Straub v. Monge

HILL, Circuit Judge,

specially concurring:

Once we determined that the district court’s determination of indigency was not clearly erroneous, we needed only to decide whether an indigent inmate, faced with defending himself in a civil forfeiture action brought by the state, who is not assisted by counsel in that defense, may be required to seek a court order before being allowed to use a law library. Because the majority opinion responds negatively to that query, I do not dissent. However, I am unable to concur in the majority’s opinion.

By addressing the issue of access to non-indigents, in a case where the prisoner was found indigent, the majority unnecessarily expands the holding of this case. The district court supported its opinion on alternative grounds out of an abundance of caution. Had we found the finding of indigen-cy clearly erroneous, it would have been necessary to address the alternative holding. We did not so find, thus our task is finished. We need not address issues based on a hypothetical situation.

I would like to dismiss the second part of the majority opinion as harmless dicta. *1471 However, the majority does not treat it as such, and I am concerned that it will not be read as such. Thus, I feel compelled to write separately, and point out that the majority expands Bounds’ holding in two important ways, neither of which is justified by the facts of this case.

First, the majority flatly overrules Wilson v. Zarhadnick, 534 F.2d 55 (5th Cir. 1976). It claims that this action is required by a simple reading of Bounds. I do not find the issue so clear. It is true that Bounds, and subsequent decisions in the circuit courts, have required that the states “assure all prisoners meaningful access to the courts.” Bounds, 430 U.S. at 824, 97 S.Ct. at 1496 (emphasis added). See also Hawthorne v. Wells, 761 F.2d 1514 (11th Cir.1985); Cruz v. Hauck, 627 F.2d 710 (5th Cir.1980). However, when the majority states, “the state cannot force a person with financial means, who would otherwise not hire a lawyer, to hire a lawyer because of incarceration, any more than the state can deny access to an indigent,” it breaks new ground. This proposition does not relate to the words “all prisoners.” In truth, it redefines “meaningful access.” According to the majority opinion, not only must a prisoner have access to the courts, he must also have the choice between hiring an attorney and proceeding pro se — the latter at state expense.

The economic and logistical problems imposed by the majority’s expansion of Bounds should not be taken lightly. While it may not be difficult for a federal prison with a large library to provide all inmates with access to it, many state-run jails, such as the one that confined Mr. Straub, are not equipped with such facilities. Under the majority view, state authorities must either finance a complete library or surmount the logistical and security related problems of transporting inmates to public libraries.

These considerations have been taken into account by other federal courts when limiting Bounds’ impact in a slightly different context. At least three circuit courts have held that where an indigent criminal defendant refuses court-appointed counsel, the state does not have an obligation to give him access to a law library so that he may proceed pro se. In so holding, the Fourth Circuit Court of Appeals explained, “We do not read Bounds to give an option to the prisoner as to the form in which he elects to obtain legal assistance.” United States v. Chatman, 584 F.2d 1358 (4th Cir.1978) (emphasis in original). See also United States ex rel. George v. Lane, 718 F.2d 226 (7th Cir.1983); United States v. Wilson, 690 F.2d 1267 (9th Cir.1982); cf. Hooks v. Wainwright, 775 F.2d 1433 (11th Cir.1985) (Bounds does not require that the state provide both access to a law library and assistance from “persons trained in the law”).

The question here is also whether “meaningful access” means that the state must bear the burden of an incarcerated inmates “choice” to proceed pro se. Allowing economics into the equation is not an impermissible step. The Supreme Court in Bounds was careful to note:

This is not to say the economic factors may not be considered, for example, in choosing the methods used to provide meaningful access. But the cost of protecting a constitutional right cannot justify its total denial. Thus, neither the availability of jailhouse lawyers nor the necessity for affirmative state action is dispositive of respondents’s claims. The inquiry is rather whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.

With this in mind, I submit that “meaningful access” need not be interpreted as broadly as the majority suggests. In fact, Bounds may be interpreted to mean that states are required to fill in the gaps, and provide access to those prisoners who would otherwise not have access, thus making sure that “all” prisoners do have access. Such an interpretation of Bounds is not as implausible as the majority opinion implies. As we noted in Hooks v. Wainwright:

Bounds was a limited decision. At the time it was decided, Bounds was the *1472 culmination of a series of cases holding that imprisonment should not deprive persons of access to courts____

All of these decisions simply removed barriers to court access that imprisonment or indigency erected. They in effect tended to place prisoners in the same position as nonprisoners and indigent prisoners in the same position as nonindigent prisoners. Having held that inmates can represent themselves, if able to do so, and can help other inmates who are not so able, it was but a small step to hold that such able inmates, who presumably would have access to libraries but for imprisonment, must be given access to libraries in prison, or access to people who have access to libraries.

Id., 775 F.2d at 1436 .

The Supreme Court decision in Bounds, then, may be seen as an equalizer. It requires that access be given where none was available. This does not mean, necessarily, that a prisoner with ample financial resources to retain a lawyer has insufficient access to the courts unless he or she also has access to a law library. The state may not yet have to provide everyone sued or indicted with a full set of law books in case he or she might wish to proceed pro se. 1 The simple fact is that the Bounds court did not address the indigency issue, and neither should we, until we are presented with a case which contains the necessary factual predicate for overruling Wilson.

Second, I object to the majority’s opinion because it cavalierly expands the types of legal problems for which access to court system must be available. In Bounds, and every prior Supreme Court case regarding court access, the court only struck down those barriers which kept indigent prisoners from filing habeas corpus petitions, suits challenging the conditions of their confinement, or civil rights claims. 2 In the Bounds opinion itself, the Supreme Court noted that the right to access cases focus mainly on constitutional and civil rights claims. The court stated:

[I]n this case, we are concerned in large part with original actions seeking new trials, release from confinement, or vindication of fundamental civil rights. Rather than presenting claims that have been passed on by two courts, they frequently raise heretofore unlitigated issues. As this court has “constantly emphasized,” habeas corpus and civil rights actions are of “fundamental importance ... in our constitutional scheme” because they directly protect our most valued rights, (citations omitted).

Bounds, 430 U.S. at 827, 97 S.Ct. at 1498.

The former Fifth Circuit was never asked to apply Bounds outside this narrow *1473 range of cases. 3 In Cruz v. Hauck, 627 F.2d 710, 721 (5th Cir.1982), the former Fifth Circuit cited Bounds for the proposition that all inmates must have access to the courts for the filing of “federal habeas corpus or state or federal civil rights actions.” (citing Bounds at n. 17). In Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir.1981), this court similarly noted:

“prisoners have a constitutional right to ‘adequate, effective and meaningful’ access to the courts. See Bounds v. Smith, 430 U.S. 817, 822 [ 97 S.Ct. 1491, 1495 , 52 L.Ed.2d 72 ] (1977) [additional citations omitted]. This right is well established both in habeas corpus actions ... and in civil rights cases____” [Additional citations omitted].

Id. 661 F.2d at 1212 . In another recent case, we noted in dicta that many procedural steps have been taken to ensure access to the courts for “the benefit of the prisoner who in a custodial setting has been deprived of a constitutional right.” Hawthorne v. Wells, 761 F.2d 1514, 1516 (11th Cir.1985). Indeed, the new Fifth Circuit, in discussing the Bounds decision, explained:

In Bounds the court held that prisoners have a constitutional right of adequate, effective and meaningful access to the courts____ Apparently, the right is not extended to all legal filings, but applies only to presentation of constitutional claims, such as civil rights complaints and state and federal habeas petitions. Id. [Bounds] at 825, 827-28 and n. 17 [ 97 S.Ct. at 1496 , 1497-98 and n. 17].

Morrow v. Harwell, 768 F.2d 619 (5th Cir. 1985). 4 To apply Bounds outside this context is a bold extension of the principles expounded by the Supreme Court in its right to access decisions.

As the majority rightly notes, the New Fifth Circuit recently dismissed Morrow’s interpretation of Bounds as “obiter dicta,” and held that “although Bounds did not discuss civil suits,” the Fifth Circuit would henceforth apply Bounds to prisoners involved in civil cases unrelated to their confinement. Jackson v. Procunier, 789 F.2d 307 (5th Cir.1986). Finding this an admirable step, today the majority adopts the holding of Procunier for the Eleventh Circuit. This goes well beyond what is necessary to decide this case.

Some extension of Bounds is necessary in order to support the district court’s judgment regarding Mr. Straub’s right to access to the courts, for his case falls outside the usual Bounds context. We are not dealing with a prisoner who wants to draft a civil rights complaint or a habeas petition. Instead, we are dealing with an indigent pretrial detainee who was faced with defending himself in a civil forfeiture action brought by the state. However, we may extend Bounds to cover Mr. Straub’s situation, without adopting the holding of Pro-cunier, by limiting our holding to the facts presented by Mr. Straub’s case.

This limited extension of Bounds is a smaller step, and is fully justified by the facts of this case and prior precedent. A *1474 defendant in a civil forfeiture proceeding and a habeas corpus petitioner (or civil rights complainant challenging the conditions of confinement) both have the state as their adversary. Both must have meaningful access to the court system if they are to protect their interests — liberty or property — from continued harm. The Supreme Court has already held that the exclusionary rule, which normally only relates to criminal matters, must apply in civil forfeiture proceedings. Plymouth Sedan v. Pennsylvania, 380 U.S. 693 , 85 S.Ct. 1246 , 14 L.Ed.2d 170 (1965). This extra protection was considered necessary because of the quasi-criminal nature of such proceedings. Prisoners who file post-conviction claims for relief are also challenging criminal proceedings. Thus, Mr. Straub’s case has much in common with the type of constitutional and civil rights cases that the Supreme Court was concerned with in Bounds , and application of the principles espoused therein to Mr. Straub is justified. I do not wish to apply Bounds to every conceivable legal problem, whether the inmate is proceeding as a plaintiff or a defendant; I see no limiting factor in the majority opinion.

Of course, in a certain sense, Mr. Straub was guaranteed “access” to court because he was a defendant. In fact, he was being haled into court whether he wanted to be there or not. To this extent his predicament was analytically distinct from that of pro se plaintiffs, who are the types of litigants dealt with in the Bounds line of cases. Yet, as expressed above, Mr. Straub was faced with the same adversary. In this type of case, “meaningful access” must mean the ability to prepare oneself when one cannot afford counsel. Requiring an inmate to obtain a court order before being allowed to use a library, even where he must use a public library, is an impermissible restriction on that right. To the extent the majority so holds, I decline to dissent: but we ought not go further beyond Bounds .

I do not intend that my concurrence be read as a prediction of how I would decide the issues discussed above, were they appropriately presented in a case with the necessary factual predicate. I write merely to explain how the majority opinion goes far beyond Bounds in two distinct respects, in a situation where we are not called upon to address these issues. The second part of the majority opinion can easily be read to give every prisoner the right to access to a law library for every perceived legal problem, whether or not he can afford legal counsel. 5 In this I cannot concur.

. Some restrictions on access to the court system are impermissible even though the affected prisoner already has an attorney. For example, in Procunier v. Martinez, 416 U.S. 396 , 94 S.Ct. 1800 , 40 L.Ed.2d 224 (1974), the Supreme Court struck down a California regulation barring law students and paralegals, who were employed by the inmates' attorneys, from visiting the prisoners. A regulation inhibiting private legal counsel from effectively assisting prisoners carries very little justification. However, invalidating such an unjustified restriction is a far cry from requiring that the state provide all inmates with a library in all instances.

. In Ex parte Hull, 312 U.S. 546, 549 , 61 S.Ct. 640, 641 , 85 L.Ed. 1034 (1941), the court struck down a regulation prohibiting the filing of habe-as corpus petitions until the parole boards "legal investigator’’ had determined that they were “properly drawn.” In Griffin v. Illinois, 351 U.S. 12, 16-20 , 76 S.Ct. 585, 589-91 , 100 L.Ed. 891 (1956), the court held that trial records must be provided to inmates unable to pay for them. Burns v. Ohio, 360 U.S. 252, 257-58 , 79 S.Ct. 1164, 1168 , 3 L.Ed.2d 1209 (1959), held that indigent prisoners must be permitted to file appeals in habeas corpus petitions without paying docket fees. Johnson v. Avery, 393 U.S. 483, 490 , 89 S.Ct. 747, 751 , 21 L.Ed.2d 718 (1969), invalidated prison regulations which prohibited inmates from assisting one another with habeas corpus petitions. In Younger v. Gilmore, the Supreme Court affirmed a three-judge district court opinion invalidating California prison regulation which restricted prisoners’ access to legal books. However, this case also arose in the context of allowing inmates to draft habeas petitions and civil rights claims. Gilmore v. Lynch, 319 F.Supp. 105, 110 (N.D.Cal.1970), aff'd. sub nom., Younger v. Gilmore, 404 U.S. 15 , 92 S.Ct. 250 , 30 L.Ed.2d 142 (1971) (per curiam). In Wolff v. McDonnell, 418 U.S. 539, 578-80 , 94 S.Ct. 2963, 2985-86 , 41 L.Ed.2d 935 (1974), the Supreme Court extended Johnson v. Avery to civil rights actions, holding that prisoners must be allowed to assist each other in drafting civil rights complaints, as well as habeas petitions.

. The former Fifth Circuit did address the issue in a few pre-Bounds decisions. In one, Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir.1971), we held that "every prisoner has a constitutional right of access to the courts to present any complaint that he might have concerning his confinement.” The court did not attempt to define the parameters of meaningful access. In another decision, handed down one week before Bounds , we concluded that prisoners must be allowed to render each other assistance in legal matters "including but not limited to divorce, and small civil claims.” Corpus v. Estelle, 551 F.2d 68, 70 (1977). Although Corpus did apply the "meaningful access” concept to the civil arena, neither of these cases addressed the extent to which the state must finance inmates’ "meaningful access" to the courts.

. See also Hooten v. Jenne, 786 F.2d 692 (5th Cir.1986) (applies Bounds in civil rights context); and Mann v. Smith, 796 F.2d 79 (5th Cir.1986) (applies Bounds to prisoner’s civil rights claim). The panel in Mann aptly described the nature of the beast when it stated:

As we pointed out in Morrow , the principles stated in Bounds "suffer for lack of internal definition and prove far easier to state than to apply,” perhaps because they have no clear textual footing in the Constitution. 768 F.2d at 623 . Bounds is vague about exactly what kinds of claims by inmates trigger the “right to access" to the courts, how long a person must be detained before the right is triggered, and what level of legal assistance is required to protect the right.

Id. 796 F.2d at 84 .

. As we noted in Corpus v. Estelle, 551 F.2d 68 (5th Cir.1977), programs which provide meaningful legal assistance to inmates beyond that which is required by law are to be commended. I object only to the notion that states are required to finance a legal library capable of giving every prisoner "meaningful access to court” for every perceived legal problem, whether or not a given prisoner can afford an attorney.