Apolinar Navarette, Jr., AKA Paul Medel Navarette v. Jiro J. Enomoto

HILL, District Judge

(concurring in part and dissenting in part).

I concur in the majority opinion except as it relates to the Fourth and Fifth Claims. I would affirm the trial court’s dismissal of those causes of action for failure to state a federal claim. I cannot agree either with the characterization of those claims as contained in the majority opinion or with the statements of law made by the majority concerning them. Since the two causes of action allege the same acts in identical language, both will be hereinafter referred to as “the claim.” 1

The majority opinion asserts that the substance of the claim is that Navarette was removed as prison librarian, and that the Stanford law student visitation program in which he participated was terminated, “solely to punish or hamper his legal activities.” I submit that this is not a correct statement of the substance of the claim. I quote in full the operative paragraphs of the complaint in the footnote. 2

*283 The claim begins by alleging that plaintiff held the position of prison law librarian for three months during the fall of 1971. It says that the position was advantageous to him because the increased access to library facilities enabled him to “pursue his own legal self-education” and, in consequence thereof, to prepare writs and pleadings in 12 different cases for himself and others. Late in 1971, the complaint says, plaintiffs position was “abruptly” taken from him. No separate statement of the defendant’s alleged intent or purpose in taking the librarian position away from the plaintiff is made.

The claim then goes on to describe the Stanford law student visitation program and its termination. This act is obviously not related in time to the removal of plaintiff as law librarian. The complaint says that the student visitation program commenced in February 1972 and was terminated in fall of that year. Plaintiff says that he benefitted from the program because the advice and assistance he received from the students “had begun significantly to educate” him “and thus to facilitate greatly the large number of legal actions” which he had been seeking to bring for himself and others. The termination of the program as alleged was obviously a total termination of it for the entire prison; no other fair reading of the complaint is possible. Again, the claim contains no separate statement of defendants’ alleged intent or purpose in terminating the program. Its termination, said plaintiff, “thwarted” his efforts “to acquire an adequate fund of legal knowledge in respect to the legal remedies available to himself and others.” (Emphasis supplied). Because the termination impeded his self-education, plaintiff says he was “prevented” from pursuing “in adequate and timely manner” available legal remedies on behalf of himself and others.

In characterizing the intent or purpose of defendants’ acts, paragraph V sweeps both apparently unrelated acts together and charges that they were undertaken for the purpose of “thwarting and preventing” plaintiff’s acquisition of “knowledge of available remedies . . . .”

What plaintiff has alleged, at most, is that he was discontinued as prison librarian, and the student visitation program was discontinued in the institution, because plaintiff was becoming such a good lawyer and for the purpose of preventing him from becoming a better one.

The majority opinion reads the complaint as making a claim of interference with plaintiff’s right of access to the courts. I do not believe it can be fairly so read. In *284 paragraph VII, plaintiff describes the constitutional rights of which he has been deprived by the acts complained of. He includes free speech and due process. But he makes no claim whatever of denial of access to the courts. 3

The right of access to the courts has been defined by this court as follows:

“. . . access to the court means the opportunity to prepare, serve and file whatever pleadings or other documents are necessary or appropriate in order to commence or prosecute court proceedings affecting one’s personal liberty, or to assert and sustain a defense therein, and to send and receive communications to and from judges, courts and lawyers concerning such matters.” Hatfield v. Baiileaux, 290 F.2d 632, 637 (9th Cir.) cert. den. sub nom. Bailleaux v. Hatfield, 368 U.S. 862 , 82 S.Ct. 105 , 7 L.Ed.2d 59 (1961).

The cases establish that the right of access to the courts includes more than the right to prepare, file and prosecute legal actions.

It has also been said that the right of access to the courts “. . . encompasses all the means a defendant or petitioner might require to get a fair hearing from the judiciary on all charges brought against him or grievances alleged by him.” Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970) [3-judge court], aff’d sub nom. Younger v. Gilmore, 404 U.S. 15 , 92 S.Ct. 250 , 30 L.Ed.2d 142 (1971).

Among the other related rights which have been held to be necessarily involved in the right of access to the courts are: the right to seek and receive the assistance of lawyers (Procunier v. Martinez, 416 U.S. 396 , 94 S.Ct. 1800 , 40 L.Ed.2d 224 (1974)), the right to the assistance of knowledgeable inmates (Johnson v. Avery, 393 U.S. 483 , 89 S.Ct. 747 , 21 L.Ed.2d 718 (1969)), and the right of access to a reasonably good set of lawbooks (Gilmore v. Lynch, supra). Each of those corollary rights made a part of the general right of access is necessarily and directly related to the prosecution of legal actions. The majority opinion here seems to extend the right of access to the courts to the alleged right to a better legal education, the alleged right to continue as prison law librarian and the alleged right to continuation of a law student visitor program. I cannot agree that any of these rights are so necessarily and directly related to the general right of access to the courts that they should be made a part thereof. As to the alleged right to become a better lawyer, to pursue a legal education, this court has specifically said in Hatfield v. Bailleaux, supra,

“Inmates have the constitutional right to waive counsel and act as their own lawyers but this does not mean that a non-lawyer must be given the opportunity to acquire a legal education.” 290 F.2d at 641 .

The statement in the majority opinion that “the termination or denial of prison privileges because of a prisoner’s legal activities is an impermissible interference with his or her constitutional right of access to the courts” is unfortunate in two separate respects. First, it equates the indefinite concept of “legal activities” with the right of access to the courts. The term “legal activities” could encompass legal studies unrelated to any specific case or it could encompass the filing and prosecution of an action or it could encompass various activities in between. The term is much too vague and too broad. As stated, I would define access to the courts in the *285 language which this court has previously used in Hatfield v. Bailleaux, quoted supra. Secondly, it extends the right of access to the courts to activities which are not reasonably related thereto, as aforesaid.

The remainder of my dissent is directed to the following sentence in the majority opinion:

“The termination or denial of prison privileges because of a prisoner’s legal activities is an impermissible interference with his or her constitutional right of access to the courts.”

I believe that to be much too broad a statement and one which is not supported by the cases cited. Hooks v. Kelley, 463 F.2d 1210 (5th Cir. 1972), is a holding by the Fifth Circuit court that a complaint states a § 1983 claim which charges that the petitioner had been transferred from minimum security to medium security status only because of his persistent use of the courts to attack his conviction and to attack prison conditions. This case involves no termination or denial of a privilege. It involves an attempt to punish or discourage access to the courts by imposing more onerous conditions of incarceration.

Christman v. Skinner, 468 F.2d 723 (2nd Cir. 1972), is a holding by the Second Circuit that a § 1983 claim is sufficient which charged that plaintiff was prohibited from associating with fellow inmates and was denied gym facilities on an equal basis with other inmates because of, and in retaliation for, his commencement of court litigation against prison officials. This case does involve a privilege but involves the discriminatory denial thereof because the prisoner instituted court law suits. A case much like Christman is Andrade v. Hauck, 452 F.2d 1071 (5th Cir. 1971). It holds that a § 1983 complaint is sufficient which charges that a prisoner was deprived of commissary privileges as punishment for corresponding with the courts. Again, a privilege generally available to all inmates was denied or terminated in a discriminatory manner as punishment for undertaking court actions.

I believe that a more precise statement of the governing rule is that redress is affordable under § 1983 for the discriminatory termination or denial of prison privileges generally available to all inmates, undertaken because of the prisoner’s exercise of his right of access to the courts. This requirement of discriminatory action is specifically recognized in two cases dealing with prisoners’ freedom of religion. Sostre v. McGinnis, 442 F.2d 178 , 189 (2nd Cir. 1971), cert. den. sub nom. Sostre v. Oswald, 404 U.S. 1049 , 92 S.Ct. 719 , 30 L.Ed.2d 740 (1971), 405 U.S. 978 , 92 S.Ct. 1190 , 31 L.Ed.2d 254 (1972); Cooper v. Pate, 378 U.S. 546 , 84 S.Ct. 1733 , 12 L.Ed.2d 1030 (1964), and, in my view, should also be applied to the right of access.

If 1 have correctly stated the rule of law, the instant case does not fall within it because the face of the complaint shows no discriminatory denial of privileges. No cause of action is stated even if it be assumed that the acts charged were done solely to get at the plaintiff because he was filing so many cases. But, so to read the complaint would be a forced and unreal reading of it.

In the instant case, the student visitation program was cancelled for the entire prison. There was no discrimination against this particular plaintiff involved. It must be conceded that the prison authorities had the discretion to initiate the program and retained the discretion to terminate it at will. In my view, when the non-discriminatory termination of a prison wide privilege is alleged, it does not support a complaint under § 1983.

As to plaintiff’s position as prison librarian, it would again have to be conceded that we are again dealing with a prison privilege. Neither the plaintiff nor any other prisoner has a constitutional right either to be selected as prison librarian, or to remain in that position once selected. Only one prisoner at a time may be the law librarian. Surely the prison authorities retain the right to rotate the position among inmates — they may even have the duty to do so. They would also appear to have the right to discontinue the position entirely. If a given prisoner is not selected for the *286 position, or once given the job is replaced in it by another prisoner, he is not thereby denied a privilege generally available to others. Thus, I would hold that the instant complaint concerning plaintiff’s removal from the position does not state a cause of action under § 1983.

I would not require prison authorities to undergo the trial of a court action for the termination of either privilege, first, because neither action is sufficiently related to the right of access to the courts, and, even if it is, neither act involves the discriminatory denial of a prison privilege generally available to other inmates.

. The majority treat the Fourth and Fifth Causes of Action as involving the same legal questions and I agree that they should be so treated. Both claims allege exactly the same actions in identical language except that the Fourth Claim characterizes the actions as having been “deliberately perpetrated . . . in a knowing disregard of plaintiff’s constitutional rights . . ” and in the Fifth Claim as being undertaken “in bad faith disregard of plaintiff’s constitutional rights . . . [defendants’ lacking] probable cause to believe that plaintiff’s legal activities thereby interfered with were unprotected by the U. S. Constitution.

. “II

For approximately three months during the fall of 1971, plaintiff held the position of prison law librarian at Soledad, during which time his heightened access to library facilities enabled plaintiff, in addition to fully performing his duties as librarian, to pursue his own legal self-education, and as a consequence, to prepare semi-adequate writs and pleadings in ap *283 proximately twelve different cases, on behalf of himself and others.

“Ill

Starting on or about February, 1972, a small number of Stanford law students, all of whom were acredited for supervised practice, were permitted by the Department of Corrections to visit inmates at Soledad for the purpose of discussing the legal needs and problems of such inmates. Said law students at all times conducted themselves reasonably in connection with such interviews and in no respect abused the privileges under said program. The legal advice and assistance which Plaintiff received as a result of such law students interviews had begun significantly to educate plaintiff, and, as a consequence thereof, to facilitate greatly the large number of legal actions, including the within action, which Plaintiff had been seeking to bring in order to obtain judicial relief both for himself and others.

“IV

Late in 1971, defendna ts STONE and MORRIS, both individually and in concert together, abruptly changed plaintiffs job position, and as a proximate result thereof, plaintiff’s access to legal books and materials in said library was substantially curtailed. Moreover, in fall, 1972, said defendants, both individually and in concert together, also terminated the visitation program described in the immediately preceding paragraph, and, as a proximate result thereof, thereby thwarted plaintiff’s efforts to acquire an adequate fund of legal knowledge in respect to the legal remedies available to himself and others. In direct consequence of both actions by said defendants as described in the within paragraph, plaintiff was prevented from pursuing in adequate and timely manner, available legal remedies on behalf of himself and others.

“V

Defendants STONE and MORRIS deliberately perpetrated the actions hereinabove described for the purpose of thwarting and impeding plaintiff’s acquisition of knowledge of available legal remedies, and did so in knowing disregard of plaintiff’s constitutional rights.”

. It should be borne in mind that this plaintiff is no ordinary prisoner pro per litigant. His pleading is both sophisticated and polished. His choice of language would do credit to a top-level private practitioner specializing in civil rights litigation. The pleading indicates a more than adequate knowledge of constitutional law, particularly the Civil Rights Act, and an awareness of the essential elements of different theories of law which can be used, in different counts, to attack the same actions. Plaintiff’s claim in paragraph II of having been working on 12 different cases during the period in question seems credible indeed. So this plaintiff is not entitled to the special advantages afforded to semi-literate unknowledgeable prisoners in scanning their pleadings although, in my view, the result would be the same if he were afforded that advantage.