783 F.2d 874 (9th Cir. 1986), 84-4228, Darring v. Kincheloe

Docket Nº:84-4228.
Citation:783 F.2d 874
Party Name:David D. DARRING, Plaintiff-Appellant, v. Larry KINCHELOE, Superintendent of the Washington State Penitentiary, Defendant-Appellee.
Case Date:February 24, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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783 F.2d 874 (9th Cir. 1986)

David D. DARRING, Plaintiff-Appellant,


Larry KINCHELOE, Superintendent of the Washington State

Penitentiary, Defendant-Appellee.

No. 84-4228.

United States Court of Appeals, Ninth Circuit

February 24, 1986

Submitted Nov. 25, 1985.[*]

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David D. Darring, in pro. per.

Carol A. Smith, Asst. Atty. Gen., Olympia, Wash., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before BARNES, FARRIS and CANBY, Circuit Judges.

BARNES, Senior Circuit Judge:

David Darring ("Darring"), a former prisoner and "jailhouse" lawyer at the Washington State Penitentiary in Walla Walla, Washington, appeals the district court's dismissal of his pro se, section 1983 action requesting injunctive relief and damages against the state prison superintendent. The district court granted the superintendent's motion for summary judgment, finding that Darring's request was moot because he had been transferred from the penitentiary at Walla Walla to another facility. We affirm.


Darring filed this action pursuant to 42 U.S.C. Sec. 1983 on April 16, 1984. His initial complaint, which was dismissed by the district court, 1 alleged that an Institutional Order 2 which was promulgated by the Washington State Penitentiary, violated

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Darring's constitutional right to meaningful access to the courts.

On April 19, 1984, Darring filed an amended complaint, naming prison Superintendent Kincheloe. Darring challenged the same Institutional Order in his amended complaint, and sought damages and injunctive relief. Although his arguments challenging the Institutional Order are somewhat unclear, we must liberally construe Darring's pro se claims. See, e.g., Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984).

We interpret Darring's arguments to be (1) his own rights to free communication and access to the courts are impaired by the institutional order, and (2) other inmates are deprived of their rights of access to the courts as a result of the order.

Superintendent Kincheloe filed a motion for summary judgment on August 6, 1984. Darring then filed a cross-motion for summary judgment. The district court granted Kincheloe's motion for summary judgment, denied Darring's cross-motion, and dismissed the complaint with prejudice on September 28, 1984. Darring timely appeals.


The issue presented on appeal is whether the district court properly dismissed Darring's action, finding that (1) the claim for injunctive relief was moot, and (2) the claim for damages failed to satisfy the "case or controversy" requirement of Article III.

We review a grant of summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983) 3. Our review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c), Twentieth Century-Fox Film Corp. v. MCA Inc., 715 F.2d 1327, 1328 (9th Cir.1983), and we must determine whether there is any issue of material fact and whether the substantive law was correctly applied. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984); Lojek, 716 F.2d at 677.

  1. Claim for Injunctive Relief.

    Darring was transferred from the State Penitentiary at Walla Walla to the McNeil Island Corrections Center on July 26, 1984. The district court found that there is neither a "reasonable expectation" nor "demonstrated probability" that Darring will again return to the State Penitentiary. Because of this, the court found that it is unlikely he will ever again be subject to I.O. 146.041. 4 We agree with the district court, that because of this, Darring's claim for injunctive relief is moot. See Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982).

  2. Claim for Damages

    The district court rejected Darring's damage claim on the ground that he failed to satisfy the "case or controversy" requirement of Article III. The court found that Darring had failed to come forward with sufficient facts to show that he had suffered any "actual injury" as a result of the Institutional Order. Thus, the court concluded that there was no justiciable case. We agree.

    Darring here argues that he does not need to show that he has suffered any actual injury, but only that the threat of injury to his rights resulting from the institutional order was sufficient to meet the "case or controversy" requirement. He also argues that he has third-party standing to object to the challenged order because it interferes with other inmates' rights of access to the courts. We reject both arguments.

    1. Personal Standing to Challenge the Order.

      We apply a two prong test in order to determine whether Darring has met the "case or controversy" requirement. In order

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      to have standing to challenge the constitutionality of the institutional order as it affects him personally, Darring must show (1) injury in fact, and (2) causality.


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