Ronnie Nicholson v. Scott Eckstein, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED.The district court noted that Nicholson had incurred a strike, see 28 U.S.C. 1915(g), for filing a lawsuit that fails to state a claim. This appeal counts as a second strike. Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge and David F. Hamilton, Circuit Judge. [6844041-1] [6844041] [16-3308]

Case: 16-3308

Document: 21
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted May 26, 2017 *
Decided May 26, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-3308
RONNIE F. NICHOLSON, JR.,
Plaintiff-Appellant,
v.
SCOTT ECKSTEIN and
BRIAN MILLER,
Defendants-Appellees.

Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 16-cv-310-PP
Pamela Pepper,
Judge.
ORDER

Wisconsin inmate Ronnie Nicholson claims in this lawsuit under 42 U.S.C. § 1983
that two prison employees violated his First Amendment right of access to the courts by
confiscating papers needed to file a lawsuit concerning his incarceration in Tennessee in
1999. The district court dismissed the complaint at screening, see 28 U.S.C. § 1915A, for
failure to state a claim. We affirm the judgment.

The defendants were not served with process and did not participate during
proceedings in the district court, but they have filed a brief in this court. We have
agreed to decide this case without oral argument because the appeal is frivolous.
See FED. R. APP. P. 34(a)(2)(A).
*

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Between 2006 and 2007, while he was housed at Columbia Correctional
Institution, Nicholson enlisted a fellow inmate to draft a complaint claiming that,
during a riot at the Tennessee prison, he was sprayed with an excessive amount of a
chemical agent and then for several days not allowed to shower to remove the residue.
As a result of that incident, Nicholson alleges, he suffers from chemical leukoderma and
his skin is permanently discolored. Nicholson gave the other inmate all of his
documents related to the incident. But that inmate was transferred to Redgranite
Correctional Institution before he finished the complaint, and he took Nicholson’s
papers along with him. The inmate ignored Nicholson’s requests to return the
documents, so in late 2007 Nicholson asked a staff member at Columbia to contact
authorities at Redgranite to retrieve his materials. This effort yielded the return of 20
out of 200 pages.
Nicholson later concluded that the Redgranite employees sued in this case,
Scott Eckstein and Brian Miller, had searched for his papers in the other inmate’s cell.
Nicholson wrote both Eckstein and Miller asking about the missing documents.
Eckstein never responded, but Miller met with Nicholson, who by then had been
transferred from Columbia to Redgranite. Miller denied even participating in the search
of the other inmate’s cell. Nicholson eventually obtained a printout of an e-mail
exchange between a Columbia staff member and Eckstein from late 2007 (Nicholson has
appended a copy to his appellate brief, and in his submissions to this court he also
elaborates on events in Tennessee during 1999). In the e-mail exchange, Eckstein
confirms that “property” belonging to Nicholson had been found in the other inmate’s
cell. Eckstein also copied the Columbia staff member on an e-mail asking a Redgranite
employee to inventory, pack, and ship Nicholson’s property to Columbia.
That is the factual predicate for Nicholson’s accusation—made nearly 9 years
later—that Eckstein and Miller kept or destroyed most of his papers found in the other
inmate’s cell and thus prevented him from suing the persons allegedly responsible for
his skin condition. According to Nicholson, the statute of limitations expired on his
intended Eighth Amendment claim against those persons while Eckstein and Miller
were improperly holding his documents. At screening, though, the district court
reasoned that Nicholson’s complaint fails to state a claim because, even if the
defendants kept the rest of his papers, he was not prejudiced because he could have
filed a complaint about the prison riot based on personal knowledge. Nicholson moved
for reconsideration, see FED. R. CIV. P. 59(e), arguing that he should have been allowed to
amend his complaint by adding that the missing papers “contained notes, dates, times,
and names of defendants responsible for his injury” and thus were crucial to the

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contemplated lawsuit. The district court replied that Nicholson did not need the
information in the missing documents to commence a lawsuit; he could have filed a
complaint alleging that unknown defendants had caused his injuries and then during
discovery learned details about names, dates, and times.
Nicholson’s appeal from this decision is frivolous. To state a claim for denial of
access to the courts, he needed to plausibly allege that the defendants impeded him
from pursuing a legitimate suit arising from the prison riot in Tennessee. See Ortiz v.
Downey, 561 F.3d 664, 671 (7th Cir. 2009); Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.
2006). Even if the missing papers include details about the riot and use of a chemical
agent, Nicholson did not need those details to file a complaint. Federal Rule of Civil
Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Indeed, Rule 8 requires “notice pleading, not fact
pleading.” United States ex rel. Hanna v. City of Chicago, 834 F.3d 775, 779 (7th Cir. 2016).
And Tennessee Rule of Civil Procedure 8.01 mirrors the federal rule, requiring only that
a plaintiff say enough for the court to conclude that his claim for relief is more than
speculative. See Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426–27
(Tenn. 2011); Moses v. Dirghangi, 430 S.W.3d 371, 378 (Tenn. Ct. App. 2013).
Nicholson mistakenly believes that he needed all the facts at his fingertips before
bringing a lawsuit. As the district court pointed out, he could have used placeholder
names for the persons who injured him and identified them after suing. See Billman v.
Ind. Dep’t of Corr., 56 F.3d 785, 789 (7th Cir. 1995); Brown v. Owens Corning Inv. Review
Comm., 622 F.3d 564, 572 (6th Cir. 2010); West v. Schofield, 460 S.W.3d 113, 116–17 (Tenn.
2015). Additionally, after filing suit he could have asked the presiding judge for help in
identifying the defendants. See Bryant v. City of Chicago, 746 F.3d 239, 244 (7th Cir. 2014);
Donald v. Cook Cty. Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996). Discovery also would
have been available in federal or state court, so that Nicholson could obtain evidence to
support his contentions, including that prolonged exposure to the chemical agent is the
cause of his skin condition. See FED. R. CIV. P. 26; TENN. R. CIV. P. 26.02.
In fact, our own research discloses that Nicholson already has participated in a
lawsuit arising out of the Tennessee riot. See Winters v. Litscher, No. 3:00-cv-00318-bbc
(W.D. Wis. Oct. 31, 2000). Shortly after that riot, in 2000, he and 26 other Wisconsin
prisoners who had been housed at the Tennessee prison on a contract basis joined
together in a pro se lawsuit, claiming that unnamed defendants used excessive force
during the riot. That lawsuit was filed in the Western District of Wisconsin but
transferred to the Western District of Tennessee, where the presiding judge split the

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case into separate actions and gave each prisoner an opportunity to dismiss his suit
voluntarily without paying the filing fee. Nicholson v. Blanchett, No. 1-01-01051-JDT
(W.D. Tenn. Feb. 14, 2001). Nicholson chose not to proceed with his action.
There is another obvious hurdle Nicholson faces in plausibly alleging prejudice
from the defendants’ actions. In his reply brief, Nicholson acknowledges that in 2001 or
2002 he connected his skin condition to the Tennessee prison riot. In § 1983 actions, the
statute of limitations is borrowed from “the state where the incident forming the basis
of the claim occurred.” King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir.
2000); see also Cesal v. Moats, 851 F.3d 714, 721–22 (7th Cir. 2017). For claims arising in
Tennessee, the applicable statute of limitations is one year. Johnson v. Memphis Light Gas
& Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (applying TENN. CODE ANN.
§ 28-3-104(a)(1)(B)). That would mean that a § 1983 claim against the persons who
injured him had expired years before 2007, when the defendants allegedly seized and
concealed his documents. And given the age of the underlying Eighth Amendment
claim, we need not delve further into the staleness of Nicholson’s First Amendment
claim against these defendants.
The district court noted that Nicholson had incurred a strike, see 28 U.S.C.
§ 1915(g), for filing a lawsuit that fails to state a claim. This appeal counts as a second
strike.
AFFIRMED.