Petition for Writ of Certiorari — Crawford-El v. Britton

g “FILES”

L

91 1836 MAY 14 joge

DOG Of BIE. CLEAK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

LEONARD R. CRAWFORD-EL,

Petitioner,

PATRICIA BRITTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DANIEL M. SCHEMBER

GAFFNEY & SCHEMBER, P.C.

1666 Connecticut Avenue, N.W.

Suite 225

Washington, D.C. 20009

(202) 328-2244

Counsel of Record for Petitioner.

May 14, 1992

Washington, 0.C. ¢ THIEL PRESS + (202) 328-3286

2

QUESTION PRESENTED

Does intentional official seizure and diversion of all of a

prisoner's papers pertaining to his pending pro se federal

litigation--forseeably causing their unjustifiable deprivation for

several months--violate the constitutional right of court

access, and warrant recovery of mental distress damages,

shipping expense incurred in retrieving the papers, or a

nominal award?

CE

TABLE OF CONTENTS

QUESTION PRESENTED i

TABLE OF AUTHORITIES iil

OPINIONS BELOW ‘ |

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 2

STATEMENT OF THE CASE 4

Facts 4

District Court Proceedings 9

Appellate Proceedings 1]

Ms. Bnitton's Argument 1]

Mr. Crawford-El's Arguments 12

The Decision of the Court of Appeals 16

REASONS FOR GRANTING THE WRIT 19

I. The lower court's holding that the

constitutional right of court access is not

violated by lengthy, intentional, unjustified

deprivation of all of a prisoner's legal

papers--unless injury to litigation actually

results--conflicts with the decisions of

other circuits and is incompatible with

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

II. The lower court's refusal to allow

recovery of out-of-pocket loss and mental

distress damages for violation of the

constitutional right of court access is

incompatible with Memphis Community

School Dist. v. Stachura, 477 U.S. 299

(1986) and Carey v. Piphus, 435 U.S. 247

(1978).

CONCLUSION

APPENDIX

Opinion of the Court of Appeals

District Court Order of May 10, 1990

District Court Order of August 31, 1990

District Court Order of December 21, 1990

Order by the Court of Appeals Denying Deneien:

TABLE OF AUTHORITIES

Cases:

Bolling v. Sharpe,

347 U.S. 497 (1954)

Bounds v. Smith,

430 U.S. 817 (1977)

19

21

22

la

17a

19a

24a

26a

13, 19

iv

Carey v. Piphus,

435 U.S. 247 (1978)

Carter v. Hutto,

781 F.2d 1028 (4th Cir. 1986)

Chandler v. Baird.

926 F.2d 1057 (11th Cir. 1991)

Fotos v. Firemen's Ins. Co..,

533 A.2d 1264 (D.C. 1987)

Hobson v. Wilson,

737 F.2d 1 (D.C. Cir. 1984)

Holloway v. Dobbs,

715 F.2d 390 (8th Cir. 1983)

Hossman v. Spradlin,

812 F.2d 1019 (7th Cir. 1987)

Hudson v. Palmer,

468 U.S. 517 (1984)

Memphis Community School District v. Stachura,

477 U.S. 299 (1986)

Mitchell v. Forsyth,

472 U.S. 511 (1985)

~—Monnell v. Department of Social Services,

436 U.S. 658 (1978)

Monroe v. Pape,

365 U.S. 167 (1961)

20, 21

13, 15

20

14

21

20

20

18

21

10

10

16

Peterkin v. Jeffes,

855 F.2d 1021 (3d Cir. 1988) 20

Ryland v. Shapiro,

708 F.2d 967 (Sth Cir. 1983) 2

Sands v. Lewis,

886 F.2d 1166 (9th Cir. 1989) 20

Siegert v. Gilley,

895 F.2d 797 (DC. Cir. 1990), aff'd on other

grounds, 111 S. Ct. 1789 (1991) 1]

Simmons v. Dickhaut,

804 F.2d 182 (1st Cir. 1986) 2, 13, 15

Turner v. Safley,

482 U.S. 78 (1987) 3,14

In The

Supreme Court of the United States

October Term, 1991

LEONARD R. CRAWFORD-EL,

Petitioner,

V.

PATRICIA BRITTON,

Respondent.

Petition For A Writ Of Certiorari

To the United States Court of Appeals

For the District of Columbia Circuit

Leonard R. Crawford-E] petitions this Court to review

the judgment of the United States Court of Appeals for the

District of Columbia Circuit, which answered no to the

question presented.

OPINIONS BELOW

The decision of the United States Court of Appeals

for the District of Columbia Circuit appears in petitioner's

appendix ("App.") at la-l6a and is reported at 951 F.2d

1314. The February 14, 1992 order denying rehearing is not

reported and appears at App. 26a. The May 10, 1990 Order

of the United States District Court for the District of

Columbia denying respondent's motion to dismiss is

unreported and appears at App. 17a-18a. That court's

unreported August 31, 1990 order granting respondent's

motion for reconsideration, but allowing _ petitioner

opportunity to amend his complaint, appears at App. 19a-23a.

The district court's unreported December 21, 1990 order

denying respondent's motion to dismiss the amended

complaint appears at App. 24a-2Sa. !

JURISDICTION

The judgment of the court of appeals was entered

December 27, 1991. Rehearing was denied February 14,

1992. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitutional Right of Court Access

The constitutional nght of court access has been held

to be an independent constitutional right derived from three

constitutional provisions--the First Amendment right to

petition for redress, the Due Process Clause, and the

Privileges and Immunities Clause. Simmons v. Dickhaut, 804

F.2d 182, 183 (1st Cir. 1986); Ryland v. Shapiro, 708 F.2d

967, 971-72 (Sth Cir. 1983).

U.S. Const. amend. I (excerpt)

Congress shall make no law . . . abridging ._ _ the

right of the people .. . to petition the Government for a

redress of grievances.

U.S. Const. amend. V (excerpt)

No person shall... be deprived of | liberty, or

property, without due process of law.

U.S. Const. amend. XIV, Sec. | (excerpt)

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States.'

42 U.S.C. §1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of a 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, 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.

| The Fifth Amendment Due Process Clause embraces this

restraint, and applies it to the District of Columbia. Bolling v.

Sharpe, 347 U.S. 497 (1954) (Fifth Amendment Due Process

Clause imposes on District of Columbia same restrictions as

those imposed on states by Fourteenth Amendment's Equal

Protection Clause).

STATEMENT OF THE CASE

Facts

In late July 1989 Mr. Crawford-El was one of several

District of Columbia prisoners housed by contract in a

Washington State prison. Though these prisoners had been

there only since December, 1988, District officials decided to

move them, and to reassign some of them, including Mr.

Crawford-El, to federal custody. Ms. Britton was responsible

for the transfer of the prisoners. She told Washington State

authorities to send all of the prisoners’ property to her office

in Washington D.C. Washington State officials ordered Mr.

Crawford-El and the other D.C. prisoners to surrender all of

their property for boxing and shipping. Mr. Crawford-El

complied. The property he surrendered included all of his

papers pertaining to a pending federal court civil action he

had filed pro se, as well as his only copies of administrative

tort claims for injury and loss of property, and supporting

evidence to prove those claims. Respondent's Appendix in the

Court of Appeals ("C.A. App.") at 18, 28, 53-54 71-72.

Ms. Britton and Mr. Crawford-El were well-

acquainted. Ms. Britton knew Mr. Crawford-El to be a

frequent litigator and an outspoken critic of prison conditions.

After Mr. Crawford-El invited newspaper reporters to the

District's prison complex in Lorton, Virginia in 1986,

resulting in an article quoting his criticisms, Ms Britton

chastised Mr. Crawford-El and tried to have him placed in

restrictive confinement. When this effort failed, she told him

"so long as he was incarcerated she was going to do’

everything she had to to make it as hard for him as possible."

C.A.App. 16, 123-125. During the flight to Spokane,

Washington in December 1988, Mr. Crawford-El protested an

officer's videotaping of him and other prisoners while they

were handcuffed and leg-shackled. Ms. Britton, the

"

responsible official present, rejected his protests. After a

December, 1988 newspaper article reported Mr. Crawford-

El's accusation that the District had singled out for transfer to

Washington State prisoners who had brought lawsuits against

the D.C. prison system, C.A. App. 114-117, Ms. Britton

spoke with Washington officials and branded Mr. Crawford-

El a “legal troublemaker." C.A. App. 111. In the winter and

spring of 1989 Mr. Crawford-El and many other D.C.

prisoners submitted letters to the District Mayor announcing

their intent to sue over the videotaping Ms. Britton had

allowed on the flight to Spokane. (See the attachments to Mr.

Crawford-El's brief in the Court of Appeals.)

In early August, 1989, Mr. Crawford-El and other

D.C. prisoners, having surrendered all of their property to

Washington State officials, were taken to Missouri. On

August 18, 1989 Ms. Britton arrived. Mr. Crawford-El and

D.C. prisoners James Neal and Danny Phillips each told her

that his property included legal materials pertaining to current

cases and that they needed these papers to seek judicial

redress. C.A. App. 28, 73.

On August 19, 1989 Mr. Crawford-El arrived at

Lorton. He learned that his property from Washington State

was not there. He immediately wrote Ms. Britton requesting

that his property be sent to him as soon as it was received by

her: he stated he needed his legal materials for ongoing court

cases. Mr. Crawford-El received no response to this letter.

Subsequently, he wrote to the Director of the D.C.

Department of Corrections, Walter Ridley, and asked him to ‘

locate and deliver his property to him. Mr. Crawford-E] again

mentioned his need for his legal materials. He received no

response to this letter. C.A. App. 28, 33.

On September 7, 1989 Mr. Crawford-El was

transferred to the Federal Correctional Institution (FCI) at

Petersburg, Virginia, en route to his final destination, FCI

Marianna in Florida. At Petersburg, Mr. Crawford-El and

fellow D.C. prisoner Kenneth Ward spoke with a Bureau of

Prisons official named Mr. Bender, who advised them they

could have their property sent to them upon arriving at their

final destinations. Mr. Crawford-El and Mr. Ward called Ms.

Britton by telephone and told her what Mr. Bender had said.

Ms. Britton, however, believed D.C. prisoners had no right to

have any of their property forwarded to a federal prison, and

that federal prisons would not accept shipments of D.C.

prisoner property. C.A. App. 54, 57, 74-75.

On September 28, 1989, Mr. Crawford-El, newly

arrived at FCI Marianna, again wrote to Director Ridley,

asking that Ms. Britton be directed to retrieve his property

and mail it to him. Mr. Crawford-El again stated he needed

his legal materials for ongoing cases. C.A. App. 33.

Mr. Crawford-El requested that attorney Robert

Hauhart seek return of his property. By letter dated

September 28, 1989 to District of Columbia Assistant

Corporation Counsel Paul Quander, Mr. Hauhart requested

that Mr. Crawford-El's property, and that of Kenneth Ward,

be returned to them. In part, the letter stated:

It is my understanding .. . that Ms. Britton has

declined to provide Mr. Ward and Mr. Crawford, and

others in similar circumstances, with their legal

materials, and has refused to forward their personal

property. [C.A. App. 31-32.]

On some day between mid-September and early

October, 1989, Ms. Britton released Mr. Crawford-El's

—i

property.2 C.A. App. 55. Instead of sending it to FCI

Marianna, however, Ms. Britton called Mr. Crawford-El's

brother-in-law, Jesse Carter. She told him that Mr. Crawford-

El was concerned about his property, including his legal

materials. She asked Mr. Carter to come to her office and

pick it up. Mr. Carter did so. Ms. Britton knew Mr.

Crawford-El had not authorized Mr. Carter to receive his

property.

Subsequently, at Mr. Crawford-El's request, Mr.

Carter went to see Ms. Britton and told her Mr. Crawford-El

wanted her to take the property back and deliver it to the

Lorton Property Officer for mailing to FCI Marianna. Ms.

Britton refused to do so. She said she did not see why Mr.

Crawford-El was making such a big fuss about his property

because as far as she was concerned he should be happy she

did not throw it in the trash. She told Mr. Carter federal

prisons would not accept shipments of D.C. prisoner

property. C.A. App. 28-29, 57.

On October 10, 1989 Mr. Hauhart wrote a letter to

Arthur Graves, Associate Director of the D.C. Department of

Corrections. Following the suggestion of Mr. Reeder, a

member of Mr. Graves's staff, Mr. Hauhart enclosed a copy of

his letter to Mr. Quander and said:

Mr. Reeder stated that to the best of his

knowledge residents returning from Washington State

would have their property forwarded by the

Department to their final BOP destination. This is the

2 Ms. Britton says the day was October 5, 1989. C.A. App.

55. Other evidence indicates it was in mid-September. C.A.

App. 38.

goal I seek on behalf of Mr. Crawford and Mr. Ward,

as my letter to Mr. Quander makes clear. I assume this

constitutes a reversal of the policies being pursued by

Ms. Britton which were the source of my complaint.

Please advise me at your convenience if Mr. Reeder is

correct so I may advise my clients of the policy the

Department [in]tends to follow. [C.A. App. 34.]

On December 20, 1989 Mr. Hauhart again wrote Mr.

Quander, who by then was Acting Deputy Director of the

D.C. Department of Corrections. The letter was written on

behalf of Mr. Crawford-El, Kenneth Ward, and two other

D.C. prisoners, James Neal and Edward Ashford. The letter

stated that the four prisoners still had not received their

property. It said Mr. Crawford-El's property had been

"released without permission to Jesse Carter (brother-in-law),

4241 58th Ave, Apt. 9, Bladensburg, Md. 20710, (301) 277-

0675." The letter requested Mr. Quander to “direct

appropriate staff to arrange for locating and properly

forwarding" Mr. Crawford-El's property. C.A. App. 82-83.

On January 9, 1990, Mr. Quander wrote in reply to

Mr. Hauhart's December 20 letter. Mr. Quander stated:

As pointed out in the attached letter dated December

22, 1989 from Mr. P.S. Wise, Administrator,

Correctional Programs Branch, Bureau of Prisons,

clear guidance regarding the processing of property of

DOC inmates who are transferred to federal custody is

provided.

We are therefore moving with deliberate speed to

dispatch inmates property, including the four (4)

individuals cited in your correspondence, in

compliance with mentioned direction given by the

Bureau of Prisons.

The attached December 22 letter from Mr. Wise stated:

As has been our past practice, inmates

transferring from DCDOC to BOP custody are

permitted only a small amount of personal property

which should be limited to personal care items and

legal documents. [C.A. App. 79.]

Neither Ms. Britton, nor any other District of

Columbia official, contacted Mr. Carter or any member of Mr.

Crawford-El's family to retrieve Mr. Crawford-El's property

and to forward it to him by mail from the Department of

Corrections.

Mr. Crawford-El asked his mother to mail his

property to him. She did so, at his expense. Because the

property was mailed outside prison channels, federal BOP

officials at FCI Marianna initially refused to allow Mr.

Crawford-El to receive his property. He submitted an

administrative complaint through federal prison channels

demanding that he be allowed to receive his property. The

complaint caused several FCI Marianna officers and officials

to become annoyed with and hostile to Mr. Crawford-El. Mr.

Crawford-El's administrative complaint ultimately succeeded.

He finally was allowed to receive his property in February,

1990, over half a year after he had surrendered it to

Washington State officials. C.A. App. 17-18.

District Court Proceedings

Mr. Crawtord-El, appearing pro se, filed this case in

November, 1989. He named Ms. Britton and the District of

Columbia government as defendants. The district court

I iii eee

10

granted the District of Columbia's motion to dismiss.? App.

17a. The court denied Ms. Britton's first dismissal motion. /d.

On her request for reconsideration, however, the court held

she would be entitled to dismissal on the ground of qualified

immunity unless Mr. Crawford-El amended his complaint to

allege intent and injury more specifically. App. 19a-23a.

Mr. Crawford-El's amended complaint and accom-

panying submissions set forth the facts indicating Ms.

Britton's hostility toward him and said that her withholding

and diversion of his legal papers caused, among other things,

mental distress, the expense of having his mother ship his

property to him, and dismissal of a federal court suit. C.A.

App. 17-18. The district court denied Ms. Britton's motion to

dismiss the amended complaint. App. 24a-25a.

Ms. Britton noted an interlocutory appeal of her claim

of qualified immunity, as allowed by Mitchell v. Forsyth, 472

U.S. 511 (1985). While her interlocutory appeal was

pending, Mr. Crawford-El retained counsel and filed an

amended complaint against the District of Columbia.* After

3 The complaint, which raised only federal constitutional

claims, contained no allegation that District of Columbia

customs, policies, or practices had caused Ms. Britton's

constitutional violations. See Monnell v. Department of

Social Services, 436 U.S. 658 (1978).

* This amended complaint alleged District of Columbia

customs, policies, and practices indicating the District's

liability for Ms. Britton's constitutional violations. This

complaint also presented a procedural due process claim not

raised against Ms. Britton and requested injunctive relief

against future unreasonable deprivations of Mr. Crawford-El's

legal papers.

the decision by the Court of Appeals, and in accordance with

that decision, App. 16a, Mr. Crawford-El filed a motion for

leave to file an amended complaint against Ms. Britton, as

well as the District of Columbia.> The district court granted

this motion May 5, 1992.

Appellate Proceedings

Ms. Britton’s Argument

In her interlocutory appeal, Ms. Britton presented one

argument:

The summary judgment record in this case refutes

appellee's assertion that Ms. Britton intended to

impede his access to the courts by not sending the

boxes that contained his property. She was complying

with her understanding of Bureau of Prisons policy.

Brief for Appellant at 11-12.°

$ The amended complaint includes Mr. Crawford-El's right of

court access claim, but does not assert that Ms. Britton's

seizure, withholding, and diversion of his legal papers caused

dismissal of his litigation. Only mental distress and out-of-

pocket loss (the shipping charges) are claimed. The motion

accompanying this complaint conceded that the right of court

access claim does not meet the legal standards set by the

Court of Appeals and will be valid only if that court's decision

is reversed by this Court.

6 Based solely on this argument, Ms. Britton claimed that Mr.

Crawford-El's complaint failed to meet the D.C. Circuit's

"heightened pleading standard" for claims involving

unconstitutional motive, Siegert v. Gilley, 895 F.2d 797 (D.C.

(footnote continued on next page)

a

12

Ms. Britton did not deny that, under law clearly

established at the time of her actions, the constitutional right

of court access embraced Mr. Crawford-El's right to possess

his legal papers. Nor did she deny that her lengthy seizure,

withholding, and diversion of Mr. Crawford-El's legal papers

posed a foreseeable risk of injury to that right. She made no

claim, moreover, that Mr. Crawford-El's allegations of injury

were insufficient.

Mr. Crawford-El's Arguments

Mr. Crawford-El argued that his pro se submissions

properly pleaded, and proffered evidence to support, two

constitutional claims under clearly established law. First, he

argued the evidence supported a claim that Ms. Britton's

withholding and diversion of all of his property, including the

clothing, etc., was in retaliation for his exercise of First

Amendment rights--namely, his

authorized communication with newspaper reporters,

the content of the resulting newspaper articles,

plaintiff's litigation seeking redress of grievances, and

his complaint to the Mayor and contemplated

litigation against her stemming from the videotaping

of plaintiff and other prisoners on the flight to

Spokane.

Brief for Appeilee at 14. Second, Mr. Crawford-El argued

that "Ms. Britton's withholding and diversion of legal

materials plaintiff needed to pursue judicial redress, even if

not motivated by retaliatory animus, violated plaintiff's

Cir. 1990), affd on other grounds, 111 S: Ct. 1789 (1991),

and that she therefore was entitled to qualified immunity.

a e——————————

sd

13

constitutional right of access to the courts." Brief for

Appellee at 19.

Mr. Crawford-El argued that appellate court prece-

dents had found the right of court access--recognized by this

Court in Bounds v. Smith, 430 U.S. 817 (1977)--to be rooted

in three constitutional provisions: the First Amendment right

to petition for redress, the Due Process Clause, and the

Privileges and Immunities Clause. Brief for Appellee at 15,

n.6, citing Simmons v. Dickhaut, 804 F.2d 182 (Ist Cir.

1986). He argued that the right of court access embraces a

prisoner's right to timely, secure access to legal papers needed

to pursue judicial redress. Brief for Appellee at 20-21, citing

Simmons, supra, and Carter v. Hutto, 781 F.2d 1028, 1032

(4th Cir. 1986). In this regard, Mr. Crawford-El stressed the

contribution of the Due Process Clause to the right of court

access:

Since the violation of plaintiffs right of access to the

courts was perpetrated by depriving him of property _

needed to exercise that right, the due process clause

origins of the right of court access, Simmons, 804

F.2d at 183, are especially noteworthy in this case.

The due process clause contributes to the

constitutional right of court access a substantive due

process right not to be unreasonably deprived of

property needed to seek judicial redress.

Brief for Appellee at 20, n.9.7

7 The Court of Appeals incorrectly assumed that by

"unreasonably deprived" we meant "negligently deprived."

App. 7a What we meant by "unreasonable," however, was

not “reasonably related’ to legitimate penological objectives,"

the standard set by this Court in Turner v. Safley, 482 U.S.

(footnote continued on next page)

14

Mr. Crawford-El argued that Ms. Britton's lengthy

withholding of his legal papers violated his right to timely

access to them because "[s]he deprived plaintiff of his court

papers for a period far longer than the periods established by

court rules for responding to motions and discovery

requests." Brief for Appellee at 21-22. He also argued that

Ms. Britton's subsequent diversion of his legal papers

Outside prison control to a person unauthorized to

receive them--a tortious act under the common law,

Fotos v. Firemen's Ins. Co., 533 A.2d 1264, 1267

(D.C. 1987)--deprived plaintiff of secure, as well as

timely, access to these materials.

Id. at 22.

Mr. Crawford-El argued Ms. Britton was liable for

the unconstitutional withholding and diversion of his legal

78, 87 (1987). Appellee's Petition for Rehearing ("Reh. Pet.")

at 3, n.2. In this regard, Ms. Britton never "put forward" a

legitimate governmental interest justifying her lengthy

withholding and diversion of Mr. Crawford-El's legal

materials, Jurner, 482 U.S. at 89. The Court of Appeals

nonetheless raised, though it did not decide, "if Britton's

delivery of the boxes to Carter was a reasonable means of

securing their safe transfer." App. 7a. The court, however,

cited no evidence raising this question. The record shows Ms.

Britton gave the boxes to Mr. Carter not to secure their safe

transfer to Mr. Crawford-El, but because she erroneously

believed federal Bureau of Prisons policy would not allow Mr.

Crawford-El to receive them. See the discussion, supra, at 6-

7, and Ms. Britton's argument in the Court of Appeals,

quoted, supra, at 11.

15

papers because (1) his right to possess them was clearly

established before August 1989, Simmons v. Dickhaut, 804

F.2d 182 (ist Cir. 1986), Carter v. Hutto, 781 F.2d 1028,

1032 (4th Cir. 1986); Brief for Appellee at 21, and (2) as of

August 18, 1989, she knew his property contained papers he

needed to seek judicial redress. /d. at 7.

He also argued, however, an alternative basis for her

liability--her having ordered the lengthy seizure of all of the

property of a large group of prisoners:

Prison officials in Ms. Britton's position know that

substantial numbers of prisoners have active legal

cases, including postconviction proceedings and

litigation brought pro se, and that wholesale, long-

term deprivation of all the property of a large group of

prisoners is certain to result in deprivations of the

kinds of legal materials at issue in plaintiff's case.

Id. at 19-20, n.8. Given the foreseeability of this consequence,

Mr. Crawford-El argued Ms. Britton would be liable to any

prisoner in the group who was deprived of papers needed for

pending litigation, even if she did not know which prisoners’

property contained such papers.®

8 The Court of Appeals mischaracterized this argument as

saying "officials in Britton's position are aware that many

prisoners have active legal papers, so that there should be no

need to offer specific evidence of awareness of a parcel's

contents." App. 7a. As Mr. Crawford-El's rehearing petition

noted, at 7,n. 7:

This mischaracterization of our argument chops out the

key fact--long-term seizure of all of the property of a

large group of prisoners. It is only when officials engage

(footnote continued on next page)

16

Mr. Crawford-El's brief, at 12 and n.5, said his pro se

complaint alleged Ms. Britton's lengthy withholding and

diversion of his legal papers caused him to incur shipping

expenses and mental distress, and to suffer dismissal of one of

his federal civil actions. None of these injuries was disputed

by Ms. Britton. At oral argument, however, counsel

conceded that Mr. Crawford-El would have difficulty proving

that the deprivation of his legal papers caused the dismissal of

one of his federal actions, because, fortuitously, defense

counsel's letters to the court in that case had led to extension

of litigation deadlines. C.A. App. 105-109. Nonetheless,

counsel maintained that Mr. Crawford-El's mental distress and

out-of-pocket loss were cognizable injuries, and that, even if

this were not true, an award of nominal damages would be

allowed.?

The Decision of the Court of Appeals

The Court of Appeals addressed only Mr. Crawford-

El's claim under the constitutional right of court access.!° The

in such mass seizures, as Ms. Britton did here, that the

resulting deprivation of someone's legal papers, even

absent actual knowledge of parcel contents, becomes so

likely as to be reasonably foreseeable. Reasonable

foreseeability of harm is sufficient to impose liability under

42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 187

(1961). [Emphasis in original. ]

? Mr. Crawford-El pressed this point again in his rehearing

petition, at 9, where he cited the pertinent cases.

'0 The court held the pro se complaint failed to raise the First

Amendment retaliation claim. App. 3a. Mr. Crawford-El was

(footnote continued on next page)

—,——

17

court held that, under law clearly established well before Ms.

Britton's activities in 1989, "Crawford-El had a constitutional

right against any official who [deprived him of] access to

active legal files" in a manner manifesting "deliberate

indifference" to a “foreseeable” "likelihood" of interference

with litigation. App. 9a, 8a. The court held deliberate

indifference to likely interference with litigation to be encom-

passed within intentional interference with {igation. App.

8a.!!

The court then turned to the question of injury. It

surveyed case law defining circumstances in which depri-

vation of a prisoner's legal papers is actionable even in the

absence of actual injury. App. 14a-15a. The court found the

not harmed by this ruling, since the court allowed him to

amend his complaint to raise this claim. App. 16a. The district

court granted leave to amend on May 5, 1992.

\1The court, however, did not address whether deprivation of

all papers pertaining to pending litigation, for half a year,

presents a likelihood of interference with that litigation. Nor

did the court address whether such a lengthy deprivation was

a foreseeable consequence of Ms. Britton's actions. The court

also did not address whether Ms. Britton's asserted reason for

the deprivation--erroneous understanding of Bureau of Prison

policy--reflected ignorance of, and therefore deliberate -

indifference to, Mr. Crawford-El's clearly established consti- - -

tutional right. Instead, the court addressed only whether the

evidence would support a finding that Ms. Britton actually

intended to interfere with Mr. Crawford-El's litigation. App.

10a-13a. The court held it would. App. 13a. The court

therefore rejected Ms. Britton's claim to the contrary, the only

argument she raised.

18

precedents consistently have held that absolute or long-term

deprivations, or those that implicate general policies, require

no showing of actual injury. A showing of injury is required

only for short-lived deprivations that do not implicate general

policies, or for interferences that are merely conditional

restrictions, not absolute deprivations.

The court of appeals, however, rejected the standards

adopted by these cases. Instead, it held that any "isolated epi-

sode of interference with [a prisoner's] right of access to . . .

legal materials"--whether long-term or short-lived, whether an

absolute deprivation or a conditional restriction--requires a

showing of actual injury. The court then held Mr. Crawford-

El was required to show actual injury, but it never discussed

whether the deprivation of his legal papers in fact was "an

isolated episode."!?

'2 The court did not mention that Mr. Crawford-El's papers

had been taken from him as part of a mass seizure of all the

property of all of the D.C. prisoners housed in Washington

State. (This mass seizure, by itself, threatened harm to any

prisoner facing imminent litigation deadlines. It took Ms.

Britton and her colleagues several weeks simply to transport

the prisoners to their final destinations, let alone to deliver

their property thereafter.) The court did not mention that this

seizure reflected an executive officer's standard practice, and

was not a random, unauthorized act of a prison guard, like the

seizure in Hudson v. Palmer, 468 U.S. 517 (1984). The court

also did not mention that Ms. Britton's rationale for diverting

Mr. Crawford-El's papers outside the prison system was

applied by her to a large category of prisoners--all those

bound for federal institutions. Nor did the court mention that

high-level officials including a lawyer, when informed that

Ms. Britton had refused to deliver the legal papers of many

prisoners sent to federal facilities, responded not with

(footnote continued on next page)

The court went even beyond the imposition of an

actual injury requirement. It held that only one type of injury

was sufficient--injury to litigation. "[T]he character of [the]

right," announced the court, "defines the injury requirerrent."

App. 16a. To support this broad pronouncement of consti-

tutional law, however, the court cited no precedent.

REASONS FOR GRANTING THE WRIT

I.

The lower court's holding that the constitutional right of

court access is not violated by lengthy, intentional,

unjustified deprivation of all of a prisoner's legal papers--

unless injury to litigation actually results--conflicts with

the decisions of other circuits and is incompatible with

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

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

held that denial of legal assistance or a law library violates

prisoners’ constitutional right of court access. The prisoners in

that case prevailed though they demonstrated no actual injury

to pending or contemplated litigation.

All Courts of Appeals that have considered the matter,

including the court below, have extended Bounds to protect

prisoners’ access to their legal papers. App. 6a-7a. With the

exception of the court below, moreover, the Courts of

Appeals have held that absolute or long-term deprivation of

immediate corrective action, but with a time-consuming

inquiry into whether federal policy really allowed prisoners to

receive them. The deprivation of Mr. Crawford-El's legal

papers clearly implicated Department of Corrections policy.

20

legal papers, or deprivations implicating institutional policy,

may be challenged without a showing of actual injury. Sowell

v. Vose, 941 F.2d 32, 35 (1st Cir. 1991); Chandler v. Baird,

926 F.2d 1057, 1063 (11th Cir. 1991); Sands v. Lewis 886

F.2d 1166, 1169-71 (9th Cir. 1989); Peterkin v. Jeffes, 855

F.2d 1021, 1039-42 (3d Cir. 1988); Hossman v. Spradlin,

812 F.2d 1019, 1022-¢7th Cir. 1987); Holloway v. Dobbs,

715 F.2d 390, 392 (8th Cir. 1983).

In holding that intentional deprivation of Mr.

Crawford-El's legal papers for half a year, even if unjustified,

was not actionable in the absence of actual injury, the court

below sharply departed from Bounds and the decisions of all

other circuits. This Court should resolve this conflict over the

reach of the constitutional right of court access.

The court below held that, absent injury, Ms. Britton's

intentional conduct, even if unjustified by penological

interests, was not actionable at all, despite the foreseeable risk

of harm it presented. Under the reasoning below, the

constitutional right of court access did not even allow Mr.

Crawford-El to sue for return of his papers. The court held

that availability of relief from Ms. Britton's conduct depended

on a fortuity, whether steps by others happened to avert the

harm her acts made foreseeable. The court insulated the

wrongdoer from judicial command to reverse her course

before injury was inflicted, and placed the burden of averting

harm on others--the prisoner, the other parties to the

prisoner's litigation, and the court hearing that litigation. C.A.

App. 105-109.

The Court should review the decision below and hold

that intentional, unjustified deprivation of a prisoner's legal

papers is actionable--that it warrants equitable relief and, in

the absence of injury, award of nominal damages. Carey v.

Piphus, 435 U.S. 247 (1978).

:

3

§

i

:

?

Ii.

The lower court's refusal to allow recovery of out-of-

pocket loss and mental distress damages for violation of

the constitutional right of court access is incompatible

with Memphis Community School Dist. v. Stachura, 477

U.S. 299 (1986) and Carey v. Piphus, 435 U.S. 247 (1978).

The lower court's holding that "the character" of a

constitutional right “defines the injury requirement," App.

i6a.--and that mental distress damages and out-of-pocket

losses therefore are not recoverable for violation of the right

of court access--cannot be squared with Memphis Community

School Dist. v. Stachura, 477 U.S. 299, 306-311 (1986) (out

of pocket and mental distress damages recoverable for

deprivation of liberty and property without due process, and

for violation of First Amendment right to academic freedom),

or with Carey v. Piphus, 435 U.S. 247 (1978) (mental

distress damages, or nominal damages, recoverable for

procedural due process violation), or with the lower court's

own precedent, Hobson v. Wilson, 737 F.2d 1, 61-62 (D.C.

Cir. 1984) (mental distress damages recoverable for violation

of First Amendment right of politica! association).

The lower court cited no case to support its "character

of the right" restriction on elements of damage, and the court

did not discuss Stachura and Carey. The Court of Appeals,

furthermore, did not explain how its own reasoning

disallowed recovery of out-of-pocket expenses incurred in

replacing or retrieving wrongfully deprived legal papers. The

court acknowledged the Due Process Clause root of the right

of court access. App. 3a, n.1. That clause provides explicit

protection from unreasonable deprivation of property. If the

"character of the right" is the controlling criterion, are not

replacement or retrieval costs precisely the kind of damage

22

most likely to be expected when property is wrongly

deprived?!3

The lower court's broad, unprecedented pronounce-

ment that the character of a constitutional right strictly limits

the damage elements that can be recovered--and precludes

recovery for some clearly foreseeable losses and injuries--

should be reviewed by this Court.

CONCLUSION -

For these reasons, Mr. Crawford-El's petition should

be granted.

Respectfully submitted,

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Ave., N.W.

Suite 225

Washington, D.C. 20009

202/328-2244

Counsel of Record for Petitioner

May 14, 1992

'3 Nor did the court explain why its principle did not support

recovery of mental distress damages in cases involving

wrongful seizures of legal papers. Is not deprivation of

property needed to pursue a constitutional liberty a wrong

which would be expected to cause mental distress?

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 13, 1991, Decided December 27, 1991

No. 91-7023

LEONARD ROLLON CRAWFORD-EL,

Appellee

V.

PATRICIA BRITTON AND DISTRICT OF COLUMBIA

DEPARTMENT OF CORRECTIONS,

Appellants

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 89-03076)

Edward E. Schwab, Assistant Corporation Counsel,

Office of the Corporation Counsel, with whom John Payton,

Corporation Counsel, and Charles Reischel, Deputy

Corporation Counsel, Office of the Corporation Counsel,

were on the brief, for appellants. Lutz Alexander Prager,

Attorney, Office of the Corporation Counsel, also entered an

appearance for appellants.

Daniel M. Schember for appellee.

2a

Before: BUCKLEY and WILLIAMS, Circuit Judges,

and Aian D. Lourie,” Circuit Judge, U.S. Court of Appeals

for the Federal Circuit.

Opinion for the Court filed by Circuit Judge Williams.

WILLIAMS, Circuit Judge: Because of

overcrowding in the District of Columbia prison system,

plaintiff Leonard Rollon Crawford-El was shuffled about

between its Lorton, Virginia facility and several other places

of custody. He was first transferred in December 1988 to the

Spokane County Jail in the state of Washington, then in the

late summer and early fall of 1989 back to Lorton, and

ultimately to a federal prison in Marianna, Florida, where he

arrived in September 1989. Defendant Patricia Britton, a

District of Columbia corrections officer, had charge of

arranging his journeys. At the time, he owned three boxes

containing clothes and papers relating to several pending

lawsuits. At some point (by his account in August or

September 1989, by hers in October 1989), Britton delivered

the boxes to Crawford-El's brother-in-law, Jesse Carter,

rather than simply shipping them to him at the next

destination. Some time later Crawford-El's mother secured

the boxes and shipped them to him in Florida, where they

reached him in February 1990.

* Sitting by designation pursuant to 28 U.S.C. § 291(a).

3a

Crawford-El sued Britton for damages under 42

U.S.C. § 1983, claiming that her misdelivery of his legal

papers to Carter was an intentional interference with his

constitutional right of access to the courts. In support he

alleged (among other things) various prior conversations

between himself and Britton that suggested both her

awareness that the boxes contained active legal files and her

wish to do him harm. (We review the details below.)

In his brief here Crawford-El also argues that Britton

retaliated against him for exercising his First Amendment

rights. See Appellee's Brief at 14-19. The complaint makes -

no reference to this First Amendment claim, however, and the

district court quite reasonably did not understand it as raising

such a claim, see Crawford-El v. Britton, No. 89-3076, Order

at 1, Joint Appendix ("J.A.") at 8! so we do not consider it

here. See District of Columbia v. Air Florida, Inc., 750 F.2d

1077, 1078 (D.C. Cir. 1984).

'The district court did read the complaint as claiming a

violation of Crawford-El's due process rights under the Fifth

Amendment. /d. This appears to be substantively

indistinguishable from the access to courts claim, which

courts have traced to several constitutional provisions,

including the First Amendment, the due process ciause, and

the privileges and immunities clause. See, e.g., Simmons v.

Dickhaut, 804 F.2d 182, 183 (1st Cir. 1986); Ryland v.

Shapiro, 708 F.2d 967, 971-72 (Sth Cir. 1983). The parties

have not addressed any arguments here to a distinct due

process claim, and we do not consider it.

Byyiy

da

Britton moved for dismissal of the complaint and for

summary judgment. She asserted a qualified immunity

defense under Harlow v. Fitzgerald, 457 U.S. 800 (1982),

arguing that the plaintiff's claims do not make out a violation

of any constitutional right "clearly established" at the time of

her acts, id at 818. She also argued that the plaintiff had

failed to satisfy the "heightened pleading standard" that this

circuit applies to damage actions against government officials.

The district court denied the motion, Crawford-El v. Britton,

No. 89-3076, Order (D.D.C. Dec. 21, 1990), and she appeals.

We hold that the complaint has not satisfied our

heightened pleading standard, but remand the case to the

district court for repleading and reconsideration in light of our

opinion.

I.

Our jurisdiction is limited to whether at this stage

Crawford-El's claim withstands the qualified immunity

defense and satisfies the heightened pleading standard. A

district court's rejection of a qualified immunity defense is

immediately appealable under the “collateral order" exception

to 28 U.S.C. § 1291's requirement of finality, to the extent it

turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511,

524-30 (1985). Otherwise trial court error could defeat much

of the defense's purpose -- to protect officials not only from

liability but also from undue burdens of litigation. To

determine the relevant facts, we look not only to the pleadings

but to the entire record on appeal, viewed, as under Fed. R.

Civ. P. 56, in the light most favorable to the party opposing

summary judgment (except for the heightened pleading

requirement discussed below). See, e. g., Elliott v. Thomas,

937 F.2d 338, 341-42 (7th Cir. 1991); Unwin v. Campbell,

863 F.2d 124, 130-33 (1st Cir. 1988).

Sa

We do not apply the summary judgment model pure

and simple, however, as the plaintiff has not yet secured

discovery. Harlow, 457 U.S. at 818 (discovery should not be

allowed until qualified immunity issue is resolved). Our

heightened pleading requirement insists that, before discovery,

plaintiffs suing government officers for damages set forth

"nonconclusory allegations’ that are ‘sufficiently precise to put

defendants on notice of the nature of the claim and enable

them to prepare a response and, where appropriate, a

summary judgment motion on qualified immunity grounds.”

Andrews v. Wilkins, 934 F.2d 1267, 1269-70 (D.C. Cir. 1991)

(quoting Hobson v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984)).

Because application of the heightened pleading standard

precedes discovery, the assumptions of ordinary summary

judgment are (as we shall see) not fully applicable.

We note that some of Britton's arguments on appeal

take the form of a simple denial -- an "I didn't do it" defense.

Immediate review of the district court's treatment of those

issues is beyond the scope of Mitchell’s exception, which

exists to supply early review of the /aw "clearly established" at

the relevant time. See, e.g., Elliott v. Thomas, 937 F.2d at

341-42; Kaminsky v. Rosenblum, 929 F.2d 922, 925-26 (2d

Cir. 1991); Ryan v. Burlington County, 860 F.2d 1199, 1203

n.8 (3d Cir. 1988); Lion Boulos v. Wilson, 834 F.2d 504, 509

(Sth Cir. 1987); Velasquez v. Senko, 813 F.2d 1509, 1511

(9th Cir. 1987).

II.

To determine whether Britton's qualified immunity

defense prevails, we first consider what state of mind must

have accompanied her misdelivery of Crawford-El's legal

papers to render that action a constitutional tort (or, more

precisely, what state of mind would a reasonable officer at the

time of the alleged misdelivery have thought rendered it

6a

unconstitutional).2 Although a purpose of the reasonable-

officer standard is to enable a court to decide on qualified

immunity without intrusive discovery, Harlow, 457 U.S. at

815-19, we have understood Harlow to allow inquiry into

motive where a bad one could transform an official's

otherwise reasonable conduct into a constitutional tort. See

Siegert v. Gilley, 895 F.2d 797, 800-02 (D.C. Cir. 1990),

aff'd on other grounds, 111 S. Ct. 1789 (1991); Whitacre v.

Davey, 890 F.2d 1168, 1171 (D.C. Cir. 1989); Martin v. D.C.

Metropolitan Police Department, 812 F.2d 1425, 1431 (D.C.

Cir. 1987); Halperin v. Kissinger, 807 F.2d 180, 185-87

(D.C. Cir. 1986); Hobson v. Wilson, 737 F.2d at 29-31.

compare Penthouse International, Lid. v. Meese, 939 F.2d

1011, 1017 (D.C. Cir. 1991) (no state of mind could make the

specified conduct unconstitutional).

Well before defendant's activities in 1989 the Supreme

Court decided that prisoners have a general right of access to

law libraries or legal assistance. See Bounds v. Smith, 430

U.S. 817, 821-25 (1977); Wolff v. McDonnell, 418 U.S. 539,

579 (1974). But it doesn't follow that any interruption in

Crawford-El's access to his papers was unconstitutional.

Prison officials have considerable discretion to implement

policies for the administration of correctional facilities and are

free to formulate rules (including regulation of inmates'

property) that impinge on fundamental rights so long as they

are " 'reasonably related’ to legitimate penological objectives".

Turner v. Safley, 482 U.S. 78, 87 (1987). At a minimum, if

2 Crawford-El associates the misdelivery with his transfer

from Lorton to another prison in Petersburg, Virginia on the

way to Florida in August or September 1989, whereas Britton

states she delivered the boxes to Carter on October 5, 1989.

See Affidavit of Patricia Britton at 3 (Mar. 26, 1990), J.A. at

55. We are aware of no cases between August and October

1989 that would change our analysis.

eel OR ee, Bed IE 8 ON Lk es oe at

Ta

Britton's delivery of the boxes to Carter was a reasonable

means of securing their safe transfer, it would not violate his

Bounds right.*

Plaintiff argues that any "unreasonable" (by which he

appears to mean “negligent") withholding or misdelivery of

property would violate the Bounds right if the parcel contains

active legal files. He suggests that prison officials in Britton's

position are aware that many prisoners have active legal

papers, so that there should be no need to offer specific

evidence of awareness of a parcel's contents. Appellee's Brief

at 19-20 n.8.

Though Britton's position is more obscure, she

implicitly and correctly recognizes that it was clear by 1989

that an officer who interfered with the transmission of an

inmate's legal papers for the purpose of thwarting the inmate's

litigation violated his constitutional right of access to the

courts. See, e.g., Simmons v. Dickhaut, 804 F.2d 182, 183

(1st Cir. 1986); Wright v. Newsome, 795 F.2d 964, 968 (11th

Cir. 1986); Carter v. Hutto, 781 F.2d 1028, 1031-32 (4th Cir.

1986); Tyler v. “Ron” Deputy Sheriff, 574 F.2d 427, 429 (8th

Cir. 1978); cf. Jackson v. Procunier, 789 F.2d 307, 310-11

(Sth Cir. 1986) (allegation that prison officials deliberately

held up inmate's mailing of in forma pauperis petition stated

claim for constitutional violation); Washington v. James, 782

F.2d 1134, 1138-39 (2d Cir. 1986) (interference with legal

3 At worst, the act might constitute a common law

conversion, Fotos v. Firemen’'s Ins. Co. 533 A.2d 1264, 1267

(D.C. 1987), but that is a separate question that has no direct

bearing on whether the act violated Crawford-El's Bounds

right. We reject hs contention to the contrary. See Appellees

Brief at 22.

8a

mail states claim for violation of right of access).4 Under this

specific intent standard, Britton's act would constitute a

violation of Crawford-El's Bounds right only if she knew his

property contained legal papers relevant to pending litigation

and she diverted the property with the purpose of interfering

with his litigation, or at least with deliberate indifference to

such interference. (Hereafter we use “intent to interfere" as

encompassing deliberate indifference.)

It cannot, however, be said that anything like

Crawford-El's proposed negligence standard was clearly

established in 1989 (or now, for that matter). Perhaps the

broadest ruling is Jackson v. Procunier, which held a Bounds

claim would be shown if "mail officers deliberately held up

[the plaintiff's] mail when they should reasonably have known

that the delay would deprive him of his right of access to the

courts". 789 F.2d at 311 (emphasis added). The delayed

envelope stated that it contained legal materials that had to be

in court by a specific date one week later, id. at 308, and the

resulting delay cost the prisoner dismissal of his appeal. Thus,

the court was presumably holding that it was enough to allege

knowing delay of legal papers, with awareness of some (at

least nontrivial) likelihood that the delay would defeat the

inmate's claim. The other cases appear similarly to require

either an intent to thwart the prisoner's access to courts, or at

a minimum deliberate or reckless indifference to a foreseeable

disruptive effect. See, e.g., Simmons v. Dickhaut 804 F.2d at

* Our circuit has not spoken to this issue. However, the

unanimity among those circuits that have done so, together

with the fact that "[i]t follows logically [from Bounds] that

the allegation of intentional violation of the right of access to

the courts states a cause of action under § 1983", Simmons v.

Dickhaut, 804 F.2d at 183, suggests that a reasonable official

would know that intentional deprivation of the Bounds right

violates the Constitution.

9a

184 (inmate claimed prison officials withheld legal material

from property returned to him, although he three times

requested and identified it); Carter v. Hutto, 781 F.2d at

1031-32 (inmate claimed that prison officials deliberately

seized and destroyed handwritten notes of his trial, the basis

of his habeas claim); Patterson v. Mintzes, 717 F.2d 284, 288-

89 (6th Cir. 1983) (inmate denied access to his transcripts and

legal papers necessary for court appearance despite several

specific requests identifying his critical dependence on the

documents). Thus, while the cases "clearly establish" that

Crawford-El had a constitutional mght against any official

who interfered with his access to active legal files with intent

to impair that access, they do not establish the broader right

that he claims.

Quite apart from the issue of qualified immunity, we

doubt if an act such as Britton's could violate the Bounds

right unless done with an intent to interfere with litigation (or,

to repeat, with deliberate indifference to such interference). If

it could, a prisoner could easily transform almost any

negligent delay in the transfer of his property (which would

not otherwise violate the Constitution, see Daniels v.

Williams, 474 U.S. 327, 336 (1986) into a constitutional tort

if the property contained active litigation papers. Defendant's

theory, that officials are generally aware that prisoners are

frequently engaged in litigation and should be liable for any

negligent delay, could extend (for example) to any mail carrier

handling prison mail and negligently delaying its delivery.

Accordingly, to withstand Britton's motion to dismiss,

Crawford-El must have made specific nonconclusory

allegations showing that Britton knew his property contained

legal materials relating to pending cases and that she diverted

his property with the intention of interfering with his

litigation.

C—O

10a

On the first point, Crawford-El claims to have

informed Britton that his boxes contained legal papers:

On Friday August 18, 1989, I spoke to defendant

Patricia Britton at the Western Missouri Correctional

Center [while en route from Washington State back to

Lorton]. D.C. offenders Danny Phillips and James

Neal and I were talking to Britton and each informed

her-thatOur legal material pertaining to current cases

was in our property and was necessary in order for us

to seek redress from the courts.

Affidavit of Leonard Crawford-El at 1 (May 3, 1990), J.A. at

73; see also Complaint at 2, J.A. at 28.

Crawford-El also alleges specific facts suggesting an

intention to interfere with his pursuit of his legal claims.

First, he has provided evidence of Britton's general hostility

to him. He alleges* that after he was quoted by reporters in

an April 20, 1986 Washington Post article criticizing

conditions at Lorton, Britton rebuked him for cooperating

with the reporters and “told plaintiff that so long as he was

incarcerated she was going to do everything she had to make

it as hard for him as possible as a result of his having met and

spoke [sic] with the reporters and for allegedly embarassing

[sic] her before her coworkers thru the article." Amended

Complaint at 2 (Sept. 6, 1990), J.A. at 16.

Crawford-El also states that after his transfer to

Spokane he was quoted several times in a December 17, 1989

[sic; presumably /988] Washington Post article about the

> The facts are described below according to Crawford-El's

allegations and offers of proof; for the purposes of this appeal

we do not have jurisdiction to consider Britton's denials of

certain allegations, for the reasons set forth in Part I.

transfer, and thereafter "was locked down and officials there

informed him that Defendant Britton had told them Plaintiff

was a ‘Troublemaker'." /d. This adds only a very little; we

suspect that even prison officials free of hostility toward

Crawford-El might regard "troublemaker" as an apt moniker.

Crawford-El's final claim of general hostility is that he

learned (from an unidentified source) that Britton, after

conveying his property to Carter, had told Carter that

Crawford-El “should be happy she did not throw it in the

trash." Complaint at 3, J.A. at 29. This contention is

undermined by Crawford-El's acknowledgment of Carter's

statement that Britton, when asking him to pick up the

property, had told him she was afraid it might otherwise be

lost.. /d.

Two of these assertions appear to be pure hearsay --

Crawford-El's statements that "officials" at Spokane told him

that Britton told them Crawford-El was a "troublemaker" and

that someone (Carter?) told him that Britton had said

Crawford-El was lucky she did not throw his property in the

trash. Normally such hearsay would not be enough to raise

an issue of fact for summary judgment purposes. See Fed. R.

Civ. P. 56(e) ("Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated

therein."); see also 1OA Charles Alan Wright, Arthur R. Miller

& Mary Kay Kane, Federal Practice and Procedure § 2738, at

470-74 (2d ed. 1983). Britton may have waived the

objection, see id at 507-09; Jn re Teltronics Services, Inc.,

762 F.2d 185, 1192 (2d Cir. 1985), but the more important

point is that there has been no opportunity for discovery.

Accordingly, the heightened pleading requirement demands

only that plaintiff "relate[e] the pertinent information that is

already in his possession." Hunter v. District of Columbia,

12a

943 F.2d 69, 76 (D.C. Cir. 1991). Inadmissible hearsay

reports of the defendant's specific statements indicating

malicious intent can satisfy that standard. Counsel involved in

the drafting of such reports will doubtless be alert to the

possible Rule! 1 hazards.

Second, Crawford-E] bolsters the impact of Britton's

statements with a claim of disparate treatment: He alleges

that he and other prisoners who had complained about being

videotaped during the transfer were not sent their property,

whereas others being transferred were sent theirs. See

Affidavit of Leonard Crawford-El at 4-5, J.A. at 76-77

(asserting that D.C. inmates who filed notices of intent to sue

over the videotaping and/or were named as plaintiffs in the

lawsuit over the videotaping, “experienced the same

intentional deprivations as plaintiff at the hands of Britton

who is also a defendant" in that case, whereas "D.C. offender

John McNeil and others [being transferred from Washington

State] property was [sic] in R + D in Lorton and given to

them"); see also Attachments to Appellee's Brief at 1-14, J.A.

at 82-87 (copy of complaint in Alton Best v. District of

Columbia, lawsuit over videotaping); Attachments to

Appellee's Brief at 38-45 (notices of intent to sue by

Crawford-El, James Neal, Danny Phillips, and Kenneth

Ward).

Third, Crawford-El states that prison authorities

would not permit him to receive property mailed outside

prison channels, even by a family member. Complaint at 4,

J.A. at 30. Thus, when his mother finally mailed him his

property, he was initially denied access to the materials and

secured them only by filing an administrative complaint with

the Marianna, Florida warden. Amended Complaint at 3, J.A.

at 17. If Britton was aware of the practice, this would supply

a reason why she could have believed that delivery to Carter

might thwart Crawford-E!'s litigation efforts.

TET ee

l3a

Taking Crawford-El's allegations and supporting

evidence of unconstitutional motive as a whole, we find them

"specific and concrete enough to enable [Britton] to prepare a

response, and . . . a motion for summary judgment based on

qualified immunity.". Whitacre v. Davey, 890 F.2d at 1171.

The allegations in Martin v. D.C. Metropolitan Police

Department, which we rejected, 812 F.2d at 1435, were by

comparison quite vague. The plaintiff claimed that he had

been arrested for burglary in retaliation for a civil lawsuit that

he pressed against certain officers who had beaten him with

nightsticks in an episode captured on videotape and broadcast

on the local news. His arrest was by other police officers, and

against them plaintiff could only claim that they had reviewed

the videotape of the beating; that he was the only person

identified and prosecuted as a result; that defendants worked

closely with the prosecutor on the case; and that an unusually

large number of officers arrested him. Jd. Here Crawford-E]

has identified specific statements by Britton to him and others

showing awareness that his boxes contained litigation papers

and that she was hostile; and he has identified specific persons

also involved in documented legal conflict with Britton and

(according to him) subjected to adverse treatment of their

property, in contrast with others. For summary judgment

purposes Britton should be able to meet these assertions with

specific affidavits.

Although Crawford-El has adequately specified

evidence of Britton's intent, he has offered none showing that

Britton's actions actually deprived him of his right of access to

courts. While our past decisions have mainly focused on the

need for specifics bearing on the intent element of a

constitutional damage action, Hunter v. District of Columbia

makes clear that the policy behind the qualified immunity

defense -- concern over “the social cost of distracting

government officials with litigation", 943 F.2d at 75 --

l4a

requires that the complaint as a whole satisfy the heightened

pleading standard.

Some of Crawford-El's damage allegations relate to

impacts on his litigation -- assertions that the delay "made it

impossible for him to proceed in an organized manner,"

Amended Complaint at 4, J.A. at 18, that he was “prevented

from assisting his attorneys . . . in that he was not able to refer

to his records and notes", id., that his "filing of several small

claims in D.C. was delayed unnecessarily", id., and that the

defendant's acts “were the proximal [sic] cause of the

dismissal of one pro se case [with a specific title]". Except

for the one reference to dismissal of a case, unsupported by

any detail, none of these shows actual deprivation of access to

the courts.

We agree with those circuits holding that where a

plaintiff seeks relief for an isolated episode of interference

with his right of access to a law library, legal materials, or

legal assistance, he must allege an actual injury to his

litigation. Thus, in Chandler v. Baird, 926 F.2d 1057, 1063

(11th Cir. 1991), the court held that actual prejudice was

necessary where the “alleged deprivations are of a minor and

short-lived nature and do not implicate general policies." See

also Sowell v. Vose, 941 F.2d 32, 35 (1st Cir. 1991) (drawing

a similar line, and noting that the only injury from certain

delays was plaintiffs need to seek extensions of filing

deadlines); Sands v. Lewis 886 F.2d 1166, 1169-71 (9th Cir.

1989) (drawing distinction between an "absolute" deprivation

of access to legal materials and a "conditional restriction", for

which actual injury must be shown); Peterkin v. Jeffes, 855

F.2d 1021, 1039-42 (3d Cir. 1988); Hossman v. Spradlin,

812 F.2d 1019, 1022 (7th Cir. 1987); Holloway v. Dobbs,

715 F.2d 390, 392 (8th Cir. 1983); cf. Washington v. James,

782 F.2d at 1140-41 (Cardamone, J., dissenting) (rejecting

majority's view that complaint alleged regular interference

7s a eee Qn

lSa

with plaintiffs legal correspondence, dissenter would have

dismissed the claim for want of "actual denial of access to

federal courts") (emphasis in original); Mann v. Smith, 796

F.2d 79, 83-84 & n.5 (Sth Cir. 1986) (requiring actual injury

where alleged violation took form of inadequate " 'checkout'

system for law books"). This requirement flows from the

general principle that some showing of injury is a prerequisite

to a constitutional tort action. See, e.g., Butz v. Economou,

438 U.S. 478, 504 (1978) ("the decision in Bivens [the federal

analog of § 1983] established that a citizen suffering a

compensable injury to a constitutionally protected interest

could invoke the general federal-question jurisdiction of the

district courts to obtain an award of monetary damages

against the responsible federal official") (emphasis added);

Ingraham v. Wright, 430 U.S. 651, 674 (1977) ("There is, of

course, a de minimis level of imposition with which the

Constitution is not concerned."); Bart v. Telford, 677 F.2d

622, 625 (7th Cir. 1982) ("even in the field of constitutional

torts de minimis non curat lex. ... A tort to be actionable

requires injury.").

The only concrete (legal) injury cited by Crawford-El

is the dismissal of one pro se action filed in the federal district

court in Maryland. See Complaint at 4, J.A. at 18;

Opposition to Defendant's Motion for Reconsideration at 6

(May 21, 1990), J.A. at 99. But that action was dismissed on

May 4, 1990, well after Crawford-El recovered his legal

materials in early February 1990; indeed, the district judge

had extended the deadlines for discovery and summary

judgment motions to March 27, 1990, and April 26, 1990,

respectively. See J.A. at 109-10. Thus, like the plaintiff in

Sowell v. Vose who secured extensions to accommodate

access delays wrongly inflicted upon him, Crawford-El has

failed to link his deprivation to any adverse litigation effect.

16a

Crawford-El has also alleged losses completely

peripheral to his litigation -- the cost of underwear and shoes

during the eight months he was denied access to the clothes in

his property; the cost of mailing the boxes from the District to

the Florida facility; and emotional distress. See Amended

Complaint at 4, J.A. at 18. These do not help show a

violation of the Bounds right; the character of that right

defines the injury requirement. If there is no denial of access

to the courts, the presence of legal records in the diverted

_ boxes cannot turn a garden-variety property deprivation into a

Bounds claim.

II.

Although we hold that Crawford-El's complaint does

not satisfy our heightened pleading standard, we remand the

case to the district court for repleading. On remand

Crawford-El should be permitted to add, if he can,

nonconclusory allegations that would show the actual injury

necessary to support his Bounds claim. Since the proceedings

in district court, our Hunter decision has made clear the scope

of the heightened pleading requirement; as plaintiff prevailed

in district court and his pleadings were pro se, the case for a

remand to comply with those requirements is more

compelling than in Hunter itself. Permission to file additional

amendments to the complaint, such as to raise plaintiffs new

First Amendment theory, lies in the sound discretion of the

district court. See Foman v. Davis, 371 U.S. 178, 182

(1962). We note, however, that even First Amendment

claims appear to be subject to a de minimis rule. See Bart v.

Telford, 677 F.2d at 625.

Reversed and remanded.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Filed May 10, 1990

Clerk, U.S. District Court

District of Columbia

LEONARD ROLLON CRAWFORD-EL _)

)

Plaintiff, )

)

v. ) Civil Action

) No.89-3076

) (RCL)

PATRICIA BRITTON, )

)

)

Defendant. )

RDER

1. Defendant Patricia Britton's motion to dismiss is

DENIED.

2. The District of Columbia is substituted for the

District of Columbia Department of Corrections as defendant.

Defendant District of Columbia's motion to dismiss is

GRANTED.

3. Defendant Britton shall respond to plaintiffs

outstanding discovery requests by May 17, 1990.

4. The District of Columbia shall treat plaintiff's

outstanding discovery requests as having been served on it as

18a

a non-party and shall respond to the requests by May 17,

1990.

S. Defendant Britton shall file any written discovery

requests by May 24, 1990.

6. A further status conference shall be held May 25,

1990 at 9:30 a.m.

SO ORDERED.

Royce C. Lamberth

United States District Judge

DATE: May 10, 1990

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Filed August 31, 1990

Clerk, U.S. District Court

District of Columbia

LEONARD ROLLON CRAWFORD-EL

)

)

Plaintiff, )

)

V. ) Civil Action

) No.89-3076

) (RCL)

PATRICIA BRITTON, )

)

)

Defendant. )

ORDER

This case comes before the court on defendant

Patricia Britton's motion for reconsideration of the court's

order of May 10, 1990, denying defendant Britton's motion to

dismiss, and the opposition thereto.'| As grounds for her

motion, Britton cites the case of Siegert v. Gilley 895 F.2d

797 (D.C. Cir. 1990). Because the court did not consider

Siegert when it ruled on defendant's motion to dismiss, it will

grant the motion to reconsider.

' The District of Columbia, which is no longer a party to this

action having been dismissed by the court on May 10, 1990.

unsuccessfully attempts to join in defendant Britton’s motion

Seliienemeemernens:

20a

Plaintiff is a prisoner who claims that defendant -

deprived him of his legal materials with the intent of

interfering with his access to the courts in violation of the

Sixth Amendment and in violation of his due process rights

under the Fifth Amendment.

Plaintiff was transferred from the Maximum Security

Facility at Lorton, Virginia to the Washington State inlate

1988. After being transferred within facilities within

Washington State, plaintiff was informed on July 28, 1989

that he would be returning to Lorton. Instead of being

shipped back to Lorton, however, plaintiff was sent to the

Western Missouri Correctional Center in Cameron, Missouri

on August 9, 1989. Plaintiffs property, including his legal

papers from on-going court cases, was not sent to Missouri

because plaintiff was only expected to be there a week. When

he arrived at Lorton on August 19, 1989, his propety did not

arrive despite plaintiffs numerous inquiries to defendant

Britton and to the Director of the D.C. Department of

Corrections before his journey, and after his arrival. On

September 7, 1989, plaintiff was transferred from Lorton to

the Federal Bureau of Prisons at Petersburg, Virginia, without

first receiving his legal material. While at Petersburg, plaintiff

learned that Ms. Britton had contacted his brother-in-law

without plaintiffs permission, and arranged for plaintiff's

brother-in-law to receive plaintiffs property. Plaintiff finally

received his material in February 1990, eight months after

being separated from it by defendants.

The Court of Appeals for this Circuit explored the

doctrine of qualified immunity and how it applies to cases

which necessarily call into question the subjective intent of the

government official.

[W]hen the governing precedent identifies the

defendant's intent (unrelated to knowledge of the law)

2la

as an essential element of the plaintiff's constitutional

claim, the plaintiff must be afforded an Opportunity to

Overcome an asserted immunity with an offer of the

defendant's alleged unconstitutional purpose.

Id. at 801, citing inv. DC. tropolitan Police

Department, 812 F.2d 1425, 1433 (D.C. Cir. 1987). The

court went on to examine the standard of pleading required of

plaintiffs in cases involving such allegations. After examining

the case law and the general purposes of qualified immunity

doctrine, the Court of Appeals concluded that "in order to

obtain even limited discovery, such intent must be pleaded

with specific, discernible facts or offers of proof that

constitute direct as opposed to merely circumstantial evidence

of the intent." Siegert 895 F.2d at 802.

Plaintiff, who is representing himself pro se, argues

that Ms. Britton had knowledge that the deprivation of his

legal papers violated his constitutional rights because plaintiff

had informed her so. Therefore he concludes that her failure

to insure that his papers were immediately forwarded to him

constituted a willful and_ intentional deprivation of

constitutional rights. This sort of proof seems to border on

circumstantial, the reliance upon which Siegert forbids.

During the course of hearings on the motion to dismiss and

the motion to reconsider, however, plaintiff has related to the

court direct evidence of defendant Britton's intent. Plaintiff

described an incident which took place in 1986 in which

defendant Britton told plaintiff that he was a "troublemaker"

because he had complained to Washington Post reporters

about conditions at Lorton. Plaintiff claims that Britton

promised to make his incarceration as hard as possible as a

result of his having talked with the reporters. Plaintiff has

submitted certified copies of the newspaper articles in which

he was quoted. Plaintiff has referred to the threat of Ms.

Britton in his opposition to the motion for reconsideration,

22a

but there is no description or reference to the incident in

either the complaint or in plaintiff's affidavit attached to the

complaint.

Because the plaintiff is a pro_se prisoner who is

without the advantages of legal training that might assist him

in making out a more complete complaint, this court will

allow plaintiff an opportunity to amend his complaint to add

reference to the incident which took place in 1986 which

supports plaintiffs claim that Ms. Britton's intent was to

deprive him of his constitutional rights, and that the

mishandling of his legal papers was not bureaucratic error.

During the course of hearings on the motion to

dismiss and the motion to reconsider, plaintiff has also made

reference to unfavorable decisions made in his other cases

pending in other courts as a result of his inability to respond

without his legal materials. In order to clarify this for the

court and for the defendant, the court asks that plaintiff

specify in his amended complaint exactly what harm has

befallen him as a result of the deprivation of his legal

documents, as well as any other harm that occurred because

of the handling of his property.

Upon consideration of the above analysis, and for the

reasons stated in open court on May 10, 1990, plaintiff shall

be allowed to amend his complaint to comply with Siegert v.

Gilley 895 F.2d 797 (D.C. Cir. 1990), and to allege his direct

evidence of defendant Britton's unconstitutional intent.

Therefore, it hereby is ORDERED that:

1. Defendant Britton's motion for reconsideration is

GRANTED.

2. Plaintiff shall have 20 days in which to amend his

complaint and allege direct evidence of defendant Britton's

23a

unconstitutional intent or the court will dismiss this action

based on defendant Britton's qualified immunity.

SO ORDERED.

Royce C. Lamberth

United States District Judge

Aug. 31, 1990

24a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Filed December 21, 1990

Clerk, U.S. District Court

District of Columbia

LEONARD ROLLON CRAWFORD-EL _)

)

Plaintiff, )

)

V. ) Civil Action

) No.89-3076

) (RCL)

PATRICIA BRITTON, )

)

)

Defendant. )

RDER

This matter came before the court for a status

conference on November 28, 1990.

Plaintiff, who is currently proceeding pro se, was

present, as was Assistant Corporation Counsel Kenneth

Marty, appearing on behalf of defendant Patricia Britton.

Plaintiff complied with this court's order of August 31,

-1990, and filed an amended complaint with allegations of

direct evidence of defendant Britton's unconstitutional intent,

and with specifications of how plaintiff has been harmed as a

result of defendant's actions.

25a

Defendant Britton filed an answer to the amended

complaint on November 20, 1990.

At the status conference, defendant's counsel indicated

that defendant continues to urge the court to dismiss the

amended complaint, for the same reasons Originally argued,

i.e., that the complaint as amended still fails to state a claim

upon which relief may be granted or over which this court

has jurisdiction, and that defendant is entitled to official

immunity. The court deemed these comments to be an oral

motion to dismiss, on the same grounds as Originally

presented by defendant. Defendant's motion to dismiss is

hereby DENIED, for the reasons set forth in the court's order

of August 31, 1990, and herein.

Plaintiff is present in this jurisdiction on a writ of

habeas corpus ad testificandum issued on March 15, 1990.

He shall remain here and shall be held at the D.C. Jail until

disposition of this case, or further order of the court.

Plaintiff complained that he has been denied access to

the law library at the D.C. Jail. Assistant Corporation

Counsel Marty shall file a report with the court no later than

January 2, 1990, regarding plaintiff's use of the law library. In

his report, Mr. Marty shall also report regarding whether

plaintiff has now been allowed to review his D.C. Department

of Corrections' file.

SO ORDERED.

Royce C. Lamberth

United States District Judge

Date: Dec.21, 1990

26a

UNITED STATES COURT OF APPEALS

For the District of Columbia Circuit

NO. 91-7023 September Term, 1991

CA 89-03076

Leonard Rollon Crawford-El U.S. Court of Appeals

For the District of

Columbia Circuit

V. FILED Feb. 14, 1992

Patricia Britton

Appellant

BEFORE: Buckley, Williams and Lourie,” Circuit Judges

ORDER

Upon consideration of appellee's petition for rehearing

filed January 27, 1992, it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY:

Robert A. Bonner

Deputy Clerk

* Of the United States Court of Appeals for the Federal

Circuit, sitting by designation pursuant to 28 U.S.C. §291(a).