Floyd May v. Paula Rich , 375 F. App'x 592 ( 2010 )

NONPRECEDENTIAL DISPOSITION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 March 24, 2010*
Decided April 27, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
ANN C LAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-1303
FLOYD MAY, Appeal from the United
Plaintiff-Appellant, States District Court for the
Central District of Illinois.
v.
No. 04-1127
PAULA RICH, Harold A. Baker, Judge.
Defendant-Appellee.
Order
Floyd May is a prisoner of Illinois and Paula Rich a paralegal and notary public em-
ployed at the prison to assist its inmates. They don’t get along; May has sued Rich fre-
quently, including 14 suits (half naming Rich among the defendants) in 2003 alone. Nos.
03-1085 to 03-1098 (C.D. Ill. Filed Mar. 31, 2003).
The judge directed May to show that he had exhausted his administrative remedies,
as the Prison Litigation Reform Act requires. See 42 U.S.C. §1997e(a); Booth v. Churner,
532 U.S. 731 (2001). Shortly before the deadline for proof of exhaustion, the court re-
ceived motions to dismiss all 14 suits voluntarily. Each had been signed (or appeared to
have been signed) by May; Rich notarized each signature. The court dismissed the suits
without prejudice. May then moved to reinstate them, contending that someone (per-
haps Rich) had forged his signatures. The judge held a hearing and concluded that May
was lying when he denied signing the notices. He declined to reinstate the 14 suits.
Instead of appealing, or refiling the suits, May filed this suit against Rich under 42
U.S.C. §1983 plus state law. He advanced three principal claims: (1) that Rich had retali-
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 08-1303 Page 2
ated against him—not only by forging the notices of dismissal but also by writing disci-
plinary tickets—because of his suits and complaints against her; (2) that Rich denied him
access to the courts by causing the court to dismiss the 14 suits; (3) that Rich violated the
Illinois Notary Public Act by attesting to the authenticity of signatures that had been af-
fixed outside her presence. One might have supposed that the judge’s finding when de-
clining to reinstate the 14 suits would block this litigation as a matter of issue preclusion
(collateral estoppel), but the district judge held otherwise and Rich has abandoned her
preclusion defense; we do not mention this possibility again.
The district court held a jury trial, at which the parties contested two principal issues:
first whether Rich had a grudge against May, and second whether May signed the no-
tices of dismissal. There was a collateral question whether the notices mentioned Rich’s
name when she attested the signatures—for a person may not notarize documents in
which she has a personal interest. 5 ILCS 312/6-104(b). May, who has a history of for-
gery (he has twice been disciplined for forging money orders), insisted that Rich was
the forger this time. The jury must have agreed; it returned a general verdict of $2,388
in his favor. But the judge then granted Rich’s motion for judgment as a matter of law,
see Fed. R. Civ. P. 50, ruling that May had not established injury. Because the dismissals
were without prejudice, May could have filed again but chose not to.
Both of May’s constitutional claims are variants on a contention that Rich deprived
May of access to the courts. The only difference is that one theory depends on Rich’s
motive while the other doesn’t. Either way, May needed to show that he suffered
prejudice in the sense that Rich’s actions cost him a victory in the 14 suits (or at least cost
him his chance at victory). See Lewis v. Casey, 518 U.S. 343 (1996). And for two reasons
May failed to establish this essential ingredient. First, as the district court observed, the
dismissals were without prejudice, so May could have started over. (He does not con-
tend that the statute of limitations would have prevented renewal of the suits.) Second,
his failure to exhaust administrative remedies doomed the suits. May responds that he
had asked the district judge for more time in the original 14 suits to show that he had
exhausted his remedies. True enough, but May still had to demonstrate exhaustion. It is
now almost seven years after the 14 suits were dismissed, yet in all this time May has
never even tried to show that he exhausted his administrative remedies. So no access-
to-the-courts theory can prevail.
This leaves the claim under state law. The district judge thought it a bad one be-
cause, even if May did not sign in Rich’s presence, she was familiar with his signature
and that was enough to support her attestation. The district judge was mistaken. The
statute imposes distinct requirements: first that the person “appear[] before” the no-
tary, and second that the notary ascertain that the signer is who he purports to be. 5
ILCS 312/6-102(c). Personal knowledge of the signer’s identity can fulfil the second re-
quirement, see §6-102(d)(1), but not the first. The notary’s work is not complete unless
the signer appears before the notary.
Rich testified that she fulfilled this obligation by visiting May in his cell so that he
could verify that the signatures on the notices of dismissal were his, and that May did
verify the signatures in her presence. A prison log book shows that Rich signed into
May’s cell block when she says she did. May denies that Rich verified his signatures this
way, and we must assume (given the general verdict) that the jury believed May. But
there remains the need to show injury. And, for the same reason that the access-to-
courts claim fails, May has not established loss from any failure to conduct a person-to-
person signature verification.
No. 08-1303 Page 3
We have considered the possibility that state law authorizes nominal damages. But
none of the act’s sections provides for them. The Illinois law, like the Uniform Law on
Notarial Acts (on which it is based), establishes a strict-liability regime. The notary must
comply with all duties; reasonable care is not enough. The statute provides compensa-
tion for actual injury. 5 ILCS 312/7–101. In Illinois, the plaintiff must show injury to re-
cover under a strict-liability approach, unless the law provides for nominal damages or
has a penalty clause (such as $100 per violation). See Mikolajczyk v. Ford Motor Co., 321 Ill.
2d 516, 525, 901 N.E.2d 329, 335 (2008); Tolve v. Ogden Chrysler Plymouth, Inc., 324 Ill.
App. 3d 485, 491–92, 755 N.E.2d 536, 541–42 (2001). Illinois has not considered whether
nominal damages are available when a notary acts improperly, but we think it likely
that the state courts will give a negative answer. This means that the judgment must be
AFFIRMED.