Smith v. Maloney

Opinion

USCA1 Opinion

November 2, 1993  UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1297

                                   MARVIN M. SMITH,

                                 Plaintiff, Appellee,

                                          v.

              MICHAEL MALONEY & MICHAEL FAIR, DEPARTMENT OF CORRECTIONS,

                               Defendants, Appellants.

____________________

ERRATA SHEET

            The opinion of this  Court issued on November 1, 1993, is  amended
        as follows:

            Page 9:  Line 20 - Delete the words, "as there is no dispute,".

November 1, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1297 

                                   MARVIN M. SMITH,

                                 Plaintiff, Appellee,

                                          v.

              MICHAEL MALONEY & MICHAEL FAIR, DEPARTMENT OF CORRECTIONS,

                               Defendants, Appellants.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

Marvin M. Smith on brief pro se.
            _______________

            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
            ____________________
        Herbert   C.  Hanson,   Senior  Litigation   Counsel,  Department   of
        ____________________
        Correction, on brief for appellants.

____________________

____________________

Per Curiam.  In this  appeal we are asked to decide
                      __________

            whether the defendants are,  as a matter of law, entitled  to

            invoke  the  defense  of  qualified  immunity   in  resisting

            plaintiff's pro se  action under 42 U.S.C.    1983.  Mitchell
                        ___ __                                   ________

            v. Forsyth, 472  U.S. 511, 530 (1985).  We  conclude that the
               _______

            district court correctly decided that the contours of the law

            were well known at the time about  which plaintiff complains,

            and therefore affirm.

                                          I.
                                          _

                      Plaintiff   Marvin   M.  Smith,   a   Massachusetts

            prisoner, sued  the defendants, state  prison officials,  for

            taking two years to forward his legal materials after Smith's

            transfer from state  to federal custody on  February 5, 1986.

            At  the time  of  the transfer,  plaintiff was  attempting to

            pursue post-conviction relief from  his state conviction, and

            had  several civil  actions pending.   On  March 1,  1986, he

            wrote to the state  prison property office inquiring when  he

            could expect  to receive his  personal property, particularly

            his legal materials, asserting that the delay was threatening

            court deadlines.   When no  response came by March  18, 1986,

            plaintiff wrote to defendant Maloney, then the Superintendent

            of the  state prison,  about the  forwarding of  his personal

            property.  The  letter reiterated plaintiff's lack  of access

            to  his  legal  documents,  and  again  warned  that  it  was

            impossible to  meet pressing  court dates  because his  legal

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materials were being held at the state prison.  On March  19,

            plaintiff wrote a similar letter  to defendant Fair, the then

            Commissioner of  the Massachusetts  Department of  Correction

            ("DOC").

                      Defendant Maloney's April  1, 1986 response  to the

            March 18 letter advised that "your property must be picked up

            by  your family."   Plaintiff's letter to  defendant Fair was

            referred to Pires, a DOC grievance coordinator, who, on April

            24, 1986, informed  plaintiff that he  would check into  "the

            problem with  your property."   In a  May 13, 1986  letter to

            Pires,  plaintiff complained,  inter alia,  that  he had  not
                                           _____ ____

            received his legal property or legal mail since the transfer,

            and  that federal prison  administrators would not  allow his

            family to send his legal  property.1  Pires did not reply  to

            that  letter.    However,  on  June 9,  1986,  a  DOC  Deputy

            Commissioner approved a Pires' memorandum outlining defendant

            Maloney's  agreement that his facility would assume any costs

            in  forwarding property of inmates transferred to the federal

            prison  system, and would  also "ensure that  all permissible

            property is forwarded."

____________________

            1.  Plaintiff also  relies on  103 C.M.R.    403.16(2)  which
            states in relevant part:  "Whenever an inmate  is transferred
            to  another correctional  institution  all personal  property
            approved  for retention at the receiving institution shall be
            transferred  along with  him/her or  as  soon as  practicable
            thereafter."

                                         -5-

In  July 1987, plaintiff still had not yet received

            his legal  property and filed  this   1983 suit  against Fair

            and Maloney in their individual and official capacities.  The

            complaint  alleged that because the federal prison system was

            not  equipped to assist him with pending Massachusetts cases,

            the continuing refusal  to forward his  legal property was  a

            deprivation of property without due  process and a denial  of

            meaningful access to the courts.   On March 15, 1988, twenty-

            five   months   after  the   transfer  to   federal  custody,

            plaintiff's legal  materials  were forwarded  to the  federal

            authorities.     Defendant   Maloney's  accompanying   letter

            acknowledged plaintiff's federal  lawsuit seeking the  return

            of his legal property, and  characterized the delay as caused

            by  "administrative miscommunication at  our end."   In 1989,

            plaintiff was returned to the state prison system.

                      In  1990  defendants'  initial motion  for  summary

            judgment on the  due process and access to  the courts claims

            was  denied;  an  accompanying  claim  of  inadequate federal

            prison library facilities  was declared moot  since plaintiff

            was  no longer  in  federal custody.    In 1992,  defendants'

            renewed motion for summary judgment on, inter alia, qualified
                                                    _____ ____

            immunity  grounds was  denied, and  the case  was ordered  to

            proceed to  trial.  Our  review on this  interlocutory appeal

            from the denial  of a qualified immunity defense  is de novo,

            and  following the usual  summary judgment commands,  we view

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all  facts and  reasonable inferences  from  the record  as a

            whole in  plaintiff's favor.2   Cookish  v. Powell,  945 F.2d
                                            _______     ______

            441, 443 (1st Cir. 1991).

                                         II.
                                         __

                      Plaintiff's  complaint  alleges,   with  sufficient

            particularity,  a  claim for  which  relief under     1983 is

            available:  the right to  meaningful and effective access  to

            the courts.   Bounds v.  Smith, 430 U.S. 817,  822-24 (1977).
                          ______     _____

            We  have  held  that allegations  of  intentional  refusal to

            return  an inmate's legal  materials state a  cause of action

            under   1983.   Simmons v. Dickhaut,  804 F.2d 182, 184  (1st
                            _______    ________

            Cir.  1986).   In  determining  whether  the  defendants  are

            entitled to the  protection of qualified immunity  from suit,

            the  inquiry is essentially objective:  whether a "reasonable

            [official]  could  have  believed  [the  failure  to  forward

            plaintiff's legal materials for two  years] to be lawful,  in

            light  of clearly  established law  and  the information  the

            [prison officials]  possessed."  Anderson  v. Creighton,  483
                                             ________     _________

            U.S. 635, 641 (1987).   Plaintiff bears the initial burden to

            show that  the legal rules  regarding the right of  access at

____________________

            2.  We note that plaintiff's motion for leave to file a first
            amended  verified complaint,  proffered  before the  district
            court  acted  upon  defendants'  renewed  motion  for summary
            judgment, was denied  after this appeal  was noticed.   While
            defendants argue  that  the  amended  verified  complaint  is
            outside  the  record  on  appeal, since  plaintiff  expressly
            included it as part of his opposition to summary judgment, it
            is  properly before  us.   See Sheinkopf  v. Stone,  927 F.2d
                                       ___ _________     _____
            1259, 1262 (1st Cir. 1991).

                                         -7-

issue  here were  sufficiently  clear  before the  defendants

            acted or, in this case, failed to act.  Davis v. Scherer, 468
                                                    _____    _______

            U.S. 183,  197 (1984).   Once that  threshold is  passed, the

            defendants' conduct is compared to what a reasonable official

            would understand  was legally  required  during the  relevant

            period, from February 1986 through  March 1988.  To that end,

            a "court should  ask whether the [officers]  acted reasonably

            under settled law  in the circumstances, not  whether another

            reasonable, or more reasonable, interpretation  of the events

            can be constructed  [subsequently] . . . .  Hunter v. Bryant,
                                                        ______    ______

            112 S. Ct. 534,  537 (1991); see also Frazier v.  Bailey, 957
                                         ___ ____ _______     ______

            F.2d 920, 929  (1st Cir. 1992); Cinelli v.  Cutillo, 896 F.2d
                                            _______     _______

            650, 654 (1st Cir.  1990).  If the particular access right at

            issue here was clearly established at the time of the alleged

            deprivation, it can  be "presume[d] that the  defendant knew,

            or should have  known that his conduct was  beyond the pale."

            Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992).
            __________    _______

                                         III.
                                         ___

                      Applying this  standard, we have  little difficulty

            concluding  that   plaintiff  has  satisfied  the  burden  to

            demonstrate  that the  access  right  at  issue  was  clearly

            established  during   the  relevant  period.     In  opposing

            defendants' request for  summary judgment based on  qualified

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immunity,3 plaintiff  sufficiently identified a  "universe of

            authority" relevant to his access  claim.  Elder v. Holloway,
                                                       _____    ________

            975 F.2d  1388, 1393 (9th  Cir. 1991), cert. granted,  113 S.
                                                   _____ _______

            Ct. 3033 (1993).  We have not required a plaintiff opposing a

            qualified immunity defense to cite cases in which the precise

            conduct at issue had been  found unlawful.  Germany v. Vance,
                                                        _______    _____

            868 F.2d 9, 16 (1st Cir. 1989).  "It is enough,  rather, that

            there existed case  law sufficient to clearly  establish that

            if a  court were presented  with such a situation,  the court
                        ____

            would find that  plaintiff's rights were violated."   Hall v.
                                                                  ____

            Ochs, 817 F.2d 920, 925 (1st Cir. 1987).
            ____

                      By  1986, "[m]any  courts [had]  found  a cause  of

            action for violation  of the right of  access . . .  where it

            was  alleged   that  prison   officials  confiscated   and/or

            destroyed  legal  materials."    Simmons,  804  F.2d  at  183
                                             _______

            (collecting  cases).  See  also Bonner v.  Coughlin, 517 F.2d
                                  ___  ____ ______     ________

            1311,  1320 (7th  Cir. 1975)  (pre-Bounds  case assumes  that
                                               ______

            intentional taking  of prisoner legal  materials resulting in

            access   interference  may  violate  due  process);  Ruiz  v.
                                                                 ____

____________________

            3.  In an accompanying affidavit,  plaintiff averred that  he
            had four  lawsuits pending at  the time of his  February 1986
            transfer  to federal custody.   Court documents,  attached as
            exhibits, show that  two of these cases  were later dismissed
            for  lack of  prosecution,  a  direct consequence,  plaintiff
            maintains, of the two-year deprivation of his legal materials
            which included trial transcripts, pleadings, legal documents,
            research  materials and  exhibits.    For  the  same  reason,
            plaintiff attests that he could not effectively prosecute the
            two other pending actions.

                                         -9-

Estelle, 679 F.2d  1115, 1153 (5th Cir. 1982)  (access to the
            _______

            courts includes right to access to those "accessories without

            which  legal claims cannot  be effectively  asserted"), cert.
                                                                    _____

            denied, 460 U.S. 1042 (1983); Morello v. James, 810 F.2d 344,
            ______                        _______    _____

            346 (2d Cir. 1987) (complaint of official taking, in 1983, of

            pro  se  legal materials  and  work product  stated  a Bounds
            ___  __                                                ______

            claim); Green v. Johnson, 977  F.2d 1383, 1389-90 (10th  Cir.
                    _____    _______

            1992) (pre-1985 seizure of pro se legal materials followed by
                                       ___ __

            dismissal of several of inmate's lawsuits stated a cognizable

            denial of  access claim).   And, in  Germany, where  a social
                                                 _______

            worker's failure to disclose important information was  found

            to preclude qualified immunity, we concluded:  "In 1980,  the

            contours  of  the   right  of  access  to   the  courts  were

            sufficiently  clear  so  that  a  reasonable  official  would

            understand   that  the  right   would  be  violated   by  the

            intentional   or   recklessly  indifferent   withholding   of

            potentially  exculpatory  information   from  an  adjudicated

            delinquent or from  the court itself."  Germany,  868 F.2d at
                                                    _______

            16.

                      Thus, although we have not addressed the particular

            question  whether  state  prison  officials'  intentional  or

            deliberately   indifferent  withholding   of  a   transferred

            inmate's  legal materials implicates a Bounds right, in light
                                                   ______

            of  the  state of  the  relevant  law  in February  1986,  we

            conclude   that  the   unlawfulness   of  such   conduct  was

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sufficiently established  at that  time and  would have  been

            apparent to a reasonable official.  See Patterson v. Mintzes,
                                                ___ _________    _______

            717 F.2d 284, 288 (6th Cir. 1983) (unrebutted allegations  of

            delay  in   forwarding  transferred  inmate's   legal  papers

            constitute  cognizable    1983 claim);  see  also Crisafi  v.
                                                    ___  ____ _______

            Holland, 655 F.2d  1305, 1309-10 (D.C. Cir. 1981).  Moreover,
            _______

            plaintiff's letters  would have  alerted a  reasonable prison

            official  that some  action  needed to  be  taken to  protect

            plaintiff's access rights.  See Nelson  v. Overberg, 999 F.2d
                                        ___ ______     ________

            162, 166 (6th Cir. 1993).

                                         IV.
                                         __

                      Defendants have posited no governmental interest or

            penological  objective  justifying  the delayed  transfer  of

            plaintiff's legal materials.  Turner v. Safley, 482  U.S. 78,
                                          ______    ______

            89 (1987).  Defendants' arguments here that their conduct was

            at most negligent or that they were minimally involved in the

            claimed  violations  are   not  properly  before  us:     the

            subjective  beliefs or motives  of a government  official are

            simply   irrelevant  to   the  qualified   immunity  inquiry.

            Anderson, 483 U.S. at 641;  Buenrostro, 973 F.2d at 42; Floyd
            ________                    __________                  _____

            v. Farrell, 765 F.2d 1, 4-5 (1st Cir. 1985); see also Coffman
               _______                                   ___ ____ _______

            v. Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989) ("In deciding
               _______

            [the qualified  immunity] issue,  a court  must consider  the

            information upon which  the official acted, although  this is

            not to be confused with a review of the official's subjective

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intent."), cert. denied, 494 U.S. 1056 (1990).  Consequently,
                       _____ ______

            the  district court correctly decided that defendants are not

            entitled to qualified  immunity on plaintiff's access  to the

            courts claim.

                      Affirmed.
                      ________

                      Appellee's request for double costs is denied.
                                                             ______

                      Appellants' motion to strike first amended verified

            complaint from appellee's supplemental appendix is denied.
                                                               ______

                      Appellee's  cross-motion  to   strike  portions  of

            appellants' reply brief is denied.
                                       ______

                      Appellants'  motion to  amend  argument heading  in

            brief is allowed.
                     _______

                      Appellee's  motion to  supplement appendix  and for

            sanctions is denied.
                         ______

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