Voss v. Carr
| Decision Date | 07 November 2019 |
| Docket Number | 19-cv-790-jdp |
| Parties | DANTE R. VOSS, Plaintiff, v. KEVIN A. CARR, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Pro se plaintiff and prisoner Dante Voss has filed a complaint in which he challenges the constitutionality of DAI Policy #309.51.01, which, according to Voss, governs the availability of "legal loans," which are funds for a prisoner's use in litigation. The case is before the court for screening under 28 U.S.C. § 1915(e)(2) and § 1915A. I conclude that Voss hasn't stated a claim upon which relief may be granted, but I will give him leave to file an amended complaint that provides additional information to support his claim that defendant Kevin Carr (the secretary of the Wisconsin Department of Corrections) has violated his right to have access to the courts.
Most of the allegations in the complaint relate to Voss's claim that DAI Policy #309.51.01 prevented him from filing a timely notice of claim for several state-law claims he wishes to file against prison staff, who are state employees. Specifically, Voss alleges that he needed a legal loan in September 2018 to serve a notice of claim by certified mail, as required by Wis. Stat. § 893.82, but his request for a legal loan was denied because he had already reached his $50 limit for the year. So Voss sent his notice by First-Class Mail instead, which Voss says isn't sufficient under § 893.82(5). Voss says that he received a legal loan in January 2019, but by then his deadline for filing a notice of claim had passed, so it was too late to mail the notice again.
At the end of his complaint, Voss raises two other claims. First, he says that he has "already exhausted" his legal loan limit for 2019 and that "Defendant has refused to provide Plaintiff with further assistance to access the courts for civil matters." Dkt. 1, ¶¶ 32-33. Second, Voss he alleges that DAI Policy #309.51.01 is discriminatory because it reduces a prisoner's legal loan limit from $100 to $50 if the prisoner hasn't repaid legal loans from previous years. Id., ¶ 41.
From these allegations, I understand Voss to be asserting three claims: (1) the refusal to give him funds for serving his notice of claim by certified mail violated his constitutional right to access the courts; (2) the refusal to give him additional funds for current litigation violates his right to access the courts; and (3) reducing his legal loan from $100 to $50 for his failure to repay legal loans from previous years violates his right to equal protection of the laws.
To succeed on an access-to-courts claim, a plaintiff must show that he was, or is, suffering an "actual injury" by being "frustrated" or "impeded" in bringing a non-frivolous claim about his criminal conviction, sentence, or conditions of confinement. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). I will consider whether Voss has adequately alleged these elements as to his claims related to his alleged failure to comply with the notice of claim statute and his alleged inability to maintain current litigation.
As discussed below, this claim raises multiple legal questions that are not resolved in this circuit. For the purpose of screening, I will assume that all of these questions should be resolved in Voss's favor. But I cannot allow Voss to proceed on this claim because he hasn't adequately alleged that he was barred from bringing a nonfrivolous claim.
An individual can't be sued for damages under the Constitution unless he was "personally involved" in the violation. Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). The general rule is that an individual isn't personally involved unless he participated in the constitutional violation or knew about the particular conduct at issue and had the ability to stop it. Id.
In this case, Voss doesn't allege that defendant Carr personally denied a request for a legal loan. But a supervisory official may also be personally involved by "formulating and directing an unconstitutional policy." Del Raine v. Williford, 32 F.3d 1024, 1052 (7th Cir. 1994). Because Carr is the secretary of the Wisconsin Department of Corrections, it is reasonable to infer at this stage of the proceedings that Carr is responsible for DAI Policy #309.51.01.
Voss doesn't say that a court dismissed his state-law claims for failing to properly serve a notice of claim. Rather, I understand him to be saying that he chose not to file a lawsuit because he believes it would be dismissed for his failure to comply with § 893.82.
Generally, a plaintiff bringing an access-to-courts claim hasn't been injured until a court dismisses the underlying claim that is the subject of the alleged interference. For example, thiscourt has held that "a plaintiff cannot bring a claim that destruction of evidence hindered his ability to prove another claim until he loses that other claim." Reese v. Dittman, No. 16-cv-303-bbc, 2017 WL 1076349, at *2 (W.D. Wis. Mar. 22, 2017). In other words, an access-to-courts claim "is not ripe until [the underlying claim] is resolved." Id. See also Morales v. City of Los Angeles, 214 F.3d 1151, 1155 (9th Cir. 2000) (); Parrish v. Solis, No. 11-CV-01438, 2014 WL 1921154, at *13 (N.D. Cal. May 13, 2014) ( ); Lynch v. Barrett, No. 09-cv-00405-JLK-MEH, 2010 WL 3938359, at *6 (D. Colo. Oct. 5, 2010) ( ).
Voss's claim is distinguishable from these other cases because Voss is not simply contending that the application of the legal loan policy has made it harder for him to win his state-law claims. Rather, he is contending that his state-law claims have no chance of success. He cites Sorenson v. Batchelder, 2016 WI 34, ¶¶ 24, 46, 368 Wis. 2d 140, 885 N.W.2d 362, in which the court held that a plaintiff's failure to serve a notice of claim by certified mail requires dismissal of the claim. Other cases have held that "[t]he requirements of [§ 893.82] cannot be waived." Oney v. Schrauth, 197 Wis. 2d 891, 904, 541 N.W.2d 229, 233 (Ct. App. 1995). These cases suggest that a state court would have no choice but to dismiss Voss's state-law claims for his failure to serve the notice of claim by certified mail.
I am persuaded at this stage of the proceedings that a prisoner is actually injured within the meaning of Lewis when conduct by the defendant forecloses any relief on the underlying claim. It would seem to make little sense to require a plaintiff to go through the effort and expense of filing a lawsuit that would be immediately dismissed under controlling precedent. So I will not dismiss this claim on the ground that Voss failed to allege an actual injury. But because the law on this question does not appear to be settled in this circuit, Carr remains free to raise the issue again if he believes he can make a persuasive argument to the contrary.
The next question is whether a prisoner's right to receive litigation assistance from the state extends to state-law claims such as those that Voss wanted to raise. In Lewis, 518 U.S. at 355, the Court stated: At least one court has interpreted Lewis to mean that "a prisoner's right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only." Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999).
In this case, Voss's underlying claims are that prison staff disclosed his medical information without consent and opened confidential legal mail outside his presence. Dkt. 1, ¶ 16. He doesn't identify any legal theories he wishes to assert, and it seems unlikely that his allegations qualify as "civil rights" claims. But his allegations could fall within a broad understanding of "conditions of confinement" because they relate to conduct by prison staff at a prison. Cf. Porter v. Nussle, 534 U.S. 516, 532 (2002) (). Again, I will not dismiss Voss's claim on this ground, but Carr is free to ask the court to revisit the issue.
The Constitution guarantees prisoners a right to have "meaningful access to the courts." Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). But the Court of Appeals for the Seventh Circuit has expressed skepticism of the view that the state must provide prisoners financial assistance to litigate a case. In the context of discussing Wisconsin's prison legal loan program, the court of appeals has twice stated that a prisoner "has no constitutional entitlement to subsidy to prosecute a civil suit." Johnson v. Foster, 786 F.3d 501, 506-07 (7th Cir. 2015); Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003). This court has interpreted Lindell as standing for the proposition that "prisoners do not have a right to receive assistance from prison officials to file an...
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