# Petition — Procunier v. Navarette

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1661%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 555

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1661%3A1. Public record. Not legal advice.