Prisoners Self Help Legal Clinic
 PO Box 798 • Newark • New Jersey 07101

Website: http:///pshlc.org

LEGAL ACCESS

	Although incarceration suspends many rights of prisoners, one right that courts have protected is the constitutional right of access to the courts. This right of access to the courts protects the ability of prisoners to prepare petitions and complaints. Courts have cited the Due Process Clause, the Equal Protection Clause, the First Amendment and the Privileges and Immunities Clause of Article IV of the Constitution as bases for the right of legal access.

	The legal access right is distinct from the right of indigent persons to have lawyers appointed for them under the Sixth Amendment and the Due Process Clause. This right to appointed counsel is limited to criminal proceedings and to civil proceedings that may deprive a person of liberty. But there is no constitutional right to appointed counsel in civil lawsuits. At most, the court has the discretion to appoint counsel to represent a prisoner in litigation over prison conditions or abuse. See Tabron v. Grace.... 

I.  	THE RIGHT: Prisoners’ right to legal access was established by the United States Supreme Court in Bounds v. Smith, 430 U.S.  817, 97 S.t. 1491 (1977). Unfortunately, it has been significantly limited by the more recent Supreme Court decision in Lewis v. Casey, 518 U.S. 343,  116 S. Ct.  2174 (1996). To state a legal access claim under Lewis, prisoners must now be able to show “actual injury.” 

	The right of legal access as established by Bounds has two components: 

A.	Affirmative Obligation:   The fundamental right of court access “requires prison authorities to 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.” Bounds, 439 U.S. at 828. The Supreme Court reasoned that without access to “adequate law libraries or “adequate assistance from persons trained in the law,” prisoners would be unable to take full advantage of their constitutional right of access to the courts. The Court pointed out that without reasonable access to law libraries or assistance from persons trained in the law, prisoners would be unable to do the research necessary to prepare their complaints adequately. 

1.			The Supreme Court also stated in Bounds that the right of access to the courts includes the State’s obligation to provide indigent prisoners “with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them.” Id. at 824-25. Obviously,   if you do the research necessary to prepare your complaints, but you cannot actually write your complaint or mail it to the court because you cannot get the legal materials to do so, then the State has frustrated your right of access to the courts.
			
B.	Negative Liberty:   The State may not interfere with utilization of the courts by citizens, including prisoners.   John L. v. Adams, 969 F. 2d 228, 235-37 (6th Cir.  1992)   (distinguishing affirmative obligation and duty of non- interference).

The right of legal access comes from various sources.  It has been found to be a “consequence” of due process,  and an “aspect” of equal protection.”  Murray v. Giarrantano, 492 U.S. 1, 11 n. 6 (1989). It has also been held to be included in the First Amendment right to petition the government. Hudson v. Palmer, 468 U.S. 517, 523 (1984).

II	LIMITATIONS ON THE RIGHT::   Lewis v. Casey,. The Lewis Court, though not explicitly overturning Bounds v. Smith, redefined the meaning of “court access” as it applies to prisoners. 

A.		Nature of the Obligation: Bounds “guarantees no particular methodology but rather the conferral of capability - the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.”   The lack of a per se rule is both good and bad for prisoners. For instance, the Supreme Court has held that merely allowing illiterates access to a library may not suffice.  Lewis, 116 S. Ct. at 2182.
		
1. 	Within days of the federal district court’s decision on remand from the Supreme Court in July 199, the Arizona Department of Corrections (ADOC) gave notice to all prisoners that all state prison law libraries, with one exception, would be permanently closed. The memo from the DOC Director said: “The law libraries are being eliminated because the U.S. Supreme Court has said they are not required for inmate legal access.” The law libraries were replaced by paralegals under contract with the DOC.  Each paralegal is to act as a “gateway” to the courts for as many as 2,5000 prisoners. The paralegals will only provide assistance for filling out “forms” for initial filing of “qualified legal claims.” The ADOC has decreed that only direct appeals from current convictions, habeas, section 1983 civil rights complaints and conditions of confinement cases determined to be “non-frivolous: are considered “qualified legal claims.” (This new system is clearly designed to restrict - rather than facilitate - access to the courts.)
		
B.		Actual Injury Requirement: The Supreme Court recently added this  requirement in Lewis v. Casey, and held that it is grounded in Article III of the Constitution. This is a significant change in the law and has been very detrimental to prison litigation. Compare the ruling in Lewis, 116 S.Ct. at 2179 (“ It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm...”) (emphasis supplied) with the  Supreme Court’s prior ruling  in Helling v. McKinney, 113 S.Ct. 2475, 2480-81
(1993) (risk is actionable if  “sure or very likely to cause... needless suffering the next week, or month or year...,” and even absent allegation”that the likely harm would occur immediately and even though the possible [harm] might not affect all of those [at risk] .”) (emphasis supplied). 	

1.	Under Lewis, a plaintiff must show a denial of access to court, not to a law library or to legal assistance, and he must “demonstrate that the alleged shortcomings ...hindered his efforts to pursue a legal claim.”  116 S.Ct.  at 2180.

2.	Lewis overruled previous cases which held that deprivation of “core requirements” of court access (law library access or legal assistance) is actionable without specific showing of prejudice.  See, e.g., Sands v. Lewis, 886 F.  2d. 1166, 1171 (9th Cir.  1989); Chandler v. Baird,  926 F. 2d 1057, 1063 (11th Cir.  1991) (suggesting that prejudice need not be shown in “systematic challenges to the “basic adequacy of materials and legal assistance,” but must be shown where deprivations are “minor and short-lived”). Cf. Lewis, 116 S. Ct. 2181 at n.4
.
3.	Example of Lewis v. Casey Standard in Third Circuit.  In Oliver v. Fauver, 118 F.3d 175 (3d Cir. 1997), the U.S. Court of Appeals for the Third Circuit affirmed a decision of the District Court of New Jersey which held that absent a showing of actual injury, a prisoner alleging interference with legal mail does not have a cause of action. Lorenzo Oliver, a New Jersey state prisoner, appealed his disciplinary conviction  and sanction in New Jersey Superior Court-Appellate Division, which upheld the hearing officer’s  determination. He then filed a complaint in federal district court, alleging various constitutional violations in the disciplinary process and also contending that on three separate occasions, guards had failed to mail his outgoing legal mail addressed to the state appellate court, the Attorney General’s Office, and the  Department of Corrections, and that, on one occasion, they had opened the outgoing mail. Oliver did not allege any specific injury resulting from these incidents. With respect to the legal access claim, the federal court granted summary judgment in favor of the DOC, holding that the prisoner’s failure to allege actual injury precluded relief. On appeal, Oliver contended that for “core” or central aspects of the right to legal access, such as violations involving the confidentiality of legal mail,  injury can be presumed and actual injury need not be shown. The Third Circuit rejected his argument, holding that the Supreme Court in Lewis did not distinguish between core and ancillary aspects of the legal access right. It held that in the aftermath of Lewis, all prisoner legal access claims require a showing of actual injury. What that means is that the prisoner must ‘demonstrate that the alleged shortcomings... hindered his efforts to process a legal claim.” Lewis.

  		3	Under Lewis, it is now necessary to show a “non-frivolous legal claim had been frustrated or was being impeded, “ 116 S. Ct. at 2181. Lewis thus imposes an unreasonable new burden, by mandating that prisoners challenging the adequacy of a prison law library or legal assistance first show that the lawsuit they wanted to pursue has some merit. Prisoners who may have a legitimate grievance to bring are thus forced to demonstrate its legitimacy, without reasonable access to a law library or other forms of help.
			
It is not, however, necessary to show, at least for liability purposes, that a case was lost that otherwise would have been won.  Gomez v. Vernon, 962 F. Supp. 1296, 1302 (D. Idaho 1997).

4.			What does “frustrated or impeded” mean?

a.	Some courts seem to assume that only dismissal or inability to file litigation satisfies the injury requirement.  See, Ingalls v. Florio, 968 F. Supp.  193, 203 (D.N.J. 1997), a case involving the Camden County Jail; Smith v. Armstrong, 968 F.Supp. 40, 48-49 (D.Conn, 1996) (holding in class action that individuals who had managed to file complaints despite lack of assistance had not been injured).

b.	Other courts have assumed that obstacles that interfere with the ability to present one’s case effectively are actionable.  Goff v.  Nix, 113 F. 3d 887, 891 (8th Cir.  1997) (holding that inability of co-plaintiffs to coordinate recruitment of witnesses for trial “impeded” a non-frivolous claim, though upholding rule barring them from corresponding under Turner standard); King v. Barone, 1997 WL 337032 at *4 (E.D. Pa.1997) (declining to dismiss claim based on confiscation of alleged exculpatory documentation, since it is “conceivable” this may have impeded the plaintiff’s petition for post-conviction relief). It is likely that delay in one’s ability to get
his or her case heard in court is an impediment, especially if one is trying to bring an action that could result in one’s freedom.

c.	Other courts explicitly reject the notion that inability to present a case well constitutes injury.   See Curtis v. Fairman, 1997 WL 159319 at *5 (N.D. Ill. 1997) (holding that denial of law library access to respond to a motion to dismiss is not actual injury because case citations and legal arguments are not absolutely necessary at this stage); Kain v. Bradley, 959 F.  Supp.  463, 468 (M.D. Tenn.  1997) (holding that plaintiff’s inability to discover a legal argument more successful than the one he made was not injury where he was able to submit some response to a motion).   But see Lewis, 116 S. Ct. at 2180 (citing dismissal because of inability to research pleading requirements as a example of actionable injury). It is not clear if it matters whether the inability to research comes before the complaint is written or at the point where it is necessary to defend the complaint against a motion.

5.			It is not clear whether actual injury is an element of proof or must be pled in the complaint.  See Pilgrim v. Littlefield, 92 F.  3d 413 (6th Cir.  1996) (pleading). It is thus always advisable to plead actual injury in the complaint.

C.		Boundaries of the Right of Legal Access.
		
1.	Types of proceedings to which the right applies include: criminal appeals, habeas petitions and civil rights actions. In the words of the Supreme Court,   the State must provide the tools “the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.”  Lewis, 116 S.Ct. at 2181-82.

However, it is not always clear what constitutes a  “conditions of confinement” case.  Does  it include, for example, tort suits for negligence in prison, or other state law claims?

2.	Stages of proceeding

a.	The right is to “bring to court a grievance that the inmate wishe[s] to present.”  The State need not “enable the prisoner to discover grievances” or “to litigate effectively once in court.” (!) Lewis, 119  S.Ct.  at 2181.

b.	Does this mean the right ends once the complaint is filed?   See Stewart v. Sheahan, 1997 WL 392073 at *3-*4 (N.D. Ill.  1997) (“...Stewart did succeed in putting his petition before the court.   If the judge ruled against him because Stewart did not have the resources to disabuse him of his misunderstanding of the law, this is a matter of effective argument....  Institutions are not required to provide inmates with the ability to argue the legal basis of their claims in court.”);  Benjamin v.  Jacobson, 935 F. Supp.  332, 352 (S.D.N.Y.  1996) (Bounds protects only a “rights of initial access to commence a lawsuit”), aff’d in part and rev’d in part on other grounds, 124 F. 3d 162 (2d Cir.  1997).   Some circuit courts  had reached this conclusion or something similar even before Lewis.

c.				The best reading of Lewis is that this is not the  holding.  “To demand the conferral of such sophisticated legal capabilities upon a mostly uneducated  illiterate prison population is effectively to demand permanent provision of counsel, which we do not believe the constitution requires.”   Lewis, 119 S.Ct. at 2181.   This reference to “sophisticated legal capabilities“ suggests that the Court’s intent is to disclaim an obligation to make uneducated prisoners “effective” litigators.   After all: “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm....”  Lewis, 119 S.Ct. at 2179.  A court does not “provide relief “ based only on a complaint; “presenting” a claim requires both defending the claim (e.g.’ through responding to motions to dismiss and for summary judgement) and moving it toward judgment (e.g., through discovery, motion practice, and ultimately, trial). See NAACP v. Meese, 615 F. Supp.  200, 206 n. 18 (D.D.C. 1985) (right of the court extends past pleading stages); Gilmore v. Lynch, 319 F. Supp. 105, 111  (N.D.Cal.  1970) right entails “all the means a defendant or petitioner might require to get a fair hearing from the judiciary”), aff’d sub nom. Younger v. Gilmore, 404 U.S.  15 (1971) (per curium).
It makes very little sense to require that the right of court access extend only to the initial filing of pleadings. The purpose of the right of court access is to permit prisoners to vindicate their legal rights, not just start lawsuits that go nowhere.  Therefore, it should encompass all phases of litigation, from beginning to end, which are required to get a fair hearing from the judiciary

D.			Standard of Review:  Actual injury will not be found to violate the right to court access if it results from regulations meeting the Turner  reasonableness test.  Lewis, 116 S.Ct. at 2185 (referring to delay caused by restrictions on access of lockdown prisoners). In Turner v. Safley, the Supreme Court articulated the standard for reviewing a prison regulation which is challenged on constitutional grounds: “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid f it is reasonably related to legitimate penological interests.” 482 U.S. 78, 89, 107 S.Ct. 2254 (1987).  Turner requires the court to weigh four factors: (1) There must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (2) A court must consider whether prisoners retain alternative means of exercising the circumscribed right. (3)  A court must take into account the costs that accommodating the right would impose on other inmates, guards and prison resources. (4) A court must consider whether there are alternatives to the regulation that ‘fully accommodate the prisoner’s right at de minimus cost to valid penological interests.’ 

		E.	Limits of Lewis 

1.	 Lewis addresses the prison’s affirmative obligation outlined in Bounds: interference, with litigation that is not within the scope of Lewis , for example, a prison’s refusal to mail a prisoner’s legal papers concerning child support or child custody, or its interference at the later stages of litigation, is not authorized by Lewis. It is not within the scope of the Lewis opinion.  See Rhoden v. Godinez, 1996 WL 559954 *3 (N.D. Ill. 1996) (even if Lewis limits the State’s   affirmative obligation to filing of  complaints, it “cannot, however, be read   to give officials license to thwart that litigation once it is filed.”) 
 
2.				 Lewis should not bar claims involving court access that implicate
			     	other rights which supply the injury required by article III.

a    	Examples: Claims of retaliation for pursuing litigation: the     retaliation is the injury .  See, e.g., Lawrence v.  Coughlin, 862 F. Supp.  1090 (S.D.N.Y. 1994) (awarding damages for
					retaliatory transfers and segregation).  See also
      	Clarke v. Stalder, 121 F. 3d 222, 227-28 (5th Cir. 1997) (holding that a prisoner in fear of being punished under a rule prohibiting threatening staff with legal action had standing).(1987).

b.					Claims of interference with confidential communication with counsel or others.  Mohammad v. Pitcher, 35 F. 3d 1081, 1083 (6th Cir. 1994) (holding that “chilling effect” of lack of confidentiality of legal mail meets the “injury in fact” requirement of Article III, as well as the requirements of an access to the courts claim);  accord,  Proudfoot v. Williams, 803 F.Supp. 1048 (E.D.Pa 1992)   But see Oliver v. Fauver, 118 F.3d 175, 177-79 (3d Cir.  1997) (holding that the claim of obstructing and, in one case, opening legal mail from the court was NOT actionable, where the mail was ultimately delivered; the “chilling effect” was not argued by the pro se litigant).

c.					Any claim that can be framed as anything other, or in addition to, a court access claim should be.  See, e.g., Chinchello v. Fenton, 763 F. Supp.  793 (M.D.  Pa 1991) (relying on Sixth Amendment).  Claims of invasion of attorney client confidentiality should be framed in Fourth Amendment terms.  

III.  	LEWIS AND INSTITUTIONAL REFORM (CLASS ACTION) LITIGATION

A.		Remedy
	
		1. 	Scope of the Remedy: System-wide challenges must be supported by widespread actual injury - “isolated instances” won’t do. Relief must be
			tailored to the injury that is shown. Lewis 116 S. Ct. at 2183-84.
		    
2.			Deficiencies that “have not been found to have harmed any individual plaintiff can not be the subject of remedial relief. Id. This raises problems concerning the definition of a particular deficiency.  For instance, in Lewis, the only injury shown involved illiterate prisoners. Therefore, only remedies benefitting illiterate prisoners were legitimate. Provisions benefitting non- English speaking prisoners were illegitimate. Id.  

3.			Remedial Procedure: Defendants should always have an opportunity to formulate relief before the court does. 116 S.Ct. at 2186.

4.			Remedies should not be “intrusive” and enmesh the courts in “minutiae.” 116 S.Ct. at 2185.

B. 	Standing in Class Actions: Lewis hints, but does not squarely state, that the plaintiffs’ case depends on proof from the named plaintiffs. 116 S.Ct. 2183 (noting that the district court “found actual injury on the part of only one named plaintiff.”) At least one class action district court decision had held that Lewis does require proof from the named plaintiffs. Walters v. Edgar, 973 F.Supp. 793 (N.D.Ill.1997).

		1. 	Existing Orders. Many court access orders will be vulnerable to attack under the Prison Litigation Reform Act (PLRA). For further discussion of the PLRA and its wide ranging consequences, see our pamphlet on Advanced Pro Se Litigation.