Sands v. Lewis

• Citation: 886 F.2d 1166
• Decision Date: 11 May 1989
• Docket Number: No. 87-2629,87-2629
• Parties: Royce Calvin SANDS, II, Petitioner-Appellant, v. Sam LEWIS, Director, ADOC; John McFarland, Assistant at ADOC; B.D. Goldsmith, Deputy Warden of the Central Unit; Major Terry, Head of Security at the Central Unit; Sgt. Beigenwald, Head of Security at the Central Unit; Jim Adams, Assistant Warden of Central Unit, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1166

886 F.2d 1166

Royce Calvin SANDS, II, Petitioner-Appellant, v. Sam LEWIS, Director, ADOC; John McFarland, Assistant at ADOC; B.D. Goldsmith, Deputy Warden of the Central Unit Major Terry, Head of Security at the Central Unit; Sgt Beigenwald, Head of Security at the Central Unit; Jim Adams, Assistant Warden of Central Unit, Respondents-Appellees.

No. 87-2629.

United States Court of Appeals Ninth Circuit.

Submitted May 11, 1989 ^*.

Decided Sept. 29, 1989.

Royce Sands, pro se, Tucson, Ariz., for petitioner-appellant.

Thomas Prose, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.

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

Before WALLACE and NOONAN, Circuit Judges, and ZILLY, ^** District Judge.

ORDER

The opinion filed in this case on July 3, 1989, is withdrawn.

OPINION

WALLACE, Circuit Judge:

Sands appeals from the district court's dismissal, for failure to state a claim, of his action brought under 42 U.S.C. Sec. 1983. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1343(a)(3). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm in part, reverse in part, and remand.

I

Sands, an incarcerated state prisoner appearing pro se, filed a complaint against defendants Lewis and other prison officials (prison officials), and subsequently filed an amended complaint. The amended complaint alleged that Sands's constitutional rights to free speech and due process (right of access to courts) were violated when prison officials (1) refused to allow him to take possession of a new typewriter with a certain correction memory capability that had been mailed to him by his mother, and (2) prohibited him from purchasing, or possessing in his cell, carbon paper because it was a fire hazard. Sands attributed the denial of his typewriter to a prison policy prohibiting prisoners from possessing typewriters with memory capability of over 28 characters; Sands's typewriter had a capability of 40 characters. Notably, Sands's complaint did not allege deprivation of property without due process of law or violation of equal protection of the laws. On appeal, Sands argues that his complaint does state a claim for denial of his right of access to courts and for abridgement of his free speech rights. We address these arguments in turn.

We review independently a dismissal for failure to state a claim for which relief could be granted. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989). We must accept Sands's material allegations in the complaint as true and construe them in the light most favorable to him. Id. "We may affirm the district court's dismissal 'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.' " Id., quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Moreover, a pro se litigant such as Sands "must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir.1988) (Karim-Panahi ), quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (Noll ).

II

Sands's first claim is that the prison's policies and actions deprived him of his constitutional right of access to the courts. He points to (1) the prison's policy against allowing inmates to possess typewriters above a certain memory capability in their cells, and (2) the unavailability of carbon paper as well as the prohibition against inmates keeping carbon paper in their cells.

In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (Bounds ), the Supreme Court described the contours of the constitutional right of access to the courts. This right of access is grounded in the fourteenth amendment's due process clause. See Vigliotto v. Terry, 865 F.2d 1131, 1132-33 (9th Cir.1989). In Bounds, the Court surveyed its decisions in this area, observing that its most recent cases had "struck down restrictions and required remedial measures to insure that inmate access to the courts is adequate, effective, and meaningful." 430 U.S. at 822, 97 S.Ct. at 1495 (emphasis added); see also Franklin v. Murphy, 745 F.2d 1221, 1231-32 (9th Cir.1984) (Franklin ); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981). The Court observed that states have an affirmative obligation to ensure indigent prisoners' "meaningful" access to court:

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. States must forgo collection of docket fees otherwise payable to the treasury and expend funds for transcripts.... This is not to say that economic factors may not be considered, for example, in choosing the methods used to provide meaningful access. But the cost of protecting a constitutional right cannot justify its total denial.

Bounds, 430 U.S. at 824-25, 97 S.Ct. at 1496 (emphasis added). Finally, the Court in Bounds concluded that to guarantee the right of access, prison authorities must "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).

Since Bounds, prisoner suits alleging a denial of access to courts have become commonplace in this circuit. Most of our cases have dealt with Bounds 's core requirements that prison officials provide "adequate law libraries or adequate assistance from persons trained in the law." Id. Fewer of our cases have considered claims based on Bounds 's teaching that the State must provide "indigent" prisoners with basic supplies which ensure that their access is "meaningful." See id. at 824-25, 97 S.Ct. at 1496-97. In evaluating this latter type of claim, we have declined to read into the Constitution any specific minimum requirements beyond those mentioned in Bounds itself. See King v. Atiyeh, 814 F.2d 565, 568 (9th Cir.1987) (citing Bounds for proposition that state must provide indigent inmates with postage stamps at state expense to mail legal documents). In King, we stated: "There is no established minimum requirement that a state must meet in order to provide indigent inmates with adequate access to the courts. Instead, a reviewing court should focus on whether the individual plaintiff before it has been denied meaningful access." Id. In other cases, we have stressed this individualized focus on whether a particular prisoner had meaningful access. See Lindquist v. Idaho State Board of Corrections, 776 F.2d 851 (9th Cir.1985) (Lindquist ); Franklin, 745 F.2d at 1231-32.

Despite this individualized focus, we have not hesitated to reject constitutional claims of entitlement to resources which no prisoner could possibly require to have "meaningful" access. For example, we have held that prisoners have no constitutional right to the use of a typewriter. Lindquist, 776 F.2d at 858. In like manner, numerous courts have rejected any constitutional right to free and unlimited photocopying. See Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983) (Franzen ) ("[B]road as the constitutional concept of liberty is, it does not include the right to xerox."); see also Wanninger v. Davenport, 697 F.2d 992, 994 (11th Cir.1983) (Wanninger ); Johnson v. Parke, 642 F.2d 377, 380 (10th Cir.1981); Harrell v. Keohane, 621 F.2d 1059, 1060-61 (10th Cir.1980).

This circuit's decisions have reflected our belief that the Constitution requires that certain minimum standards be met; it does not require the maximum or even the optimal level of access. See Lindquist, 776 F.2d at 856 (if prison decides to provide adequate law library as option under Bounds, it "need not provide its inmates with a library that results in the best possible access to the courts. Rather, the Prison must provide its inmates with a library that meets minimum constitutional standards.") (citation omitted); id. at 858 ("[T]he Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used."). In other words, the Constitution does not require the elimination of all economic, intellectual, and technological barriers to litigation. Cf. Hoptowit v. Ray, 682 F.2d 1237, 1246-47 (9th Cir.1982) (eighth amendment claims).

The Third Circuit has employed a useful framework for analyzing "right of access" claims which reflects these concerns and is in harmony with our case law. See Peterkin v. Jeffes, 855 F.2d 1021, 1039-42 (3d Cir.1988) (Peterkin ); Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir.1982) (Hudson ); Kershner v. Mazurkiewicz, 670 F.2d 440, 442, 444-45 (3d Cir.1982) (en banc) (Kershner ). In Kershner, Judge Adams, writing for the full court, had this to say about the prisoner's claim that under Bounds prison authorities were required to provide indigent inmates with free legal supplies, including pads, pens, pencils and photocopying:

Appellants rely heavily on Bounds v. Smith. In the very first sentence in Bounds, however, the majority stated its perception of the primary issue before the Court as follows: "The issue in this case is whether States must protect the right of prisoners to access to the courts by providing them with law libraries or alternative sources of legal knowledge." Pads, pens, pencils, and photocopy machines are, of course, neither "law libraries" nor "alternative sources of legal knowledge." In a lengthy discourse on somewhat collateral issues, however, the Court said: "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,...