Herman L. Nitz, Jr. v. James A. Hall

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 26, 2012*
Decided July 26, 2012
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-2421
HERMAN L. NITZ, JR.,
Plaintiff-Appellant,
v.
JAMES A. HALL, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 11-1143
James E. Shadid,
Chief Judge.
O R D E R
Herman Nitz, an Illinois prisoner, appeals from the dismissal of his complaint filed
under 42 U.S.C. §§ 1983 and 1985, alleging denial of access to the courts. We affirm.
In his amended complaint, Nitz alleged that employees of the Illinois River
Correctional Center and Illinois Department of Corrections violated his due process rights
under the Fourteenth Amendment when they confiscated DVDs that had been mailed to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
The defendants were not served in the district court and are not participating in*
this appeal. Therefore the appeal is submitted on the appellant’s brief and the record. See
FED. R. APP. P. 34(a)(2)(C).

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No. 11-2421 Page 2
him by his former appointed counsel in Nitz v. Doe, No. 08-cv-0334 (N.D. Ill. Jan. 15, 2008), a
civil case in which he was now proceeding pro se. Nitz alleged that the prison employees
had opened, outside of his presence, his legal mail (clearly labeled as such, he says)
including legal documents and at least four DVDs depicting video surveillance related to
his criminal cases. According to the complaint, Nitz informed prison employees that he
needed the DVDs to proceed in the pending litigation, but the employees took the DVDs as
contraband and refused to provide accurate “shakedown slips” inventorying the number of
DVDs taken. As a result of the employees’ actions, Nitz says, his petition for review of his
state criminal conviction was denied, see People v. Nitz, No. 11-1456, 943 N.E.2d 1106
(Ill. 2011); his civil case in Nitz v. Harvey, No. 09-cv-0015 (N.D. Ill. July 27, 2009), was
dismissed; summary judgment was granted for two defendants in Nitz v. Doe, No. 08-cv-
0334 (N.D. Ill. Nov. 18 and 22, 2010); and his social security disability appeal was denied.
He further alleged that prison employees intentionally “messed up” legal copies by
copying only one side of two-sided documents and refused to provide him with the
original materials; that prison grievance officers “refused to investigate” grievances he had
filed against prison library staff; and that his former parole officer thwarted his success in
his criminal and civil cases by neither testifying on his behalf nor providing exculpatory
evidence. Nitz requested access to an unidentified “original source” of the DVDs.
At screening, the district court dismissed Nitz’s complaint for failure to state a
claim, see 28 U.S.C. § 1915A(b)(1). According to the court, Nitz’s allegations regarding the
confiscation of his legal materials did not state a claim because he did not allege prejudice;
he did not allege that he had been prevented from pursuing nonfrivolous claims in any of
his pending lawsuits. As for the claim at the center of this appeal—the denial of due
process resulting from the confiscation of legal materials in Nitz v. Doe—the court
determined that there was no injury because the DVDs were irrelevant to the dismissal of
the two defendants in that case—a police detective who, Nitz claimed, retaliated against
him for filing a prior lawsuit; and the City of Wheaton, which was said to have had a
practice of permitting its police officers to use excessive force. Nitz’s remaining allegations,
the court concluded, did not state claims of constitutional violations. In dismissing Nitz’s
complaint, the court imposed one “strike,” id. § 1915(g). The court also dismissed Nitz’s
claim against the parole officer without prejudice due to improper venue, id. § 1391(b).
On appeal, Nitz primarily challenges the district court’s conclusion that he did not
adequately allege harm from the confiscation of legal materials as they pertained to his suit
in Nitz v. Doe against the police detective and the City of Wheaton. Without these materials,
he asserts generally, he was “prevented” from pursuing arguments that “would have
caused him to prevail” at summary judgment.

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No. 11-2421 Page 3
We agree with the district court that Nitz’s complaint failed to state a denial-of-
access claim. To state such a claim, Nitz had to allege an actual injury, Lewis v. Casey, 518
U.S. 343, 353 (1996)—in other words, explaining “the connection between the alleged denial
of access to legal materials and an inability to pursue a legitimate challenge to a conviction,
sentence, or prison conditions,” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal
quotation and citation omitted). He alleged that the prison prevented him from effectively
litigating actions that were pending, but the right of access protects prisoners from “being
shut out of court,” Christopher v. Harbury, 536 U.S. 403, 415 (2002); it does not exist to
“enable the prisoners . . . to litigate effectively once in court,” Lewis, 518 U.S. at 354 (emphasis
in original); see Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006); accord Williams v. Hobbs,
658 F.3d 842, 852 (8th Cir. 2011). Because Nitz never alleged that confiscation of legal
materials hindered his ability to bring suit against the police detective and the City of
Wheaton, the district court properly dismissed his denial-of-access claim.
Nitz has now accrued at least three strikes under the Prison Litigation Reform Act,
see 28 U.S.C. § 1915(g): one for the dismissal of his complaint in Nitz v. Birkette, No. 11-C-
0044, 2011 WL 893035 (N.D. Ill. Mar. 11, 2011); a second for the dismissal of his complaint in
this case, Nitz v. Hall, No. 11-1143 (N.D. Ill. June 16, 2011); and a third for this frivolous
appeal, see Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir. 1997). Accordingly, he is
barred from bringing civil suits in forma pauperis. In any future civil action, he must alert
the court to his three-strike status and prepay all filing fees unless he can demonstrate, at
the time of filing, that he is “under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g); Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008).
The judgment is AFFIRMED. Nitz’s motion for leave to proceed in forma pauperis
on appeal is DENIED. (We had provisionally granted his motion for leave to proceed in
forma pauperis on appeal on the condition that he persuade us that the district court erred
in imposing a strike below, see Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010); he has
failed to do so.) Now he must pay the full filing fee for this appeal.

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