Ward v. Kort

• Citation: 762 F.2d 856
• Decision Date: 20 May 1985
• Docket Number: No. 82-1418,82-1418
• Parties: Ray WARD, Plaintiff-Appellant, v. Haydee KORT, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 856

762 F.2d 856

Ray WARD, Plaintiff-Appellant, v. Haydee KORT, Defendant-Appellee.

No. 82-1418.

United States Court of Appeals Tenth Circuit.

May 20, 1985.

Alfred J. Coco, Denver, Colo., for plaintiff-appellant.

M. Tracy James, Asst. Atty. Gen., Human Resources Section, Denver, Colo. (Duane Woodward, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Solicitor Gen., Denver, Colo., were also on brief), for defendant-appellee.

Debra J. Moore and Brian M. Barnard, Salt Lake City, Utah, on brief, for Brian Logan, as amicus curiae.

Before HOLLOWAY, Chief Judge, and BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Chief Judge.

Plaintiff timely appeals the district court's affirmance and adoption of the recommendation of the magistrate that plaintiff's claim made under 42 U.S.C. Sec. 1983 of a denial of the right to meaningful access to the courts be dismissed. The controlling questions are (1) whether mental patients under commitment after being found not guilty of an offense by reason of insanity, as is the plaintiff, are within the constitutional guarantee of access to the courts as has been recognized with respect to persons imprisoned under criminal convictions; and if so (2) whether the Colorado contract arrangement with a Pueblo law firm for some 12 hours of service per week, but not including the preparation or filing of any legal proceedings, violates such a guarantee, Colorado having elected not to provide any law library facilities for the mental hospital and there being no law library facilities there available for such inmates.

We decide both questions in favor of plaintiff and reverse and remand for further proceedings to redress the constitutional deprivation by a modification of the plan in effect at the hospital.

I

Plaintiff Ray Ward is a patient confined in the Forensic Ward of the Colorado State Hospital at Pueblo. He has been a patient there since 1969 when he was committed pursuant to a finding that he was not guilty of an offense by reason of insanity. In November 1980 plaintiff filed a civil rights complaint, being granted leave to proceed in forma pauperis. His complaint asserted three claims including one of failure of the superintendent of the Colorado State Hospital to provide adequate access to legal materials and research materials, causing a denial of access to the courts. The other claims alleged in the complaint are not pursued on this appeal.

After a hearing, the magistrate found that the evidence established that the Colorado State Hospital has no library and that the only legal books available are the Colorado Revised Statutes in the administrative building. ¹ None of the inmates are trained in the law and there is no system of paralegals to assist the patients at the hospital. The magistrate further found, however, that the Colorado State Hospital has provided adequate access to the courts by furnishing an attorney, under a contract arrangement, to assist the patients. I R. 19. More specifically, the magistrate stated in part:

The Colorado State Hospital has, for many years, entered into a contract with the law firm of Jenkins, O'Rourke & Breitenbach to provide legal counseling services for the patients at the Colorado State Hospital. The contract specifically provides as follows:

"The Contractor shall provide patient counselling (sic) at the rate of $16.00 per hour of service rendered not to exceed 12 hours per week, including office research and preparation, for the period of this agreement without further written approval.

The Contractor shall not, directly or indirectly, receive compensation from any patient resulting from consultation rendered under this contract."

Mr. Breitenbach testified that he provides services such as making wills, helping draft contracts and legal pleadings, handling disputes with the patients and the Colorado State Hospital. He further assists patients in contacting the public defender, legal services or private counsel where it is deemed appropriate. He will provide legal research assistance for a patient and assist him in drafting papers. He will not appear as counsel of record in any proceedings in a court of law. In civil rights or habeas corpus proceedings, he will assist the patient in obtaining the necessary forms from the United States District Court, help in drafting the pleadings and provide research or case material as requested.

Ray Ward testified that he had met with Mr. Breitenbach and discussed some of the issues set forth in the pleadings. Mr. Breitenbach informed him that he could not file the action for the plaintiff. The plaintiff did not pursue the action at that time nor did he request any legal research to be provided him by Mr. Breitenbach.

Id. at 18.

The magistrate concluded:

The Colorado State Hospital's procedures may not be perfect because of some lack of communication to the patients. Further, the time limitation in the contract of 12 hours per week may be limiting if legal demands by the patients upon the attorney increase. The present evidence does not show that the time limitation of the contract has affected the patients' rights. The contract in no way limits the attorney's right to counsel the patient even in actions against the Colorado State Hospital.

Id. at 19.

The magistrate recommended dismissal of the case and, as noted, the district judge affirmed and adopted the magistrate's findings and conclusions and dismissed the action. I R. 29.

II

A.

On appeal, plaintiff contends that a right of access to the courts should be recognized for inmates confined under a civil commitment, as he is, to afford those patients a reasonable opportunity to identify their fundamental rights, to recognize violations of those rights, and to bring such violations before the courts for relief. For these purposes, he argues, the means of access to the courts provided by the Colorado State Hospital are constitutionally defective.

Plaintiff urges this court to apply the affirmative obligations of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), which dealt with such rights of convicted offenders, to mental institutions used for enforced confinement. Defendants under criminal charges who are found unfit to stand trial and are committed to a mental facility have already been held to have a constitutional right of access to the courts. Johnson by Johnson v. Brelje, 701 F.2d 1201, 1207 (7th Cir.1983). We agree that there is no logic in holding that persons under mental commitments like plaintiff are on a lower plane than convicted inmates and are not entitled to protection of the basic constitutional guarantee of access to the courts. "Access to the courts of the United States is a constitutional right guaranteed by the due process clauses of the fifth and fourteenth amendments .... This right of access to the courts cannot be infringed upon or burdened," as Chief Judge Lewis wrote in Silver v. Cormier, 529 F.2d 161, 163 (10th Cir.1976). See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977); McKay v. Hammock, 730 F.2d 1367, 1375 (10th Cir.1984) (en banc). We hold that plaintiff, as a person under a mental commitment, is entitled to protection of his right of access to the courts. Indeed, the State does not appear to dispute this proposition and instead merely argues that the means afforded at the hospital are adequate to protect this right. We turn now to that question.

B.

Plaintiff says that the legal services provided at the Colorado State Hospital do not afford meaningful access to the courts as defined by Bounds because (1) the contract provides too little an allocation of counsel's time to fulfill the needs of the patients; (2) the contract does not provide for any representation; and (3) the contract does not provide for adequate research on behalf of the patients. Brief of Appellant 12.

As stated for the Supreme Court by Justice White,

[t]he right of access to the courts, upon which [Johnson v. ] Avery was premised, is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.

Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974).

The Supreme Court has held that the Constitution guarantees inmates ... a right [of access to courts], see Bounds v. Smith, 430 U.S. 817 [97 S.Ct. 1491, 52 L.Ed.2d 72] (1977), in both habeas corpus, Johnson v. Avery, 393 U.S. 483 [89 S.Ct. 747, 21 L.Ed.2d 718] (1969), and civil rights actions, Wolff v. McDonnell, 418 U.S. 539, 577-80 [94 S.Ct. 2963, 2985-86, 41 L.Ed.2d 935] (1974)." ²

Rudolph v. Locke, 594 F.2d 1076, 1078 (5th Cir.1979). See also In re Green, 669 F.2d 779, 785 (D.C.Cir.1981); Cruz v. Hauck, 627 F.2d 710, 721 n. 22 (5th Cir.1980); Carter v. Mandel, 573 F.2d 172, 173 (4th Cir.1978) (per curiam).

In Bounds, 430 U.S. at 828, 97 S.Ct. at 1498, the Supreme Court held that the "right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers." The Court further noted that its main concern was " 'protecting the ability of an inmate to prepare a petition or complaint,' Wolff v. McDonnell, 418 U.S. at 576 ..." (emphasis added). 430 U.S. at 828 n. 17, 97 S.Ct. at 1498 n. 17; see Nordgren v. Milliken, 762 F.2d 851, 854, (10th Cir.1985), filed today; Ramos v. Lamm, 639 F.2d 559, 584-85 and n. 29 (10th Cir.1980) (Where alternatives to adequate library were considered, assistance to inmates was inadequate where evidence of State failed to show library clerks capable of helping any inmate draft a legal document.), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). The Supreme Court has stated:

Although it is essentially true, as petitioners argue, that a habeas corpus petition or civil rights complaint need only set forth facts giving rise to the cause of action, but see, ...