Bruce McCree v. Lieutenant Grissom

After examining the briefs and the record, we have å
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).
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1524
BRUCE MCCREE,
Plaintiff-Appellant,
v.
LIEUTENANT GRISSOM, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 10-575-MJR—Michael J. Reagan, Judge.
SUBMITTED AUGUST 31, 2011 —DECIDED SEPTEMBER 20, 2011 å
Before POSNER, ROVNER, and WOOD, Circuit Judges.
PER CURIAM. Bruce McCree, a federal inmate, appeals
the district court’s dismissal of his Bivens complaint, in
which he alleged that several prison officers violated his

-- 1 of 5 --

2 No. 11-1524
The 2011 Admission and Orientation Handbook for the 1
federal prison in Greenville, Illinois, where McCree is housed,
confirms that it has an “Electronic Law Library.” FED. CORR.
INST. GREENVILLE, ADMISSION & ORIENTATION HANDBOOK, 45
(2011), http://www.bop.gov/locations/institutions/gre/GRE_ fci_
aohandbook.pdf.
right of access to the courts. See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). McCree has not described any possible violation
of his legal rights, however, and so we affirm the judg-
ment of dismissal.
According to the allegations in McCree’s complaint,
which at this stage we must accept as true, see Smith
v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), the defendants
provided him limited and deficient access to the law
library for four months while he was confined in the
prison’s Special Housing Unit. McCree repeatedly asked
to use the library but on most occasions his requests
were denied. On the few occasions when he was
allowed to use the library, he had difficulty conducting
research because he did not know how to use the
prison’s new research system. The prison previously
had provided Federal Reporters for inmates, McCree
asserted, but in January 2010 it converted to a computer-
ized system featuring LexisNexis. No one instructed1
the inmates in Special Housing how to use the pro-
gram, and so McCree had to learn from an instruc-
tion manual, which was often misplaced. Consequently,
McCree alleged, he could not file responses in a
separate lawsuit he had brought under 42 U.S.C. § 1983,

-- 2 of 5 --

No. 11-1524 3
and his failure to meet the filing deadlines led the
district court to dismiss the suit. See McCree v. Sherrod,
No. 09-cv-601, 2010 WL 850117 (S.D. Ill. Mar. 5, 2010).
This court then compounded the error, in McCree’s
view, when we dismissed his appeal. (In fact, we dis-
missed his appeal because he did not pay the filing fee.
McCree v. Sherrod, No. 10-1642 (7th Cir. May 26, 2010).)
As proof of his injury, he pointed out that we granted
his motion to recall the mandate and reinstated the
appeal of his § 1983 suit. McCree v. Sherrod, No. 10-1642
(7th Cir. June 16, 2010) (reinstating appeal after McCree
moved to proceed in forma pauperis). McCree interprets
the recall of the mandate as a sign that his § 1983 suit
had merit.
The district court in the present case dismissed
McCree’s Bivens complaint without prejudice at
screening, see 28 U.S.C. § 1915A, because he did not
allege an injury from the denial of access to legal materi-
als. The court explained that McCree’s § 1983 suit had
been dismissed for failure to state a claim, not failure to
file a response. And even though McCree had alleged
denial of access to legal materials while in Special
Housing, the court concluded that his successful motion
to recall the mandate in his § 1983 appeal indicated
that he did have access to the court.
On appeal McCree argues that he showed prejudice
from the defendants’ interference with his access to the
library, insisting that he was unable to litigate ade-
quately his § 1983 suit. But the record in that case, of
which we may take judicial notice, see Adkins v. VIM

-- 3 of 5 --

4 No. 11-1524
Recycling, Inc., 644 F.3d 483, 493 (7th Cir. 2011), belies his
contention. While in special housing, McCree filed a
notice of appeal, a motion to proceed in forma pauperis,
a motion to reconsider the denial of that motion, and a
motion to suspend the appeal. This activity illustrates
that he had and used his access to the court. See United
States v. Sykes, 614 F.3d 303, 311 (7th Cir. 2010) (finding
no deprivation of court access when defendant filed
three motions to dismiss). And even if McCree’s access
was curtailed, we agree with the district court that he
did not allege any resulting injury. We originally dis-
missed the appeal of his § 1983 suit because he did not
pay the filing fee, but we granted his motion to recall
the mandate when he moved to proceed in forma
pauperis. McCree v. Sherrod, No. 10-1642 (7th Cir. June 16,
2010). McCree pursued his appeal; we concluded,
however, that his complaint did not state a claim.
McCree v. Sherrod, 408 F. App’x 990 (7th Cir. 2011). Without
a tenable argument to pursue in that suit, McCree
cannot show actual prejudice resulting from the denial of
access to the law library. See Christopher v. Harbury,
536 U.S. 403, 415 (2002); Ortiz v. Downey, 561 F.3d 664,
671 (7th Cir. 2009); Pratt v. Tarr, 464 F.3d 730, 732-33
(7th Cir. 2006). Because McCree’s complaint fails to
state a claim, the district court properly dismissed it,
although the dismissal should have been with prejudice.
McCree also argues that the district court should have
allowed him to amend his complaint before dismissing
it. A court should grant leave to amend when justice
requires it. FED. R. CIV. P. 15(a)(2). But McCree never

-- 4 of 5 --

No. 11-1524 5
moved to amend, and moreover, any amendment to
his complaint would be futile because of his earlier,
unsuccessful § 1983 suit. See James Cape & Sons Co. v. PCC
Constr. Co., 453 F.3d 396, 400-01 (7th Cir. 2006).
Accordingly, we AFFIRM the judgment as MODIFIED
to reflect that the judgment is with prejudice.
9-20-11

-- 5 of 5 --