Opposition Brief — Monge v. Straub

% Supreme Court, U.S,

EBLUED

~~) =f}. «OCT «26 Ber

>) |

No. 87-375 JOSEPH oe. JR.

IN THE :

Supreme Court of the United States

OCTOBER TERM 1987

GEOFFREY MONGE, AS SHERIFF OF SARASOTA COUNTY

FLORIDA; MAX FRIMBERGER, AS CAPTAIN OF THE

SARASOTA COUNTY JAIL; and THE CHAIRPERSON OF

THE SARASOTA COUNTY BOARD OF COUNTY

COMMISSIONERS,

Petitioners,

Vs.

MICHAEL DENNIS STRAUB,

Respondent.

RESPONSE TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FORTHE ELEVENTH CIRCUIT

GEORGE K. RAHDERT, Esq. *

RAHDERT,ACOSTA & DICKSON

233 Third Street, N.

St. Petersburg, Florida 33701

(813) 823-4191

M. DAVID SHAPIRO, Esq.

BAKER & HOSTETLER

1300 Bamett Plaza

Post Office Box 112

Orlando, Florida 32802

(305) 841-1111

* Counsel of Record

Central Repro, Inc. Orlando, Florida 52801 (303-843-0707)

i.

QUESTIONS PRESENTED

7

Whether the court of appeals was incorrect when it heid that the

finding of the district court that the Respondent was indigent were

not clearly erroneous.

Whether a pretrial detainee or inmate is entitled to access to

legal materials if the government does not provide legal assistance.

Qs

TABLE OF CONTENTS

| Page

Ue PIEIIN ED. cccncscessncscesosscscecsscconsesseconscese 1

RY a ss pein sdcnesiascsenencarsssocssconassesnssucans 4

I sas cc sncsevetnessnscnensseianssssshascouestecesensesae 5

cs aselesalbnbiechuensannbanntanwtenateoreionenessacsae 5

REASONS FOR DENYING THE PETITION................. 9

1. FACTUAL FINDINGS MUST BE CLEARLY

ERRONEOUS BEFORE AN APPELLATE

COURT CAN REVERSE THEM...................005 9

2. THE DECISION BELOW FOLLOWED THIS

COURT’S MANDATE IN BOUNDS V. SMITH.. 10

3. THE DECISION BELOW COMPORTS WITH

EVERY DECISION IN EVERY CIRCUIT.......... 12

iti sinscavaniiavensasscncisssenstbusonatiresonscsenseens 17

aaa ial iii |

-4-

TABLE OF CITATIONS

Cases: Page

Boddie v. Connecticut,

ME TE BIE Oe te Gs Fe ITB Piciescrcccsasrsvccnnancorensarcsecs 15

Bonner v. City of Prichard,

i mm Ge Fee Vw Ay | ) SReuneepnrnrrenrnmnnrerne 15

Bounds v. Smith,

ee a vicsttteencenesenenresnssnncrcsesesanrenstomivene passim

Chambers v. Baltimore & Ohio Railroad Co.,

y Bio em § Bo Ee Ty |) SR nNeeeeee eran 15

Corpus v. Estelle,

~ ) 9 Ae fT. Ye Re.) 5) RR eeenene enna 13,15

Cruz v. Hauck,

G27 F.. 2d 710 (Sela Cir. 1960)...........00c.ccccescscocrcorcsscesnanens 13

DiBartolomeo v. State,

450 So. 2d 925 (Fla. 4th D.C.A, 1984)........cccceeceeeeeeeeeeees 8

Enrique v. State, : )

408 So. 2d 635 (Fla. 3d D.C.A. 1981)........ccecceeeeeeceeeeeee 8

Hooks v. Wainwright :

rynt de 97 Si) Ce Re) RR eeerresmnererens 14

Jackson v. Procunier,

( i Re & fg . 2a Re, | RR onenmpuprnonnnnnne 13,15 )

Morrow v. Harwell,

768 F. 2d 619 (8th Cir. 1985).........scssscssscsscosessscsesseeseeeedbol4 |

Roemer v. Board of Public Works of Maryland,

iiicithaiitenntcenenininbeiscnonenincnsiccnanicmnasscninn 9

Ryland v. Shapiro,

FE re ee eB icccnceskecccseiecsnncrccncssctencensesen 13 |

United States v. Chatman,

584 F. 2d 1358, 1360 (4th Cir. 1978),

cert. denied, 482 U.S. 911 (1979)...............0.-cscecccorcsseseeses 14

United States, ex rel. George V. Lane,

FAB FB Fa Oe ee Ta as vveinnsncsnnnsrenccrccnsccencssensesnnnnes 15

United States v. Wilson,

690 F. 2d 1267 (9th Cir. 1982)

a, MEE MD ATT, GIN E C EP hv csccsiescnnnnasencescnncnnnrunsnde 15

Wilson v. Zarhadnick,

I I . necnansneseatcesecunsansanesetuiia 13

Miscellaneous:

Oe I I a vnescicsveantgsniatarensicnsntancen &

Oe eh I I a cicisscncnsisacsracensnnrsasiinancios 8

a hi. sashsndlasasnianacdenbadicatons 7

IN THE

Supreme Court of the United States

OCTOBER TERM 1987

NO. 87-375

GEOFFREY MONGE, AS SHERIFF OF SARASOTA COUNTY

FLORIDA; MAX FRIMBERGER, AS CAPTAIN OF THE

SARASOTA COUNTY JAIL; and THE CHAIRPERSON OF

THE SARASOTA COUNTY BOARD OF COUNTY

COMMISSIONERS,

Petitioners,

Vs.

MICHAEL DENNIS STRAUB,

Respondent.

RESPONSE TO THE PETITION FOR A WRIT OF

CERTIORARI TO THEUNITED STATES COURT

OF APPEALS FORTHE ELEVENTH CIRCUIT

MICHAEL DENNIS STRAUB hereby responds to the petition

for writ of certiorari to review the judgement and opinion of the

United States Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Petitioners’ App. 1a-17a) is

reported at 815 F. 2d 1467. The opinion of the district court petition-

ers’ App. 18a-26a) is not reported.

STATEMENT

1. On March 5, 1982, the Respondent, MICHAEL DENNIS

STRAUB, was arrested for the armed robbery of a North Port bank.

He remained in Sarasota County Jail until September of 1982 when

he was transferred to Florida State Prison. During the course of the

next three months, the Respondent made several unsuccessful

attempts to obtain assistance of the Public Defender whom he

believed had been appointed to his case. Straub, Tr. 7-10.

Mie

Plaintiff's Exhibit 12B. Concurrently, he made several requests to

use a law library and to have legal materials brought to him by

members of his family to begin working on his own defense.

Straub, Tr. 14, 16, 17, 27.

Likewise, the Respondent met with at least two private attomeys

in an effort to secure representation in the criminal matter. Straub,

Tr. 110-114. Testimony at trial revealed that the cost to acquire

private representation was beyond the Respondent’s means.

Straub, Tr. 110.' Prior to his first meeting with appointed counsel,

the Respondent made several requests to use the law library in the

criminal case. Several months after Respondent’s incarceration,

Respondent was served with a summons for the civil forfeiture of

his automobile, naming him, as well as the automobile. At the time

of the Respondent’s incarceration, there was no library in the jail,

thus requiring transportation to the County Law Library outside the

jail, but nearby. 1.Tr. 26. Although there was no concem that Straub

was a security risk, jail officials continually refused permission for

his use of a law library on the basis of a written jail policy

conditioning any access to law library on the acquisition of a court

order. Specifically, the jail handbook stated, “Law Library, access

to the law library will be granted upon receipt of a court order.” No

other instruction was provided. 1 Tr. 24, 26; Plaintiff's Exhibit 1.

The Respondent, in an attempt to comply with the policy, sub-

mitted several motions to the court seeking permission to use the

law library and his Black’ s Law Dictionary. (Plaintiff's Exhibits 7,

13, 15.) He was never told of the outcome of these motions and was

not permitted to visit the law library. 1 Tr. 22; Straub, Tr. 6, 15, 26-

27. Also, the Petitioners did not permit Respondent to receive any

copies of cases and statutes that family members brought to the jail.

Straub Tr.17;1Tr.4. His attempts to gain any legal assistance failed.

Straub Tr.62-64;1Tr 93-95.

Testimony at trial supported the finding of the district court that

the Respondent was indigent at the time he was incarcerated at

Sarasota County Jail. Testimony from the Public Defender re-

vealed that both he and the state court judge were aware of the

1 At this point in time, the Respondent was not aware of a civil forfeiture proceeding

brought against him to forfeit his automobile. The testimony of the Respondent also revealed

that he had been informed that the State would not be seizing his automoblie. (Straub, Tr.

140, 148.)

A,

Respondent’s full financial circumstances at the time he was

appointed counsel. 1 Tr. 117. Likewise, unrebutted testimony

revealed that the Respondent made several attempts to seek private

counsel, but the costs were prohibitive. Straub, Tr. 110. Lastly, the

confusion surrounding the civil forfeiture matter brought before his

criminal trial, and naming him as a party, made it difficult for the

Respondent to distinguish the two cases pending against him and

assess his legal needs. Straub, Tr. 140, 148.

Petitioners’ representation of the Respondent’s financial situ-

ation is incorrect and inconsistent with the evidence at trial.

Respondent did not purchase his former wife an automobile while

incarcerated in the Sarasota County Jail. Straub, Tr. 98. Petitioners

mislead the court by stating that the Respondent saved $3,000 while

incarcerated. It should be noted that the evidence at trial revealed

that the Respondent accumulated $3,000 during the course of his

three year prison sentence, and not during his detention at Sarasota

County Jail. Straub, Tr. 97. Evidence was received at trial that the

Respondent had no accessible money while detained in the Sara-

sota County Jail. /d.

2. The present action arises from consolidated cases Respondent

brought in the United States District Court for the Middle District

of Florida against Petitioners. Respondent claimed damages under

42 U.S.C. § 1983 for violation of his right of access to courts

pursuant to this court’s decision in Bounds v. Smith, 430 U.S. 816

(1977). After trial, the district court concluded the Respondent had

been denied his right of access to the Courts in his civil forfeiture

proceeding.

Additionally, the district court upheld the state circuit court’s

finding that the Respondent was indigent. Indeed, the district court

heard testimony that the Respondent used all his money for support

payments of his children and wife. Straub, Tr. 98. Based on the

testimony and evidence at trial, the district court held that Respon-

dent was indigent during the period he was incarcerated in Sarasota

Country Jail. Regarding the Petitioners’ emphasis on income, the

district court stated, “[d]efense counsel even went so far as to make

the rather cynical assertion that Straub was contributing too much

money to the support of his wife and children, money which could

have been used by him to hire counsel.” Petitioners’ App. at 24a.

-8-

The district court further noted that income was only one factor in

determining the indigence of a detainee and that the state court

judge considered the Respondent’s family situation and obligation

when making its determination. /d.

The district court also noted in its opinion that when it removed

the Respondent's informa pauperis status, the court did not make

the kind of indigency determination about the Respondent that the

State court judge was obligated to make in its criminal matter.

Despite the Petitioners’ representation that the district court’s

determination of indigence was based “solely” on the fact that he

was appointed Public Defender, the district court considered the

factors set out in § 27.52(2), Florida Statutes (1985). /d.*

The United States Court of Appeals for the Eleventh Circuit

affirmed the decision of the district court. Petitioners’ App. at 4a-

5a. Despite the Petitioners’ characterization that there was “clear

and uncontroverted evidence” that the Respondent was non-indi-

gent, the Court of Appeals reaffirmed that Respondent was indi-

gent. The Eleventh Circuit noted that the district court, after a full

hearing, determined that the Respondent was indigent at the time of

his incarceration in the Sarasota County Jail. Petitioners’ App. at

4a.

The United States Court of Appeals for the Eleventh Circuit also

held that the financial status of the detainee has no bearing on the

constitutional mandate of meaningful access to the courts as set out

2 Petitioners recognize that income is only one factor in an indigency determination, but

they misrepresent the law. UnderFla. Stat. §27.52(2) (c), the court must consider the

factors set out in the Statute:

(c)The court shall also consider the additional circumstances in determining

insolvency:

1. The probable expense and burden of defending the case;

2. The ownership of, or equity in, any intangible or tangible personai

property or real property or the expectancy of an interest in any such

property by the defendant; and

3. The amount of debts owed by defendant or debts that might be in-

curred by the defendant because of illness or other misfortunes within

his family.

Notwithstanding the assertions made by the petitioner, Florida law strictly

requires this insolvency analysis and sole reliance of the affidavit of insolvency

is error. DiBartolomeo v. Siate, 450 So.2d 925 (Fla. 4th D.C.A. 1984); Enri-

que v. State, 408 So. 2d 635 (Fla. 3d D.C.A. 1981).

-9-

by this Court and Bounds v. Smith, 430 U.S. 817 (1977). The Court

recognized that the Bounds decision required that the State shoul-

der affirmative obligations to assure all prisoners meaningful

access to the courts. Petitioners’ App. at Sa. (Emphasis in Opinion.)

The Eleventh Circuit held that this right of access applies to civil

forfeiture cases, thus, affirming the decision in the district court

awarding damages in the amount of $3,000 plus attorneys’ fees and

costs.

Judge Hill specially concurred in the opinion of the Eleventh

Circuit. Although Judge Hill agreed that the Respondent was in fact

indigent and the right of access extends to civil forfeiture matters,

Judge Hill took issue with the majority’s decision to extend this

right to a non-indigent detainee. Petitioners’ App. at 9a. Notably,

Judge Hill stated that his comments were not to be interpreted as

how he would rule if the case with a proper factual predicate would

be before him. /d. at 17a.

REASONS FOR DENYING THE PETITION

Both the United States District Court for the Middle District of

Florida and the United States Court of Appeals for the Eleventh

Circuit held that: (1) the Respondent was indigent at the time of his

incarceration at Sarasota County Jail, and (2) regardless of his

financial situation, the Respondent was entitled to legal assistance

by someone trained in the law or legal materials to help him defend

or prosecute civil matters. Although the Petitioners repeatedly

admonish both courts below regarding their findings of fact, they

admit that in order to address the constitutional issue, this Court

must initially address the factual issue that they concede is “unwor-

thy of this Court’s review.” Petitioners’ brief at 13 -14.

1.FACTUAL FINDINGS MUST BE CLEARLY

ERRONEOUS BEFORE AN APPELLATE

COURT CAN REVERSE THEM.

It has been well established by this Court that findings of fact will

not be disturbed unless determined to be clearly erroneous and

without suport in the record. Roemer v. Board of Public Works of

Maryland, 416 U.S. 736 (1976). This Court asserted that “[i]t is not

-10-

our place, however, to reappraise the evidence unless it plainly fails

to support the findings of the trier of facts.” Jd. at 758. Moreover,

this Court refused to second-guess the district court in certain

matters even though its own decision may have been different. /d.

Like the present case, the Petitioners in Roemer were requesting

this Court to set aside certain findings of fact based on selected

excerpts from the record that they believed supported their posi-

tion. Finding support in the record for the lower court’s findings,

this Court refused to alter the judgement of the district court

recognizing that the trier of fact is in a better position to evaluate

the evidence than an appellate court with only a bare record to

review. /d.

Despite Petitioners’ repeated mischaracterization of the Respon-

dent as a “non-indigent,” three courts have held otherwise; the

Florida Circuit Court, The United States District Court and the

Eleventh Circuit. Indeed, the record is replete with evidence that

the Respondent was indigent at the time of his incarceration at

Sarasota County Jail. Evidence revealed that any money or income

he was receiving went to his wife and children. Straub, Tr. 97-98,

129-135. Evidence established that the Respondent made several

attempts to employ counsel but could not afford the representation.

Straub, Tr. 110-114. Evidence further showed that the Respondent

attempted to gain assistance through the Gulf Coast Legal Aid

Service, but it declined since the organization did not consider his

civil forfeiture as a priority case in its office. Straub, Tr. 22,

(Plaintiff's Exhibit 16A, 16B, 16D). Respondent had no available

money while in the custody of the Sarasota County Jail. Straub,

Tr. 97.

2. THE DECISION BELOW FOLLOWED THIS

COURT’S MANDATE IN BOUNDS V. SMITH.

The Petitioners have misinterpreted both the holdings of the

Eleventh Circuit below and Bounds v. Smith, 430 U.S. 817 (1977).

Petitioners incorrectly state in their brief that the Eleventh Circuit

held “‘as a matter of constitutional right, all state prisoners -- regard-

less of wealth or adequacy of representation -- are entitled to access

to law libraries and other materials in all litigation which those

04

inmates are involved.” Petitioners’ brief at 7. In actuality, the

Eleventh Circuit’s decision simply applied this Court’s holding in

Bounds v. Smith, 430 U.S. 817 (1977). The law of the Eleventh

Circuit is that the government is obligated to provide all prisoners

“with adequate legal libraries or adequate assistance from persons

trained in the law.” Petitioners’ App. 7a, citing Bounds, 430 U.S. at

828. Consequently, the Petitioners entire argument is fallacious

stemming from their incorrect reading of the decision below.

The Petitioners misstate the holding of this Court in Bounds v.

Smith, 430 U.S. 817 (1977), by asserting that this Court mandated

that “indigent prisoners have minimally adequate access to courts.”

Petitioners’ brief at 9 (emphasis added). Rather, the holding in

Bounds and recognized in the Eleventh Circuit’s decision below

was “[oJur decisions have consistently required States to shoulder

affirmative obligations to assure ail prisoners’ meaningful access

to the courts.” Bounds, 430 U.S. at 824 (cited with emphasis in the

Eleventh Circuit Opinion, Petitioners’ App. at 5a) The Eleventh

Circuit recognized that indigent inmates are usually the ones

affected, however, this Court did not intend to restrict this consti-

tutional right of access, protecting only those within an undefined

financial class.?

Contrary to the Petitioners’ contentions, the Eleventh Circuit did

not broaden the application of Bounds inasmuch as the inmate or

detainee’s wealth was never a factor in the equation, or considered

by this Court. This Court has required that access be ‘“‘adequate,

effective and meaningful.” Bounds, 430 U.S. at 822. That, in and of

itself, is the only limiting factor. To suggest that the Eleventh

Circuit’s opinion leaves local governments virtually defenseless is

patently erroneous. The opinion below merely confirms that

Bounds v. Smith requires that prison authorities not avoid their re-

sponsibility of ensuring that inmates have either a law library or

3 Indeed, the district court recognized this distinction as an “administrative disaster area”

that would require meaningful access to the courts to make an indigency determination, in

order to gain meaningful access to the courts to prosecute and defend claims. Petitioners

App. 25a. The district court also noted from the evidence at trial that the Respondent's

financial status played no part in the Petitioners’ access policies while the Respondent was

iwcarcerated. Petitioners’ App. at 24a; 1 Tr. 26-27, 129. The courts below were no doubt

cuncemed that jail officials would attempt to second-guess or overnde the indigency

determination by the count, as in this case.

-12-

adequate legal assistance to enable the prisoners or pretrial de-

tainees to prepare meaningful legal papers, thus giving them

constitutional access to the courts.

In the case sub judice, the district ccurt ruled and the court of

appeals affirmed, that the Petitioners’ policy with respect to access

did not pass constitutional muster. The record shows that Respon-

dent was not permitted to use the law library, have anyone bring

him legal materials (or newspapers for that matter), or offered legal

assistance by anyone. Straub, Tr. 20-22, 29-30; 1 Tr. 20, 29-30. To

the extent that local governments are now defenseless as to legiti-

mate claims when in violation of Bounds, the decision below

accomplished that task. However, this is noi to say that the local

governments will have to allow the inmate to choose his form of

assistance. The holdings of both this Court in Bounds, and the

Eleventh Circuit’s opinion below charges local governments with

the responsibility to provide some form of “meaningful” access,

either through legal assistaz.ce, or the opportunity to allow inmates

to at least help themselves. Neither decision requires a library that

is complete with every legal treatise or reporter available as

Petitioners suggest. Rather, legal materials must be supplied that

would permit the inmate or pretrial detainee to have meaningful

and effective access to courts. Neither opinion mandates a lawyer

of the inmate or detainee’s choice. Rather, both decisions require

some form of legal assistance by someone trained in the law in the

event that the inmate or pretrial detainee is not permitted to receive

legal materials or permitted to use a law library.

3. The Decision Below Comports with Every Decision in

Every Circuit.

Despite Petitioners’ argument to the contrary, virtually every

case decided by the United States Court of Appeals for the Fifth

Circuit, subsequent to Bounds, has held that all prisoners or pretrial

detainees, regardless of their financial worth, are entitled to either

a law library or legal assistance. Jackson v. Procunier, 789 F.2d 307

(Sth Cir. 1986); Morrow v. Harwell, 768 F.2d 619 (8th Cir. 1985);

Ryland v. Shapiro, 708 F.2d 967 (Sth Cir. 1983); Cruz v. Hauck, 627

F, 2d 710 (Sth Cir. 1980); Corpus v. Estelie, 551 F.2d 68 (Sth Cir.

1977).

-13-

For example, in Corpus v. Estelle, 551 F.2d 68 (Sth Cir. 1977), the

court affirmed the judgment of the district court finding that the

Texas Department of Corrections did not allow the prisoners access

to the courts. Likewise, the court held that reasonable access to

courts must include access in general civil legal matters including

but not limited to divorce in small civil claims. /d. at 70.

The limited precedential significance of Wilson v. Zarhadnick,

534 F.2d 55 (Sth Cir. 1976),’ subsequent to Bounds comes into clear

focus upon review of the Fifth Circuit’s decision in Morrow v.

Harwell, 768 F.2d 619 (Sth Cir. 1985). In Morrow, the Fifth Circuit

recognized that access to courts mandated by Bounds includes

indigent and non-indigent inmates. As in the present case, a

significant number of inmates were pretrial detainees. The court in

Morrow recognized that meaningful access to the courts must be

given by either providing a law library or assistance from someone

trained in the law. In Morrow, the assistance came from university

law students. The court noted that "[t]he students can assist prison-

ers only by providing copies of forms, cases, and other written legal

materials. The copies are made for inmates ai their request at a rate

of ten cents per page, with free copies for indigents." /d. at 622.°

The Fifth circuit applied the guidelines established in Bounds in

the context of a civil case, to include both indigent and non-indigent

inmates and detainees.

The United States Court of Appeals for the Eleventh Circuit

correctly rejected “the fact” that the right of access is “inextricably

tied to aconcem with providing ‘reasonably adequate’ legal service

to indigent inmates.” Petitioners’ brief at 9. Both the district court

and the Court of Appeals below recognized that the law of the Fifth

Circuit is that the financial status of the inmate plays no part in the

access to courts’ analysis. Cruz v. Hauck, 627 F. 2d 710 (Sth Cir.

4Notably, Wilson v. Zarhadnick, 534 F. 2d 55 (Sth Cir. 1976), has never been cited as

legal authority for the proposition that only indigent inmates are entitled to the protection

under Bounds

-14-

1980). Addressing access in a civil case, the court in Cruz held:

If all inmates do not have such access, the

court should devise a plan ensuring

adequate entry to the courts, either by

reasonable access to attorneys or by a

reasonable access to legal materials, or by

any other means a district court may de-

vise.

Id. at 719 (emphasis in original).

The Eleventh Circuit’s opinion below is in accord with every

circuit in the United States. In United States v. Chatman, 584 F.2d

1358, 1360 (4th Cir. 1978), cert. denied, 482 U.S. 911 (1979), the

Fourth Circuit addressed Bounds v. Smith in the context of a

criminal matter. Recognizing that Bounds v. Smith mandated that

the State provide the defendant with access to courts through either

legai materials or someone trained in the law, the Chatman court

held that the defendant’s sixth amendment right to appointed

counsel satisfies the constitutional requirement. The Chatman

court noted that if the State exercises one of the options mandated

in Bounds, the prisoner is not entitled to choose the alternative.

Likewise, the Eleventh Circuit below held that the State must

exercise at least one of the options to ensure access. Petitioners’

App. at 6a. Sce also, Hooks v.Wainwright, 775 F.2d 1433 (11th Cir.

1985)(en banc). In this case, both courts below held that the Peti-

tioners neither offered legal assistance to the Respondent, nor

access to any legal materials in any form. Petitioners’ App. at 2a-

3a. The record shows that the Respondent in this case tried several

5 The court in Morrowheld that this was insufficient legal assistance given the limited

amount of materials that were provided to the inmates and pretrial detainees. Although the

system in Morrow gave greater access to the inmates than the present case, it did not pass

constitutional muster of “adequate effective and meaningful” access to courts. Morrow, 768

F.2d at 623.

6 This characterization of this Court’s opinion is Bounds is misleading. This court stated

in Bounds that prisoners must have a “reasonably adequate opportunity to present claimed

violations of fundamental constitutional nights to the courts.” Bounds, 430 U.S. at 825. In

order to accomplish this requirement, inmate access to the courts must be “adequate,

effective and meaningful.” /d. at 822.

Gis

avenues to gain access to the courts; evidence at trial revealed he

would have accepted any form of access he could have achieved.

Straub Tr. 14-16, 27-29, 62-64, 129-134, 141.

To the same affect is United States v. Wilson, 690 F. 2d 1267 (9th

Cir. 1982), cert. denied, 464 U.S. 867 (1983). In Wilson, the Ninth

Circuit opined that if the State offers legal assistance through the

appointment of an attorney, an inmate is not free to reject that

method and insist on another avenues of access of his or her

choosing. /d. at 1271. Likewise, in United States, ex rel. George v.

Lane, 718 F.2d 226 (7th Cir. 1983), the Seventh Circuit held that an

appointed counsel is sufficient to satisfy Bounds, even if rejected by

the inmate. /d. at 231. Nearly all of the cases cited by the Petition-

ers’ involved access to the courts in criminal matters accomplished

by the sixth amendment. Since there is no sixth amendment right to

counsel in a civil forfeiture case, the decisions cited by the Petition-

ers have limited applicability.

In its opinion below, the Eleventh Circuit held that in the context

of the civil forfeiture matter, the Respondent was denied legal

assistance or legal materials and consequently received no mean-

ingful access. Petitioners’ App. at 2a. Since he had no sixth

amendment right to counsel, and no assistance was offered, the

county was under an obligation to furnish legal materials or allow

use of an adequate law library.

The necessity of meaningful access to the courts in most civil

matters has been well established. Indeed, inCorpus v. Estelle, 551

F. 2d 68 (Sth Cir. 1977), the court held that the right of access to the

courts must include access in general civil legal matters including

but not limited to divorce and small civil claims.’ Recently, in

Jackson v. Procunier, 789 F.2d 307 (Sth Cir. 1986), the Fifth

Circuit reiterated this application of Bounds. Id. at 311. This Court

has long recognized the right of access applies to civil claims.

Chambers v. Baltimore & Ohio Railroad Co., 207 U.S. 142, 28 S.

Ct. 34 (1907); Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780

(1971).

7 The Eleventh Circuit adopted Fifth Circuit law as it existed on September 30, 1981, as

binding precedent. Bonner v. City of Prichard, 661 F. 2d 1206 (11th Cir. 1981) (en banc).

ns

The Petitioners overstate the effect of the Eleventh Circuit’s

decision below. Although they prophesize that the existence of the

right to access “‘will almost certainly encourage some inmates to

become more litigious,” the very purpose of Bounds was to assist

inmates in filing legal documents and avoid frivolous cases.

Bounds, 43 U.S. at 831-832. Indeed, this Court stated:

Independent legal advisors can mediate or

resolve administratively many prisoner

complaints that would otherwise burden

the courts, and can convince inmates that

their grievances against the prison or the

legal system are ill-founded, thereby fa-

cilitating rehabilitation by assuring the

inmate that he has not been treated un-

fairly.

Id. at 831-832. The Petitioners now seek to undermine and severely

restrict this Court’s decision in Bounds v. Smith, supra by asserting

financial status at the determinative factor.

The petition to review the decision below should be denied as it

is a logical application of previous decisions by this Court in a fact-

specific context. The Constitution requires inmates or pretrial

detainees to be provided legal materials through an adequate law

library, or legal assistance by someone trained in the law.

+: ane neal

a

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

George K. Rahdert, Esq. *

RAHDERT,ACOSTA& DICKSON

233 Third Street, N.

St. Petersburg, Florida 33701

(813) 823-4191

M. David Shapiro, Esq.

BAKER & HOSTETLER

1300 Bamett Plaza

Post Office Box 112

Orlando, Florida 32802

(305) 841-1111

* Counsel of Record