Larry A. Storseth, 623435 v. John D. Spellman

654 F.2d 1349, 1981 U.S. App. LEXIS 18134
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 31, 1981
Docket79-4682
StatusPublished
Cited by712 cases

This text of 654 F.2d 1349 (Larry A. Storseth, 623435 v. John D. Spellman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larry A. Storseth, 623435 v. John D. Spellman, 654 F.2d 1349, 1981 U.S. App. LEXIS 18134 (9th Cir. 1981).

Opinion

EUGENE A. WRIGHT, Circuit Judge;

I. INTRODUCTION

We are asked to determine (1) whether an inmate has a right to the assistance of an inmate v/rit writer of his choice to assure his right of access to the courts and (2) the extent of his First Amendment right to communicate with that writ writer. 1 Because inmate Storseth has enjoyed adequate access through other avenues, we hold that he does not have any right to inmate assistanee or to the aid of a writ writer of his choice. We hold also that the prohibition of his correspondence with his writ writer infringed on his First Amendment rights.

We affirm the district court’s order precluding intervention by Storseth’s inmate writ writer and offering to appoint counsel if Storseth agrees to abide by certain conditions. That part of the order barring inter-institutional correspondence between the two men is reversed.

II. FACTS

While in the Washington State Penitentiary at Walla Walla in 1977, Riddell, an inmate writ writer, prepared and filed a civil rights action under 42 U.S.C. § 1983 on Storseth’s behalf. It alleged mistreatment by the prison staff and failure to protect Storseth from other inmates. All papers filed up to July 31, 1979, were authored, signed, and filed by Riddell.

In March 1977, Riddell requested the court to appoint counsel for Storseth.

On October 27, 1977, Storseth was transferred to the State Corrections Center at Shelton at his request, and later to the State Reformatory at Monroe. The state prohibited correspondence between the two men after the transfer. In February 1978, Riddell, on Storseth’s behalf, successfully sought a court order allowing the two men to correspond about Storseth’s case subject to the state’s inspection of their mail.

Riddell renewed the Motion for Appointment of Counsel on December 27, 1977, seeking appointment of Fred M. Schuchart of Spokane. The court appointed Mr. Schuchart on February 22, 1978.

On March 23, 1978, the court vacated its order allowing communication between Storseth and Riddell because it found that Mr. Schuchart’s appointment rendered the communication unnecessary. It stated, however, that Riddell could communicate *1352 with Mr. Schuchart if necessary. Riddell and Storseth continued to correspond subject to the state’s inspection until Riddell was transferred to the Clearwater facility, a remote honor camp on the Olympic Peninsula. At that time, the state again prohibited their correspondence.

Despite Mr. Schuchart’s appointment, Riddell continued to author and file papers with the court on Storseth’s behalf. In June 1978, the court granted Mr. Schuchart’s motion to withdraw because of Rid-dell’s interference and Storseth’s request that Mr. Schuchart follow Riddell’s directions in the case.

For the next 13 months, Riddell continued to file papers for Storseth, including another Motion for Appointment of Counsel. During that time, Riddell was transferred to the Clearwater facility which has no law library.

On July 16, 1979, the district court ordered that (1) the court clerk accept no further pleadings from Riddell, (2) counsel would not be appointed until Storseth personally made the request and agreed to abide by an attorney-client relationship without interference from third parties, and (3) the appeal from the state’s ruling denying Riddell the right to correspond with Storseth was denied.

Storseth is back at the Corrections Center at Shelton. Riddell is at Clearwater.

Storseth appeals from the July 1979 order. 2

III. DISCUSSION

A. Inmate Assistance

Storseth contends that the district court denied him meaningful access to the courts by conditioning appointment of counsel on his agreement to proceed without Riddell’s interference and control, and by ruling that Riddell cannot file pleadings on his behalf. He argues that he has a right to inmate assistance and to Riddell’s services in particular because the state has not provided adequate alternatives of access.

1. Right to Inmate Assistance

It is well established that inmates have a constitutional right of access to the court. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). That right is premised on the Due Process Clause and assures inmates of the opportunity to challenge violations of their constitutional rights, Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974), and unlawful convictions. Procunier v. Martinez, 4Í6 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974). This right adheres to civil rights as well as to habeas corpus proceedings. Wolff, supra, 418 U.S. at 579, 94 S.Ct. at 2986.

The question before us is whether Storseth has enjoyed and presently has access to the courts without Riddell’s services. The crux of our inquiry is whether Storseth’s access has been and is “meaningful”. Bounds, supra, 430 U.S. at 823, 97 S.Ct. at 1495.

The state has the affirmative duty to provide constitutionally adequate access, id. at 829, 97 S.Ct. at 1498, and bears the burden of demonstrating the adequacy of the chosen method. Buise v. Hudkins, 584 F.2d 223, 228 (7th Cir. 1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979). Constitutionally acceptable means of access include provision of an adequate law library, Bounds, supra, 430 U.S. at 828, 830, 97 S.Ct. at 1498-1499, or a professional or quasi-professional legal services plan. Id., at 831, 97 S.Ct. at 1499.

When no adequate alternative is available, an inmate may have the assistance of an inmate writ writer. Johnson v. *1353 Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969). The state, however, retains the authority to impose “reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and seeking of assistance in the preparation of applications for relief. . . . ” Id. When meaningful alternatives are provided, the state may bar inmate writ writers altogether. Id.

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Bluebook (online)
654 F.2d 1349, 1981 U.S. App. LEXIS 18134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-a-storseth-623435-v-john-d-spellman-ca9-1981.