### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19

- 1825
L OGAN A. O WSLEY , Plaintiff

- Appellant ,

v.
M ARK E. G ORBETT , et al

. , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the Southern District of Indiana , Indianapolis Division. No. 1:15

- cv
- 00552

- RLY

- MJD

— Richard L. Young , Judge

.

____________________ A RGUED M AY 19, 2020

— D ECIDED J UNE 1, 2020

____________________
Before E ASTERBROOK , B RENNAN , and S T

. E VE , Circuit Judges

. E ASTERBROOK , Circuit Judge

. Public officials in Barthol omew County, Indiana, believe that Cary Owsley committed suicide. His son, Logan, believes that Cary was murdered by his wife, Lisa, and her sons DeWayne and Josh . Contending that the Sheriff and his d eputies have lost or destroyed ev idence t hat would help Cary’s estate to pursue claims against2 No. 19

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the putative murderers, Logan filed this federal civil

- rights suit, invoking 42 U.S.C. §§ 1983, 1985 , and 1986

. Logan purported to represent his father’s estate, but e xcept for a bri ef time he has not been its administrator. Lisa Owsley occupied that position, and Indiana’s judiciary d enied Logan’s request to replace her. See In re Estate of Owsley , No. 03C01

- 1406

- ES

- 002796 (Ind. Cir. Ct., Feb. 16, 2016). See also Owsley v. Gorbett , 87 N.E.3d 44 (Ind. App. 2017) (affir ming the denial of Logan’s motion to open a separate estate)

. The estate decided not to pursue litigation, but it did assign to Logan “[w] hatever interest the Estate of Cary A. Ow sley has in the feder al lawsuit” ( id . at ¶5). The state’s appellate court implied that “whatever interest” the estate had is worthless but left final determination to the federal court. The federal court dismissed Logan’s suit for lack of standing . Instead of deciding whether the assignment to L ogan conferred a valuable interest, the judge wrote that Logan has n ot suffered any personal injury . And because Logan’s federal claim failed, the judge dismissed without prejudice Logan’s state

- law tort claims for infliction of emotiona l di stress. All parties are citizens of Indiana, so only the suppl emental jurisdiction of 28 U.S.C. §1367 could support the tort claims, and with federal jurisdiction lacking the state

- law claims also had to go. Dismissal of the federal claims on jurisdict ional grounds was a misstep. Logan asserts injury and seeks damages. D ecedents’ relatives may have damages claims against tortfe asors, and Logan also has the benefit of the assignment from the estate. Federal law permits assignees to sue on assignors’ clai ms. See Sprint Communications Co. v. APCC Services, Inc ., 554 U.S. 269 (2008) . The right to sue as representative of anNo. 19

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estate depends on state law, see Fed. R. Civ. P. 17(b)(3), and the district court properly recognized that the state court’s decision to retain Lisa as the e state’s representative is not subject to collateral attack. Cf. Marshall v. Marshall , 547 U.S. 2 93 (2006) (discussing the probate exception to federal juri sdiction)

. Calling Lisa a “conspirator” does not enable a fe deral court to take over a probate matter. That leaves the a ssigned claim. The district judge evidently believed that it is not worth anything, but that concerns the merits rather than subject

- matter jurisdiction. See Bell v. Hood , 327 U.S. 678 (1946). Otherwise every losing suit would be dismissed for lack of jurisdiction

. Logan contends that , by concealing or destroying ev idence that the estate could have use d to sue Lisa and her children

— or perhaps to persuade a state judge to replace Lisa as the estate’s administrator

— defe ndants deprived the estate of access to the courts, thus violating the Constitution. (Logan does not contend, however, that he or his father’s e state had a right to have the S heriff and police investigate a nyone for murder. See Castle Rock v. Gonzales , 545 U.S. 748 (2005) ; DeShaney v. Winnebago County Department of Social Services , 489 U.S. 189 (1989) .) Like the state court, we have doubts about this “access” ap proach. Logan does not contend that the defendan ts did anything that blocked the estate from filing a wrongful

- death suit. Cary’s estate decide d not to sue because it believed that he committed suicide, not because defendants in this federal suit closed the courthouse doors. Had a suit been filed, the state court could have issued discovery orders , and if the objects of those orders concealed or destroyed evidence, the state judge could have found4 No. 19

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them in contempt or imposed other appropriate sanctions. Cf. Fed. R. Civ. P. 37 (b)(2)(A) (listing the sanctions that fe deral courts use f or failure to produce evidence in discovery), 45(g) (authorizing contempt sanctions against nonparties). All of this is equally true about the proceeding s Logan filed in state court seeking to replace Lisa as the administr ator. Far from denying him access to the state courts, defen dants provided Logan with grounds to litigate there. Which he did. Logan predicts that sanctions in state litigation would have been ineffective, but why conduct a stand

- alone federal suit to assess how state litigation w ould have p roceeded ? Spoliation of evidence all too often requires resolution in the course of litigation. We asked at oral argument if Logan’s counsel was aware of any decision hold ing that asserted sp o liation supplies the basis of an independent federal suit unde r an “access to the courts” rubric. Counsel did not cite any such decision, and our o wn research did not locate one. Nor could we find a decision holding that potential witnes ses’ asserted willingness to lie or otherwise frustrate the pr ogress of a state s uit permits independent federal litigation. A person can have ample access to the courts, though it will be hard to assemble the evide nce needed to win

. None of the Supreme Court’s “access to the courts” cases hints that a potential discovery problem can b e the basis of a federal suit, when the state courts are open. Just as a federal defense does not allow a federal court to decide a suit founded on state law, see Home Depot U.S.A., Inc. v. Jackson , 139 S. Ct. 1743, 1748 (2019) ; Franchise Tax Board v. Cons tru ction Laborers Vacation Trust , 463 U.S. 1, 13

– 14 (1983) , a pote n-No. 19

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tial federal issue during discovery in a suit founded on state law should not spawn a separate federal suit. The district court did not consider this subject, and pe rhaps Logan has a line o f argument, not articulated in his a ppellate briefs, that would overcome our skepticism. T he first order of business on remand should be to decide whether an

access

- to

- courts claim, the only thing covered by the a ssignment, can be based on an assertion tha t the defendants concealed or destroyed evidence that could have been rel evant, had suit been filed in state court.
V ACATED AND R EMANDED