Bobby Ivey v. Michael K. Harney, Appeal of Illinois Department of Corrections

ILANA DIAMOND ROVNER, Circuit Judge,

concurring.

I agree with the court’s analysis of 28 U.S.C. § 2241(c) and the All Writs Act in the *187circumstances of this case, and I therefore join Judge Easterbrook’s opinion. I am not without some sympathy, however, for the district court’s objective in invoking the All Writs Act and issuing the transportation order below. Although I too believe that Congress has closed any avenue for judicial relief in this area, I am troubled by how that decision might affect the ability of prisoners like B.obby Ivey to pursue their constitutional claims in federal court. I offer the following thoughts in that regard.

It is axiomatic that individuals who are lawfully incarcerated in state correctional facilities have a constitutional right of access to the courts. See ante at 186. That right enables prisoners to enforce the Eighth Amendment’s assurance against cruel and unusual punishment, for if state custodians were able to limit the access of their charges to the courts, their conduct would effectively be insulated from judicial review, no matter how cruel or unusual. The right of access is therefore central to the protection of perhaps the most sacred of a prisoner’s constitutional rights.

Here, the State of Illinois did not prevent Ivey from petitioning the court, and because the district court was sufficiently impressed by his complaint, it appointed diligent counsel to assist Ivey in developing and prosecuting his claim. Yet when appointed counsel informed the district court that expert medical testimony would be required, the district court faced a considerable quandry — the only available medical expert was located in Chicago and could not examine Ivey at Taylor-ville.1 Citing the costs and risks involved in transporting Ivey to Chicago, the Illinois Department of Corrections (“IDOC”) refused, although it agreed, as it must, that the physician could examine Ivey at Taylorville. Believing that the IDOC’s position would prevent Ivey from vindicating his constitutional rights in federal court, Judge Castillo intervened, invoking the All Writs Act to order that the IDOC take Ivey to Chicago for a medical examination.

Absent section 2241(c), I would readily endorse the district court’s action, as it would seem to follow logically from the prisoner’s constitutional right of access to the federal courts. Indeed, what good is access to the courts if the only means of proving one’s case may be completely foreclosed by the State? What’s more, should the State’s refusal in these circumstances escape judicial scrutiny, or should district judges be given some discretion to decide that a prisoner-plaintiff may be entitled to a limited writ in an extraordinary case? These are perplexing questions, but they ultimately are not for me or for this court to decide. Congress has addressed the issue, and I agree with my colleagues that the restrictive language of section 2241(c) deprives the district court of any authority to intervene.

Yet it seems to me that Congress’ decision to foreclose that option puts prisoners in a difficult bind. Although section 2241(c) on its face does not restrict a prisoner’s right of access to the courts, it may effectively nullify that right in a particular case. The present circumstances are an apt example, for despite counsel’s unwillingness to concede the point at argument (see ante at 186), Ivey surely has little chance of succeeding below without expert medical testimony to support his claim. To be sure, one may question Ivey’s representation that the Chicago physician was the only expert available to him, but the district court apparently accepted that unchallenged assertion, and I would be reluctant on this record to second-guess the court’s judgment in that regard. But perhaps more importantly, I fear the State will use today’s decision to discourage similar writs when the circumstances for judicial intervention may be far more compelling.

'Consider, for example, the following hypo-theticals we posed to the State’s counsel at oral argument: Assume that Ivey’s Chicago physician had traveled to Taylorville and had examined him there, that the examination uncovered preliminary evidence that might support Ivey’s claim, but that the physician insisted on further testing that could only be performed at an outside medical facility. Alternatively, assume that the initial examination itself required equipment that only was *188available at an outside facility. The IDOC asserted in response to our questions that the district court would lack authority to order the prisoner transported for testing in either circumstance. My colleagues no doubt would agree that the State’s position is consistent with the interpretation of section 2241(c) we adopt today. But if the effect of that decision is to deprive the plaintiffs in my hypotheticals of any opportunity to succeed on their claims, then I must question whether Congress’ allocation of the balance of power in these circumstances is indeed appropriate.

Perhaps in the more compelling circumstances of my hypotheticals, the State would be willing to accommodate the prisoner’s need for outside medical testing so long as it was reimbursed for its costs. Cf. ante at 186. But does the State have any incentive to cooperate after our decision today? In this case, defendants all are county officials, as Ivey’s alleged injuries occurred at a county jail. Yet in most of these cases, the defendants will be employees of the State of Illinois, and can we really expect the State to cooperate with a prisoner’s attempt to develop a ease against one of its own? Cf. Anderson v. Romero, 42 F.3d 1121, 1122-23 (7th Cir.1994) (detailing IDOC’s refusal to cooperate with counsel for a deceased prisoner-plaintiff by providing information in its possession as to next of kin). I fully appreciate the State’s interest in avoiding the costs and risks attendant to compliance with the district court’s writ, but I am troubled that Congress has seen fit to provide such unfettered authority to potentially-interested state officials, while at the same time depriving our judicial officers of any discretion to further the interests of justice in a particular case.

. Apparently, no one disputed counsel’s representation that the proposed physician was the only expert available or that he was unable to travel to the prison.