UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BOBBY LEE
HARRISON,
Plaintiff-Appellant,
v.
COUNTY OF
COOK, ILLINOIS, et al.,
Defendants-Appellees.
No. 09-1747
2010 U.S. App. Lexis 2703
January 21, 2010, * Submitted
January 29, 2010, Decided
NOTICE:
PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE
CITATION TO UNPUBLISHED OPINIONS.
ORDER
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.
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, 173 L.
Ed. 2d 868 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (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. [HN1] 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, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (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 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 FEC v. Salvi, 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. [HN2] 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).
* 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).