Cookish et a l . v . Rouleau et a l . CV-02-526-B 03/11/04
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Dennis R. Cookish & Michael Donovan
v. Civil N o . 02-526-B Opinion N o . 2004 DNH 045 Angela Rouleau, et. a l .
MEMORANDUM AND ORDER
Plaintiffs Dennis R. Cookish and Michael Donovan, both
incarcerated inmates at the Northern New Hampshire Correctional
Facility (“NCF”) in Berlin, N H , bring a claim for equitable
relief and damages pursuant to 42 U.S.C. § 1983 against
defendants Angela Rouleau, Bruce Cattell, Philip Stanley, and
John Vinson, in their individual and official capacities.1
Plaintiffs claim that the defendants have denied them meaningful
access to the courts. In particular, they challenge the prison
library’s photocopy policy, the way in which it hires and uses
inmate law clerks, the adequacy of the law library’s reference
1 Angela Rouleau has recently married and changed her name. I refer to her by her maiden name throughout this order. Rouleau is the prison librarian, Cattell is the warden, Stanley is the commissioner, and Vinson is the prison’s in-house counsel. materials and the way in which law library time is allocated to
inmates. The parties have filed competing motions for summary
judgment. I deny plaintiffs’ motion and grant defendants’
motion.
I. FACTS2
Plaintiffs assert the policies and practices of the prison
impermissibly deny them meaningful access to the courts. They
separate the policies and practices into four categories: (1) the
prison’s photocopying policy; (2) its hiring and use of inmate
law clerks; (3) the adequacy of the law library; and (4) the
allocation of law library time to inmates. I lay out the factual
background of each in turn.
A. Photocopy Policy
Plaintiffs first argue the prison’s photocopy policy
infringes their right of access to the courts. The photocopy
machine is located in Rouleau’s office and any legal material
2 In evaluating motions for summary judgment, I describe the facts in the light most favorable to the nonmoving party. Because I have granted defendants’ motion for summary judgment, I describe the facts in the light most favorable to the plaintiffs.
2 that an inmate wishes to have copied must be given to Rouleau.3
Rouleau does not read documents that are submitted for copying
but she does inspect them for staples or crumpled paper that
could damage the copier. She also confiscates documents that
upon cursory review appear to be contraband items. Any
confiscated documents are reviewed in depth and, if determined to
be benign, are returned to the inmate. One such incident
occurred when Cookish attempted to have a town’s voter checklist
photocopied as part of an action he was preparing to file in
state court. Rouleau seized the document and had it reviewed
before returning it to Cookish three days later after it was
determined that Cookish could properly have the voter checklist.
Likewise, inmates are not allowed to possess the property of
another, and when Cookish tried to photocopy public files
relating to other inmates, the documents were seized until it was
determined that Cookish was entitled to use them for his own
research purposes.
3 Cookish and Donovan allege that Rouleau impermissibly reads privileged and confidential legal materials when she reviews documents submitted for copying. The record, however, contains no evidence to support these conclusory claims.
3 Photocopying at the law library is not “on demand.” Rather,
all documents submitted for copying are required to be copied
within 24 hours. Most copies, however, are completed and
returned to inmates within a few minutes to a few hours.
Photocopying is not free. Inmates must pay 10¢ for each side of
a page that is copied, regardless of how much copying an inmate
requires.4 The cost of copies is deducted from an inmate’s
account. If an account has insufficient funds, the Inmate
Accounts Office notifies the photocopy service provider office to
cease photocopy service to that inmate until the shortage is made
up. The Inmate Accounts Office then automatically withdraws the
shortage from the inmate’s next monthly pay and notifies the
inmate of such action.
B. Inmate Law Clerks
Plaintiffs next challenge the prison’s hiring policy and its
use of inmate law clerks. The prison has a standing policy that
inmates using the law library are not to assist each other
without the warden’s approval and are to conduct their research
quietly and independently. Rouleau employs two inmate law clerks
Outside parties are charged 50¢ per page.
4 who assist her in guiding inmates to find what they need in the
law library. These inmate law clerks, however, may not give
legal advice or conduct research for others. In hiring inmate
law clerks, legal research proficiency is desirable, but a
priority is placed on penologically important qualifications such
as good conduct, work ethic, and a lack of security issues. If
an inmate law clerk is unable to assist an inmate, Rouleau can
assist him.
Cookish applied for an inmate law clerk position but was not
hired despite his legal research experience. Cookish cited his
previous experience as an inmate law clerk at a different New
Hampshire state prison and two and a half years of legal study at
the Nova University College of Law on his application.
Nevertheless, Rouleau did not hire Cookish as an inmate law clerk
because she claimed that the positions were already filled. In
an affidavit submitted with her motion for summary judgment,
Rouleau also cited Cookish’s tendency to not follow prison
regulations by dispensing legal advice as another reason why he
was not hired. Cookish has admitted to assisting at least one
other inmate in preparing and drafting legal pleadings.
5 Plaintiffs also complain that inmate law clerks are
untrained in finding the law and are unable to give legal advice
or prepare legal pleadings for inmates.
C. Research Materials
Plaintiffs next challenge the adequacy of the prison law
library. The NCF law library has a combination of law books and
computers with research tools installed on them. Near the end of
2001, the law library began to shift away from hardbound books
toward a computer based system. Prior to that time, law books
were supplemented with various subscription services to keep them
current. When some of the subscription services lapsed, updated
legal material became available under Loislaw5 on the inmate law
library computers, with the librarian’s computer having an
internet connection and expanded access to Loislaw. The library
still has some hardbound books, such as Federal Jury Practice and
Instructions, Jury Instructions, and Federal Practice and
Procedure, just to list a few items from the library’s inventory.
5 Loislaw is a computer based legal research system available on computer disk or the internet. Loislaw offers access to a range of legal materials, ranging from federal and state court opinions, to federal and state law, to federal and state court rules. The scope of available legal material is limited by the type of Loislaw subscription a patron has.
6 Inmates have access to both state and federal law under the
Loislaw system, including, but not limited t o , New Hampshire
Rules of Evidence, Practice and Procedure, New Hampshire statutes
and case law, federal Circuit Court opinions, U.S. Supreme Court
opinions, Federal Rules of Civil and Appellate Procedure, and
Local Rules of Procedure. The U.S. Code is available on Loislaw
through the librarian.6 If Rouleau is unable to find what an
inmate needs, the inmate can fill out a request form and Rouleau
can pass on the request to the main prison library, the inmate
attorney, the prison’s in-house counsel, or even the New
Hampshire Supreme Court library. Inmate law clerks are trained
in the use of Loislaw and Loislaw instruction booklets are
available to inmates.
On at least one occasion, Cookish requested two cases from
Rouleau and was provided with copies of both cases. He also
requested a copy of the Prison Litigation Reform Act, 42 U.S.C. §
1997, the Civil Rights Act, 42 U.S.C. § 1983, and the Federal
6 During the transition from hardbound books toward a computer based system, the pocket part for 42 U.S.C. § 1983 disappeared from the law library. Inmates, however, could obtain any updated information via requests to the law librarian who would obtain the information from other sources.
7 Communications Act, 47 U.S.C. § 1 5 1 , with all of their
annotations. Rouleau attempted to fulfill this request by
requesting copies of the relevant material from the New Hampshire
Supreme Court library. She, however, eventually denied his
request as overly broad after she was informed that it would
require copying and shipping more than 380 pages for just one of
the statutes and its corresponding annotations, something the New
Hampshire Supreme Court library was not prepared to d o . Cookish
did nothing to narrow his request after this problem was
explained to him. The library has since acquired a copy of the
Prison Litigation Reform Act.
D. Library Scheduling
The final policy the plaintiffs challenge is the law
library’s scheduling policy. Inmates are allowed access to the
law library once per week for four hours, and the librarian
schedules inmate appointments weekly per prison policy. Inmates
who fail to keep their library appointments, or fail to cancel
them, are subject to disciplinary action. Cookish had his
scheduled library visits changed from Thursdays to Mondays in
June, 2003. This change effectively stopped Cookish from going
8 to the library for a week because there was no Thursday in the
last week of June and no Monday in the first week of July
(6/27/03-7/5/03), a total of 8 days. Cookish claims that when he
questioned Rouleau about this change, he was told he would only
receive four library visits a month, not one visit every week.
This would effectively deprive him of four library visits a year,
since a visit every week results in 52 visits a year, while four
visits a month only results in 48 visits a year.
II. STANDARD OF REVIEW
Summary judgement is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] may reasonably be resolved
in favor of either party.” Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 250 (1986). A material fact is one that affects the
outcome of the suit. See id. at 248.
9 In ruling on a motion for summary judgment, I must construe
the evidence in the light most favorable to the nonmovant. See
Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001). The
party moving for summary judgment, however, “bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323
(1986). Once the moving party has properly supported its motion,
the burden shifts to the nonmoving party to “produce evidence on
which a reasonable finder of fact, under the appropriate proof
burden, could base a verdict for i t ; if that party cannot produce
such evidence, the motion must be granted.” Ayala-Gerena v .
Bristol Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing
Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 2 4 9 ) . Neither
conclusory allegations, improbable inferences, or unsupported
speculation are sufficient to defeat summary judgment. See
Carroll v . Xerox Corp., 294 F.3d 2 3 1 , 236-37 (1st Cir. 2002).
III. ANALYSIS
Plaintiffs’ claims hinge on the extent to which the
10 challenged policies impede their access to the courts. “It is
undisputed that inmates have a fundamental constitutional right
of access to the courts.” Carter v . Fair, 786 F.2d 433, 435 (1st
Cir. 1986) (citing Bounds v . Smith, 430 U.S. 8 1 7 , 828 (1977)).
This right of access, however, only “requires prison authorities
to assist inmates in the preparation and filing of meaningful
legal papers by providing prisoners with adequate law libraries
or adequate assistance from persons trained in the law.” Bounds,
430 U.S. at 828. In order to make a claim that this right of
access has been denied, an inmate “must go one step further and
demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim.”
Lewis v . Casey, 518 U.S. 343, 351 (1996). The right of access
“is ancillary to the underlying claim, without which a plaintiff
cannot have suffered injury by being shut out of court.”
Christopher v . Harbury, 536 U.S. 403, 415 (2002). It therefore
“follows that the underlying cause of action, whether anticipated
or lost, is an element that must be described in the complaint,
just as much as allegations must describe the official acts
frustrating the litigation.” Id.
11 It is important to note that because the touchstone is
meaningful access to the courts, “prison law libraries and legal
assistance programs are not ends in themselves, but only the
means for ensuring ‘a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the
courts.’” Lewis, 518 U.S. at 351 (quoting Bounds, 430 U.S. at
825). “Because Bounds did not create an abstract, freestanding
right to a law library or legal assistance, an inmate cannot
establish relevant actual injury simply by establishing that his
prison’s law library or legal assistance program is subpar in
some theoretical sense.” Id. Therefore, in order for the
plaintiffs to assert a violation of their constitutional right of
meaningful access to the courts under Bounds and its progeny,
they must “demonstrate that a nonfrivolous legal claim had been
frustrated or was being impeded” by the policies and practices of
the prison authorities. Lewis 518 U.S. at 353; see also
Christopher, 536 U.S. at 413-15.
A prison regulation or practice may interfere with a
fundamental constitutional right of access to the courts if the
challenged regulation or practice bears a rational relation to
12 legitimate penological interests. See Overton v . Bazzetta, 123
S.Ct. 2162, 2167 (2003); Lewis, 518 U.S. at 361; Savard v . Rhode
Island, 338 F.3d 2 3 , 30-31 (1st Cir. 2003). Thus, even if
plaintiffs are able to establish that the policies that they
challenge actually impeded their access to the courts with
respect to a specific claim or claims, they are not entitled to
relief if the policies satisfy this requirement. As I explain
below, plaintiffs’ claims fail both because they cannot prove
that the challenged policies actually impeded their ability to
litigate specific claims and because the policies are rationally
related to legitimate penological interests.
Although plaintiffs clearly are unhappy with the prison’s
photocopy policy, they have not established that the policy
materially impeded their ability to litigate any specific claim.
As I have explained, this defect is fundamental and it
necessarily defeats their claim. Even if plaintiffs could
overcome this hurdle, however, they still could not succeed
because the prison photocopy policy does not materially burden
their ability to access the courts as a general matter and the
policy is rationally related to legitimate penological interests.
13 1. Photocopying By Librarian
Requiring inmates to temporarily hand over legal materials
to the librarian for up to 24 hours for photocopying does not
materially affect an inmate’s ability to access the courts as a
general matter. “[I]t would be unrealistic to expect prison
authorities to give all prisoners unfettered access to all of
their legal materials at all times.” Sowell v . Vose, 941 F.2d
3 2 , 35 (1st Cir. 1991). “[W]here a prisoner . . . does not
allege an absolute deprivation of access to all of his legal
materials, but rather complains about some sort of conditional
restriction of access to some of them, [I] think it fair to
require him to show an ‘actual injury’ as a prerequisite to
recovery.” Id. Losing access to legal materials for up to 24
hours while they are copied by the librarian can hardly be
construed as an absolute denial of access to all legal materials.
More importantly, no actual injury has been shown by
plaintiffs stemming from this policy. Even when questionable
documents are seized by the librarian, they are readily returned
if Rouleau determines that they are not contraband items. When
Cookish had documents temporarily seized by Rouleau after
submitting them for photocopying, the documents were returned to
14 Cookish within three days. Cookish has not shown that this
three-day seizure of his documents caused him to miss a filing
deadline or otherwise impede his ability to access the courts
with respect to any specific claim. Under the circumstances,
this delay was not unreasonable. See, e.g., Lewis, 518 U.S. at
362 (16 day delay in accessing legal material allowed); Vigliotto
v . Terry, 873 F.2d 1201, 1202 (9th Cir. 1989) (three-day
deprivation of legal materials not a constitutional deprivation).
Plaintiffs also assert that the prison photocopy policy
allows Rouleau to impermissibly review and read legal documents
submitted for photocopying. Plaintiffs seem to base this
argument on an assertion of privacy rights in the legal materials
submitted for photocopying. Plaintiffs, however, are inmates,
and as such have only limited privacy rights. See Stow v .
Grimaldi, 993 F.2d 1002 (1st Cir. 1993) (prison policy of
inspecting prisoners’ non-privileged outgoing mail found
permissible because it furthered the important governmental
interest of security and was a minimal limitation on prisoners’
First Amendment rights); Warburton v . Goord, 14 F. Supp. 2d 289,
293 (W.D.N.Y. 1998) (prison officials searching an inmate’s law
library desk, typewriter memory, and a crate containing legal
15 materials found to not violate inmate’s privacy rights nor deny
inmate access to the courts). 7
Additionally, requiring the librarian to review all
documents submitted for photocopying is reasonably related to a
legitimate penological interest. All documents to be photocopied
are checked for staples, crumpled pages, tape, or other defects
which might damage the photocopier. Ensuring that the copy
machine is not damaged and remains of use to the inmates is a
legitimate penological interest. Also, preventing inmates from
using the copier for illegal activities or for other activities
that may pose a security risk or impact on public safety, is
clearly related to a penological interest. Therefore, even if
plaintiffs could establish that the photocopy policy interfered
with their abilities to exercise their right to access the
courts, it is still valid under Overton because it is reasonably
related to a legitimate penological interest.
7 Plaintiffs do not argue that the documents at issue are protected by the work product privilege. Further, because plaintiffs have not identified any evidence suggesting that Rouleau or any of the other defendants have used the photocopying policy to review documents that are protected by the attorney- client privilege, I need not speculate about whether the policy would permit Rouleau to read privileged documents.
16 2. Photocopy charges
Plaintiffs claim the policy of charging 10¢ per side of each
page copied also deprives them of meaningful access to the
courts. Once again, however, the plaintiffs fail to explain how
they have been actually injured by this policy. Prisons are not
required to provide free, unlimited photocopy services to all
inmates. Wanninger v . Davenport, 697 F.2d 9 9 2 , 994 (11th Cir.
1983) (“We agree with the Tenth and Third Circuits that jail
officials do not necessarily have to provide a prisoner with
free, unlimited access to photocopies of legal precedents in
order to protect the prisoner’s right to access to the courts.”).
“The prisoner’s right of access to the courts may be balanced
against the State’s legitimate interests, including budgetary
concerns . . . . The State should not be forced to provide free
access to copier machines for prisoner use when there is an
acceptable, less costly substitute.” E.g., Gittens v . Sullivan,
670 F. Supp. 119, 122 (S.D.N.Y. 1987) aff’d, Gittens v . Sullivan,
848 F.2d 389 (2d Cir. 1988). Since prisons need not provide
free, unlimited copies, it is reasonable for the prison to charge
a small fee for providing and maintaining the copy service. Such
a fee is reasonably related to the legitimate penological
17 interest of providing inmates with services while minimizing
state budgetary expenses. Here, all proceeds taken in for copies
are returned to the inmate Recreation Fund to continue support of
equipment and supplies for the inmates, further advancing a
legitimate interest of maintaining adequate recreational
equipment for inmates. Therefore, even if plaintiffs could
demonstrate an actual injury stemming from the 10¢ copy fee, the
fee is permissible because it is reasonably related to a
legitimate penological interest.8
Plaintiffs next contend that the prison impermissably hires
under-qualified inmates while refusing to hire inmates such as
Cookish who have a background in the law. They also challenge
the limitations placed on inmate law clerks, who, per prison
policy, are not allowed to give legal advice, conduct legal
research for other inmates, or assist in drafting legal
pleadings. The hiring and use of inmate law clerks in the prison
8 While I can conceive of circumstances in which an indigent inmate might be entitled to a court order exempting him from photocopying charges in a particular case, plaintiffs’ claim that the 10¢ per copy charge is in all cases an impermissible interference with an inmate’s right of access to the courts simply has no merit.
18 law library, despite plaintiffs’ protestations, does not deny
plaintiffs their constitutional right of access to the courts.
Not only have plaintiffs failed to demonstrate an actual injury
stemming from this policy, but such a policy is reasonably
related to a legitimate penological interest, and is therefore
valid.
Contrary to plaintiffs’ assertions, there is no freestanding
constitutional right to legal advice. Shaw v . Murphy, 532 U.S.
223, 231 n.3 (2001). Rather, under the Supreme Court’s “right-
of-access precedents, inmates have a right to receive legal
advice from other inmates only when it is a necessary means for
ensuring a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the courts.”
Id. (quotations and citations omitted); Lindquist v . Idaho State
Bd. of Corr., 776 F.2d 8 5 1 , 857 (9th Cir. 1985) (“Inmate law
clerks need not be extensively trained to possess adequate
ability to assist disadvantaged inmates and to provide them
constitutionally sufficient access to the courts.”). This is not
the case here. The prison provides ample resources to inmates to
ensure that they have access to the courts. Plaintiffs’ own
success in presenting their claims demonstrate the sufficiency of
19 the access provided. See Lewis, 518 U.S. at 360 (“the
Constitution does not require that prisoners . . . be able to
conduct generalized research, but only that they be able to
present their grievances to the courts”). Plaintiffs fail to
identify any actual injury stemming from the prison’s policy of
prohibiting inmate law clerks from assisting on legal issues.
The prison’s policy on the hiring and use of inmate law
clerks also serves a legitimate penological interest. “[I]t is
‘indisputable’ that inmate law clerks ‘are sometimes a menace to
prison discipline’ and that prisoners have an ‘acknowledged
propensity . . . to abuse both the giving and the seeking of
[legal] assistance.’” Shaw, 532 U.S. at 231 (quoting Johnson v .
Avery, 393 U.S. 483, 488 (1969)). For this reason the prison
prohibits any inmates from rendering legal advice of any kind to
other inmates while in the law library without approval from the
warden. Likewise, the importance of maintaining order in the law
library requires the hiring of inmate law clerks who will follow
prison rules and regulations. This includes not assisting other
inmates by rendering legal advice, something Cookish admits he
has done. Thus, the prison’s policy of hiring inmate law clerks
who follow the rules and regulations of the prison by not
20 dispensing legal advice or drafting pleadings for other inmates
is consistent with upholding the legitimate penological interest
of maintaining prison discipline. Therefore, under Overton, the
prison’s inmate law clerk policies are valid even if plaintiffs
could establish that the policies interfered with their abilities
to access the courts in particular cases.
C. Adequacy of Research Materials
Plaintiffs also argue the prison law library is inadequate.
They point to the transition period when the library switched
from mostly hardbound books to computer based resources, and
claim that the library failed to maintain current law and failed
to provide computer access to legal research materials. The
facts, however, do not support this allegation.
Much like the First Circuit held in previous litigation
brought by Cookish, the plaintiffs here are “asking for too
much.” Cookish v . Cunningham, 787 F.2d 1 , 5 (1st Cir. 1986).
Like the library then in question, the NCF prison library
“contain[s] numerous volumes on prisoner’s rights, civil rights,
habeas corpus, and legal research, as well as appropriate
reporters, encyclopedias, dictionaries, and statute books.” Id.;
see also Lindquist, 776 F.2d at 856 (“the Prison need not provide
21 its inmates with a library that results in the best possible
access to the courts”). The only difference is that the majority
of these resources are now available in electronic format instead
of in hardbound volumes. Inmates have access to most of their
resources on Loislaw, and booklets as well as inmate law clerks
are available to instruct inmates on the use of Loislaw. Any
resource not available directly through Loislaw is available to
the inmates through a request process with the librarian. The
librarian has access to an expanded version of Loislaw through
the internet and can submit inmate requests to the inmate
attorney, the prison in-house counsel, and even to the New
Hampshire Supreme Court library. Any required statute can be
accessed through the librarian’s version of Loislaw or by
requesting copies of specific sections of the statute from the
New Hampshire Supreme Court library. Although Cookish claims
that Rouleau denied three different requests for statutes with
their corresponding annotations, these denials were permissible
as only one of the requested statutes and its corresponding
annotations would have required over 380 pages be copied and sent
from the New Hampshire Supreme Court library to the prison, an
excessive request from any perspective. See Lewis, 518 U.S. at
22 355 (“Bounds does not guarantee inmates the wherewithal to
transform themselves into litigating engines”). Moreover,
Cookish was free to renew his request provided that he could
narrow what he wanted into manageable sections. He never
bothered to do s o .
Given the library resources available to plaintiffs, it is
difficult to see how the plaintiffs can credibly claim that they
are denied access to the courts. Under Lewis, “the Constitution
does not require that prisoners (literate or illiterate) be able
to conduct generalized research, but only that they be able to
present their grievances to the courts -- a more limited
capability that can be produced by a much more limited degree of
legal assistance.” 518 U.S. at 360. Plaintiffs’ ability to
bring this suit and pursue it to the summary judgment stage is
evidence in and of itself of plaintiffs’ ability to gain
meaningful access to the courts. See, e.g., Graham v . Cattell,
Opinion N o . 2003 DNH 2 0 . More importantly, however, plaintiffs
are still required under Lewis to demonstrate an actual injury
resulting from the alleged inadequacy of the library. See also
Christopher, 536 U.S. at 413-15. The mere “identification of
speculative harm, that [they are] denied the opportunity to
23 litigate issues . . . that [they] might find in [resources not
currently available in the library], is insufficient.” Lambros
v . Hawk, 993 F. Supp. 1372, 1373 (D. Kan. 1998). At best, this
is all plaintiffs assert by claiming they are “wholly unable to
do research on conditions of confinement issues [they] would like
to pursue.” (Pls.’ Mot. for Summ. J. at 12.) Plaintiffs have
failed to assert the requisite actual injury required by Lewis in
their allegations of an inadequate law library.
Finally, plaintiffs claim their right of access to the
courts was impermissibly infringed by the prison’s law library
scheduling policies. Inmates are only given access to the law
library once a week, for a four hour period. If inmates are late
or fail to keep their scheduled appointment without informing the
librarian, they are subject to disciplinary action. Cookish
asserts that he was inappropriately targeted by Rouleau and had
his scheduled library day changed from Monday to Thursday in
June, 2003. This, Cookish, claims, denied him access to the
library for a period of eight days.
Plaintiffs yet again fail to demonstrate an actual injury
arising from the library scheduling policy that allegedly
24 infringed their right of access to the courts. Plaintiffs “must
demonstrate that the alleged shortcomings . . . resulted in an
actual injury with respect to existing or contemplated
litigation, such as the inability to present a claim or to meet a
filing deadline.” Grimes v . Small, 34 Fed. Appx. 279, 280 (9th
Cir. 2002). No such showing of actual injury has been made by
plaintiffs. All that plaintiffs can show is reasonable delay and
inconvenience, not an actual injury as required under Lewis.
In evaluating the reasonableness of the scheduling policy,
it is important to note that “the Constitution does not guarantee
a prisoner unlimited access to a law library. Prison officials
of necessity must regulate the time, manner, and place in which
library facilities are used.” Lindquist, 776 F.2d at 858. Here,
defendants are merely enforcing the reasonable prison policy
regulating the use of the prison law library to ensure it is well
maintained and that inmates are accounted for. “The fact that an
inmate must wait for a turn to use the library does not
necessarily mean that he has been denied meaningful access to the
courts.” Id.; Wilson v . Bruce, 816 F. Supp. 679, 680 (D. Kan.
1993) (“Meaningful access to the courts is not denied merely by
inconvenient or reasonably restrictive access to the law
25 library.”). A policy limiting inmates to four-hour visits once a
week to the law library is clearly permissible as a regulation
reasonably related to a legitimate penological interest. Even
the eight-day delay in access that Cookish complains of is
clearly permissible. See, e.g., Lewis, 518 U.S. at 362 (sixteen
day delay in accessing legal material permissible); Campbell, 787
F.2d at 227 (delay of eight days in accessing library permissible).9
IV. CONCLUSION
Taking the facts in the light most favorable to the
plaintiffs, I find the prison’s photocopy policy, its hiring and
use of inmate law clerks, its law library, and the law library
scheduling to be constitutionally adequate to ensure plaintiffs’
right of meaningful access to the courts. For this reason, and
because plaintiffs’ have alleged no actual injury, I deny
9 There may well be circumstances in which an inmate may require more time in the law library than the current policy permits. If an inmate can demonstrate in a particular case that his right of access to the courts requires additional time in the law library, a court can always order the prison to give the inmate more time. In this case, however, plaintiffs have failed to make any such showing.
26 plaintiffs’ motion for summary judgment (Doc. N o . 21) and grant
defendants’ motion for summary judgment (Doc. N o . 3 5 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
March 1 1 , 2004
cc: Dennis R. Cookish, pro se Michael Donovan, pro se Andrew Livernois, Esq.