Cooper v. Schriro - example of conclusory allegation of retaliation

The Case: Cooper v. Schriro (8th Cir. 1999), The Court cites Sprouse v. Babcock, 870 F.2d 450, 452 (8thCir. 1989) (recognizing right to petition for redress of grievances under established prison grievance system);

and Hudspeth v. Figgins, 584 F.2d 1345, 1348 (4th Cir. 1978) (per curiam) (threat to prisoner may state claim of denial of access to courts if threats were intended to intimidate inmate from exercising that right), cert. denied, 441 U.S. 913 (1979).

However, the Court found that in this instance Cooper did not state a claim as to superintendent Michael Kemna based on his allegation that he "belie[ved]" Kemna ordered officers to file false violations against him in retaliation for his grievances. See Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam) (speculative and conclusory allegations cannot support retaliation claim).

Hudspeth v Figgins - threat of retaliation actionable - regardless of the success of the threat

Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir. 1978). Stating

Once judicial proceedings have been commenced, the state may not punish a prisoner for having sought judicial remedies. Russell v. Oliver, 552 F.2d 115, 116 (4th Cir. 1977); Haymes v. Montanye, 547 F.2d 188(2d Cir. 1976).

A threat of physical harm to a prisoner if he persists in his pursuit of judicial relief is as impermissible as a more direct means of restricting the right of access to the courts. Nor is it necessary that the prisoner succumb entirely or even partially to the threat. It is enough that the threat was intended to impose a limitation upon the prisoner's right of access to the court and was reasonably calculated to have that effect. See Lingo v. Boone, 402 F.Supp. 768, 775 (N.D.Cal.1975).

DeLoach v. Bevers - No Qualified immunity in deliberate coverup

DeLoach v. Bevers, 922 F.2d 618, 621-23 (10th Cir.1990) (denying qualified immunity to police officer on § 1983 claims in light of deliberate conduct amounting to coverup)

Threat to deny monies if suit is filed

Silver v. Cormier, 529 F.2d 161, 163 (10th Cir.1976) (recognizing right of access claim arising from threat to withhold monies if suit filed)

McKay v Hammock - a threat to retaliate if civil rights claim is filed.

McKay v. Hammock, 730 F.2d 1367, 1375 (10th Cir.1984) (remanding for consideration of right of access claim where state officer threatened retaliation if civil rights claim filed)

A "backwards looking" denial of access to the court complaint must include... !!!

The Case: Jennings v. City of Stillwater, 383 F.3d 1199 (10th Cir. 2004)

Background: Allison Jennings, the plaintiff, a Oklahoma State University (OSU) student, filed a 42 U.S.C. 1983 civil rights lawsuit against four OSU football players and members of the Stillwater Oklahoma Police Department.

The basis of the lawsuit is a sexual encounter between Ms. Jennings, the four football players. The plaintiff claims she was raped, and that the investigator, detective Robert Buzzard, failed to collect material evidence, failed to challenge the football players' account of the events, discouraged Plaintiff from prosecuting the football players in violation of state and federal law, and finally, caused the physical evidence from the alleged rape to be destroyed, making it difficult to maintain a civil action against the football players.

Side Note: Detective Buzzard, he had received an athletic scholarship to play baseball as a student. Detective Buzzard's second cousin, whom he sees about twice a year, is OSU's director of media relations.

The lawsuits were severed, and proceed against each group of defendants under different legal theories. The suit against the football players and OSU had been settled out of court, with a stipulation that the settlement amount remains confidential.

Three legal theories for a constitutional cause of action against the remaining defendants (City of Stillwater, Detective Buzzard and Officer Les Little) who allegedly mishandled or sabotaged the case against her alleged assailants, and the City of Stillwater - the issues of the appeal,.

1. That Detective Buzzard's failure to comply with Oklahoma statutes relating to rape investigations violated her procedural due process rights.
2. That the destruction of the rape kit, the failure to conduct follow-up investigations of material witnesses, and the inaccuracies and omissions contained in the police reports impaired her constitutional right of access to the courts.
3. An equal protection claim stating that over the course of the rape investigation Detective Buzzard discriminated against her by favoring and seeking to protect the football players.

The suit against detective Buzzard proceeded to trial where the district court granted summary judgment on the basis of qualified immunity as to the defendants on all claims. The Circuit Court affirmed.

[Read More]

This post only addresses the decision as to the denial of access to the court.

The court treated the issue as a "backwards looking" denial of access to the court, and found that the underlying complaint failed to meet the pleading requirements for backward looking claims established in Christopher v. Harbury, 536 U.S. 403.

The Explanation: According to Harbury, a backwards looking denial of access to the court complaint must "identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought." Id at 415.

In Jennings, the only remedy that could conceivably be awarded to Plaintiff as a result of the alleged police misconduct would be damages for the loss of her civil tort claim against the assailants; but this is precisely the same element of damage she sought and obtained in her suit against the four football players and OSU.

Far from being barred from bringing such an action, Plaintiff pursued her claims and reached a monetary settlement with the four football players and OSU. She thus had access to the courts, and obtained a remedy. Plaintiff has not specifically alleged, or presented evidence, that the settlement amount was inadequate on account of the government's actions so as to deny her meaningful relief.

At several points in her appellate briefs, she alludes to such a claim.

See, e.g., Pl. Br. 29. ("[T]he question is not merely whether Ms. Jennings could still maintain and prosecution and [sic] action, but also whether or not her ability to receive appropriate compensation has been compromised by the destruction of evidence having a non-speculative value to the case.");

Pl. Br. 30 (none of defendant's arguments "suggests that Ms. Jennings' ability to secure adequate relief was not materially impaired by the destruction of evidence.").

BUT... her complaint contains no such allegation, and the record contains no evidence on the point. Moreover, in light of the confidentiality of Plaintiff's settlement, there is no way such a claim could be evaluated.


CASES CITED RE: DENIAL OF ACCESS TO THE COURT

• Wilson v. Meeks, (10th Cir.1995)
• Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir.1994)
• Bell v. Milwaukee, 746 F.2d 1205, 1261 (7th Cir.1984)
• Ryland v. Shapiro, 708 F.2d 967, 971-73 (5th Cir.1983)
• Christopher v. Harbury, 536 U.S. 403 (2002)

NOTE: The Court cites Wilson v. Meeks, suggesting that denial of access to the court claims in the 10th Cir. does not include interference with discovery, but is limited to actions that interfere with the filing of the complaint. This is the case in the 5th Circuit (Foster v. City of Lake Jackson, citing Ryland v. Shapiro)

Parallel Case: Broudy, Alice P. vs. Mather, Susan H. - U.S. Court of Appeals for the D.C. Cir. - August 23, 2006, Federal Circuits, Docket 05-5085:

Analysis of forward/backward looking claims and the requisite elements of a Denial of Access to the Courts complaint per Christopher v. Harbury

Case: Broudy, Alice P. vs. Mather, Susan H. - U.S. Court of Appeals for the D.C. Cir. - August 23, 2006, Federal Circuits, Docket 05-5085:

Good analysis of Christopher v. Harbury, 536 U.S. 403 as to forward/backward looking claims, inclusive of well pled complaint requirements, and, generally speaking, the elements of a Denial-of-Access Claim.

"The Court found Harbury's complaint deficient in yet another way. Her complaint did not seek a particular type of remedy that the Court concluded is essential to a backward looking denial-of-access claim: [T]he complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought."