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Dodd v. Severe

United States District Court, N.D. Indiana, South Bend Division

December 23, 2019

RICHARD DODD, Plaintiff,
v.
M. SEVERE, et al., Defendants.

          OPINION AND ORDER

          Damon R. Leichty Judge

         Mr. Richard Dodd, a prisoner without a lawyer, filed a complaint regarding a lack of access to the courts via the law library at the Westville Correctional Facility. “A document filed pro se 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) (internal quotation marks and citation omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, the court must review the complaint and dismiss it if the action is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from such relief. “In order to state a claim under [42 U.S.C.] § 1983 a plaintiff must allege: (1) that defendants deprived him of a federal constitutional right; and (2) that the defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

         In his complaint, Mr. Dodd alleges generally that he was prevented from attending the law library during times in which he had deadlines pending. He also alleges that the law library does not contain adequate materials with which to conduct legal research. He has sued three prison officials- M. Severe the Warden, J. Hicks the Law Library Supervisor, and E. Vasquez the Policy Coordinator- for injunctive relief and monetary damages.

         Prisoners 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). This right “is protected by the First Amendment right to petition and the Fourteenth Amendment right to substantive due process.” Id. 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 589, 591 (7th Cir. 1998). He must also show that actual injury (or harm) resulted. Lewis v. Casey, 518 U.S. 343, 351 (1996) (holding that Bounds did not 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 this right been infringed.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006) (emphasis in original). “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 v. United States, 335 F.3d 652, 656 (7th Cir. 2003) (overruled on other grounds).

         Here, much of Mr. Dodd's complaint is focused on his lack of access to LexisNexis, an electronic legal research program. Mr. Dodd alleges that the LexisNexis program has been malfunctioning at the Westville Correctional Facility for over six months. He claims that “[o]nly the clerks' computers and a few others” have a working LexisNexis program installed on them due to inadvertent deletions by fellow inmates, and those computers are available on a first-come, first-served basis. ECF 2 at 6. The computer that Mr. Dodd's legal files are saved on does not have a working version of the program, and his requests to have his legal files moved to a different computer have been ignored. He complains generally that the computers at Westville are not secure and that “[a]ny other offender can access [his] legal file, delete, modify, copy or sabotage [his] personal files.” Id. at 9. Mr. Dodd believes that “[w]ithout the LexisNexis, [he] is without a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Id. at 11.

         As an initial matter, the court notes that the Westville Correctional Facility is not required to provide inmates with computers or specific computer programs, so the mere fact that Mr. Dodd is unable to securely save his legal files on a computer or conduct his legal research using LexisNexis does not constitute a lack of access to the courts. Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004) (“[The law] does not require any specific resources such as a law library or a laptop with a CD-ROM drive or a particular type of assistance.”); see also Davis v. Doyle, No. 05-C-374-C, 2005 WL 2105756, at *6 (W.D. Wis. Aug. 29, 2005). Mr. Dodd does not allege that the prison requires him to use a computer system for his legal proceedings; in fact, he admits that the law library contains North Eastern Reporters, Supreme Court decisions, rules of court, and “other books.” ECF 2 at 10. Although he claims they are not kept up to date, he does not allege any connection between the abstract inadequacies of these materials to any non-frivolous legal claim. He also admits that even during periods of lock up, he is able to “send a request slip for services to the law library.” Id. at 7. Although he alleges it takes approximately one week to receive the requested materials and they are “rarely on point, ” he admits he is provided legal materials on loan. Id.[1] Thus, the question here is whether the specific conditions encountered by Mr. Dodd hindered his efforts to pursue any non-frivolous legal claims and whether he was harmed as a result.

         First, Mr. Dodd alleges he had planned to appeal the denial of his motion to correct an erroneous sentence.[2] He had a thirty-day deadline to do so, but he did not receive a pass to the law library from the supervisor until “at the end of the 30 days.” ECF 2 at 7. According to Mr. Dodd, he had to use that law library visit to prepare a request for a continuance because he was not provided with the necessary time “required to prepare an appeal” and did not have access to case law to support his contentions. Id. Importantly, Mr. Dodd does not allege that he was prevented from filing his request for a continuance with the court, nor does he state the outcome of that request (i.e. whether it was granted or denied). Without additional information about the underlying proceedings such as the cause number, the result of the requested continuance, his reason for wishing to appeal, and what information he needed but could not obtain from the law library to file the intended appeal, this court cannot determine that Mr. Dodd has a colorable claim in this lawsuit.[3]

         Similarly, Mr. Dodd alleges he is “being made to miss his only opportunity at the 1 chance review of his criminal case with habeas corpus.” ECF 2 at 8. He states he is nearing the one-year limitations period (or that it has “only recently passed”) but that “no research = no chance.” Id. at 8- 9. Mr. Dodd does not allege that he has been physically prevented from filing a habeas petition; rather, he alleges generally that he has not been able to perform electronic legal research regarding it. Again, however, he is not entitled to conduct research using LexisNexis. And, without additional information about the underlying criminal case such as the cause number, the potential bases for habeas corpus review, and what legal materials and/or information he needs but cannot obtain, he has not stated a plausible claim.

         Next, Mr. Dodd alleges that the failure to re-install the LexisNexis program on various computers in the law library kept him “ignorant to some technical requirements, ” so his federal lawsuit-Dodd v. Wexford Medical, et al., 3:19-CV-880-PPS-MGG, filed October 29, 2018-was dismissed. ECF 2 at 8. However, a review of that docket indicates the complaint was dismissed without prejudice due to the fact that Mr. Dodd admitted he filed the lawsuit before exhausting his available administrative remedies because he wanted to get to court sooner rather than later. See Dodd v. Wexford Medical, et al., 3:19-CV-880-PPS-MGG, at ECF 1, 3, 7. Mr. Dodd has since filed another lawsuit (which remains pending) regarding these same issues. See Dodd v. Wexford Medical, Inc., et al., 3:19-CV-299-PPS-MGG, filed April 10, 2019. As such, Mr. Dodd was not denied meaningful access to the courts or harmed by the Defendants in his efforts to pursue this claim.

         Mr. Dodd further alleges he was prevented from “engaging in adequate discovery which resulted in a lower than expected award, because [he] missed the deadline for filing subpoena duces tecum” in a separate case filed in the Southern District of Indiana. ECF 2 at 8 (citing Dodd v. Zatecky, et al., 1:17-CV-03955-TWP-DML, filed Oct. 27, 2017). The docket in that case indicates Mr. Dodd filed a motion for extension of time to extend the discovery deadline on November 28, 2018 to file subpoenas and depose the defendants. See Dodd v. Zatecky, et al., 1:17-CV-03955-TWP-DML, at ECF 37. However, the district court judge did not rule on the merits of that motion; instead, it was denied as moot on March 21, 2019, when the parties resolved the case by way of a settlement agreement. See id. at ECF 47, 56, 57. Mr. Dodd's voluntary choice to forego potential additional discovery and settle the case cannot serve as the basis for a denial of access to the courts claim.

         Mr. Dodd alleges that he is being prevented from bringing a retaliation claim against prison officials for removing him from his prison job. He mentions that he was hired to work in the law library when he first arrived at Westville in 2017, but he claims that he was “administratively removed” from this job soon after because Westville has a policy or custom of “removing knowledgeable people from the law library.” ECF 2 at 12. These allegations do not state a plausible First Amendment retaliation claim, [4] and it is unclear why Mr. Dodd believes he is unable to file a retaliation claim (and who or what is preventing him from doing so). Mr. Dodd is undoubtedly able to file documents and motions with the court. Since this case's inception, he has consistently litigated in Dodd v. Wexford Medical, Inc., et al., 3:19-CV-299-PPS-MGG, and he has recently filed a motion for preliminary injunctive relief here. See ECF 7. Thus, Mr. Dodd has not plausibly alleged that the Defendants' acts or the conditions of his confinement have hindered his efforts to pursue this claim.

         To the extent Mr. Dodd alleges the Defendants maintain policies, practices, or customs that result in inadequate law library access, he cannot proceed because he has not plausibly alleged that his right to access the courts has been impinged. See e.g. Savory, 469 F.3d at 670 (to state a claim, a plaintiff must allege that the defendants deprived him of a federal constitutional right).[5] Likewise, Mr. Dodd cannot proceed on a claim against any of the named Defendants based on a failure to properly train or supervise the law library staff, because he has not alleged an underlying constitutional violation caused by the alleged failure to train or supervise. Id.

         In addition, the failure to train claims fail because “in the Eighth Amendment context, such claims may only be maintained against a municipality.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 841 (1994)). The Defendants aren't municipalities in either their individual or official capacities. Moreover, to the extent Mr. Dodd is alleging that the Defendants did not properly supervise the law library staff, there is no general respondeat superior liability under 42 U.S.C. § 1983, and these Defendants cannot be held liable simply because they employed or supervised them. See Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). “[P]ublic employees are responsible for their ...


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