Dante Voss v. Kevin Carr ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2022 *
Decided June 24, 2022
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-2015
DANTE R. VOSS, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 19-cv-790-jdp
KEVIN A. CARR, James D. Peterson,
Defendant-Appellee. Judge.
ORDER
Dante Voss is a Wisconsin prisoner who relies on litigation loans from the
Department of Corrections to subsidize his various lawsuits. A Wisconsin law
authorized him to receive up to $100 per year, but a (now-repealed) Department policy
set a $50 yearly cap for prisoners like Voss who had not repaid loans from prior years.
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-2015 Page 2
He sued the Department under 42 U.S.C. § 1983, arguing that the limit, and other prison
policies, violated his constitutional rights of meaningful access to the courts and equal
protection (because the policy allots him less yearly funding than other prisoners). The
district judge screened Voss’s amended complaint and dismissed it for failure to state a
claim. See 28 U.S.C. § 1915A. Voss appeals, but his allegations do not state a claim, so we
affirm.
We accept the well-pleaded allegations in Voss’s amended complaint as true and
draw reasonable inferences in his favor. See Smith v. Dart, 803 F.3d 304, 308–09 (7th Cir.
2015). Voss relies on litigation loans to afford the costs of copying, printing, and mailing
litigation materials. But he was not advanced the full $100 allowed by statute, WIS. STAT.
§ 301.328(1m), until he repaid all prior loans, see DAI Policy # 309.51.01(III)(D) (effective
Jan. 1, 2013). Despite the policy’s 14 exceptions, see id., Voss asserted that the limitation
inhibited his meaningful access to the courts.
Voss also alleged that the prison unreasonably curtailed his time—previously
“unlimited”—in the prison law library. See DAI Policy # 309.15.01. He did not say how
much time he received or how much time he required—though he now says four-hour
blocks of time were needed—but he alleged generally that he did not have sufficient
time to do legal research for his eight pending cases and consequently was assessed a
“strike” for bringing this lawsuit. 28 U.S.C. § 1915(g).
On one occasion, prison staff opened some of Voss’s legal mail and mail that
contained his daughter’s medical records outside his presence. When he tried to
identify the staff members using Wisconsin’s open-records law, see WIS. STAT. § 19.35,
prison officials denied his request based on an exception that prevents prisoners from
obtaining the personally identifying information of corrections officials, see id.
§ 19.35(1)(am)(2)(c). This prevented him from timely serving the Wisconsin Attorney
General with notice of a tort claim against the officers who opened the mail, see id.
§ 893.82(3), and therefore the state courts dismissed his tort suits against them.
Finally, Voss complained that the legal loan policy and the requirement to serve
a notice of claim by certified mail, see WIS. STAT. § 893.82(5), violate the Equal Protection
Clause of the Fourteenth Amendment as applied to him because he could not afford
certified mail without a larger loan. He also argued that the prisoner exception to
Wisconsin’s public records law unlawfully discriminates against prisoners.
In a detailed order, the judge screened and dismissed Voss’s complaint. Voss’s
First Amendment challenge to the loan policy failed because he had no constitutional
No. 20-2015 Page 3
entitlement to a subsidy for elective civil suits, so receiving less than the yearly
maximum was not a constitutional injury. And Voss did not explain why $50 was
insufficient to pursue his most important lawsuits. Voss’s challenge to the notice-of-tort-
claim statute failed because he obtained the officers’ names by other means, and his
inability to afford certified mail meant that he could not have sued anyway. As for the
library policy, Voss did not say how much time he received or needed, he was not
entitled to infinite library time, and he did not identify any injury.
The judge ruled that Voss’s equal-protection challenges failed as well. The
certified-mail requirement, at most, disparately impacts the poor, which does not
violate the Equal Protection Clause. And the legal loan policy favors indigent prisoners,
the only class eligible. Finally, the prisoner exception to Wisconsin’s open-records law
does not violate equal protection because Wisconsin had a rational basis to believe that
prisoners are more likely to abuse that law. Voss moved for reconsideration under
Rule 60(b) of the Federal Rules of Civil Procedure, but the judge denied the motion.
Voss appeals the dismissal, and we begin by noting that our jurisdiction is
secure. Voss’s notice of appeal was posted on the district court’s docket on June 15,
2020, two months after the 30-day deadline of April 13, 2020. See FED. R. CIV. P.
6(a)(1)(C). But Voss submitted a declaration that he gave the notice of appeal to prison
officials for mailing on April 13, 2020 (the same date of his Rule 60(b) motion, which
arrived promptly). Although the Department doubts that the document took two
months to arrive, it concedes that Voss’s notice of appeal is timely under the prison
mailbox rule. See Houston v. Lack, 487 U.S. 266, 270 (1988); FED. R. APP. P. 4(c). We agree
that the timeline is odd, but there is no evidence that refutes Voss’s sworn statement
that he timely delivered his notice of appeal to prison authorities for mailing.
We turn to our de novo review of the dismissal, beginning with Voss’s argument
that he stated a claim that the legal loan policy—specifically the $50 cap—deprives him
of meaningful access to the courts. Lewis v. Casey, 518 U.S. 343, 354–55 (1996). To state a
claim, he had to allege that the policy impeded his access and that he was injured by
being shut out of court. In re Maxy, 674 F.3d 658, 661 (7th Cir. 2012).
Voss fell short of pleading a First Amendment violation. No prisoner has a
“constitutional entitlement to subsidy.” Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir.
2002). It follows that, whatever funding Wisconsin chooses to make available, Voss does
not have a right to unlimited funds to prosecute as many civil suits as he wishes despite
a lack of means. See Johnson v. Foster, 786 F.3d 501, 506–07 (7th Cir. 2015). His narrower
argument that he seeks only the $100 permitted by statute does not advance his cause.
No. 20-2015 Page 4
Neither the Constitution nor any precedent sets a dollar amount for “meaningful
access.” Voss has not given us any reason to believe that the $100 statutory cap, or the
Department’s conditional cap of $50, interfered with any non-frivolous legal claims.
Indeed, as the district judge pointed out, Voss never explains why $50 per year is
insufficient to cover the loan-eligible costs of his most important lawsuits. Like any
other litigant, he “must decide which of his legal actions is important enough to fund.”
Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003).
Because Voss did not show that loan policy deprived him of “meaningful
access,” we need not wade through the many lawsuits he brought or contemplated
bringing for evidence that he was prejudiced. See Devbrow v. Gallegos, 735 F.3d 584, 587
(7th Cir. 2013). Nor do we need to decide if Wisconsin has any obligation to provide
Voss with resources to bring state tort suits, rather than to challenge his conviction,
sentence, or conditions of confinement. See Lewis, 518 U.S. at 355.
Voss also argues that the loan policy violates the Equal Protection Clause of the
Fourteenth Amendment. He says that, as a “class of one,” he receives less litigation
funding—just $50 in loans—than other prisoners, who receive up to $100, without a
rational basis. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008). His argument
rests on the faulty premise that the statute provides for $100 without restriction. But
even debtless prisoners are not guaranteed $100 in annual litigation loans: “No prisoner
may receive more than $100 annually in litigation loans.” WIS. STAT. § 301.328(1m)
(emphasis added). Further, the policy lowering the available funding to prisoners who
have not paid back earlier loans is generally applicable and there is no allegation of
selective enforcement. So, his discrimination claim is a non-starter. See Engquist, 553 U.S.
at 601; Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Voss next reprises the argument that an alleged restriction on his library time
unconstitutionally hindered his access to the courts; he contends that, with four-hour
periods in the library, he would have discovered additional arguments in his many
state lawsuits. His complaint makes clear that he considers the (still-unspecified) time
he received was unreasonable “in relation to the number of open cases” he was
pursuing. But ensuring that prisoners have meaningful access to the courts does not
require prison officials to allocate library time based on the number of cases a prisoner
files. See Lewis, 518 U.S. at 351. Only policies that end up inhibiting non-frivolous claims
can violate the First Amendment. Id. at 353. Even if Voss did not have enough time to
perform legal research for each of his eight cases at once, that is a “perfectly
constitutional” consequence of his imprisonment. See id. at 355.
No. 20-2015 Page 5
Voss’s equal-protection challenge to the prisoner exception to Wisconsin’s open-
records law, see WIS. STAT. §§ 19.32(1c), .35(1), also fails. Voss does not explain what
equal-protection interest he believes is at stake, and none is apparent because prisoners
are not a suspect class. See United States v. Hook, 471 F.3d 766, 774 (7th Cir. 2006).
Instead, he argues that preventing him from discovering the names of staff members
who allegedly opened his legal mail outside his presence is “fundamentally unfair”
because it precludes him from meeting a strict requirement to sue them. See Badger
Cath., Inc. v. Walsh, 620 F.3d 775, 782 (7th Cir. 2010); WIS. STAT. § 893.82(2m), (3). But the
law is rationally related to Wisconsin’s legitimate interest in preventing prisoners from
abusing the open-records law to harass or intimidate public officials. Regardless, Voss
admits that he somehow got the names of mailroom staff, likely through the grievance
system. See WIS. ADMIN. CODE § DOC 310.06(1) (“An inmate may use [the grievance
process] to raise issues regarding … employee actions that affect the inmate … .”).
Finally, Voss argues that 28 U.S.C. § 1915(g) is unconstitutional because he was
assessed a “strike” under 28 U.S.C. § 1915A for initiating this lawsuit that failed to state
a claim. He argues that § 1915(g) inhibits his right to petition the government for redress
of grievances by preventing him from bringing lawsuits without prepaying filing fees.
But this challenge is premature because he has not accrued three strikes, so § 1915(g)
has not yet impeded any litigation. See Lucien v. Jockisch, 133 F.3d 464, 468–69 (7th Cir.
1998). For clarity, we note that he incurs another strike in this appeal. See Hill v. Madison
Cnty., 983 F.3d 904, 906–07 (7th Cir. 2020).
We have considered Voss’s remaining arguments, but they are without merit.
AFFIRMED