Buise v. Hudkins

• Decision Date: 28 February 1978
• Docket Number: No. 77-1731,77-1731
• Parties: Roy BUISE, Plaintiff-Appellant, v. Donald HUDKINS, Individually and as Superintendent of the Indiana State Farm, et al., Defendants-Appellees. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 223

584 F.2d 223

Roy BUISE, Plaintiff-Appellant, v. Donald HUDKINS, Individually and as Superintendent of the Indiana State Farm, et al., Defendants-Appellees.

No. 77-1731.

United States Court of Appeals Seventh Circuit.

Heard Feb. 28, 1978.

Decided Sept. 26, 1978.

John D. Blumenthal, Indianapolis, Ind., for plaintiff-appellant.

Kermit R. Hilles, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before CUMMINGS and TONE, Circuit Judges, and McMILLEN, District judge. ^*

CUMMINGS, Circuit Judge.

Plaintiff is presently a prisoner confined in the Indiana State Prison in Michigan City, Indiana. In February 1975, he filed an amended complaint under the Civil Rights Act (42 U.S.C. § 1983) asserting that he was wrongfully transferred to the prison from the Indiana State Farm in Greencastle (Putnamville), Indiana, in March 1974 due to his attempts to assist other prisoners in the preparation of legal documents, to have a law library provided at the State Farm and to establish an inmate council at the State Farm. Five of the defendants are officers or employees of the State Farm and the sixth defendant is the Commissioner of the Indiana Department of Correction.

According to the amended complaint, on January 29, 1974, plaintiff, then a prisoner at the Indiana State Prison, was transferred to the Indiana State Farm to become its librarian. ¹ After his transfer, plaintiff served as a jailhouse lawyer in assisting other inmates in legal matters. Defendants allegedly told him not to assist other prisoners with their legal work. On March 13, 1974, defendant Badger, the Director of Treatment and Classification at the State Farm, assertedly wrote a memorandum to the warden of the Indiana State Prison indicating that plaintiff was being transferred back to that institution due to his legal activities at the State Farm. In part, the memorandum stated as follows:

"Mr. Buise has done well and is to be commended for his work in the library, however, his insistence in trying to establish a writ writing procedure and an inmate council at this institution has caused some problem for the staff. We feel it is in his best interest to be returned to your institution."

On the following day, plaintiff was transferred from the minimum security State Farm to the maximum security Indiana State Prison.

One of the theories of the complaint was that plaintiff's transfer to Michigan City because of his attempt to provide legal assistance to other prisoners and to establish a law library deprived him of constitutional rights. Defendants' refusals to permit a law library and to allow plaintiff to assist other State Farm prisoners with their legal problems are also said to have deprived him of constitutional rights. Plaintiff requested a declaratory judgment and an injunction requiring defendants to return him to the Indiana State Farm in his position as librarian and to provide an adequate law library. He also requested $20,000 in compensatory damages and $50,000 in punitive damages.

On July 8, 1977, the district court released its findings of fact and conclusions of law in this matter. The court found that defendant Badger told a counselor at the State Prison to advise plaintiff that his job assignment at the State Farm would be as a librarian and not as a writ writer. Both of them so advised plaintiff. During his stay at the State Farm, prisoners sought legal advice and assistance from plaintiff. Judge Steckler found that there was no institutional policy concerning inmates assisting each other in preparing legal papers on their own time but that there was an informal policy against inmates assisting other inmates with their legal problems while they were supposed to be performing an assigned duty. He also found that there was an informal policy against using the library as a writ room. State Farm had no law library, writ room or inmate council, and legal assistance from the Public Defender was available to inmates only on request. During his stay at the State Farm, petitioner sought the establishment of a law library, writ room and inmate council.

The district court also found that petitioner was transferred back to the State Prison partly because he sought to establish a law library, writ room and inmate council and because petitioner was pursuing (legal assistance) objectives during working hours. Judge Steckler stated that petitioner performed his duties in the library adequately and "completed his work early enough to allow free time." At the time of petitioner's transfer, defendant Badger wrote a letter commending petitioner's work in the library at the State Farm but stated that "in his opinion plaintiff had not lived up to the agreement on writ writing and that his efforts to establish a writ writing procedure and inmate council had caused some problems for the staff." Petitioner was returned to the Indiana State Prison on March 14 where the conditions were not as advantageous for plaintiff as those at the State Farm.

The district court concluded that at the time of his transfer, prison officials had the authority to transfer inmates at their discretion and specifically that they had the authority to return petitioner to the State Prison. The court also concluded that petitioner had no established right to be a writ writer while on duty and that he failed to prove any damages. We reverse and remand for the possible assessment of damages and injunctive relief.

I. CONSTITUTIONAL VIOLATIONS

Both parties appear to agree that plaintiff was transferred from the State Farm to the State Prison largely for four reasons (Tr. 149-150): ²

1. He was rendering legal assistance to other prisoners at the State Farm;

2. He was attempting to establish a law library there;

3. He was attempting to establish a writ department there;

4. He was attempting to establish an inmate council there.

Plaintiff contends that each of these activities is an impermissible basis for transfer and further contends that he has a right to render legal assistance and a right to an adequate law library. ³ The defendants insist that the transfer was proper and also dispute plaintiff's claimed rights to be a jailhouse lawyer and to have a law library available.

A. Jailhouse Lawyer Activities

While not so identified by the parties, two separate claims can be drawn from Buise's jailhouse lawyer activities. The first is Buise's claim that his own rights were violated when he was transferred assertedly in retaliation for his jailhouse lawyer activities, and the second is his claim on behalf of other inmates that their right of access to the courts was infringed by his transfer. There is no contention that plaintiff does not have standing to assert his own interests and Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718, establishes that he can raise the claims of the other inmates because in Johnson only the jailhouse lawyer was a party and yet the decision rested on the denial of access to the courts for his fellow inmates. See 393 U.S. at 487, 89 S.Ct. 747; accord Haymes v. Montayne, 547 F.2d 188, 191 (2d Cir. 1976), certiorari denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063; see generally Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962).

Although the district court found that plaintiff was transferred in part because he was writing writs during working hours the evidence is overwhelming that to the extent the transfer was based on writ writing, it was based on writ writing at any time and not during working hours. It is uncontradicted that plaintiff was ordered not to assist other prisoners in legal matters at any time, and apparently he was never told that this restriction applied only during working hours (Tr. 33, 72-73, 165, 166, 206, 207). Admittedly there is no documentary evidence of a policy limited to working hours. Moreover, while defendants claimed that the transfer was based on the fact that plaintiff "would not adhere to the institutional policy" (R. 165), they introduced only one incident showing a violation of the supposed informal policy against writ writing during working hours, ⁴ compared to the 25 times per day that advice was sought from Buise (Tr. 37). In this context, it was clearly erroneous to find that Buise was transferred for writing writs during working hours.

From the perspective of the remaining inmates, Buise's transfer for writing writs violated their constitutional right of access to the courts (Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718) if it left them without an alternate means of access to the courts. The defendants admit that no law library was available and do not deny that Buise was the State Farm's only jailhouse lawyer but insist that the availability of the Public Defender is sufficient to assure access.

It is well established, however, that the state bears the burden of demonstrating the adequacy of such an alternate means of access. See, E. g., Sostre v. McGinnis, 442 F.2d 178, 201 (2d Cir. 1971) (En banc ), certiorari denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740; 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254; Novak v. Beto, 453 F.2d 661, 664 (5th Cir. 1971), certiorari denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233; Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72, adds that mere availability is not enough and that the key inquiry is whether a "reasonably adequate opportunity" to present claimed violations of fundamental constitutional rights is provided. Here the state merely asked the district court to take judicial notice of an Indiana statute assertedly requiring that certain assistance be provided by the state's Public Defender, ⁵ and the only evidence adduced was Superintendent Hudkins' statement on cross-examination that the Public Defender's availability "was entirely at the discretion of the office of the public defender * * * people would write to them and they would come...