In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-1957

DONALD A. LEHN,

Plaintiff-Appellant,

v.

MICHAEL L. HOLMES, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99 C 919—G. Patrick Murphy, Chief Judge.

____________

ARGUED MAY 13, 2003—DECIDED APRIL 14, 2004

____________

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Donald Lehn knows

a lot about the ill effects of exposure to second-hand

tobacco smoke. He has a Ph.D. in biochemistry and is a

former Resident Research Assistant in the Laboratory of

Molecular Carcinogenesis in the Division of Cancer Etiology, National Cancer Institute, which is affiliated with the

National Institutes of Health, in Bethesda, Maryland.

Lehn’s current interest in smoke is, however, personal

rather than professional. He is currently serving time in the

Illinois Department of Corrections (IDOC), and he has sued
2 No. 01-1957

to challenge both certain IDOC practices that allegedly are

denying him his right of access to the courts and IDOC

policies that tolerate excessively high levels of environmental tobacco smoke (ETS) in the state’s prisons. Lehn’s pro se

complaint was dismissed by the district court because the

judge believed his claims were either rendered moot after

Lehn was transferred to a different prison facility or were

unripe for adjudication. In the alternative, the court

granted the prison officials’ motion to dismiss Lehn’s accessto-courts claim for failure to state a claim under FED. R.

CIV. P. 12(b)(6). We agree with Lehn that his access claim

is ripe for judicial consideration and that both the access-tocourts and the ETS parts of his complaint state claims for

which relief may be granted. Therefore, we reverse and

remand this case for further proceedings.

I

Lehn has been incarcerated in the State of Illinois since

January 1996. To date, he has been housed in at least three

correctional facilities: the Pontiac Correctional Center, the

Big Muddy River Correctional Center, and the Graham

Correctional Center. Lehn was incarcerated at Big Muddy

River for four years, during which time he filed this complaint. While his complaint was pending before a magistrate judge, in August 2000, he was transferred to Graham, where he is currently incarcerated.

While Lehn was at Big Muddy River, he repeatedly asked

to be assigned to a cell with a non-smoking cellmate, but his

requests were denied. Lehn complained that exposure to his

cellmates’ tobacco smoke caused him to suffer headaches

and nausea. His transfer to Graham accomplished nothing,

from this standpoint. Once again, he was housed with a

smoking cellmate despite his request for a non-smoker. In

an affidavit, Lehn attested that during the first five and

one-half months of his stay at Graham, he had a non-
No. 01-1957 3

smoking cellmate for only two and one-half days. Throughout this time, Lehn communicated his strenuous objection

to what he perceived as an IDOC-wide policy concerning the

use of tobacco products and the exposure of inmates to ETS.

He complained that this exposure to second-hand smoke

“threatens the plaintiff’s future health and causes the

plaintiff to suffer from continual [sic] smoking related

effects—headaches and burning eyes.”

Smoke was not Lehn’s only problem, however. In October

1996, Lehn received copies of two Maryland arrest warrants

dated October 20, 1995, and October 11, 1996. The first

arrest warrant was also lodged as a detainer for Lehn’s

continued detention on the Maryland charges. Then, on

June 30, 1997, Deputy Maryland State’s Attorney Matthew

Campbell issued a request for temporary custody over Lehn

to Jack Hartwig, who at the time was the warden of Big

Muddy River. This request was made pursuant to Article

IV(A) of the Interstate Agreement on Detainers, in order to

bring Lehn to trial in Maryland. (The Interstate Agreement

on Detainers is an interstate compact among 48 states. It

establishes standard procedures to help states resolve

outstanding criminal charges against prisoners who are

incarcerated in a different state. See New York v. Hill, 528

U.S. 110, 111 (2000); see also United States v. Ross, 243

F.3d 375, 375 n.2 (7th Cir. 2001).) The request for temporary custody states that Lehn “is under indictment in the

County of Montgomery,” Maryland. The record does not

contain a response to this request for temporary custody

from Warden Hartwig.

In response to the Maryland arrest warrants, Lehn filed

three motions in Maryland for the appointment of counsel.

The first was filed in July 1997, and the last was filed in

January 2001. His efforts were unavailing: Maryland neither appointed a lawyer for him nor did it even respond to

any of his requests. In his final letter to the Montgomery

County State’s Attorney, Lehn explained that he had
4 No. 01-1957

learned second-hand that his case might not be prosecuted

by the County. He asked for confirmation of this rumor and

explained that he hoped that Maryland would withdraw the

warrant against him if it was not going to prosecute him.

Critically for our purposes, Lehn claimed that the outstanding warrant caused him to receive a higher security classification within Illinois’s correctional system. According to

Lehn, this higher security classification also kept him from

getting a job in the prison industries program and affected

his housing assignments. 

Lehn’s initial complaint contained five counts, three of

which were dismissed by the district court under the mandatory screening process for prisoner lawsuits contained in

28 U.S.C. § 1915A. Lehn does not appeal the dismissal of

these three counts. The two surviving counts focus on

Lehn’s fundamental right of access to the courts and his

right to conditions of confinement that do not violate the

minimum standards set by the Eighth Amendment—as

applied here, his right to an environment that is not filled

with dangerous levels of ETS. The defendants filed a motion

to dismiss Lehn’s access-to-courts count. The case was

referred to a magistrate judge, who recommended that the

district court deny the motion to dismiss and suggested that

the court instead request additional briefing by the parties

addressing whether Lehn’s transfer to Graham rendered his

access-to-courts and Eighth Amendment claims moot.

The district court rejected the magistrate judge’s recommendations and entered an order dismissing Lehn’s remaining two claims. It rejected the ETS claim first because

it concluded that the claim became moot when Lehn was

transferred to Graham, and in the alternative for failure to

state a claim under FED. R. CIV. P. 12(b)(6). The district

court also declined to exercise jurisdiction over Lehn’s

access-to-courts claim because the judge believed the claim

was unripe. Alternatively, the court held that Lehn’s complaint failed to state a claim under FED. R. CIV. P. 12(b)(6)
No. 01-1957 5

for violation of his right of access to the courts. With the

assistance of counsel appointed by this court, Lehn appeals

the dismissal of his complaint.

II

A

The Supreme Court has long recognized a prisoner’s fundamental right of access to the courts. Bounds v. Smith, 430

U.S. 817, 821 (1977); see also Lewis v. Casey, 518 U.S. 343,

350 (1996). As this court has noted in the past, “[w]ithout

this right, all other rights a prisoner may possess are

illusory.” Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir.

1983). But the right of access to the courts is not an unlimited one; it assures only “meaningful access to the courts.”

Bounds, 430 U.S. at 823; see also In re Chapman, 328 F.3d

903, 905 (7th Cir. 2003). Moreover, the right is “ancillary to

the underlying claim, without which a plaintiff cannot have

suffered injury by being shut out of court.” Christopher v.

Harbury, 536 U.S. 403, 415 (2002). In other words, the right

of access to the courts is tied to and limited by a prisoner’s

right to “vindication for a separate and distinct right to seek

judicial relief for some wrong.” Id. 

Lehn raises five specific complaints in connection with his

general access-to-courts claim: (1) Illinois’s denial of access

to Maryland legal materials has hampered his ability to

respond to the pending Maryland criminal charges; (2) his

rights are violated by the restrictions on the amount of time

he may spend in the prison library; (3) the restrictions on

the quantity of photocopied legal materials he may store in

his prison cell are also unlawful; (4) he has received

inadequate legal assistance from the prison library staff,

which resulted in the filing of a premature appeal in an

unrelated case; and (5) the prison’s denial of his request to

purchase a laptop computer and CD-ROM materials has

interfered with his ability successfully to litigate his ETS
6 No. 01-1957

claim. The district court dismissed the access claim in its

entirety. With respect to the Maryland legal materials, the

court concluded that the claim was either not ripe for

judicial review, or, alternatively, that it failed to state a

claim on which relief may be granted. We review this

decision de novo. See Metro. Milwaukee Ass’n of Commerce

v. Milwaukee County, 325 F.3d 879, 881 (7th Cir. 2003)

(reviewing dismissal on ripeness grounds de novo); Ortloff

v. United States, 335 F.3d 652, 655 (7th Cir. 2003) (reviewing dismissal under FED. R. CIV. P. 12(b)(6) de novo). In this

appeal, Lehn (rightly) focuses only on his right of access to

the Maryland legal materials; we similarly limit our

discussion, as none of the rest of his arguments has any

merit.

We should first say a word about why Illinois is the

proper defendant in this case, given the fact that Lehn

is seeking Maryland legal materials he needs to attack a

Maryland indictment and warrants. Why is Maryland not

the only proper defendant? Once the indictment was returned there, Lehn’s Sixth Amendment right to counsel

attached. See, e.g., Fellers v. United States, 124 S.Ct. 1019,

1022 (2004). It was and remains Maryland’s responsibility

to ensure that this right is respected. Yet Lehn asked

Illinois to provide those legal materials. We must consider,

therefore, how (if at all) Illinois has become implicated in

the Maryland proceedings. 

 In most cases where prisoners seek out-of-state materials, they are trying to attack, either directly or collaterally,

a conviction from that state. The proper defendant in those

cases is the state in which the prisoner was convicted. See,

e.g., Boyd v. Wood, 52 F.3d 820 (9th Cir. 1995); Clayton v.

Tansy, 26 F.3d 980 (10th Cir. 1993); Demps v. Florida, 696

So. 2d 1296 (Fla. Dist. Ct. App. 1997); Salstrom v. Arizona,

714 P.2d 875 (Ariz. Ct. App. 1986). If the two states are

parties to the Interstate Corrections Compact (ICC), the

state housing the inmate might also be a proper defendant
No. 01-1957 7

in an access-to-courts claim because it is acting as an agent

of the sending state. See 730 ILCS 5/3-4-4 (Interstate

Corrections Compact, art. IV(a)); MD Code § 8-605 (same).

The ICC allows receiving and sending states to allocate

burdens between themselves for the care of inmates and affords a prisoner convicted out-of-state with the same rights

as a prisoner convicted in-state. Lehn, however, is serving

a sentence for an Illinois conviction only; he has not yet

been convicted of any crime in Maryland, and so he is not

yet subject to the ICC.

More importantly, Lehn’s case is different because his

focus is on the way that Illinois is using the mere fact of a

Maryland indictment (not, we stress, a conviction after full

court proceedings) in a way adverse to his interests. Cf.

Petrick v. Maynard, 11 F.3d 991, 995 (10th Cir. 1993)

(inmate sought out-of-state legal materials in order to

challenge out-of-state convictions that were relied on to

enhance the sentence that the prisoner received in the state

in which he was incarcerated). We have no quarrel with the

proposition that if Lehn were seeking to attack the Maryland proceedings for his own purposes, and faced no

potential harm from those outstanding indictments

in Illinois, then he would be required to pursue his claim

against the responsible Maryland authorities. But, to reiterate, that is not the gist of his complaint. He asserts, for

example, that Illinois is presently using the fact of the

Maryland indictment to increase his security classification

while he is incarcerated in Illinois. Maryland is apparently

doing nothing with the case. Illinois cannot take advantage

of Maryland’s desuetude to impose legal burdens on Lehn,

without giving Lehn an opportunity to challenge the basis

for Illinois’s action. This means that Illinois faces a choice:

it may either refrain from taking Lehn’s legal status in

Maryland into account in his security classification, qualifications for prison jobs, and other concrete ways, or it may

rely on the Maryland accusations. If it takes the former
8 No. 01-1957

course, it is under no obligation to furnish Maryland legal

materials to Lehn; if it takes the latter course, it must give

Lehn the tools with which to challenge the Maryland

indictment. Lehn has alleged that IDOC is presently using

the Maryland indictment adversely to him. Because the

case was dismissed under Rule 12(b)(6), we must accept

that allegation. If, of course, the state contests that fact, the

matter can be explored before the district court. But for

now, the Illinois defendants are proper parties in this case.

We turn next to the district court’s conclusion that Lehn’s

access claim is not ripe for judicial review. Ripeness

doctrine is based on the “central perception . . . that courts

should not render decisions absent a genuine need to resolve a real dispute.” 13A CHARLES ALAN WRIGHT, ARTHUR

R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE &

PROCEDURE § 3532.1, at 114 (2d ed. 1984). Like the related

doctrine of mootness, ripeness is grounded in both Article

III and prudential concerns. Daniels v. Area Plan Comm’n

of Allen County, 306 F.3d 445, 452 n.3 (7th Cir. 2002);

Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992).

“Cases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual,

concrete conflicts.” Hinrichs, 975 F.2d at 1333.

The Supreme Court has announced two factors that determine whether an issue is ripe for judicial consideration.

First, the issue on which review is sought must be fit for

judicial decision. Texas v. United States, 523 U.S. 296, 300-

01 (1998) (quoting Abbott Labs., 387 U.S. at 149); see also

Hinrichs, 975 F.2d at 1333. Second, courts must take into

account any “ ‘hardship to the parties of withholding court

consideration.’ ” Texas, 523 U.S. at 301 (quoting Abbott

Labs., 387 U.S. at 149); see also Hinrichs, 975 F.2d at 1333.

The district court dismissed Lehn’s access claim after

finding it unripe for judicial review primarily because the

court did not believe that Maryland was actively prosecut-
No. 01-1957 9

ing its case against Lehn. The court assumed, in light of the

apparent dormant nature of the Maryland case, that Lehn

would not suffer any hardship if the court refused to

exercise jurisdiction over his access claim. It came to this

conclusion despite the fact that the record before it showed

that Lehn was indicted in Maryland while he was in custody in Illinois and that in 1997 Maryland sought Lehn’s

temporary transfer pursuant to the Interstate Agreement

on Detainers, in order to bring him to trial in Maryland. 

We cannot agree that the apparent lack of action in the

Maryland proceeding renders Lehn’s claim unripe for judicial review. As far as we can tell, there is still a pending

indictment against Lehn in Maryland. Although Lehn has

not been prosecuted under this indictment, we have no indication that it was dismissed. At oral argument, we asked

about the status of the Maryland proceedings. Counsel for

Lehn reiterated that his client never received a response to

his requests for appointed counsel. The Assistant Attorney

General for the State of Illinois took the position that

because nothing has happened in the Maryland proceedings

since 1997, Maryland is not going forward with its case

against Lehn. The Assistant Attorney General further

asserted that she had information not contained in the

record that the Maryland prosecutor’s records indicated

that Lehn was never served with a warrant in this case.

But, apart from the fact that we cannot stray outside the

record, this is beside the point: Lehn was indicted on

various charges in the state of Maryland. This indictment

has never been dismissed, and unless or until it is, Lehn’s

claim is ripe for judicial review. As we noted earlier, the

hardship that Lehn is suffering without access to Maryland

legal materials is that he has no effective way to challenge

the outstanding indictment against him.

This brings us to the merits of Lehn’s access claim, which

the district court dismissed with prejudice in the alternative under FED. R. CIV. P. 12(b)(6). As we have already
10 No. 01-1957

noted, the law requires only “ ‘[m]eaningful access’ to the

courts.” Bounds, 430 U.S. at 823. It does not require any

specific resources such as a law library or a laptop with a

CD-ROM drive or a particular type of assistance. Lewis, 518

U.S. at 351. Instead, a prisoner must show that a prison’s

policy actually hampered her pursuit of a legal claim. Id.;

see also Bounds, 430 U.S. at 823; Ortloff, 335 F.3d at 656.

To this end, we have established a two-part test for accessto-court claims. “First, the prisoner must prove that prison

officials failed to assist in the preparation and filing of

meaningful legal papers. . . . Second, he must show some

quantum of detriment caused by the challenged conduct of

state officials.” Brooks v. Buscher, 62 F.3d 176, 179 (7th Cir.

1995) (internal quotation marks and citations omitted). 

In order to avoid dismissal under Rule 12(b)(6), Lehn

therefore had to allege that he had a non-frivolous legal

claim that was frustrated or impeded by IDOC’s failure to

assist him in the preparation and filing of meaningful legal

papers and that he was harmed by IDOC’s action (or lack

thereof). As usual, we ask whether his allegations would

entitle him to relief based on the establishment of any

conceivable set of facts in support of his claim. Sanville

v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). The

district court dismissed Lehn’s complaint finding that the

very fact that two of the five counts in his complaint survived § 1915A screening meant that Lehn was not impeded

in his ability to pursue his legal claims by IDOC’s policies.

Finding that Lehn had not suffered any harm, the district

court believed that his access claim failed to meet the concrete injury test and dismissed it with prejudice. 

This takes too narrow a view of Lehn’s claims. First, the

district court was focusing on Lehn’s ability to litigate in

the Illinois action, while Lehn was addressing his ability to

defend himself in Maryland’s courts. It also conflates two

different questions: whether a complaint can survive the
No. 01-1957 11

initial screening required by the Prison Litigation Reform

Act of 1996 (PLRA), 28 U.S.C. § 1915A(b)(1), and whether

a prisoner has access to sufficient legal resources to enable

her to participate meaningfully in her lawsuit. The district

court thought that because Lehn had stated a non-frivolous,

non-malicious claim concerning his access to courts, it

followed that his right of access to the courts was not

impeded. The implication of the court’s conclusion for

prisoners is that all access-to-courts claims that survive

§ 1915A screening will necessarily fail to state a claim

for abridgement of that right. This plainly goes too far. After all, a judge may recognize a meritorious claim that is

presented only in skeletal form, or that (as here) relates to

access to different courts, or access with respect to a different proceeding in the same courts. The claim itself will

need to be fleshed out and properly developed, even though

it survived the § 1915A screening process. 

Although we disagree with the district court’s analysis

of Lehn’s access claim, there is an additional hurdle that

Lehn faces before he can go forward with his complaint.

Neither the parties nor the district court specifically addressed whether Lehn’s desire to challenge his Maryland

arrest warrant or indictment is the type of legal action that

the fundamental right of access to the courts protects. In

Lewis, the Supreme Court made clear that the right

of access to the courts is limited to certain types of litigation. As the Court explained,

Bounds does not guarantee inmates the wherewithal to

transform themselves into litigating engines capable of

filing everything from shareholder derivative actions to

slip-and-fall claims. The tools it requires to be provided

are those that the inmates need in order to attack their

sentences, directly or collaterally, and in order to

challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of
12 No. 01-1957

the incidental (and perfectly constitutional) consequences of conviction and incarceration.

518 U.S. at 355. Lehn, who has not been tried, convicted or

sentenced in Maryland, is obviously not in a position to

bring a direct or collateral attack on what is not yet even a

conviction. But it is logical to conclude that a prisoner has

just as much of an interest in a criminal indictment, which

necessarily precedes a criminal conviction, as she does in

the actual sentence or conviction that may result from that

indictment. As long as Lehn is suffering present consequences in the “conditions of his confinement” from the

pendency of the Maryland proceedings, he should not have

to wait to see if Maryland actually intends to bring him to

trial (if it is not too late to do so). He is entitled to challenge

the indictment against him right now. Cf., Johnson by

Johnson v. Brelje, 701 F.2d 1201, 1207 (7th Cir. 1983)

(recognizing right of access to courts for pretrial detainees),

abrogated on other grounds by Maust v. Headley, 959 F.2d

644, 648 (7th Cir. 1992). 

The next question is whether IDOC’s policies have denied

him access to the basic materials that he needs in order to

move his challenge forward. It is clear that they have.

IDOC’s refusal to provide Lehn with access of any kind to

Maryland legal materials is equivalent to a type of injury

that the Supreme Court suggested is actionable in Lewis. In

that case, the Court intimated that a prisoner would state

a valid claim if “he had suffered arguably actionable harm

that he wished to bring before the courts, but was so

stymied by inadequacies of the law library that he was

unable even to file a complaint.” 518 U.S. at 351. Lewis

makes clear that the deficiencies in the prison library—the

complete lack of Maryland legal materials— have deprived

Lehn of the opportunity to mount a state law attack against

the indictment, which is affecting his conditions of confinement. Lehn’s situation is the defense-side equivalent to the

more common one in which a prison’s library is so inade-
No. 01-1957 13

quate that it deprives a prisoner of the opportunity to file a

complaint. The fact that Lehn seeks out-of-state legal

materials is irrelevant. The inquiry must be whether a

particular prisoner is being denied access to those materials

(from the relevant jurisdiction) that are necessary to launch

an initial attack. See, e.g., Caldwell v. Miller, 790 F.2d 589,

606-07 (7th Cir. 1986); Corgain, 708 F.2d at 1250. Since we

find that Lehn possesses a right of access to the courts with

regard to his Maryland indictment, IDOC must either

clearly renounce any reliance on that proceeding or find

some way to provide Lehn with access to the essential legal

materials he needs.

This leaves two remaining points. On remand the district

court will need to look into the status of the proceedings

against Lehn in Maryland. If in fact Maryland has dismissed the outstanding indictment and withdrawn the

warrant for Lehn’s arrest, then there is no longer a need for

Lehn to access Maryland legal materials, and the court

should dismiss his claim as moot. If, however, Lehn is still

under indictment in Montgomery County, then his claim is

not moot and IDOC can decide how it wishes to proceed,

consistently with this opinion.

B

We turn now to Lehn’s ETS claim. The district court

decided that this part of the case became moot when Lehn

was transferred from Big Muddy River to Graham. In addition to deciding the question of mootness, we independently asked the parties to brief whether Lehn has standing

to challenge IDOC’s “practice of housing nonsmoking

inmates in the same cell with smoking inmates.” 

The Supreme Court has observed that the doctrines of

standing and mootness address different aspects of a federal court’s jurisdiction to hear a case. As Justice Ginsburg

explained in Friends of the Earth, Inc. v. Laidlaw Environ-
14 No. 01-1957

mental Services, Inc., 528 U.S. 167 (2000), standing ensures

that federal courts devote their time and attention “to those

disputes in which the parties have a concrete stake,”

whereas mootness often comes into play after a case has

been litigated for a number of years, but no longer concerns

a live dispute. Id. at 191-92. 

Like the doctrine of ripeness, standing is grounded in

both Article III and prudential concerns. See 13 CHARLES

ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,

FEDERAL PRACTICE & PROCEDURE § 3531, at 345 (2d ed.

1984); see also Friends of the Earth, 528 U.S. at 178-79. The

threshold inquiry from a constitutional perspective is

whether the case presents an actual case or controversy for

the court to resolve. City of Los Angeles v. Lyons, 461 U.S.

95, 101 (1983). Yet even when that condition is met, for

prudential reasons a court may decline to exercise jurisdiction “if as a matter of judicial self-restraint it seems wise

not to entertain the case.” 13 WRIGHT, MILLER & COOPER,

FEDERAL PRACTICE & PROCEDURE, § 3531, at 345 (2d ed.

1984).

We see no reason to refuse to exercise jurisdiction over

Lehn’s ETS claim as a matter of judicial restraint; therefore

we need only assure ourselves that Article III’s standing

requirements are met. To establish Article III standing,

Lehn must show:

(1) [he] has suffered an “injury in fact” that is (a)

concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and

(3) it is likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision. 

Friends of the Earth, 528 U.S. at 180-81. Lehn’s complaint

alleges a concrete, particularized, actual injury that is directly traceable to IDOC’s system-wide practice of housing
No. 01-1957 15

non-smoking inmates with smokers. His injury would be

redressable by a decision forcing IDOC to change its

practice. At this juncture in the proceedings, questions of

proof are premature: Lehn’s complaint states that IDOC’s

practice threatens his future health and causes him presently to suffer from headaches and burning eyes. This is the

type of injury that the Supreme Court found cognizable in

Helling v. McKinney, 509 U.S. 25, 35 (1993) (recognizing the

possibility of an Eighth Amendment claim based on future

serious health problems because of a prison smoking

policy). Lehn does not have to allege anything further in

order to satisfy Article III’s standing requirements. 

Implied in this analysis is an interpretation of Count 4 of

Lehn’s complaint. When he filed his pro se complaint, Lehn

was an inmate at Big Muddy River and had been there for

nearly three years. Nevertheless, he drafted his complaint

to state a claim against IDOC for its smoking policies; he

did not limit himself to an allegation that the practice of

housing non-smoking inmates with smokers was unique to

Big Muddy River. Furthermore, Lehn named both Michael

Holmes, the Big Muddy River warden, and Donald Snyder,

the director of IDOC, as defendants. This too suggests that

Lehn, as master of his own complaint, sought relief from a

system-wide policy. Finally, after the magistrate judge

recommended that the district court seek additional

briefing from the parties on the mootness question, Lehn

filed objections with the district court that focused directly

on the question of mootness, asserting that his complaint

named defendants Donald Snyder and Michael Holmes in

their official capacities, seeking permission to substitute the

current Graham warden for Holmes, and reiterating that he

was challenging what he alleged were system-wide policies

promulgated by IDOC. In his objections to the magistrate

judge’s recommendations, Lehn also alleged that he continued to suffer from exposure to ETS at Graham. 
16 No. 01-1957

The district court disposed of his ETS claims on the basis

of mootness by construing the complaint as seeking injunctive and declaratory relief only with regard to Big

Muddy River, thereby ignoring Lehn’s efforts to challenge

the policy at the statewide level. For this reason the court

believed Lehn’s claim was “necessarily rendered moot by

Plaintiff’s transfer to a different institution.” Defendants,

in urging that we affirm the district court, believe that the

decision in Higgason v. Farley, 83 F.3d 807 (7th Cir. 1995)

(per curiam), helps them. But that case stands only for

the uncontroversial proposition that when a prisoner who

seeks injunctive relief for a condition specific to a particular

prison is transferred out of that prison, the need for relief,

and hence the prisoner’s claim, become moot. Id. at 811.

Higgason did not confront the issue raised in Lehn’s case:

whether a prisoner who seeks relief from a condition that

stems from a system-wide policy, who is then transferred to

a different facility within the same system where the

objectionable policy also applies, states a claim. Neither

Higgason nor any of the cases following it address this

point. See, e.g., Calhoun v. DeTella, 319 F.3d 936, 939 (7th

Cir. 2003) (finding transfer from prison where inmate

sought declaratory and injunctive relief concerning strip

search practice mooted claim); Henderson v. Sheahan, 196

F.3d 839, 848 n.3 (7th Cir. 2000) (finding transfer from

Cook County Jail to state prison system mooted plaintiff’s

claim for declaratory and injunctive relief against jailspecific practice). 

We express no opinion on the question whether Lehn will

be able to present enough evidence at the summary judgment stage to take his ETS claim to a trier of fact. Compare

Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996). At the 12(b)(6)

stage, however, Lehn has attacked IDOC’s practices as a

whole, and he has argued that he was adversely affected by

those practices as implemented at both Big Muddy River

and Graham. A § 1983 plaintiff states a valid claim when
No. 01-1957 17

she alleges two things: (1) deprivation of a federal right (2)

by a party acting under color of state law. Alvarado v.

Litscher, 267 F.3d 648, 651 (7th Cir. 2001). The Supreme

Court in Helling upheld a prisoner’s Eighth Amendment

claim that alleged that prison officials had exposed her

against her will to unreasonably high levels of ambient

smoke, which posed a serious risk to her future health. 509

U.S. at 35; see also Alvarado, 267 F.3d at 651 (recognizing

valid Eighth Amendment ETS claim based on current and

future serious health risk).

To state a claim under the Eighth Amendment on

the basis of future injuries (which is what we understand

Lehn has done at least in part in his complaint), he must

allege facts that “satisfy the objective and subjective elements necessary to prove an Eighth Amendment violation.”

Henderson, 196 F.3d at 847. The objective component requires Lehn to allege “that he himself is being exposed to

unreasonably high levels of ETS,” id. (quoting Helling, 509

U.S. at 35), and the subjective component requires Lehn to

allege “that prison officials were deliberately indifferent to

his plight as a non-smoker placed in a smoking environment.” Id. (quoting Helling, 509 U.S. at 36). Guided by

the rule that pro se complaints are construed liberally, see

Calhoun, 319 F.3d at 943, we find that Lehn has met these

standards. One of the documents that he attached to his

complaint, which we view as incorporated into the complaint, see FED. R. CIV. P. 10(c), is a letter to Warden

Hartwig indicating Lehn’s intent to file a lawsuit asserting

his Eighth Amendment right to “a living environment

that is free of environmental tobacco smoke.” This letter

documents Lehn’s view that he was being exposed to intolerable levels of ETS, as well as his unsuccessful efforts

to have Big Muddy River officials rectify his living situation. At this stage, he need do no more.
18 No. 01-1957

III

For these reasons, the judgment of the district court is

REVERSED, and this case is REMANDED for further proceedings consistent with this opinion. 

EVANS, Circuit Judge, concurring in part, dissenting in

part. I agree with the majority that Lehn’s ETS claim

should not have been dismissed under Rule 12(b)(6). However, the majority’s conclusion on Lehn’s access-to-thecourts claim is, I respectfully submit, erroneous. That claim

should remain dismissed for several reasons, the most

important being that on the state of this record, Illinois is

not obligated to assist Lehn in defending himself against

the Maryland “charges” (whatever form they take and

assuming they actually exist).

It’s a little hard to put my finger on exactly what the

majority is saying regarding Illinois’ responsibility vis-à-vis

the Maryland “indictment” (or, as variously described,

either the Maryland arrest warrants or Maryland’s request

under the Interstate Agreement on Detainers), but as best

I can make out, it is that the Maryland proceedings somehow affect Lehn’s security classification in Illinois, and that

keeps him from getting a good prison job and/or better

“housing assignments.” Perhaps there’s more here that I

don’t see, but if this is the case, I don’t see how it becomes

a constitutional denial of access-to-the-courts claim.

The majority tells us, citing Fellers v. United States, 124

S.Ct. 1019 (2004), that once the Maryland indictment was

returned, “Lehn’s Sixth Amendment right to counsel at-
No. 01-1957 19

tached,” and that it is “Maryland’s responsibility to ensure

that this right is respected” (page 6). That’s not quite

accurate. Lehn’s right to counsel on the Maryland indictment will ripen when he makes an initial appearance in a

Maryland courtroom to answer charges against him. See

Brewer v. Williams, 430 U.S. 387 (1977) (The Sixth Amendment right to counsel is triggered “at or after the time that

judicial proceedings have been initiated . . . ‘whether by

way of formal charge, preliminary hearing, indictment,

information, or arraignment,’ ” (quoting Kirby v. Illinois,

406 U.S. 682, 689)). It is the commencement of “judicial

proceedings” that gives birth to Sixth Amendment rights.

To say that the mere issuance of an indictment starts the

ball rolling is rather odd. Think how many people are not in

custody when charges (either complaint, indictment, or

information) are issued. Is a state required to appoint a

lawyer (assuming indigency) for someone who has not yet

been physically presented in court to answer charges? I

think not.

While it is true that Lehn would have a right to counsel

(and Fifth Amendment rights as well) if Maryland law

enforcement officers wanted to question him after he was

indicted but before judicial proceedings actually started (the

situation in Fellers), that’s not what is going on here. So the

fact that an “indictment” might be out there someplace

doesn’t trigger any constitutional “rights” Lehn might have

at this time to start working on a defense.

Everything I’ve just said about an indictment is equally

true if what we are talking about here are “Maryland arrest

warrants.” And that leaves possible proceedings under the

Interstate Agreement on Detainer (IAD). The IAD provides

procedures for inmates and prosecutors to follow when

looking to resolve outstanding criminal charges pending in

a noncustodial state. The purpose of the IAD is “to encourage the expeditious and orderly disposition” of untried

charges pending in states other than where the defendant
20 No. 01-1957

is presently incarcerated. (IAD, Article 1.) The IAD recognizes that an inmate, subject to a detainer, may not be

eligible for certain rehabilitative programs. One underlying

purpose of the IAD is, therefore, a reduction in the number

of limitations on prisoner participation in rehabilitative

programs. Another purpose is the speedy, if requested by an

inmate, disposition of criminal charges.

The scheme encompassed in the IAD is really quite

simple. The first procedural prerequisite is the filing of a

detainer against an inmate. A detainer is just a document

that puts the officials of the institution where the inmate is

incarcerated on notice that the inmate is wanted on charges

in another state. See United States v. Mauro, 436 U.S. 357

(1978). Because the detainer is merely a notice, it does not

authorize the transfer of the inmate.

Article III of the IAD describes the process an inmate

must use to initiate his own transfer. The inmate must notify the prosecuting authority and the court where the

charges are pending that he requests the disposition of

those charges. The request must be accompanied by a certificate from the official who has custody of the inmate. The

certificate describes the length of commitment, time already

served, and the time remaining to be served in the state

that has the inmate in custody.

Once the prosecutor and the trial court receive the inmate’s request and time certificate, the inmate must be

tried within 180 days unless that period is extended for

good cause. Article III of the IAD also provides that the

request for the disposition of the charges constitutes a

waiver of any extradition rights that may be available to

the inmate.

Article IV of the IAD describes the procedures associated

with the transfer of an inmate at the request of the state

where charges are pending. After the detainer is filed, the

prosecutor must file a request for temporary custody of the
No. 01-1957 21

inmate. That request is made to the authority where the

inmate is incarcerated. That request must be approved by

the court that has jurisdiction over the charges.

When detainers are filed, both an inmate and the state

where unresolved charges are pending, have choices. The

inmate can ignore the detainer (many in fact do—the lapse

of time may make the second state reluctant to prosecute a

stale case) or request that he be brought up for trial. If the

request is made, the state with pending charges has two

options: bring the inmate to court where formal proceedings will be commenced or drop the detainer. The latter

option is often pursued if the time and effort to produce and

prosecute an inmate will accomplish little or nothing. For

example, if Oregon, holding a burglary indictment, files a

detainer against an Indiana inmate serving 25 years for

second degree murder, chances are slim that it would want

to incur the expense of bringing him to Portland where, if

ultimately found guilty, he might only receive a short

concurrent sentence.

In our case it is not at all clear that there actually is an

IAD document filed against Lehn or, if there is, that he has

done what he must do to trigger an obligation on Maryland’s part to either drop it or bring him to the east coast

for trial. And Lehn certainly doesn’t need “Maryland legal

materials” to do this. The problem with the majority’s

decision is that we are telling Illinois that it must now have

legal materials available or accessible in its prison library

from 47 states. For these reasons, I dissent on the access-tocourts issue.
22 No. 01-1957

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-14-04