NONPRECEDENTIAL DISPOSITION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 January 21, 2010*
Decided January 29, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09‐1747
BOBBY LEE HARRISON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 C 6005
COUNTY OF COOK, ILLINOIS, et al.
Defendants‐Appellees. Matthew F. Kennelly,
Judge.
O R D E R
Bobby Lee Harrison, a pre‐trial detainee at the Cook County Department of
Corrections, alleges that county officials violated his constitutional rights to access the
courts, free speech, and association by intentionally mishandling his mail. The district court
dismissed his original complaint and an amended complaint for failure to state a claim. See
28 U.S.C. §§ 1915(e)(2)(B), 1915A. Harrison appeals, and we affirm the district court’s
judgment.
*
The defendants were not served in the district court and are not participating in this
appeal. Thus, the appeal is submitted on the appellant’s brief and the record. See FED. R.
APP. P. 34(a)(2).
No. 09‐1747 Page 2
Harrison’s complaint alleged that the defendants opened his “legal mail” outside of
his presence; refused to transmit mail that he attempted to file with the district court; and
did not allow him to seal outgoing mail. The district court dismissed the complaint, ruling
that (1) Harrison had not stated a claim for interference with his right of access to the courts
because he had not identified any adverse effect on any litigation; (2) defendants had
allegedly opened legal mail outside of Harrison’s presence only once, which did not violate
his constitutional rights; and (3) the prohibition against sealing mail could not support a
claim because security concerns permitted searches of outgoing mail. The court also
dismissed Harrison’s amended complaint, which it concluded contained “essentially the
same allegations as his original complaint.” Although the amended complaint identified
more “legal mail” that defendants had opened outside of Harrison’s presence, the court
ruled that there were still too few instances to state a constitutional claim.
In his appellate filings, Harrison provides more specifics about his grievance that the
defendants refused to deliver mail to the district court. He asserts that, beginning in
September 2007, he attempted four times to file a civil‐rights suit in the district court, and
that each time his mail was returned undelivered. Harrison asserts that the defendants
intentionally prevented those mailings from ever reaching the court. Although his fifth
attempt at mailing succeeded, launching No. 08 C 2140 six months after his first attempt, he
claims that the defendants’ interference caused the district court to dismiss it.
We have allowed a plaintiff to revive a dismissed claim by asserting on appeal
additional facts consistent with the original complaint, see Flying J Inc. v. City of New Haven,
549 F.3d 538, 542 n.1 (7th Cir. 2008); Joyce v. Morgan Stanley & Co., Inc.,
538 F.3d 797, 801‐02
(7th Cir. 2008), but we have not fully analyzed the continuing force of those cases in light of
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007),
which emphasized “the importance of prompt dismissal of unmeritorious cases even if they
are not frivolous,” Milam v. Dominick’s Finer Foods, Inc.,
588 F.3d 955, 959 (7th Cir. 2009).
Nonetheless, even if we allow Harrison to supplement his complaint with his new
assertions on appeal, those new assertions must be sufficient to state a claim for a violation
of his right of access to the courts. That right is violated only when an inmate is deprived of
access to courts and suffers actual injury as a result. See Lewis v. Casey,
518 U.S. 343, 349‐50
(1996); Ortiz v. Downey,
561 F.3d 664, 671 (7th Cir. 2009). Iqbal and Twombly further require
that Harrison’s assertions about actual injury be plausible.
The district court’s ruling in No. 08 C 2140 shows that Harrison’s claim that the
defendants interfered with that suit by blocking his mail is implausible. According to the
court in the earlier case, Harrison himself was at fault for the suit’s demise. The court
dismissed it because “[a]lthough granted three extensions of time in which to do so,
[Harrison] has failed to submit an amended complaint as directed,” asking instead for more
No. 09‐1747 Page 3
time to obtain pens and postage. Noting that Harrison’s desire for pens and postage had
not disabled him from filing multiple motions and initiating two new lawsuits, the court
found Harrison, not the prison, at fault for the delay and dismissed the suit as a result.
Harrison’s assertions on this appeal are therefore not plausible, even if considered, because
he is collaterally estopped from attacking the finding that he was at fault for the earlier
suit’s dismissal. See Fed. Election Comm’n v. Al Salvi for Senate Comm.,
205 F.3d 1015, 1020
(7th Cir. 2000).
Harrison also asserts on appeal that the defendants opened his legal mail outside of
his presence 15 times between May 2007 and March 2009 and thereby violated his right to
access the court system. To ensure adequate access to the courts, an inmate has the right to
have “legal” mail—mail designated as correspondence with an attorney, see Kaufman v.
McCaughtry,
419 F.3d 678, 685‐86 (7th Cir. 2005)—opened in his presence. Most of
Harrison’s letters are correspondence with a court and therefore do not qualify. The
opening of the remaining correspondence with attorneys is also insufficient to state a claim
because he does not allege any detriment to any legal claim. See Lewis,
518 U.S. at 351;
Antonelli v. Sheahan,
81 F.3d 1422, 1430 (7th Cir. 1996).
Nor can the opening of these 15 pieces of mail outside of Harrison’s presence
support claims for violations of his rights of free speech and free association. Although an
allegation that prison officials regularly open privileged mail from an attorney may state
such a claim, see Antonelli,
81 F.3d at 1431‐32, only one item of mail from the law offices of
Lawrence V. Jackowiak was actually marked as mail from an attorney. Its opening, by
itself, does not show a continuing practice of opening privileged mail and therefore cannot
support a free‐speech or free‐association claim. See Rowe v. Shake,
196 F.3d 778, 782 (7th Cir.
1999); Sizemore v. Williford,
829 F.2d 608, 610 (7th Cir. 1987). Nothing on the mail from the
law firms of Schiff Hardin, LLP, and Loevy & Loevy stated that they were from Harrison’s
attorney or that they were privileged, and therefore opening them outside of Harrison’s
presence did not violate his rights. See Kaufman,
419 F.3d at 685‐86. And no free‐speech or
free‐association claims arose from the opening of the other 12 pieces of mail because they
did not bear an attorney’s name and a warning that they were legal mail. See
id. Harrison’s
First Amendment rights did not preclude the defendants from examining them.
Id. at 685.
The judgment of the district court is AFFIRMED. Harrison is assessed a “strike” for
taking this appeal, see
28 U.S.C. § 1915(g); Campbell v. Clarke,
481 F.3d 967, 969 (7th Cir.
2007), and as the district court warned, he has now “struck out.” As an inmate he may not
file suit in federal court without prepayment of fees unless he is in imminent danger of
serious physical injury.
28 U.S.C. § 1915(g).
