Ortloff v. U.S.

• Citation: 335 F.3d 652
• Decision Date: 11 July 2003
• Docket Number: No. 01-2725.,01-2725.
• Parties: Robert S. ORTLOFF, Plaintiff-Appellant, v. UNITED STATES of America, Robert Barrix, Thomas Johnson, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

335 F.3d 652

Robert S. ORTLOFF, Plaintiff-Appellant, v. UNITED STATES of America, Robert Barrix, Thomas Johnson, et al., Defendants-Appellees.

No. 01-2725.

United States Court of Appeals, Seventh Circuit.

Argued February 13, 2003.

Decided July 11, 2003.

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William E. Padgett (argued), Barnes & Thornburg, Indianapolis, IN, for Plaintiff-Appellant.

Jacob M. Lewis, Kathleen A. Kane (argued), Dept. of Justice, Civil Div., Appellate Section, Washington, DC, for Defendants-Appellees.

Before COFFEY, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Robert S. Ortloff, a federal prisoner, sued the United States and several prison officials under the Federal Tort Claims Act, 28 U.S.C. § 2680, seeking damages for the prison officials' alleged destruction of his personal property. Because some of the property allegedly destroyed included materials related to several of Ortloff's pending lawsuits, he also alleged an access-to-courts claim. The district court dismissed Ortloff's access-to-courts claim and, following a bench trial, ruled in favor of the defendants on the merits of Ortloff's FTCA claim. Ortloff appeals. We affirm.

I.

During 1999, Robert Ortloff was serving a prison sentence in the Federal Correctional Institute Oxford, in Oxford, Wisconsin. On July 13 of that year, Officer Robert Barrix, a prison guard at Oxford, searched Ortloff's cell and discovered 25 books of stamps, which exceeded the number allowed under prison rules. After making this find, Officer Barrix secured Ortloff's cell and reported the contraband to the operations lieutenant, who directed Officer Barrix to immediately transfer Ortloff to the Special Housing Unit ("SHU"). Ortloff was placed into administrative detention in the SHU at 8:20 that evening.

After Ortloff's transfer, Officer Barrix began inventorying Ortloff's property. He did this by placing Ortloff's personal property into cardboard boxes for transfer to the SHU and by completing an "Inmate Personal Property Form" for each box of materials. In packing the materials, Officer Barrix removed items he believed were government property, such as file folders and binders. He also removed paper clips and binder clips. By the end of his shift, Officer Barrix had inventoried and packed four boxes of Ortloff's property. Officer Thomas Johnson then picked up where Officer Barrix left off, completing the inventorying in a similar fashion. After the materials were boxed, prison officials transferred a total of thirteen boxes to the SHU.

Three days later, on July 16, 1999, Ortloff was released from the SHU. The property officer on duty at that time brought Ortloff ten boxes of non-contraband materials. The parties dispute what happened at this point: the government maintains that Ortloff declined to inventory his property, whereas Ortloff states that the property officer refused to allow him to review the materials. In any event, Ortloff noted on the property form that he had not reviewed the boxes and that prison officials had retained two boxes. Prison officials claim that those two boxes contained contraband and were mailed outside of the prison. However, they did return one additional box to Ortloff after he was released from the SHU.

Ortloff later filed suit against the United States and several prison officials, claiming that the defendants mishandled, damaged, and destroyed his personal property, including lawsuit-related documents relating to several pending habeas and civil rights actions he had filed. In his complaint, he alleged the following claims: the denial of his right of access-to-courts; intentional infliction of emotional distress; a tort claim for the damage or destruction of personal property; several miscellaneous constitutional claims; and a claim based on the defendants' alleged failure to follow administrative regulations. The district court dismissed Ortloff's access-to-courts claim because he had failed to allege any specific or identifiable harm to his pending lawsuits. As to Ortloff's claim for damage to his personal property, the district court concluded that Ortloff had stated a claim under the FTCA, but that the United States was the only proper defendant. Accordingly, it substituted the United States on this claim and dismissed the claim against the individual defendants. The district court then declined to exercise supplemental jurisdiction over Ortloff's state law intentional infliction of emotional distress claim, and also dismissed his administrative claim and other miscellaneous constitutional claims. After the district court dismissed Ortloff's access-to-courts claim, Ortloff filed a proposed amended complaint which the district court construed as a motion to reconsider its decision denying Ortloff leave to proceed in forma pauperis on his access-to-courts claim. The district court then reaffirmed its order dismissing Ortloff's access-to-courts claim.

This left only the FTCA claim against the United States. The United States moved to dismiss that claim for lack of jurisdiction, arguing that it had not waived sovereign immunity for a damage claim based on the destruction of goods by a prison official. The district court denied that motion, concluding that Ortloff could state a claim under the FTCA. The district court then held a bench trial on Ortloff's FTCA claim. Following trial, the district court directed a verdict in favor of the United States under Fed.R.Civ.P. 50. Ortloff appeals.

II.

On appeal, Ortloff challenges only two aspects of the district court's rulings. First, he argues that the district court erred in dismissing his access-to-courts claim. Second, he challenges the district court's ruling on the merits of his FTCA claim. We consider each argument in turn.

A. Access to Courts

Ortloff first challenges the district court's dismissal of his access-to-courts claim. The district court dismissed this claim under Rule 12(b)(6) because Ortloff did not allege any specific prejudice caused by the alleged destruction of his legal papers. We review the district court's ruling de novo. Del Raine v. Williford, 32 F.3d 1024, 1042 (7th Cir.1994).

Ortloff claims that the district court erred in dismissing his access-to-courts claim because he alleged that the defendants' confiscation, seizure and destruction of his legal materials severely prejudiced and adversely affected his ability to prosecute at least three pending lawsuits. This, Ortloff contends, is sufficient under the federal notice-pleading standards of Rule 8(a).

Although Ortloff is correct that Rule 8(a) merely requires a short, plain statement of the facts sufficient to put the defendants on notice of the claim, the facts alleged must nonetheless be sufficient to support a right to access-to-courts claim. As this court explained in Martin v. Davies, 917 F.2d 336 (7th Cir.1990), to state a right to access-to-courts claim and avoid dismissal under Rule 12(b)(6), a prisoner must make specific allegations as to the prejudice suffered because of the defendants' alleged conduct. Id. at 340. This is because a right to access-to-courts claim exists only if a prisoner is unreasonably prevented from presenting legitimate grievances to a court; various resources, documents, and supplies merely provide the instruments for reasonable access, and are not protected in and of themselves. Id. Thus, when a plaintiff alleges a denial of the right to access-to-courts, he must usually plead specific prejudice to state a claim, such as by alleging that he missed court deadlines, failed to make timely filings, or that legitimate claims were dismissed because of the denial of reasonable access to legal resources.¹ Id. at 341. Ortloff's general allegations of prejudice are insufficient under the precedent of this circuit. Accordingly, the district court properly dismissed Ortloff's right to access-to-courts claim.

B. FTCA Claim

In addition to his right to access-to-courts claim, Ortloff's complaint also presented a claim for the alleged destruction of his property under the FTCA. The government moved to dismiss this claim for lack of subject matter jurisdiction, arguing that it had sovereign immunity from suit and had not waived its immunity under the FTCA for claims such as the one Ortloff was pursuing. The district court rejected this argument, holding that it had jurisdiction under the FTCA to consider Ortloff's claim for damages stemming from the alleged destruction of his property. However, following a bench trial, the district court entered judgment in the government's favor on the merits, concluding that Ortloff failed to establish that the government had damaged or destroyed any of his property. Ortloff appeals from this judgment.

On appeal, the government first reasserts its claim of sovereign immunity from suit. The question of sovereign immunity concerns the subject matter jurisdiction of federal courts. LaBonte v. United States, 233 F.3d 1049, 1051 (7th Cir.2000) ("The United States government may be sued only where Congress has waived its sovereign immunity and the existence of such waiver is a `prerequisite for jurisdiction.'"). But see Clark v. United States, 326 F.3d 911, 913 (7th Cir.2003) (questioning whether statutory exceptions to liability under the FTCA concern a court's subject matter jurisdiction or the merits of the case). Therefore, before considering the merits of Ortloff's FTCA claim on appeal, we must first determine whether the district court properly exercised subject matter jurisdiction over Ortloff's claim.

"It is axiomatic that the United States as sovereign cannot be sued without its consent." Macklin v. United States, 300 F.3d 814, 820 (7th Cir.2002). Thus, "the United States government may be sued only where Congress has waived its sovereign immunity...." LaBonte, 233 F.3d at 1051. Congress has waived its immunity, in part, by enacting the FTCA in 1946. The FTCA "provides generally that the United States shall be liable, to...