Nowlin v. Scurr

• Decision Date: 16 March 1983
• Docket Number: No. 67544,67544
• Citation: 331 N.W.2d 394
• Court: Iowa Supreme Court
• Parties: George J. NOWLIN, Kent R. Benadum, Appellants, v. Iowa State Penitentiary Warden, David J. SCURR, Appellee.

Page 394

331 N.W.2d 394

George J. NOWLIN, Kent R. Benadum, Appellants, v. Iowa State Penitentiary Warden, David J. SCURR, Appellee.

No. 67544.

Supreme Court of Iowa.

March 16, 1983.

George J. Nowlin and Kent R. Benadum, pro se.

Thomas J. Miller, Atty. Gen., and Bruce C. McDonald, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McCORMICK, and CARTER, JJ.

REYNOLDSON, Chief Justice.

Plaintiffs Nowlin and Benadum appeal from district court's decree providing them only partial relief in their mandamus action that alleged they were being deprived of access to the courts. We reverse and remand for further proceedings.

Plaintiffs' pro se petition, filed November 21, 1980, alleged they were confined in "Maximum security setting administrative segregation" at Iowa State Penitentiary. They essentially alleged they were being denied meaningful access to the courts by being deprived of ball-point pens, pencils, erasers, hardback or bound lawbooks, use of a typewriter, legal-size paper and clips, and interlibrary loans. They alleged the felt-tip pens they were provided would not make carbon copies and they were without funds to pay for photocopying. Plaintiff's petition prays defendant be commanded:

(a) To allow Plaintiffs ink pens (ball point) & ink erasers, hard back or bound law books & Text books from the Prison law library # 255, to allow xerox of legal papers & documents going directly into the Courts in the State of Iowa, to allow Plaintiff Benadum access to a type writer .... (b) To afford Plaintiffs legal size paper (white) Tape, Pencils & Erasers, Legal folders & Clips from the Library # 255 herein I.S.P. To afford, Plaintiffs access to the Prison law library books etc....

The court file accompanying the appeal discloses this petition was typed. Filed with the petition was a large volume of photocopied correspondence and documents, some written by plaintiffs, and all legible. Plaintiffs were permitted to file their petition without payment of fee, and service of notice was accomplished without prepayment of service fees.

The matter was reached for hearing March 6, 1981. After a colloquy among the court, plaintiffs, and counsel for defendant, it was agreed that no testimony would be submitted, the court would consider documentary evidence submitted by both parties. The court stated it would "make an order or a ruling in accordance with the law as I see it to govern future actions as far as [plaintiffs'] rights to legal materials and the law library."

Trial court's ruling, filed August 4, 1981, quoted pertinent "institution policies as of January 15, 1981," which provided:

(1) All inmates will have access to legal materials. This also will apply to inmates in the security unit. These inmates should have access to both their own personal legal work and any literature that may be available in the institution law library.... (2) Inmates in the security unit will receive a sufficient quantity of reading materials. These inmates should have the same opportunity to borrow reading materials from the institution as that afforded to general population inmates....

Inmates in the security unit will have library privileges....

(3) The Iowa State Penitentiary shall make no policy to restrict the rights of inmates in the access to community legal services ....

Supplies and services related to legal matters, i.e., paper, typewriters, etc. shall be made available for purchase through store orders.

The court further found that the Resident Behavioral Guidelines for the security cell house unit permitted an inmate in administrative segregation to have in his cell, among other things, two felt-tipped pens, a file folder for storing legal materials, loose notebook paper, ten bound volumes or books at any one time, and library rotation. The court examined copies of plaintiffs' requests for books, and the institution's responses, and found that "[p]etitioners, other than producing evidence that certain volumes of case books were not available when requested, have not demonstrated inadequacy of the prison library." The court concluded "that the rules of the institution regulating inmates' access to legal materials while in administrative lock-up [did] not equate to a denial." Nonetheless, the court "ordered that legal size paper and clips be available to [plaintiffs] at their expense."

Plaintiffs' pro se appeal contends trial court erred (1) in not making any findings of fact or conclusions of law concerning plaintiffs' allegations of illegal and unconstitutional cell searches and deprivation of interlibrary loan materials, (2) in ordering legal-size papers and clips be provided at plaintiffs' expense, and (3) in finding that plaintiffs were not denied meaningful access to the courts.

Mandamus is an equitable action. Iowa Code § 661.3. Our review is de novo. Osborn v. City of Cedar Rapids, 324 N.W.2d 471, 474 (Iowa 1982). We give weight to trial court's findings but are not bound by them. Schrader v. State, 213 N.W.2d 539, 540 (Iowa 1973).

I. Failure to Make Certain Findings of Fact and Conclusions of Law.

Plaintiffs contend district court erred "in not making any findings of fact or conclusions of law concerning the allegations in plaintiff's petition that he was denied a[n] interlibrary loan, and illegal cell searches in violation of the Fourth and Fourteenth Amendments to the United States [Constitution]."

At the outset we note trial court's omission of these matters is understandable. Plaintiffs' petition requested no relief relating to cell searches or interlibrary loans. The hearing transcript indicates the cell search issue had been resolved in a federal court proceeding. It does not reflect any discussion concerning interlibrary loan problems.

Further, without a timely motion under Iowa Rule of Civil Procedure 179(b) to enlarge or amend findings, a party may not challenge the absence of any particular finding of fact or conclusion of law on appeal. Michael v. Merchants Mutual Bonding Co., 251 N.W.2d 531, 533 (Iowa 1977); Fjelland v. Wemhoff, 249 N.W.2d 634, 638 (Iowa 1977). Thus nothing is presented for review as to this issue.

II. Ruling that Paper and Clips be Furnished at Plaintiffs' Expense.

Plaintiffs insist that legal-size paper and clips should be made available to them free of charge, in order that they may have meaningful access to the courts.

In 1941 the United States Supreme Court first recognized a prisoner's right of access to the courts. See Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 642, 85 L.Ed. 1034, 1036, reh. denied, 312 U.S. 716, 61 S.Ct. 823, 85 L.Ed. 1146 (1941) (regulation prohibiting state prisoners from filing habeas petitions unless they were "properly drawn" unconstitutional). The right is grounded "in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violation of fundamental constitutional rights." Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935, 964 (1974). Since Hull the scope of the right has been expanded. E.g., Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899, reh. denied, 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480 (1956) (States must provide trial records to inmates unable to buy them.); Long v. District Court of Iowa, 385 U.S. 192, 194-95, 87 S.Ct. 362, 364, 17 L.Ed.2d 290, 293 (1966) (State must provide transcript of postconviction proceedings.); Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718, 724 (1969) (regulation prohibiting prisoners from assisting each other with legal matters invalid). As stated in Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72, 80 (1977), "meaningful access" is the touchstone of the prisoner's right of access to the courts.

Narrowing our focus to plaintiffs' right to paper and clips at public expense, we note the majority opinion in Bounds, 430 U.S. at 824-25, 97 S.Ct. at 1496-97, 52 L.Ed.2d at 80-81, states:

Moreover, our 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.

(Emphasis added.)

The majority of federal courts have translated the state's burden "to shoulder affirmative obligations" to assure prisoners meaningful access to the courts into an additional trial burden to affirmatively prove that the means provided for access are adequate. See, e.g., Storseth v. Spellman, 654 F.2d 1349, 1352 (9th Cir.1981); Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir.1981); Buise v. Hudkins, 584 F.2d 223, 228 (7th Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979). ¹ We imposed the same burden in State v. Simon, 297 N.W.2d 206, 209 (Iowa 1980).

Examining the skimpy record before us in light of this burden, we hold trial court was right in requiring the state to furnish plaintiffs paper for legal purposes, but wrong in holding the cost would be the obligation of plaintiffs.

Plaintiffs' petition and associated affidavits disclose they are indigent in the ordinary sense of being unable to afford counsel. See Act of May 19, 1981, ch. 117, § 775(4), 1981 Iowa Acts 408 (codified at Iowa Code § 331.775(4) (1983)). Of course, that issue is not involved here. Whether a prisoner who, for example, has money to buy coffee and cigarettes is indigent in the sense that the state must buy his or her paper for legal purposes is an issue the state has not raised and one we do not decide now. See Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586, 593 (1970) ("[A]ny indigent ... by definition ... is without funds."); Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir.1978) ("To require a prisoner who wishes to prosecute...