Cunningham v. Sharp

Filing 7

IT IS HEREBY ORDERED that COUNT 4, the only claim at issue in this severed case, is DISMISSED without prejudice against Defendant C/O SHARP for failure to state a claim upon which relief may be granted.Plaintiff is GRANTED leave to file a First Amend ed Complaint in this case on or before April 21, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. (Amended Pleadings due by 4/21/2017). Signed by Chief Judge Michael J. Reagan on 3/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TIMOTHY J. CUNNINGHAM, Sr.,
Plaintiff,
vs.
C/O SHARP,
Defendant.

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Case No. 17−cv–00123−MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Timothy Cunningham, Sr., an inmate who is currently incarcerated at Lawrence
Correctional Center (“Lawrence”), brings this pro se civil rights action pursuant to 42 U.S.C.
§ 1983 against C/O Sharp, a correctional officer at Lawrence who allegedly interfered with his
access to the courts in November 2015. (Doc. 2). He seeks monetary relief. (Doc. 2, p. 18).
Plaintiff originally brought the access-to-courts claim (“Count 4”) against C/O Sharp in
another case that he filed in this District. See Cunningham v. Bridwell, et al., No. 16-cv-01360MJR (S.D. Ill. 2017) (“original case”). Count 4 was severed from the original case because it
was unrelated to other claims that Plaintiff asserted therein. (Doc. 10, original case). The instant
case was opened on February 8, 2017. (Doc. 1, instant case).
Count 4 is now subject to preliminary review pursuant to 28 U.S.C. § 1915A, which
provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.

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(b) Grounds for Dismissal – On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim
that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th
Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009). Count 4 does not survive screening under this standard and shall
therefore be dismissed.
The Complaint
The allegations offered in support of Plaintiff’s access-to-courts claim are set forth in a
single paragraph of his Complaint, as follows:
On 11-8-15 in House 6AL01 at 9:30 (or thereabout) I handed C/O Sharp an
envelope to place in institutional mail, complete with my return address and
marked “To Law Library,” with two motions and exhibits (about 200 pages) for
copying. My requests for the Law Library trying to locate this envelope on 1117-15, 11-20-15, and 11-24-15 were never received by the Law Library--and of
course I got no response. I presume officers diverted those requests, just like they
had diverted my motions for copies. I located and retrieved that envelope on 1127-15. It was in the control center for my building (where all officers lounge 24
hours per day). It was open but complete. Law Library did not receive it, nor was
it returned to me until C/O Bruner located it for me, and C/O Tanner passed it to
me through the pass through port outside the control center. This was the second
such diversion of mail I had experienced while prosecution of my Habeas Corpus
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and its Appeal. The answer to my Grievance (#12-15-63) revolved around the
elevator instead of what I grieved--mail diversion and access to the courts. It
suggests I submit written requests (via institutional mail) to the Law Library for
arrangements. I couldn’t get any mail to the Law Library to request anything due
to the diversion by my house officers! Grievance sent to grievance officer on
12/17/15 was not reviewed until 2-29-16. Warden signed off on it on 3/2/16, and
I received it on 3-29-16. I copied it and sent it on to the A.R.B. on 3-30-16, and
have not gotten a response yet.
(Doc. 2, pp. 7-8). In short, Plaintiff alleges that C/O Sharp took an envelope with two motions
from him and failed to deliver it to the law library for photocopies. Id.
Discussion
Prisoners have a fundamental right of meaningful access to the courts. Bounds v. Smith,
430 U.S. 817 (1977). Violations of that right may be vindicated in federal court in a civil rights
action brought pursuant to 42 U.S.C. § 1983. Id. The Seventh Circuit has derived a two-part test
to determine whether prison officials have violated a prisoner’s right of access to the courts.
Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). A prisoner must first show that he was
deprived of court access, and he must also show that he suffered an actual injury as a result.
Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009). In other words, a plaintiff must allege both
that prison officials failed to help him prepare and file meaningful legal papers, and he must
demonstrate that he lost a valid claim or defense because of the challenged conduct.

Id.

Plaintiff’s allegations satisfy neither requirement.
The allegations do not suggest that C/O Sharp failed to assist Plaintiff in preparing or
filing legal papers. The correctional officer took an envelope from Plaintiff when he requested
photocopies. (Doc. 2, pp. 7-8). It is not clear why the envelope containing Plaintiff’s legal
papers never made it to the law library, why Plaintiff later found it open, or whether C/O Sharp
was responsible for either. In the context of prison mail, however, an isolated or sporadic delay
in the delivery or filing of legal materials generally gives rise to no constitutional claim. See,
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e.g., Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (citations omitted); Sizemore v. Wiliford,
829 F.2d 608, 610 (7th Cir. 1987) (sporadic disruption of mail service does not violate
Constitution). Typically, a prisoner is required to demonstrate a “continuing pattern or repeated
occurrences” to state a valid claim. Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000).
Plaintiff only refers to this single incident involving C/O Sharp. Although he mentions a second
incident, Plaintiff does not allege that C/O Sharp was responsible for it.
The allegations also fail to describe any detriment to specific litigation that resulted from
C/O Sharp’s conduct.

Plaintiff is required to identify the underlying claim that was lost.

See Christopher v. Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633
(7th Cir. 2007). Plaintiff need not show that he would have prevailed on the underlying claim,
only that the claim was not frivolous. Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998)
(plaintiff need not show “that had it not been for his being denied access to the courts, he would
have won at least one court case”). The allegations allude only to a pending habeas matter and
an appeal. The Complaint does not suggest that either claim was lost because of C/O Sharp’s
conduct.
Count 4 shall be dismissed for failure to state a claim upon which relief may be granted.
However, the dismissal of this claim is without prejudice, and Plaintiff shall be granted leave to
file a “First Amended Complaint.” If he chooses to do so, Plaintiff will be bound by the
instructions and deadline for doing so below.
Disposition
IT IS HEREBY ORDERED that COUNT 4, the only claim at issue in this severed
case, is DISMISSED without prejudice against Defendant C/O SHARP for failure to state a
claim upon which relief may be granted.

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Plaintiff is GRANTED leave to file a First Amended Complaint in this case on or before
April 21, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted
time, dismissal of this action will become with prejudice. FED. R. CIV. P. 41(b). See generally
Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir.
1994). Further, a “strike” will be assessed. See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an Amended Complaint in this District, it is strongly
recommended that he use the forms designed for use in this District for such actions. He should
be careful to label the pleading, “First Amended Complaint,” and he must list this case number
(Case No. 17-123-MJR) on the first page.
Plaintiff must describe the actions taken by C/O Sharp that resulted in his denial of access
to the courts. He should attempt to include the facts of his case in chronological order, inserting
each defendant’s name where necessary to identify the actors. Plaintiff should refrain from filing
unnecessary exhibits or including any other unrelated claims in his Amended Complaint. Claims
found to be unrelated will be further severed into new cases, new case numbers will be assigned,
and additional filing fees will be assessed. To enable Plaintiff to comply with this order, the
Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).
An Amended Complaint supersedes and replaces the original Complaint, rendering the
original Complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the

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First Amended Complaint. Finally, the First Amended Complaint is subject to review pursuant
to 28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a First Amended Complaint.

See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 24, 2017
s/ MICHAEL J. REAGAN
U.S. District Judge

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