Marlon L. Watford v. Rob Jeffreys

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2020 *
Decided November 5, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 18-3736
MARLON L. WATFORD,
Plaintiff-Appellant,
v.
ROB JEFFREYS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 15-567-SCW
Stephen C. Williams,
Magistrate Judge.
O R D E R
Marlon Watford, a Muslim prisoner at Menard Correctional Center, believes that
prison officials violated his Eighth Amendment rights when they raised photocopying
* We have agreed to decide the 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. FED. R. A PP. P. 34(a)(2)(C). Additionally, Rob Jeffreys, who
became acting director of the Illinois Department of Corrections after this appeal was
filed, has been substituted for John Baldwin as the named appellee. See FED. R. A PP. P.
43(c)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 18-3736 Page 2
charges at the prison’s law library and banned the sale of petroleum jelly and baby
powder at the commissary. The ban on petroleum jelly, he adds, also violated his First
Amendment rights and the Religious Land Use and Institutionalized Persons Act. 42
U.S.C. § 2000cc (RLUIPA). The district court entered summary judgment against him on
all but one claim and later deemed that remaining claim moot. We affirm.
In 2013, Menard implemented changes that Watford says have affected his well-
being. In September, the warden raised photocopying charges in the law library from
five to ten cents per page—a fee hike that Watford says ruined him financially,
especially because the prison has not raised his stipend. Watford, who describes himself
as an active practitioner of Al-Islam, says that the higher fee violates his faith’s
requirement that he be free from “financial oppression.”
Around the same time, prison officials decided that the commissary no longer
would stock petroleum jelly and baby powder—items Watford had relied on for
personal hygiene (to moisturize his skin and control itching and sweating) and to
cleanse his body in preparation for prayer. Prison officials maintained that these toiletry
items posed security risks: Petroleum jelly could be used as an accelerant for a fire hot
enough to melt plastic into weapons, and baby-powder containers could be used to
stash contraband. In 2014, however, officials reversed course and returned petroleum
jelly to the commissary. Watford testified that the stress from these prison policies
exacerbated his H. pylori scar tissue and triggered both stomach inflammation and
irritable-bowel syndrome.
Watford brought this suit under 42 U.S.C. § 1983 and RLUIPA seeking damages
and injunctive relief against 13 prison officials, including the director of the Illinois
Department of Corrections, Menard’s warden, and numerous correctional
officers. Early in the proceedings, the district court recruited counsel to help Watford
amend his complaint. At screening, see 28 U.S.C. § 1915A, the court allowed Watford to
proceed on his claims under the Eighth Amendment—that the photocopy-fee increase
was financially oppressive, and that the ban on the toiletry items prevented him from
maintaining his hygiene, causing great stress and gastrointestinal issues. The court also
allowed him to pursue claims under the First Amendment and RLUIPA with regard to
the ban on petroleum jelly—a ban that, he said, burdened his religious rights by
interfering with skin-care practices he followed to prepare for prayer.
A magistrate judge presiding with the parties’ consent, see 28 U.S.C. § 636(c),
eventually entered summary judgment against Watford on most of his claims.

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No. 18-3736 Page 3
Watford’s Eighth Amendment claims failed, the judge ruled, because no evidence
showed that his grievances over photocopy fees or the unavailable toiletry items
deprived him of the minimal civilized measure of life’s necessities, let alone subjected
him to a substantial risk of harm. As for his First Amendment claim, the judge
continued, the record demonstrated that legitimate penological reasons—security
concerns—justified the temporary ban on petroleum jelly. After a bench trial, the judge
ruled that Watford’s remaining RLUIPA claim (seeking injunctive relief) was moot.
Watford filed a post-judgment motion to alter or vacate the judgment, which the court
denied.
On appeal Watford challenges the entry of summary judgment on his Eighth
Amendment claims, arguing that the district court overlooked two fact questions. He
points, first, to the question whether the increased photocopying fees deprived him of
basic life necessities. But we recently addressed and rejected this same argument in
another of Watford’s appeals. See Watford v. Pfister, 811 F. App’x 374, 376 (7th Cir. 2020)
(citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). To the extent Watford suggests that
the fee hike violates the state administrative code’s requirement that photocopy costs
reflect the facility’s actual costs, 20 ILL . A DMIN. C ODE § 430.40(a), he is making a point
that is neither here nor there for our purposes. The federal constitution is not offended
simply because a state statute has been violated. See, e.g., Wells v. Caudill, 967 F.3d 598,
602 (7th Cir. 2020) (citing cases).
The second fact question proposed by Watford concerns the degree of harm he
suffered as a result of not being able to obtain petroleum jelly or baby powder from the
commissary. As evidence that these items were essential to life’s necessities, he
highlights the stress and digestive tract issues he says he suffered because of their
unavailability. But Watford is bound by his lawyer’s concession in responding to the
defendants’ motion for summary judgment that Watford had no verifiable medical
evidence of being physically harmed by the facility’s policies. See Milwaukee Ctr. for
Indep., Inc. v. Milwaukee Health Care, LLC, 929 F.3d 489, 493 (7th Cir. 2019). Even if
Watford could prove that his health issues presented a substantial risk of serious harm,
nothing in the record reflects that defendants were aware of that risk and disregarded
it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Watford next contends that summary judgment was improper on his First
Amendment claim because a material fact dispute exists over the legitimacy of the
prison’s security justifications for removing petroleum jelly from the commissary. He
points to a correctional officer’s deposition testimony that hair grease presented the

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same risks as petroleum jelly yet never was removed from the commissary. But on this
matter, too, Watford’s counsel made another binding admission in his response to the
summary judgment motion—agreeing that petroleum jelly had been removed for
security purposes. In any event, Watford identifies no evidence to support an inference
that the prison’s reasons for removing petroleum jelly were illegitimate. See O’Lone v.
Shabazz, 482 U.S. 342, 349 (1987); Kaufman v. Pugh, 733 F.3d 692, 696 (7th Cir. 2013).
Finally, Watford argues that recruited counsel provided deficient performance
that effectively deprived him of due process. But he forfeited this argument by not
raising it first before the district court. See Soo Line R.R. Co. v. Consol. Rail Corp., 965 F.3d
596, 601 (7th Cir. 2020). During discovery, the court told Watford on separate occasions
that he could move to dismiss counsel if he was dissatisfied with counsel’s
performance, but Watford stood pat. Regardless, civil litigants have “neither a statutory
nor a constitutional right to counsel,” and so due process is not at issue. Walker v. Price,
900 F.3d 933, 935 (7th Cir. 2018).
We have considered Watford’s remaining arguments, and none has merit. We
assess Watford one strike for this frivolous suit and a second one for pursuing this
appeal. See 28 U.S.C. § 1915(g); Flynn v. Thatcher, 819 F.3d 990, 992 (7th Cir. 2016).
AFFIRMED

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