensive sworn testimony under Rule 56 by both of the defendants here that indicates the absence of retaliation.
In any event, it appears from the docket sheet of this Court that Bobby Ray Long, Jr. is no longer in the custody of the Indiana Department of Corrections, although the relevant papers from this case were forwarded to him at his last known address. Certainly, this Court is well aware of its obligations, even under these circumstances, under Haines v. Kerner, 404 U.S. 519 (1972), as well as the mandates of the Court of Appeals. However, it appears to this Judge that this plaintiff, no longer in custody, has not responded appropriately even though he has been given the opportunity to do so.
Therefore, it is this Court's conclusion now that the pending motion for summary judgment by the remaining defendants should be granted, with each party to bear their own costs. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.