Mario Harris v. Michael Meisner

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 23, 2021*
Decided November 29, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 20-2650
MARIO HARRIS,
Plaintiff-Appellant,
v.
MICHAEL MEISNER, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-C-950
William C. Griesbach,
Judge.
O R D E R
Mario Harris, a Wisconsin prisoner, appeals the dismissal of his complaint under
42 U.S.C. § 1983, in which he alleged that prison staff members lost or destroyed his
legal materials and retaliated against him for filing grievances. Because the district court
* The appellees were not served with process and are not participating in this
appeal. We have agreed to decide the case without oral argument because the
appellant’s brief and the record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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entered final judgment without ever allowing Harris an opportunity to amend his
complaint, we vacate the judgment and remand for further proceedings.
In his complaint, Harris alleges that he was transferred to Redgranite
Correctional Institution in 2018 because of grievances he had filed at his previous
prison. Several boxes of discovery materials for various civil and criminal cases
accompanied Harris to Redgranite. But staff members there informed him that prison
policy prevented him from storing the materials in his cell; they would be destroyed if
he did not find somewhere else to keep them. He managed to place the materials with
his sister, but she had to abandon them when she suddenly lost her housing.
In March 2019, the prison received several additional boxes of Harris’s legal
materials, including 27 discs of discovery material, from his former attorney. These
were examined by staff, and three of the discs were flagged for review. One later went
missing. Harris was limited to 50 minutes per week to review his materials, which he
says is less than what is normally permitted. He filed grievances about the time limit,
which he said interfered with legal challenges to his criminal conviction and sentence.
When the grievances did not resolve his problems, Harris sued. He asserted that,
by insisting on reviewing his discovery materials—and possibly causing some to go
missing—a prison librarian violated policies of the Wisconsin Department of
Corrections, as well as his right to due process under the Fourteenth Amendment. He
also alleged that a correctional officer destroyed a disc containing discovery materials in
retaliation for Harris filing grievances, in violation of his First Amendment rights.
Finally, Harris claimed that various defendants unconstitutionally interfered with his
right to access the courts by destroying some discovery materials and limiting his time
to work with others.
The district court dismissed Harris’s complaint at screening, see 28 U.S.C.
§ 1915A, for failure to state a claim against any of the defendants. The court concluded
that the librarian had not violated any policy and, even if she had, a policy violation in
itself cannot give rise to a federal due-process claim. And although prison policy might
have caused Harris’s sister to take possession of his discovery materials, no defendant
was responsible for their ultimate loss. The court also determined that the “only
plausible inference” explaining the loss of one of the three discs of litigation material
seized at the prison was negligence. The defendants had no apparent motive, and
Harris did not allege that any defendant made a comment “suggesting [the defendants]
were upset about his grievances.” Finally, the court concluded that Harris could not

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No. 20-2650 Page 3
state an access-to-courts claim based on restricted access to discovery materials because
his alleged injury was too speculative, in part because it was not clear if he had ever
even filed a collateral attack on his conviction and sentence.
The district court dismissed the complaint with prejudice and simultaneously
directed the entry of final judgment, see F ED R. C IV. P. 58(b), without giving Harris a
chance to amend his complaint. Harris filed a notice of appeal and, on the same day,
moved for leave to file an amended complaint. The district court denied Harris’s motion
for leave to amend in a brief text order, explaining that that his notice of appeal had
divested it of jurisdiction.
On appeal, Harris argues that the district court erred by not allowing him to
amend his complaint. We agree. We review denials of leave to amend for abuse of
discretion. Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510,
524 (7th Cir. 2015). We have noted that it is “a somewhat unorthodox practice” to close
a case at the same time as dismissing the complaint because it “eviscerate[s]” the
plaintiff’s ability to amend his complaint. Chaudhry v. Nucor Steel-Ind., 546 F.3d 832, 838–
39 (7th Cir. 2008). Plaintiffs should ordinarily be given at least one opportunity to
amend a complaint before the entire action is dismissed. Runnion, 786 F.3d at 519;
Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010); Foster v. DeLuca, 545 F.3d 582,
584 (7th Cir. 2008); Barry Aviation Inc. v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d
682, 687 & n. 3 (7th Cir. 2004) (collecting cases). This applies equally to prisoners and
pro se litigants proceeding in forma pauperis. Abu-Shawish v. United States, 898 F.3d 726,
738 (7th Cir. 2018); Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (noting the rule
applies to prisoners); Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022–23 (7th Cir.
2013) (noting the rule applies to IFP pro se plaintiffs). If, however, it is “certain from the
face of the complaint that any amendment would be futile or otherwise unwarranted,”
entering final judgment is appropriate. Runnion, 786 F.3d at 520 (emphasis in original)
(quotation marks and citation omitted).
Here, however, the district court did not say that amendment would be futile; it
did not give any reason for the with-prejudice dismissal. And the screening order
suggests that some added factual allegations could have rendered at least some claims
plausible. Our de novo review of the complaint does not persuade us that it is beyond
all hope that Harris might state a claim for relief.
One final note. The district court was correct that Harris’s notice of appeal
stripped it of jurisdiction. See United States v. Ali, 619 F.3d 713, 722 (7th Cir. 2010). But it

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did not have to deny the motion for leave to amend the complaint for that reason. It had
the option to consider the motion and notify this court if it was inclined to grant it, or if
the motion raised a substantial issue. See F ED. R. C IV. P. 62.1. (Because the court had
taken the “unusual step” of simultaneously dismissing an original complaint and
entering judgment, Runnion, 786 F.3d at 521, it would essentially be construing the
motion as one under Rule 59(e), see Chaudhry, 546 F.3d at 839.) We then could have
remanded for the district court to consider in the first instance whether amendment
would be futile, or to simply allow the amendment without necessitating this appeal.
For these reasons, we VACATE the judgment and REMAND with instructions to
allow Harris to file an amended complaint. For clarity of the record, we note that this
ruling erases, for now, the strike imposed by the district court under 28 U.S.C. § 1915(g),
but if any amended complaint fails to state a claim, a strike will be incurred.

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