UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

JOHN A. BOCHNER, )

)

Plaintiff, )

) Case No. 3:14-CV-1604-JVB

v. )

)

BRUCE LEMMON, )

)

Defendant. )

OPINION AND ORDER

John A. Bochner, a pro se prisoner, filed a complaint alleging that six defendants denied

him access to the courts. “A document filed pro se is to be liberally construed, and a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers . . ..” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless,

pursuant to 28 U.S.C. § 1915A, this court must review the complaint and dismiss it if the action

is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who

is immune from such relief. “In order to state a claim under [42 U.S.C.] § 1983 a plaintiff must

allege: (1) that defendants deprived him of a federal constitutional right; and (2) that the

defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

Bochner alleges that the prison law library at the Miami Correctional Facility was

inadequate for various reasons from March 14, 2011, until October 22, 2012. He alleges that as a

result, many inmates were denied the ability to conduct necessary legal research. However,

Bochner is not an attorney and though he can represent his own interests, he may not represent

others. See Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Navin v. Park Ridge Sch. Dist.,

270 F.3d 1147, 1149 (7th Cir. 2001); and Nowicki v. Ullsvik, 69 F.3d 1320, 1325 (7th Cir. 1995).

Moreover, there is no “abstract, freestanding right to a law library [and] an inmate cannot
establish relevant actual injury simply by establishing that his prison’s law library or legal

assistance program is subpar in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351

(1996). Therefore the mere inadequacy of the Miami Correctional Facility Law Library does not

state a claim. 

But Bochner also alleges that his post-conviction appeal was procedurally defaulted

because of the inadequate law library. However, State actors have no duty to assure that

prisoners can litigate claims effectively once they have been raised in court. The right to access,

goes no further than access: 

It must be acknowledged that several statements in Bounds went beyond

the right of access recognized in the earlier cases on which it relied, which was a

right to bring to court a grievance that the inmate wished to present . . . . These

statements appear to suggest that the State must enable the prisoner to discover

grievances, and to litigate effectively once in court . . . . These elaborations upon

the right of access to the courts have no antecedent in our pre-Bounds cases, and

we now disclaim them.

Lewis, 518 U.S. at 354. Lewis only requires that an inmate be given access to file a complaint or

appeal. As the Seventh Circuit has explained, [t]he right of access to the courts protects prisoners

from being shut out of court, it does not exist to enable the prisoner to litigate effectively once in

court.” Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007) (en banc) (quotation marks, citations

and ellipsis omitted). Though Bochner did not provide the cause number of his post-conviction

appeal, it is clear that he is referring to Bochner v. State, 41A01-1112-PC-625 (Ind. Ct. App.

filed February 9, 2012) and that he was not shut out of court. See Indiana Clerk of the Appellate

Courts Online Public Docket.1

 

1

 https://courtapps.in.gov/Docket/Search/Detail?casenumber=41A011112PC00625 

2
Bochner filed his notice of appeal on December 14, 2011. He filed an amended notice of

appeal on January 9, 2012. He filed three motions on February 9, 2012. He filed a letter on

March 6, 2012, and a motion and a letter on March 21, 2012. He filed a motion on April 4, 2012,

and a letter on April 5, 2012. He filed motions on May 10, 2012, May 15, 2012, May 29, 2012,

and June 19, 2012. He filed two more motions on July 9, 2012. He filed motions on August 10,

2012, August 21, 2012, September 7, 2012, September 18, 2012, October 3, 2012, and October

4, 2012. Clearly he was not being denied access to the court. Nevertheless, his appeal was

dismissed on October 22, 2012. Thereafter, he filed two motions and a notice on October 25,

2012. He filed a petition for rehearing on November 16, 2012. He filed a petition to transfer to

the Indiana Supreme Court on January 7, 2013, and February 1, 2013. The record amply

demonstrates that Bochner had access to the court. 

The record can be read to support Bochner’s allegation that he was not able to litigate

effectively, but as previously explained, such an allegation does not state a claim. Bochner’s

allegations are merely that he might have been more effective if he had been given better access

to legal research materials. The allegations in Nitz v. Hall, 473 Fed. Appx. 513 (7th Cir. 2012),

were much more far ranging, and yet Nitz did not state a claim. He alleged that prison officials

confiscated 

at least four DVDs depicting video surveillance related to his criminal cases.

According to the complaint, Nitz informed prison employees that he needed the

DVDs to proceed in the pending litigation, but the employees took the DVDs as

contraband and refused to provide accurate “shakedown slips” inventorying the

number of DVDs taken. As a result of the employees’ actions, Nitz says, his

petition for review of his state criminal conviction was denied; his civil case in

Nitz v. Harvey was dismissed; summary judgment was granted for two defendants

in Nitz v. Doe; and his social security disability appeal was denied. He further

alleged that prison employees intentionally “messed up” legal copies by copying

only one side of two-sided documents and refused to provide him with the

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original materials; that prison grievance officers “refused to investigate”

grievances he had filed against prison library staff; and that his former parole

officer thwarted his success in his criminal and civil cases by neither testifying on

his behalf nor providing exculpatory evidence.

Id. at 514 (citations omitted). 

He alleged that the prison prevented him from effectively litigating actions that

were pending, but the right of access protects prisoners from “being shut out of

court,” Christopher v. Harbury, 536 U.S. 403, 415 (2002); it does not exist to

“enable the prisoners . . . to litigate effectively once in court,” Lewis, 518 U.S. at

354 (emphasis in original). 

Id. at 515 (parallel and string citation omitted). The Seventh Circuit then explained that Nitz

could no longer proceed in forma pauperis unless he was in imminent danger of serious physical

injury because he had accumulated three strikes pursuant to 28 U.S.C. § 1915(g). The court

noted that in addition to having acquired one strike in an unrelated case, Nitz received another

for filing Nitz v. Hall in the district court and a third because the appeal was frivolous. 

Bochner picked up his first strike in Bochner v. Truax, 3:09-cv-387 (N.D. Ind. filed

August 26, 2009), when it was dismissed pursuant to 28 U.S.C. § 1915A(b). Today, this case is

his second strike because it too is being dismissed pursuant to 28 U.S.C. § 1915A(b). Bochner is

cautioned that if he files another meritless case or appeal, he, too, will be prohibited from filing

any further civil cases unless he either pre-pays the $400 filing fee or is in imminent danger of

serious physical injury. 

For the foregoing reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A(b). 

SO ORDERED on June 12, 2014.

 S/ Joseph S. Van Bokkelen 

JOSEPH S. VAN BOKKELEN

UNITED STATES DISTRICT JUDGE

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