Street v. Vose

• Court: Court of Appeals for the First Circuit
• Decided: May 12, 1993
• Docket: 92-1823
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1823 

                                  RICHARD A. STREET,

                                Plaintiff, Appellant,

                                          v.

                 GEORGE A. VOSE, COMMISSIONER OF CORRECTION, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            R. A. Street on brief pro se.
            ____________
            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
            ____________________
        Michael H.  Cohen,  Counsel, Department  of Correction,  on brief  for
        _________________
        appellees.

____________________

                                     May 12, 1993
                                 ____________________

Per Curiam.   In  a prior appeal  in this  case, we
                      __________

            vacated  the dismissal of appellant's complaint under Fed. R.

            Civ. P. 12(b)(6) because it had entered without providing the

            plaintiff with notice and an  opportunity to oppose or amend.

            Street  v. Vose,  No. 90-1415,  slip  op. (1st  Cir. Mar.  6,
            ______     ____

            1991).  This  appeal challenges the entry of summary judgment

            in favor of the defendants.  We affirm.

                                          I
                                          I
                                          _

                      The appellant, a Massachusetts inmate, sued various

            correction  officials and  officers under  42  U.S.C.    1983

            alleging that he was denied constitutionally adequate  access

            to the courts  while confined in the segregation  unit of the

            Massachusetts  Correctional  Institution  at  Cedar  Junction

            (MCI-CJ).1   After remand,  the defendants moved  to dismiss,

            or,  in the alternative,  for summary judgment.   Appellant's

            opposition,  like  the defendants'  motion, was  supported by

            documentary evidence, and the district court properly treated

            the motion as one for summary judgment.

                      Plaintiff's  chief   contention  is  that   he  was

            repeatedly denied  access to  the separate satellite  library

            provided  for segregated inmates, and access to other library

____________________

            1.  The appellant was  housed in this unit  for approximately
            six  months   on  "awaiting   action"  status   before  being
            officially   classified  to   the  unit  in   December  1989.
            Plaintiff's allegations cover the entire period, and although
            both parties make much of the import of these distinctions in
            status, for purposes  of this discussion, we do  not find the
            differences of any material relevance.

                                         -2-

materials from the prison's main library, in violation of the

            First and  Fourteenth Amendments  as well as  the terms  of a

            Stipulation  of  Dismissal  (Stipulation)  in  another  case,

            Cepulonis v.  Fair, No. 78-3233-Z  (D. Mass. Jun.  24, 1987).
            _________     ____

            The  Stipulation set  forth, inter alia,  detailed procedures
                                         _____ ____

            regarding segregated  inmates' use  of the satellite  library

            and  legal materials at  MCI-CJ.2   On appeal,  appellant has

            not pursued any  argument with respect to his  third cause of

            action, which appears to assert state-created rights arguably

            inherent in the Stipulation, and, accordingly, that issue has

            been waived.

____________________

            2.  As to specific  claims that fall within the  scope of the
            Stipulation, Street alleges that: between December 1988, when
            he was formally classified to the segregation unit, and March
            1990, he filed 51 requests  to use the satellite law library,
            but was given  timely access only 10 times  and otherwise had
            to wait up to two weeks before being given access; routinely,
            no  justification or reason was given as to why timely access
            could not be provided; requests were not collected daily,  as
            required;  some   written  requests   were  refused  or   not
            processed;   volumes and  equipment in  the library  were not
            maintained,  and   the  library   facility  and   hours  were
            insufficient  partly  because  other  inmates  who  were  not
            classified  to the segregation  unit, but were  housed there,
            were  allowed  to   use  the  satellite  law   library,  thus
            effectively  denying access to  those for whom  the satellite
            library was  intended.   Street  also  contends that  of  ten
            requests for materials from the main library, three were  not
            processed, and, as to the  rest, only a small portion  of the
            requested materials were received.  Of two requests for legal
            assistance, one was granted  late, and the other  was denied.
            Finally,  copying requests  were denied, and  necessary books
            were   unavailable.    There  are  other  claims  beyond  the
            Stipulation:  that his  legal  papers  were  "ransacked"  and
            stolen, and that favored inmates  are allowed frequent use of
            the satellite library. 

                                         -3-

II
                                          II
                                          __

                      As  we  observed   in  our  prior  ruling,   it  is

            undisputed  that   inmates  seeking   release  or   otherwise

            contesting the  constitutionality of the  conditions of their

            confinement possess a right of access to the courts, that is,

            the right to  "adequate law libraries or  adequate assistance

            from persons  trained in the law."  Bounds v. Smith, 430 U.S.
                                                ______    _____

            817, 821, 827-28 (1977) (upholding state access-to-the-courts

            plan  under which,  inter  alia,  inmates  not  facing  court
                                _____  ____

            deadlines might  have a  month's wait for  a library  visit).

            However, such  access is subject  to reasonable restrictions:

            meaningful access  means no  more  than that  the state  must

            assure an indigent inmate "an adequate opportunity to present

            his claims fairly."  Id. at 823 (quoting Ross v. Moffitt, 417
                                 ___                 ____    _______

            U.S. 600, 615-16 (1974)).  The relevant inquiry is whether an

            inmate has been  afforded "a reasonably adequate  opportunity

            to  present claimed violations  of fundamental rights  to the

            courts."  Id. at 825 (emphasis added).  
            ______    ___

                      Moreover, virtually all circuit courts have read an

            injury  element into less than total access-denial claims and

            required prisoners to  shoulder an initial burden  of showing

            that  the deprivation caused  some quantum of  prejudice with

            respect to pending or contemplated litigation.  See Strickler
                                                            ___ _________

            v. Waters, ___ F.2d ___, ___ &  n.10, 1993 WL 86457, *4, *11,
               ______

            No. 92-6147 (4th Cir. Mar.  26, 1993) (collecting cases).  We

-4-

held  as much in  Sowell v. Vose,  941 F.2d 32,  35 (1st Cir.
                              ______    ____

            1991): Where a  prisoner has not been  denied complete access

            to legal  materials, but  alleges only  restrictions on  such

            access,  "actual injury  [is]  a prerequisite  to  recovery."

            Thus,  unless the deprivation clearly amounts to an absolute,

            inherently prejudicial restriction on access (clearly not the

            case here), in order to defeat a motion for summary judgment,

            "actual injury", i.e., an adverse effect on litigation caused

            by the challenged conduct must be sufficiently alleged by the

            plaintiff.  See  id. at 34-35; see also Shango v. Jurich, 965
                        ___  ___           ___ ____ ______    ______

            F.2d 289,  292 (7th Cir.  1992); Crawford-El v.  Britton, 951
                                             ___________     _______

            F.2d 1314, 1321 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 62
                                              _____ ______

            (1992).  To that end,  an affidavit opposing summary judgment

            must demonstrate with specifics, and not speculation, how the

            challenged conduct caused  legal harm.   Sowell, 941 F.2d  at
                                                     ______

            35-36.

                                         III
                                         III
                                         ___

                      Sowell was decided  after our prior ruling  in this
                      ______

            case and  before  defendants'  summary  judgment  motion  was

            filed.     In  its   accompanying  memoranda,  however,   the

            defendants  pointed  out,  citing  Sowell,  that  plaintiff's
                                               ______

            complaint  had failed  to allege  that any  of the  purported

            restrictions  had prejudiced  him in  his  ability to  pursue

            this, or any other, lawsuit.  The motion was supported by the

            affidavit of  MCI-CJ Superintendent Duval  who attested that,

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since being  housed in  the segregation  unit, the  plaintiff

            "has used, and continues to  use the satellite law library." 

Plaintiff's  memorandum in  opposition stated  that

            his failure to allege actual prejudice was due to his lack of

            legal training and the defendants' restriction on access.  He

            contended that prejudice was demonstrated by the dismissal of

            another  named  action  in February  1990.3    Alternatively,

            plaintiff  argued  that  he  did  not  need  to  show  actual

            prejudice  because   the  Cepulonis   Stipulation  controlled
                                      _________

            access-denial claims  by segregation unit  inmates at  MCI-CJ

            and  expressly  reserved to  inmates  the right  to  bring an

            action for damages.   Supporting plaintiff's memorandum  were

            the Stipulation and the affidavits of the plaintiff and seven

            other segregation  unit inmates each attesting,  in identical

            fashion, to numerous violations of the Stipulation.4

                      These  profferings   by  the   plaintiff  fail   to

            demonstrate a genuine issue as to  actual injury.  Appellant,

            who is  an experienced pro  se litigator, does not  claim any
                                   ___  __

____________________

            3.  However, when the  opposition was  filed, plaintiff  knew
            that that dismissal had been  vacated and the case  remanded.
            Street v. Maloney,  No. 90-1280, slip op. (1st  Cir. Dec. 29,
            ______    _______
            1990). 

            4.  Included  were: routine delays  of 4-8 days  in receiving
            access  to the satellite library; missing  books and torn and
            missing pages in  many volumes;  out-of-date supplements  and
            pocket parts; delays of several weeks in receiving books from
            the  main library; typewriter  and copier  frequently broken;
            lack of paper and other supplies.

                                         -6-

delay or interruption  in this or any other  pending case; he

            cites no court-imposed deadlines that  he has missed, or that

            he has been unable  to pursue any legal claim as  a result of

            any of  the alleged  deprivations.  See  Shango, 965  F.2d at
                                                ___  ______

            293.   At  most, he  has  described some  delay in  receiving

            access  to library materials.  Such temporary restrictions on

            access, bereft  of indications of adverse  legal consequence,

            do not implicate a Bounds right.  Chandler v. Baird, 926 F.2d
                               ______         ________    _____

            1057,   1063  (11th  Cir.  1991).    Further,  appellant  has

            presented  well-drafted pleadings to  this court, as  well as

            the  district court, demonstrating  that he has  retained the

            ability to "participate  meaningfully in the  legal process."

            Sowell, 941 F.2d at 35.  While it is true that  the plaintiff
            ______

            did point to one adverse  judgment, it was later vacated, see
                                                                      ___

            ante  n.3, and we can find nothing in the record indicating a
            ____

            prejudicial "causal relationship"  between that dismissal, or

            any  of the  alleged deprivations,  for that matter,  and the

            conduct of the  defendants.  Id.;  see also Crawford-El,  951
                                         ___   ___ ____ ___________

            F.2d at 1321; Chandler, 926 F.2d at 1062.5 
                          ________

                                          IV
                                          IV
                                          __

                      The  Stipulation  itself,  however,  does  not,  as

            appellant  appears to contend, afford an independent basis of

____________________

            5.  Because  we decide that the plaintiff  has failed to meet
            the initial burden to show prejudice, we need not address the
            degree to which any restrictions on access to legal materials
            are related to  legitimate penological interests.   Turner v.
                                                                ______
            Safley, 482 U.S. 78, 89 (1987).
            ______

                                         -7-

relief from asserted violations of the right of access to the

            courts.  See  Green v. McKaskle, 788 F.2d  1116, 1122-23 (5th
                     ___  _____    ________

            Cir. 1986).  The Cepulonis litigation that ultimately spawned
                             _________

            the Stipulation at issue here was a class action initiated by

            segregation  unit  inmates at  MCI-CJ  (then MCI-Walpole)  to

            vindicate Bounds rights.  See  Cepulonis v. Fair, 732 F.2d 1,
                      ______          ___  _________    ____

            2 (1st Cir. 1984).  And while the Stipulation states that its

            procedures provide "adequate  access to the courts,"  we have

            not  had  occasion  to  decide  whether   the  terms  of  the

            Stipulation  are  constitutionally  required,  and  offer  no

            opinion in that regard. Even  assuming that the provisions of

            the Stipulation were  intended to meet  no more than  minimal

            constitutional  requirements   regarding  segregated   inmate

            access  to the  courts,  we  would still  find  the grant  of

            summary  judgment  to  the defendants  proper:  The  evidence

            offered by  the plaintiff  concerning any  violations of  the

            Stipulation  suffers from the same infirmity described in our

            discussion  above  -  -  -  the   failure  to  demonstrate  a

            sufficient quantum of prejudice to permit the case to proceed

            further.6

____________________

            6.  To the extent that the plaintiff simply seeks to  enforce
            the  Stipulation, he  may not  do so  directly under    1983.
            DeGidio v.  Pung, 920 F.2d  525, 534 (8th Cir.  1990); Green,
            _______     ____                                       _____
            788 F.2d  at 1123; cf. Welch  v. Spangler, 939 F.2d  570, 572
                               ___ _____     ________
            n.2  (8th Cir. 1991) (district court proceeding included both
               1983  and contempt  actions).    The  district court  that
            approved   the  Cepulonis   Stipulation  inherently   retains
                            _________
            jurisdiction to  enforce its  own consent  decree, see  In re
                                                               ___  _____
            Donald Pearson, ___ F.2d ___, ___  No. 92-2158, slip op. at 9
            ______________

                                         -8-

Thus,  because  the  record  presents  no  material

            factual  dispute  that  the appellant,  while  housed  in the

            segregation unit  during the  times in  question, was  denied

            meaningful access to  the courts, the defendants'  motion for

            summary judgment was properly granted.

                                          V
                                          V
                                          _

                      We also find no abuse  of discretion in the  denial

            of the plaintiff's  motion for the district  judge's recusal.

            Merely issuing unfavorable  rulings, Lisa v. Fournier  Marine
                                                 ____    ________________

            Corp., 866 F.2d  530, 532 (1st Cir.), cert.  denied, 493 U.S.
            _____                                 _____  ______

            819 (1989), or taking other judicial action during the course

            of  proceedings cannot form  the basis of  a disqualification

            claim absent  a showing  of personal  bias, United  States v.
                                                        ______________

            Chantal, 902  F.2d 1018,  1022-23 & n.9  (1st Cir.  1990), an
            _______

            assertion not made here.  Nor was district court's refusal to

            grant a default  judgment in favor of the  plaintiff an abuse

            of discretion.  See Gulley v. Orr, 905 F.2d  1383, 1386 (10th
                            ___ ______    ___

            Cir. 1990) (absent a showing  of prejudice, there is a strong

            preference  for  a  disposition on  the  merits);  Richman v.
                                                               _______

            General  Motors Corp.,  437 F.2d  196, 199  (1st Cir.  1977).
            _____________________

            Finally,  appellant complains that  he was excluded  from two

            status  conferences.   While such  ex  parte proceedings  are
                                               __  _____

____________________

            (1st Cir. Mar. 16, 1993), and parties with standing to  do so
            may  seek  compliance in  that  court.   See,  e.g., Consumer
                                                     ___   ____  ________
            Advisory Bd. v. Glover, ___ F.2d ____, ___, No. 92-1550, slip
            ____________    ______
            op. at 3-4 (1st Cir, Mar. 31, 1993).

                                         -9-

disfavored, see Oses v. Massachusetts, 961 F.2d 985, 986 (1st
                        ___ ____    _____________

            Cir.  1992); In re Donald Pearson, ___  F.2d ___, ___ No. 92-
                         ____________________

            2158, slip op. at  16 (1st Cir. Mar. 16, 1993),  the ex parte
                                                                 __ _____

            contacts here caused  no perceivable harm.  See  id. slip op.
                                                        ___  ___

            at 17; Grieco v. Meachum, 533 F.2d 713, 719 (1st Cir.), cert.
                   ______    _______                                _____

            denied, 429 U.S. 858 (1976).
            ______

                      The judgment of the district court is affirmed.
                                                            ________

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