Hertel v. Dvorak et al
OPINION AND ORDER: Summary judgment is GRANTED for the Defendants with final judgment entered against Hertel.. Signed by Judge Jon E DeGuilio on 12/22/16. (jld) (cc: Hertel)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
YOLANDA MILLER-LEWIS and
Case No. 3:10-CV-009 JD
OPINION & ORDER
It is time for this protracted litigation to come to an end. But first, a brief summary is
appropriate to explain from whence this case has come. Six years ago, Hertel sued 31 defendants
in a 122-page complaint claiming, among other things, that defendants defamed and conspired
against him, and violated a wide range of his rights guaranteed by the Constitution and federal
statutes [DE 1]. After two extensive screening orders were issued [DE 13; DE 34], one of which
concerned Hertel’s lengthy amended complaint [DE 22], the case was whittled down to a single
claim against Defendants Yolanda Miller-Lewis and Julie Lawson concerning an alleged
violation of Hertel’s right to access the courts.1 Although Defendants filed two separate motions
for summary judgment, those motions were denied with the Court explicitly noting that neither
motion raised the issue of whether or not Hertel was hindered from pursuing a non-frivolous
As recounted in the Court’s previous orders, this claim concerns events that happened at
the St. Joseph County Jail after Hertel voluntarily surrendered to the jail on April 16, 2008. At
the time of his self-surrender, Hertel brought with him approximately forty pounds of
“irreplaceable” legal paperwork that Hertel alleges he needed to file civil lawsuits. However,
upon his transfer on May 1, 2008 to the Reception and Diagnostic Center for placement in the
Indiana Department of Corrections, Yolonda Miller-Lewis (the jail’s property manager),
allegedly took Hertel’s legal materials, to which Julie Lawson (the jail’s warden) was allegedly
complicit. The documents have never been returned.
legal claim [DE 141 at 19; DE 157 at 7]. In anticipation of trial, the Court sua sponte required
Hertel to identify the exact underlying non-frivolous legal claims he intended to pursue with
respect to his access to courts claim [DE 177]. See Pratt v. Tarr, 464 F.3d 730, 733 (7th Cir.
2006) (“the district judge on his own initiative can ask the plaintiff for a brief or memorandum
explaining the legal basis of the plaintiff’s claim.”). Hertel was also directed to “specifically
identify what papers were stolen (including a description of the contents of those papers) relative
to each claim he identifies, and . . . explain how the loss of those papers negatively impacted that
particular claim.” Id. at 3.
On January 13, 2016, Hertel filed a pretrial brief [DE 180] explaining the underlying
access claims he intends to pursue at trial and how those claims were impacted by Defendants’
conduct. After liberally construing Hertel’s pro se2 filing, the Court detailed in a written order
[DE 186] the reason why Hertel’s access to courts claim was likely appropriate for summary
ruling. In relevant part, the Court’s order read as follows:
Hertel’s January 13, 2016 filing [DE 180] reveals that in an attempt to
establish an underlying non-frivolous legal claim, he intends to pursue two
distinct claims for ineffective representation provided by his prior public defender,
Philip Skodinski. Specifically, Hertel argues that his “case within the case”
focuses on the allegation that without his legal documents, he was hindered from
suing Skodinski for: (1) failing to seek an appeal bond after Hertel was convicted
in case 71D08-0409-FA-00096; and (2) ineffectively handling his direct appeal in
case 71A05-0805-CR-00286 [DE 180 at 2, 10-17].3
The Court has verified that Hertel wishes to proceed pro se, and would note that Hertel
has evidenced an impressive capacity to do so.
Although Hertel characterizes his claims against Skodinski as claims for breach of
contract (so as to avoid the need for expert testimony, see infra), there is no doubt that these are
substantively claims for legal malpractice, and therefore will be referred to as such. See Am. Int'l
Adjustment Co. v. Galvin, 86 F.3d 1455, 1459 (7th Cir. 1996) (given that the alleged breach
complained of is the failure to adhere to the appropriate standard of care, there is no difference
With respect to documents that would have supported his first claim,
Hertel identified two letters between himself and Skodinski wherein Hertel
directed Skodinski to request an appeal bond, and Skodinski then responded by
indicating that he would do so. Ultimately, Skodinski did not request an appeal
bond. Hertel argues that had Defendants not confiscated these letters, copies of
which were allegedly not maintained by Skodinski, Hertel would have had a
“much easier” cause of action to pursue against Skodinski.
With respect to documents that would have supported his second claim,
throughout this litigation Hertel has never identified with specificity which
additional documents he alleges were confiscated by Defendants, and he has only
referred generically to the theft of his “legal paperwork,” “material,” “papers,”
“documents,” and “documentary evidence.” Moreover, Hertel has never
explained how the loss of particular papers negatively impacted his claim that
Skodinski ineffectively handled his direct appeal. This shortcoming itself may
warrant dismissal of Hertel’s second claim. See, e.g., Hossman v. Spradlin, 812
F.2d 1019, 1022 (7th Cir. 1987) (“Appellant, in opposition to defendant’s motion
for summary judgment, could and should have stated with specificity exactly what
materials he was deprived of and how such deprivation resulted in his being
denied the meaningful access to the courts to which he is entitled”).
But the bigger problem with Hertel’s access to courts claim is that he has
only asserted conclusory allegations that he was hindered from alleging his legal
malpractice claims against Skodinski, and he has failed to show any constitutional
detriment caused by the confiscation of his legal documents such that they were
crucial or essential to a pending or contemplated case. See Howland v. Kilquist,
833 F.2d 639, 642-43 (7th Cir. 1987) (“We are . . . firmly of the opinion that, in
order to proceed to trial and survive a motion for summary judgment, a plaintiff
should be required, no matter how minimally, to allege some quantum of
detriment caused by the challenged conduct of state officials resulting in the
interruption and/or delay of plaintiff’s pending or contemplated litigation.”)
(quoting Hossman v. Spradlin, 812 F.2d 1019, 1021-22, n. 2 (7th Cir. 1987)). In
fact, it’s questionable whether Hertel could ever make such a showing because his
between the tort and breach of contract claims—legal malpractice claims are governed by tort
principles regardless of whether they are brought as a tort, a breach of contract, or both); Shideler
v. Dwyer, 417 N.E.2d 281, 285-88 (Ind. 1981); Keystone Distribution Park v. Kennerk, Dumas,
Burke, Backs, Long & Salin, 461 N.E.2d 749, 751 (Ind. Ct. App. 1984); see also, Mills v.
Hausmann-McNally, S.C., No. 1:13-CV-00044-SEB, 2015 WL 274174, at *8 (S.D. Ind. Jan. 21,
2015) (“Defendant has confused the general concept of ‘duty’ with the more specific,
context-sensitive concept of a ‘standard of care’ . . . the standard of care expected of an attorney
is the concrete application of his or her general duty to the facts at hand.”) (internal citation and
contemplated malpractice claims could have been timely brought in the state
tribunal at the time Hertel filed this § 1983 action on January 6, 2010.4 But
instead of proceeding on his malpractice action in state court and presenting the
material facts based on his personal recollection without the aid of any of the
confiscated documents, Hertel filed this federal right to access case.5 See Snyder,
380 F.3d at 292 (Easterbrook, J., concurring) (noting that plaintiff is in the wrong
judicial system, seeking the wrong relief, and his pro se status does not “excuse
his failure to take the steps provided or required by the judicial system.”).
Because the timing of events suggest that Hertel had reasonably adequate
opportunity to access remedies in state court, he would not have been denied
access to the courts to bring forth his claims against Skodinski. See Snyder, 380
F.3d at 292 (Easterbrook, J., concurring) (“litigants have ‘access’ to the court
when there are avenues to correct mistakes . . . [and] [a] forum that offers an
opportunity to be heard before a decision becomes final provides due process of
law.”), id. at 294 (Kanne, J., concurring) (“the relief he now seeks on his federal
constitutional access claim was obtainable in state court though other nonconstitutional claims [against the original wrongdoer] . . . [and] where more than
one avenue remained open for the recovery of monetary damages at the time of
the filing of the constitutional access claim, Mr. Snyder was, ipso facto, not
deprived of his constitutional right of access to the courts.”).
Although Hertel has cited several cases involving access to courts claims,
those cases are distinguishable and do not support his having been denied access
to a tribunal. For instance, this is not a case where a plaintiff attempted to file a
lawsuit but the papers were repeatedly rejected or not returned, see, e.g., Snyder v.
Nolen, 380 F.3d 279 (7th Cir. 2004), nor is this a case where a plaintiff actually
filed a lawsuit and lost the suit because his stolen materials could not be produced
to support his claims, see, e.g., Thomson v. Washington, 363 F.3d 969 (7th Cir.
Hertel was convicted on January 31, 2008, self-surrendered on April 16, 2008, and
received permission from the Indiana Court of Appeals to terminate Skodinski and proceed pro
se on March 31, 2009. When Hertel filed this lawsuit on January 6, 2010, his statute of
limitations had not run for a legal malpractice case alleging a failure to seek an appeal bond or
the ineffective handling of his direct appeal. See, e.g., Biomet, Inc. v. Barnes & Thornburg, 791
N.E.2d 760, 765 (Ind. Ct. App. 2003) (noting that the statute of limitation for a claim of legal
malpractice is two years) (citing Ind. Code 34-11-2-4).
Publically available state judicial dockets, upon which this court may rely, reveal that
Hertel never filed a civil lawsuit alleging legal malpractice against Skodinski. Spaine v. Cmty.
Contacts, Inc., 756 F.3d 542, 545 (7th Cir. 2014); 520 S. Michigan Ave. Associates, Ltd. v.
Shannon, 549 F.3d 1119, 1138, n. 14 (7th Cir. 2008) (A court may take judicial notice of state
court dockets). However, given the age of Hertel’s claims, it may be that there is not electronic
access to some dockets, in which case Hertel would have to provide that information in an
2004); Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992). Again, it appears
that Hertel never filed a civil lawsuit alleging legal malpractice against Skodinski,
nor did Hertel attempt to file a malpractice action but was unconstitutionally
prevented/delayed from doing so. And although Hertel argues that the confiscated
documentation would have made it “easier” to pursue his claims against
Skodinski [DE 180 at 13-14]—this fails to allege an injury of a constitutional
magnitude. Thus, Hertel’s bare assertions that he was hindered in pursuing his
malpractice claims against Skodinski do not meet the burden of showing actual
detriment, see Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir. 1987) (mere
assertion that defendants unreasonably interfered with attempts to conduct
meaningful legal research resulted in an inability to adequately defend against an
armed robbery charge and other pending litigation, without more, fails to meet
burden of establishing detriment); Hossman v. Spradlin, 812 F.2d 1019, 1022 (7th
Cir. 1987) (mere assertion that legal papers and law books were intentionally kept
from state prisoner fails, without more, to demonstrate a constitutionally
significant deprivation), especially when state court remedies were available to
him. See Snyder, 380 F.3d at 292–94.
Because Hertel has yet to show how he was constitutionally hindered
from filing a lawsuit against Skodinski in state court at the time he filed the
instant federal action, the Court is considering granting summary judgment in
favor of Defendants on Hertel’s access to courts claims. As a result, the Court
identifies this concern with the expectation that each party will have a full
opportunity to respond and produce evidence. Fed. R. Civ. P. 56(f) (“[a]fter giving
notice and a reasonable time to respond, the court may: . . . consider summary
judgment on its own after identifying for the parties material facts that may not be
genuinely in dispute.”); Simpson v. Merchants Recovery Bureau, 171 F.3d 546,
549 (7th Cir. 1999) (“[w]hile not encouraged, a district court can enter summary
judgment sua sponte,” if the parties have proper notice that the court is
considering granting summary judgment and have fair opportunity to present
evidence in opposition). Because Hertel is proceeding pro se, the Court warns
him that without admissible documentary evidence such as affidavits (as
distinct from argument) to support Hertel’s having been denied access to the
courts to sue Skodinski for legal malpractice at the time he filed this lawsuit,
summary judgment may be granted for the Defendants with final judgment
entered against Hertel.6 See Williams v. Wahner, 731 F.3d 731, 733 (7th Cir.
2013) (citations omitted) (noting that a warning that judgment may be granted for
the defendant is required for pro se plaintiffs) . . . .
The Court would note that Hertel has successfully defeated two motions for summary
judgment by Defendants and certainly understands that judgment could be entered against him
without presentation of his claims to a jury absent his submission of admissible evidence to
dispute the facts noted in this Order.
[DE 186] (emphasis in original).
After being explicitly advised that Hertel faced summary ruling against him absent his
submission of admissible documentary evidence to support his claim,7 Hertel took advantage of
his opportunity to respond and provided the Court with a signed declaration [DE 187] and a
memorandum of law [DE 188] supporting his position that summary judgment should be denied.
The Defendants chose not to respond.
Despite Hertel’s diligent and respectable efforts, after viewing the evidence and drawing
all reasonable inferences in Hertel’s favor, summary judgment is appropriate here because there
is no genuine dispute as to any material fact with respect to Hertel’s not having been denied
access to the courts to sue Skodinski for legal malpractice.8 And thus, for the reasons that follow
(and for the reasons stated in this Court’s previous order, as incorporated herein), the Defendants
are entitled to judgment as a matter of law. See Whiting v. Wexford Health Sources, Inc., 839
F.3d 658, 661 (7th Cir. 2016); Fed. R. Civ. P. 56(a).
In short, Hertel’s declaration provides little insight into how the Defendants prevented
him from filing a complaint in state court at the time Hertel learned of Skodinski’s alleged legal
malpractice.9 Hertel attests that the confiscated legal paperwork included two letters regarding
In addition, the Court provided Hertel with a copy of Appendix C to the local rules
which included the language of Federal Rules of Civil Procedure 56 and N.D. Ind. L.R. 56-1.
The Court assumes that these are non-frivolous legal claims, although the Court notes
that earlier this year the Indiana Court of Appeals denied Hertel’s pro se attempt to contest his
underlying felony drug convictions and Hertel has already served his sentence. See Hertel v.
State, 59 N.E.3d 361 (Ind. Ct. App. 2016) (table).
Even assuming Hertel was required to file a notice of tort claim form within 180 days of
the date that his public defender failed to request an appeal bond or of the date Hertel discovered
that he filed a deficient appellant brief, see Myers v. Maxson, 51 N.E.3d 1267, 1276-80 (Ind. Ct.
Skodinski’s confirmed obligation to seek an appeal bond, various court filings, and copies of
treatises concerning legal malpractice litigation that were unavailable in the law library—which,
according to Hertel, were “required to prosecute an action against Skodinski.” [DE 187]. Hertel
explains that without these documents, he did not have a “fighting chance” to advance his case in
state court. Id. In his memorandum, Hertel goes on to state that the documents taken by
Defendants were “essential to presenting a viable legal malpractice lawsuit . . . [and] the ability
to litigate in state court was effectively foreclosed” without them [DE 188]. Per Hertel, he
should not be required to “exhaust” remedies provided in state court,10 when such a lawsuit
would have been “doomed” without the documentary evidence confiscated by Defendants. Id.
Hertel advances these arguments despite noting that his malpractice claims were straightforward
and certainly within the grasp of any layperson. Id.
The fatal shortcoming in Hertel’s case is that the only harm alleged to have been suffered
by Hertel is his forecasted unsuccessful state litigation. In other words, Hertel is convinced that
had he sued Skodinski in state court for committing legal malpractice, then Hertel most likely
would have lost because he did not have his supporting documentation and the aid of legal
treatises. But no evidence or reasonable inference suggests that any of these documents were
necessary to initiate the process of filing a complaint (or notice of tort claim form) setting forth a
App.), transfer denied, 54 N.E.3d 371 (Ind. 2016), the analysis remains unchanged because
Hertel never indicates that the confiscation of his documents prevented him from filing the form
and pursuing litigation.
Hertel is correct that there is no requirement that a § 1983 claim must await an attempt
to vindicate the same claim in state court. See McNeese v. Board of Education, 373 U.S. 668, 672
(1963). But the concern here is not whether Hertel should have brought his right-to-access
constitutional claim in state court, but whether he was ever denied access when judicial remedies
were available for him to pursue his state malpractice claims.
short plain statement of his state law malpractice claims. See Trail v. Boys & Girls Clubs of Nw.
Indiana, 845 N.E.2d 130, 135 (Ind. 2006) (citing Indiana Trial Rule 8(A)); see also Ind. Code 3414-3-10 (requirement of a tort claim form). Nor has Hertel indicated that the Defendants’ actions
actually caused him to lose the opportunity to sue, to miss making a timely filing/mailing, or to
have suffered dismissal of legitimate claims because of the denial of reasonable access to his
legal documents. Thus, the prejudice as described by Hertel is only speculative. And speculative
prejudice is not prejudice as required to show a constitutional violation. See Christopher v.
Harbury, 536 U.S. 403, 414-15 (2002) (noting that with this type of “backward-looking” claim, a
plaintiff must describe the underlying litigation that he lost because of the illegal interference).
The relief Hertel now seeks on his federal constitutional access claim was obtainable in state
court through other non-constitutional claims. Thus, it goes without saying that if nothing
actually hindered Hertel’s efforts from pursuing (presumably non-frivolous) legal malpractice
claims against Skodinski, then he could not have suffered any injury at the hands of these
Defendants.11 See, e.g, Musgrove v. Detella, 74 F. App’x 641, 645 (7th Cir. 2003) (holding that
the district court properly granted the defendants Rule 50(a) motion because plaintiff had no
evidence of actual injury, and plaintiff could have filed a suit even without the missing
Though the pleading standard for pro se litigants is liberal, it is not without its limits and
it does not abrogate the basic evidentiary burdens essential on summary judgment in pro se suits.
The Court’s previous denial of summary judgment with respect to any official policy or
custom for which the municipality could be held liable assumed that Hertel could show actual
injury. Since Hertel has not come forward with evidence of any constitutional injury, any claim
against the municipality is also defeated. See, e.g., Jones v. City of Elkhart, Ind., 737 F.3d 1107,
1115 (7th Cir. 2013).
A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As the
Supreme Court explained in Lewis v. Casey, 518 U.S. 343, 349-53 (1996), and reiterated in
Christopher, 536 U.S. at 415, a prisoner claiming that he was denied access to the courts must
prove that he suffered an actual injury by showing that unjustified acts or conditions hindered his
ability to pursue a non-frivolous legal claim. Because no jury could find that Hertel suffered an
injury of a constitutional magnitude concerning the malpractice claims he could have brought,
summary judgment is GRANTED for the Defendants with final judgment entered against Hertel.
ENTERED: December 22, 2016
/s/ JON E. DEGUILIO
United States District Court
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