Carper v. DeLand

Decision Date06 May 1994
Docket NumberNo. 90-C-842 B.,90-C-842 B.
Citation851 F. Supp. 1506
PartiesWayne P. CARPER, et al., Plaintiffs, v. Gary W. DeLAND and Tamara Holden, Defendants.
CourtU.S. District Court — District of Utah




Brian M. Barnard, John Pace, UT Legal Clinic, Salt Lake City, UT, for plaintiffs.

Frank D. Mylar, Asst. Atty. Gen., Salt Lake City, UT, for defendants.


BOYCE, United States Magistrate Judge.

Plaintiff Wayne P. Carper, an inmate at the Utah State Prison (USP), filed suit against Gary W. DeLand, Executive Director of the Utah Department of Corrections (UDC), and Tamara Holden, the warden of the USP Southpoint facility, alleging that defendants do not provide inmates with constitutionally adequate access to the courts. Subsequently, counsel for plaintiffs filed an amended complaint adding Harvey Wayne Dorton, Andrew J. Conti, Jr., Donald R. Allen, William Babbel, and Julio Gary Valdez as plaintiffs. (Am.Compl., file entry 7.)

With the consent of the parties, the case was referred to the magistrate judge to conduct all proceedings and to order the entry of final judgment in accordance with 28 U.S.C. § 636(c). (Consent & order of reference, file entry 11.) During the course of the litigation, the court granted plaintiffs' request for a preliminary injunction requiring the contract attorneys to provide additional services to the named plaintiffs.1 (Order, file entry 71.) Thereafter, pursuant to a motion by plaintiffs, the court ordered that the case be certified as a class action under Rule 23 of the Federal Rules of Civil Procedure. (Order, file entry 100.) The class includes all current and future inmates in the Utah prison system who seek to exercise certain legal rights. (Order Re: Notice to Plaintiff Class at 2-3, file entry 108.)

Plaintiffs request only declaratory and injunctive relief and have sued defendants in both their personal and official capacities. (Am.Compl. at 3, 7-8.) The case is presently before the court on cross-motions for summary judgment.


The UDC contracts with local attorneys to provide legal assistance to inmates in the Utah prison system. In July 1990, defendant DeLand issued a memorandum stating that effective July 17, 1990, the legal services contract would no longer allow the contract attorneys to provide general legal assistance in civil matters. After that date, only two types of legal services would be provided: (1) assistance in preparation and filing of petitions for writs of habeas corpus in either federal or Utah state court; and (2) assistance in the preparation and filing of pleadings in lawsuits "designed to test conditions of confinement" in either federal or Utah state court. (Mem., attached to Am.Compl. as ex. M.)

Plaintiffs contend that since they do not have access to a law library and are not allowed assistance from inmate "writ writers," the minimal legal assistance provided by the contract is insufficient to allow them meaningful access to the courts. Plaintiffs allege that they have been denied legal assistance in various types of matters deemed outside the scope of the contract. They argue that they have a constitutional right to legal assistance in these matters and seek an injunction requiring the defendants to provide it. In opposition, defendants contend that the current legal contract provides all the assistance to which plaintiffs are constitutionally entitled.


Summary judgment should be entered if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party moving for summary judgment bears the initial burden of informing the court of the basis of its motion. It may do so by identifying portions of the record that demonstrate that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

In response, the nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. If the nonmoving party fails to meet this burden, summary judgment is mandated. Id. In such a case, no genuine issue of material fact exists because a complete failure of proof of an essential element of the party's claim necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. at 2552-53.


In support of their motion for summary judgment, plaintiffs state that the named plaintiffs or members of the plaintiff class have sought and been denied assistance with the following types of claims:

(a) divorce actions — prosecuting or defending; instituting or defending enforcement or contempt proceedings; instituting or defending modification proceedings;
(b) prosecuting or defending personal injury matters; intentional and unintentional torts;
(c) civil rights actions under 42 U.S.C. § 1983 against defendants other than employees or agents of the UDC;
(d) workers' compensation claims;
(e) claims for breach of contract;
(f) petitions for writs of certiorari to the United States Supreme Court;
(g) securing case law and procedures regarding a pending civil rights case being handled pro se;
(h) a small claims court action;
(i) securing case law and procedures regarding a pending criminal appeal being handled pro se;
(j) defending crime-related property forfeiture actions (k) defending state tax assessments based upon illegal possession of controlled substances;
(l) adoptions — prosecuting or defending termination of parental rights;
(m) name changes;
(n) expungements;
(o) paternity actions — prosecuting or defending;
(p) real property disputes;
(q) probate matters;
(r) out-of-state litigation;
(s) Veterans' Administration matters: discharge upgrades, termination of benefits, suits regarding loan guaranties;
(t) defense of collection matters;
(u) prosecution of collection matters or for recovery of property; and,
(v) bankruptcies.

(Pls.' Statement Undisputed Facts Supp.Mot. Summ.J. at 6-8, file entry 64.)

In opposition to summary judgment, defendants assert that plaintiffs have raised for the first time in their motion for summary judgment an issue concerning whether the contract should provide for legal assistance in filing civil rights suits that are unrelated to an inmate's incarceration. Defendants state that this question is clearly outside the scope of the pleadings.

Plaintiffs' basic claim in this case is that the current UDC legal policy does not provide them with adequate assistance in civil matters. In their amended complaint, plaintiffs alleged that they had been denied assistance in filing civil rights suits arising out of events at a halfway house and in a county jail prior to their current incarceration. (Am. Compl. at 5, file entry 7.) The court believes that plaintiffs' claim that they are entitled to assistance in preparing and filing all civil rights cases, even those not arising out of their incarceration by the UDC, falls within the scope of the pleadings and will be addressed.

Defendants state that plaintiffs have failed to show that any member of the plaintiff class has a workers' compensation claim. Andrew J. Conti, one of the original named plaintiffs, alleged that he been denied assistance in preparing and filing a workers' compensation claim. (Conti aff., file entry 38.) However, defendants state that plaintiff Conti has no standing to pursue this claim because he was released on parole in February 1991. (Hinckley aff., file entry 61.) Since Conti has been released, this claim is mooted as to him. Plaintiff Babbel states that during his incarceration, he has sought assistance from private attorneys in pursuing a workers' compensation claim, but has been unable to find anyone willing to help him. (Babbel aff. of Sept. 7, 1991 ¶ 15, file entry 111.) It is unclear whether plaintiff Babbel presently has a claim for assistance in this area. However, this is the type of claim which is capable of repetition, yet evading review. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Napier v. Gertrude, 542 F.2d 825 (10th Cir.1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed.2d 765 (1977). Accordingly, the claim regarding assistance with workers' compensation claims is properly before the court and will be considered.

Defendants also state that plaintiffs have produced no evidence to show that anyone in the plaintiff class has any of the claims listed in paragraph 10(j-v) of plaintiffs' statement of undisputed facts in support of their motion for summary judgment. An examination of plaintiffs' affidavits and depositions indicates that no member of the plaintiff class has asserted a claim relating to defending forfeiture actions, defending state tax assessments based upon illegal possession of controlled substances, expungements, paternity actions, real property disputes, probate matters, Veterans' Administration matters, defense of collection matters, or bankruptcy. Although Mr. Freestone, a USP contract attorney, stated in his deposition that he has refused to assist inmates with some of these claims, Mr. Freestone's statement is insufficient to raise these claims on behalf of the plaintiff class. Since no member of the plaintiff class has asserted the above listed claims, the court will not address them.

The record indicates that members of the plaintiff class have asserted claims relating to adoptions, (Valdez aff., file entry 99), termination of parental rights, (Allen affs., file entries 35, 57; Vigil aff., file entry 186, Martinez aff., file entry 149), out-of-state litigation,2 (Mangum aff., file entry 146; Jolivet aff., file entry 187), name changes, (Floyd aff., file entry 141), and prosecution...

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