case informed him that the clerk reported that there were no motions pending for Stone-El, and that the clerk had not received anything from him since early 1993. His subsequent efforts to obtain habeas relief, both directly from the Illinois Supreme Court and pursuant to 28 U.S.C. § 2254, have been unsuccessful. He therefore filed the present action, asserting that the actions complained of violated the First, Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution, as well as the corresponding provisions of the Illinois Constitution.
II. Motion to Dismiss Standard
A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).
According to Stone-El, the above facts support essentially two constitutional claims: denial of access to the courts, and unlawful seizure of personal property. We disagree. With respect to Stone-El's access claim, it is axiomatic that a prisoner must suffer a significant detriment as a result of the objectionable action. Hossman v. Spradlin, 812 F.2d 1019, 1022 (7th Cir. 1987). Stone-El has failed to satisfy this requirement. Although he alleges that he was unable to file his habeas petition on December 8, he does not claim that he was, or is, unable to make that filing in some other manner. Indeed, he can not make such a claim, since he readily acknowledges that he subsequently mailed a copy of his habeas petition directly to the court. The Constitution requires no more than that; the ability of a prisoner to file legal documents by mail satisfies the constitutional requirement that citizens have access to the courts. See Bounds v. Smith, 430 U.S. 817, 824-25, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). And although Stone-El maintains that the clerk of the Cook County Circuit Court does not have a record of his mailed filing, he does not suggest that this is due to any malfeasance on the part of Cook County Jail officials or correctional officers. Furthermore, he has not alleged that the time for filing a habeas petition has expired, or that he has suffered some other adverse effect in his effort to get post-conviction relief. See, e.g., Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992) (allegation that court case was dismissed due to confiscation of legal documents sufficient to survive motion to dismiss). We therefore conclude that Stone-El has failed to state a claim for deprivation of access to the courts.
The same is true of Stone-El's unlawful seizure claim. We initially observe that such a claim is properly brought under the Fifth and Fourteenth Amendments, rather than the Fourth Amendment. See Hudson v. Palmer, 468 U.S. 517, 540, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) (O'Connor, J., concurring) ("The constitutional sources that provide [prisoners'] property with protection . . . [are] the Fifth and Fourteenth Amendments, not the Search and Seizure Clause of the Fourth Amendment."). However, even under the due process protection of those amendments, Stone-El's claim must fail. For Fairman to be liable in his official capacity, Stone-El must allege the existence of an official policy which resulted in the deprivation alleged. Monell v. Dep't of Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The only "policy" alleged in Stone-El's complaint is "a rule barring pro se litigants from taking written motions to court," and instead requiring them to file by mail.
In support, he alleges that all prisoners who went to court on December 8, 1992 were not allowed to take materials from the jail with them. His due process claim, however, is only properly directed at the fact that the materials were not returned.
Notably, however, he does not allege that the policy stated above extended to the refusal to return the materials. On the contrary, he states in his complaint that "each correctional officer makes his own rules and regulation each time the shift changes . . . ." But even if Stone-El generally alleged the existence of a "refusal to return" policy, his claim would fail. It is axiomatic that "to establish a municipal policy or custom, the plaintiff must allege a specific pattern or series of incidents that support the general allegation of a custom or policy; alleging one specific incident in which the plaintiff suffered a deprivation will not suffice." Henry v. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986) (citations omitted). Stone-El has not alleged any other occasions on which any items were destroyed or otherwise not returned to him, nor does he allege that any of the other prisoners who left the jail to go to court on December 8, 1992 were unable to get their materials back. Because Stone-El has failed to allege a custom or policy with respect to the refusal to return his petition and book, he is unable to state a claim against Fairman in his official capacity.
Stone-El does have redress for the loss of his materials; he may file an action against the individual officers who confiscated and refused to return them. See Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993) (prisoners may file tort claims in the Illinois Court of Claims for destruction of property by correctional officers). Absent some connection to Fairman, or an official policy or custom, however, his suit under 42 U.S.C. § 1983 must fail.
For the reasons set forth above, defendant's motion to dismiss is granted. It is so ordered.
MARVIN E. ASPEN
United States District Judge