Nordgren v. Milliken

Decision Date20 May 1985
Docket NumberNo. 82-1668,82-1668
Citation762 F.2d 851
PartiesSteven Richards NORDGREN, Douglas Yoakam, Ray Dodge and John C. Bolsinger, Plaintiffs-Appellants, v. William MILLIKEN, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Brian M. Barnard, Salt Lake City, Utah (John W. Porter, Salt Lake City, Utah, was also on the brief), for plaintiffs-appellants.

Douglas C. Richards, Asst. Atty. Gen., Salt Lake City, Utah (David L. Wilkinson, Atty. Gen., Salt Lake City, Utah, was also on the brief), for defendants-appellees.

Before HOLLOWAY, Chief Judge, BARRETT, Circuit Judge, and BOHANON, District Judge. *

HOLLOWAY, Chief Judge.

In this civil rights action plaintiffs, indigent Utah prison inmates, allege that during their incarceration they were denied their right to meaningful access to the courts in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Summary judgment was entered in favor of defendants and plaintiffs appeal. We affirm.

I

Plaintiffs are involved in legal actions which they are attempting to prosecute or defend pro se. Specifically plaintiff Nordgren claims that he is the defendant in a paternity suit and that he is the plaintiff in a federal civil rights action brought against the Salt Lake County Jail and the County Sheriff which was dismissed, appealed, remanded and is pending in the United States District Court for the District of Utah.

Plaintiff Yoakam alleges that he is seeking to modify his divorce decree and that he has filed an action against Salt Lake County and various officers thereof for conversion of his guns. Plaintiff Dodge claims that he has several cases pending in the United States District Court in the nature of civil rights actions against the staff of the Utah State Prison as a result of due process and/or cruel and unusual punishment violations. Plaintiff Bolsinger claims that he has several actions pending in the United States District Court in the nature of civil rights actions against the staff of the Salt Lake County jail and other county officials as a result of the treatment he received while incarcerated in the County Jail. I.R. 156-64.

Plaintiffs say that they petitioned the trial courts on various occasions to appoint legal counsel to represent them beyond the initial stages and these courts refused to do so. Id. at 157. 1 Plaintiffs also say that two legal aid organizations in Salt Lake County will not assist them, id. at 173, and that defendants have refused to provide a law library or provide legal assistance beyond assisting plaintiffs in filing the initial pro se pleadings. Id. at 157.

The United States magistrate in his report and recommendation on the parties' motions for summary judgment found that "[t]he State of Utah has elected to provide at the prison minimal law library facilities and services of contract attorneys to assist inmates in preparing pleadings to initiate court actions and proceedings." 2 Id. at 233. The magistrate also found that "[t]here is no constitutional requirement that the assistance of lawyers be provided to the plaintiffs by the defendants in the defense or prosecution of civil actions beyond the pleading stage." Id. at 239. This report of the magistrate was accepted and defendants' motion for summary judgment was granted by the district judge. Id. at 245-48.

II

Plaintiffs argue on appeal that defendants have refused to maintain an adequate and complete law library at the Utah State Prison so that they can properly represent themselves and that there is no adequate alternative to a law library to provide Utah prison inmates with meaningful access to the courts. Plaintiffs say that meaningful access to the courts entails legal assistance at all stages of judicial proceedings at the trial level, not just the initial pleading stage; that legal assistance must be available to prison inmates for all types of civil cases; and that legal assistance must be provided to inmates regardless of whether their claims are deemed meritorious by prison officials.

Defendants say that they do not claim to have an adequate law library at the prison. Brief of Appellees 3. They contend, however, that there is an adequate alternative to a law library which provides inmates at the Utah State Prison with meaningful access to the courts. They say that the obligation of the State to provide meaningful access to the courts is satisfied through the services of contract attorneys; that there is no constitutional requirement that the assistance of attorneys be provided to inmates in the defense or prosecution of civil actions beyond the initial pleading stage; and that what is "meaningful" access to the courts must be considered in light of "reasonableness" in the prison setting, giving deference to prison administrators' discretion.

"The right of access to the courts is basic to our system of government, and it is well established today that it is one of the fundamental rights protected by the Constitution." Ryland v. Shapiro, 708 F.2d 967, 971 (5th Cir.1983). Referring to Chambers v. Baltimore & Ohio Railroad Co., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907), the Ryland court stated that the Supreme Court "viewed the right of access to the courts as one of the privileges and immunities accorded citizens under article 4 of the Constitution and the fourteenth amendment." Ryland, 708 F.2d at 971. The Court found "in the first amendment a second constitutional basis for this right of access: 'Certainly the right to petition extends to all departments of Government. The right of access to the courts is indeed but one aspect of the right of petition.' " Id. (citing California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972) ). "A third constitutional basis for the right of access to the courts is found in the due process clause." Id. at 972. In Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974), the Supreme Court stated that "[t]he right of access to the courts, upon which Avery [Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) ] was premised, is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights." 3

Access to the courts "encompasses all the means a defendant or petitioner might require to get a fair hearing from the judiciary on all charges brought against him or grievances alleged by him." Gilmore v. Lynch, 319 F.Supp. 105, 110 (N.D.Cal.1970), aff'd sub nom, Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971) (per curiam). That a state prison inmate has a right of access to the courts was first enunciated in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Annot., 23 A.L.R. Fed. 1, 14 (1975). There the Supreme Court stated that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus." Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). In Johnson v. Avery 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969), the Court held that "unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation ... barring inmates from furnishing such assistance to other prisoners." (footnote omitted). And in Wolff, 418 U.S. at 579, 94 S.Ct. at 2986, the Court stated that "the demarcation line between civil rights actions and habeas petitions is not always clear. The Court has already recognized instances where the same constitutional rights might be redressed under either form of relief."

In Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977), the Supreme Court defined the duty of the States to protect the right of prisoners to access to the courts by holding that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." (footnote omitted). See Ward v. Kort, 762 F.2d 856, (10th Cir.1985), filed today. Because defendants do not claim that they have an adequate law library at the prison, Brief of Appellees 3, we must determine whether the State of Utah provides prison inmates with adequate assistance from persons trained in the law. Ward v. Kort, supra.

Plaintiffs contend that meaningful access to the courts entails legal assistance at all stages of judicial proceedings at the trial level, not just the initial pleading stage. Defendants deny that there is any constitutional requirement of such extensive assistance by attorneys. In Wolff, 418 U.S. at 576, 94 S.Ct. at 2984, the Supreme Court stated that "the Fourteenth Amendment due process claim based on access to the courts, Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), has not been extended by this Court to apply further than protecting the ability of an inmate to prepare a petition or complaint." In Bounds, 430 U.S. at 828, 97 S.Ct. at 1498, the Court held that the "right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers ...." (emphasis added). And the Court stated that "... our main concern here is 'protecting the ability of an inmate to prepare a petition or complaint,' Wolff v. McDonnell, 418 U.S., at 576 ...." Id. at 828 n. 17, 97 S.Ct. at 1498 n. 17; Ward v. Kort, supra, at 859.

Most courts have not interpreted Bounds as extending the right of access to the courts so as to require special...

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