                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 01-1688
JAMES R. SNYDER,
                                            Plaintiff-Appellant,
                               v.

JACK T. NOLEN,
                                           Defendant-Appellee.

                         ____________
           Appeal from the United States District Court
               for the Southern District of Illinois.
            No. 98 C 671—William L. Beatty, Judge.
                         ____________
 ARGUED SEPTEMBER 20, 2002—DECIDED AUGUST 13, 2004
                   ____________




  Before EASTERBROOK, RIPPLE and KANNE, Circuit Judges.
  PER CURIAM. James Snyder filed this action pursuant to
42 U.S.C. § 1983 against Jack Nolen, Clerk of the Circuit
Court of Saline County, Illinois. The complaint alleged that
Mr. Nolen had violated Mr. Snyder’s constitutional right of
access to the courts when Mr. Nolen prevented Mr. Snyder
from prosecuting a domestic relations action for dissolution
of marriage and a temporary restraining order in the state
court. The district court dismissed Mr. Snyder’s complaint
on the alternate grounds that it did not state a constitu-
tional claim, that Mr. Nolen was entitled to absolute qua-si-
judicial immunity and that Mr. Nolen was entitled to
2                                                No. 01-1688

qualified immunity. Mr. Snyder appealed, and this court
now affirms.
  It is the unanimous opinion of the court that Mr. Nolen is
not protected by absolute quasi-judicial immunity. Nev-
ertheless, it is the opinion of the majority of the panel that
Mr. Snyder has not stated a claim for a constitutional vio-
lation of right to access to the courts; the individual judges,
however, differ with respect to how they arrive at that deter-
mination. A third member of the panel is of the opinion that
Mr. Snyder’s complaint states a constitutional violation and
that Mr. Nolen is not entitled to qualified immunity on that
claim.
  This per curiam opinion sets forth the procedural back-
ground of the case and articulates the court’s holding with
respect to the issue of absolute quasi-judicial immunity.
The separate opinions of the panel majority follow, as does
that of the panel’s dissenting member.


                              I
                     BACKGROUND
                              A.
  In November of 1996, Mr. Snyder attempted to file a
petition for a dissolution of marriage and a temporary
restraining order against his wife, Denise Snyder, in the
Circuit Court of Saline County, Illinois. In his petition, Mr.
Snyder requested that the state court “enter an order
restraining [his wife] from selling or concealing or encum-
bering in any manner” the property claimed to be his pur-
suant to a prenuptial agreement. R.22, Ex.1. Mr. Snyder
alleged that he was estranged from his wife, that his wife
was in sole possession of his non-marital property, that he
was incarcerated in the custody of the Illinois Department
of Corrections, and that his assets were at substantial risk
because his wife had indicated to Mr. Snyder’s friends that
No. 01-1688                                                        3

she intended to liquidate certain property belonging to Mr.
Snyder.
   According to Mr. Snyder’s complaint in this action, the
pleadings that he proposed to file in the state domestic
relations proceedings complied with that court’s technical
filing requirements and alleged a factual basis for a disso-
lution of marriage and for a temporary restraining order.
Nevertheless, Mr. Nolen, as the Circuit Court Clerk, al-
legedly removed Mr. Snyder’s pleadings from the court’s
docket and placed a large “X” over the court’s “Filed” stamp
with the word “error.” R.22.1 Mr. Nolen then returned the



1
   The district court characterized Mr. Nolen’s conduct as a refusal
to file Mr. Snyder’s pleadings. We note, however, that Mr.
Snyder’s second amended complaint actually characterizes Mr.
Nolen’s conduct in two ways. First, the complaint alleges that Mr.
Nolen wrongfully refused to file the pleadings. Second, the com-
plaint states that “Nolen gave the court jurisdiction by affixing a
file-stamp and docketing number, and his actions in ‘whiting out’
[the] same was an ‘impermissible encroachment of judicial au-
thority.’ ” R.22.
  In Coles v. Terrell, 44 N.E. 391 (Ill. 1896), and more recently
in Ayala v. Goad, 531 N.E.2d 1040 (Ill. App. Ct. 1988), the Illinois
courts have held that, once the clerk has file stamped the pleading
and docketed the case, the papers become the files of the court and
cannot be withdrawn without leave of court. See Coles, 44 N.E. at
392 (“The clerk put his file mark upon it, and also docketed it in
the probate docket. It then . . . most certainly became a part of the
records of the court. It had passed completely out of the control of
the party filing it, and it could not be subsequently withdrawn
without an order of court. The clerk had no authority to permit its
withdrawal.”); Ayala, 531 N.E.2d at 1043 (“It is clear that by file
stamping the complaint and assigning a docket number, the
clerk’s office filed the complaint on January 5, 1987, notwith-
standing that the fee may not have been paid, and it was then in
the exclusive custody and control of the clerk’s office and a part of
                                                       (continued...)
4                                                    No. 01-1688

pleadings to Mr. Snyder with a note attached, stating that
“[b]ecause there is a child involved in this case, you must go
thru [sic] an attorney for a divorce.” R.22, Ex.1. The parties
do not dispute that Mr. Nolen’s instruction was incorrect.
The complaint further alleges that Mr. Nolen took these
actions “without consulting any judge . . . as to the propri-
ety of his actions.” R.22 at 5.2 According to the complaint,
sometime after Mr. Snyder’s state court pleadings were
rejected and returned, his wife liquidated his non-marital
assets and dissipated the proceeds.


                                B.
  On September 17, 1998, Mr. Snyder filed this action
against Mr. Nolen pursuant to 42 U.S.C. § 1983. The com-
plaint alleged that Mr. Nolen had violated Mr. Snyder’s
constitutional right of access to the courts and that, as a



1
  (...continued)
the records of the circuit court. The filing date of the complaint
could not thereafter be changed by the clerk of the circuit court as
he has no authority to do so without leave of court.”).
2
   Whether Mr. Nolen’s action is characterized as a refusal to file
Mr. Snyder’s pleadings or a removal of Mr. Snyder’s pleadings
from the docket, there appears to be no authority under Illinois
law to justify his actions. See infra note 9; cf. Ayala, 531 N.E.2d
at 1043 (“The circuit clerk’s practice of filing then changing the
filing dates on documents where fees were not paid created the
situation in the present case. Such a practice impermissibly en-
croaches upon the judicial authority and casts doubt upon the
reliability of the dates on which documents have been filed with
his office. We point out that the clerk may refuse to accept a docu-
ment unless the fee is paid (Ill.Rev.Stat. 1987, ch. 25, par. 27.1);
however, where the clerk has accepted a document for filing without
the fee, file stamps it and assigns a docket number, as occurred in
the present case, the circuit court nevertheless acquires juris-
diction of the case.”).
No. 01-1688                                               5

result of that violation, Mr. Snyder was prevented from
obtaining a court order to prevent his wife from dissipating
his non-marital assets. Mr. Snyder’s original complaint was
stricken by the district court for non-compliance with the
procedural requirements of Local Rule 8.1 (“Pleadings Filed
by Prisoners”) because the complaint was not prepared on
the court’s required forms. See R.3.
  On November 2, 1998, Mr. Snyder filed a first amended
complaint. This complaint and a motion to dismiss filed
by Mr. Nolen were referred to a magistrate judge. The
magistrate judge recommended that Mr. Snyder’s complaint
be dismissed on the ground that Mr. Nolen’s action was a
quasi-judicial act entitled to absolute immunity. See R.19.
Mr. Snyder timely objected to this recommendation. The
district court, without considering the magistrate judge’s
recommendation, dismissed Mr. Snyder’s complaint, with
leave to re-file, on the ground that it was unclear from the
complaint whether Mr. Snyder was suing Mr. Nolen in his
official or individual capacity. See R.21.
  On April 6, 2000, Mr. Snyder timely filed a second
amended complaint, the pleading at issue here. In this
complaint, Mr. Snyder claimed that Mr. Nolen was liable in
his individual capacity for blocking Mr. Snyder’s access to
the Saline County Court in violation of the federal right of
access to the courts. He further alleged a supplemental
claim based on the Constitution of the State of Illinois.
Specifically alleging the loss of his personal property, Mr.
Snyder sought compensatory damages in the amount of
$60,000 (the value of his dissipated assets) and punitive
damages in the amount of $100.
  Mr. Nolen again filed a motion to dismiss. On February
2, 2001, the magistrate judge recommended that the com-
plaint be dismissed on three separate grounds: (1) that the
complaint did not state a constitutional claim; (2) that Mr.
Nolen was entitled to absolute quasi-judicial immunity; and
6                                                   No. 01-1688

(3) that Mr. Nolen was entitled to qualified immunity. See
R.33. A notice accompanied the magistrate judge’s report
and recommendation that notified the parties that the
failure to object to the report within ten days of service “shall
result in a waiver of the right to appeal all issues, both
factual and legal, which are addressed in the Report and
Recommendation.” Id.
  Mr. Snyder filed no objections to the magistrate judge’s
report. On February 23, 2001, the district court adopted the
magistrate judge’s report and recommendation and granted
Mr. Nolen’s motion to dismiss. See R.34. On March 7, 2001,
the district court entered judgment in favor of Mr. Nolen.
See R.35. On March 16, 2001, Mr. Snyder filed with the
district court a motion to vacate the judgment and, in the
alternative, a notice of appeal. In a sworn affidavit, Mr.
Snyder explained that he had just returned from a different
prison facility to which he had been transferred on tempo-
rary writ status for a fitness hearing in his underlying
criminal case.3 He did not receive the magistrate judge’s
order until his return. By that time, the district court had
entered a judgment. Mr. Snyder further stated that, prior
to his transfer, he had requested that the prison warden
forward his mail to his temporary address but that the
prison had failed to do so. The district court denied Mr.
Snyder’s motion to vacate the judgment on April 2, 2001.
See R.40. This appeal followed.




3
  Specifically, Mr. Snyder stated that he was transferred from the
Shawnee Correctional Center to the Illinois River Correctional
Center on January 3, 2001, and that he did not return to Shawnee
until March 7, 2001.
No. 01-1688                                                 7

                             II
                      DISCUSSION
                             A.
  We first must determine whether Mr. Snyder has waived
his right to appeal. Mr. Nolen submits that, because Mr.
Snyder failed to timely object to the magistrate judge’s
report, he has waived his right to appeal all factual and
legal issues to this court. Mr. Snyder concedes that he did
not object to the magistrate judge’s report; however, he
maintains that the interests of justice require a finding that
his right to appeal has not been waived.
  In Thomas v. Arn, 474 U.S. 140, 155 (1985), the Supreme
Court held that, consistent with the requirements of due
process, “a court of appeals may adopt a rule conditioning
appeal, when taken from a district court judgment that
adopts a magistrate’s recommendation, upon the filing of
objections with the district court identifying those issues on
which further review is desired” so long as the rule provides
“clear notice to the litigants and an opportunity to seek an
extension of time for filing objections.” In so holding, the
Court further provided that “because [this] rule is a
nonjurisdictional waiver provision, the Court of Appeals
may excuse the default in the interests of justice.” Id. In
Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th
Cir. 1986), this circuit adopted such a rule, concluding that
“failure to file objections with the district judge waives the
right to appeal all issues, both factual and legal.” However,
we also recognized that “under certain circumstances the
failure to file objections may be excused because the rule is
not jurisdictional and should not be employed to defeat the
ends of justice.” Id. at 540 (internal quotation marks and
citations omitted).
   Mr. Snyder was a pro se litigant throughout the proceed-
ings in the district court. As a general proposition, pro se
litigants are subject to the same waiver rules as litigants
8                                                     No. 01-1688

represented by counsel. See Provident Sav. Bank v.
Popovich, 71 F.3d 696, 700 (7th Cir. 1995). However, we
decline to apply waiver in this case because doing so would
defeat the ends of justice. Shortly before the magistrate
judge’s report was issued and mailed to Mr. Snyder’s “perm-
anent” prison address, Mr. Snyder was transferred tempo-
rarily to a different correctional facility. Mr. Snyder re-
quested that the prison forward his mail, but the prison
failed to do so. As a result, Mr. Snyder did not receive the
magistrate judge’s report until after the time for objection
had expired and the district court had entered judgment
against Mr. Snyder.
  We cannot accept Mr. Nolen’s contention that waiver
should be applied in this case because Mr. Snyder’s failure
to receive the magistrate’s report was due to his own fault
in failing to notify the court clerk of his change of address.
The record simply will not support such a finding of fault on
the part of Mr. Snyder. As a general principle, because
“[t]he parties are far better situated to know of any errors
in their address information,” litigants, including prisoners,
“bear the burden of filing notice of a change of address in
such a way that will bring the attention of the court to the
address change.” Theede v. United States Dep’t of Labor, 172
F.3d 1262, 1267 (10th Cir. 1999). Here, we deal with a
temporary absence from a continuing address. Mr. Snyder
has set forth the steps that he took to ensure that he
received his mail during his absence on a temporary writ
from the institution to which he was regularly assigned.
Notably, the record contains no indication that Mr. Snyder
in any way departed from the prison’s normal course of
procedure.4 Accordingly, we decline to hold that Mr. Snyder



4
   The realities of prison administration require that those re-
sponsible for the administration of these institutions have signi-
ficant flexibility in setting up procedures to ensure that prisoners
                                                       (continued...)
No. 01-1688                                                         9

waived his right to appeal.


                                 B.
  We next must determine whether, given the specific alle-
gations of the complaint, Mr. Nolen may claim absolute
quasi-judicial immunity.
 Following the holdings of the Supreme Court of the
United States,5 we have recognized “the fundamental


4
  (...continued)
who are temporarily absent from their place of incarceration
receive prompt notification of official correspondence. If a prison
administration believes that the administrative burden of forward-
ing the mail of temporarily transferred prisoners is too great, it may
establish a procedure requiring the prisoner to assume responsi-
bility for making his new address known to his correspondents,
including the courts in which the prisoner has cases pending. As
long as the prisoner is given adequate and timely notice of his new
address and an opportunity to notify the court, such a provision
would impose a reasonable requirement upon the prisoner.
5
  See Mireles v. Waco, 502 U.S. 9, 12-13 (1991) (holding that judge’s
alleged action in directing officers to bring before the court an
attorney who was in the courthouse was taken in judge’s judicial
capacity and, therefore, judge was entitled to absolute immunity
even though he allegedly directed officers to carry out the order
with excessive force); Forrester v. White, 484 U.S. 219, 225-29
(1988) (holding that judge acted in administrative capacity when
he demoted and dismissed probation officer and, therefore, was
not entitled to absolute immunity); Stump v. Sparkman, 435 U.S.
349, 362-63 (1978) (holding that judge acted in judicial capacity
when he approved mother’s ex parte petition to have her mentally
retarded minor daughter sterilized and, therefore, was entitled to
absolute immunity); Pierson v. Ray, 386 U.S. 547, 553-55 (1967)
(holding that 42 U.S.C. § 1983 did not abolish the “settled princi-
ple” of judicial immunity and, therefore, judge could not be held
                                                       (continued...)
10                                                     No. 01-1688

principle that judges are entitled to absolute immunity from
damages for their judicial conduct.” Richman v. Sheahan,
270 F.3d 430, 434 (7th Cir. 2001). The principle “is sup-
ported by a long-settled understanding that the independ-
ent and impartial exercise of judgment vital to the judiciary
might be impaired by exposure to potential damages
liability. Accordingly, the ‘touchstone’ for the doctrine’s
applicability has been ‘performance of the function of re-
solving disputes between parties, or of authoritatively ad-
judicating private rights.’ ” Antoine v. Byers & Anderson, Inc.,
508 U.S. 429, 435-36 (1993) (quoting Burns v. Reed, 500
U.S. 478, 500 (1991) (Scalia, J., concurring in judgment in
part and dissenting in part)).
  The Supreme Court has instructed that a functional
approach should be taken in determining whether an in-
dividual is entitled to absolute immunity. See Forrester v.
White, 484 U.S. 219, 224 (1988); Cleavinger v. Saxner, 474
U.S. 193, 201 (1985). Whether absolute immunity ought to
be afforded is dependent upon the nature of the functions
performed by the officer in question and “the effect that
exposure to particular forms of liability would likely have
on the appropriate exercise of those functions.” Forrester,
484 U.S. at 224. “[T]he cloak of immunity is designed to
prevent a situation in which decision-makers act with an
excess of caution or otherwise . . . skew their decisions in
ways that result in less than full fidelity to the objective
and independent criteria that ought to guide their conduct
out of a fear of litigation or personal monetary liability.”
Tobin for Governor v. Illinois State Bd. of Elections, 268


5
   (...continued)
liable for an unconstitutional conviction); Bradley v. Fisher, 80
U.S. (13 Wall.) 335, 351 (1872) (holding that “judges of courts of
superior or general jurisdiction are not liable to civil actions for
their judicial acts, even when such acts are in excess of their juris-
diction, and are alleged to have been done maliciously or corruptly”).
No. 01-1688                                                       11

F.3d 517, 522 (7th Cir. 2001) (internal quotation marks and
citations omitted).
  These policy concerns have required that, in some in-
stances, “[t]he absolute immunity afforded to judges [be]
extended to apply to quasi-judicial conduct of [n]on-judicial
officials whose official duties have an integral relationship
with the judicial process.” Richman, 270 F.3d at 435 (inter-
nal quotation marks and citations omitted); see also In re
Castillo, 297 F.3d 940, 947 (9th Cir. 2002) (“Absolute judi-
cial immunity is not reserved solely for judges, but extends
to nonjudicial officers for ‘all claims relating to the exercise
of judicial functions.’ ” (quoting Burns, 500 U.S. at 499
(Scalia, J., concurring in judgment in part and dissenting in
part))).
  This immunity has been extended to non-judges in two
circumstances. First, it has been applied to “quasi-judicial
conduct,” Richman, 270 F.3d at 435, that is, actions of non-
judicial officers acting in a judicial capacity. As the Supreme
Court has explained, “[w]hen judicial immunity is extended
to officials other than judges, it is because their judgments
are ‘functional[ly] comparab[le]’ to those of judges—that is,
because they, too, ‘exercise a discretionary judgment’ as a
part of their function.” Antoine, 508 U.S. at 436 (quoting
Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976)).6


6
  In holding that court reporters are not protected by absolute
quasi-judicial immunity, the Supreme Court in Antoine v. Byers
& Anderson, Inc., 508 U.S. 429 (1993), wrote:
    The function performed by court reporters is not in this
    category. . . . [C]ourt reporters are required by statute to
    “recor[d] verbatim” court proceedings in their entirety. 28
    U.S.C. § 753(b). They are afforded no discretion in the
    carrying out of this duty; they are to record, as accurately
    as possible, what transpires in court. . . . In short, court
    reporters do not exercise the kind of judgment that is
                                                       (continued...)
12                                                       No. 01-1688

Absolute immunity does not extend to all positions simply
“because they are part of the judicial function.” Id. at 435
(internal quotation marks and citations omitted).
  Absolute judicial immunity also has been extended to the
conduct of a second group of individuals. “[W]hen functions
that are more administrative in character have been un-
dertaken pursuant to the explicit direction of a judicial
officer, we have held that that officer’s immunity is also
available to the subordinate.” Kincaid v. Vail, 969 F.2d 594,
601 (7th Cir. 1992). “The policy justifying an extension of
absolute immunity in these circumstances is to prevent
court personnel and other officials from becoming a light-
ning rod for harassing litigation aimed at the court.”
Richman, 270 F.3d at 435 (internal quotation marks and
citations omitted). In applying this type of quasi-judicial
immunity, this court further has distinguished between the
court’s order and the manner in which the order is enforced.
See id. at 436. Thus, deputies who allegedly used excessive
force in carrying out a judge’s order to clear the courtroom
were not entitled to absolute immunity; the suit challenged
the way the officers enforced the order, not the order itself.
See id. at 437-39.
  Before the recent guidance of the Supreme Court in
Antoine, we had occasion to apply these principles to clerks
of court on a few occasions. In Lowe v. Letsinger, 772 F.2d
308, 313 (7th Cir. 1985), we noted that “a court clerk enjoys
absolute immunity in rare instances where he is performing
nonroutine, discretionary acts akin to those performed by
judges.” We then determined that absolute immunity did
not apply to a clerk’s involvement in the concealment of the
entry of a post-conviction order “because the clerk’s duty to


6
    (...continued)
       protected by the doctrine of judicial immunity.
Id. at 436-37.
No. 01-1688                                                       13

type and send notice after entry of judgment is a non-
discretionary, ministerial task.” Id. In Kincaid, we considered
the issue once again. Because the clerks in Kincaid acted
pursuant to judicial instruction when they returned the
plaintiffs’ complaint and filing fee and (erroneously) di-
rected them to file in a different court, we readily concluded
that the clerks’ actions were protected by absolute immu-
nity. See Kincaid, 969 F.2d at 601.
  We have not had the opportunity to address squarely the
issue presently before us—whether a clerk’s refusal to file
a pleading qualifies for absolute immunity in the absence of
explicit judicial direction.7 We must therefore decide


7
   Writing before the receipt of the more recent guidance from the
Supreme Court, those circuits that have addressed the issue have
reached contrary conclusions. In Mullis v. United States Bankruptcy
Court for the District of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987),
the Ninth Circuit held that clerks who initially accepted and filed
an incomplete bankruptcy petition without giving proper coun-
seling and notice regarding the chapters of the Bankruptcy Code
under which the plaintiff could file and later refused to accept an
amended petition were protected by absolute immunity. In so
doing, the court reasoned that “[t]he commencement of an action
by filing a complaint or petition is a basic and integral part of the
judicial process” and “[t]he clerk of court and deputy clerks are the
officials through whom such filing is done.” Id.; see also Smith v.
Erickson, 884 F.2d 1108, 1111 (8th Cir. 1989) (noting that “the
filing of complaints and other documents is an integral part of the
judicial process and that [a court clerk] would be protected by
judicial immunity from damages for civil rights violations com-
mitted in connection with the performance of such tasks”). The
Fourth Circuit in McCray v. Maryland, 456 F.2d 1, 4 (4th Cir.
1972), held, however, that “there is no basis for sheltering [a]
clerk from liability under section 1983 for failure to perform a
required ministerial act such as properly filing papers.” The court
reasoned that there was no history of extending such immunity to
clerks at common law and “the threat of possible tort liability does
                                                        (continued...)
14                                                    No. 01-1688

whether Mr. Nolen’s actions in the present case, as de-
scribed in the operative complaint, fall within one of the two
categories of actions for which absolute judicial immunity
has been extended to non-judges in our previous cases.
   With respect to the first category, Mr. Nolen was not
acting in a “functionally comparable” way to a judge. At the
outset, no one suggests that, under the law of Illinois, the
action of Mr. Nolen of extracting from the files of the court
a previously filed case and returning it to the litigant
without any judicial action having been taken can be char-
acterized as being colorably within his authority as the clerk
of a court. Indeed, it appears established that such action is
beyond the authority of the clerk.8 More importantly, on
this record, we cannot say that a traditional judicial func-
tion that involves the exercise of discretion has been dele-
gated to a subordinate court officer. As noted by the Supreme
Court, the “touchstone” for applying absolute immunity has
been “the function of resolving disputes between parties, or
of authoritatively adjudicating private rights.” Antoine, 508
U.S. at 435. Here, Mr. Nolen’s duty under the law of Illinois
to maintain the official record was purely ministerial; he
had no authority to resolve disputes between parties or to
make substantive determinations on the worth or merits of a
filing. In short, Mr. Nolen is charged with having breached
his duty to perform the ministerial act of accepting techni-




7
  (...continued)
not ‘unduly inhibit’ the clerk in the discharge of his duties.” Id.
8
  See, e.g., Ayala, 531 N.E.2d at 1043 (stating that a court clerk
may refuse to accept a document unless the fee is paid, but where
the clerk has accepted the document for filing without the fee, file
stamps it and assigns a docket number, the court nevertheless
acquires jurisdiction).
No. 01-1688                                                         15

cally     sufficient        papers.9       The      function       re-


9
   Section 13 of the Clerks of Courts Act, 705 Ill. Comp. Stat. 105/0.01
et seq., sets forth the general duties of court clerks. It does not
give the clerk the authority to refuse to file papers that conform
to the technical rules of court. Section 13 provides in relevant part
that “[t]he clerks shall attend the sessions of their respective
courts, preserve all the files and papers thereof, make, keep and
preserve complete records of all the proceedings and determina-
tions thereof, except in cases otherwise provided by law, and do
and perform all other duties pertaining to their offices, as may be
required by law or the rules and orders of their courts respectively.”
705 Ill. Comp. Stat. 105/13. Rule 131 of the Rules of the Supreme
Court of Illinois specifies the proper form of papers and appears
to provide some basis for a court clerk to reject a procedurally
nonconforming pleading. The rule provides:
    (a) Legibility. All papers and copies thereof for filing and
    service shall be legibly written, typewritten, printed, or
    otherwise duplicated. The clerk shall not file any which
    do not conform to this rule.
    (b) Titles. All papers shall be entitled in the court and
    cause, and the plaintiff ’s name shall be placed first.
    (c) Multiple Parties. In cases in which there are two or
    more plaintiffs or two or more defendants, it is sufficient
    in entitling papers, except a summons, to name the first-
    named plaintiff and the first-named defendant with the
    usual indication of other parties, provided there be added
    the official number of the cause.
    (d) Name, Address and Telephone Number of Responsible
    Attorney or Attorneys. All papers filed in any cause or
    served upon the opposite party shall bear the name and
    business address and telephone number, if any, of the
    responsible attorney or attorneys and the law firm filing
    the same, or of the party who appears in his own proper
    person. If service by facsimile transmission is permitted
    and the responsible attorney or attorneys or the party
    who appears in his own proper person will accept service
                                                     (continued...)
16                                                     No. 01-1688

quired of him by law involves none of the discretion that the
Supreme Court has told us in Antoine is at the heart of
absolute judicial immunity.
  At least on the record before us, the second category for
quasi-judicial immunity is equally inapplicable to the clerk
in this case. This second category includes individuals who
are acting at the direction of a judicial officer. At this point
in the litigation, there is no claim that Mr. Nolen was ac-
ting at the direction of any judicial officer in returning Mr.
Snyder’s papers.
  Accordingly, we must conclude that, on this record, there
is no basis for dismissal of the action on the ground of ab-
solute quasi-judicial immunity.10


9
     (...continued)
        by facsimile transmission, then the paper shall also bear
        the statement “Service by facsimile transmission will be
        accepted at [facsimile telephone number].”
Ill. S. Ct. R. 131; see also 1A Nichols Ill. Civ. Prac. § 11:7 (“Su-
preme Court Rule 131, which pertains to the preparation and form
of papers in original proceedings, provides that the clerk of the
court is not to file any papers which do not conform with the
requirements of Rule 131 as to form.”).
10
   At first glance, it may seem that our review of this case is pre-
cluded by the Rooker-Feldman doctrine. See Dist. of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid.
Trust Co., 263 U.S. 413 (1923). Neither the parties nor the district
court addressed this issue, and we believe that they were correct
in that regard. The Rooker-Feldman doctrine prohibits lower
federal courts from engaging in appellate review of state court
determinations. See Young v. Murphy, 90 F.3d 1225, 1230 (7th
Cir. 1996); Garry v. Geils, 82 F.3d 1362, 1364 (7th Cir. 1996); Levin
v. Attorney Reg. & Disciplinary Comm’n of the Supreme Court of
Illinois, 74 F.3d 763, 766 (7th Cir. 1996). “Litigants who believe
that a state judicial proceeding has violated their constitutional
                                                       (continued...)
No. 01-1688                                                      17

                                C.
  We turn next to Mr. Nolen’s claim that he is entitled on
this record to qualified immunity.
  Qualified immunity shields government officials from civil
liability “for the performance of their discretionary functions
when ‘their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.’ ” Buckley v. Fitzsimmons, 509
U.S. 259, 268 (1993) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The central purpose of qualified immunity
is to protect public officials “ ‘from undue interference with
their duties and from potentially disabling threats of


10
   (...continued)
rights must appeal that decision through their state courts and
then to the [United States] Supreme Court.” Centres, Inc. v. Town
of Brookfield, 148 F.3d 699, 702 (7th Cir. 1998). The specific
allegation in Mr. Snyder’s complaint is that Mr. Nolen, acting as
the Circuit Court Clerk, refused to file or actually removed al-
ready filed papers from the court’s docket. Under Illinois law, the
clerk simply has the ministerial duty to file papers that conform
to the technical rules of court. See In re Estate of Davison, 430
N.E.2d 222, 223 (Ill. App. Ct. 1981) (“Delivery alone has been held
to constitute filing since the person filing has no control over the
officer who receives documents. Subsequent ministerial tasks of
the clerk evidence the filing of a document but are not essential to
its perfection.” (internal citation omitted)); Roesch-Zeller, Inc. v.
Hollembeak, 124 N.E.2d 662, 664 (Ill. App. Ct. 1955) (“The duty of
the clerk to file the document on the date it was presented to him
was a ministerial act, the performance of which could be com-
pelled by writ of mandamus.”). Illinois therefore certainly would
not consider Mr. Nolen’s actions a “proceeding.” We therefore have
no occasion to address the tension between the doctrine of
absolute judicial immunity and the application of the Rooker-
Feldman doctrine to suits for damages against state judicial
officers. See Jackson v. Gardner, No. 93-3539, 1994 WL 684041,
at * 1 (7th Cir. Dec. 7, 1994).
18                                                No. 01-1688

liability.’ ” Elder v. Holloway, 510 U.S. 510, 514 (1994)
(quoting Harlow, 457 U.S. at 806). In determining whether
a defendant is entitled to qualified immunity, we engage in
a two-part inquiry. See Saucier v. Katz, 533 U.S. 194, 201
(2001). First, we determine whether, taken in the light most
favorable to the plaintiff, the facts alleged show that the
defendant violated a constitutional right. See id. If a
constitutional violation is shown on the basis of those facts,
we then determine whether the right was clearly estab-
lished at the time of the violation. See id. The clearly
established inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposi-
tion.” Id. “ ‘The contours of the right must be sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.’ ” Id. at 202 (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)). The plaintiff bears
the burden of establishing the existence of a clearly estab-
lished constitutional right. See McGrath v. Gillis, 44 F.3d
567, 570 (7th Cir. 1995).
  We first must determine whether the complaint before us
states a claim for a deprivation of the federal right of access
to the courts. Mr. Snyder alleges that he was deprived of his
federal constitutional right of access to the courts under the
First Amendment and substantive due process when Mr.
Nolen refused to file Mr. Snyder’s petition for a dissolution
of marriage and for a temporary restraining order against
his wife.
  Mr. Nolen first maintains that Mr. Snyder was not de-
prived of a constitutional right because a prisoner’s right of
access to the courts is limited to actions challenging his
conviction, sentence or conditions of confinement. The mem-
bers of the panel agree that Mr. Nolen’s argument miscon-
strues the relevant Supreme Court precedent. In one line of
cases, the Supreme Court has held that the fundamental
right of access to the courts requires prison authorities to
provide prisoners with the tools necessary “to attack their
No. 01-1688                                                  19

sentences, directly or collaterally, and in order to challenge
the conditions of their confinement.” Lewis v. Casey, 518 U.S.
343, 355 (1996); see also Bounds v. Smith, 430 U.S. 817, 828
(1977); Wolff v. McDonnell, 418 U.S. 539, 579-80 (1974);
Johnson v. Avery, 393 U.S. 483, 490 (1969). However, the
Supreme Court also has held that the First Amendment
right to petition the government includes the right to file
other civil actions in court that have a reasonable basis in
law or fact. See McDonald v. Smith, 472 U.S. 479, 484
(1985) (“[F]iling a complaint in court is a form of petitioning
activity; but baseless litigation is not immunized by the
First Amendment right to petition.” (internal quotation
marks and citations omitted)); Bill Johnson’s Rests., Inc. v.
NLRB, 461 U.S. 731, 741 (1983) (“[T]he right of access to the
courts is an aspect of the First Amendment right to petition
the Government for redress of grievances.”); California
Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972) (“The right of access to the courts is indeed but one
aspect of the right of petition.”); see also Monsky v.
Moraghan, 127 F.3d 243, 246 (2d Cir. 1997) (“It is well
established that all persons enjoy a constitutional right of
access to the courts.”). This parallel development of these two
distinct lines of cases was recognized explicitly by our
colleagues in the Sixth Circuit in John L. v. Adams, 969 F.2d
228 (6th Cir. 1992). That court held that “in order to assure
that incarcerated persons have meaningful access to courts,
states are required to provide affirmative assistance in the
preparation of legal papers in cases involving constitutional
rights and other civil rights actions related to their incarcera-
tion,” but “in all other types of civil actions, states may not
erect barriers that impede the right of access of incarcer-
ated persons.” Id. at 235.
  The right of access to the courts is the right of an indi-
vidual, whether free or incarcerated, to obtain access to the
courts without undue interference. The right of individuals
to pursue legal redress for claims that have a reasonable
20                                                  No. 01-1688

basis in law or fact is protected by the First Amendment
right to petition and the Fourteenth Amendment right to
substantive due process. See Vasquez v. Hernandez, 60 F.3d
325, 328 (7th Cir. 1995); see also Johnson v. Atkins, 999
F.2d 99, 100 (5th Cir. 1993) (“Meaningful access to the
courts is a fundamental constitutional right, grounded in
the First Amendment right to petition and the Fifth and
Fourteenth Amendment due process clauses.”). The Fifth
Circuit’s discussion in Jackson v. Procunier, 789 F.2d 307
(5th Cir. 1986), is particularly instructive. In Jackson, a
prisoner alleged that he was deprived of his constitutional
right of access to the courts when personnel in the prison
mailroom intentionally delayed his petition to proceed in
forma pauperis and the delay resulted in the dismissal of
his state appeal from an adverse civil judgment. The district
court interpreted the prisoner’s claim as a negligent depri-
vation of property without due process and dismissed the
complaint for failure to state a claim because there was an
adequate post-deprivation state remedy. The Fifth Circuit
reversed, holding that the complaint stated a viable cause
of action for the intentional deprivation of the prisoner’s
constitutional right of access to the courts, in violation of
the First Amendment and substantive due process. Id. at
308. The court squarely rejected the defendants’ contention
that a prisoner’s right of access to the courts is limited to
the presentation of constitutional, civil rights and habeas
corpus claims, stating that “[r]ecognition of the constitu-
tional right of access to the courts . . . long precedes
Bounds, and has from its inception been applied to civil as
well as constitutional claims.” Id. at 311.11


11
  Along with our colleagues in the Fourth Circuit, see Pink v.
Lester, 52 F.3d 73, 76 (4th Cir. 1995), we have made clear that an
allegation of simple negligence will not support a claim that an
official has denied an individual of access to the courts. See
                                                    (continued...)
No. 01-1688                                                       21

  Having rejected Mr. Nolen’s narrow view of prisoners’
right to access, we next must consider whether the constitu-
tional right to access is sufficiently broad to encompass Mr.
Snyder’s claim. For the reasons set forth in the separate
opinions that follow, the majority of the panel concludes
that Mr. Snyder’s complaint does not state a claim for
violation of his constitutional right of access to the courts.
The judgment of the district court therefore is affirmed.




  EASTERBROOK, Circuit Judge, concurring in part and
concurring in the judgment. I join the Per Curiam opinion.
That joint opinion leaves off at the question whether a
clerk’s failure to file a complaint violates the due process
clause by denying the plaintiff “access” to the courts. Nolen


11
  (...continued)
Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir. 1992) (holding that an
isolated incident of negligence resulting in failure to file complaint
did not rise to the level of a constitutional violation); see also Lee
X v. Casey, 771 F. Supp. 725, 729 (E.D. Va. 1991) (holding that
negligent conduct by deputy clerk of court in failing to file letter
as a notice of appeal did not give rise to a constitutional claim for
violation of access to the courts). Although the pro se complaint in
this case is not a model of clarity, we believe that it cannot be
characterized fairly as alleging mere negligence on the part of Mr.
Nolen. Cf. Gregory v. Nunn, 895 F.2d 413, 415 n.2 (7th Cir. 1990)
(noting in access to courts context that pleading requisite intent
“need not detain our review of a Rule 12(b)(6) dismissal” and
holding that the plaintiff’s complaint stated a viable claim for
deprivation of the right of access to the courts).
22                                               No. 01-1688

returned Snyder’s complaint; this was a mistake as a mat-
ter of Illinois law. But errors of state law differ from of-
fenses against the Constitution. Clerks (and judges too) are
fallible; litigants have “access” to the court when there are
avenues to correct mistakes.
   What Nolen did has parallels in many courts’ practice.
The Clerk of the Supreme Court returns, without filing,
petitions that he believes to be untimely or procedurally
deficient, see Sup. Ct. R. 1.1, and until a recent amendment
to Fed. R. Civ. P. 5(e) clerks of other federal courts screened
documents for compliance with the federal rules and
returned those that flunked. (The Clerk of the Supreme Court
of Illinois still has that authority. Ill. Sup. Ct. R. 131(a).)
How can those gatekeeping steps, or Nolen’s similar act, be
thought to deprive anyone of “access” to the courts, given the
litigant’s opportunity to ask a judge to direct the clerk to
accept and file the paper? It won’t do to say that Nolen’s
action was ultra vires while the Clerk of the Supreme Court
is authorized to return petitions. No public employee is
authorized to err, but all do occasionally; the Clerk of the
Supreme Court can slip up in thinking a given petition
deficient. The question is whether a public employee’s gaffe
in the application of state rules violates the fourteenth
amendment. That question has an established, and negative,
answer. See, e.g., DeShaney v. Winnebago County Depart-
ment of Social Services, 489 U.S. 189, 202 (1989); Snowden
v. Hughes, 321 U.S. 1, 11 (1944); Archie v. Racine, 847 F.2d
1211, 1215-18 (7th Cir. 1988) (en banc).
  A forum that offers an opportunity to be heard before a
decision becomes final provides due process of law. Liti-
gants disappointed by the acts of a court’s administrative
staff have that opportunity. The Supreme Court entertains
motions to direct its Clerk to file documents. See Sup. Ct. R.
21. Only if the staff prevented the judiciary from seeing
such a request would there be a plausible claim that the
No. 01-1688                                                 23

litigant lacked access to the courts. Yet Snyder does not
contend that Nolen would have refused to transmit a mo-
tion to a judge. Illinois authorizes judges to direct clerks to
file papers they have returned. 705 ILCS 25/11. Cf. Doe v.
Carlson, 250 Ill. App. 3d 570, 619 N.E. 2d 906 (2d Dist.
1994). As Nolen blundered by returning Snyder’s complaint,
a judge would have fixed things pronto. Instead of filing a
motion in state court, however, Snyder filed this federal suit
demanding money from the clerk. He is in the wrong
judicial system, seeking the wrong relief. Perhaps his lack
of counsel in the state litigation is responsible. Snyder’s
status as a legal amateur does not, however, excuse his
failure to take the steps provided or required by the judicial
system. See McNeil v. United States, 508 U.S. 106, 113
(1993). His ignorance of the right way to proceed certainly
does not support an award of damages against a clerk of
court.
  My point is not that the opportunity to litigate in state
court is the process “due” for a completed wrong, à la Parratt
v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468
U.S. 517 (1984). That would pose the question whether,
after Christopher v. Harbury, 536 U.S. 403 (2002), and
Lewis v. Casey, 518 U.S. 343 (1996), access to the courts is
a procedural entitlement, to which Parratt and its successors
apply, or a substantive entitlement, to which they do not.
Instead my point is that opportunities to correct mistakes
before a suit reaches its conclusion means that there is no
constitutional problem in the first place. To see this consider
an example. The clerk must notify the parties immediately
on entering judgment, as the time to appeal starts with
entry. Sometimes, however, a clerk neglects that duty. It
was established doctrine for many years that litigants (and
their lawyers) are responsible for checking the docket to see
whether a decision has been made, and that they can’t take
a late appeal if the clerk errs. Today Fed. R. App. P. 4(a)(6)
allows reopening if the losing side acts within 180 days;
24                                               No. 01-1688

thereafter the judgment is beyond review. Each litigant’s
opportunity to protect his interests within the case
itself—by checking the docket often enough to make a
motion under Rule 4(a)(6) (and before that, by checking the
docket every 30 days)—means that the clerk’s error does not
deny anyone “access to the courts.” Just so here. Snyder could
have asked a judge to direct Nolen to file the pleading. That
option provides ready access to the courts.
  Suppose that Nolen had accepted Snyder’s pleading and
that the judge had immediately dismissed it for failure to
state a claim, with the notation “[b]ecause there is a child
involved in this case, you must go thru [sic] an attorney for
a divorce.” (This is the same language Nolen used.) Suppose
further that Snyder had not asked for reconsideration— or
had appealed but not asked for expedition, and that his
spouse had squandered the assets before the appellate court
reversed. Would we say “Snyder suffered a denial of his
constitutional right of access to the courts, but judicial
immunity blocks relief”? I do not think so. We would say
that the opportunity to protest the initial misstep is the
access to the courts that the Constitution guarantees.
Access neither implies nor ensures an error-free process.
Here the clerk rather than the judge made the notation, but
the case was just beginning; Snyder had many options.
Electing to let the blunder stand without protest does not
bootstrap a mistake into a constitutional violation. The
State of Illinois did not deprive Snyder of “access” to its
courts; rather, it made an error in handling his suit. Errors
in the course of litigation may justify motions and appeals;
they do not support damages litigation under the federal
Constitution.


   KANNE, Circuit Judge, concurring in part and concurring
in the judgment. I join the Per Curiam opinion. However,
I do agree with my colleague, Judge Ripple, that Christopher
No. 01-1688                                                 25

v. Harbury, 536 U.S. 403 (2002) provides the template for
the analysis of this case, and therefore find compelling a
good portion of his separate opinion carefully laying out
Christopher’s approach to determining whether a complaint
states a right-to-access claim (see dissenting opinion, section
I. A.) and applying Christopher to the matter before us (see
id. at sections I. B. 1. and 2.). I also agree with Judge
Ripple’s discussion of the distinction between Christopher
and Parrett v. Taylor, 451 U.S. 527 (1981) (see id. at section
I. B. 3. a.).
  Where Judge Ripple and I part company is in the appli-
cation of the third prong of the Christopher test for deter-
mining whether Mr. Snyder’s second amended complaint
states a right-to-access claim (see id. at section I. B. 3. b.).
As Judge Ripple cogently explains, that third element requires
Mr. Snyder to request a remedy awarded as recompense for
the denial of access to the courts (and, hence, the frustra-
tion of his underlying claim), but that remedy must not
otherwise be available through other litigation. Christopher,
536 U.S. at 415. Unlike Judge Ripple, I do not believe Mr.
Snyder has met this threshold based on the facts of this
case—facts that in salient respects mirror those of the
unsuccessful plaintiff in Christopher.
  Mr. Snyder sought, as relief in his underlying claim against
his then-wife, a temporary restraining order preventing her
from dissipating his assets allegedly covered by a valid
prenuptial agreement. This form of relief—which seeks, at
a specific moment in time, to stop the defendant’s adverse
behavior—is similar to the injunction sought by the plaintiff
in Christopher. There, the plaintiff claimed that the relief
she would have sought in the underlying action against the
government, had she not been frustrated by its deceptive
and misleading statements, was an injunction preventing
her husband’s murder. Id. at 419.
26                                               No. 01-1688

  The Christopher Court recognized that the plaintiff’s
right-to-access claim, brought after her husband’s death,
could not possibly provide her the relief she would have
originally sought—an injunction stopping his murder. As
the Court stated:
     It is true that she cannot obtain in any present tort
     action the order she would have sought before her
     husband’s death, the order that might have saved her
     husband’s life. But neither can she obtain any such
     order on her access claim, which therefore cannot
     recompense [her] for the unique loss she claims as
     a consequence of her inability to bring an [ ] action
     earlier.
Id. at 421-22. Because that time-sensitive opportunity was
lost forever, all that remained to compensate the plaintiff
for the alleged denial of access to the courts was primarily
money damages. That, the Court determined, was available
through other causes of action already pending against the
government, thus eliminating any basis for a separate
right-to-access claim. Id. at 422.
  Like the plaintiff in Christopher, Mr. Snyder claims he
has lost the time-sensitive opportunity to prevent his former
wife from dissipating his assets. That moment being gone,
what he attempts to recover in his right-to-access suit is
money damages equal to his lost property. Yet, the relief he
now seeks on his federal constitutional access claim was
obtainable in state court through other non-constitutional
claims against his former wife, such as a suit for breach of
the prenuptial agreement. Under such circumstances, where
more than one avenue remained open for the recovery of
monetary damages at the time of the filing of the constitu-
tional access claim, Mr. Snyder was, ipso facto, not deprived
of his constitutional right of access to the courts.
  Although this case was disposed of in the district court on
other grounds, the dismissal of Mr. Snyder’s second
No. 01-1688                                                27

amended complaint was proper under the third prong of
Christopher, as described above.




  RIPPLE, Circuit Judge, dissenting. Because I believe that
Mr. Snyder’s complaint states a claim for a constitutional
violation of his right to access to the courts and that Mr.
Nolen is not entitled to qualified immunity on that claim, I
respectfully dissent.


                              I
                             A.
  Recent Supreme Court guidance, not available to my
colleague in the district court at the time of his decision,
sets forth criteria that a court must consider in determining
whether a plaintiff has set forth a viable claim of right to
access to the courts. Specifically, in Christopher v. Harbury,
536 U.S. 403 (2002), the Supreme Court had occasion to
delineate with more precision than in its earlier cases the
requirements for stating a viable cause of action for depri-
vation of the right of access to the courts. In Christopher,
the widow of a murdered Guatemalan citizen brought a
Bivens action in which she alleged, among other things,
that certain federal officials had concealed and covered up
information regarding her husband’s kidnaping, torture and
death. She further alleged that this concealment had denied
her the right of access to the courts. The complaint, brought
after the husband’s death, alleged that the official deception
had denied the plaintiff access to the courts “by leaving her
28                                                No. 01-1688

without information, or reason to seek information, with
which she could have brought a lawsuit that might have
saved her husband’s life.” Id. at 405. The Supreme Court
held that the complaint did not state an actionable claim for
denial of access to the courts for two reasons: (1) the
complaint failed “to identify an underlying cause of action
for relief that the plaintiff would have raised had it not
been for the deception alleged,” and (2) the plaintiff failed
“to seek any relief presently available for denial of access to
courts that would be unavailable otherwise.” Id. at 405-06.
   Noting that its decisions have grounded the right of access
to the courts in the Article IV Privileges and Immunities
Clause, the First Amendment, and the Due Process Clauses
of the Fifth and Fourteenth Amendments, see id. at 415 n. 12,
the Court further observed that access-to-courts claims
fall into two categories. One type seeks to eliminate “sys-
temic official action [that] frustrates a plaintiff or plaintiff
class in preparing and filing suits at the present time.” Id.
at 413. The Court explained that, in cases of this sort, “[t]he
opportunity has not been lost for all time, [ ] but only in the
short term; the object of the denial-of-access suit, and the
justification for recognizing that claim, is to place the
plaintiff in a position to pursue a separate claim for relief
once the frustrating condition has been removed.” Id. The
second type aims to compensate a plaintiff for wrongful
official conduct that has caused the plaintiff to lose a
litigation opportunity. See id. at 413-14. “The official acts
claimed to have denied access may allegedly have caused
the loss or inadequate settlement of a meritorious case, the
loss of an opportunity to sue, or the loss of an opportunity
to seek some particular order of relief.” Id. at 414 (internal
citations omitted). The Court explained that “[t]hese cases
do not look forward to a class of future litigation, but
backward to a time when specific litigation ended poorly, or
could not have commenced, or could have produced a
remedy subsequently unobtainable. The ultimate object of
No. 01-1688                                                 29

these sorts of access claims, then, is not the judgment in a
further lawsuit, but simply the judgment in the access
claim itself, in providing relief obtainable in no other suit in
the future.” Id. (internal footnotes omitted).
   In either case, “the very point of recognizing any access
claim is to provide some effective vindication for a separate
and distinct right to seek judicial relief for some wrong.” Id.
at 414-15. The Court made clear that, in all cases, the
constitutional right of access to the courts “is ancillary to
the underlying claim, without which a plaintiff cannot have
suffered injury by being shut out of court,” and thus, “the
underlying cause of action, whether anticipated or lost, is an
element that must be described in the complaint, just as
much as allegations must describe the official acts frustrat-
ing the litigation.” Id. at 415. The Court also made clear
that, when the access claim looks backward to a lost
litigation opportunity, “the complaint must identify a remedy
that may be awarded as recompense but not otherwise
available in some suit that may yet be brought.” Id. The
Court reasoned that there is “no point in spending time and
money to establish the facts constituting denial of access
when a plaintiff would end up just as well off after litigat-
ing a simpler case without the denial-of-access element.” Id.
  Applying these standards to the facts in Christopher, the
Court determined that the plaintiff’s complaint “did not
come even close to stating a constitutional claim for denial
of access upon which relief could be granted.” Id. at 418.
First, “the complaint failed to identify the underlying cause of
action that the alleged deception had compromised, going
no further than the protean allegation that the State
Department and NSC defendants’ ‘false and deceptive in-
formation and concealment foreclosed Plaintiff from effec-
tively seeking adequate legal redress.’ ” Id. The complaint
left the court and the defendants “to guess at the unstated
cause of action supposed to have been lost, and at the rem-
30                                               No. 01-1688

edy being sought independently of relief that might be
available on the 24 other counts set out in the complaint.” Id.
Second, even if the court of appeals accepted the plaintiff’s
allegation during oral argument that she “would have brought
an action for intentional infliction of emotional distress as
one wrong for which she could have sought the injunctive
relief that might have saved her husband’s life,” id. at 419,
the plaintiff “could not satisfy the requirement that a back-
ward-looking denial-of-access claim provide a remedy that
could not be obtained on an existing claim,” id. at 420-21.
The Court reasoned that the plaintiff’s complaint presently
included a claim for intentional emotional distress and that
she could seek damages based on this cause of action. See
id. at 421. The Court recognized that the plaintiff could not
“obtain in any present tort action the order she would have
sought before her husband’s death, the order that might
have saved her husband’s life.” Id. However, the Court
pointed out that “neither can she obtain any such order on
her access claim, which therefore cannot recompense [the
plaintiff] for the unique loss she claims as a consequence of
her inability to bring an intentional-infliction action ear-
lier.” Id. at 421-22. Because “the access claim [could not]
address any injury she has suffered in a way the presently
surviving intentional-infliction claims cannot,” the plaintiff
was “not entitled to maintain the access claim as a substi-
tute, backward-looking action.” Id. at 422.
  In sum, in order to state a claim for backward-looking
denial of access under Christopher, a party must identify in
the complaint: (1) a nonfrivolous, underlying claim, (2) the
official acts frustrating the litigation, and (3) a remedy that
may be awarded as recompense but that is not otherwise
available in a future suit. See id. at 415; see also Neaves v.
City of San Diego, No. 02-55512, 2003 WL 21500201, at *1
(9th Cir. June 27, 2003).
No. 01-1688                                                 31

                              B.
  1. Underlying claim
  With these principles in mind, I turn to the facts of the
case at hand. In Christopher, the Court made clear that, in
a backward-looking access case such as this one, the
complaint must state the underlying claim in accordance
with the requirements of Rule 8(a) of the Federal Rules of
Civil Procedure to the same degree as if the underlying
claim was being pursued independently. See Christopher,
536 U.S. at 417. In short, the complaint must set forth a
“short and plain statement of the claim.” Id. at 418 (quoting
Fed. R. Civ. P. 8(a)). Christopher thus requires that the
underlying cause of action “must be addressed by allega-
tions in the complaint sufficient to give fair notice to a
defendant.” Id. at 416. The statement also must be suffi-
ciently specific to ensure that the district court can ascertain
that the claim is not frivolous and that the “the ‘arguable’
nature of the underlying claim is more than hope.” Id.
   Upon examination of the complaint, I believe that Mr.
Snyder has met this requirement of Christopher. In his
second amended complaint, Mr. Snyder alleged that he had
attempted to file a petition for dissolution of marriage and
a temporary restraining order to prevent his wife “from
illegally dissipating his assets, all being covered by a fully
executed prenuptial agreement.” R.22. Mr. Snyder further
alleged that he “had attached the proper filing fee” and that
“there was no constitutionally permissible reason for
defendant Nolen to refuse to file plaintiff’s case.” Id.
Furthermore, Mr. Snyder attached to his second amended
complaint the pleadings that he had attempted to file in the
state court. In these documents, Mr. Snyder alleged that his
wife was “guilty of extreme and repeated mental cruelty in
that she refuses to speak or correspond with [him], and had
refused to send money to [him] despite his $350/month
mortgage payments,” that his wife was “in sole possession
of all the property to which [he] claim[ed] as his pursuant
32                                                   No. 01-1688

to the referenced prenuptial agreement,” that he had
“revoked a Power of Attorney given to [his wife], but [she]
retain[ed] the document purporting to give her power of
attorney over [his] affairs,” that his wife had “indicated to
[his] friends that she would sell some of [his property],
despite agreements not to sell anything without prior
authorization from [Snyder],” and that he would “suffer
irreparable injury if such temporary restraining order is not
granted.” Id. These allegations, which properly are consid-
ered part of Mr. Snyder’s complaint,1 are certainly sufficient
to identify the underlying claim in which access to the state
court allegedly was denied.


    2. Official acts
  The second requirement articulated in Christopher is also
met in the present case. Mr. Snyder’s complaint clearly
alleges the official acts that frustrated the underlying liti-
gation. Specifically, the complaint alleges that Mr. Nolen
removed Mr. Snyder’s pleadings from the court’s docket and
returned them to Mr. Snyder with a note attached that
stated that “[b]ecause there is a child involved in this case,
you must go thru [sic] an attorney for a divorce.” R.22. The
complaint further alleges that “[t]here existed no written
nor official policy that a similarly situated person as the
plaintiff had to have an attorney to file a dissolution action
when a child was involved,” and that Mr. Nolen had
removed Mr. Snyder’s pleadings from the court’s docket


1
  See Fed. R. Civ. P. 10(c) (“A copy of any written instrument
which is an exhibit to a pleading is a part thereof for all pur-
poses.”); Thompson v. Illinois Dep’t of Prof ’l Regulation, 300 F.3d
750, 753 (7th Cir. 2002) (stating that the complaint includes any
exhibits attached thereto); Beam v. IPCO Corp., 838 F.2d 242, 244
(7th Cir. 1988) (same); Moran v. London Records, Ltd., 827 F.2d
180, 181 (7th Cir. 1987) (same); English v. Local Union No. 46,
654 F.2d 473, 477 (7th Cir. 1981) (same).
No. 01-1688                                                33

“without consulting any judge [or] state attorney as to the
propriety of his actions in denying plaintiff’s access to
court.” Id.


  3. Remedy available
  Finally, Christopher requires that we consider whether
Mr. Snyder’s complaint identifies, at the level of specificity
required by Rule 8 (a), see Christopher, 536 U.S. at 417-18,
a remedy that may be awarded as recompense in a denial-
of-access case that would not be available in any other
future litigation.
  This requirement of Christopher requires that a court
ascertain whether the plaintiff can maintain any other
action against the defendant who caused the deprivation
alleged in the underlying cause of action. If such a cause of
action exists and if the plaintiff can bring such a cause of
action to achieve the remedy sought in the underlying cause
of action, there is no remedy unique to a right-of-access
claim. In Christopher, for example, the plaintiff was unable
to describe any relief that she could get through the mainte-
nance of a right-of-access claim that she could not get from
her still viable causes of action against the original defen-
dants. Here, Mr. Snyder must demonstrate that he can
obtain a remedy in this denial-of-access claim that he could
not receive through the maintenance of another cause of
action against his former wife.


    a. Distinction between Christopher and Parratt
       v. Taylor
  This requirement, although superficially similar to the
paradigm employed in the procedural due process context,
see Parratt v. Taylor, 451 U.S. 527 (1981); Easter House v.
Felder, 910 F.2d 1387 (7th Cir. 1990) (en banc), is analyti-
cally quite distinct. Indeed, the Court in Christopher un-
derstandably makes no allusion to these due process cases.
34                                                    No. 01-1688

Parratt and its progeny stand for the proposition that a
random and unauthorized deprivation of property by a state
employee does not constitute a violation of procedural due
process so long as the state provides a meaningful post-
deprivation remedy for the loss. The paradigm is based on
the premise that a denial of due process does not take place
unless and until there has been the denial of an adequate
state remedy against the individual who has caused the
deprivation. By contrast, the paradigm employed by the
Supreme Court in the denial-of-access context of Christopher
asks not whether there is an alternate remedy against the
individual who has denied access to the court, but whether
there remains, despite the denial of access, a viable alter-
native remedy against the alleged wrongdoer identified in
the original suit.
   This distinction is quite compatible with the well-estab-
lished case law before Christopher, a jurisprudence that the
Supreme Court quite appropriately left undisturbed in
Christopher. Specifically noting that it had surveyed the
jurisprudence of the lower courts dealing with the right of
access to the courts, see Christopher, 536 U.S. at 413, the
Justices left undisturbed the significant body of circuit case
law that had held that the paradigm of Parratt is not
applicable to actions alleging a denial of the right of access
to courts.2



2
  Several circuits have held that Parratt “is irrelevant when the
plaintiff has alleged a violation of some substantive constitutional
proscription.” Augustine v. Doe, 740 F.2d 322, 329 (5th Cir. 1984)
(refusing to extend Parratt’s exhaustion of state remedies
requirement to a substantive due process claim premised on a
violation of the Fourth Amendment); see also Kauth v. Hartford
Ins. Co. of Illinois, 852 F.2d 951, 958 (7th Cir. 1988) (“[I]f sub-
stantive constitutional rights are violated, the constitutionally
recognized deprivation is complete at the time of the action, irre-
                                                       (continued...)
No. 01-1688                                                        35


2
   (...continued)
spective of the procedures available before or after the depriva-
tion.” (internal quotations omitted)); Morello v. James, 810 F.2d
344, 348 (2d Cir. 1987) (“Intentional substantive violations of
constitutional rights are not subject to the rule of Parratt.”); Pruitt
v. City of Montgomery, 771 F.2d 1475, 1484 n.19 (11th Cir. 1985)
(“[I]t is clear that the rationale of Hudson [v. Palmer, 468 U.S. 517
(1984),] and Parratt does not apply to alleged violations of substan-
tive constitutional rights, such as the Fourth Amendment rights
implicated here.”).
   Parratt has been limited to the area of procedural due process.
The case law of this court admits to but one exception to ths rule.
In order to not eviscerate the holding of Parratt, we have held that
“[w]hen a plaintiff brings a substantive due process claim
predicated on the deprivation of a state-created property interest,
she must show that the state violated some other substantive con-
stitutional right or that state law remedies are inadequate.” Veterans
Legal Def. Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003); see
also Gable v. City of Chicago, 296 F.3d 531, 541 (7th Cir. 2002); New
Burnham Prairie Homes, Inc. v. Vill. of Burnham, 910 F.2d 1474,
1480 (7th Cir. 1990); Kauth, 852 F.2d at 958. In these cases, it is
sound to impose the additional requirement because the substan-
tive right “comes not from the Constitution, but from state law.”
Schaper v. City of Huntsville, 813 F.2d 709, 718 (5th Cir. 1987).
  Indeed, many circuits squarely have held that Parratt does not
apply to claims for denial of access to the courts. See Zilich v.
Lucht, 981 F.2d 694, 696 (3d Cir. 1992) (“Where, as in the case at
hand, a prisoner’s complaint alleges the taking of legal property
that results in the denial of his access to the courts, the Parratt/
Hudson analysis cannot, and does not, apply.”); Harrison v.
Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1428 n.10 (8th
Cir. 1986) (“Since the Harrisons have alleged a violation of a
substantive constitutional right independent of the Fourteenth
Amendment due process clause simpliciter, the existence of an
adequate state remedy under the Parratt analysis is irrelevant.”);
Simmons v. Dickhaut, 804 F.2d 182, 185 (1st Cir. 1986) (“That
Simmons’ legal property was taken does not convert this case to a
                                                       (continued...)
36                                                     No. 01-1688



2
  (...continued)
procedural due process/deprivation of property claim. It is decisive
that the harm complained of is not simply the taking of property,
protected by the due process clause, but the taking of legal
property resulting in denial of access to the courts, protected as a
substantive, constitutional right. And the Parratt analysis does
not apply where the alleged violation concerns a substantive,
fundamental right.” (internal citation omitted)); Jackson v.
Procunier, 789 F.2d 307, 310 (5th Cir. 1986) (holding that Parratt
does not apply to a claim for intentional denial of access to the
courts). The only opinion that is directly to the contrary is a
concurring opinion from the Sixth Circuit. In Skewel v. City of
River Rouge, 119 F.3d 1259 (6th Cir. 1997), the plaintiff alleged
that the defendants denied her access to the courts by concealing
certain evidence relating to her husband’s death. The court held
that the plaintiff ’s failure to make some attempt to gain access to
the courts prevented her recovery. See id. at 1264. The court rea-
soned that “[a] plaintiff cannot merely guess that a state court
remedy will be ineffective because of a defendant’s actions.
Rather, the plaintiff must present evidence that the defendant’s
actions actually rendered any available state court remedy
ineffective.” Id. In a concurring opinion, Judge Merritt criticized
the court for failing to make clear that the rationale of Parratt
applies with equal force to right-of-access claims. He reasoned:
       The standard for a “right-of-access-to-the-courts” claim,
     whether treated under the First Amendment as part of
     the right “to petition the government for a redress of
     grievances” or as a procedural due process claim, should
     require that the plaintiff allege and prove that the state’s
     judicial process does not provide fair procedures to rem-
     edy the wrong alleged. Proof of the lack of adequate state
     remedies is required by Hudson v. Palmer, 468 U.S. 517,
     104 S.Ct. 3194, 82 L.Ed. 393 (1984), and Vicory v. Walton,
     721 F.2d 1062 (6th Cir. 1983), in procedural due process
     cases and should be required in judicial access cases. It
     seems elementary that the federal right of access to the
     courts is not abridged when the state courts remain just
                                                        (continued...)
No. 01-1688                                                  37

This reading of Christopher is also consistent with the
Supreme Court’s overall approach in Christopher. In
Christopher, the plaintiff had several claims pending against
the defendants for direct harm (including intentional in-
fliction of emotional distress) in addition to her denial-of-ac-
cess claim. The plaintiff’s denial-of-access claim was not
premised on the loss of an opportunity to sue, but rather, on
“the loss of an opportunity to seek some particular order of
relief.” Id. at 414. Although the plaintiff could not “obtain
in any present tort action the order she would have sought
before her husband’s death, the order that might have
saved her husband’s life,” neither could she “obtain any such
order on her access claim.” Id. at 421. Thus, any relief the
plaintiff could obtain on her access claim, she also could obtain
on the counts for direct harm currently pending against the
defendants in the district court.


      b. Remedy available to Mr. Snyder
  I believe that Mr. Snyder, acting pro se, and without the
guidance of Christopher, which was rendered long after the
district court ruled, has met, albeit minimally, the require-
ment that he show that the remedy he seeks in this denial-
of-access case is not available to him in a lawsuit against
his former wife. In this respect it must be recalled that, in
his initial complaint in state court, Mr. Snyder sought
immediate injunctive relief against his then-wife on the
ground that she was in sole possession of his assets, had a
power of attorney and, unless stopped by a judicial order,
would dissipate those assets. Despite the laconic nature of
his pro se complaint, Mr. Snyder did state in his brief in


2
    (...continued)
       as open to provide a remedy as the federal courts.
Id. at 1265 (Merritt, J., concurring).
38                                                     No. 01-1688

opposition to Mr. Nolen’s motion to dismiss that a writ of
mandamus “would not have been effective as plaintiff’s
former wife is believed to have liquidated and dissipated
assets at the time plaintiff attempted to obtain the requested
relief and she left the jurisdiction of Saline County within
a few months thereafter.” R.27. This court has held that
“facts alleged in a brief in opposition to a motion to dismiss
(indeed, even facts alleged for the first time on appeal) as
well as factual allegations contained in other court filings
of a pro se plaintiff may be considered when evaluating the
sufficiency of a complaint so long as they are consistent
with the allegations of the complaint.” Gutierrez v. Peters,
111 F.3d 1364, 1367 n.2 (7th Cir. 1997).3 I believe that these
allegations, when read as we must read pro se submissions,
adequately set forth Mr. Snyder’s allegations that Mr.
Nolen’s actions deprived him of a time-sensitive opportunity
to secure his assets before they were dissipated by his
former wife. In short, Mr. Snyder has alleged that, because
he was unsuccessful in obtaining immediate judicial control
of his property because of Mr. Nolen’s actions, he has
suffered an injury that only can be remedied completely by
a denial-of-access action against Mr. Nolen. At this stage of
the proceedings, the court must accept this allegation.4


3
   See also Murphy v. Walker, 51 F.3d 714, 718 n.8 (7th Cir. 1995)
(“[W]e may, when reviewing 12(b)(6) dismissals, consider new
factual allegations raised for the first time on appeal provided
they are consistent with the complaint.” (internal quotation marks
omitted)); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992)
(“[T]he court should consider allegations contained in the other
court filings of a pro se plaintiff, such as those in Swofford’s Ob-
jections to the Report and Recommendation of the magistrate
judge.”).
4
    The burden of proving the inadequacy of other relief falls on Mr.
                                                      (continued...)
No. 01-1688                                                     39

                                C.
    1. Causation requirement
   Having explored the requirements of Christopher, there
remains one more issue that we must confront with respect
to the adequacy of the allegation of a denial of access to the
courts. As we have noted earlier, the case law requires that
a plaintiff establish that he actually was injured by the
activity that constituted the denial of access. Here,
Mr. Snyder will have to demonstrate at some point in the
litigation that the alleged harm was caused by the alleged
action of Mr. Nolen rather than as a result of his own fail-
ure to seek immediate redress from Mr. Nolen’s decision
through a petition for writ of mandamus to the state trial
court. Our case law makes clear that the imposition of an
exhaustion requirement on a fundamental right such as the
constitutional right of access to the courts is not permissi-
ble. See Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951,
958 (7th Cir. 1988) (“[I]f substantive constitutional rights are
violated, the constitutionally recognized deprivation is
complete at the time of the action, irrespective of the
procedures available before or after the deprivation.”
(internal quotations omitted)). Nevertheless, the Supreme


4
  (...continued)
Snyder. If the parties were to discover, either through the
deposition of Mr. Snyder’s former wife and/or a subpoena duces
tecum served upon her pursuant to Federal Rule of Civil Proce-
dure 45, that she has not “dissipated” Mr. Snyder’s assets, or that
she retains sufficient assets to compensate Mr. Snyder for his loss,
then Mr. Snyder would be able to secure adequate relief through
other means. In that event, the evidence would not substantiate
Mr. Snyder’s allegation that he has suffered an injury which can
be remedied only through a denial-of-access action, and Mr. Nolen
would be entitled to judgment as a matter of law. Indeed, al-
though in my opinion not susceptible to dismissal, this matter
may well be susceptible to resolution at summary judgment.
40                                               No. 01-1688

Court has acknowledged that a showing of “actual injury”
is a prerequisite to the maintenance of a cause of action for
denial of access to the courts. See Lewis v. Casey, 518 U.S.
343, 349 (1996).
   In Lewis, the Supreme Court held that an inmate claim-
ing denial of access to the courts “cannot establish relevant
actual injury simply by establishing that his prison’s law
library or legal assistance program is subpar in some
theoretical sense.” Id. at 351. Instead, the inmate “must go
one step further and demonstrate that the alleged shortcom-
ings in the library or legal assistance program hindered his
efforts to pursue a legal claim.” Id. Expounding upon the
type of injury that would satisfy this requirement, the
Court stated: “He might show, for example, that a com-
plaint he prepared was dismissed for failure to satisfy some
technical requirement which, because of deficiencies in the
prison’s legal assistance facilities, he could not have known.
Or that he had suffered arguably actionable harm that he
wished to bring before the courts, but was so stymied by
inadequacies of the law library that he was unable even to
file a complaint.” Id.
  Following Lewis, this court stated in Tarpley v. Allen
County, 312 F.3d 895, 899 (7th Cir. 2002), that no violation
of the right of access to the courts occurs “in the absence of
actual injury, by which [the Supreme Court] means the
hindrance of efforts to pursue a nonfrivolous legal claim.”
Applying this standard, the court went on to hold that
“[w]hile the jail’s lack of resources might have posed a
theoretical problem, . . . without evidence that the defen-
dants prevented him from pursuing a nonfrivolous legal
action, he cannot show that his constitutional right was
violated.” Id. Similarly, in May v. Sheahan, 226 F.3d 876,
883 (7th Cir. 2000), we stated that, in order to prove a vio-
lation of the right of access to the courts, “a plaintiff must
demonstrate that state action hindered his or her efforts to
No. 01-1688                                                  41

pursue a nonfrivolous legal claim and that consequently the
plaintiff suffered some actual concrete injury.” Applying
this standard, the court held that the plaintiff’s allegation
that he “has been detained longer than would otherwise be
necessary if he could go to court” was “sufficient to state an
access to the courts claim.” Id. Although these cases fall
within the first category of denial-of-access cases as Christo-
pher describes them, see Christopher, 536 U.S. at 413-14,
this fundamental requirement that the plaintiff show that
he was harmed by the actions of the defendant endures.


  2. Application
  Mr. Nolen’s alleged act of removing Mr. Snyder’s plead-
ings from the court’s docket clearly hindered Mr. Snyder’s
efforts to pursue a nonfrivolous legal claim. It is not clear,
however, that Mr. Nolen’s act was sufficient to cause Mr.
Snyder “actual injury.” Illinois provides its litigants with a
specific remedy through a writ of mandamus to address
situations such as the one that Mr. Snyder allegedly faced
when Mr. Nolen withdrew his papers without the court’s
permission. See 705 Ill. Comp. Stat. 25/11. Although Mr.
Snyder makes no reference to this remedy in his second
amended complaint, he did state in his brief in opposition to
Mr. Nolen’s motion to dismiss that a writ of mandamus
“would not have been effective as plaintiff’s former wife is
believed to have liquidated and dissipated assets at the
time plaintiff attempted to obtain the requested relief and
she left the jurisdiction of Saline County within a few months
thereafter.” R.27. As noted earlier, facts alleged in a brief in
opposition to a motion to dismiss may be considered in
assessing the adequacy of the complaint. Thus, I believe
that Mr. Snyder’s complaint alleges, albeit minimally, that
it was Mr. Nolen’s action that deprived Mr. Snyder of the
opportunity to obtain viable relief from the state court. Need-
42                                                No. 01-1688

less to say, an allegation is hardly proof, but at this stage of
the proceedings, the pleading is adequate to avoid dismissal.


                              II
  Because I believe that at least at the pleading stage, the
operative version of the complaint states adequately the
deprivation of the federal constitutional right of access to
the courts, I also would reach the question of qualified im-
munity—whether the law was sufficiently clear, at a mean-
ingful level of generality, that the alleged actions of Mr.
Nolen amounted to a deprivation of Mr. Snyder’s right of
access to the courts. As of 1996, it was clearly established
by Supreme Court precedent that the First Amendment
right to petition the government includes the right to file
civil actions that have a reasonable basis in law or fact.
Also, lower court cases, including John L. v. Adams, 969
F.2d 228 (6th Cir. 1992), and Jackson v. Procunier, 789 F.2d
307 (5th Cir. 1986), made clear that this right extended to
prisoners, and there was no reason to believe otherwise.
There is certainly no more direct way to interfere with a
plaintiff’s access to the courts than to refuse to file his
pleadings or to remove them from the docket once filed.


                         Conclusion
  For these reasons, I would reverse the judgment of the
district court and remand the case to the district court for
further proceedings.
No. 01-1688                                         43

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-13-04
