Petition for Writ of Certiorari — Shaw v. Murphy

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991613 APR 06 208

No. 99-__QOFBICE Qs ib pees

In The

Supreme Court of the United States

ROBERT SHAW; LARRY BEARLEY;

MICHAEL MAHONEY; MYRON BEESON;

AND RICHARD S. DAY,

Petitioners,

KEVIN MURPHY,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeais

For The Ninth Circuit

PETITION-FOR WRIT OF CERTIORARI

JoserpH P. Mazurek

Attorney General of Montana

Davip L. OHLER

Special Assistant Attorney

General

Counsel of Record

Di1ANA LEIBINGER-KOCH

Special Assistant Attorney

General

R. Perry EskripGe

Special Assistant Attorney

General

1539 Eleventh Avenue

P.O. Box 201301

Helena, MT 59620

(406) 444-5682

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

OR CALL COLLECT (402) 342-2831

TAPES

—-

QUESTION PRESENTED

Does the First Amendment to the United States Con-

stitution grant a state prison inmate an independent and

free-standing right to assist another state prison inmate

with a pending court case even if the State supplies other

forms of legal assistance to the prison inmate?

PARTIES

The Petitioners are Richard S . Day, Director of the

Montana Department of Corvections; and Robert Shaw,

Larry Bearley, Michael Mahoney, and Myron Beeson,

employees of the Montana Department of Corrections.

The Respondent is Kevin Murphy, an inmate at Mon-

tana State Prison.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED...............660seeee eee i

DT eeRUbGEGbbeesceccccesccoccceccsccccccece ii

TABLE OF AUTHORITIES......... 0.66.65. 0 00 eee Vv

CTIIINS GELOW on. cece cece ccc ccccccccccceess 1

PURISDICTION .... 2. ccc ccccccccccececereeceeeceees |

RELEVANT CONSTITUTIONAL AND STATUTORY

IES coccecccccseccccrccescccccccccceess 2

STATEMENT OF THE CASE......... 0.666555 000055 3

REASONS FOR GRANTING THE PETITION....... 8

I. THE NINTH CIRCUIT COURT IDENTIFIED A

FIRST AMENDMENT RIGHT FOR A PRISON

INMATE*TO ASSIST ANOTHER INMATE

WITH LITIGATION REGARDLESS OF

WHETHER THE LATTER INMATE HAS

OTHER ASSISTANCE, BUT OTHER CIRCUIT

COURTS REFUSE TO RECOGNIZE SUCH A

Il. THE NINTH CIRCUIT DECISION CANNOT BE

RECONCILED WITH THIS COURT'S DECI-

SIONS IN JONES v. PRISONER'S UNION,

TURNER v. SAFLEY, JOHNSON v. AVERY, AND

Ne cn esccccece 14

Ill. THIS ISSUE IS OF EXCEPTIONAL IMPOR-

EEE EE 20

i ca cece gncceccceces 22

TABLE OF CONTENTS - Continued

Page

APPENDIX

Opinion of the Ninth Circuit Court of A l

(filed November 4, 1999) ............... " ae 1

Order of the United States District Court Granting a

Defendants’ Motion for Summary Judgment

and Denying Plaintiff’s Motion for Summary

Judgment (filed September 10, 1997)........: App. 18

Judgment of the United States District Court (filed

September 23, 1997) ................... ‘ , “s ee 27

Order and Findings and Recommendation of U.S.

Magistrate Judge (filed February 26, 1997) .. App. 28

Order of the Ninth Circuit Court of Appeals

Denying Appellees’ Petition for Rehearing and

Suggestion for Rehearing en b fi ’

> Shoo) g en banc (filed January

pe ceecececceescesncesecesndeeseueceus App. 45

Letter from Respondent Murphy to Inmate Pat

WO as cocdennsddacdendeseéesceuactodeataua: App. 46

Affidavit of Pat Tracy.......................05. App. 48

0 A ee”

an Cem

TABLE OF AUTHORITIES

Page

Cases

Abbott v. Meese, 824 F.2d 1166 (D.C. Cir. 1987),

overruled on other grounds, sub nom. Thornburgh

v. Abbott, 490 U.S. 401 (1989)... 2.0.0.6... c eee ees 11

Bass v. Singletary, 143 F.3d 1442 (11th Cir. 1998) ..8, 12

Brookins v. Kolb, 990 F.2d 308 (7th Cir.

BE c ccccccccccstnecasedosenucssoousss 9, 12, 13, 20

Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978)..... 9, 12

Flittie v. Solem, 827 F.2d 276 (8th Cir. 1987)......... 11

Gassler v. Rayl, 862 F.2d 706 (8th Cir. 1988)....... 8, 11

Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993)...... 8, 10

Gometz v. Henman, 807 F.2d 113 (7th Cir. 1986)...9, 13

Herron v. Harrison, 203 F.3d 410 (6th Cir. 2000)..... 11

Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997)........ 10

Johnson v. Avery, 393 U.S. 483 (1969) .... 14, 15, 18, 19

Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997)..10, 11

Jones v. North Carolina Prisoners’ Labor Union,

433 U.S. 119 (1977) .... 2... cee cece cece cece 14, 15, 16

Kunzelman v. Thompson, 799 F.2d 1172 (7th Cir.

PEs c ccccocccececccccecendssecscescccsessoses 9, 13

Lewis v. Casey, 518 U.S. 343 (1996) .......... 14, 15, 19

NAACP v. Button, 371 U.S. 415 (1963) .............-. 9

Nicholas v. Miller, 189 F.3d 191 (2nd Cir. 1999)....... 4

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .... 20

Owens v. Rush, 654 F.2d 1370 (10th Cir. 1981)........ y

TABLE OF AUTHORITIES - Continued

Page

Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995)..... 10, 21

Rizzo v. Dawson, 778 F.2d 527 (9th Cir. 1985)..... 9, 10

Sandin v. Connef, 515 U.S. 472 (1995)............... 21

Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990)

inbeChheeewaas knddudcducedeseutndaeuewessaene 8, 10, 11

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) .... 11

Thornburgh v. Abbott, 490 U.S. 401 (1989) .......... 16

Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996).......... 8, 11

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

Washington v. Harper, 494 U.S. 210 (1990) .......... 20

Williams v. Nix, 1 F.3d 712 (8th Cir. 1993) ....... 11, 20

Feperat MArTerias

United States Constitution

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ES Mh ebicrnecdesensisceeduestancendcenes 2, 10

United States Code

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Se Ce Sn 6d ik desdapeeesndchuuntvdssasosenens 1, 6

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PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully request this Court issue a

writ of certiorari to review the opinion and judgment of

the United States Court of Appeals for the Ninth Circuit

that the Ninth Circuit Court entered on November 9,

1999.

OPINIONS BELOW

The three-judge panel of the United States Court of

Appeals for the Ninth Circuit filed its Opinion on

November 9, 1999, and is reported at 195 F.3d 1121 (9th

Cir. 1999). (App. 1). The Ninth Circuit Court of Appeals

denied a Petition for Rehearing and a Suggestion for

Rehearing En Banc on January 7, 2000. (App. 45). The

district court filed an unreported Order on September 10,

1997. (App. 18). The magistrate judge issued an

unpublished Order and Findings and Recommendation.

(App. 28).

JURISDICTION

The Respondent filed claims under 42 U.S.C. § 1983,

before the district court, and federal jurisdiction existed

under 28 U.S.C. § 1343. On September 23, 1997, the dis-

trict court granted the Petitioners’ Motion for Summary

Judgment ar.d denied the Respondent's Motion for Sum-

mary Judgment. Respondent filed a Notice of Appeal on

October 23, 1997. Appellate jurisdiction existed under 28

U.S.C. § 1291.

On November 4, 1999, the Ninth Circuit Court of

Appeals reversed the district court’s Order and remanded

the case with instructions to enter summary judgment in

favor of the Respondent. Petitioners filed a timely Peti-

tion for Rehearing with Suggestion for Rehearing En Banc

on November 26, 1999. The Ninth Circuit denied the

Petition for Rehearing on January 7, 2000. Jurisdiction

over the petition for certiorari exists under 28 U.S.C.

§ 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The First Amendment to the United States Constitu-

tion provides that:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press, or the right of the people

peaceably to assemble, and to petition the Gov-

ernment for a redress of grievances.

The Fourteenth Amendment to the United States

Constitution provides in pertinent part that:

Section 1. All persons born or naturalized in

the United States and subject to the jurisdiction

thereof, are citizens of the Unites States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State 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 laws.

Pn eT Niet tN Pit lies Ab Al TI ir

—_—

42 U.S.C. § 1983, provides in pertinent part that:

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Colum-

bia, subjects, or causes to be subjected any citi-

zen of the United States, or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

STATEMENT OF THE CASE

1. This case arose when Respondent attempted to

communicate with another Montana State Prison (MSP)

inmate, Pat Tracy, about Tracy’s pending criminal

charges. MSP housed Tracy in the prison’s high security

compound until officials moved him to the maximum

security unit after he assaulted correctional officer Glen

Galle. The State charged Tracy with criminal felony

assault in state district court, and the state district court

therefore appointed counsel to defend Tracy against the

criminal charges. (App. 49).

Tracy’s place of residence at MSP is significant

because the prison is a multi-custody correctional facility.

It is physically divided into three separate compounds,

the low-security compound or “low side,” the high-secu-

rity compound or “high side,” and the maximum security

compound. MSP houses death row inmates in maximum

security, and it houses inmates there who are so disrup-

tive and violent they cannot live in the general prison

population. MSP incarcerated Respondent in the high

security compound at the prison. He worked as an

inmate law clerk at the prison, and as such, prison policy

authorized Respondent to provide legal assistance to high

security inmates, but not to maximum security inmates.

MSP did not allow Respondent to enter the maximum

security unit.

Tracy nonetheless attempted to summon Respondent

to the maximum security unit to consult with Tracy about

his pending assault charges. The prison denied Tracy’s

request to consult with Respondent based upon Respon-

dent’s high security classification and Tracy’s maximum

security classification. The prison instead sent a low secu-

rity inmate law clerk to confer with Tracy. Tracy rejected

the approved clerk’s assistance. (App. 49).

On February 16, 1995, Respondent wrote Tracy a

letter which read as follows:

Dear Pat:

How ya (sic) doing? I haven’t wrote (sic)

before now. I been (sic) busy fighting my

charges. Finally got everything taken care of. I

can’t come up to max anymore. the (sic) lowside

clerks go up there now. that’s (sic) why I haven't

called you out like I used to. | do want to help

you with your case against Galle. It wasn’t your

fault and I know he provoked whatever hap-

pened! Don’t plead guilty because we can get at

least 100 witnesses to testify that Galle is an

overzealous guard who has a personal agenda

to punish and harass inmates. He has made

homo-sexual advances towards certain inmates

and that can be brought up into the record.

There are petitions against him and I have tried

Ck one tee

to get the Unit Manager to do something about

what he does in Close II, but all that happened

is that I received two writeups from him myself

as retaliation. So we must pursue this out of the

prison system. I am filing a suit with everyone

in Close I and II named against him. So you can

use that too!

Another point is that he grabbed you from

behind. You tell your lawyer to get a hold of me

on this. Don’t take a plea bargain unless it’s for

no more time.

I seen (sic) Damie for a little while when I

was out. I never came over to Butte much.

Lenny is living in lower D still and I don’t speak

to him much. His sister did something to Ted

from what I heard. I don’t know what. Well I

will write again when I get this thing against

Galle finished.

iS =e

Murph

(App. 46).

Petitioner Shaw, a maximum security unit correc-

tional officer, intercepted and read Respondent's letter.

Shaw believed the letter constituted insolence, which the

prison defines as “words, actions or other behavior which

is intended to harass or cause alarm in an employee;”

interfered with a due process hearing, which the prison

defines in part as “making a false statement of miscon-

duct against . . . staff that could result in disciplinary

action;” and comprised a threat to the security or orderly

operation of the institution. Shaw charged Respondent

with three disciplinary rule violations, Rule 009, Inso-

lence; Rule 022, Interference with Due Process Hearings;

and Rule 025, Conduct Which Disrupts or Interferes with

the Security or Orderly Operation of the Institution.

Petitioner Bearley, a MSP disciplinary hearing officer,

thereafter conducted a disciplinary hearing on the

charges. Bearley found Respondent guilty of violating

Rules 009 and 022. He found Respondent not guilty of

violating Rule 025. Bearley gave Respondent a suspended

sentence of 10 days detention.

2. Respondent filed a complaint in federal district

court against Petitioners on October 24, 1995. He alleged

that when the prison disciplined him for the content of

his letter to Tracy they violated his First Amendment free

speech rights and his right to provide other inmates with

legal assistance. He also alleged the discipline violated

the rights of other inmates to access the courts because it

denied them the assistance of an inmate law clerk, and it

violated the Due Process Clause because the disciplinary

rules were void for vagueness. He asserted these claims

under 42 U.S.C. § 1983, with jurisdiction predicated on 28

U.S.C. § 1343(3).

Following discovery, the parties filed cross motions

for summary judgment. A magistrate judge issued find-

ings and recommended that the district court grant Peti-

tioners’ Motion for Summary Judgment as to the access to

the courts claim, but recommended that the court deny

the motion as to the other claims. (App. 29). The magis-

trate judge further recommended the court deny Respon-

dent’s Motion for Summary Judgment. (App. 29).

Both parties filed Objections to the magistrate’s

Order and Findings and Recommendation. The district

court granted Petitioners’ Motion for Summary Judgment

and denied Respondent's cross-motion. (App. 25-26). The

court found Respondent was “not acting as an inmate law

clerk” when he wrote to Tracy and accordingly enjoyed

no special privilege in his correspondence to Tracy. (App.

23-24). The court then analyzed the prison’s sanctions

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

and concluded that the prison regulation that censored

inmate-to-inmate correspondence was rationally con-

nected to prison objectives of safety, security, and inmate

rehabilitation. (App. 25). The court deemed the alterna-

tive Respondent proposed, that the prison read, but not

censor, his correspondence to Tracy was “unacceptable

and would have a dangerous impact on guards and other

inmates.” (App. 25). It held, finally, that the prison did

not violate Respondent’s First Amendment free speech

rights because any “First Amendment right-to assist other

inmates is . . . inconsistent with his status as a prisoner

and with the legitimate penological objectives of MSP.”

(App. 24-25).

The Ninth Circuit Court of Appeals reversed the

district court. (App. 17). The Court of Appeals concluded

that Respondent was acting as an inmate law clerk when

he wrote to Tracy, that the First Amendment granted

Respondent the right to assist Tracy, that legal advice is

entitled to greater First Amendment protections than gen-

eral correspondence, and that Petitioners’ actions were an

“exaggerated response” to MSP’s legitimate security con-

cerns. (App. 1).

REASONS THE COURT SHOULD

GRANT THE PETITION

There are three reasons the Court should grant this

petition. First, the circuit courts are divided when they

assess whether a prison inmate possesses a First Amend-

ment right to assist other inmates with litigation. Second,

the Ninth Circuit opinion cannot be reconciled with the

four decisions of this Court most relevant to the claimed

First Amendment right. Third, the Court of Appeals’ deci-

sion directly, and adversely, affects state management and

security of prisons.

I. THE NINTH CIRCUIT COURT IDENTIFIED A

FIRST AMENDMENT RIGHT FOR A PRISON

INMATE TO ASSIST ANOTHER INMATE WITH

LITIGATION REGARDLESS OF WHETHER THE

LATTER INMATE HAS OTHER ASSISTANCE, BUT

OTHER CIRCUIT COURTS REFUSE TO RECOG-

NIZE SUCH A RIGHT.

The Ninth Circuit found that “inmates have a First

Amendment right to assist other inmates with their legal

claims. . . . [T]he provision of legal assistance to fellow

inmates is an activity protected by the First Amendment.”

(App. 6, 8 and 9). The court recognized, however, that the

ruling conflicts with several other circuits’ decisions:

Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993); Gassler v.

Ray!, 862 F.2d 706, 708 (8th Cir. 1988); and Smith v. Masch-

ner, 899 F.2d 940, 950 (10th Cir. 1990). (App. 9-10, fn.6).

The Court of Appeals also could have added decisions

from the Fifth and Eleventh Circuits. Tighe v. Wall, 100

F.3d 41, 43 (5th Cir. 1996); Bass v. Singletary, 143 F.3d 1442,

1446 (11th Cir. 1998). Indeed, the Ninth Circuit stands

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alone with its conclusion that prison inmates enjoy a First

Amendment right to render legal assistance to fellow

inmates.' There is good reason for its isolation.

1. The Court of Appeals relied principally upon its

prior decision in Rizzo v. Dawson, 778 F.2d 527 (9th Cir.

1985), to support the conclusion that inmates enjoy a First

Amendment right to associate and, by apparent inference,

to assist other inmates with legal matters. (App. 6, 8-9).

There, a California prison inmate alleged prison staff

retaliated against him and transferred him from San

Quentin to another correctional facility because he

assisted other inmates with their habeas corpus petitions

and filed his own lawsuits. Id. at 529. The circuit court

determined the inmate may be entitled to relief, and

utilized the analysis of associational rights in a non-

prison case, Owens v. Rush, 654 F.2d 1370 (10th Cir. 1981).

In Owens the Tenth Circuit found that a government

employer may not infringe upon a husband’s First

Amendment right of association when he assists his wife

in a civil rights action. Id. at 1379. From that holding in a

non-prison case, and the Supreme Court’s holding in

another non-prison case, NAACP v. Button, 371 U.S. 415

! The Seventh Circuit has considered the issue but reached

somewhat inconsistent conclusions. The decisions in Brookins v.

Kolb, 990 F.2d 308 (7th Cir. 1993), and Buise v. Hudkins, 584 F.2d

223 (7th Cir. 1978), arguably suggest there is a First Amendment

constitutional right to give legal assistance, but the court of

appeals in Gometz v. Henman, 807 F.2d 113 (7th Cir. 1986), and

Kunzelman v. Thompson, 799 F.2d 1172 (7th Cir. 1986), found

there is no right to assist other inmates with legal matters. The

Second Circuit discussed the issue but declined to express a

view. Nicholas v. Miller, 189 F.3d 191, 195 (2d Cir. 1999).

(1963), the Rizzo court analogized and determined an

inmate, possessed the same First Amendment associa-

tional rights to assist another inmate with litigation. 778

F.2d at 531-532.

For 14 years the Ninth Circuit cited Rizzo for the

simple premise that inmates are entitled to due process of

law and that prison officials may not retaliate against

inmates for litigation activities. See Hines v. Gomez, 108

F.3d 265, 267 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802,

807 (9th Cir. 1995). Now, however, the panel below

expanded the holding of Rizzo to protect all inmate-to-

inmate correspondence of a legal nature under a theory

that inmates possess a First Amendment associational

right to assist each other with legal actions. (App. 6, 9).

2. The Ninth Circuit's ruling departs from the path

charted by five other circuits. This departure arises from

a disagreement over just what and whose constitutional

right is at issue. Unlike the Ninth Circuit, the other courts

of appeals have found the availability of inmate legal

assistance grounded in the right of access to the courts

which is “one of the privileges and immunities accorded

citizens under article 4 of the Constitution and the Four-

teenth Amendment. It is also one aspect of the First

Amendment right to petition the government for redress

of grievances.” Smith v. Maschner, 899 F.2d 940, 947 (10th

Cir. 1990) (citations omitted). Moreover, the inmate who

receives the assistance is the inmate who possesses the

right, not the inmate who gives the assistance. “The rele-

vant constitutional protection . . . accrues to the benefit of

the prisoner in whose name the lawsuit is filed, not those

who assist in the preparation of that lawsuit.” Johnson v.

Rodriguez, 110 F.3d 299, 311 (5th Cir. 1997). See also Gibbs

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Nikesa Wn!

v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993); Abbott v. Meese,

824 F.2d 1166, 1169 (D.C. Cir. 1987) overruled on other

grounds sub nom. Thornburgh v. Abbott, 490 U.S. 401 (1989).

A sampling of the decisions from the other circuits

underscores the nature, and seriousness, of their dis-

agreement with the result here. In, Gassler v. Rayl, 862

F.2d 706, 707-708 (8th Cir. 1988) the court observed that

“[t}]here is . . . no right to be or to receive legal assistance

from a jailhouse lawyer independent of the right of access

to the court.” The court noted in Tighe v. Wall, 100 F.3d 41,

43 (Sth Cir. 1996) that “[p]risoners have no right to a

particular prisoner's help in legal matters as long as the

putative recipient's constitutional right of access to the

courts is not infringed.” The Sixth Circuit reasoned sim-

ilarly in Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir.

1999), when it stated that “[i]t is clear in this circuit that

an inmate does not have an independent right to help

other prisoners with their legal claims.” A prisoner’s

right to assist another prisoner thus “is wholly derivative

of that prisoner's right of access to the courts; prison

officials may prohibit or limit jailhouse lawyering unless

doing so interferes with an inmate’s ability to present his

grievances to a court.” Id. at 395. Another circuit made

the seemingly obvious point that, “[w)hile it is well estab-

lished that inmates’ access to the courts and counsel may

not be abridged, an individual nmate does not have a

constitutional right to ‘practice’ jailhouse law.” Williams v.

Nix, 1 F.3d 712, 716 (8th Cir. 1993) (citations omitted); see

also Johnson v. Rodriguez, 110 F.3d at 311; Herron v. Har-

rison, 203 F.3d 410, 415-416 (6th Cir. 2000); Flittie v. Solem,

827 F.2d 276, 279-280 (8th Cir. 1987); Smith v. Maschner,

899 F.2d 940, 950 (10th Cir. 1990); Bass v. Singletary, 143

F.3d 1442, 1446 (11th Cir. 1998).

The only other circuit court that even arguably has

approached this issue in a manner similar to the court

below is the Seventh Circuit Court of Appeals. See Buise v.

Hudkins, 584 F.2d 223, 229-231 (7th Cir. 1978); Brookins v.

Kolb, 990 F.2d 308, 312-314 (7th Cir. 1993). The Seventh

Circuit, though, refrained from actually di termining

whether inmates have an independent First Amendment

associational right to give legal assistance. In Buise, the

court withheld a definite ruling when it considered

whether an inmate has a First Amendment associational

right in “jailhouse lawyering.” 584 F.2d at 230. It eventu-

ally concluded that an inmate “may have First Amend-

ment associational rights in writ writing.” Id. at 231

(emphasis added.).

The Seventh Circuit continued to analyze associa-

tional rights in Brookins v. Kolb, 990 F.2d 308 (7th Cir.

1993). Brookins dealt with an inmate whom the prison

appointed to assist other inmates in what the prison

called a Paralegal Base Committee (“PBC”). The prison

sanctioned Brookins for failing to follow PBC rules when

he wrote a letter to prison administrators about another

inmate’s misconduct charges. The court found Brookins

possessed “associational rights to act on behalf of” the

other prisoners “in his capacity as the co-chairman of the

PBC... . ” 990 F.2d at 312. The court acknowledged

Brookins possessed only the “limited right” the State

gave him and-the other inmates “to form and take part in

the PBC.” Id. at 313. The letter he wrote for another

inmate, the court said, “represents the extension of his

right to associate with [the other inmate] within the scope

of the limited right the State had given the prisoners to

form and operate the PBC.” Id. The court did not directiy

address whether an inmate had an associational right to

assist another inmate with litigation independent of any

limited right the prison gave the inmate in the prison

paralegal organization.

In two other decisions, Kunzelman v. Thompson, 799

F.2d 1172 (7th Cir 198-2), and Gometz v. Henman, 807 F.2d

113 (7th Cir. 1986), the court connected the inmate’s legal

assistance activities only with access to courts. The court

in Gometz, with somewhat similar facts to the ones pre-

sented here, said a prisoner is entitled to adequate access

to the courts, not “maximum possible access.” Id. at 116.

The inmate Gometz wanted to assist, like the inmate

Respondent purportedly tried to assist here, had an attor-

ney who represented him and the court noted, “legal

representation is always sufficient” to satisfy adequate

access to courts. Id. at 116. The court in Kunzelman said

the First Amendment right claimed by Respondent and

found by the Ninth Circuit may exist, but “the case law is

unclear on the point.” 799 F.2d at 1178 n.6. The Seventh

Circuit, therefore, is at best equivocal on the question

Petitioners present here.

If a Fifth, Sixth, Eighth, Tenth, or Eleventh Circuit

panel had heard this case, they would have been required

by prior circuit authority to reject Respondent's claimed

First Amendment right to give legal advice, not only

because here Tracy admittedly had no access-to-courts

grievance because an attorney represented him, but also

because these courts have not found inmates possess a

First Amendment right to assist other inmates with legal

issues. This Court should grant a writ of certiorari to

resolve the conflict over whether the First Amendment

protects an inmate who wishes to assist other inmates

with legal claims.

Il. THE NINTH CIRCUIT DECISION CANNOT BE

RECONCILED WITH THIS COURT’S DECISIONS

IN JONES v. PRISONERS’ UNION, TURNER v.

SAFLEY, JOHNSON v. AVERY, AND LEWIS v.

CASEY.

A claim that concerns a prison inmate’s right to pro-

vide legal assistance to another inmate involves a combi-

nation of three factors: inmates’ rights to associate, to

correspond, and to access the courts.2 While this Court

has not addressed these factors together nor in light of

the question Petitioners present here, it has provided

guidance on each of the three individual factors in a

variety of cases. The definitive case involving inmate

association is Jones v. North Carolina Prisoners’ Labor

Union, 433 U.S. 119 (1977), in which the Court held an

inmate’s right to associate is necessarily curtailed when

the government incarcerates him in a correctional facility.

_. The Court resolved the issue of inmate correspondence in

Turner v. Safley, 482 U.S. 78 (1987). Lastly, it defined a

prison’s duties and obligations in conjunction wii

inmate access to courts first in Johnson v. Avery, 393 U.S.

483 (1969), and then in Lewis v. Casey, 518 U.S. 343 (1996).

The Ninth Circuit has expanded significantly the Court's

2 The Ninth Circuit did not reach Respondent's access to

courts claim (App. 15), and it did not discuss the First

Amendment associational right in relation to an inmate's right

to access the courts.

holdings in Jones, Turner, Johnson, and Lewis without iden-

tifying an appropriate doctrinal basis for doing so.

1. Communication between inmates necessarily

involves some form of association. The ultimate mani-

festation of associational rights is, perhaps, best demon-

strated through the formation of a union. In Jones, this

Court reviewed the associational rights of inmates who

sought to create a labor union within the North Carolina

correctional system. 433 U.S. at 121. The North Carolina

Department of Corrections, to curtail the union’s recruit-

ment activities, enacted a regulation “prohibit[ing]

inmates from soliciting other inmates to join, . . . barred

all meetings of the Union, and refused to deliver packets

of Union publications that had been mailed in bulk to

several inmates for redistribution among other pris-

oners.” Id. This Court reversed the district court's injunc-

tion against the North Carolina Department of

Corrections stating,

Perhaps the most obvious of the First Amend-

ment rights that are necessarily curtailed by

confinement are those associational rights that

the First Amendment protects outside of prison

walls. The concept of incarceration itself entails

a restriction on the freedom of inmates to associ-

ate with those outside of the penal institution.

Equally as obvious, the inmate’s “status as a

prisoner” and the operational realities of a

prison dictate restrictions on the associational

rights among inmates. Because the realities of

running a penal institution are complex and dif-

ficult, we have also recognized the wide-ranging

deference to be accorded the decisions of prison

administrators.

Id. at 125-126.

Although Jones clearly demonstrates that prison offi-

cials may curtail an inmate’s First Amendment associa-

tion rights, the Ninth Circuit concluded that inmates have

a right to render legal assistance grounded in the First

Amendment right to associate. (App. 9). The panel’s deci-

sion expands inmates’ associational rights rather than

curtails them.

2. Likewise, if inmates possess a constitutional right

to render legal assistance, such assistance may take the

form of inmate correspondence as it did in this case. This

Court provided guidance concerning inmate correspon-

dence in Turner. There, the Court recognized that inmate-

to-inmate correspondence poses a number of threats to

the security of a prison. Inmates may write “in codes not

readily subject to detection. . . . ” 482 U.S. at 88. Inmate-

to-inmate correspondence enhances the ability of inmates

to engage in coordinated disruptive activities, spurs crim-

inal activity, facilitates informal inmate organizations,

and may “threaten the core functions of prison adminis-

tration, maintaining safety and internal security.” Id. at

88, 91-92; see also Thornburgh v. Abbott, 490 U.S. 401, 412

(1989). The Ninth Circuit disregarded or minimized these

security concerns, as well as the burden on prison

resources. This Court, however, has concluded that “|t]he

risk of missing dangerous communications, taken

together with the sheer burden on staff resources

required to conduct item-by-item censorship, supports

the judgment of prison officials that this alternative

[monitoring inmate mail] is not an adequate alternative to

restricting correspondence.” 482 U.S. at 93. The Court

upheld a ban on inmate-to-inmate correspondence with

very limited exceptions. Id. at 81, 93.3

The panel below, in contrast, concluded that legal

advice was, “unlikely to cause the harms or injuries” that

prison disciplinary rules were intended to prevent. (App.

13). Apparently, it believed that inmate-to-inmate corre-

spondence is unlikely to cause the harms or injuries to

prison safety and security this Court recognized in

Turner. Despite the many inexorable problems this Court

identified with inmate-to-inmate correspondence, the

Ninth Circuit’s decision makes it impossible for a prison

to ban inmate-to-inmate correspondence because inmates

must have some method by which to exercise their inde-

pendent constitutional right to render legal assistance.

Moreover, despite the fact Respondent sent his legal

advice to a maximum security inmate, the Court of

Appeals held that “the Prison’s interest in security and

order is at a low ebb when the correspondence in ques-

tion is legal advice relating to a pending or potential

case.” (App. 12). Prison staff, in short, must forward the

purported legal advice to the inmate despite the fact they

may not detect and delete everything that constitutes a

threat to institutional security, notwithstanding the fact

that this Court has determined this is an unacceptable

risk to prison safety and security. Turner, 482 U.S. at 93.

* The Missouri regulations at issue only permitted

correspondence between immediate family members and

correspondence concerning iegal matters, although, the way

Missouri officials implemented the rules it only allowed

correspondence between family members.

3. The Ninth Circuit’s opinion further conflicts with

this Court’s prior decisions regarding inmate access to

courts. In Johnson, this Court rejected a prison regulation

that prohibited inmate “writ writers” from advising or

helping other inmates with their habeas corpus claims

because the prison furnished no other form of legal assis-

tance to inmates. 393 U.S. at 490. The Court concluded

that, “unless and until the State provides some reasonable

alternative to assist inmates in the preparation of peti-

tions for post-conviction relief, it may not validly enforce

a regulation such as that here in issue, barring inmates

from furnishing such assistance to other prisoners.” Id.

The Court noted that “techniques are available to provide

alternatives if the State elects to prohibit mutual assis-

tance among inmates.” Id. The Court identified alterna-

tives such as public defenders, law students, or pro bono

bar associations. Id. at 489. In addition, this Court stated:

Even in the absence of such alternatives, the

State may impose reasonable restrictions and

restraints upon the acknowledged propensity of

prisoners to abuse both the giving and seeking

of assistance in the preparation of applications

for relief: for example, by limitations on the time

and location of such activities and the imposi-

tion of punishment for the giving or receipt of

consideration in connection with such activities.

Id. at 490.

Clearly, a State may prohibit writ writers from assist-

ing other inmates so long as it provides other alternatives

to inmates who need legal assistance. Here, the state

district court appointed an attorney to represent Tracy,

and MSP officials sent an inmate law clerk to assist him.

‘

(App. 49). Even after MSP clearly met the Johnson man-

date and Tracy had two forms of legal assistance, the

Ninth Circuit opined that Respondent had a constitu-

tional right to correspond with Tracy and assist him with

his pending criminal charges. (App. 6).

Likewise, the Ninth Circuit cannot square its opinion

with this Court’s ruling in Lewis. There, this Court clari-

fied 50 years of rulings on inmate access to courts. It

concluded that its previous holdings did “not create an

abstract, freestanding right to . . . legal assistance.” 518

U.S. at 351. The corollary to that rule is also true: The

Court’s previous holdings did not create an abstract,

freestanding constitutional right to render legal assis-

tance. The Court of Appeals nevertheless held to the

contrary. Moreover, under Lewis, inmates only possess the

right to access the courts to attack “sentences, directly or

collaterally, and in order to challenge the conditions of

their confinement.” Id. at 355. The opinion below gives

Respondent the constitutional right to assist Tracy with a

criminal prosecution when a member of the Montana bar

already represented Tracy.

Clear precedent from this Court governs the funda-

mental aspects encompassed within Respondent's claims.

The ruling in this case contradicts this Court's clear prec-

edent in four seminal cases. The Court should review the

Ninth Circuit’s ruling and bring the Court of Appeals

back into the bounds it previously demarcated concern-

ing how the First Amendment applies in a prison setting.

Ill. THIS ISSUE IS OF EXCEPTIONAL IMPORTANCE

This Court has long established the “legitimacy, and

the necessity, of considering the State’s interests in prison

safety and security.” Washington v. Harper, 494 U.S. 210,

223 (1990), citing Turner v. Safley, 482 U.S. 78 (1987), and

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

of whether an inmate possesses an independent First

Amendment associaticnal right to render legal assistance

to other prison inmates implicates prison discipline,

inmate-to-inmate prison correspondence, and the scope

of the prison’s legal assistance program. This issue, there-

fore, affects prison security and management.

This Court recognizes the myriad forms of threats

inmate-to-inmate correspondence poses to prison secu-

rity. Turner v. Safley, 482 U.S. at 88, 91. Inmates may utilize

coded language- within written correspondence to coordi-

nate and communicate a wide variety of concerted crimi-

nal activity within the facility including “escape plans,

_____—— -gssaults;and other violent acts.” Id. Additionally, inmate

law clerk programs may pose additional risks to prison

security because they help create a class of inmates who

may charge for their services and thereby establish a

barter economy within the prison. See Williams v. Nix, 1

F.3d 712, 715 (8th Cir. 1993). Also, inmate law clerks may

begin to have an “overinflated sense of importance”

which leads to disciplinary problems. Brookins, 990 F.2d at

315. The issue Petitioners present, therefore, becomes

important because prisons within the geographically

expansive Ninth Circuit must allow inmates to exercise

their First Amendment right to assist other inmates, and

prisons must devise methods to eliminate the obvious

threats to prison security.

When prison officials must make a determination

about a prisoner’s right to free speech the officials must

balance the right with institutional security and safety

concerns. Turner, 482 U.S. at 92. The choice prison offi-

cials make when they :nust engage in this balancing act

“should not be lightly set aside by the courts.” Turner, 482

U.S. at 93. This Court consequently has cautioned the

lower courts that “federal courts ought to afford appro-

priate deference and flexibility to state officials trying to

manage a volatile environment.” Sandin v. Conner, 515

U.S. 472, 482 (1995). Even the Ninth Circuit has adopted

the view that courts must allow prison officials to manage

the prisons without excessive judicial involvement. See

Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).

The Ninth Circuit’s holding that inmates possess a

First Amendment associational right to give legal advice

to other inmates, regardless of whether the prison pro-

vides other types of legal assistance, abrogates prison

officials’ ability to take appropriate action to ensure the

safety of inmates, corrections personnel, and the public. If

prison inmates have a constitutional right to give legal

assistance to other inmates, prison officials may not

infringe that right in the absence of reasonable alterna-

tives for prison inmates to exercise the right. Turner, 482

U.S. at 92-93. Accordingly, the prison must provide some

method by which inmates may exercise this constitutional

right and this will detract from prison officials’ ability to

make safety and security decisions. The Ninth Circuit's

decision also invades the province of state officials, cre-

ates attendant security problems, and elevates this to an

issue of exceptional importance. Given the disparate ana-

lytical approaches courts have taken when they address

this issue, and the extreme importance of the issue to

states and their prisons, Petitioners assert that it is appro-

priate for this Court to grant review and provide much

needed clarification and guidance on the scope of pris-

oners’ First Amendment rights and the scope of prisons’

inmate legal assistance programs.

CONCLUSION

For the foregoing reasons the Court should grant a

writ of certiorari. ;

Respectfully submitted,

JoserH P. MAZzUREK

Attorney General of Montana

Davip L. OHLER

Special Assistant Attorney

General

Counsel of Record

DIANA LEIBINGER-KOCH

Special Assistant Attorney

General

R. Perry EskRIDGE

Special Assistant Attorney

General

1539 Eleventh Avenue

P.O. Box 201301

Helena, MT 59620

(406) 444-5682

March, 2000

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Kevin Murpny,

Plaintiff-Appellant,

Rosert SHaw, Unit Sergeant;

Larry Beartey, Hearings Officer;

MicHaet Manoney, Bureau

Warden; Myron Beeson, Bureau

Warden; and Ricuarp S. Day,

Director, Department of

Corrections,

Defendants-Appellees.

tlle de in a ee en he hh

No. 97-35989

D.C. No.

CV 95-00062-CCL

OPINION

Appeal from the United States District Court for the

District of Montana

Charles C. Lovell, District Judge, Presiding

Argued and Submitted

March 12, 1999 - Seattle, Washington

Filed November 4, 1999

Before: Betty B. Fletcher, Stephen Reinhardt, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge B. Fletcher

App. 2

COUNSEL

Jeffrey T. Renz, Montana Defender Project, University of

Montana School of Law, Missoula, Montana, for the plain-

tiff-appellant.

David L. Ohler, Assistant Attorney General, Montana

Department of Corrections, Helena, Montana, for the

defendants-appellees.

OPINION

B. FLETCHER, Circuit Judge:

Plaintiff-Appellant Kevin Murphy (“Murphy”) is an

inmate law clerk at the Montana State Prison (“Prison”).

In early 1995, he sent a letter containing legal advice to

fellow inmate Pat Tracy (“Tracy”). Murphy was subse-

quently disciplined based on the content of that letter. In

this action, Murphy alleges that the discipline imposed

by the Prison violated his First Amendment rights, his

right as an inmate to access to the courts, and his rights

under the Due Process Clause. The district court granted

summary judgment in favor of the defendants on all his

claims. Because the provision of legal assistance to fellow

inmates is an activity protected by the First Amendment,

and because the prison regulations challenged here are

“an exaggerated response” to otherwise legitimate secu-

rity concerns, we reverse and remand with instructions

that summary judgment be entered in Murphy’s favor.

Facts AND PROCEDURAL HISTORY

In early 1995, Murphy, who had been trained as an

inmate legal clerk by the Prison, became aware that Tracy,

App. 3

a fellow inmate, had been charged with assaulting Cor-

rectional Officer Glen Galle (“CO Galle”). Murphy had

provided legal assistance to Tracy on several prior occa-

sions, and learned that Tracy had requested his assistance

in connection with the assault charge. Because Tracy had

been transferred to the maximum security wing of the

Prison, however, Murphy could not visit him directly.

Murphy also knew that counsel had been appointed to

represent Tracy. Nevertheless, Murphy began investigat-

ing the assault incident, and discovered that other

inmates had previously complained about CO Galle’s

conduct.

On February 16, 1995, Murphy wrote a letter to Tracy

which included the following:

.. - 1 do want to help you with your case against

Galle. It wasn’t your fault and I know he pro-

voked whatever happened! Don’t plead guilty

because we can get at least 100 witnesses to

testify that Galle is an over zealous guard who

has a personal agenda to punish and harass

inmates. He has made homo-sexual advances

towards certain inmates and that can be brought

up into the record. There are petitions against

him and I have tried to get the Unit Manager to

do something about what he does in Close II,

but all that happened is that I received two

writeups from him myself as retaliation. So we

must pursue this out of the prison system. | am

filing a suit with everyone in Close I and II

named against him. So you can use that too!

Another poiont [sic] is that he grabbed you

from behind. You tell your lawyer to get ahold

of me on this. Don’t take a plea bargain unless

it’s for no more time... .

App. 4

Murphy knew that the letter would be read by prison

officials pursuant to prison regulations. The letter was, in

fact, intercepted and read by defendant Robert Shaw.’

As a result of the February 16 letter, Murphy was

“written up.” Defendant Shaw completed three Major

Misconduct Violation Reports (also known as “Class Ils”)

charging Murphy with violating the following Prison reg-

ulations: Rule 009 (Insolence), Rule 022 (Interference with

Due Process Hearings), and Rule 025 (Conduct which

Disrupts or Interferes with the Security or Orderly Opera-

tion of the Institution). After a hearing, defendant Larry

Bearley found Murphy guilty of violating Rules 009? and

022.3 Murphy was given a suspended sentence of 10 days

detention and received three “reclassification points.”

1 Tracy, having never seen the letter, ultimately pleaded

guilty to the assault charge. It does not appear that Tracy or his

counsel ever were made aware prior to the plea of the

information in Murphy’s letter.

2 Rule 009 prohibits the following:

Insolence: Words, actions or other behavior which is

intended to harass or cause alarm in an employee.

[Examples:] Cursing; abusive language, writing or

gestures directed to an employee.

3 Rule 022 prohibits the following:

Interference with Due Process Hearings [Examples:]

Intimidating or tampering with an informant or

witness; tampering with or destroying evidence;

interfering with an employee in the process of writing

a conduct report; making a false statement of

misconduct against another inmate or staff that could

result in disciplinary action. (This violation should

not be charged for as a retaliation for the writing of a

grievance.)

App. 5

Murphy’s appeal was denied by defendant Michael

Mahoney.

In October 1995, Murphy filed a complaint against

Robert Shaw, Larry Bearley, Michael Mahoney, Myron

Beeson, and Richard Day, all employees of the Montana

Department of Corrections (collectively, “Defendants”).

The complaint, filed as a class action on behalf of all

inmate law clerks at the Prison, seeks injunctive and

declaratory relief pursuant to 42 U.S.C. § 1983. The com-

plaint alleges that the Prison’s imposition of discipline on

Murphy (1) violated the First Amendment; (2) abridged

the right of inmates to access to the courts and to present

habeas petitions; and (3) relied on prison regulations that

are void for vagueness on their face and as applied to

legal advice rendered by law clerks.

The case was referred for recommendation to a mag-

istrate judge, and Murphy and Defendants subsequently

filed cross-motions for summary judgment. Murphy also

filed a motion to certify the class. The magistrate judge

recommended that Defendants’ motion for summary

judgment be granted as to Murphy’s “right of access to

the courts” claims, and that all other motions be denied.

Murphy and Defendants each timely filed objections to

the magistrate’s recommendation. On de novo review, the

district court concluded that Defendants’ motion for sum-

mary judgment should be granted in its entirety, and that

Murphy’s motion for class certification should be

App. 6

denied.4 Final judgment was entered by the district court

on September 23, 1997. This appeal followed.

ANALYSIS

The district court granted summary judgment 7

favor of Defendants. A grant of summary judgment .

reviewed de novo. See Margolis v. Ryan, 140 F.3d 850, 85

(9th Cir. 1998). We have jurisdiction pursuant to 28 US.C

§ 1291 and must determine, viewing the evidence in

light most favorable to the nonmoving party, whet “

there exist any genuine issues of material fact =

whether the district court correctly applied the substan-

tive law. See id.

I. Murphy’s First Amendment claim

The viability of Murphy’s First Amendment claim

turns on the application of two established legal princi-

ples. First, this court has held that inmates have a we

Amendment right to assist other inmates with their lega

claims. See Rizzo v. Dawson, 778 F.2d 527, 531 (Sth Cir.

1985). Second, where a prison regulation, otherwise ae

erally justifiable, implicates a constitutional Ts w on

applied to a protected class of expression, this pon

applies a balancing test to insure that the fag ongenyton

an “exaggerated response.” See Bradley v. Hall, 6 md

1276, 1280 (9th Cir. 1995) (quoting Turner v. Safley, 4

U.S. 78, 89-90 (1987)). From these two principles flows the

+ Murphy has not appealed the denial of his motion for

class certification.

\ App. 7

conclusion that the district court erred in entering sum-

mary judgment in favor of Defendants here.

A. Was Murphy acting as a law clerk?

Defendants focus their attention on what they per-

ceive as a threshold issue. In their view, Murphy was not

acting as a law clerk when he wrote and sent the Febru-

ary 16 letter to Tracy. Defendants accordingly argue that

this case involves merely an unremarkable instance of

discipline for inmate-to-inmate correspondence, comfort-

ably within the general rule that prisons may, in the

pursuit of the interest of prisin security. intercept and

confiscate inmate-to-inmate correspondence without run-

ning afoul of the First Amendment. See Turner v. Safley,

482 U.S. at 89 (inmate-to-inmate correspondence inay be

banned so long as the policy is rationally related to a

legitimate penological interest).

To support their view, Defendants point out that

Murphy was not formally assigned by the Prison’s law

librarian to serve as Tracy’s law clerk. Moreover, Murphy

was aware that he could not visit Tracy in the maximum

security wing, and that counsel had been appointed for

Tracy in connection with the assault charge. The district

court also noted that Murphy had not been trained to

handle criminal cases. Murphy, in response, notes that

Tracy specifically asked for his legal assistance. It is

undisputed that Murphy had served as Tracy’s law clerk

on several occasions in the past. Murphy also contends

that law clerk assignment procedures were considerably

more informal than indicated by the regulations, and that

Murphy responded to Tracy’s request for assistance in the

App. 8

usual manner.5 The contents of the February 16 letter,

moreover, plainly relate to Tracy’s assault charge, sug-

gesting to Tracy a self-defense theory that he might raise.

On the basis of the undisputed facts, we reject Defen-

dants’ threshold argument that Murphy was not acting as

a law clerk when he wrote the February 16 letter. Murphy

was a trained inmate law clerk responding to a legal

inquiry from a fellow inmate, an inmate he had advised

on several prior occasions. The letter he sent to Tracy was

plainly related to the pending assault charges, and con-

veyed both factual and legal information that was poten-

tially relevant to Tracy’s defense. As will be discussed

below, this circuit in Rizzo v. Dawson, 778 F.2d 527, 531

(9th Cir. 1985), recognized that the provision of legal

assistance to a fellow inmate is an activity protected by

the First Amendment. The undisputed facts here are

enough to raise the First Amendment right recognized in

Rizzo. Cf. Rizzo, 778 F.2d at 531 (plaintiff offered legal

advice informally, outside any “inmate law clerk” pro-

gram sponsored by the prison).

B. Does the Prison’s conduct implicate Murphy’s

First Amendment rights?

The Prison’s imposition of discipline on Murphy

implicates his First Amendment rights for at least two

reasons. First, the letter itself constitutes speech that,

outside of the prison context, would doubtless enjoy the

5 Defendants have introduced no evidence rebutting

Murphy’s account of the actual operation of the law clerk

assignment process.

App. 9

protection of the First Amendment. The fact that the

speech occurs inside the prison walls means that prison

authorities may, in appropriate circumstances, regulate

the speech, but does not take it outside the reach of the

First Amendment altogether. The Supreme Court, for

example, has held that censorship of inmate-to-inmate

correspondence must be reasonably related to legitimate

penological interests in order to pass constitutional mus-

ter. See Turner, 482 U.S. at 91 (applying “reasonably

related to legitimate penological interests” test to chal-

lenged regulation of inmate-to-inmate correspondence).

Second, as noted above, the Prison’s discipline of

Murphy implicates the First Amendment right recog-

nized by this court in Rizzo. In that case, we held that the

provision of legal assistance to fellow inmates is an activ-

ity protected by the First Amendment. See Rizzo, 778 F.2d

at 531; see also Pratt v. Rowland, 65 F.3d 802, 806-07 (9th

Cir. 1995) (reaffirming vitality of Rizzo after the Supreme

Court’s decision in Sandin v. Conner, 115 S.Ct. 2293

(1995)). Rizzo involved a claim by a “jailhouse lawyer”

that prison authorities had reassigned him out of a prison

vocational program in retaliation for his assisting other

inmates with habeas petitions and civil rights actions. See

id. We held that his legal activities on behalf of other

inmates implicated associational rights protected by the

First Amendment. See id. To the extent such a right

exists, the Prison’s decision to discipline Murphy in the

instant case undoubtedly interferes with that right.

recognize a constitutional right to assist others in pressing legal

claims. See, e.g., Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993)

(“[N]o constitutional right to assist exists.”); Smith v. Maschner,

App. 10

C. Is the infringement of First Amendment rights

justified under the Turner v. Safley test?

We next ask whether the Prison’s infringement of

Murphy’s First Amendment rights is justified in light of

“legitimate penological interests.” See Turner, 482 USS. at

89. Although “[p]rison walls do not form a barrier sep-

arating prison inmates from the protections of the Consti-

tution,” see id. at 84, the courts must accord deference to

prison authorities on matters within their expertise, see id.

at 85. The Supreme Court has designed a special standard

of review for the prison context: “when a prison regula-

tion impinges on inmates’ constitutional rights, the regu-

lation is valid if it is reasonably related to legitimate

penological interests.” Id. at 89; accord Thornburgh v.

Abbott, 490 U.S. 401, 409 (1989). While this standard is

quite deferential, the Supreme Court has cautioned that

“a reasonableness standard is not toothless.” Abbott, 490

U.S. at 414.

In evaluating the “reasonableness” of a prison’s inva-

sion into the constitutional rights of prisoners, the

Supreme Court has instructed lower courts to evaluate

four factors: (1) whether the governmental objective is

legitimate and neutral, and whether the prison regulation

is rationally related to that objective; (2) whether there

are alternate means of exercising the rights that remain

open to prison inmates; (3) what impact accommodation

899 F.2d 940, 950 (10th Cir. 1990) (an inmate “does not have a

protected interest in providing legal representation to other

inmates”); Gassler v. Rayl, 862 F.2d 706, 708 (8th Cir. 1988) (“[A]n

inmate simply does not have the right to provide his fellow

inmates with legal assistance.”).

App. 11

oi inmates’ rights would have on guards, other inmates

and prison resources; and (4) the availability of ebviows,

easy alternatives to the challenged prison regulation. See

Abbott, 490 U.S. at 414-18; accord Mauro v. Arpaio, F.3d

—__ — (9th Cir. 1999) (en banc). —

1. Rational relation to a legitimate, neutral

governmental interest.

The interest advanced by Defendants here is the gen-

eral interest in security and order. It is undisputed that

this interest is legitimate. See, e.g., Abbott, 490 U.S. at 415

(prison security is a purpose central to all other correc-

tions goals). It also appears to be “neutral” in the relevant

sense — “the regulation or practice in question must fur-

ther an important or substantial governmental interest

unrelated to the suppression of expression.” Id. Finally, it

is also plain that, as a general matter, the Prison Rudeo ot

issue — Rule 009 (Insolence) and 022 (Interference with

Due Process Hearings) - are rationally related to the

Prison’s stated interest.

Murphy, however, is not challenging the regulations

as applied to inmate correspondence generally. Rather

Murphy attacks the regulations as applied to legal cone

spondence between an inmate performing the functions

of a law clerk and the inmate he is advising. When a

prison regulation, while rationally-related to a legitimate

interest in the general case, threatens constitutional inter-

ests as applied to a particular category of protected

expression, we must inquire whether the prison rule is

an exaggerated response.” Bradley v. Hall, 64 F.3d 1276

1280 (9th Cir. 1995). In answering this question, the court

A op. 12

“must balance the importance of the prisoner’s infringed

right against the importance of the penological interest

served by the rule.” Jd. The court must also “examine the

strength of the logical nexus between the penological

purpose served and restriction of the prisoner’s rights.”

Id.”

Here, the enforcement of the prison regulations

against Murphy infringes on his First Amendment right

to provide legal assistance to fellow inmates. See Rizzo,

778 F.2d at 531. At the same time, the Prison’s interest in

security and order is at a low ebb when the correspon-

dence in question is legal advice relating to a pending or

potential case. The Prison, for example, has little reason

to enforce Rule 009 (Insolence) in this context, sinceitcan

easily shield corrections officers from any “alarming”

statements contained in inmate mail. See Bradley, 64 F.3d

at 1281 (prison can easily shield COs who have direct

? The court in Bradley provided the following illustration:

A prison rule requiring all inmates to shower on

Tuesdays would serve the legitimate penological

interest of maintaining hygienic conditions. However,

it is unlikely that this Court would permit prison

officials to keep a prisoner from attending a court

date that happened to fall on a Tuesday. The

importance of the prisoner's right to attend his own

court date would outweigh the legitimate, though

less pressing, prison interest in a clean, fragrant

prison atmosphere. Such a rule would be an

exaggerated response. Thus, our analysis does not

necessarily end at the recognition that the prison rule

was adopted to serve, and actually does serve, a

legitimate penological interest.

Bradley, 64 F.3d at 1280.

satel bi nies ai

a oe eee OO ew &

= a reed A

App. 13

= with inmates from contents of inmate mail). Sim-

ilarly, the contents of correspondence regarding cases is

unlikely in itself to cause the harms or injuries that Rule

022 is intended to prevent.

Thus, it appears that the “logical nexus” here

between the governmental interest and the application of

the rules to law clerk correspondence is weak. The

Bradley balance appears to favor Murphy, suggesting that

the prison regulation i

S, as applied to him, are an “” -

rated response.” _——

2. Alternate me isi —_w

right. ans of exercising the infringed

It does not appear that Murphy has any alternative

means to exercise his right to render legal assistance to

maximum security inmates who, like Tracy, he is not

permitted to visit. Although Defendants suggest that

neuaphy could have forwarded his letter directly to

Tracy’s appointed counsel, there is nothing in the record

3. Impact on prison em i

ployees, othe

and prison resources. . ——

| Murphy asks that law clerks not be subject to disci-

pline based on the content of the legal advice they pro-

vide. He does not suggest that law clerk correspondence

be immune from interception and review. According]

prison officials could continue to monitor sacdemeeiiies

and discipline law clerks for any improper material that

App. 14

does not relate to legal action. Because Prison officials

already review internal inmate mail, evaluating content

on a variety of criteria, Murphy's proposed solution

would entail no additional burden on prison resources.

Similarly, so long as corrections officers who directly

interact with inmates are shielded from the mail, there is

no risk of their being exposed to “alarming” statements

about themselves. See Bradley, 64 F.3d at 1281 (prison's

security concerns could be easily addressed by

“shield[ing] those prison officials who are in direct con-

tact with inmates from reading any insulting remarks that

might be contained in... grievances.”). We conclude that

the impact on prison employees and resources would be

minimal.

4. Availability of easy, obvious alternatives.

As noted in the preceding section, the purposes of

Rule 009 (Insolence) can easily be accommodated by

shielding corrections officers who have direct contact

with inmates from inmate mail. The fact that the prison

officials will read the legal correspondence should be

adequate protection against the implementation of any

plan to interfere with Due Process Hearings (Rule 022).

D. Conclusion.

In light of the weak nexus between the government's

stated penological interest and the category of law clerk

correspondence, as well as the availability of ready alter-

natives, we conclude that the Prison’s conduct here con-

stitutes an “exaggerated response.” See Bradley, 64 F.3d at

App. 15

1280. Accordingly, we reverse the district court’s grant of

summary judgment in favor of Defendants with respect

to Murphy’s First Amendment claim.

In addition, we conclude that summary judgment

should be entered in Murphy’s favor on his First Amend-

ment claim. The relevant facts are undisputed: Murphy is

a law clerk; his letter to Tracy contained legal advice; as

applied to legitimate law clerk correspondence, Rules 009

and 022 are an “exaggerated response” to the Prison’s

interest in security and order, and thus impermissibly

infringe Murphy’s First Amendment rights. Defendants

have failed to identify any issue of material fact that

would defeat this legal conclusion.

Il. Right of Access to the Courts and Due Process

Claims

As noted at the outset, Murphy also argues that the

Prison’s interference with law clerk mail infringes

inmates’ right of access to the courts. See Lewis v. Casey,

116 S. Ct. 2174 (1996); Bounds v. Smith, 430 U.S. 817 (1977).

Because we believe he is entitled to summary judgment

on his First Amendment claim, we do not reach Murphy’s

“right of access to the courts” arguments.

We must, however, address at least a portion of Mur-

phy’s due process claim. Murphy contends that Rule 009

and Rule 022, both as applied to him and on their face,

are sO vague as to violate principles of due process. In

light of our resolution of Murphy’s First Amendment

claim, we do not reach his “as applied” challenge to the

Prison rules at issue.

App. 16

As for Murphy’s facial challenge to Rule 009 and 022,

we begin with the proposition that “[i]t is clearly estab-

lished, both by common sense and precedent, that due

process requires fair notice of what conduct is prohibited

before a sanction can be imposed.” Newell v. Sauser, 79

F.3d 115, 117 (9th Cir. 1996). Consequently, in order to

comply with the dictates of the Due Process Clause, a

prison regulation must provide fair notice of what is

prohibited before a sanction can be imposed. See id.;

accord Rios v. Lane, 812 F.2d 1032, 1039 (7th Cir. 1987);

Adams v. Gunnell, 729 F.2d 362, 368-69 (5th Cir. 1984).

Murphy maintains that Rules 009 and 022 do not

adequately define the conduct that comes within their

scope. This argument fails to persuade — the regulations

certainly provide adequate notice to prisoners gencrally.

Rule 009, for example, applies to “words . . . intended to

harass or cause alarm in an employee.” This definition is

supplemented by the following examples: “Cursing; abu-

sive language, writing or gestures directed to an

employee.” Rule 022, while it lacks a general definition,

provides a laundry list of clear examples: “Intimidating

or tampering with an informant or witness; tampering

with or destroying evidence; interfering with an

employee in the process of writing a conduct report;

making a false statement of misconduct against another

inmate or staff that could result in disciplinary action.”

While clearer language could be imagined, the challenged

regulations are the sort that every prison enforces in

order to maintain order. Murphy has not produced any

authority to support his facial challenge, and we reject it.

App. 17

CONCLUSION

The district court’s decision is REVERSED and the

matter REMANDED with instructions to enter summary

judgment in Murphy's favor and for the crafting of an

appropriate remedy.

KEVIN MURPHY,

-\V-

ROBERT SHAW, Unit Sergeant,

LARRY BEARLEY, Hearings

Officer, MICHAEL MAHONEY

and MYRON BEESON, Bureau

—_—_—_——

App. 18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

CV 95-62-H-CCL

Plaintiff,

ORDER

(Filed Sep. 10, 1997)

Wardens, and RICK DAY,

Department of Corrections

Director,

Defendants.

Before the court is the United States Magistrate

Judge’s Findings and Recommendation regarding Plain-

tiff’s civil rights complaint. The Magistrate Judge recom-

mends that Plaintiff's motion for summary judgment be

denied and Defendants’ motion for summary judgment

be granted as to Plaintiff's claim of denial of access te the

courts but denied as to all other claims. Both Plaintiff and

Defendants have objected to the Magistrate’s findings

and recommendations. This court subjects such objections

to a de nove review. 28 U.S.C. § 636(b)(1).

Plaintiff Kevin Murphy, now paroled from Montana

State Prison (“MSP”) but apparently facing new felony

charges in two counties, was at the time of the filing of

App. 19

this complaint an inmate law clerk at MSP residing in the

high security area. Plaintiff filed his complaint pursuant

to § 1983, individually and on behalf of all inmate law

clerks, to allege that his First Amendment rights of free

speech and right of access to the courts had been violated

by MSP authorities.

Plaintiff's complaint arises from MSP’s censorship of

Plaintiff's inmate-to-inmate correspondence with inmate

Pat Tracy, a Maximum Security Unit inmate. Plaintiff

wrote to Tracy on February 16, 1995, to offer advice and

assistance regarding a pending criminal matter. Tracy had

been charged in state district court in Powell County,

Montana, with felony assault of an MSP guard. Tracy was

already represented by defense counsel, a licensed practi-

tioner, at the time Plaintiff wrote his letter. Because of

Plaintiff's housing assignment in the high security area,

Plaintiff was not authorized by MSP’s written inmate law

clerk policy to represent an inmate in the Maximum

Security Unit. Nevertheless, Plaintiff sent the following

correspondence to Tracy:

Dear Pat:

How ya doing? Sorry i haven't wrote before

now. | been busy fighting my charges. Finally

got everything taken care of. | can’t come up to

max anymore. the lowside [sic] clerks go up

there now. that’s why I haven't called you out

like I used to. I do want to help you with your

case against Galle. It wasn’t your fault and |

know he provoked whatever happened! Don’t

plead guilty because we can get at least 100

witnesses to testify that Galle is an over zealous

guard who has a personal agenda to punish and

harrass [sic] inmates. He has made homo-sexual

App. 20

advances toward certain inmates and that can be

brought up into the record. There are petitions

against him and | have tried to get the Unit

Manager to do something about what he does in

Close II, but all that happened is that [ received

two writeups from him myself as retaliation. So

we must pursue this out of the prison system. I

am filing a suit with everyone in Close | and -

named against him. So you can use that too!

Another point is that he grabbed you from

behind. You tell your lawyer to get ahold [sic] of

me on this. Don’t take a plea bargain unless it's

for no more time.

I seen Damie for a little while when I was

out. I never came over to Butte much. Lenny is

living in lower D still and I don’t speak to him

much. His sister did something to Ted from

what I heard. I don’t know what. Well I will

write again when I get this thing against Galle

finished.

Later. ...

Murph

Pl.’s Mot. For Summ. Judg., Ex. 1. —

Following the MSP policy of reading all inmate corre-

spondence entering the Maximum Security Unit, this let-

ter was read by MSP Correctional Officer Robert Shaw,

who cited Plaintiff for three major misconduct violations:

insolence (Rule 009), interference with due process hear-

ings (Rule 022), and conduct which disrupts or interferes

with the security or orderly operation of the institution

(Rule 025). Hearings Officer Larry Bearley found Plaintiff

guilty of violating Rules 009 and 022, and imposed a

sanction of ten days detention, suspended. Bearley

App. 21

explained that the statement accusing the guard of mak-

ing homosexual advances to an inmate constitutes an

accusation that, if proved true, would result in disciplin-

ary action against the guard. This statement was deemed

to fall within Rule 022, interference with due process

hearings, i.e., making a false statement of misconduct

against another inmate or staff which could result in a

disciplinary action. See Pl.’s Request for Judicial Notice,

Ex. 1, “Inmate Disciplinary Policy,” at 6. It is unclear

whether Plaintiff's offer to find 100 witnesses was con-

templated within this charge. Plaintiff appealed to Defen-

dant Michael Mahoney, who affirmed the Hearings

Officer’s decision. The statement against the guard was

also deemed to constitute insolence (Rule 009), defined

by the Inmate Disciplinary Policy as “words, actions or

other behavior which is intended to harass or cause alarm

in an employee.” Id. at 4. In affirming the finding of

violation and sanction, Mr. Mahoney stated “[t}he letter

you wrote to [sic] most definitely causes alarm in this

employee.” See Pl.’s Mot. for Summ. Judg., Ex. 3.

Plaintiff does not argue that Defendants had no right

to read his inmate-to-inmate correspondence. See Plain-

tiff’s Reply (Docket #50) at 1. Plaintiff does argue that his

correspondence was illegally censored and that he was

illegally disciplined because of the content of his corre-

spondence, both in violation of his First Amendment

rights of free speech and access to courts.

Defendants counter that Plaintiff had no right to give

legal advice to another inmate and that, in any event,

prison regulations allowing censorship and discipline

under these factual circumstances are rationally related to

legitimate penological interests.

App. 22

The Magistrate Judge analyzed Plaintiff's complaint

as consisting of a claim tor denial of access to the courts

asserted on behalf of inmate Tracy and a First Amend-

ment right of free speech. The Magistrate determined that

Plaintiff lacked standing to assert a denial of access to the

courts claim on behalf of Tracy. Plaintitt objects to this

finding of no standing, citing Johnson v. Avery, 393 U.S.

483 (1969), in which an inmate was disciplined tor assist-

ing other inmates with their legal affairs. This court

agrees with Plaintiff that an inmate law clerk does have

standing to assert a denial of access to the courts when he

can show actual injury, such as disciplinary action, How-

ever, Johnson v. Avery qualities the right of an inmate to

provide legal assistance with the proviso that the right

does not exist if the state provides reasonable alterna-

tives.

As for Plaintiff's First Amendment tree speech, the

Mayistrate grounds the analysis in the Turner v. Safly, 482

U.S. 78 (1987), rule that prison administrators may

restrict speech if the restrictions are “reasonably related

to legitimate penological interests.” Turner, 482 U.S. at 89.

The Magistrate found that there was insufficient evidence

of the relationship between the regulations and the

alleged penological interests of MSP. In response, Defen-

dants have submitted the affidavit of Mr. Mahoney, now

Warden of MSP, who asserts that MSP Prison Policy

16-001 concerning inmate correspondence ts directly

related to maintaining order at the institution, security,

and inmate rehabilitation. Mr. Mahoney states that no

inmate, even an inmate law clerk, can be exempt from the

institution’s correspondence policies, because “every

inmate poses a potential risk to the security and safety of

App. 23

a institution through correspondence.” Def.’s Resp. To

agistrate’s Order, Findings ile

ABI , gs, and Recommendation

of Mike Mahoney at 3. on

As tor Plaintiff's due process claim that the prison

correspondence regulations deprived him of his ri rts

arising under the Due Process Clause of the U.S one

tution, the Magistrate determined that Dotendente h 1

not properly argued the point and summary adem -

should be denied on that account. Thus, this cant ef

with the question whether the Due Process lease “of “a

own force” provides protections to Plaintiff that Bair

protect him trom the sanctions imposed for his alleg 4

violations. See Sandin v. Conner, 115 8. Ct. 2293 2302

(1993). In Sandin, the Court opined that the Due eeeees

Clause might protect inmates of its own force when

restraints exceeding their sentences are placed upon them

in such an unexpected manner as to trigger this funda-

mental protection. Defendants respond that this case le

not about the use of improper procedures, but es Ge

right of the prison to censor inmate-to-inmate prs

dence based upon rationally related and legitimate

penological interests.

| In reviewing the Magistrate’s findings and the objec-

tions of the parties, the court has concluded that there “

been made a significant mistake of fact. Plaintiff was net

acting as an inmate law clerk when he wrote and cont the

February 16, 1995, letter to inmate Pat Tracy. First Plain-

tiff was not assigned to serve as inmate Tracy's law clerk

by the prison librarian, as is required by written oli

See Ex. 3 at VI(1), (3), “Inmate Legal Clerk Ponnpumn* a

Request for Judicial Notice. Second, Plaintifé wes |

permitted to work for inmate Tracy because both south

App. 24

resided in the high security side of the prison. Third,

Plaintiff was not trained as an inmate law clerk to handle

criminal defense cases. Fourth, as Plaintiff clearly knew,

inmate Tracy was already represented by defense coun-

sel.

This latter point is significant, because it shows that

the State had otherwise provided inmate Tracy with rea-

sonable representation, clearly precluding any denial of

access to the courts claim. In fact, Plaintiff’s letter could

easily be construed as an improper and unethical interfer-

ence with the attorney-client relationship. In any event,

this court finds that Plaintiff was not acting in his role of

inmate law clerk when he wrote and sent the February 16,

1995, letter to inmate Pat Tracy, but had clearly exceeded

the scope of his appointment by intruding upon a subject

matter he was not trained to handle and by imposing

himself upon a client he had no permission or authority

to contact.

Given this finding, Plaintiff's claims must be

analyzed without consideration of any privilege that law

clerk status might provide. It is clear that Plaintiff's claim

for denial of access to the courts fails. Likewise, Plain-

tiff’s claim for violation of his First Amendment freedom

of speech similarly fails in light of the legitimate

penological interests asserted by Warden Mahoney. Plain-

tiff’s due process claims under the force of the Due

Process Clause do not satisfy the Sandin standard that the

restraint exceed the inmate’s sentence in an unexpected

manner.

Plaintiff’s First Amendment right to assist other

inmates is, in this instance, inconsistent with his status as

App. 25

a prisoner and with the legitimate penological objectiv

of MSP. See Pell v. Procunier, 417 U.S. 817 saa (1000

Plaintiff's claim of overbreadth and veguense of ha

regulations is based upon a First Amendment right and ;

Due Process right, both of which are limited by the legiti-

mate penological objectives of the prison. Ustrak v Fai -

man, 781 F.2d 573, 580 (7th Cir. 1986); Sandin v. Cuno nt

S. Ct. 2293 (1995). After applying the four-part test of

Turner v. Safley, the court finds that there is a valid

rational connection between the prison inmate ooomn --

dence policy and the objectives of prison order ares

and inmate rehabilitation. The court finds that the ati

native proposed by Plaintiff, that communications

between Plaintiff amd inmate Tracy may be read but oth-

erwise considered privileged, is unacceptable and would

have a dangerous impact on guards and other inmates

The prison’s is

are lacking. |

In another matter, the court deems the Magistrate’s

order denying class certification to be a seutapenbiien,

The Plaintiff’s request for class certification should be

denied, however, because, on the facts of this cane and a

purposes of this litigation, Plaintiff himself does not

belong to the class of inmate law clerks. Therefore, Plain-

tiff cannot satisfy the requirements for certification of a

class action under Fed. R. Civ. P. 23.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ motion

or summary judgment is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's motion for

class certification is DENIED.

App. 26

IT IS FURTHER ORDERED that Plaintiff’s motion for

summary judgment is DENIED, Plaintiff's complaint is

DISMISSED, and all relief is denied.

The Clerk is directed forthwith to notify the parties

and Magistrate Judge Leif B. Erickson of entry of this

order.

Done and dated this 10th day of September, 1997.

/s/ Charles C. Lovell

CHARLES C. LOVELL

United States District Judge

App. 27

United States District Court

HELENA DIVISION DISTRICT OF MONTANA

KEVIN MURPHY JUDGMENT IN A

ROBERT SHAW, Unit

Sergeant, LARRY EARLEY,

CIVIL CASE

CASE NUMBER:

CV-95-62-H-CCL

Hearings Officer,

MICHAEL MAHONEY

and MYRON BEESON,

Bureau Wardens, and Rick

Day,

Department of

Corrections Director

[X]

Jury’Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

Decision by Court. This action came to trial or

hearing before the Court. The issues have been tried

or heard and a decision has been rendered. Defen-

dants’ motion for summary judgment having been

granted and Plaintiff's motion for summary judg-

ment having been denied IT IS ORDERED AND

ADJUDGED that Plaintiff take nothing, that the

complaint be dismissed, and all relief is denied.

September 23, 1997 Lou Aleksich, Jr.

Date

Clerk

Traci Hargreaves

(By) Deputy Clerk

App. 28

Honorable Leif B. Erickson

Federal Magistrate Judge

Missoula Division

P O Box 7219

Missoula, MT 59807-7219

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

KEVIN MURPHY, )

aintift

a = CAUSE NO.

vs. ) CV 95-62-H-CCL

ROBERT SHAW, Unit ORDER AND

Sergeant, LARRY FINDINGS AND

BEARLEY, Hearing ) RECOMMENDATION:

Officer, MICHAEL OF U.S. MAGISTRATE

MAHONEY and MYRON JUDGE

BEESON, Bureau Wardens, ( (Filed

ond CLR DNS. — Febr. 26, 1997)

Department of Corrections ‘

Director, ‘

Defendant. )

This matter comes before the Court on the pasties

cross-motions for summary judgment and Plaintiff's

Motion to Certify Class. The Court, having reviewed the

briefs and being fully advised, now hereby enters the

following Findings and Recommendation under 28 U.S.C.

§ 636(b)(1)(B):

App. 29

RECOMMENDATION

1. Plaintiff's cross-motion for summary judgment

should be DENIED.

access to the courts. Defendants’ cross-motion for sum-

mary judgment should be DENIED in all other particu-

lars.

NOW, THEREFORE, IT IS ORDERED that the Clerk

shall serve a copy of the Findings and Recommendation

of the United States Magistrate Judge upon the parties.

The parties are advised that pursuant to 28 U.S.C. § 636,

any objections to these findings must be filed with the

Clerk of Court and copies served on Opposing counsel

within ten (10) days after receipt hereof, or objection is

waived.

IT IS FURTHER ORDERED that Plaintiff’s Motion

to Certify Class is DENIED.

DATED this 26th day of February, 1997.

/s/ Leif B. Erickson

United States

Magistrate Judge

RATIONALE

I. BACKGROUND

The subject matter of this action revolves around

Plaintiff's attempted written communication with another

Montana State Prison inmate, Pat Tracy. In early 1995

Tracy was accused of assaulting correctional officer Galle.

Following the assault Tracy was moved to the maximum

Defendants’ cross-motion for summary judgment

should be GRANTED as to Plaintiff’s claim of denial of

mre te Ff

App. 30

security section of Montana State Prison. The assault gave

rise to felony criminal charges against Tracy in Powell

County, Montana, to which Tracy ultimately pled guilty.

At the time of the assault Plaintiff was an inmate law

clerk in the Maximum Security Unit of Montana State

Prison. He had previously assisted Tracy in unrelated

legal matters. Apparently Tracy requested assistance from

Plaintiff, but the law librarian advised him that high

security inmates were no longer allowed to visit the

Maximum Security Unit. A low security inmate law clerk

made arrangements to see Tracy, however Tracy refused

to speak to him because the law clerk allegedly had

developed a reputation for disclosing information to

others.

On February 16, 1995, Plaintiff wrote a letter to Tracy

which reads as follows:

How ya doing? Sorry I haven’t wrote before

now. I been busy fighting my charges. Finally

got everything taken care of. I can’t come up to

max anymore, the lowside clerks go up there

now, that’s why I haven't called you out like I

used to. I do want to help you with your case

against Galle. It wasn’t your fault and I know he

provoked whatever happened! Don’t plead

guilty because we can get at least 100 witnesses

to testify that Galle is an over zealous guard

who has a personal agenda to punish and harass

inmates. He has made homo-sexual advances

towards certain inmates and that can be brought

up into the record. There are petitions against

him and I have tried to get the Unit Manager to

do something about what he does in Close II,

but all that happened is that I received two

writeups from him myself as retaliation. So we

App. 31

must pursue this out of the prison system. | am

filing suit with everyone in Close I and II named

against him. So you can use that too!

Another point is that he grabbed you from

behind. Yeu-+tell your lawyer to get ahold of me

on this. Don’t take a plea bargain unless it’s for

no more time.

I seen Damie for a little while when I was

out. | never came over to Butte much. Lenny is

living in lower D still and I don’t speak to him

much. His sister did something to Ted from

what I heard. I don’t know what. Well | will

write again when I get this thing against Galle

finished.

Later... .

Defendant Robert Shaw, a correctional officer, inter-

cepted this letter, read it, and gave Plaintiff three disci-

plinary violation reports for writing and sending the

letter. Shaw claimed plaintiff violated Rule 009 (Inso-

lence), Rule 022 (Interference with Due Process Hear-

ings), and Rule 025 (Conduct Which Interferes or disrupts

the Security or Orderly operation of the Institution).

Defendant Larry Bearley found Plaintiff guilty of violat-

ing Rules 009 and 022, and sanctioned him to ten days

detention, all suspended. Defendant Mahoney denied

Plaintiff's appeal of the disciplinary violations.

In his Complaint, Plaintiff claims that: (1) Defen-

dants’ actions in disciplining law clerks based upon the

content of their communications violates the First

Amendment to the United States Constitution, (2) Defen-

dants’ actions abridge the rights of inmates to access the

courts by denying them the assistance of an inmate law

App. 32

clerk, (3) Defendants’ actions abridge the rights of

inmates to seek a writ of habeas corpus pursuant to 28

U.S.C. § 2254, (4) Defendants’ enforcement of disciplinary

Rule 009 deprived Plaintiff of his right to due process and

his right to free speech, and (5) Defendants’ enforcement

of disciplinary Rule 022 deprived Plaintiff of his right to

due process and free speech.

For his relief Plaintiff seeks an order from this Court

which declares (1) disciplinary Rules 009 and 022 uncon-

stitutionally vague and overbroad and in violation of the

First and Fourteenth Amendments, and (2) the Defen-

dants’ practice of disciplining law clerks based on the

content of their advice to other inmates violates the First

Amendment. Plaintiff also seeks an injunction which pro-

hibits the Defendants from (10 enforcing Rule 009, (2)

enforcing Rule 022, and (3) disciplining inmate law clerks

for communications with inmate clients.

Il. APPLICABLE LAW

A. Summary Judgment

A party is entitled to summary judgment where the

documentary evidence produced by the parties permits

only one conclusion. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251 (1986). On a motion for summary judgment,

this Court must determine whether a fair-minded jury

could return a verdict for the nonmoving party. Id. at 252.

The party seeking summary judgment bears the ini-

tial burden of informing the Court of the basis for its

motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions

App. 33

on file, together with the affidavits, if any, which it

believes demonstrate the absence of any genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 217, 323

(1986).

Where the moving party has met his initial burden

with a properly supported motion, the party opposing

the motion “may not rest upon the mere allegations or

denials of his pleading, but . . . must set forth specific

facts showing that there is a genuine issue for trial.”

Anderson, at 248. The nonmoving party may do this by

use of affidavits (including his own), depositions,

answers to interrogatories, and admissions. Jd. Where the

moving party has not met his initial burden the motion

should be denied regardless of the nonmoving party’s

response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994).

In evaluating the appropriateness of summary judg-

ment the Court must first determine whether a fact is

material; and if so, it must then determine whether there

is a genuine issue for the trier of fact, as determined by

the documents submitted to the Court.

As to materiality, the applicable substantive law will

identify which facts are material. Only disputes over facts

that might affect the outcome of the suit under the gov-

erning law will properly preclude entry of summary

judgment. Factual disputes which are irrelevant or unnec-

essary to the outcome are not considered. Anderson, at

248.

App. 34

“Convicted prisoners do not forfeit all constitutional

protections by reason of their conviction and confinement

in prison.” Bell v Wolfish, 441 U.S. 520, 545 (1979). For

example, prisoners retain protections afforded by the

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

Regulations impinging on such rights shall be analyzed

under the reasonableness standard of Turner v. Safley, 482

U.S. 78, 96 L. Ed. 2d 64 (1987).

In Turner the Supreme Court held that when a prison

regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate

penological interests. Turner, 482 U.S. at 89, 96 L. Ed. 2d at

79. In accordance with Turner, the courts must consider

several factors in determining the reasonableness of a

valid, rational

prison regulation. First, there must be a na

connection” between the prison regulation and the legiti-

mate governmental interest put forward to justify it.

Turner, 96 L. Ed. 2d at 79, (quoting Block v. Rutherford, 468

U.S. 576, 586 (1984). Second, the court must consider

whether there are alternative means of exercising the

rights that remain open to prison inmates, keeping in

mind the judicial deference owed to correction officials.

Id. The third consideration “is the impact accommodation

of the asserted constitutional right will have on guards

and other inmates, and on the allocation of prison

resources generally.” Id. 96 L. Ed. 2d at 79-80. “Finally, the

absence of ready alternatives is evidence of the rea-

sonableness of a prison regulation.” Id. at 80. The regula-

tions must not be an “exaggerated response” to concerns

in prison. Id.

App. 35

Ill. DISCUSSION

It is clear that convicted prisoners have a fundamen-

tal right of meaningful access to the courts. Bounds v.

Smith, 430 U.S. 817 (1977). The right is necessary for

inmates to “attack their sentences, directly or collaterally,

and in order to challenge the conditions of their confine-

ment.” Lewis v. Casey, 135 L. Ed. 2d 606, 620 (1996).

However, “[blecause Bounds did not create an abstract,

free-standing right to a law library or legal assistance, an

inmate cannot establish relevant actual injury simply by

establishing that his prison’s law library or legal assis-

tance program is sub-par in some theoretical sense.”

Lewis v. Casey, 135 L. Ed. 2d at 618. “Insofar as the right

vindicated by Bounds is concerned, ‘meaningful access to

the courts is the touchstone,’ Bounds, 430 U.S. at 823, 97 S.

Ct. at 1495 (internal quotation marks omitted), and the

inmate therefore must go one step further and demon-

strate that the alleged shortcomings in the library or legal

assistance program hindered his efforts to pursue a legal

claim.” Lewis v. Casey, 135 L. Ed. 2d at 618.

While Lewis v. Casey deals with claimed inadequacies

in a law library and legal assistance program, it nonethe-

less requires inmates to demonstrate relevant actual

injury. In this case Murphy has not shown any actual

injury to himself, or that Defendants have hindered his

efforts to pursue a legal claim. Significantly, Plaintiff does

not even allege that he has a claim to pursue. Instead, his

claim is based upon the theory that the fear of discipline

impermissibly burdens his right of meaningful access to

the courts by its chilling effect on the content of his

App. 36

written communications with other inmates. For the same

reason that an inmate cannot establish relevant actual

injury simply by establishing that a library or legal assis-

tance program is sub-par in some theoretical sense, this

Court will not permit Plaintiff to establish relevant actual

injury simply by claiming that the challenged prison reg-

ulations have, in some theoretical sense, a chilling effect

on the content of written prisoner communications.

Therefore, absent an actual injury Plaintiff lacks standing

to pursue a claim of a denial of his right of access to the

courts.

Although Plaintiff cannot show any actual injury to

his right of access to the courts, he also argues that he can

pursue a claim for a denial of access to the courts on

behalf of Tracy. However, the cases Plaintiff relies on in

support of this theory either involve an inmate who was

acting only on his own behalf, or require that the court

find that the plaintiff's assistance was the only resource

available to the other inmates. See Gibbs v. Hopkins, 10

F.3d 373, 378-79 (6th Cir. 1993) (only resource available);

Vaughn v. Trotter, 516 F. Supp. 886, 891-92 (M.D. Tenn.

1980) (must show absence of alternatives for other

inmate); Johnson v. Avery, 393 U.S. 483, 490 (1969). The

Court is not aware of any controlling or persuasive legal

authority for asserting a right of access to the courts on

behalf of a third party absent the showing of other

required circumstances. The Court acknowledges that the

Ninth Circuit has employed broad language with regard

to an inmate’s right of access to the courts on “behalf” of

other inmates. Navarette v. Enomoto, 536 F.2d 277, 280 (9th

Cir. 1976), rev'd on other grounds Procunier v. Navarette 434

U.S. 555 (1978). However, although the plaintiff in

App. 37

Navarette was a law librarian, the facts of the case indicate

that the plaintiff was acting only on his own behalf.

By his communication to Tracy, Plaintiff was not

attempting to pursue any legal claims or defenses on his

own behalf. Rather, he was allegedly attempting to assist

Tracy in formulating a defense to criminal charges filed

against Tracy. Accordingly, the Court finds that Plaintiff

lacks standing to assert Tracy’s access to the courts claim.

See, e.g. Tuggle v. Barksdale, 641 F. Supp. 34, 36 (W.D. Tenn.

1985) (“one inmate does not have the standing to assert

the separate constitutional right of another inmate to [his]

access to the courts[.]”); Gassler v. Rayl, 862 F.2d 706,

707-708 (8th Cir. 1988); Schenck v. Edwards, 921 F.Supp.

679, 682-683 (E.D. Wash. 1996).

B. First Amendment

In addition to Plaintiff's claim of denial of access to”

the courts, he asserts that Defendants have interfered

with his First Amendment right to assist other inmates.

Although a prisoner does not have the full constitutional

rights of a person who is not incarcerated, it is clear that a

prison inmate retains those First amendment

rights that are not inconsistent with his status as

a prisoner or with the legitimate penological

objectives of the corrections system.

Pell v. Procunier, 417 U.S. 817, 822 (1974). Accordingly,

prison administrators may impose restrictions on the

freedom of speech, but the restrictions must be “reason-

abiy related to legitimate penological interests.” Turner v.

Safley, 482 U.S. 78, 89 (1987).

App. 38

The Ninth Circuit Court of Appeals has held that

“prison officials may not punish an inmate merely for

using ‘hostile, sexual, abusive or threatening’ language in

a written grievance.” Bradley v. Hall, 64 F.3d 1276, 1282

(9th Cir. 1995).' The court went through the four-part

analysis set forth above as required by Turner v. Safley,

482 U.S. 78 (1987) to determine if the prison regulations at

issue in Bradley unconstitutionally infringed upon the

inmate's right to petition the government for redress of

grievances. The court determined that punishing an

inmate for the content of his written grievance was an

exaggerated response to prison concerns. Bradley, 64 F.3d

at 1281. The court left open the possibility that there may

be situations in which prison officials may properly disci-

pline inmates for criminal threats contained in written

grievances. Id.

Without the aid of affidavits of prison personnel or

any other supporting material Defendants argue, in con-

clusory fashion, that the confiscation of the offending

letter and disciplinary action against Plaintiff are both

rationally related to a legitimate penological interest.

Moreover, the communication at issue is between inmates

' In Bradley the court analyzed the facts primarily under the

right of access to the courts and the First Amendraent right to

petition the government to redress grievances. | radiey 64 F.3d at

1280. However, freedom of speech issues were aiso implicated

Id. at 128i, and the analysis of Turner is the same. See Rios v.

Lane, 812 F.2d 1032 (7th Cir. 1987). Although in this case

Plaintiff's right to petition the government for redress of

grievances is not implicated, his First Amendment rights of

freedom of expression and association are implicated by

Defendants’ actions.

App. 39

in the highest security section of Montana State Prison

where the need for strict control is utmost.

Plaintiff, of course, argues to the contrary that Defen-

dants have failed to show that the conduct at issue is

rationally related to a legitimate penological objective.

Plaintiff is an inmate law clerk and the subject of his

letter concerns advice to another inmate regarding a

defense to felony assault charges. The Court is faced with

the question of determining whether the mere fact that

the letter purportedly involves advice to another inmate

regarding a defense to felony charges entitles the commu-

nication to greater protection. See Rizzo v. Dawson, 778

F.2d 527, 531 (9th Cir. 1985) (recognizing First .smend-

ment right to assist another inmate in vindicating civil

rights).

While the district court in Bradley resolved the matter

on summary judgment it also had the benefit of affidavits

of prison personnel, correctional institution experts, and

inmates. Defendants have not presented any affidavits on

the issue of the relationship between the regulations and

the alleged penological interests of the Montana State

Prison. Consequently, the Court finds that Defendants

have not met their burden of establishing the absence of a

genuine issue of material fact, and the Court is unable to

determine if the challenged regulations permissibly

infringe upon Plaintiff's First Amendment rights under

the Turner standard set forth above. Therefore, their

motion should be denied. See Little v. Liquid Air Corp., 37

F.3d 2069 (Sth Cir. 1994), supra.

App. 40

Similarly, Plaintiff has not met his initial burden in

his motion to show the absence of a genuine issue. There-

fore, he is not entitled to summary judgment.

C. Overbreadth and Vagueness

Plaintiff contends the regulations at issue are both

vague and overbroad. In his Complaint, Plaintiff presents

his legal cause of action on the basis that the regulations

violate both his First Amendment rights and his due

process rights. Compl. at 4-5. However, in his prayer for

relief Plaintiff seeks a declaratory judgment only on the

basis of his First Amendment rights. Compl. at 5. Sim-

ilarly, Plaintiff's arguments on this issue in his briefs on

the pending motions are based only on the First Amend-

ment theory. He states that he “has not claimed the loss of

a liberty interest nor a denial of due process as his basis

for standing . . . [, but instead he] alleges abridgment of

First amendment rights to free speech and access to the

courts.” Plaintiff's Reply at 5. Defendants, on the other

hand, argue for summary judgment in their favor based

on both the First Amendment and due process theories.

The Court acknowledges that the vagueness and

overbreadth arguments can fall under either the First

Amendment, or the due process clause, and the legal

theories are independent of each other. See Rios v. Lane,

812 F2d 1032, 1039 (7th Cir. 1987) (completely distin-

guishable and independent theories). Accordingly, the

Court will address the theories separately.

App. 41

1. Due Process

As a threshold issue, Defendants argue that in light

of the “atypical and significant hardship” analysis under

Sandin v. Conner, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995),

Plaintiff has no standing to complain about the sanction

imposed against him for violation of the subject regula-

tions, and therefore he has no due process interest to

assert. However, the principles expressed in Sandin on

which Defendants rely are not controlling in the facts of

this case. The specific question addressed by Sandin was

under what circumstances do “state prison regulations

afford inmates a liberty interest protected by the Due

Process Clause.” Sandin, 115 S. Ct. at 2295. In addition to

the “atypical and significant hardship” analysis, the

Court also addressed the question of whether the facts of

the case invoked protections provided by the Due Process

Clause “of its own force[.]” Sandin, at 2300, 2302. There-

fore, even under the authority of Sandin, the court must

additionally consider whether the Due Process Clause,

“of its own force,” provides protections to the inmate. See

Higgason v. Farley, 83 F.3d 807, 809 (7th Cir. 1996). See also

El-Amin v. Tirey, 817 F. Supp. 694 (W.D. Tenn. 1993)

(analyzing prison regulations under the Due Process

Clause); Wolfel v. Morris, 972 F.2d 712 (6th Cir. 1992)

(analyzing prison regulations under the Due Process

Clause).

In this case, Plaintiff does not argue that he has a

liberty interest arising from the regulations in question.

Rather, Plaintiff argues that the regulations deprived him

of his rights which arise from the U.S. Constitution.

Accordingly, the Court construes Plaintiff’s claims as

App. 42

being presented on the basis that he has certain protec-

tions of his constitutional rights provided by the Due

Process Clause of its own force.

Because Defendants argue that they are entitled to

summary judgment based only on the “atypical and sig-

nificant bardship” < nalysis of Sandin, they have not pre-

sented any legal argument in support of summary

judgment based on the Due Process Clause of its own

force. Accordingly, Defendants have not met their initial

burden and are not entitled to summary judgment on

their due process theory.

2. First Amendment

Plaintiff contends that the subject regulations are

both vague and overbroad in violation of the First

Amendment. Although these legal theories require a par-

ticular analysis, Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362

(1982).

the concepts of “overbreadth” and “vagueness”

in the jurisprudence of the First Amendment

were devised in order to prevent the slightest

discouragement of free speech, and therefore

have only limited relevance to a sphere where

the right of free speech is limited.

Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986) (apply-

ing concepts in challenge to prison regulation). Ulti-

mately, the Court must still find that the subject

regulations violate Plaintiff's First Amendment rights

after analyzing the four-part test set forth in Turner v.

Safley, 482 U.S. 78 (1987). See Rios v. Lane, 812 F.2d 1032,

App. 43

1035-36 (7th Cir. 1987) (inmate retains only those First

Amendment rights that are not inconsistent with legiti-

mate penological objectives).

However, in addressing the analysis under Turner set

forth above, Plaintiff has not met his initial burden of

showing the absence of any genuine issue of material

fact. Accordingly, the Plaintiff’s motion should be denied.

See Little v. Liquid Air Corp., supra.

Similarly, as indicated above, Defendants have not

met their initial burden of establishing that the regula-

tions are reasonably related to legitimate penological

interests under Turner. Accordingly, Defendants are not

entitled to summary judgment.

D. Certification as a Class Action

Plaintiff seeks certification of this action as a class

action under Fed. R. Civ. P. 23. Plaintiff argues that the

proposed class consists of “all current and future inmates

who may rely on insnate law clerks or ‘jailhouse lawyers’

and all current and future inmates who are inmate law

clerks or ‘jailhouse lawyers’.” Plaintiff's Motion to Certify

Class at 1.

The Court finds that Plaintiff's motion suffers from

two defects. First, Plaintiff is not currently a member of

the class of inmates who may rely on other inmate law

clerks because none of his present claims are based on his

reliance on another inmate law clerk. Article III of the

U.S. Consiitution, which requires an actual “case or con-

troversy,” also requires that when a suit takes the form of

a class action, the named plaintiff must share the same

App. 44

injury. DePree v. United States, 559 F.2d 1151, 1153 (9th Cir.

1977). “A litigant must be a member of the class which he

or she seeks to represent at the time the class action is

certified|.]” Id. (quoting Sosna v. lowa, 419 U.S. 393, 403,

95S. Ct. 553, 559, 42 L. Ed. 2d 532 (1975)). Plaintiff is not

presently a member of this class of inmates.

Second, Plaintiff has not established that the class of

current and future inmates who are inmate law clerks or

“jailhouse lawyers” is so numerous that joinder of all

members is impracticable as required by Fed. R. Civ. P.

23(a)(1). Defendants indicate that there are presently only

about 6 inmate law clerks at the Montana State Prison.

Defendants’ Response at 3.

Accordingly, Plaintiff has not satisfied the require-

ments for the class certification of this action and his

motion is denied. -

cc: Jeffrey T. Renz

Attys. for Dept. of Corrections

App. 45

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN MURPHY,

Plaintiff-Appellant, No. 97-35989

D.C. No.

CV-95-00062-CCL

Vv.

ROBERT SHAW, LARRY

BEARLEY, MICHAEL

MAHONEY, MYRON BEESON,

and RICHARD S. DAY,

Defendants-Appellees.

ORDER

(Filed Jan. 7, 2000)

eee ee eee ee ee”

Before: B. FLETCHER, REINHARDT and THOMAS, Cir-

cuit Judges

The panel has voted to deny appellees’ petition for

rehearing and to reject the petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing is denied and the petition

for rehearing en banc is rejected.

App. 46

February 16, 1995

Dear Pat:

How ya doing? Sorry I haven't wrote before now. |

been busy fighting my charges. Finally got everything

taken care of. I can’t come up to max anymore. The

lowside clerks go up there now. that’s why I haven't

called you out like | used to. | do want to help you with

your case against Galle. It wasn’t your fault and | know

he provoked whatever happened! Don't plead guilty

because we can get at least 100 witnesses to testify that

Galle is an over zealous guard who has a personal agenda

to punish and harrass [sic] inmates. He has made homo-

sexual advances toward certain inmates and that can be

brought up into the record. There are petitions against

him and | have tried to get the Unit Manager to do

something about what he does in Close II, but all that

happened is that I received two writeups from him

myself as retaliation. So we must pursue this out of the

prison system. | am filing a suit with everyone in Close |

and II named against him. So you can use that too!

Another poiont [sic] is that he grabbed you from

behind. You tell your lawyer to get ahold [sic] of me on

this. Don’t take a plea bargain unless it’s for no more

time.

I seen Damie for a little while when | was out. I never

came over to Butte much. Lenny is living in lower D still

and I don’t speak to him much. His sister did something

to Ted from what I heard. I don’t know what. Well | will

write again when I get this thing against Galle finished.

App. 47

Later. ...

Murph

From Inmate Kevin Murphy

Legal Clerk

To: Pat Tracy

Max

Insti. Mail

App. 48

JEFFREY T. RENZ

SHARON M. NOEL, Legal Intern

Montana Defender Project

School of Law

University of Montana

Missoula, Montana 59812

(406) 243-4823

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

KEVIN MURPHY, individually ) No. CV 95-62-H-CCL

an on behalf of other persons )

similarly situated ) AFFIDAVIT OF

Plainti ) PAT TRACY

aintiffs,

-V-

ROBERT SHAW, et al.,

Defendants.

eee eee ee eee”

STATE OF MONTANA )

' -SS

County of Powell )

Before the undersigned, a notary public for the State

of Montana, personally appeared Pat Tracy, who, having

been duly sworn, on his oath deposes and says that this

affidavit is made on his personal knowledge, and that if

he were to appear as a witness in the above-captioned

matter, he would competently testify as follows:

1. | am an inmate confined at Montana State Prison,

Deer Lodge, Montana.

App. 49

2. I am from Butte, Montana.

3. I am housed on the high security side of Montana

State Prison and was housed there in late 1994, early

1995.

4. On August 11, 1994, I was charged by information

with felony assault.

5. On August 11, 1994, | asked for my own attorney.

6. On August 25, 1994, | was appointed counsel.

7. 1 requested the legal assistance of Kevin Murphy, an

inmate law clerk through Dave Beatty, prison librarian,

through prison kites, and by passing the word to Murphy.

8. | wanted Kevin Murphy’s assistance with those

charges pending against me and with framing the issues.

9. Kevin Murphy has provided me with legal assistance

many times dating back to the mid-1980's including an

appeal to the 9th circuit.

10. I was told that I could only see the low side law

clerks. A low side law clerk came to speak with me. I

refused to talk to him because this law clerk had a reputa-

tion for disclosing information obtained from meeting

with inmates.

11. I never received the February 16, 1995 letter sent by

Kevin Murphy to me and did not get a copy of it until

June 1996.

12. To avoid the risk of a persistent felony offender

enhancement by the County Attorney, I pled guilty to

felony assault.

App. 50

FURTHER AFFIANT SAYTH ‘NOT.

DATED this 12th day of July, 1996.

/s/ Pat Tracy

Pat Tracy

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.