Hatfield v. Bailleaux, 16877.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtHAMLEY and MERRILL, Circuit , and WOLLENBERG
Citation290 F.2d 632
PartiesMark O. HATFIELD, Governor of the State of Oregon, et al., Appellants, v. Paul R. BAILLEAUX et al., Appellees.
Docket NumberNo. 16877.,16877.
Decision Date11 April 1961

290 F.2d 632 (1961)

Mark O. HATFIELD, Governor of the State of Oregon, et al., Appellants,
v.
Paul R. BAILLEAUX et al., Appellees.

No. 16877.

United States Court of Appeals Ninth Circuit.

April 11, 1961.


290 F.2d 633
COPYRIGHT MATERIAL OMITTED
290 F.2d 634
Robert Y. Thornton, Atty. Gen., Lloyd G. Hammel, Peter S. Herman, Asst. Attys. Gen., for appellant

Cecil H. Johnson, Salem, Or., Louise Jayne, and William E. Love, Portland, Or., for appellees.

Stanley Mosk, Atty. Gen., of California, Doris H. Maier, Deputy Atty. Gen., for State of California, as amicus curiae.

Before HAMLEY and MERRILL, Circuit Judges, and WOLLENBERG, District Judge.

HAMLEY, Circuit Judge.

This is a suit by seven inmates of Oregon State Penitentiary to enjoin prison on officials from enforcing certain prison regulations and continuing certain customs and usages at the penitentiary. The regulations, customs and usages in question limit the times and places during and in which inmates may engage in legal research and the preparation of legal papers, and restrict the acquisition and retention of law books and legal materials. Plaintiffs alleged that they are thereby deprived of reasonable access to the courts in violation of their rights under the First and Fourteenth Amendments of the Constitution.

Jurisdiction of the district court was invoked under the Civil Rights Act.1 Named as defendants were the Oregon governor, secretary of state and state treasurer, comprising The Oregon State Board of Control, and the warden and deputy warden of the penitentiary.

The question of the necessity for a three-judge court, as provided for in 28 U.S.C.A. § 2281, was raised by motion filed by defendants. Responsive to this motion an order was entered directing a trial "on all issues on which counsel for the plaintiffs and defendants agree will not require the convening of a three-judge court."2

The cause then proceeded to trial without apparent limitation as to the issues raised by the amended and consolidated complaint. Judgment was entered granting a substantial part of the relief sought.3 The judgment was made applicable

290 F.2d 635
to all inmates of the penitentiary. The opinion of the district court is reported in 177 F.Supp. 361. Defendants appeal

Appellants and appellees now share the view that it was not necessary to convene a three-judge court to try this case. We agree.

Where the effort is to enjoin the enforcement, operation or execution of an administrative order of general application representing considered state policy, an attack on the constitutionality of such an order calls section 2281 into play.4 But the orders here challenged, while promulgated pursuant to authority conferred by statute,5 are not of general state-wide application and do not represent state policy.6

Before reaching the merits of the appeal, we must also deal with appellants' contention that the entire proceeding has been rendered moot by the enactment, effective May 26, 1959, of the Oregon Post Conviction Hearing Act, ORS 138.510 to 138.680.

Appellants argue that the gravamen of appellees' amended and consolidated complaint is that they have to act as their own counsel and cannot do so effectively under the challenged prison regulation. They point out that under the Oregon Post Conviction Hearing Act now in effect provision is made for the appointment of counsel for indigent prisoners who wish to pursue that remedy. They also assert, citing 28 U.S.C.A. §§ 1915, 2250, that in so far as federal court proceedings involving the validity of state imprisonment are concerned, appointment of counsel for indigent prisoners may also be obtained.

The Oregon Post Conviction Hearing Act does not provide a remedy available to every Oregon state prisoner who seeks release. It does not apply to those who are defending against pending criminal charges, or who are appealing from judgments of conviction. Nor does it apply to those who have asserted their grounds for and been denied relief in post-conviction proceedings prior to the passage of the act. Alcorn v. Gladden, 9 Cir., 286 F.2d 689.

In so far as federal habeas corpus proceedings are concerned, indigent state prisoners are not entitled to court-appointed counsel unless under the circumstances of the particular case this is required in order to attain due process of law. Anderson v. Heinze, 9 Cir., 258 F.2d 479, 481. And as to both state and

290 F.2d 636
federal court proceedings, a state prisoner may competently and intelligently waive counsel and represent himself if he chooses to do so, and is not obliged to be represented by counsel. See White v. Ragen, 324 U.S. 760, 762, note 1, 65 S.Ct. 978, 89 L.Ed. 1348

It follows that enactment of the Oregon Post Conviction Hearing Act has not rendered moot this action to enjoin practices which are alleged to deprive appellees of reasonable access to state and federal courts in proceedings involving personal liberty.

Coming to the merits, it is first necessary to establish the substantive basis for the judgment. Jurisdiction in the district court is based on 28 U.S.C.A. § 1343(3), which is a provision of the Civil Rights Act.7 It will be noted that under this provision a district court has jurisdiction only to the extent that civil actions to redress the rights referred to therein have been "authorized by law." It is therefore necessary to look elsewhere to ascertain what civil actions for the redress of these rights have been authorized by law.

Appellees relied upon 42 U.S.C.A. §§ 1983 and 1985(2) and (3) as providing authorization for the bringing of this particular civil action. These, too, are provisions of the Civil Rights Act.

Section 1985(2) and (3) pertains only to actions for deprivations of rights by acts pursuant to a conspiracy to interfere with civil rights. Hoffman v. Halden, 9 Cir., 268 F.2d 280, 292. The district court judgment here under review is not based upon any finding of conspiracy. On the contrary, the court specifically found and adjudicated that appellants did not unlawfully conspire to deprive the appellees of their right to have effective access to the courts to litigate and resolve criminal matters affecting them. It follows that the judgment is not based upon section 1985(2) and (3).

This leaves for examination 42 U. S.C.A. § 1983, the one remaining statute relied upon by appellees as providing a substantive foundation for the judgment. Under that statute one deprived under color of state law of any right, privilege or immunity secured by the Constitution and laws of the United States may obtain redress in the federal courts.8

Reasonable access to the courts is such a right, being guaranteed as against state action by the due process clause of the fourteenth amendment. In so far as access by state prisoners to federal courts is concerned, this right was recognized in Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 85 L.Ed. 1034. The right of access by state prisoners to state courts was recognized in White v. Ragen, supra, 324 U.S. at page 762, note 1, 65 S.Ct. at page 979.9

The theory of appellees' case is that the prison regulations and practices in question, whether or not designed to this end, have the effect of depriving appellees of the right of reasonable access to the courts. The district court adopted this theory in entering judgment for appellees.

290 F.2d 637

Appellants argue that the district court erred in granting relief on this ground. They contend that under the evidence and findings before us the conclusion is not warranted that the prison regulations and practices in question have the alleged unconstitutional effect.

In the context of this case, access to the courts means the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one's personal liberty, or to assert and sustain a defense therein, and to send and receive communications to and from judges, courts and lawyers concerning such matters. Whether or not in a particular case the access afforded is reasonable depends upon all of the surrounding circumstances.

There is no finding that appellants have been denied all access to the courts.10 There is no finding that by reason of any prison regulation or practice pertaining to the preparation, service and filing of such pleadings or documents, or to the sending and receiving of such communications, any appellee has ever lost the right to commence, prosecute, defend or appeal in any court proceeding involving personal liberty. Nor is there any finding that by reason of prison regulations and practices any appellee has been substantially delayed in obtaining a judicial determination in any such court proceeding.

In the absence of findings of this kind it is difficult to see how there could possibly be warrant for the conclusion that appellees have been deprived of reasonable access to the courts.

But passing for the time being this basic weakness in the premise upon which the judgment rests, we turn to an examination of the factual and legal bases for the individual injunctive provisions of the judgment.

One provision relates exclusively to appellees confined to the isolation ward. Appellants are enjoined from prohibiting these appellees from communicating with or receiving communication from legal counsel or a judge of an appropriate court pertaining to criminal matters affecting them. Appellants are also enjoined from prohibiting appellees confined in isolation from having a reasonable opportunity to study legal materials and prepare legal documents pertaining to such criminal matters, "having due regard for the purpose of isolation treatment."

With regard to this provision of the judgment the court in effect found that while confined in isolation appellees are not permitted to send or receive communications to and from attorneys, judges and courts except in cases already pending, and...

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131 practice notes
  • Jordan v. Fitzharris, 44786.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 6, 1966
    ...of the officials themselves, without attempted intrusion or intervention on the part of the courts. See, e. g., Hatfield v. Bailleaux, 290 F.2d 632, 640 (9th Cir. 1961); Childs v. Pegelow, 321 F.2d 487, 489 (4th Cir. 1963); United States ex rel. Knight v. Ragen, 337 F.2d 425 (7th Cir. Howev......
  • Hall v. State of Md., Civ. No. 71-37-K
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • February 8, 1977
    ...obstructed. * * * Such access to the courts by prisoners must be "reasonable" under all surrounding circumstances. Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961). It must also be "meaningful". Hooks v. Wainwright, 352 F.Supp. 163, 167 Plaintiffs argue that in order for prisoners i......
  • Palmigiano v. Travisono, Civ. A. No. 4296
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • August 24, 1970
    ...In re Chessman, 44 Cal.2d 1, 279 P.2d 24; Bailleaux v. Holmes, 177 F.Supp. 361 (D.Ore.1959), rev'd sub nom. Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961); American Correctional Assn. Manual of Correctional Standards (3rd ed. 40 For the same reason, this court has not evaluated each pr......
  • Silva v. Vittorio, 08–15620.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 8, 2010
    ...therein, and to send and receive communications to and from judges, courts and lawyers concerning such matters.” Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir.1961) (emphasis added). In Lewis, the Supreme Court limited the right of access to the courts to the pleading stage in cases inv......
  • Request a trial to view additional results
131 cases
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 17, 1969
    ...U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Hatfield v. Bailleaux, 290 F.2d 632 (9 Cir. 1961); D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 31-34, 55 (1964); D. Currie, Feder......
  • Lewis v. Casey, No. 94–1511.
    • United States
    • United States Supreme Court
    • June 24, 1996
    ...obligation to facilitate prisoner lawsuits by providing law libraries and legal assistance was articulated in Hatfield v. Bailleaux, 290 F.2d 632 (CA9), cert. denied, 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 (1961) :"State authorities have no obligation under the federal Constitution to pro......
  • Jordan v. Fitzharris, No. 44786.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 6, 1966
    ...of the officials themselves, without attempted intrusion or intervention on the part of the courts. See, e. g., Hatfield v. Bailleaux, 290 F.2d 632, 640 (9th Cir. 1961); Childs v. Pegelow, 321 F.2d 487, 489 (4th Cir. 1963); United States ex rel. Knight v. Ragen, 337 F.2d 425 (7th Cir. Howev......
  • Clutchette v. Procunier, No. C-70 2497.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 21, 1971
    ...But when the practice challenged is not of statewide application, a three-judge court is not required. Thus, in Hatfield v. Bailleaux, 290 F.2d 632, 635 (9th Cir. 1961), the Ninth Circuit held that a three-judge court was not required in a case challenging an Oregon prison regulation, even ......
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1 books & journal articles
  • Reading Law in Prison
    • United States
    • Prison Journal, The Nbr. 48-1, April 1968
    • April 1, 1968
    ...ex rel. Sherwood v. Gladden, 240 F. 2d 910 (9th Cir. 1957); Grove v. Smyth, 169 F. Supp. 852 (E. D. Va. 1958). 9 Hatfield v. Bailleaux, 290 F. 2d 632 (7th Cir., 1961 ), cert. denied, U. S. 862 (1961) reversing Bailleaux v. Holmes, 177 F. Supp. 361 (1959); In reAllison, 57 Cal. Rptr. 593, 42......

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