Lewis v. Casey (94-1511), 516 U.S. 804 (1996)
[ Thomas ]
[ 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 Souter , with whom Justice Ginsburg and

The question accepted for review was a broadside challenge to the scope of the District Court's order of systemic or class wide relief, issued in reliance on Bounds v. Smith, 430 U.S. 817 (1977), not whether proof of actual injury is necessary to establish standing

to litigate a Bounds claim. The parties' discussions of actual injury, in their petition for certiorari, in their briefs, and during oral argument, focused upon the ultimate finding of liability and the scope of the injunction. Indeed, petitioner specifically stated that "[a]lthough the lack of a showing of injury means that Respondents are not entitled to any relief, the State does not contend that the Respondents lacked standing to raise these claims in the first instance. Respondents clearly met the threshold of an actual case or controversy pursuant to Article III of the United States Constitution. They simply failed to prove the existence of a constitutional violation, including causation of injury, that would entitle them to relief." Brief for Petitioners 33, n. 23. [n.1]

While we are certainly free ourselves to raise an issue of standing as going to Article III jurisdiction, and must do so when we would lack jurisdiction to deal with the merits, see Mount Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 278 (1977), there is no apparent question that the standing of at least one of the class action plaintiffs suffices for our jurisdiction and no dispute that standing doctrine does not address the principal issue in the case. We may thus adequately dispose of the basic issue simply by referring to the evidentiary record. That is what I would do, for my review of the cases from the Courts of Appeals either treating or bearing on the subject of Bounds standing convinces me that there is enough reason for debate about its appropriate elements that we should reach no final conclusions about it. That is especially true since we have not had the "benefit of briefing and argument informed by an appreciation of the potential breadth of the ruling." Missouri v. Jenkins, 515 U. S. ___, ___ (1995) (slip op., at 1-2) (Souter, J., dissenting). Addressing issues of standing may not amount to the significant breakdown in our process of orderly adjudication represented by Missouri v. Jenkins, but the Court does reach out to address a difficult conceptual question that is unnecessary to resolution of this case, was never addressed by the District Court or Court of Appeals, and divides what would otherwise presumably have been a unanimous Court.

That said, I cannot say that I am convinced that the Court has fallen into any error by invoking standing to deal with the District Court's orders addressing claims by and on behalf of non English speakers and prisoners in lockdown. While it is true that the demise of these prisoners' Bounds claims could be expressed as a failure of proof on the merits (and I would so express it), it would be equally correct to see these plaintiffs as losing on standing. "A determination even at the end of trial that the court is not prepared to award any remedy that would benefit the plaintiff[s] may be expressed as a conclusion that the plaintiff[s] lac[k] standing." 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3531.6, p. 478 (2d ed. 1984) (Wright & Miller).

Although application of standing doctrine may for our purposes dispose of the challenge to remedial orders insofar as they touch non English speakers and lockdown prisoners, standing principles cannot do the same job in reviewing challenges to the orders aimed at providing court access for the illiterate prisoners. One class representative has standing, as the Court concedes, and with the right to sue thus established, standing doctrine has no further part to play in considering the illiterate prisoners' claims. More specifically, the propriety of awarding class wide relief (in this case, affecting the entire prison system) does not require a demonstration that some or all of the unnamed class could themselves satisfy the standing requirements for named plaintiffs.

"[Unnamed plaintiffs] need not make any individual showing of standing [in order to obtain relief], because the standing issue focuses on whether the plaintiff is properly before the court, not whether represented parties or absent class members are properly before the court. Whether or not the named plaintiff who meets individual standing requirements may assert the rights of absent class members is neither a standing issue nor an Article III case or controversy issue but depends on meeting the prerequisites of Rule 23 governing class actions." 1 H. Newberg & A. Conte, Newberg on Class Actions, §2.07, pp. 2-40 to 2-41 (3d ed. 1992).

See also 7B Wright & Miller, supra, §1785.1, at 141 ("As long as the representative parties have a direct and substantial interest, they have standing; the question whether they may be allowed to present claims on behalf of others . . . depends not on standing, but on an assessment of typicality and adequacy of representation"). This analysis is confirmed by our treatment of standing when the case of a named class action plaintiff protesting a durational residence requirement becomes moot during litigation because the requirement becomes satisfied; even then the question is not whether suit can proceed on the standing of some unnamed members of the class, but whether "the named representative [can continue] to `fairly and adequately protect the interests of the class.' " Sosna v. Iowa, 419 U.S. 393, 403 (1975) (quoting Fed. Rule Civ. Proc. 23(a)).

Justice Scalia says that he is not applying a standing rule when he concludes (as I also do) that systemic relief is inappropriate here. Ante, at 16, n. 7, I accept his assurance. But he also makes it clear, by the same footnote, that he does not rest his conclusion (as I rest mine) solely on the failure to prove that in every Arizona prison, or even in many of them, the State denied court access to illiterate prisoners, a point on which I take it every Member of the Court agrees. Instead, he explains that a failure to prove that more than two illiterate prisoners suffered prejudice to nonfrivolous claims is (at least in part) the reason for reversal. Since he does not intend to be applying his standing rule in so saying, I assume he is applying a class action rule (requiring a denial of class wide relief when trial evidence does not show the existence of a class of injured claimants). But that route is just as unnecessary and complicating as the route through standing. (Indeed, the distinction between standing and class action rules might be practically irrelevant in this case, however important as precedent for other cases.)

While the propriety of the order of systemic relief for illiterate prisoners does not turn on the standing of class members, and certainly need not turn on class action rules, it clearly does turn on the respondents' failure to prove that denials of access to illiterate prisoners pervaded the State's prison system. Leaving aside the question whether that failure of proof might have been dealt with by reconsidering the class certification, see Fed. Rule Civ. Proc. 23(c)(1); General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); 7B Wright & Miller, supra, §1785, at 128-136, the state of the evidence simply left the District Court without an adequate basis for the exercise of its equitable discretion in issuing an order covering the entire system.

The injunction, for example, imposed detailed rules and requirements upon each of the State's prison libraries, including rules about library hours, supervision of prisoners within the facilities, request forms, educational and training requirements for librarians and their staff members, prisoners' access to the stacks, and inventory. Had the findings shown libraries in shambles throughout the prison system, this degree of intrusion might have been reasonable. But the findings included the specific acknowledgment that "[g]enerally, the facilities appear to have complete libraries." 834 F. Supp. 1553, 1568 (Ariz. 1992). The District Court found only that certain of the prison libraries did not allow inmates to browse the shelves, only that some of the volumes in some of the libraries lacked pocket parts, only that certain librarians at some of the libraries lacked law or library science degrees, and only that some prison staff members have no training in legal research. Given that adequately stocked libraries go far in satisfying the Bounds requirements, it was an abuse of discretion for the District Court to aggregate discrete, small bore problems in individual prisons and to treat them as if each prevailed throughout the prison system, for the purpose of justifying a broad remedial order covering virtually every aspect of each prison library.

Other elements of the injunction were simply unsupported by any factual finding. The District Court, for example, made no factual findings about problems prisoners may have encountered with noise in any library, let alone any findings that noise violations interfered with prisoners' access to the courts. Yet it imposed a requirement across the board that the State correct all "structural or acoustical problems." App. to Pet. for Cert. 68a. It is this overreaching of the evidentiary record, not the application of standing or even class action rules, that calls for the judgment to be reversed.

Finally, even with regard to the portions of the injunction based upon much stronger evidence of a Bounds violation, I would remand simply because the District Court failed to provide the State with an ample opportunity to participate in the process of fashioning a remedy and because it seems not to have considered the implications that Turner holds for this case. For example, while the District Court was correct to conclude that prisoners who experience delays in receiving books and receive only a limited number of books at the end of that delay have been denied access to the courts, it is unlikely that a proper application of Turner would have justified its decision to order the State to grant lockdown prisoners physical access to the stacks, given the significance of the State's safety interest in maintaining the lockdown system and the existence of an alternative, an improved paging system, acceptable to the respondents. Brief for Respondents 39.

Even if I were to reach the standing question, however, I would not adopt the standard the Court has established. In describing the injury requirement for standing, we have spoken of it as essential to an Article III case or controversy that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Flast v. Cohen, 392 U.S. 83, 101 (1968). We ask a plaintiff to prove "actual or threatened injury" to ensure that "the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).

I do not disagree with the Court that in order to meet these standards (in a case that does not involve substantial systemic deprivation of access), a prisoner suing under Bounds must assert something more than an abstract desire to have an adequate library or some other access mechanism. Nevertheless, while I believe that a prisoner must generally have some underlying claim or grievance for which he seeks judicial relief, I cannot endorse the standing requirement the Court now imposes.

On the Court's view, a district court may be required to examine the merits of each plaintiff's underlying claim in order to determine whether he has standing to litigate a Bounds claim. Ante, at 8, n. 3. The Court would require a determination that the claim is "nonfrivolous," ante, at 8, in the legal sense that it states a claim for relief that is at least arguable in law and in fact. I, in contrast, would go no further than to require that a prisoner have some concrete grievance or gripe about the conditions of his confinement, the validity of his conviction, or perhaps some other problem for which he would seek legal redress, see Part III-B, infra (even though a claim based on that grievance might well fail sooner or later in the judicial process).

There are three reasons supporting this as a sufficient standard. First, it is the existence of an underlying grievance, not its ultimate legal merit, that gives a prisoner a concrete interest in the litigation and will thus assure the serious and adversarial treatment of the Bounds claim. Second, Bounds recognized a right of access for those who seek adjudication, not just for sure winners or likely winners or possible winners. See Bounds, 430 U. S., at 824, 825, 828 (describing the constitutional right of access without limiting the right to prisoners with meritorious claims); see also ante, at 9 (describing the right of access even before Bounds as covering "a grievance that the inmate wished to present . . ." (citations omitted)). Finally, insistence on a "nonfrivolous claim" rather than a "concrete grievance" as a standing requirement will do no more than guarantee a lot of preliminary litigation over nothing. There is no prison system so blessed as to lack prisoners with nonfrivolous complaints. They will always turn up, or be turned up, and one way or the other the Bounds litigation will occur.

That last point may be, as the Court says, the answer to any suggestion that there need be no underlying claim requirement for a Bounds claim of complete and systemic denial of all means of court access. But in view of the Courts of Appeals that have seen the issue otherwise, [n.2] I would certainly reserve that issue for the day it might actually be addressed by the parties in a case before us.

In sum, I would go no further than to hold (in a case not involving substantial, systemic deprivation of access to court) that Article III requirements will normally be satisfied if a prisoner demonstrates that (1) he has a complaint or grievance, meritorious or not, [n.3] about the prison system or the validity of his conviction [n.4] that he would raise if his library research (or advice, or judicial review of a form complaint or other means of "access" chosen by the State) were to indicate that he had an actionable claim; and (2) that the access scheme provided by the prison is so inadequate that he cannot research, consult about, file, or litigate the claim, as the case may be.

While a more stringent standing requirement would, of course, serve to curb courts from interference with prison administration, that legitimate object is adequately served by two rules of existing law. Bounds itself makes it clear that the means of providing access is subject to the State's own choice. If, for example, a State wishes to avoid judicial review of its library standards and the adequacy of library services, it can choose a means of access involving use of the complaint form procedure mentioned by the Court today. Ante, at 8. And any judicial remedy, whatever the chosen means of court access, must be consistent with the rule in Turner v. Safley, 482 U.S. 78 (1987), that prison restrictions are valid if reasonably related to valid penological interests. Turner's level of scrutiny surely serves to limit undue intrusions and thus obviates the need for further protection. In the absence of evidence that the Turner framework does not adequately channel the discretion of federal courts, there would be no reason to toughen standing doctrine to provide an additional, and perhaps unnecessary, protection against this danger.

But instead of relying on these reasonable and existing safeguards against interference, the Court's resolution of this case forces a district court to engage in extensive and, I believe, needless enquiries into the underlying merit of prisoners' claims during the initial and final stages of a trial, and renders properly certified classes vulnerable to constant challenges throughout the course of litigation. The risk is that district courts will simply conclude that prisoner class actions are unmanageable. What, at the least, the Court overlooks is that a class action lending itself to a systemwide order of relief consistent with Turner avoids the multiplicity of separate suits and remedial orders that undermine the efficiency of a United States District Court just as surely as it can exhaust the legal resources of a much sued state prison system.

There are, finally, two additional points on which I disagree with the Court. First, I cannot concur in the suggestion that Bounds should be overruled to the extent that it requires States choosing to provide law libraries for court access to make them available for a prisoner's use in the period between filing a complaint and its final disposition. Ante, at 9-10. Bounds stated the obvious reasons for making libraries available for these purposes, 430 U. S., at 825-826, and developments since Bounds have confirmed its reasoning. With respect to habeas claims, for example, the need for some form of legal assistance is even more obvious now than it was then, because the restrictions developed since Bounds have created a "substantial risk" that prisoners proceeding without legal assistance will never be able to obtain review of the merits of their claims. See McFarland v. Scott, 512 U. S. ___ (1994) (discussing these developments). Nor should discouragement from the number of frivolous prison suits lead us to doubt the practical justifiability of providing assistance to a pro se prisoner during trial. In the past few years alone, we have considered the petitions of several prisoners who represented themselves at trial and on appeal, and who ultimately prevailed. See, e.g., Farmer v. Brennan, 511 U. S. ___ (1994); Helling v. McKinney, 509 U.S. 25 (1993); Hudson v. McMillian, 503 U.S. 1 (1992).

Second, I see no reason at this point to accept the Court's view that the Bounds right of access is necessarily restricted to attacks on sentences or challenges to conditions of confinement. See ante, at 10-11. It is not clear to me that a State may force a prisoner to abandon all opportunities to vindicate rights outside these two categories no matter how significant. We have already held that prisoners do not entirely forfeit certain fundamental rights, including the right to marry, Turner v. Safley, 482 U. S., at 95; the right to free speech, Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); and the right to free exercise of religion, see O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). One can imagine others that would arguably entitle a prisoner to some limited right of access to court. See, e.g., Lassiter v. Department of Social Servs. of Durham City, 452 U.S. 18 (1981) (parental rights); Boddie v. Connecticut, 401 U.S. 371 (1971) (divorce); cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50 (1950) (deportation). This case does not require us to consider whether, as a matter of constitutional principle, a prisoner's opportunities to vindicate rights in these spheres may be foreclosed, and I would not address such issues here.

I therefore concur in Parts I and III of the Court's opinion, dissent from Part II, and concur in the judgment.


1 Moreover, the issue of actual injury, even as framed by the parties, received relatively short shrift; only small portions of the parties' briefs addressed the issue, see Brief for Petitioners 30-33; Reply Brief for Petitioners 11-13; Brief for Respondents 25-30, and a significant portion of that discussion concentrated upon whether the issue should even be addressed by the Court, Reply Brief for Petitioners 12-13; Brief for Respondents 25-27.

2 See, e.g., Jenkins v. Lane, 977 F. 2d 266, 268-269 (CA7 1992) (waiving the requirement that a prisoner prove prejudice "where the prisoner alleges a direct, substantial and continuous, rather than a `minor and indirect,' limit on legal materials" on the ground that "a prisoner without any access to materials cannot determine the pleading requirements of his case, including the necessity of pleading prejudice"); cf. Strickler v. Waters, 989 F. 2d 1375, 1385, n. 16 (CA4 1993) (acknowledging the possibility that injury may be presumed in some situations, e.g., total denial of access to a library), cert. denied, 510 U.S. 949 (1993); Sowell v. Vose, 941 F. 2d 32, 35 (CA1 1991) (acknowledging that a prisoner may not need to prove prejudice when he alleges "[a]n absolute deprivation of access to all legal materials" (emphases in original)). Dispensing with any underlying claim requirement in such instances would be consistent with the rule of equity dealing with threatened injury. See, e.g., Farmer v. Brennan, 511 U. S. ___ (1994) (holding that a prisoner need not suffer physical injury before obtaining relief because " `[o]ne does not have to await the consummation of threatened injury to obtain preventive relief' " (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)); Helling v. McKinney, 509 U.S. 25, 33 (1993) (observing that prisoners may obtain relief "even though it was not alleged that the likely harm would occur immediately and even though the possible [harm] might not affect all of those [at risk]" (discussing Hutto v. Finney, 437 U.S. 678 (1978)). If the state denies prisoners all access to the courts, it is hardly implausible for a prisoner to claim a protected stake in opening some channel of access.

3 See Harris v. Young, 718 F. 3d 620, 622 (CA4 1983) ("It is unfair to force an inmate to prove that he has a meritorious claim which will require access until after he has had an opportunity to see just what his rights are"); see also Magee v. Waters, 810 F. 2d 451, 452 (CA4 1987) (suggesting that a prisoner must identify the "specific problem he wishe[s] to research"); cf. Vandelft v. Moses, 31 F. 3d 794, 798 (CA9 1994) (dismissing a Bounds claim in part because the prisoner "simply failed to show that the restrictions on library access had any effect on his access to the court relative to his personal restraint petition" (emphases in original)), cert. denied, 516 U. S. ___ (1995); Casteel v. Pieschek, 3 F. 3d 1050, 1056 (CA7 1993) (it is enough if the prisoner merely "identif[ies] the constitutional right the defendant allegedly violated and the specific facts constituting the deprivation"); Chandler v. Baird, 926 F. 2d 1057, 1063 (CA11 1991) ("there was no allegation in the complaint or in plaintiff's deposition that he was contemplating a challenge at that time [of the deprivation] to the conditions of his confinement"); Martin v. Tyson, 845 F. 2d 1451, 1456 (CA7) (dismissing a claim in part because the prisoner "does not point to any claim that he was unable to pursue"), cert. denied, 488 U.S. 863 (1988).

4 I do not foreclose the possibility of certain other complaints, see text accompanying n. 2, supra, and Part III-B, infra.