# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted November 1 , 2019 *

Decided November 4 , 2019

Before

AMY C

. BARRETT , Circuit Judge

MICHAEL B. BRENNAN , Circuit Judge

MICHAEL Y. SCUDDER , Circuit Judge

No. 1 7

- 3074

MICHAEL MORRIS , Plaintiff

- Appell ant ,

v

.

TAMMY DICKMAN and DIANE FREMGEN , Defendant s

- Appell ees

. Appeal from the United States District Court for the Western District of Wisconsin

.

No. 1 5

- cv

- 712

- wmc
William M. Conley , Judge

.

O R D E R

Michael Morris, a Wisconsin inmate , sued a Wisconsin clerk of court and two other state officials under 42 U.S.C. § 1983, alleging that they violated the First Amendment by denying him access to the courts to litigate several petitions for writs of mandamus

. The district court dismissed one defendant at screen ing and later granted

* We have agreed to decide the case without oral argument because the briefs and 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 NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 17

- 3074 Page 2

the remaining defendants’ mo tion to dismiss. We affirm the judgment because Morris fails to allege that any defendant prevented him f rom litigating meritorious petitions.

This case ar ose after Morris lost his bid s on petitions for writs of mandamus that he filed with Wisconsin ’s c ourt s

. Morris principally blames one state employee

— Diane Fremgen ( the Clerk of Court for Wisconsin ’s appellate and supreme court )

— for several losses

. On review of his dismissed complaint, we accept his factual allegations as true. See Marshall v. Knight , 445 F.3d 965, 968 (7th Cir. 2006).

The first loss was Morris’s unsuccessful petition for a writ of mandamus i n state appellate court in 2013

. Morris’s petition asserted that Fremgen’s office removed documents from his criminal

- ap peal file and prevent ed him from filing documents in his case

. In docketing his petition, Fremgen allegedly made two mistakes

. The first involves the caption of the petition . It listed a judge ( who had previously prosecuted Morris ) as the sole defendant , though the petition’s contents targeted Fremgen and a deputy clerk

. Morris asked Fremgen to c hange the caption, but she did not. The second error occurred after Morris submitted a “motion for discovery” under his petition’s case number

. Fremgen did not record a separate docket entry for th e motion, which Morris admits had nothing to do with his petition. Later, t he state appellate court denied Morris’s petition on the merits. It explained that , after consider ing the “numerous other documents in support of the petition , ” it was unclear what relief Morris sought

— “much less what plain legal duty he believes was viola ted, and by what official.”

The s econd litigation loss involved a case that Morris filed in the Wisconsin Supreme Court . After Morris lost his petition for mandamus in the appellate court, he filed a n action in the state s upreme c ourt , us ing t he same case number as the denied petition . Though Morris intend ed the new petition to invok e that court’s original jurisdiction , Fremgen’s office docketed the request as a “petition for review

. ” Morris told Fremgen that he was not seeking review of th e appellate court’s decision, but wanted to commence an original action. Fremgen did not re

- docket the case. T he state

s upreme c ourt considered the petition and denied it on the merits.

The t hird loss concerns o ther petitions for writs of mandamus that Morris filed in state appellate court w hile his first petition was pending

. These petitions restated the allegations of his first petition and ask ed the court of appeals to address his “ motion for discovery

. ” Concerned that Fremgen had not docketed these properly, Morris wrote to the Chief Justice of the Wisconsin Supreme Court . The Justice forwarded the letter to Fremgen , who responded that his documents had been either reviewed by the court ofNo. 17

- 3074 Page 3

appeals, constr ued as part of his petition for review to the s upreme c ourt , or w ere docketed without further action because they were filed after his case had been closed.

Morris accuses two other state employees of imped ing his access to the court s

. He faults David Rice , the assistant attorney general who was counsel f or the state i n Morris’s petitions , for fail ing to ensure that his documents were docketed

. He also alleges that Tammy Dickman , who works where Morris is impri soned , failed to mail his petitions.

The district court dismissed Morris’s suit in two phases. After screening his amended complaint, t he court dismissed the claims against Rice , reasoning that “Rice had no duty to ensure [Morris’s] filings were made.” Fremgen and Dickman later moved to dismiss the suit. Morris opposed the motion to dismiss and asked the court to recruit counsel for him

. See 28 U.S.C. § 1915(e)(1). He argued that, although he was “capable” of doing “his own legal research” and cou ld “prepare his own motions and [understood] the processes,” he needed counsel to file his documents with the court. The court denied Morris’s request . It also ruled that the Eleventh Amendment barred Morris’s claims against the defendants in their officia l capacities , the complaint failed to
state an access

- to

- court claim against them personally , and the defendants were entitled to qualified immunity

. (On appeal Morris does not c halleng e the dismissal of his claims against Dickman, so we say nothing further about her. )
Turning to Morris’s appeal, we first determine that t he district court properly dismissed Rice at screening

. Morris does not accuse Rice of prevent ing him from filing documents ; rather, he alleges only that Rice did not rectify the all eged errors o f others. But a state employee who ha s not created a danger or limited a plaintiff’s ability to help himself ha s no constitutional duty to aid the plaintiff

. See DeShaney v. Winnebago Cty

. Dep’t of Soc. Serv s. , 489 U.S. 189, 196 (1989). And Morris identifies no other duty that Rice, as a lawyer for the state, owed Morris as he litigat ed against Rice’s client.

The district court also correctly dismissed Morris’s official

- capacity claim against Fremgen . Th is is effectively a claim for damages against the state and thus it is not permitted under § 1983. See Will v. Mich. Dep’t of State Police , 491 U.S. 58, 71 (1989) (a state official acting in her official capacity is not a suable “ person ” under § 1983) ;
see als o Vt. Agency of Nat. Res. v . U.S. ex rel. Stevens , 529 U.S. 765, 779

– 80 (2000) (courts
must decide statutory issues before Eleventh Amendment issues).

Morris’s personal

- capacity claim against Fremgen also fail s

. To state an

access

- to

- courts claim, a prisoner must allege that the defendant rendered the plaintiffNo. 17

- 3074 Page 4

unable “to pursue a legitimate” claim. Ortiz v. Downey , 561 F.3d 664, 671 (7th Cir. 2009) ; see also Christopher v. Harbury , 536 U.S. 403, 415 (2002). Morris fails to state a claim w ith respect to his first petition for a writ of mandamus

. He alleges that Fremgen fail ed to change the petition’s caption to reflect that Morris was targeting Fremgen and h er deputy , b ut this omission did not prevent Morris from litigating his claims in court . T he petition ’s contents alleg ed that Fremgen and the deputy clerk committed wrongs , the
state court considered all of Morris’s “numerous ” documents , and it ruled that these documents presented n o basis for relief against anyone. Thus, Fremgen did not impede Morris ’s access to the court

. The same is true of Morris’s allegation th at Fremgen mis docketed his petition for original jurisdiction in the state supreme court as a petition for review

. Regardless of the docket ing label , t he high court asses sed the petition’s contents and ruled on it. S o again, Fremgen did not block Morris from court.

Morris’s contentions that Fremgen did not properly docket other documents that he filed also f ail to state an access

- to

- courts claim . Morris first argues that Fremgen impeded his attempts to litigate his petitions because she never separately docketed his

“ motion for discovery

. ” Yet Morris has not alleged , with respect to his petitions , that his motion presented a “potentially meritorious challeng e

. ” See Marshall v. Knight , 445 F.3d 965, 968 (7th Cir. 2006)

. To the contrary, he admit s that the motion had nothing to do with his petition s . Thus , once again Morris ’s own acknowledgments defeat his claim that misdocketing harmed hi s petitions. Moreover, as mentioned above, in denying his first petition, the appellate court said that it considered Morris’s “numerous other documents

. ” S o the court’s review of his submissions , no matter how Fremgen d ocketed them, would have included the motion

. Likewise, Fremgen’s alleged errors in misdocketing Morris’s other petitions also do not s upport a claim . T he se petitions merely reasserted the claims in Morris’s first petition , which th e state court had already considered and rejected , or they asked the court to address his irrelevant “motion for discovery

. ” Thus, the errors did not harm Morris ’s ability to litigate meritorious claims

. See Eichwedel v. Chandler , 696 F.3d 660, 673 (7th Cir. 2012) (access

- to

- court claim failed where prisoner did not identify “any nonfrivolous, arguable underlying claim” he was prevented from bringing ) (internal quotation marks omitted).
Finally, we do not disturb the district court’s denial of Morris’s motion for recruitment of counse l because Morris cannot demonstrate prejudice

— i.e., a reasonable likelihood that counsel would have made a difference in the case’s outcome

. See Pruitt

v. Mote , 503 F.3d 647, 65 9

– 60 (7th Cir. 2007) (en banc)

. Morris wanted an attorney to help file his documents with the district court and to obtain copies of his state

- court filings

. But the district court accepted all documents that Morris submitted, and (as he admits)No. 17

- 3074 Page 5

Morris was abl e to explain in his pleadings the content s of his state

- court documents

. Se e Tidwell v. Hicks , 791 F.3d 704, 709 (7th Cir. 2015)

. T h us , Morris cannot identif y what a lawyer could have done to salvage any of his legally deficient claims.
We have considered Morris’s remaining arguments, and none has merit.

AFFIRMED