David Pannell v. Sarah Eads

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 14, 2024*
Decided August 15, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 23-2972
DAVID PANNELL,
Plaintiff-Appellant,
v.
SARAH EADS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:18-cv-00522-JRS-MKK
James R. Sweeney II,
Judge.
O R D E R
David Pannell contends that, in violation of his First Amendment rights, prison
officials confiscated books (which they believed he did not own) because he asked to
* This appeal is successive to No. 20-1313 and is decided under Operating Procedure 6(b) by
members of the panel in No. 20-1313 who remain on this court. The third member of the panel in this
appeal, No. 23-2972, was selected at random. We have agreed to decide this case without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED . R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-2972 Page 2
spend more time in the library. The district court entered summary judgment for the
defendants. It correctly ruled that undisputed evidence showed that the officials
lawfully confiscated the books because they did not belong to Pannell. We thus affirm.
When Pannell was transferred from Indiana State Prison in Michigan City,
Indiana, to the Putnamville Correctional Facility in Greencastle, Indiana, in May 2018,
he brought with him nearly ninety law books. Because he could keep only ten books in
his cell, the warden let him keep the rest in the prison library. Shortly after his arrival,
Sarah Eads, the prison librarian, notified Pannell about a new policy that applied to all
prisoners that reduced the number of days each week that Pannell could access the
library—down from three to two days per week. Pannell did not like that change. He
asked Eads to continue his access at three days per week. Eads denied the request. On
August 2, he told her that, in his view, denying his request restricted his access to the
courts by limiting his contact with his law books.
The day after Pannell told Eads that he wanted more frequent access to his law
books than the prison’s policy permitted, several events involving his books occurred.
First, Eads asked Pannell for his consent to scan his law books onto a computer hard
drive assigned to Pannell. He refused. An hour later, Eads emailed the law librarian at
Indiana State Prison, asking for information about Pannell and whether he had bought
law books there. Around the same time, a different prison official, having “received
word” that Pannell was “slowly removing his legal documents from the law library” at
Putnamville, asked an officer to check Pannell’s cell to “make sure he does not have a
cardboard box full of legal materials.” The other officer reported that Pannell had excess
property in his cell and told Pannell to put it into his property box.
A few days later, Eads received information about Pannell’s books. The librarian
at Indiana State Prison told Eads that Pannell had not bought any books through its law
library and that it does “not give any of our books away to any offenders.” Eads
worried that Pannell was “exchanging books out” and that “some books have names of
other offenders and law library scratched out.” A prison official “shook down” Pannell
and did not find unauthorized books in his possession, but said that “someone else”
might be “holding them for him.” Eads sent the librarian at Indiana State Prison photos
of Pannell’s books and manuals in the Putnamville library, and the librarian identified
several that appeared to belong to Indiana State Prison. Meanwhile, Pannell asked
prison officials for a grievance form to complain that Eads had denied him access to the
courts by refusing his request for a three-days-a-week library schedule.

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No. 23-2972 Page 3
After Eads learned that Pannell may have stolen books, Pannell was charged
with misconduct. Eads confiscated the suspected books and, when Pannell saw Eads,
she asked him to sign forms stating that the books belonged to another offender or
another institution’s law library. Pannell refused to sign the forms. He then complained
about these events to a grievance specialist, who wrote a conduct report charging
Pannell with unauthorized possession of property. The report stated that the prison
confiscated twenty-seven books because they belonged to another institution and seven
books because they had other offenders’ names on them or “other markings … to hide
the owner name.” Pannell complained to the warden and others that Eads and other
staff were retaliating against him. After a hearing and unsuccessful appeal, Pannell was
convicted of the charges based on the evidence of the email exchanges between the law
librarians.
This lawsuit followed. Pannell sued Eads and others for violating his First
Amendment rights by confiscating his books in retaliation for “past grievances” that he
had filed. The district court dismissed the suit for failure to state a claim. In a previous
appeal, we vacated the judgment for a “narrow” remand to allow the district court to
reevaluate the claim under the proper standard. Pannell v. Eads, 856 F. App’x. 628
(7th Cir. 2021). As the defendants conceded, the district court had incorrectly focused on
Pannell's persistence in filing new grievances after the defendants confiscated his books,
rather than on how an “ordinary” inmate would react to the confiscation. Id. at 629. On
remand, the district court initially gave Pannell several extensions of time to amend his
complaint. But it denied Pannell’s final request because he sought to add claims against
a new defendant, the librarian of Indiana State Prison, and these claims fell “outside the
narrow scope of the remand.” The defendants then successfully moved for summary
judgment. The court reasoned that, although the confiscation of books could deter an
ordinary prisoner from filing grievances, the undisputed evidence showed that the
defendants confiscated the books for a legitimate reason—their genuine belief that
Pannell did not own them.
On appeal, Pannell argues that the district court wrongly entered summary
judgment on his First Amendment claim. We assess that ruling de novo, viewing the
record in the light most favorable to Pannell, the non-moving party. See Manuel v.
Nalley, 966 F.3d 678, 680 (7th Cir. 2020). In his first appeal, Pannell contended that Eads
confiscated his books in order to punish him for his constitutionally protected speech of
filing “past grievances.” In the current appeal, he argues that Eads investigated whether
he owned the law books in his possession in order to punish him for his constitutionally
protected speech of asking Eads for more personal library time.

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No. 23-2972 Page 4
Pannell’s reframed argument is unavailing for three reasons. First, he assumes
that the First Amendment protects “everything” that a prisoner asks of a member of the
prison staff—in this case, Pannell’s request for more personal library time—but that
assumption is questionable. See Herron v. Meyer, 820 F.3d 860, 863–64 (7th Cir. 2016).
Second, Pannell assumes that an ordinary prisoner who asks for something (i.e., library
access) would be deterred from doing so if, in response to the request, the prison official
to whom the request is made asks whether the prisoner has violated any rules (i.e.,
possesses books he does not own). But Pannell has not cited authority to support this
assumption, and we are not aware of any. Third, the undisputed evidence is that, for a
genuine and legitimate reason, the defendants would have confiscated Pannell’s law
books regardless of any hostility about his grievances: The defendants reasonably and
honestly believed, from the report from Indiana State Prison, that Pannell possessed
books he did not own. And under Putnamville’s uncontested rules, the prison must
confiscate from a prisoner property that does not belong to him. Offender Personal
Property, Ind. Dep’t of Corr. Pol’y & Admin. Proc. 02-01-101. Thus Pannell cannot
prevail on his First Amendment claim because, once the defendants learned that he
possessed books he did not own, they would have confiscated the books regardless of
their views about his grievances. See Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011).
Finally, Pannell argues that the district court wrongly denied him leave to amend
his complaint to add claims against a new defendant, but this argument fails for two
reasons. The first reason is the mandate rule. We made clear that our earlier remand
was narrow, and it did not contemplate an expansion of the case to include new
defendants, such as the librarian from Indiana State Prison, as Pannell proposed. The
district court did not err by staying within the narrow scope of our remand. See Sullivan
v. Flora, Inc., 63 F.4th 1130, 1138 (7th Cir. 2023). Second, a district court may deny a
motion for leave to amend if the amendment would be futile. Runnion ex el. Runnion v.
Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th Cir. 2015). An
amendment is futile if it proposes an untimely claim. See Sound of Music Co. v. Minn.
Mining & Mfg. Co., 477 F.3d 910, 922–23 (7th Cir. 2007). The confiscation of books
occurred in 2018, but Pannell did not propose to add the other librarian until 2023, more
than two years after the expiration of Indiana’s two-year statute of limitations.
See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); I ND. C ODE § 34-11-2-4. That
delay rendered the proposed claim futile.
AFFIRMED

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