* After examining the briefs and the record, we have concluded that oral argument is

unnecessary.  Thus, the appeal is submitted on the briefs and the record.  See FED. R. APP. P.

34(a)(2)(c).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 21, 2010*

Decided November 4, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

   

No. 10‐1796

CHRIS J. JACOBS, III,

Plaintiff‐Appellant,

v.

TRACY GERBER, et al.,

Defendants‐Appellees.                 

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 08‐CV‐42

J.P. Stadtmueller,

Judge.

O R D E R

Chris Jacobs, an inmate at the Wisconsin Secure Program Facility, filed suit under 42

U.S.C. § 1983, claiming that beginning in 2007 three prison employees—Pamela Bartels,

Christine Beerkircher, and Tracy Gerber—prevented him from filing internal grievances and

denied him access to the courts.  The district court granted summary judgment first to

Bartels, finding that she had stopped working at the prison five years before the alleged

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 10‐1796 Page 2

constitutional violations occurred.  Several months later the court granted summary

judgment for Gerber and Beerkircher.  We affirm the judgment of the district court.

We first address a threshold dispute regarding the scope of this appeal.  Gerber and

Beerkircher contend that we should ignore Jacobs’s challenge to the grant of summary

judgment to Bartels because Jacobs already contested that decision with an earlier appeal.

See Jacobs v. Gerber, No. 09‐3250 (7th Cir. docketed Sept. 10, 2009) (dismissed on

November 3, 2009, for failure to pay docketing fee).  But when the district court granted

summary judgment for Bartels, that ruling was not then appealable because the claims

against Gerber and Beerkircher remained pending, and the court did not certify its ruling

for immediate appeal.  See FED. R. CIV. P. 54(b); Granak v. Cont’l Cas. Co., 977 F.2d 1143, 1144‐

45 (7th Cir. 1992).  Because we had no jurisdiction to decide the merits of Jacobs’s earlier

appeal, his prior filing does not limit the current appeal.

  

On the merits of the claim against Bartels, we can be brief.  Bartels submitted an

affidavit explaining that she could not have committed the constitutional violations that

Jacobs says started in 2007 because she stopped working at the prison in 2002.  Jacobs did

not produce any evidence to dispute Bartels’s affidavit.  Thus summary judgment in favor

of Bartels was proper.  

That brings us to Jacobs’s claims against Beerkircher.  Beerkircher was a complaint

examiner for the Inmate Complaint Review System.  Jacobs contends that she routinely

refused to process his complaints and she denied him inmate‐grievance forms.  Because 42

U.S.C. § 1997e(a) requires prisoners to exhaust administrative remedies before filing suit,

Jacobs argues that Beerkircher impaired his ability to pursue his legal claims.  In her motion

for summary judgment, Beerkircher attested that she rejected Jacobs’s complaints only

when he refused to comply with the prison’s procedures for filing complaints, and she

limited his access to complaint forms because Jacobs filed an excessive number of

noncompliant grievances.  Specifically, between May 2007 and May 2008, Beerkircher

denied over 800 of his complaints, citing repeated procedural defects in his claims.  (Over

130 of Jacobs’s complaints were accepted after he followed the proper procedures.)  Another

complaint officer reported that Jacobs improperly submitted 55 complaints in one week.

Beerkircher further explained that, because Jacobs abused the system, she restricted him to

10 grievance forms per week, but even then he could receive additional forms for issues

concerning his health or safety.  He received his 10 forms each week, except in those weeks

when he had already filed more than 10 complaints before receiving his forms.  But even the

restriction, Beerkircher said, had little effect, and the warden sent Jacobs two letters,

admonishing him for his continued violations of the grievance procedures.  In response to

this evidence from Beerkircher, Jacobs conceded that he filed even more complaints than

those described by Beerkircher, often submitting them on improper forms.  He resorted to
No. 10‐1796 Page 3

improper forms because Beerkircher did not always provide him with the promised

complaint forms each week, but he did not dispute her reasons for restricting his use of the

system.

The district court granted Beerkircher’s motion because Jacobs had not submitted

evidence that Beerkircher had impeded any nonfrivolous lawsuits.  Jacobs’s “conclusory

allegations” that he “had lawsuits dismissed” were not enough because, of all of the suits

Jacobs litigated during 2007 and 2008, none were dismissed for failure to exhaust.

We review the district court’s grant of summary judgment to Beerkircher de novo,

drawing all reasonable inferences in favor of Jacobs.  See Crews v. City of Mt. Vernon, 567

F.3d 860, 864 (7th Cir. 2009).  To establish his claim that Beerkircher denied him access to the

courts, Jacobs must show that, by preventing him from filing grievances to exhaust his

administrative remedies, Beerkircher impeded his litigation of a nonfrivolous legal claim.

See Lewis v. Casey, 518 U.S. 343, 352‐53 (1996); Pratt v. Tarr, 464 F.3d 730, 732 (7th Cir. 2006);

Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004).  Furthermore, the exhaustion of

administrative remedies requires prisoners to follow the procedures established by the state

for processing grievances.  Pozo v. McCaughtry, 286 F.3d 1022, 1024‐25 (7th Cir. 2002).  Based

on the mountain of evidence that Beerkircher submitted showing that Jacobs regularly

violated these procedures, coupled with Jacobs’s own concession that he frequently filed

excessive complaints on improper forms, it was Jacobs, not Beerkircher, who impeded his

litigation.  In any event, Jacobs offered no evidence that any of his cases were dismissed for

failure to exhaust, so Jacobs has not shown an actual injury.

Last, we come to Jacobs’s claims against Gerber.  Jacobs argues that Gerber denied

him access to the courts by interfering with his use of Wisconsin’s loan program for inmate

litigation.  Wisconsin’s program provides indigent inmates up to $200 each year for certain

litigation‐related expenses, such as paper, photocopies, and postage.  See WIS. ADM. CODE

§ 309.51.  To use the program, inmates must complete a loan application each year, and, if

approved, they can access the funds by submitting disbursement requests to the prison’s

business office.  Inmates are limited to one disbursement request per week to ensure that the

business office is not overburdened.  Under the program, participating inmates receive

paper specially marked as “legal correspondence,” which they may use only for

“correspondence to courts, attorneys, parties in litigation, the Inmate Complaint Review

System, or the parole board.” § 309.51.  Apart from the program, all inmates also receive a

weekly allowance of writing materials and postage, which can be used for any purpose.

   

Jacobs took advantage of the loan program in 2007 and 2008 to subsidize several

suits he filed in federal court.  But, he maintains, Gerber frustrated his litigation by

improperly denying many of his requests for copies, supplies, and postage, and by
No. 10‐1796 Page 4

suspending his loan privileges three times after wrongly accusing him of misusing his legal

correspondence materials.  He insists that he used the legal correspondence materials for

letters that were “legal in nature.”  In her motion for summary judgment, Gerber answered

that, as a financial specialist in the business office, she found that Jacobs refused to follow

the prison’s procedures for submitting disbursement requests, repeatedly used the materials

obtained through the program for unauthorized purposes, filed excessive requests with the

business office, and quickly exhausted his available loan funds each year because of his

frequent litigation.  Gerber warned Jacobs that his misuse of the loan program would lead

to a suspension of his privileges, and notified him each time his abuses had finally crossed

the line.  The district court granted Gerber’s motion, finding that Jacobs had again failed to

offer evidence of an actual injury resulting from Gerber’s alleged misconduct.

Unlike his claims against Beerkircher, Jacobs identifies two cases when Gerber’s

actions supposedly harmed his ability to pursue his legal claims.  But neither case supports

an actual injury.  In one case Jacobs argues that a court dismissed his case after Gerber had

denied his request to copy medical records.  But that case was dismissed because Jacobs

refused to comply with the court’s order to provide defendants with a signed authorization

to review his medical records.  Jacobs contends that, in the other case, Gerber refused to

provide him with postage to mail his notice of appeal, and his appeal was later dismissed as

untimely.  But Jacobs has not explained why that earlier appeal had any merit, and without

such an explanation, we cannot say that he was injured by the dismissal, even if Gerber’s

actions interfered with his ability to file a notice of appeal.  See Tolefree v. Cudahy, 49 F.3d

1243, 1244 (7th Cir. 1995).  In any event, Jacobs is not constitutionally entitled to a state‐

supplied subsidy to prosecute his civil suits and file his appeals.  United States v. Kras, 409

U.S. 434 (1973); Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003); Lewis v. Sullivan, 279

F.3d 526, 528 (7th Cir. 2002).  Because Wisconsin is under no constitutional duty to maintain

its inmate‐loan program, the prison may condition the receipt of funds on acceptable

behavior.  See Gaines v. Lane, 790 F.2d 1299, 1308 (7th Cir. 1986).  Although Jacobs may

disagree with those conditions, Gerber’s enforcement of the prison’s procedures does not

itself deny Jacobs access to the courts.

  

Jacobs also argues that Gerber seized his outgoing legal mail in violation of his rights

under the First Amendment.  But the alleged violation concerns Gerber’s refusal to supply

postage for Jacobs’s notice of appeal.  Although the district court analyzed this as a separate

claim for interference with his legal mail, Jacobs’s arguments are better understood as the

access‐to‐court claim that we have rejected.

Finally, we advise Jacobs that he has accrued more than three strikes under the

Prison Litigation Reform Act.  See 28 U.S.C. § 1915(g).  He incurred two strikes for filing

frivolous suits in district court.  See Jacobs v. Prison Record Dep’t, No. 3:10‐cv‐00140 (E.D. Wis.
No. 10‐1796 Page 5

May 7, 2010) (dismissing state‐law claim for lack of subject‐matter jurisdiction); Jacobs v.

Frank, No. 2:07‐cv‐00055 (E.D. Wis. Apr. 23, 2007) (dismissing complaint for failure to state a

claim).  He earned another strike for taking a frivolous appeal from the second dismissal, see

Jacobs v. Huibregtse, No. 08‐1804 (7th Cir. July 22, 2008) (dismissed for lack of appellate

jurisdiction), and a fourth strike for his earlier frivolous appeal in this case, which was filed

before the district court had entered final judgment, see Jacobs v. Gerber, No. 09‐3250 (7th Cir.

Nov. 3, 2009).  In any future case, Jacobs must 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).  

AFFIRMED.