Bobby IVEY, Plaintiff-Appellee, v. Michael K. HARNEY, et al., Defendants.
No. 94-2839
United States Court of Appeals, Seventh Circuit
Decided Jan. 23, 1995
Appeal of ILLINOIS DEPARTMENT OF CORRECTIONS. Argued Nov. 28, 1994.
AFFIRMED.
Susan Frederick Rhodes, Asst. Atty. Gen., Chicago, IL (argued), for Illinois Dept. of Corrections.
Michael W. Condon, Michael D. Bersani, Hervas, Sotos & Condon, Itasca, IL, for LaSalle County Comm., Anthony Condi and Ed Adams.
Robert J. Baron, Roos, Pitts & Poust, Joliet, IL, for Dr. Haney.
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge.
While confined at the jail in LaSalle County, Illinois, Bobby Ivey slipped in the shower and hurt his back. He filed an action under
Problem: the physician is in Chicago, and Ivey is imprisoned at the Taylorville Correctional Center, more than 200 miles away. The physician does not make house calls, let alone range so far from his office. Potential solution: the Illinois Department of Corrections can transport Ivey to Chicago, supervise him during the examination, and return him to Taylorville. Objection: the Illinois Department of Corrections does not make house calls, either. Transportation and lodging for a prisoner and guards is expensive. There is also a risk of escape or mayhem, for Ivey is no shrinking violet. He has been convicted of aggravated criminal assault, aggravated battery, and aggravated criminal sexual abuse. See People v. Ivey, 267 Ill.App.3d 310, 204 Ill.Dec. 695, 642 N.E.2d 157 (3d Dist.1994). The State of Illinois has nothing to do with the litigation against the sheriff, chief jailer, and chief medical officer of LaSalle County. And
Although the district court expressed some doubt on this score—suggesting in footnote 2 that it would order Ivey brought to Chicago under
Laws often require or permit a court to do something without providing details. Omission leaves in place the common law powers of the federal courts, and using these interstitial powers the courts put flesh on the statutory bones. Rivera v. Santirocco, 814 F.2d 859 (2d Cir.1987), provides a good example.
Statutory lists may create a second category of gaps. Suppose
Before
Still a third kind of gap arises when for one reason or another the normal rule does not apply to some class of cases. The court then must decide whether this means that the usual treatment is forbidden, or only that the case is not yet provided for. Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), is an apt example. A prisoner wanted his custodian to answer interrogatories. The Supreme Court understood
When a rule addresses a subject and expressly or implicitly forbids a particular procedure, however, a court may not treat the lack of authority as a “vacuum” to be filled by the very procedure that was excluded. Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988); United States v. Payner, 447 U.S. 727, 733-37, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Strandell v. Jackson County, 838 F.2d 884 (7th Cir.1988). Statutes and rules supersede the common law powers of the federal courts. Thus the Court had no difficulty concluding in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985), that, when a state prisoner must be produced to attend a federal trial, the state is responsible for transportation. The statute names the custodian as the addressee of a writ of habeas corpus. That the custodian is not a party to the litigation is irrelevant, the Court held; by providing that the writ “shall be directed to the person in whose custody the party is detained“,
By the same token, a court may not enlarge a closed-ended statutory list either by “interpreting” the list to be open-ended or by invoking
What we have said so far shows that
No one doubts that the All Writs Act may justify extraordinary relief when
Section 1651(a) authorizes only writs “agreeable to the usages and principles of law.” “In determining what auxiliary writs are ‘agreeable to the usages and principles of law,’ we look first to the common law.” United States v. Hayman, 342 U.S. 205, 221 n. 35, 72 S.Ct. 263, 96 L.Ed. 232 (1952). See also Lowery v. McCaughtry, 954 F.2d 422 (7th Cir.1992). Nothing in the common law supports an order directing a third party to provide free services that facilitate litigation. Consider a hypothetical parallel: suppose Ivey, recently released from prison, lacked the funds to travel to Chicago to meet the physician. Could a court order United Airlines to fly Ivey to Chicago free of charge for this purpose? Cf. Newman v. Metropolitan Pier & Exposition Authority, 962 F.2d 589 (7th Cir.1992) (a plaintiff‘s failure to attend her own deposition is not excused by a plea of poverty, so the court may dismiss the case as a sanction). Could the court order the physician to travel to Taylorville to examine Ivey? Could the court order the physician to donate his services, so that an impoverished litigant had a better chance of prevailing? Could the court order West Publishing to hand over a set of law books, or Apple Computer to provide a PowerBook and laser printer, so that a prisoner could better conduct litigation? We know from Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), that a court may not order even a member of its bar to donate services to a plaintiff in an action under
Of course the Illinois Department of Corrections is not a stranger to Ivey, even though it is a stranger to this suit. Yet Ivey‘s captivity is lawful; a judgment whose validity he does not question permits Illinois to confine him where it will. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Ivey could prosecute this litigation better if he were a free man, or if he were imprisoned in Chicago rather than Taylorville, but that reality does not make him free, require his relocation to the prison most favorably situated to his pending litigation, or compel his custodian to act as his chauffeur. Lawful incarceration curtails many opportunities. Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Filing a civil suit does not even entitle the prisoner to attend the trial of his own case. Stone v. Morris, 546 F.2d 730, 735 (7th Cir.1976); cf. In re Warden of Wisconsin State Prison, 541 F.2d 177 (7th Cir.1976).
If the Illinois Department of Corrections proposed to block a physician from examining Ivey, a district judge might properly employ
It may be that without a physical examination Ivey has no hope of prevailing in the underlying litigation—although at oral argument his lawyer said that he would not throw in the towel if we reversed. If expert assistance is essential, Ivey‘s lawyers should find a willing physician in Taylorville or environs (Springfield is only 20 miles away). Or they should offer to compensate the Department of Corrections for the cost of transportation and security. Lawyers often advance the fees and costs of expert assistance in tort litigation (of which Ivey‘s “constitutional tort” suit is a species), expecting to recover the outlays on the successful conclusion of the litigation. See Rand v. Monsanto Co., 926 F.2d 596 (7th Cir.1991);
REVERSED.
ILANA DIAMOND ROVNER, Circuit Judge, concurring.
I agree with the court‘s analysis of
It is axiomatic that individuals who are lawfully incarcerated in state correctional facilities have a constitutional right of access to the courts. See ante at 186. That right enables prisoners to enforce the Eighth Amendment‘s assurance against cruel and unusual punishment, for if state custodians were able to limit the access of their charges to the courts, their conduct would effectively be insulated from judicial review, no matter how cruel or unusual. The right of access is therefore central to the protection of perhaps the most sacred of a prisoner‘s constitutional rights.
Here, the State of Illinois did not prevent Ivey from petitioning the court, and because the district court was sufficiently impressed by his complaint, it appointed diligent counsel to assist Ivey in developing and prosecuting his claim. Yet when appointed counsel informed the district court that expert medical testimony would be required, the district court faced a considerable quandry—the only available medical expert was located in Chicago and could not examine Ivey at Taylorville.1 Citing the costs and risks involved in transporting Ivey to Chicago, the Illinois Department of Corrections (“IDOC“) refused, although it agreed, as it must, that the physician could examine Ivey at Taylorville. Believing that the IDOC‘s position would prevent Ivey from vindicating his constitutional rights in federal court, Judge Castillo intervened, invoking the All Writs Act to order that the IDOC take Ivey to Chicago for a medical examination.
Absent section 2241(c), I would readily endorse the district court‘s action, as it would
seem to follow logically from the prisoner‘s constitutional right of access to the federal courts. Indeed, what good is access to the courts if the only means of proving one‘s case may be completely foreclosed by the State? What‘s more, should the State‘s refusal in these circumstances escape judicial scrutiny, or should district judges be given some discretion to decide that a prisoner-plaintiff may be entitled to a limited writ in an extraordinary case? These are perplexing questions, but they ultimately are not for me or for this court to decide. Congress has addressed the issue, and I agree with my colleagues that the restrictive language of section 2241(c) deprives the district court of any authority to intervene.
Yet it seems to me that Congress’ decision to foreclose that option puts prisoners in a difficult bind. Although section 2241(c) on its face does not restrict a prisoner‘s right of access to the courts, it may effectively nullify that right in a particular case. The present circumstances are an apt example, for despite counsel‘s unwillingness to concede the point at argument (see ante at 186), Ivey surely has little chance of succeeding below without expert medical testimony to support his claim. To be sure, one may question Ivey‘s representation that the Chicago physician was the only expert available to him, but the district court apparently accepted that unchallenged assertion, and I would be reluctant on this record to second-guess the court‘s judgment in that regard. But perhaps more importantly, I fear the State will use today‘s decision to discourage similar writs when the circumstances for judicial intervention may be far more compelling.
Consider, for example, the following hypotheticals we posed to the State‘s counsel at oral argument: Assume that Ivey‘s Chicago physician had traveled to Taylorville and had examined him there, that the examination uncovered preliminary evidence that might support Ivey‘s claim, but that the physician insisted on further testing that could only be performed at an outside medical facility. Alternatively, assume that the initial examination itself required equipment that only was
Perhaps in the more compelling circumstances of my hypotheticals, the State would be willing to accommodate the prisoner‘s need for outside medical testing so long as it was reimbursed for its costs. Cf. ante at 186. But does the State have any incentive to cooperate after our decision today? In this case, defendants all are county officials, as Ivey‘s alleged injuries occurred at a county jail. Yet in most of these cases, the defendants will be employees of the State of Illinois, and can we really expect the State to cooperate with a prisoner‘s attempt to develop a case against one of its own? Cf. Anderson v. Romero, 42 F.3d 1121, 1122-23 (7th Cir.1994) (detailing IDOC‘s refusal to cooperate with counsel for a deceased prisoner-plaintiff by providing information in its possession as to next of kin). I fully appreciate the State‘s interest in avoiding the costs and risks attendant to compliance with the district court‘s writ, but I am troubled that Congress has seen fit to provide such unfettered authority to potentially-interested state officials, while at the same time depriving our judicial officers of any discretion to further the interests of justice in a particular case.
