Ripp v. Nickel

• Decision Date: 14 March 2012
• Docket Number: No. 10–cv–492–bbc.,10–cv–492–bbc.
• Citation: 838 F.Supp.2d 861
• Parties: Timothy Francis RIPP, Plaintiff, v. Janet NICKEL, Marc Clements, Gregory Grams, Al Morris, Anthony Ashworth and William Pollard, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

838 F.Supp.2d 861

Timothy Francis RIPP, Plaintiff,

v.Janet NICKEL, Marc Clements, Gregory Grams, Al Morris, Anthony Ashworth and William Pollard, Defendants.

No. 10–cv–492–bbc.

United States District Court,

W.D. Wisconsin.

March 14, 2012.

Timothy Francis Ripp, Waupun, WI, pro se.

Jody J. Schmelzer, Wisconsin Department of Justice, Madison, WI, for Defendant.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

The question before the court in this prisoner civil rights case is whether defendantWilliam Pollard is violating plaintiff Timothy Francis Ripp's constitutional right to have access to the courts by failing to provide him materials needed to litigate this case. Because I agree with plaintiff that Pollard is violating this right, I am granting plaintiff's motion to compel Pollard to provide the writing materials and postage that plaintiff needs to respond to defendants' motion for summary judgment and litigate the remainder of this case.

BACKGROUND

Plaintiff filed this case on August 27, 2010. Dkt. # 1. In an order dated September 22, 2010, I allowed plaintiff to proceed on a claim that defendants disciplined him for threatening to file a lawsuit, in violation of the First Amendment. Dkt. # 6. On June 6, 2011, defendants filed a motion for summary judgment on the ground that plaintiff's speech is not protected by the First Amendment or, in the alternative, that they are entitled to qualified immunity. Dkt. # 16. The court gave plaintiff until August 9, 2011, to file his response. Dkt. # 31.

On July 1, 2011, Wis. Stat. § 301.328(1m) went into effect:

No prisoner may receive more than $100 annually in litigation loans, except that any amount of the debt the prisoner repays during the year may be advanced to the prisoner again without counting against the $100 litigation loan limit. No prisoner may receive a litigation loan in any amount until he or she has repaid a prior loan in full or has made arrangements for repayment.

(Previously, § 301.328 did not include a limit on legal loans. Rather, loans were governed by Wis. Admin. Code § DOC 309.55, which imposed a $200 limit that could “be exceeded with the superintendent's approval if the inmate demonstrates an extraordinary need, such as a court order requiring submission of specified documents.”)

On August 4, 2011, plaintiff sent his summary judgment response to the mail room at the Columbia Correctional Institution so that it could be mailed using funds from his legal loan account. At the time, plaintiff had accrued more than $100 in legal loans. (The parties do not identify the amount of plaintiff's legal debt, but plaintiff says that he had a balance of approximately $110 in his legal loan account under the old system. Ripp Decl. ¶ 9, dkt. # 44.) On August 6, 2011, plaintiff's summary judgment materials were returned to him, accompanied by a memorandum dated July 6, 2011, from prison administrators regarding the effect of the new law. The memorandum stated that “legal loan extensions above $100 may be granted” in limited circumstances involving criminal cases, challenges to the legality of confinement and termination of parental rights. No exceptions were listed for litigation of civil rights actions. The Division of Adult Institutions has since issued a policy that identifies 14 exceptions to the $100 limit, dkt. # 34, exh. 108, but there is no dispute that none of these exceptions apply to plaintiff.

On August 10, 2011, plaintiff filed a letter with the court in which he explained why he was unable to file his summary judgment materials. Dkt. # 32. Plaintiff was able to file the letter because the Columbia prison allowed him to have one envelope, one ounce postage and two sheets of paper each week. Ripp Decl. ¶ 13, dkt. # 44. However, his summary judgment materials were approximately one hundred pages, so this postage was not sufficient to mail those documents. Id. In their response to plaintiff's letter, defendants acknowledged that prison administrators had denied postage to plaintiff, but they justified the denial under Wis. Stat. § 301.328(1m). Dkt. # 33.

On September 9, 2011, the court appointed counsel for plaintiff for the limited purpose of determining whether plaintiff was being denied access to the courts. Dkt. # 36. On October 6, 2011, plaintiff was transferred to the Waupun Correctional Institution, where he is not provided any writing supplies, envelopes, postage or photocopies. Ripp Decl. ¶ 13, dkt. # 44. (In a footnote in his brief, defendant Pollard says that prisoners in “specified statuses” at the Waupun prison receive one stamped envelope and two sheets of paper each week, but that plaintiff is not on any of those statuses. Dft.'s Br., dkt. # 46, at 4 n. 1.) On November 21, 2011, plaintiff filed a motion to add William Pollard, the warden of the Waupun prison, as a party in his official capacity, which the court granted. Dkt. 41 and 45. (Because Pollard is the only defendant relevant to plaintiff's motion, I will refer to him simply as “defendant” for the remainder of the opinion.) The same day, plaintiff filed his motion to compel, which is now fully briefed.

OPINION

Both the law and the facts relevant to plaintiff's motion are relatively straightforward. The Constitution guarantees prisoners a right to have “meaningful access to the courts.” Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir.2004). Although the exact source of this right has not always been clear, Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (noting that Court has grounded right in Article IV privileges and immunities clause, First Amendment petition clause, Fifth Amendment due process clause and Fourteenth Amendment equal protection and due process clauses), the importance of the right is obvious, particularly for prisoners.

“Because a prisoner ordinarily is divested of the privilege to vote, the right to file a court action might be said to be his remaining most ‘fundamental political right, because [it is] preservative of all rights.’ ” McCarthy v. Madigan, 503 U.S. 140, 153, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)). In other words, without the right to have access to the courts, any other rights a prisoner has are illusory because he has no way to enforce them.

In applying the right of access to the courts in the prison context, the Supreme Court has held that prison officials may not arbitrarily prevent prisoners from litigating a federal action, Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 85 L.Ed. 1034 (1941), or from seeking assistance in litigation. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). In addition to these prohibitions on interference, the Court has held that prison officials have an affirmative duty to provide prisoners “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). See also Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir.2009) (“[T]he right of access to the courts requires prison officials to provide prisoners with the necessary tools to attack their sentences, directly or collaterally, and to challenge the conditions of their confinement.”) (internal citations omitted). In Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Court explained that a prisoner cannot prove a violation of his right of access to the courts unless he identifies a nonfrivolous claim that was lost or is being impeded, but the Court did not disavow the right itself. See also Christopher, 536 U.S. at 412–13, 122 S.Ct. 2179 (in one type of access to courts claim, plaintiff alleges that “official action is presently denying an opportunity to litigate”).

Defendant's refusal to provide assistance to plaintiff in this case is a clear violation of one of the requirements set forth in Bounds, 430 U.S. at 824–25, 97 S.Ct. 1491: “indigent inmates must be provided at state expense with paper and pen to draft legal documents with notarial services to authenticate them, and with stamps to mail them.” Of course, a prisoner does not have a right to “an immediate and unlimited supply of” these items, Lebron v. Armstrong, 289 F.Supp.2d 56, 61 (D.Conn.2003), but if he does not have the means to buy them himself, prison officials must provide those supplies that are essential for litigating his case. Gentry v. Duckworth, 65 F.3d 555, 558 (7th Cir.1995) (“Part of meaningful access is furnishing basic scribe materials for the preparation of legal papers.... Of course, prisoners are not entitled to limitless supplies of such materials, merely to that amount minimally necessary to give them meaningful access to the courts.”). See also Hershberger v. Scaletta, 33 F.3d 955 (8th Cir.1994) (indigent prisoners must be provided free postage); Gluth v. Kangas, 951 F.2d 1504, 1508–09 (9th Cir.1991) (declaring unconstitutional prison policy that required indigent prisoners to choose between legal supplies and hygiene items); Gramegna v. Johnson, 846 F.2d 675, 677 (11th Cir.1988) (“[T]he states must permit the prisoner meaningful access to the postal system as this is typically the only manner in which a prisoner may communicate with the court.”); Chandler v. Coughlin, 763 F.2d 110 (2d Cir.1985) (reversing dismissal of claim that prison officials denied access to courts with policy limiting postage for indigent prisoners to one ounce letters); Collins v. Goord, 581 F.Supp.2d 563, 580 (S.D.N.Y.2008) (defendants not entitled to summary judgment on claim that prison officials denied photocopies to indigent prisoner); Hendon v. Ramsey, 478 F.Supp.2d 1214, 1220 (S.D.Cal.2007) (“[E]ven if 100 percent of Plaintiff's income is recouped for filing fees, he will not be denied access to paper, writing instruments, or postage because the government is required to provide these materials to...