Storseth v. Spellman, 79-4682

• Decision Date: 31 August 1981
• Docket Number: No. 79-4682,79-4682
• Citation: 654 F.2d 1349
• Parties: Larry A. STORSETH, # 623435, Plaintiff-Appellant, v. John D. SPELLMAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1349

654 F.2d 1349

Larry A. STORSETH, # 623435, Plaintiff-Appellant, v. John D. SPELLMAN, et al., Defendants-Appellees.

No. 79-4682.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 7, 1981.

Decided Aug. 31, 1981.

David F. Gross, Graham & James, San Francisco, Cal., for plaintiff-appellant.

Katherine D. Mix, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT and ANDERSON, Circuit Judges, and BURNS, District Judge. ^*

EUGENE A. WRIGHT, Circuit Judge:

I. INTRODUCTION

We are asked to determine (1) whether an inmate has a right to the assistance of an inmate writ writer of his choice to assure his right of access to the courts and (2) the extent of his First Amendment right to communicate with that writ writer. ¹ Because inmate Storseth has enjoyed adequate access through other avenues, we hold that he does not have any right to inmate assistance or to the aid of a writ writer of his choice. We hold also that the prohibition of his correspondence with his writ writer infringed on his First Amendment rights.

We affirm the district court's order precluding intervention by Storseth's inmate writ writer and offering to appoint counsel if Storseth agrees to abide by certain conditions. That part of the order barring inter-institutional correspondence between the two men is reversed.

II. FACTS

While in the Washington State Penitentiary at Walla Walla in 1977, Riddell, an inmate writ writer, prepared and filed a civil rights action under 42 U.S.C. § 1983 on Storseth's behalf. It alleged mistreatment by the prison staff and failure to protect Storseth from other inmates. All papers filed up to July 31, 1979, were authored, signed, and filed by Riddell.

In March 1977, Riddell requested the court to appoint counsel for Storseth.

On October 27, 1977, Storseth was transferred to the State Corrections Center at Shelton at his request, and later to the State Reformatory at Monroe. The state prohibited correspondence between the two men after the transfer. In February 1978, Riddell, on Storseth's behalf, successfully sought a court order allowing the two men to correspond about Storseth's case subject to the state's inspection of their mail.

Riddell renewed the Motion for Appointment of Counsel on December 27, 1977, seeking appointment of Fred M. Schuchart of Spokane. The court appointed Mr. Schuchart on February 22, 1978.

On March 23, 1978, the court vacated its order allowing communication between Storseth and Riddell because it found that Mr. Schuchart's appointment rendered the communication unnecessary. It stated, however, that Riddell could communicate with Mr. Schuchart if necessary. Riddell and Storseth continued to correspond subject to the state's inspection until Riddell was transferred to the Clearwater facility, a remote honor camp on the Olympic Peninsula. At that time, the state again prohibited their correspondence.

Despite Mr. Schuchart's appointment, Riddell continued to author and file papers with the court on Storseth's behalf. In June 1978, the court granted Mr. Schuchart's motion to withdraw because of Riddell's interference and Storseth's request that Mr. Schuchart follow Riddell's directions in the case.

For the next 13 months, Riddell continued to file papers for Storseth, including another Motion for Appointment of Counsel. During that time, Riddell was transferred to the Clearwater facility which has no law library.

On July 16, 1979, the district court ordered that (1) the court clerk accept no further pleadings from Riddell, (2) counsel would not be appointed until Storseth personally made the request and agreed to abide by an attorney-client relationship without interference from third parties, and (3) the appeal from the state's ruling denying Riddell the right to correspond with Storseth was denied.

Storseth is back at the Corrections Center at Shelton. Riddell is at Clearwater.

Storseth appeals from the July 1979 order. ²

III. DISCUSSION

A. Inmate Assistance

Storseth contends that the district court denied him meaningful access to the courts by conditioning appointment of counsel on his agreement to proceed without Riddell's interference and control, and by ruling that Riddell cannot file pleadings on his behalf. He argues that he has a right to inmate assistance and to Riddell's services in particular because the state has not provided adequate alternatives of access.

1. Right to Inmate Assistance

It is well established that inmates have a constitutional right of access to the court. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). That right is premised on the Due Process Clause and assures inmates of the opportunity to challenge violations of their constitutional rights, Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974), and unlawful convictions. Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974). This right adheres to civil rights as well as to habeas corpus proceedings. Wolff, supra, 418 U.S. at 579, 94 S.Ct. at 2986.

The question before us is whether Storseth has enjoyed and presently has access to the courts without Riddell's services. The crux of our inquiry is whether Storseth's access has been and is "meaningful". Bounds, supra, 430 U.S. at 823, 97 S.Ct. at 1495.

The state has the affirmative duty to provide constitutionally adequate access, id. at 829, 97 S.Ct. at 1498, and bears the burden of demonstrating the adequacy of the chosen method. 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). Constitutionally acceptable means of access include provision of an adequate law library, Bounds, supra, 430 U.S. at 828, 830, 97 S.Ct. at 1498-1499, or a professional or quasi-professional legal services plan. Id., at 831, 97 S.Ct. at 1499.

When no adequate alternative is available, an inmate may have the assistance of an inmate writ writer. Johnson v Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969). The state, however, retains the authority to impose "reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and seeking of assistance in the preparation of applications for relief...." Id. When meaningful alternatives are provided, the state may bar inmate writ writers altogether. Id.

Storseth argues that Riddell is his only meaningful avenue of access because (1) court appointed counsel is only a mere possibility and is not a state-provided alternative, and (2) the state has not proven the adequacy of the prison law libraries, the legal services program, or other inmate assistance. The state responds that Storseth has enjoyed meaningful access through all of these alternatives.

Appointed counsel, whether state or court provided, offers a meaningful, and certainly the best, avenue of access to an indigent inmate. An attorney is in a better position than the inmate or inmate writ writer to promote efficient and skillful handling of the inmate's case. Bounds, supra, 430 U.S. at 831, 97 S.Ct. at 1499. And he is able to avoid the disciplinary problems associated with writ writers. Id.

Although there is no constitutional right to appointed counsel for § 1983 claims, Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980), this option is and has been available to Storseth since February 1978. By appointing Mr. Schuchart and later offering to appoint new counsel, the court has exercised its discretion and has converted this option from a mere possibility into a definite, available avenue of access. Storseth has not taken advantage of it because of his choice not to accede to the court's conditions.

Storseth's choice does not entitle him to inmate assistance or to Riddell's services. When an adequate method of access is provided and an inmate does not avail himself of it, he may not insist on an avenue of his choosing. Ramos v. Lamm, 639 F.2d 559, 583 (10th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Nor does he have any right to the services of a particular writ writer. See Fair v. Givan, 509 F.Supp. 1086, 1090 (N.D.Ind.1981). It is the state's option to choose among the avenues of access or combinations thereof to satisfy its constitutional obligation. Bounds, supra, 430 U.S. at 828, 97 S.Ct. at 1498.

This situation is analogous to a defendant's rejection of an offer of appointed counsel for appeal when appointment is discretionary. That defendant cannot then claim that the state infringed on his constitutional right of access by not providing him with another method of access, such as a law library. Bell v. Hopper, 511 F.Supp. 452, 453 (S.D.Ga.1981). His only option is to proceed pro se. Id. at 453.

We decline also Storseth's invitation to excise court-appointed counsel from the list of constitutionally acceptable means of access because it is not a state-provided alternative. He would have us ignore impermissibly the constitutional concern at the heart of our inquiry for the sake of adherence to form. See Bounds, supra, 430 U.S. at 823-25, 97 S.Ct. at 1495-1496.

That concern is whether the indigent defendant is assured an adequate, effective and meaningful opportunity to present his claims to the court. See id. at 822-23, 97 S.Ct. at 1495-1496. Appointed counsel, whether provided through the court's exercise of discretion or by the state, assures the inmate of that opportunity.

We conclude also that the court's condition precedent to appointment is reasonable. The court has the inherent power to determine who may practice law before it. An attorney representing an indigent inmate cannot be expected to nor should he direct and develop an inmate's case on the directives of an inmate writ writer who is not his client.

Even if we were to find that court-appointed couns...