Gregory Koger v. THOMAS J. DART, Sheriff of Cook County, and COOK COUNTY, ILLINOIS

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2892
GREGORY KOGER,
Plaintiff-Appellant,
v.
THOMAS J. DART, Sheriff of Cook County, and COOK COUNTY,
ILLINOIS,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 6361 — Maria Valdez, Magistrate Judge.
____________________
ARGUED FEBRUARY 20, 2020 — DECIDED FEBRUARY 25, 2020
____________________
Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. 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

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2 No. 19-2892
resulting suit without reaching the merits. In a prior decision
we agreed with that ruling in part but remanded with in-
structions to resolve two claims on the merits: whether the
policy is valid and whether Koger is entitled to compensa-
tion 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 confis-
cated 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 wriien.
Cook County did not prevent Koger from receiving and
reading books. He could receive as many and read as much
as he wanted. Seiing a cap on how many books could be in
his cell at once did not hamper his reading—he does not say
that he could read four books in a day, so his ability to send
finished books home and obtain more in the mail from
friends and family could support even a voracious reading
habit. We know from Turner v. Safley, 482 U.S. 78 (1987), and
Overton v. BazzeBa, 539 U.S. 126 (2003), that prisons have
substantial discretion to manage their charges and that free-
doms enjoyed by persons not in detention (such as the free-

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No. 19-2892 3
dom to have extensive libraries) need not be available to
those in custody. Beard v. Banks, 548 U.S. 521 (2006), applies
this principle to conclude that prisons may deny some clas-
ses of inmates access to any reading maier. The Jail’s three-
books-at-a-time policy is much more favorable to inmates
than the policy sustained in Beard. And Koger does not con-
tend that the exclusion of religious and legal materials from
the three-book limit is a form of content discrimination that
spoils the Jail’s policy.
Nonetheless, Koger insists, Cook County forfeited its
ability to curtail the size of prisoners’ in-cell collections by
not enforcing its policy strictly enough. Allowing prisoners
to accumulate books (recall that Koger amassed more than
30), demonstrates that the three-book restriction is unim-
portant to prison management. Or so the argument goes.
Turner, Overton, and Beard give wardens substantial discre-
tion to balance inmates’ interests against the needs of securi-
ty, but since lax enforcement demonstrates that the Jail’s in-
terests do not really support the policy, the inmate’s interests
must prevail, Koger insists.
Yet rules and regulations are never perfectly enforced. A
federal statute prohibits felons from possessing firearms, but
no one would say that if agents fail to arrest every felon in
possession, or prosecutors decline to press charges against
all arrested felons, this shows that the prohibition isn’t im-
portant. It shows instead that enforcement is costly, and like
all good things it will be pursued only to the extent that the
benefits exceed the costs. Prison guards have many tasks in
addition to removing excess books from inmates’ cells, and
some of those tasks—including confiscating drugs and
weapons, preventing violence among the prisoners, and en-

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4 No. 19-2892
suring that food, medicine, and emergency assistance are de-
livered as needed—have higher priority. Not even Stalin’s
Gulag enforced all rules against all prisoners all the time.
Stringent enforcement is not essential to establishing that
given rules are reasonable.
Cook County advances, and the district court accepted,
multiple reasons for the three-book policy. One is that books
can be used to contain or exchange coded messages among
prisoners, making it necessary to leaf through the pages
when doing a property search. The more books a cell has,
the more onerous this task. Another is that books may be
hollowed out to hide drugs and other forbidden items, or
that weapons such as razors or knives may be hidden in
books’ covers and spines. Curtailing the need for labor-
intensive searches is a good reason for limiting the number
of books in a cell. These considerations also show why the
Jail did not adopt Koger’s proposal to allow any books that
fit within an inmate’s property bag. Many items in the bag
(the Jail permits roughly two cubic feet of clothes and goods,
not counting shoes) are easy to assess for danger; not so with
books. The Jail offers other reasons in support of its policy,
but those we have mentioned suffice.
Although the three-book policy is valid, it does not fol-
low that guards are free to throw confiscated books on a
bonfire or otherwise dispose of them. Books are property,
yet Koger was not asked whether he wanted them sent home
or mailed to a friend. The prison could have charged Koger
the mailing costs, see Streckenbach v. VanDensen, 868 F.3d 594
(7th Cir. 2017), but his books were destroyed without any
option to send them outside the prison. Nor was Koger
asked which three he wanted to keep.

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No. 19-2892 5
The descriptions in this opinion track Koger’s affidavits,
which we must accept for now because he is the party op-
posing the Jail’s motion for summary judgment. The magis-
trate judge wrote that Koger’s affidavits are self-serving and
would be disregarded unless corroborated. 2019 U.S. Dist.
LEXIS 152878 at *10. For this proposition she relied on a
statement in Hall v. Bodine Electric Co., 276 F.3d 345, 354 (7th
Cir. 2002), that was overruled by Hill v. Tangherlini, 724 F.3d
965, 967–68 & n.1 (7th Cir. 2013). We observed in Hill that
most evidence can be called self-serving, but a witness’s self-
interest does not prevent a trier of fact from crediting a
statement based on personal knowledge. Accord, e.g., Payne
v. Pauley, 337 F.3d 767 (7th Cir. 2003); Sanders v. Melvin, 873
F.3d 957 (7th Cir. 2017). It is regreiable that a district court
should rely on an ill-considered comment that has been dis-
avowed expressly and repeatedly.
The self-serving nature of Koger’s factual assertions is
not the only reason he lost. The magistrate judge added that
the complaint’s failure to mention the Due Process Clause
meant that Koger could not collect damages to reflect the
value of the lost books. 2019 U.S. Dist. LEXIS 106447 at *5. The
judge recognized that Johnson v. Shelby, 574 U.S. 10 (2014),
held that complaints need not set out legal theories, but she
dismissed Johnson as irrelevant because defendants moved
for summary judgment rather than to dismiss the complaint.
This distinction eludes us. If as Johnson holds complaints
need not plead law, then it does not maier whether the de-
fendant moves to dismiss the complaint or for summary
judgment; in either event, the fact that the complaint omits a
legal theory cannot block a plaintiff from invoking that theo-
ry.

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6 No. 19-2892
Complaints plead grievances, not legal theories, and
Koger’s complaint spelled out his grievance: the Jail confis-
cated his books and did not return them when he was re-
leased. What rule of law, if any, those acts violated, was a
subject to be explored in other papers, such as motions,
memoranda, and briefs. Koger initially relied only on the
First Amendment but at later stages of the suit invoked the
Due Process Clause too; he did not need to amend the com-
plaint to do so.
Especially not when the district court itself injected the
Due Process Clause into the case. The initial dismissal of the
complaint was based in part on ParraB v. Taylor, 451 U.S. 527
(1981), which holds that the opportunity to sue in state court
is all the process due for certain kinds of deprivations. Our
first opinion explains why ParraB does not support dismis-
sal, see 901 F.3d at 830, but the magistrate judge’s reliance on
ParraB shows a recognition that due-process interests were at
stake whether or not the complaint laid them out. Having
dismissed the suit once on due-process grounds, the district
court should not have held on remand that due-process ar-
guments cannot be considered at all.
Defendants make a different argument: that the books (in
excess of three) were contraband, which public officials may
seize and destroy without notice, hearings, or compensation.
That proposition is far from clear: That public officials call
something contraband does not make it so. For example, a
statute may provide that a car used to transport cocaine may
be confiscated, but that must be done through a forfeiture
proceeding, after notice and an opportunity for a hearing.
The car’s owner may contend that it was not used to
transport drugs, that someone else was responsible for any

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No. 19-2892 7
drugs (cf. Bennis v. Michigan, 516 U.S. 442 (1996)), or that
confiscation would be a constitutionally excessive fine (see
Timbs v. Indiana, 139 S. Ct. 682 (2019)).
Trying to determine when hearings are required before
the seizure or destruction of chaiels that are properly called
contraband (e.g., cocaine) is not necessary here, however,
because books are not contraband. Illinois has adopted by
statute a long list of items classified as contraband inside
prisons. 720 ILCS 5/31A-0.1. Books are not on that list. Excess
books may be a kind of contraband, but only while in the
cell. Cook County acknowledges that Koger could have
mailed the books home an hour before the search and that
the outbound books would not have been seized and de-
stroyed. This is what sets up his argument: that after finding
too many books in his cell, the Jail should have (a) asked him
which he wanted to keep, and (b) offered to store the re-
mainder until his release or ship them if he would pay the
costs. By destroying the books straightaway, Koger insists,
the Jail exposed itself to damages equal to their value.
We have seen before, and rejected, an argument that
items deemed contraband only because found in the wrong
hands may be summarily destroyed. Agents seized more
than 30 firearms from Leroy Miller in connection with his
arrest for aiding and abeiing a felon’s unlawful possession
of weapons. They missed the deadline for initiating forfei-
ture proceedings but contended that the weapons, as contra-
band, could be destroyed anyway. We disagreed, distin-
guishing Miller’s possessory interest in the guns (forbidden)
from his property interest (which continued). United States v.
Miller, 588 F.3d 418 (7th Cir. 2009). Miller, as owner, re-
mained free to sell the guns, have the guns sold for his ac-

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8 No. 19-2892
count, or give them away, though new possessors could not
hold them for Miller’s future use. What was true of Miller is
true of Koger too: he lost a possessory interest in the books
by keeping too many in his cell, but he did not automatically
lose his property interest. He was entitled to sell or ship the
books, or reclaim them from the Jail at the end of his con-
finement.
This means that we must remand a second time. Cook
County denies having a policy of destroying excess books.
Proof of a policy is essential; it is not enough for Koger to
show that his own books vanished. Koger has sued only the
County, whose liability depends on proving that it imple-
mented an unconstitutional policy. See Monell v. New York
City Department of Social Services, 436 U.S. 658 (1978). The
Sheriff, sued in an official capacity, is just a proxy for the
County. See Will v. Michigan Department of State Police, 491
U.S. 58 (1989). In addition to ascertaining the Jail’s policy,
the district court will need to decide what choices, if any,
were offered to Koger when the guards discovered the ex-
cess books and what became of them; a bad policy would
not lead to damages if it did not injure Koger. It may be nec-
essary to resolve other questions as well—and any disputed
issues of material fact are the province of a jury.
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 fur-
ther proceedings consistent with this opinion.

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