Brown v. Carter et al

Filing 8

OPINION AND ORDER: The court GRANTS the plaintiff until 12/19/2022, to file an amended complaint if he so chooses; and CAUTIONS him that if he does not respond by the deadline, this case will be dismissed pursuant to 28 U.S.C. § 1915A because the current complaint does not state a claim upon which relief can be granted. Signed by Judge Damon R Leichty on 11/21/2022. (sej)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRYAN KEITH BROWN,
Plaintiff,
v.

CAUSE NO. 3:22-CV-646-DRL-MGG

ROBERT CARTER et al.,
Defendants.
OPINION AND ORDER
Bryan Keith Brown, a prisoner without a lawyer, filed a civil rights complaint
under 42 U.S.C. § 1983. As required by 28 U.S.C. § 1915A, the court must review the
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. 28 U.S.C. § 1915A. To proceed beyond the pleading stage, a complaint
must contain sufficient factual matter to “state a claim that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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).
Because Mr. Brown is proceeding without counsel, the court must give his allegations
liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Mr. Brown is incarcerated at Indiana State Prison (ISP). He alleges that he was
denied access to the law library between October 2020 and July 2021, causing him to miss
the deadline for filing a petition for writ of certiorari with the Supreme Court. His

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allegations and the public record reflect that in 2018, he sought federal habeas relief in
this district challenging his criminal conviction.1 See Brown v. Superintendent, 3:18-CV-487JD-MGG (N.D. Ind. closed June 4, 2019). The court denied his petition in June 2019 and
also denied his motion to alter or amend the judgment. Id. He sought review in the
Seventh Circuit, but in October 2020 that court denied his request for a certificate of
appealability. Id., ECF 46-1. To seek review in the Supreme Court, he was required to file
a petition for writ of certiorari by March 15, 2021. (ECF 1-1 at 8.)
He claims that from late October to late November 2020, the prison was on
quarantine due to the COVID-19 pandemic. He further claims that during the “holiday
months” of November to January, his access to the law library was “limited.” Then in late
January 2021, the prison went on an extended lockdown due to the murder of a prison
guard, which continued until July 2021. Inmates could not go to the law library during
the lockdown. He claims that he notified Todd Marsh, who he identifies as a “Case
Manager,” about his filing deadline but never heard anything back. After the lockdown
lifted, Mr. Brown filed an untimely petition for writ of certiorari, but it was returned to
him unfiled. (ECF 1-1 at 8.) The Supreme Court stated that it lacked jurisdiction to
consider the petition because the time for filing a petition for writ of certiorari had already
expired. (Id.)
It can be discerned from the complaint that in addition to physically going to the
law library, inmates are also given electronic tablets to access the internet. However, Mr.

The court is permitted to take judicial notice of public records at the pleading stage. See FED. R.
EVID. 201; Tobey v. Chibucos, 890 F.3d 634, 647 (7th Cir. 2018).
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Brown claims he was without a tablet during this period. He attaches documentation
showing that he inquired about getting a tablet in July 2020, stating that the lack of a
tablet was impacting his ability to contact his family. (ECF 1-1 at 13.) He was told that
because his old tablet was broken, he would have to pay $250 to get a new one. (Id.)
Based on these events, he sues Indiana Department of Correction (IDOC)
Commissioner Robert Carter, ISP Warden Ron Neal, and Case Manager Todd Marsh for
$1 million dollars and other relief. He claims that their actions caused him to lose out on
the opportunity to seek review in the Supreme Court. He acknowledges that the Supreme
Court only accepts a small number of cases for review each year, but in his words, “any
chance beats no chance.”
Prisoners are entitled to meaningful access to the courts, but there is no “abstract,
freestanding right” to legal materials. Lewis v. Casey, 518 U.S. 343, 351 (1996). Instead, an
access-to-the-courts claim hinges on whether there was prejudice to a non-frivolous legal
claim related to the prisoner’s conviction, sentence, or conditions of confinement.
Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). In other words, “only if the
defendants’ conduct prejudices a potentially meritorious [claim] has the right been
infringed.” Id. Thus, to state a claim, the inmate is required to “spell out” the connection
between the denial of access to the courts and the resulting prejudice to a potentially
meritorious legal claim. Id.
Mr. Brown claims that his access to the law library was limited due to an unusual
set of circumstances occurring between October 2020 and July 2021. However, it can be
discerned that he was not without library access during this entire period. Specifically, a
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letter he attaches to the complaint reflects that inmates had “limited” access to the law
library during the quarantine. (ECF 1-1 at 1.) His allegations make clear that that he had
some limited access during November, December, and January. He does not allege why
this was not enough time to prepare a petition for writ of certiorari, or at least to file a
motion seeking an extension of time to do so. See S. CT. R. 13.5 (“For good cause, a Justice
may extend the time to file a petition for a writ of certiorari . . . . The application must be
filed within the Clerk at least 10 days before the date the petition is due, except in
extraordinary circumstances.”).
Additionally, he does not identify any of the issues he would have raised with the
Supreme Court. Without such information, he has not plausibly alleged prejudice to a
non-frivolous legal claim. Christopher v. Harbury, 536 U.S. 403, 416 (2002) (to allege a claim
for denial of access to the courts, the “predicate claim [must] be described well enough to
apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying
claim is more than hope”); Howard v. Webster, 339 F. Appx. 616, 618–19 (7th Cir. 2009)
(“Howard has not identified . . . the potential grounds he wished to raise in his petition
for a writ of certiorari, thus making it impossible for the district court or this court to
evaluate whether his underlying claim would have raised a nonfrivolous issue.”).
In addition to these problems, two of the defendants he names are high-ranking
officials, and it appears he is trying to hold them liable because they are responsible for
overseeing operations within the IDOC. But there is no general respondeat superior liability
under 42 U.S.C. § 1983, and these officials cannot be held liable for damages solely
because they hold supervisory positions. Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir.
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2018); Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). They can be held liable if they
“know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Doe
v. Purdue Univ., 928 F.3d 652, 664 (7th Cir 2019.) Mr. Brown has not satisfied this pleading
standard. Although these defendants may have had some role in imposing the quarantine
or the lockdown, it is evident from the complaint that these steps were taken in response
to serious threats to the safety and security of the facility—a public health pandemic and
the death of a prison guard. There is no indication these officials had personal knowledge
of Mr. Brown’s filing deadline or that they made individualized decisions about his
movements during this period so as to cause him to miss the deadline. See Howard, 339 F.
Appx. at 618. Nor are there allegations to suggest they were personally aware he was
without a tablet during this period, or that they condoned or facilitated the actions of staff
in denying him access to legal materials. He has not stated a plausible constitutional claim
against these defendants.
As to Mr. Marsh, he claims he informed him about his filing deadline but did not
hear anything back. In support, he cites to a memorandum attached to the complaint,
which is dated December 7, 2020, and addressed to his “counselor” (who he does not
name). (ECF 1-1 at 4.) Mr. Brown identifies Mr. Marsh as a “case manager” in his
complaint, so it is somewhat unclear whether he gave this memorandum to Mr. Marsh.
Assuming he did, it makes no mention of him being without a tablet, and his earlier
inquiry about the tablet to another prison employee linked it only to his inability to
contact his family. (ECF 1-1 at 13.) At most he alleges circumstances suggesting
negligence by Mr. Marsh in not following up to ensure he had a tablet while the law
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library was inaccessible, but “an allegation of simple negligence will not support a claim
that an official has denied an individual of access to the courts.” Snyder v. Nolen, 380 F.3d
279, 291 (7th Cir. 2004). Assuming he properly alleges intentional conduct by Mr. Marsh,
his failure to identify the issues he wanted to raise in a petition for writ of certiorari dooms
his claim. See Howard, 339 F. Appx. at 619.
Therefore, the complaint does not state a claim upon which relief can be granted.
In the interest of justice, the court will allow Mr. Brown an opportunity to amend his
complaint if after reviewing the court’s order he believes that he can state a plausible
constitutional claim based on these events, consistent with the allegations he has already
made under penalty of perjury. See Abu-Shawish v. United States, 898 F.3d 726, 738 (7th
Cir. 2018); Luevano v. Wal-Mart, 722 F.3d 1014, 1024 (7th Cir. 2013).
For these reasons, the court:
(1) GRANTS the plaintiff until December 19, 2022, to file an amended complaint
if he so chooses; and
(2) CAUTIONS him that if he does not respond by the deadline, this case will be
dismissed pursuant to 28 U.S.C. § 1915A because the current complaint does not state a
claim upon which relief can be granted.
SO ORDERED.
November 21, 2022

s/ Damon R. Leichty
Judge, United States District Court

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