Johnson v. Miller

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT July 8, 2010

Elisabeth A. Shumaker
Clerk of Court
HAROLD LOYD JOHNSON,

Plaintiff - Appellant,

v. No. 09-6269
(D.C. No. 5:09-CV-00263-C)
DAVID MILLER, Warden, (W.D. Okla.)

Defendant - Appellee.

ORDER AND JUDGMENT*

Before, BRISCOE, Chief Circuit Judge, TACHA and O'BRIEN, Circuit Judges.

After examining the briefs and the appellate record, this panel concludes that oral

argument would not materially assist the determination of this appeal. See Fed. R. App.

P. 34(a)(2); 10th Cir. R. 34.1(G). This case is submitted for decision without oral

argument.

*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
 Harold Loyd Johnson, an Oklahoma state prisoner appearing pro se,1 brought a 42

U.S.C. § 1983 civil rights complaint against Warden David Miller (Miller). He appeals

from a summary judgment entered in favor of Miller. We affirm.

I. BACKGROUND

Johnson was convicted of murder in the first degree in Oklahoma state court and

sentenced to life without parole.2 He is in the custody of the Oklahoma Department of

Corrections (ODOC) and incarcerated at the Lawton Correctional Facility (Lawton).

Johnson’s complaint alleges Miller, in his capacity as Warden of Lawton, implemented

and enforced various regulations and procedures governing visitation and access to legal

materials, which violated Johnson’s rights under the First, Fifth and Fourteenth

Amendments.

A. Factual Background

1. Visitation

The ODOC enacted rules, regulations, and policies governing visitation of inmates

in prison facilities.3 See DOC OP-030118 (8/23/2007). It directed facilities to develop

security procedures and authorized the use of “physical search[es], pat searches, metal

detectors, ion scan devices and canine drug detection screening” to prevent the

1
We liberally construe pro se pleadings. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
2
His conviction proceedings are irrelevant to this appeal.
3
The ODOC submitted to the district court copies of various regulations and
policies which appear to have been in effect during the time period relevant to the events
at issue in this case. Johnson did not object and the district court relied upon them in
reaching its decision. We do the same.

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introduction of contraband by visitors. (R. Vol. I at 87 (DOC OP-030118 at III(G)).)

Searches and seizures conducted by local facilities must be in accord with another ODOC

regulation (DOC OP-040110) entitled “Search and Seizure Standards.” (Id. at 94.)

These standards inform inmates, visitors, and employees when they can be searched and

the circumstances under which various search methods may be used. “Searches will be

conducted in a manner that causes the least disruption and affords respect and privacy for

the property or person searched. Staff will avoid unnecessary force or embarrassment.”

(R. Vol. I at 95 (DOC OP-040110 at I(A)(5)).) Procedures outlined in the ODOC

regulations also “identify the process for the temporary or permanent removal of visitors”

or the limitation of visitation privileges.4 (Id. at 85 (DOC OP-030118 at II(D)(3)(a)).)

The regulations emphasize that “[v]isitation is a privilege, not a right.” (Id. at 79 (DOC

OP-030118 at 1(A)).)

Pursuant to the ODOC regulations, Miller enacted a policy at Lawton that required

the use of an electronic detection machine called an IONSCAN to test all visitors,

employees, and inmates “to detect the possession or use of illegal drugs.” (R. Vol. I at

259 (Lawton Correctional Facility Policy # 08.016 at I(A)).) A cotton swab is rubbed

over a person’s skin or belongings and is then tested with the IONSCAN. If the first

swab tests positive for the presence of drugs, another will be taken. If the second swab

4
If visitors violate any rule or regulation (including the attempted importation or
the detected use of illegal drugs) their visitation privileges may be temporarily
suspended. The first violation may lead to a 90 to 180 day suspension of visitation
privileges; a second violation may lead to a 180 to 365 day suspension and a third
violation requires a permanent suspension of privileges.

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tests positive, a third swab will be tested. If the three consecutive tests register the

presence of an illegal substance, the visitor fails the scan. In that case, the Warden or his

designee is immediately notified and “will make the sole determination regarding the

entrance into the facility from the failed results.” (Id. at 261.)

Johnson’s mother arrived at Lawton to visit her son on March 24, 2008. She was

denied entry after the IONSCAN machine detected the presence of illegal drugs,

presumably on three separate swab tests. In accordance with the regulations and at

Miller’s discretion, her visitation privileges were temporarily suspended for 90 days as a

result of the detection of drug presence. Both she and Johnson received notification of

the suspension in writing on March 31, 2008. On April 1, 2008, Johnson filed a “Request

to Staff” (RTS) grievance form challenging the accuracy of the IONSCAN and stating his

mother should have been allowed to undergo a blood test, urine test or strip search so that

she could “prove her innocence.” (Id. at 61-62.) Johnson requested his “moms [sic]

visitation privileges to be restored. Thank you!” (R. Vol. I at 61.)

The prison staff responded three days later saying: “Her visitation privileges will

be restored after 6-24-08.” (R. Vol. I at 61.) Johnson filed a second grievance which

asked the prison staff to “answer the request to staff of why proper procedure was not

followed.” (Id. at 63.) Lawton staff responded the grievance form was “being returned

unanswered” because the prison had already answered the RTS and informed Johnson

“her privileges will be restored 6-24-08.” (Id. at 65.)

Johnson then appealed to the Director of the ODOC, asking him “to answer . . .

why proper procedure was not followed when my visitor tested positive on the

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IONSCAN test.” (Id. at 66.) Ultimately the ODOC responded: “This issue will be

addressed by Warden Miller at [Lawton].” (Id. at 77.) By this time, his mother’s

visitation privileges had been restored and the record shows no further communication

between Johnson and Lawton or the ODOC on the issue. After Johnson’s mother’s

privileges were restored, she visited Lawton at least twice.

B. Legal Research and Access to the Court

The ODOC’s regulations regarding a prisoner’s right to access the courts and legal

materials require library staff or inmate research assistants5 to visit prisoners in

segregated units five days per week, excepting holidays. Segregated inmates can request

and obtain cases or statutes from these individuals if the request provides an accurate

citation and is on a particular form. The requirement of an accurate citation has led

many, including the parties here, to refer to this system of obtaining legal materials as the

“exact cite” system. The ODOC libraries do not provide copies of cases decided before

1976 or from courts outside the Tenth Circuit. However, such materials may be

requested from legal aid organizations with the assistance of law library staff.

Johnson is incarcerated in a segregated housing unit at Lawton and depends on an

inmate research assistant and the exact cite system for his legal research. On August 25,

2008, he filed a RTS arguing the exact cite system denies him “adequate access to the

courts” and violates his constitutional rights; he demanded access to a law library. (Id. at

5
Inmate research assistants are “trained . . . to assist inmates in framing legal
issues, conducting research and preparing pleadings relating to conditions of confinement
and post conviction relief.” (R. Vol. I at 159.)

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112.) Two days later, the staff responded: “Your access to courts are [sic] not denied.”

(Id.) Johnson appealed to the Warden asking him to stop violating Johnson’s

constitutional rights through “the use of the exact-site system that denies [Johnson]

access to the courts . . . [and] provide [him] with a law library.” (Id. at 114.) Miller

responded: “The Law Library staff makes daily visit [sic] to your housing unit and are

available to assist you in any legal material that you may require. Therefore you[r]

access to the courts or the law library is not being denied.” (Id. at 116.) Johnson then

appealed to the ODOC. He said “according to the cases quoted in my ‘Request to Staff’

and ‘Grievance’, the exact-cite system . . . is in violation of my fundamental

constitutional right of access to the courts. I don’t think that courts across the United

States of America are all wrong about the exact-cite system.” (R. Vol. I at 121.) The

ODOC denied his appeal.

C. Procedural Background

Johnson challenged the denials of these grievances in a civil rights complaint

brought pursuant to 42 U.S.C. § 1983. He first claimed Miller’s use of an IONSCAN

screening device to search visitors for the presence of illegal substances and the 90-day

suspension of his mother’s visitation privileges based on use of an IONSCAN machine

violated his (and his mother’s) First, Fourth, and Fourteenth Amendment rights. More

specifically, he contended “proper procedures were not followed” because his mother

“should [have] been allowed to have a strip search, urine, or blood test done to prove her

innocence before being punished. (Id. at 7, 9.) He argues Miller’s response ignoring his

procedural argument “denied [Johnson’s] due process by not allowing [him] access to the

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grievance process . . . .” (Id. at 10.)

Johnson’s second claim alleged the exact cite system violates his First and

Fourteenth Amendment rights to access the courts. His complaint alleged he “cannot

research with this exact-cite system efficiently. Some cases take days to be brought,

others take weeks. None before 1976 can be ordered. I’m not allowed to read the book

that comes out with recent decisions . . . .” (Id. at 12.)

The case was assigned to a magistrate judge who, on March 18, 2009, ordered the

ODOC to file a Special Report in compliance with Martinez v. Aaron, 570 F.2d 317 (10th

Cir. 1978).6 ODOC was to file the report with its Answer to Johnson’s complaint within

60 days from the date the complaint was received.

On April 21, 2009, Johnson filed a motion requesting access to a law library, a

preliminary injunction limiting the use of the IONSCAN machine, as well as an

investigation into and a protective order against Lawton officials. On May 14, 2009,

Johnson filed a “Declaration For Entry For Default” which demanded entry of a default

judgment against Miller for failure to respond to Johnson’s complaint within 20 days.

This was construed as a motion for relief pursuant to Fed. R. Civ. P. 55(b)(2).7

The magistrate considered these motions together. He first determined the ODOC

6
See Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992) (“In this
circuit we allow a court authorized report and investigation by prison officials to
determine whether a pro se prisoner’s allegations have any factual or legal basis. These
reports are referred to as Martinez reports.”).
7
Rule 55(b)(2) allows entry of default judgment by the court upon application by
a plaintiff.

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had not been served with process until April 3, 2009, and the answer date had not yet

passed. Accordingly, he issued a report recommending denial of Johnson’s motion for

default judgment. He also recommended the preliminary injunction be denied because

Johnson had failed to show a likelihood of success on the merits and failed to allege any

facts to support his request. The district court adopted these recommendations.

The ODOC then filed the Martinez report accompanied by Miller’s Motion to

Dismiss/Motion for Summary Judgment. The report stated “[Lawton] and DOC policy

[had] been followed with respect to [Johnson’s] visitation and access to the courts” and

Johnson had not exhausted his administrative remedies relating to his visitation claim.

(R. Vol. I at 55.) Miller’s motion argued the complaint failed to allege a genuine issue of

material fact and he was entitled to judgment as a matter of law.

The magistrate issued a supplemental report (SR&R) recommending the district

court grant Miller’s motion for summary judgment because Johnson had presented no

evidence the IONSCAN was faulty and had not suggested any “obvious regulatory

alternative that fully accommodates [his right to association] while not imposing more

than de minimis cost” thus, his First Amendment claim must fail. (Id. at 309 (quoting

Overton v. United States, 539 U.S. 126, 136 (2003)). Similarly, the magistrate

recommended summary judgment on Johnson’s access to the courts claim because “none

of [Johnson’s] allegations provide evidence of actual injury . . . as a result of the legal

assistance program provided to him at [Lawton].” (Id. at 313.)

Johnson objected to the SR&R, claiming it was up to Miller to present evidence

that the IONSCAN was reliable because the evidence was in his possession and Johnson

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had been denied discovery. He also stated there were viable alternatives to accomplish

security already located at the facility, referring to the use of drug dogs, an x-ray machine

and numerous cameras in the visiting area. He claimed his access to courts had injured

his abilities to litigate several cases and that case law established a violation of

constitutional rights because there was no access to reference books or a satellite law

library.

The district court adopted the magistrate’s SR&R and entered judgment for Miller.

Johnson appeals from this decision. Almost as an aside, and without any development,

he also asserts the district court improperly failed to grant a default judgment against

Miller or issue a preliminary injunction in his favor.

II. DISCUSSION

“We review the grant of summary judgment de novo, applying the same standard

as the district court pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.”

Gwinn v. Awmiller, 354 F.3d 1211, 1215 (10th Cir. 2004). Summary judgment is only

appropriate if “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “While the movant

bears the burden of showing the absence of a genuine issue of material fact, the movant

need not negate the nonmovant’s claim.” Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir.

1996). Once the movant carries his burden, the nonmoving party must “bring forward

specific facts showing a genuine issue for trial as to those dispositive matters for which it

carries the burden of proof.” Id. An issue of material fact is genuine if a reasonable jury

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could find in favor of the nonmovant. Id.

A. First Amendment Right to Association and Fourteenth Amendment Due Process

As an initial matter, we must consider whether Johnson has standing to pursue his

claims. “Standing implicates a court’s jurisdiction, and requires a court itself to raise and

address standing before reaching the merits of the case before it.” San Juan County,

Utah v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc) (quotations and

alterations omitted). A party “must show that he has sustained or is immediately in

danger of sustaining some direct injury as the result of the challenged official conduct

and the injury or threat of injury must be both real and immediate, not conjectural or

hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (quotations

omitted).

1. Johnson’s Mother’s Rights

Johnson alleged numerous violations of his mother’s constitutional rights.

Specifically, he argued Miller: (1) unreasonably searched Johnson’s mother for the

presence or use of drugs with an unreliable IONSCAN machine; (2) wrongfully refused

to strip search her or test her blood or urine; (3) improperly removed her visitation

privileges; and (4) unlawfully failed to explain his actions when she sought to appeal the

suspension of her privileges. This portion of Johnson’s complaint involves alleged

injuries to Johnson’s mother. Thus, she is the proper party to seek relief, not he. We lack

jurisdiction over those claims. See The Wilderness Soc'y v. Kane Cty., Utah, 581 F.3d

1198, 1209 (10th Cir. 2009) (“Absent a plaintiff with constitutional standing, federal

courts lack jurisdiction.”); see also Flast v. Cohen, 392 U.S. 83, 99 n. 20 (1968) (“[A]

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general standing limitation imposed by federal courts is that a litigant will ordinarily not

be permitted to assert the rights of absent third parties.”).1

2. Johnson’s Rights

Johnson’s civil rights complaint initially alleged a violation of his First and

Fourteenth Amendment rights. As detailed above, the district court gave his pleadings a

liberal construction and explored a number of issues arguably raised therein. The court

thoughtfully and cogently analyzed alleged violations of Johnson’s rights involving

Miller’s implementation of the applicable regulations and procedures and Miller’s

responses to Johnson’s grievances. On appeal, other than Johnson’s claims concerning

his mother, he makes no argument regarding the alleged violations of his First and

Fourteenth Amendment rights. Instead, he only asks that we “review all of the briefs

presented concerning this issue.” (Appellant’s Opening Br. at 11.)

Similarly, the entirety of Johnson’s appellate argument relating to his requests for

a preliminary injunction and default judgment states:

The Preliminary Injunction should have been granted. The Default
Judgment should have been enforced against the Defendant who is a private
citizen and not a [sic] Oklahoma, D.O.C. state employee. There is [sic] a
lot of things that were not considered. I tried to protect my rights and stand
up for what is right and I have suffered for trying. Please review the whole
case.

(Appellant’s Br. at 17.) Johnson makes multiple similar blanket requests that we “review

1
In some instances, Congress grants a statutory right of action for a party who
suffers some injury to bring a claim based on another’s rights. See Warth v. Seldin, 422
U.S. 490, 501 (1975). 42 U.S.C. § 1983 creates no such right, saying only the
government official “shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.” (Emphasis added.).

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all of the briefs presented,” “see the motions and briefs for in depth discussions,” or says

“I believe this court knows the appropriate laws to apply. Please review my entire case

from the start to the finish of the U.S. District Court proceedings,” and “[the district

court] did not follow the rules about summary judgment . . . . Please review all the case

and the record.” (Id. at 11, 13, 14, 16.)

Because Johnson is appearing pro se, we construe his filings liberally but “our role

is not to act as his advocate.” See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir.

2009). Pro se status “does not excuse the obligation of any litigant to comply with the

fundamental requirements of the Federal Rules of Civil and Appellate Procedure” and we

will not make his arguments for him.2 Ogden v. San Juan County, 32 F.3d 452, 455 (10th

Cir. 1994); see also United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237-38 n.8

(10th Cir. 1997) (it is not our responsibility to “‘sift through’ the record to find support

for the claimant’s arguments”). Because Johnson has failed to develop any argument on

appeal regarding alleged violations of his First and Fourteenth Amendment rights, these

issues are waived. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented, in an appellant’s opening brief.”); Fuerschbach v. Southwest

Airlines Co., 439 F.3d 1197, 1209-10 (10th Cir. 2006) (issue waived when not developed

2
We have reviewed all submitted materials thoroughly but reiterate it is
Johnson’s duty to provide appropriate citations to the record and set forth his arguments.
See Fed. R. App. P. 28(a)(9)(A) (requiring “appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which the appellant
relies”); 10th Cir. R. App. P. 28.4 (“Incorporating by reference . . . is disapproved and
does not satisfy the requirements of Fed. R. App. P. 28(a) . . .”).

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on appeal); Artes-Roy v. City of Aspen, 31 F.3d 958, 960 n. 1 (10th Cir. 1994) (claims and

arguments not “specifically address[ed]” on appeal are deemed to be abandoned).

B. Access to legal research and the courts

Johnson argues the exact cite system he must use for legal research “is

unconstitutional and denies [him] access to the courts . . . . I cannot research with this

exact cite system effeciently [sic] . . . . [I] never got to review all the cases and rules.”

(Appellant’s Br. at 12.) He contends, “[t]he denial of not being able to research current

cases and not knowing what to do or what laws could help or hurt a case are injurious. It

is ‘ongoing.’” (Appellant’s Br. at 13.)

A “constitutional right of access to the courts is clearly established.” See Treff v.

Galetka, 74 F.3d 191, 194 (10th Cir. 1996). But there is no “abstract, freestanding right

to a law library or legal assistance[;] an inmate cannot establish relevant actual injury

simply by establishing that his prison’s law library or legal assistance program is subpar

in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). A plaintiff “must

show that any denial or delay of access to the court prejudiced him in pursuing

litigation.” Treff, 74 F.3d at 194; see also Casey, 518 U.S. at 351 (stating “meaningful

access to the courts is the touchstone . . . the inmate . . . must . . . demonstrate that the

alleged shortcomings in [a law] library . . . hindered his efforts to pursue a legal claim”).

Further, the inmate’s legal claim must be nonfrivolous because “[d]epriving someone of a

frivolous claim . . . deprives him of nothing at all . . .” Casey, 518 U.S. at 353 n.3.

Two cases from our circuit provide relevant insight into our review of claims that

a prisoner was denied access to the courts. In Trujillo v. Williams, the plaintiff alleged a

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“relevant actual injury” by arguing various prison officials wrongfully denied him access

to legal materials and the courts. 465 F.3d 1210, 1226-27 (10th Cir. 2006). He

specifically identified legal materials he sought, documented substantial delays caused as

a result of the exact cite system, and alleged the system “prevented him from filing a state

habeas corpus petition and from challenging the . . . ex post facto changing of his

sentence.” Id. We acknowledged Trujillo had not asserted his claims were nonfrivolous,

“[b]ut a pro se plaintiff . . . whose factual allegations are close to stating a claim but are

missing some important element that may not have occurred to him, should be allowed to

amend his complaint.” Id. at 1227.

In contrast, we have rejected a prisoner’s conclusory allegations that a prison’s

law library limited his access to the courts when the prisoner “did not describe

sufficiently the legal materials he was seeking; he did not clarify that the [prison’s law]

library and its resources were inadequate for his needs; and he did not explain that his

legal claim was nonfrivolous.” McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001)

(citations omitted); see also Petrick v. Maynard, 11 F.3d 991, 995 (10th Cir. 1993)

(noting “a prisoner must do more than make a conclusory allegation of need for

unspecified or unlimited materials . . .”).

1. Nonfrivolous Claim

Numerous briefs from Miller, the magistrate judge’s SR&R, and the district

court’s opinion have all put Johnson on notice of his requirement to allege some specific

instance where the exact cite system hindered the prosecution of a nonfrivolous claim.

Yet Johnson has never alleged any nonfrivolous claim has been affected due to the exact-

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cite system and has continuously failed to show there is an issue of material fact for trial.

Indeed, he still fails to identify a valid legal issue hindered by the exact cite system. In

his words:

Johnson[’s claims] will consist of some issues such as Newly Discovered
Evidence, Brady Issues,3 Ineffective Assistance of Trial and Appellant [sic]
Counsel, Distruction [sic] of court records and Files, Perjured Testimony by
state witnesses, Denial of Competency hearing, Prosecutorial misconduct
and Jury issues. These are some issues that have come to light recently that
Johnson has been wrongly convicted of First Degree Murder. Johnson
needs to be able to do meaningful research on his criminal and civil cases
current and future.

....

Johnson needs to be able to do ‘Research’ on (A) his criminal conviction to
prepare for his post-conviction filing and Gaining access to his Records and
Files (B) This current 1983 Civil Rights Complaint; (c) Current Protective
Order in Comanche County, . . . (d) Current Preparation of upcoming 1983
Civil Rights Complaint, concerning new constitutional violations, (E)
Research on [a separate prisoner’s] Habeas Corpus petition whose deadline
to file maybe approaching Fast.4

(Appellant’s Br. at 6-7.) Undoubtedly, he sets forth general issues involving his criminal

conviction. Case numbers from his various past and present lawsuits are provided, but

there is no description of the specific claims involved or their basis in fact. He generally

refers us to previously filed motions and briefs for “in depth discussions on this issue.”

3
A “Brady issue” is legal shorthand for a claim alleging the prosecution violated
its duty, in any number of ways, to disclose exculpatory evidence under Brady v.
Maryland, 373 U.S. 83 (1963).
4
A potential constitutional claim of another prisoner does not qualify as a
nonfrivolous claim for purposes of Johnson’s access to the courts. See Cotner v.
Hopkins, 795 F.2d 900, 902 (10th Cir. 1986); Bass v. Singletary, 143 F.3d 1442, 1446
(11th Cir. 1998). As with claims involving harm to his mother, Johnson lacks standing to
assert any challenge involving the alleged inability to conduct legal research on another
prisoner’s habeas claim.

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(Id. at 13.) However, a review of the record shows no discussion or development

regarding the validity of Johnson’s claims in any other motion or brief.

Johnson’s claims are unlike the prisoner in Trujillo, who explained the exact-cite

system hampered a state habeas corpus petition challenging the “ex post facto changing

of his sentence” which we recognized was a valid attempt to attack his sentence – one of

the primary purposes behind the guarantee of access to the courts. 465 F.3d at 1226-27.

While Trujillo had not specifically alleged his claim was nonfrivolous, we noted this was

the only element lacking and, thus, allowed him to amend. Id. at 1227. Instead,

Johnson’s arguments are closer to those in McBride, where the prisoner failed to satisfy

multiple elements including the provision of any factual allegations to support his

assertions. McBride, 240 F.3d at 1290. Johnson has only provided vague descriptions of

his claims and for this reason we are unable to conclude any are nonfrivolous.

2. Prejudice

In Bounds v. Smith, the Supreme Court made it clear that prisoners have no

absolute right to any particular type of legal assistance. 430 U.S. 817, 825 (1977). Under

Bounds, the state is duty bound to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law. Id. at 828. Johnson cites more than ten cases

from across the country which have denounced - and sometimes declared

unconstitutional - various forms of the exact-cite system implemented by prisons. He

asks us to examine Lawton’s exact-cite system and do the same. He argues Lawton’s

version of the exact-cite system, particularly its failure to provide access to a satellite law

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library, is per se unconstitutional.

We need not decide this issue today. Because Johnson has not provided factual

support to demonstrate his claims are nonfrivolous, it is unnecessary to consider whether

the exact-cite system impermissibly restricts his ability to research the law in relation to

those claims. We AFFIRM the judgment of the district court and DENY as moot

Johnson’s pending motion for temporary preliminary injunctive relief filed with this

court.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

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