In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4470

ANTHONY PRATT,

Plaintiff-Appellant,

v.

DAVID TARR, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04-C-839—Lynn Adelman, Judge.

____________

SUBMITTED AUGUST 23, 2006—DECIDED SEPTEMBER 27, 2006

____________

Before BAUER, POSNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge. The plaintiff in this state prisoner’s civil rights suit claims that prison officials violated

his constitutional right to access to the courts. His pro se

complaint alleges that they “den[ied] him adequate scribe

materials, a desk, a chair and personal legal property to

defend pending litigation in state and federal courts,

which caused plaintiff’s cases to now be lost and/or

dismissed”; they “violate[d] access to the courts’ standards

by refusing to release lawbooks, briefs, transcripts, case law

materials, [and] carbon paper.” The district judge dismissed

the suit on the ground that the plaintiff had failed to plead
2 No. 05-4470

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-tocourts 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 (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 Court repeated this Diktat in Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 513 and n. 3 (2002); see also Christopher v.

Harbury, 536 U.S. 403, 417-18 and n. 15 (2002), as we and the

other courts of appeals have done repeatedly since

Leatherman. E.g., Christopher v. Buss, 384 F.3d 879, 881 (7th
No. 05-4470 3

Cir. 2004); Thomson v. Washington, 362 F.3d 969, 971 (7th Cir.

2004); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir.

2002); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002);

Payton v. Rush-Presbyterian St. Luke’s Medical Center, 184 F.3d

623, 627 (7th Cir. 1999); Chao v. Rivendell Woods, Inc., 415

F.3d 342, 346-48 (4th Cir. 2005); Swann v. Southern Health

Partners, Inc., 388 F.3d 834, 836-38 (11th Cir. 2004). In Kolupa

v. Roselle Park District, 438 F.3d 713, 715 (7th Cir. 2006), we

said: “Any decision declaring ‘this complaint is deficient

because it does not allege X’ is a candidate for summary

reversal, unless X is on the list in Rule 9(b).” We repeated

this admonition in Simpson v. Nickel, 450 F.3d 303, 305 (7th

Cir. 2006). But old habits die hard.

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. 1988), 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).

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

recognized the tension between Ortloff and Lehn and sought
4 No. 05-4470

to dissolve it. We said that the pleading standard applicable

to denial of access claims is indeed notice pleading, but we

added that “the mere denial of access to a prison law library

or to other legal materials is not itself a violation of a

prisoner’s rights; his right is to access the courts, and only if

the defendants’ conduct prejudices a potentially meritorious

challenge to the prisoner’s conviction, sentence, or conditions of confinement has this right been infringed . . . . [A]

prisoner’s complaint [must therefore] spell out, in minimal

detail, the connection between the alleged denial of access

to legal materials and an inability to pursue a legitimate

challenge to a conviction, sentence, or prison conditions.

Requiring the complaint to include the basic allegations of

the prejudice suffered serves the traditional purpose of

notice pleading: it gives defendants fair notice of the claims

against them and a reasonable opportunity to form an

answer” (emphasis added); cf. Loubser v. Thacker, 440 F.3d

439, 442-43 (7th Cir. 2006) (citations omitted) (“although

conspiracy is not something that Rule 9(b) of the Federal

Rules of Civil Procedure requires be proved with

particularity . . . it differs from other claims in having a

degree of vagueness that makes a bare claim of ‘conspiracy’

wholly uninformative to the defendant. Federal pleading

entitles a defendant to notice of the plaintiff’s claim so that

he can prepare responsive pleadings. That is why courts

require the plaintiff to allege the parties, the general purpose, and the approximate date of the conspiracy”); Alston

v. Parker, 363 F.3d 229, 233-34 and n. 6 (3d Cir. 2004).

In other words, it is not enough for a plaintiff to allege

that the prison did not supply him with writing materials.

That wouldn’t give the prison a clue as to what injury

the plaintiff was alleging, and the prison would therefore

have no idea how to go about preparing its defense. To

survive a motion to dismiss, the complaint would have to
No. 05-4470 5

go on and allege that as a result of the prison’s action the

plaintiff had lost a case or suffered some other legal setback.

Applying the standard set forth in the opinion to Marshall’s complaint, we held the complaint adequate, though

it was only slightly more detailed than the complaint in this

case. Marshall “alleged that the defendants reduced his law

library access to a ‘non-existent’ level, and that his inability

to research and prepare for a May 29, 2003 court hearing

caused him to lose custodial credit time that would have

shortened his incarceration. The law requires no more from

a prisoner at this stage of the proceeding.” Marshall v.

Knight, supra, 445 F.3d at 969. The plaintiff in the present

case alleged that the defendants withheld law books, briefs,

and other materials that are needed by a pro se litigant if he

is to have the faintest chance of prevailing, and that as a

result he lost court cases. He did not list the cases he lost,

and this might have made it difficult for the defendants to

begin to prepare their defense—might even have justified

dismissal of the complaint, though presumably with leave

to replead—were it not that in response to the defendants’

motion to dismiss, the plaintiff submitted filings and other

documents relating to his numerous lawsuits. So the suits

were identified, and all that was missing was the precise

causal connection between particular legal materials

withheld and particular adverse rulings.

The district judge went through the exhibits and found

that none showed that the withholding of materials of

which the plaintiff complained had affected the outcome of

the suits. But one would not expect the filings to show this.

Cf. Alston v. Parker, supra, 363 F.3d at 234 n. 7. At some point

in this suit the plaintiff will be required to prove that

because he lacked law books or briefs or other materials

he lost one or more of those cases. That showing is not
6 No. 05-4470

required at the pleadings stage. There the only question is

the adequacy of the pleadings “to allow the court to determine at the outset of the litigation, before costly discovery

is undertaken, whether the plaintiff has any tenable theory

or basis of suit,” Ryan v. Mary Immaculate Queen Center, 188

F.3d 857, 860 (7th Cir. 1999), and to place the defendants on

notice of the plaintiff’s claim so that they can begin to

prepare their defense. Under this standard, the plaintiff’s

complaint, as is plain from Marshall, was adequate. If the

defendants need more information concerning the plaintiff’s

claim, they can serve a contention interrogatory on the

plaintiff, Fed. R. Civ. P. 33(c); Thomson v. Washington, supra,

362 F.3d at 971; Shah v. Inter-Continental Hotel Chicago

Operating Corp., 314 F.3d 278, 282-83 (7th Cir. 2002); Ryan v.

Mary Immaculate Queen Center, supra, 188 F.3d at 860, or file

a motion for a more definite statement, Fed. R. Civ. P. 12(e);

Alston v. Parker, supra, 363 F.3d at 234 n. 7; Anderson v.

District Board of Trustees, 77 F.3d 364, 366-67 and n. 4 (11th

Cir. 1996), just as the district judge on his own initiative can

ask the plaintiff for a brief or memorandum explaining the

legal basis of the plaintiff’s claim. Shah v. Inter-Continental

Hotel Chicago Operating Corp., supra, 314 F.3d at 282; Alston

v. Parker, supra, 363 F.3d at 234 n. 7.

The judgment is reversed and the case remanded for

further proceedings consistent with this opinion.
No. 05-4470 7

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-27-06