Douglas L. Adams and Gary M. Piccirillo, Ronnie McKane v. Rodrick James, Henry Ziegler, Jr., Don Merritt, J.F. Tompkins, and Louie L. Wainwright

784 F.2d 1077, 1986 U.S. App. LEXIS 27988

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 18, 1986
• Docket: 85-3294
• Status: Published

Opinions

HATCHETT, Circuit Judge:

Does a prison inmate have a constitutional right not to be transferred from a job as law clerk because it deprives other inmates of the law clerk’s legal services? Or, stated otherwise, may a “jailhouse lawyer” interpose the interests of other inmates to block an action by prison officials, if it will make the jailhouse lawyer less available to help the other inmates to file grievances or lawsuits? In Bridges v. Russell, 757 F.2d 1155 (11th Cir.1985), this court held open the question whether the first amendment encompasses a prisoner’s asserted right to assist other inmates in filing grievances. In this case, the district court held that depriving other inmates of services by transferring a prison law clerk would not infringe the law clerk’s first amendment rights. We affirm on that issue, but remand for consideration of other legal theories the plaintiffs sought to put before the district court.

Douglas L. Adams and Gary M. Piccirillo were inmate law clerks at Polk Correctional Institute (Polk), an institution in the Florida State Prison System. West Publishing Company had trained them as law clerks.

At the peak of their activity as inmate law clerks, Adams and Piccirillo and two other law clerks assisted an average of 400 inmates a month with legal problems. They also conducted classes to teach legal skills to other inmates.

This dispute centers on the dismissal of Adams and Piccirillo from their jobs as law clerks and their later transfer to Union Correctional Institution (UCI), which for purposes of this opinion we deem a more punitive institution. The events leading to their dismissal began with a letter typed by Adams to news outlets about one of Adams’s cases. Roderick James, educational supervisor at Polk, intercepted the letter and thereafter informed all the law clerks that letters to the media could not be typed on law library typewriters and that law clerks could not help inmates complete DC77 complaint forms (administrative appeals).

Soon after, Adams and Piccirillo discovered copies of case papers they had mailed for another inmate on the desk of their supervisor, Henry Ziegler, Jr. Piccirillo removed the papers. Ziegler immediately ordered Adams and Piccirillo to accompany him to the office of Don Merritt, the classification supervisor at Polk. When the group arrived at Merritt’s office, he dismissed Adams and Piccirillo from their jobs as law clerks. Merritt assigned Adams to the prison cabinet shop and assigned Piccirillo to be a dorm orderly. No reasons for the reassignments were given.

Both Adams and Piccirillo filed administrative appeals of their dismissals. Each was denied without a reason. Adams and Piccirillo were eventually denied access to the prison library.

On August 18, 1982, prison officials transferred Adams and Piccirillo to Union Correctional Institution. The reason given was to relieve overcrowding at Polk.

Prison officials have offered explanations for their removal of Adams and Piccirillo from their duties as law clerks and for their transfer to UCI. Merritt stated that he transferred Adams to alleviate the cost burden of filling Adams’s many requests (2,000 to date) for documents not available in Polk’s “minor law library.” Ziegler states that he and James suspected Adams and Piccirillo of charging for their services to other inmates, sabotaging prison typing equipment, and violating policy and procedure by sending written requests to outside sources, such as the Florida State University Law Library in Tallahassee. Ziegler further stated that Adams’s and Piccirillo’s “behaviors are very anti-institutional ... making their continuance as inmate law clerks less than desirable and even counter-productive.”

The district judge granted the appellees’ motion for summary judgment under Rule 56, Federal Rules of Civil Procedure. In reviewing a summary judgment, we subject legal conclusions to “the same standard of appellate review as any question of law raised upon appeal.” Morrison v. Washington County, Alabama, 700 F.2d 678, 682 (11th Cir.1983). On a question of law our review is plenary. See Federal Deposit Insurance Corp. v. Dye, 642 F.2d 837, 841 (5th Cir.1981). We view any inferences to be drawn from the evidence in the light most favorable to the party opposing the motion. Bingham Ltd. v. United States, 724 F.2d 921, 924 (11th Cir.1984).

The first basis for the district court’s dismissal of Adams’s and Piccirillo’s claims was the principle that prison inmates do not have a constitutionally protected right to remain at a particular penal institution, Fla.Stat. § 945.09(3); see Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The district court also ruled that inmates do not have an expectation of keeping a certain job, cf. Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir.1980) (citing Altizer v. Padernick, 569 F.2d 812, 813 (4th Cir.1978)); Bryan v. Werner, 516 F.2d 233 (3d Cir.1975).

These conclusions are correct. Prison administration requires a flexibility that cannot be burdened by the accumulation of expectations about the situations in which prisoners are placed temporarily. The due process clause does not “in and of itself protect a duly convicted prisoner against” a change of status. See Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (transfer from one institution to another within the state prison system).

An assignment to the job of law clerk does not invest an inmate, or those he assists, with a property interest in his or her continuation as a law clerk. Despite the aspect of property in the accumulation of experience and intellectual capital by the inmate law clerk, job assignment and reassignment remain the prerogative of the prison administrators. A routine reassignment of an inmate law clerk does not enable an inmate to state a claim in federal court. This is true despite the nexus between a law clerk’s primary activity and other constitutional rights retained by inmates, such as the right of free speech, and the right of access to court. See Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); compare Hoppins v. Wallace, 751 F.2d 1161 (11th Cir.1985) (reasonableness of limitation on affirmative assistance to litigious inmate).

Adams and Piccirillo, however, have constitutional rights independent of any asserted property interest in being law clerks. Prisoners retain constitutional protections despite the necessary restrictions on their rights and privileges. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). The lack of entitlement to a particular privilege does not free prison administrators to grant or withhold the privilege for impermissible reasons. The doctrine of unconstitutional conditions prohibits terminating benefits, though not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe. See Thomas v. Review Bd., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

This court has applied the unconstitutional conditions doctrine to prisoner suits. In Bridges v. Russell, 757 F.2d 1155 (11th Cir.1985), a prisoner’s allegation that he was transferred to another prison in retaliation for his exercise of first amendment rights of free speech was held to require factual resolution. In Hall v. Sutton, 755 F.2d 786 (11th Cir.1985), an allegation of a constitutionally improper retaliatory motive for the taking of tennis shoes enabled an inmate to avoid the rule of Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), that an intentional deprivation of property does not violate due process if an adequate state procedure exists to redress the deprivation.

Similarly, the Seventh Circuit has applied independent constitutional scrutiny to a prison’s assignment of cellmates. The court held that, although prisoners have no valid expectation of a cellmate or job of their own choosing, an inmate’s charge that the prison had a policy of segregating black from white inmates in cell and job assignments stated a claim for which relief could be granted. Harris v. Greer, 750 F.2d 617 (7th Cir.1984).

The district court also concluded that Adams and Piccirillo lacked standing to state a constitutional claim because they were complaining about the deprivation their removal as law clerks imposed on other inmates.

In Bridges v. Russell, this court left open the question whether the first amendment encompasses an inmate’s asserted right to assist other inmates in filing grievances. Bridges, 757 F.2d at 1157. In Bridges, speech personal to the inmate constituted part of the conduct for which he alleged he had been assigned to a more punitive prison. This allegation was sufficient to require remand.

In one view, Adams and Piccirillo are simply asserting other inmates’ right of access to the courts. In this view, other inmates still have legal assistance available through replacement clerks, and Adams and Piccirillo may not assert whatever interest other inmates have in being assisted by them rather than someone else. This is the district court’s view, and we affirm that view.

On appeal, Adams and Piccirillo insist that they raised claims urging their own first amendment rights in the district court, but the district court misunderstood their position; consequently, they have been denied relief.

It is important that we review the case presented to the district court rather than a better case fashioned after the district court’s order. The problem we face is that it is difficult to discern the exact theories on which the appellants proceeded in the district court.

The district court found: “Plaintiffs have no personal stake in the other prisoners’ rights to access to the courts, and, have no standing on this issue.” In this non-class-action lawsuit, the district court has answered the question left open in Bridges in the negative. We agree. In a non-class-action context a prisoner has no standing to litigate another prisoner’s claim of denial of access to the courts. Contra Buise v. Hudkins, 584 F.2d 223, 227 (7th Cir.1978) (arguing that the Supreme Court allowed an inmate writ writer to raise fellow inmates’ right of access to court to attack a general prohibition of writ writing and applying the precedent to an individual claim that an inmate’s transfer violated other inmates’ access to court if state did not show alternative access. Citing Johnson v. Avery, discussed below).

But the above conclusion is not the end of the matter. Adams and Piccirillo, on appeal, argue that they pleaded and sought to assert in the district court a first amendment right personal to them, a right other than the right to hold a particular job or to be assigned to a particular institution. The pleadings are broad enough to encompass such a theory, but that theory was not ruled on in the district court. We decline the invitation to rule on such a theory without development before the district court.

The Seventh Circuit in Buise v. Hudkins, 584 F.2d 223 (7th Cir.1978), has outlined the analysis that courts must make when faced with the assertion that a prisoner has suffered retaliation because of the exercise of a protected right.

Several legal principles regarding prisoner writ writing are well established. A prisoner has a right to be his own jailhouse lawyer. Sigafus v. Brown, 416 F.2d 105 (7th Cir.1969). Likewise, a prisoner has the right to assistance from other inmates. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).

The personal right of an inmate to express ideas, either through the medium of speaking and writing or through “public interest” litigation, is harder to describe in the abstract. Associational rights are necessarily curtailed by imprisonment. Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). Yet some expression by inmates will be found to be at the core of the protections of the first amendment. Litigation undertaken in good faith by a prisoner motivated to bring about social change and protect constitutional rights in the prison is a “form of political expression” and “political association” much as the Supreme Court has held litigation to be for certain organizations outside the prison setting. See NAACP v. Button, 371 U.S. 415, 419, 431, 83 S.Ct. 328, 330-31, 337, 9 L.Ed.2d 405 (1963) (NAACP); In Re Primus, 436 U.S. 412, 428, 98 S.Ct. 1893, 1902-03, 56 L.Ed.2d 417 (1978) (ACLU). A properly stated first amendment claim by an inmate does not fail simply because the allegedly protected activities were conducted on behalf of others. The right of free expression is cherished for its force as an agent of social change and not only as a right of self-interested individuals.

In a prison, of course, first amendment rights are not absolute. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Legitimate policies and goals of the correction system may justify restrictions limiting prisoners’ associational rights. 417 U.S. at 821. Also, principles from outside the prison context could deprive an inmate of a credible first amendment claim. For instance, undisputed evidence that Adams and Piccirillo were charging for their services as law clerks would undermine, if not eliminate, any personal first amendment claim. See In Re Primus, 436 U.S. at 428-30, 83 S.Ct. at 335-36. These considerations — the legitimate prison policies and the substantiality and good faith of an inmate’s associational activity — are the ones that would be relevant to whether a prisoner stated a personal first amendment claim.

To summarize, we have stated three propositions concerning “jailhouse lawyering.”

First, an inmate may not oppose a change of circumstance because it will harm another inmate or other inmates who have used or wish to use the inmate’s services. One or more inmate’s preferences for a particular prison lawyer has no bearing on the administrative authority of prison officials over a prison lawyer’s personal situation. We do not adopt the Seventh Circuit’s view that the Supreme Court’s willingness in Johnson v. Avery to hear an inmate’s challenge to a blanket prohibition on writ writing entitles one identifiable inmate to raise the right of other inmates to a continuation of that inmate’s services unless the state affirmatively shows alternative access. See Buise, 584 F.2d at 227-29. To do so would obliterate the principle that prison officials control prison job assignments, cell assignments, and the like and would introduce a property interest akin to a lawyer’s in the practice of law.

Second, prison officials may not retaliate against an inmate for exercising a constitutionally protected right. Since prisoners retain some first amendment rights, a claim that prison officials retaliated for the exercise of a personal first amendment right states a claim. See Bridges, 757 F.2d 1155.

Third, in a prison, first amendment rights are identified by balancing the right asserted against the need of the prison for discipline. This is admittedly the most difficult of the propositions to state as applied to an instance of prison discipline. Most authority that establishes the limited nature of first amendment rights in prisons deals with the easier problem of restrictive regulations. See, e.g., Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495. In a discipline case, the district court must assess whether the specific activities of a prisoner deserve classification as a protected form of expression.

Some activities of prisoners are indisputably at the core of values protected by the first amendment, even if they are undertaken on behalf of others.¹ For example, if a prisoner living in a heated wing of a prison should write a newspaper protesting the lack of heat in another wing of the prison, the activity would be a protected one. See Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Yet we recognize the evils associated with prison writ writing, discussed by Justice White in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (dissenting). Not every instance of prison writ writing can be said to lie at the core of first amendment protected activities.²

Even though Johnson establishes that prison officials do not have the authority to prohibit writ writing, it does not follow that every time a prisoner aids in the preparation of a writ, the act of doing so gives the prisoner first amendment rights and renders the exercise of prison authority suspect.³

As with any balancing test, the guidance to the district court is less certain than if the principle can be stated absolutely. Nevertheless, the district court should be able to determine whether a prisoner has pleaded facts that, in light of the limitations on prisoner’s first amendment rights, state a claim that prison officials have retaliated for the exercise of core first amendment rights.

We affirm in part and remand to allow the appellants to identify the personal constitutional right they have pleaded and for the district court to rule on that theory.

AFFIRMED IN PART AND REMANDED.

1 . In speaking of the core of the first amendment protected values, we have in mind the function of the first amendment as an engine of social and political change. See, e.g., De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937) (describing importance of first amendment rights to process of obtaining change by peaceful means).

2 . We recognize that we are in effect suggesting that the motive of a prisoner claiming a first amendment associational freedom will bear upon whether the court finds that a claim has been stated. The Supreme Court has drawn a similar line in the case of regulation of professional solicitation and has also conceded that "the line, based in part on the motive of the speaker and the character of the expressive activity, will not always be easy to draw.” In Re Primus, 436 U.S. 412, 438 n. 32, 98 S.Ct. 1893, 1908 n. 32, 56 L.Ed.2d 417. We agree with the court’s conclusion that the difficulty of drawing the line "is no reason for avoiding the undertaking.” Primus at 438 n. 32, 98 S.Ct. at 1908 n. 32.

3 . The dissent errs when it states that the majority and the district court misunderstood Johnson v. Avery. The district court, concerned about the availability of assistance for other inmates, found, and stated in the order:

Plaintiffs’ first amended complaint clearly states that there were four inmate law clerks available, and that after Plaintiffs’ transfer, two remained in those positions. This is not a class action and there has been no allegation that other inmates at Polk Correctional Institution were denied the use of the law library or assistance of the remaining law clerks. Plaintiffs have no personal stake in the other prisoners’ rights to access to the courts, and, have no standing on this issue. [Emphasis added.] Because other law clerks are available — as the

district court found and as Adams and Piccirillo alleged — the principles of Johnson v. Avery are not implicated in this case. Our decision concerns only what personal rights a prisoner may raise in opposition to being transferred. Our holding does not bear upon a facial challenge, like that in Johnson v. Avery, to a prison policy that denies or obstructs the access of prisoners to the courts. We simply hold that the status of “jailhouse lawyer" does not give such an inmate special insulation from routine transfers and reassignments.