Taylor v. List, 87-15003

• Citation: 880 F.2d 1040
• Decision Date: 06 June 1989
• Docket Number: No. 87-15003,87-15003
• Parties: James F. TAYLOR, Plaintiff-Appellant, v. Robert LIST, Attorney General, Patrick B. Walsh, Deputy Attorney General, Department of Prisons, an administrative agency for the State of Nevada, Charles L. Wolff, Jr., Director, Boyd Marsing, Superintendent, David E. Watson, Superintendent, Roger Belleville, Lieutenant, Robert Freeman, Psychiatrist, and Does, John and Jane, 1 through 20, employees and former employees, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1040

880 F.2d 1040

James F. TAYLOR, Plaintiff-Appellant, v. Robert LIST, Attorney General, Patrick B. Walsh, Deputy

Attorney General, Department of Prisons, an administrative

agency for the State of Nevada, Charles L. Wolff, Jr.,

Director, Boyd Marsing, Superintendent, David E. Watson,

Superintendent, Roger Belleville, Lieutenant, Robert

Freeman, Psychiatrist, and Does, John and Jane, 1 through

20, employees and former employees, Defendants-Appellees.

No. 87-15003.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1989 ^*.

Decided July 17, 1989.

James F. Taylor, Carson City, Nev., pro se.

Brian McKay, Atty. Gen., Criminal Div., John Cary, Deputy Atty. Gen., Criminal Div., Carson City, Nev., for defendants-appellees.

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

Before CHOY, ALARCON and LEAVY, Circuit Judges.

CHOY, Circuit Judge:

James F. Taylor ("Taylor"), a Nevada state prisoner, appeals pro se from the district court's entry of summary judgment in favor of the defendants in Taylor's 42 U.S.C.A. Sec. 1983 action. The district court held that Taylor had failed to establish the existence of a material fact with regard to his constitutional claims and that certain defendants were not liable under section 1983 because there was no evidence of their personal participation in any deprivation of constitutional rights which may have occurred.

In his affidavits submitted in opposition to the summary judgment motion, Taylor raised genuine issues of material fact regarding actions by defendants Boyd Marsing ("Marsing"), Superintendent at the Nevada State Prison (the "prison"), and David E. Watson ("Watson"), Acting Captain of the prison's Maximum Security Facility, which may have deprived Taylor of his Sixth Amendment right to self-representation. The defendants did not deny or rebut Taylor's factual allegations in their summary judgment motion or in their reply to Taylor's opposition. Thus, we reverse the judgment in favor of defendants Marsing and Watson and remand the case for trial. The judgment in favor of all remaining defendants is affirmed.

FACTS

In 1976, Taylor and two other prisoners were indicted for murder and attempted murder after participating in a riot at the prison. Taylor initially invoked his constitutional right to self-representation. One month prior to trial, Taylor requested that counsel be appointed. His request was denied and Taylor was convicted and sentenced to death. The Nevada Supreme Court overturned the conviction because of the denial of counsel. Ross v. State, 97 Nev. 40, 623 P.2d 980 (1981). Taylor then pled guilty to two counts of murder and received concurrent life sentences without possibility of parole.

Taylor filed this 42 U.S.C. Sec. 1983 action on November 10, 1980, ¹ alleging that the defendants deprived him of constitutional rights during his criminal trial while he was representing himself. During the trial, Taylor was housed in administrative segregation because of his participation in the riot and thus was not given personal access to the prison law library. He secured a state court order requiring that he be allowed two visits per day from inmate law clerks and be allowed to request up to two books per visit on an exchange basis. In his complaint, he alleged that the defendants The defendants moved for summary judgment, arguing that an examination of the numerous motions and documents filed with the state court prior to and after the criminal jury trial proved that Taylor was not denied access to the courts. The defendants contended that Taylor had failed to specify a single instance of actual denial of access to the courts. They also contended that Taylor had stated no facts showing any personal participation in the alleged violations by defendants Robert List ("List"), Patrick B. Walsh ("Walsh"), Charles L. Wolff ("Wolff"), Marsing, and Watson. Thus, they argued, the action should be dismissed as to those defendants.

prevented him from preparing a defense and presenting evidence and testimony on his behalf by (1) denying him personal access to prison law clerks and use of law books in violation of the state court order; (2) interfering with the prison law clerks' access to witnesses while the law clerks were assisting Taylor in his defense; and (3) intimidating and coercing a witness from giving expert testimony on Taylor's behalf.

In his opposition to the motion for summary judgment, Taylor alleged that List, the state Attorney General, and Wolff, the Director of the prison, were liable as a result of their knowledge of and failure to prevent the alleged constitutional violations by their subordinates. Taylor also alleged that Walsh, the Deputy Attorney General in charge of prosecuting Taylor, was liable because Walsh told the state court on two occasions that Walsh would talk to the prison officials about the need for compliance with the court's order regarding access to the law clerks and law books. Taylor alleged that Marsing and Watson directly prevented Robert Freeman ("Freeman"), the prison psychiatrist and a named defendant in this action, from testifying on Taylor's behalf after Freeman had agreed to do so. Finally, Taylor alleged that Marsing, Watson, and Roger Belleville ("Belleville") personally stopped law clerks and law books from being presented to Taylor.

Taylor attached his own affidavit as an exhibit to his opposition memorandum. The affidavit stated that prior to securing the state court order, he had told Marsing on three separate occasions about his problems with getting legal research material and not being allowed to see law clerks. Taylor refused to lock up in his cell on several dates in an effort to get the problems corrected, but still nothing was done. On January 11, 1978, Taylor notified the state court that he was still being denied access despite the court order. Taylor was denied use of certain research materials which could not be checked out of the library, including the United States Code Annotated, the Nevada Revised Statutes, certain form books, certain manuals on evidence, constitutional rights, and trial procedure, a law dictionary, Federal Practice and Procedure, and the Federal Digest. He stated that prison law clerk Bernard Ybarra ("Ybarra") had notified Taylor in writing that Ybarra, Robert Stickney ("Stickney"), who was also a prison law clerk, and Leon Harley Anderson, another inmate, would testify as to the prison guards' refusal to allow interviews of potential witnesses to the riot and as to Marsing's and Watson's actions in preventing Freeman from testifying. Taylor attached as an exhibit a copy of the letter from Ybarra.

Taylor also attached an affidavit from Ybarra. Ybarra stated that Marsing and Watson had told the law clerks they would have access to Taylor and to potential witnesses within the prison. Marsing and Watson did not allow the law clerks to interview or obtain statements from any witnesses, however, even though several prisoners sent messages to the law clerks requesting interviews concerning the defense and offering to testify at trial. Ybarra assisted in research and preparation of motions; Stickney was responsible for visiting Taylor in his cell and keeping Taylor informed of the events at trial. Prior to and during the trial, there were times when Stickney was denied access to Taylor, which prevented Taylor from obtaining important information concerning the developments at trial and giving directions as to his defense. Taylor often was unable to request specific cases from the law library Ybarra recalled that Stickney met with Freeman at Ybarra's suggestion to ask if Freeman would testify at trial. According to Stickney's notes of the meeting, which Ybarra said he had read, Freeman told Stickney that Freeman was willing to testify on the ability of purported eye witnesses to observe matters in a crisis situation such as the riot. Freeman would have testified that eyewitnesses who had been in danger themselves during the riot would tend to be unreliable and unable to make the types of observations some of the eyewitnesses claimed to have made. Ybarra stated that he read Stickney's notes from a second meeting Stickney had with Freeman. The notes indicated that Marsing and Watson were present at the meeting and told Stickney they had directed Freeman not to testify at the trial.

because he did not have access to digests to determine which cases were relevant.

Subsequently, Taylor filed an additional affidavit from Stickney. Stickney's affidavit stated that prior to and during the trial, Taylor was not permitted to interview witnesses and Stickney was denied access to various inmate witnesses by Marsing and Watson. He was denied access to Taylor on numerous occasions. He spoke to Freeman concerning the possibility that Freeman would testify. During a second meeting with Freeman, Stickney was told by Marsing and Watson that they had directed Freeman not to testify on behalf of Taylor because Freeman was a state employee. ²

In their reply to Taylor's opposition, the defendants addressed Taylor's factual assertions only by saying that Taylor had failed to cite any specific instances of denial of access to the courts. The defendants did not introduce any affidavits or other evidence to refute Taylor's factual assertions; instead, they relied on their legal arguments to support their summary judgment motion.

The summary judgment motion was referred to a magistrate who issued a report on January 14, 1987, in which she recommended that the defendants' motion be granted because Taylor had failed to show a genuine issue of material fact in connection with his constitutional claims and had failed to establish personal participation by some of the defendants. The district court issued an order on November 13, 1987, in which it adopted the magistrate's recommendation as to the defendants for whom Taylor had been unable to show personal...