Robert K. Decker v. MERRICK B. GARLAND, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 24, 2021 *
Decided March 29, 2021
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-1890
ROBERT K. DECKER,
Plaintiff-Appellant,
v.
MERRICK B. GARLAND, Attorney
General of the United States, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 19-cv-00233-JPG
J. Phil Gilbert,
Judge.
O R D E R
Robert Decker, a federal prisoner, appeals from the district court’s dismissal of
his complaint at screening. See 28 U.S.C. § 1915A. Decker filed suit in the district court
raising claims that the Bureau of Prisons and prison officials violated the
Administrative Procedure Act and his rights under the First, Fifth, and Fourteenth
* We have agreed to decide this case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-1890 Page 2
Amendments by: (1) not providing him access to the Bureau of Prison’s proposed rule
changes, thereby depriving him of the chance to engage in public comment on the
Bureau’s proposed rulemaking; and (2) not providing access to the Federal Register,
which deprived him of the opportunity to engage in public comment on proposed
rulemaking by other agencies.
At screening, the district court concluded that Decker’s Administrative
Procedure Act claim failed because the Bureau of Prisons had no duty to give notice of
rule changes proposed by other agencies and it provided a chance for comment on its
own proposed changes. In reaching that conclusion, the court relied on the Bureau’s
response to one of Decker’s administrative complaints. The response stated that inmates
had access to proposed Bureau of Prison rule changes, but Decker directly disputed that
representation in his complaint. With respect to Decker’s claim that lack of access to the
Federal Register violated his rights to freedom of speech and due process, the district
court concluded he had no claim because he had access to the same information in
“other forms,” relying on an unpublished case from this circuit, Thelen v. Cross,
656 F. App’x 778, 780 (7th Cir. 2016). The district court dismissed Decker’s complaint
with prejudice and assessed a strike under the Prison Litigation Reform Act. 28 U.S.C.
§ 1915(g).
We granted Decker’s motion for leave to appeal in forma pauperis, recruited
counsel to represent him in this appeal, and invited the appellees to participate since
they were not served with process in the district court. Recruited counsel filed Decker’s
opening brief on January 26, 2021, arguing that the district court erred in dismissing the
case at screening because it improperly relied on factual assertions made by the Bureau
of Prisons, even though Decker disputed those assertions in his complaint. Decker also
asserted that the court erred in concluding the Bureau of Prisons has no duty to provide
access to the Federal Register and in concluding Decker had access to the same
information “in other forms.” On February 23, the appellees notified this court that they
would not be filing a response brief and that they agree with Decker that dismissal at
screening was premature, that the district court improperly resolved a factual dispute in
their favor, and that Decker’s case should be remanded. In response, Decker concurred
that a remand for further proceedings would be appropriate.
We also conclude that remand is appropriate. The district court erred by
resolving a factual dispute in favor of the appellees at screening; specifically, whether
the Bureau of Prisons provides prisoners with access to its proposed rulemaking.
See, e.g., Felton v. City of Chicago, 827 F.3d 632, 635 (7th Cir. 2016) (PLRA screening

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No. 20-1890 Page 3
“cannot serve as a factfinding process for the resolution of disputed facts”). Further, the
Bureau’s response attached to Decker’s complaint did not state that prisoners have
access to proposed rulemaking by other agencies—only that they have access to final
rules—and therefore it did not provide a basis for dismissing Decker’s broader claims
based on lack of access to the Federal Register. Because the district court’s dismissal at
this phase was in error, the record should be corrected to show that Decker did not
incur a strike under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). See Hughes v.
Farris, 809 F.3d 330, 335 (7th Cir. 2015).
Accordingly, the district court’s order and judgment dismissing the case are
VACATED and this case is REMANDED to the district court for further proceedings
consistent with this order.

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