Koerschner v. Warden, 3:05-cv-00587-ECR-VPC.
| Decision Date | 28 August 2007 |
| Docket Number | No. 3:05-cv-00587-ECR-VPC.,3:05-cv-00587-ECR-VPC. |
| Citation | 508 F.Supp.2d 849 |
| Parties | Allen KOERSCHNER, Petitioner, v. WARDEN, Nevada State Prison, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
Allen Koerschner, Lovelock, NV, pro se.
Jamie Resch, Nevada Attorney General's Office, Las Vegas, NV, for Respondents.
The Order (# 42), filed August 22, 2007, is amended to read as follows:
This habeas matter under 28 U.S.C. § 2254 comes before the Court on the petitioner's motion (# 29) for appointment of counsel, his supplemental motion (# 32) for appointment of counsel, and his motion (# 33) "for intervention," which also seeks appointment of counsel or, in the alternative, certain specified relief regarding the legal resources available at Lovelock Correctional Center ("Lovelock").
Petitioner's motions follow upon a recent policy change at Lovelock that eliminates direct physical access to the prison law library, for all inmates, and replaces such physical access instead with a "paging system," under which inmates can request a maximum of five specified legal materials at a time, and which operates together with limited assistance by other inmates. The minimum qualifications required to become an inmate legal assistant or law clerk under the policy is that the prospective assistant be able to read and write at a ninth grade reading level and have no disciplinary infractions in the preceding twelve months.
Petitioner also raises issues' regarding the failure to update certain legal texts and the removal of typewriters. The Court does not reach these additional issues in light of the disposition reached herein.
The Court notes at the outset, as it will reiterate again subsequently in this order, that the only matter before the Court is a request for appointment of counsel by the petitioner in this habeas action. This is not a prison civil rights action. Although the Court will discuss the legal resources available in the prison, and further will discuss related legal principles and prison civil rights case law regarding the right of access to the courts, it does so solely in connection with a determination of whether the interests of justice require the appointment of counsel for this petitioner in this habeas action.
Against that backdrop, the record presented reflects the following.
Petitioner Allen Koerschner seeks to set aside his 1997 Nevada state conviction, pursuant to a jury verdict, for two counts of sexual assault with a minor. He is sentenced to two consecutive life sentences with the possibility of parole after ten years.
Koerschner currently is held in protective custody because of his conviction as a sex offender. It generally is necessary to segregate sex offenders from other inmates for safety and security reasons.1
Respondents have submitted an affidavit by Robert L. LeGrand describing the policy change regarding law library access at Lovelock. LeGrand is the Associate Warden of Programs at Lovelock, and, as such, he is the direct supervisor for the Administrative Assistant IV who oversees the operation and administration of the prison law library.
According to LeGrand, Lovelock is "fairly unique to the NDOC system, as the yard is divided into multiple populations which include, General Population, three units of Protective Segregation, a Disruptive Group Management unit, and two Administrative Segregation units, all requiring separation from each other." LeGrand attests that "[t]his type of segregation is necessary to properly address the Department's safety and security issues posed by a large number of sex offenders, gang members, ex-gang members and other concerns all requiring segregation from other inmates."2
LeGrand attests that "[t]he arrangement of the housing units and the segregation requirements make it impossible to move inmates to a central location for a physical law library." He attests that, accordingly, Lovelock has changed over "to electronic searches and a request-driven system," and, subsequent to the changeover actually going into effect, "has been formulating their Institutional Procedure for law library operations." He notes that a draft has been created and currently is in the final approval process. He attaches a copy of the final draft to his affidavit. The draft is presented as reflecting current operating practice.3
Petitioner has submitted a sworn declaration stating that, prior to the policy change, there was a satellite law library inside his protective segregation unit, Housing Unit 6, that could be physically accessed by the inmates within that segregated unit. According to Koerschner, the satellite library contained most of the required materials and books. However, he states that the satellite library in the unit was permanently closed in late 2006, and the hundreds of law books previously stocked therein were removed in June 2007.4
Respondents do not directly address why an alleged inability to move segregated inmates to a central law library required the elimination of a satellite library housed entirely within a segregation unit.
Section V(E) of the final draft provides for the following paging system:
2. Inmates may have up to five (5) materials (case law, reference, search results, books [in units where books are permitted], rules, regulations, laws, and other miscellaneous Westlaw print-outs) checked out and in their possession at one time.
a. Legal materials described within this paragraph may be checked out for one consecutive three. (3) day period of time only.
b. Legal materials described within this paragraph may not be rechecked out on the same day they are returned, but may be requested again for check out one day
after their return. This rule disallowing "rechecks" makes it possible for all inmates to use these materials.
3. Inmates will check out Law Library materials as described in Section V(E)(2) above by completing an "NDOC Law Library CD-ROM Case Law Print Requests" form, which will be available from unit staff and/or the Unit Assistant. An "Inmate Request Form," or "kite," may be used to request Law Library checkout materials ONLY when the print request forms are otherwise unavailable for use.
4. Inmates having any other legal needs or concerns, which cannot otherwise be addressed with the Supervisor or Unit Assistant should submit their needs or concerns on an appropriate form addressed to the Supervisor or Legal Assistant. The Supervisor or Legal Assistant(s) may respond to such request as conditions warrant, i.e. may take immediate action to address the need or concern, may conduct research (Section V[F][2][d] below), or may postpone the resolution of the matter until the Supervisor's or Legal Assistant's next visit to the requesting inmate's unit. If deemed necessary, the Supervisor may summons [sic] the requesting inmate to the Law Library for the addressing of the need with the. Supervisor or Legal Assistant(s).
5. Except as may be otherwise allowed within other Sections of this Institutional Procedures, inmates must conduct all affairs relating to legal materials, legal copy work ... and legal supplies ... through and with the Unit Assistant assigned to their individual housing unit, during assigned days and hours for doing so....
# 36, Ex. B, Final Draft of Institutional Procedures ["Final Procedures Draft"], at 5-6.
It appears from the above-quoted Section V(E)(2), together with Section V(I)(1) of the policy, that an inmate, or at the very least an inmate such as petitioner in a segregated unit, may retain and review the legal materials ordered — including apparently even copies, of case printouts — for only a maximum of three days. It further appears that the inmate must return the copies of the previously ordered items before he can order five more cases or other items. Section V(E)(2) defines "legal materials" as "case law, reference, search results, books [in units where books are permitted], rules, regulations, laws, and other miscellaneous Westlaw print-outs." Section V(E)(2)(a) provides that such legal materials may be checked out for only one consecutive three-day period, subject to later rechecks. And Section V(I)(1) provides:
Inmates in segregated units will be allowed to retain I[sic] their person [sic] living area a maximum of five (5) legal materials (Section V(E)(2) above) for three (3) days and 14 pounds of legal papers. This rule excludes the possession of legal books in units in which the Law Library is not permitted to deliver books.
Final Procedures Draft, at 9. It thus would appear that an inmate in a segregated unit may not keep copies of legal cases for more than three days and may not have more than five research cases in his cell at one time.
Section III(c) of the policy provides for two types of inmate assistants pertinent to the present inquiry. The first type, "Legal Assistants," consists of "[i]nmates assigned to the Law Library performing research and providing the inmate population with forms, reference materials and information." The second type, "Unit Assistants," consists of "[i]nmates assigned to designated housing units/areas assisting the inmate population in the ordering and receiving of search requests, legal materials, forms, copy work, and supplies."5
Respondents assert in the briefing that "it is apparent from Exhibit `B' that the training and competition for law clerk positions is [sic] extensive."6 LeGrand, however, states only the following in his affidavit, without elaboration:
The inmate law library assistants receive individual training. They are paid well as inmate workers in the system, and there is great competition for their positions.
The policy itself, in contrast to both of the foregoing statements, states only the following minimum requirements to be an assistant, in Section V(C):
C. Prospective assistants must meet the following minimum criteria:
1. Must bea [sic] least 9th...
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