Petition — Procunier v. Navarette

Supreme Court, U. S.

FILED

SEP 28 1976

ICHAEL RODAK, JR.,CLERK

oe

In the Supreme Con

OF THE

— Anited States

Quine Term, 1976

No. '%6 - 446

Raymonp K. Procunier, et al..

Petitioners,

VS.

APOLINAR NAVARETTP, JR.

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Evet.e J. YouNGER,

Attorney General of the State of California

Jack R. WINKLER,

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O'BRIEN,

Assistant Attorney General

W. Eric Coins,

Deputy Attc sey General

SANFORD SvErTcoy,

Deputy Attorney Genera!

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-3653

Attorneys for Petitioners.

PERNAU - WALSH PRINTING CO.- 562 MISSION STREET - SAN FRANCISCO, CA 94105

Subject Index

Page

Sy BP oo diccccccedccccccccducspascsccscosevcves 1

oe ten idceedceneetednedeeseseteeeeeesssecs 2

GINS PUUMNMINE occ cccccccccsccccccecccccccesccecese 2

ee i ccc ceccdetesescdossnecococe 3

Reasons for granting the writ ...........0cceceeeeeeeeees 5

Argument ......... webenan Jadenaald babésiebsdaeedhoeens 9

I

Negligence is not a proper basis for relief under the Civil

BE BD i ncn wicdcccdendsctcccocescteseeessencséoces 9

A. The historical genesis of the Civil Rights Act does not

posit liability for negligence .............00-eeeees 10

B. The judicial decisions have not posited liability for

MD GIT ov ccccccccconcccccsecccccceveceseces 12

C. The cases cited by the court do not support its ruling 15

i el Loos icc engeee bOhbOCbE SEEKS HECOD Re ESS 19

Table of Authorities Cited

Cases Pages

Bailleaux v. Hatfield, 368 U.S. 862 (1961) .............. 8

Beishir v. Schanzmeyer, 315 F.Supp. 519 (W.D.Mo. 1969) 13

Belden v. Mandel, 385 F.Supp. 761 (D.Md. 1974) ........ 14

Carter v. Carlson, 447 F.2d 358 (D.C. Cir. 1971) ........ 17,18

Chureh v. Hegstrom, 416 F.2d 449 (2nd Cir. 1969) ...... 6, 13

Davis v. Quarter Sessions Ct., 361 F.Supp. 720 (E.D.Pa.

SEED .-adunbede wes ob 6 ecesed secs ote tectideedenbieuae 13, 15

District of Columbia v. Carter, 409 U.S. 418 (1973) ...... 12, 18

Estelle v. Gamble, No. 75-929 [516 F.2d 937 (5th Cir.

EEE: | Ubinkie Khe 06k sebieeiileé sed anadd dds dts needa 7

Fear v. Pennsylvania, 413 F.2d 88 (3rd Cir. 1969), cert.

IE Se a GP CUE nb 66 cee cccdcccccceceseces 13

Goode v. Hartman, 388 F.Supp. 541 (E.D.Va. 1975) ...... 13

Hatfield v. Bailleaux 290 F.2d 632 (9th Cir.) cert. denied

MIL cn. ciutiavens +éednes Mande ckeenuminewatebeacs 7

Hopkins v. County of Cook, 305 F.Supp. 1011 (N.D.Il.

SD dadkansudundndusel cudeeksuedl Gis dedccnseeaenss 14

Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970) ....5,14,16

Jenkins v. Meyers, 338 F.Supp. 383 (N.D.ILLE.D. 1972) af-

firmed 481 F.2d 1406 (7th Cir. 1973) .......... 6, 12, 13, 15

Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973) ........ 14

Kent v. Prasse, 265 F.Supp. 673 (W.D.Pa. 1967), aff’d, 385

i ev esaewudaade 6, 14

McCray v. State of Maryland, 456 F.2d 1 (4th Cir. 1972) 15

McKinney v. Debord, 507 F.2d 501 (9th Cir. 1974) ....... g

Martinez v. Procunier, 354 F.Supp. 1092 (N.D.Cal. 1973) 8

Monroe v. Pape, 365 U.S. 167 (1961) .............. 6, 10, 11, 12

Montayne v. Haymes, 44 U.S. Law Week 5051 (1976) .... 7,8

Navarette v. Buwalda, et al., No. C-72-1259 SW .......... 3

Page v. Sharpe, 487 F.2d 567 (1st Cir. 1973) ............ 13

Paul v. Davis, 44 U.S. Law Week 4337 (1976) ........ 6, 15,18

TABLE oF AUTHORITIES CITED lii

Pages

Pierson v. Ray, 386 U.S. 547 (1967) ........ eee eeeees 9,10, 11

Procunier v. Martinez, 416 U.S. 396 (1974) .............. 2,8,9

Rizzo v. Goode, 44 U.S. Law Week 4095 (1976) .......... 9,18

Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971), ‘ert.

denied, 404 U.S. 866 (1971), modified, 456 F.2d 834

Ie Ae i a Ger PSP aap 14, 16, 17

Rundle v. Madigan, 356 F.Supp. 1048 (N.D.Cal. 1972) .... 14

Schneckloth v. Bustamonte, 413 U.S. 218 (1973) ........ 9, 18

United States ex rel. Gittlemacker v. County of Philadel-

phia, 413 F.2d 84 (3rd Cir. 1969), cert. denied, 396 U.S.

ie PP rrrrrrrrrrerrrrrri rire 13, 14

United States ex rel. Lawrence v. Woods, 432 F.2d 1072

(7th Cir. 1970) cert. denied, 402 U.S. 983 (1971) ...... 18

Weathers v. Ebert, 505 F.2d 514 (4th Cir. 1974) ........ 13

Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969), cert. denied,

GEE TE GER CE ch deevcedcccccccnscvcveccccceecs 16

Wilbron v. Hutto, 509 F.2d 621 (Sth Cir. 1975) ......... 13

Williams v. Field, 416 F.2d 483 (9th Cir. 1969) ........ 15

Williams v. Vincent, 508 F.2d 541 (2nd Cir. 1974) ..... 5, 14

Wolff v. MeDonnel!, 418 U.S. 539 (1974) .............55. 18

Codes

28 U.S.C.:

ay TEED cccccceccccccerscccccneccesccesccsces 2

a ad ccideeheetosnseeeseeehoues 2

MED ou iwedceecddececeewe Sr ee 2

i PD nods sucepovseetehenatesesetesesedes 2

42 U.S.C.:

OS eer 1, 2, 4, 6, 7, 9, 12, 13, 16, 17, 18

SE MEE «ccc cavesedessedbodvccetééeceuwecesess 11, 22

Constitutions

United States Constitution, First Amendment ........... a: a

United States Constitution, Eighth Amendment ........... 11

iv TaBLeE OF AUTHORITIES CITED

Texts P

Cong. Gl ‘

ng. Globe, 42d Cong., Ist Sess. 317 (1871) ............ 11

Cong. Globe 42d Cong., Ist Sess. 805 (1871) ............ 11

House Report 320, 42d Cong., Ist Sess. (1871) .......... 10

me Acts

Civil Rights Act:

Se Seah. DR BUN © oo ve vaccsecavdedesesieleeee 11

Be Geek. Th, GG © o.w'cs c'n0ckdecencesbiedinee 11

Other Authorities

Nahmod, Section 1983 and the “Background” of Tort Lia-

weep, GP eB Ead, § CHD casccccsececceeuacsaaua 10

Shapo, Constitutional Tort: Monroe v. Pape and the Fron-

tiers Beyond, 60 N.W.U.L.Rev. 277 (1965) ............ 10

Iu the Supreme Court

OF THE

Anited States

Ocroper TERM, 1976

No.

RayMonp K. Procunren, et al.,

Petitioners,

vs.

APOLINAR NAVARETTE, J R.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

The petitioners, Raymond K. Procunier, et al., re-

spectfully pray that a writ of certiorari issue to

review the judgment and majority opinion of the

United States Court of Appeals for the Ninth Cireuit

entered in this proceeding on February 9, 1976.

OPINION BELOW

The opinion of the Court of Appeals, holding prison

officials to be liable in money damages under the Civil

Rights Act (42 U.S.C. $1983) for mere negligent con-

2

duct, is reported at 536 F.2d 277 and is attached

hereto as Appendix A.

JURISDICTION

The Court of Appeals order denying the petition

. for rehearing and rejecting the suggestion for rehear-

ing en banc, attached hereto as Appendix B, was filed

on July 29, 1976. This petition is timely filed within

90 days of that date (28 U.S.C. §2101(e)).

This Court’s jurisdiction is invoked under Title 28,

United States Code section 1254(1). The district

court’s jurisdiction was invoked under Title 28,

United States Code sections 1331 and 1343.

QUESTIONS PRESENTED

1. Whether negligent failure te mail certain of a

prisoner’s outgoing letters states a cause of action

under section 1983?

2. Whether removal of a prisoner as a prison law

librarian and termination of a law student-inmate

visitation program in which he participated states a

cause of action under the Civil Rights Act for either

knowingly or negligently interfering with the prison-

er’s right of access to the courts?

3. Whether deliberate refusal to mail certain of a

prisoner’s correspondence in 1971-1972 prior to Pro-

cunter v. Martinez, 416 U.S. 396 (1974), and refusal

to send certain correspondence by registered mail

3

states a cause of action for violation of his J irst

Amendment right to free expression ?

STATEMENT OF THE CASE

The litigation below is a pleading nightmare. The

second-amended complaint to which the order below is

addressed is actually the fourth complaint filed in

this action.

On August 14, 1972, plaintiff Navarette, pro se,

filed the original complaint herein, which was never

served on the defendants. This initial action was de-

nominated Navarétte v. Buwalda, et al., No. C-72-1259

SW, and was dismissed without prejudice on April

27, 1973.

The second pro se complaint—actually the first

amended complaint—was filed on October 30, 1972,

and was given a different case number, C-72-1954 SW

(CT 1-11). That complaint was dismissed without

prejudice by order filed February 9, 1973 (CT 192).

With the aid of counsel, a third complaint was filed

in open court on April 27, 1973 (CT 193). Navarette

had dropped one defendant (7.e., May Buwalda) and

added several others (i.e., Procunier and Does I

. through IV). In response to defendants’ motion to

dismiss, filed May 25, 1973 (CT 35) the third com-

plaint was withdrawn on July 27, 1973, upon stipula-

tion of counsel that plaintiff file yet another amended

complaint in lieu thereof (CT 72-74).

4

The fourth complaint—the second-amended com-

plaint—was filed January 4, 1974 (CT 90-105). It al-

leges nine causes of action solely for damages under

Title 42, United States Code section 1983.' This is the

complaint that was acted upon by the district court

and the Court of Appeals and which is before this

Court on the instant petition. Defendants on February

21, 1974, filed their motions for summary judgment or

dismissal (CT 106-162). On May 3, 1974, the district

court filed its order granting summary judgment in

favor of defendants as to causes of action one, two

and three, and dismissing causes of action four

through nine, inclusive, for failure to state a federal

claim (CT 187). The judgment was filed on June 7,

1974 (CT 189).

Notice of Appeal was filed on June 4, 1974 (CT

188).

1In claims one and two, Navarette alleged in substance that all

defendants, in 1971-1972, deliberately refused to mail certain of

his letters and refused to send certain other letters in violation of

the First Amendment. Claim three alleges that the same actions

were done negligently.

Navarette alleged that some 13 items of his mail were not de

livered during 1971-1972 (CT 92-94). Prison mail records which

were not disputed disclosed that more than 150 items of his

correspondence were mailed to attorneys, friends, courts, leg-

ae and other public officials during the same period (CT

).

In elaims four and five, Navarette alleges in substance that he

was removed as a prison law librarian and that a law student-

inmate visitation program in which he participated was deliberately

terminated by defendants Procunier, Stone, and Morris, solely to

hamper his legal activities. Claim six alleges that the same action

was taken in negligent disregard of his legal activities.

In claims seven, eight, and nine, Navarette realleges the sub-

stance of counts one through six against defendants Procunier,

Stone, and Morris, upon a theory of respondeat superior, not per-

sonal liability.

5

The Court of Appeals filed an opinion on February

9, 1976, reversing the order granting summary judg-

ment as to claims one through three, reversing the

order dismissing claims four through six and affirm-

ing the dismissal of claims seven, eight and nine. Also

affirmed was the dismissal of all nine claims for fail-

ing sufficiently to allege a conspiracy. One judge dis-

sented from the dismissal of counts four and five.

On February 23, 1976, defendants filed a petition

for rehearing and suggestion for rehearing en bane.

On July 29, 1976, the Court of Appeals filed its, order

denying the petition for rehearing and rehearing en

banc. One member of the panel voted to grant panel

rehearing and recommended that en banc rehearing

be granted.

The mandate of the Court of Appeals has been

stayed pending certiorari.

REASONS FOR GRANTING THE WRIT

1. California prison officials seek certiorari to de-

termine whether they may be held liable for money

damages for mere negligent conduct in the course of

their official duties.

Authorities in the circuit courts appear divided.

A number require an allegation of wrongful intent,

bad faith or oppressive motive. E.g., Williams v. Vin-

cent, 508 F.2d 541, 546 (2nd Cir. 1974). Others re-

quire only an allegation of recklessness or gross or

culpable negligence. F.g., Jenkins v. Averett, 424 F.2d

1228, 1231-1232 (4th Cir. 1970). Simple negligence

6

has not sufficed in the absence of some allegation of

knowing or conscious disregard of constitutional

rights. The decision of the Court of Appeals herein

is the first case to hold that simple negligence in the

handling of outgoing prisoner mail states a cause of

action under section 1983. The instant decision is in

direct conflict with a decision of the Seventh Circuit

upholding a district court ruling that simple negli-

gence in the handling of mail does not state a 1983

claim. We refer to Jenkins v. Meyers, 338 F.Supp.

383, 389-390 (N.D.IL.E.D. 1972) affirmed 481 F.2d

1406 (7th Cir. 1973); also see, Church v. Hegstrom,

416 F.2d 449, 450-451 (2nd Cir. 1969) ; Kent v. Prasse,

385 F.2d 406 (3rd Cir. 1967).

More significantly, subsequent to the Court of Ap-

peals’ decision herein, a majority of this Court rather

clearly indicated that negligence did not state a cause

of action under the Civil Rights Act. Paul v. Davis,

44 U.S. Law Week 4337, 4339 (1976). The majority

observed that section 1983 did not serve to make all

torts of state officials cognizable in a federal court.

Id, Indeed, even the dissenting justices in Paul v.

Davis agreed that section 1983 applied only to “an

official’s abuse of his position” (quoting Monroe v.

Pape, 365 U.S. 167, 172 (1961) ), and declined to state

whether negligence could, under any circumstances,

constitute such abuse; the gravamen of “abuse” being

intentional conduct.

Under the Court of Appeals’ decision, the burden

on the federal judiciary of having to bring to trial

all such ordinary negligence tort actions under sec-

7

tion 1983, regardless of the frivolity of the allegations,

could well be staggering. In this regard, it is noted

that this Court on February 23, 1976, granted cer-

tiorari in Estelle v. Gamble, No. 75-929, [516 F.2d

937 (5th Cir. 1975)] wherein the Court of Appeals

held that an inmate’s claim that he was given im-

proper, impliedly negligent, medical treatment for a

back injury, stated a 1983 cause of action. We urge

that the issues presented here are sufficiently similar

to that in Gamble to justify certiorari and consolida-

tion for purposes of argument and decision.

2. A 2-1 majority of the Court of Appeals held

that Navarette’s claims that his removal as a prison

law librarian and: the termination of a student visita-

tion program in which he participated stated a section

1983 cause of action for interfering with his right of

access to the courts. Subsequently, however, this Court

in substance has held that removal of a state prisoner

from his post of inmate law librarian and his transfer

to another prison was an action entirely within the

discretion of prison officials, not a matter of constitu-

tional dimension. Montayne v. Haymes, 44 U.S. Law

Week 5051 (1976). Moreover, as the dissent below

points out, the termination of these two privileges,

albeit hampering Navarette’s opportunity to improve

his legal acumen, is not sufficiently related to the right

of access to the courts and does not involve a discrim-

inatory denial of prison privileges generally available

to other prisoners. Hence, the action taken fails to

state a federal claim. Sce, Hatfield v. Bailleaux, 290

F.2d 632, 637, 641 (9th Cir.) cert. dented sub nom.

8

Bailleaux v. Hatfield, 368 U.S. 862 (1961). Certiorari

is sought to correct this failure to follow Montayne.

3. Certiorari is also sought from the ruling that

refusal in 1971-1972 to mail a prisoner’s correspon-

dence and to send it by registered mail state a federal

claim for damages under the First Amendment.

Petitioners point out that it has not found any ease,

nor does the Court of Appeals cite any case holding

that a prison inmate bas a federal constitutional right

to send his letters by registered mail.* Hence, we re-

spectfully request that certiorari be granted to make it

clear that the refusal to permit registered mailing

does not state a federal claim under the First Amend-

ment.

The alleged refusal by petitioners to mail certain

of plaintiff’s letters took place in 1971 and 1972, long

before the decisions in the Ninth Circuit holding that

prisoners had a right to correspond protected by the

First Amendment. See, Martinez v. Procunier, 354

F.Supp. 1092, 1097 (N.D.Cal. 1973) ; McKinney v. De-

Bord, 507 F.2d 501, 505 (9th Cir. 1974). Moreover,

this Court expressly declined to hold that inmates had

such a right. Procunier v. Martinez, 416 U.S. 396,

408 (1974).

It is submitted that proper federal-state relations

would require the lower federal courts to refrain from

interfering with the discretionary action of state of-

2Neither did petitioners’ mail regulations allow inmates to send

letters by registered mail, except with permission of the warden

(CT 145). Thus, anv alleged denial thereof to plaintiff by sub-

ordinate employees (CT 94:22) does not implicate the equal pro-

tection clause.

9

ficials unless such action offends federal standards

announced by the Supreme Court. See, Rizzo v.

Goode, 44 U.S. Law Week 4095 (1976) ; ef., Schneck-

loth v. Bustamonte, 412 U.S. 218, 249 (1973). A for-

tiori, where the actions complained of not only fail

to implicate a federal right declared by the Supreme

Court, but also pre-date the articulation of such a

right by the lower courts in this circuit, it is difficult

to perceive wherein a federal cause of action can be

said to have existed. A prison official “is not charged

with predicting the future course of constitutional

law.” Pierson v. Ray, 386 U.S. 547, 557 (1967).

ARGUMENT

We do not present extended argument at this time

as to our second and third reasons for the writ. The

alleged access to courts claim is persuasively chal-

lenged by the dissenting opinion below and requires

no repetition. Neither do we elect to belabor our con-

tention that Procunier v. Martinez is not retroactive.

Extended discussion below is presented as to our

first reason for granting the writ: negligence does not

state a cause of action under the Civil Rights Act.

I

NEGLIGENCE IS NOT A PROPER BASIS FOR RELIEF

UNDER THE CIVII, RIGHTS ACT

Section 1983 uses the term “deprivation” to describe

the wrongdoing which generates liability. A depriva-

tion is an act which dispossesses another of what is

10

his. In Monroe v. Pape, 365 U.S. 167 (1961), the act

of deprivation was committed by a group of Chicago

police officers who allegedly broke into the plaintiff’s

home, conducted an abusive and pervasive search and

arrested and detained an occupant without cause.

Such intentional torts as assault, battery, false im-

prisonment, invasion of privacy and inflicting of men-

tal distress are implicated, not negligence. See Nah-

mod, Section 1983 and the “Background” of Tort Lia-

bility, 50 Ind.L.J. 5 (1974); Shapo, Constitutional

Tort: Monroe v. Pape and the Frontiers Beyond, 60

N.W.U.L.Rev. 277 (1965). In Pierson v. Ray, 386

U.S. 547 (1967), the act of deprivation was the al-

leged illegal arrest and imprisonment of assembled

clergymen in Jackson, Mississippi, also intentional

conduct.

Here, Navarette merely urges in claims three and

six that prison officials negligently interfered with

his mail and negligently took away certain privileges.

The Court of Appeals holds he has therefore suffi-

ciently alleged a “negligent” violation of a constitu-

tional right. We respectfully submit that this ruling

has neither historical nor judicial support.

A. The Historical Genesis of the Civil Rights Act Does Not

Posit Liability for Negligence.

When the Civil Rights Act is viewed as a whole,

and in the context in which it was passed, it is clear

that only one specific type of negligence (which is

inapplicable herein) was considered actionable. When

the civil rights bill (H.R. 320, 42d Cong... Ist Sess.

[1871]) was introduced, it did not contain any refer-

11

ence to negligence. Cong. Globe, 42d Cong., Ist Sess.

317 (1871). With minor amendments, the house bill

was passed and sent to the Senate on April 6, 1871.

It was reported out of committee with amendments

on April 10, still without any reference to negligence.

See, id., at 567-578.

Subsequently, a joint conference committee was ap-

pointed to draft a provision suitable to both houses.

The new section drafted by this committee, which be-

came Section 6 of the Civil Rights Act of 1871 (17

Stat. 15), included for the first time a reference to

negligence; creating liability in any person who,

knowing that any of the acts forbidden under Sec-

tion 2 (the conspiracy provision, 17 Stat. 13) were

about to occur, “and having power to prevent or aid

in preventing the same, shall neglect or refuse so to

do....” Cong. Globe 42d Cong., Ist Sess. 805 (1871)

(emphasis added). This provision now appears as

Title 42, United States Code section 1986. It is clear,

then, that negligent liability was not included in the

other provisions of the Act, and that the specific in-

clusion of negligence in what is now section 1986 was

intentional and represented a new and different liabil-

ity than that otherwise created.

This conclusion is buttressed by the historical con-

text in which the Civil Rights Act arose. As observed

in Monroe v. Pape, supra, 365 U.S. 167, 172-175

(1961), the Act was largely a response to the activi-

ties of the Ku Klux Klan, and the debates in Congress

focused upon mob violence. The conduct for which

the Act was to provide a remedy was intentional con-

12

duct—of the type classified as intentional torts. With

the exception of that limited form of negligence spec-

ified in section 1986, there is nothing in the debates

which would suggest that the Act embraced anything

more than intentional torts.

B. The Judicial Decisions Have Not Posited Liability for Neg-

ligent Torts.

Monroe v. Pape, supra, 365 U.S. 167, 187 (1961),

when considering the federal civil liability ef police

officers charged with an illegal search and arrest,

stated in dictum that section 1983 should be read

“against the background of tort liability mak[ing] a

man responsible for the natural consequences of his

acts.” The section, of course, must also be read against

its own background: “Any analysis of the purposes

and scope of §1983 must take cognizance of the

events and passions of the time at which it was en-

acted.” District of Columbia v. Carter, 409 U.S. 418,

425 (1973). Section 1983 speaks expressly neither of

“intent” nor of “negligence”.

The federal courts have not incorporated negligence

concepts into the Civil Rights Act. Closest to the in-

stant case is Jenkins v. Meyers, 338 F.Supp. 383 (N.D. —

TIL.E.D. 1972), aff’d, 481 F.2d 1406 (7th Cir. 1973).

The prisoner in Jenkins sought injunctive relief and

damages against prison officials for negligently failing

to mail a trial transcript causing the prisoner to lose

a court case. The action was dismissed, the court

stating (338 F.Supp. at 389):

“{T ]here is a deprivation of a constitutional right

but the act bringing about that violation was an

unconscious one, a pure mistake, and the factual

13

as well as the legal result were unintended. Thus,

not only was there an absence of both improper

motive and specific intent—there was no motive

and no intent whatsoever since the defendant was

not cognizant that the act was taking place no

less the legal implications of that act.”

The court also stated (338 F.Supp. at 390) that a

different result would convert “every minor mistake,

especially in the milieu of the prison, into a violation

of section 1983. To hold prison officials to such a high

standard of strict liability would impose such an im-

possible burden as to render prisons totally inoper-

able.” Also see Weathers v. Ebert, 505 F.2d 514, 516-

517 (4th Cir. 1974); Davis v. Quarter Sessions Ct.,

361 F.Supp. 720, 722 (E.D.Pa. 1973); Beishir v.

Schanzmeyer, 315 F.Supp. 519, 520 (W.D.Mo. 1969).

In Church v. Hegstrom, 416 F.2d 449 (2nd Cir.

1969), the plaintiff alleged negligent denial of medi-

cal care. The Second Circuit held that “. . . § 1983

likewise does not authorize federal courts to interfere

in the ordinary medical practices or other matters

of internal discipline of state prisons” and “[m Jere

negligence in giving or failing to supply medical

attention alone will not suffice, since all rights exist-

ing under state law are not also federal rights carry-

ing a federal remedy” (416 F.2d at 450-451). See

also Page v. Sharpe, 487 F.2d 567, 569 (1st Cir.

1973) ; Goode v. Hartman, 388 F.Supp. 541, 542 (E.D.

Va. 1975); Wilbron v. Hutto, 509 F.2d 621 (8th Cir.

1975); Fear v. Pennsylvania, 413 F.2d 88, 89 (3rd

Cir. 1969), cert. denied, 396 U.S. 935 (1969) ; United

14

States ex rel, Gittlemacker v. County of Philadelphia,

413 F.2d 84, 87 (3rd Cir. 1969), cert. denied, 396 U.S.

1046 (1970); Hopkins v. County of Cook, 305 F.

Supp. 1011, 1012 (N.D.LIL. 1969) ; Kent v. Prasse, 265

F.Supp. 673 (W.D.Pa. 1967), aff'd, 385 F.2d 406 (3rd

Cir. 1967). Similarly, in Bolden v. Mandel, 385 F.

Supp. 761, 763 (D.Md. 1974), the court said: “[T]here

is no constitutional right of a prisoner to be free of

simple negligence, particularly where the injury

caused does not involve physical harm.” Also see,

Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973).

Courts have used various terminologies to describe

the acts of deprivation by the defendant which,

though not strictly intentional, will make him ac-

countable, Some courts speak of “gross and culpable

negligence.” Jenkins v. Averett, 424 F.2d 1228, 1231-

1232 (4th Cir. 1970); Rundle v. Madigan, 356 F.

Supp. 1048, 1052-1054 (N.D.Cal. 1972). Some courts

speak of “evil intent,” “recklessness” or “unreason-

able, deliberate indifference”. See, Roberts v. Wil-

liams, 456 F.2d 819, 828 (5th Cir. 1971), cert. denied,

404 U.S. 866 (1971), modified, 456 F.2d 834 (1972).

An example of the latter is an inmate suit alleging

that a guard did not protect him from an assault.

Williams v. Vineent, 508 F.2d 541 (2nd Cir. 1974).

The court stated at page 546:

“In the same way, an isolated omission to act by

a state prison guard does not support a claim

under section 1983 absent circumstances indicat-

ing an evil intent, or recklessness, or at least

deliberate indifference to the consequences of his

conduct for those under his control and depend-

15

ent upon him. [Footnote omitted.]” Also see, Wil-

liams v. Field, 416 F.2d 483 (9th Cir, 1969).

These cases do not conflict with the general propo-

sition that suits under section 1983 are not intended

to redress instances of common law negligence and

that there is no right to recovery from the inadver-

tent invasion of a constitutional right. See, Paul v.

Davis, supra, 44 U.S. Law Week at 4339. An omis-

sion does not create a constitutional deprivation over

which the court has jurisdiction, Cases where excep-

tions have been made invariably involve Eighth

Amendment claims. Navarette’s complaint does not

allege any such special circumstances for a departure

from the general rule.

C. The Cases Cited by the Court Do Not Support Its Ruling.

The Court of Appeals cites a string of cases (page

7, note 4) for the proposition that the courts of nearly

every circuit have recognized that allegations of neg-

ligence state a cause of action for damages under the

civil rights acts. These cases require some amplifica-

tion, None involves a mail dispute or facts similar

to the instant case. With one exception,’ the cases

listed involve allegations either of assault, false arrest

or other misuse of force and typically required more

than simple negligence to find a federal claim stated.

8McCray v. State of Maryland, 456 F.2d 1, 5-6 (4th Cir. 197° .

There, a claim against a court clerk for negligence in impeding

the filing of a writ was held to sufficiently allege a cause of action

for denial of access to the courts. McCray is thus in direct conflict

not only with Jenkins v. Meyers, supra [338 F.Supp. 383, aff'd,

481 F.2d 1406], but also with Davis v. Quarter Sessiwns Ct., supra

(361 F.Supp. 720]. In Davis, the court held that a court clerk's

alleged negligent failure to furnish a prisoner with a copy of his

criminal trial transeript did not state a 1983 claim.

16

For example, the Court cites Jenkins v. Averett,

424 F.2d 1228 (4th Cir. 1970), to support its ruling

that negligence states a 1983 cause of action. The

Jenkins case was an appeal from the findings of the

trial court following a trial at which the defendant,

a police officer, was found liable for assault and bat-

tery under a pendent state claim; a claim under sec-

tion 1983 was rejected. The Fourth Circuit, one judge

dissenting, found that the federal claim should have

been considered in that the trial court’s finding of

“reckless use of force” or “gross or culpable conduct”

supplied the intent necessary for federal purposes as

well (424 F.2d at 1232). The court, however, stated

(424 F.2d at 1222):

“Our concern here is with the abuse of power by

a police officer—as found by the District Judge

—and not with simple negligence on the part of

a policeman or any other official.”

The Court of Appeals also directs attention to

Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969), cert.

denied, 396 U.S. 901 (1969) and Roberts v. Williams,

supra, 456 F.2d 819 (5th Cir. 1971), cert. denied, 404

U.S. 866 (1971), modified, 456 F.2d 834 (1972). These

cases are each procedurally and factually distinct

from the instant case.

Whirl involved a former prisoner’s suit under sec-

tion 1983 and pendent state claims against the sheriff

for over-extending by nine months “the hospitality

of his hostelry and the pleasure of his euisine” (407

F.2d at 785). The claim was false imprisonment, an

intentional tort. The jury was given negligence in-

17

structions. The jury found that the sheriff was not

negligent. On appeal, the prisoner argued that he was

entitled to a directed verdict as a matter of law.

The court, ‘ter alia, found that the sheriff’s ‘‘good

faith” was not a defense to a civil rights action for

false imprisonment; that the sheriff was on construc-

tive notice of the illegal confinement after the passage

of an unreasonable period of time; that the case

should not have been submitted to the jury on the

basis of negligence since the prisoner was entitled to

a directed verdict.

In the Roberts case, supra, the plaintiff alleged

that he was shot on a prison farm by a trustee guard

and a 1983 action was brought alleging cruel and

unusual punishment and a pendent claim for negli-

gence under state tort law. The trial court found the

superintendent of the farm, Arterbury, liable under

both federal and state law. The appellate court found

that although the plaintiff alleged but did not prove

that the injury was purposely inflicted, the superin-

tendent’s “demonstrated indifference to prisoner’s

safety,” established a cruel state of mind with which

physical harm and causation provided the basis of

Eighth Amendment tort liability (456 F.2d at 838).

Roberts, however, was subsequently modified (456

F.2d at 835): ‘‘We modify our opinion so as to de

clare that the liability of the defendant, Arterbury,

rests upon Mississippi law applied under the doctrine

of pendent jurisdiction.”

The Court of Appeals also cites Carter v. Carlson,

447 F.2d 358 (D.C. Cir. 1971). Carter in dicta stated

18

that a police chief and a precinct captain may be

held liable under section 1983 if (1) the plaintiff can

prove they were negligent in the supervision and

training of the police officer who assaulted the plain-

tiff, and (2) this negligence caused plaintiff to be

deprived of a constitutional right. Carter, of course,

was reversed by the United States Supreme Court,

District of Columbia v. Carter, supra, 409 U.S. 418

(1973), which held that the District of Columbia was

not a state or territory within the meaning of 42

United States Code section 1983. In Carter, the Su-

preme Court declared: ‘‘[W]e intimate no view on

the merits of respondent’s claims insofar as they are

based on other theories of liability” (409 U.S. at

418). If negligent conduct were embraced by the Civil

Rights Act then this specific reservation would have

been unnecessary.

Finally, we would respectfully urge that proper

federal-state relations mandate that the lower federal

courts desist from imposing negligence liability on

state officials in the absence of a decision of the

United States Supreme Court clearly imposing such

liability. See, Rizzo v. Goode, supra; cf. Schneckloth

v. Bustamonte, supra; United States ex rel. Lawrence

v. Woods, 432 F.2d 1072, 1075-1076 (7th Cir. 1970)

cert, denied, 402 U.S. 983 (1971). Prison officials

must retain the ‘‘necessary discretion” to experiment

‘*without being subject to unduly crippling constitu-

tional impediments.” Wolff v. McDonnell, 418 U.S.

539, 566-567 (1974). If a lower federal court feels

compelled to announce a landmark decision in federal

19

law, it should initiate its broadcase on the ground

of a federal prison and leave the states to the super-

vision of their own courts and the United States Su-

preme Court.

Most significantly, the Court of Appeals’ decision

is squarely at loggerheads with the strong suggestion

of this Court in Paw v. Davis, supra, that negligence

does not state a cause of action under section 1983.*

CONCLUSION

For the foregoing reasons, it is respectfully re-

quested that this Court grant a writ of certiorari and

reverse the decision of the court of appeals.

Dated, September 27, 1976.

Eve Le J. YOUNGER,

Attorney General of the State of California

Jack R. WINKLER,

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O’Brien,

Assistant Attorney General

W. Eric CoLiins,

Deputy Attorney Genera!

SANFORD SVETCOV,

Deputy Attorney General

Attorneys for Petitioners.

4Under California Penal Code section 2601(¢:, state prisoners

are able to bring civil suits in state courts.

(Appendices Follow)

APPENDICES

Appendix A

United States Court of Appeals

for the Ninth Circuit

No. 74-2212

APOLINAR NAVARETTE, JR. aka Paut |

MEDEL NAVARETTE,

Plaintiff-A ppellant,

vs.

Raymonp K. Procunter, T. W. Stone, 4

P. J. Morris, B. Neat, R. Kramer,

W. L. JoHNson, and Does One through

Four,

Defendants-A ppellees. ;

Appeal from the United States District Court for

the Northern District of California

OPINION

Before: KortscH and Hursrepier, Cireuit Judges,

and Hin1,* District Judge.

KoeLscH, Circuit Judge:

Appellant Navarette, a California state prisoner,

brought this civil rights action against state prison

officials under 42 U.S.C. §§1983, 1985 ard 28 U.S.C.

§§1341, 1343; his complaint set out nine purported

*The Honorable Irving Hill, United States District Judge for

the Central District of California, sitting by designation.

ii

claims. The district court granted summary judg-

ment for appellees as to the first, second, and third

and dismissed the fourth through ninth for failure

to state a federal claim. We affirm in part and

reverse in part.

The district court erred in its grant of summary

judgment. As to claims one and two, Navarette’s alle-

gations in substance were that appellees deliberately

refused to mail certain of his letters and to send cer-

tain others by registered mail in violation of the fed-

eral constitution and the mail regulations then in

effect.

The controlling standard, first enunciated by the

Supreme Court in Conley v. Gibson, 355 U.S. 41, 45-46

(1957), is that an action may be dismissed for failure

to state a claim only if “it appears beyond doubt that

the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Although

the amended complaint drafted by Navarette’s attor-

ney is badly worded and is not entitled to application

of the “less stringent” standards reserved for pro se

pleadings (Haines v. Kerner, 404 U.S. 519, 520

(1972) ), we nevertheless view the allegations as suffi-

cient to state a claim for the violation of a first

amendment right to free expression.

In Martinez v. Procunier, 354 F. Supp. 1092 (N.D.

Cal. 1973), a case involving the censorship of prison-

ers’ mail pursuant to state prison regulations, a three-

judge distriet court enjoined enforcement of those

regulations. holding “that prisoners’ right to eorre-

spond is a fundamental right protected by the First

Amendmen*, and that restrictions on that right must

ey re ere en a

lili

be at least reasonably and necessarily related to a

valid institutional interest ....” 354 F. Supp. at 1097.

Reviewing that decision in Procunier v. Martinez, 416

U.S. 396 (1973), the Supreme Court affirmed on the

narrower basis that unjustified governmental inter-

ference with the intended communications violated the

first amendment rights, not of the prisoners, but of

the non-prisoner correspondents who were party to

those intended communications: the Court specifically

reserved the question to what extent “an individual’s

right to free speech survives inearceration ... .” 416

U.S. at 408.

Nevertheless, this court has indicated in at least two

recent decisions that a prisoner does not shed his first

amendment right to free expression upon entering the

prison gates. See McKinney v. De Bord, 507 F.2d 501,

505 (9th Cir. 1974) (opin. of Choy, J.): Seattle-

Tacoma Newspaper Guild, Local #82 v. Parker, 480

F.2d 1062, 1065 (9th Cir. 1973). Relying on the lan-

guage in these decisions and our essential agreement

with the rationale of the three-judge court in Mar

tinez, we think Navarette’s allegations, although inart-

fully worded, permit proof entitling him to relief.’

However, the district court’s grant of summary

judgment would have been appropriate if there were

tWe express no opinien as to whether Navarette’s allegations

of mail interference may state a claim for deprivation of his right

to counsel or of access to the courts, see Ex parte Hull, 312 U.S.

546, 548-549 (1941): Christman v. Skinner, 468 F.2d 723 (2d Cir.

1972): Nestre v. MeGinnis, 442 F.2d 178 (2d Cir. 1971). cert.

denied, 404 U.S. 1049 (1972); of his right to equal proteciion of

the laws, see Smith v. Schneckloth, 414 F.2d 680, 681 (Sth Cir.

1969); or of his fourth amendment rights, see United States v.

Savage, 482 F.2d 1371, 1373 (%h Cir. 1973). Cf. Wolff v. Me-

iv

no genuine issue of any material fact or, viewing the

evidence and the inferences which may be drawn

therefrom in the light most favorable to the adverse

party, the movant were clearly entitled to prevail as

a matter of law. Stansifer v. Chrysler Motors Cor-

poration, 487 F.2d 59, 63 (9th Cir. 1973).

In that regard, appellees argue that summary judg-

ment was proper on the ground that a reasonable and

good faith belief of a state official that his or her

conduct is lawful, even where in fact it is not, con-

stitutes a complete defense to a §1983 claim for dam-

ages.

True, the existence of a public officer’s “good faith”

immunity from $1983 liability has been recognized in

a number of situations. See Wood v. Strickland, .......

US. ......., 48 U.S.L.W. 4293 (Feb. 25, 1975); Scheuer

v. Rhodes, 416 U.S. 232 (1974); Pierson v. Ray, 386

U.S. 547 (1967); Tenney v. Brandhove, 341 U.S. 367

(1951). See also Williams v. Gould, 486 F.2d 547,

548 (9th Cir. 1973); Handverger v Harvill, 479

F.2d 518, 516 (9th Cir. 1973); Wimberley v. Cam-

poy, 446 F.2d 895, 896 (9th Cir. 1971): Notaras v.

Ramon, 383 F.2d 403, 404 (9th Cir. 1967). But here

appellees’ assertions that they acted in the good

faith belief that they were complying with valid regu-

lations are contradicted by Navarette’s affidavits. This

raised an issue of fact and precluded summary judg-

ment. See Wimberley, supra, 446 F.2d at 896.2 More-

2The existence or lack of good faith—a state of mind which is

therefore a subjective fact—generally is not the type of issne that

lends itself to resolution, on the basis of afiidavits, by summary

judgment.

SO te RN Np

v

over, the district court may not assume that the

defense of good faith is always available. In Williams

v. Gould, 486 F.2d 547, 548 (9th Cir. 1973), we said

that “[g]ood faith is a defense to liability for damages

in a suit under section 1983—at least if, and to the

extent that, it would be a defense ‘[u]nder the pre-

vailing view in this country’ in common-law actions

based on the parallel tort [citing Pierson v. Ray, 386

U.S. 547, 555 (1967)].” And in Wood v. Strickland,

supra, the Supreme Court concluded that § 1983 should

be construed to accord school board members a quali-

fied good faith immunity from damages under that

section where “common-law tradition” and “strong

public-policy reasons” so dictate. Slip-op. at 12. On

remand, the district court should determine whether

the defense of good faith is available in this action

in respect of causes one and two.

The dismissal of claims four and five was error.

The substance of those claims was that Navarette was

removed as prison librarian and a law-student visita-

tion program in which he participated was termi-

nated solely to punish or hamper his legal activities.

The termination or denial of prison privileges because

of a prisoner’s legal activities on his own behalf or

those of other inmates is an impermissible interference

with his or her constitutional right of aecess to the

courts. See Hooks v. Kelley, 463 F.2d 1210, 1211 (5th

Cir. 1972); Christman v. Shinner, 468 F.2d 723, 726-

727 (2d Cir. 1972). Hence the allegations concerning

the removal of Navarette as librarian constituted a

vi

valid claim. Similarly, the termination of the law-

student visitation program may well have had the effect

of impermissibly burdening Navarette’s right of access

to the courts. See Younger v. Gilmore, 404 U.S. 15

(1971), affirming Gilmore v. Lynch, 319 F. Supp. 105

(N.D. Cal. 1970); Procunier v. Martinez, supra, 416

U.S. at 419-422; Johnson v. Avery, 393 U.S. 483

(1969); Ex parte Hull, 312 U.S. 546 (1941).*

The district court also erred in granting summary

judgment as to the third claim and in dismissing the

sixth. The allegations in claim three are to the effect

that the acts charged in claims one and two were

committed negligently; and such was also the grava-

men of the sixth with respect to the acts charged in

claims four and five.

In Williams v. Field, 416 F.2d 483, 485 (9th Cir.

1969), cert. denied, 397 U.S. 1016 (1970), we recog-

nized that it was still an open question in this circuit

whether a negligent act can give rise to § 1983 lia-

bility. Since then, we have twice noted the issue with-

out deciding it. See Allison v. Wilson, 434 F.2d

646, 647 (9th Cir. 1970), cert. denied, 404 U.S. 863

(1971); Cockrum v. Whitney, 479 F.2d 84, 86 n.1

(9th Cir. 1973). '

Section 1983 creates a federal cause of action

against “[e]very person who, under color of any stat-

8We need not consider whether the alleged termination of the

librarianship or the law-student visitation program might con-

stitute a sufficiently significant invasion of Navarette’s liberty or

property interests requiring the procedural safeguards outlined in

—™ v. Procunier, 497 F.2d 809, 510 F.2d 613 (9th Cir.

1974).

Cute ts Cee: ee

aa 8 ee Ee

vil

ute, ordinance, regulation, custom, or usage, or any

State or Territory, subjects, or causes to be subjected,

any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured hy the

Constitution and laws ... .” The section places no

narrow limitation on the nature or quality of the con-

duct which it makes actionable, but concerns itself

entirely with the consequences of that conduct. More-

over, the Court indicated in Monroe v. Pape, 365 U.S.

167, 187 (1961) that § 1983 “should be read against

the background of tort liability that makes a man

responsible for the natural consequences of his

actions.” Reading the statute in the prescribed

fashion, we believe that a deprivation of rights need

not be purposeful to be actionable under § 1983. Cf.

Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962)

(in bane).*

4Other cireuits are in essential agreement. See, ¢.g., Hoitt v.

Vitek, 497 F.2d 598, 602 n.4 (ist Cir. 1974); Howell v. Cataldi,

464 F.2d 272, 279 (3d Cir. 1972); McCray v. Maryland, 456 F.2d

1, 5-6 (4th Cir. 1972); Jenkins v. Averett, 424 F.2d 1228, 1232-

1233 (4th Cir. 1970); Parker v. McKeithen, 488 F.2d 553, 556

(5th Cir. 1974), cert. denied, 419 U.S. 838 (1974); Roberts v.

Williams, 456 F.2d 819 (5th ‘ir. 1971), cert. denied, 404 U.S. 866

(1971); Whirl v. Kern, 407 &.2d 781, 787-789 (5th Cir. 1969),

cert. denied, 396 U.S. 901 (1969); Fitzke v. Shappell, 468 F.2d

1072, 1077 (6th Cir. 1972) ; Puckett v. Cox, 456 F.2d 233, 234-235

(6th Cir. 1972); Spence v. Staras, 507 F.2d 554, 557 (7th Cir.

1974) : Byrd v. Brishke, 466 F.2d 6, 10-11 (7th Cir. 1972) ; Joseph

v. Rowlen, 402 F.2d 367, 369-370 (7th Cir. 1968); Dewell v. Law-

son, 489 F.2d 877, 881-882 (10th Cir. 1974); Daniels v. Van De

Venter, 382 F.2d 29, 31 (10th Cir. 1967); Stringer v. Dilger, 313

F.2d 536, 540-541 (10th Cir. 1963); Carter v. Carlson, 447 F.2d

358, 365 (D.C. Cir. 1971), reversed on other grounds, 409 US.

418 (1973). But cf. Brown v. United States, 486 F.2d 284, 287-288

(8th Cir. 1973).

eee

Of course we do not imply that all tortious conduct

engaged in by a public official acting under color of

state law is subject to redress under § 1983. A § 1983

plaintiff must show that he has been deprived of a

federally protected right by reason of that conduct.

In the specific context involved here—the administra-

tion of state prison systems—federal courts have tra-

ditionally been loathe to intervene absent unusual

circumstances,’ and hence the extent to which many

federal rights held by ordinary citizens survive inear-

ceration is as yet uncertain. Cf. Wolff v. McDonnell,

418 U.S. 539, 555-556 (1974). Nevertheless, here the

prisoner’s rights which Navarette alleges to have been

violated are fundamental and reasonably well-defined ;

his allegations that state officers negligently deprived

him of those rights state a § 1983 cause of action.®

5This cireuit, like others, see e.g., Parker v. McKeithen, 488 F.2d

553, 556 (5th Cir. 1974); Sostre v. McGinnis, 442 F.2d 178, 191

(2d Cir. 1971), cert. denied, 404 U.S. 1049 (1972), has traditionally

been reluctant to interfere in matters of state prison administra-

tion. See Williams v. Field, supra, 416 F.2d at 485. See, e.g., May-

field v. Craven, 433 F.2d 873 (9th Cir. 1970) ; Smith v. Schneckloth,

414 F.2d 680 (9th Cir. 1969) ; Stiltner v. Rhay, 371 F.2d 420 (9th

Cir. 1967), cert. denied, 387 U.S. 925, 389 U.S. 964 (1967) ; Snow

v. Gladden, 338 F.2d 999 (9th Cir. 1964) ; Weller v. Dickson, 314

F.2d 598 (9th Cir. 1963), cert. denied, 373 U.S. 930 (1963). But

see Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969).

Nevertheless, as noted in Parker v. McKeithen, supra, 488 F.2d

at 556, “it can no longer be correctly asserted that the federal

courts are unwilling in all situations to review the actions of

state prison administrators to determine the existence of possible

violations of constitutional rights.” In this context, see Wolff v.

McDonnell, 418 U.S. 539 (1974), at 555-556 (opinion of the

Court) and 593-601 (Douglas, J., dissenting in part).

®‘Summary judgment as to the third cause of action was im-

proper because, as in the case of counts one and two, viewing the

evidence in the light most favorable to Navarette, we are unable

to say appellees are entitled to prevail as a matter of law.

a oe

AS hckin.: Mind il AGES the Be doa

Be. eet arena a oon i Ae an

The district court did not err in dismissing claims

seven, eight, and nine. In them, Navarette sought to

predicate the liability of defendants Procunier, Stone,

and Morris, not on a theory of personal liability, but

rather on the doctrine of respondeat superior. This

court has recognized that, in appropriate cireum-

stances, the Civil Rights Act does contemplate the

imposition of vicarious liability where such lia-

bility is authorized by state law. See Hesselgesser v.

Reilly, 440 F.2d 901, 903 (9th Cir. 1971); 42 U.S.C.

§ 1988. See also Hansen v. May, 502 F.2d 728, 730

(9th Cir. 1974); Boettger v. Moore, 483 F.2d 86, 87

(9th Cir. 1973). But here the State of California

specifically precludes the imposition of such liability

by statute. See Cal. Gov. Code § 820.8." Cf. the

Supreme Court’s reading of Hesselgesser in Moor v.

County of Alameda, 411 U.S. 693, 704 n.17 (1973).

All nine claims, so far as they purported to be

predicated upon 42 U.S.C. § 1985, were properly dis-

missed. Navarette’s pleadings and affidavits failed

sufficiently to allege the existence of the conspiracy

contemplated by that section. See, e.g., Griffin v.

Breckenridge, 403 U.S. 88, 102-103 (1971); Sykes v.

State of California, 497 F.2d 197, 200 (9th Cir. 1974) ;

Granville v. Hunt, 411 F.2d 9, 11 (5th Cir. 1969).

Affirmed in part, reversed in part, and remanded.

”

7The “Legislative Committee Comment—Senate,” which follows

§820.8, provides in part:

“This section nullifies the holdings of a few old cases that

some publie officers are vicariously liable for the torts of

their subordinates.” (Emphasis in original.)

x

Hu, District Judge, concurring in part and dissent-

ing 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

elaim”.’

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 sub-

stance of the claim. I quote in full the operative para-

graphs of the complaint in the footnote.’

1The 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.

2“TT

For approximately three months during the fall of 1971, plain-

tiff 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

2 Otte nd he

eee 6A

Bietere., een tm oP at ee was tae ECR Ete

xi

The claim begins by alleging that plaintiff held the

position of prison law librarian for three months dur-

ing the fail 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, plain-

prepare semi-adequate writs and pleadings in approximately

twelve different cases, on behalf of himself and others.

“THT

Starting on or about February, 1972, a small number of

Stanford law students, all of whom were acredited for super-

vised 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 advise 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.

“TV

Late in 1971, defendnats STONE and MORRIS, both indi-

vidually and in concert together, abruptly changed plaintiff’s

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 indi-

vidually and in concert together, also terminated the visitation

program described in the immediately preceeding paragraph, and,

as a proximate result thereof, thereby thwarted plaintiff’s efforts

to aequire an adequate fund of legal knowledge in respect to the

legal remedies available to himself and others. In direct conse-

quence of both actions by said defendants as described in the

within paragraph, plaintiff was prevented from pursuing in ade-

quate and timely manner, available legal remedies on behalf of

himself and others. wy

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 consti-

tutional rights.”

xii

tiff’s position was “abrupily” taken from him. No

separate statement of the defendants’ 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 pos-

sible. Again, the claim contains no separate statement

of defendants’ alleged intent or purpose in terminat-

ing 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 defend-

ants’ acts, paragraph V sweeps both apparently un-

related acts together and charges that they were

eee

OPN SH RR Oe

xiii

undertaken for the purpose of “thwarting and pre-

venting” plaintiff’s acquisition of “knowledge o.' avail-

able remedies... .”

What plaintiff has alleged, at most, is that he was

discontinued as prison librarian, and the student visi-

tation 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 mak-

ing a claim of interference with plaintiff’s right of

access to the courts. I do not believe it can he fairly

so read. In paragraph VI, plaintiff describes the con-

stitutional 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.’

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

3]t should be borne in mind that this plaintiff is no ordinary

prisoner pro per litigation. [is 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 con-

stitutional law, particularly the Civil Rights Act, and an aware-

ness of the essential elements of different theories of law which

ean be used, in different counts, to attack the same actions.

Plaintiff’s claim in paragraph IT of having been working on 12

different cases during the period in question seems eredible in-

deed. 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.

xiv

order to commence or prosecute court proceedings

affecting one’s personal liberty, or to assert and

sustain a diefense therein, and to send and receive

communiications to and from judges, courts and

lawveers concerning such matters.” Hatfield v.

Baiilleaux, 290 F.2d 632, 637 (9th Cir.) cert. den.

ssub nom Bailleaux v. Hatfield, 368 U.S. 862

(1961)

The eases 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 ‘‘. . . encompass 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}, uff’d

sub nom Younger v. Gilmore, 404 U.S. 15 (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 (1974)), the right to the assistance of knowledge-

able inmates (Johnson v. Avery, 393 U.S. 483 (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 prose-

cution 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

XV

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. Balleaus,

supra,

“Inmates have the constitutional right to waive

counsel and act as their own lawyers but this

dees not mean that a non-lawver must be given

the opportunity to acquire a legal edueation.”

290 F.2d at 641.

The statement in the majority opinion that “the

termination or denial of prison privileges hecause of a

prisoner’s legal activities is an impermissible inter-

ference 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 activi-

ties” with the right of access to the courts. The term

“legal activities” could encompass legal studies un-

related to any specifie case or it could encompass the

filing and prosecution of an action or it could en-

compass various activities in between, The term is

much too vague and too broad. As stated, T would

define access to the courts in the language which this

court has previously used in Hatfield v. Bailleauz,

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 fol-

lowing sentence in the majority opinion:

‘‘The termination or denial of prison privileges

because of a prisoner’s legal activities is an im-

permissible interference with his or her consti-

tutional 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 has

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 273 (2nd Cir. 1972),

is a holding by the Second Circuit that a § 1983 claim

is sufficient which charged that plaintiff was prohib-

ited from associating with fellow inmates and was

denied gym facilities on an equal basis with other

inmates because of, and in retaliation for bis com-

mencement 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 Christ-

man 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 com-

missary privileges as punishment for corresponding

with the courts, Again, a privilege generally avail-

xvu

able to all inmates was denied or terminated in a dis-

eriminatery manner as punishment for undertaking

court actions.

I believe that a more precise statement of the gov-

erning rule is that redress is affordable under $1983

for the discriminatory termination or denial of prison

privileges generally available to all inmates, under-

taken because of the prisoner's exercise of his right

of access to the courts. This requirement of diserim-

inatory action is specifically recognized in two cases

dealing with prisoners’ freedom of religion. Sosfre v.

McGinnis, 442 F.2d 178, 189 (2nd Cir. 1971), cert. den.

sub nom Sostre v. Oswald, 404 U.S. 1049 (1971), 405

U.S. 978 (1972); Cooper v. Pate, 378 U.S. 546 (1964),

and, in my view, should also be applied to the right

of aecess,

If I have correctly stated the rule of law, the in-

stant case does not fall within it because the face of

the complaint shows no discriminatory denial of priv-

ileges. No cause of action is stated even if it be as-

sumed 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 visttation program

was cancelled for the entire prison. There was no

discrimination against this particular plaintiff im-

volved. It must be conceded that the prison authori-

ties had the diseretion to initiate the program and

retained the discretion to terminate it at will. In my

view, when the non-diseriminatory termination of a

XxVili

prisonwide 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 dis-

continue the position entirely. If a given prisoner is

not selected for the 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.

xix

Appendix B

United States Court of Appeals

for the Ninth Cireuit

No, 74-2212

Apolinar Navarette, Jr., aka Paul

Medel Navarette,

Plaintiff-Appellant, |

vs |

Jiro J. Enomoto,* T. W. Stone, P. J.

Morris, B. Neal, R. Kramer, W. L.

Johnson, and Does One through

Four,

Defendants-A ppellees. ;

{Filed Jul. 29, 1976}

Before: Koetscn and Hursrepier, Circuit Judges,

and Hiiu,** District Judge.

Order Denying Petition for Rehearing

and Rejecting Suggestion for Rehearing In Bane

Judges Koelsch and Hufstedler voted to deny the

petition for panel rehearing and to recommend against

*During the pendency of this appeal, the appellee Raymond

K. Procunier, as Director of the Department of Corrections of the

State of California, was succeeded in that office by Jiro J. Eno-

moto. To reflect this change, the said Jiro J. Enomoto is substi-

tuted as one of the appellees in this action, and the caption of

the proceeding is amended accordingly.

**The Honorable Irving Hill, United States District Judge for

the Central District of California, sitting by designation.

(eo

xx

a rehearing in banc, Judge Hill voted to grant the

panel rehearing and recommended that the in hane

rehearing be granted.

The full court having been duly advised and no

judge of the court in active service having requested

a vote on the suggestion for rehearing in bane (F. R.

App. P. 35(b)), the petition for rehearing is denied,

and the suggestion for rehearing in banc is rejected.