Pratt v. Tarr

• Decision Date: 27 September 2006
• Docket Number: No. 05-4470.,05-4470.
• Citation: 464 F.3d 730
• Parties: Anthony PRATT, Plaintiff-Appellant, v. David TARR, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

464 F.3d 730

Anthony PRATT, Plaintiff-Appellant, v. David TARR, et al., Defendants-Appellees.

No. 05-4470.

United States Court of Appeals, Seventh Circuit.

Submitted August 23, 2006.

Decided September 27, 2006.

Anthony Pratt, Pine Knot, KY, pro se.

Peggy A. Lautenschlager, Adrian Dresel-Velasquez, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before BAUER, POSNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff in this state prisoner's civil rights suit claims that prison officials violated his constitutional right to access to the courts. His pro se complaint alleges that they "den[ied] him adequate scribe materials, a desk, a chair and personal legal property to defend pending litigation in state and federal courts, which caused plaintiff's cases to now be lost and/or dismissed"; they "violate[d] access to the courts' standards by refusing to release lawbooks, briefs, transcripts, case law materials, [and] carbon paper." The district judge dismissed the suit on the ground that the plaintiff had failed to plead a claim of denial of access to the courts with the requisite particularity — failed to "provide more than general allegations that defendants hindered his ability to pursue these or any other non-frivolous legal actions."

In so ruling the judge relied primarily on Ortloff v. United States, 335 F.3d 652, 656 (7th Cir.2003), which holds that to avert dismissal on the pleadings the plaintiff in a denial of access case "must make specific allegations as to the prejudice suffered because of the defendants' alleged conduct." He must do this "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. 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."

Ortloff in turn relied solely on Martin v. Davies, 917 F.2d 336 (7th Cir.1990), which had been decided before the Supreme Court, in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), made emphatically clear that federal courts are not to supplement the list in Rule 9(b) of the Federal Rules of Civil Procedure of claims that must be pleaded with particularity. The Court repeated this Diktat in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 and n. 3, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Christopher v. Harbury, 536 U.S. 403, 417-18 and n. 15, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), as we and the other courts of appeals have done repeatedly since Leatherman. E.g., Christopher v. Buss, 384 F.3d 879, 881 (7th Cir.2004); Thomson v. Washington, 362 F.3d 969, 971 (7th Cir.2004); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir.2002); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002); Payton v. Rush-Presbyterian St. Luke's Medical Center, 184 F.3d 623, 627 (7th Cir.1999); Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346-48 (4th Cir.2005); Swann v. Southern Health Partners, Inc., 388 F.3d 834, 836-38 (11th Cir.2004). In Kolupa v. Roselle Park District, 438 F.3d 713, 715 (7th Cir.2006), we said: "Any decision declaring `this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Rule 9(b)." We repeated this admonition in Simpson v. Nickel, 450 F.3d 303, 305 (7th Cir.2006). But old habits die hard.

The list in Rule 9(b) of claims that must be pleaded with particularity does not include claims of denial of access to the courts, and so in Nance v. Vieregge, 147 F.3d 589, 590-91 (7th Cir.1998), we had held (as noted in Thomson v. Washington, supra, 362 F.3d at 971) that there is indeed no heightened-pleading requirement for such claims. And shortly after the decision in Ortloff, another panel of this court had stated the pleading requirement for a denial of access claim thus: "In order to avoid dismissal ... [plaintiff] therefore had to allege that he had a non-frivolous legal claim that was frustrated or impeded by [defendant's] failure to assist him in the preparation and filing of meaningful legal papers and that he was harmed by [defendant's] action (or lack thereof)." Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir.2004). This is the language of notice pleading, not, as in Ortloff, of fact pleading, notice pleading being all that is required of claims that don't fall within the scope of Rule 9(b).

Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.2006), recognized the tension between Ortloff and Lehn and sought to dissolve it. We said that the pleading standard applicable to denial of access claims is indeed notice pleading, but we added that "the mere denial of access to a prison law library or to other legal materials is not itself a violation of a prisoner's rights; his right is to access the courts, and only if the defendants' conduct prejudices a potentially meritorious challenge to the prisoner's conviction, sentence, or conditions of confinement has this right been infringed .... [A] prisoner's complaint [must therefore] spell out, in minimal detail, the connection between the alleged denial of access to legal materials and an inability to pursue a legitimate challenge to a conviction, sentence, or prison conditions. Requiring the complaint to include the basic allegations of the prejudice suffered serves the traditional purpose of notice pleading: it gives defendants fair notice of the claims against them and a reasonable opportunity to form an answer" (emphasis added); cf. Loubser v. Thacker, 440 F.3d 439, 442-43 (7th Cir.2006) (citations omitted) ("although conspiracy is not something that Rule 9(b) of the Federal Rules of Civil Procedure requires be proved with particularity ... it differs from other claims in having a degree of vagueness that makes a bare claim of `conspiracy' wholly uninformative to the defendant. Federal pleading entitles a defendant to notice of the plaintiff's claim so that he can prepare responsive pleadings. That is why courts require the plaintiff to allege the parties, the general purpose, and the approximate date of the conspiracy"); Alston v. Parker, 363 F.3d 229, 233-34 and n. 6 (3d Cir.2004).

In other words, it is not enough for a plaintiff to allege that the prison did not supply him with writing materials. That wouldn't give the prison a clue as to what injury the plaintiff was alleging, and the prison would therefore have no idea how to go about preparing its defense. To survive a motion to dismiss, the complaint would have to go on and allege that as a result of the prison's action the plaintiff had lost a case or suffered...