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Voss v. Carr

United States District Court, W.D. Wisconsin

November 7, 2019

DANTE R. VOSS, Plaintiff,
v.
KEVIN A. CARR, Defendant.

          OPINION AND ORDER

          James D. Peterson District Judge.

         Pro se plaintiff and prisoner Dante Voss has filed a complaint in which he challenges the constitutionality of DAI Policy #309.51.01, which, according to Voss, governs the availability of “legal loans, ” which are funds for a prisoner's use in litigation. The case is before the court for screening under 28 U.S.C. § 1915(e)(2) and § 1915A. I conclude that Voss hasn't stated a claim upon which relief may be granted, but I will give him leave to file an amended complaint that provides additional information to support his claim that defendant Kevin Carr (the secretary of the Wisconsin Department of Corrections) has violated his right to have access to the courts.

         ANALYSIS

         A. Overview of the claims

         Most of the allegations in the complaint relate to Voss's claim that DAI Policy #309.51.01 prevented him from filing a timely notice of claim for several state-law claims he wishes to file against prison staff, who are state employees. Specifically, Voss alleges that he needed a legal loan in September 2018 to serve a notice of claim by certified mail, as required by Wis.Stat. § 893.82, but his request for a legal loan was denied because he had already reached his $50 limit for the year. So Voss sent his notice by First-Class Mail instead, which Voss says isn't sufficient under § 893.82(5). Voss says that he received a legal loan in January 2019, but by then his deadline for filing a notice of claim had passed, so it was too late to mail the notice again.

         At the end of his complaint, Voss raises two other claims. First, he says that he has “already exhausted” his legal loan limit for 2019 and that “Defendant has refused to provide Plaintiff with further assistance to access the courts for civil matters.” Dkt. 1, ¶¶ 32-33. Second, Voss he alleges that DAI Policy #309.51.01 is discriminatory because it reduces a prisoner's legal loan limit from $100 to $50 if the prisoner hasn't repaid legal loans from previous years. Id., ¶ 41.

         From these allegations, I understand Voss to be asserting three claims: (1) the refusal to give him funds for serving his notice of claim by certified mail violated his constitutional right to access the courts; (2) the refusal to give him additional funds for current litigation violates his right to access the courts; and (3) reducing his legal loan from $100 to $50 for his failure to repay legal loans from previous years violates his right to equal protection of the laws.

         B. Access to courts

         To 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). I will consider whether Voss has adequately alleged these elements as to his claims related to his alleged failure to comply with the notice of claim statute and his alleged inability to maintain current litigation.

         1. Notice of claim

         As discussed below, this claim raises multiple legal questions that are not resolved in this circuit. For the purpose of screening, I will assume that all of these questions should be resolved in Voss's favor. But I cannot allow Voss to proceed on this claim because he hasn't adequately alleged that he was barred from bringing a nonfrivolous claim.

         a. Personal involvement

         An individual can't be sued for damages under the Constitution unless he was “personally involved” in the violation. Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). The general rule is that an individual isn't personally involved unless he participated in the constitutional violation or knew about the particular conduct at issue and had the ability to stop it. Id.

         In this case, Voss doesn't allege that defendant Carr personally denied a request for a legal loan. But a supervisory official may also be personally involved by “formulating and directing an unconstitutional policy.” Del Raine v. Williford, 32 F.3d 1024, 1052 (7th Cir. 1994). Because Carr is the secretary of the Wisconsin Department of Corrections, it is ...


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