Seventh Circuit Holds Claims for Denial of Access to the Courts Do Not Need to be Plead with Particularity

Per Pratt v. Tarr, 464 F.3d 730 (7th Cir. Sept. 27, 2006):

The plaintiff in this state prisoner's civil rights suit claims that prison officials violated his constitutional right to access to the courts. . . . The district judge dismissed the suit on the ground that the plaintiff had failed to plead a claim of denial of access to the courts with the requisite particularity--failed to "provide more than general allegations that defendants hindered his ability to pursue these or any other non-frivolous legal actions."

In so ruling the judge relied primarily on Ortloff v. United States, 335 F.3d 652, 656 (7th Cir.2003), which holds that to avert dismissal on the pleadings the plaintiff in a denial of access case "must make specific allegations as to the prejudice suffered because of the defendants' alleged conduct." He must do this "because a right to access-to-courts claim exists only if a prisoner is unreasonably prevented from presenting legitimate grievances to a court; various resources, documents, and supplies merely provide the instruments for reasonable access, and are not protected in and of themselves. Thus, when a plaintiff alleges a denial of the right to access-to-courts, he must usually plead specific prejudice to state a claim, such as by alleging that he missed court deadlines, failed to make timely filings, or that legitimate claims were dismissed because of the denial of reasonable access to legal resources."

Ortloff in turn relied solely on Martin v. Davies, 917 F.2d 336 (7th Cir.1990), which had been decided before the Supreme Court, in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), made emphatically clear that federal courts are not to supplement the list in Rule 9(b) of the Federal Rules of Civil Procedure of claims that must be pleaded with particularity.

. . .

The list in Rule 9(b) of claims that must be pleaded with particularity does not include claims of denial of access to the courts, and so in Nance v. Vieregge, 147 F.3d 589, 590-91 (7th Cir.1998), we had held (as noted in Thomson v. Washington, supra, 362 F.3d at 971) that there is indeed no heightened-pleading requirement for such claims. And shortly after the decision in Ortloff, another panel of this court had stated the pleading requirement for a denial of access claim thus: "In order to avoid dismissal ... [plaintiff] therefore had to allege that he had a non-frivolous legal claim that was frustrated or impeded by [defendant's] failure to assist him in the preparation and filing of meaningful legal papers and that he was harmed by [defendant's] action (or lack thereof)." Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir.2004). This is the language of notice pleading, not, as in Ortloff, of fact pleading, notice pleading being all that is required of claims that don't fall within the scope of Rule 9(b).