In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2663

Michael Massey and Richard L. Steagall,

Plaintiffs-Appellants,

v.

Suzanne Wheeler, Unit Manager at the Federal
Correctional Center in Pekin, Illinois, in her
individual and official capacities,
David Helman, Warden at the
Federal Correctional Center in Pekin,
Illinois, in his individual and
official capacities, Janice Bonneville,
Paralegal Specialist at the Federal
Correctional Center in Pekin, Illinois,
in her individual and official capacities
and Michael Schallmoser, Case Manager at the Federal
Correctional Center in Pekin, Illinois, in his
individual and official capacities,

Defendants-Appellees.


Appeal from the United States District Court
for the Central District of Illinois, Springfield Division.
No. 98 C 1348--Jeanne E. Scott, Judge.


Argued February 23, 2000--Decided July 20, 2000



      Before Flaum, Kanne and Diane P. Wood, Circuit Judges.

      Kanne, Circuit Judge. Inmate Michael Massey and
his attorney, Richard L. Steagall, brought a two-
count complaint against the staff of the Federal
Correctional Center at Pekin, Illinois, where
Massey is incarcerated, alleging violations of
their constitutional rights. The plaintiffs
allege that the prison’s restrictions on inmates’
unmonitored telephone calls violate their First
and Fifth Amendment rights. The district court
dismissed Count One without prejudice for failure
to exhaust available administrative remedies.
Count Two, which Steagall brought both as a
third-party asserting Massey’s rights and in his
own name asserting his own constitutional rights,
also was dismissed. The district court dismissed
without prejudice the third-party claim for
failure to exhaust administrative remedies and
dismissed with prejudice Steagall’s first-party
action for failure to state a claim. We affirm
the district court’s order and further hold that
Steagall lacked standing to bring the third-party
action in this case.

I.   History

      While incarcerated, inmate Massey has carried on
a continuous course of litigation, including
actions against prison officials related to
medical care he received some time ago, see
Massey v. Helman, 196 F.3d 727 (7th Cir. 1999)
("Massey I"), and a civil forfeiture action in
Indiana state court. To facilitate this
litigation, Massey contends that he requires
unmonitored telephone calls with his attorneys at
least weekly because monitored telephone calls,
personal visits and legal mail are insufficient.
From March 1996 to September 1998, Massey made
weekly unmonitored telephone calls to his
attorneys in Illinois and Indiana. In October
1998, Massey had no pending court dates and was
receiving sparse legal mail and no visits from
attorneys. The prison staff decided that Massey
did not need weekly or twice weekly unmonitored
calls as he demanded, because other means of
communication were adequate. Federal regulation
28 C.F.R. sec. 540.103 prohibits the prison from
placing frequency limitations on unmonitored
telephone calls to an inmate’s attorney "when the
inmate demonstrates that communication with
attorneys by correspondence, visiting, or normal
telephone use is not adequate." Between October
1998 and February 1999, Massey placed twenty-
eight unmonitored calls, still more than one a
week. The procedure for making unmonitored
telephone calls placed an administrative burden
on the prison staff because unmonitored telephone
lines are available only in a certain area of the
prison, and a staff member must be present at all
times to ensure the inmate does not place calls
to anyone other than his lawyer. Massey placed
far more unmonitored telephone calls than any
other prisoner, and according to prisoner
records, almost half of the unmonitored calls
placed from Massey’s unit were from Massey.
Massey further alleged that on three occasions,
prison staff illegally opened his legal mail.

      Massey saw a prison conspiracy behind the
limitation on his weekly unmonitored calls, and
he and Steagall complained that the other means
of unmonitored communication were not adequate.
When an inmate feels any of his rights have been
infringed, Federal Bureau of Prisons (BOP) rules
provide an administrative procedure to remedy the
problem. Massey took a step toward initiating the
administrative remedy by requesting BOP forms BP-
9, BP-10 and BP-11. The prison staff denied this
request because inmates must file BP-9 before
requesting BP-10. Rather than simply providing
Massey with BP-9, defendant Suzanne Wheeler
precipitated this litigation by engaging in a
hyper-literal reading of Massey’s request and
refused to provide him any forms because he
incorrectly requested three forms at once. Not to
be outdone in the pursuit of absurdity, rather
than respond with a request for form BP-9, Massey
filed this lawsuit.

      The prison officials moved to dismiss the suit
on the grounds that the Prison Litigation Reform
Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321-
355 (codified as amended in scattered sections of
18 & 42 U.S.C.) ("PLRA") requires inmates to
exhaust available administrative remedies before
filing suit in district court. The defendants
moved to dismiss Steagall’s action for failure to
state a claim and his third-party action on the
same administrative exhaustion ground as Massey’s
own claim. The district court granted the motions
without prejudice as to Count One and with
prejudice as to Count Two.

II.    Analysis

      Massey believes the district court erred in
holding that administrative exhaustion could be
decided at the pleading stage under Rule 12(b)(1)
and (6) motions. Fed. R. Civ. P. 12(b)(1), (6).
Steagall appeals the Rule 12(b)(6) dismissal of
his case for failure to state a constitutional
injury. We review de novo the decisions regarding
both dismissals. See Kaplan v. Shure Bros., Inc.,
153 F.3d 413, 417 (7th Cir. 1998). In so doing,
we accept all well-pleaded facts as true and draw
all reasonable inferences in the plaintiff’s
favor. See Gossmeyer v. McDonald, 128 F.3d 481,
489 (7th Cir. 1997).

A.    Massey’s claims

      As we recently stated in Perez v. Wisconsin
Dep’t of Corrections, 182 F.3d 532, 534-35 (7th
Cir. 1999), the PLRA contains a "comprehensive
administrative exhaustion requirement," which
states that "[n]o action shall be brought with
respect to prison conditions . . . by a prisoner
. . . until such administrative remedies as are
available are exhausted." 42 U.S.C. sec.
1997e(a). Although not depriving the district
court of subject-matter jurisdiction, the
provision requires dismissal of any case in which
an available administrative remedy has not been
exhausted. See Perez, 182 F.3d at 535. As Massey
knows too well from our decision in Massey I, 196
F.3d at 732-33, dismissal on the pleadings is
proper for failure to plead the exhaustion of all
administrative remedies. Massey does not, and
clearly could not, plead that he exhausted all
administrative remedies. Instead, he avers that
there are "no available administrative remedies"
and, conversely, that "any administrative
remedies that are claimed to exist are in fact a
sham." As we stated in Perez, 182 F.3d 536-37,
and Massey I, 196 F.3d at 733, there is no
"futility exception" to the PLRA exhaustion
requirement. His failure to plead exhaustion of
all administrative remedies mandates dismissal of
his claim without prejudice.

      Massey’s only route around this inescapable
conclusion relies on the argument that dismissal
for failure to exhaust administrative remedies is
not proper at the pleading stage because
exhaustion is an affirmative defense. See Massey
I, 196 F.3d at 735 (recognizing administrative
exhaustion as an affirmative defense); King v.
Cooke, 26 F.3d 720, 724 (7th Cir. 1994). As
required by Rule 8(c), the defendants raised the
administrative-exhaustion defense in response to
Massey’s complaint, but moved to dismiss for
failure to state a claim rather than for summary
judgment under Rule 56, which allows for the
consideration of matters outside the pleadings.
Fed. R. Civ. P. 8(c), 56. The district court
chose to treat the defendants’ motion under Rule
12(b)(6) rather than convert the motion to one
under Rule 56 by considering matters outside of
the complaint. See Fed. R. Civ. P. 12(b); Ribando
v. United Airlines, Inc., 200 F.3d 507, 509-10
(7th Cir. 1999). While conversion would not
change the outcome in this case, it seems clear
from the district court’s order that the
complaint was found to be deficient on its face,
without reference to other pleadings or exhibits,
and therefore judgment under Rule 12(b)(6) was
proper as to Count One.

B.   Steagall’s Third-Party Complaint

      In Count Two, Steagall attempts an end-run
around the administrative exhaustion requirement
by bringing Massey’s claims as a third-party
plaintiff. In its motion to dismiss, the
government addressed in a somewhat backward
fashion the issue of whether Steagall had
standing to bring a claim on Massey’s behalf, but
the district court declined to reach the third-
party standing issue. Instead, it assumed
Steagall was a proper party and decided that his
third-party claim should fail on administrative
exhaustion grounds. However, because the third-
party standing issue disposes of part of this
case, it would have been better for the district
court to decide it, which we do here.

      The prohibition on third-party claims is a
prudential standing limitation which recognizes
that claims are best prosecuted by those who
actually have been injured, rather than by
someone in their stead. See Warth v. Seldin, 422
U.S. 490, 499 (1975). The Supreme Court has
established a narrow exception to this doctrine,
allowing third-party claims when the third-party
plaintiff can show a close relationship between
the first and third party and some obstacle to
the first party’s ability to protect his own
interest. See Powers v. Ohio, 499 U.S. 400, 411
(1991); Shimer v. Washington, 100 F.3d 506, 508
(7th Cir. 1996).

      When the third-party plaintiff seeks to
vindicate First Amendment rights, the Supreme
Court has relaxed the requirement that the
plaintiff show some obstacle to the first party’s
ability to bring his own claim. See Secretary of
State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 956 (1984). Understanding that some parties
who could challenge a statute on First Amendment
grounds may choose to forgo litigation to avoid
the risk of punishment or retribution, the Court
has allowed third parties to bring claims
"without regard to the ability of the other to
assert his own claims." Id. at 957. We find the
Munson line of cases inapplicable to Massey’s
claim because Massey does not bring a facial
challenge to an allegedly overbroad statute.
Massey does not attack the constitutionality of
any prison regulation, practice or policy; rather
he claims that certain prison officials have
violated a constitutionally valid speech
limitation. There is no allegation or hint that
anyone’s speech would be chilled if Steagall
cannot bring the third-party claim, and therefore
the Supreme Court’s command that prudential
standing requirements be relaxed does not apply.
Even so, we doubt the Supreme Court in Munson
intended to allow third-party claims when the
only obstacle to the first party was a statutory
prerequisite such as the exhaustion provision.

      Returning to the third-party standing test, we
must determine whether any obstacle prevents
Massey from bringing his own claim such that we
should allow Steagall to bring the claim in
Massey’s place. This inquiry is a short one.
Massey has in fact brought his own claim, and the
only hindrance he faces is the administrative
exhaustion requirement in the PLRA. The litigious
Massey ran head on into the third-party standing
rule once before when he attempted to bring a
claim through the prison doctor, Dr. John Otten.
See Massey I, 196 F.3d at 740-42. In that case we
held that "[t]here is no allegation . . . which
suggests that the inmates have any obstacle
preventing them from properly asserting their own
rights." Id. at 741. The same is true here. In
fact, despite his record of losing cases, Massey
seems quite expert at bringing them. We therefore
hold that Steagall does not have standing to
assert a third-party claim to vindicate Massey’s
rights.

C.   Steagall’s First-Party Complaint

      In Count Two, attorney Steagall also alleges
that his own First Amendment and Fifth Amendment
due process rights were violated by the prison’s
actions in limiting his unmonitored communication
with Massey. Steagall, however, developed his
complaint poorly and cited almost no authority
supporting his claim of constitutionally
protected rights. The defendants moved to dismiss
under Rule 12(b)(6) on the ground that Steagall
failed to allege a constitutionally cognizable
injury. The district court held that inmates’
attorneys have a right identical to any member of
the public to associate or communicate with
inmates, but that the prison can place
restrictions on that communication that are
reasonably related to legitimate penological
interests. See Thornburgh v. Abbott, 490 U.S.
401, 409 (1989).

      The district court understandably struggled in
sorting out Steagall’s complaint. Although
putatively styled as a simple two-count action,
the complaint rambles through fifty-six pages,
paragraph after paragraph, alluding to various
constitutional guarantees and intermixing
argument and repetitive recitations of facts. In
the future, Steagall would do well to heed the
Rule 8 requirement of a "short and plain
statement" of the claim, Fed. R. Civ. P. 8(a)(1),
and avoid forcing the court to decipher his
complaint, as the district court did here.
Reading the complaint "generously" as we must,
see Abel v. Miller, 824 F.2d 1522, 1529 (7th Cir.
1987), Steagall asserted the denial of (1) his
First Amendment right to communicate with a
prisoner, see Thornburgh, 490 U.S. at 407, and
(2) his Fifth Amendment due process right to
communicate with his client for the purposes of
practicing law and accessing the courts./1 See
Dreher v. Sielaff, 636 F.2d 1141, 1143 (7th Cir.
1980). But see Abel, 824 F.2d at 1534 (holding
that there was no clearly established right to
access prisons during threat to prison’s security
to effectuate attorneys’ First and Fifth
Amendment rights).

      Thornburgh acknowledged several categories of
First Amendment-based access to prisoners,
including the rights of journalists, family
members and magazine publishers, as well as
attorneys, to communicate with inmates. 490 U.S.
at 407-08. While we also have recognized the
importance of unmonitored communication between
attorneys and clients, see Adams v. Carlson, 488
F.2d 619, 631 (7th Cir. 1973), no cases cited by
Steagall, nor any found by this Court, establish
a right to the unrestricted and unlimited private
telephone contacts Steagall sought. Abel, one of
the few Fifth Amendment cases expressly dealing
with an attorney’s right of access, limited its
holding to the specific facts of that case, which
involved security measures during a prison
disturbance. 824 F.2d at 1534. Steagall misses
badly when he attempts to use Abel for the
proposition that the "court had no problem with
the existence of such a right in the attorneys."
Rather, the court held that under those facts,
the defendants were entitled to summary judgment
because the plaintiffs failed to show they had a
clearly established right of access to their
inmate clients during a prison disturbance under
the First and Fourteenth Amendments. Id. The
Court held that attorneys must be free from
retaliation for exercising their constitutional
rights, but it distinguished that claim from one
of a right to access prison inmates. Id. Abel,
which is factually distinct for the case at bar,
does not vest attorneys with a personal right to
unlimited and unmonitored telephone contacts with
prisoners, and Steagall’s gross assertion that
Abel stands for such a proposition must fail. The
other cases Steagall cited to support his
personal claim of constitutional injury similarly
are inapplicable. See, e.g., City of Chicago v.
Morales, 527 U.S. 41, 52 (1999) (holding that
freedom to loiter is protected by Due Process
Clause); Zinermon, 494 U.S. at 124 (discussing
due process claims of patients voluntarily
admitted to mental hospitals).

      The rule is clear from Thornburgh, and in
Dreher in the Fourteenth Amendment context, 636
F.2d at 1143, that attorneys enjoy rights of
access to prison inmates, but that the prison may
impose reasonable restrictions on the exercise of
that right. In an analogous circumstance, the
Third Circuit held that reasonable restrictions
on an attorney’s visits to a prison did not
"constitute an extinguishment or significant
alteration of the right to practice law" and
therefore failed to state a claim for denial of
due process. Sturm v. Clark, 835 F.2d 1009, 1013
(3d Cir. 1987). Nothing alleged in Count Two of
Steagall’s complaint justifies a contrary
conclusion in this case. According to his
inartfully-drafted complaint, Steagall enjoyed
frequent and free communication with his client,
including more unmonitored conversations than
apparently any other inmate. The prison’s only
limit on this free-flowing dialogue was to deny
unmonitored telephone calls on less than a
handful of occasions when it reasonably appeared
that other means of communication were adequate.
The district court was correct in finding that
the complaint, on its face, showed only
reasonable restrictions on Steagall’s right to
communicate with Massey and therefore failed to
state a claim.

       The prison regulation directing the prison
warden not to place unnecessary frequency
limitations on unmonitored telephone calls may
implicate Massey’s rights, but it does not create
any right in the public to unmonitored
communication with an inmate. Steagall does not
and cannot claim that he has been denied access
to or communication with an inmate, only that
limiting the number of unmonitored telephone
calls has made it more difficult for him to
communicate with Massey. However, the Supreme
Court in Thornburgh rejected the rule that
prisons must employ the least restrictive means
for regulating communication between non-inmates
and inmates. 490 U.S. at 411. Steagall’s entire
claim seeks to imbue his preference for
unmonitored telephone calls with constitutional
status, but the cases interpreting the public’s
First Amendment right to communicate with
prisoners demand no such result. Steagall’s claim
does not attack the constitutionality of the
prison regulations in any way, therefore we do
not need to determine whether that regulation
itself is reasonably related to a legitimate
penological interest. Instead, Steagall merely
seeks to enforce for his own benefit the prison’s
partial prohibition on limiting unmonitored
calls.

      Finally, Steagall asserts that the opening of
Massey’s legal mail by prison officials violated
his constitutional right to communicate with his
client, but the cases establishing such a right
prohibit only the opening of such mail outside
the presence of the inmate and characterize the
right in terms of the prisoner’s First, Sixth and
Fourteenth Amendment rights. See, e.g., Wolff v.
McDonnell, 418 U.S. 539, 576-77 (1974).
Therefore, Steagall failed to state a claim for
violation of his constitutional rights by the
opening of Massey’s legal mail, whether in or out
of Massey’s presence. Since he does not allege a
valid First or Fifth Amendment injury and cannot
state a claim for protection of a right under the
prison regulations, Steagall has failed to state
a claim upon which relief could be granted. Count
Two was properly dismissed with prejudice.

III.   Conclusion

      For the foregoing reasons, we Affirm the district
court’s order dismissing Count One without
prejudice and Count Two with prejudice.

/1 Steagall errantly cites Fourteenth Amendment
cases, see e.g., Zinermon v. Burch, 494 U.S. 108,
124 (1990); Dreher v. Sielaff, 636 F.2d 1141,
1143 (7th Cir. 1980), for the proposition that
attorneys have due process rights to access the
courts. The Fourteenth Amendment creates a due
process right against the states, ("[N]or shall
any State deprive any person of life, liberty, or
property without due process of law") while the
Fifth Amendment guarantees due process by the
federal government.
