Dahler v. Goodman

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 19 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk

DAVID S. DAHLER,

Plaintiff-Appellant,
v.

FRANK GOODMAN, Education
Technician, USP Leavenworth;
D. ROBERTS, Sr. Case Manager, USP No. 97-3177
Leavenworth; PAGE TRUE, Warden, (D.C. No. 96-3343 GTV)
USP Leavenworth; PATRICK R. (District of Kansas)
KANE, Regional Director, Federal
Bureau of Prisons, Kansas City,
Kansas; KATHY HAWK, Director,
Federal Bureau of Prisons,
Washington, D.C.,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
 This pro se appeal by a prisoner at the United States Penitentiary in

Leavenworth, Kansas, challenges the decision by prison officials not to provide

the prisoner with access to annotated sets of state statutes from Michigan and

Wisconsin. Because the court relied on erroneous factual findings and failed to

consider applicable legal standards when it dismissed the plaintiff’s suit, we must

reverse and remand.

I.

David Dahler, plaintiff-appellant, filed this civil rights suit against federal

officials at the Leavenworth penitentiary on July 9, 1996, alleging a cause of

action under Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S.

388 (1971), for a violation of Dahler’s constitutional right of access to the

courts. 1 (See R., Doc. #2, “Civil Rights Complaint with a Jury Demand,” at 3-4.)

Because Dahler’s suit was filed after the effective date of the Prisoner Litigation

Reform Act (PLRA), it was processed under that act’s filing procedures for in

forma pauperis suits by prisoners. See 28 U.S.C.A. § 1915 (West 1997 Supp.);

1
Dahler also alleged a cause of action under 42 U.S.C. § 1983, but this
claim is clearly without merit because section 1983 applies only to government
conduct “under color of state law,” rather than under color of federal law. See
Wheeldin v. Wheeler, 373 U.S. 647, 650 n.2 (1963). Dahler has not alleged that
the federal officials in this case acted under anything other than federal law, and
as a result, section 1983 does not apply to his suit.

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see also Green v. Nottingham, 90 F.3d 415, 418-19 (10th Cir. 1997) (finding that

the PLRA’s filing fee provisions are procedural rules whose requirements do not

have a prohibited “retroactive effect”).

Dahler’s suit arose out of a written request he filed with prison officials on

January 2, 1996, asking to be provided access with a complete annotated set of

the Michigan and Wisconsin state statutes, as well as the rules of criminal and

civil procedure for those states. (See R., Doc. #2, Ex. 1.) Dahler explained in his

request that he needed these statute books to assist him in his effort to challenge

certain state convictions in those states because those convictions had been used

to enhance his federal sentence. (See id.) The prison denied Dahler’s request,

contending that it was not required to provide prisoners access to state-law

materials. (See R., Doc. #2, Ex. 2.) The prison also explained that Dahler could

meet his alleged need for Wisconsin and Michigan legal materials by contacting

the University of Kansas School of Law clinical program for prisoners, which is

under contract to the prison to provide legal assistance to prisoners. (See id.)

Dahler found this decision unsatisfactory, and he filed an internal grievance

with the warden at the Leavenworth penitentiary. (See R., Doc. #2, Ex. 5.) The

warden denied Dahler’s grievance, again citing Dahler’s access to the clinical

program at the University of Kansas School of Law. (See R., Doc. #2, Ex. 6.)

Dahler pursued his grievance to the next administrative level, but again his

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request was denied, along with a reference again to the clinical program at the

University of Kansas. (See R., Doc. #2, Exs. 7 & 8.) Dahler took his grievance

to the National Inmate Appeals office, alleging for the first time in this filing that

the clinical program at the University of Kansas would not help him: “[A]s far as

the Government’s contract with the University of Kansas Law School, I’ve

submitted [a] request for assistance to them and never received an answer[,] plus

they don’t deal in Wisconsin and Michigan law, the area I need the material in.”

(R., Doc. #2, Ex. 9.) On May 31, 1996, the administrator of the National Inmate

Appeals office issued a final denial of Dahler’s grievance. (See R., Doc. #2, Ex.

10.) The denial once again cited the clinical program at the University of Kansas,

but the inmate appeals office failed to address Dahler’s point that the clinical

program either was unable or unwilling to assist him. (See id.) This final

decision also found that Dahler’s request for a complete set of statute books was

unreasonably overbroad, and that Dahler should have made a more limited

specific request. (See id.)

Within forty days of this final administrative decision, Dahler filed his civil

rights suit in federal district court seeking injunctive and declaratory relief, as

well as compensatory and punitive damages. (See R., Doc. #2, at 8.) After

granting permission for Dahler to proceed in forma pauperis under 28 U.S.C.A.

§ 1915( b) (West Supp. 1997), the district court dismissed Dahler’s complaint for

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failure to state a claim. 2 (See R., Doc. #11, “Order,” at 3.) The district court

found that Dahler’s request for complete sets of statute books from Michigan and

Wisconsin was “too broad to sufficiently describe the materials he sought.” (See

id.) The district court also found that “the record does not suggest plaintiff made

any effort to contact the source of legal assistance supplied by defendants.” (See

id.) As result, the district court concluded that Dahler’s constitutional right of

access to the courts had not been denied. Dahler now appeals.

II.

As a preliminary matter, we note that there is some uncertainty in this

circuit as to what standard of review we should apply to a district court’s

dismissal of an in forma pauperis action when the basis of the dismissal is for

failure to state a claim. The most recent reported opinion of this court held that

the standard of review for a dismissal under section 1915(e)(2) was for abuse of

discretion. See McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997).

The McWilliams decision, however, arose in the context of a dismissal for

2
The district court entered its judgment of dismissal sua sponte, before any
of the defendants in the case had been formally served with legal process. This
fact suggests, even though the district court failed to explicitly indicate so, that
the court’s dismissal was entered under 28 U.S.C.A. 1915(e)(2)(B)(ii) (West
Supp. 1997), which requires a district court to dismiss an in forma pauperis action
when it appears that the action fails to state a claim on which relief may be
granted.

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frivolousness under section 1915(e)(2)(B)(I). See id. at 574. In subsequent

unreported decisions, we have suggested that the more rigorous de novo standard

of review could apply to dismissals under section 1915(e)(2)(B)(ii), where the

basis of the dismissal is not for frivolity but for failure to state a claim on which

relief may be granted. See Carter v. Hobbs Police Dep’t, No. 97-2045, 1998 WL

31437, at *1 n.2 (10th Cir. Jan. 28, 1998) (unreported order & judgment)

(concluding that the court need not resolve the difficult question of which

standard of review should apply to a dismissal under section 1915(e)(2)(B)(ii)

because the district court’s decision appeared to be focused solely on the

frivolousness of the plaintiff’s complaint); Forisso v. Johnson, No. 97-2228, 1998

WL 3284, at *1 (10th Cir. Jan. 7, 1998) (unreported order & judgment) (ruling

that the de novo standard of review should apply when the district court failed to

make clear whether it was dismissing the prisoner’s complaint under Fed. R. Civ.

P. 12(b)(6) for failure to state a claim or under section 1915(e)(2)). Despite the

lack of any clear precedent on this issue, we believe we need not settle this

question because our resolution of Dahler’s appeal meets either standard of

review.

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 III.

Under our case law, a prisoner has a constitutional right of access to the

courts to challenge the validity of his sentence, and part of this constitutional

right is a requirement that prison officials assist inmates in filing nonfrivolous

legal claims either by “providing prisoners with adequate law libraries or

adequate assistance from persons trained in the law.” See Lewis v. Casey, 116 S.

Ct. 2174, 2177 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)); see

also Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (per curiam)

(applying Lewis and Bounds to a claim of inadequate access to a prison law

library). As Lewis made clear, a prisoner may bring a claim alleging an

infringement of his constitutional right of access to the courts based on alleged

inadequacies in his prison’s legal assistance program if, and only if, the prisoner

can demonstrate that these inadequacies have caused him “actual injury.” See

Lewis, 116 S. Ct. at 2179-80. This allegation of an actual injury must be

sufficient to “demonstrate that the alleged shortcomings in the library or legal

assistance program hindered [the prisoner’s] efforts to pursue a legal claim.” Id.

at 2180 (emphasis added); see also Penrod, 94 F.3d at 1403 (“[A]n inmate must

satisfy the standing requirement of ‘actual injury’ by showing that the denial of

legal resources hindered the prisoner’s efforts to pursue a nonfrivolous claim.”)

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(emphasis added). 3 Furthermore, the only injuries that are cognizable under

Lewis are inadequacies that have “hindered” a prisoner’s abilities to “attack [his]

sentence[], directly or collaterally, and . . . to challenge the conditions of [his]

confinement. Impairment of any other litigating capacity is simply one of the

incidental (and perfectly constitutional) consequences of conviction and

incarceration.” Lewis, 116 S. Ct. at 2182 (emphasis in original).

In Dahler’s case, he has alleged that the failure of the Leavenworth

penitentiary to provide him access to Michigan and Wisconsin statutory materials

has hindered his ability to attack collaterally his federal sentence because his

sentence was based in part on state convictions in Michigan and Wisconsin. (See

3
In an unpublished opinion last year, we noted that the Supreme Court’s
decision in Lewis effectively overruled prior Tenth Circuit precedent which had
allowed a prisoner’s access-to-court claim go forward even without a showing of
actual injury to any of the prisoner’s pending or contemplated litigation efforts.
See Tucker v. Graves, No. 96-3015, 1997 WL 100884, at *1 n.2 (10th Cir. Mar. 6,
1997) (unpublished order & judgment) (holding that “Ruark v. Solano, 928 F.2d
947 (10th Cir. 1991) . . . is effectively overruled on this point” by Lewis). Since
Tucker, we have not revisited the question of just how specifically a plaintiff
must plead his allegation of actual injury in an access-to-courts claim, but we
think it is clear that the actual injury requirement of Lewis and Penrod means only
that a plaintiff must allege in his initial complaint that his prison’s denial of
access to legal materials has “hindered” his litigation efforts. See Lewis, 116 S.
Ct. at 2180; Penrod, 94 F.3d at 1403. Compare Treff v. Galetka, 74 F.3d 191, 194
(10th Cir. 1996) (holding -- in a decision prior to either Lewis or Penrod -- that a
prisoner must allege that the prison’s denial of legal materials has “prejudiced”
him in pursuing litigation). The requirements in Penrod and Treff are not
inconsistent because Penrod equated hindrance of a nonfrivolous claim to actual
injury, i.e., as a form of the prejudice required in Treff.

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R., Doc. #2, at 4.) This allegation would be sufficient, if proven, to establish the

kind of actual injury required in Lewis and Penrod. See Lewis, 116 S. Ct. at

2182; Penrod, 94 F.3d at 1403; see also Petrick v. Maynard, 11 F.3d 991, 993

(10th Cir. 1993) (finding an Oklahoma prisoner’s allegation of a denial of access

to the courts to be sufficient based on his claim that prison officials had refused

to provide him with North Dakota and Minnesota state-law materials that were

needed to challenge the state convictions that had been used to enhance the

prisoner’s Oklahoma sentence).

Despite the sufficiency of Dahler’s allegation of actual injury, the district

court dismissed Dahler’s complaint for failure to state a claim on which relief

could be granted. (See R., Doc. #12, “Judgment in a Civil Case.”) The district

court concluded that dismissal was required in light of the court’s factual finding

that Dahler had failed to take advantage of the legal assistance provided to

Leavenworth inmates through the University of Kansas School of Law clinical

program. 4 (See R., Doc. #11, at 3.) The factual premise of the court’s ruling

here, however, is belied by the evidence presented in the plaintiff’s own

4
The text of the district court’s ruling is as follows:
Because the record does not suggest plaintiff made any
effort to contact the source of legal assistance supplied
by defendants, the court finds plaintiff’s claim
defendants denied him access to the courts fails to state
a claim for relief.
(R., Doc. #11, at 3.)

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complaint. Dahler’s complaint incorporated by explicit references the entire

history of the administrative grievances he had pursued in the prison system,

including his grievance to the National Inmate Appeals office in which Dahler

indicated that he had sought assistance from the clinical program at the University

of Kansas School of Law, and the program had been unable to help him. (See R.,

Doc. 2, Ex. 9.) This allegation 5 indicates that Dahler had indeed “made an[]

effort to contact the legal assistance supplied by the defendants,” contrary to the

finding of the district court.

In the course of reaching its decision, the district court also found that

Dahler’s request for Michigan and Wisconsin legal materials was “too broad to

sufficiently describe the materials he sought.” (See R., Doc. #11, at 3 (citing

Petrick, 11 F.3d at 995).) Again, we disagree.

In Petrick, we concluded that a prisoner’s specific request for certain cases

and secondary legal material was sufficiently specific to allow a court to balance

the prisoner’s need for the material with the prison’s legitimate penological

5
In his civil suit, Dahler alleged that as of March 8, 1996, he had not
received any response from the Kansas Defender Project at the University of
Kansas School of Law. (See R., Doc. #2, Ex. 9.) However, in his Appendix in
this appeal, Dahler has attached copies of two letters he received after he filed his
civil suit. (See Aplt. App., Ex. F.) Although these letters were not before the
district court when it dismissed Dahler’s suit -- and therefore, we may not
consider them now in this appeal -- the district court may wish to review this
evidence on remand.

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interests in denying access to the material. Petrick, 11 F.3d at 993 n.2 & 996

(reversing the district court’s dismissal of the prisoner’s claims). However, we

also concluded that the prisoner’s additional “catch-all” request for a “controlling

case on accepting guilty pleas within the State of North Dakota” was excessively

broad. See id. We held that the central issue in determining whether a request is

sufficiently specific is whether prison officials may fulfill the request without

having to do independent legal research of their own. See id. (“[T]he materials

sought should be described sufficiently so that the prison can obtain them for the

prisoner without being required to perform legal research for the prisoner.”).

In Dahler’s case, he has made a specific request for annotated sets of

statutes from Michigan and Wisconsin. 6 This request is sufficiently specific to

allow prison officials to identify the legal materials Dahler wants without

conducting any legal research of their own. See Petrick, 11 F.3d at 996. To this

extent, the district court erred in finding that Dahler’s request was “too broad to

sufficiently describe” the material he wanted. (See R., Doc. #11, at 3.)

6
Dahler’s first request in his letter to prison officials asked for “(1) A
complete set of Wisconsin State Statute and annotations with Criminal and Civil
State Law procedures. (2) A complete set of Michigan State statute and
annotations dealing with criminal law and procedure.” (See R., Doc. #2, Ex. 1.)
The record does not show any modification or narrowing of this request during
the course of Dahler’s administrative grievances.

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 However, this is not the end of the inquiry. Once a court determines that a

request for legal materials is sufficiently specific, then the court must determine

whether the request is excessive, i.e., whether the prison’s current legal services

are adequate. In Petrick, we held that this determination is controlled by a case-

by-case balancing test. Id. at 996. On one side of the balance is the prisoner’s

asserted need for the requested legal materials. See id. On the other side is the

prison’s penological interest in denying access to the requested legal materials.

See id. Furthermore, only penological interests that are “legitimate” and

“reasonably related” to the prison’s policies may be considered. Id. at 994-95.

As we noted in Petrick, although the cost of providing legal materials to prisoners

is a legitimate penological concern, “the cost of protecting a constitutional right

cannot justify its total denial.” Id. at 995 (quoting Bounds, 430 U.S. at 825).

Also, after identifying the legitimate penological interests justifying the prison’s

policy, the district court must “consider reasonable alternative methods of

accommodating these potentially conflicting interests.” Id. at 996.

To the extent that the district court’s ruling reflected its view that Dahler’s

request was excessive as a matter of law, the court erred by vaulting over the

careful balancing required under Petrick. 7 See Petrick, 11 F.3d at 996. The

7
There may be cases where a prisoner’s request is so clearly overbroad that
as a matter of law it must be considered excessive. However, here the district
(continued...)

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district court reached its conclusion that Dahler’s request was excessive without

identifying what legitimate penological interests the defendants could rely upon

or what alternative measures might be appropriate. Indeed, the defendants in this

case were never served and never filed an answer in which they could present

their position on the excessiveness of Dahler’s request. Thus, a balancing of the

plaintiff’s interests against the government’s would be premature at this stage of

the case, and the court’s conclusion that Dahler’s request was excessive as a

matter of law was an abuse of discretion.

Because the record before us indicates that the district court relied on

clearly erroneous factual findings and failed to apply appropriate legal standards,

we must REVERSE and REMAND this case for further consideration.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel
Circuit Judge

7
(...continued)
court should have required the Government to address its penological interests
before engaging in the required balancing test. In doing so, and in considering
“reasonable alternative methods of accommodating these potentially conflicting
interests,” the district court should have given Dahler an opportunity to narrow
his request in response to the Government’s arguments of overbreadth.

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