Lewis v. Casey (94-1511), 516 U.S. 804 (1996)
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[ Stevens ]
[ Scalia ]
[ Souter ]
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No. 94-1511


on writ of certiorari to the united states court of appeals for the ninth circuit

[June 24, 1996]

Justice Stevens , dissenting.

Within the residuum of liberty retained by prisoners are freedoms identified in the First Amendment to the Constitution: freedom to worship according to the dictates of their own conscience, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Cruz, 405 U. S., at 321, freedom to communicate with the outside world, e.g., Thornburgh v. Abbott, 490 U.S. 401, 411-412 (1989), and the freedom to petition their government fora redress of grievances, e.g., Johnson v. Avery, 393 U.S. 483, 485 (1969). While the exercise of these freedoms may of course be regulated and constrained by their custodians, they may not be obliterated either actively or passively. Indeed, our cases make it clear that the States must take certain affirmative steps to protect some of the essential aspects of liberty that might not otherwise survive in the controlled prison environment.

The "well established" right of access to the courts, ante, at 6, is one of these aspects of liberty that States must affirmatively protect. Where States provide for appellate review of criminal convictions, for example, they have an affirmative duty to make transcripts available to indigent prisoners free of charge. Griffin v. Illinois, 351 U.S. 12, 19-20 (1956) (requiring States to waive transcript fees for indigent inmates); see also Burns v. Ohio, 360 U.S. 252, 257-258 (1959) (requiring States to waive filing fees for indigent prisoners). It also protects an inmate's right to file complaints, whether meritorious or not, see Ex parte Hull, 312 U.S. 546 (1941) (affirming right to file habeas petitions even if prison officials deem them meritless, in case in which petition at issue was meritless), and an inmate's right to have access to fellow inmates who are able to assist an inmate in preparing, "with reasonable adequacy," such complaints. Johnson, 393 U. S., at 489; Wolff v. McDonnell, 418 U.S. 539, 580 (1974). [n.1] And for almost two decades, it has explicitly included the right of prisoners to have access to "adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828 (1977). As the Court points out, States are free to "experiment" with the types of legal assistance that they provide to inmates, ante, at 7--as long as the experiment provides adequate access.

The constitutional violations alleged in this case are similar to those that the District Court previously found in one of Arizona's nine prisons. See Gluth v. Kangas, 773 F. Supp. 1309 (Ariz. 1988), aff'd, 951 F. 2d 1504 (CA9 1991). The complaint in this case was filed in 1990 by 22 prisoners on behalf of a class including all inmates in the Arizona prison system. The prisoners alleged that the State's institutions provided inadequate access to legal materials or other assistance, App. 31-33, and that as a result, "[p]risoners are harmed by the denial of meaningful access to the courts." Id., at 32. The District Court agreed, concluding that the State had failed, throughout its prison system, to provide adequate access to legal materials, particularly for those in administrative segregation, or "lockdown," and that the State had failed to provide adequate legal assistance to illiterate and non English speaking inmates. After giving all the parties an opportunity to participate in the process of drafting the remedy, the court entered a detailed (and I agree excessively so, see infra, at 6) order to correct the State's violations.

As I understand the record, the State has not argued that the right of effective access to the courts, as articulated in Bounds, should be limited in any way. It has not challenged the standing of the named plaintiffs to represent the class, nor has it questioned the propriety of the District Court's order allowing the case to proceed as a class action. I am also unaware of any objection having been made in the District Court to the plaintiffs' constitutional standing in this case, and the State appears to have conceded standing with respect to most claims in the Court of Appeals. [n.2] Yet the majority chooses to address these issues unnecessarily and, in some instances, incorrectly.

For example, although injury in fact certainly is a jurisdictional issue into which we inquire absent objection from the parties, even the majority finds on the record that at least two of the plaintiffs had standing in this case, ante, at 11, [n.3] which should be sufficient to satisfy any constitutional concerns. [n.4] Yet the Court spends 10 pages disagreeing.

Even if we had reason to delve into standing requirements in this case, the Court's view of those requirements is excessively strict. I think it perfectly clear that the prisoners had standing, even absent the specific examples of failed complaints. There is a constitutional right to effective access, and if a prisoner alleges that he personally has been denied that right, he has standing to sue. [n.5] One of our first cases to address directly the right of access to the courts illustrates this principle particularly well. In Ex parte Hull, we reviewed the constitutionality of a state prison's rule that impeded an inmate's access to the courts. The rule authorized corrections officers to intercept mail addressed to a court and refer it to the legal investigator for the parole board to determine whether there was sufficient merit in the claim to justify its submission to a court. Meritless claims were simply not delivered. Petitioner Hull succeeded in smuggling papers to his father, who in turn delivered them to this Court. Although we held that the smuggled petition had insufficient merit even to require an answer from the State, 312 U. S., at 551, we nevertheless held that the regulation was invalid for the simple and sufficient reason that "the state and its officers may not abridge or impair petitioner's right to apply to a federal court for writ of habeas corpus." Id., at 549.

At first glance, the novel approach adopted by the Court today suggests that only those prisoners who have been refused the opportunity to file claims later found to have arguable merit should be able to challenge a rule as clearly unconstitutional as the one addressed in Hull. Perhaps the standard is somewhat lower than it appears in the first instance; using Hull as an example, the Court suggests that even facially meritless petitions can provide a sufficient basis for standing. See ante, at 7, n. 2. Nonetheless, because prisoners are uniquely subject to the control of the State, and because unconstitutional restrictions on the right of access to the courts--whether through nearly absolute bars like that in Hull or through inadequate legal resources--frustrate the ability of prisoners to identify, articulate, and present to courts injuries flowing from that control, I believe that any prisoner who claims to be impeded by such barriers has alleged constitutionally sufficient injury in fact.

My disagreement with the Court is not complete: I am persuaded--as respondents' counsel essentially has conceded--that the relief ordered by the District Court was broader than necessary to redress the constitutional violations identified in the District Court's findings. I therefore agree that the case should be remanded. I cannot agree, however, with the Court's decision to use the case as an opportunity to meander through the laws of standing and access to the courts, expanding standing requirements here and limiting rights there, [n.6] when the most obvious concern in the case is with the simple disjunct between the limited scope of the injuries articulated in the District Court's findings and the remedy it ordered as a result. Because most or all of petitioner's concerns regarding the order could be addressed with a simple remand, I see no need to resolve the other constitutional issues that the Court reaches out to address.

The Court is well aware that much of its discussion preceding Part III is unnecessary to the decision. Reflecting on its view that the District Court railroaded the State into accepting its order lock, stock, and barrel, the Court concludes on the last page of its decision that "[t]he State was entitled to far more than an opportunity for rebuttal, and on that ground alone this order would have to be set aside." Ante, at 19. To the extent that the majority suggests that the order in this case is flawed because of a breakdown in the process of court supervised negotiation that should generally precede systemic relief, I agree with it. I also agree that the failure in that process "alone" would justify a remand in this case. I emphatically disagree, however, with the Court's characterization of who is most to blame for the objectionable character of the final order. Much of the blame for its breadth, I propose, can be placed squarely in the lap of the State.

A fair evaluation of the procedures followed in this case must begin with a reference to Gluth, the earlier case in which the same District Judge found petitioners guilty of a systemic constitutional violation in one facility. In that case the District Court expressly found that the state officials had demonstrated "a callous unwillingness to face the issues" and had pursued "diversion[ary] tactics" that "forced [the court] to take extraordinary measures." Gluth, 773 F. Supp., at 1312, 1314. Despite the Court's request that they propose an appropriate remedy, the officials refused to do so. It is apparent that these defense tactics played an important role in the court's decision to appoint a special master to assist in the fashioning of the remedy that was ordered in Gluth. Only after that order had been affirmed by the Court of Appeals did respondents commence this action seeking to obtain similar relief for the entire inmate population.

After a trial that lasted for 11 days over the course of two months, the District Court found that several of petitioners' policies denied illiterate and non English speaking prisoners meaningful access to the courts. Given the precedent established in Gluth, the express approval of that plan by the Court of Appeals, and the District Court's evaluation of the State's conclusions regarding the likelihood of voluntary remedial schemes, particularly in view of the State's unwillingness to play a constructive role in the remedy stage of that case, the District Court not unreasonably entered an order appointing the same special master and directing him to propose a similar remedy in this case. Although the District Court instructed the parties to submit specific objections to the remedial template derived from Gluth, see App. to Pet. for Cert. 89a, nothing in the court's order prevented the State from submitting its own proposals without waiving its right to challenge the findings on the liability issues or its right to object to any remedial proposals by either the master or the respondents. The District Court also told the parties that it would consider settlement offers, and instructed the master to provide "such guidance and counsel as either of the parties may request to effect such a settlement." Id., at 95a.

In response to these invitations to participate in the remedial process, the State filed only four half hearted sets of written objections over the course of the six months during which the special master was evaluating the court's proposed order. See App. 218-221, 225-228, 231-238, and 239-240. Although the master rejected about half of these narrow objections, he accepted about an equal number, noting that the State's limited formal participation had been "important" and "very helpful." Proposed Order (Permanent Injunction) in No. CIV 90-0054 (D. Ariz.), p. iii. After the master released his proposed order, the State offered another round of objections. See App. 243-250. Although the District Court informed the master that the objections could be considered, they did not have to be; the court reasonably noted that the State had been aware for six months about the potential scope of the order, and that it could have mounted the same objections prior to the deadline that the court had set at the beginning of the process. Id., at 251-253.

One might have imagined that the State, faced with the potential of this "inordinately--indeed, wildly--intrusive" remedial scheme, ante, at 18, would have taken more care to protect its interests before the District Court and the special master, particularly given the express willingness of both to consider the State's objections. Having failed to zealously represent its interests in the District Court, the State's present complaints seem rather belated; the Court has generally been less than solicitous to claims that have not been adequately pressed below. Cf., e.g., McCleskey v. Zant, 499 U.S. 467, 488-489 (1991); compare ante, at 20, n. 8 (State made boilerplate reservation of rights in each set of objections), with cf. Gray v. Netherland, 518 U. S. ___, ___ (1996) (slip op., at 9-10) ("[I]t is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the `substance' of such a claim to a state court").

The State's lack of interest in representing its interests is clear not only from the sparse objections in the District Court, but from proceedings both here and in the Court of Appeals. In argument before both courts, counsel for the prisoners have conceded that certain aspects of the consent decree exceeded the necessary relief. See, e.g., 43 F. 3d 1261, 1271 (CA9 1994) (prisoners agree that typewriters are not required); Tr. of Oral Arg. 31 (provisions regarding noise in library are unnecessary). This flexibility further suggests that the State could have sought relief from aspects of the plan through negotiation. Indeed, at oral argument in the Ninth Circuit, the parties for both sides suggested that they were willing to settle the case, and the court deferred submission of the case for 30 days to enable a settlement. "However, before the settlement process had even begun, [the State] declined to mediate." 43 F. 3d, at 1265, n. 1. Notably, this is the only comment made by the appellate court regarding the process that led to the fashioning of the remedy in this case.

A fair reading of the record, therefore, reveals that the State had more than six months within which it could have initiated settlement discussions, presented more ambitious objections to the proposed decree reflecting the concerns it has raised before this Court, or offered up its own plan for the review of the plaintiffs and the special master. It took none of these steps. Instead, it settled for piecemeal and belated challenges to the scope of the proposed plan.

The Court implies that the District Court's decision to use the decree entered in Gluth as the starting point for fashioning the relief to be ordered was unfair to petitioners and should not be repeated in comparable circumstances. The browbeaten State, the Court suggests, was "entitled to far more than an opportunity for rebuttal." Ante, at 19. I strongly disagree with this characterization of the process. Whether this Court now approves or disapproves of the contents of the Gluth decree, the Court of Appeals had affirmed it in its entirety when this case was tried, and it was surely appropriate for the District Court to use it as a starting point for its remedial task in this case. Petitioners were represented by competent counsel who could have advanced their own proposals for relief if they had thought it expedient to do so. By going further than necessary to correct the excesses of the order, the Court's decision rewards the State for the uncooperative posture it has assumed throughout the long period of litigating both Gluth and this case. See ante, at 8-11; Gluth, 773 F. Supp., at 1312-1316. Although the State's approach has proven sound as a matter of tactics, allowing it to prevail in a forum that is not as inhibited by precedent as are other federal courts, the Court's decision undermines the authority and equitable powers of not only this District Court, but District Courts throughout the Nation. It is quite wrong, in my judgment, for this Court to suggest that the District Court denied the State a fair opportunity to be heard, and entirely unnecessary for it to dispose of the smorgasbord of constitutional issues that it consumes in Part II.

Accordingly, while I agree that a remand is appropriate, I cannot join the Court's opinion.


1 See also California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) ("The right of access to the courts is indeed but one aspect of the right of petition. See Johnson v. Avery, 393 U.S. 483, 485; Ex parte Hull, 312 U.S. 546, 549"); Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983) ("[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances"); id., at 743.

The right to claim a violation of a constitutional provision in a manner that will be recognized by the courts is also embedded in those rights recognized by the Constitution's text and our interpretations of it. Without the ability to access the courts and draw their attention to constitutionally improper behavior, all of us--prisoners and free citizens alike--would be deprived of the first--and often the only--"line of defense" against constitutional violations. Bounds v. Smith, 430 U.S. 817, 828 (1977); see Wolff v. McDonnell, 418 U.S. 539, 579 (1974) (recognition of constitutional rights "would be diluted if inmates, often `totally or functionally illiterate,' were unable to articulate their complaints to the courts"); cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (allowing plaintiff alleging violation of Fourth Amendment rights access to the courts through a cause of action directly under the Constitution).

2 See Opening Brief for Appellant in No. 93-17169 (CA9), pp. 29-30; Reply Brief for Defendant/Appellants in No. 93-17169 (CA9), p. 14, n. 20. The State directly questioned constitutional standing only with respect to two narrow classes of claims: the standard for indigency (a claim on which the State was successful below), and, in its reply brief, photocopying.

3 In all likelihood, the District Court's failure to articulate additional specific examples of missing claims was due more to the fact that the State did not challenge the constitutional standing of the prisoners in the District Court than to a lack of actual evidence relating to such lost claims. Now that the District Court and prisoners are on notice that standing is a matter of specific concern, it is free on remand to investigate the record or other evidence that the parties could make available regarding other claims that have been lost because of inadequate facilities.

4 If named class plaintiffs have standing, the standing of the class members is satisfied by the requirements for class certification. 1 H. Newberg & A. Conte, Newberg on Class Actions, §2.01, p. 2-3 (3rd ed. 1992); ante, at 3-5 (Souter, J., concurring in part, dissenting in part, and concurring in judgment). Because the State did not challenge that certification, it is rather late in the game to now give it the advantage of a conclusion that the class was improper (even if it is--although illiterate inmates, it seems to me, are not positioned much differently with respect to English language legal materials than are non English speaking prisoners).

5 Although a prisoner would lose on the merits if he alleged that the deprivation of that right occurred because the State, for example, did not provide him with access to on line computer databases, he would also certainly have "standing" to make his claim. The Court's argument to the contrary with respect to most of the prisoners in this case, it seems to me, is not as much an explication of the principles of standing, but the creation of a new rule requiring prisoners making Bounds claims to demonstrate prejudice flowing from the lack of access.

6 In addition to the Court's discussion of "standing," the opinion unnecessarily enters into discussion about at least two other aspects of the scope of the Bounds right. First, the Court concludes that the Bounds right does not extend to any claims beyond attacks on sentences and conditions of confinement. Ante, at 10. But given its subsequent finding that only two plaintiffs have met its newly conjured rule of standing, see ante, at 11, its conclusion regarding the scope of the right is purely dicta. Second, the Court argues that the Bounds right does not extend to the right to "discover" grievances, or to "litigate effectively" once in court. Ante, at 9-10 (emphasis omitted). This statement is also largely unnecessary given the Court's emphasis in Part III on the need for the District Court both to tailor its remedy to the constitutional violations it has discovered and the requirement that it remain respectful of the difficult job faced by state prison administrators.

Moreover, I note that the State has not asked for these limitations on Bounds. While I doubt that Arizona will object to its unexpected windfall, its briefs in the District Court, Court of Appeals, and this Court have argued that the District Court order simply went farther than was necessary given the injuries identified in its own opinion. See Brief for Petitioners 13-16. By agreeing with that proposition but nonetheless going on to extend unrequested relief, the Court oversteps the scope of the debate presented in this case. Whenever we take such a step, we venture unnecessarily onto dangerous ground.