Michael Rivera v. Kevin Monko

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

____________

No. 20-2531
____________

MICHAEL RIVERA,

Appellant

v.

KEVIN MONKO; WYNSTON GILBERT;
JOHN DOE

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-19-cv-00976)
District Judge: Honorable Susan E. Schwab

Argued on April 30, 2021

Before: PHIPPS, NYGAARD and ROTH, Circuit Judges

(Opinion filed: June 15, 2022)
Devi Rao [ARGUED]
Roderick & Solange MacArthur Justice Center
501 H Street, NE
Suite 275
Washington, DC 20002

Counsel for Appellant

Michael J. Scarinci [ARGUED]
Office of Attorney General of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120

Counsel for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

Prisoners have a well-settled constitutional right to
access the courts to challenge their convictions and conditions
of confinement. But how far does that right extend? Does it
follow litigants to the courthouse door, only to retreat as soon
as their complaints have been filed? Or does it reach into the
courtroom as those complaints are adjudicated? Michael
Rivera argues that, at the time of his civil rights trial, he had a

2
clearly established right to access the courts at all stages of
litigation. He appeals the District Court’s order dismissing his
complaint against two corrections officers and a prison law
librarian who, he alleges, completely deprived him of the
ability to research evidentiary and court rules ahead of and
during his trial. He contends that, as a result, he lost a
potentially meritorious claim.

The District Court found that the defendants were entitled to
qualified immunity because, at the time of the alleged
violation, a prisoner had no clearly established right to access
legal materials at the trial stage of a civil rights case.

Precedent forces us to agree with the District Court:
existing Supreme Court and Third Circuit Court of Appeals
law had not clearly established a prisoner’s right to access the
courts after he or she filed a complaint. Going forward,
however, there should be no doubt that such a right exists. The
ability of a prisoner to access basic legal materials in a law
library, such as the Federal Rules of Civil Procedure, the
Federal Rules of Criminal Procedure, the Federal Rules of
Evidence, and the rules of the court in which the prisoner is
litigating, does not stop once a prisoner has taken the first step
towards the courthouse’s door. Prisoners need to continue to
have a right to access the courts after they file their complaints;
otherwise, the right is illusory. Under the facts alleged here,
the defendants violated this right, even though they may not
have been aware at the time that they did so. Thus, while
qualified immunity bars Rivera’s claim in this case, it would
not bar similarly situated prisoners’ claims in the future.

3
 A. Background

Rivera is an inmate at SCI-Fayette. He was temporarily
transferred to SCI-Retreat in July 2017 in order to represent
himself in a trial challenging his conditions of confinement.1
He was assigned to the Restricted Housing Unit (RHU) from
which inmates may access a satellite “mini law library.”
Rivera’s trial was scheduled to begin on a Monday. On Friday,
he submitted a request slip to Lieutenant Monko, seeking
access to the mini law library. Lieutenant Monko stated that
Rivera could visit the library sometime that day and approved
his request for continuing access to the library throughout his
trial.

That evening, Sergeant Gilbert escorted Rivera to the
mini law library. The library did not contain any physical
books, only two computers. Both were inoperable. Sergeant
Gilbert told Rivera that he would “get with Lieutenant Monko
and the Law Librarian on Monday and try to get the computer
fixed.”2 He never did. The computers remained inoperable
during Rivera’s entire stay at SCI-Retreat. As a result, Rivera
had no way to access the Federal Rules of Civil Procedure, the
Federal Rules of Evidence, and the court rules.

Rivera then asked Sergeant Gilbert whether he could
borrow paper copies of the rules from the main law library
since he could not use the computers in the mini law library.
His request was denied because “the Law Librarian said no.”3
Rivera requested access to hard copies again, after his trial had

1
See Rivera v. O’Haire, No. 1:15-cv-1659 (M.D. Pa. 2017).
2
JA 37 (Am. Compl. ¶ 20).
3
JA 38 (Am. Compl. ¶ 22).

4
started, and was again refused.

Rivera alleges that this complete lack of access to legal
materials hindered his ability to represent himself at trial. He
claims that when he testified at trial, he did not know he needed
to provide foundational testimony about the unsworn
declaration and medical records he planned to introduce as
exhibits. The judge refused to admit his evidence on hearsay
grounds. The jury entered a verdict in favor of the defendants.
According to Rivera, access to the Federal Rules of Evidence
would have assisted him in being able to get his evidence
admitted and likely would have changed the outcome of his
trial.

B. Procedural History

Rivera filed a grievance shortly after the jury verdict,
alleging that he was denied access to legal materials at his trial.
He exhausted his administrative remedies through the prison
grievance process. He then filed a pro se action in
Pennsylvania state court against Lieutenant Monko, Sergeant
Gilbert, and the unnamed law librarian.4 The law librarian was
not served. Lieutenant Monko and Sergeant Gilbert removed
the case to United States District Court for the Middle District
of Pennsylvania and then moved to dismiss Rivera’s
complaint, contending that 1) Rivera’s complaint did not state
a viable access-to-courts claim, and 2) the defendants were
entitled to qualified immunity. The District Court5 awarded

4
Rivera v. Monko et al., No. 2019-cv-4215 (Ct. Com. Pl.
Luzerne Cty).
5
The parties agreed to have the motion adjudicated by
Magistrate Judge Susan E. Schwab, hereinafter referred to as

5
qualified immunity to all defendants (including the unserved
law librarian), finding that no legal authority clearly
established Rivera’s right to access his prison’s law library at
the time of his trial. Rivera appealed.

II.6

Our review of a district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(6) is plenary.7 We “accept all
factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be
entitled to relief.”8 Complaints filed by pro se litigants, such
as Rivera, are liberally construed,9 but must still “allege
sufficient facts . . . to support a claim.”10 We also exercise
plenary review over a district court’s grant of qualified
immunity, which is an issue of law.11 In qualified immunity
cases, we accept the plaintiff’s allegations as true and draw all

the “District Court.”
6
The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291.
7
See McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir.
2009) (citation omitted).
8
Black v. Montgomery Cnty., 835 F.3d 358, 364 (3d Cir. 2016),
as amended (Sept. 16, 2016) (quotation marks and citation
omitted).
9
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
10
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted).
11
Pro v. Donatucci, 81 F.3d 1283, 1285 (3d Cir. 1996) (citation
omitted).

6
inferences in his favor,12 even where, as here, a court decides
only whether a right is clearly established and not whether it
has been violated.13
III.

Properly construed under the liberal standard afforded
to pro se litigants, Rivera’s complaint does state an access-to-
courts claim. It is also clear from the complaint that Rivera’s
right to access legal materials before and during his civil rights
trial was violated. However, “[t]he standard for qualified
immunity is tilted in favor of shielding government actors and
. . . protect[s] all but the plainly incompetent or those who
knowingly violate the law.”14 Its protection is difficult to
break: immunity from liability attaches to government
officials except where 1) the plaintiff has alleged facts showing
a violation of a constitutional right, and 2) at the time of the
challenged conduct, the right the defendant violated was
clearly established.15 Only the first condition is met here. A
prisoner’s right to access the courts beyond the filing of the
complaint was not yet clearly established in the Supreme Court
or in this Court. It is now established in this Court, going
forward.

12
Torisky v. Schweiker, 446 F.3d 438, 442 (3d Cir. 2006)
(citation omitted).
13
Tolan v. Cotton, 572 U.S. 650, 657 (2014).
14
Zaloga v. Borough of Moosic, 841 F.3d 170, 175 (3d Cir.
2016) (citation omitted).
15
See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)).

7
A. Violation of a Constitutional Right

To state a claim for denial of access to the courts, an
inmate must allege both that he was denied “the tools . . .
need[ed] . . . in order to challenge the conditions of [his]
confinement” and that an actual injury resulted.16 “Where
prisoners assert that defendants’ actions have inhibited their
opportunity to present a past legal claim, they must show (1)
that they . . . lost a chance to pursue a ‘nonfrivolous’ or
‘arguable’ underlying claim; and (2) that they have no other
‘remedy that may be awarded as recompense’ for the lost claim
other than in the present denial of access suit.”17

Rivera in the allegations of his complaint has stated
such a claim: He had a potentially meritorious lawsuit
concerning his conditions of confinement. He had successfully
filed his complaint and survived pretrial proceedings.
However, because of his inability both before and at trial to
access the Federal Rules of Evidence and the Federal Rules of
Civil Procedure, he was not able to introduce important records
and statements into evidence. The jury decided against him.
He claims that if he had had access to the Federal Rules of
Evidence, he would have been able to introduce the reports and
statements into evidence and that the jury was likely to have
held in his favor. Through the denial of access to the law
library materials, his right of access to the courts was
terminated before he achieved his remedy.

Because we recognize that a prisoner has a

16
Lewis v. Casey, 518 U.S. 343, 355 (1996).
17
Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing
Christopher v. Harbury, 536 U.S. 403, 415 (2002)).

8
constitutional right of access to the courts in order to file a
lawsuit concerning the conditions of his confinement, it is
ludicrous to hold that the right of access stops once the
complaint has been filed. We know of very few lawyers who
could litigate such an action without being able to refer to the
Federal Rules of Civil Procedure and the Federal Rules of
Evidence. A pro se prisoner is much less likely to be able to
do so.

The Seventh Circuit Court of Appeals has agreed with
this standard holding that “a prisoner’s simple ability to file a
complaint is not dispositive.”18 “A prisoner states an access-
to-courts claim when he alleges that even though he
successfully got into court by filing a complaint . . ., his denial
of access to legal materials caused a potentially meritorious
claim to fail.”19

It is clear to us that when a prisoner asserts a potentially
meritorious conditions of confinement claim, his access to the
court must encompass continuing access to copies of court
rules and procedures.

The District Court did not address whether Rivera’s
complaint stated an access-to-courts claim. Instead, the court
jumped straight to the “clearly established” prong of the
qualified immunity analysis. It was within its discretion to do
so.20 However, we may affirm the District Court’s order for
any reason supported by the record.21 Here, there is no

18
Marshall v. Knight, 445 F.3d 965, 968-69 (7th Cir. 2006).
19
Id. at 696.
20
See Pearson, 555 U.S. at 243.
21
Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011)

9
pleading deficiency. Putting aside the question of whether the
right that Rivera claims was violated had been clearly
established, Rivera otherwise stated all the elements needed for
an access-to-courts claim.

1. Actual Injury

We will first consider whether Rivera was actually injured
by the defendants’ conduct because the “actual injury”
requirement of the access-to-courts standard implicates a
prisoner’s standing to bring a claim and thus implicates our
jurisdiction.22 Rivera alleges that the defendants
“intentionally” and “totally” denied him access to the Federal
Rules of Civil Procedure and the Federal Rules of Evidence
before and during his trial, which caused him to lose a
meritorious civil rights action because he was not able to
successfully introduce evidence necessary to prove his claim.23
Lieutenant Monko and Sergeant Gilbert argue that Rivera’s
alleged injury “fall[s] short of stating a viable access-to-courts
claim” because it does not describe his underlying civil rights
case in compliance with Federal Rule of Civil Procedure 8(a).24
They cite the Supreme Court’s decision in Christopher v.
Harbury, in which the Court concluded that “the underlying
cause of action . . . is an element that must be described in [an
access-to-courts] complaint . . . .”25 The Court did not,
however, go that far. It found that plaintiffs alleging denial of
access should generally comply with Rule 8(a) in describing

(citation omitted).
22
Kautzky, 494 F.3d at 680 (citing Lewis, 518 U.S. at 349).
23
JA 38–39 (Am. Compl. ¶¶ 23–25), JA 40 (Am. Compl. ¶ 29).
24
Monko and Gilbert’s Response Brief (“Resp. Br.”) 19–20.
25
536 U.S. at 415.

10
the underlying claim, but that they must only “describe the
underlying arguable claim well enough to show that it is ‘more
than mere hope,’ and [] describe the ‘lost remedy’” in such a
way that the defendants are on fair notice of it.26

Rivera has met the standard. His pro se complaint
identified the name and case number of his civil rights case,
Rivera v. O’Haire, and alleged that it was a “nonfrivolous legal
claim challenging his conditions of confinement.”27 Rivera
also alleged multiple times that his inability to research hearsay
rules as a result of the defendants’ conduct resulted in an
adverse verdict in Rivera v. O’Haire, and that he has “no plain,
adequate, or complete remedy at law to redress the wrongs”
described in his complaint.28 This put the defendants on fair
notice of the injury Rivera alleged.29 Christopher requires
nothing more.30

26
Monroe, 536 F.3d at 205–06 (quoting Christopher, 536 U.S.
at 416–17); see Erickson, 551 U.S. at 93.
27
JA 36 (Am. Compl. ¶¶ 11–12).
28
JA 39 (Am. Compl. ¶¶ 25–26), 41 (Am. Compl. ¶ 33).
Lieutenant Monko and Sergeant Gilbert also argue that
Rivera’s claim should be denied because he did not “point to
any particular hearsay exception” which would have made his
evidence admissible or “describe the contents of [the excluded]
documents.” Resp. Br. 20. We do not require pro se litigants
to allege facts so granularly. See Mala, 704 F.3d at 699 (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)).
29
See Christopher, 536 U.S. at 416.
30
Rivera also alleges that he was denied access to legal
materials during an earlier stay at SCI-Retreat in May 2017 and
another stay in August 2017. On appeal, he contends that these
allegations are less relevant than his allegations regarding the

11
 2. Causation

Lieutenant Monko and Sergeant Gilbert also contend
that they cannot be held individually liable for Rivera’s injury
because they did not cause it. They argue that they are
“correctional officers, not computer technicians,” and that
Rivera did not “plead any facts plausibly demonstrating” his
assertion that the two officers were “responsible for the upkeep
and maintenance of the law library research computers.”31
However, Rivera was not required to do so.

Rivera’s contention that Lieutenant Monko and
Sergeant Gilbert were responsible for maintaining the law
library computers is a factual allegation, not a legal conclusion.
At the motion-to-dismiss stage, we accept all plausible non-
conclusory factual allegations as true, and then determine
whether they are sufficient to support a claim for relief.32 This
is especially true of pro se pleadings, which we construe
liberally.33 Here, it is reasonable to infer that Lieutenant
Monko and Sergeant Gilbert, who worked on the RHU when
Rivera was housed there, escorted him to and from the mini
law library, and pledged to ensure the computers would be
fixed, were responsible for the computers’ upkeep at the time
of Rivera’s trial—and thus impeded his access to the courts by
failing to have the computers repaired. The same is true for the

deprivation of access during his trial in July 2017, and we
agree. We need not decide whether these allegations allege an
actual injury, because his allegations relating to the July 2017
deprivation do.
31
Resp. Br. 21; JA 39 (Am. Compl. ¶ 27).
32
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
33
Erickson, 551 U.S. at 94.

12
law librarian, who Rivera plausibly alleges “was assigned to
maintain and oversee the mini-law library within the RHU at
SCI-Retreat.”34

Whether these defendants were in fact responsible is a
fact-bound question to be determined through discovery.
Moreover, Rivera plausibly alleged that Sergeant Gilbert and
the law librarian’s refusal to permit Rivera to access hard
copies of the basic federal rules that he requested caused Rivera
to be denied access to the courts. Thus, Rivera’s complaint
does not fail for lack of causation.

B. “Clearly Established”

Because we conclude that Rivera’s complaint otherwise
states a viable access-to-courts claim, we must examine the
second prong of the qualified-immunity inquiry: whether the
right Rivera alleges the defendants violated was clearly
established at the time of his trial. It is important that we first
pin down the specific right alleged. We will not define rights

34
JA 35 (Am. Compl. ¶ 9). The District Court found that the
law librarian, though unserved, was entitled to qualified
immunity because it was “clear from the face of the complaint”
that he was shielded from liability for the same reasons as
Lieutenant Monko and Sergeant Gilbert. See Alston v. Parker,
363 F.3d 229, 234 n.6 (3d Cir. 2004) (quoting Gillespie v.
Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)) (“[T]he plaintiff
should be given an opportunity through discovery to identify
the unknown defendants, unless it is clear that discovery would
not uncover the identities, or that the complaint would be
dismissed on other grounds.”), abrogated on other grounds by
Iqbal, 556 U.S. at 678; FED. R. CIV. P. 4(m).

13
“at a high level of generality” for clearly established
purposes,35 yet “[i]t is not necessary . . . that ‘the very action in
question has previously been held unlawful.’”36 Instead, the
question is whether a “‘general constitutional rule already
identified in the decisional law’ applies with obvious clarity.”37

Lieutenant Monko and Sergeant Gilbert argue that
“properly particularizing . . . the facts of this case, the question
is” whether “an inmate who, after his case has been pending
for nearly two years, when he is temporarily transferred to
another prison closer to the courthouse and placed in
segregated housing on the eve of trial, [is entitled to] access to
legal materials.”38 That is far beyond the level of specificity
needed to put the officers on notice of possible unlawful
actions.39 Unlike, for example, certain claims in the Fourth

35
See Michtavi v. Scism, 808 F.3d 203, 206 (3d Cir. 2015)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
36
Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (citation
omitted); see Dougherty v. Sch. Dist. of Phila., 772 F.3d 979,
993 (3d Cir. 2014).
37
Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017)
(quotation marks and citation omitted).
38
Resp. Br. 11.
39
In cases analyzing qualified immunity in the access-to-courts
context, courts have generally not defined the right at issue by
circumscribing the right to the exact factual contexts of each
case, as Lieutenant Monko and Sergeant Gilbert suggest we do
here. See e.g., Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir.
1995) (discussing the right as a “right of access to the courts .
. . [that is] adequate, effective, and meaningful.”) (citations and
internal quotations omitted); Al-Amin v. Smith, 511 F.3d 1317,
1325–26 (11th Cir. 2008) (defining right as right to access

14
Amendment context,40 the violation Rivera alleges is clear-cut:
he claims that the defendants’ actions deprived him of all
access to the legal materials he needed to try his claim. The
right to meaningfully access the courts includes a right to “the
tools . . . need[ed] . . . in order to challenge the conditions of .
. . confinement.”41 Thus, the right at issue is a prisoner’s right
to meaningfully access the courts, through access to a law
library, before and during his civil rights trial.42

courts which “requires that incoming legal mail from his
attorneys, properly marked as such, may be opened only in the
inmate’s presence and only to inspect for contraband” rather
than a right to have mail opened in the inmate’s presence where
the mail in question was sent by an attorney the inmate failed
to identify to prison guards, which was the exact factual
circumstance at issue); Siggers-El v. Barlow, 412 F.3d 693,
703–04 (6th Cir. 2005) (defining right as “right to access the
courts” and explaining that “an official can still be on notice
that his conduct violates established law even in novel factual
circumstances.”) (citations and internal quotations omitted);
Simkins v. Bruce, 406 F.3d 1239, 1241–43 (10th Cir. 2005)
(defining right as “meaningful right of access to the courts” and
holding that “in the context of alleged interference with inmate
legal mail that the prisoner’s constitutional right of access to
the courts is clearly established.”) (citations and internal
quotations omitted); Allen v. City & Cty. of Honolulu, 39 F.3d
936, 938–39 (9th Cir. 1994) (holding that inmate had clearly
established right of access to a law library).
40
See Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per
curiam).
41
Lewis, 518 U.S. at 355.
42
The District Court articulated the right at issue as the “right
to assistance in the form of a law library or other legal

15
 We are left with the most difficult question, and the only
one the District Court addressed: whether the right at issue was
clearly established at the time the defendants allegedly violated
it. At the “clearly established” step of the qualified immunity
analysis, the question is “whether the officer had fair notice
that her conduct was unlawful.”43 Courts judge reasonableness
against the backdrop of the law at the time of the conduct.44
“Although there need not be ‘a case directly on point for a right
to be clearly established, existing precedent must have placed
the . . . constitutional question beyond debate.’”45 We first look
to factually analogous precedent in the Supreme Court and the
Third Circuit Court of Appeals46 to determine whether that
body of law clearly establishes the right at issue in such a way
that “a reasonable officer would anticipate liability for this
conduct.”47 We then consider whether a “robust consensus” of

assistance in presenting a claim at trial in a civil rights case.”
JA 23. But the Supreme Court found that there is no right to
“legal assistance in presenting a claim,” but rather a right to
present a claim, of which legal assistance or access to legal
materials may be a necessary component. See Lewis, 518 U.S.
at 351. So it is more accurate to define the right in terms of a
prisoner’s ability to meaningfully access the courts to present
his claim, rather than his ability to access “legal assistance.”
43
El v. City of Pittsburgh, 975 F.3d 327, 334 (3d Cir. 2020)
(quotation marks and citation omitted).
44
Kedra, 876 F.3d at 434; see Kisela, 138 S. Ct. at 1152.
45
El, 975 F.3d at 334 (quoting Kisela, 138 S. Ct. at 1152).
46
James v. N.J. St. Police, 957 F.3d 165, 170 (3d Cir. 2020)
(citing L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 247–48 (3d
Cir. 2016)).
47
Kedra, 876 F.3d at 450.

16
persuasive authority clearly establishes the right.48

The District Court granted qualified immunity because
the parties did not identify “controlling authority, or a robust
consensus of persuasive authority, holding that an inmate’s
right to affirmative assistance in the form of either a law library
or legal assistance extends to the trial stage of a civil rights
case.”49 We agree with the District Court that the right at issue
had not been clearly established at the time. A closer look at
Supreme Court and our Court’s case law shows that, properly
stated, the right the defendants violated was not beyond doubt-
--although going forward there is no doubt about the right.

1. Bounds v. Smith Establishes the Right of Access at

All Stages of Litigation

In Bounds v. Smith, the Supreme Court held that it was
“established beyond doubt that prisoners have a constitutional
right of access to the courts.”50 Before Bounds, the Supreme
Court had recognized only a negative right of access to the
courts—a right for prisoners to litigate claims without state
interference—and had never “extended [the right] . . . to apply
further than protecting the ability of an inmate to prepare a
petition or complaint.”51 Bounds broadened the right
substantially by holding that states must not only avoid

48
James, 957 F.3d at 170 (citation omitted).
49
JA 28.
50
430 U.S. 817, 821 (1977).
51
Wolff v. McDonnell, 418 U.S. 539, 576 (1974); see Johnson
v. Avery, 393 U.S. 483, 490 (1969); Ex Parte Hull, 312 U.S.
546, 549 (1941).

17
interfering with prisoners’ access to the courts, but must also
“shoulder affirmative obligations to assure all prisoners
meaningful access[.]”52 Noting that “meaningful access [] is
the touchstone,”53 the Court concluded that “the [] right of
access . . . requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
[] adequate law libraries or adequate assistance from persons
trained in the law.”54

The right to access the courts established by the Court
in Bounds was limited only by the caveat that the right must be
exercised in furtherance of “the preparation and filing of
meaningful legal papers.”55 Some courts, including the Third
Circuit, interpreted the right as freestanding: invokable by a
well-pleaded allegation that a library or legal assistance system
was inadequate, without a showing of actual injury.56 And—
importantly here—the Court did not limit the right of access’
mandate of assistance to the filing of initial legal papers.57

52
430 U.S. at 824.
53
Id. at 823 (citing Ross v. Moffitt, 417 U.S. 600, 611 (1974)).
54
Id. at 828.
55
Id.
56
See, e.g., Bieregu v. Reno, 59 F.3d 1445, 1455–56 (3d Cir.
1995); Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3d Cir. 1988)
(finding no actual injury required for “cases . . . directly
involving prisoners’ access to legal knowledge”); see generally
Sowell v. Vose, 941 F.2d 32, 34 (1st Cir. 1991) (collecting
cases).
57
The Court noted in passing that its “main concern” was
protecting the plaintiffs’ ability to file civil rights complaints
and habeas corpus petitions, 430 U.S. at 828 n.17, but did not
find that only that ability is constitutionally protected.

18
Indeed, the Court acknowledged that “a habeas corpus petition
or civil rights complaint need only set forth facts giving rise to
the cause of action,”58 yet found that law books or other forms
of legal assistance were still necessary to ensure meaningful
access to the courts. A prisoner could state a Bounds claim by
showing that he was deprived access to legal materials at any
time, no matter why or at what stage of a litigation he hoped to
use them. We accepted that proposition wholeheartedly,
holding in multiple cases that the right to access the courts
extended past the initial pleading stage.59

2. Lewis v. Casey Curtails the Right of Access

In Lewis v. Casey, 60 the Supreme Court restricted the
Bounds access-to-courts right in two important ways. First,
Lewis held that “an inmate alleging a violation of Bounds must
show actual injury” to his right to access the courts, reasoning
that Bounds did not establish a freestanding right to a prison

58
Id. at 825.
59
See Abdul-Akbar v. Watson, 4 F.3d 195, 204 (3d Cir. 1993)
(concluding Bounds would be met if “the mix of paralegal
services, copying services and available research materials” in
a prison’s satellite library “can provide sufficient information
so that a prisoner’s claims or defenses can be reasonably and
adequately presented”) (emphasis added); Peterkin, 855 F.2d
at 1042 (finding “[legal] assistance must be available for all
relevant legal proceedings”); see also Zilich v. Lucht, 981 F.2d
694, 695–96 (3d Cir. 1992) (concluding plaintiff stated access-
to-courts claim by alleging deprivation of legal materials
hindered defense in pending court proceedings).
60
518 U.S. 343 (1996).

19
law library or legal assistance program.61 Following Lewis, a
plaintiff alleging an access-to-courts violation based on an
inadequate prison law library or legal assistance program must
“demonstrate that the alleged shortcomings in the library or
legal assistance program hindered his efforts to pursue a legal
claim.”62 Second, Lewis held that only certain types of
claims—specifically, direct or collateral attacks on a prisoner’s
conviction or sentence, or civil rights suits challenging the
conditions of his confinement—could support an access-to-
courts injury.63

The District Court here found that the right to
“affirmative [legal] assistance” did not extend past the
pleading stage.64 Thus, the right Rivera alleges Lieutenant
Monko, Sergeant Gilbert, and the law librarian violated was
not “beyond debate” at the time of his trial.65

61
518 U.S. at 350–51.
62
Id. at 351.
63
Id. at 355.
64
Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011)
(overruled on other grounds by Coleman v. Tollefson, 575 U.S.
532 (2015)).
65
The District Court also cited several pre-Lewis cases from
other Courts of Appeals which involved forms of legal
assistance other than law libraries. Only the Tenth Circuit
directly upheld a system that cut off legal assistance after the
“initial pleading stage” of a suit. Compare Bee v. Utah State
Prison, 823 F.2d 397, 399 (10th Cir. 1987), with Brooks v.
Buscher, 62 F.3d 176, 182 (7th Cir. 1995) (holding that system
of “indirect access” through photocopies was adequate despite
delays in transmitting materials); Knop v. Johnson, 977 F.2d
996, 1006–07 (6th Cir. 1992) (holding that order requiring

20
 We agree. Given the “broad scope” of § 1983 qualified
immunity,66 we must hold that the right Rivera alleges
Lieutenant Monko, Sergeant Gilbert, and the law librarian
violated was not “beyond debate.”

3. No Clear Consensus Exists Among Persuasive

Authority

Because the right of prisoners to meaningfully access
the courts at their civil-rights trials was not clearly established
under binding precedent, we must examine persuasive
authority to decide whether a robust consensus exists
concerning the right of access in analogous circumstances.67

prison legal assistance staffers to “represent” inmates in “a
variety of civil matters” was “more intrusive than necessary”);
cf. Peterkin, 855 F.2d at 1042; Morrow v. Harwell, 768 F.2d
619, 623 (5th Cir. 1985) (“[F]or access to be meaningful, post-
filing needs, such as the research tools necessary to effectively
rebut authorities cited by an adversary in responsive pleadings,
should be met.”) (citation omitted); Bonner v. Prichard, Ala.,
661 F.2d 1206, 1212 (11th Cir. 1981) (rejecting argument that
right to access courts is limited to preparation of complaints
and petitions).
66
Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) (citation
omitted).
67
See Mammaro v. N.J. Div. of Child Protection &
Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (holding that
“robust consensus” of persuasive authority can clearly
establish right if applicable controlling precedent does not
exist).

21
 No robust consensus among other Courts of Appeals
sways this view. Only two courts since Lewis have directly
and precedentially addressed the temporal scope of the right of
access. As cited earlier, in Marshall v. Knight,68 the Seventh
Circuit Court of Appeals held that the right extends past the
filing of a complaint. Marshall alleged that officials reduced
his law library access to a “non-existent” level and
consequently hindered his ability to prepare for a post-
conviction evidentiary hearing.69 The district court found that
he failed to state a claim because Lewis “only requires that an
inmate be given access to the courts to file a complaint or
appeal.”70 The Court of Appeals reversed, finding that “a
prisoner’s simple ability to file a complaint is not
dispositive,”71 and “[a] prisoner states an access-to-courts
claim when he alleges that even though he successfully got into
court by filing a complaint[,] his denial of access to legal
materials caused a potentially meritorious claim to fail.”72
Marshall involved an evidentiary hearing rather than a civil
rights trial, but the plaintiff’s alleged injury otherwise closely
resembles Rivera’s.

68
445 F.3d 965 (7th Cir. 2006).
69
445 F.3d at 968–69.
70
Id. at 969.
71
Id.
72
Id. The Fourth Circuit adopted Marshall’s reasoning in a
non-precedential opinion. See Fox v. N. Carolina Prison Legal
Servs., 751 F. App’x 398, 400 (4th Cir. 2018) (citing Marshall;
reversing dismissal of access-to-courts claim where plaintiff
alleged prison impaired his ability to adequately respond to
defendants’ filings).

22
 The Ninth Circuit Court of Appeals expressed a
different view in Silva v. Di Vittorio.73 Silva involved a claim
that officials confiscated and destroyed the plaintiff’s legal
documents in retaliation for pursuing civil rights cases against
them. The district court dismissed Silva’s access-to-courts
claim on the basis that the officials’ conduct did not stop him
from filing complaints in the civil rights lawsuits.74 On appeal,
Silva “acknowledg[ed] that prison officials have no affirmative
duty to help him litigate his claims once they have been filed,”
but “argu[ed] instead that prisoners have a right . . . to . . .
challenge[] . . . the conditions of their confinement . . . without
active interference by prison officials.”75 The Court of Appeals
reversed, concluding that Silva had stated a claim for denial of
access to the courts. In dictum, the court adopted Silva’s
argument distinguishing between the right to “affirmative
assistance” and against “active interference” in access-to-court
claims, finding that “Lewis . . . limited the right of access to the
courts to the pleading stage in cases involving prisoners’
affirmative right to assistance,”76 but that it “does not speak to
a prisoner’s right to litigate in the federal courts without

73
658 F.3d 1090 (9th Cir. 2011).
74
658 F.3d at 1096–97.
75
Id. at 1097.
76
658 F.3d at 1103. Silva defined “the pleading stage” as both
the filing of the complaint “and the preparation of any filings
necessary to rebut the State’s arguments when a court
determines that a rebuttal would be of assistance.” Id. at 1102
n.9 (quotation marks and citation omitted). But Lewis found
that the right of access only entitles prisoners to assistance in
presenting their factual claims to courts, not in rebutting the
State’s arguments. See Lewis, 518 U.S. at 354.

23
unreasonable interference.”77

A two-court circuit split demonstrates that no “robust
consensus” exists. Thus, the decisions by other Courts of
Appeals does not change our conclusion that no controlling
precedent clearly established a prisoner’s right to access the
courts at all stages of a civil rights case.

Nevertheless, today we recognize that a prisoner has a
valid access-to-courts claim when he alleges that the denial of
access to legal materials—before and/or during trial—caused
a potentially meritorious claim to fail. This aligns us with the
Seventh Circuit Court of Appeals’ position that Lewis does not
confine access-to-courts claims to situations where a prisoner
has been unable to file a complaint or appeal.78 Indeed, it
would be perverse if the right to access courts faded away after
a prisoner successfully got into court by filing a complaint or
petition. Once in court, a prisoner’s need to access legal
materials is just as great—if not greater—than when a prisoner
initially filed a complaint. Thus, while qualified immunity
unfortunately bars Rivera’s claims today, it will not bar such
claims in the future.79

77
Silva, 658 F.3d at 1103.
78
Marshall, 445 F.3d at 969.
79
Our concurring colleague proposes that only States—not
state actors—have a positive duty to assist inmates in accessing
the courts, and that state actors have only a negative duty to not
interfere with such access. However, state actors may be held
liable in their personal capacities for their official-capacity
conduct, see Hafer v. Melo, 502 U.S. 21, 27 (1991), and the
Constitution imposes positive duties on the state—to be done
by its actors—to assist those whom it imprisons and restricts

24
from fulfilling their own needs. See Farmer v. Brennan, 511
U.S. 825, 832 (1994) (collecting cases); Lewis, 518 U.S. at 356
(“[W]e leave it to prison officials to determine how best to
ensure that inmates with language problems have a reasonably
adequate opportunity to file nonfrivolous legal claims
challenging their convictions or conditions of
confinement.”). Courts routinely enforce those positive duties
against state actors in their personal capacities. See,
e.g., Farmer, 511 U.S. at 830, 848–50; Palakovic v. Wetzel,
854 F.3d 209, 224–34, 226 n.20 (3d Cir. 2017); A.M. ex rel.
J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 585–
88 (3d Cir. 2004). Enforcing the duty to ensure that people
incarcerated by the state have access to “[t]he tools” they
need “to attack their sentences, directly or collaterally” and “to
challenge the conditions of their confinement” is no
different. Lewis, 518 U.S. at 355; see, e.g., Allah v. Seiverling,
229 F.3d 220, 224 n.5 (3d Cir. 2000) (holding, without
distinguishing between assistance and interference or the
duties of States and their actors, that prisoner stated a personal
capacity Lewis claim against prison officials by alleging that
“while he was in administrative segregation he did not have
access to trained legal aids and as a result was unable to file a
brief in his post-conviction appeal”).
And any concerns about Pennsylvania corrections
officers’ personal financial liability should be allayed
by Pennsylvania corrections officers’ collective bargaining
agreement, under which Pennsylvania must furnish counsel for
and indemnify officers in cases like this. Art. 33,
§ 21(b), (c), https://www.hrm.oa.pa.gov/employee-
relations/cba-md/Documents/cba-pscoa-2021-2024.pdf; see
also Dep’t of Corr. v. Pa. State Corr. Officers Ass’n, 12 A.3d
346, 350–51 (Pa. 2011) (“[A]ccording to the Chief Counsel,

25
 IV.

For the reasons discussed above, we hold that
Lieutenant Monko, Sergeant Gilbert, and the law librarian
were entitled to qualified immunity. The District Court’s order
dismissing Rivera’s complaint is affirmed.

employees are almost always defended and indemnified in
civil cases . . . .”).

26
Rivera v. Monko, No. 20-2531
PHIPPS, Circuit Judge, concurring in judgment.

The Majority Opinion articulates the right of access to
courts more broadly than ever before. As announced today, the
right of access imposes a positive duty on prison guards and
other employees in their personal capacities to supply law-
library materials or their equivalent to inmates. The Majority
Opinion recognizes that such a right is not clearly established,
and on that basis, it grants qualified immunity to two prison
guards who were sued by an inmate for violating that right.
While I agree with that outcome, I respectfully disagree with
the Majority Opinion’s expansion of the right of access.

As classically understood, a right held by one person
imposes a correlative legal duty on another. See Berisha v.
Lawson, 141 S. Ct. 2424, 2426 (2021) (Gorsuch, J., dissenting
from the denial of certiorari) (recognizing that most rights
come with corresponding duties).1 Those correlative duties

1
See generally Karl N. Llewellyn, The Bramble Bush 88 (2012
ed.) (“A man has a right only in regard to another man. . . . The
right is indeed the duty, a duty seen other end to. The relation
is identical; the only difference is in the point of observation.”
(emphasis in original)); Arthur L. Corbin, Rights and Duties,
33 Yale L.J. 501, 502 (1924) (“[A] jural right is a relation
existing between two persons when society commands that the
second of these two shall conduct himself in a certain way (to
act or to forbear) for the benefit of the first. A ‘right’ exists
when its possessor has the aid of some organized governmental
society in controlling the conduct of another person. The first
is said to have a ‘right’ against the second and the latter a ‘duty’
to the first.”); Wesley Newcomb Hohfeld, Some Fundamental

1
may be positive (to take action) or negative (to refrain from
action).2 Here, the Majority Opinion errs by imposing positive
duties on prison guards correlating to an inmate’s right of
access.

Textually, it is difficult to associate specific duties with the
constitutional right of access to courts because the precise
source of the right is unsettled.3 But an examination of

Legal Conceptions as Applied in Judicial Reasoning, 23 Yale
L.J. 16, 30–32 (1913) (modeling rights and duties as jural
correlatives); 1 William Blackstone, Commentaries *118–19
(“Now the rights of persons that are commanded to be observed
by the municipal law are of two sorts; first, such as are due
from every citizen, which are usually called civil duties; and,
secondly, such as belong to him, which is the more popular
acceptation of rights or jura. Both may indeed be comprized
in this latter division; for, as all social duties are of a relative
nature, at the same time that they are due from one man, or set
of men, they must also be due to another.” (emphases in
original)).
2
See Wesley Newcomb Hohfeld, Fundamental Legal
Conceptions as Applied in Judicial Reasoning, 26 Yale L.J.
710, 724–25 (1917) (comparing positive and negative duties);
see also Joseph William Singer, The Legal Rights Debate in
Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis.
L. Rev. 975, 1044 (1982) (citing John W. Salmond, First
Principles of Jurisprudence 172 (1893)).
3
See Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002)
(identifying several different constitutional provisions that
may serve as the basis for the right). It may be that the
identification of multiple, separate sources of the right of

2
precedent reveals a general rule and a modified rule for
inmates. Generally, the right of access imposes only negative
duties: States and state actors cannot impede access to courts.
See, e.g., Tennessee v. Lane, 541 U.S. 509, 523 (2004). But in
the prison setting, incarceration restricts inmates’ access to
courts. And that reality has led to two modifications to the
right of access for prisoners. First, the Supreme Court has
imposed a positive duty on States in their sovereign capacities
to provide inmates with law-library materials or their
equivalent. See Bounds v. Smith, 430 U.S. 817, 824 (1977)
(requiring “States to shoulder affirmative obligations to assure
all prisoners meaningful access to the courts” (emphasis
added)).4 Second, the negative duty in the prison setting is not

access reflects the specific context in which the right has been
invoked. Compare, e.g., Chambers v. Balt. & Ohio R.R. Co.,
207 U.S. 142, 148 (1907) (grounding the right of access to
courts in the Article IV Privileges and Immunities Clause
where an out-of-state plaintiff sought to bring suit in a
neighboring state’s courts) with Boddie v. Connecticut,
401 U.S. 371, 380–81 (1971) (grounding the right in the
Fourteenth Amendment Due Process Clause where filing fees
prevented a couple from having an opportunity to be heard on
a divorce action). An inmate’s right of access for a direct
appeal of a conviction or sentence may have a different
constitutional grounding than the right has in the context of a
collateral attack on a criminal judgment or a civil action
challenging the conditions of confinement.
4
See also Lewis v. Casey, 518 U.S. 343, 355 (1996)
(explaining that the required materials or services are those
needed for inmates “to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their
confinement”); Simmons v. United States, 142 S. Ct. 23, 24

3
as rigorous as it would otherwise be – it allows restrictions on
access for “legitimate penological interests.” Turner v Safley,
482 U.S. 78, 89 (1987); see also Lewis v. Casey, 518 U.S. 343,
350 (1996) (explaining that the right of access “prohibit[s] state
prison officials from actively interfering with inmates’” right
of access to courts). Thus, an inmate’s right of access imposes
a positive duty on States (to supply rudimentary law-library
materials or their equivalent) and a mitigated negative duty on
States and state actors (to refrain from impeding access to
State-provided law-library materials without legitimate
penological justification). But the right of access does not
impose a positive duty personally on state actors, such as
prison employees, to ensure that prison law libraries are
furnished and stocked with the required materials.5

(2021) (Sotomayor, J., statement respecting the denial of
certiorari) (emphasizing that prisons have the obligation to
provide legal materials and tools inmates need to attack their
sentences); Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir.
2000); but see Lewis, 518 U.S. at 365 (Thomas, J., concurring)
(finding no constitutional basis for requiring the government to
finance an inmate’s right of access).
5
The Majority Opinion rejects any distinction between States
and individuals in the allocation of positive duties and negative
duties in the context of the right of access. Instead, it imposes
on individuals the same positive duty that States, in their
sovereign capacities, have to supply and furnish law-library
materials for inmates. In so doing, it takes comfort in extra-
record evidence suggesting that corrections officers will be
indemnified for breaching such a duty. But an indemnification
agreement should not influence the announcement of a new
constitutional obligation.

4
 Under these rules, the prison guards here are entitled to
judgment as a matter of law. Rivera claims that the guards
violated his right of access while he was temporarily housed at
a prison closer to the federal courthouse holding a two-day jury
trial on his pro se excessive-force claim against other prison
guards. See Rivera v. O’Haire, No. 1:15-cv-1659 (M.D. Pa.).
Before trial, Rivera wanted law-library materials, and two
guards at his temporary prison took him to the mini law library,
but it lacked the resources that he wanted. Rivera and one of
the guards attempted to obtain those materials from the
internet, but they could not log on. Critically, the materials that
Rivera wanted were unavailable because the prison did not
provide them – not because either guard restricted his access to
otherwise available resources. Thus, on the undisputed facts,
neither guard interfered with Rivera’s access to prison law-
library materials, much less did either guard do so without
legitimate penological justification.

Rivera went to trial and lost, but nothing in the record
indicates that he raised his access issue in that proceeding.
Instead, he sued the two guards at the prison where he was
temporarily housed for violating his right of access. The
District Court rejected Rivera’s claim at summary judgment.

In validating Rivera’s right-of-access claim, the Majority
Opinion dramatically expands the right. It does so by grafting
the State’s positive duty onto individual-capacity actors. But
the State as sovereign, not an individual-capacity actor,
effectuated the inmate’s incarceration, and thus, any positive
duty should be borne only by the State. By extending the
positive duty beyond States, the Majority Opinion makes
guards and other prison employees personally liable if a prison
law library fails to furnish law-library materials or their

5
equivalent. That is new; that is bold; and that is a
misapprehension of the Constitution.

6