United States District Court, N.D. Illinois, Eastern Division
August 5, 2004.
CHRISTOPHER HOLLY, Plaintiff,
MARILYN A. FILISHIO, Administrator State of Illinois Circuit Court of Cook County Official Court Reporters, as an individual, Defendant.
The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Holly, currently an inmate at the
Danville Correctional Center, brings this pro se complaint
pursuant to 42 U.S.C. § 1983, alleging that Defendant Marilyn A.
Filishio, the Administrator of Court Reporting for the Circuit
Court, denied him his First Amendment right of access to the
courts by failing to furnish him with certain
transcripts.*fn1 Defendant has filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6). For the reasons stated in this opinion, the motion is
I. Standard of Review
The purpose of a motion to dismiss is to test the sufficiency
of the complaint, not to decide the merits. Gibson v. City of
Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Federal notice
pleading requires only that the plaintiff "set out in her
complaint a short and plain statement of the claim that will
provide the defendant with fair notice of the claim." Scott v.
City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999). When ruling
on a motion to dismiss, the court assumes that well-pleaded
allegations are true and draws all reasonable inferences in the
light most favorable to the plaintiff. Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir.
1999). This rule has particular force when considering the
allegations of a pro se complaint, which are held "to less
stringent standards than formal pleadings drafted by lawyers."
Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, pro
se complaints are to be liberally construed. Wilson v. Civil
Town of Clayton, 839 F.2d 375, 378 (7th Cir. 1988).
In addition, the court will also consider the allegations
contained in all documents Plaintiff files with the court. See
Gutierrez v. Peters, 111 F.3d 1364, 1367 n. 2 (7th Cir. 1997);
Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992).
Documents attached to a pleading are considered to be part of the
pleadings if they are referred to in the Plaintiff's complaint
and are central to his claim. See Venture Assoc. Corp. v. Zenith
Data Sys. Corp., 987 F.2d 429, 431-32 (7th Cir. 1993); see also
Wright v. Associated Ins. Companies, Inc., 29 F.3d 1244, 1248
(7th Cir. 1994). Further, the court may take judicial notice of
matters of public record without converting a 12(b)(6) motion
into a motion for summary judgment. Anderson v. Simon,
217 F.3d 472, 474-75 (7th Cir. 2000); Henson v. CSC Credit Services,
29 F.3d 280, 284 (7th Cir. 1994) (citing United States v. Wood,
925 F.2d 1580, 1582 (7th Cir. 1991)).
Plaintiff alleges that on or about October 1, 2002, he wrote to
Defendant requesting the transcripts of various court proceedings
for use in preparing his petition for post-conviction relief.
Defendant refused his request in a letter stating, "this is the
last correspondence that you will be receiving from myself or my
office." Plaintiff claims that the court transcripts are vital to
preparing his post-conviction petition and that Defendant acted
with deliberate indifference to his legal needs. As a result of
Defendant's actions, Plaintiff alleges, the preparation of his
post-conviction petition was "fully halted." III. Analysis
Prisoners have a constitutional right to meaningful access to
the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). In order
to state a claim for denial of that right, however, a prisoner
must demonstrate that the deprivation he suffered hindered his
efforts to pursue a nonfrivolous legal claim and resulted in
actual injury. As the Supreme Court explained in Lewis v.
Casey, 518 U.S. 343, 349-53 (1996), and reiterated in
Christopher v. Harbury, 536 U.S. 403, 415 (2002), a prisoner
claiming that he was denied access to the courts must prove that
he suffered an actual injury by showing that unjustified acts or
conditions hindered his ability to pursue a nonfrivolous legal
claim. To avoid dismissal at the complaint stage under Rule
12(b)(6), the plaintiff "must make specific allegations as to the
prejudice suffered because of the defendant's alleged conduct."
Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003).
Allegations sufficient to plead specific prejudice might include
missed court deadlines, failure to make timely filings, or
dismissal of legitimate claims. Id. at 656.
In the instant case, Plaintiff alleges that he requested his
trial transcripts on or about October 1, 2002. The court notes,
however, that the letter from which Plaintiff excerpted the
statements quoted above is dated June 20, 2002, suggesting he
made at least one request prior to that date. In fact, a review
of the letter in its entirety demonstrates that Plaintiff was
less than forthright when he made the allegations in his
The letter reads in its entirety:
June 20, 2002
Mr. Christopher Holly
3820 E. Main St.
Danville, ll. 61834
We have received your letter and I would like to
inform you that this is the last correspondence that
you will be receiving from myself or my office. It is
not office policy for reporters to have an ongoing
writing communication with people who are
incarcerated, and the ordering of transcripts will be
an ongoing process. Please have your lawyer or your family or friends
contact our office with the necessary information to
get the transcripts you want. Our office will be more
than happy to process the order.
You can inform them that they can call in the order
at 773-869-6065 or come to 2650 S. California, fourth
floor, to order the transcript. Please have them come
with the necessary information, such as the date that
you wish transcribed, Judge's name, Defendant's name
and case number. We need all that information before
we can process your order.
In your letter you stated you needed an estimate of
cost for the numerous dates. Please inform your
outside contact that they will need anywhere from
$800 to $1,000 to order the dates that you requested
in your letter.
I will keep your letter on file.
Official Court Reporter's Office
Contrary to Plaintiff's allegations, this letter does not
demonstrate that Defendant was deliberately indifferent to his
legal needs. To the contrary, although Defendant declined to do
business with him directly, the Official Court Reporter's Office
gave Plaintiff full information on how he could obtain his
transcripts and gave him an estimate of their costs.
In any event, as Defendant explains, the record of Plaintiff's
petition for post-conviction relief demonstrates that Plaintiff
did not suffer any actual detriment because of Defendant's
alleged refusal to correspond with Plaintiff as to his
transcripts: Plaintiff's own exhibits show that he filed a Motion
for Trial Transcripts and Common Law Records on February 28,
2003, seeking a transcript of the sentencing date in May 2002, on
which he pleaded guilty, and numerous transcripts of proceedings
involving his co-defendant. (Plaintiff's Response, Ex. A.) On
March 31, 2003, the Circuit Court granted Plaintiff's motion for
a free copy of the transcript of his May 22, 2002 plea of guilty;
Plaintiff's request for other transcripts, in particular, those
of his co-defendant, was denied. (Plaintiff's Response, Ex. B;
Defendant's Reply, Ex. D.) The court notes that Plaintiff filed
his complaint in this case on July 21, 2003, several months after
the Circuit Court granted his motion to receive free transcripts.
Some months later, on November 25, 2003, Plaintiff filed his
petition for post-conviction relief. (Defendant's Motion to
Dismiss, Ex. A.) On December 15, 2003, the trial court denied the petition. (ld. Ex. B.) In short,
Defendant's alleged refusal to correspond with Plaintiff did not
halt or prejudice the filing of Plaintiff's petition for
Defendant's refusal to have an ongoing correspondence with
Plaintiff regarding his trial transcripts did not violate his
First Amendment right of access to the courts. Defendant Marilyn
A. Filishio's motion to dismiss (Doc. 13-1) is granted. This
action is dismissed with prejudice in its entirety.
If Plaintiff wishes to appeal this dismissal, he may file a
notice of appeal with this court within 30 days of the entry of
judgment. FED.R.APP.P. 4(a)(4) If he does so, he will be liable
for the $255 appellate filing fee. Unless he is granted leave to
proceed in forma pauperis, he will have to pay the fee
immediately. If he cannot do so, the appeal will be dismissed,
but he will remain liable for the fee and it will be deducted
from his inmate trust fund account in installments. Evans v.
Illinois Dept. of Corrections, 150 F.3d 810, 812 (7th Cir.
1998). If this court finds that appeal is not taken in good
faith, and the Court of Appeals agrees, he will not be permitted
to proceed in forma pauperis and pay the fee in installments,
but will have to pay the fee immediately or the appeal will be
dismissed. 28 U.S.C. § 1915(a)(3). To avoid a finding that the
appeal is not taken in good faith, a motion to proceed in forma
pauperis on appeal should explain the grounds for the appeal.
See Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999);