Holleman v. Zenk et al

Filing 9

OPINION AND ORDER: The complaint is DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to close this case. Signed by Judge Philip P Simon on 10/9/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBERT L. HOLLEMAN,
Plaintiff,
vs.
MR. ZENK, et al.,
Defendants.

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CAUSE NO. 3:18CV490-PPS

OPINION AND ORDER
Robert L. Holleman, a pro se prisoner, filed an amended complaint pursuant to 42
U.S.C. § 1983. ECF 8. “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).
Nevertheless, pursuant to 28 U.S.C. § 1915A, I 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). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).

Holleman is currently incarcerated at the Wabash Valley Correctional Facility
(“Wabash”). He sues for events that took place at the Lake County Jail in May and July
of 2018. Holleman was briefly incarcerated at the Lake County Jail twice this year to
attend scheduled court hearings in connection with pursing post-conviction relief. On
both occasions, he arrived at the jail with various exhibits, motions and legal materials.
The Lake County Jail has a policy that did not allow him to keep possession of his legal
materials. He claims this policy made it hard for him to “prepare for his evidentiary
hearing” that he is litigating in Cause No. 4CR2661176978. Additionally, when he did
receive his legal materials, the staples had been removed and the papers were all mixed
up and thrown into two bags. As a result, Holleman was not prepared for the hearing,
and the hearing had to be rescheduled. The defendants’ policy and practice, Holleman
claims, infringed on his right to access the courts in connection with his post-conviction
proceeding.
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). The right of individuals to pursue legal redress
for claims that have a reasonable basis in law or fact is protected by the First
Amendment right to petition and the Fourteenth Amendment right to substantive due
process. Id. (citations omitted). 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
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); 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 the right been
infringed. Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). Thus, to state a claim,
Holleman 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.
Here, Holleman’s allegations do not meet this standard. He indicates that his
post-conviction proceeding is still pending. As such, there is no basis for inferring that
he has suffered any actual injury. see In re Maxy, 674 F.3d 658, 661 (7th Cir. 2012) (“Relief
for the denial of access to the courts is intended to remedy rights denied in a separate
case due to the impediment. . . . [T]he right is ancillary to the underlying claim, without
which a plaintiff cannot have suffered injury by being shut out of court.”) (internal

citation omitted). Though the alleged policy seems questionable and the alleged actions
of the jail staff appear troubling, Holleman makes no mention that he has suffered any
prejudice in his post-conviction case – nor does he suggest there has been any other
concrete injury as a result of his inability to access his legal materials.
At most, Holleman explains that his post-conviction proceedings were briefly
delayed as a result of the defendants’ policies and practices. However, a mere delay in
litigation is insufficient to demonstrate injury. “[A] delay becomes an injury only if it
results in actual substantial prejudice to specific litigation.” Johnson v. Barczak, 338 F.3d
771, 773 (2003) (quotation mark omitted). In Johnson, the Seventh Circuit found that a
delay of more than a year did not constitute actual injury because there was no
indication that the adjudication of his post-conviction proceeding was adversely
impacted by the delay. Id. The same is true here. Because Holleman has not alleged any
actual injury in the state post-conviction proceeding, he “cannot prevail on his
access-to-courts claim.” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (citing Lewis v.
Casey, 518 U.S. 343, 350 (1996).
Because the facts alleged here do not permit me to plausibly infer that
Holleman’s inability to access his legal materials resulted in any actual injury to his
post-conviction proceeding, the complaint does not state a claim for which relief can be
sought. However, because it cannot be determined whether Holleman will suffer any
future injury in that case, the dismissal will be without prejudice. Should Holleman
suffer any future actual injury, he will be free to re-file a new case at that time.
ACCORDINGLY:

The complaint is DISMISSED WITHOUT PREJUDICE. The clerk is DIRECTED to
close this case.
SO ORDERED on October 9, 2018.
/s/Philip P. Simon_____
Judge
United States District Court