United States District Court, N.D. Indiana, South Bend Division
THOMAS R. GANUS, Plaintiff,
ROBERT E. CARTER, JR., et al., Defendants.
OPINION AND ORDER
L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT
R. Ganus, a prisoner without a lawyer, filed an amended
complaint alleging that, while housed at the Indiana State
Prison, he was unable to file a petition for transfer in his
criminal case due to restricted access to the law library and
legal research, and that he was retaliated against for filing
grievances regarding his lack of law library access. Under 28
U.S.C. § 1915A, the court must review the merits of a
prisoner complaint and dismiss it if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. A filing by an unrepresented party
“is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quotation marks and citations omitted).
Ganus asks the court to certify this case as a class action.
It would be “plain error to permit this imprisoned
litigant who is unassisted by counsel to represent his fellow
inmates in a class action.” Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see
also Hagan v. Rogers, 570 F.3d 146, 159 (3rd Cir. 2009).
“Under Rule 23(a)(4), a class representative must
fairly and adequately protect the interests of the class. A
litigant may bring his own claims to federal court without
counsel, but not the claims of others. This is so because the
competence of a layman is clearly too limited to allow him to
risk the rights of others.” Fymbo v. State
Farm, 213 F.3d 1320, 1321 (10th Cir. 2000) (citations
and quotation marks omitted). Mr. Ganus can only represent
himself on his own claims.
Ganus has sued eight defendants: Commissioner Robert E.
Carter, Warden Ron Neal, Executive Assistant Mark Newkirk,
Unit Team Manager Marion Thatcher, Corrections Lieutenant
Pauline Williams, Law Library Supervisor Bessie Leonard, Law
Library Supervisor Kimberly Creasy, and Law Library
Supervisor Erin Jones. Mr. Ganus alleges that he received a
letter from the attorney handling his direct criminal appeal
on February 7, 2018. The letter explained that the attorney
would no longer be representing Mr. Ganus and that, if he was
to file a petition for transfer with the Indiana Supreme
Court, he would need to do so pro se or hire other
counsel. Mr. Ganus couldn't afford another attorney, so
he planned to file the petition for transfer pro se.
Under the Indiana Rules of Appellate Procedure, Mr. Ganus had
30 days to file the petition for transfer. See Ind.
R. App. P. 57(C). Mr. Ganus showed Ms. Creasy the letter,
explained that he was no longer represented, and asked for
law library access so that he could timely file his petition
for transfer. Ms. Creasy insisted that Mr. Ganus was
represented by an attorney and so had no right to law library
Creasy further indicated that, even if Mr. Ganus weren't
represented by counsel, he wasn't entitled to law library
access consistent with meeting a deadline because he
didn't have an order signed by a judge setting a
deadline. In other words, as Mr. Ganus tells it, Ms. Creasy
failed to recognize that the deadline for the filing of a
petition for transfer was established by the Indiana Rules of
Appellate Procedure, not by a court order. Mr. Ganus was
scheduled to attend the law library on only two occasions in
February and March of 2018 for about three hours each. He
also sought assistance from staff in preparing the petition
for transfer, but got no help. As a result, he couldn't
file his petition for transfer in a timely manner, and so
failed to exhaust the claims raised in his direct appeal in
the state courts.
are entitled to meaningful access to the courts. Bounds
v. Smith, 430 U.S. 817, 824 (1977). The right of access
to the courts is the right of an individual, whether free or
incarcerated, to obtain access to the courts without undue
interference. Snyder v. Nolen, 380 F.3d 279, 291
(7th Cir. 2004). The First Amendment right to petition and
the Fourteenth Amendment right to substantive due process
protect the right of individuals to pursue legal redress for
claims that have a reasonable basis in law or fact.
Id. (citations omitted). Denial of access to the
courts must be intentional; “simple negligence will not
support a claim that an official has denied an individual of
access to the courts.” Id. at 291 n.11 (citing
Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir. 1992)).
To establish a violation of the right to access the courts,
an inmate must show that unjustified acts or conditions (by
defendants acting under color of law) hindered the
inmate's efforts to pursue a non-frivolous legal claim,
Nance v. Vieregge, 147 F.3d 591, 590 (7th Cir.
1998), and that actual injury (or harm) resulted. Lewis
v. Casey, 518 U.S. 343, 351 (1996) (holding that
Bounds v. Smith didn't eliminate the actual
injury requirement as a constitutional prerequisite to a
prisoner asserting lack of access to the courts); see
also Pattern Civil Jury Instructions of the Seventh
Circuit, 8.02 (rev. 2017). In other words, “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 legal claim has the right been
infringed. Marshall v. Knight, 445 F.3d 965, 968
(7th Cir. 2006). Mr. Ganus hasn't provided any
information about the claims he wanted to present to the
Indiana Supreme Court. He can't proceed on an access to
courts claim unless he can show that those claims were
potentially meritorious. Thus, he won't be permitted to
proceed on his claims that Warden Ron Neal, Mark Newkirk,
Marion Thatcher, Kimberly Creasy, and Erin Jones each denied
him access to a court.
Ganus further alleges that Commissioner Carter maintained
policies that resulted in inadequate law library access and
deprived him of his right to access the courts. This amounts
to a suit against Commissioner Carter in his official
capacity, but he can't sue Commissioner Carter in his
official capacity for money damages because “a suit
against a[n] official in his or her official capacity is not
a suit against the official but rather is a suit against the
official's office. As such, it is no different from a
suit against the State itself.” Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71
(1989) (citations omitted). The Eleventh Amendment generally
precludes a citizen from suing a State or one of its agencies
or departments in federal court. Wynn v. Southward,
251 F.3d 588, 592 (7th Cir. 2001). There are three exceptions
to Eleventh Amendment immunity: (1) suits directly against
the State based on a cause of action for which Congress has
abrogated the state's immunity from suit; (2) suits
directly against the State if the State waived its sovereign
immunity; and (3) suits against a State official seeking
prospective equitable relief for ongoing violations of
federal law. MCI Telecommunications Corp. v. Ill.
Commerce Comm'n, 183 F.3d 558, 563 (7th Cir. 1999).
None of these exceptions apply to this case. Congress
didn't abrogate the States' immunity through the
enactment of Section 1983. Joseph v. Bd. of Regents of
Univ. of Wis. Sys., 432 F.3d 746, 748 (7th Cir. 2005).
Indiana hasn't consented to this suit. Because the State
is immune from suit pursuant to the Eleventh Amendment, Mr.
Ganus can't sue Commissioner Carter in his official
Mr. Ganus can't proceed on a claim that Warden Ron Neal,
Mark Newkirk, Bessie Leonard, or Marion Thatcher failed to
properly train and supervise Law Library Staff, because
he hasn't alleged a constitutional violation caused by
the alleged failure to train and supervise. Similarly,
because Mr. Ganus hasn't alleged a constitutional
violation, he can't demonstrate that Warden Ron Neal,
Mark Newkirk, Marion Thatcher and Pauline Williams caused
that violation by failing to provide adequate staff to
operate the law library.
Ganus also alleges that he filed complaints and grievances
against Kimberly Creasy and Erin Jones for the denial of law
library access, and that in response to those complaints,
Kimberly Creasy and Erin Jones retaliated by continuing to
deny Mr. Ganus the law library access he needed to file his
petition for transfer. “To prevail on his First
Amendment retaliation claim, [Mr. Ganus] must show that (1)
he engaged in activity protected by the First Amendment; (2)
he suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amendment
activity was at least a motivating factor in the
Defendants' decision to take the retaliatory
action.” Gomez v. Randle, 680 F.3d 859, 866
(7th Cir. 2012) (quotation marks and citations omitted). Mr.
Ganus alleges that he engaged in protected speech when he
filed complaints and grievances, and Ms. Creasy and Ms. Jones
denied Mr. Ganus the law library access he needed to timely
file a petition for transfer because he filed those
complaints. He has adequately pled his retaliation claim.
Mr. Ganus filed a motion (ECF 9) seeking a status update. If
Mr. Ganus wants to know the status of his case, he may write
the clerk a letter requesting a docket sheet. A motion is
these reasons, the court:
(1) DENIES Thomas R. Ganus' motion for a status update
(2) GRANTS Thomas R. Ganus leave to proceed against Kimberly
Creasy and Erin Jones in their individual capacities for
compensatory and punitive damages for retaliating against him
by restricting law library access necessary to file a
petition for transfer ...