Gluth v. Kangas
| Decision Date | 23 December 1991 |
| Docket Number | 90-16593,Nos. 90-15735,s. 90-15735 |
| Citation | 951 F.2d 1504 |
| Parties | Alan L. GLUTH, Thomas A. Rice, Donald K. Nelson, David M. Bandstra, Plaintiffs-Appellees, v. William E. KANGAS, Defendant, and Arizona Department of Corrections, Defendant-Appellant. Alan L. GLUTH; Thomas A. Rice; Donald K. Nelson; David M. Bandstra, Plaintiffs-Appellees, v. ARIZONA DEPARTMENT OF CORRECTIONS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas Dennis, Asst. Atty. Gen. (argued), and Lynne W. Abney, Asst. Atty. Gen. (on briefs), Phoenix, Ariz., for defendants-appellants.
M. Robert Dauber, Arizona State University, Law School Clinic, Tempe, Ariz., for plaintiffs-appellees.
Appeal from the United States District Court for the District of Arizona.
Before: BRUNETTI and RYMER, Circuit Judges, and ZILLY, * District Judge.
The request for publication in this case is GRANTED. The memorandum disposition filed July 26, 1991, 940 F.2d 668, is redesignated as an opinion, as authored by Judge Rymer.
Inmates at the Arizona State Prison at Florence brought suit against the Arizona Department of Corrections under 42 U.S.C. § 1983 claiming that its policies concerning the prison law library denied them meaningful access to the courts. The district court granted summary judgment in favor of the plaintiff class and issued an injunction mandating certain changes in the operation of the library. The Department now appeals the district court's grant of summary judgment for the plaintiffs, the denial of its own motion for summary judgment, and various rulings concerning class certification (No. 90-15375). The Department also claims that the injunction exceeds constitutional standards (No. 90-16593). We affirm the district court in all respects.
The Department moved for summary judgment on the grounds that the inmates' claims were moot, relying exclusively on its post-litigation promulgation of a new access policy. As the Department conceded at oral argument, resting a summary judgment motion on the new policy alone was indeed "overreaching." It is well established that the mere voluntary cessation of alleged unlawful activity does not render those allegations moot. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.1985). The new proposed policy only provided, in a conclusory declaration, that "reasonable" access would be afforded. This did not deprive the court of a justiciable controversy. Even assuming that the policy meets constitutional standards on its face, given the Department's history of allegedly denying access arbitrarily and the vagueness of the new policy, it cannot be said "with assurance" that there is no "reasonable expectation" that the alleged violations will recur. Id.
Moreover, the Department provided no facts to support its claim that the inmate access situation had changed at all. Because the policy did not "completely and irrevocably eradicate[ ] the effects of the alleged violation," the district court was not obligated to wait and see how the new policy worked out. Id. The inmates opposed the Department's motion with affidavits detailing deficiencies in library access, legal assistant and law library clerk training, and problems with the indigency standards; they also asserted that the new policy had not been implemented. The district court did not err in concluding that summary judgment for the Department, based entirely on the mere promulgation of a new policy, was not appropriate.
In opposition to the inmates' cross-motion for summary judgment, the Department again relied solely on the argument that the new access policy rendered the claims moot. The Department adduced no other facts, and did not attempt to argue that a material issue of fact precluded summary judgment. We agree with the district court's observation that the Department's strategy "backfired."
The Department's new policy did not undermine any part of the factual record submitted in support of the inmates' motion for summary judgment. Because those facts remained uncontroverted and showed that unconstitutional conditions existed at the prison, the inmates were entitled to summary judgment on all three counts.
In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court held that the fundamental constitutional right of access to the courts requires that the state provide "adequate law libraries or adequate assistance from persons trained in the law." Id. at 828, 97 S.Ct. at 1498. We have held that "[i]f the state denies a prisoner reasonable access to a law library, the state must provide that prisoner legal assistance." Toussaint v. McCarthy, 801 F.2d 1080, 1110 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987).
According to the inmates' undisputed statement of facts, the Department established no qualifications for legal assistants and provided no training for the position. An inmate's application to be a legal assistant will be approved if the inmate is able to read and write. "Dependence on untrained inmate paralegals as an alternative to library access does not provide constitutionally sufficient access to the courts." DeMallory v. Cullen, 855 F.2d 442, 447 & n. 3 (7th Cir.1988). Bounds requires the assistance of those "trained" in the law; the appearance of minimal capacity to assist other inmates alone plainly does not suffice. 1
Undisputed facts indicate that unreasonable restrictions prevent inmates from securing adequate access to the law library; the prison arbitrarily denies requests for library "turnouts" despite space availability; inmate requests for library access are lost or ignored; inmates are permitted insufficient time in the library; inmates are given inadequate notice of library turnouts; turnouts are scheduled so as to conflict with other activities; and inmates are arbitrarily removed from the library. Statistics also show that there is a one-in-four chance that an inmate's request for library access will be denied, even though the library is rarely full.
"The existence of an adequate law library does not provide for meaningful access to the courts if the inmates are not allowed a reasonable amount of time to use the library." Lindquist, 776 F.2d at 858. "Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid." Leeds v. Watson, 630 F.2d 674, 676 (9th Cir.1980) (quoting Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974)). The undisputed facts show that the Department has not allowed inmates a reasonable amount of time in the law library and has a history of arbitrarily denying access.
It is the state's burden to provide meaningful access and to demonstrate that its chosen method is adequate. Storseth v. Spellman, 654 F.2d 1349, 1352 (9th Cir.1981). The Department has not done so here.
Under the Department's indigency policy, an inmate may apply for indigency classification if his prison account balance is less than $12 and his income from all sources during the previous thirty day period has not exceeded $12. We agree with the district court's conclusion that this policy, which according to uncontroverted facts forces inmates to choose between purchasing hygienic supplies and essential legal supplies, is "unacceptable."
The uncontroverted facts show that it costs at least $46 to purchase necessary personal items and legal supplies and that inmates must purchase hygiene items to avoid punishment under prison regulations. Thus, the inmates have demonstrated that the indigency policy's $12 threshold, which has been in effect since 1983 and has never been increased, fails to accommodate those inmates who have no money to purchase legal supplies when they are needed. See Souder v. McGuire, 516 F.2d 820, 824 (3d Cir.1975); Temple v. Ellerthorpe, 586 F.Supp. 848, 851 (D.R.I.1984). The district court properly concluded that the Department's indigency policy, which does not allow inmates to purchase required hygiene supplies as well as the legal supplies necessary to litigate their claims, is inconsistent with the constitutional requirements stemming from Bounds. 2
The Department also challenges several rulings of the district court concerning class certification and the propriety of continuing the case as a class action. These contentions are without merit.
After a pretrial status conference at which both parties apparently agreed that the case should proceed as a class action, the district court entered an order finding that Fed.R.Civ.P. 23(a) had been met and provisionally certifying a class. After each party submitted a proposed class definition, the court adopted the inmates' proposal and issued an order defining the class. 3 The Department now contends that it never "agreed" that the case should proceed as a class action, and that the district court never conducted any factual investigation to determine whether Rule 23 was satisfied. In addition to the fact that the Department does not direct us to where in the record it ever objected to the district court's class certification order, "a party who does not provide the trial court with suggested amended or alternative findings on the issue to be reviewed on appeal is not in a favorable position to complain about their incompleteness." Lindquist, 776 F.2d at 857. We therefore see no reason to disturb the district court's decision to certify the class.
The Department also contends that the district court erred in denying its motion to decertify the class when Gluth was transferred...
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