United States District Court, W.D. Wisconsin
DANTE R. VOSS, Plaintiff,
KEVIN A. CARR, Secretary of the Wisconsin Department of Corrections, Defendant.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
plaintiff and prisoner Dante Voss has filed a complaint in
which he challenges the constitutionality of DAI Policy
#309.15.01, which, according to Voss, governs the materials
that are available in Wisconsin prison law libraries. Voss
says that the policy is preventing him from obtaining
publications he needs to challenge his conviction, in
violation of his right to access the courts. He is suing
Kevin Carr, Secretary of the Wisconsin Department of
Corrections, for monetary and injunctive relief.
case is before the court for screening under 28 U.S.C. §
1915(e)(2) and § 1915A. Because I conclude that the
complaint fails to state a claim upon which relief may be
granted, I will dismiss the case.
includes only one “claim for relief” in his
complaint, but that claim has two parts. First, he says that
DAI Policy #309.15.01 bans the DSM-5, which is the
fifth and latest edition of the Diagnostic and Statistical
Manual of Mental Disorders, “one of the basic texts
used by psychiatrists and other experts.” Hall v.
Florida, 572 U.S. 701, 704 (2014). Second, he says that
the policy doesn't require libraries to carry
“a current Physician's Desk Reference, current
literature and assessment tools on psychopathy, and
literature and treatises on the toxicology of Wellbutrin and
its effects on the CYP2D6 enzyme.” Dkt. 5, ¶ 25.
He also alleges that “Defendant” has refused to
provide these materials upon request. Id., ¶
says that he needs these publications for a motion for
postconviction relief that he wishes to file in state court
on a conviction for unspecified crimes. Although Voss
doesn't clearly explain how he intends to use the
publications, I understand his reasoning to go something like
this: (1) when sentencing Voss, the state court relied on
Voss's psychopathy diagnosis from 2003; (2) a prison
psychiatrist told Voss that taking Wellbutrin, Vicodin, and
Klonopin could lead to “involuntary intoxication”
and that a 2003 psychopathy diagnosis might be outdated
because diagnostic criteria have changed since then; (3) Voss
was taking all of the above medications when he committed his
crimes; (4) the publications he is requesting may show that
his psychopathy diagnosis is outdated and that the
medications he was taking affected his ability to control his
conduct at the time he committed his crimes; (5) if he could
show these things, it would mean that he was denied his
constitutional right to be sentenced based on accurate
information; and (6) without the publications, he can't
allege the facts he needs to obtain an evidentiary hearing on
his postconviction motion.
succeed on an access-to-courts claim, a plaintiff must show
that he was, or is, suffering an “actual injury”
by being “frustrated” or “impeded” in
bringing a non-frivolous claim about his criminal conviction,
sentence, or conditions of confinement. Lewis v.
Casey, 518 U.S. 343, 353-55 (1996). In this case,
Voss's allegations implicate two kinds of
access-to-courts claims. His allegation that officials are
refusing to provide certain publications implicates
the right to receive assistance in bringing claims. See
Bounds v. Smith, 430 U.S. 817, 828 (1977) (“[T]he
fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.”). His
allegation that officials are banning the DSM-5
implicates the right to be free from interference with court
access. See Procunier v. Martinez, 416 U.S. 396, 419
(1974) (“Regulations and practices that unjustifiably
obstruct the availability of professional representation or
other aspects of the right of access to the courts are
invalid.”). However, Voss doesn't say that he wants
to purchase the DSM-5 himself, so I will construe Voss's
complaint as raising one claim that Carr is violating his
rights by refusing to provide the requested
are multiple problems with Voss's claim. First, it is not
clear whether Voss has suffered an actual injury. Voss
doesn't allege that the state court has denied his
postconviction motion or his request for an evidentiary
hearing. In fact, Voss doesn't allege that he has even
filed a motion in the state court or that he has
asked the state court for assistance in filing his motion. It
is true that plaintiff may bring an access-to-courts claim if
“official action is presently denying an opportunity to
litigate.” Christopher v. Harbury, 536 U.S.
403, 412 413 (2002). But no one is preventing Voss from
seeking relief with the state court. Although Voss says that
he needs the requested publications to obtain an evidentiary
hearing, he doesn't explain why that is so and he
doesn't explain why he hasn't sought relief from the
state court. Until he does, I cannot say that any conduct by
prison officials has denied Voss an opportunity to litigate.
See Johnson v. Barczak, 338 F.3d 771, 772 (7th Cir.
2003) (no actual injury when plaintiff obtained relief from
“the right of access to the federal courts is not
absolute; rather, an individual is only entitled to
meaningful access to the courts.” In re
Chapman, 328 F.3d 903, 905 (7th Cir. 2003). In providing
that meaningful access, state officials may provide law
libraries that allow the prisoner to help himself or
they may appoint someone who is “trained in the
law” to assist the prisoner. Brooks v.
Buscher, 62 F.3d 176, 179 (7th Cir. 1995). In this case,
Voss was provided counsel by the state. See State v.
Dillon, 2012 WI.App. 118, ¶¶ 28-29, 344 Wis.2d
519, 822 N.W.2d 736 (nonprecedential opinion) (“In
Wisconsin, an indigent defendant is afforded postconviction
counsel through the Office of the State Public
Defender.”). “The right of access is satisfied
if, in lieu of a law library, adequate assistance of counsel
is provided.” Johnson by Johnson v. Brelje,
701 F.2d 1201, 1208 (7th Cir. 1983).
says that his counsel withdrew from the case, but he also
says that the state court “allowed” him to
proceed pro se, which suggests that he waived his right to
counsel. See State v. Thornton, 2002 WI.App. 294,
¶ 14, 259 Wis.2d 157, 169, 656 N.W.2d 45, 51 (before
allowing postconviction counsel to withdraw, the court must
determine whether defendant is waiving his right to counsel).
By declining the assistance of counsel, Voss forfeited his
right to raise an access-to-courts claim. See United
States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000)
(“When a person is offered appointed counsel but
chooses instead to represent himself, he does not have a
right to access to a law library.”).
I cannot tell from the allegations in Voss's complaint
whether the underlying claim Voss wants to bring in state
court isn't frivolous. See Christopher, 536 U.S.
at 416 (“[T]he predicate claim [must] be described well
enough to apply the ‘nonfrivolous' test and to show
that the ‘arguable' nature of the underlying claim
is more than hope.”). Voss's underlying claim is
that he was denied the right to be sentenced on accurate
information. But a criminal defendant in Wisconsin forfeits a
challenge to his sentence based on inaccurate information if
he does not object at the time that the alleged inaccurate
information is presented. See State v. Benson, 2012
WI.App. 101, ¶ 17, 344 Wis.2d 126, 136, 822 N.W.2d 484,
488. Voss doesn't explain why his claim isn't
inaccurate information implicates the Due Process Clause only
when the sentencing court relies on it to impose a harsher
sentence. See United States v. Huwaldt, 989 F.2d 502
(7th Cir. 1993). Voss doesn't explain how the medications
he was taking could undermine the sentencing court's
reasoning. He does say that his sentence was “based, in
part, on a diagnosis of psychopathy, ” Dkt. 5, ¶
9, but he doesn't identify what the court said about that
diagnosis or otherwise explain how the diagnosis affected his
also doesn't explain how the publications he's
seeking would make any difference to his claim. For example,
even if Voss is correct that the criteria for diagnosing
psychopathy has changed since 2003, the DSM-5 wouldn't
permit a lay person such as Voss to diagnose himself under
the new criteria. In short, Voss hasn't shown that he has
“more than hope” to support his claim. See
Christopher, 536 U.S. at 416. That's not enough.
courts generally have concluded that prison libraries are
adequate so long as they have sufficient legal
resources in them, such as statutes and case law.
See, e.g., Lindquist v. Idaho State Bd.
of Corr., 776 F.2d 851, 856 & n.1 (9th Cir. 1985)
(library including state and federal case law, federal rules,
and civil procedure treatises was adequate); Wattson v.
Olsen, 660 F.2d 358, 359 n.2 (8th Cir. 1981) (library
that included statutes, case law, a legal dictionary, and ...