Michael Morris v. Tammy Dickman ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2019 *
Decided November 4, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17-3074
MICHAEL MORRIS, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 15-cv-712-wmc
TAMMY DICKMAN and William M. Conley,
DIANE FREMGEN, Judge.
Defendants-Appellees.
ORDER
Michael Morris, a Wisconsin inmate, sued a Wisconsin clerk of court and two
other state officials under 42 U.S.C. § 1983, alleging that they violated the First
Amendment by denying him access to the courts to litigate several petitions for writs of
mandamus. The district court dismissed one defendant at screening and later granted
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-3074 Page 2
the remaining defendants’ motion to dismiss. We affirm the judgment because Morris
fails to allege that any defendant prevented him from litigating meritorious petitions.
This case arose after Morris lost his bids on petitions for writs of mandamus that
he filed with Wisconsin’s courts. Morris principally blames one state employee—Diane
Fremgen (the Clerk of Court for Wisconsin’s appellate and supreme court)—for several
losses. On review of his dismissed complaint, we accept his factual allegations as true.
See Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006).
The first loss was Morris’s unsuccessful petition for a writ of mandamus in state
appellate court in 2013. Morris’s petition asserted that Fremgen’s office removed
documents from his criminal-appeal file and prevented him from filing documents in
his case. In docketing his petition, Fremgen allegedly made two mistakes. The first
involves the caption of the petition. It listed a judge (who had previously prosecuted
Morris) as the sole defendant, though the petition’s contents targeted Fremgen and a
deputy clerk. Morris asked Fremgen to change the caption, but she did not. The second
error occurred after Morris submitted a “motion for discovery” under his petition’s case
number. Fremgen did not record a separate docket entry for the motion, which Morris
admits had nothing to do with his petition. Later, the state appellate court denied
Morris’s petition on the merits. It explained that, after considering the “numerous other
documents in support of the petition,” it was unclear what relief Morris sought—“much
less what plain legal duty he believes was violated, and by what official.”
The second litigation loss involved a case that Morris filed in the Wisconsin
Supreme Court. After Morris lost his petition for mandamus in the appellate court, he
filed an action in the state supreme court, using the same case number as the denied
petition. Though Morris intended the new petition to invoke that court’s original
jurisdiction, Fremgen’s office docketed the request as a “petition for review.” Morris
told Fremgen that he was not seeking review of the appellate court’s decision, but
wanted to commence an original action. Fremgen did not re-docket the case. The state
supreme court considered the petition and denied it on the merits.
The third loss concerns other petitions for writs of mandamus that Morris filed in
state appellate court while his first petition was pending. These petitions restated the
allegations of his first petition and asked the court of appeals to address his “motion for
discovery.” Concerned that Fremgen had not docketed these properly, Morris wrote to
the Chief Justice of the Wisconsin Supreme Court. The Justice forwarded the letter to
Fremgen, who responded that his documents had been either reviewed by the court of
No. 17-3074 Page 3
appeals, construed as part of his petition for review to the supreme court, or were
docketed without further action because they were filed after his case had been closed.
Morris accuses two other state employees of impeding his access to the courts.
He faults David Rice, the assistant attorney general who was counsel for the state in
Morris’s petitions, for failing to ensure that his documents were docketed. He also
alleges that Tammy Dickman, who works where Morris is imprisoned, failed to mail his
petitions.
The district court dismissed Morris’s suit in two phases. After screening his
amended complaint, the court dismissed the claims against Rice, reasoning that “Rice
had no duty to ensure [Morris’s] filings were made.” Fremgen and Dickman later
moved to dismiss the suit. Morris opposed the motion to dismiss and asked the court to
recruit counsel for him. See 28 U.S.C. § 1915(e)(1). He argued that, although he was
“capable” of doing “his own legal research” and could “prepare his own motions and
[understood] the processes,” he needed counsel to file his documents with the court.
The court denied Morris’s request. It also ruled that the Eleventh Amendment barred
Morris’s claims against the defendants in their official capacities, the complaint failed to
state an access-to-court claim against them personally, and the defendants were entitled
to qualified immunity. (On appeal Morris does not challenge the dismissal of his claims
against Dickman, so we say nothing further about her.)
Turning to Morris’s appeal, we first determine that the district court properly
dismissed Rice at screening. Morris does not accuse Rice of preventing him from filing
documents; rather, he alleges only that Rice did not rectify the alleged errors of others.
But a state employee who has not created a danger or limited a plaintiff’s ability to help
himself has no constitutional duty to aid the plaintiff. See DeShaney v. Winnebago Cty.
Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). And Morris identifies no other duty that
Rice, as a lawyer for the state, owed Morris as he litigated against Rice’s client.
The district court also correctly dismissed Morris’s official-capacity claim against
Fremgen. This is effectively a claim for damages against the state and thus it is not
permitted under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(a state official acting in her official capacity is not a suable “person” under § 1983);
see also Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 779–80 (2000) (courts
must decide statutory issues before Eleventh Amendment issues).
Morris’s personal-capacity claim against Fremgen also fails. To state an
access-to-courts claim, a prisoner must allege that the defendant rendered the plaintiff
No. 17-3074 Page 4
unable “to pursue a legitimate” claim. Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009);
see also Christopher v. Harbury, 536 U.S. 403, 415 (2002). Morris fails to state a claim with
respect to his first petition for a writ of mandamus. He alleges that Fremgen failed to
change the petition’s caption to reflect that Morris was targeting Fremgen and her
deputy, but this omission did not prevent Morris from litigating his claims in court. The
petition’s contents alleged that Fremgen and the deputy clerk committed wrongs, the
state court considered all of Morris’s “numerous” documents, and it ruled that these
documents presented no basis for relief against anyone. Thus, Fremgen did not impede
Morris’s access to the court. The same is true of Morris’s allegation that Fremgen
misdocketed his petition for original jurisdiction in the state supreme court as a petition
for review. Regardless of the docketing label, the high court assessed the petition’s
contents and ruled on it. So again, Fremgen did not block Morris from court.
Morris’s contentions that Fremgen did not properly docket other documents that
he filed also fail to state an access-to-courts claim. Morris first argues that Fremgen
impeded his attempts to litigate his petitions because she never separately docketed his
“motion for discovery.” Yet Morris has not alleged, with respect to his petitions, that his
motion presented a “potentially meritorious challenge.” See Marshall v. Knight, 445 F.3d
965, 968 (7th Cir. 2006). To the contrary, he admits that the motion had nothing to do
with his petitions. Thus, once again Morris’s own acknowledgments defeat his claim
that misdocketing harmed his petitions. Moreover, as mentioned above, in denying his
first petition, the appellate court said that it considered Morris’s “numerous other
documents.” So the court’s review of his submissions, no matter how Fremgen
docketed them, would have included the motion. Likewise, Fremgen’s alleged errors in
misdocketing Morris’s other petitions also do not support a claim. These petitions
merely reasserted the claims in Morris’s first petition, which the state court had already
considered and rejected, or they asked the court to address his irrelevant “motion for
discovery.” Thus, the errors did not harm Morris’s ability to litigate meritorious claims.
See Eichwedel v. Chandler, 696 F.3d 660, 673 (7th Cir. 2012) (access-to-court claim failed
where prisoner did not identify “any nonfrivolous, arguable underlying claim” he was
prevented from bringing) (internal quotation marks omitted).
Finally, we do not disturb the district court’s denial of Morris’s motion for
recruitment of counsel because Morris cannot demonstrate prejudice—i.e., a reasonable
likelihood that counsel would have made a difference in the case’s outcome. See Pruitt
v. Mote, 503 F.3d 647, 659–60 (7th Cir. 2007) (en banc). Morris wanted an attorney to help
file his documents with the district court and to obtain copies of his state-court filings.
But the district court accepted all documents that Morris submitted, and (as he admits)
No. 17-3074 Page 5
Morris was able to explain in his pleadings the contents of his state-court documents.
See Tidwell v. Hicks, 791 F.3d 704, 709 (7th Cir. 2015). Thus, Morris cannot identify what a
lawyer could have done to salvage any of his legally deficient claims.
We have considered Morris’s remaining arguments, and none has merit.
AFFIRMED