Michael Rivera v. Kevin Monko

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 20-2531

____________

MICHAEL RIVERA,

Appellant

v.

KEVIN MONKO; WYNSTON GILBERT;

JOHN DOE

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-19-cv-00976)

District Judge: Honorable Susan E. Schwab

Argued on April 30, 2021

Before: PHIPPS, NYGAARD and ROTH, Circuit Judges

(Opinion filed: June 15, 2022)

Devi Rao [ARGUED]

Roderick & Solange MacArthur Justice Center

501 H Street, NE

Suite 275

Washington, DC 20002

Counsel for Appellant

Michael J. Scarinci [ARGUED]

Office of Attorney General of Pennsylvania

Strawberry Square

15th Floor

Harrisburg, PA 17120

Counsel for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

Prisoners have a well-settled constitutional right to

access the courts to challenge their convictions and conditions

of confinement. But how far does that right extend? Does it

follow litigants to the courthouse door, only to retreat as soon

as their complaints have been filed? Or does it reach into the

courtroom as those complaints are adjudicated? Michael

Rivera argues that, at the time of his civil rights trial, he had a

2

clearly established right to access the courts at all stages of

litigation. He appeals the District Court’s order dismissing his

complaint against two corrections officers and a prison law

librarian who, he alleges, completely deprived him of the

ability to research evidentiary and court rules ahead of and

during his trial. He contends that, as a result, he lost a

potentially meritorious claim.

The District Court found that the defendants were entitled to

qualified immunity because, at the time of the alleged

violation, a prisoner had no clearly established right to access

legal materials at the trial stage of a civil rights case.

Precedent forces us to agree with the District Court:

existing Supreme Court and Third Circuit Court of Appeals

law had not clearly established a prisoner’s right to access the

courts after he or she filed a complaint. Going forward,

however, there should be no doubt that such a right exists. The

ability of a prisoner to access basic legal materials in a law

library, such as the Federal Rules of Civil Procedure, the

Federal Rules of Criminal Procedure, the Federal Rules of

Evidence, and the rules of the court in which the prisoner is

litigating, does not stop once a prisoner has taken the first step

towards the courthouse’s door. Prisoners need to continue to

have a right to access the courts after they file their complaints;

otherwise, the right is illusory. Under the facts alleged here,

the defendants violated this right, even though they may not

have been aware at the time that they did so. Thus, while

qualified immunity bars Rivera’s claim in this case, it would

not bar similarly situated prisoners’ claims in the future.

3

A. Background

Rivera is an inmate at SCI-Fayette. He was temporarily

transferred to SCI-Retreat in July 2017 in order to represent

himself in a trial challenging his conditions of confinement.1

He was assigned to the Restricted Housing Unit (RHU) from

which inmates may access a satellite “mini law library.”

Rivera’s trial was scheduled to begin on a Monday. On Friday,

he submitted a request slip to Lieutenant Monko, seeking

access to the mini law library. Lieutenant Monko stated that

Rivera could visit the library sometime that day and approved

his request for continuing access to the library throughout his

trial.

That evening, Sergeant Gilbert escorted Rivera to the

mini law library. The library did not contain any physical

books, only two computers. Both were inoperable. Sergeant

Gilbert told Rivera that he would “get with Lieutenant Monko

and the Law Librarian on Monday and try to get the computer

fixed.”2 He never did. The computers remained inoperable

during Rivera’s entire stay at SCI-Retreat. As a result, Rivera

had no way to access the Federal Rules of Civil Procedure, the

Federal Rules of Evidence, and the court rules.

Rivera then asked Sergeant Gilbert whether he could

borrow paper copies of the rules from the main law library

since he could not use the computers in the mini law library.

His request was denied because “the Law Librarian said no.”3

Rivera requested access to hard copies again, after his trial had

1

See Rivera v. O’Haire, No. 1:15-cv-1659 (M.D. Pa. 2017).

2

JA 37 (Am. Compl. ¶ 20).

3

JA 38 (Am. Compl. ¶ 22).

4

started, and was again refused.

Rivera alleges that this complete lack of access to legal

materials hindered his ability to represent himself at trial. He

claims that when he testified at trial, he did not know he needed

to provide foundational testimony about the unsworn

declaration and medical records he planned to introduce as

exhibits. The judge refused to admit his evidence on hearsay

grounds. The jury entered a verdict in favor of the defendants.

According to Rivera, access to the Federal Rules of Evidence

would have assisted him in being able to get his evidence

admitted and likely would have changed the outcome of his

trial.

B. Procedural History

Rivera filed a grievance shortly after the jury verdict,

alleging that he was denied access to legal materials at his trial.

He exhausted his administrative remedies through the prison

grievance process. He then filed a pro se action in

Pennsylvania state court against Lieutenant Monko, Sergeant

Gilbert, and the unnamed law librarian.4 The law librarian was

not served. Lieutenant Monko and Sergeant Gilbert removed

the case to United States District Court for the Middle District

of Pennsylvania and then moved to dismiss Rivera’s

complaint, contending that 1) Rivera’s complaint did not state

a viable access-to-courts claim, and 2) the defendants were

entitled to qualified immunity. The District Court5 awarded

4

Rivera v. Monko et al., No. 2019-cv-4215 (Ct. Com. Pl.

Luzerne Cty).

5

The parties agreed to have the motion adjudicated by

Magistrate Judge Susan E. Schwab, hereinafter referred to as

5

qualified immunity to all defendants (including the unserved

law librarian), finding that no legal authority clearly

established Rivera’s right to access his prison’s law library at

the time of his trial. Rivera appealed.

II.6

Our review of a district court’s dismissal under Federal

Rule of Civil Procedure 12(b)(6) is plenary.7 We “accept all

factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be

entitled to relief.”8 Complaints filed by pro se litigants, such

as Rivera, are liberally construed,9 but must still “allege

sufficient facts . . . to support a claim.”10 We also exercise

plenary review over a district court’s grant of qualified

immunity, which is an issue of law.11 In qualified immunity

cases, we accept the plaintiff’s allegations as true and draw all

the “District Court.”

6

The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291.

7

See McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir.

2009) (citation omitted).

8

Black v. Montgomery Cnty., 835 F.3d 358, 364 (3d Cir. 2016),

as amended (Sept. 16, 2016) (quotation marks and citation

omitted).

9

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

10

Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.

2013) (citation omitted).

11

Pro v. Donatucci, 81 F.3d 1283, 1285 (3d Cir. 1996) (citation

omitted).

6

inferences in his favor,12 even where, as here, a court decides

only whether a right is clearly established and not whether it

has been violated.13

III.

Properly construed under the liberal standard afforded

to pro se litigants, Rivera’s complaint does state an access-to-

courts claim. It is also clear from the complaint that Rivera’s

right to access legal materials before and during his civil rights

trial was violated. However, “[t]he standard for qualified

immunity is tilted in favor of shielding government actors and

. . . protect[s] all but the plainly incompetent or those who

knowingly violate the law.”14 Its protection is difficult to

break: immunity from liability attaches to government

officials except where 1) the plaintiff has alleged facts showing

a violation of a constitutional right, and 2) at the time of the

challenged conduct, the right the defendant violated was

clearly established.15 Only the first condition is met here. A

prisoner’s right to access the courts beyond the filing of the

complaint was not yet clearly established in the Supreme Court

or in this Court. It is now established in this Court, going

forward.

12

Torisky v. Schweiker, 446 F.3d 438, 442 (3d Cir. 2006)

(citation omitted).

13

Tolan v. Cotton, 572 U.S. 650, 657 (2014).

14

Zaloga v. Borough of Moosic, 841 F.3d 170, 175 (3d Cir.

2016) (citation omitted).

15

See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing

Saucier v. Katz, 533 U.S. 194, 201 (2001)).

7

A. Violation of a Constitutional Right

To state a claim for denial of access to the courts, an

inmate must allege both that he was denied “the tools . . .

need[ed] . . . in order to challenge the conditions of [his]

confinement” and that an actual injury resulted.16 “Where

prisoners assert that defendants’ actions have inhibited their

opportunity to present a past legal claim, they must show (1)

that they . . . lost a chance to pursue a ‘nonfrivolous’ or

‘arguable’ underlying claim; and (2) that they have no other

‘remedy that may be awarded as recompense’ for the lost claim

other than in the present denial of access suit.”17

Rivera in the allegations of his complaint has stated

such a claim: He had a potentially meritorious lawsuit

concerning his conditions of confinement. He had successfully

filed his complaint and survived pretrial proceedings.

However, because of his inability both before and at trial to

access the Federal Rules of Evidence and the Federal Rules of

Civil Procedure, he was not able to introduce important records

and statements into evidence. The jury decided against him.

He claims that if he had had access to the Federal Rules of

Evidence, he would have been able to introduce the reports and

statements into evidence and that the jury was likely to have

held in his favor. Through the denial of access to the law

library materials, his right of access to the courts was

terminated before he achieved his remedy.

Because we recognize that a prisoner has a

16

Lewis v. Casey, 518 U.S. 343, 355 (1996).

17

Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing

Christopher v. Harbury, 536 U.S. 403, 415 (2002)).

8

constitutional right of access to the courts in order to file a

lawsuit concerning the conditions of his confinement, it is

ludicrous to hold that the right of access stops once the

complaint has been filed. We know of very few lawyers who

could litigate such an action without being able to refer to the

Federal Rules of Civil Procedure and the Federal Rules of

Evidence. A pro se prisoner is much less likely to be able to

do so.

The Seventh Circuit Court of Appeals has agreed with

this standard holding that “a prisoner’s simple ability to file a

complaint is not dispositive.”18 “A prisoner states an access-

to-courts claim when he alleges that even though he

successfully got into court by filing a complaint . . ., his denial

of access to legal materials caused a potentially meritorious

claim to fail.”19

It is clear to us that when a prisoner asserts a potentially

meritorious conditions of confinement claim, his access to the

court must encompass continuing access to copies of court

rules and procedures.

The District Court did not address whether Rivera’s

complaint stated an access-to-courts claim. Instead, the court

jumped straight to the “clearly established” prong of the

qualified immunity analysis. It was within its discretion to do

so.20 However, we may affirm the District Court’s order for

any reason supported by the record.21 Here, there is no

18

Marshall v. Knight, 445 F.3d 965, 968-69 (7th Cir. 2006).

19

Id. at 696.

20

See Pearson, 555 U.S. at 243.

21

Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011)

9

pleading deficiency. Putting aside the question of whether the

right that Rivera claims was violated had been clearly

established, Rivera otherwise stated all the elements needed for

an access-to-courts claim.

1. Actual Injury

We will first consider whether Rivera was actually injured

by the defendants’ conduct because the “actual injury”

requirement of the access-to-courts standard implicates a

prisoner’s standing to bring a claim and thus implicates our

jurisdiction.22 Rivera alleges that the defendants

“intentionally” and “totally” denied him access to the Federal

Rules of Civil Procedure and the Federal Rules of Evidence

before and during his trial, which caused him to lose a

meritorious civil rights action because he was not able to

successfully introduce evidence necessary to prove his claim.23

Lieutenant Monko and Sergeant Gilbert argue that Rivera’s

alleged injury “fall[s] short of stating a viable access-to-courts

claim” because it does not describe his underlying civil rights

case in compliance with Federal Rule of Civil Procedure 8(a).24

They cite the Supreme Court’s decision in Christopher v.

Harbury, in which the Court concluded that “the underlying

cause of action . . . is an element that must be described in [an

access-to-courts] complaint . . . .”25 The Court did not,

however, go that far. It found that plaintiffs alleging denial of

access should generally comply with Rule 8(a) in describing

(citation omitted).

22

Kautzky, 494 F.3d at 680 (citing Lewis, 518 U.S. at 349).

23

JA 38–39 (Am. Compl. ¶¶ 23–25), JA 40 (Am. Compl. ¶ 29).

24

Monko and Gilbert’s Response Brief (“Resp. Br.”) 19–20.

25

536 U.S. at 415.

10

the underlying claim, but that they must only “describe the

underlying arguable claim well enough to show that it is ‘more

than mere hope,’ and [] describe the ‘lost remedy’” in such a

way that the defendants are on fair notice of it.26

Rivera has met the standard. His pro se complaint

identified the name and case number of his civil rights case,

Rivera v. O’Haire, and alleged that it was a “nonfrivolous legal

claim challenging his conditions of confinement.”27 Rivera

also alleged multiple times that his inability to research hearsay

rules as a result of the defendants’ conduct resulted in an

adverse verdict in Rivera v. O’Haire, and that he has “no plain,

adequate, or complete remedy at law to redress the wrongs”

described in his complaint.28 This put the defendants on fair

notice of the injury Rivera alleged.29 Christopher requires

nothing more.30

26

Monroe, 536 F.3d at 205–06 (quoting Christopher, 536 U.S.

at 416–17); see Erickson, 551 U.S. at 93.

27

JA 36 (Am. Compl. ¶¶ 11–12).

28

JA 39 (Am. Compl. ¶¶ 25–26), 41 (Am. Compl. ¶ 33).

Lieutenant Monko and Sergeant Gilbert also argue that

Rivera’s claim should be denied because he did not “point to

any particular hearsay exception” which would have made his

evidence admissible or “describe the contents of [the excluded]

documents.” Resp. Br. 20. We do not require pro se litigants

to allege facts so granularly. See Mala, 704 F.3d at 699 (citing

Haines v. Kerner, 404 U.S. 519, 520 (1972)).

29

See Christopher, 536 U.S. at 416.

30

Rivera also alleges that he was denied access to legal

materials during an earlier stay at SCI-Retreat in May 2017 and

another stay in August 2017. On appeal, he contends that these

allegations are less relevant than his allegations regarding the

11

2. Causation

Lieutenant Monko and Sergeant Gilbert also contend

that they cannot be held individually liable for Rivera’s injury

because they did not cause it. They argue that they are

“correctional officers, not computer technicians,” and that

Rivera did not “plead any facts plausibly demonstrating” his

assertion that the two officers were “responsible for the upkeep

and maintenance of the law library research computers.”31

However, Rivera was not required to do so.

Rivera’s contention that Lieutenant Monko and

Sergeant Gilbert were responsible for maintaining the law

library computers is a factual allegation, not a legal conclusion.

At the motion-to-dismiss stage, we accept all plausible non-

conclusory factual allegations as true, and then determine

whether they are sufficient to support a claim for relief.32 This

is especially true of pro se pleadings, which we construe

liberally.33 Here, it is reasonable to infer that Lieutenant

Monko and Sergeant Gilbert, who worked on the RHU when

Rivera was housed there, escorted him to and from the mini

law library, and pledged to ensure the computers would be

fixed, were responsible for the computers’ upkeep at the time

of Rivera’s trial—and thus impeded his access to the courts by

failing to have the computers repaired. The same is true for the

deprivation of access during his trial in July 2017, and we

agree. We need not decide whether these allegations allege an

actual injury, because his allegations relating to the July 2017

deprivation do.

31

Resp. Br. 21; JA 39 (Am. Compl. ¶ 27).

32

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

33

Erickson, 551 U.S. at 94.

12

law librarian, who Rivera plausibly alleges “was assigned to

maintain and oversee the mini-law library within the RHU at

SCI-Retreat.”34

Whether these defendants were in fact responsible is a

fact-bound question to be determined through discovery.

Moreover, Rivera plausibly alleged that Sergeant Gilbert and

the law librarian’s refusal to permit Rivera to access hard

copies of the basic federal rules that he requested caused Rivera

to be denied access to the courts. Thus, Rivera’s complaint

does not fail for lack of causation.

B. “Clearly Established”

Because we conclude that Rivera’s complaint otherwise

states a viable access-to-courts claim, we must examine the

second prong of the qualified-immunity inquiry: whether the

right Rivera alleges the defendants violated was clearly

established at the time of his trial. It is important that we first

pin down the specific right alleged. We will not define rights

34

JA 35 (Am. Compl. ¶ 9). The District Court found that the

law librarian, though unserved, was entitled to qualified

immunity because it was “clear from the face of the complaint”

that he was shielded from liability for the same reasons as

Lieutenant Monko and Sergeant Gilbert. See Alston v. Parker,

363 F.3d 229, 234 n.6 (3d Cir. 2004) (quoting Gillespie v.

Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)) (“[T]he plaintiff

should be given an opportunity through discovery to identify

the unknown defendants, unless it is clear that discovery would

not uncover the identities, or that the complaint would be

dismissed on other grounds.”), abrogated on other grounds by

Iqbal, 556 U.S. at 678; FED. R. CIV. P. 4(m).

13

“at a high level of generality” for clearly established

purposes,35 yet “[i]t is not necessary . . . that ‘the very action in

question has previously been held unlawful.’”36 Instead, the

question is whether a “‘general constitutional rule already

identified in the decisional law’ applies with obvious clarity.”37

Lieutenant Monko and Sergeant Gilbert argue that

“properly particularizing . . . the facts of this case, the question

is” whether “an inmate who, after his case has been pending

for nearly two years, when he is temporarily transferred to

another prison closer to the courthouse and placed in

segregated housing on the eve of trial, [is entitled to] access to

legal materials.”38 That is far beyond the level of specificity

needed to put the officers on notice of possible unlawful

actions.39 Unlike, for example, certain claims in the Fourth

35

See Michtavi v. Scism, 808 F.3d 203, 206 (3d Cir. 2015)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

36

Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (citation

omitted); see Dougherty v. Sch. Dist. of Phila., 772 F.3d 979,

993 (3d Cir. 2014).

37

Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017)

(quotation marks and citation omitted).

38

Resp. Br. 11.

39

In cases analyzing qualified immunity in the access-to-courts

context, courts have generally not defined the right at issue by

circumscribing the right to the exact factual contexts of each

case, as Lieutenant Monko and Sergeant Gilbert suggest we do

here. See e.g., Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir.

1995) (discussing the right as a “right of access to the courts .

. . [that is] adequate, effective, and meaningful.”) (citations and

internal quotations omitted); Al-Amin v. Smith, 511 F.3d 1317,

1325–26 (11th Cir. 2008) (defining right as right to access

14

Amendment context,40 the violation Rivera alleges is clear-cut:

he claims that the defendants’ actions deprived him of all

access to the legal materials he needed to try his claim. The

right to meaningfully access the courts includes a right to “the

tools . . . need[ed] . . . in order to challenge the conditions of .

. . confinement.”41 Thus, the right at issue is a prisoner’s right

to meaningfully access the courts, through access to a law

library, before and during his civil rights trial.42

courts which “requires that incoming legal mail from his

attorneys, properly marked as such, may be opened only in the

inmate’s presence and only to inspect for contraband” rather

than a right to have mail opened in the inmate’s presence where

the mail in question was sent by an attorney the inmate failed

to identify to prison guards, which was the exact factual

circumstance at issue); Siggers-El v. Barlow, 412 F.3d 693,

703–04 (6th Cir. 2005) (defining right as “right to access the

courts” and explaining that “an official can still be on notice

that his conduct violates established law even in novel factual

circumstances.”) (citations and internal quotations omitted);

Simkins v. Bruce, 406 F.3d 1239, 1241–43 (10th Cir. 2005)

(defining right as “meaningful right of access to the courts” and

holding that “in the context of alleged interference with inmate

legal mail that the prisoner’s constitutional right of access to

the courts is clearly established.”) (citations and internal

quotations omitted); Allen v. City & Cty. of Honolulu, 39 F.3d

936, 938–39 (9th Cir. 1994) (holding that inmate had clearly

established right of access to a law library).

40

See Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per

curiam).

41

Lewis, 518 U.S. at 355.

42

The District Court articulated the right at issue as the “right

to assistance in the form of a law library or other legal

15

We are left with the most difficult question, and the only

one the District Court addressed: whether the right at issue was

clearly established at the time the defendants allegedly violated

it. At the “clearly established” step of the qualified immunity

analysis, the question is “whether the officer had fair notice

that her conduct was unlawful.”43 Courts judge reasonableness

against the backdrop of the law at the time of the conduct.44

“Although there need not be ‘a case directly on point for a right

to be clearly established, existing precedent must have placed

the . . . constitutional question beyond debate.’”45 We first look

to factually analogous precedent in the Supreme Court and the

Third Circuit Court of Appeals46 to determine whether that

body of law clearly establishes the right at issue in such a way

that “a reasonable officer would anticipate liability for this

conduct.”47 We then consider whether a “robust consensus” of

assistance in presenting a claim at trial in a civil rights case.”

JA 23. But the Supreme Court found that there is no right to

“legal assistance in presenting a claim,” but rather a right to

present a claim, of which legal assistance or access to legal

materials may be a necessary component. See Lewis, 518 U.S.

at 351. So it is more accurate to define the right in terms of a

prisoner’s ability to meaningfully access the courts to present

his claim, rather than his ability to access “legal assistance.”

43

El v. City of Pittsburgh, 975 F.3d 327, 334 (3d Cir. 2020)

(quotation marks and citation omitted).

44

Kedra, 876 F.3d at 434; see Kisela, 138 S. Ct. at 1152.

45

El, 975 F.3d at 334 (quoting Kisela, 138 S. Ct. at 1152).

46

James v. N.J. St. Police, 957 F.3d 165, 170 (3d Cir. 2020)

(citing L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 247–48 (3d

Cir. 2016)).

47

Kedra, 876 F.3d at 450.

16

persuasive authority clearly establishes the right.48

The District Court granted qualified immunity because

the parties did not identify “controlling authority, or a robust

consensus of persuasive authority, holding that an inmate’s

right to affirmative assistance in the form of either a law library

or legal assistance extends to the trial stage of a civil rights

case.”49 We agree with the District Court that the right at issue

had not been clearly established at the time. A closer look at

Supreme Court and our Court’s case law shows that, properly

stated, the right the defendants violated was not beyond doubt-

--although going forward there is no doubt about the right.

1. Bounds v. Smith Establishes the Right of Access at

All Stages of Litigation

In Bounds v. Smith, the Supreme Court held that it was

“established beyond doubt that prisoners have a constitutional

right of access to the courts.”50 Before Bounds, the Supreme

Court had recognized only a negative right of access to the

courts—a right for prisoners to litigate claims without state

interference—and had never “extended [the right] . . . to apply

further than protecting the ability of an inmate to prepare a

petition or complaint.”51 Bounds broadened the right

substantially by holding that states must not only avoid

48

James, 957 F.3d at 170 (citation omitted).

49

JA 28.

50

430 U.S. 817, 821 (1977).

51

Wolff v. McDonnell, 418 U.S. 539, 576 (1974); see Johnson

v. Avery, 393 U.S. 483, 490 (1969); Ex Parte Hull, 312 U.S.

546, 549 (1941).

17

interfering with prisoners’ access to the courts, but must also

“shoulder affirmative obligations to assure all prisoners

meaningful access[.]”52 Noting that “meaningful access [] is

the touchstone,”53 the Court concluded that “the [] right of

access . . . requires prison authorities to assist inmates in the

preparation and filing of meaningful legal papers by providing

[] adequate law libraries or adequate assistance from persons

trained in the law.”54

The right to access the courts established by the Court

in Bounds was limited only by the caveat that the right must be

exercised in furtherance of “the preparation and filing of

meaningful legal papers.”55 Some courts, including the Third

Circuit, interpreted the right as freestanding: invokable by a

well-pleaded allegation that a library or legal assistance system

was inadequate, without a showing of actual injury.56 And—

importantly here—the Court did not limit the right of access’

mandate of assistance to the filing of initial legal papers.57

52

430 U.S. at 824.

53

Id. at 823 (citing Ross v. Moffitt, 417 U.S. 600, 611 (1974)).

54

Id. at 828.

55

Id.

56

See, e.g., Bieregu v. Reno, 59 F.3d 1445, 1455–56 (3d Cir.

1995); Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3d Cir. 1988)

(finding no actual injury required for “cases . . . directly

involving prisoners’ access to legal knowledge”); see generally

Sowell v. Vose, 941 F.2d 32, 34 (1st Cir. 1991) (collecting

cases).

57

The Court noted in passing that its “main concern” was

protecting the plaintiffs’ ability to file civil rights complaints

and habeas corpus petitions, 430 U.S. at 828 n.17, but did not

find that only that ability is constitutionally protected.

18

Indeed, the Court acknowledged that “a habeas corpus petition

or civil rights complaint need only set forth facts giving rise to

the cause of action,”58 yet found that law books or other forms

of legal assistance were still necessary to ensure meaningful

access to the courts. A prisoner could state a Bounds claim by

showing that he was deprived access to legal materials at any

time, no matter why or at what stage of a litigation he hoped to

use them. We accepted that proposition wholeheartedly,

holding in multiple cases that the right to access the courts

extended past the initial pleading stage.59

2. Lewis v. Casey Curtails the Right of Access

In Lewis v. Casey, 60 the Supreme Court restricted the

Bounds access-to-courts right in two important ways. First,

Lewis held that “an inmate alleging a violation of Bounds must

show actual injury” to his right to access the courts, reasoning

that Bounds did not establish a freestanding right to a prison

58

Id. at 825.

59

See Abdul-Akbar v. Watson, 4 F.3d 195, 204 (3d Cir. 1993)

(concluding Bounds would be met if “the mix of paralegal

services, copying services and available research materials” in

a prison’s satellite library “can provide sufficient information

so that a prisoner’s claims or defenses can be reasonably and

adequately presented”) (emphasis added); Peterkin, 855 F.2d

at 1042 (finding “[legal] assistance must be available for all

relevant legal proceedings”); see also Zilich v. Lucht, 981 F.2d

694, 695–96 (3d Cir. 1992) (concluding plaintiff stated access-

to-courts claim by alleging deprivation of legal materials

hindered defense in pending court proceedings).

60

518 U.S. 343 (1996).

19

law library or legal assistance program.61 Following Lewis, a

plaintiff alleging an access-to-courts violation based on an

inadequate prison law library or legal assistance program must

“demonstrate that the alleged shortcomings in the library or

legal assistance program hindered his efforts to pursue a legal

claim.”62 Second, Lewis held that only certain types of

claims—specifically, direct or collateral attacks on a prisoner’s

conviction or sentence, or civil rights suits challenging the

conditions of his confinement—could support an access-to-

courts injury.63

The District Court here found that the right to

“affirmative [legal] assistance” did not extend past the

pleading stage.64 Thus, the right Rivera alleges Lieutenant

Monko, Sergeant Gilbert, and the law librarian violated was

not “beyond debate” at the time of his trial.65

61

518 U.S. at 350–51.

62

Id. at 351.

63

Id. at 355.

64

Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011)

(overruled on other grounds by Coleman v. Tollefson, 575 U.S.

532 (2015)).

65

The District Court also cited several pre-Lewis cases from

other Courts of Appeals which involved forms of legal

assistance other than law libraries. Only the Tenth Circuit

directly upheld a system that cut off legal assistance after the

“initial pleading stage” of a suit. Compare Bee v. Utah State

Prison, 823 F.2d 397, 399 (10th Cir. 1987), with Brooks v.

Buscher, 62 F.3d 176, 182 (7th Cir. 1995) (holding that system

of “indirect access” through photocopies was adequate despite

delays in transmitting materials); Knop v. Johnson, 977 F.2d

996, 1006–07 (6th Cir. 1992) (holding that order requiring

20

We agree. Given the “broad scope” of § 1983 qualified

immunity,66 we must hold that the right Rivera alleges

Lieutenant Monko, Sergeant Gilbert, and the law librarian

violated was not “beyond debate.”

3. No Clear Consensus Exists Among Persuasive

Authority

Because the right of prisoners to meaningfully access

the courts at their civil-rights trials was not clearly established

under binding precedent, we must examine persuasive

authority to decide whether a robust consensus exists

concerning the right of access in analogous circumstances.67

prison legal assistance staffers to “represent” inmates in “a

variety of civil matters” was “more intrusive than necessary”);

cf. Peterkin, 855 F.2d at 1042; Morrow v. Harwell, 768 F.2d

619, 623 (5th Cir. 1985) (“[F]or access to be meaningful, post-

filing needs, such as the research tools necessary to effectively

rebut authorities cited by an adversary in responsive pleadings,

should be met.”) (citation omitted); Bonner v. Prichard, Ala.,

661 F.2d 1206, 1212 (11th Cir. 1981) (rejecting argument that

right to access courts is limited to preparation of complaints

and petitions).

66

Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) (citation

omitted).

67

See Mammaro v. N.J. Div. of Child Protection &

Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (holding that

“robust consensus” of persuasive authority can clearly

establish right if applicable controlling precedent does not

exist).

21

No robust consensus among other Courts of Appeals

sways this view. Only two courts since Lewis have directly

and precedentially addressed the temporal scope of the right of

access. As cited earlier, in Marshall v. Knight,68 the Seventh

Circuit Court of Appeals held that the right extends past the

filing of a complaint. Marshall alleged that officials reduced

his law library access to a “non-existent” level and

consequently hindered his ability to prepare for a post-

conviction evidentiary hearing.69 The district court found that

he failed to state a claim because Lewis “only requires that an

inmate be given access to the courts to file a complaint or

appeal.”70 The Court of Appeals reversed, finding that “a

prisoner’s simple ability to file a complaint is not

dispositive,”71 and “[a] prisoner states an access-to-courts

claim when he alleges that even though he successfully got into

court by filing a complaint[,] his denial of access to legal

materials caused a potentially meritorious claim to fail.”72

Marshall involved an evidentiary hearing rather than a civil

rights trial, but the plaintiff’s alleged injury otherwise closely

resembles Rivera’s.

68

445 F.3d 965 (7th Cir. 2006).

69

445 F.3d at 968–69.

70

Id. at 969.

71

Id.

72

Id. The Fourth Circuit adopted Marshall’s reasoning in a

non-precedential opinion. See Fox v. N. Carolina Prison Legal

Servs., 751 F. App’x 398, 400 (4th Cir. 2018) (citing Marshall;

reversing dismissal of access-to-courts claim where plaintiff

alleged prison impaired his ability to adequately respond to

defendants’ filings).

22

The Ninth Circuit Court of Appeals expressed a

different view in Silva v. Di Vittorio.73 Silva involved a claim

that officials confiscated and destroyed the plaintiff’s legal

documents in retaliation for pursuing civil rights cases against

them. The district court dismissed Silva’s access-to-courts

claim on the basis that the officials’ conduct did not stop him

from filing complaints in the civil rights lawsuits.74 On appeal,

Silva “acknowledg[ed] that prison officials have no affirmative

duty to help him litigate his claims once they have been filed,”

but “argu[ed] instead that prisoners have a right . . . to . . .

challenge[] . . . the conditions of their confinement . . . without

active interference by prison officials.”75 The Court of Appeals

reversed, concluding that Silva had stated a claim for denial of

access to the courts. In dictum, the court adopted Silva’s

argument distinguishing between the right to “affirmative

assistance” and against “active interference” in access-to-court

claims, finding that “Lewis . . . limited the right of access to the

courts to the pleading stage in cases involving prisoners’

affirmative right to assistance,”76 but that it “does not speak to

a prisoner’s right to litigate in the federal courts without

73

658 F.3d 1090 (9th Cir. 2011).

74

658 F.3d at 1096–97.

75

Id. at 1097.

76

658 F.3d at 1103. Silva defined “the pleading stage” as both

the filing of the complaint “and the preparation of any filings

necessary to rebut the State’s arguments when a court

determines that a rebuttal would be of assistance.” Id. at 1102

n.9 (quotation marks and citation omitted). But Lewis found

that the right of access only entitles prisoners to assistance in

presenting their factual claims to courts, not in rebutting the

State’s arguments. See Lewis, 518 U.S. at 354.

23

unreasonable interference.”77

A two-court circuit split demonstrates that no “robust

consensus” exists. Thus, the decisions by other Courts of

Appeals does not change our conclusion that no controlling

precedent clearly established a prisoner’s right to access the

courts at all stages of a civil rights case.

Nevertheless, today we recognize that a prisoner has a

valid access-to-courts claim when he alleges that the denial of

access to legal materials—before and/or during trial—caused

a potentially meritorious claim to fail. This aligns us with the

Seventh Circuit Court of Appeals’ position that Lewis does not

confine access-to-courts claims to situations where a prisoner

has been unable to file a complaint or appeal.78 Indeed, it

would be perverse if the right to access courts faded away after

a prisoner successfully got into court by filing a complaint or

petition. Once in court, a prisoner’s need to access legal

materials is just as great—if not greater—than when a prisoner

initially filed a complaint. Thus, while qualified immunity

unfortunately bars Rivera’s claims today, it will not bar such

claims in the future.79

77

Silva, 658 F.3d at 1103.

78

Marshall, 445 F.3d at 969.

79

Our concurring colleague proposes that only States—not

state actors—have a positive duty to assist inmates in accessing

the courts, and that state actors have only a negative duty to not

interfere with such access. However, state actors may be held

liable in their personal capacities for their official-capacity

conduct, see Hafer v. Melo, 502 U.S. 21, 27 (1991), and the

Constitution imposes positive duties on the state—to be done

by its actors—to assist those whom it imprisons and restricts

24

from fulfilling their own needs. See Farmer v. Brennan, 511

U.S. 825, 832 (1994) (collecting cases); Lewis, 518 U.S. at 356

(“[W]e leave it to prison officials to determine how best to

ensure that inmates with language problems have a reasonably

adequate opportunity to file nonfrivolous legal claims

challenging their convictions or conditions of

confinement.”). Courts routinely enforce those positive duties

against state actors in their personal capacities. See,

e.g., Farmer, 511 U.S. at 830, 848–50; Palakovic v. Wetzel,

854 F.3d 209, 224–34, 226 n.20 (3d Cir. 2017); A.M. ex rel.

J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 585–

88 (3d Cir. 2004). Enforcing the duty to ensure that people

incarcerated by the state have access to “[t]he tools” they

need “to attack their sentences, directly or collaterally” and “to

challenge the conditions of their confinement” is no

different. Lewis, 518 U.S. at 355; see, e.g., Allah v. Seiverling,

229 F.3d 220, 224 n.5 (3d Cir. 2000) (holding, without

distinguishing between assistance and interference or the

duties of States and their actors, that prisoner stated a personal

capacity Lewis claim against prison officials by alleging that

“while he was in administrative segregation he did not have

access to trained legal aids and as a result was unable to file a

brief in his post-conviction appeal”).

And any concerns about Pennsylvania corrections

officers’ personal financial liability should be allayed

by Pennsylvania corrections officers’ collective bargaining

agreement, under which Pennsylvania must furnish counsel for

and indemnify officers in cases like this. Art. 33,

§ 21(b), (c), https://www.hrm.oa.pa.gov/employee-

relations/cba-md/Documents/cba-pscoa-2021-2024.pdf; see

also Dep’t of Corr. v. Pa. State Corr. Officers Ass’n, 12 A.3d

346, 350–51 (Pa. 2011) (“[A]ccording to the Chief Counsel,

25

IV.

For the reasons discussed above, we hold that

Lieutenant Monko, Sergeant Gilbert, and the law librarian

were entitled to qualified immunity. The District Court’s order

dismissing Rivera’s complaint is affirmed.

employees are almost always defended and indemnified in

civil cases . . . .”).

26

Rivera v. Monko, No. 20-2531

PHIPPS, Circuit Judge, concurring in judgment.

The Majority Opinion articulates the right of access to

courts more broadly than ever before. As announced today, the

right of access imposes a positive duty on prison guards and

other employees in their personal capacities to supply law-

library materials or their equivalent to inmates. The Majority

Opinion recognizes that such a right is not clearly established,

and on that basis, it grants qualified immunity to two prison

guards who were sued by an inmate for violating that right.

While I agree with that outcome, I respectfully disagree with

the Majority Opinion’s expansion of the right of access.

As classically understood, a right held by one person

imposes a correlative legal duty on another. See Berisha v.

Lawson, 141 S. Ct. 2424, 2426 (2021) (Gorsuch, J., dissenting

from the denial of certiorari) (recognizing that most rights

come with corresponding duties).1 Those correlative duties

1

See generally Karl N. Llewellyn, The Bramble Bush 88 (2012

ed.) (“A man has a right only in regard to another man. . . . The

right is indeed the duty, a duty seen other end to. The relation

is identical; the only difference is in the point of observation.”

(emphasis in original)); Arthur L. Corbin, Rights and Duties,

33 Yale L.J. 501, 502 (1924) (“[A] jural right is a relation

existing between two persons when society commands that the

second of these two shall conduct himself in a certain way (to

act or to forbear) for the benefit of the first. A ‘right’ exists

when its possessor has the aid of some organized governmental

society in controlling the conduct of another person. The first

is said to have a ‘right’ against the second and the latter a ‘duty’

to the first.”); Wesley Newcomb Hohfeld, Some Fundamental

1

may be positive (to take action) or negative (to refrain from

action).2 Here, the Majority Opinion errs by imposing positive

duties on prison guards correlating to an inmate’s right of

access.

Textually, it is difficult to associate specific duties with the

constitutional right of access to courts because the precise

source of the right is unsettled.3 But an examination of

Legal Conceptions as Applied in Judicial Reasoning, 23 Yale

L.J. 16, 30–32 (1913) (modeling rights and duties as jural

correlatives); 1 William Blackstone, Commentaries *118–19

(“Now the rights of persons that are commanded to be observed

by the municipal law are of two sorts; first, such as are due

from every citizen, which are usually called civil duties; and,

secondly, such as belong to him, which is the more popular

acceptation of rights or jura. Both may indeed be comprized

in this latter division; for, as all social duties are of a relative

nature, at the same time that they are due from one man, or set

of men, they must also be due to another.” (emphases in

original)).

2

See Wesley Newcomb Hohfeld, Fundamental Legal

Conceptions as Applied in Judicial Reasoning, 26 Yale L.J.

710, 724–25 (1917) (comparing positive and negative duties);

see also Joseph William Singer, The Legal Rights Debate in

Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis.

L. Rev. 975, 1044 (1982) (citing John W. Salmond, First

Principles of Jurisprudence 172 (1893)).

3

See Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002)

(identifying several different constitutional provisions that

may serve as the basis for the right). It may be that the

identification of multiple, separate sources of the right of

2

precedent reveals a general rule and a modified rule for

inmates. Generally, the right of access imposes only negative

duties: States and state actors cannot impede access to courts.

See, e.g., Tennessee v. Lane, 541 U.S. 509, 523 (2004). But in

the prison setting, incarceration restricts inmates’ access to

courts. And that reality has led to two modifications to the

right of access for prisoners. First, the Supreme Court has

imposed a positive duty on States in their sovereign capacities

to provide inmates with law-library materials or their

equivalent. See Bounds v. Smith, 430 U.S. 817, 824 (1977)

(requiring “States to shoulder affirmative obligations to assure

all prisoners meaningful access to the courts” (emphasis

added)).4 Second, the negative duty in the prison setting is not

access reflects the specific context in which the right has been

invoked. Compare, e.g., Chambers v. Balt. & Ohio R.R. Co.,

207 U.S. 142, 148 (1907) (grounding the right of access to

courts in the Article IV Privileges and Immunities Clause

where an out-of-state plaintiff sought to bring suit in a

neighboring state’s courts) with Boddie v. Connecticut,

401 U.S. 371, 380–81 (1971) (grounding the right in the

Fourteenth Amendment Due Process Clause where filing fees

prevented a couple from having an opportunity to be heard on

a divorce action). An inmate’s right of access for a direct

appeal of a conviction or sentence may have a different

constitutional grounding than the right has in the context of a

collateral attack on a criminal judgment or a civil action

challenging the conditions of confinement.

4

See also Lewis v. Casey, 518 U.S. 343, 355 (1996)

(explaining that the required materials or services are those

needed for inmates “to attack their sentences, directly or

collaterally, and in order to challenge the conditions of their

confinement”); Simmons v. United States, 142 S. Ct. 23, 24

3

as rigorous as it would otherwise be – it allows restrictions on

access for “legitimate penological interests.” Turner v Safley,

482 U.S. 78, 89 (1987); see also Lewis v. Casey, 518 U.S. 343,

350 (1996) (explaining that the right of access “prohibit[s] state

prison officials from actively interfering with inmates’” right

of access to courts). Thus, an inmate’s right of access imposes

a positive duty on States (to supply rudimentary law-library

materials or their equivalent) and a mitigated negative duty on

States and state actors (to refrain from impeding access to

State-provided law-library materials without legitimate

penological justification). But the right of access does not

impose a positive duty personally on state actors, such as

prison employees, to ensure that prison law libraries are

furnished and stocked with the required materials.5

(2021) (Sotomayor, J., statement respecting the denial of

certiorari) (emphasizing that prisons have the obligation to

provide legal materials and tools inmates need to attack their

sentences); Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir.

2000); but see Lewis, 518 U.S. at 365 (Thomas, J., concurring)

(finding no constitutional basis for requiring the government to

finance an inmate’s right of access).

5

The Majority Opinion rejects any distinction between States

and individuals in the allocation of positive duties and negative

duties in the context of the right of access. Instead, it imposes

on individuals the same positive duty that States, in their

sovereign capacities, have to supply and furnish law-library

materials for inmates. In so doing, it takes comfort in extra-

record evidence suggesting that corrections officers will be

indemnified for breaching such a duty. But an indemnification

agreement should not influence the announcement of a new

constitutional obligation.

4

Under these rules, the prison guards here are entitled to

judgment as a matter of law. Rivera claims that the guards

violated his right of access while he was temporarily housed at

a prison closer to the federal courthouse holding a two-day jury

trial on his pro se excessive-force claim against other prison

guards. See Rivera v. O’Haire, No. 1:15-cv-1659 (M.D. Pa.).

Before trial, Rivera wanted law-library materials, and two

guards at his temporary prison took him to the mini law library,

but it lacked the resources that he wanted. Rivera and one of

the guards attempted to obtain those materials from the

internet, but they could not log on. Critically, the materials that

Rivera wanted were unavailable because the prison did not

provide them – not because either guard restricted his access to

otherwise available resources. Thus, on the undisputed facts,

neither guard interfered with Rivera’s access to prison law-

library materials, much less did either guard do so without

legitimate penological justification.

Rivera went to trial and lost, but nothing in the record

indicates that he raised his access issue in that proceeding.

Instead, he sued the two guards at the prison where he was

temporarily housed for violating his right of access. The

District Court rejected Rivera’s claim at summary judgment.

In validating Rivera’s right-of-access claim, the Majority

Opinion dramatically expands the right. It does so by grafting

the State’s positive duty onto individual-capacity actors. But

the State as sovereign, not an individual-capacity actor,

effectuated the inmate’s incarceration, and thus, any positive

duty should be borne only by the State. By extending the

positive duty beyond States, the Majority Opinion makes

guards and other prison employees personally liable if a prison

law library fails to furnish law-library materials or their

5

equivalent. That is new; that is bold; and that is a

misapprehension of the Constitution.

6