Carter v. Fair, 85-1794

• Decision Date: 14 March 1986
• Docket Number: No. 85-1794,85-1794
• Citation: 786 F.2d 433
• Parties: Ralph B. CARTER, et al., Plaintiffs, Appellants, v. Michael V. FAIR, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 433

786 F.2d 433

Ralph B. CARTER, et al., Plaintiffs, Appellants, v. Michael V. FAIR, et al., Defendants, Appellees.

No. 85-1794.

United States Court of Appeals, First Circuit.

Argued Jan. 9, 1986.

Decided March 14, 1986.

Barry Barkow, Boston, was on brief for plaintiffs, appellants.

Douglas J. Perry, Segal, Moran & Feinberg, Boston, was on brief for defendants, appellees.

Before COFFIN, BOWNES, and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

Plaintiffs-appellants, Ralph B. Carter, et.al., ask us to find that the lawyer assistance program at the Norfolk County Jail deprives them of meaningful access to the courts. For reasons discussed below, we affirm the district court's judgment for defendants.

I.

In 1977, a class action was brought by prisoners at six Massachusetts county prison facilities, alleging denial of their right to meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The case was submitted for judgment on the basis of affidavits, stipulations of fact, and memoranda of law. The district court found that conditions at five of the prisons violated the inmates' right of meaningful access to the courts, and ordered those facilities to submit proposed remedies that would insure meaningful access. The court also found, however, that the plaintiffs had failed to make the necessary prima facie showing that the assistance program at the Norfolk County Jail and House of Corrections was inadequate in providing inmates meaningful access to the courts. See Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir.1981). Plaintiffs filed a motion for reconsideration of the judgment in favor of Norfolk County, which was denied by the district court in a memorandum and order.

The only evidence submitted on the assistance program at the Norfolk County Jail was a five-page stipulation of facts and two affidavits from directors of legal aid services in Massachusetts. The stipulation of facts revealed the following. ¹ The Norfolk Jail has no law library. In its stead, the prison has an arrangement with the Norfolk County Bar Advocates Program through which one attorney is made available at the prison, each Thursday, for three hours. The attorneys rotate monthly and are paid $50 for each three-hour session. The attorneys are selected from a list of approximately twenty-five lawyers who have expressed a desire to work at the jail, and have an average of five years experience in legal practice.

Inmates make appointments to see the visiting attorneys by signing a sheet in the jail's "Inner Control Office" or by notifying any member of the custodial or social services staff. Notices of the program are posted in the human services area, dining room, and recreation hall, as well as in the manual that each inmate receives upon incarceration. The notice in the manual is read to those inmates who cannot read and translated for those who do not read English.

The visiting attorney meets separately with each inmate who has made an appointment, in a private, designated area in the prison library. Each week, an average of seven inmates sign up for the services and are seen by the attorney. There is no time limit on the counseling sessions except to the extent necessary to ensure that all inmates requesting assistance are seen. On one occasion, the visiting attorney stayed until 6:00 or 7:00 p.m. to address the questions asked that day. The attorneys meet with every inmate who has made an appointment; no inmate has ever been denied access to a visiting attorney for any reason.

The inmates raise legal questions in a variety of areas: questions about their sentences; "good work", work release, and parole status computations; divorce issues; access to prison programs; alleged brutality and mistreatment from guards and other prisoners; medical and dental care problems; disciplinary and classification proceedings; and various other civil rights violations. The assistance of the attorney is essentially limited to that which can be provided in the short, weekly session. The attorneys help inmates sort out factual details involved in their trials or sentencing so as to aid the inmate in making a clear presentation to the court in whatever pleading is filed. In addition, the attorneys familiarize the inmates with the necessary legal forms. In situations where time is needed to formulate an opinion, the inmates are informed that they will receive answers at the next session. The attorneys, however, do not perform substantial outside research of issues raised during these sessions. Nor are inmates generally provided with compilations of cases and citations addressing issues raised in contemplated or ongoing judicial proceedings. The jail does provide inmates with free photocopies of any material they request from the Norfolk County Bar Association library. The attorney advises inmates to contact their own attorneys of record for assistance when it is warranted.

The stipulation of facts also contained the following statement: "Some inmates have found Advocate assistance inadequate for the purposes of bringing cases seeking appropriate medical and dental treatment, access to institutional programs involving work release, furlough, and education, proper presentation of evidence in motions to revise and revoke sentences, immigration law concerns, and challenges to conditions of confinement and adequacy of administrative procedures." The stipulation of facts did not include any elaboration of this statement through the use of specific examples of inadequacy, apart from repeating the statement that counsel's assistance was essentially limited to the weekly sessions. No affidavits were submitted from inmates at the Norfolk jail stating they had found the program to be inadequate in particular ways in assisting them to prepare claims for court.

Plaintiffs' counsel stipulated at a status conference that the only affidavits submitted relative to Norfolk were affidavits from Mary Prosser, Director of Deer Island Legal Services and Lee Gartenberg, Director of Middlesex County Inmate Legal Services. Both of these affidavits detailed the extensive degree of legal representation that legal services lawyers provide to inmates in other county facilities in Massachusetts. The affidavits were designed to present the extent to which prisoners in other facilities tend to require legal assistance, and by implication, to establish that the Norfolk program was inadequate because it served fewer inmates per week than did these other legal services programs.

II.

It is undisputed that inmates have a fundamental constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). This right "requires prison...