                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




              United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Submitted January 4, 2006*
                             Decided January 5, 2006

                                      Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. DANIEL A. MANION, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-1957

ERIC SANDERS,                               Appeal from the United States District
     Plaintiff-Appellant,                   Court for the Northern District of Indiana,
                                            South Bend Division
      v.
                                            No. 3:02-CV-0415 RM
SUSAN COLLINS,
    Defendant-Appellee.                     Robert L. Miller, Jr.,
                                            Chief Judge.

                                    ORDER

       Eric Sanders brought this action under 42 U.S.C. § 1983 claiming that Susan
Collins, an Indiana deputy prosecutor, provoked county jailers to violate his
constitutional rights while he was being held as a pretrial detainee. The district
court on the eve of trial dismissed the suit sua sponte after affording Sanders an
opportunity to object; Sanders appeals the dismissal and we affirm.




       *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1957                                                                     Page 2

       In February 2001, Sanders was charged with murder in Lake County,
Indiana, and ordered detained in the county jail pending trial. While there, he
repeatedly telephoned two of the state’s witnesses, prompting prosecutors to obtain a
no-contact order from the Indiana court assigned to the case. Sanders promptly
violated the order, so Collins admittedly asked a jail warden to prevent him from
making further calls to the two witnesses. The warden instead placed Sanders in
“isolation lock-down” for almost a year, which, according to Sanders, subjected him
to “extreme and excessive punitive confinement.” Sanders was later convicted of the
charged murder and is now in state prison serving a 65-year sentence.

       In his complaint Sanders alleged that Collins did more than ask for a phone
restriction and in fact was behind the transfer to segregation. (Sanders also blamed
jail employees for the move, but after filing this suit he settled with the other
defendants who were not dismissed at initial screening, see 28 U.S.C. § 1915A; only
the claim against Collins is before us.) Collins answered the complaint and moved
for judgment on the pleadings, which the district court denied. Both Sanders and
Collins then moved for summary judgment, which the court also denied.
Undeterred, Collins sought leave to submit a second motion for summary judgment,
and when the district court refused, she sought reconsideration of that ruling to no
avail. Sanders and Collins thus headed for trial, and both sides announced they
were ready.

       Four days before trial, however, the district court concluded while preparing
jury instructions that Sanders had no case because he did not contend, nor could he
prove, that Collins did anything other than ask the warden to enforce the no-contact
order by preventing Sanders from calling the two witnesses who were off limits. The
court, explaining that previously it “did not glean” this shortcoming from Collins’s
motions, reasoned that Sanders had no right to contact those witnesses in light of
the no-contact order, and that Sanders had no evidence that Collins “intended or
expected the lockdown” that followed her conversation with the warden.
Nonetheless, the district court, recognizing that its “understanding of the record may
be in error,” scheduled a telephonic hearing to allow Sanders “to explain any
misunderstanding the court may have and tell the court what evidence he intended
to present at trial to prove his claim.” During that hearing, Sanders confirmed the
court’s suspicion by stating he intended to argue that Collins violated his due
process rights when she asked the warden to enforce the no-contact order by
restricting his telephone access without first allowing him the opportunity to deny
violating the order. The district court then dismissed the suit, reasoning that
Sanders could not prove a constitutional violation because he lacked evidence that
Collins was involved in the decision to place him in segregation.

       On appeal, Sanders principally argues that the district court erred by failing
to give him “notice and an opportunity to respond” before dismissing on the ground
No. 05-1957                                                                     Page 3

that his claim against Collins could not succeed. That contention is untenable; even
if the court’s action can be construed as a sua sponte grant of summary judgment
that required notice and an opportunity for Sanders to respond, see Dawson v.
Newman, 419 F.3d 656, 660 (7th Cir. 2005); English v. Cowell, 10 F.3d 434, 437 (7th
Cir.1993), Sanders got both. Indeed the better characterization of the court’s action
is that it reconsidered the earlier denial of Collins’s motion for summary judgment,
so Sanders cannot possibly have been caught off guard when the court called upon
him to disclose the evidence he would use to prove that Collins participated in the
decision to send him to segregation.

       All that remains, then, is Sanders’s observation that during the telephonic
hearing he told the district court he received a letter from Collins in which she
admitted having “requested the Lake County Jail Warden to place him in the
lockdown section.” Sanders was not under oath when he disclosed the existence of
this purported letter, and he did not elaborate on when or why Collins sent it.
Neither had he alluded to it previously, not in his lengthy complaint or his own
motion for summary judgment, not in his response to Collins’s motion for summary
judgment, and certainly not in the final pretrial order the parties prepared and the
court approved two months before. Sanders, in fact, claimed that he no longer had
the letter and could not obtain it, and although secondary evidence may be
admissible to prove the contents of a writing that is lost or destroyed, see Fed. R.
Evid. 1004, the proponent must first establish that the writing truly cannot be
produced, see United States v. McGaughey, 977 F.2d 1067, 1071 (7th Cir. 1992).

       In this case, when the district court asked if Sanders had the letter, he simply
responded that “everything was taken” while he was at the Lake County Jail. He
did not assert that he tried to recover the letter or his other property, nor did he
maintain that he requested a copy or even asked Collins about the letter during
discovery. Sanders thus failed to offer any evidentiary support for his allegation
about the letter that could overcome a renewed motion for summary judgment. See
Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 996 (7th Cir. 2002) (“The mere
existence of an alleged factual dispute is not sufficient to defeat a summary
judgment motion. To successfully oppose the motion, the nonmovant must present
definite, competent evidence in rebuttal.”). Nor did he request additional time to
procure the necessary evidence, see Fed. R. Civ. P. 56(f), and even now he does not
explain what further steps he would have taken had the court given him additional
time. By the time of the telephonic hearing, his case was more than two-and-a-half
years old, and discovery had been closed for over a year. We cannot conclude, then,
that the district court abused its discretion by ruling on the record as it stood when
Sanders previously announced he was ready for trial.

      Accordingly, the judgment of the district court is AFFIRMED.
