The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROLAND PRICE,
Plaintiff,
v. Case No. 15-cv-774-pp
PHILLIP FRIEDRICH,
Defendant.
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 62) AND DISMISSING CASE
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint under 42 U.S.C. §1983, alleging that the defendant violated his
civil rights. Dkt. No. 1. The court screened his third amended complaint, dkt.
no. 28, on August 7, 2017 and allowed him to proceed with two First
Amendment claims alleging (1) that the defendant seized legal materials from
him in retaliation for filing inmate grievances and (2) that the defendant’s
seizure of the legal materials denied him access to the courts. Dkt. No. 29 at 4-
5.
On July 16, 2018, the court granted the defendant’s motion for partial
summary judgment and dismissed the retaliation claim. Dkt. No. 57. The
defendant since has filed a motion for summary judgment on the plaintiff’s
access-to-the-courts claim. Dkt. No. 34. The court will grant that motion and
dismiss the case.
I. FACTS1
During the events described in the third amended complaint, the plaintiff
was an inmate at the Wisconsin Secure Program Facility (“WSPF”). Dkt. No. 64,
¶1. The defendant was a “Restrictive Housing Property Officer in the Property
Department” at WSPF. Id. at ¶2.
A. The Plaintiff’s Legal Materials
On December 14, 2010, the plaintiff was placed in Temporary Lock up
(“TLU”) (which is in the Restrictive Housing Unit, or RHU) while Captain
Lebbeus Brown (no longer a defendant) conducted an investigation into
whether the plaintiff had “made arrangements” to help another inmate with
legal work, at a cost of $800. Id. at ¶5. The defendant attests that making such
arrangements violated the “rule of Enterprises and Fraud under Wis. Admin.
Code §DOC 303.32.”2 Dkt. No. 65 at ¶5. Because the property allowed an
inmate in the RHU is limited, staff pack up, search and inventory the property
of inmates coming into the RHU from general population. Dkt. No. 64 at ¶6.
Officer “Brown-Lucas”—presumably the same officer Brown who was
conducting the investigation that landed the plaintiff in TLU—inventoried the
plaintiff’s property twice—once on December 13, 2010 (the day before the
plaintiff went into TLU) and again on December 15, 2010 (the day after the
plaintiff went into TLU). Id. at ¶8. In connection with the two inventories,
1 Among the documents the court considered in compiling the facts is the
plaintiff’s third amended complaint, dkt. no. 28, which the court must construe
as an affidavit at the summary judgment stage. (Ford v. Wilson, 90 F.3d 245,
246-47 (7th Cir. 1996)).
2 Perhaps the administrative code numbers have changed in recent years; the
court’s research indicates that the Enterprises and Fraud provision of the
administrative code is §DOC 303.36. Subsection (1) of that policy prohibits
inmates from engaging in businesses or enterprises or selling anything that
isn’t allowed by the administrative code.
Brown-Lucas filled out three forms—an Allowable Property List dated
December 13, 2010; an Allowable Property List dated December 15, 2013, and
a “Property Inventory—Male” form dated December 15, 2010. Id. Brown-Lucas
filled out these forms to “make sure all of [the plaintiff’s] property that he
possessed at the time he was being place in [TLU] was accounted for.” Id. at ¶9.
The defendant did not have any part in packing, sorting or inventorying the
plaintiff’s property during his placement in TLU. Id. at ¶16.
The December 13, 2010 Allowable Property List indicated that the
plaintiff had been approved to have basic hygiene items (including deodorant, a
comb, lip balm, shower shoes, soap and nail clippers) and one pad of paper.
Dkt. No. 65-3 at 1. The plaintiff’s signature and printed name, along with the
date “12-13-10,” appear at the bottom of the form. Id.
The December 15, 2010 Allowable Property List approved additional
items for the plaintiff, including prescription glasses, prescription medications,
“ALL Legal materials & miscellaneous papers—limit one 20 x 20 x 20 box,” two
pads of paper and three legal-size manila envelopes.3 Dkt. No. 65-3 at 2. The
plaintiff signed this form, dating it “12-15-10.” Dkt. No. 65-3 at 2.
The defendant explains that inmates in the RHU may have their legal
materials. Dkt. No. 64 at ¶11. An inmate with an active case may keep as many
legal materials as fit in a 20x20x20 inch box. Id. If the inmate has more legal
materials than will fit in a box that size, staff members allow him to sort
through the materials and decide which ones he wants to keep in the cell with
him; “[t]he remainder will be destroyed or sent out at the inmate’s expense,
unless it is legal material that pertains to an active case.” Id. at ¶12. If the
3 According to the defendant, any non-allowed property the plaintiff had at the
time he was placed in TLU would have been stored in the property room until
the plaintiff was moved back to general population. Dkt. No. 64 at ¶15.
excess material relates to an active case, the inmate must ask the warden for
permission to store the excess materials short-term. Id. If the warden approves
the short-term storage, the prison stores the excess materials in the property
warehouse and gives the inmate a property receipt. Id. at ¶13. The defendant
indicates that there is “no record of excess materials being stored” for the
plaintiff. Id.
After the investigation into the alleged $800 legal work arrangements was
completed, the plaintiff received a conduct report for Enterprises and Fraud. Id.
at ¶17. On January 25, 2011, a hearing officer found the plaintiff guilty of
“enterprises and fraud.” Id. at ¶¶17-18. The officer imposed a disposition of
120 days of “disciplinary separation.” Id. As a result, the plaintiff remained in
RHU until May 25, 2011. Id. at ¶¶18, 20. The defendant did not play any role
in investigating the plaintiff’s conduct, in issuing the conduct report or in the
hearing. Id. at ¶19.
On May 25, 2011, the plaintiff was released from RHU, and the
defendant and Correctional Officer Bast (not a defendant) sorted and
inventoried the plaintiff’s property so that he could move back to general
population. Id. at ¶20; see also Dkt. No. 65-6. This was the first time the
defendant became involved with the plaintiff’s property. Dkt. No. 64 at ¶21. The
officers completed a property inventory, which they signed and dated May 25,
2011. Dkt. No. 65-6. The plaintiff also signed the inventory form. Id. The form
indicates that the plaintiff received “Legal Material,” miscellaneous
papers/letters and seventeen three-ring binders. Id. at 2. The defendant says
that he didn’t sort through or inventory the individual legal papers. Dkt. No. 64
at ¶23. The plaintiff claims in his declaration opposing summary judgment that
there were twenty-four binders, and that Brown had not properly recorded
them. Dkt. No. 75 at ¶¶7-8.
According to the defendant, he and his fellow officer found that the
following items were “damaged” or “altered”: a Complete Bible Handbook, a
Keyword Bible, an Orthodox Study Bible, Bible maps and charts,
Dictionary/Thesaurus, Dipole antenna, two folders, miscellaneous magazine
cut-outs “that were taped together,” and seven photos. Dkt. No. 64 at ¶24. The
defendant asserts that these items “had been covered with tape.” Id. at ¶25. It’s
against the prison rules to cover items with tape—that’s considered “altering”
property—and the defendant says he wasn’t aware of anyone giving the plaintiff
permission to put tape on the property. Id. at ¶¶26-28.
The defendant says that as to the two folders (covered with tape), the
officers confiscated only the folders themselves—he says that if there had been
papers or legal documents in the folders, he would have removed those and
given them to the plaintiff. Id. at ¶29. The plaintiff has declared “[u]pon
information and belief” that the properties taken “included legal properties.”
Dkt. No. 75 at ¶8.
The defendant says he also found several items “in excess of the allowed
property limits”: seven socks, a t-shirt, three pairs of underwear, “coax”
(coaxial cable), three pairs of “sweatbands,” one soap dish, and thirty
photographs. Id. at ¶30. The defendant confiscated these items and listed them
on a “Property Receipt/Disposition” form; the plaintiff signed and dated the
form, and it bears notes made either by the plaintiff or the defendant saying
what the plaintiff wanted prison staff to do with the items (such as destroy
them or mail them). Id. at ¶31; Dkt. No. 65-6.
The plaintiff stated in the third amended complaint in this case that the
defendant violated his right “to ownership of legal property primarily his [legal
properties].” Dkt. No. 28 at ¶7 (brackets in original). The plaintiff alleged that
his property “was seized.” Id. He says that when he was being released from
segregation, the defendant declared the plaintiff’s property to be contraband
“[s]imply and entirely based on clear scotch tape being used on it.” Id. at ¶8.
The plaintiff asserts that he had “authorized authority to the uses of scotch
tape to affix mandatory name tags for identification purposes.” Id. He says the
tape was used for “basic normal uses of scotch tape.” Id. The plaintiff says that
he “pleaded” with the defendant “that the scotch tape was a normal authorized
property item sold through canteen,” and that his use of the tape “[was] not
any security risk nor unauthorized.” Id. at ¶10. He says that despite his pleas,
the defendant was “furious argumentative and aggressive.” Id. The plaintiff
asserts that the defendant did not issue him a conduct report for contraband.
Dkt. No. 28 at ¶11.
The defendant explains that the confiscated property was held in the
property room to give the plaintiff an opportunity to decide what he wanted
done with it (or to file a grievance). Dkt. No. 64 at ¶32. He says he did not take
or retain any legal materials or transcripts from the plaintiff—if he had, he
would have noted that on the Property Receipt/Disposition form. Id. at ¶34.
The next month, in June 2011, the plaintiff filed five inmate grievances
regarding issues with his property. See Dkt. No. 40-1 at 4. The plaintiff
complained that certain items should not have been confiscated (such as his
Bible and rosary), that he was missing legal transcripts, and that he thought
the defendant was going to dispose of his property before he could exhaust
administrative remedies to the corrections complaint examiner (“CCE”). Id.
Because these grievances were pending, the property room held all the
plaintiff’s confiscated items and didn’t destroy or mail out any of the plaintiff’s
property at that time. See Dkt. No. 64 at ¶37.
On June 16, 2011, Institution Complaint Examiner (“ICE”) Kelly Trumm
contacted the defendant regarding the plaintiff’s inmate grievance about his
missing legal transcripts. Id. at ¶38. The defendant says that he searched the
property room and didn’t find any legal transcripts or legal materials. Id. at
¶39. The defendant reiterated in his findings of fact that he didn’t hold any
legal materials or transcripts from the plaintiff’s property. Id. at ¶40. The
defendant maintains that he confiscated only the property that was noted on
the Property Receipt/Disposition form. Id. at ¶¶32, 40.
On June 22, 2011, the plaintiff sent the defendant an
Interview/Information Request stating that he received a decision on his
inmate grievances and that he had until June 27, 2011 to make arrangements
for his property. Id. at ¶41; Dkt. No. 65-9 at 1. The plaintiff also submitted a
disbursement request for money to pay for mailing the items, indicating that
the property should be sent to his mother, Helen Price, and giving her address.
Dkt. No. 64 at ¶42; Dkt. No. 65-9 at 2. The defendant read the address as
“2482 W Aver Ave.” Dkt. No. 65 at ¶45. The defendant says that, using “Spee-
Dee delivery services,” he shipped the plaintiff’s property to the address the
plaintiff had provided. Id. at ¶46. He states, however, that around July 14,
2011, the package was returned by Spee-Dee delivery with an indication that
the address was incorrect. Id. The defendant says he notified the plaintiff that
the property had been returned. Id. The property went back to the property
room. Id. at ¶47.
The plaintiff avers that the defendant wrote down the incorrect address
on the Spee-Dee delivery slip. Dkt. No. 75 at ¶22. The plaintiff says that he had
his mother call the defendant because his mother hadn’t yet received the
property. Dkt. No. 28 at ¶12. The plaintiff asserts that his mother told the
defendant that her address had been the same for more than fifty years and
that she’d not received any property. Id. The plaintiff states that the defendant
specified (whether to the plaintiff or the plaintiff’s mother is not clear) that the
defendant had used Spee-Dee and that “a receipt signed by him Spee-Dee
provide that they were unable to deliver the property.” Id. The plaintiff says
that he asked for a copy of the receipt, but that “no signature appears on it at
all of [the defendant],” and that the defendant “again is willfully and
intentionally telling a ball-face-lie and using the DOC in protection of that lie.”
Id.; Dkt. No. 75 at ¶23.
The defendant provided with his summary judgment materials what
appears to be a copy of the Spee-Dee receipt, bearing a red sticker that says,
“Return to Shipper.” Dkt. No. 65-10. There is an asterisk between the words
“Incomplete Address” and “Incorrect Address” as the reason given for the
return. There are three sets of handwritten notes on the document. One
notation says, “I/m notified 7∙14∙11 By CO Friedrich at cell front.” Id. It
appears to bear the defendant’s signature next to the date 7-14-11. Another
notation appears next to the “Ship To” address. It says, “Talked to 8-4-11,” and
bears an arrow pointing to the defendant’s mother’s name, Helen Price.
Beneath the “2482 W. Aver Ave.” address are the words “Auer Ave.” Id. The
final notation says, “Given a new request on 8-5-11.” Id.
The defendant says that on August 4, 2011, he spoke with the plaintiff’s
mother, who gave him the correct mailing address. Dkt. No. 64 at ¶45. When
the plaintiff got a new disbursement request the next day—August 5, 2011—he
didn’t have enough money in his account to cover the cost of mailing the
package. Id. at ¶46. The defendant held on to the plaintiff’s property until
September 14, 2011, waiting for the plaintiff to submit payment for mailing the
items to his mother; the defendant checked the plaintiff’s account five times
during that period, to see if he had accrued the money. Id. at ¶¶47-48. By
September 14, 2011, the plaintiff still didn’t have enough money, so the
property was destroyed. Id. at ¶48. The defendant says the property was
destroyed because “there was simply not enough room to store property
indefinitely.” Id. at ¶49. The defendant maintains that he destroyed only the
property listed on the Property Receipt/Disposition form. Id. at ¶50. He states
that he didn’t destroy any legal transcripts or other legal materials. Id.
The plaintiff asserts that “[o]n or about *09/14/11* and once more on
*5/31/12*. [the defendant] straightforwardly stated [the plaintiff’s] property to
be contraband and he acted retributively about his resolution while under the
color of state law to punish [the plaintiff].” Dkt. No. 28 at ¶9. The plaintiff
claims that the defendant “committed the ungodly act of theft . . . and
destruction of [the plaintiff’s] vital property,” and that he “knowingly and
willingly demolished and trashed [the plaintiff’s] property inorder to carry out
his cruel bigoted deed to stop [the plaintiff] of filing complaints and to stop any
legal action what so ever by [the plaintiff].” Id. at ¶14. The plaintiff asserts that
the defendant was aware that the plaintiff had filed an inmate complaint “and
knew his action shall terminate any further attempts by [the plaintiff] to litigate
claim’s against any governmental official once and for all.” Id. at ¶16.
About a year later, on June 1, 2012, the plaintiff was transferred to
Columbia Correctional Institution. Dkt. No. 64 at ¶53. Before the transfer, the
plaintiff’s property again was sorted and inventoried. Id. at ¶51. The defendant
does not say who sorted and packed the plaintiff’s property before the transfer;
the plaintiff asserts that it was the defendant, dkt. no. 28 at ¶17. Someone
completed a Property Inventory form and gave the plaintiff the opportunity to
sort through his things; the plaintiff signed the form on May 31, 2012. Dkt. No.
64 at ¶52; Dkt. No. 65-7. The defendant says that based on his review of the
records, all the plaintiff’s property was sent to Columbia; nothing remained at
WSPF. Id. at ¶55. The defendant had no further involvement regarding the
plaintiff’s property. Id. at ¶54. He doesn’t know what property the plaintiff
received at Columbia. Id. at ¶56.
B. The Plaintiff’s Legal Activity in State Court
1. The Plaintiff’s Criminal Appeal
On November 19, 2010, the plaintiff filed a notice of appeal in Milwaukee
County Case Number 2006CF640. Dkt. No. 64 at ¶¶78-79. After granting
several extensions of time, the Wisconsin Court of Appeals set the deadline for
the plaintiff to file his brief deadline at June 20, 2011. Id. at ¶¶80-81. The
plaintiff timely submitted both his appellant’s brief and his reply. Id. The
defendant asserts that in the plaintiff’s briefing materials, he alleged that he
didn’t have a copy of his legal transcripts because his criminal defense attorney
refused to provide them. Id. at ¶84. The defendant says that the plaintiff didn’t
mention the defendant in his appellate pleadings or allege that he was unable
to pursue his appeal because the defendant destroyed his legal materials. Id. at
¶83. The Wisconsin Court of Appeals affirmed the circuit court’s decision on
November 6, 2012. Id. at ¶82.
In his summary judgment materials, the defendant provided a copy of
the plaintiff’s briefs in his criminal appeal. The plaintiff’s opening brief—
including the cover and the table of contents—was fifty-four pages long. Dkt.
No. 67-3 at 20-74. It contains quotations from police reports and, perhaps
more to the point, extensive quotes from transcripts. For example, it contains
quotes from the hearing on the plaintiff’s motion to suppress. Id. at 31-32. It
contains quotes from the prosecutor’s direct examination of a Sgt. Heyrman. Id.
at 39. It appears to contain quotes from arguments presented to the court. Id.
at 40-41. While the brief jumps from case cites to argument to quotes from
documents, it appears to be filled with quotes from legal materials from the
plaintiff’s criminal case.
The plaintiff’s reply brief, including the table of contents, was eleven
pages long. Id. at 75-86. It specifically identified errors he believed his
attorneys had made in representing him, provided quotes from the trial judge,
and argued that his right to appeal had been violated because his lawyer “and
or the State failed to provide complete transcript.” Id. at 81 (emphasis in the
original).
In his third amended complaint in this case, the plaintiff alleged that the
defendant destroyed his right to appeal, and that having his transcripts and
other legal materials stolen rendered his appellate pleadings unintelligible and
incomprehensible. Dkt. No. 28 at ¶27.
2. The Plaintiff’s Writ of Certiorari
On March 31, 2011, the plaintiff filed an offender complaint alleging
procedural errors in Conduct Report #2155463—the report alleging that he had
engaged in enterprise and fraud. Dkt. No. 67-1 at 9-10. The plaintiff received a
final decision on the merits from Office of the Secretary of the Department of
Corrections on May 20, 2011. Id. at 8-9; Dkt. No. 67-2 at 23. The plaintiff later
sent the Dane County Circuit Court a letter, postmarked July 26, 2011, asking
for an extension of time to challenge the Secretary’s decision through a writ of
certiorari. Dkt. No. 64 at ¶70. A Prisoner Litigation Staff Attorney at Dane
County responded to the letter on July 28, 2011, stating that there was no
open case in which the court could rule on his request for an extension of time.
Id. at ¶71. The staff attorney told the plaintiff that when he did file his petition
for writ of certiorari, he could raise the reasons for his delay in that filing. Id.
Three months later, on October 25, 2011, the plaintiff filed his writ of
certiorari and explained that his filing was late because he didn’t have access to
the law library and didn’t have inmate legal assistance. Id. at ¶¶72-73. He
made no mention of the defendant having destroyed his legal materials. Id. at
¶77. The Dane County Circuit Court dismissed the petition for a writ of
certiorari because it was untimely filed, and because the plaintiff failed to
provide a sufficient reason for why his filing was late. Id. at ¶74. The plaintiff
appealed the decision, and the Wisconsin Court of Appeals upheld the circuit
court’s dismissal. Id. at ¶¶75-76.
In the third amended complaint in this case, the plaintiff asserted that
he missed the mandatory deadline to file his petition for a writ of certiorari, but
did not allege that it was because of the defendant. Dkt. No. 28 at ¶¶22-23.
Rather, he alleged that the mailroom staff withheld a document that he needed,
and that because he was forced to use the U.S. mail (due to prison policy) he
couldn’t meet the filing deadline. Id. at ¶23.
II. DISCUSSION
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute
over a “material fact” is “genuine” if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be disputed or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
B. Analysis
“There is an independent constitutional right to meaningful access to the
courts.” Huber v. Anderson, 909 F.3d 201, 210 (7th Cir. 2018) (citing Bounds
v. Smith, 430 U.S. 817, 824 (1977)). “[E]fforts by state actors to impede an
individual’s access to courts . . . may provide the basis for a constitutional
claim under 42 U.S.C. § 1983.” Harrell v. Cook, 169 F.3d 428, 432 (7th Cir.
1999) (quoting Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir. 1995)). “A
prisoner states an access-to-courts claim when he alleges that even though he
successfully got into court by filing a complaint or petition challenging his
conviction, sentence, or conditions of confinement, his denial of access to legal
materials caused a potentially meritorious claim to fail.” Marshall v. Knight,
445 F.3d 965, 969 (7th Cir. 2006). To prove such a claim, “a prisoner must
show that unjustified acts or conditions ‘hindered his efforts to pursue a legal
claim.’” Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir. 1998) (quoting Lewis v.
Casey, 518 U.S. 343, 351 (1996)). Actions by a prison official that are “merely
‘negligent’ [are] insufficient to support . . . a denial of access to the courts . . .
claim under § 1983.” Hunter v. Welborn, 52 Fed. App’x 277, 280 (7th Cir.
2002) (citations omitted).
1. Did Any of the Plaintiff’s Legal Materials Disappear?
The plaintiff argues that if he’d had the legal materials that he claims
were taken and destroyed, he would have been able to do a better job in his
criminal appeal and in his attempt to obtain court review of the enterprise-and-
fraud disciplinary complaint. The first question is whether there is any
evidence that anyone took or destroyed the plaintiff’s legal materials.
The evidence shows that a day or so after the plaintiff was placed in TLU,
he was approved to have “ALL Legal materials & miscellaneous papers—limit
one 20 x 20 x 20 box.” Dkt. No. 65-3 at 2. There is no record of the specific
items included in “ALL Legal materials & miscellaneous papers.” There is no
way to know what prison staff let the plaintiff keep with him in TLU.
When the plaintiff left the RHU on May 25, 2011, the defendant and Bast
filled out a form indicating that they had returned legal materials,
miscellaneous papers and seventeen three-ring binders to the plaintiff. Dkt. No.
65-6. There is no description of what the “legal materials” were or what was in
the binders, and the defendant says he didn’t catalogue each of them
separately. The defendant readily admits that he and Bast confiscated several
items from the plaintiff that day but he swears that none of those items were
legal materials. The plaintiff’s name appears on the property
receipt/disposition form. Id.
In June 2011, the plaintiff filed several inmate complaints about his
property. On June 1, 2011, he signed a complaint alleging that the defendant
took from him items that had tape on them; he listed the items as “Complete
Bible Hand Book, Key Word Study Bible, Orthodox Study Bible, Bible map
chart book, dictionary, folders expending, photo’s.” Dkt. No. 40-2 at 10. This
complaint does not mention legal materials. On the same date, the plaintiff
signed another complaint about property he’d bought before a rule change—a
quick-connect cable, a gold pendant, wrist bands and a gold cross. Dkt. No.
40-3 at 10. This complaint did not mention legal materials.
On June 14, 2011, the plaintiff signed a third complaint. Dkt. No. 40-4
at 1. This one stated,
My official copy of my legal transcripts for my criminal appeal and
civil appeal is missing “per confiscation by “property room” The
official copies are needed to perfect the appeal I’m being denied
access to the court” →Issue← Transcripts are missing from
property
Id. Although criminal cases involve many hearings (hearings on motions,
evidentiary hearings, trials, sentencing hearings), the plaintiff did not say
which of the transcripts for his criminal appeal he was missing. He did not
describe his civil appeal, or describe the transcripts missing for that appeal.
On June 16, 2011, Kelly Trumm recommended that the complaint be
dismissed, stating that she had talked to the defendant, who had said, “Nope. I
have nothing. Checked his file and all.” Id. at 3. The defendant asserts that he
searched the property room but could not find any transcripts and says again
that he did not confiscate any legal materials from the plaintiff. Dkt. No. 64 at
¶¶39-40.
Other than the plaintiff’s assertions, there is no evidence of what “legal
materials” the plaintiff had before he was placed in TLU, or what legal materials
he got when he came out. The plaintiff’s description of what “legal materials”
went missing has changed over time. In the June 14, 2011 inmate complaint
he said that transcripts were missing and alleged that they had been
“confiscated” by the “property room.” In his appeal of the dismissal of the
complaint, the plaintiff alleged that when he was taken to TLU “staff” did not
list twenty-four binders on the property sheet, and mentioned Brown. Dkt. No.
40-4 at 5. He said that the defendant “wrote down 17 binders now [illegible]
just destroy everything before the decision.” Id. at 6. Either the plaintiff was
implying that he was missing not only transcripts but binders, or he was
alleging that the missing transcripts were in the allegedly missing binders—it is
not clear. By the time he filed his third amended complaint in this lawsuit, the
plaintiff generally referenced his “property” and “legal property,” without
describing the allegedly missing property. When he filed his response to the
summary judgment motion, the plaintiff alleged that his “legal possessions”
had included “Courts opinions, court record, and courts brief(s),” dkt. no. 73 at
2, as well as Black’s Law Dictionary, law books (such as Legal Writing a
Systemic Approach and Modern Criminal Procedure), handbooks (such as the
Seventh Circuit handbook), checklists, rules of evidence, and “[t]hree ring
binders containing Criminal and Civil case laws, in the U.S. Supreme Court
U.S. Appeals Court U.S. District Court’s alongwith, Wis. Supreme Court and
Appeals courts cases citations,” dkt. no. 73 at 19-21.
Because there is no evidence indicating what legal materials the plaintiff
had before he went to TLU, it is hard to imagine how a reasonable jury could
find that some of those materials had gone missing.
2. If the Plaintiff’s Legal Materials Disappeared, Did the
Defendant Take Them?
Even if a jury were to decide that some of the plaintiff’s legal materials
went missing, and assuming it could figure out what those materials were, the
next question would be whether there is any evidence that the defendant
confiscated them. The record reflects that the plaintiff was approved to have all
his legal materials with him in TLU as of December 15, 2010. The day the
plaintiff was released from the RHU—May 25, 2011—he signed off on the
property receipt the defendant and Bast had prepared; there is no indication
that he told anyone at that time that legal materials were missing. The first
time he mentioned missing legal documents was in the inmate complaint he
signed three weeks later, on June 14, 2011. When he filed that complaint, the
plaintiff alleged that the transcripts were confiscated by the “property room.”
As time went on and the plaintiff appealed the dismissal of his complaint and
then brought this lawsuit, he specifically accused the defendant of taking the
missing materials.
The plaintiff appears to base his accusation on the following facts: (a) the
defendant was one of the two officers who inventoried his property when he left
the RHU, and who confiscated some of his personal property at that time, (b)
the defendant was the manager of the property room, (c) the defendant was the
one who reported to the plaintiff that that his confiscated property hadn’t made
it to his mother, (d) the defendant had the confiscated property destroyed in
September 2014, and (e) according to the plaintiff, the defendant was angry
with the plaintiff. Much of this, in the court’s view, is speculation and
conclusion, and a plaintiff cannot rely on speculation and conclusory
allegations to establish an access to the courts claim. See Rosario v. Reddy, No.
95 C 2610, 1996 WL 145771, at *1 (N.D. Ill. Mar. 27, 1996).
While the defendant was one of the two officers who inventoried the
plaintiff’s property when he left RHU (and who confiscated some of that
property), the events the plaintiff describes in the third amended complaint
cover a nine-month period, from December 2010 (when he went into TLU and
received his legal materials) to September 2011 (when the confiscated property
was destroyed). The evidence does not indicate how many people at the prison
had access to the plaintiff’s property during that time; the plaintiff mentions
Brown (and alleges at some points that Brown had some part in what
happened) and the defendant, but likely there were others. The fact that the
defendant was the manager of the property room does not, by itself, prove that
the defendant took any legal materials from the plaintiff. The plaintiff admits
that the defendant communicated with him about trying to ship the property to
his mother, even providing the plaintiff with the Spee-Dee receipt when the
plaintiff requested it. The plaintiff alleges that the defendant lied about trying
to send the property to his mother, but it makes little sense that if the
defendant wanted to punish the plaintiff for something, he would make up an
elaborate story about holding the confiscated property and trying to mail it. It
seems more likely that the defendant simply would have destroyed the property
right away.
Finally, as to motive, the plaintiff asserts that the defendant got angry
with the plaintiff when, during the inventory of the plaintiff’s property on his
release from the RHU in May 2011, the plaintiff challenged the confiscation of
property that had tape on it. The plaintiff alleged in the third amended
complaint that at that point, the defendant was “angry heated yet infuriated”
and threatened to send the plaintiff back to segregation. Dkt. No. 28 at ¶10.
The plaintiff also alleged that the defendant took and destroyed his property to
prevent the plaintiff from “filing of inmate complaints and to stop any legal
action” by the plaintiff. Id. at ¶14.
Though the court thinks it unlikely, perhaps a reasonable jury might
credit the plaintiff’s assertion that the defendant was so angry about the
argument over the taped items that he would destroy the plaintiff’s legal
materials. Perhaps a reasonable jury might credit the plaintiff’s assertion that
the defendant destroyed his materials to keep him from proceeding on his
appeal (he’d filed his notice of appeal in November 2010, some six months
before he was released from RHU) or to get back at the plaintiff for filing an
inmate complaint about the fraud-and-enterprise conduct report (the plaintiff
filed that inmate complaint in March 2011, two months before he was released
from RHU).
3. If the Defendant Took the Plaintiff’s Legal Materials, Did He
Do It to Deprive the Plaintiff of Access to the Courts?
The defendant admits that he destroyed some of the plaintiff’s property
on September 14, 2011, but the evidence shows that the defendant destroyed
the confiscated property only after he had held it for three months past the
June 27, 2011 deadline to dispose of the property, and only after the plaintiff
had failed to come up with enough money to pay for the postage to ship the
property to his mother. Nonetheless, a jury might credit the plaintiff’s account.
4. If the Defendant Took the Plaintiff’s Legal Materials in an
Effort to Deprive Him of Access to the Courts, Did He Succeed
Such that He Injured the Plaintiff?
While the plaintiff’s claims are weak regarding the factors discussed
above, it is here that the plaintiff’s claim fails. On the facts in the record, no
reasonable jury could conclude that the plaintiff was unable to pursue his
various legal actions as a result of the defendant’s actions.
The plaintiff was able to appeal his criminal conviction. Although he
sought several extensions of time in which to file his brief, there is no evidence
that the reason he asked for those extensions was because he was missing
legal materials. He ended up filing his brief before the last extended deadline—
in other words on time. The brief was fifty-four pages long. Nowhere in the brief
does the plaintiff say that some of his transcripts or other legal materials were
missing, or say that he could not make certain arguments because he did not
have transcripts or other documents. In fact, while the brief is difficult to follow
at times, the plaintiff appears to have quoted from many documents related to
his trial, such as police reports, exchanges between lawyers and statements by
the judge. Even assuming he didn’t have all the transcripts he needed, the
plaintiff alleged in that same brief that it was his state defense counsel who
refused to give him the transcripts, not that the defendant took or destroyed
them. The plaintiff also filed an eleven-page reply brief in support of his appeal.
Further, although the plaintiff did not win on appeal, the constitutional
guarantee of access to the courts is not a guarantee of success in the courts.
The plaintiff has not explained how the materials that he claims are missing
would have changed the outcome of his appeal. He has not said which
opinions, which briefs and which court records are missing. He says that the
three-ring binders that are missing contained criminal and civil laws and
cases—some 3,000 to 4,000 pages worth. Dkt. No. 73 at 21. He does not
explain why he needed these laws and cases to pursue his appeal, and his
appellate briefs are filled with case citations. While he alleged in his June 2011
inmate complaint that transcripts were missing, the plaintiff never has argued
that, for example, he was not able to tell the Court of Appeals about alleged
errors at his trial because he did not have the transcript of that trial.
The same is true for the plaintiff’s claim that the defendant caused him
to miss the deadline for filing his petition for certiorari review of the fraud-and-
enterprise conduct report. The plaintiff does not describe which missing
documents prevented him from timely filing the petition, or how anything that
he claims the defendant took or destroyed would have made it possible for him
to file the petition on time. As noted, the plaintiff has claimed that he was
missing “legal transcripts.” “[T]ranscripts are not required to invoke a petition
for certiorari.” Martin v. McWilliams, No. 84 C 3599, 1986 WL 5199, at *2 (N.D.
Ill. Apr. 25, 1986). That is especially true given that the plaintiff’s certiorari
petition related to his appeal from a denial of an inmate complaint, not from a
court proceeding.
In Owens v. Evans, 878 F.3d 559, 565 (7th Cir. 2017), the Seventh
Circuit concluded that an inmate couldn’t establish “prejudice” without
explaining “why” he needed access to his inmate grievances, supplies, and
“excess legal storage boxes” to prevail on his cases. The court noted that the
inmate had to identify “specific negative consequences” from not having the
legal materials he sought. Id. Like the plaintiff in Owens, the plaintiff in this
case has made generalized and vague assertions that he needed his “legal
property” to pursue his criminal appeal and petition for writ of certiorari, but he
has not explain why or how the absence of these documents—whatever they
were—affected the outcome of his cases.
Because no reasonable jury could conclude that whatever legal materials
might have gone missing—even if the defendant took them and destroyed them
in some effort to prevent the plaintiff from proceeding with his court cases—
prevented the plaintiff from having his constitutional right of access to the
courts, the court will grant the defendant’s motion for summary judgment.4
III. CONCLUSON
The court ORDERS that the defendant’s motion for summary judgment
is GRANTED. Dkt. No. 62.
The court ORDERS that this case is DISMISSED. The court will enter
judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Fed. R. App. P. 3, 4. This court may extend this deadline if a party timely
4 The defendant also raised the defense of qualified immunity, dkt. no. 63 at
18-20, but the court need not address the issue because it has granted the
defendant summary judgment on the merits.
requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be
filed within a reasonable time, generally no more than one year after the entry
of the judgment. The court cannot extend either deadline. See Fed. R. Civ. P.
6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 19th day of July, 2019.
BY THE COURT:
United States District Judge
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