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ROBERT C. BEESE, et al., Plaintiffs-Appellants, v. JENNIFER TODD, et al., Defendants-Appellees.
No. 01-3951
UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
35 Fed. Appx. 241
March 20, 2002 *, Submitted
* After an examination of the briefs and the record, we have concluded that
oralargument is unnecessary. Thus, the appeal is submitted on the briefs and
therecord. See Fed. R. App. P. 34(a)(2).
March 21, 2002, Decided
NOTICE:
RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
ORDER
State prisoners Robert Beese,
Jonathan Pearson, and Karl Amenson appeal from orders dismissing their claims
that conspiring guards at Wisconsin's Oshkosh Correctional Institute
unconstitutionally interfered with their access to the courts. We affirm in
part, and vacate and remand in part.
The plaintiffs contend, and we
take as true in reviewing a dismissal for failure to state a claim, Jacobs v.
City of Chicago, 215 F.3d 758, 763 n.1
(7th Cir. 2000), that prison guard Jennifer Todd seized from Beese's
cell and read legal papers including complaints, transcripts, petitions, and
affidavits. The papers related to the plaintiffs' various active cases, which
Beese, a "jailhouse lawyer," was helping the others pursue. Todd
acted pursuant [*243]to orders from other guards and prison staff, and her
actions were a deliberate attempt to stymie the plaintiffs' access to the
courts. After more than a month of demands, prison staff returned some
of the papers to the plaintiffs, but other documents including affidavits
belonging to Beese have never been returned. The defendants initially tried to
justify their actions by claiming reliance on a new prison regulation that
requires inmates to use the U.S. mail system to send any legal materials to
other prisoners within the same facility, but at the time of the seizure this
regulation did not appear in the prison's published code, nor was it posted.
Employing 42 U.S.C. §§ 1983 and 1985(3), the plaintiffs sued the guards
and staff allegedly involved in the papers' seizure. The district court dismissed the case in two
orders. First, relying on Fed. R. Civ. P. 12(b)(6), the court held that the
prison guards and staff, as employees of the same agency, were shielded from
the plaintiffs' conspiracy claim by the intracorporate conspiracy doctrine. It also concluded that plaintiffs
Beese and Amenson had not stated a claim for denial of access to the courts
because they had not alleged the "actual injury" required by Lewis v.
Casey, 518 U.S. 343, 351, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996), but that Pearson had alleged an
actual injury caused by the seizure of his court papers: he lost two federal
habeas corpus actions. But in a subsequent order pursuant to Fed. R. Civ. P. 12(c), the
district court determined that Pearson's allegation of lost habeas corpus cases
implicates Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364
(1994). Heck holds that a § 1983 action for money damages that would call into
question a criminal conviction cannot be brought until the conviction has been
invalidated. Id. at 489. If Pearson
were to win his § 1983 action, reasoned the district court, his still-valid
underlying conviction would be called into question: the injury alleged is the
failure to obtain habeas corpus relief, which is no injury at all unless the
underlying conviction is in fact invalid. See Hoard v. Reddy, 175 F.3d 531, 532-33 (7th Cir. 1999); Nance v.
Vieregge, 147 F.3d 589, 591-92 (7th Cir. 1998). The district court posited that
there is an exception to Heck where a § 1983 action is the only possible route
to attack a conviction, see Spencer v.
Kemna, 523 U.S. 1, 140 L. Ed. 2d 43, 118 S. Ct. 978 (1998); Hoard, 175 F.3d at
532, but relying on Nance it went on to rule that Heck continued to bar
Pearson's claim because he could still seek a pardon that would invalidate his
conviction. See Nance, 147 F.3d at
591. As to Pearson, therefore, the court dismissed without prejudice until he
could allege that he had sought and been denied a pardon. The three plaintiffs
appeal.
The district court correctly
dismissed the plaintiffs' § 1985 conspiracy claim under the intracorporate
conspiracy doctrine. Under that doctrine a "conspiracy cannot exist solely
between members of the same entity." Payton v. Rush-Presbyterean-St.
Luke's Med. Ctr., 184 F.3d 623, 632 (7th Cir. 1999). The plaintiffs alleged
that the defendants are all members of the same entity, the Wisconsin
Department of Corrections, and that they were all working in the Department's
interest. The defendants therefore cannot not be sued under § 1985 for
conspiracy. See id. See also Wright
v. Illinois Dept. of Children and Family Servs., 40 F.3d 1492, 1508 (7th Cir.
1994).
We also think the district court
correctly dismissed Beese's and Amenson's
access-to-the-courts claims because neither alleges that the seizure of
their legal papers caused some actual injury, such as the dismissal of a
complaint or an inability [*244] to file a complaint at all. See Lewis, 518 U.S. at 351. Amenson did contend that one of
his cases suffered delays when his papers were seized, but mere delay without
more does not establish actual injury. See
Gentry v. Duckworth, 65 F.3d 555, 559 (7th Cir. 1995). Beese makes only
conclusory allegations of prejudice insufficient to satisfy the actual injury
requirement. Moreover, his nascent suggestion, not addressed by the district
court but evident in the complaint and his brief, that the guards violated his
"right" to provide legal assistance to other inmates lacks a basis in
law. See Shaw v. Murphy, 532 U.S. 223,
230-32, 149 L. Ed. 2d 420, 121 S. Ct. 1475 (2001) (holding that inmates do not
have right to provide legal assistance to other inmates).
Pearson's case presents more
difficulty. No one-- not the plaintiffs and not the defendants who raised the
Heck defense-- has ever identified a particular court action brought by Pearson
that was impeded by the seizure of papers from Beese's cell. The district court
read the complaint as alleging that Pearson lost two federal habeas corpus
actions because of the defendants' conduct, but the record reveals confusion,
even on the part of the plaintiffs, as to the nature and number of Pearson's
dismissed actions. At points Pearson alleges three "Actions" were
dismissed; at others he claims two. Sometimes the actions are both
"post-conviction" and "habeas corpus in nature;" other
times they are only "habeas corpus." As far as the record reveals,
Pearson never said that the cases were federal actions; maybe they involved
state habeas corpus. See Wis. Stat. § 782.01. Nor did anyone ever describe the underlying bases
for Pearson's lawsuits; the defendants and the district court assume that they
necessarily related to Pearson's conviction, but perhaps the actions challenged
something other than the fact or duration of Pearson's confinement such that
awarding damages for their disruption would not call into question his
underlying conviction. Indeed, in their brief the plaintiffs argue that
Pearson's "writs did not pertain to his conviction, per se." Without
answers to these questions, we cannot endorse the district court's application
of the Heck rule-- the defendants must after all prove that the Heck defense
applies. See Carr v. O'Leary, 167 F.3d 1124, 1126 (7th Cir. 1999); Okoro
v. Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999).
The defendants urge that we can affirm on the alternate ground that Pearson failed to exhaust his available administrative remedies. But they do not present any arguments that the district court did not consider and reject, and we think that Pearson's inmate complaints sufficiently notified the defendants of his grievance. That he labeled his administrative complaints attacks on a policy rather than on the guards' actions seems to us inconsequential for exhaustion purposes. As in his § 1983 action, he complained during administrative review that the defendants denied him access to the courts when they effectuated an unposted policy regarding prisoners' possession of legal materials. We agree with the district court: Pearson's administrative complaints were enough to put the defendants on notice and provided the prison system adequate opportunity to resolve the issues.
Accordingly, we VACATE the dismissal of Pearson's claim that he was
denied access to the courts, and REMAND for further proceedings solely as to
that claim. In all other respects the judgment of the district court is
AFFIRMED.