Bee v. Utah State Prison

• Decision Date: 10 July 1987
• Docket Number: No. 85-2528,85-2528
• Citation: 823 F.2d 397
• Parties: Daniel Howard BEE, Plaintiff-Appellant, v. UTAH STATE PRISON; Kenneth Schulsen, as Warden of Utah State Prison; William Milliken, as Director of Utah State Div. of Corrections; Barbara R. Burnett, Ladd Christensen, Rev. France A. Davis, Dr. Jean B. White, Dr. Bart Wolthuis, Aaron H. Flores, and Ronald Boyce, as members of Board of Corrections of State of Utah; and State of Utah, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 397

823 F.2d 397

Daniel Howard BEE, Plaintiff-Appellant, v. UTAH STATE PRISON; Kenneth Schulsen, as Warden of Utah State Prison; William Milliken, as Director of Utah State Div. of Corrections; Barbara R. Burnett, Ladd Christensen Rev. France A. Davis, Dr. Jean B. White, Dr. Bart Wolthuis Aaron H. Flores, and Ronald Boyce, as members of Board of Corrections of State of Utah; and State of Utah Defendants-Appellees.

No. 85-2528.

United States Court of Appeals Tenth Circuit.

July 10, 1987.

Brian M. Barnard, Utah Legal Clinic, Salt Lake City, Utah, for plaintiff-appellant.

Brent A. Burnett, Asst. Atty. Gen. (David L. Wilkinson, Atty. Gen., and William T. Evans, Asst. Atty. Gen., with him, on brief), Salt Lake City, Utah, for defendants-appellees.

Before LOGAN, SEYMOUR, and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.

Daniel Howard Bee, an inmate of the Utah State Prison, brought this action for damages and declaratory and injunctive relief against the prison and various Utah state officials, claiming that defendants' failure to provide him with adequate legal assistance denied him his constitutional right of access to the courts. ¹ The trial court denied Bee's request for class certification and then granted defendants' motions for summary judgment. On appeal, Bee contends that (1) the prison's legal assistance program was inadequate to meet his special needs as an illiterate, and (2) the trial court improperly refused to certify a class of indigent, functionally illiterate inmates. We conclude that the legal assistance program at the prison adequately protected Bee's right of access to the courts. We therefore affirm the trial court's summary judgment order. Because of our ruling on this issue, we need not decide whether the request for class certification was improperly denied.

I.

At the time this action was filed, plaintiff was an inmate at the Utah State Prison and was without sufficient funds to secure the assistance of counsel. Bee is able to read only a few very simple words and able to write only his name. Defendants concede that he is functionally illiterate. During his incarceration, Bee filed several civil rights actions, challenging various conditions of his confinement. He argues in the present suit that the prison failed to provide him with adequate assistance in pursuing these claims.

In lieu of a law library, the prison has contracted with a private law firm to provide legal counseling to inmates and to assist in the preparation and filing of pro se civil pleadings. Inmates are provided with legal assistance only through the initial pleading stage of their suits. They are not furnished with attorneys who appear as counsel of record in their civil actions.

In addition to receiving assistance from the private law firm in preparing and filing his complaints, plaintiff received some help in reading and responding to other documents filed in his suits. This aid came primarily from non-lawyer prison officials and from other inmates. Plaintiff contends, however, that the assistance from prison officials produced a conflict of interest and that the help from inmates was undependable and available only at the cost of giving up food, money, and other consideration.

II.

An indigent state prison inmate has a constitutional right of access to the courts. See, e.g., Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 1494-95, 52 L.Ed.2d 72 (1977). In Bounds, the Supreme Court held that this right of access "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." Id. at 828, 97 S.Ct. at 1498. The Court has emphasized that it has not extended the right of access "further than protecting the ability of an inmate to prepare a petition or complaint." Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974); see also Bounds, 430 U.S. at 828 n. 17, 97 S.Ct. at 1498 n. 17 ("our main concern here is 'protecting the ability of an inmate to prepare a petition or complaint' ") (quoting Wolff ).

In an attempt to comply with the constitutional mandate of Bounds, the Utah State Prison established the legal assistance program described previously. This court was faced with a challenge to the prison's assistance program in Nordgren v. Milliken, 762 F.2d 851 (10th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). In Nordgren, several inmates claimed that the program failed to protect their right of access because it did not provide the assistance of counsel beyond the preparation and filing of the initial pleadings in their suits. Id. at 852. The inmates argued that meaningful access to the courts requires the state to provide counsel at all stages of trial court proceedings, not just at the initial pleading stage. Id. at 854. After reviewing the Supreme Court right-of-access cases, we rejected the inmates' argument and concluded as follows:

"[W]e are persuaded that we should not hold that the right of access to the courts requires more than the assistance of counsel through completion of the complaint for a federal habeas or civil rights action."

Id. at 855. Accordingly, we held that the inmates had not shown any constitutional infirmities in the prison's program. Id.

Bee contends that the program is nevertheless inadequate to protect the right of access of an indigent inmate who is also illiterate. His argument in essence is that his ability to pursue his...