Voss v. Carr

• Decision Date: 13 March 2020
• 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

DANTE R. VOSS, Plaintiff, v. KEVIN A. CARR, Defendant.

19-cv-790-jdp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

March 13, 2020

OPINION and ORDER

Pro se plaintiff Dante Voss has filed an amended complaint as directed by the court. In his original complaint, Voss raised three claims: (1) defendant Kevin Carr, the secretary of the Wisconsin Department of Corrections (DOC), denied his right to have access to the courts by implementing a policy regarding legal loans that prevented Voss from filing a lawsuit in state court; (2) Carr's policy is denying his right to have access to the courts now by failing to give him legal loans necessary to litigate his pending cases; and (3) Carr's policy violates the Equal Protection Clause because it reduces a prisoner's legal loan limit from $100 to $50 if the prisoner hasn't repaid legal loans from previous years.

I dismissed the first two claims without prejudice because Voss didn't provide fair notice of his claims, but I gave him an opportunity to file an amended complaint to provide more information. I dismissed the equal protection claim with prejudice because the policy he was challenging has a rational basis and thus did not violate the Equal Protection Clause.

In response, Voss filed a 36-page amended complaint that goes far beyond what I asked him to do. His amended complaint now includes many additional claims. Instead of just challenging the legal loan policy, he now contends that DOC's policy regarding use of the law library, the Wisconsin open records law, and the statutory requirement to serve a notice of claim by certified mail all violate both the constitutional right to have access to the courts and the right to equal protection of the law. For the reasons discussed below, all of these challenges fail, and I will dismiss the case for Voss's failure to state a claim upon which relief may be granted.

ANALYSIS

A. Access to courts

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). Voss contends that DOC's legal loan policy, its refusal to identify the names of correctional officers, and its policy governing the amount of time that prisoners are allowed in the law library violate his right his right to have access to the courts. He says that defendant Carr can be held liable for each violation, either because he is responsible for the policy at issue or because he affirmed a grievance in which Voss complained about the policy at issue.

1. Refusal to grant legal loan extensions

Voss challenges the constitutionality of DOC's legal loan policy, DAI Policy 309.51.01, as it has been applied to him. He doesn't describe the policy in detail, but he says that it allows indigent prisoners to borrow up to $100 a year for legal expenses, but only if they have paid off the previous year's legal loan. Prisoners like Voss who have not repaid their loans are capped at $50. He says that the monetary cap has denied his access to courts in the following ways:

1) Dismissal of state court lawsuit. In No. 19-cv-387, filed in Dane County Circuit Court, Voss alleged that prison staff violated his right to privacy underWis. Stat. § 995.50 by opening mail from the state public defender's officer and his criminal attorney outside his presence. The court dismissed the lawsuit in part because Voss failed to comply with Wis. Stat. § 893.82(5), which requires a notice of claim to be served by certified mail. Voss says that he couldn't comply with § 893.82(5) because his request for a legal loan extension was denied.

2) Preventing him from filing a state court privacy lawsuit. Voss says that he wanted to file a lawsuit in state court that prison staff violated Wis. Stat. § 995.50 by opening mail from his daughter's therapist outside his presence. Voss never filed a lawsuit raising that claim, but he says that it would have been futile to do so because he had not complied with the requirements to serve the notice of claim by certified mail. He didn't serve the notice of claim by certified mail because he didn't have the funds to do so and his request for a legal loan extension was denied.

3) Preventing him from filing petitions for writs of certiorari. Voss says that he wanted to challenge three conduct reports he received for being late to his prison job. He never filed those petitions because he was unable to obtain legal loan extensions before the 45-day deadline for filing a petition for a writ of certiorari. See Wis. Stat. 893.735.

4) Preventing him from litigating pending case. In Voss v. Marathon County, No. 18-cv-540-jdp (W.D. Wis.), Voss is challenging the medical care he received in the Marathon County and Lincoln County jails between 2015 and 2016. He says that he has been unable to conduct discovery because his requests for legal loans are being denied.

a. Scope of the right

All of these claims suffer from multiple problems. But the common problem is that they are premised on a view that Voss is entitled to unlimited financial assistance to prosecute as many lawsuits as he wants about anything that happens to him in prison. That is incorrect. "Prison officials have an affirmative duty to provide inmates with reasonable access to courts," but "reasonable access does not mean unlimited access." Martin v. Davies, 917 F.2d 336, 338 (7th Cir. 1990).

In the context of financial assistance, the Court of Appeals for the Seventh Circuit has put it bluntly: 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) (quoting Lindell v. McCallum, 352 F.3d1107, 1111 (7th Cir. 2003)). In Johnson, a Wisconsin prisoner was seeking habeas relief, but he filed his petition without first seeking relief from the state supreme court, as he was required to do. He blamed prison officials for failing to give him the legal loans necessary to file an appeal, but the court said that didn't provide good cause for the procedural default because he didn't have a right to the loan. Id. at 506-07. In Lindell, the court considered the rights of another Wisconsin prisoner who had exhausted his legal loans. 352 F.3d at 1111. The court said that "there is no possibility that [the district court will] have to order Wisconsin to lend [the prisoner] a penny" because the amount of legal loans Wisconsin provides is "a matter strictly between [the prisoner] and Wisconsin, and not any business of the federal courts." Id.

Johnson and Lindell could be read to mean that a refusal to provide a legal loan is never a violation of the right to have access to the courts. But prisoners do have a limited right to basic legal supplies, Bounds v. Smith, 430 U.S. 817, 825 (1977), including postage, Ripp v. Nickel, 838 F. Supp. 2d 861, 866 (W.D. Wis. 2012), and Voss says that a legal loan is the only way that an indigent prisoner can obtain postage and other supplies, Dkt. 18, ¶ 21. See also Owens v. Evans, 878 F.3d 559, 564 (7th Cir. 2017) (declining to decide whether refusal to provide legal loan for serving pleadings and summonses to nongovernmental defendants violated right to have access to the courts).

Voss doesn't explain why he needed a legal loan to challenge his conduct reports. See Wis. Stat. § 814.29 (allowing indigent litigants, including prisoners, to file complaints without prepaying the filing fee). And he is vague about how he wants to use a legal loan to conduct discovery in No. 18-cv-540-jdp. But some of his claims relate to his inability to serve a notice of claim by certified mail, which could fall within the scope of Bounds. But even if the court of appeals would recognize an exception to Johnson and Lindell for legal loans used to purchasepostage, and even if some of Voss's requested legal loans would fit within that exception, it is well established that "prisoners are not entitled to limitless supplies of [mailing and other basic scribe] materials"; rather, they are entitled "to that amount minimally necessary to give them meaningful access to the courts." Gentry v. Duckworth, 65 F.3d 555, 558 (7th Cir. 1995).

In this case, Voss doesn't allege that the legal loan policy excludes loans for certified mail. Rather, he says that he ran out of legal loans to pay for certified mail because he had used his loans for other cases. In fact, Voss acknowledges in his complaint that he is currently litigating nine separate cases. Dkt. 18, ¶ 149. Voss cannot plausibly contend that he is entitled to more than that. The court of appeals made it clear in Johnson and Lindell that, "like any other civil litigant, [an inmate] must decide which of his legal actions is important enough to fund." Johnson, 786 F.3d at 507 (quoting Lindell, 352 F.3d at 1111). Voss has failed to heed that warning, so he is not entitled to relief from this court.

Even if the court were to assume that Voss had the right to obtain legal loans to file an unlimited number of lawsuits, I would conclude that he has failed to state a claim for other reasons.

b. Dismissal of state court lawsuit

In the case dismissed by the state court, Voss was asserting claims that prison staff violated his state-law right to privacy under Wis. Stat. 995.50 by opening letters from his criminal defense attorney and the state law public defender. He doesn't identify the contents of either letter, he doesn't say whether the alleged conduct was intentional or negligent, and he doesn't allege that prison staff or anyone else used the information in the letters to harm him.

The claims in the state court lawsuit don't fall within the right to have access to the courts for two reasons. First, "the tools [the right to have access to the courts] requires to be provided are those that the inmates need in order to attack their sentences, directly or...