Jacobs v. Gerber
Jacobs v. Gerber
Opinion of the Court
ORDER
Chris Jacobs, an inmate at the Wisconsin Secure Program Facility, filed suit under 42 U.S.C. § 1983, claiming that beginning in 2007 three prison employees— Pamela Bartels, Christine Beerkircher, and Tracy Gerber — prevented him from filing internal grievances and denied him access to the courts. The district court granted summary judgment first to Bartels, finding that she had stopped working at the prison five years before the alleged constitutional violations occurred. Several months later the court granted summary judgment for Gerber and Beerkircher. We affirai the judgment of the district court.
We first address a threshold dispute regarding the scope of this appeal. Gerber and Beerkircher contend that we should ignore Jacobs’s challenge to the grant of summary judgment to Bartels because Jacobs already contested that decision with an earlier appeal. See Jacobs v. Gerber, No. 09-3250 (7th Cir. docketed Sept. 10, 2009) (dismissed on November 3, 2009, for failure to pay docketing fee). But when the district court granted summary judgment for Bartels, that ruling was not then appealable because the claims against Gerber and Beerkircher remained pending, and the court did not certify its ruling for immediate appeal. See Fed.R.CivP. 54(b); Granack v. Cont’l Cas. Co., 977 F.2d 1143, 1144-45 (7th Cir. 1992). Because we had no jurisdiction to decide the merits of Jacobs’s earlier appeal, his prior filing does not limit the current appeal.
On the merits of the claim against Bartels, we can be brief. Bartels submitted an affidavit explaining that she could not have committed the constitutional violations that Jacobs says started in 2007 because she stopped working at the prison in 2002. Jacobs did not produce any evidence to dispute Bartels’s affidavit. Thus summary judgment in favor of Bartels was proper.
That brings us to Jacobs’s claims against Beerkircher. Beerkircher was a complaint examiner for the Inmate Complaint Review System. Jacobs contends that she routinely refused to process his complaints and she denied him inmate-grievance forms. Because 42 U.S.C. § 1997e(a) requires prisoners to exhaust administrative remedies before filing suit, Jacobs argues that Beerkircher impaired his ability to pursue his legal claims. In her motion for summary judgment, Beerkircher attested that she rejected Jacobs’s complaints only when he refused to comply with the prison’s procedures for filing complaints, and she limited his access to complaint forms because Jacobs filed an excessive number of noncompliant grievances. Specifically, between May 2007 and May 2008, Beerkircher denied over 800 of his complaints, citing repeated procedural defects in his claims. (Over 130 of Jacobs’s complaints were accepted after he followed the proper procedures.) Another com
The district court granted Beerkircher’s motion because Jacobs had not submitted evidence that Beerkircher had impeded any nonfrivolous lawsuits. Jacobs’s “conclusory allegations” that he “had lawsuits dismissed” were not enough because, of all of the suits Jacobs litigated during 2007 and 2008, none were dismissed for failure to exhaust.
We review the district court’s grant of summary judgment to Beerkircher de novo, drawing all reasonable inferences in favor of Jacobs. See Crews v. City of Mt. Vernon, 567 F.3d 860, 864 (7th Cir. 2009). To establish his claim that Beerkircher denied him access to the courts, Jacobs must show that, by preventing him from filing grievances to exhaust his administrative remedies, Beerkircher impeded his litigation of a nonfrivolous legal claim. See Lewis v. Casey, 518 U.S. 343, 352-53, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Pratt v. Tarr, 464 F.3d 730, 732 (7th Cir. 2006); Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). Furthermore, the exhaustion of administrative remedies requires prisoners to follow the procedures established by the state for processing grievances. Pozo v. McCaughtry, 286 F.3d 1022, 1024-25 (7th Cir. 2002). Based on the mountain of evidence that Beerkircher submitted showing that Jacobs regularly violated these procedures, coupled with Jacobs’s own concession that he frequently filed excessive complaints on improper forms, it was Jacobs, not Beerkircher, who impeded his litigation. In any event, Jacobs offered no evidence that any of his cases were dismissed for failure to exhaust, so Jacobs has not shown an actual injury.
Last, we come to Jacobs’s claims against Gerber. Jacobs argues that Gerber denied him access to the courts by interfering with his use of Wisconsin’s loan program for inmate litigation. Wisconsin’s program provides indigent inmates up to $200 each year for certain litigation-related expenses, such as paper, photocopies, and postage. See Wis. Adm. Code § 309.51. To use the program, inmates must complete a loan application each year, and, if approved, they can access the funds by submitting disbursement requests to the prison’s business office. Inmates are limited to one disbursement request per week to ensure that the business office is not overburdened. Under the program, participating inmates receive paper specially marked as “legal correspondence,” which they may use only for “correspondence to courts, attorneys, parties in litigation, the Inmate Complaint Review System, or the parole board.” § 309.51. Apart from the program, all inmates also receive a weekly allowance of writing materials and postage, which can be used for any purpose.
Unlike his claims against Beerkircher, Jacobs identifies two cases when Gerber’s actions supposedly harmed his ability to pursue his legal claims. But neither case supports an actual injury. In one case Jacobs argues that a court dismissed his case after Gerber had denied his request to copy medical records. But that case was dismissed because Jacobs refused to comply with the court’s order to provide defendants with a signed authorization to review his medical records. Jacobs contends that, in the other case, Gerber refused to provide him with postage to mail his notice of appeal, and his appeal was later dismissed as untimely. But Jacobs has not explained why that earlier appeal had any merit, and without such an explanation, we cannot say that he was injured by the dismissal, even if Gerber’s actions interfered with his ability to file a notice of appeal. See Tolefree v. Cudahy, 49 F.3d 1243, 1244 (7th Cir. 1995). In any event, Jacobs is not constitutionally entitled to a state-supplied subsidy to prosecute his civil suits and file his appeals. United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003); Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir. 2002). Because Wisconsin is under no constitutional duty to maintain its inmate-loan program, the prison may condition the receipt of funds on acceptable behavior. See Gaines v. Lane, 790 F.2d 1299, 1308 (7th Cir. 1986). Although Jacobs may disagree with those conditions, Gerber’s enforcement of the prison’s procedures does not itself deny Jacobs access to the courts.
Jacobs also argues that Gerber seized his outgoing legal mail in violation of his rights under the First Amendment. But the alleged violation concerns Gerber’s refusal to supply postage for Jacobs’s notice of appeal. Although the district court analyzed this as a separate claim for interference with his legal mail, Jacobs’s arguments are better understood as the aceessto-court claim that we have rejected.
Finally, we advise Jacobs that he has accrued more than three strikes under the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g). He incurred two strikes for filing frivolous suits in district court. See Jacobs v. Prison Record Dep’t, No. 3:10-cv-00140 (E.D.Wis. May 7, 2010) (dismissing state-law claim for lack of subject-matter jurisdiction); Jacobs v. Frank, No. 2:07-cv-00055, 2007 WL 1203583 (E.D.Wis. Apr. 23, 2007) (dismissing complaint for failure to state a claim). He earned another strike for taking a frivolous appeal from
AFFIRMED.
Reference
- Full Case Name
- Chris J. JACOBS, III v. Tracy GERBER
- Cited By
- 4 cases
- Status
- Published