# IVESTER v. SWEENY

> District Court, D. New Jersey · December 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10274566

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10274566

## How later opinions describe it (automated extraction)

- applying requirements of the PLRA in case involving violations of access to the courts and Sixth Amendment right to counsel
- holding that sending state authorities maintain responsibility for providing state legal materials to their prisoners incarcerated in out-of-state facilities
- finding that “prospective relief at issue was not narrowly drawn, it extends further than necessary, and it is not the least intrusive means necessary to correct the violation of Plaintiffs’ right of access to the courts”
- applying continuing violations doctrine where the Plaintiff alleged “systemic and excessive use of isolation cells at [the Iowa Juvenile Home]” and that she “spent numerous consecutive weeks in cemented small isolation cells”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MICHAEL IVESTER, :
:
Plaintiff, : Civ. No. 19-16559 (FLW) (DEA)
:
v. :
:
DONNA SWEENY et al., : OPINION
:
Defendant. :
_________________________________________ :

FREDA L. WOLFSON, Chief U.S.D.J.

Plaintiff, Michael Ivester (“Ivester” or “Plaintiff”), is proceeding pro se with an Amended
Complaint asserting violations of his civil rights under 42 U.S.C. § 1983. For the reasons
explained herein, the Court dismisses the Amended Complaint in its entirety pursuant to its
screening authority under 28 U.S.C. § 1915(e)(2)(B).
I. BACKGROUND AND PROCEDURAL HISTORY
a. The Amended Complaint
Ivester alleges that he is an Oregon resident serving a sentence imposed by the courts of
the State of Oregon, but he is presently incarcerated at New Jersey State Prison (“NJSP”), in
Trenton, New Jersey, under the Interstate Corrections Compact (“ICC”). See ECF No. 7,
Amended Complaint (“Am. Compl.”) at 2-3. Plaintiff has sued Defendants in New Jersey,
Oregon, and Iowa in connection with his efforts to challenge his Iowa conviction, which was
entered on or about December 3, 2015. See generally, Am. Compl.
Plaintiff alleges that although he has been transferred to prisons in different states, he has
been serving an Oregon state sentence throughout the relevant time periods set forth in his
Amended Complaint. Am. Compl. at 11. In November 2014, Ivester was transferred from
Oregon to a facility in Iowa, the Iowa Medical and Classification Center (“IMCC”). Id. at 14.
Ivester alleges that in November 2014 he “was accused of assaulting an inmate and a staff
member at the IMCC” and that he “was kept in solitary for approximately fif[]teen months while

awaiting the final disposition of his pending felony charges.” See id. Ivester contends that while
he was in solitary confinement, Greg Ort, Acting Deputy Warden at IMCC, directed corrections
officers to abuse and harass Plaintiff. Id. The abuse included name-calling, placing Plaintiff on
strip cell status, confiscating Plaintiff’s legal materials and clothes, denying Plaintiff, use of the
law library for research, denying telephone privileges, and destroying his incoming mail. Id. at
15. Defendant Ort allegedly instructed his subordinates to confiscate Plaintiff’s legal work and
research related to the felony charges in Iowa, and Plaintiff was unable to communicate with
attorney, and thus was unable to formulate a defense to the felony charges. Id. at 15-16.
Plaintiff was convicted of the Iowa charges and was sentenced on December 3, 2015.
Am. Compl. at 14, 16. Plaintiff alleges he was “unexpectedly” transferred to NJSP 80 days after

his sentencing on the Iowa charges. Id. at 14, 16, 17.
Plaintiff received a twenty-five year sentence on the Iowa charges. See id. at 16.
Plaintiff alleges that he would have received a lower sentence if he had the ability to conduct
legal research prior to and during his trial. Id. Plaintiff also alleges that he made “numerous
requests” to Greg Ort to appeal his Iowa sentence, but Ort would not let him contact his public
defender, conduct legal research, or provide him with the addresses of the court that imposed the
Iowa sentence. Id. Ort also allegedly instructed segregation housing officers not to provide
Plaintiff with paper or writing materials or his property, including legal materials. In the days
following his sentencing, Plaintiff
made numerous written and verbal requests to [Deputy Warden]
Greg Ort pleading for the opportunity to contact his public
defender, pleading for legal work containing the sentencing
court[’]s address and pleading for access to Iowa state law, case
law, forms and other related materials, and on every occasion Greg
Ort laughed at the plaintiff and told him “fuck you” and “go fuck
yourself.” Greg Ort told the plaintiff he would “never get shit.”

Id. at 16. Plaintiff alleges in his Amended Complaint that he intended to appeal his conviction
based on interference with his communication with his attorney and based on his inability to
possess his own legal work, which prevented him from formulating his defense.1 Id. at 17.
Ivester recounts that, after he was transferred to NJSP on or about February 20, 2016, he
began what he calls “a fruitless journey to gain access to Iowa state law and research assistance
with Iowa state law.” Id. at 17. Plaintiff contends he was denied “procedural protections”
guaranteed by the Fourteenth Amendment and that he has not been notified as to why he is being
denied the right to file a direct appeal, petition for postconviction relief, and/or a habeas petition.
Id. at 18. Upon his arrival at NJSP, Plaintiff began to ask “unit staff how to go about getting
case law, addresses to Iowa state courts, so that he may file his direct appeal.” Id. at 18. He
alleges that, despite his repeated requests to the law library, classification, and administrative
department, he has received no access to Iowa legal materials and was unable to determine who
is responsible for handling this type of request. Id. Plaintiff also alleges that he filed and
exhausted numerous grievances regarding the denial of Iowa legal materials. Id.
Plaintiff alleges that he received three responses to his requests from the NJSP law
library, but Plaintiff characterizes them as “nonsense.” Id. Unidentified law library personnel
told Plaintiff: “In order to secure Iowa case law, you should write to the Public Defender’s
Office in Iowa or write to Oregon requesting same.” Id. at 19. Although Plaintiff did not have an

1 In his prior Complaint, Plaintiff did not allege any facts about the issues he sought to raise on
direct appeal or in a petition for postconviction relief.
appointed attorney, law library personnel also told him that “Inmates are not allowed to give
anything to their attorneys for retention. You can send out what your attorney needs by way of
legal mail.” Id. at 19-20.
Plaintiff also alleges he wrote six letters to the Commissioner at NJSP, who is responsible
for promulgating policies and procedures at NJSP, but he received no response.2 See id. at 21.

After Plaintiff was unsuccessful obtaining assistance at NJSP, he allegedly sent out
numerous handwritten letters to K. Williams, the interstate compact coordinator in Oregon,
requesting access to Iowa state law and research about out of time appeals, but she failed to
respond. Id. at 20. Plaintiff also sent a letter to Karin Zeh, and the law librarian at Plaintiff’s
previous institution in Oregon, and also received no response. Id.
Plaintiff also sent 10 letters to Mike Brown, the Interstate Corrections Compact
Coordinator in Iowa, asking for Iowa state law, caselaw, and research material, but received no
response. See id. at 21. Plaintiff sent three letters to the law librarian at IMCC, and also
received no response. Id. at 21.

Plaintiff has sued Defendants in three states. In New Jersey, he has sued Donna
Sweeney, a Supervising Administrative Analyst, “who Plaintiff has been told to contact” about
obtaining an out of state transfer. See id. at 3. Plaintiff has also sued Glenda Striblings, title
unknown, who coordinates out of state transfers for New Jersey. Id. Plaintiff has also sued the
Bruce Davis, the Administrator of New Jersey State Prison, who is responsible for day-to-day
operations of the prison, Marcus O. Hicks, the Acting Commissioner for New Jersey State
Prison, who is responsible for ensuring that polices are followed by subordinates, including the

2 It is not clear if Plaintiff wrote to the current or former Commissioner or both.
Warden. Id. at 3-4. Plaintiff has sued Gary Lanigan, the prior Commissioner of New Jersey
State Prison as well.
In Oregon, Plaintiff has sued K. Williams, the Interstate Compact Coordinator for the
Oregon State Department of Corrections, who is responsible for interstate transfers, as well as

William’s supervisor Karen Zeh. Both Williams and Zeh allegedly failed to respond to
Plaintiff’s letters. Ivester has also sued Zeh’s supervisor, Greg Jones. Id. at 4-5. Plaintiff has
also sued John Doe Oregon Defendants, including the Director of the Oregon Department of
Corrections, and the wardens of Snake River Correctional Institution and East Oregon
Correctional Institution. Id. at 5.
In Iowa, Plaintiff has sued Greg Ort, the Deputy Warden of the Iowa Medical and
Classification Center, who was the Acting Warden at the time Plaintiff was housed there. See id.
at 6. As described above, Ort allegedly denied Plaintiff access to his attorney and research
materials during his trial and would not allow him to file an appeal.3 Plaintiff has also sued
Mike Brown, the Interstate Compact Coordinator for State of Iowa, who is responsible for

interstate transfers to and from Iowa Department of Corrections, See id. at 6. As described
above, Brown failed to respond to Plaintiff’s letters. Plaintiff has also sued John Doe Defendants
in Iowa, including the Director of Operations for the Iowa Department of Corrections and the
Warden of the Iowa Medical and Classification Center. Id.
Plaintiff has sued all Defendants in their official capacities for injunctive relief only. The
only relief Plaintiff seeks in his Amended Complaint is to be transferred to Iowa where he
believes he can access caselaw, legal research, and court information he needs to challenge his
2015 Iowa state conviction.

3 In his Complaint, Plaintiff alleges that the denial of access to the courts is a continuing
violation that warrants tolling of the statute of limitations. See id. at 22-23.
b. Procedural History
Ivester submitted his original Complaint for filing on or about July 16, 2019. ECF No. 1.
Complaint at 26. The Court dismissed the Complaint in its entirety pursuant to its screening
authority under 28 U.S.C. § 1915(e)(2)(B), and provided Plaintiff with leave to amend. ECF

Nos. 5-6. Plaintiff subsequently filed an Amended Complaint, ECF No. 7, which is subject to
screening by this Court.
II. STANDARD OF REVIEW
Under the Prison Litigation Reform Act, Pub. L. 104-134, §§ 801–810, 110 Stat. 1321-66
to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review prisoner complaints when the
prisoner is proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). The PLRA directs
district courts to sua sponte dismiss claims that are frivolous or malicious, that fail to state a
claim upon which relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). Whether a complaint fails to state a
claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to

dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). “‘At this early stage of the
litigation,’” the Court will accept the facts alleged in the pro se complaint as true, “‘draw[ ] all
reasonable inferences in [the plaintiff's] favor,’ and ‘ask only whether [that] complaint, liberally
construed, ... contains facts sufficient to state a plausible [ ] claim.’” Shorter v. United States, 12
F.4th 366, 374 (3d Cir. 2021) (first, third, and fourth alterations in original) (quoting Perez v.
Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations, however, do not
suffice. Iqbal, 556 U.S. at 678.
As Ivester is proceeding pro se, the Court construes his allegations liberally. Vogt v.
Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

244-45 (3d Cir. 2013)). “This means [courts] remain flexible, especially ‘when dealing with
imprisoned pro se litigants....’” Id. (quoting Mala, 704 F.3d at 244). The Court will “apply the
relevant legal principle even when the complaint has failed to name it.” Id. (quoting Mala, 704
F.3d at 244.) However, “pro se litigants still must allege sufficient facts in their complaints to
support a claim.” Id. (quoting Mala, 704 F.3d at 245).
III. DISCUSSION
a. Timeliness of Plaintiff’s Claims Against Greg Ort
The Court construes Plaintiff to assert Sixth Amendment claims of denial of access to his
attorney and First and Fourteenth Amendment claims of denial of access to the courts against
Greg Ort. This Court previously dismissed Plaintiff’s § 1983 claims against Greg Ort on the

basis of timeliness and first considers whether Plaintiff’s Amended Complaint cures the
deficiencies in his claims against this Defendant.
“Although the running of the statute of limitations is ordinarily an affirmative defense,
where that defense is obvious from the face of the complaint and no development of the record is
necessary, a court may dismiss a time-barred complaint sua sponte under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim.” Ostuni v. Wa Wa’s Mart, 532 F. App’x 110, 111–
12 (3d Cir. 2013); see also Hunterson v. Disabato, 244 F. App'x 455, 457 (3d Cir. 2007) (“[A]
district court may sua sponte dismiss a claim as time-barred under 28 U.S.C. § 1915A(b)(l)
where it is apparent from the complaint that the applicable statute of limitations has run.”).
The Court received Ivester’s Complaint on August 12, 2019, but, giving him the benefit
of the “prison mailbox rule,” see Houston v. Lack, 487 U.S. 266, 270–71 (1988),4 the Court
assumes that it may have been “filed” as early as July 16, 2019, the date Plaintiff signed the
Complaint. Thus, any claims subject to a two-year statute of limitations are facially untimely if

they accrued before July 16, 2017. Ivester was transferred from IMCC to NJSP in February
2016. As the Court explained in its prior opinion, any claims arising directly from his time in
Iowa appears facially untimely. The Court dismissed these claims as untimely and permitted
Plaintiff to raise arguments for tolling in his amended complaint.
The state statute of limitations and tolling rules generally govern § 1983 suits in federal
court. See Board of Regents v. Tomanio, 446 U.S. 478 (1980). “[A] § 1983 claim is governed by
the statute of limitations that applies to personal injury tort claims in the state in which such a
claim arises.” Kach v. Hose, 589 F.3d 626, 639 (3d Cir.2009). Additionally, a state’s tolling
principles also govern § 1983 claims when they do not conflict with federal law. Id. In Iowa,
there is a two-year limitations period that applies to personal injury claims and to § 1983 claims.

DeVries v. Driesen, 766 F.3d 922, 923 (2014). Here, because Greg Ort’s alleged misconduct
occurred entirely in Iowa, the Iowa two-year personal injury tort statute of limitations applies.
Wallace v. Kato, 549 U.S. 384, 387-88 (2007) (statute of limitations for personal-injury torts in
state where cause of action arose applies in § 1983 actions; § 1983 action accrues when plaintiff
has a complete and present cause of action); Iowa Code Ann. § 614.1 (Westlaw 2022).

4 In Houston v. Lack, 487 U.S. 266, the Supreme Court held that a document submitted to the
Court by a pro se prisoner litigant should be deemed filed not when stamped received by the
Clerk’s office, but instead “at the time [the prisoner] delivered it to the prison authorities for
forwarding to the court clerk.” Id. at 275–76. In this case, as Ivester dated each page of his
Complaint as July 16, 2019, I proceed on the assumption that this date also represents the earliest
possible time that the Complaint could have been given to prison authorities for mailing.
Although state law establishes the statute of limitations for § 1983 actions, federal law
controls the issue of when the statute of limitations begins to run. Wallace, 549 U.S. at 388. The
standard rule is that accrual occurs when the plaintiff has a complete and present cause of action,
that is, when the plaintiff can file suit and obtain relief. Id. Under that rule, the tort cause of

action accrues, and the statute of limitations commences to run, when the plaintiff knew or
should have known of the injury that forms the basis of the claim. Id. at 391; see also
Wisniewski v. Fisher, 857 F.3d 152, 157–58 (3d Cir. 2017); Sameric Corp. of Del. v. City of
Phila., 142 F.3d 582, 599 (3d Cir. 1998).
In his Amended Complaint, Plaintiff alleges that his denial of access to the courts began
in Iowa where Defendant Ort denied him access to his counsel during his criminal trial and
denied him the ability to file an appeal of his criminal conviction during the 80 day period after
he was sentenced on December 3, 2015. Plaintiff was transferred to New Jersey on or about
February 20, 2016. Plaintiff contends that New Jersey officials continued to deny him access to
the courts by failing to respond to his inquiries about filing an appeal and suggesting that he

contact Oregon and/or the Iowa Public Defender to access Iowa caselaw and research materials.
Plaintiff also alleges that he wrote numerous letters to the Oregon Defendants, but they failed to
respond.
Here, Plaintiff attempts to frame his access to the courts claim as a continuing violation to
avoid the statute of limitations as to his claims against Greg Ort. The Eighth Circuit has applied
the continuing violations doctrine under limited circumstances to § 1983 claims for Eighth
Amendment violations. See Montin v. Estate of Johnson, 636 F.3d 409, 416 (8th Cir. 2011)
(continuing violation could be found when plaintiff alleged that he “suffer[ed] daily and
unconstitutional restrictions on his liberty of movement”); Turner v. Palmer, 84 F.Supp.3d 880,
886 (S.D. Iowa, 2015) (applying continuing violations doctrine where the Plaintiff alleged
“systemic and excessive use of isolation cells at [the Iowa Juvenile Home]” and that she “spent
numerous consecutive weeks in cemented small isolation cells”). As explained by the Eighth
Circuit, the continuing violation may apply where “it is appropriate to describe each new day

under an objected-to policy as comprising a new or continuing violation of rights, as in the
context of an Eighth Amendment claim for cruel or unusual punishment or a discrimination
claim alleging ongoing implementation of a discriminatory wage scheme.” Montin, 636 F.3d at
415.
The Third Circuit has also applied continuing violation under similar circumstances. “To
allege a continuing violation, the plaintiff must show that all acts which constitute the claim are
part of the same unlawful ... practice and that at least one act falls within the applicable
limitations period.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165–66 (3d Cir. 2013)
(citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)). “[W]hen a defendant’s
conduct is part of a continuing practice, an action is timely so long as the last act evidencing the

continuing practice falls within the limitations period; in such an instance, the court will grant
relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514,
United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991); see also
Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001).
The Third Circuit has identified at least three factors relevant to analyzing a continuing
violation claim:
(1) subject matter-whether the violations constitute the same type
of discrimination, tending to connect them in a continuing
violation; (2) frequency-whether the acts are recurring or more in
the nature of isolated incidents; and (3) degree of permanence-
whether the act had a degree of permanence which should trigger
the plaintiff's awareness of and duty to assert his/her rights and
whether the consequences of the act would continue even in the
absence of a continuing intent to discriminate.
Cowell, 263 F.3d at 292. It is well-established that the continuing violation doctrine does not
apply, however, when the plaintiff “is aware of the injury at the time it occurred.” Montanez v.
Secretary Pennsylvania Dept. of Corrections, 773 F.3d 472, 481 (3d Cir. 2014)) (finding that
Montañez was aware of the relevant injury—the government seizure of funds from his inmate
account—very shortly after it occurred but failed to assert his rights in a timely fashion).
Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n. 6 (3d
Cir. 2003)
Here, Plaintiff was aware that 1) Defendant Ort denied him access to his attorney during
his trial and 2) denied him the right to appeal at the time those wrongs occurred. Eighty days
later, Ivester was transferred to New Jersey, and Plaintiff provides no reasons why he could not
have initiated his access to the courts lawsuit prior to the expiration of the two-year statute of

limitations, even if the Court calculates that period of time from the date of his transfer, i.e.,
February 2016. Instead, for over 40 months, Plaintiff delayed filing his access to the courts
claims in an apparently fruitless effort to obtain Iowa case law and research materials.
Put another way, Defendant Greg Ort’s actions in actively and intentionally denying
Plaintiff access to his attorney and denying him the ability to file his direct appeal after his
sentencing “had a degree of permanence which should trigger [plaintiff’s] awareness of and duty
to assert his[ ] rights.” Wisniewski v. Fisher, 857 F.3d at 158 (3d Cir. 2017) (finding that
continuing violations doctrine did not apply to inmate’s § 1983 First Amendment retaliation
claim against employees and officials at correctional institution where he was housed) (citing

Cowell, 263 F.3d at 292). Here, the Court finds that neither the Eighth Circuit nor the Third
Circuit would apply the continuing violations doctrine to toll Plaintiff’s limitations period on the
claims against Defendant Ort beyond February 20, 2016, the date of his transfer to NJSP.
Because Plaintiff needed to file his § 1983 claims against Ort by February 2018, his claims
against Defendant Ort for denial of access to his attorney and to the courts are dismissed with
prejudice as untimely.

b. Access to the Courts Claims against the remaining New Jersey, Oregon, and
Iowa Defendants
Plaintiff also seeks to bring First and Fourteenth Amendment access to the courts claim
against New Jersey, Oregon, and Iowa Defendants for failing to provide him with Iowa caselaw,
legal research, and court addresses so he could file a direct appeal or a PCR petition challenging
his Iowa conviction.
The court notes that Plaintiff has sued the New Jersey, Iowa, and Oregon Defendants in
their official capacities for prospective injunctive relief.5 The only relief Ivester seeks is to have
Defendants transfer him to Iowa, purportedly so he can have access to Iowa legal materials and
court addresses. It is well established that an inmate has a constitutional right of meaningful
access to the courts, which incorporates a right of access to legal reference materials. Lewis v.
Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821–28 (1977). The
constitutional right of access to the courts arises from the Petition Clause of the First

5 A claim against a public officer in her or his official capacity is essentially a claim against the
governmental entity that employs the official. See Kentucky v. Graham, 473 U.S. 159, 165–66
(1985). Because a suit against a state official is in essence a suit against the state, Eleventh
Amendment sovereign immunity also protects state employees from suit in federal court, subject
to a narrow exception. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010).
The Eleventh Amendment is no bar to “federal jurisdiction over a suit against a state official
when that suit seeks only prospective injunctive relief in order to end a continuing violation of
federal law.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996); see also Ex parte
Young, 209 U.S. 123, 159–60 (1908). Although claims seeking prospective injunctive relief are
permitted, claims that act as a remedy for past violations are barred under the Eleventh
Amendment. Seminole Tribe, 517 U.S. at 73.
Amendment, as well as the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); McDonald v. Smith, 472
U.S. 479, 482–85 (1985); Procunier v. Martinez, 416 U.S. 396, 419 (1974), overruled on other
grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). Ivester invokes both the First and

Fourteenth Amendments as the bases for his access-to-the-courts claim.
For prisoners, meaningful access to the courts “requires prison authorities to assist
inmates in the preparation and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith,
430 U.S. 817 (1977), overruled on other grounds by Lewis v. Casey, 518 U.S. 343, 354 (1996).
Prisoners may only proceed on access-to-courts claims in two types of cases, challenges (direct
or collateral) to their sentences and conditions of confinement. Lewis, 518 U.S. at 354–55.
There are two general categories of claims of denial of access to the courts. See
Christopher v. Harbury, 536 U.S. 403, 413 (2002). The first category is forward-looking claims
which are prospective in nature. Id. The essence of this category of cases is that official action

is frustrating the plaintiff in preparing or filing suit at the present time. Id. The opportunity to
litigate “has not been lost for all time, however, but only in the short term; the object of the
denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a
position to pursue a separate claim for relief once the frustrating condition has been removed.”
Id. The second category is backward-looking claims which are retrospective in nature. Id. at
413-14. These cases do not look forward to future litigation, “but backward to a time when
specific litigation ended poorly, or could not have commenced, or could have produced a remedy
subsequently unobtainable.” Id. at 414 (footnotes omitted). “The ultimate object of these sorts
of access claims, then, is not the judgment in a further lawsuit, but simply the judgment in the
access claim itself, in providing relief obtainable in no other suit in the future.” Id.
The ultimate justification for recognizing each kind of access claim is the same. Id.
“Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity

already lost, the very point of recognizing any access claim is to provide some effective
vindication for a separate and distinct right to seek judicial relief for some wrong.” Id. at 414-15.
The right of access to the courts “is ancillary to the underlying claim, without which a plaintiff
cannot have suffered injury by being shut out of court.” Id. at 415. To state such a claim, a
plaintiff must describe the underlying, predicate claim “well enough to show that it is ‘more than
mere hope’” and must identify the lost remedy. Id. at 205–06 (quoting Christopher v. Harbury,
536 U.S. 403, 416–17 (2002)). A plaintiff must further show that there is no possible remedy for
the claimed harm other than through an access-to-the-courts claim. Christopher, 536 U.S. at 415
(2002); Monroe, 536 F.3d at 205–06. Therefore, a plaintiff must allege an actual injury by
identifying a nonfrivolous, arguable underlying claim blocked or lost by the alleged denial of

access to the courts. Id. To that end, prisoners must satisfy certain pleading requirements: The
complaint must describe the underlying arguable claim well enough to show that it is “more than
mere hope,” and it must describe the “lost remedy.” See id. at 416–17.
In his Amended Complaint, Plaintiff alleges what appears to be a forward-looking access
to the courts claim to remove an impediment to his filing of a direct or collateral appeal.6 The
Court previously found that Ivester’s original Complaint failed to state an access-to-the-courts
claim because he did not specifically identify a nonfrivolous claim he has been prevented from

6 The Court makes no determination about whether the Iowa courts would accept Plaintiff’s out
of time direct or collateral appeal of his Iowa conviction.
raising or a remedy he has lost. In his Amended Complaint, Plaintiff alleges that he has been
denied his right to bring nonfrivolous direct and/or collateral appeal of his Iowa conviction and
adds the following allegations about this claim:
An access-to-the-courts claim is the plaintiffs [sic] only possible
avenue for obtaining relief, as without the courts [sic] intervention,
the plaintiff will forever be denied the ability to seek relief on
direct appeal or in a postconviction relief proceeding based on
interference with his communications with his defense counsel,
and based on Plaintiff’s inability to possess his own legal work
pertaining to the felony charges that Plaintiff was accused of in
Iowa. Plaintiff was not allowed to speak to his attorney, nor
formulate his own defense, as he couldn’t even read what he was
accused of or research Iowa state law. A state Plaintiff has never
lived in or knows anything about.
Plaintiff alleges that he will be unable to bring this challenge to his Iowa conviction unless the
Court issues an injunction directing the New Jersey, Iowa, and Oregon Defendants to transfer
Ivester to Iowa where he can access Iowa legal materials and court addresses.
As explained below, even assuming that Plaintiff has identified a nonfrivolous claim, his
sole claim for injunctive relief fails as to the New Jersey and Iowa Defendants because they have
no authority under the ICC to transfer Plaintiff to Iowa. It well established that if the defendants
have no power to redress the alleged injuries even if the court were to grant the requested relief,
the plaintiff has no case or controversy against those particular defendants. See Scott v.
DiGuglielmo, 615 F. Supp.2d 368, 374 (E.D. Pa. 2009) (dismissing claims against prison
administrators because “they have no way of complying with the requested injunction, if
granted”) (citing Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir.2001); see also Snyder v.
Millersville Univ., No. 07–1660, 2008 WL 5093140, at *12 (E.D. Pa. Dec. 3, 2008) (“In
proceeding instead only against individuals who do not have the authority to afford her the
desired relief, however, Plaintiff’s request for a mandatory injunction necessarily fails.”);
Williams v. Doyle, 494 F.Supp.2d 1019, 1024 (W.D. Wis. 2007) (“[A] claim for injunctive relief
can stand only against someone who has the authority to grant it.”).
Here, Plaintiff is confined at New Jersey State Prison pursuant to the ICC, under which a
prisoner convicted in one state, the “sending” state, may be confined in another state, the

“receiving” state. See N.J.S.A. § 30:7C–1 et seq. The ICC is an agreement between states,
enacted by statute in each participating state, that authorizes the transfer of one State’s prisoner
to another State's prison. See, e.g., N.J.S.A. 30:7C–1 through–12. “The purpose of this compact
is to provide for the mutual development and execution of such programs of cooperation for the
confinement, treatment and rehabilitation of offenders with the most economical use of human
and material resources.” N.J.S.A. 30:7C–2. Under the ICC, the receiving state, here, New
Jersey, acts “solely as agent” for the sending state, and inmates remain “subject to the
jurisdiction of the sending state,” which may transfer such inmates at any time. See ICC, Article
IV(a), (c); N.J.S.A. § 30:7C–5(a), (c).
Indeed, as explained by the Oregon Supreme Court in Barrett v. Peters, 383 P.3d 813,

820, 360 Or. 445, 457 (Or. 2016),
a transferred inmate remains “subject to the jurisdiction of the
sending state.” ORS 421.245, Art IV, § 3. At any time, the sending
state may remove the transferred inmate from the receiving state.”
Id. Thus, although a transferred inmate is in the physical custody
of the receiving state, the sending state retains sole authority to
remove petitioner from the conditions about which he complains.
Id. (emphasis added) (finding that Oregon officials were the proper custodians in a state habeas
petition filed by an Oregon prisoner housed in Florida under the ICC).
In addition to the Oregon Defendants, Plaintiff has sued New Jersey and Iowa prison
officials who allegedly coordinate out of state transfers, as well as the current and former
Administrators of New Jersey State Prison and the Iowa, but neither the New Jersey nor the Iowa
Defendants are authorized to transfer Plaintiff to Iowa under the ICC, as Oregon has the sole
authority to transfer Plaintiff under the ICC. Because the New Jersey and Iowa Defendants,
acting in their official capacities, are unable to provide the only relief Plaintiff seeks, the Court
dismisses the Amended Complaint and Plaintiff’s claims for injunctive relief against the New

Jersey and Iowa Defendants.
As explained above, only the Oregon Defendants responsible for interstate transfers are
authorized to transfer Plaintiff to Iowa under the ICC.7 Plaintiff’s Complaint against the
remaining Oregon Defendants faces a significant hurdle, however, because he is seeking only
prospective and preliminary injunctive relief.8 Because Plaintiff is a prisoner subject to the
PLRA, any prospective injunctive relief provided must meet specific requirements. Specifically,
under the PLRA, a district court cannot “grant or approve any prospective relief” respecting
prison conditions “unless the court finds that such relief is narrowly drawn, extends no further
than necessary to correct the violation of the Federal right, and is the least intrusive means
necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A); see also 18

7 The Court does not dismiss the Oregon Defendants for lack of personal involvement, as
Plaintiff need not allege that the Oregon Defendants actively participated in the wrongful denial
of Iowa legal materials because he seeks only injunctive relief on his access to the courts claims.
See, e.g., Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016) (“Our conclusion that the State
Defendants lacked personal involvement in past constitutional violations does not preclude
[plaintiff’s] from obtaining prospective injunctive relief for ongoing violations.”).
8 Plaintiff also seeks preliminary injunctive relief. “A plaintiff seeking a preliminary injunction
must establish [ (1) ] that he is likely to succeed on the merits, [ (2) ] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [ (3) ] that the balance of equities tips in his
favor, and [ (4) ] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). Moreover, under the PLRA preliminary injunctive relief also
automatically expires “90 days after its entry, unless the court makes the findings required under
subsection (a)(1) ... and makes the order final....” 18 U.S.C. § 3626(a)(2); Victory v. Berks Cnty.,
789 F. App’x. 328, 332–33 (3d Cir. 2019). The Court need not separately address the
preliminary injunctive relief standard as it finds that Plaintiff’s request for prospective and
preliminary injunctive relief fail under the PLRA.
U.S.C. § 3626(a)(2) (same standard applies to requests for preliminary injunctive relief). Courts
have applied this provision of the PLRA in the context of access to the courts claims. See, e.g.,
Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir. 2001) (applying requirements of the PLRA in
case involving violations of access to the courts and Sixth Amendment right to counsel); Martin

v. Ellandson, 122 F. Supp.2d 1017, 1024 (S.D. Iowa 2000) (finding that “prospective relief at
issue was not narrowly drawn, it extends further than necessary, and it is not the least intrusive
means necessary to correct the violation of Plaintiffs’ right of access to the courts”).
Here, even if the Court has jurisdiction over the Oregon Defendants, which is very
doubtful, it could not order them to provide the prospective injunctive relief that Plaintiff seeks,
i.e., a transfer from New Jersey to Iowa, because this form of relief is not narrowly tailored to
correct the alleged violation of Plaintiff’s rights, i.e., the denial of Iowa legal materials and Iowa
court information, and is certainly not the least intrusive method of correcting the alleged
violation of Plaintiff’s right to access to the courts.9 Therefore, the Court also dismisses
Plaintiff’s access to the courts claim seeking prospective and preliminary injunctive relief against

the remaining Oregon Defendants.
In light of his pro se status, the Court will provide Plaintiff with 30 days to submit a
Second Amended Complaint with respect to his claim for injunctive relief against the Oregon
Defendants if he wishes to seek a narrower form of relief.10 If Plaintiff submits an Amended

9 Although Plaintiff has chosen to file a federal suit, the Court also notes that there may be other
relief available to Plaintiff in the state courts of Oregon. In Barrett v. Peters, 360 Or. at 449,
cited supra, the Oregon Supreme Court held that inmates incarcerated outside of Oregon as the
result of transfer under the ICC who allege violations of their constitutional rights are entitled to
seek a writ of habeas corpus under the Oregon habeas corpus statute. Or. Rev. Stat. §§ 34.310,
421.245.
10 The Court denies leave to amend as to the New Jersey and Iowa Defendants. Even if Plaintiff
had sought access to Iowa legal materials in the instant suit, it appears that Oregon officials
would be responsible for providing those materials to him. Both the Ninth and Tenth Circuits
Complaint against the Oregon Defendants, the Court will consider whether it should sua sponte
transfer this matter to the United States District Court for the District of Oregon. See, e.g., Jolly
v. Mitchel, NO. 19-CV-22082019 WL 2268972, at *3 (E.D. Pa. May 24, 2019) (considering
venue sua sponte after dismissing certain claims pursuant to 28 U.S.C. § 1915(e) and finding that

the remaining claims should be transferred to the Northern District of New York).
IV. CONCLUSION
For the reasons explained herein, the Court dismisses the Sixth, First, and Fourteenth
Amendment access to the courts claims against Greg Ort as untimely. The Court also dismisses
the First and Fourteenth Amendment claims for prospective and preliminary injunctive relief
against the New Jersey and Iowa Defendants because they have no authority to transfer Plaintiff
to Iowa under the ICC. Finally, the Court dismisses the First and Fourteenth Amendment claims
for prospective and preliminary injunctive relief against the remaining Oregon Defendants
because the requested relief is not narrowly tailored or the least intrusive means of remedying the
alleged violations of Plaintiff’s rights, as required by the PLRA. The Court will mark this matter

as closed and permit Plaintiff to submit a Second Amended Complaint against the Oregon

have held that “[i]n the context of denial of access claims, the general rule imposes upon the
sending state authorities the responsibility for ensuring their prisoners incarcerated in sister state
facilities are afforded access to state courts.” Trujillo v. Williams, 465 F.3d 1210, 1226 (10th Cir.
2006) (citing Clayton v. Tansy, 26 F.3d 980, 982 (10th Cir. 1993)); see also Boyd v. Wood, 52
F.3d 820, 821 (9th Cir. 1995) (holding that sending state authorities maintain responsibility for
providing state legal materials to their prisoners incarcerated in out-of-state facilities). Courts in
this district have similarly found that the sending state is primarily responsible for providing
legal materials to challenge a conviction in the sending state. See, e.g., Pellegrini v. Kobus, No.
Civ.A.96–410–GMS, 2000 WL 1876481, at *1-2 (D. Del. Dec. 11, 2000) (finding that California
was primarily responsible for assisting a California state prisoner who was transferred to a
Delaware state prison pursuant to ICC and that Delaware officials merely bore a responsibility to
assist plaintiff in communicating with California officials and to refrain from impeding his
receipt of legal material from California). Plaintiff’s situation is somewhat unique because he is
not challenging an Oregon conviction, but he is nevertheless an Oregon prisoner seeking access
to legal materials to challenge a state conviction.
Defendants within 30 days if he wishes to seek a narrower form of prospective injunctive relief.
An appropriate Order follows.

s/Freda L. Wolfson
FREDA L. WOLFSON
U.S. Chief District Judge
DATED: December 16th, 2022.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274566. Public record. Not legal advice.