Childs v. Pellegrin

• Decision Date: 24 June 1987
• Docket Number: No. 84-5605,84-5605
• Citation: 822 F.2d 1382
• Parties: Edward R. CHILDS, Jr., Plaintiff-Appellant, v. Ernest PELLEGRIN, State Commissioner of Corrections; William Long, former State Commissioner of Corrections; Ron Bishop, Director of Programs; Dick Baumbach, Public Information Officer; Herman C. Davis, Warden, Fort Pillow State Farm; Kay Bradshaw; Davis Mills; Ross Bates; Marvin Smith; Bill Howell; Charles Cubine; Charles Piphus; Wayne Carpenter; Jim Rose, former Warden of Tennessee State Prison; Michael Dutton, Warden, Tennessee State Prison; James L. Vandever; Fort Pillow State Farm Tactical Squad; Lake County Regional Facility Tactical Squad, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1382

822 F.2d 1382

Edward R. CHILDS, Jr., Plaintiff-Appellant, v. Ernest PELLEGRIN, State Commissioner of Corrections William Long, former State Commissioner of Corrections; Ron Bishop, Director of Programs; Dick Baumbach, Public Information Officer; Herman C. Davis, Warden, Fort Pillow State Farm; Kay Bradshaw; Davis Mills; Ross Bates Marvin Smith; Bill Howell; Charles Cubine; Charles Piphus; Wayne Carpenter; Jim Rose, former Warden of Tennessee State Prison; Michael Dutton, Warden, Tennessee State Prison; James L. Vandever; Fort Pillow State Farm Tactical Squad; Lake County Regional Facility Tactical Squad, Defendants-Appellees.

No. 84-5605.

United States Court of Appeals Sixth Circuit.

Argued Dec. 1, 1986.

Decided June 24, 1987.

David Himmelreich, Atty. Gen., Nashville, Tenn., for Ernest pellegrin.

Robert B. Littleton, Nashville, Tenn., for Ron Bishop and Dick Baumbach.

Patrick T. Nesbitt, Cincinnati, Ohio, for Edward R. Childs, Jr.

Bob Lynch, Jr., Nashville, Tenn., for Rose, Dutton and Vandever.

C. Hayes Cooney, Matthew J. Sweeney, III, Cyrus R. Booker, Nashville, Tenn., for Lake Co. Tactical and Ft. Pillow Tactical.

Before JONES and RYAN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

RYAN, Circuit Judge.

Plaintiff Childs, a prisoner in the Tennessee State prison system, appeals the dismissal of his civil rights complaint under 42 U.S.C. Sec. 1983. We reverse.

I.

On July 11, 1983, Childs was a prisoner in the Fort Pillow State Prison in Tennessee, assigned to an outdoor work detail. He was standing in the prison yard when that work detail was ordered to report for duty. On this particular day, in keeping with an inmate-initiated work stoppage, no prisoners reported for duty when called. All the prisoners in the prison yard were herded to one corner of the yard and constrained with temporary fencing.

The work stoppage continued the next day, July 12, 1983. At one point on this second day, four of the inmates who were confined in the yard attempted to pass through an opening in the fencing while holding a white cloth over their heads. In response, guards opened fire with shotguns and all four inmates were wounded. Childs was standing nearby at the time but was not hit.

The following day, July 13, 1983, Childs was removed from the yard and transferred to the Tennessee State Prison. He was immediately placed in administrative segregation. The next day, Childs received an "involuntary administrative segregation placement report" signed by the prison warden, which stated that he was being placed in administrative segregation because he was believed to be the instigator of the sit-down strike at Fort Pillow. Childs signed this report.

On July 15, 1983, a three-member "discipline board" approved Childs' placement in segregation, due to the seriousness of the allegations against him. Childs later claimed that he "went before a disciplinary board" on July 15 and that at that time "they dismissed the charges against me." Childs' recollection conflicts with the written report.

Two weeks later, however, on July 27, 1983, a hearing was held before a three-member "administrative segregation review board." The written report does not reflect whether the charges against Childs were "dismissed" at this time. However, the board recommended that Childs be released into the general prison population. The warden rejected the board's recommendation pending completion of an investigation by "Internal Affairs."

One month later, on August 26, 1983, plaintiff again was reviewed by the administrative segregation review board. Child's request that he be allowed to remain in administrative segregation until he could be transferred to another institution was granted.

The next month, on September 21, 1983, Childs was again reviewed and again requested that he remain segregated until transferred. The report also states that Childs had been "cleared of being the instigator of the work stoppage." Childs remained segregated and continued to receive reviews approximately once a month until at least March 1984. Eventually, he was transferred to the Lake County Regional Prison, where he apparently remains at this time. The record does not disclose why Childs was not transferred from the Tennessee State Prison earlier.

On February 17, 1984, while still at the Tennessee State Prison, Childs filed a Sec. 1983 complaint. This complaint was a form which Childs filled out in longhand, to which he attached several pages of additional detail. The complaint charged, among other things, that Childs had been forced to participate in the work stoppage, that he had been falsely accused of instigating the work stoppage, and that after the allegations were dismissed on July 15, 1983, he was still held in administrative segregation and deprived of privileges such as work status and back pay. Childs also sought, and was granted, the right to proceed in forma pauperis.

In the complaint, and in a separate motion filed on March 26, 1984, Childs asked that counsel be appointed for him. This request was denied.

On April 17, 1984, Childs filed a "Supplemental Motion for Usage of Law Books, Materials, Typewriter, Etc." This motion alleged that Childs was being denied the use of law books, legal materials, pen, pencils, and paper. The motion also alleged that his requests for legal materials went unanswered for periods up to three weeks, and that he had been told by prison officials that inmates placed in segregation are "not permitted" access to such materials. This motion was not accompanied by a certificate of service, and apparently was never served on the defendants. One of the briefs filed in this court states that "at least some of the Defendants did not have notice of the claim." Apparently, no response to this motion was ever made. Childs never pursued the matter further, and the district court has not ruled on the motion.

The district court did, however, provide Childs an opportunity to appear at an evidentiary hearing on May 29, 1984. At the hearing, Childs testified regarding the events of July 1983, and following, upon which his complaint was based. The same day the district court dismissed the claim, for the reasons stated in a short memorandum opinion. Childs appeals from the order that accompanied that opinion.

II.

Childs' allegation that he has been denied his right of access to the courts has two components: first, the failure to appoint counsel, and second, the failure to assure adequate access to legal materials.

Under 28 U.S.C. Sec. 1915(d):

The court may request an attorney to represent any [litigant who is proceeding in forma pauperis ] unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

As this statute makes clear, "the appointment of counsel in a civil case is, as is the privilege of proceeding in forma pauperis, a matter within the discretion of the court. It is a privilege and not a right." United States v. Madden, 352 F.2d 792, 793 (9th Cir.1965). The effect of the statute is to permit the court to pass on the sufficiency of the complaint in a preliminary way before appointing counsel. As this court has recently stated, appointment of counsel is not necessary when it is apparent that the appointment would be "a futile act." Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir.1985). "Appointment of counsel pursuant to 28 U.S.C. Sec. 1915(d) is not appropriate when a pro se litigant's claims are frivolous ... or when the chances of success are extremely slim." Id. (citations omitted).

The second component of Childs' access to the courts claim has its basis in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), where the Court stated:

[O]ur decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts. It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them.

Id. at 824-25, 97 S.Ct. at 1496. The Court went on to hold

that the fundamental constitutional right of access to the courts 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 (footnote omitted). The Court reasoned:

Although it is essentially true, as petitioners argue, that a habeas corpus petition or civil rights complaint need only set forth facts giving rise to the cause of action, but see, Fed.Rules Civ.Proc. 8(a)(1), (3), it hardly follows that a law library or other legal assistance is not essential to frame such documents. It would verge on incompetence for a lawyer to file an initial pleading without researching such issues as jurisdiction, venue, standing, exhaustion of remedies, proper parties plaintiff and defendant and types of relief available. Most importantly, of course, a lawyer must know what the law is in order to determine whether a colorable claim exists, and if so, what facts are necessary to state a cause of action.

Id. at 825, 97 S.Ct. at 1496-97 (footnote omitted).

In Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985), this court held that there is no "general constitutional right to some minimum amount of time in the prison law library." Rather, a prisoner's claim that he has been denied adequate use of the prison law library must be analyzed as a claim that he has been "denied access to the courts." Id. (emphasis in original).

In this case, the trial judge has stated no reasons for his rejection of Childs' claim that he has been denied access to the courts; indeed, the court did not address the subject in its written opinion at all. Defendants contend that Childs' claim must be rejected because it is neither...