Nance v. Vieregge

• Decision Date: 17 June 1998
• Docket Number: No. 96-1822,96-1822
• Citation: Nance v. Vieregge, 147 F.3d 589 (7th Cir. 1998)
• Parties: Fred NANCE, Jr., Plaintiff-Appellant, v. J.D. VIEREGGE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 589

147 F.3d 589

Fred NANCE, Jr., Plaintiff-Appellant, v.J.D. VIEREGGE, et al., Defendants-Appellees.

No. 96-1822.

United States Court of Appeals Seventh Circuit.

Argued May 12, 1998.

Decided June 17, 1998.

Robert J. Palmer, May, Oberfell & Lorber, South Bend, IN, for Plaintiff-Appellant.

Rita M. Novak, Barbara E. Pitts, Office of the Attorney General, Chicago, IL, Marcia L. McCormick(argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Before COFFEY, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Late in December 1992Fred Nance was transferred from the Graham Correctional Center in Illinois to the prison at Joliet, so that he could be closer to the court where he was to appear to ask for leave to withdraw his guilty plea.Nance arrived at the transfer point with a box containing documents and other personal possessions.J.D. Vieregge, the prison's property clerk, told Nance that he could not take the box with him on the bus but that it would have to be sent separately.Nance caused a ruckus; ultimately Warden Riegel appeared and assured Nance that any legal papers in the box would follow promptly.Unfortunately, some contents of the box were sent to the prison at Stateville, and the legal papers were never seen again.The ruckus led to the imposition of a mild sanction: Nance lost commissary privileges for two weeks.That deprivation did not affect any liberty or property interest, seeSandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418(1995);Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236(1976), and is therefore irrelevant to this case under 42 U.S.C. § 1983.But Nance did have a property interest in his possessions, and the fact that some of the documents were photocopies of cases Nance wanted to have handy when arguing in support of his motion sets up an argument that Vieregge deprived him of access to the courts by misdirecting his possessions.The district court dismissed Nance's complaint, ruling that Nance had not pleaded facts showing that Vieregge acted deliberately.

The ground the district court gave for its decision is incompatible with Fed.R.Civ.P. 8, which establishes a system of notice pleading.Plaintiffs need not plead facts or legal theories; it is enough to set out a claim for relief, which Nance did.See, e.g., Cook v. Winfrey, 141 F.3d 322(7th Cir.1998);Albiero v. Kankakee, 122 F.3d 417, 419(7th Cir.1997);Bartholet v. Reishauer A.G. (Ziirich), 953 F.2d 1073, 1078(7th Cir.1992);American Nurses' Ass'n v. Illinois, 783 F.2d 716, 723(7th Cir.1986).A complaint may not be dismissed unless no relief could be granted "under any set of facts that could be proved consistent with the allegations."Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59(1984);Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957).The district judge wrote that all of the events mentioned in the complaint are consistent with negligence, which is true but irrelevant.None of Nance's factual averments rules out the possibility that Vieregge acted deliberately, so the complaint may not be dismissed on this ground even if negligence is a more likely explanation than malice.Only later--via summary judgment or trial--does a court sift the probable from the merely possible.Civil rights complaints are not held to a higher standard than complaints in other civil litigation.Crawford-El v. Britton, --- U.S. ----, 118 S.Ct. 1584, 140 L.Ed.2d 759(1998).Although the first sentence of Fed.R.Civ.P. 9(b) establishes a special rule for allegations of fraud (which must be pleaded "with particularity"), the second sentence reads: "Malice, intent, knowledge, and other condition of mind of a person may be averred generally."Nance's complaint alleges that Vieregge acted intentionally; nothing more is required.

Nonetheless, the district judge was right to dismiss the complaint.Suppose Vieregge spitefully misdirected Nance's papers.Illinois maintains a system of courts that can provide compensation for torts, and the opportunity to recover damages for a rogue guard's wrongful conduct supplies all of the process that is due--whether the deprivation was negligent, seeParratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420(1981), or intentional, Hudson v. Palmer, 468 U.S. 517, 531-36, 104 S.Ct. 3194, 82 L.Ed.2d 393(1984).Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100(1990), does not affect this conclusion.SeeEaster House v. Felder, 910 F.2d 1387(7th Cir.1990)(en banc).Nance's contention that the loss of photocopies deprived him of access to the courts is not directly subject to Parratt and Hudson, because no amount of process (or promise of compensation) authorizes a state to foreclose a prisoner's access to a federal courthouse.But these cases may apply indirectly, when the prisoner seeks relief unrelated to access.

To establish a deprivation of access to the courts, a prisoner must show that unjustified acts or conditions "hindered his efforts to pursue a legal claim."Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606(1996).If the hindrance is ongoing, prospective relief can compel the state to restore access so that the claim may be vindicated.This was the theory behind the order in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72(1977), to improve the prison's law library.But Nance does not protest an ongoing hindrance or contend that another deprivation of legal materials is...