Rushing v. Elkhart County et al

Filing 19

OPINION AND ORDER denying 15 Motion for Evidence to be Sealed, denying 17 Motion for Ex-parte Hearing and granting 18 Motion for Extension of Time to File. Rushing is GRANTED to and including 8/20/18 to file an amended complaint along with any exhibits and is CAUTIONED that if he does not respond by the deadline this case is subject to dismissal. Signed by Judge Philip P Simon on 7/18/18. (Copy mailed to pro se party). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARK RUSHING,
Plaintiff,
v.
ELKHART COUNTY, et al.,
Defendants.

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Cause No. 3:18-CV-181 PPS

OPINION AND ORDER
Mark Rushing, pro se, filed a complaint in the United States District Court for the
Southern District of Indiana, which was transferred here. ECF 1, 5, 6, 7. Rushing
generally alleged that Elkhart County Sheriff’s Department Officers B. Bush and B.
Fitzgerald were hindering his efforts to litigate various state and federal cases. Because
the complaint was vague, I found that he did not state a claim for which relief could be
granted. I gave Rushing leave to clarify his allegations in an amended complaint, in the
spirit of Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).
Rushing has now filed an amended complaint. Pursuant to 28 U.S.C. § 1915A, the
court must review 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. I apply the same standard
under § 1915A as when addressing a motion to dismiss under FEDERAL RULE OF CIVIL
PROCEDURE 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). Under

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federal pleading standards,
a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (quotation marks and internal citations
omitted). Furthermore, “[t]hreadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 678. To survive
dismissal, the plaintiff “must do better than putting a few words on paper that, in the
hands of an imaginative reader, might suggest that something has happened to her that
might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir.
2010) (emphasis in original).
Rushing’s amended complaint suffers from the same deficiency as his original. It
generally alleges that these two officers withheld various legal materials and supplies
from him, hindering his litigation efforts in unidentified cases. As I previously
explained, these vague allegations are insufficient to state a constitutional claim. 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 did not eliminate the actual injury requirement as a
constitutional prerequisite to a prisoner asserting lack of access to the courts). In other

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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) (emphasis in
original). Thus, to state a claim, Rushing must “spell out, in minimal detail” the
connection between the denial of access to legal materials and the resulting prejudice to
a potentially meritorious legal claim. Id.
Unfortunately, I am still in the dark as to whether the defendants’ conduct
prejudiced any potentially meritorious legal claim. Rushing has still not explained
which case has been prejudiced, specified how that case has been prejudiced, or how
that prejudiced case was otherwise meritorious. Therefore, Rushing’s amended
complaint lacks sufficient facts to adequately plead that the defendants’ conduct have
denied him meaningful access to the courts. Because his filing is again unduly vague,
Rushing will be granted one more opportunity to re-plead his claims. See Luevano v.
Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).
Additionally, Rushing has requested an extension of time to file exhibits to his
complaint. ECF 18. This will be granted and he will be permitted to file those along with
his amended complaint. Rushing has also requested to file his forthcoming exhibits
under seal. ECF 15; ECF 17. However, he does not explain what exhibits he plans to file
or why be believes they should be filed under seal. This is a problem. “The public at
large pays for the courts and therefore has an interest in what goes on at all stages of a

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judicial proceeding.” Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d
943, 945 (7th Cir. 1999). Therefore, “very few categories of documents are kept
confidential once their bearing on the merits of a suit has been revealed.” Baxter Int’l,
Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002). Rushing has seemingly placed these
yet-to-be filed documents at issue in this proceeding, as he claims they are relevant to
the defendants’ interfering with his access to the courts. Consequently, the premature
motions to seal will be denied. However, if Rushing has a legitimate reason as to why
these documents and/or exhibits should be sealed from the public, he can raise that
issue in a motion to seal when he files the documents with the court.
Accordingly,
(1) the motions (ECF 15, 17) to seal are DENIED;
(2) the motion (ECF 18) for an extension of time is GRANTED;
(3) Rushing is GRANTED to and including August 20, 2018, to file an amended
complaint along with any exhibits; and
(4) Rushing is CAUTIONED that if he does not respond by the deadline, this case
is subject to dismissal pursuant to 28 U.S.C. § 1915A because the amended complaint
does not state a claim upon which relief can be granted.
SO ORDERED on July 18, 2018.
/s/ Philip P. Simon
Judge
United States District Court

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