Morrow v. Harwell

• Decision Date: 02 August 1985
• Docket Number: No. 84-1610,84-1610
• Citation: 768 F.2d 619
• Parties: Thomas MORROW, Individually and in Behalf of all others similarly situated, Plaintiff-Appellee, v. Jack HARWELL, Individually and in his official capacity as Sheriff of McLennan County, Texas, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 619

768 F.2d 619

Thomas MORROW, Individually and in Behalf of all others similarly situated, Plaintiff-Appellee, v. Jack HARWELL, Individually and in his official capacity as Sheriff of McLennan County, Texas, et al Defendants-Appellants.

No. 84-1610.

United States Court of Appeals Fifth Circuit.

Aug. 2, 1985.

W.C. Haley, Herbert S. Bristow, Waco, for defendants-appellants.

John A. Buckley, Jr., James C. Harrington, American Civil Liberties Foundation of Texas, Austin, Tex., for plaintiff-appellee.

Ruben Rendon, Houston, Tex., for amicus--League of United Latin Maerican Citizens.

Malcolm Greenstein, Austin, Tex., for amicus--Citizens United for Rehabilitation of Errants.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, JOHNSON and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The Sheriff of McLennan County, Texas and other county officials appeal a magistrate's ordered changes in the County's jail facilities and rules. The orders followed trial of a class action suit filed by a prison inmate who alleged denial of access to the courts, as well as constitutional deprivations relating to the jail's policies on visitation, mail, and disciplinary procedures. We affirm the magistrate's declaration that the County's plan for inmate access to the courts is inadequate. We reverse the declaration that certain physical facilities for visitation are inadequate but affirm, for the most part, the other declarations of invalidity. We set aside all companion injunctive decrees as having been issued without sufficient necessitating circumstances.

I

This suit was filed in March 1976, when McLennan County housed its prisoners in the "old jail," a facility built in the 1950's. Thomas Morrow, an inmate representing a class that included "all past, present and future inmates of McLennan County Jail," complained that inmates' rights under the First, Sixth, Eighth and Fourteenth Amendments were being violated by a host of conditions at the jail, including disciplinary procedures, inmate conduct rules, grievance procedures, visitation and mail privileges, supervision, clothing, hygiene, food, exercise, medical treatment, dental treatment, mental health services, jail design, jail capacity, jail sanitation, and cell space, as well as lack of access to legal materials, attorneys, telephones, newspapers, periodicals, radios and televisions.

At about the time suit was filed, the County began construction of a new jail and made plans to upgrade the old jail. It was the County's objective that when the two facilities were combined the County would be in compliance with the Texas Jail Standards Act, Tex.Rev.Civ.Stat.Ann. art. 5115 et seq. (Vernon 1975). The suit lay dormant until the new jail was completed in January 1981. At that time, many of the complaints fell away.

By consent of the parties, the remaining issues were tried to a magistrate in the fall of 1982. After conducting a post-trial hearing on the principal dispute, whether the County had afforded its prisoners adequate access to the courts as required by Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the magistrate filed a final decree in March 1984. The decree found the County to be in compliance with constitutional standards on the issues of supervision, diet, medical care, education, recreation, overcrowding, and detention conditions for pre-trial detainees, but not on the remaining points. The magistrate ordered the County to provide the following relief: (1) access to the courts through either an adequate law library or legal assistance or a combination of both; (2) modification of visitation policies (a) to permit minors to visit inmates, (b) to permit weekend visitation, (c) to equalize visitation rights of male and female inmates, and (d) to upgrade communication facilities in the visitation areas at the old jail; (3) establishment of disciplinary procedures consistent with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); and (4) establishment of written guidelines for mail practices consistent with Guajardo v. Estelle, 580 F.2d 748 (5th Cir.1978). After a hearing, the magistrate awarded plaintiffs $47,950.00 in attorney fees. The County challenges the relief granted as well as the award of attorney's fees.

II

We turn first to the issue of access to the courts. The relevant facts are not disputed. There is no law library at the jail, but legal sources are available to the inmates through a weekly bookmobile, drawing upon the Waco-McLennan County Public Library. This library contains a number of statutory codes, digests, and form books, as well as the advance sheets of certain reporters from the McLennan County Law Library. Although the County contends that notices explaining availability of this service were posted in the jail library, the magistrate found that "inmates have not been made aware of this program or of the law books available to check out...." There are no digests or other research materials available at the jail itself; therefore, the inmates cannot determine in advance which books they might wish to request.

McLennan County is located in the central part of Texas. Its seat is the City of Waco, the home of Baylor University. The county jail's library program is supplemented by paralegal assistance from two Baylor University law students who work under the supervision of a practicing attorney. The students, paid an hourly wage by the County, visit inmates who request legal assistance, but are prohibited by state law from giving legal advice. See Tex.Rev.Civ.Stat.Ann. art. 320a-1 Secs. 10(a), 19 (Vernon Supp.1985). The students can assist prisoners only by providing copies of forms, cases, and other written legal materials. The copies are made for inmates at their request at a rate of ten cents per page, with free copies for indigents. Assertedly to deter abuse, jail officials did not inform indigent inmates that they could obtain copies without charge.

There was testimony that, although the law students employed by the County are not supposed to give legal advice, they interpreted some legal authorities and occasionally helped the inmates to complete legal forms. The County does not rely on these enthusiasms to the extent they may occasionally have gone further than the state law permits.

The source of the prisoners' asserted right to a law library is the Supreme Court's decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). In Bounds the Court held that prisoners have a constitutional right of adequate, effective and meaningful access to the courts, a right which "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing ... adequate law libraries or adequate assistance from persons trained in the law." Id. at 828, 97 S.Ct. at 1498. Apparently, the right is not extended to all legal filings, but applies only to presentation of constitutional claims, such as civil rights complaints and state and federal habeas petitions. Id. at 825, 827-28 & n. 17, 97 S.Ct. at 1496, 1497-98 & n. 17. The inmates' ability to file is not dispositive of the access question, because the Court in Bounds explained that for access to be meaningful, post-filing needs, such as the research tools necessary to effectively rebut authorities cited by an adversary in responsive pleadings, should be met. Id. at 825-26, 97 S.Ct. at 1496-97. In short, this found right of access includes the ability to file a legally sufficient claim. Bonner v. City of Prichard, 661 F.2d 1206, 1212 (11th Cir.1981) (en banc).

Perhaps because their textual footing in the Constitution is not clear, these principles suffer for lack of internal definition and prove far easier to state than to apply. For example, there has been confusion in the cases regarding Bounds 's requirement that all prisoners be given meaningful access to the courts. Dicta in Cruz v. Hauck, 627 F.2d 710, 720-21 (5th Cir.1980) (Cruz III ) suggests that, given that the right recognized in Bounds was one of meaningful access to the courts, a library alone may not satisfy the Constitution, at least for those inmates who cannot read English or who are otherwise illiterate. Other courts have rejected the notion that if a Bounds library is provided, something more may nevertheless be required. See Cepulonis v. Fair, 732 F.2d 1, 6 (1st Cir.1984). The issue is not before us because the magistrate concluded that the evidence presented on the literacy and educational backgrounds of the inmates at the jail was "inconclusive."

While Bounds did not read its found right of access in a wholly mechanical fashion, the Court was firm in its command that the right be met with books or legal assistance or both; it foreclosed the question of the practical utility of a library, concluding that access to a library is access to the courts. Access to courts can be secured, though, by means other than the furnishing of a law library containing the suggested volumes. A complete library, as described in Bounds, or assistance by paralegals or some lesser amount of each in combination might be used. Indeed, access to paralegals and writ writers may bear a rough inverse relationship to the library materials required. 430 U.S. at 831-32, 97 S.Ct. at 1499-1500.

Given the tension inherent in requiring that lawyers' tools be made available despite the absence of any constitutional right to lawyers, the Bounds requirement is inevitably inexact. For those who question the utility or cost of a Bounds library, access can be met by furnishing legal assistance even though the legal assistance is not independently required by the Constitution. To the extent that the operative reality of Bounds is that it leverages legal assistance that cannot be justified in direct terms, it is a leverage built into Bounds and, whatever its dissembling dimensions, we...