Snyder, James R. v. Nolen, Jack T.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-1688

JAMES R. SNYDER,

Plaintiff-Appellant,

v.

JACK T. NOLEN,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 98 C 671—William L. Beatty, Judge.

____________

ARGUED SEPTEMBER 20, 2002—DECIDED AUGUST 13, 2004

____________

Before EASTERBROOK, RIPPLE and KANNE, Circuit Judges.

PER CURIAM. James Snyder filed this action pursuant to

42 U.S.C. § 1983 against Jack Nolen, Clerk of the Circuit

Court of Saline County, Illinois. The complaint alleged that

Mr. Nolen had violated Mr. Snyder’s constitutional right of

access to the courts when Mr. Nolen prevented Mr. Snyder

from prosecuting a domestic relations action for dissolution

of marriage and a temporary restraining order in the state

court. The district court dismissed Mr. Snyder’s complaint

on the alternate grounds that it did not state a constitu-

tional claim, that Mr. Nolen was entitled to absolute qua-si-

judicial immunity and that Mr. Nolen was entitled to

2 No. 01-1688

qualified immunity. Mr. Snyder appealed, and this court

now affirms.

It is the unanimous opinion of the court that Mr. Nolen is

not protected by absolute quasi-judicial immunity. Nev-

ertheless, it is the opinion of the majority of the panel that

Mr. Snyder has not stated a claim for a constitutional vio-

lation of right to access to the courts; the individual judges,

however, differ with respect to how they arrive at that deter-

mination. A third member of the panel is of the opinion that

Mr. Snyder’s complaint states a constitutional violation and

that Mr. Nolen is not entitled to qualified immunity on that

claim.

This per curiam opinion sets forth the procedural back-

ground of the case and articulates the court’s holding with

respect to the issue of absolute quasi-judicial immunity.

The separate opinions of the panel majority follow, as does

that of the panel’s dissenting member.

I

BACKGROUND

A.

In November of 1996, Mr. Snyder attempted to file a

petition for a dissolution of marriage and a temporary

restraining order against his wife, Denise Snyder, in the

Circuit Court of Saline County, Illinois. In his petition, Mr.

Snyder requested that the state court “enter an order

restraining [his wife] from selling or concealing or encum-

bering in any manner” the property claimed to be his pur-

suant to a prenuptial agreement. R.22, Ex.1. Mr. Snyder

alleged that he was estranged from his wife, that his wife

was in sole possession of his non-marital property, that he

was incarcerated in the custody of the Illinois Department

of Corrections, and that his assets were at substantial risk

because his wife had indicated to Mr. Snyder’s friends that

No. 01-1688 3

she intended to liquidate certain property belonging to Mr.

Snyder.

According to Mr. Snyder’s complaint in this action, the

pleadings that he proposed to file in the state domestic

relations proceedings complied with that court’s technical

filing requirements and alleged a factual basis for a disso-

lution of marriage and for a temporary restraining order.

Nevertheless, Mr. Nolen, as the Circuit Court Clerk, al-

legedly removed Mr. Snyder’s pleadings from the court’s

docket and placed a large “X” over the court’s “Filed” stamp

with the word “error.” R.22.1 Mr. Nolen then returned the

1

The district court characterized Mr. Nolen’s conduct as a refusal

to file Mr. Snyder’s pleadings. We note, however, that Mr.

Snyder’s second amended complaint actually characterizes Mr.

Nolen’s conduct in two ways. First, the complaint alleges that Mr.

Nolen wrongfully refused to file the pleadings. Second, the com-

plaint states that “Nolen gave the court jurisdiction by affixing a

file-stamp and docketing number, and his actions in ‘whiting out’

[the] same was an ‘impermissible encroachment of judicial au-

thority.’ ” R.22.

In Coles v. Terrell, 44 N.E. 391 (Ill. 1896), and more recently

in Ayala v. Goad, 531 N.E.2d 1040 (Ill. App. Ct. 1988), the Illinois

courts have held that, once the clerk has file stamped the pleading

and docketed the case, the papers become the files of the court and

cannot be withdrawn without leave of court. See Coles, 44 N.E. at

392 (“The clerk put his file mark upon it, and also docketed it in

the probate docket. It then . . . most certainly became a part of the

records of the court. It had passed completely out of the control of

the party filing it, and it could not be subsequently withdrawn

without an order of court. The clerk had no authority to permit its

withdrawal.”); Ayala, 531 N.E.2d at 1043 (“It is clear that by file

stamping the complaint and assigning a docket number, the

clerk’s office filed the complaint on January 5, 1987, notwith-

standing that the fee may not have been paid, and it was then in

the exclusive custody and control of the clerk’s office and a part of

(continued...)

4 No. 01-1688

pleadings to Mr. Snyder with a note attached, stating that

“[b]ecause there is a child involved in this case, you must go

thru [sic] an attorney for a divorce.” R.22, Ex.1. The parties

do not dispute that Mr. Nolen’s instruction was incorrect.

The complaint further alleges that Mr. Nolen took these

actions “without consulting any judge . . . as to the propri-

ety of his actions.” R.22 at 5.2 According to the complaint,

sometime after Mr. Snyder’s state court pleadings were

rejected and returned, his wife liquidated his non-marital

assets and dissipated the proceeds.

B.

On September 17, 1998, Mr. Snyder filed this action

against Mr. Nolen pursuant to 42 U.S.C. § 1983. The com-

plaint alleged that Mr. Nolen had violated Mr. Snyder’s

constitutional right of access to the courts and that, as a

1

(...continued)

the records of the circuit court. The filing date of the complaint

could not thereafter be changed by the clerk of the circuit court as

he has no authority to do so without leave of court.”).

2

Whether Mr. Nolen’s action is characterized as a refusal to file

Mr. Snyder’s pleadings or a removal of Mr. Snyder’s pleadings

from the docket, there appears to be no authority under Illinois

law to justify his actions. See infra note 9; cf. Ayala, 531 N.E.2d

at 1043 (“The circuit clerk’s practice of filing then changing the

filing dates on documents where fees were not paid created the

situation in the present case. Such a practice impermissibly en-

croaches upon the judicial authority and casts doubt upon the

reliability of the dates on which documents have been filed with

his office. We point out that the clerk may refuse to accept a docu-

ment unless the fee is paid (Ill.Rev.Stat. 1987, ch. 25, par. 27.1);

however, where the clerk has accepted a document for filing without

the fee, file stamps it and assigns a docket number, as occurred in

the present case, the circuit court nevertheless acquires juris-

diction of the case.”).

No. 01-1688 5

result of that violation, Mr. Snyder was prevented from

obtaining a court order to prevent his wife from dissipating

his non-marital assets. Mr. Snyder’s original complaint was

stricken by the district court for non-compliance with the

procedural requirements of Local Rule 8.1 (“Pleadings Filed

by Prisoners”) because the complaint was not prepared on

the court’s required forms. See R.3.

On November 2, 1998, Mr. Snyder filed a first amended

complaint. This complaint and a motion to dismiss filed

by Mr. Nolen were referred to a magistrate judge. The

magistrate judge recommended that Mr. Snyder’s complaint

be dismissed on the ground that Mr. Nolen’s action was a

quasi-judicial act entitled to absolute immunity. See R.19.

Mr. Snyder timely objected to this recommendation. The

district court, without considering the magistrate judge’s

recommendation, dismissed Mr. Snyder’s complaint, with

leave to re-file, on the ground that it was unclear from the

complaint whether Mr. Snyder was suing Mr. Nolen in his

official or individual capacity. See R.21.

On April 6, 2000, Mr. Snyder timely filed a second

amended complaint, the pleading at issue here. In this

complaint, Mr. Snyder claimed that Mr. Nolen was liable in

his individual capacity for blocking Mr. Snyder’s access to

the Saline County Court in violation of the federal right of

access to the courts. He further alleged a supplemental

claim based on the Constitution of the State of Illinois.

Specifically alleging the loss of his personal property, Mr.

Snyder sought compensatory damages in the amount of

$60,000 (the value of his dissipated assets) and punitive

damages in the amount of $100.

Mr. Nolen again filed a motion to dismiss. On February

2, 2001, the magistrate judge recommended that the com-

plaint be dismissed on three separate grounds: (1) that the

complaint did not state a constitutional claim; (2) that Mr.

Nolen was entitled to absolute quasi-judicial immunity; and

6 No. 01-1688

(3) that Mr. Nolen was entitled to qualified immunity. See

R.33. A notice accompanied the magistrate judge’s report

and recommendation that notified the parties that the

failure to object to the report within ten days of service “shall

result in a waiver of the right to appeal all issues, both

factual and legal, which are addressed in the Report and

Recommendation.” Id.

Mr. Snyder filed no objections to the magistrate judge’s

report. On February 23, 2001, the district court adopted the

magistrate judge’s report and recommendation and granted

Mr. Nolen’s motion to dismiss. See R.34. On March 7, 2001,

the district court entered judgment in favor of Mr. Nolen.

See R.35. On March 16, 2001, Mr. Snyder filed with the

district court a motion to vacate the judgment and, in the

alternative, a notice of appeal. In a sworn affidavit, Mr.

Snyder explained that he had just returned from a different

prison facility to which he had been transferred on tempo-

rary writ status for a fitness hearing in his underlying

criminal case.3 He did not receive the magistrate judge’s

order until his return. By that time, the district court had

entered a judgment. Mr. Snyder further stated that, prior

to his transfer, he had requested that the prison warden

forward his mail to his temporary address but that the

prison had failed to do so. The district court denied Mr.

Snyder’s motion to vacate the judgment on April 2, 2001.

See R.40. This appeal followed.

3

Specifically, Mr. Snyder stated that he was transferred from the

Shawnee Correctional Center to the Illinois River Correctional

Center on January 3, 2001, and that he did not return to Shawnee

until March 7, 2001.

No. 01-1688 7

II

DISCUSSION

A.

We first must determine whether Mr. Snyder has waived

his right to appeal. Mr. Nolen submits that, because Mr.

Snyder failed to timely object to the magistrate judge’s

report, he has waived his right to appeal all factual and

legal issues to this court. Mr. Snyder concedes that he did

not object to the magistrate judge’s report; however, he

maintains that the interests of justice require a finding that

his right to appeal has not been waived.

In Thomas v. Arn, 474 U.S. 140, 155 (1985), the Supreme

Court held that, consistent with the requirements of due

process, “a court of appeals may adopt a rule conditioning

appeal, when taken from a district court judgment that

adopts a magistrate’s recommendation, upon the filing of

objections with the district court identifying those issues on

which further review is desired” so long as the rule provides

“clear notice to the litigants and an opportunity to seek an

extension of time for filing objections.” In so holding, the

Court further provided that “because [this] rule is a

nonjurisdictional waiver provision, the Court of Appeals

may excuse the default in the interests of justice.” Id. In

Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th

Cir. 1986), this circuit adopted such a rule, concluding that

“failure to file objections with the district judge waives the

right to appeal all issues, both factual and legal.” However,

we also recognized that “under certain circumstances the

failure to file objections may be excused because the rule is

not jurisdictional and should not be employed to defeat the

ends of justice.” Id. at 540 (internal quotation marks and

citations omitted).

Mr. Snyder was a pro se litigant throughout the proceed-

ings in the district court. As a general proposition, pro se

litigants are subject to the same waiver rules as litigants

8 No. 01-1688

represented by counsel. See Provident Sav. Bank v.

Popovich, 71 F.3d 696, 700 (7th Cir. 1995). However, we

decline to apply waiver in this case because doing so would

defeat the ends of justice. Shortly before the magistrate

judge’s report was issued and mailed to Mr. Snyder’s “perm-

anent” prison address, Mr. Snyder was transferred tempo-

rarily to a different correctional facility. Mr. Snyder re-

quested that the prison forward his mail, but the prison

failed to do so. As a result, Mr. Snyder did not receive the

magistrate judge’s report until after the time for objection

had expired and the district court had entered judgment

against Mr. Snyder.

We cannot accept Mr. Nolen’s contention that waiver

should be applied in this case because Mr. Snyder’s failure

to receive the magistrate’s report was due to his own fault

in failing to notify the court clerk of his change of address.

The record simply will not support such a finding of fault on

the part of Mr. Snyder. As a general principle, because

“[t]he parties are far better situated to know of any errors

in their address information,” litigants, including prisoners,

“bear the burden of filing notice of a change of address in

such a way that will bring the attention of the court to the

address change.” Theede v. United States Dep’t of Labor, 172

F.3d 1262, 1267 (10th Cir. 1999). Here, we deal with a

temporary absence from a continuing address. Mr. Snyder

has set forth the steps that he took to ensure that he

received his mail during his absence on a temporary writ

from the institution to which he was regularly assigned.

Notably, the record contains no indication that Mr. Snyder

in any way departed from the prison’s normal course of

procedure.4 Accordingly, we decline to hold that Mr. Snyder

4

The realities of prison administration require that those re-

sponsible for the administration of these institutions have signi-

ficant flexibility in setting up procedures to ensure that prisoners

(continued...)

No. 01-1688 9

waived his right to appeal.

B.

We next must determine whether, given the specific alle-

gations of the complaint, Mr. Nolen may claim absolute

quasi-judicial immunity.

Following the holdings of the Supreme Court of the

United States,5 we have recognized “the fundamental

4

(...continued)

who are temporarily absent from their place of incarceration

receive prompt notification of official correspondence. If a prison

administration believes that the administrative burden of forward-

ing the mail of temporarily transferred prisoners is too great, it may

establish a procedure requiring the prisoner to assume responsi-

bility for making his new address known to his correspondents,

including the courts in which the prisoner has cases pending. As

long as the prisoner is given adequate and timely notice of his new

address and an opportunity to notify the court, such a provision

would impose a reasonable requirement upon the prisoner.

5

See Mireles v. Waco, 502 U.S. 9, 12-13 (1991) (holding that judge’s

alleged action in directing officers to bring before the court an

attorney who was in the courthouse was taken in judge’s judicial

capacity and, therefore, judge was entitled to absolute immunity

even though he allegedly directed officers to carry out the order

with excessive force); Forrester v. White, 484 U.S. 219, 225-29

(1988) (holding that judge acted in administrative capacity when

he demoted and dismissed probation officer and, therefore, was

not entitled to absolute immunity); Stump v. Sparkman, 435 U.S.

349, 362-63 (1978) (holding that judge acted in judicial capacity

when he approved mother’s ex parte petition to have her mentally

retarded minor daughter sterilized and, therefore, was entitled to

absolute immunity); Pierson v. Ray, 386 U.S. 547, 553-55 (1967)

(holding that 42 U.S.C. § 1983 did not abolish the “settled princi-

ple” of judicial immunity and, therefore, judge could not be held

(continued...)

10 No. 01-1688

principle that judges are entitled to absolute immunity from

damages for their judicial conduct.” Richman v. Sheahan,

270 F.3d 430, 434 (7th Cir. 2001). The principle “is sup-

ported by a long-settled understanding that the independ-

ent and impartial exercise of judgment vital to the judiciary

might be impaired by exposure to potential damages

liability. Accordingly, the ‘touchstone’ for the doctrine’s

applicability has been ‘performance of the function of re-

solving disputes between parties, or of authoritatively ad-

judicating private rights.’ ” Antoine v. Byers & Anderson, Inc.,

508 U.S. 429, 435-36 (1993) (quoting Burns v. Reed, 500

U.S. 478, 500 (1991) (Scalia, J., concurring in judgment in

part and dissenting in part)).

The Supreme Court has instructed that a functional

approach should be taken in determining whether an in-

dividual is entitled to absolute immunity. See Forrester v.

White, 484 U.S. 219, 224 (1988); Cleavinger v. Saxner, 474

U.S. 193, 201 (1985). Whether absolute immunity ought to

be afforded is dependent upon the nature of the functions

performed by the officer in question and “the effect that

exposure to particular forms of liability would likely have

on the appropriate exercise of those functions.” Forrester,

484 U.S. at 224. “[T]he cloak of immunity is designed to

prevent a situation in which decision-makers act with an

excess of caution or otherwise . . . skew their decisions in

ways that result in less than full fidelity to the objective

and independent criteria that ought to guide their conduct

out of a fear of litigation or personal monetary liability.”

Tobin for Governor v. Illinois State Bd. of Elections, 268

5

(...continued)

liable for an unconstitutional conviction); Bradley v. Fisher, 80

U.S. (13 Wall.) 335, 351 (1872) (holding that “judges of courts of

superior or general jurisdiction are not liable to civil actions for

their judicial acts, even when such acts are in excess of their juris-

diction, and are alleged to have been done maliciously or corruptly”).

No. 01-1688 11

F.3d 517, 522 (7th Cir. 2001) (internal quotation marks and

citations omitted).

These policy concerns have required that, in some in-

stances, “[t]he absolute immunity afforded to judges [be]

extended to apply to quasi-judicial conduct of [n]on-judicial

officials whose official duties have an integral relationship

with the judicial process.” Richman, 270 F.3d at 435 (inter-

nal quotation marks and citations omitted); see also In re

Castillo, 297 F.3d 940, 947 (9th Cir. 2002) (“Absolute judi-

cial immunity is not reserved solely for judges, but extends

to nonjudicial officers for ‘all claims relating to the exercise

of judicial functions.’ ” (quoting Burns, 500 U.S. at 499

(Scalia, J., concurring in judgment in part and dissenting in

part))).

This immunity has been extended to non-judges in two

circumstances. First, it has been applied to “quasi-judicial

conduct,” Richman, 270 F.3d at 435, that is, actions of non-

judicial officers acting in a judicial capacity. As the Supreme

Court has explained, “[w]hen judicial immunity is extended

to officials other than judges, it is because their judgments

are ‘functional[ly] comparab[le]’ to those of judges—that is,

because they, too, ‘exercise a discretionary judgment’ as a

part of their function.” Antoine, 508 U.S. at 436 (quoting

Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976)).6

6

In holding that court reporters are not protected by absolute

quasi-judicial immunity, the Supreme Court in Antoine v. Byers

& Anderson, Inc., 508 U.S. 429 (1993), wrote:

The function performed by court reporters is not in this

category. . . . [C]ourt reporters are required by statute to

“recor[d] verbatim” court proceedings in their entirety. 28

U.S.C. § 753(b). They are afforded no discretion in the

carrying out of this duty; they are to record, as accurately

as possible, what transpires in court. . . . In short, court

reporters do not exercise the kind of judgment that is

(continued...)

12 No. 01-1688

Absolute immunity does not extend to all positions simply

“because they are part of the judicial function.” Id. at 435

(internal quotation marks and citations omitted).

Absolute judicial immunity also has been extended to the

conduct of a second group of individuals. “[W]hen functions

that are more administrative in character have been un-

dertaken pursuant to the explicit direction of a judicial

officer, we have held that that officer’s immunity is also

available to the subordinate.” Kincaid v. Vail, 969 F.2d 594,

601 (7th Cir. 1992). “The policy justifying an extension of

absolute immunity in these circumstances is to prevent

court personnel and other officials from becoming a light-

ning rod for harassing litigation aimed at the court.”

Richman, 270 F.3d at 435 (internal quotation marks and

citations omitted). In applying this type of quasi-judicial

immunity, this court further has distinguished between the

court’s order and the manner in which the order is enforced.

See id. at 436. Thus, deputies who allegedly used excessive

force in carrying out a judge’s order to clear the courtroom

were not entitled to absolute immunity; the suit challenged

the way the officers enforced the order, not the order itself.

See id. at 437-39.

Before the recent guidance of the Supreme Court in

Antoine, we had occasion to apply these principles to clerks

of court on a few occasions. In Lowe v. Letsinger, 772 F.2d

308, 313 (7th Cir. 1985), we noted that “a court clerk enjoys

absolute immunity in rare instances where he is performing

nonroutine, discretionary acts akin to those performed by

judges.” We then determined that absolute immunity did

not apply to a clerk’s involvement in the concealment of the

entry of a post-conviction order “because the clerk’s duty to

6

(...continued)

protected by the doctrine of judicial immunity.

Id. at 436-37.

No. 01-1688 13

type and send notice after entry of judgment is a non-

discretionary, ministerial task.” Id. In Kincaid, we considered

the issue once again. Because the clerks in Kincaid acted

pursuant to judicial instruction when they returned the

plaintiffs’ complaint and filing fee and (erroneously) di-

rected them to file in a different court, we readily concluded

that the clerks’ actions were protected by absolute immu-

nity. See Kincaid, 969 F.2d at 601.

We have not had the opportunity to address squarely the

issue presently before us—whether a clerk’s refusal to file

a pleading qualifies for absolute immunity in the absence of

explicit judicial direction.7 We must therefore decide

7

Writing before the receipt of the more recent guidance from the

Supreme Court, those circuits that have addressed the issue have

reached contrary conclusions. In Mullis v. United States Bankruptcy

Court for the District of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987),

the Ninth Circuit held that clerks who initially accepted and filed

an incomplete bankruptcy petition without giving proper coun-

seling and notice regarding the chapters of the Bankruptcy Code

under which the plaintiff could file and later refused to accept an

amended petition were protected by absolute immunity. In so

doing, the court reasoned that “[t]he commencement of an action

by filing a complaint or petition is a basic and integral part of the

judicial process” and “[t]he clerk of court and deputy clerks are the

officials through whom such filing is done.” Id.; see also Smith v.

Erickson, 884 F.2d 1108, 1111 (8th Cir. 1989) (noting that “the

filing of complaints and other documents is an integral part of the

judicial process and that [a court clerk] would be protected by

judicial immunity from damages for civil rights violations com-

mitted in connection with the performance of such tasks”). The

Fourth Circuit in McCray v. Maryland, 456 F.2d 1, 4 (4th Cir.

1972), held, however, that “there is no basis for sheltering [a]

clerk from liability under section 1983 for failure to perform a

required ministerial act such as properly filing papers.” The court

reasoned that there was no history of extending such immunity to

clerks at common law and “the threat of possible tort liability does

(continued...)

14 No. 01-1688

whether Mr. Nolen’s actions in the present case, as de-

scribed in the operative complaint, fall within one of the two

categories of actions for which absolute judicial immunity

has been extended to non-judges in our previous cases.

With respect to the first category, Mr. Nolen was not

acting in a “functionally comparable” way to a judge. At the

outset, no one suggests that, under the law of Illinois, the

action of Mr. Nolen of extracting from the files of the court

a previously filed case and returning it to the litigant

without any judicial action having been taken can be char-

acterized as being colorably within his authority as the clerk

of a court. Indeed, it appears established that such action is

beyond the authority of the clerk.8 More importantly, on

this record, we cannot say that a traditional judicial func-

tion that involves the exercise of discretion has been dele-

gated to a subordinate court officer. As noted by the Supreme

Court, the “touchstone” for applying absolute immunity has

been “the function of resolving disputes between parties, or

of authoritatively adjudicating private rights.” Antoine, 508

U.S. at 435. Here, Mr. Nolen’s duty under the law of Illinois

to maintain the official record was purely ministerial; he

had no authority to resolve disputes between parties or to

make substantive determinations on the worth or merits of a

filing. In short, Mr. Nolen is charged with having breached

his duty to perform the ministerial act of accepting techni-

7

(...continued)

not ‘unduly inhibit’ the clerk in the discharge of his duties.” Id.

8

See, e.g., Ayala, 531 N.E.2d at 1043 (stating that a court clerk

may refuse to accept a document unless the fee is paid, but where

the clerk has accepted the document for filing without the fee, file

stamps it and assigns a docket number, the court nevertheless

acquires jurisdiction).

No. 01-1688 15

cally sufficient papers.9 The function re-

9

Section 13 of the Clerks of Courts Act, 705 Ill. Comp. Stat. 105/0.01

et seq., sets forth the general duties of court clerks. It does not

give the clerk the authority to refuse to file papers that conform

to the technical rules of court. Section 13 provides in relevant part

that “[t]he clerks shall attend the sessions of their respective

courts, preserve all the files and papers thereof, make, keep and

preserve complete records of all the proceedings and determina-

tions thereof, except in cases otherwise provided by law, and do

and perform all other duties pertaining to their offices, as may be

required by law or the rules and orders of their courts respectively.”

705 Ill. Comp. Stat. 105/13. Rule 131 of the Rules of the Supreme

Court of Illinois specifies the proper form of papers and appears

to provide some basis for a court clerk to reject a procedurally

nonconforming pleading. The rule provides:

(a) Legibility. All papers and copies thereof for filing and

service shall be legibly written, typewritten, printed, or

otherwise duplicated. The clerk shall not file any which

do not conform to this rule.

(b) Titles. All papers shall be entitled in the court and

cause, and the plaintiff ’s name shall be placed first.

(c) Multiple Parties. In cases in which there are two or

more plaintiffs or two or more defendants, it is sufficient

in entitling papers, except a summons, to name the first-

named plaintiff and the first-named defendant with the

usual indication of other parties, provided there be added

the official number of the cause.

(d) Name, Address and Telephone Number of Responsible

Attorney or Attorneys. All papers filed in any cause or

served upon the opposite party shall bear the name and

business address and telephone number, if any, of the

responsible attorney or attorneys and the law firm filing

the same, or of the party who appears in his own proper

person. If service by facsimile transmission is permitted

and the responsible attorney or attorneys or the party

who appears in his own proper person will accept service

(continued...)

16 No. 01-1688

quired of him by law involves none of the discretion that the

Supreme Court has told us in Antoine is at the heart of

absolute judicial immunity.

At least on the record before us, the second category for

quasi-judicial immunity is equally inapplicable to the clerk

in this case. This second category includes individuals who

are acting at the direction of a judicial officer. At this point

in the litigation, there is no claim that Mr. Nolen was ac-

ting at the direction of any judicial officer in returning Mr.

Snyder’s papers.

Accordingly, we must conclude that, on this record, there

is no basis for dismissal of the action on the ground of ab-

solute quasi-judicial immunity.10

9

(...continued)

by facsimile transmission, then the paper shall also bear

the statement “Service by facsimile transmission will be

accepted at [facsimile telephone number].”

Ill. S. Ct. R. 131; see also 1A Nichols Ill. Civ. Prac. § 11:7 (“Su-

preme Court Rule 131, which pertains to the preparation and form

of papers in original proceedings, provides that the clerk of the

court is not to file any papers which do not conform with the

requirements of Rule 131 as to form.”).

10

At first glance, it may seem that our review of this case is pre-

cluded by the Rooker-Feldman doctrine. See Dist. of Columbia

Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid.

Trust Co., 263 U.S. 413 (1923). Neither the parties nor the district

court addressed this issue, and we believe that they were correct

in that regard. The Rooker-Feldman doctrine prohibits lower

federal courts from engaging in appellate review of state court

determinations. See Young v. Murphy, 90 F.3d 1225, 1230 (7th

Cir. 1996); Garry v. Geils, 82 F.3d 1362, 1364 (7th Cir. 1996); Levin

v. Attorney Reg. & Disciplinary Comm’n of the Supreme Court of

Illinois, 74 F.3d 763, 766 (7th Cir. 1996). “Litigants who believe

that a state judicial proceeding has violated their constitutional

(continued...)

No. 01-1688 17

C.

We turn next to Mr. Nolen’s claim that he is entitled on

this record to qualified immunity.

Qualified immunity shields government officials from civil

liability “for the performance of their discretionary functions

when ‘their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.’ ” Buckley v. Fitzsimmons, 509

U.S. 259, 268 (1993) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). The central purpose of qualified immunity

is to protect public officials “ ‘from undue interference with

their duties and from potentially disabling threats of

10

(...continued)

rights must appeal that decision through their state courts and

then to the [United States] Supreme Court.” Centres, Inc. v. Town

of Brookfield, 148 F.3d 699, 702 (7th Cir. 1998). The specific

allegation in Mr. Snyder’s complaint is that Mr. Nolen, acting as

the Circuit Court Clerk, refused to file or actually removed al-

ready filed papers from the court’s docket. Under Illinois law, the

clerk simply has the ministerial duty to file papers that conform

to the technical rules of court. See In re Estate of Davison, 430

N.E.2d 222, 223 (Ill. App. Ct. 1981) (“Delivery alone has been held

to constitute filing since the person filing has no control over the

officer who receives documents. Subsequent ministerial tasks of

the clerk evidence the filing of a document but are not essential to

its perfection.” (internal citation omitted)); Roesch-Zeller, Inc. v.

Hollembeak, 124 N.E.2d 662, 664 (Ill. App. Ct. 1955) (“The duty of

the clerk to file the document on the date it was presented to him

was a ministerial act, the performance of which could be com-

pelled by writ of mandamus.”). Illinois therefore certainly would

not consider Mr. Nolen’s actions a “proceeding.” We therefore have

no occasion to address the tension between the doctrine of

absolute judicial immunity and the application of the Rooker-

Feldman doctrine to suits for damages against state judicial

officers. See Jackson v. Gardner, No. 93-3539, 1994 WL 684041,

at * 1 (7th Cir. Dec. 7, 1994).

18 No. 01-1688

liability.’ ” Elder v. Holloway, 510 U.S. 510, 514 (1994)

(quoting Harlow, 457 U.S. at 806). In determining whether

a defendant is entitled to qualified immunity, we engage in

a two-part inquiry. See Saucier v. Katz, 533 U.S. 194, 201

(2001). First, we determine whether, taken in the light most

favorable to the plaintiff, the facts alleged show that the

defendant violated a constitutional right. See id. If a

constitutional violation is shown on the basis of those facts,

we then determine whether the right was clearly estab-

lished at the time of the violation. See id. The clearly

established inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposi-

tion.” Id. “ ‘The contours of the right must be sufficiently

clear that a reasonable official would understand that what

he is doing violates that right.’ ” Id. at 202 (quoting Anderson

v. Creighton, 483 U.S. 635, 640 (1987)). The plaintiff bears

the burden of establishing the existence of a clearly estab-

lished constitutional right. See McGrath v. Gillis, 44 F.3d

567, 570 (7th Cir. 1995).

We first must determine whether the complaint before us

states a claim for a deprivation of the federal right of access

to the courts. Mr. Snyder alleges that he was deprived of his

federal constitutional right of access to the courts under the

First Amendment and substantive due process when Mr.

Nolen refused to file Mr. Snyder’s petition for a dissolution

of marriage and for a temporary restraining order against

his wife.

Mr. Nolen first maintains that Mr. Snyder was not de-

prived of a constitutional right because a prisoner’s right of

access to the courts is limited to actions challenging his

conviction, sentence or conditions of confinement. The mem-

bers of the panel agree that Mr. Nolen’s argument miscon-

strues the relevant Supreme Court precedent. In one line of

cases, the Supreme Court has held that the fundamental

right of access to the courts requires prison authorities to

provide prisoners with the tools necessary “to attack their

No. 01-1688 19

sentences, directly or collaterally, and in order to challenge

the conditions of their confinement.” Lewis v. Casey, 518 U.S.

343, 355 (1996); see also Bounds v. Smith, 430 U.S. 817, 828

(1977); Wolff v. McDonnell, 418 U.S. 539, 579-80 (1974);

Johnson v. Avery, 393 U.S. 483, 490 (1969). However, the

Supreme Court also has held that the First Amendment

right to petition the government includes the right to file

other civil actions in court that have a reasonable basis in

law or fact. See McDonald v. Smith, 472 U.S. 479, 484

(1985) (“[F]iling a complaint in court is a form of petitioning

activity; but baseless litigation is not immunized by the

First Amendment right to petition.” (internal quotation

marks and citations omitted)); Bill Johnson’s Rests., Inc. v.

NLRB, 461 U.S. 731, 741 (1983) (“[T]he right of access to the

courts is an aspect of the First Amendment right to petition

the Government for redress of grievances.”); California

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510

(1972) (“The right of access to the courts is indeed but one

aspect of the right of petition.”); see also Monsky v.

Moraghan, 127 F.3d 243, 246 (2d Cir. 1997) (“It is well

established that all persons enjoy a constitutional right of

access to the courts.”). This parallel development of these two

distinct lines of cases was recognized explicitly by our

colleagues in the Sixth Circuit in John L. v. Adams, 969 F.2d

228 (6th Cir. 1992). That court held that “in order to assure

that incarcerated persons have meaningful access to courts,

states are required to provide affirmative assistance in the

preparation of legal papers in cases involving constitutional

rights and other civil rights actions related to their incarcera-

tion,” but “in all other types of civil actions, states may not

erect barriers that impede the right of access of incarcer-

ated persons.” Id. at 235.

The right of access to the courts is the right of an indi-

vidual, whether free or incarcerated, to obtain access to the

courts without undue interference. The right of individuals

to pursue legal redress for claims that have a reasonable

20 No. 01-1688

basis in law or fact is protected by the First Amendment

right to petition and the Fourteenth Amendment right to

substantive due process. See Vasquez v. Hernandez, 60 F.3d

325, 328 (7th Cir. 1995); see also Johnson v. Atkins, 999

F.2d 99, 100 (5th Cir. 1993) (“Meaningful access to the

courts is a fundamental constitutional right, grounded in

the First Amendment right to petition and the Fifth and

Fourteenth Amendment due process clauses.”). The Fifth

Circuit’s discussion in Jackson v. Procunier, 789 F.2d 307

(5th Cir. 1986), is particularly instructive. In Jackson, a

prisoner alleged that he was deprived of his constitutional

right of access to the courts when personnel in the prison

mailroom intentionally delayed his petition to proceed in

forma pauperis and the delay resulted in the dismissal of

his state appeal from an adverse civil judgment. The district

court interpreted the prisoner’s claim as a negligent depri-

vation of property without due process and dismissed the

complaint for failure to state a claim because there was an

adequate post-deprivation state remedy. The Fifth Circuit

reversed, holding that the complaint stated a viable cause

of action for the intentional deprivation of the prisoner’s

constitutional right of access to the courts, in violation of

the First Amendment and substantive due process. Id. at

308. The court squarely rejected the defendants’ contention

that a prisoner’s right of access to the courts is limited to

the presentation of constitutional, civil rights and habeas

corpus claims, stating that “[r]ecognition of the constitu-

tional right of access to the courts . . . long precedes

Bounds, and has from its inception been applied to civil as

well as constitutional claims.” Id. at 311.11

11

Along with our colleagues in the Fourth Circuit, see Pink v.

Lester, 52 F.3d 73, 76 (4th Cir. 1995), we have made clear that an

allegation of simple negligence will not support a claim that an

official has denied an individual of access to the courts. See

(continued...)

No. 01-1688 21

Having rejected Mr. Nolen’s narrow view of prisoners’

right to access, we next must consider whether the constitu-

tional right to access is sufficiently broad to encompass Mr.

Snyder’s claim. For the reasons set forth in the separate

opinions that follow, the majority of the panel concludes

that Mr. Snyder’s complaint does not state a claim for

violation of his constitutional right of access to the courts.

The judgment of the district court therefore is affirmed.

EASTERBROOK, Circuit Judge, concurring in part and

concurring in the judgment. I join the Per Curiam opinion.

That joint opinion leaves off at the question whether a

clerk’s failure to file a complaint violates the due process

clause by denying the plaintiff “access” to the courts. Nolen

11

(...continued)

Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir. 1992) (holding that an

isolated incident of negligence resulting in failure to file complaint

did not rise to the level of a constitutional violation); see also Lee

X v. Casey, 771 F. Supp. 725, 729 (E.D. Va. 1991) (holding that

negligent conduct by deputy clerk of court in failing to file letter

as a notice of appeal did not give rise to a constitutional claim for

violation of access to the courts). Although the pro se complaint in

this case is not a model of clarity, we believe that it cannot be

characterized fairly as alleging mere negligence on the part of Mr.

Nolen. Cf. Gregory v. Nunn, 895 F.2d 413, 415 n.2 (7th Cir. 1990)

(noting in access to courts context that pleading requisite intent

“need not detain our review of a Rule 12(b)(6) dismissal” and

holding that the plaintiff’s complaint stated a viable claim for

deprivation of the right of access to the courts).

22 No. 01-1688

returned Snyder’s complaint; this was a mistake as a mat-

ter of Illinois law. But errors of state law differ from of-

fenses against the Constitution. Clerks (and judges too) are

fallible; litigants have “access” to the court when there are

avenues to correct mistakes.

What Nolen did has parallels in many courts’ practice.

The Clerk of the Supreme Court returns, without filing,

petitions that he believes to be untimely or procedurally

deficient, see Sup. Ct. R. 1.1, and until a recent amendment

to Fed. R. Civ. P. 5(e) clerks of other federal courts screened

documents for compliance with the federal rules and

returned those that flunked. (The Clerk of the Supreme Court

of Illinois still has that authority. Ill. Sup. Ct. R. 131(a).)

How can those gatekeeping steps, or Nolen’s similar act, be

thought to deprive anyone of “access” to the courts, given the

litigant’s opportunity to ask a judge to direct the clerk to

accept and file the paper? It won’t do to say that Nolen’s

action was ultra vires while the Clerk of the Supreme Court

is authorized to return petitions. No public employee is

authorized to err, but all do occasionally; the Clerk of the

Supreme Court can slip up in thinking a given petition

deficient. The question is whether a public employee’s gaffe

in the application of state rules violates the fourteenth

amendment. That question has an established, and negative,

answer. See, e.g., DeShaney v. Winnebago County Depart-

ment of Social Services, 489 U.S. 189, 202 (1989); Snowden

v. Hughes, 321 U.S. 1, 11 (1944); Archie v. Racine, 847 F.2d

1211, 1215-18 (7th Cir. 1988) (en banc).

A forum that offers an opportunity to be heard before a

decision becomes final provides due process of law. Liti-

gants disappointed by the acts of a court’s administrative

staff have that opportunity. The Supreme Court entertains

motions to direct its Clerk to file documents. See Sup. Ct. R.

21. Only if the staff prevented the judiciary from seeing

such a request would there be a plausible claim that the

No. 01-1688 23

litigant lacked access to the courts. Yet Snyder does not

contend that Nolen would have refused to transmit a mo-

tion to a judge. Illinois authorizes judges to direct clerks to

file papers they have returned. 705 ILCS 25/11. Cf. Doe v.

Carlson, 250 Ill. App. 3d 570, 619 N.E. 2d 906 (2d Dist.

1994). As Nolen blundered by returning Snyder’s complaint,

a judge would have fixed things pronto. Instead of filing a

motion in state court, however, Snyder filed this federal suit

demanding money from the clerk. He is in the wrong

judicial system, seeking the wrong relief. Perhaps his lack

of counsel in the state litigation is responsible. Snyder’s

status as a legal amateur does not, however, excuse his

failure to take the steps provided or required by the judicial

system. See McNeil v. United States, 508 U.S. 106, 113

(1993). His ignorance of the right way to proceed certainly

does not support an award of damages against a clerk of

court.

My point is not that the opportunity to litigate in state

court is the process “due” for a completed wrong, à la Parratt

v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468

U.S. 517 (1984). That would pose the question whether,

after Christopher v. Harbury, 536 U.S. 403 (2002), and

Lewis v. Casey, 518 U.S. 343 (1996), access to the courts is

a procedural entitlement, to which Parratt and its successors

apply, or a substantive entitlement, to which they do not.

Instead my point is that opportunities to correct mistakes

before a suit reaches its conclusion means that there is no

constitutional problem in the first place. To see this consider

an example. The clerk must notify the parties immediately

on entering judgment, as the time to appeal starts with

entry. Sometimes, however, a clerk neglects that duty. It

was established doctrine for many years that litigants (and

their lawyers) are responsible for checking the docket to see

whether a decision has been made, and that they can’t take

a late appeal if the clerk errs. Today Fed. R. App. P. 4(a)(6)

allows reopening if the losing side acts within 180 days;

24 No. 01-1688

thereafter the judgment is beyond review. Each litigant’s

opportunity to protect his interests within the case

itself—by checking the docket often enough to make a

motion under Rule 4(a)(6) (and before that, by checking the

docket every 30 days)—means that the clerk’s error does not

deny anyone “access to the courts.” Just so here. Snyder could

have asked a judge to direct Nolen to file the pleading. That

option provides ready access to the courts.

Suppose that Nolen had accepted Snyder’s pleading and

that the judge had immediately dismissed it for failure to

state a claim, with the notation “[b]ecause there is a child

involved in this case, you must go thru [sic] an attorney for

a divorce.” (This is the same language Nolen used.) Suppose

further that Snyder had not asked for reconsideration— or

had appealed but not asked for expedition, and that his

spouse had squandered the assets before the appellate court

reversed. Would we say “Snyder suffered a denial of his

constitutional right of access to the courts, but judicial

immunity blocks relief”? I do not think so. We would say

that the opportunity to protest the initial misstep is the

access to the courts that the Constitution guarantees.

Access neither implies nor ensures an error-free process.

Here the clerk rather than the judge made the notation, but

the case was just beginning; Snyder had many options.

Electing to let the blunder stand without protest does not

bootstrap a mistake into a constitutional violation. The

State of Illinois did not deprive Snyder of “access” to its

courts; rather, it made an error in handling his suit. Errors

in the course of litigation may justify motions and appeals;

they do not support damages litigation under the federal

Constitution.

KANNE, Circuit Judge, concurring in part and concurring

in the judgment. I join the Per Curiam opinion. However,

I do agree with my colleague, Judge Ripple, that Christopher

No. 01-1688 25

v. Harbury, 536 U.S. 403 (2002) provides the template for

the analysis of this case, and therefore find compelling a

good portion of his separate opinion carefully laying out

Christopher’s approach to determining whether a complaint

states a right-to-access claim (see dissenting opinion, section

I. A.) and applying Christopher to the matter before us (see

id. at sections I. B. 1. and 2.). I also agree with Judge

Ripple’s discussion of the distinction between Christopher

and Parrett v. Taylor, 451 U.S. 527 (1981) (see id. at section

I. B. 3. a.).

Where Judge Ripple and I part company is in the appli-

cation of the third prong of the Christopher test for deter-

mining whether Mr. Snyder’s second amended complaint

states a right-to-access claim (see id. at section I. B. 3. b.).

As Judge Ripple cogently explains, that third element requires

Mr. Snyder to request a remedy awarded as recompense for

the denial of access to the courts (and, hence, the frustra-

tion of his underlying claim), but that remedy must not

otherwise be available through other litigation. Christopher,

536 U.S. at 415. Unlike Judge Ripple, I do not believe Mr.

Snyder has met this threshold based on the facts of this

case—facts that in salient respects mirror those of the

unsuccessful plaintiff in Christopher.

Mr. Snyder sought, as relief in his underlying claim against

his then-wife, a temporary restraining order preventing her

from dissipating his assets allegedly covered by a valid

prenuptial agreement. This form of relief—which seeks, at

a specific moment in time, to stop the defendant’s adverse

behavior—is similar to the injunction sought by the plaintiff

in Christopher. There, the plaintiff claimed that the relief

she would have sought in the underlying action against the

government, had she not been frustrated by its deceptive

and misleading statements, was an injunction preventing

her husband’s murder. Id. at 419.

26 No. 01-1688

The Christopher Court recognized that the plaintiff’s

right-to-access claim, brought after her husband’s death,

could not possibly provide her the relief she would have

originally sought—an injunction stopping his murder. As

the Court stated:

It is true that she cannot obtain in any present tort

action the order she would have sought before her

husband’s death, the order that might have saved her

husband’s life. But neither can she obtain any such

order on her access claim, which therefore cannot

recompense [her] for the unique loss she claims as

a consequence of her inability to bring an [ ] action

earlier.

Id. at 421-22. Because that time-sensitive opportunity was

lost forever, all that remained to compensate the plaintiff

for the alleged denial of access to the courts was primarily

money damages. That, the Court determined, was available

through other causes of action already pending against the

government, thus eliminating any basis for a separate

right-to-access claim. Id. at 422.

Like the plaintiff in Christopher, Mr. Snyder claims he

has lost the time-sensitive opportunity to prevent his former

wife from dissipating his assets. That moment being gone,

what he attempts to recover in his right-to-access suit is

money damages equal to his lost property. Yet, the relief he

now seeks on his federal constitutional access claim was

obtainable in state court through other non-constitutional

claims against his former wife, such as a suit for breach of

the prenuptial agreement. Under such circumstances, where

more than one avenue remained open for the recovery of

monetary damages at the time of the filing of the constitu-

tional access claim, Mr. Snyder was, ipso facto, not deprived

of his constitutional right of access to the courts.

Although this case was disposed of in the district court on

other grounds, the dismissal of Mr. Snyder’s second

No. 01-1688 27

amended complaint was proper under the third prong of

Christopher, as described above.

RIPPLE, Circuit Judge, dissenting. Because I believe that

Mr. Snyder’s complaint states a claim for a constitutional

violation of his right to access to the courts and that Mr.

Nolen is not entitled to qualified immunity on that claim, I

respectfully dissent.

I

A.

Recent Supreme Court guidance, not available to my

colleague in the district court at the time of his decision,

sets forth criteria that a court must consider in determining

whether a plaintiff has set forth a viable claim of right to

access to the courts. Specifically, in Christopher v. Harbury,

536 U.S. 403 (2002), the Supreme Court had occasion to

delineate with more precision than in its earlier cases the

requirements for stating a viable cause of action for depri-

vation of the right of access to the courts. In Christopher,

the widow of a murdered Guatemalan citizen brought a

Bivens action in which she alleged, among other things,

that certain federal officials had concealed and covered up

information regarding her husband’s kidnaping, torture and

death. She further alleged that this concealment had denied

her the right of access to the courts. The complaint, brought

after the husband’s death, alleged that the official deception

had denied the plaintiff access to the courts “by leaving her

28 No. 01-1688

without information, or reason to seek information, with

which she could have brought a lawsuit that might have

saved her husband’s life.” Id. at 405. The Supreme Court

held that the complaint did not state an actionable claim for

denial of access to the courts for two reasons: (1) the

complaint failed “to identify an underlying cause of action

for relief that the plaintiff would have raised had it not

been for the deception alleged,” and (2) the plaintiff failed

“to seek any relief presently available for denial of access to

courts that would be unavailable otherwise.” Id. at 405-06.

Noting that its decisions have grounded the right of access

to the courts in the Article IV Privileges and Immunities

Clause, the First Amendment, and the Due Process Clauses

of the Fifth and Fourteenth Amendments, see id. at 415 n. 12,

the Court further observed that access-to-courts claims

fall into two categories. One type seeks to eliminate “sys-

temic official action [that] frustrates a plaintiff or plaintiff

class in preparing and filing suits at the present time.” Id.

at 413. The Court explained that, in cases of this sort, “[t]he

opportunity has not been lost for all time, [ ] 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 type aims to compensate a plaintiff for wrongful

official conduct that has caused the plaintiff to lose a

litigation opportunity. See id. at 413-14. “The official acts

claimed to have denied access may allegedly have caused

the loss or inadequate settlement of a meritorious case, the

loss of an opportunity to sue, or the loss of an opportunity

to seek some particular order of relief.” Id. at 414 (internal

citations omitted). The Court explained that “[t]hese cases

do not look forward to a class of 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. The ultimate object of

No. 01-1688 29

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. (internal footnotes omitted).

In either case, “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 Court made clear that, in all cases, the

constitutional 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,” and thus, “the

underlying cause of action, whether anticipated or lost, is an

element that must be described in the complaint, just as

much as allegations must describe the official acts frustrat-

ing the litigation.” Id. at 415. The Court also made clear

that, when the access claim looks backward to a lost

litigation opportunity, “the complaint must identify a remedy

that may be awarded as recompense but not otherwise

available in some suit that may yet be brought.” Id. The

Court reasoned that there is “no point in spending time and

money to establish the facts constituting denial of access

when a plaintiff would end up just as well off after litigat-

ing a simpler case without the denial-of-access element.” Id.

Applying these standards to the facts in Christopher, the

Court determined that the plaintiff’s complaint “did not

come even close to stating a constitutional claim for denial

of access upon which relief could be granted.” Id. at 418.

First, “the complaint failed to identify the underlying cause of

action that the alleged deception had compromised, going

no further than the protean allegation that the State

Department and NSC defendants’ ‘false and deceptive in-

formation and concealment foreclosed Plaintiff from effec-

tively seeking adequate legal redress.’ ” Id. The complaint

left the court and the defendants “to guess at the unstated

cause of action supposed to have been lost, and at the rem-

30 No. 01-1688

edy being sought independently of relief that might be

available on the 24 other counts set out in the complaint.” Id.

Second, even if the court of appeals accepted the plaintiff’s

allegation during oral argument that she “would have brought

an action for intentional infliction of emotional distress as

one wrong for which she could have sought the injunctive

relief that might have saved her husband’s life,” id. at 419,

the plaintiff “could not satisfy the requirement that a back-

ward-looking denial-of-access claim provide a remedy that

could not be obtained on an existing claim,” id. at 420-21.

The Court reasoned that the plaintiff’s complaint presently

included a claim for intentional emotional distress and that

she could seek damages based on this cause of action. See

id. at 421. The Court recognized that the plaintiff could not

“obtain in any present tort action the order she would have

sought before her husband’s death, the order that might

have saved her husband’s life.” Id. However, the Court

pointed out that “neither can she obtain any such order on

her access claim, which therefore cannot recompense [the

plaintiff] for the unique loss she claims as a consequence of

her inability to bring an intentional-infliction action ear-

lier.” Id. at 421-22. Because “the access claim [could not]

address any injury she has suffered in a way the presently

surviving intentional-infliction claims cannot,” the plaintiff

was “not entitled to maintain the access claim as a substi-

tute, backward-looking action.” Id. at 422.

In sum, in order to state a claim for backward-looking

denial of access under Christopher, a party must identify in

the complaint: (1) a nonfrivolous, underlying claim, (2) the

official acts frustrating the litigation, and (3) a remedy that

may be awarded as recompense but that is not otherwise

available in a future suit. See id. at 415; see also Neaves v.

City of San Diego, No. 02-55512, 2003 WL 21500201, at *1

(9th Cir. June 27, 2003).

No. 01-1688 31

B.

1. Underlying claim

With these principles in mind, I turn to the facts of the

case at hand. In Christopher, the Court made clear that, in

a backward-looking access case such as this one, the

complaint must state the underlying claim in accordance

with the requirements of Rule 8(a) of the Federal Rules of

Civil Procedure to the same degree as if the underlying

claim was being pursued independently. See Christopher,

536 U.S. at 417. In short, the complaint must set forth a

“short and plain statement of the claim.” Id. at 418 (quoting

Fed. R. Civ. P. 8(a)). Christopher thus requires that the

underlying cause of action “must be addressed by allega-

tions in the complaint sufficient to give fair notice to a

defendant.” Id. at 416. The statement also must be suffi-

ciently specific to ensure that the district court can ascertain

that the claim is not frivolous and that the “the ‘arguable’

nature of the underlying claim is more than hope.” Id.

Upon examination of the complaint, I believe that Mr.

Snyder has met this requirement of Christopher. In his

second amended complaint, Mr. Snyder alleged that he had

attempted to file a petition for dissolution of marriage and

a temporary restraining order to prevent his wife “from

illegally dissipating his assets, all being covered by a fully

executed prenuptial agreement.” R.22. Mr. Snyder further

alleged that he “had attached the proper filing fee” and that

“there was no constitutionally permissible reason for

defendant Nolen to refuse to file plaintiff’s case.” Id.

Furthermore, Mr. Snyder attached to his second amended

complaint the pleadings that he had attempted to file in the

state court. In these documents, Mr. Snyder alleged that his

wife was “guilty of extreme and repeated mental cruelty in

that she refuses to speak or correspond with [him], and had

refused to send money to [him] despite his $350/month

mortgage payments,” that his wife was “in sole possession

of all the property to which [he] claim[ed] as his pursuant

32 No. 01-1688

to the referenced prenuptial agreement,” that he had

“revoked a Power of Attorney given to [his wife], but [she]

retain[ed] the document purporting to give her power of

attorney over [his] affairs,” that his wife had “indicated to

[his] friends that she would sell some of [his property],

despite agreements not to sell anything without prior

authorization from [Snyder],” and that he would “suffer

irreparable injury if such temporary restraining order is not

granted.” Id. These allegations, which properly are consid-

ered part of Mr. Snyder’s complaint,1 are certainly sufficient

to identify the underlying claim in which access to the state

court allegedly was denied.

2. Official acts

The second requirement articulated in Christopher is also

met in the present case. Mr. Snyder’s complaint clearly

alleges the official acts that frustrated the underlying liti-

gation. Specifically, the complaint alleges that Mr. Nolen

removed Mr. Snyder’s pleadings from the court’s docket and

returned them to Mr. Snyder with a note attached that

stated that “[b]ecause there is a child involved in this case,

you must go thru [sic] an attorney for a divorce.” R.22. The

complaint further alleges that “[t]here existed no written

nor official policy that a similarly situated person as the

plaintiff had to have an attorney to file a dissolution action

when a child was involved,” and that Mr. Nolen had

removed Mr. Snyder’s pleadings from the court’s docket

1

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument

which is an exhibit to a pleading is a part thereof for all pur-

poses.”); Thompson v. Illinois Dep’t of Prof ’l Regulation, 300 F.3d

750, 753 (7th Cir. 2002) (stating that the complaint includes any

exhibits attached thereto); Beam v. IPCO Corp., 838 F.2d 242, 244

(7th Cir. 1988) (same); Moran v. London Records, Ltd., 827 F.2d

180, 181 (7th Cir. 1987) (same); English v. Local Union No. 46,

654 F.2d 473, 477 (7th Cir. 1981) (same).

No. 01-1688 33

“without consulting any judge [or] state attorney as to the

propriety of his actions in denying plaintiff’s access to

court.” Id.

3. Remedy available

Finally, Christopher requires that we consider whether

Mr. Snyder’s complaint identifies, at the level of specificity

required by Rule 8 (a), see Christopher, 536 U.S. at 417-18,

a remedy that may be awarded as recompense in a denial-

of-access case that would not be available in any other

future litigation.

This requirement of Christopher requires that a court

ascertain whether the plaintiff can maintain any other

action against the defendant who caused the deprivation

alleged in the underlying cause of action. If such a cause of

action exists and if the plaintiff can bring such a cause of

action to achieve the remedy sought in the underlying cause

of action, there is no remedy unique to a right-of-access

claim. In Christopher, for example, the plaintiff was unable

to describe any relief that she could get through the mainte-

nance of a right-of-access claim that she could not get from

her still viable causes of action against the original defen-

dants. Here, Mr. Snyder must demonstrate that he can

obtain a remedy in this denial-of-access claim that he could

not receive through the maintenance of another cause of

action against his former wife.

a. Distinction between Christopher and Parratt

v. Taylor

This requirement, although superficially similar to the

paradigm employed in the procedural due process context,

see Parratt v. Taylor, 451 U.S. 527 (1981); Easter House v.

Felder, 910 F.2d 1387 (7th Cir. 1990) (en banc), is analyti-

cally quite distinct. Indeed, the Court in Christopher un-

derstandably makes no allusion to these due process cases.

34 No. 01-1688

Parratt and its progeny stand for the proposition that a

random and unauthorized deprivation of property by a state

employee does not constitute a violation of procedural due

process so long as the state provides a meaningful post-

deprivation remedy for the loss. The paradigm is based on

the premise that a denial of due process does not take place

unless and until there has been the denial of an adequate

state remedy against the individual who has caused the

deprivation. By contrast, the paradigm employed by the

Supreme Court in the denial-of-access context of Christopher

asks not whether there is an alternate remedy against the

individual who has denied access to the court, but whether

there remains, despite the denial of access, a viable alter-

native remedy against the alleged wrongdoer identified in

the original suit.

This distinction is quite compatible with the well-estab-

lished case law before Christopher, a jurisprudence that the

Supreme Court quite appropriately left undisturbed in

Christopher. Specifically noting that it had surveyed the

jurisprudence of the lower courts dealing with the right of

access to the courts, see Christopher, 536 U.S. at 413, the

Justices left undisturbed the significant body of circuit case

law that had held that the paradigm of Parratt is not

applicable to actions alleging a denial of the right of access

to courts.2

2

Several circuits have held that Parratt “is irrelevant when the

plaintiff has alleged a violation of some substantive constitutional

proscription.” Augustine v. Doe, 740 F.2d 322, 329 (5th Cir. 1984)

(refusing to extend Parratt’s exhaustion of state remedies

requirement to a substantive due process claim premised on a

violation of the Fourth Amendment); see also Kauth v. Hartford

Ins. Co. of Illinois, 852 F.2d 951, 958 (7th Cir. 1988) (“[I]f sub-

stantive constitutional rights are violated, the constitutionally

recognized deprivation is complete at the time of the action, irre-

(continued...)

No. 01-1688 35

2

(...continued)

spective of the procedures available before or after the depriva-

tion.” (internal quotations omitted)); Morello v. James, 810 F.2d

344, 348 (2d Cir. 1987) (“Intentional substantive violations of

constitutional rights are not subject to the rule of Parratt.”); Pruitt

v. City of Montgomery, 771 F.2d 1475, 1484 n.19 (11th Cir. 1985)

(“[I]t is clear that the rationale of Hudson [v. Palmer, 468 U.S. 517

(1984),] and Parratt does not apply to alleged violations of substan-

tive constitutional rights, such as the Fourth Amendment rights

implicated here.”).

Parratt has been limited to the area of procedural due process.

The case law of this court admits to but one exception to ths rule.

In order to not eviscerate the holding of Parratt, we have held that

“[w]hen a plaintiff brings a substantive due process claim

predicated on the deprivation of a state-created property interest,

she must show that the state violated some other substantive con-

stitutional right or that state law remedies are inadequate.” Veterans

Legal Def. Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003); see

also Gable v. City of Chicago, 296 F.3d 531, 541 (7th Cir. 2002); New

Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474,

1480 (7th Cir. 1990); Kauth, 852 F.2d at 958. In these cases, it is

sound to impose the additional requirement because the substan-

tive right “comes not from the Constitution, but from state law.”

Schaper v. City of Huntsville, 813 F.2d 709, 718 (5th Cir. 1987).

Indeed, many circuits squarely have held that Parratt does not

apply to claims for denial of access to the courts. See Zilich v.

Lucht, 981 F.2d 694, 696 (3d Cir. 1992) (“Where, as in the case at

hand, a prisoner’s complaint alleges the taking of legal property

that results in the denial of his access to the courts, the Parratt/

Hudson analysis cannot, and does not, apply.”); Harrison v.

Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1428 n.10 (8th

Cir. 1986) (“Since the Harrisons have alleged a violation of a

substantive constitutional right independent of the Fourteenth

Amendment due process clause simpliciter, the existence of an

adequate state remedy under the Parratt analysis is irrelevant.”);

Simmons v. Dickhaut, 804 F.2d 182, 185 (1st Cir. 1986) (“That

Simmons’ legal property was taken does not convert this case to a

(continued...)

36 No. 01-1688

2

(...continued)

procedural due process/deprivation of property claim. It is decisive

that the harm complained of is not simply the taking of property,

protected by the due process clause, but the taking of legal

property resulting in denial of access to the courts, protected as a

substantive, constitutional right. And the Parratt analysis does

not apply where the alleged violation concerns a substantive,

fundamental right.” (internal citation omitted)); Jackson v.

Procunier, 789 F.2d 307, 310 (5th Cir. 1986) (holding that Parratt

does not apply to a claim for intentional denial of access to the

courts). The only opinion that is directly to the contrary is a

concurring opinion from the Sixth Circuit. In Skewel v. City of

River Rouge, 119 F.3d 1259 (6th Cir. 1997), the plaintiff alleged

that the defendants denied her access to the courts by concealing

certain evidence relating to her husband’s death. The court held

that the plaintiff ’s failure to make some attempt to gain access to

the courts prevented her recovery. See id. at 1264. The court rea-

soned that “[a] plaintiff cannot merely guess that a state court

remedy will be ineffective because of a defendant’s actions.

Rather, the plaintiff must present evidence that the defendant’s

actions actually rendered any available state court remedy

ineffective.” Id. In a concurring opinion, Judge Merritt criticized

the court for failing to make clear that the rationale of Parratt

applies with equal force to right-of-access claims. He reasoned:

The standard for a “right-of-access-to-the-courts” claim,

whether treated under the First Amendment as part of

the right “to petition the government for a redress of

grievances” or as a procedural due process claim, should

require that the plaintiff allege and prove that the state’s

judicial process does not provide fair procedures to rem-

edy the wrong alleged. Proof of the lack of adequate state

remedies is required by Hudson v. Palmer, 468 U.S. 517,

104 S.Ct. 3194, 82 L.Ed. 393 (1984), and Vicory v. Walton,

721 F.2d 1062 (6th Cir. 1983), in procedural due process

cases and should be required in judicial access cases. It

seems elementary that the federal right of access to the

courts is not abridged when the state courts remain just

(continued...)

No. 01-1688 37

This reading of Christopher is also consistent with the

Supreme Court’s overall approach in Christopher. In

Christopher, the plaintiff had several claims pending against

the defendants for direct harm (including intentional in-

fliction of emotional distress) in addition to her denial-of-ac-

cess claim. The plaintiff’s denial-of-access claim was not

premised on the loss of an opportunity to sue, but rather, on

“the loss of an opportunity to seek some particular order of

relief.” Id. at 414. Although the plaintiff could not “obtain

in any present tort action the order she would have sought

before her husband’s death, the order that might have

saved her husband’s life,” neither could she “obtain any such

order on her access claim.” Id. at 421. Thus, any relief the

plaintiff could obtain on her access claim, she also could obtain

on the counts for direct harm currently pending against the

defendants in the district court.

b. Remedy available to Mr. Snyder

I believe that Mr. Snyder, acting pro se, and without the

guidance of Christopher, which was rendered long after the

district court ruled, has met, albeit minimally, the require-

ment that he show that the remedy he seeks in this denial-

of-access case is not available to him in a lawsuit against

his former wife. In this respect it must be recalled that, in

his initial complaint in state court, Mr. Snyder sought

immediate injunctive relief against his then-wife on the

ground that she was in sole possession of his assets, had a

power of attorney and, unless stopped by a judicial order,

would dissipate those assets. Despite the laconic nature of

his pro se complaint, Mr. Snyder did state in his brief in

2

(...continued)

as open to provide a remedy as the federal courts.

Id. at 1265 (Merritt, J., concurring).

38 No. 01-1688

opposition to Mr. Nolen’s motion to dismiss that a writ of

mandamus “would not have been effective as plaintiff’s

former wife is believed to have liquidated and dissipated

assets at the time plaintiff attempted to obtain the requested

relief and she left the jurisdiction of Saline County within

a few months thereafter.” R.27. This court has held that

“facts alleged in a brief in opposition to a motion to dismiss

(indeed, even facts alleged for the first time on appeal) as

well as factual allegations contained in other court filings

of a pro se plaintiff may be considered when evaluating the

sufficiency of a complaint so long as they are consistent

with the allegations of the complaint.” Gutierrez v. Peters,

111 F.3d 1364, 1367 n.2 (7th Cir. 1997).3 I believe that these

allegations, when read as we must read pro se submissions,

adequately set forth Mr. Snyder’s allegations that Mr.

Nolen’s actions deprived him of a time-sensitive opportunity

to secure his assets before they were dissipated by his

former wife. In short, Mr. Snyder has alleged that, because

he was unsuccessful in obtaining immediate judicial control

of his property because of Mr. Nolen’s actions, he has

suffered an injury that only can be remedied completely by

a denial-of-access action against Mr. Nolen. At this stage of

the proceedings, the court must accept this allegation.4

3

See also Murphy v. Walker, 51 F.3d 714, 718 n.8 (7th Cir. 1995)

(“[W]e may, when reviewing 12(b)(6) dismissals, consider new

factual allegations raised for the first time on appeal provided

they are consistent with the complaint.” (internal quotation marks

omitted)); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992)

(“[T]he court should consider allegations contained in the other

court filings of a pro se plaintiff, such as those in Swofford’s Ob-

jections to the Report and Recommendation of the magistrate

judge.”).

4

The burden of proving the inadequacy of other relief falls on Mr.

(continued...)

No. 01-1688 39

C.

1. Causation requirement

Having explored the requirements of Christopher, there

remains one more issue that we must confront with respect

to the adequacy of the allegation of a denial of access to the

courts. As we have noted earlier, the case law requires that

a plaintiff establish that he actually was injured by the

activity that constituted the denial of access. Here,

Mr. Snyder will have to demonstrate at some point in the

litigation that the alleged harm was caused by the alleged

action of Mr. Nolen rather than as a result of his own fail-

ure to seek immediate redress from Mr. Nolen’s decision

through a petition for writ of mandamus to the state trial

court. Our case law makes clear that the imposition of an

exhaustion requirement on a fundamental right such as the

constitutional right of access to the courts is not permissi-

ble. See Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951,

958 (7th Cir. 1988) (“[I]f substantive constitutional rights are

violated, the constitutionally recognized deprivation is

complete at the time of the action, irrespective of the

procedures available before or after the deprivation.”

(internal quotations omitted)). Nevertheless, the Supreme

4

(...continued)

Snyder. If the parties were to discover, either through the

deposition of Mr. Snyder’s former wife and/or a subpoena duces

tecum served upon her pursuant to Federal Rule of Civil Proce-

dure 45, that she has not “dissipated” Mr. Snyder’s assets, or that

she retains sufficient assets to compensate Mr. Snyder for his loss,

then Mr. Snyder would be able to secure adequate relief through

other means. In that event, the evidence would not substantiate

Mr. Snyder’s allegation that he has suffered an injury which can

be remedied only through a denial-of-access action, and Mr. Nolen

would be entitled to judgment as a matter of law. Indeed, al-

though in my opinion not susceptible to dismissal, this matter

may well be susceptible to resolution at summary judgment.

40 No. 01-1688

Court has acknowledged that a showing of “actual injury”

is a prerequisite to the maintenance of a cause of action for

denial of access to the courts. See Lewis v. Casey, 518 U.S.

343, 349 (1996).

In Lewis, the Supreme Court held that an inmate claim-

ing denial of access to the courts “cannot establish relevant

actual injury simply by establishing that his prison’s law

library or legal assistance program is subpar in some

theoretical sense.” Id. at 351. Instead, the inmate “must go

one step further and demonstrate that the alleged shortcom-

ings in the library or legal assistance program hindered his

efforts to pursue a legal claim.” Id. Expounding upon the

type of injury that would satisfy this requirement, the

Court stated: “He might show, for example, that a com-

plaint he prepared was dismissed for failure to satisfy some

technical requirement which, because of deficiencies in the

prison’s legal assistance facilities, he could not have known.

Or that he had suffered arguably actionable harm that he

wished to bring before the courts, but was so stymied by

inadequacies of the law library that he was unable even to

file a complaint.” Id.

Following Lewis, this court stated in Tarpley v. Allen

County, 312 F.3d 895, 899 (7th Cir. 2002), that no violation

of the right of access to the courts occurs “in the absence of

actual injury, by which [the Supreme Court] means the

hindrance of efforts to pursue a nonfrivolous legal claim.”

Applying this standard, the court went on to hold that

“[w]hile the jail’s lack of resources might have posed a

theoretical problem, . . . without evidence that the defen-

dants prevented him from pursuing a nonfrivolous legal

action, he cannot show that his constitutional right was

violated.” Id. Similarly, in May v. Sheahan, 226 F.3d 876,

883 (7th Cir. 2000), we stated that, in order to prove a vio-

lation of the right of access to the courts, “a plaintiff must

demonstrate that state action hindered his or her efforts to

No. 01-1688 41

pursue a nonfrivolous legal claim and that consequently the

plaintiff suffered some actual concrete injury.” Applying

this standard, the court held that the plaintiff’s allegation

that he “has been detained longer than would otherwise be

necessary if he could go to court” was “sufficient to state an

access to the courts claim.” Id. Although these cases fall

within the first category of denial-of-access cases as Christo-

pher describes them, see Christopher, 536 U.S. at 413-14,

this fundamental requirement that the plaintiff show that

he was harmed by the actions of the defendant endures.

2. Application

Mr. Nolen’s alleged act of removing Mr. Snyder’s plead-

ings from the court’s docket clearly hindered Mr. Snyder’s

efforts to pursue a nonfrivolous legal claim. It is not clear,

however, that Mr. Nolen’s act was sufficient to cause Mr.

Snyder “actual injury.” Illinois provides its litigants with a

specific remedy through a writ of mandamus to address

situations such as the one that Mr. Snyder allegedly faced

when Mr. Nolen withdrew his papers without the court’s

permission. See 705 Ill. Comp. Stat. 25/11. Although Mr.

Snyder makes no reference to this remedy in his second

amended complaint, he did state in his brief in opposition to

Mr. Nolen’s motion to dismiss that a writ of mandamus

“would not have been effective as plaintiff’s former wife is

believed to have liquidated and dissipated assets at the

time plaintiff attempted to obtain the requested relief and

she left the jurisdiction of Saline County within a few months

thereafter.” R.27. As noted earlier, facts alleged in a brief in

opposition to a motion to dismiss may be considered in

assessing the adequacy of the complaint. Thus, I believe

that Mr. Snyder’s complaint alleges, albeit minimally, that

it was Mr. Nolen’s action that deprived Mr. Snyder of the

opportunity to obtain viable relief from the state court. Need-

42 No. 01-1688

less to say, an allegation is hardly proof, but at this stage of

the proceedings, the pleading is adequate to avoid dismissal.

II

Because I believe that at least at the pleading stage, the

operative version of the complaint states adequately the

deprivation of the federal constitutional right of access to

the courts, I also would reach the question of qualified im-

munity—whether the law was sufficiently clear, at a mean-

ingful level of generality, that the alleged actions of Mr.

Nolen amounted to a deprivation of Mr. Snyder’s right of

access to the courts. As of 1996, it was clearly established

by Supreme Court precedent that the First Amendment

right to petition the government includes the right to file

civil actions that have a reasonable basis in law or fact.

Also, lower court cases, including John L. v. Adams, 969

F.2d 228 (6th Cir. 1992), and Jackson v. Procunier, 789 F.2d

307 (5th Cir. 1986), made clear that this right extended to

prisoners, and there was no reason to believe otherwise.

There is certainly no more direct way to interfere with a

plaintiff’s access to the courts than to refuse to file his

pleadings or to remove them from the docket once filed.

Conclusion

For these reasons, I would reverse the judgment of the

district court and remand the case to the district court for

further proceedings.

No. 01-1688 43

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-13-04