Kevin Harer v. Shane Casey ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3334
KEVIN HARER and HEATHER HARER,
Co-Executors of the Estate of Samantha Harer,
Plaintiffs-Appellees,
v.
SHANE CASEY, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-06822 — Robert W. Gettleman, Judge.
____________________
ARGUED MAY 26, 2020 — DECIDED JUNE 12, 2020
____________________
Before FLAUM, SCUDDER, and ST. EVE, Circuit Judges.
FLAUM, Circuit Judge. Samantha Harer died from a gunshot
wound to the head. The coroner concluded Samantha com-
mitted suicide. Samantha’s parents, Kevin and Heather
Harer, reject this finding. The Harers claim Samantha’s boy-
friend, Felipe Flores—a police officer for the town of Crest
2 No. 19-3334
Hill, Illinois—murdered Samantha during an argument at her
home in neighboring Channahon, Illinois.
The Harers sued Flores and Crest Hill in federal court: Flo-
res for wrongful death (among other torts) and Crest Hill for
its alleged unconstitutional practice of concealing officers’
misconduct, which the Harers allege emboldened Flores to
kill Samantha. The Harers also sued the Town of Channahon
and its Chief of Police Shane Casey, its Deputy Chief of Police
Adam Bogart, and Detective Andrew McClellan (collectively,
the “Channahon defendants”), asserting these defendants de-
nied the Harers their constitutional right of access to court
when they engaged in a cover-up to protect Flores.
The Channahon defendants moved to dismiss the access
claim, arguing they did not prevent the Harers from initiating
a wrongful death lawsuit against Flores within the statute of
limitations. The district court denied the motion, holding that
the Channahon defendants still frustrated their judicial access
by delaying the Harers’ suit and costing them money. Addi-
tionally, the court ruled that clearly established law prohib-
ited the officers’ conduct, so qualified immunity did not
shield the officers from suit.
We reverse the court’s judgment because the Harers have
access to remedies—and therefore access to court—in their
pending wrongful death suit. Accordingly, the Harers’ access
claim (Count II) is not ripe for review, and we remand with
instructions to dismiss it without prejudice.
I. Background
Kevin and Heather Harer claim that their daughter Sa-
mantha’s boyfriend, Felipe “Phil” Flores—a police officer in
Crest Hill, Illinois—shot Samantha to death. Because this case
No. 19-3334 3
comes to us on an interlocutory appeal from a denial of qual-
ified immunity on the pleadings, we recapitulate below the
Harers’ “well pleaded factual allegations in the complaint,”
which we accept “as true …, draw[ing] all reasonable infer-
ences in the [Harers’] favor.” Hardeman v. Curran, 933 F.3d
816, 819 (7th Cir. 2019).
A. Facts
On February 12, 2018, Samantha and Flores had a fight in
Samantha’s apartment in Channahon, Illinois. Consequently,
the couple slept separately that night: Samantha in her bed-
room and Flores on the couch. At 8:00 a.m. the next morning,
Flores confronted Samantha about her text conversations with
another officer that Flores discovered on her cell phone. The
confrontation escalated. A neighbor heard banging on the
walls and a woman repeatedly yelling: “Let me go.”
At 8:19 a.m., Flores called 9-1-1 and told the operator that
Samantha had shot herself. He explained that they had been
arguing, she had asked him to leave, and he was in the process
of leaving when he heard Samantha’s “gun rack” followed by
a single shot. Samantha’s bedroom door was locked, so he
“busted into the bedroom.” Flores saw Samantha uncon-
scious with a head wound and a gun laying between her legs.
The operator suggested Flores perform CPR, but Flores de-
clined; he said Samantha was not breathing and that he could
see her brain matter. Flores told the operator that he never
touched Samantha’s body. (He later recounted that he had
lifted her head after she shot herself. The police never asked
Flores to reconcile these inconsistent statements.)
Thereafter, police and emergency personnel arrived. They
observed a gunshot wound to Samantha’s head, among other
4 No. 19-3334
injuries, and detected a faint pulse. Although Flores told them
that he was on the other side of the locked door when he
heard Samantha shoot herself, there was blood spattered on
the front and right sleeve of Flores’s sweatshirt. Likewise, Flo-
res’s white socks did not have any blood on them, despite that
he said he was “kneeling” next to Samantha and “talking to
her” while he was still on the phone with the operator. Para-
medics took Samantha to the hospital, where she died.
An hour after the shooting, the Channahon detective in
charge of investigating Samantha’s death, Andrew McClellan,
examined the scene. He did so with a forensic evidence tech-
nician from the Illinois State Police. As the technician was
evaluating the blood spatter evidence, Detective McClellan in-
correctly told him that Flores had rendered aid to Samantha.
The Harers believe the detective misled the technician to min-
imize the significance of the blood splatter on Flores’s sweat-
shirt. They home in on how the investigators failed to ask Flo-
res why he had blood spatter on his clothing if he was not in
the room when Samantha discharged the weapon.
What is more, the Harers say the investigators never ques-
tioned Flores about why they found Samantha naked if the
couple was allegedly arguing prior to the shooting. Rather,
the investigators simply accepted Flores’s story that Saman-
tha was just “depressed,” as opposed to testing Flores for al-
cohol and drug use and looking into his prior history of vio-
lence against women. This alleged misconduct culminated in
Detective McClellan either implicitly or explicitly instructing
the technician to make a preliminary finding of suicide. The
technician complied and—without processing any forensic
evidence or talking to Flores, or any other witness—deter-
mined that the scene was consistent with a suicide.
No. 19-3334 5
A day later, Detective McClellan, joined by Channahon
Chief of Police Shane Casey, told Samantha’s parents that
their daughter had died from a self-inflicted gunshot wound.
Chief Casey and Detective McClellan did not tell the Harers
that a neighbor had heard a struggle shortly before the shoot-
ing or that Flores’s sweatshirt had blood spatter on it. Instead,
they told the Harers that Samantha’s hand was positive for
gunshot residue and that Flores’s was negative. That was not
true. No test discovered any gunshot residue on Samantha’s
hands. Conversely, tests revealed gunshot residue on Flores’s
right hand and the front and cuffs of his sweatshirt.
Eventually, a police officer in neighboring Plainfield came
forward with pertinent information about Samantha. Detec-
tive McLellan did not seek to interview the Plainfield officer
until three days before Channahon closed its investigation.
The Plainfield officer had frequently texted with Samantha
and told the detective that there was “no way” Samantha
would kill herself. Following the interview, Channahon
promptly closed the investigation without anyone ever ad-
dressing the matter with Flores.
According to the Harers, the police refused to communi-
cate with them, failing to provide even basic information
about who was supervising the investigation. At their wits’
end, the Harers retained an attorney to help them get answers
to their questions about their daughter’s death.
B. Procedural History
With the investigation into Samantha’s death up in the air,
the Harers sued Flores, Crest Hill, and Channahon in federal
court for conspiracy and excessive force under 42 U.S.C.
§ 1983 and Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978).
6 No. 19-3334
Counsel for the Harers withdrew in November 2018. The de-
fendants then moved to dismiss the claims alleged against
them in the Harers’ complaint. The district court scheduled a
status hearing for December 13, 2018. The Harers, lacking le-
gal representation, did not attend. The court rescheduled the
hearing and admonished the Harers to “appear at the
1/22/2019 hearing or this case will be dismissed for want of
prosecution.”
On December 28, 2018, the Harers met with Chief Casey,
his deputy Adam Bogart, a coroner, a prosecutor, and counsel
for Channahon. Chief Casey and Deputy Bogart informed the
Harers that they had officially ruled Samantha’s death a sui-
cide. The authorities based their decision on forensic evidence
demonstrating that the gunshot wound was self-inflicted.
Chief Casey and Deputy Bogart additionally told the Harers
that Samantha’s toxicology report pointed to suicide.
Unconvinced, the Harers asked when they could receive
and inspect their daughter’s belongings. The authorities told
them they could retrieve Samantha’s property upon the dis-
missal of their civil lawsuit. Similarly, the police department
refused to provide any investigative materials to the Harers
until after the dismissal of their suit. Believing that the official
finding of suicide now barred their pending lawsuit from pro-
ceeding, the Harers did not show up to court for the January
22 status hearing. Hence, the court dismissed the case for
want of prosecution.
The Harers subsequently learned that the gunshot residue
analysis implicated Flores, not their daughter. They also dis-
covered that Chief Casey and Deputy Bogart’s statements re-
garding Samantha’s toxicology report were false. The results,
in fact, were inconsistent with suicide. Accordingly, the
No. 19-3334 7
Harers retained new counsel who swiftly moved to vacate the
judgment of dismissal under Federal Rule of Civil Procedure
60(b). In the motion, the Harers insisted that they only
stopped prosecuting their case because of the incompetence
and ethical lapses of original counsel. Moreover, the Harers
maintained that they left the December 2018 meeting thinking
that their lawsuit could not move forward after the coroner
ruled Samantha’s death a suicide. The district court granted
the motion and the Harers filed their first amended com-
plaint.
A few weeks later, the Harers sought leave to file a second
amended complaint, reasserting their original claims and
naming Chief Casey, Deputy Bogart, and Detective McClellan
as defendants in a new access-to-court claim. The court
granted leave, and the Harers filed the operative second
amended complaint, asserting a Monell claim against Crest
Hill (Count I); an access-to-court claim against Casey, Bogart,
McClellan, and Channahon (Count II); wrongful death-
battery against Flores (Count III); Survival Act – Battery
against Flores (Count IV); and Survival Act – Intentional
Infliction of Emotional Distress against Flores (Count V).
The Channahon defendants moved to dismiss the access-
to-court claim, arguing that no constitutional deprivation oc-
curred, and even if it did, they were entitled to qualified im-
munity. The district court denied the motion, reasoning that
the Harers adequately pleaded an access-to-court claim based
on the December 2018 meeting. In the district court’s view,
“the Harers had to litigate their motion to reopen only be-
cause Channahon fooled them into dropping their suit.” This
unnecessary litigation, the court ascertained, caused the Har-
ers to spend “time and money that they would not otherwise
8 No. 19-3334
have needed to spend.” Additionally, the court rejected the
individual officers’ qualified immunity defense because of the
officers’ clear failures in their investigation.
This interlocutory appeal followed.
II. Discussion
As a threshold matter, the Harers argue we lack appellate
jurisdiction to resolve this case in its present interlocutory
posture. We only exercise our jurisdiction over appeals from
“final decisions” of district courts, and a denial of a motion to
dismiss is generally not one such final decision. 28 U.S.C.
§ 1291. For that reason, a denial of a motion to dismiss typi-
cally is not immediately appealable. See Jackson v. Curry, 888
F.3d 259, 262 (7th Cir. 2018).
But the collateral-order doctrine provides a limited excep-
tion to this rule. “The collateral-order doctrine permits an im-
mediate appeal of the denial of qualified immunity at the
pleadings stage … .” Id. Appellate jurisdiction over denials of
qualified immunity extends to “pure legal questions. … Thus,
defendants cannot immediately appeal factual determina-
tions regarding qualified immunity.” Id. An order denying
qualified immunity that turns on a pure legal issue is a “final
decision” under § 1291.
In this appeal, the Channahon defendants “accept the facts
and reasonable inferences favorable to [the Harers] for pur-
poses of the qualified-immunity inquiry at this stage.” Id.
They simply contend that “those facts and inferences do not
establish a violation of a clearly established constitutional
right … .” Id. at 263. “[W]e have jurisdiction to entertain that
argument” because the Harers have not identified a single fac-
tual dispute that the Channahon defendants ask us to resolve.
No. 19-3334 9
Id. Our jurisdiction is therefore secure. See, e.g., Levenstein v.
Salafsky, 164 F.3d 345, 347 (7th Cir. 1998).
Turning to the district court’s substantive analysis of the
Harers’ access-to-court claim, our standard of review is de
novo, as this appeal only presents questions of law. See Triad
Assocs., Inc. v. Robinson, 10 F.3d 492, 495 (7th Cir. 1993). We
conclude that the access claim is premature, or not ripe for
judicial review, because the Harers’ wrongful death lawsuit
remains pending with remedies available. Cf. Squires-Cannon
v. Forest Pres. Dist. of Cook Cty., 897 F.3d 797, 801 n.1 (7th Cir.
2018) (“The lack of a final judgment in the [underlying] action
could create a ripeness issue” for a claim derived from that
action.). Neither the district court nor the parties addressed
this issue in terms of ripeness. But because ripeness implicates
the district court’s subject-matter jurisdiction under Article III
of the Constitution, we must consider the question on our
own accord.1 See, e.g., Metro. Wash. Airports Auth. v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n.13 (1991).
Our opinion proceeds in four parts. First, we outline the
national law of judicial access, and specifically, backward-
1 Our prior precedents have not resolved access-to-court claims on
ripeness grounds. See generally Harrell v. Cook, 169 F.3d 428 (7th Cir. 1999);
Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995). Those decisions, however,
are distinguishable. In both Harrell and Vasquez, the plaintiffs’ underlying
tort claims were not pending at the same time—let alone in the same
case—as their access claims; the plaintiffs, indeed, were not pursuing any
tort claims at all. Harrell, 169 F.3d at 430–31; Vasquez, 60 F.3d at 326–28. In
contrast, here the Harers are actively litigating their underlying tort claims
alongside their access claim in the district court. We have previously never
been presented with a record that affords the same opportunity to recog-
nize that the appropriate disposition of an access claim, brought while the
underlying tort claim is pending, is dismissal without prejudice.
10 No. 19-3334
looking access claims alleging police misconduct in this Cir-
cuit. Second, we identify the available relief that creates a
ripeness problem for this specific access claim. Third, we as-
sume for argument’s sake that relief is unavailable, and that
the access claim is therefore ripe, to demonstrate that the dis-
trict court erred when it sustained the access claim on the of-
ficers’ post-filing misconduct. Fourth, we close with a com-
ment on qualified immunity. Ultimately, we order the dismis-
sal without prejudice of the access claim.
A. Access to Court
The Constitution promises individuals the right to seek le-
gal redress for wrongs reasonably based in law and fact. See
Christopher v. Harbury, 536 U.S. 403, 414–15 (2002); Snyder v.
Nolen, 380 F.3d 279, 291 (7th Cir. 2004). A corollary of this right
is the freedom from police interference with access to court,
such that an officer’s intentional concealment of “the true facts
about a crime may be actionable as a deprivation of constitu-
tional rights under [42 U.S.C.] § 1983.” Rossi v. City of Chicago,
790 F.3d 729, 734 (7th Cir. 2015); see also Vasquez, 60 F.3d at 328
(stating that police officers abridge constitutional rights when
their obfuscation of important facts about a crime “render[s]
hollow the right to seek redress”).
Granted, there is no “constitutional right to have the police
investigate [any] case at all, still less to do so to [anyone’s]
level of satisfaction.” Rossi, 790 F.3d at 735; see also Owsley v.
Gorbett, No. 19-1825, 2020 WL 2832116, at *2 (7th Cir. June 1,
2020) (“A person can have ample access to the courts, though
it will be hard to assemble the evidence needed to win.”). Put
another way, “mere inactivity by police does not give rise to
a constitutional claim.” Rossi, 790 F.3d at 735. In this regard,
“the operative question is not whether [a plaintiff’s] case
No. 19-3334 11
would have been better had the police conducted a worthy
investigation, but whether their failure to do so limited his
ability to obtain legal redress to such degree that it constituted
a denial of judicial access.” Id.
In Christopher, the Supreme Court bifurcated access-to-
court claims into two categories: “forward-looking,” and rel-
evant here, “backward-looking” claims. 536 U.S. at 413 & 414
n.11. Backward-looking claims concern “specific cases that
cannot now be tried (or tried with all material evidence), no
matter what official action may be in the future.” Id. at 413–
14. To use the terminology, “[t]hese cases do not look forward
to a class of future litigation, but backward to a time when spe-
cific litigation ended poorly, or could not have commenced,
or could have produced a remedy subsequently unobtaina-
ble.” Id. at 414 (emphasis added). Unlike forward-looking
claims, the “ultimate object” of backward-looking claims “is
not the judgment in a further lawsuit, but simply the judg-
ment in the access claim itself, in providing relief obtainable
in no other suit in the future.” Id.
The Supreme Court assumed without deciding that the
backward-looking court of appeals decisions it cited in Chris-
topher were correct. Id. at 414 n.9. One such decision was our
opinion in Bell v. Milwaukee, 746 F.2d 1205 (7th Cir. 1984), over-
ruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir.
2005). For this Circuit, Bell marked the birth of backward-
looking access-to-court claims premised on officer miscon-
duct. Bell also serves as an example of how a police cover-up
can effectively—but not literally—deny a plaintiff access to
court.
In that case, Bell’s father sued officers for his son’s wrong-
ful death and settled for a sum so meager that he never cashed
12 No. 19-3334
the check. Id. at 1215. Twenty years later, one of the officers
admitted to a cover-up. Id. Bell’s family filed another lawsuit,
alleging that the police department conspired to conceal the
true way Bell died and that this conspiracy deprived the
plaintiffs of their due process right of access to court. Id. at
1224. The jury returned a verdict for the Bells and awarded
them damages that were significantly higher than the amount
Bell’s father previously settled for. Id. at 1225.
On appeal, Milwaukee argued that the federal Constitu-
tion did not protect the Bells’ right of access to court. Id. at
1260. We held that the police officers’ obstruction of Bell’s fa-
ther’s legitimate efforts to vindicate his son’s killing interfered
with his due process right of judicial access. Id. at 1261. The
cover-up effectively foreclosed Bell’s father’s ability to gather
the facts and pursue relief. Id. We reached this result in large
part because of the substantial prejudice caused by the exces-
sive delay. Id. at 1264. Among other things, the statute of lim-
itations had expired, meaning the cover-up had permanently
obstructed the potential for legal redress on the underlying
wrongful death claim. Id. at 1231.
Since Bell, we have examined backward-looking access-to-
court claims asserting police cover-up theories on a few other
occasions. See Rossi, 790 F.3d at 735–37; Cannon v. Burge, 752
F.3d 1079, 1096–1101 (7th Cir. 2014). We have consistently
highlighted that “[t]he cornerstone of our decision in Bell was
that the conspiracy had prevented a full and open disclosure
of facts crucial to the cause of action, rendering hollow the
plaintiffs’ right of access.” Vasquez, 60 F.3d at 329. A cover-up
that somewhat delays redress but “still allow[s] sufficient
time for the plaintiff to file a civil action before the expiration
No. 19-3334 13
of the limitations period” does not substantially prejudice the
plaintiff’s access to court. Rossi, 790 F.3d at 736.
As Bell and its progeny appreciate, the road to relief for a
backward-looking access-to-court claim—which is what the
Harers seek here—is an exceedingly narrow one. The Harers
must show that the Channahon defendants’ actions effec-
tively precluded them from obtaining relief on their underly-
ing claims. “The most compelling evidence would be if [the
Harers] went to the … courthouse and w[ere] physically pre-
vented or mechanically barred from filing [their] lawsuit or
[their] suit was dismissed as untimely.” Swekel v. City of River
Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997). This appeal, how-
ever, does not hinge on whether the Harers could enter the
courthouse and file suit because, like Bell’s father, they have.
Rather, the issue is whether the alleged police cover-up has
rendered the Harers’ already-filed suit ineffective. See id. (In
legal terms, the Harers have founded their claim upon a con-
structive—not an actual—denial of access to court.) We move
to that matter now.
B. Remedies and Ripeness
The Harers ground their backward-looking access-to-
court claim in the theory that the defendants’ alleged cover-
up frustrated their wrongful death and other tort claims
against Flores. The Harers argue that the defendants ob-
structed their meaningful access to court both before and after
they filed their lawsuit; specifically, that the officers have been
purposefully misleading and lying to them about the under-
lying facts of the investigation to cover up Samantha’s murder
at the hands of Flores. The Harers essentially allege that the
police department sabotaged its investigation and is still con-
cealing and obscuring important facts about Samantha’s
14 No. 19-3334
death. To this day, the Harers assert, the police seek to prevent
the Harers from uncovering the truth about what happened
to their daughter.
To determine whether a plaintiff has meaningful and ef-
fective access to court, we require the plaintiff to identify: (1) a
nonfrivolous, underlying claim; (2) the official acts frustrating
the litigation; and (3) a remedy that may be awarded as rec-
ompense but that is not otherwise available in a suit or settle-
ment. See Christopher, 536 U.S. at 415; Steidl v. Fermon, 494 F.3d
623, 633 (7th Cir. 2007); Snyder, 380 F.3d at 296 (Ripple, J., dis-
senting); see also Waller v. Hanlon, 922 F.3d 590, 602 (5th Cir.
2019); Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013);
Broudy v. Mather, 460 F.3d 106, 120 (D.C. Cir. 2006).
We can assume for the sake of argument that the Harers’
claim satisfies the first and second elements. (This assumption
we make for the purposes of decision is a substantial one,
given our doubts about what constitutes clearly established
law in this context. Infra at 22; see also Owsley, 2020 WL
2832116 at *1–2 (expressing “doubts” and “skepticism” about
a similar access approach).) The Harers’ claim nevertheless
fails on the third element: They have not specified what rem-
edy the alleged police cover-up has put out of reach. Cf. Rossi,
790 F.3d at 736 (“Whether a cover-up (or a clear failure to in-
vestigate) occurred is merely one, albeit important, factor in
determining whether a denial of judicial access occurred; the
plaintiff must also show that the police’s actions harmed his
ability to obtain appropriate relief.”).
Generally speaking, “[a] backwards looking access claim
may arise where a plaintiff alleges an underlying claim cannot
be tried, or be tried with all the evidence, because official con-
duct caused the loss or inadequate resolution of that claim.”
No. 19-3334 15
Lynch v. Barrett, 703 F.3d 1153, 1157 (10th Cir. 2013); see also
Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 625 (9th
Cir. 1988) (requiring an access-to-court plaintiff to “causally
connect[ ]” the defendants’ actions to a “failure to succeed in
the present lawsuit”). The Channahon defendants have not
caused the loss or inadequate resolution of the Harers’ under-
lying tort claims. Quite the contrary, the Harers’ are actively
litigating those claims with evidence they have adduced.
There is nothing in the record to suggest that the remedy the
Harers seek is “not otherwise available” in their pending law-
suit against Flores. Christopher, 536 U.S. at 415.
We could debate whether the Harers’ allegations, if true,
will affect the Harers’ ability to recover on the underlying
claims. They may or may not; it is just “too early to say. Unless
and until the [Harers’] claim against [Flores] suffers some con-
crete setback traceable to the defendants’ alleged cover-up,
their allegation that the defendants impaired their effort to
bring that claim is no more than speculation about an event
that may or may not come to pass.” Waller, 922 F.3d at 602; see
also id. at 603 (“[A]ny harm … has yet to manifest.”); Swekel,
119 F.3d at 1264 (“A plaintiff cannot merely guess that
a … remedy will be ineffective because of a defendant’s ac-
tions.”). We need look no further than the Harers’ own appel-
late brief to realize that “[t]he extent to which Chan-
nahon[ ] … has permanently impeded Plaintiffs’ ability to
demonstrate that Flores murdered Samantha Harer is un-
known.”
This uncertainty is why an access-to-court claim ordinar-
ily may not proceed at the same time and in the same case as
a timely-filed underlying claim; a remedy cannot be ineffec-
tive if it is yet to be realized. Cf. Swekel, 119 F.3d at 1264
16 No. 19-3334
(“[H]ow is this court to assess whether … access was in fact
‘effective’ and ‘meaningful’?”). The filing of a case under-
mines the argument that an individual lacks access to court.
See Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998)
(“[B]ecause the Delews’ wrongful death action remains pend-
ing in … court, it is impossible to determine whether this
[foreclosure of access] has in fact occurred.”); see also Pollard v.
Pollard, 325 F. App’x 270, 272 (4th Cir. 2009) (“Pollard’s
timely-filed wrongful death action is pending … and there-
fore she cannot credibly assert that Defendants’ actions fore-
closed her ability to file suit.”).
We simply cannot measure the adequacy of relief if the
pursuit of relief—i.e., the prosecution—is ongoing. For this
reason, relief must be “completely foreclosed,” Broudy, 460
F.3d at 120 (citation omitted), whether by “[1] the loss or in-
adequate settlement of a meritorious case, [2] the loss of an
opportunity to sue, or [3] the loss of an opportunity to seek
some particular order of relief,” Christopher, 536 U.S. at 414
(citations omitted). In other words, a plaintiff must “demon-
strate substantial and irreparable prejudice” to his or her
sought-after remedy. Flagg, 715 F.3d at 179 (indicating that
“merely ‘arguable claims are settled, bought, and sold,’” so
“even a marginal weakening of the underlying claim might
suffice … because it might have irreversibly reduced the
amount for which the defendant would be willing to settle.”)
(citation omitted).
Any other rule would contradict the Supreme Court’s di-
rection that a remedy available “in some suit that may yet be
brought” or for “a presently existing claim” defeats this ele-
ment of a plaintiff’s access-to-court claim. Christopher, 536 U.S.
at 415–16; see also id. at 414 (“These cases … look … backward
No. 19-3334 17
to a time when specific litigation ended poorly, or could not
have commenced, or could have produced a remedy subse-
quently unobtainable.”) (emphasis added). Resolution of the
underlying claims is essential because the entire paradigm of
backward-looking access “turns on … an opportunity already
lost, [and] the very point of recognizing any access claim is to
provide some effective vindication for a separate and distinct
right to seek judicial relief for some wrong.” Id. at 414–15; see
also id. at 415 (“[The Supreme Court’s] cases rest on the recog-
nition that the right is ancillary to the underlying claim, with-
out which a plaintiff cannot have suffered injury by being
shut out of court.”).
We remain mindful that “[t]here is … no point in spending
time and money to establish the facts constituting denial of
access when a plaintiff would end up just as well off after lit-
igating a simpler case without the denial-of-access element.”
Id. at 415. Indeed, perhaps that is why courts often describe
access claims as arising in a separate lawsuit from the under-
lying litigation. See, e.g., In re Maxy, 674 F.3d 658, 660–61 (7th
Cir. 2012) (“Relief for the denial of access to the courts is in-
tended to remedy rights denied in a separate case due to the
impediment.”).2
2 To be clear, wedo not hold “that a filed suit on the underlying claim
is a prerequisite for a backward-looking access claim, because [such a
holding] would foreclose access claims in the most heinous cases where a
cover-up was so pervasive that any timely attempt to litigate would have
seemed futile.” Christopher, 536 U.S. at 416 n.14; see also Bell, 746 F.2d at
1261 (“To deny such access defendants need not literally bar the court-
house door or attack plaintiffs’ witnesses . … Though [the plaintiff] filed a
wrongful death claim in … court soon after the killing, the cover-up and
18 No. 19-3334
Here, it is precisely because the Harers are in court on the
underlying claims that they do not have an access-to-court
claim. The Harers were able to file this lawsuit and present
substantial facts of central importance to their case. See Sousa
v. Marquez, 702 F.3d 124, 128 (2d Cir. 2012) (“[A] plaintiff who
has knowledge of the facts giving rise to his claim and an op-
portunity to rebut opposing evidence does have adequate ac-
cess to a judicial remedy.”). “Indeed, this very opinion
demonstrates that the [Harers] have been able to develop the
facts in this case quite effectively.” Estate of Smith v. Marasco,
318 F.3d 497, 512 (3d Cir. 2003).
Not only are the Harers’ claims pending in federal court,
the Harers have the full discovery process available to them.
They can submit requests for documents, issue interrogato-
ries, take depositions, and the like as part of trying to learn,
confirm, or uncover facts to support their theories of wrongful
death and related cover-up. All discovery will occur under the
district court’s supervision, and the court can address any
fraud it finds. Discovery provides the Harers with access to
information, and as a result, access to court.
Our point is that the Harers may yet obtain damages
through their wrongful death and other tort claims against
Flores for allegedly murdering their daughter, not to mention
their Monell claim against Crest Hill. See Christopher, 536 U.S.
at 421–22 (determining that other avenues were open for the
recovery of money damages in additional pending causes of
action, such as an intentional infliction of emotional distress
claim, so there was no basis for an access-to-court claim); see
resistance of the investigating police officers rendered hollow his right to
seek redress … .”).
No. 19-3334 19
also Steidl, 494 F.3d at 633 (concluding plaintiff was requesting
same relief in access claim, compensatory and punitive dam-
ages, that he would procure if he eventually prevailed on his
underlying false imprisonment and Monell claims).
At bottom, the Harers’ backward-looking access-to-court
claim is untenable because their underlying tort claims are
timely, facially plausible, and still pending. With the ultimate
resolution of their wrongful death case in doubt, the Harers’
access-to-court claim is not ripe for judicial review.3 See Wal-
ler, 922 F.3d at 603 (adopting the Ninth Circuit’s approach of
resolving these types of undeveloped backward-looking ac-
cess-to-court claims on ripeness grounds). While the wrong-
ful death case is pending, we cannot determine whether the
police cover-up thwarted the effectiveness of any potential
remedies because those remedies do not yet exist. See Church
of Our Lord & Savior Jesus Christ v. City of Markham, Ill., 913
F.3d 670, 676 (7th Cir. 2019) (defining the objective of ripeness
as “avoid[ing] premature adjudication” of “claims premised
on uncertain or contingent events”).
All the same, it is theoretically possible that the Harers will
be able to plead an access claim in the future if their wrongful
death action falters in later states of litigation. Because the
Harers’ claim requires further factual development, it is not
ripe. See Amling v. Harrow Indus. LLC, 943 F.3d 373, 378 (7th
Cir. 2019) (citation omitted) (describing ripeness as barring us
“from deciding a question that depends on so many future
events that a judicial opinion would be ‘advice about remote
3 This holding applies with equal measure to the Harers’ allegations
of both pre- and post-filing conduct. As explained infra, however, their
post-filing allegations are likely nonactionable.
20 No. 19-3334
contingencies.’”). We therefore order the dismissal without
prejudice of the Harers’ access-to-court claim (Count II).
C. Post-Filing Police Interference
Even if the Harers lacked a remedy, and their access claim
was thus ripe for review, the district court erred in any event
when it upheld the access claim on the officers’ alleged post-
filing obstruction. The district court appears to have declined
to dismiss the Harers’ access-to-court claim solely based on
the December 2018 meeting. The court reasoned that “Chan-
nahon fooled [the Harers] into dropping their suit” during
that meeting, resulting in them having “to litigate an unnec-
essary motion to reopen.” The court recognized an access
claim predicated on unnecessary delay and the litigation costs
associated with reviving a lawsuit.
As an initial matter, we agree with the Fifth Circuit that
“showing delay alone is not enough; the plaintiffs must like-
wise show the delay caused some further harm to their cause
of action.” Waller, 922 F.3d at 603; see also supra at 12–13 (delay
does not necessarily spell the demise of litigation). Expense
associated with delay, in and of itself, also does not tangibly
harm a cause of action. Cf. Owsley, 2020 WL 2832116 at *2
(“None of the Supreme Court’s ‘access to the courts’ cases
hints that a potential discovery problem can be the basis of a
[separate] suit, when the … courts are open.”). Instead, the
kind of injury cognized by judicial-access law is, as we stated
above, the complete foreclosure of relief. Supra at 16; see also
Lynch, 703 F.3d at 1157 (“Plaintiff has already litigated his un-
derlying claim of excessive force against Defendant Officers
unsuccessfully, and so his opportunity to recover on that
claim has passed. … Plaintiff now seeks, by way of his denial-
of-access claim in the district court, relief against Defendant
No. 19-3334 21
Officers that is unavailable on his underlying claim for exces-
sive force.”).
More to the point, the December 2018 meeting occurred
well after the Harers filed their suit. We find instructive the
framework our sister circuits have implemented to further re-
fine the backward-looking claim into the following dichot-
omy: officers’ actions hindering judicial access that predate
the lawsuit’s filing compared with those postdating it. See,
e.g., Swekel, 119 F.3d at 1263. Importantly, if the abuse occurs
post-filing, “the aggrieved party is already in court and that
court usually can address the abuse, and thus, an access to
courts claim typically will not be viable.” Id.; see also Estate of
Smith, 318 F.3d at 511 (“[A] plaintiff typically cannot recover
for any cover-ups or discovery abuses after an action has been
filed inasmuch as the trial court can deal with such situations
in the ongoing action.”); Sousa, 702 F.3d at 128 (“If a govern-
mental official is lying, for instance, the plaintiff can attempt
to demonstrate the falsity of the official’s statements through
discovery and argument before the court.”).
In this case, the district court’s justification for its disposi-
tion was the December 2018 meeting. Regardless of whether
we believe defendants’ statements in the meeting were
proper, the district court was in the best position to deal with
any potential deception that occurred during that meeting.
See Owsley, 2020 WL 2832116 at *2 (underscoring that courts
can “issue[ ] discovery orders, and if the objects of those or-
ders concealed or destroyed evidence, the [trial] judge [may
find] them in contempt or impose[ ] other appropriate sanc-
tions”); see also id. (“Spoliation of evidence all too often re-
quires resolution in the course of litigation.”); Henderson v.
Frank, 293 F. App’x 410, 413 (7th Cir. 2008) (“This alleged
22 No. 19-3334
violation took place after he had filed the suit in question, and
so the proper forum for addressing the abuse was the court
hearing that case, not another court in a later lawsuit.”).
The right of access to court, after all, “encompasse[s] a
right to file an action, but not the right to proceed free of dis-
covery abuses after filing.” Foster v. City of Lake Jackson, 28 F.3d
425, 430 (5th Cir. 1994). The whole “point of the backward-
looking right of access … is to ensure that plaintiffs have that
opportunity—not to convert every instance of deception by a
governmental witness into a separate federal lawsuit.” Sousa,
702 F.3d at 128–29; see also Bell, 746 F.2d at 1265 (“Not every
act of deception in connection with a judicial proceeding gives
rise to an action under Section [1983].”). Accordingly, post-fil-
ing conduct generally cannot serve as a basis for an access-to-
court claim. Instead, a plaintiff must utilize pre-filing actions
to build any access-to-court claim.
D. Qualified Immunity
As a final observation, we note that we need not—and we
do not—reach qualified immunity. It remains an open ques-
tion, however, whether the Harers can prove that the Chan-
nahon defendants violated their clearly established constitu-
tional rights. Cf. Harrell, 169 F.3d at 432–33 (emphasizing that
this is “[t]he more difficult question” and “find[ing] that it is
not clear enough that the … Bell approach would be extended
to this kind of case”). We leave that matter for another day,
depending on the potential development of facts not included
in this record.
No. 19-3334 23
III. Conclusion
For the reasons stated above, we REVERSE the judgment of
the district court and REMAND WITH INSTRUCTIONS to dismiss
without prejudice the access-to-court claim (Count II).