David Pannell v. Sarah Eads

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2021*
Decided August 17, 2021
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20‐1313
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‐DLP
James R. Sweeney II,
Judge.
O R D E R
David Pannell, an Indiana prisoner, appeals the dismissal of two claims arising
from the decision of prison staff to confiscate his legal books and to limit his access to
the prison’s library. He alleges, first, that they did so to retaliate against him for filing
grievances, thereby violating his rights under the First Amendment. See 42 U.S.C.
§ 1983. He also claims that they took his property without a hearing, violating his right
* 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. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20‐1313 Page 2
to due process under the Fourteenth Amendment. Id. The district court dismissed the
suit for failing to state a claim. It correctly dismissed the due‐process claim, reasoning
that a post‐deprivation tort remedy provides Pannell with adequate process for the
allegedly unauthorized taking of his books. But, as the defendants concede, the district
court applied the wrong standard to Pannell’s First Amendment claim, requiring that
we vacate the judgment on that claim and remand.
Pannell brought nearly 90 legal books with him when he transferred from
Indiana State Penitentiary to Putnamville Correctional Facility in May 2018. Corrections
officers allowed him to keep ten books in his cell, explaining that he could access the
other books at the prison library three times a week. Three months later, when the
library changed its schedule, Pannell could access those books only two days a week.
He complained, both informally and then through the grievance process, that the prison
librarian, Sarah Eads, and others were restricting his access to the courts by so limiting
his access to his books in the library. Around this time, Eads inventoried Pannell’s
books and determined that a third of them were stolen. Pannell received a conduct
report for possessing stolen property, and those books were confiscated.
Believing that prison officials wrongly disciplined him and stole his library
books, Pannell filed new grievances and then sued in state court on two claims relevant
here. He alleges that the defendants first violated the First Amendment by restricting
access to his legal books and the library to retaliate for his past grievances; second, they
violated his rights under the Fourteenth Amendment by confiscating the books without
a hearing in which he could prove that they were his. Defendants removed the case to
federal court, where Pannell has three strikes, 28 U.S.C. § 1915(g), and faces a filing bar.
See Support Sys. Int’l v. Mack, 45 F.3d 185, 186 (7th Cir. 1995). The district court ruled that
Pannell’s complaint fell outside of the filing bar, see Pannell v. Neal, Nos. 17–1536, 17–
1573 (Apr. 11, 2017 Order), and the defendants do not dispute this on appeal.
The district court dismissed Pannell’s amended complaint at screening for failing
to state a claim. 28 U.S.C. § 1915A(b). The judge explained that Pannell “ple[aded]
himself out of court” on his First Amendment claim by admitting that he filed more
grievances despite defendants’ alleged retaliation. The judge also dismissed the
Fourteenth Amendment claim, reasoning that Pannell had an available and adequate
post‐deprivation remedy, the Indiana Tort Claims Act. Ind. Code § 34–13–3–7.
On appeal, Pannell argues—and defendants agree—that the district court
applied the wrong standard to his First Amendment claim and it must be reinstated.

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No. 20‐1313 Page 3
We ruled in Douglas v. Reeves, 964 F.3d 643, 646 (7th Cir. 2020), that the test for
determining whether prison staff violated a prisoner’s First Amendment right to bring
grievances is objective: would the response of prison staff to a prisoner’s grievance
deter a prisoner of “ordinary firmness” from seeking redress. Id. The actual persistence
of the plaintiff in continuing to file grievances despite alleged retaliation by prison staff
is “irrelevant.” Id. But as the defendants concede, the district court focused on Pannell’s
undeterred persistence in filing new grievances after the defendants removed library
access and law books, rather than on how an “ordinary” inmate would react. Following
the defendants’ suggestion, we remand the First Amendment claim for that inquiry.
But the remand on this claim is narrow. First, it covers only the defendants
personally involved in removing access to the books. See Grieveson v. Anderson, 538 F.3d
763, 776 (7th Cir. 2008). The parties dispute who was personally involved, so the district
court will need to resolve this dispute. Also on remand, the district court can consider
the availability of possible defenses. A few weeks before the district court dismissed this
suit, an Indiana court dismissed on the merits a nearly identical complaint in state
court. See Pannell v. Carter, 157 N.E.3d 1263 (Ind. Ct. App. 2020). The conclusion of the
state proceedings on this same claim may raise the prospect of a preclusion defense.
Finally, if the prison found after a disciplinary proceeding that Pannell did not own the
books (and as a result confiscated them and lengthened his custody), then a civil‐rights
suit that, to succeed, requires a finding that he owned the books, may be blocked.
See Savory v. Cannon, 947 F.3d 409, 423–24 (7th Cir. 2019) (en banc).
Pannell’s Fourteenth Amendment claim—that the defendants took his books
without first providing a hearing at which he could establish his ownership of them—
fails. He contends that the defendants stole his books by ignoring the regular process
for discipline. This process requires that “[b]efore imposing any disciplinary action,”
the prison “shall” give the inmate a chance to contest allegations against him. Ind. Code
Ann. § 11‐11‐5‐5. But an allegation that prison officials stole an inmate’s property by
using unauthorized means to take it does not state a due‐process violation if the state
provides him with an “adequate post‐deprivation remedy.” See Hudson v. Palmer,
468 U.S. 517, 536 (1984). The Indiana Tort Claims Act provides a post‐deprivation
remedy for the precise kind of theft of property that Pannell has alleged. Because
Pannell does not argue that this remedy is inadequate, his due‐process claim fails.
Accordingly, we VACATE the judgment on the First Amendment claim and
REMAND it for further proceedings. In all other respects, we AFFIRM.

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