Due Process Violation

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7^th Circuit Court of Appeals

Case Name: Gregory Koger v. Thomas J. Dart

Case No.: 19-2892

Officials: BAUER, EASTERBROOK, and MANION, Circuit Judges.

Focus: Due Process Violation

While he was confined in the Cook County Jail, Gregory Koger accumulated books in his cell. Eventually guards removed more than 30, relying on a policy that prisoners may not have more than three books or magazines at a time (excluding religious and legal materials, which do not count against the limit). A magistrate judge, presiding by consent under 28 U.S.C. §636(c), dismissed the resulting suit without reaching the merits. In a prior decision we agreed with that ruling in part but remanded with instructions to resolve two claims on the merits: whether the policy is valid and whether Koger is entitled to compensation for the books he lost as a result of its enforcement. Lyons v. Dart, 901 F.3d 828 (7th Cir. 2018).

The magistrate judge then granted summary judgment to the defendants. She held that the three-book policy is valid under the First Amendment (applied to states via the Due Process Clause of the Fourteenth) and that it makes no difference whether the guards asked Koger which three books he wanted to keep or what the Jail did with the confiscated books, because his complaint does not articulate a due process (or Takings Clause) theory. 2019 U.S. Dist. LEXIS 106447 (N.D. Ill. June 26, 2019), reconsideration granted and original decision reaffirmed with additional reasoning, 2019 U.S. Dist. LEXIS 152878 (N.D. Ill. Sept. 9, 2019). We start with Koger’s contention that the three-book limit violates his right to freedom of speech, which defendants concede includes a right to read what other persons have spoken or written.

The judgment is affirmed to the extent that it finds the Jail’s three-book policy consistent with the First Amendment but otherwise is vacated, and the case is remanded for further proceedings consistent with this opinion.

Affirmed in part. Vacated and remanded in part.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.