# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 13, 2020 *
Decided April 1 , 2020

Before

FRANK H. EASTERBROOK

, Circuit Judge

I LANA D IAMOND ROVNER, Circuit Judge

AMY C. BARRETT

, Circuit Judge

No. 1 9

- 3010

CONNAN D. JOHNSON

, Plaintiff

- Appel lant

,

v

.

SHERI PIONTEK and BROWN COUNTY JAIL

, Defendant s

- Appell ee s

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

.

No. 19

- C

- 1158

William C. Griesbach

, Judge

.

O R D E R

While confined in the Brown County Jail in Wisconsin

, Connan Johnson requested a hearing transcript from court reporter Sheri Piontek of the Brown County

Circuit Court

. Johnson was dissatisfied with how long the transcript took to reach him

, and he believed it was inaccur ate
, so he sued Piontek and the jail. The district court
dismissed Johnson’s complaint for failure to state a claim

. See 28 U.S.C. § 1915 A(b)(1)

.

* Defendants Sheri Piontek and Brown County Jail were not served with process and have not participated in this appeal. We have agreed to decide the 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. See 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 NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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. 1 9

- 3010 Page 2

B ecause Johnson ’s allegations do not plausibly suggest that Piontek intentionally altered the transcript or that the defendants’ actions prejudice d him in his pending litigatio n , w e affirm.
We begin by assessing the timeliness of this appeal. T he district court entered judgment on August 28, 2019, after which Johnson had 3 0 days to file a notice of appeal

. See 28 U.S.C. § 2107(b)

. Johnson signed his notice of appeal on September 18 , but
because the district court did not receive it until September 30, we ordered Johnson to explain why his appeal should not be dismissed for lack of jurisdiction. Johnson responded by filing a notarized declaration, sta ting under penalty of perjury that he
had placed his notice of appeal in the prison’s internal mail system with prepaid postage on September 21

.
Based on the declaration, we conclude that his appeal is timely , and we have appellate jurisdiction . As a priso ner, Johnson benefits from the prison

- mailbox rule,
under which his notice of appeal was “filed” on the date he placed it in the institution’s internal mail system. See F ED

. R. A PP

. P . 4(c) ; Houston v. Lack , 487 U.S. 266, 275

– 76 (1988)

. A prisoner m a y invoke the rule by filing a notarized statement or sworn declaration providing the date on which the prisoner placed the filing in the prison’s internal mail system and stating that first

- class postage was prepaid. Johnson ’s statement, which is
both nota rized and a sworn declaration under 28 U.S.C. § 1746, satisfies these requirements

. And although Rule 4(c) requires prisoners to use the prison’s legal

- mail system, if it has one, Johnson further attests that his prison lacks a separate system for legal ma il. We therefore conclude that he filed his notice of appeal on September 21, six days before the deadline.
Assured of our jurisdiction, we turn to the allegations in Johnson’s operative complaint. Johnson alleged that

, to prepare for a jury trial on Decem ber 5, 2017, he requested the transcript of a March 1 5 , 2017

, hearing

. (Johnson did not provide any details about his litigation or why he needed the transcript , but Wisconsin court records
show that at the time he was defending himself in a prosecution for drug charges and requested a transcript of a hearing at which his counsel moved to withdraw

. 1 ) In October, Johnson was temporarily transferred to a different jail because of overcrowding in Brown County. He did not receive mail there and later learned that

, after Piontek had completed the transcript, she ask ed Brown County jail officials to hold

1 See W ISCONSIN C IRCUIT C OURT A CCESS , Brown County Case No. 2016CF001148

, http s ://wcca.wicourts.gov (last visited March 6 , 20 20 )

. We can take judicial notice of public court records. See Ennenga v. Starns , 677 F.3d 766 , 773

– 74 (7th Cir. 2012).No. 1 9

- 3010 Page 3

Johnson’s mail until he returned “to make sure [he] received it.” As a result, Johnson did not receive the transcript ( or other mail ) until he was transferred back on November 8

. Johnson then discovered that the transcript did not reflect “word for
word” what had been stated in court.

Johnson sued Piontek and the jail, assert ing that they violated their obligations
under Brady v. Maryland

, 373 US 83 (1963)

, and various criminal statutes prohibiting mail tampering and the destruction of records

. See 18 U.S.C. §§ 1519, 1701

, 1702;

Wis. Stat. §§ 19.45(5) and 943.392

. The district court construed Johnson’s complaint as asserting claims under 42 U.S.C. § 1983 for violations of his constitutional rights. Considering whether Johnson plausibly alleged a violation of his First Amendment right s , the district court concluded that he did not state a claim because he did not allege that the short delay interfered with his access to the courts. The court further
concluded that the alleged inaccuracies in the transcript could not establish the violation of a constitutional right because court reporters are not liable under § 198 3 for negligent errors . Finally, the court concluded that the complaint did not contain any allegations of wrongdoing by the j ail. The court therefore dismissed the complaint and assessed a strike under 28 U.S.C. § 1915(g). After the court entered judgment , Johnson filed a notice of appeal and a motion for leave to amend his complaint. T he district

court denied Johnson’s motion on the ground that Johnson’s notice of appeal had divested it of jurisdiction.
On appeal, Johnson ag ain argues that Piontek and j ai l officials violated criminal

statutes prohibiting mail tampering and the destruction of records

. But as a private citizen, Johnson cannot pursue claims under federal criminal statutes. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa , 490 U.S. 296, 306 n. 5 (1989). Nor does he have standing to prosecute the defendants for violation of Wisconsin criminal statutes. See Wis. Stat. § 968.02(3) ( providing that only a district attorney or c ircuit c ourt judge can issue criminal charges).

Johnson fares no better if we construe his complaint broadly, as the district court did, to assert claims under § 1983 for violation s of his constitutional right s. Johnson may sue for a violation of his right of access to the courts only if the defendants’ actions hindered his ability to litigate a nonfrivolous claim

, and that consequently he suffered

an actual concrete injury

. See Lewis v. Casey , 518 U.S. 343, 351 (1996); May v. Sheahan , 226 F.3d 876, 883 (7th Cir. 2000). His allegation that the jail briefly held his mail at Piontek’s request does not permit a plausible inference that he was hindered in his ability to
defend himself in his criminal prosecution

. He does not explain the significance of the transcript to his defense nor assert that he had insufficient time to prepare for trial. AndNo. 1 9

- 3010 Page 4

Johnson’s allegations reflect that Piontek tried to ensure that his transcript did not get
lost in his shuffle between jails. Further, although court reporters can be liable if they intentionally mo d i fy transcripts to deny a litigant due process, Loubser v. Thacker , 440 F.3d 439, 442 (7th Cir. 2006)

, nothing in Johnson’s allegation that the transcript did not appear “word for word

, ” n or his assertion on appeal that the transcript “did not coincide with prior proceedings of what was stated on record

, ” plausibly suggest s that Piontek intentionally altered the transcript

. Although we agree with the district co urt that Johnson ’s original complaint did not state a claim for relief, we note that the district court erred by dismiss ing it

, assessing a strike, and immediately entering judgment before granting him an opportunity to amend. C ourts should grant pro se litigants leave to amend a complaint at least once, unless it is certain from the face of the complaint that amendment would
be futile or otherwise unwarranted

. See Tate v. SCR Med. Transp. , 809 F.3d 343, 346 (7th Cir. 2015) ; Luevano v. Wal

- Mart Stores , Inc., 722 F. 3d 1014, 102 4

– 25 (7th Cir. 2013)

. “Such cases of clear futility at the outset of a case are rare.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind

. , 786 F.3d 510, 520 (7th Cir. 2015). Here, i t was
not clear from the original complaint a lone that amendment would have been futile

. Johnson alleged that the defendants withheld his legal mail for part of the month leading up to his trial , and he alleged that Piontek made alterations to the transcript but
did not describe those alterations

. I t is possible that he could have elaborated on these allegations to permit a plausible inference that the defendants’ actions interfered with his ability to prepare for trial or that Piontek inten tionally altered the transcript to disadvantage him

. Nonetheless, we affirm because Johnson’s proposed amended complaint
confirms that allowing the amendment would have been pointless

. See , e.g. , O'Boyle v. Real Time Resolutions, Inc. , 910 F.3d 338, 347 (7th Cir. 2015) (relying on proposed amended complaint, which district court did not accept, to affirm order dismissing original complaint with prejudice). In that pleading

, Johnson explains that his trial was delayed for various reasons . ( C ourt records confirm that Johnson’s trial date was delayed multiple times, both before and after December 5, 2017.) Johnson’s complaint was premised on an alleged interference with his ability to prepare for a December 5
trial that did not occur then

. S ince he received extra time to prepare for trial, his brief delay in receiving his legal mail in October did not hinder his ability to defend himself

. As for Johnson’s claim that Piontek altered court transcripts, the elaboration in his proposed amended complaint is anything but clarifying

. H e alleges that Piontek
must have altered the transcript of his March 15 hearing because it does not match whatNo. 1 9

- 3010 Page 5

was said at a different hearing in September

. More importantly, he doe s not, even after being prompted by the district court ’s order

, allege any discrepancies that might go beyond minor errors or any grounds for inferring that they could have been the product
of anything more than possible negligen ce

. Finally , because we af firm the dismissal of Johnson’s complaint for failure to state a claim, the strike that the district court assessed under 28 U.S.C. § 1915(g) stand s

. AFFIRMED