Wayne L. Brewer v. Ellen Ray

* After an examination of the briefs and the record, we have 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).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2006*
Decided May 11, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-3129
WAYNE L. BREWER,
Plaintiff-Appellant,
v.
ELLEN RAY,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin
No. 04-C-957-S
John C. Shabaz,
Judge.
O R D E R
Wayne Brewer is an inmate at the Wisconsin Secure Program Facility,
Wisconsin’s highest security prison, where Ellen Ray works as an “institutional
complaint examiner.” Brewer filed suit claiming as relevant here that Ray violated
his rights under the First and Fourteenth Amendments by hindering his access to
the courts. The district court granted summary judgment for Ray, and we affirm.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-3129 Page 2
In December 2001 a facility committee decided to place Brewer in
administrative confinement, citing past incidents of uncooperative, threatening, and
violent behavior. Brewer believed that some of the statements the committee made
in the documentation for its decision were “knowingly false,” and on December 20
he filed an institutional complaint asking that the record be “corrected.” The
complaint was denied as being outside the scope of the grievance procedure. On
May 1, 2002, Brewer filed an unrelated complaint alleging that his mattress had
been swapped for a “filthy, dingy, smelly floor matt.” This complaint was also
denied; in the documentation for that denial, facility staff characterized the
complaint as regarding a dirty mattress. On May 4 he filed another complaint
asking the facility staff to revisit his May 1 grievance because their description of
its substance had been “wholly untrue.” His request was denied.
In August 2002 Brewer brought a suit in the district court, Brewer v. Dep’t of
Corr., No. 02-C-0458-S (W.D. Wis. Nov. 25, 2002). He alleged that he had been
placed in administrative confinement as a result of false information, and that his
various institutional complaints had been mischaracterized and unjustly denied.
The district court, ruling that Brewer had not exhausted his administrative
remedies or shown that he had actually filed the complaints in question, dismissed
the case without prejudice on November 25, 2002. On Brewer’s motion the district
court granted him an extension of time in which to file an appeal, until January 24,
2003. Even so, Brewer never filed a notice of appeal.
On December 17, 2002, Brewer filed another institutional complaint. In it,
he alleged that a “serious eye injury” (later diagnosed as ileitis, or an inflammation
of the eye) prevented him from using a computer. He asked that the facility have
legal cases delivered to his cell, apparently to prepare for an appeal in Brewer v.
Department of Corrections. Facility staff rejected the complaint because prisons
doctor had not said that Brewer’s eye condition prevented him from using a
computer. Brewer repeated his request for the delivery of cases on December 30,
and again on January 14, 2003. In his last institutional complaint he explicitly
alleged that the refusal to deliver materials to his cell was part of the institution’s
ongoing attempt to obstruct his access to the courts.
A year later, Brewer filed this second suit under 42 U.S.C. § 1983, claiming
that several prison employees, including Ray, violated his rights under the First
and Fourteenth Amendment by preventing him from accessing the courts. He
argued that the defendants prevented him from filing a notice of appeal in Brewer v.
Department of Corrections when they refused to deliver legal research material to
his cell. Brewer later voluntarily dismissed all defendants other than Ray, and in a
thorough ruling the district court granted summary judgment for her.

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No. 05-3129 Page 3
On appeal Brewer does not identify any issue of material fact that should
have precluded summary judgment. Nor could he, because his legal theories are
frivolous. He argues first that the district court erred as a matter of law when it
held that Ray did not violate his First Amendment right of access to the courts. The
first obstacle to Brewer’s argument that Ray has generally obstructed his access to
the judiciary is that he is presenting that claim to the very court he to which he
alleges he was denied access. We have held that a prisoner’s “invocation of the
judicial process indicates that the prison has not infringed his First Amendment
right to petition the government for a redress of grievances.” Antonelli v. Sheahan,
81 F.3d 1422, 1430 (7th Cir. 1996). His active participation in this case, here and in
the district court, demonstrates that he does have access to the courts.
Brewer also contends that by denying his requests to have legal materials
delivered to his cell during Brewer v. Department of Corrections., Ray denied him
access to the court by preventing him from filing a notice of appeal. “The right of
individuals to pursue legal redress for claims that have a reasonable basis in law or
fact is protected by the First Amendment right to petition and the Fourteenth
Amendment right to substantive due process.” See Snyder v. Nolen, 380 F.3d 279,
291 (7th Cir. 2004). But Ray’s only action was to deny his grievance, and that
action did not infringe on any of Brewer’s rights. To prove a violation of the First
Amendment, Brewer would have to show that he was “prevented from presenting
legitimate grievances to a court.” Ortloff v. United States, 335 F.3d 652, 656 (7th
Cir. 2003). Here, Brewer presented his arguments in Brewer v. Department of
Corrections., and the district court rejected them. Ray’s denial of his grievance
could, at most, have prevented him from filing a timely notice of appeal, although
he has not shown how an inability to research cases could have stopped him from
filing such a notice. Moreover, Brewer’s case was dismissed without prejudice; he
was still able to present his claims to the district court after exhausting his
administrative remedies, and he has not shown how Ray ultimately prevented that.
As for his claim under the Fourteenth Amendment, such a claim “must be based on
a violation of a protected liberty or property interest.” Smith v. Town of Eaton,
Ind., 910 F.2d 1469, 1471 (7th Cir. 1990). But Brewer’s case against Ray is
predicated on her handling of his institutional grievances, which is not a protected
interest. See Antonelli, 81 F.3d at 1430. Denying Brewer’s grievances did not
infringe his rights under either the First or Fourteenth Amendments.
Brewer also makes a number of procedural arguments under the general
contention that the district court erred by refusing to screen his complaint pursuant
to 28 U.S.C. § 1915A. But the district court did screen his complaint, and allowed
him to proceed with the claims that are before us today. Brewer may mean that the
district court erred when it refused to allow him leave to amend his complaint. The
district court allowed him to amend his complaint once before the defendants
answered. See Fed. R. Civ. P. 15(a). Brewer attempted to amend his complaint a

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No. 05-3129 Page 4
second time; the record is murky, but he apparently intended to add several
defendants. The court was within its discretion to deny him leave to make that
second amendment. See Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854,
861 (7th Cir. 2001) (denial of leave to amend reviewed for abuse of discretion). A
district court has discretion to deny futile amendments. “An amendment is futile if
the added claim would not survive a motion for summary judgment.” Id. Brewer’s
claims against the defendants he intended to add were identical to his claims
against Ray, and there is no reason to believe that they would have survived
summary judgment.
Finally, Brewer contends that the district court should have served process
on the defendants through the United States Marshals Service. But while a district
court may use the Marshals Service to serve prisoners’ lawsuits, this is generally
reserved for complainants proceeding in forma pauperis. United States v. Antonelli,
371 F.3d 360, 362 (7th Cir. 2004). Brewer paid his filing fees, and was not entitled
to have the court serve process for him.
AFFIRMED.

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