Casey v. Lewis, No. 91-16513

Decision Date23 September 1993
Docket NumberNo. 91-16513
Parties2 A.D. Cases 1820, 2 ADD 908, 4 NDLR P 323 Fletcher CASEY, Jr., et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Samuel A. LEWIS, Director, Arizona Department of Corrections, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Edward G. Hochuli, Kathleen L. Wieneke, Daniel P. Struck, and David C. Lewis, Jones, Skelton & Hochuli, Phoenix, AZ, for defendants-appellants.

Stuart H. Adams, Jr., Elizabeth Alexander, Adjoa A. Aiyetoro, and David C. Fathi, ACLU Nat. Prison Project, Washington, DC, Alice L. Bendheim, Phoenix, AZ, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Arizona.

Before: GOODWIN, FARRIS, and PREGERSON, Circuit Judges.


FARRIS, Circuit Judge:


The Arizona Department of Corrections appeals an order granting partial summary judgment in favor of a certified plaintiff class of Arizona state prisoners and enjoining the Department from (a) prohibiting contact visits between inmates and their attorneys, and (b) denying food-service jobs to HIV-positive 1 inmates. The inmates brought this action under 42 U.S.C. Sec. 1983 (1988) and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1988). We vacate the injunction. On the issue of attorney-inmate contact visitation, we reverse the grant of summary judgment for the inmate class and order summary judgment in favor of the Arizona Department of Corrections. With respect to the section 504 claim, we remand with instructions to dismiss for lack of standing.


The district court exercised original jurisdiction pursuant to 28 U.S.C. Secs. 1331, 1343(a)(3), and 2201. The Department of Corrections contends that the plaintiff class lacks standing under Article III of the United States Constitution to assert its claims under the Constitution and under section 504. We address the standing issue for these two claims separately. We have jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1).


This class action was filed by twenty-two named plaintiffs on January 12, 1990. The certified class is composed of all adult persons who are now, or who will be, in the custody of the Arizona Department of Corrections. A subclass consists of all prisoners who are handicapped individuals within the custody of the ADOC or who will in the future be in ADOC custody. Defendants are agents, officials, or employees of the Arizona Department of Corrections.

The prisoners allege that certain policies and practices of the ADOC violate their fourteenth amendment rights of access to the courts. They also claim that HIV-positive inmates are discriminated against in violation of section 504 of the Rehabilitation Act of 1973. The right of access claim is based on the Department's policy prohibiting attorney-client contact visitation to inmates at certain correctional facilities. The section 504 claim is based on the ADOC policy denying food-service employment to seropositive inmates.

On August 31, 1991, the district court granted summary judgment in favor of the plaintiff class. On September 6, 1991, the court filed an amended memorandum and order. Casey v. Lewis, 773 F.Supp. 1365 (D.Ariz.1991). The order enjoined the Arizona Department of Corrections from prohibiting contact visits between inmates and their attorneys in all facilities of the Arizona State Prison system, except for good cause. It also enjoined the Department from denying food-service employment to HIV-positive inmates, in the absence of a written finding that: (1) the inmate is not "otherwise qualified," and (2) the ADOC cannot reasonably accommodate the inmate's "handicap". On October 1, 1991, we denied the Department's petition for an emergency stay of the district court's order.


Standing is a question of law reviewed de novo. United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Insurance Corp. of Am., 919 F.2d 1398, 1399 (9th Cir.1990); Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985).

Summary judgment also is reviewed de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir.1987). The inquiry is whether, viewing the evidence in a light most favorable to the nonmoving party, there remain genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. FDIC v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992).

A. The ADOC Policy.

The Arizona Department of Corrections policy forbidding attorney contact visitation applies to: (1) inmates housed at the Alhambra Reception Center and awaiting classification; (2) inmates at Cell Block 6 of ASPC-Florence; (3) inmates housed in the Special Management Unit at the Florence facility; and (4) inmates in lock-down units at other ADOC facilities. The nature and extent of permitted visitation depends upon the location of the prisoner and his classification.

Many inmates at Alhambra are allowed contact visitation; those who are not are recent arrivals from county jail who have not yet been classified. They temporarily are considered Level 5, the highest possible security risk.

Cell Block 6 houses more than 100 inmates, roughly one-half of whom have been sentenced to death. The other inmates at CB6 are classified at Level 3. Inmates seeking contact visitation at CB6 are placed, unshackled, in a caged area measuring approximately seven feet high, four feet wide, and three feet deep. A mail slot permits the passage of documents between attorney and inmate.

The vast majority of the prisoners housed at the Special Management Unit are classified as Level 5 security risks. An SMU inmate sits on one side of a cinder-block and glass partition, while his attorney sits on the opposite side. Each side of the partition is equipped with a telephone through which the inmate and attorney converse. Documents are transferred between inmate and attorney in accordance with strict procedures to ensure the privacy of those documents.

B. Standing.

Article III limits the judicial power of the federal courts to "cases" and "controversies." Federal courts are presumed to lack jurisdiction, "unless the contrary appears affirmatively from the record." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546, 106 S.Ct. 1326, 1334, 89 L.Ed.2d 501 (1986) (internal quotation omitted). "On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes." Mansfield C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884).

"[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant'...." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979)). This is the "actual injury" component of the standing doctrine; it requires an injury to be "real and immediate," not merely "conjectural" or "hypothetical." See O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1973); Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S.Ct. 956, 960-61, 22 L.Ed.2d 113 (1969).

At least one named plaintiff must satisfy the actual injury component of standing in order to seek relief on behalf of himself or the class. O'Shea, 414 U.S. at 494-95, 94 S.Ct. at 675-76. The inquiry is whether any named plaintiff has demonstrated that he has sustained or is imminently in danger of sustaining a direct injury as the result of the challenged conduct. Id.

The prisoners allege, and the district court found, that the ADOC policy denying attorney-inmate contact visitation violates the inmates' fourteenth amendment rights of meaningful access to the courts. The prisoners must demonstrate that a named prisoner either sustained or was in imminent danger of sustaining a direct injury as a result of the policy.

The record convinces us that the prisoners have met this burden. 2 They have established a sufficient "personal stake" in the outcome of this action to "assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Their injuries, past and threatened, are sufficiently "real and immediate" to confer standing upon the class.

C. Merits.

In granting summary judgment, the district court held unconstitutional the ADOC policy denying attorney-client contact visitation to prisoners housed in Alhambra, CB6, SMU, and other lock-down units.

A prison inmate is entitled to meaningful access to the courts under the fourteenth amendment. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977). Historically, this right "require[d] 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 main concern was " 'protecting the ability of an inmate to prepare a petition or complaint.' " Id. at 828 n. 17, 97 S.Ct. at 1498 n. 17 (quoting Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974)).

In Ching v. Lewis, 895 F.2d 608, 610 (9th Cir.1990), we held that the right of access to the courts includes contact attorney visitation. The inclusion of contact...

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