Petitioners Brief — Lewis v. Casey

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

SAMUEL Lewis, et al.,

. Petitioners,

FLETCHER CASEY, Jr., et all,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE PETITIONERS

DANIEL P. STRUCK

Counsel of Record

Davi C. LEwis

EILEEN J. DENNIS

JONES, SKELTON & HocHULI

2901 N. Central Avenue

Suite 800

Phoenix, Arizona 85012

(602) 2638-1700

Attorneys for Petitioners

QUESTION PRESENTED

Whether the district court’s order in this “access to

courts” case, which greatly expands the State of Arizona’s

financial and administrative burdens and shifts much of

the management of the State’s prison system to the fed-

eral judiciary, exceeds the constitutional requirements set

forth in Bounds v. Smith, 430 U.S. 817 (1977).*

* Petitioners are the following prison officials of the Arizona

Department of Corrections: Samuel A. Lewis, Director; Warden

Robert Goldsmith, Arizona State Prison Complex, Florence; Warden

William Rhode, Arizona State Prison Complex, Perryville; Warden

George Herman, Arizona State Prison Complex, Douglas; Warden

Roger Crist, Arizona State Prison Complex, Tucson; Warden Hal

Cardin, Arizona State Prison Complex, Phoenix.

Respondents include twenty-two class representatives, on behalf

of themselves and all other similarly situated as inma

Arizona Department of Corrections. The twenty-two 1:

tive plaintiffs are Fletcher Casey, Jr., St

Bartholic, Armando Munoz, Kyle Baptisto, David tt

Lustig, Terry Don McFalls, Randy Sampson, John T i,

Tramposch, Pamela McQuillen, Carolyn Ferguson, Yvonne Martin,

David Tucker, Susan Colker, John Myers, Mary Jo Booker, I: andy

Thomas, Ruth Johnson, Roman Stone, and Robert Bankston.

(1)

TABLE OF CONTENTS

QUESTION PRESENTED ....................:..ccsscseeceseeeeeeseeees

po BR I Ee

III al rchanensactanssintetnsemmecnsunanesucnneapneeess

RST NT

CONSTITUTIONAL PROVISION INVOLVED ..........

STATEMENT OF THE CASE. ............2.-..--00cc----eccseeeeeeee0-

1. Arisona’s Prison System ........................-0-c-ccc0...002-

2. Arizona’s Policies and Practices Regarding In-

mate Access to the Courts ........................c0.0-0000---

a eeeesuenenanpponnonss

SUMMARY OF THE ARGUMENT ........000000000.

EE LE ee TT

I. THE CONSTITUTIONAL RIGHT OF AC-

CESS TO THE COURTS REQUIRES ONLY

THAT STATES PROVIDE INMATES A

“REASONABLY ADEQUATE OPPORTU-

NITY” TO PRESENT THEIR CLAIMS ..........

A. Under the Equal Protection and Due Process

Clauses, State Regulation of Inmates’ Access

to the Courts Is Not Subject to Heightened

EE ET RO Oe Ye

B. Prison Policies and Practices Violate the

Equal Protection and Due Process Clauses

If They Impose Arbitrary Barriers to In-

mates’ Access to the Courts .........0..0..--....... ee

(iii)

TABLE OF CONTENTS—Continued

Il. THIS CASE PRESENTS NO CONSTITU-

TIONAL VIOLATION BECAUSE ARIZONA’S

PRISON POLICIES AND PRACTICES DO

NOT IMPOSE ANY ARBITRARY BARRIERS

TO ACCESS AND CLEARLY SATISFY THE

STATE’S MINIMAL AFFIRMATIVE OBLI-

GATION TO PROVIDE MATERIALS AND

RESOURCES NECESSARY TO PROVIDE

“REASONABLY ADEQUATE ACCESS” ........

A. Respondents Failed to Demonstrate That

Any ADOC Policy Violated Their Access

Rights by Causing a Cognizable Injury........

B. No Violation Has Been Demonstrated Be-

cause ADOC’s Policies Impose No Arbitrary

Barriers and Meet the Minimal Affirmative

Obligation to Provide Resources Necessary

to Provide Reasonably Adequate Access........

III. ASSUMING ARGUENDO THAT SOME CON-

STITUTIONAL VIOLATION WAS ESTAB-

LISHED IN THIS CASE, THE REMEDY OR-

DERED BY THE DISTRICT COURT FAR

EXCEEDS THE PROPER SCOPE OF ANY

CONSTITUTIONALLY APPROPRIATE REM-

A. The Injunction Must Be Reversed in Its

Entirety Because It Is Not Narrowly

IE. cccinssinnnsitiinasdiadinanittitiaiatisbdiniimdiaiee

B. The Individual Components of the Remedy

Are Not Supported by Any Finding of Vio-

lation and Are Overbroad ............---..--....--------

COI I acccennsnsoccqepranssnverepsresnsncenseppevsmegeniniesccinpeenseyes

CASES P

TABLE OF AUTHORITIES

Anderson v. City of Bessemer City, 470 U.S. 564

rR aa saceitietiaaaiatatenanide

Apodaca v. Ommen, 807 P.2d 989 (Wyo. 1991)...

Bashor v. Risley, 730 F.2d 1228 (9th Cir.), cert.

denied, 469 U.S. 838 (1984) ....02 ee

Bell v. Wolfish, 441 U.S. 520 (1979) —......000..0-..

Blair v. Maynard, 324 S.E.2d 391 (W. Va. 1984)...

Bounds v. Smith, 4380 U.S. 817 (1977) ......-0000.......- passi

Boyd v. Wood, 52 F.3d 820 (9th Cir. 1995) —...........

Brown v. Bd. of Education of Topeka, Kansas, 349

— § GB Pane Rane bp

Breck v. Ulmer, 745 P.2d 66 (Alaska 1987), cert.

denied, 485 U.S. 1023 (1988) -.....................00.......

Burger v. Kemp, 483 U.S. 776 (1987) ....................

Burns v. Ohio, 360 U.S. 252 (1959) 2.000.

Califano v. Yamasaki, 442 U.S. 682 (1979) ...........

Campbell v. Miller, 787 F.2d 217 (7th Cir.), cert.

denied, 479 U.S. 1019 (1986) ~........000 ee. 33

Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993) .......... 5

Casey v. Lewis, 43 F.3d 1261 (9th Cir. 1994) ........ 12, 13

RIK Reo

SSSR &

Cepulonis v. Fair, 732 F.2d 1 (1st Cir. 1984)... 34

City of Burlington v. Dague, 112 S. Ct. 2638

II ninisiedtinilerehinetitieniaetitiahblese decdilenteciicestintidcemntetanniitllnen 20

City of Dallas v. Stanglin, 490 U.S. 19 (1989) ..... 18

Childs v. Pellegrin, 822 F.2d 1382 (6th Cir. 1987) .. 24

Conley v. Gibson, 355 U.S. 41 (1957) 2.000000... 25

Crawford-El v. Britton, 951 F.2d 1314 (D.C. Cir.

1991), cert. denied, 113 S.Ct. 62 (1992) ........... 30

Crooks v. Nix, 872 F.2d 800 (8th Cir. 1989) ........ 24

Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980) ...... 45

Dayton Bd. of Education v. Brinkman, 433 U.S.

RE ie A er te oR pete 38

DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988) .. 42

Douglas v. California, 372 U.S. 353 (1963) ......... 19

Estelle v. Gamble, 429 U.S. 97 (1976) ~.....00000000..... 24

Ex parte Hull, 312 U.S. 546 (1941) 20000. 14, 22

Findlay v. Lewis, 831 P.2d 830 (Ariz. App. 1991),

rev'd on other grounds, 8837 P.2d 145 (Ariz.

STITT siilidectnedecentcceleanatienenictaiadtliiett naibiitbabeaeienamentintadinainimeeadl his 25

TABLE OF AUTHORITIES—Continued

Page

Freeman v. Pitts, 503 U.S. 467 (1992) .................... 28

Gideon v. Wainwright, 372 U.S. 335 (1963) -....... 19

Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991)... 9

Gobel v. Maricopa County, 867 F.2d 1201 (9th Cir.

ID eithideteiceticddeciectin tieetitesdiniedRathcinsicnieitinaksaetinteitinn 24

Gordon v. Leeke, 574 F.2d 1147 (4th Cir.), cert.

denied, 489 U.S. 970 (1978) .........-....----.0--ece0---+ 25

Griffen v. Illinois, 351 U.S. 12 (1956) ................... 23

Hahn v. MeLey, 737 F.2d 771 (8th Cir. 1984) ..... 26

Haines v. Kerner, 404 U.S. 519 (1972) .............. 14, 24, 25

Hodge v. Police Officers, 802 F.2d 58 (2d Cir.

SE cccectnnsesictcitetinsianineniidiaienaiteailinaideaetanadiiiaiadiataiiianiiaiains 26

Hooks v. Wainwright, 775 F.2d 1433 (11th Cir.

1985), cert. denied, 479 U.S. 918 (1986) ........ 34, 45

Hudson v. Hardy, 412 F.2d 1091 (D.C. Cir. 1968) .. 25

Johnson v. Avery, 393 U.S. 483 (1969) ...... 14, 18, 22, 23

Johnson v. Moore, 948 F.2d 517 (9th Cir. 1991) ... 31

Jones v. North Carolina Prisoners’ Labor Union,

oe § Bh OF CC, Rea 21

Kay v. Ehrler, 499 U.S. 482 (1991) -~...................... 20

Keyes v. School Dist. No. 1, Denver, Colorado, 413

alta 38

Lewis v. Casey, 114 S. Ct. 1688 (1994) -.............. 1,13

Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982) .. 25

Lindquist v. Idaho State Bd. of Corrections, 776

iy § € ¢- 3 © RRSnREtSS cecSReyEErE 34, 40

I> Sacco v. Young, 564 A.2d 610 (Conn. App.

SITE ciscoennihiceeliksintadtiitaina tek ai lahat ay

Lockhart v. Fretwell, 113 S. Ct. 838 (1993) ........

Milliken v. Bradley, 418 U.S. 717 (1974) ............

Milliken v. Bradley, 483 U.S. 267 (1977) .............

Missouri v. Jenkins, 115 S. Ct. 2038 (1995) ........ 16, 27,

So & 8 &

38, 39

Moore v. Florida, 703 F.2d 516 (11th Cir. 1983) .. 25

Morrow v. Harwell, 768 F.2d 619 (5th Cir. 1985) .. 34

Murray v. Giarratano, 492 U.S. 1 (1989) ....... 18, 19, 20,

27, 28

Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987) ... 25

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .. 44

Pennsylvania v. Finley, 481 U.S. 551 (1987) ........ 17, 20

vii

TABLE OF AUTHORITIES—Continued

Page

Procunier v. Martinez, 416 U.S. 396 (1974), over-

ruled on other grounds, Thornburgh v. Abbott,

i i 17, 27

Rizzo v. Goode, 423 U.S. 362 (1976) -................... 30, 32

Robles v. Coughlin, 725 F.2d 12 (2d Cir. 1983) .. 25

Ross v. Moffitt, 417 U.S. 600 (1974) —........-.-000... 20

Ruark v. Solano, 928 F.2d 947 (10th Cir. 1991).. 24

San Antonio Independent School Dist. v. Rodriguez,

££ §£ fll Oe 18

Sands v. Lewis, 886 F.2d 1166 (9th Cir. 1989) .. 31

Shango v. Jurich, 965 F.2d 289 (7th Cir. 1992) .... 31

Simmons v. Dickhaut, 804 F.2d 182 (1st Cir.

ER DLE SGOT GS FESPA", NT I 25

Smith v. Bennett, 365 U.S. 708 (1961) 2.200000... 23

Strickland v. Washington, 466 U.S. 668 (1984) ... 23

Strickler v. Waters, 989 F.2d 1375 (4th Cir.),

cert. denied, 114 S. Ct. 398 (1998) —.........00000.

Swann v. Charlotte-Mecklenburg Bd. of Educa-

i I 38

Swazo v. Wyoming Dept. of Corrections State

Penitentiary Warden, 23 F.3d 332 (10th Cir.

REET RR IS Sli ee NCO NT Fane 25

Tedder v. Fairman, 418 N.E.2d 91 (Ill. App.

1981), aff'd in part, rev’d in part, 441 N.E.2d

RRR SATE ETeCe Air aaon a0 amma 25

Thornburgh v. Abbott, 490 U.S. 401 (1989) ......17, 27, 44

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.

1986), cert. denied, 481 U.S. 1069 (1987) ........ 41

Turner v. Safley, 482 U.S. 78 (1987) ......... 14, 18, 20, 21,

27, 36, 48, 44

Twyman v. Crisp, 584 F.2d 352 (10th Cir. 1978) ... 31

United States v. El Paso Natural Gas Co., 376

a I I catch ial lace 9

Vandelft v. Moses, 31 F.3d 794 (9th Cir. 1994),

petition for cert. filed (U.S. April 12, 1995)

RET CET SSS ee ny a Oe 31

Weaver v. Wilcox, 650 F.2d 22 (3d Cir. 1981) ... 25

Wilkinson v. McDougall, CTV 81-1397 (D. Ariz.

DEED csisdistibdesaicniiidipesindesas atiebbanietcitadibineiitiiilbbalees Sieh 3

Wolff v. McDonnell, 418 U.S. 539 (1974) ............ 19, 21

viii

TABLE OF AUTHORITIES—Continued

Page

Wood v. Housewright, 900 F.2d 1332 (9th Cir.

I ceeecesecnssecenisentrnintsevemensieatiaennnmmmcctimestimence 26

Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981) ..... 25

Other Authorities

18 U.S.C. § 3006A (g) (1994) ......-...----ce--ceeeceeeeeeeeees 25

28 U.S.C. $ 1854(1) (1988) ...........-...-...cceecerecseenceoneese 2

, pee tees) 0) ) 1

28 U.S.C. § 1915 (d) (1994) ....-...--------------ceeeeeeeeeenenees 25, 26

pe he Pe Fl) 25

42 U.S.C. § 1B48(B) (19B1) ....-.--------roeecorecceeceeeseeeeeee 1

4B USC. © 1GGB CORDED 2222002 e0e0eecccccvcecsecccecccreeseeee 9, 30, 33

4B US.G. 6 IBBB CIGBE) q..-------n0-cecnnccorenccecneeressersecessees 20

Rule 82.4(c), Arizona Rules of Criminal Pro-

ATE REE LEGA ater a Rese Oe 20

American Bar Association, Judicial Administration

Division, Standards Relating to Trial Courts,

§ 2.23, Conduct of Cases Where Litigants Appear

Without Counsel (1992 ed.) —.............--.--.----000000+ 26

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-1511

SAMUEL LEwis, et al.,

" Petitioners,

FLETCHER CASEY, JR., ef ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals is reported at 43

F.3d 1261; Pet. App. A at la. The opinion of the dis-

trict court is reported at 834 F. Supp. 1553; Pet. App.

B at 19a. The district court’s October 13, 1993 perma-

nent injunction (Pet. App. C at 57a) is unreported, and

was stayed by this Court in an order published at 114

S. Ct. 1638; Pet. App. D at 86a.

JURISDICTION

The district court’s jurisdiction was invoked under 42

U.S.C. § 1343(3) (1991) and 28 U.S.C. § 1331 (1993).

The United States Court of Appeals for the Ninth Circuit

entered its judgment on December 27, 1994. The Peti-

tion for Writ of Certiorari was filed in this Court on

March 14, 1995, and was granted on May 22, 1995. This

Court has jurisdiction under 28 U.S.C. § 1254(1)

(1993).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment provides, in relevant part:

{N]Jo State shall make or enforce any law which shall

. . . deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

AWS. SPATEMENT OF THE CASE

This is an inmate “access to the courts” class action

against Petitioners, who are prison administrators for

the Arizona Department of Corrections (“ADOC”). Al-

though Arizona provides its inmates with access to dozens

of law libraries across the State, each stocked with an im-

pressive array of legal materials, plus support from inmate

law clerks and legal assistants, the Hon. Carl A. Muecke,

District Judge for the District of Arizona, held that Ari-

zona’s program was insufficient to satisfy the inmates’

right of access to the courts under Bounds v. Smith, 430

U.S. 817 (1977). Without identifying any system-wide

constitutional violation, the district court nevertheless

issued a minutely detailed, system-wide injunction that

administers essentially all aspects of Arizona’s program

of providing inmates access to the courts.

The Ninth Circuit affirmed. The issues before this

Court are whether the lower courts erred in finding a

constitutional violation at all, and whether the lower

courts’ system-wide and intrusive injunction is invalidly

overbroad and so far exceeds the requirements of the

Constitution as to usurp the State’s executive power to

administer the law and its legislative power to spend, in

violation of principles of poth federalism and separation

of powers.

1. Arizona's Prison System.

The Arizona prison system consists of nine separate

complexes spread across the State, each of which con-

tains several individual housing units. R.T. 1/27/92 at

11-12. At the time of trial in 1992, Arizona housed

15,346 inmates, and had 26 law libraries. Jd. Since then,

the system has expanded to more than 22,000 inmates and

33 law libraries. Libraries are located at each of the

nine prison complexes. In most cases, each housing unit

has its own separate law library. Inmates in housing

units without libraries have access to libraries in adjacent

housing units within the complex. R.T. 1/14/92 at 92-93;

J.A. 182-184.

2. Arizona’s Policies and Practices Regarding Inmate

Access to the Courts.

ADOC devotes considerable resources and personnel

to providing inmates with law libraries, legal assistants,

and basic supplies so that inmates can have meaningful

access to the courts. The policies and practices are sum-

marized belc

a. Law libraries. Every prison library in Arizona is

stocked, at a minimum, with all the books on the

“Muecke List.” * The “Muecke List” is a list of law books

that Judge Muecke, in Wilkinson v. McDougall, CIV 81-

1397 (D. Ariz. 1984), ruled were constitutionally re-

quired to be provided to inmates in the Central Unit law

library at the Florence complex. Pet. App. B at 32a-33a.

‘The attached Appendix “A” summarizes undisputed evidence

about the law libraries in the Arizona prison system at the time of

trial. The chart presents the number of inmates at each unit, the

number of library staff at each library, whether “shelf browsing” is

permitted, and whether each law library contains the books from the

“Muecke List.” The data are taken from the parties’ stipulation,

J.A. 37-63, Pet. App. B at 19a-4la, and undisputed evidence at trial.

2 Referred to by the district court as the “Muecke List.” Pet.

App. B, at 32a. '

The “Muecke List” contains the following materials:

United States Code Annotated; Supreme Court Reporter;

Federal Reporter (Second) and (Third); Federal Supplr

ments; Shepard’s U.S. Citations; Shepard’s Federal Cita-

tions; Local Rules for the Federal District Court; Modern

Federa! Practice Digest; Federal Practice Digest (Sec-

ond); Arizona Code Annotated; Arizona Reports; Shep-

ard’s Arizona Citations; Arizona Appeals Reports; Ari-

zona Law of Evidence (Udall); ADC Policy Manual; 108

Institutional Management Proceedings; Federal Practice

and Procedures (Wright); Corpus Juris Secundum; and

Arizona Digests. Pet. App. B at 32a-33a. Some of the

libraries additionally contain self-help litigation manuals,

including the 1983 edition of the Prisoner's Self-Help

Litigation Manual. Several libraries also contain the

Pacific Reporter (Second) series. Pet. App. B at 34a.

The library system maintains an interlibrary loan pro-

gram. Thus, libraries that do not have a particular vol-

ume of interest to an inmate may obtain a copy from

other prison libraries that have it or from the Arizona

State University Law School library. R.T. 1/792, p.

98; J.A. 149-150.

b. Library hours. Pursuant to departmental policy,

all law libraries in the prison system must be open for

inmate use at least twelve hours per day, between the

hours of 7:00 a.m. and 10:00 p.m., seven days a week.

Exhibit 785. Law libraries can obtain exemptions to the

law library hour requirement, depending on usage. Most

of the law libraries received exemptions because of the

actual low usage. J.A. 43-44; Appendix A. For example,

on average, only three inmates per week were using the

law library at Yuma, so an exemption was issued to

shorten the library’s hours. R.T. 1/27/92, pp. 33-34; J.A.

212-213. Most of the law libraries are open in excess

of forty hours per week. J.A. 38-49; Appendix A. In-

mates may request additional law library time whenever

needed. J.A. 38-40, 42, 44, 46-48.

c. Inmate access to the libraries. General-population

inmates may “browse” the bookshelves in most law li-

braries. Appendix A. In all of the units at the Perryville

complex and the Kaibab unit at the Winslow complex,

however, inmates must go to the counter and ask a law

clerk to retrieve materials. Inmates need not give an

exact citation. Instead, they can receive materials by

making a general request. R.T. 1/15/92 at 144; J.A.

209. Administrators at the Perryville complex terminated

browsing at the unit law libraries after discovering that

inmates had vandalized the legal materials. J.A. 148-149;

Exhibit 834. The Kaibab library cannot physically ac-

commodate shelf-browsing by inmates due to space limita-

tions. Pet. App. B at 20a.

For high security inmates, physical access is restricted

because of safety and security concerns, in keeping with

the greater physical restrictions that are required for these

inmates. Two types of high security inmates exist. First,

the “lockdown” facilities at the Special Management Unit

(SMU) and Cellblock 6 (CB-6) in the Florence complex

house the most dangerous and violent prisoners in the

Arizona prison system. These prisoners are at such “a

very high custody level,” that two prisoners “can’t be in

any common area at any time, restrained or unrestrained.”

R.T. 1/7/92 at 154; J.A. 162. These prisoners are per-

mitted access to the law libraries, but must remain in

glass-encased stalls inside the law library when they con-

duct legal research. Pet. App. B at 20a; Casey v. Lewis,

4 F.3d 1516, 1519 (9th Cir. 1993). The separate stalls

permit several prisoners to use the library at once, in a

manner that preserves security. R.T. 17/92 at 154; J.A.

162-163. These prisoners request and receive legal ma-

terials from a law clerk or library personnel. R.T. 1/15/92

at 144; J.A. 208-209.

Second, some inmates, for disciplinary or security rea-

sons, are segregated from general-population inmates in

lockdown cellblocks within a prison complex. These are

known as Complex Detention Units (“CDUs”).* These

inmates are housed in CDUs pending a disciplinary hear-

ing or transfer to a maximum security unit. R.T. 1/27/92

pp. 39-40; J.A. 213-214. At the time of trial, approxi-

mately 261 Arizona inmates were segregated in CDUs.

R.T. 1/27/92 at 8-20. CDU inmates are denied physical

access to the law library for several reasons. For exam-

ple, two officers must transport a lockdown inmate across

a prison yard containing general-population inmates to

the library—producing a potentially volatile situation for

both inmates and officers. R.T. 1/27/92 at 8-20. Pro-

viding two-guard escorts requires additional staffing.

Even with the use of escorts, mixing general population

inmates with segregated inmates creates a security risk.

R.T. 1/27/92 at 39-40; J.A. 213-214.

To provide high security inmates with access to the

law library while also avoiding the security and logistical

problems of transporting CDU inmates to the libraries,

ADOC permits materials to be brought to such inmates.

Lockdown inmates who seek legal materials or a legal

assistant send a written request to the law library. R.T.

1/27/92 at 39; J.A. 213. The legal materials are then

brought to the inmate’s lockdown cell, id.; Pet. App. B

at 21a, generally within twenty-four hours of the request.

R.T. 1/1592 at 107-108; J.A. 195-196. CDU inmates

are usually allowed to keep their materials for more than

twenty-four hours. /d. There is no restriction on the

number of books an inmate can request. R.T. 1/7/92

at 86, 112; J.A. 144-145, 156.

d. Library personnel. At the time of trial, eight of

the twenty-six unit law libraries employed full-time li-

brarians. Appendix A. All of the librarians had either

a master’s or an undergraduate degree in library science.

R.T. 1/7/92, pp. 74, 75, 80, 150, 151, 152; J.A. 137-

138, 141, 160-161; R.T. 1/15/92, pp. 94-96, 100, 142;

3 CDUs are located at the Douglas, Perryville, Winslow, Tucson,

and Alhambra complexes. R.T. 1/27/92 at 8-20.

J.A. 186-88, 190, 208. The other libraries were managed

by correctional service officers - Appendix A. The librarians

and correctional service officers in charge of law libraries

attended annual, three-day seminars where law library

training was conducted by the Director of Library Serv-

ices. Id. Librarians and correctional service officers also

attended a nine-week course, which covered topics on

constitutional law and post-conviction law. R.T. 1/7/92,

pp. 261-262; J.A. 174-175. Librarians also attended

other workshops and seminars for training purposes. /d.

In addition, Petitioners employed at least fifty-five inmate

law clerks who provided general library services and

specific research assistance to inmates, and maintained

the law library collections. J.A. 50-54; Appendix A.

e. Legal assistance. All inmates may request assistance

from law clerks and legal assistants. Law clerks are in-

mates who are paid to provide general library research

assistance, such as assisting library personnel in locating

materials. Law clerks do not assist inmates specifically in

preparing pleadings. R.T. 11/22/91 at 152; R.T. 12/17)

91 at 257; R.T. 12/19/91 at 120-121; J.A. 66-67, 130-

131. An inmate can be both a law clerk and a legal assist-

ant. Id.

Legal assistants are unpaid volunteers who assist other

inmates by preparing their cases and drafting pleadings.

Legal assistants are chosen from inmates who are deter-

mined to be capable of assisting other inmates with legal

research and writing and whose institutional records indi-

cate the ability to handle the responsibilities of an inmate

egal assistant. Exhibit 785. At the time of trial, there

were at least ninety volunteer legal assistants throughout

the State. J.A. 50-54; Appendix A.

f. Qualification and training of legal assistants. In

most Arizona prison complexes, inmates apply to the

warden to become legal assistants. Pet. App. B at 30a.

Two ADOC complexes have developed tests for inmates

seeking to become law clerks and legal assistants. I/d.

With respect to training, the Central Unit in Florence

has an extensive training program for legal assistants. The

Tucson complex provided an 18.5 hour program for

inmate legal assistants in July, 1990. Pet. App. B at

30a-31a. Aside from these programs, ADOC has no

mandatory training program for inmates or civilians

who provide legal assistance. Pet. App. B at 30a. Para-

legal courses are available, however, through correspond-

ence or closed-circuit television. Pet. App. B at 3la;

R.T. 1/7/92 at 186-187; J.A. 127. Many law clerks and

legal assistants have completed or are currently taking

paralegal courses. R.T. 12/17/91 at 253; 12 18/91 at

101; and R.T. 12/1991 at 113; J.A. 101, 105, 127.

g. Non-English assistance. Generally, non-English

speaking inmates are assisted by interpreters. ADOC

recruits bilingual inmate legal assistants for inmates who

do not speak or read English. R.T. 1/15/92, p. 100; J.A.

190; Exhibit 785. Inmates who do not speak English

may obtain assistance from bilingual law clerks, legal

assistants, staff members or inmate translators. R.T.

12/18/91, p. 106; R.T. 12/19/91, p. 114; R.T. 1/1492,

p. 92; R.T. 1/15/92, p. 100; R.T. 1/27/92, p. 110; J.A.

108-109, 127-128, 182-183, 190.

h. Access to counsel. It is ADOC policy that corres-

pondence is the primary means of communication between

an inmate and his attorney. R.T. 1/27/92, pp. 40-41;

J.A. 214-215. When an inmate has a court deadline or

an immediate need to speak to an attorney, a telephone

call can be arranged. /d. Telephone calls are scheduled

as soon as they can be arranged, generally within twenty-

four to forty-eight hours after the request. Inmate re-

quests for telephone calls are granted unless the inmate

is abusing the system. R.T. 1/14/92, p. 94; J.A. 184-185.

Telephone calls are made in a counselor's office on a non-

monitored telephone line. R.T. 1/27/92, pp. 40-41; J.A.

214-215. The counselor may remain in the office while

the inmate makes the telephone call, but counselors are

instructed not to listen to the calls and will leave the

office if requested. R.T. 1/27/92, p. 41; J.A. 214-215;

R.T. 1/15/92, p. 137; J.A. 206-207; R.T. 1/14/92, p.

95; J.A. 185.

i. Photocopying. Under departmental policy, inmates

receive photocopies of court documents and other legal

papers within forty-eight hours of their request to dupli-

cate them. Exhibit 785; R.T. 1/7/92, pp. 102-103, 162-

164, 265; J.A. 151-152, 165-167, 176-177; R.T. 1/15/92.

pp. 108-109; J.A. 195-197. An inmate may receive copies

in less time if necessary to meet a legal deadline. /d.

Inmates may observe while their documents are being

photocopied. Id. The photocopies are scanned visually

to make sure they are legal documents and do not contain

contraband. Otherwise, the documents are not read. /d.

3. The Proceedings Below.

a. District Court. Twenty-two Arizona inmates filed

this class action pursuant to 42 U.S.C. § 1983 claiming,

inter alia, that Arizona prison officials unconstitutionally

denied them meaningful access to the courts. After a

bench trial, the district court ruled in the inmates’ favor.

Pet. App. B at 48a.‘ The district court appointed a

special master to design a legal access program (Pet.

App. E), which the court adopted in its October 13, 1993

permanent injunction order. Pet. App. C at 50a-85a.°

* Although this Court has repeatedly criticized lower courts for

“their verbatim adoption of findings of fact prepared by prevailing

parties,” Anderson v. City of Bessemer City, 470 U.S. 564, 572

(1985) ; United States v. El Paso Natural Gas Co., 376 U.S. 651.

656-57 & n.4 (1964), the district court in this case adopted the

prisoners’ proposed findings in their entirety. Compare Pet. App.

B at 19a-4la with R. 362 at 212-233.

5 The permanent injunction was taken almost entirely from a

previous injunction drafted by the same special master in Gluth

v. Kangas, 951 F.2d 1504 (9th Cir. 1991). Compare Pet. App. C

at 50a-85a with Pet. App. E at 96a-113a.

The minutely-detailed injunction is sweeping in scope

and imposes upon the State an array of extraordinary

remedies. Despite the absence of any specific findings that

ADOC policies either resulted in a classwide violation or

caused a member of the class to suffer constitutional

injury, the district court ordered system-wide relief. The

injunction required Petitioners, among other things, to:

(1) open all ADOC law libraries between fifty and

eighty hours per week, including night and weekend

hours, regardless of demand (Pet. App. C at 62a);

(2) allow inmates, regardless of their security status,

to determine where and with whom they could sit in

the libraries (id. at 63a);

(3) provide fully equipped law libraries at every

prison unit with a capacity of 150 inmates (id. at

61a);

(4) hire full-time, professionally trained librarians

with law or paralegal degrees for every law library

(id. at 67a);

(5) provide a fifty to sixty-hour training course for

inmate legal assistants every six months, consisting

of a thirty to forty-hour video component and a

twenty-hour live component (id. at 71a-72a);

(6) provide a weekly minimum of three twenty-

minute telephone calls to an attorney, an attorney

representative, or legal organization (id. at 76a);

(7) purchase a complete, up-to-date set of Pacific

Reporters and Digests for each law library (id. at

69a);

(8) permit all inmates direct access to library stacks,

unless Petitioners can first document an actual secu-

rity risk (id. at 61a);

(9) provide the special master with the prison’s

schedules of activities and events, the names of all

library employees, and their specific work schedules

(id. at 63a);

(10) permit inmates to select the times at which

they will use the law libraries (id. at 63a-65a);

(11) accede to the conditions imposed by the court

for the removal of inmates from the libraries, as well

as the removal of legal assistants (id. at 67a, 71a);

and

(12) correct all structural or acoustical problems to

reduce noise level in the libraries (id. at 68a).

This relief ensures inmates obtain not just reasonable

access, but optimal access to the courts—access that far

exceeds that available to ordinary residents of the State.

The injunction also creates an ongoing, and essentially

permanent, role for the special master in managing the

State’s prisons." Among other things, the special master

must:

* analyze the library and inmate turnout schedules

to assess library attendance and determine whether

any alterations are required for adequate access

(id. at 64a);

oversee the preparation of, and grant final approval

to, an introductory guide to the nse of the law

libraries in Spanish and English (id. at 66a);

work with ADOC officials to secure qualified ap-

plicants for librarian positions (id. at 67a);

approve the hiring of law librarians who have

library science degrees, rather than law or para-

legal degrees (id.);

*In its order appointing the special master, the district court

required ADOC officials to deposit at least $5,000 a month in a

bank account maintained for use by the special master and his

assistant. Pet. App. E at 94a. This account was reserved solely

for the special master’s costs, such as travel and office expenses.

Id. The special master and his assistant billed ADOC an average

of approximately $12,000 per month in fees and costs while moni-

toring the prison system before this Court issued the stay, even

though the injunction was not yet implemented.

* assist in identifying appropriate self-help manuals

and forms for the libraries, and approving their

use (id. at 69a); and

* review the proposed syllabus and schedule, as well

as the instructor’s experience, for each live offer-

ing of instruction to the legal assistants (id. at

72a).

In addition, the ADOC must provide to the special master

copies of many of the official records and notices that

ADOC is required to produce daily in administering the

injunction, such as the daily log book pages for the

law libraries (id. at 63a), the written notices of reasons

provided to inmates when they are removed from the

library for disruptive behavior (id. at 67a), and the writ-

ten notices provided to inmates when they are denied

legal assistant status (id. at 70a).

b. Ninth Circuit. The Ninth Circuit affirmed the

injunction in all relevant respects." The court held that

(1) ADOC violated the right to court access by failing

to staff all libraries with trained bilingual legal assistants,

Pet. App. A at 8a; Casey v. Lewis, 43 F.3d 1261, 1267

(9th Cir. 1994), and (2) the 261 “lockdown” inmates

with previous disciplinary or security problems were en-

titled to physical access, “unless ADOC can demonstrate

actual security risks.” Pet. App. A at 6a; Casey, id. In

response to ADOC’s argument that the scope of the in-

junction far exceeded the requirements of the Constitu-

tion as set forth in Bounds v. Smith, 430 U.S. 817 (1977),

7 The court of appeals vacated in part and remanded in part on

issues not directly germane to this case. Pet. App. A at 17a-18a.

The issues remanded concern the $46 indigency standard imposed

by the district court, the proper copying costs, and the district

court’s refusal to allow Petitioners any opportunity to object to

the fees of the special master. The only portion of the injunction

vacated by the Ninth Circuit was the ordered purchase of electric

typewriters, which Respondents conceded on appeal were not con-

stitutionally required.

the Ninth Circuit simply held that the district court had

“broad” and inherent powers to fashion equitable relief.

Pet. App. A at 13a; Casey, 43 F.3d at 1270. While

acknowledging that the remedy must do no more than

correct a specific violation, and that the remedy may not

unduly intrude into the administration of the prison sys-

tem, the Ninth Circuit upheld the remedial measures the

district judge ordered. Petitioners applied for and this

Court stayed the injunction pending the timely filing of a

petition for writ of certiorari. Lewis v. Casey, 114 S. Ct.

1638 (1994); Pet. App. D at 86a.

SUMMARY OF ARGUMENT

The district court in this case has arrogated to itself

the executive and legislative functions of operating a

State’s prison operation as it relates io the use of legal

resources. The court attempted to micromanage virtually

every aspect of the prison library, from when a library

must remain open to what access to the shelves is appro-

priate for prison inmates. This extraordinary remedial

decree is unsupported by any systemic violations of the

Constitution that could remotely support the breathtaking

sweep of the district court’s actions.

For two independent reasons, the judgment of the

lower courts must be reversed. First, under this Court’s

decisions interpreting the Due Process and Equal Protec-

tion Clauses as they apply to inmates, Respondents have

not proven a constitutional violation. Second, even if

some constitutional violation had been established, the

breadth of the injunction violates this Court’s well-

established principle that the remedy be no broader than

necessary to cure the violation.

1. Although the text of the United States Constitution

does not identify an inmate’s “right of access” to the

courts, this Court has held that the Due Process and Equal

Protection Clauses prohibit the imposition of arbitrary

barriers to inmates’ access. State regulation of inmates’

access to the courts is not, however, subject to heightened

scrutiny. Inmates are not a “suspect” class, and access to

law libraries and legal assistants is not a fundamental

right. Under Turner v. Safley, 482 U.S. 78 (1987), ra-

tional basis review is the proper standard for assessing

prison regulations that allegedly infringe inmates’ access

rights.

Prior to Bounds v. Smith, 430 U.S. 817 (1977), this

Court held that the Constitution precludes the States from

imposing unique burdens on inmates’ ability to engage

in litigation simply because of their status. See, e.g.,

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

Hull, 312 U.S. 546, 549 (1941). In Bounds, the Court

held, consistent with its prior decisions, that the States

must also provide inmates with basic supplies and access

to legal materials, not otherwise available because of

their confinement, so that inmates can present their

claims in court. The inquiry is whether a particular re-

source is necessary to give inmates a “reasonably ade-

quate opportunity” to present their claims. This Court

did not intend to require “optimal access.” Nor did it

command that inmates must have access to any partic-

ular type of library or form of legal assistance.

The Court also recognized that what is “reasonably

adequate” must be evaluated in light of the liberal

“notice” pleading standard that is used to evaluate papers

filed by pro se litigants. Haines v. Kerner, 404 U.S. 519,

5204 (1972). Because courts are obligated to apply the

law liberally in such matters and can appoint counsel to

represent inmates who may have valid claims, the require-

ments for access are quite minimal.

Finally, the States’ obligation to provide access should

be interpreted in light of the special need for judicial

deference to decisionmaking by prison officials. Turner,

482 U.S. at 84-85. Principles of federalism and separa-

tion of powers counsel judicial restraint absent the clear-

est proof of systemic constitutional violations.

2. To establish a violation of their constitutional

rights, Respondents must demonstrate that Arizona’s pol-

icies either impose arbitrary and irrational barriers to

access or that the State fails to provide the minimal ma-

terials and resources that are necessary to overcome the

inherent limitations of confinement. Neither showing has

been made in this case. Accordingly, no constitutional

vici«uion has been demonstrated.

As an initial matter, the lower courts fundamentally

misanalyzed the liability issue by concluding that there

was a constitutional violation despite the fact that Re-

spondents failed to prove that they suffered any cogniza-

ble constitutional injury, such as the inability to raise a

claim or meet a filing deadline, as a result of Arizona’s

policies. Moreover, the State’s policies do not impose

any arbitrary barriers to access and clearly satisfy the

minimal affirmative obligation to provide resources nec-

essary to provide reasonably adequate access. Bounds

requires “adequate law libraries or adequate assistance

from persons trained in the law,” but not both. All of

Arizona’s prisoners have such access. First, all of Ari-

zona’s prison libraries already contain the extensive

“Muecke List” law books—and some contain more exten-

sive collections—and certainly meet the minimum stand-

ard of Bounds.

Illiterate or non-English speaking inmates not only

have physical access to these well-stocked libraries, but

also have help from legal assistants. This access, which

places these inmates in at least the same position as

their civilian counterparts, satisfies constitutional require-

ments.

Finally, segregated high-risk inmates have adequate ac-

cess to law books via the paging system, and they have

additional access to inmate law clerks and legal assist-

ants. Arizona’s restrictions on their physical access to the

library are reasonably related to the State’s legitimate

penological interests.

Because no constitutional violation occurred here, the

lower courts overstepped their Article II] authority in

ordering the State to implement a system-wide program

of penal reform.

3. Even if some aspect of Arizona's legal access pro-

gram is constitutionally inadequate, the exhaustive system-

wide remedy is grossly overbroad. As the Court made

plain last Term in Missouri v. Jenkins, 115 S.Ct. 2038

(1995), a federal court’s remedy must relate to the origi-

nal violation and must do no more than correct that

specific violation. Here, the injunction does not relate to

any ident mstitutional defect. Rather, it imposes a

sweeping system-wide remedy, with no findings of a

system-wide violation.

Moreover, an examination of the individual compo-

nents of the injunction reveals that all of them are over-

broad, and not adequately supported by any finding

a constitutional violation. For example, the injunction’s

requirement that lockdown prisoners be permitted direct

access to the stacks is not supported by any finding that

inmates have suffered a constitutional injury from the

current policy, and ignores the State’s legitimate penologi-

cal objective of preventing situations that present the

risk of violence. The remaining components of the dis-

trict court’s order suffer from the same fundamental flaws

and must be overturned.

ARGUMENT

CONSETTU TEEN Ak RIGHT OF ACCESS TO

RES ONLY THAT STATES

Rather than » Coenen if Arizona’s legal access pro-

gram met the constitutional minimum of t reasonably ade-

quate access, the lower courts erroneously examined

whether the program provided inmates with optimal ac-

cess to legal materials and assistance. Thus, the lower

courts’ entire approach was fundamentally flawed.

The Fourteenth Amendment principles underlying in-

mates’ right of access, and this Court’s decisions con-

struing that right, require only tat States (1) not impos

arbitrary barriers to inma

= the minimal materials

paren a constitutior

and the deuuthe om . :

access” involve only a mit imi

wide discretion reasonably to ‘regulate and control their

prison facilities. Arizona’s access program clearly meets

istitutional minimum.

” Chai, fies he

Courts Is Not §

The United States Constitution contains no textual

guarantee of a “right of access” to the courts, either for

inmates or for anyone else. Nevertheless, this Court has

neld that the Constitution prohibits the imposition of

arbitrs ry barriers to inmates’ access s to the courts, either

as an element of equal protection, Pennsylvania v. Finley.

481 U.S. 551, 557 (1987). or as an element of due

process, Procunier v. Martinez, 416 US. 396, 419

(1974), overruled on other grounds, Thornburgh v.

Abbott, 490 U.S. 401 (1989). See Murray v. Giarratano,

492 U.S. 1, 11 n.6 (1989).

1. The Equal Protection Clause of the Fourteenth

1endm prohibits classifications that are based upon

issible criteria or that interfere with the exercise

of fundamental rights. When a challenged classification

does not involve a suspect class and does not implicate

a fundamental right, the appropriate standard of review

by a court is rational basis scrutiny. City of Dallas v.

Stanglin, 490 U.S. 19, 23 (1989). Under rational basis

review, state action implicating a particular group of

persons, such as inmates, is permissible as long as it bears

“‘some rational relationship to a legitimate state pur-

pose.” Jd. (quoting San Antonio Independent School

Dist. v. Rodriquez, 411 U.S. 1, 44 (1973)).

The rational basis standard applies to equal protection

analysis of prison programs relating to court access. In-

mates are not a “suspect” class for which courts must

apply a heightened standard of scrutiny when evaluating

equal protection claims and this Court has not included

inmate access to law libraries or legal assistants in the

limited category of fendamental rights to which height-

ened scrutiny applies." Therefore, state action impairing

inmates’ ability to present claims (based solely upon their

Status as inmates) violates the Equal Protection Clause

only if that state action is not rationally related to a

legitimate state interest in running the prison efficiently

or effectively. Johnson v. Avery, 393 U.S. 483 (1969).

8 While the Bounds Court, in passing, did refer to “the funda-

mental constitutional right of access to the courts,” 430 U.S. at

828, the bce did not indicate that it intended to include access

tional rights ic which } heightened scrutiny snpfiee. This Court =

never used strict scrutiny to analyze prison regulations relating

to court access, either in Bounds or in any other case. To the

contrary, the Court made clear in Turner v. Safley, 482 U.S. 78, 89

(1987), that heightened scrutiny does not even apply to prison

regulations that burden conceded!y fundamental! rights of inmates.

2 oy nee eee ee eee fe ae >

ble under the Equal Protection Clause.

the extent that inmate “access to courts”

fae

without due process of law. “The e

SS ee SS oe oe

access” to vindicate, generally im-

licat either liberty interests (i.e., habeas corpus claims)

or property interests (i.e., constitutional claims for in-

junctive relief or damages). Thus, inmates are entitled

to due process of law before these rights are impaired.

_ This case, epee. does not involve in

| Amend-

circumstances, individuals, including prison inmates,

are entitled to counsel pursuant to the Sixth Amendment.

Gideon v. Wainwright, 372 U.S. 335 (1963) (trial);

Douglas v. California, 372 U.S. 353 (1963) (appeal).

insteac » this case involves only rights of “access” limited

iction claims, such as federal habeas

ghts claims. Bounds, 430 U.S. at 828 n.17

(court’s “main concern here is ‘protecting the ability of an

inmate to prepare a petition or complaint’) (citing Wolff

v. McDonnell, 418 U.S. 539, 586 (1974)).

The Due Process Clause does not require the State to

provide counsel to inmates who pursue discretionary ap-

peals and post-conviction remedies. Murray v. Giarratano,

492 U.S. 1 (1989) (neither the Eighth Amendment nor

the Due Process Clause requires States to appoint counsel

indigent death row inmates seeking state post-convic-

tion relief); Pennsylvania v. Finley, 481 U.S. 551, 557

(1987) (state post-conviction relief ) ; Ross v. Moffitt,

417 U.S. 600, 616 (1974) ( discre’ ionary -—. % Nor

has this Court ever

mates who bring civil clz

The issue in this case involves the States’ due process

bligations to inmates, including those without counsel,

who are seeking access to the courts to pursue civil rights

claims and post-conviction remedies. As set forth more

fully below, state action that impairs inmates’ ability to

present their claims to a court will pass muster under the

Due Process Clause if it does | not Ss eee impede access

and, subject to legitimate penological restrictions, pro-

vides the materials and

ween necessary to overcome

the barriers to access inherent in the fact of incarceration.

3. Turner v. Safley, 482 U.S. 78 (1987), makes clear

that rational basis scrutiny is the proper standz

view for a prison regulation that allegedly infringes in-

mates’ constitutional rights. /d. at 89 (“when a e*

regulation impinges on inmates’ constitutional ri

penological interests”). ” This standard is “necessary i

‘prison administrators . . . , and not the courts, tae) to

make the difficult judgments concerning institutional oper-

Arizona exceeds constitutional requirements by affirmatively

uwililin counsel to indigents in state court post-conviction pro-

ceedings. Murray, 492 U.S. at 12 n.7; Rule 32.4(c), Arizona Rules

of Criminal Procedure. Thus, the court access sought by unrepre-

sented inmates in Arizona’s prison system is largely for the purpose

of filing federal habeas corpus petitions and civil rights actions.

10 Fee-shifting statutes like 42 U.S.C. § 1988, however, provide

an economic incentive to attract counsel to meritorious civi] rights

cases. Such cases that do not attract counsel are probably too

risky or “too unlikely to succeed.” See City of Burlington v. Dague,

112 S.Ct. 2638, 2642 (1992); Kay v. Ehrler, 499 U.S. 482, 436

ions.” Id. (quoting Jones v. North Carolina Prisoners

Union, t Inc., 433 U.S. 119, 128 (1977)).

Prison policy infringes on inmates’ pe hore ole

r there is a valid, rational

connection Gees the prison policy and the legitimate

governmental interest put forward to justify it; (2)

whether the inmates have alternative means of exercising

their constitutional right; (3) the impact that accommo-

dation of the constitutional right will have on guards,

other inmates, and the allocation of prison resources; and

(4) whether the absence of ready alternatives is evidence

of the reasonableness of the prison regulation. 482 U.S.

at 99-90. With respect to the last factor, the Court

phasized that “[t}his is not a ‘least restrictive alterna-

tive’ test.” Id. at 90; see also id. at 89 (heightened

scrutiny would distort the decisionmaking process because

“every administrative judgment would be subject to the

possibility that some court somewhere would conclude

that it had a less restrictive way of solving the problem at

hand”). Rather, “the existence of obvious, easy alterna-

tives may be evidence that the regulation is not reasonable,

but is an ‘exaggerated response’ to prison concerns.” /d.

at 90.

B. Prison Policies and Practices Violate the Equal

Protection and Due Process Clauses If They Impose

Arbitrary Barriers to Inmates’ Access to the

Courts.

This Court’s pre-Bounds cases focused on and invali-

dated state regulations that created hurdles, either in the

form of special requirements or special limitations, for

inmates seeking court access, hurdles that do not exist for

non-inmates who wish to bring lawsuits. Wolff v. Mc-

Donnell, 418 U.S. 539 (1974) (Nebraska prison regula-

tion prohibiting legal assistance from inmates other than

the warden-designated inmate “legal advisor” violates right

of access); Johnson v. Avery, 393 U.S. 483, 490 (1969)

(striking down Tennessee prison policy that prevented

inmates from assisting other inmates in preparing “Writs

or other legal matters”); Ex parte Hull, 312 US. 546,

549 (1941) (invalidating Michigan prison regulation al-

lowing prison officials to confiscate inmate’s petition for

habeas corpus). While, unquestionably, the very nature

of their confinement causes inmates certain obstacles to

conducting litigation, these cases stand for the unremark-

able proposition that due process prevents States from

imposing additional arbitrary burdens on inmates’ ability

to engage in litigation.

In Bounds v. Smith, 430 U.S. 817 (1977), this Court

held that the Constitution not only prohibits regulations

that actively and arbitrarily interfere with inmates’ access

to the courts, but that States must provide basic supplies

and access to legal materials—that are not otherwise avail-

able because of the condition of confinement—so that

inmates can present their claims to the courts. This issue

of an “affirmative duty” arises because inmates who are

not represented by counsel may lack the basic resources

necessary to present their claims; not only pens and paper,

but also the ability to secure rudimentary legal knowledge

and advice.

The Court held in Bounds that States have an obliga-

tion to “assist inmates in the preparation and filing of

meaningful legal papers by providing inmates with ade-

quate law libraries or adequate assistance from persons

trained in the law.” 430 U.S. at 828 (emphasis z

The Court also made clear that “indigent inmates must

be provided at state expense with paper and pen to draft

legal documents with notarial services to authenticate

them, and with stamps to mail them.” /d. at 824-25. Fi-

nally, the Court referred to its prior decisions holding

that States must provide transcripts and waive filing fees

for indigent inmates, just as they do for other indigent

citizens. Id. at 822 (citing Smith v. Bennett, 365 U.S.

708 (1961) (State may not require indigent inmate to

pay a filing fee before docketing his application for a writ

of habeas corpus); Burns v. Ohio, 360 U.S. 252 (1959)

(State may not require indigent criminal defendant to pay

a filing fee before seeking leave to appeal); and Griffin

v. Illinois, 351 U.S. 12 (1956) (State must provide in-

digent criminal defendant with copy of trial transcript) ).

In particular, the Court stated that the inquiry is

“whether law libraries or other forms of legal assistance

are needed to give inmates a reasonably adequate oppor-

tunity to present claimed violations of fundamental con-

stitutional rights to the courts.” Bounds, 430 U.S. at 825

(emphasis added). The “reasonable adequacy” standard

had been used in the prison setting in this Court’s prior

decision in Johnson, 393 U.S. at 489 (State may not

deprive “those unable themselves, with reasonable ade-

quacy, to prepare their petitions” of legal assistance) (em-

phasis added); and in Bounds, 430 U.S. at 823, 824,

830 (State must provide inmates with “meaningful access”

to the courts).

To determine the boundaries of a State’s duty to per-

mit “reasonably adequate” access, it is clear that—con-

trary to the holdings below—this Court did not intend to

require optimal access, that is, the best access possible in

the prison setting. Had the Court intended to ensure

that inmate litigation be optimized, the Court simply

would have mandated the appointment of counsel." In-

stead, the Court’s focus in Bounds was on ensuring that

inmates have an opportunity—roughly equivalent to the

"Indeed, even inmates who have a Sixth Amendment right to

counsel are entitled only to “effective” counsel, not “optimal” coun-

sel. See Lockhart v. Fretwell, 113 S. Ct. 888 (1993); Burger v.

Kemp, 483 U.S. 776, 794 (1987) (“in considering claims of ineffec-

tive assistance of counsel, we address not what is prudent or

appropriate, but only what is constitutionally compelled’’) (internal

quotation omitted) ; Strickland v. Washington, 466 U.S. 668 (1984).

opportunity available to similarly situated non-inmates—

to present claims that are available to them and to file

papers that are sufficient for the courts to evaluate. Id.

at 825 (inquiry is whether inmates have “a reasonably

adequate opportunity’ to present claimed violations” ); id.

at 828 (right of access is designed to ensure that inmate

can file “meaningful legal papers”). A State that provides

either law libraries * or legal assistance has provided in-

mates with a reasonable opportunity to understand whether

they have claims and, if so, to set forth the necessary

facts in a form that will permit courts to evaluate the

inmates’ complaints.

Moreover, the constitutional duty imposed upon the

States is an obligation to ensure that inmates have access

to the courts, rather than access to any particular type

of library or form of legal assistance. Id. (“[A] legal

access program need not include any particular element

we have discussed, and we encourage local experimenta-

tion”). Prison libraries and legal assistants are a means

to an end—that is, the provision of “reasonably adequate”

access to the courts under existing notice pleading stand-

ards—not an end in themselves.

2. Inmates engaged in pro se litigation—unlike mem-

bers of the bar—need only identify the general nature of

their claims and the alleged facts supporting them. Pur-

suant to this Court’s decision in Haines v. Kerner, 404

U.S. 519, 520 (1972), all federal circuits and many state

courts evaluate pro se pleadings under “less stringent

standards.” '* See also Estelle v. Gamble, 429 U.S. 97,

12 Jd. at 830 (“adequate law libraries are one constitutionally

acceptable method to assure meaningful access to the courts’).

13 See, e.g., Strickler v. Waters, 989 F.2d 1375, 1386-87 (4th

Cir.), cert. denied, 114 S. Ct. 393 (1993); Ruark v. Solano, 928

F.2d 947, 949 (10th Cir. 1991); Crooks v. Niz, 872 F.2d 800, 801

(8th Cir. 1989); Gobel v. Maricopa County, 867 F.2d 1201, 1203

(9th Cir. 1989); Childs v. Pellegrin, 822 F.2d 1382, 1385 (6th

EO ——

106 (1976). Generally, a pleading will 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.’” Haines,

404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41,

45-46 (1957)). In practice, courts often go to extraordi-

nary lengths to avoid dismissing potentially meritorious

claims, liberally allowing inmates to amend their plead-

ings and even instructing them on how to do so.'* When

courts suspect that the inmate has a valid claim, they can

appoint counsel to represent inmates, pursuant to 28

U.S.C. § 1915(d) (1994) for civil rights claims and 18

U.S.C. § 3006A(g) (1994) for federal habeas corpus

petitions.”

Cir. 1987); Simmons v. Dickhaut, 804 F.2d 182, 184 (1st Cir.

1986); Moore v. Florida, 703 F.2d 516, 520 (11th Cir. 1983);

Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1988); Lewis v.

Faulkner, 689 F.2d 100, 102 (7th Cir. 1982); Weaver v. Wilcoz,

650 F.2d 22, 26 (3d Cir. 1981); Woodall v. Foti, 648 F.2d 268,

271 (5th Cir. 1981); Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C.

Cir. 1968); Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987), cert.

denied, 485 U.S. 1023 (1988); Findlay v. Lewis, 831 P.2d 830, 837

(Ariz. App. 1991), rev’d on other grounds, 837 P.2d 145 (Ariz.

1992); Apodaca v. Ommen, 807 P.2d 939, 948 (Wyo. 1991): Lo

Sacco v. Young, 564 A.2d 610, 612, 613 (Conn. App. 1989); Blair

v. Maynard, 324 S.E.2d 391, 396 (W.Va. 1984) ; Tedder v. Fairman,

418 N.E.2d 91, 97 (Ill. App. 1981), aff'd in part, rev'd in part,

441 N.E.2d 311 (Ill. 1982).

4 See, e.g., Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)

(giving civil rights litigants an opportunity to amend complaints

while simultaneously advising them of potential meritorious theories

of recovery) ; Gordon v. Leeke, 574 F.2d 1147, 1152-53 (4th Cir.),

cert. denied, 4839 U.S. 970 (1978).

For federal habeas corpus petitions, 18 U.S.C. § 3006A(g)

(1994) authorizes federal courts to appoint counsel if “the interests

of justice so require.” Counsel must be appointed for any habeas

petitioner granted an evidentiary hearing. Rule 8(c), 28 U.S.C.

foll. § 2254 (1994); Rashor v. Risley, 730 F.2d 1228, 1234 (9th

Cir.), cert. denied, 469 U.S. 838 (1984); Swazo v. Wyoming Dep't

Under the “notice pleading” system, courts apply

the law liberally, regardless of whether inmates have

cited appropriate legal authorities, presented legal anal-

yses, or correctly identified their claims."* Inmates pri-

marily need to present the facts underlying their claims,

for which they can rely on their personal knowledge.

The facts do not even need to be presented completely

or precisely, as courts liberally grant leave to amend

or appoint counsel when presented with ambiguous

factual allegations that suggest a meritorious claim. Thus,

the goal of inmate access requirements is not to “improve”

inmate pleadings pursuant to some objective standard of

quality. Instead, the goal is to ensure that inmates have

the basic resources necessary to file minimally adequate

of Corrections State Penitentiary Warden, 23 F.2d 332, 333 (10th

Cir. 1994).

Courts use varying standards for appointing counsel for indigents

in civil cases under 28 U.S.C. §1915(d) (1994). See e.g., Hahn

v. McLey, 737 F.2d 771, 774 (8th Cir. 1984) (per curiam) (appoint-

ment upon request if colorable claim presented) ; Hodge v. Police

Officers, 802 F.2d 58, 60-61 (2d Cir. 1986) (multiple factor test,

with threshold requirement that the indigent’s position seems

likely to be of substance). Even courts requiring a showing of

“exceptional circumstances” allow the appointment of counsel

where there is a likelihood of success on the merits and complex

claims are at issue that the plaintiff has a limited ability to

articulate. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

1990).

16 See American Bar Association, Judicial Administration Divi-

sion, Standards Relating to Trial Courts, § 2.23 at 38-39, Conduct

of Cases Where Litigants Appear Without Counsel (1992 ed.)

(“[I]t is ultimately the judge’s responsibility to see that the

merits of a controversy are resolved fairly and justly. Fulfilling

that responsibility may require that the court, while remaining

neutral in consideration of the merits, assume more than a merely

passive role in assuring that the merits are adequately presented.

... Where litigants represent themselves, the court in the interest

of fair determination of the merits should ask such questions and

suggest the production of such evidence as may be necessary to

supplement or clarify the litigants’ presentation of the case’).

pleadings that can be measured against the “notice plead-

ing” standards."

3. Finally, claims of inmate “access” to the courts

should be weighed in light of the special need for judicial

restraint in the area of prison decisionmaking. Such re-

Straint rests upon this Court’s acknowledgement of the

greater expertise of prison officials concerning issues of

penal management. See Thornburgh v. Abbott, 490 U.S.

401, 407-08 (1989) (courts should defer to prison admin-

istrators in resolving the day-to-day problems in man-

aging a prison, which lie within the expertise of prison

officials ). Because of the volatility and danger inherent

in prisons, the risks of substituting courts for wardens

and other administrators are unacceptable. Thus, only the

clearest showings of constitutional injury can justify judi-

cial intervention.

) Judicial deference to the judgment of prison admin-

istrators stems not only from the judiciary’s limited com-

petence in penal management, but also from the doctrine

of separation of powers. As this Court stated in Bell v.

Wolfish, 441 U.S. 520, 548 (1979) (citing Procunier,

416 U.S. at 405):

[J Judicial deference is accorded not merely because

the administrator ordinarily will, as a matter of fact

in a particular case, have a better grasp of his domain

than the reviewing judge, but also because the oper-

ation of our correctional facilities is peculiarly the

province of the Legislative and Executive Branches

of our Government, not the Judicial.

Similar concerns were reiterated by the Court in Turner

v. Safley, 482 U.S. at 84-85 (1987):

17 Reasonably adequate access “can be satisfied in various ways.”

Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J. and

O’Connor, J. concurring in judgment). The manner in which

Bounds is implemented, of course, is left to State legislatures and

prison administrators who “must be given ‘wide discretion’ to

select appropriate solutions.” Jd.

Running a prison is an inordinately difficult under-

taking that requires expertise, planning, and the com-

mitment of resources, all of which are peculiarly

within the province of the legislative and executive

branches of government. Prison administration is,

moreover, a task that has been committed to the

responsibility of those branches, and separation

of powers concerns counsel a policy of judicial

restraint.”

In addition to separation of powers concerns, federal-

ism concerns are implicated in this case. As this Court

repeatedly has noted in the school desegregation context,

State institutions and facilities should be run by State and

local officials. See, e.g., Missouri v. Jenkins, 115 S. Ct.

2038, 2054 (1995); Freeman v. Pitts, 503 U.S. 467,

489 (1992); Brown v. Board of Educ., 349 U.S. 294,

299 (1955). That principle applies with at least equal

force when the federal courts attempt to manage the

operations of State penal facilities. Thus, fundamental

principles of federalism, as well as separation of powers,

dictate that Bounds’ limited requirement of access to the

courts not become a license for comprehensive federal

judicial supervision of State corrections facilities.

* * * *

In sum, due process and equal protection considera-

tions impose two categories of limitations on State policies

and practices affecting inmate access to the courts. First,

a State may not impose arbitrary obstacles to inmates’

ability to prepare and present claims to the courts. Sec-

ond, a State must take reasonable steps, to the extent they

are consistent with any legitimate penological interest, to

eliminate barriers to court access that are inherent in the

18 Justice O’Connor, in a concurring opinion, recently affirmed

that “[bleyond the requirements of Bounds, the matter is one of

legislative choice based on difficult policy considerations and the

allocation of scarce legal resources.” Murray, 492 U.S. at 13

(O’Connor, J., concvrring).

fact of incarceration. This latter obligation simply means

that, subject to limitations based upon security or other

legitimate concerns, an inmate’s ability to gain access to

the courts from within the prison setting should be approx-

imately the same as his ability to do so outside of the

prison setting. As Bounds makes clear, access to basic

materials and resources, either libraries or legal assistance,

generally satisfies the State’s obligation.

As long as a State complies with these limited and spe-

cific constitutional obligations, it should be the preroga-

tive of State legislators and administrators to decide

whether State funds should be spent on trying to improve

the quality of inmate pleadings, as opposed to hiring

additional prison guards or improving prison educational

or recreational facilities—or, for that matter, increasing

State spending on schools, parks or roads, or reducing

taxes.

Il. THIS CASE PRESENTS NO CONSTI

VIOLATION BECAUSE ARIZONA’S PRISON POLE

CIES AND PRACTICES DO NOT IMPOSE ANY

ARBITRARY BARRIERS TO ACCESS AND

CLEARLY SATISFY THE STATE’S MINIMAL

AFFIRMATIVE OBLIGATION TO PROVIDE MATE-

RIALS AND RESOURCES NECESSARY TO PRO-

VIDE “REASONABLY ADEQUATE ACCESS.”

To establish a class-wide violation of their right of

access, Respondents must show that Arizona’s policies

either impose arbitrary and irrational barriers to access for

a significant portion of the class, or that the State fails

to provide those minimal materials and resources that

are necessary to overcome the inherent limitations of con-

finement. Neither showing was made in this case. The

record clearly establishes that the State meets, and in

significant respects exceeds, the minimum requirements

set forth in Bounds. Accordingly, no class-wide violati

has been demonstrated. serge

“(t}he plain words of ection ity

the form of payment of seitvendive damages 0 or

being placed under an injunction—only for conduct which

‘subjects, or causes to be subjected’ the ‘inant

deprivation of rights secured by the Con r yor the

laws.” Rizzo v. Goode, 423 US. | (

See also Sheldon H. Nahmod, C ivil Rights and Civil Lib-

erties Litigation: The Law of Section 1983 123 (2d ed.

1986) (Section 1983 “requires that a defendant's

duct be a cause in fact of plaintiff's constitutional depriva-

non. }

Most federal courts require inmates asserting “access

to court” claims to demonstrate that some identifiable

$0 — or resource deficiency caused them actual

> with respect to contemplated or existing litiga-

the inability to meet a filing deadline or to

° Ring Strickler v. Waters, 989 F. 2d 1375,

trict court in “this case © applied

1992 deprivation must

“i

Mil

]

;

~~.

istance program, ¢ even

cies” have not resulted in any

linked to an “adverse litigation effect’); Shango v. Jurich,

965 F.2d 289, 292 (7th Cir. 1992) (complainant must show “some

quantum of detriment caused by the challenged conduct of state

officials resulting in the interruption and or delay of _—*

pending or contemplated litigation” (emphasis in original)

Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir. 1978) (injury re-

—— not satisfied ‘where complainant failed to _ » =

by ate | to file for extensions of time).

* The Ninth Circuit affirmed the injunction without addressing

Petitioners’ argument that the district court d in granting

relief without finding actual injury. See Pet. 8 n 6.

*! This approach has not been followed consistently in the N

¢ ircuit. See Saaaase t. Moore, 948 F 2d 5

leat and ¢ ‘executi itive functions in ‘violation

separation of powers and, in this case,

re were no constitutional violations established

1e applicatio stat any ADOC poli The

eading or to meet a a filing

: ence of this essential ele

ment of : a Section 1983 violation, the district court ordered

comprehensive system-wide relief. In effect. the district

court ordered relief based upon the —— possibility

4 sossibility that

9 i 2:2 ==a'e

inmate had his - pe witl piajadion and one instance

in which an illiterate inmate was unable to file « legal action Pet

App. B at 26a; 8834 F. Supp. at 1568 Aricona has met its con

stitutional obligations with respect to illiterate and non-Eng!ish

speaking prisoners. See infra at 35. According!y y. any lack of

1 does not constitute

cogn isable

Gale Gaal & to beh Co Which © ennai

g of liability, and the judgment below should

d in its entirety.”

Arizona doe *% impose any arbitrary

access for inmates incarcerated in its prisons.

spondents effectively concede as much. Thus,

issue is whether the ‘State has se ° the mi

sources that are necessary to provide reasonably

several respects exceeds. its ‘affirmative oblgat n

provide basic legal resources and supplies Accordingy

because Arizona's programs comply on |

Fourteenth Amendment requirements

findings of actual injury resulting from these |

no system-wide violation has been demonstrated

what it says and require only

adequate assistance from pe ~

both See Campbell » 87 Fad 217. 229

(7th Cir.), cert. denied, 479 US. 1019 (1986); Lind-

quist v. Idaho State Bd. of Corrections, 776 F.2d 851,

855 (9th Cir 1985): Morrow v. Harwell, 768 F.2d 619,

623 (Sth Cir 1985); Hooks v. _ 775 F.2d

ibraries or other forms of legal assistance. n >= =

junctive, no fewer an five Gmes rasis

nal)). cert. denied, 479 US. 913 (1986):

v Far. — F.2d 1. 6 (ist Cir 1984). Pe

clearest indication that Bounds requires cither law ’

braries or legal assistants is the portion of this Court's

7 ae

rn Cop

into prison administrabon Rathe: t ordered

oficrals | themselves to devise a remedy for the viola

cum at Guia 0, Chan Ge ies ages

Finally, the State’s restrictions on library access for the

261 lockdown inmates do not violate those

of access because they clearly bear a rational relationship

to legitimate State penological interests under Turner. See

supra at p. 20. Because there were no findings that any

of these inmates suffered actual injury as a result of these

restrictions, no remedy should issue.

urt should overturn the dramatic expansion

of Bounds from a decision requiring the minimal resources

ary permit an inmate to present a claim to a

nto a license for a federal court to micromanage

ns and facilities. Bounds established the

what is necessary to ensure inmates’ access

if a State provides either adequate law

legal assistants who are familiar with the

clamms that inmates are likely to raise, then the

nas provided inmates with a “reasonably adequate”

g opportunity to present their claims to a

urt. No more is constitutionally required.

(Il ASSUMING ARGUENDO THAT SOME CON

TIONAL VIOLATION WAS ESTAB

THIS CASS, Tus REM I

SCOPE OF ANY CONBTETUEDELAAL Yt i

PRIATE REMEDY.

umber of envelopes: and sheets of paper that

> mm ¢ per week (Pet. App. C at

ce that may be charged for photocopies

am? inpunction ~cads like a regulatory code

-— 4 w

~e¢ Specta

By imposing this injunction, the courts below have granted

the special master control over a significant portion of the

Arizona Legislature’s spending power.

The precise bases for the various components of the

district court’s remedial decree is unclear. For example,

the court does not hold that the actual hours of operation

of the libraries or the precise educational backgrounds of

librarians independently violate the Constitution. Accord-

ingly, the components of the decree do not directly remedy

any specific constitutional wrong. If there is a basis for

imposing some relief, these components cannot be justified

as a proper exercise of remedial discretion given the very

limited nature of any constitutional violation that is sup-

ported by the record in this case.

Thus, if the record supports some findings that one or

two inmates suffered constitutional injury as a result of

ADOC’s “access” policies and practices, the injunction

imposed upon ADOC in this case must be reversed in its

entirety because of the failure of the courts below to tailor

the injunction to remedy any particularized constitutional

violations. In light of the State’s compliance with the

Constitution's requirements for inmate access to the courts,

no basis exists to support the far-reaching injunctive

remedy imposed by the courts below. Moreover, an

examination of the individual components of the injunc-

tion—and the absence of any constitutional support for

those components—warrants reversal of the judgment

below.

A. The Injunction Must Be Reversed in Its Entirety

Because [t Is Not Narrowly Tailored.

The expansive district court injunction violates the fun-

damental principle that equitable remedies must be nar-

rowly tailored to address specific constitutional violations.

See Califano v. Yamasaki, 442 U.S. 682, 702 (1979)

(“the scope of imyunctive relief is dictated by the extent of

the violation establishe ”); Milliken v. Bradley, 418 U.S.

717, 738 (1974) (“Milliken I) (“a federal remedial

power may be exercised ‘only on the basis of a constitu-

tional violation’ and, ‘{a]s with any equity case, the nature

of the violation determines the scope of the remedy’ ”)

(quoting Swann v. Charlotte-Mecklenburg Bd. of Educa-

tion, 402 U.S. 1, 16 (1971)); Milliken v. Bradley, 433

U.S. 267, 282 (1977) (“Milliken II”) (“federal-court

decrees exceed appropriate limits if they are aimed at

eliminating a condition that does not violate the Consti-

tution or does not flow from such a violation” ).

Just last Term, in Missouri v. Jenkins, 115 S. Ct. 2038

(1995), this Court reversed a district court injunction in

a school desegregation case because the injunction ex-

ceeded the court’s remedial authority to address specific

constitutional violations. The purpose of the remedy was

inter-district, to attract non-minority students from outside

the school district, whereas the constitutional violation was

intra-district. The Court chastised the lower court’s pur-

suit of “desegregative attractiveness” as the “hook on

which to hang numerous policy choices about improving

the quality of education in general within the [school dis-

trict].” 115 S. Ct. at 2054 (internal quotation omitted).

See also Dayton Bd. of Education v. Brinkman, 433 U.S.

406, 417 (1977) (instead of tailoring injunctive remedy

commensurate with specific constitutional violations, court

improperly imposed system-wide remedy); Keyes v. School

Dist. No. 1, Denver, Colorado, 413 U.S. 189, 213 (1973)

(only if there has been a system-wide impact may there

be a system-wide remedy ).

The district court’s injunction in this case, like the

order in Jenkins, exceeds the court’s remedial authority

and intrudes on Arizona’s legislative and executive pre-

rogatives. The injunction is not limited to curing any

demonstrated constitutional violation. It is, instead, sim-

ply a “wish list” that embodies the district court's goals

for penal reform. Like the lower courts in Jenkins, the

courts here have used the inmates’ generalized claims of

lack of access as a “hook on which to hang numerous

policy choices about improving” their lot in general. See

Jenkins, 115 S. Ct. at 2054.™ |

In sum, even if Respondents could point to some

ADOC policies or practices that have, in particular cir-

cumstances, led to an actual impairment of an inmate’s

right of access to the courts, the injunction issued by the

courts below far exceeds any measure of the remedial

power necessary to remedy such violations. By imposing

their expansive vision of “appropriate” prison access re-

quirements, in the absence of any hint of comparably

expansive violations, the courts below have overstepped

their constitutional authority. Accordingly, the judgment

below must be reversed.

B. The Individual Components of the Remedy Are Not

Supported by Any Finding of Violation and Are

Overbroad.

Even if the gross overbreadth of the injunction did not

mandate its reversal in its entirety, the particular com-

ponents of the injunction, examined in isolation, also are

overbroad and not adequately supported by any finding

of a constitutional violation. Each of the particular com-

mands of the injunction, from library contents to access

to counsel, is completely unsupported by any particular-

ized finding of constitutional injury necessary to support

the relief sought. Accordingly, the judgment below should

be reversed.

1. Library contents and staffing. Arizona’ prison

libraries are adequate under any concept of “reasonably

™% The injunction ‘n this case actually is far more problematic

than the one in Jenkins. While the exietence of an underiying anc

system-wide constitutional violation was undisputed in /enkins

in this case there is no constitutional violation tha? justifies the

exercise of federal remedial power See Section I!

adequate” and “meaningful” access. See, supra, at 3-9.

The district court even observed that “the facilities

appear to have complete libraries.” Pet. App. B at 33a,

46a.

Despite this observation, the district court concluded

that self-help manuals and Pacific Digests and Reporters

are “necessary for the inmates to pursue their cases,’

Pet. App. at 46a, 69a. But regional reporters certainly

are not constitutionally required; the law library collec-

_tion approved in Bounds did not contain them. See

Bounds, 430 U.S. at 819 n.4; see also Lindquist v. Idaho

State Bd. of Corrections, 776 F.2d 851, 856 (9th Cir.

1985) (Pacific Reporter not required). Nor is it clear

how regional reporters could be “necessary” to Arizona

inmates, given that the prison libraries contain the Ari-

zona Reports.” In essence, the district court ordered this

additional set of books because it thought them desirable,

thereby equating what is desirable with what is constitu-

tionally required.

The district court also erred in requiring Arizona to

hire full-time, professionally trained librarians with law,

paralegal, or library science degrees for every library.

Pet. App. C at 67a. In so ruling, the court exercised its

injunctive authority, not upon a showing of constitutional

need, but on a judicial “guess” about what resources

might improve inmates’ litigation opportunities. There is

no finding, and no evidence in the record to support 4

finding, that Arizona's current library staff is constitu-

tionally inadequate or that inmates have been denied

court access because the librarians were underqualified

Accordingly, the district court exceeded its authority in

requiring the State to expend funds to recruit and hire

% Contrary to Respondents’ position in the Ninth Circuit, it is

not Arizona's obligation to provide regional reporters for out-

of-state prisoners incarcerated in Arizona who desire out-of-state

egal materials; that is, if anything, the sending State s obligation

Royd « Wood. 52 F.3d 820, 821 (8h Cir. 1996

individuals with advanced degrees to serve as law

librarians.

2. Library hours. Arizona’s existing policy with re-

spect to library hours is reasonable. It is predicated on

the rationale that actual use should dictate the hours of

operation. Indeed, there is no finding, and no evidence

in the record to support a finding, that inmates have been

denied court access because of inadequate library hours.

Accordingly, the additional requirements imposed by the

injunction constitute improper judicial micromanagement.

3. Library access. Arizona provides inmates liberal

access to libraries, permitting them direct access to the

stacks in most facilities. See supra at 5-6. The 261 high-

risk inmates who have been placed in lockdown facilities

for disciplinary or other violations are excepted. Never-

theless, they still have access to library materials through

a paging. or book-retrieval, system as well as access to

legal assistants. Prison officials adopted the paging sys-

tem because: (1) forbidding lockdown inmates from

mixing with general population inmates in law libraries

is necessary to ensure inmate safety and prevent the ex-

change of contraband; and (2) transporting lockdown

inmates, who must remain in restraints and be accom-

panied by two-guard escorts, from their cells to the law

library would misspend limited State resources and create

a logistical nightmare. See supra at 6.

The district court concluded that the paging system

was inadequate and ordered ADOC to provide “prisoners

in all housing areas and custody levels” with “regular

and comparable visits to the law library,” unless the in-

mate had a “documented inability to use the law library

without creating a threat to safety or security.” Pet. App.

B at 61a. In affirming this requirement, the Ninth Circuit

emphasized that “legal research often requires browsing

through various materials in search of inspiration.” Pet

App. A at 7a, 43 F.3d at 1267 (quoting Toussaint \

McCarthy, 801 F.2d 1080, 1109 (9th Cir. 1986), cert.

denied, 481 U.S. 1069 (1987) ).

As an initial matter, the district court’s implicit con-

clusion that prisons are constitutionally compelled to

allow inmates to “browse” the shelves of law libraries

cannot be sustained. Many public and private libraries,

including the Library of Congress, do not allow patrons

to have access to the stacks. See DeMallory v. Cullen,

855 F.2d 442, 451 (7th Cir. 1988) (Easterbrook, J.,

dissenting). Since ordinary citizens must abide by the

“paging” systems used in such libraries, greater access for

inmates cannot be constitutionally required under Bounds.

Moreover, the injunction relies on a purely fictional

view of legal research as conducted by attorneys, much

less as conducted by inmates. Law libraries primarily

contain case reporters, which are virtually useless unless

one knows—in advance—the citation sought. The no-

tion that anyone could conduct meaningful research by

wandering aimlessly down the aisles of a law library “in

search of inspiration” is misplaced. The odds of stum-

bling onto dispositive opinions while thumbing through

hundreds of volumes of 1500-page reporters are extremely

remote.

In any event, ADOC’s reasons for denying lockdown

prisoners physical access to the libraries are reasonably

related to its legitimate penological interests under all

four of the factors that this Court identified in Turner.

First, there is clearly a rational connection between the

prison policy and the prison’s interests in preserving secu-

rity, avoiding logistical problems and allocating resources

efficiently. The purpose of placing high-risk inmates in

“lockdown” facilities is to segregate them from other in-

mates and to increase their level of confinement. Once

inmates have been “locked down,” it is clearly rational

to have a paging system by which books are brought to

them rather than allowing inmates to go to the prison

library

Second, the paging system provides an “alternative

means” for inmates to exercise their right of access.

Segregated inmates may request law books through

ADOC sstaff, inmate legal assistants, or inmate law

clerks. Books are then retrieved for the lockdown inmate

according to the inmate’s request, whether it be general

or specific.”

Third, forcing ADOC officials to allow segregated in-

mates physical access to the library would unquestionably

impose an undue burden on guards, other inmates, and

the allocation of prison resources. Prison officials need

not accommodate a constitutional right at the expense of

“significantly less liberty and safety for everyone else,

guards and prisoners alike.” Turner, 482 U.S. at 92.

Rather, courts are encouraged to defer to the informed

discretion of corrections officials. Jd. at 90. Requiring

ADOC to transport high-risk inmates to the library under

escort, where those inmates could pose a security risk to

general-population inmates, forces ADOC to devote its

resources to library research excursions that can, and

should, be satisfied through other avenues reasonably

chosen by prison officials.

26 Testimony from three lockdown inmates conflicted with that

of ADOC staff as to whether inmates are required to provide

exact citations for the books they request and how many books

they are permitted to keep in their cells. Pet. App. B at 22a. Even

accepting the inmates’ testimony, however, the problems experi-

enced by only three inmates would justify at most a narrow injunc-

tion requiring ADOC officials to retrieve law books for lockdown

inmates when the request is of a general nature. The testimony

of three inmates concerning their persona] accounts of uncoopera-

tive staff members did not warrant the district court’s conclusion

that there existed a systemic, widespread practice within the

State. That the extensive legal assistant training program pre-

sumably was built upon the episodic experience of these three

inmates similarly displays little deference to prison officials or

respect for the principle that the injunction must be narrowly

tailored to cure the specific constitutional violation.

Turner’s fourth factor—whether there are “ready alter-

natives” such that the chosen regulation is an “exag-

gerated response” to prison concerns—similarly supports

the reasonableness of the policy. This factor requires

prison officials to show only that their rejection of a

less restrictive alternative was based on “reasonably

founded fears that it will lead to greater harm.” Thorn-

burgh, 490 U.S. at 419. ADOC’s use of a paging system

for lockdown inmates certainly is not an “exaggerated

response” to prison officials’ legitimate penological inter-

ests in safety and the economical use of prison resources.

Prison officials made the reasonable administrative judg-

ment, to which the district court should have deferred,

that less restrictive policies for lockdown inmates posed

a legitimate threat of greater harm in tle volatile prison

setting.

The only exception to physical access permitted by the

courts below—where ADOC officials have documented

a particular inmate’s “inability to use the law library

without creating a threat to safety or security”—inter-

feres with the prison officials’ wide discretion to antici-

pate and avoid harm before it occurs. See Thornburgh,

490 U.S. at 417 (upholding prison regulations designed

to avoid situations that “although not necessarily ‘likely’

to lead to violence, [were] determined by the warden to

create an intolerable risk of disorder”). Both Thorn-

burgh, 490 U.S. at 418, and O’Lone v. Estate of Shabazz,

482 U.S. 342, 353 (1987), reject the notion that prison

officials must wait for actual harm to occur before taking

action. Furthermore, the inmates in this case cannot

satisfy their burden of pointing to an alternative that

accommodates their rights at de minimis costs to security

interests. Turner, 482 U.S. at 91.

4. Legal assistance. In all ADOC prison facilities,

volunteer inmate legal assistants are available to assist

other inmates in preparing their pleadings. In addition to

the formal legal assistant training program in the Central

;

Unit in Florence, and the program for inmate legal

assistants conducted at the Tucson complex in July

1990, many legal assistants have completed or are cur-

rently taking paralegal courses. Pet. App. B at 3la;

R.T. 1/7/92 at 186-187.

For two reasons, the lower courts erred when ordering

ADOC to implement the legal assistant training program.

First, the Constitution does not require States to do any-

thing more than remove the barriers to court access that

imprisonment erected. Hooks v. Wainwright, 775 F.2d

1433 (llth Cir. 1985), cert. denied, 479 U.S. 913

(1986). Here, the barriers to court access erected by

imprisonment were removed by making the law libraries

available to all inmates. That certain ADOC inmates are

illiterate or do not speak English does not place them

on any different footing than that occupied by persons

who are not convicted felons. Moreover, even the case

relied on by the district court, Cruz v. Hauck, 627 F.2d

710 (Sth Cir. 1980), stated that “[l]ibrary-use assistance

[by writ writers] might solve the problem presented.” /d.

at 721.

Second, Respondents failed to offer evidence that any

inmate was prevented from exercising his right of access

to the courts by virtue of insufficiently trained legal as-

sistants. Therefore, the injunction’s requirement that

Petitioners hire lawyers, paralegals or law students to

teach a thirty to forty-hour training course at each law

library every six months ad infinitum, is clearly improper.

5. Functionally illiterate inmates. Illiterate and non-

English speaking inmates have access to Arizona’s fully

stocked prison libraries, plus help from legal assistants.

This fulfills constitutional requirements because these in-

mates are better off than their non-incarcerated counter-

parts. Accordingly, the injunction’s requirement that Ari-

zona furnish trained, bilingual legal assistants to all

inmates is yet another attempt to achieve optimal access.

rather than “reasonably adequate” access.

6. Access to counsel. ADOC’s policy states that most

communications between inmates and their attorneys

should be by written correspondence or in-person visits.

Attorney-client telephone calls are administratively bur-

densome because inmates must be taken out of their cells

to use a limited number of phones. Accordingly, inmates

must request permission to make phone calls to their

attorneys and must provide a reason why written cor-

respondence or a visit will not suffice.

The injunction requires that each and every inmate,

regardless of custody status or need, be allowed “a

weekly minimum of three twenty-minute calls to (1) an

attorney, (2) a designated attorney representative, or (3)

a legal organization.” Pet. App. C at 76a (emphasis

added). ADOC must purchase a sufficient number of

phones so that these calls can be made during regular

business hours. /d.

This burdensome requirement is unjustified. The dis-

trict court did not find that ADOC’s current policy de-

nies inmates reasonable contact with existing or potential

attorneys, much less that any inmate has suffered an

actual injury to his due process or equal protection rights.

Accordingly, the district court had no authority to grant

any relief. Even if there were some basis for relief, how-

ever, the mandatory minimum of three phone calls per

inmate per week is not a narrowly tailored remedy. This

blanket policy allows phone calls on demand for all in-

mates, even when they have no pending deadline—or

even any pending litigation—and in circumstances in

which communication by letter or in-person is available

and appropriate.

Affirmance of this judicially-imposed policy will create

a huge administrative burden, particularly with respect to

lockdown inmates, who must be transported to and from

their cells with a two-guard escort. Because there was

no showing that the current practice failed to meet con-

stitutional requirements, this aspect of the injunction is

another improper attempt to ensure optimal access.

7. Photocopying. The district court erroneously con-

cluded that ADOC needed a policy to assure that legal

documents to be photocopied were not read by other

inmates or staff. Pet. App. B at 47a. The injunction

requires that Petitioners post a bulletin in the law libraries

warning staff members not to read legal materials being

copied. Pet. App. C at 77a. In addition, the injunction

goes so far as to set forth the amount per page Petitioners

can charge inmates for copies.

The injunction was ordered despite the fact that ADOC

already had in place a policy prohibiting library staff from

reading legal materials. In addition, Respondents pre-

sented evidence from only one inmate that prison staff had

supposedly read legal materials. Most importantly, Re-

spondents never contended that the manner in which legal

materials were photocopied deprived any inmate of his

right of access to the court. Therefore, the lower courts

clearly erred in finding a constitutional violation as a

result of this policy.

* * * *

Operating a prison system is the business of State offi-

cials. State administrators have wide discretion to run

their prisons so long as they do not run afoul of the

minimal requirements imposed by the Constitution. State

administrators are precluded from imposing arbitrary bar-

riers to an inmate’s exercise of the right to file papers in

court or to allow the fact of imprisonment to serve as an

obstacle to filing a judicial claim that would not be faced

by an ordinary citizen. But these are limited restrictions

on the State, and the findings and record cannot justify

the extraordinary and system-wide remedy imposed by the

district court here, which ignores the State’s legitimate

penological interests, violates core federalism values, and

undermines separation of powers principles. In a mis-

guided effort to “optimize” each inmate’s ability to litigate

against the State, the district court has arrogated to itself

the authority to exercise the State legislature’s spending

power. But the “dream” that animated the district court

to play executive official, unless reversed, will be the

State’s “nightmare” in attempting to balance prison se-

curity, legitimate cost concerns and the minute commands

of a federal court. Not only does the Fourteenth Amend-

ment not require this distortion of institutional roles, but

Article III affirmatively condemns it.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

REX E. LEE DANIEL P. STRUCK

CARTER G. PHILLIPS Counsel of Record

MARK D. HOPSON KATHLEEN L. WIENEKE

J ACQUELINE GERSON DAVID C. LEWIS

SIDLEY & AUSTIN EILEEN J. DENNIS

1722 Eye Street, N.W. JONES, SKELTON & HOCHULI

Washington, D.C. 20006 2901 N. Central Avenue

(202) 736-8000 Suite 800

GRANT Woops Phoenix, Arizona 85012

Attorney General (602) 263-1700

C. Tim DELANEY Attorneys for Petitioners

REBECCA WHITE BERCH

THOMAS J. DENNIS

ARIZONA ATTORNEY

GENERAL’S OFFICE

1275 W. Washington

Phoenix, Arizona 85007

(602) 542-3333

APPENDIX

APPENDIX A

No. of “Muecke Library Hours Shelf Lega! Ass'ts

Inmates List” Browsing Law Clerks

Books Permitted Correc.Sec.Off.

ASPC-FLORENCE

omen’'s Division 190 yy MF BA-3.30P TW 10A-6P. Th 8A-3P (38 hours/week Yes 1CSO. 2+LC

5-LA

South Un 409 x T-Sat 7A-3P (40 hours/week) No §9-LA 3-LC

— 1i-CSO

celibiock Six (CB-6 180 ig M-Su 7A-10P (105 hours/week) No 3-L. A. 4-L.C.°*

1i-C SO

North 391 x" M F.8A-3. 30P. T-Th 10 30a-6:30P (31 hours/week Yes 4.4: 2

1-CSO

Pica VW Came use Nort see above 203

=ast Unit 4° _ M-F 10A-6P (Closed 3-4 for Count) (35 hours/week) Yes 7-LA, 2-L.C

\ 1-CS$.O

Ry 1g 800 x M-F:7A-8 15P curs/week) Yes 5-. C. 11-L.A

— - 2C SO

Specia! Management Unit (SMU) 90 |-3's x’ (l-3's) T-SA 6P-8P No 11-LA.. 3-L.C

822 |-5's (1-5's) M 7A-3P. T-F 7A-SP Sa 1P-9P (82 hours/week 1-CSO

ASPC-PHOENIX

Alhambra Reception Center 192 = M-F 7 30A-8 30P: Sa Sun 8 A-10P (93 hours/week) No 2-LA:2-L.C

Fiamenco Menta! Health Unit use Alhambra -- see above 48

|_Aspen DVV! Center use Alhambra -- see above 248

Arizona Center for Women (ACW 350 x’ M-F 1P-SP (40 hours/week) Yes 2-LC

Giobe 120 x Yes

| ASPC-DOUGLAS

Gila Unit 632 x’ M-F: 12P-3 30P 5P-9P Sat Sun 8A-10 30A, 12 30P-3 30P Yes 3-L.C

(48 5 hours/week) 1-Librarian

Maricopa use Gila -- see above 129

Mohave Unit 872 _ M-F:-1P-3 30P and 5P-9P. Sa Sun 8A-10°30A, 12 30P-3 30P Yes A. oe.”

(43 5 hours/week) 1-Libranan

Papago DW! use Monave see above 208

iz ochise Complex Detention Unit use Mohave -- see above 66

Legal Ass'ts

Law Clerks

ASPC-PERRYVILLE

Santa Cruz Unit

M-Th:1P-9P: F:8A-4P (40 hours/week)

No 2-L.C.;1-CS0.**

CDU use Santa Cruz ~ see above

San Juan Unit

M-Th:1P-9P; F:8A-4P (40 hours/week)

San Pedro

M-F:7A-11A,; 2P-4P 6P-8P (same hours on Sat and Sun) (if

officer available) (40 hours/week)

No 2-L.

Santa Maria Unit

M-F :8A-8P (60 hours/week)

ASPC-TUCSON

Cimarron Unit

61 hours/week

Echo

76 hours/week

Rincon

80 hours/week

Santa Rita

M-Sa:8:30A-3P, T,Th:5P-6:30P (42 hours/week)

Yes 7-L.A.; 1-Librarian

CDU use Santa Rita - see above

ASPC-WINSLOW

Coronado 600 x* M,T,W.F: 1P-4P and 4:30-9P; Th:1P-3:30P and 6:30P-9P: No 4-LA.**; 2-L.C.

Sat:9A-11A (37hours/week) 1-Librarian

Kaibab 716 ) M-F:7A-9P (60 hours/week) No 5-LA.: 3-L.C.**

1-Librarian

CDU use Kaibab -~- see above

ASPC-SAFFORD

Graham

Tonto

Yes

ASPC-YUMA

243

Yes

° Law libranes which exceed volumes contained on the Muecke List

ys Spanish speaking law library

Respondents admitted

personnel availabie

to the sufficiency of the law ‘ibrary collections at all ASPC Tucson units

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.