Amicus Curiae Brief — Lewis v. Casey

Supreme Court, U.S.

—~ FILED

(4D

No. 94-1511 AUG 14 1995

ta Ur tee YeensA

In The

Supreme Court of the United States

October Term, 1995

+

SAMUEL LEWIS, et al.,

Petitioners,

FLETCHER CASEY, JR., et al.,

Respondents.

«

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF FOR CALIFORNIA AND OTHER STATES AS

AMICI CURIAE SUPPORTING THE PETITIONERS

+

Danie. E. LUNGREN,

Attorney General

Peter J. SIGGINS,

Sr. Asst. Atty. Genl.

Morris LENK,

Sr. Supv. Atty. Genl.

Kari S. MAYER

Bruce M. SLavin*

Deputy Attorneys General

50 Fremont Street, Suite 300

San Francisco, CA 94105

(415) 356-6048

Attorneys for Amici States

*Counsel of Record

[Additional States Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

‘BEST AVAILABLE COPY

eet cle ee te ee —

ALASKA

Bruce M. BoTeLHo

Attorney General of the

State of Alaska

Office of the

Attorney General

123 4th Street, 6th Floor

Juneau, AK 99801

Phone: 907/465-3600

CONNECTICUT

RicHARD BLUMENTHAI

Attorney General of the

State of Connecticut

Office of the

Attorney General

55 Elm Street

Hartford, CT 06106

Phone: 203/566-2026

DELAWARE

M. JANE Brapy

Attorney General of the

State of Delaware

Department of Justice

State Office Building

820 North French Street

Wilmington, DE 19801

Phone: 302/577-2500

DISTRICT OF COLUMBIA

GARLAND PINKSTON, JR.

Acting Corporation Counsel

District of Columbia

One Judiciary Square

441 4th Street, N.W.

Washington, D.C.

20001-2700

Phone: 202/727-6252

FLORIDA

Rosert A. BUTTERWORTH

Attorney General of the

State of Florida

Office of the

Attorney General

The Capitol, PL 01

Tallahassee, FL 32399-1050

Phone: 904/487-1963

GEORGIA

MicHAEL J. Bowers

Attorney General of the

State of Georgia

40 Capitol Sq. S.W.

Atlanta, GA 30334-1300

Phone: 404/656-4585

HAWAII

Rosert A. Marks

Attorney General of the

State of Hawaii

Office of the

Attorney General

425 Queen Street

Honolulu, HI 96813

Phone: 808/586-1282

IDAHO

ALAN G. LANCE

Attorney General of the

State of Idaho

Office of the

Attorney General

Statehouse

Boise, ID 83720-1000

Phone: 208/334-2400

ILLINOIS

James E. Ryan

Attorney General of the

State of Illinois

Office of the

Attorney General

100 W. Randolph Street

12th Floor

Chicago, IL 60601

Phone: 312/814-3312

INDIANA

PAMELA CARTER

Attorney General of the

State of Indiana

402 W. Washington,

5th Floor

Indianapolis, IN 46204

Phone: 317/232-6201

KANSAS

Carta J. STOVALL

Attorney General of the

State of Kansas

Office of the

Attorney General

301 S.W. 10th Avenue

Topeka, KS 66612-1597

Phone: 913/296-2215

MARYLAND

J. JosepH CurRAN, Jr.

Attorney General of the

State of Maryland

Office of the

Attorney General

200 Saint Paul Place

Baltimore, MD 21202-2021

Phone: 410/576-6300

MASSACHUSETTS

Scott HARSHBARGER

Attorney General of the

Commonwealth of

Massachusetts

Office of the

Attorney General

One Ashburton Place

Boston, MA 02108-1698

Phone: 617/727-2200

MICHIGAN

FRANK J. KELLY

Attorney General of the

State of Michigan

Office of the

Attorney General

P.O. Box 30212

525 West Ottawa Street

Lansing, MI 48909-0212

Phone: 517/373-1110

MINNESOTA

Husert H. Humpnurey III

Attorney General of the

State of Minnesota

Office of the

Attorney General

State Capitol, Suite 102

St. Paul, MN 55155

Phone: 612/296-6196

MISSOURI

JeReMIAH W. (Jay) Nixon

Attorney General of the

State of Missouri

Office of the

Attorney General

P.O. Box 899

Jefferson City, MO 65102

Phone: 314/751-3321

MONTANA

Joe Mazurek

Attorney General of the

State of Montana

Office of the

Attorney General

Justice Building

215 North Sanders

Helena, MT 59620-1401

Phone: 406/444-2026

NEBRASKA

Don STENBERG

Attorney General of the

State of Nebraska

Office of the

Attorney General

2115 State Capitol

Lincoln, NE 68509

Phone: 402/471-2682

NEVADA

Frankie Suet Det Papa

Attorney General of the

State of Nevada

Office of the

Attorney General

Old Supreme Court

Building

198 South Carson

Carson City, NV 89710

Phone: 702/687-4170

NEW HAMPSHIRE

Jerrrey R. Howarp

Attorney General of the

State of New Hampshire

Office of the

Attorney General

33 Capitol Street

Concord, NH 03301

Phone: 603/271-3655

NEW MEXICO

Tom UDALL

Attorney General of the

State of New Mexico

Office of the

Attorney General

P. O. Drawer 1508

Santa Fe, NM 87504-1508

Phone: 505/827-6000

NEW YORK

Dennis C. Vacco

Attorney General of the

State of New York

Department of Law

The Capitol

Albany, NY 12224

Phone: 518/474-8101

OHIO

Betry MONTGOMERY

Attorney General of the

State of Ohio

Office of the

Attorney General

State Office Tower

30 East Broad Street

Columbus, OH 43266

Phone: 614/466-3376

OREGON

THEODORE R. KULONGOSKI

Attorney General of the

State of Oregon

100 Justice Building

Salem, OR 97310

Phone: 503/378-4402

PENNSYLVANIA

Wa ter W. COHEN

Acting Attorney General of

the State of Pennsylvania

Office of the

Attorney General

16th Floor

Strawberry Square

Harrisburg, PA 17120

Phone: (717) 787-3391

RHODE ISLAND

Jerrrey B. Pine

Attorney General of the

State of Rhode Island

72 Pine Street

Providence, RI 02903

Phone: 401/274-4400

TENNESSEE

CHARLES W. BuRSON

Attorney General

and Reporter

Executive Offices

Office of Attorney General

and Reporter

500 Charlotte Avenue,

Suite 114

Nashville, TN 37243-0497

Phone: 615/741-3226

UTAH

JAN GRAHAM

Attorney General of the

State of Utah

Office of the

Attorney General

236 State Capitol

Salt Lake City, UT 84114

Phone: 801/538-1326

VIRGINIA

James S. Gr_more, III

Attorney General of the

Commonwealth of

Virginia

Office of the

Attorney General

900 E. Main Street

Richmond, VA 23219

Phone: 804/786-5630

WASHINGTON

CuristinE O. GREGOIRE

Attorney General of the

State of Washington

Office of the

Attorney General

P.O. Box 4100

Olympic, WA 98504-0100

Phone: 360/753-6245

WISCONSIN

James E. Doyte

Attorney General of

State of Wisconsin

Office of the

Attorney General

114 E. State Capitol

P.O. Box 7857

Madison, WI 53707-7857

Phone: 608/266-1221

WYOMING

WiiuaM U. Hi

Attorney General of the

State of Wyoming

Office of the

Attorney General

123 State Capitol

Cheyenne, WY 82002

Phone: 307/777-7844

ee

QUESTION PRESENTED

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

courts” case, which greatly expands the State of Ari-

zona’s financial and administrative burdens and shifts

much of the management of the state’s prison system to

the federal judiciary, exceed the constitutional require-

ments set forth in Bounds v. Smith, 430 U.S. 817 (1977)?

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .....ccccccccvccccccnccces i

INTEREST OF THE AMICI CURIAE ............... 1

SUMMARY OF ARGUMENT................----055 2

BE, £5 do kn KGsnoaconan ids aubiedseenehees 3

NONE OF THE REQUIREMENTS AFFIRMED BY

THE COURT OF APPEALS IS NECESSARY TO

PROTECT PRISONERS’ ACCESS TO COURTS ...

A. The Proper Standard of Review .............

B. Limitations on the Duty to Assist Prisoners in

the Filing of Habeas Corpus and Civil Rights

Actions and the Scope of Injunctive Relief ...

C. The Limited Scope and Duration of The Duty

OD FTE so bcocevdsvecvdwsassecseconvesnndews

D. Specific Injunctive Relief ....................

CERI bod kcdsctcavancas Siu ch dedewewen rene

iii

TABLE OF AUTHORITIES

Cases

Ballard v. Spradely, 557 F.2d 476 (5th Cir. 1977)..... 12

Bell v. Wolfish, 441 U.S. 520 (1979).............0.0.... 4

Bounds v. Smith, 430 U.S. 817 (1977)............ passim

Casey v. Lewis, 43 F.3d 1261 (9th Cir.

PR fa chdeeenedhi en taawsnakaweesas ees 1, 8, 9, 10, 11

Cornett v. Donovan, 51 F.3d 894 (9th Cir. 1995) ....7, 8

Haines v. Kerner, 404 U.S. 519 (1972) ................ Y)

Holt v. Pitts, 619 F.2d 558 (6th Cir. 1980)............ 12

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

1985) cert. denied, 479 U.S. 913 (1986)......... 10, 13

Johnson v. Avery, 393 U.S. 483 (1969) ................ 7

Lindquist v. Idaho State Bd. of Corrections, 776

Ey Ne SE AE 645005002 bss son conneeeseces 13

Matter of Warden of Wisconsin State Prison, 541

i Ef fo S| rs rrr 12

McKinney v. Boyle, 447 F.2d 1091 (9th Cir. 1971).... 12

Milliken v. Bradley, 433 U.S. 267 (1977) .............. 4

Missouri v. Jenkins, __ U.S. __, 115 S.Ct. 2038

EG Wis eBkias BA 4S hNS Kae enbevecevrsernenssaases 3, 4

Murray v. Giarratano, 492 U.S. 1 (1989).............. 6

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

1986) cert. denied, 481 U.S. 1069 (1987)......... 4, 11

iv

TABLE OF AUTHORITIES —- Continued

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

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

INTEREST OF THE AMICI CURIAE

This brief in support of the Petitioners, prison offi-

cials of the Arizona Department of Corrections, is submit-

ted on behalf of the State of California and the other

signature States (“the Amici States”) through their Attor-

neys General pursuant to Supreme Court Rule 37.5. The

Amici States have an important interest in this case

because they all operate correctional facilities in which

they must assist the persons whom they incarcerate in

obtaining access to courts.

The fundamental constitutional right at issue in this

case is the right of access to courts. “[T]he fundamental

right of access to courts requires prison authorities to

assist inmates in the preparation and filing of meaningful

legal papers by providing prisoners with adequate law

libraries or adequate assistance from persons trained in

the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). Under

Bounds, the constitutional right of access requires a state

to provide a law library or legal assistance only during

the pleading stage of a habeas or civil rights action.

Seizing upon the term “meaningful,” and ignoring

the limited scope and duration of prison authorities’ duty

to assist prisoners, the Court of Appeals for the Ninth

Circuit has affirmed an order of the District Court of

Arizona which dramatically expands the physical access

to law libraries that states must allow prisoners, the legal

materials they must be provided, and the legal assistance

which must be available to all prisoners, even prisoners

who have physical access to a law library. Casey v. Lewis,

43 F.3d 1261 (9th Cir. 1994).

Nothing in the order aftirmed by the Ninth Circuit is

necessary to remedy any violation of the constitutional

right described in Bounds. The Amici States seek an opin-

ion from this Court which clarifies the limits on their

duties under the Constitution so that lower courts might

avoid immersion in the details of prison administration

under the guise of providing “meaningful” access to

courts.

SUMMARY OF ARGUMENT

Pursuant to this Court’s decision in Bounds v. Smith,

430 U.S. at 825-828, a constitutional right of access to

courts requires a state to provide legal materials or legal

assistance only during the pleading stage of a habeas

corpus or civil rights action. The court of appeals disre-

garded established limitations on the scope of the consti-

tutional right as well as limitations on the scope of relief

which may be imposed to protect the right. The lower

courts in this case disregarded the limited nature of the

duty owed by state officials. This disregard infects each

provision of injunctive relief crdered and affirmed.

Indeed, the error is compounded because the decision

below would impose both excessive library access and

excessive legal assistance.

The scope of injunctive relief must be no broader

than necessary to remedy a constitutional violation. The

Ninth Circuit did not heed this standard when reviewing

the injunctive relief ordered by the district court. Instead

it affirmed the injunctive relief upon findings that the

remedies ordered by the district court were merely “rea-

sonable” or “not unreasonable.” Therefore it failed to

constrain itself to consider whether the relief ordered was

necessary to protect the constitutional right described

and circumscribed in Bounds. This led the court of

appeals to affirm an order that was both too expansive in

scope and so specific that it results in micro-management

of the prisons. Had the court of appeals reviewed the

injunction under the proper standard, it would have been

compelled to reject it in its entirety.

Federal courts are limited in their power to order

injunctive relief against the states to those remedies nec-

essary to cure a constitutional violation. This Court has

stressed the deference owed to prison officials in the

operation and management of prisons. Moreover, the

duty of prison officials to assist inmates in the prepara-

tion and filing of petitions and complaints is at best

loosely anchored in the Constitution. These factors, alone

and in combination, counsel in favor of great restraint

when a federal court reviews the adequacy of the law

library or legal assistance provided by state prison offi-

cials or imposes any remedy.

S

ARGUMENT

NONE OF THE REQUIREMENTS AFFIRMED BY THE

COURT OF APPEALS IS NECESSARY TO PROTECT

PRISONERS’ ACCESS TO COURTS

A. The Proper Standard of Review

This Court recently reaffirmed “the bedrock principle

that ‘federal court decrees exceed appropriate limits if

they are aimed at eliminating a condition that does not

violate the Constitution or does not flow from such a

violation.’ ” Missouri v. Jenkins, __ US. __, 115 S.Ct.

2038, 2054 (1995), quoting Milliken v. Bradley, 433 U.S. 267,

282 (1977). It also “emphasized that ‘federal courts in

devising a remedy must take into account the interests of

state and local authorities in managing their own affairs

consistent with the Constitution.’ [citation omitted].” Id.

Moreover, “[i]njunctive relief must be no broader than

necessary to remedy the constitutional violation.” Tous-

saint v. McCarthy, 801 F.2d 1080, 1086 (9th Cir. 1986), cert.

denied, 481 U.S. 1069 (1987), citing Milliken, 433 U.S. at

280. These admonitions have been too often forgotten by

the federal courts in the use of “structural injunctions” to

manage state prisons. Jenkins, 115 S.Ct. at 2067 (Thomas,

J., conc.) Perhaps nowhere is the interest of the states

greater and the deference to be given to prison officials

by the federal courts stronger than in the administration

of this nation’s prisons. Turner v. Safley, 482 U.S. 78, 89

(1987); Bell v. Wolfish, 441 U.S. 520, 550 (1979).

A critically important point overlooked by the court

of appeals is that the federal courts may only evaluate the

reasonableness of a prison regulation if it “impinges on

inmates’ constitutional rights. ...” Turner, 482 U.S. at 89.

The amici states agree with petitioner that if any of Ari-

zona’s regulations or policies impinge upon the pris-

oners’ right of access to courts, then evaluation under the

deferential standard set forth in Turner is appropriate.

Since amici contend, however, that all of the policies and

procedures in this case are constitutional under Bounds,

the Court need not engage in the analysis required when

prison officials infringe upon an inmate’s constitutional

rights.

After giving token recognition to the above tests of

constitutionality and necessity, the court of appeals actu-

ally applied tests of judicial discretion and reasonable-

ness. This is fundamental error in two significant ways.

First, because Arizona was in compliance with the consti-

tutional demands as set forth in Bounds, there was no

need to evaluate the reasonableness of any infringement

of prisoners’ constitutional rights. Second, assuming

arguendo that any policy or procedure in Arizona may

have impinged on a constitutional right, Turner instructs

that the federal courts are to evaluate the reasonableness

of the prison officials’ actions. Rather than following

Turner, the court of appeals gave no deference to the

judgment of prison officials, but instead evaluated only

the reasonableness of the district court’s remedies.

In essence, the court of appeals erroneously took far

too broad a view of the equitable powers of a federal

court. As set forth below, it read Bounds far too expan-

sively to find constitutional violations where none exis-

ted. It then evaluated the relief ordered by the district

court either under an improper standard or under no

standard at all. This led the court to affirm relief which

was beyond the jurisdiction of the federal courts.

In reviewing the additional legal materials that

prison officials were ordered to provide and the required

training for library staff, the Ninth Circuit found either

that the relief was “reasonable” or “not unreasonable.”

Casey, 43 F.3d at 1270-71. It affirmed the extension of

hours of operation of the law libraries based on its find-

ing that the required hours did not “constitute ‘unlimited

access.’ [citation omitted].” Id. at 1271. It required the

showing of training video tapes on the bases that these

tapes would help make the library accessible to inmates

and that defendants failed to show any hardship from

making the tapes available. Id. It upheld the requirement

that prisoners be allowed at least three twenty-minute

telephone calls per week to their attorneys because the

Arizona Department of Corrections could implement the

measure with little cost and it could potentially save staff

time otherwise spent on screening out non-emergency

calls. Id. at 1272. In no instance did the Ninth Circuit ever

find that the relief was necessary to remedy a constitu-

tional violation. Had the Ninth Circuit reviewed the

injunctive relief ordered by the district court under this

standard it would have been compelled to reverse each

and every part of the injunction.

B. Limitations on the Duty to Assist Prisoners in

the Filing of Habeas Corpus and Civil Rights

Actions and the Scope of Injunctive Relief

For at least two reasons, this Court should speak

definitively to limit Bounds to its original terms: First, the

constitutional underpinnings of the Bounds duty to assist

are questionable. See Bounds, 430 U.S. at 834-835 (Burger,

C.J., dissenting), 836-837 (Stewart, J., dissenting), 837-841

(Rehnquist, J., dissenting); see also, Murray v. Giarratano,

492 US. 1, 11 and n.6 (1989). Second, the federal courts

must tread very carefully in ordering changes in prison

operations to accommodate the right of access to courts.

Prison officials have no constitutional duty under

Bounds to provide legal assistance for any purpose other

than to initiate a civil rights or habeas corpus action.

Accordingly this Court should clarify that not only did

the injunctive relief ordered and affirmed in this case

exceed constitutional requirements, but Arizona already

exceeded the requirements of Bounds in every regard

prior to the entry of injunctive relief.

If prison officials provide inmates with legal mate-

rials or legal assistance adequate for the filing of a peti-

tion or complaint, no constitutional violation exists. In

the absence of a constitutional violation, no remedy may

be imposed against the prison officials. The Constitution

does not require prison officials to provide inmates with

well-stocked law libraries, direct physical access to

libraries, countless hours to draft factual pleadings in a

library or the assistance of trained legal personnel if

administrators choose to provide access to library mate-

rials. Accordingly, the decision of the Ninth Circuit

should be reversed.

C. The Limited Scope and Duration of The Duty to

Assist

Under Bounds, “the constitutional right of access

requires a state to provide a law library or legal assis-

tance only during the pleading stage of a habeas or civil

rights action.” Cornett v. Donovan, 51 F.3d 894, 898 (9th

Cir. 1995). This Court’s opinion in Bounds states repeat-

edly that the right of access to courts encompasses only

the filing of habeas corpus petitions and civil rights com-

plaints. See Bounds v. Smith, 430 U.S. at 823 (discussing

holding in Johnson v. Avery, 393 U.S. 483, 489 (1969) that

ban on inmate assistance effectively prevented some pris-

oners from preparing petitions to challenge legality of

their confinement and extension of that holding to civil

rights actions in Wolff v. McDonnell, 418 U.S. 539, 577-580

(1974)); 825 (“inquiry is rather whether law libraries or

other forms of legal assistance are needed to give pris-

oners a reasonably adequate opportunity to present

claimed violations of fundamental constitutional rights to

the courts” and discussion of basic requirements for filing

of habeas corpus petition or civil rights complaint); 827

(“in this case, we are concerned in large part with origi-

nal actions seeking new trials, release from confinement,

or vindication of fundamental civil rights” and emphasiz-

ing that “habeas corpus and civil rights actions are of

‘fundamental importance . . . in our constitutional

scheme ... ’”); 828 n.17 (“our main concern here is

‘protecting the ability of an inmate to prepare a petition

or complaint.’ ”). Thus, this Court has only compelled the

states to provide assistance to prisoners in two limited

areas of law - civil rights complaints and habeas corpus

petitions —- and it has limited the duration for which

assistance must be provided.

While the narrow scope of the right of access now

seems clear, its practical meaning has been anything but

clear in the lower courts. Indeed, the decision of the

Ninth Circuit in Cornett cites the opinion in the present

case as consistent with the rule that access is required

only for the filing of a habeas or civil rights action.

Cornett, 51 F.3d at 900, citing Casey, 43 F.3d at 1268. In

fact, however, the court of appeals in this case affirmed

an injunction which both implicitly and explicitly pre-

sumes a much broader scope of the duty to assist. E.g.,

Casey, 43 F.3d at 1277 (injunction requires videotape train-

ing in relevant tort and civil law, including immigration

and family issues). This and other clear errors would not

wD oe

have occurred had the court of appeals obeyed the limits

set by this Court in Bounds.

Both habeas corpus and civil rights pleadings are

essentially fact based. Bounds, 430 U.S. at 825; see, Rules

Foll. § 2254. Prisoner pro se papers are liberally construed.

Haines v. Kerner, 404 U.S. 519, 520 (1972). Although the

liberal standards for prisoner pleadings do not obviate

the need to provide prisoners with law libraries or legal

assistance, Bounds, 430 U.S. at 825-826, these standards

should nevertheless be considered to confine the scope of

what duty prison officials owe prisoners as a matter of

constitutional necessity.

D. Specific Injunctive Relief

Reviewing the scope of the injunctive relief affirmed

by the court of appeals, it is clear that it is excessive in

every regard. The most basic error which pervades the

entire injunction is the lower courts’ conjunction of access

to a law library with legal assistance. This is flatly incon-

sistent with this Court’s holding “that the fundamental

constitutional right of access to courts requires prison

officials to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with ade-

quate law libraries or adequate assistance from persons

trained in the law,” Bounds, 430 U.S. 828 (emphasis

added). The court of appeals’ holding that meaningful

access requires both adequate law libraries and legal

assistance, Casey, 43 F.2d at 1270, must be reversed.!

1 To the extent that the court of appeals based its deviation

from this Court’s holding in Bounds on its finding that some

10

The Ninth Circuit also erred when it affirmed the

order requiring Arizona to provide regional reporters and

digests in prison law libraries. Arizona already provides

a library far in excess of that required for an inmate to file

a civil rights or habeas corpus action. As noted by peti-

tioner, each library is stocked at a minimum with the

following materials: United States Code Annotated,

Supreme Court Reporter, Federal Reporter (Second), Fed-

eral Supplements, Shepard’s U.S. Citations, Shepard’s

Federal Citations, Local Rules for the Federal District

Court, Modern Federal Practice Digest, Federal Practice

Digest (Second), Arizona Code Annotated, Arizona

Reports, Shepard’s Arizona Citations, Arizona Appeals

Reports, Arizona Rules of Evidence (Udall), ADC Policy

Manual, 108 Institutional Management Proceedings, Fed-

eral Practice and Procedures (Wright), Corpus Juris

Secundum, and Arizona Digests. Pet. App. B at 32a-33a.

Petitioner noted that some of the libraries also included

prisoner self-help manuals. Pet. App. B. at 34a.

prisoners are poorly educated or do not speak English, Casey, 43

F.3d at 1270, these facts are so obvious that “[i]t presses credu-

lity to contend” that this Court’s decision in Bounds would have

been different if it had recognized that some inmates might have

difficulty using a law library. Hooks v. Wainwright, 775 F.2d 1433,

1436 (11th Cir. 1985), cert. denied, 479 U.S. 913 (1986). The court

of appeals also appeared to base the requirement of legal assis-

tance on its belief that skilled legal assistants might reduce the

burden on the courts. Casey, 43 F.3d at 1268 and n.6. Not only is

this an entirely inappropriate consideration in determining the

existence of a constitutional violation or the need for a remedy,

it is a tacit acknowledgment by the court of appeals that inmates

are not having any difficulty gaining access to the courts.

11

The Ninth Circuit simply found that the order to

provide regional case reporters and other materials was

“reasonable.” Casey, 43 F.3d at 1270-71. The court of

appeals did not find that these materials were necessary

for court access under Bounds, nor did it find that the

materials already in the library were insufficient to pre-

pare a civil rights complaint or habeas corpus petition.

Amici submit that this Court should recognize that the

materials in the Arizona law libraries exceed the mini-

mum required under Bounds, and conclude that there is

no constitutional basis for ordering Arizona to do more.

The court of appeals committed clear error when it

affirmed the sections of the injunction in which the dis-

trict court ordered direct physical access to the law

library for all inmates, regardless of the potential security

risk posed by some maximum security inmates. Casey, 43

F.3d at 1271. It then erroneously affirmed the ruling that

once in the library inmates must also be permitted to

browse in the stacks in search of “ ‘a chance discovery of

an obscure or forgotten case.’ ” Id., at 1267, quoting Tous-

saint v. McCarthy, 801 F.2d at 1110. In addition the court

of appeals erroneously affirmed a requirement that the

libraries must be open at least fifty hours per week to

serve the needs of the Arizona prison population. Id. at

1271.?

? Using the formula devised by the district court for hours

of operation at facilities which require an advance request for

library use, California estimates that given the size of its prison

facilities the libraries would have to remain open 24 hours per

day for five days per week to satisfy the order approved in this

case.

12

Once again, these requirements are far in excess of

those necessary to satisfy the fundamental constitutional

right at issue in Bounds. It is well established that a

prisoner’s right of access to court does not include a right

to appear personally in the court house. Holt v. Pitts, 619

F.2d 558, 560-561 (6th Cir. 1980); Ballard v. Spradley, 557

F.2d 476, 480 (5th Cir. 1977); Matter of Warden of Wisconsin

State Prison, 541 F.2d 177, 180-181 (7th Cir. 1976); McKin-

ney v. Boyle, 447 F.2d 1091, 1094 (9th Cir. 1971). By the

same token, the right of access to a law library need only

encompass the right to reasonable use of legal materials.

Direct physical access to a library is not necessary to

protect the right of access to court.

As the Court acknowledged in Bounds, a habeas

corpus petition or a civil rights complaint need only set

forth facts. Bounds, 430 U.S. at 825. Therefore most of the

drafting of the petition or complaint can be done in the

inmate’s cell or any other location where the prisoner has

available to him the materials necessary to draft his

pleading. To the extent that the prisoner requires the use

of a law library to assist him in the drafting of his

pleading, the institution must make available to him the

necessary materials. There is nothing of any constitu-

tional significance about the building in which the prison

chooses to house its collection of law books. An exact-cite

paging system, or any other system that ensures that

prisoners have the opportunity to use the materials in the

law library, suffices to satisfy prison administrators’ duty

under Bounds.

Finally, there is simply no constitutional basis for the

holding that the right of access to court requires prison

13

officials to provid? inmates with telephone calls to law-

yers. Since Arizona has chosen to provide inmates with

access to law libraries there is no further right to legal

assistance. Therefore, there was no need for the court of

appeals to engage in further discussion of the method by

which Arizona must provide access to lawyers.

Moreover, in Bounds, this Court carefully worded its

holding that an alternative to providing prisoners with an

adequate law library would be to provide them with

“adequate assistance from persons trained in the law.”

Bounds, 430 U.S. at 828. The Constitution does not require

that inmates be provided with lawyers. See, Lindquist v.

Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.

1985); Hooks v. Wainwright, 775 F.2d at 1437. Alternatives

to attorneys include “the training of inmates as paralegal

assistants to work under lawyers’ supervision [and] the

use of paraprofessionals and law students. ...” Bounds,

430 U.S. at 831. This Court stressed that “a legal access

program need not include any particular element we

have discussed ... ,” and it expressly upheld the court

order in Bounds because it left prison officials with “wide

discretion.” Id. at 832-833. Since prison officials cannot be

compelled under the Constitution to provide inmates

with lawyers, it follows that they cannot be compelled to

provide prisoners with telephone calls to lawyers.

Amici recognize that, in some civil rights or habeas

cases, prisoners will be represented by counsel who have

been retained by the inmate or appointed by the court

under other provisions of the law. Consistent with this

Court’s recognition in Bounds of the discretion which

necessarily remains with prison officials, federal courts

should not prescribe any method through which inmates

14

may discuss their case with counsel. A regulation which

limits contacts to face-to-face meetings or to correspon-

dence is facially valid. There is no basis upon which this

Court could conclude that telephone calls to lawyers are

necessary to protect the constitutional right of access to

courts.

+

CONCLUSION

For the reasons stated above and in the Petition for

Writ of Certiorari, the decision of the Ninth Circuit

should be reversed, and prison officials should only be

required to provide prisoners with the minimum

resources required for the initial filing of a civil rights

complaint or a habeas corpus petition.

Respectfully submitted,

Danie. E. LUNGREN,

Attorney General

Peter J. SIGGINs,

Sr. Asst. Atty. Genl.

Morris LENK,

Sr. Supv. Atty. Genl.

Kari S. Mayer

Bruce M. Stavin*

Deputy Attorneys General

50 Fremont Street, Suite 300

San Francisco, CA 94105

(415) 356-6048

Attorneys for Amici States

*Counsel of Record

August 14, 1995