Gaines v. Maynard

SUMMERS, Justice.

Plaintiffs are American Indian prisoners seeking a writ of mandamus against their Warden. Boiled down, their suit is for the appointment of legal counsel based on an alleged denial of access to the courts. The District Court of Pittsburg County dismissed the case five days after it was filed. On certiorari to the Court of Appeals, which affirmed, our sole question is whether the trial court’s dismissal was proper. We conclude that at least one of the plaintiffs’ claims was properly dismissed, but that the pivotal issue of entitlement to court appointed attorney for alleged lack of access to the courts cannot be fully resolved on the record before us. We vacate the opinion of the Court of Appeals, reverse in part and affirm in part the order of the trial court, and remand with instructions.

The plaintiffs filed a lengthy application for writ of mandamus, affidavits in forma pauperis, an affidavit by plaintiff Gaines supporting the application,1 and after the order dismissing the case, a request to amend their application. The application sought the appointment of an attorney to (1) prosecute actions to attack their “convictions”, and (2) prosecute yet unfiled civil actions on the behalf of the plaintiffs against the Oklahoma Department of Corrections and various officials thereof. The application did not seek any relief other than the appointment of an attorney.

1. Access to the Courts and Plaintiffs’ Application for Mandamus.

The plaintiffs’ filings*1 in the trial court are not clear on this point, but in their petitions in error they state that they seek the appointment of counsel “to perfect pending litigation and pending appeals into the United States Supreme Court”. The “appeals” to the United States Supreme Court seek review of actions of this Court in three cases and review of Hedgpath’s criminal conviction affirmed by the Court of Criminal Appeals in 1979.2

A court-appointed attorney to collaterally attack Hedgpath’s criminal conviction is not appropriate. Counsel may be appointed to assist indigent defendants in post-conviction proceedings, 22 O.S.1981 § 1082, and for collateral proceedings in capital cases, 22 O.S.Supp.1987 § 1360. However, Hedgpath’s application did not seek post-conviction relief, and § 1360 is not implicated. We note that Hedgpath was convicted of Manslaughter in the First Degree, received a sentence of thirty-five years imprisonment, and had counsel for his appeal. Hedgepath v. State, supra, at *675note 2. The trial court’s denial of a writ of mandamus for a court-appointed attorney to further attack Hedgpath’s criminal conviction was correct and is affirmed.

The plaintiffs also requested the appointment of counsel to prosecute appeals of civil cases to the United States Supreme Court and future civil cases against the Department of Corrections and its various officials. The appeals attack the plaintiffs’ “convictions” for violating prison rules and regulations, i.e., administrative determinations by prison officials that the plaintiffs were guilty of institutional misconduct. The plaintiffs did not attack the correctness of these institutional misconducts in the mandamus proceeding, and the correctness of those misconduct reports is not before us. The only question before us is whether the plaintiffs are entitled to appointed counsel to assist them with their civil cases.

The plaintiffs attempted to show the trial court that they were denied access to the courts, and because of such denial were entitled to appointed counsel. Clearly, a prisoner has a constitutional right of access to the courts, and prison authorities must “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.” Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). See also, Prock v. Dish Court of Pittsburg County, 630 P.2d 772, 775 n. 4 (Okla.1981).

Much of the plaintiffs’ paperwork filed in the trial court, as well as in this Court, is simply incoherent. However, the plaintiff’s petition contains the following allegations in support of their “access” claims: 1. Plaintiffs are barred from adequate and meaningful access to a sufficient law library; 2. Prison law clerks are prevented from acting as an attorney for other inmates; 3. Plaintiffs are denied access to typewriters and means to print appeal documents for appeals to the United States Supreme Court; 4. Plaintiffs are denied free pens and sufficient paper for petitioning the courts; 5. Plaintiffs are denied free mail for administrative appeals and for letters to state and federal officials; 6. Plaintiffs are denied free postage for mail to the courts; 7. Plaintiffs’ uncertified mail addressed to the courts has been either misplaced, confiscated, or delayed indefinitely; 8. Prison authorities prohibit non-prisoners from providing postage stamps to the plaintiffs; 9. Prison authorities confiscate the plaintiffs’ property as punishment for the plaintiffs’ efforts in petitioning the courts; 10. The prison law library is inadequate because it lacks treatises on Indian law, treatises between the United States and the American Indians, and treatises on pleading and appeals; 11. The prison authorities prohibit non-prisoners from sending the plaintiffs copies of treaties between the United States and American Indians; 12. ■ The prison authorities punish the plaintiffs by a policy concerning indigency; 13. The prison authorities improperly credit funds to the plaintiffs’ institutional trust accounts so that the plaintiffs will not be classified as indigent but the money in said accounts is not available for the prisoners to spend for litigation costs; 14. The prison authorities have not established policies for administrative appeals from administrative decisions of prison officials to the district courts; 15. Prison authorities have not provided for administrative evidentiary hearings with a preserved record for later judicial review; 16. Prison authorities have not provided the plaintiffs with a means to appeal a decision of the Oklahoma Supreme Court to the United States Supreme Court; 17. The plaintiffs have a “property right” to a specific amount of time to spend in the law library and such is being denied to them. Some of these allegations clearly require more facts to invoke judicial inquiry, some allegations need further specificity to clarify the nature of the complaint, and some need no further pleading to put the claim at issue.

For example, their claim of denial of access to a law library needs additional facts. Prison authorities may deny access to law library when the prisoners receive other adequate legal assistance. Tous*676saint v. McCarthy, 801 F.2d 1080, 1110 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987), (the court explained that if direct access to a library is denied then a state may meet its Bounds obligations by various ways, one of which is the use of prison law clerks). The plaintiffs were evidently being assisted by prison law clerks, since their filings in this Court describe a problem they had as to the identity of the clerk who was to make copies of their petition in error eventually filed herein. No inquiry was made as to the assistance of such clerks, and whether such assistance provided the plaintiffs with a reasonably adequate opportunity to present legal claims. Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir.1988), cert. denied, 488 U.S. 863,109 S.Ct. 162,102 L.Ed.2d 133 (1988), (the relevant inquiry is whether a prisoner has a reasonably adequate opportunity to present his claim).

The plaintiffs’ application may also be construed as a complaint of insufficient access to a law library, as opposed to a complete denial of such access. If so, this claim needs clarification, since the legal analysis of such a claim is different from one claiming a complete denial of library access. Sands v. Lewis, 886 F.2d 1166, 1170-1171 (9th Cir.1989). Restricted access to legal materials in a reasonable manner may be constitutionally permissible in light of legitimate security considerations. Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir.1987); Caldwell v. Miller, 790 F.2d 589, 606 (7th Cir.1986). See also, Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985) (restricted access to a law library is not per se denial of access to the courts); Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978), (same). In order to state a claim for relief a complaint of limited access to a library must be accompanied with (1) a showing of prejudice or (2) an actual injury to the prisoner’s attempts at litigation. In Magee v. Waters, 810 F.2d 451, 452 (4th Cir.1987), the Court upheld summary judgment against a prisoner’s claim of limited access to a jail library when there was no actual injury or specific harm caused from the limited access.

On the other hand, the plaintiffs’ complaint of seizure of property as a punishment for their conduct in filing lawsuits needs no further explanation by the plaintiffs to invoke judicial inquiry. Generally, a prison official may not retaliate against a prisoner for filing lawsuits. McDonald v. Hall, 610 F.2d 16, 18 (1st Cir.1979); Mil-house v. Carlson, 652 F.2d 371, 373-374 (3d Cir.1981); Russell v. Oliver, 552 F.2d 115, 116 (4th Cir.1977); Matzker v. Herr, 748 F.2d 1142, 1150-1151 (7th Cir.1984); Sanders v. St. Louis, 724 F.2d 665, 666 (8th Cir.1983); Bridges v. Russell, 757 F.2d 1155 (11th Cir.1985). Specifically, prison officials may not confiscate property in retaliation for lawsuits filed by a prisoner. Wright v. Newsome, 795 F.2d 964, 968 (11th Cir.1986).

This application for mandamus, being a “special statutory proceeding”, is not governed by the Oklahoma Pleading Code. Committee Comment to 12 O.S.1985 Supp. § 2001. Whether the plaintiffs’ lack of factual specificity is due to their non-access to legal materials, the non-existence of facts necessary to show a meritorious claim, or something else, is not apparent from the face of the record. Thus we find that this case requires remanding to the trial court to give the plaintiffs an opportunity to plead with more specificity the nature of their claims of denial of access to the courts, subject, however, to part II herein.

II. Mootness.

We note that the plaintiffs appear to now be located at a prison different than when their application for mandamus was filed. Their filings before this Court show access to a considerable amount of legal authority. Their typed appellate brief is 34 pages long, and contains a 10 page index of authority citing opinions of the United States Supreme Court, federal circuit courts, federal district courts, Oklahoma Supreme Court, federal and state statutes, provi*677sions of the federal and state constitutions, and four treaties between the United States and American Indians. Courts have examined prisoner filings to determine if they demonstrate access to legal materials. See, Sands v. Lewis, supra, DeMallory v. Cullen, 855 F.2d 442, 449 (7th Cir.1988), and Twyman v. Crisp, supra. In Twyman a 38 page trial court response by prisoner was noted. In Mann v. Smith, 796 F.2d 79, 84 (5th Cir.1980), prisoner’s action in filing a legally sufficient complaint showed access to the courts. In Wanninger v. Davenport, 697 F.2d 992, 994 (11th Cir.1983), the court stated that “appellant’s complaint in the federal district court and his pro se brief on appeal both demonstrate that he has had access to the courts and a considerable amount of legal material.” However, the mere filing of a complaint is not dispositive of the access issue. Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir.1985). The appellants’ brief raises the issue of whether their claims of non-access to legal materials, pen and paper, and a typewriter are now moot.

The plaintiffs’ claim to an attorney appointed at the expense of the Department of Corrections is predicated upon non-access to a law library or persons trained in the law. In a mandamus proceeding a plaintiff must have a clear legal right to the remedy sought. Oklahoma Gas & Electric Co. v. Dish Court for the Fifteenth Judicial Dish, 784 P.2d 61, 63 (Okla.1989). A plaintiff will not have a clear legal right to the requested relief if such request has become moot. See, State ex rel. St. Louis-San Francisco Ry. Co. v. Boyett, 183 Okl. 49, 80 P.2d 201, 205 (1938), See also, Rogers v. Excise Bd. of Greer County, 701 P.2d 754, 761 (Okla.1984). However, the plaintiffs’ access claims are not moot if they are capable of repetition, and yet evading review. In re D.B. W., 616 P.2d 1149, 1151 (Okla.1980); B.J.B. v. Dish Court of Oklahoma County, 611 P.2d 249, 250 (Okla.1980). The trial court is the proper forum to determine whether the plaintiffs’ claims are now moot.

The plaintiffs’ claims to an attorney are also predicated upon the absence of a less expensive and alternate remedy. A writ will not be granted if such would create confusion with the fiscal affairs of a governmental subdivision of the state. State ex rel. Cartwright v. Dunbar, 618 P.2d 900, 913-914 (Okla.1980); State ex rel. St. Louis-San Francisco Ry. Co. v. Boyett, 80 P.2d at 205-206. See also, Abel v. Madden, 738 P.2d 1340, 1343 n. 4 (Okla.1987) and the cases cited therein. The Oklahoma Department of Corrections has apparently attempted to meet its obligations under Bounds by providing prison law libraries and prison law clerks. If the plaintiffs are denied reasonably adequate access to the courts then the appropriate remedy may merely be a slight alteration of the system already in place. Such a remedy might be fashioned by taking into consideration legitimate penological goals such as institutional security and providing court access to the greatest number of prisoners. A remedy providing access to the courts would effectively moot any claim to an appointed attorney. The plaintiffs do not have a clear legal right to the appointment of counsel if they are afforded access to the courts by a constitutionally adequate method. See, United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir.1982), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983), where it was held that a prisoner may not reject a constitutionally sufficient means of access and insist on a method of his or her choosing. This also is a matter which is fact-dependent and left for consideration of the trial court.

The opinion of the Court of Appeals is vacated, the order of the trial court is affirmed in part and reversed in part, and the cause is remanded for proceedings consistent with this opinion.

LAVENDER, DOOLIN and ALMA WILSON, JJ., and JOHNSON, Special Judge (appointed to take place of KAUGER, J. who recused), concur. OPALA, C.J., concurs in part, dissents in part. *678HODGES, V.C.J., and SIMMS and HARGRAVE, JJ., dissent.

. Various filings of the plaintiffs refer to a similar affidavit by plaintiff Hedgpath in support of the application. Many of the arguments in the plaintiffs' brief on appeal purportedly quote from Hedgpath’s affidavit. However, the record before the court does not contain such an instrument, and the record on appeal cannot be enlarged beyond that certified by the Clerk of the District Court. Chamberlin v. Chamberlin, 720 P.2d 721, 723 (Okla. 1986).

. The three cases of this court are: Hedgpath v. Dist. Court of Oklahoma County, No. 61,902 (Okla. January 30, 1986), (unpublished opinion); Harrod and Hedgpath v. Dept. of Corrections Appellate Review Authority, No. 66,002 (Okla. April 7, 1986), (dismissed by Order); and Hedgpath v. Joseph Harp Disciplinary Committee, No. 66,051 (Okla. March 11, 1986), (dismissed by Order). Hedgpath’s criminal conviction is reported at Hedgepath v. State, 600 P.2d 348 (Okl.Cr.1979).