Opposition Brief — Zimmerman v. Para-Professional Law Clinic

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

= Terres

wiec bheieee Buprens Coun, us,

j rFiLep

NO, 87-1347 »/ MAR r tomy

- ROREPH F, BP.

IN THE SUPREME COURT OF THE a.

UNITED STATES

October Term 1987

LeROY S. ZIMMERMAN, ET AL

Petitioners

ve

PARA-PROFESSIONAL LAW CLINIC, ET AL

Respondents

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

COMES NOW, The Respondents via Ahmad Abdul Jabbar,

a/k/a Roy Williams, Hugh Williams and Zebbie J. Clifton, and

moves this Court to permit them to proceed in forma pauperis

in filing their Reply Brief To Petitioners' Writ of Certiorari,

without prepayment of fees and cost or security therefor.

In Support hereof, Respondents assert they werepermitted

to proceed in forma pauperis in the United States District Court

For The Eastern District of Pennsylvania (i.e. see Order, 49a)

and in the United States Court of Appeals For The Third Circuit

(i.e. see Order, 50a). As the attached Affidavit indicates, Respondents

are unable to pay such fees or costs, or give security therefor, and

ergo request this Court allow them to proceed in forma pauperis

pursuant to 28 U.S.C. Section 1915

ahnad, n- damad/

%

Ahmad Abdul Jabbar-al Samad

a/k/a Roy Williams

Counsel (Pro Se) for Respondents

Hugh 1 Wat

Co-counsel (Pro Se) for Respondents

Dated: MAR 8 tata

a aaaEaEEOEOEOEOEOEOEeEeEeEeEeEeEeeeeee

eae ORF ORR RE

one

NO, 87-1347

IN THE SUPREME COURT OF THE

UNITED STATES

October Term 1987

LeROY S. ZIMMERMAN, ET AL

Petitioners

ve

ae PARA-PROFESSIONAL LAW CLINIC, ET AL

Respondents

AFFIDAVIT IN SUPPORT OF

MOTION TO PROCEED

IN FORMA PAUPERIS

I, Ahmad Abdul Jabbar-al Samad, a/k/a Roy Williams,

Hugh Williams, and Zebbie J. Clifton being first duly sworn/affirmed,

depose and say that we represent the Respondents in the above

entitled case. That in support of our motion to proceed in forma

pauperis without being required to prepay fees, costs or give security

therefore, we state that because of our poverty and /or impecuniousness

we are unable to pay the costs of responding in said proceedings

or to give security therefor; that we believe we are entitled to the

redress sought.

We further swear/affirm that the facts set forth below

relating to our ability to pay the costs of filing a response to the

Petitioners' Writ of Certiorari are true.

1. Are you presently employed?

We are presently employed in the Para-Professional

Law Clinic, Inc. being paid prison wages of

approximately fifthy three dollars per month to

each of us individually. However the Para-Professional

Law Clinic, Inc. presently has eight dollars and

twelve cents in the corporate account,

y=

2.

Have you received within the past twelve months any

income from a business, profession or other form of self-employment,

or in the form of rent payments, interest, dividends, ordher source?

The respondent Ahmad Abdul Jabbar-al Samad, a/k/a

Roy Williams, has received a fifty dollar money order

as a Christmas gift from a personal friend in society

which was sent to his children for de minimis support,

The respondent Hugh Williams received a twenty dollar

money order from his mother as a birthday gift, and

a ten dollar money order from a friend as a Christmas

gift, which he sent to his children for deminimis support.

The respondent Zebbie J. Clifton had none.

The Para-Professional Law Clinic, Inc. has received none.

Do you own any cash or checking or savings accounts?

The respondent Ahmad Abdul Jabbar-al Samad, a/k/a

Rey Williams ownes none.

The respondent Hugh Williams, owns none.

The respondent Zebbie J. Clifton, owns none.

The Para-Professional Law Clinic, Inc., owms a checking

account at the Bank of Pennsylvania in Allentown,

Pennsylvania; account No, 8602-5082. It presently has

eight dollars andj twelve cents therein.

Do you own any real estate, stoeks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary household furnishings and clothing. )?

The respondent Ahmad Abdul Jabbar-al Samad, a/k/a

Roy Williams owns none,

The respondent Hugh Williams owns none.

The respondent Zebbie J. Clifton owns mne.

The Para-Professional Law Clinic, Inc., owms none

except office furnishings and paraphernalia related

to legal work.

5. List the persons who are dependent upon you for support

and state your relationship to those persons.

The respondent Ahmad Abdul Jabbar-al Samad, a/k/a

Roy Williams sends most of his de minimis prison wages

to his son, Roy Williams, Jr.

The respondent Hugh Williams sends his de minimis

prison wages to his two youngest children, Hugh Williams, Jr.

and Dianne Williams.

The respondent Zebbie J. Clifton sends his de minimis

prison wages to his five (5) children.

The Para-Professional Law Clinic, Inc. has none as to

financial support, however (2500) twenty-five hundred

inmates for legal support, relationship thereto servant.

We understand that a false statement or answer to any

questions in this affidavit will subject us to penalities for perjury.

WK¥G_KOd Bw.

Ahmad Abdul Jabbar-al Samad

a/k/a Roy Williams

Wi Siam s

Hugh Williams

Sworn (Affirmed) and Subscribed to

before me, this 7 A aay of March, 1988

ae ae Af =

NOTARY PUBLIC

STANLEY WEBB. Notary Pubes

ratertord. Mongtome’y O--

ny Commnten Expires Way >) 1988

Para-Professioual Lau Clinic, Que,

P.O. BOX 244

Graterford, Pennsylvania 19426

March 8, 1988 ox

Fiat Justitia Deo Volentc

=

Clerk of Court

United States Supreme Court

1 First Street N.E.

iVED

Washington, D.C. 20543 RECE

MAR 1 1 1988

Re: LeRoy S. Zimmerman, et al — OFF.CE OF THE CLERK

v. Para-Professional Law Clinic SUPREME COURT, U.S.

No. 87-1347

Dear Mr. Spaniol,

Enclosed find (1)one copy of Respondent's Brief in Opposition To

Petition For Writ of Certiorari To The Third Circuit Court of Appeals

to be filed with the Court. Thank you.

Respectfully,

he Withans

Hugh “Williams

Sec'y

Service:

Office of Attorney General

, ORIG,

io we mmd

NO. 87-1347

IN THE SUPREME COURT OF THE

UNITED STATES

October Term 1987

LeROY S. ZIMMERMAN, ET AL

Petitioners

PARA-PROFESSIONAL LAW CLINIC, ET AL

Respondents

'

RESPONDENTS! BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES

. COURT OF APPEALS FOR THE THIRD CIRCUIT

Ahmad Abdul Jabbar-al Samad

a/k/a Roy Williams, Pro Se

Counsel for Respondents

Hugh Williams, Pro Se

Co-counsel for Respondents

Zebbie J. Clifton, Pro Se

Co-counsel for Respondents

PARA-PROFESSIONAL LAW CLINIC, INC.

State Correctional Institution

Post Office Box 244

Graterford, Pennsylvania 19426

COUNTER QUESTION PRESENTED

FOR REVIEW

The Court of Appeals correctly affirmed the District

Court's holding; that an adequate prison law library

per se does not provide inmates with meaningful

access to the Courts in the case sub judice.

ska

T AR

PET NERS

LeROY S. ZIMMERMAN, Attorney General of Commonwealth of Pennsylvania

DAVID S. OWENS, JR,, Commissioner of Corrections of the

Commonwealth of Pennsylvania

CHARLES H, ZIMMERMAN, Superintendent of Graterford Prison

THOMAS D. STACHELEK, Deputy Superintendent of Graterford Prison

RESPONDENTS

PARA-PROFESSIONAL LAW CLINIC

GEORGE BRADLEY, #¢F-0281

CURTIS EL JARVIS, #F-6690

MONSERRATE ZAPATA, #¢F-0430 .

BEBLEY C, WELLS, JR., # M -0253

CARL MILES, #F-7808

ZEBBIE CLIFTON, #@F-5043

HAROLD X SMITH, #F-6433

ON BEHALF OF ALL OTHER INMATES OF THE GRATERFORD

INSTITUTION SIMILARLY SITUATED.

-ia -

r

TABLE OF CONTENTS

Page

COUNTER QUESTION PRESENTED FOR REVIEWeesesesceceeees i

LIST OF PARTIES. cccccccccccsssccsccsscessccsscessssesessess 18

TABLE OF CONTENTS «<ccccccccccccccccscccesessccsccsssecess ib

TABLE OF AUTHORITIES. «-cccccccscccccccsessssccsesssscceess ii

OPINIONS BELOW. ccccccccsccccccccccceccssessscsscesesesesess iV

STATEMENT OF JURISDICTION ccccccccccccccsscscccesscsssseses V

CONSTITUTIONAL PROVISIONS «cccccccccccccececccccsssessssess Vi

STATUTES INVOLVED. ccoccccccccccccccccssscscccesesesseseees Vi

STATEMENT OF FACTS ccccccccccscscccccsesecsssccsssccsecsces |

REASON FOR NOT GRANTING WRIT

The petition should not be grante for there is no

confusion among the Circuits regarding the contours

of immates' right of access to the Courts needing

resolution. Cee eersesccecesesecesssesscesesosesesesses F

CONCLUSION .cccccccccccccccccccsscccccccccccessccescesesessse AZ

APPENDICES

Appendix la

The Third Circuit Memorandum and Order

Appendix 3a

District Court Opinion

Appendix 47a and 482

District Court Geto

Appendix 49a

District Court Order to Proceed in Forma Pauperis

Appendix 50a

Order continuing forma pauperis and permission

to file typewritten briefs.

-ib-

TABLE OF AUTHORITIES

Page

UNITED STATES CASES:

Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977) e+e 15,769

Campbell v. Miller, 787 F.2d 217 (7th Cir, 1986) -e+++++- 6,8

Cepulonis v. Fair, 732 F.2d 1 (Ist Cir, 1984) coseseseeee 8

es v. Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972) ,..,

Hooks v. Wainright, 536 F.Supp. 1330 (E.D. Fla 1982)

Rev'd 775 F.2d 1433 (llth Cir. 1985) Coenen eee

Hughes v. Rowe, 449 U.S. 5, 101 Ss. Ct. 173 a

Jacobson v. Leonard, 406 F.Supp. 515 (E.D. Pa. 1976)+++. 5

Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747 (1969)--++- 1,9

Lindquist v. Idaho State Board of Corrections,

776 F.2d 851 (9th Cir. 1985) ececcccececcesessesseses 7

Monmouth County Corr. Inst., Inmates v. Lanzaro,

834 F.24 326 (3rd Cir. 1987) eccccccccccocoscccccccoes 10

Tate v. Werner, 393 F.Supp. 1318 (E.D. Pa. 1975) «seee+s & 5

U.S. ex rel Para-Professional Law Clinic, Inc. v. Kane,

656 F.Supp. 1099 (E.D. Pa. 1987), 835 F.2¢ 285

(3rd Cir. 1987) eeereeee eee eeaeaeeeaeeeeeeeeaeeereaeeeaeeee |

Wage v. Kane, 448 F.Supp. 678 (E.D. Pa. 1978)-++++-+++-- 1,8

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974).-. 1

U.S, CONSTITUTION:

Article 1, Section 8, Clause 1 eee ee ew eee ween een waeeneneneneenee 10

Article 3, Section 1 and 2, Clauses 1 and 2...ceecseceees 10

First Amendment

Fourteenth Amendment

-ii-

FEDERAL STATUTES:

18 U.S.C. 1001

28 U.S.C. Section 1254(1)

42 U.S.C.A. Section 3711 et seq.

PENNA, STATUTES:

16 P.S. Section 5199, 8A

16 P.S. Section 9960, 1

16 P.S, Section 9960.6

16 P.S. Section 9960. 10a

42 Pa.C.S,A. Section 9541 et seq.

-iii-

OPINIONS BELOW

The Order of the Court of Appeals For The Third Circuit

Affirming the judgment of the United States District Court

For The Eastern District of Pennsylvania, has been

reported at 835 F.2q 285 (3rd Cir. 1987), and attached

hereto as Appendix beginning at la.

The Opinion of the United States District Court For The

Eastern District of Pennsylvania is reported at

656 F.Supp. 1099 (E.D. Pa. 1987) and is attached hereto _

‘as Appendix beginning at 3a.

-iv-

JURISDICTION

The Respondents (i.e. Para-Professional Law Clinic, Inc. )

Reply Brief to Petitioners (i.e. LeRoy S. Zimmerman, et al)

Writ of Certiorari falls within the Court's jurisdiction pursuant

to 28 U.S.C. Section 1254(1); accord Rule 34.2 et seq. ofthe

Rules of the Supreme Court of the United States.

CONSTITUTIONAL PROVISIONS

The First Amendment of the United States Constitution provides:

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

Tight of the people peaceably to assemble,

and to petition the Government for a

redress of grievances.

The Fourteenth Amendment of the United States Constitution

provides in pertinent part:

Section 1

All persons born or naturalized in the United

States and subject to the jurisdiction thereof,

are citizens of the United 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

od life, liberty, or property, without que process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

FEDERAL STATUTES

42 U.S.C.A. Section 3711 et seq:

Federal Law Enforcement Assistance Administration

42 U.S.C. Section 1983:

The Civil Rights Act of 1871

Section 1983

“Every person who, under color of any statute,

ordinance, regulation, custon, or usage, of any

State or territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity,

(Cont. next page)

-vi-

or other proper proceeding for redress.

For the purposes of this section, any

act of Congress applicable exclusively

to the District of Columbia shall be considered

to be a statute of the District of Columbia.

STATE STATUTES & RULES

16 P,S. Section 5199.8A

The Board of Commissioners of a county of the

second class A may appropriate moneys for

payment to nonprofit legal aid associations or

societies, or county bar associations who

provide legal aid services for indigent persons

in civil matters.

16 P.S. Section 9960.1 thru 9960. 10a

Section 9960.6 Duties

(a) The public defender shall be responsible for

\ furnishing legal counsel, in the following types

of cases, to any person, who for lack of

sufficient funds, is unable to obtain legal counsel:

(1) where a person is charged with juvenile

delinquency;

(2) critical pretrial identification procedures;

(3) preliminary hearings;

(4) State Habeas Corpus proceedings;

(5) State trials, including pretrial and posttrial motions;

(6) Superior Court appeals;

(7) Pennsylvania Supreme Court appeals;

(8) Post Conviction hearing, including proceedings

at the trial and appellate levels;

(9) Criminal extradition proceedings;

(10) Production and parole proceedings and

revocation thereof;

(11) In any other situations where representations

is constitutionally required.

(b) The public defender, after being satisfied of

the person's inability to procure sufficient funds

to obtain legal counsel to represent him, shall

provide such counsel.

Every person who requests legal counsel shall sign

a affidavit that he is unable to procure sufficient

funds to obtain legal counsel to represent him and

shall provide, under oath, such other information

as may be required by the court, the public

defender, or the Pennsylvania Rules of Criminal

procedure,

-vii-

(c) The public defender, when appointed by the court,

shall furnish legal counsel to persons who are or

may be subject to commitment in a proceeding under

the act of October 20,1966 (3rd Sp. Sess., P.L. 96

No. 6), known as the Mental Health and Mental

Retardation Act of 1966.

Section 9960.10a Expenses for parole proceedings

The county which imposed the sentence from which was

defendant was paroled shall be responsible for

reimbursing the public defender’s office of any other

couhty for reasonable expenses incurred for

representing that defendant in a parole revocation

proceeding and appeals therefrom.

42 Pa.C.S.A. Section 9541 et seq.

Pennsylvania Post Conviction Hearing Act.

PENNA, RULES OF CRIMINAL PROCEDURE

Rule 316 Assignment of Counsel

(a) In Summary Cases

Counsel shall be assigned in all summary cases to

all defendants who are without financial resources

of who are otherwise unable to emply counsel when

there is a likelihood that imprisonment will be imposed.

(b) In Court cases

In all court cases counsel shall be assigned prior to

the preliminary hearing to all defendants who are

without financial resources or who are otherwise

unable to employ counsel.

'(c) In All cases

(i) The court of its own motion, shall assign counsel

to represent a defendant whenever the interests of

justice require it.

(ii) A motion for change of counsel by a defendant

to whom counsel has been assigned, shall not be

granted except for substantial reasons.

(iii) Where counsel has been assigned, such

assignment shall be effective until final judgment,

including any proceeding upon direct appeal.

-Vviii-

STATEMENT OF FACTS

It is incontrovertible the petitioners herein permitted the

respondents herein to form the Para-Professional Law Clinic, Inc.

(hereinafter Law Clinic) in 1971 pursuant to this Court's decision

in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 Lied 24 718 (1969);

the purpose thereof being to aid fellow prisoners unable to do their

own legal work to have access to the courts to present presumptive

meritorious legal claims.

It is further incontrovertible that respondents herein were

permitted to carry out their function for 7 years prior to the

decision of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977).

On December 14th 1977 the respondents Law Clinic were

informed to cease operations and work carried out by them by

the petitioners. The December 14th 1977 order to close the Law Clinic

by petitioners precipitated the filing of a civil rights complaint

which concluded in the granting of a preliminary injunction and the

reopening of the Law Clinic. Cf. Wade v. Kane, 448 F.Supp. 678

(E. D. Pa. 1978) aff'd mem. 591 F.2d 1338 (3rd Cir. 1979)

Subsequently another complaint was filed in the name of the

cerporation with officers and members thereof named as subsidizry

plaintiffs. This subsequent complaint raised facsimile issues to

those raised in Wade v. Kane, supra, ergo the complaints were

consolidated and the evidence from Wade v. Kane, supra,

incorporateg in the complaint sub judice. Cf. Para-Professional

Law Clinic. et al v. Kane, et al (hereinafter P.P.L.C. v. Kane):

4a & 5a (i.e. letter "a'' after the number being appendix

attached hereto)

After settlement negotiations failed to bare fruition, a final

hearing (i.e. tripartite hearing) was held after which, eftsoons the

Court transmitted the preliminary injunction into a permanent one

via a bifurcated order dateq March 25,1987 and March 27, 1987.

Cf. 47a & 48a. The District Court per Honorable Joseph S. Lord, ILI,

Senior Judge held inter alia that closing the Law Clinic would violate

the rights of access to the Courts for innumerous inmates at

Grate rfora. including but not excluding those in administrative or

disciplinary custody, illiterate, functionally illiterates, those who

do not speak English, and those unable to understand legal materials

or'cafry out basic legal writing to prepare petitions and complaints, etc.

The holding of the District Court in their judgment was

affirmed by a triumvirate of judges of the Third Circuit Court of

Appeals for the reasons advanced in the District Court's opinion. (2a)

The petitioners herein have installed a law library 7 years

ex post facto the Law Clinic's functioning with their permission

and behest, which was not found to be adequate until March 25, 1987

(i.e. the date of the District Court's opinion) (2la)

The State's law library employs six or seven reference aids (7a);

reference aids are not permitted to give inmate legal assistance or

advice (7a); nor are they required to have training in legal research.

However one out of the six working in the library has had

de-minimis training. (8a)

Inmates in general ppulation gain access to the law library

(i.e. the library is located in an area away from the housing blocks)

by obtaining a pass from their housing block officer (9a). However,

passes to the library are not always honored arbitrarily (9a).

x 3

Inmates in general population may visit a Law Clinic Office

on the housing block for legal assistance at anytime they desire the

same without need of a pass. (l3a & 14a)

The Law Clinic provides legal assistance to inmates in

administrative and disciplinary custody, via a special pass from the

petitioners to carry out the same. (14a)

The Law Clinic has prepared and filed documents for direct

appeals, motions ia: onvent of judgment, and for new trial, Post

Conviction Hearing Act, (i.e. pursuant to 42 Pa.C.S.A. 8 9541 et seq.),

Habeas Corpus Petitions, Civil Rights Actions, etc., etc. (l4a & 15a)

The Law Clinic members work in excess of twelve hours per

day on behalf of inmates, and have we numerous occasions provided

adequate and successful legal representation for Graterford inmates

(i.e. an incontrovertible fact). (15a)

Graterforg has 1400 immates of 2400 inmates who are

functionally illiterated. (lla - 12a)

As much as 80 per cent of Graterford inmates are unable to

read and comprehend legal refernce materials. (l6a)

Law Clinic members are prohibited from receiving compensation

from inmates for sevices rendered. Graterford pays between $520

and 820 dollars eee month in salary to members of the Law Clinic. (16a)

(There are 16 to 20 members of the Law Clinic. (l4a)).

The Law Clinic services many inmates unable to obtain

Court appointed counsel. Inmates are generally unable to obtain Court

appointed counsel to ascertain whether they have claims upon which

relief can be granted. (16a)

By representing inmates at a very low compensation from

Graterford and without fee from inmates, the Law Clinic enables

Courts to avoid incurring the expense of appointing counsel in

many cases. (l6éa - 17a )

The Law Clinic cell block offices provide private areas

conducive to confidential legal communications. (17a)

Graterford inmates may do legal work in their cells. However

inmates are not permitted inside another inmate's cell. Ergo, inmates

cells may not be used for confidential legal discussions. (18a)

Due to the noise level and traffic interruptions, the cell

block recreation facilities are unsuitable for confidential legal

discussions. (18a) If the Law Clinic were closed, members thereof

would be assigned to other full-time jobs. (i.e. The petitioners

would still have to pay the $520 to 820 dollars of salary for the other

job assignments.) (18a)

Most of the Law Clinic offices are not suitable for

housing inmates. (20a)

The peapenéuie also set forth there was a prior Consent

Decree settlement pursuant to the Law Clinic with petitioners set

forth in Tate v. Werner, 393 F.Supp. 1318 (E.D. Pa. 1975); which

provided for the Law Clinic to continue legal services to

Graterford inmates.

li

REASONS FOR NOT GRANTING THE WRIT

l. The petition should not be granted for there is no

confusion among the Circuits regarding the contours

of inmates' right of access to the Courts needing

resolution.

Contrary to petitioners’ assertions the Court of Appeals in

affirming the District Court's application of Bounds v. Smith,

430 U.S. 817, 97 S.Ct. 1491 (1977) was correct and did not extend

the pare of the Bounds holding beyond its analytical limits, nor

impose a duty on the State which surpasses any constitutional

requirement.

The petitioners seek this Court's review, and desires the

same to be in vacuo. Non obstante respondents aver it is

incontrovertible our nascence was 7 years ex post facto Bounds,

supra, with the consent and behest of petitioners. When ipse dixit

after the Bounds decision in 1977 petitioners decided to add the

dimension of a law library, and eradicate the Law Clinic whom

Graterford inmates had grown to depend on for access to the Courts.

This maugre petitioners’ acquiescence in the Consent Decree

settlement set forth in Tate v. Werner, 393 F.Supp. 1318

(E.D. Pa. 1975); i.e. legal services would be provided to Graterford

inmates by the Para-Professional Law Clinic. Note: No appeal has

ever been taken thereon.

Respondents assert this Consent Decree settlement has

transmutted into a customs and usage. For respondents have shown

that the party (i.e. petitioners) against whom it will apply has

actual knowledge of the custom and is bound by it for that reason.

Ci. Jacobson v. Leonard, 406 F.Supp. 515, 520-1 (E.D. Pa. 1976)

we

The petitioners have asserted the decision of the Third Circuit

is in conflict with four other circuits anent the application of Bounds,

e.g. see: Footnote 4 on page 16 of Petitioners’ Writ of Certiorari

and cases cited therein.

It is obvious the petitioners have miscontrued the cases cited

in support of their alleged conflict with other circuits ubi supra, and

in support thereof respondents set forth a review of the same

desultorily to those in Footnote 4 on page 16 of Petitioners’ Writ

of Certiorari. However seriatim as set forth beginning on page 17

of Petitioners’ Writ of Certiorari.

In Hooks v. Wainright, 536 F.Supp. 1330 (E.D. Fla. 1982),

Rev'd 775 F.2d 1433 (llth Cir. 1985), the District Court held any

acceptable plan for insuring Florida prisoners meaningful access to

the Courts as required by Bounds v. Smith, must include a provision

for the assistance of counsel. The llth Circuit reversed declaring

Bounds does not require states to provide legal counsel to inmates.

Nor. obstante the Circuit did recognize providing inmates access

to those koowledgeable in law was a far cry from providing counsel.

Id. 775 F.2d at 1436-37. The Third Circuit did no more than just

that in the case sub judice, i.e. provide access to prisoners to those

knowledgeable in the law; which is a far cry from providing counsel.

The case of Campbell v. Miller, 787 F.24 217 (7th Cir. 1986)

is distinguishable from the case sub judice, (i.e. as set forth on

pages 19 and 20 in Petitioners’ Writ of Certiorari). Campbell issued

a challenge to the restrictions on the visitation of counsel at

Marion Federal Penitentiary, the highest level maximum security

prison in the Federal system. Id. 787 F.2d4 220, 227.

sho

He challenged the limit of day his attorney could visit him, and the

necessity of the attorney giving officials 24 hour notice of the visit.

Ci. Id. 787 F.2d at 227, which the Court held under those circumstances

was not unconstitutional.

However the crux of Campbell's complaint as coupled with the

restriction on counsel's visits was he did not have adequate access

to the law library. He was immured in the control unit for allegedly

being a threat to others and the orderly operation of the institution.

He allegedly stabbed another inmate in the law library at Marion.

Vide: 787 F.2d at 229 Footnote 20. Non obstante Campbell's alleged

security threat the Court held he could not be wholly deprived of

access to the Cotrts.

In the case of Lindguist v. Idaho State Board of Corrections,

776 F.24@ 851 (9th Cir. 1985) (i.e. cited om page 21 of Petitioners’

Writ of Certiorari), the state had provided a law library with photocopy

eguipment and other essentials such as inmate law clerks with training

to help assist inmates with legal problems. Id. 776 F.2d at 855.

The law clerks received training in research and legal writing after

which they would provide legal assistance to disadvantaged inmates

to the courts.

The Court took judicial notice that the clerks had experience

and did an excellent job, and that this program met the constitutional

minimum requirements. Id. 776 F.2d at 857. This is a similar type

of program the respondents have been providing for 7 years prior

to Bound s_v. Smith, supra, and continues to provide as of date.

The eradication of which would make access to the courts for the

majority of Graterford inmates chimeric and a fantasy.

«7

The case of Cepulonis v. Fair, 732 F.2d 1 (Ist Cir. 1984) is

likewaise distinguishable from the case sub judice. (i.e. as it is set

forth on pages 21] &22 in Petitioners’ Writ of Certiorari). This case

like the plaintiffs in Campbell v. Miller, supra, were in disciplinary

segregation for alleged offenses or crimes committed against guards

and/or fellow inmates. Non obstante their security threat, they were

allowed de minimis access to the law library which they claimed

inadequate to allow access to the courts. After taking evidence the

Court ordered a satellite law library placed in the disciplinary

segregation unit with 5 hours a week of assistance from second and

thitd year law students. The Circuit Court reversed only on the issue

of assistance of the law students, because the state was not given an

opportunity to institute their program of use of the law library with

assistance from inmate legal clerks.

A discerning perusal of the four cases supra, by this Court

would manifest any conflict with the subject Circuits wanting. Ipso

facto they are more analogous than antithetical, as can be seen from

the District Court's prior holding herein infra.

The Court below said in Wade v. Kane, 448 F.Supp. 678

(E.D. Pa. 1978):

Interrupting and terminating the Clinic's operations

violate the Constitutional rights of Graterford's

inmates in another even more direct sense: tes

who are unable to perform their own legal research

have a constitutional right to legal assistance from

other inmates, in the absence of adequate assistance

from lawyers, even where the prison makes

available an adequate law library.

(3rd Cir. 1979) accord Cf, 32a

The case sub judice vis a vis Bounds v. Smith is in pari passu

therewith considering this Court's statement therein set forth infra.

They argue that under Johnson v. Avery, as long

as inmates communication on legal problems are

not restricted, there is no further obligation to

expand State funds to implement affirmately the

right of access. This argument misreads the case.

Id. 430 U.S. at 823, 97 S.Ct. at 1496

From the forgoing it is obvious the Third Circuit Court of

Appeals’ affirmance of the District Court's Orders and Opinions was

legally correct, Ergo for the forgoing reasons set forth supra,

Petitioners' Writ of Certiorari should be denied.

2 ae ae ae a ae ae ae ae ae ae ae eae ae ae ae ae ae ae ae ae ake oe ae ae ak ate ae ae ak ake a

2. The Court should not grant the Petition for there is no new

important Constitutional issues raised by the decision of the

Court of Appeals. Nor does the decision severely curtail the

discretion of prison officials nor impose on the State

obligations of uncertain textual footing in the Constitution.

Contrary to the petitioners' assertions in their Writ of Certiorari,

the respondents herein provide inmates assistance in direct appeals

as well as motions for new trials and motion in arrest of judgment

(i.e. these motions are pre-judgment motions) along with Habeas Corpus

Petitions, Civil Rights actions, and misconduct hearings, etc.

Cf. l4a & 15a. This assistance is carried out by respondents under

the stricture and security of the petitioners. This Court has long

recognized prisoner's right to such assistance as that provided in the

case sub judice. Cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 474

(1969); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974)

However, the petitioners argue this assistance should be

discarded because this right is not extended to our counterparts

who are illiterate and indigent in free society. However State law

does ipso facto provide for free legal assistance for indigent citizens

amoung the free populace, e.g. see Title 16 P.S. section 5199, 8A

(i.e. Legal aid service to indigent idleness in civil matters); accord

_ American Liberties Union. Also see 16 P.S. section 9960.1 thru

9960. 10a known as the Public Defenders Act, specifically see section

9960.6 and 996010a (i.e. Representation given indigent citizens in

criminal matters), accord Rule 316 of the Pennsylvania Rules of

Criminal Procedure.

Even though the Constitution does not provide judicial remedies

for every sociai and economic ill (i.e. the respondents herein

believes the government has an affirmative duty to provide for the

general welfare of all its citizens, Cf, Preamble of United States

Constitution, accord Article 1 Section 8 Clause 1, And the Court

has an affirmative duty to interpret and enforce the same. Article 3

Section 1 and Section 2, Clauses 1 and 2.). The government does

have Constitutional obligations to the free world, which often differs

radically in the prison context.

Because of the very fact of incarceration, the Supreme Court

has recognized that

It is but just that the public be required to care

for the prisoner, who cannot by reason of the

deprivation of liberty, care for himself

(or herself).

Ci. Monmouth County Corr. Inst. Inmates v. Lanzaro,

834 F.2q 326, at 341 (3rd Cir. 1987)

-10-

Furthermore the Court stated that cost will not justify the

complete denial of Constitutional rights, particularly when due to

imaction or failure of the State to provide the necessary funds.

Id. 834 F.2d at 336 and 337, In the case sub judice petitioners

obtain L.E.A.A. grants (i.e. Law Enforcement Assistance Admini-

stration grants pursuant to 42 U.S.C.A. section 3711 et seq.) to

augment any de minimis cost herein. The respondents op cit

predates Bounds v. Smith, supra, by at least 7 years. Now that the

petitioners have decided to install an addendum (i.e. a law library)

with incurred cost, they should be commended. However, by no

means should it be accepted in this case as an object toeradicate

respondents, who are the only impetus for meaningful access to the

Courts for most of Graterford's inmates.

This Court should not look at the case sub ar as vacuo,

for this case involves the First Amendment right to petition the

government for a redress of grievances via the Court. For most of

Graterford inmates, this right would be impervious and a mere

chimera save the respondents.

mY es

CONCLUSION

For all the forgoing reasons, the Petitioners' Writ of

Certiorari should be denied, and the decision of the Court of Appeals

For The Third Circuit should be affirmed.

Respectfully submitted,

Ahmad Abdul Jabbar-al Samad

a/k/a Roy Williams

Counsel for Respondents

Hugh Williams

Co-counsel for Respondents

Para-Professional Law Clinic, Inc.

Post Office Box 244

Graterford, Pennsylvania 19426

-]2-

APPENDIX la

UNITED STATES COURT OF APPEALS °

FOR THE THIRD CIRCUIT

No. 87-1193

(D:C.Civil 78-0538 - EASTERN DISTRICT OF PENNSYLVANIA)

UNITED STATES OF AMERICA EX REL.

PARA-PROFESSIONAL LAW CLINIC AND

BRADLEY, GEORGE #F-0281 AND

EL, JARVIS, CURTIS #F-6690 AND

ZAPATA, MONSERATE #F-0430 AND

WELLS, BEBLEY, C., JR. #F-0253 AND

MILES, CARL #F-7808 AND

CLIFTON, ZEBBIE #F-5043 and

A. ue SMITH, HAROLD X #F-6433 AND

ON BEHALF OF ALL OTHERS (INMATES)

OF THE GRATERFORD INSTITUTION

SIMILARLY SITUATED, ET AL.

Ve

KANE, ROBERT P. ATTORNEY GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA AND

ROBINSON, WILLIAM B., COMMISSIONER OF

CORRECTIONS OF THE COMMONWEALTH OF

PENNSYLVANIA AND CUYLER, JULIUS T.,

SUPERINTENDENT OF GRATERFORD PRISON

AND SIMS, DANIEL T., DEPUTY SUPERINTENDENT

OF GRATERFORD PRISON, ET AL.,

Appellants

Before: HIGGINBOTHAM, SLOVITER end MARIS, Circuit Judges.

ORDER

After consideration of all contentions raised by

appellants, it is

{a

ADJUDGED AND ORDERED that the judgment of the district

court is affirmed for the reasons noted in Chief Judge Emeritus

Joseph S. Lord's opinion.

Costs taxed against appellants.

DATED:NOV 4 1987

APPENDIX 3

os IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, ex rel.

CIVIL ACTION FILED MAR 25 1987

PARA-PROFESSIONAL LAW CLINIC, et al.

FILED

-yvo~

ROBERT P. KANE, et al. NO. 78-538

Lord, S.J. March 2 & 1987 PPLC INC

fine ADM. OFF

Backgrcund : —

On or about January 27, 1976, inmates at the f<ate

Correctional Institute at Graterford ("Graterford") formed the

Para-Professional Law Clinic ("“PPLC" or "Clinic") to provide

legal assistance to Graterford inmates. In December 1977 the

prison announced plans tu close PPLC. Cortein inmates moved

for a preliminary injunction. After a two day hearing I found

that closing PPLC violated inmates’ rights to obtain legal

assistance from other inmates and, in the absence of an

adequate law library, inmates’ rights of access to the

courts. I ordered that the Clinic be reopened. Wade v. Kane,

448 F. Supp. 678 (E.D. Pa. 1978). The Third Circuit

affirmed. Wade v’. Kane, 591 F.2d 1338 (3d Cir. 1979).

After I issued the preliminary injunction in Wade,

another group of inmates filed a complaint, Para-Professional

‘

Law Clinic v. Kane, C.A. No. 78-538, raising the same issues

addressed in Wade. These two actions were consolidated.

ENTERED: SLA SEPT

3a

Aven Ar ANIINT

After settlement negotiations proved unsuccessful, a

final hearing was held. None of the Wade plaintiffs remained

incarcerated at Graterford, and that action was dismissed with

" prejudice. I therefore have-before me only C.A. No. 78-538.

However, since this case and the Wade case were consolidated

and would unquestionably have been tried together as one case,

I considered the evidence presented in both cases rather than

engage in the duplicative and unnecessary process of

re--presenting all the evidence taken in Wade. After careful

review of the evidence presented at the original and final

hearings, I make the following findings of fact and

conclusions of law.

Findincas of Fact

1. Graterford provides inmates an institutior-run law

library ("library"). At the time of the final hearing. the

library contained up-to-date collections of United States

Supreme Court Reports, Federal Reporter, Federal Supplement,

Pennsylvania Reporter (Atlantic Reporter, Second Series),

selected federal and state statutes and Shepard's Federal

Citations. The library also contained numerous research and

reference aids.’

1. The library contains, inter alia, digests of state and

federal law; legal dictionaries; L. Yackle, Post Ccnviczion

Remedies; J. Cook, Constitutional Rights of the Accused; E.

Devitt & C. Blackmar, Federal Jury Practice and Instructions;

W. Patton, Criminal Trial Manual for Pennsylvania; C.

McCormick, McCormick's Handbook of the Law of Evidence; and

portions of Moore's Federal Practice.

HO

2. The library is open Monday thru Friday from 8:30 a.m.

to apprpximately 11:20 a.m., 1:00 9.2. to approximately 3:20

p-m., and 6:30 p.m. to 8:30 p.m.

3. The library occupies approximately 700 square feet

and can accommodate approximately twenty inmates. If more

than twenty inmates wish to use the law library at any one

time, they may work in the adjacent general library. The

general library is open Monday thru Friday, from 8:30 a.m. to

approximately 11:20 a.m., and 1:00 p.m. to approximatel: 3:20

p.m. 7

4. The library employs six or seven inmates as legal

reference aides ("aides").

5. All aides are scheduled to work at all times the

library is open. However, on average only two or three aides

are present at any particular time. At various times tne

litrary has employed a Spanish-speaxing aide.

6. Aides (but not Clinic members) are not permitted to

give inmates legal assistance or advice during working hours,

since this might diminish the number of inmates able to enlist

the primary purpose of the aides, to locate citations and law

books. Aides are permitted to assist inmates only by locating

library materials and showing inmates how to use such

materials.

7. (Library aides are not required to have training in

Lege] research; the only job qualification is an interest in

working in the library. One aide has completed a

+o

state-sponsored workshop on legal research. There is no

evidence that any other aides have received training in legal

research.

8. Generally, there are no problems resulting from noise

or overcrowding in the library. There is no evidence as to

whether the library would be overburdened if PPLC is closed.

9. The library is located away from inmate cells.

Generally, inmates must apply to their cell block officer for

@ pass to obtain access to the library.

10. Inmates housed in the Classification Center must

obtain a pass from the librarian to obtain access to the

library.

11. There is no evidence of a system whereby innetes who

wish to confer concerning legal problems can gain access to

the library at the same time. There is no regulation

prohibiting inmates who wish to confer concerning legal

problems from attempting to obtain library passes for the same

time. There is evidence that passes are not always honored.

AS a practical matter, it is difficult for inmates to arrange

to meet in the library to confer about legal problems.

12. Inmates placed in administrative or disciplinary

custody are housed in the Restricted Housing Unit ("RHU") or

in E Gallery. There are approximately forty inmates housed in

RHU and approximately 120 inmates housed in E Gallery. These

inmates are not authorized to leave their housing units and

are unable to obtain passes for the library.

Ga

13. Inmates on RBU or E Gallery may submit a request slip

for a. case or book, or legal topic they wish to have

researched. Aides perform requested research. ne or two

Gays after receiving a request Slip, the library will provide

three or four books or ences.

14. The Tibrary provides a pencil and few sheets of paper

upon request.

15. The library contains no Spanish-language legal

reference materials.

16. Graterford inmates take placement tests in reading,

spelling and arithmetic. A study completed several years ago

found that Graterford inmates scoreé at the 7.3 grade level on

these tests. A more recent study ‘ound that the average

reading level was at the 6.4 grade level.

17. A report completed several yesrs ago estimated that

approximately 23% of Graterford inmates reac at a

"“pre-functional" level. The Director of Treatment estimates

that 300 to 325 Gratecford inmates are function: .ly

illiterate.

18. A handbook produced by the inmate-run Prison Literacy

Project states that the Graterford education Gepartment

estimates that 1400 of 2400 Graterford inmates are

functionally illiterate.

19. A Clinic member estimated that, in 1978, 30 to 50% of

“Graterford inmates were functionally illiterate.

TVA

-5-

20. Approximately one-third of the 168 Hispanic inmates

at Graterford can understand, read and write English.

Spanish-speaking inmates who cannot read or write English need

assistance to utilize library materials.

21. Graterford offers a variety of educational programs,

including an adult basic education program leading to a high

school equivalency diploma, a computer literacy course, and a

tutoring program in English as a second language.

22. Prison counselors are available to help illitere-e

inmates contact attorneys and courts. A Spanish-speaking

counselor is available to assist Hispanic inmates. Counselors

are not qualified to give legal advice to ‘inmates.

23. PPLC is a non-profit corporation formed under

Pennsylvania law for the purpose of providing legal services

to Graterford inmates.

24. PPLC presently maintains an office on each cell

block, i.e., cell blocks A, B, C, D and E. The Clinic also

has an office off the main corridor (“main office”) which is

approximately as large as two cells and an office/library of

approximately 700 square feet located in the prison school

building.

25. Inmates do not need a pass to visit the Clinic office

on their cell block. Inmates have access to the Clinic office

on their ceil block at any time the office is open.

Coa

26. Clinic cell block offices are open from 8:00 a.m. to

11:20'a.m., 1:00 p.m. to 3:20 p.m., and 6:00 p.m. to 8:45

P-m.

27. The Clinic's main office and cffice/library are

accessible on a limited basis to blocks A, B, C and D

inmates. | ae

28. The Clinic office on cell biock E provides legal

assistance to inmates in administrative and disciplinary

custody. Clinic members obtain special passes to enter cell

block E.

29. Clinic members perform legal services for other

Graterford inmates. There are approximately sixteen to twenty

Clinic members. ; .

30. Clinic members represent inmates in Post-Conviction

Hearing Act cases, motions for new trial, direct appeals,

motions in arrest of judgment, habeas corpus petitions, civil

rights actions, misconduct hearings and other actions

aftecting inmates’ welfare. Clinic members also help inmates

Prepare letters to courts and outside counsel, and explain

communications to inmates from courts and outside counsel.

31. In 1984 PPLC produced 172 notices of appeal, 984

writs, motions and‘petitions, 78 letters to judges, 191

letters to attorneys, 113 letters to clerks of court, and 90

miscellaneous letters.

32. Clinic members often work in excess of twelve hours

per day on behalf of inmates.

Ao

33. On numerous occasions, Clinic members have provided

both adequate and successful legal representation for

Graterford inmates.

34. In 1978, a Clini¢ member testified that 80% of the

clients he serviced over a four year period were unable to

read and comprehend legal reference materials.

35. Within a six month period, all of the Hispanics

unable to understand English are referred at one time or

another to the Clinic.

36. PPLC by-laws prohibit members from receiving

compensation from inmates for services rendered. Graterford

pays between $520 and $820 per month in salary to members of

* the Clinic.

37. PPLC services many inmates unable to obtain court

appointed counsel. Inmates are generally unable to obtain

court appointed counsel to ascertain whether they have claims

upon which relief can be granted.

38. By representing inmates at very low compensation from

Graterford and without fee from inmates, the Clinic enables

courts to avoid incurring the expense of appointing counsel in

Many cases. ;

39. Prison regulations do not permit more than one

Client inside a cell block office at any one time. Therefore,

the cell block offices provide private areas conducive to

confidential legal communications.

\Ou

40. PPLC's main office may be used for confidential

legal discussions.

41. PPLC's office/library in the school building does

not afford the privacy necessary for confidential legal

discussions.

42. Up to five pairs of inmates can hold confidential

legal discussions in the law library. In addition, several

pairs of inmates could hold confidential legal discussions in

the general library.

43. Prisoners may do legal work in their cells.

However, prisoners are not permitted inside another inmate's

cell. Therefore, inmate cells may not be used for

‘confidential legal discussions.

44. Although inmates are not prohibited from assisting

each other in legal matters, due to the noise level an4

traffic interruptions, the block recreation facilities are

unsuitable for confidential legal discussions.

45. If the Clinic is closed and members are assigned to

other full time jobs, it is unlikely that they will have the

time or the energy to perform legal services for other

inmates.

46. There aré approximately 25 to 30 well known

jailhouse lawyers who are not Clinic members.

47. There is no evidence of a system, other than the

Clinic, whereby inmates who require legal assistance and

Won

inmates who are willing and able to provide legal assistance

can officially make their presence known to one another.

48. Other than the library and research aides,

Graterford provides no legal services or assistance to

inmates.

49. Graterforé’s innate capacity is 2100. At the time

of the final hearing, Graterford's inmate population exceeded

2500.

50. Prison overcrowding has led to Goubie celling.

Double celling presents security concerns and aéministrative

problems.

51. Due to prison overcrowding, an area off the main

corridor has been converted into a dormitory. ;

52. A number of cells are presently used for storage.

53. PPLC*s main office and office/library are not

Suitable for housing inmates. Closing all PPLC block offices

would provide housing space for 5 to 10 inmates.

54. Increased inmate population has led to increased

inmate movement through the institotion and difficulty in

monitoring such movement. Contraband is passed from one cell

block to another as inmates travel through the main corridor.

55. Clinic members add to general inmate movement by

travelling to various Clinic offices. There is no evidence

that PPLC members have abused their privileges to nove within

the prison.

12a

-10-

56. Due to space limitations, dhe prison cannot

adequately store and safeguard inmate property.

57. If the Clinic is closed, the prison intends to use

PPLC's main office as a storage area for inmate property.

- Discussion

At the time I issued the preliminary injunction,

Craterford's library did not contain current volumes of United

States Supreme Court Reports, Federal Reporter, Atlantic

heporter, or copies of §§ 2254 and 2255 of Title 25 of the

Dnited States Code (and annotations thereto), the Federal

Rules of Criminal Procedure, the Federal Rules of Civil

Procedure, and various other indispensable legal research

material. I had no difficulty finding that the library was

inadequate to preserve inmates* constitutional rights. Wade,

448 F. Supp. at 684. The library has been substantially

upgraded and is no longer constitutionally inadequate because

of a lack of legal material.

However, the right at issue is not the right to an

adeguate law library, but rather the “fundamental

constitutional right of access to the courts." Bounds v.

Smith, 430 U.S. 817, 828 (1977). “The central question in

evaluating whether a law library adequately provides

meaningful access to the courts is whether the facility will

enable the prisoners to fairly present their complaints to a

@istrict court." Cody v. Billard, 599 F. Supp. 1025, 1060

(D.5.D. 1984) (quoting Cruz v. Hauck, 627 F.2d 710, 720 (5th

jaa «

Cir. 1980)). As the library is unavailable to prisoners in

admini'strative or disciplinary custody, and is useless to

those who are functionally illiterate, the library, by itself,

is totally ineffectual to preserve the fundamental right of

access to the courts of these prisoners.

A. Inmates'in Administrative and Disciplinary Custody

Prison regulations deny physical access to the library

to the approximately 160 inmates in administrative or

disciplinary custody. The prison's program of providing a

small number of cases or books upon request does not satisfy

the constitutional obligations set forth in Bounds.

Legitimate security oonsidetetions may justify

restrictions on direct access to the library. See Campbell v.

Miller, 787 F.2d 217 (7th Cir.), cert. denied, 107 S. Ct. 673

(1986) However, “[sS]imply providing a oi eneie with books in

his'cell, if he requests them, gives the prisoner no

meaningful chance to explore the legal remedies he might

have.” Williams v. Leeke, 584 F.2c 1336, 1339 (4ti Cir.

1978) (Haynsworth, C.J.), cert. denied, 442 U.S. 911 (1979).

Accord, Cruz, supra; Canterino v. Wilson, 562 F. Supp. 106,

110 (W.D. Ky. 1983). This is so for several reasons. First,

it is simply “unréalistic to expect a prisoner to know in

advance exactly what materials he needs to consult."

Wiliiams, 584 F.2d at 1339. Second, prison "[rJestrictions on

the amount of legal material[) .. . limit[s) the usefulness

of research outside the library." Cepulonis v. Fair, 732

\An

F.2d 1, 4-5 (ist Cir. 1984). Legal research often involves a

painstaking study of a series of cases. Bounds suggested

that, before filing a pleading, a prisoner would have to

research “jurisdiction, venue, standing, exhaustion of .

remedies, proper parties plaintifé and defendant and types of

relief available," as well as substantive law. Bounds, 430

U.S. at 825. Every judge and lawyer knows that, as a

practical matter, it would be impossible to research

adequately an action when access is limited to three or four

books produced on one or two days notice.

There is no evidence that other prisoners may only use

three or four law books at one time. Thus, the prison

regulations violate Graterford's duty to insure that the

“opportunity to do legal research [afforded those in

administrative or disciplinary custody} must be at least the

equivalent of the opportunity that is available to an inmate

who is permitted to go personally to the prison law library."

Wojtczak v. Cuyler, 460 F. Supp. 1288, 1301 (E.D. Pa. ‘979).

See also Smith v. Bounds, 610 F. Supp. 597, 602 (E.D.N.C.

1985) (inmates confined to disciplinary segregation must have

the same access to law library as other inmates). These

restrictions are not alleviated by the existence of jailhouse

lawyers, or the assistance of research aides or prison

counseloss. There is no evidence that inmates in

administrative or disciplinary segregation have access to

jailhouse lawyers. Assuming arguendo that these inmates could

\Sa

-13-

meet with jailhouse lawyers, there is no area in which they

could engage in confidential legal discussions. Finally,

there is no evidence that self-appointed jailhouse attorneys

provide adequate legal assistance.

‘Only one of the legal research aides has completed a

course in legal research. ‘An untrained legal research staff

is insufficient to safeguard inmates’ rights of access to the

courts. Although prison counselors may contact courts or

attorneys on an inmate's behalf, they are not trained to do

legal research or writing. Thus, they cannot compensate for a

sack of access to the library.

There is no allegation or evidence that the legal

research and services provided by Clinic members to inmates in

administrative or disciplinary custody is inadequate. In the

absence of other prison programs, eliminating the Clinic would

leave those in administrative or disciplinary custody with

inadequate access to the library and the courts, in violation

of these inmates’ fundamental constitutional rights.

B. Functionally Illiterate Inmates

Courts have consistently held that the mere provision

of an adequate law library does not necessarily satisfy the

constitutional obligation set forth in Bounds. An adequate

law library, by itself, cannot provide meaningful access to

the courts for those inmates unable to read and understand

library materials. See, e.g., Cruz, 627 F.2d 710, 721

("Library books, even if ‘adequate’ in number, cannot provide

\Ga

- 14-

access to the courts for those persons who do not speak

English or who are illiterate"); Cody, 599 F. Supp. at 1061

("a law library, without more, is not sufficient to enable

prison inmates .. . unschooled in the basics of legal writing

to prepare a petition or complaint") (citation omitted);

Glover v. Johnson, 478 F. Supp. 1075, 1096 (E.D. Mich. 1979)

(an adequate library “cannot provide meaningful aid to a

prisoner unschooled in the most basic techniques of legal

research"); Czrnterino, 562 F. Supp. at 108-112 (mere access

to an adequate legal library is unavailing to prisoners

lacking sufficient intellectual ability to use the

facility).

Defendants’ contention that “law libraries alone will

adequately satisfy <he right to access to the courts” rests

upon passages in Bounds stating that prisons must provide

“prisoners with adequate law libraries or adequate assistance

from persons trained in the law,” Bounds, 430 U.S. at 828

(emphasis added) end that “adequate law libraries are one

2. As one court pointedly observed:

{A]ecess to the fullest law library anywhere

is a useless and meaningless gesture [for) the

great mass of prisoners ... . To expect

untrained laymen to work with extremely

unfamiliar books, whose content they cannot

understand, may be worthy of Lewis Carroll, but

hardly satisfies the substance of the

constitutional duty.

Access to full law libraries makes about as

much sense as furnishing medical services

through books like: “Brain Surgery Self-Taught"

+ « « along with scalpels, drills, hemostats,

sponges and sutures. me Yon |

Falzerano v. Collier, 535 F. Supp. 800,803 (D.N.J. 1982). ~

constitutionally acceptable method to assure meaningful access

to the tourts." Id. at 830. Bounds reviewed a case decided

on summary judgment, without the benefit of an evidentiary

hearing. Thus, although the Supreme Court rejected the

argument that inmates in general are “ill equipped to use” law

libraries, ia. at 826, there is no indication that the Bounds

record included evidence regarding inmate illiteracy. See

also Smith v. Bounds, 538 F.2d 541 (4th Cir. 1975) (no

@iscussion of inmate illiteracy).? DuPont v. Saunders, 800

F.2d © (ist Cir. 1986) and Cepulonis v. Fair, supra, relied

upon by defendants, do not address the question of whether an

adequate law library provides functionally illiterate immates

with meaningful access to the courts. Similarly, in Campbell,

Supra, there was no allegation that the appellant lacked the

capacity to utilize the prison's law library.

In Hooks v. Wainwricht, 536 F. Supp. 1330 (M.D. Fla.

1982), the court found that more than fifty percent of

Plorida's inmate population was functionally illi‘erate.

Senior District Judge Scott concluded that no plan utilizing

libaries alone covld assure meaningful access to the courts,

and ordered defendants to provide “assistance of counsel, in

3. In a later proceeding, the court found that the illiteracy

rate of North Carolina inmates was extremely high. Smith v-

Bounds, 610 F. Supp. 597, 604 (E.D.N.C. 1985). This was one

of several factors that led the court‘to find that defendants‘

library system did not provide adequate access to the courts.

"Senior District Judge Dupree ordered defendants to provide

inmates with assistance of counsel.

Ga

some form." Id. at 1349. The Eleventh Circuit reversed,

a

declaring that Bounds does not require states to provide

legal counsel to inmates. Hooks v. Wainwright, 775 P.2d 1433

(11th Cir. 1985). However, the appellate court recognized

that providing inmates "access to libraries in prison, or

access to people who have access to libraries," as I do here,

is "a far cry from constitutionally requiring the state to

provide legal counsei for the imprisoned." Id. at 1437.

Thus, Hooks d-zs nOt stand for tne proposition that an

adequate )aw library provides functionally illiterate inmates

with meaningful access to the courts. It merely does not, as

I do not here, require counsel as the only meaningful

alternative.

It is difficult to determine the precise number of

illiterate or functionally illiterate prisoners at Graterford.

Evidence was presented on-the number of illiterates, the

number of functional illiterates, the percentage of prisoners

who read at a “pre-functional" level, and the percentage of

Clinic clients unable to comprehend legal materials. In most

cases the operative terms remained undefined. For purposes of

the constitutional right of access to the courts, functional

literacy should aot be measured in terms of a particular

reading level. Rather, functional literacy, for these

purposes, means that an inmate can, “with reasonable

adequacy,” fairly present his complaint to the courts.

Johnson v. Avery, 393 U.S. 483, 489 (1969). See also Cruz,

\Qa

627 F.2d at 720. Surely, all those considered illiterate

or ine onal at a “pre-functional" level are unable to present

fairly a complaint or petition to the courts without

assistance. Similarly, Spanish-speaking inmates who cannot

read or write English are unable to present, with reasonable

adequacy, complaints to the courts without assistance. The

evidence establishes that a substantial percentage of

Graterford inmates are not functionally literate. This

evidence merely confirms the Third Circuit's commonsense

observation “of the fact that many prisoners are unable to

prepare legal materials and file suits without assistance."

Rhodes v. Robinson, 612 F.2d 766, 769 (3d Cir. 1979) (Seitz,

C.J.).

It is also difficult tc determine accurately the

percentage of PPLC work done on behalf of functionally

illiterate inmates. A Clinic executive was unable to estimate

this figure at the March 1985 hearing. In 1978, a PPLC member

testified that 80% of his clients were not functionally

literate. Within any particular six month period, all the

Hispanics who cannot read and understand English are referred

to PPLC. The evidence establishes that a substantial

percentage of PPLC's work is done for inmates who are not

functionally literate.

20a

.—¥

The legal research aides and educational programs

Graterford provides are insufficient to insure that

functionally iliiterate inmates have meaningful access to the

courts. The library staff includes only one trained research

aide, and:although all aides are supposed to be in the library

@uring working hours, typically at least half the aides are

not present. In addition, it appears that only rarely is a

Spanish-speaking aide present. Finally, aides are prohibited

from provitirng legal e4vice to inmates during working

hours. 4

The prison is to be commended for providing a variety of

educational programs. However, effectively denying a

functionally illiterate inmate meaningful access to the courts

until he completes a remedial education program is simply not

accept.tie. Finally, although inmates are not prohibived from

conferring with non-Clinic jailhouse lawyers, there is no

evidence regarding the competency of jailhouse lawyers or the

ease of meeting and holding confidential legal discussions

with them. Although I specifically ordered the presentation

of evidence regarding the existence of a system whereby

‘inmates who require legal assistance and inmates who

4. For these reasons, the instant case is distinguishable

from Lindquist v. Idaho State Board of Corrections, 776 F.2d

° 951 (Sth Cir. }. in Lin quist, Inmate law clerks received _

training in legal research and writing skills. The clerks

viewed two 45 minute video cassette tapes and completed a

training program led by an attorney. The court took judicial

notice of the fact that the clerks “do an excellent job." Ic.

at 857. In addition, it does not appear that the clerks in

Lindquist were prohibited from giving legal advice or writing

assistance to inmates.

218

are willing and able to provide legal assistance can

officially make their presence known to one another,

Gefendants presented no evidence of any such system. Thus,

there is no evidence that, if PPLC is closed, functionally

illiterate inmates will have “alternative and readily

available means of obtaining assistance of at least equal

caliber." Bryan v. Werner, 516 F.2d 233, 237 (3d Cir. 1975).

Relying on the prison grapevine to identify jailhouse lawyers

is not sufficient to protect prisoneis' constitutional rights.

For this reason, the rights of functionally illiterate

prisoners would be violated if PPLC is eliminated.

C. Security Concerns

Defendants presented evidence that PPLC's use of seven

Gifferent areas exacerbates security and space problems in the

prison. Generally, courts should afford great deferenc- *>

prison officials in matters concerning the security and

administration of prisons. However, prison officials may not

restrict the scope of inmates’ constitutional rights by making

automatic and conclusory assertions of discipline and security

in the support of restrictive policies. Cleavinger v. Saxner,

106 S.ct. 496, 504 (1985).

The link between problems caused by overcrowding and

PPLC's use of prison space is tenuous at best. Graterford's

Population exceeds ca>dacity by some 409 irmates. I do not

underestimate the serious problems this causes prison

administrators. However, the main office and office/library

22a

are not suitable for housing inmates. The office on E block

provides the only space to hold confidential legal discussions

for those in administrative or disciplinary custody. Closing

the clinic offices on blocks A, B, C and D would provide

housing for between 4 and 8 prisoners. However, the

constitutional rights of inmates are not to be impaired

because the State fails in its duty to provide adequate

housing. Thus, the lack of adequate prison housing does not

present a justification for clssing PPLC.

Defendants presented evidence that the increase in

traffic along the main corridor presents security concerns and

that Clinic members travel to Clinic offices via the main

corridor. With a prison population in excess of 2,500, I

reject the notion that the sixteen to twenty Clinic members

add significantly to the amount of traffic in the main

corridor. Graterford's superintendent testified that even if

the preliminary injunction is lifted, he would not close

PPLC's office/library. If the cell block offices are closed,

then the only remaining places inmates could hold confidential

legal discussions with a Clinic member would be in the

library, general library, or PPLC's main office. Inmates

necessarily use the main corridor to reach any of these

places. Thus, closing the block offices, while keeping the

main office open, would result in increased innate movement in

the main corridor.

23a

Finally, the prison lacks adequate space to store and

safeguard inmate property. Defendants would like to use

PPLC's main office as a storage area. Although inadequate

storage space is not an insignificant problem, it cannot

justify restriction of the fundamental constitutional right of

access to the courts. Por these reasons, security and space

concerns do not justify the closing of any of PPLC's offices.

D. Relief

The final issue to be addressed is whether closing any of

PPLC's offices will violate inmates’ fundamental

constitutional right of access to the courts. Defendants

have represented that, even if the injunction is lifted, they

have no plans to shut:down the cell block E office or the

office/library. However, defendants would eiiminate the

offices on cell blocks A, B, C and D and the main office.

Evidence at the initial hearing established that closing the

block offices would overburden the main office. There is no

evidence that PPLC could provide adequate services without the

use of its main office or that “reasonable alternatives for

obtaining assistance” would be available. Bryan, 516 F.2d at

237. :

Defendants have not questioned whether plaintiffs have

suffered an actual injury, or an “instance in which an inmate

was actually denied access to the courts.” Hudson v.

Robinson, 678 F.2d 462, 466 (3d Cir. 1982) (quoting Kershner

24a

v. Mazurkiewicz, 670 F.2d 440, 444 (3d Cir. 1982)). After the

Wade hearing, I found that closing the Clinic “has caused the

plaintiffs and those who benefit from the services of Clinic

members to suffer irreparable harm." Wade, 448 F. Supp. .at

683. There has ‘been no showing that inmates have been denied

access to the courts since entry of the preliminary

injunction. Assuming that the prelimirary injunction served

its purpose —— to prevent irreparable injury to picintiffs

pendente lite —- such a showing is impossible.

I refuse to lift the injunction and wait for another

inmate to be denied access to the courts. To wait for an

inmate with a valid habeas corpus or civil rights claim to be

denied access to the courts is intolerable; based on my

findings in Wade and above, such an injury is inevitable.

For the foregoing reasons, to allow defendants to close

PPLC would violate the prison's “affirmative obligation[] to

assure all prisoners me ringful access to the courts."

Bounds, 430 U.S. at 824 (emphasis added).

98a

-23-

a Conclusions of Law

1. This court has jurisdiction over the subject matter

and parties in this case.

2. Because the Clinic gives legal advice and provides

legal representation to functionally illiterate inmates, and

inmates in administrative and disciplinary custody, it has

standing to assert the constitutional right of access to the

courts of these inmates. ;

3. Closing the Clinic would violate cne constituticnal

rights of certain Clinic clients, including functionally

illiterate clients and those housed in administrative or

_@isciplinary custody, in violation of 42 U.S.C. § 1983.

4. Defendants have failed to provide any justificatior.

sufficient to warrant the violations of constitutione! rights

that would result from closing PPLC.

5. Plaintiffs are entitled to permanent injunctive

relief.

2G46

-~74-

APPENDIX 47a

~T

4

RECFIVED

MAR 80 1987

PPLG INC,

IN THE UNITED STATES DISTRICT COURT

«ais FOR THE -EASTERN DISTRICT OF PENNSYLVANIA

- UNITED STATES OF AMERICA, ex rel. CIVIL ACTION

:

PARA-PROFESSIONAL LAW CLINIC, et al. :

it Pa .. :

ae: -v- Set :

:

:

a FILEO MAR 25 1987

NO. 78-538 F | L E D

ROBERT P. KANE, et al.

ORDER

Sine ‘ ‘2

"AND NOW, this 24° day of March, 1987, it is ORDERED

that judgment is entered in favor of the plainciffs and —

against the defendants. Defendants are PERMANENTLY ENJOINED?-P-LC. INC.

“p ADM. OFFICE

from closing any PPLC office or facility.

BY THE COURT:

/

re a7 eae 58 at

Joseph 3. Lord, 111 —.

ENTERED: 3/26/27

CLERK GF CGURT . awdedivenaae’

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FILEO MAR 26 1987

UNITED STATES OF AMERICA, ex rel. CIVIL ACTION

PARA-PROFESSIONAL LAW CLINIC,

et al.

:

:

:

“ :

:

ROBERT P. KANE, et al. NO. 78-538

So 2 ) 2.2

f PPL

AND NOW, this 7% “ day of March, 1987, it is ORDERED Ovi

the order entered March 25, 1987 is MODIFIED to read as

follows:

AND NOW, this 26th day of March, 1987, it is ORDERED that

judgment is entered in favor of plaintiffs and against

Gefendants. Defendants, their successors and their agents,

servants or employees are permanently enjoined from closing

any PPLC office or facility.

BY THE COURT:

ENTERED:_3 /27/27 —

CLERK OF COURT C*®

APPENDIX 49a 4

ba |

os 8

“agen

i". 2 + “st

3 Pt ;

ee rte

tL HA o.6

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMEPICA

EX REL.

!

PARA-PROFESSIONAL LAW CLINIC

P.O. BOX 244

GRATERFORD, PENNSYLVANIA 19426

AND

GEORGE BRADLEY, #F-0281

AND

CURTIS JARVIS EL, #F-6990

AND

MONSERATE ZAPATA, #F-0430

AND

BEBLEY C. WELLS, JR., #M-0253

AND

CARL MILES, #F-7808

AND.

ZEBBIE CLIFTON, #F-5043

AND

HAROLD X. SMITH, #F-6433

AND

ON BEHALF OF ALL OTHERS

(INMATES) OF THE GRATERFORD

INSTITUTION, SIMILARLY SITUATED

ET AL.,

(PLAINTIFFS)

VS.

ROBERT P. KANE, ET AL.

ATTORNEY GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA

AND

WILLIAM B. ROBINSON, ET AL.

COMMISSIONER OF CORRECTIONS

OF THE COMMONWEALTH OF

PENNSYLVANIA

AND

JULIUS T. CUYLER, ET AL.

SUPERINTENDENT OF

- GRATERFORD PRISON

AND

DANIEL T. SIMS, ET AL.

DEPUTY SUPERINTENDENT

OF GRATERFORD PRISON,

(DEFENDANTS)

00 06 60 00 00 68 02 06 00 08 00 06 00 08 06 08 66 08 80 06 80 86 06 88 68 06 08 08 80 06 60 06 00 06 06 06 80 60 80 80 08 88 88 08 09 8 o8 S88 Of oe

CIVIL ACTION

NO. 78-538

C44 o.)

Vv

BECHTLE, J. ,

AND NOW, to wit, this it, ddy of Cie uf , 1978,

after consideration of the pleadings herein and after review of the Report and

Recommendation of Tullio Gene Leomporra, United States Magistrate, it is

- ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The Petition for Leave to Proceed in Forma Pauperis is

GRANTED. 28 U.S.C. §1915(a).

It is so ORDERED.

BY THE COURT:

_ Aiea. C Bustle

LOUIS c. BECHTLE

ATERED, Y/ 2 1/98

-_ ae whe 7 ss

~~

er re Sige DOR.

ral

hee i] F

soc

| a

me See

: . ot cae

' . ee

tah Me,

uP 4

ie i

“2

BaP, | | a

ath,

2 -

7 .

4) ee

’ .

: | Zz

F \ a

wa ee

; a ih b+

¢ MA

: | ¥

- a. oe

1”

f

-— : :

:

7 ‘

| ~ oat

fy

Ysa

7

» a

*

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 87-1193

United States of America Ex Rel.

Para-Professional Law Clinic, et al.

vs.

Kane, Robert P., etc., et al., Appellants

(E.D.Pa. Civi} 78-0538)

To: CLERK

1) MoTienw BY APPELLEES

—_—_ _———

il.

OFFICE OF THE CLERK ) PM

UNITED STATES COURT OF APPEALS m

21400 U. 8. COURTHOUSE ey se

€0! MARKET STREET feat

PHILADELPHIA. Pa 18106 --

Orricia, Ove mass

PERALTY FOR PRrvetE wee R00

Mr. Ahmad Abdul Jabbar-al Samad, M-1008

Mr. Hugh Williams, F-2932

Ms. Zebbie Clifton, F-5043

Mr. Bebley Wells, M-0253

State Correctional Institution

P.O. Box 244

Graterford, PA 19426

The foregoing Motion ‘4S BewieD AS Vane esstvy Exters

IV SefAaR AS Fitiwe TYPE RITTEW RIC S. TL

APPLELEES JABCAR-AL samaDd, Chere 4x0

Wikesrams ARL 6RAX TED Li4ve To ff4e

Tyfi.rmitte~ EG8RIEFS. wwsotaAn AS WE

(APPL LCE, Wwhers , DID WOT Stew THe Merion

AWD THE Oren aMracLLEesS MOT aor RlLevcstT Celie:

Rtriél CRATES sw PRs

ow MS BekacF, THE . For the Court, e

_AwTwn Dees wet Aftep 7 hilly Sn, 3

— ~ Clerk

(50x)

: » 1987 dt/cc: Maria Parisi Vickers, Esq.

— (Mr. Ahmad Abdul Jabbar-al Samad, etc.)

CERTIFICATE OF SERVICE

HUGH WILLIAMS, co-counsel and secretary of Respondent

Para-Professional Law Clinic, Inc., hereby certifies and says

that a true and correct copy of the Respondents’ Brief In Oppostion

To Petition For Writ of Certiorari To The United States Court of

Appeals For The Third Circuit, was served on the persons below

and in the manner and date indicated

LeRoy Zimmerman

Attorney General

John G. Knorr, II

Chief Deputy Attorney General

Gregory R. Neuhauser

Senicr Deputy Attorney General

Maria Parisi Vickers

Chief Deputy Attorney General

Chief, Eastern District

Counsel of Record

Attorney for Petitioners

206 State Office Building

Philadelphia, PA. 19130

Via First Class U.S. Mail e Us

SUaams

Hugh

illiams, Sec'y

Para-Professional Law Clinic

g

Dated: MARS 1988 Post Office Box 244

Graterford, Pennsylvania 19426

Under of penalty of law pursuant to 18 U.S.C. section 1001